Thoughts on recent Ninth Circuit and California appellate cases from Professor Shaun Martin at the University of San Diego School of Law.
Thursday, December 05, 2024
Chinaryan v. City of Los Angeles (9th Cir. - Dec. 4, 2024)
Wednesday, December 04, 2024
Planned Parenthood v. Labrador (9th Cir. - Dec. 4, 2024)
The Ninth Circuit today affirmed a preliminary injunction against Idaho's efforts to stop doctors from referring patients to out-of-state providers. Losing on the merits was definitely not what the Idaho Attorney General (alongside the Idaho Solicitor General) wanted.
But the last part of Judge Fletcher's opinion adds insult to injury, saying (in rejecting Idaho's efforts to have a different judge assigned on remand):
"No 'reasonable outside observer' could conclude that the district judge harbors personal bias against the defendants or that reassignment is warranted to preserve the appearance of justice. See id. at 1046. The Attorney General charges that the district judge ignored relevant materials, mischaracterized the record, and unfairly denied supplemental briefing. This charge is patently false. The thorough preliminary injunction order shows that the district judge carefully considered the record, the Attorney General’s arguments, and the parties’ timely filings. The compressed briefing schedule reflects the emergency nature of the relief plaintiffs requested. The decisions to deny supplemental briefing and reject untimely filings were well within the district judge’s broad discretion to manage his docket."
"Patently false" are fairly strong words to describe an advocate's representations to a court. Definitely not something I'd want said about me.
Tuesday, December 03, 2024
Today's Insurance Opinions (Cal. Ct. App. - Dec. 3, 2024)
Both of these opinions -- coincidentally published on the same day -- amply demonstrate why some people rationally elect not to purchase insurance coverage. Because what you may well think that you're buying doesn't actually protect you from the losses you fear.
The first opinion involves fire coverage for a home in Malibu. Ms. Hughes bought a homeowner's policy from Farmers. You'd think that'd cover you if your house burned down, right? Nope. Her house burned down, but there's an exclusion in the policy (that her broker allegedly absolutely didn't mention) that says that the policy doesn't cover fire if you could buy a state-sponsored FAIR policy. So lawsuit dismissed.
The second opinion involves a commercial general liability policy issued by Continental Casualty to a massage parlor owner. What's the absolute biggest risk you face when you own one of those businesses? Right. You're worried that you might get sued if you or one of your employees allegedly touches someone without their consent. Which, of course, happens here. At which point the insurer refuses to defend the lawsuit, relying on an exclusion in the policy, and a stipulated $6.8 million judgment results. The owner sues the insurance company for coverage. Lawsuit dismissed.
Both of these judgments get affirmed. Which is hardly surprising. The relevant exclusions do indeed negate coverage for the exact thing the owners probably bought the insurance for in the first place.
Which you'd think, at some point, would diminish the number of people willing to buy insurance.
Though that assumes you read the fine print of these massively long policies. Which few people do.
Which in turn is, of course, why those exclusions persist.
Monday, December 02, 2024
Schneider v. Hull (Cal. Ct. App. - Dec. 2, 2024)
Wednesday, November 27, 2024
People v. Multani (Cal. Ct. App. - Nov. 26, 2024)
Mr. Multani has been sentenced to life in prison. But he also has stage IV lung cancer. It's going to kill him, so he would like compassionate release from prison.
The wrinkle is that Mr. Multani has had stage IV lung cancer . . . for 10 years now. It's a specific type of lung cancer with a particular gene profile, so we have treatments for that. Those treatments are not a cure by any means, but they've enabled Mr. Multani to live this long. Eventually they'll fail, of course. But no one knows when.
Do you get compassionate release?
The Court of Appeal and the trial court say: No.
Yes, the cancer metastasized to his brain in 2017. But since then, it's been "perfectly suppressed." He still has symptoms, of course. He has weakness and problems with balance and cognition that require him to use a wheelchair. And, again, at some point, the cancer almost certainly will kill him. Maybe in a month. Maybe in six months. But maybe not for years. Depends on when the gene-targeting drugs stop working.
The Director of Health Care Services for the CDCR recommended that Mr. Multani be granted compassionate relief, but the trial court disagreed. It held that Mr. Multani was not on an “end-of-life trajectory” under Section 1172.2 in light of his prior and expected future treatment. The Court of Appeal affirms.
Tough call either way, IMO.
Tuesday, November 26, 2024
Murphy v. City of Petaluma (Cal. Ct. App. Nov. 25, 2024)
Here's another one where both the trial court and the Court of Appeal seem to me to have the right take; this time, in dismissing a lawsuit on summary judgment:
"Marites Murphy sued the City of Petaluma and fire department paramedics Jude Prokop and Shay Burke for medical negligence after the two paramedics responded to the scene of a head-on automobile collision in which Murphy was involved. As we shall discuss, the distinctive feature of this case is that Murphy repeatedly told the paramedics she was not injured and did not want or need medical assistance, and she said so even after being warned she might have suffered a serious injury that was not yet symptomatic and being urged to accept transport to a hospital for examination by a physician. Accordingly, after concluding Murphy had the capacity to refuse medical treatment, the paramedics left the scene. Unfortunately, hours later, Murphy suffered a serious debilitating stroke attributable to a hypertensive crisis triggered by the collision. She subsequently filed this lawsuit alleging the paramedics owed her a duty of care, which they breached through gross negligence, to assess her medical condition and to arrange transport to a hospital. The trial court granted the defendants’ motion for summary judgment, ruling the paramedics did not assume a duty of care to provide Murphy with the medical assistance she claims was owed. We affirm."
I feel incredibly bad for Ms. Murphy, of course. But I agree with the Court of Appeal and the trial court that the paramedics did all that they were legally required to do. Ms. Murphy was competent at the time. She could -- and did -- refuse medical treatment. She had that right. If that's your choice, not only do the paramedics have no "duty" to conduct further medical tests, they also affirmatively have no right or legal ability to do so. When someone competent says "I'm fine, leave me alone," that's the end of the matter. Leave 'em alone.
I was reminded when reading this case of my own personal experience on this front. I was riding my bike home from work several years ago when I was hit by a car. Many ribs were broken, I could tell my left lung was punctured, I had trouble breathing, etc. It was a serious. But I was wearing a helmet and knew that I hadn't hit my head. The paramedics show showed up -- quite rapidly, I might add; thank you for that, as well as the resulting morphine -- and understandably wanted to place me in a cervical collar, but when they did so, I had a much harder time breathing. So I told them to take it off; that I was certain that I had not hit my head and that my neck was fine. They repeatedly said: "Are you sure?" and I responded that I was, so they never put me in the thing.
That's exactly how that event should have gone down, and everything was fine. Were the law other than as articulated in this opinion, people might well be subjected to medical interventions that they do not want. We don't do that. (Not generally, anyway.) The downside of that legal regime is that, sometimes, perhaps a as here, people get injured in a way they didn't anticipate. That's a real harm, to be sure. But we are about autonomy. Deeply. Sometimes you get to choose to do things that are unwise, or even that affirmatively may cause you harm.
