Monday, November 30, 2020

People v. Turner (Cal. Supreme Ct. - Nov. 30, 2020)

Most (or at least many) people took a well-deserved break last week.  Including myself.  (Thank you, Park City.)

But now it's Monday.  Start of a new week.  Time to get back to business.

And there are people to kill.

(At least theoretically.)

It's not really surprising how this one comes out.  Chester Turner is convicted of killing not one person, not two people, not three people, but ten people.  Plus a viable fetus.

Over a dozen or so years, sure.  But still:  Double digits.  You're going to get sentenced to death for that.  And don't be surprised when your convictions and sentence are unanimously affirmed by the California Supreme Court.

The "Figueroa Corridor" of Los Angeles -- where each of the murders took place -- has changed a ton between the period in which the murders took place (between 1987 and 1996) and today.  As I can personally attest, that area has gotten a ton more upscale since that time.  But during the relevant period, it was definitely "an area beset by crime, including prostitution and narcotics activity."  A place in which a serial killer could indeed prey on vulnerable prostitutes, homeless women and drug addicts.

There's still Skid Row in Los Angeles, where Mr. Turner lived at the time.  Which continues to be a not-nice place.

In the meantime, Mr. Turner gets sentenced to death, so the California Supreme Court has to do its work.  Even though it's pretty much a certainty that he'll die in prison of natural causes.  (He's currently 54 years old.)

And on the Monday after Thanksgiving, that court rendered the precise judgment that everyone would expect.

Tuesday, November 24, 2020

People v. Schultz (Cal. Supreme Court - Nov. 23, 2020)

Sometimes you put yourself in a pickle.  This one's definitely a pickle.

Michael Schultz gets sentenced to prison in 1996.  He serves most of his sentence and, in 1999, gets transferred to a low security fire camp, and is about to get out.

The problem (for Mr. Schultz) is that he killed someone during a residential burglary six years ago -- a murder that had never been solved.  But in 1999, Mr. Schultz started to hear that they were trying to pull some DNA from the victim (who had been raped), and he thought they'd shortly ask to pull DNA from him in prison in order to see if it was a match.

So he's like to escape from prison before that transpired.

He'd been dating someone from around the time of the murder, the couple had continued their relationship (of a sort) while he was in prison for the unrelated offense, and the two were now engaged to be married.  So Mr. Schultz thinks -- not irrationally -- that his fiance might potentially be willing to help him escape.  Which shouldn't be all that hard since he's in a low security environment at this point anyway.

But, not surprisingly, when he asks his fiance to help him escape, she's incredulous.  Why does he want to escape when he's about to be released (and the parties married) in six months anyway?!  That sounds crazy.  Doesn't make any sense at all, so without more information, no way she's willing to help.

So the pickle is:  Does he tell her about the murder?

On the one hand, it might make her more willing to help him escape.  On the other hand, she's likely to be more than a little bit miffed about the murder and rape, especially since it transpired when the parties were dating.  Plus it's a murder.  Not exactly what you want to hear about your fiance.

That's a toughie.

He ultimately decides to tell her.  Which leads to her telling other people.  Which leads to him being turned in to the police.  Which leads to his conviction and death sentence.  Which the California Supreme Court promptly affirms.

Wrong call (for him), apparently.

Thursday, November 19, 2020

Reuter v. Macal (Cal. Ct. App. - Nov. 18, 2020)

So many things about this relationship just seem . . . strange.

Part of it I understand.  Mr. Reuter is around 65 years old (at this point) and Ms. Macal is around 45.  They began a "romantic relationship" in 2004, so that would have made him roughly 50 and her roughly 30.  So an older guy and a (relatively) younger woman.  Not uncommon.

They go out for less than a year when the parties begin to "discuss[] marriage."  By this point, not only is she living in his condominium, but so is her younger daughter.  "Plaintiff told defendant that he wanted to marry her, and she agreed, but on the condition that her name be placed on title to his condominium. Defendant continued 'pushing for' her name to be on title until plaintiff agreed."

Okay, I guess.  Agreeing to marry someone only if he gives you money (or property) isn't exactly a great sign, IMHO.  But whatever.  Different strokes for different folks.

So in 2005, they go to a notary and put her name on the condo.  So now she owns half.  So now they get married, right?

