Friday, February 16, 2024

People v. Yeager-Reiman (Cal. Ct. App. - Feb. 16, 2024)

I think I've discovered the next crime I'll commit.

"On April 2, 2018, the California Department of Justice filed a felony complaint charging defendant and others with conspiracy to commit grand theft, identity theft, forgery, making a false and fraudulent claim, and preparing false evidence (§ 182, subd. (a)) (count 1); grand theft of personal property (§ 487, subd. (a)) (count 2); and making false and fraudulent claims (§ 550, subd. (a)(5)) (count 5).

The complaint alleged that in 2011 and 2012, Amit Marshall, the owner, president, and director of the Alliance School of Trucking (Alliance) obtained approval from the California State Approving Agency for Veterans Education for Alliance to provide non-college degree trucking programs to veterans eligible for benefits under the “Post-9/11 GI Bill” (38 U.S.C., Pt. III, Ch. 33). That approval authorized Alliance to receive tuition and other payments from the VA. Marshall and Alliance director Robert Waggoner falsely certified to the VA that they would truthfully report veteran students’ enrollment status and attendance records and maintain current knowledge of VA rules and benefits.

Between October 1, 2011, and April 22, 2015, Marshall, Waggoner, and Alliance employee Aaron Solomona recruited and caused others to recruit eligible veterans to enroll in the approved Alliance trucking programs. Solomona told prospective students that together they could defraud the VA—students would not have to attend classes, but Alliance would report to the VA that they did, and each student would receive between $2,000 and $3,000 per month in benefits. . . .

Between September 1, 2011, and April 22, 2015, Marshall, Waggoner, Solomona, and Sandor Greene created and caused to be created fraudulent student files for the purported students that contained false attendance records, false grades, and false certificates of completion. Through the completion of a VA form, Marshall and Waggoner falsely and fraudulently certified that defendant and/or other veteran students had attended classes at Alliance.

Between December 8, 2011, and April 22, 2015, as a direct result of their fraudulent scheme, Marshall, Waggoner, Solomona, Greene, and Ivanova Jimenez caused the VA to pay Alliance approximately $2,351,658.19 in tuition and fees and approximately $1,957,715.89 in education benefits to veteran students, including defendant, who fraudulently claimed to have attended Alliance trucking programs."

That's a lot of money, no? Seems like a pretty good scam. The school gets millions, the "students" get paid -- both by the feds and the school -- and everyone walks away happy. (Sure, no one actually knows how to drive a truck, but no biggie; they've got the cash.)

Defendant's an alleged participant in this scam, ultimately pleads guilty, and gets sentenced to . . . 

Two days of probation.

With reduction to a misdemeanor if he doesn't do anything wrong for a while thereafter.

Sounds like a pretty good deal for everyone involved. Even if caught.

(Except for taxpayers, of course.)

I'm confident the ringleaders got longer sentences, but still. Not really a huge deterrent to participate in these scams if all you're getting -- if you're even caught -- is two days of probation.

Though I'm sure he's a nice guy.  

Wednesday, February 14, 2024

People v. Paul (Cal. Ct. App. - Feb. 14, 2024)

Absent the invention of a time machine, there's no way to prove or disprove the following hypothesis. I'd nonetheless bet a fair amount of money that five or ten years ago, this case would have come out the other way.

You could easily see how an opinion could be written to say that Mr. Paul wasn't detained at all when the officers first approached him. Something like this:

"The officers approached Mr. Paul's stopped vehicle on foot. They didn't draw their weapons. They didn't block his vehicle from departing, either with their police cruiser or with their bodies. They engaged him in polite conversation, just like anyone else. They never told him he wasn't free to leave. Sure, they shone their flashlights on him, but that was understandable, since it was 9:00 p.m. and dark. No reasonable person could have believed that they were not free to leave the voluntary conversation with the officers. As a result, there was no detention at all, and hence no illegal search."

What I think has relatively recently changed, however, is a more robust understanding of police/civilian interactions, particularly in poorer, minority communities. I doubt that even I would feel entirely free to leave if the police pulled up to my vehicle, shined their lights on me, and started talking to me. But one's willingness to fire up your car and suddenly pull away as the police approach might be even lower if, say, you're a young black man with dreadlocks in South LA. Amongst other things, that's potentially a pretty good way to get yourself shot.

(Today's opinion doesn't say where the incident here occurred, and the briefs aren't online, but I will note that there's a "Jeremiah Paul" in Compton -- as well as another one who works in East L.A. -- and the defendant apparently had dreadlocks and the incident was in an area "patrolled regularly" by the cops and in which the officer's usual practice was to ask anyone if they were on probation or parole. So there's at least a chance that the dynamics of the encounter might not have been exactly like, say, Elon Musk being pulled over on Rodeo Drive.)

I think that some of this might have influenced how the Court of Appeal comes out here. Here's how Justice Moor ultimately comes out -- a fair piece different than my hypothetical opinion a decade ago:

Considering the totality of the circumstances, we conclude that the initial encounter with the officers was an unlawful detention and that the trial court’s order must be reversed. Several factors lead us to this conclusion. First, although Officer Kumlander did not park the patrol car in a manner that prevented Paul from driving away, the officers’ subsequent positioning of their bodies blocked Paul from either driving away or departing on foot. By Officer Kumlander’s own testimony, he was at most between two to three feet away from the Prius’s driver’s side door. Paul testified that the officer was inches away and that he could not open the door without hitting the officer. The video shows that, even if Officer Kumlander was standing a few feet away from the Prius initially, he was holding his flashlight only inches away from the driver’s side window and had to move back to permit the door to open even slightly. Paul could not have exited the vehicle with Officer Kumlander standing there, nor could Paul have pulled the Prius out and driven away without either engaging or endangering Officer Kumlander. An objective person would not believe that he or she was free to simply start driving away with Officer Kumlander standing in the roadway. Moreover, the presence of Officer Helmkamp on the passenger side of the vehicle prevented Paul from sliding across the seat and exiting on foot without engaging Officer Helmkamp.

Second, Officer Kumlander and Officer Helmkamp exited their vehicle, approached the Prius from both sides, and shined their flashlights into the Prius from close range, right at the car door windows. This was a display of authority that would lead an objective person to believe that he or she was suspected of wrongdoing, both because more than one officer approached and because the officers shined their flashlights on Paul from opposite angles, effectively illuminating him on all sides. . . . If the officers wished to signal that Paul was free to go, the officers could have approached the Prius from the same side of the vehicle and engaged Paul in casual conversation. The officers instead flanked the Prius and approached from both sides while shining their flashlights into the vehicle. The officers’ approach is exactly the kind of coordinated action that an objective person would expect to witness when being detained. A reasonable person would conclude that when two officers approach in this manner, surrounding the individual in the vehicle, he or she is not free to leave.

Third, the officers approached Paul while he was talking on his phone inside a legally parked vehicle with the windows rolled up. Paul could not reasonably decline to interact with the officers without suspending or ending his phone conversation and at least engaging in a brief conversation with them. The circumstances would lead an objectively reasonable person believe that the officers required their attention and that they could not simply depart. . . .

Finally, although the dialogue between Paul and Officer Kumlander appears to have been non-confrontational in tone and language up to the point when Paul stated that he was a parolee, this is not strong evidence to conclude that a reasonable person would have felt at liberty to terminate the encounter with the officer. . . . Ostensibly, Officer Kumlander would interact in a polite, professional manner with a detainee who was responding in a polite manner, as Paul was in this case. If the officer’s tone and words had been aggressive, it would be an additional reason for a reasonable person to believe that he or she was being detained. The converse is not necessarily true, however—the officer’s courteous manner of speaking did not overcome the impression that he intended to detain Paul, which he and his partner conveyed through their actions. Moreover, if Officer Kumlander did not intend to detain Paul, he could have stated that Paul was free to leave at the outset of the conversation.

In light of all of the circumstances, we cannot conclude that the interaction between Paul and the officers was consensual."

I'm confident that there are many appellate judges (both state and federal), in California and elsewhere, who would have found these interactions entirely consensual, even today.

But I also think there's an increasing number who would agree with Justice Moor. Including but not limited to, obviously, the other two members of the panel here, since the opinion is unanimous.

