U.S. v. Richards (9th Cir. - Oct. 31, 2022)

Judge Callahan authors an opinion that affirms a criminal conviction and sentence. That's surely not a "man bites dog" story.

What is unusual, however, is the nice way in which she does it.

The opening paragraph of the opinion reads: 

"James Richards appeals from the imposition of consecutive 24-month sentences for violating the conditions of his supervised release for possession of two guns and ammunition. He argues that the consecutive sentences: violate his rights under the Fifth and Sixth Amendments as explained in United States v. Haymond, 139 S. Ct. 2369 (2019); violate his rights under the Double Jeopardy Clause; and are not supported by sufficient evidence. . . .  Richards’ arguments on appeal are not persuasive."

Fairly typical, right?

But what I deliberately left out with the ellipsis are the following words: "Although well presented by counsel . . . ."

Hey! That's very sweet. 

Always great to get kind words from a Ninth Circuit judge. Even when you lose.

Appellant's counsel is Thomas Sprankling of WilmerHale. I'm assuming it's a pro bono case, since last time I checked, Wilmer didn't typically make bank by representing criminal defendants like this one.

(A short synopsis of the defendant's criminal history: "In 2007, Richards was arrested for possession of crack cocaine and a gun. He pled guilty to Count One, possession with intent to distribute crack cocaine, and Count Three, possessing a firearm in furtherance of a drug-trafficking crime. He was sentenced to 106 months of incarceration. Richards was released from prison in June 2016 and placed under supervised release. In June 2017, the terms of his supervised release were modified to account for his substance and alcohol abuse issues. In September 2018, Richards’ supervised release was revoked because of his failure to properly communicate with his probation officer and for driving a motorcycle on a suspended license. He was sentenced to two months in custody, an additional 58 months of supervised release, directed to reside in a half-way house for 10 months, and placed on GPS monitoring for the first 150 days of his residence at the half-way house. In February 2019, Richards left the half-way house without permission, for which the district court imposed additional GPS monitoring and required Richards to abstain from alcohol. On March 6, 2020, a Petition for Warrant for Person Under Supervision was filed charging Richards with calling “several witnesses, including a girlfriend, via a mobile video connection, threaten[ing] to kill them, and show[ing] a black handgun.” This appeal arises out of Richards’ actions two days later, on March 8, 2020.)

One benefit of doing pro bono appeals is that you get in a little practice, as well as perhaps add to your resume. And here, there's the bonus of getting some kind words from a federal judge.

Nice.

Trujillo v. City of Los Angeles (Cal. Ct. App. - Oct. 27, 2022)

You can think about this case in one of two ways.

One way is to believe that the plaintiff is being sleazy. Defendant makes a 998 offer shortly before the hearing on a summary judgment motion. At the hearing, the trial court orally grants the motion, and two minutes after the hearing ends, the plaintiff accepts the 998 offer and (a couple minutes after that) files the acceptance with the court. One way to look at this is to say that there's zero reason to enforce the offer in such settings, since the case is over anyway and letting people do this only discourages settlement since they can wait until after the MSJ hearing to decide whether to accept the offer or not.

The other way to look at this is to think that the defendant is being a moron, so gets what it deserves. The statute says that offers are good for 30 days or until the start of trial, unless they're revoked. Who makes a 998 offer right before an MSJ hearing and then doesn't revoke it on the eve of the hearing?! How stupid is that? If that's what the attorney (or client) wants to do, fine, but then they're stuck their incredibly unwise decision. They made an offer, it wasn't revoked, and it was accepted. End of story.

The Court of Appeal adopts the first vision.

Vought Const., Inc. v. Stock (Cal. Ct. App. - Oct. 24, 2022)

It seems eminently sensible to me what the trial court did here, and the Court of Appeal largely affirms. I just have one question.

It's a home remodel, and the owner and general contractor are in a tiff. The contractor files suit because it says it wasn't paid everything that was due, and the owner says that the contractor is liable for liquidated damages due to the delay in finishing up the project. On the merits, it looks like both sides have decent arguments, and are both partially right. Which is precisely what both the trial court and Court of Appeal conclude.

So the trial court gives the contractor a fraction of what it's asking for and offsets this amount by part of the damages the owner claims as a result of the delay. Seems fair, equitable and right.

