U.S. v. Torres-Giles (9th Cir. - Aug. 31, 2023)

There are several particularized differences between the majority and the dissent in this case. One of these -- an important one, but certainly not the only important one -- was whether the district court's relatively harsh (high-guidelines range) sentence for illegal reentry was based in substantial part upon the fact that the defendant had allegedly lied to the district court at a prior sentencing hearing.

The defendant here had been deported back to Mexico numerous times and had fairly uniformly come back to the United States (illegally) quite rapidly after being deported. The last time he was caught he was charged with illegal reentry and, during sentencing, allegedly promised the district court judge that he would stay in Mexico this time and not come back. A promise that somewhat bit him in the ass when, one month after he was deported, he was again arrested in the United States for illegal reentry, and brought before the same district court judge that had sentenced him in the prior case. A district court judge who, at a bare minimum, definitely recalled this particular defendant and (maybe) what he had promised the last time around.

So, this time, when sentencing the guy, one of the things the district court judge was miffed about was the prior (alleged) broken promise. There's a fight about whether the district court judge actually had a good recollection of the broken promise (the majority view) or merely a hazy and uncertain one (the dissent). Regardless, Judge Sanchez's majority opinion says that it's not clear that the judge relied that much on the (alleged) broken promise, whereas Judge Mendoza (in dissent) thinks that the judge probably did.

You can read the record for yourself and see which view you fight most appealing in this regard.

But I can add one thing -- something that's maybe (okay, certainly) not subject to judicial notice, but is nonetheless something as to which I'm fairly/supremely confident.

The district judge in this case is down here in San Diego, Judge Burns. This much I know: He most definitely does not take a broken promise allegedly made to his face lightly. There is no doubt that he would care, deeply, about that. That it would matter. A lot.

He's not a judge you want to cross. At all.

Hagey v. Solar Service Experts LLC (Cal. Ct. App. - Aug. 30, 2023)

This opinion seems obviously right, no?

A solar company sells a solar system to a homeowner, and the homeowner in turn owes monthly payments to the company. When the homeowner sells the house, she pays the solar company (in advance) all the monthly payments that are ever owed under the life of the contract, and turns over the solar system to the new owner. But solar company keeps sending bills to the new owner -- bills that aren't actually due. So the new homeowner sues under the (California) Fair Debt Collection Practices Act.

The trial court dismisses the complaint on a demurrer, holding that the new homeowner wasn't covered by the statute because the new homeowner (1) didn't actually buy anything from the solar company, so it wasn't a consumer transaction (between them), and (2) didn't actually owe the defendant money.

But the Court of Appeal -- entirely rightly -- reverses. It doesn't matter that the new homeowner didn't owe anything. The whole point of the statute was to stop debt collectors from trying to collect debts that were not, in fact, owed. Like here.

I'm not at all sure how the trial court could have gotten this one wrong. Regardless, I was glad to see the error corrected in the Court of Appeal.

U.S. v. Pepe (9th Cir. - Aug. 28, 2023)

It's extremely difficult to empathize with a defendant found guilty of moving to Cambodia in order to repeatedly rape children. That's true whether (as here) those children were under 12 or, as defendant contends, slightly older (e.g., 13). The stark reality is that the nature of the crimes, as well as the number of children involved, isn't exactly conducive to wanting to reach out and reverse his convictions.

Now, the sentence imposed on the guy here -- Michael Pepe -- is an extraordinarily long one: 210 years. (Judge VanDyke's opinion today nowhere mentions this sentence, whereas Judge Nguyen's opinion from five years go, which reversed and remanded Pepe's original conviction, does. I suspect that it's not entirely coincidental that opinions that reverse convictions often mention the incredibly long sentence imposed whereas opinion that affirm often do the opposite.) Plus, the guy's old now: according to the Bureau of Prisons, 69. (Also not in the opinion.)

But for most people, neither of those facts will really get the heart pumping to try to reverse in a case like this.

Times a thousand when the panel consists, as here, of Judges Randy Smith, Lee and VanDyke.

Anyway, the Ninth Circuit affirms his conviction after the retrial. So Mr. Pepe will almost certainly die in prison.

Fairly soon, I expect. Life expectancy in prison not being extraordinarily long. (Perhaps particularly for those convicted of raping children.)

People v. Moyer (Cal. Ct. App. - Aug. 25, 2023)

Here's one jury I won't be on. Because even if I lived in Santa Clara county (which I don't), I'd have to admit during voir dire that I have already come to a tentative -- but fairly strong -- opinion that at least certain people in the Santa Clara County Sheriff's Office are totally and completely corrupt, and should be in prison.

The defendant here is Apple's head of global security, Thomas Moyer. There's an underlying legal dispute in the opinion about whether Mr. Moyer can potentially be found guilty for bribing the undersheriff of Santa Clara County with 200 iPads (worth $50,000-$80,000) in return for concealed carry permits on behalf of various Apple employees. The trial court thought he couldn't be found guilty, but the Court of Appeal hold otherwise, so reinstated the charge against him on the second count of the indictment.

Personally, I don't have a particularly powerful feeling as to whether Mr. Moyer is guilty of bribery, and Justice Bromberg's opinion in a couple of places similarly mentions that the evidence against him might not be especially strong (albeit sufficient for an indictment). Maybe he's guilty, maybe he's not. I'm fine to let a jury decide.

But it is my firm opinion that the relevant people in the Santa Clark County Sheriff's Office belong behind bars.

Here's the basic scoop:

"The Penal Code authorizes, but does not require, county sheriffs to issue licenses to carry concealed weapons to applicants who are of good moral character, have good cause for a license, reside or work in the county, and have completed a specified course of training. [Cites] In the Santa Clara County Sheriff’s Office, CCW applications are processed by the public information officer, who is responsible for conducting background checks, arranging fingerprinting, and ensuring that applicants complete the required trainings. 

