Wednesday, May 31, 2023

Estate of Strickland v. Nevada County (9th Cir. - May 31, 2023)

You could definitely begin today's Ninth Circuit opinion the way Judge Bumatay does:

"When someone points a gun at a law enforcement officer, the Constitution “undoubtedly entitles the officer to respond with deadly force.” George v. Morris, 736 F.3d 829, 838 (9th Cir. 2013). But what if the person points a replica gun that the officer believes is real? In this case, we must examine whether it was objectively reasonable for officers to believe a black toy airsoft rifle pointed in their direction presented an immediate threat justifying the use of deadly force. Based on the facts here, we say yes."

Or, perhaps, one could have begun the opinion this way instead:

"We've repeatedly held in multiple qualified immunity cases that there's a genuine issue of material fact that requires resolution by the common sense and experience of twelve jurors as to whether it's reasonable for police officers to shoot and kill someone who's carrying a fake replica weapon. In this case, we must examine whether it was objectively reasonable for police officers to shoot and kill a homeless man whom they knew from prior interactions with him was mentally ill, was carrying an plastic (fake) airsoft rifle with a conspicuous orange tip, who told the officers "It's a BB gun" and pointed to the orange tip, and who smacked the fake rifle with his hand to make a plastic-sounding sound to prove that it was fake. Base on the facts here, we say no."

Nationwide Ins. Co. v. Tipton (Cal. Ct. App. - May 26, 2023)

I'm no criminal mastermind, but when your house mysteriously burns down and you feel like engaging in insurance fraud by faking the value of the property inside the home, I'm pretty sure that you shouldn't tell the insurance company that one of the things burned in the fire was a painting (1) that you never owned, (2) that's been hanging in the New York Museum of Modern Art for 50+ years, and (3) that's amongst the most recognizable paintings in the entire world.

Not too hard to catch that one.

Tuesday, May 30, 2023

In re Van Houten (Cal. Ct. App. - May 30, 2023)

Today's state habeas opinion is 58 pages long. That's fairly lengthy. But you'd probably expect as much when the Court of Appeal (over a dissent) is releasing on parole a member of the Manson family, Leslie Van Houten.

You probably want to write a fairly detailed opinion in that one, no? If only because (1) lots of people are going to read it (or at least hear about it), and (2) people are definitely going to mention the thing to you during the occasional cocktail parties and the like.

I won't recount the details of the various Manson murders, of which you're probably at least already dimly aware. Suffice it to say that Leslie Van Houten was an active -- and infamous -- participant. At this point, she's been in prison for over a half a century. The Court of Appeal concludes that's long enough; that she's no longer a danger.

It's not surprising in the slightest that (1) the parole board ultimately found her suitable for parole, and (2) the governor reversed that decision -- as he's done every single time she's been found eligible. In today's opinion and dissent, no one mentions the following fact. But everyone knows full well that there's no way in hell that a governor who -- like Newsom -- wants to eventually become President of the United States is going to sign off on granting parole to someone as infamous as Ms. Van Houten.

Justice Rothschild dissents from Justice Bendix's opinion. She thinks there's at least a "modicum" of evidence that supports Justice Newsom's opinion.

But the majority votes otherwise. And I doubt that the California Supreme Court will decide to grant review.

So this 73-year old woman is likely to, in fact, get out of prison relatively soon.

Wednesday, May 24, 2023

RAR2 Villa Marina Center v. County of Los Angeles (Cal. Ct. App. - May 23, 2023)

In the first sentence of the opinion, Justice Feuer describes it as a "cautionary tale" and mentions the result as potentially "unfair" (i.e., "Unfair as it may seem . . . .). But to tell you the truth, nothing at all about this strikes me as unfair at all, and I'm super glad the case come out this way.

A company buys a shopping mall for $100 million. The Los Angeles County assessor's office later values the property for tax purposes at $94 million. The company thinks it's worth less, so files an appeal, and submits a lowball estimate saying that the shopping mall's only worth $48 million. The assessor's office conducts an investigation and prepares an appraisal report demonstrating that the property's actually worth $126 million, so includes that appraisal and lets the company know that at the appeal, it's going to say that the property's value is $112 million -- $14 million less than the property is actually worth, but more than the assessor's initial $94 million valuation. The assessor also sends the company three different letters that say that at the hearing, they're going to shoot for $112 million -- i.e., to tax the property at $14 million less than it's actually worth, but still more than what the assessor initially thought the property was worth.

At which point the company say: "Whoa, Nelly. Forget it. I'm fine with the original $94 million figure. Cancel the hearing." But the assessor's office says: "Nope. You made us do all this work. We now know your property's worth $112 million -- actually, $126 million, but we're being totally nice to you -- so that's what we're going to tax it on. Sorry." And at the hearing, the Board adopts the $112 million figure as an accurate valuation of the property.

