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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That's what I thought too.

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

Justice. Right?

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

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

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

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

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

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

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

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

My reaction to reading those words was simple and straightforward:

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

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

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

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

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

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

Plaintiff says no; defendant says yes.

The trial court agrees with defendant and grants summary judgment.

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

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

Still do, I might add.

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

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

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

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

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

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

Yet there was the opinion again.

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

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

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

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

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

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

But I still am left completely puzzled as to why.

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

So, again: Why San Diego?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This is one of the latter occasions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On that, we all agree.

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

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

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

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

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

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

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

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

You learn something new every day.

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

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

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

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

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

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

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

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

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

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

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

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

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

So what's the holding, if any?

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

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