As here.
The upsides are worth the downsides. I'm glad the Court of Appeal agrees.
Monday, November 25, 2024
Juarez v. San Bernardino School Dist. (Cal. Ct. App. - Nov. 25, 2024)
It's been a busy week or so, and as a result, I've gotten a little behind on reading cases. But today sees a good one that's definitely worth note.
The trial court thought these facts weren't sufficient to create a claim for conduct "under color of law" for which the defendant could be liable, and hence granted a demurrer. The Court of Appeal disagreed and reversed.
Seems to me that the Court of Appeal is unquestionably correct.
The relevant facts, as alleged in the complaint:
"In February 2018, Juarez found a cell phone on the ground in Cherry Valley, California, located in Riverside County. Juarez placed it in his truck. Later that afternoon, when Juarez and the other plaintiffs were outside of Hinojosa’s home in nearby Beaumont, California, Officer Brown approached them after tracking his cell phone to their location.
Officer Brown, who was employed by the District as a police officer at the time, was carrying his firearm and had his District police badge clipped to his belt. He immediately identified himself as a police officer for the District, displayed his badge to plaintiffs, and demanded that they comply with his commands. Officer Brown then pulled his firearm, cocked it, and aimed it at Juarez, Espinosa, and Hinojosa, while Morfin, Hinojosa’s wife, watched from inside the house. Officer Brown demanded they turn over the cell phone and repeatedly asserted his authority as a police officer for the District. Juarez retrieved the phone from his truck and attempted to hand it to Officer Brown, but Officer Brown ordered Juarez to put the phone on the ground. As Juarez went to do so, Officer Brown struck Juarez in the face with his gun, causing Juarez to fall back, hit his head on the ground, and lose consciousness. Officer Brown then took pictures of plaintiffs and told them he knew who they were.
Officer Brown later pled guilty in San Bernardino County Superior Court to assault by a public officer (Pen. Code, § 149) and threatening the other plaintiffs under color of law, admitting that he acted under the color of authority as a District police officer when he detained plaintiffs and assaulted Juarez."
Those seem clearly -- clearly -- sufficient to me.
Monday, November 18, 2024
LCPFV, Inc. v. Somatdary Inc. (Cal. Ct. App. - Nov. 11, 2024)
On occasion, I'll read an opinion by Justice Wiley that I feel is too harsh or curt (or both).
A plumber allegedly didn't do a great job on work that cost $47,883.40, so the owner of the building had to hire someone else to fix it. The worker who subsequently fixed the problem charged the owner less than $43,883.40, but the owner nonetheless sued the original plumber for a fair piece of change. When the first plumber eventually defaulted, the owner submitted a default package asking for over $1 million, including over $300,000 in attorney's fees. The trial court said "No way" and awarded $120,319.22 total, and the owner appealed.
The Court of Appeal affirms. And isn't shy about explaining why.
Read the whole opinion -- it's 25 pages -- for a full understanding of why the trial court (as well as the Court of Appeal) thought that the owner was unnecessarily churning the case. Plus there's the whole "lack of candor" portion of the opinion. I'm fully on board for everything that Justice Wiley says on this score.
I nonetheless will mention that a small portion of the opinion seems erroneous to me.
The plaintiff here propounded a number of case-dispositive requests for admission, which the defendant didn't respond to (because no one represented him at that point). That's a time-worn strategy, and hardly unique to this particular case.
Justice Wiley takes umbrage at this practice, saying that it was unnecessary since the defendant had already essentially defaulted. I fully agree with that.
But he also attacks the practice writ large. He quotes the Rutter Group to say that "requests for admissions are useful 'only as to matters of lesser importance (for which they may not be necessary, since unimportant matters can usually be handled by stipulation with opposing counsel).'" And then goes on to say that, as a general matter, propounding RFAs on the ultimate issues in the case is "troubling," "not ‘in conformity with the spirit of the law,’" and does not "serve substantial justice.’”
I understand that there are occasional cases that so state, but that attitude seems flatly wrong to me. It's just fine, in my view, to propound case-dispositive RFAs, even at the very outset of the case. Mind you, if you do so, the RFAS may well not be successful, since the other side will almost surely deny them and the trial court will almost equally surely find "substantial justification" for such denials given the early stage of the litigation and hence deny cost of proof sanctions even if you establish the truth of the requests at trial. But if you want to give it a shot, I see nothing improper about the practice.
Moreover, I think the practice has affirmatively beneficial results as well. Sometimes, even early on in the litigation (and especially thereafter), there is in fact no substantial justification whatsoever to deny even case-dispositive RFAs. Say, for example, you rear-end someone on a bridge. Or drive drunk and smash into someone's house. That's pretty much certainly your fault. If you nonetheless deny liability in your answer, well, a case-dispositive RFA on an ultimate fact can -- and should -- be coming your way. And if you have the gonadular fortitude to deny the thing, well, if I'm the judge, I'm imposing cost of proof sanctions every day of the week if liability is ultimately found. Rightly so.
RFAs are designed to narrow disputes, and one (critical) way they do so is to impose a burden on those litigants who might wrongfully create disputes where none actually exist. That's equally true for both "important" (e.g., case dispositive) portions of the case, as well as less portions. RFAs are valuable in both settings.
So I'm 100% on board for Justice Wiley's language as applied here. But I don't think that language applies more broadly, and am worried that a published opinion contains language that litigants might well use to defeat the value (and use) of case-dispositive RFAs.
Friday, November 15, 2024
The Comedy Store v. Moss Adams LP (Cal. Ct. App. - Nov. 14, 2024)
Tuesday, November 12, 2024
In re Baby Girl R. (Cal. Ct. App. - Nov. 12, 2024)
Friday, November 08, 2024
Grand Canyon University v. Bolton (9th Cir. - Nov. 8, 2024)
I gotta be honest that I liked the district court's decision better than the Ninth Circuit's in this one.
It's a summary judgment ruling, so maybe reasonable minds could perhaps differ. But it's a challenge to an administrative ruling, so the agency's decision needs to be "arbitrary and capricious" to be overturned, and that's a super difficult standard.
As I see it, there's pretty ample evidence that Grand Canyon University's purported "transition" from a for-profit corporation to an alleged nonprofit is basically a scam. (Which, in very loose -- and admittedly opinionated -- language on my part, is what the Department of Education essentially concluded.) You can read the whole opinion for yourself for the details. But they basically fold the existing for-profit entity into an existing nonprofit but then "capture" the nonprofit, plus get basically all the tuition revenue flowing to the purported nonprofit.