That's totally and completely 100% fine with me. I see nothing whatsoever "unfair" about it, either as a facial matter or as matter of statutory interpretation. As Justice Feuer's opinion correctly holds, the rules t issue say that the assessor can "introduce new evidence of full cash value of a parcel of property at the hearing" with the sole caveat that if that full cash value is "a higher assessed value than he placed on the roll, he shall, at least 10 days prior to the hearing, inform the applicant of the higher assessed value and the evidence proposed to be introduced and he may thereafter introduce such evidence at the hearing." The LA assessor did that here. Repeatedly.

I'm more than fine with that. That rule's no different than in regular criminal or civil appeals. If you file an appeal, and the other side lets you know that they're filing a cross-appeal to do you even dirtier than what the trial court did, you can't just withdraw your own appeal and go back to where things were before. 

You pays yer money and you takes yer chances. Nothing wrong about that at all.

Tuesday, May 23, 2023

Cassirer v. Thyssen-Bornemisza Collection Foundation (9th Cir. - May 22, 2023)

I'm somewhat sympathetic to the points that Judge Bea makes in his dissent. Some of them, anyway.

The case involves a long-running dispute over who owns a piece of Nazi-looted art; in particular, Camille Pissarro’s Rue Saint-HonorĂ© in the Afternoon. The painting's worth $50 million or so, and the parties have been fighting in federal court now for nearly two decades, with multiple appeals up and down the federal system (including the Supreme Court) about what statute of limitations applies and whether California or federal law governs that issue.

At this point in the litigation, it is now clear that California choice of law rules apply, but the disputed issue is whether, pursuant to those rules, a California court would apply its own statute of limitations or those of Spain. That requires application of California's complicated "comparative interest" test, and the parties vociferously dispute how that test should come out in the present case.

So the Ninth Circuit panel votes to certify this question to the California Supreme Court. To which Judge Bea dissents, saying that it is clear (at least in his mind) that Spanish law should apply and thus no need to certify.

I'm not persuaded that the proper resolution of this issue is, in fact, clear. It actually seems super hard to me, notwithstanding Judge Bea's lengthy articulation of why he thinks it's a simple case. I also don't think that Judge Bea's correct that the delay resulting from certification -- these things almost invariably take a year or two to play out -- warrants declining certification here. The case is, at this point, in the final stages of its resolution, and it's already taken quite a long time to get here. To me, the parties can easily wait a little while longer to make sure that we get this final -- likely dispositive -- question right. Especially since we're talking about a painting that's 100+ years old, its original (as well as alleged successor) owners have long since met their reward (their descendants are the ones filing suit), and the painting's being displayed to the public in the interim. Seems to me that the extra little bit of work could easily be worth it.

But what, to me, Judge Bea gets right is that the matter just isn't worth certifying. Yes, it's complicated. But it's largely -- if not exclusively -- a fact-specific dispute, and one that's in an area that doesn't really reverberate across a ton of cases. The parties care deeply whether California has a greater interest in its own statute of limitations in this area rather than Spain, but apart from a few incredibly wealthy museums and art collectors, whether the Spanish or California statute of limitations period applies isn't one that is a core concern for most people. Nor is it one with a ton of disputes in the California Court of Appeal over the content or application of the relevant doctrines. Instead, everyone knows what the rules are. The only question is how they should be applied in this particular -- quite unique, frankly -- setting.

To me, that's not an issue that's really worthy of certification. And when Judge Bea says (in effect) that federal courts should reserve their limited reservoir of certification orders for things that are particularly important, that strikes a chord with me. This is not one of those cases in which I particularly feel like there's a desperate need to get the California Supreme Court to do the federal court's dirty work. It's a fact-specific dispute. Take your shot and see if you can get it right. No unique need to bother the Cal Supremes.

For similar reasons, were I on the California Supreme Court, I'd deny the certification request in this one. Even though I'm almost always on the side of granting such requests when made. In truth, I'm not really sure that Judge Bea is correct that it'll necessarily take the California Supreme Court a ton of time to wade through the certified question, because even though the excepts of record are 2000+ pages, it's pretty straightforward to read the certified questions and related briefs and figure out whether to take or not take a certified question. Probably doesn't take more than a half-day of work.

But at the end of that half day, I'd very likely vote not to accept the case, and to let the federal court apply the relevant California choice of law principles on its own. Federal courts do that literally every single day. No reason they can't do it in this one as well.

Hopefully correctly.

Monday, May 22, 2023

People v. Kolla's, Inc. (Cal. Supreme Ct. - May 22, 2023)

A default judgment gets entered against a defendant, and since it's a default judgment, no one showed up to represent the defendant. The trial court entered the default, but trimmed the recovery somewhat based on its view of what the statute required.

The plaintiff then appealed. Again, since it's a default, no one showed up to represent the defendant on appeal. The Court of Appeal, partially reversed, based upon its interpretation of the relevant statute.

