U.S. v. Ramirez (9th Cir. - April 18, 2024)

I'm fairly confident that this is all about pretext. But given that the Supreme Court is fine with allowing pretextual traffic stops, my sense is that the police officers here did an admirable job of keeping things calm and respectful. As, I might add, did the defendant.

Here's how the traffic stop went down:

"In July 2020, Officers Dorin Buchanan and Patrick Marshal pulled over Victor Ramirez after witnessing him speed in a residential neighborhood, fail to stop at a stop sign, and not use a turn signal. Before pulling Ramirez over, one of the officers recognized him as a gang member based on an earlier encounter.

After Ramirez stopped his car, Officer Buchanan approached and immediately asked: “What’s up my man? You on probation or parole?” Ramirez answered, “Parole.” Officer Buchanan then asked, “For what?” and Ramirez responded, “For a firearm.”

Officer Buchanan followed up with a few more questions, including when he last checked in with his parole officer, where he lived, whose car he was driving, and what he was doing in the area. During this exchange, Officer Buchanan could see that Ramirez had several gang-related tattoos. And based on those tattoos, Officer Buchanan claimed to know that Ramirez was in an area populated by rival gang members. Officer Buchanan testified that it would be “uncommon” for a rival gang member to be in the area “without a firearm.”

Officer Buchanan instructed Ramirez to turn off the car. He then asked, “You don’t got to reach for it, but do you have a driver’s license?” Ramirez stated he did but that it was not with him. Next, Officer Buchanan asked Ramirez to put his right hand on the back of his head and unbuckle his safety belt with his left hand.

While Ramirez’s right hand was on his head and his left hand was hanging out the car window, Officer Buchanan asked Ramirez if he had a “strap” on him. Ramirez answered, “To be honest with you, I do.” Officer Buchanan responded, “It is, what it is. A man like you is not going to drive through that neighborhood without a strap, you feel me?” Ramirez then informed Officer Buchanan that the gun was in the glove compartment of the car.

Once Ramirez was out of the car, the officers retrieved a loaded 9mm semiautomatic pistol from the glove compartment. Officers also checked the computer system in their patrol car and confirmed that Ramirez was on parole. A federal grand jury indicted Ramirez for possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1)."

I might add that, in reading the briefs, there were additional details of their interactions that were fully consistent with the underlying conversational tone; e.g., the officer saying "Do me a favor bro, put your right hand on the back of your head for me dude, [and] with your left hand, reach across and take off your seatbelt okay? Thank you, bro. Keep that right hand on the back of your head.”

Bro code, apparently. But well played.

Kuigoua v. Dept. of Veterans Affairs (Cal. Ct. App. - April 17, 2024)

I'm not exactly sure why Justice Wiley decided to publish this opinion, since it seems fairly clearly to make no new law and merely holds -- consistent with legions of precedent -- that in employment cases, in which you have to exhaust your administrative remedies first before you can sue, it's not okay to list one set of facts in your administrative petition and an entirely different set of facts in your subsequent lawsuit (e.g., claims for sex discrimination at one location in the administrative petition but claims of sexual harassment at a different location in the lawsuit). Can't do that. Summary judgment.

Granted, there are some new fancy words in the opinion that aren't usually used in your run-of-the-mill employment opinions (e.g., "oppression," "scotched," "conciliate" and the like), plus a new analogy that might perhaps help explain things to some people ("Kuigoua loses this appeal because he changed horses in the middle of the stream. His agency complaint was one animal. On the far bank, however, his lawsuit emerged from the stream a different creature.). But otherwise, it's just a typical application of a set group of established legal principles to the particular facts at issue here.

Not that I particularly care if an author decides to publish an opinion that seems fairly clearly to meet none of the nine alternative standards for publication set forth in Rule 8.1105(c). Maybe a couple of trees take a hit, but otherwise, no real harm done.

Just somewhat unusual.

City of Santa Cruz v. Superior Court (Cal. Ct. App. - April 16, 2024)

Two thoughts sprung to my mind when I read this opinion:

(1) What an incredible waste of taxpayer money when a county (here, Santa Cruz County) sues a city (here, the City of Santa Cruz) over whether the city or county is responsible for a public road (here, Capitola Road) that allegedly got undermined by drainage pipes and needed to be repaired. It's a nine-count complaint (!) for $1.2 million in which the County is suing the City for (1) dangerous condition of public property, (2) trespass, (3) nuisance, (4) waste, (5) indemnity and contribution, (6) removal of lateral and “subadjacent” (sic) support, (7) declaratory relief, (8) account stated, and (9) goods and services rendered."

Taxpayers funding lawyers on one side and taxpayers funding on the other side, to be decided by courts funded by taxpayers, including but not limited to the present appeal. The parties can't work this thing out cooperatively? Seriously? Particularly in a lawsuit over a $1.2 million, which is an incredibly small figure in the governmental scheme of things?

