Friday, March 29, 2019

Molinaro v. Molinaro (Cal. Ct. App. - March 29, 2019)

Sometimes all you're doing in a lawsuit is making things worse.  Particularly in family law court.  Especially when you're representing yourself.

Michael Molinaro is married to his spouse for nearly 20 years, but she decides to leave, and files for divorce.  As she's getting some of her stuff out of the former marital residence, she alleges that "after a verbal altercation with Bertha and some of the family members, Michael moved his car to block the moving truck from exiting the home’s driveway. Bertha called the police, who eventually detained Michael."  She also says that "Michael had physically restricted Bertha from leaving the home on two other occasions -- once by blocking the front door and another time by blocking her car in the home’s carport. Before filing for divorce, Bertha had installed locks on her bedroom door “because [Michael] was acting erratic and [she] was afraid of him.” Michael threatened to “throw a chair though the bedroom window” if she did not remove the locks."

Not good stuff.  So she moves for a restraining order.  For that and some other conduct.

At the hearing, the wife "asked that Michael “please stop posting everything about the case on Facebook,” and “stop giving the children all of my pleadings.” Michael responded that he had only given the children copies of “the domestic violence restraining order, not of the divorce petition.” When the court asked, “what makes it okay to give the 13-year-old and the 17-year-old copies of the court papers,” Michael answered, “My best judgment, Your Honor.”"

Mr. Molinaro might not be reading the judge extraordinarily well at this point.  But okay.

Then things start to go downhill.

"The court explained to Michael that it intended to “issue an order against you today that precludes you from discussing the matter with the 13-year-old and the 17-year-old,” warning him that courts may “consider parents insinuating children into the court process” in making custody determinations. Michael objected to the order, arguing Bertha had “emptied [their] home equity of $250,000 [sic]” and “relocated [his] children to a mystery house without informing [him].” The court acknowledged the objection, but asked Michael to confirm he understood the terms of the order. Michael responded, “Okay. I understand the what. I question the sanity.”"

Let me interject with a tip.  It's generally not a great idea to openly "question the sanity" of a judge or one of his rulings.  You can think it.  You can ponder it.  But probably best not to express it.

The parties subsequently appear at a different hearing in front of a different judge.  So everyone's had an opportunity to cool down.

Or, apparently, an opportunity to heat up even further.

Mr. Molinario doesn't prevail at this hearing either, and the new judge enters various orders.  At which point the new judge "asked Michael if he understood the order. Michael responded, “No, I don’t. I think you’re insane. I don’t understand a word you are saying. It lacks reason, Your Honor. There was no evidentiary foundation for your order.""

Okay.  Another tip.  When multiple judges appear to you to be "insane," I redouble my counsel to keep your thoughts to yourself.  And maybe -- just maybe -- to reflect on whether your judgment in this matter may be the problem, rather than the sanity of the underlying judicial officers.

But Mr. Molinaro's not finished.  Not by a long shot.

"Bertha’s counsel asked to arrange “reasonable visitation with the kids.” She suggested the parties go down to the mediation office to “work out the parenting plan for the kids.” The court suggested mediation might not be productive at the moment, in view of Michael’s “behavior.” Michael interrupted the court, demanding to know “[w]hat behavior.” The bailiff asked Michael not to “scream,” and the court noted Michael had been “[y]elling in court.”

The court ordered Michael would have monitored visits with the children in “a neutral setting.” Michael asked that the visits take place at the children’s residence. The court denied the request, admonishing Michael that he was to stay 100 yards away from the residence. The court also ordered that he was to work with Bertha’s counsel to find a professional monitor. Michael responded, “No, I’m not.”"

Telling a judge that you're not going to follow her express order is rarely a good idea.  It does not generally incline that judicial officer to rule your way.  Particularly in a family law dispute.  The next line of the opinion reads:

"The court granted legal and physical custody to Bertha."

Lest this be it, the proceedings continue.  With this:

"At Bertha’s request, the court also ordered Michael to attend anger management classes. Michael responded, “On what basis? There’s been no abuse, Your Honor.”"

Let's stipulate for a moment that there's been no abuse.  And, yes, I'm looking at a cold appellate record, and wasn't there.  But even with those caveats, even I can see why maybe a court might have a reason to order anger management classes.  Because the guy's having a problem even keeping it together in court.  If you can't be calm and collected even in that setting, I can see why there might potentially be a problem with anger management in other settings as well.

