Cvejic v. Skyview Capital (Cal. Ct. App. - June 28, 2023)

The Ninth Circuit might be fine with it, but at least if you're in Justice Wiley's division, you better not be even the tiniest bit late in paying your arbitration fees.

Because if so, you've waived the right to compel arbitration.

The facts are straightforward. Plaintiff filed a lawsuit in court, defendants moved to compel arbitration and won, and the arbitration hearing was eventually scheduled to occur on August 5, 2021. The AAA rules say that arbitration hearing fees are due sixty days beforehand, which means in this case they were due on June 4. On July 7, plaintiff asked if defendants had paid yet, and the next day, the AAA case manager said they hadn't. So the AAA did a conference call with the parties and set a new payment due date of July 14.

But Plaintiff figured this was his shot to get out of arbitration entirely. An hour after the call, he said that he was withdrawing from the arbitration pursuant to CCP 1281.98, which says that if the defendant doesn't pay the fees, plaintiff can go to court.

Defendant promptly paid the fees a couple of days later, before the new July 14 deadline, and the AAA panel said that was fine.

But Justice Wiley says: Nope. The arbitrators may well feel like extending the deadline and getting their fees. But the CCP means what it says. If you snooze, you lose. Defendants didn't pay on time, so Plaintiff can go back to court.

So, to reiterate: Don't be late.

People v. Codinha (Cal. Ct. App. - June 26, 2023)

The trial court sentences the defendant to a total of eight years in prison, which included a concurrent 16 month sentence on a particular enhancement. Some time later, long after the judgment was final, the court received a letter from the Department of Corrections saying -- correctly -- that the underlying statute says that those 16 months need to be served consecutively, not concurrently.

Can the trial court simply correct the sentence and add the extra 16 months?

Jurisdiction has terminated. But there are some statutory provisions that, in particular settings, allow the trial court to nonetheless correct an erroneous sentence. The classic examples involve clerical errors.

But it's crystal clear that those statutory provisions don't apply.

Does the trial court nonetheless retain inherent power to correct the erroneous sentence?

The Court of Appeal says: Yes.

Justice Irion's opinion seems persuasive to me. It's true that the trial court can't just change its mind or the like; that's not permitted. But the Court of Appeal holds that if, as here, the sentence is "unauthorized" by law, the trial court possesses the inherent power to recall and correct it. Even long after the time for appeal has expired.

Okay. I get that. Makes sense. Comports with justice, too.

(There might be an exception when, for example, the defendant has already completed his entire sentence, but this case doesn't involve that scenario.)

Here's my only follow-up question for Justice Irion, though.

If that's the case, then doesn't the same rule apply to lots of collateral objections by defendants as well?

Defendants often claim that their sentence is unauthorized by law; e.g., illegal. It's unconstitutional, it's an erroneous interpretation of the statute, etc. Normally, those disputes get resolved on appeal, and typically, if the defendant tries to raise them later in the trial court (e.g., through a writ of "coram nobis"), trial courts hold that they have no jurisdiction to entertain them. Too late.

But, after this opinion, isn't what's good for the goose also good for the gander? If the prosecution (or the trial court, on its own initiative or pursuant to a letter request from the DOC) can permissibly ask the trial court to increase a sentence (or conviction) because it's legally impermissible, can't defendants do the exact same?

Seems like that's a pretty big deal.

Law Finance Group LLC v. Key (Cal. Supreme Ct. - June 26, 2023)

I just wanted to give a brief shoutout to Justice Kruger for this opinion earlier today. Sure, it was a unanimous opinion, as is often the case with the California Supreme Court these days. But that doesn't necessarily mean it was an easy opinion to decide and/or write.

The opinion is crisp and well-written. It's not about an issue that burns the deepest recesses of my soul; it's instead about whether the 100-day deadline for seeking to vacate an arbitration award is jurisdictional or subject to equitable doctrines like tolling and estoppel. Something that's important but, let's face it, far from sexy, and not likely to start a ton of bar fights or the like.

Still, I liked reading the thing. Her analysis not only seems right to me, but the opinion as a whole was also written in an organized, breezy fashion that I found particularly readable.

Well done.

