Friday, May 31, 2019

Longview Int'l v. Stirling (Cal. Ct. App. - May 31, 2019)

Who says you can't cogently and comprehensively resolve a civil appeal in less than five and a half double-spaced pages?!  Justice Grover can.

Thursday, May 30, 2019

In Re Southern California Gas Leak Cases (Cal. Supreme Ct. - May 30, 2019)

The California Supreme Court has been -- and, occasionally, still is -- at the forefront of modern torts jurisprudence.

But there's a reason why today's opinion is unanimous.  And doesn't expand tort liability one iota.

I wanted to quote from one or two paragraphs of Justice Cuellar's opinion to identify just why the Court doesn't allow businesses who were clearly damaged by the Southern California gas leaks -- but that nonetheless did not suffer actual "personal injury" or "property damage" -- to sue for the profits they undeniably lost from the thing.  The problem is that every single paragraph is just so darn good, it's hard to isolate just one or two.  So I'm going to make you read the whole shebang.

It's a folky, policy-centered, articulate, awesomely crafted decision.  Beautiful, really.

Were I able to write a tenth as well, I'd be a happy man. 

U.S. v. Graves (9th Cir. - May 30, 2019)

There's little doubt that the Ninth Circuit gets this one right as a matter of legal doctrine.  The district court thought that a life sentence was mandatory given the defendant's prior offenses, but that's not in fact true.  So a remand's required.

The government says -- accurately -- that the district court would have sentenced the defendant to a life sentence anyway.  Which we know because the district court expressly said so.

But the Ninth Circuit's response is spot on.   "Because the district court had already concluded that Graves was subject to a mandatory life sentence, he did not submit to a presentence interview or file a sentencing memorandum in an effort to obtain a lesser sentence because that effort would have been futile."  So, yep, a remand is the appropriate response.

Now, will Judge Sabraw give the defendant a life sentence once the case gets back to him?  I'm quite confident he will.  (At least if the recently-passed First Step Act doesn't apply.)

But going through the motions is an important part of the process.  Particularly when you're making someone spend the rest of his life in prison.

Tuesday, May 28, 2019

Jozefowicz v. Allstate Ins. Co. (Cal. Ct. App. - May 28, 2019)

There are a plethora of legal subjects about which I know a lot.  The law of negotiable instruments is not one of them.  Do I write (and cash) checks?  Sure.  Do I actually know the rules about them?  Not really.  Not in any legal sense, anyway.

But today's opinion sheds some light on the topic.  I did not know, for example, that you could file an independent action against someone who wrote you a check if you end of losing the check (at least in California).  That's super helpful to know.  If only because I'm  confident that I've lost checks before, and will lose them again.  Sure, if they're nice, the person who wrote the check will probably send you a replacement.  But not everyone is nice.

There are more details about this particular statutory provision in the opinion.  Details that include why the recipient of the check here doesn't end up getting paid.

But for your prototypical "lost check," fear not.  You can get it back.

Good to know.

Thursday, May 23, 2019

People v. Astorga-Lider (Cal. Ct. App. - May 22, 2019)

I'm glad there are cases (and procedures) like this one.

Criminal Defendant fraudulently gets Victim to sign various mortgage documents by pretending that they're something else, and funnels the money to herself.  She steals several million dollars that way.  She ultimately pleads guilty and is sentenced to 11 years is prison.

There's a rule that says that, as part of a criminal proceeding, the trial court is allowed to declare false or forged documents to be precisely that.  Thankfully.  So the trial court does so.  But the adversely affected lender (Deo) appeals, saying that you can't do that in a criminal case -- that it's a civil matter (and that the civil rule is different).

But it seems to me that you can indeed short circuit things when you've already resolved the relevant criminal case.  I'm not entirely sure I'm super excited about affecting third party rights through such a procedure (like here).  But it seems at least tolerable.  And if we already know that someone's been criminally tricked into signing a document, more than likely, it seems like you're entitled to get out of the thing.

Without having to go through a year or two of expensive litigation.

People v. Erskine (Cal. Supreme Ct. - May 23, 2019)

It's a case from San Diego, and involves two boys -- nine-year old Jonathan, and his brother, thirteen-year old Charles -- who went out on a bike ride and never returned.  So it touches a fair piece close to home for me.  Their killer was Scott Erskine.  He's sentenced to death.  And the California Supreme Court unanimously affirms.