(2) What a stupid rule that when a county sues a city, the city's allowed to create its own rule that requires a claim to be initially presented by the country to the city before a lawsuit is filed. Municipal claims rules are likely stupid in their own right -- the claims pretty much always get denied, and it's just another way to make lawsuits against a municipality more difficult and potentially enable a jurisdictional defense even if there's actual liability -- but those rules are especially silly when they apply to claims made by another governmental entity. Who cares if the county just files in court first? It's not like there's a serious concern that there will be too many frivolous intergovernmental lawsuits. Counties should just be able to sue cities if they want. (But should think seriously before doing so -- see Point No. 1.)

Regardless, that's the law.

Perez v. City of Fresno (9th Cir. - April 15, 2024)

Judges Forrest and Thomas disagree on whether the law is "clearly established" that it's not okay for police officers to use continuous force (e.g., by kneeling on someone's back) to someone who's on the ground and handcuffed, particularly when (as here) he is telling the officer that he's unable to breathe.

But can we all at least agree that there are a disturbing number of cases, both in the Ninth Circuit and elsewhere, involving that pretty much identical fact pattern? (FWIW, Judge Thomas' dissent quotes a prior Ninth Circuit opinion that says "The officers—indeed, any reasonable person—should have known that squeezing the breath from a compliant, prone, and handcuffed individual despite his pleas for air involves a degree of force that is greater than reasonable," and says "Between 2003 and 2017, six of our sister circuits reached a similar conclusion concerning use of prone compression on a subject who has been restrained." We all could likely add additional cases that didn't result in opinions in the Court of Appeals.)

At a minimum, we can all at least hope that the number of these cases diminishes in the future, right?

Surely there's got to be at least some common ground.

P.S. - Hat tip to 11-year old Carli, who left us this morning for Dog Heaven. Godspeed.

U.S. v. Medina-Lopez (9th Cir. - April 12, 2023)

That darn Westlaw. Always messing up circuit precedent by placing an unjustified red flag on cases that were not, in fact, overruled.

So sayeth Judge Graber. (Fixing the problem here.)

People v. Lewis (Cal. Ct. App. - April 10, 2024)

Michael Lewis, age 37, has a lengthy rap sheet, and his latest offense was a first-degree murder conviction (he shot the victim half a dozen times at close range) in August 2022 for which he received a sentence of 75 years to life. During previous periods of incarceration, "Lewis had numerous rules violations, including for fighting, participating in a riot, failing to respond to notices, delaying a peace officer, disobeying orders, battery on a peace officer, and battery with a deadly weapon."

Not someone you'd facially be likely to let out of prison anytime soon, right?

But Mr. Lewis was also recently diagnosed with ALS, and according to the doctors, his particular case is "pretty rapidly progressive.” At the time of his compassionate release hearing in August 2023, the doctor testified that "Lewis is dependent on medical staff to 'do everything for him.' Lewis requires assistance in eating, showering, and using the bathroom. He is able to walk short distances but experiences some weakness in his legs. Because of the lost functionality of his arms, Lewis is 'very unsteady' walking, so he occasionally falls. He fell the week before the hearing. Staff transport Lewis to appointments by wheelchair. Given the rapid progressivity of the disease and Lewis’s weakness, Dr. DiTomas opined: '[T]here’s just no way [Lewis] could cause harm to somebody. You just have to push him a little bit, and he’s going to fall over. There’s no way for him to protect himself.'” The doctor also testified that Mr. Lewis was about to fully lose his ability to speak in about a month, and “would not be surprised if he died in the next six months. And [she] would be surprised if he lived a year." Finally, "Dr. DiTomas observed that during the couple of months that Lewis had been in her unit he had 'been incredibly respectful, appreciative of care,' and the staff supported him."

The trial court denied compassionate release on the grounds that Mr. Lewis was still a serious danger to the community. The Court of Appeal reverses and orders him immediately released.

The original opinion was unpublished, and rendered on January 3, 2024. It was published today. It'd be interesting to find out what Mr. Lewis' condition is today -- I tried a little to find out, but couldn't discover anything online. Sixth months after his hearing in August 2023 was close to the same time the opinion was issued, so I suspect that he lived at least that long. It's now been almost eight months since the hearing, and the doctor said she'd be "surprised" if he lived a year. Presumably he's still alive, and since I can't find any reports of any crimes he's committed, I presume the Court of Appeal is right -- thus far, anyway -- that he's at least not an obvious recidivist at this point.

Lots of people, I suspect, would think that spending only a year in prison for first-degree murder was way less than necessary. Others, I believe, would understand and agree with letting this particular person out to die on his own.

Your call?

Casola v. Dexcom (9th Cir. - April 10, 2024)

Everything that Judge Callahan says and does here is exactly right. And -- full disclosure -- I say that even though I have a good friend who is the COO of the losing party.