Minser v. Collect Access LLC (Cal. Ct. App. - June 21, 2023)

There were no Ninth Circuit opinions today, and only this opinion from the Court of Appeal. About which I might normally say not much at all.

It nonetheless struck me as fairly unusual that the plaintiff in this case filed a lawsuit (a Rosenthal Fair Debt Collection Practices Act case), conducted discovery, and went all the way through a trial as well as subsequent post-trial briefing (e.g., to recover fees) and expended, in its entirety, exactly $12,100 in fees.

That's an amazingly small number. Twelve grand for an entire lawsuit and trial? Wow. No wonder the trial court was willing to grant the plaintiff all the fees he requested, and that the Court of Appeal was willing to affirm despite the amounts being block billed, not supported by individual attorney declarations, etc.

It's such a small number. Of course plaintiff spent that much. Indeed, I'd have thought they'd have spent tons more than that.

Plaintiff also prevails on appeal, and is awarded his costs and fees there as well. I'd suspect those would likely be another $12,000 or so as well, or more. (I'd say "more" for virtually anyone, but if you're only charging $12,000 for an entire litigation, I guess you're probably not charging more for that for defending the appeal, no?)

In any event, probably not such a great decision for the debt collector here to appeal. Should have just left well enough alone at the outset.

People v. Tilley (Cal. Ct. App. - June 20, 2023)

Earnest Tilley was under the influence of methamphetamine -- a bad idea in general, but particularly bad for someone (like him) diagnosed with paranoid schizophrenia -- when he entered a Tractor Supply store, took $200 worth of items without paying for them, and pushed a female employee to the wall when she attempted to stop him from leaving. He gets arrested and pleads no contest to robbery.

That's a fairly standard fact pattern, particularly these days. There's a lot of press about the lack of any real punishment for low-value thefts from retail establishments.

What sentence do you think Tilley receives?

Answer: Six years in prison.

Now, he's got a prior strike, so his sentence was doubled. Still. That's not an insubstantial period of incarceration. Particularly for someone (as here) with obvious mental health problems.

The Court of Appeal affirms.

People v. Waqa (Cal. Ct. App. - June 14, 2023)

The Court of Appeal holds here that Rusiate Waqa should have been sentenced to 15 years to life rather than 25 years to life because he was only guilty of simple (as opposed to aggravated) kidnapping during the rape he committed.

Justice Humes' opinion in this regard is pretty darn comprehensive. I'll add that 15 years to life is still a lengthy period of incarceration, particularly since the facts of the underlying crime strongly suggest (to me, anyway) that Mr. Waqa probably won't be getting out of prison on his first parole eligibility hearing, or even anytime soon thereafter.

The rape was committed in a public restroom at a park in Santa Rosa, and the jury convicted Mr. Waqa of aggravated kidnapping -- rather than simple kidnapping -- because it thought that his moving the victim from the "normal" bathroom stall (where she had just finished going to the bathroom) to the adjacent (larger) "disabled" stall "substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the [rape]." The Court of Appeal concludes, however, that that's not the case; that getting into the larger stall didn't substantially increase the risk to the victim, and as I said, Justice Humes' analysis in this regard is both multifaceted and quite detailed. It's persuasive to all of the members of the panel, and reading it, you can see why. Justice Humes explains in depth why all of the things that the prosecution said could happen in the larger disabled stall (e.g., leaning on the victim, closing the door behind him, etc.) could happen in the smaller stall as well, so for that reason, there was insufficient evidence that the risk to the victim was "substantially increased" as a result of the movement to the larger adjacent stall. So the "kidnapping" was simple kidnapping, the sentence for which is 15 to life, rather than aggravated kidnapping (which gets you 25 to life).

Justice Humes does a great job explaining why all of the "risk" arguments raised by the prosecution do not work. Here's just one of the examples:

"The Attorney General claims that “having the larger space could have allowed [Waqa] to, for example, orally copulate the victim, which he would not have been able to accomplish in the smaller stall.” Although we disagree with Waqa that this factor is not met because there was no evidence he intended to commit such a crime, there is no substantial evidence that he would have been unable to orally copulate Doe or accomplish “whatever crime he wanted” in the small stall. (Ibid.) It may have been easier for him to sexually assault her in the larger space, but either way he had essentially the same opportunity to commit other crimes, particularly since the two stalls did not significantly differ in the opportunities they afforded for detection or escape."

