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

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

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

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

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

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

Zero chance defendant prevails. Zero.

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

Exceedingly possible as well, eh?

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

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

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

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

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

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

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

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

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

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

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

The Ninth Circuit is miffed.

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

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

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

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

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

I think you see a bit of that here.

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

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

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

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

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

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

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

But then the opinion gets crazy educational.

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

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

I'll share with you this knowledge:

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

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

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

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

Wow. That's . . . a lot.

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

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

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

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

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

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

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

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

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

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

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

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

The guy's name is Juan Pantoja.

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

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

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

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

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

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

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

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

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

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

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

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

Some lessons you can learn from this opinion:

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

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

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

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

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

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

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

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

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

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

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

Learn from the hard-learned lessons of others.

Here's seven good ones for the day.

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

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

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

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

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

Yep. You're right.

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

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

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

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

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

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

That's ending on a low note, IMHO.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Or at least was, until he was disbarred.