(Here are some of the mind-numbing details, according to the opinion's recitation of the DOE's views:
"The Department concluded that the “primary purpose” of the GCE-Gazelle transaction “was to drive shareholder value for GCE.” The Department based this conclusion on the purportedly disproportionate 60% share of GCU’s revenues to which GCE was entitled under the transaction, which included revenue from operations to which GCE was not obligated to “provide[]” any “services” under the MSA. The Department also found that, when taking into account payments on the loan under the Credit Agreement, GCE would be “receiving approximately 95%” of the university’s revenues. “[E]qually concerning” to the Department was its view that GCU was a “captive client” under the transaction, given the initial seven-year term of the MSA and the substantial financial payment that the university would have to make in order to terminate the agreement. The Department concluded that “GCU d[id] not meet the operational test’s requirement that both the primary activities of the organization and its stream of revenue benefit the nonprofit itself.” According to the Department, “[t]his violates the most basic tenet of nonprofit status—that the nonprofit be primarily operated for a tax-exempt purpose and not substantially for the benefit of any other person or entity.” The Department also stated, as “additional support” for its conclusion that GCU was not entitled to nonprofit status, that Gazelle was “not the entity actually operating” the university under the Department’s regulations. See 34 C.F.R. § 600.2 (stating that a HEA nonprofit must be “operated by one or more nonprofit corporations or associations”); 20 U.S.C. § 1003(13) (same). The Department reasoned that the board “responsible for managing and overseeing the University” consisted predominantly of GCE employees."
Pretty damning, in my view. As well as a sufficient basis for calling GCU not a "true" nonprofit -- with all of the various financial advantages and benefits from the Department of Education that arise alongside such a status.
I understand Judge Collins' hypertechnical (IMHO) argument to the contrary. I'm just not confident that the DOE's opposite conclusion is genuinely arbitrary or capricious, or that (as the panel found) it really applied an inappropriate legal standard here.
At a minimum, it seems to me like they reached a result with which I'm entirely comfortable.
But if reasonable minds could perhaps differ, so be it.
Wednesday, November 06, 2024
In re Marriage of Diamond (Cal. Ct. App. - Nov. 5, 2024)
I thought it was very nice of Justice Feuer to spend 32 pages carefully analyzing this appeal, which affirmed the trial court's rejection of a self-represented litigant's attempt to vacate a marital dissolution judgment in which she failed to show up for trial (or respond to discovery, or basically do anything). The opinion exhaustively discusses the relevant evidence, is very careful about the underlying standards, and takes the issues seriously. All this despite the fact that, in my view, the proper outcome is crystal clear, particularly since the trial judge found the appellant not credible (for more than sufficient reasons).
I certainly feel bad for the appellant, and am confident that Justice Feuer does too. She was clearly depressed during a period of time, and did not handle her divorce (or mental health during that period) well. But she had plenty of notice and plenty of opportunities to show up, and failed to do so, even as she was able to successfully participate in a variety of events. So, yes, I feel bad, but the proper result is fairly clear. (I'm also quite confident that the trial court rightly awarded custody of the children to the father under the circumstances.)
One thing that you learn about the appellant midway through the opinion is that she's an attorney, which is ironic given her failure to appear in the divorce action. If there's anything you'd think an attorney would know to do, it's to keep in touch with her attorney and/or show up at trial.
But I get it. She was depressed. She simply didn't want to deal. Not a sufficient excuse under the particular circumstances here (and given the evidence presented below), but understandable.
Parenthetically, I also thought it was interesting that when I looked up the appellant's name on the State Bar's website. All three of the attorneys with that same name ("Susan Diamond") are currently ineligible to practice law. The one at issue here (in LA) is suspended for failure to pay child support, failure to pay bar fees, and failure to satisfy the MCLE; the second (a fellow HLS grad!) just recently went inactive last year after practicing law for 40 years; and the third (in Sacramento) was suspended just four months ago for client trust account noncompliance (oops!).
Three for three.
Anyway, a very nice opinion by Justice Feuer, who clearly gives this appeal the careful attention it deserves (and perhaps even more).
Tuesday, November 05, 2024
Mountain View P.D. v. Krepchin (Cal. Ct. App. - Nov. 4, 2024)
I seriously hope that Mr. Krepchin gets some assistance with his mental heath. But, in the meantime, I completely agree with the Court of Appeal that he shouldn't possess any guns.
Good luck, Mr. Krepchin. Things can get better.
Monday, November 04, 2024
Martinez v. Superior Court (Cal. Ct. App. - Nov. 4, 2024)
I understand where the Court of Appeal is coming from here. The Legislature may well allow you to retrospectively withdraw your guilty plea -- for example, when you weren't advised at the time of the immigration consequences of that plea. But that doesn't mean that the state is barred from refiling those charges after the resulting dismissal. The statute doesn't expressly say that refiling is barred, and in some circumstances, I could totally understand why refiling would be permissible.
So the basic holding is something that doesn't seem to me out of this world. Under those circumstances, I can see why the Double Jeopardy clause doesn't necessarily bar refiling, the statute doesn't, etc.
But the situation here involves someone who's served his original sentence -- namely, probation. When the Legislature says that, after you've successfully served such a sentence, you can withdraw your plea and get the charges dismissed, it seems a bit bizarre to say that the state can then refile those same charges. And, to make matters worse, to say that the state can now refile those charges as a felony even though the California Supreme Court has said that "when a court has granted relief under section 17, subdivision (b), the offense is 'deemed a ‘misdemeanor for all purposes.’"
Doesn't it seem crazy to allow the state to refile the charges after you've served your entire sentence and to potentially now seek to incarcerate you for a longer period as a result of your successful petition under a statute that the Legislature passed to ameliorate the consequences of your prior conviction?
The Court of Appeal responds to that basic point by saying that "at this stage of the proceedings, whether the state may seek additional punishment is not before us." True enough, I guess. But that's the mountain that astrides the molehill. If the state isn't allowed to seek additional penalties beyond the ones that you've already served, then what's the point of allowing refiling? And if the point of the statute was to ensure that there aren't additional penalties, then it seems to me that allowing refiling would impermissibly conflict with the core purpose of the statute, and be improper even if the statute didn't expressly say whether such refiling was permissible or not. (That matters; just like preemption can be found even if its implied rather than express, so too can a statute sometimes require something even though the Legislature didn't pass a statute that contains those exact words.)
So it seems to me important whether additional punishment is allowed, even though the Court of Appeal doesn't feel like it needs to reach that issue at this point.
It seems to me like it nonetheless matters. A ton.
Thursday, October 31, 2024
In re M.T. (Cal. Ct. App. - Oct. 30, 2024)
Osborne v. Pleasanton Automotive Co. (Cal. Ct. App. - Oct. 31, 2024)
It's a bit ironic -- or at least caused me sly amusement -- that this appeal involves a (successful) anti-SLAPP motion filed against a cross-complainant whose name is Bob . . . Slap.
It's juvenile, I know, to find humor in someone's surname. Still
(The word "SLAPP" appears 47 times in the opinion and the word "Slap" appears 98 times, so it's kinda hard to miss the similarity.)
Tuesday, October 29, 2024
In re H.B. (Cal. Ct. App. - Oct. 29, 2024
I'm of two minds regarding the decision to publish this opinion. On the one hand, yes, it's important, and we want to make sure that trial courts don't make the same (alleged) mistake in similar cases.
On the other hand, oh my, what a total nightmare of a family situation, and so depressing to read about.
U.S. v. Nasri (9th Cir. - Oct. 29, 2024)
Do you remember Pennoyer v. Neff -- likely from your first day of Civil Procedure as a first year in law school?