And I come to that conclusion even before reading the footnote immediately after that last sentence, which reads:

"The objection prompted another exchange in which the court and bailiff cautioned Michael against screaming or “raising [his] voice and yelling.” When the bailiff, for a third time, admonished Michael not to scream, Michael responded by disparaging the “family law bar.”"

Which reminds me that there's another job that I personally do not wish to have:  being a bailiff in a family law courtroom.  Rough.

So, fortunately, the hearing is nearly at an end.  Or at least the part reported in today's opinion.  But not before this:

"The court explained it was ordering anger management, not a 52-week batterer’s intervention program. Michael continued to respond indignantly: He told the judge, “Why don’t you put me behind bars[?]”; asked, “How fast can I commit contempt of court by going to none of them, Your Honor?”; and told the court, “I have no respect for the court, Your Honor.”"

Again, I'm not sure that stuff like this really advances the ball.  Indeed, when you say stuff like that, I'm pretty sure that your opposing counsel is just sitting there smiling (at least inwardly) as you dig your own grave.

I know it's hard.  Extraordinarily hard.  But try to remain calm.  Even as things are very much not going your way.

Mr. Molinaro represented himself in this proceeding, as well as on appeal, and he used a lot of fancy legal language in places.  (At least when he wasn't calling the judge insane.)  So I wondered if he was perhaps an attorney.  Which would make his outbursts even worse, or at least even more inexplicable, IMHO.

The litigant's name is Michael M. Molinaro, and the case is out of Los Angeles.  There's an attorney named Michael Martin Molinaro in Los Angeles.  I'm not saying they're necessarily the same person, since I don't know.

But it'd surely be unfortunate if they were.

One final mention.  Sometimes the Court of Appeal thanks amici for participating in a case and submitting a helpful brief that articulates various issues.  Justice Egerton's opinion does indeed mention the one amicus brief submitted in this case.  But isn't exactly overly congratulatory.  One might even say that Justice Egerton throws some implicit shade, saying in the final footnote:

"We also have reviewed the National Coalition for Men’s amicus brief and find nothing in it warranting discussion."


Thursday, March 28, 2019

Zakaryan v. Men's Wearhouse (Cal. Ct. App. - March 28, 2019)

I've seen their commercials for years.  "You're going to like the way you look.  I guarantee it."

I've always known the store as the Men's Warehouse.  Clothing for men.  Suits, mostly.  Hence the Men's, and in (ostensibly) a "Warehouse" setting (implying, as some of its ads do, that the stores sell suits at a discount).

But Justice Hoffstadt's opinion earlier today briefly refers to the store as having a "homophonic name."  Really?!  How's it homophonic?  (Which means it sounds the same as a different word.)

Only then did I realize that, all these years, I've never recognized the actual name of the place.  It's actually called the Men's Wearhouse.  For stuff you wear.

Oh, I get it now.

Wednesday, March 27, 2019

Long v. Forty Niners Football Co. (Cal. Ct. App. - March 26, 2019)

Minor point first.

The opening paragraph of this opinion reads:  "Defendant Forty Niners Football Company, LLC demurred on statute of limitations grounds, and the trial court sustained Long’s demurrer without leave to amend."

I think that Justice Brown means that the trial court sustained the Forty Niners' demurrer, not Long's.

Substantive point next.

The final couple of paragraphs holds that the statute of limitations isn't tolled during the period a plaintiff files a diversity case in federal court, even though there's a federal statute that expressly tolls the limitations period for supplemental claims brought in federal court.  The Court of Appeal does not cite any cases for that proposition, and thinks that the express language of the statute (28 U.S.C. sect. 1367(d)) makes the point clearly enough.

Perhaps.  And I know that there are, in fact, some other courts that appear to have held the same way, albeit in dicta and without much analysis.

But it's a funny rule (if it indeed exists).  Imagine a case where a plaintiff brings both federal and state claims and thinks that both federal question and diversity jurisdiction exists.  If he's right, then (under the Court of Appeal's holding) there's no tolling, since original diversity jurisdiction stops the tolling.  Yet if he's wrong -- if, for example, he was mistaken, or even brazenly lying about the residence of the parties -- then all of the sudden he gets the benefit of tolling, since the state claims are now based on supplemental jurisdiction.

Seems irrational  Why have a longer tolling period for the wrongdoer, while potentially barring the honest guy on limitations grounds?

