I discovered from this opinion that Delta Dental "is the state’s largest provider of dental plans." Maybe some readers have it.
Regardless, if you want to learn about the internal intricacies of this organization, Justice Banke lays them out in this 40+ page opinion. Suffice it to say that some dentists were unhappy about how they were paid, and sued, but lost.
In the meantime: Take care of your teeth.
I'm always interested in published opinions that involve lawsuits against lawyers. Doubly so when the case involves a lawsuit against a big law frim -- here, against Cooley. And triply so when the opinion is written by the 4/1 down and arises down here in San Diego.
Hence my particular interest in this opinion earlier today. Which, as an added bonus, involves core issues of legal ethics, which is a particular interest and expertise of mine.
Justice Irion's opinion affirms the trial court's grant of summary judgment to Cooley, and her analysis seems exactly right to me. A huge problem for the plaintiff is that he admitted at his deposition that Cooley "made clear" to him that it believed (perhaps accurately) that it did not represent him, and that he was instead represented solely by his own lawyer. Once you say that in your deposition, you're hard pressed to submit a contrary (inadmissible) declaration that, as here, contradicts your deposition testimony. No representation, as a general matter (albeit with important exceptions), means no duty.
It also hurts plaintiff that their declaration from their legal ethics expert got excluded below, as well as how the plaintiff (and his counsel) attempted to address that issue on appeal. Here's what the Court of Appeal says on that front: (Plaintiff's legal ethics expert was a California lawyer, Edward McIntyre.)
"To support his contention that Cooley owed him a fiduciary duty, De Meo also relies, in extremely general terms, on the McIntyre Declaration.
De Meo has not pointed us to any specific item in the McIntyre Declaration that he wants us to consider in support of his appeal. Instead, De Meo’s opening appellate brief refers, sweepingly, to paragraphs 138 through 202 of the McIntyre Declaration and states, without elaboration, that “McIntyre’s opinions demonstrate the existence and breach of fiduciary duty, along the same lines as the issues discussed” in the section of De Meo’s brief that discusses the manner in which Cooley allegedly violated the Rules of Professional Conduct. We are not required to search the record to develop De Meo’s arguments for him. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“The reviewing court is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived.”].)
However, even if De Meo had identified any particular part of the McIntyre declaration that he wants us to consider, Cooley filed objections to large portions of the McIntyre Declaration, and the trial court sustained all of those objections. De Meo contends that the trial court erred in sustaining Cooley’s objections to the McIntyre Declaration. However, De Meo fails to develop the argument by directing us to any specific objections that he believes were improperly sustained. Instead, in a cursory argument, De Meo contends that the trial court erred, across the board, in sustaining all of Cooley’s objections."
That's not good enough. Which means, in the end, that summary judgment gets affirmed.
Did Cooley, in my view, make a mistake? Definitely. For one thing, no way should it have talked to De Meo without his lawyer present (and without the lawyer's consent) during the transaction. That's arguably (indeed, typically) a violation of the ethical rules, and it also led (in my view) directly to the lawsuit here. It also left Cooley open to De Meo claiming that Cooley told (or implied to) him that it was his lawyers. Cooley's just lucky that De Meo said what he did in his deposition. Had De Meo not done so, this case could easily have gone the other way.
Lesson of the day: Don't talk to a represented party without the other lawyer's consent (and, hopefully, presence).
Be nice to your kids. Otherwise they might put you in a home like this one (in Riverside):
"On January 24, a relative of a Secure Hands resident called the police after the relative visited the facility. When the responding officers entered the facility, they were overcome by the smell of human waste. The officers found one woman lying in fecal matter on a bare box spring. She had Alzheimer’s disease and was unable to move on her own or speak. She was unclothed except for a soiled adult diaper, and there was a mattress next to her that had feces and urine all over it. A second woman was trapped under another mattress in the same room. The second woman was also unclothed except for an adult diaper, which was saturated with feces and urine, and tears were streaming from her eyes. She appeared weak and asked for water; she said that she had not had water for days. The officers found a male resident in another room who appeared to be having a seizure.
The officers found Michael in a third room. He was screaming for food and said that he had not eaten in awhile. He also said that he had limited mobility and could not get out of bed that day. The pad on his bed was soaked with urine, and he reported that the pad had not been changed in days. Michael told the officers that someone came to care for him a few days per week, but that person had not been there for awhile. The person bathed him and changed his bed pad, but if she did not visit, the pad could go days without being changed."
There's additional disgusting stuff in the opinion as well. The place was a nightmare.
Fortunately, at least one person went to jail. Though, in this case, for only four months.
They are perhaps lucky that I was not the judge.
Here's an example, in my view, of the empty formality of texualism.
California's Brown Act states that city council meetings should generally be open to the public, but that "[i]n the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.”
During three Berkeley city council meetings in late 2023 and early 2024, the public was disruptive, so the city council decided to close the meeting. But instead of physically removing the public from the room the city council was initially in, the city council moved to a different room and continued the session without the public. Plaintiffs sued, claiming that the Brown Act required the city council wasn't allowed to move to a new room, and instead had to stay in the same room but clear the public.
The trial court dismissed the lawsuit. The Court of Appeal reverses, holding that this states a claim under the Brown Act. Because the words of the statute expressly say that the city council could "order the [] room cleared and continue in session" but don't expressly say that the city council can move rooms.
To me, that's silly. It matters not one iota what room they're in. The public's excluded. Who cares whether it's the original room or a different one? Moreover, there's good reason to simply move rooms. That way you don't have to physically remove people, with the resulting potential for violence.
Yes, the statute says "order the meeting room cleared and continue in session." But that's what the city council did. It "ordered the meeting room cleared" -- albeit after it had moved to a different room; i.e., eventually, the public was cleared" and "continue[d] in session" (in a different room). The words of the statute weren't violated.
And even if they were, I'd have interpreted the Brown Act pursuant to Section 3533 of the Civil Code, which dictates the statutory maxim that "The law disregards trifles." It's irrelevant whether the initial meeting room is cleared and the meeting continues in that empty room or whether that initial room is emptied only later and the meeting continues in a different room. The public isn't there either way. The difference is a trifle (if that).
Ditto for Section 3511 ("Where the reason is the same, the rule should be the same."), Section 3528 ("The law respects form less than substance."), and Section 3532 ("The law does not require idle acts.").
I would have affirmed. (And were I on the California Supreme Court, I would vote to grant review and reverse. 'Cause the resulting opinion, in my view, literally requires only a half-dozen pages. It's easy..
Kudos to Justice Rodriquez for publishing this opinion today. The trial court thought that plaintiff didn't have standing to seek statutory damages since he didn't suffer any actual injury, so dismissed the lawsuit. That's clearly wrong. Standing in state court is different than in federal court. (And, even there, statutory damages sometimes themselves create standing.) The statute here allows statutory damages -- in order to deter misconduct -- even absent actual injury. Exactly right.
Ah, the joys of owning a condo.
Especially when, as here, the building is accidentally built above an abandon, unregistered water well.
Sounds like an absolute nightmare.
Judge Smith dismisses this appeal (and the underlying lawsuit) for lack of subject matter jurisdiction, noting that the plaintiff -- who filed in federal court to begin with -- "failed to plead subject-matter jurisdiction in the original Complaint, First Amended Complaint, or SAC. [Indeed, left out entirely both the citizenship of the defendant in this purported diversity case as well as failed to allege any amount in controversy.] We issued two orders outlining our jurisdictional concerns. Yet Plaintiffs’ TAC is far from alleging a viable amount in controversy."