It's not hard to see why.  When you read all the things that Mr. Erskine has done, it's hard to think of a more fitting candidate for the death penalty.  This is not one of those cases where you wonder why this particular person was sentenced to death but others with similar crimes are spared that fate.

I know that Mr. Erskine will almost certainly not in fact be executed by the state.  But you definitely see why that was his sentence.  And why many would prefer that it be carried out.

Wednesday, May 22, 2019

Shalabi v. Fontana (Cal. Ct. App. - May 22, 2019)

Rarely do you see the Court of Appeal refuse to following a controlling decision from the California Supreme Court that's directly on point and that has no intervening precedent to undercut it.

Yet it happens today.

Sure, the Court of Appeal doesn't expressly say it's refusing to follow controlling precedent.  But trust me.  That's exactly what it's doing.

Don't get me wrong.  I totally understand why the Court of Appeal is doing what it does.  Because the California Supreme Court;s holding was definitely wrong.  So I get why you'd want to ignore it.

Still.  We do have thing thing called vertical precedent.  So it's pretty bold to do what the Court of Appeal does today.

The issue is whether the statute of limitations has expired.  It's a lawsuit brought by someone who was a minor at the time of the incident, so that statute only starts running on his 18th birthday.  He turned 18 on December 3, 2011.  He filed suit exactly two years later, on December 3, 2013.  Is that timely?  (The statute of limitations for this action is two years.)

The Court of Appeal says:  Yes.  You've got two years, and you filed on the last day.  You're good to go.

Which, on the merits, is right.

With one small problem.

There's a California Supreme Court case in 1884 that squarely says exactly the opposite.  On identical facts.  Seriously.  The minor there turned 21 (the relevant age at the time) on April 11, 1876, and filed suit exactly five years (the relevant limitations period) later, on April 11, 1881.  You can't get more on all fours than that.  Yet the California Supreme Court held -- unanimously, no less -- that the suit was time-barred.  On the theory -- expressed concisely, in a single paragraph -- that since the minor was no longer a minor "on the first minute" of his birthday, filing on his birthday (presumably after 12:01 a.m.) was outside the limitations period.

Just like in today's case.

There's no way to get around that 1884 opinion.  (It's Ganal v. Soher, but I can't find a publicly available link; sorry).  It's the same case.  If it's right, today's opinion by the Court of Appeal is wrong.

The Court of Appeal has an answer, of course.  It says that the relevant principle -- and it's right on this -- comes from Section 12 of the California Civil Procedure Code, which says that in calculating time, you exclude the first day, but include the last.  Which makes filing on the exact day of your birthday timely.

True.  That's indeed what it says.

But Section 12 has existed, unchanged, since 1872.  The same was true in 1884.  Yet that case came out the other way.  Both cases cannot be right.  They cannot be reconciled.

The Court of Appeal insists that since the 1884 case didn't expressly talk about Section 12, it's okay to ignore it, since cases don't stand for propositions they don't discuss.  But that seems fairly weak tea to me, at least for cases that (like here) are squarely on all fours, and on identical facts.  I mean, it's also true that the plaintiff's first name in the 1884 case was Henry, whereas the plaintiff's first name here is Luis.  Distinction without a difference.  Cases that are irreconcilable remain so.

Indeed, if you were desperate to distinguish the two cases, there seems to me a better way to go than the way the Court of Appeal went anyway.  In the 1884 case, there was an express statute (Section 26 of the Civil Code) that said that you calculate dates "from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority."  But it appears that this statue was repealed by the Legislature in 1993.  So if you're really desperate to say that relevant authority has changed, I might be inclined to rely on that -- since the 1884 holding was indeed expressly based on that statute, so it's repeal seems fairly relevant.  And stronger, IMHO, than saying that you can ignore an on-point holding of the California Supreme Court because they forgot to mention a statute (Section 12) that existed both then and now.

But, again, I'm sympathetic.  The Court of Appeal is right.  This case is not, in fact, time-barred.  Just as the case in 1884 was not, in fact, time-barred.  Regardless of what the California Supreme Court said back then.

It's just that the Court of Appeal isn't technically allowed to say so.  Precedent and all.

