Almond Alliance v. Fish & Game Commission (Cal. Ct. App. - May 31, 2022)

I think you'll like this one.

We all know about endangered species, right? We want to protect them. We don't want to make lots of animals extinct. That's a given.

You're probably generally familiar with the federal Endangered Species Act. That federal law allows the federal government to declare a species as endangered, which entitle that species to various protections. Which endangered species can the federal government protect? Basically, any of them. The federal law (smartly) says that the species that can potentially be listed are "any member of the animal kingdom, including, without limitation any . . . arthropod or other invertebrate."

The California Endangered Species has a similar focus, but is much less well-known. It operates the same way: California can declare certain species endangered, and then they obtain various protections.

But unlike the federal law, the potential coverage of the California statute is -- probably accidentally -- not essentially unlimited. It doesn't cover "any member of the animal kingdom" like the federal law. Rather, it lists the various categories. Super broadly, mind you. But there's nonetheless a list. The California statute says that the state is allowed to list as endangered any "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant."

Great.

So that brings us to the present dispute.

Can bumble bees be listed as endangered in California?

Let's go through the list. Bees aren't birds; those are different. Bees for sure aren't mammals. Bees certainly aren't fish. Bees are obviously not amphibians or reptiles. And bees definitely aren't plants.

So they can't be listed as endangered, right? Because there's a list, and bees don't fall under any of the items in the list.

That's what the trial court held.

Today, the Court of Appeals reverses.

You may be saying to yourself: "Well, the Court of Appeal probably just held that the list set forth various examples and was non-exclusive." Nope. That's not what it found.

Rather, the Court of Appeal said that bumble bees were on the list. That they were inside one of the groups on the list.

Which one do you think the Court of Appeal held encompassed bumble bees? As a reminder, here are your choices:

A. Birds.

B. Mammals.

C. Fish.

D. Amphibians.

E. Reptiles.

F. Plants.

Pick one. Which one do you think the Court of Appeal thought included bees?

Let's even make it more fun. Rank 'em in order. Which is the most likely to include bees, in your view, and which is the least likely, and which ones (in order) are in the middle?

With this hint: I'm going to spot you "Plants." Obviously bees aren't plants. So if you had to choose which one bees fall into, which one would you choose, and then rank the other ones from the most plausible to the absolutely least plausible. Got it?

Okay. Done yet?

Don't cheat. Okay, let's see where the Court of Appeal's ultimate holding comes out on your list.

The Court of Appeal held that bumble bees, under this list, are . . .

. 

.

.

.

Fish.

Where was that one on your list?

Now, mind you, there's a definition of "fish" in a different statutory section. And that definition says "'[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." And the "invertebrate and amphibian" part of that definition was added in 1969 fairly clearly because California wanted to be able to cover "starfish, sea urchins, sponges and worms," which might not technically be a "fish, mollusk, [or] crustacean," so we added those things.

But you'll notice the basic point here, right? All these things are in the water. Because, after all, we're defining the term "fish". 

So if you're asking me whether, for example, jellyfish are covered as "fish" under the statute, I'd have to say "Yes," even though they're technically not fish, since they're aquatic invertebrates, and invertebrates are now covered under the statute.

Justice Robie essentially uses the same argument to conclude that bees are fish as well. Because bees have exoskeletons. Which means they don't have a spinal column. Which means they're invertebrates. And since the definition of fish includes invertebrates . . . .

Bees are fish.

I've shortened and simplified the Court of Appeal's analysis, but that's essentially where and why the opinion comes out the way it does. There's a lot of discussion of legislative history and the like, as well as talk about the various amendments, but needless to say, there's not a lot of express discussion by the Legislature about whether bees are fish.

I've written at various points about the upsides and downsides of textualism, and how one (in my view) properly interprets statutes.

Add this one to the list of facially bizarre results.

So whatchathink? Convinced that bees are indeed fish?

(By the way, I'd have facially thought that -- if I had to choose -- "bird" would have been the closest one to bees. So I looked up the definition of "bird" in the relevant statute, which super helpfully defines  the word "bird" as "a wild bird or part of a wild bird." You get my sarcasm there, right? But apparently the common definition of bird, according to most sources, is a warm-blooded feathered vertebrate. Bees, by contrast, are invertebrates (as mentioned) and are also cold-blooded. So "bird" doesn't work. That's why "fish" gets the nod.)

