Monday, November 29, 2021

U.S. v. Mora-Cobian (9th Cir. - Nov. 29, 2021)

We're all back from the long Thanksgiving weekend.  Condolences to those who had to work on Friday.

This year, Thanksgiving fell on Evacuation Day, which (unlike Thanksgiving) is always November 25.  Evacuation Day used to be the big holiday in November, but gradually got eclipsed by Turkey Day.  Oh well.  Regardless; here's to foreign troops leaving our soil.  (Though, to recall yet another war, they came back fairly rapidly.  But, thankfully, left again; no holiday for that one, though.)

I mention Evacuation Day because I thought about it when I read the opinion from the Ninth Circuit that came out this morning.  It's not about foreign troops; instead, it's about Jorge De La Mora-Cobian.  He's a guy from Mexico who came to the United States but got kicked out five years later for getting a DUI.  He stayed in Mexico for over a decade and made a life there.  But on July 17, 2016, he presented himself at the San Ysidro port of entry -- alongside his wife and three children -- and asked for asylum.  He said that he'd been kidnapped by members of the Nueva GeneraciĆ³n gang in Mexico, who cut off one of his fingers and sent it to his wife with a ransom demand.  (I suspect that this is a pretty credible claim, since it's hard to fake missing a finger.)  The gang came back and demanded more money, and two days later, Mora-Cobian and his family came to San Ysidro and requested asylum.

What does all this have to do with Evacuation Day?  Maybe not a massive amount, since Mexican troops have never really invaded the United States.  (Indeed, vice-versa.)  But the holiday popped into my head because on the actual evacuation day in 1783, George Washington celebrated the event with a dinner at Fraunces Tavern in New York City, alongside around a hundred well-wishers.  At that event, there were a series of toasts -- thirteen, in all.  The "Thirteen Toasts".  What Washington and his crew were the most thankful for after years of bitter warfare and upon finally obtaining liberty and freedom in this new nation.

Most of the toasts were to the usual suspects (at the time):  the new United States of America, the King of France (no small help in the war), the King of Sweeden (sorta helped), things like that.  But the eleventh toast was what popped to my mind when I read today's case:

"May America be an asylum to the persecuted of the Earth."

You can see why Mora-Cobian and his family want to come to America.  There's no doubt that they're persecuted.  Maybe not by an actual government, but persecuted regardless.  But we don't grant him or his family asylum.  We instead leave them to the vicissitudes of Mexico, sans a finger.  And when, with understandable fear for what will happen there, he comes to the United States anyway, we put him in prison, and the Ninth Circuit affirms.  (All that's in addition to the time he spent in detention in Georgia, Arizona and California when he originally requested asylum.)

Which may well be what the law requires.  On the legal merits, it's tough to find fault with Judge Tallman's opinion.

But my mind nonetheless hearkened back to Washington's celebratory toast.

So I thought I'd mention it.  Particularly as we return from the holiday weekend.

Wednesday, November 24, 2021

Nababan v. Garland (9th Cir. - Nov. 23, 2021)

Sometimes -- perhaps often -- the company of the friends you keep affects your worldview.  Even if you're a judge.

I'm agnostic as to whether Judge VanDyke's experiences are more accurate than mine.  You be the judge.

It's a case about whether the BIA properly evaluated changed circumstances in Indonesia, which in turn required the Ninth Circuit to decide if evangelical Christians were treated worse than different minority religions in Indonesia.  The majority thought that might well be the case.

But in Judge VanDyke's view, separating "Christians" from "evangelical Christians" was a "distinction without a difference."  Based on his experiences, Judge VanDyke believes that "the vast majority, if not all, Christians" attempt to convert other people to the Christian religion; i.e., are evangelical.  And Judge VanDyke expresses this belief in his opinion three separate times; it's not inadvertent.

My own experience is that (1) people commonly use the term "evangelical Christian" to mean something very specific and different from just your run-of-the-mill Christian, and (2) most -- or at least, many -- people of the Christian faith do not, in fact, actively seek to proselytize and convert people to the faith.

Now, I grew up in Virginia, whereas Judge VanDyke was raised in Montana.  And, unlike Judge VanDyke, before law school, I did not get a bachelor's degree in theology from Bear Valley Bible Institute.  Given our different backgrounds and life experiences, it might not be radically surprising if the qualities of the (many, many) Christians I've encountered in my life -- including but not limited to my entire family and extended set of relatives -- are perhaps a little different in the extent of their proselytizing than those at, say, the Bear Valley Bible Institute, or in certain conservative circles more likely to be frequented by Judge VanDyke than by me.