I'd think that even if the statute itself didn't apply, you might have some common law principle like equitable tolling to fill in the gaps.  'Cause it doesn't make much sense to me to grant a tolling period only for supplemental claims.

So I wonder if those final two paragraphs might benefit from a bit more analysis.

And maybe someone might want to eventually write a law review article about the thing.

(Not me, though.)

Tuesday, March 26, 2019

People v. Eddy (Cal. Ct. App. - March 26, 2019)

I agree that the defendant in a criminal case is entitled to have his lawyer argue that he's innocent if that's what the defendant wants.  Even if that's perhaps not the "best" strategy at trial.  It's the life and liberty of the defendant that's at stake.  (Particularly, as here, in a prosecution for murder.)  If the defendant wants to argue he's not guilty, he's got that right.  Even if the defense counsel thinks -- perhaps correctly -- that the most effective way to present a defense would be to concede the events at issue and argue for voluntary manslaughter.

Now, here, the defendant was waffling a bit.  This is not your prototypical case where the defendant consistently insists on X but the attorney goes and does Y.  Still, the Court of Appeal is correct that the defendant had a desire and his counsel didn't follow it.  That's generally sufficient -- on a critical issue like factual innocence, anyway -- to warrant a reversal.

Mind you, given the evidence, I'm fairly certain that the defendant will again be convicted at the retrial.  The evidence against him was somewhat overwhelming.

But at least he'll get the joy of losing with his own strategy, as opposed to a strategy with which he disagreed.

Small solace, I know.  But important.

(Parenthetically, the investigation of the crime here was far from perfect.  After the stabbing, the police looked for the murder weapon in the apartment, but couldn't find it.  Even though it was just sitting under the kitchen table.  And they found fingerprints on the knife, but apparently didn't even bother to test them to see if they matched the defendant.  Not the kind of police work you typically see in a murder case.)

Monday, March 25, 2019

Steinle v. City and County of San Francisco (9th Cir. - March 25, 2019)

Today's Ninth Circuit opinion got me thinking a little bit about when appellate courts elect to call events "tragic" (or not).

This is surely a tragic case.  A high profile one, as well.  Kathryn Steinle gets randomly shot and killed on a San Francisco pier when a gun held by an unauthorized immigrant discharges.  (Whether or not he deliberately killed her is unclear.)  Random deaths like that certainly qualify as tragic.  As do many deaths.  Rarely is the cessation of life of an innocent person cause for celebration.

So it's perhaps no surprise that the first sentence of Judge Bennett's opinion labels the events as "undeniably tragic."

But I started to wonder what sort of opinions decide to label the events as "tragic" as opposed to simply setting forth the facts?

Does the fact that it's a high-profile case matter?  This one definitely got a lot of press, and became a large part of an ongoing debate about the benefits and liabilities of unauthorized immigration.  Is that why this particular case gets labelled "tragic" -- because it particularly touched the heart of those on one side of the debate or another?  Or do we disproportionately label events "tragic" when we think a large number of people (e.g., nonlawyers) might be reading the opinion?

There are, after all, a ton of deaths recounted in Ninth Circuit (and other appellate) opinions.  Most of which could probably be quite accurately described as tragic.  Why do some get the appellation and others do not?

Does the result matter as well?  Here, the Ninth Circuit decides that San Francisco isn't liable for the death (which seems to me exactly right), and hence affirms the district court's dismissal of the plaintiff's lawsuit.  Are judges more likely to describe an event as "tragic" if they then go on to deny relief to the party with whom they expressly proclaim sympathy?

Those are hypotheses, anyway.  I'm not sure how I'd definitively verify or disprove them.  I did check to see how often the Ninth Circuit, in particular, describes events as "tragic."  Not surprisingly (to me, anyway), it happens much more in published opinions than in unpublished opinions.  Since January 1, 2000, that word is in 167 published opinions, as opposed to only 64 unreported ones.  That also means that we're using that term around once a month.  In 2019, the Ninth Circuit has used that word to describe school shootings, a car accident, a prison suicide, a landslide, and a wrongful conviction and imprisonment.  I'd have thought the label was most likely to be applied to random murders.  But it seems the term is used much more broadly.  (Accurately so.)

I'm sure there are other terms that are similarly employed.  Dreadful, appalling, awful, etc.  But my money's on "tragic" being the most common.

Because lots of cases on appeal do indeed involve tragic events.

And a fraction of them are expressly described as such.

