Wednesday, March 31, 2021

Friends of the Earth v. Sanderson Farms (9th Cir. - March 31, 2021)

There's a lot about this opinion by Judge McKeown that's really good.  It's a tight, coherent and well-explained disposition.

But there's one part that seems to me very much unlike the others.  And that might make for some really bad law.

The issue is what it takes to have organizational standing.  Friends of the Earth and the Center for Food Safety are two organizations that care deeply about not using antibiotics in food production.  While many chicken "producer" companies have phased out the routine use of antibiotics, Sanderson Farms hasn't, and that matters a fair piece, because Sanderson sells its chickens to (amongst others) Olive Garden.  So the two organizations put out blog posts and other literature that try to educate people about the dangers of Sanderson Farms' practices and its ties to Olive Garden.

In August 2016, the two organizations became aware that Sanderson marketed and advertised its chicken products as “100% Natural” and ran advertisements stating that there were “[n]o antibiotics to worry about here.”  Claims to which -- understandably -- these public interest groups took umbrage.  After conducting investigation into these claims, in 2017, the two organizations sued Sanderson for false advertising.

The question is whether the organizations have standing to file this suit.  Everyone agrees that the groups have organizational standing if they diverted organizational resources to respond to the false advertising, whereas everyone also agrees that there's no standing if they simply carried on their "business as usual."  What's in dispute is where the dividing line exists between these two poles and on which side the facts of the present case happen to fall.

Judge McKeown concludes that the district court didn't err when it found that the organizations didn't have standing because they didn't “expend[] additional resources that they would not otherwise have expended [] in ways that they would not have expended them.”  There's lots in her opinion that supports that conclusion, and overall, I get the disposition.  For the most part, the organizations appear to have kept on doing what they were already doing.

Here's the part of the opinion, though, that I found infinitely less persuasive than the remainder.

After exploring all the things the organizations didn't do differently, Judge McKeown says:

"Once Sanderson’s misleading advertisements were brought to the attention of the Advocacy Groups, they simply continued doing what they were already doing— publishing reports on and informing the public of various companies’ antibiotic practices. This evidentiary void cannot be filled by emails in which the Advocacy Groups’ employees shared articles about Sanderson’s practices and deceptive advertisements, querying internally whether something should be done; evidence of any diversion of resources remains missing."


It seems to me a profoundly bad rule that "diversion of resources" can't be found when the diversion is simply internal.  Moreover, unlike the remainder of the opinion, this particular holding in the opinion isn't supported by analysis and/or precedent; it just sits there.

Imagine, for example, that an organization becomes aware of a particular company's false advertising and is profoundly worried about it.  It thinks it might decide to sue, or maybe start a new advertising campaign, or (perhaps) do nothing.  So it hires a new employee to investigate the advertising and make sure it's false and harmful; moreover, two existing employees of the organization spend 25% of their time reviewing the new advertising and deciding what should be done.  There are emails, memoranda, and the like that confirm all of this internal activity.  Ultimately, the organization decides to file suit, and the defendant moves to dismiss for lack of organizational standing.  Let's also stipulate that the organization hadn't conducted any new campaigns or the like in response to the new advertisement prior to filing its lawsuit. 

Judge McKeown is undoubtedly right that you can't create standing by simply pointing to the resources spent filing (or prosecuting) the lawsuit itself; for that reason, she cuts off any "diversion" at the point at which the organizations filed suit.  (This may perhaps be an overly broad application of the rule, but that's a separate point.)  But, to me, the organizations undoubtedly have organizational standing in the hypothetical I've described notwithstanding the fact that all the diversion of resources was "internal" to the organization.  The standard is whether the entity “expended additional resources that they would not otherwise have expended, and in ways that they would not have expended them.”  Yes, one of the ways you can expend additional resources is to do things externally; new campaigns, new advertisements and the like.  But that's not a categorical rule; or, at least, I didn't see that as a categorical rule before today.  If the false advertising causes you to waste money internally, that seems like it fully qualifies as well, so long as you're (as in the hypothetical) spending money in ways you weren't spending it before.

For that reason, it seems wrong to say that organizational standing can't be created by, inter alia, "querying internally whether something should be done" -- if that results in a diversion of resources, yeah, that counts.  If you hire a thousand new employees to consult on and decide whether a new campaign should be conducted in response to the false advertisement, you've got standing; ditto for one new employee, or a diversion of twenty percent of an existing employee's time.  That's time and effort (and money) that can't be spent on what you're ordinarily doing, and it creates standing.

So the principle that Judge McKeown espouses seems just wrong as a categorical matter.  Now, I could potentially see her (or the district court) perhaps saying something like "the diversion here was simply de minimus" and that a couple of emails (or whatever) doesn't count as an actual "diversion".  But the fact that the diversion was internal doesn't matter to me.  And saying that "querying internally whether something should be done" can't create standing just seems wrong.  I think it can, as well as should.

I agree that a stray email or two won't count.  But that goes to the quantum of evidence, not its quality or nature.  You get enough internal emails, and, yeah, that's sufficient diversion and standing -- after all, while the virtual ink is free, the employees' time isn't.  Make a false advertisement and make a group spend tons of internal money deciding what to do about it and, yep, they've got standing to sue.