Today's opinion from the Ninth Circuit is Pennoyer on steroids, and discusses personal jurisdiction (or lack thereof) in civil forfeiture actions involving international fugitives.
It's 89 pages of single-spaced, incredibly dense prose. With an opinion by Judge Desai, a concurrence by Judge Bybee, a concurrence by Judge Desai (to her own opinion), and then a dissent by Judge Bennett.
If you were simply fascinated by that first day of Civil Procedure, I can't think of a better way to spend the next couple of hours.
(I must sadly admit that I did, in fact, spend that time. But I teach the stuff, so actually care.)
Monday, October 28, 2024
Alafi v. Cohen (Cal. Ct. App. - Oct. 25, 2024)
I'm often protective of professors, but ironically enough, here's a recent opinion from the Court of Appeal involving a $20 million judgment against a full-time, tenured professor at Stanford. And not an unknown professor either; the judgment debtor is Stanley N. Cohen, who basically discovered recombinant DNA in the 1970s.
The Court of Appeal finds in his favor, but it's likely only a temporary reprieve, because the remand is so the trial court can issue a more robust statement of decision sufficient to permit appellate review. I'd bet a ton that the judgment's going to come out the same way, but at a minimum, this buys Professor Cohen a little more time.
We'll then see if, eventually, the Court of Appeal affirms or reverses on the merits.
Friday, October 25, 2024
U.S. v. Shih (9th Cir. - Oct. 25, 2024)
Today's Ninth Circuit opinion notes that "Shih, an electrical engineering professor at the University of California, Los Angeles, collaborated with engineers in the People’s Republic of China in conducting research for China Avionics Systems Co. Limited (“AVIC”), a Chinese enterprise that develops military weapons. . . . Shih was sentenced to concurrent 85-month sentences on Counts One and Two and lesser concurrent sentences on the other sixteen counts."
I'm sure that I'm being overly proprietary here, but I'd nonetheless like to point out that Mr. Shih was an adjunct professor at UCLA. That's a big difference.
By contrast, full-time, tenured professors in California rarely sell military secrets to our adversaries.
Rarely.
Thursday, October 24, 2024
CPC Patent Tech. v. Apple, Inc. (9th Cir. - Oct. 24, 2024)
Price v. Superior Court (Cal. Ct. App. - Oct. 23, 2024)
How do you feel about sentences that are not grammatically complete sentences?
Personally, I'm not a monster stickler for old-style grammar. Over the years, for example, I've become comfortable with beginning the occasional sentence with "And . . . ." Despite the fact that, as a young lawyer, I thought that was terrible form. Nowadays, though, I'm down with that.
With the understanding that some other readers might react negatively to it.
With that in mind, what do you think about these two sentences from Justice Earl:
"Over a year later, on November 14, 2023, the superior court held a hearing in which it considered anew the issue of Price’s suitability for conditional release, based on new circumstances. This time apparently without the concurrence of DSH."
Me? I'd probably have introduced those last eight words with a comma -- or a set of dashes -- instead of a period. If only because I can't seem to find a verb in that second sentence.
But this might perhaps be another example of me being an old-fashioned stickler. I get Justice Earl's point. What she's saying is unambiguously clear. So why should I care if there's a sentence without a verb?
Just fine, no?
Wednesday, October 23, 2024
Committee to Recall Dan Holladay (9th Cir. - Oct. 23, 2024)
Judge Bumatay (alongside Judges Bennett, Nelson & VanDyke) dissent from the denial of rehearing en banc in this case. It's a 30-page missive that argues that states should have more leeway than Ninth Circuit precedent currently allows to restrict voting on initiative, referenda and recall petitions.
Let's leave to one side the atmospherics of conservative jurists arguing in favor of more restrictions on voting -- an issue of some political salience in the contemporary era. Judge Bumatay is making a doctrinal point, and he's (of course) entitled to do so, using whatever arguments he'd like. Those arguments stand or fall on their own merits.
But as a practical and persuasive matter, if you're arguing in favor of the legitimacy of state-sponsored limitations on voting, I might suggest that you not -- as Judge Bumatay does pervasively throughout the entire 30-age opinion -- focus on similar efforts to constrain voting during Reconstruction.
Because, yes, states -- particularly in the South -- did indeed make pervasive efforts to limit ballot access during Reconstruction, so there's indeed a lot of historical precedent on that front.
But I'm not at all certain that precedent cuts the way Judge Bumatay wants it to.
Because most of us, I suspect, don't view those voter suppression efforts during Reconstruction as a good thing that we should diligently attempt to replicate.
Tuesday, October 22, 2024
A.D. Improvements v. Dep't of Transportation (Cal. Ct. App. - Oct. 22, 2024)
A statute requires CalTrans to sell “commercial real property acquired for the construction of a state highway, but no longer required for that purpose."
You'll notice that the statute only applies to "commercial" real property. So if the property was residential when CalTrans acquired it, and is currently residential -- e.g., CalTrans is currently leasing it to someone who uses it as residential property -- clearly the statute doesn't require CalTrans to sell it.
Conversely, if the property was commercial when CalTrans acquired it, and is currently utilized for commercial purposes (e.g., by the lessee), then, yes, CalTrans has to sell it.
But what this opinion resolves is: What if the property was non-commercial (e.g., vacant) when CalTrans acquired it, but is currently commercial (i.e., used by the lessee commercially). Does the statute apply?
The question is accordingly one of tense. "Acquired" is past tense. What does that past tense word modify? Does it mean that the property had to be commercial in the past -- when acquired? Or does the statute simply mean that the property needs to be commercial now for a sale to be acquired?
The trial court thought it meant one thing. The Court of Appeal concludes the opposite, and reverses.
What do you think?
It's at least facially a simple grammar question. So, arguably, there's a "clearly right" answer.
And that's indeed what the Court of Appeal concludes. Its opinion is replete with statements to the effect that there's only one possible interpretation of that statute that might even conceivably be true. It says the language "clearly indicates the Legislature’s intent." That the "plain reading" of the statute permits only one conclusion -- a phrase the opinion often repeats. And that the statute's unambiguous, and hence the court need not resort to legislative history.
I'm not going to quibble with ultimate result reached by the Court of Appeal. That result is plausible, for sure.
(Notice how I'm deliberately keeping you in suspense as to which way the Court of Appeal comes out?)
My only quibble is that I definitely do not think the answer is "clear" -- or that the text has a "plain" meaning that admit of only one result. Nah. Either result is plausible to me. One might perhaps be preferable -- and the one that I think is correct. But there's no way that I believe that there's one and only one way to interpret the sheer text that the Legislature passed. Sorry. Language is often complex, and its meaning somewhat indeterminate. As here.
When the text is indeed crystal clear, sure, go ahead and follow it; that's definitely our job. But there are lots of circumstances in which the text is not, in fact, crystal clear.
