Zenoff v. Sorrento Therapeutics, Inc. (9th Cir. - March 25, 2024)

After reading this opinion, I am definitely going to start my own business and follow the same gameplan.

Sorrento Therapeutics is a San Diego biotech company that was rapidly going broke; it has a ton of high-interest debt and its auditor had issued a "going concern" qualification that said it had a huge cash burn rate and might have to shut down. So at the height of the COVID epidemic, it issued a press release that discussed a recent small-scale test of one of its products, and its CEO gave a statement to Fox News in which he said:

“We want to emphasize there is a cure. There is a solution that works 100 percent. . . . If we have the neutralizing antibody in your body, you don’t need the social distancing. You can open up a society without fear.”

Wow. That's awesome. There's a cure for COVID!

The company's CEO backs up that statement, that same day, in a different interview, saying: "One of the antibodies is so powerful that at a very low concentration it is able to 100% completely prevent infection or inhibit the infection . . . . So what we’ve done is identified an antibody that recognizes the COVID-19 virus and completely inhibits its binding to the specific receptor.” The company's VP also joins the chorus, telling Fox News (again, that same day): "As soon as it is infused, that patient is now immune to the disease . . . . For the length of time, the antibody is in that system. So, if we were approved [by the FDA] today, everyone who gets that antibody can go back to work and have no fear of catching COVID19.”

You can imagine what happens to the stock price. That same day, it triples.

You've probably already figured out the problem, right? There is, in fact, no cure for COVID, and the company hasn't found one in any event. Once that gets out, the stock price tanks.

So investors sue. And the Ninth Circuit holds . . . .

That the company's statements were true. Or, at worst, Optimistic puffery.

Plus there's insufficient evidence of scienter either.

Because, in context, no one could possibly believe that the company was really saying that they'd found a cure.

Which is why that's going to be the foundation of my next business as well.

I'm going to dump hundreds of thousands of different things into beakers until one of them seems like it slightly slows down the growth of a particular cancer cell. Then I'm issuing a press release and going on the networks -- Fox News sounds good to me too -- and am telling everyone "I want to emphasize that there's a cure for cancer. There is a solution that works 100 percent. If we have the neutralizing agent in your body, you don't need to worry about cancer. You can smoke, get unnecessary x-rays, visit Chernobyl, and do whatever you like. No cancer!"

Then I'll add some random words like inhibition, STI-1399, experiment, oxidizing, Fahrvergnugen, etc. and the like for "context". 'Cause no one's really reading much of anything after seeing the word "cure" anyway.

Let's see if that gives my company's stock the bump I'm looking for.

Then I'll see you guys in the Hamptons and Newport in the summer.

Grant v. City of Long Beach (9th Cir. - March 22, 2024)

I know the Ninth Circuit was trying to be nice; indeed, generous. But appellant's counsel not only "cite[s] two cases that do not appear to exist," but also "misrepresent[s] the facts and holdings of numerous other cases cited in the brief" (citing over a dozen such authorities). It's so bad that, based on "an opening brief replete with misrepresentations and fabricated case law," the panel dismisses the appeal entirely. (The panel doesn't speculate as to why the brief contains citations to two apparently made-up cases, but that sometimes happens when people use ChatGPT to write briefs; I can't tell one way or the other whether that's the problem here.)

I read the brief. It's . . . not good.

When an attorney's brief is so bad that the appeal gets dismissed, and the client thereby injured, my take is that the attorney should generally be sanctioned and/or reported to the State Bar.

Yet the panel here apparently does neither.

This is not an attorney who's just started practicing law. The lawyer -- Angela Swan of Torrance -- has been an attorney for over twenty years.

I know that the underlying dispute is a civil rights case, and that the lawyer here is trying to do what she perceives as advancing social justice. So the panel might understandably be hesitant to be exceptionally harsh to someone on such a mission.

But, sometimes, you've got to be cruel to be kind. It doesn't help to encourage bad lawyers to take on important cases that then get dismissed for terrible lawyering.

Neptune Management Co. v. Cemetery & Funeral Bureau (Cal. Ct. App. - March 21, 2024)

It's kinda nice when resolving an appeal essentially just boils down to reading a fairly straightforward statute. Like here.

Neptune (you know, the cremation company) sells the whole "pre-need" stuff -- I love the euphemisms -- to customers. So you pay your $470 in advance to be cremated, and pursuant to a statute, that money goes into a trust fund. No problem. 

But you also pay an additional $490 for an urn, a memorial plaque, and a "cremation container" (which I suspect is just a fancy cardboard box). You don't exactly need those right now, so Neptune used to just keep that money and then give you the stuff once you died. But the Cemetery & Funeral Bureau didn't like that because Neptune didn't actually have enough urns and the like in its warehouse, so the worry was that Neptune might fold or run out of cash and leave people hanging. So they entered into an agreement a while back where Neptune agreed to have enough urns etc. in its warehouse to cover all the people to whom they had already sold the stuff in advance. 