Martin v. Pierce County (9th Cir. - May 27, 2022)

It goes without saying that COVID has changed a ton of things for the worse. Not the least of which being the million-plus individuals in the United States who have died as a result of the pandemic.

But there are also some much less important, albeit extant, upsides. The option of working remotely or at home, for example, has never been more salient.

Similar trends exist on the legal education front. For example, where I teach, all classes are now routinely videotaped and available to students online. So now, students who are sick -- or who are simply not able to make it to class -- aren't merely limited to getting notes from a fellow student. They can actually watch the lecture. As a bonus, when studying for exams, students can go back and rewatch a lecture on any topic on which they might have been confused. That's a huge upside. It helps a ton. (Or at least is if the underlying lectures are good ones.)

I mention all this because, after reading this opinion from the Ninth Circuit today, my overall reaction was:

The Ninth Circuit might want to boot up a lecture about Shady Grove from a first-year Civil Procedure class and give it a watch. Because, uh, there are some fairly big analytical holes here.

I was initially attracted to the opinion by the caption. Plaintiff's last name is "Martin" (no relation). And the plaintiff's lawyer's name is "Martin" (again, no relation). Finally, the syllabus of the opinion lists the topic of the opinion as "Federal Rules of Procedure." All of that's right up my alley.

The opinion is all about the Erie doctrine. Now, for some of you, that'll mean you'll stop reading pretty much immediately, lest one risk a recurrence of PTSD on this topic from first-year Civil Procedure. But fear not. I can make it easy. (Okay, maybe not "easy", but at least followable. I hope, anyway.)

Washington state court has a rule that says that when you file a medical malpractice lawsuit, you have to file a declaration alongside the complaint that says that plaintiff was presented with the option to file arbitration but declined to do so. Needless to say, the Federal Rules of Civil Procedure contain no such express requirement.

Does the federal court have to follow the state rule? 

That's a classic Erie question.

There are, as you might perhaps recall, a number of different Supreme Court opinions on the topic, the most famous of which are Swift v. Tyson (the old days) and Erie itself. Now, depending on how old you are, you may or may not have been taught the Supreme Court's most recent opinion on the subject -- its 2010 decision in Shady Grove.

Regardless, the basics of the Erie doctrine are well-established, and the opinion by Judge Selna here (sitting by designation from the Central District of California) recounts the first-level analytical process fairly accurately. First, you see if there's a Federal Rule of Civil Procedure that's broad enough to cover the issue; i.e., to answer the question. Here, Judge Selna concludes that both Rule 8 (the basic pleading rule) and Rule 3 (the commencement rule) are indeed broad enough to provide an answer -- that both of 'em require only the filing of a lawsuit, not a declaration. In this regard, I think he's right about Rule 8, but wrong about Rule 3 -- and I'm fairly surprised by the failure of the opinion to discuss (or even cite) Walker v. Armco, which is a Supreme Court Erie opinion precisely about Rule 3 on this score.

But whatever. Since he's right about Rule 8 (even if he's wrong about Rule 3), there's a federal rule that tells you what to do, so the "new" Erie test applies -- which says to apply the federal rule, and hence to ignore the state rule, so long as the federal rule is permissible under the Rules Enabling Act as well as the Constitution. So that's the prong where Judge Selna (correctly) ends up, albeit for arguably only half the right reasons.

That's where Shady Grove comes in. Judge Selna cites and relies upon Shady Grove throughout the opinion, and it's indeed the Supreme Court's last word on the relevant subject. But what today's Ninth Circuit opinion doesn't mention -- indeed, obscures -- is that Shady Grove doesn't contain a majority opinion; instead, it's a 4-1-4 decision, with only a plurality on the topside.

Which, obviously, makes deciphering the opinion (and ultimate holding) not as easy as some other cases.

