Monday, October 03, 2022

Karton v. Musick, Peeler, Garrett LLP (Cal. Ct. App. - Oct. 3, 2022)

There are a lot of similarities between Jarndyce v. Jarndyce -- a fictional case -- and the dispute at issue in this morning's opinion, which is unfortunately all-too-real.

It begins with a simple default judgment in 1999 for $65,000 for attorney's fees allegedly owed to Beverly Hills divorce attorney David Karton.

Which then morphs into a two-decade-plus monster of multiple lawsuits, appeals, collateral attacks, and enforcement actions all across the country -- Pennsylvania, Tennessee, Arkansas, etc. -- raising all sorts of different issues, the unifying theme of which is the attorney's fees allegedly owed to the "prevailing party" in all of the various and sundry related lawsuits. Fee requests that are often monstrously large; to take but one example, a $1.66 million fee request.

(Remember, by the way, that the original default judgment was for a mere $65,000 in fees.)

And I'm not even mentioning the various orders involving sanctions, contempt, etc.

Sometimes litigation takes on a life of its own. A monstrous life.

This is one of those cases.

Friday, September 30, 2022

People v. Boukes (Cal. Ct. App. - Sept. 29, 2022)

You learn from the very outset of the opinion that it's a murder case with a gang enhancement, and most of these cases are some subset of the Crips/Bloods or Norteno/Sureno gangs. The name of the gang involved wasn't mentioned at the beginning of the opinion, so I looked at the caption to see if that gave me any data on the front.

Nope. Defendant's name is Noy Estul Boukes. Interesting. Never seen anything like it before. I wonder about its origin, and continue to read the opinion.

At which point I discover that it's a white supremacist gang. That's unusual, though not unprecedented. You see some of those opinions coming out of prison assaults and the like. Though this one's from outside, in Hemet. Something different again.

On the white supremacist front, the only gang I'm familiar with is the Aryan Brotherhood, which seems the undisputed leader of the pack on this front. Justice McKinster tells me all about the significance of the numbers 14 and 88 to these types of gangs, which I already know. (I won't dignify the meaning of these numbers by repeating what they mean, but you can read the opinion to find out if you want.) But he also tells me that the gang at issue here is the "COORS" white supremacist gang. Which I've never heard of before. So that's interesting.

The opinion never tells me what "COORS" stands for, but I look it up and quickly discover those facts elsewhere. ("Comrades Of Our Racial Struggle") I also discover what it means when someone has a Coors Beer tattoo, which I've actually seen before. Huh. Never knew that. Thought it just meant they really liked the brand. Now I know the truth.

There's a whole lot of doctrine in the opinion, and even a concurrence, all of which you can read if you'd like. But I just thought I'd share for now what I learned about this particular gang.

Not the most pervasive gang in the universe, nor the most important information in the universe, but worth knowing, I figure.

(Here, by the way, is what Mr. Boukes looks like. 6'5". With a ton of face and neck tattoos. Yikes.)

Wednesday, September 28, 2022

People v. Lastra (Cal. Ct. App. - Sept. 28, 2022)

The Court of Appeal affirms the trial court's recusal of the entire District Attorney's office in San Luis Obispo from prosecuting some Black Lives Matter protesters, holding that the extrajudicial comments of the District Attorney might suggest that he might not prosecute the matter in a neutral fashion given his demonstrated antipathy to the BLM movement. Instead, the California Attorney General's office will be the ones prosecuting the cases.

At one level, the opinion is incredibly moderate. The opinion is unsigned. It repeatedly reminds the reader that public officials (including the DA) have the right to free speech. It expressly says that its holding is based in substantial part on the standard of review; that the trial court is in a better position than the Court of Appeal to determine the politics and factual circumstances in San Luis Obispo, so there's a great degree of deference that's required.

At the same time, however, the opinion does contain a couple of things that I found a little one-sided. For example, on page five of the opinion, the panel lists several statements about the BLM movement that facially might demonstrate a lack of impartiality; for example, describing "the Black Lives Matter movement as a ‘Marxist’ group who promote ‘cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.’” That seems fairly bad, right?

But you gotta read the opinion carefully to realize that those aren't statements by the District Attorney. They are instead statements made by someone else entirely. The statement above, for example, was made by a guy named Tony Perkins, and the only connection at all between the District Attorney and Perkins that's listed is that "“August 11, 2020 – Mr. Dow appeared on Washington Watch with Tony Perkins."

Look, sometimes, appearing in public with someone matters. If I appear in public with a guy in a Nazi uniform, for example, and hold his hand or shout "Right on!" or what have you, yeah, that's fairly decent evidence of my sympathies.

But taking the worst thing that Person X has ever said and attributing it to Person Y because the latter at one point in his life was at a meeting with the former? That seems to go a bit too far.

The second example the opinion mentions is in the same genre. It says: “September 4, 2020 – Mr. Dow explained his charging decision in the ‘PRotect Paso’ Facebook group. Documents attached showed animosity to the Black Lives Matter group – their Constitutional right. These claim that the BLM movement is ‘domestic terrorism;’ ‘down right evil, no brains or souls,’ and posted pictures of a BLM billboard burning in flames. Members of the group have discussed their skills as hunters and claim they will use these skills to protect Dan Dow, and ‘protect our own.’"

Now, if the District Attorney had said these things, that'd be incredibly meaningful. But that an elected official attempted to explain a political decision to a particular Facebook group (!) generally says very little about the speaker. Nor does the fact that members of that particular Facebook group have said particular things mean that those same statements should somehow be imputed to the person who spoke to that group.

To take something from my personal experience: On several occasions, I've spoken at Federalist Society events, including one at the Ronald Reagan library. Does that mean that I can legitimately be tarred with the most horrible things that the most horrible person in the Federalist Society has ever uttered? Or am similarly tarred with the worst events of the Reagan presidency?

I think -- or at least hope -- not.

There's at least one piece of evidence in the opinion that's a bit closer to accurate: “October 11, 2020 Mr. Dow appears alongside Candace Owens and spoke at a fundraiser for the ‘New California,’ a secessionist organization. At the event, Ms. Owens called BLM ‘one of the most racist movements that ever existed in this country.’ When questioned, Mr. Dow wrote a letter to the Tribune advising, ‘Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.’ Mr. Dow has been quoted as stating that ‘She speaks the truth.'"

You get why that seems qualitatively different, right? There's a lot closer tie to what the speaker (Ms. Owens) said there.

Anyway, the entire DA's office gets recused, and the Court of Appeal affirms.

Tuesday, September 27, 2022

Environmental Health Advocates v. Sream, Inc. (Cal. Ct. App. - Sept. 26, 2022)

The Court of Appeal holds that you don't have to put a Prop. 65 warning on bongs because, at least in theory, they could be used for something other than marijuana.

I wonder what the threshold is there. What if 99%+ of the things are used for marijuana? 99.9%? (Which, I suspect, reflects reality.)

Plus, though the opinion doesn't mention it, doesn't everything you'd put in a bong cause cancer? I mean, I guess you could put cheese or something in it, in theory. But it wouldn't exactly work that way.

I was also thinking that if Prop. 65 warnings were required for things that might expose you to marijuana smoke, then the beach parking lot across the street from my house should definitely have a warning as well. Particularly at sunset. 'Cause that thing is Pot Central.

Thursday, September 22, 2022

Spirit of Aloha Temple v. County of Maui (9th Cir. - Sept. 22, 2022)

Plaintiff Fred Honig challenges the decision of Maui County not to give him a permit; the trial court granted summary judgment to Maui. Given the underlying facts of this case, and the underlying character traits of the plaintiff, who do you think's going to win the appeal? Here are the facts:

"In 1994 Fredrick Honig bought eleven acres located at 800 Haumana Road in Maui. The land is zoned for agricultural use, designated within the state agricultural and conservation district, and subject to environmental protections for coastal lands. Honig developed the land without permits. He cleared and graded the land, cut roads on the property, changed the contours of coastal conservation land, and altered the route of a natural watercourse. He appears to have built illegal structures, including housing structures, and installed cesspools near drinking water wells. Although several Hawaiian archeological sites existed on the property, including an agricultural terrace, burial crypt, and irrigation ditch, Honig failed to provide the requisite monitoring plans for their preservation. Through a nonprofit entity, Honig also used the property as a venue to conduct commercial weddings, vacation rentals, retreats, and events—all without the requisite permits. By late 2015, around 550 weddings were performed on the property.

Honig was repeatedly put on notice that these activities required appropriate permits but continued to violate land use regulations. In 2007 Honig formed a new nonprofit, Spirit of Aloha Temple, as “a branch of the Integral Yoga movement, a modern branch of the ancient Hindu yogic tradition.”

That year Honig applied for a special use permit for a “church, church[-]operated bed and breakfast establishment, weddings, special events, day seminars, and helicopter landing pad.” The County of Maui Planning Commission denied that permit, noting several buildings without proper permits; general problems with the helicopter pad’s location; and potential adverse impacts to surrounding properties from loud music, helicopter noise, and increased traffic."

I couldn't be more certain, by the way, that Mr. Honig's desire to found a church on the property was totally sincere, and not merely a scam to circumvent the usual rules about developing the property.

So, given the facts, who do you think wins?

That's what I thought too.

Wrong. The Ninth Circuit, in an opinion written by Judge Ryan Nelson, not only reverses the grant of summary judgment to Maui County, but also essentially holds that the plaintiff is entitled to win his lawsuit.

Justice. Right?