No problem there, either.

But does the additional $490 need to go in the trust account as well?

Neptune thinks it doesn't. Sure, it's selling the urns and stuff "in advance" of the death, and the statute generally says that money like that has to go in the trust fund.

But Neptune think there's a way out. It tells its customers (in writing) that they're entitled to possession of the urn etc. now if they want, but if they'd like Neptune to hold on to 'em in the meantime (which, of course, everyone does), Neptune's fine with that -- they'll hold the stuff in their warehouse.

So Neptune says they're not selling anything "in advance" -- rather, they sold it now, and are just holding onto it, so they don't need to put the cash in a trust fund. 

The Cemetery & Funeral Bureau disagrees, and ultimately the Court of Appeal has to resolve who's right.

Justice Robie gives the right answer, and it's a fairly short disposition, because honestly, the statute itself pretty much answers the question. The law says that the money's got to go into a trust fund unless it bought "merchandise that is delivered as soon as paid for." Now, Neptune says that the urns and the like are "delivered" to the customer because they're entitled to receive the stuff (if they want) under the contract. But Justice Robie says, accurately, that that's not the normal meaning of the term "delivered," which means actually delivered. The buyer didn't, in fact, take possession of the stuff -- the were never actually handed the urns -- which instead just sat in the warehouse. So they aren't delivered. The statute is clear. The money's got to go in the trust account. End of story.

Which seems right to me. I'm not a guy who believes that the words of a statute are always the be all end all. But sometimes, they are. Like here.

So that's the proper resolution of the present appeal.

But application of a statute is never constant -- as a practical matter, there's always a dance. And the next step here seems fairly obvious to me.

If I'm Neptune, I feel like I can easily solve this problem. I just keep in my office some urns and boxes and when customers pay their $490, I say: "Great. Here's the urn and stuff." And I hand it to them.

Two seconds later, I say: "Oh, also, bonus! We offer a free warehousing service if you'd like. We'll go ahead and store these for you in our warehouse if you'd like, gratis (or for a penny). We'll give them back to you when you're dead, or whenever you ask; just let us know."

If that's what transpires, it seems equally clear to me that the money doesn't need to go in the trust account. Because the property has, in fact, been "delivered" to the customer. That you subsequently (or even pretty much simultaneously) agree to take the stuff back and store it for someone doesn't matter.

The same plain language that hoses Neptune here seems equally clearly to give them an obvious way out.

Sure, it's slightly more of a pain to keep samples of the stuff in the office for a moment so you can go through the useless formality of "delivering" them to the customer. But if that's what the statute in fact requires, then that's what we'll do, and we'll then pocket each $490 rather than putting it in a trust fund.

So a win for Neptune customers today, but I'm not quite sure it'll matter all that much in the future.

At least if Neptune has smart lawyers that read the opinion (and statute) the same way I do.

(Oh, and I get there's another case by Justice Robie, involving a different cremation company, that might be read to say that the scheme above might not work, though in that case, the cremation company was liable for a plethora of factual misstatements, which wouldn't be in the case is my hypothetical. Plus, as far as I can tell, there's nothing that stops a customer from purchasing stuff -- caskets, urns, etc. -- before death and storing it themselves (or having the seller do so) and not making the seller put the proceeds into a trust account. Home Depot doesn't have to put the wood for a pine box in a trust fund, so I suspect the cremation company wouldn't either. At a minimum, the obvious solution would just be to split up the companies; one sells the cremation (and puts the $ in trust), and another sells the box and urn. Done deal.)

N.M. v. W.K. (Cal. Ct. App. - March 20, 2024)

This is the only published opinion today (as of 3:00 p.m.) from the Ninth Circuit and California Court of Appeal, and it also seems entirely correct. It does look -- overwhelmingly -- like Husband hit Wife, likely repeatedly, and that Wife was entitled to a domestic violence restraining order. I'm glad that Wife is now out of that (acutely) horrible situation.

Just one minor error: Given the context, at the top of page 3, in the sentences that say "At a March 15, 2023 hearing, Husband was represented by counsel. Wife requested a continuance so she could seek counsel of her own. Husband’s counsel objected, saying Wife was ready to proceed with the merits of the petition," I think the last "Wife" was supposed to be "Husband".

Otherwise, spot on.

In re Ca.M (Cal. Ct. App. - March 18, 2024)

It's unusual for me to talk about two dependency cases on successive days, but I couldn't help but think about this one.