During the relevant time frame, the Santa Clara County Sheriff’s Office rarely issued CCW licenses. Indeed, the office’s practice was to not even process an application for a CCW license absent a special instruction to do so. Only Sheriff Laurie Smith and a small number of others in the Sheriff’s Office had the authority to give such instructions. One of those individuals was Rick Sung, who appears to have run Sheriff Smith’s 2018 re-election campaign and after the election became the undersheriff, second in command to the sheriff. Undersheriff Sung also had authority to place license applications on hold even after licenses were signed by the sheriff.

Undersheriff Sung abused his authority over CCW applications to extract favors. In 2016 or 2017, Harpreet Chadha, a business owner, applied to renew a CCW license. After the license was signed, Sung placed the license on hold and met with Chadha. Afterwards, Chadha attempted to schedule an event for the sheriff in his company’s luxury suite in the San Jose sports arena. The event did not take place then, and Chadha’s CCW license remained on hold for more than a year until Sung spoke with Chadha in December 2018 and a new permit was prepared. On February 14, 2019, Chadha hosted an event for Sheriff Smith in his company’s luxury suite. That same day, Chadha received his CCW license."

Similarly, when the folks at Apple wanted CCW licenses for their security people, they had to jump through the various (alleged) bribery hoops at the Sheriff's Office. The claim -- which seems darn strong to me -- is that (1) the CCW licenses languished forever, gathering dust, (2) until the folks at Apple made a $1000 campaign contribution to the Sheriff, (3) at which point the CCW licenses were approved but not issued, (4) and Apple was told that they'd never be issued if one particular employee at Apple who donated to the Sheriff's election opponent was getting one, (5) and the Sheriff's office would also be needing $50,000 worth of "free" iPads from Apple, to which Apple (at least initially) agreed.

My honest reaction: Scumbags. Times fifty since they're (allegedly) law enforcement officers.

I know that kind of (blatant) stuff goes on routinely in some other countries, even involving police officers.

Just didn't know it (allegedly) happened in my back yard as well.

People v. Martinez (Cal. Supreme Ct. - Aug. 24, 2023)

Three years ago, when the Court of Appeal struck down Section 1814 of the Insurance Code, which prohibits bail companies from paying inmates from referring potential customers, as an unconstitutional infringement of free speech, I was skeptical, saying (among other things):

Letting bail agents make "arrangements" with inmates to refer clients to 'em clearly, in my view, distorts the marketplace, and punishing such conduct will lead to a marketplace more closely (albeit admittedly still imperfectly) competes on relevant criteria -- price, quality, service, etc.

Today, the California Supreme Court said pretty much the exact same thing -- albeit in 34 pages and in much greater detail -- and unanimously reverses the decision below.

 

Altizer v. Coachella Valley Conservation Comm'n (Cal. Ct. App. - Aug. 21, 2023)

Justice Codrington's opinion earlier today says:

"Appellant Tanner Altizer suffered serious injuries when he ran into a suspended cable fence while riding his off-road motorcycle on an unpaved area in an unoccupied area of the desert. The owner of the property, respondent the Coachella Valley Conservation Commission (the Commission), placed the cable fence around its property to stop illegal dumping and off-road vehicles in order to protect the sensitive habitat. . . .

In 2014, the Commission decided to fence off the perimeter of the property because of vehicular traffic and illegal trash dumping. The Commission opted to use a fence consisting of 5/16” metal cable suspended about 3.5 feet in the air and supported by galvanized posts every 15 feet. (See Appendix A.) . . . . Photographs taken at the crash scene are attached as Appendix A. . . . [T]he section of the cable fence Altizer collided with is unobscured and clearly observable (see Appendix A)."

But I'm looking everywhere in the opinion. Where is Appendix A?

People v. Mumin (Cal. Supreme Ct. - Aug. 17, 2023)

Is footnote six of this opinion really correct?

The whole opinion (and concurrence) is about the "kill zone" theory of attempted murder. It's a criminal law professor -- and philosopher's -- dream, and Justice Corrigan's opinion is incredibly detailed. You'll learn a ton about the subject matter by reading the thing, and it's a multifaceted and complicated doctrine. So if you've got a couple of spare hours to read 70 or so pages of legal theory, seriously, I recommend the thing.

The only thing I wanted to talk about in detail, though, is footnote six. The present case involves a guy who had previously committed a murder who was being sought in a police manhunt. The police trace the guy to an apartment complex, there's a massive police presence while the officers spend an hour going door to door looking for him, and eventually two of the officers start searching a community building in the complex with several closed doors. They're concerned that the guy they're looking for might be hiding behind one of these doors, so just like in the movies, they're super careful when they start opening each of the doors. One of the officers stands way to the side, while another carefully stands to the left of the door and reaches across it to open the door, and when the door starts to open, the guy inside starts shooting -- exactly as the officers feared. The officers return fire and hit the guy, who eventually surrenders.

The shooter gets convicted of murder for the guy he actually killed, but also gets charged with two counts of attempted murder -- one for the officer who opened the door, who the guy was clearly trying to kill, and the other for the officer standing to the side, who the guy didn't even know about but who was arguably in the "kill zone" created when the shooter fired his shots through the door.

The question in the case is whether that second count -- the one based on the "kill zone" theory -- is valid.

The classic "kill zone" case has a ton of bullets shot into a group of people. You can learn more about this from Justice Corrigan's opinion, but the easiest hypo is when you're trying to kill X and X is standing in a tight group of 10 people and you blast your Uzi into the group, killing not only X (who you wanted to kill) but also Y and Z. Even though you were only "trying" to kill X, you're still guilty of intending to kill Y and Z because you deliberately created a "kill zone" around them.

