Thursday, October 29, 2020

Olson v. Lyft (Cal. Ct. App. - Oct. 29, 2020)

Here's an interesting way to write an opinion.  You typically don't see the identities of the appellate counsel getting so much play, particularly so early in the opinion.

The style you're used to seeing in a case like this would go something like:  "Lyft claims that Brandon Olson must bring his Private Attorney General Act ("PAGA") claims in arbitration, but we agree with the California Supreme Court and a recent opinion from the Court of Appeal that arbitration for PAGA claims cannot be required."  Maybe you name the cases; whatever.

Instead, here's how Justice Richman begins his opinion:

"Brandon Olson is a driver for Lyft, Inc. (Lyft), whose terms of service include an agreement he could not bring a Private Attorney General Act (PAGA) claim in court and that disputes with Lyft must be resolved by individual arbitration. Olson sued Lyft alleging six PAGA claims, which Lyft petitioned to compel to arbitration. The petition acknowledged that Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 (Iskanian) precluded enforcement of PAGA waivers, but asserted that Iskanian was wrongly decided and in any event was no longer good law in light of the 2018 opinion of the United States Supreme Court in Epic Systems Corp. v. Lewis (2018) 138 S.Ct. 1612 (Epic Systems). The trial court denied the petition in a comprehensive order rejecting Lyft’s arguments.

Lyft appeals and, represented by two prominent law firms, provides us with 96 pages of briefing, beginning with an argument as to what we “must follow” from United States Supreme Court opinions, going on to reassert its unsuccessful arguments below. Lyft’s opening brief cites 12 United States Supreme Court cases, two cases from the Fifth Circuit Court of Appeals, and, indeed, a 2013 case from an Ohio District Court. Olson, represented by a well-known appellate boutique, provides 54 pages of his own, included within which is a scholarly exposition of California jurisprudence dealing with arbitration.

We need not engage in any similar discussion, as we reject Lyft’s position based on Correia v. NB Baker Electric, Inc. (2019) 32 Cal.App.5th 602 (Correia), an opinion that thoughtfully analyzed—and rejected—the identical argument Lyft makes here. Other post-Epic Systems cases have agreed, including the only two other published Court of Appeal decisions and numerous California federal cases. Accordingly, we affirm the order denying arbitration."

That second paragraph is unusual.  Lots of focus on the identity of the lawyers.  One side is represented by "two prominent law firms."  (If you're interested, he's talking about Horvitz & Levy and Van Nest & Peters.)  The other side's represented by "a well-known appellate boutique."  (That's itself an interesting claim.  There's actually two firms that represent Olson: Olivier Schreiber & Chao and Outten & Golden. The former bills itself as a "civil rights" firm and the latter as an employment law firm.  You can likely guess as to which firm Justice Richman was thinking as the "appellate boutique," but still, it's unusual to focus on the lawyers, and even more unusual to mention one of the two listed counsel.)  Then there's the references to the briefs, including a detailed list of just how many cases were cited and from where. ("12 United States Supreme Court cases, two cases from the Fifth Circuit Court of Appeals, and, indeed, a 2013 case from an Ohio District Court.")

I'm not saying that's an absurd way to begin an opinion.

It's just not the usual approach.

Wednesday, October 28, 2020

U.S. v. Singh (9th Cir. - Oct. 28, 2020)

You can tell that the opinion is going to be a fairly lengthy one when the summary prepared by the staff of the Ninth Circuit is, as here, six pages long (and replete with innumerable bullet points).

Among other things, the opinion resolves whether legally admitted foreign citizens have a constitutional right to (1) possess guns, and (2) make political contributions in U.S. elections.  (The defendant here was admitted on a tourist visa, but came to the United States pretty much weekly.)  The Ninth Circuit says that, no, no such rights exist.  They're civic and political rights.  You can limit their exercise to citizens.

The case arises from a high-profile criminal prosecution in San Diego.  Ravneet Singh made lots and lots of (illegal) political contributions to various San Diego officials in an attempt to ensure that city officials allowed him to develop the Chula Vista waterfront.  There was an era in which San Diego was a hotbed of corruption and other official misconduct.  The more things change, the more things stay the same.

Monday, October 26, 2020

Dix v. Live Nation (Cal. Ct. App. - Oct. 26, 2020)

Someone who puts on an electronic music festival -- here, Live Nation -- owes a duty to protect its patrons from overdosing on MDMA.

Friday, October 23, 2020

People v. Foley (Cal. Ct. App. - Oct. 23, 2020)

Jeffrey Foley is the grandfather of identical twins.  He molests one of them, who immediately reports it, and he's tried and convicted and sentenced to three years in prison.

After that conviction, approximately two years later, the other identical twin reported that she too had been molested by her grandfather.  He's tried and convicted again and is sentenced to 60 years in prison.

It seems at least a bit anomalous that you get 3 years in prison if you've molested one person but 60 years if you've molested two.  In the normal circumstance, you'd generally think that such sentences would meet somewhere in the middle; either a longer sentence for the one molestation or a shorter sentence for two molestations.

I get that you want to punish repeated molesters more.  And, for good reason, criminal sentences aren't necessarily linear:  two offenses don't get you exactly twice the sentence.

Still, 3 and 60 is quite a gap.

Thursday, October 22, 2020

U.S. v. Alhaggagi (9th Cir. - Oct. 22, 2020)

Both the majority and the dissent agree that Amer Alhaggagi is a messed-up kid.  They just disagree over the nature of the mess.

