Thursday, April 29, 2021

People v. McInnis (Cal. Ct. App. - April 29, 2021)

I'm generally not a huge fan of LWOP (life without parole) sentences.  Particularly for younger offenders.  There's too much of a chance that after two or three decades in prison, they'll have changed and be worthy of a life outside.

That said, after reading this afternoon's opinion by Justice Miller, my overall reaction was:  "I'm glad this guy won't be on the street anymore."  He's 28.  He forcibly raped a 15-year old girl walking to school -- and maybe tried to rape and 18-year old UC Berkeley student (the jury deadlocked 11-1 in favor of guilt on the alleged crimes regarding her).  Plus he's got a long rap sheet.

When you read even more about his alleged crimes, my basic response was:  Yeah, that's a bad guy.  High Desert State Prison -- where he's currently incarcerated -- seems about the right place for him.

People v. Powell (Cal. Ct. App. - April 28, 2021)

This opinion by Justice Murray is eminently notable for a variety of non-substantive reasons.

First, it's incredibly long.  I mean:  LONG.  It's not just that it tops out at 95 (!) pages.  But it's also intensely detailed and -- with respect -- a bit plodding.  The statement of facts alone consists of over 25 pages of text; longer than the entirety of most opinions.  When you're done with that, you've only got 70 or so pages of legal and factual analysis to slog through.  Whew.

Second, Justice Murray refers to many of the individuals in the case by their initials.  So throughout the 90+ pages of text you've got to keep from mixing up J.P., J,D., J.S., T.B., S.H., and T.G. (plus anyone else whose initials I can't happen to recall right now), as well as all the other various named participants.  (It doesn't help that lots of the main players in the opinion have initials that begin with "J.")  To take but one example from the opinion, here's one representative paragraph:  "Thereafter, Langlois, Powell, J.D., J.P., and T.B. left the Papaya Drive house in T.B.’s Volkswagen bug. T.B. was driving, J.D. was in the front passenger seat, and Powell, J.P., and Langlois were in the back seat. J.D. told T.B. where to go."

That's a lot of initials for any opinion.  Particularly a 95-pager.

I get why Justice Murray does this. California Rule of Court 8.90 asks courts to "consider" using initials (or first names and last initials) for victims in criminal proceedings, and the California Supreme Court and Style Manual make similar suggestions for minors and victims of sex crimes.  But this isn't a sex crimes case, and for lots of the victims here, I'm not sure it really matters if they're named.  At the very least, I'd have used first names and initials to try to make things clearer, particularly given the length.  This might be a good example of an opinion in which the best of intentions ends up going overboard, and at the expense of readability.

Third, Justice Murray does something with one of the initials that I think I've seen before, but that's undoubtedly rare.  One of the initials -- "J.D." -- is made up.  It stands for "John Doe."  That's not the person's name (or initials), but Justice Murray explains that he's using those initials because "Doe" took a plea deal and testified for the prosecution, and is now incarcerated.  In short, he's a snitch, and Justice Murray is worried that referring to him by his name might potentially result in harm to him in prison.

Okay, I get it.  Again:  Great intentions, no doubt.  But I'm not really sure that using his actual initials would have ratted the guy out; they're not unusual (e.g.,, "X.Z.") or anything.  Or, at a minimum, if we are calling the guy Doe, maybe just call him "Doe" rather than "J.D." -- particularly given all the other "J." initial people in the opinion.  I get the "consistency" point, but this one cries out for an exception.

Plus, honestly, I don't really think there's really much utility here.  This was a murder case, and one that was reported in the press a fair bit.  (The murderers accidently killed the wrong guy, so it was one that's a bit memorable, even if not particularly high profile.)  Anyone who cared even in the slightest could easily find out the real name of "J.D." in about ten seconds from any of the numerous published press stories about the murder and/or prosecution.  So, yes, "J.D." will be in prison until at least 2037, and we don't want extrajudicial "justice" dispensed therein.  But I'm not sure we're really accomplishing much by calling him a "Doe" and adding yet more initials to the puzzle.

Finally, particularly given all the dizzying array of initials (alongside the full names of a huge number of participants), I found one decision by Justice Murray to be fairly unsupportable.  It's a murder case, which means (by definition) that someone was killed.  Yet Justice Murray doesn't mention the victim's name even once.  Or even use initials.  He's simply referred to as "the victim".  Period.  A reference that appears over a hundred times in the opinion.

