U.S. v. Richards (9th Cir. - Oct. 31, 2022)

Judge Callahan authors an opinion that affirms a criminal conviction and sentence. That's surely not a "man bites dog" story.

What is unusual, however, is the nice way in which she does it.

The opening paragraph of the opinion reads: 

"James Richards appeals from the imposition of consecutive 24-month sentences for violating the conditions of his supervised release for possession of two guns and ammunition. He argues that the consecutive sentences: violate his rights under the Fifth and Sixth Amendments as explained in United States v. Haymond, 139 S. Ct. 2369 (2019); violate his rights under the Double Jeopardy Clause; and are not supported by sufficient evidence. . . .  Richards’ arguments on appeal are not persuasive."

Fairly typical, right?

But what I deliberately left out with the ellipsis are the following words: "Although well presented by counsel . . . ."

Hey! That's very sweet. 

Always great to get kind words from a Ninth Circuit judge. Even when you lose.

Appellant's counsel is Thomas Sprankling of WilmerHale. I'm assuming it's a pro bono case, since last time I checked, Wilmer didn't typically make bank by representing criminal defendants like this one.

(A short synopsis of the defendant's criminal history: "In 2007, Richards was arrested for possession of crack cocaine and a gun. He pled guilty to Count One, possession with intent to distribute crack cocaine, and Count Three, possessing a firearm in furtherance of a drug-trafficking crime. He was sentenced to 106 months of incarceration. Richards was released from prison in June 2016 and placed under supervised release. In June 2017, the terms of his supervised release were modified to account for his substance and alcohol abuse issues. In September 2018, Richards’ supervised release was revoked because of his failure to properly communicate with his probation officer and for driving a motorcycle on a suspended license. He was sentenced to two months in custody, an additional 58 months of supervised release, directed to reside in a half-way house for 10 months, and placed on GPS monitoring for the first 150 days of his residence at the half-way house. In February 2019, Richards left the half-way house without permission, for which the district court imposed additional GPS monitoring and required Richards to abstain from alcohol. On March 6, 2020, a Petition for Warrant for Person Under Supervision was filed charging Richards with calling “several witnesses, including a girlfriend, via a mobile video connection, threaten[ing] to kill them, and show[ing] a black handgun.” This appeal arises out of Richards’ actions two days later, on March 8, 2020.)

One benefit of doing pro bono appeals is that you get in a little practice, as well as perhaps add to your resume. And here, there's the bonus of getting some kind words from a federal judge.

Nice.

Trujillo v. City of Los Angeles (Cal. Ct. App. - Oct. 27, 2022)

You can think about this case in one of two ways.

One way is to believe that the plaintiff is being sleazy. Defendant makes a 998 offer shortly before the hearing on a summary judgment motion. At the hearing, the trial court orally grants the motion, and two minutes after the hearing ends, the plaintiff accepts the 998 offer and (a couple minutes after that) files the acceptance with the court. One way to look at this is to say that there's zero reason to enforce the offer in such settings, since the case is over anyway and letting people do this only discourages settlement since they can wait until after the MSJ hearing to decide whether to accept the offer or not.

The other way to look at this is to think that the defendant is being a moron, so gets what it deserves. The statute says that offers are good for 30 days or until the start of trial, unless they're revoked. Who makes a 998 offer right before an MSJ hearing and then doesn't revoke it on the eve of the hearing?! How stupid is that? If that's what the attorney (or client) wants to do, fine, but then they're stuck their incredibly unwise decision. They made an offer, it wasn't revoked, and it was accepted. End of story.

The Court of Appeal adopts the first vision.

Vought Const., Inc. v. Stock (Cal. Ct. App. - Oct. 24, 2022)

It seems eminently sensible to me what the trial court did here, and the Court of Appeal largely affirms. I just have one question.

It's a home remodel, and the owner and general contractor are in a tiff. The contractor files suit because it says it wasn't paid everything that was due, and the owner says that the contractor is liable for liquidated damages due to the delay in finishing up the project. On the merits, it looks like both sides have decent arguments, and are both partially right. Which is precisely what both the trial court and Court of Appeal conclude.

So the trial court gives the contractor a fraction of what it's asking for and offsets this amount by part of the damages the owner claims as a result of the delay. Seems fair, equitable and right.

Here's my question:

The trial court refuses to award attorney's fees because it says there's no real prevailing party since both sides were somewhat right and somewhat wrong. The Court of Appeal affirms. That seems spot on. The trial court had discretion in this regard, both sides definitely prevailed in part, so I completely agree. No prevailing party for attorney's fees purposes.

On that same reasoning, the trial court denied costs to the contractor. On this issue, however, the Court of Appeal reverses. Justice Pollack says -- reasonably, in my view -- that cost awards are mandatory under Section 1032 of the CCP for anyone who obtains a "net" (e.g., even partial) recovery, so the contractor is entitled to its costs even though both sides partially won.

At first glace, that seemed entirely right.

But then I went back and looked at the relevant statutes.

Here's what the specific "contractor" statute (Section 8800) says; e.g., the one that the contractor is specifically suing under, and the one under which it (unsuccessfully) sought an award of attorney's fees:

"In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney's fee."

Recall that the Court of Appeal (correctly) affirmed the trial court's view that there were no attorney's fees due because there was no "prevailing party" under that statute. The Court of Appeal nonetheless says that there's a "prevailing party" under a different statute, Section 1032, since the relevant precedent under that one says that anyone with a net recovery is entitled to costs.

Sure enough.

But the specific statute (8800) also covers cost awards, not just attorney's fees. ("[T]he prevailing party is entitled to costs and a reasonable attorney's fee."). We already decided that there was no prevailing party under that statute. Does a specific statute (8800) prevail over the otherwise-applicable general statute (1032) when the two, as here, conflict?

I know that in FEHA cases, the answer is definitely "Yes" -- that in those cases (e.g., employment discrimination actions), a prevailing defendant is not normally entitled to costs under Section 1032 even though it's the prevailing party, because the more specific FEHA statute that governs costs otherwise provides. Now, admittedly, there, the specific statute (Section 12965) expressly says that it trumps the general rule, whereas here, there's no such "express" supremacy claim. (Though I'll mention that even Section 12965 only expressly says it trumps section 998, not 1032, so arguably those situations and the present one are perfectly analogous on that score.) But what about the underlying principle? If there's a specific statute that addresses both costs and fees, and a court rightly decides that there's no recovery under that one, can you nonetheless still recover costs under the more general one?

