Galaza v. Mayorkas (9th. Cir. - Feb. 28, 2023)

Today's per curiam decision from the Ninth Circuit seems clearly correct.

Congress said that the TSA can establish qualifications for TSA screeners at airports and fire them "notwithstanding any other provision of law." Plaintiff says that the TSA violated the Rehabilitation Act when it fired her because she was disabled.

Sorry. The statute means what it says. That's why the Ninth Circuit affirms the dismissal of plaintiff's lawsuit, and why all the other circuits to address the issue have gone the exact same way.

I'll nonetheless note for the record that this statutory breadth seems profoundly unjust. Plaintiff says she can't do the "normal" TSA jobs since she's disabled, but is nonetheless fully capable of working in one of those "cushy" TSA positions as an "exit lane" or "bypass door" monitor.. Seems right to me. If we indeed have such positions (and we do), I see no reason why someone in a wheelchair or whatever can't staff those things perfectly competently.

Make UC A Good Neighbor v. Regents (Cal. Ct. App. - Feb. 24, 2023)

It's quite possible that my reaction to the first two pages of this opinion would be different were I to live in the same location as its author, Justice Burns.

The opinion begins with the type of thing that you sometimes see in high-profile and/or political cases: an express reminder that the justices are deciding the litigation based on law, not on other things like personal policy preferences or the like. Here's Justice Burns' take, which also (helpfully) describes what the lawsuit is about:

"This case concerns the adequacy of an environmental impact report, or EIR, for (1) the long range development plan for the University of California, Berkeley through the 2036-2037 academic year; and (2) the university’s immediate plan to build student housing on the current site of People’s Park, a historic landmark and the well-known locus of political activity and protest. Appellants Make UC a Good Neighbor and The People’s Park Historic District Advocacy Group (collectively, Good Neighbor) challenge the EIR’s sufficiency as to both. 

As we will explain, we are unpersuaded by Good Neighbor’s contention that the EIR was required to analyze an alternative to the long range development plan that would limit student enrollment. We also reject Good Neighbor’s view that the EIR improperly restricted the geographic scope of the plan to the campus and nearby properties, excluding several more distant properties. Nor did the EIR fail to adequately assess and mitigate environmental impacts related to population growth and displacement of existing residents. 

Two of Good Neighbor’s arguments, however, find more traction. The EIR failed to justify the decision not to consider alternative locations to the People’s Park project. In addition, it failed to assess potential noise impacts from loud student parties in residential neighborhoods near the campus, a longstanding problem that the EIR improperly dismissed as speculative. 

We are, of course, aware of the public interest in this case— the controversy around developing People’s Park, the university’s urgent need for student housing, the town-versus-gown conflicts in Berkeley on noise, displacement, and other issues, and the broader public debate about legal obstacles to housing construction. We do not take sides on policy issues. Our task is limited. We must apply the laws that the Legislature has written to the facts in the record. In each area where the EIR is deficient, the EIR skipped a legal requirement, or the record did not support the EIR’s conclusions, or both. 

Finally, our decision does not require the Regents to abandon the People’s Park project. However, they must return to the trial court and fix the errors in the EIR. As explained more below, whether CEQA will require further changes to the project depends on how the Regents choose to proceed and the results of the analyses they conduct. Ultimately, CEQA allows an agency to approve a project, even if the project will cause significant environmental harm, if the agency discloses the harm and makes required findings. The point of an EIR is to inform decisionmakers and the public about the environmental consequences of a project before approving it."

Those last two paragraphs, as I said, are a standard gambit. They're also 100% true, and I have zero problem whatsoever with Justice Burns' articulation of this reality.

It nonetheless struck me as somewhat unusual for a case like this one. It's not a fight about elections or a vicious criminal or the like. It's an EIR. Is it an EIR about a fairly well-known area, with a fair degree of history (People's Park)? Sure. But still. It's an EIR. These things do not typically result in a massive degree of public attention or vitriol. It's not a case about abortion, or the death penalty, or anything like that. It's instead a case where I would normally think the assumption of the reader is that the justices at issue are simply applying the law as their fairly and reasonably think it requires.

