California Bus. & Indust. Alliance v. Becerra (Cal. Ct. App. - June 30, 2022)

Sometimes the best stuff is in the footnotes. Like in this opinion today by Justice Sanchez:

"We cannot help but note the irony inherent in the procedural posture of this lawsuit. Plaintiff, a private actor, insists that the Legislature has deprived the executive branch, including specifically the Attorney General, of the ability to exercise one of its core constitutional functions, by devolving those functions to private actors. To effectuate its argument, plaintiff sued the Attorney General, who, for his part, has argued vigorously that his powers are not being usurped. While we do not see the Attorney General’s present position as dispositive of the issue, we note at least one court has relied, at least in part, on the Attorney General taking a similar position to resolve a similar separation of powers issue. (National Paint & Coatings Assn. v. State of California (1997) 58 Cal.App.4th 753, 764.)"

P.S. - When I first typed the caption of this case, I automatically typed the respondent as "Bonta" since he's California's Attorney General and it's the CAG who's being sued. I caught myself at the end and replaced it with Becerra since he's the nominal respondent in the caption. It's funny that even after all these years of reading daily appellate opinions, I hadn't noticed (until now) that California doesn't follow the substitution practice of federal courts, which automatically replace any old officeholder with the new one. Of course, it doesn't really matter either way -- the ultimate nature of the lawsuit is the same -- but it's interesting that the type systems apparently diverge on this point. (And that I hadn't noticed.)

In re Dezi C. (Cal. Ct. App. - June 29, 2022)

It's always nerve-racking whenever you publish stuff because, inevitably, there will be small (or large) errors that display your ignorance. No one's perfect. Whether it's spelling, grammar, carelessness, etc. Everyone's going to make mistakes. For everyone to see.

Moreover, in the Court of Appeal, since any amendments to a published opinion involve a separate publication, any mistakes are highlighted by the error-correction process. So even someone missed the error the first time, the second time, they get a whole separate document with a laser focus on what was wrong the first time.

This came to mind when Justice Hoffstadt amended this opinion to change two instances of the use of the word "fulsome" in the opinion to "comprehensive". That's something that you see sometimes. Justices on occasion use words that don't necessarily mean what they think they mean.

But here, honestly, I think that Justice Hoffstadt's original use of the word "fulsome" was entirely fine. It's an ICWA case in which the Court of Appeal remands "for the agency to conduct a more fulsome inquiry on this topic." I get the reason for the amendment; the principal definition of "fulsome" is "complimentary or flattering to an excessive degree," and that's definitely not what Justice Hoffstadt means.

But the second definition of "fulsome" -- indeed, the first definition according to a number of sources -- is "characterized by abundance" or "generous in amount or extent." Which is exactly what Justice Hoffstadt means. (That's also typically how I use the term, on those extraordinarily rare occasions on which I do so.)

So I'm just fine, of course, with "comprehensive," which captures Justice Hoffstadt's meaning perfectly and without using a ten-cent word.

But "fulsome" was just fine for me as well. Both when I first read the opinion -- and I vaguely recall remarking to myself on that word choice then -- as well as now.

That's my fulsome assessment for today, anyway.

People v. Pineda (Cal. Supreme Ct. - June 27, 2022)

I know that we're going to (theoretically) execute the defendant, which provides some measure of (theoretical) justice. But are we really so incompetent that we couldn't have stopped the second of these murders?

"The prosecution’s theory of the case was that defendant, accompanied by Tinajero, killed Sanchez in the early morning hours of March 7, 2002, by running him over with a car. Defendant was charged with Sanchez’s murder. Tinajero then testified at defendant’s trial, pursuant to a grant of immunity from prosecution. That trial resulted in a mistrial after defendant’s attorney fell ill. Defendant and Tinajero were both housed at the Men’s Central Jail in Los Angeles as defendant awaited retrial. On April 20, 2004, defendant — who was supposed to be kept away from Tinajero — gained access to Tinajero’s cell and choked him to death."