Wednesday, March 20, 2019

In Re Marriage of C.T. and R.B. (Cal. Ct. App. - March 19, 2019)

Speaking of nightmares . . . .

I'm confident the Court of Appeal sets forth the facts that most strongly support its decision to reverse the judgment below, which awarded primary physical custody to Father.  But based solely on what I read in the opinion, I totally get why the Court of Appeal is concerned about that.  I too am worried that it makes no sense at all to send the kid to Arkansas with Father.

Admittedly, Mother's extraordinary reluctance to do what the court ordered her to do complicated the situation, and almost certainly upset the trial court.  But you can understand her emotional reaction to the situation (at least in part).  She just can't fathom why her son would be sent to Father under these circumstances.  So she reacts as she did.

Even though it just makes things worse.

Herriott v. Herriott (Cal. Ct. App. - March 20, 2019)

Think it'd be fun to be a justice on the Court of Appeal?  Perhaps.  Though you also have to deal with cases like these.

It's an elderly couple who's divorced.  Who nonetheless live in the same building -- 123 24th Street in Hermosa Beach -- with Wife living on the second floor and Husband living on the third floor.  Which, obviously, is a recipe for disaster.

They get into nightmares of fights.  They have mutual restraining orders against each other.  Their own daughter testifies that her parents have an extremely “volatile” relationship, and that “[i]t’s been hell being a child for them.”  Today's opinion is replete with lots of excruciating -- and depressing -- details.

Oh, and they both represent themselves on appeal.  So no lawyers to help sort things out.  Leading, among other things, to this footnote:

"As an initial matter, we note that the appellate briefs filed by both parties were deficient and failed to reasonably assist this court in our understanding of the facts or analysis of the legal issues in this case. Alicja’s brief makes repeated references to evidence without any citation to the record as required by California Rules of Court, rule 8.204(a)(1). Indeed, in many instances, our review of the record confirms no evidence supporting these statements. . . . Both parties also misrepresent the record in several places. Further, we observe that Respondent has attached documents to her brief that are not included in the record. . . . [O]ne of the documents Respondent attached to her brief is a confidential child custody evaluation report, [so] we have considered sanctioning Respondent. (See subsection D of Discussion herein, post.)"

So, yeah.  That's some of the work with which the Court of Appeal is required to deal.

I suspect that being a justice is a great job.  Most of the time.

Monday, March 18, 2019

Boyer v. Ventura County (Cal. Ct. App. - March 18, 2019)

The result of today's opinion by Justice Yegan seems right to me.  Though, respectfully, I think he dramatically overstates the case.

For over a century, the rule was that you could run to be a County Sheriff with the same qualifications you needed to run for virtually any other political office.  Which is to say:  None.  You don't have to be smart to be, say, the Mayor.  So you also didn't have to be smart -- or qualified, or competent, or potty trained -- to be the Sheriff.  The voters got to decide.

But in 1988, after 150 years of things working out just fine relying on the voters, the Legislature decided to limit who could become a County Sheriff, and imposed some minimal qualifications for the office.

The Court of Appeal upholds those limitations.  And Justice Yegan waxes poetic about their utility, saying (among other things):

"We are quick to observe a common sense reason why appellant cannot prevail. Experience is the best teacher. This is true whether you are a plumber, a teacher, a doctor, or a lawyer. It also applies to being the elected sheriff of a county where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise. It does not matter how intelligent you are or if you are acting in good faith. There is a good reason why the Legislature has imposed an experience requirement. To get a “feel” for law enforcement, i.e., coming to a true understanding of it, you must learn about it in the field by doing it. The people of California have been well served by personnel who have worked their way up the chain of command to leadership."

I'm not going to quibble with the underlying concept.  Experience is often indeed helpful.  At least all other things being equal.  Mind you, if the voters feel like electing someone with less experience -- an "outsider," perhaps -- I'm fine with that too.  Sometimes experience is good, and sometimes it's good to instead get someone who perhaps brings a fresh perspective that's not been formed (and/or jaded) by prior work in the area.

Which is why, for example, we don't have any service qualifications to become, say, President of the United States.  If you've got a pulse, are 35 years old (14 of which were spent here) , and are a natural born citizen, you can control the world.  If you can convince the voters that you should.

So, to me, I'm not a thousand percent positive that there are "good reasons" by the Legislature has imposed an experience requirement.  The world might (or might not) be a better place without them, relying instead (as we did for 150 years) on the intelligence of the voters to decide what role, if any, any particular degree of experience should be required.