But as I said at the outlet, maybe my reaction in that regard is because I live in San Diego rather than San Francisco. It might well be the case -- I don't know for sure -- that up north, any legal fight about the fate of People's Park is necessarily (or easily) viewed as a political fight. One that people might well get crazy upset about, or about which someone might well confront you at a coffee shop or dinner party or the like.

Hence a real or perceived need to remind everyone at the outset that judges apply laws, not their own policy preferences.

I can't think offhand of a similar type of "political" EIR case that might happen down in SoCal. Even if there was a lawsuit about demolishing Mann's Chinese Theatre, or the Hollywood sign, or something like that, I doubt that people would view it as similarly politically tinged. Maybe offshore oil drilling might qualify; not sure one way or the other about that.

That's not to say that their the northern part of Cali has it right and the southern part has it wrong, or vice-versa. We're just perhaps a tiny bit different on that score. Hence the opening paragraphs of this opinion.

Wood v. Kaiser Foundation Hosp. (Cal. Ct. App. - Feb. 24, 2023)

I love -- love, love, love -- the opening paragraph of this opinion. It strikes the perfect tone to me; a sense of sincere inquiry, modesty, respect, etc. Qualities that every good judge (and opinion) should have. Plus its last sentence is a tiny bit low-key funny. (Super low-key.)

The opening paragraph reads:

"The judiciary’s responsibility to interpret statutes often places courts in the position of trying to decide how the Legislature would have resolved an issue we strongly suspect it never actually considered. We endeavor, as best we can, to be prognosticators. Sometimes, however, our role in statutory interpretation is more that of a detective. The Legislature included a provision or used a particular term in a statute, and it is our job to uncover what it had in mind when it employed those words. In this case we function largely as detectives, hopefully more like Sherlock Holmes than Inspector Clouseau."

The next couple of paragraphs also articulate a super-clear guide to the underlying issue and what the rest of the opinion is about. Which, again, I love. Here are those two paragraphs:

"California’s Healthy Workplaces, Healthy Families Act of 2014 (the Act) (Labor Code,1 § 245 et seq.) generally requires employers to provide eligible employees with at least three paid sick days per year. The Labor Commissioner and the Attorney General are charged with enforcing this law. Violators may be assessed compensatory as well as liquidated damages, plus civil penalties. (§ 248.5.)

The last clause of section 248.5, subdivision (e) is the focus of this appeal. It provides that “any person or entity enforcing this article on behalf of the public as provided for under applicable state law shall, upon prevailing, be entitled only to equitable, injunctive, or restitutionary relief . . . .” (Ibid.) It would seem fairly obvious that the Legislature had something specific in mind when it used the phrase, “enforcing this article on behalf of the public as provided for under applicable state law.” It was envisioning some kind of enforcement action. But what was it? In particular, did the Legislature mean to include—and thus restrict—actions by aggrieved employees to recover civil penalties under the Labor Code Private Attorney General Act of 2004 (PAGA) (§ 2698 et seq.) as defendant Kaiser Foundation Hospitals (Kaiser) contends? Or instead, as plaintiff Ana Wood argues, did the Legislature have in mind an entirely different statutory scheme, the Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.)?"

Awesome. A beautiful way to begin an opinion, in my view.

The rest of the opinion discusses the merits. Ultimately deciding in favor of the appellant and reversing the contrary decision of the trial court. Notwithstanding the fact that every single federal district court has decided the issue the same way it was decided below.

So, at a minimum, the opinion is an important one. Particularly given the contemporary prevalence of PAGA suits in Our Great State.

On this score, maybe Justice Dato's opinion is right, and maybe it's wrong. Reasonable minds might differ on this score; indeed, undeniably do.

