Wednesday, May 18, 2022

CPC Patent Technologies v. Apple (9th Cir. - May 18, 2022)

Judge Smith describes the plaintiff in this litigation as follows:

"CPC is an investment company that recently acquired a portfolio of patents related to biometric security. In February 2021, it sued Apple in the Western District of Texas, alleging that several Apple products (including “iPhones, iPads, and personal computers”) infringe patents in the portfolio."

That's certainly kinder than calling the plaintiff a patent troll.

Monday, May 16, 2022

U.S. v. Allen (9th Cir. - May 16, 2022)

You have to wonder what the backstory is on this one, no?

During COVID, lots of jury trials were shut down (obviously), but then they (slowly) restarted. By September of 2020, in the Northern District of California, criminal jury trials were back on calendar, and judges there -- like judges all across the country -- had to decide how to handle them. Some of them had everyone wear masks, some of them did live video feeds into a separate room, etc.

There was a set of general orders in the Northern District that said that the only people allowed in the courtroom were people authorized to be there. But there's also a constitutional right for the public to witness criminal trials. We don't, after all, have trials in secret. So how to balance the relevant interests.

Like I mentioned, most courts had said, okay, there's a global pandemic, so we're going to do things a little differently, but still, people were allowed to actually witness the trial. Maybe not in person, maybe over a (sometimes) sloppy video feed, but still, allowed to watch.

But Judge Gilliam -- at least in this case (and presumably lots of others) -- went a different path.

Judge Gilliam understood that we couldn't have secret trials. But he also was worried that a video feed that was uncontrolled might let people record the thing, which he didn't want. (Mind you, that'd be illegal, and maybe that's the solution -- just warn and/or punish -- but that's a separate point.) At the same time, he also didn't want people coming into the courthouse to view a collective video feed; too much of a potential superspreader event.

So Judge Gilliam decided that he (1) wouldn't allow witnesses to attend, and (2) also wouldn't let them watch via video. Anyone who wanted to watch would only get an audio feed. Nothing else.

The Ninth Circuit holds that that's unconstitutional. There's a right to actually see the trial, unless it's a special case. And the fear that someone might (illegally) record the video doesn't count. 

So the conviction here gets reversed. Just as, presumably, all the other convictions that took place (in the face of a contemporary objection, anyway) in Judge Gilliam's courtroom during the relevant period.

Which inexorably leads to the question: Why did Judge Gilliam decide to risk such a result? Why did he elect a process that was much more restrictive of public access than the vast, vast majority of other judges?

It'd be one thing if Judge Gilliam was super old, and hence uniquely concerned about getting COVID himself. But he's not; indeed, he's basically the youngest judge in the entire Northern District. (Judge Chhabria may, I believe, be a month or so younger, but still). The decision would also make sense if Judge Gilliam was historically hostile to the press or witnesses or the like, but I have no reason at all to believe that's the case.

So why make a call -- why risk all these convictions -- just because you're concerned that someone might illegally make a recording of the video feed of a routine criminal case? A call that the other judges weren't making in identical contexts?

Maybe others know. I don't. No clue.

Regardless, I suspect this is the first of a large number of cases that'll get reversed and remanded on identical grounds. So stay tuned.

Friday, May 13, 2022

Hassett v. Olson (Cal. Ct. App. - May 13, 2022)

I don't know much about the judiciary up in El Dorado county, but this is most definitely not a good look.

It was bad enough when I read the beginning of the case, in which a former trial judge becomes a lawyer on a matter in which he participated personally and substantially as a judge (notwithstanding the express ethical rule that says you can't do that). That seemed fairly shocking to me. I understand that trial judges sometimes retire, and although many go into ADR, some go back into practice. I'd have thought that such judges would be incredibly scrupulous about not working on anything even remotely associated with cases on which they were involved as a judge. Apparently not. Hence the disqualification order here.

But then, around a dozen pages in, I read that the judge actually entered the case the day after a tentative decision was posted against his client -- and, as the Court of Appeal found, the judge's "association and recusal request [an attempt to recuse the judge who posted the tentative] the night before the hearings 'were actions taken by the retired judge in this case intending to disrupt the proceedings in which tentative rulings had issued in favor of Hassett against the aligned interests of Bass and Judge Bailey’s new client Olson.'”

Wow. That sounds even worse.

Wednesday, May 11, 2022

Jones v. Bonta (9th Cir. - May 11, 2022)

California prohibits the sale of semiautomatic rifles to anyone under 21. Plaintiffs sue, claiming that the statute violates the Second Amendment. Plaintiffs move for a preliminary injunction, which the district court denies, and plaintiffs appeal. When it reaches the Ninth Circuit, the panel that's drawn includes a district court judge sitting by designation from the SDNY and . . . two Ninth Circuit judges appointed by President Trump, Judges Nelson and Lee.

You can probably figure out how the opinion turns out just knowing those facts.

Look for an en banc call shortly.

Tuesday, May 10, 2022

Martz v. Horazdovsky (9th Cir. - May 10, 2022)

Sometimes law is baffling.

In the abstract, maybe it made sense -- at least historically -- to create an arcane rule in maritime law that the maximum liability of the owner of a ship is the value of the vessel and its cargo. Back in the day, we wanted to compete with Great Britain in shipbuilding, and also wanted to protect the vital industry that shipped export commodities overseas. So even if the ship was boarded, or struck another vessel, or lost its cargo, the owner could be sure that the worst that would happen is that they'd lose the ship and whatever it was carrying. Vital protection (allegedly) for a vital industry.

But, to be clear, by "back in the day" we're talking like "back before the Civil War." That's when Congress enacted the underlying statute.

Is shipping still important? Of course it is. Witness the whole "supply chain" stuff. But economic reality is far more rational these days. There are things like insurance and diversification and risk-sharing. In turn, the law has -- thankfully -- progressed far beyond anything we understood in 1851. We now understand the social utility of negligence rules, efficient cost avoidance, and things like that. The socially deleterious blunderbuss rules of the past have, in most areas, been replaced by legal principles that make more sense. That make the world an unambiguously better place.

Admittedly, if the outdated rules of admiralty law remained in place only to distribute risk between, say, Apple and a ship owner who's toting a boatload of iPhones across the Pacific, I wouldn't especially give the issue much thought. The parties are sophisticated. They can contract around most, if not all, of the rules they don't like. And that market's generally efficient anyway; if the shipper gets a default benefit from some legal rule, then you can be sure that Apple's going to demand reciprocal benefits on its end. The allocation of risk between two sophisticated international shippers isn't something about which I'm profoundly concerned. The market has a way of (generally) working these things out on its own.

But the reach of contemporary admiralty law isn't confined to such areas. Take today's opinion, for example. It's a boating accident. A guy allegedly gets wasted at a party, drives a speedboat, kills a person, flees the scene, and then gets busted. The dead person's estate wants to sue the boat owner. Because, hey, it's your boat, and you shouldn't have let your drunk kid drive it. At which point the boat owner says: "Admiralty law, my man. You can have my crappy little boat and its worn out seat cushions (its "cargo"), but nothing else. That's fair compensation for your dead child."

For even more arcane procedural reasons (a six month "notice of claim" rule unique to this area), the district court disagrees, but the Ninth Circuit reverses.

I can fathom no reason why, in the modern era, we'd possibly want to treat boat owners in this context any differently than, say, car owners. Is shipping important? Sure. But this guy wasn't shipping, he was just jetting around on his speedboat. And even if he was, driving a car -- and/or shipping via truck -- is equally (if not more) important (to most people, anyway) than sending things on a ship. So whatever the rule is for cars should be the same rule, it seems to me, for ships. No silly little holdovers from before the Civil War when, uh, to put it mildly, there were a lot of legal principles that we've thankfully moved far beyond.

Now, if you want to protect innocent owners generally, and want to, for example, say that absent a claim of negligent entrustment, an car or boat or truck owner isn't liable for anything beyond the first $15,000 (or whatever) of injury, okay, we can have that debate. But the rule should likely be the same regardless of the mode of transportation. Without any holdovers from, say, 1851.

It's not like Congress actively thinks about these things. It's not like anyone's getting elected on a campaign motto that says they're going to bring admiralty law into the twenty-first century. No one cares. Unless and until, of course, it's your kid who gets maimed or killed. Instead, a residual holdover from a bygone and inapposite era determines liability.

There are some bad things, to be sure, about the common law. But one of the good things is that you don't typically have unchanging arcane legal rules that make no contemporary sense. Instead, judges are entitled (with appropriate respect for precedent) to change them. Which, overall, is often a good thing. Particularly if there's a statutory backstop where Congress can, if it feels like it, go ahead and change 'em back if the electorate is really of a different view.

But Congress ain't enacting this statute in this context in the modern era. Yet it gets applied in the present cases anyway.

'Cause that's the way the system works.

To the detriment of the dead girl and her family here.

Friday, May 06, 2022

Amato v. Downs (Cal. Ct. App. - May 6, 2022)

Justice Raphael's opinion today is perfect. It's relatively short (16 pages), analytically spot on, and reaches the appropriate legal conclusion. It's exactly what you want to see the Court of Appeal do.

The California Supreme Court should nonetheless grant review and reverse the thing.

I know that's a counterintuitive conclusion given the predicate. But bear with me.

There's a ton of stuff in the opinion that I'm 100% in agreement with. The plaintiff is suing because he thinks his listing agent convinced him to his house in Rancho Mirage for less than he should. The plaintiff here is an attorney, but he's an older gentleman -- he was admitted to the bar before I was even born, and I'm 55 years old -- so he has another attorney assist him in the representation. Shortly before trial, plaintiff and his attorney screwed up some procedural stuff, so the judge on their case gets miffed and holds that, as a result of these failures, plaintiff "waived" his right to a jury trial. So the judge holds a bench trial, and at that trial, plaintiff loses badly. Plaintiff then appeals.

