Friday, February 03, 2023

People v. Fernandez (Cal. Ct. App. - Feb. 1, 2023)

I've attempted in vain to think of a legal issue more depressing than the one squarely presented by the competing opinions in this case, which solely involves the following issue:

Was the evidence here sufficient to support an inference that the defendant intended to kill his 13 week old baby when he tortured him?

Everyone admits the baby was (allegedly) killed. Everyone admits that the baby was (allegedly) tortured. The only question is whether the evidence is sufficient, at this stage, to prove that the father intended to kill the baby during the torture that was inflicted upon him.

Justice Raphael, joined by Justice Menetrez, thinks it was. He says (in summary) that "It is rational to infer that a person who, over a few weeks, struck an infant in ways that broke most of his ribs, fractured his skull, wounded his brain recurrently, and induced head-to-toe bruises “could not have been unaware” that death could result from the blows. This is a rational ground for concluding that Fernandez intended to kill Marco when torturing him." (citations omitted)

Justice Ramirez, in dissent, thinks it wasn't. He says (in summary) that although "[t]here is no debate defendant tortured the baby with continuing pain-inducing acts," the "the only act described in evidence [that resulted in the baby's death] was the act of throwing the child onto a bed, after which the child fell or rolled onto the floor," and the fact that the child suffered horrific other injuries didn't establish that there was an intent to kill the baby at the time of those other injuries.

I'll not recount the horrible, horrible injuries to the baby. As I said, they are incredibly depressing. It's a 13-week infant, after all. You can read all about them in the opinion, if you'd like.

But I don't recommend it. It's stuff difficult to forget. (Especially alongside the dissent's comparison to other -- even more egregious cases -- involving other alleged torture-related deaths of infants.)

Thursday, February 02, 2023

People v. Cress (Cal. Ct. App. - Feb. 2, 2023)

This amendment says, in its entirety:

"The opinion filed in this matter on January 9, 2023 is modified as follows: On page 1, following “Judith C. Clark, Judge,” strike the sentence in parenthesis that reads, “(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)” Except for this modification, the opinion remains unchanged. This modification does not effect the a change in judgment. CERTIFIED FOR PUBLICATION."

Whoops. Sorry about that, Judge Clark. (Who's not only still on the bench in Riverside, but who was in fact recently elected as the presiding judge over there.)

Monday, January 30, 2023

Travis v. Brand (Cal. Supreme Ct. - Jan. 30, 2022)

Ordinarily, I could easily see why appellants prosecuted this petition for review in the California Supreme Court. They lost, after all, in the Court of Appeal. Moreover, they not only persuaded the Cal Supremes to grant review, but also won on the merits.

I nonetheless think that it was probably the wrong strategic decision. A pyrrhic win.

Two citizens file a lawsuit under the Political Reform Act regarding a particular initiative in Redondo Beach. After a five day bench trial, they lose. The trial court awards defendants their costs and attorney's fees, finding that the lawsuit "was frivolous, unreasonable and groundless." The trial court also finds that the two citizen plaintiffs were mere "shills" for a variety of (rich) nonparties, and holds those nonparties liable for the attorney fee award as well.

Plaintiffs and the nonparties appeal. The Court of Appeal finds in favor of the nonparties, holding that they can't be found liable for the award since they weren't parties. Due process and all. That's final at this point; no one appeals.

As for the actual two plaintiffs, however, the Court of Appeal affirms the fee award. There were two statutory bases for the trial court's fee award: Government Code 91003 and CCP 1021.5. The Court of Appeal holds that it doesn't have to decide anything about the latter because the former is sufficient to affirm. Plaintiffs argued that fee-shifting under the Political Reform Act should be asymmetrical, with awards (as here) to the defendants only if the lawsuit was frivolous, but the Court of Appeal held that it wasn't, and that whomever was the prevailing party -- here, defendants -- could be awarded fees.

Plaintiffs petitioned for review, the California Supreme Court granted it, and in today's opinion, agrees with the plaintiffs that the Court of Appeal applied the wrong legal standard since (on the merits) 91003 is indeed asymmetric, and on that basis reversed and remanded.

So Plaintiffs win. 

Seemingly, anyway.

The thing is, though, I don't think they really do. First of all, they're almost certain to lose on remand. The trial court found that the lawsuit was "frivolous, unreasonable and groundless." My bet is that the Court of Appeal, on remand, will affirm. Which means that even under the Supreme Court's new legal standard, Plaintiffs will still be liable for fees.

And even if that's not true, there's still the alternative basis of the trial court's holding: 1021.5. Plaintiffs might well still be liable under that theory as well.

So Plaintiffs had to spend the time, effort and money to (1) file a (quite uncertain) petition for review, (2) once it was granted, file briefs on the merits, and argue the case, and (3) now, on remand, have to pay further costs and fees to argue the thing again in the Court of Appeal. Plus whatever ancillary proceedings (another petition for review?!) anyone might want to file.

That's a lot of scratch. Likely for nothing, since the outcome will likely not change.

Now, look, it's a big fee award: nearly $900,000. So, normally, one might perhaps make the call that even a low probability of reversing a $900,00 award is worth it. (Though if you're fees on appeal are something like $250,000, or if you bear the risk of adding another $200,000 to the fee award for the defendants' costs and fees on appeal, that might well change your calculus, no?)

But the two plaintiffs here are just two everyday Redondo Beach residents. Plaintiffs are Arnette Travis and Chris Voisey. Do you really think defendants are going to get any actual money out of these people at the end of the day? Much less $900,000?

I don't. They'll go bankrupt, or just avoid paying. Spending an actual $200,000 fees -- or whatever -- to try to get out of a practically nonenforceable judgment for $900,000 generally seems irrational to me. Not a particularly good use of resources.

Now, I get it: the two citizens here are (allegedly) mere shills for larger (much richer) people -- the nonparties who were originally held jointly liable for the fees. But the rich nonparties are already off the hook after the Court of Appeal's holding. And, sure, you might feel sort of bad leaving your two (alleged) shills holding the bag after you got 'em spanked for a $900,000 fee award.

Still. Dumping $200,000+ down the drain to likely get the exact same fee award (or more!) on remand likely seems unworth it. Just tell the two people that you'll help 'em go BK and/or pay whatever blood the defendants successfully get from the plaintiffs' respective stones. If anything. That might be a more practically effective solution.

But whatever. I get it. Rich people have money. They can spend it on whatever they like. And if they choose to spend it on lawyers, all the better for us, right?

That just might not be the economically rational call.

Or even close to one.

Friday, January 27, 2023

People v. Bolanos (Cal. Ct. App. - Jan. 27, 2023)

Carolos Bolanos did a lot of bad stuff, for which he was (for the most part) validly convicted. So bad that he was sentenced to life in prison without the possibility of parole. With the sole exception of a relatively minor conviction (in the scheme of things) for car theft, the Court of Appeal affirms.

So this 22-year old will spend the rest of his life in prison, for forcible sexual offenses against two victims and defrauding a third.

Whether that's a just sentence is a separate issue. The only question I have is about a single line in Justice Snauffer's opinion, about the fraud/theft office. Page four reads:

"Victim three agreed to sell her car to Maritza Martinez. At the last minute, victim three was told Bolanos would meet her instead. Bolanos showed up, test drove the car, and then victim three signed over the “pink slip ….” After signing over the “pink slip,” Bolanos handed victim three fake money concealed in an envelope. Victim three exited the car, ultimately realized the money was fake, and Bolanos drove off the with car."

The third sentence is a tiny bit confusing, though I think I understand it (maybe). It says that "Bolanos handed victim three fake money concealed in an envelope." At first, I thought that Justice Snauffer meant to say that the victim was handed three fake money orders, with the last word inadvertently omitted. But, no, it's "victim three" and "fake money." But I'm not a thousand percent sure what the Court of Appeal means by "fake money." Does that mean counterfeit money -- which is the term we usually use for that sort of thing? Or something else?

I looked it up, and it seems like the Court of Appeal has used the term "fake money" on a least a few occasions previously. So maybe it's just an alternative term for "counterfeit money." 

Though maybe it means movie prop money, or something like that? Who knows.

Still, I get it. Not actual money. Fake.

A minor offense in the scheme of things for which Mr. Bolanos was convicted, but still. Illegal.

Wednesday, January 25, 2023

Preciado v. Freightliner Custom Chassis Corp. (Cal. Ct. App. - Jan. 24, 2023)

Sometimes lawyers win cases because the case is good, even if the lawyer's not.

Sometimes lawyers loses cases because the case is bad, even though the lawyer's good.

These are simply the facts of life. The merits matter. A ton.

But, sometimes, lawyers lose cases even though the case is good. In my mind, this is one of those cases.

It's a fairly high-value personal injury case. There's a bus accident on I-15 that kills one of the plaintiffs and injures another. These two plaintiffs sue several different defendants in San Diego for that accident, including but not limited to the manufacturer of the bus chassis. Defendant moves to quash, saying that it's a Delaware company with its principal place of business in South Carolina and doesn't have the required minimum contacts with California sufficient to create personal jurisdiction.

The trial court grants the motion to quash, and the Court of Appeal affirms.

My view, by contrast, is that there's very likely personal jurisdiction in California.

The weird thing is that these two statements are not necessarily inconsistent with each other.

Justice Irion's opinion is pretty darn good, honestly, in setting forth and evaluating the often-difficult issues that arise when dealing with specific jurisdiction disputes like this one. Okay, maybe the reader could have done without the page and a half about general personal jurisdiction, because obviously that doesn't exist, and no one (as far as I can tell, anyway) is even arguing that it does. But whatever. That's a nit. On the merits, I like a ton of what Justice Irion says.