Justice Pollack doesn't answer that question here. Presumably, in his defense, because there's not an argument by the parties on that score.

Still, I'd like to know the answer. Because otherwise I think people will get the impression -- perhaps correctly, but perhaps erroneously -- that the Court of Appeal hereby holds that the general entitlement to costs in Section 1032 is not trumped by more specific cost recovery statutes.

Anyway, that's my question. One that seems fairly important, I suspect. Not just in this case, but in a whole lot of other ones as well.

Cadena v. Customer Connexx LLC (9th Cir. - Oct. 24, 2022)

Today sees a very thoughtful, persuasive opinion by Judge Bybee, joined by Judges Callahan and Collins.

Now, as to the facts, I'm not really certain that it actually takes (as plaintiffs claim) "between 6.8 to 12.1 minutes" to boot up a computer at the beginning of work, or that it similarly takes "an average of 4.75 to 7.75 minutes to log off and boot down" a computer after work. Unless these computer are from, say, 1990. My work computer takes about a minute or two to boot up, and less than 30 seconds to shut down. And I assure you that the computers at my work are about as old and slow as any known to man.

But if, in fact, it takes that look to boot up a computer, and because of the employer's timekeeping system, the plaintiffs only get paid once they boot up the computer and log it, then, yeah, they should get paid for that time, and weren't. Their job is to listen to calls over a computer, and booting up that computer is part of that job. You can't do the former without the latter.

If it were a minute or two, maybe that time would be de minimus -- an issue that the panel leaves for the district court on remand. But 12 minutes to boot up a computer?! If that's really true -- and I doubt it, but what do I know about the computers at issue here? -- then, yeah, they should get paid for that.

Something for the district court to decide as a factual matter on remand.

Miller v. Dep't of Real Estate (Cal. Ct. App. - Oct. 17, 2022)

Today's opinion from the Court of Appeal involves a mobile home park in Oildale, California.

I've never heard of Oildale before, though once I looked it up, I recall driving through it at some point. The name doesn't make the place sound very attractive. Accurately so. 

Here's the picture of Oildale that's most easily accessible on the web. That also jibes with my memory of driving through the place. Not exactly the most desirable place in the universe to reside.

Doing so in a mobile home park probably makes it even less intriguing.

When you ask Mr. Google what Oildale is most known for, here's what it tells you:

"Oildale, with a population of about 32,000, is famous for being the birthplace of Merle Haggard and for the massive oil patch that drew Dust Bowl migrants west. It is also known for its intractable poverty, drug problems and a legacy of racism against blacks."

Not exactly the most positive advertisement for the place.

I'm loathe to be dismissive of places others live. Often, they have no choice. Sometimes they even grow to love the place, notwithstanding its faults.

But this particular area looks rough. At a minimum, it's proof positive that California is not uniformly the land of milk and honey.

Sometimes it's just miles and miles of ugly, stripped bare oilfields.

U.S. v. Saelee (9th Cir. - Oct. 11, 2022)

The most recent published Ninth Circuit opinions were from nearly a full week ago -- October 5 -- so, perhaps not surprisingly, we get a dump today of nearly a half dozen of them.

There's aren't a ton of lessons to be learned; some of the opinions are merely amendments. But one thing that this opinion might teach people is that if you feel like getting a ton of Ecstasy pills from Germany to the United States, simply mailing them there (in this case, to California) via the USPS doesn't really work so well. Because, well, the United States is somewhat familiar with that tactic, and screens for it.

Even if you use fake names on both the shipper and recipient side. You still get busted.

I'll also add that it's interesting that, in preparing the search warrant, the Homeland Security agent here repeatedly misspelled the name of the drug. It's a complicated spelling, to be sure. But it's Ecstasy. Not Ectsasy.

Kruthanoochi v. Glendale Adventist Med. Center (Cal. Ct. App. - Oct. 5, 2022)

It doesn't happen to be my particular religion, but two opinions from the Court of Appeal were published a couple of hours before sunset on Yom Kippur, and they seem to me to have a related underlying theme -- even though they are factually and legally quite distant from each other.

The first case is this one, which says 10/4 at the top but which was actually posted on the afternoon of the 5th. It's a medical malpractice lawsuit posing as an elder abuse claim. There, an elderly man named Daniel Kruthanooch went to Glendale Adventist Hospital because he "woke up weaker than usual" that morning. Mr. Kruthanooch "had a history of coronary artery disease, hypertension, hyperlipidemia, and diabetes. He had also had back surgery earlier that year." Suffice it to say that Mr. Kruthanooch doesn't seem like he was in awesome shape even prior to the hospital visit.

At the same time, he definitely didn't get any better during the visit. Indeed, in at least one respect, it seems he got worse.

To try to figure out what was wrong with Mr. Kruthanooch, they sent him to have an MRI. Now, as you undoubtedly know, it's super important not to have metal on you when you go into those things. So they check, and don't find anything. But for some seemingly inexplicable reason, they don't notice that a metal ECG pad was left on Mr. Kruthanooch's body. So when he goes into the MRI machine, things start heating up a ton, and Mr. Kruthanooch presumably feels the thing doing so -- indeed, he starts moving around in the MRI machine, at which point the person running the thing tells him to cut it out and stop moving, but he does it again, but whatever, eventually the whole MRI thing is over.

They pull him out of the MRI and he tells the doctor that "something was going on with his lower abdomen.” So they check it out and, lo and behold, there's the ECG pad that was left on during the MRI, and when they pull the pad back, they totally discover a burn right under it -- the nurse said it "looked like a blister or second-degree burn.” So they admit him for a couple of days, treat him, and then let him go. But not before the doctor writes in the patient's chart: "While an [sic] MRI apparently the EKG electrode was not removed and the patient sustained a second degree burn to the left lower quadrant.”

Eighteen months later, Mr. Kruthanooch sues for the burn. Eight months after that, he dies. A year or so later, the case goes to trial, and the question is whether the defendant is liable.

Here's where, in my mind, some atonement is due on both sides.