Justice Raphael first holds that you can't take away someone's jury trial right for procedural mistakes like the one plaintiff and his counsel made, and that's exactly right. There's a list in Section 631 of the ways in which you can lose your jury trial right, that list is exclusive, and not properly submitting the "trial binder" that the Riverside Superior Court requires isn't one of 'em. So you can sanction the plaintiff and/or his counsel, or do other stuff to them, but you can't take away their right to a jury trial. Exactly right. That's what the law fairly clearly says.

I've got zero problem with that part.

But the defendant's got a creative argument. Generally, depriving someone of their jury trial right is what we call structural error (though Justice Raphael's opinion doesn't use that term), and for structural errors, you don't have to show prejudice. Depriving someone of a jury trial is one of those things. It's not only a fundamental right, but more critically, it's basically impossible to establish error to any requisite degree of certainty. How can you "prove" that a jury would decide the case differently than a judge?

So, for structural errors, it's a per se reversal rule. Same in federal court. No showing of prejudice required before we reverse and remand for a new trial.

The wrinkle here is this: At the bench trial, the trial judge granted a nonsuit based upon plaintiff's failure of proof. Now, as Justice Raphael notes, even though everyone calls it a nonsuit, that's not technically the right term; in bench trials, it's actually a Section 631.8 motion for judgment. But the concept is basically the same thing: plaintiff didn't put forward enough evidence, so defendant's entitled to prevail.

Defendant's argument is thus, essentially, that even if there was error in depriving the plaintiff of his right to a jury trial (and, to be clear, it was), no blood, no foul, since he'd have lost anyway based upon his failure of proof. So go ahead and affirm the judgment.

The problem is -- and, again, Justice Raphael gets this exactly right -- a little thing called precedent. Lots of cases have made clear that if you're deprived of a jury trial right, that's a fundamental error and doesn't require a showing of prejudice. There are lots of Court of Appeal cases that so hold, though (obviously) this panel isn't required to follow horizontal precedent in this regard if it doesn't feel like those cases are well reasoned.

But there's also a California Supreme Court case from the nineteenth century -- In re Estate of Robinson (1895) 106 Cal.493, 496 -- that's basically on point, which reversed the decision in that case based upon the erroneous denial of the right to a jury trial, holding that “[a]s this was a right conferred upon them by statute, they did not waive it by subsequently going to trial under the order of the court, or by their failure to present evidence sufficient to secure a judgment in their favor.” That one the Court of Appeal is required to follow.

Totally makes sense. Which is why I have no problem with today's opinion.

But the California Supreme Court should nonetheless take up the case for the precise purpose of overruling that portion of In re Estate of Robinson. Yes, there was an error here. But it was harmless. Plaintiff didn't have sufficient evidence to survive a nonsuit (or at least, for present purposes, we're assuming that's true, since that's what the trial court found, and there's no current contrary finding). There's no reason to believe that plaintiff would have any additional evidence available at a jury trial that he didn't already submit at the prior bench trial. So if that evidence isn't good enough, reversing and remanding for a new trial is a meaningless (and wasteful) act. Might as well affirm the judgment now. Good for everyone -- the defendant, the system (and taxpayers), and even the plaintiff. No reason to expend private and public resources on something we know has a foregone conclusion.

Is the deprivation of a jury trial usually structural error and result in per se reversal? Yes. Should that be the rule here? Nope. It is - or at least should be -- an exception to the rule.

Notwithstanding a case from 1895 that went the other way.

It might not be an issue that comes up a billion different times. But it's been a century-plus. Time to fix that tiny little mistake. 'Cause it is, in fact, a mistake. 

And the California Supreme Court is the only one that can fix it.

(Which is also appropriate since they're the ones who made it in the first place.)

Tuesday, May 03, 2022

Estate of Eskra (Cal. Ct. App. - May 3, 2022)

 I can summarize today's opinion in a single sentence. Okay, maybe two sentences:

"You really, really ought to read that prenuptial agreement before you sign it. Really."

Here, Scott and Brandy are getting married, and Scott already has a nine-year old kid. Scott says he wants  prenup, and the prenup says that Brandy doesn't get anything from Scott. Period. Not if they die, not if they divorce, never.

Brandy says she's super bummed at this, and tells Scott: "Hey, I'm cool with getting nothing if we divorce, but if you die, come on, dude, give me something, right?"

And here's what's interesting -- it's fairly obvious (to me, anyway) that that's indeed what happened. Brandy's not making it up. She apparently sent her lawyer an email that said basically the same thing, Brandy's lawyer sent the other side an email saying this as well, and so what Brandy wanted is fairly obvious.

The rub is this: What Scott wanted isn't undisputed at all. Brandy says she had a conversation with Scott and Scott was down for changing the agreement so that it applied only if they got divorced, not if he died. But Scott's lawyer says, nah, Scott told him to stick with the existing plan.

What we do know is this: Scott's lawyer tinkered with the draft, and took out some provisions, but the stuff he took out did not actually change the agreement. If someone uneducated just looked at the thing and noticed that there were deletions, yeah, you might have thought that they were taking out the whole "death" stuff. But no lawyer would read it that way. Because it still fairly clearly said that Brandy got nothing even if Scott dies.

But (1) Brandy doesn't even read the revised contract before she signs it, and (2) Brandy doesn't have her lawyer read the revised contract either. She just signs it. Confident that, yeah, Scott said he'd take all the death stuff out (according to her, anyway), so she assumed it was gone.

Even though it wasn't.

The trial court believes Scott's lawyer when the lawyer testified that Scott wanted to keep the prenup the way it was. So that just leaves Brandy's unilateral mistake, which doesn't cut it. Brandy doesn't get anything, and the nine-year old kid -- now a lot older -- gets it all.

So holds the trial court as well as the Court of Appeal.

I kinda feel for Brandy here. It does seem like maybe Scott (and his lawyer) are playing a little bit of a game with "revising" the contract without really revising it.

But, at the same time, she's got a lawyer. You generally want to actually use those people. Not just have 'em around doing nothing. So if you choose not to read the contract before you sign it -- or even to have your lawyer read it -- that's kinda on you, no?

Hence today's opinion. Which says the same thing with a whole lotta legalese.

Friday, April 29, 2022

Leshane v. Tracy VW (Cal. Ct. App. - April 29, 2022)

It's fairly shocking that the defendant thought there was even the slimmest possibility of success in this appeal.

Plaintiffs file an employment lawsuit, defendant files a motion to compel arbitration, and plaintiffs respond by dismissing all of their individual claims and retaining only the PAGA claim -- and PAGA claims (as you know) aren't subject to mandatory arbitration. Sound strategy. (Though plaintiffs should have figured out this strategy from the outset, honestly, and avoided the waste of time and money by only filing the PAGA claims to begin with.)

Defendant nonetheless insists that the claims must be arbitrated because dismissing the claims subject to arbitration allegedly "doesn't work" because they might, at some point, be brought in the future. Hence, defendant insists, it's still entitled to a stay of the pending lawsuit -- a lawsuit that (again) isn't subject to arbitration.

The trial court disagrees. Defendant appeals. The Court of Appeal affirms.

Of course it does. Since that's obviously -- and, I want to reiterate, obviously -- correct.

Zero chance defendant prevails. Zero.

Two possibilities. One, defendant and its counsel were just irrational, and thought they could win an absurd argument on appeal. Possible. Second, defendant and its counsel knew they'd lose, but hey, you still delay the lawsuit for a year or two while you take the appeal of the denial of the motion to compel arbitration.

Exceedingly possible as well, eh?

Wednesday, April 27, 2022

Lincoln v. Lopez (Cal. Ct. App. - April 25, 2022)

I was on the East Coast for a bit, so got behind on reading the daily appellate opinions. But upon my return, I found this election opinion at least marginally interesting. Not so much about the merits, but instead regarding the appellant's lawyer -- and the Court of Appeal's reaction to him.

The question was whether the trial court's opinion below was supported by substantial evidence, and as the Court of Appeal notes, it's incredibly difficult to establish on appeal that it wasn't. You've got to view all conflicts in the evidence in favor of the judgment, so unless there's a manifest failure of proof, you're basically doomed to lose. As, indeed, appellant does here.

Justice Richman was particularly harsh towards appellant's counsel for citing evidence in favor of the appellant, and for not really grasping that the critical issue is whether there was evidence in favor of the appellee. I agree with the latter, point, but personally, don't find that surprising (or unusual) the former. Sure, you've got to engage with the relevant standard, and it's super hard to establish that the decision below wasn't supported by substantial evidence. Nonetheless, it's not unusual, IMHO, to cite the evidence on one's own side, if only to provide "color" to the alleged justice of your cause. Sure, the evidence on that side might be technically irrelevant to whether there's substantial evidence on the other side, since all conflicts in the evidence are resolved in favor of the trial court's decision. But I'd be surprised if someone omitted entirely such evidence from their brief. It provides context. Color. You don't want to rely on it too much, as I'm certain the appellant did here. But you still probably include it -- at least a bit.

That said, Justice Richman is definitely correct when he says: Don't go overboard. You gotta engage with the standard. Even if you're going to lose. Gotta make the appropriate effort.

Parenthetically, what I was most surprised about was the contact information listed for appellant's counsel on the State Bar's web site. Appellant's counsel, Mark S. Rosen, has an email address at Talk about old school, eh? Didn't even know the place still existed.

Friday, April 22, 2022

People v. Bloom (Cal. Supreme Ct. - April 21, 2022)

It's a 75-page-plus death penalty opinion. The defendant (Robert Bloom) admits that he killed his father but denies that he killed his stepmother and stepsister; nonetheless, against his wishes, his lawyer admits at trial that Mr. Bloom killed all three victims. The jury finds Mr. Bloom guilty of all three crimes and sentences him to death. California Supreme Court affirms the conviction of the father but reverses the convictions for the other two deaths, alongside the death sentence. The case gets remanded for a retrial on the other two deaths and on the death penalty, if the prosecution so elects.