In the end, here's what should happen.  The California Supreme Court should grant review in this case.  On it's own or otherwise.  And, in a quick, short, super easy opinion, overrule the 1884 case.  Wrong then, wrong now.  For the exact reasons the Court of Appeal articulates.

'Cause the California Supreme Court can do that.

And should.

Perez v. City of Roseville (9th Cir. - May 21, 2019)

In February 2018, Judge Reinhardt authors a majority opinion that reverses the district court's grant of summary judgment.  There's no dissent; Judge Tashima concurs in the result.

A judge on the Ninth Circuit calls for en banc review.  Judge Reinhardt then dies.  Judge Ikuta is drawn to replace him.

With its new member, the newly constituted panel completely reverses course, and affirms the grant of summary judgment.  The original member of the majority opinion (alongside Judge Reinhardt) dissents, saying not only that the original opinion was correct, but arguing that once an en banc call is made, only the en banc court should reverse the panel's opinion -- that it's unseemly that a judge's death should change things.  (Parenthetically, Judge Tashima never explains what made him change his mind from the original opinion, in which he concurred in the result, but now reaches an opposite conclusion.)

We'll see if the Ninth Circuit wants to take this en banc.  I suspect they'll be at least several votes to do so.

Monday, May 20, 2019

Murray v. BEJ Minerals (9th Cir. - May 20, 2019)

I discussed last year the Ninth Circuit's opinion about whether dinosaur fossils are "minerals" under relevant legal principles.  The Ninth Circuit took the case en banc, and today, it decides to let the Montana Supreme Court resolve the issue.

The fossils have been there for a while.  Resolving their ownership will take a little bit longer than anticipated.

Paxton v. Board of Administration (Cal. Ct. App. - May 20, 2019)

Government work is tough:

"The Department of Social Services is the state agency responsible for determining, through its Disability Determination Service Division, the medical eligibility of disabled Californians who are seeking federal Social Security benefits or state Medi-Cal benefits. Paxton is a medical consultant-psychiatrist who reviews claims for the federal program. . . . These consultants are expected to be at work for “core hours,” which are 9:00 a.m. to 11:30 a.m. and 1:30 p.m. to 2:30 p.m., and to average 40 hours per week, but otherwise they have flexibility in deciding when they work.

The Department of Social Services has suffered from periodic backlogs of disability review cases in the federal program. In 1993, the Department of Social Services received an exemption from the Department of Personnel Administration1 to temporarily pay overtime to consultants to deal with the pending cases even though they are salaried employees and such payments are inconsistent with the Fair Labor Standards Act of 1938 (29 U.S.C. § 201 et seq.). The Department of Personnel Administration granted the temporary exemption with the expectation that the Department of Social Services would adopt an alternative to paying overtime.

In 1996, after a second request for an exemption was denied, the Department of Social Services proposed requiring consultants to work extra hours without compensation due to the extra workload and their classification as professional employees exempt from overtime and for whom “[t]he regular rate of pay is full compensation for all time that is required for the employee to perform the duties of the position.” The union representing the consultants rejected this proposal “out of hand.” The Department of Social Services and the union thereafter agreed to a voluntary bonus program “for processing additional workload.” Under the bonus program, consultants would be paid for each case closed above a certain threshold per week. . . .

Paxton participated in the bonus program from 2005 until it ended. During that period, consultants were paid $27 per case after 90 cases per week. The trial court found that “[t]he 90-case threshold was not hard to exceed in part because the threshold never was adjusted to account for increased efficiencies occasioned by computerization of the records and use of more experienced analysts.” Paxton and two retired consultants testified that they did not work more than 40 hours per week. Paxton was able to earn significant bonuses by spending an average of only five minutes to review a case.2 At this rate, he surpassed the weekly threshold for achieving a bonus in about a day and a half. As a result, he earned over $1.2 million in bonuses. In 2010, a particularly lucrative year, his monthly bonuses ranged from $16,821 to $39,501, more than three times his monthly salary. Paxton still works for the Department of Social Services."

Thursday, May 16, 2019

Columbo v. Kinkle, Rodiger & Spriggs (Cal. Ct. App. - May 16, 2019)

Sometimes, to briefly state the facts of the case is sufficient itself to state the appropriate holding:

"A vexatious litigant’s request to sue his attorneys for legal malpractice was denied by the superior court, as was his motion for reconsideration of that request. This court denied extraordinary relief. Undaunted, the vexatious litigant asked a different presiding judge to give him leave to file the identical legal malpractice complaint. This time, his request was granted and the current action was filed."