Now, I think Justice Irion may rely in part slightly too much on the Supreme Court's opinion in Ford Motor Company than is due. Yes, Ford Motor Company tells us what's sufficient for jurisdiction. But it doesn't demark the boundaries of what's insufficient. For that, at least for "stream of commerce" cases like the one at issue here, you've got to go back to the Supreme Court's opinion in Asahi. And that's one's a 4-4-1 opinion. Justice Irion cites Justice O'Connor's 4-vote opinion in Asahi, and rightly so; if the defendant here did any one of the things listed therein, then, yep, there's personal jurisdiction. But 4 justices agreed with Justice Brennan that knowledge of your product ending up in the forum state -- which virtually certainly existed here -- was good enough even without the "additional conduct" listed by O'Connor, and Justice Steven says that knowledge plus a certain number of continuous sales gets his vote too, resulting (as there) in a majority on that score. So the opinion is a little quick to jump to the belief that you've got to prove something more than knowledge; I'm not sure that's (entirely) right.

But Justice Irion is right that if you've got one of the types of additional conduct, then there's personal jurisdiction, but that (as Ford Motor Company and BMS suggest) you've got to make the appropriate focus on which types of products you're talking about. It makes a difference if it's the exact same model or chassis type that's in the forum, or an entirely dissimilar model, or something in between.

And on that point, the Court of Appeal's opinion is right: we don't have much here. Because while the plaintiff's attorney has submitted a variety of printouts from the Internet about what the defendant says about the extent of its sales, there are a lot of details we don't know. Is it the exact same type of chassis? Do the other types of chassis that the defendant sell have similar problems? Sure, there are apparently service stations in California, but what precisely is the defendant's relationship with them, and do they serve this type (or a related type) of chassis? What's the scoop.

We don't know. Because (1) plaintiff doesn't know yet, since it hasn't conducted discovery, and (2) plaintiff didn't either (a) propound discovery on these jurisdictional issues before the motion to quash was heard (despite propounding discovery on the merits), or (b) give the court details in its opposition to the motion to dismiss about precisely what discovery it was going to seek and what it thought might be thereby revealed that would compel denial of defendant's motion.

That's a problem. I strongly, strongly suspect that if counsel for plaintiff had been specific, the trial court and/or the Court of Appeal would have allowed jurisdictional discovery. Moreover, in my view, I very much believe that this discovery -- properly argued -- would have demonstrated that the defendant was, indeed, subject to jurisdiction in California.

But that didn't happen. Not because the facts were bad. I bet they were good. It's just that the lawyer for the plaintiff didn't obtain and submit them -- or even submit a concrete plan to the court for getting 'em.

Two lessons, I think, can be derived from this opinion. One specific, one general.

First, if you're a plaintiff and want jurisdictional discovery, be specific. Submit particular discovery requests that you want to propound and say what you think you're going to discover from them. Or, better yet, go ahead and propound 'em before the motion to dismiss is heard (indeed, even before you file your opposition). The Court of Appeal and trial court both seemed to put a fair amount of weight on the fact that the plaintiff here propounded tons of discovery before the hearing on the motion to quash but all about the merits, not jurisdiction. That's a bad look. It resulted here, in my view, in losing a motion -- in a high-value case, no less -- that should have been won.

Second, more generally, even if you're a super good lawyer, know your respective lane. By all accounts, counsel for plaintiff here is a fairly sophisticated (or at least successful) personal injury lawyer. Great. You're good at getting clients, negotiating settlements, and perhaps evoking sympathy from a jury. Those skills are incredibly valuable.

But that doesn't mean that you're necessarily Mr. Personal Jurisdiction. That's an important piece of the case. Critical, even, for getting this particular defendant on the hook. You gotta recognize that. Which in turn means thinking about bringing in someone who might be better than you (or at least more familiar with) these types of doctrinal fights. Otherwise, you risk results like the one that transpired here.

Maybe this particular defendant wasn't important enough to really focus on. Maybe plaintiff didn't really care if the manufacturer was left off the hook.

But it seems like a fairly big-ticket case, where one of the plaintiffs died and the other was presumably non-trivially injured. And the defendant definitely has deep pockets, plus insurance.

Probably worthwhile to make the hard core effort, and to make sure it's done right.

Monday, January 23, 2023

People v. Waldon (Cal. Supreme Ct. - Jan. 23, 2023)

Billy Ray Waldon seems to have committed a wide variety of murders (or at least so the jury found) in San Diego and, perhaps, elsewhere. He's not a guy, quite honestly, that I want back out on the street.

If I'm totally honest: Ever.

He's also fairly clearly got mental difficulties. Not that he's not seemingly quite smart. But he appears very much delusional. For example: "Waldon represented himself at trial. His defense was that federal agents framed him for the charged crimes to thwart his efforts to promote world peace, spread new languages, and advance Cherokee autonomy." 

More details, you ask? "Waldon claimed that he met a man named Mark Williams who kept appearing in various locations in Italy, Germany, and California, where Waldon was pursuing his education and activism. Waldon believed that Williams and another man were CIA agents who were monitoring him. . . . Men wearing ski masks and shirts that said “Federal Agent” joined Williams in beating Waldon; they cursed Poliespo and Waldon’s promotion of Indian autonomy. The men bound Waldon, took him away in their van, and kept him chained to a chair with a plastic hood over his head. Waldon managed to escape but learned from a news article that he was wanted for murder. He lived as a fugitive in a crawl space under a house in Imperial Beach, fearing that he would be convicted despite his innocence if he turned himself in."

To the surprise of no one (except, perhaps, Mr. Waldon), the jury rejects this defense and sentences Mr.Waldon to death for the murders.

The California Supreme Court unanimously reverses. Mr. Waldon shouldn't have been allowed to represent himself at trial.

It's hard to argue with that result. We don't want delusional people defending themselves. Lest we potentially put innocent people to death.

Which is not to say that Mr. Waldon is necessarily innocent. I strongly suspect he'll be found guilty at his retrial. In any event, he's been in prison forever. The murders at issue here were committed in 1985. That's nearly 40 years ago. It seems like he's been in prison since then on these charges, and the appeals have taken this long already. So now they'll be a retrial, more appeals, etc.

Mr. Waldon's already 59 years old. He's going to die in prison one way or the other, I believe. We're just shuffling paper around to make sure that everything goes as it should. (Eventually.)

One last thing. When someone files something like this, that's a pretty good indication that a guy might not be "all there" sufficient to allow the guy to defend himself in a capital murder case:

"In a December 1988 petition filed in propria persona, Waldon asked to represent himself “with full assistance of counsel” required to “obey” him. He stated that if his request were denied, he would seek to waive counsel and represent himself. In the nearly 100-page petition, Waldon complained of the “rampant sexual promiscuity” of his “omnivaginal” former trial counsel, alleging that counsel engaged in domineering sexual practices; sexual relations with inmates, judges, and prosecutors; drug dealing and Mafia involvement; and efforts to have a hit man kill him, among other menacing, unlawful, and sexually motivated conduct. Waldon claimed that counsel was “a brilliant and extremely dominating man, trapped in a woman’s body,” and that she tried to seduce him out of selfrepresentation by exposing her breasts to him."

Yep. Sounds persuasive to me. Definitely a guy I want representing himself in a life-or-death dispute.

Friday, January 20, 2023

People v. Morgan (Cal. Ct. App. - Jan. 20, 2023)

My first reaction to this case was: "Oh my. If you've been previously convicted of involuntary manslaughter for killing a guy -- while intoxicated, no less -- can you please not drive with a .BAC of .25?! You'd think you've have learned your lesson, no?"

Which, to be clear, remains my view.

That said, it's true that, here, the whole "killing the guy" thing happened literally 40+ years ago, when the defendant was only 19 years old. So, yeah, that's a long time ago.

Still. Definitely something you'd remember. The lesson shouldn't exactly fade.

Also, later in the opinion, when I learned that the now-somewhat-elderly defendant was picked up riding a motorcycle, I thought: "Well, at least he's riding a motorcycle instead of driving a car; that way, he's less likely to kill someone this time, and most likely just ends up killing himself. So that's something."

Which is true. Not a legal or moral defense to a DUI, obviously. But something.

Lastly, in the end, on the merits of the appeal, Justice Buchannan seems right. The relevant California statute says that a DUI gets transformed from a misdemeanor to a felony if the defendant has previously been convicted of certain specified offenses, including (as relevant here) Penal Code section 191.5, subdivision (a), which is gross vehicular manslaughter while intoxicated. But the defendant here (Mr. Morgan) wasn't convicted of that; rather, he was convicted of "vehicular manslaughter caused by unlawful exhibition of speed (former Pen. Code, § 192, subd. 3(a); Veh. Code, § 23109) and DUI (former Veh. Code, § 23101, subd. (a)), neither of which is listed as a qualifying prior for elevating a DUI to a felony under Vehicle Code section 23550.5, subdivision (b)." Those are different offenses than 191.5(a); indeed, 191.5(a) wasn't even enacted by the Legislature until 5 years after Mr. Morgan was convicted.

Mind you, the combination of the offenses for which Mr. Morgan was convicted (vehicular manslaughter plus DUI) seem pretty much identical in substance to the subsequently-enacted statute (191.5) that entitles the prosecution to elevate Morgan's current DUI to a felony. True that.

But as Justice Buchanan explains, the statutory language is nonetheless clear. It lists the qualifying convictions. Mr. Morgan's convictions aren't amongst those listed. That's pretty much the end of the matter. So Mr. Morgan's current DUI remains a misdemeanor rather than a felony.

Which -- as a reminder -- doesn't mean that it's a good idea.

But it's not a felony.

Wednesday, January 18, 2023

Adanna Car Wash Corp. v. Gomez (Cal. Ct. App. - Jan. 18, 2023)

Today's Court of Appeal opinion doesn't involve anything that's earth-shattering or critically important to society as a whole, and instead involves whether an appeal bond in a case involving alleged Labor Code violations can be satisfied by a different type of preexisting bond that's required of all car wash operators. Thus, unless you own a car wash (and allegedly stiff your employees out of overtime), the opinion isn't one that's likely to be of central importance to your being.