It's an appeal that's necessitated by a messed-up contemporary filing system in state court -- one that wasn't anticipated by the people who crafted the old-school removal rules during the pre-electronic filing era -- as applied to a common trick that sophisticated parties routinely employ to game the system in a way that Congress didn't anticipate when it, too, crafted the removal rules in a pre-electronic era. So it's basically one set of antiquated rules as applied to another set of antiquated rules; rules that both made sense in the old days, but that lead to abuse nowadays.

Here are the basic underlying rules:

(1) In the old days, you "filed" a lawsuit when you physically handed it to the Clerk. But now, most cases are (and must be) e-filed, typically using service providers, and the case isn't technically "filed" until after the Clerk "processes" the complaint and officially "files" it, which may be several days (or even a week) later.

(2) Both now and in the old days, you've got 30 days to remove a lawsuit from state court to federal court. In the old days, we'd know full well when those 30 days started running: from the filing date (i.e., delivery to the Clerk). But what about in the new days? Does it start ticking upon the e-filing date, or only once the complaint is "accepted" by the Clerk and officially "filed"?

(3) In the old days, you pretty much found out about a lawsuit once you got served with it. But in the new days, most sophisticated corporate parties have services that tell them immediately once a lawsuit has been filed against them, even before service, and -- nowadays -- even in advance of the complaint actually being "accepted and filed" by the Clerk (because they have access to the e-filing records). A party can't remove a lawsuit from its home state in a diversity suit, but there's an exception for parties that are not yet served (because we don't want sham unserved parties to prevent removal). In the new days, can you "snap-remove" a lawsuit -- even from your home state, and even when you're the sole defendant -- as long as you find out about the lawsuit quickly and remove it before the plaintiff has had a chance to serve you yet? Moreover, in the very-new days, can you "super-snap-remove" a lawsuit even before it's been "officially filed" by the Clerk?

There are some other additional complexities addressed in Judge Callahan's opinion; e.g., appellate jurisdiction (or lack thereof) over remand orders, as well as timeliness issues. Regardless, in my view, she answers all of them correctly. Or at least all of them that she needs to.

The Ninth Circuit holds that "super-snap" removals aren't proper. You can't remove a lawsuit from state court before it's "officially" filed; i.e., in the period after it's submitted for e-filing but before it's been "accepted" by the Clerk. Such removals aren't effective; they're void. So back to state court you go.

That all seems right to me, for the exact reasons Judge Callahan articulates. She does a great job both discussing the textual provisions here as well as the equities.

Expressly left unresolved, however, is whether "regular" snap-removal is permissible; i.e., removal after the lawsuit is "accepted" (e.g., one minute after the Clerk electronically issues the summons) but before the lawsuit is officially served.

This, in my view, is where textualism fails. Yes, the statute says that you can remove, even from your home state in a diversity case, if the defendant who resides in that state is not yet served. But that leads to abuse, and conflicts with the core purpose of the statute, which was to stop removal in diversity cases when it wasn't needed because the defendant resides there anyway. So, for someone like me, the proper way to resolve cases like that are to interpret the statute consistent with its clear purpose, and to say that you're only an "unserved" party for purpose of that provision if you're unserved because you're basically a sham party added to prevent removal. Which categorically wouldn't be the case where, as here, you're the ONLY defendant, and the only reason you're not yet served is because you removed the case before the plaintiff even had a practical chance to serve you. Problem solved, IMHO, and justice advanced.

But that's not what textualists -- or other circuits -- have done. To society's detriment, I believe.

But that's an issue for another day. For now, at least, "super" snap removal isn't permitted. And, maybe, one of these days we'll stop "regular" snap removal as well.

Or maybe not.

Regardless, in the meantime, take advantage of the rules, and pay attention to what lawsuits (if any) are filed against you. And promptly remove them before you're served.

Just wait until the thing is actually officially "accepted".

P.S. - I also agreed with Judge Callahan's concluding decision to have both sides bear their own costs. That's entirely equitable as well, I think, given the complexity of the underlying issues. Well done.

Weber v. Superior Court (Cal. Ct. App. - April 9, 2024)

Pretty much everyone -- including but not limited to Earl Warren to Stanley Mosk -- thought that California didn't allow one person to run for two different offices at the same election.

But the Court of Appeal decides today that that's wrong; that one person can, indeed, run for multiple offices if s/he so decides. Potentially -- as perhaps likely here -- winning all of them.

Justice Earl admits that this view of the statute might lead to absurd result, including but not limited to the following hypotheticals: "For example, a party candidate could run for every California congressional seat at the same time. Or one very popular candidate could conceivably run for Governor, Lieutenant Governor, Secretary of State, Attorney General, Controller, and Treasurer at the same election, win them all, and then resign from all but the Governor’s office and appoint their friends to other statewide offices.”

But Justice Earl holds that that's an issue for the Legislature, not the courts. The Court of Appeal holds that the existing statute -- Section 8003 -- only bars candidates from running for multiple offices in the same election if they're running as independents, not if they're running (as here) in a primary election. (As for "why the Legislature would have adopted a prohibition on dual candidacy but applied it only to independent candidates,” the Court of Appeal simply responds: "Perhaps it was an oversight, or perhaps the Legislature was simply focused on limitations on the independent nomination process when it enacted section 8003. But if it was an oversight, it is the Legislature’s job to correct it, not ours.")

