LCPFV, Inc. v. Somatdary Inc. (Cal. Ct. App. - Nov. 11, 2024)

On occasion, I'll read an opinion by Justice Wiley that I feel is too harsh or curt (or both).

Not here.

A plumber allegedly didn't do a great job on work that cost $47,883.40, so the owner of the building had to hire someone else to fix it. The worker who subsequently fixed the problem charged the owner less than $43,883.40, but the owner nonetheless sued the original plumber for a fair piece of change. When the first plumber eventually defaulted, the owner submitted a default package asking for over $1 million, including over $300,000 in attorney's fees. The trial court said "No way" and awarded $120,319.22 total, and the owner appealed.

The Court of Appeal affirms. And isn't shy about explaining why.

Read the whole opinion -- it's 25 pages -- for a full understanding of why the trial court (as well as the Court of Appeal) thought that the owner was unnecessarily churning the case. Plus there's the whole "lack of candor" portion of the opinion. I'm fully on board for everything that Justice Wiley says on this score.

I nonetheless will mention that a small portion of the opinion seems erroneous to me.

The plaintiff here propounded a number of case-dispositive requests for admission, which the defendant didn't respond to (because no one represented him at that point). That's a time-worn strategy, and hardly unique to this particular case.

Justice Wiley takes umbrage at this practice, saying that it was unnecessary since the defendant had already essentially defaulted. I fully agree with that.

But he also attacks the practice writ large. He quotes the Rutter Group to say that "requests for admissions are useful 'only as to matters of lesser importance (for which they may not be necessary, since unimportant matters can usually be handled by stipulation with opposing counsel).'" And then goes on to say that, as a general matter, propounding RFAs on the ultimate issues in the case is "troubling," "not ‘in conformity with the spirit of the law,’" and does not "serve substantial justice.’”

I understand that there are occasional cases that so state, but that attitude seems flatly wrong to me. It's just fine, in my view, to propound case-dispositive RFAs, even at the very outset of the case. Mind you, if you do so, the RFAS may well not be successful, since the other side will almost surely deny them and the trial court will almost equally surely find "substantial justification" for such denials given the early stage of the litigation and hence deny cost of proof sanctions even if you establish the truth of the requests at trial. But if you want to give it a shot, I see nothing improper about the practice.

Moreover, I think the practice has affirmatively beneficial results as well. Sometimes, even early on in the litigation (and especially thereafter), there is in fact no substantial justification whatsoever to deny even case-dispositive RFAs. Say, for example, you rear-end someone on a bridge. Or drive drunk and smash into someone's house. That's pretty much certainly your fault. If you nonetheless deny liability in your answer, well, a case-dispositive RFA on an ultimate fact can -- and should -- be coming your way. And if you have the gonadular fortitude to deny the thing, well, if I'm the judge, I'm imposing cost of proof sanctions every day of the week if liability is ultimately found. Rightly so.

RFAs are designed to narrow disputes, and one (critical) way they do so is to impose a burden on those litigants who might wrongfully create disputes where none actually exist. That's equally true for both "important" (e.g., case dispositive) portions of the case, as well as less portions. RFAs are valuable in both settings.

So I'm 100% on board for Justice Wiley's language as applied here. But I don't think that language applies more broadly, and am worried that a published opinion contains language that litigants might well use to defeat the value (and use) of case-dispositive RFAs.

The Comedy Store v. Moss Adams LP (Cal. Ct. App. - Nov. 14, 2024)

You've got to pull quite a few doctrinal moves to make this opinion work. But Justice Mori pulls them all. The Court of Appeal holds that since the defendant's forum selection clause (which required all lawsuits to be filed in Washington state) also contained a waiver of the right to a jury trial, which is enforceable in Washington but not in California, it's not entitled to a dismissal of the California state court lawsuit on forum non conveniens grounds.

Even if the defendant stipulates to waive the impermissible (in California) jury trial waiver provision.

I thought that the equity of this result was best expressed in one particular paragraph near the very end of Justice Mori's opinion, in which she says -- quite correctly, in my view:

"Predispute jury waivers have been unenforceable in California for nearly 20 years. (See Grafton, supra, 36 Cal.4th at p. 956.) According to a declaration from Moss Adams’s general counsel, engagement agreements similar to the one signed by the Store have been in use throughout this time. If we were to hold that Moss Adams’s unilateral stipulation satisfied its burden of proof under Verdugo, it would have little incentive to take the jury waiver out of the agreements it provides to California clients. It can simply wait and see if a client who signs the agreement sues it in California and argues the forum selection clause impinges on the client’s right to a jury trial. Then Moss Adams can provide a non-enforcement stipulation. However, if the client does not recognize its right to a jury is unwaivable, it may end up abiding by the terms of the agreement and litigating the case in Washington without a jury."

Yep. Spot on right.

In re Baby Girl R. (Cal. Ct. App. - Nov. 12, 2024)

Let's begin the week with the only published appellate opinion in the last four days. Albeit a somewhat depressing one. The facts:

"S.R. and Baby Girl R. were transported by ambulance to a hospital shortly after S.R. gave birth in a homeless encampment. The identity of Baby Girl R.’s father is unknown. S.R. informed hospital staff she was unaware of her pregnancy and was using methamphetamines daily. Baby Girl R. tested positive for the drug and exhibited withdrawal symptoms. The hospital placed S.R. on an involuntary psychiatric hold as she displayed paranoia, delusions, and aggression. When the hospital discharged S.R. a few days later, she returned to the homeless encampment and left Baby Girl R. at the hospital. . . . Despite diligent search efforts, the Department was unable to locate S.R. after she left the hospital."

Man.

It's been over a year now, by the way, and they still haven't found the mother.

There's at least some potential good news, though. They originally placed Baby Girl R. in foster care. But while the present appeal was pending, the trial court apparently placed her with her maternal grandparents.

So at least there's some hope there.

Grand Canyon University v. Bolton (9th Cir. - Nov. 8, 2024)

I gotta be honest that I liked the district court's decision better than the Ninth Circuit's in this one.

