Wehsener v. Jernigan (Cal. Ct. App. - Dec. 28, 2022)

You don't see many intestate succession disputes in the Court of Appeal. And in reading the facts of this one, it definitely harkens back to a bygone era.

The question is whether Judy is the presumed child of Charles. If she is, then she's entitled to a large portion of the decedent's estate. By contrast, if she's not his child, then that portion goes to one of the decedent's first cousins (Wendy).

The decedent died in 2018 in San Diego. Charles was a resident of Indiana and died in 1993. Judy -- the person who may or may not qualify as Charles' presumed "child" -- was born in 1949. Here are the facts about Judy and Charles to which all the parties have stipulated, and that I suspect do not happen much in the present era (having been replaced by formal structures of foster care, court intervention and the like):

"Judy was born on April 6, 1949. Her biological parents were Dorothy Sue Davenport and Henry Lee Hayden. Judy’s biological mother abandoned her and her biological father when Judy was an infant. Judy lived with her biological father until she was two years old.

When Judy was two years old, Judy’s biological father dropped her off with Charles and [Frances], who were then living in Kentucky, and asked them to babysit. Judy’s biological father never returned. Judy continued to live in the home of Charles and Frances for the duration of her childhood.

When Judy was not more than eleven years old, Charles, Frances, and Judy moved to Indiana. When Charles, Frances, and Judy moved to Indiana, Charles and Frances openly held Judy out to be their daughter. School records from Indiana show that Judy was registered with the last name ‘Bloodgood[,’] and as a child of Charles and Frances. Charles and Frances continued to hold Judy out as their daughter for the remainder of their lifetimes. The Last Will and Testament of Charles E. Bloodgood named Judy as Charles[’s] daughter.

Judy is not Charles[’s] or his wife’s biological child, and there is no evidence she was legally adopted. Thus, any purported relationship between Charles and Judy is based solely upon Charles having taken Judy into his home and having held Judy out as his daughter. Charles and Frances knew that Judy was the biological child of another couple. . . .

Because of his own negative experience in the foster care system, Charles chose not to initiate any action to legally adopt Judy. There is no evidence that there was any legal barrier preventing Charles from legally adopting Judy during his lifetime."

The way child abandonment worked in the 1950s in Kentucky is certainly different than how it currently works in the 2020s in California, eh?

As far as I can tell, though, things worked out fairly well for Judy. She had a daughter of her own, and I presume (and hope) that she was loved by her all-but-adopted parents.

Still; having someone drop off their daughter with you for babysitting and then never return. That's got to be a shock at the time.

P.S. - The Court of Appeal agrees with the trial court that California law applies and that Judy is indeed the presumed child of Charles, hence entitled to recover under intestate succession.

Bishop v. The Bishop's School (Cal. Ct. App. - Dec. 21, 2022)

As a rule, I don't write about appellate cases in which I have some involvement, on the theory that I'm not neutral, and it doesn't add much to have an advocate state whatever position they might have on an appeal that's already been adjudicated. 

Fortunately, even though I know a fair piece about the underlying events, I didn't participate in any of the resulting litigation, so my rule doesn't apply to this opinion published by the Court of Appeal today. Hence my brief words about it.

It's a case down here in San Diego. It involves -- confusingly -- a plaintiff named Chad Bishop ("Bishop") who's suing a secondary school at which he was a teacher called The Bishop's School ("Bishop's"). So it's tough at times for an outsider to necessarily keep the parties straight.

The case involves a salacious tale of a teacher fired for an allegedly flirtatious text exchange with a 19-year old former student. A text exchange that Justice Buchanan helpfully quotes in full. Check it out on pages 3 and 4 of the opinion.

Chad (Bishop) sues the school (Bishop's) for breach of contract, which is fairly straightforward, as well as defamation for telling parents and a newspaper about the circumstances of the firing. The school files an anti-SLAPP motion, which the trial court grants in part, largely striking the defamation claim but leaving the contract claim. The Court of Appeal substantially affirms, but holding that one portion of the claim for defamation (involving Bishop's termination letter) didn't arise out of protected activity.

Justice Buchanan's opinion accurately resolves the appeal, in my view. Seems fairly straightforward and correct to me. Just two points:

First, this shows the strategic downside of bringing defamation claims. Plaintiff's got a just fine claim for breach of contract, and one that survives a demurrer. The claim for defamation is not only weaker, but also invariably will bring an anti-SLAPP motion. Which will either (1) be successful, thus resulting in a waste of time and money on your end, as well as an award of attorney's fees against your client, or (2) fail, but nonetheless still waste your time and money, as well as likely result in an anti-SLAPP appeal that requires the expenditure of further time and money, as well as delays the lawsuit for a year or two while it sits up in the Court of Appeal.