I seriously hope that someone famous takes up the hypothetical and runs for every single office in California in the next general election: every congressional seat, Governor, every statewide office, etc. And wins.

It'd be a hoot.

The Rock, maybe?

Dilbert v. Newsom (Cal. Ct. App. - April 8, 2024)

Since nothing in the federal or state constitutions expressly requires the governor of California to act on commutation petitions within a set timeframe, it's fairly clear that the governor can take as long as s/he wants on these petitions -- including, essentially, forever.

But to the degree it was unclear before, today's Court of Appeal opinion expressly so holds.

I did learn one thing today, however, that I didn't know previously. Apparently, the California Constitution says that the governor can only grant a pardon or commutation to someone "twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring." (Article V, Section 8).

I'm quite confident that others knew about this quirk in the California pardon scheme, but I didn't. I was more familiar with the federal system, where the president can do whatever s/he wants.

Interesting wrinkle.

People v. Uriostegui (Cal. Ct. App. - April 5, 2024)

I get what Justice Gilbert is saying in his dissent here. I really do. And it's true that the defendant here appears to have been caught on a home video camera entering the home; that he was apprehended by the police near the residence a short time later; and that he matched the description of the person on the video and was caught holding a knife stored in the garage.

So I have no real dispute with the part of Justice Gilbert's concluding paragraph that these facts "show overwhelming evidence of guilt."

But I'm not sure that the next three sentences of his conclusion follow from that premise; e.g., that "All parties in litigation are entitled to a fair trial. This includes the prosecution. The majority’s rote application of section 231.7 defeats this goal."

It's not like the majority's opinion here lets the accused go free. All it does is to entitle the defendant to a new trial in which the prosecution doesn't illegally dismiss a minority juror. If the evidence is indeed so overwhelming, it's extraordinarily likely that he'll again be found guilty and held responsible for what he's done.

This time, from a jury of his peers.

I don't particularly see what's so devastating about that. Does it take a little more effort? Sure.

But it seems worth it for the overall result.

Moreover, maybe the way to stop the duplication of effort would be to not impermissibly strike the minority juror in the first place. Particularly when -- as apparently here -- the evidence against the defendant is indeed so overwhelming.

U.S. v. Hansen (9th Cir. - April 3, 2024)

One of the slightly bad things about having old(er) people around is that they might be stuck in the traditional way of doing things and unjustly resistant to new ideas.

But one of the relatively good things about having old(er) people around is that they might recall things from the past that might potentially be relevant to a current issue.

I say this as someone who's in his late 50's and considers himself somewhat old(er), and although I hope and attempt to avoid the downsides of the first observation, I simultaneously hope and attempt to add value on occasion through the second.

Those were the thoughts that I had on reading this opinion by Judge Gould.

I can't disagree with virtually anything of substance that Judge Gould says. The procedural history of the case is somewhat detailed, but nonetheless relatively straightforward. Back in 2017, Helaman Hansen gets convicted of aiding and abetting unlawful immigration. In 2022, the Ninth Circuit reversed his conviction on these counts because it found the statute unconstitutionally overbroad because it didn't have a specific mens rea requirement. The Ninth Circuit refused to take the case en banc (over some dissent), but last year, the Supreme Court granted certiorari and (over some dissent) narrowed the statute to require a specific mens rea requirement and thus remanded the case back to the Ninth Circuit. 

Now, in 2024, the Ninth Circuit reverses the convictions because the jury instructions in the 2017 trial were inaccurate, since they didn't anticipate -- or accurately reflect -- the Supreme Court's subsequent narrowing of the statute in 2023. So we need a retrial with accurate instructions.

Seems right to me.

With one caveat. (This being the point about the value of "old(er)" people above.)

In footnote 2, Judge Gould says: "Hansen also argues that, in light of the Supreme Court opinion, the evidence was insufficient to support these two convictions, and that this subsection of the statute is void for vagueness or otherwise unconstitutional as applied to him. We do not reach these issues and express no opinion on them."

Which, ordinarily, I'd understand. The Ninth Circuit is reversing Mr. Hansen's convictions on these counts anyway, so why bother deciding the (unnecessary) issue of whether these convictions should also be reversed because the evidence was insufficient. No point, right?

But when I read that footnote, I distinctly recalled writing something back when I was a law clerk some 33 years ago. (My goodness; it's been a third of a century. Maybe I should just say "old" at this point.) A little follow-up research revealed the following quote, which (to be clear) is most definitely not from an opinion on which I worked but which nonetheless accurately states the law as I believed it to be not only at the time, but also now:

"Even though we reverse for error in the Jewell instruction, double jeopardy concerns require us to reach Sanchez-Robles's contention of insufficient evidence. See United States v. McKoy, 771 F.2d 1027, 1215 (9th Cir. 1985). 'Because an appellate reversal of a conviction on the basis of insufficiency has the same effect as a judgment of acquittal, the Double Jeopardy Clause would preclude retrial. Therefore, 'the existence of other grounds for reversal does not avoid the necessity of reviewing the sufficiency of the evidence.' Id. (quoting United States v. Bibbero, 749 F.2d. 581, 586 (9th Cir. 1984)."

