Monday, November 28, 2022

People v. Camacho (Cal. Supreme Ct. - Nov. 28, 2022)

Adrien Camacho shoots and kills a police officer during a routine traffic stop in front of lots of people for basically no reason, so it's not at all surprising that (1) he's sentenced to death, and that (2) the California Supreme Court unanimously affirms.

Mr. Camacho says that he was in a drug-induced psychosis during the murder, which the jury rejects, and convicts him of first-degree murder instead. Everyone on both sides agrees that Mr. Camacho had levels of methamphetamine and (likely) heroin in his system that were so high that they were "toxic" at the time of the shooting, so that's a point definitely in Mr. Camacho's favor on the "the shooting made no rational sense" point. Now, the prosecution theorized that Mr. Camacho deliberately shot the officer because he was a felon and had a gun and a small amount of drugs in the car, neither of which he was allowed to have (and which I agree the officer was likely to discover, since Mr. Camacho had no driver's license). I agree that's plausible as well.

Though I wonder if the competing theories are really mutually exclusive. After reading the whole thing, my guess is that (1) Mr. Camacho was indeed worried that the officer would catch him, but (2) freaked out at that reality -- in a measure far in excess of what any rational person would do -- in no small amount due to the incredibly high levels of drugs in his system. It's not like anyone would coherently conclude that (1) I'm likely to be busted for being a felon in possession, which would mean spending two to seven years in prison (after good behavior credits), so (2) it makes rational sense to shoot and kill the officer in front of tons of witnesses, hop in his police car, and try to escape. Because, this just in, No. 2 is almost certain to fail, and results in you -- at best -- spending the rest of your life in prison. The whole shebang.

But that's what Mr. Camacho decided was the wisest course of action.

And I'd bet dollars to doughnuts that the meth didn't exactly help on that front.

Monday, November 21, 2022

WV 23 Jumpstart LLC v. Mynarcik (Cal. Ct. App. - Nov. 21, 2022)

I've never thought about it before -- and I've taught Civil Procedure for over a quarter century -- but, yeah, I agree with the Court of Appeal that a judgment debtor doesn't have to have minimum contacts with the state in which a sister state judgment is rendered. If Nevada enters a judgment against me, and I had the requisite minimum contacts with Nevada (the forum state), then the plaintiff can subsequently register that judgment in California even if I have zero contacts with California. The minimum contacts analysis only applies to the rendering court, not the subsequent forum in which the judgment is registered. Because the registration doesn't create a new judgment; it's only enforcing the old one. (Plus, if you have no contacts with the subsequent state anyway, then you won't care much that there's a judgment against you in the state in which you have zero contacts, right?)

So Justice Krause's opinion seems entirely right to me.

Nonetheless, doesn't it strike you as strange that the plaintiff can accomplish what it successfully did here? The judgment in Nevada expired after 6 years, and wasn't renewed. So that's the end of the judgment in Nevada, right? In the interim, however, the Nevada judgment was registered in California, and thereafter renewed for another 10 years. That seems fine; there's a California judgment at that point, but not a Nevada judgment (since it expired). That's the way these things work.

But then plaintiff uses the existing California judgment and registers it in Nevada. Which Nevada apparently allows.

That just strikes me as strange. If Nevada wants judgments to expire after six years (if they're not renewed during the relevant Nevada time frame), why would Nevada allow a plaintiff to circumvent this rule by registering the judgment elsewhere and then "bouncing it back" long after the expiration of the underlying Nevada judgment?

I get that Nevada gets to do whatever Nevada feels like doing, and that that's not an issue for a court in California.

But seems like a bad rule to me.

Tuesday, November 15, 2022

San Antonio Winery v. Jiaxing Microrose Trading (9th Cir. - Nov. 14, 2022)

You'll care about this opinion if you litigate federal unfair competition cases and want to sue a foreign entity that has a trademark in the United States that you're challenging as deceptive. On an issue that's spit the district courts in the Ninth Circuit, it holds that you're allowed to serve the defendants through their registered agent in the Trademark Office rather than going through the (total pain in the butt) Hague Convention.

