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

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

Apparently so.

This ain't your father's Elks lodge.

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

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

Here you go.

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

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

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

Which affirms, albeit in a split opinion.

That ends the case.  At least for now.

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

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

All but the shouting, anyway.

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

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

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

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

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

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

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

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

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

Nice try, though.

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

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

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

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

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

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

That's all one needs to say.

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

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

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

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

Yet here we are.

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

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

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

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

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

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

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

Nothing unusual there, right?  Happens all the time.

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

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

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

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

So here's my only question:

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

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

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

What gives?

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

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

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

Apparently not.

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

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

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

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

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

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

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

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

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

Yikes.

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

Not good.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That's what happens.  Right or wrong.

People v. Flores (Cal. Ct. App. - Oct. 8, 2021)

I'm fairly confident that what Justice Robie says in this opinion about both the applicable law and the existence of prejudice accurately states the existing doctrine.

But should it really be this way?

It's a murder case, and the various charges are first degree murder, second degree murder, and voluntary manslaughter.  All the jurors agree it's not first degree murder, but they're split on whether it's second degree or merely voluntary manslaughter.  Eight think it's second degree, but four think it's only voluntary manslaughter.  They deliberate quite a bit, but still can't resolve the split.

So they talk about prospective punishment, which they're definitely not supposed to do.  The murder jurors obviously want the guy to spend a lot of time in prison, whereas the manslaughter jurors don't think that's right.  Regardless, all the jurors don't want the guy to walk; they all think he's committed a serious crime (e.g., wrongfully killing someone).  They're worried that, maybe, if they hang, the guy will go free.

So the eight jurors compromise, and even though they think he's guilty of a more serious crime, they vote to acquit the guy on that count and convict him merely of voluntary manslaughter.  All the jurors agree.

The Court of Appeal reverses the conviction and remands for a new trial on the manslaughter count.

Did the jury do wrong?  Clearly.  They're just supposed to find the facts, not consider punishment.

Did that error affect the verdict?  Of course it did.  Talking about punishment caused some jurors to change their minds.

Hence why Justice Robie reverses the conviction.

But here's the rub:  Is that really prejudice?  Did it really harm the defendant?

Sure, the (improper) consideration of punishment changed some of the juror's minds, but it did so in a way that -- at least facially -- only benefited the defendant:  it got them off of voting to convict the guy of a more serious offense, second degree murder.  That's a benefit, not a harm.

I understand that it simultaneously got them to vote guilty of voluntary manslaughter.  But they were already on board for that.  They already thought he was guilty of at least that offense; their only dispute is that they wanted him convicted of more.  Not a single one of 'em was voting to acquit on voluntary manslaughter; with respect to that charge -- the charge for which he was ultimately convicted -- the discussion of punishment didn't affect their decision one iota.  It simply got 'em to acquit on a different offense.

That's not prejudice.  To the defendant, anyway.

Now, on some level, you might argue there's "prejudice" to the defendant because the compromise meant that the jury didn't hang, and the defendant might arguably prefer a hung jury to a conviction on voluntary manslaughter.  But three things.

First, and least significantly, I'm not even sure the predicate is actually true.  A totally hung jury would mean that the guy could potentially be convicted in a future trial of all of the charges, including but not limited to second degree murder.  Seems like a defendant might well not want to take that risk.

Second, the alternative isn't really a hung jury on everything.  The jury unanimously agrees, after all, that the defendant was guilty of (at least) voluntary manslaughter; they just disagree as to whether it's murder.  So they can definitely, beyond a shadow of doubt, (1) unanimously convict on the voluntary manslaughter charge, and (2) declare themselves hung on the second degree murder count.  That puts the defendant in much worse position than what the jury did here -- i.e., convict on manslaughter but acquit on second degree murder -- because the prosecution can presumably retry the guy on second degree murder if it wants with the manslaughter conviction already in hand.  So what the jury did here doesn't exactly count as "prejudice" at all from that perspective; indeed, it's a fair piece better than the alternative.