The facts are relatively straightforward. Mother and Father have five kids, the oldest of which is eight years old. Father likes to drink; a lot. He's been arrested for drunk driving before. Father also (allegedly) punches Mother in the face on occasion, including on at least one occasion in front of some of the kids. One day, while Mother and Father watched a "low-rider" event, this transpired:

"During the drive home, Father began to yell at Mother, calling her names and accusing her of infidelity. Father then punched Mother several times in the face and she demanded he stop the vehicle and let her and the children out. As she was removing Cl.M. from her car seat, Father started to drive away, dragging Mother approximately two feet. Eventually, Father drove away with Cl.M. still in the vehicle. As a result of the incident, Mother sustained severe swelling, lacerations, and bruising to her face. Mother received medical treatment at the scene by paramedics."

Multiple choice question. Based on the foregoing events, the children can be taken away from:

(A) Father.

(B) Mother.

(C) Both (A) and (B).

(D) Neither (A) nor (B).

Have your answer?

The Court of Appeal holds that the correct answer is (C). The children can be taken away from Mother because she failed to prevent Father from driving drunk with the kids.

(Perhaps because she didn't want to again be punched in the face.)

Justice Baker holds that even if the sole basis for removal was Mother's failure to prevent Father from driving drunk, that's a sufficient basis for taking the children away from both parents. In an extreme case, where the father was constantly driving drunk and the Mother was fine with it, I could imagine such a holding. But there's minimal evidence here beyond the one event that Father routinely drives drunk with the kids in the car (though I admittedly don't think this is the first time), and it's not like there's any evidence that Mother is encouraging this -- here, she's trying to get the kids out of the car when Father starts to pull away. Moreover, the domestic violence background to me seems fairly relevant; I know it's not a total defense to child endangerment, but doesn't it at least matter that Mother might be somewhat reluctant to upset Father by, say, insisting that she (rather than he) drive home when he tends to respond by punching her in the face.

Plus, think about the obvious incentive effect here. Imagine that you're Mother and, presumably, very much want to keep your children, but for whatever reason -- economic, fear of violence, BWS, etc. -- don't feel like you can just pack up and leave the father of your five young kids. Your partner hits you in the face while driving drunk, and drags you down the street when you try to get out of the car. Are you going to call the police after this holding?

Not if you're smart. Because, apparently, if you do, sure, they're going to arrest Father (as they did here), but then they're going to take your kids away from you for six months. Under such settings, yeah, you might well decide that Father driving drunk and hitting you in the face is just the "cost of doing business" as compared to the fairly unpalatable alternative of entirely losing custody of your five children.

And we wonder why some people in certain communities don't call the police, and/or child welfare authorities?

Oh, one last thing. Imagine that a father in Brentwood, or Beverly Hills, is found to occasionally drive drunk with the kids in the car. Do you think CPS is going to take away the kids from Mother based on such findings?

I strongly suspect not. Do you know any people who were occasionally as kids driven by a father who had a bit too much to drink after a party? I definitely do. Were any of them removed by CPS from the custody of both of their parents? I think not.

Does it matter that the events at issue here took place in Compton, rather than elsewhere? You think?

I'm not a fan -- at all -- of having kids watch domestic violence between their parents, or having kids be watched, or driven, by an alcoholic parent. But I'm also not a huge fan of taking five little kids away from both of their parents and being put in a foster home for six months (and potentially forever) while Mother gets lectured about how she needs to protect her kids from being driven drunk even if it means she takes several punches to the face.

Should Mother leave Father? Sure. Of course she should. But you know what? The world ain't perfect, and sometimes, we face really crappy choices. I'm not sure that very imperfect world gets better, either in the short or long term, by removing little kids from their parents because Mommy on occasion does not have the wherewithal to take shots to her face to stop Daddy from driving when he's had too much to drink.

But maybe that's just me.

F.K. v. Superior Court (Cal. Ct. App. - March 18, 2024)

I have to give kudos to Justice Baltodano for getting this published opinion out in such a timely fashion.

Mother has an alcohol abuse (and domestic violence) problem, so she gets her two kids -- one of whom is 18 months old -- temporarily taken away from her. There's a review hearing six months later, and in the meantime, Mother does a lot of good stuff; goes to counseling, doesn't miss appointments, has insight into some of her problem, etc. But she's got some bad stuff too; a positive alcohol test, a couple of missed tests (but a negative result the next day), questionable insight on some facets of her problems, etc. (She thinks everyone isn't giving her enough deference to the fact that she drinks in part because her twin sister died, but while I know that's traumatic, her twin sister died when she was two months old, and Mother's a grown ass woman at this point. So I'm not really sure this is a major point in her favor.)

At the six month review hearing, the trial court mistakenly thinks that because Mother wasn't compliant with all aspects of her treatment, the kid needs to be taken away permanently. That's wrong, and the Court of Appeal's opinion so holds. The statute allows the trial court to extend the thing for another six months, at least when the child is (as here) under three years old. Hence the reversal.

All that's right. We want to see if Mother can possibly get better. Six months is sometimes enough time to decide, but sometimes it's not. As here. The trial court has discretion, so it needs to exercise it.