By contrast, if you're not one of those people, you might be at least marginally interested in footnote five of the opinion. Background: the foreign entity to be served defaulted in the district court and didn't appear in the Court of Appeals either, so there's no one to argue against the position that the Ninth Circuit panel ultimately takes today. So Judge Holly Thomas drops the following footnote:

"Jiaxing did not enter an appearance in this matter and therefore has not provided briefing in opposition to San Antonio’s position. Our review of the novel issue presented in this case has been aided in significant part by the district courts that have previously considered it, and, in particular, by the Eastern District of California’s decision in Gallo, 430 F. Supp. 2d 1064. Although we part ways with the Gallo court’s conclusion that Section 1051(e) applies only in administrative proceedings, we are grateful for its thorough analysis, which enabled us to fully consider both sides of this issue. In a similar vein, we are thankful for the helpful briefing and argument we received from the United States as amicus curiae."

Which is certainly nice.

One final (unrelated). Which I think I mentioned a half-dozen years or so ago in a different case, but which raised its head yet again in this opinion.

The last footnote of the opinion reads: "Costs on appeal are awarded to San Antonio." Doesn't it seem weird/unfair that costs on appeal should be awarded against a party who, as here, (1) didn't argue in favor of the position taken sua sponte by the district court below (indeed, who didn't even appear), and (2) also didn't argue in favor of that position on appeal?

I get that prevailing parties are ordinarily entitled to their costs, and the loser has to pay. That's the price of being on the wrong side of a lawsuit; e.g., doing something wrong.

But it still seems strange that you gotta pay costs for an appeal that you didn't initiate and didn't even fight -- and that you gotta pay 'em even even in the even you prevail on the merits on remand. Right?

Monday, November 14, 2022

In re Marriage of Blake and Langer (Cal. Ct. App. - Nov. 10, 2022)

I'm not sure why parties and lawyers repeatedly try to get out of sanctions orders through voluntary dismissals and then arguing that the court "lost" jurisdiction to sanction them given the dismissal. That argument pretty much never works, and rightfully so. It doesn't work here either.

As an aside, the opinion is also a reminder to be super careful when sending out emails; in particular, to make sure that your message doesn't inadvertently include an incriminating e-mail chain. For example, the email here mistakenly included a message on the chain from the father of one of the parties -- himself a trust and estate lawyer in New York -- that said: "I have reviewed [your residence trust] and believe I have a method of indefinitely tying your house up in litigation against [Langer], IN NEW YORK. . . My action may well not succeed, but it would have a very good chance of tying up your house for years—and deterring any would-be buyer who would be off-put 100% from buying a house in litigation, especially in NY.”

Yeah. That's not something you want the court (or the other side) to see. 'Cause it pretty much makes clear that the motivation for the filing of your action wasn't necessarily to actually win.

And that'll get you in trouble. On multiple fronts.

Wednesday, November 09, 2022

Zhang v. Dentons US LLP (Cal. Ct. App. - Nov. 9, 2022)

Typically, one reads opinions from the Court of Appeal because the legal doctrines are interesting, or the public policy consequences are significant, or things like that. But, on occasion, there's an element of "law porn" in which you're just fascinated by the underlying legal personalities.

Like here.

The doctrinal dispute is about the intersection between wrongful termination claims, mandatory contractual arbitration, and choice-of-arbitral-forum provisions (e.g., requiring arbitration outside of California for disputes involving California employees). All that's important, of course. But in terms of sheer interest -- for lawyers, at least -- it's all subsidiary to the "inside peek" one gets into some BigLaw partner-level machinations.

According to the Court of Appeal, at least, here's what happens:

"Petitioner Jinshu “John” Zhang was an equity partner in Dentons U.S. LLP (real party in interest or Dentons), a major law firm with offices throughout the United States. . . . In 2018, petitioner brought a client to Dentons whom the firm agreed to represent for a fee contingent on the outcome. Petitioner was principally responsible for the matter and resolved it successfully in February 2021, entitling Dentons to the contingency fee. The fee could not be collected until a later date when certain transfer restrictions were to be removed and Dentons’s exact percentages would become ascertainable. The fee is substantial; according to petitioner’s complaint, when collected “it will be the single biggest contingency fee Dentons has ever earned.”