Wednesday, September 21, 2022

Almond Alliance v. Fish & Game Comm'n (Cal. Supreme Ct. - Sept. 21, 2022)

I talked about the Court of Appeal's "Bumble Bees Are Fish" opinion when it first came out. And today the California Supreme Court denies review (with Justice Guerrero voting the other way).

Chief Justice Cantil-Sakauye writes a separate concurrence in the denial of review, joined by Justice Corrigan and Groban. Her concurrence is worth reading at length, because she's exactly, 100% correct. She says:

"Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal, which determined that bumble bees, a nonaquatic invertebrate, are susceptible to being listed as endangered under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.; CESA) because that statute applies to fish (Fish & G. Code, §§ 2062, 2067 & 2068), and “invertebrates” are included within what the Court of Appeal deemed to be the applicable definition of “fish” (id., § 45). (Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 341.) 

Yet if experience is any guide, our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” (Cal. Rules of Court, rule 8.500(b)(1)) warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple. Careful analysis of a statute to divine legislative intent can sometimes yield results that might seem surprising at first blush. Courts engaged in this task have interpreted “less” as “more” (Amalgamated Trans. Loc. 1309 v. Laidlaw Tran. Ser. (9th Cir. 2006) 435 F.3d 1140, 1146) and “unlawful” as “lawful” (Scurto v. LeBlanc (La. 1938) 184 So. 567, 574). Long ago, the United States Supreme Court concluded that the “seas” referenced in one statute required no water at all (Murray’s Lessee v. Baker (1818) 16 U.S. 541, 545); quite recently, it determined that a fish is not a “tangible object” (United States v. Yates (2015) 574 U.S. 528, 536).

These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature’s intent in a variety of circumstances. A statute may be construed in a manner that goes beyond the literal meaning of its text to avoid an absurd result the legislature could not possibly have contemplated. Sometimes courts perceive a scrivener’s error or typo that must be corrected to vindicate the intent behind a measure. Or the context surrounding the use of a word or phrase within a statute can convey that it carries an unusual meaning, peculiar to that law. The Court of Appeal below concluded that the interpretive question before it fell into the last of these categories, with the consequence that bumble bees should indeed be regarded as “fish” under the CESA.

Even if the Court of Appeal arrived at what might superficially seem like a counterintuitive result, that alone does not establish that it erred. Moreover, our decision not to order review here does not prevent us from considering the CESA’s reach in some future case, at which time we may agree or disagree with the Court of Appeal’s analysis. In the interim, the Legislature is in a position to make whatever statutory amendments it may regard as necessary or useful. For although it may not be exceptional for a court to determine that a particular word or phrase within a statute carries a meaning that deviates from common parlance or understanding, such decisions also can provide notice to legislators that some clarification may be in order."

My reaction to reading those words was simple and straightforward:

I'll miss her wisdom when she leaves the bench in January.

Kernan v. Regents (Cal. Ct. App. - Sept. 21, 2022)

You're 39 weeks pregnant. Your baby's in a breech position, so you go to the hospital to get the baby turned around -- what's called an ECV (External Cephalic Version). Although today's opinion doesn't explain the procedure, it's basically having the doctor put her hands on your baby from outside your stomach and physically forcing the baby around. (Not a fun process, I might add -- not having gone through it myself, obviously, but having seen it performed.)

Immediately after the procedure, they monitor your baby's heartbeat for 40 minutes, and everything seems fine. So you go home. But after you leave the hospital, you no longer feel the baby move. Ever. So the next day, concerned, you go back to the hospital. At which point they perform an ultrasound and tell you that your baby's dead.

You ultimately file suit, claiming that the version negligently caused the baby's death the next day. You didn't file your lawsuit all that promptly, so the defendant raises the statute of limitations as a defense. The key question on summary judgment is this:

Would a reasonable person have "suspected" -- that's the standard -- that the version the doctor performed on you and your baby was potentially the cause of the baby's confirmed death the very next day?

Plaintiff says no; defendant says yes.

The trial court agrees with defendant and grants summary judgment.

The Court of Appeal reverses, holding that a reasonable factfinder might well conclude that someone had no reason to suspect that the baby's death was caused by the ECV performed on the baby the previous day.

When related issues come up in other lawsuits as to what a reasonable person might suspect, this opinion is one that I imagine lots of plaintiffs will elect to cite. Because if I were the mother -- or father, or nurse, or doctor -- I suspect that given the close proximity in time, I'd definitely have at least suspected that the ECV might potentially have been the cause of the baby's death.

Still do, I might add.


Tuesday, September 20, 2022

Blue Cross of California v. Equiltox (Cal. Ct. App. - Sept. 20, 2022)

I have waited in vain today for a meaty published opinion that I felt like talking about. There was nothing from the Ninth Circuit today -- not even a "No Opinions Filed Today" notice -- and the two cases thus far from the Court of Appeal were fine, but not scintillating (to me, anyway).

On days like that, sometimes, I go ahead and check out the unpublished opinions from down here in San Diego. If only to entertain myself.

And when I did, for a moment, I thought I had accidentally clicked the wrong button. Actually, for quite a bit longer than a moment.

The latest unpublished opinion -- and hence the one I first read -- was this one. But when I looked at the caption, I thought that I must have somehow pulled up cases from the wrong division. Because I wanted to see cases from the 4/1 (San Diego), and yet this opinion clearly states right on the caption that it's from Orange County. That's in the 4/3.

So I went back and pulled up the cases again, making extra sure I pulled up only those from the 4/1.

Yet there was the opinion again.

Then I double-checked the top of the caption. Where it says, quite clearly, "COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE."

But what? The case is from Orange County. Judge Servino. What's up?

I read the whole opinion trying to figure out the scoop. No dice. The opinion mentions that the present case is related to a different one. But that one's from Orange County was well. Yet that one, too, seems to have a case number that starts with D. Meaning, yet again, the 4/1.

To reiterate: What's an Orange County case doing in the 4/1? Did the 4/1 do a hostile takeover of the 4/3, and if so, how come I never knew about it until today?

So I pull up the docket sheet for both the current case and the previous related case. At which point I see a reference to an intradistrict transfer order.in both cases (here and here). A transfer order that was entered shortly after the appeals were initially filed.

Okay, so now (1) I know I'm not crazy, and (2) that the case was indeed transferred.

But I still am left completely puzzled as to why.

It's not like the cases have anything whatsoever (as far as I can tell) to do with San Diego. It's a case brought by Blue Cross (which is everywhere) against a company called Equaltox, with a proposed intervenor -- the movant and appellant -- from Los Angeles (the "LA Good Samaritan Pathology Group").

So, again: Why San Diego?

My initial thought was that, maybe, the OC justices were simply busy, so as an administrative matter, maybe some cases were thrown down to SD. That might perhaps in part explain how the intradistrict transfer order was entered so rapidly in both cases.

But then I looked up the actual rule that authorizes intradistrict transfers. Which only made me even more confused. Because I'd have thought that the presiding judge would be the one to make such an administrative order (if one was indeed required). Yet the rule doesn't allow that. Not for workload reasons, anyway. The only reason the PJ had order an intradistrict transfer is because (1) there's an earlier related cases in the other division, which I don't see anywhere here, or (2) due to recusals that leave less than three judges available in the initial division, which seems utterly implausible for this run-of-the-mill appeal. 

So, if true, that leaves only the California Supreme Court as the entity that could authorize the transfer. But I don't recall reading or hearing anything about that anywhere. Did I miss something? (To be clear: that's totally plausible, I just don't remember anything like that happening.)

Anyway, it's now almost 3:00 p.m., and I have to pick up my youngest from school. So it remains a mystery to me how this OC case somehow makes its way to the Court of Appeal in SD.

If anyone out there knows, shoot me a line. I've love to hear the deats.

Monday, September 19, 2022

Salazar v. Target & Walmart (Cal. Ct. App. - Sept. 19, 2022)

I don't know whether Justice Codrington had anything to do with the timing of these two opinions, but it was certainly intriguing.

This morning, the Court of Appeal released the first opinion. Here's the first paragraph of that opinion, which recounts quite concisely what the opinion is about:

"After David Salazar bought Target Corporation’s White Baking Morsels incorrectly thinking they contained white chocolate, he filed this class action against Target for false advertising under various consumer protection statutes. The trial court sustained Target’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Target’s White Baking Morsels contain white chocolate. We disagree, in large part because the White Baking Morsels’ price tag describes them as “WHT CHOCO,” which could lead a reasonable consumer to reasonably believe that they contain white chocolate. We therefore reverse."

There's 17 more pages of text (plus pictures!) that follow, but you get the basic point. The packaging appears to show something that looks darn similar to white chocolate, and then the price tag says "WHT CHOCO" on it, so, yeah, a reasonable consumer might perhaps think that the thing contains chocolate.

That opinion was published relatively early in the day. I read it. Sounds totally plausible.

Then, at 4:00 p.m. or so, the second opinion gets published. That one's also brought by Mr. Salazar. This time, against Walmart. It's another product that's (allegedly) packaged to look like white chocolate -- in this case, something called "White Value White Baking Chips." The opinion yet again contains photos of the packaging. Moreover, some of the paragraphs in this second opinion are lifted verbatim from the first opinion. (It's the same appellate panel, the same trial judge, and the same plaintiff's counsel in each case.)

But here's the rub: In the second case, there's no price tag -- or anything else -- that says "WHT CHOCO" or anything like it. Something that the first opinion says "in large part" was the basis for the holding there.

So the second case comes out the other way, right?

Nope. Same way. Reasonable consumer might be confused. Reversed.

Were I to be a big believer in conspiracies -- and, to be clear, I'm not -- I'd have thought that Justice Codrington deliberately published the first opinion first as a way of easing into the second. Lead with the easier case and then use that one to justify the same result in the harder one.

