Thursday, January 30, 2020

Murder, Inc. (Cal. Ct. App. - Jan. 30, 2020)

We started out the morning with a case of kidnapping and murder.  That's not especially surprising, since it's a death penalty case, and those generate decisions by the California Supreme Court, which publishes its opinions in the morning.  So it's not particularly uncommon to begin one's workday by reading about someone who's been killed.  Sad, but true.

Then, at around noon today, the Court of Appeal posted numerous published opinions at once.  On a personal level, that's a pain.  I try to read them right when they come out.  But on Tuesdays and Thursdays, I teach class:  an afternoon class, even (California Civil Procedure).  Which means I'm prepping for the thing at the time, and yet, suddenly, a half dozen or so cases to read.  The benefit of which is that I obtain a ready-made excuse to stop preparing for class and to do something else.  But I can't cancel or shortshrift my class either.  (Another sad, but true, reality.)

So I read all those cases.  And am struck by just how much killing is at issue.  Indeed, each of the last three cases -- all unrelated -- are like the first from today, and all involve someone being killed.  The last case of the day (thus far) involves someone convicted of first degree murder for stabbing to death someone who evicted his wife from her home.  The case immediately before that involves someone convicted of second degree murder for killing someone who "provided him with his daily needs in exchange for sex" by "obliterat[ing]" his face and head with twenty or so blows from a hammer (and who, for good measure, subsequently joined a white supremacist gang in prison).  And then the case right before that one involves yet another guy originally charged with murder for killing someone but who ultimately pled guilty to the lesser charge of voluntary manslaughter.

In short:  Lots of killing.

People v. Hoyt (Cal. Supreme Ct. - Jan. 30, 2020)

It's not as exciting as the movie, to be sure.  But here's the California Supreme Court's opinion about the sentence handed down to one of the participants in the killing that led to Alpha Dog.  It involves the only person sentenced to death for that murder, and the only person involved (other than the one who fled to Brazil) in that killing who's still in prison.

Spoiler alert.  The death sentence is unanimously affirmed.

Wednesday, January 29, 2020

People v. Adams (Cal. Ct. App. - Jan. 29, 2020)

The California Supreme Court has already granted review to decide whether restitution orders are required to assess whether or not the defendant has the ability to pay.  Meanwhile, since such orders are routine, appeals continue raise this issue, and the already-split Courts of Appeal accordingly get to deepen the split by percolating the issue further.

Today's opinion is but the latest.  I've talked about other cases (e.g., here and here) that raise this same issue.  We're now at the point where very little additional ink, virtual or otherwise, needs to be spilled, as both viewpoints have already been expansively articulated.  So, here, all that's necessary is a four-and-a-half (double spaced) majority opinion that says that it disagrees with DueƱas, and a dissent that consists of a single paragraph that goes the other way.

Which seems right.  Of course defendant brought the appeal.  Of course the Attorney General resisted it.  Ultimately the California Supreme Court would decide.

No need to do much more than go on record as to which way the panel thinks is right.

Monday, January 27, 2020

Thimon v. City of Newark (Cal. Ct. App. - Jan. 27, 2020)

It's a testament to my particular location in California that I was thrown off by the caption of this opinion.

The case is about a tragic car-versus-pedestrian accident.  Plaintiff had no chance of winning the lawsuit, IMHO:  the City of Newark obtained summary judgment because the allegedly "negligently designed" street at issue was just like any other number of streets in California, and the nature of the accident (sun glare in the eyes of the driver) was just like any other number of days in California.

So plaintiff loses below as well as on appeal.  Big damages, no liability.  Waste of time and money for everyone involved to bring the lawsuit.  Notwithstanding the tragic circumstances, which we all (of course) wish had never transpired.

What struck me about the caption was the identity of the defendant:  the City of Newark.  Maybe I've watched too many episodes of The Sopranos.  Maybe I've flown into EWR too many times (e.g., last week).  But I immediately thought about the one in New Jersey.  And was wondering why such a suit was brought in California.

Of course, I recognized that there might be a city in California named "Newark" as well.  I just didn't know where.

And thereby betrayed myself as a longtime resident of Southern California.

Newark is in the Bay area.  Right across the Dumbarton bridge from East Palo Alto.  I'm confident that everyone up there knows about the place, even though it's small.  But not me.  Never been there before.  Never even remember hearing about it.

Sort of looks like the other -- larger -- "Newark" to me, too.  On the water (ish).  Small (ish) but extant.  Not in a fancy area or with fancy places, I suspect.

But definitely in California.  Not New Jersey.

Now I know.  Won't forget.

In re J.M. (Cal. Ct. App. - Jan. 24, 2020)

On the one hand, this is a very depressing set of facts:

"J.M. was born in 2010. He suffered an accident at home when he was 10 months old, which rendered him permanently disabled. Since the accident J.M. has resided at the Children’s Hospital of Northern California, a rehabilitation facility formerly operated as The Children’s Recovery Center of Northern California. He suffers from anoxic brain injury, epilepsy, developmental delays, and bone disorders. He has gastrostomy and tracheal tubes to help him eat and breathe, and he will need them indefinitely. He is immobile, will never walk, and is fully dependent on others for care. He is nonverbal, but oriented to those with whom he interacts, communicating through eye gazes and facial expressions."

So he's a child with a serious, life-long disability, and who's lived in a hospital for virtually his entire existence.  And don't think that he's got particularly doting parents, either.  "J.M.’s father had never visited him, and his mother’s visits were infrequent. J.M. was taken into protective custody while continuing to reside at the hospital, and the Department filed a petition alleging that he was subject to the juvenile court’s jurisdiction because his parents were unwilling and/or unable to care for him upon discharge, and that both parents had a history of substance abuse."

On the other hand, there's hope.  Not for an eventual recovery.  But at least for a life, with a loving caretaker:

"The Department recommended a permanent plan of legal guardianship with J.M.’s maternal grandmother, who visited J.M. regularly and with whom J.M. had formed a positive emotional bond. J.M.’s two siblings, close to him in age, were also in the grandmother’s care, and she was committed to maintaining the sibling relationships. The social worker’s report stated that J.M.’s grandmother sought legal guardianship because she understood her grandson’s specialized care requirements and his emotional need for a familial connection—a need that her daughter (J.M.’s mother), who struggled with sobriety, was unable to meet. The grandmother understood the responsibilities of a legal guardianship; she was committed to overseeing J.M.’s care and providing the 'continuous emotional support and the family connection that the department and/or any other institution are not able to afford him.'"

That's nice.  You've got a loving, biologically related person, plus your siblings.  That's a family.  Even with all the limitations discussed above.

So what's the problem?

It's not that the grandmother has a criminal conviction or anything like that.  It's that, given the child's serious disabilities, and the fact that he's been in the hospital for (essentially) life, the child's not able to come and actually live with the grandmother.  He'll stay in the hospital.  But the grandmother will nonetheless be his legal guardian, and continue to visit, bring his siblings, make medical decisions on his behalf, etc.

That's fine with the Department of Family and Children's Services.  But it's not fine with J.M.'s court-appointed counsel.  Who argue against placement with the grandmother.

Typically, court-appointed attorneys in these types of cases are doing great (and underappreciated) work.  But, here, you wonder why counsel has elected to make this decision.  The argument is that placement with the grandmother will stop someone else from being selected to care for him, and that such an alternative might be willing and able to care for him in their home (rather than continuing to live in the hospital).

But, with respect, how realistic is that?  It's been a decade since his accident.  I see no evidence at all that anyone during that period (other than the grandmother) has been willing to step up and care for the child.  And if you're not getting adopted as a baby, what are the chances that someone's going to adopt a kid with serious disabilities once he's double digits?  To me, I think the Department has it more than right.  It'd of course be better if we could find someone who could care for the child out of the hospital (if that's even possible).  But, realistically, that's unlikely likely to happen.  And we've got a loving biological relative and the child's siblings there and available for him.  That's more than we have in many cases.  And it's a lot.  Let the grandmother be his guardian.

Which is ultimately what the trial court and Court of Appeal elect.

I understand (and appreciate) why we appoint counsel for minors who, as here, can't make their own decisions.  But, here, it looks to me like counsel's choice seems like the wrong one.  I'm happy that the case came out this way.  Notwithstanding counsel's well-argued contentions to the contrary.

Friday, January 24, 2020

U.S. v. Cooley (9th Cir. - Jan. 24, 2020)

Two different perspectives on this panel opinion from last year present themselves today.

The first comes from Judge Collins (joined by Judges Bea, Bennett and Bress), dissenting from the denial of rehearing en banc:

"The panel’s extraordinary decision in this case directly contravenes long-established Ninth Circuit and Supreme Court precedent, disregards contrary authority from other state and federal appellate courts, and threatens to seriously undermine the ability of Indian tribes to ensure public safety for the hundreds of thousands of persons who live on reservations within the Ninth Circuit. I respectfully dissent from our failure to rehear this case en banc."