First, at trial, the defendant puts an expert -- "Dr. Terry Dubrow, a specialist in reconstructive plastic surgery" on the stand. Dr. Dubrow opined that "the metal in the ECG pads did not cause Kruthanooch’s burn" and that "the actual cause was 'unknowable'” because "Kruthanooch was “very, very ill” and that anything from “fluid status changes” to something on the surface of Kruthanooch’s skin could have been the cause."

To which I say: Shut up. Or at least atone for what you said. Admittedly, I wasn't at the trial. But I have zero doubt that the ECG pads in the MRI caused the burn. As did the jury, which found liability.

But then, on the other side, there's the damages testimony offered by plaintiff:

"The jury also heard testimony from Daniel and Sam Kruthanooch, the decedent’s sons. Sam testified that he had advised Kruthanooch to go to the hospital when his father informed him that he was feeling weak. When he visited his father that evening, he learned of the burn. He testified that the burn “seemed to affect his walking immediately.” Sam testified that, prior to the burn, Kruthanooch “did everything on his own,” and that after the burn he relied on his wife “to do just about everything for him,” such as helping him to move about the house, helping him to shower and use the bathroom, cooking his meals, and doing the shopping—things that Kruthanooch had previously handled on his own. Sam recognized that his father “had a lot of health problems” but testified that “the burn just made those things much worse.” Daniel testified that, prior to receiving the burn, Kruthanooch was “very independent” and was “up and adam [sic] . . . a go-getter . . . and he did everything himself.” After the burn, Daniel testified that Kruthanooch was “a different person,” “couldn’t get up,” and “couldn’t do stuff on his own.”"

Now, I'm certain that the burn didn't help anything, and probably made things a bit worse. But to try to frame the burn as causing most or all of the problems this already-seriously-weak elderly man had to go through during the final year(s) of his life seems less than plausible. He might perhaps have been "a different person" during that very last period before his death. But it wasn't primarily due to the burn from the ECG pad.

Which, perhaps, is why the jury awarded no damages.

I understand that in both civil and criminal cases, people -- including those who testify under oath -- sometimes act more as advocates rather than neutral witnesses.

But that's not what the process calls for. As well as something for which to atone if you've participated in such efforts.

Then there's the second case, this one. It's a "religious" case. Sort of. I'll just have to give you the opening lines of the opinion and you'll readily see that it's consistent with today's theme:

"April Elizabeth Mancini owns the Jah Healing Kemetic Temple of the Divine Church, Inc. (the Church), whose adherents consume cannabis blessed by Church pastors as “sacrament.” . . . [In early 2018,] the Church moved to its current location at 208 E. Big Bear Boulevard. In April 2018, County authorities executed a search warrant of the premises. Officer Jorgensen observed many signs that the Church was operating a dispensary, including cabinets filled with cannabis in jars, cannabis-infused drinks and edibles, vape cartridges, teas, creams, oils, cash registers, scales, packaging materials, bags, medicine bottles, pricing information, and an ATM machine. . . . Officer Jorgensen conducted another inspection of the premises in August 2018. He observed a menu of cannabis products and a “cash only” sign. When Officer Jorgensen asked Mancini whether the Church continued to dispense cannabis, she responded that “church members come in, they tithe, choose their sacrament, pray, and then they leave.”"

Yeah. I get it. No need to say anything more. I think we all know pretty much exactly what's going on here.

Karton v. Musick, Peeler, Garrett LLP (Cal. Ct. App. - Oct. 3, 2022)

There are a lot of similarities between Jarndyce v. Jarndyce -- a fictional case -- and the dispute at issue in this morning's opinion, which is unfortunately all-too-real.

It begins with a simple default judgment in 1999 for $65,000 for attorney's fees allegedly owed to Beverly Hills divorce attorney David Karton.

Which then morphs into a two-decade-plus monster of multiple lawsuits, appeals, collateral attacks, and enforcement actions all across the country -- Pennsylvania, Tennessee, Arkansas, etc. -- raising all sorts of different issues, the unifying theme of which is the attorney's fees allegedly owed to the "prevailing party" in all of the various and sundry related lawsuits. Fee requests that are often monstrously large; to take but one example, a $1.66 million fee request.

(Remember, by the way, that the original default judgment was for a mere $65,000 in fees.)

And I'm not even mentioning the various orders involving sanctions, contempt, etc.

Sometimes litigation takes on a life of its own. A monstrous life.

This is one of those cases.

People v. Boukes (Cal. Ct. App. - Sept. 29, 2022)

You learn from the very outset of the opinion that it's a murder case with a gang enhancement, and most of these cases are some subset of the Crips/Bloods or Norteno/Sureno gangs. The name of the gang involved wasn't mentioned at the beginning of the opinion, so I looked at the caption to see if that gave me any data on the front.

Nope. Defendant's name is Noy Estul Boukes. Interesting. Never seen anything like it before. I wonder about its origin, and continue to read the opinion.

At which point I discover that it's a white supremacist gang. That's unusual, though not unprecedented. You see some of those opinions coming out of prison assaults and the like. Though this one's from outside, in Hemet. Something different again.

On the white supremacist front, the only gang I'm familiar with is the Aryan Brotherhood, which seems the undisputed leader of the pack on this front. Justice McKinster tells me all about the significance of the numbers 14 and 88 to these types of gangs, which I already know. (I won't dignify the meaning of these numbers by repeating what they mean, but you can read the opinion to find out if you want.) But he also tells me that the gang at issue here is the "COORS" white supremacist gang. Which I've never heard of before. So that's interesting.

The opinion never tells me what "COORS" stands for, but I look it up and quickly discover those facts elsewhere. ("Comrades Of Our Racial Struggle") I also discover what it means when someone has a Coors Beer tattoo, which I've actually seen before. Huh. Never knew that. Thought it just meant they really liked the brand. Now I know the truth.

There's a whole lot of doctrine in the opinion, and even a concurrence, all of which you can read if you'd like. But I just thought I'd share for now what I learned about this particular gang.

Not the most pervasive gang in the universe, nor the most important information in the universe, but worth knowing, I figure.

(Here, by the way, is what Mr. Boukes looks like. 6'5". With a ton of face and neck tattoos. Yikes.)

People v. Lastra (Cal. Ct. App. - Sept. 28, 2022)

The Court of Appeal affirms the trial court's recusal of the entire District Attorney's office in San Luis Obispo from prosecuting some Black Lives Matter protesters, holding that the extrajudicial comments of the District Attorney might suggest that he might not prosecute the matter in a neutral fashion given his demonstrated antipathy to the BLM movement. Instead, the California Attorney General's office will be the ones prosecuting the cases.