The California Supreme Court then granted review.

Now, in that tribunal, we're not willing to simply let one side argue the case without someone representing the contrary position. The defendant in this case remains massively uninterested in the dispute; it's an old run-down nightclub in Lake Forest that's been out of business for almost a decade, so no one cares about (or is going to pay) any judgment in any event. 

So the California Supreme Court appoints someone to argue the defendant's position. For free. Here, it appoints Christopher Hu, an attorney at Horvitz & Leavy. Who loses 7-0, but on the upside, gets not only recognized in the text of the opinion, but also thanked for his service. Not bad.

I'll mention that it's fairly rare for an associate at a law firm -- which Mr. Hu is -- to be pulled up to argue a case in the California Supreme Court. Now, it probably helps in this regard that Mr. Hu was formerly the President of the Stanford Law Review, so I'm sure the justices were rightly confident that he'd do a great job.

It probably also helps, just a little, that he's a former law clerk to Justice Liu. Who wrote the opinion.

Anyway, hat's off to Chris Hu. Well done. Truly.

(Notwithstanding the crushing defeat.)

People v. Govan (Cal. Ct. App. - May 22, 2023)

I have no problem with this 67-page opinion, which (among other things) holds that it was okay to receive the jury's verdict during the COVID-19 pandemic without the defendant being present when the defendant had COVID-19, was quarantined in jail, and wouldn't be out of quarantine and able to be transported to court for at least two weeks. That's a sufficient reason to depart from the requirement that the defendant be physically present at all stages of a trial, particularly when there's nothing that the defendant could have accomplished by being there at that point.

I just want to add, however, that this result is okay (in my view) only if you're not a textualist. The California Constitution says very clearly that criminal defendants have the right to be "personally present" in court. Full stop. No exceptions. So if you think that unambiguous text is dispositive, there you have it. You have to be willing to be consistent, and suck up the consequences.

Friday, May 19, 2023

Friedenberg v. Lane County (9th Cir. - May 19, 2023)

If you're especially interested in arcane procedural issues regarding what exactly you have to plead in order to asset removal under a particular (relatively uncommon) federal statute, the jurisdictional fight between the majority and dissent in this opinion might interest you. Check it out in the opinion itself.

By contrast, if you're interested in far more pedestrian factual details about why this lawsuit was filed in the first place, I can summarize those for you quite succinctly:

"In March 2015, Michael Bryant (“Bryant”) was convicted of criminal mischief and criminal trespass in the Springfield City Municipal Court in Oregon. Bryant suffers from schizophrenia and bipolar disorder with serious symptoms of psychosis. The court, as a condition of his probation, referred Bryant to a Jail Diversion Program in Lane County, Oregon, which allows mentally ill persons convicted of crimes to avoid incarceration if they comply with a mental health treatment plan. The court ordered Bryant to report to LCMH for treatment and to “follow all directives of LCMH.” . . .

In March 2015, Bryant started his treatment with LCMH as required by the court’s order. Plaintiffs allege, however, that from roughly March 2015 to November 2015, Bryant repeatedly violated his probation by refusing to take his prescribed medication and missing medical appointments without reason. Plaintiffs contend that despite Bryant’s repeated failures to comply with his treatment plan, no one at LCMH reported his violations to the court.

On November 15, 2015, Bryant had a psychotic breakdown, attacked his parents with a baseball bat, killed his father, and seriously injured his mother. Bryant also killed the family dog and set the family home on fire. Bryant then took the family’s SUV and drove to Springfield, Oregon, where he ran over and killed pedestrian Richard Bates. After killing Bates, Bryant drove to Eugene, Oregon, where he ran over pedestrians Lorre and Marc Sanford. Marc Sanford died from his injuries and Lorre Sanford was severely injured."

Oof. Not good. 

Thursday, May 18, 2023

Center for Biological Diversity v. USFWS (9th Cir. - May 17, 2023)

Jaguars -- the animal, not the vehicle -- used to be in the United States, but we killed them all. There are still 600 or so jaguars in the Santa Rita mountains of Northwest Mexico, and sometimes, they roam into the United States. They're definitely there; someone shot and killed one there in 1965, and we've taken pictures of others there as recently as 2012 and 2013. (There have been other confirmed photographs of jaguars in the United States more recently that aren't mentioned in the opinion, but whatever.) That said, it's pretty much demonstrably true that jaguars don't currently live and breed here; we've historically made sure of that.

The question at issue in this opinion is whether it should stay that way. The Rosemont Copper Company wants to build a big copper mine and copper processing facilities in the Santa Rita mountains in Arizona. But the U.S. Fish and Wildlife Service has designated that area as a critical habitat for the jaguar, and it's likely that Rosemont's proposed copper mine and associated processing facilities wouldn't exactly be all that inviting to jaguars. But the U.S. Fish and Wildlife service nonetheless approve Rosemont's proposed development of the area. 