That said, I am also fairly confident that it was rational for the Legislature to impose the experiential requirements it imposed.  Since that's all that seems to be required under the California Constitution, the result of today's opinion -- that the statute is constitutional -- works for me.  Even though I'm not entirely simpatico with Justice Yegan's certainty that experience is necessarily essential.

At the same time, I'm also confident that I affirmatively disagree with the Court of Appeal's apparent belief that the particular requirements here manifestly make sense.  Or, to put it differently, that there is no way to get a "true understanding" of the role of a county sheriff any way other than by "doing it," or that the particular experiential requirements imposed by the Legislature ensure that candidates have "worked their way up the chain of command to leadership."

Because, in truth, the Legislature's experiential requirements are incredibly minimal.  Spend a year as a marshal for a magistrate in a federal civil courtroom, having never pulled your gun or gotten out of your chair? You're qualified.  Spend 12 months as an investigator for a district attorney?  Good to go. Work a year with Fish & Game making sure people bought their fishing licenses?  Welcome to being County Sheriff.  All of these people are qualified.  Seems to me to overstate the case by saying that all of these people necessarily "know the field" than, say, a professor of criminal justice who's worked in the area for 30 years, or a civilian member of the Police Review Board (or maybe even a criminal defense attorney) who's had a quarter century of exposure to a wide variety of police practice.

And that's probably even true for candidates with actual police experience.  For example, under the statute, if you spend 12 months as the sole police officer in, say, Amador City (population: 125), you can be County Sheriff.  Maybe County Sheriff of, say, Alpine County (population: 1057).  Your year of work as the sole officer in a sleepy town of 125 hardly constitutes "work[ing] [your] way up the chain of command to leadership."  Nor does a candidate for the Alpine County Sheriff position, I imagine, constitute an office "where there are several hundred deputy sheriffs and several hundred non-sworn personnel to supervise."

Seems to me that a voter might well reasonably say, "Yeah, I'm not so sure that Ice-T has much experience in the area, but, hey, he plays a cop on television, and I don't think that Barney Fife guy who's running against him is all that hot, so I'm going with the big guy."  In short; experience can be way, way overrated.

Including by the Court of Appeal.

But, to reiterate, it's rational to require some degree of experience.  Could reasonable minds differ?  Sure.  And undeniably do.  But since the statute has a rational basis, and the Constitution doesn't seem to affirmatively exclude Legislative requirements for the position (e.g., by imposing its own), that's dispositive.

No need to wax poetic about the manifest wisdom of the underlying rule.  Since, at least to me, the merits of such a requirement seem a much closer call.

Wednesday, March 13, 2019

Fowler v. Guerin (9th Cir. - March 13, 2019)

Judge Bennett makes his presence on the Ninth Circuit felt in today's dissent from denial of rehearing en banc.

You'd think that the underlying opinion was hardly something that would garner much controversy.  It's an opinion authored by Judge Gould that's joined by Judge Ikuta.  Two individuals who are far from radical left-wingers.  It concerns, according to Judge Gould, a class action brought by a couple of teachers who ask for a "return [of] interest that was allegedly skimmed from their state-managed retirement accounts."  Hardly the most unsympathetic of claims.  And the panel opinion is without dissent or -- at least when you read the opinion -- much controversy.

Yet Judge Bennett, who joined the Ninth Circuit in July, pens a 17-page, single-spaced dissent that argues that the panel's opinion radically conflicts with the Eleventh Amendment.  So thinks that the opinion should be taken en banc.

The only other judge who joins Judge Bennett's dissent is Judge Ryan Nelson.  Who's another Trump appointee also new to the Ninth Circuit, having joined the court even later than Judge Bennett (Judge Nelson took his seat in October).

It's still early.  It's only one opinion.  But the early returns nonetheless suggest that we may hear a lot from the first two Trump appointees on the Ninth Circuit for some time.

Monday, March 11, 2019

In Re M.S. (Cal. Ct. App. - March 11, 2019)

The quotes are from today's opinion by Justice Gilbert.  The text not in quotes is mine:

"Is M.S. eligible to be considered for referral to a mental health diversion program pursuant to the newly enacted sections 1001.35 and 1001.36?"

Well, I honestly don't know what those statutes say.  But just to get things started, I'd want to know how serious the crime was.  More serious crimes probably aren't likely to get diversion.

"This appeal concerns the tragic death of Baby Boy A. . . ."