One might perhaps make a lesser claim than Judge VanDyke does, and assert that proselytizing is a tenet of the Christian religion. But I'm quite confident that some Christians take that interpretation quite a bit more seriously than others.  In any event, that something's a purported tenet of your religion does not necessarily mean that one actively practices it; for example, saying that all Catholics "abstain from premarital sex and don't use birth control" is fairly wildly inaccurate, at least in my experiences.

It's not unusual to see a judge's worldview reflected in his or her opinions.  But you don't generally see that principle extend to somewhat verifiable statements of fact.

Tuesday, November 23, 2021

City of Oxnard v. County of Ventura (Cal. Ct. App. - Nov. 23, 2021)

Justice Tangeman may well be right that this is what California's EMS statute requires. That's what the trial court thought, and on appeal, the panel unanimously agreed.

But, if so, my intuition is that the principle behind the statute might be silly.

The EMS Act says, essentially, that after 1980, if a city joins a joint powers arrangement with another city or county for the provision of ambulance services, it can't withdraw from that agreement.  Ever -- at least according to the Court of Appeal.

So no matter how terrible the ambulance company, no matter how abysmal the service, and no matter how deprived residents of the City are for ambulances, the City has no recourse.  Only the relevant county can decide -- and as long as the county is happy, that's the end of the matter.

Here, the City of Oxnard is understandably doesn't like the existing ambulance provider.  The city has a lot of poor people, whereas the county has a lot of rich people.  The ambulance company (allegedly) loves to hang out in the rich areas, and hate to pick up people in the poor areas.  The response time for calls in the city is a lot longer than the response time for calls in the county.  The "floater" ambulances were twice as likely to be located in rich areas than in poorer areas.  Delays in responding to city calls were twice the number of delays in responding to calls in the county.  Stuff like that.

No matter.  The county loves the ambulance company.  (Perhaps you can see why.)  But the city can't ever withdraw from the agreement and hire its own provider.  Again:  Ever.

I get the principle that there needs to be some stability in ambulance services so that companies can make investments and the like.  But it'd be more than sufficient for the statute to allow cities to leave after five or ten years or so.  That's more than enough time to recoup your investment.  Plus, the statute allows the county to leave whenever it wants, so that's hardly proof that companies need an infinite contractual period for sufficient stability.

Seems to me the statute should be amended.  The Court of Appeal didn't (at all) suggest that, so I thought I would.  Seems to me like there's a classic agency problem here; cities have limited input, so get hosed.

Good luck getting an amendment through the lobbyists for counties and ambulance companies, though.  Yet another agency problem.

Friday, November 19, 2021

Goulart v. Garland (9th Cir. - Nov. 18, 2021)

There are three opinions in this Ninth Circuit case.

Judge Paez writes a short (four paragraph), moderate opinion that affirms the denial of a request to reopen an immigration case; as a result, the petitioner stays deported.

Judge VanDyke concurs in the judgment and authors a lengthy discourse, and Judge Korman (sitting by designation) authors a dissent.

Here's a brief snippet from the debate between Judges VanDyke and Korman:

Judge VanDyke: "[O]ne wonders: Why would one champion charting a completely new and unsupported path of legal reasoning just to avoid the lawful removal of a convicted burglar? I agree with Judge Korman’s laudable paean to doing equal justice. But in our system of government that means respecting the laws passed by Congress, not bending them—including our nation’s immigration laws." (emphasis in original)

Judge Korman: "Judge VanDyke questions why I have bothered to “champion” the cause of a convicted burglar. The answer should be obvious. The judicial oath, which was adopted in the Judiciary Act of 1789, requires us to “administer justice without respect to persons, and do equal right to the poor and to the rich.” See 1 Stat. 73, 76 (codified at 28 U.S.C. § 453). We take such an oath, which derives from biblical teachings, see Deuteronomy 1:17, so as not to be blinded by our like or dislike of the parties. We are not called to decide whether Goulart is a good person, but rather whether a person who has been banished from the United States without legal justification should be permitted to seek to return. The Supreme Court has held that the precise statute under which Goulart was deported violates the Constitution. Principles of law and equity require that he be permitted to move for reconsideration in this case."

