Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
You might be an in-house counsel, but if you want to get paid a contingency fee by your employer, just like outside attorneys, you need to get it in writing: otherwise it's unenforceable.
Justice Rubin isn't entirely with the breadth of the majority opinion, and might allow some in-house counsel to enforce oral contingency fee agreements in certain settings. But at least after today's opinion, in-house counsel are forewarned:
Get it in writing.
Dating is not easy. Especially if you're a woman. Among other things, you might run into someone like Gregory Wise.
It's pretty chilling, even though (thankfully!) the victim wasn't ever physically assaulted. It started innocently enough, like a million (or more) online dates: "Defendant met R.F. through a dating website in 2011. After a couple of casual dates involving walking around public parks, she relayed to defendant she was not interested in pursuing the relationship."
Fine. Didn't work out. Time to move on.
But Mr. Wise had other plans.
"Defendant still continued to text and call her over 900 times for the following three years, even though R.F. only responded to tell him to stop and attempted to pretend she had changed her number. In 2015, defendant resorted to threatening to kill himself if she did not reciprocate his feelings towards her. Defendant had also changed his profile on the dating website to say, “[R.F.] you are the only one for me,” call R.F. his “soulmate,” and that: “She just confuzzled [sic] and continues to play games with me as she had from the very beginning. . . . I been ‘stalkering’ her lately. Whatever that word means that concept means. She so fraidy [sic] of me she won’t even dare respond so I guesses [sic] I will have to confront her.” Around discovering defendant’s profile changes, R.F. also found a video defendant uploaded showing him shooting guns while running through a forest in a military fashion."
Not good. You could easily see why the victim might be freaked out.
But it gets worse.
"On June 22, 2015, defendant was arrested after a light rail rider called 911 reporting defendant had a gun in his pocket on the train. Officers found on defendant a map to R.F.’s house and a document titled “Plan Trackering [sic]” that discussed placing a tracking device on a vehicle. Defendant also had a document with R.F.’s license plate number and a description of her vehicle."
This makes it an easy stalking case, right? There's basically a zero percent chance the jury's going to acquit. So just introduce the basic evidence, rest, and declare victory.
But what makes the case even weirder (to me) is that the prosecutor goes ahead and introduces other (freaky) evidence as well:
"Before trial, the prosecutor sought admission of the photographs recovered from defendant’s devices. The first set of pictures were nearly 300 screenshots of a computer desktop with various images of R.F. next to other images including those of legs and feet of other women and monster-like cartoons eating women. These screenshots were consistent with vorarephilia, or vore pornography, which is characterized by a neurotic desire to consume or be consumed by another person or creature. Defendant also labeled the screenshots with the description of what he was doing, often sexually, when he took the screenshot, such as “1-1-13 0915 knees right sex stared into her eyes snow white.bmp” and “6-6-12 2404 focusing on her face of her in the costume on kn.bmp.”
The prosecutor described these photos as getting “to the meat and potatoes of the defendant’s intent and obsession with the victim.” Defense counsel argued the photos were private and not used in any way to harass or annoy. The trial court found these pictures admissible without explaining its reasoning.
The second set were photographs surreptitiously taken of 14 other women totaling over 350 pictures. Most of these pictures were taken in parking lots while the women were getting in or out of their cars, or while they walked down the sidewalk, and many focused on their legs. The prosecutor argued these were admissible under Evidence Code sections 1101, subdivision (b) and 1109. The trial court permitted these photos because they were “relevant to his intent in the stalking charge.”
To me, that just seems wrong. Maybe they're marginally relevant; and, to be clear, I'm saying "maybe" just to be safe. But their prejudice clearly outweighs whatever their probative value might be. The goal is to label Mr. Wise as a freak for loving monsters eating women. Which, sure, yeah, he definitely is, but that doesn't really go to the whole "crime" part of what we're trying to get at here.
Nonetheless, the Court of Appeal affirms. Personally, I'd have probably been fine if it had just said "at worst, harmless error, since the evidence was pretty darn clear on the whole stalking thing." But, nope, the justices conclude that the various photographs were relevant, admissible, and non-prejudicial (or at least that their probative value outweighed any prejudice). Seems way too aggressive to me, but what do I know?
