Camenzind v. California Exposition & State Fair (9th Cir. - Oct. 31, 2023)

 Judge VanDyke has a point here.

The question is whether the Cal Expo fairgrounds in Sacramento are a public forum sufficient to allow people to distribute First Amendment literature therein. In this particular case, the plaintiff bought a ticket to the Hmong New Year Festival, started distributing literature, got ejected, and then sued.

Right or wrong, it's fairly clear that there's no right under federal law to distribute literature in a privately owned forum. Here, the fairgrounds were rented by a private party for the festival, so the federal claim doesn't succeed.

But as you may know, California has the Pruneyard doctrine, which is broader than federal law and allows access to private properties (e.g., shopping malls) under California's Free Speech Clause. That's plaintiff's much better argument.

The majority nonetheless rejects it, holding that, as a matter of California constitutional law, the Free Speech Clause doesn't apply to properties in which paid admission is required (unlike, say, a shopping mall).

Judge VanDyke dissents, saying that the majority's test doesn't actually derive from any California cases. He'd remand for more factual development.

As I said, Judge VanDyke has a point. I'm not at all confident that the California Supreme Court would come out the same way here. I might well have certified this one, particularly if the alternative was to create a fairly novel test that might perhaps be supported by some discussions in dicta from lower courts but nonetheless has never been articulated by the state supreme court.

As a tactical matter, I probably would have filed this lawsuit in state court, ditching the federal claim, rather than federal court. The lawyers from the Pacific Justice Institute adopted the opposite strategy, and it didn't work out, either in the trial court (which granted summary judgment to the defendant) or on appeal. Given Pruneyard -- which, I get, was rendered in an era in which California courts were perhaps more strongly free speech oriented than today -- I think that the state court might well have been more solicitous of the state law constitutional claim than federal judges.

Plaintiff can still take its shot in the United States Supreme Court, but I don't think that'll go anywhere.

Tedesco v. White (Cal. Ct. App. - Oct. 30, 2023)

Here's a fairly good primer on how to file (1) a poorly written brief on appeal, (2) that not only loses, but results in the Court of Appeal slamming you in a published opinion.

Here's how Justice Goethals' opinion begins:

"A bulldozer can move piles of dirt from one place to another. But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is appellant Debra Wear’s counsel. In our prior nonpublished opinion, Tedesco v. White (June 15, 2022, G059883) (Tedesco 1), we made clear to these lawyers that “[w]e do not confuse aggressive argument with persuasive advocacy.” Although the aggression has not abated, our view of it remains unchanged."

That's not a good sign if you're the appellant (or her counsel).

In truth, the Court of Appeal is actually fairly nice to appellant's counsel given the underlying briefs and their content. For  example, here are some of the section headings contained in appellants' opening brief, and some of the statements therein:

H. The Court of Appeal and Riverside Court Violate Due Process to Assure Loss of Tedesco's Rights. . . . The Opinion in 4th Civil No. E070316 rested on systematic misrepresentation of the record and absurd misstatements of law. . . . I. Division Two Misrepresents its Own Opinion, Violates Due Process and Statutory Rights, and Denies Hearing on Constitutional Violations and Conservator's Breach of Duty. . . . In an order of June 5, 2020, Justices Ramirez, McKinster and Slough dismissed the appeal on indisputably false grounds. "Our opinion [in Case No. E070316] ruled that non-appointed counsel, Stephen Carpenter, Gloria Tedesco and Debra Wear have no standing; therefore, none of the documents they filed on behalf of Thomas S. Tedesco were properly filed. Our ruling became law of the case and binding on the parties and probate court. Those same orders cannot be appealed to this court again. [2App. 3223]" This was nonsense."

No, those are not the words of a pro se litigant. They're the words of a lawyer: appellant's counsel, Ian Herzog and Evan D. Marshall, of Herzog, Yuhas, Ehrlich & Ardell in L.A.

Not exactly the way to persuade the Court of Appeal. Given that content, Justice Goethals' rebuke of appellants' counsel -- hidden in a footnote -- is actually fairly mild. "In appellant’s opening brief, counsel once again explicitly disparages the integrity of our colleagues in the Fourth District, Division 2. We caution counsel about such tactics."

The Court of Appeal affirms the $6,000 sanction, awards costs to appellees, and moves on.

Fair enough.

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Oct. 26, 2023)

This opinion by Justice Hoffstadt has a ton going for it, and I really like the way he goes about it. I also think it's a fascinating topic, both on the particular issue it addresses as well as a matter of the overarching question of how the common law evolves in California.

