Friday, December 31, 2021

Elmore v. Gordon (Cal. Ct. App. - Dec. 30, 2021)

Maybe I'm crazy, but if I'm driving a vehicle with a blood alcohol content of approximately double the legal limit, I'm probably not going to cruise to within 15 yards of the Mexican border and then do a U-turn while peeling out once I spot the inevitable border patrol vehicle.

Especially if I'm so drunk that I've peed myself.

Also, I probably wouldn't appeal the ultimate suspension of my license, either.  Because not only would I lose, but it might also result -- like here -- in a published opinion that mentions my full name.

A series of unfortunate decisions.

Thursday, December 30, 2021

Sellers v. JustAnswer LLC (Cal. Ct. App. - Dec. 30, 2021)

If you're looking for a California case that refuses to enforce a "browsewrap" arbitration and class action waiver clause, this is the opinion for you.

Not only is the holding what you're looking for, but it's 50+ pages of history and precedent and everything you ever wanted to know about the validity of arbitration agreements in analogous situations.

Comprehensive, to say the least.

Tuesday, December 28, 2021

Kalbers v. DOJ (9th Cir. - Dec 28, 2021)

I'm not sure where all this is coming from.

It's a fairly routine-ish case.  A professor from LMU -- Lawrence Kalbers -- is interested in the VW "Dieselgate" scandal, so submits a FOIA request for various documents; in particular, the reports submitted to the DOJ by the Monitor after VW's guilty plea, as well as the evidence that VW told investors in its annual report that it showed the DOJ at the time.  Seems fairly relevant to me.

But the DOJ doesn't want to disclose the documents, so Professor Kalbers sues.

The DOJ drags its feet in the litigation, but after a year or so, the case starts picking up a bit, and the parties are going to file summary judgment motions.  At which point Volkswagen moves to intervene in the litigation.  The district court denies the motion to intervene on the grounds, inter alia, that VW waited way too long to file its motion, particularly since it knew about the litigation for around a year before even looking to get involved.

The Ninth Circuit reverses, in an opinion by Judge Owens.  He says the motion was timely.

You can make arguments for and against the Ninth Circuit's resolution.  Reasonable minds can differ on the various points.

What surprised me the most, however, was the occasional tone of Judge Owens' opinion.

The opinion is fairly hostile to the district court's decision.  Now, some of this is just being aggressive on the merits.  Simply a matter of style.

But take a gander at footnote five, for example.  That footnote's about the fact that when it filed its motion to intervene, VW never told the district court that it knew about the litigation way before the DOJ sent it a formal letter notifying it of the case; instead, VW's timeliness motion pretended as if it only knew about the case once it received the letter.  When the district court found out about this, not surprisingly, it was . . . miffed.  And said so.

The Ninth Circuit opinion accurately noted in the footnote that "the district court severely criticized VW's counsel for 'misrepresentation of the record' and a 'lack of candor'" regarding when it first knew about the lawsuit.  And the opinion agreed in that same footnote that "[t]o be clear, VW's motion to intervene should have disclosed the initial 2018 notice and argued for its irrelevance from the get-go," rather than simply hiding that fact.  But then the footnote ends with:  "However, the record does not support the district court's overheated accusations of unethical conduct towards VW's counsel."

I was more than a little surprised by the inclusion of the word "overheated" there.  You usually don't refer to a district court's reasoning or rhetoric in such a fashion.  It's a bit . . . personal.

Are there some judges who are notoriously subpar and for whom the Ninth Circuit occasionally goes out of its way to make sure everyone knows it?  Sure.  But Judge Olguin isn't one of them.  Indeed, the tenor of the opinion was sufficiently surprising that I spent a little time trying to figure out if there was a discernable reason why Judge Owens would be so snippy here.  Did he have a run-in with Judge Olguin when they were both in Los Angeles; e.g., when Judge Olguin was a magistrate/judge and Judge Owens was a lawyer?  Not as far as I can tell.  Did Judge Owens personally know any of the various Sullivan & Cromwell lawyers who were slammed in Judge Olguin's opinion?  Ditto; couldn't see any obvious connections.

Maybe Judge Owens had merely gotten up on the wrong side of the bed that morning.  Or maybe he simply didn't like what he thought was an unjustified attack on counsel -- though, I gotta say, since it seems actually true that VW "neglected" to mention a super important fact in its motion to intervene, my personal view is that it's not super crazy for the district court to say that might show a "lack of candor" on the part of those lawyers.

For whatever reason, Judge Owens thought it important to fairly aggressively stomp down the district court in the process of reversing its decision.  So that's what he did.

Volkswagen gets to intervene.

Monday, December 27, 2021

People v. Zgurski (Cal. Ct. App. - Dec. 27, 2021)

It's the last Monday in 2021.  Thank goodness.

The lesson that I get from today's Court of Appeal opinion is the following:  Don't buy stuff online unless it's from a well-known seller (e.g., amazon).  Even if you're using an escrow service or whatever, the ways that you can get scammed out of your money are essentially infinite.

Otherwise, as here, your money may well end up in Russia.

I'm actually stunned they ended up catching any of the people here.  And the main wrongdoers seem to have gotten away with it anyway.

But at least they catch the guy who picked up an "easy" $1000 by being a strawman who opened a bank account.  Though he's such a minor player he only gets a misdemeanor and probation.

Meanwhile, Russia keeps the money.

Wednesday, December 22, 2021

People v. Howard (Cal. Ct. App. - Dec. 22, 2021)

Just last night, at a holiday gathering, someone -- a non-lawyer -- asked me to explain what a "Franklin hearings" was.  (I know, I know; that's super geeky, but in my defense, I was sitting next to a guy who does 'em.)  Lo and behold, today, Justice Moore does a better job than I did.  She says:

"Broadly speaking, a Franklin proceeding allows youth offenders sentenced to long prison terms an opportunity to introduce into the record mitigating evidence relating to their youth. As explained in the case for which it is named, People v. Franklin (2016) 63 Cal.4th 261 (Franklin), the purpose of this proceeding is to preserve such evidence for consideration at future parole hearings. . . . . Franklin processes are more properly called ‘proceedings’ rather than ‘hearings.’ A hearing generally involves definitive issues of law or fact to be determined with a decision rendered based on that determination. [Citations.] A proceeding is a broader term describing the form or manner of conducting judicial business before a court. [Citations.] While a judicial officer presides over a Franklin proceeding and regulates its conduct, the officer is not called upon to make findings of fact or render any final determination at the proceeding’s conclusion. Parole determination [sic] are left to the Board.” (In re Cook (2019) 7 Cal.5th 439, 449 fn. 3 (Cook).)"

There you go.

In re Emily L. (Cal. Ct. App. - Dec. 21, 2021)

Family is (obviously) important during the holiday season.  For some of us, the college kids come home; for others, older children (and perhaps grandchildren) sometimes visit, and those with younger kids have them home from school a bit more.  There's an obvious upside to all that contact, and maybe, on occasion, some downsides as well.

But whatever negative interactions you might -- or might not -- have with your relatives hopefully won't be as bad as this.

Here's the mother's story of her relationship with her 15-/16-year old daughter Emily:

"Mother said Emily’s behavior was “uncontrollable.” Emily has a “strong character” and does not want to follow any of the house rules or hear any type of redirection or advice from her parents. She came home from school around 8:00 or 9:00 p.m. When Mother would call to find out where she was, Emily did not answer the phone calls or turned off her phone, which worried Mother. Emily was currently failing her classes. Both parents were trying to motivate and help Emily with school. Both parents had tried to discipline her by taking way her phone and WiFi privileges. Mother suggested they do things together in an effort to build a better bond, but Emily refused. Emily appeared to Mother to prefer spending time with her friends than with her family.

Mother described the start of the altercation. She found photos of Emily posed in a bikini lying down on a bed. She believed Emily’s boyfriend took the photos. Mother ripped them up so they could not be used to bully Emily. When Mother told Emily she had destroyed the photos, Emily began throwing things around the bedroom they were in. She then began to advance toward Mother. Laughing, Emily started to rip up photos of her younger self. These included photos of Emily with her best friend, which Mother knew had sentimental value to Emily because her best friend had just moved away. Emily tried to hit Mother, who grabbed Emily’s wrist to keep from being hit. Emily grabbed the bunk bed ladder and began to push it in Mother’s direction. Mother had never seen Emily like this and was scared by her behavior. Emily pushed Mother, Mother pushed back, and Emily punched her. Mother tried to hold Emily’s wrists to stop the punching. Emily kicked Mother in the stomach and they grabbed each other’s hair. They fell to the floor; Emily climbed on top of Mother and began to hit her with a closed fist. Mother still had Emily by the hair. They stopped fighting and Emily went into the living room where she began kicking a glass table. She overturned the living room loveseat.

Mother decided to call 911 because she did not know what else to do. Emily moved to the kitchen and began kicking the refrigerator and opening cabinets, throwing everything to the floor. Emily then charged Mother and began kicking her torso. At that point, they grabbed each other by the hair and fell to the floor again. Emily again began punching Mother with a closed fist. Mother flipped over and choked Emily with one hand to get her to stop."

Makes those "uncomfortable holiday dinner conversations with relatives" look fairly minor, eh?

Monday, December 20, 2021

People v. Lange (Cal. Ct. App. - Dec. 20, 2021)

I'm trying to figure out the incentive effects here.