It's a summary judgment ruling, so maybe reasonable minds could perhaps differ. But it's a challenge to an administrative ruling, so the agency's decision needs to be "arbitrary and capricious" to be overturned, and that's a super difficult standard.

As I see it, there's pretty ample evidence that Grand Canyon University's purported "transition" from a for-profit corporation to an alleged nonprofit is basically a scam. (Which, in very loose -- and admittedly opinionated -- language on my part, is what the Department of Education essentially concluded.) You can read the whole opinion for yourself for the details. But they basically fold the existing for-profit entity into an existing nonprofit but then "capture" the nonprofit, plus get basically all the tuition revenue flowing to the purported nonprofit.

(Here are some of the mind-numbing details, according to the opinion's recitation of the DOE's views:

"The Department concluded that the “primary purpose” of the GCE-Gazelle transaction “was to drive shareholder value for GCE.” The Department based this conclusion on the purportedly disproportionate 60% share of GCU’s revenues to which GCE was entitled under the transaction, which included revenue from operations to which GCE was not obligated to “provide[]” any “services” under the MSA. The Department also found that, when taking into account payments on the loan under the Credit Agreement, GCE would be “receiving approximately 95%” of the university’s revenues. “[E]qually concerning” to the Department was its view that GCU was a “captive client” under the transaction, given the initial seven-year term of the MSA and the substantial financial payment that the university would have to make in order to terminate the agreement. The Department concluded that “GCU d[id] not meet the operational test’s requirement that both the primary activities of the organization and its stream of revenue benefit the nonprofit itself.” According to the Department, “[t]his violates the most basic tenet of nonprofit status—that the nonprofit be primarily operated for a tax-exempt purpose and not substantially for the benefit of any other person or entity.” The Department also stated, as “additional support” for its conclusion that GCU was not entitled to nonprofit status, that Gazelle was “not the entity actually operating” the university under the Department’s regulations. See 34 C.F.R. § 600.2 (stating that a HEA nonprofit must be “operated by one or more nonprofit corporations or associations”); 20 U.S.C. § 1003(13) (same). The Department reasoned that the board “responsible for managing and overseeing the University” consisted predominantly of GCE employees."

Pretty damning, in my view. As well as a sufficient basis for calling GCU not a "true" nonprofit -- with all of the various financial advantages and benefits from the Department of Education that arise alongside such a status.

I understand Judge Collins' hypertechnical (IMHO) argument to the contrary. I'm just not confident that the DOE's opposite conclusion is genuinely arbitrary or capricious, or that (as the panel found) it really applied an inappropriate legal standard here.

At a minimum, it seems to me like they reached a result with which I'm entirely comfortable.

But if reasonable minds could perhaps differ, so be it.

In re Marriage of Diamond (Cal. Ct. App. - Nov. 5, 2024)

I thought it was very nice of Justice Feuer to spend 32 pages carefully analyzing this appeal, which affirmed the trial court's rejection of a self-represented litigant's attempt to vacate a marital dissolution judgment in which she failed to show up for trial (or respond to discovery, or basically do anything). The opinion exhaustively discusses the relevant evidence, is very careful about the underlying standards, and takes the issues seriously. All this despite the fact that, in my view, the proper outcome is crystal clear, particularly since the trial judge found the appellant not credible (for more than sufficient reasons).

I certainly feel bad for the appellant, and am confident that Justice Feuer does too. She was clearly depressed during a period of time, and did not handle her divorce (or mental health during that period) well. But she had plenty of notice and plenty of opportunities to show up, and failed to do so, even as she was able to successfully participate in a variety of events. So, yes, I feel bad, but the proper result is fairly clear. (I'm also quite confident that the trial court rightly awarded custody of the children to the father under the circumstances.)

One thing that you learn about the appellant midway through the opinion is that she's an attorney, which is ironic given her failure to appear in the divorce action. If there's anything you'd think an attorney would know to do, it's to keep in touch with her attorney and/or show up at trial.

But I get it. She was depressed. She simply didn't want to deal. Not a sufficient excuse under the particular circumstances here (and given the evidence presented below), but understandable.

Parenthetically, I also thought it was interesting that when I looked up the appellant's name on the State Bar's website. All three of the attorneys with that same name ("Susan Diamond") are currently ineligible to practice law. The one at issue here (in LA) is suspended for failure to pay child support, failure to pay bar fees, and failure to satisfy the MCLE; the second (a fellow HLS grad!) just recently went inactive last year after practicing law for 40 years; and the third (in Sacramento) was suspended just four months ago for client trust account noncompliance (oops!).

Three for three.

Anyway, a very nice opinion by Justice Feuer, who clearly gives this appeal the careful attention it deserves (and perhaps even more).

Mountain View P.D. v. Krepchin (Cal. Ct. App. - Nov. 4, 2024)

I seriously hope that Mr. Krepchin gets some assistance with his mental heath. But, in the meantime, I completely agree with the Court of Appeal that he shouldn't possess any guns.

Good luck, Mr. Krepchin. Things can get better.

Martinez v. Superior Court (Cal. Ct. App. - Nov. 4, 2024)

I understand where the Court of Appeal is coming from here. The Legislature may well allow you to retrospectively withdraw your guilty plea -- for example, when you weren't advised at the time of the immigration consequences of that plea. But that doesn't mean that the state is barred from refiling those charges after the resulting dismissal. The statute doesn't expressly say that refiling is barred, and in some circumstances, I could totally understand why refiling would be permissible.

So the basic holding is something that doesn't seem to me out of this world. Under those circumstances, I can see why the Double Jeopardy clause doesn't necessarily bar refiling, the statute doesn't, etc.

But the situation here involves someone who's served his original sentence -- namely, probation. When the Legislature says that, after you've successfully served such a sentence, you can withdraw your plea and get the charges dismissed, it seems a bit bizarre to say that the state can then refile those same charges. And, to make matters worse, to say that the state can now refile those charges as a felony even though the California Supreme Court has said that "when a court has granted relief under section 17, subdivision (b), the offense is 'deemed a ‘misdemeanor for all purposes.’"