The other comes from Judge Berzon (joined by Judge Hurwitz):

"Even within the questionable genre of dissents from denial of rehearing en banc, see Martin v. City of Boise, 920 F.3d 584, 588 (9th Cir. 2019) (Berzon, J., concurring in denial of rehearing en banc), Judge Collins’s dissent to the denial of rehearing (“dissent”) is an outlier. It misrepresents the legal context of this case and wildly exaggerates the purported consequences of the panel opinion."

The Ninth Circuit is increasingly fractured.  I suspect you'll see more of this sort of thing in the years ahead.

Thursday, January 23, 2020

People v. Partee (Cal. Supreme Ct. - Jan. 23, 2020)

You're a witness and are given immunity.  But, fearing for your life, you still don't want to testify.  It's a gang case, and a murder trial, and you've allegedly been directly threatened by gang associates.

Multiple choice.  If you continue to refuse to testify, that refusal to testify constitutes:

(A) Nothing.
(B) Contempt.
(C) Accessory to murder.
(D) Both (B) and (C).

The Court of Appeal held that the correct answer was (D).  The California Supreme Court says that's the wrong answer.  Unanimously.  It's (B).

Good to know.  And seems exactly right to me.  It's contempt, so you can be jailed, both coercively (until you testify) and retrospectively (as punishment).  But not testifying isn't an "affirmative" act to help out the alleged criminals that makes you guilty of being an accessory.  If only because, if it is, then everything is an affirmative act.  For these reasons, the California Supreme Court "decline[s] to 'place() California on the extreme outer edge of jurisdictions — indeed, in a group unto itself — concerning the reach of accessory after the fact punishment.'"

Two other points about today's opinion.

First, I've rarely seen the California Supreme Court quote so much from the dissenting opinion in the Court of Appeal.  That's a pretty positive endorsement of Justice Baker.  Much to the chagrin, I'd bet, of those who strongly opposed his appointment to the Court of Appeal.

Second, I know that existing doctrine makes it permissible -- and it's entirely irrelevant to the Court's holding -- but do the underlying facts of the police interrogation here make you feel at least a little uncomfortable?  Here's what transpired:

"On August 31, 2006, when Partee was 21 years old, she reported a rental car stolen. The rental company directed her to file a claim with the Hawthorne Police Department. Partee did so. When she arrived at the Hawthorne police station, detectives from the Los Angeles Police Department met her and drove her to the office of homicide detective John Skaggs. . . .

Detective Skaggs conducted an interview with Partee, which he surreptitiously recorded. In the course of the interview, he told Partee, “[Y]ou’re obligated to be completely truthful, even if it hurts. . . . If you’re caught lying in some way, I would associate you directly with the murder. . . . If you lie to me, this much, I will associate you to the commission of that crime, okay.” He also said, “What is said in he[re] is between you and I. . . . Let’s get that straight now.” At the close of the interview, Detective Skaggs stated, “You said, ‘All this was off the record.’ Okay. And I told you, ‘Yes.’ My question is, and it’s not going to happen, but if the District Attorney or somebody said, ‘I need you to come and tell your story to court,’ how would you feel?” Partee replied that she would not testify . . . .

Despite Detective Skaggs’s representation to Partee that “it’s not going to happen,” the district attorney did in fact subpoena Partee to testify."

I know the police want to find out what went down.  I do too.  But recording a witness without telling them you're doing it, while expressly telling them that what's said is totally "off the record," seems at least to some degree morally wrong.  Even if you're okay with lying to suspects, lying to witnesses (and telling them that something's off the record when it most definitely is not) seems different to me.

And, practically, once witnesses discover that the police are permitted to (1) lie to them, (2) threaten them, (3) secretly record them, and (4) tell them things are off the record when they're not, I suspect they'll be much less willing to voluntarily assist the authorities.  Which is bad for everyone.

Again, not a part of today's holding.  But the facts are nonetheless mentioned in the case, so I thought I'd pass them along.

People v. Leon (Cal. Supreme Ct. - Jan. 23, 2020)

The good news for Mr. Leon after today's opinion is that the restitution order entered against him was reduced from $10,000 to $200.

The bad news for him is that his death sentence was unanimously affirmed.

Wednesday, January 22, 2020

In Re Duval (Cal. Ct. App. - Jan. 22, 2020)

This is certainly embarrassing for the Orange County District Attorney's office.

Jeffrey Duval had some methamphetamine and some other bad stuff, and entered a guilty pleas with an agreed-upon two year jail sentence.  The caveat being that he had to make sure to show up at his sentencing hearing.

Which he didn't.  So on that day, instead of the two-year deal, he gets sentenced in absentia to over nine and a half years in prison.  At that hearing, Duval's counsel apparently did nothing; didn't object to the sentence, didn't ask for a hearing on whether Duval was deliberately absent or not, and didn't present any evidence as to why his client wasn't there.

The very next day, Duval shows up, and is taken into custody.  The day after, the trial court recalled the nine-plus year sentence and sentenced Duval to five years.

So Duval gets three extra years in jail for being a day late to his sentencing.  And we still don't know why he missed that initial day.

Duval files various habeas petitions claiming that his counsel was ineffective for not doing anything at the initial hearing, and although the lower courts aren't receptive, the California Supreme Court is, and orders an OSC.  On remand, the hearing happens, and yet, the Orange County District Attorney's Office shows up at the hearing, but doesn't file anything.  Doesn't respond to the OSC at all.  Which is unusual, since the California Supreme Court had expressly called for "an order directing [the People] to show cause before the Orange County Superior Court why petitioner is not entitled to the relief requested.”  And yet the People did not, in fact, show such cause.

So at the hearing, the trial court says:  "Well, you didn't respond at all.  We call that a default.  So I'm going to sentence the guy to four years.  Which is how long he's been in jail at this point.  Yeah, that's still two years longer than the agreed-upon two-year deal.  But whatchagonnado?  It's at close as we can get to justice at this point."  (I'm paraphrasing.  Clearly.)

At which point the District Attorney appeals.

Resulting in today's published opinion.

Justice Thompson's opinion isn't mean or anything.  But it's nonetheless a twelve-page, published slapdown.  Basically saying:  "Uh, guy.  Habeas petitions and OSCs are like civil complaints.  You've got to respond.  Otherwise we take your default, on the assumption you agree that relief should be granted.  It's a pretty basic concept.  So your appeal regarding what transpired below is very much not well-taken."  (Paraphrasing, again.)

You might have thought that the Orange County District Attorney's Office would have just taken their lumps on this one below rather than continuing to press the matter and generate a published opinion.  Particularly since the relief granted was hardly outrageous; the District Attorney thought a two-year sentence was fine when they negotiated the deal, and the guy actually did four, all for being a day late.  I'd have thought that, plus the errors by the DA below, would have been more than sufficient to call it a day.

But apparently not.

Oh well.  Case over now.

Albeit with a permanent record for everyone to see of what's probably not the OC DA's especially finest hour.

People v. Yanez (Cal. Ct. App. - Jan. 21, 2020)

Sometimes you don't know how something ends until it actually ends.

I'm reading along about the facts of this case and they progress in a way that's not totally unusual but not exactly usual either.  A guy (Gilbert) and his brother (Angel) are hanging out on the balcony of Angel's apartment when someone comes up and shouts up to them from the street below, asking if they know a guy named "Stoner" (presumably a nickname, and likely an apt one at that).  Angel says they haven't seen him.  So far, not weird at all.

Then one of the guys below asks Angel where he was from.  Now, I've read enough cases to know that's a gang challenge; he wants to know what gang he's in.  Why the guy below cares enough about the preceding -- utterly innocuous -- verbal interactions with Angel is beyond me.  But, okay, there's a challenge.

Angel responds:  "I don't bang."  I don't know how many cases I've seen in which this is the exact same response.  Dozens at least.  Maybe over a hundred.  Virtually inevitably, if you read that in an opinion, you know that guy's going to get shot.

Do most people who say "I don't bang" get shot?  No.  Not at all.  But if you're reading this in the pages of the California Appellate Reports, almost always, someone got shot or stabbed, and it is -- ironically -- the guy who's not in the gang, and who forthrightly says so, who's nonetheless getting injured.  It's depressing, but true.

So I wouldn't have been surprised if the next line of the opinion was that the guy below took out a gun and shot up at Angel, killing him.

Not to be, however.

Instead, what actually happens is a little weirder.  (Not that shooting a random guy for saying he's not in a gang wouldn't be weird.  It would be weird.  It just wouldn't necessarily be unusual.)

Angel's brother instead gets into the mix.  Having just heard his brother respond that he's not in a gang, and feeling offended at the underlying challenge to his kin, the brother (Gilbert) interjects himself into the conversation, saying: “‘Wait a minute’ . . . ‘[w]hy are you coming over here and saying where are you from?’”  Prompting the guy down below to say that he's "Downer" from "JT".  (I presume Downer's a nickname, and don't know offhand the reference to "JT," but presume it's a particular gang, and don't know which one.)

Again, at this point, I wouldn't be surprised if maybe Downer shoots Gilbert from below.  Or maybe even Gilbert shoots Downer.  Maybe Downer is angry and shoots the brother (Angel).  Possibilities abound.

But, no.  There's no shooting up and/or down from the balcony.  Nor do Downer and Gilbert continue their scintillating discourse.