When that's true -- as here -- I don't think it's helpful to stretch and pretend that there's a single "plain meaning" that obviates the need to resort to all the helpful textual and analytical tools in our arsenal. I know we're in a "focus on the text" jurisprudential regime lately. But that can go way too far, and claim as "clear" certain statutory language that's, in fact, far from it.
And I think this is a good example of that.
As proof: Are you really sure that the way you come out on this one is the same as the Court of Appeal, when all you have is the ostensibly "clear" text?
Go ahead and read the opinion to find out if you're right.
Monday, October 21, 2024
Montejo-Gonzalez v. Garland (9th Cir. - Oct. 17, 2024)
If she had consistently met all her other deadlines but got caught in multiple traffic accidents on her way to court, would you deport someone from the country solely because she was late for her hearing?
Judge Desai wouldn't. Judge Collins would.
Claudia Elena Montejo-Gonzalez had a court hearing in Seattle on October 31, 2019 at 8:30 a.m. She didn't have a lawyer, so she had to show up personally, so she left her house in Bremerton for the hearing at 6:45 a.m. That's typically sufficient time, since the trip normally takes 90 minutes or so at that time of day.
"But on their way to the hearing, petitioners encountered not one, but two major accidents that caused severe traffic." (She took pictures!) When she didn't show up on time, the immigration judge ordered her deported in absentia. "Upon arrival, Ms. Montejo-Gonzalez spoke with two clerks to try to have her case heard, but to no avail."
Judge Desai says that, under the totality of the circumstances, Ms. Montejo-Gonzalez did everything she could given the extraordinary situation to arrive on time, so shouldn't be deported in absentia. Whereas Judge Collins says that being late was her fault -- she should have left earlier -- so deportation without a hearing is okay.
To me, the correct answer depends on how late you are, and why. It definitely should not be the rule that whatever traffic you confront is your fault because you could always have left earlier than you did.
Here, Ms. Montejo-Gonzalez was two hours late. That's a lot. If she was only 15 minutes late, well, that's not good, but no way you deport someone in absentia for that, IMHO. You just hear her case on second call or whatever. Regardless, honestly, of the excuse -- if any -- for her absence. You don't get booted out of the country because you're 15 minutes late to something. Not in my world, anyway.
But two hours is more than 15 minutes. By that time, the judge had finished calling the calendar and had gone back into their chambers. Now, it's only 10:30 a.m. at that point, so if I'm the judge, I might well be miffed, but it's a serious issue to deport someone in absentia, so I'd have gone back to the bench, vented a little, and heard the thing on the merits. Again: it's only 10:30 in the morning. It's not like everyone's gone home for the day.
Now, Judge Collins is right. Ms. Montejo-Gonzalez could definitely have left earlier than 6:45 a.m. (Though that's already pretty early.) And if I was giving her advice, I definitely would have told her to leave by 6:00 a.m. or so. Sure, that might get her there a whole hour early, since it only typically takes 90 minutes (even with traffic) to arrive, so she'd be there at 7:30 a.m. But better to play it safe.
It nonetheless seems unfairly harsh to say that you get deported -- without a hearing -- if you leave 45 minutes too late. Wholly apart from the injustice of the rule that Judge Collins appears to advance: that traffic is always expected so is always your fault if you don't leave early enough.
Take a look at the route that Ms. Montejo-Gonzalez had to take. It's a long way around the bay to get to downtown Seattle. (Don't even get me started on risking the ferry when your continued presence in the country is at stake.) I plugged in the recommended departure times for Thursday, October 31 (the date of her hearing) into Google maps. That takes, according to Google, from a little under 90 minutes to maybe two and a half hours. But, on the relevant day, it took nearly four hours due to the two major accidents.
That seems fairly exceptional, no? Doesn't exceptionally (e.g., not reasonably anticipated) bad traffic count as a legitimate excuse?
Judge Collins doesn't seem to think so. But really?
Imagine, for example, that Ms. Montejo-Gonzalez had left SUPER early -- say, 5:30 a.m. -- but while she was on the road, the Tacoma Narrows Bridge was suddenly shut down. Maybe a ship hit the thing. (It happens.) Maybe there was a jumper. (Not a hypo: This happened to me once, when the Coronado Bridge was suddenly shut down and I had to go over it to drive one of my children to a game. I had to drive all the way around -- basically to Mexico -- to ultimately get there. Super delayed.)
At that point, there's basically only one way to Seattle: WAY around the bay -- all the way to Olympia and back -- and no way (even leaving early) you're getting to the hearing anywhere near on time. No matter how early you leave. (And that's assuming you don't get stuck on the bridge!)
Your fault? Deported in absentia? After all, it's just "traffic". And you could have left at 2:00 a.m., after all. Or spent the night -- or week -- in downtown Seattle, waiting for your hearing.
So, in my mind, unexpected traffic can be an excuse. But you gotta look at the totality of the thing. Was it just a little worse than usual? A lot worse than usual? Incredibly worse than usual? And what did you do to try to make it work. Did you (could you?) call the clerk? Did you show up while court was still in session? Do we believe you when you say you left when you did and were delayed as you were? All this goes into the assessment of the appropriate remedy.
But the thumb's gotta be on the scale for only deporting someone if they actually deserve to be kicked out of the country. Right?
Friday, October 18, 2024
In re Chreech (9th Cir. - Oct. 16, 2024)
Tuesday, October 15, 2024
People v. O'Bannon (Cal. Ct. App. - Oct. 15, 2024)
There are undoubtedly a lot of reasons why you don't want to be homeless and living in a Salvation Army shelter.
Nontrivially amongst these is not wanting to get slashed in the face with a razor by a fellow resident.
Monday, October 14, 2024
Howard Jarvis Taxpayers Ass'n v. Powell (Cal. Ct. App. - Oct. 11, 2024)
Thursday, October 10, 2024
Katayama v. Continental Investment Group (Cal. Ct. App. - Oct. 9, 2024)
Clearly I'm just meaner than the Court of Appeal. Or at least the 4/3.
Plaintiff files a lawsuit, and defendant propounds twenty RFAs. Plaintiff entirely fails to respond during the relevant statutory period (30 days). Okay. All objections waived. Not exactly great lawyering, but if that's the type of attorney you hired, so be it. Strike one.
Plaintiff doesn't correct its error and make responses after the deadline either. So now defendant has to move to deem the answers admitted, which it does. Strike two.
Then, ten days before the hearing on the motion, Plaintiff (finally) propounds answers to the RFAs, denying some and admitting others. But he nonetheless objects to every one of the RFAs via "general objections" that have -- duh -- already been waived by the failure to timely respond in the first place.
In my view, that's strike three. Yes, the CCP allows you to not have the RFAs deemed admitted if you propound responses in "substantial compliance" with the rules prior to the hearing. But it's always been the case -- or at least that's what I teach in my Pretrial Practice class -- that propounding an (untimely) response with (obviously waived) objections doesn't count as "substantial compliance" with the CCP. You've just got to answer. No objections.
The trial court thinks so as well, and deems the RFAs admitted. Which in turn results in plaintiff losing at trial.
(There's a "fourth strike" as well, by the way. Over a year later, plaintiff moves for leave to withdraw the deemed admissions -- which Section 2033.300 allows -- but utterly fails to satisfy its requirements.)