At which point an environmental group (the Center for Biological Diversity) filed a lawsuit to stop the project, and Rosemont filed a cross-claim saying that the jaguar shouldn't even be protected in the first place.. The district court found largely in favor of the environmental group, the losers appealed to the Ninth Circuit, and in a split opinion, the Trump and Bush appointees (Judges Forrest and Ikuta) found in favor of Rosemont and said that the jaguar shouldn't be protected at all, whereas the Biden appointee (Judge Holly Thomas) thought that the jaguar should be protected but that a remand was required to evaluated the potential impacts of the copper mine.

Here's the (potential) upside of the opinion: We get another copper mine in the United States. Here's the (potential) downside: We're almost certainly not getting jaguars back. Pretty much ever.

But, hey, There are 600 left in Mexico. Plus some others deep in the Amazon, if you can find 'em before we try to deforest the whole thing. So no biggie.

Tuesday, May 16, 2023

Alliance for the Wild Rockies v. Petrick (9th Cir. - May 16, 2023)

Usually, when you want to log and burn thousands of acres of forest, you've got to do an environmental analysis under the National Environmental Policy Act (NEPA) to make sure that you're not, you know, killing species and stuff like that. The United States Forest Service granted a timber permit for doing just that way up in the Idaho panhandle -- that strip of land way up north near Canada. But the Forest Service said that it didn't need to comply with NEPA because there's an exception in the statute for forest fire prevention efforts -- allegedly like this one -- that are set in a "wildlife-urban interface."

I was fairly surprised to learn that Bonner County, Idaho, allegedly qualifies as a "wildlife-urban interface." To my (admittedly not especially informed) mind, there's very little, if anything, about extreme northern Idaho that would qualify as remotely "urban". Wildlife? Sure. Urban? Uh, no.

But maybe I just don't know northern Idaho well enough, right?

So I look up Bonner County. It's got a population of roughly 47,000 people. Not exactly a megalopolis, to be sure. Those 47,000 people are spread out over 1,919 square miles. Which means there's a population density of 25 people per square mile. 

That's not exactly urban. By contrast, Fresno has 4,700 people per square mile; San Diego has 4,450. Even Bishop (for those of you ever passing by on the way to or from Las Vegas) has a density of over 2,000 per square mile. So 25 per square mile? That's not much.

But, hey, maybe there's a dense "urban" core somewhere up in northern Idaho that's surrounded by forest that would justify an exception under NEPA, even though Bonner County as a whole seems totally rural.

So I look up the two Idaho communities that the opinion says might be close enough to the logging area to qualify as a "wildlife-urban interface" under the statute: Nordman and Lamb Creek.

Nordman has a bustling population of . . . 138 people. That doesn't exactly sound urban. Interestingly, the median age of the population of Nordman is 60 years old, which seems rare. The number of families with children in Nordman is . . . zero. And every single person there is either married (96%) or widowed (4%).

As for Lamb Creek, I don't even know. There's not even much about it I can find online. It's not a census-designated area. Which would seem rare for an "urban" location, no?

Anyway, the district court thought that the wildlife-urban interface categorical exemption from NEPA didn't apply, so required the Forest Service to comply with the statute.

The Ninth Circuit today reverses and remands.

To me (and, I think, the district court), if Nordman and Lamb Creek in way northern Idaho can qualify as a "wildlife-urban interface," then pretty much anything can, and those words don't have anywhere near their ordinary meaning, nor any real constraint at all on the ability of local communities to grant themselves exceptions from major environmental statutes. That's somewhat worrisome. At least to me.

Monday, May 15, 2023

People v. Portillo (Cal. Ct. App. - May 15, 2023)

Brothers Jose and Orlando Portillo were caught red-handed at 1:30 a.m. stealing 15 boxes of adjustable dumbbells from a warehouse in the City of Industry. For some inexplicable reason, there wasn't a plea bargain or guilty plea, and at trial, they were convicted of grand theft and sentenced to formal probation (after 180 days in jail).

For grand theft, the value of the stolen property needs to be $950 or more. There's no real dispute that each box of adjustable dumbbells goes for $300 or so at WalMart or $500 or so on Amazon, so we all know full well that the value of the stolen 15 boxes was well over the $950 limit. But Mssrs. Portillo claim that at the trial, the only evidence of this fact came from nonadmissible hearsay, when the warehouse manager testified at trial that these were the prices he saw when he looked up the dumbbells online.

Resulting, today, in a 45-page opinion that an evidence professor would drool over, in which Justice Feuer thinks that the testimony was admissible nonhearsay for one reason, whereas Justice Segal believes that it is admissible nonhearsay for a different reason. Both reasons involving incredibly detailed and esoteric inquiries into not only what constitutes hearsay, but also the different alleged testimonial purposes of the evidence at issue here.