It's a topic near and dear to the hearts of many people: gambling debts. Can you sue for them in California courts?

The defendant here, Kevin Long, took a large number of trips to Macau and spent -- and lost -- a ton of money in casinos. He took out $11 million in casino chips and only paid back $1.7 million. So he owes a massive amount of money, so plaintiff sues him in California, which is where he lives.

Will California courts hear that lawsuit?

The Court of Appeal says: No.

Traditionally, California courts didn't enforce gambling debts because gambling was illegal. Obviously, the latter is no longer the case, at least in a ton of areas. Moreover, the gambling at issue here was not illegal. Plaintiff accordingly argues that it makes no sense not to enforce gambling debts incurred in legal gambling, and so the traditional common law rule should change.

Justice Hoffstadt disagrees. He starts the opinion by noting that California generally follows the common law of England (Civil Code sect. 22.2), which has refused to enforce gambling debts since the Statute of Anne. So that's the default rule of decision. Moreover, he holds that there's no reason to change that rule now. Just because California has allowed some gambling doesn't mean we necessarily allow enforcement of gambling debts generally, so lawsuit dismissed.

As I said, there's a lot going for the opinion's analysis. I particularly liked -- and agree with -- the fact that the opinion distinguished between gambling, on the one hand, and gambling debts on the other. The two are not synonymous. It's entirely rational, in my view, to allow gambling, but nonetheless refuse to enforce gambling debts. It's one thing to say that a gambler who has the money to burn in front of him is allowed to gamble. It's quite another, in my view, to say that gambling no more pernicious when the gambler does not have the money and instead is taking out (often ever-increasing) loans to chase his losses. It doesn't take a rocket scientist to know that "gambler's ruin" -- and its effect on both individuals and society as a whole -- is substantially more likely when you're permitted to take out loan after loan after loan from the casino than when you're limited to the cash you brought with you. It makes eminent sense to me to legally distinguish between the two. The fact that we allow one does not necessarily equate to allowing the other. Similarly, the fact that we allow lotteries and the like hardly establishes that we'll enforce gambling debts writ large.

So all that I like, and I think today's opinion makes eminent sense on that front.

I do think, however, that there are a couple of areas in which the opinion could be a fair piece stronger.

First, I think that the argument raised in footnote five is perhaps stronger than Justice Hoffstadt gives it credit. Plaintiff notes, correctly, that California regulations currently allow legal card rooms to extend credit to their customers, with specific limitations. Justice Hoffstadt responds that that doesn't prove that the resulting debts are enforceable. But why allow an extension of credit -- and, even then, in only limited and particularized settings -- if the enforcement of any of those debts is impermissible? To me, that would make no sense. Why not either prohibit loans entirely (or, conversely, allow all of 'em) if none of them can be enforced anyway?

A similar problem exists in footnote six. California precedent currently allows California courts to enforce judgments of other tribunals (e.g., other states) even when those judgments enforce gambling debts. That's not, California courts have held, contrary to our public policy. But if we're going to enforce those debts, why aren't we willing to enforce the debts directly ourselves? Justice Hoffstadt responds that we have more deference (under the Full Faith and Credit Clause) to judgments, and that's true. But there's a public policy exception to that deference -- one that we don't apply with respect to gambling debts. If there's not a public policy reason not to enforce gambling debts in that context, why is there nonetheless a public policy reason to not enforce gambling debts in our own forum? That does not make facial sense: either gambling debts are sufficiently wrong to enforce or not. Justice Hoffsadt doesn't really give a reason, in my view, why direct enforcement in our own courts would be inferior to blanket enforcement by other courts; indeed, having those suits heard in our own courts would allow us to potentially weed out the abusive gambling debts from nonabusive ones, as opposed to simply rubber stamping whatever judgment was rendered by the other jurisdiction.

More fundamentally, what's the point of California's nonenforcement of gambling debts if all the plaintiff has to do is simply sue in a different court (e.g., in Macau, or Nevada, or what have you) and then bring the judgment here, at which point we enforce it? That seems to exalt form over substance.

One final thought. Justice Hoffstadt begins the opinion by stressing that he's following the English common law on this score, which is the default rule under the California Civil Code. Fair enough, and that common law has indeed prohibited enforcement of gambling debts for some time. He also notes on page six of the opinion that our incorporation of English common law includes incorporation of English statutes passed by Parliament. Fair enough. So California generally does what England does.