Perhaps for that reason, Justice Baker's concurrence was perhaps especially interesting. The concurrence says, in its entirety:

"Although I do not subscribe to all the particulars of the majority’s published opinion—which in several respects goes beyond what was presented to us in the briefs filed by the parties, I agree the result reached by the trial court should be affirmed."

I thought that was interesting because I suspect that a lot of justices on the Court of Appeal often share the exact same sentiment about some -- perhaps many -- of their colleague's opinions, yet join them in full. So I found it unusual that Justice Baker wanted to express the point in, of all opinions, this one.

Usually the informal give-and-take amongst justices on a panel obviates at least the perceived necessity for a concurrence like this one, at least in your run-of-the-mill type of dispute.

Not so here.

Thursday, January 12, 2023

People v. Superior Court (Cortez) (Cal Ct. App. - Jan. 12, 2023)

If you're in jail, and I'm your attorney, please do not send things to me in envelope marked "Legal Mail" if they have previously been up your butt. Or anyone else's, for that matter.

Including but not limited to "kites" that aren't intended for me and that are marked "Do Not Read."

Seriously, I only want actual legal mail.

P.S. - Those kites aren't privileged. If they're for someone else and I'm not supposed to read them, they're not attorney-client communications.

Wednesday, January 11, 2023

U.S. v. Munoz (9th Cir. - Jan. 11, 2023)

I'm admittedly unsophisticated when it comes to the criminal possession of handguns by felons. But if you're carrying three handguns in your vehicle, why make one of them a "ghost gun" (e.g., one made of polymer and that doesn't contain a serial number)?

I can see why someone might want a ghost gun; that way, it can't be traced. But if the other two guns that you're carrying can be traced, doesn't that somewhat defeat the purpose of the third weapon?

I guess you could be selling the guns or something like that. Personally, though, I'd just stick to carrying either (1) regular old handguns, or (2) ghost guns. No mix-and-match.

Monday, January 09, 2023

People v. Cheek (Cal. Ct. App. - Jan. 6, 2023)

A sex offender is about to be released from prison. They're proposing to let him live someplace near you. You and your neighbors -- perhaps not surprisingly -- are not psyched about that. At all.

One rule about sex offenders is that they're not allowed to live within a quarter mile of a school.

Does this strategy work: Once you find out where he's planning to live, have you or one of your neighbors -- someone who lives within a quarter mile of his proposed residence -- start "homeschooling" their child in their residence. Thereby transforming the home into a "school" and stopping the sex offender from the ability to live in your neighborhood.

What do you think?

Justice Grover says: "Yep, that strategy works. It's now a school, so he can't live there."

Justice Lie says: "Nope, that doesn't work. That's not what we mean by a school."

Justice Greenwood agrees with Justice Grover, so that's now the law.

Which provides a fairly healthy -- and successful -- way to NIMBY your way out of a sex offender living in your neighborhood, eh?

Now, in turn, that means it'll probably be even more difficult, if not impossible, for the state to find a place for those convicted of sex offenses to actually live. Especially once people start realizing how easy it is to employ this artifice.

But Justice Grover says that's the Legislature's problem, not the judiciary's.

I'll add only one other thing, which neither opinion mentions, but nonetheless seems obvious to me. This trick works even with the most minimal of efforts. It doesn't have to be a "school" for anyone other than a single kid (e.g., your own). And once you've created that "school" and the sex offender is then placed in a different neighborhood -- one where the parents aren't nearly as creative as you are -- then, boom, you can stop homeschooling your kid and put them back into a "regular" school. You just gotta have that "school" for the brief moment when they're actively trying to place someone there.

Seems like a fairly effective machination, eh?

Wednesday, January 04, 2023

U.S. v. Knight (9th Cir. - Jan. 4, 2023)

The holding of today's Ninth Circuit opinion seems right to me, but I might have expressed the same view in a slightly softer tone.

A juror's wife gets sick in early 2021, and since it's the middle of the pandemic, people freak out that the wife -- and, by extension, the juror -- might have COVID. One option is to excuse the juror, but another is to have the juror temporarily view the trial remotely. The government isn't keen on that idea, but defendant is psyched for it, and the trial judge (Judge Du, in Nevada) thinks it's the best option. So Judge Du makes a very clear record that the defendant wants the juror to stay and to view the proceedings remotely, and the juror then does so for a couple of days, thereafter returning to participate in jury deliberations, ultimately resulting in a unanimous guilty verdict.

Defendant then appeals, claiming that the juror shouldn't have been able to remotely view the trial for those two days.

That's a tough sell, of course, since the defendant himself was totally in favor of the procedure that the district court employed. Doctrinally, however, if remote viewing is a "structural" error, then the fact that the defendant consented doesn't matter. So the question then becomes whether or not having jurors view a trial remotely is a structural error, or whether (instead) they have to specifically show prejudice.

The Ninth Circuit says that structural errors are rare, and that's true. But they exist. Things like not having a lawyer, not having a public trial, not being able to represent yourself, etc. We call those things types of "structural" errors in part because they're fundamental, and in part because it's super hard to demonstrate particularized prejudice from their denial. Take the right to a public trial, for example. There's no way that a criminal defendant will ever be able to show "prejudice" from keeping out the public, since the evidence and facts would presumably all remain the same. So if we required a showing a prejudice, we would never reverse. So we call these things "structural" and require reversal per se.

Today's opinion holds that having a juror (or jurors) view the trial remotely isn't a structural error, and I can see why that's the case.

But it's a lot closer, I think, than the current opinion might suggest.

Yeah, sometimes, you can identify particular errors with viewing testimony remotely -- for example, if the feed went out or the juror was watching ESPN instead of the trial -- and reverse on that basis. But there are other -- important -- reasons why we want trials to be in person that aren't amenable to similar showings of particularized prejudice. For example, one reason we have in-person trials is because we want the jurors to physically see (and, typically, be in the same room) as the defendant. You're deciding guilt or innocence, and sometimes life or death. (Here, the ultimate sentence is a little shy of 15 years in prison.) That's a fairly personal decision. We want you to physically be there. To show up in the majesty of a courtroom and look the defendant in the eye when you adjudicate their fate.

That's why -- back in the old days -- the Ninth Circuit held, for example, that it was structural error for a jury to sentence someone in absentia, without being physically present. A Ninth Circuit opinion that I happen to know a fair amount about since it was written (way back in 1992) by a judge for whom I was then a law clerk. Now, that particular Ninth Circuit ruling was subsequently overruled by a sharply split en banc opinion written by Judge Kozinski. But the principle remains, and the point is simply that it's a close issue sometimes. Physical presence matters. Sometimes, it's structural. Which is one reason why, for example, we don't conduct in absentia criminal trials (unless the defendant absconds after the trial commences). Some other countries convict people even if the defendant isn't present, on the theory that it doesn't really matter -- e.g., the defendant can't show specific prejudice. We don't.

You can see, I think, the potential parallel between a defendant not being at the trial, on the one hand, and a juror not being at the trial. Are there arguable differences? Of course. And, again, I can see why a panel might hold (as here) that so long as the defendant's affirmatively psyched for it, it's okay to allow a juror to view proceedings remotely for a limited period of time.

Still. It's a close one. So I'd have written the opinion cautiously. Including but not limited to talking about the structural errors of in absentia proceedings in general -- a topic that's entirely omitted from today's opinion.

But, hey, in the end, if you're okay with a juror viewing proceedings remotely for a couple of days, perhaps because you're thrilled to have that particular juror stay on the jury rather than be excused for cause, feel free. I'm okay with that. Your call.

Tuesday, January 03, 2023

Griego v. City of Barstow (Cal. Ct. App. - Jan. 3, 2023)

It's a new year, but 2023 does not begin with good news for Jesse Griego, who was a captain in the Barstow Fire Protection District until he was fired for various alleged misconduct. The trial court held that the City of Barstow had to reconsider its decision, but the Court of Appeal reverses, holding that Mr. Griego stays fired. 

Which, in truth, is a result that is perhaps not surprising given the various allegations leveled against him. Which include the following:

"Griego worked for the Fire District from 1997 to 2018. He also coached children’s sports teams, including the girls’ softball team at Barstow High School.

In 2007, the Fire District issued a memorandum to its captains directing personnel not to attend sporting events while on duty. On March 23, 2017, a fire chief verbally reprimanded Griego for coaching on duty. Griego was defensive and argumentative. The fire chief told him, “[T]here is no coaching on duty in any capacity. Do not take the engine. Period.” Griego expressed no regret, and later was seen again attending a sporting event while on duty. On March 29, 2017, the chief issued a written reprimand.

Also in early 2017, a safety officer at Barstow High School reported she suspected an inappropriate relationship between Griego and a 15-year-old student, H.S. The officer saw Griego bring H.S. lunch during school hours and H.S. drive Griego’s car. She heard students saying H.S. was wearing Griego’s shirt, the two had adopted a cat together, and they had visited a theme park together. 

The Barstow Police Department opened a criminal investigation into Griego for suspected statutory rape (Pen. Code, § 261.5). The City placed Griego on paid administrative leave, and Barstow High School told him to end contact with the girls’ softball team. Nonetheless, Griego continued to attend practices and games and to communicate with coaches and players, including H.S. . . .

The City’s investigator sustained 19 allegations against Griego. These allegations included, among others, that Griego (1) sought an “intimate dating relationship” with minor H.S.; (2) defied specific directions not to coach while on duty despite multiple warnings; (3) carried a concealed handgun outside his home without a permit; and (4) filed a false court document under penalty of perjury. 

The handgun allegation referred to November 2017, when Griego carried a concealed gun to investigate suspicious people outside his home. A police officer arrived and asked Griego if he had a gun; Griego said yes and showed it to him. The officer asked if he had a concealed carry permit; Griego did not. Penal Code section 25400 prohibits carrying a concealed gun in public without a permit.

As for the perjury, in 2017 Griego’s ex-wife applied for a domestic violence restraining order against him. A temporary restraining order issued in July 2017 included a direction to store any firearms with the police department or a licensed gun dealer. Yet in August 2017, Griego signed and filed a response that declared, “I do not own or have any guns or firearms.” Griego later admitted he had owned guns for about two years. Regarding the false court filing, he said, “I probably didn’t even read that and pay attention to that.”"