Obviously, with an increasingly conservative Court, the exclusionary rule has been cut back during the past couple of decades.  Not overruled, not (entirely) gutted, but definitely cut back.  We don't like to exclude evidence, so we come up with a zillion different exceptions.

The one that the Court of Appeal applies today is the "good faith precedent" exception.  Basically, if the police officer did something wrong -- here, entered a house without a warrant -- but the wrong was okay under then-existing precedent, we're cool with it.  No exclusion.  Even if, as here, the officer didn't rely upon, or even know about, that precedent.  It's an objective inquiry.

The theory is that the officer didn't do anything "wrong" in such a setting -- apart from violating the Fourth Amendment.  More accurately, she didn't do anything "wrong" that we feel like deterring.  Since precedent at the time allowed the search, we don't feel like excluding the resulting evidence even if the Supreme Court ultimately holds that, yep, actually, searches like that are illegal and unreasonable.

But here's my question:  if that's the rule, doesn't that negate any rational incentive to change the law; e.g., to argue that an existing policy violates the Constitution?

Today's opinion is a perfect example.  Defendant drives past the police -- allegedly under the influence -- as he's literally four seconds away from his home; noise blaring, honking his horn, etc.  The officer turns on her lights and follows him, but, again, he's 100 feet from his home anyway, so rather than pulling right over, he pulls into his garage, and the officer follows him into the residence and starts questioning him.  He says that violates the Fourth Amendment since it's a warrantless intrusion.

The trial court disagrees.  It's a misdemeanor offense, so it goes to the Appellate Division, and then the Court of Appeal, which holds -- in an unpublished opinion -- that it's categorically okay for police to follow people into their homes when they're "fleeing', even for minor misdemeanors.  The California Supreme Court doesn't feel that issue's sufficiently important to grant review.

But the United States Supreme Court does.  It accepts the case, and rules that, nope, there's no categorical rule that allows warrantless entries into a home for "fleeing" suspects; rather, it's a case-by-case inquiry.  There's a lot of fight between the various justices on what things we should take into account on a case-by-case approach, but that's all left for another day; for now, the Court of Appeal was wrong to apply a categorical rule, so the case gets remanded back for consideration under the Court's new case-by-case approach.

But, today, on remand, the Court of Appeal doesn't do that.  Instead, it reinstates its prior holding.  Not by seeing whether the entry was warranted under the Court's new case-by-case holding.  But rather on the theory that because its erroneous categorical rule was the law at the time, the exclusionary rule does not apply, regardless of the fact that the Supreme Court granted certiorari and reversed the judgment below in this very case.

Here's the rub, though.  If today's opinion is right, what's the incentive for litigants like the defendant here (Lange) to argue for a violation of the Fourth Amendment.  Even if they're right, they won't get a victory in their particular case -- just like Lange, here, wins in the Supreme Court, but still ends up a loser, since the victory he won (the case-by-case approach) doesn't get to apply to his own case.  That's true not only for Lange, but for everyone else as well.  Winners get prospective relief -- for others -- but that doesn't help them at all.  They still get convicted under the old, erroneous view given the exception for "reliance on precedent."

So it's essentially a one-way rachet.  Once an intermediate appellate court first decides that something doesn't count as a Fourth Amendment violation, the defendant has an incentive to appeal and get that reversed.  But thereafter, once there's a precedent, for all practical purposes, that holding is locked in; no defendant has any incentive to challenge it, since even if successful, that change won't benefit him.  By contrast, if an intermediate court decides that something does violate the Fourth Amendment, there's no lock-in; in future cases, the government has every incentive to ask that the precedent be changed, because if it changes, there's no exclusion in the present (and future) cases, all of which is to the state's benefit.

That just seems how the law works here.  Which is different than in pretty much every other area.  We generally -- and purposefully -- give legal changes retrospective (rather than merely prospective) effect in order to incentivize litigants to challenge existing precedent.  That system works.

Yet we don't use it here.

Friday, December 17, 2021

Russell v. Dep't of Corrections (Cal. Ct. App. - Dec. 16, 2021)

Stockton attorney Kenneth Meleyco had a very bad day.

The Court of Appeal affirmed the award of $1500 in sanctions against him based on repeated violations of a court order regarding his argumentative opening statement in a civil case.  Sucks, eh?

But at least the result of that trial was super good.  He got a $2.7 million verdict against the defendant for his client, so that's a fat contingency fee, right?

Except the Court of Appeal reversed that as well, and entered judgment for the defendant notwithstanding the verdict.

Some days it sucks to be you.

P.S. - Someone should eventually think -- or write about -- the provision under which Mr. Meleyco got sanctioned, CPP 177.5.  That statute provides: "A judicial officer shall have the power to impose reasonable monetary sanctions, not to exceed fifteen hundred dollars ($1,500), notwithstanding any other provision of law, payable to the court, for any violation of a lawful court order by a person, done without good cause or substantial justification  This power shall not apply to advocacy of counsel before the court."  Just based on the statutory text contained in that last paragraph, you'd think that you couldn't be sanctioned under that provision for oral arguments, whether in front a judge or jury, right?  After all, that's at least textually "advocacy" by counsel "before the court."  But I looked up the relevant precedent on this point -- Mr. Meleyco didn't raise this argument, nor did the Court of Appeal address it -- and it seems like the California courts pretty much routinely hold that this exception doesn't apply when an attorney violates a court order, on the theory that once the judge hears your objection and then rules against you and tells you not to do it again, that's no longer "advocacy" since the court's already ruled against you.  But not only is that, to me, not the common meaning of the word "advocacy," but it also seems to make the exception meaningless/superfluous, since the first sentence already says that you can be sanctioned only if you violate a lawful court order.  So if violating a court order doesn't count as advocacy, then the exception for advocacy by definition never applies, since you can only be sanctioned in the first place if you've violated a court order.  No?

Thursday, December 16, 2021

Wheeler v. Appellate Div. (Cal. Ct. App. - Dec. 16, 2021)

It's final examination time, so that means tons of students in my office, and not much time to catch up on appellate opinions.

Nonetheless, I wanted to take time out to help the trial court on remand in this one.  As well as to make some substantive points.

It's a misdemeanor case in Los Angeles against Emily Wheeler.  She's an 85-year old woman who owns a commercial storefront in LA that she rents out.  It seems like the actual business is run by her son, but she is the record owner of the property, so her name's on the title.  Unbeknownst to Ms. Wheeler, apparently one of the tenants ran a cannabis business out of her storefront without the proper license.  So the LA City Attorney files criminal charges against Ms. Wheeler and her son, alleging violation of an LA ordinance that purportedly makes owners criminally strictly liable when their property is used for illegal marijuana operations.

Okay, so that's what the law says.  So they drag this 85-year old woman into court for something about which she has absolutely no idea.

The trial judge (actually, a commissioner, since it's a misdemeanor) isn't particularly psyched about that.  Understandably.  On her own motion, the commissioner dismisses the charges pursuant to Section 1385 of the Penal Code, which provides: "The judge or magistrate may, either of his or her motion or upon application of the prosecuting attorney, and in the interests of justice, order an action to be dismissed." She concludes that it's manifestly "in the interests of justice" to dismiss this criminal prosecution, saying:

“You have a woman born in 1934 who has no prior criminal history. There is nothing to suggest that she knows anything about this, other than the fact that she owns the property, and the Code says, ‘in the interest of justice;’ and I think justice can only be served if a person who has lived an exemplary life for 80 plus years, and finds herself, because she owns property, and that property is leased to another individual, and that individual is operating a dispensary, that says to this court that justice would properly be served by dismissing the case in its entirety against Ms. Emily Wheeler. . . . I don’t see where justice requires that she be subjected to prosecution on a situation where there’s no showing that she even knew anything about it.”

So there you have it.  The actual dispensing of justice.

The Appellate Division reversed, and the Court of Appeal agrees with 'em.

The panel recognized that "interests of justice" is a pretty darn broad standard, but held that since the underlying statute was a strict liability offense, the trial court couldn't simply dismiss the charges due to absence of mens rea.  That'd be somewhat akin to just disagreeing with the underlying statute in the first place.  Can't do that.  Gotta be for a different reason, if at all.

So the Court of Appeal reverses the dismissal, and remands the case back down.  The Court of Appeal concludes the opinion by saying: "Upon remand, the trial court may, upon its own motion, reconsider whether to dismiss the charges in the interests of justice, on the basis of factors other than Wheeler’s lack of knowledge."

Great.  Got it.  I totally understand the basis for the holding.

So let me help the trial court out on remand.  Here's exactly what I'd say:

"The Court of Appeal has concluded that lack of knowledge is not a basis for dismissal of the present suit in the interests of justice.  Wonderful.  I hereby dismiss the present action against Ms. Wheeler on the following bases:

First, I find that the interests of justice are best served by imposing no further adverse consequences upon Ms. Wheeler beyond those that have already been imposed.  She is an 85-year old woman with zero criminal history.  Based upon her mere record ownership of a piece of property, she has now, for the first time in her life, been arrested and charged with a criminal offense.  She has had to obtain and work with an attorney to attempt to defend her liberty and reputation.  She has had to defend an appeal to the Appellate Division and the Court of Appeal.  The life and comfort of this 85-year old woman has been substantially disrupted already.  I conclude that the interests of justice would not be advanced by the imposition of any further criminal liability, nor the imposition of any criminal penalty nor additional criminal proceedings, against this 85-year old woman based upon her record ownership of property.  I do not negate the wisdom of the underlying ordinance, but in the unique circumstances of this case, I find that additional criminal prosecution of this action against this particular defendant would not be in the interests of justice.