So think deeply before bringing defamation claims, okay? Even if you think they might survive.

Second, I wonder whether Justice Buchanan might want to consider amending the opinion to refer to the 19-year old female student by her initials, rather than her full name. This near-minor sent drunken texts to one of her older male former teachers at I'm certain she regrets and that ultimately resulted in the teacher getting fired and litigation arise. She's not a party to the appeal and probably would rather not have the opinion -- and the full content of her text exchange -- pop up on the first page every time someone searches her name on the Internet. Yes, she's not technically a minor, since this all transpired months after her 18th birthday. (Hence the allegedly large number of margaritas in Mexico that led to the text exchanges.)

But still.

Seems to me the opinion would be just as readable using her initials or her not-so-unusual first name. (Plus it's got all those confusing "Bishop v. Bishop's" in the thing anyway, so it's not like readability is at a premium anyway.)

So think about that.

FULL DISCLOSURE - All my children either graduated from or currently attend the school at issue (Bishop's), and I previously served alongside the author of the opinion (Justice Buchanan) on the board of directors of a nonprofit entity. But while, as I'm said, I'm familiar with the underlying controversy, I have no stake or involvement in the underlying litigation, nor am I close personal friends with any of the participants. (Though my wife tells me that at least one of our children had the plaintiff as a teacher, a fact I did not recall when I was reading the opinion.)

In re Geoffrey S. (Cal. Ct. App. - Dec. 19, 2022)

It's an important issue, and today's split decision by the Court of Appeal cogently identifies the competing positions. Justice Buchanan writes the majority opinion and says:

In Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550 (Kaiser), we held that hearsay evidence is admissible at a hearing on a workplace violence restraining order (WVRO). (Code Civ. Proc., § 527.8.) Other courts have reached the same conclusion for a hearing on a civil harassment restraining order (CHRO). (Code Civ. Proc., § 527.6; see Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728–729 (Duronslet); Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521 (Yost).) 

We must now decide the same question for a hearing on a gun violence restraining order (GVRO) under Penal Code section 18175.1 We hold that hearsay evidence is likewise admissible at a GVRO hearing. We further conclude that the evidence submitted to the trial court was sufficient to establish by clear and convincing evidence that appellant Geoffrey S. posed a significant danger of causing personal injury by gun violence.2 (§ 18175, subd. (b)(1).) Because we reject Geoffrey’s other claims, we affirm the oneyear GVRO issued against him."

Justice Dato, by contrasts, dissents, with the following basic position:

"This case presents a classic question of statutory interpretation. When it enacted the gun violence restraining order (GVRO) statutes in 2014 (Stats. 2014, ch. 872 (Assem. Bill No. 1014)), did the Legislature intend that all forms of hearsay evidence should be admissible without limitation in a noticed hearing seeking a GVRO? The Legislature’s intent with respect to the meaning of a statute is not always crystal clear, and in this instance it might be better characterized as opaque. It is therefore hardly surprising that reasonable judges might disagree. 

There is, however, a more fundamental question that will have much to say about how we ultimately decide what the Legislature intended and what the statutes mean. That is because the Legislature itself has provided a framework within which we are to analyze questions about the admissibility of hearsay. Evidence Code section 1200, subdivision (b) succinctly states the generally applicable rule, “Except as provided by law, hearsay evidence is inadmissible.” The issue we must decide is whether, in the case of GVROs, the Legislature has otherwise “provided by law” for an exception. And to determine if the Legislature intended an exception, we must first understand the general rule. 

The rule against hearsay evidence exists for one overriding and crucial purpose: To make sure results in the courtroom are based on the truth. To expose innocent fibs, outright falsehoods, and all types of fabrications in between, witnesses are ordinarily required to personally appear in court, affirm to tell the truth, and be subject to cross-examination. (See California v. Green (1970) 399 U.S. 149, 158.) Courts have long recognized the importance of cross-examination and its crucial role in ferreting out the truth. (In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [“ ‘Crossexamination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ”].) 