Rather, Gilbert (the brother) proceeds to walk downstairs to confront Downer personally.  Now, me, I'm not particularly interested in escalating a fight with a known gang member.  Much less one who's issued a challenge below, presuming (as I do) that he wouldn't have done so unless armed.

But hey, that's me.  Gilbert's got other ideas.

So Gilbert goes downstairs, and there continues his verbal sparring with Downer.

So what I then expected was for Gilbert to promptly be shot.


It's Gilbert who again escalates the conflict.  After continuing verbal disagreements, Gilbert then tells Downer:  "Let’s get down then.”  To which Downer responds:  "Nah, not with all of these kids here."  So Downer's apparently deescalating the thing.

At which point Gilbert pulls out a gun.

Geeze.  Is this really necessary?!  Why not just stay up on the balcony?  Why get things to this point?  Particularly since you've already made your point:  You told the other guy that you're ready to get it on, and he backed down.  You've won.  Declare victory and go back upstairs.  No need to pull out the weapon.

So now I'm thinking Downer's getting shot.  The moral of the story being:  "Don't issue gang challenges, even to a guy on a balcony who's not in a gang.  Because his brother might shoot you."

But no.  Downer deescalates things again.  He says "What the fuck is wrong with you?"

Meanwhile, not surprisingly, people in the apartment complex are starting to pull their children indoors.  Because there's a guy with a gun arguing with a gang member outside.  This is not good.

But guess what?  Downer doesn't get shot.  At least at this time.  (I'm reminded of Peter Falk in The Princess Bride, who similarly explained to Fred Savage that Princess Buttercup was not eaten by the shrieking eels "at this time." [At 1:11 of the clip]  It's a caveat.  Maybe she gets eaten later.  Maybe not.  TBD.  Ditto for Downer.)

Eventually, the confrontation ends, and Gilbert goes back upstairs and returns to his brother's apartment, and Downer departs.  Which is surprising.  Because I know for a fact that someone's getting shot or stabbed or something because this is a criminal case with a criminal conviction somewhere; indeed, one that results in a sentence of 60 to life.

Okay, so does this set the stage for Gilbert eventually getting shot in a future gang fight?  Albert?  Downer?  The other guy with Downer?  Are there new people to be determined in this story?  I'm telling you right now that in most opinions, someone's already shot and/or killed by this point.

Nope.  Back at our tale, instead, Gilbert's in the apartment, texting messages to his friend, asking him if he knows a "Downer" from "JT" and trying to find out the identity of the aggressor.  Telling his friend that “I pulled out my strap ‘cause I didn’t know who it was” and explaining that "if anyone has beef to get at me on the street, Polfast.”

(Parenthetically:  What?!  I've read a ton of opinions.  I now know lots of slang.  WTF does "Polfast" mean?!  I've never seen that word before.  And can't find it.  Anywhere.  The opinion never tries to explain what it means.  Not that it's central to the story; but, still.  I'm utterly at a loss to explain what Gilbert's trying to say by the word "Polfast".  And Google is no help at all, as the only reference I can find to this term is as a type of Dutch hybrid tomato.  Which I'm pretty sure is not to which Gilbert is attempting to refer.)

Tomatoes aside, so who gets killed?!  Gilbert eventually leaves the building and walks to the parking lot to get (I presume) to his car, and maybe now that the whole "apartment thing" has ended we're going to find out in the opinion about the gang fight three weeks later in retaliation or whatever the crazy thing that happens as the eventual consequence of this initial conversation.

Nope.  Don't have to wait.  "Downer" pops out of the shadeows, says "Hey," and proceeds to shoot Gilbert dead with five shots to the back at close range.

Oh.  So that's how it turns out.

Okay, then.

Ending perhaps not massively unusual.  (Gang member shoots other guy -- maybe gang member, maybe not, but definitely person with a gun himself -- dead in an apartment complex.)  Definitely seen that before.

Just not in this particular context.  Or with this many twists and turns.

Tuesday, January 21, 2020

Cook v. Kernan (9th Cir. - Jan. 21, 2020)

There's only one Ninth Circuit opinion published today.  But it's an opinion that results, I suspect, directly from the institutional pre-argument structures of Ninth Circuit chambers.

It was a death penalty case.  Notice the past tense.  The guy was sentenced to death in 1994.  But a decade or so later, he got his sentenced reduced to LWOP on state habeas review because he was intellectually disabled and, under then-recent Supreme Court precedent, we don't execute people like that.

So then he files his federal habeas petition, which continues in federal court the challenges to his conviction that he had filed in state court and that the state court rejected.  It's an AEDPA case, so the federal court grants a degree of deference to the state court's conclusions in this regard.  The primary issue is whether the state court correctly concluded that the defendant validly waived his rights under Miranda.

(1) One judge on the panel, Randy Smith, concludes that the state court reasonably concluded that the waiver was valid, and thus that relief should be denied.  (2) One other judge on the panel, Callahan, agrees with Judge Smith that the waiver was valid, and thus that relief should be denied, but also believes that, independently, even if the waiver wasn't valid, it would be reasonable to conclude that the error was harmless, and thus relief denied on that separate basis as well.  (To be clear:  I mention Judge Smith's first name because there are two "Smith's" on the Ninth Circuit, but there's only one "Callahan," which is why I don't mention her first name.  No disrespect intended.)  (3) The last judge on the panel, Murguia, disagrees with both of these conclusions, and accordingly believes that habeas relief should be granted.

Given this lineup, on first principles, the "normal" way you might think the respective opinions should be issued are for (1) Judge Smith to author the majority opinion, (2) Judge Callahan to join the majority opinion in full, but also to file a concurrence making her point about any arguable error being harmless in any event, and (3) Judge Murguia to dissent.

But, instead, Judge Callahan authors the majority opinion and also files a separate concurrence to her own opinion.  (Judge Murguia, obviously, dissents.)  Why adopt this structure rather than the more traditional (and, perhaps, straightforward) lineup?

I suspect it's because of which judge was responsible for the bench memo.

I would bet that Judge Callahan's chambers was in charge of preparing the pre-argument bench memoradum for the panel, which described the facts of the case, the arguments, and the relevant doctrinal principles.  Since Judge Callahan's chambers wrote that, and since that memorandum ultimately became (at least in structure) the "backbone" of the majority opinion that rejected relief, she was the one assigned to author the majority opinion.  Which in turn meant that since she was not able to get Judge Smith on board for holding that any error was harmless, she then needed to concur to her own opinion in order to express this singularly-held point.  (We don't know whether Judge Smith's decided not to join the harmless error part after argument or, instead, only after the draft majority opinion was circulated, but either way, the result was the same.)

All of which would have been unnecessary if Judge Smith -- who held the narrowest view of the case shared by a majority of the panel -- had been the one selected to author the majority opinion.  But this was not to be.  A reality that I suspect would have been different had Judge Smith's chambers to have been the one to write the original bench memo.

All speculation on my part, of course.  But speculation that I nonetheless believe is probably right.

Friday, January 17, 2020

Juliana v. United States (9th Cir. - Jan. 17, 2020)

You write some opinions directed to the parties and their counsel.  You write others directed to lawyers and other legally-interested people.  But you write some opinions addressed to the general public and, perhaps, future generations.

There's no shortage of lofty expressions in either the majority opinion or the dissent.  Perhaps not surprisingly, given the topic.

First off, Judge Hurwitz's take for the majority:

"In the mid-1960s, a popular song warned that we were “on the eve of destruction.”1 The plaintiffs in this case have presented compelling evidence that climate change has brought that eve nearer. A substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse. 

The plaintiffs claim that the government has violated their constitutional rights, including a claimed right under the Due Process Clause of the Fifth Amendment to a “climate system capable of sustaining human life.” The central issue before us is whether, even assuming such a broad constitutional right exists, an Article III court can provide the plaintiffs the redress they seek—an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Reluctantly, we conclude that such relief is beyond our constitutional power. Rather, the plaintiffs’ impressive case for redress must be presented to the political branches of government."

And, with similar, but more alarming, sentiment, the dissent by Judge Staton, sitting by designation from the Central District of California:

"In these proceedings, the government accepts as fact that the United States has reached a tipping point crying out for a concerted response—yet presses ahead toward calamity. It is as if an asteroid were barreling toward Earth and the government decided to shut down our only defenses. Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.

My colleagues throw up their hands, concluding that this case presents nothing fit for the Judiciary. On a fundamental point, we agree: No case can singlehandedly prevent the catastrophic effects of climate change predicted by the government and scientists. But a federal court need not manage all of the delicate foreign relations and regulatory minutiae implicated by climate change to offer real relief, and the mere fact that this suit cannot alone halt climate change does not mean that it presents no claim suitable for judicial resolution.

Plaintiffs bring suit to enforce the most basic structural principle embedded in our system of ordered liberty: that the Constitution does not condone the Nation’s willful destruction. So viewed, plaintiffs’ claims adhere to a judicially administrable standard. And considering plaintiffs seek no less than to forestall the Nation’s demise, even a partial and temporary reprieve would constitute meaningful redress. Such relief, much like the desegregation orders and statewide prison injunctions the Supreme Court has sanctioned, would vindicate plaintiffs’ constitutional rights without exceeding the Judiciary’s province. For these reasons, I respectfully dissent."