Doesn't it seem crazy to allow the state to refile the charges after you've served your entire sentence and to potentially now seek to incarcerate you for a longer period as a result of your successful petition under a statute that the Legislature passed to ameliorate the consequences of your prior conviction?

The Court of Appeal responds to that basic point by saying that "at this stage of the proceedings, whether the state may seek additional punishment is not before us." True enough, I guess. But that's the mountain that astrides the molehill. If the state isn't allowed to seek additional penalties beyond the ones that you've already served, then what's the point of allowing refiling? And if the point of the statute was to ensure that there aren't additional penalties, then it seems to me that allowing refiling would impermissibly conflict with the core purpose of the statute, and be improper even if the statute didn't expressly say whether such refiling was permissible or not. (That matters; just like preemption can be found even if its implied rather than express, so too can a statute sometimes require something even though the Legislature didn't pass a statute that contains those exact words.)

So it seems to me important whether additional punishment is allowed, even though the Court of Appeal doesn't feel like it needs to reach that issue at this point.

It seems to me like it nonetheless matters. A ton.

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".

TRC Operating Co. v. Chevron USA (Cal. Ct. App. - Sept. 27, 2024)

I bet you get paid a ton of money for convincing the Court of Appeal to reinstate a $120 million jury verdict against Chevron notwithstanding the trial court's grant of a new trial.

But you probably also get paid a ton of money for convincing the California Supreme Court to grant review and decide whether the Court of Appeal was correct.

Probably even more if you eventually win in the California Supreme Court. TBD.

Cady v. Gamick (Cal. Ct. App. - Sept. 26, 2024)

I get it. You've got to say that a statute is "ambiguous" before you can do what makes sense. Because everyone's persuaded by the contemporary mantra that if the text of a law is clear, you've got to follow it. So Justice Weingart says that the meaning of this statute is unclear, and hence does what he thinks makes the most sense in this context.

But, with all due respect, the words of the statute seem pretty darn clear to me. Even though I'm on board with what Justice Weingart ends up doing.

There's a really rich guy -- someone who makes $2 to $3 million a year -- who's got a very disabled 34-year old son (with autism) who's incapable of supporting himself. The son gets around $12,000 every year in disability benefits, but that's hardly enough to live on -- and, in any event, he's not capable of living on his own. So he lives with his mother.

Mom and Dad are divorced. Normally, once a child reaches a certain age, he's on his own. But Section 3910 of the Family Code (understandably) makes the parents of an adult child “who is incapacitated from earning a living and without sufficient means” financially responsible for maintaining that child “to the extent of their abilit[ies].”

So, normally, Dad would fairly clearly be required to support the son (at least in part), because he clearly has the "ability" to do so given his wealth.

But there's this other statute, Welfare and Institutions Code section 12350. A statute that contains an express exception to Section 3910 of the Family Code. Recall that the son gets certain disability benefits from the state. Here's what Section 12350 says:

“No relative shall be held legally liable to support or to contribute to the support of any applicant for or recipient of [such] aid.” 

It repeats this same exception later in that same statute:

“Notwithstanding [s]ection[ ] 3910 . . . of the Family Code, . . . no demand shall be made upon any relative to support or contribute toward the support of any applicant for or recipient of [such] aid.”

There's zero doubt that the son is the recipient of such aid. Similarly, there's zero doubt that Dad is a "relative" and that there's a demand here that Dad contribute to the support of the son.

So, under the clear and express words of the statute, Section 12350 is a defense.

The Court of Appeal nonetheless holds that it's not. The purpose of the statute, it says, is to make sure that the government doesn't provide aid to someone disabled and then go after the relative to reimburse it for the resulting aid.

And I completely agree. That's the point of the thing.

But that's not what it says. It says that NO ONE can demand that the relative "contribute to the support" of such a person. Including but not limited a demand under Section 3910 of the Family Code, which is undeniably the basis of the request here.

So under the clear and -- in my mind -- 100% nonambiguous command of the statute, Dad can't be ordered to contribute to the support of the child if he doesn't want to do so.

(Now, of course, I think he should morally be willing to do so, but that's a different issue. Dad likely is willing to contribute something, and has made various settlement offers in the litigation. The question is whether Dad can be compelled by the state to contribute amounts that he's unwilling to pay.)

The text of the statute is not ambiguous. The text clearly commands a single result: Dad wins. So if it's required that we find the statute textually ambiguous to hold otherwise, well, sorry, that's just not the case. Even if we might want it to be.

To reiterate, I'm persuaded by Justice Weingart that the purpose of the statute was to stop only the government from demanding reimbursement. But that's not what it says. The Court of Appeal's efforts to find textual language that makes the otherwise-clear statutory provisions "uncertain" are, in my mind, totally unpersuasive. The actual WORDS of the statute are clear.

Now, to me, that's not the end of the thing. I'm fine, in particular cases, to conclude that the Legislature used loose language -- by "loose," I mean inaccurate, not unclear -- and interpret those provisions in line with what I think the Legislature intended.

But that's Old School. It's not what we almost uniformly purport to do in the modern era. Thank you, Justice Scalia et al.

Even though I think we might still, in fact, do so. Including here. Because saying that there's an ambiguity allows us to do the right thing. The thing that both was intended and that's better for the universe. But since we're required to say that the statute is ambiguous before we do that; well, okay, so we'll say the statute is ambiguous.

Even when it's not.

Stein v. Kaiser Foundation Health (9th Cir. - Sept. 24, 2024)

It takes Judge Forrest only four pages to write an en banc opinion that explains that prior circuit precedent that held that the "first-to-file" rule in qui tam cases was "jurisdictional" isn't actually jurisdictional in light of intervening Supreme Court precedent. Other circuits (a minority) disagree, but there's a circuit split, and she concisely explains why the en banc court decides to go with the majority view on this issue.