United States v. Sanchez-Robles, 927 F.2d 1070, 1076 (9th Cir. 1991).

If the law in the Ninth Circuit now is the same as it was back then -- which it seems like it should be -- doesn't this mean that the panel must, in fact, resolve the insufficiency claim, and thus replace footnote two with a resolution of the merits?

Vasquez v. SaniSure Corp. (Cal. Ct. App. - April 3, 2024)

I'm confident that Justice Baltodano is right here, and it points out an interesting way to avoid arbitration that I hadn't considered before. Yes, when Jazmin Vazquez first started working at SaniSure in July 2019, she signed a ton of papers on that first day -- something with which we're all familiar -- including a broad arbitration agreement that required between her and her employer be submitted to arbitration. Generally, that's binding.

But she left the company in May of 2021. Four months later, though, she decided to come back. At that point, the company didn't need her to sign a whole new set of onboarding documents -- they already had her W-4, her date of birth, etc. The company just stuck with the old ones, which already had the relevant information.

But when Ms. Vazquez later sues for alleged payroll violations during her second stint at the company, she successfully avoids arbitration. Both below and in the Court of Appeal, and rightly so. As the Court of Appeal explained:

"SaniSure failed to show that Vazquez agreed to arbitrate claims arising from that stint of employment. Nor did the company show the existence of an implied agreement to submit claims arising from that second stint to arbitration; the agreement covering Vazquez’s first stint of employment terminated in May 2021, and there was no evidence that the parties intended it to apply thereafter."

True and certain it is. Affirmed.

I nonetheless had an internal reaction to the last clause of that passage: that "there was no evidence that the parties intended [the arbitration agreement] to apply [after her first stint of employment ended]."

That's doctrinally accurate, and correctly resolves the appeal. But I actually think that underlying all this is sometime profoundly artificial -- a slightly fancy word for "fake".

There's no doubt in my mind whatsoever -- zero -- that SaniSure "intended" to make Ms. Vazquez arbitrate all her claims against the company. I'm sure they had every single employee sign arbitration agreements when they first joined, and with Ms. Vazquez, they simply forgot (or weren't told by their attorneys or people in HR) that she technically had to re-sign this agreement for it to be effective. It was actually a unilateral mistake, not the absence of any "evidence" that the company "intended" that Ms. Vazquez be precluded from suing them in court. Of course that's what they wanted and intended.

Somewhat similarly, Ms. Vazquez, in truth, never actually "intended" anything. There were a bunch of papers she had to sign when she started working if she wanted to work there, and she signed them. She probably didn't read them, and even if she did, she wanted the job, so she'd have signed pretty much anything they put in front of her -- at least if it wasn't about giving up her kidneys or something like that. She didn't "intend" anything either; she just wanted a job. She certainly didn't "intend" to require arbitration, even the first time. She just passively agreed to whatever the company required.

It's surely doctrinally accurate to call arbitration agreements "agreements" since both parties signed the underlying documents and we enforce them. But, in truth, importing underlying concepts like "intent" to these things doesn't really reflect reality.

Ms. Vazquez wanted a job, SaniSure wanted to make sure she couldn't sue them in court, and Ms. Vazquez was undeniably willing to strike that deal. Here, due to an internal mistake, SaniSure didn't realize it had to slide another piece of paper in front of Ms. Vazquez -- one that she would surely have signed -- in order to make that happen under our (fake) doctrinal construct that only when that piece of paper is signed can we really know the terms to which the parties intended to agree.

I know here what both sides wanted. We all do. What they "intended" really doesn't matter. What the law requires -- for better or worse -- really isn't about that at all, regardless of how much we pretend.

U.S. v. Sapalasan (9th Cir. - April 1, 2024)

There's no reason why the police have to search your backpack (without a warrant) after they've already released you from the police station. None. Zero.

The Supreme Court has said it's fine for the police to search your backpack after you're arrested as part of an "inventory search" -- that way, they'll know what's in the thing (e.g., nothing dangerous) and you can't say that the police stole your stuff. That's fine. They can't give the thing back to you (since you're in jail) sight unseen, so an inventory search is perhaps justified.

But if they've arrested you and already released you, they can just give the thing back to you. There's zero need to search it -- much less any need to do so without probable cause and without a warrant.

But the Ninth Circuit says it's just fine to search the thing anyway.

I'd have joined Judge Hawkins' dissent.

Medallion Film LLC v. Loeb & Loeb LLP (Cal. Ct. App. - March 28, 2024)

Justice Stratton doesn't exactly pay lavish compliments to Loeb & Loeb -- or its attorneys -- in this opinion.