'Cause there was a meaningful time gap between the publication of those two opinions.

But, being the non-tin-foil-hat-wearer that I am, I suspect there's a much more mundane explanation lurking somewhere about.

In either case, reasonable minds might be confused. So it gets past the demurrer stage and, most likely, settles. Probably not for a lot. But at least for a little.

Thursday, September 15, 2022

City of Oakland v. Oakland Raiders (Cal. Ct. App. - Sept. 15, 2022)

NFL creates meaningless, non-binding and open-ended set of "considerations" that team owners might want to think about when deciding whether or not to let teams move cities in order to stop Congress from enacting proposed legislation that might otherwise tie their hands. Oakland Raiders ask to move to Las Vegas and owners vote 31-1 to let them move. City of Oakland sues NFL and everyone who voted to let the team move claiming that it's a third party beneficiary of this (essentially meaningless) contract entered into by the NFL teams.

The Court of Appeal rightly disagrees, and affirms the judgment dismissing the complaint.

This is one of the easier billion-dollar appeals you'll ever see resolved. Not tough, in my view.

(It was much more difficult, by contrast, to figure out which professional football teams were which in the caption. When you look at the list of the represented parties, most of the teams are readily identifiable; e.g., "The Chicago Bears Football Club," "The Rams Football Company, LLC," etc. But you're a true NFL pro, by contrast, if you can tell me without looking it up which team is formally "PDB Sports Ltd" or "Pro-Football, Inc." I was able to figure out pretty much everyone else, but those two you either need to look up or figure out by process of elimination.)


Wednesday, September 14, 2022

Arega v. BART (Cal. Ct. App. - Sept. 14, 2022)

Sometimes the Court of Appeal gets incredibly angry with a particular attorney and says very harsh things. Other times, the Court of Appeal simply lets the facts speak for themselves.

This is one of the latter occasions.

Appellant's attorney is Dow Patten from San Francisco. It's an employment discrimination suit brought against BART. Here's a sample of the kind of lawyering with which the Court of Appeal (and trial court) had to deal:

"On June 17, Plaintiffs filed their motion pursuant to Code of Civil Procedure section 473(b) (“section 473(b)”) to set aside the judgment entered in BART’s favor. The motion was based on inadvertence, surprise, mistake or excusable neglect. Plaintiffs’ counsel asserted that on April 6, the day before the hearing on the summary judgment motion, he was out of the office due to ill health (flu-like symptoms) and was unable to review the court’s tentative ruling, which was “inadvertently not contested.”

On July 7, the trial court issued an order denying the motion to set aside the judgment, noting that a motion for relief under section 473(b) must be made within a reasonable time and the moving party must show it acted diligently in seeking such relief. The court found Plaintiffs’ counsel failed to offer any reason why the motion for relief was not filed until more than 60 days after entry of judgment for BART, and more than 70 days after BART’s summary judgment motion was granted. The court found counsel’s lack of diligence barred Plaintiffs from any discretionary relief under section 473(b). . . .

[On appeal] Plaintiffs argue that “controlling California authority mandates that the court continue a hearing on summary judgment where a [party’s] attorney is unavailable due to health reasons.” As Plaintiffs do not cite to any controlling authority that mandates such health-related continuances, we disregard this argument. (See Badie, supra, 67 Cal.App.4th at pp. 784– 785.) . . .

When a litigant repeatedly provides no citations to the record, the rule violation is egregious. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166–167.) “We may disregard a [party’s] statements of fact when those statements are unsupported by citations to the record. [Citation.] And we will not scour the record on our own in search of supporting evidence.” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 (Sharabianlou).) Here, Plaintiffs’ citations to Smith’s declaration take the following form: “(CT ____, See Appellants’ Evidence Submitted in Support of Summary Judgment Alena Smith Decl. ¶2),” providing no volume or page number citation to the record in none of the multiple references to the declaration. We disregard Plaintiffs’ arguments of direct evidence because of their consistent failure to provide volume and page number record citations to such evidence.

Moreover, the Smith declaration is not in the record. On appeal, we presume the judgment to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham, supra, 2 Cal.3d at p. 564.) An appellant bears the burden of 21 overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859– 860.) The failure to provide this court with an adequate record not only fails to satisfy an appellant’s burden to demonstrate error, it also precludes review of any asserted error. . . .

[Footnote:] In their reply brief, Plaintiffs claim without detail or explanation that “[t]he manner in which [BART] filed its Motion for Summary Judgment has caused several problems with preparation of the record.” Plaintiffs state that the “clerk’s record in this appeal contains errors and several of the documents identified in [their] Notice of Designation of Record have yet to be filed with the Court of Appeals.” They state that they “anticipate filing a corrected Opening Brief once the record is corrected;” “have requested the trial court cure the defects in the record on appeal;” and “respectfully request that oral argument be stayed until a corrected record is provided to the Court and Appellants have provided amended briefs with cites to the corrected record.” They ask that we direct the trial court to correct the record on remand.

We decline all of Plaintiffs’ requests and will not delay resolution of this appeal. Plaintiffs filed their opening brief in December 2021. At that point, given counsel’s inability to cite to the record, it was apparent that essential evidence was missing from the record. In the nine months since this appeal has been pending, Plaintiffs’ counsel has not asked this court to augment the record in any way, despite its awareness of its shortcomings. Neither the respondent nor the appellate court has a duty to augment an inadequate record. It is the appellant’s burden to provide an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) In the absence of one, we presume the trial court determination under review is correct. (Jade Fashion, supra, 229 Cal.App.4th at p. 644.)

We also reject Plaintiffs’ request to stay oral argument until there is a corrected record and amended briefs. The day after Plaintiffs filed their reply brief, we issued a “Notice of Oral Argument Election” to the parties, indicating that to proceed with oral argument, the party seeking to proceed with oral argument must file a request and proof of service within 10 calendar days of the notice. No such request was received by this court by any party, and oral argument on this appeal has therefore been waived. . . .

Plaintiffs argue they established BART’s reasons were pretextual with evidence of the following: (1) Plaintiffs’ qualifications for the promotions; (2) Evaluation Committee members’ collaboration on applicant scores to remove evidence of bias; and (3) BART’s failure to take steps to ensure race was not a factor in Foreworker selection process. Not so.

Again, Plaintiffs’ briefing includes no citations to the record. In three pages of argument with over a dozen citations to evidence, there is not a single citation to “the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) While there are multiple references to “CT,” or the clerk’s transcript, every one is left blank. We disregard any fact unaccompanied by a proper record citation. (Sharabianlou, supra, 181 Cal.App.4th at p. 1149.)

Further, none of the proffered evidence appears in the record. Plaintiffs’ arguments refer to deposition testimony of Eric Thomas, who Plaintiffs’ explain was a non-African American promoted over them for the 2012 Foreworker position; the declaration of Alena Smith, the Chief Steward and silent observer discussed supra; and two witnesses testifying as BART’s persons most knowledgeable (Conteh and Moore). We have located none of this evidence in the record."

When the facts say everything you need to say, vitriol is sometimes entirely unnecessary.

Monday, September 12, 2022

Avilez v. Garland (9th Cir. - Sept. 8, 2022)

I thought a fair piece about this opinion over the weekend. Not about doctrine or anything, although there's surely important stuff at issue there. (The cases is about the availability of habeas relief and bond availability for people who are in immigration detention for prolonged periods; here for over a year.) Instead, I was mostly thinking about language -- words.

Chief Judge Murguia's opinion uses the term "noncitizen" to describe the petitioner in this case. Judge Bea writes a concurrence in which he decries the use of that term, and instead markedly prefers to describe the relevant class of individuals as "aliens." Chief Judge Murguia defends her use of this term in a footnote:

"This opinion uses the term noncitizen unless quoting language from the immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become a common practice of the Supreme Court, see Patel v. Garland, 142 S. Ct. 1614, 1618 (2022) (Barrett, J.); United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021) (Sotomayor, J.); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (Kavanaugh, J.) (“This opinion uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” (citing 8 U.S.C. § 1101(a)(3)), whose lead on matters of style we ordinarily follow, and of the Board of Immigration Appeals, e.g., Matter of Dang, 28 I. & N. Dec. 541, 543 (BIA 2022), whose decisions we review. Second, even if that were not the case, “[c]areful writers avoid language that reasonable readers might find offensive or distracting—unless the biased language is central to the meaning of the writing.” Chicago Manual of Style Online 5.253, https://www.chicagomanualofstyle.org/book/ed17/part2/ch05/psec253. html. The word alien can suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,” Alien, Webster’s Third New International Dictionary 53 (2002), while the word noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (5th ed. 2011), avoids such connotations. Thus, noncitizen seems the better choice. Respectfully, we do not see how this choice “comes at a real cost to litigants.” Judge Bea Concurrence at 43. Litigants may use either word, and we do not think our choice here will cause judges to “respond negatively” to litigants who use the term alien. See Judge Bea Concurrence at 43."

Judge Bea takes the opposite view, including for the reasons discussed in the above footnote. For one thing, Judge Bea says that he prefers the word "alien" because, he argues, the term "noncitizen" is "textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico." This seems to me by far the weakest of Judge Bea's arguments. Yes, he's a "citizen" -- of Mexico. But he's a "noncitizen" of the United States, and everyone understands that's the relevant comparison. Moreover, Judge Bea's preferred terminology suffers the same flaw. On his theory, the term "alien" is "textually inaccurate" as well, since the petitioner is not "alien" to Mexico. So I don't find this particular argument persuasive at all.