Petitioner, whose compensation was determined by the Dentons board, believed the contingency fee “presented an opportunity to negotiate his compensation as it related to the Contingency Fee,” but Dentons’s chief executive officer, Michael McNamara, told him he would have to wait to negotiate his compensation until the Dentons board undertook its annual compensation review.

Matters thereafter deteriorated. Dentons asserts petitioner demanded that Dentons guarantee him 90 percent of the contingency fee and place him on the board, and when Dentons declined, petitioner “covertly went to the Client and negotiated an agreement to receive personally 85% of the proceeds of the contingency fee award, contrary to the terms of the Partnership Agreement.” Petitioner asserts that at the end of April 2021, Mr. McNamara and Edward Reich, Dentons’s general counsel, arranged the creation of a forgery, purporting to be a letter from the client’s representative directing a third party to transfer certain client-held securities worth tens of millions of dollars directly to Dentons. Petitioner reported the alleged forgery to the board on April 30, 2021, demanding Mr. McNamara’s immediate termination.

On May 5, 2021, the Dentons board voted unanimously to terminate petitioner’s status as a partner for cause, and initiated an arbitration the same day, alleging petitioner breached the partnership agreement and his fiduciary duty of loyalty to Dentons."

Fascinating stuff, eh?

As you might expect, litigation between the parties inevitably followed. With competing proceedings in New York and California, a trip to the Court of Appeal, an OSC from the California Supreme Court, and (today) the latest installment, in which the Court of Appeal reaffirms its prior conclusion notwithstanding the OSC.

Needless to say, the dispute isn't over. Not by a longshot.

And I'm confident we'll see more about this in the California appellate tribunals in due course.

Monday, November 07, 2022

Taska v. The RealReal, Inc. (Cal. Ct. App. - Nov. 4, 2022)

I was trying to figure out why the company filed this appeal, which it lost. And I think, maybe, that I have at least a possible (partial?) explanation.

It's a fairly typical employment action. The company, The RealReal, hired a VP of Human Resources, Elizabeth Taska, whom it then fired around a year later. Ms. Taska then sued the company for wrongful termination and retaliation. There was an arbitration provision in the employment contract, and the case goes to arbitration, which the employer wins.

So far, totally routine.

In the final arbitration briefs, both sides say they're going to move for costs and attorney's fees if they win, which is not unusual. In the arbitrator's award, after finding for the company, the arbitrator expressly holds that the company is not entitled to a fee award. So end of story. 

Again, not unusual.

What's a little weird is that, a couple weeks later, the company asks the arbitrator to reconsider, and asks for fees again. At which point the arbitrator changes their mind, and awards the employer around $73,000 in fees, holding that "“the repeated and substantial failure of [Ms. Taska] to testify truthfully” rendered the conduct of the arbitration “unreasonable, meritless, frivolous and vexatious . . . .”"

Both sides then file in the trial court -- the employer to confirm the award, and Ms. Taska to strike the fee award -- and the trial court agrees with Ms. Taska, holding that the trial court lost jurisdiction to award the fees because it was over 30 days after the original final award (e.g., the one that denied fees).

Which, by the way, is totally right. That's what the law says. That's clearly the right result. As the Court of Appeal unanimously concludes.

What confused me is why the employer filed the appeal. First off, the trial court was right, so it's a waste of time. But also, look, it's an employment dispute. Who cares if there's a $73,000 fee award against the plaintiff? She's not likely to pay it anyway? Why waste the money chasing it? (Especially when, as here, you're likely to lose the appeal anyway -- and might well spend more in legal fees on the appeal even if you won.)

Now, I get it, sometimes you just hate the plaintiff, or are vindictive, or want to "strike back" and make their lives miserable. Sometimes litigation isn't just an economic transaction. Sometimes it's personal.

So I figured that something along those lines might well be happening here.

Still, a little unusual.

But then I did a quick Google search to see if there was anything about this case, or the plainttff, in the news.

I'm not saying that it's necessarily the same person. But the plaintiff's name here is Elizabeth Taska, and the litigation was in San Francisco, and there's quite a lot of press about a "Beth Taska" up there, largely as the result of an allegedly racist incident at a public park in San Francisco, which you can read about in substantial detail (as well as see the video) here.