The reason I say that Justice Baltodano (alongside the rest of the panel) deserves kudos is because:

(1) Trial counsel didn't file an appeal -- even though they're supposed to if there's any arguable issue (which there was here) -- so all that the Court of Appeal had was the Mother's pro se submission. Which I suspect wasn't all that awesome. So Justice Baltodano (and his clerks) had to wade through all that stuff himself. It'd have been easy just to skim through the thing and affirm. Kudos for putting in the effort.

(2) The Court of Appeal resolved the petition -- and rightly so -- super quickly. The six month review hearing at issue was in December of 2023, a mere three months ago. There's a Section 366.26 hearing (to decides what to do with the child now that she's been removed from Mother) scheduled in the trial court for March 26, 2024 -- i.e., next week. The proceedings in the Court of Appeal get briefed, and argument scheduled, super rapidly, with the oral argument taking place last Wednesday. And, today, the opinion -- a published one, at that. Speedy justice. Kudos again, to the entire team, for the effort.

Wood v. Superior Court (Cal. Ct. App. - March 14, 2024)

On a lighter note, I totally do not care if Samantha Wood wants to call herself "Candi Bimbo Doll." She wanted to legally change her name to that, but the trial court refused to grant the name change (despite no opposition) on the ground that calling someone a "bimbo" is derogatory, and the Court of Appeal -- with no opposition to Wood's appeal -- reverses. So she gets to legally change her name to Candi Bimbo Doll. Go crazy, girl.

(Side note: This real-life example somewhat reminds me of the scene in Superbad where the police interview "McLovin" after the liquor store robbery and describe their interaction with someone named "Phuck". Classic. Scroll to the 4 minute mark if you'd like.)

Justice Richman notes that there's a movement to "take back" the word "bimbo," so if that's one's motivation, okay, great. Maybe not what I'd personally spend all my time on, but if that floats your boat, feel free. We generally let you change your name to whatever you'd like, as long as there's no confusion. Now, there are, in fact, limits to that (e.g., the case that refused to allow someone to change his name to "Misteri Nigger"), and those limits are, I suspect, a little bit broader than Justice Richman's opinion might suggest. But I agree that "bimbo" isn't really outside those limits, at least in this context.

But I gotta add that "this context" seems pretty important to me. And that context isn't exactly revealed anywhere in Justice Richman's opinion, beyond the mere fact -- as recounted by the opinion -- that Ms. Wood wants to change her name, says that she's "already known by" that it, says that she has "already embraced it and taken numerous, permanent steps to secure it," and that she said to the trial judge "I promise I know what I’m requesting."

What you don't know from reading the opinion -- and I can't find the briefs, so I don't know one way or the other if Justice Richman knows -- is what exactly Ms. Wood means by all that. It doesn't take long to find out that Ms. Wood is more commonly known by her stage name, Juliette Stray. Who's a transsexual adult film performer with, uh, particularly unusual assets.

There's only so much I can post that's not NSFW, but here's an article from the Daily Star that includes some details about Ms. Wood, alongside some pictures. Feel free to Google more at your leisure, with the caveat that maybe "incognito" mode (and not doing so at work) is the way to go on this one.

Suffice it to say that Ms. Wood wants to be called a "bimbo" because that's the style she's both known and going for. She's sex-positive in precisely this way. Now, some might find that derogatory, but others might find it empowering. No reason, IMHO, for the law to take a definitive side in that debate.

So let your freak flag fly, as they say.

("They," in this case, being the Court of Appeal.)

People v. Woodward (Cal. Ct. App. - March 14, 2024)

As I read the thing, I was very conflicted about this opinion, and remain a little bit so. But I must say that the panel did an extremely good job of anticipating the exact things that were going through my mind as I read it. I'm still not sure what the right answer is. But I nonetheless thing the panel did an outstanding job.

The question is whether John Woodward and be tried yet again for allegedly killing Laurie Houts. Her murder occurred over 30 years ago, in 1992. Woodward was already tried twice for that crime, both times shortly after the murder (e.g., within 4 years). The jury deadlocked both times, and understandably so, because the evidence against Woodward wasn't very strong at all. Ms. Houts was strangled by a rope in her car, and Mr. Woodward's fingerprints were found on the outside of the vehicle, and there were some fibers on the rope that were at least similar to a pair of sweatpants owned by him. But Woodward lived with Ms. Hout's boyfriend, there were no fingerprints on the inside of the car, and there wasn't really a very strong motive for the crime. Which I'm sure is why jurors in both trials were slightly leaning towards an acquittal; 8 to 4 in favor of acquittal the first time, and 7 to 5 in favor of acquittal the second time.