Second, and independently, I find that the further expenditure of additional private and public resources on the prosecution of this action would not be in the interests of justice.  The present case involves a misdemeanor, and a nonviolent one at that.  The defendant is of advanced years and imposes zero threat to the public.  She has no criminal history.  Without prejudicing the merits of the case, it is extremely unlikely that, even if convicted, Ms. Wheeler would be subjected to anything other than informal probation, if that.  Her continued prosecution will require the devotion of a nontrivial amount of public, private and judicial resources.  The City Attorney will have to be paid.  A public defender will have to be paid.  Court reporters, clerks, judges, and associated staff will all be involved.  Meanwhile, criminal courts are already overburdened with cases, including ones far more serious than the one involving Ms. Wheeler.  Every dollar and second devoted to Ms. Wheeler constitutes resources that could, and should, be better devoted to more pressing matters.  Particularly in an era in which misdemeanor retail theft is (at least perceptionally) exploding in scope, the continued expenditure of additional resources to the prosecution of Ms. Wheeler would not be in the interests of justice, nor society as a whole.

Finally, I conclude that the interests of justice compel dismissal of the present action due to the risks to Ms. Wheeler engendered by continued prosecution.  It bears repetition:  Ms. Wheeler is an 85-year old woman.  Lest anyone fail to notice: she is also an 85-year old woman living in the midst of a global pandemic, and one that is particularly dangerous (and deadly) to our elderly residents.  Prosecution of Ms. Wheeler requires her to consult with lawyers, interact with judicial staff, and potentially enter into public spaces (including, perhaps, a public courtroom).  Even if Ms. Wheeler takes every available precaution possible -- full vaccination, masks, video conferencing when available, etc. -- the continued prosecution of this action is very likely to non-trivially increase her risk of becoming infected with a deadly virus.  Even beyond COVID, her continued prosecution undoubtedly will cause her worry, concern and stress, all to her detriment and none of which will be beneficial to her continuing health.  I hereby conclude that the risk to Ms. Wheeler and others of her continued prosecution outweighs the social interest in her continued prosecution for the present misdemeanor offense.

Ms. Wheeler lived through the Great Depression.  Her early years were spent during the horrors and deprivations of World War II.  Her late teens and twenties were spent during the purportedly halcyon years of the 1950s, which -- despite contemporary nostalgia by some -- was not an era of expansive freedom for women, particularly those (like Ms. Wheeler) who were just then coming into their own.  She is now 85 years old, and confronts a global pandemic with a material risk to her continued freedom, safely and (even) life.  She does not need the present misdemeanor criminal prosecution added on top of that.  It would not be in the interests of justice for it to persist.

The present charges are dismissed.  Ms. Wheeler:  Thank you for your contributions to society.  May your remaining years be filled with comfort, joy and security.  God speed."

Monday, December 13, 2021

U.S. v. Lozoya (9th Cir. - Dec. 13, 2021)

You usually don't see someone outvoted 10-1 in an en banc opinion.  That said, you also don't usually see a petition to recall the mandate get even a single vote.  Both of those things happen here.

Judge Collins is the single vote.

Wednesday, December 08, 2021

Brach v. Newsom (9th Cir. - Dec. 8, 2021)

I put the odds of the panel's opinion getting reversed en banc as roughly 4:1 in favor.  There's a chance the en banc court will come to the same conclusion as the panel, but only if the draw is heavy on active judges appointed by President Trump.

It's a high-profile case; one of the many about the constitutionality of various governmental responses to the global COVID pandemic.  This one's about the closure of in-person instruction at schools.  Plaintiffs say that this violates their right to educate their children.  California disagrees.

The panel opinion by Judge Collins holds that (1) the case isn't moot -- even though schools are no longer closed -- due to the "voluntary cessation" doctrine and the fact that schools might perhaps be closed again were COVID to flare back up; (2) the cessation of in-person instruction at public schools was fine, but (3) the order stopping in-person instruction at private schools was unconstitutional.  The dissent by Judge Hurwitz agrees with (2) but disagrees with both (1) and (3); moreover, he argues that the substantive due process argument about private schools upon which the majority relies was forfeited because it was never raised by plaintiffs in their complaint or briefing in the district court.

Today, the Ninth Circuit votes to take the case en banc.

Judge Hurwitz has some pretty darn good arguments, including ones (like mootness and forfeiture) that judicial conservatives are sympathetic to in most cases -- though, here, they'd stand in the way of taking a stand on a high-profile, hotly contested political dispute.  If the en banc panel draw is representative of the Ninth Circuit as a whole, I think that you'll see a majority agree with one or more of the points that Judge Hurwitz makes -- and, potentially, one of the smarter and/or more principled conservative judges might sign on to one of the procedural points that he makes.  But that's by no means assured; I could easily see a draw of six Ninth Circuit judges who would go Judge Collins' way, and that's all it'd take.

Still, overall, 4-1 in favor of reversing the panel's decision.  That's the line.

Monday, December 06, 2021

Duncan v. Bonta (9th Cir. - Nov. 30, 2021)

Lest it go without mention -- or be overlooked, since it's on page 101 of the 169 (single-spaced) pages generated by the opinion -- I wanted to just repeat what Judge Hurwitz said:

"I join Judge Graber’s opinion for the Court unreservedly. I ordinarily would not say more, but I am reluctantly compelled to respond to the dissent of my brother Judge VanDyke, who contends that the “majority of our court distrusts gun owners and thinks the Second Amendment is a vestigial organ of their living constitution.” That language is no more appropriate (and no more founded in fact) than would be a statement by the majority that today’s dissenters are willing to rewrite the Constitution because of their personal infatuation with firearms. Our colleagues on both sides of the issue deserve better.

I recognize that colorful language captures the attention of pundits and partisans, and there is nothing wrong with using hyperbole to make a point. But my colleague has no basis for attacking the personal motives of his sisters and brothers on this Court. His contention that prior decisions of this Circuit—involving different laws and decided by different panels—somehow demonstrate the personal motives of today’s majority fails to withstand even cursory analysis. By such reasoning, one also would have to conclude that my friends in today’s minority who, like me, are deciding a Second Amendment case for the first time, are also driven by personal motives.

Judge VanDyke has no way of knowing the personal views of other members of the Court about firearms. Indeed, members of the Court not among today’s dissenters have firearms in their homes. Members of this Court not among today’s dissenters have volunteered for service in the active military or the National Guard (the modern “well regulated Militia”) and bore arms during that service. But those personal experiences—or the lack of them—do not drive the decision on the important issue at hand."

Hear, hear.

Wednesday, December 01, 2021

People v. Lewis (Cal. Ct. App. - Nov. 29, 2021)

We know that when you have sex with a clearly intoxicated and incapacitated person, you can be found guilty of rape, because they can't actually consent.  What the majority and dissent disagree about in this opinion is whether, on that same theory, you can also be found guilty of kidnapping, on the theory that spiking their drink and getting them drunk means they also couldn't consent to being "moved" to your vehicle.

Justice O'Leary writes the majority opinion and says "No, they're two different crimes; for kidnapping, you need some level of force, not just deception."  Justice Bedsworth authors the dissent and says:  "Yep, in such a case, you didn't consent, so just like when you transport a sleeping person you can be guilty of kidnapping, ditto here."

Two starkly different views.  Though nice to see that both are presented without rancor or animosity towards the competing position/author.

Monday, November 29, 2021

U.S. v. Mora-Cobian (9th Cir. - Nov. 29, 2021)

We're all back from the long Thanksgiving weekend.  Condolences to those who had to work on Friday.

This year, Thanksgiving fell on Evacuation Day, which (unlike Thanksgiving) is always November 25.  Evacuation Day used to be the big holiday in November, but gradually got eclipsed by Turkey Day.  Oh well.  Regardless; here's to foreign troops leaving our soil.  (Though, to recall yet another war, they came back fairly rapidly.  But, thankfully, left again; no holiday for that one, though.)

I mention Evacuation Day because I thought about it when I read the opinion from the Ninth Circuit that came out this morning.  It's not about foreign troops; instead, it's about Jorge De La Mora-Cobian.  He's a guy from Mexico who came to the United States but got kicked out five years later for getting a DUI.  He stayed in Mexico for over a decade and made a life there.  But on July 17, 2016, he presented himself at the San Ysidro port of entry -- alongside his wife and three children -- and asked for asylum.  He said that he'd been kidnapped by members of the Nueva Generaci√≥n gang in Mexico, who cut off one of his fingers and sent it to his wife with a ransom demand.  (I suspect that this is a pretty credible claim, since it's hard to fake missing a finger.)  The gang came back and demanded more money, and two days later, Mora-Cobian and his family came to San Ysidro and requested asylum.

What does all this have to do with Evacuation Day?  Maybe not a massive amount, since Mexican troops have never really invaded the United States.  (Indeed, vice-versa.)  But the holiday popped into my head because on the actual evacuation day in 1783, George Washington celebrated the event with a dinner at Fraunces Tavern in New York City, alongside around a hundred well-wishers.  At that event, there were a series of toasts -- thirteen, in all.  The "Thirteen Toasts".  What Washington and his crew were the most thankful for after years of bitter warfare and upon finally obtaining liberty and freedom in this new nation.

Most of the toasts were to the usual suspects (at the time):  the new United States of America, the King of France (no small help in the war), the King of Sweeden (sorta helped), things like that.  But the eleventh toast was what popped to my mind when I read today's case:

"May America be an asylum to the persecuted of the Earth."

