Monday, August 31, 2020

People v. DelRio (Cal. Ct. App. - Aug. 31, 2020)

It's like the Wild West out here.  At least that's the conclusion that one might reasonably draw from Justice Wiley's opinion.

No one really knows what happened for sure.  The only eyewitness -- the only living one, anyway -- is the defendant, Mr. DelRio.  Mr. DelRio says that he and his cousin, Mr. Prieto, got into an argument in front of a house on a cul-de-sac, at which point Mr. Prieto drew a gun, so Mr. DelRio drew his own gun and shot him dead.  High noon on the mean streets of Los Angeles.

But the jury thought otherwise, and convicted Mr. DelRio of second-degree murder.

We do know one thing for sure:  Mr. DelRio is the much better shot.  "Prieto shot his nine-millimeter pistol 15 times but missed every time. DelRio fired his .40- caliber pistol twice. Each bullet hit Prieto. Each was fatal."

This paragraph of the opinion reminded me starkly of the Old West:

"Who drew first? That question is key. If Prieto was first with his hand on a gun, the prosecution would have a hard time disproving DelRio’s defense of self-defense, for a man with a gun in hand can be an instant and deadly threat."

Proof positive that the more things change (in the law and otherwise), the more they stay the same.

The Court of Appeal reverses the conviction on the ground that Mr. DelRio had the right to introduce testimony that the victim, Mr. Prieto, had previously engaged in domestic violence.  You generally can't introduce such evidence to establish that a defendant is guilty (to try to show that "once a criminal always a criminal") unless its a modus operandi or the like.  But the Court of Appeal says that you can introduce such evidence vis-a-vis the victim, on the theory that once an aggressor (even in a very dissimilar context like domestic violence), always an aggressor.  It'd also be an affirmative abuse of discretion, the Court of Appeal holds, to have excluded this evidence as more prejudicial than probative, even though we all know that one of the reasons defendant wanted to introduce this evidence is to show that Mr. Prieto somewhat "deserved" to die (or at least that we shouldn't be very sad about that result).

The Wild West indeed.

Thursday, August 27, 2020

Gund v. County of Trinity (Cal. Supreme Ct. - Aug. 27, 2020)

Every time I look in more depth into the backstory of today's opinion by the California Supreme Court things seems to get curiouser and curiouser.

The question presented is whether Norma and James Gund were engaged in "active law enforcement" when they responded to a request by the Trinity County Sheriff's Department to check up on their rural neighbor after the neighbor made a 911 call in which she whispered "Help me."  (If the Gunds were so engaged, they are entitled to workers compensation benefits from the vicious attack to which they were subjected once they reached that home.)  The majority, in an opinion by Justice Cuellar, concludes they were; by contrast, Justices Groban and Chin dissent.

What's surprising is not the result; rather, it's how the case gets there in the first place.

It's largely a fact-sensitive opinion.  So it's not one for which you'd normally think the California Supreme Court would grant review.  And, indeed, the losing party in the Court of Appeal did not seek review.  Even though there's presumably a large amount of damages at stake.

The matter instead first formally came to the California Supreme Court's attention pursuant a "pro per" filing by John Hsu that requested that the opinion be depublished.  Here's a copy of his letter.  There's no indication anywhere who exactly John Hsu is -- there's no California attorney by that name -- and the only address for Mr. Hsu is a P.O. Box in Berkeley.

But someone who read the opinion didn't like it and asked that it be depublished.  That's allowed, and perfectly fine.  Just not what normally happens.

Then the California Supreme Court decides to review the opinion on the merits on its own motion.  That's fairly unusual as well.  Though -- again -- entirely permissible.

But usually, the California Supreme Court isn't going to grant review of a fact-specific opinion merely in order to affirm.  What's the point?  Why not just leave the opinion as it is in the Court of Appeal?  So one typically thinks that cases granted review on the Court's own initiative (unless there's an underlying split in the Court of Appeal) are very likely to be reversed.

Nope.  Not here.  Not even particularly close.  Affirmed on a 5-2 vote.

Basically, nothing in this case played out in the normal fashion.  So interesting to see.

POSTSCRIPT - Curiouser and courioser indeed.  I'm told by multiple loyal readers that Mr. John Hsu in quite well known in certain circles, and is a quite "active" in the legal community despite being a non-lawyer. In this regard, there's also a "John Hsu" in Alameda on the vexatious litigant list.  Until now, I hadn't thought about the ability of vexatious litigants to file pro se requests for depublication or review with the California Supreme Court.  Perhaps this is one of Mr. Hsu's biggest legal victories?

Wednesday, August 26, 2020

Global Commodities Trading Group v. Beneficio de Arroz Choloma (9th Cir. - Aug. 26, 2020)

Can a California company that sells over fifty million dollars of agricultural products (e.g., rice and corn) to a Honduran company sue that company in California when it fails to pay?  Is there personal jurisdiction here?

Yes.  There is.

The Ninth Circuit reverses the contrary decision of the district court.  Correctly so.  Judge Fletcher's opinion does a very good job of describing just why there's personal jurisdiction here.  Befitting a former Berkeley law professor, I might add.

Judge Fletcher compares the present case a lot to the Supreme Court's opinion in Burger King, which is fairly.  Coincidentally enough, I'm teaching Burger King to my first-year law students in 90 minutes or so.  If any of those students can analyze that opinion even a fraction as successfully as Judge Fletcher, I'll be impressed.  Judge Fletcher definitely sets a high bar.

City of Oakland v. Wells Fargo & Co. (9th Cir. - Aug. 26, 2020)

There are not a ton of Fair Housing Act cases in the modern era.  But they've recently enjoyed a bit of a resurgence.  Like this litigation.

You can easily see why the City of Oakland sued Wells Fargo.  We've always had a problem with banks "redlining" minority neighborhoods (e.g., refusing to make loans there), and increasingly we have had a problem with "reverse redlining" -- making loans to such neighborhoods, but only at inflated predatory rates.  (I think the "reverse redlining" nomenclature is a misnomer; it's actually just a different form of redlining, not the reverse, but whatever.)  That's bad too; it results in radically increased foreclosure rates, which are bad for both the borrower as well as the surrounding community (by decreasing the property values of neighboring homes as well as having empty or dilapidated foreclosed homes sitting there).

