Thursday, April 30, 2020

People v. Torres (Cal. Ct. App. - April 30, 2020)

Tony Torres is 76 years old and has been in prison for murder since 1995 (his sentence is 25 years to life).  He's asked to get out of prison so he can die under the compassionate release program, which seeks to save the state some money by letting prisoners die at home.

Mr. Torres has widely metastatic prostate cancer all over his body.  He's confined to a wheelchair, has to wear a permanent hard cervical collar on his neck (given the cancer all in his spine), and his sister's willing to take care of him at her home in hospice care until he dies.  Everyone agrees that Mr. Torres satisfies the two requirements for compassionate release:  he (1) has less than six months to live, and (2) presents no danger to the public if released.

The question is:  One these two elements are established, does the Board have to release Mr. Torres to die?  Or can it decide, in its discretion, to let him rot in prison instead?  (Here, because a majority of the Board thought that Mr. Torres' "came late to the party" with respect to his expression of remorse for the crimes he had committed.)

The majority says that he's gotta be released; that once the two criteria are established, the state wants to save money, so he gets out.  No danger plus dying very soon equals freedom.  The dissent says that is not the law:  the Board still has discretion, so its their call, even if the statutory qualifications for release are satisfied.

Both positions are articulated extremely well:  for the majority, by Justice Codrington, and for the dissent, by Justice Menetrez.

I'll leave the merits to the respective authors, since I can't improve on either very much.  Two very tangential points instead.

First:  It's a bit funny that no one expressly connects the dots to mention that the experts declared in April 2019 that Mr. Torres had less than six months to live and yet here it is, over a year later, and he is . . . still alive.  The Court of Appeal decides the case as quickly as it can, and issues the remittitur ASAP, presumably because if we thought that Mr. Torres had less than six months to live back then, his life expectancy at this point is much lower.  Still.  The guy's heart keeps on beating.  Even the best medical science can't necessarily predict how long someone with metastatic prostate cancer is going to live.

Second, on a personal note:  Today, the California appellate courts issued not one, not two, not three, but rather fourteen separate published opinions.  Wow.  Really trying to finish April off with a bang, eh?  Even without reading the Ninth Circuit stuff, reading the California opinions -- which total well over three hundred pages today -- took the majority of my working day.  Thank goodness school is over for the semester.  (Except for the fun part:  Grading.  *Sarcasm Alert*)

Patel v. Chavez (Cal. Ct. App. - April 30, 2020)

I'm generally sympathetic to the result in this case.  But have one legal -- and I think, important -- concern.

Employee says that Employer paid him less than a minimum wage and brought this and related wage claims against Employer before the California Labor Board.  The Board held a hearing, heard all the relevant testimony, and found in favor of Employee for $235,000.  Okay.

Immediately thereafter, Employer files a state court lawsuit against Employee and two of the officials on the Labor Board, seeking $10 million in damages because Employee allegedly perjured himself at the Labor Board proceeding and the Labor Board officials made various legal and other errors in their award.  The lawsuit's stupid.  That's not how you challenge an award.  And it's deficient for a plethora of other legal reasons as well.  It's definitely going to lose.

And lose it does.  The Labor Board officials file a demurrer that gets sustained, so they're out.  But Employee takes a slightly different tack, and files an anti-SLAPP motion.  Asserting -- correctly -- that since the cause of action arises out of testimony before an administrative tribunal, it's covered by the anti-SLAPP statute, and (on the merits) is also absolutely protected by the litigation privilege.

Spot on.

The only difficult part is this:  One of the Employer's (silly) claims is that the defendants violated his federal constitutional rights by introducing and accepting the false testimony.  That's a federal claim under Section 1983.  We know that the anti-SLAPP statute applies to state claims.  We also know that (under the Erie doctrine) the anti-SLAPP statue applies to state claims in federal court, but that it does not apply to federal claims in federal court.

Does the anti-SLAPP statute nonetheless apply to federal claims in state court?

The California state cases on this issue generally say:  "Yes."  And today's opinion agrees with that result.  A result that's generally said to arise because -- and this part seems largely correct -- the anti-SLAPP statute is mostly a "procedural" rule, and states apply their own procedures, even to federal substantive claims.

But Justice Rothschild says, smartly, that that's not really the whole story.  Yes, states generally apply their own procedural rules to federal claims.  But there's a second prong of this analysis that adds that a state nonetheless can not do so if the procedural rule affects the federal substantive right.  And that's an exception that the prior state cases haven't really addressed.

So Justice Rothschild goes on to do so.  But holds -- understandably -- that the anti-SLAPP statute doesn't really affect those federal substantive rights.  You can still sue.  And if your suit has merit, you can still prevail.  Yes, it's a tiny bit harder.  But that's true for many procedural rules.  In the end, you can still win, and the burden on your federal substantive rights isn't all that great.  So applying the state procedural rules to your federal substantive entitlement under Section 1983 is permissible.

The analysis there is a good one, and reaches a very plausible result.  Plus it's an important add that Justice Rothschild performs the "second-prong" analysis that a lot of the earlier state cases omit.

I have just one lingering concern.

Sure, the plaintiff can still file his Section 1983 suit, and potentially win.  But under the anti-SLAPP statute, if the defendant prevails, the plaintiff is required to pay the defendant's attorneys fees.  No small disincentive to filing your federal substantive claim.

Justice Rothschild responds that's no big deal, because (1) the anti-SLAPP only requires a prima facie case, and (2) allows plaintiff to get fees if the anti-SLAPP motion is frivolous.  Point (2) isn't really at all persuasive (to me), since that hardly makes the statute truly reciprocal, and is both rarely applied as well as very hard to establish.  But Point (1) isn't crazy.  You can often prevail on anti-SlAPP motions.  And will if you can establish a prima facie -- i.e., marginally meritorious -- claim.

My problem is that I wonder if Justice Rothschild isn't focusing on the appropriate substantive right.  Or at least all of them.

Yes, there's a substantive right under Section 1983 to obtain damages.  But there's also a federal right under that statute to (1) obtain your attorney's fees as well (Section 1988), and under that same statute (2) except in very limited cases, to not pay the other side's attorney's fees.  (Hughes v. Rowe)

There's no doubt that those are federal substantive rights as well, which you can tell (among other things) because state courts are required to follow them (e.g., in Section 1983 claims brought in state court, state courts are required to follow these fee-shifting provisions regardless of what state law might otherwise provide).  So in addition to asking whether someone could file a federal claim under Section 1983 under the anti-SLAPP statute (which, yes, they can), it seems to me you've also got to ask whether the anti-SLAPP provisions of state law impede the federal fee shifting rights under Section 1988.

To which the answer seems obvious.  Yes, they do.  Federal law provides that plaintiffs will not be obliged to pay the other side's fees unless the underlying claim was frivolous, whereas state law (by contrast) says that plaintiffs will be obliged -- indeed, mandated -- to pay the other side's fees even if the underlying claim was not frivolous (but instead merely lacked merit).  You can't get much more of a direct conflict than that.

Now, maybe there's a way out of this.  Maybe you can say that the fee-shifting provisions of federal law aren't sufficiently substantive (though, to me, it seems like they clearly are).  Or maybe you can try to say that state law doesn't impair them (though, again, given the direct conflict, I'm not sure how one can support such a position persuasively).

But, at a minimum, one's got to address that issue.  Which today's Court of Appeal opinion does not.

The reminder is basically just that you have to analyze the state and federal conflict (the Erie or "reverse-Erie" issue) on a provision-by-provision basis.  Just like the Ninth Circuit, for example, follows California state anti-SLAPP rules (as a matter of "substance") with respect to the filing of the motion and fee awards, but do not follow those rules with respect to the automatic stay and appellate review (at least nowadays), so too do I think state courts have to analyze this issue on a provision-by-provision basis.  I tend to agree that state law permissibly subjects federal Section 1983 claims filed in state court to an anti-SLAPP motion.  The filing of that motion doesn't impermissibly interfere with the assertion of those claims.

But that a defendant can file such a motion doesn't mean that it can also permissibly obtain a mandatory recovery of its attorney's fees if it prevails.  That provision might well conflict with substantive provisions of federal law applicable in state court.  And hence not be enforced.

So I appreciated Justice Rothschild's intelligent approach to the doctrinal issues here.  I just wonder if it didn't need to go even a bit more deeply.

In a way that may meaningfully alter the result.

Tuesday, April 28, 2020

U.S. v. Ray (9th Cir. - April 28, 2020)

Those who outlast may perhaps have the last laugh.  Or, vis-a-vis the Ninth Circuit, overrule en banc precedent.

Today's opinion is, I suspect, the opening skirmish of precisely such a fight.

The question is what you do when the trial court messes up a Daubert inquiry for an expert and either admits or excludes that expert's testimony (e.g., by applying the wrong legal standard), and we can't subsequently tell on appeal whether employing the correct standard the expert's testimony would have been admitted at trial.

There are two options.  One option would just be to reverse the decision below and remand for a new trial -- a new trial in which the correct legal standard would be employed, which we'd then review on appeal.  The alternative option would be to conditionally reverse the decision below, but to have the district court decide (now using the correct standard) whether it would have made the same decision that it made about the expert's testimony in the prior trial.  If the decision would be different, then we would conduct a new trial; if the decision is the same, then decision of the previous trial is affirmed.