But it is impossible to cross-examine a witness who isn’t there. And in this case, the deputy city attorney who appeared at the hearing merely offered the court San Diego Police Department (Department) reports that memorialized several police contacts with Geoffrey S. at his home over the course of a week in April 2020, near the beginning of the COVID-19 pandemic. In addition to the observations of officers, these reports included statements made by other, sometimes unidentified, persons. They also summarized Facebook posts allegedly made by Geoffrey but did not attach copies. At the same time, the Department’s presentation ignored—or at least significantly downplayed—the numerous factual errors in the psychiatric hospital’s intake report, as well as the fact that the hearing officer who ultimately dismissed the Welfare and Institutions Code section 5150 hold concluded that Geoffrey had “no known history of diagnosis or treatment” for mental illness and “does not have a mental disorder.”

Critically, not a single witness testified at the hearing, not even the officers who authored the reports. The deputy city attorney merely argued that the reports proved by clear and convincing evidence that a one-year GVRO should issue."

Nicely put by both sides, I think.

All that said, this case is from San Diego, and while I won't comment on the doctrinal dispute, I will say that I'm fairly happy that -- at least for a while -- Geoffrey S. won't be allowed to buy any more guns or ammo. (Though the underlying one-year order has apparently expired at this point.) The guy seems to fairly clearly have huge problems, and I say that with full recognition of Justice Dato's point that we're not actually listening to the underlying witnesses, but instead reports that are technically hearsay about what he's allegedly done. Here are some snippets:

"Geoffrey explained to the police that for several weeks, he had been posting on social media about his belief that philanthropist Bill Gates had murdered millions of people. In response, a stranger called him to express his agreement. When Geoffrey asked the person how he got his phone number, the person said it was given to him by God. As a religious person, Geoffrey then invited the person over to his house to talk about their beliefs. The person came over and spent the night. The next day, they talked all day and read Bible verses. The man eventually proclaimed that he was God, got a kitchen knife, and demanded that Geoffrey “ ‘kneel before him.’ ” After Geoffrey complied, the man said, “ ‘I am going to kill you motherfucker.’ ” The man also told Geoffrey he was a “ ‘west coast gangster’ ” and had “been shot and stabbed before.” 

Geoffrey told the police he had “ ‘hunting shotguns’ ” inside his house, but no ammunition. He began talking about his “conspiracy theories” and “distrust of the government.” He explained “his eccentric beliefs about how he didn’t believe the Corona virus was real, how Bill Gates is a murderer and he is trying to vaccinate everyone with ‘nanotechnology’ so they can be tracked by 5G towers” and “claimed he even called the FBI San Diego field office to report what he knew about Bill Gates . . . .”

According to the police reports, “Geoffrey was very animated, agitated and was rambling about a government takeover.” He “believed Bill Gates and the government were using the COVID-19 to scare Americans into receiving a vaccine to infuse trackers” and that “5G cell towers being installed would be used to track everyone with the vaccine.” “Geoffrey would not answer specific questions but would instead go into lengthy rants about various unrelated topics.” He “was exhibiting psychotic and delusional behavior.” “When asked specifically about his quest for ammunitions and his intentions, Geoffrey replied that it was none of our business and quoted his 1st and 2nd amendment rights. Geoffrey became paranoid about where we had received our information and accused us of working with FBI to tap his phone lines. Geoffrey did confirm that he owns several shotguns.” “Geoffrey was aggressive in nature and very confrontational, answering most of our questions with questions and stating we were all stupid. At one point, Geoffrey stood up and began screaming at the top of his lungs, ‘I’m buying ammo and you should too!’ ” . . . . 

The defense exhibits included a psychiatric admission evaluation of Geoffrey and medication noncompliance summary, both prepared by Dr. Samuel Etchie at Alvarado Parkway Institute (Alvarado). The psychiatric admission evaluation (signed April 22, 2020) described Geoffrey’s “delusional beliefs” and his admission to the hospital’s psychiatric intensive care unit after Geoffrey’s pastor and a friend had called 911 to express their concerns about his mental state and social media postings. Geoffrey repeated to Dr. Etchie his theories about Bill Gates and the COVID-19 vaccine. He said: “They have this vaccine and if they are going to force us to take this vaccine then I need to buy ammo and ammunitions to defend myself against the government and protect my family . . . .” Geoffrey also told Dr. Etchie that his pastor, a friend, and his father all “told lies against [him].” 

Dr. Etchie stated: “Upon arrival at this facility . . . , the patient remained with significant risk of danger to others as a result of welldeveloped and well-organized delusional thought processes about the government and various governmental agencies . . . and the philanthropist, Bill Gates, and the current COVID-19 vaccine that is not even available at this time.” “Inpatient psychiatric admission is imperative at this time due to the imminent risk of harm to others and the patient’s ability and wherewithal to purchase arms and ammunitions and to prevent harm to the patient and to others.” “The patient . . . remains with significant risk of harm to others, especially, ‘people from the government and people connected with the Bill Gates vaccine and the FBI.’ ” Dr. Etchie diagnosed Geoffrey with “[b]ipolar affective disorder, mania, severe with psychotic features.” 