Judge Smith thinks he's a braggart 21-year old online troll.  He was born in Lodi, California to Yemeni immigrants, but after 9/11 his mother moved him and his five siblings to Yemen, while his father stayed in the United States.  Leaving Alhaggagi shuttled between Yemen and California.  "In both places, Alhaggagi had a strained relationship with his parents, who raised their children in an observant Muslim household. In 2009, Alhaggagi and his mother and siblings returned to California to live with his father. Although he was raised in a Muslim home, Alhaggagi was not religious and adhered to few religious traditions. As an escape from his home life, Alhaggagi began spending a lot of time on the Internet, where his father had no insight into his activities. He developed a sarcastic and antagonistic persona online, provoking people by comments he made on YouTube videos. . . . He chatted both in Sunni group chats sympathetic to ISIS and Shia group chats that were anti-ISIS. He trolled users in both groups, attempting to start fights by claiming certain users were Shia if he was in a Sunni chatroom, or Sunni if he was in a Shia chatroom, to try to get other users to block them. He was expelled from chatrooms for inviting female users to chat."

Eventually, Alhaggagi gets noticed by the FBI.  The big difference between the majority's conception and the dissent's characterization of his conduct is an underlying dispute about whether what Alhaggagi was serious when he said and did what he did.  Judge Smith essentially thinks that Alhaggagi was "all talk" and was just continuing to be the online jerk he usually was -- just out to outrage people and play the "big man."  Whereas Judge Hurwitz thinks, no, that's not really what he was doing, he was serious and genuinely interested in terrorism and terrorist attacks.

Maybe the most obvious -- and interesting -- difference between the majority and dissent is in how they treat how Alhaggagi eventually ends up.  Here's how Judge Smith describes what happened:

"On a third occasion, the UCE [undercover informant] met again with Alhaggagi at the storage locker, where the FBI had left several barrels of mock explosives. In the moment, Alhaggagi expressed excitement upon seeing the explosives, and on the drive back, he pointed out places he believed would be good targets for bombs. After that meeting, however, Alhaggagi began distancing himself from the CHS on Telegram and the UCE. He told the district court that upon seeing the explosives, “it only hit me at that moment that I’ve been talking to these people for far too long and had no idea what I’ve gotten myself into and now I’m kinda freaked out . . . I never took it seriously and I never realized how serious he was until he was ready to make a bomb (so I believed at the time) which I wanted no part of!"

From late August to September 2016, Alhaggagi skipped meetings intended to practice the attacks with the UCE, and ignored many attempts by the UCE to contact him. On September 23, 2016, the UCE approached Alhaggagi on the street and asked if they could share a meal. Alhaggagi agreed, but said he needed to get something from his house first. He never returned to meet the UCE, and they never communicated with each other again."

This is consistent with Judge Smith's perception of the situation:  Alhaggagi was a braggart and troll, but when he actually realized that things were serious and real, he predictably slinked away.

Whereas Judge Hurwitz's view is starkly different.  His description of what happened is contained in a single sentence, which says:  "Alhaggagi broke off contact with the undercover agent and the FBI source in mid-August 2016 after concluding that the undercover agent worked for the government."

That's a very different conception of what went down.  Consistent with their competing views about Alhaggagi's personality and intent.

The district court sentenced Alhaggagi to over 15 years in prison.  Most of that comes from a "terrorism enhancement."  Judge Hurwitz thinks that's fine.  The majority remands to have the district court give it another shot.

Parenthetically, I did not realize that one of the biggest-impact ways in which the Sentencing Guidelines treat terrorism offenses is by manipulating the defendant's criminal history (an issue that's relegated to a brief footnote of the opinion).  Here, Alhaggagi in fact has no real criminal history, so is at Category I.  But Section 3A1.4 of the Guidelines says that for any terrorism offenses, you not only increase the base level of the offense to 32 (which is often a huge increase), but also artificially increase the defendant's criminal history to the worst possible level (Category VI).

That seems weird to me.  Seems to me like we should care about someone's actual criminal history, not one that's deliberately fake.  If you want to increase the punishment, fine, go ahead and increase the base offense level for the offense (which the Guidelines already do), and if that's still not good enough for you, increase it some more.  Pretending that the person has had a lifelong series of serious criminal convictions when he is, in fact, a 21-year old kid with no prior criminal history just seems to me very much the wrong way to go about it.    

Wednesday, October 21, 2020

People v. Wilson (Cal. Ct. App. - Oct. 21, 2020)

Don't send kiddie porn over gmail.  Google looks for it.

It's a fairly chilling case from San Diego about how various women get "groomed" into participating in child pornography.  The person who groomed 'em gets 45 years to life; I very strongly suspect he'll die in prison (and, given the typical treatment of these offenders in prison, that his experience there will not be pleasant in the slightest).  The actual woman who engaged in the sex offenses with the child is sentenced to . . . 10 years of probation.

Every little step along the way, I'm sure, seemed just a tiny bit "worse" than the last step.  Yet there you are at the end, sexually abusing a child and taking pictures of it.


Guerrero v. Hestin (Cal. Ct. App. - Oct. 21, 2020)

"In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation. The next year, that same judge and one other authorized 640 wiretaps, the rest of the state authorized 505, and the 640 wiretaps comprised roughly 15 percent of all wiretaps in the country."


Like the Court of Appeal, that facially seems to me to indicate that something might well have been wrong with the way those wiretaps were submitted and approved.

Very wrong.

Tuesday, October 20, 2020

Ortega-Lopez v. Barr (9th Cir. - Oct. 20, 2020)

What a difference the panel makes.