Thursday, November 18, 2021

Blizzard Energy v. Shaefers (Cal. Ct. App. - Nov. 18, 2021)

Just a couple of quick thoughts about today's opinion from the Court of Appeal, which affirms the addition of a judgment debtor but remands to see if the wife is an innocent spouse who should't be added:

(1) I think the opinion should add the word "allegedly" before its discussion of the separation agreement stuff. The wrongdoing husband owned 50% of an LLC -- the one added as a judgment debtor -- and his wife owned the other 50%. The trial court found that the wife's interest in the LLC could be included in the debt (since it was community property), but the Court of Appeal wasn't so sure. The panel said that since the parties separated in 1996, and all the fraud happened thereafter -- and didn't actively involve the wife -- maybe she's an innocent spouse and in the interests of justice her interest in the LLC shouldn't be attached.

Maybe. But the Court of Appeal repeatedly refers to their separation agreement, the fact that they lived apart since then, and all this other stuff as an established fact. Maybe it is; I can't find the decision below. But the trial court allowed the wife's interest to be attached, so I'm not at all certain that the trial court made a factual finding on any of those factual points recited by the Court of Appeal. And there's certainly reason to suspect that, uh, maybe those facts are not true; in particular, the fact that the parties allegedly separated in 1996, yet continued to own a boatload of companies together, didn't actually file for divorce until 2019 -- after the fraud judgment was entered and collection efforts began -- etc. etc.

There's a problem sometimes when the appellate court makes a statement of fact that supports its decision and then remands, and then the party that originally lost below says: "Law of the case!  You can't dispute that fact any longer, since the Court of Appeal found it was true" even though what the Court of Appeal really meant so say was that one party said it was true and it might well be true.  So you gotta be careful about that.

And maybe the opinion is here, and maybe it's not.  Just be careful.

(2) Justice Yegan's opinion makes a joke in the first paragraph.  Or a funny reference or whatever.  He says: "Blizzard Energy, Inc. [] invested in a tire pyrolysis project in Kansas. A Kansas jury returned a $3.825 million fraud judgment in favor of respondent and against appellant Bernd Schaefers (Schaefers). We are not in Kansas anymore. The fraud judgment was entered in California. The instant appeal flows from the California trial court’s decision to add a judgment debtor pursuant to the “outside reverse veil piercing” doctrine."

Thank you, Dorothy.  I admittedly smiled.  But I was also thinking that the Kansas courts themselves gotta be really tired of that one.  (According to Westlaw, that line's in twenty different opinions, and 70-plus law review articles and the like.)

(3) I made a quick search to find out more about the underlying fraudster, Bernd Shaeffers. Among other things, he was apparently a producer on the the 1984 film version of The NeverEnding Story -- or at least the names, which aren't totally common, are the same; I'm not actually vouching for whether they're the same person or not. Regardless, the reference to that movie reminded me of my favorite lawyer joke from The Simpsons.  (Homer wants to file a false advertising suit against an all-you-can-eat seafood place that eventually kicked him out for eating too much, and here's what his classic boob of a lawyer says.) Classic.

Tuesday, November 16, 2021

Argonaut Ins. Co. v. St. Francis Medical Center (9th Cir. - Nov. 16, 2021)

Here's a Ninth Circuit opinion that only the hard core civil procedure geeks will enjoy:  Whether the filing of a conditional counterclaim in response to a federal declaratory relief action obviates the district court's common law discretion to decline to exercise jurisdiction over such claims.

Exciting, eh?

Okay, but you know what is exciting about the thing?  The attorney for the appellant is from a firm in Minneapolis; not something you see in the Ninth Circuit every day.  And the underlying litigation, as well as the oral argument in the Ninth Circuit, was in . . . Hawaii.

Going from snowy Minnesota in February 2021 for a Ninth Circuit oral argument in Hawaii.  That does not suck.

Even if, as here, you lose.

Monday, November 15, 2021

Noble v. Superior Court (Cal. Ct. App. - Nov. 10, 2021)

The (successful) attorney for the real party in interest in this opinion is Skye Emery. That's a classic millennial name: Skye.  I wondered how many lawyers in California shared that first name.

The answer:  Nine.

Not surprisingly, almost all of them joined the bar within the past decade (i.e., after 2010); indeed, all but two.  Apparently the name "Skye" became popular after a character named "Skye Chandler" was added to various popular soap operas in 1987.  If you're born -- or conceived -- around or after 1987 or 1988, you typically graduate law school and pass the bar post-2010.  Makes sense.