But here's the thing. Although none of the briefs of the parties seem to mention it, I believe that English law currently does enforce gambling debts, at least since the passage of the Gambling Act of 2005. Yes, before that, contracts related to gambling (including but not limited to debts arising therefrom) were not enforced. But Section 335 of the Act seems to fairly clearly repeal that law and allow their enforcement; moreover, the government of England expressly says that gambling debts can now be legally enforced in English courts.

Given the structure of today's opinion, and its reliance upon English law and California Civil Code 22.2, that seems like a pretty important fact, no? So I'd love to hear how Justice Hoffstadt would deal with it. (Sure, he can say that the parties waived that argument by not raising it, but that just means that the opinion's holding is "good for this case only" and doesn't really answer the broader question.)

Regardless, it's definitely an opinion worth reading, and one with which I have a ton of sympathy. I just still have some questions after reading it -- ones that make me wonder whether I'd be compelled to go the other way notwithstanding my strong personal preferences in this regard.

Snoeck v. ExakTime (Cal. Ct. App. - Oct. 25, 2023)

This is a definite "I've got some good news and some bad news for you" type of case, at least for the underlying lawyer, Perry Smith.

The good news is that he represents the plaintiff and wins the underlying lawsuit, as well as gets awarded attorney's fees. No small win, either. It's a FEHA case, and plaintiff obtains a judgment at trial for a little over $130,000. The attorney fee award is even bigger: over $680,000 in fees, at a relatively hefty hourly rate (for Smith) of $750/hour. That's definitely good news.

The bad news, however, is that Smith wanted even more in attorney's fees: over $2 million, including a 1.75 multiplier. But not only did the trial court refuse to give the requested multiplier, but it also reduced the fee award on a variety of grounds. The largest of which was a 40% reduction based on Smith's alleged repeated "incivility" to both opposing counsel as well as the court.

Not only does the Court of Appeal affirm, but it publishes an opinion that quotes in excruciating detail various instances of incivility by Smith. So not only does the attorney get hit (fairly substantially) in the pocketbook, but is hit reputationally as well.

The opinion is 40 pages. It recounts stuff that, in my experience, is not unprecedented, but nonetheless clearly reflects an attorney who's way overly aggressive in both tone and content. Not only with opposing counsel in emails, but -- particularly cringeworthy -- to both the trial court and the Court of Appeal, orally as well as in writing.

I get that you sometimes hate opposing counsel. Sometimes perhaps understandably so.

But you have to tamp that stuff down. Or at least not go way overboard.

Otherwise you risk something like this.

Plaintiff's counsel now appears to have his own firm, rather than the firm listed on the caption, and the new firm's website lists a lot of positive things that people have allegedly said about Mr. Smith. I suspect, though, that nothing from today's opinion will be included on that same website anytime soon.

People v. Hampton (Cal. Ct. App. - Oct. 25, 2023)

Check out the facts of this armed robbery:

"In July 2014, Hampton began working as a manager at the Rainforest Cafe, a restaurant in the Fisherman’s Wharf area that occupied several floors of a large building. . . . In 2015, about a year into his employment, Hampton asked for time off over the July 4 holiday weekend. After the general manager denied the request, Hampton stopped going to work. Hampton came to the restaurant later in July to pick up his final check, but he did not return his set of keys to the restaurant . . .

Around 1:00 a.m. on Friday, August 28, 2015, another manager, E.S., was in the manager’s office. As was usual, the door to the manager’s office was open. E.S. was sitting in a rolling chair, finishing paperwork, when someone wearing a red motorcycle helmet came up behind him and put their arm around his throat.

The person wheeled E.S. to the safe where the cash was kept, and “made a hand gesture” indicating E.S. should open it. E.S. responded that the safe was time-locked and could not be opened, which was untrue. The person then produced “a silver pistol,” cocked it, and “tapped the safe to . . . indicate that they knew the safe opened.” E.S., who was not familiar with guns, testified that he could not be sure whether the pistol was real or operable. Nonetheless, he was frightened, and he opened the safe, which contained almost $9,000.

The person then rolled E.S. to a corner of the manager’s office, bound his arms, and placed a shirt over his head. It seemed to E.S. that the person was “really slow” and “took their time when they tied [him] up,” which was not done “aggressive[ly].” After several minutes during which E.S. could hear “rummaging,” the person left, having “never said a word.” E.S. was eventually able to free himself and call 911. After doing so, he realized that the cash was missing from the safe.