In the medication noncompliance summary (signed May 4, 2020), Dr. Etchie quoted Geoffrey as follows: “Everybody’s against me - my deacon, my pastor, my father, my friend, the police, yourself, the nurses and staff in this hospital because of only one reason. I want to defend my Second Amendment rights to defend myself because of all the crazy things that have been started and have been sponsored by Bill and Melinda Gates Foundation to infect millions of Americans with bad vaccine in the name of treating this viral pandemic.” Geoffrey denied any mental illness and refused to take any medication."

Yikes. Geoffrey has some problems, no?

Oh, one more thing. Geoffrey's not homeless or anything. He's got neighbors, Facebook friends, a pastor, etc.

And he's a member of the Ohio bar.

CFPB v. Aria (9th Cir. - Dec. 12, 2022)

The factual recitation in Judge Tallman's opinion speaks for itself:

"[Armond] Aria was the founder, owner, CEO, and registered agent of the now-defunct Global Financial Support, Inc. (Global). Operating under the names “College Financial Advisory” and “Student Financial Resource Center,” Global mailed millions of solicitations to current and prospective college students from 2011 to 2016. The solicitation packets contained a letter, an information sheet, a Demographic Form, and a return envelope.

The letters featured official-looking letterhead with college-themed seals and an arbitrary filing deadline. The wording varied from year to year, but the letters generally advised students to avoid taking out loans until they had applied to all of the available “free” financial aid programs. The letters asked students and their parents to disclose basic demographic information in the Demographic Form and pay Global a $59 to $78 “processing” fee. In exchange, the letters vaguely promised to enroll the students in a financial aid program. Meanwhile, the Demographic Form promised “to provide as many targeted financial aid opportunities as possible to each and every student.” In fine print footnotes, the letters disclaimed any affiliation with governmental or educational institutions.

Minus refunds, Global received $4,738,028 in fees from at least 76,000 students. The only product or service that students received was a booklet. Each booklet contained a welcome memo that provided a general overview of student financial aid with advice on topics ranging from federal student loans to the tax implications of attending college. The booklets also contained sections on federal and state financial aid programs. Although Global included some tailored information based on students’ responses to the Demographic Form, Aria admitted the information was compiled “at a group level” and he “did not individually tailor [the booklets] to” any individual student. For example, students sometimes received the contact information for all 50 states’ financial aid agencies—regardless of the students’ residency—and were directed to Google search their home state’s financial aid opportunities. Additionally, Aria asked students to list their interest in playing collegiate sports, but the booklets provided only a generic “list of scholarships available to student athletes regardless of sport.”

Hundreds of complaints were submitted to various state, federal, and nonprofit consumer watchdog entities, which triggered the federal consumer fraud investigation that led to this proceeding."

The Consumer Financial Protection Bureau sued Aria, claiming -- entirely accurately -- that Aria's stuff was deceptive. The district court granted summary judgment to the CFPB, Aria appealed, and the Ninth Circuit affirmed.

In my view, Aria -- who resides, I believe, down here in San Diego -- should feel super lucky that the only thing he lost from this scheme was a civil restitution order for millions of dollars. I would also want the guy put in prison, honestly; a fate he apparently escaped.

In re D.N. (Cal. Supreme Court - Dec. 12, 2022)

It's not that I disagree with today's opinion from the California Supreme Court. I don't. Which is good, since it's unanimous, so if I disagreed, my presumption would typically be that I was the one in the wrong, not the Court.

I instead wonder why the Court granted review of the issue in the first place.

The trial court declared a juvenile offender a ward of the court and ordered that he live at home under certain probation conditions. The trial court told the probation office in advance that if there were any potential future probation violations (e.g., not showing up at school on occasion, etc.), there was an easy solution, stating: "“Probation is authorized to offer the minor up to 50 hours of community service, or up to a cumulative total of 10 days on the community service work program as an option to work off alleged probation violations.”

The trial court thought that was fine. The Court of Appeal thought that was fine. The California Supreme Court thought that was fine; unanimously, no less. And as far as I can tell, there's no split in the Court of Appeal nor any judge or justice, anywhere, who thought that this type of deal isn't fine.

