In re D.R. (Cal. Ct. App. - Aug. 30, 2019)

Looking for a father before taking away his kids?  You've got to look on Facebook.  Otherwise we're going to reverse you.

So holds the Court of Appeal.

More accurately, you've got to look on Facebook when there's ample reason to believe (as here) that the father's relatives -- to whom you can easily talk -- can point out which Facebook page is father's.  It's not enough to just look on Facebook and say "There are too many people with that name; we can't tell which is Father."  Just ask his brother.  He knows which one.

Not that tough.

Capp v. County of San Diego (9th Cir. Aug. 30, 2019)

San Diego attorney Jonathan Capp receives some good news today from the Ninth Circuit, which reinstates (in part) his lawsuit against the County of San Diego in a matter arising out of its child welfare investigation of his family (while he was in the midst of divorce proceedings).

But be careful what you wish for.

The Ninth Circuit holds that Capp -- who's representing himself -- has adequately pled a retaliation claim.  But the panel repeatedly notes that this doesn't necessarily mean that Capp will survive on summary judgment.  Just that he's adequately pleaded the cause of action.

I suspect that the district court judge shares the Ninth Circuit's implicit skepticism over whether the County really retaliated against Capp, or was merely (as it will certainly contend on remand) worried about the welfare of Capp's children.

But for now, Capp gets to continue his lawsuit.

Whether that will turn into additional time tilting at windmills remains to be seen.

In re Conservatorships of M.M. & D.C. (Cal. Ct. App. - Aug. 29, 2019)

The most recent opinions published by the Court of Appeal (here and here) are both conservatorship cases.  Both under the Lanterman-Petris-Short Act (LPS).  Which means they involve individuals with serious problems (and, as a result, serious constraints).

In the first case, M.M. had a history of "schizophrenia and psychotic disorders, was unwilling to accept voluntary treatment, and [was] unable and unwilling to provide for his personal needs for food, clothing, and shelter."  He also had serious medical issues, and was admitted when he passed out on a bus.  His testimony at his hearing was often "rambling and nonsensical," and the jury found him gravely disabled.

In the second case, D.C. had also been diagnosed with schizophrenia, and was placed on a 5150 hold  "after she threatened to hit her mother and 'burn the house down with [her mother] in it.'"  When the responding officers when to her home, furniture was strewn all round the place, and there were holes in the walls.  Her thoughts were tangential and disorganized, and she was so agitated that she had to be sedated.  She also tested positive for amphetamines (which I'm sure didn't help).  And she had an incredibly serious lice problem.  (Yuk.)

To give a sense of D.C.'s thinking, at trial, when she was asked whether or not she agreed with her diagnosis of schizophrenia, she testified:  "I think I know what they’re talking about, but it’s—well, I thought it was like when you don’t understand you yell, and because I used to see them throughout my window, the guys that would come through the burger stand, and I would shut my window and be yelling, and my mom said maybe you are schizophrenic or something. . . . I says no.”  Uh, yeah.  I'm not surprised the jury found her gravely disabled as well.

The depressing thing about these cases is that you wonder whether the people at issue are ever going to get better.  Or whether, instead, they'll be institutionalized forever.  Or, alternately, caught in a vicious and never-ending cycle of being treated, released, going off their meds, being readmitted, retreated, rereleased, readmitted, etc. until they ultimately die.  None of which sounds good.

And how not fun would be it to be a juror in one of these proceedings?  You sit there listening to the horror that is someone else's life and then decide to institutionalize them even though they haven't done anything wrong to anyone -- basically because there's no good alternative.  I'd much, much rather be a juror in a civil or criminal case.  Ditto for being a judge in those proceedings, I suspect.

Of course you want to maximize someone's liberty if you can.  But these cases seem almost invariably depressing.  With, again, not much of an alternative.

So that's how this afternoon has gone so far in the Court of Appeal.

In re R.C. (Cal. Ct. App. - Aug. 28, 2019)

Justice Currey begins this opinion by saying:  "This case underscores the critical need to educate our youth about the evils of misogyny and sexual bullying, and the virtues of respect, kindness, and compassion."  Laudable goals, to be sure.

But "misogyny and sexual bullying" may understate the nature of the transgression here.

"R.C., then a high school student, used his cellphone to record a video of a classmate, K.V. — without her knowledge or permission — while they were engaged in consensual sex. K.V. repeatedly asked him to delete the video. In response, R.C. unsuccessfully tried to condition deletion of the video on K.V.’s agreement to have sex with R.C.’s friend."

That's not just sexist bullying.  It's disgusting.  The exact opposite -- I agree -- of "respect."

Ultimately, I agree with the Court of Appeal that the camera here was "concealed," though I think the issue's a close one. The cell phone camera wasn't "hidden" like you usually think the word entails.  It was right out in the open.