Tuesday, February 13, 2024

People v. Kimble (Cal. Ct. App. - Feb. 9, 2024)

It's a slow "news" (opinion) day today, with only a single (clearly right) published opinion from the Ninth Circuit and nothing yet from the California appellate courts, so I thought I'd go back and briefly mention this opinion from last week. If only because it's unusual. Typically, when the Attorney General makes a concession in a criminal case, it's accepted by the Court of Appeal, and thought well-founded.

Not so here.

In 2008, Kelly Kimble gets a three strikes sentence of 25 to life, plus one year for an enhancement. In 2022, he attempts to be resentenced, but the trial court only shaves off the extra enhancement year, so he appeals. The Attorney General's office opposes the appeal, and in July of 2023, the Court of Appeal agrees with the Attorney General and affirms.

Usually, that'd be the end of the story.

But, here, two weeks later, the Attorney General files a petition for rehearing, saying "that his position had changed, and that he now conceded defendant was entitled to application of the Reform Act’s revised penalties at his 2022 resentencing." That's a big win for the defendant, right?

Not so much. The Court of Appeal is not persuaded. It says that "[t]he Attorney General did not explain the basis for his change in position, cite to any recent authority that might have triggered the sudden reversal, or point out any errors of law or fact in our opinion." So the Court of Appeal tells the AG to pound sand, and refuses to change its opinion.

End of story, right?


Then the California Supreme Court gets involved.

After the Court of Appeal refuses to rehear the case or change its opinion, in October of 2023, the California Supreme Court grants review and transfers the case back to the Court of Appeal with instructions to "reconsider the cause in light of the Attorney General’s concession that defendant was entitled to resentencing under the revised penalty provisions of the Three Strikes Reform Act. (Cal. Rules of Court, rule 8.528(d).)”

Defendant then submits briefs saying that he's entitled to resentencing (and noting the AG's previous concession), and the Attorney General's office doesn't submit an opposition.

Okay. Handwriting on the wall, right? Certainly, at this point, the Court of Appeal will relent and go the way that pretty much everyone -- even the California Supreme Court -- apparently seems to think is the correct resolution, right?

Nope. Not even then.

Here's how Justice Krause summarizes the Court of Appeal's current take:

"Having carefully reconsidered the matter, we again decline to accept the Attorney General’s bare concession. As a general rule, we are not bound by concessions made by the People in a criminal case. (People v. Alvarado (1982) 133 Cal.App.3d 1003, 1021.) And here, we are not inclined to give the Attorney General’s concession significant deference, as the issue before us turns on a question of statutory interpretation, such that the analysis is not invalidated simply by a change in party position.

It also is worth highlighting that while the Supreme Court’s basis for granting review appears to be the Attorney General’s concession, he has declined to take any position after transfer. Defendant, however, advances new arguments in his supplemental brief following the Supreme Court’s transfer order. We will address these contentions, and explain why the judgment is properly affirmed."

There you have it.

Which is basically the Court of Appeal saying: "Hey, we still think we're right, and we don't care what anyone else seems to think. At this point, it's your move, Cal Supremes. If you think we're wrong, fix it yourself. We're sticking with what we said."

Now we just wait and see if the California Supreme Court feels like fixing the alleged problem itself.

Monday, February 12, 2024

Johnson v. Lowe's Home Centers (9th Cir. - Feb.12, 2024)

The Ninth Circuit holds -- fairly predictably -- that the California Supreme Court did just fine when it held that individual PAGA claims may be required to go to arbitration but the non-individual PAGA claims can stay in court. So for that issue, absent anything new (like the Supreme Court stepping in and saying that its earlier dicta about the scope of state law in Viking River Cruises was correct), we pretty much know at this point how these things will go in both federal and state court.

Judge Lee adds a concurrence that has little to do with the substance of the court's holding but that he nonetheless feels is important to add just so employers don't potentially get stuck with issue preclusion from the outcome of the arbitration proceedings. He says that, in his view, even if the employer loses in arbitration, there shouldn't be issue preclusion on the PAGA claims that remain in court because the tiny amount of money at stake in the individual arbitration claim means that there's no "adequate opportunity or incentive to litigate" in arbitration. Meaning that the employer should get two bites at the apple: one in the arbitration proceeding, and another one in court.

I could say a lot about the opportunity/incentive aspect of res judicata, but my facial reaction can be summed up fairly quickly. To me, it's one thing to say that there's no incentive to litigate when a party is sued for a tiny amount (say, $500) and potentially faces issue preclusion in a much bigger suit as a result. There's nothing the defendant can do about that, since it was the plaintiffs who split up the lawsuits and raised the possibility of such issue preclusive effects.

It's quite another, it seems to me, when the defendant is the one who put himself in this position; i.e., when it was the defendant himself who (1) elected to create an arbitration provision, (2) decided that this would cover PAGA claims that he knew couldn't be arbitrated, and (3) elected to insist upon arbitration anyway once the lawsuit was filed -- typically over plaintiff's objection. If you decide to go down that path, with full knowledge of the issue preclusion consequences of your strategic choices, to me, you can hardly be heard to complain about that result. You could have avoided issue preclusion entirely by simply litigating the tiny individual claim alongside the much bigger claim in court. You chose not to. Any issue preclusion consequences of that decision are your own doing, and I find it implausible that you can be heard to complain about them.

So I understand and appreciate Judge Lee's attempt to provide an advance viewing of his position on a topic that's not at issue in the present case but that may perhaps nonetheless arise in some cases in the future. But it seems to me that he's wrong on the merits. Just as, for example, a plaintiff can't potentially assert non-mutual offensive issue preclusion when she was the one who strategically split up the two cases, so too should a defendant not be permitted to claim lack of incentive/opportunity to litigate with respect to defensive issue preclusion when he's the one who elected to split up the cases in the first place.

That's my take, anyway.

Friday, February 09, 2024

Sherman v. Gittere (9th Cir. - Feb. 9, 2024)

It's always amazing to me just how bad some people can be at committing a crime. Especially a serious crime like murder. Even when it's totally planned.

Like here.

Did Donald Sherman successfully kill his former girlfriend's father? Yep. Went to Las Vegas, broke in through a window, and bludgeoned him to death in his bed. No witnesses. No prints, either. No DNA or anything else at trial.

Okay. I suspect that Mr. Sherman might have considered that a job well done.

Now, before the murder, Mr. Sherman might have done some unnecessary talking that might have raised suspicions. After all, according to the opinion, "On May 1, 1994, Dianne’s friend, Erin Murphy, informed her that Sherman was going to Las Vegas and that she feared he would harm Dr. Bauer. Murphy told Dianne that she should tell her father and the Las Vegas Police Department. Dianne says that she informed her brother, the Longview Police Department, and the FBI about the danger Sherman posed to her father."

But that's not super compelling evidence that he's guilty of a murder that took place a month later. Still, he might not want to have said anything to anyone beforehand.

Here was his first big mistake, though. "Sherman stayed at a local Las Vegas hotel from May 28 to May 31, 1994, which coincided with the murder." Yeah, that's probably a bad idea. Might want to pay cash, or sleep in your car, if you're planning to kill someone in a different town. Or get a fake identification for the hotel room. Given how many kids have one for getting into bars, they can't be hard to get, right?

But it's not just that. Here's the absurdly stupid part. With a reminder that the person who was murdered was Dr. Lester Bauer:

"On May 30 [the day of the murder], Sherman called Swinging Susie’s, an escort service, and asked for an escort to meet him at his hotel room. An escort, “Paige,” met with Sherman, who introduced himself as “Dr. Bauer.” Sherman paid for Paige’s services with Dr. Bauer’s credit card and signed the receipt as “Dr. Lester Bauer.” Paige returned to Sherman’s hotel the next morning, May 31.

Later on May 31, Sherman checked into a hotel in Santa Barbara, California. Again, he introduced himself as “Lester Bauer,” paid with Dr. Bauer’s credit card, and signed the receipt as “Dr. Lester Bauer.”

On June 2, Santa Barbara law enforcement arrested Sherman while he slept in Dr. Bauer’s stolen car. Inside Sherman’s wallet the officers found Dr. Bauer’s credit cards and restaurant and jewelry-store receipts signed by “Lester Bauer.”"