Regardless, the way that Justice Dato both frames the issue and then resolves it is really well done, in my view. So kudos for that. Great job.

And, honestly, I feel a little bad about saying that, since it comes literally on the heels of me giving big kudos to Justice Dato for yet another opinion. So I'm kinda piling on.

But respect deserves respect. And I didn't find out that it was Justice Dato until the very end, at which point I'd already come to the conclusion that the opinion was a darn good one.

So I shan't backtrack. Really well-written. Twice over.

People v. Kenney (Cal. Ct. App. - Feb. 22, 2023)

I was going to talk a bit about a Court of Appeal opinion today that I didn't particularly like, even though I think it's probably right on the merits. I was a little bit hesitant to do so, however, because my critiques are more about style and manner of presentation than doctrine, and I understand that different people have different preferences in that regard. Some people are happy with short, concise opinions that read (to me) more as advocacy summaries than as opinions; others take a contrary view. So in a way, I'd have just been talking about matters of style.

Fortunately, this opinion came out today as well. As for that one, I can say unreservedly that (1) I like Justice Dato's style and tone, but (2) have some definite thoughts about the merits as well.

It's another opinion where I totally get where the Court of Appeal is coming from. A mother gets a DVRO (domestic violence restraining order) against her (allegedly) very-drug-abusing 29-year old son who still lives with her. She tells him about the order and he ultimately moves out, but then comes back one day and hops into his (former) bedroom and won't leave. The cops are called and tell him he's got to get the heck out of the house because there's a restraining order against him, but he won't leave, and won't open the door to his bedroom either. Here's the exchange (which, in a way, is kind of a funny one):

“[Germain:] There’s a restraining order on file, Christopher. 

[Maldonado:] You’re not allowed to be here, buddy. 

[Kenney:] I’m not allowed to be in my own house? 

[Germain:] Correct. 

[Maldonado:] Yes, you are absolutely correct. So come out. 

[Kenney:] (Unintelligible) in my own fucking house. You’re tripping, bro. 

[Maldonado:] No, we’re not tripping. You’re the one that needs to come out. 

[Kenney:] No, I don’t. This is my fucking house, dog. 

[Maldonado:] You’re not allowed here anymore. 

[Kenney:] This is my house.” . . . 

[Germain:] As of right now you’re not going to be under arrest, we’re gonna serve you with the restraining order. 

[Kenney:] This is bullshit. Fuck you guys. 

[Maldonado:] Chris, you’re not allowed to be here. Come on, we’ll talk about it. Serve you with your paperwork and you can get going. 

[Kenney:] Break my fucking door down, dude. This is my fucking house. 

[Germain:] Okay.”

Given that last line, you can probably figure out what happens next. The police bust down the door and arrest Kenney. 

At trial, Kenney's defense is basically that the DVRO wasn't valid because -- and this latter part is clearly factually true -- he hadn't been served with it yet. But the statute says that even an unserved DVRO is nonetheless valid if a law enforcement officer verifies that it exists and orally informs the restrained person of its contents.

There's no doubt that the police didn't serve Kenney with the DVRO, and there's no doubt that they didn't inform him of the entire contents of the DVRO. The question at trial was whether what they told him -- basically, that he had to leave -- was enough, or whether they had to do something else, like tell him the whole thing and/or formally serve him with it. Which, again, they didn't.

Ultimately, the Court of Appeal holds that what the police told him was enough, and hence affirm his conviction.

Two funny -- or at least interesting -- things about that, though.

First, even if the statute is satisfied, does this really comport with the Due Process Clause? Is that really the process that's due? Before today, I don't think I'd ever read a case that held due process satisfied in the case of a formal court order when the defendant never ever received that order. Or that held that an oral statement by a police officer -- a cursory summary, no less -- was good enough.