By contrast, Judge Forrest also writes a concurring opinion, joined by only one other judge on the en banc court (Judge Bumatay), that takes up over triple the space -- 14 pages -- in an expansive exegesis about what does and does not count as dicta and why circuit dicta (even from an en banc court) shouldn't be binding, even if "incidental" (but not technically "necessary") to the result.

There's a lot there. Though perhaps somewhat ironic that this discourse about why dicta shouldn't be followed and is akin to an advisory opinion is contained in a nonbinding concurrence that's unnecessary and doesn't change the result.

But food for thought.

People v. Valle (Cal. Ct. App. - Sept. 18, 2024)

Police officers make an obviously pretextual stop -- the defendant's a known gang member, and he doesn't have front plates on his vehicle -- and wait to pull him over in order to give the canine officer (who they called before the stop) time to arrive. The canine alters on the driver's side door, and after searching, the police then find a gun in the center console, so arrest the defendant for being a felon in possession.

The trial court suppresses the evidence because the police waited to pull the guy over, but the Court of Appeal reverses. You're allowed to have pretextual searches, the Court of Appeal says, and the relevant clock only starts ticking for an illegal "prolonged detention" once the guy's actually pulled over, not at the point you "decide" you're going to pull him over (but wait a bit so the dog can start making its way over).

All that makes doctrinal sense, at least according to existing precedent. So no qualms there (again, at least under existing law).

But I'll add one additional point -- not about doctrine, but about the real world (and, parenthetically, how it relates to doctrine).

The Supreme Court doesn't allow the police to "prolong" a traffic stop for an additional period of time to get a canine, interrogate the driver about unrelated (potential) criminality, etc. So you can only detain the driver for the "normal" period of time it takes to write a ticket.

One way around that is the way the police employed here -- just wait to stop you until the dog's nearby. But you can't complain, because your "stop" was just the normal length.

But the other way around it is to make the "normal" period of time it takes to write a ticket as long as possible. You've presumably seen a traffic ticket -- perhaps even gotten one (or several) yourself. They aren't even a page long. It's notecard-sized or so. With little boxes to check etc. Sure, you might have to run a records check first, but how long do you think it takes to fill out those little boxes?

Maybe -- MAYBE -- two minutes. Three at ABSOLUTE most. Probably a fair piece less if you're an actual police officer who's written literally thousands of them in your lifetime.

But if you're called to the stand to testify as to how long it "normally" you to write a ticket, what do you think you say. Remembering, of course, that that's the standard for whether or not you've engaged in unconstitutional "prolonged detention" such that the stop is impermissible and your arrest and conviction gets thrown out.

Here's what you say:

"Writing a citation can take him anywhere from 5 to 10 minutes."

Since it "normally" takes the officer "from 5 to 10 minutes" to write the citation, there was no illegal "prolonged detention" because the canine dog here arrived three minutes after the stop and alerted to "drugs" in the vehicle exactly 10 minutes after the stop -- so purportedly the canine search in no way "prolonged the detention" since it was going to take the officer 10 minutes to fill out the citation in any event (even without the dog).

I'm sure that's what the officer testified to, and, yep, the trial court (and Court of Appeal) relies upon that testimony. What certainly did not happen here is that the officer took his own sweet time to fill out the citation while waiting for the dog to arrive and then the dog alerts on the "drugs" at just the exact moment that it "normally' takes the officer to fill out the citation form.

Nope. Definitely not.

(I'm putting the word "drugs" in quotes, by the way, because there's literally no mention anywhere in the opinion of there ACTUALLY being drugs in the vehicle. The only conviction is for the firearm in the center console. So unless that's what the dog was smelling -- no small feat, I would imagine -- the stop was justified because (1) it took the "normal" period of time, (2) the dog "actually" smelled drugs and alerted accordingly, but (3) oops, no drugs, but yay, firearm, hence the arrest of a known member of a gang via a pretextual stop.)

The point is simply this: There are laws, and then there are ways around those laws. Criminals aren't the only ones who have figured that out.

C.C. v. D.V. (Cal. Ct. App. - Sept. 16, 2024)

From this domestic violence TRO opinion by Justice Rodrriguez:

”In an October 2021 e-mail — titled “Shitty human” — [D.V.] wrote, “You are not a good human being in any way shape or form. Your characteristics are all negative and the way you teach your kids is disgusting. Great tits though.”

I'm not sure why D.V. felt the need to add that last line. It's not like the recipient would read the rest of it and then say "Oh, well, at least it ended on a good note; everything's fine, then."

Lexington Ins. Co. v. Smith (9th Cir. - Sept. 16, 2024)

My thought is that the various Ninth Circuit judges here are each trying to make a point.

Judge Bumatay, joined by five other judges, would grant the petition for rehearing en banc, and explain at length (35+ single-spaced pages) why they think the panel got the decision wrong and (perhaps) why the Supreme Court should take the case up and reverse. This isn't unusual, but it's an increasing theme these days.

There's also a concurring opinion that agrees with the panel and with the denial of en banc review. That's not all that surprising either; you see those on occasion as well.

But this one's a bit unusual, for two reasons.

First, the concurrence is authored by all three of the members of the original panel. They, of course, agree with what they previously decided. But usually it's just one of them listed as the author. This time it's all three, jointly. Sort of an exclamation point.

Second, as is typical, some other Ninth Circuit judges join the concurrence as well. Sometimes you see two, or in high profile cases, even six or so. This is not surprising. After all, a majority of the judges, by definition, didn't want the case taken en banc. So sometimes the individual judges join the opinion that explains why -- but usually, most of them don't, thinking that it's unnecessary.

How many judges join the opinion here that concurs in the denial of rehearing en banc?

Sixteen.

That's a huge number. More -- much more -- than you typically see.

And it's not even a super high profile case. It's about tribal jurisdiction in an insurance case. An issue that's hardly going to make the front page of your local newspaper or become an issue in an upcoming election.