The murders occurred in 1982. Mr. Bloom was first convicted in late 1983 and sentenced in 1984; after a federal court granted Mr. Bloom's habeas petition, he was retried in 2000 and sentenced to death.

It's now 2022. Four decades after the crimes. Now we're deciding whether to try again to sentence him to death. A sentence that's, practically, never going to be carried out anyway.

Thursday, April 21, 2022

NRDC v. EPA (9th Cir. - April 20, 2022)

The Ninth Circuit is miffed.

It's a lawsuit brought by the Natural Resources Defense Council against the EPA. The NRDC wants the EPA to disallow the use of TCVP, which is a chemical originally developed from nerve warfare agents that's now used in pet collars to prevent fleas and ticks. The NRDC thinks that putting chemicals like this on pets that are petting by kids (who then stick their fingers in their own mouths) is a bad idea. So back in 2009, the NRDC asked the EPA -- pursuant to a statute -- to disallow the use of this chemical agent.

The statute says that the EPA has to respond to such petitions "within a reasonable time," but the EPA did anything but. It sat on its arse for five years, at which point the NRDC brought a petition of mandamus to get the EPA moving. I need not recount all the resulting delays and trips to the Ninth Circuit, but suffice it to say there was a lot going on, with the courts basically saying "Get off your butt" and the EPA responding by not exactly cracking the whip. Ultimately leading to the Ninth Circuit saying (in 2020): "Seriously, dude?! We're sick of this. Time for an order making you actually do what you're supposed to have done long ago." (Okay, the actual language was: "[T]he EPA’s years-long delay on this critical matter of public health has been nothing short of egregious. For more than a decade, the EPA has frustrated NRDC’s ability to seek judicial review by withholding final agency action, all the while endangering the wellbeing of millions of children and ignoring its core mission of protecting human health and the environment.").

At which point the EPA says, essentially, "Fine, you feel like making us decide? Here's our decision: The chemical seems basically fine with us. So there."

Which results in the present appeal. In which an already-miffed Ninth Circuit says: "Nope. Your (long belated) decision on the merits is as stupid as your delay in issuing it. Reversed. Decide again, and this time don't make moronic arguments. Oh, and get it back to us within 120 days. We're sick of your crap." (The panel's actual words: "At times, NRDC’s efforts to receive a reasoned response from EPA have seemed Sisyphean as the agency consistently delayed its decision. After NRDC had doggedly pursued this matter for more than a dozen years, when EPA finally did reach a decision under pressure of a mandamus order of our court, NRDC was justified in expecting a rational, supported, and reasoned response from EPA. EPA, though, did not provide a well-reasoned or reasonable decision. Instead, its stated reasons were cursory and often at odds with EPA’s own prior assumptions and statements. Then, in response to this lawsuit by NRDC, EPA has provided many arguments in its briefing that were never given in the record as the basis for the administrative decision. Because EPA’s denial of NRDC’s petition is not supported by substantial evidence, we VACATE EPA’s denial of NRDC’s petition and REMAND to EPA to issue a revised response to NRDC’s petition within 120 days.")

When a group of federal appellate judges think a litigant is basically toying with (and/or ignoring) them, they tend not to like that. And they're quite capable of doing something about it.

I think you see a bit of that here.

Lesson of the day: Don't hack off federal judges.

Tuesday, April 19, 2022

People v. Vaughn (Cal. Ct. App. - April 19, 2022)

Justice Ramirez wants you to know a lot about the vocabulary utilized by pimps and prostitutes.

In the beginning, it was limited to one word -- "blade." Which, I concede, I had not heard of before. I thought that, in the vernacular, a "blade" was a knife. Which, I suspect, it is, but not in this particular context.

As Justice Ramirez explains in footnote three of the opinion: "The “blade” (or “track”) is a street frequented by prostitutes." Got it. I had definitely heard the term "track" before, with this meaning. But blade was a new one for me. So now I understand.

After defining the term, Justice Ramirez then uses it pervasively throughout the opinion -- like, a half-dozen times. "Wilkins and Vaughn dropped Jane off on the blade in Oakland." "On the night of June 3-4, Jane was out on the same blade again." "The blade was nearby, so Jane walked there. She saw Molly on the blade." Stuff like that.

It read a tiny bit awkward, but fine. Blade equals track equals street where prostitutes gather. On it.

But then the opinion gets crazy educational.

Starting at page seven of the opinion, Justice Ramirez starts explaining the meaning of other terms used in the pimping and prostitution context. And goes on. And on. And on.

And most of these terms I've never heard of before. So I'm definitely learning. A lot.

I'll share with you this knowledge:

"A sex buyer is called a “trick” (or “T”), a “John,” or a “date.” “Trick” and “date” can also mean an exchange of sex for money. [Okay, these I knew already.]

A “P” is a pimp. “Izm” means an individual pimp’s pimping style. To “fuck with you” (abbreviated “fwu”) means to be in a pimp-prostitute relationship with the other person. A pimp calls a prostitute a “bitch”; a prostitute calls her own pimp “daddy” or “king.”

“Trap,” as a noun, means the daily dollar quota that a pimp sets for a prostitute. Thus, to “trap,” as a verb, means to make money. To “break” (or “brake”) means to get money from someone; a prostitute will break a trick, and a pimp will break a prostitute.

Jane was White; Molly was Black. “Snow” means a white prostitute. “Faggot” or “fag” means “a prostitute that’s not paying her pimp or otherwise not doing what she’s supposed to.” “Tellys” means hotels."

Wow. That's . . . a lot.

Justice Ramirez doesn't do all this simply for fun. Rather, later in the opinion, the opinion recounts a variety of text messages between the alleged pimp and prostitutes, and to understand those terms you need an (informal) dictionary. Hence the explanation.

Regardless, it's a lot of new terminology for me. Only some of which I'll remember, probably. But at least for now, I've got a whole set of new words for me to employ.

In theory, anyway. I imagine that if I ever start using any of these terms, my students (or children) will think that something's definitely not right.

Friday, April 15, 2022

U.S. v. House (9th Cir. - April 15, 2022)

In today's opinion, you've got a per curiam opinion. You've got a concurrence by Judge Graber. You've got a concurrence by Judge Christen. And to top things off, you've got a concurrence by Judge Wu (sitting by designation from the Central District of California).

Yet more evidence that the modified categorical approach -- and anything associated with it -- is redicu-complicated, even for very smart judges.

Thursday, April 14, 2022

People v. Pantoja (Cal. Ct. App. - April 13, 2022)

A police officer sees a car traveling at 25 miles per hour. That seems "pretty fast" to him, even though it's within the speed limit. The officer makes a u-turn to follow the guy, and notices that the license plate and third brake lights are out, so decides to make a traffic stop.

The officer recognizes the defendant as a guy with a record, but he got of probation in 2018, so there's no basis for a probation search. There's no smell of marijuana. There's no contraband. The officer asks to search the vehicle, and the guy declines.

So the officer orders him out of the car, tells him to put his hands on his head, and pats him down.

The basis? The guy's driving in a high-crime area and "was wearing baggy clothing. He had [a] hoodie on and jeans. The hoodie naturally has bulges in it, so based upon defendant’s history of weapons, I elected to remove him from the vehicle and pat him down so I can complete the citation."

No dice. No reasonable suspicion of a crime. Search illegal, evidence suppressed.

The guy's name is Juan Pantoja.

Do you think you would be pulled out of the vehicle and patted down under similar circumstances?

Tuesday, April 12, 2022

Clarity Co. Consulting LLC v. Jenkins (Cal. Ct. App. - April 12, 2022)

Justice Yegan doesn't say anything in today's opinion that hasn't already been said previously. Yet it needs to be said here again:

Especially when you're an attorney representing yourself, don't represent yourself on appeal. Particularly when you lost below. Times two if you not only lost, but got sanctioned for filing a frivolous motion.

Larry Gabriel is the lawyer and defendant. He's the general counsel of a startup company. He gets sued. In a lawsuit that, to be honest, is probably going nowhere. Because the allegations against him are silly.

But instead of taking a moderate approach, he files an anti-SLAPP motion, claiming that a fairly routine breach of contract dispute involves "protected activity" under the statute. The trial court disagrees, and imposes sanctions for the filing of the motion. At which point Mr. Gabriel appeals.

At which point he and his firm get sanctioned by the Court of Appeal for filing a frivolous appeal.

He's actually fairly lucky; the sanctions to the other side were only $12,798.50, which is fairly low for the costs of defending even a silly appeal. (Plus another $8,500 to the Clerk of the Court.)

The twenty thousand hurts. But there's also now a published opinion with his name in it. Plus the sanctions get reported to the State Bar.

All for an overly aggressive response to a lawsuit he was probably going to win on the merits anyway.

Sometimes -- often -- getting a dispassionate opinion of a neutral outsider helps.

Monday, April 11, 2022

Mireskandari v. Edwards Wildman Palmer LLP (Cal. Ct. App. - April 8, 2022)

Some lessons you can learn from this opinion:

(1) Be wary about taking on lawyers as your client. If you lose, you might well be the next person they sue.

(2) The lesson in (1) is especially true if your client is -- as the trial court described the attorney/client here -- "a raging bull" who wants to file litigation that might well not succeed.

(3) The lessons in (2) and (3) are true even if you tell clients that they might not succeed.

(4) The lessons in (2), (3) and (4) are even more true if, as alleged here, you didn't tell the client that the other side might file an anti-SLAPP motion and you might be required to pay their attorney's fees. Even if you did, in fact, tell them that, make sure you tell 'em in writing. Because if they deny that you told them, you've got to face a trial.