Not exactly a stunning advertisement for what it's like to be an informant for the Los Angeles Police Department, eh?

County of Sonoma v. PERB (Cal. Ct. App. - June 23, 2022)

I'm not going to pretend that I fully understand the countervailing considerations in cases like this one. I know (or at least suspect) there are weighty arguments on all sides. But I'm somewhat leaning to one side rather than the other, and wonder if -- reading today's opinion -- precedent doesn't go slightly opposite to the position that I'd intuitively take.

It's basically a union case, but more broadly, a municipality/democracy issue. In tension are two concepts as to which I'm fully and completely on board: (1) that a union (or an individual employee, for that matter) has a right to enter into a contract with an employer and, once entered, that voluntary contract is to be respected by everyone, and (2) that the people (e.g., voters) have a right to enact initiatives and referenda that govern their democracy, and that no one (not even a legislative body) can interfere with that right.

Normally, those two salutary principles aren't in conflict. But what about when they do?

For example, take today's opinion. The people of Sonoma County decided that the oversight of police officers in that county was inadequate, so they passed an initiative that increased the powers of the police review board to investigate officers, review body-worn camera footage, etc. A fairly basic exercise of fundamental democratic principles.

But prior to the passage of that initiative, in an agreement with the union that's both typical as well as protected by labor laws, the County had promised to bargain with the union before doing anything that might affect the terms and conditions of employment for the officers. Fairly clearly, the matters raised by the initiative affects the terms and conditions of employment for the officers.

So which of these two principles gives way to the other?

Is the obligation to bargain supreme, which would mean that the County had to bargain first before it was allowed to put the initiative on the ballot? Or does the right to enact an initiative approved by the voters trump the obligation of the County to bargain?

The trial court thought the former, and on that basis, invalidated the results of the election. It held that because the County didn't bargain first (which it indeed didn't), the measure was invalid, even though it had been approved by the voters.

The Court of Appeal agreed in part, but tried to thread a needle and come to a conclusion that was sort of in the middle of where the parties stood. Today's opinion held that, yep, the County had a duty to bargain, which it violated, but that this didn't necessarily mean that the election was invalid. It instead "remand[s] the matter for PERB to determine whether to declare void the Board’s resolution placing on the ballot the Measure P provisions subject to effects bargaining, or to impose any other remedy such as ordering the County to cease and desist from implementing the Measure P amendments on Association-represented employees until the County fulfills its effects bargaining obligation" -- and also notes that the election might be potentially invalidated in a separate quo warranto proceeding.

So maybe the union wins, maybe it doesn't. And maybe the initiative gets enforced, and maybe not.

But let me ask the more foundational question: Does it really make sense to allow the County to bar (in sum or substance) certain subjects from an initiative?

In one sense, of course it can: We do that all the time. They're called contracts. Municipalities can enter contracts that are binding on everyone, including from abrogation via initiative. For example, if the County enters into a contract with me to employ me for a year at $25/hour, that's the contract even if an initiative subsequently passes that bars the County from paying me for more than six months and/or over $20/hour. Too bad, so sad. Contract rules.

And, the argument goes, what's good for individuals is equally true for groups of individuals; e.g., unions. So, here, if the County wants to agree with the union (as it surely did) that it'll bargain with 'em before changing any terms of employment, then that's what it's gotta do -- and can't get around that (or change those terms) through an initiative. The contract, again, rules.

But that's in tension, I think, with the overall initiative process. Imagine, for example, that the voters believe -- perhaps for darn good reason -- that their elected officials (including the County) are far too soft on police officers, perhaps precisely because the police union is particularly powerful. The County (and union, for that matter) might well perceive this reality and act proactively, and one may they might attempt to ensure that the voters didn't get their way was to enter into precisely the type of contract at issue here -- one that requires the County to negotiate before any changes. So if the County doesn't do what the contract requires (e.g., bargain ) -- and the County might have zero desire to do so -- then the voters can't change things. Contract rules, right?