After the second acquittal, the trial judge dismissed the charges in the interests of justice, which is allowed under California law. The basic reason was simple: there just wasn't enough evidence to convict, which is what the trial judge said in the written (and oral) order. Given the evidence at trial, any future trial would likely come out the same way -- a deadlock (at best). So there was no point in trying him yet a third -- or fourth, or whatever -- time. Charges dismissed.

Seems reasonable.

Fast forward nearly two decades. Now there's new DNA technology, and they allegedly find some of Mr. Woodward's DNA on the rope. Exact match. So the Santa Clara District Attorney refiles.

The problem is the Double Jeopardy Clause. When a judge dismisses a charge based on insufficient evidence, that's jeopardy. You can't refile. And the judge here definitely did so; the minute order was replete with references to the evidence being insufficient.

So you could see why someone might be torn. On the one hand, it looks like Mr. Woodward might well have killed Ms. Houts, and you don't want someone to get away with cold-blooded murder. On the other hand, there are darn good reasons for the Double Jeopardy Clause, and there's no exception for "Oh, but we have much better evidence now." When you're acquitted, you can't be retried. Even if we know (or at least strongly suspect) that you did it and we could convict you if we were allowed to try you again.

Here's the rub, though. There's at least an argument that the trial judge wasn't "really" dismissing the charges for insufficient evidence. And when you read the minute order, you can see -- or at least I have an incredibly strong feeling about -- what the trial judge was really doing. The judge wasn't really saying that no rational juror could convict, which is the (true) standard for insufficient evidence. After all, 9 jurors did, in fact, vote to convict -- 4 the first time, and 5 the second time -- and it didn't really seem like the trial judge was saying those people were nutty. 

Instead, to me, what the judge was really saying was that, based on the evidence and the results of the first two trials, there's no way that the result would be different. You weren't going to get a unanimous verdict that convicted the guy. So what's the point? Dismiss the charges.

Which makes sense. Indeed, it's exactly what I would have done, at the time, in the trial judge's shoes.

But (1) are we really sure that's what the trial judge meant, particularly given the number of times the minute order invokes the magic words "insufficient evidence," and (2) even if we are, what are the double jeopardy implications of that type of dismissal, which presumably doesn't happen every day?

Tough questions all around.

But Justice Danner has an answer, and as I read her opinion, she persuaded me that she's likely right (with the caveat that I haven't fully digested the underlying opinion yet). There's a California Supreme Court case called People v. Hatch that seems pretty darn similar to the current case, and that generally makes it somewhat difficult to hold that dismissals in the interests of justice (like this one) -- which are sometimes for insufficient evidence, and hence bar a retrial -- are in fact really for insufficient evidence rather than just amorphously "in the interests of justice" (and thus don't bar a retrial).

Justice Danner does a great job in that regard. There are differences, to be sure, but it does, in fact, seem like the present case is fairly similar to Hatch. So if a retrial wasn't barred in Hatch, then it's not barred here.

Fair enough.

But after reading roughly 30 or so pages of Justice Danner's opinion, the following idea popped into my head. "Okay, that's fine," my head said, "I get that the California Supreme Court apparently thinks that the Double Jeopardy Clause doesn't bar a retrial in these situations. But that's (among other things) a federal constitutional principle. There's always federal habeas later. I wonder if the federal courts are ultimately going to agree with this. Particularly the Ninth Circuit, which isn't exactly equivalent (even these days) to the California Supreme Court in 2000."

Because I could definitely see -- in fact I'm certain that -- particular Ninth Circuit panels would not view this case the same way that Justice Brown saw it in Hatch.

Shortly thereafter, one I was finished reading Justice Danner's opinion, boom, up comes Justice Lie's concurrence. In which she makes a similar point to the one that popped into my head, albeit from a slightly different perspective.

Justice Lie agrees that the case is similar to Hatch and says that, for that reason, she's bound to the result here. But she says -- and she's pretty persuasive on this point -- that federal double jeopardy law has definitely advanced since Hatch was decided in 2000, and in a manner not exactly favorable to Hatch. She says that, as a lower court, she's bound by the California Supreme Court's decision, so she concurs, but "respectfully urge[s] the California Supreme Court to reexamine the continuing vitality of Hatch’s narrow definition of an acquittal under federal double jeopardy principles."

Darn good point.

But that left me with one final thought.

It seems to me that neither Justices Danner nor Lie have fully articulated why they come out the way they do. (I'll add that Justice Bromberg joins Justice Danner's opinion -- my, what an incredibly smart panel, by the way.) For this reason:

Everyone agrees that the relevant double jeopardy rule is governed by federal, not state, law. (It's in the federal Constitution, after all.) Sure, the California Supreme Court said X in Hatch, and this case is very much like X, and as a general matter, lower state courts are bound to follow superior state tribunals.

But not when there's an intervening decision of an even higher court; in this case, the United States Supreme Court. Particularly on issues, as here, of federal law.