At least in my view.

Monday, March 29, 2021

Yue v. Yang (Cal. Ct. App. - March 29, 2021)

You occasionally see family law cases in the Court of Appeal in which both sides represent themselves, but even that is rare.  It's even less often that you see non-lawyers represent themselves in regular civil cases, and extraordinarily uncommon to see such cases result in published opinions.

Yet here we are.  A published opinion about personal jurisdiction in California over allegedly defamatory conduct over the Internet.

I'm not certain that the opinion desperately needed to be published, since it's largely fact-specific about this particular case.  But it reverses, so at least one trial judge could use a little edification.

Now they all can learn.

Thursday, March 25, 2021

People v. Moine (Cal. Ct. App. - March 24, 2021)

If the Court of Appeal is correct about what the statute says -- and it might well be -- then perhaps we've gone too far.

Marco Moine has some problems.  Here's what prompted his latest foray into the criminal justice system.  (I recite the facts at some length because they're potentially indicative of his risk of reoffending, which is one of the key issues.)

"The People charged Moine with three counts of assault (the assault counts) and two counts of making criminal threats (the criminal threat counts) for two separate incidents occurring in the offices of two different medical care providers.

The first incident involved a fist-fight that took place in the waiting room of an urgent care facility in Palos Verdes on April 20, 2017. On that day, while Moine was in the waiting room, he asked a staff member at the front desk to turn off the television. Another patient confronted Moine about his request, and they entered into a fist fight. They each landed blows upon the other. At trial, they each presented conflicting testimony about who initiated the confrontation and who was more aggressive.

The second incident took place nearly a year later in another medical provider’s waiting room. On March 12, 2018, Moine sought medical care at an urgent care clinic in Loma Linda, hoping to secure a refill of his medications. After Moine saw the physician’s assistant, an office manager escorted Moine from the treatment room and handed him his prescription. Moine became upset that a referral to a psychiatrist had not been approved, and he questioned the office manager about the medication he had been prescribed.

As Moine left the medical office with his mother, the office manager heard him say something “along the lines of, ‘This is America. I can go home and get my gun and come back and shoot all of you.’ ” The officer manager explained that over the course of a five-minute period, Moine made several other statements, which she described as “ranting,” and he was cursing, pacing, and “talking with his hands up in the air” as he spoke.

A nurse who was at the front desk testified that Moine was visibly upset. She did not “remember exactly” the words Moine spoke, but recalled him saying “If I didn’t get—they are lucky— they are lucky I don’t have my gun with me, otherwise I would kill everybody here.” He continued, “I am going to come in and kill everybody here.” On cross examination, she agreed he also used the phrase, “If I had a gun.”"

Those are the latest things.  Mr. Moine also has a fair amount of prior criminal history.  He's currently being charged with a "misdemeanor charge of resisting an officer in violation of section 148, resulting from his refusal to comply with officers’ commands in responding to a report of a possible overdose. He also faced a misdemeanor charge of petty theft in violation of sections 484 and 490.2, for stealing medical supplies."  Plus "the probation officer’s report indicates Moine had four prior misdemeanor convictions, three for drug or alcohol related offenses and one for hit and run."

It's fairly clear that Mr. Moine has a mental health problem.  Probably also a drug problem too; perhaps related.  The point is:  As a result, there's a fair degree of spontaneous violence, over a nontrival period of time.

The trial court seems to understand that, so doesn't sentence Mr. Moine to prison; rather, the "court suspended imposition of sentence and placed Moine on probation for five years."  Which seems to me like a reasonable resolution.

Moine appeals, saying that he should have been granted mental health diversion.  Under the statute, you get diversion if (essentially) your mental health problems were a significant factor in the commission of your crimes -- which is definitely the case with Mr. Moine -- and your release wouldn't pose an unreasonable risk to public safety.  It's that last factor that's principally relevant here.  Since he's got a doctor who says his mental condition might respond to treatment, if Mr. Moine isn't a risk to the public, then the charges against him get postponed for a year or two while he gets treated, then if everything goes okay during that period, the charges are dismissed.

So the question is whether releasing Mr. Moine for those couple of years would create an unreasonable risk of safety to the public.

Whatcha think?

He did, after all, say things like "This is America. I can go home and get my gun and come back and shoot all of you" and "I am going to come in and kill everybody here."  Plus there's the obvious mental health and violence control issues.  I bet that if he was released, and then ended up as a mass shooter, a ton of people would say:  "It was so obvious!  How could anyone not see it?!"

Of course, maybe Mr. Moine is ATNA (all talk, no action).  (I learned this acronym yesterday in a different -- albeit also disturbing -- context.)  At least as guns go.  After all, he hasn't yet shot anything up.  Yet.

Even if that's so, however, he's clearly got impulse control and violence problems.  Witness the assault charge and all the threats.  There's fairly clearly a real risk that if he's released, he's going to end up punching someone.  Or worse.

Is that sufficient under the statute to disqualify him from mental health diversion?  Does it mean that releasing him would create an unreasonable risk to public safety?

The Court of Appeal says:  "No.  Not even close."