You can see why Mora-Cobian and his family want to come to America.  There's no doubt that they're persecuted.  Maybe not by an actual government, but persecuted regardless.  But we don't grant him or his family asylum.  We instead leave them to the vicissitudes of Mexico, sans a finger.  And when, with understandable fear for what will happen there, he comes to the United States anyway, we put him in prison, and the Ninth Circuit affirms.  (All that's in addition to the time he spent in detention in Georgia, Arizona and California when he originally requested asylum.)

Which may well be what the law requires.  On the legal merits, it's tough to find fault with Judge Tallman's opinion.

But my mind nonetheless hearkened back to Washington's celebratory toast.

So I thought I'd mention it.  Particularly as we return from the holiday weekend.

Wednesday, November 24, 2021

Nababan v. Garland (9th Cir. - Nov. 23, 2021)

Sometimes -- perhaps often -- the company of the friends you keep affects your worldview.  Even if you're a judge.

I'm agnostic as to whether Judge VanDyke's experiences are more accurate than mine.  You be the judge.

It's a case about whether the BIA properly evaluated changed circumstances in Indonesia, which in turn required the Ninth Circuit to decide if evangelical Christians were treated worse than different minority religions in Indonesia.  The majority thought that might well be the case.

But in Judge VanDyke's view, separating "Christians" from "evangelical Christians" was a "distinction without a difference."  Based on his experiences, Judge VanDyke believes that "the vast majority, if not all, Christians" attempt to convert other people to the Christian religion; i.e., are evangelical.  And Judge VanDyke expresses this belief in his opinion three separate times; it's not inadvertent.

My own experience is that (1) people commonly use the term "evangelical Christian" to mean something very specific and different from just your run-of-the-mill Christian, and (2) most -- or at least, many -- people of the Christian faith do not, in fact, actively seek to proselytize and convert people to the faith.

Now, I grew up in Virginia, whereas Judge VanDyke was raised in Montana.  And, unlike Judge VanDyke, before law school, I did not get a bachelor's degree in theology from Bear Valley Bible Institute.  Given our different backgrounds and life experiences, it might not be radically surprising if the qualities of the (many, many) Christians I've encountered in my life -- including but not limited to my entire family and extended set of relatives -- are perhaps a little different in the extent of their proselytizing than those at, say, the Bear Valley Bible Institute, or in certain conservative circles more likely to be frequented by Judge VanDyke than by me.

One might perhaps make a lesser claim than Judge VanDyke does, and assert that proselytizing is a tenet of the Christian religion. But I'm quite confident that some Christians take that interpretation quite a bit more seriously than others.  In any event, that something's a purported tenet of your religion does not necessarily mean that one actively practices it; for example, saying that all Catholics "abstain from premarital sex and don't use birth control" is fairly wildly inaccurate, at least in my experiences.

It's not unusual to see a judge's worldview reflected in his or her opinions.  But you don't generally see that principle extend to somewhat verifiable statements of fact.

Tuesday, November 23, 2021

City of Oxnard v. County of Ventura (Cal. Ct. App. - Nov. 23, 2021)

Justice Tangeman may well be right that this is what California's EMS statute requires. That's what the trial court thought, and on appeal, the panel unanimously agreed.

But, if so, my intuition is that the principle behind the statute might be silly.

The EMS Act says, essentially, that after 1980, if a city joins a joint powers arrangement with another city or county for the provision of ambulance services, it can't withdraw from that agreement.  Ever -- at least according to the Court of Appeal.

So no matter how terrible the ambulance company, no matter how abysmal the service, and no matter how deprived residents of the City are for ambulances, the City has no recourse.  Only the relevant county can decide -- and as long as the county is happy, that's the end of the matter.

Here, the City of Oxnard is understandably doesn't like the existing ambulance provider.  The city has a lot of poor people, whereas the county has a lot of rich people.  The ambulance company (allegedly) loves to hang out in the rich areas, and hate to pick up people in the poor areas.  The response time for calls in the city is a lot longer than the response time for calls in the county.  The "floater" ambulances were twice as likely to be located in rich areas than in poorer areas.  Delays in responding to city calls were twice the number of delays in responding to calls in the county.  Stuff like that.

No matter.  The county loves the ambulance company.  (Perhaps you can see why.)  But the city can't ever withdraw from the agreement and hire its own provider.  Again:  Ever.

I get the principle that there needs to be some stability in ambulance services so that companies can make investments and the like.  But it'd be more than sufficient for the statute to allow cities to leave after five or ten years or so.  That's more than enough time to recoup your investment.  Plus, the statute allows the county to leave whenever it wants, so that's hardly proof that companies need an infinite contractual period for sufficient stability.

Seems to me the statute should be amended.  The Court of Appeal didn't (at all) suggest that, so I thought I would.  Seems to me like there's a classic agency problem here; cities have limited input, so get hosed.

Good luck getting an amendment through the lobbyists for counties and ambulance companies, though.  Yet another agency problem.

Friday, November 19, 2021

Goulart v. Garland (9th Cir. - Nov. 18, 2021)

There are three opinions in this Ninth Circuit case.

Judge Paez writes a short (four paragraph), moderate opinion that affirms the denial of a request to reopen an immigration case; as a result, the petitioner stays deported.

Judge VanDyke concurs in the judgment and authors a lengthy discourse, and Judge Korman (sitting by designation) authors a dissent.

Here's a brief snippet from the debate between Judges VanDyke and Korman:

Judge VanDyke: "[O]ne wonders: Why would one champion charting a completely new and unsupported path of legal reasoning just to avoid the lawful removal of a convicted burglar? I agree with Judge Korman’s laudable paean to doing equal justice. But in our system of government that means respecting the laws passed by Congress, not bending them—including our nation’s immigration laws." (emphasis in original)

Judge Korman: "Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case."

Thursday, November 18, 2021

Blizzard Energy v. Shaefers (Cal. Ct. App. - Nov. 18, 2021)

Just a couple of quick thoughts about today's opinion from the Court of Appeal, which affirms the addition of a judgment debtor but remands to see if the wife is an innocent spouse who should't be added:

(1) I think the opinion should add the word "allegedly" before its discussion of the separation agreement stuff. The wrongdoing husband owned 50% of an LLC -- the one added as a judgment debtor -- and his wife owned the other 50%. The trial court found that the wife's interest in the LLC could be included in the debt (since it was community property), but the Court of Appeal wasn't so sure. The panel said that since the parties separated in 1996, and all the fraud happened thereafter -- and didn't actively involve the wife -- maybe she's an innocent spouse and in the interests of justice her interest in the LLC shouldn't be attached.

Maybe. But the Court of Appeal repeatedly refers to their separation agreement, the fact that they lived apart since then, and all this other stuff as an established fact. Maybe it is; I can't find the decision below. But the trial court allowed the wife's interest to be attached, so I'm not at all certain that the trial court made a factual finding on any of those factual points recited by the Court of Appeal. And there's certainly reason to suspect that, uh, maybe those facts are not true; in particular, the fact that the parties allegedly separated in 1996, yet continued to own a boatload of companies together, didn't actually file for divorce until 2019 -- after the fraud judgment was entered and collection efforts began -- etc. etc.

There's a problem sometimes when the appellate court makes a statement of fact that supports its decision and then remands, and then the party that originally lost below says: "Law of the case!  You can't dispute that fact any longer, since the Court of Appeal found it was true" even though what the Court of Appeal really meant so say was that one party said it was true and it might well be true.  So you gotta be careful about that.

And maybe the opinion is here, and maybe it's not.  Just be careful.

(2) Justice Yegan's opinion makes a joke in the first paragraph.  Or a funny reference or whatever.  He says: "Blizzard Energy, Inc. [] invested in a tire pyrolysis project in Kansas. A Kansas jury returned a $3.825 million fraud judgment in favor of respondent and against appellant Bernd Schaefers (Schaefers). We are not in Kansas anymore. The fraud judgment was entered in California. The instant appeal flows from the California trial court’s decision to add a judgment debtor pursuant to the “outside reverse veil piercing” doctrine."

Thank you, Dorothy.  I admittedly smiled.  But I was also thinking that the Kansas courts themselves gotta be really tired of that one.  (According to Westlaw, that line's in twenty different opinions, and 70-plus law review articles and the like.)

(3) I made a quick search to find out more about the underlying fraudster, Bernd Shaeffers. Among other things, he was apparently a producer on the the 1984 film version of The NeverEnding Story -- or at least the names, which aren't totally common, are the same; I'm not actually vouching for whether they're the same person or not. Regardless, the reference to that movie reminded me of my favorite lawyer joke from The Simpsons.  (Homer wants to file a false advertising suit against an all-you-can-eat seafood place that eventually kicked him out for eating too much, and here's what his classic boob of a lawyer says.) Classic.

Tuesday, November 16, 2021

Argonaut Ins. Co. v. St. Francis Medical Center (9th Cir. - Nov. 16, 2021)

Here's a Ninth Circuit opinion that only the hard core civil procedure geeks will enjoy:  Whether the filing of a conditional counterclaim in response to a federal declaratory relief action obviates the district court's common law discretion to decline to exercise jurisdiction over such claims.

Exciting, eh?

Okay, but you know what is exciting about the thing?  The attorney for the appellant is from a firm in Minneapolis; not something you see in the Ninth Circuit every day.  And the underlying litigation, as well as the oral argument in the Ninth Circuit, was in . . . Hawaii.