So, for Justice Danner, my question is why she doesn't dissent, rather than concur, if she thinks -- as she seems to -- that the intervening decisions of Evans and McElrath are inconsistent with Hatch. If that's the case (she says "But for our continuing duty to follow Hatch, I would instead conclude the section 1385 dismissal here is an acquittal that bars retrial under Evans and McElrath"), then the lower court has the right -- indeed, the duty -- to depart from state precedent and follow the intervening decision of the higher court. So why not dissent? (She further says that "Evans and McElrath 'erode the analytical foundations' of Hatch," which I think is darn similar to a recent analogous Ninth Circuit opinion that refused to follow existing Ninth Circuit precedent in light of an intervening Supreme Court decision that "undercut" that circuit precedent.)

My question for Justice Danner (and Justice Bromberg) is a similar one. Justice Danner's opinion doesn't even discuss the Supreme Court's intervening decision in Evans or Justice Lie's concurring argument that Evans is inconsistent with Hatch. That seems to me a huge problem, for the reasons identified above. Don't you have to explain why you think the state precedent is consistent with intervening higher court authority? Because otherwise, you've got to follow the latter? Yes, in most cases, it's sufficient to say "We're a lower court, or boss the California Supreme Court has decided X, and we've got X here, so that's what we're doing." But that's not sufficient when, as where, the boss of your boss (the United States Supreme Court) has said Y after your boss said X and Y is arguably -- as argued by your co-worker Justice Lie -- inconsistent with X.

So it seems to me that both sides have to address this point, albeit from slightly different perspectives. Justice Lie has to explain  -- or at least it'd be helpful to explain -- why she follows Hatch instead of Evans if she truly thinks they're inconsistent, and Justice Danner has to explain (or at least it be helpful to explain) why she (probably) thinks Hatch and Evans are consistent.

Those are my thoughts for the day. 

(Now I gotta get back to trying to figure out why Lufthansa just cancelled my flight to Budapest.)

In re Seumanu (Cal. Ct. App. - March 11, 2024)

I legitimately would like to know the answer to this question:

Why write a three-judge concurrence?

Justice Streeter authors a thoughtful 46-page opinion involving complicated details about certificates of appealability in state habeas cases. Then Justice Goldman adds a brief three-page concurrence that suggests helpful ways that the parties can help assemble the record in such cases, with a suggestion that the Judicial Council get involved.

All great thoughts.

But everyone joins Justice Streeter's opinion, and everyone joins Justice Goldman's concurrence.

So why not just issue one opinion with both thoughts? Particularly since everyone agrees?

Justice Streeter notes at the outset of the opinion that a three judge concurrence is a "rare but not unknown" occurrence. Sure enough. But why take that form at all?

I understand that concurrences sometimes involve suggested changes or critiques of existing law. But opinions can -- and often do -- contain those same things. Since everyone agrees, why not put them all together?

The only thing I can think of is that maybe the author of the opinion wants to give credit where credit is due and identify the author of the concurrence as the originator of whatever thoughts are expressed therein. Fair enough, I guess. But opinions are often products of a collaborative enterprise. That's why we have panels, after all. If everyone agrees, why not just get everyone to sign on -- who's listed as the "author" of the thing seems to matter little (to me, anyway).

Plus, it's perhaps a marginal point, but as a persuasive matter, a suggested change from an "opinion" might be a little more powerful than a suggested change from a "concurrence."

No big deal either way, I assume. I just wonder why the panel decided against simply plopping Justice Goldman's three pages into Justice Streeter's 46-page missive. Or if there's any special reason of which I'm unaware as to why a three-judge concurrence is the "proper" way to raise these sorts of things.

Kalulu v. Garland (9th Cir. - March 11, 2024)

Judge Sanchez authors a dissent that helpfully summarizes both what's at stake as well as his overall position on the matter. He says:

"Petitioner Milly Kalulu, a native of Zambia, alleges she was persecuted because she is a lesbian in a country that criminalizes same-sex relationships. When her relationship with a woman was discovered by her girlfriend’s brothers, she was beaten, whipped, injected with an unknown substance, stabbed in the chest, doused with gasoline, and threatened with death over several violent encounters. Kalulu submitted documentary evidence corroborating her claims, including a copy of her medical report, a declaration from her aunt in California, and declarations from several Zambians who witnessed the attacks on her. The agency, however, dismissed this evidence based on unsupportable or trivial grounds."

I might add that Ms. Kalulu came over here with her Zambian girl scout troupe and lived with her aunt, so suspect that she's quite young as well. Oh, and like many women like Zambia, she's HIV-positive, in case you need some additional sympathetic facts.