All that makes sense. But the "risk" argument that popped into my head as a result of being in the larger stall was actually not one of the ones that Justice Humes analyzed or (apparently) that the prosecution raised at trial on appeal, so I thought I'd share it with you and see what you think.

Were I the victim, one of the (big?) reasons I wouldn't want to be in the larger disabled stall is because it's much easier for a guy to punch me into submission there. Mr. Waqa was a big guy: six foot tall and over 200 pounds. Could he and I both fit into the small stall and could he commit the rape there? Yes. Could he lock the door behind him? I agree with Justice Humes that, yeah, he probably could.

But it'd be cramped. Super cramped. Those bathroom stalls are narrow. As a result, were I in the smaller stall, I'm pretty sure the guys elbows and the like would be pressed up against the stall walls, or at least pretty near them. Which in turn would make it hard -- or, at least, harder -- for the guy to really wail on me and get a full punch in. The best he could do is probably just short blows rather than the real type of haymakers that he could probably easily get in were we in the larger disabled stall.

Which would matter to me. 'Cause no one wants to get hit, especially during a rape, but you especially don't want to get hit full force. Particularly from a guy who's 6' and 200+ pounds.

Would that be enough to make the forced movement from the smaller stall to the larger stall into an actual aggravated kidnapping? Would it "substantially increase" the risk of harm to the victim?

Whatcha think?

One final thing. I found it fascinating how much time Justice Humes felt compelled to devote to describing the relevant bathroom stalls. Here's what he says:

"Doe entered the women’s restroom, which has two stalls, a small one and a larger one for people with disabilities. The restroom’s outer door is made of open bars, and it was propped open that morning. Upon entering the restroom, one must turn right and go around a corner to reach the stalls. 

The two stalls are partially formed by partitions that do not extend all the way to the floor or ceiling of the restroom. The small stall is a rectangle made up of a structural wall in the back, two partitions perpendicular to the back wall, one of which is shared with the larger stall, and a stall door parallel to the back wall. The large stall is a right-angled trapezoid made up of the partition it shares with the small stall, a stall door that continues in line with this partition, and three structural walls.4 One of these walls does not extend all the way to the floor or ceiling of the restroom, creating gaps to the outdoors. The two stalls’ doors form an “L,” so when exiting the small stall, the large stall’s door is immediately to one’s left. Like the stall partitions, both stall doors do not extend all the way to the floor or ceiling."

I'm sure all that is entirely accurate, and had the reader never been in a public restroom before, you can see why a detailed description in that regard would be required.

But most of us are pretty familiar with how these types of bathroom stalls work and look like, right? Justice Humes' description is pretty much spot on for virtually every one of the hundreds (thousands?) of public restrooms I've ever entered. There's a tiny stall (or several) and then there's a larger, wider and longer disabled stall at the end, against the wall. Yep. That's how it generally works.

POSTSCRIPT - For whatever it's worth, a healthy-sized reader sent me the following description of his empirical test of my intuition in this regard: "I’m over 6’5”+ and over two hundred, so taller and thinner than Waqa, but that would typically indicate his torso is a bit wider even if his arms were a tad shorter.  So, I decided to test your theory on our office stalls. The results: jabs and uppercuts were just as easy in the smaller stall; cross/hooks I could throw, but constrained, and my guestimate is 80% of the force would be delivered.  Haymakers?  No chance – wacked my elbow, and I don’t see the radius of Waqa’s swing being that much less than mine for the reasons above.  Backhand slaps, which seems appropriate to somebody like Waqa: far easier than a punch, no constraints. So there you have it – totally scientific anecdota supporting your position that the risk of a severe beating was enhanced by the stall move."

Aargon Agency v. O'Laughlin (9th Cir. - June 15, 2023)

It just seems to me that Judge Fletcher is right here and that Judge VanDyke is wrong.