Or imagine an even stronger contract that says "Here are the conditions for employment, which will last for 50 years and cannot be altered except by the mutual consent of the County and the union." Does this contract really permissibly stop the voters from, for example, putting body camera footage on the web (as in the present case), or doing anything else that would enhance oversight of the police? Wouldn't that be a legislative restriction on the initiative process that's invalid? And if so, doesn't that precise problem exist here? Why can the County's failure to bargain stop, in any way, the voter's ability to enact an initiative?

Except, of course, for the fact that they're both the "people". The "people" that entered into the binding (?) contract at issue.

I imagine that the way precedent plays out -- and, again, I'm no expert in this area, but I know what I've read (or at least vaguely recall it) -- is that a "duty to bargain" wouldn't entirely preclude an initiative since those could be enacted entirely by the voters themselves, whereas the one here was (at least in part) proposed by the County itself. But to some extent, that's somewhat a distinction without (much of) a difference, right? It still begs the question: "Well, what are the legitimate constraints on initiatives set forth by contracts?" If contracts can't bar initiatives, then presumably, at least, they can't bar initiatives at all, including those that start with the County or in which the County admitted has some degree of involvement. Whereas if initiatives can't violate contracts, then it doesn't matter whether the County's involved or not, right? And I strongly doubt that the correct rule is that initiatives can violate contracts when they're voter-initiated, but not when they're County-initiated. That'd be sort of silly, right? Either one of the two principles -- democracy versus contract -- should hold sway in both cases, I'd guess.

Today's opinion doesn't really grapple, at all, with this underlying issue. An issue that I think's a fairly important one. Implicitly, at least, it takes sides with the "contract" position, since it holds that the trial court (on remand) has the power to potentially enjoin the voter-approved initiative.

That's a policy choice, for sure. I just wonder if it's the right one, and whether -- or to what degree -- contract rights can really overcome foundational democratic principles.

Tough issue. Tough calls.

In re Marriage of Deal (Cal. Ct. App. - June 21, 2022)

The Court of Appeal correctly views this appeal as frivolous and dismisses it. Totally correct.

But Part I of the opinion seems affirmatively pernicious (and wrong) to me.

Thomas Deal has been (rightly) declared a vexatious litigant and hence can't harass his ex-wife with a legion of lawsuits against her that he files pro per. Great. Couldn't be happier. After entry of the vexatious litigant order, Mr. Deal's got to get permission of the presiding judge to file more lawsuits. Mr. Deal asks to file a variety of new lawsuits, and -- totally predictably -- the presiding judge looks at them and says "No way. Denied." At which point Mr. Deal appeals.

In Part II of the opinion, the Court of Appeal says that Mr. Deal's appeal is totally frivolous, which, yep, it is. So we can -- and do -- dismiss the appeal without even an appearance by the respondent (Mr. Deal's ex-wife). Wonderful. She's been burdened enough. Awesome.

But in Part I of the opinion, the Court of Appeal holds that it's required to dismiss the appeal because it's from a non-appealable order.

Wait. What?

The Court of Appeal thinks the issue in this regard is fairly straightforward. There's a list of appealable orders in the statute, and this isn't one of them. That part's true. Then there's also the common law rule that makes various orders appealable because they effectively dispose of a case. But this order isn't one of those, the Court of Appeal says, because there's no "case" here in the first place, so nothing that the order disposes of. Since the order stopped the case from being filed initially, there's no case, so nothing ended, so there's no right to appeal.

Maybe that's technically right, as far as it goes. But the order still practically disposes of a case, in my view. Stopping someone from filing a case in the first place "disposes" of that case. Practically as well as otherwise. There is, for example, a case number assigned to Mr. Deal's requests -- those were cases that ended as a result of the order. And even if there weren't case numbers, you can't stop someone from filing an appeal, and thereby insulate yourself from being reversed, by the expedient of preventing them from filing litigation in the first place.