No.  Here's where I begin to get confused.  There's no mention in the opinion about what goes down for the next six years.  The core dispute between the parties in the case is whether the condo was a gift in contemplation of marriage, which Mr. Reuter wants back because (spoiler alert) the parties never, in fact, got married.  But Ms. Macal says, nope, it was just a gift, not in contemplation of marriage.  So what was the scoop between when (1) the condo was signed over in 2005, and (2) the parties ultimately broke up in 2011?  The opinion says she kept living there.  Why didn't they get married?  Were there continuing fights about more money, or more property, or other conditions before marriage?  What went down?  Inquiring minds want to know.  What happened during this period also seems relevant to whether putting the name on the condo was in fact in return for marriage.  If the parties just sit there, living together, for six years after the transfer, happy with the status quo, then I take that as a fair sign that the proposed marriage was not, in fact, the consideration for the condo, and it was instead (as Ms. Macal says) just a gift.  But if, instead, Mr. Reuter continued to insist on marriage, whereas Ms. Macal refused (or put things off), okay, I get that.  But I'm definitely left wanting to know which of these (or a combination thereof) it was.

Eventually, in 2011, they break up.  Did Mr. Reuter simply get tired of waiting?  Nope, that's not it.

They break up in 2011 when Ms. Macal "disclosed to plaintiff that she was pregnant by another man and intended to keep the child."


But at least it's a clean break.  Now the parties break up and lead their separate lives, only to fight in the future about the joint ownership of the condo, right?

Wrong again.

Upon learning of the upcoming kid fathered by someone else, Mr. Reuter says:  "'Okay, if that’s your decision, then you have to leave.’ Defendant agreed to move out, but asked plaintiff to ‘give [her] some time, about a year.’ Although plaintiff acquiesced, he understood that the relationship was over because the parties 'had separate bedrooms, and [they] didn’t really talk [that] much to each [other] . . . .' By that time, it was clear to him that defendant would not be able to carry out her promise of marriage.

During the following year, defendant’s son was born, and despite defendant’s promise to move out, she continued to live in the condominium through and including the time of trial. Plaintiff did not take any legal action against defendant because she “always asked for more time” to move out. Defendant explained that she needed more time to find a new “boyfriend,” and left her children with plaintiff while she went out on weekends “looking for boyfriends.”"

Not what I would have expected.  But crazy things can indeed happen in the modern relationship world, I guess.

But, yes, as you might suspect, he eventually ends up kicking her out of the condo and suing her for a declaration that he alone owns the condo since putting her on the deed was a gift in contemplation of marriage.  When does that happen?


Oh, yeah, and in the meantime, after she's told him he's having a kid by another guy, "[f]ollowing the breakup in 2011, plaintiff continued to give defendant between $6,000 and $7,000 a month, totaling over $250,000."


I get that love -- and sometimes generosity -- makes people do silly things.  But, I mean:  Wow.  Not a relationship that seems to work here.  And there's an undercurrent of commodification that isn't at all attractive.  To me, at least.

Ultimately, as a result of this opinion, Mr. Reuter gets half of his condo back.

Albeit after years of litigation and who knows how many tens of thousands of dollars in legal fees.

The ultimate result is presumably some solace to Mr. Reuter.  But, particularly in the scheme of things, perhaps small solace indeed.

Wednesday, November 18, 2020

Sanchez-Rosalez v. Barr (9th Cir. - Nov. 18, 2020)

Want to see a Ninth Circuit judge absolutely tee off on a prior Ninth Circuit opinion?  Check out Judge VanDyke's separate opinion in this case.

I won't attempt to do it justice, and will instead simply quote some of its most memorable phrases and note that Judge VanDyke himself includes in his opinion a large number of the most inflammatory quotations from previous Ninth Circuit immigration opinions (and dissents).  For example:

"I write separately because that precedent is silly and well illustrates our court’s nasty habit of muddying immigration law and holding the BIA—an appellate body—to stilted standards to which we would never subject ourselves."

"As the majority opinion observes, the entire rationale for the footnote-born rule that controls here rested on the premise that “[t]he BIA … does not normally require a showing of prejudice when a motion for rescission of an in absentia removal order is grounded on ineffective assistance of counsel.” Id. For support, Lo cited three BIA decisions— the most recent of which did require a petitioner to demonstrate prejudice when seeking to reopen an in absentia removal caused by ineffective assistance. [Cite] I suppose one might argue that two out of three ain’t bad. But even Meatloaf would find fault with our Lo rule. The other two BIA decisions that declined to require a showing of prejudice did so based on their reading of statutory text that was repealed seven years before we decided Lo."

"If you are wondering how precedent purportedly based on deference to the BIA could repeatedly require us to effectively reverse the BIA’s decisions, you would be in good company. This type of absurdity is regular fare in our immigration cases. Our circuit’s immigration jurisprudence is a hot mess."

"So once again our jurisprudence betrays the nasty habit of acknowledging only those precedents that support the needs (and desired result) of the moment—that being to overturn the BIA."