Justice Dato's opinion doesn't talk about that at all. Maybe because he thinks the answer is clear. Or maybe because the defendant never raised the issue. Still, it seems a fairly radical view of due process, or at least one that I'm definitely not used to seeing, even in the wide plethora of procedural due process cases that I normally read and or teach to my students.

Second, at the very end of the opinion, Justice Dato notes (correctly) that the trial court erred by not sua sponte telling the jury what the proper law was regarding whether the defendant had to be formally served with the DVRO or whether the police officer's oral summary was sufficient. This was an issue of law. Indeed, it was an issue of law that was the entire dispute at trial. Defendant said he had to have been formally served and wasn't. The prosecutor said the police officer's oral summary was enough. This was literally the issue at trial, and yet the trial court didn't instruct on what the right legal rule was.

Indeed, the jury was expressly unclear as to this precise issue, and sent a note to the judge after an hour of deliberations that said: "Does Defendant have to comply if orders were not served or seen by Defendant?” To which the trial court responded: "[T]he court cannot answer your question."

That was error. As the Court of Appeal holds. You have to instruct on the law. You can't just leave that up to the jury.

So that part's clearly right.

But the Court of Appeal simultaneously holds that it was harmless error. Because under the Court of Appeal's view of the law, the officer's oral notice was enough. So, essentially, the defendant was clearly guilty. Hence no harm.

Which is, indeed, entirely how harmless error analysis works.

But doesn't that seem somewhat weird?

The entire trial was about essentially a legal issue. The trial court didn't tell the jury anything at all about that legal issue. And then when it gets to the Court of Appeal, the Court of Appeal says that doesn't matter in the slightest because the defendant was guilty anyway.

Then why even have a trial in the first place?

If the whole point is to let a jury get it right initially, why even have a trial if we're (1) not going to tell the jury anything at all relevant, and essentially just make up a total uneducated guess on what the law is, and then (2) affirm the guy's conviction because we think the law's against him.

It just seems an incredibly extreme version of harmless error analysis. The kind that makes the actual trial meaningless.

Nonetheless, that's pretty much what harmless error review does sometimes.

It's just that this is a pretty extreme example of exactly what that entails. For better or worse.

Anyway, super interesting stuff. In an opinion that's well-written and that I liked reading a lot. Even if it raised some additional issues in my mind that I thought are definitely worth considering.

American Rivers v. American Petroleum Inst. (9th Cir. - Feb. 21, 2023)

It's never a good sign when the caption and official summary of a Ninth Circuit opinion goes on for 13 single-spaced pages. Indeed, the actual opinion itself isn't much longer than that.

Fortunately, I can save you the trouble of reading the whole thing. Just skip to page 14. Judge Friedland there tells you all that you basically need to know about today's holding:

"When a federal regulation is challenged in court, the promulgating agency may ask the court to remand the regulation to the agency for an opportunity to reevaluate it and correct any errors. Courts often grant such voluntary remands without ruling on the lawfulness of the challenged regulation. The question we face today is whether a court granting a voluntary remand may also vacate the regulation without first holding it unlawful, as the district court did here. We hold that courts lack the authority to do so, and we therefore reverse."

Sure, you can wade through the whole thing if you'd like. But that's a very good articulation of the basic deal.

People v. Venable (Cal. Ct. App. - Feb. 17, 2023)

I'm going to have you read today's Court of Appeal opinion exactly the way I read it, even though that'll take slightly more time.

Here's how the opinion begins:

"Bullets fired from a small white car killed one victim and wounded another. Both victims were members or associates of the Westside Projects (Projects) gang. Months later, when the police arrested a known informant for an unrelated offense, he offered to give them information about the shooting. He told the police—and eventually testified— defendant and appellant Travon Rashad Venable, Sr. drove the car used in the shooting and Elgin Johnson was the shooter. Both Venable and Johnson were members of the California Gardens Crips (California Gardens) gang, a rival of the Projects.