Were it me, I'd be just fine with this result. Yes, we want people to have a trial on the merits if they can. But we also need lawyers to comply with the rules, and have the process proceed like it should. This was not just a one-off mistake. This was a consistent and entirely inexplicable failure to follow even the most basic of requirements -- ones that even any first-year associate knows full well. Sorry, plaintiff. Go ahead and sue your lawyer. But this particular lawsuit, in my view, is properly dismissed.
By contrast, the Court of Appeal reverses. It's fine to impose monetary sanctions, it says. But despite the inclusion of (clearly waived) objections, plaintiff's responses were in "substantial compliance" with the rules, so the trial court had no ability to deem the RFAs admitted.
A gift to bad lawyers (and their clients), to be sure. But not one I would have tendered.
But, again, that's because I'm way too mean.
Wednesday, October 09, 2024
Montana Medical Ass'n v. Knudsen (9th Cir. - Oct. 9, 2024)
Montana passed a statute during the height of COVID that prohibited anyone from requiring vaccination; e.g., for employment or to enter an establishment. "This means that a private pediatrician cannot ensure that her staff is vaccinated for measles before interacting with newborn patients;[FN] a geriatric specialist cannot ensure influenza or shingles vaccinations; and an HIV clinic cannot ensure bacterial pneumonia vaccination. [FN:] The Center for Disease Control explains, 'Measles is highly contagious. If one person has it, up to 9 out of 10 people nearby will become infected if they are not protected.'"
The Montana Medical Association sued, claiming that Montana's statute was preempted by federal law. The district court agreed. Today, the Ninth Circuit reverses.
Judge McKeown writes a super interesting concurrence, by the way, that discusses at length the Supreme Court's oft-criticized jurisprudence regarding facial challenges. For those readers who aren't already well-versed in this field, I highly recommend it. It's scholarly -- almost like a law review article -- much much, much more concise: ten pages total. Definitely worth a read.
Tuesday, October 08, 2024
People v. SanMiguel (Cal. Ct. App. - Oct. 8, 2024)
It seems like the Court of Appeal is gradually becoming more like the Ninth Circuit.
Sadly.
Monday, October 07, 2024
Union Pacific R.R. v. Superior Court (Cal. Ct. App. - Oct. 7, 2024)
I feel like most of the cases with the caption "Union Pacific R.R. v. Superior Court" are from an earlier century -- say, the 1800s. That's definitely when railroads were most heavily involved in litigation, and that's where most of the railroad cases we read in law school come from. (Maybe early 1900s as well.)
But this one is definitely a product of a more modern -- post-automobile -- era. As well as one with probably even greater significance to ordinary landowners than to any particular railroad.
The question presented is whether a landowner who owns property that abuts a public street is liable when cars on that street crash, veer off the street, and hit a tree located on the landowner's property. That's what happened here, and there's little doubt that hitting the tree substantially increased the resulting injuries to the driver.
Are you liable for letting a tree grow on your property when it might injure someone who veers off the street (perhaps, as here, allegedly through no fault of their own)?
I think I'm fairly on board for that result. The issue is whether there's a duty under those circumstances; that in turn involves balancing a ton of different factors. On the whole, the Court of Appeal's opinion seems right to me. Yes, we could -- if we wanted to -- impose a duty on people with respect to trees on their property, and, yes, that might decrease (for some crashes) the resulting injuries. But I'm not sure it's worth it, and the resulting rule might well go too far. For one thing, personally, I like trees; they're good for the environment. (Plus they're pretty.) For another thing, if we impose a duty, I'm worried the resulting rule would go too far. Most of us -- or at least most landowners -- own property that abuts a public street. Most of us also have things that might increase injuries to someone who veered off that street and came onto out land; a tree, a concrete wall, a parked vehicle, or the like. It's just too much, I think, to hold that we all have a duty to minimize those common (but admittedly potentially injury-causing) obstructions. When applying the relevant balancing test, I tend to agree that imposing a general duty probably just goes too far for me.
That said, Justice Snauffer somewhat lost me -- at least in terms of persuasive value -- at around page 28 of the opinion, and continuing to around page 32. There, Justice Snauffer articulated at length his view that imposing a duty in such settings might well constitute an unconstitutional "taking" of private property without just compensation.
I don't agree with that. There are lots of regulations that restrict what you can do with your land. Some of them (e.g., zoning and environmental rules) are infinitely more onerous than any duty that even possibly be at issue in the present case and yet are entirely permissible. Others are directly relevant to public safety and entirely permissible notwithstanding the view that you're allowed to do on your own property whatever you want. You may well, for example, want to set a spring gun on your property to deter or incapacitate would-be criminals. Tough luck. We can 100% permissibly prohibit that, and it's not an impermissible taking. So too here.
If we rationally concluded that huge trees right near a fast-speeding highway were injurious to public health, well, sorry, then you can't grow them. Ditto, by the way, if you want to put a half-dozen spears on your property pointed right towards the road. Yep, it's your land. Nope, you can't do that, and any claim that such a prohibition constitutes an illegal "taking" should (and would) fail.
So I'm on board for the result, but part of the underlying analysis actually pushed me in the other direction, rather than ostensibly supporting (as was the point) the opinion's conclusion.
Maybe I'd go the other way, in this particular case, if there was zero reason for the tree being there, or if it was literally right next to the road (as opposed to 20 feet from it) and the road was a super-fast and oft-crashed freeway. Maybe. But, here, I think the Court of Appeal gets the result right.
Even if its analysis, in places, might go a little too far.
Thursday, October 03, 2024
E.G. v. M.L. (Cal. Ct. App. - Oct. 3, 2024)
Whenever you might think that your family life contains a bit too much drama, feel free to compare your situation to this one for a little perspective.
Yikes.
In re Maury (Cal. Ct. App. - Oct. 2, 2024)
Wednesday, October 02, 2024
In re Powell (9th Cir. - Oct. 1, 2024)
There's a fight between Judge Sung and Judge Collins as to whether someone who has filed a Chapter 13 bankruptcy petition has an absolute right to dismiss that petition -- which is what the statute facially says -- even if, in truth, they don't satisfy the requirements of Chapter 13. Judge Sung says "yes" whereas Judge Collins says "no". Judge Forrest agrees with Judge Sung, so after this opinion, the answer is Yes. At least in the Ninth Circuit.
Okay. Definitely important for those who practice bankruptcy law. Less so for the overwhelming majority of us, who do not.
What struck me most about the case, though, was the tenaciousness of the party opposing the dismissal here.
The debtor was someone who had (allegedly) stolen confidential information and other stuff from his employer. The employer sued him in state court and obtained a $200,000+ judgment against him way back in 2000. That's not a huge number, and it's against an individual, so it's tough to actually get the money, even after obtaining a judgment. But even after "years of litigation" to get that award (and incurring the undoubtedly large costs and fees required to do so), "[f]or over a decade, TICO unsuccessfully attempted to collect this judgment from Powell [the debtor]." Which presumably required the expenditure of yet more costs and attorney's fees by the employer.