Dude, seriously? After you bludgeon a guy to death with a hammer, you might not want to (1) tell an escort that you're that guy, (2) pay with the dead guy's credit card, (3) check into a hotel as that guy, using (again) his credit card, (4) buy jewelry and go to restaurants with that same card, and (5) sleep in the dead guy's stolen car.

Needless to say, the guy gets convicted and sentenced to death in Nevada. And, on habeas, the Ninth Circuit affirms. Because, among other reasons, any potentially problematic evidentiary rulings at trial would have been harmless error given the overwhelming evidence of Mr. Sherman's guilt.

Since it's Nevada, there's a slightly greater chance than in California that Mr. Sherman would actually be executed since his federal habeas appeals are about over. That said, Nevada hasn't actually executed anyone since 2006, and of the dozen people executed there since the death penalty came back in 1976, all but one have been "volunteers". So I'm not sure that today's opinion really puts Mr. Sherman on the edge of actually having his sentence carried out.

Still. Life in prison on death row in Nevada is hardly where one wants to end up in life. Or, as here, spend 27 years, and counting, with another 30 or so to go before almost certainly dying in the place.

Lietz v. Lietz (Cal. Ct. App. - Feb. 8, 2024)

If you litigate long enough, you'll eventually have some issues with an expert. Maybe tiny ones, maybe big ones.

Just be glad you're not the lawyer in this case.

It's a divorce action, and the big fight seems to be about the value of the marital home. Wife says it's worth $1.1 million, whereas Husband says it's worth $1.02 million. At trial, they both get experts to testify to their respective positions. (Why you can't just settle at $1.06 million or so is beyond me, as opposed to going to trial over the $40,000 difference, but that's a different issue, and I don't do family law, so the unique dynamics of that field may perhaps explain the decision here.)

Wife's appraiser, Kristina L. Burke, prepares an appraisal report on November 16, 2021, and the parties exchange reports two days later, on November 18, 2021. The trial is the next day, on November 19, 2021. (Aren't you jealous of family law cases getting to trial so quickly after expert reports are due?)

At trial, Wife's expert, Ms. Burke, doesn't actually show up. Instead, she testifies . . . on the phone. 

From her car.

Without access to her appraisal (or the opposing expert's appraisal) or other documents in the case.

The trial judge was not impressed, to say the least:

"During cross-examination, Andreas’s counsel moved to exclude or strike Burke’s testimony and appraisal report “due to lack of preparation and lack of ability to testify in this matter.” In response, the court stated, “Essentially, you’re doing it from a phone in a car, and you can’t use your phone to look at documents and appear in a hearing.” The court declared that Burke’s manner of testifying created a problem in an evidentiary hearing. The court continued the trial to November 22, with the admonition, “Ms. Burke, I’m hoping that you will be in a different situation, not on a phone.”"

Ultimately, Wife loses, as the trial court found Husband's appraiser "to be more credible and found the home to be valued at $1,020,000."

Wife appeals, and loses in the Court of Appeal as well.

Litigation tip of the day: Don't have your expert testify at trial from her car.

Wednesday, February 07, 2024

People v. Jimenez (Cal. Ct. App. - Feb. 7, 2024)

I gotta give props to Justice Kelety. When this opinion was initially published last week, I thought: "Whoa. I understand Part II, but I'm seriously thinking deeply about Part III. Was the evidence really insufficient to sustain defendant's conviction? The guy nearly hit a cop car, drove like a bat out of hell at 60 to 100 mph (!) in a 35 mph zone for over a mile while evading a marked police car with its siren and lights on while driving on the wrong side of the road and nearly hitting other vehicles, and then crashes his car into a brick wall. The officers totally recognize the defendant as the one driving the vehicle during the pursuit, but when they get to the crashed car, he's nowhere to be found. They so testify at trial. Is that really insufficient evidence as a matter of law that the guy in fact committed a hit and run, which is what the Court of Appeal in fact held? Seems to me like the guy obviously fled."

So I thought about saying something like that, but then life got in the way, I got busy, other things happened, the whole "Biblical Flood in Southern California" thing went down, etc. etc.

Today, Justice Kelety decides to not publish Part III, even after originally not publishing the entire thing, then deciding to publish the whole opinion, and then splitting the middle to take out (IMHO) the part that totally had me wondering.

I mean, I get her point: the police didn't testify about how long it took them to respond to the collision, or why exactly Mr. Jimenez was nowhere to be found after the crash. They definitely (probably) should have.

But, I mean, come on. The guy was crazy evading the police. It's obvious (to me, anyway) that after trying out outrun 'em, and then crashing his car, he ditched the thing in one last effort to get away. Is it theoretically possible that it took the police, like, an hour to get to the car after it crashed, or that the guy really wanted to call the police and report his crash but, shucks, was just too concussed or confused to do so? Maybe. I guess. But I'd bet my left foot that the police got there really quickly after chasing the guy at 100 mph for a little over a mile, and even if the guy testified that he intended to call in the accident (which he didn't), I'd bet my entire set of feet on the fact that he wasn't telling the truth and that he deliberately fled in a (continuing) attempt to get away.

But, hey, at this point, Part III is unpublished, and -- as I noticed at the time -- the guy's sentence on Count 2 (the one reversed by the Court of Appeal) was stayed anyway. So not like it really matters at this point. To anyone.

Problem solved.

(Though I still do wonder if the Court of Appeal is really right on this one. Which I'd care more about if it mattered, which, again, it doesn't much at this point.)

Devas Multimedia Private Ltd. v. CC/Devas Ltd. (9th Cir. - Feb. 6, 2024)

I know that it doesn't matter much either way. But since senior judges on the Ninth Circuit aren't allowed to vote on en banc calls in the first place (even though they're invited to express their views internally, if they wish), I probably wouldn't have them publish something that simply says -- as Judge O'Scannlain does here -- that in a universe in which they had a vote, they'd have voted for en banc review. ("I agree with the views expressed by Judge Bumatay in his dissent from the denial of rehearing en banc.")

I mean, sure, that's great to know, and there's no real downside in saying so. But, to use an analogy, we don't allow 14-year olds (or people in prison) to vote in elections, even though they're fully entitled to participate in deliberations about whom to elect in those things, and we likewise don't have official procedures designed to record how they would have voted if they had a vote. (Which, again, they don't.)

So I'd probably just leave this one alone.

Tuesday, February 06, 2024

M.A. v. B.F. (Cal. Ct. App. - Feb. 5, 2024)

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Thursday, February 01, 2024

City of Norwalk v. City of Cerritos (Cal. Ct. App. - Feb. 1, 2024)

I'm not entirely sure why, but I find this case hilarious.

The City of Cerritos (in LA) doesn't want a ton of heavy truck traffic. It's fine with trucks are dropping off stuff to City residents or businesses, but otherwise, it doesn't really want them to drive through the place. Noise, road damage, etc.

So it passes a law back in '74 that says that trucks travelling through the city (as opposed to "in" the city) are restricted to two particular roads. Then, in 2019 and 2020, the City amends the ordinance to remove one of those roads from the list of permissible truck routes.

Which hacks off the City of Norwalk, a neighboring municipality, because Norwalk says that after the change, the trucks started driving through Norwalk instead. So it sues, alleging the Cerritos' statute creates a public nuisance.

The trial court grants Cerritos' demurrer, and the Court of Appeal affirms, holding that Section 3482 of the Civil Code makes cities immune from nuisance liability for any acts done, as here, pursuant to a statute.

The whole thing is funny to me because it's like two little kids arguing about sharing a toy or who has to clean up their room. Just deal with it, dudes. Norwalk: If you don't like truck traffic through your city, pass your own ordinance that limits the stuff to particular routes. Or just recognize that, oh well, there are sometimes going to be trucks driving through your place. 

Or, heck, if you want, try to get the Legislature to pass a law that stops cities from doing stuff like this. I'm not sure that running to your parents -- here, filing litigation in front of a court -- is really the most productive way to try to solve this dispute.

But, hey, at least it gets resolved. "Deal with it, Norwalk."

