Genis v. Schainbaum (Cal. Ct. App. - July 22, 2021)

Sometimes an opinion is interesting not because of any doctrinal complexity, but simply because it describes a particular participant.

The lawsuit here involves one lawyer suing another lawyer for malpractice.  The lawyer who's the plaintiff is Darryl Genis, a well-known Santa Barbara DUI attorney.  The lawyer who's the defendant represented Mr. Genis in his federal criminal prosecution for willful tax evasion based upon the failure to file taxes for 2009, 2010 and 2011.  Mr. Genis alleged that his lawyer gave him bad advice in that prosecution, which resulted not only in Mr. Genis pleading guilty and going to prison for two years, but also being ordered to pay hundreds of thousands of dollars in restitution and penalties to the government.  So Mr. Genis sues.

The trial court dismissed the complaint, and the Court of Appeal affirms, both holding that since Mr. Genis isn't actually innocent of the offenses to which he pled guilty, he can't sue.  Those decisions are very much in line with existing law, so there's no real surprise there.

The opinion nonetheless made me wonder about Mr. Genis.  How does an attorney think he can get away with not filing taxes at all for years?  And since, according to the Court of Appeal, the central point of the plea deal with the feds was to enable Mr. Genis to keep his law license (because the deal made sure that the word "fraud" wasn't part of the record), I wondered if the plan worked.

So I looked up Mr. Genis' bar record, at which point I discovered this prior discipline as well as this one.  Both of those past events are, in my mind, relatively serious, but -- luckily for Mr. Genis -- didn't result in lengthy suspensions from the practice of law.

There was an additional active disciplinary complaint as well, which I assumed stemmed from the whole tax evasion thing (and indeed it did).  The records on that were incomplete, but I was able to find a newspaper article that helpfully described both Mr. Genis' current status as well as his prior plights.  (As well as contained a pretty darn good photograph of the guy.)  Apparently the State Bar judge has recommended that Mr. Genis be suspended for two years, even though the State Bar asked that he be disbarred.

Interesting stuff about an attorney who's (hopefully) unlike most other California lawyers.

Cahill Construction Co. v. Superior Court (Cal. Ct. App. - July 19, 2021)

I'm back from an at least partially-deserved vacation, and thought that this opinion was worth at least brief mention.  The Court of Appeal holds that the statute -- Section 2025.295 of the Code of Civil Procedure -- means what it says, and it's hard to argue with that conclusion.  CCP 2025.295 caps the amount of time the defendant(s) may depose a plaintiff if the plaintiff is suffering from (and suing for) mesothelioma and a licensed physician declares there's "substantial medical doubt of the survival of the [plaintiff] beyond six months.”   The cap is "seven hours of total testimony,” a trial court can grant up to an additional seven hours -- “for no more than 14 hours of total deposition" -- if more than 20 defendants appear at the deposition, the court determines that the additional time is warranted in the interest of fairness, and the additional time does not appear to endanger the plaintiff’s health.  The Legislature enacted that statute in 2019 in direct response to a prior Court of Appeal ruling that held that a deposition beyond 14 hours could be compelled in such circumstances, finding that this rule was being used to allow “marathon depositions” that were inflicting “undue emotional and physical harm on victims during their final days of life — even hastening death.”

Okay.  So that's the rule.  And the text of the rule is pretty darn clear.

Ordinarily, that'd also seem like just a fine rule.  Fourteen hours of deposition is a fairly long time.  Not infinite, to be sure.  You'd certainly like more if you were being sued for millions of dollars.  But a pretty decent amount of time regardless.  Especially for someone terminally ill with mesothelioma.

Now, here, there are not just 30 defendants.  There are over a hundred of them.  So you can see why the defendants might take some umbrage at being hard capped at 14 hours.  Each defendant understandably wants to examine the plaintiff at some length about his or her alleged exposure to the product of the particular defendant at issue.  Because, among other things, that's usually the most vulnerable part of the plaintiff's case.  Sure, s/he has mesothelioma, and it's almost certainly from exposure to asbestos.  But did it come from exposure to my asbestos product?  That's the core issue.

The Court of Appeal says that each defendant was able to depose the plaintiff within the 14-hour period about the individual products at issue "briefly."  I'm sure that's true.  But having done the math, even if the 100-plus defendants didn't depose the plaintiff about anything else (e.g., the common claims and defenses), each defendant would only have 8 minutes -- max -- to depose the plaintiff about exposure to defendant's particular product.

That ain't much.

It'd be different, of course, if the defendants were able to fully question the plaintiff at trial.  But we all know that's not likely to be the case, and that plaintiff probably won't be around at that point.  So the only testimony is going to come from the deposition.

So those eight minutes are pretty darn precious.

Still, the Court of Appeal says that the statute says what it says, and that the Legislature made the call.  Defendant argues that it's got a due process right to examine the plaintiff, but the Court of Appeal says there's not much of a constitutional right to discovery in the first place -- we could (if we wanted) have the parties go directly to trial -- so there's no constitutional bar to doing what the Legislature has done.

Okay.  You can see why the case comes out that way.

To me, though, one of the disturbing parts of this fact pattern is that the plaintiff's lawyer got to depose the plaintiff himself -- at that same deposition -- for over eight hours.  You've got a right, of course, to depose your own client, and if you think your client might well not be around for trial, that's probably a pretty good idea.  You'll want to introduce that testimony at trial.

There just seems something fundamentally wrong, however, about having a time-unlimited ability for a plaintiff to depose himself and yet imposing a hard 14-hour cap on the defendants.  I'm not sure that it's a due process problem (though maybe it is).  It just seems unfair and/or unfounded.  I get that we don't want dying victims harassed in a deposition forever during their final days.  But if the plaintiff can -- and wants -- to use his own deposition to advance his own claims for a lengthy period of time, it seems only fair that defendants obtain at least a "fair" amount of time in response.

And I'm not sure that 8 minutes a defendant counts as fair.

The statute says what is says, and to a substantial degree, the Legislature gets to make the call.  But I definitely wouldn't want to be a defendant in this procedural posture.  Particularly with millions of dollars on the line.

People v. Potter (Cal. Ct. App. - July 14, 2021)

This is certainly good police work, and at some level, I'm impressed with the talent of the officers here.  They suspected that the defendant had molested his five-year old daughter, and they interrogated him until he (essentially) confessed.  They first got him to admit that he had been molested himself as a child, used that fact to purportedly empathize with his situation, and used his purported love for his daughter and care for her welfare to get him to admit to improper touching (and write a note apologizing).  During all of this, the police made clear that the defendant was "free to leave" if he wanted, and thus didn't advise him of any of his Miranda rights -- which might have made him more suspicious of the officers' claims that they were simply looking out for his welfare and seeking to "understand" why he did what he did and ostensibly put it in the best possible light.

It was a masterful manipulation of someone's psychological state.  Resulting in a confession that likely seems truthful.  Well done.

On the other hand, I couldn't help feeling somewhat bad about the whole thing.  The only reason the guy here confessed was because he was actually torn up inside about what he'd done.  (As well as not at all sophisticated about what the police officers were doing to him.)  There's zero way a person who was truly and completely evil would have fallen for these tricks or confessed.  A person without remorse might well have gotten off entirely; by contrast, the defendant here goes to prison for 15 years to life.

We obviously want child molesters to be punished and incapacitated.  It just feels inequitable that tactics like this enable the worst of the worst to escape, yet convict those who are (at least in part) remorseful for what they've done.

I'll add one doctrinal point about the opinion.  Justice Hoch holds that the interrogation wasn't custodial because (in large part) the officers told defendant that he was free to leave if he wanted.  Now, that's not a bright-line rule, and there are other opinions that hold that interrogations remain custodial (and thus require Miranda warnings) even when officers said the exact same thing.  The facts of Torres -- rendered by the Court of Appeal a couple years ago -- are incredibly to those in the present case.  The Court of Appeal held there that Miranda warnings were required.  Justice Hoch says that the facts of the present case are distinguishable.  But, in truth, they're not.  Maybe Potter (the current opinion) is right, or maybe Torres (the prior opinion by Justice Nares) is right, but they're almost assuredly not both right.  Justice Hoch's attempt to distinguish Potter just doesn't work.  If it was custodial there, it's custodial here, and if it's not custodial here, it shouldn't have been custodial there.

Courts of Appeal are allowed to disagree with each other.  This is one of those cases where I thought the more forthright answer would be to simply admit that horizontal precedent went the other way but say it was wrongly decided, rather than attempt to distinguish the cases.

NLRB v. Nextar Broadcasting (9th Cir. - July 12, 2021)

I'm bereft of opinions from the California Court of Appeal today because either its website is down or my ISP won't let me access them (for some inexplicable reason).  But the Ninth Circuit is working away, and pumped out (inter alia) this opinion.

I was somewhat surprised that Nextar Broadcasting chose this fight.  It's about some tiny conditions of employment in a collective bargaining agreement that expired, and the NLRB said that the company could not impose them before discussing them with the union.  Seems reasonable.  The Ninth Circuit thought so as well.  There might be bigger fish to fry as opposed to litigating in the Court of Appeals.

I also noticed that in-house counsel for Nextar (from Texas) argued the case himself.  I guess that cuts down costs, at least.  Though not arguing -- and losing -- at all would have cut costs even more.

Anyway, if you are wondering whether there are local broadcast news stations still operating in Portland, Oregon, the answer from today's opinion is definitively:  Yes.