That's not right, IMHO.  The victim is dead.  He's not going to be harmed by mention of his name.  If anything, his name deserves mention, because he's a person, and he's gone.  So no initials.  Full name.  Out of respect for the dead.  

And that's not just my rule, either.  The California Supreme Court has issued a clear policy statement to the appellate courts that "Anonymity . . . is inappropriate for homicide victims, who are to be identified whenever possible."  Even before this -- as one of my astute readers once wrote to me -- "[t]he ironclad rule forever was that murder victims must be named in court opinions, if for no other reason than to give them dignity."  

True that.

The victim's name was Jack Swaim.  I understand why Justice Murray leaves it out, since the opinion repeatedly refers to the victim's son as "J.S." -- so if you know the victim's name is Jack Swaim, you know that the "S" stands for "Swaim" and can probably figure out that his son Jimmy is the "J.S." in the opinion in short order if that's what you're looking for.  (Plus, if you refer to the victim as "J.S.", then there are two J.S.'s in the opinion, which is even more confusing than the thing is already.  Following Justice Murray's reasoning, maybe you could then refer to the son as "John Roe" and use "J.R." or something, but see how crazy this is getting?)

But, again, while I understand the intent, if it's me, I'm definitely naming the victim.  As I do in this post.  It's more readable that way as well as infinitely less impersonal.  Mr. Swaim's last words appear in the opinion; so should his name.

Monday, April 26, 2021

Loomis v. (Cal. Ct. App. - April 26, 2021)

It's nice when the Court of Appeal includes a helpful summary of the holding at the outset.  As Judge Ohta -- from Los Angeles, and sitting on the Court of Appeal by designation -- does today.  He says:

"Kisha Loomis brought suit against LLC (Amazon) for injuries she suffered from an allegedly defective hoverboard. The hoverboard was sold by a third party seller named TurnUpUp through the Amazon website. The trial court granted summary judgment in favor of Amazon. The primary issue on appeal is whether Amazon may be held strictly liable for Loomis’s injuries from the defective product. Recently, the Fourth District addressed this issue as a matter of first impression in Bolger v., LLC (2020) 53 Cal.App.5th 431 (Bolger), review denied November 18, 2020. Bolger held Amazon “is an ‘integral part of the overall producing and marketing enterprise that should bear the cost of injuries resulting from defective products.’ ” (Id. at p. 453.) Our own review of California law on strict products liability persuades us that Bolger was correctly decided and that strict liability may attach under the circumstances of this case. We reverse and remand with directions."

That's indeed a robust description of what the opinion holds.  Don't need to add much more to understand the Court of Appeal's holding.

One that's important both practically -- for those who've purchased things from Amazon (which is almost everyone) -- as well as doctrinally.

Justice Wiley writes a concurring opinion that basically consists of a brief overview of the history of strict liability in California and an explication of why imposing such liability makes sense from a cost-benefit standpoint.  Justice Wiley wasn't a torts scholar when he taught at UCLA, but his analysis reminded me a ton of my first-year torts class in law school.  It was super heavy on theory.  Professor Rosenberg said in my class lots of the same things that Justice Wiley says in his concurrence.  So a walk down memory lane for me.

Friday, April 23, 2021

In re Marriage of Maher and Strawn (Cal. Ct. App. - April 22, 2021)

Imagine that you're an attorney in San Diego.  (As some readers undoubtedly are.)  You've been married for 18 years, but your marriage has ended.

You lived fairly well when you were married.  Your spouse has a PhD and has a job with a pharmaceutical company.  She makes a fair chunk of change:  $28,000 per month (over $335,000/year).  You're no slouch yourself, and was making $100,000-$200,000 as a lawyer.  During the marriage, you and your spouse "lived in a $1.8 million, 4,500 square foot home, took expensive vacations, and spent about $8,000 per month on credit cards which they monthly paid in full [and] amassed a 420 bottle wine collection."  One time, you guys spent $20,000 for a one-week Maui vacation at the Four Seasons.  Life was good.