Wednesday, January 31, 2024

Abney v. State Dept. of Health Care Svcs. (Cal. Ct. App. - Jan. 31, 2024)

The Court of Appeal is right, and Legal Aid is wrong. It's technically "income" to you even if you don't get the money. So if $600 gets garnished from your monthly Social Security check to pay your IRS debt, that $600 still counts as part of your monthly income to determine what welfare programs for which you might or might not be eligible.

Now, Legal Aid has a point; that's somewhat silly, because you're still poor, since you don't actually get the $600, so it seems a bit crazy to say that you're not poor because "in theory" you get an extra $600 a month (that you actually don't receive).

But, yeah, that's the rule. For better or worse.

Tuesday, January 30, 2024

In re: A.K. (Cal. Ct. App. - Jan. 30, 2024)

The opinion isn't really about this part, but I was struck by the final words of this sentence, which begins the Court of Appeal's statement of facts in this dependency case:

"When the minor was born in April 2022, the Agency received a report that mother tested positive for methamphetamine, benzodiazepines, and sexually transmitted diseases."

We clearly care that a mother is using drugs while pregnant. We also care, medically, if she has STDs while pregnant. You just don't usually see references to STDs in these dependency cases. It's typically all about the drugs (and/or abuse).

The opinion doesn't mention the STD thing apart from this one reference. Still, somewhat surprising, and left me wondering if having an STD while pregnant was one of the things that might get you referred for possible dependency proceedings.

Monday, January 29, 2024

U.S. v. Virgen-Mendoza (9th Cir. - Jan. 26, 2024)

This case is unusual if only because you usually don't see someone get sentenced to federal prison for trying to smuggle someone into Mexico.

Though if the reason you're trying to smuggle that person into Mexico is because he just shot and killed a police officer in the United States, yeah, that'll get you in trouble for sure.

Wednesday, January 24, 2024

Kinney v. City of Corona (Cal. Ct. App. - Jan. 24, 2024)

This (alleged) strategy might perhaps work for a while, but there's a serious risk of it all crashing down on you at some point.

Background: One well-known strategy was to file hundreds of separate unfair competition lawsuits against business owners in an attempt to obtain (extort?) small-scale attorney fee settlements from the defendants. That worked for a long while, but several previously successful lawyers ultimately lost their law licenses as a result.

Another well-known strategy is to do the same thing with serial lawsuits under the Americans with Disabilities Act. But that ultimately resulted in reactive measures against those participants as well, with some of them finding themselves criminally convicted.

Today's opinion from the Court of Appeal involves an (allegedly) similar strategy under the California Public Records Act. According to Justice Fields: "[The City of Corona]claimed that Kinney and Toraason were engaged in a “shakedown scheme” to collect thousands of dollars in attorney fees from numerous California public agencies based on denied requests for public records. According to City, the alleged “scheme” worked like this: A petitioner like Kinney would find an internet news article reporting a crime; the petitioner would send an e-mail to the public agency referenced in the article, requesting the name of the crime victim; when the agency denied the CPRA request “on the grounds that the information is privileged, confidential, exempt, or otherwise non-disclosable,” the petitioner would “immediately file” a “cookie-cutter” petition “accompanied by a request for a [filing] fee waiver” and asking the court to order the agency to pay the petitioner’s attorney fees. . . .

It is not clear when Kinney first made a “ransom” or monetary demand of City, but the record includes a February 15, 2020 e-mail from Higginbotham to Toraason, referencing a “settlement demand” from Kinney for $6,500. In the e-mail, Higginbotham said it was “preposterous” that Toraason could have incurred $6,500 in attorney time on the case at that point. . . .

At that point, Higginbotham believed Borchert, Toraason, Austin, and Kinney “were all complicit in a vast, statewide shakedown scheme, using the same cookie-cutter petition template, and substantially identical tactics. City claimed it discovered “a new variant on the scheme by which Austin would e-mail” CPRA requests from an e-mail-address “plainly calculated to trigger spam blockers . . . and thereby deprive public agencies of the opportunity to respond to the [CPRA] request until after a lawsuit had been filed and the ransom demanded.”"

Here, the lawyers get paid. But, after the Court of Appeal's reversal, only $2500, rather than the $43,000+ awarded by the trial court.

As I said, I suspect that (alleged) efforts like this work. Until they don't.

P.S. - I think it might be especially dangerous to try things like this with public entities. They have a lot of power. And they don't need to be economically rational in how they respond to demands that they believe are extortionate.

Tuesday, January 23, 2024

Center for Food Safety v. Regan (9th Cir. - Jan. 23, 2024)

The Ninth Circuit's panel opinion was in 2022, with Judge Miller filing a partial dissent. Judge Miller voted to grant panel rehearing (which was denied), and all of the judges -- including Judge Miller -- voted/recommended denying en banc review.

Nonetheless, some Ninth Circuit judge voted to take the case en banc, but lost the vote, so on December 5 of last year, the Ninth Circuit entered an order denying the petition for en banc review.

That Order from December 5 of last year was just posted today.


Snitko v. United States (9th Cir. - Jan. 23, 2024)

I'm not one of those people who believe that the federal government was behind 9/11 or that the "deep state" (and/or Illuminati) controls the nation, but I do believe that the government substantially oversteps at times. When, in pursuit of (usually) legitimate objectives, the government goes way, way too far.

This is one of those times.

A company opened a business in Beverley Hills that rented out safe deposit boxes, with incredibly tight security. Seems reasonable. But, unlike regular banks, which also rent safe deposit boxes, this company "did not require customers to provide personal information, social security numbers, driver’s licenses, or any other form of identification in order to rent a box."

Predictably, some -- perhaps many -- of the people who rented those safe deposit boxes were criminals, who had cash or drugs or whatever that they didn't want connected to their name. Moreover, the company probably knew (or at least suspected) as much.

After taking down various individuals who had safe deposit boxes at the place, the feds decided that they wanted to take down the whole company as well. So they got a warrant and raided the place, and opened up all the safe deposit boxes. Presumably to find -- and seize -- whatever drugs and other contraband was there.

I bet there was some. Fair enough.

But the United States decided to go further. It decided to seize, and declare forfeit, every safe deposit box that had more than $5000 worth of stuff in it. Even from totally legitimate customers. Like:

• Paul and Jennifer Snitko, who used their USPV box to store legal documents, watches with sentimental value, hard-drive backups, coins, and gold jewelry. They used USPV “because [their] bank had a waiting list for a safe deposit box, [they] live in a wildfire prone area . . . and [they] require a place to store [their] wedding bands when engaging in sports activities . . . .”

• Tyler Gothier, who stored “silver and other personal property” in his box and used USPV due to its convenient location. 

• Joseph Ruiz, who stored $57,000 in cash in his box and used USPV because he was concerned that “the COVID pandemic would make it impossible for [him] to withdraw [his] funds from a bank account.” 

• Michael Storc and Jeni-Verdon Pearsons, who stored “approximately $2,000 in cash, as well as approximately $20,000 worth of silver,” along with “personal documents” in their box. They used USPV because they needed a safe place to keep the silver. 

• Travis May, who stored $63,000 in cash, $100,000 in gold, and various documents in sealed envelopes in his box, and used USPV as an “alternative location to access valuables in case of emergencies.” 

These legitimate customers filed claims forms with the United States seeking a return of the stuff in their security deposit boxes. What did the feds tell them to do? Pound sand. Instead, the United States filed forfeiture proceedings against them, seeking to keep the valuable contents.

Eventually, the plaintiffs here get their stuff back. But they have to go through extensive proceedings and litigation to make that happen. Which ain't cheap. Yet is, in my view, entirely unnecessary.

The case in the Ninth Circuit is about whether the plaintiffs can also get an order that requires the feds to destroy their records about what they found in the safety deposit boxes of these legitimate customers, and the Ninth Circuit says that they can.

But my overall reaction is to the underlying seizure proceedings themselves. I'd spank the government for its recalcitrance in giving the money back. Hard.

There's massive incentive for the federal government to want to keep seized money, even when there's a darn good chance that the assets belong to entirely legitimate people. Courts should minimize that incentive and keep the government honest. Merely giving the money back after extensive and risky legal proceedings isn't enough. There's got to be additional downsides as well.

Serious ones, IMHO.