So why not just leave the Court of Appeal's decision standing? What's the downside? What's the need to take the case up and reaffirm that, yep, the Court of Appeal got this one right? Is this really one of the most important matters on the California Supreme Court's docket? (I'd have thought not, not only given the correct answer to the question, but also the fact that the issue is somewhat fact-specific, and not at all uniformly imposed in all -- or nearly all -- juvenile probation cases.)

Plus, I'm even more convinced of the Court's holding than perhaps even the Court itself. I totally agree that it's not an unconstitutional delegation of power because, as the Court explains, it's just an offer. If the juvenile doesn't want to accept the offer, they can refuse it, and go to court and fight the allegation (or request a different condition/penalty). It's just the trial court telling the probation office in advance that if it wants to make such an offer, that'd be totally fine with the trial court.

Makes total sense.

Indeed, to me, the whole thing's a nothingburger because the probation office already has that power even absent the trial court's express invitation. As the Court explains, it's just an offer; an offer that the probation office can make and that, if accepted, would result in the probation office not bringing up the probation violation in court; e.g., if you do 50 hours of community service, we'll ignore the fact that you skipped class for two weeks. But, in my view, the probation office totally has that ability already, as part and parcel of its executive discretion. It's the one who decides in the first place whether to bring alleged violations to the trial court anyway. If it doesn't feel like it, or doesn't feel they're significant, it can just ignore 'em. As I'm sure it does every single day; e.g., when a juvenile skips a particular class. And if the probation office can ignore it altogether, then it can do the lesser as well; agree to ignore the thing if the juvenile agrees to do something special. The greater includes the lesser.

I'm sure that, all the time, the probation office tells juveniles things like "Okay, I'll ignore you skipping class this one time if you agree not to do it again." And, if it felt like it, it could surely say things like "Look, I know you shoplifted a candy bar from that one store, and that's wrong, so go back and pay for it and apologize to the shopkeeper and we'll look the other way and not bring a probation violation." No different here, right? The probation office already could say "You know what, you've done something wrong, and I could violate you if I wanted to, but I'll make you a deal; volunteer in a soup kitchen for 50 hours and I'll decide not to bring the thing to court."

The fact that the trial court "authorized" the probation office to do that, in my view, essentially means nothing. It grants them zero powers over the powers the probation office already possesses. Which in turn means there's definitely no delegation.

Really, I think that all the trial court's doing here is giving its informal blessing to the type of deal that it thinks would be potentially equitable in the future. A deal that's already within the power of the two parties (the probation office and the juvenile) to informally make on their own, but this way, there's a tiny bit more "formality" to the deal. A legally meaningless formality, mind you, but one that might set the parties on a particular path.

That's perfectly fine. For a plethora of reasons, including but not limited to the ones articulated by the California Supreme Court.

Diaz-Rodriguez v. Garland (9th Cir. - Dec. 8, 2022)

We're in the middle of exam season here at the law school, so I read this Ninth Circuit opinion, I thought it'd be a great basis for a law school final exam. (Of a sort, anyway.)

So, to take you back to those halcyon days of law school, I thought I'd turn it into one and let whomever wishes take the exam.

Here goes:

"A federal statute provides that people can be deported ("removed") from the United States if they have committed a crime of 'child abuse, child neglect, or child abandonment.' Defendant is found guilty in state court of the crime of 'child endangerment' for driving while drunk while his five-year old son was in the vehicle.

The case reaches the Ninth Circuit, which eventually hears the case en banc. Five judges agree that Defendant can't be deported because child endangerment is different than child abuse or neglect. Four judges agree the Defendant can be deported because the terms 'child abuse' and 'child neglect' are ambiguous can rationally be classified as including endangerment. Two judges agree that Defendant can be deported because child endangerment categorically constitutes child abuse or neglect.

Question One: You're a district court judge. Which opinion, if any, states the law of the Ninth Circuit?

Question Two: You're on the Supreme Court. Which opinion, if any, is correct?

For further reference, if you wish, you may read the underlying opinions in their entirety, which are attached herewith. They collectively total 169 pages.

You have 90 minutes to write your answer. Begin."

People v. Carabajal (Cal. Ct. App. - Dec. 7, 2022)

The Court of Appeal holds that it's not a sufficient basis for a new trial, at least given the trial court's evidentiary findings in the present case. You nonetheless gotta admit that it's not a good look when the juror here (1) is listening to a prosecution for sexual assault, (2) hearing the testimony of alleged minor victim, (3) in a matter being prosecuted by the Solano County District Attorney's office, decides, in the middle of that trial (right before jury deliberations), to . . . apply for a job with the Solano County District Attorney's Office. As a victim advocate in criminal cases, no less.

