Brooks v. Yates (9th Cir. - March 28, 2016)

I tend to side with Judge Kozinski on this one.

Not that anyone's expressly disputing what he says.  The opinion is per curiam.  The opinion says that the petitioner gets habeas relief.  The opinion says that the petitioner had been essentially abandoned by his attorney, and names that attorney.

But Judge Kozinski doesn't think that's necessarily enough.

Judge Kozinski has gotten some flack from others in the Ninth Circuit recently for allegedly acting like a "roving commissioner" looking to identify and root out misconduct by lawyers.  And this is yet another case in which there's alleged misconduct that leads to an appeal.

So Judge Kozinski feels like defending his practice.  And this is a perfect example, in his view, of when -- and why -- spelling things out in detail appropriate.

Here's what Judge Kozinski says:

"I join and applaud the majority’s sound disposition. I write separately in fulfillment of our venerable obligation “to the public [to issue] a civil reprehension of advocates, where there appeareth cunning counsel [or] gross neglect.” Francis Bacon, Essays, Civil and Moral in 3 Harvard Classics 7, 139 (Charles W. Eliot ed., 1909). As the principal opinion demonstrates, Brooks’s federal habeas counsel, Gregory H. Mitts, satisfied both of these categories by ignoring Brooks’s communications, missing deadlines and then concealing his dereliction. In doing so, he jeopardized his client’s chance to obtain federal habeas relief. Maj. at 6. Yet Mitts continues to practice law in California with no mark on his record that would apprise prospective clients of the grave risks of hiring him to represent them. . . .

The facts are even worse than one would gather from reading the majority opinion. After Mitts was retained in March 2010, Brooks apparently sent a letter (not in the record) suggesting how the case might be handled. In October, Mitts sent an imperious response admonishing Brooks not to “micromanage” the case from prison. The letter also mentioned offhand that the California Supreme Court had denied Brooks’s pending post-conviction relief petition, but didn’t say when. Nevertheless, Mitts assured Brooks that he was “aware of the time constraints attendant to” filing his federal habeas petition.

That turned out to be untrue. Brooks’s federal habeas deadline expired just days after Mitts wrote to Brooks, but Mitts sat on his thumbs. Over the next year, Mitts systematically ignored a stream of letters that Brooks sent inquiring about the status of his case. In May 2011, Brooks wrote to Mitts pointing out his “lack of regular communication” and asking Mitts to call him at the prison. Brooks wrote again the following month, explaining that Mitts’s silence was “extremely frustrating.” Having heard nothing, Brooks wrote yet again in July. To facilitate a response, Brooks enclosed questions to which Mitts could provide “yes/no” answers and brief explanations. Brooks begged Mitts to “PLEASE ANSWER THESE QUESTIONS AND MAIL THEM . . . WITHIN 2 WEEKS.” Brooks continued to send letters to Mitts approximately once a month over the next four months. In August, he reminded Mitts of his responsibility to “be in contact and communicate with [your] client” and mentioned that he had been waiting “almost a year” for responses to his “11 previous letters.” In October, Brooks sent Mitts an “urgent” letter imploring him to communicate, even if it meant referring him to a paralegal.

In August 2011, ten months after the deadline expired, Mitts finally deigned to file a federal habeas petition, apparently without notifying Brooks. When the district court issued an order to show cause as to why the petition shouldn’t be dismissed as untimely, Mitts didn’t file a response or notify Brooks of the order. Mitts later explained that he did not respond to the show-cause order because he couldn’t contest the court’s untimeliness finding. When the magistrate judge recommended that the petition be dismissed, Mitts didn’t object. The district court thus entered final judgment on a habeas petition that Brooks didn’t even know had been filed on his behalf. Mitts has never explained why he missed the filing deadline by almost a year, or why he did not notify his client immediately of the default and subsequent court orders. . . .

A lawyer who comports himself as Mitts did is not only a hazard to clients, but also a menace to the profession and to the courts. Mitts’s actions consumed countless hours of this court’s and the district court’s time in dealing with his obstinate incompetence. If Mitts was so lackadaisical in Brooks’s case, we can only imagine what problems he’s caused, or is likely to cause, other clients. Potential clients, who will put their lives in Mitts’s hands, as Brooks did, are entitled to know that this lawyer ignores client inquiries, misses jurisdictional deadlines and does not own up to his mistakes."