"To sum up, a dubious and incomplete picture of BIA precedents was ratcheted into a rule supposedly meant to replicate exactly what the BIA was doing. Now, we’re applying that rule to reverse the BIA for not doing the thing they apparently did so often we decided to do it, too. And we have to apply it even though this court in Singh-Bhathal rejected an ineffective assistance claim indistinguishable from the one in this case. As my colleague remarked about another anomalous rule in a different corner of our immigration law, the rule our panel is forced to apply in this case—like so many of our court’s immigration precedents— is “dumb, dumb, dumb.” Orellana v. Barr, 967 F.3d 927 (9th Cir. 2020) (Owens, J., concurring)."

I'll also briefly mention that the key case that Judge VanDyke critiques (Lo) was authored by Judge Thompson, who departed this Earth around a decade ago and so isn't around to defend himself.  So on his behalf, perhaps, I'll mention that Judge Thompson was a Reagan appointee and, as you may perhaps know, was not one who was (at all) "liberal" in immigration cases.  And his opinion in that regard was joined by Judge Hall, another Reagan appointee (who died the same year as Judge Thompson) and whose conservative, anti-immigration credentials are quite well-established.  (The third member of the panel was Judge Berzon, who is, of course, alive, kicking, and still on the Ninth Circuit.)

I mention this only because Judge VanDyke's opinion definitely slams the alleged pro-immigrant, anti-BIA focus of existing Ninth Circuit precedent.  But it's too easy to conflate the latter with the former and to assume cause-and-effect when the reality may involve a lot more complexity.  Since I'm quite certain that Lo -- the central opinion savaged by Judge VanDyke -- was most definitely not the result of the pro-immigrant, anti-BIA bias of either its author or other Ninth Circuit judges who joined it.  (To take another example, the footnote that Judge VanDyke centrally critiques -- the "two out of three ain't bad" line -- relies in part on another Ninth Circuit opinion that went the exact same way as Lo was written by . . . Judge Hall.  Joined by . . . Judge Thompson.)

So definitely read Judge VanDyke's opinion.  It's super entertaining.

Though I suspect that even if the structure of the world is as he describes, the reasons for its existence are perhaps less conspiratorial in nature than the opinion may perhaps suggest.

Castillo v. Bank of America (9th Cir. - Nov. 18, 2020)

Rather than talk about the merits of this appeal, I simply wanted to propose a tiny change in the way in which the opinion discusses its procedural posture.

It's a class action.  Here are the two paragraphs in which Judge Gould describes how the case got to the Ninth Circuit:

"In response to Castillo’s Motion for Class Certification, the district court found that Castillo had satisfied the requirements of commonality and typicality under FRCP 23(a)(2)–(3), but not predominance under FRCP 23(b)(3). This appeal followed. . . .

Challenging only the denial of the second claim—the overtime-wage claim—and any claims derivative of it, Castillo timely appealed. FRCP 23(f)."

True.  Sort of. 

That'd indeed be the complete process in California state court, in which the denial of certification is the "death knell" of the litigation and hence allows an immediate appeal.  But not in federal court.  In the present case, the party that loses the certification motion (here, the plaintiff) first has to file a request for permission to appeal.  Only if the Court of Appeals grants permission may the appeal permissibly be heard.

A request for permission to appeal was necessarily made (and granted) here.  An important step.  One that probably merits at least brief inclusion.  

Tuesday, November 17, 2020

Moore v. Superior Court (Cal. Ct. App. - Nov. 16, 2020)

I wonder what the backstory -- if any -- is behind this opinion.

Pasadena attorney Kevin Moore represents a client in a mandatory settlement conference in Orange County.  The MSC is operated by a temporary judge, Roy Zukerman; basically, an attorney volunteering his time to help settle cases.  Mr. Zuckerman's done this for a fair piece; as the opinion mentions, he was admitted to the California bar in 1965, so he's been around for a while.

The settlement conference does not go smoothly.  To say the least.  Mr. Moore is agitated, zealous, and strident in his refusal to settle the matter.  He speaks loudly ("yells"), interrupts others, and in a variety of ways is basically a total jerk.  Not someone you want to be around.  So after 15 minutes of this, the MSC gets terminated -- unsuccessfully, of course -- and everyone goes home.

Ninety-nine times out of a hundred, that'd be the end of the matter.  We've all been around attorneys who are unprofessional and rude.  It happens.  We deal.  Perhaps hoping that karma, in the end, prevails.

Not here.

Instead, the trial court hears about these events and issues an OSC re: contempt for attorney Moore.  At the contempt hearing -- which takes place during three different months in 2019 -- the trial judge finds Mr. Moore in contempt, and imposes various fines.  Moore appeals, but although the Court of Appeal narrows (in part) the trial court's findings, it affirms a finding of contempt and reports the matter to the State Bar.

