In re M.T. (Cal. Ct. App. - Oct. 30, 2024)

This is an eminently moderate and reasonable opinion.

M.T. transitioned to being a girl when she was a minor, and at 19, legally changed her name. Three years later, she was harassed and outed on social media by someone who had looked up her name change petition online, so the next year, she moved to seal her name change materials. 

The trial court refused to do so. The Court of Appeal reverses.

Justice Meehan's opinion doesn't establish a categorical rule that says that all name-and-gender petitions have to be sealed; rather, you gotta look at this stuff case-by-case. We generally make name change petitions public because we don't want people changing their names to defraud creditors, escape the police, etc.

But this girl isn't doing any of that. She transitioned as a minor. She changed her name at 19 for fully permissible reasons. There's no reason why the public needs access to what she was originally called (her "deadname") name, and permitting easy public access allows people to look up current names and link them up to old names to "out" folks as transgendered. So public interest in that, thank you very much, and big downsides, as the individualized harassment here reflects.

So, in my view, a very well-written and sensible opinion by Justice Meehan -- one that could have easily gone off the rails in either political direction, but doesn't.

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.)

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.)

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.

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.

CPC Patent Tech. v. Apple, Inc. (9th Cir. - Oct. 24, 2024)

You're not going to read this opinion unless you're a super nerd; or perhaps care deeply about appellate jurisdiction over nonfinal orders for federal discovery for use in a foreign proceeding pursuant to 28 U.S.C. § 1782. (The latter category probably consists of about a dozen people; the former is larger.)

That said, it's a nice little opinion by Judge Bress. Very well written and reasoned, IMHO.

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?

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.

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.

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?

In re Chreech (9th Cir. - Oct. 16, 2024)

Judge Bybee writes a very persuasive opinion that grants mandamus relief and requires Judge Brailsford to recuse herself from the underlying case.

As far as I can tell, the Ninth Circuit has never before granted mandamus relief in recusal settings like this one. But there's a first time for everything, and this one seems like an appropriate occasion for it. It's a death row habeas case, and the petitioner claims that the prosecutor's office, including the head of that office (Jan Bennetts), introduced fabricated or intentionally misleading evidence at the clemency hearing. 

But Judge Brailsford was a co-clerk with the lead prosecutor (Bennetts) for Judge Thomas Nelson back in 1993. Moreover, even a quarter century later, during Judge Brailsford's investiture to the Idaho Court of Appeals, Ms. Bennetts spoke of their continuing friendship fondly, saying that "Amanda and I met by circumstance, but we became friends by choice. Amanda is the kind of friend you feel incredibly fortunate to find. They’re few and far between." Judge Brailsford's attitude was reciprocal, thanking her “dear friend” Bennetts and describing the two of them as “kindred spirits.”

You can see why a reasonable person might indeed doubt Judge Brailsford's ability to impartially adjudicate the allegations against Ms. Bennetts in such a setting, no?

Judge Bybee also waxes poetic about the incredibly close nature of co-clerks -- and has ample reason to do so, since he's seen many come through during his own tenure, as well as his own experience clerking on the Fourth Circuit. To a degree, his description may be a bit idyllic; that said, I'm confident that he's accurately described many co-clerk relationships, as well as at least a portion of the experience:

"Our clerks represent the best and the brightest from American law schools. Although the selection process is highly competitive, once our clerks begin—typically for a one- or two-year period of service—they are no longer competitors but colleagues in service to the courts of the United States. Our clerks work long hours in monastic conditions, bound by duties of confidentiality and loyalty to the judge. Chambers are tight-knit environments that depend on constant collaboration between co-clerks. The friendships developed between co-clerks can be especially intimate and enduring, often lasting long beyond the clerkship itself."

Ah, those were the days.

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.

Howard Jarvis Taxpayers Ass'n v. Powell (Cal. Ct. App. - Oct. 11, 2024)

The trial court thought that the board members of the Coachella Valley Water District had brought an entirely frivolous anti-SLAPP motion, so awarded the Howard Jarvis Taxpayers Association over $180,000 in attorney's fees for the frivolous motion.

The Court of Appeal, by contrast, thought that the anti-SLAPP motion was not only frivolous, but meritorious, so reverses and grants the "frivolous" motion on appeal.

Interesting how different judges can reach such dramatically disparate rulings, eh?

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.

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.

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.

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)?

The Court of Appeal says: No. 

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.

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)

Maybe I should listen to more "true crime" podcasts, but I didn't know before reading this opinion that there was a serial killer in Northern California who would kill women and then -- chillingly -- report the location of their bodies to a "tip line" set up by the police in return for reward money.

Frankly, that doesn't seem like a good business model. But I guess it worked for a tiny period of time; before they caught him, anyway.

Regardless, I had never before thought about killers exploiting their own killing for reward money.

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.

People v. Harris (Cal. Ct. App. - Oct. 1, 2024)

No, the Court of Appeal did not just affirm the trial court's refusal to resentence Kamala Harris based upon her conviction for murder.

The petitioner here is Kwana Harris. Not Kamala.

Kwana was convicted in 2009 of first-degree murder for a 2004 killing in Los Angeles, though that conviction was reduced via habeas to second-degree murder in 2019. She petitioned to be resentenced yet again under Section 1170.95, but the trial court -- after initially saying it was going to grant that petition -- ultimately found that she was a direct aider and abettor of the victim's murder, so denied the petition.