Through a convoluted series of cross-references -- including reference to "clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667" -- the Court of Appeal says that you're only an unreasonable risk to public safety under the statute if you're going to engage in so-called "super-strike" offenses.  What are those?  Things like "murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment."  Unless you're going to commit one of those (or some molestation offenses), you're all good.  Mental health diversion for you.

Which strikes me as a fairly seriously narrow category of crimes.  Let's say, for example, a guy with mental health issues commits a plethora of serious offenses -- e.g., whacking a ton of people with a baseball bat -- and we're convinced that if he's released, he's going to do the same thing again, this time to a bunch of little kids.  He says:  "You gotta release me anyway.  Yes, I'm a clear danger to society if released, but since I'm not shooting a police officer with a machine gun or anything like that, tough for you, since what I'm likely to do isn't a death penalty or life sentence offense and hence you're required to take that risk.  No discretion."  Is he right?

Apparently so.  Sure, you can potentially try to fudge at the margins, and say "Well, you gotta be able to find a doctor who says you'll respond to treatment," but realistically, how hard is that?  The Court of Appeal says its an abuse of discretion to find dangerousness short of these incredibly serious crimes.  I get it. It looks like the statute might well say that.

But, if so, wow.  That perhaps seems to take mental health diversion perhaps a bit too far.  At least if we say that categorically no other types of societal dangerousness can be sufficient.  Which is definitely what the Court of Appeal holds here.  Holding, on that basis, that releasing Mr. Moine doesn't constitute an unreasonable risk to public safety.  At least as the statute currently defines it.

The Court of Appeal says something else related to this issue that is both worth mentioning as well as simultaneously (1) seemingly true, but (2) might have unanticipated consequences.  About halfway through the opinion, the Court of Appeal says:  "Our conclusion is further supported by the trial court’s decision to release Moine into the community on bond for a period of over two years, which indicates the court necessarily found that Moine was not likely to cause “great bodily harm to others” if released. (Cal. Const., art. I. § 12, subds. (b) & (c).) It is logically inconsistent to deny mental health diversion on the ground that Moine was likely to commit a super-strike offense, while simultaneously finding he was not likely to inflict great bodily injury on persons in the community."

That's a pretty good point.  It's hard to argue that releasing someone would create an unreasonable risk to the public when, earlier in the case, you previously decided to let him out.  If it was okay to release him before trial, why isn't it similarly okay to release him so he can get treated?

I think there's at least a possible answer to this question, depending on the case, because pretrial release on bail happens before someone's found guilty, whereas sometimes mental health diversion is requested after conviction but before sentencing.  It wouldn't necessarily be absurd to say "Well, at this point, we presume that you're innocent, so I'm going to grant you bail," yet later say "Now that the jury has found that you did in fact commit the assault at issue, and the presumption no longer exists, the offense that you committed establishes that you'd probably be a danger if released."

But if everyone relevant -- both bail and mental health diversion -- are requested pretrial, then, yeah, the Court of Appeal has a pretty good point.

The only downside of this is how trial courts might perhaps respond to this reality.  If you say that you can't find future dangerousness and hence stop a guy from (eventually) getting the charges against him dismissed via mental health diversion if you've previously granted him bail, then I could readily see trial courts exercising their discretion . . . to not grant bail.  Maybe they're fine to let the guy bail out but are super unwilling (as here) to let the charges be entirely dismissed.  I could easily see a trial court saying (subconsciously or sub rosa) "Maybe in the old days I'd grant this guy bail, but no way am I doing so since the Court of Appeal has now said that when I do so I can't find the guy too dangerous for mental health diversion and dismissal.  Rot in jail, my friend."

Sometimes trying to do something good might practically have the opposite effect given unintended consequences.  Maybe including here.

Monday, March 22, 2021

Academy of Country Music v. Continental Cas. Co. (9th Cir. - March 22, 2021)

I'm glad that this case came out the way it did.  Moreover, Judge Callahan's opinion contains much to recommend it.  She does a very good job of both explaining prior precedent -- albeit stretching a tiny bit at times to make it ostensibly consistent -- as well as sorting through some tough jurisdictional questions that arise when a party attempts to appeal an order remanding a removed case back to state court.  As someone who teaches civil procedure, I can attest that this is no easy task, for students and lawyers alike.

I'll nonetheless mention that even though I like how the opinion comes out (since I agree with Judge Callahan that the district court improperly remanded the case), it takes a particularly narrow view of what the district court actually did to get there.  The law is that if a district judge remands a case pursuant to Section 1447(c), a party can't appeal; by contrast, if the district judge remands the case for other reasons (e.g., those not set forth in 1447(c)), a party can appeal.  The Supreme Court has held that 1447(c) does not require a defendant to prove jurisdiction in its removal papers (i.e., include evidence), but that those papers nonetheless require a "plausible allegation" of jurisdiction therein to avoid dismissal.

Judge Callahan's opinion holds that Judge Klausner erred by requiring proof of jurisdiction, and since he did so, his remand wasn't based on 1447(c) and was thus subject to appeal.  Doctrinally, that move may perhaps work, and permit the Ninth Circuit to hear the appeal and reverse.