It's not just that, though. Typically, the judges that join the opinion concurring in the denial of rehearing are those active judges who voted against rehearing en banc. This time, though, the concurrence includes multiple senior judges as well -- including judges who didn't even have a vote in the en banc call.

Unusual, to say the least.

I think the liberal wing of the Ninth Circuit is trying to send a message here; namely, that this wing isn't going to sit back like usual when particular judges on the conservative side pen lengthy dissents from the denial of rehearing en banc. Instead, on occasion, at least, they're going to join the fight and show the flag. If only by identifying the number of votes on the other side -- particularly when that number is substantially larger than the number of votes recorded for the competing position.

I also sense a little bit of frustration here. Recorded in (somewhat) real time.

City of Gridley v. Superior Court (Cal. Ct. App. - Sept. 11, 2024)

I quite literally thought I was misreading this opinion -- or that it accidentally used the wrong word -- when I first read it.

Nope. That's actually what the lawsuit's about.

Here's how the opinion begins:

"The City of Gridley operates an electric utility that provides electricity to local residents. In this case, real parties in interest (plaintiffs) challenge the city council’s approval of reduced electric rates for residential users in September 2020. Plaintiffs believe these rates—which were in effect for about three years—exacted a tax from residential users . . . ."

Wait. Plaintiffs allege that the reduction of electricity rates constitutes the imposition of a tax? Surely the opinion means to say that the City increased electricity rates, and that that's a tax.

No. Plaintiffs are indeed challenging the City's decision to decrease electricity rates.

The trial court refused to grant summary judgment to the City. The Court of Appeal heard the City's writ and reverses.

Reducing electricity rates is not imposing a tax. Even if you don't think the reduction goes far enough.

Sounds right to me.

McCurry v. Singh (Cal. Ct. App. - Sept. 10, 2024)

I'm in the legal field, not the medical sphere, so I don't really know how much it matters which hospital you are taken to (presumably in an ambulance) after a medical emergency; say, a heart attack. I assume that emergency rooms and trauma centers are fairly competent, at least in a big city (say, Sacramento). So it wouldn't seem to me like it would matter too much. At the same time, I understand that some hospitals may well be a little better than others, so if I had my druthers, I'd presumably rather go to them.

That said, after reading this opinion, I have -- accurately or not -- a keen sense that I'd rather not go to Methodist Hospital in Sacramento if I'm ever in the area and in the midst of a cardiac emergency. Here's a brief recitation of facts -- which are even labelled "undisputed facts," I might add, so they're presumably at least somewhat accurate -- from the opinion:

"On March 9, 2019, at 7:28 a.m., decedent was brought by ambulance to the emergency department at Methodist Hospital. She had a history of chronic obstructive pulmonary disease, and she presented with shortness of breath. A chest x-ray and a CT scan, however, indicated decedent had an aortic dissection. She quickly decompressed and was intubated.

Dr. Michael Brandon, the treating emergency physician, worked to have decedent transferred out as quickly as possible. Two cardiovascular surgeons he consulted with believed the dissection was not the most pressing issue, so Dr. Brandon focused on the fact that, given changes in decedent’s electrocardiogram (EKG) and other symptoms, decedent was most likely having a heart attack (myocardial infarction). He believed decedent needed a cardiac catheterization, a procedure that Methodist Hospital did not have the capability to perform.

Dr. Brandon spoke with defendant, Dr. Singh, an on-call interventional cardiologist at Mercy General Hospital. Dr. Singh initially agreed that decedent needed acute catheterization, but upon learning of decedent’s elevated creatinine and other conditions, he concluded decedent would not be a candidate for the procedure. He offered to consult on decedent’s case if she were transferred to Mercy General. But before decedent could be transferred and Dr. Singh could consult on the case, an intensivist (an ICU doctor) had to accept decedent’s transfer. Dr. Singh never agreed to decedent’s transfer.

Dr. Brandon spoke with Dr. Jamal Sadik, a Mercy General intensivist. Dr. Sadik initially agreed to accept decedent’s transfer provided interventional cardiology was involved. But he changed his mind after learning that Dr. Singh did not plan on performing a catheterization on decedent. Dr. Sadik could not accept the transfer if, as a result of Dr. Singh’s decision, decedent would not receive any interventions at Mercy General that Methodist Hospital could not provide.

Dr. Brandon submitted transfer requests to Sutter, UC Davis, and Kaiser, but each facility declined to accept the transfer. Dr. Brandon then consulted with Methodist Hospital’s chief medical officer and, ultimately, with Mercy General’s chief medical officer. At around 6:15 p.m. that evening, Dr. Brandon learned that Dr. Sadik had agreed to the transfer and to admit decedent to Mercy General. Unfortunately, decedent died while awaiting transfer."

So if I read all this correctly, the patient here arrived at Methodist Hospital during the early morning hours (7:28 a.m.) during a cardiac emergency and, in response, the medical staff there futzed around and tried to get her transferred to a hospital in which she could actually be appropriately treated for approximately the entire day, ending only when, that evening (sometime around 6:15 p.m.), she died awaiting care.

Not exactly a great look for Methodist Hospital, and one that might well get me to tell the driver of any ambulance that picked me up: "Yeah, maybe take me someplace else first, please."

P.S. - The opinion was originally unpublished. It gets published today.

Sunflower Alliance v. California Department of Conservation (Cal. Ct. App. - Sept. 6, 2024)

When you pump oil out from the ground (at least out here in California), you get a lot of water alongside the oil. You then have to do something with the water -- which is oily water, so neither drinkable nor of any real use. So oil companies generally just pump it back into the ground, though federal law says you can only pump it back in if the aquifer you're pumping it back into isn't drinkable anyway. (Which, I suspect, is generally the case, since the underground aquifer is probably pretty oily anyway, since you're getting oil from there. But maybe there are circumstances in which the water at one level is fine but at another level -- the level you're pumping the oil from -- it's not.)