Which, I get, you might think is because (1) it's a case involving debt collectors, (2) in which the Ninth Circuit holds against the debt collector. Plus, in general, it's true that I often find myself more agreeing with Judge Fletcher than Judge VanDyke. (At least when they disagree; in truth, I agree with what both judges write the overwhelming majority of the time.)

That said, Judge Bybee agrees with Judge Fletcher as well. And that's a judge who, in general, is more likely to agree with Judge VanDyke than Judge Fletcher. (At least, again, when they disagree.)

So that gives you some confidence that my perspective on this isn't just results-oriented, no?

Judge Fletcher's opinion basically holds that it's just fine for Nevada to require debt collectors to send a letter 60 days before they try to collect a medical debt that says that tells the debtor where the alleged debt is from (e.g., the name of the health care provider) and the amount of the debt. That doesn't violate the First Amendment and it isn't preempted by the federal Fair Debt Collection Practices Act. As Nevada's subsequent regulations make clear, that initial letter isn't an attempt to collect a debt -- indeed, the Nevada regulations expressly say that's got to be in the letter. It just tells the debtor what's owed, in the event the debtor feels like paying it or otherwise wants to do anything else (e.g., investigate or dispute the thing).

Just like, I might add, it wouldn't violate the FDCPA to require debtors to send a letter with a smiley face 60 days before attempting to collect a medical debt. Yes, everything a debt collector does is ultimately an attempt to collect a debt. But a letter required by the state that includes a smiley face nonetheless is not an attempt to collect a debt under federal law, and in any event, is more protective than federal law anyway, so is not preempted.

In short, I agree with Judge Fletcher.

Lucas v. City of Pomona (Cal. Ct. App. - June 13, 2023)

I hear you asking: "How does municipal zoning, environmental review and cannabis stores legally interact?"

Here's 49 pages on the subject.

Short answer: The City of Pomona has a lot of leeway in where it decides to allow the sale of marijuana.

In re Evans (9th Cir. - June 12, 2023)

This is a really well written opinion by Judge Milan Smith.

It's not a sexy or high-profile case. It's instead about bankruptcy. Simple question: Does a Chapter 13 trustee get paid their "percentage" compensation when the petitioner dismisses the bankruptcy petition?

The Ninth Circuit says: No.

It's not that the opinion says anything radical. The Ninth Circuit ends up going the same way as the Tenth Circuit, and as suggested by the National Consumer Bankruptcy Rights Center (as amicus).

It's just that the opinion is really . . . well-written. As I said. It's clean, coherent, structured and persuasive. Nothing radical, nothing sloppy. Just quality jurisprudence.

There are lots of ways the opinion could have tried to push a particular agenda; i.e., being exclusively textualist, being one-sided or obviously results-oriented. This was none of that.

Great to see.

Sharp v. S&S Activewear (9th Cir. - June 7, 2023)

Today's opinion by Judge McKeown will likely affect your life more than the overwhelming majority of Ninth Circuit decisions this year.

Sub silentio.

The Ninth Circuit reverses the trial court's dismissal and holds that it might well constitute sexual harassment for a business to play "sexually derogatory" or "misogynistic" music in the workplace.

That holding, I predict, will have a major influence on the type of music that employees as well as customers routinely hear in businesses.

Mind you, it's not likely that most of the businesses that you patronize play the type of music that the Ninth Circuit's talking about. Last time I checked, anyway, places like Trader Joes and the like weren't pumping out, say, A$AP Rocky over the loudspeaker.

Still, there's a nontrivial amount of music that could easily be described -- or at least claimed to be -- violent, sexually derogatory and/or misogynistic that you occasionally hear in business settings. That music includes not only the stuff deliberately disseminated by the business, but also whatever music might be audible from the speakers or earbuds of individual employees.

After today, in the Ninth Circuit, at least, I suspect you'll see lots of businesses clamping down hard on the type of music that can permissibly be played at work.

In short, more Musak, less pop. Even at "hip" establishments. (As well as, potentially, many times of bars and restaurants.)

Now, for many people, that might well be viewed as a win, given their particular taste in music.

But whether it's a W or an L, after today, I strongly suspect it's going to happen.

'Cause no one wants to be sued for sexual harassment. Ever.

Even if it means listening to Barry Manilow all day.