The earliest California "Skye" attorney -- Skye Gibson -- joined the bar in 1998 and is now inactive and lives in Jamaica Plain, Massachusetts.  The other pre-2010 "Skye" involves a very sad story:  that of Skye Donald, who joined the California bar in 2004, started teaching legal writing at UCLA Law in 2009, was diagnosed with a brain tumor the next year, and succumbed to cancer in 2006, at the age of 43.

I'm sure we'll see more California attorneys with the first name of "Skye" at some point, though the most recent admittee was five years ago, in 2016.  I guess there was a big blip of popularity there once the soap opera character was added.  (Though, interestingly, the name appears to have stayed popular thereafter, but not for future attorneys.  I know there's a small sample size here, and we're only talking about a single name, but I wonder if parents who give their baby -- or at least daughter -- a newly-popular first name are more likely to end up having that child become an attorney than parents who give that same first name to babies who are born when that name is still relatively novel but a little well-worn.  Maybe there's a slight demographic, or educational, or parent-raising difference between the two groups?  An area just waiting for extensive empirical research, I'd say.)

Finally, yeah, yeah, there are (relatively) plenty "Skyler" and "Skylar" attorneys -- and even a couple of "Sky" ones -- but those don't count.  (Plus, even among those names, the earliest member of the bar was in 1998).  We're only talking "Skye" today.

Friday, November 12, 2021

George v. eBay (Cal. Ct. App. - Nov. 12, 2021)

I get it, I get it, I get it:  the Court of Appeal is sick and tired of this long-running and oft-appealed serial litigation, and thinks that eBay should win.  Moreover, there's a lot to that:  the plaintiff does indeed seem to be mostly complaining merely about the nature of the contract to which it agreed.

Mind you, there's a lot for buyers to complain about there; e.g., the fact that eBay pretty much always refunds purchases if the buyer is unhappy for any reason, which very much helps fraudulent buyers and hurts the sellers.  But that's largely a reason just to not sell on eBay, which is one's choice.  There are other platforms and other ways to sell.  The Court of Appeal, understandably, doesn't think that satisfies the legal standards for unconscionability.  Moreover, it's tired of seeing this same litigation on behalf of various different eBay buyers again and again.

The thing is this, though:  in the process of getting rid of what you think's a meritless lawsuit, you've got to be extra careful not to make bad law.  Particularly on appeal.

My thought in this regard relates to how the panel gets rid of a couple of different causes of action -- a tiny fraction, mind you, of the twenty-plus causes of action that plaintiff pleads.  Here's what Justice Richman says about those claims:

"The 12th, 13th, and 14th causes of action are styled respectively “Breach of Contract for Hiding Plaintiffs’ Listings,” “Intentional Interference With Prospective Economic Advantage re Hiding of Listings,” and “Deceptive Business Practices in Violation of Business and Professions Code section 17200.” As indicated, all are based on the fundamental premise that eBay hides listings, “secretly,” “completely,” and on a “regularly recurring basis.” As appellants’ brief puts it at one point, eBay allegedly makes certain “listings completely invisible and not capable of being seen by prospective buyers.” . . . 

To begin with, at no place do appellants identify any listing on eBay that was made “completely invisible” or “completely hidden.” Their brief does make the conclusory assertions that “all” of their listings were hidden “for a substantial period of time,” and that they “had no chance of selling their items” through the eBay website. But while the SAC alleges “many” listings were hidden, it lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred. Instead, the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim. (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219–1220.) Again, Judge Hernandez’s holding is spot on: “the ‘hidden listing’ allegations remain deficient . . . [w]ithout more specific factual allegations eBay cannot possibly determine whether any listings were actually not displayed (i.e., were ‘hidden’) or if so, why.”

Not only that, facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.” Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”

On those bases, the Court of Appeal dismisses, inter alia, the claim for breach of contract.

Let's unpack the various different reasons the Court of Appeal gives for this dismissal.

First, the panel says that the complaint alternatively says that "many" of the listings were hidden, but elsewhere says that "all" of their listings were hidden "for a substantial period of time."  Well, okay, that might be a little unclear, but those claims aren't totally contradictory; I presume what they mean is that sometimes, all of their listings were hidden, and that sometimes, only lots of them were hidden.  I could easily see that being a breach of contract if true.  Plus, last I checked, plaintiffs were permitted to plead in the alternative anyway.