Oh no.  Not one of these.  So depressing.

". . . . following his home birth to then 15-year-old M.S."

Oh my goodness.  Gave birth at home and then neglected the child, resulting in its death?!  That's so incredibly sad.

"Frightened that her parents would learn that she had been pregnant and given birth, M.S. inflicted fatal cuts on A.’s throat, severing his carotid artery and trachea. M.S. thereafter placed his body in a plastic bag and concealed the bag in the bathroom vanity."

OMG.  That's horrible.  Simply horrible.

On so many different levels.

"During police questionings, M.S. initially asserted that the infant was born stillborn but then stated that she accidentally wounded him when she cut the umbilical cord. When confronted with the medical examiner’s findings, however, M.S. finally admitted that she used a kitchen knife to cut the infant’s throat."

At least she comes clean at the end.

But still.  What an incredibly depressing way to begin our week.

Or to learn about a 15-year old girl and her infant son.

Friday, March 08, 2019

Anderson v. State Farm (9th Cir. - March 8, 2019)

Here's a totally straightforward opinion by Judge McKeown.  Short -- relatively, at least -- to the point, and completely coherent.

And yet I think she's wrong.

The question is a simple one:  When you serve a corporation, when does the 30-day removal clock start ticking?

The issue arises because corporations are fictions.  You serve a corporation by serving one of its agents.  So does the 30-day clock start ticking when the agent gets notice, or only when the entity "itself" receives notice?  With the caveat that the entity "itself" is a piece of paper, and can't read.

Judge McKeown decides that it makes sense to have a bright-line rule that says that it's only when the corporation "itself" actually receives the complaint that the clock starts ticking.  And she so holds in a factual context that perhaps lends itself to such a conclusion.  The Washington statute here says that in order to serve a foreign (i.e., out-of-state) insurance company, you're required to serve not the insurer directly, but rather, you've got to serve Washington's Insurance Commissioner.  Who in turn forwards the complaint to the insurer.

Judge McKeown says that in such circumstances, it makes sense to say that the clock starts only when the company itself receives the papers.  Otherwise the 30 days might potentially run out even before the company knew about the complaint (if, say, the Commissioner didn't properly forward it).  And, in any event -- and this is her central point -- we don't want the federal 30-day rule to vary in application depending on the vagaries of particular state rules about service of process; e.g., who "counts" as the agent for the company.

So we're going to have a simple rule.  It starts when the company gets the papers.  Not a designated agent.

Makes sense, right?

Yeah.  That's what I sort of thought at first too.  A nice, simple, bright-line rule.  One that also has the advantage of following the only other circuit (the Fourth) that's decided the issue.

But then I thought about it more.

And decided that I came out the other way.

'Cause the truth is, all the problems that Judge McKeown talks about already exist with the removal statute anyway.  And her "solution" to the problem in the particular insurer context here will only create additional difficulties in deciding when today's "usual" Ninth Circuit rule applies and when it doesn't; e.g., which agents count for today's rule and which don't.

The thing that changed my mind was realizing just how many different forms "agents for service of process" take.  Judge McKeown focuses -- understandably -- on the one at issue here:  when a state forces a company to use a state officer as its agent.  In such settings, yeah, you have the problem of maybe the agent not being competent, or faithful, or timely, or whatever, and it makes facial sense to say that the clock starts ticking only when the "company itself" actually sees the papers.

But let's take a different agent.  For example, both the Fourth and the Ninth Circuits decided as they did with state-mandated agents that were state officers, but let's instead look at California's law.  That statute says that out-of-state insurers have to appoint an agent, but doesn't say who they have to appoint.  Maybe they decide to appoint their own Treasurer.  Maybe they decide to appoint the state Insurance Commissioner.  Maybe they decide to appoint Shaun Martin.

What rule applies then?  If they appoint the state Insurance Commissioner, does today's rule still apply, since the Insurance Commissioner might not forward the thing properly, we don't want state law to dictate the federal 30-day clock, etc. etc.?  Or does the fact the company "chose" that person mean that she's effectively the Company itself?  Ditto for if they choose Shaun Martin.  Does it start when I receive the summons and complaint, or only when the Company itself receives it (and what if I deliberately delay in order to give the Company more time to remove)?