The question here is whether firing three shots from behind a closed door creates similar criminal "kill zone" liability.

Justice Corrigan's opinion notes that most of the kill zone cases involve shooting tons of bullets into the kill zone; e.g., “21 shots into a small space enclosed on three sides." She holds that the three shots here were insufficient as a matter of law to create a "kill zone" on the outside of the door. Although the opinion contains the caveat that "we do not suggest categorically that a kill zone can never be created with a relatively small number of shots," here, the three shots the guy fired weren't good enough to impose kill zone liability.

That's the context in which footnote six appears. Which states, in its entirety:

"The Attorney General asserts Mumin [the shooter] did not shoot more than three rounds because he was wounded by the officers’ return fire. But the inference of intent to create a kill zone is drawn from what the defendant did and the amount of force actually used. While there may be a plausible explanation for why he did not fire more shots, it is not sufficient to argue he might have kept shooting and from that speculation infer that he would have intentionally created a kill zone. Canizales teaches we may only evaluate the intent to create a kill zone based upon the actual circumstances. (See Canizales, supra, 7 Cal.5th at pp. 609–611.)"

Hmmm. I'm not so sure.

It's facially difficult to argue with the general proposition that criminal liability must be "based upon the actual circumstances."  But we're talking here about liability for attempted murder. It's an attempt. And for that crime, sure, we're always concerned about the "actual circumstances" of the crime, but we are also cognizant that what matters is not the "actual consequences" of the crime, but instead what was the defendant's intent regardless of what the actual reality was.

So if, for example, a person points a gun at you and pulls the trigger, they're clearly liable for attempted murder notwithstanding the fact that the "actual circumstances" were that, unbeknownst to the would-be shooter, there were no bullets in the gun. Their intent was to shoot the thing. They're liable.

For that reason, I'm not at all confident that footnote six is correct when it says that what we care about for attempt liability purposes is simply "what the defendant did and the amount of force actually used." What matters instead seems to me what the defendant intended to do and the the amount of force that he intended to apply. After all, the empty-gun shooter didn't actually fire a weapon, and the "amount of force" that he actually used against the victim was zero. But he's still liable for attempted murder.

Similarly, here, if it's true that the defendant intended to, say, empty all ten rounds in the clip against the officers, and the jury found that he would have in fact done so but for being shot in the interim by the police officers, then I don't know why his attempt liability couldn't reasonably be based on the 10 shots he intended rather than merely the three he successfully fired off. No different than the empty gun fact pattern, right?

Imagine, for example, that a guy has a set of explosives wired up to a plunger, with twenty people in the area, with the goal of killing one person (Jim) therein but knowing full well that the explosion will kill all twenty. To be dramatic, right before shoving down the plunger, the guy announces "I put TNT in the mailbox, and now I'm going to create a massive explosion to kill Jim," but this is overheard by a police officer who promptly shoots the guy. If the shot stopped the guy from pushing down the plunger, I have zero doubt that the guy would still be liable for attempted murder, at least of Jim. Similarly, if the shot only stopped the plunger from going all the way down, but it still went halfway down and thereby set off a tiny fraction of the explosives, killing only Jim, it seems to me that the guy still remains guilty of attempted murder of all twenty. That was his intent, and he in fact killed someone (Jim). What matters is not the amount of force in fact used, but rather the amount of forced intended, and what would have been the amount of that force but-for the unexpected police intervention.

So Justice Corrigan's opinion is incredibly detailed and coherent. But I wonder a lot about footnote six.

In re Harris (Cal. Ct. App. - Aug. 16, 2023)

How many published name change decisions have you ever read? Any? How many unopposed published name change appellate opinions have you read?

Let's add this one to the list. A list that, I suspect, consists entirely of itself.

A guy named Andre Pierre Harris wants to change his name, files the appropriate paperwork, publishes the required notice, and shows up for his hearing. No opposition, everything seems fine.

Now, you're thinking that since this is a published opinion, he wants to change his name to "Hitler" or "F**ker" or "Joe Biden Bite Me" or something like that. Nope. Does he want to change his name to something a bit, well, unusual? Yes. At least to a fuddy-duddy like me. He wants to be called ":Minko: Yona-Gvinge: El-BeyⓇ."

Okay. No weirder than X AE A-12. Whatever floats your boat.

Now, from ancillary details in Justice Wiley's opinion, I get the incredibly strong sense that Mr. Harris (as he is currently known) is, shall we say, a little . . . out there. For one thing, in one of the documents in the trial court, he submitted a declaration that says that he's a “living soul, the Spiritual man made from the dust with the holy breath of the Creator YHWH (God)" who's a "native born Mu’ur, native to this land." For those of you who don't understand the reference, the whole "native born Mu'ur" thing is a timeworn "sovereign citizen" involving fictional nations and bizarrely untrue historical beliefs that allegedly exempt people from all taxes, laws, etc.

But whatever. Not a basis for denying your name change, in my opinion. If you don't pay your taxes, we have a remedy for that. If you do, great. Either way, you can call yourself (pretty much) what you want.

But here's the thing. The trial court looks it up, and Mr. Allen has an outstanding warrant for his arrest.

Well now. The trial court says that changes things. It refuses to allow the name change until Mr. Allen clears up the warrant. Mr. Allen appeals, saying that no one, anywhere, opposed his application. But the Court of Appeal affirms.

Which, on the merits, seems reasonable to me. A trial court could reasonably decide to not let you change your name so that when a cop pulled you over you could (truthfully) say "I'm not Andre Harris; I'm Minko El-Bey." Gotta fix the warrant thing first, and then, if you want, change away. That's perhaps a burden (though slight IMHO) on your right to call yourself what you want, but even if so, it's fine.