Then Justice Richman says that there's a lack of detail, and that seems to be one of his bigger points:  the complaint "lacks any allegation regarding any specific listing that could not be found or when the hiding allegedly occurred."  Okay, maybe that's a reason to order a more definite statement, but that's not the basis for dismissing a complaint with prejudice. Plus, since when am I required in a complaint to list every date and item with particularity?  If I say in a complaint:  "Defendant repeatedly punched me in the face," that states a claim:  I'm not required to say how many times, or on what days, or with what instrument, or on what part of my face.  We're pretty much all about notice pleading here in the United States -- unlike those stinking English we kicked out back in the eighteenth century -- and rely on discovery to flesh out those details, not the pleadings.  Defendant can deny the allegation, or deny it for lack of information and belief, and we move on.  That on "omitted details" in this regard is fairly clear; or at least it was before this opinion, which sort of mucks it up in the service of the purportedly good cause of getting this particular case kicked.

Then the Court of Appeal says that claim is deficient because "the SAC theorizes that because sales allegedly decreased, listings were hidden, ignoring the innumerable other reasons that would readily explain why their sales may have fluctuated. Such speculation cannot support a viable claim."  That's even an even more severe (and worse) pleading requirement than the Supreme Court created in Tombley and Iqbal -- and that the California courts have (tellingly) rejected.  You don't at the pleading stage come up with defenses for the other side sua sponte and kick the complaint on that basis.  If the complaint says "Defendant did X and it harmed my business," then that's a factual claim, and you accept it for purposes of a demurrer.  Plus, it's WAY plausible that if you in fact hide someone's listings, their sales will go down.  Indeed:  Duh!  Of course they will.  If there's an alternative explanation, and eBay can prove that hiding the listings actually made sales go up, or that there's a different explanation, great, they can establish that in an MSJ or at trial.  We don't bounce complaints on the pleadings simply because a judge thinks that the damage allegations of the plaintiff are perhaps overstated or come from an alternative source.

Then there's the fourth basis for dismissal:  that the "facts alleged elsewhere in the SAC undermine the existence of any such practice. For example, plaintiff Cobb alleges he was initially unable to find some of his listings but found them “several days later,” again rebutting plaintiffs’ claims of listings being “completely hidden.”  That's a good example of being perhaps way too one-sided.  The complaint says that some listings were hidden for a while.  Maybe the listings here were gone for only a couple days, but if that's true, and if the contract requires them to be always visible, then that's a breach -- and the fact that the hidden listings were visible several days later doesn't mean that plaintiff is wrong or has contradicted himself or that something like judicial estoppel or whatever the Court of Appeal thinks it's relying on here permits the dismissal of the complaint.  No way.

Which leaves only the final sentence: "Were all that not enough, appellants’ brief acknowledges that eBay has the “contractual right to downgrade visibility.”  Okay.  Maybe that's a defense, right?  But surely we need more than just this hint, no?  Let's hear about the contract.  Does it really allow eBay to totally hide the listings?  If so, great, kick the thing.  But we'd need to know the actual terms of the contract -- not merely a five-word snippet from a brief -- analyze how they interact with the other contractual terms, evaluate whether totally removing listings is actually a breach (does it merely "diminish visibility" or do something more serious?), etc.

I'm not saying that plaintiff's got a great breach of contract claim.  Maybe it does, maybe it doesn't.  But to figure it out, I'd definitely need more than what I have here.  More importantly, I definitely don't want litigants or trial courts citing or relying on this case for the propositions for which it facially seems to stand; e.g., that your complaint gets dismissed if you don't provide dates or itemizations, that you get bounced if your complaint doesn't affirmatively negate any possible alternative explanations for how you were damaged, etc.  That'd be much worse systemically then anything this tiny little case will ever do to anyone -- particularly if we can get it bounced on the actual merits because it's not a breach since the eBay contract allows this stuff.  (Personally, if eBay did, in fact, totally hide someone's listings for absolutely zero reason, I can in fact see that as possibly being a breach -- though I suspect that's not what in fact happened, and that if listings were indeed hidden, it was probably for a reason spelled out in eBay's contract.  But, again, that's a matter for discovery or the merits, not the pleadings.)

As they say, bad cases sometimes make bad law.

Especially if you're not careful.