(5) If you're the appellate lawyer trying to solve the mess resulting from (1) through (4) above, be sure to follow the rules on appeal. That's true even if you end up not being sanctioned, because, at a minimum, you don't want to have to read a published opinion that says this about you:

"However, while we have declined to impose sanctions, we must emphasize that we did not come to the point of considering them in a haphazard or spontaneous manner. (See Alicia T., supra, 222 Cal.App.3d at p. 885.) Notwithstanding appellate counsel’s contrition, her explanation implicitly admits that, faced with strained office resources and this court’s notification that no further time extensions would be granted, she made the conscious decision to file an oversized opening brief and 14-volume appellant’s appendix that she knew violated the applicable Rules of Court. The effect of that decision, as counsel must have known, was to shift the burden onto opposing counsel and this court to navigate a materially deficient appendix without the aid of proper record citations."

(6) Perhaps this goes without mention, but I'll mention it anyway: Don't just cut-and-paste huge sections from your trial court briefs. Ever. Even more so when you're filing an overlength brief. The Court of Appeal doesn't like that, and you don't want to be reading something like this:

"That decision is especially vexing, given counsel’s corresponding decision to include almost 30 pages of argument in Mireskandari’s oversized brief that appear to have been simply copied and pasted from his post-trial motions. To be sure, forfeiture rules generally bar an appellant from challenging rulings on grounds that were not raised in the trial court, but that does not give an appellant license to throw every argument from his post-trial motions into his opening brief without making the slightest effort to acknowledge our presumption of correctness or to explain why the trial court’s rulings constitute reversible error. “The public fisc is limited, and justices and support staff must carefully monitor and utilize their resources.” (Alicia T., supra, 222 Cal.App.3d at p. 885.) If Mireskandari and his counsel did not have the time or resources to do anything more than copy and paste arguments from previously drafted motions, they should not have placed the burden on this court to craft an opinion rejecting those arguments."

(I'll mention, by the way, that the appellate counsel who's getting slammed isn't some schlub, either; she's Becky James at Dykema Gossett, a certified appellate specialist -- but working out of Texas.)

(7) Finally, while we're on the subject, I'd have thought this too went without mention, but when you prepare the record, put in the index and appendix in chronological order. That means by date. Oldest first. Seems obvious, right? But look what happens here:

"We will not recount counsel’s detailed explanation of the “significant and unexpected obstacles” her office faced in completing the appendix and drafting the opening brief, including the unprecedent hardships the COVID-19 pandemic imposed on her office and staff. [Footnote follows:] One specific explanation, however, bears attention. With respect to the reverse chronological arrangement of the index and appendix, counsel notes the applicable rule provides only that appendix documents must be “ ‘arranged chronologically’ ” (rule 8.144(b)(2)(C)), but she emphasizes it “does not specifically indicate in which direction the chronology should proceed.” This, in our view, is not a reasonable reading of the rule and, in any event, the decision to use a reverse chronology made little sense in this case. Any practitioner who has read an appellate record should recognize there is a practical reason the rules mandate a chronological arrangement. A chronological arrangement allows the reader to move from the end of one record to the beginning of a subsequently-filed record—e.g., from motion, to opposition, to reply, to ruling. Counsel’s use of a reverse chronological arrangement requires the reader to retrace back through a record, then back through the subsequently-filed record, to find the beginning of that subsequently-filed record. That process is especially time consuming when the appendix spans over 9,700 pages and includes well over 100 documents, many of which are not separately indexed. Moreover, because counsel included appendices from earlier writ petitions, which were arranged in the appropriate chronological order, there are parts of Mireskandari’s appendix that are in chronological order and parts that are reversed. And, because counsel did not separately index the documents embedded in the writ petitions, many of those documents have no chronological relationship (proper or reversed) to other documents in the appendix. Suffice it to say, counsel’s decision made reviewing the appendix a needlessly frustrating and time-consuming effort."

Learn from the hard-learned lessons of others.

Here's seven good ones for the day.

People v. Bracamontes (Cal. Supreme Court - April 11, 2022)

Sure, the California Supreme Court is left-leaning in a lot of areas, but sometimes when reading an opinion (or otherwise), you don't need a weathervane to know which way the wind blows.

Here's a test: See if you can fill in the blank for the next word in this opinion, the first paragraph of which reads (in its entirety):

"A jury convicted Manuel Bracamontes of the first degree murder of nine-year-old Laura Arroyo, with special circumstances for committing the murder while engaged in kidnapping, lewd act on a child under 14, and oral copulation. A death sentence was returned and imposed. We _______."

Do you think the omitted word is (A) Affirm, or (B) Reverse.

Yep. You're right.

Wednesday, April 06, 2022

Keen v. City of Manhattan Beach (Cal. Ct. App. - April 6, 2022)

Unlike some people, I don't mind Justice Wiley's short, staccato style. Sometimes -- many times, even -- I affirmatively like it.

But the danger is that, sometimes, brevity is both under- and/or overemployed. The last paragraph of this opinion is one of those times.

The Court of Appeal holds that the City of Manhattan Beach can't prohibit short-term rentals because it didn't get approval of the Coastal Commission. Fair enough. Justice Wiley explains why in a concise 10-page opinion.

But here's the last paragraph, in its entirety:

"The City argues Keen’s reliance on Kracke v. City of Santa Barbara (2021) 63 Cal.App.5th 1089 is misplaced. Our analysis does not involve Kracke."

That's ending on a low note, IMHO.

On the one hand, if a party cites a case and you think it's distinguishable, you've got to explain -- or, in my view, should at least explain -- why. You owe that to the parties and/or the lower courts. Saying,  iessence, essentially, "Our case is different" doesn't cut it. Especially if you don't even explain the facts or holding of that other case. So, in one way, this paragraph underexplains.

Alternately, the paragraph's entirely unnecessary. Justice Wiley's right -- though I had to read the sentence three times (and think about it a bit ) to figure out why. (And also figured it out, truthfully, only after going back and reading Kracke.) That earlier case -- which basically held something similar to what the Court of Appeal holds today -- is an argument (if anything) for today's holding. But Justice Wiley doesn't feel like using it; which, after reading the case, I understand, because technically, although the cases reach the same result (i.e., both cities ultimately couldn't ban short term rentals), they reached that result for different reasons and based on different legal arguments.

Fair enough. So if you're not relying on a case, no reason to mention it. At all. You're under no duty to explain away every case that goes the way you end up and explain why you're not using it. And doing so would end the opinion on a whimper (rather than a bang) anyway. Especially when you're not even doing an explanation of the case and are simply saying "Yeah, we're not citing that case".

After all, the opinion doesn't rely on a ton of cases: Miranda, Marbury, Dred Scott, etc. No need to mention them either. Ditto for Kracke. Just leave it out, particularly if you're not going to explain it.

Tuesday, April 05, 2022

People v. Salinas (Cal. Ct. App. - April 4, 2022)

Justice Baker's opinion begins with a fairly powerful summary of the holding of the case:

"At defendant and appellant Salvador Salinas’s (defendant’s) criminal trial, the prosecution used five of the eight peremptory challenges it exercised to remove Black women from the jury panel—including a prospective juror who was a sales manager, a crime victim herself, the grandchild of a retired police officer, a friend or acquaintance of “a lot” of law enforcement officers, and a prior member of a criminal jury in another case that reached a verdict."

Yeah, that's a problem. You can see why the conviction gets reversed.

Personally, I was less influenced than Justice Baker was with the exclusion of the four other Black women (though I totally understand where he's coming from). Were I the prosecutor, based on what I've read in the opinion based upon their answers in voir dire, I might well have bounced some -- or all -- of these four women myself, without even knowing what race/gender they were. Some of those answers made me think that these potential jurors might well be a bit more . . . critical than prosecutors are typically looking for in a juror. (Not that that's necessarily normatively right, but it's descriptively very true.)

But I'm totally on board for the fifth Black woman juror. I see absolutely zero reason why she should have been bounced -- or even (apart from her race and gender) why a prosecutor would think that she'd be pro-defendant. That one, I agree, is a Batson/Wheeler violation.

Justice Baker makes the same point that I'm about to make in a slightly different way, but I think there's something super problematic about the overall structure of the whole peremptory challenge thing in the first place. The reality is that racism and gender stereotypes, wholly apart from being sometimes conscious and deliberate, are fairly invasive. Someone can look at two entirely similar people/jurors and while one of them -- the white/majority/male one -- might seem "fine, even though a bit overly confident for my own tastes," it's distinctly possible for that same person to view a quite-similarly-situated minority/female juror (or person) as "aggressive" or "uppity" or "hostile". That's not saying that you go into voir dire with an intent or desire to bounce all the minority jurors. But to pretend that racism and stereotypes don't play a role in some of the assessments we might make about individual people is, I think, a fair piece naive. It's not the way things necessarily work -- either in academic theory or in practice.

Anyway, they shouldn't have bounced that fifth person. New trial with a more representative jury (hopefully).

Monday, April 04, 2022

Quintero v. Weinkauf (Cal. Ct. App. - April 4, 2022)

Today's opinion presents itself as your typical stalking case, and in many respects, it is one -- with the notable exception that it's a civil case, not a criminal one. The basic facts:

"The complaint alleged that after Quintero and Weinkauf ended their romantic relationship, Weinkauf shot arrows and discharged a firearm through the windows of Quintero’s business. It further alleged that Weinkauf committed these acts in disguise and under cover of darkness, but Quintero was ultimately able to identify him as the perpetrator."

Yeah, that's not good, and yeah, those are torts.

The jury ultimately finds in favor of Ms. Quintero and awards her compensatory damages of $1.3 million, with another $6,000 in punitive damages (plus a little under $1 million in costs and fees) added on top of that.

Your stalkers usually aren't rich, but her, Mr. Weinkauf isn't exactly poor either; his net worth at trial is $1.5 million. (Though, clearly, not so much after the verdict.)