Both options have at least some merit.  Just six years ago, the Ninth Circuit took a case en banc and decided that the correct option was simply to remand for a new trial.  Period.  A decision that's been followed (and expansively applied) since that time as a matter of circuit precedent.

So issue over, right?  Unless the Supreme Court steps in.  Which it hasn't.

Sort of.

The en banc decision was a close one.  Very close.  6-5.  With the five dissenters preferring the other option:  conditional reversal.

Which brings us to the present time.  Today's opinion is a per curiam one in which all the judges on the panel (1) agree that the trial court erred in the analysis that led to the exclusion of the expert testimony at issue, (2) agree that we can't decide for certain on appeal whether the correct analysis would have resulted in the expert's exclusion or not, and (3) agree that circuit precedent accordingly compels the reversal of the conviction and a remand for a new trial (at which the expert may or may not be admitted, depending on the outcome of the correctly-applied Daubert inquiry).

But all three judges on the panel also join a separate concurrence.  Saying, essentially, that the five dissenters in that 2014 en banc opinion were right, and that the majority opinion was wrong.

In other words, throwing down the gauntlet.  Saying, essentially, that the court should take the case en banc (again) and, this time, make the right call.

The reason why that's especially interesting is not just because the three-judge panel was unanimous in that regard.  But rather because the composition of the court has changed even in the relatively short six year period since the 2014 en banc decision was rendered.  Of the six judges in the majority in that opinion, only two remain active judges -- the remaining four are either now off the court or are senior (and thus ineligible for an en banc panel in this case).  Conversely, four of the five dissenters remain active judges.  Plus, on today's panel, you've got a new judge (Judge Bennett) who wasn't on the court back in 2014 and who's now indicated on which side of this dispute he lies.

So if you count the votes you now know (based on their votes today or in 2014), of the active judges eligible for en banc service, it's 5-2 in favor of the side that lost in 2014.  Which, among other things, suggests that there's a very real chance that the issue gets taken en banc again and, this time, comes out the other way.

And I'm sure today's panel can count the votes in exactly the same way I can.  Probably much better, even.

Now, admittedly, this ignores whatever effect that one might give to circuit stare decisis.  Which, in my view, has a nontrivial role in a case like this.  The court decided this issue just six years ago.  No material differences (in precedent or otherwise) have changed since then.  The only difference is that there are new judges on and off the active roster of the Ninth Circuit.  As well as that a new draw for an en banc panel might result in a different mix of judges than transpired back in 2014.  One could make a strong argument for stare decisis having strong force in a situation like that.

On the other than, it's not like there's much (if any) reliance interest on a decision that says that you get a retrial rather than a conditional reversal when the trial court employs the wrong legal standard in admitting or rejecting expert testimony and we can't tell on appeal what the result would have been if the correct standard was employed.  So that's an argument that suggests that maybe the force of stare decisis is not as strong here as in some other cases.  Plus there's the argument that the prior opinion was just flat out wrong and, as the panel here argues, wastes substantial judicial resources for no good reason.  All of which might push a future en banc panel to reject the prior circuit precedent in order to do the "right" thing.

So my prediction is that there's an en banc vote in this case.  One that may well be successful, and that may well end up with a new panel that overrules the decision of the 2014 en banc court.

Though not without some controversy.  Because, yes, maybe the prior en banc court got it wrong.  But maybe errors like that are something we just have to live with if we want a process that doesn't get 6-5 en banc decisions revisited every time judges come and go from the active roster.

Obbard v. State Bar (Cal. Ct. App. - April 28, 2020)

Here's a good way to get your name in print:  Sue the State Bar of California.

Bonus:  And win!

Phillip Obbard is a research attorney for the Superior Court in Alameda County.  He doesn't feel like taking MCLE classes.  (Who does?)  But he's a member of the Bar, so he's facially subject to such a requirement.

But one exemption is for full-time state employees.  Which Mr. Obbard thinks applies to him.  But the State Bar says he's not an employee of the state; he's an employee of the superior court.  Obbard thinks that's silly; the state basically pays for everything, and his bosses (the judges) are surely state employees.  Plus, research attorneys for the Court of Appeal and California Supreme Court are state employees.  Silly -- and maybe a violation of equal protection -- to treat trial court research attorneys any differently.

So he files a petition for writ of mandate.  Which, honestly, is a lot more work than just taking MCLE classes.  But more power to him.  This way, if he wins, all the trial court research attorneys benefit.  If you count not having to do MCLE as a benefit, anyway.  Which I do.  (Full disclosure:  One of the other exemptions to the MCLE requirement is for full-time law professors, an exemption from which I derive substantial satisfaction.)

The trial court agreed with Mr. Obbard, and so does the Court of Appeal, which affirms in a short and staccato opinion by Justice Burns.

So a win for trial court research attorneys throughout California.

Monday, April 27, 2020

In re S.R. (Cal. Ct. App. - April 23, 2020)

Sometimes it's good that an opinion be published, right or wrong.

Like this one.

The lesson from Justice Bendix's opinion is a stark one, and it is this:

You can have fought for your country in combat in Iraq.  You can have virtually no criminal history at all.  There can be zero -- literally, zero -- evidence that you've ever touched anyone improperly; your spouse, your daughter, another child, anyone.  All this can be true

But if there is child pornography on your computer, the dependency court can take your daughter away from you, forever.

There's reason to publish that opinion if you agree with it.  That way, the potential consequences of possessing child pornography are clear, and it may deter people from engaging in such conduct.  And if other courts in the future confront child pornography cases (and they surely will), those courts can be comfortable knowing that it's okay to take children away from their parents purely on the basis of that offense, even if there's no evidence (as here) of child abuse, even if the mother and daughter insist that there's nothing wrong with the family, etc.  Possession of child pornography alone creates enough danger that the parent might one day molest the child to justify taking her away from him.

There's similarly a reason to publish that opinion if you don't agree with it.  That way, the world will know what the law is.  And if that law (or precedent) is unjust, it can be changed.  Consequences like this that are (allegedly) unjust should not be hidden in the dark.

So I approve of Justice Bendix's decision to (belatedly) publish the opinion.

From a doctrinal perspective, I also wonder how far the holding of the opinion reaches.

The Court of Appeal says that possession of child pornography alone creates a sufficient risk of child abuse to justify taking a kid away.  The statistics and studies with respect to this issue are recounted in the opinion, the contents of which don't appear to be much in dispute.  Everyone agrees that there aren't great studies on the point; that there are lots of limitations of methodological flaws.  But at the same time, everyone seems to agree with the common sense point that some people that reach out to possess child pornography also molest children.  And it's not a crazy assumption at all to believe that someone who's interested in viewing child pornography might be dispositionally more interested than your average person in actually molesting an actual child.

But how much so?  The studies on this point shed extraordinarily little light on the subject.  Take the current case, for example.  A pretty sophisticated expert on the issues evaluates all sorts of data points (prior criminal history, whether substance abuse exists, etc.) and, based on this information, says that the parent here has an "expected recidivism rate" of five percent.  (Whether that means he's a five percent chance of viewing child pornography or a five percent chance of touching a kid is unclear.)  And there's a study that says that many people who are convicted of child pornography admit to at some point improperly touching a kid -- which, although there are huge potential problems with this study, doesn't necessarily conflict with common sense.  Sometimes, if you're interested in watching child pornography, you're also interested in touching (actually do touch) children.  Sometimes.  Definitely.

So the present case is really the poster child for the question:  When the only incriminating evidence you have about the risk of someone actually touching a kid is that he possesses child pornography, is that sufficient to take away his child?  No other reason (at all) to believe that he'll touch that kid (or any other), alongside the child and mother definitively denying any present touching.  Does the fact that the father has watched child pornography alone demonstrate that it's too risky to let him have a child, so we take her away from him?

The Court of Appeal says:  Yes.  Yes it is.

Like I said, I wonder how far this goes.  Let's stipulate (if only for purposes of argument, and with some backing from common sense) that there's some correlation between viewing child pornography and touching kids.  People who do the former are statistically more likely to do the latter.  We're not saying there's necessarily causation.  Just that if you know that someone likes viewing child porn (at least sometimes), statistically, that means there's a somewhat higher risk that they might also desire to actually touch children.  Not everyone.  And won't always act on it even in those in which the desire exists.  But there's nonetheless a statistically greater chance.  Which, the Court of Appeal says, is by itself enough to take away a kid.

Does that same reasoning extend to other things as well?

Take, for example, someone who's read (and/or possesses) the novel Lolita, or its film adaptations or the like.  Some of those people possess or watch it without prurient interest at all.  But some of them undoubtedly have some such interest.  Some possessors "move on" from reading the book or viewing the film to molest children.  Some (many) do not.  Do we take away the children of those people as well?  What about possession of other types of literature that have a focus on incest or pedophilia or the like?  What about a guy who has a vast collection of such literature, and who admits to reading it, but who declares (as the father does here) that he has no interest at all in molesting children, and such testimony is backed up (as here) by the testimony of the relevant child that nothing untoward has ever gone on.  Still too much of a risk?  Still take the kid away?