Thursday, November 11, 2021

Haytasingh v. City of San Diego (Cal. Ct. App. - Nov. 11, 2021)

The Court of Appeal's opinion in this case -- from lovely San Diego, and involving our lovely beaches and lovely surf -- came out back in July.  Today, the California Supreme Court denies review, but a majority of the justices (four) author a statement concerning the denial of review to urge the Legislature to look at the underlying statute and potentially change it.

That's super rare.  It's totally consistent with the Court of Appeal's opinion, in which the justices also told the Legislature that it might well want to take a look.  So I suspect it'll have a real impact.  (And should.)

But it's definitely something you don't see every day.

(Just like, I'll add, you definitely don't see a justice on the Court of Appeal quote a line from Star Trek's Spock in the opinion, which Justice Dato does in footnote 9 of his concurring opinion.)

Tuesday, November 09, 2021

Kremerman v. White (Cal. Ct. App. - Nov. 9, 2021)

Justice Stratton gets it spot on here.  No way the default judgment should have been entered.  No way.  There simply wasn't proper service.

It's not often you see a landlord-tenant dispute in the Court of Appeal.  But then again, this isn't your usual rental.  When I was reading the facts, I thought that I was confused, since it talked about a $16,000 yearly rent and a $25,000 security deposit.  Why would anyone pay a $25,000 deposit for a rental that only costs roughly $1,500 a month?

Oh, my bad.  It's a year-long lease, but it's $16,000 a month.  Got it.  This is not your ho-hum rental.  Even in Studio City.

The other thing that popped into my head was a line in the opinion from the defendant about why she was not at home during one of the various service attempts: "She stated she was out of town during the process server’s third stake-out on May 14, 2019, as she was in New York City to appear on the Wendy Williams show."  Oh.  The Wendy Williams show, eh?  Defendant must be famous (in addition to wealthy).

So I go back and look at the caption.  Her name is "Angela White".  Never heard of her.

So I hit up Mr. Google.  Which -- let just warn you -- has a very NSFW website as its first result.

What I should have done was simply read all the footnotes in the case first.  Justice Stratton explains in one of them:  "The parties interchangeably refer to appellant as Angela White or Blac Chyna, her professional name. We refer to appellant by her legal last name, White."

Oh.  Blac ChynaHer I've heard about. The whole kid-and-crazy-relationship-with-Rob-Kardashian thing.  Plus the modeling and . . . other stuff.

Anyway, Ms. White wins.  As she should.

Plus, to be honest, the landlord sounds like a . . . not good person.  His name is Michael Kremerman.  He rents the place to Ms. White, she re-ups the lease, and then she says she wants to leave early because she's bought a house, and he says, fine, though you'll still owe four months of rent if I'm not able to find someone to rent the place.  (The agent's actual words in the email were:  “The owner is happy to let [White] out of the contract, but as you may know, she is obligated to pay rent through the term of the lease, or until the Landlord finds new tenants that are willing to pay the same amount that she’s currently paying.”).  Cool, that's the law.

Then Ms. White moves out, and the landlord charges Ms. White four months of rent, saying that he was unable to lease the place.  (Then he takes her default, and garnishes her bank account.)

But check out what Ms. White's attorney subsequently finds (and presents to the court):

"White included as an exhibit the Zillow history of the Studio City property, which showed that on December 6, 2018, Kremerman listed the property for sale for $4.95 million, and then on December 7, 2018, he listed it for rent for $22,500 per month, “over $6,000 per month more than [White] had paid for rent.” On December 17, 2018, the rental listing was removed. On January 9, 2019, the property was sold; escrow closed on March 5, 2019. White argued “[h]ad [her] former landlord instead listed the [property] for rent . . . for $16,480, he would have been able to find a new tenant very quickly.” She also contended Kremerman improperly sought future unpaid rent for the month of March 2019 when Kremerman “no longer even owned the leased premises” as of March 5, 2019 when escrow closed."

When I hear that, I'm begging to find a way to reverse the default.  Which is the right result anyway.

Because, IMHO, the landlord is not un-sleazy.

Monday, November 08, 2021

People v. Revels (Cal. Ct. App. - Nov. 8, 2021)

I've seen (or read about) a lot of weird things happening in court; clients assaulting their lawyers, lawyers going crazy in front of the judge, witnesses freaking out, etc.