And in the other surprise, you don't learn until nearly the very end of the opinion -- with reference to some "MCLE" evidence -- that Mr. Weinkauf . . . is an attorney.

Or at least was, until he was disbarred.

Wednesday, March 30, 2022

Artus v. Gramercy Towers Condo. Ass'n (Cal. Ct. App. - March 30, 2022)

You can feel the love in this one. And when there's no love, you definitely feel that too.

Division Two of the First repeatedly displays its love for the trial judge, Judge Kahn (from SF). The first reference to Judge Kahn says: "As will be seen, it was Judge Kahn, a most experienced Superior Court judge, who presided over the case through its conclusion . . . ." And the compliments only get stronger thereafter. (To take but one representative example: "[O]ne reading that transcript—with Judge Kahn’s questions, his comments, and his colloquy with counsel—cannot but be impressed by the depth and breadth of Judge Kahn’s understanding of the litigation.")

By contrast, the panel's definitely not feeling the love for either of the lawyers for the parties on appeal. Plaintiff's attorneys first get mentioned this way: "Passing over the fact that Dr. Artus’s brief misrepresents the record in many respects, her arguments fall way short, as they do little, if anything, more than regurgitate and reassert the same arguments thoroughly analyzed—and rejected—by Judge Kahn in his analysis." And it only gets worse from there; e.g., "Dr. Artus makes two other arguments, numbered six and seven . . . . Neither argument merits discussion. The third argument, all of five lines, has no support. And the fourth argument essentially asks us to change some language in the earlier opinion by our colleagues in Division One. It is most inappropriate."

Defendant's attorneys don't exactly feel the love either. Here's how they get introduced to the reader: "Cross-appealing Judge Kahn’s denial of attorney fees to it, GTCA has filed a 22-page opening brief that has an introduction, a statement of facts and procedural history, and fewer than 12 pages described as “discussion,” fewer than two pages of which could even be considered argument." Not exactly a compliment on the brief, eh? 

Lest that be all, the panel continues: "And what might be called the argument that follows [ouch!] consists of these three brief paragraphs: [Quotes Paragraphs] That is essentially it. It is unpersuasive, as it utterly fails to come to grips with Judge Kahn’s detailed analysis."

This is one of those opinions where the panel most assuredly lets you know how they feel.

Monday, March 28, 2022

Ross v. Davis (9th Cir. - March 28, 2022)

It's a federal habeas death penalty case.

The murder occurred in 1982 -- forty years ago.

The California Supreme Court affirmed the conviction and sentence in 1995, and the federal habeas petition was filed in 1996. Both of these events were over a quarter century ago.

The district court denied the habeas petition in 1997, half a decade ago.

The Ninth Circuit finally adjudicates the case -- and affirms -- today.

In re Bailey (Cal. Ct. App. - March 28, 2022)

When the government decides whether or not to terminate your welfare benefits, the Due Process Clause requires the state to provide an in-person hearing in which you can present your case. So held the United States Supreme Court a half century ago.

When the government decides whether or not to let you out on prison on parole, the Due Process Clause does not require the state to provide an in-person hearing in which you can present your case. So holds the California Court of Appeal today.

And, the Court of Appeal holds, you've got no statutory right to such an in-person hearing either, even though the electorate granted eligible prisoners the right to parole consideration. "Parole consideration" under that proposition doesn't necessarily mean the same "parole consideration" that prisoners ordinarily receive. The state can instead do what the voters intended by simply letting you present your case in writing, without actually hearing you speak.

Such is the law as it stands today.

Friday, March 25, 2022

Cleveland v. Taft Union High School Dist. (Cal. Ct. App. - March 25, 2022)

What first caught my attention in this opinion was the caption: Cleveland v. Taft Union High School District.

It reminded me of the relevant presidents: Cleveland and Taft. Who weren't separated all that far apart, after all. Indeed, back in the day (e.g., 17 years ago), there was a television documentary series about the various presidents, and episode five was entitled . . . "Cleveland to Taft". Neat.

The underlying facts of the opinion, by contrast, involve a serious tragedy. A 16-year old high school student with a history of being bullied seriously injures another high school student by shooting him in the stomach with a shotgun. A jury finds the school district 54 percent responsible by failing to adequately respond to a ton of warnings that the shooter was at risk of doing precisely what he did. The school district's overall liability is around $2 million.

The Court of Appeal affirms.

This kind of stuff has got to be taken seriously. For a ton of reasons.

Perhaps the least of which is because school districts might well be spanked with liability if they don't.

Wednesday, March 23, 2022

Curtain Maritime Corp. v. Pacific Dredge & Const. (Cal. Ct. App. - March 22, 2022)

This case comes out the way I thought it would, but not for the reasons I anticipated.

The underlying facts aren't particularly relevant (unless you're particularly interested in dredging and/or the requirements of the federal Jones Act); instead, it's really just the procedural history at stake. Plaintiff files a lawsuit, defendant files an anti-SLAPP motion, the trial court denies the motion, defendant files an appeal, and then plaintiff dismisses the lawsuit and claims (given that dismissal) that the appeal is moot.

The Court of Appeal holds that the appeal isn't moot, and that seems totally correct. Defendant wants its attorney's fees, and it only gets 'em if it wins its appeal and shows that the anti-SLAPP motion should have been granted. Since a potential fee recovery is at stake, the case isn't moot. Spot on.

But that's not where the Court of Appeal goes.

Instead, Justice McConnell's opinion says that because there was an appeal, the case was automatically stayed, and the trial court "lacked jurisdiction' to dismiss the case in the first place.

Maybe that's technically correct. Though, to be honest, I think there's a huge difference between that holding and the sole case that the Court of Appeal relies upon for that holding -- a case that says that after the filing of an appeal, there's no jurisdiction to hold a trial on the merits. There's a huge difference between having a trial while the case is on appeal and simply dismissing a case. Generally, you get to dismiss a lawsuit -- with prejudice, anyway -- whenever you want. To hold that you can't dismiss a case while the matter's on appeal seems fairly revolutionary, no? Since I know tons of cases that, in fact, got dismissed while the matter was on appeal. Before this opinion, I'd have thought that was perfectly fine. Now, I'm not so sure.

So I agree the case isn't moot. But I'm not a thousand percent sure that this is why. And if it is, it's due to a concept that -- at a minimum -- I hadn't really appreciated previously.

And an important one in cases far beyond the anti-SLAPP context as well.

Monday, March 21, 2022

People v. Edwards (Cal. Ct. App. - March 18, 2022)

This is another classic Justice Wiley opinion, which means that it's (1) short (e.g., eight pages), with (2) tons of clippy, short sentences. A distinctive style.

Sometimes that works. But sometimes, it really doesn't engage at all on the merits, or (potentially) give the parties (or future tribunals) a reasoned basis for coming out the way it does.

This is one of those latter occasions, IMHO.

It's another one of those "You violated my Confrontation Clause rights because you made everyone wear a mask during a global pandemic" cases. It comes out the same way that nearly all of them -- and all of them in California -- does; namely, the argument is rejected. For understandable reasons, and ones that Justice Wiley articulates in his inimitable style. (For example: "A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion.")

But sometimes, a decision to be concise is also a decision to give incredibly insufficient shift to complex -- and potentially meritorious -- arguments on the other side.

This is one of those occasions.

I've written about this briefly previously, about one of the other California criminal face mask Confrontation Clause opinions. The best argument, in my view, is that while it's totally fine to compel witnesses to wear face masks during COVID given the risks of transmission, there's very little, if any, argument as to why those face masks shouldn't be transparent. Such masks undoubtedly exist, and have existed for some time. Using those masks would solve the problem; that way, the Confrontation Clause would be satisfied -- as well as its underlying (and important) purpose (e.g., allowing the jury to more accurately judge credibility, including but not limited to helping to ensure that innocent people are not sentenced to prison) -- while simultaneously preventing transmission of a potentially deadly disease.

In short, it's a simple, effective solution to the problem.

The defendant and his counsel raise this precise point in the present case. And here's the entirety of what Justice Wiley has to say about it:

"Edwards says the trial court instead could have ordered 'clear masks' or use of 'a face shield with a cloth drape along the bottom.' Edwards offered no evidence an objective authority appraised these alternatives to be effective in combatting the disease’s spread."

With respect: this is an incredibly insufficient answer to the argument.

Let's just take the "clear mask" part. There's zero evidence -- or even intuition -- that clear masks are any less effective than opaque masks, much less that they're any less effective than the crappy, loose fitting cloth masks that trial courts routinely allow people to wear. And since when has the standard been that you're required to establish evidence from an "objective authority" (e.g., a government official) before something that's facially obvious gets accepted as true? Moreover, even if that's the standard (and it's not), there's ample evidence that such face masks are equally effective; indeed, are much more effective than tons of the existing masks on the market (here's an example of a particularly good one, I suspect).

Dispensing with this argument with the single, wholly inadequate sentence (IMHO) of Justice Wiley's opinion gives neither that legal contention nor the defendant (and his lawyer) the respect and reasoned attention they deserve.

Which sometimes happens when you're way too much in a rush to dispense with arguments in a concise and ostensibly efficient fashion.

Plus, I gotta say, there's also a sentiment underlying the opinion that's (1) totally understandable, but (2) at some level, profoundly troubling.

I understand that at stake is a global pandemic that's killed and seriously injured a ton of people. Indeed, I'm extraordinarily sympathetic with that view. Truly.

But Justice Wiley's opinion not only recites (powerfully) that reality, but also quotes Jefferson to argue for its import. Here's the part of the opinion I'm talking about, in which Justice Wiley writes:

"A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion. The words of Thomas Jefferson bear weight. “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” (quoted in Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials (5th ed. 2006) p. 66.)"