Finally, doctrinally, I'm not at all confident that a compromise like this counts as "prejudice" any more than other types of split verdict that we're totally comfortable with.  Take flatly inconsistent verdicts, for example.  Let's say a jury decides that a defendant is guilty of Crime X but acquits on Crime Y, even though Crime Y is a foundational predicate of Crime X; i.e., both can't possibly be true.  Is what the jury did a compromise verdict?  Maybe; indeed, lots of times, we're pretty confident it is.  Can the jury possibly have properly followed the law?  Nope.  They definitely did something wrong, because no way can you acquit on the one but convict on the other.  But do we reverse the resulting conviction?  Nope.  We do not.  We say that, yeah, the jury must have reached a middle ground, but that result benefits the defendant a little bit (the acquittal on Y) while hurting him a little (the conviction on X).  No prejudice, so no reversal.

Same reasoning -- or at least result -- here, right?

Indeed, arguably, there's even less reason to find prejudice in the present case.  Mr. Flores definitely got a benefit since he obtains an acquittal on second degree murder even though eight jurors though he was guilty.  And arguably he didn't even lose anything because he was only convicted of an offense that all twelve jurors thought he had, indeed, committed.

Regardless, even if you count that last thing as prejudice, it's still a balance both ways; some benefit, some loss.  We don't reverse for inconsistent verdicts that do the same thing.  Why here.

(I'm not necessarily saying that what we do with inconsistent verdicts makes sense, or is good law.  But the point is that this is the law, and if we do it there, why not here?)

One final point.  When you look at the underlying impropriety, it's hard to see that the prejudice flows in the direction that Justice Robie assumes.  Sure, they improperly talked about punishment, but they did so in order to convince the second degree murder folks to acquit on that defense -- hardly something about which the defendant could complain.

To prove the point, let's imagine a slightly different fact pattern, in which (as here) eight jurors want to convict of second degree murder, four jurors (as here) want to convict of voluntary manslaighter, and (as here) the jury improperly talks about punishment in its deliberation.  The only variation is that in this hypothetical, the jurors talk about punishment -- again, improperly -- because the four jurors in favor of the lesser offense say that the punishment for second degree murder would be too severe, and on that basis convince the eight to convict only on voluntary manslaughter.

Does that impropriety prejudice the defendant?  Of course not, it got 'em to acquit, not convict, even though the ultimate output is indeed a conviction on a particular charge (voluntary manslaughter).  It seems inconceivable that we'd reverse that conviction by finding prejudice to the defendant.

Same here, no?

It's not that I disagree that prejudice is presumed.  It simply seems like it's rebutted in situations in which, as here, everyone agrees that the impropriety resulted in (1) an acquittal on an offense that lots of jurors thought the guy was guilty of, and (2) a conviction in which all the jurors already thought the guy was guilty (and a portion of whom were merely hoping to convict on a greater offense).

The case that Justice Robie cites for prejudice in this context is People v. Hem, which indeed says that a retrial is better for the defendant than a conviction on a less serious offense.  But in that case, unlike the present one, it was unclear whether all the jurors had already agreed on the lesser offense; there, the Court of Appeal reversed precisely because the trial judge didn't inquire at all into the nature of the deliberations.  Here, by contrast, we know full well what happened; all the jurors already agreed on the lesser, and were only disputing (and compromised) the greater.  That seems profoundly different to me.

The inequity here seems particularly striking due to the practical effects of the Court of Appeal's opinion.  It permits the defendant to obtain the benefit of the jury's compromise -- i.e., its compromise acquittal on the second-degree murder charge (because there's now a Double Jeopardy bar to a retrial on that count) -- whereas not binding defendant to the detriment of that same compromise (i.e., conviction on the lesser count).  With inconsistent verdicts, the law finds that result entirely untenable.  Yet that's precisely what the Court of Appeal's holding here ensconces into law.

It's not that I like compromise verdicts any more than you do, or that I want juries to consider the degree of punishment in deciding whether someone's guilty.  Since that's not the law we currently have, and I get it, so I'm on board for presuming prejudice and thinking carefully about reversing convictions when the jury's done something wrong.

I'm just not sure that these principles really apply in the present case.  Even if that's indeed what the law says.