What's somewhat troubling about these examples is that they all involve items that it are entirely legal -- indeed, protected under the Constitution -- to possess and read/view.  Does the fact that we strongly suspect (or can statistically establish) that actual child molesters are X% more likely to have read Lolita than non-molesters, and that an interest in that book/film is correlated with an interest in actual child molestation, enough to take away a child?  Would that even be constitutional to do so?

At the same time, that at least presents a potential basis for distinction.  Those things are legal, whereas child pornography isn't.  So maybe we can't take away your kid for reading "legal" things that reflect an obsessive sexual interest in children, but we can take away your kid for reading illegal things that reflect that same interest.  The relevant line is the line between legality and illegality.

But does that line make sense here?  For one thing, yes, the father here was convicted of possession of child pornography, but the trial court sentenced him to probation, and while it said he couldn't be near other children, it specifically allowed him to continue his relationship with his daughter.  If the criminal court doesn't think it's appropriate to take away the kid, does relying on the criminal nature of the offense hold sufficient weight to justify taking the kid away notwithstanding the judgment and sentence of the criminal court itself?

And even if the dependency court can "rethink" the judgment of the criminal court, does the line at issue really distinguish between the relevant risks?  Take Person A, who devotes six hours a day and thirty years of his life to amassing and viewing a huge amount of unambiguous child-focused erotica but who insists that he's never touched a child.  Now take Person B, who devotes a similar amount of time to service in the military and as a father and who similarly insists that he's never touched a child, but who nonetheless is found in possession of a cache of child pornography on his computer.

The Court of Appeal says that we can take away the children of Person B since there's a statistical risk that he has or will "progress" to actual child molestation given what we know about him.  Doesn't it seem like the similar statistical risk of actual child molestation for Person A is greater -- indeed, perhaps substantially greater -- than for Person B?  If so, then I'm not sure that the legality/illegality line works.

Plus, even if it did, wouldn't it seem weird?  Imagine that you're faced with having to place your daughter in the care of either Person A or B.  Which would you choose?  (And, no, you can't say "neither."  This is a hypothetical, with a point, not the real world.)  That thought experiment forces you to evaluate which one you think has the higher risk of actually being a child molester.  Could I see someone choosing the avid lifelong collector of child erotica as a caretaker?  I guess so.  But I suspect that lots of people would say that even though he at some point has looked at child porn, Lieutenant B is far less likely than Super Creepy A to actually molest a kid.  So if the relevant issue for the dependency court is (as it seems to be) simply the risk of harm, then the criminal/noncriminal distinction doesn't hold weight.  Bringing us back to the central question:  So what's the line?  Can we really take away kids just because there's a statistical correlation between Characteristic X and future child molestation? Even if the other factors we look at, and the individual characteristics at issue, all detract from such a conclusion in the present case?

I can see some people saying:  "I'll figure out that line once I get to it.  For now, I'm taking away the kid of the guy who watches kiddie porn."  Fair enough.  But one of the central point of legal analysis (or philosophical analysis, or even of logical discourse itself) is to make sense of our intuitions.  So if we can't come up with a justification that makes sense for why we treat two situations differently, that fact may be substantial reason to question and perhaps change those intuitions.  Or the results -- legal or otherwise -- that would otherwise flow from those intuitions.

Anyway, the point is that I thought it valuable that this opinion be published.  Maybe it's right.  Maybe it's not.  But it's definitely worth thinking about at some length.

Friday, April 24, 2020

Moore v. Teed (Cal. Ct. App. - April 24, 2020)

This opinion is like a legal version of The Great Gatsby.  Except it's in San Francisco instead of Long Island and it's got the legal twist of a buy-and-remodel that went astray.

The briefs are even better than the opinion in this regard, if only because they contain some exotic and particularized details that Justice Sanchez's opinion omits.  The Court of Appeal notes that the underlying dispute arose out of  "the purchase and botched remodel of a fixer-upper house in the Pacific Heights neighborhood of San Francisco."  Plaintiff wanted a nice house in San Francisco, but couldn't afford the type of house he desired.  So bought one to fix up.

That's a common story to people in many different income categories.  But in this particular case, the relevant income category is quite high.  Plaintiff was allegedly willing to spend up to $3 million for a house "in one of San Francisco's better neighborhoods," but that wouldn't cut it.  So he buys what we will call a "fixer-upper" on Green Street in San Francisco for . . . $4.8 million.  Which, allegedly, his real estate agent, who has experience in this area, says can be remodeled very nicely for an additional $900,000.

No small chunk of change.

What sorts of remodels are envisioned?  The basics, of course.  Principally making the basement into something nice.  I know you're thinking:  "Oh, it's an unfinished basement.  So put a couch and wood paneling or something in the thing?"  Not quite.  The basement remodel was to create "a cinema and a wine cellar" in the thing.  This is San Francisco, after all.  What counts as "the basics" is something different in that locale, apparently.

The whole thing ends up being a disaster because it turns out you can't do the work for even nearly $900,000, in part because the foundation of the home was defective and not waterproofed, and after the real estate agent/developer is fired, by the time of trial, plaintiff ends up spending nearly . . . . $9 million on the remodel.

So $4.8 million for the house.  Another $9 million for the remodel.  Wow.  I bet the house is pretty darn nice at this point.

Naturally, the plaintiff sues, and prevails (at least in part) at trial, getting some healthy damages as well as attorney's fees.  Defendant appeals, but the Court of Appeal affirms.

The opinion mentions that the property is located on "Green Street" in San Francisco, but provides no additional details.  Which only helps a little bit, since that's a very long street, and runs all the way from the Presidio to the Embarcadero.

But while the briefs generally omit the property address, the exhibits mention that it's at 2758 Green Street.  Very near the Presidio.  A house that Zillow estimates is worth around $12 million.  And in the Google Street View photo, you can still see construction trucks and employees working on the thing.

There are other details in the briefs that are interesting as well, like the loans that the father makes to his son (and Dad's employment and offshore location and properties) as well as details about the real estate agent defendant.  But the case is interesting enough even without them.

The doctrinal point of the opinion is not insubstantial:  whether you can get "benefit of the bargain" damages against fiduciaries in fraud claims involving real property transactions.  (The opinion here says "yes" but concedes that the Court of Appeal is divided on that point.)   But the real reason to read the opinion is simply to take a peek into a slightly different world than the one in which most of us typically live.

In re G.C. (Cal. Ct. App. - April 24, 2020)

Read this opinion, even if you don't care much about dependency cases.  It's got a majority opinion, a dissent, and a concurring opinion that responds to the dissent.

The disagreement between Justice Ramirez (who authors the concurring opinion) and Justice Menetrez (who authors the dissent) reads like a relatively personal one, at least in tone.  That might potentially be explained in part because it's an emotional case; the majority says that the kids have to be removed from the home to protect them, whereas the dissent says the kids are being taken from their parents for no reason.  No small stakes, to be sure.

The dissent also articulates a fairly important doctrinal point and asserts that lots of opinion make the same mistake as the majority here, whereas the majority defends that (important) underlying doctrine as both valid and substantially dispositive here.  So the case is important both for the parties involved as well as more generally, wholly apart from the somewhat unusual manner (for the Court of Appeal, anyway) in which the concurrence and dissent directly refer to each other.

Proof that there's real work being done by the Court of Appeal even in the midst of a global pandemic.

Thursday, April 23, 2020

Tilkey v. Allstate Ins. Co. (Cal. Ct. App. - April 21, 2020)

It's a very big verdict for a wrongful discharge/defamation case:  over $18.6 million.  A judgment that got somewhat smaller after this opinion by the Court of Appeal -- in an amount to be determined on remand -- but that remains incredibly large.

The opinion repeatedly mentions that the plaintiff was charged with "criminal damage deface" under Arizona law.  That's a funny phrase.  I get being charged with "criminal damage" or with "defacing property" or the like.  But calling an offence "criminal damage deface" sounds weird, maybe because it ends with a verb, which most criminal offenses do not.

So I looked up the underlying statute.  Which has a straightforward title:  "Criminal damage."  Given that title, I suspect that the right way to label this offense is to call it "criminal damage."

The statute does have subsections.  The first one is for "recklessly defacing or damaging property of another person."  That was the one charged here.  It doesn't matter if you've defaced or damaged the underlying property, so it seems like adding "deface" to a description of the charge is unnecessary.  I would be happy to just continue to call it "criminal damage" -- if you wanted to be more specific, I guess you could say "criminal damage - another person."  That would distinguish it from, say, the third subsection:  "recklessly damaging property of a utility" (which I'd call, if necessary, "criminal damage - utility").  Or the fourth subsection, which is a funny one, and perhaps tells you a little about the backstory of Arizona:  "recklessly parking any vehicle in such a manner as to deprive livestock of access to the only reasonably available water."  I wonder how often that one gets charged.  (For the record, I'd call that "criminal damage - livestock.")

Of course, the police logs can call the offenses anything they'd like.  They can all it "criminal damage farfegnugen" if they'd like.

But were I reporting the offense in a published opinion, at a minimum, I would probably add a dash to the description so it doesn't look so strange.  Either say that the charged offense was "criminal damage" under subsection (a)(1) -- which it was -- or call it "criminal damage - deface" (or "defacing property of another person").  Those would make more sense.

