Thursday, May 30, 2024

People v. Superior Court (Cal. Ct. App. - May 30, 2024)

The majority and the concurring justice disagree somewhat on the reasons why. But both agree -- in my view, entirely correctly -- that while it might be second degree murder if you down a massive amount of oxycodone, speed recklessly, and crash into someone, it's not second degree murder if you chug the oxy, speed recklessly, crash yourself, and then half an hour later and a half-mile away, a truck driver doesn't see the resulting traffic jam and slams into someone, killing them.

This is a classic example, I think, of the difference between but-for causation and proximate causation. Did the driver's conduct result in death? Yes. If she hadn't done what she did, someone currently dead would still be alive. And did the defendant have the requisite mens rea for a murder conviction? Sure. At least at the time she took the oxy and decided to drive recklessly. (Maybe not, however, during the half hour she was totally out of it and wouldn't get out of the vehicle.)

But but-for causation isn't sufficient for murder. Otherwise every mother of a murderer would themselves be potentially guilty as well. There's got to be proximate cause -- something for which, unfortunately, there is no set bright line rule, but that's why we have incredibly bright and sophisticated judges, as well as the resulting common law.

And, here, a murder charge is simply a bridge too far.

Tuesday, May 28, 2024

Key v. Tyler (Cal. Ct. App. - May 28, 2024)

The sheer volume and duration of this probate litigation between sisters confirms that, sometimes, one of the worst decisions you can make is to leave a ton of money to your children upon your death.

This latest saga involves a no-contest clause, and the issue is whether one of the sisters stands to lose every penny to which she was entitled under her parents' trust because she filed an earlier contest against her sister. The Court of Appeal answers: Yes.

The litigation saga is not yet over. Not by a longshot. The trial court still has to answer whether the earlier contest was filed without probable cause. Then the loser will appeal, etc. (There are a ton of ancillary suits involving lawyers, litigation funders, etc. Ugh.)

At least the parents aren't around to see the resulting debacle.

Wednesday, May 22, 2024

Campbell v. LAUSD (Cal. Ct. App. - May 22, 2024)

What do you have to do to be fired as a teacher from the L.A. Unified School District, you might ask?

Honestly, I don't know. But apparently being "absent or tardy almost 38% of her workdays for the 2015–2016 school year and 45% of her workdays for the following school year" will do the trick.

John Sandy Campbell gets fired, and everyone affirms.

Tuesday, May 21, 2024

U.S. v. Cloud (9th Cir. - May 21, 2024)

Imagine that you're a U.S. Attorney and your office commits a huge Brady violation in a major murder case. You've got text messages from the boyfriend of your major eyewitness at trial to the lead FBI agent on the case that say that she's willing to alter her testimony and "testify to whatever you need her to" in return for certain benefits (namely, dropping charges against the boyfriend), and unless she gets them, she's going to "ple[ad] the 5th and say she don’t remember anything." This, by the way, the night before she's scheduled to testify at the trial.

But the AUSA's office doesn't disclose those text messages to the defense -- or earlier, similar messages either. Indeed, the next morning, as the trial's about the resume, defense counsel asks the prosecutors in open court "whether there was anything they wanted to bring up—they responded that there was not."

Defense counsel then tells the court about the text messages that the government didn't disclose. Texts that the defense serendipitously discovered from another source.

At which point the district court judge -- understandably -- goes ballistic. They call the witness to the stand and she admits "stand that she was willing to shape her testimony in exchange for receiving these benefits. When asked, “[Y]ou were willing to say whatever they wanted you to say . . . . That’s what you were willing to do, correct?,” she responded, “Yeah.” The court then followed up with a final question: “You were willing to change your testimony based upon whether or not you got this benefit; is that right?” Esmeralda offered an unequivocal “Yes” in response."

So the trial court excludes her testimony and makes a finding "that the Government’s 'egregious' conduct violated Brady." It also sanctions the government, making it pay "$4,844.68 (an amount that reflected the defense’s accounting) to the Federal Defenders of Eastern Washington & Idaho and $216.00 (the amount paid to jurors while they sat idle) to the district court clerk."