Here's my question:

The trial court refuses to award attorney's fees because it says there's no real prevailing party since both sides were somewhat right and somewhat wrong. The Court of Appeal affirms. That seems spot on. The trial court had discretion in this regard, both sides definitely prevailed in part, so I completely agree. No prevailing party for attorney's fees purposes.

On that same reasoning, the trial court denied costs to the contractor. On this issue, however, the Court of Appeal reverses. Justice Pollack says -- reasonably, in my view -- that cost awards are mandatory under Section 1032 of the CCP for anyone who obtains a "net" (e.g., even partial) recovery, so the contractor is entitled to its costs even though both sides partially won.

At first glace, that seemed entirely right.

But then I went back and looked at the relevant statutes.

Here's what the specific "contractor" statute (Section 8800) says; e.g., the one that the contractor is specifically suing under, and the one under which it (unsuccessfully) sought an award of attorney's fees:

"In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney's fee."

Recall that the Court of Appeal (correctly) affirmed the trial court's view that there were no attorney's fees due because there was no "prevailing party" under that statute. The Court of Appeal nonetheless says that there's a "prevailing party" under a different statute, Section 1032, since the relevant precedent under that one says that anyone with a net recovery is entitled to costs.

Sure enough.

But the specific statute (8800) also covers cost awards, not just attorney's fees. ("[T]he prevailing party is entitled to costs and a reasonable attorney's fee."). We already decided that there was no prevailing party under that statute. Does a specific statute (8800) prevail over the otherwise-applicable general statute (1032) when the two, as here, conflict?

I know that in FEHA cases, the answer is definitely "Yes" -- that in those cases (e.g., employment discrimination actions), a prevailing defendant is not normally entitled to costs under Section 1032 even though it's the prevailing party, because the more specific FEHA statute that governs costs otherwise provides. Now, admittedly, there, the specific statute (Section 12965) expressly says that it trumps the general rule, whereas here, there's no such "express" supremacy claim. (Though I'll mention that even Section 12965 only expressly says it trumps section 998, not 1032, so arguably those situations and the present one are perfectly analogous on that score.) But what about the underlying principle? If there's a specific statute that addresses both costs and fees, and a court rightly decides that there's no recovery under that one, can you nonetheless still recover costs under the more general one?

Justice Pollack doesn't answer that question here. Presumably, in his defense, because there's not an argument by the parties on that score.

Still, I'd like to know the answer. Because otherwise I think people will get the impression -- perhaps correctly, but perhaps erroneously -- that the Court of Appeal hereby holds that the general entitlement to costs in Section 1032 is not trumped by more specific cost recovery statutes.

Anyway, that's my question. One that seems fairly important, I suspect. Not just in this case, but in a whole lot of other ones as well.

Cadena v. Customer Connexx LLC (9th Cir. - Oct. 24, 2022)

Today sees a very thoughtful, persuasive opinion by Judge Bybee, joined by Judges Callahan and Collins.

Now, as to the facts, I'm not really certain that it actually takes (as plaintiffs claim) "between 6.8 to 12.1 minutes" to boot up a computer at the beginning of work, or that it similarly takes "an average of 4.75 to 7.75 minutes to log off and boot down" a computer after work. Unless these computer are from, say, 1990. My work computer takes about a minute or two to boot up, and less than 30 seconds to shut down. And I assure you that the computers at my work are about as old and slow as any known to man.

But if, in fact, it takes that look to boot up a computer, and because of the employer's timekeeping system, the plaintiffs only get paid once they boot up the computer and log it, then, yeah, they should get paid for that time, and weren't. Their job is to listen to calls over a computer, and booting up that computer is part of that job. You can't do the former without the latter.

If it were a minute or two, maybe that time would be de minimus -- an issue that the panel leaves for the district court on remand. But 12 minutes to boot up a computer?! If that's really true -- and I doubt it, but what do I know about the computers at issue here? -- then, yeah, they should get paid for that.

Something for the district court to decide as a factual matter on remand.

Miller v. Dep't of Real Estate (Cal. Ct. App. - Oct. 17, 2022)

Today's opinion from the Court of Appeal involves a mobile home park in Oildale, California.

I've never heard of Oildale before, though once I looked it up, I recall driving through it at some point. The name doesn't make the place sound very attractive. Accurately so. 