So what caught my eye at the very outset was that today's Ninth Circuit opinion starts out by quoting Justice Stevens for the relevant test -- the "1" in the 4-1-4 opinion. Which, among other things, is a bit surprising since not a single other justice agrees with Justice Stevens that his is the right test. 

It's also surprising since, later in the opinion, Judge Selna cites Justice Scalia's opinion when holding that the federal rules survives the relevant test, saying:  "As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.)." The problem is that Justices Scalia and Stevens could not agree less on this point; indeed, that's the whole point of the competing opinions -- Justice Scalia says (at length) that Justice Steven's test is not the right one, and Justice Stevens says the same about Justice Scalia's. So Judge Selna is mixing and matching two things that, fairly self-evidently, do not mix and match.

Wholly apart from the fact that neither of these opinions commands a majority of the Court. If only because the four dissenters express no opinion about either of these competing tests (since they think there's no conflict and hence you don't have to reach that point).

Not to get too deep into Erie, but the fight between Justices Scalia and Stevens is whether federal rules that are "procedural" can nonetheless be invalid under the Rules Enabling Act as ones that abridge or modify state substantive rights. Justice Stevens think they can be -- hence his (more restrictive) test. Justice Scalia thinks they can't be -- hence his contrary test.

Judge Selna cites Justice Steven's test as the relevant one, but then holds that the rules here are valid under Justice Scalia's less rigorous test. You can't do that. Wholly apart, mind you, from the fact that neither of these tests in Shady Grove commands a majority of the Court.

Plus, even if Justice Scalia's test was the correct one, today's opinion doesn't actually even apply it under its own terms. Part A of Judge Selna's opinion says that Rules 3 and 8 cover the matter. Great. So now we're in the second part of the test -- are those rules valid. Judge Selna concludes they are. But he does so simply by saying that no federal rule of civil procedure has ever been struck down as invalid, and hence -- since there's a valid rule -- you don't have to get any deeper.

Which is literally assuming away the entire second part of the test.

Yes, it's true, no federal rule has ever been struck down as invalid under Erie. But that doesn't mean they couldn't be, or that there's no test, or that the rule here is satisfied. You actually have to apply the test. Yes, we've got a keen sense, based on history, that the relevant test will likely be satisfied, since at least in the Supreme Court, that's always been the way the cases have ended up. But that's not the test. The test is not "since no rule has ever been declared invalid before, the present rule is valid." There's literally no one on the Supreme Court who's ever said that's the rule; indeed, that's why there's an active fight about what the actual rule is -- a rule that, yeah, has historically always been satisfied, but that's the rule regardless.

So that's a gaping hole in the opinion.

(If you think I might perhaps be mischaracterizing or less charitable about what today's Ninth Circuit opinion says, here's the entirety of Section B of the opinion, alongside the last sentence of Section A for context:) 

"As RCW 7.70A.020 answers the “same question” as Rule 3, they directly conflict. 

B. Rules 3 and 8 are Valid and Displace Washington’s Declaration Requirement 

In conclusion, RCW 7.70A.020 is inconsistent with Rules 3 and 8 of the Federal Rules of Civil Procedure. Rules 3 and 8(a) are both within Congress’s constitutional rulemaking power and the statutory authorization provided by the Rules Enabling Act. Shady Grove, 559 U.S. at 398–99; see Gallivan, 943 F.3d at 294 (“The Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.”) (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336 (D.C. Cir. 2015)). Like the other courts to consider this issue, “we have no reason to doubt the validity of the Federal Rules at issue here.” Id.; see also Pledger, 5 F.4th at 521 (same); Albright, 24 F.4th at 1048 (same). 

Thus, Washington’s arbitration declaration requirement is displaced by those rules in federal court. As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.). We hold that Washington’s arbitration declaration requirement does not apply in the federal courts. The district court should have applied the Federal Rules, not RCW 7.70A.020 in this case."

You see why that's not enough, right?

To be clear, in the end, I think that the result that Judge Selna reaches is the correct one. Under Justice Scalia's test, Rule 8 is arguably a procedural one, so it's valid, and displaces the state rule. And even if you apply Justice Steven's more restrictive test, Rule 8 isn't one of those rare instances of rules that are procedural and yet invade an area bound up in a state's substantive right, because while I can see a non-frivolous claim to the contrary, I don't think the state arbitration-declaration provision here really is so bound up in the substantive malpractice remedy. So regardless of which test you apply, the federal rule here (Rule 8, not Rule 3, but whatever) applies, and federal courts ignore the contrary state rule.