Yep.  That's enough to know how this one should (and does) come out.

"As a matter of both substantive legal doctrine and fundamental fairness, litigants are only entitled to one bite at the apple. But this vexatious litigant refuses to stop biting. We conclude the doctrine of res judicata precludes a litigant from filing successive prefiling requests, and therefore, we affirm the judgment."

Wednesday, May 15, 2019

County of Los Angeles v. Hoa (Cal. Ct. App. - May 15, 2019)

"Beginning in 2010, and as a result of a serious medical condition, Hoa took a number of extended medical leaves from work. In early 2013, Hoa believed, and her doctor reported, she was able to return to work with workplace accommodations. When Hoa reported for work, however, the County did not allow her to work. Instead, under Rule 9.07B, the County required Hoa to submit to a medical reevaluation, which she did in May 2013. . . .

A County clinical psychologist with Occupational Health Programs conducted the medical reevaluation. The psychologist determined Hoa suffered from a “chronic and persistent psychological condition” that had “caused her to miss an extraordinary amount of time from work over the past several years.” The psychologist also reported that, when at work and “despite numerous accommodations that the department has made (such as assigning [Hoa] only a small fraction of the caseload that other co-workers carry), [Hoa’s] performance has been unsatisfactory and punctuated by complaints from participants.” As a result of the May 2013 medical reevaluation, Occupational Health Programs determined “Hoa’s psychological condition impairs her ability to think clearly or carry-through with an activity. From a practical standpoint, she is unable to effectively interact with others or in situations that require her to perform even the most rudimentary tasks. Due to the severity of her illness, Ms. Hoa is unable to perform any of the essential job duties of her current, or any other, position presently and in the foreseeable future.”"

Thus began a series of hearings, motions and litigation that progressed for another six years, ending only today, when the Court of Appeal reverses the decision below and holds Ms. Hoa not entitled to any relief.

The public sector is often quite different than the private sector. 

Tuesday, May 14, 2019

County of Orange v. Seneca Ins. Co. (Cal. Ct. App. - May 14, 2019)

I'm glad the Court of Appeal published this opinion.  Not just because it's correct on the merits, as it surely is.  But because it implicitly publicizes a limitation on the enforcement of certain judgments that seems bizarre to me, and that I think the Legislature should abrogate.

A surety posts a bond for a criminal defendant, and the guy doesn't show.  So the bondsman is liable on the bond, and is ordered to pay the $100,000 bond.  The bondsman doesn't.  Simply doesn't pay.

Which, ordinarily, would lead to rapid enforcement action, etc.  But, here, for whatever reason, the County of Orange doesn't seem to be particularly worried.  Years go by with no attempt to force the surety to pay.

Here's the crazy (to me) thing:  Apparently there's a statute (Section 1306) that says that you can't enforce a judgment on a bond after two years.  (“The right to enforce a summary judgment entered against a bondsman pursuant to this section shall expire two years after the entry of the judgment.”)  Which just seems to me a crazy short period.  For a regular civil judgment, you've got like 10 years to enforce it.  Why the government should have a shorter time period -- for a debt arising in a criminal case, no less, with its corresponding public policy implications -- is simply beyond me.

Maybe there's a secret reason behind Section 1306 that I can't presently fathom.  But unless someone persuades me otherwise, were I a member of the Legislature, I'd almost definitely vote to amend Section 1306 to extend the time limit of two years to, like, ten.  (Unless, of course, the various sureties and their lobbyists paid me a substantial bribe; err, I mean, contributed to my campaign.)

Ultimately, here, the Court of Appeal enforces a different statue, which states -- totally reasonably, IMHO -- that if a surety has an unpaid judgment against it, it can't be a surety in the interim.  Totally fair.

But in the perfect (or at least better) world, the surety would be precluded from writing new bonds and have to pay the $100,000 it owes.  Rather than just change its name, get a new license, and then go back to writing bonds that it has no intention of ever paying.

Hopefully someone in the Legislature will eventually pick up on this.