Let's face it: those are not great (alleged) facts if you're trying to keep your job. In the public sector or anywhere else.

Wednesday, December 28, 2022

Wehsener v. Jernigan (Cal. Ct. App. - Dec. 28, 2022)

You don't see many intestate succession disputes in the Court of Appeal. And in reading the facts of this one, it definitely harkens back to a bygone era.

The question is whether Judy is the presumed child of Charles. If she is, then she's entitled to a large portion of the decedent's estate. By contrast, if she's not his child, then that portion goes to one of the decedent's first cousins (Wendy).

The decedent died in 2018 in San Diego. Charles was a resident of Indiana and died in 1993. Judy -- the person who may or may not qualify as Charles' presumed "child" -- was born in 1949. Here are the facts about Judy and Charles to which all the parties have stipulated, and that I suspect do not happen much in the present era (having been replaced by formal structures of foster care, court intervention and the like):

"Judy was born on April 6, 1949. Her biological parents were Dorothy Sue Davenport and Henry Lee Hayden. Judy’s biological mother abandoned her and her biological father when Judy was an infant. Judy lived with her biological father until she was two years old.

When Judy was two years old, Judy’s biological father dropped her off with Charles and [Frances], who were then living in Kentucky, and asked them to babysit. Judy’s biological father never returned. Judy continued to live in the home of Charles and Frances for the duration of her childhood.

When Judy was not more than eleven years old, Charles, Frances, and Judy moved to Indiana. When Charles, Frances, and Judy moved to Indiana, Charles and Frances openly held Judy out to be their daughter. School records from Indiana show that Judy was registered with the last name ‘Bloodgood[,’] and as a child of Charles and Frances. Charles and Frances continued to hold Judy out as their daughter for the remainder of their lifetimes. The Last Will and Testament of Charles E. Bloodgood named Judy as Charles[’s] daughter.

Judy is not Charles[’s] or his wife’s biological child, and there is no evidence she was legally adopted. Thus, any purported relationship between Charles and Judy is based solely upon Charles having taken Judy into his home and having held Judy out as his daughter. Charles and Frances knew that Judy was the biological child of another couple. . . .

Because of his own negative experience in the foster care system, Charles chose not to initiate any action to legally adopt Judy. There is no evidence that there was any legal barrier preventing Charles from legally adopting Judy during his lifetime."

The way child abandonment worked in the 1950s in Kentucky is certainly different than how it currently works in the 2020s in California, eh?

As far as I can tell, though, things worked out fairly well for Judy. She had a daughter of her own, and I presume (and hope) that she was loved by her all-but-adopted parents.

Still; having someone drop off their daughter with you for babysitting and then never return. That's got to be a shock at the time.

P.S. - The Court of Appeal agrees with the trial court that California law applies and that Judy is indeed the presumed child of Charles, hence entitled to recover under intestate succession.

Wednesday, December 21, 2022

Bishop v. The Bishop's School (Cal. Ct. App. - Dec. 21, 2022)

As a rule, I don't write about appellate cases in which I have some involvement, on the theory that I'm not neutral, and it doesn't add much to have an advocate state whatever position they might have on an appeal that's already been adjudicated. 

Fortunately, even though I know a fair piece about the underlying events, I didn't participate in any of the resulting litigation, so my rule doesn't apply to this opinion published by the Court of Appeal today. Hence my brief words about it.

It's a case down here in San Diego. It involves -- confusingly -- a plaintiff named Chad Bishop ("Bishop") who's suing a secondary school at which he was a teacher called The Bishop's School ("Bishop's"). So it's tough at times for an outsider to necessarily keep the parties straight.

The case involves a salacious tale of a teacher fired for an allegedly flirtatious text exchange with a 19-year old former student. A text exchange that Justice Buchanan helpfully quotes in full. Check it out on pages 3 and 4 of the opinion.

Chad (Bishop) sues the school (Bishop's) for breach of contract, which is fairly straightforward, as well as defamation for telling parents and a newspaper about the circumstances of the firing. The school files an anti-SLAPP motion, which the trial court grants in part, largely striking the defamation claim but leaving the contract claim. The Court of Appeal substantially affirms, but holding that one portion of the claim for defamation (involving Bishop's termination letter) didn't arise out of protected activity.

Justice Buchanan's opinion accurately resolves the appeal, in my view. Seems fairly straightforward and correct to me. Just two points:

First, this shows the strategic downside of bringing defamation claims. Plaintiff's got a just fine claim for breach of contract, and one that survives a demurrer. The claim for defamation is not only weaker, but also invariably will bring an anti-SLAPP motion. Which will either (1) be successful, thus resulting in a waste of time and money on your end, as well as an award of attorney's fees against your client, or (2) fail, but nonetheless still waste your time and money, as well as likely result in an anti-SLAPP appeal that requires the expenditure of further time and money, as well as delays the lawsuit for a year or two while it sits up in the Court of Appeal.

So think deeply before bringing defamation claims, okay? Even if you think they might survive.

Second, I wonder whether Justice Buchanan might want to consider amending the opinion to refer to the 19-year old female student by her initials, rather than her full name. This near-minor sent drunken texts to one of her older male former teachers at I'm certain she regrets and that ultimately resulted in the teacher getting fired and litigation arise. She's not a party to the appeal and probably would rather not have the opinion -- and the full content of her text exchange -- pop up on the first page every time someone searches her name on the Internet. Yes, she's not technically a minor, since this all transpired months after her 18th birthday. (Hence the allegedly large number of margaritas in Mexico that led to the text exchanges.)

But still.

Seems to me the opinion would be just as readable using her initials or her not-so-unusual first name. (Plus it's got all those confusing "Bishop v. Bishop's" in the thing anyway, so it's not like readability is at a premium anyway.)

So think about that.

FULL DISCLOSURE - All my children either graduated from or currently attend the school at issue (Bishop's), and I previously served alongside the author of the opinion (Justice Buchanan) on the board of directors of a nonprofit entity. But while, as I'm said, I'm familiar with the underlying controversy, I have no stake or involvement in the underlying litigation, nor am I close personal friends with any of the participants. (Though my wife tells me that at least one of our children had the plaintiff as a teacher, a fact I did not recall when I was reading the opinion.)

Monday, December 19, 2022

In re Geoffrey S. (Cal. Ct. App. - Dec. 19, 2022)

It's an important issue, and today's split decision by the Court of Appeal cogently identifies the competing positions. Justice Buchanan writes the majority opinion and says:

In Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550 (Kaiser), we held that hearsay evidence is admissible at a hearing on a workplace violence restraining order (WVRO). (Code Civ. Proc., § 527.8.) Other courts have reached the same conclusion for a hearing on a civil harassment restraining order (CHRO). (Code Civ. Proc., § 527.6; see Duronslet v. Kamps (2012) 203 Cal.App.4th 717, 728–729 (Duronslet); Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521 (Yost).) 

We must now decide the same question for a hearing on a gun violence restraining order (GVRO) under Penal Code section 18175.1 We hold that hearsay evidence is likewise admissible at a GVRO hearing. We further conclude that the evidence submitted to the trial court was sufficient to establish by clear and convincing evidence that appellant Geoffrey S. posed a significant danger of causing personal injury by gun violence.2 (§ 18175, subd. (b)(1).) Because we reject Geoffrey’s other claims, we affirm the oneyear GVRO issued against him."

Justice Dato, by contrasts, dissents, with the following basic position:

"This case presents a classic question of statutory interpretation. When it enacted the gun violence restraining order (GVRO) statutes in 2014 (Stats. 2014, ch. 872 (Assem. Bill No. 1014)), did the Legislature intend that all forms of hearsay evidence should be admissible without limitation in a noticed hearing seeking a GVRO? The Legislature’s intent with respect to the meaning of a statute is not always crystal clear, and in this instance it might be better characterized as opaque. It is therefore hardly surprising that reasonable judges might disagree. 

There is, however, a more fundamental question that will have much to say about how we ultimately decide what the Legislature intended and what the statutes mean. That is because the Legislature itself has provided a framework within which we are to analyze questions about the admissibility of hearsay. Evidence Code section 1200, subdivision (b) succinctly states the generally applicable rule, “Except as provided by law, hearsay evidence is inadmissible.” The issue we must decide is whether, in the case of GVROs, the Legislature has otherwise “provided by law” for an exception. And to determine if the Legislature intended an exception, we must first understand the general rule. 

The rule against hearsay evidence exists for one overriding and crucial purpose: To make sure results in the courtroom are based on the truth. To expose innocent fibs, outright falsehoods, and all types of fabrications in between, witnesses are ordinarily required to personally appear in court, affirm to tell the truth, and be subject to cross-examination. (See California v. Green (1970) 399 U.S. 149, 158.) Courts have long recognized the importance of cross-examination and its crucial role in ferreting out the truth. (In re Brenda M. (2008) 160 Cal.App.4th 772, 777 [“ ‘Crossexamination is the principal means by which the believability of a witness and the truth of his testimony are tested.’ ”].) 

But it is impossible to cross-examine a witness who isn’t there. And in this case, the deputy city attorney who appeared at the hearing merely offered the court San Diego Police Department (Department) reports that memorialized several police contacts with Geoffrey S. at his home over the course of a week in April 2020, near the beginning of the COVID-19 pandemic. In addition to the observations of officers, these reports included statements made by other, sometimes unidentified, persons. They also summarized Facebook posts allegedly made by Geoffrey but did not attach copies. At the same time, the Department’s presentation ignored—or at least significantly downplayed—the numerous factual errors in the psychiatric hospital’s intake report, as well as the fact that the hearing officer who ultimately dismissed the Welfare and Institutions Code section 5150 hold concluded that Geoffrey had “no known history of diagnosis or treatment” for mental illness and “does not have a mental disorder.”