Important principles -- and issues -- all around.

Thursday, January 16, 2020

Sachs v. Sachs (Cal. Ct. App. - Jan. 8, 2020)

Sometimes to recite the facts of the case is sufficient to explain why it should come out precisely the way it did in the trial court.

Like here.

"Probate Code section 21135 provides that transfers of property to a person during the transferor’s lifetime will be treated as an at death transfer to the person under certain conditions. All of these conditions require a writing. Here we decide that the transferor’s record of amounts he periodically distributed to his children is a writing that satisfies the requirements of section 21135. . . .

David L. Sachs had two children, Benita and Avram.2 David established a trust in 1980 when Benita was 20 years old and Avram was 12. The trust provided for small distributions to other beneficiaries, but most of the trust corpus would be distributed to Benita and Avram equally on David’s death. David was the original trustee.

In 1989 David began to keep track of money distributed to his children on papers he referred to as the “Permanent Record.” When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record.

In June 2013 David began to experience cognitive problems due to a stroke. He hired Ronda Landrum as his bookkeeper to help manage his finances. At David’s instruction Landrum continued to make distributions to Avram and Benita. Landrum said David was adamant that she keep a record of the distributions. After a distribution was made David would often confirm that the distribution was on the list. Landrum kept a list for each child in the form of an electronic spreadsheet. David told Landrum on more than one occasion that keeping the list was important so that payments made to his children could be deducted from their respective inheritances.

In October 2013 David resigned as trustee and Benita became the successor trustee. Following her appointment, she found the Permanent Record among her father’s papers. The record consists of a separate file for each child. The entries were made entirely in David’s handwriting. The papers list the dates and the amounts distributed beginning when each child attained age 30. The entries were not all made with the same pen, and the papers were of different types and ages.

In September 2014 Landrum advised the children that expenditures for David’s residential care and payments to the children were depleting the trust at a rapid rate. Avram continued to ask Benita for distributions from the trust. Benita’s resistance caused friction between the siblings. In a series of emails Avram sought to assure Benita by repeatedly stating that the distributions would go on his record. One of the e-mails acknowledged that previous distributions made by David went on his record.

In October 2015 Benita learned that Avram was contending the Permanent Record did not exist or that he was not bound by it. By then, David’s mental condition had deteriorated to such an extent that he could not be asked about his intention in creating the Permanent Record.

After David’s death, Benita filed this petition for instructions to equalize the distribution of assets from the trust. She claimed that the disparity in lifetime distributions in favor of Avram should be deducted from Avram’s distributive share of the trust. The trial court granted the petition, and found that Avram received $451,027 more than Benita in lifetime distributions."

That's all I needed to hear.  I read the rest of the opinion, which examines at length why the trial court got it exactly right under the law.  But I was already there once I read the facts.  This seems pretty much the paradigmatic case of where an equalization is in order.  Why (Avram) Sachs and his counsel thought it was worth the money to appeal is fairly beyond me.  The facts alone made this a laydown.

Wednesday, January 15, 2020

Ellis v. Harrison (9th Cir. - Jan. 15, 2020)

You can tell a lot about the particular constituents of the federal legal justice system by today's en banc opinion.

It's a habeas case that originally progresses in the usual way.  Defendant's convicted at trial, his state appeals were unsuccessful, his state habeas petition gets him nowhere, and the federal district court denies his federal habeas petition.  Par for the course.

But then things get funky.

In the Ninth Circuit, the panel affirms.  But all three panel members join a separate concurrence to the per curiam disposition.  Every one of them says they'd vote to reverse if they weren't bound by an en banc opinion from 2001.  And the issue here is a sensitive one; whether a criminal defendant can get habeas relief when he can prove -- as defendant does in spades here -- that his defense counsel was a stone cold racist.  The concurrence was also a sensitive and very personal one, a memorable portion of which expressed the following:

"Lawyers today look very different than they did in 1991, when Ellis was tried. Within a generation, diversity among legal practitioners has markedly increased. On appeal in our court, of the three judges and two advocates at oral argument, four were people of color. These changes matter. Minority lawyers’ greater representation on the bar has led to a growing acknowledgment and intolerance of racial bias in the practice of law. But it has not ended racism, both subtle and overt. . . .

When examining the reasonableness of counsel’s performance, we extend considerable deference to strategic choices. This deference is predicated on the assumption that counsel is acting in the client’s best interest. For an attorney as deeply racist as Ames, that assumption is unfounded. It makes no difference that Ellis was unaware of his counsel’s beliefs. The deleterious effect of such racism on the outcome is usually impossible to prove and, under these circumstances, we should presume prejudice."

That was Judges Nguyen, Hawkins and Tashima.  And tells you something about them.

Not surprisingly, the Ninth Circuit takes the case en banc.  At which point the case takes several interesting turns that again tells us something about the people involved.

It's a high-profile case about racism in the criminal defense system.  All along the way, the California Attorney General's Office has been doing what that office does in virtually every single case:  defend the validity of the conviction.

But, perhaps -- and I'm just speculating here, but I think I'm right -- Xavier Becerra has learned a thing or two from Kamala Harris' contemporary presidential bid.  Which is that people like it when you're a legal officer of high standing, but simultaneously, that doing stuff that left-of-center voters don't like can hurt you in a primary.  And this is one of those things that could definitely come back to haunt you, since very few people like defending racists and convictions arising therefrom.

So, for the first time ever in this thirty-year old case, the Attorney General's Office now confesses error.  Something it hadn't done even at the federal appellate stage of the process a year earlier.  An event that tells you something about Xavier Becerra.

So now the en banc court has a confession of error, and as a result, not surprisingly, issues a very brief per curiam opinion that reverses the dismissal of the habeas petition based on this concession.

But there's still more to come.

Judges Nguyen, Thomas and Murguia aren't happy with not explaining why the case comes out the way it does.  The facts, the legal principles, etc.  So they begin their separate concurrence by saying: 

"I write separately because I strongly disagree with the majority’s refusal to explain its decision, particularly in the face of a vigorous dissent. No settlement is on the books. The State of California now agrees with Ellis’s interpretation of the law but does not agree to grant him the new trial he seeks. The parties have asked us, and we are obligated, to decide whether Ellis received the effective assistance of counsel guaranteed by the Sixth Amendment. To do so without a reasoned analysis in a case like this is a disservice to the parties, the victims’ families, and the public."

That tells you something about them.  At least in this particular context.

Judges Watford, Hawkins, Wardlaw, Hurwitz, and Owens also join a separate concurrence.  But theirs is very brief one.  They just want to deal with the dissent's legal contention, which argues that the confession of error shouldn't matter.  So their concurrence states, in full:

"I write separately to respond to the dissent’s contention that the court’s order granting relief is forbidden by 28 U.S.C. § 2254(d). That provision applies only when a claim has been “adjudicated on the merits” in state court. Id. It does not apply here because the claim on which the court grants relief was never adjudicated on the merits in state court.

As the district court correctly determined, Ezzard Ellis raised three distinct ineffective assistance of counsel claims in his federal habeas corpus petition: one based on Strickland v. Washington, 466 U.S. 668 (1984); another based on Cuyler v. Sullivan, 446 U.S. 335 (1980); and a third based on United States v. Cronic, 466 U.S. 648 (1984). Ellis never raised his Cronic claim in state court, and thus the state courts never adjudicated that claim on the merits. While Ellis’ failure to raise his Cronic claim in state court would ordinarily render the claim unexhausted, the State has waived the exhaustion requirement here, as it is permitted to do. See 28 U.S.C. § 2254(b)(3). As a result, § 2254(d) poses no barrier to the court’s granting relief on Ellis’ Cronic claim."

So that legally-focused concurrence tells you something about them.  Again, at least in this context.

Judge Callahan dissents.  She insists that the habeas petition should remain dismissed even though the state has waived the exhaustion claim and confessed error.  Her dissent is 18 single-spaced pages long, and no one else on the panel joins it.  Her dissent concludes with the following:

"The abhorrently racist statements of Ames, as evidenced by the record, makes this a difficult case. Ames was an offensive and abusive human being, even by the accounts of those who knew him best. To any extent that Ames’ racism rendered his representation of Ellis at trial prejudicially deficient, we certainly have an obligation under the Sixth Amendment to correct it. But where, as here, a habeas petitioner fails to show that his trial counsel’s racist beliefs adversely affected his performance at trial, as required under Sullivan—much less that it created a reasonable probability of a different result, as required under Strickland—we are bound under AEDPA and the Sixth Amendment to deny Ellis’ request for habeas relief."

That tells you something about her.

That leaves the rest of the panel.  Which consists entirely of Judges Bybee and Milan Smith.  They simply join the per curiam opinion, and don't otherwise explain their result.  Which, again, tells you something about them, at least (again) in this context.

So it's an interesting en banc opinion that gives a fair piece of insight into many of the individual participants in the process.

Tuesday, January 14, 2020

Altayar v. Barr (9th Cir. - Jan. 14, 2020)

I wonder if this would play out any differently today.