Going from snowy Minnesota in February 2021 for a Ninth Circuit oral argument in Hawaii.  That does not suck.

Even if, as here, you lose.

Monday, November 15, 2021

Noble v. Superior Court (Cal. Ct. App. - Nov. 10, 2021)

The (successful) attorney for the real party in interest in this opinion is Skye Emery. That's a classic millennial name: Skye.  I wondered how many lawyers in California shared that first name.

The answer:  Nine.

Not surprisingly, almost all of them joined the bar within the past decade (i.e., after 2010); indeed, all but two.  Apparently the name "Skye" became popular after a character named "Skye Chandler" was added to various popular soap operas in 1987.  If you're born -- or conceived -- around or after 1987 or 1988, you typically graduate law school and pass the bar post-2010.  Makes sense.

The earliest California "Skye" attorney -- Skye Gibson -- joined the bar in 1998 and is now inactive and lives in Jamaica Plain, Massachusetts.  The other pre-2010 "Skye" involves a very sad story:  that of Skye Donald, who joined the California bar in 2004, started teaching legal writing at UCLA Law in 2009, was diagnosed with a brain tumor the next year, and succumbed to cancer in 2006, at the age of 43.

I'm sure we'll see more California attorneys with the first name of "Skye" at some point, though the most recent admittee was five years ago, in 2016.  I guess there was a big blip of popularity there once the soap opera character was added.  (Though, interestingly, the name appears to have stayed popular thereafter, but not for future attorneys.  I know there's a small sample size here, and we're only talking about a single name, but I wonder if parents who give their baby -- or at least daughter -- a newly-popular first name are more likely to end up having that child become an attorney than parents who give that same first name to babies who are born when that name is still relatively novel but a little well-worn.  Maybe there's a slight demographic, or educational, or parent-raising difference between the two groups?  An area just waiting for extensive empirical research, I'd say.)

Finally, yeah, yeah, there are (relatively) plenty "Skyler" and "Skylar" attorneys -- and even a couple of "Sky" ones -- but those don't count.  (Plus, even among those names, the earliest member of the bar was in 1998).  We're only talking "Skye" today.

Friday, November 12, 2021

George v. eBay (Cal. Ct. App. - Nov. 12, 2021)

I get it, I get it, I get it:  the Court of Appeal is sick and tired of this long-running and oft-appealed serial litigation, and thinks that eBay should win.  Moreover, there's a lot to that:  the plaintiff does indeed seem to be mostly complaining merely about the nature of the contract to which it agreed.

Mind you, there's a lot for buyers to complain about there; e.g., the fact that eBay pretty much always refunds purchases if the buyer is unhappy for any reason, which very much helps fraudulent buyers and hurts the sellers.  But that's largely a reason just to not sell on eBay, which is one's choice.  There are other platforms and other ways to sell.  The Court of Appeal, understandably, doesn't think that satisfies the legal standards for unconscionability.  Moreover, it's tired of seeing this same litigation on behalf of various different eBay buyers again and again.

The thing is this, though:  in the process of getting rid of what you think's a meritless lawsuit, you've got to be extra careful not to make bad law.  Particularly on appeal.

My thought in this regard relates to how the panel gets rid of a couple of different causes of action -- a tiny fraction, mind you, of the twenty-plus causes of action that plaintiff pleads.  Here's what Justice Richman says about those claims:

"The 12th, 13th, and 14th causes of action are styled respectively “Breach of Contract for Hiding Plaintiffs’ Listings,” “Intentional Interference With Prospective Economic Advantage re Hiding of Listings,” and “Deceptive Business Practices in Violation of Business and Professions Code section 17200.” As indicated, all are based on the fundamental premise that eBay hides listings, “secretly,” “completely,” and on a “regularly recurring basis.” As appellants’ brief puts it at one point, eBay allegedly makes certain “listings completely invisible and not capable of being seen by prospective buyers.” . . . 

To begin with, at no place do appellants identify any listing on eBay that was made “completely invisible” or “completely hidden.” Their brief does make the conclusory assertions that “all” of their listings were hidden “for a substantial period of time,” and that they “had no chance of selling their items” through the eBay website. But while the SAC alleges “many” listings were hidden, it lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred. Instead, the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219–1220.) Again, Judge Hernandez’s holding is spot on: “the ‘hidden listing’ allegations remain deficient . . . [w]ithout more specific factual allegations eBay cannot possibly determine whether any listings were actually not displayed (i.e., were ‘hidden’) or if so, why.”

Not only that, facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.” Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”

On those bases, the Court of Appeal dismisses, inter alia, the claim for breach of contract.

Let's unpack the various different reasons the Court of Appeal gives for this dismissal.

First, the panel says that the complaint alternatively says that "many" of the listings were hidden, but elsewhere says that "all" of their listings were hidden "for a substantial period of time."  Well, okay, that might be a little unclear, but those claims aren't totally contradictory; I presume what they mean is that sometimes, all of their listings were hidden, and that sometimes, only lots of them were hidden.  I could easily see that being a breach of contract if true.  Plus, last I checked, plaintiffs were permitted to plead in the alternative anyway.

Then Justice Richman says that there's a lack of detail, and that seems to be one of his bigger points:  the complaint "lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred."  Okay, maybe that's a reason to order a more definite statement, but that's not the basis for dismissing a complaint with prejudice. Plus, since when am I required in a complaint to list every date and item with particularity?  If I say in a complaint:  "Defendant repeatedly punched me in the face," that states a claim:  I'm not required to say how many times, or on what days, or with what instrument, or on what part of my face.  We're pretty much all about notice pleading here in the United States -- unlike those stinking English we kicked out back in the eighteenth century -- and rely on discovery to flesh out those details, not the pleadings.  Defendant can deny the allegation, or deny it for lack of information and belief, and we move on.  That on "omitted details" in this regard is fairly clear; or at least it was before this opinion, which sort of mucks it up in the service of the purportedly good cause of getting this particular case kicked.

Then the Court of Appeal says that claim is deficient because "the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim."  That's even an even more severe (and worse) pleading requirement than the Supreme Court created in Tombley and Iqbal -- and that the California courts have (tellingly) rejected.  You don't at the pleading stage come up with defenses for the other side sua sponte and kick the complaint on that basis.  If the complaint says "Defendant did X and it harmed my business," then that's a factual claim, and you accept it for purposes of a demurrer.  Plus, it's WAY plausible that if you in fact hide someone's listings, their sales will go down.  Indeed:  Duh!  Of course they will.  If there's an alternative explanation, and eBay can prove that hiding the listings actually made sales go up, or that there's a different explanation, great, they can establish that in an MSJ or at trial.  We don't bounce complaints on the pleadings simply because a judge thinks that the damage allegations of the plaintiff are perhaps overstated or come from an alternative source.

Then there's the fourth basis for dismissal:  that the "facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.”  That's a good example of being perhaps way too one-sided.  The complaint says that some listings were hidden for a while.  Maybe the listings here were gone for only a couple days, but if that's true, and if the contract requires them to be always visible, then that's a breach -- and the fact that the hidden listings were visible several days later doesn't mean that plaintiff is wrong or has contradicted himself or that something like judicial estoppel or whatever the Court of Appeal thinks it's relying on here permits the dismissal of the complaint.  No way.

Which leaves only the final sentence: "Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”  Okay.  Maybe that's a defense, right?  But surely we need more than just this hint, no?  Let's hear about the contract.  Does it really allow eBay to totally hide the listings?  If so, great, kick the thing.  But we'd need to know the actual terms of the contract -- not merely a five-word snippet from a brief -- analyze how they interact with the other contractual terms, evaluate whether totally removing listings is actually a breach (does it merely "diminish visibility" or do something more serious?), etc.

I'm not saying that plaintiff's got a great breach of contract claim.  Maybe it does, maybe it doesn't.  But to figure it out, I'd definitely need more than what I have here.  More importantly, I definitely don't want litigants or trial courts citing or relying on this case for the propositions for which it facially seems to stand; e.g., that your complaint gets dismissed if you don't provide dates or itemizations, that you get bounced if your complaint doesn't affirmatively negate any possible alternative explanations for how you were damaged, etc.  That'd be much worse systemically then anything this tiny little case will ever do to anyone -- particularly if we can get it bounced on the actual merits because it's not a breach since the eBay contract allows this stuff.  (Personally, if eBay did, in fact, totally hide someone's listings for absolutely zero reason, I can in fact see that as possibly being a breach -- though I suspect that's not what in fact happened, and that if listings were indeed hidden, it was probably for a reason spelled out in eBay's contract.  But, again, that's a matter for discovery or the merits, not the pleadings.)

As they say, bad cases sometimes make bad law.

Especially if you're not careful.


Thursday, November 11, 2021

Haytasingh v. City of San Diego (Cal. Ct. App. - Nov. 11, 2021)

The Court of Appeal's opinion in this case -- from lovely San Diego, and involving our lovely beaches and lovely surf -- came out back in July.  Today, the California Supreme Court denies review, but a majority of the justices (four) author a statement concerning the denial of review to urge the Legislature to look at the underlying statute and potentially change it.

That's super rare.  It's totally consistent with the Court of Appeal's opinion, in which the justices also told the Legislature that it might well want to take a look.  So I suspect it'll have a real impact.  (And should.)

But it's definitely something you don't see every day.

(Just like, I'll add, you definitely don't see a justice on the Court of Appeal quote a line from Star Trek's Spock in the opinion, which Justice Dato does in footnote 9 of his concurring opinion.)