But what really had me thinking deeply over the weekend was Judge Bea's personal background and experiences. One upside of a diverse judiciary is that you sometimes get different perspectives. And here, one interesting thing is that Judge Bea was previously subject himself to deportation proceedings -- he's from Spain, and then Cuba, and after he attended Stanford on a non-immigrant visa, the United States tried to kick him out on the theory that he avoided the draft during the period in which he was competing on the basketball team for Cuba during the 1952 Olympics.

So Judge Bea's got some personal background in this area. And uses that background to effect, saying that the term "alien" "is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings."

That's useful. It's sometimes informative to get a personal perspective from someone who's not just looking at things from an isolated, academic viewpoint.

That said, with respect, that a particular word might not have been offensive in the 1950's does not say much, I suspect, about whether that term might be offensive in 2022. We said a lot of things, and used a lot of words, during that prior era that would -- quite rightly -- not be deemed polite or permissible in the modern era. This view reminded me of the occasional argument by those of a different generation  that it's okay to use the word "colored" to describe a certain minority group because (1) that word was commonly employed in the 1950s, and (2) remains what the "C" stands for in the NAACP. Both of the predicates of that argument are true. But still; that's not a word that one would use in the modern era, much less in a judicial opinion. (Even if, I might add, an outdated statute continued to contain that old language.)

Nonetheless, I thought that Judge Bea's perspective was valuable. Even if, in the end, I think that Judge Murguia has the better of the argument.

If only because, as Judge Bea himself argued, "distinctions matter. Words matter."

On that, we all agree.

Wednesday, September 07, 2022

Aguilar v. Walgreen (9th Cir. - Sept. 7, 2022)

Three brief comments about today's opinion from the Ninth Circuit:

First, what a clusterfart. (As we say in this mostly-suitable-for-family blog.) One group of lawyers files a wage-and-hour class action against Walgreens, a month later another group of lawyers files a similar suit, and then the two groups of lawyers fight it out for years over which one gets the settlement booty. It's bad enough to have to fight the other side; to have to fight off lawyers on your own side as well makes it truly a hassle.

Second, on the merits, I don't disagree with Judge Bea's holding that there's no appellate jurisdiction here or his refusal to grant extraordinary mandamus relief. But when he takes a brief look at the merits to see if there's clear error, I'm not at all confident that he's right when he says:

"Here, Gallo/Wynne argued on behalf of Objector Vasquez that the proposed settlement 'is not fair, it is not adequate, and it is not reasonable,' and that it should therefore be denied. But Gallo/Wynne simultaneously advised certain putative Caves class members to join the proposed settlement, which necessarily seems to require the position, contrary to that of Objector Vasquez, that the settlement is fair, is adequate, is reasonable, and that, therefore, the settlement should be approved."

Just because you advise one of your clients to join a proposed settlement doesn't "necessarily [] require the position" that such a settlement "is fair, is adequate, [and] reasonable." It might instead be totally good for one client -- the client you advise to accept the thing -- but totally bad for another and/or bad overall. Take a proposed settlement, for example, that gives everyone who ever used RoundUp a flat $300 as payment for their injuries. I might well tell my 101-year old grandmother who used RoundUp once or twice and who's in perfect health to take the deal, while simultaneously telling my 55-year old brother who used the product repeatedly, has Non-Hodgkin Lymphoma, and has incurred over $1 million in medical expenses treating this terminal disease to refuse the deal. (These examples are not hypothetical, by the way; sadly, in the latter case.) Just because a deal is a good one for one client doesn't mean it's good for the class or fair, adequate and reasonable overall, nor does that mean there's a per se conflict. Because each person is different -- or at least might be. There perhaps is a potential conflict, but it's not per se.

So the right answer here, I suspect, but with some overly broad language that doesn't strike me as right, and that might perhaps be used to poor effect in the future.

Finally, and least importantly: I always thought the name was "Walgreens" for both the store and for the company. Nope. "Walgreen" for the company. No s. Even though the stores, website, and everything else have the last letter. It's the Walgreen Co.

You learn something new every day.

Tuesday, September 06, 2022

People v. Nadim (Cal. App. Div. - Sept. 6, 2022)

Okay, I understand this holding given the relevant statutory language. But now that I've read it, when the prosecutor politely sends me a letter asking me to voluntarily show up to court in order to save the state the time and hassle of arresting me, I'm definitely going to tell them to pound sand. Because I want that stuff sealed.

Seems to me like something the Legislature might want to fix.

Patsalis v. Shinn (9th Cir. - Sept. 6, 2022)

Atdom Patsalis was a 21-year old who took some stuff; basically, he went into people's garages, cars and sheds (and, on occasion, homes) when they weren't there and grabbed whatever could find. ("His offenses were non-violent and . . . he stole random items (e.g., a drill, a flashlight, a telescope) with a total value of roughly $5,000."). This was basically his modus operandi; when he was an even younger kid, he had been convicted of criminal trespass and third degree burglary.

So what sentence do you give this 21-year old for this latest neighborhood stealing spree?

Answer: Arizona sentences him to . . . 292 years in prison.

Judge Forrest authors the majority opinion and holds that this sentence is "harsh but reasonable." Judge Christen dissents, and says that it's unconstitutionally disproportionate.

The Supreme Court won't grant certiorari, so this 21-year old gets to spend the rest of his life in prison.

Friday, September 02, 2022

U.S. v. Guerrero (9th Cir. - Sept. 2, 2022)

Here's a neat little reminder about how one deciphers the "holding" of an opinion when each of the judges on the court writes separately to articulate an idiosyncratic view about how the case should come out.

Mr. Guerrero was stopped for tinted windows while driving a passenger vehicle, had 20,000 rounds of (legal) ammunition in plain sight in his vehicle, was on a highway 20 minutes away from his home in Tucson, and was super cooperative and consented to a search, but the police officer put him in handcuffs and detained him for an hour while he brought in federal officials to see whether the guy should be busted for attempted ammunition smuggling to Mexico.

Judge Gould says that Mr. Guerrero (1) was arrested, but that (2) there was probable cause for his arrest. Judge Bea says that Mr. Guerrero (1) wasn't arrested, but was only "detained," so there doesn't need to be probable cause, but (2) there was probable cause anyway. Judge Sidney Thomas says Mr. Guerrero (1) was arrested, but that (3) there wasn't probable cause.

So what's the holding, if any?

Answer: That (1) it was an arrest, (2) with probable cause. Basically what Judge Gould says.

Even though technically the result is contained in a two-page per curiam opinion that says basically nothing. (And that doesn't mention how one interprets these types of cases and instead says only "We affirm the denial of Guerrero’s motion to suppress because of the consistent conclusions of Judge Gould and Judge Bea, representing a majority of the panel, that we should affirm the denial of the motion to suppress. Affirmance is required by the conclusions of the judges in the majority, even though the reasoning of Judge Gould and Judge Bea in their separate concurrences filed herewith is different.")

Wednesday, August 31, 2022

Simmons v. Arnett (9th Cir. - Aug. 31, 2022)

There are a lot of interesting Ninth Circuit opinions this morning. As well as a lot of them generally; the Ninth Circuit published eight separate opinions today, and I'm not nearly finished reading all of them.

I nonetheless thought I'd at least briefly mention this one. In which the Ninth Circuit holds that if you're in the midst of getting the crap beaten out of you by someone else, in a random attack initiated by the other person, and are not fighting back in any way (but merely being pummeled by the other guy)), you can't sue if a state official decides that in order to "break up" the fight, he shoots you three times and fractures your leg.

Because, I mean, what are we supposed to do? Let the fight go on for a while? Clearly, we've got to shoot someone, and if that person happens to be you, because you're the one in the line of sight, well, sucks to be you, doesn't it?

Tuesday, August 30, 2022

24th & Hoffman Investors v. Northfield Ins. Co. (Cal. Ct. App. - Aug. 30, 2022)

To be honest, I was unpersuaded by a majority of the published opinions by the Court of Appeal today. So perhaps I'm just in a particularly bad mood.

But only one of them -- this one -- do I believe should be granted review by the California Supreme Court and summarily reversed.

While I was reading it, I was stunned that there'd be three justices on the Court of Appeal who'd sign on to something like this. I was even more surprised when I saw that the opinion was written by Justice Tucher, who's incredibly smart and (I'd have thought) eminently reasonable.

It's an insurance coverage case, which I understand will make a ton of readers instantly disinterested in the outcome. Notwithstanding that practical reality, it's an incredibly important -- and pernicious -- opinion.

The usual, longstanding rule in insurance law is that if you've got an insurance policy and someone sues you, the insurance company has to defend you in that lawsuit if any of the claims in that action might be covered by the policy, even if other claims in that same suit might not be covered. So if, for example, you are sued for assault and battery, and the insurance policy only covers you for battery, the company has to defend the lawsuit on your behalf. Do they have to pay any judgment ultimately entered against you for assault? No, since that's not covered by the policy. Since since the suit seeks covered damages against you for something covered by the policy (here, assault), they've got to defend the suit and, if you're ultimately found guilty of assault, pay any covered damages.

Makes sense, right? Is definitely the law. Here in California and elsewhere. In short, if you buy a policy that covers you for a claim -- assault, negligent driving, whatever -- and someone sues you raising one of those claims, the insurer has to defend the lawsuit. That's an obligation imposed by both law as well as by the policy language.

Today's opinion, however, says that it's super simple for the insurer to totally circumvent that rule. One that I'm quite confident virtually every insurance company will employ to its heart's content and that will practically negate any actual insurance coverage for policyholders.