But I've never heard of (1) a juror looking like she's fallen asleep (okay, that one happens a lot, but wait for it . . .), (2) the trial judge calling the juror's name four times, still with no response, (3) a doctor who's an expert witness on the stand at the time going over to the juror and checking her out, and then (4) after examining the juror, declaring: "She doesn't have a pulse."


Given the various admonitions and other curative efforts here, the Court of Appeal holds that there was no prejudice in not ordering a mistrial.

Still:  Freaky, eh?

P.S. - The juror ended up just fine, thankfully.

Thursday, November 04, 2021

South Coast AQMD v. City of Los Angeles (Cal. Ct. App. - Nov. 4, 2021)

Here's what I was about to write yesterday about this opinion before I ran out of time and had to teach class (and then meet with students afterwards during office hours):

"Here's the first paragraph of this opinion.  Can you tell who wrote it?

'A case within a case can arise when a legal malpractice suit accuses lawyers of poor work. The main case is the malpractice suit: were the defendant lawyers’ performances deficient? The case within the case is whether the lawyers’ performances mattered. If the underlying suit on which the lawyers worked lacked merit, then their alleged malpractice could not have had an impact, because the client would have lost anyway. The issue is causation: whether possible malpractice could have caused harm. (See Viner v. Sweet (2003) 30 Cal.4th 1232, 1239–1240.) This appeal follows that pattern.'"

I also had some tangential comments about the merits of the case, but whatever I ran out of time.  In any event, merits aside, I was surprised that I was able to figure out who wrote the opinion -- which I scrolled down to right after reading the first paragraph -- even before I looked at the caption to see what district it was from and even before I read anything else.

But then, today, I read this opinion, which had the following opening paragraph:

"A labor union moved to intervene in an environmental dispute about the Port of Los Angeles. The union is the International Longshore and Warehouse Union, Locals 13, 63, and 94 (the Union). The trial court denied the motion because concerns about expanding the case’s scope outweighed the Union’s interest. We will introduce the many actors and events in this multipolar environmental dispute by using the allegations of the petition filed by South Coast Air Quality Management District (the Air District). Then we explain why denying permissive intervention to the Union was proper. Statutory references are to the Code of Civil Procedure."

At which point I thought:  "Hmmm.  I'm pretty sure I know who wrote this one as well.  Same person as yesterday, right?"

And then, when I saw the next paragraph, I was certain of it:

"The Port of Los Angeles is the busiest seaport in the Western Hemisphere. It is critical for U.S. trade with Asia, and there is a lot of trade with Asia."

I honestly can't put a figure on precise why this jurist's writing style is so unique.  Sure, in the last of those paragraphs, there's the whole "short, pithy statements of obvious fact that are kind of funny" thing going on, and that's a dead giveaway.  But those first paragraphs don't have much of that, yet, still, of the 100+ justices on the Court of Appeal, you can pretty reliably figure out which one is writing stuff like that even from a single paragraph.  (Or at least you can after a while, if and when you read every single published opinion over the years.)

Anyway, it's a unique writing style that's not mine, but that (mostly) works for me as a reader.

It's this jurist, by the way.  If you didn't already know.

Tuesday, November 02, 2021

Mitchell v. Las Robles Medical Center (Cal. Ct. App. - Nov. 2, 2021)

Appellant tries to overdose in 2017 by taking 60 Naproxen (Aleve) tablets.  She goes with her husband to the emergency room at 7:23 a.m. and has already vomited twice.  An ER doc takes her history, and a half hour or so later a nurse puts an IV in her arm.  Nearly two hours later, appellant walks to the toilet with her husband and collapses, injuring her face and knee in the fall.  She files suit over these injuries in 2019.

Justice Yegan is right that this lawsuit is barred by the one-year statute of limitations for medical negligence.  That's the underlying claim, so the statute applies.  The trial court got it right too.

That said, it's not exactly a great look for Las Robles Medical Center.  As far as I can tell from the opinion, they basically didn't do anything at all for the patient for over a couple of hours after she shows up after a suicide attempt.  As far as I can tell, no medications, only a cursory review by the doctor, etc.

I know that ERs are often backed up, but seriously?

At least the hospital wins the lawsuit.  Even though it's far from the best advertisement for its ER.