Tuesday, November 09, 2021

Kremerman v. White (Cal. Ct. App. - Nov. 9, 2021)

Justice Stratton gets it spot on here.  No way the default judgment should have been entered.  No way.  There simply wasn't proper service.

It's not often you see a landlord-tenant dispute in the Court of Appeal.  But then again, this isn't your usual rental.  When I was reading the facts, I thought that I was confused, since it talked about a $16,000 yearly rent and a $25,000 security deposit.  Why would anyone pay a $25,000 deposit for a rental that only costs roughly $1,500 a month?

Oh, my bad.  It's a year-long lease, but it's $16,000 a month.  Got it.  This is not your ho-hum rental.  Even in Studio City.

The other thing that popped into my head was a line in the opinion from the defendant about why she was not at home during one of the various service attempts: "She stated she was out of town during the process server’s third stake-out on May 14, 2019, as she was in New York City to appear on the Wendy Williams show."  Oh.  The Wendy Williams show, eh?  Defendant must be famous (in addition to wealthy).

So I go back and look at the caption.  Her name is "Angela White".  Never heard of her.

So I hit up Mr. Google.  Which -- let just warn you -- has a very NSFW website as its first result.

What I should have done was simply read all the footnotes in the case first.  Justice Stratton explains in one of them:  "The parties interchangeably refer to appellant as Angela White or Blac Chyna, her professional name. We refer to appellant by her legal last name, White."

Oh.  Blac ChynaHer I've heard about. The whole kid-and-crazy-relationship-with-Rob-Kardashian thing.  Plus the modeling and . . . other stuff.

Anyway, Ms. White wins.  As she should.

Plus, to be honest, the landlord sounds like a . . . not good person.  His name is Michael Kremerman.  He rents the place to Ms. White, she re-ups the lease, and then she says she wants to leave early because she's bought a house, and he says, fine, though you'll still owe four months of rent if I'm not able to find someone to rent the place.  (The agent's actual words in the email were:  “The owner is happy to let [White] out of the contract, but as you may know, she is obligated to pay rent through the term of the lease, or until the Landlord finds new tenants that are willing to pay the same amount that she’s currently paying.”).  Cool, that's the law.

Then Ms. White moves out, and the landlord charges Ms. White four months of rent, saying that he was unable to lease the place.  (Then he takes her default, and garnishes her bank account.)

But check out what Ms. White's attorney subsequently finds (and presents to the court):

"White included as an exhibit the Zillow history of the Studio City property, which showed that on December 6, 2018, Kremerman listed the property for sale for $4.95 million, and then on December 7, 2018, he listed it for rent for $22,500 per month, “over $6,000 per month more than [White] had paid for rent.” On December 17, 2018, the rental listing was removed. On January 9, 2019, the property was sold; escrow closed on March 5, 2019. White argued “[h]ad [her] former landlord instead listed the [property] for rent . . . for $16,480, he would have been able to find a new tenant very quickly.” She also contended Kremerman improperly sought future unpaid rent for the month of March 2019 when Kremerman “no longer even owned the leased premises” as of March 5, 2019 when escrow closed."

When I hear that, I'm begging to find a way to reverse the default.  Which is the right result anyway.

Because, IMHO, the landlord is not un-sleazy.

Monday, November 08, 2021

People v. Revels (Cal. Ct. App. - Nov. 8, 2021)

I've seen (or read about) a lot of weird things happening in court; clients assaulting their lawyers, lawyers going crazy in front of the judge, witnesses freaking out, etc.

But I've never heard of (1) a juror looking like she's fallen asleep (okay, that one happens a lot, but wait for it . . .), (2) the trial judge calling the juror's name four times, still with no response, (3) a doctor who's an expert witness on the stand at the time going over to the juror and checking her out, and then (4) after examining the juror, declaring: "She doesn't have a pulse."


Given the various admonitions and other curative efforts here, the Court of Appeal holds that there was no prejudice in not ordering a mistrial.

Still:  Freaky, eh?

P.S. - The juror ended up just fine, thankfully.

Thursday, November 04, 2021

South Coast AQMD v. City of Los Angeles (Cal. Ct. App. - Nov. 4, 2021)

Here's what I was about to write yesterday about this opinion before I ran out of time and had to teach class (and then meet with students afterwards during office hours):

"Here's the first paragraph of this opinion.  Can you tell who wrote it?

'A case within a case can arise when a legal malpractice suit accuses lawyers of poor work. The main case is the malpractice suit: were the defendant lawyers’ performances deficient? The case within the case is whether the lawyers’ performances mattered. If the underlying suit on which the lawyers worked lacked merit, then their alleged malpractice could not have had an impact, because the client would have lost anyway. The issue is causation: whether possible malpractice could have caused harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.) This appeal follows that pattern.'"

I also had some tangential comments about the merits of the case, but whatever I ran out of time.  In any event, merits aside, I was surprised that I was able to figure out who wrote the opinion -- which I scrolled down to right after reading the first paragraph -- even before I looked at the caption to see what district it was from and even before I read anything else.

But then, today, I read this opinion, which had the following opening paragraph:

"A labor union moved to intervene in an environmental dispute about the Port of Los Angeles. The union is the International Longshore and Warehouse Union, Locals 13, 63, and 94 (the Union). The trial court denied the motion because concerns about expanding the case’s scope outweighed the Union’s interest. We will introduce the many actors and events in this multipolar environmental dispute by using the allegations of the petition filed by South Coast Air Quality Management District (the Air District). Then we explain why denying permissive intervention to the Union was proper. Statutory references are to the Code of Civil Procedure."

At which point I thought:  "Hmmm.  I'm pretty sure I know who wrote this one as well.  Same person as yesterday, right?"

And then, when I saw the next paragraph, I was certain of it:

"The Port of Los Angeles is the busiest seaport in the Western Hemisphere. It is critical for U.S. trade with Asia, and there is a lot of trade with Asia."

I honestly can't put a figure on precise why this jurist's writing style is so unique.  Sure, in the last of those paragraphs, there's the whole "short, pithy statements of obvious fact that are kind of funny" thing going on, and that's a dead giveaway.  But those first paragraphs don't have much of that, yet, still, of the 100+ justices on the Court of Appeal, you can pretty reliably figure out which one is writing stuff like that even from a single paragraph.  (Or at least you can after a while, if and when you read every single published opinion over the years.)

Anyway, it's a unique writing style that's not mine, but that (mostly) works for me as a reader.

It's this jurist, by the way.  If you didn't already know.

Tuesday, November 02, 2021

Mitchell v. Las Robles Medical Center (Cal. Ct. App. - Nov. 2, 2021)

Appellant tries to overdose in 2017 by taking 60 Naproxen (Aleve) tablets.  She goes with her husband to the emergency room at 7:23 a.m. and has already vomited twice.  An ER doc takes her history, and a half hour or so later a nurse puts an IV in her arm.  Nearly two hours later, appellant walks to the toilet with her husband and collapses, injuring her face and knee in the fall.  She files suit over these injuries in 2019.

Justice Yegan is right that this lawsuit is barred by the one-year statute of limitations for medical negligence.  That's the underlying claim, so the statute applies.  The trial court got it right too.

That said, it's not exactly a great look for Las Robles Medical Center.  As far as I can tell from the opinion, they basically didn't do anything at all for the patient for over a couple of hours after she shows up after a suicide attempt.  As far as I can tell, no medications, only a cursory review by the doctor, etc.

I know that ERs are often backed up, but seriously?

At least the hospital wins the lawsuit.  Even though it's far from the best advertisement for its ER.

Monday, November 01, 2021

Chase v. Wizmann (Cal. Ct. App. - Nov. 1, 2021)

I might be a little biased about this one -- at least I'm up front about it -- because my house has both a pool (and hence a pool pump) as well as air conditioning (though, to be honest, we haven't used the AC in at least three years).  So when I first read the facts of this case, and saw that it was a lawsuit brought by someone in a tony Hollywood Hills residence against his neighbor for "private nuisance" claiming that the neighbor's AC pool pump were allegedly too loud, I thought:  "Get real, dude.  And a life." 

(Plaintiff and his wife compared the noise to "a 'jet engine' or 'airport runway,'" which, I mean, come on, yes, it's a little annoying, especially if the AC fan and/or pool pump is near your bedroom window, but if you really think that's like being on an airport runway -- well, you clearly haven't been on a lot of airport runways.  Sample tesimony:  "Sylvia Chase likewise declared it was 'unbearable and lasted for hours,' 'like someone was gunning a jet engine under our window.'")

Given that (admittedly unfair) predisposition, I was a little surprised that the trial court granted a preliminary injunction against running the stuff, and that it ultimately ordered the equipment moved to the other side of the defendant's house.  Similarly, I was a bit surprised that the Court of Appeal affirmed.  Not stunned -- standard of review, after all -- but a bit surprised.

But then I read that various experts on both sides measured the sound levels coming off the stuff and discovered the following:

"With two condensers, the filtration and spa pumps running, the waterfall running, and the spa heater running, Chase’s expert measured 57 decibels in the backyard and in the side yard, and 51 decibels at the patio door; Wizmann’s expert measured 57 decibels in the backyard and in the side yard. Both sides agreed that many of these decibel levels still exceeded the limits of 45 decibels at night and 55 decibels during the day allowed by LAMC section 112.02, subdivision (a)."  As well as that "Chase hired an acoustical expert who measured the equipment noise at 65 decibels on the afternoon of June 9, 2020. Chase also obtained a personal sound level meter to monitor noise levels and measured as high as 73.5 decibels during the day."