As a result, the government's down around five grand -- almost all of which it was going to pay to the public defender's office anyway, FWIW.

Faced with these circumstances, which course of conduct would personally you pursue?

A. Take your lumps. Pay the five grand, be happy that the defendant was convicted at trial despite your screw up -- and sentenced to multiple life terms, no less -- and go home. Or:

B. Appeal the $5,000 sanction order.

The U.S. Attorney's office elects to do (B). Resulting in more expense for lawyers on both sides of the appeal -- which the government itself pays for, and is surely many multiples of $5,000 -- plus losing the appeal anyway and resulting in a published opinion that recounts all the nasty details of what transpired at trial.

Seem like (A) might have been the preferable choice.

Monday, May 20, 2024

People v. Carter (Cal. Supreme Ct. - May 20, 2024)

It does seem at least a little bit wrong that someone committed to a hospital as a sexually violent predator should go 12 full years without a trial, no?

I understand that, sometimes, you're waiting to try to get better in the meantime, so that the result of the trial is more likely to be in your favor.

But having to wait over two full years to be "reevaluated" by your doctors seems quite a bit too long.

That's the backstory here, anyway.

(Though my guess would be that the petitioner, Ishmael Carter, will still be held at the hospital for a long period of time -- perhaps forever -- notwithstanding today's result.)

Thursday, May 16, 2024

Lorch v. Superior Court (Cal. Ct. App. - May 16, 2024)

In state court, if you're assigned an "all-purpose" judge, you generally have to "paper" them (CCP 170.6) within 10 days. But if you're in a "master calendar" court, once you get assigned the particular judge for trial, you have to challenge them basically immediately. That way, the master calendar judge can promptly get your trial scheduled before a new judge.

San Diego is an "all-purpose" court, but sometimes, when you're scheduled for trial, your particular judge is too busy, so you get bounced to a new judge for trial.

San Diego's local rules -- Rule 2.1.3 -- says that in such settings, your "all-purpose" judge magically turns into a "master calendar" judge, so you've got to make any peremptory challenges immediately.

The Court of Appeal holds that Rule 2.1.3 is too cute by half, and impermissibly conflicts with CCP 170.6.

So San Diego will have to try a different way to get its trials assigned to open courtrooms. One that's both consistent with CCP 170.6 and yet lets litigants timely challenge judges if they want.

POSTSCRIPT - A (very informed) reader tells me that San Diego has already dealt with this problem; indeed, did so last month, before Court of Appeal published Lorch. It created a master calendar judge (the supervising judge), and let all-purpose judges assign the case to the master calendar judge if the case is ready for trial but the all-purpose judge isn't ready. Voila! Problem solved. (Or seems to solve it as far as I can see; this solution seems cute but not 150% cute.)

Wednesday, May 15, 2024

People v. Ellis (Cal. Ct. App. - May 15, 2024)

This opinion by Justice Yegan contains less than 425 words. It is a page and a half long. It doesn't contain a single case citation. The briefs themselves were almost assuredly many multiples of this length -- and likely depth.

The opinion contains eight different alleged reasons for affirming the decision below. All but the last of these consists of but a single sentence. (The final reason is four sentences: That smuggling marijuana in prison is a serious crime.) The longest of these reasons entails 28 words; the shortest, a mere four words.

I would leave dispositions like this one unpublished.

(Understanding, of course, that justices get to decide for themselves whether their opinions allegedly meet the standards for publication established by Rule 8.1105(c), and that different justices sometimes have markedly different subjective tastes in this regard.)

Tuesday, May 14, 2024

D.K. v. Office of Admin. Hrgs. (Cal. Ct. App. - May 14, 2024)

Here are the first three paragraphs of the "Background" section of this opinion:

"D.K. was found incompetent to stand trial (IST) and committed to the Department of State Hospitals (DSH) by the Orange County Superior Court. D.K. is a patient at Napa State Hospital (NSH) and has been diagnosed with “[u]nspecified schizophrenia spectrum and other psychotic disorder.”