Plus, isn't it strange that in subsection (b) of the statute, in which the relevant sentences for these various offenses are set forth, there's no sentence set forth for "defacing" property?  The statute says that various offenses are higher-level felonies (e.g., if someone "recklessly damages property of another in an amount of ten thousand dollars or more"), but both all of these descriptions as well as the residual clause talk about "damage" to property, not "defacing" it.  (The residual clause, subsection (b)(6), says "In all other cases criminal damage is a class 2 misdemeanor.")  The use of the term "damage" in every one of those clauses amplifies my desire to just call the offense "criminal damage."  At least in published opinions (as opposed to, say, on a police blotter or the like.)  It's not only the title of the statute, but it's the essential predicate of every single punishment provision.  So I think we can call it that.  Without adding a weird verb at the end.

Wednesday, April 22, 2020

NRDC v. US EPA (9th Cir. - April 22, 2020)

It takes a lot to get the Ninth Circuit to issue a writ of mandamus ordering an administrative agency to get off its duff.  It happens here.

The opening paragraph of the opinion by Judge Gould sets the tone for the rest of the thing:

"For more than a decade, the Natural Resources Defense Council (NRDC) has waited in vain for the United States Environmental Protection Agency (EPA) to respond to its administrative petition requesting that the Agency end the use of a dangerous pesticide in household pet products. Repeatedly, the EPA has kicked the can down the road and betrayed its prior assurances of timely action, even as it has acknowledged that the pesticide poses widespread, serious risks to the neurodevelopmental health of children. Guided by our case law and the history of these proceedings, we hold that the EPA has unreasonably and egregiously delayed the performance of its statutory duties on this critical matter of public health and that the circumstances warrant the extraordinary remedy of issuing a writ of mandamus. We grant NRDC’s petition for a writ of mandamus."

The opinion is an example of litigation being good for one side until it's not.  There were prior efforts by the NRDC to speed up the EPA's response to its petition, but they generally came to nothing.  The judiciary didn't want to intervene and set potentially artificial deadlines.

But, at some point, enough is enough.  This opinion ends in exactly the opposite manner, with hard and fast deadlines.  "We order the EPA to issue a full and final response to the Administrative Petition within 90 days of the date that this decision becomes final, either by denying the Petition or by initiating cancellation proceedings. If the EPA initiates cancellation proceedings, we order the EPA to file status reports with this court every two months, until registration of TCVP has been cancelled. We note, however, if the EPA begins cancellation proceedings, then we expect cancellation proceedings to conclude within one year of the date of this decision, and any extension beyond that must be supported by a showing of good cause. By contrast, if the Agency denies NRDC’s Petition on the merits, then NRDC may appeal that final agency action under the standards of the APA and any other applicable law. This court shall retain jurisdiction until the EPA has taken a final action subject to judicial review."

That'll speed things up for sure.

Monday, April 20, 2020

People v. Torres (Cal. Ct. App. - April 20, 2020)

I'm somewhat leaning towards Justice Tangeman's dissent in this one.

Even before reading the dissent (and even before knowing there was one), I was a bit uncomfortable about the reasoning of Justice Yegan's opinion.  Not because I was particularly sympathetic with the defendant, mind you.  Mr. Torres appears to have repeatedly beaten his ex-girlfriend, and then in connection with his upcoming trial on those charges, allegedly had his sister contact the victim (in violation of a protective order, no less) to ask her to say that she was coerced into pressing charges against him.  Not good.

Nor am I particularly enthusiastic about defendants exercising their right to represent themselves at trial.  It's almost invariably a remarkably stupid decision.  And I have serious concerns that, at least in some cases (though by no means in most of them), that decision might even result in people innocent of an offense being convicted.  By contrast, almost never will it result in an more accurate decision on the merits.

The combination of these things makes me very far from reflexively outraged by the fact that the trial judge here revoked Mr. Torres' right to represent himself.

Yet I think that Justice Tangeman may be right that the trial court here may well have erred.

Although Justice Tangeman focuses mostly on the "available alternatives" prong (arguing that there may have been less drastic measures available short of revoking pro per status), for me, the more troubling issue is why the revocation was justified in the first place.  Did Mr. Torres do something wrong by allegedly attempting to dissuade a witness?  Sure.  The state can surely respond to that by charging Mr. Torres with that crime; moreover, he could also likely be prosecuted for violation of the protective order.  Those things wouldn't bother me at all.

But why does his right to self-representation get terminated?

You don't lose all your rights just because you've committed a criminal offense.  Imagine that the state said, for example:  "Oh, you tried to dissuade a witness.  You can no read publications of your choosing or write to the the governor or your elected representatives.  Those rights are forfeit."  We would surely find that to be impermissible.  To take away your rights, there needs to be some nexus between what you've done and the allegedly forfeited entitlement.  Particularly when the rights at stake are, as here, constitutional ones.

We can all agree on that, right?  A principle amply supported by precedent, I believe.  In the situation presented here, for example, the California Supreme Court has said:  "A defendant acting as his own attorney has no greater privileges than any member of the bar. He may not disrupt proceedings or intimidate witnesses. . . . . The trial court can stop harassment and abuse of a witness by a threatening defendant and can terminate self-representation by a defendant who engages in serious misconduct. Threatening or intimidating acts are not limited to the courtroom. When a defendant exploits or manipulates his in propria persona status to engage in such acts, wherever they may occur, the trial court does not abuse its discretion in determining he has forfeited the right of continued self-representation."

Note that portion of that quote that I put in italics.  Yes, if you use your status as your own attorney to improperly berate a witness, or to engage in criminal offenses, there's the required nexus,  so your right can be taken away.  You've used that right (self-representation) to do something improper (e.g., to threaten the victim during your cross-examination of her), so we can declare that right forfeit.  If only to stop you from doing it again.

But, here, from the facts presented, the defendant's alleged illegality didn't arise from his self-representation at all.  As far as anyone can tell, his offense consisted entirely of calling his sister from the regular old jail phone and asking her to talk to the victim.  That may well be illegal, but it's conduct that regular prisoners perform every day -- prisoners that don't represent themselves at all.  (Witness the many reported prosecutions for precisely such alleged intimation of witnesses against "regular" prisoners -- ones with lawyers -- who try to "assist" their counsel in precisely this way.)  It would be one thing if Mr. Torres used his self-represented status to improperly cross-examine the victim, or to finagle a visit with her in the guise of interviewing her, or used special privileges given to self-represented litigants to contact her, or employed a court-appointed investigator to contact her.  But he did none of those things.  He made a call that any inmate (self-represented or not) was able to make and did something illegal.  That's not an abuse of the privilege.  It's simply a crime; one that we can (and regularly do) punish in the ordinary course of events.

The majority opinion breezily states that "While representing himself, appellant’s actions, including the telephone attempt to intimidate a witness, are attributed to him in his self-represented status."  But that conclusion does not follow from its predicate.  Just because one is self-represented surely does not mean that everything one does is "attributed to [one's] self-represented status."  And, if so, the ability to restrict one's constitutional rights seems unlimited.  Imagine that a self-represented party makes pruno in his jailhouse toilet.  Do you get to revoke his constitutional right for that?  Imagine he punches another inmate.  No more self-representation for that either?  Indecently exposed yourself at night in your cell?  Not worthy to represent yourself?

You could make an argument that any offense shows that you're not able to "follow the rules" and hence there's a "link" between what you did and your constitutional right to represent yourself.  But that proves far too much.  It's not a sufficient nexus to permit the revocation of critical constitutional liberties for pretrial detainees (whom, it bears at least brief mention, we presume are innocent).

Rather, the correct test seems to be the one articulated by the California Supreme Court.  If a pretrial detainee "exploits or manipulates his in propria persona status to engage in such acts [e.g., witness intimidation]," then you can revoke that status.  But the defendant here didn't do that.  He did not "exploit" his status to do anything.  He did the exact same thing he could have done, in the exact same way, as any other non-self-represented prisoner.  He made an idiotic phone call from jail to his sister.  That doesn't "exploit" his self-represented status in any way.

That's the line I'd draw.  Exemplified perhaps most concretely with a hypothetical.  Imagine that a pretrial detainee is being transported to a courtroom for a hearing and tries to escape.  That's a crime, and we can punish him for that.  Can we also take away his right to represent himself?  To me, it depends on whether he "exploited" his self-represented status to facilitate the escape.  If, say, he used that status to file a motion or schedule a hearing, and then used that hearing to try to escape, yep, you tried to exploit your status to do something wrong, and we can take away your right to represent yourself.  By contrast, if the hearing was simply a routine one at which all defendants were required to appear anyway (e.g., an arraignment, or trial, or whatever), and you merely unwisely decided to attempt an escape at that moment, you haven't "exploited" your self-represented status.  We can still criminally prosecute you, as well as take whatever future safety measures (e.g., restraints) might be required to stop you from trying it again.  But just like we can't take away your First Amendment rights based on such misconduct, so too can't we take away your right to represent yourself.  The one thing doesn't implicate the other.  You haven't "exploited" your right, so we can't take it away.