The Court of Appeal says that all the insurer has to do is to include -- as in the present case -- a "catch-all" clause that says that if the lawsuit includes any uncovered claims, then all of the claims are categorically uncovered. The Court of Appeal holds that such a provision is enforceable, makes sense, will be upheld, and legitimately negates coverage under the policy.

Nonsense.

I get that that's what the policy might in fact say. But in my view, that's 100% unenforceable and against public policy. For the identical reasons the California Supreme Court (amongst others) have repeatedly set forth in previously imposing a duty to defend such "mixed" actions.

As a practical matter, virtually every suit -- and almost certainly any suit under a business insurance policy like the one here -- includes both covered and uncovered claims. Take your own automobile insurance policy, for example. Say you get into an accident and get sued. You'll typically be sued for negligence, of course, and that's a covered claim. But the plaintiff might also plead a variety of claims -- alternative or otherwise -- that aren't covered by the policy. Particularly if they're not 100% sure they'll win the negligence claim. Maybe they'll plead in the alternative that you were drunk, or speeding, and perhaps the policy excludes coverage for specified criminal conduct. Or perhaps they'll also include a claim for punitive damages, which definitely aren't covered under the policy (and legally can't be).

Normally, until today, that wouldn't matter. Your insurer would still have to defend you (and, in all likelihood, settle the lawsuit on your behalf). That's what you bought insurance for, after all.

But after today, all the insurer has to do is to include a "catch-all" clause that says that if there are any excluded claims under the policy (e.g., punitive damages), then all of the claims are hereby excluded from coverage. And, suddenly, boom, you've got zero coverage. You're on your own.

Let me reiterate: virtually every business lawsuit contains a mix of covered and uncovered claims. If the holding today is indeed the law, then there's basically no coverage at all, in stark contrast to what we've always thought were the expectations of an insured. 'Cause you should have read the fifty-page policy (or what have you) with a much finer toothcomb, and gone to law school and then practiced law for ten or twenty years and realized how subsidiary catch-all provisions like the one here actually works. For it means that there's essentially no practical coverage under the policy at all.

I appreciate and understand that if you're a person who believes that markets are perfect and consumers can be screwed if they don't read things close and that there's no such thing as an unenforceable clause in an insurance policy then, yeah, today's opinion makes sense, because that's what the written contract says and so that's what we'll enforce. (Don't get me started, by the way, on the claim in the opinion that the clause here is truly "clear and conspicuous," which it's totally not by any reasonable interpretation of that phrase -- unless you count every clause in an insurance contract as clear and conspicuous based on the fact that there's 100+ different places in the policy where the insurer includes a boilerplate insert in bold that at the top of every page essentially says "READ THIS CAREFULLY THIS TOTALLY MATTERS THIS IS THE IMPORTANT STUFF," 'cause, yeah, every insured definitely reads all 50-odd pages super carefully so long as you include that boilerplate.)

But, honestly, that's not how I would describe the California Court of Appeal in general, or Justice Tucher in particular. Yet today's opinion, in my view, does precisely that. It lets an insurance company totally take away legitimate coverage by inserting a clause that is completely unnecessary and contrary to how insurance policies have been interpreted and applied by California courts for fifty-plus years.

Does an insurance company have to cover uncovered claims? Absolutely not. Do they have to pay damages for them? Nope. Do they even have to defend uncovered claims? I could see an argument that says they don't, as long as those uncovered claims are severable and can be separately defended.

But can an insurance company refuse to cover even covered claims -- entirely -- just because there's a single claim in the underlying lawsuit that's not covered by the policy? Nope. No way. Not in my view, anyway. I'd one thousand percent hold unenforceable any provision in a policy that attempted to do so. Because it's not how insurance does, or should, work, nor is it consistent with reasonable expectations of coverage.

But the Court of Appeal today holds otherwise. So as of today, those provisions definitely work.

Unless the California Supreme Court grants review and reverses.

Which I definitely hope it does.

People v. Cheatham (Cal. Ct. App. - Aug. 29, 2022)

Reading this opinion by Justice Duarte generated two thoughts in my head.

First, I totally understand why the Court of Appeal releases the appellant, Mr. Cheatham. Does Mr. Cheatham have a mental disorder, one that led (for example) to the "not guilty by reason of insanity" finding in his prior criminal trial? Definitely. He hears voices. He does some strange things. It's fairly clear that his mental condition results in him violating the law on occasion, sometimes in bizarre ways; e.g., in court, trying to "escape" in situations in which a more rational person would totally know that the effort ain't gonna work. But as far as anyone can tell -- and this includes all the evidence presented at his civil commitment trial -- he's not actually a danger to anyone (other than, perhaps, himself). And the statute at issue only lets you be locked up beyond what would otherwise be your term of imprisonment if you "represent a substantial danger of physical harm to others." Nothing that Mr. Cheatham has ever done, it appears, has ever actually harmed anyone else, or resulted in such a risk. Hence the Court of Appeal's ruling that says he's entitled to be released.

At the same time, my strong sense is this: Mr. Cheatham will almost certainly get recommitted. Pretty much to a certainty. He's a bipolar schizophrenic, and has a substance abuse disorder. He's imperfect at best in taking his medications. He still hears voices in his head, albeit at a lower level. And even in the hospital, he "at times stood up during group meetings for no apparent reason, asked other committees for money, and, for a brief period, smoked cigarettes through his nose." Things are, I strongly suspect, only going to get worse on that front once he's released and no longer under supervision. He'll get put back in. And I can only hope -- and it's a hope, not a certainty -- that it's not for hurting someone.

But, yep, I get it; the statute requires a particular type of evidence, and there wasn't pretty much any type of relevant evidence admitted at his trial.

Which may perhaps dictate the result, but doesn't alleviate my concern.

Second, the Court of Appeal also holds that Mr. Cheatham is entitled to double jeopardy protections -- not as a matter of constitutional law, but rather as a result of the part of the statute that says that in the relevant proceedings, "the person shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings." One of those is the prohibition on double jeopardy. Hence, just like in criminal prosecutions, if the evidence that was submitted against the guy is insufficient, there's not a retrial; there's an acquittal. The guy can't be tried again for the same offense.

You see why the Court of Appeal comes out that way.

That said, I wonder how those principles really apply to prosecutions that, as here, involve "status" charges. The claim is that Mr. Cheatham is a danger to others. Yes, the Court of Appeal holds that the evidence against him at his prior trial was insufficient, so he's entitled to be released. But today's another day. What -- either practically or legally -- stops the prosecution from filing a new complaint that says that as of today he's a danger to others? For basically the exact same reasons as before; only, this time, with a doctor who gives more detail and says the necessary things. 

With a criminal case, you're being charged with a particular offense, and you can't be charged with that offense again. With civil commitment, by contrast, you're being charged basically for being who you are, and the threat that you (allegedly) represent. I get that, presumably, the prosecution would need to introduce some fact that wasn't introduced at the prior (insufficient) trial. But that's not likely all that difficult given that pretty much everything one does counts as "evidence" of what type of person you are, and what your mental condition is, at the time. 

Seems to me like you can just charge the guy again with basically the exact same thing the next day.

Now, maybe the answer is "Well, okay, but it's gotta be a new proceeding, not merely an extension of his prior commitment." Fair enough.

Though that seems just like it's a different spelling of the same word, no?

Monday, August 29, 2022

Hoffman v. Young (Cal. Supreme Ct. - Aug. 29, 2022)

I've previously waxed poetic about how the California Supreme Court is really smart, often unanimous, blah blah blah. Maybe the net result is a relatively "boring" state supreme court, but that's a boredom that I can more than tolerate; indeed, one of which I'm often affirmatively proud.

That said, today, there's a split opinion; 4-3 (-ish), even. All of the justices, mind you, agree on the result, which (in this case) is a remand. But how they get there, and their underlying attitude, is slightly different.

The question is whether the landowner here is liable for a dangerous recreational condition on his property (here, a race track). The applicable rule is that, in essence, the landowner is potentially liable if she invited someone onto her property (e.g., a paying customer, a friend you asked to come over, etc.), but not if the landowner merely "permitted" someone to show up -- e.g., just had a trail or racetrack or whatever and let the local teenagers use the thing whenever they wanted.

In this case, we know that if the landowner had personally invited the victim to race on the racetrack, she'd be potentially liable. But what if, as here, the person who invited the victim was instead her 18-year old son, who lived on the property but asked the friend (another teenager) to come over? Same rule?

The Court of Appeal thought that a kid living in the house who invites a friend over is basically the same as the parent herself, but the California Supreme Court said: "Not so fast." Hence the remand.

But there are two competing visions here. The majority opinion, written by Justice Corrigan, views fairly suspiciously the attempt to impose liability. It applies traditional agency principles and says that kids aren't typically "agents" for their parents so it might well not be the "landowner" who gave the invite, and sends the case back down for a more robust evaluation of the facts. But the concurrence, authored by Justice Kruger, agrees with a remand, but is far more plaintiff-friendly, and clearly suggests that there should be liability -- one way or the other -- in a situation like this one. Justice Kruger's concurrence is multifaceted (and incredibly well-written), so an abbreviated version definitely won't do it justice. But here's the basic sense:

"The parties’ core dispute at all stages of this litigation has been whether Gunner’s personal invitation to Mikayla can be attributed to his property-owning parents on some form of agency-law theory, thereby bringing his invitation within the (d)(3) exception for persons invited to the property 'by the landowner.' . . . [But] [t]o employ the language of agency law in the context of filial relations raises questions to which traditional agency principles can supply no clear answers: What does it mean to say a child is the 'authorized agent' of his parent? When can a child’s invitation to a friend be said to have been made on 'behalf' of a parent, who derives no personal gain from the invitation — aside, that is, from the gain that comes from the social benefits to her child? . . . Rather than asking whether a child or other household member acts as a landowner’s 'authorized agent' when he invites a friend over to play — the sort of question we might ask if this were a corporate merger or a real estate deal rather than an ordinary social visit — the common law background to section 846 suggests we might ask, more simply, whether the child was authorized to invite friends over.