The statistics are fairly telling:

"Using Wells Fargo’s own data, Oakland employs a number of regression analyses to show that its Black and Latino residents are more likely to receive predatory loans from Wells Fargo . . . . According to these studies, a Black Wells Fargo borrower is 2.403 times more likely to receive a predatory loan than a similarly situated White borrower. A Latino Wells Fargo borrower is 2.520 times more likely to receive such a loan than a similarly situated White borrower. Importantly, the first regression analysis controls for independent variables such as objective characteristics like credit history, loan-to-value ratio, and loan-to-income ratio that might contribute to a borrower receiving a predatory loan. In fact, this discrepancy holds true even for more credit-worthy borrowers—Black and Latino borrowers with FICO scores above 660 are, respectively, 2.261 and 2.366 times more likely to receive predatory loans from Wells Fargo than similarly situated White borrowers. Furthermore, borrowers in minority neighborhoods8 in Oakland are 3.207 times more likely to receive a predatory loan than similarly situated borrowers in non-minority neighborhoods. . . . 

A second set of regression analyses using the same data shows that Black and Latino borrowers who receive predatory home loans from Wells Fargo are far more likely to have their homes foreclosed on than White borrowers who receive non-predatory loans. Taking into account a borrower’s race and objective risk characteristics such as credit history, loan-to-value ratio, and loan-to-income ratio, the results demonstrate that predatory home loans—which are disproportionately given to Black and Latino borrowers—are 1.753 times more likely to result in foreclosure. These studies also show that a Black Wells Fargo borrower who receives a predatory home loan is 2.573 times more likely to have their loan foreclosed than a White borrower who receives a non-predatory loan. Similarly, a Latino Wells Fargo borrower who receives a predatory home loan is 3.312 times more likely to have their home foreclosed than a White borrower who receives a non-predatory loan. In fact, 14.1 percent of Wells Fargo home loans issued in Oakland’s minority neighborhoods resulted in foreclosure, as compared to only 3.3 percent of Wells Fargo home loans in non-minority neighborhoods."

The Ninth Circuit agrees with the district court that these statistics and underlying data state a valid Fair Housing Act claim.  As a result, the (long-delayed) lawsuit goes forward.

Judge Murguia's opinion is also fairly nice to Wells Fargo and its counsel in a situation in which other judges might perhaps have been more vitriolic.  For example, check out this quote on page 40:

"Wells Fargo also attacks the City’s foreclosure regression on multiple fronts, none of which have merit. First, it argues that the regression is invalid because it assumes that a borrower defaults on a predatory loan because of the loan’s high costs and onerous terms, and not because of well-recognized causes of foreclosure like job loss, medical hardships, or divorce. Including these variables in the regression analysis would likely make no difference, however, because they are not correlated with the likelihood that a person will receive a predatory loan, especially because Wells Fargo argues that these life events happen after the borrower receives the predatory loan and before they stop making payments. See Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in Reference Manual on Scientific Evidence 303, 315 (3d ed. 2011) (“Omitting variables that are not correlated with the variable of interest is, in general, less of a concern, because the parameter measures the effect of the variable of interest on the dependent variable is estimated without bias.”). By arguing that these life events explain the discrepancy in foreclosure rates between minority and White borrowers, Wells Fargo implies that minority borrowers are somehow more likely than White borrowers to get divorced, suffer from medical hardships, or lose their jobs. Because this argument has no basis in law or common sense, we conclude that accounting for these life events would not increase the plausibility of the City’s foreclosure regression analysis."

One could perhaps have described this argument in even stronger terms than having "no basis in law or common sense."  But Judge Murguia takes the high road.

Tuesday, August 25, 2020

Nutrition Distribution LLC v. IronMags Labs LLC (9th Cir. - Aug. 25, 2020)

There's no downside -- and some potential upside -- of publishing this opinion.  Judge Bress explains therein at some length (e.g., in 25 pages of single-spaced text) why filing a motion for attorney's fees after the entry of a judgment doesn't delay the deadline for filing your appeal of the judgment, unless the district court so orders.  That's very much right.

Though I gotta say that's pretty much crystal clear from just the text of the rules themselves, at least as they have existed for the past quarter century.  FRAP 4 says you've got to appeal from a judgment within 30 days of its entry, and FRAP 4(a)(4) pretty darn clearly says that that deadline is only extended by the filing of specific motions, and that a motion for attorney's fees only extends the deadline if the district court so orders under FRCP 58 (which itself makes it point clearly yet again).  So if you wan the deadline to appeal to be extended while the district court hears your fee motion, you gotta ask (and the judge has to say yes).  If that's not the case, you've only got your 30 days, so you gotta appeal now.

And, lest the text of the rules themselves leave any doubt (and they don't), the Advisory Committee to the FRCP also made the various deadlines crystal clear, saying in the Notes:

"This revision permits, but does not require, the court to delay the finality of the judgment for appellate purposes under revised Fed. R. App. P. 4(a) until the fee dispute is decided.” Fed. R. Civ. P. 58, adv. comm. note (1993). To obtain such an extension “requires entry of an order by the district court before the time a notice of appeal becomes effective for appellate purposes.” Id. The upshot is that a motion for attorneys’ fees does not extend the time to appeal “unless a district court, acting under Rule 58, enters an order extending the time for appeal.” Fed. R. App. P. 4, adv. comm. note (1993); see also Stephanie-Cardona, 476 F.3d at 705 (“The time to appeal is not extended unless the district court, pursuant to its authority under Fed. R. Civ. P. 58[(e)], orders that an attorney’s fees motion has the effect of delaying the clock for filing the notice of appeal.”); Moody, 383 F.3d at 252 (“In 1993, Appellate Rule 4(a)(4) was amended to include among the motions that will toll the time for filing a notice of appeal motions for attorney’s fees under Rule 54 if the district court extends the time to appeal under Rule 58.”)."

Pretty darn clear, no?  (Which is perhaps why the panel decided they were fully capable of resolving the appeal without oral argument -- which indeed they did.)

Anyway, Judge Bress says all of this and more.  Which is yet another reminder, in addition to all the text and the comments and the prior cases.  And more reminders never hurt.

Though, again, I would have thought the point would be obvious just from what already existed.  (But apparently not, since you've got the plaintiff here filing way too late.  Still, given what already exists, I doubt that one more reminder is going to make much of a difference; if you didn't see the old ones, you probably won't see this latest one either.)

Regardless, a long opinion that sets forth the rule, and one that lawyers should definitely follow.

(As for style, the opinion is very clear, though I'm not a huge fan of the opening line, which reads:  "Although appellant did not file this appeal to present the question whether its notice of appeal was timely, that is now the principal issue we must resolve."  A bit clunky, perhaps.)