Agustin Ortega-Lynch gets caught helping to organize a cockfight, and the United States wants to deport him to Mexico as a result.  The dispositive question is whether aiding and abetting a cockfight is a "crime involving moral turpitude" ("CIMT").  His case comes up to the Ninth Circuit in 2016, and in an opinion written by Judge Owens, here's what the Ninth Circuit had to say:

"Ortega-Lopez came to the United States without permission in 1992. He has three children who are United States citizens. In 2008, Ortega-Lopez pled guilty to one misdemeanor count of cockfighting. He was hardly the Don Corleone (or even the Fredo) of this enterprise. Rather, as the government’s sentencing position detailed: “his involvement in the overall crime was relatively minor compared to” the other defendants in the case. His punishment—one year of probation with no jail time—reflected his limited culpability. He has no other convictions. . . .

Congress has declared cockfighting a scourge that warrants prosecution, and we have no quarrel with that. Yet that is not our inquiry here—rather, we must determine whether the conviction at issue is a CIMT. In answering this question, the government urges us to hold that cockfighting is a vile and depraved practice, which in its view ends the story. It does not. . . .

'[N]on-fraudulent crimes of moral turpitude almost always involve an intent to harm someone, the actual infliction of harm upon someone, or an action that affects a protected class of victim.' [Cite] . . . . [T]he crime at issue involving harm to chickens is, at first blush, outside the normal realm of CIMTs."

Despite this language (and view on "first impression"), the panel elects to remand the case to the BIA to allow it a chance to explore whether aiding and abetting cockfighting is indeed a CIMT.

On remand, the BIA holds to its conclusion that it is.  Hence back up to the Ninth Circuit it goes.

Normally, you'd expect the same panel to hear the (renewed) appeal.  But that doesn't happen here.  The case instead goes to an entirely new panel.  (I'm not sure why.  Maybe the old panel didn't want to keep the case.  Maybe none of the parties asked 'em to do so.  Regardless:  new panel.)

Once it's back in front of the Ninth Circuit and in front of a new panel, Judge Owens isn't writing the opinion any more (nor is he on the panel).  The author of the opinion is instead Judge Ikuta.

And to say that her approach to the issue is different than Judge Owens is an understatement.

Here's what the new panel says:

"[T]he BIA determined that “knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.” . . . The BIA reiterated that animal fighting entails extreme suffering (and sometimes death) of the animals involved, and gave examples of the brutal manner in which such animal fighting events were conducted. The BIA reasoned that “the exhibition and celebration of suffering in animal fighting events” was “contrary to basic standards of decency and humanity” and “debased and brutalized the citizenry who flocked to witness such spectacles.” . . .

[T]he BIA explained that the immorality of the conduct stemmed from its infliction of suffering on sentient beings, so it applied to animals involved in cockfighting, as well as domesticated animals. [Cite] The BIA distinguished this conduct from other practices, such as hunting and food production, that are “inevitably harmful to animals” but are “necessary or acceptable to accomplish the underlying utilitarian objective.” [Cite] The BIA also acknowledged that some jurisdictions in the United States do not criminalize cockfighting, but did not give this fact any weight. . . .

We conclude that the BIA has provided a well-reasoned basis for determining that “knowingly sponsoring or exhibiting an animal in an animal fighting venture is a crime involving moral turpitude.” . . . Accordingly, we conclude that a conviction under § 2156(a)(1) is categorically a crime involving moral turpitude."

So the new panel deports Mr. Ortega-Lopez to Mexico.

Monday, October 19, 2020

People v. Hendrix (Cal. Ct. App. - Oct. 19, 2020)

In one way, it's a routine offense:  burglary.  But in many ways, it's a strange couple of crimes.  There's clearly something about Mr. Hendrix that is . . . off.

The first crime is at a Costco.  "Appellant was stopped by a Costco employee after he tried to enter the Oxnard store without a membership card. He said his mother was inside and asked to be escorted to her. The employee went with him as he walked through the store, supposedly looking for his mother. When they reached the alcohol section, appellant put a bottle of tequila into his shorts. He left the store with the bottle in his shorts and without paying for it. When confronted, appellant threatened to harm the Costco employee. He was arrested for robbery."

Uh, yeah.  That's not the greatest criminal plan in the universe.  Why it's not easier to attempt to shoplift at a 7-11, or liquor store, or Rite-Aid, is unclear to me.

There's clearly something "off" to the court as well.  "In October 2017, appellant’s attorney declared a doubt as to his competency to stand trial. After evaluation, he was committed to the Department of State Hospitals for treatment. In August 2018, appellant was found competent. He pleaded guilty to one count of second degree robbery. On September 24, 2018, the trial court granted appellant 36 months’ formal probation on the condition that he serve one year in county jail with credit for time served. He was then released from custody."

Fair enough.

The second crime is also a bit bizarre.

"At 7 a.m. on October 28, 2018, appellant knocked loudly on the front door and rang the doorbell of a house on Indiana Drive in Oxnard. Artrose Tuano, who lived in the house with his parents was at home and watched the video being recorded by his home security system. He saw appellant walk through a side gate and into the back yard. Appellant tried to open a side door that led to the garage. He also opened a screen door and then tried to force open a sliding glass door leading into the house. When he could not get in the house, appellant sat down on a bench in the backyard. Tuano called the police. Police officers arrived and found appellant sitting in the backyard."

Knocking loudly on random doors at 7:00 a.m. and then just sitting there when he can't get in?  Weird, no?