We don't generally let a single judge decide things once and for all without any right to review whatsoever. Yet that is precisely what the Court of Appeal's holding does here. A vexatious litigant prefiling order always reposes discretion in the presiding judge as to what future cases may or may not be filed, and the judge reviews those proposed filings and decides whether they should go forward. That decision is not immune from review. If the judge gets it wrong, the error should be corrected. That's the reason for appeals. And it's not a "piecemeal" appeal problem here. There's one order, then the proposed case is over -- it can't be filed and prosecuted as proposed. 

That's an appealable order, in my view.

So go ahead and dismiss this appeal on the merits as frivolous. Which, quite frankly, the Court of Appeal can most likely similarly do with respect to the overwhelming majority of appeals filed by vexatious litigants.

But at least let 'em appeal, rather than making a decision by a single judge the final word forever.

People v. Richardson (Cal. Ct. App. - June 16, 2022)

Hmmm. Ponder this one, if you will.

It's the only published opinion from the Court of Appeal today. (Thus far, anyway.) It's got a lot of intuitive appeal.

But, upon reflection, I wonder if that intuitive appeal isn't entirely wrong.

The question is whether Ruman Richardson was a "major participant" in a first degree murder. If so, he's ineligible for resentencing, and his sentence of 26 years to life stands.

It was a botched robbery in which Mr. Richardson was the getaway driver. Mr. Richardson stayed in the vehicle and never went into the store; by contrast, after ordering the store owner to get down on the floor, one on his confederates shot and killed the owner.

Normally, if you're merely the getaway driver, precedent's pretty clear that you're not a major participant -- even though you're still guilty of felony murder -- and are hence potentially eligible for resentencing. There's a California Supreme Court case on point in this regard. So Mr. Richardson has at least facially a fairly strong case.

What dooms him in the Court of Appeal, however, is that after the shooting, once his confederates left the store, a bystander saw the participants heading towards the getaway vehicle, at which point Mr. Richardson (who was still in the car) said something like "Shoot him, shoot him." At which point one of the other participants in the crime fired a shot at the bystander, which missed but nonetheless deterred him from further interaction with the criminals, who then fled.

According to the Court of Appeal, the fact that Mr. Richardson said "Shoot him, shoot him" means that, beyond a reasonable doubt, he was a major participant in the murder.

Now, Mr. Richardson's got a decent response, which is that his saying "Shoot him, shoot him" had nothing whatsoever to do with the actual murder, which had already happened by that point. Sure, it'd be great evidence of his active involvement if the bystander had been killed. But he wasn't.

But the Court of Appeal holds that the fact that Mr. Richardson could command his confederates to shoot at the bystander proves that he's a major participant; again, beyond a reasonable doubt. In the words of Justice Ramirez: "[P]etitioner’s statement, “Shoot him,” distinguishes this case from Banks. Up until that point, for all the evidence showed, petitioner was no more than a getaway driver. That statement, however, shows that he was aware that his coparticipants were armed. Even more important, it shows that he took on — or already had — a role in directing the robbery and the conduct of his coparticipants. He had the right to decide to use lethal force and to order his coparticipants to do so."

As I was saying, at first glance, there seems a lot right about that conclusion.

But the more I thought about it, the more I thought that it's wrong. Or, at a minimum, doesn't establish the requisite proof (beyond a reasonable doubt) to a categorical extent.

I get why Justice Ramirez would think that a person who said "Shoot him" was indeed in a leadership position and hence a major participant. Or, as he said, that the command demonstrates that the speaker "had the right to decide to use lethal force and to order his coparticipants to do so."