With respect: That sentiment doesn't belong in a judicial opinion. Not this one, and not any one.

We're talking about the Confrontation Clause. A constitutional requirement. Part of the Constitution. It's not optional. It doesn't just apply in peacetime. It doesn't get dispensed with in a pandemic. It's written in the Constitution precisely because we think it's a critical liberty, and precisely because we're worried that, in a crisis, policymakers might be inclined to dispense with it. It's not just "written law". It's the foundation of American democracy. It's what and who we are. Period.

Maybe -- and even then, I'm only saying maybe -- Jefferson might be right if literally the existence of our Republic was at stake and that only the violation of a particular liberty could save it. But that's very much not the case here; COVID kills people, but in no universe does it end American democracy. Ditto for wearing a transparent (as opposed to opaque) mask. Indeed, the real threat to liberty -- borne out in an ample series of examples throughout history -- is that, in times of crisis, both politicians and even some judges are willing to sometimes dispense with the Constitution (or ignore this "written law") in the service of an ostensibly greater good. (See, e.g., Koramatsu, Ex Parte Milligan, etc.).

I get that Justice Wiley says later in the opinion that the "written law" here isn't violated in any event. Perhaps reasonable minds can disagree on that point. But the argument that, even if it is, we can ignore the Constitution in the present case in the service of a greater good just very much doesn't work for me.

In the end, some arguments deserve actual deep thinking, instead of rapid-fire rejection. This is one of those arguments.

Wednesday, March 16, 2022

In re Adoption of EB (Cal. Ct. App. - March 16, 2022)

I'm super pleased that the Court of Appeal finally elected to publish this opinion. I'm also somewhat surprised it didn't get more attention when it first came out -- or perhaps I'm missing something.  It seems like a super important case.

Fair warning: For many, this opinion might only seem to solidify California's reputation as a land of "fruits and nuts" -- and, to be clear, I'm talking about its people, not its produce. But I view it as the opposite.

Justice Raye writes the thing in a little bit of a peculiar fashion (for me, anyway), so I'm going to revise the introduction and statement of facts into an alternative that (I hope) gets the point across a bit more quickly. Here's how I'd have written it:

"Can a child have three parents, if everyone's cool with that? Sure. Why not.

Three people -- Mary, Jim, and Susan -- decided that they wanted to have and raise a child together. Mary, Jim and Susan have been in a committed, polyamorous relationship for 15 years. Logistically, it only takes two to tango and make a kid, so the three decided that Mary and Jim would be the biological parents, but that the three of them would raise the child together. (Technically, only Jim and Mary are married, since -- at least currently -- you can only have one spouse, so the choice of Jim and Mary also made a little bit of legal sense as well. They married back in 2007, back when only opposite sex couples could be married. Susan was part of this troika at the time, and has been ever since.)

So the three parents-to-be write all this down in a written agreement spelling out their mutual desires, and Mary gives birth to the child (Eddie) in May 2019. All three of the parents are present throughout the full labor and delivery process, as well as when (shortly after his birth) Eddie starts suffering complications and gets admitted to the neonatal intensive care unit (NICU). 

After Eddie was (happily) discharged from the hospital, Susan -- who's a university professor -- elected not to teach classes in the summer, and then took a three-month maternity leave in the fall, which gave her a full six months to provide full-time care for Eddie. During those six months, Susan bottle-fed Eddie during the week, comforted him, engaged in age-appropriate play activities, coordinated and took him to doctors’ appointments, and took him to weekly swim lessons and library story time events. When Susan returned to work in January 2020, she went back only part time to allow her more time to care for Eddie. When the COVID pandemic began, all three of the parents began working from home and continued to share equally in parenting Eddie. Like he does with Jim and Mary, Eddie seeks out Susan for comfort, complains to her when he is hungry, and giggles at her efforts to amuse him. Eddie calls Susan “momma.” All three of them jointly discuss and agree upon parenting decisions for Eddie.

From the very beginning, the three parents wanted to formalize their committed co-parenting relationship with Eddie. Not only did they sign a written agreement, but shortly after his birth, the three sought to have Eddie adopted by Susan. California allows children to have three parents, though that's typically when there's a problem with one or more of the original parents. But the statute doesn't require such a problem, so the Susan, Mary and Jim all ask that Susan be added as one of Eddie's parents. The trial judge, however, was dubious, and wanted some cases about letting a third parent into the picture in settings (like this one) where there's not a problem with the first two. Finding none -- or, at least, nothing she liked -- the trial judge denied the request for the adoption. Even though everyone agreed to it and no one opposed it.

Given all that Susan had already done to parent the child, the trial court found (correctly) that Susan was a "presumed parent" under the statute. But the trial court thought that having two good parents was more than enough for anyone, so (barring any problems) there wasn't need for a third, and on that basis denied the consensual adoption.

But that's not the way California rolls. We reverse and remand for the reasons explained below."

I'm certain that Justice Raye would be at least slightly more formal than this, but I've just set forth pretty much everything you need to know about the facts. As well as (in a non-legal way) why the case comes out the way it does.

As far as I can tell, there were no amici who submitted briefs in the case, which is somewhat surprising to me. Or at least none are listed on the caption.

Also, I've made up the names of the parents; Justice Raye uses initials, which gets very confusing at times. Plus, unless I'm mistaken, the only time that Justice Raye mentions the would-be adoptive parent (who I call "Susan"), he refers to her simply as "appellant", rather than using her initials. Which, even beyond being a bit impersonal and clunky, is especially confusing here because the caption says that the only appellant is "M.B.", which is the initials of the biological mother (not the would-be parent). So unless "Mary" and "Susan" both have the initials "M.B.", there's either a mistake somewhere or it's inherently confusing -- maybe both.

Anyway, here's the takeaway: Yes, you can have three parents. At least potentially. Particularly in settings like this one and in which everyone's on board for it.

And, honestly, why not? The more the merrier. If three people want to take on the responsibility to raise a child, hey, more power to 'em.

So maybe it "takes a village" to raise a kid, and if, in that village, there are three particular people who want to mutually take on the primary responsibility, I can only say: (1) That's fine by me, and (2) mazel tov.

Tuesday, March 15, 2022

Gann v. Acosta (Cal. Ct. App. - March 15, 2022)

I love that this opinion came out today. Even wholly apart from the fact that otherwise, the Ninth Circuit and California appellate courts would have published absolutely nothing today.

It's a riddle in the form of a legal opinion. Or, more accurately, it involves a question about language; in particular, the meaning of a particular term. Here: Step-parent.

We all know, at least loosely, what stepparent means. In its traditional form, you're a kid, your parents get divorced, and your mother or father marries someone one. Stepparent.

Obviously, with modern alternative familial arrangements, things can get complicated. But for present purposes, we don't need to get into any of that.

Let's say that a statute or regulation lets you visit someone who's your "stepparent". (In truth, here, the regulation says that you can't visit a stepparent, but to explain why would require more detail than is presently necessary.) Normally, we would know what that would mean.

But let's figure out if A can visit B in the following hypotheticals. The common facts (to make it simple for now):  A is the child of Mom and Dad, Mom and Dad divorce, and then Mom marries B. Clearly, at this point, B's A's stepparent. That's true (in common parlance) even after A's no longer a minor and no longer living in Mom and B's house. So let's assume that fact for present purposes:  B's an adult and out of the house, but formerly lived with Mom and B.

Hypo 1: Mom and B then divorce. Does B remain A's stepparent?

Hypo 2: Mom dies. Mom and B never divorced, and were living together at B's death. Does B remain A's stepparent?

I'm not sure I know the answers to these questions, honestly. Today's case makes me realize that who we call a "stepparent" -- even in "traditional" settings" -- is pretty darn unclear. Sure, when Mom and B are married, I generally know the answer. And, legally, I know that when Mom dies, it's the equivalent (legally) to a divorce, in that both events sever the marriage.

But I don't know if the answers to Hypos 1 and 2 are both No, or both Yes, or whether the answer to one is different than the other. (I suspect that a "No, then Yes" answer would be more popular than "Yes, but No.")

The case here approximates No. 2. With various complexities; in particular, that the inmate here killed the person I've called "B" in the hypos (e.g., his "Maybe Stepparent"), and currently wants to visit his spouse, but the regulation says you can't have such visits if (inter alia) you killed your stepparent.

I'll leave you in suspense as to whether the Court of Appeal says that B was the inmate's "stepparent" or not. (And you'll be disappointed in the answer regardless, since the opinion simply gives deference to the agency, so doesn't really answer the actual linguistic question of what the word actually mean.)

Monday, March 14, 2022

FHFA v. Saticoy Bay (9th Cir. - March 14, 2022)

Usually, when the Ninth Circuit certifies a question of state law to a state supreme court, it makes sense (or at least arguable sense) to do so, because the law's unclear and it's an important issue. As a result, were I on the relevant state supreme court, I'd almost always agree to answer the certified question.

This, by contrast, is one of those rare cases in which I might be persuaded tell the Ninth Circuit to pound sand and answer the question itself.

The certified question is a concise one: "Under Nevada law, must a series LLC created pursuant to Nev. Rev. Stat. § 86.296 be sued in its own name for a court to obtain jurisdiction over it, or may the master LLC under which the series is created be sued instead?"

As far as I can tell: (1) There's no split in the Nevada appellate courts on this issue, which is one reason (at least traditionally) that state law questions get certified, and (2) The absence of that split -- or, indeed, any prior cases on this precise point -- suggests that this is not an issue that comes up at all frequently, and it's (most definitely) (3) Not a critically important one to the world at large in any event, and in this particular case, (4) As the Ninth Circuit panel admits, not only does the text of the underlying statute seem to give the answer itself, but there also seems to be a Nevada Supreme Court case from last year that already provides a pretty good hint as to what the answer should be. ("The district court held that appellees were not required to name the individual series LLCs as defendants, on the ground that Nev. Rev. Stat. § 86.296(2), by providing that series LLCs “may” be sued in their own name, uses permissive rather than mandatory language. . . . We note that the Nevada Supreme Court recently decided A Cab, LLC v. Murray, 501 P.3d 961 (2021). A Cab, LLC characterizes Nev. Rev. Stat. § 86.296(2) as “provid[ing] a list of optional, but not mandatory, attributes for a Series LLC.” Id. at 977. Although this statement suggests that series LLCs need not be sued in their own names, it does not directly answer the question before us."