Monday, August 24, 2020

Riverside County Transp. Comm'n v. So. Cal. Gas Co. (Cal. Ct. App. - Aug. 24, 2020)

This is an exceedingly well-written opinion.

That's no small feat, too; particularly given its length.  It's hard to write a clear, coherent, targeted and concise opinion.  It's even harder to do so when you've got to maintain that level of quality for, as here, 79 pages.

Yet Justice Ramirez does precisely that.

When I first started reading the opinion, I thought it was authored by someone else.  The opinion begins like this:

"This case presents questions that have recurred at least since the 1860s (see, e.g., Water Com’rs of Jersey City v. City of Hudson (N.J. Ch. 1861) 13 N.J. Eq. 420), when rail lines, macadamized streets, water pipelines, sewer pipelines, gas pipelines, and soon electrical lines all began to proliferate across America: When the time comes to install or to improve any one of these modern conveniences, what is to be done about another one that stands in its way? Can one force the other to relocate? And if so, who must pay for the relocation?

Obviously, each of these cases is unique in some respects. Nevertheless, we discern a theme that runs through them: You can’t stand in the way of progress.

So it is here. The Riverside County Transportation Commission (Commission) sought to extend its Metrolink commuter rail line from Riverside to Perris, using the route of a preexisting rail line that it had acquired. At five points, however, the new rail line would cross gas pipelines owned by the Southern California Gas Company (Gas Company). The Gas Company had installed these pipelines under city streets decades earlier, pursuant to franchises granted by the relevant cities and, in some instances, pursuant to licenses granted by the then-owner of the preexisting rail line. The new rail line could not be built as long as the pipelines remained in place.

The Commission terminated the licenses and demanded that the Gas Company relocate its pipelines at its own expense. The parties agreed that the Gas Company would relocate its pipelines, to other points also owned by the Commission, and the Commission would pay the estimated expenses, but only provisionally; the Commission could still sue for reimbursement, and the Gas Company could then sue for any additional expenses.

The trial court ruled that the Gas Company had to bear all of the costs of relocation — in other words, you can’t stand in the way of progress. However, it also ruled that the Gas Company had never trespassed on the Commission’s land.

Both sides appeal. We will hold that that the Gas Company did have to bear all of the costs of relocation. However, we will also hold that, at those points where the Gas Company held licenses for its pipelines, once the Commission terminated the licenses, the Gas Company could be held liable for trespass."

That's a great introduction and summary.  And the rest of the 70-plus pages are very concise and on-point responsive to the various arguments that the parties make.

I wish my briefs were written half as well as this opinion.  Well done, Justice Ramirez.

Friday, August 21, 2020

People v. Contreraz (Cal. Ct. App. - Aug. 21, 2020)

The trial court sentences the defendant, Mr. Contreraz, to a decade in prison.  But it then suspends execution of the sentence entirely, and puts the guy on three years of probation instead.

To me, that's a sentence that's relatively difficult to justify.  If the defendant really deserves ten years in prison, do we really want to have him serve zero actual time?  By contrast, if we really think that the guy deserves to walk out of court a free man -- with zero time -- shouldn't his sentence be lower than a decade in prison?

It just seems a stark, very binary sentence.

At a minimum, you'd think that someone with such a sentence hanging over his head would work very hard to make sure he didn't reoffend during the three years he was on probation.  And, apparently, that's what Mr. Contreraz did.  It doesn't look like he committed any other crimes.

Nonetheless, "on February 20, 2018, the Santa Cruz County Probation Department filed a petition alleging that Contreraz had violated his probation by failing to report, failing to participate in an educational/vocational/therapeutic program, failing to pay fines and fees, and failing to pay restitution. The trial court held a contested hearing on the petition on May 3, 2018 and found that Contreraz violated his probation. Accordingly, the trial court terminated probation and executed the previously imposed prison sentence of 10 years."

That's a lot of time -- a lot -- for some relatively minor (in the scheme of things) probation violations.

Thursday, August 20, 2020

People v. Brooks (Cal. Ct. App. - Aug. 20, 2020)

Even though it's obvious, it's still worth expressly adding:  Don't commit domestic violence in non-federal locations either.  Particularly when you've got a lengthy criminal record.

Demetric Brooks threw a pot of boiling water on his girlfriend, and then tries to push her off the balcony of the apartment after she went there to call for help.  He gets sentenced to 27 years in prison.

Sure, since it's state court, he may not end up serving all of this time.  But he's still looking at well over a decade in prison.

No small sanction.

U.S. v. Berckmann (9th Cir. - Aug 20, 2020)

Domestic violence doesn't usually result in a federal conviction.  Unless you do it in a national park in front of several witnesses.

You also don't typically see sentences for 41 months (as here) for such crimes.  But if you look a little into the backstory of the defendant you'll perhaps see why he gets over three years in prison for his offense.

Don't commit domestic violence.  Don't commit domestic violence in a federal park.

Wednesday, August 19, 2020

Kipp v. Davis (9th Cir. - Aug. 19, 2020)

There's good news and bad news coming out of the Ninth Circuit today for Martin Kipp.

Here's the good news:  The Ninth Circuit, in a split opinion, reverses his conviction and death sentence for killing Antaya Yvette Howard.  The majority opinion, written by Judge Paez, concludes that the trial court wrongly permitted the prosecution to admit at that trial evidence that, three months earlier, Mr. Kipp had alleged also killed Tiffany Frizzell.  The circumstances of both murders simply weren't sufficiently similar to establish anything like a modus operandi, so the violation deprived Mr. Kipp of due process and the admission of this other alleged murder was almost certainly prejudicial.  Judge Nguyen dissents, but Judge Murguia joins the majority opinion, so it's a new trial for Mr. Kipp.

That's the good news.

Here's the bad news.  Remember that whole "murdering Tiffany Frizzell" thing?  Mr. Kipp also gets tried and convicted of that crime, and is also sentenced to death for that.  And today, simultaneously with the other opinion, the Ninth Circuit unanimously affirms that conviction and sentence.  In an opinion by Judge Nguyen -- the dissenting judge in Mr. Kipp's other death penalty case.

You can only kill a guy once.  So, yes, there's now only once death sentence instead of two.

But that doesn't practically much matter, now does it?

(Not that any of this likely practically matters much anyway since both sentences were in California.  But still.)

U.S. v. Swenson (9th Cir. - Aug. 19, 2020)

Despite the strong disagreement between the majority and the dissent in this Ninth Circuit opinion, on the whole, I agree with Judge Smith.

Which is easier to say than you might imagine.  Since the majority opinion is written by Milan Smith and the dissent is written by Randy Smith.