The one thing I'd perhaps discuss a little more than Justice Wiley did here was the trial court's ex parte investigation into Mr. Harris' status. Yes, the trial court was statutorily obligated to make sure that Mr. Harris wasn't on the sex offender registry. But checking for any warrants seems entirely different to me. I'm not at all confident that the trial court's ability to do the former lets 'em do the latter. Despite the fact that Justice Wiley's opinion seems to conflate the two, or at least breezes through it.

That said, with unopposed name changes, on the merits, I'm probably okay with the trial court doing some very limited investigation on its own. Including seeing if there are outstanding warrants. It's one of the very few reasons why I might stop someone from changing their name, and the reality of name change petitions is that almost none of them are opposed, so a little trial court investigation on its own doesn't seem entirely out of line to me.

Mind you, as an old-fashioned guy, I'm still a little weirded out by the whole "add punctuation to your legal name" thing. Here, the colons and the silly "registered mark" thing (which I believe is also a relic of that stupid sovereign citizen thing). 

But that's probably my problem, not yours.

Just get that arrest warrant cleared up first.

People v. Mitchell (Cal. Ct. App. - Aug. 16, 2023)

What the hell?

On first glance, after reading today's opinion by Division Six of the Second District, it seemed like a run-of-the-mill split in the Court of Appeal. An earlier published opinion (Bartholomew) held that there was no statutory right for the state to appeal when the trial court reduced a felony wobbler to a misdemeanor prior to trial. Whereas, today, the Court of Appeal disagrees with that opinion, and holds that there is, in fact, a right to appeal.

Okay. No problem. Often happens. One panel disagrees with another. Unlike in the Ninth Circuit, there's no horizontal precedent in the Court of Appeal, so that's perfectly fine.

So, initially, all I was going to say was after today's opinion, this clearly becomes a matter as to which the California Supreme Court should grant review. The issue -- pretrial reductions of wobblers -- happens not infrequently, and now you have two opinions with directly contrary holdings. You don't want the law to depend entirely on what panel you happen to draw, so, sure, go ahead and grant review and figure it out.

Simple.

But then I looked up the earlier opinion. From the language of today's opinion, I had assumed that, as usual, it was from another district. ("We disapprove of the holding in Bartholomew.") But when I looked up the earlier opinion, I noticed that -- unmentioned by today's opinion -- it was from the same district; the Second. Not crazy unusual, since Los Angeles is a big county (plus Ventura, Santa Barbara, and San Luis Obispo), with lots of different divisions. But then I also noticed that the prior opinion was also from the same division in the Second, the Sixth.

Now, that's really unusual.

But then it got even weirder. Because the majority opinion repeatedly notes that there was a dissent in the earlier opinion, and often quotes it. Okay. That's, again, not uncommon with horizonal splits. But what the opinion today never expressly mentions is that the dissent in that earlier opinion -- published ten months ago, I might add -- was the same justice who authors today's opinion: Justice Yegan. You only find that out if you compare the opinion's parenthetical mention of the dissent ("A dissenting opinion contended that an appeal is permissible under these two subdivisions. (Bartholomew, supra, at pp. 780-785, dis. opn. of Yegan, J.)") with the last two words at the end of today's opinion ("YEGAN, J.").

I understand that authors often like to refer to themselves in the third person. But I think it bears mention at least somewhere that you were the dissent in that prior case. And that when the author says, as today's opinion does, that "We conclude the dissenting opinion is correct," that you're talking about yourself.

Yeah. Shockingly, the author believes that he's right.

But it gets even weirder.

I then look at the other justices. The author of the prior (November 2022) opinion was a retired judge from SLO sitting by designation. So obviously he's not on the panel for today's opinion. But Division Six only has four active judges, so there's often (though not always) some overlap. In the prior opinion, Justice Gilbert joined the majority. So I assumed that Justice Baltonado and/or Justice Cody from the Sixth -- and/or someone sitting by designation -- were on the panel and joined today's opinion to make it unanimous.

Justice Baltonado: Yep. On today's panel. Justice Cody? Nope. Someone sitting by designation? Nope.

Instead, Justice Gilbert was on both panels and in the majority in both cases. So he joined the majority opinion in Bartholomew ten months ago, over Justice Yegan's dissent, but today, joins Justice Yegan's opinion that says that Bartholomew was wrong.

With no concurring opinion to explain the changed vote.

I know that things get weird sometimes when you don't have horizontal precedent, and the whole stare decisis thing in the Court of Appeal is definitely different than what you see in the federal system. But I don't recall seeing a justice change their vote so rapidly before. Much less without explanation.

In short, the more I read this opinion, the more things got curiouser and couriouser.

(Regardless, what I said at the outset still holds: the California Supreme Court should grant review in short order and decide what the correct rule is.)

U.S. v. Eckford (9th Cir. - Aug. 15, 2023)

Judge Bybee's opinion reads exactly like it's written by the former professor that he is. A scholarly recitation of precedent and how to synthesize it.

R.W. v. Columbia Basin College (9th Cir. - Aug. 14, 2023)

You're not going to find anyone who's more personally invested in the subject of today's Ninth Circuit opinion than me. Trust me on that one. I care deeply about being informed when a student self-reports themselves to mental health authorities for homicidal ideation about killing one of their professors, and have personal experience with the subject. I am in full agreement with (1) the authorities informing the (potential) target of the threat against their lives, and (2) the University taking the matter seriously and attempting to protect the professor.

But if what's in the opinion accurately recites what went down here, I gotta say, I'm disappointed.