But you gotta get there in a different way than today's opinion does.

Or at least that's most definitely what I'd want my first year law students to do on any exam I gave 'em with this "hypothetical."

Put another way, if this was their draft answer on a practice exam, I'd tell 'em to go back and rewatch our class lecture on Shady Grove and give it another shot.

Allen v. Kijakazi (9th Cir. - May 24, 2022)

Want to see the problem with textualism? Here you go.

The case comes out the way most people would expect. Plaintiff says he's entitled to Social Security disability benefits. But he was convicted of rape, imprisoned, and then when he was about to get out, was detained as a sexually violent predator and held in a state hospital. So this whole time, he's been in state facilities at the state's expense. So the SSA thinks -- entirely understandably -- that he's not entitled to disability benefits.

And that's, indeed, what the Ninth Circuit holds. No benefits.

Now, getting committed as a sexually violent predator is a two-step process. First, the state files a petition to commit you, and ultimately, there's a trial. Both of those happened here, and, in the end, Mr. Allen was indeed found to be a SVP.

But Mr. Allen says that he's entitled to disability benefits from the date he was "released" from prison to the date he lost the trial and was ultimately committed as an SVP -- in other words, during the interim period during which he'd been charged as an SVP but not yet held to be one. The SSA responds that during this whole period, however, Mr. Allen was being held in a state facility, so he's not entitled to benefits.

Which makes total sense.

The only problem being: That's not what the statute says.

The Social Security statute, in relevant part, says that no benefits shall be paid to people confined and maintained at public expense who “immediately upon completion of confinement” for a criminal sexual offense “is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.” 42 U.S.C. § 402(x)(1)(A)(iii). So if, like Mr. Allen, you're in prison for rape and then "immediately upon completion" of that sentenced, you're confined in a hospital "pursuant to a finding" that you're indeed an SVP, then you get no benefits.

So, sure, after Mr. Allen lost at trial, and was declared an SVP, he's not entitled to benefits. But what about before the trial? When he was temporarily detained based upon an allegation that he was an SVP? What about benefits then?

On that front, Mr. Allen has a super good argument. Because there wasn't a "finding" that he was an SVP at that point. There was just a petition.

The most natural, straightforward reading of the statute is that the exception doesn't apply, because the filing of a petition isn't a finding that the individual is an SVP. Which is, after all, why we have a trial; because, sometimes, people are sought to be committed as SVPs who are not, in fact, SVPs.

Now, if you're a structuralist, or care about the purposes of the statute, this isn't necessarily dispositive. Because, obviously, the whole point of the exception is to not give benefits to people who are currently in a state-run and state-maintained facility that already provides 100% of the individual's care. So if you look to things like the goals of the statute and legislative intent, it's fairly easy to come to a conclusion that, no, Mr. Allen is not entitled to benefits.

But textualists assert that it's the text of the statute that matters. Just call balls and strikes. Just follow the words.

But the words here mean that Mr. Allen gets benefits during that interim period.

But, obviously, textualists aren't happy with that result.

So they find a way around it. Like here.

The Ninth Circuit holds that the text of the exception applies to Mr. Allen because the trial court found that there was probable cause to hold him as an SVP during that interim period. Hence, according to Judge Ikuta, there was a judicial "finding" and thus the exception applies.

Which is fine, except for the tiny little problem that a finding that there's probable cause to believe that someone's an SVP is not a finding that the person is, in fact, an SVP. Which is what the actual text of the statute requires.

There's probable cause to believe lots of things that aren't, in fact, true. That's, again, why we have a trial. The statute says that there has to be a "finding that the individual is a sexually dangerous person," not that he "might be" or "potentially is" such a person.

Those words matter. If only because there's a big, big difference between being accused of something and actually having done it on the other.