Monday, May 13, 2019

Front Line Motor Cars v. Webb (Cal. Ct. App. - May 13, 2019)

It's too bad that the DMV can't do more to punish the used car dealer -- Front Line Motors -- in this case.  But at least it conditionally revoked the dealer's license for two years, and the Court of Appeal affirms.

It's the kind of used car dealer you love to hate.  The facts:

"Twyla Davis purchased a car from Dealer. At Dealer’s office, Davis applied for financing from First Credit Finance (Financier). Davis paid a $2,000 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500 two weeks later. One week after Davis signed the contract, Dealer told her she was to return the car because financing had been denied. Three or four days after hearing from Dealer, and on the same day she received the declination letter from Financier, Dealer repossessed the car. Davis asked Dealer to refund her down payment. Dealer refused, telling Davis she would have to sue Dealer in court for the money.

Zaneicesha Phillips paid Dealer a $3,800 down payment and was obligated under the retail installment sale contract to pay an additional deferred down payment of $500. She had constant mechanical trouble with the car and tried to return it, but Dealer refused, saying the deal was “finalized.” After the car was repossessed and Dealer’s manager told Phillips the loan was denied, Phillips requested a refund of her down payment. The manager “laughed and said, ‘No way, . . . your loss . . . take us to court.’”

As you can probably imagine, the people whose down payments were wrongfully retained were not individuals with money to burn.  They're vulnerable people buying used cars.  To laugh at them as you take their down payment adds insult to injury.

As the Court of Appeal says:  "Here, Dealer’s conduct confirms our worst stereotype of used car salesmen. Unabashedly, Dealer repossessed the cars in question, resold the vehicles to new buyers, retained Davis’ and Phillips’ entire down payments despite the women’s entreaties for the money’s return, and challenged the women to sue it in court."

Here's hoping that entities like Front Line Motors go out of business permanently.

Thursday, May 09, 2019

In re H.D. (Cal. Ct. App. - May 8, 2019)


The little kids want to be with stepmom, who's taking care of them now, but biological mother ("Mother") wants them too. Mother lost the kids when she was addicted to meth, at which point Father got custody.

What to do?

The dispositive factual question is whether Mother ever "abandoned" the kids.  The trial court thought she did.  Over a year ago, she tried to talk to the kids, but she was addicted then, and Father didn't let her.  So then Mother tries to get clean, and for over a year, doesn't talk to the kids, doesn't reach out to the kids, doesn't pay child support, etc.

The trial court thinks that's abandonment.

The Court of Appeal reverses.

You can see where the Court of Appeal's coming from.  It's harsh (and counterproductive) to say that a parent "abandons" their kids just because they're in treatment.  We don't want that.  We want parents to get clean.

So the Court of Appeal says that's reasonable, and wasn't "abandoning" the kids.

But I can also see why the trial court might have come out the other way.  It's not like Mother was in an inpatient facility for an entire year.  During the year and a half she had no contact with the kids, she was in residential treatment for a sum total of 30 days.

Yes, she did six months of sober living after that, then another six months of outpatient treatment.  But it's not like Mother was incapable of at least trying to contact her kids during that period.  You can still write letters, or make telephone calls, or send a $5 bill on a kid's birthday even when you're living in a sober living home, or doing the occasional outpatient therapy.  You've got an entire life to live.  Sure, you may be primarily focused on staying sober.  But that doesn't mean that you can just ignore your kids, or that it's impossible to (at least try to) reach out.  Particularly if it's true that you are in fact clean and sober during this entire year.

Now, it'd be one thing if Mother was laser-focused on sobriety during this entire year-long period.  I could see a court saying that if you're really spending every waking moment on sobriety, that doesn't mean you're ditching your kids during this period.

But during this year-long period, Mother meets a guy, gets engaged, and gets pregnant.  So clearly she's spending some time not focusing exclusively on sobriety, and instead on developing and nurturing human relationships.  If you've got time to spend on a new guy -- no small interpersonal task -- you've got time to spend on your kids, no?

Or at least I could imagine a trial court rationally seeing it that way.  Having actually seen and evaluated the participants in this process and their veracity, as opposed to merely viewing a cold appellate record.

So this may be one of those cases where the standard of review might actually matter.  I could see a trial court saying, you know what, sure, she could have reached out to the kids during that year and a half, and, yeah, she was doing a lot of outside things apart from merely staying sober, but I still think she always thought about the kids and planned on getting back with them.

