Thursday, February 28, 2019

People v. Amezcua & Flores (Cal. Supreme Ct. - Feb. 28, 2019)

I read a lot of the California death penalty cases.  Indeed, for the past thirty years, all of them.

Even having read all those cases, with some incredibly terrible crimes, it's hard to have a lot of sympathy for these two defendants.  Their systemic crimes are pretty darn bad.  As are the things they say thereafter.

Plus, I gotta say, check out pages 49 through 54 of the opinion.  Both of them are pretty darn sophisticated in assessing whether being sentenced to death actually means they're going to die.  I'm not sure I agree with them about their tactical decision.  But they definitely thought about it at some length.  They thought it made more sense for them to be sentenced to death rather than life.  (And, in a bizarre reality, they cared -- weirdly, for good reason -- much more about the size of their restitution orders than whether they were sentenced to death or not.)

What a weird world in which we live.

Darrin v. Miller (Cal. Ct. App. - Feb. 21, 2019)

One of the downsides of deciding appeals that are relatively low value -- and hence may have less well developed briefing -- is that the judges may miss out on potentially relevant information.

That's the thought I had when I read this opinion.

It's a case out of Lake County.  Not the most populous county in the state, to be sure.  It involves a dispute between unfriendly neighbors.  One neighbor says the other trespassed on her property, took down a wire boundary fence, said bad things to her and her family, etc.  The point is:  This is not a multi-million dollar case.  So it only justifies a certain amount of litigation.

The plaintiff nonetheless gets a creative lawyer who files an Elder Abuse claim against the neighbor.  She can do that because she's 81 years old, so not only does she get sympathy -- who screams at an 81-year old?! -- but because if you're over 65, you've got a potential Elder Abuse claim.

But that statute is almost always invoked against family, carekeepers, rest homes, etc.  Can you really file an Elder Abuse claim just against a mean neighbor?

The trial court thought not.  But the Court of Appeal reverses, holding that you can.

It's a statutory interpretation case.  It's all about how you read the statute.  The Court of Appeal thinks it can do that just fine, thank you very much, and also doesn't say very nice things about the quality of the briefs by the respondent.

The statute says someone older than 65 can sue for "elder abuse," and that term is defined as “[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment [of an elder] with resulting physical harm or pain or mental suffering.”  "Mental suffering" in term is defined as "fear, agitation, confusion, severe depression, or other forms of serious emotional distress that is brought about by forms of intimidating behavior, threats, harassment, or by deceptive acts performed or false or misleading statements made with malicious intent to agitate, confuse, frighten, or cause severe depression or serious emotional distress of the elder or dependent adult.”

Justice Miller reads that statute in a straightforward fashion.  She says, essentially, that, yes, the defendant hadn't allegedly engaged in “[p]hysical abuse, neglect, abandonment, isolation, [or] abduction" under the statute.  Yeah, those are admittedly the types of things that caretakers do, and hence is what the statute undeniably focuses on.  But, she says, that definition ends by saying that "other treatment with resulting . . . mental suffering" can qualify as elder abuse as well.  And here, given the broad definition of "mental suffering," the acts here -- even though undertaken by a non-caretaker -- qualify as "other treatment".  So the statute applies.

It makes sense.  Applies the words that are employed by the statute in a straightforward fashion.  What more could you want?

Okay.  Maybe.  Good job.

But as I was looking at the list in the statute, here was my thought.

Preface:  I'm not a big Latin guy.  Failed it -- literally -- in college.  Don't feel like I have to say particularly fancy clauses to impress other people.  Prefer to speak the one language that I actually know well.

That said, there's a Latin phrase -- a principle of statutory construction -- that seems pretty relevant to this case.  One that's nowhere in the opinion, and (perhaps) not in the briefing.

Ejusdem generis.

It's Latin for "of the same kind."  When a statute has a list, and they're all types of things of a particular type or class, we often exclude from the coverage of that statute (i.e., not part of the list) things that aren't part of that class.  Even if the plain language of the statute covers the thing.