A jury found Venable guilty of first degree murder (Pen. Code, § 187, unlabeled statutory citations refer to this code) and attempted murder (§§ 187, 664, subd. (a)). 2 The jury also found true, on each count, a gang enhancement (§ 186.22, subd. (b)) and a gang-related firearm enhancement (§ 12022.53, subds. (d), (e)). In a bifurcated proceeding, after defendant waived a jury trial, the judge found Venable had one prior serious felony conviction (§ 667, subd. (a)) and one “strike” prior (§§ 667, subds. (b)-(i), 1170.12). The judge sentenced Venable to a total of 129 years to life.

On appeal, Venable argued: (1) The trial judge violated his speedy trial rights by repeatedly continuing the trial to accommodate counsel for his then-codefendant Johnson. (2) The trial judge erred by admitting a rap video in which Venable appeared. (3) The trial judge erred by giving CALCRIM No. 315, which required the jury to consider a witness’s level of certainty when evaluating an identification by that witness. (4) The jury found Venable guilty of attempted murder, not willful, deliberate, and premeditated attempted murder. The People conceded this point. (5) The trial judge erred by sentencing Venable on both the firearm enhancements and the gang enhancements. The People conceded this point. (6) Venable is entitled to a remand so the trial judge can consider striking the prior serious felony conviction enhancement under newly enacted legislation. The People conceded this point. (7) Venable is entitled to a retrial for the gang allegations to be tried separately under newly enacted legislation. (8) The gang enhancements and the gang-related firearm enhancements must be reversed because the jury was not instructed in accordance with newly enacted legislation. The People conceded this point. (9) Venable is entitled to a remand for the trial judge to consider reducing the firearm enhancements under newly enacted legislation. The People conceded this point.

We initially found no errors other than those conceded by the People. (People v. Venable (Aug. 22, 2022, E071681) [nonpub. opn].) However, the Supreme Court granted review, transferred the matter back to us, and directed us to vacate our opinion and reconsider the cause in light of the newly effective Evidence Code section 352.2, enacted by Assembly Bill No. 2799 (Stats. 2022, ch. 973) (AB 2799).

Evidence Code section 352.2 requires trial judges to consider specific factors before admitting evidence of a form of creative expression—which explicitly includes rap—in a criminal proceeding to avoid injecting racial bias and improper consideration of criminal propensity. It’s uncontested the trial judge did not consider those additional factors before admitting a rap video in Venable’s trial and that the trial, as a result, didn’t comply with the new requirements for admission. The question is whether these new requirements apply retroactively to cases like Venable’s, which are pending on appeal at the time of their enactment. (In re Estrada (1965) 63 Cal.2d 740 (Estrada).) We conclude . . . "

Given this description, I was supremely confident of how the Court of Appeal would come out. The conviction was affirmed to begin with. It's a gang murder case. The Supreme Court granted review and transferred, but only to see whether a change in evidence rules is retroactive. I was sure that the Court of Appeal was going to hold that evidentiary changes are not retroactive and hence, once again, affirm.

I was wrong.

The Court of Appeal instead unanimously holds that the evidence changes are retroactive and, on that basis, reverses and remand for a new trial.

I'm super surprised. Super. Maybe there are some other cases that hold that changes in evidentiary rules are retroactive. But if there are, I can tell you this much: I don't know about 'em. I'd have thought that the rules of evidence at trial are the relevant rules of evidence, and that if evidence was admissible at the time, then it doesn't become inadmissible simply because the rules of evidence changed after the trial was over.

But the Court of Appeal says here that that's precisely what happens.

It's weird to me. Mind you, I understand the reasoning. As well as the politics and atmospherics. Here, the Legislature changed the Evidence Code to make it harder to introduce rap lyrics at trial. For various reasons: to protect free speech, to avoid prejudice, etc. That's all fine and good; the Legislature can make that call.