But, in truth, that you give an order doesn't mean that you necessarily have that role. Maybe you're just yapping. Maybe you're just kibitzing. Maybe you're just excited (and/or excitable). Indeed, we've even invented a term for people who give commands from precisely such a role: we say that they're speaking from the "peanut gallery". It's eminently conceivable that Mr. Richardson, who was (after all) only the getaway driver, was speaking from precisely such a setting. I don't see how one can categorically say, without an evidentiary hearing, that the fact that he said "Shoot him" necessarily means that beyond a reasonable doubt he "had the right to decide to use lethal force and to order his coparticipants to do so."

I've been watching a lot of kids sporting events recently (it being summer and all), so let suggest an analogy that I think demonstrates the point.

Imagine a team in the middle of a closely contested game. A player on the winning team -- let's call him "Richardson" -- mostly sits on the bench, which (coincidentally) is in the shape of a getaway vehicle. In the game, Richardson plays maybe a minute or two, so he's in the game, but he doesn't shoot, doesn't score, and definitely isn't one of the main players in the game. But, at a critical moment in the game, the best player on his team has the ball on offense and is approaching the other team's goal. I'm thinking it's a water polo game, but it could be basketball, soccer, or what have you. In the midst of the best player's attack, from the back row on defense -- or maybe even from the bench -- Richardson screams "Shoot, shoot!" And the best player indeed thereafter shoots and scores, thereby winning the city championship.

At which point Richardson puts on his resume: "Major participant in City Championship game."

I doubt many of us would think that Richardson's appellation in that regard was accurate. Sure, the guy shot. But unless the guy shot because Richardson told him to, I'd hardly call Richardson a major player on the team (or in the game). Ditto for a parent (or fan) in the stands who likewise said he was a "major participant" in the victory because he, too, screamed out "Shoot!" before the guy took the shot.

It's simply not true that just because you tell someone to shoot that means that the speaker had "the right to decide to [shoot] and to order his coparticipants to do so." Maybe you did. But maybe, like the bench player or fan, you were just talking -- potentially, even, out of turn and/or totally irrelevantly.

Indeed, in the present (actual) case, the case for "major participant" is even weaker than in the not-so-hypothetical I just posited. Because, here, the speaker (Mr. Richardson) didn't even suggest the winning shot. He merely suggested a different "losing" and/or irrelevant (to the murder charge, anyway) shot. Mr. Richardson didn't order the shot that killed the owner; instead, he suggested a shot that missed, and didn't give rise one iota to the murder charge. To compare it to my analogy, it's as if the sports-playing Richardson said that he was a "major participant" because Best Player previously scored a goal in a one-goal game and then, later, Richardson told Best Player to "Shoot, shoot!" at which point Best Player did so and missed.

In such a setting, we'd hardly call Richardson a "major contributor" to the victory just because he told someone else to shoot an unsuccessful shot at some point later in the game. So too here.

That you tell someone to shoot doesn't prove that you've got that role. If you're a coach and the guy listens to you and shoots, okay, great, I can see that argument that you're a major contributor.

But Mr. Richardson wasn't the coach. He was the getaway driver. That's not enough, standing alone, to establish major participation beyond a reasonable doubt as a matter of law.

Even if the guy later screams "Shoot."

Adame v. City of Surprise (9th Cir. - June 14, 2022)

I don't typically read the syllabus of Ninth Circuit opinions, and prefer to just jump into the opinion itself at the outset. But today, for some reason, my eyes took a glimpse of the first couple of sentences of the syllabus -- which were set off in a separate paragraph -- and it took me for a loop.

The syllabus starts by saying:

"The panel certified to the Supreme Court of Arizona the following questions: 1. Does A.R.S. Section 12-820.05(B) provide immunity from liability? If the latter, the Court need not answer any further questions because our court would lack jurisdiction over this interlocutory appeal. If the former, please answer the following additional questions."

After reading this, my brain thought: "Wait. What?"