Judge Van Dyke nonetheless authors a majority opinion that largely contends that Ms. Kalulu was not a credible witness. The footnotes of his opinion are -- as is sometimes the case -- where things tend to get a bit snippy, or at least directly responsive. For example, from footnote 11:

"The dissent claims the majority does not “dispute that the vast majority of the agency’s credibility findings” are not supported by sufficient evidence. But we do. By the majority’s count, at least five of the agency’s factual bases for its adverse credibility determination are supported. Even assuming all the other findings are unsupported, barely more than one-half of the agency’s findings related to credibility are unsupported, hardly a “vast majority.” Even by the dissent’s count, fully one-third of the agency’s findings remain supported. Apparently “vast majority” too is being affected by inflation."

Though, somewhat charitably, that same footnote goes on to say that "We don’t point this out to be pedantic or to manufacture disagreement where our dissenting colleague is admirably trying to find common ground. Rather, this ungenerous characterization of the majority’s position relates back to the fundamental problems with the dissent’s novel ratio test." That said, at least the "inflation" point was, I think, really more about being snarky ("pedantic") than some fundamental doctrinal problem with the dissent's alternative approach.

Still, it definitely livened things up.

Speaking of livening things up, I also had to smile a little bit with the deadpan manner in which Judge Van Dyke ended the next footnote, which concludes with:

"93.2% of statistics give the illusion of quantitative certainty while providing very little in the way of substance."

Though, as a writing tip, pretty much everyone says that you shouldn't begin a sentence with a numeral.

It was nonetheless funny.

VFLA Eventco v. William Morris Endeavor Ent. (Cal. Ct. App. - March 6, 2024)

I get it. I really do. Justice Viramontes does an excellent job going through the contract and explaining how the force majeure clause gets applied to a concert festival that was cancelled during COVID. It's a persuasive analysis, and I can't really fault any of the doctrinal things he says.

So, yep, under American contract law, the defendant is entitled to summary judgment. The artist gets to deep the deposit. That's legally right under existing doctrine.

But imagine that you're just reasoning from first principles. Or perhaps creating your own country (or justice system). What's the just result -- again, I'm asking about justice -- in this hypothetical:

Organizer wants to put on a music festival. It's willing to pay Lizzo $5 million (!) to show up and sing. Lizzo wants to make sure the money's coming, so asks that it be deposited with her agent, and Organizer agrees. 

Four months later, COVID hits, and Los Angeles prohibits public gatherings, including (obviously) the planned festival. So no concert, and (obviously) no singing or gate receipts.

Should Lizzo get to keep the $5 million?

I think not. Someone's going to be stiffed, obviously; either Lizzo or the Organizer. But, in truth, Lizzo has lost nothing, whereas the Organizer's lost tons. Lizzo loses out on her $5 million payday, but that's because of COVID. Sorry about that, but at least she's not out of pocket. Nor, in truth, has she really lost any opportunities either, because, yeah, she (at least hypothetically) could have sung at a different concert if she hadn't committed to the festival, but that one would have been cancelled too.

Whereas Organizer is definitely out real money. It presumably had to pay for tons of stuff in advance. To stiff it for another $5 million seems entirely unwarranted. Particularly when it's otherwise going to someone who only lost an "opportunity" for an absurdly high payday.

The Court of Appeal nonetheless lets Lizzo keep the money. On the theory that parties get to allocate the risk of loss however they want, and here, the best interpretation of a far-from-entirely-clear force majeure clause is that Lizzo gets to keep the thing.

Sure enough.

But not entirely just, either.

Reiman v. Vasquez (9th Cir. - March 5, 2024)

I typically talk about opinions in which I think the appellate court was (at least partially) wrong, on the theory that it's not all that useful for me to just mimic what the opinion already says. No need for an echo chamber. (Though contemporary media viewing preferences might suggest a different reality.)

I'm nonetheless going to make an exception this time, because I would have been seriously disappointed if Judge Milan Smith had come out the other way in this one.

The Ninth Circuit holds that when a social worker (allegedly) deliberately lies to a court in an effort to take two kids away from their parents for a couple of months, that's not something to which immunity -- either absolute or qualified -- applies.

Spot on right.

Maybe there were other things going on here that aren't reflected in the opinion. But at least facially, what transpired here is chilling. A kid falls out of bed and then seriously overaggressive social workers take the kids away from the family without notice, in part by falsely telling the court that the parents were not available for the hearing -- even though the parents were repeatedly calling the social workers to try to get in touch (with the social workers refusing to take the calls or get back to them).

You could see that happening to anyone.

If what's in the opinion is true, I'd definitely be giving the parents some money were I one of the jurors.

People v. Hardin (Cal. Supreme Ct. - March 4, 2024)

Here's proof that we live in California.

Background: When the Supreme Court decided that the death -- and, later, life without parole (LWOP) -- sentences weren't okay for juveniles, California passed a statute that allowed eventual parole hearings for people who committed their crimes when they were under 18. (The California Supreme Court also added impetus to this effort, since it held that determinate sentences that effectively kept juveniles in prison for their entire lives -- e.g., sentences of 300 years -- were also impermissible.)