Forest Lawn Memorial Park v. Ramirez (Cal. Ct. App. - Oct. 7, 2021)

I hope that this opinion gets depublished.

There's an automobile accident and someone's injured, and the injured party sues the other driver and his employer (Forest Lawn).  The question is whether the defendant driver was driving for his employer at the time of the accident; if he was, the employer might be liable, if not, no liability.  The employer moves for summary judgment with declarations that the driver was simply driving to work in his own car and had no job responsibilities that involved driving; if that's true, no vicarious liability.

Plaintiff responds with a declaration of a third party witness that says that's not true; that she saw the driver pick up flowers on multiple occasions for Forest Lawn.  As described by the Court of Appeal, here's what the declaration says:

"Scott stated that she was an employee of “Jensen’s Florists” in Palm Springs, where she had worked for many years. She stated that between February and March 2017, she witnessed “an employee of Forest Lawn, named Joshua Brown[,] that came into Jensen’s Florists on numerous occasions with his car to pick up flowers on behalf of Forest Lawn.” She stated that this was done during work hours. She signed under penalty of perjury."

On that basis, the trial court denies summary judgment.  Disputed issue; genuine issue of material fact.

Right?  Any problem with that?

Nope.  Not with me, anyway.

Are you at all concerned that the declaration of the witness isn't admissible?  Does it show personal knowledge of the witness?

Of course it does.  She says she worked at the florist, had worked there for many years, and personally saw the driver (Joshua Brown) pick up flowers on behalf of Forest Lawn.  You can't get more basic and fundamental than that.  I've filed dozens of declarations over the years that say basically the same thing.  So, I suspect, have you.

But the Court of Appeal holds that the declaration is flatly inadmissible, on the theory that it lacks foundation.  Here's Justice Raphael's reasoning:

"The stated basis for this statement was only that Scott was an “employee of Jensen’s Florists”; the declaration provided no other reason to establish how she might know the information to which she was testifying. In many contexts, a witness’s assertion that she witnessed something readily provides adequate foundation for her testimony. Here, however, for Scott to have personal knowledge of the matter she asserted, she would have to be in a position at a florist to know and remember for three-and-a-half years (a) the name of a person picking up flowers, (b) the company that person worked for, and (c) that the person arrived in a car during work hours. Were Scott testifying at trial, the bare assertion in her declaration would likely be inadequate to overcome an objection for lack of foundation; a court would demand more testimony from a live witness as to how she knew and recalled the information."

These are all good points.  But they're the stuff of impeachment, not foundation.  Sure, it's three and a half years earlier, and one could reasonably wonder how she'd remember a guy's name for so long.  But that's not impossible.  She says she remembers.  That's enough.  Similarly, yeah, I do wonder how she knew (and remembered) the customer's name or the company he worked for.  But in a declaration, I'm not required to spell out in exhaustive detail every background circumstance of the events to which I'm testifying.  The witness said that she personally saw the guy and had personal knowledge of his name and his company.  You can cross-examine the witness to try to show that's not true.  But to say that the declaration lacks foundation just seems way too strong.  If I say "I saw James Kirk commit the murder because I was there and I saw it and it was him," that's fine.  I don't have to spell out how I'm sure that it was James Kirk.  I said it was him.  I said I had personal knowledge of that.  At the evidentiary stage, I think that's sufficient.

The point about "how do you know it was work hours" seems even less persuasive.  How does the witness know that it was during work hours; well, you can ask her that if you want, but here's likely how:  because everyone pretty much knows what that means.  It means he picked up the flowers like between 9 to 5.  Can you ask her to be more specific?  Sure.  Can you ask her if she remembers the exact time?  Yeah, if you want.  Can you says:  "Well, sure, you think those are work hours, but do you know whether or not Joshua Brown is assigned to work the night shift?"  Sure, give it a shot.  But to say that the evidence is flatly inadmissible again seems to require way more rock-solid foundation and demonstrable truth than we usually -- or rightly -- require.