At one level, the opinion is incredibly moderate. The opinion is unsigned. It repeatedly reminds the reader that public officials (including the DA) have the right to free speech. It expressly says that its holding is based in substantial part on the standard of review; that the trial court is in a better position than the Court of Appeal to determine the politics and factual circumstances in San Luis Obispo, so there's a great degree of deference that's required.

At the same time, however, the opinion does contain a couple of things that I found a little one-sided. For example, on page five of the opinion, the panel lists several statements about the BLM movement that facially might demonstrate a lack of impartiality; for example, describing "the Black Lives Matter movement as a ‘Marxist’ group who promote ‘cop killings, prostitution, anti-Semitism, anarchy, and the suppression of speech and religion.’” That seems fairly bad, right?

But you gotta read the opinion carefully to realize that those aren't statements by the District Attorney. They are instead statements made by someone else entirely. The statement above, for example, was made by a guy named Tony Perkins, and the only connection at all between the District Attorney and Perkins that's listed is that "“August 11, 2020 – Mr. Dow appeared on Washington Watch with Tony Perkins."

Look, sometimes, appearing in public with someone matters. If I appear in public with a guy in a Nazi uniform, for example, and hold his hand or shout "Right on!" or what have you, yeah, that's fairly decent evidence of my sympathies.

But taking the worst thing that Person X has ever said and attributing it to Person Y because the latter at one point in his life was at a meeting with the former? That seems to go a bit too far.

The second example the opinion mentions is in the same genre. It says: “September 4, 2020 – Mr. Dow explained his charging decision in the ‘PRotect Paso’ Facebook group. Documents attached showed animosity to the Black Lives Matter group – their Constitutional right. These claim that the BLM movement is ‘domestic terrorism;’ ‘down right evil, no brains or souls,’ and posted pictures of a BLM billboard burning in flames. Members of the group have discussed their skills as hunters and claim they will use these skills to protect Dan Dow, and ‘protect our own.’"

Now, if the District Attorney had said these things, that'd be incredibly meaningful. But that an elected official attempted to explain a political decision to a particular Facebook group (!) generally says very little about the speaker. Nor does the fact that members of that particular Facebook group have said particular things mean that those same statements should somehow be imputed to the person who spoke to that group.

To take something from my personal experience: On several occasions, I've spoken at Federalist Society events, including one at the Ronald Reagan library. Does that mean that I can legitimately be tarred with the most horrible things that the most horrible person in the Federalist Society has ever uttered? Or am similarly tarred with the worst events of the Reagan presidency?

I think -- or at least hope -- not.

There's at least one piece of evidence in the opinion that's a bit closer to accurate: “October 11, 2020 Mr. Dow appears alongside Candace Owens and spoke at a fundraiser for the ‘New California,’ a secessionist organization. At the event, Ms. Owens called BLM ‘one of the most racist movements that ever existed in this country.’ When questioned, Mr. Dow wrote a letter to the Tribune advising, ‘Candace Owens is a bright and intelligent, fearless woman and a role model for young women everywhere.’ Mr. Dow has been quoted as stating that ‘She speaks the truth.'"

You get why that seems qualitatively different, right? There's a lot closer tie to what the speaker (Ms. Owens) said there.

Anyway, the entire DA's office gets recused, and the Court of Appeal affirms.

Environmental Health Advocates v. Sream, Inc. (Cal. Ct. App. - Sept. 26, 2022)

The Court of Appeal holds that you don't have to put a Prop. 65 warning on bongs because, at least in theory, they could be used for something other than marijuana.

I wonder what the threshold is there. What if 99%+ of the things are used for marijuana? 99.9%? (Which, I suspect, reflects reality.)

Plus, though the opinion doesn't mention it, doesn't everything you'd put in a bong cause cancer? I mean, I guess you could put cheese or something in it, in theory. But it wouldn't exactly work that way.

I was also thinking that if Prop. 65 warnings were required for things that might expose you to marijuana smoke, then the beach parking lot across the street from my house should definitely have a warning as well. Particularly at sunset. 'Cause that thing is Pot Central.

Spirit of Aloha Temple v. County of Maui (9th Cir. - Sept. 22, 2022)

Plaintiff Fred Honig challenges the decision of Maui County not to give him a permit; the trial court granted summary judgment to Maui. Given the underlying facts of this case, and the underlying character traits of the plaintiff, who do you think's going to win the appeal? Here are the facts:

"In 1994 Fredrick Honig bought eleven acres located at 800 Haumana Road in Maui. The land is zoned for agricultural use, designated within the state agricultural and conservation district, and subject to environmental protections for coastal lands. Honig developed the land without permits. He cleared and graded the land, cut roads on the property, changed the contours of coastal conservation land, and altered the route of a natural watercourse. He appears to have built illegal structures, including housing structures, and installed cesspools near drinking water wells. Although several Hawaiian archeological sites existed on the property, including an agricultural terrace, burial crypt, and irrigation ditch, Honig failed to provide the requisite monitoring plans for their preservation. Through a nonprofit entity, Honig also used the property as a venue to conduct commercial weddings, vacation rentals, retreats, and events—all without the requisite permits. By late 2015, around 550 weddings were performed on the property.

Honig was repeatedly put on notice that these activities required appropriate permits but continued to violate land use regulations. In 2007 Honig formed a new nonprofit, Spirit of Aloha Temple, as “a branch of the Integral Yoga movement, a modern branch of the ancient Hindu yogic tradition.”

That year Honig applied for a special use permit for a “church, church[-]operated bed and breakfast establishment, weddings, special events, day seminars, and helicopter landing pad.” The County of Maui Planning Commission denied that permit, noting several buildings without proper permits; general problems with the helicopter pad’s location; and potential adverse impacts to surrounding properties from loud music, helicopter noise, and increased traffic."

I couldn't be more certain, by the way, that Mr. Honig's desire to found a church on the property was totally sincere, and not merely a scam to circumvent the usual rules about developing the property.

So, given the facts, who do you think wins?

That's what I thought too.