I think that's a pretty persuasive argument.  Sure, there's a power differential when a member of the judiciary calls out an attorney in a published opinion.  Particularly since the ability of the attorney to draw a similar audience for any refutation of what the judge says is generally pretty low.

But when you're confident that an attorney has a serious problem, Judge Kozinski seems right that the protection of the public may justify calling him out.  If only so others, in the Google era, can perhaps learn of the attorney's prior conduct before they elect to put their lives in his hands.

Judge Kozinski ends his concurrence by saying:  "I am unaware of any disciplinary action currently underway to address what appears to have been misconduct by Mitts. The State Bar of California may not yet be aware of Mitts’s behavior. Perhaps now it will be."  No need for the "Perhaps".  I'm extremely confident the opinion will make the Bar aware this problem.

Extremely.

People v. Florez (Cal. Ct. App. - March 25, 2016)

I'd mention this opinion even if there wasn't a dissent.  If only because the factual settings are somewhat unusual.

It's a three strikes case where the defendant was sentenced to 25 years to life after the police caught him urinating in public.  At which point he dropped a small bag containing 0.19 grams of cocaine.  That got him put in prison forever.

After Proposition 47 passed, Mr. Florez petitions for resentencing.  But the trial court says that he's too dangerous to release.

His commitment offense -- which was in 1999 -- doesn't demonstrate dangerousness at all, obviously.  But in 1976 (!), Mr. Florez did rob two convenience stores.  More significantly, in 1983, he placed a knife at the throat of a 7-11 store employee and demanded money.  And in 1990, there's another knife at a victim's throat, this time when he also beats the victim and takes his car.

But on Mr. Florez's side, that last violent offense was in 1990.  Over a quarter century ago.

Oh, yeah.  And Mr. Florez is now 66 years old.  Having already served 18 years of his three strikes sentence.

That 66-year old (63 at the time he filed his petition) is the person the trial court thought was way too dangerous to be released.

Now, Mr. Florez has been a bit more, shall we say, "active" in prison than most of your inmates of Social Security age.  Or at least he was when he was a bit younger.  He hit another inmate with a broomstick in 2004, engaged in mutual combat with another inmate in 2007, and fought another inmate again in 2009.  Mr. Florez says that these were basically instances of self-defense.  But they are still fighting.  Albeit in prison.

Still, the last fight was in 2009.  On the bad side, he was reasonably aged then -- the last fight was when he was 55.  But on the good side, 66 ain't 55.  Your ability, or willingness, to get violent with someone in your 50s is a lot different at that age than when you're starting to notice different walker models.  Statistics, not surprisingly, back that up.

So there's an interesting debate here about when this now-66 year old who's served 18 years in prison for dropping a bindle of cocaine in the twentieth century is really sufficiently violent that he's a continuing danger to society.

But then there's also Justice Rushing's dissent on a legal point.  Which would merit mention of this case even if it stood alone.

I won't get into the details.  I'll just let you read the first paragraph of that dissent for yourself:

"My esteemed colleagues join a number of courts in refusing to apply Penal Code section 1170.18, subdivision (c) (§ 1170.18(c)), according to its plain meaning. To the best of my knowledge, only one of those decisions is currently citable. (People v. Esparza (2015) 242 Cal.App.4th 726, 734-737; see Cal. Rules of Court, rules 8.1115(a), 8.1105(e)(1).) Although I joined in that decision, I have concluded on further reflection that I erred in doing so, as I believe my colleagues continue to err here. All of these cases should be governed by the fundamental principle that statutes possessing a plain meaning must be given effect in accordance with that meaning. None of the recognized exceptions to this rule is present. Least of all can the language at issue here be credibly said to involve a 'drafting error.' The real rationale for refusing to enforce the statute according to its terms is that the effect of the statute‘s plain meaning was not pointed out in the ballot pamphlet to the voters who adopted it. I have concluded that for a court to disregard plain statutory language on such a ground is obnoxious to the constitutional separation of powers. I have also concluded that, carefully read, the statute contains ample intrinsic evidence that it is intended to accomplish exactly the result my colleagues attribute to a drafting error. In addition, it is apparent that opponents of the measure were aware of this effect and that, while they apparently chose not to refer to it in their argument in the ballot pamphlet, they did urge it in the surrounding public debate as a ground to reject the measure. For those reasons, I would apply the statute as written and would reverse the judgment here so that the trial court can reassess the issues under the legal standard mandated by section 1170.18(c)."