The Rainforest Cafe had a surveillance system covering much of the restaurant, including hallways and the manager’s office. Recordings from the night of the robbery, which the general manager reviewed with the police, showed a “very stocky, mus[cl]y” person “[w]earing dark clothing, in a motorcycle helmet with a dark shield, so you could not see the face,” enter the building through the Mason Street door. The person proceeded to the third floor and into the manager’s office, where the robbery occurred. 

The general manager testified that it struck him “[h]ow calmly and slowly the person . . . came in the building and how familiar it appeared to be to them,” as they “kn[ew] exactly where to go to commit the armed robbery, where the money would be and on what floor.” The general manager also observed that the person’s “walk and body style” were similar to those of Hampton, whom the general manager described as a “very clean, crisp, very mus[cl]y man, very, very strong powerful man.” Similarly, E.S., who was friends with Hampton, testified that Hampton was “in good shape” and “definitely of muscular build.” 

A nearby business’s surveillance footage showed the suspect, wearing a red motorcycle helmet, enter a white four-door sedan soon after the robbery. At the time, Hampton and his wife had a similar car, a white Nissan Altima. 

Based on the robber’s appearance and familiarity with the building, the general manager suspected the robber was Hampton. After forming this suspicion, the general manager watched surveillance footage from the previous Monday morning, August 24, 2015, at the end of the last night shift before pickup of the weekend receipts later that day. The footage showed a person enter the building through the Mason Street door, check the hallway doors and, finding them locked, turn around and leave. A Rainforest Cafe cook testified that around 1:00 a.m. on that morning, he was outside the restaurant with friends and saw Hampton walking back and forth. The cook then saw Hampton leave in a white four-door sedan. 

The prosecution also presented evidence obtained from Hampton’s cell phone. Hampton sent incriminating text messages to another man leading up to and immediately after the robbery. In addition, other text messages indicated that Hampton paid two significant debts shortly after the robbery occurred."

The jury ultimately convicts Hampton of the robbery. What do you think his sentence was?

Answer: Three years of probation. 

I would have thought the guy would have gotten a much longer sentence. Even in San Francisco.

People v. Shah (Cal. Ct. App. - Oct. 24, 2023)

It's extremely difficult -- but not impossible -- to get a restitution order satisfied even when the convicted criminal defendant owns real property.

Here's proof.

Ross v. Seyfarth Shaw LLP (Cal. Ct. App. - Oct. 20, 2023)

I always read carefully cases in which someone sues a law firm, if only for the "There but for the grace of God" aspect of the thing. Particularly when the lawsuit involves, as here, a relatively well-known firm, I'm particularly interested in both the underlying facts as well as the result.

Here, Seyfarth Shaw prevails, both in the trial court (in which the plaintiffs voluntarily dismissed their lawsuit after receiving the trial court's tentative) as well as in the Court of Appeal (where they get their anti-SLAPP fees increased from the 80% that the trial court granted to the full 100%). So victory for the law firm.

But I also thought it was interesting just how aggressive the plaintiffs were below. Defendants filed an anti-SLAPP motion, and the Court of Appeal's opinion says that "Plaintiffs opposed the motion and submitted declarations and evidence of their own totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs filed a 70-page surreply." That's a ton of pages, particularly the 70-page surreply!

Then there are the briefs on appeal. "Plaintiffs’ opening brief contained approximately 124 headings over 58 pages and their reply brief contained approximately 320 headings over 130 pages. In a few instances, the headings introduce so little as, “[t]he title of this section is incorporated herein by reference,” or even nothing at all. In many others, they are followed by declaratory statements unsupported by legal authority, record citations, or analysis. Further, some factual citations plaintiffs did provide led to material bearing no apparent relation to the propositions cited."

Yeah, that's . . . not good. Aggressive, but not the way to win the hearts and minds of the justices.

So I looked to see who the attorneys were for the plaintiffs.

Ah. Now I get it. They were pro per on appeal. A former linguistics professor at Cal State Fullerton who the university attempted to fire and her spouse. Who are suing the law firm that conducted CSUF's investigation into their harassment allegations and concluded that they were unfounded.

Litigants who represent themselves often get overly wound up in that context. To their detriment.

One last thing. On page 10, Justice Grimes' opinion says: "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed the special motion to strike before it was heard." I'm pretty sure that sentence means to say something like "Plaintiffs argue that fee and cost awards are not mandatory where a plaintiff has dismissed her lawsuit before Defendants' special motion to strike was heard." As Plaintiffs generally don't file (or dismiss) anti-SLAPP motions (and instead dismiss, as here, lawsuits); defendants do.

