People v. Morrison (Cal. Ct. App. - April 30, 2019)

The question is whether Mr. Morrison stays in detention for additional periods.  But common sense dictates that it's not really a question:

"Morrison had been convicted of kidnapping and raping a fourteen-year-old girl, and forcing her to orally copulate him. While in prison for those crimes, Morrison repeatedly engaged in sexual misconduct and threatening sexualized behavior toward female prison medical professionals. He also admitted he had uncontrollable urges and was likely to rape again if released. . . . Morrison had repeatedly exposed himself to and masturbated in front of female medical professionals, and engaged in other threatening sexual behavior . . . . Morrison confided to a psychologist that, if released, he would rape again."

Yeah.  You're going to be continuously detained as an SVP given those facts.

The only surprising thing is that at least one expert came to the conclusion that Mr. Morrison was not an SVP.  But for the Court of Appeal, that doesn't matter.  It'd be "absurd" to let him out at this stage.

People v. Sanchez (Cal. Supreme Ct. - April 29, 2019)

Two juries are hopelessly deadlocked in deciding whether the defendant is in fact guilty of the crime.  A third jury convicts, and sentences the defendant to death.

The California Supreme Court unanimously affirms.

Tanimura & Antle Fresh Foods v. Salinas Union High School Dist. (Cal. Ct. App. - April 26, 2019)

I'm very sympathetic to the plaintiff in this case.  It's developing a 100-unit housing complex in the Salinas Valley that's designed to house seasonal agricultural workers during the seven-month growing season.  The thing's basically a dorm; two-bedroom units that house between two and four workers each.  Everyone agrees that the only people in the units are going to be the workers themselves; any kids of these workers basically get left at the worker's regular home with the other parent, or (if both parents work during the season) left with friends or relatives.  So basically:  No kids.  None.

But the Salinas Union High School District  nonetheless imposes a fee of $3 a square foot on new residential developments.  Of which this is definitely one.  The theory being -- and, in most cases, this makes total sense -- that new residential development brings new kids, and those kids gotta go to school, so there's "rough proportionality" between the fee and the development.  Which is what the Takings Clause (as well as California law) requires.

But the developer says:  "It's not right to make me pay that $294,000 fee, because my particular development won't have any kids."  So no impact on schools.  And there's legions of evidence that, with respect to this issue, the developer's totally right.  So you're basically making it pay a fee for reasons that fairly clearly don't apply.

And that seems unfair.

The Court of Appeal nonetheless ultimately upholds the fee.  Holding that, basically, there's still  rough proportionality because it's indisputably a residential development, and that it be too hard (and there's no requirement to) look at the particular details of each and every development to see what type of an impact each one would have.  And I get it.  There's senior housing.  There are houses with more bedrooms and fewer bedrooms.  It'd be a pain to have to say "Well, we think that X number of kids are in each one," so maybe just having a basic flat rate is fine.  Even if, in particular cases, it's pretty clear that such a rate vastly overstates the particular impact of this development.  It's evenly applied, and it balances out at the end; e.g., it may be too low for, say, apartments with 4 bedrooms, which are likely to have a lot of kids, but it's nonetheless roughly accurate for everyone.  Roughly.

But still.  I feel bad for a developer who has to pay a big fee when we know for a fact that there's absolutely zero impact of the development on the services relevant to that fee.  So part of me might even be willing to create an exception for such very, very limited set of facts.  Maybe.

But ultimately I read one line -- about thirty pages into the opinion -- that made me think, well, okay, it's not perfect, but in the end, I'm okay with the fee in this case.

The reality is that, almost certainly, there will never be actual kids in the dorms.  The Court of Appeal talks about planning restricts and deeds and regulations and the like, but in the end, I'm okay with the assumption that no kids are actually there.

But, nonetheless, this line made sense to me:  "[I]t is also possible that children accompany a parent or parents for the seven-month season, and whether placed with local friends, relatives, or elsewhere, those children enroll in school."

Yeah.  That seems possible.  I'm sure lots of the kids are left at the worker's regular home.  And, yeah, for the others, I'll assume they're not allowed in the actual dorm.  But it's seven months.  Particularly if both parents are working far from home, it might well be that the parents take the kids with them and place them locally.  Not in the dorms.  But nonetheless locally in Salinas Valley.  Which in turn would have an impact on schools.  Making imposition of the fee legitimate.

So I was worried about the stark inequity of a $300,000 fee at the beginning.  But in the end, I'm okay with it.

It's not perfect.  But it's okay.  No manifest injustice.

People v. Martinez (Cal. Ct. App. - April 24, 2019)

Here's an example of a "He said, she said" rape case in which guilt seems fairly easily established beyond a reasonable doubt.