Anyway, the point is this: Online dating isn't always perfect. Or even close.
It's a fight between two neighbors, both of whom live in fancy San Francisco homes. One of 'em has some amazing views of the skyline, the Bay, the Golden Gate bridge, etc. But then a "voluntary" Monterey pine seedling starts to grow -- rapidly -- on the neighbor's property. Eventually, the tree starts blocking a ton of the neighbor's great view, so after a lengthy administrative process, the neighbor sues.
The neighbor with the blocked view prevails. The tree's ordered to come down. The Court of Appeal affirms.
All that's marginally interesting, but not why I mention the case.
During the litigation, the defendant neighbor (and counsel) discover that the plaintiff took out a big reverse mortgage on their home, and that this mortgage required that the San Francisco place be her primary residence. It turned out, however, that the plaintiff had filed a declaration in (tax-free) Florida that Florida was her primary residence, and that she moved to Florida in 2008 and had no intention to return to California.
Which is pretty much irrelevant to the lawsuit, but which nonetheless does make the plaintiff look bad.
So defendant files a motion to "dismiss" the lawsuit on an extraordinarily dubious claim that the plaintiff wasn't the "owner" of the property (even though she clearly was) because her fraud might perhaps make the bank foreclose. And then, just-so-coincidentally, counsel for defendant calls and writes the loan company, gives 'em details, and includes the pleading it files -- which prompts the bank to show up at the hearing and initiate proceedings to terminate the loan.
The trial court ain't having any of that. Not only does it deny the motion, but it finds that the efforts to queer the mortgage were bad faith litigation tactics, and imposes bad faith sanctions of $47,345.30 jointly and severally on defendant and "their trial counsel William S. Weisberg and the law firm of Weisberg & Miller." (Parenthetically, Mr. Weisberg's firm website proclaims: "Prior to cofounding Weisberg & Miller, William Weisberg worked as a senior associate attorney at a major insurance defense law firm in San Francisco. . . . Mr. Weisberg maintains a strong reputation among his clients and adversaries as an aggressive litigator. . . ." True that, I guess.)
The Court of Appeal not only affirms, but also drops a footnote: "We assume the trial court and attorney Weisberg have already reported the judicially imposed sanctions to the State Bar of California. (Bus. & Prof. Code, §§ 6068, subd. (o)(3) [attorney self-reporting duties]; 6086.7, subd. (a)(3) [court reporting duties].)"
Ouch.
When I saw this opinion, my first thought was: "It's an immigration case, and it's authored by Judge Wallace, so I already know how it turns out." As I read further, yep, I was indeed not surprised by the ultimate result.
But my second thought was, honestly: "I know I'm old, but Judge Wallace has to be really getting up there, no? Great for him to be still cranking out opinions."
Judge Wallace was a long-timer even when I was clerking on the Ninth Circuit, way back in the day; indeed, he was the Chief Judge back then. To give you some sense of how long he's been on the Ninth Circuit, he was appointed by President Nixon. Whoa. Blast from the past.
He's 92 years young, and still writing opinions. Not a plethora, mind you; as far as I can tell, he's only written a half dozen in 2021. Still. For me, I'd definitely take that level of production myself at age 92, thank you very much.
So kudos to Judge Wallace.
Who, by the way, is not the oldest judge on the Ninth Circuit. That award belongs to Judge Goodwin, who's a spry 98. But I think that Judge Goodwin has only authored two opinions in the past half dozen years; one back in 2016, and another back in 2015 (from a case argued in 2012). So Judge Wallace likely wins the award for continuing on-the-bench performance.
Though Judge Goodwin still wins first past the post.
The majority opinion (written by Justice Ohta) holds that when a policyholder brings a claim for declaratory relief, it's error for the trial court to grant a demurrer. That's because, in essence, the whole point of a declaratory claim is to declare the rights of the parties, and since that's a permissible basis for a claim, it's wrong to say (on a demurrer) that the request is improper, even if -- as a matter of law -- one side or the other should win. That's a merits determination, not the proper basis for a demurrer. The majority thinks that's what the California Supreme Court decided in Maguire v. Hibernia Savings & Loan Soc. (1944) 23 Cal.2d 719.