Monday, January 22, 2024

People v. Campos (Cal. Ct. App. - Jan. 22, 2024)

I'm certain that there are many people who would categorically agree with Justice Poochigian when he says in this opinion:

"The interests of justice are not furthered by excluding truthful, relevant evidence needed to prosecute criminals."

Nonetheless, to me, that statement seems far too broad. For example, we exclude lots of truthful evidence when there's a violation of Miranda, and I personally think that opinion advances the interests of justice. More generally, I think it advances the interests of justice to exclude even accurate confessions that are, for example, beaten out of robbery suspects by the police, even if the accuracy of that confession is totally confirmed by the resulting discovery of the stolen loot at the location the beaten suspect reveals, and even if that confession is necessary for the suspect's conviction. The price is too high.

Now, in this particular case, I agree that the failure to provide post-seizure notice in the particular manner required by state law doesn't require suppression or invalidation of the conviction. I might even also agree that, as a general matter, the interests of justice are often not furthered by excluding truthful and relevant evidence needed to prosecute criminals.

But just as I wouldn't say that NBA players are over 6 foot tall -- since some are not -- I also wouldn't say (in a written opinion or otherwise) that the interests of justice are thwarted when truthful, relevant evidence is excluded.

People v. Heltzer (Cal. Supreme Ct. - Jan. 22, 2024)

Read this opinion -- or at least the first dozen pages or so -- and see whether you think the defendant:

(A) Wouldn't have done the same thing but for his initial religious upbrining;
(B) Wouldn't have done the same thing if he wouldn't have abandoned that upbringing;
(C) A mix of both (A) and (B).
(D) Neither (A) nor (B).

Personally, I think that (D) is the answer least likely to be true.

Regardless, the defendant is sentenced to death, and the California Supreme Court unanimously affirms.

Friday, January 19, 2024

People v. Fouse (Cal. Ct. App. - Jan. 18, 2024)

This is a pretty good opinion to figure out where you generally stand on the resentencing provisions of Section 1172.6, which "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life."

On the one hand, the crimes are (to me, at least) horrific home invasions -- plus the attempted murder of police officers while evading arrest -- and I'm more than happy for the perpetrators to be incarcerated for a relatively lengthy period of time.

On the other hand, the defendant here was simply the getaway driver, and she has already served more than 14 years in prison.


Martinez v. ZoomInfo Technologies (9th Cir. - Jan. 18, 2024)

If I'm reading the tea leaves correctly, unless there's a surprising panel draw, the era of being able to file an interlocutory appeal of anti-SLAPP motions in the Ninth Circuit is about to come to an end.

Wednesday, January 17, 2024

Olson v. Saville (Cal. Ct. App. - Jan. 17, 2024)

I'm totally having my students read this opinion from the Court of Appeal in my "Law of Surfing" class.

Assuming, arguendo, the Dean would ever let me teach it.

U.S. v. Marin (9th Cir. - Jan. 17, 2024)

I understand and appreciate that, on the high seas, the United States can exercise jurisdiction over "stateless" vessels. So if, for example, you're carrying a ton of drugs, you're 655 miles west of the Galapagos Islands, and your ship isn't flying the flag of -- or registered in -- any particular nation, then by not subjecting yourself to the jurisdiction of any particular nation, you're de jure subjecting yourself to the jurisdiction of every nation. So any nation can board your vessel and prosecute you for having the drugs, even if those drugs weren't necessarily intended for that particular nation. That rule likely comes out of the pirate days, and okay, I can get on board for it.

But, here, the facts seem a little different. The two people on the go-fast boat (with the cocaine) are clearly from Ecuador, and the closest landmass is Ecuador. When the U.S. Coast Guard wants to board the ship and search it, it asks permission of Ecuador, which says that it's indeed an Ecuadorian ship and gives the U.S. permission. When the Coast Guard asks the captain(s) of the ship what nationality their ship is from, they both say: "Ecuador."

But, after the Coast Guard searches and finds the cocaine, the Coast Guard again asks Ecuador whether the ship is from Ecuador, and Ecuador then says it can "neither confirm nor deny" that it's from there.

Which, according to the Ninth Circuit, means -- under federal law and permissible international law -- that the ship is stateless, and its occupants can be prosecuted by every nation in the universe.

Doesn't it seem weird, though, that prior to searching, the U.S. was allowed to do so only after Ecuador said it was a ship from Ecuador . . . but, thereafter, said that Ecuador had no idea if it the ship was from there? Doesn't this rule also give rise to easy circumvention of jurisdictional requirements? If a state can simply "refuse to confirm or deny" whether a ship is from that country, and thereby grant jurisdiction to every other nation, how is that at all consistent with fundamental fairness, and how are the occupants of that ship supposed to know that they're suddenly subject to the jurisdiction of whatever nation -- say, Iran, or North Korea -- feels like prosecuting them?

Plus, at a more fundamental level, isn't this ship obviously from Ecuador? It just seems weird to say that when every indication in the universe is that the ship's from Ecuador, we can just ignore that fact as long as Ecuador itself doesn't feel -- for whatever reason -- like responding to our inquiries about whether the ship is in fact from Ecuador, like every single objective measure unambiguously suggests.

I know that the law on the high seas is weird, and I don't pretend to be an expert on it.

But still. This seems strange.

Tuesday, January 16, 2024

Williams Sport Rentals v. Willis (9th Cir. - Jan. 16, 2024)

This is yet another case where someone dies on a jet ski; in this case, in South Lake Tahoe. Just like the jet ski case I discussed back in 2009, this is yet another case in which the Ninth Circuit applies the federal Shipowner’s Limitation of Liability Act and holds that the owner of the jet ski is only liable to the injured person for, at most, the value of the jet ski.

So, here, the dead person gets, at most, $5000.

This is, of course, absurd.

I know that this request will fall upon deaf ears. But would someone in Congress please file a bill to amend the statute so it doesn't apply to stupid jet skis; or, for that matter, any other tiny little vessel. A plethora of small boats are already exempt from the statute. It's crazy that jet skis -- which are tiny but do not carry "passengers for hire" -- are nonetheless covered.

But, I get it, it's only some dead people and their families. Why would Congress at all care about that.

Friday, January 12, 2024

Punchbowl, Inc. v. AJ Press (9th Cir. - Jan. 12, 20224)

Two days ago, I somewhat critiqued Judge Nelson's analysis of when circuit precedent is sufficiently inconsistent with a subsequent Supreme Court decision to no longer bind a panel.

Today, Judge Bress authors a lengthy opinion that, in my view, is exactly the right way to do about doing precisely that.

Personally, I hope (and think) that the defendant will prevail in this trademark dispute, just as it did in the district court and in the Ninth Circuit's original opinion. I'm not at all sure why the plaintiff even thinks it's worth the money to litigate this one.

But Judge Bress nonetheless thinks that the intervening Supreme Court opinion requires that the district court take another look at this one, notwithstanding the panel's original affirmance, and presents a darn good argument for that result.

Regardless, it's a good exegesis on how intervening and circuit precedent properly interact.

Thursday, January 11, 2024

Tornai v. CSAA Ins. Exchange (Cal. Ct. App. - Jan. 11, 2024)

Does the trial court here know something that I don't?

Ms. Tornai gets into an auto accident with someone with a $25,000 insurance policy. She settles for the $25,000 policy limits, but says that her damages are above that. So she makes a claim under her own auto policy for an accident with an underinsured motorist.

The insurance company (CSAA) is willing to pay, but the only medical expenses that plaintiff submits are bills for a little over $30,000, and as to those, Medi-Cal paid them, at a discount, so legally, plaintiff can only recover the (discounted) amounts Medi-Cal actually paid. Plaintiff's lawyer, however, apparently refuses to provide CSAA with the documents that show how much was actually paid. The lawyer instead insists that CSAA pay a policy limits demand of $275,000, to which CSAA -- not surprisingly -- says, "No thanks."

So CSAA and plaintiff have a dispute over the amount of uninsured motorist (UM) benefits under the policy, and California law (and the policy itself) requires arbitration of that dispute. So when plaintiff sues, CSAA files a motion to compel arbitration.

Which the trial court denies. The trial court agrees with plaintiff that CSAA is just stalling, and should pay the amounts "indisputably" due right now, before arbitration. So the trial court says that the whole shebang -- bad faith plus the UM amounts due -- will be resolved in court instead of arbitration.