But now, you're divorced.  And you're sort of bitter at the amount of spousal support you received in the trial court.  You were only awarded $4,000/month -- around $50,000/year -- and even that amount steps down to $3,500/month in May 2021 and then to $2,500/month in May 2022.  You're 60 years old at this point.

Sure, you want more.  And you're an attorney, after all.  Why not file an appeal?

Maybe because the opinion might be published.  With your full name contained therein.  As well as each of the following facts about you:

"David has sleep apnea, insomnia, post-traumatic stress disorder (PTSD), anxiety, and severe depression. He testified that crowds, traffic, and noise make him nervous, afraid, and exacerbate his anxiety and PTSD. He remains mostly alone in his apartment and has to 'force' himself to socialize. Yet on cross-examination, David admitted traveling to Las Vegas in 2018 where he attended an indoor rock concert. He also attended 'a few concerts' at the Del Mar fair with a 'social group' and at the House of Blues.

David takes Valium “a couple times a day,” along with antidepressants, anti-anxiety drugs, and hydrocodone—an opioid. He also drinks “three to four” glasses of wine nightly, although he denies having a “drinking problem.” David could not “recall” whether any physician told him to not mix alcohol with his medications. He spends about $600 per month on wine— three times his child support obligation. . . . 

Still, David has worked occasionally as a track and field coach, which he enjoys. In 2018, for example, he earned about $1,000 as a high school track coach and was named “field coach of the year.” He is certified to coach through the college level. In 2017 David obtained a substitute teaching certificate, but he never sought those jobs because he does not awaken until noon (due to his sleep disorder). He is unwilling to work tutoring grade school or high school students, stating he has “patience issues.” . . .

The parties separated in 2016. The triggering event was when David (who is six feet, three inches tall, and weighs about 300 pounds) punched Laurie in the face and slapped her during intercourse. Her nose bled 'all over the bed.' The next day, he assaulted their son (then 17 years old). Both David and the son sustained injuries in the ensuing fist fight. Laurie told responding police officers, 'My nose still hurts, and I think it might be broken. Today he was worse than usual.' Despite David’s testimony at trial denying that he ever hit Laurie, in September 2016 the court issued a domestic violence restraining order against him. . . .

[B]eginning in 2005, the family home became in Laurie’s words, a “hovel” and “squalid.” They lived on bare cement floor after a flood ruined hardwood flooring and bedroom carpet. Laurie testified that “it really became bad once [David] started shopping obsessively online and just piling things up all over the house.” According to Laurie, in addition to leaking toilets and no flooring, three of four showers were not functioning, the pool was a “swamp,” and the home needed $70,000 in repairs to make it livable before it could be sold. 

After separation, David moved to a 1,200 square foot apartment that he rents for $2,800 per month. The garbage disposal, microwave, shower, and refrigerator are inoperable. David has not asked the landlord to repair the appliances because he continues to live in squalor and is embarrassed to have anyone inside his apartment."

You couldn't pay me enough to risk having details like that contained in a published opinion.  What the trial court said was bad enough.  But at least that was unpublished.  Having everyone and their neighbor read the sordid details of one's downfall and life would, for me, be a burden far too great to bear.

(Here's what the trial court said:  "“It is difficult to put a word to the parties’ marital standard of living—appalling comes close. They lived in a filthy refuse strewn home with each evening dedicated to drinking a bottle of wine each. ([Laurie] testified [David] would not allow her to clean the house while he was home, and he seldom left.) The court rarely casts marital standard of living in terms of spendable income; it is particularly inappropriate here . . . .” [¶] . . . [¶] “The court is not confined to choosing upper, middle or lower, none of which describe the parties’ living conditions. At [date of separation], [David] was living in a squalid house strewn with garbage, refuse, discarded items left to sit where they dropped and rooms filled with empty cardboard boxes from his online shopping . . . . He has maintained that same standard of living.” [¶] . . . [¶] “None of [David’s] evidence supported his claim he needed over $15,000/month to meet the marital standard of living. Given the condition of his apartment . . . and the condition of the parties’ home at [date of separation], he is presently maintaining nearly the marital standard of living by living in squalor, drinking a bottle of wine each day and eating fast food.”)

Justice Dato also gets in some shots as well.  Including a funny little reference to Sin City, saying: "[T]he trial court was entitled to, and did view with skepticism David’s claimed inability to work. For example, David claimed that crowds and noise trigger his PTSD and crippling anxiety. But David flew from a presumably busy airport to Las Vegas, a town not known for monastic solitude."  