But I'm not convinced it's what Judge Klausner actually did.  The Ninth Circuit says:  "The district court erred as a matter of law in requiring that the notice of removal “prove” subject matter jurisdiction instead of containing plausible allegations of the jurisdictional elements."  Yet here's how the district court's order actually reads:  "The Court is unable to find a plausible allegation that the amount in controversy has been met."  The subsequent paragraphs of the order then attempt to explain why the district court concluded that the allegations of jurisdiction (e.g., that the case was worth over $75,000) were implausible.

If the district court was simply wrong about the allegations being implausible, there's no ability to appeal, so the Ninth Circuit can't correct the error.  Hence the Ninth Circuit's holding that the district court applied the wrong standard by requiring "proof" of jurisdiction "instead of containing plausible allegations of the jurisdictional elements."  But given that the district court expressly held that there was no "plausible allegation" of the amount in controversy, I'm just not at all confident that the Ninth Circuit's right; he was at least ostensibly applying the right standard -- he was just wrong to hold that the allegations were implausible.

Admittedly, the problem here arises in part because of the whole "plausibility" standard in the first place.  There's a fine line between being "wrong" because you think that certain allegations aren't plausible (which means there's no appeal) versus being "wrong" because you think that the party has to "prove" jurisdiction as opposed to merely plausibly allege it (which would mean we do allow an appeal).  The Ninth Circuit was basically saying that the district court required too much at the pleading stage.  Sure.  But really what the district court was doing was "requiring too much" not because he thought there needed to be "evidence" of jurisdiction in the moving papers, but rather because he (wrongly) thought that the allegations therein weren't sufficiently "plausible" to establish jurisdiction.  So he applied the right standard, just incorrectly, because he was way too strict.  If you that, there's no appellate jurisdiction -- hence why the Ninth Circuit said that he applied the wrong standard, even though his order expressly articulated the right standard and said he was applying it.

To reiterate:  It's hard to tell the difference between being "wrong" on the merits of a pleading versus applying the wrong pleading standard, particularly when the district court at least sets forth the right standard (but then arguably doesn't apply it correctly).  That's an underlying problem with the plausibility standard itself, particularly when rigorously applied.  A problem that exponentially increases when, as here, you're applying that law with respect to removal, since we sometimes remand cases sua sponte, with the additional complexity of not allowing an appeal.

But when the district court expressly says that there's no plausible allegation of jurisdiction and that that's the standard, and then goes on to explain why (in its view) there's not one here, it's hard to argue -- as the Ninth Circuit does -- that the district court wrongly thought that the removal papers required more than just a plausible allegation of jurisdiction.  It's just hard to read the record that way.

Even if doing so results, as here, in getting the case "right" and correcting the district court's error.

Thursday, March 18, 2021

City of LA v. Superior Court (Cal. Ct. App. - March 18, 2021)

We live in America.  California, even.  It's absurd that we have lawsuits about contracting typhus here.

This is not the Middle Ages.  The United States should not see cases of typhus here.  Much less in downtown Los Angeles.

Yet here we are.

Tuesday, March 16, 2021

People v. Hoffman (Cal. Ct. App. - March 16, 2021)

A version of "Name That Tune" with respect to opinions from the California Court of Appeal would be to attempt to accurately and summarize the thing in as few sentences as possible.

For this opinion from today, I can Name That Tune in a single sentence:

The evidence isn't insufficient as a matter of law to keep someone detained as an SVP when he's a repeat child molester who forthrightly admits that he can't guarantee that he won't molest another child upon his release, even though most -- but not all -- 74-year olds don't have the energy and desire to keep molesting kids.

Justice Yegan also keeps his opinion short -- around three double-spaced pages (including a reference to Steinbeck) -- but that single sentence pretty much says it all.

Monday, March 15, 2021

Aguilar-Osorio v. Garland (9th Cir. - March 15, 2021)

The majority says it's a weird case because the immigration judge (1) refused to admit a document -- a country report -- as part of the record, but then (2) relied on that very same (excluded) document to reach its decision.  And then, on review, the BIA didn't address this underlying problem.  So it remands so the BIA can decide what it should do with respect to this apparent dilemma.  It thinks that's a cautious and reasonable solution to the problem, saying:  "The question of how to treat this unusual situation is an issue that the BIA has not addressed and therefore we cannot decide in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002) (citations omitted) (“[T]he proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.”). We therefore remand the CAT claim to the BIA for reconsideration in light of the fact that the IJ took judicial notice of, and relied upon, the Country Report."

By contrast, Judge Van Dyke takes the exact opposite view.

Although he's been on the court only for only around a year, Judge Van Dyke isn't much worried about making friends with his dissents.  Or at least not with Judges Fletcher and Schroeder.  It looks to me like the majority opinion was designed to be an unpublished memorandum disposition, and is per curiam -- but that Judge Van Dyke insisted that it (and his dissent) be published.  A dissent that begins like this, with the underlying footnote contained in the parenthetical below:

The majority’s lawless remand of this case to the BIA flouts binding precedent stating that the BIA is not required to consider—nor are we permitted “to take judicial notice of”—a country report that is “not part of the administrative record or not previously submitted to the Board.” Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc). (Footnote: I recognize that “lawless” is a strong word, and I don’t use it lightly. But it is sadly appropriate here. The majority not only fails to cite any relevant precedent for its remand to the BIA—thus evincing that its remand is, precisely, “not regulated by or based on law,” Lawless, Merriam-Webster Dictionary, dictionary/lawless (last visited Feb. 25, 2021)—it even has the cheek to cite Fisher, which actually forecloses its remand rationale, in the part of its opinion ordering the remand. “Keep your enemies close …,” as they say.) But notwithstanding contrary on-point, en banc authority, I guess nobody can make intransigent judges unknow what they already know they know. . . ."