Given these underlying facts, it's perhaps quite generous for Judge Smith to say in the immediately prior sentence that "Plaintiffs are not pro se; they have sophisticated counsel."
Sometimes a powerful hypothetical is worth a thousand words.
In reversing and remanding the trial court's contrary judgment below, here's what Justice Earl says about the precise issue at hand; i.e., whether you can add an individual to the judgment as an alter ego despite the fact you previously lost your alter ego claim at trial:
Assume Corporation ABC (ABC) borrows $100 from John and fails to repay it. Assume further that ABC has one shareholder—Jane. John sues ABC and Jane to recover the $100, and he alleges Jane is the alter ego of ABC. At trial, John proves ABC owes him $100 but fails to prove Jane is the alter ego of ABC. Instead, the trial court finds ABC and Jane have never comingled funds; Jane has never treated ABC’s assets as her own or diverted its assets to herself to the detriment of creditors; corporate formalities were always observed; and ABC was adequately capitalized and had $1,000 in assets at the time of trial. The trial court also finds no inequitable result would follow if ABC’s corporate separateness from Jane was respected. The trial court enters judgment against ABC (but not against Jane) for $100.
After judgment is entered, Jane decides John will never collect a penny from ABC, and she transfers all of ABC’s assets to herself and dissolves the corporation. If John thereafter moved to amend the judgment to add Jane as a judgment debtor based on an alter ego theory, would collateral estoppel preclude him from doing so on the ground the alter ego issue had already been decided against him? We do not believe it would. Although the alter ego issue was litigated and decided, the relevant facts and circumstances materially changed after the judgment was entered. To put it another way: When the judgment was entered, Jane was not ABC’s alter ego, but based on postjudgment events, she became ABC’s alter ego, and it would be inequitable to continue to respect ABC’s corporate separateness from Jane."
Sounds exactly right to me. Well spoken.
I'm not sure why Harmeet Dhillon is listed as the first counsel of record in this appeal. Or, more accurately, why -- at least according to the docket sheet -- she never substituted out of the case.
Because I'm pretty sure she's been the Assistant Attorney General for Civil Rights for nearly six months already.
I'm fairly confident that you can't retain your position as counsel of record for someone in a civil lawsuit while simultaneously serving as an official in the United States government.
(Put to another side that she apparently maintains her own law firm. Or the irony, at least to some, of her appointment as the head of the civil rights division.)
Not surprisingly, many of the conservative judges on the Ninth Circuit voted (unsuccessfully) to take en banc the panel's decision to uphold the district court's preliminary injunction of Arizona's rules that require people to present proof of citizenship in order to vote.
Those various judges explain their respective positions here.
It's now the Supreme Court's turn.
Justice Wiley rightly publishes this opinion. You generally can't take away parental rights just because the parent is in prison. There has to be some harm to the child.
In the case at hand, Father and Mother had joint custody, but then father committed a crime and went to prison. Father arranged for the child to live with his sister, Martha, and that worked out just fine. But one day, Mother picked up the child and refused to return her, and since Mother had joint custody, there was nothing Martha could do about it. So the child was with Mother. Which very much didn't work out -- I'll not recount the many problems there (including, weirdly but insignificantly, that Mother often picked up the child from school "wearing a bathing suit") -- so the court removed the child from Mother.
But at the same time, the court also took away Father's rights, on the theory that he couldn't care for the child while in prison. Hence the child's appeal, since the child wants Father to retain parental rights and loves Father.
The Court of Appeal reverses the decision below and remands for reconsideration in light of whatever events have transpired in the meantime.
As I said, Justice Wiley's opinion is helpful, and seems generally right to me. But I nonetheless wanted to mention a couple of nits that came to mind while reading it.
First, at the top of page seven, the opinion claims that the child "was not [] affected by the father's criminal activity" (which involved possession of a gun and drugs). I agree that his crime wasn't alone sufficient to terminate Father's parental rights, but it seems wrong to say that the child wasn't affected by his crime. She was. If he hadn't committed a crime, he wouldn't have gone to prison, and the child would have retained his in-person love, affection and companionship. She pretty much entirely lost that once he went to prison. She was accordingly most definitely affected by his crime. It harmed her, and in a way about which we care. (Again, that might not alone be sufficient to terminate parental rights, but it affected her, and I would not say or pretend that it didn't.)
Plus, the fact that Father was in prison almost certainly made it a fair piece harder for him to prevent Mother 's alleged psychosis and drug use from harming the child. Father apparently tried -- or at least started the process -- of trying to get sole custody of the child once Mother took the kid away from Martha. That'd have been great. The trial court found that Father failed to protect the child from Mother while he was in prison, but Justice Wiley's opinion responds that since Mother had joint custody, Father "could not be blamed for failing to do what he lacked the legal right to do" (e.g., stopping Mother from taking the child from Martha). That's true to a degree.
But Father did have a legal right to request that the court remove joint custody and give sole custody to Father (as he indeed attempted to do). And the fact that he was in prison made such a request more difficult to effectuate -- both practically (because it's tough to file things in prison) as well as effectively (because judges look somewhat less kindly on the prospect of giving sole custody to someone who's in prison and hence can't personally take care of the child). So, in part, yeah, Father can, in fact, perhaps be blamed -- at least a little -- for not doing something that he indeed had a legal right to at least attempt to do.
Lastly, I would have liked to hear more about what seems to be an important undercurrent here. Justice Wiley's opinion contains the following brief mention: "The juvenile court originally detained A.M. only from the mother. However, after noting that a lack of removal from the father might impair Martha’s ability to get funding, at county counsel’s suggestion," there was another hearing, and the court at that point removed the child from Father as well."
If the real reason the trial court removed the child from Father as well was simply to get the child more support, and that worked, well, geeze, I totally understand why it did what it did. (Even if that's perhaps legally erroneous.) Is the ultimate effect of giving Father back his parental rights that this seven-year old child now has less support (e.g., food, money, etc.) than she did before today's Court of Appeal opinion? If so, that radically sucks. And if that's the real reason why Commissioner Marpet (in L.A.) did what he did here, quite frankly, I can both see why, and empathize with, why that happened. Something that the tenor of the Court of Appeal's opinion doesn't really reflect.
So I would very much have liked to hear more about this. I'm not entrenched enough in the dependency space to understand the details. But I definitely want this child to have (1) a parent who loves them and who can at least make arrangements for her care while he's in prison, while (2) simultaneously getting the support she needs. If, for some reason, (1) is inconsistent with (2), I would like someone to explain to me why that's in fact the case. 'Cause it needs to change.
What I recall about my Federal Courts class in law school was that it was (1) very difficult, and (2) very confusing. And I tried. Hard. (I ended up doing just fine, but still.)
I say that because I had a similar reaction to the two Ninth Circuit opinions published today, both of which directly involved various complicated doctrines that we discussed at length in Federal Courts.
The first of today's opinions involves Younger abstention alongside constitutional ripeness doctrines in the context of a federal First Amendment challenge to medical disciplinary proceedings brought against various Washington state doctors who published misleading information about COVID during the pandemic. Yikes. Complicated complicated complicated. (But, ultimately, yes, the federal courts abstain over many of the claims and the rest are unripe).