Bystander is at work talking with a female friend outside the shop at which he works.  Grabber walks by and nonconsensually touches the female friend on the buttocks.  Bystander is (not surprisingly) offended, calls Grabber a name, and then Grabber punches bystander in the face.

Bystander is armed (presumably to protect the store), and after being punched, pulls out a weapon.  Grabber then runs, and Bystander chases Grabber to a nearby gas station.  Grabber's brother and a friend see all of this, and go to confront Bystander; Bystander waves them away with his weapon.

A security guard eventually shows up and puts Grabber in handcuffs, mistakenly believing that Grabber has robbed the store (rather than sexually assaulting the woman).  Bystander puts his gun away and, frustrated, kicks Grabber in the head.  The gun, parenthetically, is never fired.

You can see why all this transpires the way it did.  Surely people could have acted differently.

What's the proper result for all of this?

Presumably Grabber could be prosecuted for sexual assault.  Grabber committed the offense, after all, though he's also already been chased with a gun and kicked in the head.

Presumably Bystander could be prosecuted for assault, and perhaps a weapons violation.  Bystander committed that offense, after all, and surely shouldn't have kicked Grabber after there was no threat.  But his friend had been sexually assaulted in front of him, and he had also been personally punched in the face.  You can perhaps see why he drew the weapon to prevent future assaults (and to detain the perpetrator of the sexual assault) and to prevent escalation by Grabber and/or his brother.

So if you're the District Attorney, who gets charged?  If you're the judge, assuming all of the above is true, what's the disposition?

All this, of course, is not a hypothetical.  It's today's opinion.  In the real world, as far as one can tell, Grabber doesn't get charged at all.  Bystander does.  With a Class 3 felony (in Arizona).  For which the sentencing range is between 2 to 9 years in prison, with a presumptive sentence of three and a half years.

The trial judge nonetheless sentences him to 48 hours in jail, and 5 years of probation.

The #metoo movement didn't start in earnest until two or three years after these 2014 events.  Had it gained traction earlier, I wonder whether the district attorney (or the public) would have viewed these events a little differently.  I think there might be a bit more sympathy now for someone who sees a friend become a victim of sexual assault and -- perhaps rashly, perhaps not -- pulls out a weapon in response.

That doesn't excuse kicking the guy when he's restrained, obviously.  But there might be a little more understanding for why things like that happen.

The trial judge's 48-hour sentence was likely founded upon similar concepts.  So maybe 2014 was not all that radically different than 2020 in that regard.

But still.  I wonder if the preliminaries might have played out differently.

Nonetheless, all's well that ends well, right?  No one seriously injured, at least.

Except for one thing.

You may have forgotten that we're talking about a federal case here.  One against William Barr.  You don't get that for a simple state law assault conviction.

One thing I (deliberately) didn't mention at the outset is that Bystander is a refugee from Iraq.  Who was lawfully admitted, and is a permanent (and lawful) resident here.  But since he's now convicted of a felony, the United States wants to send him back.  To Iraq.

Bystander files a plethora of requests -- for asylum, for protection under the Convention Against Torture, etc. -- because his life in Iraq would be, shall we say, less than enjoyable.  But the BIA says he categorically can't get any relief, and hence gets shipped off to Iraq, because he's committed an offense that involves moral turpitude.

And the panel today -- Judges Wallace, Bress, and Lasnik (sitting by designation) -- unanimously agrees.  Off to Iraq for you.  Maybe next time you'll think twice before running after a guy with a gun after he sexually assaults your friend in front of you and punches you in the face. 

Monday, January 13, 2020

In re Williams-Sonoma, Inc. (9th Cir. - Jan. 13, 2020)

First off, congratulations to the attorneys at Sheppard Mullin for getting the Ninth Circuit to grant a mandamus petition.  That's no small feat in any dispute, made even more significant by (1) the fact that it's a civil case, and (2) involves a non-privilege discovery issue.  Well done.  And that they win (albeit in a split opinion) is a bonus as well.

Second, the holding is a pretty important one.  Judge Fernandez, joined by Judge Choe-Groves (sitting by designation from the Court of International Trade), holds that plaintiffs in a putative class action aren't allowed to obtain precertification discovery of names of alternative class members in order to find a substitute for a named plaintiff who didn't work out.  (Here, the original named class plaintiff was from Kentucky, which bars consumer class action suits like the one here.)  Judge Paez dissents, but at least for now, the majority opinion rules.  That's bad for class action plaintiffs, but good for class action defendants.

Finally, even though they lose, it might well be possible for the plaintiffs to salvage practical victory from this unambiguous legal defeat.  The matter was not -- but became -- a high-profile dispute once today's opinion came down.  It's a case that will now be talked about repeatedly in the legal press, including (but very much not limited to) here.  Lots of people will read the underlying story for the first time.

Plaintiffs were looking for discovery so they could find the names of individuals (hopefully in California) who bought 600-count bedding from Williams-Sonoma.  Because the underlying class action alleges that the "600-count" sheets therefrom was actually way, way less than that.

There are more than a few lawyers (and others in the legal profession) who shop at Williams-Sonoma and who like to sleep on nice sheets.  I bet you a fair number of them either themselves purchased 600-count sheets from the place or know someone who did.  Any one of whom could read today's opinion and volunteer to be the missing class action plaintiff.  With ample incentive to do so.

All they'd need to do is to contact class counsel: Amber Eck in San Diego, or any of the other attorneys for the plaintiff listed on the caption.

Because if Williams-Sonoma really is selling 600-count sheets that are anything but, they should probably be held to account.  And, notwithstanding the legal holding from the Ninth Circuit today, that could definitely still happen.

People v. M.B. (Cal. Ct. App. - Jan. 13, 2020)

The Court of Appeal has previously held that you can't impose a criminal restitution penalty before you decide whether the would-be debtor has the ability to pay it; otherwise it's unnecessary (and useless) punishment.

The Court of Appeal decides today -- in an opinion that's only six pages long (including the concurrence) -- that this principle doesn't apply to identical restitution penalties in juvenile cases.

Two things about today's brief, but important, opinion.

First, it's obvious that this panel doesn't agree with the prior decision.  Fair enough.  Panels can obviously disagree, and aren't required to follow horizontal precedent.  Nor are they required to elaborate at length on this disagreement if there are other opinions that have already done so.

Nonetheless, I thought that Justice Yegan (who authors today's opinion) might have wanted to expound a little more, or a little better, than he did on why the prior opinion didn't apply here.

Justice Yegan's opinion basically says that regardless of whether the prior opinion is right or wrong, the present statute expressly says that a court doesn't need to examine ability to pay or to require a separate hearing on this issue.  Okay.  That's different than the adult restitution statute, for sure, since the latter is silent on the issue.

But as Justice Yegan recognized, the prior opinion by the Court of Appeal was based on due process and equal protection principles:  constitutional concepts.  If applicable, those trump -- very concretely -- what the statute says.  So I don't think it's quite right to just briefly state that the appropriate rule here is clear since the statute at issue is (as Justice Yegan twice says) "pretty straightforward."  The actual issue is whether the state and/or federal constitutions require something different than what the statue says.   And that's a difficult question, and one necessarily not answered by the statutory text.

Second, I appreciated Justice Yegan's concurrence to his own opinion, but wonder how far it goes, or which way it cuts.  He points out (correctly) that we're spending an awful lot of money arguing about (or "chasing down") tiny restitution awards, and thus suggests that even if the prior opinion achieved justice in the particular case in front of it (involving an indigent defendant with cerebral palsy who was obviously never going to be able to pay), it didn't make sense to make such a big deal about such a tiny issue, or to require in other cases all the appeals and hearings resulting therefrom.

That's indeed a consequence of making opinions retroactive (to cases on direct appeal, anyway) as opposed to purely prospective (for future restitution awards).  It's a classic and oft-repeated problem that's not unique to this particular dispute.

But Justice Yegan rightly notes that we're typically talking about tiny restitution orders here.  So asks (correctly) "How much time and money should the juvenile justice system spend to 'chase' this $100" restitution award?

But you can see that argument going exactly the other way, right?  Sure, it's a tiny amount, so for that reason, we presumably don't care all that much about it.  (It may not be tiny to the defendant, mind you, but from the state's perspective, it's insignificant.  As Justice Yegan ends his concurrence: "The latin phrase, 'de minimis non curat lex' comes to mind.")

But that's equally a reason not to impose the order in the first place, right?  And, similarly, not to care about wiping the slate clean for cases on direct appeal.  It takes two to fight.  If the government does not feel like an $100 order that's probably never going to be paid anyway isn't worth "a bus trip from juvenile camp to court for a hearing that may, perhaps, result in a lessening of a restitution fine" or "appointed counsel" therein, it can easily avoid all that with a stipulated reversal of the trifle about which the law does not care.

So, yes, it's silly to have huge fights about things that are systemically irrelevant.  (Though I think we still want to fight about things that are keenly relevant to individuals, even though less relevant to the system.)  But that includes the silliness of having the state fight about them.  Particularly when one should remember that the cost of the $100 order isn't just (on one side) the cost of the bus trip (which, yes, we'd like to avoid), but also, on the other side, the cost of actually trying to enforce the $100 order; the collection letters, the probation office record keeping and follow-up, etc.  Those are not trivial costs either.