After D.K.’s transfer to NSH, DSH filed a petition with the Office of Administrative Hearings (OAH) for an interim order to compel involuntary medication of D.K. with antipsychotic medication. . . .

Pursuant to section 1370, subdivision (a)(2)(D)(i), an administrative law judge (ALJ) conducted an evidentiary hearing on January 20, 2023."

That's a fair number of acronyms to start out, eh?

The "IST" one seemed particularly unusual. The opinion only uses the acronym three times. Seems like you could just write it out.

But as long as everyone know what you mean, it probably doesn't really matter much.

Friday, May 10, 2024

Bassi v. Bassi (Cal. Ct. App. - May 9, 2024)

You see exceptionally vituperative divorce cases occasionally in the Court of Appeal, though I suspect that most of them get resolved in unpublished opinions. This one, though, gets published.

When I read them, I often think -- as I did here -- "Wow. Just imagine being married to someone for that long, having children and grandchildren with them, being in a highly remunerative and seemingly happy marriage with them for decades and then getting divorced and having your spouse just totally go off the rails with relentless absolutely crazy litigation and abuse." You've gotta be massively surprised when that happens, no?

You can read the whole opinion about how one spouse has to get the other declared a vexatious litigant, obtain a domestic violence restraining order against them, get tens (hundreds?) of thousands of dollars in sanctions, etc. Suffice it to say that one of the spouses did not take the divorce well. At all.

(Not that the other had a field day either, obviously.)

Divorces sometimes bring out the absolute worst in people, sadly.

Wednesday, May 08, 2024

Doe v. Bonta (9th Cir. - May 8, 2024)

There's a lot about this Ninth Circuit opinion that's not surprising at all.

It's a lawsuit brought by some gun owners in California who don't like that the Legislature recently passed a law that says that identifying information about who has a concealed carry permit or who buys various ammunition -- which is already collected by the state and disseminated to a plethora of law enforcement officials -- also gets to be used (though kept confidential) by specific academic centers at UC Davis and Stanford "created to do research on firearm violence, in order to inform policy and assist the legislature in enacting appropriate legislation." Plaintiffs say that violates the Second Amendment.

It's not surprising that someone decided to bring that lawsuit. Some people really like their guns, and some people really don't like any government involvement with them at all. So pretty much anyone would have predicted that once California passed the underlying statute, some gun owner somewhere would sue.

Similarly, it's not surprising that plaintiffs lost. Both in the district court -- on a motion to dismiss -- and in the Ninth Circuit. Without dissent (and even with Judge Bumatay on the panel). There's surely a right to informational privacy at some level, but the biographical information at issue isn't all that intimate, and it's protected from public dissemination anyway, and the text of the Second Amendment only covers the right to bear arms, not to keep the stuff secret from a Legislatively-chosen group of researchers who are helping the Legislature draft policy, particularly when numerous other public officials already have unchallenged access to this same information. You can read more in the Ninth Circuit opinion as to why plaintiffs lose, but, honestly, the result shouldn't surprise anyone. Plaintiffs would lose even in the current Supreme Court; fairly clearly, in my opinion.

The only thing that surprised me, though, was who was suing.

The plaintiffs themselves are John Does. That makes sense; the whole point of their lawsuit is that they don't want to be identified.

I strongly suspected that their counsel would be one of the especially-active public interest groups that commonly take on these types of cases. Either Second-Amendment-specific groups that like to file even the most aggressive litigation or the usual conservative public interest firms.

Nope. The attorneys on this case are from . . . Snell & Wilmer.

Sort of off brand for a regular near-AmLaw100 firm, right? Particularly if it's pro bono. You'd think they'd go for more traditional help-the-needy stuff. Certainly rather than a fairly-clearly-losing Second Amendment fight, I would have thought.