I admit that, if the answer seems obvious, the Nevada Supreme Court could simply request briefing and rapidly decide the case in a page or two (or ten).

But I'd also totally understand it if the Nevada Supreme Court instead responded: "Hey, Ninth Circuit, do your own work; don't simply make us do it for you. Come to us with important cases, not penny ante stuff like this."

Wednesday, March 09, 2022

McDougall v. County of Ventura (9th Cir. - March 8, 2022)

Imagine that a panel with three very conservative, extremely pro-Second Amendment judges writes an opinion in a gun rights case that holds that it's unconstitutional to shut down gun stores for 48 days in the midst of a global pandemic. Imagine further that the author of that selfsame opinion pens a separate concurrence to his own opinion that snarkily tells everyone that his left-leaning colleagues will try to take the case en banc and then mockingly drafts an opinion for them to purportedly make their jobs easier.

What's the chance that opinion gets taken en banc?

Correct. 100%.

Tuesday, March 08, 2022

In re Marriage of Zucker (Cal. Ct. App. - March 4, 2022)

Divorce cases are always tough, and sometimes reveal disturbing facts that no one in their right mind would want to be made public. But this one is really at one end of the extreme in that regard. For that reason, I super strongly hope that the opinion will be amended at some point to take out some identifying details. If only because the public nature of the facts underlying this particular opinion are brutal to the litigants -- as well as to their children.

The case basically involves whether the prenuptial agreement that the spouses signed is enforceable. The ex-wife claims that it's not because she wasn't in the right mental space when she signed it, and the ex-husband says she was. Because the ex-wife's mental state is at issue, there's got to be at least some level of discussion of those particular details. Understandable.

That said, the opinion uses the full names of the spouses. It even includes the full names of their six children, all of whom are old enough to read -- and several of whom have easily identifiable names (sufficient, for example, for me to look up their Instagram and other social media accounts in around ten seconds). In short, the published opinion enables a reader to learn some incredibly personal details about particular individuals.

And, boy, are those details personal.

Check out just some of 'em:

"The parties met sometime in 1993, when Mark was 33 years old, and Kim was 29. Kim became pregnant in June 1993 and at Mark’s request had an abortion. After Kim became pregnant again in late 1993, Mark told her to terminate the pregnancy, but she refused to do so. Thereafter, in early January 1994, the parties discussed marriage. . . . 

The parties had disparate economic backgrounds. Mark is the cofounder and co-CEO of a hedge fund, [Name of Hedge Fund]. . . . Mark had a net worth of about $10 million and made about $2 million a year.

Kim had a history of psychological troubles. When she was 12, her parents divorced. Kim developed an eating disorder (anorexia), for which she was hospitalized. She attended and graduated from a public high school. After attending UCSD for part of a year . . . . In 1988, after leaving UCSD, Kim admitted herself to the Westwood Psychiatric Hospital for treatment of her eating disorder. After stealing a prescription pad and obtaining medication with it, she was transferred to a locked ward where she was raped at knifepoint. . . .

The PMA contained terms that were very unfavorable to Kim. Kim waived her community property interest; would receive a one-time payment of $10,000 upon moving out of the house; would receive limited spousal support of $6,000 per month, with modest increases; and waived any inheritance rights which would arise from Mark’s death during the marriage. The PMA set forth Kim’s net worth as approximately $242,000 and Mark’s as approximately $5.8 million. . . .

In June 1993, after Kim became pregnant the first time, she and Mark spoke about getting married. Mark spoke to Kim about the “general outlines” of the PMA in June “before she had her first abortion.” They had between five and 10 conversations about Mark’s net worth. He told her he was worth about $10 million to signal to her that he was worried about getting married without a prenuptial agreement.

When Kim told Mark she was pregnant the second time, he told her to have an abortion. They discussed alternatives to marriage, including that Kim would have the baby and they would not get married, or that Kim would have an abortion or put the baby up for adoption. Ultimately, Kim believed her options were to marry Mark with a PMA, to have an abortion, to have the baby and put the child up for adoption, or to raise the child as a single mother.

Kim scheduled an abortion for January 4, 1994, although she did not go through with it. At the time, Kim’s doctor noted that she was “distraught.” . . . About a week after Kim told Mark she did not go through with the abortion, they began to discuss marriage. Mark told her that he would not marry her without a PMA. Mark specified two options if she did not have an abortion. Kim could sign the PMA and Mark would consider, but not commit to, marriage, or Kim could have the baby on her own and Mark would financially support the child."

Let's assume for a moment that Mark and Kim were your parents. Would you want these facts described in a published opinion?! (Would you even want to know about them?) Particularly one that includes your (readily identifiable) name as well in a footnote?

I get that this is a messy divorce -- the spouses each spent seven figures in attorney's fees on it. For that reason, I imagine that the kids already know a fair piece about the background of their parents' marriage -- if only because of that 57 day (!) trial on the validity of the prenup.

But knowing something and having it disseminated to the world in a published opinion are two very different things.

This one might be much better off by deleting last names and taking out the names of the six kids.

Just sayin'.

Monday, March 07, 2022

Sheen v. Wells Fargo Bank (Cal. Supreme Ct. - March 7, 2022)

You can see where all this comes from, no?

Chief Justice Cantil-Sakauye writes the opinion for a unanimous court that says that banks don't have a common law duty to respond to loan modification requests for borrowers. Maybe it's a good idea, maybe it's not, but that issue's really for the Legislature. If lenders and borrowers want to create a contractual relationship, that's fine, and there are (arguable) advantages to leaving 'em to it. If the Legislature wants to create affirmative duties, great, courts will enforce those, but we won't create a noncontractual duty of our own. I get it.

Justice Liu writes a concurring opinion and says, yeah, I agree, but seriously, Legislature, take a hard look at this, because borrowers are often getting hosed and lenders have an incentive to hose 'em. That makes sense too -- though I doubt the Legislature needs much prodding on this front from the courts, honestly. But, still, if that's what you're feeling, sure, feel free to speak out.

Justice Jenkins authors a concurring opinion as well, and this is the only one I'm a bit iffy about. He writes to rationalize his joining today's opinion with an earlier opinion -- back in 2014 -- that he joined when he was on the Court of Appeal that held that lenders do indeed have such a duty; an opinion of which the current opinion expresses disapproval. I get why Justice Jenkins might want to do so, but honestly, I think it's unnecessary. It's not like Justice Jenkins wrote the earlier opinion; he simply joined the thing. Justices do that sometimes, even when they might not be so certain about the result (it's going to be a 2-1 anyway, after all). Plus, that was a while ago, and it's merely one of a plethora of cases that are on a justice's plate on the Court of Appeal. Maybe times have changed. Maybe you thought more deeply about the issue and changed your mind upon further reflection. Maybe (as here) you're a new justice on the California Supreme Court and don't feel like dissenting in one of your first cases on an issue as to which you're pretty much sympatico with the otherwise-unanimous majority opinion anyway. Okay, if you want, I guess you can tell a story about why the one case came out the way it did and today's comes out the other way. But, sometimes, you're just better off leaving the thing be. It's a pretty much unanimous decision either way. Sometimes there's no need to spill a lot of ink on a point that's idiosyncratic anyway.

But, hey, to each their own.

Thursday, March 03, 2022

In re Rejuvi Labs (9th Cir. - March 3, 2022)

I don't think I'm confused easily.  Not about legal doctrine, anyway.  But I'm honestly confused about one aspect of this opinion by the Ninth Circuit earlier today.

It's about whether a federal bankruptcy court should recognize a (particularly large) default judgment entered by an Australian tribunal against a U.S. corporation.  The district court refused to recognize the judgment because the Australian court didn't have personal jurisdiction over the defendant, but the Ninth Circuit reverses.

Let's take this in steps.  It's a federal court (bankruptcy) suit, so federal law applies, but federal law says we determine the validity of foreign judgments under the the law of the forum state (here, California).  So California law applies.  Check.

California law says that it doesn't recognize foreign judgments if there's no personal jurisdiction.  Check.

California law then defines what it means by a lack of personal jurisdiction, which is defined as either (1) no jurisdiction under California law (e.g., the Due Process Clause), or (2) no jurisdiction under the law of the forum rendering the judgment; here, Australia.  Got it.  Check.

Today's Ninth Circuit opinion discusses (1) at length, and says that there was jurisdiction here because defendant voluntarily appeared in Australia to try to vacate the default.  That waives jurisdiction, it says, because under California law, you waive jurisdiction if you appear on the merits, instead of just arguing jurisdiction.  And since, here, the defendant didn't just argue jurisdiction, there's waiver, thus jurisdiction.

That's certainly true under California procedure.  But two things.

(1) Is it true under Australian law?  The California statute is binary:  it says no jurisdiction (hence no enforcement) if there's either no jurisdiction in (here) California or (here) Australia.  Presumably we've got to see whether Australia -- or, more particularly, the particular Australian state there -- follows California's distinction between general and special appearances, no?  Yet nowhere in the opinion does it discuss the law of Australia on these points.  Maybe Australia's the same way; they do, it seems, have a procedure for "conditional" appearances.  Maybe defendant didn't make this argument, but I would think we'd at least have to mention it.