So the real questions are (1) what the Constitution requires (not what the statute says), (2) what's the best policy, for the individual and/or the state, and (3) which procedure is most efficient; a system that routinely enters mandatory orders that few people will ever pay and that burdens people and the system with their enforcement, or a system that takes into account ability to pay but requires hearings for those defendants sentenced in the interim under the old regime.

Those critical questions aren't much answered in today's very short opinion.  So while I think the focus on this systemic issue is great, I'm not sure the arguments herein advance the ball much.

Or, at a minimum, to me, today's opinion raises just as many questions as it answers.

Friday, January 10, 2020

Villarreal v. DMV (Cal. Ct. App. - Jan. 10, 2020)

What the DMV did here was a crock.  But I agree with the trial court and the Court of Appeal that it doesn't justify an award of fees.

Villarreal gets a DUI in California in 2013, and in 2014, his commercial driver's license (!) is suspended for a year as a result.  Turns out that Villarreal also got a "DUI/DRUG" conviction in Arizona previously, so when he gets his California license back in 2015, Arizona reports the prior conviction, and pursuant to the automated system in California, that out-of-state conviction resulted in the computer spitting out an additional two-year suspension.

Villarreal doesn't like that, so challenges the new suspension.  The DMV agrees with him, so it reduces the new suspension to six months and purges the Arizona conviction from the computer records.

Then, in 2016, after the new (reduced) suspension is over, Villarreal renews his license.  But when you renew your license, the DMV's computer automatically checks for out-of-state convictions.  And since the old Arizona conviction has now been purged from the DMV's system, the computer sees that conviction and . . . spits out another automated two-year suspension.

Villarreal tells the DMV:  "WTF?"  And the DMV understands that this is a problem, so sets aside the new two-year suspension entirely.  But it also tells Villarreal:

“When we purged the Arizona DUI and the suspension order last September, we did not anticipate that a renewal application would result in the conviction being re-reported and another suspension action being generated. We can remove the Arizona DUI conviction and this recent two year suspension again; however, this same issue could arise when Mr. Villarreal renews his license in 2020. We cannot prevent other states from reporting their DUI convictions to California, which automatically update the DMV database and triggers the mandatory actions. The other option would be to leave the 2005 Arizona conviction and the two year suspension which has been set aside on [Villarreal’s] driving record, which would prevent Arizona from reporting the same offense in the future.”

So Villarreal files a petition for writ of mandate.  Which the trial court grants, ordering the DMV not to suspend Villarreal's license (again) based on the old Arizona conviction.

Makes sense.  Justice.  Too bad Villarreal had to endure all of this instead of the DMV just fixing some coding lines (or inputs) in some DMV computer somewhere.

Villarreal then moves for an award of his attorney's fees.  There's no special fee-shifting statute for things like this.  But he says that the lawsuit has resulted in a "significant benefit" to the public, so he's entitled to fees under Section 1021.5 of the CCP.

The trial court and the Court of Appeal disagree, as do I.

There's no good proof about how many people (if any) were in the same situation as Villarreal.  Sure, millions of California drivers could at some point face a similar conundrum, particularly if they (like Villarreal) are commercial drivers with multiple DUI convictions from different states (!).  But that many people "could" be affected doesn't create a public benefit if there's no showing the many people actually are affected.  And that's the big failure of proof here.

If there was substantial evidence that a lot of people (or even a fairly non-trivial number) had to go through what Villarreal went through, yeah, maybe I'd award fees.  And I'll admit that maybe if the requested fees here had been a fair piece smaller -- rather than asking for nearly a quarter million dollars for a case that was not hard at all (the facts largely speak for themselves) -- I might have been more sympathetic to the fee request.

But, in the end, Villarreal gets what he needs, his lawyer asks for a ton, and the Court of Appeal ends the case the way it should.

A decent way to end the week.

Thursday, January 09, 2020

Bom v. Superior Court (Cal. Ct. App. - Jan. 8, 2020)

Want to be incredibly depressed?  Read the first dozen pages of this opinion.

The case involves the criminal prosecution of four social workers with the L.A. County DCFS of allegedly falsifying records in a child neglect case.  Justice Rothschild ultimately holds, in a split opinion, that the defendants cannot be prosecution, and dismisses the charges.

The first twelve pages of the opinion examines in excruciating detail the facts of the underling child neglect investigation.  When you read the first ten or so, you're confronted with easily imaginable circumstances.  There are some serial claims and evidence of child abuse, and the social workers do a thorough investigation over a long period of time and regarding a large number of different claims as they arise.  What they find is contradictory.  Some evidence points to possible abuse, but there are consistently plausible explanations for the bruises, etc.  So there are unannounced inspections, family therapy, investigations, etc., but ultimately, the kid stays with his mother.

And you can see why.  You might come out the other way.  But you might come out the way it did as well.  Touch case.

Then you read the last two pages of the facts.  About finding the kid basically dead.

And you're horrified.  The stuff you discover then makes it crystal clear (to me, at least) that there was indeed abuse all along.  All the initial stories about abuse previously were spot on.  All of the excuses were total lies.  And the child dies as a direct result.

It'd be less depressing if the facts demonstrated a total lack of caring or competence on the part of DCFS or the social workers.  That we can solve (at least in the future) by hiring social workers who are competent and caring.

But that's not what I see here.  I see a close case, with disputable but arguably reasonable calls.

All of which result in the tragic death of a child.

I did a little background work after I read the opinion.  Apparently the L.A. Times called the underlying prosecution of the mother and her boyfriend "one of the most infamous and chilling child abuse cases in California history."  And, reading the Court of Appeal's opinion, you can totally see why.

Wednesday, January 08, 2020

People v. Venegas (Cal. Ct. App. - Jan. 8, 2020)

Sometimes a tangential item in an opinion piques my interest.  This was one of those opinions.

The holding doesn't especially matter (to me, at least).  Just the facts.  It's about a horrible case of mistaken identity an innocent bystander who gets killed.  Apparently, the Winter Gardens gang and the Fraser Maravilla gang were involved in a border war, so a couple of people in the Winter Gardens gang went out driving along the contested frontier to see if they could find a rival gang member to kill.

The opinion then says that the two gang members then spied a rival, with whom "[t]hey made eye contact, prompting Vargas [the intended victim] to flee towards a nearby casino. . . . Venegas rode to the casino’s entrance and gunned down a man he thought was Vargas but who actually was Acevedo [a bystander]."

So, according to the opinion, the victim was "gunned down" at "the casino's entrance."

As I read that, I wondered which casino the opinion was talking about.  Since apparently it's at a contested frontier between gangs.  So I tried to look up the areas controlled by the respective gangs (Winter Gardens and Fraser Maravilla).  I discover that both gangs are apparently Latino and in East Los Angeles, and that Winter Gardens' territory is basically Olympic to the north, the I-5 to the south, Atlantic to the east, and Arizona to the west.

Now, it just so happens that I've been in that location a fair amount.  (My kids often have sporting events in nearby Commerce and Montebello.)  It's actually a pretty small area; probably less than 20 square blocks total (10 by 2).  It's very close to where the I-5 and the I-710 meet; if you've driven on the I-5 in L.A., it's slightly to the northwest of the Citadel outlets - that big shopping mall that you see from the highway with the huge statutes that sort of looks like a fortress.

But here's the thing:

There's no casino there.

The victim allegedly gets shot at "the casino's entrance."  But then I look up news reports of the shooting.  The victim's actually found (according to the L.A. Times) "in the 1300 block of South Atlantic avenue."  Now, that's in an alley that's indeed right on the border between the gangs.  So it makes sense that that's where the guy was shot.

But there's no "casino entrance" anywhere near there.  The nearest casino is the one in Commerce, which I'm confident is the one to which the opinion intends to refer.  But the entrance to that casino is a mile and a half away from where the victim was found.  No way he crawls all that way after being shot; indeed, it takes half an hour for even someone who's not mortally injured to walk the thing, and you'd have to crawl right past the busy shopping mall etc.

Instead, I feel pretty confident that the guy was instead shot and killed right where he was found.  In the alley on South Atlantic, right at the contested border between the two gangs.

I tried to look up the briefs so see where the reference to the casino was made in the briefing, but I couldn't find them online.  I don't imagine that the Court of Appeal made up that part on its own, so imagine it originated in the briefs somehow.

Still.  I don't think the guy was actually shot at the entrance to the casino.  Seems like he was shot a mile and a half way.

At least as best as I can figure out.

POSTSCRIPT - An informed reader knows the scoop, and helpfully shared it with me.  (Thanks!)  Apparently the relevant place is not a casino.  It's a "casino."  There's apparently an illegal betting shop on the southwest corner of Union Pacific and Atlantic Avenues:  a place that's a known Fraser Maravilla gang hangout.  Now, why you need to have an illegal "casino" -- at which you risk getting arrested and, as here, shot -- when there's a legal (and presumably much more expansive) one just down the street is beyond me.  But there you have it.  That's why the victim was shot at the entrance to the "casino."