The court sentences Mr. Hendrix to ten years in prison.  That's a lot.  A huge lot.  The Court of Appeal declares that's not cruel and unusual punishment.  That conclusion isn't surprising at all given the lax doctrinal standards we have for that inquiry.

Still, a decade in prison for weirdly knocking on a door at 7 a.m., trying to get inside, and then sitting on a bench in the back yard when you're unsuccessful?  Wow.  I know it keeps a strange guy off the streets.  But that's really the best our society can do?

Guess so.

Justice Tangeman authors a brief dissent, some of which highlights the weirdness of the present offense.  He says:

"Appellant has a history of mental illness. Indeed, he was found not competent to stand trial in a prior case and was committed to the Department of State Hospitals for almost one full year for mental health treatment. He was released from that commitment only two months before this incident occurred. This is not an insignificant fact, although it is glossed over in the majority opinion.

Moreover, the underlying facts of this case readily show that appellant was not of ‘sound mind’ on October 28, 2018. After loudly knocking and ringing the doorbell, appellant walked around the house, tried to force open a door and, when unsuccessful, simply sat down in the backyard, and waited. Waited for what? His cousin? Or, as the majority apparently posits, for the police to arrive to arrest him (which conclusion is inconsistent with his surprise at seeing the police). He had no burglary tools when arrested and made no further efforts to enter the house. He simply sat down and waited."

Yep.  Not your usual offense.  Or offender.

But he'll still be spending a decade in prison.

Friday, October 16, 2020

People v. Villa (Cal. Ct. App. - Oct. 16, 2020)

Defendant Villa is 28 and his girlfriend (and the mother of his child) is 18.

"While driving with his girlfriend, Jane Doe, and their infant child, Dagoberto Shoreque Villa, who was heavily intoxicated, began punching Doe and pulling out her hair in a fit of jealousy. When a police officer pulled them over after seeing him run a red light, he found Doe injured and bleeding and asked Villa to exit the vehicle. Villa identified himself using a false driver’s license and resisted taking a blood alcohol test. Later, Doe accused Villa of having previously beat her with a belt buckle and threatening to have her deported if she disclosed the abuse. Villa denied these last charges but said he didn’t remember the events on the night of the drunken driving."

That's not a good fact pattern for Mr. Villa.  At all.  And the fact that his blood alcohol content was around .20 at the time doesn't help things either.  "A jury convicted Villa of inflicting corporal injury, child endangerment, driving under the influence of alcohol, driving with a blood alcohol content of .08 percent or more, falsely identifying himself to a police officer, giving false information to a police officer, and intimidating a victim."

The Court of Appeal affirms his conviction.

You can definitely quibble with at least parts of Justice Slough's opinion.  She concludes that the trial judge properly prevented the defense from introducing the fact that the victim (who was an unauthorized alien) received a U-visa available only to victims of domestic violence, which -- as the opinion concedes -- might have given her a potential interest in making up (or at least sticking) to her story.  There's lots in that analysis that's credible, particularly since the standard here is abuse of discretion.

At the same time, there are at least a couple of points that are perhaps less persuasive than others.  For example, like the trial court, the Court of Appeal concludes that the issue of the U-visa would have "taken up a lot of time" and required various testimony.  True enough.  But the defendant's facing -- and ultimately gets sentenced to -- a decade in prison for his crimes.  I'm not sure that devoting several hours (or even a day or two) to what's perhaps his best (only?) defense is "too much time" given that exposure, or that we should be looking to rush through things like this.  (It's true that the victim testified that she didn't learn about the U-visa program until after her initial testimony at the preliminary hearing, which is indeed a huge problem with the defense, but a jury need not take her word for that fact -- just as they need not necessarily take her word about the underlying domestic violence.)

Similarly, the Court of Appeal notes that there was indeed a difference in the testimony that she gave in the preliminary hearing and the testimony she gave at trial, since only at the the latter did she testify that Mr. Villa put the child on the center console of the vehicle while driving drunk.  Personally, I think Justice Slough may be right that this might have been a relatively tiny "detail" about which the jury may not have cared (or that the victim was simply "clarifying" at trial).  (Justice Slough says "[T]hat’s just a detail, not a material change to her testimony.")  But when the opinion says that this fact wasn't especially relevant because "it’s a detail about his treatment of the child, not about his abuse of Doe," I'm not particularly persuaded -- if only because the majority of Mr. Villa's sentence (6 of the 10 years) was for the child endangerment conviction.  It's true you don't get a U-visa for endangerment charges, but still, a jury might find the (alleged) change of story relevant and material.

Again, the standard is abuse of discretion, so you're going to have a hard time arguing that a trial court made the wrong "403" call on relevance versus prejudice.  But at the same time, I'm not a huge fan of the "letting the defendant assert a defense to try to avoid a decade in prison will take too much of our valuable time" argument.  On a minor defense without much value, yeah, maybe.  And I can see such an argument here.   We just want to be especially careful that we're weighing the competing values -- trial efficiency versus not incarcerating an innocent person -- with their appropriate respective weights.

Wednesday, October 14, 2020

People v. Zorich (Cal. Ct. App. - Oct. 13, 2020)

David Zorich is eligible for potential resentencing if the vehicle he stole in 1997 was worth $525 or less.  That vehicle was (accordingly to the police report) a 1979 AMC Concord with 105,352 miles on it and that was in "fair" condition.

What do you think someone would have paid in 1997 for a 17-year old AMC Concord with 100,000+ miles on it?