But the evidence here was properly admitted under the old rules, which just balanced probative value versus prejudice. Sure, that might come out the other way under the new rules. And it's certainly true that the trial court here didn't evaluate the evidence under the new rules. Because they didn't exist yet.

It just seems weird to me to say that a new trial is required because evidence was inadmissible under new rules that didn't yet exist and that the trial court wasn't required to consider. It'd be one thing if the new rules were constitutional or the like, or necessary for a fair trial. Those it makes sense to hold as retroactive. But that's not the case here. Plenty of trials went forward under the regular old "probative vs. prejudice" balancing test, and we're not reversing any of those results. But for cases on appeal, we say that a new trial's required because an "error" was made that couldn't not have been made since the new rules -- the new balancing test -- didn't yet exist.

Strange, no?

Take a different example. Imagine that certain evidence suddenly becomes inadmissible after a trial is over; say, because the Legislature creates a new privilege (maybe "Patron/Supermarket Cashier"). If a defendant confesses to a cashier and that evidence is admitted at trial, does that conviction get reversed on appeal given the new evidentiary rule? I'd have thought before today that the answer was clearly "No." Even though the new rule was "ameliorative" in the sense that it helped the defendant and was meant to advance appreciable social interests. Under the reasoning of today's opinion, by contrast, the answer seems far less clear, and might well be "Yes."

The retroactivity cases that the Court of Appeal cites here are all cases that make a fair amount of sense to me: that things like the availability of pretrial division and sentencing reductions and the like are all applicable to cases still on appeal. But evidentiary rules just seem to me different. At least when, as here, they're mere Legislative enactments and not constitutionally based or something like that.

Sure, the Legislature could expressly make those new evidentiary rules retroactive if they want. But that's not what happened here. The Legislature said nothing. Given that silence, I'd think that the very strong presumption is that the evidence rules at trial remain the evidence rules on appeal.

But apparently the Court of Appeal thinks otherwise.

Anyway, super interesting result, and one that I definitely didn't expect when I first saw the issue teed up on appeal.

Duarte v. City of Stockton (9th Cir. - Feb. 16, 2023)

You can see why the district court might have gotten this one wrong. In part, anyway.

There's a rule is that you can't file a civil suit against the police for your arrest if you were convicted. Plaintiff pleads nolo contendre ("no contest"), which is essentially the equivalent of a guilty plea. But California allows the trial court to hold pleas in abeyance, which is what the trial court did, and after six months, when the plaintiff had completed the required community service and not violated any laws, the charges were dismissed in the interests of justice.

Does that count as essentially a conviction and hence bar the civil suit?

A couple of circuits have said "Yes." Because basically the required community service and six months of not doing anything wrong was the guy's "sentence". But even more circuits have said "No." It doesn't count as a finding of guilt and sentence because it was was, in fact, not a finding of guilt or sentence. It was a dismissal.

The district court agreed with the couple of "Yes" circuits. The Ninth Circuit agreed with the four circuits that said "No," so reversed.

Fair enough. Split opinions in the Court of Appeals, so the trial court picking what turns out to be the wrong side of this debate is hardly a major slam.

The weird part, however, is the second basis for the Ninth Circuit's reversal.

The district court also dismissed the lawsuit against the City of Stockton on the ground that the city wasn't a "person" subject to Section 1983 liability. But there's an on-point Ninth Circuit decision -- lots of 'em, in fact -- that holds exactly to the contrary. The trial court finds persuasive a concurrence by a single Ninth Circuit judge that says that the rule should be otherwise. But as the panel here notes quite persuasively, a single judge can't overrule Ninth Circuit precedent -- and certainly can't do so merely in a concurrence. 

So how the district court got that one wrong is much less easy to explain.

In re Hunter W. (Cal. Ct. App. - Feb. 15, 2023)

No child is perfect; each has their own challenges. If you have a child, I strongly suspect that there are things that the child has done that make you nervous, or wish you could change, or something like that.