Here's the picture of Oildale that's most easily accessible on the web. That also jibes with my memory of driving through the place. Not exactly the most desirable place in the universe to reside.

Doing so in a mobile home park probably makes it even less intriguing.

When you ask Mr. Google what Oildale is most known for, here's what it tells you:

"Oildale, with a population of about 32,000, is famous for being the birthplace of Merle Haggard and for the massive oil patch that drew Dust Bowl migrants west. It is also known for its intractable poverty, drug problems and a legacy of racism against blacks."

Not exactly the most positive advertisement for the place.

I'm loathe to be dismissive of places others live. Often, they have no choice. Sometimes they even grow to love the place, notwithstanding its faults.

But this particular area looks rough. At a minimum, it's proof positive that California is not uniformly the land of milk and honey.

Sometimes it's just miles and miles of ugly, stripped bare oilfields.

U.S. v. Saelee (9th Cir. - Oct. 11, 2022)

The most recent published Ninth Circuit opinions were from nearly a full week ago -- October 5 -- so, perhaps not surprisingly, we get a dump today of nearly a half dozen of them.

There's aren't a ton of lessons to be learned; some of the opinions are merely amendments. But one thing that this opinion might teach people is that if you feel like getting a ton of Ecstasy pills from Germany to the United States, simply mailing them there (in this case, to California) via the USPS doesn't really work so well. Because, well, the United States is somewhat familiar with that tactic, and screens for it.

Even if you use fake names on both the shipper and recipient side. You still get busted.

I'll also add that it's interesting that, in preparing the search warrant, the Homeland Security agent here repeatedly misspelled the name of the drug. It's a complicated spelling, to be sure. But it's Ecstasy. Not Ectsasy.

Kruthanoochi v. Glendale Adventist Med. Center (Cal. Ct. App. - Oct. 5, 2022)

It doesn't happen to be my particular religion, but two opinions from the Court of Appeal were published a couple of hours before sunset on Yom Kippur, and they seem to me to have a related underlying theme -- even though they are factually and legally quite distant from each other.

The first case is this one, which says 10/4 at the top but which was actually posted on the afternoon of the 5th. It's a medical malpractice lawsuit posing as an elder abuse claim. There, an elderly man named Daniel Kruthanooch went to Glendale Adventist Hospital because he "woke up weaker than usual" that morning. Mr. Kruthanooch "had a history of coronary artery disease, hypertension, hyperlipidemia, and diabetes. He had also had back surgery earlier that year." Suffice it to say that Mr. Kruthanooch doesn't seem like he was in awesome shape even prior to the hospital visit.

At the same time, he definitely didn't get any better during the visit. Indeed, in at least one respect, it seems he got worse.

To try to figure out what was wrong with Mr. Kruthanooch, they sent him to have an MRI. Now, as you undoubtedly know, it's super important not to have metal on you when you go into those things. So they check, and don't find anything. But for some seemingly inexplicable reason, they don't notice that a metal ECG pad was left on Mr. Kruthanooch's body. So when he goes into the MRI machine, things start heating up a ton, and Mr. Kruthanooch presumably feels the thing doing so -- indeed, he starts moving around in the MRI machine, at which point the person running the thing tells him to cut it out and stop moving, but he does it again, but whatever, eventually the whole MRI thing is over.

They pull him out of the MRI and he tells the doctor that "something was going on with his lower abdomen.” So they check it out and, lo and behold, there's the ECG pad that was left on during the MRI, and when they pull the pad back, they totally discover a burn right under it -- the nurse said it "looked like a blister or second-degree burn.” So they admit him for a couple of days, treat him, and then let him go. But not before the doctor writes in the patient's chart: "While an [sic] MRI apparently the EKG electrode was not removed and the patient sustained a second degree burn to the left lower quadrant.”

Eighteen months later, Mr. Kruthanooch sues for the burn. Eight months after that, he dies. A year or so later, the case goes to trial, and the question is whether the defendant is liable.

Here's where, in my mind, some atonement is due on both sides.