It's actually a difficult question.  I'll summarize the doctrinal issue in this (fairly straightforward) way:  

Federal law says that you can attach "property" belonging to a debtor.  Whether something is "property" that belongs to the debtor is generally determined by state law.  Here, state law says that a particular type of property doesn't belong to the debtor because federal law controls and preempts state law.

Under such circumstances, does "state law" make the funds "property of the debtor?"

Reasonable minds could -- and do -- go both ways on this one.  On the one hand, state law doesn't grant the debtor any rights over the property (e.g., the debtor couldn't exercise dominion over them), so if you determine ownership under state law, you might say he has no rights.  On the other hand, you might say that it's only federal law (via preemption) that stops the state from granting property rights, and where (as here) there's a different federal law that, in the context, stops the preemption, then state law does grant a property right.

Those two hands basically summarize the dispute between the Judges Smith.  Milan Smith basically takes the first view and Randy Smith takes the second.  Hence the competing results.

Though I might take a slightly different approach than either of these jurists.  Which befits, perhaps, the fact that my last name is not Smith.

To me, Judge (Randy) Smith seems right that if state law expressly includes a particular property as an asset of a debtor, and is stopped from treating that property as an asset only by the preemptive effect of a federal law, then state law does indeed define that asset as the "property" of the debtor and it can be attached as requested here.  For example, if state law said "All animals obtained during a marriage shall be community property and deemed owned by both spouses," but federal law said that "Cows shall be deemed to be exclusively owned by the spouse whose first name is alphabetically before the other" but (simultaneously) that the cow-specific federal statute didn't apply for purposes of criminal restitution orders, then I agree that both spouses are deemed (under state law) to own the cow when you're looking at whether the cow can be seized pursuant to a criminal restitution order.  The federal law doesn't apply given its limited preemptive effect, so state law does, and pursuant to state law, both spouses own all the animals jointly.  So even though the state can't split up any cows in, say divorce proceedings, the cow is still community property (pursuant to the general state law) for restitution purposes.

This is basically a less doctrinal way of saying what Judge Randy Smith says in his dissent.

But notwithstanding my overall agreement with that doctrinal approach, that's not actually what the state law here says.  It says something different.  Meaningfully different, in my view.

As Judge (Randy) Smith concedes, all that state law here says is that assets acquired during a marriage are presumed to be community property.  That's not a categorical dictate.  And, as Judge (Milan) Smith notes, Idaho courts have decided that Social Security benefits are not community property.

But Judge Randy Smith is right that the reason the Idaho courts have said that Social Security benefits are not community property is due to the preemptive effect of federal law.  A preemptive effect that does not apply here.

Nonetheless, contra Judge Randy Smith, that doesn't mean that state law would treat Social Security as a community asset.  Remember:  It's just a presumption.  There are lots of exceptions.  The Idaho courts haven't needed to decide if that presumption applies -- or if an exception applies -- because it's a moot point given that federal law typically preempts state law anyway.  Just not here.  "Here" being a context that Idaho state courts haven't yet had to confront.

Which means the state law issue is, in my mind, open.  Now, Judge Randy Smith is right that one way to resolve that issue is to certify the question to the Idaho Supreme Court.  That'd be fine with me.  But that's also not necessarily either necessary nor definitively the right way to go.  Given that Idaho courts don't typically have to deal with this issue (due to preemption), I'm not sure it makes eminent sense to ask them the hypothetical question "Well, if there wasn't preemption, what would you do?"  Maybe it does.  But maybe not.  Federal courts could alternatively permissibly answer that question themselves.  Either way is procedurally legitimate.

Judge Randy Smith's says that state law declares Social Security benefits to be community property because that's the presumption.  To me, that's way too fast.  Again:  It's a presumption.  Not the end of the story at all.  You gotta go a lot deeper than that.  I suspect that Idaho courts -- indeed, many state courts -- would say that's not true.  That even if federal law permitted them to take Social Security benefits from one spouse and give 'em (or part of 'em) to another -- or (more accurately, and as sought here) give the Social Security assets of one spouse to a creditor of the other spouse -- the state wouldn't do so.  They'd say that, pursuant to state law, the Social Security assets of the one spouse aren't property of the other spouse.  Which would mean they're not attachable here either.

That said, I also think that Judge Milan Smith's approach is similarly too facile.  Judge Milan Smith says that state law says there's no property rights because federal law preempts, hence if you can't grab the assets under state law you can't grab them in this context either.  Again:  Not so fast.  That's because of preemption.  Whether they'd do the same thing without preemption is another question.  And as I've tried to show in the "cow" hypothetical, it's very possible for federal law that incorporates state law to obtain a different result than what happens in a state context once you remove the preemptive effect of federal law.

So what Judge Milan Smith would have to do is to decide not what Idaho courts say when there is preemption, but rather what they'd say when there isn't preemption.  Which is something that his opinion doesn't even attempt.  He thinks he already knows what state law says given what it's decided in the preemption context, but Judge Randy Smith is right that the one doesn't necessarily follow the other.  You've got to do more.

So you could ask Idaho, or you could try to predict what they'd do.  Either makes sense.

But if you're doing the latter, I think you'd have to do something a little different than either of the Smiths does here.

Both have very good points.  But there's also a little bit missing on both sides.

Tuesday, August 18, 2020

Monday, August 17, 2020

AMA Multimedia v. Wanat (9th Cir. - Aug. 17, 2020)

This is sort of a mess, no?

Judge Nelson writes the majority opinion.  He says that a porn site set up in Poland (with its servers in the Netherlands) that infringes U.S. copyrights can't be sued anywhere in the United States, even though 20% of its customers are from the United States.  No personal jurisdiction.

Fair enough.  That's not the mess.  It's what comes next.

Judge Gould dissents.  He says that there is personal jurisdiction.  But he doesn't have the votes.

Still not complicated, though.

But then there's Judge Nelson's concurrence to his own opinion.  He says that even though the panel has affirmed the dismissal of the complaint for lack of jurisdiction, the lawsuit "might" not be over, and that the district court might want to take a look at some intervening changes in international law with respect to various jurisdictional discovery issues.  The district court, he says, might perhaps want to grant some additional jurisdictional discovery in light of those legal changes, and perhaps that additional discovery might establish that there's personal jurisdiction after all.

To which Judge Ikuta files her own concurrence.  She says the lawsuit's over.  Period.  When there's a dismissal and an affirmance, that's the end of things.  No remand.  No more discovery, or anything else.  The case is over.