Given that attorney Moore is from Pasadena, you'd doubt that the Orange County Superior Court had sufficient experience with the guy to simply get sick of dealing with his consistent attitude and hence escalate the thing to contempt.  At the same time. does the OC Superior Court really only have one or two attorneys who are jerks in MSCs?  Seems unlikely.

Maybe the uncivility here was just really beyond the pale.  Or maybe it just especially got under someone's skin.

Whatever the reason, the lesson is clear:  Cool your jets when you're in front of a judge.

Even a temporary judge.

They've got connections.

Monday, November 16, 2020

People v. Bankers Ins. Co. (Cal. Ct. App. - Nov. 16, 2020)

Sometimes even good bets don't pay off.

Rami Al-Zetawi gets arrested for animal cruelty when his neighbors allegedly see him beat and injure his white husky dog in the front yard of his home.  When he's arraigned, All Pro Bail Bonds agrees to post his $50,000 bond.  Seems like a good deal for the bond company; they'll get their $5,000 fee (ten percent) and the odds are super high that Al-Zetawi will show up for trial.  Who flees the country just to beat an animal cruelty charge?

Apparently:  Mr. Al-Zetawi.  Who flies to Jordan instead of showing up for his trial.

We'd say that was a "bad beat" in poker.  Or any other form of gambling.

An unfortunate component of the bail bond business, however.

Brennon B. v. Superior Court (Cal. Ct. App. - Nov. 13, 2020)

This is definitely a comprehensive opinion.

It's essentially about a single issue:  Whether a public school district is a "business establishment" under the Unruh Civil Rights Act.  The Court of Appeal says:  No.

Justice Banke's opinion is sixty pages long.  And deep.  It explores -- at extraordinary length -- the history of both the underlying statute as well as the various cases that have gone one way or the other on the issue.

I'm always impressed with in-depth analyses like this.  As a practical matter, they're hard to write.  What justice has enough time to write 60-page opinions, even in unusual cases?  Usually you're just trying to keep up with your various cases and get things out of the door.  Of course, you've got law clerks, and they definitely help.  But they're trying to do the same thing:  keep up with volume.  Writing an exegesis on a particular topic isn't something that you can generally afford.

There's a split in the cases on this issue, and I'm not totally positive that Justice Banke is totally right on the merits.  But I'm also not sure she's wrong, either.  Regardless, she does an admirable job advocating for her conclusion.  And, again, it's a very comprehensive opinion.

Thursday, November 12, 2020

U.S. v. Robertson (9th Cir. - Nov. 12, 2020)

This seems right.

Defendant gets convicted, but dies during the pendency of his petition for certiorari to the Supreme Court.  As a legal matter, that means his conviction is void ab initio.  Fair enough.  (Whether that's the right rule or not is a different matter; regardless, it's definitely the rule.)

But what about the order that said that Defendant had to repay the government for some of his public defender expenses since Defendant actually had more money than he said?

The Ninth Circuit examines a variety of controlling and non-controlling precedents and comes to what seems to me the right result.  Yes, the conviction, sentence, restitution order, and the like may need to be vacated since they all rely upon the existence of a valid conviction -- which (after his death) no longer exists.  But the order about paying the costs of his public defender doesn't require a conviction.  It applies even if the guy's found not guilty.  So it's ancillary, and those sorts of things aren't void.


Parenthetically, I thought it interesting how the Pacific Legal Foundation -- which represented Defendant in this case -- pitched it's alleged "win" in this litigation.  Check out the story it tells here.  It crafts a sympathetic story of an old man criminally charged with trying to protect his property from potential forest fires.  Okay.  I'm fine with that.  It's definitely a one-sided version of the facts, but that's what you would expect from an advocacy group.

After arguing the merits of Defendant's position, the PLF then notes that his conviction was affirmed by the Ninth Circuit, and then Defendant died.  All true.  But then the PLF says that it then stepped in and asked the Supreme Court to let Defendant's wife to "stand in his shoes to finish the effort to clear his name, overturn his unconstitutional conviction, and reverse the impoverishing fine."  As a result of these efforts, the PLF says, "the Supreme Court granted Joe's petition, vacated the Ninth Circuit's ruling, and ordered the Ninth Circuit confirm whether Joe's estate can still contest the fine," and then "on July 10, the Ninth Circuit vacated the conviction and fine, plus returned $1,250 in restitution."

That's definitely written to make the reader think that the PLF was successful on the merits.  There's zero mention of the fact that the only reason that the things got vacated was because Defendant died; that there was absolutely no determination that Defendant was right on any of his substantive claims or defenses.  That part's carefully omitted.  In a deceptive manner that I think crosses the line.  Even for advocates.