You can see why the defendant is quite a bit upset when he discovers this fact several months after the jury convicts him. Especially since, yeah, the juror got the job. (After convicting him.)

You do have to wonder about at least implied or subconscious bias in such a setting, no? I mean, do you think the District Attorney's Office is really going to be excited about hiring someone who just days prior voted to acquit a defendant in a criminal case that your own office was prosecuting? Especially as a victim advocate, given that she just voted to acquit someone whom your office believed sexually assaulted multiple minors? 

And do you think the juror, at some level, at least, isn't going to be cognizant of that fact? That voting to acquit might well not be the best possible move she could make if she wanted to be hired for the job to which she applied literally hours previously?

Interesting stuff.

U.S. v. Reiche (9th Cir. - Dec. 5, 2022)

On first glance, this opinion from earlier today seems totally right. Ellen Reiche wants to take "direct action" to protest the use of fossil fuels, so she and a colleague go out in the dead of night to stop an incoming train carrying a load of crude oil. She doesn't tip the train over or rob it or anything like that; instead, she uses a simple little trick called "shunting."

Which sounds fancy, and I definitely hadn't heard of the technique before today. But really, it's quite simple. As a safety measure, trains use electricity to monitor if there's another train already on the track ahead. The railroad sends a super low current down the track, and if it hits the metal wheels of a train as they pass over a particular very small separation in the track, the metal wheels of the train complete the circuit, at which point the railroad knows there's a train already there.

Essentially, once you know this, all you have to do to "fake" another train being already on the track -- hence stopping any actual train traffic before that point -- is to clip a set of wires on both sides of the gap. Now the railroad thinks there's a train already on the track, so the actual trains behind it will stop.

Pretty smart.

Though not super smart. First of all, it only delays the actual trains a tiny little bit; the signal tells the railroad that there's an alleged train already on the tracks, and where, and the railroad knows there's not supposed to be a train there, so quickly sends out someone to look at the track, at which point they'll see (1) no actual train, and (2) the wires clipped to the track. So only a tiny delay. Second, there are often motion sensors in high-traffic areas, like this one. So they pick up Ms. Reiche and her confederate super quickly; like, literally within minutes, while they're still on the tracks.

Hence the federal conviction for interfering with a railroad.

All makes sense.

The underlying offense gives Ms. Reiche a base offense level of 9, but she gets 9 extra points added -- resulting in a sentence of a year in federal prison -- because her conduct "recklessly endangered the safety of a mass transportation vehicle." She says she didn't know that, but the district court disagreed, and the Ninth Circuit affirms.

Like I said, on first glance, the opinion in this regard makes facial sense. Judge Lee writes:

"Reiche’s actions . . . were obviously reckless and risky. It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it. . . . Indeed, it is a common trope even in cartoons and comics that a speeding train cannot stop quickly and may derail in trying to do so. And common sense underscores the danger of having a speeding vehicle stop suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to stop cars. Perhaps the car could safely come to a stop—but any reasonable person would recognize that this is a risky thing to do because the car, for example, may careen off the road or spin out of control. 

Yet Reiche planned to suddenly stop a speeding freight train carrying millions of gallons of crude oil, as it passed through a residential neighborhood. Reiche might be correct that the public does not know about the mechanics of shunting. And Reiche herself might not have understood the exact science of a shunt’s interaction with the train’s signaling system, even after studying materials teaching her how to make and install a shunt. But Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train. Simply stated, a reasonable person would be immediately aware of the obvious risks of this conduct. The district court thus did not err in finding that the “obviousness of [the] risk” meant that Reiche was subjectively aware of the risk presented by her conduct. Harrington, 785 F.3d at 1304."

Totally correct, right?

That's what I thought upon first reading it.

But is it really?

Judge Lee seems to simply take it for granted that what Ms. Reiche did would cause the train to stop suddenly. He says it innumerable times: "sudden stop," "stop quickly," "stop suddenly," "suddenly stop a speeding freight train," etc. But as far as I can tell, nowhere in the opinion does it ever explain why the stopping of a train from a shunt needs to be -- much less invariably is -- sudden.