But I could also see a trial court concluding otherwise; that during that 18-month period, she simply didn't care about her existing kids, and was more focused on herself and her new relationship and did nothing at all -- deliberately -- with respect to those children, thereby abandoning them.  At which point we're free to give the kids to their Father and the parents to which they've grown accustomed and consider their family.

But the Court of Appeal thinks there's only one conclusion to be drawn from the undisputed facts.

As I started out:  Maybe.

Maybe not.

Wednesday, May 08, 2019

Cedar Point Nursery v. Shiroma (9th Cir. - May 8, 2019)

Judge Paez's majority opinion today is spot on.

In California, a union can potentially get access to seasonal agricultural workers (e.g., to try to unionize them) by giving notice to the employer that they want to go on the field for an hour before work and/or an hour after work to talk with the workers.  The theory behind this rule is that it's often hard to otherwise gain access to these employees, who (necessarily) often work in different fields on different days, etc.

The plaintiffs in this case are employer/landowners who claim that this California regulation is an unconstitutional per se taking.  On the theory that it's authorizes an express trespass on their land.  So, they say, they're entitled to compensation.

I'm somewhat sympathetic to this position, at least as a purely legal matter.  It is, after all, a trespass, and it's definitely their land.  Just as I wouldn't want a stranger coming on my land, I can get why an employer doesn't necessarily want strangers coming on theirs.  The right to exclude being a huge part of the relevant bundle of sticks, as it were.

But here's the thing:

Plaintiffs bring a claim for a per se taking.  That's a big deal.  Only particular types of things are per se takings.  The first is “where government requires an owner to suffer a permanent physical invasion of her property--however minor."  But the regulation at issue definitely isn't a permanent physical invasion of property.  It's limited in time (an hour before and after work) as well as frequency (four times a year).  Clearly that's not a permanent physical invasion.  The other type of per se taking is when a governmental act “completely deprives an owner of ‘all economically beneficial us[e]’ of her property.”  That too is obviously inapplicable here, since the landowner can (and does) still use the property to productively farm notwithstanding the temporary intrusion.

Everything else may potentially be a "regulatory taking" that's subject to mandatory compensation, but it's governed by a different legal test.  It's not per se.  And plaintiffs make it crystal clear that they are only interested in bringing a per se claim, and refuse to amend their complaint to allege anything less.

Okay.  So be it.  Maybe there's a regulatory takings claim.  Though, on that test, the limited nature of the intrusion -- and the public interest in favor of it -- maybe not.  But if that claim -- the one that may perhaps have legal merit -- isn't one that the plaintiffs are interested in bringing, then this case should be resolved exactly as Judge Paez does.  Notwithstanding Judge Leavy's dissent to the contrary.


Monday, May 06, 2019 v. DoubleVerify, Inc. (Cal. Supreme Ct. - May 6, 2019)

This is one of those (rare) days in which there's stuff from the appellate judiciary in California but not much exciting stuff.  Or at least not much that's particularly exciting to talk about.  We'll see if the Court of Appeal publishes something this afternoon that's the exception to today's rule.

In the meantime, at a minimum, this opinion from the California Supreme Court is worth at least knowing about.  It's an anti-SLAPP appeal that holds that you can consider the "context" of the underlying speech -- e.g., that it's commercial speech -- in deciding whether it qualifies as "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest” under the "residual" anti-SLAPP provision in Section 425.16(e)(4).

That doesn't mean that no commercial speech is covered.  But in "evaluating" whether subsection (e)(4) applies, the California Supreme Court basically says that you can look at everything.  Everything. So go ahead and do so.

A narrow but nonetheless important part of California's evolving anti-SLAPP jurisprudence.

Friday, May 03, 2019

People v. Salcido (Cal. Ct. App. - May 3, 2019)

When you're reviewing a conviction for sufficiency of the evidence, the deference given to the factual findings below is fairly significant.  For that reason, on the merits, I'm not sure that this opinion is wrong.

The language (and approach) that Justice Ramirez employs nonetheless seems a little bit strong.