Posos-Sanchez v. Garland (9th Cir. - July 7, 2021)

It's well-known that death penalty cases take forever to progress through the system.  It's less well-known that immigration cases sometimes take (relatively) forever as well.

Like this one.

There's no doubt that the petitioner here, Angel Posos-Sanchez, is removable from the United States.  He's been removed before, after all.  The central issue is simply whether he's eligible for voluntary departure from the U.S. -- or whether immigration officials get to select the date he gets booted.

All of the decisions below uniformly concluded that Posos-Sanchez gets removed, and that he was stopped and released at the San Clemente checkpoint in September 1990 -- over thirty years ago -- doesn't mean he was "admitted" to the United States.  Posos-Sanchez is a citizen of Mexico, but has resided in the United States since 1980.

As today's opinion explains, "in either 2010 or 2011, Immigration and Customs Enforcement removed Posos to Mexico (the record does not explain how or why this removal came about)."  Then "Posos tried to reenter the United States at the San Ysidro Port of Entry on March 9, 2011. There, immigration officials stopped the vehicle bringing him into the country and found him hiding in the trunk of the car. Posos admitted to these officials that he lacked the necessary documentation to enter or remain in the United States. They therefore detained him and referred him to the Immigration Court for removal proceedings."  Posos-Sanchez was subsequently released on bond in May of 2011.

So his case has been going on now for over a decade.  And it's not like he's been bouncing around the various courts or anything; it's a straight shot.  He lost before the IJ, he lost before the BIA, he lost in the district court, and now it's 2021, and we're just now getting a Ninth Circuit opinion.  Which in turn remands the case back to the immigration judge "to make further findings and conclusions about his eligibility for voluntary departure."  So presumably another IJ-BIA-district court-Ninth Circuit round.

Maybe this time, in under a decade or so.

Khosravan v. Chevron (Cal. Ct. App. - July 6, 2021)

Don't send a CCP 998 settlement offer that requires the opposing party to indemnify you as part of the release (in the event anyone else sues you).  Requiring a release is fine, but requiring indemnification makes the 998 offer impossible to value -- because who knows if someone else is going to sue you, or what the defense costs will be of such an action -- and hence makes it unenforceable.

So holds the Court of Appeal today.

Inserting the indemnification provision was a particularly unwise move in the present case, in which the 998 offer was merely for a waiver of costs.  No way that offer was going to be accepted anyway, so inserting the indemnity clause didn't really have a point -- it only made the offer not work as a cost-shifting device.

So, in the future, leave that stuff out.  Fine for an "informal" settlement offer.  Not fine for a 998.

Metzger v. Bick (Cal. Ct. App. - July 1, 2021)

None of the idle rich come off looking good in this lawsuit.

Jeffrey Metzger is the uber-wealthy CEO of KB Homes, and he and his wife Sandra live in the super-exclusive gated community of Bel Air Crest.  Their neighbor is noted comedian Kathy Griffin and her boyfriend, Randy Bick.

These neighbors do not like each other.  At all.  Who's at fault for all of this mess, or what started the war between these two couples, is totally unclear.  But what is nonetheless clear is that despite having huge $15 million-plus properties, these individuals absolutely despise their next door neighbors.  And they have the resources to make the lives of their opposites as miserable as humanly possible.

Once Kathy Griffin and Randy Bick move in in 2016, they think that the Metzgers throw loud parties and use way too many expletives, so they repeatedly call the police and complain to the HOA board, but to no avail.  So the same day the HOA board finds that Ms. Griffin's and Mr. Bick's noise complaints were not substantiated, they decide to install a super-comprehensive "home security" system, which they readily admit "was installed to document the extent of the noise disturbances affecting their property."  It consists of several Nest surveillance cameras, with microphones, that were installed at various places and that were focused primarily on locations on their own property, but also very-much-not-coincidentally, also pointed at portions of the back yard of their neighbors -- and recorded the sounds coming from that property.  As the opinion mentions, "Ms. Griffin instructed her personal assistant to review the recordings daily for audio of [their neighbors]," and these audio files -- recounted in detail by Justice Grimes -- have saved titles like "Mezger Backyard Yelling V1 3.16.17.m4a".

Clearly, Ms. Griffin and Mr. Beck have a dual purpose in installing this stuff.  Sure, at some level, they want to protect themselves.  Because God knows that living in a super-exclusive gated community in Bel Air with neighborhood guards (oh, yeah, and the Beverly Hills Police) isn't enough.  But they also want to record whatever sounds come onto their property from their neighbors.  Yelling, obscenities, etc.  'Cause "[t]he HOA had told Mr. Bick he and Ms. Griffin needed to 'document' [their neighbors'] conduct to substantiate their claims" about excessive noise, and that's exactly what they were going to do.

But the Metzgers ain't poor, and ain't taking this lying down.  So they sue.  Claiming that Ms. Griffin and Mr. Bick were illegally invading their privacy by recording their conversations and videotaping stuff in their back yard as well as violating Penal Code section 632(a), which prohibits a person from "intentionally and without the consent of all parties to a confidential communication, us[ing] an electronic amplifying or recording device to eavesdrop upon or record the confidential communication" of another person.  Both sides get high-priced lawyers, and away they go.

The trial court dismisses the lawsuit, and the Court of Appeal affirms.  Justice Grimes reviews the relevant recordings in detail, and explains that most of 'em (1) barely show anything in the Metzgers' backyard at all (though, yeah, there are occasional things there), and (2) are often unintelligible, and simply record undifferentiated yelling and the like (but with occasional phrases and words discernable).  Given that context, the Court of Appeal holds, there's nothing illegal about what Ms. Griffin and Mr. Bick are doing.  Record away.

Lots of what Justice Grimes says seems right to me.  As the opinion describes it, in the relevant files, "[o]nly a small portion of the plaintiffs’ backyard could be seen in the videos, plaintiffs and their guests could barely be seen, if at all, and the content of their conversations could not be discerned."  That does not seem like a super-critical invasion of privacy to me.  And, yes, sometimes, you could hear what was said.  But as Justice Grimes notes, "[w]hat few words and phrases could be understood were clearly spoken at elevated volumes, which plaintiffs could not reasonably expect to remain private in an outdoor residential setting, with neighbors nearby."  Sounds right.  Even if, as is apparently the case, the Nest cameras and microphones can pick up and record conversations that might be more difficult for a human ear to discern.  If, as Justice Grimes says, the only things that you can really understand on the recordings are people yelling, well, then, that's sort of your own fault.  Maybe stop yelling, right?

So, on balance, the opinion seems right.

But there's one part of the thing that nonetheless struck me as a bit off.  It's a ruling on summary judgment, and Justice Grimes says:  "There was no evidence repositioning the cameras would adequately safeguard defendants’ security interests, or that those interests were pretext."  But that second part doesn't seem right at all.  From reading the opinion, I'm quite confident that the alleged security motivation for installing the cameras was pretext.  Particularly since the cameras (1) were only installed (after -- and on the same day -- the HOA board told Ms. Griffin to "document" the alleged excessive noise, (2) for the purpose, as defendants expressly admitted, "to document the extent of the noise disturbances affecting their property," and (3) Ms. Griffin told her assistant to review the audio files daily to find any sounds that came from their neighbors.  It's not just that there's a genuine issue of material fact about that:  I'm sure that's right.  Yes, I'm sure that Ms. Griffin and Mr. Bix wanted to protect themselves.  But's the ostensible reason for the cameras, and it indeed served that function.  But the real purpose was to record their neighbors.  We've got a word for that.  "Pretext."  That's what it was here.  When you do one thing that you're legally allowed to do -- install cameras and microphones to ensure safety -- when your principal motivation is to do a different thing (record your neighbors), that's "pretext".  Just like when an officer pulls you over ostensibly because you roll through a stop sign, or speed, or have a broken tail light, but the reason he's really pulling you over is because he thinks you might be transporting drugs, that's "pretext" too.  It might (or might not) be permissible.  But it's surely pretext.

I think the opinion really stands for the proposition that, pretext or not, it's okay to install security cameras on your property if there are legitimate security concerns and the invasion of your neighbors is as slight as it is here.  Period.  Pretext or no.  Subjective motivations are irrelevant.  That's the partially analogous rule on the "police stop" side, after all.  Same here.

So it's not that there's no pretext here, or that the case would be different if there were.  Not so.  It's that you're allowed to do these things.

Even if, quite frankly, it'd be a whole lot better if one of you simply moved (as Ms. Griffin and Mr. Bicks eventually did) or -- better yet -- simply learned to live with one's neighbors peacefully.

But if you've got money to burn and want to fight, okay.  I guess that's what you get to do.

Better than shooting at each other, at least.

Medina v. Superior Court (Cal. Ct. App. - June 29, 2021)

Kafka couldn't have written anything better than this conundrum from the Court of Appeal:

"Petitioner Jose Adan Medina was placed in custody in November 2016 on charges of second degree robbery and misdemeanor sexual battery. In June 2017, the respondent court found that Medina was mentally incompetent to stand trial and had a developmental disability under Penal Code section 1370.1 (undesignated code references are to the Penal Code).

Since the time Medina was adjudicated to be mentally incompetent, he has received neither treatment nor a trial. The regional center and the California Department of Developmental Services (DDS), which have the responsibility for providing services for people with developmental disabilities, disagreed with the court’s adjudication and concluded that Medina did not have a developmental disability. Although the incompetency order was legal and binding on the regional center and the DDS, they declined to offer Medina services or recommend placement.