A nursing student had intrusive thoughts about killing three of his professors. So he did what I'm sure we all would want him to do -- he went to a doctor, told him about these thoughts, and voluntarily agreed to be admitted to a mental health facility, where he stayed for four days. After treatment, his doctors agreed when he was discharged that the student presented no threat to himself or others.

So far, so good, right? Exactly how we would want the thing to play out.

Eventually, word leaks back to the student's school -- Columbia Basin College -- that the student had these thoughts. The opinion doesn't say how the college found out, but I'm fairly sure that the doctors told the professors about the student's homicidal ideations, at which point one or more of the professors -- understandably -- told the college.

At that point, the college (1) barred the student from campus, (2) failed him in all his ongoing classes, and (3) expelled him from the nursing program.

That seems super harsh. As well as counterproductive to any effort to make sure that students self-report if they ever have similar intrusive thoughts. (Which is something we really, really want.)

The student sues, and since it's a state-sponsored college, there's an 11th Amendment problem, which ultimately leads (in an earlier opinion) to the Ninth Circuit finding that qualified immunity exists on the student's claim for damages. As a result, all that's left is the student's claims for injunctive relief; that he be permitted to finish nursing school, and that his failing grades and college discipline be removed from his transcript.

Knowing only what I know from the opinion, were I the college, I'd be more than fine with that. Maybe I would be super careful about security. But the student self-reported, never harmed anyone, and never even made a public threat to harm anyone. If he's indeed okay at this point, what's the harm in letting him finish nursing school if he can indeed master the subjects and competently treat patients?

Instead, the college continues to litigate the case. A lawsuit that's now gone on for five years, and counting.

The college continues to have all sorts of procedural challenges to the lawsuit, but the Ninth Circuit largely rejects the college's (second) interlocutory appeal. As well as awards costs to the student.

The lawsuit's far from over. But my hope is that it doesn't continue much longer. There's got to be a way to successfully resolve this thing in a manner that's far less wasteful of private and public resources than continued litigation. The lawsuit's already gone on far too long, IMHO.

Don't think about killing your professors. If and when you do, seek help. And if and when a student does so, if you're a college, try to help them further.

That seems like the appropriate way to go.

In re Marriage of Cole (Cal. Ct. App. - Aug. 11, 2023)

I could introduce today's opinion in a couple of different ways. I could potentially describe it as an example of why some people really dislike attorneys. Alternatively, I could perhaps describe it as a cautionary tale for anyone who might be thinking of marrying a lawyer. Maybe both.

But at least if you take Justice Fujisaki's factual recitations as accurate, the attorney here -- Scott Cole -- doesn't come off looking all that great.

"Scott and Kikianne [Cole] dissolved their marriage in 2015, and a “Judgment and Marital Settlement” was entered by the court. In November 2019, the parties entered a stipulation and order requiring Scott to pay Kikianne child support in the amount $7,537 per month for their two minor children. The order also required that Scott pay bonus child support in accordance with a bonus wages report table, capped by Scott’s gross employment earnings of $2 million per year.

For calendar year 2020, Scott’s child support obligations totaled $90,444 ($7,537 x 12 months). Although Scott paid child support for the months of January, February, and March 2020 (totaling $22,611), he stopped making payments in April 2020 without Kikianne’s stipulation or an order of the court.

In May 2020, Scott filed a request for an order modifying his 2020 child support obligations. As the sole shareholder and director of his law firm, Scott Cole and Associates (SCA), Scott alleged that his firm encountered severe economic challenges due to the COVID-19 pandemic and that he had stopped taking a salary from SCA as one of several measures to keep his business afloat. He requested that the court suspend child support payments or set payments to zero.

In opposing the modification request, Kikianne contended that Scott maintained assets, income, and access to funds in excess of $20 million and that he essentially failed to disclose all available income to pay child support. . . .

The trial court subsequently issued a proposed decision, to which Scott lodged objections and claims of error. Thereafter the court issued a final written statement of decision with rulings on Scott’s objections and claimed errors. In making its rulings, the court indicated it found Scott’s testimony “largely unbelievable” concerning his personal finances and transactions. Specifically, the court observed that Scott had little recall of specific and significant facts related to his personal finances and that he was evasive and often impeached by other evidence when questioned about the value of his real estate holdings, the value of his Morgan Stanley investment portfolios and financial holdings, and details of other financial transactions including a loan application he signed in 2019. . . .

The evidence showed that, from 2017 through 2019, Scott reported his salary from SCA as follows. In 2017, Scott received a salary of $11,126,167. In 2018, Scott received a salary of at least $578,767. Although no tax return for 2019 appears in the record, Scott claimed a base income of approximately $117,000 per month ($1,404,000 for the year) in a residential loan application that he signed on October 11, 2019. Scott also stated in that application that he had total assets (stocks, bonds, real estate) worth $6,419,040 and a net worth over $4 million. . . .

For 2020, the year at issue here, Scott reported salary income of $100,000 on his tax return. But there was also evidence that in 2020, SCA maintained $1.4 million in reserves for law firm operating and capital expenses, and the court so found. . . . Here, the court determined that Kikianne “proved, by substantial evidence, that [Scott] has significant net worth, assets, income and earning capacity available to pay” his 2020 child support obligations. Such proof included the evidence that: (1) Scott voluntarily and substantially slashed his salary to $100,000 even though his earning capacity was much higher and SCA has sufficient non-operating reserves to at least cover the $90,444 he owed for child support; (2) in lieu of Scott’s taking a larger salary to meet his personal and family expenses in 2020, Scott and his current spouse evidently covered such expenses in part by taking distributions totaling at least $977,000 from their non-retirement Morgan Stanley accounts; and (3) Morgan Stanley accounts paid at least $387,245 of Scott’s personal and business credit card expenses in 2020. On this record, substantial evidence supports the trial court’s departure from the statutory guideline amount and its denial of Scott’s modification request."