But R.C. held the camera up (while they were having sex) behind her back, and didn't tell her that he had started recording until after.  Putting it behind her back, where she couldn't see it, counts as that camera being "concealed."  Since a reasonable factfinder could conclude that one reason R.C. put it there, rather than in front of her, when he started recording was to start filming without her consent.

I cannot tell you what I would do to any of my children if they did what R.C. did.  (And that's even without the whole "I'll delete it the video if you have sex with my friend" stuff.)  Because it would involve extraordinary measures.

People v. Buchanan (Cal. Ct. App. - Aug. 28, 2019)

I'm not even going to describe the facts of this kidnapping and sexual assault case.  You can read them for yourself if you'd like.  Suffice it to say that these facts, plus Mr. Bucanan's history as (inter alia) a sex offender, more than explain why he was convicted and sentenced to forever in prison.

Not someone you want out on the streets.  Particularly if you are a woman.

In re Marriage of Taeb (Cal. Ct. App. - Aug. 26, 2019)

Maybe it's just me.  But if I was an attorney (and I am), I'd rather just pay a $2000 sanction award against me than (1) spend the time and effort to appeal that award, and (2) subsequently endure a 27-page published opinion that mentioned my name 90 separate times (!) and announced to the world in excruciating detail the mistakes I made and why the trial court was fully warranted in sanctioning me.

Especially since I have to pay the $2000 either way.

Sacramento-area attorney Michelle Trigger made a different call.  This opinion was the result.

In retrospect, probably a mistake.  Even if you don't have several thousand dollars lying around within easy reach.

Still better than the alternative.

Benton v. Benton (Cal. Ct. App. - Aug. 27, 2019)

Today's ten-page opinion can be accurately be summarized by saying:  "The statute says you can't appeal here.  So you can't.  Appeal dismissed."

Yep.  That's what it says.  Pretty clearly.

U.S. v. Town of Colorado City (9th Cir. - Aug. 26, 2019)

When was the last time you saw the United States sue an entire city.  Not the residents.  But the actual city itself?

And when was the last time you saw a lawsuit that claimed that an entire city had been taken over by a particular religious organization, and that town's police power abused to advance the interests of that religion (and its members) -- to the detriment of "apostates," no less?

And it'd be even worse if the religious group in question was a particular sect that believed in child marriages and actively helped the leader of that group evade an FBI warrant for sexual misconduct with children, right?

Yet that's all here.

Not something you see every day.

Edmo v. Corizon (9th Cir. - Aug. 23, 2019)

It's fairly unusual for a high-profile, 84-page opinion to be per curiam rather than signed by its author.

Yet here you go.

I wonder if the author of the opinion prefers to remain anonymous, for professional or other reasons.

Read the subject matter and try to figure out why the author of such a lengthy (and careful) opinion might want to just be part of a panel opinion.

Rank speculation, of course.

Huerta v. City of Santa Ana (Cal. Ct. App. - Aug. 23, 2019)

It's undeniably tragic that three little girls were run and killed on Halloween night in 2014 as they crossed the street in a marked crosswalk.  The person who hit them fled the scene but was captured two days later.

The dissent says that the accident might have been caused by a tree that cast shadows that evening onto part of the crosswalk.  But that's the dissent.

The majority says there isn't a genuine issue of material fact; the shadows didn't cause the accident, which was instead caused by a hit-and-run driver who was going between 50 and 70 miles per hour -- on Halloween evening, no less -- on a street that had trick-and-treaters dressed in all black and a posted speed limit of 25 mph when kids were present (and 45 mph otherwise).

Just because you have an expert doesn't mean that you'll necessarily get to trial.  As here.

Nicholson v. Gutierrez (9th Cir. - Aug. 22, 2019)

The Ninth Circuit gives the plaintiffs in this case some good news and some bad news.

The good news is that they get to go to trial on the theory that they shouldn't have been detained in handcuffs for five hours.  Which is nice, since all they were doing was hanging around before school listening to rap music and getting on their school uniforms.

The bad news is that they don't get to seek relief for something far more serious:  Getting shot in the back by a police officer for no good reason.  Yes, it violated the Constitution.  Yes, a police officer should not shoot someone in the back, even if he has a plastic airsoft gun (with an orange tip) that's not being pointed at anyone as he and his friends hang out before school.  But the Ninth Circuit says that wasn't really clear before now, so there's qualified immunity.

So no relief for being shot.  But feel free to get damages for the five hours you spent in handcuffs.

Small "victory".

Ray v. County of Los Angeles (9th Cir. - Aug. 22, 2019)

How many cases do you see that decide whether a lawsuit is barred by the Eleventh Amendment?

Not many.  But you get one today.

Williams v. Superior Court (Cal. Ct. App. - Aug. 20, 2019)

I don't know.  Maybe.