For example, if a statute says that only "automobiles, trucks, motorcycles, tractors, and other motor-powered vehicles" are permitted to use, say, a given road, that list probably doesn't include airplanes or boats or submarines.  Even those are indeed "motor powered vehicles" and hence facially included under the statute.  You nonetheless read the statute the other way (unless there's a good reason not to).

At least that's a general rule.  And one that seems especially relevant when, as here, the list includes certain types of things and we're trying to figure out what the statute means when is has a residual clause that says "other".  'Cause that's even broader than the example I used.  You might want to say that if everything that's in the list is part of the same class -- e.g., are all types of things that only caretakers or people in a familial-type relationship can really do -- then maybe we should indeed do what the trial court did and limit that "other" category accordingly.  Even though "other" does indeed mean everything else that satisfies the statute.

Now, I'm not totally confident that everything in the list here is necessarily part of the same class.  It does indeed seem that the statute -- and the list -- is focusing on stuff that caretakers might do.  They hit them ("physical abuse"), "neglect" them, "abandon[]" them, "isolat[e]" them, and "abduct[]" them. That's definitely a list of things we commonly see in Elder Abuse cases, and since all of them seem to be of a class of things that caretakers do (indeed, some of them, like neglecting them, can likely only be actionably done by caretakers), maybe the trial court got it right.  Though I could totally see the contrary argument as well:  that anyone, for example, can physically abuse someone elderly, so the list is not necessarily all of a certain class.

The point is simply that it seems like this commonly applied principle of statutory interpretation -- ejusdem generis -- seems like definitely something that the Court of Appeal should at least consider. Yet it's nowhere even mentioned in the opinion, much less discussed.

Which I'm confident it would be -- in the briefs, at a minimum -- if this was a $50 million case with reams of fancy lawyers on both sides working full time on the thing.

But this is a civil TRO case involving neighbor Sandra Miller allegedly being mean to Jude Darrin, the 81-year old neighbor. So maybe the assistance the Court of Appeal obtains isn't always as fulsome as in those more expansive -- and expensive -- disputes.

The long and short of all this:  It might be helpful to at least add a couple of Latin words to this opinion.  Something to consider, at least.

Wednesday, February 27, 2019

MDQ LLC v. GKCJ (Cal. Ct. App. - Feb. 27, 2019)

I'm a reasonably intelligent guy.  Familiar with a lot of sophisticated legal jargon.

But even my eyes glazed over when I read Justice Grimes' summary of today's opinion:

"The question in this interpleader action is which adverse claimant was entitled to the interpleaded funds: a judgment creditor with a properly recorded judgment lien, or an assignee who did not file a financing statement with respect to distributions irrevocably assigned to it by the judgment debtor before the judgment lien was recorded. The answer depends on whether the assignment created a security interest that had to be perfected (but was not) by the filing of a financing statement under California’s Uniform Commercial Code (UCC or the Code)."

Not exactly the most exciting legal thriller ever invented.

** Spoiler Alert **

Respondent wins.

Ryan v. Real Estate of the Pacific (Cal. Ct. App. - Feb. 26, 2019)

Sometimes it's not really the trial court's fault that it made a mistake, and hence gets reversed.  To take but one example -- here, the losing party relied on Argument X below, but Argument X was meritless, and the trial court rejected it and entered judgment for the winner.  On appeal, the losing party totally abandons Argument X and instead relies on a totally different Argument Y.  With which the Court of Appeal agrees, reversing the judgment below.

Not the trial court's fault (though it might have done some research itself).  Not the Court of Appeal's fault, which is permitted -- though not required -- to consider new legal arguments on appeal.

Just an example of the Court of Appeal being (rightly) concerned about obtaining justice.  Even if it means reversing a decision below where the trial judge made a decision based on the information and arguments that he had available to him.

Monday, February 25, 2019

Orchard Estate Homes v. Orchard Homeowner Alliance (Cal. Ct. App. - Feb. 22, 2019)

Read about the trials and tribulations of living around Palm Springs and having your neighbors rent out their homes to short term renters.