Then, in 2021, the debtor files his bankruptcy petition. Which the employer then actively fights, not only in the bankruptcy court, but then in front of the Bankruptcy Appellate Panel, and then here, in the Ninth Circuit.
There's no way that this is an economically rational decision. The employer has got to be spending way more money fighting this thing than they're ever going to actually collect from the guy. Particularly since, thus far, they've consistently been losing -- in the bankruptcy court, the BAP, and, today, in the Ninth Circuit.
So I'm thinking that the employer must just hate the guy. Want to make his life miserable. Want him to have to fight a quarter-century fight as retribution for the stuff he stole long ago.
They've got a judgment. They're entitled to do that if they want.
Just don't think that it's actually worth it. Money-wise, anyway.
Tuesday, October 01, 2024
People v. Harris (Cal. Ct. App. - Oct. 1, 2024)
U.S. v. Patterson (9th Cir. - Oct. 1, 2024)
Monday, September 30, 2024
TRC Operating Co. v. Chevron USA (Cal. Ct. App. - Sept. 27, 2024)
I bet you get paid a ton of money for convincing the Court of Appeal to reinstate a $120 million jury verdict against Chevron notwithstanding the trial court's grant of a new trial.
But you probably also get paid a ton of money for convincing the California Supreme Court to grant review and decide whether the Court of Appeal was correct.
Probably even more if you eventually win in the California Supreme Court. TBD.
Thursday, September 26, 2024
Cady v. Gamick (Cal. Ct. App. - Sept. 26, 2024)
I get it. You've got to say that a statute is "ambiguous" before you can do what makes sense. Because everyone's persuaded by the contemporary mantra that if the text of a law is clear, you've got to follow it. So Justice Weingart says that the meaning of this statute is unclear, and hence does what he thinks makes the most sense in this context.
But, with all due respect, the words of the statute seem pretty darn clear to me. Even though I'm on board with what Justice Weingart ends up doing.
There's a really rich guy -- someone who makes $2 to $3 million a year -- who's got a very disabled 34-year old son (with autism) who's incapable of supporting himself. The son gets around $12,000 every year in disability benefits, but that's hardly enough to live on -- and, in any event, he's not capable of living on his own. So he lives with his mother.
Mom and Dad are divorced. Normally, once a child reaches a certain age, he's on his own. But Section 3910 of the Family Code (understandably) makes the parents of an adult child “who is incapacitated from earning a living and without sufficient means” financially responsible for maintaining that child “to the extent of their abilit[ies].”
So, normally, Dad would fairly clearly be required to support the son (at least in part), because he clearly has the "ability" to do so given his wealth.
But there's this other statute, Welfare and Institutions Code section 12350. A statute that contains an express exception to Section 3910 of the Family Code. Recall that the son gets certain disability benefits from the state. Here's what Section 12350 says:
“No relative shall be held legally liable to support or to contribute to the support of any applicant for or recipient of [such] aid.”
It repeats this same exception later in that same statute:
“Notwithstanding [s]ection[ ] 3910 . . . of the Family Code, . . . no demand shall be made upon any relative to support or contribute toward the support of any applicant for or recipient of [such] aid.”
There's zero doubt that the son is the recipient of such aid. Similarly, there's zero doubt that Dad is a "relative" and that there's a demand here that Dad contribute to the support of the son.
So, under the clear and express words of the statute, Section 12350 is a defense.
The Court of Appeal nonetheless holds that it's not. The purpose of the statute, it says, is to make sure that the government doesn't provide aid to someone disabled and then go after the relative to reimburse it for the resulting aid.
And I completely agree. That's the point of the thing.
But that's not what it says. It says that NO ONE can demand that the relative "contribute to the support" of such a person. Including but not limited a demand under Section 3910 of the Family Code, which is undeniably the basis of the request here.
So under the clear and -- in my mind -- 100% nonambiguous command of the statute, Dad can't be ordered to contribute to the support of the child if he doesn't want to do so.
(Now, of course, I think he should morally be willing to do so, but that's a different issue. Dad likely is willing to contribute something, and has made various settlement offers in the litigation. The question is whether Dad can be compelled by the state to contribute amounts that he's unwilling to pay.)
The text of the statute is not ambiguous. The text clearly commands a single result: Dad wins. So if it's required that we find the statute textually ambiguous to hold otherwise, well, sorry, that's just not the case. Even if we might want it to be.
To reiterate, I'm persuaded by Justice Weingart that the purpose of the statute was to stop only the government from demanding reimbursement. But that's not what it says. The Court of Appeal's efforts to find textual language that makes the otherwise-clear statutory provisions "uncertain" are, in my mind, totally unpersuasive. The actual WORDS of the statute are clear.
Now, to me, that's not the end of the thing. I'm fine, in particular cases, to conclude that the Legislature used loose language -- by "loose," I mean inaccurate, not unclear -- and interpret those provisions in line with what I think the Legislature intended.
But that's Old School. It's not what we almost uniformly purport to do in the modern era. Thank you, Justice Scalia et al.
Even though I think we might still, in fact, do so. Including here. Because saying that there's an ambiguity allows us to do the right thing. The thing that both was intended and that's better for the universe. But since we're required to say that the statute is ambiguous before we do that; well, okay, so we'll say the statute is ambiguous.
Even when it's not.
Tuesday, September 24, 2024
Stein v. Kaiser Foundation Health (9th Cir. - Sept. 24, 2024)
It takes Judge Forrest only four pages to write an en banc opinion that explains that prior circuit precedent that held that the "first-to-file" rule in qui tam cases was "jurisdictional" isn't actually jurisdictional in light of intervening Supreme Court precedent. Other circuits (a minority) disagree, but there's a circuit split, and she concisely explains why the en banc court decides to go with the majority view on this issue.
By contrast, Judge Forrest also writes a concurring opinion, joined by only one other judge on the en banc court (Judge Bumatay), that takes up over triple the space -- 14 pages -- in an expansive exegesis about what does and does not count as dicta and why circuit dicta (even from an en banc court) shouldn't be binding, even if "incidental" (but not technically "necessary") to the result.
There's a lot there. Though perhaps somewhat ironic that this discourse about why dicta shouldn't be followed and is akin to an advisory opinion is contained in a nonbinding concurrence that's unnecessary and doesn't change the result.
But food for thought.
Wednesday, September 18, 2024
People v. Valle (Cal. Ct. App. - Sept. 18, 2024)
Police officers make an obviously pretextual stop -- the defendant's a known gang member, and he doesn't have front plates on his vehicle -- and wait to pull him over in order to give the canine officer (who they called before the stop) time to arrive. The canine alters on the driver's side door, and after searching, the police then find a gun in the center console, so arrest the defendant for being a felon in possession.
The trial court suppresses the evidence because the police waited to pull the guy over, but the Court of Appeal reverses. You're allowed to have pretextual searches, the Court of Appeal says, and the relevant clock only starts ticking for an illegal "prolonged detention" once the guy's actually pulled over, not at the point you "decide" you're going to pull him over (but wait a bit so the dog can start making its way over).