Which is all well and good. I like sophisticated thought. Even where, as here, everyone ultimately agrees on the outcome -- one which certainly isn't unjust in any global sense (since, in truth, the Portillo brothers were clearly guilty), and doesn't have especially severe consequences for even the Portillos in any event. I suspect they didn't serve that much actual time at all.

Still, it's an issue, and matters, so it's go to be resolved. As it is today.

In an opinion that's lots and lots of fancy analysis for something that a regular old person might well think is silly. Since, after all, everyone and their mother would know that, yeah, if you steal 15 boxes of a thing that's listed on Amazon for $500 a box, you've pretty much obviously stolen something worth $950 or more.

Friday, May 12, 2023

Roberts v. Springfield Utility Board (9th Cir. - May 12, 2023)

I have no qualms with either the district court's or the Ninth Circuit's opinion here. It doesn't violate the First Amendment to instruct someone not to contact any witnesses about the pending investigation into that person's alleged work misconduct regarding that investigation. Seems entirely right.

I was nonetheless struck by the penny ante nature of the alleged workplace misconduct here.

Todd Roberts' employer lets people take unpaid time off, but says they need to make every effort to clear such absences in advance. Makes sense. One day, Mr. Roberts says he's going to miss work because he has some kid stuff to do. But it turns out that he was just taking a day off and hanging out on the Oregon coast.

Okay. That violates the policy. The guy clearly needs a good talking to. Clearly he doesn't get paid for the day, and maybe, if you're somewhat mean, you suspend him for a week, and maybe even tell him that if he does it again, the penalty will be more severe. It seems from the briefs that no one's arguing anything other than it's this guy's first time making up an excuse to take a day off. And it's not like there's anything that's super important happening that particular day, or that the guy's work involves something mission critical or anything like that.

But, no. The guy's employer puts the guy on paid administrative leave for three months while it hires two lawyers to conduct an investigation into the alleged excuse, and then fires the guy once the investigation concludes (seemingly correctly) that the guy was just hanging out rather than dealing with his kid's soccer registration or the like.

Seems harsh, no?

I mean, if it's okay for the guy to take the day off work to sign up his kids for soccer and stuff like that, it doesn't seem all that significant that the guy was actually taking the day off to go fishing (or whatever). If the guy's taking too many days off, tell him to stop. If he's not, leave him be.

That's not a First Amendment issue or anything. It just seems like part of not being a jerk of an employer.


Wednesday, May 10, 2023

Collins v. Waters (Cal. Ct. App. - May 10, 2023)

Let me just say at the outset: I have one really big question for Justice Wiley after reading this opinion from earlier today. More on that in a second.

The opinion is about a defamation lawsuit that Joe Collins brought against Maxine Waters. Mr. Collins ran against Ms. Waters for a seat in Congress in 2020. (By way of background: Maxine Waters has been in that seat for three decades, and is relatively famous in SoCal. The 2020 election, quite predictably, wasn't close. Ms. Waters got over 70% of the vote, and won easily -- just as she has in each of the elections since 1990.)

During the election, Ms. Waters said that Mr. Collins had been "dishonorably discharged" from the Navy. That wasn't exactly true, or at least, it was somewhat ambiguous. It turns out that Mr. Collins had been discharged from the Navy for "serious misconduct" -- that's what his DD-214 says -- and apparently had been disciplined "for providing alcohol to an underage sailor and for having sex with a service member under his command." (Classy.)

But there are multiple types of military discharges. There's an "honorable discharge" -- the one that the vast majority of service members receive, and the one that the public is most familiar with. Then there are four others, all of which are "less-than-honorable" and starting (in terms of the severity of misconduct) from "general" to "other than honorable" to "bad conduct" and then to "dishonorable". It looks like Mr. Collins got the first of these "less-than-honorable" discharges: a general. Which a person who wasn't being particularly precise -- or didn't know the details of the military's separation regime -- might perhaps call a "dishonorable" discharge, but which is technically a couple of levels about a pure "dishonorable".

So, like I said, after losing the election (badly), Mr. Collins sues.

Predictably, Ms. Waters files an anti-SLAPP motion, which the trial court grants. It's crystal clear that the first prong of the anti-SLAPP statute applies, since it's public statement on a public issue, and we surely want electoral discourse to be free and open. The relevant issue is simply whether Mr. Collins can show a probability of success on the merits.

The core problem for Mr. Collins in this regard is that to prevail against a public figure (as here), he's got to have evidence of "actual malice" in order to overcome the constitutional protection for free speech in a case (as here) involving a public figure. That doesn't necessarily mean ill will. But it's at least got to be a case of reckless indifference to the truth. Worse, for Ms. Collins, is that he's got to show this by "clear and convincing evidence." Which means "evidence [] such as to command the unhesitating assent of every reasonable mind."