Critically, not a single witness testified at the hearing, not even the officers who authored the reports. The deputy city attorney merely argued that the reports proved by clear and convincing evidence that a one-year GVRO should issue."

Nicely put by both sides, I think.

All that said, this case is from San Diego, and while I won't comment on the doctrinal dispute, I will say that I'm fairly happy that -- at least for a while -- Geoffrey S. won't be allowed to buy any more guns or ammo. (Though the underlying one-year order has apparently expired at this point.) The guy seems to fairly clearly have huge problems, and I say that with full recognition of Justice Dato's point that we're not actually listening to the underlying witnesses, but instead reports that are technically hearsay about what he's allegedly done. Here are some snippets:

"Geoffrey explained to the police that for several weeks, he had been posting on social media about his belief that philanthropist Bill Gates had murdered millions of people. In response, a stranger called him to express his agreement. When Geoffrey asked the person how he got his phone number, the person said it was given to him by God. As a religious person, Geoffrey then invited the person over to his house to talk about their beliefs. The person came over and spent the night. The next day, they talked all day and read Bible verses. The man eventually proclaimed that he was God, got a kitchen knife, and demanded that Geoffrey “ ‘kneel before him.’ ” After Geoffrey complied, the man said, “ ‘I am going to kill you motherfucker.’ ” The man also told Geoffrey he was a “ ‘west coast gangster’ ” and had “been shot and stabbed before.” 

Geoffrey told the police he had “ ‘hunting shotguns’ ” inside his house, but no ammunition. He began talking about his “conspiracy theories” and “distrust of the government.” He explained “his eccentric beliefs about how he didn’t believe the Corona virus was real, how Bill Gates is a murderer and he is trying to vaccinate everyone with ‘nanotechnology’ so they can be tracked by 5G towers” and “claimed he even called the FBI San Diego field office to report what he knew about Bill Gates . . . .”

According to the police reports, “Geoffrey was very animated, agitated and was rambling about a government takeover.” He “believed Bill Gates and the government were using the COVID-19 to scare Americans into receiving a vaccine to infuse trackers” and that “5G cell towers being installed would be used to track everyone with the vaccine.” “Geoffrey would not answer specific questions but would instead go into lengthy rants about various unrelated topics.” He “was exhibiting psychotic and delusional behavior.” “When asked specifically about his quest for ammunitions and his intentions, Geoffrey replied that it was none of our business and quoted his 1st and 2nd amendment rights. Geoffrey became paranoid about where we had received our information and accused us of working with FBI to tap his phone lines. Geoffrey did confirm that he owns several shotguns.” “Geoffrey was aggressive in nature and very confrontational, answering most of our questions with questions and stating we were all stupid. At one point, Geoffrey stood up and began screaming at the top of his lungs, ‘I’m buying ammo and you should too!’ ” . . . . 

The defense exhibits included a psychiatric admission evaluation of Geoffrey and medication noncompliance summary, both prepared by Dr. Samuel Etchie at Alvarado Parkway Institute (Alvarado). The psychiatric admission evaluation (signed April 22, 2020) described Geoffrey’s “delusional beliefs” and his admission to the hospital’s psychiatric intensive care unit after Geoffrey’s pastor and a friend had called 911 to express their concerns about his mental state and social media postings. Geoffrey repeated to Dr. Etchie his theories about Bill Gates and the COVID-19 vaccine. He said: “They have this vaccine and if they are going to force us to take this vaccine then I need to buy ammo and ammunitions to defend myself against the government and protect my family . . . .” Geoffrey also told Dr. Etchie that his pastor, a friend, and his father all “told lies against [him].” 

Dr. Etchie stated: “Upon arrival at this facility . . . , the patient remained with significant risk of danger to others as a result of welldeveloped and well-organized delusional thought processes about the government and various governmental agencies . . . and the philanthropist, Bill Gates, and the current COVID-19 vaccine that is not even available at this time.” “Inpatient psychiatric admission is imperative at this time due to the imminent risk of harm to others and the patient’s ability and wherewithal to purchase arms and ammunitions and to prevent harm to the patient and to others.” “The patient . . . remains with significant risk of harm to others, especially, ‘people from the government and people connected with the Bill Gates vaccine and the FBI.’ ” Dr. Etchie diagnosed Geoffrey with “[b]ipolar affective disorder, mania, severe with psychotic features.” 

In the medication noncompliance summary (signed May 4, 2020), Dr. Etchie quoted Geoffrey as follows: “Everybody’s against me - my deacon, my pastor, my father, my friend, the police, yourself, the nurses and staff in this hospital because of only one reason. I want to defend my Second Amendment rights to defend myself because of all the crazy things that have been started and have been sponsored by Bill and Melinda Gates Foundation to infect millions of Americans with bad vaccine in the name of treating this viral pandemic.” Geoffrey denied any mental illness and refused to take any medication."

Yikes. Geoffrey has some problems, no?

Oh, one more thing. Geoffrey's not homeless or anything. He's got neighbors, Facebook friends, a pastor, etc.

And he's a member of the Ohio bar.

Tuesday, December 13, 2022

CFPB v. Aria (9th Cir. - Dec. 12, 2022)

The factual recitation in Judge Tallman's opinion speaks for itself:

"[Armond] Aria was the founder, owner, CEO, and registered agent of the now-defunct Global Financial Support, Inc. (Global). Operating under the names “College Financial Advisory” and “Student Financial Resource Center,” Global mailed millions of solicitations to current and prospective college students from 2011 to 2016. The solicitation packets contained a letter, an information sheet, a Demographic Form, and a return envelope.

The letters featured official-looking letterhead with college-themed seals and an arbitrary filing deadline. The wording varied from year to year, but the letters generally advised students to avoid taking out loans until they had applied to all of the available “free” financial aid programs. The letters asked students and their parents to disclose basic demographic information in the Demographic Form and pay Global a $59 to $78 “processing” fee. In exchange, the letters vaguely promised to enroll the students in a financial aid program. Meanwhile, the Demographic Form promised “to provide as many targeted financial aid opportunities as possible to each and every student.” In fine print footnotes, the letters disclaimed any affiliation with governmental or educational institutions.

Minus refunds, Global received $4,738,028 in fees from at least 76,000 students. The only product or service that students received was a booklet. Each booklet contained a welcome memo that provided a general overview of student financial aid with advice on topics ranging from federal student loans to the tax implications of attending college. The booklets also contained sections on federal and state financial aid programs. Although Global included some tailored information based on students’ responses to the Demographic Form, Aria admitted the information was compiled “at a group level” and he “did not individually tailor [the booklets] to” any individual student. For example, students sometimes received the contact information for all 50 states’ financial aid agencies—regardless of the students’ residency—and were directed to Google search their home state’s financial aid opportunities. Additionally, Aria asked students to list their interest in playing collegiate sports, but the booklets provided only a generic “list of scholarships available to student athletes regardless of sport.”

Hundreds of complaints were submitted to various state, federal, and nonprofit consumer watchdog entities, which triggered the federal consumer fraud investigation that led to this proceeding."

The Consumer Financial Protection Bureau sued Aria, claiming -- entirely accurately -- that Aria's stuff was deceptive. The district court granted summary judgment to the CFPB, Aria appealed, and the Ninth Circuit affirmed.

In my view, Aria -- who resides, I believe, down here in San Diego -- should feel super lucky that the only thing he lost from this scheme was a civil restitution order for millions of dollars. I would also want the guy put in prison, honestly; a fate he apparently escaped.

Monday, December 12, 2022

In re D.N. (Cal. Supreme Court - Dec. 12, 2022)

It's not that I disagree with today's opinion from the California Supreme Court. I don't. Which is good, since it's unanimous, so if I disagreed, my presumption would typically be that I was the one in the wrong, not the Court.

I instead wonder why the Court granted review of the issue in the first place.

The trial court declared a juvenile offender a ward of the court and ordered that he live at home under certain probation conditions. The trial court told the probation office in advance that if there were any potential future probation violations (e.g., not showing up at school on occasion, etc.), there was an easy solution, stating: "“Probation is authorized to offer the minor up to 50 hours of community service, or up to a cumulative total of 10 days on the community service work program as an option to work off alleged probation violations.”

The trial court thought that was fine. The Court of Appeal thought that was fine. The California Supreme Court thought that was fine; unanimously, no less. And as far as I can tell, there's no split in the Court of Appeal nor any judge or justice, anywhere, who thought that this type of deal isn't fine.

So why not just leave the Court of Appeal's decision standing? What's the downside? What's the need to take the case up and reaffirm that, yep, the Court of Appeal got this one right? Is this really one of the most important matters on the California Supreme Court's docket? (I'd have thought not, not only given the correct answer to the question, but also the fact that the issue is somewhat fact-specific, and not at all uniformly imposed in all -- or nearly all -- juvenile probation cases.)

Plus, I'm even more convinced of the Court's holding than perhaps even the Court itself. I totally agree that it's not an unconstitutional delegation of power because, as the Court explains, it's just an offer. If the juvenile doesn't want to accept the offer, they can refuse it, and go to court and fight the allegation (or request a different condition/penalty). It's just the trial court telling the probation office in advance that if it wants to make such an offer, that'd be totally fine with the trial court.

Makes total sense.

Indeed, to me, the whole thing's a nothingburger because the probation office already has that power even absent the trial court's express invitation. As the Court explains, it's just an offer; an offer that the probation office can make and that, if accepted, would result in the probation office not bringing up the probation violation in court; e.g., if you do 50 hours of community service, we'll ignore the fact that you skipped class for two weeks. But, in my view, the probation office totally has that ability already, as part and parcel of its executive discretion. It's the one who decides in the first place whether to bring alleged violations to the trial court anyway. If it doesn't feel like it, or doesn't feel they're significant, it can just ignore 'em. As I'm sure it does every single day; e.g., when a juvenile skips a particular class. And if the probation office can ignore it altogether, then it can do the lesser as well; agree to ignore the thing if the juvenile agrees to do something special. The greater includes the lesser.