A prosecutor makes a mistake.  There's a grand juror who finds out she's not going to get paid for her time, so she asks to be excused, and the prosecutor says okay and excuses her.

That's wrong.  The prosecutor can't do that.  Only a judge can.  (Of course, there's no judge there at the time, which is why the prosecutor thought it was his job.  Even though it's not.)

So the question is whether that requires dismissal of the indictment.

The Court of Appeal says it does, because having the prosecutor be the one who dismisses the grand juror makes it look like the prosecutor is controlling everything and the grand jury might accordingly be beholden to him.

Hmmm.  Maybe.  Though I suspect that's not what most of the grand jurors think.  At all.  The basic structure of the grand jury already gives the prosecutor a "lead" function, at least perceptually.  When you're dealing with what seems like a routine thing -- a hardship request -- I doubt whether the grand jurors think that having the prosecutor say "That's fine, you're excused" is anything more than a pure administrative function.  I'm not sure it really makes the grand jury think that the prosecutor is totally in charge, or akin to a judge.  Or at least not more than the preexisting fact that the prosecutor is the only key government official that the grand jury typically sees on any given day.

So, yeah, a mistake definitely transpired.  But it was an honest mistake, and one that I'm not certain really mattered at all.  Particularly since there were still 18 grand jurors left, and it only took 12 to return an indictment.

So maybe the grand jury was really swayed by what transpired here.

But I tend to doubt it.

Dryoff v. Ultimate Software Group (9th Cir. - Aug. 20, 2019)

Have a sports injury. Get addicted to opioids. Buy heroin online. Die when it's unknowingly laced with fentanyl.  Sue.  Lose.

A life in twenty words.

U.S. v. Shayota (9th Cir. - Aug. 19, 2019)

"Counterfeit Five-Hour Energy Bottles and the Fifth Amendment."

Available for your review here.  Courtesy of Judge O'Scannlain.

U.S. v. Cuevas-Lopez (9th Cir. - Aug. 19, 2019)

An Obama appointee writes an opinion that says that someone should be locked up longer for illegal reentry after deportation, and a Bush appointee dissents, saying that he should be locked up for less.

What a world.

People v. Sanchez (Cal. Ct. App. - Aug. 15, 2019)

A 33-year old (Adult) hangs out with a 13-year old (Kid). At 3 a.m., Adult and Kid have seven or eight French-kisses.  During the next three months, Adult and Kid -- now 14 -- engage in a ton of secretive text and instant messages, with Adult repeatedly expressing love for Kid, buying presents, etc. On the night before the Super Bowl, Kid sneaks out of the house and meets up with Adult, and they French kiss again, Adult kisses (and leaves a hickey) on Kid's bare breast, etc.  Kid eventually tells the story to a teacher, who reports the whole thing to police. Adult is criminally charged and convicted.

No prior criminal history for Adult. What's the appropriate sentence for Adult?

(A) 20 years in prison.
(B) 12 years in prison.
(C) 5 years in prison.
(D) 2 years in prison.
(E) Probation.

No actual sex.  But a fairly long history of grooming and molestation.  And Adult is 33 and Kid is 13 and 14.  Big gap.

Oh, and if it matters:  Kid is Adult's step-grandfather's niece.  So it's a familial thing.

So what's right?

Got your answer?

Now for the actual sentence that gets imposed in this case.  I suspect it's not the same as the choice you made.  The actual sentence is at one of the two extremes of the options I gave.  (A) or (E).

Which do you think?

Answer:  Probation.  Straight up.

Does it matter that Adult's a woman, and so is Kid?

You don't see many probation sentences these days when a 33-year old repeatedly molests a 13-year old extended family member.

In re NFL Sunday Ticket (9th Cir. - Aug. 13, 2019)

Do you watch DirecTV's NFL Sunday Ticket?  If so, today's Ninth Circuit decision may ultimately get you a check.  Way, way down the line.  Maybe.

The Ninth Circuit holds that the forced bundling of all the NFL games might violate the Sherman Act.  It's a split opinion, but at least for now, the district court's dismissal of the suit is reversed.  I'm confident there will be an en banc petition and a petition for certiorari.  Both non-frivolous.

But for now, the case is revived.

People v. Flores (Cal. Ct. App. - Aug. 12, 2019)

The distinctions that we draw in search and seizure jurisprudence are sometimes such fine ones.

The Supreme Court says that "headlong flight" plus "narcotics area" plus "has a bag" lets you search. At least at night.  But what if it's just a normal "flight" -- not really all that speedy?  What if it's only described as a "high crime" area?  What if it's during the day?  What if there's no bag?

Here, the Court of Appeal says "normal" flight plus "high crime area" plus "during the day" doesn't give you the right to search.