A long standoff ensued. Medina did not receive the treatment to which he was legally entitled but, as he had been adjudicated incompetent, his case was not tried."

Sometimes governmental efforts to ensure liberty do not work.  To say the least.

Belen v. Ryan Seacrest Productions (Cal. Ct. App. - June 29, 2021)

Ryan Seacrest takes it on the chin in today's opinion by the Court of Appeal.

Not that he's found liable for anything.  But his production company loses its attempt to get a lawsuit against it dismissed on an anti-SLAPP motion.

The lesson to be learned is:  Make sure you get releases from anyone you put on television.

Particularly when, as here, the person you film is essentially naked.

Public Guardian v. K.P. (Cal. Supreme Court - June 28, 2021)

The week begins with another cogent, unanimous opinion from the California Supreme Court.  Actually, two of 'em -- this one too (a habeas case).

But I wanted to mention only the former, and even then, only briefly.  The holding is an unremarkable one: that when deciding whether someone's "gravely disabled" and hence can be involuntarily institutionalized, whether they refuse to take medication is simply a factor -- not a prerequisite -- to such a determination.  That seems entirely right.

The thing that struck me about the opinion, however, were the facts of this particular case.  You read a lot of Lanterman-Petris-Short Act (LPS) opinions in the Court of Appeal, and in nearly all of them, you walk away from the fact section by saying:  "Oh my goodness, this person is totally crazy, and definitely needs help."  The stuff they do is ordinarily beyond bizarre (and scary).

But in today's opinion, the "evidence" recited by the California Supreme Court for K.P. needing to be institutionalized -- for nine-plus years, no less -- is quite underwhelming.  And, sure, I realize that the case isn't about his particular facts (it's more about the underlying legal standard), but still, it was a little surprising that the opinion thought that all we needed to know about the evidence of K.P.'s disorder was what was mentioned.

Here's what Justice Corrigan says about K.P.:

"The Los Angeles County Superior Court established a conservatorship for 23-year-old K.P. in May 2008 and renewed it annually over the next nine years. In April 2018, the county’s public guardian (Public Guardian) filed another renewal petition, alleging K.P. remained gravely disabled. This time, K.P. demanded a jury trial.

A psychologist from K.P.’s residential facility testified that he suffered from schizophrenia, with auditory hallucinations and paranoid delusions. For example, on the morning of trial he asked to enter a witness protection program because he believed a fellow resident was planning to attack him. In another incident, K.P. chased and threatened someone he believed had intentionally hit him with a basketball. He could not be redirected and was hospitalized. K.P. also displayed “grossly disorganized behaviors,” lack of motivation, and difficulty speaking and socializing. The psychologist concluded K.P. lacked significant insight into his disorder. He minimized his symptoms and believed they were caused by medications. His mother had expressed the same belief. K.P. resisted taking his prescriptions or participating in therapy and other services. The psychologist concluded K.P. could not provide for his basic needs without medication and did not believe he would take them consistently or correctly without a conservator’s supervision. The day before trial, K.P. almost gave himself a double dose of one potentially toxic pharmaceutical. The psychologist believed K.P. needed round-the-clock supervision and lacked the initiative and insight necessary to obtain treatment himself. Although he had opportunities to do so, K.P. had never left the facility without his therapist or mother."

That stuff isn't really on the "totally crazy" side of the "crazy" to "incredibly sane" spectrum, is it?  The first thing the opinion mentions is that he wanted protection from a fellow detainee who he thought was planning to attack him.  But, like, maybe the detainee was planning to attack him, right?  The guy's in a mental institution, after all.  Maybe some crazy guy there was out to get him.  To paraphrase Joseph Heller, it's not paranoia if they're in fact after you.  Second, the Court says that in another "incident" K.P. chased and threatened someone who "he believed had intentionally hit him with a basketball."  But I've seen totally sane people do that tons of times on the basketball court.  Maybe the guy did throw a basketball at him on purpose.  That'd hack me off too.  The opinion just seems to assume that all these things were "hallucinations and paranoid delusions" -- without any evidence at all that they weren't real.

Then there's K.P.'s alleged "lack of motivation, and difficulty speaking and socializing."  Maybe it's just San Diego, but the number of perfectly sane people here whom I could accurately describe as less than motivated and/or subpar at conversation and socialization is fairly high.  Doesn't make 'em crazy.  And, yeah, K.P. didn't want to take medication -- like a ton of sane people (and need I compare K.P. in this regard to the millions of people who don't want to get vaccinated for COVID?) -- and almost took a double dose of medication accidentally once, but again, I think that can describe a ton of people, both young and old.

I'm not saying that K.P. doesn't need help.  Probably he does.  I just thought there'd be a lot more in the opinion about his particular problems taking care of himself.  Because, trust me, in most of these cases, the person really is gravely disabled.  So I was surprised that the facts the California Supreme Court recited as the background for why this particular person gets hospitalized for nine-plus years were so seemingly slim.

In re A.C. (Cal. Ct. App. - June 25, 2021)

I'm persuaded by Justice Ramirez's opinion this afternoon.

At the same time, I'm totally persuaded by Justice Menetrez's dissent.

Yet I readily concede that they can't both be right.

Justice Ramirez's analysis seems spot on.  The federal Indian Child Welfare Act (ICWA) requires that the court inquire into whether either parent has Native American ancestry before we terminate parental rights; it's motivated by a shameful history of wrongfully taking away children from Native American parents.  Here, the father appeals, saying that the court terminated his parental rights without finding out whether he had Indian ancestry.  As Justice Ramirez cogently explains:

"The issue arose because the mother plainly did have Indian ancestry — she was an enrolled member of a federally recognized Indian tribe; an older daughter had been removed from her custody and transferred to the jurisdiction of the tribe. Apparently no one thought it was worth asking whether the father, too, might have Indian ancestry. When the mother’s tribe surprised everyone by reporting that the child was not a member and not eligible for membership, the juvenile court found — without any further inquiry regarding the father — that ICWA did not apply."

Well, that clearly shouldn't have happened.  As everyone rightly concedes.

The only question that remains is:  What should we do at this point?

To which Justice Ramirez responds:  Nothing.  He says:  "San Bernardino County Children and Family Services (CFS) does not dispute that there was an erroneous failure to inquire. It contends only that the father has not shown that the error was prejudicial. We agree. The father has not claimed — in the juvenile court, in his opening brief, in his reply brief, or at oral argument — that he has any Indian ancestry. Because he has not managed to clear this rather low hurdle, there is no reason to suppose that, absent the error, the outcome would have been any different. And, more to the point, there is no reason to reverse and remand for a further inquiry, which would not only entail effort and expense, but would also delay permanency for A.C."

That sounds right to me.  Don't forget the factual backdrop:  It's a tiny little kid, and the allegations are that "the mother used methamphetamine, physically abused the child, failed to feed the child, and failed to obtain medical care for the child."  As for Dad, "[t]here was some initial uncertainty as to whether D.M. or one E.R. was the child’s father," but eventually mother says it's D.M., who's in prison, and even when he gets out, "the father [] failed to participate in his reunification services plan and had made only 'minimal' progress."

So we've got a tiny kid who's desperately in need of care, parents who are by no means the greatest, and a caring foster parent who wants to adopt the child.

With the only barrier being that everyone below we so focused on the mother than they forgot to ask the father about potential Indian ancestry.

But Justice Ramirez says:  So what?  When the appellate briefing doesn't even hint that the father might, in fact, have Indian ancestry, let's just cut to the chase.  We all know how this case is going to come out:  that Father doesn't have Indian ancestry, and the kid should be adopted, so let's do it.  The error was harmless since there's not even the tiniest reason to think that the father in fact has Indian ancestry such that the result below would even be the slightest bit different.  Get the kid to loving parents now.

Strong stuff.  Persuasive.

But Justice Menetrez's dissent is equally persuasive.

He says:  "Uh, sorry, but that's not the way things work.  Of course there's no evidence that Father has Indian ancestry.  Because no one ever asked him.  And, critically, this case is on appeal.  On appeal, we are generally limited to the record below.  You don't say:  'Oh, on appeal, if you want to win, you are required to introduce new evidence that you didn't introduce below -- here, the fact that Father in fact has Indian ancestry.'  That's not how it works.  So, doctrinally, it's simply flat wrong to affirm and the basis that the appellate briefs don't insist (or introduce evidence) on a particular factual point that we all admit is outside record.  Instead, you remand.  Period."

Plus, wholly apart from doctrine (and precedent), Justice Menetrez has a profoundly practical point to make as well:

"Rebecca R. and the majority opinion put parents’ appellate counsel in a strange and untenable position. Appellate attorneys ordinarily do not, need not, and are not paid to conduct any investigation of facts outside the record. (Cf. Josiah Z., supra, 36 Cal.4th at pp. 671-672 [minor’s appellate counsel may seek but need not be granted funds necessary to investigate facts outside the record].) But in a case like this one, Rebecca R. and the majority opinion require Father’s counsel to interview Father about his Native American ancestry and then, in defiance of Zeth S., provide the information to the Court of Appeal as a basis for reversal. And what if counsel is unable to interview Father in time? Parents in dependency cases are sometimes homeless or otherwise hard to find. If counsel cannot reach Father, must counsel interview paternal relatives? Moreover, a parent appealing from the termination of parental rights can assert ICWA error as to a nonappealing parent. (See, e.g., N.G., supra, 27 Cal.App.5th at pp. 477-478.) Must counsel for the appealing parent interview the nonappealing parent? Just how much of the trial court’s and CFS’s jobs does the majority opinion reassign to appellate counsel?"