The trial court held that he didn't have such evidence against Ms. Waters. And without describing in exhaustive detail all the reasons that Ms. Waters might well have reasonably believed that Mr. Collins was, in fact, dishonorably discharged, suffice it to say that there was a lot. (Including, but not limited to, being expressly told that by a Navy lawyer, plus a published federal court opinion involving a lawsuit filed by Mr. Collins that expressly said that Mr. Collins had received a "dishonorable discharge" from the Navy." Pretty powerful evidence, no?)

But here's the best thing in that regard for Mr. Collins. He puts up on his Facebook page a copy of his DD-214. The official document that says why you're discharged. And right on that document, it clearly says that he received a "general" discharge. Sure, the DD-214 also clearly says that the discharge was for "serious misconduct." But if the DD-214 is accurate, and if you know the details about the levels of military discharges, you'd know enough to know that Mr. Collins did not, in fact, technically receive a "dishonorable discharge."

The thing is, though, that Ms. Waters thinks that the DD-214 that Ms. Collins posted on the web was a fake. And, honestly, there's darn good reason for her to think it might be. Because it's crystal clear that reasonable minds might well come to the conclusion that Mr. Collins is, shall we say, occasionally less than fully forthright or trustworthy. Witness, to take just one example, yet another lawsuit filed by Mr. Collins in which he disputed an obligation to pay child support and claimed damages of $100 million, and in which he filed documents showing he had purportedly created a “Royal Family of Collins Trust” into which he had placed assets like his birth certificate—an asset Collins claimed had a value of $100 billion, and which claimed total assets of over $700 billion.

Uh, yeah. If that's the kind of stuff you're filing in court, call me crazy, but I'm not exactly going to take your word for it that the DD-214 that you've posted on Facebook ain't a Photoshop Special.

But Justice Wiley's opinion reverses the trial court. He thinks that reasonable minds might reasonably think that there's "clear and convincing" evidence that Ms. Waters was recklessly indifferent to the truth because she didn't investigate further the alleged validity of the DD-214. That's unambiguously why the opinion comes out the way it does. Here's the money quote from the opinion, one that -- if true -- I think goes a long way in explaining why Justice Wiley's view might perhaps be correct:

"Perhaps the document was a total fake. These days, anyone with skills can alter documents or create them from scratch on a laptop at home. At oral argument, Waters rightly emphasized that software is making it ever easier to concoct screen images that look genuine but are not. 

But official documents can be checked officially. It could only have been to Waters’s electoral advantage to expose Collins’s fabrication, if fabrication it truly was. And the official check was easy to do. That fact—that it would have been easy to check—is in the record and is undisputed."

Okay, after all this, we've finally gotten to the central question I had when I first read the opinion:

Are you sure about that, Justice Wiley?

The opinion repeatedly relies upon ease of checking with which Ms. Waters could have conducted an "official check" of the the validity of the DD-214 posted on the web. Just a few examples: "When you face powerful documentary  evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line." "Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness." "It would have been easy for Waters then to check, but Waters kept repeating the accusation without checking."

I get it. If, indeed, all you have do to check get a DD-214 for someone is to go to the post office or submit a FOIA request or something like that, they yeah, I can see why that might be willful blindness.

But are you sure it's really that easy? Because the opinion nowhere explains how, in fact, you go about getting someone's DD-214, or how "easy" that process is. And then, when I looked up on Mr. Google just how easy it is to get a copy of someone's DD-214, every single hit I looked at expressly says that they're not public documents and you're not allowed to get them. This seems confirmed when I look at the VA's website and the National Archives website as well. The service member or the next of kin can get 'em -- and, presumably, photoshop them if they'd like. But not someone like Ms. Waters.

So I'm not exactly sure that it is, in fact, easy to verify this purportedly official record. And I search in vain in the opinion for evidence that it's true.

Now, Justice Wiley's opinion does say that the fact that it's easy to check "is in the record and is undisputed." Maybe it is. But I went ahead and looked at the Appellant's Opening Brief, which is available online, to find out where Mr. Google was wrong in this regard. And I couldn't even find the word "easy" in the brief at all, much less an actual citation to record evidence. The best I could find in the entire brief was the following sentence: "The official records of the character of a Veteran's military discharge are an official public record or purported official public document, which was available to the general public and known to Respondents." But there's not a citation, or reference to the record, or even anything at all to support this assertion.

I guess it's at least theoretically possible that Mr. Collins at some point filled out an authorization form or something like that and sent it to Ms. Waters that authorized her to pull his DD-214, but if so, I don't see any reference to it anywhere. Or maybe, at least theoretically, there's an argument that Ms. Waters could use her pull as a member of Congress to get the Navy to give her a copy of his DD-214. But if it's illegal for members of the public to pull someone else's DD-214, that's presumably equally true for Ms. Waters as well, particularly if the effort to do so is to assist her reelection efforts! And while California law allows public officials in their official capacities to pull California public records, that wouldn't apply to federal (Navy) records, and a pull presumably wouldn't be in Ms. Waters' official capacity either.