Thereafter, since we're a left-leaning jurisdiction, the Legislature gradually ratcheted up the relevant age cutoff; first to 23, then to 26, in recognition that frontal cortexes don't suddenly become fully functional at the ripe old age of 18. So, now, if you committed your offense at age 25 or younger, you're entitled to at least a shot at parole, albeit maybe only after a quarter century or so in prison. Still, you get an eventual attempt.

With one important caveat.

If you were under 18 at the time of your crime, the Supreme Court already said that LWOP sentences aren't okay for you. And if you were under 26 and didn't receive an LWOP sentence, then, great, you still have a shot.

But if you were between 18 and 25 when you committed your crime and got sentenced to LWOP, tough for you. No parole hearing.

Petitioner here received an LWOP sentence for a murder he committed when he was 25. He says that it violates equal protection to give every other youthful offender, but not people like him (i.e., people sentenced to LWOP for crimes between their 18th and 26th birthdays), the ability to receive a parole hearing. 

The California Supreme Court rejects this claim, and, applying rational basis review, holds that it isn't unconstitutional to do what the Legislature has done. Even though people like Mr. Hardin may not have their frontal lobes fully developed at the time of their crime, the Legislature might rationally have felt that certain serious crimes (e.g., those for which the offender received an LWOP sentence -- generally, first-degree murder with special circumstances) should still be punished with life in prison even though the offender's brain wasn't fully developed.

In so holding, I suspect that California is not different from the overwhelming majority of -- or perhaps all -- other state supreme courts. I'd be surprised if other state supreme courts would readily go the other way and find the underlying distinction unconstitutional. Indeed, in most states (say, Alabama), I'm very confident that the state supreme court would literally laugh out loud at the mere mention of any such claim.

So in that way, California is, I suspect, no outlier.

But here's where we're different.

First, there's a dissent. One by Justice Liu, and one by Justice Evans. They think it's unconstitutional for a state to recognize that juvenile offenders have undeveloped brains and hence can potentially change and be amenable to rehabilitation and yet categorically exclude certain youthful offenders (e.g., LWOP offenders) from possible parole. Plus, both of them -- particularly Justice Evans -- note that there are underlying racial implications of this rule that both highlight its adverse consequences as well as maybe enhance the type of rational basis scrutiny that is otherwise employed in evaluating these principles.

That's different than most other states. You wouldn't see anything like that in most other state supreme courts. Particularly those in which state supreme court justices are directly elected (e.g., Texas, where such judges get elected in partisan elections.)

Second, even the majority is overtly sympathetic to Mr. Hardin's claim. You wouldn't see that in virtually any other state. Justice Kruger's opinion repeatedly mentions that the Court of Appeal has often encouraged the Legislature to revisit this issue and to think about providing potential parole hearings for all youthful offenders. Her majority opinion just says that this is a legislative issue, rather than an appropriate task for the courts. (The dissents obviously disagree.)

You can read the entire 118 pages (!) if you want. Both sides do a great job articulating their positions. Plus, it's the contemporary California Supreme Court, in which you get to view a lot of high-pitched dissents these days. So something relatively unusual. (Even then, it's nothing like the U.S. Supreme Court; here, both sides are incredibly respectful to the other's position, notwithstanding their competing views.)

I'll just say one other thing. Justices Liu and Evans make a strong argument in favor of providing at least the possibility of parole for youthful offenders, but honestly, I think that the true fight here is over LWOP sentences themselves. Justices Liu and Evans are surely correct when they say that people who commit even horrible crimes at age 25 may potentially change after, say, a quarter century in prison and thus at least possibly be worthy of a life outside of it.

But what's true for a 25 year old is also true for someone who commits that same offense at age 26. People can change. Yes, people at 18 (or 25) are perhaps more capable of changing than people at 26 (or even 40), as their brains develop and otherwise. But there's no categorical distinction. Some people are who they are at 20, and never change, whereas others are capable of even profound change at a much later stage in life.

Line-drawing is, of course, inherently arbitrary, and it seems absurd to say that someone who commits a murder the day before their 18th birthday should always get a parole hearing 25 years later (regardless of the severity of the crime) but that they should never receive one if they commit that same offense one day later. The true distinction here isn't really about the level of brain development. It's instead really a fight about whether people deserve at least a potential chance at proving that they're a different person now than the one who committed prior crime.

For some, the answer is a resounding "No" -- that some crimes are so heinous and reflect a certain type of character that no rehabilitation or chance at redemption is either possible or appropriate. Others take a contrary view.

(Here's the best 90-second articulation, IMHO, of the latter. Courtesy of Morgan Freeman. Start it at the 30 second mark.)

Regardless, today's opinion is uniquely Californian, I think. For better or worse.