If I get convicted for income tax fraud, challenge the conviction on the grounds that income taxes are unconstitutional, lose, die while my certiorari petition is pending, and accordingly get my conviction and sentence vacated on mootness grounds (since I'm dead), it'd be fantastically uncool for my lawyer to write a version of this history that makes is sound like my lawyer convinced the appellate tribunals that the income tax laws were unconstitutional and hence vacated my conviction.  What the PLF does here is little different than that.

Hopefully they'll change it.

Tuesday, November 10, 2020

Cruz v. Fusion Buffet (Cal. Ct. App. - Nov. 10, 2020)

I think that when there's a split of authority in the Court of Appeal and your opinion come out on one side of the split, you should usually publish the opinion.  So I agree with the (belated) decision to publish this one.  The Court of Appeal says that the cost-shifting provisions of CCP 998 don't apply to the one-way fee and cost-shifting provisions of the Labor Code.  I'm agnostic (for the moment) on whether that's right or wrong, but since there's a split in the Court of Appeal on that point, the opinion merits publication.

I was, however, somewhat disappointed at a particular omission (on a different point) in the Court of Appeal's opinion.  Appellant's main argument was that the award of over $47,000 in attorney's fees was improper given that the plaintiff obtained a result at trial that was less than the jurisdictional minimum of unlimited jurisdiction cases in superior court ($25,000).  Yet despite giving a plethora of numbers in the opinion, Justice Aaron never reveals how much the plaintiff actually received at trial.  Was it $24,000?  $5,000?  3?  I would think that'd matter in deciding whether an award of $47,000 in fees was an abuse of discretion?  I had to go back to the briefs to look it up:  a little over $10,500.  (I get why that number may not have been important when the opinion was unpublished, since all the parties knew it already, but it's fairly important once the opinion is published:  it adds substantial color -- and additional merit -- to the bases for the Court of Appeal's holding.)

One more (admittedly tangential) point.  The opinion is written by Justice Aaron, and Justice O'Rourke (Acting P.J) is on the panel.  Yet the decision to publish is signed not by the author of the opinion, but rather by Justice O'Rourke.  Is that really the way things work in the Court of Appeal?  Maybe so.  It's not the way it works in the Ninth Circuit, in which any author gets to decide whether to publish the thing.  (I know that CRC 8.1105(b) says that the "majority of the court" gets to decide whether or not to publish, but I had always thought it was the author who signed the publication order, rather than the P.J.  Guess not.)

Monday, November 09, 2020

People v. Falcon (Cal. Ct. App. - Nov. 9, 2020)

You read all these Senate Bill 1437 opinions these days; it's a fair amount of work for both trial courts and the Courts of Appeal.  But such is life.  Most of the opinions are unpublished, and even the ones that are published typically don't involve complicated legal doctrine or merit substantial comment.

But I'm legitimately confused about this one.

Christopher Falcon was charged with first degree murder, but pleaded no context to second degree murder.  After Senate Bill 1437 was passed, he filed a petition for resentencing, and included a claim under penalty of perjury that "an information was filed against him which permitted the prosecution to proceed under a theory of felony murder or under the natural and probable consequences doctrine."

The rule is that he's typically entitled to a hearing to see if, indeed, he might have been found guilty under such a theory.  But there's a limited exception that says that a trial court doesn't have to hold a hearing if the underlying documents prove "as a matter of law" that petitioner is ineligible for relief.

There's no trial here, so we can't look at a trial transcript.  So the trial court and Court of Appeal look to the charging document and his preliminary hearing to see if "as a matter of law" he's ineligible for relief.

As for the charging document, it indeed charges him with first-degree murder, having allegedly committed the crime "unlawfully, and with malice aforethought."  But that doesn't prove that he actually engaged in the complained-of conduct.  The Court of Appeal says that this document does not "suggest" that Mr. Falcon "was being prosecuted under the natural and probable consequences doctrine or the felony murder rule" and that, instead, it "suggests he was being prosecuted as a principal."  I agree.  But it doesn't preclude the prosecution from proving his guilt under the felony murder doctrine.  We routinely charge people with first-degree murder in cases in which we in fact end up getting a conviction under the felony murder doctrine.  I don't see how the charging document proves anything close to the fact that "as a matter of law" Mr. Falcon couldn't have been convicted of felony murder.  Any reliance on the charging document is further undercut by the fact that it charged him with first degree murder but that's not what the offense for which he was found guilty; he pleaded no contest only to second degree murder.  So concluding that his being charged with first-degree murder proves as a matter of law that his conviction for a different crime must not have been pursuant the felony murder rule seems a super stretch.