Acosta v. Mas Realty (Cal. Ct. App. - Oct. 20, 2023)

Imagine how bummed you would be if you were the client (or the lawyer on a contingency fee) and you had a personal injury case in which you went all the way to trial, got a judgment for over $12.6 million, and then . . . saw it entirely disappear in the Court of Appeal, which reverses and directs the entry of a judgment in favor of the defendants.

Ouch.

Martin v. Gladstone (Cal. Ct. App. - Oct. 19, 2023)

Read this opinion by Justice Dato and you'll be able to impress your friends with your knowledge of an obscure 19th century principle called the Barton doctrine and its contemporary breadth.

Or, perhaps, such a task would be an hour of your life that you could nthen ever get back. In that case, maybe just read the first footnote:

"Originating from United States Supreme Court precedent in Barton v. Barbour (1881) 104 U.S. 126 (Barton) and its progeny, the Barton doctrine “requires, before filing a lawsuit against officers appointed or approved by the court, obtaining leave from the bankruptcy court that appointed or approved them.” (Akhlaghpour v. Orantes (2022) 86 Cal.App.5th 232, 238–239 (Akhlaghpour).) We discuss the contours of the Barton doctrine, and its significant statutory exception, later in this opinion."

Yeah. That's probably good enough for now.

Sabbe v. Washington County Bd. of Comm'rs (9th Cir. - Oct. 18, 2023)

You could read the Ninth Circuit's 70-page, single spaced opinion as to whether or not there should be qualified immunity for the police shooting at issue here, and decide whether the majority or dissenting opinion seems more persuasive.

Or you could watch the video of the shooting itself and see what you think.

Of course, to be fully informed, you'd probably do both. But that would surely take more time.

The underlying facts involve a confrontation between a police vehicle that's essentially a tank, on one side, and a pickup truck on the other. After a long standoff, involving a guy who's probably drunk but who has not committed any serious crime yet, the police tank rams the pickup, an officer in the tank says that he heard a shot from the pickup truck, so the officers in the tank open up on the guy in the pickup and shoot him 18 times, killing him.

Judge Berzon, in dissent, calls this "a case study in disproportionate law enforcement response." See what you think.

One of the tough things about cases like this one, in my view, is how you resolve factual conflicts on (as here) a motion for summary judgment. The police officer says that he heard a shot from the pickup truck, which is why the police killed the guy. But the video and bodycam footage doesn't show a shot, nor do you hear one. Presumably the guy in the pickup would have testified that there was no shot, but he's very dead at this point. When only one guy's still alive, does that mean you get the benefit of the assumption that whatever the police office said is true?

The traditional answer is: Yes. Though you can see the potential injustice there. As well as an incentive, perhaps, to make sure that you're the only surviving witness.

The other somewhat interesting thing is the video itself. It's cited in a footnote to the majority opinion, and retained on the Ninth Circuit's website. So when I clicked on it, I expected it to be raw footage.

But it's not. It's instead a news report. "Live from Fox 12 Oregon!" (as the video's opening banner declares). There were reporters circling overhead in helicopters at the time, hence the video. Which is actually of really good quality. So I expected (and appreciated) the video; I just didn't necessarily expect to see all the ancillary reporter details as well when I watched the thing.

FCM Investments v. Grove Pham LLC (Cal. Ct. App. - Oct. 17, 2023)

Wow. The Court of Appeal reverses the arbitration award here based upon a reasonable belief of the arbitrator's bias. The basis of the Court of Appeal's reversal was the arbitrator's belief that one of the parties was not credible in part because he used an interpreter even though the arbitrator felt he could speak English with ease. So there's somewhat of an undercurrent of racism there; no small thing with which to accuse someone.

Moreover, the opinion mentions the arbitrator by name: the Honorable Judith C. Chirlin (retired).

Fortunately or not, Judge Chirlin died last year, so she doesn't see her name in print in this regard. Mind you: she was previously publicly reproved for something she did in a different case, so maybe she would not have been all that concerned about the opinion's effect on her reputation.

Still. I strongly suspect that no one would like getting reversed for this particular reason.

U.S. v. Draper (9th Cir. - Oct. 17, 2023)

I realize it's a decade-old television show, but it was a good one, so I couldn't help but notice the striking coincidence between today's Ninth Circuit opinion and Mad Men.

The defendant's name is Dan Draper. Which is virtually identical to the protagonist's name in the show, Don Draper. What's (the real) Draper in prison for? Killing Linford Dick. Who was the (fictional) Draper? A guy named Dick Whitman who (accidentally) killed Draper and then took his identity.

Quite the coincidence.