"Monastic solitude" indeed.

There was one portion of the opinion the merits of which I was uncertain.  Justice Dato at one point says:  "There is also substantial evidence that David has the opportunity to work. In 2017 David passed the test necessary to work as a substitute public school teacher. A vocational expert testified that an entry level teaching job pays about $58,000 per year. There is a strong demand for math and science teachers. David would be “highly competitive” for a teaching position because he has experience working with high school students and holds a Ph.D. in biochemistry. Although David would have to spend a year to obtain a teaching credential, in the interim he could work as a substitute teacher (earning about $125 per day), for which there is a current demand."

Uh, yeah, maybe.  But I'm not so sure there are a ton of schools that'd be thrilled to hire a 60-year old former lawyer with a domestic violence restraining order who routinely pounds alcohol alongside opoids and who sleeps until noon every day.  Those facts -- in a published opinion, no less -- might give potential employers pause, no?  Generalized "current demand" or not.

You learn all this, and more, about (currently inactive) San Diego attorney David Maher from Justice Dato's opinion.  A woeful tale, indeed.

Tuesday, April 20, 2021

People v. Braden (Cal. Ct. App. - April 20, 2021)

The California Supreme Court should obviously grant review of this opinion.

It's not that Justice Raphael's opinion is necessarily wrong.  It's not.  He holds that if a defendant wants to request pretrial mental health diversion, she's got to do so before the trial starts, not (as here) after the verdict but prior to sentencing.  Otherwise, he says, defendants could "game" the system by only asking for diversion after trying their hand at an acquittal.

Maybe that's right.  It certainly does waste some time to have a trial if we're just going to grant diversion anyway and dismiss the case.

But maybe it's wrong.  Maybe it's just like like imposing a suspended sentence.  And, in any event, maybe we're okay with defendants saying that they're innocent -- say, asserting that they didn't have the required means rea for the offense -- but also saying that, if they're guilty, it's nonetheless due to their mental health problems and hence qualify for diversion.

Regardless, a prior opinion of the Court of Appeal held that pretrial diversion could be requested after trial, and today's opinion says it can't.  That's a straightforward conflict, and on an issue that recurs in innumerable cases.  So the California Supreme Court has to figure out the right rule.

As soon as possible. 

Monday, April 19, 2021

Seachris v. Brady-Hamilton Stevedore Co. (9th Cir. - April 19, 2021)

Usually, the best way to get something is to ask for it.  At least in a legal setting.

But on rare occasions, the subtle strategy of letting the tribunal come up with its own remedy works like a charm.  As it does here.

Petitioner wants more attorney's fees than the ALJ granted her, so files an appeal.  The Ninth Circuit decides that, yes, the ALJ made a couple of legal errors in reducing the fee award, so remands the case.

Nothing especially unusual about that.

Normally, the case would then go back to the same ALJ.  And Petitioner didn't request otherwise.

But the Ninth Circuit's having none of it.  Judge Tashima and the panel decide, sua sponte, to order reassignment to a new ALJ on remand.  On the theory that the history of the litigation establishes that the current ALJ "may not be able to provide [Petitioner] with a fair and impartial hearing on remand."

Reassignment is an extraordinary remedy.  Reassignment sua sponte adds yet another exceptional act as well.

Mind you, there may be a reason why the Ninth Circuit reaches out the way it does.  The panel seems to be more than a little bit miffed that the ALJ didn't take kindly to being reversed by the Ninth Circuit in an earlier stage of the litigation, and thus entered a series of orders that the Ninth Circuit thought questioned the decision on appeal.  The panel was having none of that.  Hence the reassignment.

Basically a little slapdown of the ALJ to remind her who's boss.

Wednesday, April 14, 2021

Wexler v. FAIR (Cal. Ct. App. - April 14, 2021)

The majority and the dissent ostensibly disagree vigorously in this case.  But I'm not really certain they do.  Or at least don't think they disagree in the fundamental way alleged.