Monday, November 01, 2021

Chase v. Wizmann (Cal. Ct. App. - Nov. 1, 2021)

I might be a little biased about this one -- at least I'm up front about it -- because my house has both a pool (and hence a pool pump) as well as air conditioning (though, to be honest, we haven't used the AC in at least three years).  So when I first read the facts of this case, and saw that it was a lawsuit brought by someone in a tony Hollywood Hills residence against his neighbor for "private nuisance" claiming that the neighbor's AC pool pump were allegedly too loud, I thought:  "Get real, dude.  And a life." 

(Plaintiff and his wife compared the noise to "a 'jet engine' or 'airport runway,'" which, I mean, come on, yes, it's a little annoying, especially if the AC fan and/or pool pump is near your bedroom window, but if you really think that's like being on an airport runway -- well, you clearly haven't been on a lot of airport runways.  Sample tesimony:  "Sylvia Chase likewise declared it was 'unbearable and lasted for hours,' 'like someone was gunning a jet engine under our window.'")

Given that (admittedly unfair) predisposition, I was a little surprised that the trial court granted a preliminary injunction against running the stuff, and that it ultimately ordered the equipment moved to the other side of the defendant's house.  Similarly, I was a bit surprised that the Court of Appeal affirmed.  Not stunned -- standard of review, after all -- but a bit surprised.

But then I read that various experts on both sides measured the sound levels coming off the stuff and discovered the following:

"With two condensers, the filtration and spa pumps running, the waterfall running, and the spa heater running, Chase’s expert measured 57 decibels in the backyard and in the side yard, and 51 decibels at the patio door; Wizmann’s expert measured 57 decibels in the backyard and in the side yard. Both sides agreed that many of these decibel levels still exceeded the limits of 45 decibels at night and 55 decibels during the day allowed by LAMC section 112.02, subdivision (a)."  As well as that "Chase hired an acoustical expert who measured the equipment noise at 65 decibels on the afternoon of June 9, 2020. Chase also obtained a personal sound level meter to monitor noise levels and measured as high as 73.5 decibels during the day."

I will say:  57 decibels sounds like a lot.  Especially since the LA municipal code seems to limit noise during the day to 55 decibels, and during the night to 45 decibels.

But it turns out that conversations in a restaurant, or background music, or even an ordinary AC unit at 100 feet are 60 decibels loud.  Geeze.  Does that mean that no one in LA gets to run air conditioning at night -- or even during the day (since 60 is above 55)?  Seems crazy.

I get it; these neighbors hate each other, and are rich, so okay, they sue each other.  But I was surprised that the trial court and Court of Appeal were really giving this one a ton of credence.

Though I wonder if this part of the opinion had anything to do with the ultimate result:

"Since 2015, Wizmann has operated his property as a short-term rental. . . . In June 2018, the City of Los Angeles cited Wizmann’s property as a public nuisance due to repeated large, unruly parties by renters, illegal parking, burglary at the property, refuse in the street, and neighbor complaints of public urination, public intoxication, fistfights outside the property, and other illegal activity. The city found Wizmann in violation of multiple sections of the Municipal Code, including LAMC sections 41.57 (Loud and Raucous Noise Prohibited), 116.01 (Loud, Unnecessary, and Unusual Noise), and 112.01, subdivision (b) (amplified music in residential zone audible beyond 150 feet)."

Is this legally relevant to whether a regular old AC unit and pool pump are really private nuisances?  Not at all.  Does it perhaps nonetheless affect the way a judge might look at the case?  It might just.

Oh, and I was looked to see if I could find out anything more about the defendant online to explain just why this dispute received the treatment that it did.  After doing so, I found the following line in the LA Times -- to be clear, I'm not saying it's the same "Benjamin Wizmann" as the defendant, 'cause I have no independent knowledge of anything; all I know is that the names and spelled the same and that they both seem to have residences in the Hollywood Hills.  But here's the report:

"Benjamin Wizmann, 41, was arrested at his Hollywood Hills home last week on suspicion of importing almost half a million ecstasy tablets."

Well then.  That's probably some additional color as well.  (And, again, I'm not saying it's the same "Benjamin Wizmann from Hollywood Hills" in both cases -- though, if it was, that might explain the following only-somewhat-cagey line from the Plaintiff's answering brief in the Court of Appeal:  

"Wizmann is a convicted felony drug dealer who regularly flaunts the law.  [Cites]

Anyway, here's what I know:  Even an ordinary air conditioner and pool pump can be too loud. I knew they could be too loud when they were damaged or worn or whatever.  Apparently, even when they're used as intended, your neighbor can potentially sue you and win.

Good to know.