A contrary reading of section 846 — one in which only invitations by a landowner or her agent, in the technical, business-oriented sense, suffice for the (d)(3) exception — would generate quite unusual results. The most obvious, and perhaps most troubling, would be that children ordinarily would be without any remedy for injury when friends invite them over to play. We should not lightly attribute that intent to the Legislature, particularly given California’s “strong public policy to protect children of tender years” (People v. Olsen (1984) 36 Cal.3d 638, 646), and particularly when everything we know about the statute suggests it was directed to quite different concerns. . . . The oddities presumably would not stop there. Consider a large multigenerational family occupying property to which just one or two members of the family — say, a daughter and her spouse — formally hold title. The family hosts a backyard social gathering. Two guests — one invited by the daughter and one by a different member of the family — fall onto the same unreasonably dangerous lawn sprinkler while playing a recreational game of soccer, sustaining equally serious injuries. A narrow understanding of what it means for an invitation to be issued 'by the landowner' could grant the daughter’s guest the right to sue for recreational injury, while the other, identically situated guest is left without a remedy — though no obvious reason appears for the difference."

These arguments resonate with me. Very much so. Less, I suspect, with those who sign on to Justice Corrigan's opinion. (Though I'll note that Justice Liu signed on to both opinions, which makes sense at one level but which is also kinda funky on another, since I think the sentiments behind each are fairly disparate.)

I know that what opinion a justice joins depends on a variety of different things, particularly when, as here, the result is the same (a remand) and the doctrinal arguments of each aren't mutually exclusive.

But I personally found myself nodding affirmatively a lot more when I was reading Justice Kruger's opinion than the reluctant "Yeah, okay, I get that, I guess" I was saying to myself when I was reading Justice Corrigan's opinion.

Which is not to say that the latter was wrong.

But I liked the former a lot more, and would definitely have signed on to the thing.

Thursday, August 25, 2022

People v. Ramirez (Cal. Supreme Ct. - Aug. 25, 2022)

There are a ton of wonderful things about being a law professor; far too many to list here. But one of the downsides is the obligation (sorta) to write 80-page law review articles that few people will ever read and that affect the world -- if at all -- only marginally. Sayeth me, anyway.

We see the judicial equivalent of this in today's opinion by Justice Corrigan: a 236-page (!) missive that few people will ever slog through and that affirms the imposition of a death penalty that'll never actually be applied anyway for murders that occurred a quarter century ago.

Someone's gotta do it, perhaps. But, personally, not the preferred way to devote a substantial portion of one's work life.

In re E.L. (Cal. Ct. App. - Aug. 23, 2022)

I understand and appreciate Justice Gilbert's desire to expedite things. He thinks that the four kids at issue should be adopted by Aida ASAP, and that means terminating the parental rights of their biological parents as quickly as possible. So he makes that happen, and does so by admitting on appeal evidence that's not in the record and that wasn't admitted below.

Now, in truth, I've definitely read termination cases with much, much worse facts than those here. And particularly with respect to the father, Justice Gilbert may have a substantially harsher reaction to the guy than I do. The entirety of what we learn about Father is this:

"In January 2015, Father began a two-year term in the Ventura County jail. His mother brought the children on visits every other week. Further incarceration ensued in state prisons in Wasco and Susanville beginning in January 2017. Father was released in August 2020. From January 2017 when Father went to state prison until his release, letters and phone calls were the only contact with his children. Since Father’s release in August 2020, he did not contact Aida R. to see his children. . . . 

Father testified that he is wiser and more mature than the man who went to prison. He earned his GED while in prison and received vocational training in facility maintenance and repair. He learned plumbing, tile, and fixture repair. He uses these skills in his current job as a handyman. While in prison he obtained certificates for attending classes in health education, alternatives to violence, “criminal thinking,” anger management, and substance abuse. He attended weekly meetings of Alcoholics Anonymous and Narcotics Anonymous. Father said he is in compliance with the conditions of parole, including monthly drug testing.

Father said he had not contacted Aida R. to see his children since he was released from prison in August 2020. He said he was advised by his attorney not to and was following that advice. He said he knew that he would have his day in court. Father said the last time he saw his children in person was in January 2017 before he went to prison in Wasco. 

Father said his goal was to have his children placed in his care as soon as possible. He did not have a timeline because he did not know the process. He believed it had been beneficial for the children to stay with Aida R. for the last five years, where they had been thriving."

Okay. I've one thousand percent read about worse fathers than this one. (Now, obviously, I know about better fathers as well.)

But here's Justice Gilbert's reaction to the guy, pretty much in toto:

"Father challenges the conclusion of the HSA report that the parents have no relationship with their children. Father points to biweekly visits with the children while he was in jail and correspondence with the children while he was in prison. Suffice it to say that biweekly visits to jail and correspondence with the children while he was in prison do not constitute the parent and child relationship the children need.

Father points out that our Supreme Court in Ann S. required the trial court to consider exigent circumstances. (Guardianship of Ann S., supra, 45 Cal.4th at p. 1132.) Father claims his incarceration constitutes an exigent circumstance. If so, it is a circumstance of Father’s own making. At one time, Father chose criminality over being a responsible parent. We are quite sure the trial court considered Father’s incarceration in deciding to order the termination of his parental rights. . . .

Father has by his own account made great progress in becoming a responsible member of society. This is commendable. But that progress does not make up for the more than five years he spent away from his children due to his own choices."

A bit harsh, no? It almost sounds like: "If you commit a crime, we're taking your kids away, period, since at that point 'biweekly visits to jail and correspondence with the children while [] in prison do not constitute the parent and child relationship the children need.'"

I mention all this even though, honestly, it's not my central reaction to the opinion; rather, it's merely something that a little bit stood out to me. I really wanted to write because I wonder if Justice Gilbert is right that admitting the evidence he isolates on appeal actually resolves the underlying problem.

This is another one of the plethora of cases where the trial judge messes up by not doing what ICWA and California law requires. The law says that at the first hearing, the trial judge has to ask the parents whether there's any reason to believe that the child is an Indian child. But the judge here clearly didn't do that. So, normally, we'd have to remand the case to make that happen.

But Justice Gilbert says there's no need to do that here, because we can admit some new evidence that's not in the record, and that'll speed things up. Which -- and this is true -- is both permissible doctrinally (at least in some circumstances) as well as -- and I agree with him here -- often in the best interest of the kids, because if their best interests are getting adopted, then we want to make that happen ASAP, and without an unnecessary remand.

So Justice Gilbert admits on appeal a form that Mother signed -- that's not in the record -- in which she checked the box that said that (1) she might be eligible for enrollment in a federally recognized Indian tribe, and filled in "Tonoho O'Odham" in the blank line thereafter, and (2) also the box that said that she may have Indian ancestry (leaving the line for "Name of tribe(s)" blank). Helpfully, Justice Gilbert also attaches that new evidence to the opinion, as well as the letters from the O'Odham Nation that says that the parents and kids aren't members of that tribe.

Justice Gilbert accordingly holds that there's no need for a remand, because this evidence conclusively establishes that there's no need for an inquiry into ancestry, since there's nothing there.

But hold on.

Doesn't it matter what the mother might say on remand? Sure, she filled out a form at one point that said that she thought that she had Indian ancestry, and might be eligible for enrollment in the O'Odham Nation. But the law says that we're supposed to ask her about this stuff, and then conduct a reasonable inquiry. What if, on remand, she were to say: "Yeah, I filled out the form, and my best guess at the time was that it was the O'Odham Nation. But I'm no expert on Indian tribes. Maybe it was Apache, or Pima, or something else. All I know is that my father always told me he was an Indian, he looked really dark, he said he was from the Four Corners area, and I remember going to a reservation a couple of times when I was a child." Nothing she said on the form is inconsistent with that; indeed, she left blank the part of the form that said which tribe(s) she might have ancestry from. And, yes, at some point in the trial court, she apparently said she didn't have Indian ancestry, but we know she said the exact opposite on the sworn form that Justice Gilbert admits on appeal, so doesn't that suggest that an inquiry might perhaps be appropriate? That maybe, just maybe, the kid does indeed have Indian ancestry?

Look, as a practical matter, you and I both know how this is going to turn out. The kid's not going to have any Indian ancestry, and even if the kid does, we're never going to find out about it. Just like in 99.9% of the other parental termination cases, this is going to be a useless, time-wasting formality that doesn't actually result in anything -- other than (potentially) delaying a valuable adoption that's in the best interests of the child.

But our law's really, really concerned about that other 0.1% of cases. Where, despite all of our best guesses and experience about what practically happens, it turns out the kid does have Indian ancestry, and we're taking the child away from a tribe. Which is why-- and there's a strong historical backdrop here -- we go through this process in every single case. To make sure.

I'm persuaded by Justice Gilbert's motivation. It's a sincere and utterly well-intentioned one. (Even if I'm personally perhaps less categorically harsh about incarcerated parents.) I too want to see these kids put into the best family possible ASAP.

I'm just not persuaded that the evidence that he admits on appeal conclusively establishes, full stop, that a remand for compliance with ICWA would definitively not result in anything different.