One more quote:

"In its statement of decision, the court commented, “It is unfortunate that an experienced, successful attorney with considerable financial assets and holdings has undertaken vigorous litigation to deprive his children of the support that they require to maintain their status in life. At this point in the litigation, the Parties have spent more money litigating this case than the amount of support that is owed to the Parties’ children. The people who suffered most during this ordeal are the [Parties’] minor children.”"

That was the basis, in part, for the trial court's award to the ex-wife of over $120,000 in attorney's fees. An award that the Court of Appeal affirms, and also awards additional costs to the ex-wife on appeal. 

There are, of course, always two sides to a dispute. But on the record articulated by the opinion, Mr. Cole comes out looking fairly poorly in this one.

 

Metabyte, Inc. v. Technicolor S.A. (Cal. Ct. App. - Aug. 9, 2023)

The appeal involves a complicated issue about when you get equitable tolling of the statute of limitations for particular types of foreign proceedings. Justice Stratton begins the opinion by saying:

"In a case which seems destined for the pages of a civil procedure casebook, Metabyte, Inc., appeals from the trial court’s judgment of dismissal and order sustaining Technicolor’s demurrer without leave to amend. . . ."

It's a very detailed and coherent opinion. That said, I read (and assign) a lot of civil procedure casebooks, not only for my first-year Civil Procedure class, but also for the upper division classes I teach (California Civil Procedure, Pretrial Practice, etc.). So I feel somewhat qualified to make the following prediction:

This opinion will not, in fact, be included in any future civil procedure casebook. It's smart and detailed and maybe should be. But it's about a particular niche that doesn't arise that often. So while I'm certain it will be cited in an ALR or a law review article or something like that, as well as in future Court of Appeal opinions, I don't think many law students will be reading the thing anytime soon.

Still, a neat little opinion, and I learned something from it.

Infinity Select Ins. Co. v. Superior Court (Cal. Ct. App. - Aug. 8, 2023)

Who do you think is right in this one; the trial court or the Court of Appeal?

I can distill the basic facts fairly concisely. Insurance Company issues a policy to Insured that covers a RAM 3500 truck that weighs over 10,000 pounds. California's mandatory minimum insurance law says that if you have a truck (as here) that weighs over 10,000 pounds, the minimum level of insurance is $750,000. Insurer, which knows that the RAM truck is over 10,000 pounds, nonetheless issues a policy with only a $50,000 limit. Insured later drives the RAM truck and kills someone. Insurer pays $50,000, but the Victim (and Insured) say the coverage is the $750,000 minimum.

Does the insurance company have to pay only the $50,000 figure that the policy sets forth, or does it have to pay the $750,000 statutory minimum?

On the one hand, the policy expressly says what its limits are -- $50,000 -- and the insured could at least in theory have bought 15 different $50,000 policies and "stacked" them to satisfy the $750,000 minimum. On the other hand, when it issued the policy, the Insurer also gave the Insured a standard "proof of insurance" form required by law that stated (falsely) that the policy satisfied the statutory minimum, and the policy also contains a provision that says that if there's anything in the policy that conflicts with California law (e.g., the minimum insurance rules), then the policy is "hereby amended to conform to such statutes."

The trial court goes one way, but the Court of Appeal goes another and reverses. On which side of the argument do you fall?

Think about it.

Think about it.

Think about it before I tell you which side ends up winning.

The Court of Appeal agrees with the insurance company, and sets the limit at $50,000.

I think there are good arguments on both sides here, and that the right result is much, much closer than Justice Franson's opinion makes it out to be. Yes, I know, the policy says what it says, and it's primarily the insured who's required to have the requisite amount of insurance coverage, and it's possible at least in theory that the policy here could have been part of a $750,000 "package" of insurance that satisfied the statutory minimums.

But I nonetheless have a very keen sense of what went on here. The insurer knew that the RAM truck was over 10,000 pounds (they all are) and hence knew -- or definitely should have known -- that the statutory minimum was $750,000 in coverage. But it also knew that such a legally required policy was going to be hugely more expensive than a routine consumer $50,000 policy, which was all that the customer here (which didn't know about the 10,000 pound rule) wanted. The customer wanted a cheap policy and a "proof of insurance" form that it could show to cops and anyone else, so rather than lose the sale, the insurance company sold him the thing and issued the (false) proof of insurance.

If you let that happen -- as the Court of Appeal does -- then plenty of people will do precisely that. And, as here, the person who suffers will be a third party (the victim), who -- as here -- doesn't get paid even a smidgeon of her injuries and medical (or, as here, funeral) bills, because the insurance caps out at $25,000 per person and $50,000 total and the people who own and drove the car are (as here) judgment proof.

Plus, I've got a great little business model after today's opinion. I'm going to start writing auto insurance policies that provide $5 in coverage even though the statutory minimum is $15,000. They'll be super cheap, since they provide basically no coverage, but I'll nonetheless issue proof of insurance forms that you can show to the cops if they pull you over and ask for proof of insurance. So I'll get lots and lots of customers. True, if the Department of Insurance ever catches on to what I'm doing, I might be in trouble -- maybe they pull my license (shucks!) or slap me with other penalties. 

But even then, I'll just say, as the Court of Appeal does here, "Oh, sure, I knew my policy only provided $5 in coverage and the statutory minimum is $15,000, but it's possible that my customers were self-insuring for the additional $14,995, or buying 3,000 $5 policies and 'stacking' them to satisfy the minimum. That's the insured's burden to meet the minimum, not mine. Take it up with the Legislature if you want a different rule, but what I'm doing is totally legal."

Right?

Last v. Last (Cal. Ct. App. - Aug. 2, 2023)

My only thought here is that if this opinion is correct, jurisdiction in family law court must be quite a bit different than in regular civil court.