Borden v. Stiles (Cal. Ct. App. - June 6, 2023)

There's a ton about this that makes total sense to me, so I very much appreciated Justice Motoike's thoughtful opinion this afternoon.

But I do have one lingering question that, totally sincerely, confuses me.

The background rules are basically these: (1) If you want, you can let someone live in a house you own without paying rent; if so, once you die, they have to leave. (2) Normally, if someone has lived in a place for a year, you can't evict them without a good reason, and those good reasons include, for example, not paying rent.

So how do these two background principles interact?

Here, Dan Blechman owned a place in Laguna Hills, and let Loretta Stiles live there for free for several years. Ms. Stiles said that this was because she did some work for Mr. Blechman and that, in lieu of any pay, he just let her live in his place for free. Makes sense.

Eventually, Mr. Blechman dies, and the administrator of his estate lets Ms. Stiles remain in the property for quite a while, but eventually asks her to leave. She refuses, saying that there's not "just cause" for her eviction, since she's always paid all the rent that's due, which (as a reminder) was nothing.

Hence the lawsuit.

The lower courts both hold that Ms. Stiles gets to stay there. But the Court of Appeal reverses, holding that what Ms. Stiles was a "tenancy at will" and that those things automatically end once the principal dies. So, at that point, her continuing tenancy was unlawful, which removes it from the scope of the "just cause" eviction requirement.

That all makes total sense to me. It sounds exactly right, and I was surprised that the lower courts held otherwise.

Now, at the very end, Justice Motoike says that it's unclear when exactly Ms. Stiles learned that Mr. Blechman died, or whether she paid rent or anything like that after his death, so she remands the case to figure all that stuff out; in particular, to ascertain whether the administrator of the estate "had potentially entered into a new tenant relationship with Stiles" after Mr. Blechman's death.

That makes sense. Though I'm pretty sure it didn't happen. Still, yep, we need to make sure.

But here's the thing I'm confused about:

Justice Motoike correctly explains (IMHO) that tenancies at will automatically terminate at death. But it's only a tenancy at will if the property owner can terminate the thing at any time (and, if so, pursuant to Section 1934 of the Civil Code, it then automatically terminates on death). But the way I read what Ms. Stiles' declaration said below, her testimony is that she was given the place for free as a reward for her services -- all fine thus far -- but also that the parties "agreed that [she] would be taken care of at the end of their partnership."

Doesn't that make a difference?

If I pay someone to, say, garden my shrubs, and in return, they get to live in the guest house for free while doing so, yeah, totally, once I'm dead, the deal ends. They don't have to garden my shrubs, and they've got to find another place to live.

But if I say "Hey, you've been gardening my shrubs for a long time now; keep doing it, and you get to live in the guest house for free, and I'll 'take care of you' thereafter," isn't that a different deal? Isn't that not terminable at will? Which means they get to stay in the place even after you're dead, for however long the agreement (if any) intended?

Say, for example, that Mr. Blechman expressly said "You're the best shrubber in the world, Loretta; keep it up, and even after all the shrubs die -- or I die -- you'll get to stay in the guest house for another five years." Surely she gets to stay there for the extra five years, right? For free. Her tenancy would not be "unlawful" then. 

It seems to me that that's (at least in part) what Ms. Stiles is saying. In which case, the issue is not just whether she struck a new deal with the estate administrator after Mr. Blechman died. But, in addition, there's an issue of what, exactly, the scope of the deal was before Mr. Blechman died, and whether it's sufficiently definite (particularly in terms of duration) to be enforceable.

No?

Then, if there was an enforceable deal, and Ms. Stiles' continuing occupation of the property was in fact lawful, we've got the additional complexity of deciding precisely the thing that the lower courts thought was a real tough question: whether the "just cause" provisions then require a good reason before Ms. Stiles' can be evicted?

Now, personally, I think she can be. Yes, if the deal was that you get to live rent free for, say, until I die and for five years thereafter, that means you get to stay there as promised. But for no longer. After then, you've got to pay market rent or leave. The rule would be silly otherwise; it'd mean that since no rent was due for five years, no rent is effectively due forever. Which can't be the rule. (Or at least would make no sense.)