Wednesday, August 24, 2022

West Coast University v. Board of Registered Nursing (Cal. Ct. App. - Aug. 24, 2022)

I could definitely have seen this case coming out the other way, but I also think that Justice Mauro's (unanimous) opinion is entirely plausible.

It's just a statutory interpretation case. An accredited nursing school (West Coast University) increased its enrollment over a five-year period from 500 students to 850 students. California regulations state that “an approved nursing program shall not make a substantive change without prior board authorization" and that "[t]hese changes include: (1) Change in location. (2) Change in ownership. (3) Addition of a new campus or location. [or] (4) Significant change in the agreement between an approved nursing program that is not an institution of higher education and the institution of higher education with which it is affiliated.”

Does the nursing school have to get board authorization for its increase in enrollment?

Before I tell you the answer: If you were on the Court of Appeal, what would you decide?

It's a close case, in my view. The issue's not doctrinally complicated, and Justice Mauro rightly frames the issue. The list that follows the regulation isn't exclusive; these are just examples of  types of substantive changes. But when you've got a list, and that list entails a pattern, then things outside that pattern may not count. That canon helps us to interpret statutes. 

So, applying those principles of statutory interpretation, is the increase in enrollment a "substantive change" in the program?

The trial court said it was, and the Court of Appeal agrees. An increase in enrollment might result in various changes or effects, Justice Mauro says. So it's included, which means the Board can regulate it -- and that the school needs to get prior approval.

As I said at the outset, that's an eminently plausible result, though I think the issue's a close one, since the examples set forth in the regulation seem fairly far afield to me to things like increased enrollment. It also bears mention that the nursing program here increased enrollment a  mere 9% a year. That's not nothing, of course. But it's somewhat of a stretch to say that that's a "substantive change," particularly when you contrast it with the examples that are expressly set forth in the regulation.

But the part of Justice Mauro's opinion that resonates with me is when he says (essentially): "Hey, look, we're not saying that this change is something that should get the nursing school's approval revoked, and it might perhaps be that -- on the merits -- denying the school permission to increase enrollment would be an abuse of discretion. We're not deciding that issue one way or another. All we're saying is that an increase in enrollment at this level might be a substantive change. So you gotta submit it for approval. If the Board says yes, no problem; and if they say no, then you can sue if you think that's a crazy result. The question here is merely whether an increase in enrollment might count as a substantive change, and yeah, it might, so get it approved."

I might add, by the way, that my reaction to this case might have been starkly different had the Board adopted a more aggressive approach to enforcement than the one it did. When the Board heard about the increase in enrollment, it told the school: "Hey, you gotta get that stuff approved in advance, and you didn't, and we're only going to reapprove your school if you drop your enrollment back down to 500." At which point the school said: "Whoa, Nelly, that's a huge change; no way we can do that, and the regulations don't allow that anyway." Now, at this point, the Board could have said: "Fine, you're hereby disapproved. Disband the school." Because, yeah, the school didn't get preapproval, nor did it drop back down its enrollment.

And if the Board had done that, I gotta tell you, I'd be miffed. Because it would seem to me harsh and a (potentially) unjustified and untoward result. If all that increasing enrollment did was to make sure that our nation has more nurses, that seems to me a good thing, not a bad thing. And if the Board's only real argument is that increasing enrollment makes clinical opportunities harder to get, since there are more students, well, you know, that's just a necessary prerequisite to eventually having more nurses, so deal with it, okay?

But the Board didn't do that. Instead it said, basically, "okay, well, we disagree, so we're not going to approve your reapproval application, but we're not going to disapprove it either. We're just going to sit on it. So you're not disapproved, so can keep going. But we gotta sort this out eventually. So let's see who'll blink first -- or what the Court of Appeal will decide."

Should the aggressiveness of the Board matter on a pure issue of statutory interpretation? Not really. Does it, I suspect, somewhat color at least my own analysis of the issue. Yeah, I bet it does.

Anyway, close case. If West Coast University is a total crap of a school and really shouldn't have even 500 students, much less 850, then yeah, go ahead and disapprove the thing. (And, to be clear, I have no idea one way or another about the quality of the program at WCU.) But if it's a real school and really trains nurses, then the more the merrier, and deal with the problem of clinical opportunities in a different way. Because more nurses is not, IMHO, too much of a good thing. Those people rock.

Monday, August 22, 2022

In re J.R. (Cal. Ct. App. - Aug. 22, 2022)

The older I get, the more I tend to see the world in shades of gray, rather than black and white.

And, as a reminder, I'm quite old already.

Take the opinion this morning from the Court of Appeal, for example. It's a parental termination case, and the facts of those are almost invariably super depressing. So my initial reaction was to view the parent in this case -- the mother -- as not really the protagonist of the story. There are super little kids at issue in the case; as the first sentence of the opinion lays out, "A.B.’s (mother’s) two young sons, J.R. who is now nearly four years old and B.R. who is now nearly three, were removed from her custody as a oneand-a-half-year-old toddler (J.R.) and a six-month-old infant (B.R.)." Then, reading on, you get more details: "The two young boys were removed from the custody of both of their parents, who are married, by the Humboldt County Department of Health and Human Services (agency) in May 2020, after a string of child abuse and neglect referrals stemming from repeated bouts of domestic violence between the couple, concerns over parental substance abuse and, in mother’s case, mental health concerns. As noted, J.R. was then 19 months old and B.R. was 6 months old. They were placed into foster care together, later joined by a newborn sister who was detained in a separate case (not at issue here) after mother tested positive for drugs at her birth. The juvenile court sustained allegations that the two young boys were at substantial risk of both serious physical and emotional harm due to their exposure to ongoing domestic violence in the home, father’s methamphetamine abuse and mother’s self-reported depression that was contributing to her inability to protect them.

Yeah. You can see why the primary concern here is for the (continuously-increasing-in-number) children and not really the parents.

The kids get placed into foster care, with the goal (not surprisingly) of adoption. Which I suspect would not be especially hard to make happen for children of this age.

But to do that, of course, you've got to terminate the rights of the biological parent. Not surprisingly, the mother doesn't want that, hence the current appeal when the trial court so orders.

Despite the initial impressions one gets at the outset of the opinion, there's other stuff later on that makes things seem more in the world-is-often-gray universe. The mother, for example, now says she's in a residential drug rehabilitation program, which okay, maybe that's going to work, maybe it won't. But what really got me was the description, later on in the opinion, of the facts on which the Court of Appeal relies to uphold the trial court's decision to take away the children (even though the trial court allegedly applied the wrong legal standard). Here's the relevant portion:

"Those 21 pages of visitation records, which we have independently reviewed, reflect that in about half of the visits the children would “sometimes” eagerly interact with mother and in one visit were noted as having been consistently responsive to her direction. But apart from a single time when the little boys were noted to have held hands with mother (once, as she was walking them into the visitation room), there is no record of either child ever hugging or kissing mother, displaying affection in other ways or even laughing during those visits. On the contrary, the logs indicate that they didn’t do any of those things. The logs contain boxes with descriptive behaviors for the visitation monitor to check off as appropriate (as a supplement to the narrative descriptions), and at every single visit the visitation monitor left blank the boxes indicating that the children “showed affection during visit” or “laughed.” There also was no evidence of crying when visits ended (the “cried” box was left unchecked at every visit too). There is no evidence either child ever asked to go home with mother. The box indicating whether the parents were “comforting and supporting” was left unchecked in all but two of the ten visits. Indeed, there is a record of mother hugging her children only once, during one visit when the log notes that she “hugged [J.R.].”

Okay, I get it. I understand why those facts are relevant, and why the Court of Appeal recites them to uphold the wholesale termination of parental rights.

But I nonetheless couldn't help thinking that were someone to take a secret video of me interacting with my own children -- children who are, incidentally, incredibly loved an nourished (IMHO) -- I bet that the notes that someone would take about that video would look markedly similar to the notes here. Do I sometimes hug my children? Yeah, sure. But definitely not always, and assuredly less than one time in twelve. Do the children "hug or kiss" me or "display affection" in similar ways? Uh, sometimes. Yeah. Much less the older ones, obviously. But even the younger ones, not so much, honestly.

It's not like my family is "cold" or unloving; far from it, I believe. And, yes, my children are older than two and four years old. But even at a super young age, it was sort of shocking to me to see the physical demonstration of family affection be so commoditized (to use a term). It just struck me as a kind of check-the-box approach to love and relationships that, I don't know, felt sort of artificial and downright icky.

But, again, I get it. You're creating a record of something intangible; family love. Hard to quantify. Hard to set forth on a piece of paper. So we have these artificial constructs and constraints that are our ways of putting things into little boxes and the like. And there's your appellate (and even trial court) record; written check-the-box notes for how much crying and how much hugging and how many times a kid felt like reaching our and holding a hand.

And that determines whether we take away your child.

Like I said (repeatedly), I get it.

But it still seems sort of icky, no?

Friday, August 19, 2022

Reno v. Davis (9th Cir. - Aug. 19, 2022)

It's a death penalty case in the Ninth Circuit, so those are usually long, but worth reading. This one catches the eye at the outset because the caption lists the case as "Reno v. Davis" -- which isn't all that unusual, except that "Reno" is not just the habeas petitioner's last name, but his only name. As the first footnote explains, petitioner's name was formerly "Harold Ray Memro," but he had it legally changed to "Reno" in 1994. Okay. Reno it is.

The former Mr. Memro murdered three young boys -- including seven-year old Carl -- in sexual settings, and to the surprise of no one, gets sentenced to death. How long does it take the case to progress to this point in the habeas process? A long time, of course. A long time. Reno was convicted and sentenced to death in 1979. Unless my math is wrong, that's 43 years ago. And we're only now resolving Reno's first federal habeas petition.