That's totally right too.  Persuasive, even.  That's just simply not the way things work in the Court of Appeal.

So both opinions are, to me, pretty darn compelling.  Yet only one of them can be right.

Which one?

It's a toughie.  Rarely do I read majority and dissenting opinions that, IMHO, both make incredibly compelling arguments that equally resonate with me.

So where do I come out?  Where do you?

In the end, I decided that Justice Menetrez was right on the law.  That's not the way the Court of Appeal works.

But I also decided that I nonetheless agree with Justice Ramirez.

It's not the way the appellate courts normally work.  But, in the end, I decided that an exception in the present circumstances makes sense.

We've got two choices.  One option is to make it the trial court and CFS's responsibility to inquire -- which, of course, it totally is -- and to remand the case back down if they don't do their jobs.  That's normally the right way to go.

But, to be honest, in the scheme of things, it's a SUPER TINY BURDEN to tell the parent (here, the father) to provide at least a smidgeon of evidence on appeal that the error at all mattered.  That the guy has, in fact, some shred of Indian ancestry that matters.  If the guy can't even (truthfully) say that, then what's the point of remanding?  Just get the kid to loving and competent parents now.  No need to waste another year or two with a remand and (potentially) another appeal.

Now, Justice Menetrez has a response, of course.  He says (rightly) that that's not the way appeals work, but we're talking about little kids here, so I'm willing to make it the way appellate courts work in this particular (somewhat unusual) context.  He also says -- again, rightly -- that it puts appellate counsel in a difficult position, because now they (1) have to investigate actual facts that aren't part of the record below (rather than merely writing briefs in their office), and (2) might practically have a hard time doing so because some parents are homeless, can't be located, etc.  Again:  All true.

But that's in part a consequence of how we structure these types of appeal with appointed counsel.  It's worth remembering that the appellant in this case is the father.  He's the one filing the appeal, not his lawyer.  He's the one in charge.  So, yes, sometimes it's hard to find parents like this, perhaps even to ask them the most fundamental and simple of questions:  "Is there any reason whatsoever to think that you might in fact have any Indian ancestry?"

But if the lawyer can't find his client to ask such a simple -- and important - question, then that's a whole different problem, right?  That's a problem that arises with lawyer-driven appeals.  Once one remembers that it's the father who's prosecuting the appeal, it doesn't seem at all overly burdensome (to me, anyway) to say that you've got a very limited and easily satisfied obligation if you want to win on appeal:  (1) stay in at least basic contact with your lawyer, and (2) answer a totally simple question on the merits.  You don't have to introduce tons of evidence or anything.  But you gotta at least be able to say (truthfully, of course) that you think you might have Indian ancestry because of Reasons X and Y.  If you can't even say that, well, then, sorry, but there's no reason to keep your child in limbo.  A place that no one should want.  Time to end the dispute now and get the child to a loving, caring home -- like here, with an adoptive parent who's yearning to have the daughter in her life forever.

So that's how, to me, the balance plays out.  I'm motivated by what's practically at stake:  The actual and very real welfare of a child.  As well as the practical reality:  My sense is that, 99% of the time, these ICWA remands from the appellate courts are totally useless, and don't change the result in the slightest.  To be clear:  I'm fine with that if the parent(s) can say, on appeal, that maybe the result would be different, and give even the slimmest of reasons why.  But if they can't even do that, then I'd go with what Justice Ramirez says here.

I get that Justice Menetrez -- and other reasonable people as well -- might strongly disagree.  As well as argue (perhaps appropriately) that if an exception like this is to be made, it should be made by the California Supreme Court, not the Court of Appeal.

And I wouldn't object at all if the California Supreme Court granted review of this case in order to do precisely that.  Indeed, I might recommend it.

But I think, in the end, the result reached by today's opinion is the right one.

Even though the dissent makes incredibly, incredibly strong arguments to the contrary.

Well done all.  Cases like this one are hard, but they also reflect incredibly positively (IMHO) on the state of contemporary appellate jurisprudence in California.  Good arguments.  Reasonable positions.  Persuasive contentions on all sides.

But, in the end, you make a call, and I think this one gets it right.

Even if doing so requires, admittedly, a bit of a stretch in the way we view appellate jurisprudence.

Gonzalez v. Google (9th Cir. - June 22, 2021)

Are Google, Twitter and Facebook responsible for ISIS-led terrorist attacks?  Can plaintiffs sue on the theory that these social media companies can and should do more to "screen out" motivational videos and other speech by terrorists?

That's the question raised by today's Ninth Circuit opinion.

You'll have to be dedicated -- very dedicated -- to read the entirety of the Ninth Circuit panel's response.  There's not one page, or a dozen pages, or even a dozen dozen pages.  The whole thing takes up 167 pages of single-spaced text.  Wow.  We're talking about setting aside several hours if you want to read the entire opinion, including but not limited to the separate views of each of the three members of the panel.

There's obviously a lot at play here.  Including but not limited to the doctrinal scope of the immunity granted to Internet providers under Section 230 of the Communications Decency Act.  Plus, unspoken but underlying the entire debate are contemporary politics, including the recent attacks on "Big Tech" (and Section 230 immunity) as well as the overarching political discourse about whether we're too solicitous of free speech these days.

I won't try to summarize the entire 167; nor could I, even were I sufficiently motivated to do so.  But I will nonetheless highlight this little tidbit from Judge Gould, found on page 128 (!) of the opinion:

"A variation on this view culminated in Brandenburg v. Ohio, 395 U.S. 444 (1969), where the Supreme Court suggested that imminent lawless action was necessary before speech should be constrained. But perhaps given the current state of society, and the catastrophic dangers to the public that can be posed by terrorist activities, public safety may require that speech be limited when it poses a clear and increasing or gathering danger, rather than only “imminent” danger as reflected in Brandenburg, which I consider the Supreme Court’s last word on this subject."

I know I'm an "old-school" First Amendment guy.  But my reaction to this passage was:  "Yep.  That's how it starts."

And I don't particularly like how I think that process ends.

In re Ontiveras (Cal. Ct. App. - June 21, 2021)

What do you do if you're a court and the voters pass an initiative in which the text says one thing but the voters fairly clearly didn't mean what that text says?

That's a classic law school discussion question, and it's also the underlying issue in today's opinion by the Court of Appeal.

There's no doubt that when voters passed Proposition 57, they wanted to give parole consideration for defendants convicted of nonviolent offenses.  Here's what the text says:  “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.”

If you're convicted only of a violent offense, Prop. 57 clearly doesn't apply, so no early parole eligibility.  By contrast, if you're convicted only of a nonviolent offense, indisputably, Prop. 57 applies.

But what if you're convicted of both a violent offense (or more of 'em) and also a nonviolent offense (or several)?  Does Prop. 57 apply then?

The following seem almost undeniably true:

(1) The text of Prop. 57 dictates that, yes, you get parole eligibility, because you've in fact been "convicted of a nonviolent felony offense," yet

(2)  Having Prop. 57 work that way would be completely silly, because it would mean that someone who committed and was convicted of more crimes (e.g., a violent offense PLUS a nonviolent one) would be treated better than someone who was convicted of only the violent offense -- the latter would clearly be ineligible for early parole consideration, whereas the former would be eligible.

So what do you do?

A late 2019 opinion from the Court of Appeal says, well, sorry, we follow the text.  The California Supreme Court then granted review of that opinion.  Today's opinion from the Court of Appeal says, nope, I'm not going to do something that the voters obviously didn't intend, so I'm not going to follow the text.

Today's opinion will also be granted review by the California Supreme Court.  Which will then decide who's right.

It's a tough case for textualists.  On the one hand, they like to follow "unambiguous" text.  On the other hand, they're generally "tough on crime" and don't want "windfalls" for criminals.

These two things are in fairly stark conflict here.

We'll see how the California Supreme Court comes out.  But Justice Guerrero makes clear in today's opinion that the result she doesn't think that there should be much of a fight at all about the merits there.  "[W]e disagree that any reasonable person could have intended such a result. Its absurdity is clear even without considering the specific context of Proposition 57. Our society abhors crime and seeks to deter and punish it. We do not reward it. It, indeed, “cannot be . . . that voters intended a defendant who is convicted of more crimes, i.e., both violent and nonviolent felonies, to be eligible for early parole consideration while a defendant convicted of fewer crimes, i.e., the same violent felony but no nonviolent felonies, is not.” (See Mohammad, supra, 42 Cal.App.5th at p. 727, review granted, italics added.) This result is so absurd and unreasonable that the electorate could not have intended it."

People v. Esquivel (Cal. Supreme Court - June 17, 2021)

While I was reading this opinion this morning from the California Supreme Court -- the only published appellate opinion today from the California courts -- it struck me how fortunate I was to be living in our great state.  The typical upsides and downsides of living in California are well-known; for the former, awesome weather, great beaches, cool citizenry (for the most part), etc., and high housing costs and tax rates (inter alia) for the latter.