People v. Mazumder (Cal. Ct. App. - April 24, 2019)

Justice Goethals is right in this one.  For reasons even beyond the ones he expresses.

Admittedly, Justice Moore's majority opinion makes a ton of sense.  The petitioner pled guilty.  So how can he possibly later file a petition claiming that he was factually innocent of the offense?!  The Court of Appeal holds that he can't.

That pretty much naturally follows, right?

But it's wrong.

The Court of Appeal bases its holding principally on the words of the statute.  It says: "There are three classes of persons who may petition the court for a finding of factual innocence. (§ 851.8, subds. (a)(c)(d) & (e).) 'Those classes are: (1) persons who have been arrested but no accusatory pleading has yet been filed [subd. (a)]; (2) persons who have been arrested and an accusatory pleading has been filed but no conviction has occurred [subds. (c) & (d)]; and (3) persons who are ‘acquitted of a charge and it appears to the judge presiding at trial . . . that the defendant was factually innocent’ [subd. (e)].'"

You see where the majority is coming from here.  The first group doesn't apply to guilty pleas since an accusatory pleading was filed.  The third doesn't apply because the guy wasn't acquitted; he pleaded guilty. And the second only applies when "no conviction has occurred," and with a guilty plead, a conviction has occurred.

So there you have it.  You can't petition.  As a matter of law.

But that's actually not right.  At least in situations like this one.

Because, yes, the guy here pleaded guilty.  But he then moved under Penal Code 1203.4 to vacate his conviction.  Successfully.  So there's no more conviction.

Now, the Court of Appeal understandably says:  "Well, maybe there's a dismissal, but there was still that initial conviction.  He just completed probation successfully, and the Legislature decided to grant him (essentially) clemency under Section 1203.4.  You can still use that conviction for a variety of things."

True.  But we're talking about the words of the statute here.  And the words of Section 1203.4 are crystal clear:  When you successfully file such a petition, you are thereby "permitted by the court to withdraw his or her plead of guilty . . . and enter a plea of not guilty . . . and [have the court] dismiss the accusations or information against the defendant."  So you accordingly don't have a plea of guilty any more.  That's expressly what the statute says.

Which means that you're now in the second group of people who are permitted to file a petition for a finding of factual innocence.  Because, at this point, "no conviction has occurred."

One might respond -- not unreasonably -- that a conviction nonetheless had "occurred" in the past, ostensibly making a Section 851.8 factual innocence petition unavailable.  But such an argument is foreclosed by precedent.  The Court of Appeal held in Laiwala (cited in the majority opinion here) that someone who was convicted at trial but whose conviction was reversed on appeal was permitted to file a factual innocence petition.  And, yes, that's a slightly different case that the on at issue here.  But that holding nonetheless precludes an interpretation of Section 851.8 as barring anyone who had ever been found guilty from filing an innocence petition.  Because such an interpretation would have barred the defendant in that case as well.

What matters is instead whether they currently have a conviction.  And, on that point, the defendant in Laiwala and the defendant here are similarly situated.  That guy had a conviction but on appeal it was vacated.  This guy had a conviction but under Section 1203.4 he was permitted to withdraw his guilty plea and enter a not guilty plea and have the thing dismissed.  Same deal.

Don't get me wrong.  I'm entirely confident that most people who have pleaded guilty will in fact not be able to successfully petition for factual innocence.  Particularly given the fact they previously admitted the offense.  Given that admission, it's going to be incredibly rare for a trial court to find that the guy was in fact factually innocent.  Much less to make such a finding by clear and convincing evidence such that there's essentially no doubt about it.

But the point is that they're allowed to try, and there's no categorical bar to such relief.  Contrary to what the Court of Appeal holds in this opinion.

Nor do I think that such a result is absurd.  Indeed, the contrary seems far more problematic.  Take, for example, a guy who pleads guilty because the police viciously beat him every single day -- and, for good measure, let's say there's video proof that someone had a gun to his mother's head on the day the guy pleaded guilty, with the defendant having to falsely "take the rap" for the underlying crime lest his mother be killed.  Five years later, all this comes out, and the guy is allowed to withdraw his guilty plea and the charges are dismissed.

Under the Court of Appeal's ruling, that guy -- that innocent guy -- can't file a petition to be declared factually innocent.  Because he did, after all, plead guilty, so "none of the three categories" in Section 851.8 apply.  That seems obviously wrong to me.  So too here.

Again:  Unlike the "gun to the head" defendant, in your run-of-the-mill Section 1203.4 case, the fact that the guy previously pleaded guilty will almost certainly stop him from prevailing on the merits of his Section 851.8 petition.