And ditto for when the Company appoints its own Treasurer -- or a secretary to the CEO, or the company janitor, or the CEO himself, or whomever.  Are we supposed to similarly say that these are not the "Company itself" so the clock starts ticking only later?  Yet that sounds absurd, no?  In turn, what about someone who's full-time job is to receive service of process?  Does whether the 30-day clock starts depend on whether they're an employee vs. independent contractor?  On whether they only receive process for one Company, or more than one?  Where's the line here between what agents "really" stand in the shoes of the Company for purposes of the removal clock and which ones don't?!

Judge McKeown has a simple answer to that question at the very end of her opinion, in footnote 5.  She says:  "We're not deciding that.  That's a different case."

Well then it's not a very bright-line rule now, is it?  Sure, we know how this case gets resolved; one that involves out-of-state insurers who have state-designated officers as exclusive agents.  But there are a thousand cases that we now don't know the rules for, right?  Because we're not sure whether today's rule applies to them or whether a different rule -- the one posited in footnote 5 -- applies.

So far from being an easily applied principle, today's decision seems to create much more confusion than it settles.  As well as creates an artificial line the contours of which are unclear.

To be fair to Judge McKeown, she has an answer for that as well.  And essentially says, earlier in the opinion, that things seemed "just fine" under the Fourth Circuit's rule, and there didn't seem to be a ton of confusion in the lower courts after that particular result, so presumably there won't be any here as well.

Okay, sure, maybe.  But there wasn't much confusion before those decisions either.  Since apparently there are only two cases in history that ever presented this precise issue.  So maybe everyone before just made sure to remove cases within the 30 days from when ANY agent got served.  Which, to be honest, makes total sense.  Why not play it safe?

So, yeah, people may still be doing that, even after today's (and the Fourth Circuit's) decision.  But that doesn't justify a rule that's nonetheless seemingly arbitrary -- service on Treasurers (or janitors, or Shaun Martin -- or maybe not) counts, but not on an Insurance Commissioner -- and that necessarily requires us to create lines between certain agents that start the 30-day clock and other agents that do not.

And the more I thought about Rule 4, the more I became convinced that today's Ninth Circuit rule creates far more problems than it solves.

Because there are TONS of agent rules therein.

(1) We already rely on state law.  Way, way.  So I'm not sure that the "What a pain it would be to rely on state law to decide whether the 30-day clock is ticking" argument is all that great.  We rely on state law to decide whether to take someone's default (since Rule 4(e)(1) borrows state law).  We also rely on state law to decide what agents are appointed "by law" under Rule 4(e)(2)(C).  Other stuff too.  So while I thought today's opinion was persuasive on the whole "Congress wanted uniformity not state-law specific stuff re: removal," upon reflection, I've changed my mind.

(2) We're going to have a hell of a time figuring out how far today's opinion goes.  Indeed, the only thing that'll stop a ton of cases from coming up in the future is a lack of creativity on the part of those lawyers who wait until the last minute to remove.  For example, not only do we have the "which corporate agents count as 'real' agents" problem discussed above, but what about Rule 4(f)(2)?  Does service in a foreign country, pursuant to its rules, start the clock ticking?  What if that foreign agent doesn't promptly (or ever?) relay the notice?  Is it really the rule that you can validly take someone's default under Rule 4(f) and yet the removal clock never started ticking under analogous situations?

And today's opinion is even a problem for individuals.  Normally, you'd think:  well, obviously, the removal clock starts ticking when they get handed a copy of the complaint.  But remember:  that's not the only way to serve 'em.  What about Rule 4(e)(2)(B)?  Say I leave a copy of the summons and complaint with the guy's wife, or roommate, or 21-year old child living in the home, and state law says that's valid.  Does the 30-day clock start ticking?!  After all, he never chose them -- just like the company in today's opinion didn't choose the Insurance Commissioner.  They were chosen by law.  And maybe the roommate delays in giving the complaint to the guy.  (Or maybe the defendant lies and says the roommate didn't hand it over until 20 days later.)  Until today's opinion, I'd have thought it obvious that the 30-day clock started when you handed it to the roommate or wife.  But under the Ninth Circuit's reasoning, the same "don't mess with state law, bright line rule, gotta be given to the defendant itself" arguments apply there as well.  Or, alternatively, yet another line we have to draw.

In the end, I'm persuaded of a different bright line rule.  One that's actually a bright line, and easy to apply -- or at least no harder than the one we apply already.  It's this:  If service on your agent is enough to allow your default to be taken, then it's enough to start the 30 day clock.  If serving your agent is "good enough" to count as service on "you" sufficient to take all your worldly possessions away from you, then it's good enough to count as service on "you" sufficient to start your 30-day clock to remove.