Here's how Justice Stratton's dissent puts it.  A characterization that's not absurd -- though, as I'll note in a second, perhaps isn't entirely accurate either:

"Everyone check your homeowners insurance policy. Be especially vigilant if you live in the quarter of California households which are multigenerational, or are one of the 40 percent of California parents whose adult children have moved back home. Those other adults in your household have probably accumulated personal property of their own. According to the majority, if you, as the homeowner and a named policyholder, try to protect your family members by paying a premium for a policy that purports to provide coverage for the personal property of resident family members, you are benefitting the insurance company, not your family members. If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property. Your family member will not be able to recover because the insurance company, which did not request or require you to identify the family member by name, will be able to deny coverage because you did not identify the family member by name. The insurance company gets to keep your premiums, which is a pretty sweet deal for the insurer but not for you or your family member."

The part that's undoubtedly true about what Justice Stratton says is that under the majority's opinion, the other adults have no standing to sue under your insurance policy.  That's squarely the holding, and results in the dismissal of the adult child's claim in the present case.

But the part of Justice Stratton's dissent that seems fairly clearly false -- at least to me -- is the critical part in which she says:  "If your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  As I read the majority opinion, that's wrong.  The parents can, indeed, sue, and then (if they want) give the money to the adult children whose property was damaged.  Sure, Justice Wiley's opinion isn't nearly as clear as I would have it be on this point, and you have to slog through a lot of history and tangential analysis to get to the ultimate practical reality.  But Justice Wiley says:  "This fundamental understanding of the insurable interest doctrine makes it plain the Talbots had an insurable interest in Wexler’s property stored in their house while Wexler lived there with them."  Which means that the parents are indeed allowed to recover for whatever property of their adult kid got damaged, which in turn means that the scenario advanced at the outset of Justice Stratton's dissent doesn't actually exist.

Moreover, it seems like Justice Stratton may well know that this is the case.  Remember:  She starts her dissent with the claim that under the majority's opinion, "[i]f your family member’s personal property is damaged, you will not be able to recover for that damage because you do not have an ownership interest in that property."  But, as I've suggested above, that's not actually true, and later in the dissent, Justice Stratton says:  "The majority is unconcerned with Wexler’s inability to assert her own interests because it mistakenly believes that the Talbots can recover on behalf of Wexler."  She then goes on to explain that, in her view, the parents can't recover on behalf of their child because the parents don't have an "insurable interest" in their adult child's property.  (Arguing that "[t]here is nothing in the FAC to support the majority’s belief that Wexler’s personal property is 'family property' and so the Talbots can recover for its loss. To analyze around the concept of insurable interest is not only strained, but it ignores a keystone of California insurance law.")

The problem with Justice Stratton's analysis, however, is that the majority opinion expressly holds that the parents have an insurable interest in the child's property.  Hence can sue.  So it's not -- as a practical matter -- that the parents "will not be able to sue" for the property.  They definitely can.  How do we know that's true?  Because the majority expressly so holds.

What Justice Stratton is really saying is that, in truth, the parents do not have an insurable interest in the child's property.  And without an insurable interest, the parents can't sue.  She might perhaps be right as a doctrinal matter.  But once the Court of Appeal holds -- as it clearly does here -- that the parents have an insurable interest, then the parents can sue.  Period.  Hence obviating the (admittedly) disastrous consequences with which Justice Stratton begins her dissent.

So the real dispute between the majority and the dissent, in my view, is simply over how to achieve doctrinally the result on which they both agree.  Justice Stratton says that the child should be able to directly sue over the destruction of her property, either as a third party beneficiary or through other doctrinal or policy-specific means.  Justice Wiley, by contrast, says that the parents get to sue.  No one disputes that someone gets to sue.  It's simply a fight over which one -- parent or child -- has the right.

Which makes the consequences of today's opinion much less practically significant.  Sure, there might be some instances in which the parent and children are estranged or the like, or there are some other barriers to getting the kid the money from the insurance company for her destroyed property.  But in most cases, the solution's an easy one under majority's holding:  have the parents sue for the damage and give the money to the kid.

Yes, Justice Stratton would be right that this solution doesn't work if -- as she believes -- the parents don't have an insurable interest in the property.  But the majority holds they do.  Hence they do.  And can sue.  Problem solved.

You can get their either Justice Wiley's or Justice Stratton's way -- and, doctrinally, one of those ways might be right (or preferable), but either way, you get there.  Thankfully.