Maybe put that word in quotes (or put the word "illegal" before it) to make it clear to uninformed readers like me who aren't otherwise cognizant of the illegal betting place? 

(And thanks again for the reader follow-up.)

People v. Cornelius (Cal. Ct. App. - Jan. 8, 2020)

You read opinions about people shooting and killing a lot of different types of people.  Rivals.  Strangers.  Spouses.  Boy- and girlfriends.  Sometimes parents, even.

You see something here that you don't read about all that often.  Someone killing his brother after an argument.

It's a story as old as Cain and Abel, of course.  But nonetheless not something you see every day.

Of course, the punishments are different.  Cain gets marked and cursed by the Lord.  Here, Harold Cornelius gets 40 years in prison.

Tuesday, January 07, 2020

Park v. Barr (9th Cir. - Jan. 7, 2020)

I understand why the panel comes out the way it does here.  To do otherwise would seem clearly inequitable in the present case.

But I wonder if the panel's holding will make it worse -- substantially worse, even -- for the vast majority of people in similar situations.

It's an extremely sympathetic claim.  Ms. Park is a citizen of Korea, marries another citizen of Korea, and they come to the United States.  They overstay their visa, but after 11 years of marriage, they get divorced.  Since they're both from Korea (albeit in California at the time), they go to the consulate of Korea and jointly request a divorce, which is granted.  All this is fine under the law of Korea.

Ms. Park subsequently marries Mr. Park, a U.S. citizen.  There's no doubt that both Ms. Park's first marriage as well as her second marriage are bona fide.  She's not just trying to stay in the U.S.  Since she's now married to a U.S. citizen, she requests to become a citizen.  Which she's entitled to do.

But here's where it gets ugly.

The United States takes the position that even though her marriage to Mr. Park was a real one, she accidentally was never "really" divorced from her first husband.  Not because it was a fake divorce or anything.  But rather because since she resided in California, she couldn't "actually" obtain a divorce from Korea, even though both her and her husband were Korean citizens.  Accordingly, even though she indisputably tried (and intended) to get divorced, she never actually did.  Thereby making her second marriage invalid (since she was already married), which means she gets deported and can't become a U.S. citizen even though she legitimately loves and has married one here.

You get the inequity of that, right?

So the panel reverses that decision.  Holding that, nah, she was in fact validly divorced, and hence was validly married to her second husband.  Thus can stay.

You can see why you might well want the case to come out that way.  Deporting someone who's legitimately married to a U.S. citizen and has tried to do everything associated with her marriage properly just seems incredibly harsh.

The problem is precedent.  As well as the doctrine of unintended consequences.

The reason the U.S. thinks that Ms. Park couldn't validly get divorced at the Korean consulate was because she was in the United States at the time (specifically, California) and had been there with her husband for a long time.  That made them, according to the United States, California residents.  And if both you and your spouse are residents of California, guess where you have to get divorced?  You got it:  California.  Not the Korean consulate.  That's why the U.S. thought the divorce (and thus the second marriage) was invalid.  Because Ms. Park was a resident of California.

And there's totally good precedent for that position.  Since California has indeed squarely held that even if you're an undocumented immigrant, if you live in California and intend to stay here, you're a resident of California for family law purposes.  And hence can get divorced here.

You see the equity of that position, right?  Imagine how bad it would be if you're an undocumented immigrant living in California -- say, for 20 years -- and your spouse starts abusing (or even merely ignoring) you, and you fall in love with someone else and want to marry them.  It'd be super, super bad if California held that you couldn't get a divorce in California since you weren't a citizen here, so had to stay married until and unless you could go back to Cambodia or China or Mexico or whatever and get a divorce there.  Otherwise you're required to stay married to this person you don't love (and perhaps even affirmatively hate).

That's precisely why California has squarely said that, for divorce purposes, you can indeed be a resident of California even though you're undocumented.  And hence get divorced here.

But here's the rub.  If that's the rule -- and it certainly is the rule in California -- then Ms. Park's divorce was indeed invalid.  Because she was a California resident, and thus couldn't get divorced at the Korean consulate.

Which means the only way to obtain the "right" result here (i.e., the one that confirms her divorce and subsequent marriage) is to find these California cases inconsistent with federal law.  Which is what the panel does.  Meaning that Ms. Park is not a resident of California, so her divorce was valid, so her remarriage was valid, so she can stay.

Which is great for Ms. Park.  But affirmatively terrible for everyone else.  Since, under today's ruling, undocumented immigrants are not longer deemed "citizens" of California for purposes of requesting a divorce.  So they can no longer get divorced here.  Since federal law preempts California's law to the contrary.

And this from a panel of left-of-center judges.  Who have now articulated a ruling that, while good for Ms. Park, is almost certainly objectively bad for pretty much every other single undocumented immigrant.

And notice which way the parties lean.  The panel is holding that U.S. law preempts California law.  Yet it's the United States -- the DOJ -- arguing exactly the contrary.  Which says that federal law does not preempt California's law that deems unauthorized immigrants to be California residents for the limited purpose of obtaining a divorce.

Unusual.  To say the least.

To recall, it's understandable why the panel wants to hold the way it does, because it wants to help the sympathetic Ms. Park.  But in doing so, it needs to (1) overrule contrary California precedent, and (2) articulate a holding that's probably not especially persuasive.  Which perhaps explains in part why the opinion is per curiam and unsigned.

But it also makes for a decision that seems bad for everyone else.  And I'm confident that's not what the panel intended.

Which is probably why the opinion repeatedly says that the panel is holding the way it does "in the circumstances of this case."  That's likely the panel's way of trying to help future panels hold that the decision (read: precedent) here hopefully won't stop unauthorized aliens from obtaining divorces in their state of residence in the future.

The problem, however, is that there's no actual (or at least principled) way to distinguish today's case from those future cases.  If federal immigration law preempts California's laws about residence in the divorce context, and means that unauthorized immigrants are affirmatively not residents of California for purposes of divorce, then by definition they can't obtain a divorce here.  Because only residents can obtain a divorce in this forum.  There's no way out from today's holding.

So, yesterday, if you were an undocumented immigrant who wanted (or needed) to divorce your similarly-situated spouse, you could go to a court in California and validly obtain one, pursuant to state law.  That's bad for Ms. Park, since it's not exactly what she did (she went to the consulate for Korea).  But it's good for everyone else.

But after today, undocumented immigrants who want (or need) a similarly divorce cannot go to a California court.  Because the panel holds that federal law precludes such persons from being deemed "residents" of California for purposes of divorce.  Which means that Ms. Park's particular divorce is valid.  But also means that everyone else's divorce (from a California court) is not.  Which is bad for pretty much everyone other than Ms. Park.

Again, I get that the panel wants to reach the holding it does.  And that it tries to input subtle points to help distinguish this case from others.  But I'm not at all persuaded that those purported distinctions and limitations in fact accomplish their objective.  Either in a principled manner or at all.

Which in turn means that this opinion could turn out to be substantially bad for unauthorized immigrants in California.  Really bad.  Even though the panel's intent is clearly the exact opposite.

Which is the way things go sometimes when you're itching to achieve justice in a particular case.

Monday, January 06, 2020

Dalessandro v. Mitchell (Cal. Ct. App. - Jan. 3, 2020)

Part of this opinion I totally get.  But there's a part of it I don't.

I definitely understand the issue surrounding the third footnote.  Brief background:  The case involves a discovery sanction -- a whopping $3,456.70 -- against a party's lawyer.  The lawyer and the client then file an appeal.

Respondent promptly files a motion to dismiss the appeal on the ground that the client has no standing to appeal a sanction order against the lawyer.  True enough.  But basically irrelevant since the lawyer also joined the appeal.  Or, as the Court of Appeal puts it:

"We first address Mitchell’s motion to dismiss Dalessandro from the appeal for lack of standing to challenge a sanctions order issued only against Levine. We agree Dalessandro lacks standing to appeal from the sanctions order. (Calhoun v. Vallejo City Unified School Dist. (1993) 20 Cal.App.4th 39, 42.) However, this does not render Levine’s appeal ineffective. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) There is no dispute Levine has standing to appeal the sanctions order and is properly an appellant in this matter. We therefore deny the motion to dismiss."

Which in turn prompts this footnote.  Which seems entirely appropriate, IMHO:

"We thus question Mitchell’s need to separately file a 12- page motion to dismiss, which spawned an opposition and a reply, on an issue that could have succinctly been addressed in the opening brief, possibly in a footnote. We make this observation to highlight the intensely litigated nature of this case, which does not advance the cause for either party. In addition to the motion to dismiss, Mitchell has filed a motion for sanctions seeking $12,500 to reimburse this court for the costs of processing a frivolous appeal and $8,500 to reimburse Mitchell for defending the appeal. (Cal. Rules of Court, rule 8.276.) The sanctions motion merely repeats the respondent’s brief arguments regarding the weaknesses and technical deficiencies of appellant’s briefs. This has led to a counter request for sanctions from appellants for filing frivolous motions. We find the parties are approaching frivolity, but have not yet crossed into that territory. With that caution, we deny all sanctions requests."