From what little I know about trains -- consisting largely (if not exclusively) from being an occasional passenger on them -- when a train learns that there's another train on the track ahead, it gets a signal to that effect, and comes to a stop. But, at least in my experience, that signal comes WAY WAY WAY in advance, miles and miles before the train actually has to stop. I've been on LOTS of trains that have had to come to a stop because (as the conductor announced) "there's a train on the tracks ahead." In none of those settings did the engineer slam on the brakes, or make the train stop suddenly, or anything of the like. There was plenty of time, the engineer slowly slowed the train down, we stopped for a while well in advance of the other train before moving on, blah blah blah. No problem at all.

Now, I'm not saying that's always the case if there's a train ahead -- or (as here) a false signal of a train on the tracks ahead. If, for example, the shunt was placed immediately in front of an oncoming train, so the engineer suddenly sees a flashing light that says "Whoa, train 500 feet ahead!", well then, yeah, you gotta jam on the brakes, and that's super dangerous for all the reasons Judge Lee sets forth at length.

But here's the rub; there's nothing in the opinion -- anywhere -- that suggests that shunting causes the type of latter type of braking ("sudden" and incredibly dangerous) as opposed to the former (gradual and totally safe). Moreover, on first principles, I'd think that unless the shunt is placed in front of an actively oncoming train -- which doesn't seem to be the case here, and would presumably be fairly rare -- then the braking would be gradual, just like usual (e.g., when there actually are trains present). No?

Plus, recall, the government here had to prove knowledge of the dangers. I'm not sure that the danger even existed, much less that Ms. Reiche in fact knew about it. Judge Lee says that "Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train: because "[s]imply stated, a reasonable person would be immediately aware of the obvious risks of this conduct." Maybe I'm not a reasonable person, but I think I am, and at least based on my "common man" understanding of how trains work, I think I'm exactly the type of reasonable person who would not be "immediately aware" that shunting would likely (much less necessarily" result in someone "suddenly thro[ing] the brakes on a moving freight train" as opposed to slowly slowing down until the alleged obstruction (potentially many miles away) was eventually removed.

One last thing. Precedent. Based on what you know, which of the following is more dangerous; i.e., more likely to kill someone:

(1) Shunting a train in the manner Ms. Reiche did, or

(2) Pointing a laser at the cockpit of an aircraft flying at two thousand feet?

'Cause the Ninth Circuit has already held that a recklessness enhancement isn't available for the latter, and yet that seems at least arguably a fair piece more "obviously" dangerous than the former. No there too?

Were there evidence that a train was rapidly approaching (or even close) to the shunt, and that Ms. Reiche knew it, yep, I agree, obviously reckless, 'cause that'd require slamming on the brakes. But it seems quite unlikely (statistically) that a train would just so happen to be super close at the moment you placed the shunt and hence created the "train ahead" signal, and the mere possibility of that fact -- like the mere possibility that a pilot might be blinded by a laser from 2000 feet away -- doesn't seem to me to necessarily equate to recklessness.

Indeed, if your goal was to stop a freight train carrying oil, I'd put the shunt as far as possible away, so the train had to (1) slow down well in advance, (2) stop far away (e.g. at the nearest train "red light" generated by the shunt, and (3) sit there for a long time while someone travelled all the way to where the shunt was placed. That seems like it'd cause a lot more delay that putting a shunt right in front of a train, causing it to temporarily slam on the brakes and then slide up to a location in which the engineer could see that there was not, in fact, a train on the tracks.

But maybe that's just me.

In re G.Z. (Cal. Ct. App. - Nov. 30, 2022)

I share what I perceive to be Justice Stratton's unease regarding this case. Yes, the 10-month old infant had some injuries -- current and past subdural hematomas -- that were hard to explain. Mother says he fell out of the bed and once fell while walking. But the doctors think there might well be more to it than that, and suspect that the kid might be repeatedly beaten. So DCFS gets involved.

Ultimately, Mother, which previously had total custody of the kid (the father was out of the picture), gets 50/50 custody with Father, and things actually end up quite well. No more injuries. No more doctor visits. The child now has two parents involved in his life, so the matter ends up quite differently than a lot of these cases.

But Mother says that DCFS should never have gotten involved in the first place; that there was not sufficient evidence at all that the child's injuries were from beatings as opposed to something else.

The Court of Appeal agrees.

I think that I probably read the facts in somewhat the same way that Justice Stratton does. It does seem like the evidence of abuse is fairly slim. There are no witnesses, of course, but that's fairly typical. And, unlike some other alleged abuse cases, Mother seems like she's acting exactly how you'd expect a parent to act when her kid is vomiting all the time. Concerned, etc. Plus there's nothing disastrous at the home or anything like that once DCFS inspects the house.