The HOA had an election, and most of the homeowners (62%) voted to bar short term rentals.  But there's a supermajority requirement, so it failed.  At which point that same group tried to eliminate the supermajority rule.

The usual procedural machinations.  I can't imagine what a pain it'd be to have an ongoing fight with all of your neighbors about this issue.  Hard feelings on both sides, I'd imagine.

Nice and warm there, though.  At least vis-a-vis the weather.

Friday, February 22, 2019

People v. Escarcega (Cal. Ct. App. - Feb. 20, 2019)

This opinion is a reminder that it's not just drunk driving that can put you in prison.  As well as seriously injure others:

"On July 15, 2015, at 9:20 p.m., defendant was driving a 2012 Hyundai Elantra eastbound on Palmdale Blvd. He was on his way to work at Adelanto Detention Facility. That stretch of road has one lane of traffic in each direction and is divided by a broken yellow line. There are no streetlights. The speed limit is 55 miles per hour.

As defendant approached 110th Street, he saw two vehicles ahead of him. Shannon Emery’s Chevrolet Monte Carlo sedan was directly in front of him. A large delivery box-truck was in front of Emery. Neither Emery nor defendant could see whether there were any cars in front of the delivery truck, which also blocked their view of any headlights from oncoming traffic. Defendant estimated he was driving 45 miles per hour at this point, but Emery testified that she was going 70 miles per hour.

Though defendant could not see beyond the truck, did not know whether there were more cars in front of it, and could not tell how much space there was between Emery and the truck, he decided to pull into the westbound lane and pass both vehicles. When defendant pulled past Emery and attempted to pass the truck, however, he discovered it was following two or three more cars. As defendant drew parallel with the delivery truck, he saw headlights coming towards him. The headlights belonged to a Lexus sedan carrying Jessica, the driver, and her two nephews, Carlos (age five) and Gabriel I. (age four). Jessica was driving about 65 miles per hour in the westbound lane.

Emery, who by this time had seen Jessica’s headlights, eased off her gas pedal to allow defendant to pull in front of her. According to his statement to authorities, defendant tried to reenter the eastbound lane in front of Emery, but there wasn’t enough room, so he slowed down to retake his original spot. By that point, however, another car had pulled behind Emery, and he couldn’t get back in. Defendant swerved onto the left shoulder. Meanwhile, Jessica had seen defendant driving towards her, had made the same decision he did, and swerved toward the same shoulder. The cars collided, and Jessica blacked out briefly at the moment of impact. Emery saw the collision and called 911.

According to California Highway Patrol Officer Nathan Parsons, who testified as an expert on collision reconstruction, defendant had continued to accelerate until two and a half seconds before the collision. Five seconds before the collision, defendant was driving 67 miles per hour. Four seconds before the collision, he was driving 71 miles per hour. Three seconds before the collision, he was driving 73 miles per hour. And though defendant first stepped on his brakes two and a half seconds before the collision, he did not hit them hard enough to engage the Antilock Braking System until one second before impact. At the moment of impact, defendant was driving 42 miles per hour. Jessica was driving approximately 37 miles per hour.

When Jessica regained consciousness, her hands were on the steering wheel. Glass from the shattered windshield had cut her wrists. The engine was on fire. The children were screaming in the back seat. Defendant stumbled out of the passenger side of his car as Jessica tried to free herself. She yelled for help 10 to 20 times, but defendant just looked at her and walked away. Eventually, bystanders came to her aid, and Jessica and the children were transported to a hospital. . . .

Carlos went into hyperemic shock, had a collapsed lung, and was put on life support with a chest tube. He was in a coma for 10 days. He received multiple unsuccessful skin grafts from his legs to his arm, which required his mother to tend to an open wound from his wrist to his elbow. Carlos underwent more than 10 surgeries. He stayed at LAC +USC Medical Center from July 15, 2015, to August 4, 2015. Although he returned home briefly, he ultimately required additional surgeries and another hospital stay. Carlos, who was seven years old at the time of trial, showed the jury the injuries to his chest and legs. The jury also saw photographs of various skin and muscle grafts on his legs, chest, and arm.