But what I really felt strongly when I read today's opinion -- which is by no means an exceptional or unusual one, I might add -- was just how much I like living in a state that has a supreme court like ours.  It's really, really quite good.  The opinions are almost always extremely well-written.  They make sense.  They demonstrate common sense.  And, a huge number of times, they're unanimous.

That's not easy.  At all.  The truth of the matter is that we have a darn good California Supreme Court.  With respect to matters both critical and high-profile as well as in more pedestrian cases.

That's super nice.  It's comforting -- truly comforting -- to know that, at the highest level, your state judiciary is really quite talented and good.  Not only the individual justices, but the institution as a whole.

It's not like I think that other state supreme courts, or the U.S. Supreme Court, are horrible tribunals run by incompetents.  There's nonetheless a difference.  The Supreme Court, for example, has plenty of incredibly bright justices, and often renders well-crafted opinions with which I agree.  But there's a partisanship and vitriol and results-orientedness there that's palpably less present in the California Supreme Court.

Today's opinion, written by Chief Justice Cantil-Sakauye, is yet another example of the mold. Well-reasoned.  Easy to read.  Makes good argument.  Reaches an equitable result.  Unanimous.

Everything you'd hope for.

It's easy to take stuff like that for granted.  I certainly do (at times).  So it bears at least occasional mention.  It's nice to live in a place governed like that -- and with people/justices like that.

I wrote almost all the above before I had a morning that I can definitely describe as . . . interesting, and that itself reaffirmed (albeit on a different level) the many reasons that California is a great place -- and the California Supreme Court's role in keeping it so.  Sometimes I think I might be guilty of what my daughter calls "TMI" on this blog, so I'll keep the details limited, but this morning I was the personal beneficiary of one of the rules created by a prior Supreme Court decision (Tarasoff), and was definitely grateful therefor.  Nature has made California great in a variety of ways, but the people -- as well as the California Supreme Court -- have played, and continue to play, a huge part as well.  My experiences this morning, both in reading today's opinion and otherwise, highlighted for me just how great it is to be surrounded by the place in which I reside as well as the people who share my residence in this great state.

On a more pedestrian note, I also liked today's opinion because Chief Justice Cantil-Sakauye taught me a new word.  Page nine, second paragraph:  "Defendant had not exhausted direct review of the order causing his carceral punishment to take effect."  Had to look that one up.  Made sense after I did, but definitely hadn't seen that word before.  Totally fits the holding of the case, which involves when an opinion is final if a custodial sentence is imposed but suspended, probation follows, and then the guy is violated and the sentence takes effect).  The fancy word wasn't just used to impress people; it fits perfectly.  Well done.

Oh, and I also liked the following two sentences in that paragraph as well, which read:  "The time for him to seek that review had not expired. And he had not successfully completed probation."  As you may know from reading this blog, I occasionally begin sentences with "And" as well -- something that I didn't do a couple of decades ago, but eventually picked up, much to the chagrin of certain people who are convinced it's totally improper grammar.  Good to see that at least I've got the Chief Justice on my side.  (Or at least with whom to share the scorn.)

People v. Kasrawi (Cal. Ct. App. - June 16, 2021)

I'm sure that things like this happen literally a thousand times a day, but since the facts were recited in a published opinion, and since the events at issue happened down here in San Diego, my interest in them was particularly piqued.

Officer John Pardue was driving around in an "affluent neighborhood" of Del Mar at 4:00 a.m. when he sees a guy cross a street in the residential neighborhood and begin to enter his Toyota Prius.  There's no particular reason to think that this guy's doing anything wrong, but (like any other neighborhood) there have been some occasional car break-ins in the area, and Officer Pardue has a "hunch" that the guy might be up to no good.  So Officer Pardue pulls up behind the Prius, shines his spotlight on the guy, hops out of his car, and starts asking the guy questions.  When the guy says he's simply resting on a drive down from L.A. -- an answer the officer finds suspicious because "the residential street was several turns away from Interstate 5" -- the officer puts the guys into cuffs and sits him on his patrol car.  It only takes around 15 seconds between the time the officer pulls up behind the Prius until the time the guy's in cuffs.

Now, as it happens, in turns out that Officer Pardue's "hunch" that the guy was up to no good was spot on.  The guy ends up having a ton of loose change, gift cards and other stuff that he's been stealing from cars in the area, plus he's got an outstanding warrant and tries to ditch a bindle of methamphetamine outside view of the cops (but gets caught).  So the guy gets charged.

The question at issue in the case is whether Officer Pardue had a reasonable basis to stop the guy.  Justice Dato writes the majority opinion and says that, everything considered, pulling up to the guy, shining the spotlight on him, hopping out of the car and immediately questioning him constituted a "seizure" and that there wasn't (at that point) a reasonable basis for it.  But Justice Dato also concludes that the evidence need not be suppressed nor the convictions reversed because the guy ending up having an outstanding warrant so the exclusionary rule doesn't require suppression.  Justice Benke files a "concurring and dissenting" opinion saying that there was a reasonable basis for the stop given the underlying suspicious circumstances.  (This is, to me, simply a concurring opinion, since everyone agrees that the judgment below gets affirmed on the merits, but whatever.)

Okay.  All interesting.  Nicely articulated perspectives on all sides.

I just thought that it was somewhat surprising -- particularly in the modern era -- that there wasn't at least some comment made about who it was here that got stopped.  And why.

Let me say this with extraordinary confidence:  If it was me (Shaun) getting into my Prius at 4:00 a.m. in Del Mar -- which it well could be -- there's zero chance that Officer Pardue shines a spotlight on me and hops out of his car, much less that he promptly puts me in cuffs once I tell him that I'm resting on my way down from L.A.  I'm 54.  I'm White.  I look like the "usual" guy in Del Mar.

I strongly suspect that the guy here does not look like me.  His name is Omar Kasrawi.  I can't tell for sure his age or what he looks like, but I did notice that there's a guy with that name who lives a couple miles away from me who's 32 years old and works as a server at a Red Lobster.  I suspect that one big difference between Mr. Kasrawi and me, quite frankly, is that he's more brown than I am -- which I suspect might play some role in why Officer Pardue had a "hunch" that Mr. Kasrawi was a criminal visiting Del Mar rather than someone living (or visiting someone) there.

Now, look, I suspect there might be other things as well.  There's zero evidence from the opinion that Mr. Kasrawi was "nervous" or anything like that, but the fact that he was younger probably played a role in why someone like him gets stopped (and cuffed) by the police whereas someone my age doesn't even merit inquiry.  Plus, if he's ditching methamphetamine, there's a nonzero chance that he's perhaps got the "look" of a meth addict; probably stealing from cars to support the thing.  Fair enough.

But there's a lot of contemporary discussion and debate about the role of race and ethnicity in police interactions these days.  So I was a little surprised that there wasn't at least a tangential mention of those realities in either of the two opinions in the case.  If only as a recognition that the take one has on Fourth Amendment jurisprudence -- e.g., whether getting a spotlight shined on you at 4:00 a.m. and interrogated by the police simply because you're getting into your Prius on a public street -- might have very differential effects on different groups of people.  For people like me, whether that's okay or not probably won't have much of a practical effect at all; it's extremely unlikely to happen.  By contrast, for people who perhaps look differently than I do, it might make a very big difference indeed, and affect in a very nontrivial way how they experience their daily lives.

Not that any opinion by the California Court of Appeal is going to solve the underlying problem, of course.  But maybe at least a little recognition could be worthwhile.

'Cause reading the opinion just brought home in a very concrete way to me that my experience in Del Mar at 4:00 a.m. might well be very different from the experience of someone else.  Even if we're doing the exact same things in the exact same way, and the only difference between us is how we "look" to the police and whether they have a "hunch" about us or not.  They may end up in cuffs after 15 seconds -- guilty or not -- whereas I get in my Prius unmolested and drive away untouched and unquestioned.

I know, I know:  Not a huge revelation.  This is nothing that no one's said a thousand times before.

But perhaps worthy of at least brief note regardless.

In re Paul Mahoney (Cal. Ct. App. - June 11, 2021)

I've been sick for a bit, so backed up on reading opinions for a while.  Fortunately, I recovered to read this one, written jointly by Justices Bedsworth, Aronson and Goethals.

It's super unique.  It holds an attorney in direct contempt for making silly -- and baseless -- accusations that the trial court was politically biased and that otherwise impugned its integrity.  The consequences imposed were slight (a $2,000 fine), but the opinion goes on at length to explain just how unusual it is for an appellate attorney to be so off the rails and how bizarre it was that, instead of being contrite, the lawyer continued the craziness in response to the OSC re: contempt.  The opinion says a lot about what it means to be a professional and how to act civilly yet forcefully.  There's nothing new in that concept, of course, and most lawyers understand it implicitly.  Sometimes, however, it's good to write that stuff down, and the panel does so here incredibly well.

So I've got zero problem with the opinion, whether its tone, content or result.

Though I can I add just one thing?

I get it.  The attorney here -- Paul M. Mahoney from Claremont -- definitely went way overboard.  He wrote a (crappy) petition for rehearing that didn't cite a single statute or opinion and instead waxed poetic about how "[o]ur society has been going down the tubes for a long time, but when you see it in so black and white as in the opinion in this case, it makes you wonder whether or not we have a fair and/or equitable legal system or whether the system is mirrored by [sic] ignored by the actions of people like Tom Girardi."  So basically, a rant, and a baseless and silly one at that.  For that, yeah, you should get sanctioned.  As well as probably publicly shamed a little bit.  Because, geeze, if you don't know by now not to do stuff like that, that's really quite incredible, and you're doing a terrible job for not only your current client, but probably for all (or almost all) of your other clients as well.