Wrong. The Ninth Circuit, in an opinion written by Judge Ryan Nelson, not only reverses the grant of summary judgment to Maui County, but also essentially holds that the plaintiff is entitled to win his lawsuit.

Justice. Right?

Almond Alliance v. Fish & Game Comm'n (Cal. Supreme Ct. - Sept. 21, 2022)

I talked about the Court of Appeal's "Bumble Bees Are Fish" opinion when it first came out. And today the California Supreme Court denies review (with Justice Guerrero voting the other way).

Chief Justice Cantil-Sakauye writes a separate concurrence in the denial of review, joined by Justice Corrigan and Groban. Her concurrence is worth reading at length, because she's exactly, 100% correct. She says:

"Our denial of a petition for review does not communicate any particular view regarding the merits of the issues presented in the petition. Thus, all should understand that our decision to deny review in this case is not an endorsement (nor is it a rejection) of the statutory analysis undertaken by the Court of Appeal, which determined that bumble bees, a nonaquatic invertebrate, are susceptible to being listed as endangered under the California Endangered Species Act (Fish & G. Code, § 2050 et seq.; CESA) because that statute applies to fish (Fish & G. Code, §§ 2062, 2067 & 2068), and “invertebrates” are included within what the Court of Appeal deemed to be the applicable definition of “fish” (id., § 45). (Almond Alliance of California v. Fish & Game Com. (2022) 79 Cal.App.5th 337, 341.) 

Yet if experience is any guide, our decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” (Cal. Rules of Court, rule 8.500(b)(1)) warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple. Careful analysis of a statute to divine legislative intent can sometimes yield results that might seem surprising at first blush. Courts engaged in this task have interpreted “less” as “more” (Amalgamated Trans. Loc. 1309 v. Laidlaw Tran. Ser. (9th Cir. 2006) 435 F.3d 1140, 1146) and “unlawful” as “lawful” (Scurto v. LeBlanc (La. 1938) 184 So. 567, 574). Long ago, the United States Supreme Court concluded that the “seas” referenced in one statute required no water at all (Murray’s Lessee v. Baker (1818) 16 U.S. 541, 545); quite recently, it determined that a fish is not a “tangible object” (United States v. Yates (2015) 574 U.S. 528, 536).

These kinds of seemingly illogical outcomes can in fact best capture the enacting legislature’s intent in a variety of circumstances. A statute may be construed in a manner that goes beyond the literal meaning of its text to avoid an absurd result the legislature could not possibly have contemplated. Sometimes courts perceive a scrivener’s error or typo that must be corrected to vindicate the intent behind a measure. Or the context surrounding the use of a word or phrase within a statute can convey that it carries an unusual meaning, peculiar to that law. The Court of Appeal below concluded that the interpretive question before it fell into the last of these categories, with the consequence that bumble bees should indeed be regarded as “fish” under the CESA.

Even if the Court of Appeal arrived at what might superficially seem like a counterintuitive result, that alone does not establish that it erred. Moreover, our decision not to order review here does not prevent us from considering the CESA’s reach in some future case, at which time we may agree or disagree with the Court of Appeal’s analysis. In the interim, the Legislature is in a position to make whatever statutory amendments it may regard as necessary or useful. For although it may not be exceptional for a court to determine that a particular word or phrase within a statute carries a meaning that deviates from common parlance or understanding, such decisions also can provide notice to legislators that some clarification may be in order."

My reaction to reading those words was simple and straightforward:

I'll miss her wisdom when she leaves the bench in January.

Kernan v. Regents (Cal. Ct. App. - Sept. 21, 2022)

You're 39 weeks pregnant. Your baby's in a breech position, so you go to the hospital to get the baby turned around -- what's called an ECV (External Cephalic Version). Although today's opinion doesn't explain the procedure, it's basically having the doctor put her hands on your baby from outside your stomach and physically forcing the baby around. (Not a fun process, I might add -- not having gone through it myself, obviously, but having seen it performed.)

Immediately after the procedure, they monitor your baby's heartbeat for 40 minutes, and everything seems fine. So you go home. But after you leave the hospital, you no longer feel the baby move. Ever. So the next day, concerned, you go back to the hospital. At which point they perform an ultrasound and tell you that your baby's dead.

You ultimately file suit, claiming that the version negligently caused the baby's death the next day. You didn't file your lawsuit all that promptly, so the defendant raises the statute of limitations as a defense. The key question on summary judgment is this:

Would a reasonable person have "suspected" -- that's the standard -- that the version the doctor performed on you and your baby was potentially the cause of the baby's confirmed death the very next day?

Plaintiff says no; defendant says yes.

The trial court agrees with defendant and grants summary judgment.

The Court of Appeal reverses, holding that a reasonable factfinder might well conclude that someone had no reason to suspect that the baby's death was caused by the ECV performed on the baby the previous day.

When related issues come up in other lawsuits as to what a reasonable person might suspect, this opinion is one that I imagine lots of plaintiffs will elect to cite. Because if I were the mother -- or father, or nurse, or doctor -- I suspect that given the close proximity in time, I'd definitely have at least suspected that the ECV might potentially have been the cause of the baby's death.

Still do, I might add.

Blue Cross of California v. Equiltox (Cal. Ct. App. - Sept. 20, 2022)

I have waited in vain today for a meaty published opinion that I felt like talking about. There was nothing from the Ninth Circuit today -- not even a "No Opinions Filed Today" notice -- and the two cases thus far from the Court of Appeal were fine, but not scintillating (to me, anyway).

On days like that, sometimes, I go ahead and check out the unpublished opinions from down here in San Diego. If only to entertain myself.

And when I did, for a moment, I thought I had accidentally clicked the wrong button. Actually, for quite a bit longer than a moment.

The latest unpublished opinion -- and hence the one I first read -- was this one. But when I looked at the caption, I thought that I must have somehow pulled up cases from the wrong division. Because I wanted to see cases from the 4/1 (San Diego), and yet this opinion clearly states right on the caption that it's from Orange County. That's in the 4/3.

So I went back and pulled up the cases again, making extra sure I pulled up only those from the 4/1.

Yet there was the opinion again.

Then I double-checked the top of the caption. Where it says, quite clearly, "COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE."

But what? The case is from Orange County. Judge Servino. What's up?