Jessica remained in the hospital for three weeks. She had hip, knee, and ankle surgery to repair serious fractures; her ankle had to be “completely reassembled.” Jessica suffered additional fractures to her skull, four ribs, sternum, and lower spinal disk, as well as internal bleeding. She was confined to a wheelchair for six months, used a walker for three months, and had to modify her home to accommodate her inability to walk. She testified that she expected to undergo at least one more knee surgery."


The jury took just a little over an hour to find the defendant guilty of reckless driving that caused great bodily injury.  The trial court sentenced him to six years in prison.

The Court of Appeal affirms.

Thursday, February 21, 2019

People v. Bueno (Cal. Ct. App. - Feb. 19, 2019)

I don't know many of the underlying facts, since they aren't recounted in this opinion.  What I do know is that Vanessa Bueno was driving a vehicle while intoxicated and rolled it over, which in turn ejected her eight-year old son -- killing him -- as well as injured her teenage daughter.  And that Ms. Bueno pled guilty to gross vehicular manslaughter and was sentenced to 11-plus years in prison.

I can only imagine that pain and anguish caused by being directly and completely responsible for the death of your eight-year old child.  I'm not really sure how that plays into how much prison time you get for that offense.  Obviously, the mother gets sentenced to prison -- it's a serious crime.  Whether you need to pile on 11 years in addition to the lifelong pain of being responsible for your son's death is something I can't ascertain from a cold appellate record.

Ultimately the Court of Appeal remands for Ms. Bueno to be resentenced by the same judge that took her plea, since she never waived that right.  Maybe she'll get the same sentence.  Maybe not.

One thing's for sure.  Don't drink and drive.

Particularly when your kids are in the car.

Wednesday, February 20, 2019

Westport Ins. Co. v. California Cas. Ins. Co. - Feb. 20, 2019)

It's been a full week since the last published Ninth Circuit opinion.  A full week.  I know it's cold, and tough to get work done.  But that's precisely when we need to snuggle up in front of a warm fireplace and read appellate opinions for fun.  So let's get cracking, Ninth Circuit.

Fortunately, today, we finally get a published opinion.  Unfortunately, we only get one, and its about how to allocate a settlement payment between two insurance companies.  Zzzzzzzz.  I mean, sure, it totally matters to the relevant insurance companies.  And we're talking about a fair chunk of change here -- the settlement is for various molestation claims made against the Moraga School District and three of its administrators when a middle school teacher allegedly touched some students, and for the three plaintiffs, the total settlements were $15.6 million.

So, yes, a lot of money at stake.  And this particular insurance company's share of that liability was held by the district court to be $2.6 million -- plus another $750,000+ in prejudgment interest.  More than sufficient to justify hiring a law firm to try to get that allocation eliminated or reduced.

But for the rest of us, it's not a particularly enthralling case.  Particularly since the panel just ends up affirming the district court's decision -- largely for the same reasons articulated below.  Lots of legal arguments on appeal, but none that were persuasive.

So we now know that an excess insurer can indeed be forced to contribute to a primary insurer's settlement payment on behalf of a district and its administrators.  Okay.  Glad to hear it, I guess.

But for more excitement from the Ninth Circuit, we'll have to await another day.

Hopefully not another week.  We miss you, Ninth Circuit.

Monday, February 18, 2019

Sturm v. Moyer (Cal. Ct. App. - Feb. 15, 2019)

They say that law reviews are too theoretical these days, and don't actually help shape the actual development of the law.  I'm somewhat sympathetic to that view.

But this opinion talks at length about a particular law review article.  One published in the San Diego Law Review, no less.

So that's one exception.

Ultimately, the Court of Appeal decides to reject the arguments advanced by Professor Reppy in the relevant law review article.  But that doesn't mean the piece is irrelevant.  It still frames the debate and assists the court in deciding what to do.