Mr. Zorich's lawyers submit an estimate from Kelly Bluebook:  it says that vehicle's worth $500.  The prosecution responds with . . . essentially nothing.  Just a form that checked a box that asserted (without any evidence whatsoever) that the vehicle was worth $1000.  Then the prosecution didn't even show up at the hearing.

The Court of Appeal says -- quite rightly -- that the uncontradicted evidence submitted by Mr. Zorich was good enough to prove the vehicle was worth $525 or less.

(Justice Moore says that even though the vehicle's odometer read "5,352," it almost certainly had "rolled over" and really represented 105,352 miles since it'd be super unusual for a 17-year old car in only "fair" condition to actually have only 5,352 miles on it.  Totally right.  Though I think that Justice Moore might actually be understating the number miles on the vehicle.  My bet is that the vehicle has probably rolled over twice at this point.  It's 17 years old.  If it's driven 12,000 miles a year -- which is around normal -- that's 204,000 miles.  Pretty much spot on the actual number of miles on the vehicle (205,000) if it has rolled over twice.  Indeed, the actual number of miles driven per year, according to the Department of Transportation is even larger than this, and is around 13,500.  So my guess is that the vehicle is actually worth less than the $500 that the defense postulates, since a car with 200,000 miles on it is worth a fair piece less than one with 100,000 miles on it.)

The other funny thing about this case is the discrepancy between the resources devoted to the case in the trial court and the resources devoted to it on appeal.  Below, the prosecution doesn't bother to do anything other than check a box; it offers no evidence, doesn't submit a brief, doesn't bother to argue against defendant's evidence, and doesn't even bother to show up at the hearing.  (Mind you, it still wins, which might tell you something.)  Yet, on appeal, we appoint a lawyer for defendant, have him file an appeal, have the Attorney General file a full brief, etc.  (All for naught, I might add.)

Given that you know that a criminal defendant has a right to appeal, maybe the prosecution putting in a little more effort below might make rational sense.  Since, as here, it might make those cost "savings" arising out of not doing anything at all in the trial court essentially meaningless.

The long and short of it:  A 17-year old vehicle that runs but that has over 100,000 (or even 200,000) miles on it ain't worth much at all.

Monday, October 12, 2020

People v. Barber (Cal. Ct. App. - Oct. 9, 2020)

When I read opinions, I sometime think:  "There but for the grace of God go I."  Or at least I try to think that.  Whether as a victim or perpetrator or judge, I think it's healthy to remember that participants in both the criminal and civil justice system are always people.  Real people.  With flaws and imperfections and good days and bad days; with dreams, hopes and struggles.

So, yeah, a lot of times we see them at their worst.  Few people probably grow up thinking:  "For sure, I definitely want to be in a published opinion in the Ninth Circuit or the California Court of Appeal.  That's what I want my life to become."  Yet there they are.

Could have been me.  Again:  as a victim, or perpetrator, or lawyer, or judge, or police officer, or whatever.  The path my life actually took was far from predetermined.  I could see myself in any of these roles.  (Though, obviously, would infinitely prefer some roles to others, and at least hope that certain roles -- e.g., as a mass murderer in a death penalty case -- would be extraordinarily unlikely.)

I mention all this because I could definitely see myself in this opinion.

It all happens on Carlsbad Boulevard in Carlsbad, California.  A stretch of two-lane road that fronts the beach in a community in north San Diego County.  It's a beautiful place, with gorgeous beaches.  As accurately described by the Court of Appeal,  "the north and southbound lanes are separated by a wide landscaped median. The southbound lanes run closest to the beach, and, just south of the intersection, there is a dirt parking lot, which abuts the bike lane. The area is a corridor for surfers and beachgoers to get to the beach."

Absolutely right.  Have been there numerous times.  Driving or biking along the highway, parking and going to the beach, walking on the adjoining sidewalk, crossing the street. etc.  Have definitely done it all there.

I'm sure the same was true for Michael Barber.  He lived fairly close to the beach, in a neighboring community, so I'm sure that his particular day at the beach on March 8, 2018 wouldn't ordinarily have been that memorable.

Except it was.

"Barber is a retirement planner for teachers and seniors and has a 15- year-old son. On the day of the incident, Barber picked up his son from school at 2:45 p.m. and dropped him off at an athletic training class at 4:00 p.m. The class lasted for an hour."  So Mr. Barber had an hour to kill.  Why not go for a run on the adjacent beach?  Awesome.

"On March 5, 2018, Barber parked his car in the dirt lot just south of the intersection of Carlsbad Boulevard and Avenida Encinas and went for a run. Afterward, he needed to pick up his son. To do so, he wanted to go east on Avenida Encinas, which from the parking lot he could not directly access because it was north of his car, and the lanes abutting the parking lot only went southbound."

Okay, so that's a bit of a hassle.  Mr. Barber could have gone southbound, made a U-turn, and then taken a right on Avenida Encinas.

But he was so close to the intersection.  He'd of parked just a little bit more towards the north side of the street, he could access Avenia Encinas right from the parking lot.

And there's room.  The path looks pretty clear in the short path northward.  So "Barber looked for pedestrians and did not see any. He checked his mirrors before he started driving. Barber got into his car and backed up, looking over his shoulder as he drove. Barber estimated that he was going 15 miles per hour as he backed up."

I'm sure that happens repeatedly.  Maybe you've done the same thing -- or something similar -- on occasion.  Maybe not.  Regardless, it happens.  I've seen it happen.  Ninety nine percent of the time, it works out okay.  Perhaps not the smartest thing to do, to be sure.  But trust me:  It happens.  Especially in settings like this one.