So I read it again. And again. Confirming that, yep, there's indeed no "former" or "latter" in that paragraph and hence that it didn't make any sense.

When I read the actual opinion, it wasn't until a dozen or so pages through the thing that I came across the words that the syllabus meant to summarize. Which were:

"Does A.R.S. Section 12-820.05(B) provide immunity from suit or only immunity from liability? If the latter, the Court need not answer any further questions because our court would lack jurisdiction over this interlocutory appeal. If the former, please answer the following additional questions."

Ah. Now I get it.

Those last five words of the first sentence were omitted from the syllabus, but are fairly important. Now it makes sense.

Johnson v. WinCo Foods (9th Cir. - June 13, 2022)

I suspect that this opinion is right, and that certification to the California Supreme Court isn't required because the federal courts can figure out the correct answer themselves. But I also wonder what the relevant line is on the merits.

The Ninth Circuit holds that an employer doesn't have to pay you for the time (or expenses) you expend taking the job's mandatory pre-employment drug test, on the theory that you're not yet an employee. That sounds right. They certainly don't have to pay you for the time you spend in the job interview, or for the gas that you waste getting there. You're not an employee yet; those costs are on you. That's existing law (at least as we perceive it) and common sense. Ditto, the Ninth Circuit says, for a pre-employment drug test. At least when, as here, the employer's crystal clear that you're not yet hired, and that the job offer that they have given you is a conditional one dependent on passing a drug test. The drug test is thus a condition precedent, which means you're not an employee yet, which means you don't get paid.

But how far does this go?

On that same theory, what if I offer you a job as a grocery bagger at my store, but say that the offer is contingent on you proving that you're indeed qualified -- and proof of that is me watching you spend 15 minutes bagging groceries at my store. Do the minimum wage laws etc. still not apply? Do I get to get 15 minutes of free work out of you that way? What if it's an hour, or a week, or a month? Still no pay? (By the way, I suspect this isn't an absurd hypothetical; in lots of job interviews, employers give job applicants "real world" questions and have 'em answer them -- the exact type of work that the applicant will be doing on the job. I could easily see a law firm interviewing a potential lawyer, for example, ask the interviewee about her thoughts on a particular legal matter that's the exact subject of an existing suit and/or upcoming brief.)

Every single argument that the Ninth Circuit makes here applies equally to that hypothetical, so on those same theories, no compensation would be due.

I think the panel anticipates this argument when, at the end of Part I of the opinion, it distinguishes (unnecessarily, I might add) a district court case that held that staffing agencies are required to pay employees they place with third parties. (Last time I checked, cases from the Northern District of California don't bind the Ninth Circuit.) The panel says that that prior case makes sense -- as indeed it does -- because the employees "were doing the employment agency's work" at the time, so I suspect the Ninth Circuit might say it's the same thing with my grocery bagger hypothetical, since that's what they were hired to do.

But then I'll just slightly change the facts; to be a grocery bagger in my store, as a condition precedent, I require you to clean my house and mow my lawn. I want to see if you have the stamina to be a bagger in my store, I say. Just like, in the present case, the employer is looking to see whether the applicant is qualified (i.e., free of drugs) to take the job. Still no requirement that I pay you? (And, to make things even more complicated, what if my pre-employment offer requires you to mow my neighbor's lawn, or pick up trash in on a public highway for 40 hours, instead -- that doesn't even "benefit" me, much less is it your job. Still no entitlement to pay?)

Sometimes, even a facially easy case brings up incredibly tough line-drawing obligations that give one a sense that perhaps our intuitive understanding of what is "obvious" isn't, in fact, so obvious. To me, at least, this is one of those cases. I'm truly unclear where one rightfully draws the line between paid and unpaid work in the job application context.

In re Marriages (Cal. Ct. App. - June 8-9, 2022)

The Discovery Channel has its well-known "Shark Week." By contrast, in the Court of Appeal, it's starting to look like it's "Bigamy Week."