So, again, I've got no problem with what happens here.

But the thing that nonetheless just wants me to push back just a tiny bit here from the overall message of the opinion is the fact that the attorney here, Mr. Mahoney, is pretty clearly reasonably old.  As the opinion itself mentions, Mr. Mahoney has "52 years of practice," and was admitted to the bar in 1969.  Which in turn means he's at least around 75 years or so old.  Now, I get it, that's not an excuse; indeed, after a half-century of practice, presumably one knows -- or at least should know -- how not to write a crazy, off-the-rails petition for rehearing.  I suspect that Mr. Mahoney has written plenty of non-crazy motions and petitions in the past.  The fact that you eventually get a little long in the tooth doesn't exempt you from your responsibility to do your job well if you elect to continue to do it.  Indeed, it means you should know better than to do otherwise.

At the same time, though, the guy's old.  Reasonably old.  Not crazy, 110-and-counting old.  But older for sure.  And maybe, as I creep up in age myself, I'm just increasingly empathetic with the trials and tribulations that sometimes accompany not being "young" any long.  Or, more likely, I've just seen more often how advancing age sometimes causes people -- great people, wonderful people -- to slowly lose a bit over time.  Including, sometimes, a bit -- or even more than a bit -- of their judgment and discretion.

When a 30-year old authors a petition like Mr. Mahoney's, the only excuse is perhaps youthful exuberance and inexperience.  When a 40-year old writes the same thing, there's not much excuse at all.  But when a 75-year old writes the same thing, unless that's the type of thing he's for which he's known, there's part of me that wants to treat him (relatively) kindly.  To understand that, maybe, just maybe, he wasn't always like that what he's become (and done) isn't necessarily entirely the product of who he is internally.  It's perhaps a consequence, in part, of where he is in life.

Now, I get it; a nontrivial number of the justices on the Court of Appeal -- including on the panel -- are 70+ themselves, and in great mental shape.  So I can definitely see why one might take a fairy hardcore position on this thing notwithstanding Mr. Mahoney's age.  And, again, being 75 or so isn't an excuse; it's simply an explanation.  The best that I think it'd do for the guy is simply to perhaps make it more understandable (and thus less categorically culpable) how someone who's otherwise an entirely reasonable and competent fellow might end up where Mr. Mahoney unfortunately finds himself.

So maybe the guy's age just merits some sympathy, or at least understanding.

Which maybe even, in truth, the panel had.  They called the guy up for a hearing.  It sounds from the opinion like they were at least trying to get the guy to understand what he did wrong.  The opinion says: "Nor did Attorney Mahoney recant at the hearing. We tried to nudge him toward a more temperate position but were unsuccessful. Every time he seemed ready to moderate his stance, he would change direction and return to it."

Which sort of happens sometimes, right?  You get a crotchety old guy up there, and try to explain what he's done wrong, and there's part of him that gets it, but he's ultimately just incapable of making the transition to actual understanding.  That's not inconsistent at all with the dynamic that I think might be at least at part in play here.

As a society, we're aging.  People live longer (thankfully).  People work longer -- thankfully (for the most part).  With that, you get both the upsides as well as accompanying downsides.  The downsides may in part include confronting petitions, on very rare occasions, like this one.

I'm sure that age isn't a complete explanation.  The increasingly partisan nature of social discourse certainly probably contributes as well.  Nor does any of this justify Mr. Mahoney's conduct; indeed, if age and hyperpartisanship are partially to blame, then the need for opinions like this one might be even greater than usual, since we might expect additional instances of things like this in the future.  Good to try to cut it off at the outset.  Or at least try.

I say all this only because I might have included a line or two in the opinion that tried to temper the tone of the thing with just a tiny bit of sympathy.  'Cause sometimes people simply aren't at their best.  Through circumstances that aren't an excuse, but that are nonetheless understandable.

In the end, I just hope that Mr. Mahoney retires.  I'm sure it's been a great run.  But sometimes, it's time to move on.  Maybe the opinion helps out with that.  Though I'm sure Mr. Mahoney and his family (if any) would have infinitely preferred a more graceful conclusion to his half-century-plus legal career.

An opinion definitely worth reading.  As well as circumstances definitely worth pondering.

People v. Brewer (Cal. Ct. App. - June 7, 2021)

This is a case about a 28-year old defendant who was sentenced to 63 years in prison for a string of robberies.  Defendant argues this is a "functional life sentence" and unconstitutional in light of his mental disabilities, asserting that he has the functioning intellect of a 10-year old.  The Court of Appeal disagrees.

It's a bad case for the arguments defendant makes.  He was personally armed.  There were a plethora of robberies.  He had a prior criminal record.  You're going to be hard pressed to persuade someone that, at this point, taking a 28-year old off the street until he's 60 or so (assuming time off for good behavior) is unconstitutionally excessive.

On an only tangentially related note, I had to reflect on my own mental competence when I stumbled over a portion of Justice Murray's opinion.  On page four, the opinion reads:

"On November 24 at approximately 6:15 p.m., J.K., the store manager at the ampm on Marconi Avenue, saw two men enter the store."

When I read this, I asked myself:  "Wait.  What's an ampm?  Is that a typo?  An abbreviation for amphitheater?  What?!"

It took me a couple of seconds before I finally figured out what an ampm was.

Too much good stuff.

POSTSCRIPT - An informer reader reminds me that as a "striker" the defendant here actually has to serve a minimum 80 percent of his sentence, rather than half, so the earliest he can get out is age 78, rather than in his 60s). I doubt that fact would sway most readers to a different conclusion, but agree that 78 is super old -- as well as likely exceeds the probable (but by no means certain) life expectancy for a male who's spending 50 years in prison. 

Perry v. City of San Diego (Cal. Ct. App. - June 7, 2021)

One of the great things about living in San Diego is that the City picks up your trash for free.  Well, not  totally "free" -- taxes pay for it, of course.  But it's part of the goods and services that the City provides.

But like most municipal services, this inevitably creates fights about who's entitled to these services and who's not.  So in today's opinion, you've got owners in a condominium complex in Hillcrest -- a hip part of the City -- arguing that the City should have to pick up their trash rather than the condo owners paying someone to do it.

Which in turn means that the condo owners are represented by a lawyer.  I'll call his specialty:  Trash Law.

Unfortunately for them, the condo owners and their lawyers lose, both on summary judgment and in the Court of Appeal.  Here in San Diego, we don't pick up trash (for free) from gated communities like this one.  Only from regular old residences that directly abut public streets.

So the condo owners lose.  You need not feel massively bad for them, however.  It looks like the average condo in this complex is worth around a cool million.  So it's not like the owners don't have the scratch to pay for private trash service.

People v. Lund (Cal. Ct. App. - June 1, 2021)

It's another child pornography case; there are a lot of these.  That whole "looking for kiddie porn" thing is -- to put it mildly -- super fraught with danger, wholly apart from its many other unsavory aspects.

Lest anyone believe that these things aren't super easy to discover, Justice Brown's opinion goes into detail about the automated system that apparently thousands of police officers are using every single day to find people sharing kiddie porn:

"In August 2014, Vacaville police detective Jeffrey Datzman was investigating child pornography cases over peer-to-peer networks. One of the tools Datzman used was privately developed software called the Child Protection System (CPS). CPS is the web interface for viewing results from a suite of several software tools that each search for child pornography on a specific peer-to-peer network. It is used around the world in 84 countries by over 10,000 users, all of whom are law enforcement personnel.

The CPS software suite automates the process of searching peer to peer networks. Previously, law enforcement officers would have to manually input keyword search terms to discover computers that were hosting suspected child pornography and then further investigate those GUIDs. By contrast, CPS sends out search terms continuously. CPS also compares the files listed in response to the keyword searches against CPS’s database of hash values, which contains the hash values of files that law enforcement officers somewhere in the world have previously tagged as being child pornography. If there is a match between the hash values for the files listed in response to the search and the hash values in the CPS database, CPS logs the details of the event in a CPS database for police officers to follow up on later. CPS logs the filenames and hash numbers of the suspected child pornography files being offered; the GUIDs, IP addresses, port number, and, in most cases, software used to offer the files; and the dates and times CPS detected the GUID with the files. Police officers obtain records from internet service providers to determine the physical location of the computer associated with the GUIDs, IP addresses, and port numbers logged by CPS."

So unless you're sharing child pornography (or have it on your computer) that's totally unique and not seen by any officers before, it looks like it's probably going to have a "hash value" and be discovered.

Not a risk I'd take -- at all -- even for things that aren't immoral, harmful and incredibly sleazy.

The other fascinating thing about this opinion is how it begins.  I'm very familiar with the kinds of sentences that are routinely handed out in these types of cases.  The opinion begins by describing the offense:  "A jury convicted Eric Lund of one count of possession of more than 600 images of child pornography, at least 10 of which involved a prepubescent minor or a minor under 12 years old, in violation of Penal Code section 311.11, subdivision (c)(1)."  I totally expected the next sentence to read something like:  "The trial court sentenced Lund to 60 years to life in prison."  But, in reality, the next sentence read:

"The trial court sentenced Lund to five years in prison."