Anyway, I doubt that, in fact, the deal that Mr. Blechman (allegedly) made with Ms. Stiles was for a particular period after his death. But if it was, and was enforceable, I think that's another way that Ms. Stiles might prevail in the unlawful detainer action. Not just if she had made a "new deal" with the administrator of the estate.

Or so I figure, anyway. This stuff gets really complicated once you have to wade through all of the  statutory weeds.

Hastings College Conservation Committee v. Faigman (Cal. Ct. App. - June 5, 2023)

Today's opinion is the latest installment of the controversy about changing the name of the "Hastings College of Law" to the "College of Law, San Francisco" on the grounds that S.C. Hastings -- the person who paid for and founded the law school -- did some really, really bad things.

I have a decent amount of familiarity with the quality of the briefs generally submitted by the competing law firms that represent the parties in this appeal. Defendants (the law school) are represented by Gibson Dunn. Plaintiffs (the people who want the old name) are represented by the Harmeet Dhillon Law Group.

One of those firms is much smarter -- and writes much, much better briefs -- than the other.

That said, here, the worse law firm is in the right -- and wins -- and the better law firm is in the wrong and loses.

Reasonable minds might perhaps differ on whether it's permissible for the law school to change its name given the underlying circumstances and contractual provisions regarding the creation and continuation of the school in 1878. Regardless, one thing is true: The lawsuit that contends that it's impermissible is not an anti-SLAPP suit that attempts to chill free speech.

Both the Court of Appeal and the trial court accordingly rightly held that the anti-SLAPP statute doesn't apply.

Indeed, truth be told, it's not even close.

So on to the merits.

Collins v. Waters (Cal. Ct. App. - June 5, 2023)

I had some definite questions about the original opinion. Today, Justice Wiley's (extensive) edits answer a lot of them.

It sounds like the defendant could have done a much better effort in the trial court to establish what appears to be, in fact, true.

Champlin/GEI Wind Holdings v. Avery (Cal. Ct. App. - June 2, 2023)

You'd think that it was a perfect life for California attorney Steven Slavitt. Graduated from Berkeley Law. Lives in Hawaii. Has a case in lovely Santa Barbara. Things are great, right?

Until he gets sanctioned today for filing a frivolous appeal. 

In a published opinion, no less.

Dupree v. CIT Bank (Cal. Ct. App. - June 1, 2023)

Justice Streeter begins today's opinion by relating a long-ago Court of Appeal decision to the Kennedy assassination:

"Before daily life in this country froze on November 22, 1963 at 1:38 p.m. Central Time when the tragic news from Dallas came across the airwaves—or perhaps later that day, which would confirm that our courts always remain open, even in times of crisis—a minor event of little note occurred here in California: A First District Court of Appeal, Division One panel filed its opinion in Oliver v. Swiss Club Tell (1963) 222 Cal.App.2d 528(Oliver). Nearly 60 years later, the events in Dealey Plaza on the day Oliver was filed continue to reverberate through history. This case shows that Oliver, too, is still having ripple effects, here in an obscure corner of California civil procedure."

That's a fairly random opening, to be sure. But it's also somewhat neat that Justice Streeter noticed that Oliver was decided on that particular day. Cool.

I did wonder if Justice Streeter actually remembered the Kennedy assassination. I wasn't alive back then, but Justice Streeter must have been around six years old. It was a memorable day, to be sure.

Although Justice Streeter says that Oliver was a fairly "minor" opinion involving "an obscure corner of California civil procedure," not only did the trial court here expressly rely on this opinion for its decision, but the opinion has also been cited over 330 times in other opinions, and the Court of Appeal in Florida a couple of years ago even went out of its way to opine that the opinion in Oliver seemed silly and wrong. Plus, I can personally attest to the long-lasting significance of the opinion, since the textbook for my first-year civil procedure class mentioned the Oliver opinion as recently as the 11th edition in 2013. So while it might perhaps involve a somewhat obscure principle of civil procedure, it's an important one, as well as an opinion that's received not a small amount of national note.

Anyway, a neat little opinion that brings the reader back to Dealey Plaza sixty years ago.

P.S. - Just my opinion: Lee Harvey Oswald acted alone.