Describing your colleagues as "lawless" and "intransigent" -- and using the word "enemies" -- is surely a strong opening paragraph.  Particularly for a proposed memorandum disposition in an immigration case that sends the thing back for what will almost certainly be the same result on remand.

But Judge Van Dyke has a definitive take.  And isn't shy about making sure you know what it is.

P.S. - It's a big Judge Van Dyke day today.  The Ninth Circuit published opinions in three cases, and Judge Van Dyke writes opinions in all three of 'em:  he authors two dissents -- this one, and one in a sex discrimination case -- and the panel opinion in the other (an immigration case).  As you might suspect, Judge Van Dyke finds against the plaintiff/petitioner in each of these opinions.

Thursday, March 11, 2021

Akella v. Regents of UC (Cal. Ct. App. - March 11, 2021)

Sometimes you get into litigation through no substantial fault of your own.  Someone hits you with a car (or you hit them).  You get sexually harassed or laid off at work.  Things like that.  You end up in court and you have to deal with the hand that you got dealt.

Whereas sometimes, like here, you're your own worst enemy.

Ramakrishna Akella is a professor at UC Santa Cruz.  It's a relatively cushy job -- as entirely fits that typically laid-back institution (and occupation in general).  The normal teaching load for professors is ostensibly five "classes" a year.  But, in reality, it's only three:  you've got to teach three "podium" (i.e., actual) classes, and the other two classes entail "advising, mentoring, research supervision, and training activities associated with our graduate and undergraduate programs."  So basically during research or any other professor-like things (e.g., "academic mentoring and advising of graduate and undergraduate students, teaching assistant training and mentoring, curriculum maintenance and revision, and advertising and outreach for the department").

Now, normally, basically anything counts for those two additional "classes" -- or at least anything that your department chair decides counts.  But Professor Akella's department chair basically thinks that he's deadwood, so decides that Akella needs to teach four actual classes instead of three.  That'll make up for Akella's alleged failure to have any "undergraduate advising or curricular leadership roles" and purported "'catastrophic' record on graduate advising and graduate curricular leadership."

One can adopt such a strategy for good reasons or for bad ones.  Sometimes, a faculty member is indeed just going through the motions on research etc. and hence perhaps legitimately assigned other work in order to even out the various professorial burdens.  (Mind you, sometimes faculty members are similarly going through the motions on their teaching duties, and that rarely gets the faculty member in trouble.  Sadly.)  By contrast, sometimes, it's not that the faculty member isn't doing anything extra, but is instead that that the department chair (or Dean) doesn't like or appreciate the qualities of those extras -- or simply doesn't personally like the underlying faculty member -- and so assigns extra workload in an effort to harass the person and/or get them to quit (or leave).  Ditto for assigning tough courses, inconvenient dates and times for classes, etc.

For whatever reason, Professor Akella's not having it.  He's assigned four classes, but says he's only going to teach three.  Period.  (Actually, he "buys out" a class, so only has to teach three, but says he's only going to teach the two.)  His theory being that the department chair doesn't have the authority to add an extra podium class to a professor's workload.

So when 80 students show up for the class the department chair scheduled, Prof. Akella doesn't show up, and the University scrambles to get a replacement.  In response, the University imposes discipline for Professor Akella's failure to appear; he gets a 15% reduction in pay for the next year, plus a letter of censure in his file.  Which, in the scheme of things, isn't all that serious of a penalty, IMHO.

But Professor Akella files a petition for mandate, claiming that the extra class wasn't allowed.  And the trial court agrees.

The Court of Appeal reverses.  The opinion describes in exhaustive detail the underlying policies, and decides that, yeah, the department chairs can indeed add an extra "real" class to the teaching load if the professor isn't doing sufficient other stuff.

Okay.  Fair enough.  The issue is a clearly a relatively close one, if only as evidenced by the fact that the trial and appellate courts disagreed.  It's a fair amount of litigation for a fight that's merely about whether a professor has to teach an extra class once a year, but okay, let's put the whole thing down to principle and the need to get a final ruling.  Maybe that justifies all the costs and attorney's fees that everyone's spending on the thing.

So after reading the opinion, I wanted to find out how Professor Akella is doing these days.  So I consulted Mr. Google.

At which point I discover that although the opinion (understandably) doesn't mention it, Prof. Akella ultimately did even worse for himself.  His department at the University was subsequently abolished, and while other departments absorbed pretty much all the professors, none of 'em wanted Akella.  So he got assigned to a Dean for his course assignments, and Prof. Akella insisted -- sort of similar to what he said in today's opinion -- that if there's no department, there's no department chair to assign him to teach any classes, so he doesn't have to teach any.