The Court of Appeal reverses. In an opinion by Justice Richman that seems indisputably correct. The law requires that the amount of UM payments due -- which is, in fact, clearly disputed, since plaintiff is demanding tons more than the $2,000+ CSAA has offered to pay -- be arbitrated, so, yeah, that dispute goes to arbitration.

I'm honestly not sure how the trial court could have possibly thought otherwise.

Now, it's clear that the trial court was miffed at CSAA, and thought that it was, in fact, just stalling, and hoping to benefit by delay. But at least on the cold paper record, it doesn't seem that way to me. CSAA's request for the actual Medi-Cal payment amounts -- which plaintiff's lawyer refused to provide -- seems entirely reasonable. Whereas plaintiff's claim for a whopping $275,000, right now, for $30,000 (max) in medical expenses seems a bit excessive, or at least gives rise to a legitimate dispute.

Reading between the lines, maybe it's also that CSAA was a bit sloppy in its motion to compel, since its moving papers at least ostensibly requested arbitration of the "entire" lawsuit, including the bad faith claim (not just the claim for UM benefits). CSAA made clear in its reply brief that's not what it wanted, but perhaps that confusion -- plus the purported stalling -- gave rise to the trial court's attitude towards the whole thing. Baby and the bathwater, and all that.

Still. Justice Richman says that the UM claim goes to arbitration, then we'll figure out later if there's any bad faith. Seems entirely the right way to go.

Wednesday, January 10, 2024

Garcia v. Tempur-Pedic North America (Cal. Ct. App. - Jan. 8, 2024)

I do not have strong qualms about the merits of this opinion. The trial court included as cots various fees for depositions that, for one reason or another, did not, in fact, go forward. That seems generally fine to me -- or at least not categorically impermissible -- for the reasons Justice Raphael identifies.

But as I read the opinion, one thing kept -- and keeps -- confusing me.

Justice Raphael repeatedly says that one of the non-party deponents, a treating physician named Dr. Tan, was served by the defendant after he died. For example: "Tempur-Pedic also requested costs for service of process on . . . Dr. Randall Tan ($306.82);" "[Defendant] represented that Tan was identified as a treating physician and served before they were aware he had died;" and "As to Tan, the court awarded the costs because there was no indication Tempur-Pedic was aware of his death when they served him."

But, as a nonparty witness, Dr. Tran needed to be personally served with the subpoena. So there's no way the defendant actually did that if he was dead.

So I went back and checked the briefs. Which made clear that what everyone is talking about are the costs of attempting to serve Dr. Tran.

Which makes more sense.

To make things clearer, I might add "attempting" to the various places in the opinion where it says that the trial court granted costs for "serving" Dr. Tran.

If only for slowpokes like me.

Munoz v. Superior Court (9th Cir. - Jan. 9, 2024)

Judge Ryan Nelson is right on the merits, but pulls a neat little doctrinal trick that's probably a bit too slick for my tastes.

Plaintiffs sue some state court judges saying that their bail was too high and seek injunctive relief. You can't do that. Eleventh Amendment. State court judges are immune.

There's an exception to this doctrine: Ex Parte Young. But Judge Nelson is right; that exception doesn't apply where, as here, there's no reason to sue the state court judges and the relief that plaintiffs seek can properly be obtained on appeal in state court. If you think your bail is too high, appeal it. State court, not federal.

All good and right, in my view.

The one problem with this position -- and the one I'm confident plaintiffs are pretty much entirely banking on -- is the Ninth Circuit's 2004 opinion in Wolfe. That case also involved a lawsuit seeking injunctive relief against state court judges (this time for allegedly unconstitutionally applying California's Vexatious Litigant statute), and although that action was largely dismissed for a variety of reasons, the Ninth Circuit held that two state court judges, were not immune from suit under the Eleventh Amendment, and indeed reversed the dismissal of the lawsuit as applied to Chief Justice George. So holding by citing . . . Ex Parte Young.

Judge Nelson's opinion expressly concedes that "Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), can be read to hold that the Ex parte Young exception allows injunctions against judges acting in their judicial capacity." But he responds by saying that this Ninth Circuit holding -- which otherwise would bind the panel -- "is clearly irreconcilable with Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), and thus overruled."

But here's the thing. Jackson didn't make any new law. At all. The relevant portion of Jackson simply cited and quoted from Ex Parte Young itself, which itself held that "normally" you can't sue state court judges, particularly when you can directly appeal.

No kidding. Everyone knows that already. 'Cause Ex Parte Young said it. Yet the Ninth Circuit in Wolfe said that, in this setting, you can sue state court judges. So it distinguished Ex Parte Young.

In this setting, I don't think it's right for Judge Nelson to say that Jackson overrules circuit precedent, thereby relieving the panel from its obligation to follow it. Since Jackson indisputably said absolutely nothing now. 

When Case X distinguishes Case Y, and then Case Z later quotes Y, that doesn't mean that X is no longer good law. Quoting -- and even relying on -- a prior precedent doesn't overrule a case that distinguishes that precedent. That says that this situation is different. The two are not thereby "clearly irreconcilable."

Now, it might well be that the purportedly distinguishing characteristic identified in X no longer works given Z because the same distinguishing characteristic present in X was also present in Z, and yet the higher court still came out the same way as Case Y (e.g., dismissed the suit). Fair enough. But two things. First, you've got to say that. Second, it's got to be true. And neither of those things exists in the present case. Judge Nelson doesn't identify the purported distinction in Wolfe, nor does he say -- nor is it true -- that that same distinction existed in Jackson. So the cases are not, in fact, "clearly irreconcilable" and hence circuit precedent overruled.

I readily admit that the opinion in Wolfe with respect to judicial immunity is, uh, slim, and on this particular point not especially explanatory. A fact that's probably slightly embarrassing to Judge Willie Fletcher, who authored the opinion in Wolfe and -- coincidentally enough -- is on the panel in the current case, and who joins Judge Nelson's opinion in full (an opinion that holds that Judge Fletcher's prior opinion is not good law). But from reading Wolfe, it seems to me that Judge Fletcher's point with respect to the immunity issue -- and why he (and the rest of the panel) thought that Ex Parte Young did not apply -- is because the judicial duties there were purportedly administrative, at least in part, rather than judicial, which was probably a bit true with respect to the state vexatious litigant list and is a fairly standard distinction applied to the usual Ex Parte Young rule. (An exception that explains, in part, why Ex Parte Young itself said that normally you can't sue state court judges, rather than holding that you categorically can't sue them.) Moreover, Jackson didn't involve that purported distinction at all; it was a straightforward "enjoin state judges from hearing private abortion lawsuits" claim.

In short, X (Wolfe) said that Y (Ex Parte Young) didn't apply for Reason Q, and although Z (Jackson) cites Y (Ex Parte Young), Z both didn't discuss Reason Q nor itself involve a fact pattern giving rise to Reason Q.

Which means that circuit precedent isn't overruled, and the panel is still bound.

Mind you, I think that Reason Q probably doesn't apply in the present case either. Which is to say that Judge Nelson's current disposition is likely right; the present case isn't really like Wolfe, and so the rule applied in Jackson and the "usual" rule from Ex Parte Young applies.

But that's a very different thing that what Judge Nelson says. In my view, if the facts of Wolfe come up again (e.g., in Arizona), the panel is bound to come out the same way. Perhaps, honestly, rightly so, as it might well be -- maybe not, but maybe -- that the administrative nature of a vexatious litigant list may be a legitimate exception to normal judicial/Eleventh Amendment immunity. Regardless, the panel is bound, and an en banc court has to figure out if Judge Fletcher got it right.

By contrast, Judge Nelson says that Judge Fletcher is wrong, period. That there's no distinguishing characteristic between Wolfe and the "normal" rule in Ex Parte Young, even though Judge Fletcher said there was.

But the Supreme Court in Jackson said so such thing. At all. Either expressly nor by implication.

So one might rightly say that Wolfe is distinguishable, but it's wrong to say that Wolfe was necessarily overruled by Jackson merely because they cited the exact same cases.