I get why Justice Yegan jumps to the rapid conclusion that someone who attempts to dissuade a witness has by necessity done something that is "attributed" to his right to self-representation.  They both arise from a trial, after all, and an attempt to be acquitted therein.  But the required linkage still does not exist, in my view.  Mr. Torres didn't "exploit" his status.  Yes, his status was X, but he did not use X to commit an offense.  So he retains the constitutional right to X.

As a matter of both precedent and doctrinal sense.

People v. May (Cal. Ct. App. - April 20, 2020)

I suspect that it's pure coincidence, but this opinion is appropriately published on 4/20.

It's a story from back in 2016.  There's a huge marijuana grow operation in Butte County (near Chico) on an 165-acre property with eight different grow sites.  The evidence, viewed in the light favorable to the conviction, shows that the defendant, Raymond May, (1) was a manager of the marijuana grow operation, (2) slept in a trailer on the property, and (3) possessed an (illegal) AK-47 used to guard the drugs that "had a collapsible stock to make it more compact, a flash suppressor to minimize the explosion from the weapon when fired, a detachable high-capacity magazine holding 30 rounds, and a three-position selector switch [that] . . . . allowed a user to switch the weapon’s setting from safety to fully automatic fire."  So, basically, like your classic marijuana grow in a movie.

So what's the defendant's sentence, you think?

Sure, it's up in Northern California, where these things are not hugely uncommon.  Though, still, the events predate the most recent legalization moves.  And the illegal firearm is a big deal, as is the fact that it's being used in connection with a large scale drug operation:  a classic no-no.

Mr. May's sentence?

Probation.  No jail time at all.

Not what I would have guessed from the facts.

As I said at the outset:  a case appropriately published on 4/20.  One that gives hope, I suspect, to a variety of drug operators who similarly tend their fields with illegal fully automatic weapons.

Friday, April 17, 2020

Anthony v. TRAX Int'l (9th Cir. - April 17, 2020)

This reads much more like an opinion from, say, Judge O'Scannlain, which it's not, than from Judge Wardlaw, which it is.

It's a seemingly straightforward "after acquired evidence" issue.  What do you do when Employer fires Employee for (allegedly discriminatory) Reason X and then, during the litigation, discovers that Employee had done something totally wrong (Reason Y; e.g., faking his resume, stealing company property, etc) that would absolutely justify firing the guy?

You could see the arguments on both sides.  Maybe that newly acquired evidence should bar the lawsuit entirely, since Employee should definitely be fired anyway, regardless of why he was fired in the first place.  By contrast, maybe that newly acquired evidence shouldn't matter at all, since that was not the reason the Employee was, in fact, fired, and post hoc evidence dug up during a lawsuit shouldn't get Employer off the hook for its actual illegal and discriminatory conduct.

The Supreme Court unanimously adopted a middle ground approach in 1995.  It said that the after acquired evidence doesn't entirely bar the lawsuit (since the employer still in fact fired the person illegally), but it does bar the employee from obtaining damages for the period after this new-found reason was discovered (since the employer legitimately could fire the person at that point anyway).

Okay.  That's the rule.  On which everyone seems to agree.

But this case is slightly different.  That Supreme Court case was an ADEA (age discrimination) case.  This one's slightly different; it's a ADA (disability discrimination) case.  When an employer illegally fires you because you're old, the fact that you, say, faked your resume and hence aren't in fact actually qualified for your job cuts off your damages.  Does that same rule apply, in that same situation, apply when the employer illegally fires you because you're disabled (instead of old)?

The Ninth Circuit says . . . no.  It doesn't.  A different rule applies.

The appropriate rule, the Ninth Circuit says, is harsher to the employee.  The employee who's fired because he's old still gets some damages.  But the employee who's fired because he's disabled gets nothing.  His lawsuit's dismissed.

Not really the result you're facially expecting from a Ninth Circuit panel, right?  Much less one on which Judge Fletcher sits and in an opinion by Judge Wardlaw.  Particularly when other circuits have expressly held that the rule is the same in both age and disability discrimination cases; although the circuits are split, you'd probably expect the Ninth Circuit (at least with this panel) to come out on the more progressive side of the equation, no?

But it's not really the result here that's so surprising.  You could make reasonable arguments in the employer's favor here, both just as did the losing party in the Supreme Court's case in 1995 as well as based upon the underlying statutory language here.

Nope, it's not necessarily the result of the opinion that struck me as somewhat odd.  It's instead the tenor.

This is an opinion that's relentlessly hostile to the employee's position.  Its language is not nuanced and balanced and appreciative of the nuances on both sides.  It's instead just straightforward "It's this way and no other."  Which might make sense for someone who's unrelentingly adverse to plaintiffs or employee rights or to the underlying doctrinal principles.  But that's not particularly how I would normally describe Judge Wardlaw.  I'd expect that an opinion from her (particularly one joined by Judge Fletcher) would be moderate and reflective of the equities of the employee's arguments -- particularly given a unanimous Supreme Court opinion that strongly supports that side -- even if she ultimately came out (as here) in favor of the contrary position advanced by the employer.

But, with respect, I see very little of that here.  It's really a very categorical opinion.  The cases and arguments on the other side are "unpersuasive" and rapidly dismissed.  The analysis is staccato and harsh.  Given the eminently reasonable arguments on both sides, it's just not what I would have, on first principles, expected.

Even little tiny points stick out.  To take but one example:  In describing and distinguishing the Supreme Court's arguably controlling 1995 opinion, which allowed the employee to sue (albeit with reduced damages), Judge Wardlaw describes the case in the following manner:

"But McKennon was a case in which the defendant conceded it had unlawfully discriminated against the plaintiff on the basis of age and was attempting to use after-acquired evidence of wrongdoing to assert that the plaintiff would have been fired anyway and to excuse its discriminatory conduct. 513 U.S. at 355–56. This is what the Supreme Court held impermissible, even as it allowed the evidence as relevant to the remedies available to the plaintiff. Id. at 356, 360."

Well, yeah, that's one way to describe the case.  You start out by saying that the defendant "conceded that it had unlawfully discriminated against the plaintiff," and then go on to explain why, in light of that concession, any rational tribunal with a sense of fairness would hold it "impermissible" to use such after-acquired evidence "to excuse its discriminatory conduct."  Whereas, here, the defendant doesn't concede that it has done anything illegal, and is just saying that the employee shouldn't be allowed to recover because it turns out she didn't actually graduate from college with an English degree as she said she did on her resume (and as the job requires).  That's a totally different type of fairness, right?

Except one thing.  The defendant in that 1995 Supreme Court case didn't "concede[] that it had unlawfully discriminated against the plaintiff," and certainly not any more than the defendant here made an identical such concession.  The defendant in that 1995 case totally denied that it fired the plaintiff based on her age; rather, it vociferously asserted that she was the legitimate victim of a reduction-in-force (RIF) because the company was losing money.  And then it said that, during discovery, when the plaintiff admitted (allegedly) to stealing company documents about the financial condition of the company (allegedlly for "insurance" and "protection"), yeah, that after-acquired evidence definitely justified firing her, so she shouldn't be allowed to sure.

Now, Judge Wardlaw's description isn't entirely factually inaccurate.  The defendant in that 1995 case was moving for summary judgment, and given the procedural context of that motion, it was necessarily arguing that even assuming that it unlawfully discriminated  (i.e., even if it "conceded" such discrimination), it would still have a defense.  Just as the defendant in the present case was also moving for summary judgment, and hence, in that context, was "conceding" that it too illegally discriminated against the plaintiff.  (Even though the defendant here, too, actually denied on the merits that this was in fact the case.)

It's a somewhat minor point, to be sure.  But it just struck me as representative of the type of labels and description that were contained in the opinion.  Yes, you could introduce an opinion that you were eager to distinguish by saying that in that case the employer had "conceded" that it had illegally discriminated and was using after-acquired evidence to "excuse its discriminatory conduct," all in the service of establishing that your case is different because here the employer is saying it did not fire the plaintiff on the basis of her disability and was instead seeking to dismiss her lawsuit because it found out during discovery that she didn't have a B.A. in English as the contract requires.  That might not be a factually wrong way of describing that case.  But it nonetheless seems a description that is somewhat distant from neutral.  And not that far off from other examples of a similar nature that appear (albeit to a lesser degree, I think) throughout the opinion.

Again, I can see the Ninth Circuit coming out this way.  I can see definite arguments on the merits on the other side as well. but I see the arguments on this side as well.

I just was surprised that the opinion was written in such a black-and-white manner.  For something that seems to me such a more obvious shade of gray.

U.S. v. Costano (9th Cir. - April 17, 2020)

I'm not normally a big television series watcher, but during the quarantine, I have started watching a bit of Ozark, which is about a "normal" family that launders drug money.  Today's opinion from the Ninth Circuit is also about someone who laundered (fictional) drug money, and who was convicted of that offense.  So perhaps for that reason, my interest was piqued.

The (fictional) money laundering in the series happens the old-fashioned way; e.g., mixing illegally obtained money with money from legitimate businesses.  Here, by contrast, the defendant did things in a somewhat higher-tech way, but at the same time, did the same thing that lots of people do.  All he did was to allow people to purchase bitcoins with cash.  Period.  He's just a broker.  Lots of people do the same thing.  He's got some bitcoins, and if you want to get some yourself, you go to people like him (or companies like him).  He doesn't do anything different than any of these other individuals or entities.  So he's very much not like your traditional money launderer who's doing something illegal per se.