That said, in the present case, the Court of Appeal says that even though the demurrer shouldn't have been granted, on the merits, it's harmless error here, since, yep, as a matter of law, what the insurance company did here was fine.
Justice Wiley concurs in the result, but disagrees on the process. He thinks that granting a demurrer should be totally fine, and that there's no reason to waste time and money by making the case resolve on the merits at the subsequent summary judgment (or trial) stage. Bounce the thing now instead. Justice Wiley thinks that Maguire doesn't set forth the rule that the majority thinks it does, and that, instead, cases like Zeitlin v. Arnebergh (1963) 59 Cal.2d 901 suggest that it's totally fine to resolve declaratory relief cases on the merits on a demurrer.
For me, I'd have to read the underlying California Supreme Court cases in more detail to decide whether the majority or concurring opinion has the better view of precedent. But here's what I know for sure: the rule should be that you should resolve these things on a demurrer. Maybe it was fine in 1944 to wait until summary judgment or what have you to resolve declaratory disputes that the law definitively requires be resolved in favor of the defendant. But at this point, the process is far too expensive and burdensome -- for both sides -- to needlessly delay things until that point. The rule now should be that a demurrer is okay.
That said, here's what we can all agree on: (1) the California Supreme Court precedent on this point is at least partially unclear (hence the disagreement between Justices Ohta and Wiley); (2) there are plenty of older Court of Appeal cases that say the rule is precisely the one described by the majority (e.g., the several "more recent authorities" cases listed in Justice Wiley's concurrence that he says "err"); and (3) after today, there's an on-point 2021 Court of Appeal opinion that definitively says you can't grant a demurrer in these types of disputes.
Which means, as a practical matter, that's the rule.
Which is bad.
In the perfect world, the losing party here (i.e., plaintiffs) would file a petition for review that says that the Court of Appeal got it wrong and that asks the California Supreme Court to establish the right rule. But that's almost certainly not going to happen here, for multiple reasons. First, since every single jurist on the case (both in the trial court and on appeal) agrees that plaintiffs are wrong on the merits, it would make zero sense for plaintiffs to seek review -- even if they got it, they'll surely lose on the merits, so it'd be a waste of money. Second, the underlying factual dispute (whether plaintiffs were entitled to Cumis counsel) definitely isn't review-worthy, so no reason to take the case on that point to begin with. Finally, here, the plaintiffs won on the issue that is potentially review-worthy (i.e., whether a demurrer is the right way to dismiss these things), so they've got zero reason to ask for review on this point, and the party that lost (the defendants) on this point has zero reason to ask for review since they ended up winning anyway.
The net result being that cases like this remain the rule and establish a totally inefficient procedure.
So here's what should happen in our (imperfect) world: The California Supreme Court should grant review of this case on its own pursuant to Rule 8.512(b) and make clear -- either by "clarifying" prior precedent or simply by making a new one -- that, yes, a demurrer can properly be granted in cases like this one.
Will that happen? Doubtful. The California Supreme Court doesn't grant review of very many cases on its own. After all, it's not like it's sitting there reading every Court of Appeal decision that comes down on arcane (albeit important) procedural points and just itching to make more work for itself when even the parties don't bother asking for review. Moreover, there'd potentially be some procedural complexity since, at this point, since the merits of the lawsuit are already resolved, neither plaintiff nor defendant may have any strong reason to care about how the procedural dispute comes out, so maybe there'd be a need to appoint counsel to argue one position or another.
Moreover, while non-parties can potentially request depublication of opinions, they can neither petition for review nor -- as far as I can tell, anyway -- request a sua sponte grant of review by the California Supreme Court itself.
Still, that's what I think should happen. Reach out an grant review in this one. It's a simple dispute. The answer is (IMHO) clear. It'll matter in a ton of cases. And unless review's granted, it's an issue that's likely to evade review pretty much forever (since, at this point, trial courts won't be granting demurrers in these types of cases). The result of which would be massively inefficient for everyone.
My two cents.