Dude!  Mr. Lund should thank his lucky stars that he only got five years.  Plus it's in state court, which means he likely gets out in two and a half.  In federal court, dollars to doughnuts says he's in prison for more like 15 to 20, minimum.

Why only 5 years, I thought?  Maybe because he's otherwise a "good guy"?  (Apart from the interest in viewing the sexual exploitation of children, I guess.)

Perhaps.  Though once one reads further in the actual opinion, one discovers yet another interesting fact about Mr. Lund.

He's a cop.  Who was viewing the kiddie porn for the most part while on duty.

The guy's not a total idiot.  He'd go to publicly available wifi addresses -- e.g., the Yogurt Beach Shack -- and download the stuff there.  That way it's not linked to his home address.

But you can still totally get caught.  For example, with Mr. Lund, here's how they first caught onto him:

"During the surveillance, Datzman connected to the Yogurt Beach Shack’s router so that he could observe whether any devices connected to the router and see such devices’ “mac ID,” which is a unique specific identifier for a device. On one night, at around 1:00 a.m., Datzman saw a device connect to the router, and he recorded the mac ID. Datzman then drove around the outside of the building to see who was nearby that could be using the device. Datzman noticed a California Highway Patrol (CHP) vehicle parked near the business. Lund was the sole occupant of the vehicle, seated in the driver’s seat and looking down and to his right at a lighted object. Datzman then contacted Sergeant Jason Johnson in the Vacaville Police Department. Johnson agreed to contact Lund using a ruse to determine his name. The ruse succeeded and Lund told Johnson his name. After Johnson spoke to Lund, Lund drove away, and Datzman noticed that the mac ID of the device that was using the Yogurt Beach Shack router dropped off at the same time. No other devices connected to the router that night."

So they get warrants, find flash drives and the like, find more kiddie porn, etc.  For example:  "The external hard drives together contained over 10,000 files that Datzman suspected to be child pornography, based on their hash values’ matches to the CPS database. Datzman reviewed a sample of 73 videos from the hard drives and confirmed that they were child pornography, with almost all of them containing at least one prepubescent minor."

But, still, despite all this evidence, Mr. Lund's first trial ends up in a mistrial, and even after he's convicted at the second trial, he still gets only 5 years.

Not the way these cases usually come out.  At all.

In any event, you wouldn't expect most police officers to be into kiddie porn, right?  Much less to take the risk.

But there you have it.  At least here.

U.S. v. Holiday (9th Cir. - May 27, 2021)

Judge Smith makes a variety of unremarkable -- indeed, correct -- legal and factual assertions in this morning's Ninth Circuit opinion.  But there's one claim in particular that struck me as fairly surprising.

Rather than prejudice you with my own sense (or Judge Smith's), I'll set up the issue just by asking a basic question and getting your answer at the outset.

Here's the question:  In your run-of-the-mill police car chase, which of the following attributes normally exist?  (Warning:  I'm definitely making up some of them.  I just want you to pick out which attributes are the ordinary markers of a police chase, as opposed to those that aren't.)

(A) Sirens.

(B) Air surveillance.

(C) Shots fired by the police.

(D) Dogs.

(E) SWAT officers in full gear.

(F) Tactical nuclear weapons.

To assist you:  Clearly, (A)'s an ordinary marker of police chase, whereas (F) is most definitely not.  Pretty much every police chase -- not all of them, to be sure, but most of them -- involve officers with sirens blaring.  Whereas, to my knowledge, very few police chases involve either the possession or use of nukes.

What about (B) through (E)?  Which ones would you say are ordinary markers of a police chase?  Choose.

Different people might say different things, but personally, I'd think that maybe (B) qualifies, but not any of the others.  Maybe most -- or at least a ton -- of police chases involve supporting helicopters or aircraft.  So I'll go ahead and say that "air surveillance" is an ordinary marker.

But (C) (shots fired by police)?  Nope.  The vast majority of police chases don't involve shots fired, IMHO.  Dogs?  Nah.  Not really.  I'm sure that some of them involve K-9 units (just like some of them involve shots fired).  But that's not an ordinary attribute.  SWAT officers?  Nah.  Again, some chases surely call out the SWAT team.  But not most -- or even, I suspect, many -- of them.  That's not an ordinary marker of a police chase.

So, in the end, I say (A) and (B).  You?

Whereas Judge Smith says:  (A), (B), (D) and (E).  Which seems a fair piece aggressive -- and factually inaccurate -- to me.

What follows is the actual line from Judge Smith's opinion. Context: The government showed the jury a videotape from a police chase, ostensibly not to prove that the defendant was a bad guy, but principally to show that he possessed a particular sweatshirt -- a sweatshirt that the video showed he indeed wore during the police case, and that indeed looked awfully similar to one one worn by the robber during the robbery. (Put to one side the fact that the videotape was wholly unnecessary to prove the possession, since the defendant was surely willing to stipulate to that fact, the police officers could surely testify to it anyway, and the government in any event undoubtedly had the sweatshirt itself in its possession to actually show to the jury what defendant was wearing on the day of the chase.) Was showing the jury a video of the police chase unduly prejudicial?  Judge Smith says no, claiming . . . .

"Although the video showed 'a vehicle police chase, SWAT officers in full gear, dogs, air surveillance[,] and sirens,' none of these features is particularly prejudicial, as all are ordinary markers of a police chase."

You already know my take on that front.  Sirens, yes.  But showing the jury that this particular chase involved SWAT officers in full gear and dogs; well, those aren't "ordinary markers of a police chase" under at least my understanding of what police chases usually entail.  And I bet that's even more so for the lay jurors at issue.

Maybe it's not an abuse of discretion or the like to admit the evidence; on that, I can see why someone might come out the way Judge Smith does.  But SWAT officers (in particular) and K-9 dogs as 'ordinary markers of a police chase?" I think not.

White v. Molfetta (Cal. Ct. App. - May 24, 2021)

As one gets older, there's generally an increasing tendency to want to impart wisdom to others.  Maybe it's in part a slight recognition of mortality.  Maybe it's an understanding that age and experience often bring knowledge to the table that's easily overlooked in one's younger days.  Or maybe that's just the nature of being an elder statesperson.

Whatever the cause, it happens.  You want to leave something behind.  You want to share your insights with others.

Of course, this isn't necessarily limited to those with experience.  Plenty of excited youth are more than interested in spreading their wisdom as well.

I say all this after reading this opinion by Justice Bedsworth.  It's doctrinally a case about damages, and affirms the trial court's dismissal of a lawsuit because plaintiff can't prove that he was harmed in a way in which the law allows compensation.  But more generally, Justice Bedsworth wants to use the opinion to remind lawyers to do a good job.  That it matters.  A lot.

You get a sense of the tenor of the piece from its first two paragraphs:

"The practice of law has become complex and difficult. If practiced as it should be – as a profession – it has never been easy. But the demands on counsel’s time and talent have multiplied exponentially of late, and the 21st Century practitioner’s responsibilities far outstrip those we bore 25 years ago.

But recognition of this fact should be an inspiration to excellence rather than an explanation for failure. No matter how stressed and challenged they may be, lawyers must treat clients – all clients – with basic professional courtesy. That seems rudimentary, but it’s often overlooked or neglected. It shouldn’t be."

The client here gets treated relatively poorly, with his criminal defense lawyer not responding at all to several letters.  The Court of Appeal holds that this isn't actionable, but nonetheless, wants to remind everyone to do better next time.  To try their best.

Seems like a reasonable message to me.

On another note, at the end of the opinion, after explaining why the plaintiff can't recover compensation notwithstanding the bad things that happened to him, Justice Bedsworth says:  "So we are left with the proverbial wrong for which there is no remedy."  Which struck me as particularly funny; not ha-ha funny or anything, but ironic.  Since there's an express maxim of statutory jurisprudence -- enacted by the Legislature, no less -- that says the exact opposite.  Civil Code 3523:  "For every wrong there is a remedy."

I get what the Court of Appeal is saying.  "More precisely, we are left with a wrong from which there were no damages – at least no legally cognizable damages."  It's just funny to use words that are the precise antithesis of something written down in the law books.

U.S. v. Lopez (9th Cir. - May 21, 2021)

Add today's opinion to the legion of statutory interpretation cases about whether "and" means "and" or "or".

For the record:  For this statute, the panel says it means "and".  Which, in truth, is usually the right call.

It's an exciting opinion for statutory interpretation fans.  It discusses a ton of the relevant canons -- plain meaning, legislative intent, surplusage, absurdity, rule of lenity, etc. -- and discusses them well.  Indeed, the principal conflict between Judge Murguia's opinion and Judge Smith's concurrence is whether the "and" interpretation makes another statutory provision surplusage; Judge Murguia says it doesn't, whereas Judge Smith says it does, but that it doesn't really matter.  Neat take.

I'll add parenthetically that the conflicting expressions of legislative intent cited in the opinion are a good example of legislative history that pretty much matter zero.  On both sides, the legislators aren't focusing on or even talking about the statutory text at issue.  They're just talking about the "purposes" of the bill in general.  Vague expressions like that don't really help much.  On either side.  (By contrast, when there's specific evidence relevant to the meaning of the actual words at issue, then I personally think that's entitled to some weight -- Scalia etc. be damned.)  (*Not literally.)