The Reabold oil company pumps a lot of oil out of the Brentwood Oil Field, and has done so for over 60 years. Lots of oil, lots of water. There's one particular oil well out there that they're not using any more, since it's over an area where they've already pumped out all the oil that's economically feasible to remove.  So they plugged that well, but now they want to fix the thing to inject into the ground all the dirty water that comes out of all the other surrounding (still productive) oil wells. That'll stop them from having to truck the dirty water to the existing place where they dump all that dirty water back into the ground.

The question at issue is whether Reabold needs to get a CEQA permit to do so. The statute says that you don't have to get a permit for something that involves only a "negligible or no expansion" of the use of an existing facility; here, the oil well.

The trial court says that this exemption doesn't apply, since Reabold is turning an existing well that's currently doing . . . nothing . . . into a well that's proposed to be doing something (e.g., dumping dirty water into an aquifer). The Court of Appeal reverses, holding that the exception applies.

I totally understand why it probably makes a ton of sense to dump the dirty water back into an already-dirty aquifer nearby, instead of trucking it -- with associated pollution etc. -- to a different already-dirty aquifer somewhere else. But I'm not entirely sure as to why California can't (or doesn't) allegedly require a permit to make sure that dumping the already-dirty water back into an (allegedly) already-dirty aquifer isn't actually dumping water into an otherwise clean (or useful) aquifer, or -- textually -- why turning nothing into something allegedly involves "negligible or no expansion" of that facility.

Seems to me it's a big deal to make sure that our drinking water is, in fact, clean. (Or already so dirty that it doesn't matter.)

It's maybe also a testament to modern society -- or maybe just longstanding geology -- that we already have underground water supplies that are so completely dirty and disgusting that we feel totally confident making them even more polluted.

U.S. v. Perez-Garcia (9th Cir. - Sept. 4, 2024)

Seven judges on the Ninth Circuit join this concurrence from the denial of rehearing en banc, which likely reflects a little bit of historical (and continuing) annoyance at Judge VanDyke. Here's a snippet:

"In United States v. Perez-Garcia, 96 F.4th 1166 (9th Cir. 2024), we unanimously held that the Government could temporarily disarm two criminal defendants—Jesus Perez-Garcia and John Fencl—pending their felony trials consistent with the Bail Reform Act of 1984 and the Second Amendment. Perez-Garcia stood accused of importing eleven kilograms of methamphetamine and half a kilogram of fentanyl through the southern border. Id. at 1171. Fencl faced up to seventy years in prison for felony unlawful possession of three unlicensed short-barreled rifles and four unlicensed silencers. Id. 

Because neither Fencl nor Perez-Garcia remains subject to any pretrial release conditions, all agree that “there is now no live controversy before our court regarding either the merits of the underlying case or the propriety of the [firearms condition].” Washington v. Trump, 858 F.3d 1168, 1169 (9th Cir. 2017) (Berzon, J., concurring in the denial of reconsideration en banc). And “[i]n our system of government, courts have ‘no business’ deciding legal disputes or expounding on law in the absence of such a case or controversy.” Already, LLC v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006)). Nevertheless, Fencl and Perez-Garcia filed a petition for rehearing en banc seeking the concededly “unusual remedy” of equitable vacatur. See Dkt. 31, at 3. Today, our court correctly denied the petition.

A single judge of our court dissents from the order denying the petition for rehearing en banc. I join my colleagues who have voiced concern about these so-called “dissentals,” which often present a “distorted presentation of the issues in the case, creating the impression of rampant error in the original panel opinion although a majority— often a decisive majority—of the active members of the court . . . perceived no error.” Defs. of Wildlife Ctr. for Biological Diversity v. EPA, 450 F.3d 394, 402 (9th Cir. 2006) (Berzon, J., concurring in denial of rehearing en banc); see also Marsha S. Berzon, Dissent, "Dissentals," and Decision Making, 100 Cal. L. Rev. 1479, 1491 (2012).

The dissent in this case, though, is particularly curious. In a case where—everyone agrees—we lack jurisdiction to rehear the merits of the appeals, one judge has taken it upon himself to write a 61-page advisory opinion. Only about 5 of those 61 pages purport to address the relevant question at hand—what exceptional circumstance, if any, renders en banc review appropriate? The rest details Judge VanDyke’s views of the Second Amendment and his disagreements with the three-judge panel decision. As we have long recognized, critiques of this nature are irrelevant because “[w]e do not take cases en banc merely because of disagreement with a panel’s decision, or rather a piece of a decision.” Hart v. Massanari, 266 F.3d 1155, 1172 n.29 (9th Cir. 2001) (quoting E.E.O.C. v. Ind. Bell Tel. Co., 256 F.3d 516, 529 (7th Cir. 2001) (en banc) (Posner, J., concurring)).

I concur in the denial of rehearing en banc, and I write separately to make two brief points. First, this appeal is clearly unworthy of en banc review. Second, the Supreme Court’s recent decision in United States v. Rahimi, 144 S. Ct. 1889 (2024), vindicates the analysis in Perez-Garcia."

Everyone's free to write pretty much whatever they want, of course. That's the beauty of (amongst other things) the First Amendment.

But maybe there's a time and place for everything. Judge VanDyke thinks that the appropriate place is in a dissent from the denial from rehearing en banc. Judge Sanchez (the author of the concurrence) is of a contrary view.

For his part, Judge VanDyke's fairly annoyed at his colleagues as well. Here's a snippet of what he has to say on that front:

"For a majority of the judges on the Ninth Circuit, “any loss in a Second Amendment challenge at the Supreme Court is celebrated as a tool to further our artificial cabining of Bruen.” Duarte v. United States, 108 F.4th 786, 788 (9th Cir. 2024) (VanDyke, J., dissenting from the grant of rehearing en banc). Now, barely weeks after I levied this pointed charge in my Duarte disgrantle, our circuit seems determined to prove I’m right. The court not only declines to vacate a lengthy, deeply flawed, and wholly unnecessary Second Amendment opinion issued long after the defendants’ constitutional challenges became moot. It also piles on even more advisory commentary in a concurral, this time about United States v. Rahimi, 144 S. Ct. 1889 (2024)— a decision released months after the panel issued its opinion—and what Rahimi means for the analogical approach required by Bruen moving forward.