And, to make things more complicated, Judge Gould drops a footnote in his dissent that agrees with Judge Nelson that the case might not be over.  Which is perhaps not surprising, because Judge Gould doesn't think the case should be over to begin with, since he (unlike Judge Nelson) thinks there's jurisdiction even as the case stands now.

So what do you do if you're the district court?  There's one vote for "Yes PJ," one vote for "No PJ," and one vote for "Maybe PJ."  What happens next?

And let's say that, as a matter of doctrine, your a district judge who agrees with Judge Ikuta that when a case gets dismissed in the district court and the Ninth Circuit affirms, the case is over?  Sure, that's your view of the law.  But it seems like your superiors in the Ninth Circuit cast two votes the other way.  Law of the case?  Are you bound to follow that?

Sure, there's an easy way out -- one that the district court here might well take -- if you want to say that in your "discretion" you've decided not to re-review your prior opinion in light of the relevant legal changes that the panel described.

But is that really consistent with either the spirit or intent of today's opinion?  Seems to me like at least one judge (and probably two) definitely want you to take a look.  Can you really just say "No thanks" and be done with it?  And does that simply buy you another appeal?

Crazy stuff.

Thursday, August 13, 2020

Bolger v. (Cal. Ct. App. - Aug. 13, 2020)

This opinion by Justice Guerrero is a pretty big deal.  At least for people who buy things online at places like (and who doesn't these days?).

"Plaintiff Angela Bolger bought a replacement laptop computer battery on Amazon, the popular online shopping website operated by defendant, LLC. The Amazon listing for the battery identified the seller as “E-Life,” a fictitious name used on Amazon by Lenoge Technology (HK) Ltd. (Lenoge). Amazon charged Bolger for the purchase, retrieved the laptop battery from its location in an Amazon warehouse, prepared the battery for shipment in Amazon-branded packaging, and sent it to Bolger. Bolger alleges the battery exploded several months later, and she suffered severe burns as a result. 

Bolger sued Amazon and several other defendants . . . . Amazon moved for summary judgment. It primarily argued that the doctrine of strict products liability, as well as any similar tort theory, did not apply to it because it did not distribute, manufacture, or sell the product in question. It claimed its website was an “online marketplace” and E-Life (Lenoge) was the product seller, not Amazon. The trial court agreed, granted Amazon’s motion, and entered judgment accordingly.

Bolger appeals. She argues that Amazon is strictly liable for defective products offered on its website by third-party sellers like Lenoge. In the circumstances of this case, we agree.

As a factual and legal matter, Amazon placed itself between Lenoge and Bolger in the chain of distribution of the product at issue here. Amazon accepted possession of the product from Lenoge, stored it in an Amazon warehouse, attracted Bolger to the Amazon website, provided her with a product listing for Lenoge’s product, received her payment for the product, and shipped the product in Amazon packaging to her. Amazon set the terms of its relationship with Lenoge, controlled the conditions of Lenoge’s offer for sale on Amazon, limited Lenoge’s access to Amazon’s customer information, forced Lenoge to communicate with customers through Amazon, and demanded indemnification as well as substantial fees on each purchase. Whatever term we use to describe Amazon’s role, be it “retailer,” “distributor,” or merely “facilitator,” it was pivotal in bringing the product here to the consumer. . . . We therefore reverse the trial court’s judgment in favor of Amazon."

Wednesday, August 12, 2020

City of Portland v. U.S. (9th Cir. - Aug. 12, 2020)

You know the case is a big deal when the caption, summary, and list of lawyers and amici spans not one, not two, but 28 single-spaced pages.

The Ninth Circuit ultimately upholds a variety of FCC regulations designed to stop local governments from engaging in conduct that might make the rollout of "5G" networks more difficult.  5G requires the installation of huge numbers of "small cell" wireless facilities on telephone poles, street lights, and other elevated properties.  The FCC wants to make sure that happens.  Local governments often want to make sure those things aren't unsightly and/or regulate their installation.

The FCC wins.

Crawford v. Commission on Prof'l Competence (Cal. Ct. App. - Aug. 11, 2020)

What do you think about this one?

Here are the facts:

"On February 16, 2017, RHS students protested in support of 'A Day Without Immigrations,' a nationwide boycott that sought to illustrate the economic impact of immigrants in the United States and to protest President Donald J. Trump’s immigration policies. RHS’s student body is approximately 90 percent Hispanic/Latino, and about a quarter of its students boycotted attending school in support of the protest.

On the morning of “A Day Without Immigrants,” another teacher e-mailed staff asking about the high rate of absences in her classes. Crawford responded, “The PROFESSIONAL staff members and SERIOUS students are here today, boycott be darned.”

Later that day, RHS teacher Geoffrey Greer posted the following on Facebook: “Well. A day without immigrants. Perhaps all the missing workers in all the various industries out there had the intended impact and sent the desired message. I don’t know. As for the public school system, having my class size reduced by 50% all day long only served to SUPPORT Trump’s initiatives and prove how much better things might be without all this overcrowding. [¶] That’s what you get when you jump on some sort of bandwagon cause as an excuse to be lazy and/or get drunk. Best school day ever.” Crawford commented on Greer’s post, “Cafeteria was much cleaner after lunch, lunch, itself, went quicker, less traffic on the roads, and no discipline issues today. More, please.” Several other teachers made similar comments about how the protesting students’ absence had positive effects, such as smaller classes, fewer “troublemakers,” increasing a class’s “cumulative GPA,” and making instruction easier.

Two students commented on Greer’s post to express their disappointment and disagreement with the post and the teachers’ comments in the thread. A student responded by saying, among other things, “[Y]ou guys are public figures and many students are taking these comments in a negative way . . . . I myself am a son of an immigrant and I do feel as some of these comments are directed towards my cohort.” Immediately after this comment, a former RHS student said, “Let’s not focus on the teachers here, a counselor, who I looked up to made a remark. Very very disappointing.” The counselor the student was referring to was Crawford.

Within minutes, Crawford responded, “Disappointing is to think that some of my students still don’t get it about education. Staff members who are sympathetic to the cause were at school today. The kids who care were there. The professional staff members were there. What I saw today was more proof, just like last year, that boycotts, especially of education, aren’t the answer. It just keeps the ones who need it the most as useful fools.”