That leaves the preliminary hearing transcript, and at that hearing, a witness testified that about five seconds after approaching the victim, Mr. Falcon told an associate to get his gun out, the associate shot the victim, and then Mr. Falcon said "That's how we do it" (an alleged reference to a gang shooting in response to disrespect).  To me, the meat of that testimony actually supports Mr. Falcon's claim that he was not, in fact, the actual shooter, which is the precise basis for 1437 relief.  Now, it may well be that if Mr. Falcon in fact told the shooter to commit the offense, then he may not be eligible for relief under Senate Bill 1437, since he's more of an "active" participant at that point.  But that there's testimony at a preliminary hearing doesn't necessarily mean that such testimony is true.  Presumably Mr. Falcon will say -- consistent with his declaration in his petition -- that it's not true, and that his associate instead shot the victim on his own.  If that's what a factfinder will conclude actually happened, then I suspect that Mr. Falcon would indeed be eligible for resentencing; the whole point of the hearing would be to figure out whether Mr. Falcon in fact was an active participant or was instead, as he claims, guilty of murder because he was admitted engaged in a felony (e.g., approaching the victim in an attempt to assault and/or intimidate him) and did not in fact direct his associate to shoot the guy.

So I'm confused how the Court of Appeal can conclude as a matter of law that Mr. Falcon's ineligible for relief.  It's a factual dispute.  That's the antithesis of a categorical legal conclusion.  So it would seem to me we have to have a hearing as to what, in fact, went down.  If the witness was right, then Mr. Falcon's original sentence stands.  If the witness was wrong, then Mr. Falcon potentially is entitled to get resentenced.

For someone who teaches Civil Procedure, it just seems strange to me that a genuine factual dispute -- Mr. Falcon's sworn testimony, on the one hand, and the witnesses' contrary sworn testimony on the other -- somehow gets labelled by the Court of Appeal as a factual conflict that proves "as a matter of law" that one of these factual claims is right and the other is wrong.  I definitely did not (and do not) think that's the way it works.

Friday, November 06, 2020

Levy v. Only Cremations for Pets, Inc. (Cal. Ct. App. - Nov. 6, 2020)

This opinion by Justice Ikola certainly seems right.

You want your pet cremated in a "private" cremation -- that way, they're cremated separately, and you get their (and only their) ashes back, rather than being cremated with a ton of other animals and having their ashes scattered at sea.  It costs more, but you think it's worth it.

You tell your veterinarian to make it happen, and they contract with a crematorium.  The latter then does not do what they agreed to do -- instead, they (allegedly) give you ashes that aren't even those of your pet.  So you sue.

The trial court says you can't, since you didn't have a direct contract with the crematorium.  But Justice Ikola says that you may well be a third party beneficiary, which seems spot on.  And, yes, you can perhaps get emotional distress damages.  After all, the only reason you did this thing was to get "emotional peace" from the cremation, and that's what the defendant deprived you of.

That's all persuasive to me.

Thursday, November 05, 2020

People v. Lamoureaux (Cal. Ct. App. - Nov. 5, 2020)

Here's someone who definitely ended up in a much better condition than her original status.

In 2013, a jury convicted Patty Lamoureux of conspiracy to commit robbery and felony murder.  She's not the actual killer, but, again, felony murder, so she receives a hefty sentence.  Long.

As in:  LWOP.  Life without the possibility of parole.

Can't get much longer.

In 2015, the Court of Appeal concluded the evidence was insufficient to support the jury’s finding that Ms. Lamoreaux had an intent to kill or acted with reckless indifference to human life, which meant that LWOP wasn't an option.  So it remanded for resentencing, at which point Ms. Lamoreaux gets 25 to life.

Still long, but better than LWOP.

Then the Legislature passes Senate Bill 1437, which allows people sentenced to murder who weren't the "actual killer" to apply for resentencing.  So Ms. Lamoreaux files the relevant petition in 2019.  The trial court held that the statute was unconstitutional, but a divided panel of the Court of Appeal reversed and remanded.

And on remand, Ms. Lamoreaux gets resentenced to . . . six years.

Which in turn meant she immediately got released from prison, since with good conduct credits, she'd already served her full sentence.  (Indeed, she was already out on bail at this point, since that's what it was looking like after the Court of Appeal's opinion.)

So initially sentenced to LWOP, in the end, Ms. Lamoreaux only serves six years or so.

A pretty big turnaround.

Wednesday, November 04, 2020

McCluskey v. Henry (Cal. Ct. App. - Nov. 2, 2020)

I readily admit that prosaic appellate opinions in California are probably not the highest priority for pretty much anyone in the post-election too-close-to-call-refreshing-my-screen-every-five-minutes era.  Still, we have some opinions coming out -- albeit not all that many.  So read them we shall.  There's (pretty much) always something interesting.