Imagine, for example, a statute that says that you don't get benefits if someone "is guilty of theft." Take a person who's charged with theft but not yet convicted. Surely the fact that they've been charged does not mean they're ineligible for benefits, right? Even if there's a probable cause finding. Ditto for anyone who's been sued civilly for theft -- even if the case has gotten past the pleading stage or even past summary judgment. That it's reached that point, even if there's a "finding" that liability is possible, does not mean that the person has actually done it, or -- in the present case -- is an actual predator. Likely or possible does not mean actually is.

So if a statute takes away benefits only if there's a finding that a person actually is a predator, then the fact that (as with Mr. Allen) there's a finding that he might be a predator doesn't satisfy the statute. So he gets benefits.

But no one likes that result. So we says that "is" means something different. That a probable cause finding means that he "is" a predator. 

Even though that's totally not true.

The value -- the promise -- of textualism is that it purportedly gives words meaning and doesn't allow unelected judges to incorporate their own values or policy beliefs into statutes. And if you're a truly and honestly committed textualist, and really do just seek to call balls and strikes based upon the meaning of the actual words used, then, yeah, those values do indeed get advanced. (There are other downsides that accompany those upsides, but at least you get the upsides.)

But that's not how, in my experience, textualism generally works in practice. Instead, you have opinions like this one, that define and interpret words not in the manner they actually mean, but instead with the objective of obtaining a certain desired result.

Which is fine. Except that you're doing it while pretending that you're doing the exact opposite. Which, in my view, is not an acceptable way to do these things. At a minimum, we should be honest about what we're doing. And pretending that we're just following the common meaning of words -- and slamming others for incorporating their own policy preferences -- when the reality is otherwise just seems flatly wrong.

It'd have been one thing if Judge Ikuta had said "You know, it's a stupid result, and I'm confident it's not what Congress actually intended, but 'is' means 'is', and those are the words that Congress used, so Mr. Allen gets his benefits, and if Congress wants to change the statute, go right ahead." That'd be one way to go, and I'd be fine with that. I'd also be fine with an opinion that said "Yeah, I can see the argument that 'is' means is, but I think it's pretty darn clear from the purposes of the statute that that's not what Congress wanted, so Mr. Allen gets no benefits." Cool with me as well.

But coming up with a theory of probable cause that treats "is" as meaning something other than what it actually means just seems profoundly problematic.

And you'd think that, given history, conservatives might be particularly worried about manipulating the definition of the word "is" -- particularly in the context of sexual predators. No?

CFPB v. CashCall (9th Cir. - May 23, 2022)

CashCall wants to make loans with interest rates of between 89 and 169 percent. The problem is those pesky state usury laws. So it contracts with a front company set up by a member of an Indian Tribe to make the loans. CashCall buys 100% of the loans and none of the borrowers on on the reservation, but CashCall says that this structure exempts it from state usury laws.

CashCall's own expert, by the way, tells CashCall that "lower courts will shun our model and . . . if we reach the Supreme Court, . . . we will lose." But CashCall feels like making a profit, so goes with the strategy. And, indeed, it's a financial success, and CashCall obtains over a quarter billion dollars in fees and interest from the program.

Ultimately, however, the Consumer Financial Protection Board sues them, and obtains a civil penalty of a little over $10 million. Both sides appeal; the CFPB wants a higher penalty plus a chance at restitution of at least part of the quarter billion dollars, and CashCall wants out of the $10 million penalty.

The CFPB wins in the Ninth Circuit. The penalty gets increased and the case remanded back to the district court to reconsider whether to order restitution.

Personally, I couldn't be happier with the result. Yeah, yeah, I know that all those free market types love usurious loans. But that ain't me. Sorry about that.

I wondered who CashCall hired as their attorney on the case (and who'd take it), so checked out the caption and immediately recognized the first name listed for CashCall -- Reuben Cahn. Full disclosure: I knew Reuben briefly when I was on the Board of Directors of the Federal Defenders down here in San Diego and he was the Executive Director. Incredibly smart -- and stunningly nice -- guy.

But from running a program designed to protect the constitutional rights of indigent criminal defendants to advocating on behalf of a company that's using an Indian front company to make usurious loans to indigent and working-class individuals -- well, at a minimum, that's quite a pivot, no?