So Kwana Harris will remain in prison.

Whereas Kamala Harris has a decent shot at shortly becoming the most powerful person in the world.

U.S. v. Patterson (9th Cir. - Oct. 1, 2024)

October begins with an interesting discussion between Judge Tashima, who authors the majority opinion, and Judge Christen, who writes a concurrence, about precisely what it takes for someone qualify for the "hate crime" enhancement in the sentencing guidelines.

The guidelines say you get an extra three-level enhancement if the sentencing court "determines beyond a reasonable doubt that the defendant intentionally selected any victim or any property as the object of the offense of conviction because of the actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation of any person." In other words -- and in its classic incarnation -- if you decide to assault someone who's gay because you hate homosexuals, your sentence may be slightly higher. (I understand that there are people who disagree with whether this should be the rule, but this case involves the interpretation of that rule, not its normative wisdom.)

The district court said that in order to be eligible for this enhancement, all that matters is that you chose the victim "because" he had the protected quality, not whether you had distaste for that group. Here, the defendant contacted his (gay) victims over Grindr; that way, they'd be less likely to go to the police after he robbed them (for fear of being outed). So according to the district court, that qualifies for a three-level enhancement; he selected his victims "because" of a protected characteristic (sexual orientation).

The Ninth Circuit unanimously disagrees with that, though there's a split as to precisely why. Judge Tashima says that a but/for "because" (as here) isn't good enough; that, instead, the enhancement requires proof of animus. His basic point (which is a good one): "Patterson used the dating platform Grindr to find people who would be willing to meet him alone so that he could rob them. That is, their membership in the protected group was a proxy for other information about them – their willingness to agree to meetings where he knew they would be alone. This is insufficient to impose the hate crime enhancement without finding beyond a reasonable doubt that Patterson was motivated by hatred or animus of the victims because of their membership in the protected group."

So for Judge Tashima, you've got to prove animus, so the Ninth Circuit remands on this issue, since the district court made no such finding.

Judge Christen concurs in the result, but articulates the relevant test in a slightly different way. She says: "By requiring a finding that the defendant selected the victim “because of” the victim’s actual or perceived membership in a protected class, the enhancement bakes in the requirement that the protected characteristic at issue—e.g., sexual orientation—was the defendant’s motivation for selecting the victim. In my view, nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement." So for her, you're not required to find animus; or, to put it differently, "animus" is found whenever a characteristic is your "motivation" for selecting a particular victim.

I wonder, though, if both groups of judges aren't using the word "animus" slightly differently than how it's typically employed.

I agree that most hate crimes are motivated by animus. Some others -- like, perhaps, the one here -- aren't motivated by animus, but rather by ancillary (correlated) characteristics. You might elect to prey on women, or certain minority groups, because they're physically smaller. Or less likely to contact the police. Or stereotypically less likely to resist. Tons of reasons. You don't "hate" that group. They just make easy (or at least "easier") pickings.

Now, maybe, for Judge Christen, that itself constitutes "animus". Though I could see you having no real "animus" at all. Maybe I love women, or believe that, on balance, Asians (or homosexuals, or whatever) are wonderful, and actually prefer their company to anyone else, and think they're better overall people and should rule the world. It's just that, for my particular present purpose -- robbery -- they're a better set of victims. Just like I rob empty houses; it's not that I hate empty houses, or have animus towards them, as compared to owner-occupied houses; it's just that they're easier to rob.

So if you think of "animus" as ill-will -- which is the classic definition -- I'm not really certain that what Judge Christen is getting at is "animus" at all. (Now, maybe we don't care about animus at all -- we just want to protect a certain group from differential victimization. That's fine. It's just that Judge Christen continues to use the word "animus" in her description of the underlying mental state, and that word is typically used to describe a particular mental state that doesn't always exist in her chosen definition.)

I'll go even further. It's true that many crimes are motivated by animus, but many crimes aren't, and it's at least conceivable that at least some crimes are motivated by the exact opposite. For example, imagine that I love Christians -- absolutely love them, and am one myself -- and desperately want them to go to heaven when they die. (Whereas I give not one whit about Muslims, atheists and the like.) But I also believe that a big impediment to going to heaven is having too much wealth, and that it's better to be a Christian that's impoverished, because that way they'll struggle and focus more on God and not be so concerned with material wealth and will therefore be more likely to spend eternity in Paradise. So to ensure that Christians -- whom I prefer -- go to heaven, I steal from them, exclusively. I select victims based entirely on their religion, so their religion is a but/for cause of their victimization.

I think that Judge Tashima would say that there's no animus in this scenario and no enhancement. Whereas Judge Christen would say that there was animus "baked in" because "the protected characteristic at issue [being Christian] was the defendant’s motivation for selecting the victim" and "nothing more is required to establish the requisite animus needed to impose the hate crime motivation enhancement."

That's fine. But loving someone and wanting them to go to heaven is hardly how we usually use the term "animus". It's kind of exactly the opposite, no?

So, yes, animus is often present, and there are lots of settings in which the competing definitions of that requirement advanced by Judges Tashima and Christen overlap.

But it seems like there are at least some settings in which they definitely don't. Including at least some in which I'd be hard-pressed to find "animus" and that we wouldn't typically define as a "hate crime".