The observation I have made repeatedly in cases like this keeps being validated: our circuit is “more interested in sidestepping than following the [Supreme] Court’s Second Amendment precedent” by “latch[ing] onto phrases” and “conveniently overlooking such bothersome details like the government’s burden of supplying relevantly similar historical analogues.” Duarte, 108 F.4th at 788 (VanDyke, J., dissenting). Add this case to the top of the list. This latest effort stems from a particularly enticing opportunity for Second Amendment shenanigans, as the panel first rushed to issue a terse, unreasoned order affirming the district court. That order deliberately moot-proofed the panel’s ability to issue what was effectively, if not technically, an advisory opinion long after subsequent events overtook the defendants’ claims. More than a year later, the panel then made the most of the opportunity it had generated for itself, announcing as much new law as possible in a moot case where it was wholly unnecessary to do so, and then using mootness as a shield to argue against en banc review. Judge Reinhardt would be proud. . . .

 I must say I respect the feisty energy emanating from my concurring colleagues’ attempted pushback. But there is that thing about living in glass houses and throwing rocks. Consider what the panel did here: (1) it took the highly unusual step of quickly issuing a summary decision in a case that was likely to become moot, which served no discernable purpose except to ensure the panel could still issue its opinion long after doing so became unnecessary; (2) it later issued that lengthy and needless opinion notwithstanding the fact that everyone—including the panel—agreed the case was moot; (3) it unnecessarily provided redundant alternative rationales in its opinion deciding important Second Amendment issues in this circuit that could have far-reaching effects well beyond just this moot case; and (4) it deliberately reached outside the history and resources provided by the government in this case in an obvious attempt to help the government meet its burden rather than hold the government to it. That many off-panel members of the court now gratuitously rush to signal their agreement with the panel’s gratuitous legal reasoning in a concurral strangely criticizing my disagreement as gratuitous really deepens the irony. Projection, anyone?"

That's a pretty bitter -- and personal -- attack. One that includes throwing in a seemingly gratuitous slam on a long-dead colleague (Judge Reinhardt) to boot. (Conflict disclosure: I clerked for Judge Reinhardt. It's not wrong to say that he felt strongly about particular things. Though in my experience, he worked as hard to get his colleagues to not say unnecessary things that he thought would be counterproductive -- even things he agreed with -- as he did to say things that he thought were right. Regardless, it seems kind of unnecessary to zing the guy. My usual rule is that comparing living people to dead people -- be they Adolph Hitler, Justice Taney, Joe McCarthy, etc. -- rarely advances the ball.)

In any event, some fairly vitriolic stuff out of the Ninth Circuit today. 

X Corp. v. Bonta (9th Cir. - Sept. 4, 2024)

Given that it's an entirely for-profit company, I think you'd be surprised to learn that X (formerly Twitter) actually engages in speech that's allegedly noncommercial. 

But so holds the Ninth Circuit today, in an opinion by Judge Smith that's joined by Judges Bennett and Johnstone.

I wouldn't be at all surprised if this isn't the last word on the matter. The opinion's about X's content moderation policies -- quite a hot topic, these days. I suspect you're going to see some votes to take this case en banc and perhaps some Supreme Court interest as well. (That said, because conservatives tend to think support X's views on these matters, as well as X generally, there's likely to be a fairly strong political split in how the various judges approach this thing.)

People v. Mejia (Cal. Ct. App. - Aug. 30, 2024)

I'm not sure if the correct word is ironic or something similar, but I found it insightful that after hitting and killing a bicyclist while driving (and then fleeing the scene), the defendant in this opinion posted on social media a picture of her walking into the police station with the caption:

"Might be my last day of free dumb."

Yep. Free dumb.

People v. Daffeh (Cal. Ct. App. - Aug. 29, 2024)

Here's another questionable use of systemic resources.

Defendant pleads guilty to misdemeanor vehicle theft. He gets sentenced to three years probation. The victim wants $440 in restitution for gas to court etc., but there's never a restitution order entered, nor any request for restitution submitted to defendant or his counsel. At sentencing, the court reserves jurisdiction over any restitution, but during the entire three-year restitution period, no one ever does anything about getting a restitution order; no request, no service, nothing.

Defendant successfully serves his probationary period, so the probation office recommends dismissal of the misdemeanor count -- the usual way these things are resolved. But the prosecutor's office says that the defendant never paid the $440 restitution order, and the defendant (correctly) responds that no such order was ever entered nor any formal request even made.

The trial court says it's not going to dismiss the charge since restitution was never paid, and this appeal follows. The Court of Appeal reverses. As Justice Chou explains: "It is one thing to deny expungement because a defendant has not complied with an order to pay a specified amount as a condition of probation; it is quite another to deny expungement because the defendant has not paid an amount he was not ordered to pay and did not even know about before his probation expired."

Makes sense.

But here's the thing that doesn't make sense: That we're having this whole fight over $440.

California had to pay for (1) defendant's appointed appellate counsel (plus his counsel in the expungement proceeding), (2) the five lawyers on the caption in this case from the Attorney General's Office, and (3) the salaries of all the people in the Court of Appeal who worked on this matter. I promise you that the costs of this appeal were WAY in excess of $440.

Wouldn't it have been far easier and more efficient for the A.G.'s office to just write a check to the victim for $440? (Money, I might add, he's now not getting after the A.G.'s office lost the appeal.)

I get that sometimes you spend money to advance a cause. But I'm not sure that this matter couldn't have been resolved more efficiently (and successfully) than how it ended up.

Over $440.

People v. Howard (Cal. Ct. App. - Aug. 27, 2024)

I did not know that there were unlicensed (illegal) strip clubs out there. In retrospect, I guess it makes sense. That way there are no rules. Drug use is fine, (presumably) illegal sex acts are fine, etc. This is another example of the maxim that if the public really wants something, someone will readily provide it. At least if the public's willing to pay for it, which, in this case, they apparently are.