So, again, my question is simply this: Is it really "easy" to verify the DD-214 of someone else? If so, I'd like to learn how. 'Cause that seems a fairly central point of the opinion.

I've got subsidiary questions about the opinion as well; for example, I'm not nearly as confident as Justice Wiley is that calling a less-than-honorable discharge a "dishonorable" discharge isn't a type of nonactionable "technical" misstatement (e.g., like calling someone "convicted" or "guilty" when they actually weren't found guilty at trial), and I'm also not certain that, even with inferences viewed in favor of Mr. Collins, the alleged willful blindness here would satisfy the clear and convincing evidence test such that it would "command the unhesitating assent of every reasonable mind."

But, for now, I'll just stick to the DD-214 thing. Personally, I don't think Mr. Collin's DD-214 was a fake. I think he was, in fact, given a general -- not honorable, but not dishonorable -- discharge. But I think that (1) every reasonable person would fully understand why Ms. Waters might well have entirely reasonably thought that Mr. Collins couldn't be trusted when he said that the DD-214 that he posted on Facebook was accurate, and might instead be altered, and (2) am not confident, based on what I've read both inside and outside the opinion, that it would actually have been super easy for Ms. Waters to check whether the DD-214 was accurate.

So I'd love to learn more. Either (preferably) inside the opinion or outside of it.

Tuesday, May 09, 2023

Clifton Capital Group LLC v. Sharp (9th Cir. - May 9, 2023)

Imagine that you've given a $2 million loan to your friend, Peter, but then he doesn't repay it and files for bankruptcy protection. Peter's got a business, so in the bankruptcy proceedings, Peter promises that he'll eventually pay all of his creditors 100% of what he owes each of them, plus interest, by putting a lien on his business and paying a certain amount of the profits from that business as the money rolls in. If all goes as planned, that should result in you getting your money back.

There have been a few hiccups in the road since then, however. During the heavy COVID-19 years, he didn't pay the amount he promised to pay. Moreover, you're worried. Sure, he'll have enough money to pay you off if his business does as well as expected. But if it makes less money, under the plan, it'll take a very long time for you to get paid. Plus, God forbid, if the business starts losing money, you might not get paid back at all. The plan is good, but like the saying goes, no plan survives contact with the enemy.

One day, you hear that Peter's planning on spending $1 million to go on a round-the-world cruise. You think that's a waste of money and not permitted under the bankruptcy plan. So you object, saying that he shouldn't be allowed to spend his money that way -- money that would otherwise eventually go to you and the other creditors. Peter tells you to shut up because, under the plan, you're going to get paid all that you are owed, so what do you care if he blows $1 million. You respond that you're not nearly as confident as Peter that the plan will inexorably succeed, so would like the $1 million that's sitting around to go to his creditors rather than be wasted, especially since that $1 million might make the difference between full and partial repayment in the event the business starts not throwing off the profits that were originally anticipated.

Do you have Article III standing as a creditor to object to Peter's spending of the $1 million? Do you have sufficient injury in fact?

The Ninth Circuit says: No. Objection dismissed.

I've simplified the facts, but that's the essential basis for the Ninth Circuit's holding. The actual case involves Roscoe's House of Chicken & Waffles in Los Angeles -- a fairly famous eatery.

You can see the arguments both ways on the standing issue. But it's a fairly strict interpretation of injury in fact, I think. If I'm in this setting, I definitely feel aggrieved here, and not just hypothetically or as a matter of speculation. To me, just because you say you'll eventually pay me and have a plan to do so doesn't necessarily make it so. I can still legitimately freak out if you start dissipating your equity.

Which is why, parenthetically, creditors demand an equity "cushion" when they loan you money, and insist that you keep it there. Otherwise, they up the rates.

Monday, May 08, 2023

Campbell v. Kinney (Cal. Ct. App. - May 5, 2023)

Justice Streeter ends this opinion with a fairly lengthy footnote justifying his decision to publish this opinion. I've got no qualms with that. The opinion is a 26-page discourse on the wide variety of frivolous appeals and other misconduct that a vexatious litigant and now-disbarred attorney -- Charles Kinney -- engaged in during an extended period of time. It's a sad, but informative, tale. It was worth the read.

My only countervailing thought, however, was that I'm not sure that Mr. Kinney even deserved the effort of a 26-page opinion that explained at length why his latest appeal was rejected and resulted in sanctions. Typically, I think that litigants are entitled to a fair explanation of why they lost. They devoted time and effort -- often, extensive time and effort -- into making arguments that they thought were persuasive. It's common courtesy, at a minimum, to explain in some detail why those arguments were found lacking.

But not here. The plethora of prior frivolous appeals and vexatious litigation, in my mind, waives the right to have the matter fully explained to you. Rather than writing a 26-page opinion, I might have deliberately written an incredibly concise two-page opinion that rejected quite cursorily Mr. Kinney's appellate claims. Novel or not.