Like this one.  (Though it came out on Monday!)

It's pretty rare to get an attorney successfully sanctioned under CCP 128.7 who's competently trying to avoid sanctions.  There are a fair number procedural rules you've got to follow, and then there's the key substantive component of having to prove that what the other side's done is affirmatively frivolous.

Yet not only did the attorney get sanctioned, but for a fairly hefty amount:  over $22,000.

The sanctioned lawyer is Los Angeles attorney Michael Mogan.  Now he not only has to pay the tens of thousands of dollars in sanctions, but also has a published opinion that publicizes them to the world.  With the additional note that his appeal of the sanctions order against him "comes right up to the line of sanctionable conduct" as well.  ("Close to all of arguments offered by Mogan – 19 issues presented in question form – 'are not supported by a careful reading of the record or the law nor could these arguments be reasonably characterized as presenting unique issues or arguing for extension, modification, or reversal of existing law.' [Cites] By forcing us to examine those myriad arguments before rejecting them as having no factual or relevant legal support, Mogan has caused a 'useless diversion of this court’s attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'”)

Plus Mr. Mogan has to report the sanctions to the State Bar.

All in all, not a great result for him.

Tuesday, November 03, 2020

People v. Stockman (Cal. Ct. App. - Nov. 3, 2020)

Christopher Stockman is driving while intoxicated and hits a bicyclist from behind, killing him.  Mr. Stockman blows a .18 and .19 when he's tested, and has a BAC of .14 in a blood sample taken two hours after the accident.  So the guy's fairly clearly driving drunk when he hits and kills someone.  (Not that it matters, but FWIW, the person he killed was Gerald Weiss, a 52-year old neurosurgeon.)

I was surprised by the sentence he received.  What do you normally think it would be?

I would not have thought that it would be . . . probation.  Five years of probation and a five year suspended sentence.  So no jail time.

Not what I expected to see.

Y.A. v. S.A. (Cal. Ct. App. - Nov. 3, 2020)

For some reason, I have a different reaction to this case than I typically have to cases arising out of our adversary system.

Normally, I'm pretty much fine with mandatory appeals, appointed counsel, vigorous argument, and the like.  Take criminal cases, for example.  The state's taking away someone's liberty, so we want to make sure we're doing the right thing.  We're not entirely confident that a single judge will necessarily get all facets of the decision right, so we make sure we file an appeal on the defendant's behalf.  Maybe we can't find any colorable arguments so we file an Anders brief.  But if there are tolerable arguments to make on appeal, we make 'em.

I've got not substantial problem with that.  Yes, it costs society some time and money, and isn't necessarily very productive on a practical level.  But the defendant typically wants to at least try, and that seems to me a reasonable request.  So if appointed counsel gives it a shot, fine.  That's the way the system works.

Yet, notwithstanding those general beliefs, when I read this opinion, I thought to myself:  I would not want to be the appointed lawyer for the appellant in this case.

It's a guardianship case.  S.A. (I'll call her "Sarah") is 33 years old, and has some issues.  So the court has appointed her mother, Y.A. ("Yvonne"), as her guardian.  The question is whether that guardianship should continue.

The trial court found that it should.  So Sarah appeals, and her appointed counsel argues on Sarah's behalf.

Of course, Sarah's got a right to counsel, and her liberty's being taken away, so on a systemic level, I've got no problem with the way that system works.

Yet the more I read the opinion, the more I thought:  "I really wouldn't want to be Sarah's lawyer in that case.  I'd feel like I wasn't doing anyone any good."

It's not just that Sarah's not going to win.  That's the usual outcome on appeal, after all.

It's instead that, in truth, Sarah totally needs a guardianship.  So to argue that she shouldn't have one just seems to me to be arguing for something that you know full well is affirmatively bad.

Sarah's essentially has schizophrenia.  She's got an exceptionally distorted version of reality -- all that despite being (involuntarily) medicated.  She believes that Yvonne is not, in fact, her mother, but is instead an illegal alien from India who kidnapped her as a child and needs to be reported to Homeland Security.  Who's Sarah's real parents?  According to Sarah:  Michael Keeton and Michelle Pfeiffer.

One of several problems with this belief is that Sarah has Indian heritage, so doesn't necessarily look like the biological child of Ms. Pfeiffer and Mr. Keeton.  But Sarah believes that she, in fact, "has American features," and further believes that the antipsychotic drugs that she's been forced to take have "darkened her skin" -- which (among other reasons) is why she plans to stop taking them once she no longer has a guardian.  She denies that she has schizophrenia or any other mental illness; instead, she insists it's Yvonne, her kidnapper, who allegedly is the schizophrenic one.