Read the rest if the foregoing whets your appetite.  Interesting stuff.

People v. Soto (Cal. Ct. App. - March 25, 2016)

It's bad enough when you're violating a protective order by following your ex-wife's bus in your car.

It's even worse when you're driving on a suspended license.

Drunk.

Ledezma-Cosino v. Lynch (9th Cir. - March 24, 2016)

Do we still have federal statutes that refer to "habitual drunkards"?

Apparently so.

Anyone so labelled isn't eligible for cancellation or voluntary departure in deportation (removal) proceedings.  Judge Reinhardt authors a majority opinion today holding that this statute violates the Equal Protection Clause.  The way he frames the issue is this:  "[I]s it rational for the government to find that people with chronic alcoholism are morally bad people solely because of their disease? The answer is no."

Judge Clifton dissents.  He thinks the statute is fine.  Plus, he begins his dissent with a point about how the issue was raised, saying:  "The words 'equal protection' did not appear in the opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino. Given that, it is not surprising that they did not appear in the government’s answering brief, either. Ledezma did not file a reply brief. So how did the issue arise? The argument deemed persuasive in the majority opinion is an argument of the majority’s own creation. Ledezma did not make that argument until urged to do so by the majority at oral argument and via a subsequent order for supplemental briefing. Perhaps that pride of authorship helps to explain why the majority finds the argument persuasive, despite its obvious and multiple flaws."

Judge Reinhardt's majority opinion is joined by a district judge sitting by designation.

I don't think you've heard the last word about this case.  Because votes en banc and/or for review by Supreme Court seem likely to me.

Smith v. Obama (9th Cir. - March 22, 2016)

One fairly facile way of making a case moot -- or potentially moot, anyway (hence justifying a remand to the district court) -- is to simply wait it out.  That way you won't have to write an opinion.

So Anna Smith challenges the metadata program of the USA PATRIOT Act in 2013, and an appeal of the district court's decision is filed in 2014.  The oral argument of that appeal transpires later in late 2014.  So in  normal circumstances, you'd expect an opinion sometime in 2015.

But the panel instead waits.  Because the PATRIOT Act was set to expire in June of 2015.  It got replaced by the USA FREEDOM Act, which was slightly different.  Plus there were some intervening decisions of the FISC.

So, come 2016, the Ninth Circuit is ready to dispose of the case.  So today, it dismisses part of the appeal and moot and remands other portions back to the district court for an initial determination of whether the remaining portions are moot as well.

Problem "solved".

People v. Aguilar (Cal. Ct. App. - March 22, 2016)

I'm not going to recite all the facts of this rape conviction, since they're (1) long, and (2) brutal.  Nor will I describe the defendant's purported version of the events.

I'll nonetheless say that if you ever wonder why criminal defense attorneys don't have their clients testify, today's opinion is a good explanation.

Defendant's story was simply not credible.  Full of holes.  Not plausible.  No way a jury was going to believe it.

Plus it let the prosecution get in the defendant's prior gun conviction.

Next time your criminal defense client insists upon testifying, have 'em read this opinion.

U.S. v. Nickle (9th Cir. - March 21, 2016)

The Ninth Circuit not only reverses a conviction today, but reassigns the case to a different judge on remand.

It says it does so in order to preserve the appearance of justice.  And that's undoubtedly true.  In part.

But I think the real reason is because the panel is profoundly distressed that the district court judge -- Judge Haddon (in Montana) -- didn't let the defendant plead guilty, for reasons far afield from what judges may legitimately invoke.

Once you start doing crazy things, the Ninth Circuit starts to be worried that you may be crazy.  And thinks about reassigning the most egregious of your cases to a different judge.

Ebner v. Fresh, Inc. (9th Cir. - March 17, 2016)

The Ninth Circuit and I simply have differing views about the reasonable expectations of consumers.

There's a lip balm called the Sugar Lip Treatment that's basically (as I understand it, anyway) just a high-end sort of Chapstick or Burt's Bees.  The package says it contains 4.3 grams of lip balm or, for the "mini" size, 2.2 grams.  And that's right.

To a degree.