It's unfortunate, I think, that the opinions are written the way they are.  I would have preferred that Justice Stratton not begin her dissent with the ostensible consequences of the majority opinion, both because I think they're unreal and because I fear that some future litigants (e.g., insurance companies) might use that analysis to their advantage in future litigation or settlements.  Similarly, I would have preferred for Justice Wiley to have more clearly and repeatedly said that what Justice Stratton says in her dissent is false:  That, yes, parents can sue.  He says so, and I think clearly.  But, personally, I'd have responded more directly and repeatedly to the dissent.  As majority opinions sometimes do.  If only to make it crystal, crystal clear.

Monday, April 12, 2021

U.S. v. Ghanem (9th Cir. - April 12, 2021)

Here's a very well-reasoned opinion by Danny Boggs, a Reagan appointee (!) who's sitting on the Ninth Circuit by designation from the Sixth.  It's about an arms dealer who's sentenced to 30 years in prison, so the underlying case is a big deal.  Though the opinion is basically about venue -- not exactly the most exciting criminal law topic of all time.

Still, it's definitely worthy of a read.  I wish I could write so well after 35+ years on the bench.

Or even one.

Wednesday, April 07, 2021

Peviani v. Arbors at California Oaks (Cal. Ct. App. - April 6, 2021)

I wouldn't have thought this class action would be certified.  I also wouldn't have thought that the trial court's refusal to certify the thing would be reversed.

Yet reversed it was.

I must say, though, that Justice Miller's opinion is fairly persuasive.  He's not necessarily saying that the class action must be certified.  The Court of Appeal simply holds that the trial court applied the wrong legal standards in places.  And, in retrospect, that's probably right.

Might you, I wouldn't at all be sad to see the class in fact certified.  From what I read in the opinion -- and from the Google reviews of the property -- the apartment complex at issue is indeed a disgusting place to live.  Definitely not a place I'd want to be, nor a place I'd want to have in charge of my security deposit.

Still, I'd have thought that the individual issues would predominate over the class claims.  Yet Justice Miller rightly points out that there are indeed some fairly solid common issues capable of classwide proof; e.g., the condition of the common areas and whether various advertisements were false.  So, yeah, maybe some of the claims in the action can indeed be certified.

We'll see on remand.

Meanwhile, even though the pictures look nice, word on the street -- or at least in the Court of Appeal -- is that you should think twice before necessarily believing that the Arbors at California Oaks are indeed the "luxury apartments" they purport to be.

'Cause it don't sound good.

Monday, April 05, 2021

Lent v. California Coastal Commission (Cal. Ct. App. - April 5, 2021)

Warren Lent and his wife Henny bought an oceanfront property in Malibu in 2002 in which there's a five-foot easement for public access to the beach -- an easement that the Coastal Commission required as a condition of building the underlying residence.  Unfortunately for them, there was a deck and stairway to the beach that blocked half of the easement; plus a gate entirely blocking access to the easement area.

I can't tell from the opinion whether the Lents knew about the easement violation when they bought the property.  Regardless, it's their problem now.  Five years after they bought the property, the Commission asked the Lents to take down the gate and the staircase that were blocking the easement.

At this point, the Lents had two options:  (1) Take down the gate and stairs and find another place to put the stairs to "their" beach, or (2) Tell the Coastal Commission to pound sand.

They chose the latter.

What followed was a lengthy fight over access to the beach.  And I mean lengthy.  The request was made in 2007.  In between then and now, there were letters, administrative hearings, a writ of mandate, and (in the end) today's trip to the Court of Appeal.

The Commission didn't like the Lents' refusal to take down the stairs.  It thought that this was an egregious violation.  So it socked the Lents with a fairly monster-sized penalty:  $4,185,000.

That's a big chunk of change.  At the same time, we're talking about a long time of blocking access to the beach, and in an arguably egregious fashion.  I also suspect that the underlying beachfront residence in Malibu is worth . . . a lot.

The Court of Appeal concluded that what the Commission did was perfectly fine.  So it reinstated the penalty (which had been vacated by the trial court).  So no more gate, no more stairs, and $4.1 million (plus their not-insubstantial attorney's fees) less for the Lents.