I'm sure that, all the time, the probation office tells juveniles things like "Okay, I'll ignore you skipping class this one time if you agree not to do it again." And, if it felt like it, it could surely say things like "Look, I know you shoplifted a candy bar from that one store, and that's wrong, so go back and pay for it and apologize to the shopkeeper and we'll look the other way and not bring a probation violation." No different here, right? The probation office already could say "You know what, you've done something wrong, and I could violate you if I wanted to, but I'll make you a deal; volunteer in a soup kitchen for 50 hours and I'll decide not to bring the thing to court."

The fact that the trial court "authorized" the probation office to do that, in my view, essentially means nothing. It grants them zero powers over the powers the probation office already possesses. Which in turn means there's definitely no delegation.

Really, I think that all the trial court's doing here is giving its informal blessing to the type of deal that it thinks would be potentially equitable in the future. A deal that's already within the power of the two parties (the probation office and the juvenile) to informally make on their own, but this way, there's a tiny bit more "formality" to the deal. A legally meaningless formality, mind you, but one that might set the parties on a particular path.

That's perfectly fine. For a plethora of reasons, including but not limited to the ones articulated by the California Supreme Court.


Friday, December 09, 2022

Diaz-Rodriguez v. Garland (9th Cir. - Dec. 8, 2022)

We're in the middle of exam season here at the law school, so I read this Ninth Circuit opinion, I thought it'd be a great basis for a law school final exam. (Of a sort, anyway.)

So, to take you back to those halcyon days of law school, I thought I'd turn it into one and let whomever wishes take the exam.

Here goes:

"A federal statute provides that people can be deported ("removed") from the United States if they have committed a crime of 'child abuse, child neglect, or child abandonment.' Defendant is found guilty in state court of the crime of 'child endangerment' for driving while drunk while his five-year old son was in the vehicle.

The case reaches the Ninth Circuit, which eventually hears the case en banc. Five judges agree that Defendant can't be deported because child endangerment is different than child abuse or neglect. Four judges agree the Defendant can be deported because the terms 'child abuse' and 'child neglect' are ambiguous can rationally be classified as including endangerment. Two judges agree that Defendant can be deported because child endangerment categorically constitutes child abuse or neglect.

Question One: You're a district court judge. Which opinion, if any, states the law of the Ninth Circuit?

Question Two: You're on the Supreme Court. Which opinion, if any, is correct?

For further reference, if you wish, you may read the underlying opinions in their entirety, which are attached herewith. They collectively total 169 pages.

You have 90 minutes to write your answer. Begin."



Thursday, December 08, 2022

People v. Carabajal (Cal. Ct. App. - Dec. 7, 2022)

The Court of Appeal holds that it's not a sufficient basis for a new trial, at least given the trial court's evidentiary findings in the present case. You nonetheless gotta admit that it's not a good look when the juror here (1) is listening to a prosecution for sexual assault, (2) hearing the testimony of alleged minor victim, (3) in a matter being prosecuted by the Solano County District Attorney's office, decides, in the middle of that trial (right before jury deliberations), to . . . apply for a job with the Solano County District Attorney's Office. As a victim advocate in criminal cases, no less.

You can see why the defendant is quite a bit upset when he discovers this fact several months after the jury convicts him. Especially since, yeah, the juror got the job. (After convicting him.)

You do have to wonder about at least implied or subconscious bias in such a setting, no? I mean, do you think the District Attorney's Office is really going to be excited about hiring someone who just days prior voted to acquit a defendant in a criminal case that your own office was prosecuting? Especially as a victim advocate, given that she just voted to acquit someone whom your office believed sexually assaulted multiple minors? 

And do you think the juror, at some level, at least, isn't going to be cognizant of that fact? That voting to acquit might well not be the best possible move she could make if she wanted to be hired for the job to which she applied literally hours previously?

Interesting stuff.

Monday, December 05, 2022

U.S. v. Reiche (9th Cir. - Dec. 5, 2022)

On first glance, this opinion from earlier today seems totally right. Ellen Reiche wants to take "direct action" to protest the use of fossil fuels, so she and a colleague go out in the dead of night to stop an incoming train carrying a load of crude oil. She doesn't tip the train over or rob it or anything like that; instead, she uses a simple little trick called "shunting."

Which sounds fancy, and I definitely hadn't heard of the technique before today. But really, it's quite simple. As a safety measure, trains use electricity to monitor if there's another train already on the track ahead. The railroad sends a super low current down the track, and if it hits the metal wheels of a train as they pass over a particular very small separation in the track, the metal wheels of the train complete the circuit, at which point the railroad knows there's a train already there.

Essentially, once you know this, all you have to do to "fake" another train being already on the track -- hence stopping any actual train traffic before that point -- is to clip a set of wires on both sides of the gap. Now the railroad thinks there's a train already on the track, so the actual trains behind it will stop.

Pretty smart.

Though not super smart. First of all, it only delays the actual trains a tiny little bit; the signal tells the railroad that there's an alleged train already on the tracks, and where, and the railroad knows there's not supposed to be a train there, so quickly sends out someone to look at the track, at which point they'll see (1) no actual train, and (2) the wires clipped to the track. So only a tiny delay. Second, there are often motion sensors in high-traffic areas, like this one. So they pick up Ms. Reiche and her confederate super quickly; like, literally within minutes, while they're still on the tracks.

Hence the federal conviction for interfering with a railroad.

All makes sense.

The underlying offense gives Ms. Reiche a base offense level of 9, but she gets 9 extra points added -- resulting in a sentence of a year in federal prison -- because her conduct "recklessly endangered the safety of a mass transportation vehicle." She says she didn't know that, but the district court disagreed, and the Ninth Circuit affirms.

Like I said, on first glance, the opinion in this regard makes facial sense. Judge Lee writes:

"Reiche’s actions . . . were obviously reckless and risky. It does not take a locomotive engineer to recognize that forcing a freight train to come to a sudden stop endangers the safety of those on and around it. . . . Indeed, it is a common trope even in cartoons and comics that a speeding train cannot stop quickly and may derail in trying to do so. And common sense underscores the danger of having a speeding vehicle stop suddenly: Imagine if someone placed nails on a road to cause a flat tire in a bid to stop cars. Perhaps the car could safely come to a stop—but any reasonable person would recognize that this is a risky thing to do because the car, for example, may careen off the road or spin out of control. 

Yet Reiche planned to suddenly stop a speeding freight train carrying millions of gallons of crude oil, as it passed through a residential neighborhood. Reiche might be correct that the public does not know about the mechanics of shunting. And Reiche herself might not have understood the exact science of a shunt’s interaction with the train’s signaling system, even after studying materials teaching her how to make and install a shunt. But Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train. Simply stated, a reasonable person would be immediately aware of the obvious risks of this conduct. The district court thus did not err in finding that the “obviousness of [the] risk” meant that Reiche was subjectively aware of the risk presented by her conduct. Harrington, 785 F.3d at 1304."

Totally correct, right?

That's what I thought upon first reading it.

But is it really?

Judge Lee seems to simply take it for granted that what Ms. Reiche did would cause the train to stop suddenly. He says it innumerable times: "sudden stop," "stop quickly," "stop suddenly," "suddenly stop a speeding freight train," etc. But as far as I can tell, nowhere in the opinion does it ever explain why the stopping of a train from a shunt needs to be -- much less invariably is -- sudden.

From what little I know about trains -- consisting largely (if not exclusively) from being an occasional passenger on them -- when a train learns that there's another train on the track ahead, it gets a signal to that effect, and comes to a stop. But, at least in my experience, that signal comes WAY WAY WAY in advance, miles and miles before the train actually has to stop. I've been on LOTS of trains that have had to come to a stop because (as the conductor announced) "there's a train on the tracks ahead." In none of those settings did the engineer slam on the brakes, or make the train stop suddenly, or anything of the like. There was plenty of time, the engineer slowly slowed the train down, we stopped for a while well in advance of the other train before moving on, blah blah blah. No problem at all.

Now, I'm not saying that's always the case if there's a train ahead -- or (as here) a false signal of a train on the tracks ahead. If, for example, the shunt was placed immediately in front of an oncoming train, so the engineer suddenly sees a flashing light that says "Whoa, train 500 feet ahead!", well then, yeah, you gotta jam on the brakes, and that's super dangerous for all the reasons Judge Lee sets forth at length.

But here's the rub; there's nothing in the opinion -- anywhere -- that suggests that shunting causes the type of latter type of braking ("sudden" and incredibly dangerous) as opposed to the former (gradual and totally safe). Moreover, on first principles, I'd think that unless the shunt is placed in front of an actively oncoming train -- which doesn't seem to be the case here, and would presumably be fairly rare -- then the braking would be gradual, just like usual (e.g., when there actually are trains present). No?

Plus, recall, the government here had to prove knowledge of the dangers. I'm not sure that the danger even existed, much less that Ms. Reiche in fact knew about it. Judge Lee says that "Reiche had to know that if her shunting efforts succeeded, she would have suddenly thrown the brakes on a moving freight train: because "[s]imply stated, a reasonable person would be immediately aware of the obvious risks of this conduct." Maybe I'm not a reasonable person, but I think I am, and at least based on my "common man" understanding of how trains work, I think I'm exactly the type of reasonable person who would not be "immediately aware" that shunting would likely (much less necessarily" result in someone "suddenly thro[ing] the brakes on a moving freight train" as opposed to slowly slowing down until the alleged obstruction (potentially many miles away) was eventually removed.

One last thing. Precedent. Based on what you know, which of the following is more dangerous; i.e., more likely to kill someone:

(1) Shunting a train in the manner Ms. Reiche did, or
(2) Pointing a laser at the cockpit of an aircraft flying at two thousand feet?

'Cause the Ninth Circuit has already held that a recklessness enhancement isn't available for the latter, and yet that seems at least arguably a fair piece more "obviously" dangerous than the former. No there too?