Michelle and Peter Last get married in 2002 and file for divorce in 2021. Before getting married, they signed a prenup, in which Peter agreed to give Michelle various monies and in return Michelle agreed to waive spousal support ("alimony") in the event they got divorced. Assuming the parties dotted the i's and crossed the t's, that prenup would be valid and enforceable.

During the divorce proceedings, Michelle asked for temporary spousal support. To be clear: she was the one filing the motion. Peter, in opposition, replied that no spousal support was due since the parties had signed a prenup that so stipulated. Michelle, in reply, said that the prenup was invalid because Peter was rich and she was relatively poor.

To decide whether the prenup is valid, the trial court has to make five particular statutory findings. But at the hearing, the trial court never decided whether the prenup was valid at all. Instead, it ordered $8,511 in temporary spousal support to Michelle, and said that it'd work out later whether the prenup was valid -- and, if it turned out that it was, that Michelle would likely have to pay back the money.

At which Peter files an appeal.

In a fairly erudite opinion, Justice Sanchez affirms. (Technically, to avoid difficult appellate jurisdictional issues, the Court of Appeal treats the appeal as a petition for writ of mandate, which it then denies, but the effect is the same.) Justice Sanchez says that prenups are presumed invalid under the statute and are only valid if five particular findings are made by the trial court, and since the trial court here didn't make any of those findings, it's presumed invalid, so the award of temporary support is fine. And that, if it turns out the prenup is valid, yes, Peter can get back the money at the end.

Logical enough, as far as it goes.

But here's the part that confuses (and somewhat worries) me. Justice Sanchez says:

"When the trial court heard Debra’s RFO it did not have jurisdiction to conduct a facial review of the Premarital Agreement and make findings under section 1615(c). The court had jurisdiction only to decide the matters set for hearing that day, which were Debra’s RFO, which sought temporary spousal support and need-based attorney fees, and Peter’s responsive declaration, which sought bifurcation of trial on the validity of the Premarital Agreement and a continuance of the hearing on spousal support."

Really?

It's true that Peter never filed his own motion that said "Decide if the prenup is valid and make the required findings." But in response to Michelle's motion, Peter very clearly said "No, don't grant spousal support, because we have a prenup that waives support." Accordingly, the only issue at the hearing was whether the prenup was valid: Michelle said it wasn't, and Peter said it was. And Peter went ahead and submitted the prenup to the Court, which seems fairly clearly (the Court admits) to contain all of the five things that the statute says it has to contain in order to be valid.

Doesn't that give the court jurisdiction to decide if the prenup is valid, even though there's no separate motion?

To a regular old civil litigator like me, that's your defense to the motion, and the court has jurisdiction to decide whether that defense is valid. Even if you don't make your own motion. For example, if plaintiff files a motion for a preliminary injunction, and I respond: "No, don't grant the motion, the plaintiff has already settled this dispute; here's the settlement agreement he signed," surely the court won't say "Oh, sorry, you didn't file your own motion to declare the settlement agreement valid; injunction granted." How is it any different here?

I'd think that the introduction of a defense (as here) necessarily grants the court jurisdiction to resolve the merits of that defense, including (as here) the validity or invalidity of that defense.

I was thinking that, maybe, family law court is perhaps different in that regard, so I looked up the only case that the Court of Appeal cites for its "no jurisdiction" holding. But that's not a divorce case at all, and is instead a normal writ proceeding that merely holds that when the petitioner asks only for X in its writ (there, to not produce some documents), the trial court doesn't have jurisdiction to grant petitioner an alternative, Y, that the writ petition never requested (there, to redact the documents instead). That's world's apart from the present case. Indeed, the Court of Appeal there repeatedly said that the court's jurisdiction is limited to any relief "encompassed within the issues raised by the petition." It seems here that the "issues" raised by Michelle's request (alongside Peter's defense) clearly include whether the prenup is valid; indeed, that's basically the only dispute between the parties at all on this score.

Would it have been clearer if Peter had expressly said in his opposition: "Please make the five findings necessary to declare the prenup valid?" Sure. But even without such an express statement, that clearly was his defense. So I'm not really sure that there was no "jurisdiction" to make these findings.

(I could potentially see an argument that Peter waived any request to have the prenup declared valid if the Court of Appeal thought that his opposition didn't set forth the required facts, or affirmatively said that he didn't want that relief now, but given that the prenup was his only defense, I'm not confident that that's what he really was doing.)

Anyway, those are my thoughts on jurisdiction for now.

Just one more thing on the merits. Clearly Peter is not far from poor, since the temporary support that was ordered was over $8000 a month. The opinion recites the details of the prenup: "(1) Debra waived the right to receive spousal support or alimony from Peter; (2) in consideration for the spousal support waiver, Peter agreed to pay Debra the following: (a) the sum of $16,000 within three days of their marriage as Debra’s separate property, (b) $3,500 upon completion of each of the seventh, eighth, ninth and tenth years of marriage ($14,000 total), and (c) $4,500 upon completion of each of the eleventh, twelfth, thirteenth, fourteenth and fifteenth anniversaries ($22,500 total); and (3) all equity in Peter’s separate property residence was transmuted by Peter into community property."

Doesn't that seem chintzy to you? Like, super chintzy? Admittedly, I don't know how much the house ("separate property") was worth, or how much equity was in it. But $3,500 or $4,500 a year for the whole marriage, even if (as here) they're married for 15+ years?! 

It almost seems less insulting to give the (prospective) spouse nothing.

People v. Del Rio (Cal. Ct. App. - Aug. 2, 2023)

"Sure, I committed a double murder back in 1977, was convicted of it, and my conviction was affirmed on appeal. But guess what? That was 45 years ago, and you guys in San Diego can't find the trial transcript at this point. So you can't prove that I personally committed the murders, which means I get released!"