Another former RHS student responded to Crawford’s comment shortly afterward. He said “[Y]ou don’t understand what it feels like to have counselors that belittle what you want to be. That when you’re trying to aim high, they tell you that you can’t.” Crawford responded directly to the student, stating “[A]ny counselor who chops you off at the knees like that shouldn’t be a counselor. That’s why today upset me so much. I want my students to go out there and stand proud. Education is one way to do that.” Someone immediately replied to Crawford’s comment with “[Crawford], in your previous statement above you said ‘more please!’, meaning you want more of your students to not keep coming to class like today. Why contradict yourself now?”

Crawford did not reply, but elsewhere in the post’s thread, she commented a final time by saying, “And I’m the great-granddaughter of immigrants. I care. But this isn’t the way to go about effecting change. My post was meant to be snarky. Get over yourselves.” Crawford then logged off Facebook for the night."

There's the relevant exchange.  What do you think?  Legitimate First Amendment debate?  Racist and demeaning tripe?  Permissible?  Improper?  What's your reaction?

Ultimately, this exchange gets a lot of attention.  It "went viral" and prompted more discussion, protest, angst, vitriol, etc.

The person at the center of this exchange -- Patricia Crawford -- gets fired.  She's dismissed on the ground that her conduct was "immoral," which (pursuant to precedent), if true, is indeed a permissible basis for being fired.

Agree?  Disagree?  Is what Ms. Crawford said immoral?

The Court of Appeal unanimously says "Yes."

Among other things, the opinion shows, I think, how the world has changed in the past half-century.  Fifty years ago, teachers were fired for "immoral" conduct because they were gay, lived alternative lifestyles, etc.  We don't do that (much) anymore.  More to the point, fifty years ago, there's no way Ms. Crawford would have been fired for similar statements.  The comments would not have been viewed as immoral.  Perhaps most significantly, in the 60s and 70s, at least, there would have been broader view -- supported by both left-wing intellectuals and by cases like Tinker and its progeny -- that teachers and other school participants have a broad First Amendment right to engage in public discourse.  Even if such public communications resulted, as here, in a segment of broader community reacting negatively.

The world's changed.  Whether for overall better or worse is obviously a matter of debate.

Anyway, Ms. Crawford is fired for her speech and the Court of Appeal says that's fine.  There are obviously types of speech that legitimately get you fired; I won't expressly articulate the hypotheticals, but you easily can come up with 'em yourself.  People can debate whether Ms. Crawford's speech falls on one side or another of the relevant normative line.

But, descriptively, after today's opinion, we can definitively say that the California judiciary believes that it falls on the "immoral" side of that equation.

Tuesday, August 11, 2020

People v. Harrell (Cal. Ct. App. - Aug. 10, 2020)

This seems about right.  Good police work by Fairfield Police Officer Kevin Anderson.  That's just what I'd want an officer to do upon seeing a guy passed out in a vehicle with no license plates in a residential neighborhood at 3:00 a.m. 

The sentence for having (presumably stolen) identify information for three people seems perhaps a bit long -- almost 13 years.  But still.  Good police work.

People v. Morales (Cal. Supreme Ct. - Aug. 10, 2020)

I'm persuaded that Alfonso Morales committed (or played a substantial role in committing) the horrific murders at issue in this case, for which he's sentenced to death.

Though for the life of me I can't figure out why Mr. Morales -- who seems to have had no criminal history at all, and no "real" motive for the murders -- did what he did.  Or why he did all the bizarre things to the murder scene.  Many death penalty cases are relatively straightforward, at least in terms of motivation or why and how things went down as they did.  By contrast, this one's just bizarre.

When reading the opinion, you obviously feel bad for the murder victims and their families.  One person who may also be overlooked -- even though she's mentioned (briefly) twice in the opinion -- is the sister of Mr. Morales (the defendant).  One of her brothers was killed in the horrific 1996 rock slide in Yosemite; you can see a comment by her in a story about that slide here.  Now she sees another brother convicted of four gruesome murders -- including the killing and sexual assault of an eight-year old girl -- and sentenced to death (and, regardless of whether that sentence is actually carried out, who'll undoubtedly die in prison).

Horrible for all involved.

Monday, August 10, 2020

People v. Ogaz (Cal. Ct. App. - Aug. 10, 2020)

This is a really well-written and well-reasoned opinion.  That's somewhat surprising given that it was initially unpublished.  Often a justice will save his or her best written work for published opinions.  Not here.

I was also surprised when I reached the end of the opinion and saw that it was written by . . . Justice Bedsworth.  It's not that he's typically a slouch in the writing department; far from it.  Rather, it's that the opinion wasn't particularly written in his inimitable style.  I suspect that there are reasons for that; in any event, the author did an outstanding job, in my view.  The writing is crisp and clean.

Though then, after discovering (on page 19) that the opinion was from Justice Bedsworth, I then got (at the end) to the page or two of amendments that were subsequently added to the opinion once the Court of Appeal granted the request to publish.  There's that unmistakable Justice Bedsworth style.  Including but not limited to the footnote.  Couldn't be anyone else.

Then I also looked back at the caption (and docket) and discovered that the Deputy Attorney General who argued the case was none other than a friend and former professorial colleague at the University of San Diego -- Junichi Semitsu.  Junichi is a fascinating fellow (just a taste here) and wonderful lawyer.  But he didn't prevail in this case, so:  Total Loser.

Though I suspect that Mr. Ogaz will be convicted again on remand.  This time with the right lab technician on the stand to confirm (as required by the Confrontation Clause) that, yep, that's indeed heroin and meth that they seized from the guy.

People v. Mirmon (Cal. Ct. App. - Aug. 10, 2020)

This morning's opinion by Justice Miller has no introduction at all -- it just plunges right into "FACTUAL AND PROCEDURAL HISTORY" and "A. PROCEDURAL HISTORY."  That's a fairly unusual style.  It's not like the opinion is overly long; it's seven (double-spaced) pages total, including the caption.

The brevity of the opinion is also a little unusual given that it expressly creates a split in published opinions of the Court of Appeal.  Justice Miller's opinion holds that trial courts are not allowed to impose concurrent sentences for multiple-strike offenses committed in prison; rather, it's required that any such sentences be consecutive to the prior offense.  The opinion admits that the Fifth District decided otherwise in People v. Arant (1998) 199 Cal.App.3d 294.  But today's opinion from the Fourth District says that Arant was wrongly decided, so goes the other way.  Opinions involving such a split are typically longer and more detailed than today's opinion, if only because there's a heightened probability of review by the California Supreme Court to resolve the split.

One other thing that I found interesting.  There's a prior -- unpublished -- opinion that goes the same way as today's opinion:  People v. Rodriguez, back in 2014.  That unpublished opinion was -- like the opinion from today -- rendered by Division Two of the Fourth District.  Though that one was written by Justice McKinster.  Today's opinion nowhere mentions or cites Justice McKinster's prior opinion.