An incident which, perhaps coincidentally (?), occurred on July 4, 2020, which was exactly five days after the arbitrator's corrected final award in the litigation awarding $73,000 in fees against her for her alleged "repeated and substantial failure to testify truthfully" in the arbitration.

There's nothing in the briefs (not surprisingly) that mentions the racist incident, and the name of the alleged perpetrator there ("Beth Taska") and the plaintiff here ("Elizabeth Taska") is slightly different. But they both (1) appear to be in San Francisco, (2) are listed as senior human resource officers, and (3) at least here, "Beth Taska" is listed as a former employee of The RealReal (the defendant here) as well as Topa Equities and 24 Hour Fitness, which lots of news stories mention were the former employers of the alleged racist.

Again, I'm not saying that it's necessarily the same person. But if it was the same person, that might be one possible explanation for why The RealReal was perhaps, in part, fairly aggressive (IMHO) about trying to claw back the $73,000 fee award against Ms. Taska that the trial court had (rightly) vacated.

Because it was more than a little bit miffed, and wanted to impose some extra pain. Even if it lost.

Friday, November 04, 2022

Amiodarone Cases (Cal. Ct. App. - Nov. 4, 2022)

Apparently Amiodarone is a drug developed in Belgium in the 1960s to treat angina, but that has a ton of really bad side effects, "including pulmonary fibrosis, blindness, thyroid cancer, and death." Presumably for that reason, it wasn't approved for use in the United States.

Notwithstanding that fact, in the 1970s, doctors in the U.S. started importing the drug from other countries as a "drug of last resort" for patients suffering from "life-threatening ventricular fibrillation" -- the "v-fib" from all those emergency medical shows on television. Again, the drug wasn't approved in the U.S., but so be it; potential side effects don't mean much when you're heart is literally about to stop beating in the next minute or so.

Eventually, however, the foreign manufacturers of the drug threatened to cut off the supply of the thing to U.S. patients unless the FDA approved the drug. Which is a pretty nifty trick, eh? The FDA relents and approves the drug as a last-ditch treatment for ventricular fibrillation.

But then, once it's in the U.S., doctors start prescribing the drug for other things as well: "off-label" use. The biggest off-label use seems to be for treatment of "atrial fibrillation, a more common—and less serious—condition than ventricular fibrillation. The manufacturer of the drug -- Wyeth -- had previously gotten into tons of trouble with the FDA for false advertising for pushing doctors to use amiodarone in situations far beyond the whole "last resort" purpose for which it was approved. 

Fast forward to the present day, in which a large number of patients injured by the drug sue the drug manufacturer for the side affects they suffered while taking the drug for a-fib, an off-label use.

The Court of Appeal affirms the dismissal of this lawsuit at the pleading stage. Sure, doctors definitely prescribe the thing for a-fib, likely when they shouldn't. And, sure, the manufacturer has clearly overly aggressively falsely advertised the drug in the past.

But the Court of Appeal holds that there's no possible linkage between the two. That there's no proof at the pleading stage that anything that the manufacturer did caused the particular doctors at issue to prescribe the drug to their patients.

Which somewhat leads to the question: Well, then, how exactly did the drug become so popular for this particularly dangerous off-label use? Is it really so radically implausible to think that the manufacturer's pushing of the drug had something to do with this popularity?

I mean, yeah, a lot of the really bad stuff that the manufacturer did -- or at least the stuff that they were caught doing by the press -- occurred a decade ago, so there's definitely a remoteness issue. But I don't tend to think that off-label use of little-known drugs suddenly becomes popular completely randomly. And when a manufacturer has a history of falsely pumping up a particular drug, it doesn't seem totally crazy to me to think that the manufacturer might have something to do with the current off-label craze for that particular (dangerous) drug.

But the Court of Appeal hold that that's not good enough. Even at the pleading stage. There's not enough here to even permit discovery.

An interesting story about how the whole drug approval and off-label processes work. As well as how manufacturers can avoid liability for even the dangerous use of their products.