The second opinion involves yet another abstention doctrine -- this time, Colorado River -- and how it in turn applies to appellate deadlines under Rule 58(c); do you have to file an appeal immediately under the collateral order doctrine, or can you wait until the denial of a motion to vacate the stay, and in either event, when does the appellate clock start ticking in the context of a "text-only" (i.e., no PDF attachment) minute order from the district court? Yet more multifaceted and complicated stuff. (Short answer, by the way: You must appeal immediately.)
In short, my head hurts today in somewhat the same fashion as it did 35 years ago as a 2L in law school.
The Ninth Circuit holds that Arizona can't prohibit election activity that occurs "with the intent or effect of threatening, harassing, intimidating, or coercing voters."
I'm somewhat surprised at that result. That Arizona provision seems to me quite similar to 18 U.S.C. sect. 594, which makes it a crime to "threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose." The Ninth Circuit opinion nowhere mentions Section 594, which has been repeatedly upheld by the courts. The substantive language of the Arizona provision -- e.g., "intimidate," "threaten" and "coerce" -- is basically identical to the federal provision. Hence my surprise.
Admittedly, there is one portion of the Arizona provision that seems different, and problematic. The Arizona Secretary of State has provided "examples" of conduct that might violate the Arizona law. Some of those examples seem totally fine to me; e.g., "[b]locking the entrance to a voting location," [d]isrupting voting lines, etc.
But one of those examples is "[u]sing threatening, insulting, or offensive language to a voter or poll worker." Today's Ninth Circuit opinion focuses pretty much exclusively on the "offensive" part of that example, noting -- accurately, I think -- that language that might perhaps be deemed offensive may still be protected by the First Amendment.
Fair enough. I see why one might accordingly enjoin enforcement of that example. But the underlying regulation, which its express focus only on conduct that threatens, harasses, intimates or coerces voters, nonetheless seems fine to me. Personally, I don't think that "offensive" language in fact constitutes a threat or intimidation or coercion, so don't see how it would qualify in the first place. But given the example, why not just sever the unconstitutional example -- which isn't even actually part of the regulation, but rather merely an "example" of ostensibly prohibited conduct?
This is also relevant, I think, to the standing inquiry. I'm sympathetic to the panel's view that there's a potential chill on speech. But given the absence of anyone actually being charged -- or even threatened -- with using "offensive" speech (pursuant to an "example" promulgated by the Secretary of State), is it really plausible that someone's going to be prosecuted for, say, wearing a shirt that says "Israel has a right to exist" (which is one of the hypotheticals in the opinion)? Doesn't seem likely, particularly given the text of the actual regulation. I strongly doubt anyone, in any universe, would think that such a piece of clothing would "threaten" or "intimate" a voter.
So, yeah, the "offensive" example seems wrong (and impermissible), but I'm not sure that enjoining the entire regulation seems appropriate for one erroneous exemplar.
I very much understand the Court of Appeal's ruling. It's a death penalty case, and an automatic appeal is accordingly pending before the California Supreme Court. So the Court of Appeal holds that the trial court does not have jurisdiction over a resentencing petition, since that might interfere with the disposition of the automatic appeal in the California Supremes.
Though, as the opinion notes, the murders here transpired in the previous century, the death sentences at issue were imposed a quarter century ago, the briefing in the California Supreme Court took seventeen years, and the California Supreme Court has been "working" on that appeal for the past eight full years.
Given these facts, as a practical matter, I'm not sure that there's a ton of hard work going on with which to interfere anyway.
But I get it. Doctrine. Exclusive jurisdiction. Understood.
Judge Lee's opinion today seems moderate and right to me. Yes, the sentence is long (12+ years), but there's insufficient evidence that it's inordinately long, and the defendant was convicted of attempting to pimp a 16-year old and the statutory minimum is 10 years. Yes, there was some basis for asserting that there might be discriminatory racial prosecution, since all of the San Diego federal juvenile sex trafficking sting defendants were Black, but the sample size was incredibly small (six people) and the district court didn't abuse its discretion in refusing to allow discovery. Those conclusions seem sound to me, and I liked the careful and considerate way Judge Lee wrote the opinion.
I'll add that I thought that the San Diego task force that conducts these online stings seems to be doing a very good job. You can read the opinion for more details. But I was very impressed by the professionalism and effectiveness of the stings. Put up a fake Instagram page of a fake woman with risque photographs and various veiled references to prostitution (e.g., stacks of money, "roses" (which I know from other cases is a euphemism for money paid for sex), crowns, etc.) and let the potential would-be pimps come to you. And then, once they do, slowly reel them in, and then up the ante by saying that you're 16. That latter point will make for huge time in prison.
The one symbol I didn't understand -- which I then had to look up -- was including the number "304" in the Instagram handle. What? How's that a reference to prostitution? Hadn't heard that before. I know from originally being from Virginia that that's the area code for West Virginia, but how's that related?
Oh. Now I get it. Type it into a handheld calculator and turn it upside down and it spells "Hoe".
Like anyone has a handheld calculator these days anyway.
About six months after plaintiff's life partner passed away, a co-worker named Lisa Sanders allegedly started showing an interest in him. A lot of interest. As today's opinion explains:
"Sanders began sending plaintiff multiple unsolicited nude pictures and stating she wanted to have sex with him . . . . On March 3, 2023, Sanders went to plaintiff’s home uninvited and brought a[nother female] friend. Sanders indicated to plaintiff she was there to have sex with him . . . . Sanders again indicated she wanted to have sex with plaintiff. Sanders eventually departed plaintiff’s property, but in his driveway she left behind a cucumber with a condom attached. Later that same day, Sanders texted plaintiff and invited him to a hotel room to have sex and stated, “‘I’m at the sleep inn & suites and I have dope … let me know if you want to fuck.’” She also sent plaintiff multiple sexual images, including of her genitals, breasts and buttocks."
I hate days like that.
Life tip: If you've got a no license, a fake identification on your center console, and a loaded gun and $14,000 in a little black bag, maybe don't go speeding down the 680 in front of a cop.
Just a suggestion.
Fair warning: I'm about to make a brief but completely inappropriate and insensitive comment.
Here goes:
I bet that the City of North Las Vegas wishes that Kristi Noem had been appointed to the Ninth Circuit and was on this panel.
(The opinion involves the disputed liability of the City for shooting two innocent dogs during its search for a suspect. The Ninth Circuit reversed the district court's dismissal of the lawsuit against the City. As for Kristi Noem, well, you know.)
I agree with Justice Rodriguez that this appeal is frivolous. The sanctions imposed below were entirely justified given the multiple failures to respond to some of the form interrogatories, and appealing their imposition was entirely unreasonable. (Unlike Justice Rodriguez, I don't really care about not briefing one of the three issues listed in the notice of appeal -- that's fairly routine -- and I think it arguable that the appeal of the separate $1,500 sanction is permissible notwithstanding the $5,000 appellate minimum given the other $6,500 sanction. But, yes, with respect to the $6,500 sanction, the appeal is clearly meritless.)
So I'm on board for additional sanctions on appeal.
But two things were interesting.
First, it's unusual for the Court of Appeal to admit that the oral argument flipped its intended outcome. The tentative appellate opinion rejected the appeal on the merits (obviously) but denied to impose additional sanctions. But then the panel heard oral argument and went the other way on sanctions. The oral argument of appellants clearly did not help their cause.