(And it's not that I don't understand the libertarian argument that the two are consistent; I just find it entirely unpersuasive.)

Los Angeles Police Protective League v. City of Los Angeles (Cal. Ct. App. - May 19, 2022)

It stuns me that there's not a state law version of abstention designed to solve problems like this one.

There's a state statute that says that a city has to do X. That statute allegedly violates the First Amendment and gets challenged in state court. Ultimately, the California Supreme Court upholds the statute.

But that same statute then gets challenged in federal court, again alleging that the statute violates the First Amendment. The federal court agrees, as does the Ninth Circuit. So the statute's unconstitutional.

Since the statute's unconstitutional, the City stops enforcing the statute. At which point plaintiff brings a state court lawsuit to compel the City to enforce the statute, saying that the federal court was wrong and that the statute doesn't violate the First Amendment.

At which point the City says: "Uh, dude, the federal courts have already decided that it does violate the First Amendment. And, the last time I checked, (1) there's this thing called the Supremacy Clause, which makes federal law trump state law, and (2) federal courts get to determine the scope of federal law, which includes the Constitution.

But the plaintiff responds: "Says you. But here's what I know: Lower state courts are bound to follow holdings of higher state courts. So if, as here, higher state courts (e.g., the California Supreme Court) have decided that the statute's constitutional, then the lower state court can't disagree. Regardless of what a federal court has held. (Unless, of course, the U.S. Supreme Court has decided something, which isn't the case here.)"

To which the City says: "I get it. But it's got to be the law that we're required to follow the decision of the Ninth Circuit, right? Because if we don't, you know full well what's going to happen; we'll ignore that decision, someone will sue us in federal court, and they'll automatically win because both the district court and that Ninth Circuit will be bound to follow precedent. So we get sued, lose, pay fees (theirs and ours), and we're back to square one."

At which point plaintiff ends the debate by saying: "All true. Sucks to be you."

And the Court of Appeal agrees.

Now, I've simplified and fictionalized the debate, but everything I've said above is true. The net effect of this opinion is basically to waste everybody's time and to put the City of Los Angeles into bind that's indisputably not of their making.

The Court of Appeal is correct that the problem would be solved if (1) the California Supreme Court granted review of the current case, and (2) overruled its prior decision. But the confluence of both (1) and (2) are most assuredly not certain. So that's hardly a solution.

Plus, again, there's no real point to this charade. The end result is going to be a federal court lawsuit that strikes down the statute (yet again). Why waste everyone's time?

It seems to me that the best solution would be to create an abstention-like doctrine similar to those we have in federal court. I'd limit it to situations like this one in which the federal appellate court for the relevant geographic area (here, California) has finally and conclusively held a statute to violate federal law, including but not limited to the Constitution. Given that decision, the state court should abstain from deciding otherwise, given the practical realities (and downsides) that would inevitably result from following the contrary prior state court ruling. The losing party could then, of course, appeal, and get the case to the California Supreme Court and (eventually) the United States Supreme Court, and if the latter wanted to change the law and reverse the Ninth Circuit, great, problem solved.

But unless and until that happened, you wouldn't go through the futile and wasteful act of ordering the City to comply with a statute that's already been declared unconstitutional and that the federal court will assuredly continue to hold can't be enforced.

Doesn't that sound like the right way to proceed?

So the California Supreme Court should grant review in this one and either (1) invent the doctrine I've just described above (which, again, I can't believe doesn't already exist), or (2) reverse the decision on the merits (e.g., agree with the Ninth Circuit) and be done with it.

I actually prefer (1), since it avoids similar problems in the future.

Regardless, we shouldn't force litigants into positions like the one the City of Los Angeles faces here.

Especially when, as here, it's 100% not their fault.

Cardenas v. Horizon Senior Living Center (Cal. Ct. App. - May 19, 2022)

It doesn't really matter that much for this case, but this isn't an awesome sign. It's somewhat the judicial equivalent of seeing two spouses at a party have a tiny little over something trivial. Sure, maybe they're just having a bad day. But you're sort of worried that maybe they'll eventually get divorced.