Justice Streeter goes the other way, and writes a lengthy opinion. I've got no problem with that, either. The published opinion is for the public, not for Mr. Kinney.

That's good too.

Thursday, May 04, 2023

Kennedy v. Warren (9th Cir. - May 4, 2023)

Public officials have a First Amendment right to say what they feel. So if Elizabeth Warren wants to write a letter to Amazon asking it not to promote a conspiracy book by Robert F. Kennedy Jr. about COVID-19, she can do so. Her letter doesn't constitute illegal and unconstitutional governmental coercion.

I agree with Judge Watford's opinion -- this isn't even a close call, so the district court was correct to deny Mr. Kennedy's request for a preliminary injunction. Judge Bennett concurs, and thinks the issue is closer than Judge Watford does. But I'm someone who's generally worried about even informal governmental coercion of free speech, and even I see the stark distinction here between, say, a letter from a prosecutor threatening arrest if a store doesn't stop selling a particular book and, here, a letter from a single senator expressing her opinion about a public issue.

Other cases might be close. This one isn't.

Wednesday, May 03, 2023

Young v. Midland Funding LLC (Cal. Ct. App. - May 3, 2023)

There have been slim pickings thus far this week in the Ninth Circuit and the California appellate courts. Maybe later in the week we'll see some blockbusters.

Meanwhile, I did have at least a brief reaction to this opinion from earlier today, even if it's only a reaction to the underlying facts.

It's about a woman who wakes up one day to her employer telling her that her wages are about to be garnished for a $8,500+ judgment that she's never even heard about before. She comes to eventually discover that around a decade earlier, a debt collector had filed suit and obtained a default judgment against her in this amount. She contacted the company and told them that she'd never heard of this lawsuit before, and certainly had never been served with it, but they told her to pound sand.

Everyone agrees that she was never personally served. But the debt collector says that a process server back in the day served someone at one of her old addresses listed on its files -- a place where she didn't live, but where her brother, stepfather and mother lived -- and that the person served was "John Doe, a white male approx. 30–35 years of age 5’6”–5’8” in height weighing 140–160 lbs with black hair,” who was “a competent member of the household . . . at the dwelling house or usual place of abode of [Young].” So the debt collector says that the substitute service, and hence the default judgment, is valid.

To be honest, I'm super suspicious. I mean, can you even think of a more generic description for the guy you allegedly served? Basically: white guy, 30s, average height, average weight, black hair. I'm sure that describes a lot of people. But at the same time, way too many. I'd definitely want to know more before I concluded that service was valid; in particular, what the brother looked like. 'Cause it sure ain't the mom or stepdad, and I'm worried that someone might have just popped in a general description.

In any event, the question is whether there was actual service, and everyone at the address denies that they ever got served, so there's at least a question of fact.

But the debt collector insists upon collection, and when it doesn't relent, the woman sues, claiming unfair debt collection. The debt collector then files an anti-SLAPP motion, which it wins, and then seeks over $78,000 (!) in attorney's fees.

What if this were you? Can you imagine waking up one day to find out that someone's trying to garnish your wages for a lawsuit you've never heard about before? And then, when you challenge it, you end up owing potentially another $75,000+ on top of the alleged debt?

I mean, what if she's right that she was never served? It is really right that she gets pounded like this?

Fortunately, the Court of Appeal largely reverses. As well as awards costs to the woman on appeal.

I just keep going back to the fact that this woman -- Kacie Young -- could be any of us. Maybe, of course, she owed the debt, and was actually served, and knew about the judgment the whole time.

But it's also eminently plausible to me that she totally didn't.

Monday, May 01, 2023

Upper Skagit Indian Tribe v. Sauk-Suiattle Indian Tribe (9th Cir. - May 1, 2023)

It's fascinating that, in 2023, to figure out who gets to take some salmon from a given river in Washington, we have to try to figure out as best we can the particular places that a very tiny group of Native American with no written history occasionally went to go fishing back in the early 1800s.

Or, more accurately, what a particular federal judge thought a half-century ago about the report of a particular anthropologist (Dr. Barbara Lane) who tried to figure out even earlier than that where that tiny group occasionally fished approximately two centuries ago.

The Ninth Circuit concludes today that members of the Sauk-Suiattle Indian tribe occasionally fished on various upper tributaries of the Skagit River, but not on the actual Skagit River itself. As a result, pursuant to the Treaty of Point Elliot in 1855, members of this tribe only get to take the salmon that actually make it up the river that far, without being caught by members of the Upper Skagit tribe or the Swinomish Indian Tribal Community -- who have the right under that same treaty to take salmon from Skagit River itself.

I also thought it was especially sad that the relevant tribes couldn't negotiate a resolution of this dispute on their own, rather than wasting what I strongly suspect is precious and far-from-prevalent money on federal litigation amongst the parties.