San Diegans For Open Government v. Fonseca (Cal. Ct. App. - May 19, 2021)

It's a fact of life that, sometimes, particular trial court judges simply don't personally like particular high-profile attorneys who appear before them.  The flip side is also true, of course; sometimes, judges really respect and enjoy having particular attorneys before them.  Usually, you hope those sorts of things don't affect the results achieved in the litigation -- with some notable exceptions, of course.  But, on the whole, at the trial court level, there are some repeat players, and sometimes, the fact that a particular judge doesn't feel much fondness for the particular attorney at issue might potentially affect, at least slightly, the way the case resolves.

By contrast, you don't see that as much on the appellate side.  There are good and bad lawyers in the Court of Appeal, of course.  As well as particular judges who like or dislike particular practitioners.  But I don't get the sense that the level of interaction -- or strength of feeling -- is particularly high in the Court of Appeal, or at least is less than what you often see in trial courts.  If only because justices on the Court of Appeal simply don't spend as much time with even repeat player advocates as trial court judges do with lawyers at lower levels; e.g., during the course of even a single trial.

I say all this as backdrop to this opinion, in which -- reading between the lines -- I sense a nontrivial amount of hostility.  From the trial judge against the plaintiff's lawyer, who's a definite repeat player down here in San Diego.  And, similarly, from the judges on the Court of Appeal against that same lawyer and the public interest organization with which he's closely involved and represents on appeal.

I'm not expressing any judgment as to who's right or wrong in the case.  It's about whether a particular organization has standing to file a citizen suit -- an organization that files a fairly substantial number of public interest lawsuits.  The Court of Appeal describes the testimony of the organization's Board member and PMK deponent in fairly stark and negative terms (though accurately).  The panel also employs relatively harsh terminology that you sometimes -- but don't generally -- see in appellate decisions; for example, saying not only once, but twice, that certain evidence was "woefully insufficient" to establish a particular claim.

Read the opinion to see if you agree, but reading between the lines, I just got the keen sense that the justices on the panel thought that the underlying organization and its lawyers were at least a little bit sleazy and were trying to manufacture organizational standing that in reality didn't at all exist.  Hence the language and temperament of the opinion.

Perhaps in an even more deeply felt fashion than even the trial court.

Sansing v. Ryan (9th Cir. - May 17, 2021)

Okay, I get it (I guess):  You love the crack cocaine.  You and your spouse have been on a binge for the past four days.  You're looking to continue the streak.  Maybe -- after four days, anyway -- you're also a little bit hungry.  Or, at a minimum, your four children are (!).

So you call a local church and ask them to deliver a box of free food.  That's a fine decision.

The suboptimal choice, by contrast, is your contemporaneous decision to rob whomever the church sends to deliver the food.  Ditto for your ultimate decisions to rape and kill her in your home, and then to "hide" the body in a shed in your backyard under a piece of old carpeting.

That stuff gets you sentenced to death.  Although Judge Berzon dissents, Judges Watford and Callahan are okay with the conviction and sentence, so that's pretty much it for your federal habeas petition (barring en banc review or the Supreme Court favorably stepping in).

If you were in California, you could probably not worry about actually being executed.  But Arizona's likely to restart executions in a little bit (after a seven-year hiatus).  So there's a real chance that you'll actually get a date with the needle.

Don't do crack cocaine.  Don't kill people.  Two important reminders for those otherwise inclined.

Cheneau v. Barr (9th Cir. - May 13, 2021)

Without particularized knowledge of the Ninth Circuit, you wouldn't necessarily think that today's en banc opinion would come out the way it did.  Indeed, it some ways, the lineup today is the least likely of all of the various plausible results.

It's an immigration case.  Mr. Cheneau is convicted of various crimes (burglary, car theft, etc.), and the government wants to kick him out of the country as a result.  But, not surprisingly, Mr. Cheneau does not want to leave.  He says he's a "derivative citizen" under a particular statute even though his parents were from outside the United States, he wasn't born in the U.S., and he only came here when he was 13, on a nonimmigrant student visa.

You can figure out the typical sympathies in en banc cases like this.  The left-leaning judges appointed by presidents from the Democratic Party (i.e., Clinton and Obama) are likely to lean towards Mr. Cheaneau, whereas the conservative judges appointed by presidents from the Republican Party (i.e., Bush and Trump) are likely to be predisposed against him.

But there's a bit of a wrinkle here.  Circuit precedent is strongly against Mr. Cheaneau; under that law, he clearly loses.  But there's a decent argument that this precedent misreads the relevant statute.  Hence why the case gets taken en banc.

So it depends on the draw, right?  There are 16 Democratic-appointed active judges and 13 Republican-appointed active judges.  Statistically, the draw's likely to be a mix, and the outcome in large part will depend on who gets chosen.

The draw happens.  Six Trump appointees get selected; four Clinton/Obama appointees round out the panel, plus Chief Judge Thomas (Clinton).

So one way you might draw up this result is to say:  "Okay, it's likely to be a 6-5 against the immigrant, with the conservatives voting to deport the guy and the liberals voting to keep him here."

But that's not the way it works out.

Which is perhaps foreshadowed by the original panel opinion.  A unanimous per curiam opinion in which Judges Bennett and Miller -- both Trump appointees -- are on the panel.  The panel held that they were indeed bound by circuit precedent to hold against the immigrant.  But everyone on the panel also joined a concurrence that said that this circuit rule was wrong as applied to the facts of the present case.

So if you've got even two conservative Trump appointees (joined by a judge sitting by designation) arguing in favor of the immigrant, then another way one might well predict the result of the en banc court is to say:  "Well, apparently, this one's easy, and everyone of all political stripes will agree."  (Or at least most everyone.)  Maybe it'll be an 11-0?

You might even think such a result more likely when the en banc panel decides they don't even need oral argument to decide the case.

But, yet again, as it turns out, such a prediction would also be wrong.

Instead, two unlikely things happen.  First, of the six Trump appointees drawn for the panel, two of the six are Judges . . . Bennett and Miller.  The two judges who were on the original panel.  The odds are very, very strongly against that.  But it happens.  Then, the four remaining Trump appointees who are drawn are . . . the final four Trump appointees to the Ninth Circuit (Judges Bress, Hunsaker, Bumatay, and VanDyke).  Again:  Statistically, not very likely at all.

So, in the end, you get a 7-4 decision in favor of Mr. Cheaneau.  The five Democratic appointees join the two Trump appointees who were on the original panel to form a majority, and the last four Trump appointees dissent.

Pretty neat.  Not the draw (or outcome) one would have necessarily written up at the outset.

One lesson that might potentially be derived from this result in the occasional difference between the early Trump appointees -- Judges Bennett and Miller were two of the first three Trump appointees to the Ninth Circuit -- and the end-stage Trump appointees.  Personally, I don't want to make too much of this, but still, it's worth considering.

The other potentially partially explanatory factor at work here is how relatively little the case matters in the broader statutory immigration scheme.  As the majority opinion explains in its final footnote:

"We recognize that this case involves a statute that has been repealed and will not affect many cases. As the Government observed, “litigation regarding § 1432(a)(5) is not widespread, and will continue to diminish with the passage of time.” We also recognize that, not only is litigation concerning this issue “not widespread,” but that this case involves relatively unique circumstances. It is striking how many events had to align at particular times and in a particular order for Cheneau to qualify as a derivative citizen under § 1432(a)(5): He lawfully entered the United States at age thirteen, intending to remain permanently in the country. His mother naturalized while he was under eighteen. He objectively and officially manifested his intent to reside permanently in the United States by filing an adjustment of status application before he turned eighteen. And all of this occurred before the statute was repealed in 2000. Nonetheless, it is important for resolution of this case, and the relatively few cases involving similar circumstances, for us to apply the proper statutory analysis and to apply a correction to the relevant portion of Romero-Ruiz."

It's perhaps easier for conservative judges to find in favor of particular immigrants in cases involving idiosyncratic and not-often-replicated fact patterns involving repealed statutes than in cases that have broader application to immigrants as a whole.

Regardless:  Neat little lineup, and neat -- and perhaps somewhat unexpected -- result.

 

In re Marriage of Kelpe (Cal. Ct. App. - May 11, 2021)

One of the things about reading marital dissolution cases is that they sometimes provide a glimpse into the personal and/or professional lives of the litigants.  Sometimes that's enlightening.  Sometimes that's a bit depressing.

In today's opinion, it's a little of both.  The spouses here were married in 1997 and separated in 2010.  So they had 13 years together.  Husband was a senior manager with Ernst & Young throughout the marriage.  Not a bad job.

On the upside for Husband, he becomes a partner at E & Y.  As a double-plus upside, he joined the E & Y partnership on January 1, 2012 -- less than two years after getting separated.  Which means that all his partnership money is his separate property.  Including the nearly $1 million lump sum retirement payment that's at issue in this case.

Lesson:  If you're going to get divorced, do it right before you start making the big bucks.

So total good luck for the Husband, right?

Sort of.

He becomes a partner in 2012.  Then look at what happens right after that:  "Respondent suffered a heart attack in 2014. In October 2015, Ernst & Young requested that he withdraw as a partner, and he resigned from the firm effective December 2015."

So, yeah, Husband becomes a partner, and gets all the money, but what it took to eventually get there takes its toll, and he's only a partner for a couple of years before his debilitating heart attack and resulting forced departure.

Sometimes bad comes with the good.