Of course, you already know that since the case results in a published opinion, things most definitely did not work out okay here.

"Rather than continuing southbound on Carlsbad Boulevard, making a U-turn, and accessing Avenida Encinas from northbound Carlsbad Boulevard, Barber put his car in reverse and drove northbound backward in the bike lane against the flow of traffic on southbound Carlsbad Boulevard. He had hoped to enter the traffic lanes and make a left turn onto Avenida Encinas. When he looked behind, he did not see any cars, bikes, or pedestrians. . . . 

Around that same time, S.H. had been walking along Avenida Encinas and was preparing to cross the intersection at southbound Carlsbad Boulevard. When the light was red for southbound traffic, S.H. proceeded into the crosswalk at the intersection. A motorist who was stopped at the red light saw Barber speeding toward S.H. as she continued through the crosswalk; so, the motorist honked her horn. The honking did not stop Barber from colliding into S.H. as she entered the bike lane area of the crosswalk. The impact of the collision threw S.H. about 10 feet away. Barber felt the impact and looked in the rearview mirror to see a pedestrian bounce off the back of his car. He stopped the car, got out, and saw a woman lying on the ground.

A lifeguard and an off-duty paramedic were in the vicinity when the collision occurred and rendered aid. S.H. was struggling to breathe, coughing up blood, and bleeding profusely from her mouth, nose, ears, and scalp. She displayed symptoms of severe traumatic brain injury.

Barber remained on the scene. He was cooperative, forthright, and very upset about what had happened. A test at the scene revealed that Barber had no alcohol in his system. The rear left area of Barber’s car was dented where he hit S.H.

An ambulance arrived and transported S.H. to the hospital. Upon admission to the hospital, it was discovered that S.H. suffered from traumatic brain injury, which included hemorrhages in the brain and skull fractures. As a result of the brain injury, she had difficulty breathing on her own. Given S.H.’s inability to perform simple tasks, her brain injury was considered severe. In addition to her brain injury, her collarbone, shoulder blade, and three bones in her back were fractured. Once S.H.’s acute symptoms were treated, she was referred to a rehabilitation facility. She had no memory from the day of the collision until she was in the ambulance on the way to the rehabilitation center. As a result of her injuries, she suffered severe memory loss, loss of language, and ongoing physical issues, which continued to require additional surgeries."

Oh my.

Now, you may think that the case involves a civil lawsuit against Mr. Barber.  Which I'm sure indeed happened.  But notice that the caption is "People v. Barber."  This one is instead the criminal case.  It's not that Mr. Barber was intoxicated or driving under the influence.  He wasn't.  But he was nonetheless charged with felony reckless driving with great bodily injury.  For which he gets convicted.  Hence the appeal.

Just like Mr. Barber got convicted at trial, so too does he lose in the Court of Appeal.  He claims that there were jury instruction problems as well as improper enhancements (e.g., the great bodily injury), but the Court of Appeal disagrees.

Which is not surprising.  At least not given the circumstances here.  The victim, S.H., was seriously injured.  All as the result of what I think (and hope) that we all would recognize as an incredibly stupid and unwise decision by Mr. Barber.  And, yes, I might well be sympathetic to his plight if he received, say, seven years in prison as a result of the accident.  Sure, he did something stupid and reckless, and the life of S.H. will never be the same.  But a lengthy prison sentence for someone who does something like this, with no criminal history whatsoever, would (I readily admit) tug upon my heartstrings a bit.  "There but for the grace of God" and all.

But here's the thing:  Mr. Barber gets sentenced to . . . three years of probation.

Dude!  If that's all the punishment you received, thank your lucky stars you didn't get more.  Why the heck are you filing an appeal?!  Yes, yes, I know; it's a felony conviction, and that doesn't look good on anyone's record (for employment or otherwise).  Still.  You totally nailed someone with your car while backing up on a busy street and seriously hurt her.  That's a setting in which I'd personally be very much inclined to take my lumps and call it a day.  Or at least I hope I would.  Because, jeeze, I know it might seem weird to be affirmatively grateful for a felony conviction, but if I got probation in a setting like this, that'd be exactly how I'd feel.  Lucky.  Definitely luckier than my victim.  And I'd make every last effort in my heart and soul to avoid doing anything like this ever again.

And definitely wouldn't file an appeal.

Nor is the Court of Appeal especially sympathetic to Mr. Barber.  Here's what Justice Huffman says about his decision.  In words that pretty much ring true:

"The case before us presents a very egregious set of facts that clearly establish reckless driving in any event. Barber backed out of a parking lot in an area he knew could be crowded with bikers and pedestrians. When he backed out of the parking lot, he then proceeded to drive in reverse in the bike lane traveling in the opposite direction of oncoming traffic. He testified that he decided to drive in reverse, against traffic, because the bike lane was big enough to accommodate his car. Barber further insisted that he would not have decided to travel in reverse, against traffic if the bike lane was narrower and his car would not have fit. Thus, it appears Barber knew traveling the wrong way in a bike lane could be dangerous, but based his evaluation of danger on whether his car would fit in the lane, apparently not considering that bicyclists and joggers could use the bike lane in a busy pedestrian area near the beach. In fact, Barber admitted that “lots of people” go jogging, biking, and travel to the beach in the area he was driving through.

He drove in this dangerous fashion for a substantial distance, from the lot, on the street, through a crosswalk, a busy intersection, and another crosswalk. Although Barber tried to look behind him as he drove against traffic, he admitted he was aware that his car had blind spots and he could not see everything while traveling in reverse.

