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

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

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

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

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

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

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

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

It's a federal habeas death penalty case.

The murder occurred in 1982 -- forty years ago.

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

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

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

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

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

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

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

Such is the law as it stands today.

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

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

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

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

The Court of Appeal affirms.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is one of those latter occasions, IMHO.

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

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

This is one of those occasions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Correct. 100%.

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

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

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

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

And, boy, are those details personal.

Check out just some of 'em:

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

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

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

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

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

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

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

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

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

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

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

Just sayin'.

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

You can see where all this comes from, no?

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

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

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

But, hey, to each their own.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yet.