I read the whole opinion trying to figure out the scoop. No dice. The opinion mentions that the present case is related to a different one. But that one's from Orange County was well. Yet that one, too, seems to have a case number that starts with D. Meaning, yet again, the 4/1.

To reiterate: What's an Orange County case doing in the 4/1? Did the 4/1 do a hostile takeover of the 4/3, and if so, how come I never knew about it until today?

So I pull up the docket sheet for both the current case and the previous related case. At which point I see a reference to an intradistrict transfer order.in both cases (here and here). A transfer order that was entered shortly after the appeals were initially filed.

Okay, so now (1) I know I'm not crazy, and (2) that the case was indeed transferred.

But I still am left completely puzzled as to why.

It's not like the cases have anything whatsoever (as far as I can tell) to do with San Diego. It's a case brought by Blue Cross (which is everywhere) against a company called Equaltox, with a proposed intervenor -- the movant and appellant -- from Los Angeles (the "LA Good Samaritan Pathology Group").

So, again: Why San Diego?

My initial thought was that, maybe, the OC justices were simply busy, so as an administrative matter, maybe some cases were thrown down to SD. That might perhaps in part explain how the intradistrict transfer order was entered so rapidly in both cases.

But then I looked up the actual rule that authorizes intradistrict transfers. Which only made me even more confused. Because I'd have thought that the presiding judge would be the one to make such an administrative order (if one was indeed required). Yet the rule doesn't allow that. Not for workload reasons, anyway. The only reason the PJ had order an intradistrict transfer is because (1) there's an earlier related cases in the other division, which I don't see anywhere here, or (2) due to recusals that leave less than three judges available in the initial division, which seems utterly implausible for this run-of-the-mill appeal. 

So, if true, that leaves only the California Supreme Court as the entity that could authorize the transfer. But I don't recall reading or hearing anything about that anywhere. Did I miss something? (To be clear: that's totally plausible, I just don't remember anything like that happening.)

Anyway, it's now almost 3:00 p.m., and I have to pick up my youngest from school. So it remains a mystery to me how this OC case somehow makes its way to the Court of Appeal in SD.

If anyone out there knows, shoot me a line. I've love to hear the deats.

Salazar v. Target & Walmart (Cal. Ct. App. - Sept. 19, 2022)

I don't know whether Justice Codrington had anything to do with the timing of these two opinions, but it was certainly intriguing.

This morning, the Court of Appeal released the first opinion. Here's the first paragraph of that opinion, which recounts quite concisely what the opinion is about:

"After David Salazar bought Target Corporation’s White Baking Morsels incorrectly thinking they contained white chocolate, he filed this class action against Target for false advertising under various consumer protection statutes. The trial court sustained Target’s demurrers without leave to amend, finding as a matter of law that no reasonable consumer would believe Target’s White Baking Morsels contain white chocolate. We disagree, in large part because the White Baking Morsels’ price tag describes them as “WHT CHOCO,” which could lead a reasonable consumer to reasonably believe that they contain white chocolate. We therefore reverse."

There's 17 more pages of text (plus pictures!) that follow, but you get the basic point. The packaging appears to show something that looks darn similar to white chocolate, and then the price tag says "WHT CHOCO" on it, so, yeah, a reasonable consumer might perhaps think that the thing contains chocolate.

That opinion was published relatively early in the day. I read it. Sounds totally plausible.

Then, at 4:00 p.m. or so, the second opinion gets published. That one's also brought by Mr. Salazar. This time, against Walmart. It's another product that's (allegedly) packaged to look like white chocolate -- in this case, something called "White Value White Baking Chips." The opinion yet again contains photos of the packaging. Moreover, some of the paragraphs in this second opinion are lifted verbatim from the first opinion. (It's the same appellate panel, the same trial judge, and the same plaintiff's counsel in each case.)

But here's the rub: In the second case, there's no price tag -- or anything else -- that says "WHT CHOCO" or anything like it. Something that the first opinion says "in large part" was the basis for the holding there.

So the second case comes out the other way, right?

Nope. Same way. Reasonable consumer might be confused. Reversed.

Were I to be a big believer in conspiracies -- and, to be clear, I'm not -- I'd have thought that Justice Codrington deliberately published the first opinion first as a way of easing into the second. Lead with the easier case and then use that one to justify the same result in the harder one.

'Cause there was a meaningful time gap between the publication of those two opinions.

But, being the non-tin-foil-hat-wearer that I am, I suspect there's a much more mundane explanation lurking somewhere about.

In either case, reasonable minds might be confused. So it gets past the demurrer stage and, most likely, settles. Probably not for a lot. But at least for a little.

City of Oakland v. Oakland Raiders (Cal. Ct. App. - Sept. 15, 2022)

NFL creates meaningless, non-binding and open-ended set of "considerations" that team owners might want to think about when deciding whether or not to let teams move cities in order to stop Congress from enacting proposed legislation that might otherwise tie their hands. Oakland Raiders ask to move to Las Vegas and owners vote 31-1 to let them move. City of Oakland sues NFL and everyone who voted to let the team move claiming that it's a third party beneficiary of this (essentially meaningless) contract entered into by the NFL teams.

The Court of Appeal rightly disagrees, and affirms the judgment dismissing the complaint.

This is one of the easier billion-dollar appeals you'll ever see resolved. Not tough, in my view.

(It was much more difficult, by contrast, to figure out which professional football teams were which in the caption. When you look at the list of the represented parties, most of the teams are readily identifiable; e.g., "The Chicago Bears Football Club," "The Rams Football Company, LLC," etc. But you're a true NFL pro, by contrast, if you can tell me without looking it up which team is formally "PDB Sports Ltd" or "Pro-Football, Inc." I was able to figure out pretty much everyone else, but those two you either need to look up or figure out by process of elimination.)

Arega v. BART (Cal. Ct. App. - Sept. 14, 2022)

Sometimes the Court of Appeal gets incredibly angry with a particular attorney and says very harsh things. Other times, the Court of Appeal simply lets the facts speak for themselves.

This is one of the latter occasions.

Appellant's attorney is Dow Patten from San Francisco. It's an employment discrimination suit brought against BART. Here's a sample of the kind of lawyering with which the Court of Appeal (and trial court) had to deal:

"On June 17, Plaintiffs filed their motion pursuant to Code of Civil Procedure section 473(b) (“section 473(b)”) to set aside the judgment entered in BART’s favor. The motion was based on inadvertence, surprise, mistake or excusable neglect. Plaintiffs’ counsel asserted that on April 6, the day before the hearing on the summary judgment motion, he was out of the office due to ill health (flu-like symptoms) and was unable to review the court’s tentative ruling, which was “inadvertently not contested.”