That's definitely a big hit.  That said, Warren Hent appears to be a plastic surgeon in Beverly Hills (with the web site "" no less -- and one with an oceanfront Malibu home to boot.  So I suspect that Warren and Henny can pay the fine.

Still.  It's a biggie.

Maybe they should have removed the encroaching deck and gate in the first place, eh?  

Friday, April 02, 2021

Tsasu LLC v. U.S. Bank Trust (Cal. Ct. App. - April 1, 2021)

This looks like a fairly lucrative scheme -- some might say scam, but I know nothing beyond what's in the opinion.  The lawsuit isn't about what the borrower did, and involves instead who's left holding the bag at the end of the whole thing.  But if you're in need of a half million dollars or so, here's apparently one way to go:

"This action deals with a parcel of property located at 9800 South 5th Avenue in Inglewood, California (the property). In February 2007, Cassandra Celestine (Celestine) borrowed $448,000 from CIT Group/Consumer Financing (CIT Group); CIT Group secured its loan with a deed of trust in the property that was recorded on February 28, 2007 (CIT Deed of Trust). Celestine paid the first three monthly payments on the loan, and then stopped making payments.

In early September 2012, CIT Group assigned the CIT Deed of Trust to U.S. Bank, N.A. as trustee on behalf of SASCO Mortgage Loan Trust 2007-RNP1 (SASCO). (Footnote: Prior to this assignment, a false grant deed was recorded that purported to convey the CIT Deed of Trust back to Celestine. Celestine later agreed to set aside the false grant deed.) The assignment was recorded on September 26, 2012. In early June 2014, SASCO assigned the CIT Deed of Trust to DLJ Mortgage Capital, Inc. (DLJ Mortgage). The assignment was recorded on June 13, 2014.

On July 3, 2014, which was less than a month after the assignment to DLJ Mortgage, DLJ Mortgage recorded—and mailed to Celestine—a notice of default setting forth the outstanding balance Celestine owed to DLJ Mortgage and giving her 90 days to pay. Before the 90-day deadline expired, Celestine on September 11, 2014, filed a lawsuit (the Celestine Action). Proceeding as a self-represented litigant, Celestine alleged 12 claims, including a claim under the Act to invalidate the CIT Deed of Trust. She filed a notice of lis pendens regarding her lawsuit on September 23, 2014.

Although SASCO and DLJ Mortgage had recorded their assignment of the CIT Deed of Trust and although Celestine had exchanged letters with the loan servicers reaffirming that SASCO and then DLJ Mortgage had acquired the CIT Deed of Trust from CIT Group, Celestine did not name SASCO or DLJ Mortgage as defendants. Instead, she named only (1) CIT Group, and (2) “All Persons Known & Unknown Claiming Any Legal Or Equitable Right, Title, Estate, Lien, or Interest In The Property Described In The Complaint Adverse To Plaintiff Title Or Any Cloud On Plaintiff Title Thereto.” What is more, Celestine did not properly serve CIT Group with the complaint.

As a result, no one with an interest in the property was ever served with Celestine’s complaint and, consequently, no one ever appeared. On October 29, 2014, Celestine obtained a default. On May 28, 2015, the trial court entered a default judgment quieting title to the property against CIT Group and permanently enjoining CIT Group and its “successors in interest” from “[a]sserting . . . any interest or ownership” in the property, including through the CIT Deed of Trust (2015 Quiet Title Judgment). The 2015 Quiet Title Judgment was recorded on July 22, 2016. On August 4, 2016, the trial court issued an order expunging the CIT Deed of Trust and declaring it to be “Reversed, Cancelled, Set Aside and made Null and Void, Ab Initio, for all purposes” (2016 Expungement Order). The 2016 Expungement order was recorded on August 10, 2016. . . .

On September 2, 2016, Celestine borrowed $285,000 from Tsasu, LLC (Tsasu); Tsasu secured its loan with a deed of trust against the property that was recorded on September 15, 2016 (Tsasu Deed of Trust). . . . Celestine [] stopped making payments to Tsasu."

Sure, the property eventually gets foreclosed upon.  But in the midst of these false deeds and the like, Celestine retains possession of the thing for around a decade, plus gets the $700,000+ in loan proceeds without making virtually any payments at all on the things.

Works out well for her.  The lenders:  Not so much.