Second, I thought it unfortunate that Justice Rodriguez didn't explain in the opinion how he selected the amount of sanctions imposed. The opinion notes that the San Francisco City Attorney's office asked for nearly $200,000 in sanctions, claiming that this was how much the City spent defending the appeal. To be honest, I was stunned by this request. It should not cost $200,000 to file (1) a single opposition brief, (2) opposing a silly, frivolous (read: easy) appeal, (3) over a dispute involving only $6,500. If the City did, in fact, spend over $190,000 in opposition to the appeal, then I seriously question the oversight (and wisdom) of the Powers That Be in the City Attorney's Office. It shouldn't require (or justify) nearly that much.
My initial reaction, to be honest, was to potentially deny sanctions entirely on the ground that the amount of sanctions requested was itself manifestly excessive.
In the end, the Court of Appeal imposes $30,000 in sanctions. That sounds pretty much exactly right to me.
But it does so without any explanation for this figure. Or any discussion at all between the huge variance between the amount of sanctions requested ($190,000+) and the amount of sanctions imposed ($30,000).
I'd have liked to hear more about this.
Still would.
This is an opinion by Justice Wiley, so it's replete with one- and two-sentence paragraphs. One series of paragraphs/sentences reads:
"Sarabia fired more shots through the door at Ramon.
Romero ran to a closet. She hid behind the curtain that served as the closet door.
Sarabia called to her, “Where are you, bitch?”
Sarabia shot through the curtain into the closet, hitting Romero in the stomach. Despite her wound, Romero kept quiet. She heard Sarabia rustling among things in the room.
When Sarabia left, Romero called 911.
Officers found German dead in a pool of blood.
The officers heard the shower running. They tried to open the door, but it was blocked. Forcing their way in, they found Ramon in a deathlike pose. Paramedics later saved Ramon."
I understand all of that, but I'm not sure what it means to be in a "deathlike pose" (or why that's significant or worthy of inclusion).
I've looked it up, and apparently that term has never heretofore be used in any published (or unpublished) state or federal opinion. Mr. Google says there are some clinical references to the term, but I'm still not sure what the phrase is intended to convey, other than that Ms. Romero was shot and presumably lying in a still position.
Though, as an aside, "Deathllike Pose" might be a good name for a band.
You don't see above-guidelines sentences very often. But from the facts of this case, you can potentially see why the district court (and Ninth Circuit) thought that Mr. Taylor was an understandable exception to the usual rule:
"In October 1995, Taylor robbed four banks across Los Angeles (the “underlying criminal offense”). Taylor pleaded guilty to five counts . . . In April 1996, the district court sentenced Taylor to 147 months of imprisonment for the underlying criminal offense. The court also imposed a five-year term of supervised release for the underlying criminal offense, subject to conditions.
In April 2007, Taylor’s term of supervised release began upon his release from prison. In August 2008, Taylor used a handgun to rob a bank. Taylor was prosecuted in state court, and received 17 years of imprisonment in state custody. In December 2018, while still in state custody, Taylor stabbed another inmate with a knife. Taylor received four years of imprisonment in state custody for charges arising out of the stabbing, to run consecutively with Taylor’s existing 17-year sentence. From 2016 to 2023, Taylor was cited for 17 rules violations while in state custody, some of which involved violence.
In November 2023, Taylor completed his state term of imprisonment and was transferred to federal custody. Previously, the United States Probation Office (Probation) had filed a petition for revocation of supervised release, alleging that Taylor’s August 2008 conduct violated the conditions of his supervised release. In December 2023, Probation amended its petition for revocation of supervised release. Given Taylor’s criminal history, Probation calculated a revocation imprisonment range of 18–24 months. Taylor admitted all allegations in the amended petition. The district court accepted Taylor’s admissions.
In February 2024, upon revoking Taylor’s supervised release, the district court sentenced Taylor to an above-Guidelines sentence of 60 months of imprisonment, followed by 24 months of supervised release."
Mr. Taylor's been in prison for almost three decades, with the exception of a single year outside -- and he made sure to rob yet another bank (and get caught) promptly upon release. That, plus the stabbing while in prison, plus all the rules violations, does not exactly make a judge think that the guy's rehabilitated at this point.
(And, yes, I know that "rehabilitated" is allegedly a "made up word," at least according to this guy. Still. His allocution was, I suspect, quite a bit more persuasive than Mr. Taylor's.)
Sometimes opinions are fascinating simply because they give insight into other people's personalities; insights that we wouldn't ordinarily see (and/or people with whom we wouldn't otherwise ordinarily interact).
I just can't fathom reacting the way he did. I mean, I get it. I've read lots of criminal opinions. I get that people have impulse control issues.
Still.
"Defendant and the victim, Megan Carling-Smith (Megan) met and began dating in 2014 or 2015. They moved into an apartment together in July 2015. In 2018, they made plans to get married. That same year, Megan began looking to buy a home where they could live together. In October 2018, Megan’s offer on a home was accepted, with the closing date set for late November.
In the early afternoon of November 20, 2018, Megan left the apartment to sign escrow closing papers. Megan asked defendant to accompany her, but he chose to stay home. When Megan returned to the apartment, around 4:00 p.m., defendant was intoxicated. Defendant testified that he had started drinking a little after noon. He drank two pints of liquor, smoked four or five marijuana joints, and consumed prescription pills (Xanax and Percocet) that he had gotten from a friend.
That evening, defendant and Megan argued about defendant’s infidelity. Defendant testified that during the argument, Megan “kept pushing the issue” of his infidelity and “wouldn’t let it go.” They “just kept arguing and arguing about the same thing over and over.” Eventually, he “kind of just snapped.” In a “rage,” he violently beat Megan, repeatedly hitting her in the face and body and strangling her, until she was unconscious.
Defendant admitted that Megan did not have any weapons, did not threaten him, and did not use any force against him. He did not remember any particular words that Megan said to trigger him: “We were just arguing.” When asked why he reacted as he did, defendant responded, “I don’t know. I wasn’t thinking clearly at all.” “I think it was just the pushing of the issue.” He recalled that Megan did not say anything to him during the attack and that she did not fight back.
After Megan stopped moving, defendant moved her to the bedroom. She was not responsive, and defendant was scared. At some point, he tried to perform CPR, but “[i]t didn’t really work well.” At 3:48 a.m., defendant searched on the Internet for “how to tell if somebody is actually dead.” Around 7:10 a.m., he searched for “how to check for a pulse.” Around 8:05 a.m., defendant called 911. Defendant lied to the dispatcher and said that Megan had been injured in a car accident the night before and that he had found her unresponsive upon waking that morning.
When paramedic firefighters arrived, they found Megan’s body on the floor of the apartment. She had bruising, swelling, and trauma to her face. She had no pulse, her skin was cold, and rigor mortis had set in. She was pronounced dead at 8:11 a.m."
As the jury found, that's second degree murder. Affirmed.
When I first started reading this Ninth Circuit opinion, I thought I was going to insult the Nevada Attorney General's Office for blowing the 30-day deadline to file their notice of appeal. After all, it's a very easy deadline to follow, and filing the notice itself is incredibly straightforward.
But once I read on, I realized that such a critique would be misplaced. I understand now exactly why they thought they had more time: because the Federal Rules of Civil Procedure unambiguously gave them 150 days. Yet the Ninth Circuit holds -- for the first time ever, in any court, I believe -- that these appeal rules impermissibly conflict with the underlying statute and are thus invalid.