The first of these cases was yesterday, and involved a procedural morass in family court involving the marriage of Samir Elali and Mayssa Marchoud. There were eight months of hearings about precisely who married whom when -- and to what effect -- but the long and short of it was that Samir married someone in California (whose name was Angeles Elali) but then, while still married, married Mayssa in Lebanon. So when Mayssa goes to family court, the trial court bounces her petition, on the grounds that she's not really married since Samir was already married. Bigamy and all. And the Court of Appeal affirms.

(Why you want to get married to someone else after being married for 35 years -- and not divorcing your first spouse -- is beyond me, but that's neither here nor there.)

Then, today, we see yet another published opinion involving bigamy; this time, between Pedro Aviles and Jessica Vulovic. Here, Jessica's married to Alexander, but wants to get divorced, so files a petition for dissolution. But never actually gets divorced. Then, while still married to Alexander, she marries Pedro.

Now, in this one, Jessica says she thought she was actually divorced, even though she wasn't. So after she get told that she's still married (at a child support hearing, no less), she gets actually divorced, and then a year later marries Pedro again, this time in a Catholic church. But they don't actually marry, at least as far as the state's concerned; they never actually get a marriage certificate. And then, six months later, Jessica marries Pedro for a third time, this time at a winery with 200 guests. This time, do they get a marriage certificate? No. They do not.

You'd think that with all these marriages, it would stick, right? Nope. Seven years later, they separate, and Pedro finds out -- for the first time ever -- that Jessica was still married when he married her. (The first time, which was the only "legal" marriage.) So he asks for an annulment, whereas Jessica asks for spousal support.

But this time, the whole "bigamy" thing turns out to be less dispositive. Because the Court of Appeal holds that, bigamy or no, Jessica was at least a putative spouse since she thought (wrongly) that she was not (still) married when she got married, and regardless of the reasonableness of that belief, she's thus entitled to regular old spousal benefits as a putative spouse.

The first case comes from San Bernardino County. The second one comes from Riverside County.

Who knew that bigamy was such a big thing in the Inland Empire?

U.S. v. Mendez (9th Cir. - June 7, 2022)

It's weird sex video week thus far in our particular locale.

Yesterday, it was secret up skirt videos and the like. Today, it's putting secret camera in the bedroom of a fourteen year old girl so you can watch her masturbate. Both are incredibly poor decisions that get you put in prison. Today, in federal prison.

It's also another statutory interpretation case. As usually applied, the statute says it's a (big) federal crime to "employ, [] persuade, induce, entice or coerce" a minor to create kiddie porn. But that didn't happen in the present case, since the minor didn't know she was being filmed.

The word I left out in the brackets, however, is the word "use".

Does that make a difference?

I'm not a certain, to be honest, what it means to "use" a minor "to engage in sexually explicit conduct for the purpose of" producing kiddie porn. It's common sense what it means to "persuade" a minor to do so. But "use"? That's just a weird word to employ in this context.

Given the other words in the relevant list, I would have facially thought that what Congress was getting at is that you can't "cause" the minor -- in one way or another -- to engage in sexual conduct. Which didn't happen here, since she was doing it on her own; she just didn't know she was being taped.

Apparently, at least some of the members of today's panel (Judges McKeown, Christen and Miller) were at least potentially of a similar view. The opinion says, in relevant part -- and I really like the panel's forthrightness here -- that "writing on a clean slate, some of us might interpret § 2251(a) differently by, for example, concluding that the statutory language requires the perpetrator to cause the minor to “to engage in sexually explicit conduct.”

But the panel unanimously agrees that Ninth Circuit precedent says otherwise. (Though they might be interpreting that precedent a bit broadly, TBH.) So the conviction gets affirmed.

By the way, the published opinion doesn't mention it, but Mr. Mendez gets sentenced to 20 years in prison.

Did I mention that the decisions this week have been incredibly poor ones?