This is a judicial opinion, so almost by definition, we know that it didn't work out that well in the end. But even the dry recitation of its beginning -- wholly apart from the fact that it's in an opinion -- would give most people pause as to how it might eventually play out. Here's the opening statement of facts:
"Jones and Fairfield met online in 2013. At that time, Jones was fifty years old, a British citizen living in France; Fairfield was an eighteen-year-old high school student in the United States."
Yeah, that's probably not the perfect setup for a fairy tale.
They end up marrying and having a kid, and then get divorced (shockingly!) shortly thereafter. The fight in the Ninth Circuit is about whether the child -- which one parent took (without consent) from France to the United States -- should be returned to France.
How's the marriage go? Uh, not well:
"According to
Fairfield: Soon after Jones began working from home, she
discovered him viewing child pornography. On another
occasion, she caught Jones watching child pornography while [the child] was in the room. Fairfield further discovered that
Jones had downloaded hundreds of files of child
pornography."
(I'm shocked -- shocked -- that a 50-year old guy who has online dates with teenagers from another country might have an interest in child pornography.)
Mind you, Fairfield denies all of this. Though -- and, again, I know this will be a total surprise -- "[h]e does, however, acknowledge his prior Texas conviction for possessing child pornography."
(It's a sad testament that, with respect to this part of the opinion, "Fairfield asserts Jones never told her about this conviction and she only discovered it sometime after the couple separated. Jones contends Fairfield has known all along about his prior conviction.")
Lest the situation be limited to mere kiddie porn:
"According to Fairfield, after she confronted Jones about his child pornography addiction, he “became aggressive” toward her, throwing a glass at her that shattered near Fairfield and their child, tossing the child’s stroller out a window, flipping a table over, holding Fairfield down and screaming that she made him crazy and violent, and on one occasion raping her. Jones acknowledges throwing the glass, but denies that it shattered near either Fairfield or ICJ. He denies Fairfield’s other accusations of abuse and rape.
Between April 24 and May 1, 2020, while the family was still living together, Jones numerous times threatened suicide if Fairfield left him. On May 1, 2020, after Fairfield asked Jones to move to another of their houses, Jones hung himself from a tree outside their home. He survived after Fairfield and several neighbors cut him down."
(Plus this: "Fairfield asserts that, at this same time, Jones left the family residence and began living in a tent in order to hide from French authorities because Jones feared they had discovered his child pornography. Jones denies this this was the reason he left the residence.")
It's a crazy world out there, folks.
I'm seriously, honestly and sincerely confused by a portion of this opinion by Judge Bress.
It's a death penalty habeas case. Defendant (Bolin) committed a high-profile multiple murder and was caught only after a well-publicized episode of America’s Most Wanted. The trial's scheduled to be held in the county (Kern) in which the murders occurred, so there's a (quite legitimate) concern that jurors might be tainted by all the preexisting pretrial publicity.
Defendant's lawyer accordingly files a motion (prior to voir dire) to change the venue to a different county. "In connection with his venue motion, Bolin submitted videotapes of the America’s Most Wanted episodes and newspaper clippings . . . . In particular, Bolin argued that the first episode of America’s Most Wanted included an inflammatory and misleading reenactment of his crimes." Defendant also submitted a survey that showed that 20 percent of potential jurors had seen this program.
"The trial judge initially said he was 'very, very concerned' about the America’s Most Wanted program." Understandably. The trial judge also said that this program (and its allegedly inaccurate reenactment of the crimes) was his central -- indeed, only -- concern. (He wanted to “make it perfectly clear, but for this reenactment on America’s Most Wanted, I do not think there are grounds to change the venue.”)
But, at that stage (remember, this is right before voir dire), the trial judge said he was at that point "not inclined to grant the motion to change venue,” and instead said that he'd “reserve ruling on” the venue motion, and "wanted to see the responses given by [the actual] potential jurors during voir dire." Which, to be honest, seems reasonable.
When the actual prospective jurors get questioned, lots of them (consistent with the survey) say they saw the program, but also say (predictably) that they think they can be fair and judge the case on its merits. At no point does counsel for defendant renew his motion to change venue.
The trial happens, defendant is convicted, and is sentenced to death. He ultimately files a habeas petition that asserts that his counsel was ineffective for not renewing the motion to change venue.