On July 7, the trial court issued an order denying the motion to set aside the judgment, noting that a motion for relief under section 473(b) must be made within a reasonable time and the moving party must show it acted diligently in seeking such relief. The court found Plaintiffs’ counsel failed to offer any reason why the motion for relief was not filed until more than 60 days after entry of judgment for BART, and more than 70 days after BART’s summary judgment motion was granted. The court found counsel’s lack of diligence barred Plaintiffs from any discretionary relief under section 473(b). . . .

[On appeal] Plaintiffs argue that “controlling California authority mandates that the court continue a hearing on summary judgment where a [party’s] attorney is unavailable due to health reasons.” As Plaintiffs do not cite to any controlling authority that mandates such health-related continuances, we disregard this argument. (See Badie, supra, 67 Cal.App.4th at pp. 784– 785.) . . .

When a litigant repeatedly provides no citations to the record, the rule violation is egregious. (Evans v. Centerstone Development Co. (2005) 134 Cal.App.4th 151, 166–167.) “We may disregard a [party’s] statements of fact when those statements are unsupported by citations to the record. [Citation.] And we will not scour the record on our own in search of supporting evidence.” (Sharabianlou v. Karp (2010) 181 Cal.App.4th 1133, 1149 (Sharabianlou).) Here, Plaintiffs’ citations to Smith’s declaration take the following form: “(CT ____, See Appellants’ Evidence Submitted in Support of Summary Judgment Alena Smith Decl. ¶2),” providing no volume or page number citation to the record in none of the multiple references to the declaration. We disregard Plaintiffs’ arguments of direct evidence because of their consistent failure to provide volume and page number record citations to such evidence.

Moreover, the Smith declaration is not in the record. On appeal, we presume the judgment to be correct and indulge all intendments and presumptions to support it regarding matters as to which the record is silent. (Denham, supra, 2 Cal.3d at p. 564.) An appellant bears the burden of 21 overcoming the presumption of correctness by providing an adequate record that affirmatively demonstrates error. (See Defend Bayview Hunters Point Com. v. City and County of San Francisco (2008) 167 Cal.App.4th 846, 859– 860.) The failure to provide this court with an adequate record not only fails to satisfy an appellant’s burden to demonstrate error, it also precludes review of any asserted error. . . .

[Footnote:] In their reply brief, Plaintiffs claim without detail or explanation that “[t]he manner in which [BART] filed its Motion for Summary Judgment has caused several problems with preparation of the record.” Plaintiffs state that the “clerk’s record in this appeal contains errors and several of the documents identified in [their] Notice of Designation of Record have yet to be filed with the Court of Appeals.” They state that they “anticipate filing a corrected Opening Brief once the record is corrected;” “have requested the trial court cure the defects in the record on appeal;” and “respectfully request that oral argument be stayed until a corrected record is provided to the Court and Appellants have provided amended briefs with cites to the corrected record.” They ask that we direct the trial court to correct the record on remand.

We decline all of Plaintiffs’ requests and will not delay resolution of this appeal. Plaintiffs filed their opening brief in December 2021. At that point, given counsel’s inability to cite to the record, it was apparent that essential evidence was missing from the record. In the nine months since this appeal has been pending, Plaintiffs’ counsel has not asked this court to augment the record in any way, despite its awareness of its shortcomings. Neither the respondent nor the appellate court has a duty to augment an inadequate record. It is the appellant’s burden to provide an adequate record. (Jameson v. Desta (2018) 5 Cal.5th 594, 609.) In the absence of one, we presume the trial court determination under review is correct. (Jade Fashion, supra, 229 Cal.App.4th at p. 644.)

We also reject Plaintiffs’ request to stay oral argument until there is a corrected record and amended briefs. The day after Plaintiffs filed their reply brief, we issued a “Notice of Oral Argument Election” to the parties, indicating that to proceed with oral argument, the party seeking to proceed with oral argument must file a request and proof of service within 10 calendar days of the notice. No such request was received by this court by any party, and oral argument on this appeal has therefore been waived. . . .

Plaintiffs argue they established BART’s reasons were pretextual with evidence of the following: (1) Plaintiffs’ qualifications for the promotions; (2) Evaluation Committee members’ collaboration on applicant scores to remove evidence of bias; and (3) BART’s failure to take steps to ensure race was not a factor in Foreworker selection process. Not so.

Again, Plaintiffs’ briefing includes no citations to the record. In three pages of argument with over a dozen citations to evidence, there is not a single citation to “the volume and page number of the record where the matter appears.” (Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) While there are multiple references to “CT,” or the clerk’s transcript, every one is left blank. We disregard any fact unaccompanied by a proper record citation. (Sharabianlou, supra, 181 Cal.App.4th at p. 1149.)

Further, none of the proffered evidence appears in the record. Plaintiffs’ arguments refer to deposition testimony of Eric Thomas, who Plaintiffs’ explain was a non-African American promoted over them for the 2012 Foreworker position; the declaration of Alena Smith, the Chief Steward and silent observer discussed supra; and two witnesses testifying as BART’s persons most knowledgeable (Conteh and Moore). We have located none of this evidence in the record."

When the facts say everything you need to say, vitriol is sometimes entirely unnecessary.

Avilez v. Garland (9th Cir. - Sept. 8, 2022)

I thought a fair piece about this opinion over the weekend. Not about doctrine or anything, although there's surely important stuff at issue there. (The cases is about the availability of habeas relief and bond availability for people who are in immigration detention for prolonged periods; here for over a year.) Instead, I was mostly thinking about language -- words.