But there's no categorical bar.  He's still eligible.  And if it's that rare case in which he originally pleaded guilty, but he's in fact factually innocent, then he's entitled to -- and should -- obtain relief.

Notwithstanding this opinion to the contrary.

Poncio v. Department of Resources (Cal. Ct. App. - April 23, 2019)

Yeah, that's a bribe.

Doe v. Westmont College (Cal. Ct. App. - April 23, 2019)

There are undoubtedly political upsides and downsides of living in a state like California, in which the relevant political branches are left of center. But at least one of the upsides, to me, is that places like that have opinions like these.

I'm not expressing a judgment on the merits of that opinion; merely its existence. In many (most?) other states, if you're expelled from a private university, there's pretty much nothing you can do, in contrast to the due process challenges you might be able to bring if you're expelled from a public college. But here in California, generally, you can seek judicial review.

Which seems a good thing to me. It's an important -- sometimes life-changing -- event in your life. Important enough to permit independent review.

I'm confident that the "John Doe" in today's opinion very much agrees.

People v. Superior Court (J.C. Penney) (Cal. Ct. App. - April 16, 2019)

I was surprised to see a case today captioned "People v. J.C. Penney Corp."  That's something you typically see in a criminal case, and those filed against corporations are rare.  It turns out it's a civil case about false advertising brought by the L.A. City Attorney, against J.C. Penney and a couple of other stores (Kohl's, Macy's and Sears) for asserting alleged "sale" prices that we're accurate -- or at least didn't comply with the California Business & Professions Code.  Makes sense.

I was even more surprised when I saw that the trial court sustained the defendants' demurrer on the ground that the statute was unconstitutionally vague.

I was less surprised when the Court of Appeal reversed.

Defendants raise a variety of fancy constitutional challenges; e.g., free speech, due process, etc.  But it seems to me that the Court of Appeal gets it right.  At least in this particular statute, there's no real vagueness problem with the terms "market price" and the like -- people of reasonable intelligence can understand what that means.  So the statute survives at least a facial challenge, which is what's been brought here.

I suspect that the City Attorney is correct that the defendants advertise fake "sale" prices that are in fact deceptive, and don't really -- or at least don't uniformly -- accurately describe what the goods in fact sold for in the recent past.  The government can, I think, constitutionally prohibit a store from, say, selling an item for $50, marking it up for 10 seconds to $180, and then reducing the price to $60 and saying "On SALE -- 66% off!"  Yeah, at one level, that's "truthful" advertising.  But it's deceptive and in the context of commercial speech, subject to regulation.

So, for now, L.A.'s lawsuit continues.

U.S. v. Loyoza (9th Cir. - April 11, 2019)

The slogan of United Airlines is:  "Fly the friendly skies."  Anyone who's been on a commercial airplane in the past decade knows that the skies are far from as friendly as they once were.  But the Ninth Circuit reminds us that it's not only cramped airplanes, absurd "incidental" fees, and other nastiness associated with the airlines that makes air travel far less glamorous than it once was.  You've also got the fear that you'll be criminally assaulted.

One case last week involved a criminal prosecution for sexual assault on board an airplane.  In that prosecution, "[d]uring an overnight flight from Tokyo, Japan to Los Angeles, California, Juan Pablo Price, a forty-six-year-old man, moved from his assigned seat to an open seat adjacent to that of a sleeping twenty-one-year-old female Japanese student, where he fondled her breast and slipped his hand into her underwear, touching her vagina."  Not something you want to have to deal with, for sure.

The very next day, the Ninth Circuit issued this opinion, which involved a straightforward (non-sexual) assault on a different airplane.  This time on a flight from Minneapolis to Los Angeles.  (Notice, if you will, that both flights were into Los Angeles.)  That case involved merely a punch to the face, but still, not something you want to have to deal with either.

That latest case also has an interesting doctrinal holding.  The majority opinion holds that under the federal venue statute, you have to charge the defendant in the state that the aircraft was flying over at the particular time of the assault, not (as here) merely in the venue in which the plane landed.  The Ninth Circuit noted that, in some cases, this might not be entirely easy to ascertain, stating:  "We acknowledge a creeping absurdity in our holding. Should it really be necessary for the government to pinpoint where precisely in the spacious skies an alleged assault occurred? Imagine an inflight robbery or homicide—or some other nightmare at 20,000 feet—that were to occur over the northeastern United States, home to three circuits, fifteen districts, and a half-dozen major airports, all in close proximity. How feasible would it be for the government to prove venue in such cluttered airspace?"  Not easy, the majority admits.  But not impossible.  So you gotta do it.