So the question on federal habeas (after AEDPA) is: Could a fairminded jurist reasonably conclude that counsel it was a "reasonable trial strategy" not to renew the motion to change venue?
Judge Bress says: Yes. Thereby affirming Bolin's conviction and death penalty.
I can see a lot of ways one might get to that result. But the way that Judge Bress does it just doesn't seem to logically work. (At least for me.)
Judge Brees makes two arguments for why the decision not to renew the motion wasn't ineffective assistance of counsel. First, he says that renewing the motion wouldn't have succeeded (because the trial judge would have denied it), and hence the decision not to renew was a "reasonable trial strategy."
As a purely descriptive matter, I think Judge Bress is right that the trial judge was unlikely to grant the motion. Sure, the trial judge "reserved ruling" on that motion until after voir dire, and said that he was profoundly concerned about the America’s Most Wanted show. But Judge Bress seems right when he says that given the judge's refusal to excuse for cause jurors who had watched this program, plus some other random comments by the judge during voir dire, it seems -- and I'm using Judge Bress' own words here -- that renewing the change of venue motion "stood little chance of success" (or, in other language by Judge Bress, "was unlikely to succeed").
But here's the thing: "Unlikely" to succeed most assuredly does not mean "would definitely not succeed." Remember: We're only talking about a decision not to renew a motion (1) that counsel for Bolin had already made; and (2) that the trial judge had expressly "reserved judgment" on. I agree that a reasonable jurist might conclude that, you know what, given the judge's comments, after voir dire, there was, say, only a 15% (or maybe even 5%) chance of success.
But the guy's life is at stake. Even if there's a super limited chance of success, why not take the shot?! It's not like it costs you anything -- you already made the motion. The question is simply whether to say "Hey, judge, how 'bout that change of venue motion? We're still up for it." Yeah, probably, you'll lose. But why not try? Would YOU like your counsel to give it a shot if YOUR life was on the line?
Now, normally, you don't want to waste time, and you want to preserve your credibility with the jury, so you often (tactically) don't make arguments that you think are losers. But time's not an issue; again, the lawyer's already made the motion, and it takes literally five seconds to just ask the judge to rule on it at this point. Nor is credibility an issue: it's an argument to the judge, not the jury, and it's not like the judge is going to go ballistic at you renewing a motion that he's expressly reserved judgment on, or to sentence your client to death simply because he's miffed that you renewed a motion that he said he'd be willing to decide after he took a look at voir dire.
In short: There's zero downside to renewing the motion, and a possible -- albeit low -- upside. It makes zero sense not to renew such a motion, particularly in a death penalty case. It's somewhat akin to the failure to investigate possible mitigating evidence. Sure, it might be a reasonable tactical strategy not to introduce such evidence at trial, but it's not a reasonable tactical decision to not even try in the first place. You don't refuse to do things with zero downside. Particularly when, as here, it costs you (and your client) absolutely nothing.
Now, if Judge Bress wanted to say that since a renewed motion was unlikely to be granted, there's no prejudice, that's be one thing; that might well be right. But that's not what the opinion says. It instead says that it was a "tactical decision" that a reasonable lawyer might make, not that there was a lack of prejudice. That's not right, in my view. Any reasonable lawyer would have renewed the motion, for there was zero downside in doing so (and real possible upside). It's not a "tactical" call not to renew a motion that you've already filed, has no downside, has some upside, and a nonzero chance of success. (Judge Bress surely knows the difference between the "no deficient performance" and "no prejudice" prongs of Strickland; indeed, later in the opinion, on a different point about mitigating evidence, he expressly relies upon a "no prejudice" holding with respect to that -- separate -- issue.)
So that part of the opinion seems just wrong.
Judge Bress then follows this conclusion with what purports to be a separate point -- an effort to argue that, yeah, there'd be a downside to renewing the motion. (Judge Bress begins this part of the opinion by saying: "Renewing the change of venue motion also carried considerable risks as well.") He first says that counsel for Bolin didn't use all his peremptory challenges to excuse everyone who watched the show on America’s Most Wanted, and says (probably correctly) that "[u]nder California law, counsel’s failure to exhaust all their peremptory challenges is at the very least a 'significant' factor supporting the denial of a renewed motion to change venue." Fair enough; as he's already explained, that reduced the likelihood of success of renewing the motion somewhat, albeit not to zero. He then using these facts to say: "But using all of Bolin’s peremptory challenges would have meant striking jurors that counsel thought could be favorable to Bolin, including jurors perceived as less likely to vote for the death penalty. Especially when the venue motion was unlikely to succeed, Bolin’s experienced counsel could have decided that knocking out potentially favorable jurors was not a wise strategy. Under AEDPA, Bolin’s defense lawyers were not required to pursue a change of venue motion at all costs."