Good to know.
Today's Ninth Circuit's holding is applicable only to appealable interlocutory orders; here, the district court's denial of qualified immunity. Nonetheless, it's important. There are lots of those, and I suspect that lots of governmental bodies have filed their appeals beyond the usual 30-day period.
No more. After today's opinion, it's crystal clear that they've only got 30 days.
Which shouldn't be a problem. Again: it's easy to file the notice. You've just got to know the rule.
I'm fairly confident that everyone intended to give would-be appellants in these circumstances 150 days. So, in a perfect world, Congress would just amend the underlying statute to correspond to the dictates of the Federal Rules of Civil (and Appellate) Procedure. (Or the Supreme Court would grant certiorari and reverse.)
We'll see if any of that happens.
For now, though, remember the rule: 30 days. File quickly.
When the previous head of the Public Defender's Office down here in San Diego left the job, there was an opening, and in an unusual move, a sitting judge -- Judge Washington -- applied for the position.
But there is a statute (Government Code Section 27701) -- originally enacted in 1921, and unchanged since 1947 -- that provides: “A person is not eligible to the office of public defender unless he has been a practicing attorney in all of the courts of the State for at least the year preceding the date of his election or appointment.”
Judge Washington was a long-time public defender before he was appointed to the bench, but since he's now a judge, he wasn't a practicing public defender during "the year preceding the date of his election or appointment.” So he couldn't be appointed.
So he sued, claiming that's not what the statute means.
The trial court ruled against him, and today, the Court of Appeal affirms. The statute's unambiguous. It means what it says.
I've now read the statute, as have you. Yep. That's what it says.
It may be a silly law. But there are lots of silly laws, and ones passed in 1921 are definitely no exception.
Sorry about that. But, yeah, the statute applies.
On the upside, at least Judge Washington can now go back to hearing criminal rather than civil cases. (He was reassigned to civil ones since he had a conflict hearing cases brought by the public defender's office while he was seeking to be its head.)
It's an death penalty case, and involves the horrible child abuse murders of an infant and a four-year old. Important on any metric. Accordingly, the various opinions are a combined 159 pages. Hefty reading.
Given the stakes at hand, it's somewhat ironic that the only (partial) dissent is from Chief Justice Guerrero, who writes to express her disagreement with the majority's decision on the $200 parole revocation fine.
An issue in a number of other cases, I'm sure, so definitely worthy of informed resolution.
But the fate of the $200 fine is definitely not the big-ticket item in this case.
Here's a good example of a quasi-Streisand effect as applied to precedent.
The studio that owns the rights to the movie The Fall are, like many studios, tired of people pirating the thing. So they decide to catch some people and sue them. They hop on BitTorrent and quickly find some people sharing the thing, and log their IP addresses.
Normally, in situations like this, you just file a John Doe complaint, subpoena the internet provider, get the actual names, and then replace the John Does with the actual defendant and go to town. But the DCMA also contains a more streamlined subpoena process that allows copyright holders to skip the whole "file a lawsuit" part and obtain a quick subpoena by filling out a form, and the statute says the court clerk "shall" issue the subpoena if it's done properly. No need to even involve (or have to convince) a judge or anything like.
The studio discovers that 29 of the (alleged) pirates have IP addresses with Cox, so fills out the forms and asks the federal court for a streamlined DCMA subpoena to Cox that discovers the identities of the alleged pirates. Cox forwards that subpoena (as the DCMA requires) to those 29 people, and -- predictably -- none of them do anything about it.
Except for one.
One guy -- John Doe -- writes a letter back to the Court saying, essentially, "Oops, I'm not a pirate, it's just I didn't put a password on my WiFi. Problem solved now. Never downloaded that movie. Must have been someone else using my WiFi. Please don't tell them my name." The district court interprets that letter as a request to quash the subpoena to John Doe, and asks the studio to respond.
Now, at this point, if I'm the lawyer for the studio, here's what I'd do: Nothing. You've already got the names of 28 alleged pirates -- Cox gave you those already when those 28 never responded. Go to town and sue all 28 of them (or whatever subset you feel like) to make your point. Leave Mr. Active -- John Doe -- out of it.
Sure, we all know he's probably a pirate too, but who cares? Having 28 defendants is as good for your purposes as 29. Probably even better, since the 29th ill probably be a little more pain in the ass than Mr. 29, who got off his duff and bothered to write a letter in response to the subpoena.
But, no, the studio here spends the money to write a whole big motion saying that the subpoena to Cox is valid, the DCMA allows it, blah blah blah. Spending far more money, I'm certain, than a rental of The Fall would possibly cost, as well as more than you're ever going to get from Mr. 29 anyway, since most of the guys I know who pirate movies don't exactly have $150,000 in statutory copyright damages lying around in their couch cushions.
Plus, even that assumes you first win the subpoena motion, and then prevail in your copyright suit against his "no password" defense. And, here, the studio doesn't even get to that latter point, and loses on the first. The district court holds that an internet provider -- Cox -- isn't subject to the expedited DCMA subpeona process because they're just providing the tubes, not actually holding copies of the movie itself.
Now, at this point, if I'm the studio, here's what I am going to yet again do: Nothing. Leave it be.
It's a Hawaii district court opinion. An unpublished one, at that. Who cares? Let it go. Dominate the defenseless other 28 defendants, make your point, and move on.
But nope. The studio appeals. Spending more time and money trying to get approval for the subpoena for Mr. 29.
Leading to today, at which the Ninth Circuit holds -- in a published opinion -- that, yep, you can't use the streamlined DCMA subpoena process to get subpoena ISPs like Cox.
So, before, you could issue a subpoena, get one entered, get virtually every name you wanted, but you might not get the name of that incredibly rare person who actually bothered to file an objection.
But now, after your appeal, in binding precedent, you -- and the other studio like you -- are categorically precluded as a matter of law from doing so to the 67 million residents of the Ninth Circuit. As well as all of the ISPs in that area, and I assure you, there are quite a few.
Not a sound strategic decision.
But yay for Mr. Doe. Well done. Pirates everywhere owe you a debt of gratitude.
And to personally commemorate this august opinion, and in honor of the Streisand effect, this weekend, I'm definitely not going to watch Fall -- which actually seems like it could potentially be a cool movie -- on a pirate website.
And neither should you.
Earlier today, Judge Bumatay, joined by Judges Callahan and VanDyke, authored a strongly worded, 27-page single-spaced dissent from the denial of rehearing en banc in this case, which involves the minimum wage applicable to civil immigration detainees. Simultaneously, Chief Judge Murguia, joined by Judge Fletcher, spent a grand total of two and a half pages responding to Judge Bumatay. And Judge Collins, joined by Judges Nelson and Bress, says in single paragraph that he'd have taken the case en banc for the reasons stated by Judge Bennett in his panel dissent.
Those disparate approaches probably speak volumes about various personalities on, and interactions between, some of the current judges on the Ninth Circuit.
There were over a half dozen published Ninth Circuit opinions today, which comprised nearly 200 pages of single-spaced text. So a lot to read.
I nonetheless thought I'd only talk about this one, since it seemed to me the most doctrinally interesting.
It's a thorny area of the law involving affirmative defenses to criminal statutes. The normal rule, as you know, is that the state has the burden of proving the elements of a crime beyond a reasonable doubt. At the same time, however, the state can make affirmative defenses, and as to those, (1) the defendant has the burden of proof (which is turn often practically compels him to take the stand), and (2) is required to demonstrate those by the preponderance of the evidence (rather than the "beyond a reasonable doubt" standard). So it's a very big deal whether something's an element or an affirmative defense.