Though I admit: Maybe you gotta be a fan.

Lake v. Fontes (9th Cir. - Oct. 16, 2023)

There was little doubt that this opinion would come out any other way.

Kari Lake and Mark Finchem brought suit claiming that Arizona's method of tabulating election results was unconstitutional. They say that the use of electronic tabulation systems is way too vulnerable to hacking. Here's the process they challenge (citations omitted):

"Under the Arizona election system, voters mark their choices on paper ballots, which are then fed into electronic machines for tabulation. Before being certified for use in elections, the tabulation machines are tested by an accredited laboratory and the Secretary of State’s Certification Committee. The certified machines are then subjected to pre-election logic and accuracy tests by the Secretary of State and the election officials of each county. 

After tabulation by machines, the paper ballots cast by each voter are retained for post-election audits and possible recounts. After an election, political party representatives conduct a sample hand count of the paper ballots under the oversight of county elections departments. The counties then perform additional logic and accuracy testing. Arizona law mandates a recount whenever the margin between the top two candidates “is less than or equal to one-half of one percent of the number of votes cast for both such candidates or on such measures or proposals.”

When not in use, the hardware components of electronic tabulation systems are inventoried, stored in secure locations, and sealed with tamper-resistant seals. An electronic tabulation system may not be connected to the internet, wireless communications devices, or external networks and may “not contain remote access software or any capability to remotely-access the system.”"

So what do you think? Do plaintiffs win?

Of course not.

The panel holds that the plaintiffs lack Article III standing. Among other things: "Plaintiffs simply have not plausibly alleged a “real and immediate threat of” future injury. City of Los Angeles v. Lyons, 461 U.S. 95, 103 (1983). Rather, as the district court noted, they posit only “conjectural allegations of potential injuries.” Lake, 623 F. Supp. 3d at 1032. Their operative complaint relies on a “long chain of hypothetical contingencies” that have never occurred in Arizona and “must take place for any harm to occur—(1) the specific voting equipment used in Arizona must have ‘security failures’ that allow a malicious actor to manipulate vote totals; (2) such an actor must actually manipulate an election; (3) Arizona’s specific procedural safeguards must fail to detect the manipulation; and (4) the manipulation must change the outcome of the election.” Id. at 1028. This is the kind of speculation that stretches the concept of imminence “beyond its purpose.” Lujan, 504 U.S. at 564 n.2. Plaintiffs’ “conjectural allegations of potential injuries,” Lake, 623 F. Supp. 3d at 1032, are insufficient to plead a plausible “real and immediate threat of” election manipulation, Lyons, 461 U.S. at 103."

Not a surprising result. At all.

Vargas v. Gallizzi (Cal. Ct. App. - Oct. 13, 2023)

You don't see many appellate cases that actually award fees for a party's refusal to admit RFAs. In part that's because very few cases go to trial, and in part that's because trial courts have lots of discretion to find that the denial was 'substantially justified'.

But if you want a case with which to credibly threaten the other side if they say "Deny" to one of your requests for admission, here you go.

Courtesy of Justice Perluss.

Meyers v. Birdsong (9th Cir. - Oct. 11, 2023)

Anything less than the result here would seem completely unfair, no?

Leon Meyers is incarcerated and files a federal Section 1983 lawsuit against the Salinas Valley Medical staff and officials. He loses, and files an appeal with the Ninth Circuit, but doesn't have money to pay the $505 filing fee. So he requests and receives in forma pauperis status.

But later, the government moves to revoke Meyers' IFP status and dismiss his appeal because multiple prior lawsuits of his had been dismissed on the pleadings or as frivolous. The Ninth Circuit agrees, and orders Meyers to pay the filing fee or have his appeal dismissed. Meyers doesn't pay, so his appeal is dismissed.

Which is fine. That's what the law requires, and is the way these things work.

But here's the rub:

There's a law that says prisoners who get IFP status will have the filing fee taken out of their prison trust account through tiny monthly withdrawals. Which the government starts doing, even though the appeal has been dismissed. After several years, the prison has withdrawn the whole $505, at which point Meyers says: "Dude! I've now paid the entire filing fee. Either reinstate my appeal or give me my money back!"

At which point the government says: "No. We're not reinstating your appeal. Or giving you your money back, either."

Which seems profoundly unrighteous to me.

The Ninth Circuit adopts a similar view. It refuses to reinstate Meyers' appeal -- after all, the mandate has issued long ago -- but orders the prison to refund his $505. He didn't get to appeal. So he doesn't have to pay the filing fee. Makes sense.