I will say:  57 decibels sounds like a lot.  Especially since the LA municipal code seems to limit noise during the day to 55 decibels, and during the night to 45 decibels.

But it turns out that conversations in a restaurant, or background music, or even an ordinary AC unit at 100 feet are 60 decibels loud.  Geeze.  Does that mean that no one in LA gets to run air conditioning at night -- or even during the day (since 60 is above 55)?  Seems crazy.

I get it; these neighbors hate each other, and are rich, so okay, they sue each other.  But I was surprised that the trial court and Court of Appeal were really giving this one a ton of credence.

Though I wonder if this part of the opinion had anything to do with the ultimate result:

"Since 2015, Wizmann has operated his property as a short-term rental. . . . In June 2018, the City of Los Angeles cited Wizmann’s property as a public nuisance due to repeated large, unruly parties by renters, illegal parking, burglary at the property, refuse in the street, and neighbor complaints of public urination, public intoxication, fistfights outside the property, and other illegal activity. The city found Wizmann in violation of multiple sections of the Municipal Code, including LAMC sections 41.57 (Loud and Raucous Noise Prohibited), 116.01 (Loud, Unnecessary, and Unusual Noise), and 112.01, subdivision (b) (amplified music in residential zone audible beyond 150 feet)."

Is this legally relevant to whether a regular old AC unit and pool pump are really private nuisances?  Not at all.  Does it perhaps nonetheless affect the way a judge might look at the case?  It might just.

Oh, and I was looked to see if I could find out anything more about the defendant online to explain just why this dispute received the treatment that it did.  After doing so, I found the following line in the LA Times -- to be clear, I'm not saying it's the same "Benjamin Wizmann" as the defendant, 'cause I have no independent knowledge of anything; all I know is that the names and spelled the same and that they both seem to have residences in the Hollywood Hills.  But here's the report:

"Benjamin Wizmann, 41, was arrested at his Hollywood Hills home last week on suspicion of importing almost half a million ecstasy tablets."

Well then.  That's probably some additional color as well.  (And, again, I'm not saying it's the same "Benjamin Wizmann from Hollywood Hills" in both cases -- though, if it was, that might explain the following only-somewhat-cagey line from the Plaintiff's answering brief in the Court of Appeal:  

"Wizmann is a convicted felony drug dealer who regularly flaunts the law.  [Cites]

Anyway, here's what I know:  Even an ordinary air conditioner and pool pump can be too loud. I knew they could be too loud when they were damaged or worn or whatever.  Apparently, even when they're used as intended, your neighbor can potentially sue you and win.

Good to know.

Friday, October 29, 2021

Dept. of ABC v. IBOPE Elks of the World (Cal. Ct. App. - Oct. 29, 2021)

Wait:  You mean to tell me that the San Bernardino Elks Lodge sells weed at the Lodge?

Apparently so.

This ain't your father's Elks lodge.

Thursday, October 28, 2021

Harris v. County of Orange (9th Cir. - Oct. 28, 2021)

Want to see a case that took forever to get resolved?

Here you go.

The current lawsuit was filed in 2009 -- a dozen years ago -- and even that suit was a follow-on action to a lawsuit filed in 2007.  In essence, retired Orange County employees claim that they had a vested right to retirement contributions by the County.  The County won the original 2007 suit on summary judgment, the appeal went to the Ninth Circuit and, after oral argument, the panel certified the  underling state law issue to the California Supreme Court, which then answered the question.  During this process, the present suit was filed.

Thus began its own tortured procedural history.  In 2011, the district court granted the County judgment on the pleadings.  Another trip to the Ninth Circuit.  Which reversed in 2012.  Back in the district court, there were a couple of amended complaints filed, and more motions to dismiss, which the district court (again) grants.  Back to the Ninth Circuit again.  Another reversal.  Back to the district court.

Then, on remand, there's discovery, and finally a motion for summary judgment filed by the County.  Which the district court grants.  Yet another appeal to the Ninth Circuit.

Which affirms, albeit in a split opinion.

That ends the case.  At least for now.

Maybe they'll be an en banc call.  Maybe there will be a petition for certiorari.

But, most likely, after a dozen-plus years, the litigation is finally over.

All but the shouting, anyway.

Tuesday, October 26, 2021

Uribe v. Crown Building Maint. (Cal. Ct. App. - Oct. 26, 2021)

I like the crafty litigation tactic employed by counsel for the defendant in this case.  Smart.

But I also like that the Court of Appeal doesn't let it work.  Even smarter.

Plaintiff files a private attorney general (PAGA) action that says that his employer failed to reimburse him for required uniforms and footwear he needed on the job.  The parties mediate the dispute, and propose to settle it.

But defendant says:  "Hold on.  In a totally different suit, we're facing a class action that claims that we didn't reimburse our employees for their required cell phone use.  We'll agree to settle your case -- which (as you'll recall) is about something totally different (uniforms and shoes) -- only if you agree to amend your complaint to include the whole cell phone thing, and then we'll pay you your money."

Plaintiff, not surprisingly, is fine with that; he (and his lawyer) just want to get paid.  So they amend the thing, settle it, and move for approval, which the trial court grants.  Over the (totally anticipated) objection of the plaintiff (and his lawyers) in the other case, which just got settled around.

Nice job by defendant.  Get something for (basically) nothing.

But the Court of Appeal reverses.  Justice Goethals holds that since the plaintiff didn't originally assert a cell phone claim in his original PAGA notice, he doesn't have standing to settle the dispute.  So the whole scheme falls apart.

You can settle the case you brought, but not someone else's case.  At least in a PAGA dispute.

Nice try, though.

Thursday, October 21, 2021

Doe v. Damron (Cal. Ct. App. - Oct. 21, 2021)

A married couple lives in Georgia but travels to California on vacation; while in California, the husband (allegedly) viciously assaults his wife.  Can the wife sue in California for this tort?

Of course she can.  The Court of Appeal reverses the trial court's contrary decision below.

This is a pretty simple issue; indeed, your basic first-year law student would get this one right.  I will say that Justice Burns' opinion could perhaps have been a bit clearer than it is.  The fight here is not about minimum contacts (which everyone pretty much admits exists), but rather the "fairness" factors.  Justice Burns correctly notes that these factors need to be "super" unfair (e.g., a "compelling" case) for there to not be personal jurisdiction here, and, yep, they're very much not.  Hence the result, which is spot on.

But it bear mention that these are factors, which you weigh against each other pro and con.  Today's Court of Appeal opinion instead reads like the various components are separate arguments or requirements or the like, which makes the resolution a bit more confusing than need be.

They're factors.  Maybe, at most, one or two of 'em lean slightly against the exercise of personal jurisdiction by California.  But not by a lot, and in any event, the others don't.  Hence there's not a "compelling case" that jurisdiction here is unfair.

That's all one needs to say.

Wednesday, October 20, 2021

Lara v. Menchini (App. Div. Sup. Ct. - Oct. 20, 2021)

One of the cute things about first-year law students -- and, trust me, it's indeed cute -- are the tiny little verbiage mistakes they make.  For example, they often mispronouce words that lawyers easily know how to pronouce; which totally isn't the student's fault, of course, since it's probably the first time they've ever seen the word, which is why it's "cute" when a first-year student does it but horribly embarrassing when, say, a 30-year attorney does it.

It's also cute -- and, again, this is totally common -- when they use words in an improper context, again with no preexisting reason for the student to necessarily know the "right" context.  To take what is perhaps the most common example (in my experience):  first-semester law students in my Civil Procedure class will sometimes say that the jury found the defendant in a civil case "guilty" and awarded damages, at which point I gently remind them that "guilty" is a criminal law concept and that in the civil context we don't use that word, and generally say instead that someone's "liable" or not liable.

So I get that I have to sometimes say that to first year law students.  But, until today, I didn't think I'd be in a position to remind the Appellate Division of that fact.

Yet here we are.

Judge Fleming makes this nomenclature error (IMHO) not just once, but twice.  The first time is in the very first sentence of the opinion, which reads:  "After a bench trial, the trial court found appellants guilty of unlawful detainer."  Yeah, that should probably read "liable" rather than "guilty."  Maybe it's a little bit confusing because of the whole "unlawful" part of "unlawful detainer," but still, it's a civil case, not a criminal one, so we don't find people "guilty" or not guilty.  Ditto for the second time, later in the opinion, in which he says:  "A tenant of real property is guilty of unlawful detainer. . . ." and then lists the elements.

It's a style thing, of course, so to each their own.  If you want to use "guilty" in a civil case, be my guest.  And if your background is in criminal law, I get it:  that's the term with which you're probably the most familiar.

But, for me, nah.  Delete the whole "guilty" verbiage in civil cases.

POSTSCRIPT - Several readers with far more knowledge than me in landlord-tenant law wrote to say that practitioners in the area -- and the underlying statutory scheme itself -- expressly use the term "guilt" in the unlawful detainer context; for example, in CCP 1161.  There seems like a fairly broad holdover in this arena from the old feudal days; e.g., we still call 'em "landlords".  Good to know; you learn something every day!  Personally, I still might move on from this verbiage and adopt the more modern "liable" way of saying things, but as I said, to each their own.

Tuesday, October 19, 2021

In re Stevens (9th Cir. - Oct. 19, 2021)

I have only one question about this Ninth Circuit opinion from this morning.  My query doesn't have anything at all to do with the merits.