P.S. - On a totally unrelated point, I always find it funny when I have to say Judge Fletcher or Judge Nelson's full names. I was a clerk back when Judge Fletcher's mother was on the court, before Judge William Fletcher (I hope he doesn't mind me using "Willie" on occasion) was even appointed, so I sometimes feel compelled to say "William" lest anyone think it's "Betty" Fletcher, even though she's been deceased for some time now. Relatedly, I always say "Ryan" Nelson because Judge Dorothy Nelson is still a senior judge on the court, even though I don't think she's authored an opinion for the past year or two. Plus there was Judge Thomas Nelson, who was also on the Ninth Circuit when I was a clerk. So, in my mind, you always gotta make sure everyone knows which Fletcher and/or Nelson you are talking about. Oh, and, yet more coincidentally, guess who joined Judge William Fletcher's opinion in Wolfe? Yep, Judge Nelson. Thomas. (Not Ryan, obviously).

Tuesday, January 09, 2024

Sarmiento v. Superior Ct. (Cal. Ct. App. - Jan. 9, 2024)

"Sarmiento was raised by her mother and stepfather. Between the ages of five and eight, along with a group of other children, she was sexually abused by her 30-year-old stepbrother on a repeated basis. Sarmiento did not report the abuse to anyone until she was an adult.

Sarmiento’s stepfather, who she was close to, died of a heart attack when she was 13. She was hospitalized and saw a psychologist after she threatened to commit suicide by jumping off a bridge. At about the same time, she began using methamphetamine, later selling it with her brother Oscar. A few years later, while still in high school, she was gang raped at a party.

In 2013, after being arrested for selling drugs, Sarmiento completed a 120-day residential substance abuse treatment program. She maintained her sobriety for nearly six years, but relapsed in 2019 as a result of an unhealthy romantic relationship with a meth addict who used in her presence and encouraged her to join him. This led to four hospitalizations in that year and two robbery convictions in 2020. While incarcerated she completed additional courses on substance abuse, but received no treatment for her primary mental health diagnoses. She appeared to relapse again shortly before the attempted robbery charge in this case.

Sarmiento’s parole agent supervised her before her latest arrest, and was surprised that it occurred. She characterized Sarmiento as a “ ‘model parolee’ ” who followed the rules and maintained contact as required. She noted, however, that “drug use exacerbates [Sarmiento’s] mental health issues.”

My strong sense is that Ms. Sarimento -- who lives here in San Diego -- needs some help.

Here's how she came to the attention of the police:

"In this case, defendant Jeanette Sarmiento requested mental health diversion (Pen. Code, § 1001.361) after she was charged with attempted robbery arising from an incident in which she handed a liquor store clerk a note written in lipstick on a napkin saying, “Let me get the money.” The store employees did not give her any money. Instead, they called 911. According to one of the employees, “[I]t looked like she wanted us to call the police.” 

Seems fairly strongly to me like an appropriate case for pretrial mental health diversion.

The trial court -- Judge Moring -- didn't think so. The Court of Appeal reverses.

Hopefully Ms. Sarmiento can get her act together this time.

(Maybe also stay away from meth addicts in the meantime.)

Thursday, January 04, 2024

Garner v. BNSF Railway Co. (Cal. Ct. App. - Jan. 4, 2024)

Back in the old days, when you saw a complaint against a railroad, it was for the typical stuff: a railway worker got injured, someone got hit by the train, a cow trespassed on the tracks, etc.

By contrast, nowadays, it's things like this one: a railway worker claiming that he got cancer from inhaling diesel exhaust, benzene, and the like.

The trial court bounced this one because it didn't think the experts satisfied Daubert, but the Court of Appeal reverses and remands for a trial.

It's never been easy running a railroad.

(Except, of course, in Monopoly.)

Tuesday, January 02, 2024

California Restaurant Ass'n v. City of Berkeley (Jan. 2, 2024)

Judge Friedland begins the new year with somewhat of a bang.

She generally doesn't like written dissents from the denial of rehearing en banc; e.g., "dissentals." For this reason, before today, she'd neither written nor joined one, thinking that they're somewhat unhelpful.

The operative words being "before today."

Today, she authors one, dissenting from the denial of rehearing en banc in a case holding that the City of Berkeley's attempt to ban natural gas hookups as a part of its building code was preempted by federal law.

Seven other Ninth Circuit judges join Judge Friedland's dissental. Since Judge Friedland has been on the Ninth Circuit for nearly a decade, and this is her first time writing or joining a dissent from the denial of rehearing en banc, it makes a fair amount of sense to have her author the thing. After all, it highlights the importance of the issue to have her author her first-even dissental.

Though having Judge Friedland write the thing (as opposed to any of the other judges who agree with her) does result in one slight complication. Judge Friedland drops a footnote at the outset of her opinion noting that she doesn't generally think that dissentals have a point, which is why she has never signed onto one previously. The seven other judges who join her agree with her on the merits, but not with respect to this footnote. So every other judge joins her opinion, but expressly notes that they don't agree with this particular footnote. (A complication that could have been avoided had someone else written the opinion and then had Judge Friedland join that opinion with the slight addition of her supplemental footnote.)

Still, a big day for Judge Friedland, and a way to rock in 2024.

P.S. - She almost made it a full decade. She joined the Ninth Circuit in April of 2014. If the case had taken just a few more months to resolve, Judge Friedland could have opened her opinion with "In over a decade on the bench . . ." rather than "In nearly a decade on the bench. . . ."

So close.

Thursday, December 28, 2023

Rodriguez v. Garland (9th Cir. - Dec. 28, 2023)

This opinion isn't at all about delay. But the factual background of the case struck me as similar to what you typically see in death penalty cases; e.g., tons of delay, even though the government theoretically has a strong interest in getting these cases resolved expeditiously. (For death penalty cases, in having the death sentence carried out promptly rather than 30 or 40 years later; for removal cases, in having the individual deported swiftly rather than a decade-plus later.)

Here's how the Ninth Circuit recounts the facts:

"On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. . . . DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

On March 27, 2015, the immigration court issued a notice stating that Rodriguez’s first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge. . . . 

The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ’s directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez’s application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017— three weeks before the already twice-rescheduled hearing was to take place—the immigration court sua sponte rescheduled Rodriguez’s proceedings a third time, for December 13, 2017.

At the December 13, 2017 hearing, the IJ asked Rodriguez’s counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez’s medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez’s forthcoming applications for relief for November 6, 2018. Because Rodriguez’s merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018."

I'll leave out the rest, though will note that (1) Rodriguez allegedly entered the US in 2010, (2) the Department sought her removal in 2014, and (3) it's now 2023 -- and about to be 2024. (Oh, and the Ninth Circuit remands the case, so there's still a lot left to do.)

I would think that if one (or both) sides of the political spectrum wanted to get serious about removal -- as opposed to just perceptually "getting tough" (or doing nothing) -- one fairly achievable (maybe even bipartisan?) solution would be to hire more immigration judges to reduce the backlog. A ton of 'em. The Congressional Research Service recently said that we'd need to at least double the number of judges -- i.e., add 700 more IJs to the 649 currently on staff -- to clear the existing backlog by 2032. Admittedly, I don't practice immigration law (except for isolated pro bono matters), but the kind of delay I get to see from the outside seems fairly intolerable. You'd think that people could agree on doing something about it. Maybe even people whose political interests or desires normally compete with each other.

Or maybe not.

Wednesday, December 27, 2023

U.S. v. Galecki (9th Cir. - Dec. 26, 2023)

You've probably read about "spice" in news reports, or (perhaps) seen it in head shops. (Have I just dated myself by saying "head" shops instead of "smoke" shops? Probably.) At some level, I knew that the stuff was illegal, and that the fake "Not for Human Consumption" labels don't really work to immunize the manufacturers from legal liability. Yeah, you can say it's just "potpourri" for "making the house smell nice," but you sell it in smoke shops, not Target. Oh, yeah, and it's like a hundred times more expensive than actually potpourri. Everyone knows full well that people exclusively buy it to smoke it and get high.

So, yeah, I knew all that, and at some level, I knew that the manufacturers of the stuff might perhaps face some criminal liability at some point.

But I definitely didn't know that getting convicted earns you twenty years in federal prison.

All that money you made selling the stuff not really worth it at that point, eh? (Not to mention the moral cost.)