I was thinking as I read the opinion how unmotivated I would be were I required to write the thing. Yes, he killed three little kids, so there's the "ick" factor, and for some, the desire to slam the guy and make sure that his habeas petition is "rapidly" denied. (The federal petition was filed in 1996, and the Ninth Circuit appeal was filed in 2017. But it only took the panel six months to write the 30-page opinion.)

At the same time, however, it's California, so the guy is not going to, in fact, be executed, regardless of what the Ninth Circuit does. Plus, at this point, he's 77 years old. He's dying in San Quentin one way or the other. Not that long from now. Hard to get super motivated, I think, to spend a ton of your own work life writing up what basically amounts to a hypothetical opinion about whether or not the guy should be executed.

But Judge Callahan does so, and the panel unanimously affirms the denial of his federal habeas petition. So another step completed in this 43-year old legal ship to nowhere.

Wednesday, August 17, 2022

CV Amalgamated LLC v. City of Chula Vista (Cal. Ct. App. - Aug. 15, 2022)

No one likes to lose. Not clients. Not lawyers.

It happens, of course. Fifty percent of the time, on average. That's the nature of the beast.

Still, it's no fun when it happens to you.

But sometimes, what happens thereafter is even worse. Like here.

The City of Chula Vista rejected the application of CV Amalgamated to open a licensed retail cannabis store, CV Amalgamated sued and lost, and CV Amalgamated then filed an appeal. Which it won.

At that point, the City of Chula Vista -- and its lawyers from Musick, Peeler & Garrett -- filed a petition for rehearing, arguing that the relief granted by the Court of Appeal would improperly result in having to rescore the various permit applications and hence involves indispensable parties; e.g., those who already got permits under the existing scoring scheme.

The Court of Appeal was not psyched for this additional argument. So it amended the published opinion to say the following two things. First, it added a couple of sentences that said: "The appellate record does not contain evidence about the current status of the City’s licensing of storefront cannabis businesses. However, documents in the appellate record show that subsequent to the City’s denial of CVA’s applications, all of the applicants for storefront retail licenses in Council District One that had been selected to participate in Phase Two either dropped out or were disqualified." In other words, it pointed out that, as far as the appellate record goes, no one got a permit, so the argument that rescoring would harm some absent parties wasn't true, as least as far as the existing record indicates.

And then the Court of Appeal added a footnote to this text that says:

"After we originally issued our opinion in this matter, in a belated attempt to present evidence showing the current status of its licensing efforts for storefront cannabis businesses, the City filed a request for judicial notice and a motion to take new evidence on appeal, along with a petition for rehearing. Although it made no attempt to present new evidence during the course of this appeal, the City now asks that we grant rehearing to consider evidence showing that the City has already issued storefront licenses to several cannabis retailers in several Council Districts. The City contends that the new evidence would support its argument that indispensable parties have not been joined in this action and would show that some of the relief sought by CVA will be ineffectual. The City cites Code of Civil Procedure section 909 and California Rule of Court, rule 8.252(b) and (c), which permit a litigant to bring a motion requesting that a reviewing court take new evidence in a non-jury case. As the City acknowledges, such a request will be granted, in the discretion of the reviewing court, only in exceptional circumstances. (Diaz v. Prof. Community Management, Inc. (2017) 16 Cal.App.5th 1190, 1213.) 

Whether or not the City’s request that we consider such evidence might have been meritorious if it was made during the briefing and argument of this appeal (an issue we do not reach), the request is inappropriate at this stage of the proceedings after we already issued our opinion. (Gentis v. Safeguard Business Systems, Inc. (1998) 60 Cal.App.4th 1294, 1308 [“It is well settled that arguments . . . cannot be raised for the first time in a petition for rehearing”]; Smith v. Crocker First Nat. Bank of San Francisco (1957) 152 Cal.App.2d 832, 837 [“Counsel are not permitted to argue their cases in a piecemeal fashion and points not previously argued will not be considered where raised for the first time on petition for rehearing.”].) Based on the City’s description of the relevant timeline, during the briefing and argument of this appeal there was ample time for the City to attempt to submit new evidence, for CVA to present any countervailing evidence, and for the parties to discuss the legal significance of that evidence. According to the City, the first license was issued more than a month before CVA’s November 1, 2021 opening appellate brief was filed; another license was issued before the City filed its respondent’s brief; and the remaining licenses were issued before oral argument. The City’s failure to identify the new evidence during the briefing and argument of this appeal is unexplained and inexcusable. It is also an abuse of the resources of this court for the City to ask us to reexamine this appeal and to consider additional legal issues based on newly submitted evidence that the City could have identified at an earlier stage. We accordingly deny the petition for rehearing, along with the City’s motion to take new evidence and the request for judicial notice. 

In light of the City’s representation that other storefront cannabis licenses have issued, we emphasize that the scope of relief sought by CVA in this appeal does not include a request for an order invalidating any storefront cannabis licenses that the City may have already issued to other parties. Our decision in favor of CVA in this appeal, accordingly, should not be construed as directing that the trial court must issue a writ invalidating any licenses issued to other parties."

You get why the Court of Appeal is miffed about the relevant timeline, and why they weren't told about the new permits until after the opinion issued, right? For that reason, I suspect, the Court of Appeal isn't shy about pretty much torching the City's attorneys and blaming 'em for the resulting mess.

Because, yeah, that's probably something you wanted to get before the judges before the opinion was issued, not after.

Friday, August 12, 2022

People v. Gregor (Cal. Ct. App. - Aug. 12, 2022)

This is all a bit harsh, I think, and surprisingly so.

Andrew Gregor is hanging out online in 2011 or so and having a fun, sexy conversation with someone young. You can already tell where this is going, right?

It's actually an internet sting operation, so Mr. Gregor gets busted for contacting a (fake) minor with the intent to commit a sexual offense. He pleads guilty, completes a sexual integrity program (I didn't know those existed), and gets sentenced to three years of informal probation. That (incredibly light) sentence is fairly indicative of how the judge probably viewed the equities of this particular situation.

Mr. Gregor is an American citizen, so he doesn't have to worry about being deported or anything like that. (He also appears to be a veteran, since a comment in the final footnote suggests that he's trying to get to veteran's court in a different proceeding. Irrelevant here, but perhaps that's part of the underlying equities.) Nonetheless, he wasn't always a citizen; he's originally from Australia, and is naturalized. When he signs his plea deal, he initials a box that says: "“If I am not a citizen of the United States, my plea could result in my being deported from, or excluded from admission to the United States, or denied citizenship." But, to reiterate, he's a citizen, so this doesn't apply to him.

Several years later, he applies to bring his non-citizen wife over to the United States. (It's unclear whether he was married during the whole internet sting thing, but he's definitely married now.) Because, well, he'd like to like in the same country as his spouse, please. But -- and this was the part I didn't know before today -- even if you're a citizen, if you're convicted of various offenses against a minor, while you can't be deported, you are barred from sponsoring anyone to come to the U.S.

Which might well make sense for sponsoring, say, a minor to come here. But I'm not exactly sure why we want to stop people from letting their spouses come here. Do we want the people to instead elect to marry someone who's already inside the U.S. who's not their true love? That's the way to stop future sex offenses? Or is our goal to make 'em go to a different country and live there? Countries that might well have less stringent sex offender statutes, or less supervision (e.g., no sex offender registration rules)?

Nonetheless, that's the law.

So Mr. Gregor files a motion to withdraw his plea, pursuant to a new California statute that says you're allowed to do so (under certain circumstances) if you didn't understand the immigration consequences of what you were doing. Which Mr. Gregor says -- quite credibly -- totally applies to him, because no one told him that, even as a citizen, he'd be prevented from sponsoring a spouse once he took the deal.

But the trial court denies relief, and the Court of Appeal affirms. The statute applies to non-citizens whose immigration consequences were potentially getting deported or not being able to come back to the United States, but not to citizens whose immigration consequences were not being able to sponsor a spouse. Sorry about that.

Justice Duarte appears somewhat sympathetic to Mr. Gregor's plight, and drops a footnote at the end of the opinion that says: "We recognize that defendant’s appeal is part of a broader effort to have his plea vacated, his criminal charges reinstated, and his case referred to and resolved in veteran’s court (see § 1170.9), based in large part on his quest to be released from the requirement that he submit to lifetime sex offender registration (see §§ 288.4, subd. (b); 290, subd. (d)(3)(C)(xii)). We observe that our opinion resolves only a narrow issue of statutory interpretation related to immigration and is not intended to opine on any other issue related to defendant’s plea or his status as a registered sex offender, including the questionable wisdom of imposing a lifetime registration requirement on an offender whose adjudication was resolved by his successful completion of probation pursuant to section 1203.4." But, still, no dice.

The opinion comes out of the Third Appellate District, and Shasta County in particular. So I assumed at the outset that Mr. Gregor was hiding out in rural Northern California while this whole thing plays out.

But since he's on a lifetime sex offender list, I was able to look the guy up. Nope. He's in San Diego. He just got busted up in Shasta, where the sting was (he apparently lived in Arizona at the time). Around 10 miles down the street from me. (Though that "street" is Interstate 8.)

P.S. - Oh, I literally forgot one final thing. Mr. Gregor also asks on appeal that the opinion only use his initials, since (not surprisingly) he doesn't exactly want the whole "attempted sex with a minor" thing hanging out in a potentially published opinion, particularly given his new spouse and all. Denied. The panel says he's a criminal defendant, so the usual rule is we use actual names. No dice there, either.