All that makes doctrinal sense, at least according to existing precedent. So no qualms there (again, at least under existing law).
But I'll add one additional point -- not about doctrine, but about the real world (and, parenthetically, how it relates to doctrine).
The Supreme Court doesn't allow the police to "prolong" a traffic stop for an additional period of time to get a canine, interrogate the driver about unrelated (potential) criminality, etc. So you can only detain the driver for the "normal" period of time it takes to write a ticket.
One way around that is the way the police employed here -- just wait to stop you until the dog's nearby. But you can't complain, because your "stop" was just the normal length.
But the other way around it is to make the "normal" period of time it takes to write a ticket as long as possible. You've presumably seen a traffic ticket -- perhaps even gotten one (or several) yourself. They aren't even a page long. It's notecard-sized or so. With little boxes to check etc. Sure, you might have to run a records check first, but how long do you think it takes to fill out those little boxes?
Maybe -- MAYBE -- two minutes. Three at ABSOLUTE most. Probably a fair piece less if you're an actual police officer who's written literally thousands of them in your lifetime.
But if you're called to the stand to testify as to how long it "normally" you to write a ticket, what do you think you say. Remembering, of course, that that's the standard for whether or not you've engaged in unconstitutional "prolonged detention" such that the stop is impermissible and your arrest and conviction gets thrown out.
Here's what you say:
"Writing a citation can take him anywhere from 5 to 10 minutes."
Since it "normally" takes the officer "from 5 to 10 minutes" to write the citation, there was no illegal "prolonged detention" because the canine dog here arrived three minutes after the stop and alerted to "drugs" in the vehicle exactly 10 minutes after the stop -- so purportedly the canine search in no way "prolonged the detention" since it was going to take the officer 10 minutes to fill out the citation in any event (even without the dog).
I'm sure that's what the officer testified to, and, yep, the trial court (and Court of Appeal) relies upon that testimony. What certainly did not happen here is that the officer took his own sweet time to fill out the citation while waiting for the dog to arrive and then the dog alerts on the "drugs" at just the exact moment that it "normally' takes the officer to fill out the citation form.
Nope. Definitely not.
(I'm putting the word "drugs" in quotes, by the way, because there's literally no mention anywhere in the opinion of there ACTUALLY being drugs in the vehicle. The only conviction is for the firearm in the center console. So unless that's what the dog was smelling -- no small feat, I would imagine -- the stop was justified because (1) it took the "normal" period of time, (2) the dog "actually" smelled drugs and alerted accordingly, but (3) oops, no drugs, but yay, firearm, hence the arrest of a known member of a gang via a pretextual stop.)
The point is simply this: There are laws, and then there are ways around those laws. Criminals aren't the only ones who have figured that out.
Tuesday, September 17, 2024
C.C. v. D.V. (Cal. Ct. App. - Sept. 16, 2024)
From this domestic violence TRO opinion by Justice Rodrriguez:
”In an October 2021 e-mail — titled “Shitty human” — [D.V.] wrote, “You are not a good human being in any way shape or form. Your characteristics are all negative and the way you teach your kids is disgusting. Great tits though.”
I'm not sure why D.V. felt the need to add that last line. It's not like the recipient would read the rest of it and then say "Oh, well, at least it ended on a good note; everything's fine, then."
Monday, September 16, 2024
Lexington Ins. Co. v. Smith (9th Cir. - Sept. 16, 2024)
My thought is that the various Ninth Circuit judges here are each trying to make a point.
Judge Bumatay, joined by five other judges, would grant the petition for rehearing en banc, and explain at length (35+ single-spaced pages) why they think the panel got the decision wrong and (perhaps) why the Supreme Court should take the case up and reverse. This isn't unusual, but it's an increasing theme these days.
There's also a concurring opinion that agrees with the panel and with the denial of en banc review. That's not all that surprising either; you see those on occasion as well.
But this one's a bit unusual, for two reasons.
First, the concurrence is authored by all three of the members of the original panel. They, of course, agree with what they previously decided. But usually it's just one of them listed as the author. This time it's all three, jointly. Sort of an exclamation point.
Second, as is typical, some other Ninth Circuit judges join the concurrence as well. Sometimes you see two, or in high profile cases, even six or so. This is not surprising. After all, a majority of the judges, by definition, didn't want the case taken en banc. So sometimes the individual judges join the opinion that explains why -- but usually, most of them don't, thinking that it's unnecessary.
How many judges join the opinion here that concurs in the denial of rehearing en banc?
Sixteen.
That's a huge number. More -- much more -- than you typically see.
And it's not even a super high profile case. It's about tribal jurisdiction in an insurance case. An issue that's hardly going to make the front page of your local newspaper or become an issue in an upcoming election.
It's not just that, though. Typically, the judges that join the opinion concurring in the denial of rehearing are those active judges who voted against rehearing en banc. This time, though, the concurrence includes multiple senior judges as well -- including judges who didn't even have a vote in the en banc call.
Unusual, to say the least.
I think the liberal wing of the Ninth Circuit is trying to send a message here; namely, that this wing isn't going to sit back like usual when particular judges on the conservative side pen lengthy dissents from the denial of rehearing en banc. Instead, on occasion, at least, they're going to join the fight and show the flag. If only by identifying the number of votes on the other side -- particularly when that number is substantially larger than the number of votes recorded for the competing position.
I also sense a little bit of frustration here. Recorded in (somewhat) real time.
Wednesday, September 11, 2024
City of Gridley v. Superior Court (Cal. Ct. App. - Sept. 11, 2024)
I quite literally thought I was misreading this opinion -- or that it accidentally used the wrong word -- when I first read it.
Nope. That's actually what the lawsuit's about.
Here's how the opinion begins:
"The City of Gridley operates an electric utility that provides electricity to local residents. In this case, real parties in interest (plaintiffs) challenge the city council’s approval of reduced electric rates for residential users in September 2020. Plaintiffs believe these rates—which were in effect for about three years—exacted a tax from residential users . . . ."
Wait. Plaintiffs allege that the reduction of electricity rates constitutes the imposition of a tax? Surely the opinion means to say that the City increased electricity rates, and that that's a tax.
No. Plaintiffs are indeed challenging the City's decision to decrease electricity rates.
The trial court refused to grant summary judgment to the City. The Court of Appeal heard the City's writ and reverses.
Reducing electricity rates is not imposing a tax. Even if you don't think the reduction goes far enough.
Sounds right to me.
Tuesday, September 10, 2024
McCurry v. Singh (Cal. Ct. App. - Sept. 10, 2024)
Monday, September 09, 2024
Sunflower Alliance v. California Department of Conservation (Cal. Ct. App. - Sept. 6, 2024)
Wednesday, September 04, 2024
U.S. v. Perez-Garcia (9th Cir. - Sept. 4, 2024)
Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:
"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id.
Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.
A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).
The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).
I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."
Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.
But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.
For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:
"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.
The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .
I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"
That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)
In any event, some fairly vitriolic stuff out of the Ninth Circuit today.