A guy (Sadlier) enters into an agreement with a company (Medallion Film) to help the company try to get some funding. The guy promises not to use any of the contacts the company gives him, but the company subsequently learns that the guy (allegedly) got some money for someone else from one of the contacts (BlackRock) the company provided. So the company sends an email to the contact (BlackRock) that says:

"Randy hope all is well. We have a fee agreement with Bill Sadle[i]r based upon monies raised from Blackrock thru my introduction to you. What can you do to assist us here in collecting what is due to us. Jesse [Kennedy, of Medallion] will provide a reconciliation. As you know our financial models were provided to you and Blackrock on the P&A. Let us know so we dont have to litigate and can resolve the matter in an amicable fashion. Thx.”

The guy subsequently gets wind of this email, and has his lawyers at Loeb & Loeb write a nastygram back that says: "Aviron has no legal connection to Clarius Capital Group, LLC whatsoever. It is not a successor in interest and there is no common ownership between the two companies. Mr. Sadleir, who signed the referenced agreement on behalf of Clarius Capital Group, is an Aviron employee with no ownership interest in Aviron. Had Mr. Sadleir left Clarius to work at Sony Pictures Entertainment, for example, your claim for payment to you by Sony, had it received funding from BlackRock, would be equally without merit. Any further communication by you to Randy Robertson or anyone else at BlackRock regarding this matter will be considered by Aviron to constitute tortious interference.”

But what the Loeb & Loeb partner said was (allegedly) totally untrue, and Loeb & Loeb (allegedly) knew it because they actually helped Sadleir create the successor company, and also represented that company when it got the cash from BlackRock. Thereafter, once the company discovered the truth behind these (alleged) lies, they sue Loeb & Loeb. Which responds with an anti-SLAPP motion that says that the lawsuit arose out of a protected pre-litigation communication and is absolutely privileged. The trial court agrees and dismisses the lawsuit.

The Court of Appeal reverses. Justice Stratton says that Loeb & Loeb's response was not, in fact, a communication in anticipation of litigation because the plaintiff's email was the opposite of a litigation threat; they were trying to get their piece of the pie cooperatively from a third party, without filing any lawsuit. So the lawsuit doesn't arise out of protected activity, and the anti-SLAPP statute doesn't apply. In the (quite direct) words of Justice Stratton:

"From the first sentence of its appellate brief, Loeb & Loeb repeatedly and hyperbolically describes the email to which Given responded as an explicit threat of litigation conclusively establishing Given’s letter as anticipating litigation. But the actual message to which Given was responding was nothing of the sort. This was not a demand letter or litigation threat, and it was not even directed to Aviron. Rather, plaintiffs reached out to their contact at BlackRock—the person to whom they had introduced Sadleir pursuant to the consulting agreement—and asked for BlackRock’s help in securing the payment to which they thought they were entitled: “What can you do to assist us here in collecting what is due to us[?]” They sought BlackRock’s help so the question of payment could be addressed informally, “so we don[’]t have to litigate and can resolve the matter in an amicable fashion.” The email demonstrates the plaintiffs just wanted to be paid, and they were appealing to whomever they thought would be influential in persuading Sadleir to pay them without having to resort to litigation. This is the exact opposite of a threat of litigation." (emphasis in original).

Since the anti-SLAPP statute doesn't apply, reversal of the dismissal is required.

And then the opinion then goes on to make it even worse for Loeb & Loeb.

Even though the Court of Appeal has already held in Part I that the anti-SLAPP statute doesn't apply, Justice Stratton then goes on in Part II to unnecessarily -- but dispositively -- reject every single one of Loeb & Loeb's defenses on the merits. ("While our conclusion that the causes of action asserted in the amended complaint arise from conduct that is not protected is determinative of this appeal, we discuss the second prong because even if Loeb & Loeb did carry its burden to make a prima facie showing that the claims alleged in the amended complaint arose from protected activity, the plaintiffs made the requisite showing of merit required by the statute to survive the special motion to strike. This is equally and independently sufficient to demonstrate the anti-SLAPP motion should have been denied.")

In the next pages, the Court of Appeal rejects their litigation privilege defense, their statute of limitations defense, and their reliance defense -- basically, every single defense they have to the entire lawsuit. Moreover, in doing so, Justice Stratton is occasionally less than exceptionally kind. (To take but one example, the Court of Appeal's rejection of the reliance defense begins by saying "In a rather bleak argument, Loeb & Loeb argues plaintiffs cannot prove they justifiably relied on Given’s representations because as a matter of law it was not justifiable to rely on the representations he made as counsel for Aviron.")

The net result of which is that Loeb & Loeb goes from winning the lawsuit below -- and getting their fees paid -- to not only having the dismissal (and fee award) reversed, but also to basically no longer having any chance of getting out of the lawsuit on summary judgment -- and perhaps not even at trial -- either.

That hurts.