And what matters, the Supreme Court has held, is substance, not form. A state could not, for example, constitutionally say "It is a crime to be a nurse in a hospital when a patient dies, but it's an affirmative defense if the nurse shows they didn't cause the death." No good. You can see why.
Which brings us to today's case.
Arizona says that it counts as molestation if you deliberately touch a child's genitals. But it's an affirmative defense if you didn't touch them for sexual purposes. You see where the resulting burdens are. Arizona's statute in this regard is different than every other state, which has sexual motivation as an element of the offense. Is Arizona's statute constitutional, and is the defendant here (who was convicted based upon the Arizona statutory regime) entitled to federal habeas relief?
There's a ton to Judge Bybee's opinion. It's really quite good, and explains a very complicated doctrinal area in a clear and understandable fashion. He ultimately holds (alongside the rest of the panel) that the Arizona regime is unconstitutional, since it in substance turns an essential element of the offense (sexual motivation) into an affirmative defense.
What does a ton of work for Judge Bybee -- and understandably so -- is his claim that, as written, the Arizona statute would criminalize a massive volume of entirely innocent conduct if you took away the affirmative defense. When a parent bathes their child, after all, there's sometimes the occasional touching of the child's genitals and/or anus. Is that really molestation? Arizona says yes, albeit with an affirmative defense if the parent can prove that the touching wasn't sexually motivated.
That makes sense to me. A powerful argument. And the fact that prosecutors wouldn't charge parents for bathing their kids doesn't save the statute -- that relies on noblesse oblige to salvage an unconstitutional statute, and we're not down for that
Solidly argued. So you can see full well why the panel comes out the way it does.
So the opinion is worth mentioning (as well as reading) for that reason alone.
But I wanted to add one other thought as well.
Even more than the "bathing" argument, Judge Bybee's opinion relies a ton on the argument that the Arizona statute would criminalize anyone who changed the diaper of a baby. Judge Bybee articulates this argument over a dozen times, saying that (1) if you change a baby's diaper, you're automatically guilty of child molestation in Arizona (absent proof of an affirmative defense) [e.g., "Arizona’s child molestation scheme . . . . criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation."); and (2) if you instead don't change the baby's diaper, that's a crime too. ["Any parent or caretaker who fails to change a child’s diapers may be charged with criminal neglect.]
So you're damned if you do, and damned if you don't. Or, in Judge Bybee's words, "Arizona can thus punish both the changing and the nonchanging of a diaper. No matter what choices parents or caretakers make, they have violated Arizona law." P.S. - Oh, and if you see someone else change a diaper, you're guilty if you don't report that too. ("Given the mandatory reporting requirement, a parent who observes a spouse changing a diaper has an obligation to report the violation, under penalty of law.")
Okay. Again, a powerful argument.
My only comment, though, is about the underlying assumption. Does changing a diaper really involve the elements of child molestation under Arizona law?
I get it. If, during the diaper change, you touch the child's genitals, that satisfies the elements. Since the statute says that you're (facially) guilty if there's "any direct or indirect touching . . . of any part of the genitals, anus or female breast by any part of the body or by any object."
But, as a factual matter, how often does that really happen when you change a diaper?
I've got four kids. I've changed my share of diapers. For me the number of times that I touched their genitals while doing so (while holding a wet wipe or otherwise) was very small. If the kid was actively peeing on me during the diaper change, well, yeah, sure, sometimes I had to move to block the stream, and that could involve touching the genitals. But otherwise, I suspect that the number of times one actually manipulates the child's genitals during a diaper change seems relatively small.
Now, if we're talking about a diaper that's full of feces, that often involves a different story. That's a situation in which you may well have to touch (albeit with your covered hand, obviously) the child's anus or genitals. Gotta get that area clean, for sure. Yep, in that situation, you might well be facially guilty of child molestation under Arizona's statute.
But it nonetheless seems overly broad to repeatedly say, as the opinion currently does, that anyone who changes a diaper is facially guilty. (E.g., "Everyone who knowingly changes a diaper could be convicted of child molestation."). If we're talking about poo diapers, okay, yep, I think that's generally correct. At least as I recall the whole diaper-changing experience.
But for those half (or more?) of diaper changes that merely involve pee, I don't think that's usually a facial crime even under the Arizona statute. You've got a valid defense even beyond the affirmative one, since you probably didn't, in fact, usually touch the genitals or anus (or "female breast").
So I think today's opinion correct, but only with the caveat that whenever we're talking about changing a diaper, we're talking about diapers full of poo. Particularly that yucky, expansive, totally-all-over-the-place (my-God-what-have-you-done-here) baby poo.
With that graphic but important caveat, sure, I fully concur.
I get it. You want to challenge Idaho's radical anti-abortion law on constitutional grounds. Truly: I get the motivation.
But, if only as a practical matter, doing so by filing a lawsuit on behalf of "The Satantic Temple" -- i.e., a church that venerates Satan -- is not the way to go.
Very much so.
The Ninth Circuit dismisses the lawsuit for lack of standing, albeit with a remand to allow the plaintiff to amend the complaint to be more specific about a particular member of the church if it wishes.
But please listen. If you want to really bring the lawsuit, just bring it on behalf of the (anonymous) member herself.
Not The Satanic Temple.
I mean, I'm not a professional public relations flack, but come on. This one's fairly obvious.
I'm surprised that the Court wasn't able to get Justices Corrigan and Jenkins on board for this one.
The majority opinion goes out of its way to strike a middle ground. The issue is whether the Federal Arbitration Act preempts Section 1281.98 of the CCP, which provides that defendants in employment and consumer cases waive their right to arbitrate if they don't timely pay the arbitration fees that are due. The majority holds that it's not preempted, but simultaneously limits the statute to cases in which the failure to pay arbitration fees was wilful, grossly negligent, or fraudulent. This overrules a slew of Court of Appeal cases holding that the statute means what is says and that even accidental failures to timely pay arbitration fees results in a waiver of the right to arbitrate.
Given the language -- and, I believe, the intent -- of Section 1281.98, there's a strong argument that those Court of Appeal holdings were correct. Though Justice Liu's majority opinion does a decent job of making the contrary argument. (Which, of course, is now the law.)
Regardless, I would have thought that substantially narrowing the scope of Section 1281.98 would have been enough to get everyone on board for the anti-preemption holding. Apparently not. Justices Corrigan and Jenkins still believe that Section 1281.98 is preempted. So be it.
Analyzing the practical realities more deeply, maybe narrowing the reach of Section 1281.98 was (also?) an attempt to insulate the opinion from reversal by the United States Supreme Court. We'll see how that plays out in the end as well.
In any event, for now, the rule is a lot more favorable to nonpaying arbitration defendants than it was 24 hours ago. Section 1281.98 is going to apply in a ton fewer cases going forward.
I have always thought that California's mental health pretrial diversion statute gave potential criminals a fair degree of incentive to get someone to diagnose them with a mental disorder prior to committing a wide variety of common crimes. Today, the Court of Appeal holds that no advance planning is required: that as long as the diagnosis is within five years of the motion for pretrial diversion, the statute's satisfied, even if the diagnosis comes long after the actual crime.