P.S. - Can I also just quickly point out that California opposed Meyer's briefed and argued this appeal -- with five different lawyers from the California Solicitor General's office and the Attorney General's office -- over the whopping sum of $505. I'm not sure that was the most rational expenditure of public resources in the history of mankind. Maybe just give the guy his money back in the first place, and let the guy buy some Ramen noodles in the prison commissary?

 

U.S. v. Idaho (9th Cir. - Oct. 10, 2023)

This should surprise no one.

Idaho passed a law that criminalizes most abortions and said it would take effect if and when Roe v. Wade was overruled. Dobbs gets decided in 2022, so the statute takes effect 30 days later. The United States sues Idaho, claiming that its statute is preempted by federal law; in particular, 42 U.S.C. § 1395dd, which is the Emergency Medical Treatment and Labor Act.

The district court enters a preliminary injunction blocking the law, Idaho appeals, and the case goes to the Ninth Circuit. Idaho moves to stay the district court's order -- basically, asking to let the state law go into effect -- and that motion gets decided by a panel consisting of Judges Bade, Lee and VanDyke, all of whom (as you may know) are Trump appointees.

Two weeks ago, the panel granted the stay, holding in a published opinion that the Idaho statute banning abortions is not preempted and that the state would be irreparably harmed by putting a hold on the law.

Today, the Ninth Circuit takes that opinion en banc. Which in turn vacates the panel's order.

Perhaps there has been a faster en banc vote in the Ninth Circuit's history, but if there is, I don't recall it.

Which side ultimately prevails en banc will depend a lot upon the draw. But the en banc panel will most definitely have a more mixed draw than the original panel.

In re Jose C (Cal. Ct. App. - Oct. 9, 2023)

I'm not uniformly successfully, but I try to post every single day about an opinion that came out earlier that day. Unfortunately, there are days like today, in which (1) the Ninth Circuit published nothing, and (2) even as of 5:20 p.m., the only thing that the Court of Appeal has published is this opinion: a seven-page opus by Justice Perluss about mootness that's 100% correct.

So if you want to read a very brief opinion that's clearly right about a topic that's not especially interesting, go crazy with the thing. Otherwise, tomorrow's a new day, and here's hoping that something controversial - or at least worthy of comment -- gets published.

Historic Architecture Alliance v. City of Laguna Beach (Cal. Ct. App. - Oct. 6, 2023)

Would I love the ability to live in a century-old home in Laguna Beach that is, by all accounts, absolutely gorgeous? Yes. Yes I would. 

Would I enjoy having to go through all the many steps required to remodel that house -- including getting City approval, dealing with a CEQA appeal, etc.? No. I would not.

Nonetheless, is it worth it? Especially when, as here, the homeowner wins, and gets to remodel the place?

Absolutely.

P.S. - The opinion doesn't contain the address of the relevant property, but it's in the brief, and here's the home. Amazing. (Oh, and worth over $4.4 million. Even before the remodel and additional 1,000 square feet of living space now authorized by the Court of Appeal. It's nice to be rich, eh?)

U.S. v. Scott & Scheu (9th Cir. - Oct. 6, 2023)

The Ninth Circuit issued two published opinions today: this one and this one. Coincidentally, both of them involve federal prosecutions of individuals for sexually abusing minors on an Indian reservation, and in both of them, the defendant received a lengthy sentence (17+ years in the case from Arizona and 10+ years in the Montana case).

I'm not someone who's particularly sympathetic towards someone who sexually abuses children. That's doubly true when, as here, there's violence involved. It's hard to really care about the defendant -- pretty much at all -- when one's sympathy (like mine) is so strongly on the side of the victims.

That said, I had a thought today as I read these two opinions that I had never had before, notwithstanding the horrible nature of the crimes here. The thought was this:

Amongst the (many) downsides of living on an Indian reservation is the fact that any major crimes for which you're charged get prosecuted in federal court, which is substantially -- substantially -- tougher than state court. The AUSAs are so much better funded, the prosecutors are so vigorous, the sentences are so long, and (critically) in federal court you've got to actually serve at least 85% of your sentence whereas in state court you generally only serve half (with good behavior).

It almost seems like piling on; just adding to the indignities and practical harms that arise from relegating Native Americans to isolated reservations.

Now, again, in these particular cases, I get it, it's hard (even for me) to care that much, given the nature of the crimes.

But I nonetheless had the thought: "Man, I'm glad I don't live on a reservation."