Yeah.  Total unrestrained craziness involving an appeal worth less than $3,500.  Sometimes parties can't restrain themselves.  And when, as here, that's the case, a little public shaming in a published opinion seems appropriate.  Particularly when, as here, extremely lightly done.

So all that makes sense.

Here's the part I don't totally understand.

The Court of Appeal decides that (1) the discovery sanction was appropriate, since (2) the motion to compel was rightly denied, because (3) the underlying discovery (a post-judgment demand) was improper since it was sent via U.S. mail without postage attached to the envelope.  I get this from page four of the opinion.  ("We conclude the trial court did not err in denying the motion to compel. The trial court found service of the demand to be ineffective because there was no postage affixed to the envelope containing it. [Cites] Mitchell was not required to respond to a demand that was not served.")

Okay, I get that.  If someone propounds discovery to me, and I never get it, obviously, I don't have to respond.

Except it seems from the opinion like the recipient of the discovery did receive it. 

I get that from footnote four of the opinion, which notes "Mitchell’s counsel’s written admission that he received the demand."  So I read the underlying briefs.  Which, trust me, are not models of clarity, in the slightest.  From the opinion and from the briefs, it seems like what happens is that there's no postage on the envelope, which gets mailed, but (as far as I can tell) the post office delivers the thing anyway.  (Which I'm familiar with; on rare occasions, I receive an envelope in the mail even though the stamp was inadvertently omitted.  Sometimes, I figure, the post office doesn't care about getting its 50 cents.  Or enforcement just slips through the cracks.)

I'm also thinking that's what may have transpired given the basis of the Court of Appeal's ruling.  Justice Bigelow says that since there was no postage, service was improper -- even if the document was in fact received -- since Section 684.120(a) requires “postage paid” when the service of postjudgment “writ, notice, order, or other paper” is by mail, and citing precedent that “strict compliance with statutory provisions for service by mail is required, and improper service will be given no effect.”  Hence, according to footnote four, even if the document was mailed (as established in the proof of service), and even if it was received, the Court of Appeal says that "the presumption was rebutted by evidence that the envelope had no postage on it, rendering service improper."

Yes, that's what the statute and precedent says.  And if the facts of this case are that someone mailed and envelope, and that envelope wasn't received by the recipient, then I agree it doesn't make proper service just because the recipient got the enclosed document some other way (e.g., by e-mail, or in a subsequent letter, etc.).  You've got to actually mail the thing and have it received.

But if it was mailed and was received, even though a stamp was left off of it, I'm not on board for a holding that says that it's still not proper service.  In that situation, the absence of a stamp did not matter.  AT ALL.  Which means it shouldn't matter to the propriety of service.  At all.

And as support for that point, I could cite a plethora of different provisions of the California Civil Code.  Section 3528 would be one of them.  "The law respects form less than substance."  Section 3510 would be another.  "When the reason of a rule ceases, so should the rule itself."  And Section 3533 would seem on point.  "The law disregards trifles."  Whether a 50 cent stamp was placed on an envelope, fell off, or was inadvertently omitted doesn't matter at all if the post office nonetheless delivers the thing.  The purpose of the law -- effective notice -- has been achieved.  The only party harmed is the post office, which is out fifty cents.  And they're not the ones complaining.

I admit I can conceive of a more difficult middle ground.  What if the stamp was omitted, the post office delivered the mail, but charged the recipient 55 cents (as they sometimes do) for the missing postage in order to deliver it?  Well, then, maybe you could find improper service, since this actually harmed the recipient, albeit merely to the tune of 55 cents.  Maybe that's a "trifle" or not; I can see arguments both ways.

But if it's just an envelope that gets delivered in the exact same way as properly-stamped mail, I see zero reason why that should not be proper service.  Ditto if the sender accidentally puts an old 48 cent stamp on the thing (instead of a "forever" or proper 55-cent stamp) and the envelope gets delivered as usual.  That's not "proper postage" attached either.  But service is still proper.

And I can think of a thousand other variations on Section 684.120(a) that should also constitute proper service notwithstanding the (overly) strict construction that the Court of Appeal might intend for the thing via this opinion.  For example, that section also expressly requires the documents to be in a "sealed envelope."  What if the sender forgot to seal the thing, and left it open, but the documents never slipped out, and were delivered as packaged?  Or what if there wasn't even an envelope, and the documents were instead shipped inside a box (or a burlap sack)?  Seems to me that's totally fine, yet an overly strict reading of the statute would make that improper too.

Or what if you messed up the address and put "Suite 200" on the envelope even though the lawyer's office was actually in Suite 2100, but the postal carrier (as is fairly common) knew full well that the addressee was in Suite 2100 and so delivered the envelope there?  Improper service since 684.120 expressly says the envelope has to be "properly addressed" and it wasn't, and we "strictly construe" service even when the deficiencies are totally irrelevant and harm utterly no one?  I think not.

So if the papers at issue here weren't actually received in the envelope that was sent, I think the Court of Appeal needs to say so, and to modify the opinion so it's clear that hypertechnical deficiencies that are of zero consequence won't negate service.  Or if, instead, that envelope was indeed delivered in the usual way, and was merely missing a stamp, well, then, that seems proper service to me (though unnecessarily risky), and I wouldn't want an opinion that holds otherwise.  If only because I'm quite confident that lawyers (or their assistants) sometimes accidentally leave off stamps, forget to lick an envelope, or make typos.  If that error makes a practical difference, than so be it.

But if it doesn't, then it shouldn't make a legal difference either.  Because the law respects substance and purpose and overlooks trifles.

Including but not limited to omitted 55 cent stamps that the post office doesn't bother to require.

Thursday, January 02, 2020

Volkoff v. Jansenn Pharmacutica (9th Cir. - Jan. 2, 2020)

We begin the new decade with a single opinion from the Ninth Circuit.  One that demonstrates in spades how pedantic the Court of Appeals can be if it doesn't like you.

Alexander Volkoff files a qui tam complaint.  But, presumably in an attempt to shield Mr. Volkoff from liability in the event the complaint was unsuccessful, filed the lawsuit with "Alexander Volkoff LLC" as the plaintiff.

Defendants were not amused, and filed a motion to dismiss.  Mr. Volkoff did not oppose the motion; instead, he filed a first amended complaint that changed the name of the plaintiff to "Jane Doe."  He thought that way he could avoid the dismissal of the complaint; in particular, now the complaint was brought in the name of the person who was actually retaliated against (as opposed to an LLC that was not).

But the district court wasn't psyched.  It crafted its own form of pedantry by holding held that the amended lawsuit was now barred by the first-to-file rule because the initial complaint was filed by "Volkoff LLC" but the new lawsuit was filed by someone "different" (Jane Doe), so the "second" suit was improperly derivative of the first.  Even though we all pretty much know full well that Volkoff has really been the plaintiff the whole time.  Underlying all this is a sense that if plaintiff's counsel wants to play (what seems like) games, we don't like that, and will use those things against 'em.

Perturbed, plaintiff appeals.  The Notice of Appeal states that it's Volkoff -- the plaintiff -- who's the one appealing.

Now it's the Ninth Circuit's turn.  The Court of Appeals dismisses the appeal on the ground that the operative complaint was only filed by Jane Doe.  And "Jane Doe" isn't listed in the Notice of Appeal.  Even though, again, we know full well who's really the one who filed suit.  Plaintiff says that this is a hypertechnical detail, and cites a bevy of cases that hold that you shouldn't dismiss an appeal on the basis of a pleading defect, and that it's clear who's really filing the appeal.  But the Ninth Circuit says those cases don't matter.  There's "no evidence" that Jane Doe and Volkoff are the same.  So we are going to assume that only Volkoff wants to appeal, and he doesn't have standing.  Only Jane Doe does.

So, the Ninth Circuit holds since the fictitious name (represented, don't forget, by the exact same lawyers as the real person, in the exact same case) didn't appeal -- even though those lawyers, who presumably know,  strenuously argue that the fictitious name did intend to appeal -- the appeal is brought by someone irrelevant.  Hence dismissed.

All of which may perhaps be what the rules dictate.  That's the whole point of being pedantic, after all.  Obsessively follow the rules.  If only to achieve a result you want.  In this case, dismissing a suit brought by a team of creative lawyers who end up getting hoisted on their own petard.

So there you have it.  That's how we commence 2020 and beyond.

One final point.  I thought it fascinating that, in holding that Volkoff and Jane Doe were not one and the same (even though they obviously were), Judge Smith's opinion never once mentions the fact that we're talking about Alexander Volkoff and Jane Doe.  Presumably people of two different genders, and a fictitious name deliberately so chosen by counsel for the plaintiff (since "John Doe" would have worked equally well).  Traditionally, the fact that we're presumptively talking about a person of one gender in the original complaint, as opposed to the opposite gender in the amended complaint, would be used as at least some evidence that the two people are not one and the same.

But this fact receives nary a mention in today's opinion.  A fact that I'm reasonably certain would be mentioned in an opinion from, say, twenty years ago.

Another thing different between the new decade and previous ones.