Some children, however, bring bigger challenges than others. So, sometimes, a brief comparison may be helpful. If only to help the parent recognize that, yeah, things could be a lot, lot worse.

So, for example, with Hunter W., down here in San Diego:

"In 2015, Hunter and another minor got into a fight over the purchase of cigarettes. The fight escalated and Hunter, who was 13 years old at the time, told the victim he was going to kill him. Hunter pulled out a knife, stabbed the victim three times, left the knife in the victim, and fled the scene. Two days later, Hunter’s mother brought him to the police station, where Hunter admitted to stabbing the victim . . . As a result of the stabbing, the District Attorney filed a juvenile wardship petition alleging Hunter fell within the court’s jurisdiction under Welfare and Institutions Code section 602.

Before the petition was adjudicated, the District Attorney filed a second petition alleging Hunter had driven without a license (Veh. Code, § 12500, subd. (a)) and under the influence of drugs (id., § 23152, subd. (a)). Hunter had taken his mother’s car and crashed it into a tree. The car caught fire and was destroyed. Hunter told the responding officers at the scene what happened, and admitted he was under the influence of Xanax and marijuana that he obtained illegally."

Yeah. That's a challenge. Especially since Hunter "did not perform well on probation, and after multiple violations . . . the court revoked probation and the parties stipulated to placement in the DJJ. The court then set the maximum term of confinement at seven years."

In short: Being a parent (or kid) is tough, but it could be worse. Much worse. 

 

Attenello v. Basilious (App. Div. Sup. Ct. - Feb. 14, 2023)

Want to be a landlord in California? Think that it'll be fairly straightforward, and that you can rely on the forms the California Association of Realtors provides?

Think again.

SDCCU v. CEFCU (9th Cir. - Feb. 10, 2023)

It's been a slow week. One case today from the Court of Appeal, two opinions yesterday, and none the day before. The Ninth Circuit has been similarly slow; two opinions on Monday and two today, but nothing at all on Tuesday, Wednesday and Thursday.

Unless you're a trademark scholar with a keen Article III focus, I doubt that today's opinion will especially wet your whistle. Nonetheless, to be honest, it's one of the most well-written of the opinions I've read from Judge Bea in quite a while. Definitely worthy of a read-- if only from the limited perspective of how to craft things in a readable and coherent manner -- even if you're not especially fascinated by the subject matter.

As a bonus, it comes to what I think is the correct result. The trial court granted a motion for summary judgment holding that one side didn't infringe the trademark of the other side. Given that fact, there was no reason for a subsequent trial as to whether that trademark was valid. Seems right to me.

Or, as Judge Bea puts it: "After a party obtains declaratory relief which decrees that it is not infringing a trademark, does it retain Article III standing to invalidate that mark? That is the central question presented in these appeals, and we answer it: No."

There are lots of other subsidiary holdings in the opinion as well -- e.g., with respect to whether there was personal jurisdiction -- and all those seem right to me as well. On the whole, 42 single-spaced pages of pretty darn good stuff.

I must admit that the whole underlying enterprise seemed fairly silly to me, however. (Though that's not Judge Bea's fault.) A bank in Illinois (that has some branches of a related bank in the San Francisco area) has a particular trademark -- “CEFCU. NOT A BANK. BETTER." -- and feels like a bank in San Diego had a related trademark ("“IT’S NOT BIG BANK BANKING. IT’S BETTER.”) that's a little to close to theirs. So the Illinois bank tries to cancel the trademark of the San Diego bank, and the San Diego bank sues in federal court in California to declare that it's not infringing the other bank's trademark and that the Illinois' bank's trademark is invalid in any event. [Note: An informed reader points out to me that the parties are both credit unions, which are technically not "banks". True enough. I'll keep the term bank, which I used initially, as (admittedly technically inaccurate) shorthand.]

Mind you: These banks do no compete with each other. But they nonetheless decide to spend a ton -- and I mean, a ton -- of money on federal litigation about this whole thing.