At which point the University revoked his tenure and fired him.  One of only two professors at UCSC to have ever had their tenure revoked.

A little backstory on professorial relations.

Wednesday, March 10, 2021

Karton v. Ari Design & Construction (Cal. Ct. App. - March 9, 2021)

There's nothing published from the California appellate courts or the Ninth Circuit today, so I thought I'd mention this opinion from yesterday, if only briefly.

It's really just a vehicle through which Justice Wiley can make a point.  A point that's surely valid, but one that Justice Wiley is particularly keen to make.  So does.  At some length.

The appeal comes out exactly how every objective observer in the universe would expect.  David Karton hires a contractor to do some extensive construction work on his home -- over $150,000 worth.  After about five months of daily work, the parties start fighting.  Karton's paid 'em about $100,000 at that point, and everyone admits that the contractor hadn't yet done $100,000 worth of work at the point at which it was fired.  The contractor figures that Karton's owed around $13,000, but Karton thinks he's owed more like $35,000.  AS the Court of Appeal notes:  "No witness impugned the quality of [the contractor's] work."  It's just a fight about how much was work was finished at the time the contract was terminated.

So Karton sues.

At trial, Karton ends up being right, so the contractor's got to pay back the $35,000 owed.  But Karton also proves at trial that the contractor wasn't properly licensed.  And we're super harsh on that.  As Justice Wiley notes:  "Section 7031, subdivision (b), of the Business and Professions Code, [] entitles those using an unlicensed contractor to all compensation they paid the unlicensed contractor, even if they knew the contractor was unlicensed. This statute requires an unlicensed contractor to return all compensation it received, without reductions or offsets for the value of materials or services it provided. This statute can create a windfall for those hiring an unlicensed contractor that has done quality work. Courts may not resort to equitable considerations when applying this statute, however, for the law aims to create a harsh penalty to induce contractors to maintain proper licensure."

So Karton does indeed receive his windfall; he gets the entire amount he paid the contractor back (roughly $100,000), plus he gets another bonus -- an additional "$10,000 penalty under Code of Civil Procedure section 1029.8. [S]ection 1029.8 provides for treble damages and attorney fees against “[a]ny unlicensed person” whose work injures another person. This statute caps the permissible treble damages award at $10,000. (Id., subds. (a) & (c).) This treble damage provision, albeit capped, is an additional noncompensatory damage provision that created a further windfall for the Kartons."

So Karton gets a little over $100,000, plus he gets to retain all the quality work the contractor did.  He also gets to ask for his attorney's fees, which (of course) he does.  He demands over a quarter million dollars of fees.  But the trial court says, essentially:  "No way.  This was a simple case.  You massively overlitigated the thing.  I'm giving you 200 hours at $450/hour, for a total of $90,000."  (Actual quotes from the trial judge:  "The court observed the Kartons had gone 'so far beyond what was necessary on this matter.' The court concluded, 'I cannot say that anything like $270,000 requested in this case is reasonable.' The $270,000 fee request was 'excessive by a lot.'” )

So Karton files an appeal, claiming that the trial court was required to give him more money.

That appeal comes out exactly how you'd expect.  It's an abuse of discretion standard, and there's absolutely no such abuse here.  Justice Wiley lists a plethora of reasons why the trial court rightly could (and did) discount the fee award to $90,000.  All of which are totally right.  So Karton loses.  (Though he wins on an ancillary point about the contractor's surety also being liable for the reduced fee award.)

It's an otherwise routine case about a party who massively overlitigated the case below and so gets a reduced fee award.  Nothing really special or otherwise remarkable about it.  They're a dime a dozen.

But one of the reasons that trial court gave for reducing the award was its observation that the over-litigation was, in part, a byproduct of Mr. Karton's personal and excessive involvement in the case.  Because, you see, Mr. Karton is an attorney in Beverly Hills.  And he decided to litigate against his former contractor . . . aggressively.  As Justice Wiley explains in his opinion:

"The trial court commented on the Kartons’ lack of civility in their briefing. “The briefing filed by [the Kartons’] counsel was replete with attacks on defense counsel such as that defense counsel filed ‘knowingly false claims of witness tampering,’ ‘her comments were frivolous,’ something was ‘typical of the improper tactics employed by defendants and their counsel’. [¶] It was really offensive to me, the attacks made in this case.”  (Plus, during oral argument, "The court asked Karton, “Can you not interrupt me. I would appreciate your letting me finish my sentence.”  Never a good sign.)

That's an issue that Justice Wiley wants to talk about.  And does so at length.  Remarking -- again, rightly -- the a lack of civility, and resulting overlitigation, can indeed be the basis for reducing a fee award.

Now, to me, the thing that justifies the reduction is the overlitigation, not the incivility.  But, sure, the two often go hand in hand, so it's worth making that point.

The lesson being:  Don't be a jerk.  Or at least an obvious jerk.  Or at least an obvious jerk in a case in which you've already received a huge windfall.  Because pigs get fat, whereas hogs get slaughtered -- and uncivil hogs even more so.