The underlying merits are also worth discussing as well.  The Court of Appeal holds that a prenup can validly be attacked under the Uniform Voidable Transactions Act; e.g., as an agreement that defrauds creditors.  I'm a bit suspicious of that result.  And it also has immense practical significance.  If your potential spouse has a huge judgment against him/her, and you've got assets, of course you're going to do a prenup.  Otherwise the creditor's just going to grab your assets after the marriage. But after today's opinion, the creditor might still be able to take your stuff, on the theory that the prenup was a transaction that defrauded creditors.  That's a pretty darn huge deal.  And one that may well deter people from getting married to their suitor of choice.

Now, there's a reason, I think, the Court of Appeal came out the way it did here.  Because the prenup here was a particularly abusive one.  It said that the spousal assets would remain separate until the underlying judgment against the husband was no longer valid.  Then everything would be community property.  You can see why that sort of arrangement might lead the Court of Appeal to decide that some prenups might be voidable since they defraud creditors.

Still.  Bad cases make bad law.  I wonder if it wouldn't make more sense to just say, as a categorical matter, that prenups aren't subject to the statute.  If only because they made the creditor no worse off than it was before the marriage.  Before, it could only go after the husband.  Ditto for after.  No blood no foul.

But, now, that's no longer the law.  At least in California.  And at least as long as this opinion lasts.

Thursday, February 14, 2019

Perez v. County of Monterey (Cal. Ct. App. - Feb. 14, 2019)

Happy Valentine's Day! The Court of Appeal decides to give us some presents on this most solemn of days, with no less than four published opinions for us to peruse. Yay!

So I decided I'd talk about the one that is perhaps most likely to be viewed as a joke. One perhaps more appropriate for April Fool's Day than today, yet, here it is.

(1) The County of Monterey says that you can't keep more than 4 roosters on your property, unless you have more than 200 roosters. No joke. There are other exceptions too; little kids can keep more than four roosters, you can't keep more than four roosters if you've been convicted of cockfighting (but you can, apparently, keep fewer than 4 -- or more than 200), etc. In short, there's a sophisticated rooster-keeping set of regulations for residential property in Monterey. If you want to have between 4 and 200 roosters on your property, you've got to get a permit.

Who knew?!

(2) Plaintiff filed a lawsuit that claimed that these rooster-keeping regulations were unconstitutional, and deprived him of his property right to keep more than 4 roosters on his property, was a taking, violated the Interstate Commerce Clause, etc. etc. etc.

No joke either.

Look, the law here may well be mostly silly.  A lot of the exceptions are somewhat difficult to justify on a categorical legal basis.

But it's rational basis review. There's a reason why we might want to let little kids in 4-H programs, for example, have half a dozen roosters. Maybe it's not a particularly GOOD reason, but it's a reason.

Which is why plaintiff's challenge was doomed from the outset. As any good student of constitutional law would have been able to tell you. And as the Court of Appeal explains.

Just go ahead and get the permit, Mr. Perez. I hope and expect that if there's a good reason why you want or need, say, 20 roosters on your property, the County of Monterey will give it to you.

And why, hopefully, your neighbors won't subsequently hate you every single morning at dawn.

Wednesday, February 13, 2019

Szonyi v. Whitaker (9th Cir. - Feb. 13, 2019)

I'm going to blame the rainy (and cold) week for putting a damper on the publication of opinions by the California judiciary thus far.  Only one Ninth Circuit opinion, and only two California Court of Appeal opinions, all week.  Them's slim pickins.

But today's Ninth Circuit opinion nonetheless reveals a nice little dispute.  The question is what it means for two crimes to arise "out of a single scheme of criminal misconduct" sufficient to get you deported from the country.  Mr. Szonyi got extremely drunk one day and, over a five- to six-hour period, forced three women to commit various sexual acts.  Since Mr. Szonyi is formally a citizen of Hungary (who came to the United States in 1957, when he was four years old), even though he's been in the United States for over 60 years, that means he's subject to deportation.  Unless the crimes for which he was convicted arise (under the statute) out of a single scheme of criminal misconduct.