(2) Is that really what the California statute means when it says no jurisdiction under California law?  I'm pretty certain that what California mostly (if not entirely) means when it says no jurisdiction under the law of California it means minimum contacts; e.g., International Shoe and the like.  The district court thought that test wasn't satisfied here, and the Ninth Circuit doesn't dispute that fact.

But the Ninth Circuit says that under California procedure, if you don't specially appear, you waive personal jurisdiction.  True.  But does the statute's reference to California law really incorporate the California personal jurisdiction procedural rules?  And, yes, this is an Erie-type of question; sorry to take you back to that troubling first year civil procedure stuff.  With an international twist, no less.

There are lots of procedural things I'm quite confident that the statute doesn't intend to incorporate. For example, in California state court, it's not okay to challenge jurisdiction through a non-California-admitted lawyer, but surely we wouldn't say "Aha!  In Australia, your lawyer wasn't admitted to the California bar when she showed up to challenge jurisdiction, so you thereby consent to jurisdiction under the statute."  It seems at least plausible to me that the California statute says:  "Look, if there's no jurisdiction under minimum contacts in Australia, then we don't recognize the judgment, and we're not incorporating California procedural rules on this issue, just the whole minimum contacts point."  If so, the district court might well be right.  At least we'd have to grapple with that argument.

So, in the end, I'm just looking for a little bit more here.  Before I basically give away this entire U.S. corporation to a particular Australian citizen who was allegedly injured and got a default judgment entered against it, anyway.

Tuesday, March 01, 2022

LGCY Power v. Superior Court (Cal. Ct. App. - March 1, 2022)

These cases reflect the near-universal rule that state court judges in Utah love Utah's courts (and laws), whereas California state court judges often love California's courts (and laws).  Hence the competing lawsuits -- and multifaceted litigation -- here.

The Court of Appeal ultimately holds that the later-filed California lawsuits can go forward.  Which is fine, and accurately reflects the controlling legal principles.

But, as a practical matter, that Utah case is going to be resolved first.  At which point claim preclusion (and the Full Faith and Credit Clause) will likely apply.

But, yes, Justice Snauffer is correct:  it's not over yet.  So the FFC Clause doesn't apply.


Monday, February 28, 2022

People v. Phillips (Cal. Ct. App. - Feb. 28, 2022)

I'm used to seeing 70+ opinions in murder cases -- typically, death penalty cases -- in the California Supreme Court.  It's less common to see them in the Court of Appeal, where (as here) the defendant "merely" receives a life sentence (albeit LWOP).

Michael Phillips murdered a 75-year old man who was already dying of late-stage lung cancer.  His motive was the classic one:  money.

For the first dozen or so pages of the opinion, Justice Stewart recites the facts of the case in exhaustive detail, but my overall reaction was:  "Seriously?  That's all they've got on the defendant?  This seems like an incredibly shaky case."

But then I read the next ten pages.  At which point I got it.  Yeah, I can totally see why Mr. Phillips was convicted beyond a reasonable doubt.  No eyewitnesses or confession or anything like that; the victim was killed at his home, and his body wasn't discovered for several days.  But the evidence against Mr. Phillips was nonetheless fairly damning.

Deliberately taking the life of another person for money seems a particularly heartless crime.  Sadly, however, that's not a rare motive.

Friday, February 25, 2022

Balistreri v. Balistreri (Cal. Ct. App. - Feb. 24, 2022)

If, perchance, you want to know everything there is to know about how you can modify a trust agreement -- in particular, whether you're required to get the signatures notarized -- this is definitely the opinion for you.

Spoiler alert, though:  Both the majority and the concurrence agree that when the trust instrument says quite clearly that any amendment "shall be . . . acknowledged by a notary public," well, yeah, if you want to get the thing amended, you've got to get those signatures notarized.

Perhaps, especially, when -- as here -- the amendment happens the day before the guy dies.

A fact that's technically irrelevant to the holding but that nonetheless may provide some color as to why the panel (like the trial court) was eminently persuaded that the amendment here was ineffective.

Thursday, February 24, 2022

In re Darien R. & S.S. (Cal. Ct. App. - Feb. 24, 2022)

It's a testament to the times in which we live that in both of these published opinions today, (1) a mother is using methamphetamine (sometimes, daily), and (2) we take her kids away, permanently.

In the first case, the mother was horribly addicted to methamphetamine and both she and the father were using it every day.  Three kids.  In the second case, the mother had her parental rights terminated after the police saw her pushing her four-month old baby around in a stroller (1) at midnight, (2) when it was below 50 degrees outside.

Not fantastic parenting.  At all.

You'd hope that cases like this would be incredibly sporadic (or, preferably, non-existent).  Rather than twice in a single day.

And that's only the published ones.

Wednesday, February 23, 2022

Dow v. Lassen Irrigation Co. (Cal. Ct. App. - Feb. 23, 2022)

Justice Robie's opinion is spot on.  Indeed, I can summarize this 14-page missive in a single paragraph (of my own creation):

"The watermaster appointed by a court pursuant to a judgment doesn't have standing to appeal a decision of a trial court giving water to a particular person; instead, the other landowners (if any) thereby deprived of water are the only ones who might be able to appeal. Even if the trial court's decision seems wrong, or makes the watermaster's job more difficult, that doesn't matter -- the watermaster is getting paid for its work, so more work simply means more money, and that's not harm.  In any event, if the watermaster doesn't like the burden, it can quit.  Because it's not harm, it doesn't have standing, so the watermaster's appeal of the decision below is hereby dismissed."

There you have it.

Or, as we sometimes say on the basketball court, "No blood, no foul."

Tuesday, February 22, 2022

Grand Canyon Trust v. Provencio (9th Cir. - Feb. 23, 2022)

With the long weekend, there hasn't been much from the Ninth Circuit or California Court of Appeal lately.  But this morning, I read this opinion, which struck me as a fairly good example of "balls and strikes" jurisprudence.

The case involves uranium mining in the Grand Canyon, and whether it should continue.  Now, personally, I'm not exactly thrilled that we're puking out radioactive material alongside one of the natural wonders of the world.  So if you asked me whether it was worth it (as a society to do so), I don't have a definite sense one way or the other (without knowing more), but would lean towards a "Nah, let's leave the place pristine" vote.

But, as a judge, that's not what one does.  You gotta follow the law.  And the law here is admittedly disputed and unclear, but what we gotta do is simply try to figure out what it says the best way we can -- regardless of where it leads.

Legally, the limited question here is whether, under a particular statute, it's okay to ignore sunk costs when deciding whether particular mineral deposits are valuable.  The relevant law withdrew certain public lands from mineral exploitation (including those here), but also says that companies that own existing claims there get to continue to exploit them if there are "valuable mining deposits" there.  So one thing you've got to do to figure out if the deposits are (in fact) "valuable" is to figure out if it'll cost more to dig 'em out of the ground than the deposits are worth.  'Cause if not, then the deposits aren't (practically) valuable.

Easy enough, at least in theory.  But here, some of the expenses that'd be involved in mining the stuff have already been expended -- roads, the first fifty feet of the mine, etc.  We call those "sunk" costs -- a term that's somewhat ironic (but particularly appropriate) given that we're talking in part about a mine shaft.  Do you count those costs as part of the relevant costs?  Or do you ignore them since they were already spent?

That's the legal issue in the appeal.

On that point, I have a definite sense of what's right.  You ignore them.  The money has already been spent.  You can't get it back.  If it only costs, say, $10 million more of drilling to get $50 million worth of gold, it doesn't matter that you previously spent $45 million to get where you are.  It's worth it to spend the $10 million.  So the minerals are valuable.  (Even though, in retrospect, you shouldn't have started the project in the first place.  That ship has already sailed.)

Here, that fact's dispositive.  Since it means that the uranium is, in fact, valuable.  Which means it gets mined.  Even though I'd probably prefer that it not be.  The law's the law.  (And I say that even without the Chevron deference that the panel applies here; in my view, even wholly on the merits, it's a basic and sound economic principle that you ignore sunk costs, so that's the right way to resolve things even if the relevant agency hadn't already spoken on the point.)

I'm not saying that every case gets resolved purely on the meaning of words, without consideration at all of the underlying result.  That's not, in fact, the case.

But this is a good example, to me, of one that properly does.

P.S. - Unexplored in the opinion is how you resolve this issue for materials the value of which can (and does) wildly fluctuate.  For example, here, the company started the mining process when uranium was expensive, but stopped once it became cheap.  Then, when that commodity became expensive again (at the time, $56/pound), wanted to restart, and that's the price at which the cost/benefit ratio was assessed in this opinion.

But for what it's worth, up until about six months ago, uranium prices had fallen again, and were back down to $30/pound.  Which may well mean that the mineral isn't "valuable" any longer.  So does that mean the lands were withdrawn at that point?  And what about now, when the price (in September) spiked up to $50/pound, and has now settled at around $45/pound.  Still "valuable"?  Or no longer valuable?  How do these things work out when commodity prices fluctuate, as they invariably do?  No clue, but interesting.

Friday, February 18, 2022

Rogers v. Dzurenda (9th Cir. - Feb. 14, 2022)

The three different opinions in this death penalty case -- four, if you count Judge Hurwitz twice -- take various different approaches.  But I can summarize the one point on which they all agree in a single sentence:

"Are we seriously appointing lawyers to defend people in death penalty cases who passed the bar four months ago?!"

Wednesday, February 16, 2022

People v. Clements (Cal. Ct. App. - Feb. 16, 2022)

Defendant asked her ex-husband to kill her brother, and he did so.  That's pretty rare.  Usually you don't kill your brother.  Even then, you usually don't get your ex-husband to do it.

Also unusual:  the brother was only 16 years old.  Not your typical murder victim.

Add to the complexity:  The motive for the murder was, in part, the prior sexual relationship.  Between the sister.  And the brother.  And the ex-husband.  All three.

For these and other sordid details, check out the opinion.