Tuesday, March 09, 2021

People v. Harawa (Cal. Ct. App. - March 9, 2021)

You own a liquor store.  There's another liquor store across the street.  Your competitor lowers the prices it charges for beer.  What should you do?

The correct answer, according to the defendant here, is:

Hire someone to burn down your competitor.

It's a story of repeated incompetence.  The would-be arsonists try to burn the place down four different times, failing (miserably) each time.

Defendant gets convicted and sentenced to nearly a dozen years in prison.  The Court of Appeal affirms.

Next time, maybe lower your own prices.  Free market > arson.

Thursday, March 04, 2021

Anderson v. Edward Jones & Co. (9th Cir. - March 4, 2021)

Some background first.

There are two types of investors.  One type are people who own stocks and hold 'em forever, and trade very little.  My mother's like this.  (So am I, mostly.)

Then there are people who trade more frequently; from the "every month or so" to daytraders and the like.

There are also two types of fee structures for brokerage accounts.  One type of account -- the "usual" (in my experience) -- just charges commissions every time you trade.  The other type of account charges a set amount -- for example, 1% of the value of your account -- every year.

The "commission" arrangement is clearly better for the buy-and-hold/rarely trade crowd.  Whereas the alternative might be better for the frequent trader.

But the brokerage house itself obviously has a different interest.  They'd love to charge mom-and-pop, buy-and-hold investors the annual one percent (or more) fee structure if they could.

Recognizing this conflict of interest, FINRA has a rule:  “Broker-dealers must ensure that fee-based accounts are only recommended to those clients for whom they are suitable; as such accounts tend to be more expensive for clients who engage in little to no trading activity.”

With that backdrop, here's the lawsuit.

Plaintiff files a putative class action that says that Edward D. Jones & Co. manipulates mom-and-pop investors into switching to "annual fee" accounts even though such a structure is clearly unsuitable.  My guess is that Plaintiff's correct that, yep, that occurs.  The trial court dismisses the lawsuit with prejudice, holding that the Securities Litigation Uniform Standards Act -- SLUSA -- preempts the state law claims.  SLUSA bars state law fiduciary duty claims if those claims are “in connection with the purchase or sale of a covered security.”  The district court held they were.

The Ninth Circuit reverses.

I won't claim to be the world's greatest expert on SLUSA.  But I am glad the case comes out this way.  If Edward Jones in fact did what they're alleged to have done, I hope they get spanked.

Wednesday, March 03, 2021

People v. Cummings (Cal. Ct. App. - March 3, 2021)

When one looks at published opinions from afar -- i.e., without access to the whole record -- sometimes you're at a disadvantage.  A perfect example is from this opinion today.

One of the questions (at the end) is whether the defendant was properly ordered to pay the costs of her appointed counsel.  The Court of Appeal holds that the issue was forfeited because counsel made a tactical decision not to object to these costs.  But the panel also reads the record to only impose $1525 of such costs, even though the written judgment was for over $15,000 -- which, it says, was probably why defense counsel decided not to object.  So it corrects the judgment.

But I can't help but wonder if that's actually what went down below.

There's no probation report, but the minute order clearly says that the defendant has to pay costs of $15,025.  Moreover, as the Court of Appeal notes, "at the end of the specific conditions of probation, the following handwritten notation appears: “attys fees $15,025.00 thru DRR.”  The Court of Appeal says (correctly) that "[t]he record does not indicate where the sum of $15,025 came from," but presumably it came from the clerk or the judge, right?

So it seems like the lower court wanted to impose $15,000+.

But here's the part of the transcript that the Court of Appeal holds requires correction of the cost award to around $1500:

"As part of the conditions of probation the court stated: 'I will order you to pay the cost of your attorney services which is pretrial disposition it says limited investigation motions let’s make this $1525.'"

Okay.  That might be right.  The Court of Appeal says:  "It may very well be that defendant did not object because the trial court ordered payment of $1525 instead of $15,025, an apparent discount. Indeed, we read the record, such as it is, and the court’s comment – “let’s make this $1525” -- as indicating the court intended to reduce the costs to 10 percent of the stated amount."

Put to one side that it's not actually ten percent:  that'd be $1502.50, not $1525.  (A court that wanted to make an award of ten percent would probably just round the $15,025 principal it to an even $1500.)

But let's assume that (1) the trial court made something like a math error, and (2) the Court of Appeal was just speaking loosely when it said "ten percent."  There's tons even just in the Court of Appeal's own opinion to suspect that the fault here is the court reporter's -- that s/he left off a "0" when s/he transcribed the oral pronouncement (of $15,025) as "$1525".

Let's just take, for example, the two sentences that the court reporter transcribed occurring immediately after the $1525/$15,025 number.  Those get transcribed (in the Court of Appeal's opinion) as:  "You can . . . talk to the Department of Revenue Recovery about a payment schedule for that. If it turns out that you are satisfied [sic] with that schedule, you have the right to return here.”  The Court of Appeal adds that "[sic]" -- again, correctly -- because I'm confident the trial judge actually said "unsatisfied."  Add to that to an earlier transcription that read (as described in today's opinion):  "The People also look to Mitchell v[.] California Department of Corrections and Rehabilitation at 2011, US District Lexus 112916."  That's a minor error, to be sure, but, yeah, I bet the trial judge didn't actually say "Lexus."  (Let's hope, anyway.)