Were there evidence that a train was rapidly approaching (or even close) to the shunt, and that Ms. Reiche knew it, yep, I agree, obviously reckless, 'cause that'd require slamming on the brakes. But it seems quite unlikely (statistically) that a train would just so happen to be super close at the moment you placed the shunt and hence created the "train ahead" signal, and the mere possibility of that fact -- like the mere possibility that a pilot might be blinded by a laser from 2000 feet away -- doesn't seem to me to necessarily equate to recklessness.

Indeed, if your goal was to stop a freight train carrying oil, I'd put the shunt as far as possible away, so the train had to (1) slow down well in advance, (2) stop far away (e.g. at the nearest train "red light" generated by the shunt, and (3) sit there for a long time while someone travelled all the way to where the shunt was placed. That seems like it'd cause a lot more delay that putting a shunt right in front of a train, causing it to temporarily slam on the brakes and then slide up to a location in which the engineer could see that there was not, in fact, a train on the tracks.

But maybe that's just me.

Thursday, December 01, 2022

In re G.Z. (Cal. Ct. App. - Nov. 30, 2022)

I share what I perceive to be Justice Stratton's unease regarding this case. Yes, the 10-month old infant had some injuries -- current and past subdural hematomas -- that were hard to explain. Mother says he fell out of the bed and once fell while walking. But the doctors think there might well be more to it than that, and suspect that the kid might be repeatedly beaten. So DCFS gets involved.

Ultimately, Mother, which previously had total custody of the kid (the father was out of the picture), gets 50/50 custody with Father, and things actually end up quite well. No more injuries. No more doctor visits. The child now has two parents involved in his life, so the matter ends up quite differently than a lot of these cases.

But Mother says that DCFS should never have gotten involved in the first place; that there was not sufficient evidence at all that the child's injuries were from beatings as opposed to something else.

The Court of Appeal agrees.

I think that I probably read the facts in somewhat the same way that Justice Stratton does. It does seem like the evidence of abuse is fairly slim. There are no witnesses, of course, but that's fairly typical. And, unlike some other alleged abuse cases, Mother seems like she's acting exactly how you'd expect a parent to act when her kid is vomiting all the time. Concerned, etc. Plus there's nothing disastrous at the home or anything like that once DCFS inspects the house.

So, overall, were I the trial judge, I might well conclude that DCFS hadn't established abuse by a preponderance of the evidence, which is what the standard is here.

But here's the rub:

We're not the trial court.

The trial court was there. It heard all the evidence. It concluded that the infant's injuries were the result of abuse, not something else.

That factual finding is entitled to a fair degree of deference.

Is such a finding unreviewable? Of course not. Sometimes, yeah, there's insufficient evidence, and the Court of Appeal accordingly rightly reverses the decision below.

But here, the trial court's finding has a decent amount of common sense behind it. Summarized aptly by the trial court's statement that, in its view:

"[T]he court has [a] child that has had multiple subdural hematomas, multiple bleeds while in the custody of the Mother, and since the child has been in the custody of the Father [and] since they’ve been sharing custody and they have a parenting plan, there hasn’t been any new injuries. . . . Mother does not have a reasonable explanation, while this child is in her sole custody, continued to have brain bleeds, continued to have subdural hematomas with multiple falls. . . . It’s just an ongoing pattern. Mother does something. Child gets hurt. Mother doesn’t do something. Child gets hurt. Multiple falls and this child gets hurt.”

Yeah. That's tolerable circumstantial evidence that the injuries might be from abuse or neglect, no?

The Court of Appeal, by contrast, seizes on the evidence from the DCFS's doctors to hold that there's insufficient evidence. Justice Stratton summarizes this testimony as follows:

"Regarding G.Z.’s older/chronic subdural hematoma, Dr. Imagawa opined the MRI brain findings of increased subarachnoid space “may be related to [G.Z.’s] developmental course, or may be the sequelae of previous head trauma; however, based on the available information it is difficult to differentiate which is more likely.” (Italics added.) Dr. Imagawa opined it possible the MRI brain findings of increased subarachnoid space “might put [G.Z.] at some increased risk to sustain subdural hemorrhage from more minor trauma.” (Second italics added.) She concluded that non-accidental/inflicted trauma as the cause of G.Z.’s older subdural hematoma “cannot be excluded.”"

The Court of Appeal then says:

"Dr. Imagawa essentially concluded G.Z.’s subdural hematomas may or may not be caused by trauma, and that she cannot conclusively rule it out. It is not Mother’s burden however, to exclude non-accidental inflicted trauma as a possible cause of G.Z.’s injuries. It is DCFS’s burden to prove by a preponderance of the evidence that non-accidental trauma was the cause of injury. Because Dr. Imagawa could not categorically establish the cause of the older/chronic subdural hematoma, she stated she could not rule out nonaccidental trauma. Lack of conclusive evidence does not equate to evidence of neglect proven by a preponderance. The burden is not on Mother to disprove what DCFS had failed to prove in the first place."

Okay. I get all that.

But I think this may overstate a bit the DCFS's evidentiary burden, as well as the overall posture of the case. Yes, the DCFS's expert never said that G.Z.'s injuries were definitely caused by abuse. But she did opine "that intracranial injuries such as subdural hematomas “in otherwise healthy infants/children from causes other than trauma are rare.”" Now, "rare" definitely doesn't mean "never," and if this were a case in which abuse had to be proven beyond a reasonable doubt -- or by clear and convincing evidence -- I would agree that the testimony comes far short.

But it's not. It's a preponderance of the evidence test. And the trial court, which heard all the evidence, decided that the injuries were more likely than not from abuse. She was the one who heard the experts testify live. She's the one who heard Mother's testimony on the stand and was in the best position to judge her credibility, and how she looked when she attempted to explain how G.Z. allegedly fell from the bed onto pillows (which the doctors testified would not have caused the injuries that G.Z. suffered).

And then there's the matter of the circumstantial evidence. When the infant is in Mother's care, there are consistent and repeated injuries, of the same type. But those suddenly stop once the child is with Father or Mother's visits are supervised.

That's some evidence, no?

Maybe, were I the trial court, I'd have nonetheless come to the conclusion that, even though abuse might be the cause, it wasn't more likely than not.

But I could potentially see a trial court rationally coming to a contrary conclusion based on the entirety of the evidence below.

Even though an expert couldn't categorically rule out all alternative explanations for the child's injuries.

So do I see why the Court of Appeal comes out the way it does? Sure. I somewhat had the same reaction, to be honest. (At least given the evidence as presented in the opinion.)

But still. There's a standard of review. And that's the tough part for me here.

Monday, November 28, 2022

People v. Camacho (Cal. Supreme Ct. - Nov. 28, 2022)

Adrien Camacho shoots and kills a police officer during a routine traffic stop in front of lots of people for basically no reason, so it's not at all surprising that (1) he's sentenced to death, and that (2) the California Supreme Court unanimously affirms.

Mr. Camacho says that he was in a drug-induced psychosis during the murder, which the jury rejects, and convicts him of first-degree murder instead. Everyone on both sides agrees that Mr. Camacho had levels of methamphetamine and (likely) heroin in his system that were so high that they were "toxic" at the time of the shooting, so that's a point definitely in Mr. Camacho's favor on the "the shooting made no rational sense" point. Now, the prosecution theorized that Mr. Camacho deliberately shot the officer because he was a felon and had a gun and a small amount of drugs in the car, neither of which he was allowed to have (and which I agree the officer was likely to discover, since Mr. Camacho had no driver's license). I agree that's plausible as well.

Though I wonder if the competing theories are really mutually exclusive. After reading the whole thing, my guess is that (1) Mr. Camacho was indeed worried that the officer would catch him, but (2) freaked out at that reality -- in a measure far in excess of what any rational person would do -- in no small amount due to the incredibly high levels of drugs in his system. It's not like anyone would coherently conclude that (1) I'm likely to be busted for being a felon in possession, which would mean spending two to seven years in prison (after good behavior credits), so (2) it makes rational sense to shoot and kill the officer in front of tons of witnesses, hop in his police car, and try to escape. Because, this just in, No. 2 is almost certain to fail, and results in you -- at best -- spending the rest of your life in prison. The whole shebang.

But that's what Mr. Camacho decided was the wisest course of action.

And I'd bet dollars to doughnuts that the meth didn't exactly help on that front.

Monday, November 21, 2022

WV 23 Jumpstart LLC v. Mynarcik (Cal. Ct. App. - Nov. 21, 2022)

I've never thought about it before -- and I've taught Civil Procedure for over a quarter century -- but, yeah, I agree with the Court of Appeal that a judgment debtor doesn't have to have minimum contacts with the state in which a sister state judgment is rendered. If Nevada enters a judgment against me, and I had the requisite minimum contacts with Nevada (the forum state), then the plaintiff can subsequently register that judgment in California even if I have zero contacts with California. The minimum contacts analysis only applies to the rendering court, not the subsequent forum in which the judgment is registered. Because the registration doesn't create a new judgment; it's only enforcing the old one. (Plus, if you have no contacts with the subsequent state anyway, then you won't care much that there's a judgment against you in the state in which you have zero contacts, right?)

So Justice Krause's opinion seems entirely right to me.

Nonetheless, doesn't it strike you as strange that the plaintiff can accomplish what it successfully did here? The judgment in Nevada expired after 6 years, and wasn't renewed. So that's the end of the judgment in Nevada, right? In the interim, however, the Nevada judgment was registered in California, and thereafter renewed for another 10 years. That seems fine; there's a California judgment at that point, but not a Nevada judgment (since it expired). That's the way these things work.

But then plaintiff uses the existing California judgment and registers it in Nevada. Which Nevada apparently allows.

That just strikes me as strange. If Nevada wants judgments to expire after six years (if they're not renewed during the relevant Nevada time frame), why would Nevada allow a plaintiff to circumvent this rule by registering the judgment elsewhere and then "bouncing it back" long after the expiration of the underlying Nevada judgment?