Now, in this particular case, I totally understand why Justice Raphael wants to come out this way.  In the present lawsuit, after the trial court denies summary judgment based on this declaration, defendant deposed this witness, at which point she totally recanted pretty much every single thing she said in the declaration, admitting that she has zero idea whether anything she said was true and essentially saying that she signed a declaration without reading or even understanding it because plaintiff's lawyer was badgering her and she just wanted to get him out of her face (and workplace).

Okay.  That's super good impeachment stuff.  I'm pretty confident that if that's the only evidence on the liability side, a jury will find for the defendant.  I certainly would.  So it seems unjust to waste money on the case and let it go to trial.  Just bounce it now.  (The Court of Appeal also seems deeply concerned about the attorney's conduct, saying in a footnote:  "We, too, are concerned by the behavior Scott described. For present purposes, however, we need not decide whether [attorney] Basseri in fact violated the Rules of Professional Conduct.")

But while perhaps equitable, that's not what we do.  If some evidence says X and some says Y, we let a jury decide.  We don't decide for 'em.  Even if we're super convinced that X is wrong and Y is right.

One final doctrinal point.  If you really want to reach the (equitable) result embraced by the Court of Appeal, I personally think the D’Amico route would be the preferable way to go.  (Or at least would have much fewer untoward consequences than the Court of Appeal's "let's start having trial courts refuse to admit a ton of sworn declarations because we're super restrictive on what possibly counts as 'personal knowledge'" principle.)  The California Supreme Court said in D’Amico that you can't create a genuine issue of material fact by submitting a declaration that contracts your declaration.  That rule makes eminent sense; we have the same principle on the federal side as well.  It seems to me that if you applied that rule here, you'd have a possible basis for rejecting the declaration.  Admittedly, usually, the way these things go is that you have a deposition first and then a subsequent declaration -- which we reject -- that contradicts that sworn testimony, whereas here, the deposition came second.  But I'm not sure the order matters.  The principle is the same.

But today's opinion says that this rule only applies to declarations by a party, not a third-party witness.  The federal courts, though, go the other way, as have several other Court of Appeal opinions (as Justice Raphael admits).  But the panel here says that it "disagrees" with those prior opinions, and instead says that the California Supreme Court's D’Amico rule "in our view, [] applies to deposition and declaration statements by only a party to a case" and "does not apply to third-party witnesses like Scott."  I get the reasoning there.  But creating that appellate split seems yet another downside of an opinion that likely will create a ton of confusion, litigation and inefficiency as lower courts struggle to apply the restrictive "you gotta really, really, establish every detail of personal knowledge in your declarations" principal of today's decision.

Am I okay with the ultimate result?  Sure.  Ramirez definitely deserves to lose.  But as they say, and as a reminder:

Bad cases make bad law.

So keep the result but depublish the case.

in re Ari S. (Cal. Ct. App. - Oct. 6, 2021)

Okay, well, I can certainly tell what today's theme is going to be in the California Court of Appeal.  Here's the first opinion published this afternoon (right after the one I mentioned earlier today):

"The mother has three adoptive children: Serenity (born in 1993), Genesis (born in approximately 2002), and Ari (born in 2013). Ari is the only child at issue in this case. Serenity is Ari’s biological parent. The mother adopted Serenity in Nevada through an adult adoption when Serenity was pregnant with Ari. When Ari was six months old, the mother adopted Ari in Nevada. 

The mother, Ari, and Genesis traveled and lived in a van. The timeline of the family’s whereabouts is indistinct. Most record dates come from the family’s involvement with child protective services agencies in different locations. . . . The family was in Montana in the beginning of 2019 when Montana’s child protective services agency removed Ari and Genesis from the mother’s care. We have few details about this removal. A Montana social worker spoke with a Washington state social worker, who told the Department this removal was because the mother neglected Ari and physically abused Genesis. . . .

In spring 2020, the three stayed in Washington state with Ari’s godmother, Linda K., for a month and a half. During that stay, the mother wanted to board up Linda K.’s windows and turn off the utilities because the mother believed “Christ was going to send fire from heaven in the form of a cross.” The mother predicted this would happen on May 27, 2020. . . .