(Though, of course, none of this whole sentencing stuff matters if you don't commit any crimes. That said, there's the whole "there but for the grace of God" stuff . . . .)

Hansen v. Volkov (Cal. Ct. App. - Oct. 4, 2023)

I'm glad that Justice Perluss decided to publish this opinion. I knew even before reading it that lawyers sometimes get testy with each other, and that (perhaps) family law cases are sometimes even worse than others in that regard given the underlying emotions of the parties.

But I didn't realize that one strategy for dealing with an abusive and/or "creepy" opposing counsel was to get a civil harassment restraining order against him. Or that, as here, a trial court would actually grant one for conduct that, while undeniably uncivil (and wrong), wasn't massively qualitatively different than what many attorneys (unfortunately) deal with from the other side every day.

So (1) I appreciate the guidance to trial courts to (essentially) think twice before granting harassment orders involving opposing counsel who don't get along, and (2) making public the conduct here. Because everyone involved should have chilled out. A ton.

Nash v. Aprea (Cal. Ct. App. - Oct. 3, 2023)

Its a big deal not to respond to a complaint.

Tenant rents a house from Landlord for six months for $8,000/month. Tenant thereafter alleged finds some mold in the place, so Landlord gives 'em a $8,000 credit. When Tenant moves out, Landlord doesn't give back their security deposit, or the $8,000 credit, so Tenant sues.

Now, most likely, Landlord's maybe going to be liable for the security deposit and the $8,000 credit, but probably not the mold. Regardless, it's a tiny lawsuit; maybe $20,000 or so.

But the Landlord does not appear, even after being personally served. So Tenant gets a default judgment for $59,000. Which is a lot, and probably a fair piece more than Landlord was going to get spanked with were she to have responded to the lawsuit.

But it doesn't end there.

The $59,000 default judgment included $1,000 in attorney's fees. Which is the cap on attorney fee awards under the contract, and probably about what you'd get for a default judgment -- which doesn't involve much attorney work -- anyway.

But Tenant doesn't pay the judgment, and affirmatively fights it, which results in Tenant running up more attorney's fees to enforce the thing. Because the contract allows the prevailing party attorney's fees, those enforcement efforts also allow the prevailing party to get those fees as well. Tenant says such fees are also capped at $1,000, but both the trial court and the Court of Appeal disagree.

So now, in addition to the initial $59,000, the trial court adds on an additional $27,000 in fees to enforce the initial judgment.

But it doesn't end there.

Because Landlord appealed the additional $27,000, and lost, at the end of the Court of Appeal's opinion, it says: "[Tenants] are to recover their costs on appeal."

So that's more money. A fair piece, I'd expect.

Virtually all of which, I suspect, could have been avoided had Landlord adopted an alternative strategy at the outset to the one she did.

U.S. v. Cabrera (9th Cir. - Oct. 2, 2023)

I understand and appreciate that illegal entry in the United States is a crime, and that the defendant here is not extraordinarily sympathetic because he's previously been deported.

But here, everyone agrees that this is what he did: "In 2019, Cabrera went to Tijuana and climbed one of two fences separating Mexico from the United States. Cabrera did not attempt to climb the second fence. Instead, he simply sat down. After about seven minutes, Border Patrol Agent Joseph Cisneros drove up to Cabrera." At which point Mr. Cabrera answers his questions, and at trial, tries to introduce a witness to say that the reason that Mr. Cabrera did what he did -- jump over the first wall and then wait to be caught -- was simply because of "the 'enormous backlog of Central American migrants seeking asylum' due to the 'metering' and 'Remain in Mexico' policies in place at the time" and that “the word [on the street] was that you could climb over the fence and try to get your asylum application that way.” Basically, that all Mr. Cabrera was trying to do was to apply for asylum, not actually sneak into the U.S. -- which is why he sat down after climbing the first wall, waiting for Border Patrol agents to talk to him.

Now, I can see why one might want to potentially punish even that: that it's unfair (arguably) to let someone "jump the line" and apply for asylum by hopping over the first fence and waiting to be caught.

But is it really "over 4 years in prison" unfair? Which is what Mr. Cabrera here gets sentenced to.

Seems pretty darn harsh, no?

Again, Mr. Cabrera has been deported previously, so you see why the guidelines might treat him the way they do. Moreover, the district court judge that he draws here -- Judge Burns -- is not exactly what you would call a "soft on border crimes" type of judge. So perhaps the sentence isn't that surprising.

But four years in prison for hopping over a wall and deliberately waiting to be caught so you can apply for asylum? Facially, that seems like a lot.