At a more abstract level, it seems like the police just wanted to swoop down on this one alleyway -- where gang members gathered -- and search everyone there. Maybe on the theory that they had probable cause just because there was, typically, a lot of crime there. Or maybe in the hope (and expectation, likely) that someone would run, and boom, all of the sudden, probable cause.

Which works from a policing standpoint. Less so for the citizens standing in the alleyway.

ClipperJet, Inc. v. Tyson (Cal. Ct. App. - Aug 7, 2019)

Here's proof that common sense sometimes prevails.

The usual rule is that removal to federal court is self-activating (e.g., you don't need permission of either tribunal) and that, post-removal, the state court lacks jurisdiction to do anything unless and until the case is remanded. Makes sense, and a well-known principle.

But, here, the defendant removes (frivolously), gets remanded, and then later removes again. And the second removal is even more frivolous than the first one.

Now, to be honest, what the state court should have done was to simply waited until the second remand. Which would have come fairly quickly. But, instead, since a motion to strike was fully briefed and in front of it for a hearing -- even though the second removal had transpired three days earlier -- the state court went ahead and decided it.

The Court of Appeal holds that's okay. There's an exception to the general rule. When the removal is totally frivolous, the state court's not deprived of jurisdiction. That'll stop people from, say, removing the case a thousand different times.

Just as the general rule makes sense, so does the exception.

Sheen v. Wells Fargo Bank (Cal. Ct. App. - Aug. 5, 2019)

Justice Wiley authors an extremely well-written (and relatively concise) opinion today. One that admittedly creates split in the Court of Appeal. 

As Justice Wiley frames the issue (and its proper resolution):

"Homeowners in mortgage trouble may try to negotiate a better deal. If mortgage modification negotiations fail and the borrower falls behind, the lender may foreclose, sell the house, and evict the homeowner. In a nutshell, this happened to borrower Kwang Sheen with his lender Wells Fargo Bank, N.A. (Wells). Sheen sued Wells in tort for negligent mortgage modification and other claims. The trial court sustained Wells’s demurrer, partly because Wells did not owe Sheen a duty in tort during contract negotiation.

The issue of whether a tort duty exists for mortgage modification has divided California courts for years. The California Supreme Court has yet to resolve this division. We must take sides.

We join with the old rule: no tort duty during contract negotiations. Our small contribution to this extensive debate is to use the general approach of the recent Supreme Court decision in Southern California Gas Leak Cases (2019) 7 Cal.5th 391 (Gas Leak Cases). The Gas Leak Cases decision was not about mortgage modifications, but it gives us guiding sources of law about whether to extend tort duties when, as here, there is no personal injury or property damage. Seeking wisdom, the Supreme Court considered decisions from other states as well as the Restatement of Torts. We do likewise.

These sources of law decisively weigh against extending tort duties into mortgage modification negotiations. The majority of other states are against it, and the most recent Restatement counsels against this extension because other bodies of law—breach of contract, negligent misrepresentation, promissory estoppel, fraud, and so forth—are better suited to handle contract negotiation issues. We therefore affirm."

That's an important, and recurring, issue. I don't have a definitive view as to what the right rule should be, though Justice Wiley's opinion does an outstanding job of arguing for the "old rule."

I'm nonetheless confident that whether you have a valid lawsuit shouldn't depend on the vagaries of which appellate panel you draw. So the California Supreme Court should grant review of this opinion and settle the matter once and for all.

Ranch at the Falls LLC v. O'Neal (Cal. Ct. App. - July 31, 2019)

A picture is sometimes worth a thousand words. So I appreciated the Court of Appeal's attachment to this opinion of a map -- in color, no less -- the describes the various properties, streets, and alleged easements.

Unfortunately, at least to me, the map is only worth around fifty or so words. In part because the big blue line ("Fern Ann Falls Road") doesn't seem to connect to the big green line (the alleged easement route) like it seems like it should. Unless that little blue, umarked line, which looks like a stream or a lot line, is an actual road that the opinion doesn't discuss.

Still, at least there's a map. Even if I can't 100% follow it.

We appreciate the effort, Justice Grimes.

Lee v. Department of Parks and Recreation (Cal. Ct. App. - Aug. 1, 2019)

In a world with more internet access I'd do a quick study, but for now, I'll just pose the question:

When an opinion begins by saying that a plaintiff "injured herself" (or himself) in a particular accident, does that tend to suggest that the Court of Appeal is going to find for the defendant?

That's the sense I got when reading the first sentence of this opinion.  ("Plaintiff Michele Lee injured herself on a stairway in the Bootjack Campground within Mt. Tamalpais State Park . . . .")  And it turned out to be right; the grant of summary judgment in favor of the defendant was affirmed.  (Though the Court of Appeal did reverse the fee award against the plaintiff.)

Saying that someone "injured herself" suggests that the fault was with the plaintiff.  "Was injured" is more neutral. I suspect that use of the former may give some insight into the mindset of the author.