What are Sarah's plans if her guardian is removed and she's released from the hospital.  She plans on "getting a degree in fashion" and "looking for her real parents" to take care of her and reconnect with them.  To say that these plans are, in reality, less than realistic is an understatement.  I feel confident it would not work out well were Sarah to show up unannounced (or otherwise) at Keeton's or Pfeiffer's home.

The point is this:  I feel bad for Yvonne.  As well as Sarah.  It's gotta be extremely tough to deal with a child who's in this situation and who has such a distorted vision of reality.  And, yes, I'm sure it's clearly confusing and frustrating for Sarah, who (by all accounts) sincerely feels like she's been kidnapped and kept from her movie star parents.

But I'm exceptionally confident that the best thing for Sarah is to retain the guardianship, stay in the hospital, and keep trying to get better.  Not because the status quo is awesome.  But rather because the available alternatives are far, far worse.

And I wouldn't really be all that into arguing otherwise.

Not surprisingly, the Court of Appeal agrees with the trial court, and so Y.A. remains her daughter's guardian.  Great.  Everything "works out" in the end as it should.

I just wouldn't personally want to be the person arguing for a different result.

Monday, November 02, 2020

Coleman v. Saul (9th Cir. - Nov. 2, 2020)

There's only one published opinion from the Ninth Circuit and California appellate courts thus far today.  And when I first saw it, I thought it wouldn't likely be something worth writing about.  It's a Social Security disability case.  You see those published from time to time.  They're almost always fact-specific to the particular plaintiff involved and his or her specific complaints.  Not doctrinally complicated, at least usually.

Which is indeed true for today's opinion.  It's basically just about whether Travis Coleman is in fact a person who's disabled from working.

But what makes the case interesting -- at least for me -- is that I suspect that Mr. Coleman's problem is one shared by a nontrivial number of people in America these days.

Mr. Coleman says he suffers an immense amount of pain.  Pain that's so severe to be debilitating, and that prevents him from doing his usual IT job.  (Because, in essence, "all he can think about is the pain he's in," not his actual occupation.)  Of course, pain is inherently subjective; you can often see its objective cause, but sometimes you can't.  And, obviously, sometimes people can say they're in pain (perhaps in an attempt to get disability benefits) when they're actually not.  So it's necessarily hard to figure out whether someone's actually in pain.  The issue relies a lot on credibility calls.

Mr. Coleman's various doctors and nurses are split on whether they can find an objective cause for his subjective complaints of pain.  Some say there's nothing there -- or at least nothing they can find.  But others say that, yep, there's a spinal problem that may well explain why he says he's in severe pain.

But the ALJ thinks there's an alternative explanation for what's going on here.  One that isn't as simple as just "he's lying about pain just to get money."

The ALJ concludes that Mr. Coleman says he's in pain not particularly to get money, but rather to get drugs.  Painkillers.  Opioids.  What's the evidence for that?  Well, there's the fact that he went to his first doctor for multiple years, but then stopped going to that doctor "after the doctor declined to prescribe additional pain medication."  Then there are the facts about just how many pain pills Mr. Coleman has received:

"Between the end of May and early June 2015, the record shows that Coleman visited the emergency room on three separate occasions with reports of severe neck pain. When he arrived at the ER on June 5, the ER doctor declined his request for pain medication, noting that an Emergency Department Information Exchange alert showed multiple prescriptions for pain medication being filled by multiple providers, with approximately 380 pills in the last 30 days and 800 pills in the last five months. When Coleman returned the next day with reports of even more severe pain, he was again denied pain medication."

Multiple providers and lots of pills.  380 pills in 30 days is approximately a dozen pain pills a day.  That is a fair amount, no?

So the ALJ says that this is indicative of classic drug-seeking behavior.  Though you see what the underlying problem is, right?  Sure, he's (probably) got a drug problem.  But is the drug problem a result of constantly being in pain (in which case, yeah, he's likely disabled), or is it instead a drug problem masquerading as a pain issue?  Or, perhaps, something in between; he's got an opioid problem, and since he takes too many drugs, his synapses and the like are now all messed up, and he's now in constant pain as a result?

It's a toughie to be sure.  And I'm quite confident that Mr. Coleman -- whatever the truth -- is not alone in his status.

The Ninth Circuit ultimately affirms the lower tribunals.  There was a credibility call made that Mr. Coleman was engaged in drug-seeking behavior and that his stories weren't credible.  The Ninth Circuit defers to that determination.  So no disability benefits for him.

Which is why it makes sense to publish this opinion.  Because I'm sure this is neither the first nor the last case about alleged drug-seeking patients and subjective complaints of pain.

Far from it.