My strong sense is that the Court of Appeal didn't like (at all) the way Loeb & Loeb handled this thing, either in the underlying dispute or on appeal. It's not surprising that the justices would not like a lawyer who (allegedly) deliberately lied in an email. But I also suspect they didn't particularly appreciate the one of Loeb & Loeb's response to the plaintiff's email to BlackRock either. (Here's how Justice Stratton characterizes that response: "Givens' bombastic and disproportionate response to an email not even directed to his client is not a communication made in good faith and serious contemplation of litigation but an attempt to dissuade the plaintiffs from making any further inquiries.")

Sometimes, atmospherics matter.

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

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

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

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

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

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

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

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

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

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

Plus there's insufficient evidence of scienter either.

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

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

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

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

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

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

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

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

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

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

Yet the panel here apparently does neither.

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

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

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

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

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

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

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

No problem there, either.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Otherwise, spot on.

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

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

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

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

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

(A) Father.

(B) Mother.

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

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

Have your answer?

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

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

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

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

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

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

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

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

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

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

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

But maybe that's just me.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

So let your freak flag fly, as they say.

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

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

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

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

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

Seems reasonable.

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

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

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

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

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

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

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

Tough questions all around.

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

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

Fair enough.

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

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

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

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

Darn good point.

But that left me with one final thought.

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

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

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

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

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

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

Those are my thoughts for the day. 

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

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

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

Why write a three-judge concurrence?

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

All great thoughts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Still, it definitely livened things up.

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

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

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

It was nonetheless funny.

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

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

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

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

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

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

Should Lizzo get to keep the $5 million?

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

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

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

Sure enough.

But not entirely just, either.

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

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

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

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

Spot on right.

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

You could see that happening to anyone.

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

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

Here's proof that we live in California.

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

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

With one important caveat.

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

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

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

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

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

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

But here's where we're different.

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

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

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

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

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

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

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

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

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

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

Berlanga v. USF (Cal. Ct. App. - Feb. 29, 2024)

Sorry, USF students. You're not getting a partial refund for the fact that "college" was online during COVID. You lost your class action, and the Court of Appeal affirmed.

You could perhaps see why the generalized statements that USF made here didn't effectively promise that college would be in person.

Though if USF was nice, it might have given a little bit of a voluntary tuition rebate.

Because online college, respectfully, was very -- very -- much not the same as being there in person.

People v. Hollywood (Cal. Ct. App. - Feb. 28, 2024)

Justice Yegan begins this afternoon's opinion in a fairly dramatic fashion, saying:

"“The fabric of the law will stretch only so far before it will unravel.” (People v. Martin (2018) 26 Cal.App.5th 825, 828.) Appellant seeks to stretch the newly enacted reduced murder penalties to his case. It just will not stretch and the fabric unravels. Leniency for a person who orders his cohorts to murder a 15-year-old child with a machine gun? The child is dead and our answer is, no."

One reason he might write in such a style is due to the nature of the crime, as it's not surprising that the cold-blooded murder of a teenager might get one's blood boiling. Another reason may perhaps be because it's a high profile case, and involves a petition filed by Jesse James Hollywood and the underlying murder subsequently made into the film Alpha Dog. So maybe Justice Yegan thinks -- entirely accurately -- that this opinion will be read (or quoted) more than the run-of-the-mill appellate opinion, so wants to add some spice.

It's not my cup of tea, honestly. Yeah, it's a brutal crime, and we're rightly horrified by it. But I'm fairly confident that the whole "Rule of Law" thing -- a not insignificant principle -- means that you follow the rule of law regardless of your emotional reaction to the underlying offense. So starting off an opinion by saying that you're not going to be "lenient" because a child is dead is not really how I'd frame the legal analysis of a case by the Court of Appeal. It sends a message of retribution rather than a dispassionate application of legal principles.

It's not that Justice Yegan doesn't have a point. He is confident -- from the movie or otherwise -- that the petitioner here doesn't deserve relief under the Legislature's newly-enacted resentencing provisions. And I'm pretty darn confident that he's right (though I haven't seen the movie or read the underlying opinions). It seems like Mr. Hollywood did, in fact, have an intent to kill, which, if true, negates relief under the statute.

Here's the problem, though: Mr. Hollywood says that he didn't have that intent, and files a petition that so avers.

That's probably untrue. We have a way of finding those things out: under the resentencing scheme, it's called an "evidentiary hearing." The issue on appeal is whether he's entitled to one.

Justice Yegan says that Mr. Hollywood's a liar, and we already know the truth, so we don't have to provide him with a hearing. In another colloquial passage at the end of the opinion, he says: "Checking a box on a printed form saying the petitioner could not presently be convicted of murder, given the record of conviction, is ridiculous."

Okay. I bet that's true. I bet the affirmation on the petition is wrong. Because, among other things, the trial judge below was the one who decided the petition for resentencing, and I'm confident that he very distinctly recalls the facts of this extraordinarily high profile case.