Anyway, that's the only unusual thing here. Otherwise, pretty much how everyone would expect this thing to go. 

Tuesday, May 07, 2024

Naranjo v. Spectrum Security Svcs. (Cal. Supreme Ct. - May 6, 2024)

It's notoriously difficult to explain the different types of mens rea requirements imposed by criminal laws to first-year law students. It's perhaps even more difficult to explain to this audience -- or anyone -- similar mens rea requirements that may be imposed in the civil context; in particular, by civil statutes that impose civil penalties or consequences for "knowing and wilful" misconduct. What exactly does that mean? Does it mean that you've got to know that your conduct is unlawful, notwithstanding the usual principle that ignorance of the law is no excuse? Or does it merely signify that you need to know the factual predicates of what you've done, regardless of your subjective belief that this conduct is lawful?

The short answer is: It depends. On context as well as a boatload of other things.

Which, in truth, is not a particularly helpful answer, I know. But it's the best one we have.

(Or at least the best one that doesn't take up 20,000+ words.)

The California Supreme Court has to wade into all this in deciding this opinion, which holds that, in this particular context, the required mental state of "knowing" is belied by a good faith belief in the legality of one's conduct. The Court makes clear: That's not always the case, by any means. But it unanimously holds that it's true here.

Justice Kruger's discussion three-quarters of the way through the opinion is probably as good as one can get on this issue. It's fuzzy. It depends on context. But, here, the Legislature probably didn't intend to penalize employers for good faith mistakes -- including but not limited to good faith mistakes regarding legality -- for errors made on a wage statement. You can still sue for injunctive relief and fees. But not statutory penalties. Sorry about that, but that's the best way we can harmonize the statute as a whole.

But as for the larger epistemological question of what it means to "know" something: well, for better or worse, we're going to have to leave that one for the philosophy crowd.

Good luck with that.

Thursday, May 02, 2024

Masimo Corp. v. The Vanderpool Law Firm (Cal. Ct. App. - May 2, 2024)

What surprised me most about this opinion was the very last line.

The opinion itself is savage. Savage. It affirms the imposition of $10,000 in discovery sanctions against a law firm -- The Vanderpool Law Firm (in Seal Beach) -- notwithstanding the firm's argument that it can't be sanctioned because it substituted out of the case before the motion to compel was filed.

The opinion is undeniably correct on the merits: Lawyers and law firms can be sanctioned for, as here, the underlying (sanctionable) discovery responses that led to the motion to compel even if they substitute out before the resulting motion is actually filed. 

But the interesting part of the opinion is just how relentless it is in insulting the underlying lawyer, Douglas Vanderpool.

I would literally have to retype the whole thing to impart an accurate impression of just how pervasively the Court of Appeal publicly shames the underlying attorney, who also represents his firm on appeal. But here are some sample quotes, just to give a sense:

"Vanderpool indisputably advised defendants to stonewall Masimo’s discovery efforts not once but twice, the second time after promising to provide substantive answers. As the discovery referee held, and the trial court confirmed, Vanderpool’s precipitate exit from its representation of at least Bauche did not insulate it from these sanctions for its prior discovery misuse."

"At oral argument, Vanderpool proffered another argument, one not mentioned or even alluded to in either of its appellate briefs. This was that the breakdown in the attorney-client relationship – which ultimately caused the firm to substitute out – was responsible for the boilerplate supplemental responses and therefore supplied “substantial justification” for stonewalling discovery. We find it odd that such an important explanation for Vanderpool’s discovery misuse – almost the exclusive explanation at oral argument – should have been reserved for that occasion."

"The [discovery] referee also had a few words to say about Vanderpool’s including a letter from some members of Congress regarding Masimo’s CEO as part of its opposition to the request for sanctions against it, in an effort “inappropriately to prejudice discovery referee and the Court with irrelevant allegations of misconduct[.]” The words were “shameful” and “cannot be tolerated.”"

"In fact, the responses to the document production requests were so boilerplate that the individual responses began “Responding Party objects to this interrogatory . . . .” Only intermittently did these responses refer to a “request for production.”" 