Which is nice.
Now, it's still in the court's discretion, and there are some caveats. But this seems like a fairly substantial benefit to criminal defendants.
Many of whom, I suspect, could easily -- easily -- be diagnosed with a mental disorder. Even from a neutral physician, and even more so from a physician who's, shall we say, a bit more of a paid advocate.
Justices on the United States Supreme Court are -- as you know -- increasingly fractious. Dissents are often vitriolic, majority opinions often respond in dismissive (or derisive) terms, etc. It's a very polarized institution, and the opinions amply reflect that fact.
By contrast, California Supreme Court opinions are often unanimous. And even when they aren't, they're often like this one today.
The question presented was when exactly the Indian Child Welfare Act of 1978 required county welfare department to ask extended family members about whether the child might be a potential Indian child. Some California appellate courts had held that inquiry duty existed whenever the child was placed in temporary custody, whereas others had held that this duty arose only when the child was removed from custody without a warrant. So the California Supreme Court granted review to resolve the conflict.
After the Court granted review, however, the California Legislature passed a statue that provided that this duty existed whenever the child was placed in custody, regardless of whether there was a warrant. So that resolved the issue, at least going forward.
So the question then became limited to cases arising before the passage of the statute. Which side of the appellate split was right for those, since they were governed by the then-existing statute.
The majority concluded that the same rule governed both cases: that the old statute imposed the same duty (albeit in somewhat less clear terms) than the new statute. And in so holding, Justice Jenkins' majority opinion cited a prior California Supreme Court case that noted that sometimes, a subsequent statutory amendment might give insight into the Legislature's intent regarding the prior statute. Justice Jenkins explained that the majority didn't have to rely on that principle here, since they thought the prior statute was clear enough on its own terms, but note that, hey, for whatever it works, that concept points the same way here.
Justice Liu, joined by Justice Kruger, concurred, and agreed with everything the majority said, including its result, but didn't think that it made sense to rely on the Legislature's subsequent statutory enactment to figure out the meaning of the prior statute. Justice Liu noted -- correctly -- that the majority opinion didn't actually rely on that principle here, so the two sides basically completely agreed on everything, but the concurring justices just wanted to make clear that, as a general principle, they didn't agree with the basic preexisting principle that future statutes may give insight into the meaning of older ones.
That's a difference, of course. But such a minor one in the scheme of things, and articulated on both sides with restraint and respect.
Something you rarely see these days in the federal Supreme Court.
I always appreciate getting back from a family vacation and seeing a published opinion that helpfully summarizes for the reader its basic holding at the outset. You usually get these from particular justices on the Court of Appeal. But today, it's Chief Justice Guerrero who does it. Here's how she starts her opinion:
"We granted review in this matter to decide whether the statute of limitations for medical professional negligence claims within the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5)1 applies to an action for negligence brought by the injured driver of a vehicle rear-ended by an ambulance transporting a patient. We hold that MICRA’s statute of limitations does not apply under these circumstances.
Our holding follows from principles articulated in our previous decisions concerning the scope of MICRA’s statute of limitations, as well as the general rule that the applicable limitations period depends on the nature of the right being sued upon. Where, as here, a plaintiff sues a health care provider for breach of a duty owed to the public generally, as opposed to a violation of professional obligations owed to patients, the two-year statute of limitations for general negligence claims (§ 335.1) applies. This conclusion is supported by MICRA’s text, purpose, and legislative history, as well as relevant public policy considerations.
Because the Court of Appeal concluded that the MICRA statute of limitations applies here, we reverse its judgment and remand for proceedings consistent with this opinion."
The remaining 27 pages of the opinion fill in the details, and are important. But it's great to know at the outset where we're ending up.
It's not news to me to discover that I'm not hip. Indeed, it's fairly self-evident.
As a non-hipster, until today, I definitely did not know about the Netflix animated series, Q-Force, which is "about a group of underappreciated queer spies who must save the planet from various dangers." Each of the characters in the series is apparently based on a real person, and one of those real people -- a drag queen in West Hollywood -- later sued for trademark infringement.
The Ninth Circuit opinion that resolves this appeal contains tons of details about the series and some of the underlying real people. Plus screenshots. Plus pictures of the real people.
So I'm hipper today than I was yesterday.
But definitely still not hip. At all.
Given the multiple brutal rapes and murders (that we know of), it's understandably difficult to want Mr. Choyce to continue to live.
Not surprisingly, the California Supreme Court unanimously affirms his death sentence.
It doesn't even take 52 full pages. That's fairly short for a death penalty opinion.
Okay, Baker & McKenzie. You successfully defeated appellee's motion to dismiss your appeal, with the Court of Appeal holding that since the email from the Clerk didn't contain a signed proof of service, the 180-day period for your appeal, rather than the usual 60-day period, applied.
Though were those extra days really worth the risk?
Two points. Very quickly. Only the first is about the opinion itself. And neither, quite frankly, is critical (or perhaps even important).
The core question is whether the evidence suggested that Mr. Lara was sufficiently disabled such that the regional center for the developmentally disabled was required to evaluate him. The Court of Appeal holds that he was.
In the middle of the opinion, Justice Snauffer says:
"Dr. Longwith also administered the Competence Assessment for Standing Trial (CAST-MR), which is designed to assess competency to stand trial in individuals with intellectual disability. This assessment consisted of 50 questions in three sections. The first section tests the defendant’s understanding of basic legal terms, the second tests their ability to assist in their own defense, and the third section involves open-ended questions about the defendant’s specific case. “The Mean cut-off Raw Scores for persons who are intellectually disabled and competent to stand trial are:” 18.3 for the first section, 10.7 for the second, and 8.0 for the third. “The mean total score for MR-Competency is 37.0.” Lara’s raw scores on the three sections, respectively, were 17, 10, and 7, for a total raw score of 34. . . . Dr. Longwith’s report . . . showed scores below the competence cutoff on all three parts of the CAST-MR." (emphasis added)
I'm genuinely confused. Are those really the mean cutoff scores for persons who are "intellectual disabled and competent to stand trial?" So if you get a 18.3, that means you're probably competent? Because that's not what the rest of the opinion seems to suggest. Are we sure that's not the mean scores for people who are incompetent?
Plus, isn't it inapt, in either event, to talk about "mean" scores? That's not really the test, is it? Say, for example, you've got five defendants, all of whom are competent. One's a genius (150 IQ), one's smart (120), two are normal (100), and one's a bit slow (80). The mean IQ of the "competent" group is 110. But that doesn't equate to a "cutoff" for competence at 110; i.e., that people below 110 are incompetent. It's a mean, not a cutoff.
It works the other way too. Say you've got five people who are disabled and incompetent. One's very slow (70 IQ), one's severely disabled (40 IQ), and three are so disabled that they're virtually comatose (5 IQ). The "mean" of those who are disabled is 25. But that doesn't mean -- at all -- that the "cutoff" for being incompetent is 25.
I would think that the only appropriate use of means -- if one exists -- would be as a one-way rachet. So, for example, in our hypothetical, if you were OVER 110 (the "competence" mean), you were probably competent. Similarly, if you were UNDER 25 -- the incompetence mean -- you were likely incompetent. That leaves the largest group, those with IQs between 25 to 110, as indeterminate; the means don't help there.