Doe v. Lee (Cal. Ct. App. - June 6, 2022)

I wish this opinion had stayed unpublished. Indeed, I might prefer it were the California Supreme Court to revert its status to what it once was.

The opinion doesn't include many facts at all -- indeed, it's almost entirely bereft of them -- but from what you're able to glean from the opinion, it looks like the defendant took secret videos of the female plaintiffs in their homes, including an "upskirt" video of one of them. So they sued, and at a bench trial, recovered compensatory damages that totaled a little over $800,000.

Not surprisingly, given the nature of the torts, there were also punitive damages imposed. For a total of $240,000. An amount that's (1) a fraction of the compensatory damage award (a little under 30%), and (2) the value of an LLC interest that the trial court found the defendant continued to possess in a family business.

Seems reasonable to me, no? You can't invade someone's privacy by secretly taking sex-related (or other) videos. If you do, don't be surprised if you get spanked with some punitive damages.

But the Court of Appeal reverses the punitive damages award entirely.

Two things about that result seem problematic:

(1) I'm not persuaded that a $240,000 award isn't just fine. The Court of Appeal says that that'd be his entire net worth. For purposes of argument, at least, I'll stipulate to that. So what? Sometimes what you do is sufficiently horrible that you justifiably lose all your stuff. Sorry about that, but maybe next time, don't do what you did -- whether it be murder (I'm talking about you, O.J.) or secret videos (here). The various California cases on the issue rightly say that, generally, you shouldn't take away everything from the defendant -- though it bears mention that most of these involve corporations -- but they also say that sometimes, that's just fine. (See, e.g., O.J.). This seems like one of those "just fine" cases. If you only have $240,000, and you commit a tort that imposes (as here) $800,000+ worth of harm on the victims, then, yeah, we're taking all your money. You did it to yourself. Nor am I particularly sad by the fact that, with punitive damages, we're stopping you from getting out repaying by filing bankruptcy, since those types of damages aren't dischargeable. That's a feature, not a bug.

(2) Plus, I'm confused about the last sentences of the opinion, in which it directs the trial court to vacate the punitive damages award and says that a retrial isn't required. But when a punitive damages award is excessive, the usual rule is that we reduce it -- or order its reduction on a retrial -- not eliminate entirely all punitive damages recovery. Yet that's entirely what the opinion appears to do here. Is it really the Court of Appeal's holding that because the defendant is only worth $240,000, there's no amount of punitive damages that can be added to the $800,000 judgment?! If so, that's crazy (to me). It defeats the whole purpose of punitive damages in contexts like this one.

At the very end of the opinion, where you see the Court of Appeal's order that publishes the opinion, you find something that I've rarely (if ever) seen before -- Justice Hoch's one-sentence statement that she wouldn't publish the opinion. I can see why. I'm probably in the same camp. (Though, unlike Justice Hoch, I might not have even joined the result.)

I'm sympathetic to the view that punitive damages shouldn't generally take away every penny from a defendant. But sometimes the compensatory damages do that anyway, and I'm fine with that. And in some circumstances, like this one, the fact that the harm you (deliberately) incurred exceeds the amount of money that you currently have on hand shouldn't deprive the plaintiff of the right to spank you with an additional award of punitive damages.

Yet that's precisely what the Court of Appeal seems to hold.

In re Marriage of Hsu (Cal. Ct. App. - June 2, 2022)

There are advantages to being rich. Obviously.

But there are downsides as well. Two of which are (1) your kids often fight over your money after you die, and (2) your spouse sometimes fight over your money after you break up.

Facts evident, in spades, in this afternoon's opinion.

You see this all the time, unfortunately. It's a skewed sample, of course, since these opinion all result from lawsuits, so necessarily, relationships went awry.

Still. If the relevant individuals knew it'd end up that way, you wonder whether they'd have tried as hard as they did to make all that money.