So, overall, were I the trial judge, I might well conclude that DCFS hadn't established abuse by a preponderance of the evidence, which is what the standard is here.

But here's the rub:

We're not the trial court.

The trial court was there. It heard all the evidence. It concluded that the infant's injuries were the result of abuse, not something else.

That factual finding is entitled to a fair degree of deference.

Is such a finding unreviewable? Of course not. Sometimes, yeah, there's insufficient evidence, and the Court of Appeal accordingly rightly reverses the decision below.

But here, the trial court's finding has a decent amount of common sense behind it. Summarized aptly by the trial court's statement that, in its view:

"[T]he court has [a] child that has had multiple subdural hematomas, multiple bleeds while in the custody of the Mother, and since the child has been in the custody of the Father [and] since they’ve been sharing custody and they have a parenting plan, there hasn’t been any new injuries. . . . Mother does not have a reasonable explanation, while this child is in her sole custody, continued to have brain bleeds, continued to have subdural hematomas with multiple falls. . . . It’s just an ongoing pattern. Mother does something. Child gets hurt. Mother doesn’t do something. Child gets hurt. Multiple falls and this child gets hurt.”

Yeah. That's tolerable circumstantial evidence that the injuries might be from abuse or neglect, no?

The Court of Appeal, by contrast, seizes on the evidence from the DCFS's doctors to hold that there's insufficient evidence. Justice Stratton summarizes this testimony as follows:

"Regarding G.Z.’s older/chronic subdural hematoma, Dr. Imagawa opined the MRI brain findings of increased subarachnoid space “may be related to [G.Z.’s] developmental course, or may be the sequelae of previous head trauma; however, based on the available information it is difficult to differentiate which is more likely.” (Italics added.) Dr. Imagawa opined it possible the MRI brain findings of increased subarachnoid space “might put [G.Z.] at some increased risk to sustain subdural hemorrhage from more minor trauma.” (Second italics added.) She concluded that non-accidental/inflicted trauma as the cause of G.Z.’s older subdural hematoma “cannot be excluded.”"

The Court of Appeal then says:

"Dr. Imagawa essentially concluded G.Z.’s subdural hematomas may or may not be caused by trauma, and that she cannot conclusively rule it out. It is not Mother’s burden however, to exclude non-accidental inflicted trauma as a possible cause of G.Z.’s injuries. It is DCFS’s burden to prove by a preponderance of the evidence that non-accidental trauma was the cause of injury. Because Dr. Imagawa could not categorically establish the cause of the older/chronic subdural hematoma, she stated she could not rule out nonaccidental trauma. Lack of conclusive evidence does not equate to evidence of neglect proven by a preponderance. The burden is not on Mother to disprove what DCFS had failed to prove in the first place."

Okay. I get all that.

But I think this may overstate a bit the DCFS's evidentiary burden, as well as the overall posture of the case. Yes, the DCFS's expert never said that G.Z.'s injuries were definitely caused by abuse. But she did opine "that intracranial injuries such as subdural hematomas “in otherwise healthy infants/children from causes other than trauma are rare.”" Now, "rare" definitely doesn't mean "never," and if this were a case in which abuse had to be proven beyond a reasonable doubt -- or by clear and convincing evidence -- I would agree that the testimony comes far short.

But it's not. It's a preponderance of the evidence test. And the trial court, which heard all the evidence, decided that the injuries were more likely than not from abuse. She was the one who heard the experts testify live. She's the one who heard Mother's testimony on the stand and was in the best position to judge her credibility, and how she looked when she attempted to explain how G.Z. allegedly fell from the bed onto pillows (which the doctors testified would not have caused the injuries that G.Z. suffered).

And then there's the matter of the circumstantial evidence. When the infant is in Mother's care, there are consistent and repeated injuries, of the same type. But those suddenly stop once the child is with Father or Mother's visits are supervised.

That's some evidence, no?

Maybe, were I the trial court, I'd have nonetheless come to the conclusion that, even though abuse might be the cause, it wasn't more likely than not.

But I could potentially see a trial court rationally coming to a contrary conclusion based on the entirety of the evidence below.

Even though an expert couldn't categorically rule out all alternative explanations for the child's injuries.

So do I see why the Court of Appeal comes out the way it does? Sure. I somewhat had the same reaction, to be honest. (At least given the evidence as presented in the opinion.)

But still. There's a standard of review. And that's the tough part for me here.

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.

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.

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?

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.

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.

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.

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.

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.

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.