That totally doesn't follow. The core argument is not that Bolin should have used all of his peremptory challenges to strike jurors who might be favorable to him in order to slightly increase the chance of winning a venue motion. Yeah, a reasonable lawyer -- indeed, most -- wouldn't have done that. But that's not the argument. The argument is that even if you kept all the "good" jurors on the panel, you should still have renewed the motion that you already made and that the judge "reserved judgment" on. The alleged "tactical" decision to not strike the jurors is not the alleged deficiency. What instead was the error was not renewing the motion. Period. For that, there's no reason offered other than "Well, it probably had a low chance of success." So what? Give it a shot. No reason not to. And the fact that it was reasonable to not strike favorable jurors isn't a refutation of that central point in the slightest.
Could Judge Bress have gotten to the result he wants by arguing the lack of prejudice? I think so. But that not what he does, and focusing instead on the deference we (admittedly) give to "tactical" decisions doesn't justify not renewing the motion here.
So, again, on this point, the opinion just doesn't make logical sense. Better -- or at least understandable and rational -- to get there by arguing the prejudice prong, not as a matter of substantive deficiency.
This seems like a pretty big screw-up.
Plaintiff makes a CCP 998 offer for $1 million, it doesn't get accepted, and at trial plaintiff wins $3.9 million. Among other things (e.g., expert witness fees), that means plaintiff is entitled to a boatload of prejudgment interest; neither the opinion nor the briefs exactly how much, but it's a fair piece of time at 10%/year on $2.9 million (i.e., $3.9 million minus $1 million). The trial court awards that amount.
The Court of Appeal reverses, holding that the 998 offer wasn't effective because it didn't have a place where the defendant could sign (or any instructions on how to accept the offer).
It's pretty easy to draft an effective 998 offer; you can even look at samples online. That simple mistake here costs the plaintiff a ton of money.
Not exactly the best look for plaintiff's counsel. Or happy news for its malpractice carrier.
P.S. - The web site for plaintiff's counsel is a bit too flashy for my tastes. It's like something that you'd see on (bad) late night television.
The Ninth Circuit didn't publish anything today, and the California appellate courts only published this opinion. So relatively slim pickings.
Still, I thought that today's (sole) opinion helped prove the point that you can sometimes figure out the way a case will come out merely by seeing the manner in which the opinion frames the facts.
For example, here, the first paragraph of the opinion seemed fairly pro-plaintiff, or at least not anti-her. It reads as follows:
"Sharon Curcio, formerly a teacher with the Fontana Unified School District (the district), learned her personnel file included derogatory statements about her. When the district refused to allow Curcio to obtain or review those statements, she sought assistance from her union, the Fontana Teachers Association (FTA), and from the California Teachers Association (CTA). Such assistance was not forthcoming, so Curcio initiated proceedings before the Public Employees Relations Board (the board), claiming FTA and CTA breached their duties of fair representation and engaged in unfair practices in violation of the Educational Employment Relations Act (the Act). (Gov. Code, § 3540 et seq.). When the board decided not to issue a complaint, Curcio filed this lawsuit."
Okay. That doesn't sound so bad. Maybe she's got a claim, maybe she doesn't. Seems neutral and disinterested. No way for me to tell which way I think the case will likely come out.
But then I get to the third paragraph of the opinion, which says this:
Curcio filed an unfair practice charge with the board, alleging FTA and its president breached a duty to represent her under the bargaining agreement between the district and FTA, when FTA and CTA declined to provide Curcio with an attorney to pursue her request for complaint letters in her personnel file. She requested the board order FTA to return the dues she had paid for the past 16 years ($22,000) because she had been forced to represent herself (with the assistance of colleagues) in her quest to obtain the complaint letters. In addition, Curcio prayed for $1.5 million in damages for FTA’s breach of contract. In her statement of the conduct that gave rise to her claim, Curcio also alleged CTA breached its duty to represent her. But, she did not name CTA as a party against whom the charge was directed."