It's an unsophisticated defendant, Sara Salcido, who's acting as an "immigration consultant" even though a formal immigration consultant has to jump through various hoops to be licensed.  Ms. Salcido is "helping" immigrants get green cards, etc., except that at least in several cases, it appears that she's simply taking their money and not doing much actual work (e.g., not filing the relevant papers).  So the state charges her not only with the relevant crime of "unlawfully engaging in the business of an immigration consultant, a misdemeanor," but also with grand theft -- a much bigger deal.

Fair enough.  She's arguably guilty of those offenses, and the trial court so found.

But one of the big sticking points of those offenses is that the government had to prove that Ms. Salcido had fraudulent intent.  Here's what Justice Ramirez says about that:

"The trial court could also reasonably find fraudulent intent. . . . At the preliminary hearing, she testified: “Q. . . . [Y]ou’re aware that the State of California requires you to pass a background check, right? “A. I didn’t know about that until 2015. “Q. And you’re aware that you’re also required to have a $100,000 bond on file; correct? [¶] . . . “[A.] Yes, I read about that. “Q. . . . You did know that? “A. Yes.” Because she carefully specified when she learned about the background check requirement, but she did not specify when she learned about the bond requirement, it is fairly inferable that she knew about the bond requirement at all relevant times."

Respectfully, that's not the inference (at all) that I would draw from that testimony.  Nor is it how normal people talk -- or what they mean -- when they say what Ms. Salcido says.

They asked her if she knew about the background check, and she said that she knew about it now, sure (she had, after all, been criminally charged with it by that point), but volunteered that this was something she had just learned, and didn't know about it until 2015.  They then immediately asked her about the closely bond related requirement, and she she said that she "read about that" as well.  But didn't at that point spontaneously re-volunteer the words that she had just said -- that this was something she had read about now, but didn't know before 2015.

You could draw the inference that because she didn't restate the same thing that she had just stated seconds ago, she was deliberately drawing a distinction between the two.  But I don't think that's how normal people talk -- much less what Ms. Salcido actually meant.  She made the point that, yes, she knew about the relevant rules now, but said she didn't know about them before.  Then she was asked about a different (related) rule, and she said, yeah, again, she's "read about that," just like she read about the background check thing.  I think it's plausible -- indeed, likely -- what what she meant was to say that, yes, she read about that, just like she read about the other thing, but not until recently.  I don't think she meant to admit -- as the Court of Appeal basically holds -- that she at all times knew about the bond (but not the background check), and hence was confessing her guilt.  I think she just didn't feel the need to repeat the same point that she had volunteered just a second or two previously.

Nor did the prosecutor bother to ask her:  "So, you say you didn't know about the background check until 2015, but you admit that you knew about the bond requirement before then, right?"  For good reason.  Since I'm fairly positive that Ms. Salcido would have said:  "No, I learned about both of them at the same time, when I read about them in 2015.  That's what I meant."

To me, it might be a permissible inference -- one that a skeptical factfinder that disbelieved Ms. Salcido might well come to -- that she knew about the one requirement (or both) before 2015.  But I don't think that, as Justice Ramirez says, that Ms. Salcido's claim "at trial . . . that she did not learn that she needed a bond until September or November 2013" was "contradicted" by her testimony about the background check.  Seems to me like she was just speaking loosely.

Like normal people often do.  Particularly when they're under stress; e.g., at their preliminary hearings.

Wednesday, May 01, 2019

People v. Bolding (Cal. Ct. App. - May 1, 2019)

Today's opinion makes me wonder if the defendants charged in the college admissions scandal might eventually have a state law problem as well.

The existing defendants have all been charged with federal crimes, in federal court.  But -- at least currently -- double jeopardy doesn't bar California (or other states) from charging them with state crimes as well.

Many of the existing defendants have recently been charged with additional counts of money laundering -- an offense that carries substantially additional jail time.  And "money laundering" includes a ton of stuff that you wouldn't ordinarily think at all counted as money laundering, so it's likely that the defendants are in fact guilty of those offenses.

Today's case isn't one of the college admissions cases.  But the Court of Appeal today makes state law money laundering cases even easier to prosecute than similar federal law cases, holding that Ninth Circuit precedent that requires "tracing" doesn't apply in California (and thereby disagreeing with a prior Court of Appeal opinion to the contrary).

More bad news if you paid a lot of money to get your kid admitted to a college by pretending that s/he was an athlete.