Judge Clifton writes the majority opinion, holding that Mr. Szonyi is out of luck.  He thinks these are discrete crimes against different women.  Judge Fisher dissents, and thinks that these might perhaps be a single scheme of criminal conduct, with no real "pause" in the offenses sufficient to allow Mr. Szonyi to reflect.  (As Judge Fisher puts it, "On this record, I would grant the petition for review and remand for the BIA to adequately explain its decision. BIA precedent clearly requires a “substantial interruption” between offenses, and Szonyi squarely placed this issue before the BIA. The BIA, however, did not address it, leaving us to speculate whether the BIA disregarded the “substantial interruption” requirement, in contravention ofits own precedent, or concluded that there was a “substantial interruption” between offenses in this case, but without saying so and without pointing to anything in the record to support that conclusion.")

See which opinion most closely fits your own views.  But, at least at this point, Mr. Szonyi is going to be deported from the country in which he's lived the past 60 years.

Tuesday, February 12, 2019

In Re Marriage of Yeager (Cal. Ct. App. - Feb. 4, 2019)

Justice Gilbert says in the second paragraph of this opinion that "California Rules of Court, rule 9.7, pertaining to the oath required when an attorney is admitted to practice law, concludes with, “ ‘As an officer of the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.’" He then drops a footnote that says "Deletion of the words 'strive to' from the oath gives it the potency it deserves."

Which is a pretty big hint that some attorney is going to be in trouble here.

And trouble she is indeed in.

The Court of Appeal affirms a $50,000 (!) sanction award against an attorney, Lisa Helfend Meyer, who disclosed information contained in a confidential child custody evaluation report.  She didn't do it in open court, or in a filing, but nonetheless asked questions about that report in a deposition.  That, the Court of Appeal holds, is an unambiguous no-no.  Fully justifying the sanctions imposed by the trial court.

Plus the respondent gets awarded his costs on appeal.

There rules out there.  Pretty important ones.

Fail to follow them at your peril.

Monday, February 11, 2019

Jackson v. Kaiser Foundation (Cal. Ct. App. - Feb. 8, 2019)

The Court of Appeal holds that you can't get mandatory relief from an erroneous dismissal (i.e., employ CCP 473(b)) when the dismissal that you're challenging is your own request for dismissal without prejudice.  Even if you made a mistake based on erroneous legal advice, that's your bad. Had the case been dismissed by the court or on a motion, sure, you'd get relief. But since this was your call, not the action of someone else, CCP 473(b) doesn't apply.

Okay. Good to know, at least.

The holding is in a context that's somewhat interesting, however. The plaintiff here filed her lawsuit (for discrimination) pro per, and then sought to get an attorney to represent her. The attorney said "Sure, I'll take your case, but let's get rid of this pro per thing first -- dismiss it without prejudice, and then I'll file a new one for you that looks better." Which she did.

But after the first lawsuit was dismissed, the lawyer said: "Oops. I didn't know how FEHA suits worked. Seems like now, after the dismissal, your lawsuit is procedurally barred."

Which probably also made the attorney go back and check his malpractice coverage.

Seeking a way out, the attorney then said he'd represent the plaintiff on a limited basis to get the first lawsuit reinstated. That way, presumably, no malpractice claim for the bad advice. (To be clear: the word 'malpractice' doesn't exist anywhere in the opinion, but I'm just reading between the lines for a possible explanation for how this case came to be; pure speculation and opinion, obviously.)

So the attorney files an ex parte request, which the trial court denies, without prejudice to a noticed motion. So the attorney agrees to another limited representation agreement where he'll file a noticed motion, which he does, but the trial court again denies it. Hence the subsequent appeal.

So a nice attempt to get out of the malpractice claim by using CCP 473(b). Albeit one that fails.

On the other side, though, I thought it somewhat interesting that Kaiser -- the defendant -- thought it tactically advantageous to oppose the motion for relief from default, as well as the resulting appeal. On the one hand, that's the obvious move. It gets them out of the lawsuit without having to defend the merits. Typically, the right call. If only because it avoids the transaction costs of defending the thing.

But, on the other hand, they get out of that suit, but, presumably, into another. Now the plaintiff may file a malpractice claim against her would-be lawyer based on the bad advice. In which she'll have to prove her case-within-a-case against Kaiser. So now it'll have to defend all those depositions etc. in the malpractice suit. Plus it had to file all those briefs in the trial court and on appeal defending the refusal to reinstate the underlying action.