The point is simply that it's quite conceivable that the oral pronouncement was actually $15,025 but that the court reporter wrote it down wrong -- but that this number was written down correctly both in the handwritten notes as well as in the judgment.  As opposed to the (admittedly possible) "ten percent discount" hypothesized by the Court of Appeal.

So maybe Justice Murray gets this right, but maybe he gets it wrong.  Depends on how you read the record -- and how much you trust the stenographer/record.

Tuesday, March 02, 2021

Holistic Supplements v. Stark (Cal. Ct. App. - March 2, 2021)

On one side of this litigation you've got Brad Barnes.  Mr. Barnes opens a marijuana shop in 2005.  The business is run by an LLC, but for "legal reasons" Barnes doesn't want his name on the business.  In part because he "also owned a strip club, a bar, and an adult entertainment store in the same shopping center" as the marijuana business and didn't want anything illegal about the pot shop potentially tainting his other (more wholesome) enterprises.

So he gets David Gold to be the only one on the LLC, with Gold getting 10% of the profits in return for use of his name (and Barnes running the place and getting the remainder).

But then Gold gets tired of working with Barnes, plus the shop was raided by police in 2011 and Gold becomes worried about maybe getting arrested.  As a result, in 2014, Gold transfers the "name" on the LLC (the one shielding Barnes) to Christopher Stark, the other side of the present litigation.  Stark is a friend of Barnes and works at the strip club.  The arrangement is the same:  Stark's name is the only one on the business, and in return, he gets 10%, but Barnes runs the show and gets the 90%.

But in 2015, Stark gets tired of working with Barnes too.  So, allegedly, Stark tells Barnes' ex-wife, Jamie Kersey, that he too wants out.  So in 2015, there's a meeting between Barnes and Stark (on that, everyone agrees), and present at the meeting is the pot shop's corporate attorney, Robert Manuwal.  According to Barnes, Kersey and the attorney, at the meeting, the "name" transferred yet again:  Stark signs papers that transfers the LLC to Kersey.  There's a document with his signature on it.

But Stark testifies he was just signing checks and whatnot; that he didn't actually transfer the business, and that his signature was forged.

Which is against the weight of the testimony, it seems to me.  Plus conflicts with the fairly compelling facts that "[a]fter that night, Stark had no further involvement in the dispensary operations at the Canoga Park location. He never returned to pick up any assets, cash, marijuana product, or equipment. The day after the alleged transfer, Kersey met with dispensary employees to tell them about the change in ownership. Dispensary operations continued as normal."

But Stark had other plans. "Unbeknownst to Kersey and Barnes, Stark did not relinquish his ownership of the LLC. On September 2, 2015, he filed “Articles of Incorporation With Statement of Conversion” with the Secretary of State. The form listed Stark as the managing member of the LLC and purported to convert the LLC to Holistic Supplements, Inc., a corporation with Stark as the sole shareholder. The document listed Stark’s home address as the business address for the corporation."

Hence the resulting fight between Barnes (via his ex-wife, Kersey) and Stark about who really owns the business.

Stark wins below.  The Court of Appeal reverses.  In a battle between the strip club owner with various people fronting for him versus the strip club employee frontman for ownership of a marijuana shop that no one particularly wanted until after marijuana became legal.

We'll see who wins on remand for control of the Canoga Park marijuana business.

Monday, March 01, 2021

In re Anderson (9th Cir. - March 1, 2021)

At some level, I appreciate it when the Ninth Circuit adopts -- as here -- the opinion below as its own precedent.  That shows a lot of respect for the lower court, which is nice.  Plus, as an added bonus, it couldn't be easier.  Gets an opinion off your plate with an absolute minimum of work.

But it's also always seemed to me simultaneously disrespectful to the litigants, especially the losing party.  Appellant spent a fair piece of money hiring a lawyer to file and prosecute an appeal, and the attorney in turn devoted substantial efforts to arguing that the lower court got it wrong.  For example, here, appellant writes a 30-page opening brief and a 15-page reply.  Those briefs directly challenge the reasoning of the lower court and explain why it's (allegedly) wrong.

It just seems somewhat insulting to not respond to any of these arguments at all in the opinion and simply incorporate the lower court opinion as your own.  I get that there's no oobligation to respond.  But for the losing side, I suspect you feel like you weren't really even heard.  Similar to an oral argument at which the judges don't ask any questions at all and passively sit there and listen, and then rule against you without any explanation at all.  Just seems wrong to me at some level.

Yes, I know that memorandum dispositions are like that sometimes as well; two- or three-sentence dispositions that don't actually explain anything at all, and simply state conclusions.  But I have similar reactions to them as well.  Sure, the Ninth Circuit's workload is substantial.  But you probably wrote a bench memorandum anyway that explains things, including but not limited to the arguments that appellant makes and why they're wrong.  Why not just cut-and-paste what's there?  Doesn't take much time, and gives the litigants at least the illusion that you put in some effort.

Personal style, I know.  I clerked for a judge who occasionally just incorporated the lower court's opinion.  Didn't really like it then, and haven't really changed my feelings much over time.