I get that Nevada gets to do whatever Nevada feels like doing, and that that's not an issue for a court in California.

But seems like a bad rule to me.

Tuesday, November 15, 2022

San Antonio Winery v. Jiaxing Microrose Trading (9th Cir. - Nov. 14, 2022)

You'll care about this opinion if you litigate federal unfair competition cases and want to sue a foreign entity that has a trademark in the United States that you're challenging as deceptive. On an issue that's spit the district courts in the Ninth Circuit, it holds that you're allowed to serve the defendants through their registered agent in the Trademark Office rather than going through the (total pain in the butt) Hague Convention.

By contrast, if you're not one of those people, you might be at least marginally interested in footnote five of the opinion. Background: the foreign entity to be served defaulted in the district court and didn't appear in the Court of Appeals either, so there's no one to argue against the position that the Ninth Circuit panel ultimately takes today. So Judge Holly Thomas drops the following footnote:

"Jiaxing did not enter an appearance in this matter and therefore has not provided briefing in opposition to San Antonio’s position. Our review of the novel issue presented in this case has been aided in significant part by the district courts that have previously considered it, and, in particular, by the Eastern District of California’s decision in Gallo, 430 F. Supp. 2d 1064. Although we part ways with the Gallo court’s conclusion that Section 1051(e) applies only in administrative proceedings, we are grateful for its thorough analysis, which enabled us to fully consider both sides of this issue. In a similar vein, we are thankful for the helpful briefing and argument we received from the United States as amicus curiae."

Which is certainly nice.

One final (unrelated). Which I think I mentioned a half-dozen years or so ago in a different case, but which raised its head yet again in this opinion.

The last footnote of the opinion reads: "Costs on appeal are awarded to San Antonio." Doesn't it seem weird/unfair that costs on appeal should be awarded against a party who, as here, (1) didn't argue in favor of the position taken sua sponte by the district court below (indeed, who didn't even appear), and (2) also didn't argue in favor of that position on appeal?

I get that prevailing parties are ordinarily entitled to their costs, and the loser has to pay. That's the price of being on the wrong side of a lawsuit; e.g., doing something wrong.

But it still seems strange that you gotta pay costs for an appeal that you didn't initiate and didn't even fight -- and that you gotta pay 'em even even in the even you prevail on the merits on remand. Right?

Monday, November 14, 2022

In re Marriage of Blake and Langer (Cal. Ct. App. - Nov. 10, 2022)

I'm not sure why parties and lawyers repeatedly try to get out of sanctions orders through voluntary dismissals and then arguing that the court "lost" jurisdiction to sanction them given the dismissal. That argument pretty much never works, and rightfully so. It doesn't work here either.

As an aside, the opinion is also a reminder to be super careful when sending out emails; in particular, to make sure that your message doesn't inadvertently include an incriminating e-mail chain. For example, the email here mistakenly included a message on the chain from the father of one of the parties -- himself a trust and estate lawyer in New York -- that said: "I have reviewed [your residence trust] and believe I have a method of indefinitely tying your house up in litigation against [Langer], IN NEW YORK. . . My action may well not succeed, but it would have a very good chance of tying up your house for years—and deterring any would-be buyer who would be off-put 100% from buying a house in litigation, especially in NY.”

Yeah. That's not something you want the court (or the other side) to see. 'Cause it pretty much makes clear that the motivation for the filing of your action wasn't necessarily to actually win.

And that'll get you in trouble. On multiple fronts.

Wednesday, November 09, 2022

Zhang v. Dentons US LLP (Cal. Ct. App. - Nov. 9, 2022)

Typically, one reads opinions from the Court of Appeal because the legal doctrines are interesting, or the public policy consequences are significant, or things like that. But, on occasion, there's an element of "law porn" in which you're just fascinated by the underlying legal personalities.

Like here.

The doctrinal dispute is about the intersection between wrongful termination claims, mandatory contractual arbitration, and choice-of-arbitral-forum provisions (e.g., requiring arbitration outside of California for disputes involving California employees). All that's important, of course. But in terms of sheer interest -- for lawyers, at least -- it's all subsidiary to the "inside peek" one gets into some BigLaw partner-level machinations.

According to the Court of Appeal, at least, here's what happens:

"Petitioner Jinshu “John” Zhang was an equity partner in Dentons U.S. LLP (real party in interest or Dentons), a major law firm with offices throughout the United States. . . . In 2018, petitioner brought a client to Dentons whom the firm agreed to represent for a fee contingent on the outcome. Petitioner was principally responsible for the matter and resolved it successfully in February 2021, entitling Dentons to the contingency fee. The fee could not be collected until a later date when certain transfer restrictions were to be removed and Dentons’s exact percentages would become ascertainable. The fee is substantial; according to petitioner’s complaint, when collected “it will be the single biggest contingency fee Dentons has ever earned.”

Petitioner, whose compensation was determined by the Dentons board, believed the contingency fee “presented an opportunity to negotiate his compensation as it related to the Contingency Fee,” but Dentons’s chief executive officer, Michael McNamara, told him he would have to wait to negotiate his compensation until the Dentons board undertook its annual compensation review.

Matters thereafter deteriorated. Dentons asserts petitioner demanded that Dentons guarantee him 90 percent of the contingency fee and place him on the board, and when Dentons declined, petitioner “covertly went to the Client and negotiated an agreement to receive personally 85% of the proceeds of the contingency fee award, contrary to the terms of the Partnership Agreement.” Petitioner asserts that at the end of April 2021, Mr. McNamara and Edward Reich, Dentons’s general counsel, arranged the creation of a forgery, purporting to be a letter from the client’s representative directing a third party to transfer certain client-held securities worth tens of millions of dollars directly to Dentons. Petitioner reported the alleged forgery to the board on April 30, 2021, demanding Mr. McNamara’s immediate termination.

On May 5, 2021, the Dentons board voted unanimously to terminate petitioner’s status as a partner for cause, and initiated an arbitration the same day, alleging petitioner breached the partnership agreement and his fiduciary duty of loyalty to Dentons."

Fascinating stuff, eh?

As you might expect, litigation between the parties inevitably followed. With competing proceedings in New York and California, a trip to the Court of Appeal, an OSC from the California Supreme Court, and (today) the latest installment, in which the Court of Appeal reaffirms its prior conclusion notwithstanding the OSC.

Needless to say, the dispute isn't over. Not by a longshot.

And I'm confident we'll see more about this in the California appellate tribunals in due course.

Monday, November 07, 2022

Taska v. The RealReal, Inc. (Cal. Ct. App. - Nov. 4, 2022)

I was trying to figure out why the company filed this appeal, which it lost. And I think, maybe, that I have at least a possible (partial?) explanation.

It's a fairly typical employment action. The company, The RealReal, hired a VP of Human Resources, Elizabeth Taska, whom it then fired around a year later. Ms. Taska then sued the company for wrongful termination and retaliation. There was an arbitration provision in the employment contract, and the case goes to arbitration, which the employer wins.

So far, totally routine.

In the final arbitration briefs, both sides say they're going to move for costs and attorney's fees if they win, which is not unusual. In the arbitrator's award, after finding for the company, the arbitrator expressly holds that the company is not entitled to a fee award. So end of story. 

Again, not unusual.

What's a little weird is that, a couple weeks later, the company asks the arbitrator to reconsider, and asks for fees again. At which point the arbitrator changes their mind, and awards the employer around $73,000 in fees, holding that "“the repeated and substantial failure of [Ms. Taska] to testify truthfully” rendered the conduct of the arbitration “unreasonable, meritless, frivolous and vexatious . . . .”"

Both sides then file in the trial court -- the employer to confirm the award, and Ms. Taska to strike the fee award -- and the trial court agrees with Ms. Taska, holding that the trial court lost jurisdiction to award the fees because it was over 30 days after the original final award (e.g., the one that denied fees).

Which, by the way, is totally right. That's what the law says. That's clearly the right result. As the Court of Appeal unanimously concludes.

What confused me is why the employer filed the appeal. First off, the trial court was right, so it's a waste of time. But also, look, it's an employment dispute. Who cares if there's a $73,000 fee award against the plaintiff? She's not likely to pay it anyway? Why waste the money chasing it? (Especially when, as here, you're likely to lose the appeal anyway -- and might well spend more in legal fees on the appeal even if you won.)

Now, I get it, sometimes you just hate the plaintiff, or are vindictive, or want to "strike back" and make their lives miserable. Sometimes litigation isn't just an economic transaction. Sometimes it's personal.

So I figured that something along those lines might well be happening here.

Still, a little unusual.

But then I did a quick Google search to see if there was anything about this case, or the plainttff, in the news.

I'm not saying that it's necessarily the same person. But the plaintiff's name here is Elizabeth Taska, and the litigation was in San Francisco, and there's quite a lot of press about a "Beth Taska" up there, largely as the result of an allegedly racist incident at a public park in San Francisco, which you can read about in substantial detail (as well as see the video) here.

An incident which, perhaps coincidentally (?), occurred on July 4, 2020, which was exactly five days after the arbitrator's corrected final award in the litigation awarding $73,000 in fees against her for her alleged "repeated and substantial failure to testify truthfully" in the arbitration.

There's nothing in the briefs (not surprisingly) that mentions the racist incident, and the name of the alleged perpetrator there ("Beth Taska") and the plaintiff here ("Elizabeth Taska") is slightly different. But they both (1) appear to be in San Francisco, (2) are listed as senior human resource officers, and (3) at least here, "Beth Taska" is listed as a former employee of The RealReal (the defendant here) as well as Topa Equities and 24 Hour Fitness, which lots of news stories mention were the former employers of the alleged racist.

Again, I'm not saying that it's necessarily the same person. But if it was the same person, that might be one possible explanation for why The RealReal was perhaps, in part, fairly aggressive (IMHO) about trying to claw back the $73,000 fee award against Ms. Taska that the trial court had (rightly) vacated.

Because it was more than a little bit miffed, and wanted to impose some extra pain. Even if it lost.