Nonetheless, to me, this smacks of "We all know you're guilty, so let's just dispense with the trial." We have procedures for things like this. At stage one, the petitioner says he's eligible for relief. At this stage the only thing we look at is the record of conviction to see if it categorically precludes relief. We don't engage in factfinding. That's for stage two. Kinda the same way we have an indictment and then let the case go to trial if the indictment is sufficient. We don't skip that second part just because the evidence of the crime is overwhelming.

Justice Cody makes some of these points -- more subtly -- in her concurrence. She says, seemingly accurately, that the petition here can be denied in a straightforward fashion, because the record of conviction for aiding and abetting murder requires an intent to kill. Which makes even more unnecessary than usual the holding here that trial judges are allowed to engage in factfinding at the initial petition stage, since you can achieve the same result without recourse to a "special exception" involving dead teenagers in high-profile cases.

It's quite possible I'm old fashioned here. I'm not a big "bloodlust" type, particularly in the Court of Appeal. I'm quite fine with Mr. Hollywood's resentencing petition being denied. But I'm also entirely okay with giving him a hearing if one's required, regardless of his underling offense. That, to me, is what it means to be committed to the rule of law.

Which, again, is No Small Thing.

People v. Pittman (Cal. Ct. App. - Feb. 27, 2024)

The opinion in this case is about restitution, and seems right, but that's not what caught my eye. Rather, it's something very briefly mentioned in the opinion -- something easily overlooked but which I thought was both fairly rare and merits at least brief reference.

The underlying offense was the daytime burglary of a home in San Francisco. The burglars stole some cash and jewelry and basically anything else they could find of value.

There was video footage -- probably from a Ring camera. That's pretty damning. Hat tip: Probably wear a mask or something if you're going to burglarize a home with a camera.

Hat tip #2: Don't commit a burglary when you're on parole, like one of the burglars here. Extra time added to your sentence, etc.

Final hat tip. The one that really piqued my interest. Don't commit a burglary when you're on parole and wearing a GPS ankle monitor that proves you were at the burgled residence at the time of the burglary.

I mean, come on. You've got an ankle monitor, dude. Try not to commit crimes while wearing the thing.

That's just common sense.

TriCoast Builders v. Fonnegra (Cal. Supreme Ct. - Feb. 26, 2024)

It's only $150. Go ahead and post jury fees yourself. Even if the other side's already requested a jury.

Yes, it's nonrefundable. But, in the scheme of things, it's a pittance.

Otherwise, this might well happen to you too.

Nothing stops the other side -- the side that demanded a jury and posting the fees -- from withdrawing that demand on the first day of trial. If that happens, you've prepped for months for a jury trial, but at the last moment, you have to retool everything for a bench trial. Exhibits, opening statements, etc. Plus, you've already waived your own right to a jury trial by not posting fees, so you no longer have that right.

Sure, you can ask for a discretionary waiver from the trial court. But don't be surprised if, as here, the trial court denies your request. Bench trials are so much easier. Plus, then the trial judge gets to make sure that the case comes out the way s/he wants.

One more thing. If, perchance, the trial court denies your request for a discretionary waiver, file a writ. Do not, under any circumstances, do what the party did here, which was to elect against filing a writ, wait to see if they win at the bench trial anyway, and if they lose, then file an appeal asserting an erroneous denial of your request for a discretionary waiver.

The California Supreme Court holds that, at that point, you've got to affirmatively show prejudice -- i.e., that the result would have been different if the case was resolved by a jury instead of a judge. A showing that is, quite literally, impossible.

So, to reiterate:

Spend the $150.

I'll potentially save you a world of hurt.

City of Lancaster v. Netflix (Cal. Ct. App. - Feb. 22, 2024)

I'm most assuredly not in a position to disagree with Justice Lavin in this one, as literally everything I know about the "Digital Infrastructure and Video Competition Act of 2006 (Pub. Util. Code, § 5810 et seq.)" is contained in today's opinion. Moreover, everything that he said in his opinion sounded entirely plausible, so I can't really say with any confidence that individual cities should have the ability to sue video providers for not getting a state franchise and paying the applicable fees. (The Court of Appeal holds they can't.)

The one thing I can say, however, is that it seems to me like the state Public Utilities Commission should darn sure take a position on this stuff. If cable companies have to pay for using public right of ways for their transmission stuff (e.g., their cables), then it only makes sense (to me) that streaming services like Netflix and the like should have to pay as well. It sounds to me -- again, knowing virtually nothing -- like the streaming services don't pay but cable companies do, despite the fact that both of them use fiber optic cables (or non-fiber optic cables) running under our streets, etc. Doesn't seem fair or equitable. If both use public resources, both should pay.

So it's entirely possible that the Court of Appeal is correct that the statute only says that cities can sue if a franchisee doesn't pay, whereas here, Netflix isn't a franchisee in the first place, so can't be sued even if it doesn't pay.

But the PUC can definitely sue. And if the facts are as they appear to be in the opinion, I'm seriously wondering why the PUC hasn't.

But, again, it's entirely possible I'm missing something here.

Which, on rare occasion, happens.