Look, I understand that that's an equally "neutral" recitation. It just sets forth the facts.
Still. After reading that paragraph, I have a darn good sense of how this one's going to come out.
As indeed it does.
Everyone on the panel wants the plaintiff to lose. But, sadly, they feel compelled to reverse the grant of summary judgment against him.
I'm not at all confident that the panel's expression of its opinion about the plaintiff's case -- he's what's called a "copyright troll" -- will matter, or that the plaintiff will take it to heart. The guy seems to like being a troll; maybe he doesn't have anything better to do (he's a retired lawyer).
But at least the panel tried.
This is an otherwise routine, unanimous en banc opinion from the Ninth Circuit in an immigration case; indeed, one that was sufficiently facile that it didn't even require oral argument.
Judge Bennett makes the unremarkable memorable by writing a concurrence in which he doesn't disagree with the majority in even the slightest, but instead simply wants to identify four other -- totally unrelated -- immigration cases that he also thinks should be taken en banc.
Usually you wait until those cases actually arise and then asked that circuit precedent be overruled. But Judge Bennett apparently doesn't want to wait.
Okay, then. Thanks for that.
Because I am decidedly un-hip and un-young, I did not know anything about celebrity jeweler Ben "The Baller" Yang before this opinion, which involves a lawsuit concerning a birthday party cake that Mr. Yang ordered but decidedly did not appreciate.
I do not think that Mr. Yang comes off looking very good here. A reader may well get the impression -- as I did -- that Mr. Yang acted like a bully, using his celebrity as a bludgeon against a small bakery who made a cake that he didn't enjoy. ("According to Big Sugar’s employees, Yang called and said they had put drugs on a cake for a seven year old and that he had a TV show, a podcast, and over a million followers who would destroy Big Sugar. Then he hung up. [To be clear: the bakery did not, in fact, put drugs on the cake, but some of the decorations on the "mad science" cake Yang ordered may indeed look like pills.] He called back and told a second employee to “put that fucking bitch on the phone,” but he hung up before the first employee could get to the phone. Yang called a third time and again threatened to destroy Big Sugar, mentioning his social media followers and his podcast." Then Mr. Yang repeatedly "cancelled" the bakery on Twitter and on podcasts, with claims that included: "This was a 7 year old kid’s party. They put prescription drugs. They put molly. They put Percocets.”
The anti-SLAPP motion that Mr. Yang files loses in both the trial court and in the Court of Appeal. It's an easy call on that front, IMHO. Mr. Yang's somewhat lucky not to get sanctioned for a frivolous appeal; to me, again, this is not a close case.
Apparently, Mr. Yang's lawyers are from "The Cochran Firm," a paean to Johnnie Cochran. Maybe if you're an Internet celebrity, you still get to tell people a version of "I got Johnnie Cochran defending me," even though he's dead.
Yeah, this lawsuit didn't have much of a shot, even from the outset.
Drawing Judge VanDyke (and having him author the opinion) probably didn't help, either.
This is a ton of work for a relatively small sum of money (in the scheme of things).
It's important to the plaintiff, Rick Martin, of course -- and I'm always sympathetic to anyone with the last name of "Martin." Especially if, as here, he's a hardworking longshoreman whose knees got blown out on the job.
The issue is simply how you calculate Mr. Martin's "weekly wage" for disability benefits. Everyone agrees that in the 52 weeks before his injury, Martin made $47,498.41 and worked 264 days. The appeal is about whether his "weekly wage" should be calculated under 33 U.S.C. § 910(a) or § 910(c). The ALJ did the former, and on appeal, Mr. Martin wants the latter.
Judge Hurwitz writes a 13-page opinion that says that the ALJ got it right, and another memorandum disposition that addresses some other stuff that Mr. Martin wants. A lot of ink for not that much cash.
Still, it's nice to see that the attention devoted to an issue doesn't always depend on the monetary figure at stake.