The reason the guy gets treated differently -- i.e., arrested and convicted -- is because he allegedly knows that the cash that's buying his bitcoins comes from drug sales.  Because that's what the buyers expressly tell him.  Mr. Costano isn't actually involved in the drug sales or the like.  And, in reality, there aren't actually any drug sales at all; it's all made up.  But the undercover agents tell Mr. Costano that the cash comes from drug sales, he says he doesn't care one way or the other where the money comes from, and so he's convicted of money laundering.

Fair enough.  Even if you run a legitimate business, you can't facilitate a drug business by taking their money and converting it into bitcoin.  That's understandably a crime.

At the same time, however, I look at the sentence Mr. Costano receives.  It's three-plus years in federal prison, plus another three years of supervised release.  Now, that's not a super long sentence by any stretch.  But for your normal person with a normal life, that's a long time.  Away from your family and friends, away from freedom, etc.  Plus all the stresses and the like of a federal criminal trial.  All for converting what was, in fact, not drug money into bitcoin.

Though, to reiterate, it's not a super long time.  And it may deter others from similar conduct.

But the consequences nonetheless seems somewhat arbitrary, and the deterrent effect perhaps incredibly minimal in the real world.  The reason that Mr. Costano gets jammed up is solely because he gives a remarkably stupid response when the agents set him up.  It's only money laundering (in situations like this) if you know it's drug money; otherwise, trading bitcoin for cash is perfectly legitimate and legal.  So the agents, of course, expressly tell him that it's drug money.

In response, any half-smart person is going to say:  "Oh, shucks.  Then I can't sell you the bitcoin.  I can't sell you it if I know your cash comes from drugs."  Then the other side is going to say (if they're in fact drug dealers):  "Oh, I'm sorry, I misspoke.  The money is from legitimate activities; I said the money was from 'slugs,' not drugs, but you must have misheard me.  I'm a slug dealer.  I buy and sell exotic pets.  The money's from that."  Or they get some other totally unrelated guy to come back in later who says he's using the bitcoin for investments or whatever.  In short, the transaction happens, and the bitcoin dealer gets his money, and no one gets convicted.  That's what you'd tell the bitcoin dealer if you were his lawyer:  "Don't sell to anyone who expressly tells you it's for drugs."  Those are the guys who are either FBI agents or who might otherwise get you in trouble.  It's fine if you have a lingering suspicion that it might be drug money.  They can't get you for that.  But when they come on out and expressly tell you it's drug money, that's the telltale sign of an undercover cop.  Back out.

Which makes putting the guy in prison for years and years seem so random.  It's like it's just a tax on incredibly stupid criminals.  Anyone half-smart goes totally free.  And convicting the guy doesn't put even a dent in actual drug laundering one bit.  Because people who are actually using drug money to buy bitcoins do not moronically tell their bitcoin broker that that's what they're doing.  Nor do people who normally sell bitcoins to drug dealers do it as stupidly as the defendant here.

So, yeah, the guy committed a crime, and so he goes to prison for a bit.  I'm okay with that.  But I do not think that stuff like this really has any practical effect at all.  Deterrent or otherwise.  It just puts people with potentially legitimate businesses into a situation in which, if they're morons (and willing to say as much), they get convicted.  It's not that innocent people will be convicted; those guys will just say "No."  It's simply that you're not having any actual effect on the underlying actual problem and at the same time just punishing the unrepresented and/or profoundly unsophisticated -- a tiny and practically meaningless fraction of the relevant universe.

I get it if some people say:  "That's fine with me; I'd rather punish 1% then 0%, even if it has no effect at all on the drug supply, deterrence, or anything practical at all."  It's just that I'm not that much of a retributivist, and even if I were, the randomness of the thing would still make me a bit uneasy.  At least when, as here, the relevant sentence is far from a trivial one.

At a minimum, a word to the (un)wise:  When someone tells you that it's drug money, stop what you are doing and make a quick call to a lawyer.  You'll be glad you did.

Thursday, April 16, 2020

Donkin v. Donkin (Cal. Ct. App. - April 3, 2020)

I certainly understand the desire to avoid estate taxes.  No one (particularly) likes paying taxes.  Even after you're dead.  So I get why the parents here created a bypass trust so their property could pass to their two children upon their respective deaths.  We call that planning.

And the trust here does not seem all that unusual.  Just your standard (to me, anyway) bypass trust that gives the property to both children once the parents are dead.

But look what happens.

The two kids fight about the resulting trust.  Not for months.  Not for years.  For basically decades.

And the fight continues to this day.

The father died in 2002.  The mother died in 2005.  If they'd have just passed all the property on to the two kids like usual, in 2005, that'd be the end of things.  No fights, no attorney's fees, just Mom and Dad's money to spend.

Instead, litigation.  Repeated, continuous, undeniably expensive litigation.  Litigation that resulted in a trip to the California Supreme Court, multiple rounds in the Court of Appeal, and so much work in the probate court that I can't even fathom it all.

All from a simple little trust.  All to try to avoid some taxes.

I'm not in a position to place blame.  Was it the parents' fault?  The lawyer's?  The kids'?  Not sure.

All I know is that there's this huge fight that's socially unproductive and undoubtedly deleterious to the relationship of the kids.  None of which the parents would have wanted.

If they'd have known what would have ultimately transpired, I bet they'd have just paid the taxes, if any.  Happily.

Tuesday, April 14, 2020

Nuno v. CSUB (Cal. Ct. App. - April 13, 2020)

I typically appreciate it when courts are solicitous about parties who make mistakes resulting from procedural confusion, particularly when those litigants are representing themselves.  I like lawsuits to typically be resolved on their merits.  That's the American way.

Notwithstanding that preference, I don't know about this one.

The self-represented litigant here is a full-time professor at Cal State University Bakersfield.  No slouch.  He says he was discriminated against when he wasn't promoted to full professor.  He decides to represent himself both in administrative proceedings and when he files a lawsuit.  Fair enough.

The trial court grants the defendant's demurrer with leave to amend.  Professor Nuno nonetheless fails to amend.  As a result, not surprisingly, the lawsuit gets dismissed.  With, of course, the ability of the plaintiff to appeal the grant of the demurrer.  That's the way it usually works.  Happens thousands of times a year.

But Professor Nuno says that his lawsuit shouldn't have been dismissed not because the demurrer to his complaint was unfounded, but rather because he should have been permitted to file an amended complaint after the deadline set by the trial court had expired.

And the Court of Appeal agrees.  Justice Franson says that the trial court's instructions to the plaintiff were legitimately confusing, so it constituted an abuse of discretion not to give him more time to file his amended complaint.


It all seemed pretty darn clear to me.

In October 2017, plaintiff files his lawsuit.  Defendant files its demurrer in February 2018.  Plaintiff doesn't even oppose the demurrer.  Plaintiff then shows up at the hearing on the demurrer on March 27, 2018 and says that "he did not file an opposition because he had been in communication with attorneys and, by the time they informed him they would not take the case, the deadline had passed."

Needless to say, that's not an excuse, so the court grants the demurrer with leave to amend.  Defense counsel then confirms at the hearing that there's leave to amend and says "We’ll simply wait to see what [plaintiff] has for us in his amended complaint and respond accordingly.”  The trial court goes out of its way to ask the plaintiff if he understands what's going on.  Plaintiff responds:  "I’m sorry, Your Honor. I don’t. What I do have is an extension—or request a motion to—a motion for extension to seek legal counsel and extend plaintiff’s deadline to file the opposition to the demurrer and any other motion as of today.” The trial court responds, nope, we already dealt with that demurrer, it's been granted, so I'm denying that motion to extend your deadline as untimely.  But the trial court expressly reminds the plaintiff that he can nonetheless amend his complaint (hence the "leave to amend") as well as the deadline, saying:  "I’m going to give you 20 days to file an amended complaint.”

Pretty darn clear, no?  So his amended complaint -- if he wants to file one -- is due in 20 days.

After the hearing, defendant prepares a proposed notice of ruling, to which plaintiff objects.  So the plaintiff seems pretty hip on what's going down; he's even objecting to notices of ruling.  And in that objection, on April 2, 2018, plaintiff reiterates his understanding that he's got to amend his complaint, saying that he  "will be filing an amended complaint to support charges of retaliation, harassment, defamation of character, discrimination and homophobia in the workplace.”

Okay, then.  No problem.

Lest there be any doubt:  Three days later, on April 5, 2018, "plaintiff filed a request for extension to amend complaint and seek and retain legal counsel. The document stated: 'Plaintiff requests additional 60 days and replace the original 20 day extension on the date of hearing (March 27, 2018).' Plaintiff also submitted a proposed order. Four days later, the trial court crossed out the portion of the proposed order granting the 60-day extension, stamped the order “DENIED,” and filed it."

Well now.  You can't get much clearer than that, right?  There's 20 days to amend.  Plaintiff says he's going to amend.  He asks for more days.  The trial court says no.  You don't have to be a full-time professor to understand what that means.  No?