Friday, December 22, 2023

People v. Ramirez (Cal. Ct. App. - Dec. 22, 2023)

Before today, the police were generally only authorized to do those things that were actually spelled out in the court's warrant. So if the warrant said, for example, "The police are hereby authorized and instructed to search the house," the police could only search . . . the house.

But, today, the Court of Appeal holds that that's no longer the case. Rather, as long as the warrant says (as they all do) that the "facts in support of this warrant are contained in the Statement of Probable Cause and any exhibits, which are attached hereto and incorporated by reference," and the probable cause statement asks for something additional -- something that's NOT actually ordered by the warrant -- that's fine too.

So, here, the police asked the court to allow them to use the suspect's finger to unlock the computer, but the warrant didn't actually say "Yes" or "No" to that. No bother. It was in the probable cause part, so it's allowed.

That's not how we traditionally view warrants. They're technically orders from a court, and you're only ordered to do what they actually order you to do.

No longer, I guess.

Thursday, December 21, 2023

Elden v. Nirvana LLC (9th Cir. - Dec. 21, 2023)

Spencer Elden gets photographed as a four-month old baby as he's swimming naked in a pool. Nirvana uses that photo in its iconic album cover, which depicts the baby -- including its penis -- swimming towards a hundred dollar bill on a fish hook. 

Mr. Elden has been trying to cash in on that cover through litigation for years. His present lawsuit says that the cover is child pornography, so he sues under a federal statute. The district court dismisses the lawsuit on statute of limitations grounds, but the Ninth Circuit reverses, and Judge Ikuta seems right when she says that every republication of the cover (some of which occurred within the current ten-year SOL period) creates a new accrual.

So Mr. Elden gets a remand.

Though it seems to me that he's going to lose on the merits, likely on a Rule 12(c) or MSJ (or, perhaps, at trial), because that album cover isn't "child pornography" under the relevant federal statute, which is defined as "the use of a minor engaging in sexually explicit conduct." Since, in my view, a photo of a naked baby swimming in a pool isn't a photo of a minor engaging in sexually explicit conduct. 

Particularly in the context of that baby allegedly swimming towards money on a fish hook.

I get that that's the next stage of the litigation, and not at issue in the present appeal.

But it's next.

Tuesday, December 19, 2023

Miller v. PG&E (Cal. Ct. App. - Dec. 19, 2023)

I'm seriously thinking that Justice Petrou might have a future career as a short story author. Check out the third paragraph of today's opinion:

"It was a typical Saturday evening in the neighborhood. It had drizzled earlier in the evening and the night sky was dark, foggy, and misty. The sidewalk was wet and crowded with people."

I'm so excited to hear what happened next!

(Actually, the only thing that transpired was that a woman tripped on a metal plate that was covering one of PG&E's underground utility vaults. Not that thrilling. But I'm confident that Justice Petrou's next short story will be exponentially more exciting.)

The prior opinion was unpublished, but today, she published the thing. Which, of course, makes her a . . . published author.


People v. Diaz (Cal. Ct. App. - Dec. 18, 2023)

Justice Wiley authors a lengthy opinion (for him) that discusses and applies 22 pages of legal doctrine. But I can summarize the key practical lesson that I garnered from the thing in a single sentence:

Don't commit a cold-blooded murder in broad daylight with witnesses if you have a very distinctive neck tattoo.

Otherwise they'll pretty much almost certainly catch you and throw you in prison for life.

As here.

Monday, December 18, 2023

People v. Rojas (Cal. Supreme Ct. - Dec. 18, 2023)

To be honest, when I first read the question presented, I thought I was going to come out the other way in this one.

Proposition 21, adopted in 2000, increased the penalty for gang-related murders and mandated the death penalty or LWOP for anyone convicted of murder while "an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22" (if committed to further the gang). Prop. 21 also says that it can't be amended except by the voters or by a two-thirds vote of the Legislature.

So here's the question: Can the Legislature narrow the definition of a criminal street gang in Section 186.22 for purposes of Prop. 21 without a two-thirds vote? (Which is what the Legislature indeed purported to do, by majority vote, in 2021.)

The typical rule here is that if a statutory reference to another statutory provision is specific, then the definition embodied in that second provision is "locked in" as of the date of the second statute's passage for purposes of that subsequent statute. Whereas if a reference is "general" -- for example, to the entire body of common law, or something like that -- then the reference isn't locked in, and can change over time.

When first presented, I thought the Attorney General would have the better of the argument here. The reference in Prop. 21 seems awfully specific to me. Indeed, I can't think of anything much more specific. So it seemed to me like the voters wanted that definition locked in.

Which is how I would have probably come out in this one. Which in turn would have meant that I'd have written a solo dissent, since the California Supreme Court unanimously comes out the other way.

Except for one thing. Something that, for me, is dispositive. Something that, for better or worse, I learned only more than halfway through Justice Liu's opinion.

Here's the thing that changed my mind.

In a couple of places in Proposition 21, it expressly locks in existing law. For example, Section 14 of the proposition, which involved a change in the "three strikes" law, reads: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." Similarly, Section 16 of the thing says: "Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."

That makes a huge difference to me. The people who wrote Prop. 21 knew full well how to lock in the existing statutory definitions when that's what they intended. They did so in multiple places, but not here. That's pretty damn good evidence of their intent, in my view.

So if that's their intent, as evidenced by the statutory text itself, I'm cool with that. That's the right way to view the statute, and that's the way I'd interpret it.

Which is why, in the end, I'm on board for the California Supreme Court's opinion.

Mind you, it's still somewhat tough to square that decision with precedent, which has found statutes "specific" (and hence locked in) in a wide variety of settings that look pretty darn similar to the case here. Similarly, I'm not really sure that Justice Liu's opinion really ever persuasively responds to what seems to me the obvious policy argument, which is that if the Legislature can narrow the scope of the gang definition, then the two-thirds requirement is essentially meaningless, since the Legislature could essentially repeal Prop. 21 entirely by changing Section 186.22 to define a gang in such exceptionally narrow terms that it never applies -- thus making Proposition 21 entirely moot.

Those are still problems for me, and serious ones.

But, hey, the people who write propositions are typically super smart. If they write the thing so that various definitions are expressly locked in, whereas others aren't, well, I'm going to operate under the assumption -- an entirely reasonable one, IMHO -- that this decision was deliberate, and interpret the statute accordingly.

Makes sense to me.

Thursday, December 14, 2023

People v. Lagunas (Cal. Ct. App. - Dec. 12, 2023)

Defendant is driving drunk, fails to negotiate a turn, and runs over and kills a six-year old girl. Pretty egregious. He's charged with second degree murder. He wants the jury to be instructed on gross vehicular manslaughter while intoxicated, which is a lesser offense, and of which he's pretty clearly guilty. But the California Supreme Court has said that even though you generally have a right to have the jury instructed on lesser included offenses, gross vehicular manslaughter while intoxicated isn't a lesser included offense of second degree murder because the former requires that you be driving whereas, in other types of cases, you can be convicted of the latter without driving a vehicle. Never mind the fact that, here, there's zero doubt (or dispute) that the defendant was driving, and that's the only way he can be convicted.

Defendant gets convicted at trial, and sentenced to 15 years to life. He reiterates his challenge to the failure to instruct on lesser included offenses, and the Court of Appeal -- not surprisingly -- follows the California's Supreme Court precedent. But adds the following:

"Lagunas argues: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Lagunas claims the prosecution “engineered an all or nothing case by only charging second degree murder, betting that no jury would let appellant walk free after causing the death of an innocent little girl.” We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature."

Which is, I guess, theoretically true -- once the California Supreme Court decides something, barring its reconsideration of this issue, the only thing left is to ask the Legislature to change the law.

But I'm fairly sure that the class of people who drive drunk and kill people don't exactly have awesome lobbyists in the California Legislature. Even if they did, I strongly doubt that, regardless of the merits of the argument, many elected officials would be super interested in legislation that might perhaps benefit individuals who drunkenly killed little girls. Which is not exactly what you want as your campaign slogan, and what you're probably hugely worried might be your electoral opponent's campaign slogan against you.

But as a "Talk to the hand" argument, sure, it doctrinally works.