Court of Appeal: "Yep. That's right."

I certainly hope that they lose the trial transcript if I ever commit a double murder as well. Wow.

Just a hint: You might want to hang on to this stuff. Kinda important.

Earley v. WCAP (Cal. Ct. App. - Aug. 1, 2023)

Here's something about a timeline that I didn't previously know anything about. (Though that's perhaps not surprising, since I don't do workers' compensation cases.)

If you don't like how the Workers' Compensation Board decides your case, you can file a petition for reconsideration. That's not surprising; many tribunals have a similar principle. Since it's California, the statute also gives a timeline not only for filing such petitions, but for the Board to act on them as well. The Board has 60 days to rule on the petition for reconsideration, and if it doesn't do anything during this time period, the petition is deemed denied.

Again, not unusual.

But the Board often feels like taking more time than the statutory 60 days. So here's what it does: During the 60 day period, it files a boilerplate "grant for study" order. These orders all say the exact same thing:

“Taking into account the statutory time constraints for acting on the petition, and based upon our initial review of the record, we believe reconsideration must be granted to allow sufficient opportunity to further study the factual and legal issues in this case. We believe that this action is necessary to give us a complete understanding of the record and to enable us to issue a just and reasoned decision. Reconsideration will be granted for this purpose and for such further proceedings as we may hereafter determine to be appropriate.”

How often does it do this, you might ask? A lot. Between 2015 and 2019, the Board entered these orders in response to 19% (roughly a fifth) of petitions for reconsideration. And during the COVID years, the Board entered these orders in response to 38.5% of petitions (i.e., over 3/8th of petitions).

That's a neat little trick to get more time. (Notwithstanding a Legislative mandate.) Moreover, the Board has been using this trick for some time; at least since 1913. Finally, by "more time," we're talking about a fair piece of time in addition to the statutory 60 days. "The time between the filing of the grant-for-study orders and the Board’s final decisions ranged from five to 21 months."

Nonetheless, the trick used by the Board works. Except for one problem. The statute also says that any grant of a petition "shall state the evidence relied upon and specify in detail the reasons for the decision." Technically, grant for study orders involve "granting" the petition, but does the boilerplate statement accompanying these grants sufficiently state the evidence and reasons for the decision?

The Court of Appeal says: "No." Rubber stamp explanation aren't good enough. You have to actually give reasons. Particularized ones.

Which does seem to me what the statute requires. Though I might have taken a different view if the Board was only doing stuff like this in, say, one case in a hundred (or thousand). Then the rubber stamp that the Board currently uses might be good enough for me.

Let me add one more thing, though. I thought that it was somewhat funny (ironic?) that the Court of Appeal was being so strict about the relevant statutory timeline here given that it routinely uses a very similar trick to avoid the statutory deadlines imposed on it by the Legislature. As most of you know, the California Constitution (and a supporting statute) requires that judges decide cases within 90 days of their submission, on penalty of the judge not receiving their salary. So how do state court appellate judges solve this problem? By taking however long they want to "tentatively" decide a case and write an opinion, and then only "submitting" the case on the eventual date of oral argument. Deadline solved, even if the appeal itself drags on for years and years and years.

Oh, and on occasion, when there's been an oral argument and the 90 day clock is about to expire, state court judges sometimes do what happened here: They simply "reset" the clock by vacating submission and resubmitting the case sua sponte. With a boilerplate order that looks awfully similar to what we are insulting the Board for doing in this opinion. ("Pursuant to California Rules of Court, rule 8.256(e)(1), submission of the above entitled matter is hereby vacated and the cause resubmitted as of this date for the period allowed by law, in order to allow the panel additional time to consider the presently circulating opinion.")

In short: Do what we say, not necessarily what we ourselves (basically) do.

With the caveat that, yeah, technically, that's what the statute says.

Raidoo v. Moylan (9th Cir. - Aug. 1, 2023)

There last doctor in Guam who was willing to perform an abortion there retired in 2018. So the only way you can get an abortion in Guam these days is (1) to do it medicinally, (2) through telemedicine (there are a couple of doctors in Hawaii who are willing to do this).

Guam passed a law, though, that says that in order to have any abortion, you have to receive "in-person" information about various social services, etc. Plaintiffs say: "But, in Guam, since there's no one here, this basically means that no abortions are allowed, period."

The district court entered an injunction against the law. Today, the Ninth Circuit reverses.

I strongly suspect that the plaintiffs are correct that this practically operates as a categorical ban on abortions in Guam. And it's not exactly possible for someone in Guam to get in a car and drive to another state that allows abortions.

The Ninth Circuit panel here consists of Judges Bea, Collins and Lee; appointees of President Bush, Trump and Trump (respectively).

Not exactly the greatest draw for the plaintiffs, eh? 

People v. Gruis (Cal. Ct. App. - Aug. 1, 2023)

It's amazing how disparate sentencing can sometimes be between federal and state court. In federal court, you will routinely see opinions that involve 30- (or 40- or 100-) year sentences for possession of child pornography. Whereas, today, in state court, you read an opinion in which the defendant is convicted of possession of child pornography -- numerous pictures of a 13-year old daughter of his girlfriend -- and he receives . . . one year in county jail.

That's a big difference.

P.S. - The opinion also holds that it's too vague for a condition of probation to be that the defendant not possess any "pornography" at all. It's a sufficiently indefinite term -- how do you decide what counts as "prurient" sexual content? -- that it "would prevent [defendant] from viewing Oscar-winning films like American Beauty and Brokeback Mountain, television shows like The Wire, or sexually explicit works of art that appear in museums.”