I say "to a degree" because the Sugar Lip Treatment packaging makes sure that the user can only actually use 75% of the product.  There's a "plastic stop device" that stops the other 25% from going over the top of the applicator and hence being applied to the lips.

I agree with Judge Tashima that there's no legal violation for the actual statement that there's 4.3 (or 2.2) grams of actual product.  Because there is, in fact, that amount of product.

But Judge Tashima, and the rest of the panel, also think it's okay not to include a supplemental statement that discloses something like "But you can only actually use 3.2 or 3.3 of those 4.3 grams because we have designed the package to make you throw away a full quarter of the product, unlike some other manufacturers (like Burt's Bees) who let you use the whole thing."  That's because, according to Judge Tashima, every "reasonable consumer" would "understand[] that some product may be left in the tube to anchor the bullet in place" since they're familiar with these sorts of tubes.

That's where the panel and I part ways.

First off, it's simply not true.  Factually.  Or, at a minimum, there's one consumer in the universe who thinks it's not true.  Me.  Because there some plastic stop gaps come over the lip of the dispenser, thus allowing you to apply all the product.  At least if you try hard enough.

I'm admittedly not intimately familiar with lip balm.  But I do use roll-on deodorant, which works on the same principle.  And you can get at all, or virtually all, of the product if the plastic "holder" stops over -- rather than under -- the lip.  That can happen.  That does happen.

So when Judge Tashima says that everyone understands that some product may be left in the tube, I think that statement's only accurate if you put a heavy emphasis on the word "may".  Maybe it could be.  Maybe it wouldn't be.  Maybe all of it will be usable.  We don't uniformly understand that every tube leaves a block of the product deliberately stuck down the tube.

More importantly, even if I -- and everyone else -- knows that there might be some product left in the tube, that doesn't mean necessarily mean it's okay for a quarter of the product to be designed to get stuck down there.  Yeah, truthfully, I know that when I get to the end of a deodorant thingy (I don't know what they're technically called -- that's my dysnomia showing itself), there's often a bit left in the little gap.  And when I have to rub my underarm against the plastic to get the rest out, that hacks me off a bit.

But I'd be super hacked if a quarter of the thing was left.  That is not what I would expect.  And I'd be miffed -- super miffed -- if I bought a product and discovered it was packaged that way.  Indeed, were I to know that at the outset, I might well not buy it.

That, in my mind, is what a reasonable consumer might expect.  They might expect a tiny bit of some product to be left in the can.  But not a huge amount.

And twenty-five percent sounds huge.

That's the part of Judge Tashima's opinion I don't get.  Nowhere does he address how much -- if any -- is too much.  And there's got to be a line, otherwise I definitely disagree with the opinion.  At least according to the actual words of the opinion, the Ninth Circuit's holding seems to be that a product in a tube wouldn't be deceptive even if 99.999% of the product was stuck beneath the tip, unusable.  It seems like the Ninth Circuit would simply say, as it does here, that  "the consumer’s knowledge that some additional product lies below the tube’s opening is sufficient to dispel any deception; at that point, it is up to the consumer to decide whether it is worth the effort to extract any remaining product with a finger or a small tool."

Yeah, because that's what a reasonable consumer would be fine with.  Ninety nine percent of the product underneath the tube's just fine so long as I can eventually get at it with a toothpick or pocket knife and slab it on my face.  That's definitely what I'm paying for.

If this had been a case on summary judgment, and there were uniform consumer surveys that said that everyone's cool with having a full 25% of the product below the line, I'd be okay with the result.  I'd be surprised, admittedly.  But were that the state of the evidence, well, it is what it is.  Maybe at the high end of the lip balm industry people are fine with 25%, or 50%, or 99% (or whatever) wasting away in the tube.  Not me, mind you.  I'm likely hacked off once the number starts hitting the double digits.  And I'd call myself a reasonable -- indeed, informed -- consumer.  But I admit I'm not the kind of guy who pumps his lips full of lip balm, and if all of those people are happy with 99% wasted, so be it.  Summary judgment.

But this is a 12(b)(6) motion.  The Ninth Circuit decides, as a matter of law, that no reasonable consumer could possibly care or be deceived about a product that says it contains 4.4 grams of product but in fact is deliberately designed so you can only get at 75% of it.