But check out the text of the respective opinions.  It's pretty much word-for-word, yet unattributed:

Justice Miller (today's opinion):

"We decline to follow Arant and conclude the trial court had no discretion to impose a concurrent sentence. “The determinate sentencing law treats in-prison offenses differently than out-of-prison offenses. (People v. McCart (1982) 32 Cal.3d 338, 340[.]) The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ ” (People v. White (1988) 202 Cal.App.3d 862, 869.) “Section 1170.1[, subdivision (c)] applies to felonies committed when the defendant is confined in a state prison. The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ ” (Id. at pp. 869-870; see also In re Tate (2006) 135 Cal.App.4th 756, 764-765; People v. Cardenas (1987) 192 Cal.App.3d 51, 58; see generally People v. Langston (2004) 33 Cal.4th 1237, 1242-1244.) . . . . [B]ecause we find that the trial judge had no discretion to sentence defendant to a concurrent term for his in-prison possession convictions in the original sentencing on the Riverside Case, the trial court properly sentenced defendant to a term to be served fully consecutively to the sentence defendant was already serving."

Justice McKinster's prior opinion:

"[W]e decline to follow Arant and conclude the trial court had no discretion to impose a concurrent sentence. “The determinate sentencing law treats in-prison offenses differently than out-of-prison offenses. (People v. McCart (1982) 32 Cal.3d 338, 340....) The difference is simple and understandable. The Legislature wanted in-prison crimes to be punished more severely than crimes committed ‘on the outside.’ (Ibid.)” (People v. White (1988) 202 Cal.App.3d 862, 869 (White ).)  “Section 1170.1[, subdivision] (c) applies to felonies committed when the defendant is confined in a state prison. The statutory scheme makes clear that such felonies, i.e., those felonies committed in prison, are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon ‘the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense.’ [Citations.]” (White, supra,202 Cal.App.3d at pp. 869–870; see also In re Tate (2006) 135 Cal.App.4th 756, 764–765; People v. Cardenas (1987) 192 Cal.App.3d 51, 58; see generally People v. Langston (2004) 33 Cal.4th 1237, 1242–1244.) Because the trial judge had no discretion to sentence defendant to a concurrent term for his in-prison possession conviction, he properly sentenced defendant to a term to be served fully consecutively to the sentence defendant was already serving."

I know the Court of Appeal's not generally supposed to cite unpublished opinions.  But when you're cutting-and-pasting verbatim someone else's words, typically you've got to give 'em some credit, no?  (Some might say that Justice Miller was on the horns of a difficult dilemma here, torn between being critiqued for either (a) improperly citing an unpublished opinion, or (b) plagiarizing someone else's words.  Though one solution might have been to paraphrase the prior case or elaborate on its reasoning with original language.)

Anyway:  Something you don't necessarily typically see.

P.S. - When I preview this post it looks like the color's all messed up at the end; that's a consequence of cutting-and-pasting the text of Justice McKinster's opinion from Westlaw.  I've tried to fix it but can't; if I was more of a perfectionist, I'd just retype the whole thing.  But I'm not ; I think I'll instead just keep it a (slight) mess and move on.  Sorry about that.

Thursday, August 06, 2020

In re S.P. (Cal. Ct. App. - Aug. 6, 2020)

Yeah, this is a really hard one.  *Sarcasm Alert*

Father and Mother don't want to get their children vaccinated.  Both children have been declared dependents of the court, and for good reason.  Among other things:  "DSS filed a juvenile dependency petition (§ 300, subd. (b)(1)), alleging Father and A.P. (Mother) neglected and failed to protect their children. Mother had a history of substance abuse and mental illness. She had recently given birth to E.P. Both Mother and E.P. had tested positive for methamphetamine and marijuana. DSS alleged Father had a history of substance abuse and mental illness and was recently incarcerated."

Given this history, I'll be honest and say that I'm at least slightly inclined to not give the parent's desires on this issue a massive amount of weight.  (*Understatement Alert*)

As to whether the children should be vaccinated, the trial court has to weigh the testimony of two medical professionals.  On the one hand, there's the physician who's currently treating the children.  She says they should be vaccinated.  "[T]he DSS social worker testified that both S.P.’s and F.P.’s 'pediatricians are recommending that they receive their vaccinations.' DSS also submitted letters from Dr. Kronstad, a current treating doctor of the children. She was a board-certified pediatrician. She stated, '[N]o medical condition currently exists that would prevent [the children] from receiving vaccinations as recommended by the [American Academy of Pediatrics] and CDC.' She described the specific vaccinations that S.P. and F.P. needed to bring them “up to date” on their vaccines. She set forth a timetable for the specific types of shots they needed and the time periods during which they had to be administered. This was strong evidence to support findings that the children needed vaccinations and the exemptions were not currently valid. There is usually 'no better evidence of the state of one’s health” than the medical opinions from the patient’s current treating doctor.' (Gunn v. Employment Development Dept. (1979) 94 Cal.App.3d 658, 664, fn. 6.)"

On the other hand, there's a letter from Dr. Johnnie Ham. Here's what the opinion says about him:

"Father told DSS that on March 11, 2018, Dr. Johnnie Ham had issued letters stating his determination the children were exempt from vaccinations. Ham wrote that the children have 'a medical reason not to vaccinate,' but did not state what that medical reason was. . . . Ham testified he saw the children once in March 2018 for 45 to 60 minutes. He said he is not a pediatrician and did not have medical records from the children’s other doctors. His examination was 'very brief.' He checked the children’s temperatures and their eyes and had them move their arms. . . . 

Ham was asked what was the medical condition that supported the exemptions but did not describe that condition. He said, “The law does not require that the child have a medical condition. . . . [It] allows us to consider both the individual’s medical history as well as family history.” In response to a question about the children’s medical condition that supported an exemption, Ham responded, “I did not see a medical condition directly with either child.” The parents said members of the family have had “allergies,” “asthma,” “autoimmune disease,” and “mental disorders, including autism.” One family member had “a negative vaccine reaction.”

Ham was asked, “Are you aware that the safety for vaccinations is considered reliable?” Ham: “No, I’m not aware of that.” In 2018, Ham issued 350 exemptions. For two children, he charges a $290 fee for an exemption examination. . . .