Though it seems from this opinion that one downside of illegal strip clubs is that, sometimes, you get shot in them.

Salas v. United States (9th Cir. - Aug. 27, 2024)

I understand that different people -- and different cultures -- may have varying approaches to the issue.

Nonetheless, personally, I wouldn't want to be the individual remembered by history as one who filed a federal lawsuit and fought hard in an attempt to make cockfighting legal in the Commonwealth of the Northern Marianas Islands.

Particularly since he loses.

Marroquin v. City of Los Angeles (9th Cir. - Aug. 27, 2024)

The City of Los Angeles asked for a new trial because, among other things, they subsequently discovered a videotape that allegedly conclusively establishes that the City wasn't liable. And maybe the video does indeed prove that fact.

But they didn't introduce that video at trial, and didn't even establish "due diligence" in trying to find out about it during discovery.

That's your lawyer's (and, here, client's) bad. No new trial for you.

Which means plaintiff gets to keep her $500,000 judgment.

People v. Guenther (Cal. Ct. App. - Aug. 22, 2024)

One of the (many) potential downsides of downing a half a bottle of scotch after work in your typical evening at home is that you may become less capable of distinguishing the line between a consensual dominant/submissive relationship with a partner, on the one hand, and something far less legal.

Which may result, as here, in you spending the rest of your life in prison.

(Though maybe the defendant here knew what he was doing all along.)

Mahram v. Kroger Co. (Cal. Ct. App. - Aug. 19, 2024)

I literally just edited a brief on this exact subject last week, so I know a fair piece about when non-signatories to an arbitration agreement can move to compel arbitration against a signatory, as well as whether that issue gets decided by a court or the arbitrator. The correct answer depends in part on what precisely the text of the arbitration provision says, and the doctrinal issues are not all that straightforward (or at least less straightforward, in my view, than it might appear to readers of this opinion by the Court of Appeal).

It's true, though, that not all non-signatories can successfully move to compel arbitration, and that in many cases, that issue gets decided by a court, rather than an arbitrator, even if there's a delegation clause in the underlying arbitration provision. Justice Wiley is also correct when he says that in deciding that issue, it's critical to look at the text of that provision, and criticizes some other cases for not including the relevant contractual language in their opinions.

Justice Wiley doesn't make that same mistake, and quotes the arbitration provision in full at the outset of his opinion. (For background: Plaintiff bought some groceries from Ralphs through Instacart, the Instacart contract contains an arbitration provision, Plaintiff subsequently sued Ralphs, and Ralphs moved to compel arbitration pursuant to Plaintiff's contract with Instacart.)  

Here's what the arbitration provision says:

“Mandatory Arbitration: If we’re unable to work out a solution amicably, both you and Instacart agree to resolve through binding arbitration, rather than in court, any dispute, controversy, or claim arising at any time out of or relating to: (i) these Terms, including the formation, existence, breach, termination, enforcement, interpretation, validity, or enforceability thereof; (ii) access to or use of the Services, including receipt of any advertising or marketing communications; (iii) any transactions through, by, or using the Services, including any goods or services purchased or sold through, by, or using the Services; or (iv) any other aspect of your relationship or transactions with Instacart as a consumer.”

There's also a separate delegation clause that provides that any dispute as to arbitrability shall generally be decided by the arbitrator, not a court.

You can probably figure out the underlying textual dispute. Plaintiff contends that the arbitration provision only applies to disputes between him and Instacart, whereas Ralph contends that this provision applies to "any dispute" (including those with Ralphs) that "arise[s] out of or relate[s] to . . . any transactions through [Instacart] or . . . any goods or services purchased [] through Instacart," which these (allegedly) were since the dispute definitely involves the (allegedly false) price paid for the goods purchased through Instacart.

That's a complicated textual dispute, and you could see the arguments on both sides.

Here's the part I sincerely don't get, though.

Justice Wiley quotes the textual language of the arbitration provision in full, and reminds us that the text of that provision is critical (and, indeed, allegedly dispositive here). But here's the money quote at the end of page 7 of the opinion that explains why plaintiff didn't agree to arbitrate any dispute with Ralphs:

"With our italics, Instacart’s contract language was that the arbitration agreement 'applies to and governs any dispute, controversy, or claim between you and Instacart.' But Mahram had no dispute with Instacart."

Wait, what? That's supposed to be quoting the arbitration agreement -- the whole thing's in quotes. But what's in the quotes is not in the arbitration provision that Justice Wiley sets forth earlier in the opinion. the phrase "applies to and governs" appears nowhere in the opinion other than in the quote on page 7, and certainly not in the arbitration provision quoted earlier. (I double-checked: the word "applies" does not even appear anywhere else in the opinion other than in the quote on page 7.) Similarly, the only place the words "between you and Instacart" appear -- the ones that Justice Wiley emphasizes -- is in the belated quote, not in the original arbitration provision quoted in full at the outset.

So I'm legitimately confused. Does this quote come from somewhere else in the contract, somewhere never before mentioned in the opinion (and not in the original arbitration provision)? Or is this not an actual quote, but rather a purported summary of what the arbitration provision means (even though it's surrounded by quotes in the opinion)?

Maybe I'm missing something. Because if the contract actually said that the only thing that was agreed to be arbitration is what's listed in the quote on page 7, yeah, that's pretty good evidence that disputes with Ralphs aren't included. But if that language is not, in fact, in the contract, then you've got to go through the actual text and explain why Ralphs is wrong that, textually, the dispute indeed arises out of the purchase of goods through Instacart, so the arbitration provision at least textually applies to that.

Again, maybe there are two different arbitration provisions, or maybe what the Court of Appeal puts in quotes is not actually a quote. Those seem the likely possibilities, anyway. But I can't tell which is true, and it matters. Because the textual analysis is a lot more complicated if the contract doesn't actually contain that latter quote. (And is a lot easier if it does!)