As Barber proceeded through the intersection, he was not sure if the light was red at Carlsbad Boulevard, but he saw a car stopped at the light and knew it was dangerous to drive through a crosswalk when pedestrians had the right of way. However, without knowing who had the right of way, he crossed through the crosswalk. When he collided with the victim while driving in reverse, he hit her with such force that the car was dented and caused her to fly 10 feet away, producing catastrophic injuries.

Simply put, Barber engaged in this incredibly dangerous course of action to avoid going an extra three quarters of a mile away to make a Uturn, which would have placed him on the right side of the road to turn onto Avenida Encinas. We cannot contemplate how any reasonable juror would not find Barber intentionally drove with wanton disregard for the safety of other people."

Yep.  That pretty much sums it up.

Thursday, October 08, 2020

Robin v. Crowell (Cal. Ct. App. - Oct. 8, 2020)

I wasn't overly interested in this opinion for the underlying legal doctrine, which involves the relevant limitations period for judicial foreclosures and undisclosed deeds of trust.  But I was interested in the identity and roles of at least some of the participants.

Steve and Marta Weinstein owned some vacant land and got a $450,000 loan from Cathleen Robin and Michael Fontes, and in return, Ms. Robin and Mr. Fontes secured the loan with a deed of trust on one of the Weinsteins' parcels.  But Al Crowell had previously loaned the Weinsteins $250,000 and had a deed of trust, so that'd be senior.  But the Weinsteins told Ms. Robin and Mr. Fontes that this was a "mistake" and got Mr. Crowell to execute a partial (but not complete) reconveyance.  Then the Weinsteins and Crowell -- without the knowledge of Robin or Fontes -- record a second deed of trust that secured Crowell's old loan.

Eventually, Ms. Robin judicially forecloses on the property, and obtains it via a credit bid, but Crowell's not named in the lawsuit.  Thereafter, Crowell and Robin litigate against each other, with Crowell saying that he's got an interest in the property and Robin saying that he doesn't.

Ms. Robin wins in the trial court, but Mr. Crowell prevails in the Court of Appeal.

The interesting thing (to me) is that Mr. Crowell represents himself on appeal.  That doesn't usually happen in cases like this one, which involves complicated legal doctrine.  Or at least typically doesn't happen successfully.

So I looked up to see whether "Al Crowell" was an attorney.  ('Cause sometimes these people are able to successfully represent themselves.)  Yes, there's an "Alton Crowell" who's an attorney (albeit inactive).  That could potentially be the "Al" Crowell in the opinion.  But Alton is in Laguna Beach, the litigation here is in Tuolumne County, and the "Al Crowell" who's listed on the docket in the Court of Appeal is in on Clipper Street in San Francisco.  Doesn't seem like a match.

Plus I then look at the respondent's brief, available on Westlaw.  Apparently "Al Crowell" is actually "Alois Crowell."  So not Alton, for sure.  So how does Alois write a sufficiently good brief to prevail?

I'm able to find Alois in San Francisco -- or at least think I do -- who lists himself as retired and the vice president of the "U.S. Alliance to End the Hitting of Children."  Fair enough.  Not exactly a background full of legal expertise, but apparently someone with enough time and interest to write a brief to try to ensure that he gets repaid for a loan that he long ago made to the Weinsteins.


I must say that, having read the respondent's brief, I can see why the trial court might have ruled as it did.  If only because of the "equities" given the respective situations of the parties (e.g., Crowell, the Weinsteins, and Robin).  That said, I wasn't able to read the opening and reply briefs, and don't really have strong opinions on the legal principles on which the Court of Appeal relies.

Regardless, a retired non-attorney represents himself and prevails in a California appeal that results in a published opinion about the limitations period for judicial foreclosure suits.  That's something you don't see every day.

Wednesday, October 07, 2020

In re Butler (Cal. Ct. App. - Oct. 7, 2020)

We rightly get irate at countries in which people are sometimes held without trial for years.  That's not right.  It's not due process.

But check out this case.  Not in some totalitarian foreign country.  But right here in America.  Indeed, in California.

Terrence Butler gets convicted of rape in 1993.  He's sentenced to 18 years in prison.  He serves his time.

But in 2006, the government seeks to continue to institutionalize him as a "sexually violent predator" (SVP).  That's permitted by law (though some people believe it pushes the envelope, or even crosses it).  At least he'll get a trial in which the accusation that he's mentally ill is tested in court before he continues to be deprived of his liberty.

At least in theory.

"Despite numerous demands from Butler that he receive a trial as soon as possible and explicit direction to the Alameda County Public Defender’s office that it was not authorized to waive time on his behalf, no trial was ever held. Butler was confined to a state hospital for 13 years awaiting trial on his SVP petition, during which time eight public defenders and six prosecutors cycled through his case, three trial dates were set and vacated, and more than 50 continuances were granted without a single objection raised by opposing counsel or a finding of good cause made by the trial court. There is no evidence that any of Butler’s public defenders ever consulted or retained a defense expert in this matter, and the prosecution never declared it was prepared to go to trial or insisted that a trial date be set. Indeed, after the trial court ordered a new probable cause hearing in May 2012, no such hearing was held, and Butler was detained for the next six years without a finding of probable cause."

So Mr. Butler remains institutionalized for 13 years with no trial.  The Court of Appeal says that's not okay.  Not here, and not anywhere.  