So some contrary transaction costs there as well.

All that, plus the risk -- which is at least nonzero -- that all this would be for naught if the Court of Appeal held that CCP 473(b) applied.

In the end, I suspect that Kaiser would make the same call again. But it's not an easy one. Sometimes, choosing a battle may not be the wisest call. Even when it's typically the most straightforward one -- and one that you might well win.

Wednesday, February 06, 2019

People v. Johnson (Cal. Ct. App. - Feb. 5, 2019)

This is pretty good police work.  Solved a murder down here in San Diego.  Mind you, there were TONS of video tapes available from the surrounding businesses.  Still.  Lots of effort clearly went into this one.

There's another lesson that one might learn from this opinion.  Don't steal drugs from someone who's running a large drug trafficking organization. And then sleep with his girlfriend.

Otherwise you might be shot in your barbershop, Sopranos-style, by a hit man in broad daylight. Ten of the fourteen shots hitting you.

Not an awesome way to go.

Tuesday, February 05, 2019

People v. Westerfield (Cal. Supreme Ct. - Feb. 4, 2019)

It was a long time ago.  But I remember it extraordinarily well.  As well am reminded of it every time I go over the Danielle Van Dam memorial overpass here in San Diego.

David Westerfield was convicted and sentenced to death for the high-profile kidnapping and killing of this seven-year old girl.

The murder was in 2002, and it has taken 17 years for the conviction just for the thing to get to the California Supreme Court for the first time.

To the surprise of no one, Mr. Westerfield's conviction and death sentence were unanimously affirmed.

Monday, February 04, 2019

Ward v. Tilly's (Cal. Ct. App. - Feb. 4, 2019)

Today's opinion matters a lot.  At least for a variety of low-paid workers, and perhaps for others as well.

The Court of Appeal reverses the trial court and revives a putative class action alleging that an employer (here, Tilly's) has to pay its employees wages when it tells them that they have to call in two hours before work starts to see if they're working that day.  Calling in counts as "reporting" for work.  At least according to the majority.  (The dissent, and at least one federal district court, says that the employee is not entitled to be paid unless she personally shows up for work during that two hour "call in" period.)

I must say that the majority opinion is at least persuasive on one point:  It's a total crock that the employer pays you nothing if you call in and they tell you you're not working that day.  The employer disrupted your life.  You couldn't make alternative plans that day since you potentially had to work (under penalty of being fired if you didn't show up).  You might have had to pay for child care or the like.  There's a reason for a minimum wage etc.  You shouldn't be paid nothing for the fact that your employer obligates you to arrange your schedule and potentially work on a given day, with only two hour's notice.

On the other hand, there's a line-drawing problem.  Do you really deserve to be paid for a whole day (or half day, or whatever) for a day you had to call in but didn't actually have to work?  What's the appropriate amount?  An hour?  Tough call.  Plus, there's no law that tells your employer how much in advance they have to tell you you've got a shift.  At least of which I'm aware.  Say your employer tells you a week in advance that you've got to work Thursday and Friday of next week.  I would think that's enough notice to not get you paid for, say, not working on Wednesday.

But what if they tell you your shift on Friday's; say, you often work Mondays, but on the Friday before, they say, nope, it's Tuesday next week?  Enough notice?  What if they tell you Friday that even though you normally work Saturdays, you're off this Saturday?  Is that enough?

Seems to me there should be a rule here.  And rules are generally made by the Legislature; courts have a tough time creating them.  (There's a proposed bill in the Legislature to accomplish something along these lines, but it's unclear whether it'll pass, and it probably would not resolve the exact issue raised by the present case anyway.)

Still, I'm not happy with a rule that says employers can make you arrange your schedule so you're available for nothing but work all day and then pay you nothing if it turns out two hours earlier they don't need you. Seems like that in fact might/should violate the relevant rules (e.g., Wage Orders).

So this putative class action survives for now.