So if you're really angry about that guy behind you who keeps kicking your seat, maybe wait until you're over, say, Texas, or some other state in which the jury might perhaps be more sympathetic to your plight.  Then plunk him.

People v. Jones (Cal. Ct. App. - April 9, 2019)

This is fine.  But you know that prosecutors are no longer going to write down their thoughts about the various prospective jurors (lest the defense get those notes in discovery), right?

Diaz v. Sohnen Enterprises (Cal. Ct. App. - April 10, 2019)

You work for Employer.  You've got a written contract that says that you'll be paid $50,000 a year and that you will receive two weeks of vacation per year.  The contract is at will, so the employer can fire you whenever it wishes.

One day, Employer calls a staff meeting and explains that Employer is going through a rough patch. Employer orally tells all the employees the following:

(1) Effective immediately, every employee's pay will be reduced by $10,000 a year, and no vacations will be allowed.

(2) Effective immediately, every employee will be required to mow the CEO's lawn once a week for three hours, without additional compensation.

(3) Effective immediately, any dispute involving Employer and any employee will be decided not in court, but in binding arbitration.

You immediately stand up and tell Employer:  "No way.  I have a written contract.  I don't agree to these changes."  Employer responds:  "Tough for you.  We're unilaterally changing the contract.  If you continue to work here, we are going to deem that as consent to these changes."  You say:  "Look, you can fire me if you want to.  But to be clear:  I'm not agreeing to those changes.  If you continue to employ me, I'm going to deem that consent to our existing contract, not your proposed changed one."

You continue to report to work for Employer.  Employer does not fire you.  Four weeks later (you're paid monthly), you get your paycheck, and it's $800 short.  They've reduced your salary like they said they would.

You promptly quit, and immediately file a lawsuit against Employer, seeking $800 in damages for breach of contract.  Employer counterclaims for breach of contract, alleging that you failed to mow the lawn of Employer for four weeks, and it cost Employer $160 to hire a replacement.  Employer also moves to compel arbitration.  You say in response to both the motion and the counterclaim that you never agreed to Employer's proposed contract, so you're owed the $800 and aren't required to pay $160 or arbitrate your dispute.

Who wins?  Was there a contract?  Was there a meeting of the minds?  Does the answer vary as between the salary, the mowing, and the arbitration clause?

The Court of Appeal doesn't answer all of these questions.  But in a split opinion, on facts analogous to the above hypothetical, it does hold that -- as a matter of law -- the employee has in fact agreed to arbitrate under these conditions.  Expressly saying you don't agree isn't good enough.  You've still agreed.

I'm not quite sure why the Employer's unilateral "take it or leave it" (e.g., if you report to work you've agreed) is given priority over the Employee's unilateral "take it or leave it" (e.g., if you continue to employ me, you've agreed").  Particularly since the Employee's statement is consistent with an existing contract to which all parties did agree, so presumably, you've got to get a new meeting of the minds to change it.

Nor do I understand why arbitration would be any different than salary, or mowing the lawn, or anything else.  So if there's a distinction here, it'd be interesting to see where it comes from.

Regardless, that's the law (at least now) in California.  Even if you say you disagree, it's still a contract, and you're bound.

Demarest v. HSBC Bank (9th Cir. - April 8, 2019)

Diversity jurisdiction was one of the easier concepts in law school.  At least at its most basic level.  For example, it's not hard to remember that you've got to have complete diversity of citizenship.  A concept like that is likely to be on the test, and is (fairly) easily remembered.

But the details are often incredibly difficult.  How one treats corporations wasn't that hard -- place of incorporation and principal place of business -- though figuring out the latter wasn't invariably easy.  But then you've got associations, and insurers, and executors, and things like that.  All these artificial entities for which there are separate rules.

My guess is that your eyes pretty much glazed over when you got down to that level.  With the totally understandable approach of "Well, I get the basics fairly well, so let's move on."

Which is fine for law school.  But then, once you become a lawyer, when you have a case in which you have to actually confront (and brief) the issue, well, sorry.  You're stuck.

Today's (sole) Ninth Circuit opinion delves into the complicated issue of how you treat "trusts" in determining diversity jurisdiction; in particular, trusts created my mortgage securitization.  Do you just look at the citizenship of the trustee?  Or do you look at the citizenship of the beneficiaries (or both)?  After all, it's the latter who really care about the lawsuit.  Even though the former is the nominal defendant and legally represents the latter.  Who counts?