Now, on April 28, 2018, there's a case management conference.  Here are the full details about that:

"On April 23, 2018, the trial court held a case management conference. The court asked plaintiff the status on getting an amended complaint filed. Plaintiff (1) referred to the denial of his request for an extension to seek and retain counsel, (2) stated he had been in contact with defense counsel to submit to the court a recommendation of management of the case, but his recommendation was not accepted by defense counsel, and (3) stated he intended to submit his case management statement if the court permitted it. The court, returning to its question, again asked plaintiff the status of getting an amended complaint. Plaintiff said: “Your Honor, in seeking counsel, I’m in the process of doing that.”

Next, the court asked defense counsel if she had anything to add. Counsel acknowledged no amended complaint had been received and stated: “We’re wondering if we should either push this statement [sic] conference out or if we should move to dismiss. We’re just wondering what the Court would prefer to do in terms of waiting for the amended complaint.” The court replied: “My plan today is to push out the case management conference. I’m looking at maybe 45 days out, to June 6th, if that[] works on everybody’s calendar.” Plaintiff stated he was going to be at a conference out of the country and asked “if the Court could provide for three more weeks after that.” The parties agreed on June 27th and the court stated: “So we’ll continue this out to June 27th, 2018. That will be at 8:15 a.m. back here in Department 10.”

Defense counsel then asked: “When should we expect an amended complaint at this point?” The court stated: “I asked twice and I didn’t get an answer, so I’m not sure. I’ll let—[Defense counsel] you do what you need to do in case the amended complaint is not filed. [¶] Mr. Nuno, the responsibility is on you to get that filed.” Plaintiff responded: “Yes, Your Honor. I’m trying.”"

Okay, then.  Plaintiff says he knows his request for more than 20 days was denied.  He's told again that he's got to get on the stick and file his amended complaint.  And the defendant says it's waiting for it.  To boot, the trial court reminds the plaintiff that it's his responsibility to get the thing filed; no excuses.

So, if it were you, you'd file it within 20 days, no?

Now, admittedly, one might say:  "Twenty days from what?"  The common sense answer would be "20 days from when plaintiff was told that the demurrer was sustained, at the hearing on March 27."  But, to plaintiff's benefit, we don't actually work things that way.  Hyptertechnical procedure and all.  The twenty days actually starts only upon entry of the written notice of ruling.  Defendant submitted the proposed order on April 2, 2018, so you might run the 20 days from that.  Or you might even run the 20 days from the hearing on April 23, at which the court again reminded the plaintiff that he had to get on the stick and file the amended complaint.

But, nope, we're more generous than that.  The judge didn't sign the notice of ruling until April 12, 2018.  So does the 20-day clock start then?  Not even!  Even though that order was entered on that date, the defendant didn't mail that notice of ruling to the plaintiff until April 23, 2018.  So the 20-day clock starts running then.  And we even grant the plaintiff an extra five days because the notice is by mail.

So, on April 23, a notice gets mailed that again reminds the plaintiff that the demurrer's been sustained and he's got 20 days to file his amended complaint.  It's literally in writing.  (Though he actually has 25 days since the notice was served by mail.)  Employer says that deadline expires on May 18, 2020.  A date that comes and goes with no filing of an amended complaint.

But plaintiff does feel like filing something.  As the Court of Appeal notes:  "On May 20, 2018, plaintiff completed a case management statement on mandatory Judicial Council form CM-110 for the [upcoming] June 27, 2018 case management conference, which was filed on May 23, 2018. In item 6.c. of the form, plaintiff wrote: “As stated on April 23, 2018 at the last Settlement Conference, I am not available between May 20, 2018 and June 6, 2018 as I will be attending an Educational Conference out of the Country.” Plaintiff’s statement was filed with the court on May 23, 2018. We infer from this statement that plaintiff left the country on May 20, 2018, and would be returning June 6, 2018."

Which is all well and good.  But unless there's an amended complaint, there's not going to be much to do at the CMC, nor will plaintiff's absence out of the country after May 20 really matter.  Remember that the defendant says that amended complaint is due on May 18, 2018.

Regardless, on May 22, 2018, defendant sends an email to plaintiff that says it's going to appear ex parte to get the case dismissed once and for all since there's no amended complaint on file and the deadline has passed.  Now, personally, I don't much like sending an email like that on a date on which you know the plaintiff is out of the country.  But on May 25, defendant shows up at the ex parte -- as does plaintiff, albeit through his partner.  The trial court says:  "Yep, the deadline has passed, and no amended complaint was filed.  Case dismissed."

As I said, the Court of Appeal holds that this was an abuse of discretion since the plaintiff might well have thought that he had until the CMC on June 27 to file his amended complaint.  And there are a snippet of two of the facts that lend some support to that position.  Though, to me, they're fairly much outweighed by the repeated statements that the amendment was due within 20 days.  So my personal sense reading the (cold appellate) record is that the plaintiff knew full well when it was due and just didn't get it done.

There's also apparently one fact that's neither in the opinion nor in the briefing that's maybe consistent with this alternative view as well.  Around this same time, plaintiff filed a federal lawsuit against the same defendant alleging harassment and discrimination.  And in this suit, plaintiff again represented himself.  Guess what happened to that complaint?  It got dismissed on a 12(b)(6) motion in late 2017, with leave to amend.  Did plaintiff ask for additional time (as here) to file the amendment?  Sure, and the court granted the extension, setting a deadline of November 20, 2017 to file the amendment.  And guess whether the plaintiff filed the amended complaint by then?

Yep.  That's right.  He missed that deadline too.

So maybe judges in two separate state and federal proceedings somehow impermissibly made things too confusing for this self-represented litigant notwithstanding setting firm deadlines in writing.

Or maybe, instead, the plaintiff's just not good at complying with deadlines set by the court.

Even though, again, I'm sympathetic to adjudication on the merits, here, it seems to me like it's the latter.  Or at least that a reasonable judge could so conclude.

Monday, April 13, 2020

In re Marriage of Mohler (Cal. Ct. App. - April 13, 2020)

There are extraordinarily few appellate opinions that are as clear, coherent, and full of common sense as this one today from Justice Raphael.

It's really just an outstanding opinion.  It's a somewhat complicated issue involving how you split (1) separate property owned by one spouse before the marriage, (2) in which the community (during the marriage) pays part of the mortgage, and (3) the owning spouse lives in the property after the date of the separation.

There's a fairly clear answer already to (1) and (2).  (Though Justice Raphael does a fantastic job of explaining that answer to non-family law practitioners such as myself.)  It's (3) that makes things a bit complicated, and that trips up the trial court here.  The trial court adjusted the community percentage of ownership (obtained pursuant to (1) and (2)) of the separate property given that the owning spouse lived in the thing after the separation.  Justice Raphael persuasively explains that that's wrong; that the community might well have what's called a Watts charge for a percentage of lost imputed rent on the thing (pursuant to its preexisting percentage of ownership under Moore/Marsden), but that the fact that the spouse continued to live in the place (and pay the mortgage with his separate property) doesn't change the relevant ownership percentages.  After reading the opinion, that seems obviously and indisputably right.  The fact that the trial court thought otherwise is merely testament to what a great job Justice Raphael does of explaining why the case should come out the way it does.

It's opinions like this that make me hopeful -- in a very broad sense (at least vis-a-vis justice in the trial court and on appeal).  It's a clear rule.  It's not so difficult to apply.  And as an equitable matter, it makes eminent sense.  Yes, the trial court thought differently, and took a different approach, but that's why we put extremely smart people on the Court of Appeal.  Because sometimes, as here, they come up with a much superior approach; one that enhances justice and makes eminent sense.


Friday, April 10, 2020

Sannmann v. DOJ (Cal. Ct. App. - April 9, 2020)

Three (relatively) quick -- okay, in retrospect, maybe not-so-quick -- things about this opinion:

First, it definitely highlights that the Court of Appeal does not believe that "nunc pro tunc" means what trial courts typically think it means (at least down here in San Diego).  Yes, it means that the amended order is deemed to be entered back at the time of the original order.  But the Court of Appeal says that such orders are permissible only for clerical mistakes, not to change the actual content of a considered order.  That may well be the law, but I can promise you that that's not how they're typically used in practice.  Those are the "magic" words trial courts typically utter when they are reconsidering a prior decision.  But, apparently, those magic words ain't so magic.  Which is why (1) the trial court thought it could nunc pro tunc the defendant's guilty plea to a felony to change it to a guilty plea to a misdemeanor, and (2) the Court of Appeal said nope, no way.  The clerk didn't make that mistake; s/he wrote the plea down exactly as it was entered.  So no nunc pro tunc.

Good to know.  Though we'll see if this reminder from the Court of Appeal actually changes the use of these magic words by trial courts.  I suspect not (or at least not so much).