That would most definitely not be my call were I running either bank. Honestly. Such a waste.

There are probably also some questionable strategic choices made in the midst of the litigation as well. For example, the Illinois bank elected not to context the MSJ filed by the San Diego bank that contended that there was no infringement of the other's trademark. Probably the wrong call, or at least a call that one might have wanted to make way earlier in the litigation. Similarly, even after winning its MSJ, at which point it doesn't really have to be worried about being sued at all, the San Diego bank elected to waste tons of money to go to trial to try to establish that the trademark that it didn't infringe was invalid anyway. Again, not a great use of resources. And one that, in any event, gets reversed on appeal anyway, for lack of Article III standing.

Plus there are the various contentions on appeal, including one that Judge Bea describes -- entirely accurately -- as "near-frivolous." Not a good look.

Anyway, there you have it. Money that's largely flushed down the toilet.

Bad for the banks (and their customers). Particularly bad since they're both credit unions, which are (at least in theory) owned by the depositors.

Good for lawyers, though. We're happy to take your money pretty much whenever you'd like.

JPV v. Koetting (Cal. Ct. App. - Feb. 7, 2023)

There's some useful stuff in this opinion about alter ego liability and adding nonparties as judgment debtors, so on the doctrinal front, it's worthy of a read.

As for extra-legal lessons learned, I might suggest that one of them might be that if you're planning on getting together with a partner to make usurious loans to poor people over the Internet, it should perhaps not come as a surprise to you when your partner eventually tries 9allegedly) to steal from you; e.g., by emptying a $1.45 million bank account so you can't collect on your judgment against him.

One's character tends not to change over time, IMHO.

People v. Fernandez (Cal. Ct. App. - Feb. 1, 2023)

I've attempted in vain to think of a legal issue more depressing than the one squarely presented by the competing opinions in this case, which solely involves the following issue:

Was the evidence here sufficient to support an inference that the defendant intended to kill his 13 week old baby when he tortured him?

Everyone admits the baby was (allegedly) killed. Everyone admits that the baby was (allegedly) tortured. The only question is whether the evidence is sufficient, at this stage, to prove that the father intended to kill the baby during the torture that was inflicted upon him.

Justice Raphael, joined by Justice Menetrez, thinks it was. He says (in summary) that "It is rational to infer that a person who, over a few weeks, struck an infant in ways that broke most of his ribs, fractured his skull, wounded his brain recurrently, and induced head-to-toe bruises “could not have been unaware” that death could result from the blows. This is a rational ground for concluding that Fernandez intended to kill Marco when torturing him." (citations omitted)

Justice Ramirez, in dissent, thinks it wasn't. He says (in summary) that although "[t]here is no debate defendant tortured the baby with continuing pain-inducing acts," the "the only act described in evidence [that resulted in the baby's death] was the act of throwing the child onto a bed, after which the child fell or rolled onto the floor," and the fact that the child suffered horrific other injuries didn't establish that there was an intent to kill the baby at the time of those other injuries.

I'll not recount the horrible, horrible injuries to the baby. As I said, they are incredibly depressing. It's a 13-week infant, after all. You can read all about them in the opinion, if you'd like.

But I don't recommend it. It's stuff difficult to forget. (Especially alongside the dissent's comparison to other -- even more egregious cases -- involving other alleged torture-related deaths of infants.)

People v. Cress (Cal. Ct. App. - Feb. 2, 2023)

This amendment says, in its entirety:

"The opinion filed in this matter on January 9, 2023 is modified as follows: On page 1, following “Judith C. Clark, Judge,” strike the sentence in parenthesis that reads, “(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)” Except for this modification, the opinion remains unchanged. This modification does not effect the a change in judgment. CERTIFIED FOR PUBLICATION."

Whoops. Sorry about that, Judge Clark. (Who's not only still on the bench in Riverside, but who was in fact recently elected as the presiding judge over there.)