"This court has in the past had occasion to deplore the lack of civility that has flourished in the legal profession in recent decades. . . . Evidently Vanderpool’s principal attorney, Douglas Vanderpool, did not get the memo. We have quoted above from the condescending email he sent to Masimo’s counsel, Robert Ellison, expressing the firm’s refusal to meet and confer. After being served with the moving papers for the motion to compel, Douglas Vanderpool began an email to Ellison with the subject line “You are joking right?” The body of the email continued in the same vein: “In 30 years of practice this may be the stupidest thing I’ve ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life. Otherwise we’re going to be requesting sanctions against your firm for even bothering us with this nonsense.”

"Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports."


Here's what really got me, though.

I'm going through the opinion, reading all these incredibly bench-slapping lines (of which there are plenty more), and I'm thinking to myself: "Who's writing this thing?" (Unlike in federal court, in the Court of Appeal, the author's always listed on the last line, and I never skip ahead. I like the suspense.)

I have my suspicions, of course. There are some justices who are occasionally/sometimes/often harsher than others, so I'm thinking it's probably one of them.

Then I get to the last line.

Justice Bedsworth.


He was most definitely not one of my initial suspects. Does he feel strongly about various things? Of course. But the type of harshness you see here is not his usual forte.

Four conduct has to really hack off the Court of Appeal to get an opinion like this one, and from a justice like this one, no less.

Hopefully people will learn the underlying lesson. Be civil. Don't write emails like the one described in the opinion.

Or really bad -- and/or embarrassing -- things may well happen to you. Like here.

People v. Flores (Cal. Supreme Ct. - May 2, 2024)

Justice Corrigan authors a powerful opinion that holds that it's not permissible for the police to conduct a Terry stop just because someone's in a high crime area and pretending to tie his shoe behind a car in order to avoid the police, and Justice Evan authors an equally powerful concurrence (joined by a majority of the Court) that highlights the racial implications of a rule that assumes that the "normal" response to a police encounter is to welcome and/or consent to it.

All of which are worthy of incredibly careful consideration.

My only thought upon reading both opinions is that, while the California Supreme Court is unanimous here, my very strong suspicion is that the United States Supreme Court would come out the other way. Likely 6-3.

Wednesday, May 01, 2024

Sacramento Utility Dist. v. Kwan (Cal. Ct. App. - April 30, 2024)

After reading the briefs, I too suspect -- as the trial court found -- that Mr. Kwan did in fact aid and abet the stealing of electricity for a marijuana grow house in Sacramento, notwithstanding the fact that he says that he knew nothing about it and that whomever signed up for utilities there must have stolen his identity.

But I couldn't help but notice that most of the evidence that Justice Robie cites for this proposition would apply to a fairly large swath of society, including but not limited to me.

Justice Robie says:

"Kwan asserted he did not open the account, was the victim of identity theft, and initially stated during pretrial discovery that he had no connection to Sacramento. 

The District produced evidence countering this defense: Kwan’s phone records showed he had called a Sacramento area 916 number numerous times starting in November 2011; Kwan purchased nearly $800 of equipment from a hydroponic store in March 2011 that could be used to grow cannabis; and Kwan received six cash payments totaling $2,500 from December 2011 to August 2012."

Okay, most of us probably haven't bought $800 worth of stuff from a hydroponic store lately. But I bet a fair number of us have called at least one number in the 916 area code sometime in the last year. I know I have. And six cash deposits that total $2500 over a nine-month period seems incredibly common as well, particularly for someone who (like Mr. Kwan) is unemployed and allegedly works odd jobs for people.

Mr. Kwan ultimately gets tagged for a utility bill that's over $27,000. Ouch. Trebled, so that's over $82,000 total. Triple ouch. Plus another $82,000 on top of that for the District's attorney's fees.

(Sextuble ouch?)

It brings to mind a phrase that people used to say when I was in college:

"Don't steal. Don't get caught stealing."