Second, though I take the Court of Appeal's word for what the law is with respect to nunc pro tunc orders and the like, I wonder about the last three pages or so of the opinion, which relates to a very different doctrine, which Justice Haller calls estoppel.  Is it really estoppel?  And is that really the law?  Defendant's argument seems more to me to be one regarding the nonavailability of collateral attacks than it is is about estoppel.  Defendant says (1) I changed my plea back in 2011; (2) the trial court entered an Order in 2011 that changed my plea and vacated the felony guilty conviction; (3) you knew about all this in 2011 -- indeed, the prosecutor supported my change of plea; (4) you did not appeal the thing in 2011, so (5) you can't challenge in 2011 Order in 2018.  To do that, you'd have to file an appeal (in 2011), not a collateral attack in a different case (in 2018) that challenged the validity of the 2011 order.  And good luck with that.

That's not estoppel.  It's finality.  The argument is that even if the 2011 order is (allegedly) void, you can't make that argument in a collateral case.  You've got to do it by attacking the underlying judgment in that case.  Which you can't do on appeal, since the time for appeal has expired.  Maybe you can do it in the state law equivalent of a Rule 60(b)(4) motion (void judgments).  But those have to be filed in the original case, not in a collateral attack, and you didn't do that.

That's the argument I'm seeing, anyway.  Not that the DOJ is "estopped" to deny validity since the prosecutor concurred in the change of plea (though, to be honest, there might be estoppel as well, notwithstanding what the Court of Appeal says here).  But rather that, procedurally, you've got to do this a different way that you didn't do.

Maybe, as a matter of procedure, you can challenge allegedly void judgments collaterally -- though I suspect that even under state law, the ability to do so is sharply constrained.  But I think that's the best argument that's being made here, and I'm not sure I understand the Court of Appeal's response.

Finally, and on a wholly personal level, I wonder about the petitioner here -- Frederic Sannmann.  He got convicted of robbery 23 years ago and now wants to buy a shotgun, but he can't (given that felony conviction).  I'm generally okay with that; I'd prefer that most people who commit robbery not have a shotgun, thank you very much.  But I'm also in favor of possible redemption.  And the fact that the prosecutor here appears to be more than okay with this guy getting a shotgun (as witnessed by the active involvement in the plea withdrawal stuff) matters to me.  Maybe the guy's life now is radically different?  Maybe he's very much changed his ways?  Truthfully, I'm not sure that, even then, you're in desperate need of a shotgun.  But I get that other people may disagree.  What do I feel about the equities here?  Do I have a "Come on, give the guy a shotgun" type of feeling, or do I have a "Well, my friend, you did in fact commit a felony, so sorry, we're just not all that psyched about you having a shotgun" type of feeling?  Not that it matters for the underlying legal issue.  But still.

So I looked up Mr. Sannmann, trying to find out what type of person he was etc.  After all, he has an unusual name, so shouldn't be too hard to figure out at least some basics about him.

Turns out:  He lives four blocks away from me.

Well, now.  That certainly brings the issue home, as it were.

I'm still largely ambivalent about whether the guy gets a shotgun.  Though, to be honest, I'd just as soon not have a ton of people having shotguns on the streets on which my children bike, and the fact that the guy's at least a former robber definitely isn't a point in his favor.  Still.  As my (older) kids would say:  "Whatever."  It almost certainly doesn't matter.  Not like he's likely going to be toting the thing down the mean streets of Ocean Beach firing at random anytime soon.  Decide the case on the merits, which in this case really just involve hypertechnical procedural issues that we can decide one way or the other.

Though still somewhat surprising that the guy lives four blocks down.  I didn't previously think there was a lot of pent-up former-robber shotgun demand therein.

Thursday, April 09, 2020

Schreiber v. Lee (Cal. Ct. App. - April 9, 2020)

Today's opinion:  Plaintiff falls through a skylight at a residence and is seriously injured, with several million dollars in resulting injuries.

Wait?  You've heard that one before?  In this blog, no less?  Most recently:  last year, and then two years before that?


They're not the same case.  It's just numerous different people falling through skylights.

Skylights:  The gift that keeps on giving.  To plaintiff's attorneys, at least.

People v. Maya (Cal. Supreme Ct. - April 9, 2020)

There aren't many shorter opinions than this one today from the California Supreme Court.

It'll take me almost as long to summarize the opinion as the opinion itself.  There's a statute that says you can get your misdemeanor expunged if (among other things) you've lived an "honest and upright life."  Mr. Maya was convicted of a misdemeanor, and, since then, has been either in prison or in custody for immigration reasons -- but says he's lived an honest and upright life since then, having participated in (among other things) fire camp and Alcoholics Anonymous.

The trial court and the Court of Appeal held he's not eligible because he's been in custody the whole time, so you can't really tell whether he'd be good on the outside -- essentially deciding that people in this position are categorically ineligible for relief under the statute.  The California Supreme Court granted review, and in the briefs, the Attorney General abandoned his previous position that it the statute was categorically inapplicable in such settings, arguing only that this particular person should be denied on the merits.

The California Supreme Court basically says:  "Thanks for doing all the work for us."  It unanimously holds that, consistent with the concession, yes, it's possible for someone to be eligible for relief under the statute even if they've been in custody the whole time.  Then it just simply refuses to decide whether or not this particular person is eligible for relief, remanding that issue to the Court of Appeal.

That definitely resolves the issue.  In around five very succinct pages.  Though it leaves entirely open the more central question:  "Okay, so the statute's not categorically inapplicable.  But how does one in fact apply the thing to people who've been in custody the whole time?  How much does that weigh in deciding whether they'll live an 'honest and upright life' on the outside?"

That's the harder question.  It's also the one that, practically, matters.  And on that central point, the California Supreme Court says absolutely nothing.

The price of unanimity and speed here may be that, given the concession, we've resolve the tangential dispute, but not helped at all to decide what's really at issue and what motivated the decision below.

But, hey.  It's five pages.  An easy read.

Wednesday, April 08, 2020

Communities for a Better Environment v. South Coast AQMD (Cal. Ct. App. - April 7, 2020)

I understand and appreciate that you don't want to read a 44-page CEQA opinion.  Those things are almost invariably dense, complicated, and fact-intensive.  When I have to slog through them, I often find it incredibly difficult to follow the arguments and the facts.

But read the first eight pages of this opinion anyway.

It's really a wonderfully refreshing manner of writing.  Clear, comprehensible, and easy to follow.  I know that for those who already understand the details of how crude oil is refined (e.g., the parties) it may be a boring and overly simplistic summary.  But I nonetheless found it fascinating.  Even if those "in the know" might characterize the thing as written for a 12-year old.  That's fine.  I'm a 12-year old on this topic.  And, after reading the thing, I now know much more about the basics of refineries than I did two hours ago.  As well as am able to more fully understand the remainder of the opinion, which discusses in excruciating detail the various contentions of the parties about whether it's okay to use a 98 percentile near peak figure as a baseline for the H-100 heater at the refinery in Wilmington and Carson (here in Southern California).  So mission accomplished.

It's another extremely well-written opinion by Justice Wiley.  Which is characteristic of his work.  (I'm not expressing an opinion on the merits; Justice Stratton dissents, and both have good points on the substance.)  It's written a tiny bit differently than some of his opinions.  But it's still very well done.  And perhaps it's an even bigger compliment to say that someone is able to write a memorable and outstanding opinion via a variety of different styles.

Anyway, if you want to learn more about oil refineries, today's your day.

Tuesday, April 07, 2020

U.S. v. Dominguez (9th Cir. - April 7, 2020)

This is a nice way to say it, from the final footnote of today's Ninth Circuit opinion:

"In answer to a judge’s question at oral argument, government counsel took the position that the mens rea required for attempted crimes and for conspiracy is identical. Two days later, counsel filed a 28j letter “to clarify” that the intent required for attempts and conspiracy is not the same. We acknowledge the good faith of counsel’s original answer and are thankful for the clarification. Although we look to the parties for help in determining the controlling law, we are not bound by the parties’ analyses, stipulations, or purported concessions. The law, as the saying goes, is what it is."

A different panel might have been a lot meaner about that one.  Probably helps that the government lawyer was (1) respectful, (2) right on the underlying merits (at least according to the majority), and (3) a former Ninth Circuit clerk.

Jennifer K. v. Shane K. (Cal. Ct. App. - April 7, 2020)

This published opinion contains twenty full pages of factual recitations regarding the domestic relationship between the two parties.  That's a lot of fact-specific detail for a published opinion.

On the merits, it's a good example of how the Court of Appeal is in a not-particularly-favorable position to make credibility determinations.  Especially in situations where, as here, the evidence in starkly in contrast.  Mother and her witnesses have one version of the facts.  Father and his witnesses definitely have another.  The trial judge made a call.  Maybe it was right, maybe it was wrong.  But the Court of Appeal doesn't feel like it's in a position to make a better call.  Both for doctrinal as well as practical reasons.

P.S. - Page 39, footnote 8, last sentence, fifth word.  Appears as "preva1ence" in the opinion.  Weird.  It looks like what should be a letter (an "l") is actually a number ("1").  They look almost exactly the same, but the spacing is off.  And at least on my computer, when I cut-and-past that word from the opinion, it shows up as the number "1" in the middle of the word -- and hence is labelled misspelled -- whereas a regular letter "l" would not.  Never seen that before. Can't fathom how a number would get plopped in the middle of a work, especially since the relevant number key (1) is so far from the letter key (l).  Nor, before today, did I realize just how similarly these two characters look when typed on the usual computer fonts.