First, at trial, the defendant puts an expert -- "Dr. Terry Dubrow, a specialist in reconstructive plastic surgery" on the stand. Dr. Dubrow opined that "the metal in the ECG pads did not cause Kruthanooch’s burn" and that "the actual cause was 'unknowable'” because "Kruthanooch was “very, very ill” and that anything from “fluid status changes” to something on the surface of Kruthanooch’s skin could have been the cause."

To which I say: Shut up. Or at least atone for what you said. Admittedly, I wasn't at the trial. But I have zero doubt that the ECG pads in the MRI caused the burn. As did the jury, which found liability.

But then, on the other side, there's the damages testimony offered by plaintiff:

"The jury also heard testimony from Daniel and Sam Kruthanooch, the decedent’s sons. Sam testified that he had advised Kruthanooch to go to the hospital when his father informed him that he was feeling weak. When he visited his father that evening, he learned of the burn. He testified that the burn “seemed to affect his walking immediately.” Sam testified that, prior to the burn, Kruthanooch “did everything on his own,” and that after the burn he relied on his wife “to do just about everything for him,” such as helping him to move about the house, helping him to shower and use the bathroom, cooking his meals, and doing the shopping—things that Kruthanooch had previously handled on his own. Sam recognized that his father “had a lot of health problems” but testified that “the burn just made those things much worse.” Daniel testified that, prior to receiving the burn, Kruthanooch was “very independent” and was “up and adam [sic] . . . a go-getter . . . and he did everything himself.” After the burn, Daniel testified that Kruthanooch was “a different person,” “couldn’t get up,” and “couldn’t do stuff on his own.”"

Now, I'm certain that the burn didn't help anything, and probably made things a bit worse. But to try to frame the burn as causing most or all of the problems this already-seriously-weak elderly man had to go through during the final year(s) of his life seems less than plausible. He might perhaps have been "a different person" during that very last period before his death. But it wasn't primarily due to the burn from the ECG pad.

Which, perhaps, is why the jury awarded no damages.

I understand that in both civil and criminal cases, people -- including those who testify under oath -- sometimes act more as advocates rather than neutral witnesses.

But that's not what the process calls for. As well as something for which to atone if you've participated in such efforts.

Then there's the second case, this one. It's a "religious" case. Sort of. I'll just have to give you the opening lines of the opinion and you'll readily see that it's consistent with today's theme:

"April Elizabeth Mancini owns the Jah Healing Kemetic Temple of the Divine Church, Inc. (the Church), whose adherents consume cannabis blessed by Church pastors as “sacrament.” . . . [In early 2018,] the Church moved to its current location at 208 E. Big Bear Boulevard. In April 2018, County authorities executed a search warrant of the premises. Officer Jorgensen observed many signs that the Church was operating a dispensary, including cabinets filled with cannabis in jars, cannabis-infused drinks and edibles, vape cartridges, teas, creams, oils, cash registers, scales, packaging materials, bags, medicine bottles, pricing information, and an ATM machine. . . . Officer Jorgensen conducted another inspection of the premises in August 2018. He observed a menu of cannabis products and a “cash only” sign. When Officer Jorgensen asked Mancini whether the Church continued to dispense cannabis, she responded that “church members come in, they tithe, choose their sacrament, pray, and then they leave.”"

Yeah. I get it. No need to say anything more. I think we all know pretty much exactly what's going on here.

Karton v. Musick, Peeler, Garrett LLP (Cal. Ct. App. - Oct. 3, 2022)

There are a lot of similarities between Jarndyce v. Jarndyce -- a fictional case -- and the dispute at issue in this morning's opinion, which is unfortunately all-too-real.

It begins with a simple default judgment in 1999 for $65,000 for attorney's fees allegedly owed to Beverly Hills divorce attorney David Karton.

Which then morphs into a two-decade-plus monster of multiple lawsuits, appeals, collateral attacks, and enforcement actions all across the country -- Pennsylvania, Tennessee, Arkansas, etc. -- raising all sorts of different issues, the unifying theme of which is the attorney's fees allegedly owed to the "prevailing party" in all of the various and sundry related lawsuits. Fee requests that are often monstrously large; to take but one example, a $1.66 million fee request.

(Remember, by the way, that the original default judgment was for a mere $65,000 in fees.)

And I'm not even mentioning the various orders involving sanctions, contempt, etc.

Sometimes litigation takes on a life of its own. A monstrous life.

This is one of those cases.