Chief Judge Murguia's opinion uses the term "noncitizen" to describe the petitioner in this case. Judge Bea writes a concurrence in which he decries the use of that term, and instead markedly prefers to describe the relevant class of individuals as "aliens." Chief Judge Murguia defends her use of this term in a footnote:

"This opinion uses the term noncitizen unless quoting language from the immigration statutes or past opinions containing the term alien. There are two reasons behind this choice. First, use of the term noncitizen has become a common practice of the Supreme Court, see Patel v. Garland, 142 S. Ct. 1614, 1618 (2022) (Barrett, J.); United States v. Palomar-Santiago, 141 S. Ct. 1615, 1619 (2021) (Sotomayor, J.); Barton v. Barr, 140 S. Ct. 1442, 1446 n.2 (2020) (Kavanaugh, J.) (“This opinion uses the term ‘noncitizen’ as equivalent to the statutory term ‘alien.’” (citing 8 U.S.C. § 1101(a)(3)), whose lead on matters of style we ordinarily follow, and of the Board of Immigration Appeals, e.g., Matter of Dang, 28 I. & N. Dec. 541, 543 (BIA 2022), whose decisions we review. Second, even if that were not the case, “[c]areful writers avoid language that reasonable readers might find offensive or distracting—unless the biased language is central to the meaning of the writing.” Chicago Manual of Style Online 5.253, https://www.chicagomanualofstyle.org/book/ed17/part2/ch05/psec253. html. The word alien can suggest “strange,” “different,” “repugnant,” “hostile,” and “opposed,” Alien, Webster’s Third New International Dictionary 53 (2002), while the word noncitizen, which is synonymous, see Alien and Noncitizen, American Heritage Dictionary of English Language 44, 1198 (5th ed. 2011), avoids such connotations. Thus, noncitizen seems the better choice. Respectfully, we do not see how this choice “comes at a real cost to litigants.” Judge Bea Concurrence at 43. Litigants may use either word, and we do not think our choice here will cause judges to “respond negatively” to litigants who use the term alien. See Judge Bea Concurrence at 43."

Judge Bea takes the opposite view, including for the reasons discussed in the above footnote. For one thing, Judge Bea says that he prefers the word "alien" because, he argues, the term "noncitizen" is "textually inaccurate as applied to the petitioner in this case, who is a citizen of Mexico." This seems to me by far the weakest of Judge Bea's arguments. Yes, he's a "citizen" -- of Mexico. But he's a "noncitizen" of the United States, and everyone understands that's the relevant comparison. Moreover, Judge Bea's preferred terminology suffers the same flaw. On his theory, the term "alien" is "textually inaccurate" as well, since the petitioner is not "alien" to Mexico. So I don't find this particular argument persuasive at all.

But what really had me thinking deeply over the weekend was Judge Bea's personal background and experiences. One upside of a diverse judiciary is that you sometimes get different perspectives. And here, one interesting thing is that Judge Bea was previously subject himself to deportation proceedings -- he's from Spain, and then Cuba, and after he attended Stanford on a non-immigrant visa, the United States tried to kick him out on the theory that he avoided the draft during the period in which he was competing on the basketball team for Cuba during the 1952 Olympics.

So Judge Bea's got some personal background in this area. And uses that background to effect, saying that the term "alien" "is not a pejorative nor an insult. I certainly did not consider it an insult to be referred to as an alien in my deportation proceedings."

That's useful. It's sometimes informative to get a personal perspective from someone who's not just looking at things from an isolated, academic viewpoint.

That said, with respect, that a particular word might not have been offensive in the 1950's does not say much, I suspect, about whether that term might be offensive in 2022. We said a lot of things, and used a lot of words, during that prior era that would -- quite rightly -- not be deemed polite or permissible in the modern era. This view reminded me of the occasional argument by those of a different generation  that it's okay to use the word "colored" to describe a certain minority group because (1) that word was commonly employed in the 1950s, and (2) remains what the "C" stands for in the NAACP. Both of the predicates of that argument are true. But still; that's not a word that one would use in the modern era, much less in a judicial opinion. (Even if, I might add, an outdated statute continued to contain that old language.)

Nonetheless, I thought that Judge Bea's perspective was valuable. Even if, in the end, I think that Judge Murguia has the better of the argument.

If only because, as Judge Bea himself argued, "distinctions matter. Words matter."

On that, we all agree.

Aguilar v. Walgreen (9th Cir. - Sept. 7, 2022)

Three brief comments about today's opinion from the Ninth Circuit:

First, what a clusterfart. (As we say in this mostly-suitable-for-family blog.) One group of lawyers files a wage-and-hour class action against Walgreens, a month later another group of lawyers files a similar suit, and then the two groups of lawyers fight it out for years over which one gets the settlement booty. It's bad enough to have to fight the other side; to have to fight off lawyers on your own side as well makes it truly a hassle.

Second, on the merits, I don't disagree with Judge Bea's holding that there's no appellate jurisdiction here or his refusal to grant extraordinary mandamus relief. But when he takes a brief look at the merits to see if there's clear error, I'm not at all confident that he's right when he says:

"Here, Gallo/Wynne argued on behalf of Objector Vasquez that the proposed settlement 'is not fair, it is not adequate, and it is not reasonable,' and that it should therefore be denied. But Gallo/Wynne simultaneously advised certain putative Caves class members to join the proposed settlement, which necessarily seems to require the position, contrary to that of Objector Vasquez, that the settlement is fair, is adequate, is reasonable, and that, therefore, the settlement should be approved."

Just because you advise one of your clients to join a proposed settlement doesn't "necessarily [] require the position" that such a settlement "is fair, is adequate, [and] reasonable." It might instead be totally good for one client -- the client you advise to accept the thing -- but totally bad for another and/or bad overall. Take a proposed settlement, for example, that gives everyone who ever used RoundUp a flat $300 as payment for their injuries. I might well tell my 101-year old grandmother who used RoundUp once or twice and who's in perfect health to take the deal, while simultaneously telling my 55-year old brother who used the product repeatedly, has Non-Hodgkin Lymphoma, and has incurred over $1 million in medical expenses treating this terminal disease to refuse the deal. (These examples are not hypothetical, by the way; sadly, in the latter case.) Just because a deal is a good one for one client doesn't mean it's good for the class or fair, adequate and reasonable overall, nor does that mean there's a per se conflict. Because each person is different -- or at least might be. There perhaps is a potential conflict, but it's not per se.

So the right answer here, I suspect, but with some overly broad language that doesn't strike me as right, and that might perhaps be used to poor effect in the future.

Finally, and least importantly: I always thought the name was "Walgreens" for both the store and for the company. Nope. "Walgreen" for the company. No s. Even though the stores, website, and everything else have the last letter. It's the Walgreen Co.

You learn something new every day.