Justice Gilbert writes the opinion. He's been on the Court of Appeal for a long time -- 40 years (!) come December. He thinks the case should come out a certain way, and doesn't feel like it requires saying much to get there. His opinion is roughly five pages long -- and, remember, those pages aren't single-spaced. So it's an extremely brief opinion.

Justice Tangeman has been on the Court of Appeal for a lot less time; around a half-dozen years. He's the "new guy" in Division Six -- the other three have been there for 20, 30 and 40 years, respectively. Justice Tangeman agrees on the result, as well as the reasoning; no dispute there. But Justice Tangeman thinks it worth pointing out that the other states agree with the result reached in today's opinion. So he prepares three very short paragraphs saying so.

Now, obviously, I wasn't part of the internal decisionmaking process, but I suspect that Justice Tangeman read Justice Gilbert's draft opinion and said something like: "Hey, that's awesome, I love it. How about putting in two or three paragraphs to note that the other states come out our same way?" At which point Justice Gilbert responded with something like: "Yeah, don't feel like it." Justice Tangeman says (or at least thinks): "Hey, it's only a couple paragraphs, and it's not like your five-page opinion is overly long or anything as is. How can it hurt? Can't you just put 'em in?" At which point Justice Gilbert responds "Nope. Write 'em yourself if you feel like it."

Thus leading to today's opinion.

Justice Tangeman authors a brief concurrence that reads, in its entirety: "I concur. Because plaintiffs rely heavily on out-of-state authorities in discussing this issue of first impression in California, I believe a brief discussion of those authorities is warranted. The out-of-state authorities cited by plaintiffs hold that the statute of limitations for respondeat superior liability is the same as for the individual tortfeasor. But with the exception of D.M.S. v. Barber (Minn. 2002) 645 N.W.2d 383, the extended statutes of limitations apply where they refer to particular types of actions rather than particular types of defendants. See Kocsis v. Harrison (Neb. 1996) 543 N.W.2d 164; Lourim v. Swensen (Or. 1999) 977 P.2d 1157; Dunn v. Rockwell (W.Va. 2009) 689 S.E.2d 255. This distinction warrants the conclusion that Code of Civil Procedure section 340.3 applies only to defendants convicted of a felony and not to their employers.

The court in Doe v. BSA Corp. (Conn. 2016) 147 A.3d 104 reaches the same conclusion. In applying an extended statute of limitations for sexual abuse claims to the employing organization, the court drew a distinction between statutes “not concerned with particular types of defendants, but with providing recovery for a particular type of injury.” (Id. at p. 122.) The court noted that “almost all of the courts that have concluded that an extended statute of limitations for claims involving childhood sexual abuse does not apply to claims against nonperpetrators have been confronted with statutes that expressly limit their application to claims against perpetrators. [Citations.]” (Id. at p. 123, fn. 21.) 

Because “section 340.3 was enacted as part of a statutory scheme to implement Proposition 8’s constitutional requirement that “‘“persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer”’” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 973) and expressly limits its reach to convicted defendants, I concur in the result."

And, in turn, Justice Gilbert ends his own opinion by saying: "The concurring opinion need not be concerned with out-ofstate authority. California authority is more than sufficient to resolve the issue presented. We are pleased, however, that the out-of-state authorities cited by our colleague would agree with our result." 

With Justice Yegan joining Justice Gilbert's response to the young whippersnapper.

Nothing of substantive import, of course. But when even these sort of minor disagreements can't be worked out -- just like couples who snipe at each other in public -- you can't help but wonder what else may be going on out of public view.

Because, typically, these things get worked out in a different way.

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

Judge Smith describes the plaintiff in this litigation as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Wow. That sounds even worse.

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

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

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

Look for an en banc call shortly.

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

Sometimes law is baffling.

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

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

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

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

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

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

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

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

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

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

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

'Cause that's the way the system works.

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

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

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

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

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

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

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

I've got zero problem with that part.

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

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

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

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

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

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

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

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

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

Notwithstanding a case from 1895 that went the other way.

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

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

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

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

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

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

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

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

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

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

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

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

Even though it wasn't.

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

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

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

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

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