So the only way I see the "mean" in today's opinion making sense is if the mean cutoff score of 18.3 was for the people who are not competent to stand trial (rather than "competent"). Then, if you're lower than 18.3 (like Lara), we presume you're incompetent. Even though a score above that same mean does not mean that you're presumptively competent.
Anyway, I just wonder if there should actually be at least two more characters ("in") as part of that particular sentence.
Second, and very parenthetically, I noticed that the appointed defense counsel for Mr. Lara, in this first-degree-murder-sentenced-to-25-years-to-life dispute, was a lawyer who's admitted to the California bar but who currently writes appellate briefs from her home in Bath, New York. I'd never heard of that place, so looked it up. Rural. Very green. Village has a population of a little over 5,000. And where you can get a very nice looking 3800+ square foot home for under $400,000.
Nicely done. California salary with east coast living (and costs).
For California state court civil litigators, this might be the most important Court of Appeal decision to come out this year. Despite the fact that it will probably fly substantially under the radar.
Moreover, were I to have my druthers, I would probably ask the California Supreme Court to depublish it. If, as is unfortunately the case, the California Supreme Court hadn't already decided to publish it (at the request of the Court of Appeal itself).
The opinion is all about the motion reservation system that exists in state court. As you likely know, in many of the big counties, if you want to file a motion, you have to reserve a motion date -- typically, in an online reservation system. It lists the available dates, and you pick one and reserve it. That way, the state court judge isn't overwhelmed by too many motions on one date (or not enough on another).
That system has its problems, of course. You often can't get the date you want, and sometimes, the earliest available date is months away. That stinks, but it is what it is.
Predictably, this leads to the possibility of "hoarding" reservation dates: to reserve dates that you don't intend on using just so they're available. To solve this problem, most counties require that after you reserve a particular date, you file the underlying motion some specified period of time thereafter. In some counties, it's three days; in others, it's ten. Regardless, if you don't file the motion within the relevant time period, you lose your hearing date.
That's the way it works.
In this case, on November 14, 2024, the defendant reserved a hearing date of April 1, 2025 to file a motion for summary judgment. (Ironically, April Fool's Day.) That was no problem. The hearing date was months after the MSJ motion would be filed, so complied with the (now) 81-day notice requirement of CCP 437c. The hearing date was also 30 days before trial (though barely so, since the trial was scheduled for May 2), so complied with 437c in that regard as well.
So far, so good.
In Riverside County, you've got ten days after reserving your hearing date to file the underlying motion. So if defendant had filed its motion anytime before November 24, 2024, everything would have been fine.
But it didn't. Instead, it waited to file its MSJ motion until January 10, 2025, which was 81 days before the hearing date.
That violated the ten day rule. So, three days later, the defendant received notice that its MSJ papers were bounced because it lost its hearing date by filing the motion a month and a half late. Defendant moved ex parte to get a new date on shortened notice, since at that point, no available date complied with the code, but the trial court denied the request. So defendant never got to file its MSJ. (Actually, defendant subsequently reserved a hearing date of April 29, which was three days before the trial, and the trial court heard the motion, but denied it, presumably on procedural grounds given the 30-day rule of CCP 437c.)
Defendant appeals, and argued that it was improperly denied its right to file an MSJ under CCP 437c.
The Court of Appeal agreed, and reversed. Justice Miller's very brief (seven page) opinion holds that since the defendant's MSJ motion complied with the statutory deadlines in CCP 437c, they were entitled to have the motion heard, notwithstanding the ten-day reservation requirement in Local Rule 3310.
To be honest, I'm sympathetic with the result. Which is why I wouldn't grant review of this particular opinion and reverse on the merits. It's a big deal to not have your MSJ heard. And the filing here was in plenty of time -- 80+ days before the hearing -- for the plaintiff to prepare an opposition, and honestly, it was fairly mean (or at least super strict) for the trial court to deny the ex parte request on January 22 to have the motion heard on April 1 notwithstanding their failure to file the motion back in November. The plaintiff still had plenty of notice. Personally, I would have granted that request. (I would have probably made defendant's counsel feel very bad for violating the Local Rule, and might have even conditioned the grant of the ex parte on the payment of some sanctions, but I'd have nonetheless let the MSJ be heard prior to the commencement of the trial. It's an important motion, and there's value in getting rid of a lengthy trial, alongside its associated expense and burden, if there's indeed no genuine issue of material fact.)
So, okay, I would be happy to call this a one-off abuse of discretion given the lengthy notice here, with an express caveat that counsel is nonetheless expected to comply with the local reservation rules and in an appropriate case, might well lose a hearing date if they fail to comply.
But that's not what the Court of Appeal does here.
Instead, it calls into question the entire validity of the existing hearing date reservation system. Justice Miller says that the decision "should not be construed as a challenge to the validity of Local Rule 3310," but its reasoning clearly does conflict with those provisions. The Court of Appeal's holding is based on the theory that because the defendant's motion complied with the statutory time limits of 437c, the court was obliged to hear it, regardless of the local rules. That means that anyone -- anyone -- can similarly ignore those rules. As long as I (1) reserve a court date, (2) file my MSJ 81+ days before the hearing, and (3) that hearing date is at least 30 days before trial, under the Court of Appeal's holding, the court is required to hear it. Regardless of whether or not I complied with the ten- (or three-, or whatever) reservation date requirement.
So why should I even bother to comply? Why give the other side extra weeks (or, months) of notice by filing my MSJ early? Just file it on the last possible statutory (81+) date. The trial court's got to hear it.
Seems to me like that makes the relevant local rules meaningless, or (at a minimum) utterly ineffective, at least as applied to MSJs.
Plus, the Court of Appeal's reasoning doesn't just apply to MSJs, in my view. CCP 437c nowhere says that the trial court has to hear an MSJ that's filed with 81+ days notice and 30 days before trial. It just sets minimums. That's no different than CCP 1005, which does a virtually identical thing (albeit with different deadlines) for regular motions. If you've got a right to have an MSJ heard even if you violate local rules, why don't you have the same right for other motions as well? The underlying statutory language is pretty much the same, after all. And, yes, MSJs are super important, but so are tons of non-MSJ motions; i.e., preliminary injunctions, motions to dismiss, etc. If the Court of Appeal's theory is that the statutory dictates trump the local reservation rules, then it seems like that's equally true for CCP 1005 motions as it is for motions under 437c. Which means, again, that the local reservation rules can be essentially ignored.
Look, I'm not a huge fan of the reservation rules. They sometimes prevent parties from filing motions that they want to file, and nearly always result in motions being heard far later than necessary (and with unnecessary excess notice to the other side). I suspect that we could easily tinker with that system to make it more efficient, albeit at some cost to trial courts who would occasionally be burdened with more motions on a given day than they would otherwise feel like handling. (Even then, in that setting, trial courts would always have discretion to occasionally continue motions on their own initiative; this seems to me a preferable way of doing things, though I readily concede that's easy for me, as a non-judge, to say.)
But just because I'm not a fan of the existing system doesn't mean I want local rules like these to be entirely preempted on the theory that the statutory dictates are all that matter. Because I'm not sure that's what the Legislature actually intended, or that it's what the statute's words actually say. And I definitely don't like a system where the most ethical lawyers play by the rules and faithfully follow the reservation system, whereas others game the thing and ignore those rules given the Court of Appeal's opinion.
So, like I said, I'm fine with the result here. I'm totally okay letting the defendant here have his day in court.
I just don't like the underlying theory (or rule).
That's why I wish this one had remained unpublished.