The mother has had long-standing mental health issues that recently have become more severe. The mother has delusions. She believes King Louis V is her father and Donald Trump, Michelle Obama, and Queen Elizabeth communicate with her through satellites. She thinks the world is going to end and she told this to Ari, which frightened him.

Ari said the mother smokes marijuana “a lot.” She has smoked in the van with Ari inside. “Sometimes, I can’t handle the smoke. I hold my breath.” “Sometimes, I suck that in and breathe it in when my mom breathes it out.”

Genesis said the mother once closed her eyes and drove the van into a ditch with Ari inside. The mother said someone was talking to her through a satellite and was controlling her hands.

Genesis and Ari did not attend school and the mother lied about homeschooling them. The mother physically abused Genesis and sometimes spanked Ari.

On June 4, 2020, Genesis reported the mother to police in Franklin, California because the mother said Ari was “being raped by a Saudi Arabian satellite.”

As of June 17, 2020, the family was in San Bernardino County. Someone referred them to that county’s child protective services agency alleging that the mother punched Genesis, that the mother said someone was controlling the mother’s mind, and that the mother did not feed Ari. The county deemed this referral inconclusive: it could not find the family.

The mother, representing herself, filed a lawsuit in federal district court in California on June 25, 2020. She listed a California address in the filings. The complaint says Donald Trump made the mother the “current elected citizen president” and the mother’s grandmother is Queen Elizabeth. One page is styled as a handwritten declaration from Ari. It says, “Ari 6 years old American Citizen First Military Survivor on Soil” and, “My name is Ari. So um judge okay so the people here are doing bad things to my mommy.”"

Not blithesome, eh?  At all.

Michael G. v. Superior Court (Cal. Ct. App. - Oct. 6, 2021)

There's only one published opinion from the California appellate courts today (thus far, anyway), but it's one that definitely makes you feel sympathetic towards the kid:

"A.G. left home in the fall of 2019 due to Father’s escalating mental health issues. According to A.G., Father heard voices and had delusions of persecution by demons, witches, and the government; he also yelled, threw things, and punched the walls in their home. At the time, A.G. was not in contact with Mother, who lives in North Carolina, and whose background includes mental health issues, psychiatric hospitalization, alcohol abuse, attempted suicide, and a criminal history.

The juvenile court found A.G.’s reports were credible and concluded Father’s mental health issues, coupled with Mother’s mental health issues, criminal history, and failure to maintain a relationship with the child, put the child at risk of suffering serious physical harm. Based on these findings, the court assumed jurisdiction over the child in January 2020, removed her from her parents’ custody, ordered both parents to undergo general counseling and other reunification services, and ordered an Evidence Code section 730 evaluation of Father.

During the six-month review period, Father refused to sign his case plan and the therapy referral, or to participate in the section 730 evaluation. Mother made even less progress and was terminated from counseling due to non-attendance."

Stay tough, A.G. 

People v. North River Ins. Co. (Cal. Ct. App. - Oct. 4, 2021)

Justice Perluss buries the lede in this opinion.  In a footnote, no less.

It's yet another bail forfeiture case.  Most of the analysis in the opinion consists of strings of quotations and citations, which makes it a bit difficult -- or at least off-putting -- to read.  But the basic scoop is that the defendant was charged with a crime, a bail bonding company posted his bail, the defendant skipped town, the guy was ultimately arrested and incarcerated in another state, and the LAPD ultimately went to Nebraska and extradited the guy and brought him back to Los Angeles.  Since the guy was returned in time, the trial court vacated the prior forfeiture of the bond, but charged the bail company the costs of returning the defendant to California, which were over $6,000.  (This amount seems super high to me, but perhaps the officers who went and picked up the offender ate and drove/flew quite well.)

But the Court of Appeal reverses.  The rule is that if the defendant eventually shows up on time, then the trial court has to vacate the bail forfeiture, which left the trial court without jurisdiction to make the order for reimbursement of extradition costs.  There you have it.

The final footnote, however, says that the trial court could have conditioned the vacatur of the forfeiture on payment of the extradition costs.  Which might be something to put in the first paragraph.  If only so everyone relevant makes sure to read it.

But at least we now know the rule.

Assuming you read footnotes.