It's not an easy question.  Particularly since (1) the Supreme Court has been slowly changing all these diversity rules, at least at the margins, and (2) the number and complexity of artificial legal entities keeps increasing over time (which in turn partially explains (1)).  So does the rule remain the "usual" one:  that it's just the trustee that counts?  Or is this more like REITs and other trusts, where, under evolving law, it's the beneficiaries (at least in part) that matter?

Ultimately, the Ninth Circuit decides to just dance with the person who brung 'em.  It sticks with the traditional rule.  Only the trustee counts.

If the Supreme Court wants to change the rule, it's up to them.

Shoen v. Zacarias (Cal. Ct. App. - April 4, 2019)

I don't teach Property.  I don't want to teach Property.

But if I did teach Property, I'd have my first-year students read this opinion.

It involves a topic that seems much more practically important in the modern world than, say, who owns a wild fox.  A landowner grants a neighbor a (free) license to use part of his property -- here, a cliffside area for meditation -- and the neighbor spends some money improving the area.  Does that give the neighbor a perpetual license to use the thing, or can the landowner revoke the license at his leisure?

The trial court said that the license was perpetual.  The Court of Appeal reverses.

Justice Hoffstadt goes a very good job of exploring the relevant precedent and making sense of it.  You get a "perpetual" license (or at least a long one) if you've made "substantial" improvements to the property at issue or spent a "substantial" amount of money on the thing.  You can readily understand the equity behind that rule.

So the issue becomes:  What counts as "substantial"?

The Court of Appeal goes down the specific facts of this case, and does a great job.  It's a concrete example of a modern property dispute.  Definitely worth reading during one's first year of law school.

Plus, it highlights a practical -- somewhat counterintutive -- part of civil procedure.

Namely, that the parties litigate this case for years, and undoubtedly at the cost of tens of thousands of dollars, even though the property at issue almost certainly isn't worth even nearly that much.  You get into litigation and emotions boil over and everybody loses.  Even the winner.  It makes absolutely no sense that this thing was litigated for as long as it was.  It should have resolved.  It didn't.

So, yes, it made some good precedent.  And one side comes out the "winner" -- at least legally -- in the end.

But it's economically irrational to do stuff like this.  For everyone except the lawyers.

Workman v. Colichman (Cal. Ct. App. - April 3, 2019)

The sole published opinion by the Court of Appeal today reinforces a trend that's been building for the last several years, and sanctions the defendants and their counsel for filing a frivolous appeal of the denial of their anti-SLAPP motion.

The Court of Appeal is getting more serious about this stuff.  It's increasingly trying to deter the dilatory filing of anti-SLAPP appeals.

Imposing sanctions is but the most recent step.

Be forewarned.  You're undoubtedly going to see more of this in the years to come.

Even if the Legislature won't act to amend the anti-SLAPP statute, the Court of Appeal is starting to take matters into its own hands.

National Asian American Coalition v. Newsom (Cal. Ct. App. - April 2, 2019)

The fallout from the subprime mortgage crisis is far from over.  Today's opinion is just a portion of what's left.

This particular case involves what to do with the $410 million settlement that California received when the federal government and 49 states (with Oklahoma as the inexplicable holdout) sued the nation's five largest mortgage servicers for various violations of federal law.  Under the settlement agreement, those funds were to be used "for purposes intended to avoid preventable foreclosures, to ameliorate the effects of the foreclosure crisis, to enhance law enforcement efforts to prevent and prosecute financial fraud, or unfair or deceptive acts or practices and to compensate the States for costs resulting from the alleged unlawful conduct of [the Bank defendants]."  But over a series of years, California basically used ("allocated") that money to offset various general fund expenditures.

Various consumer groups brought suit in 2014, and were originally successful; with the trial court holding that "$331,044,084 was unlawfully appropriated from the National Mortgage Special Deposit Fund for purposes inconsistent with these instructions" but which hesitated to order that the money be put back.  The case then went up to the Court of Appeal, which largely agreed with the trial court on the merits but which granted a more expansive remedy, ordering "the immediate retransfer from the General Fund to the National Mortgage Special Deposit Fund the sum of $331,044,084."

At which point both the Legislature and the California Supreme Court get involved.

The Legislature doesn't like losing, so it passes a new law, which is expressly designed to abrogate the Court of Appeal's holding.  And the California Supreme Court thinks that the new law is a fairly material new matter, so it orders the Court of Appeal to take a new look at the issue under the new statute.

Which the Court of Appeal promptly does.  Leading to today's opinion.

Which completely reaffirms its prior holding and instructions.

The Legislature has a lot of power.  Power that private litigants typically don't possess.

But that doesn't mean that the Legislature uniformly gets what it wants.

Because there's separation of powers in our democracy.  Which allow you to lead the courts to water, but you can't always make 'em drink.