The Court of Appeal concludes:  "The record here amply supports the habeas court’s finding that blame for the delay must be shared between a district attorney’s office that abdicated its responsibility for prosecuting this case, a public defender’s office that disregarded Butler’s repeated demands for trial, and a trial court that took no meaningful action to set deadlines or otherwise ensure that Butler’s right to a timely trial was protected."

The state responds -- somewhat chillingly -- that individuals facing SVP charges have no right to a speedy trial at all.  In the opinion of the Alameda County District Attorney, people can be deprived of their liberty and institutionalized for 13 years without a trial and there's no legitimate complaint about such a result.

Thankfully, the Court of Appeal disagrees.

What happened to Mr. Butler wasn't simply the fault of prosecutors.  But it was the fault of the state writ large -- prosecutors, public defenders, and the trial court.  Ironically, the person who probably had the most accurate insight into what went down here was Mr. Butler, the one without any legal training whatsoever.  At one point, he said:  "It’s like they are breeding attorneys to basically pretty much treat cases like a relay race, just pass the baton every couple years, and they all requested to start over; they need an opportunity to review my case."  With all the changes in his assigned public defenders, that's a fairly accurate description of what transpired.  (Except, perhaps, for the "breeding" part.)

Unfortunate to see something like this go down.  But at least the judiciary (eventually) stepped in.

Tuesday, October 06, 2020

Doe v. Yim (Cal. Ct. App. - Oct. 6, 2020)

The relevant ethical rule says that a lawyer who's likely to be a witness can't represent a client "at trial."  But the Court of Appeal holds that, notwithstanding this text, the lawyer can also be disqualified from pretrial proceedings as well; i.e., completely disqualified.

The underlying case is definitely a messy one.  The lawyer is representing her adult daughter against her ex-husband claiming that he molested her during the early days of their 17-year marriage, whereas the husband claims that this is just a made-up charge to create leverage during a vituperative divorce.

The ex-wife/lawyer represents her daughter on appeal.  Interestingly, although that attorney lists her address with the State Bar (and on the docket sheet) as the address for Phillips Jessner (a family law firm in downtown L.A.), that lawyer doesn't appear on the firm's web site.  (To be clear:  I'm not saying she doesn't work there; the firm simply doesn't seem to have elected to put her on its list of attorneys, at least presently.)

Regardless, it's a holding to remember:  You can be DQ'd entirely if it's likely that you'll be a material witness at trial, at least in a situation like this.

Monday, October 05, 2020

Fipke v. California Horse Racing Board (Cal. Ct. App. - Oct. 5, 2020)

I can't say that I knew much about how jockeys get selected and paid in horses races before today.  But as a result of this opinion, I certainly now know a little more than I did an hour ago.

The facts of the case are undisputed.  It's just a question of what's legally allowed.

"Fipke is the owner of a thoroughbred racehorse named Forever Unbridled. The horse was scheduled to run in the Breeders’ Cup Distaff race on November 3, 2017, which carried a purse of $2 million. The draw for the race—which is the point when post positions are selected and jockey assignments finalized—was scheduled for October 30 at 5:00 p.m. Any jockey changes made after the draw must be approved by the race stewards.

The day before the draw, Forever Unbridled’s trainer entered the horse in the race and named Rosario as the jockey. This is referred to as giving Rosario “the call.” The next morning, Fipke told the trainer to remove Rosario as the jockey and instead name John Velazquez. Fipke thought Rosario had ridden one of his horses poorly in a prior race, and he was upset that Rosario was unwilling to ride some of his other horses. At Fipke’s direction, prior to the draw, the trainer removed Rosario as the jockey and named Velazquez instead."

Rosario complained, Fipke stood his ground, and Forever Unbridled subsequently won the race, which resulted in Velazquez earning a $110,000 riding fee. But the racing stewards then decided that Rosario was also entitled to $110,000 (a "double jockey fee") for being removed.  At which point administrative proceedings and, ultimately, litigation commenced.

At the end of the day (today), Fipke wins.  The Court of Appeal holds that the statute doesn't allow racing stewards to award double jockey fees unless the jockey is replaced after the "scratch" time, which is after the "draw" (and after Rosario was replaced here).  So Fipke gets to keep his $110,000 and Rosario loses it.

Tiny win for Fipke (who's got more money than he knows what to do with) and corresponding huge loss for Rosario.  I suspect that Fipke may have spent more money on lawyers than the $110,000 at stake in the matter.  But when you're rich, you can do that.  Matters of principle (or spite), you know.

Friday, October 02, 2020

People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020)

Here's some evidence that the law has gotten marginally more rational over the last hundred years.

Bail is set for a particular criminal defendant at $220,000, but due to a miscommunication, officers at the jail had it listed as $120,000.  So a bail company posts a bail bond for that latter amount, and defendant thereafter failed to show up.  To avoid forfeiture of the bond, the bail company insists that the bond is "void" because it was for the wrong amount, citing a Court of Appeal case from 1919 that so holds (albeit arguably in dicta).

Justice Stewart holds -- eminently sensibly, in my view -- that the bond isn't void.  The company knew it was bonding the guy out for $120,000.  It knew it would lose this amount if he didn't show up.  The bond isn't void.  Indeed, arguably, the bail company's lucky.  It'd have probably lost another $100,000 if the bond had been set in the right amount.

There's also a funny line in the opinion in which Justice Stewart says:  "In the course of our research we encountered—but cannot mention by name—a number of unpublished Court of Appeal decisions rejecting American’s argument and distinguishing [the 1919 Court of Appeal opinion]."  That's definitely one way around Rule 8.1115, eh?!