The juvenile court said, “The reality is that Dr. Ham issued the exemption on March 11, 2018, after receiving a request for an exemption supported solely by an uncorroborated or unverified family history provided by the parents, and without anything resembling a medical evaluation or examination of the minors.” (Italics added.) “[Ham] does not take any blood or tissue samples or anything of that nature. He does not conduct any neurological exam. . . . He testified that neither child had an existing medical condition at the time of his examination.” (Italics added.) The court concluded, “To rely solely on the information provided by a parent (the ‘family history’) without any rudimentary medical evaluation is simply ripe for abuse and patently wrong.” . . . .

Ham testified that he had been disciplined by the Medical Board of California for 'providing false documentation' and that he was on probation for 10 years."

Hmmm.  Which one would I find more credible?  The board certified pediatrician who's the children's treating physician?  Or the exemption-writing hack who's not even a pediatrician and is on disciplinary probation?

Boy.  What a toughie.

U.S. v. Bundy and Engel (9th Cir. - Aug. 6, 2020)

It's a good day in the Ninth Circuit for both Clive Bundy as well as one of his followers.  Conviction of the latter thrown out and dismissal of charges with prejudice against the former affirmed.

Tuesday, August 04, 2020

Graylee v. Castro (Cal. Ct. App. - Aug. 4, 2020)

I like the fact that the Court of Appeal decided to publish this opinion today.  Because it helps make clear what lawyers have to do to circumvent the rule articulated therein.

It involves a pretty common situation, in mediations and elsewhere.  Two sides are litigating against each other and they ultimately want to strike a deal that compels one side -- typically the defendant -- to do something as a means of resolving the case.  Maybe the defendant (allegedly) owes $50,000 but plaintiff is willing to settle for $20,000 if he gets paid within a week.  Maybe (as here) the defendant (allegedly) owes $27,000 in overdue rent but the plaintiff is willing to waive the back rent if defendant simply gets out of the house within a week.  So the parties stipulate to a judgment -- typically, for the full amount of money requested in the complaint -- but agree that the plaintiff won't file it if the defendant does what's required by the settlement agreement; e.g., move out of the house or pay the $20,000 settlement figure within a week.

These types of settlements work.  They offer something to both sides.  It's a way to strike a deal between parties that don't trust each other; typically, for good reason (e.g., they've already breached a prior promise to pay).  The settlement provides a carrot and a stick; the carrot's the discounted settlement amount, and the stick is the stipulated judgment if the defendant doesn't do what's required by the agreement.

Today's opinion removes the stick.

Justice Moore holds that, in most cases, the "stick" (the stipulated judgment) will be an invalid "liquidated damages" provision.  The Court of Appeal's theory is that the amount of the loss -- e.g., the stipulated judgment amount -- will almost never measure the damages that flow from the failure to pay (or the delay in paying) the discounted settlement amount.  So even if the defendant fails to make, say, the $20,000 settlement amount as promised, that only harms the plaintiff to the tune of $20,000 and change; anything above that -- in particular, the $50,000 stipulated judgment -- is an unenforceable "penalty."

And, of course, that's precisely what it is.  A penalty.  And deliberately so.  It's designed to coerce the parties into doing what they promised.  But so are (invalid) liquidated damages.  Hence the holding of the Court of Appeal.

So does this mean no more provisions like these?

Nope.  It just means you've got to "paper" the transaction in a particular way.

To reach the result it wants, the Court of Appeal has to distinguish appellate cases that have gone the other way and that have upheld similar types of "coercive" settlement agreements.  And it does so by saying that in those cases, the defendant "admitted" that it was liable for the full amount.  So, Justice Moore says, those weren't really "penalties" -- instead, they were full-on compromises, thus valid.

One might reasonably respond:  "But doesn't stipulating to a (conditional) judgment for the full amount claimed basically admit that you're responsible for that amount?"  Justice Moore says:  "No."  That's not enough.  You've got to actually say so.  Explicit's good enough; implicit isn't.

Okay.  We can do that.

So, from here on out, when you enter into a conditional judgment, just make sure that there's a line in there that says "Defendant hereby agrees that it's in fact liable for $X (the full amount), and that said amount is in fact due and owing, and agrees to a stipulated judgment in that amount in the event it does not satisfy the conditions set forth herein."   Maybe repeat that first clause in a much of different ways just to make sure.

Do those words actually matter?  Not really.  Defendant's already willing to stipulate to the judgment amount.  What's the big deal about saying -- accurately or not -- that they "admit" that they're liable?  As long as defendant pays what's owed by the settlement agreement, the "admission" means nothing.  By contrast, if defendant doesn't pay, the "admission" doesn't harm them any more than the stipulated judgment.  It's just words.

So that's what you do.  It's like the old days in England:  Just make sure you write down the correct "magic words" and you're able to accomplish your objectives.  But absent those magic words, the deal runs afoul of the law.

So remember those magic words.  Important.

Admittedly, this particular case does seem a situation in which there really is a "penalty" at stake.  The settlement deal says that the defendant will get out of the house by 3:00 p.m. on a given day, lest the stipulated judgment amount ($27,000) be filed, and it sounds like the defendant got out of the house at something like 3:15 p.m. that day.  That's technically a breach, hence the prompt filing of the stipulated judgment amount -- presumably by a landlord none-too-pleased at having been stiffed for the $27,000 in the first place.

Yes, that amount was (probably) due.  But, yes, it also sounds like a stupid penalty for being 15 minutes late.  Hence why the Court of Appeal wants to end up the way it does.

But, remember, yet again:  Magic words would have made the amount not an unenforceable penalty.  So long as the defendant had expressly admitted in the settlement agreement that he owed the $27,000, then it'd be a true "compromise" and hence valid.  But not if there are no such magic words.

An important lesson for litigators (and mediators) everywhere.

U.S. v. Kuzma (9th Cir. - Aug. 3, 2020)

Those are some nice-looking color pictures in Judge Collins' opinion.  Check out pages 5 through 9.  A bright-blue background, even, for the photographs of the alleged machine gun at issue.

Monday, August 03, 2020

Davidson v. O'Reilly Auto Enterprises (9th Cir. - Aug. 3, 2020)

Reasonable minds might disagree about whether Judge Ikuta's opinion is correct or whether Judge Christen's dissent has the better of the argument.

Regardless, one can't help but leave the opinions with a firm sense that Judge Klausner entered the procedural orders he did here (e.g., denying stipulated agreements to extend a super-rapid class certification deadline) with a firm eye towards making sure that the class never got certified.

Whether that's a case-specific preference or applies to class actions more generally is, again, an issue on which reasonable minds might disagree.  But this was definitely a case where procedural means were used (IMHO) to accomplish a particular result.