It's a totally hum-drum, super low level appeal.  Jasper Stevens and his wife, Brenda Stevens, have a house, but it gets foreclosed upon, at which point Mr. and Mrs. Stevens file a pro se lawsuit against the company that serviced their mortgage.  They also declare bankruptcy.

Nothing unusual there, right?  Happens all the time.

In their bankruptcy proceeding, Mr. and Mrs. Stevens don't list the state court litigation on the relevant bankruptcy schedules, but do list it elsewhere.  The trustee for the bankruptcy ultimately decides to settle the pro se lawsuit for $50,000, with the money going to the estate -- and hence to the creditors of Mr. and Mrs. Stevens.  (I'm getting the $50,000 figure, by the way, from the briefs; it isn't mentioned in the actual opinion.)

Mr. and Mrs. Stevens appeal -- to the Bankruptcy Appellate Panel, and then to the Ninth Circuit -- claiming that the lawsuit (and hence money) belongs to them, not the estate, because the trustee had "abandoned" this property because he knew about it and it was listed on other forms, even though the litigation wasn't listed on the proper schedule.  Both the BAP and the Ninth Circuit disagree, and affirm the bankruptcy court's decision.

So a $50,000 dispute, easily and simply affirmed.  Nothing crazy there.

Moreover, the dispute is simply about who owns a pro se complaint that's almost certainly going nowhere and that, even if it were worth anything, only requests six figures dripping wet.  This is not a high-stakes litigation.  Sure, Mr. and Mrs. Stevens think it's worth it; it's their bankruptcy, and they feel like spending the time.  But that's fairly idiosyncratic.  In the scheme of things, it's not a big deal.  Nor is the underlying legal issue either complicated or, quite frankly, especially important.  Particularly in the context of a $50,000 dispute.

So here's my only question:

Why in the world is the chair of Gibson Dunn's appellate practice group (unsuccessfully) representing the Stevens?

It's not a critical pro bono case.  It's not an important litigation.  It's not a high-value dispute worth the underlying legal fees.  And Mr. and Mrs. Stevens appear to be neither rich nor influential; by all I can tell, they're just another bankrupt homeowner in Temecula who lost their house and who've filed a pro se complaint against their mortgage company.  Nothing unusual at all.

To be clear:  I'm all for big firms representing the little guy, and doing pro bono work -- if that's what this is.  But, seriously, there aren't more important cases than this one?  Or bigger fish to fry?

What gives?

Seriously:  I would love to live in a world in which everyone had such high-quality, sophisticated legal representation -- for free, no less -- that the only pro bono or other pickings left for great lawyers were pro se bankruptcy mortgage litigations like this one.  But I'm pretty darn sure that's not where the actual world's at these days.  And no way the underlying case merits actually paying for such high-priced legal talent.

So I have no idea what these lawyers are doing on this case.  Seriously.

P.S. - Gibson Dunn's opening brief in this appeal begins with a bold, extremely self-confident statement:  "This case involves one of the clearest instances of abandonment on an asset by a bankruptcy trustee that this Court will ever see."

Apparently not.

Monday, October 18, 2021

People v. Smith (Cal. Ct. App. - Oct. 14, 2021)

Sometimes you read opinions in the Court of Appeal and just think:  "Man, I'm so, so glad that's not me."  Sure, we've all got problems.  Maybe your job's not all that fun.  Maybe it'd be more awesome if your kids listened to you a bit more on occasion.  Whatever.

But at least this isn't your life, right?

Anne Smith has a child, Linde.  Linde has a problem with, inter alia, depression.  So even though Linde is an adult, at some point, she moves back in with her mother.  Like any parent would, Anne gets concerned when she realizes that Linde is sleeping like 18 hours a day.  That's not right.  Worried, Anne calls Linde's therapist.  Anne also mentions that Linde seems interested in hoarding, especially as regards clothes.

In short, Anne's worried about her child.  Totally appropriate, totally normal.

Here's what happens next.  (To be clear:  Anne is the mother, and "Smith" is the daughter, Linde):

"The next afternoon, Smith called 9-1-1 and told the operator that she had killed her mother. Smith told the operator, “We had a terrible fight, and I killed her with a hammer.” After Smith told the operator that the killing had taken place the prior day, the operator asked Smith why she had waited so long to call 9-1-1. Smith responded, “I just freaked out, and I was just trying to, I don’t know, I was trying to sleep and pretend it didn’t happen.” When asked by the operator what the argument was about, Smith said that her mother was “gonna give all my clothes away.” . . .

When police arrived, they found Anne’s body in the living room. There was a hammer close to her body. Portions of Anne’s skull were on the ground, eight to ten feet from her body, and her brain matter was exposed in the areas where the skull was missing. Anne suffered eight lacerations in the area above her left ear and behind her forehead, as well as extensive skull fractures and injuries to the brain. . . . In addition to fatal head injuries, Anne had a number of defensive injuries consisting of lacerations and contusions on both forearms and on one of her hands, as well as fractures to her left wrist and forearm. Smith suffered no physical injuries. 

Shortly after her arrest, while in a patrol car, Smith told a detective at the scene, “I killed my mom.”"


Imagine going out this way; at the hands of your own daughter, and in a brutal fashion, no less.

Not good.

Wednesday, October 13, 2021

People v. Contreras (Cal. Ct. App. - Oct. 13, 2021)

I'm glad I wasn't on this jury.

The victim (J.) testified to a classic rape situation.  Here's the basic statement of facts from the opinion:

"On October 11, 2014, J., a woman, went to a wedding and drank alcohol. After the wedding, she asked her best friend, Kacie, to pick her up and go to a bar. Kacie instead invited J. to Kacie’s friend Brittany’s house in the Madera Ranchos. J. accepted the invitation and Kacie picked her up.

Brittany lived with Contreras, her fianc√©. When J. and Kacie arrived, they began taking shots of liquor with Brittany and Contreras. Contreras, Brittany, and Kacie had about four or five shots and J. had about two. About 30 to 45 minutes later, J. went to the bathroom and vomited, and Brittany and Kacie went into the bathroom to help her. Brittany went to her and Contreras’s bedroom and got a shirt and sweatpants for J. to change into, J. changed into the new clothes, and J. got into Brittany and Contreras’s bed.

Brittany, Kacie, and Contreras sat on the back patio and Brittany fell asleep. Contreras told Kacie something like, “I’m going to get that bitch out of my bed,” and went into the house. 

J. testified at trial that the next thing she remembered after falling asleep was someone getting into bed with her. She rolled away from the person onto her side, but then felt someone grab her hand and place it on an exposed penis. J. opened her eyes and saw it was Contreras. J. said “no” and tried pulling her hand away. Contreras placed his free hand on the front of J.’s neck. J. described the pressure on her throat as a light clasping that nevertheless felt “awful” and made her freeze from fear. With one hand on her throat, Contreras placed his other hand on her abdomen and pulled her body toward him. J. again said “no.” With his body on top of hers, Contreras inserted his penis into J.’s vagina. J. told him to stop. After several minutes of thrusting, Contreras removed his penis and forced J.’s head down toward his penis and inserted it into her mouth. J.  was crying as Contreras pushed her head toward his penis. She did not remember how long his penis was in her mouth, but said she was scared. Contreras took his penis out of her mouth when Kacie entered the room and yelled, “What the fuck?” Contreras did not ejaculate. . . .

J. eventually got out of the bed and ran out of the house wearing only the t-shirt Brittany had given her; she was not wearing pants. Kacie followed her into the street. J. was crying and saying, “He made me. He made me. I didn’t want to. He made me.” Kacie put J. in a bush and went in the house to get J.’s things and to call them a ride. J. was gone when Kacie returned. J. walked to her mother’s house two miles away. She told her mother what happened and her mother took her to the emergency room, and law enforcement was contacted."

Well, that seems fairly straightforward, no?  Totally rape.

Though there's one paragraph in the middle of there; the one with the ellipsis (in my quote).  Here's that one:

"Kacie testified that after Contreras left the patio and went inside, she remained on the patio waiting for Contreras to return until she started to hear both J. and Contreras moaning; the moaning sounded pleasurable. She went into the house, opened the bedroom door and yelled, “What the fuck are you guys doing?” Contreras said, “Fuck,” and went to the bathroom. J. hid under the covers and would not let them go as Kacie tried to pull them off of her."

The opinion doesn't say it, but you can fairly easily intuit what Mr. Contreras' defense was; that it was consensual (hence the "pleasurable" moaning by J.), that J. was then caught by the friend (Kacie) when she opened the door with J. and Contreras (who was her friend's fiance), and then J. immediately made up the nonconsent claim to avoid exposure for sleeping with the fiance.

At the same time, you can easily imagine J.'s response; no, that's not what happened, J. wasn't moaning, and the friend (Kacie) was either mistaken or covering up for her friend's fiance.

I wasn't there.  Nor was I on the jury.  So what do I know about who's right?

The jury ends up acquitting Contreras on the rape and forcible oral copulation charge.  But it convicts him on simple battery (a lesser included offense of rape).

Was this a compromise verdict?  Again, I wasn't there, I don't know.  What I do know is that it's a tough case, and it's one where there are very serious dangers of doing injustice.  Either way.  Including but not limited to the injustice of a mere compromise.

Anyway, Contreras gets put on probation.  Formal probation (supervised), but no prison.  Plus has to register as a sex offender.

That's what happens.  Right or wrong.