And if, as here, you wait until the last day, that's on you.  You've got 30 days to remove from the date of valid service on your agent.  Just like you've got 30 days (in many state courts) to avoid a default from the date of valid service on that same agent.

Same clock.

So did the Ninth Circuit write an understandable opinion?  Definitely.  And I totally get where it's coming from.

But I still think it's wrong.  Even more so than when I first started having my doubts.

Mairena v. Barr (9th Cir. - March 7, 2019)

The opinion itself is only ten pages.  The panel didn't even need oral argument.

Yet the "Summary" prepared by the Reporter spans four pages.

Tighten that thing up.

Tuesday, March 05, 2019

People v. Joseph (Cal. Ct. App. - March 5, 2019)

You don't see many felony convictions for perjury.  You do here.  But it gets reversed by the Court of Appeal.

There are a lot of practical lessons to be learned from the opinion.  One is to be suspicious when someone asks to use your cell phone to purportedly call his grandmother.  The other is not to go to Taco Bell shortly before committing a robbery (and during the time you told the police that your car was stolen).

They've got video.

Monday, March 04, 2019

U.S. v. Elmore (9th Cir. - March 4, 2019)

On first glance, this appears to be yet another case that involves careless or indifferent parenting.  One of many that you see daily when the appellate courts recite the facts.

Judge Bybee begins the tale by explaining that there was a minor girl -- L.G. (I'll call her "Laura" just to avoid initials) -- who moved from San Francisco to LA for a "fresh start" and lived with her cousin there.  While in LA, Laura started dating Calvin Sneed, a not-so-great character who was pimping young women there, and Laura eventually starts advertising herself on various prostitution websites.

Laura's family finds out about all this and tries to drag her away from Sneed.  Her mother travels from SF to LA one day to try to persuade Laura to return with her, but to no avail.  But three days later, Laura and Sneed drive up to SF, and Sneed drops Laura off at her parent's house at 4:00 p.m.  The parents again try to persuade Laura to leave Mr. (Alleged) Pimp and return to them.

All of that's great.  The mother is trying.  Hard.  There's perhaps only so much a parent can do, but she's making as much of an effort as humanly possible.  Good for her.

But it doesn't work.  Laura continues to argue with her mother about staying in SF and leaving Sneed, but at 12:15 a.m., Laura finally decides to return to Sneed and texts him to pick her up.  The effort to get her out of Mr. Pimp's clutches fails.

Then here comes the depressing part.  Your minor daughter has decided to go back to the pimp who's prostituting her.  Your wife is actively arguing with her, trying desperately to get her to reconsider.  All the while, Mr. Pimp is literally on the way to your home to pick up your daughter and take her away.  Yet, while Mother screams and pleads and begs, here's all that Father says to daughter:

"You grown. Before you leave, turn the lights off."

What?!  "You grown?!"  She's a minor.  Hardly in a position to intelligently decide to devote herself to sex work for Mr. Pimp.  And what the hell about the lights?!  Your daughter's leaving to return to prostitution, and all you care about is not having to get out of your chair and turn the lights off?!


It just sounds so incredibly, stunningly heartless.  How can a father demonstrate such a lack of compassion and caring for the events around him?

So as I leave that paragraph, I have a definite view of the father.  And it's not a good one.  At all.

Total lack of caring.  Total lack of parenting.

But I was wrong.

Because here's (allegedly) what actually went down.  Yes, Father was facially uninterested.  But when Laura went outside to wait for her boyfriend, there's an SUV waiting outside with its lights on.  And when Mr. Sneed shows up, the SUV pulls up beside him and promptly shoots him in the head, killing him.

All allegedly set up at the direction (at least in part) of Father.

So you can say a lot of things about Father.  But the lack of caring that I first imagined when I read about his reaction to Laura leaving isn't one of them.  Because, yes, he didn't feel like continuing to argue, but that's because he thought that further discussion was useless.

And he had a far more direct plan to resolve the matter.  Kill the guy.

Today's opinion is about the validity of the warrant to search some cell phone location data, and it's an interesting one, with a majority opinion by Judge Bybee and a dissent by Judge McKeown.  So on the legal issues, worth reading.

But even on the non-legal front, it's also one where I thought one thing at the outset, and a very different thing at the end.

Proof positive that, in legal opinions as well as elsewhere, things are not always as they may initially seem.