I'll have to respectfully disagree with that.  'Cause I think I'd be precisely such a consumer.  And can readily conceive that there might be at least one of me who might buy this particular product.

Hence the need for actual evidence.

At some point, I could get on Judge Tashima's bandwagon.  At 1% loss, I'd be on board for saying that no reasonable consumer would be deceived.  Ditto for 5%.

And I can't tell you exactly where I'd end.  Might change from product to product.

But I can tell you that at 25%, we're way past the line.  At least for me to dismiss a lawsuit as a matter of law.

It's a pernicious opinion.  Consumers should be informed.  Manufacturers shouldn't have an incentive to employ designs that force you to buy more than you intend.  God forbid that Pringles start getting packaged in a Chapstick-like tube where you've got to dig out a quarter of the Pringles with a fork.

So I don't like this one.  It seems wrong to me to decide this as a matter of law.

It's an opinion that makes the marketplace less informed, not more.  Less efficient, even.

That's bad.

People v. Appleton (Cal. Ct. App. - March 15, 2016)

You get used to seeing a certain pattern in these types of cases.  Today's opinion breaks the pattern in a couple of different ways:

"At the time of the offense, defendant was a 43-year-old computer technology worker in Mountain View. In July 2013, John Doe contacted the police and made the following statement. In early 2013, he met defendant through Grindr. Doe was 16 years old at the time. For several months, defendant and Doe maintained a consensual relationship that involved kissing, handholding, and sleeping together, but no further sexual conduct. In July 2013, Doe stayed at defendant’s residence for several days. Around midnight on July 12, defendant and Doe were sleeping in defendant’s bed when two male friends of defendant entered the bedroom. The three men forced Doe to orally copulate them over a period of about 15 to 20 minutes. Doe left the residence at around 1:00 a.m. and called the police later that night. He told another witness one of the men had forcibly sodomized him.

Doe declined a SART exam. After he expressed suicidal thoughts, he was taken into custody under Welfare and Institutions Code section 5150.

Police interviewed Doe several days later. He made the following statement, which differed in some respects from his initial statement. He had met defendant on Grindr one year earlier, but they did not start dating until February 2013. At that time, defendant bought Doe an iPhone and performed oral sex on him. Defendant performed oral sex on Doe three other times, and the two slept together for a period of several days, but they engaged in no other sexual conduct. Doe reiterated that defendant and two of defendant’s friends forced him to orally copulate them in July 2013 when Doe was sleeping in defendant’s bed. Doe declined to make a pretext call."

The charges, and the disposition, are different than you might initially expect as well.  No charges for rape.  And a favorable deal:

"The prosecution charged defendant by felony complaint with oral copulation with a minor. (Pen. Code, § 288a, subd. (b)(1).) The parties entered a plea agreement whereby defendant pleaded no contest to false imprisonment by means of deceit (Pen. Code, §§ 236, 237, subd. (a)) in exchange for formal probation, credit for time served, and dismissal of the oral copulation count. In accord with the plea agreement, the trial court suspended imposition of sentence and granted a three-year term of probation to include a jail sentence of 236 days."

Presumably no sex offender registration either.

Not your usual case of this type.

People v. Nestdrop LLC (Cal. Ct. App. - March 14, 2016)

Capitalism definitely puts a premium on creativity.  At least when demand for the underlying product is, shall we say, high:

"Pycher, Radnia, and Adam Larson founded Nestdrop in 2013. Initially, the Nestdrop app allowed Los Angeles-area users to order alcohol for local delivery within the hour. In October or November of 2014, Nestdrop’s developers expanded the app to allow deliveries of medical marijuana in parts of the City. To procure marijuana through the app, a user orders from a menu of products. The order is then placed with a medical marijuana business with which Nestdrop has partnered. According to defendants, an employee of the providing medical marijuana business or a “volunteer” then delivers the marijuana to the purchaser."

Capitalism isn't the only creative force.  The Court of Appeal demonstrates its cultural awareness as well:

"Defendants . . . . contend the measure summary and impartial analysis that appeared in the ballot pamphlet materials for Proposition D described the ordinance as authorizing delivery of medical marijuana by vehicles and they maintain that the voters enacting the proposition adopted that construction. This argument is meritless. We do not rest our interpretation of an ordinance on statements in ballot pamphlet materials where the text of the measure is otherwise unambiguous. [Citations]  But more to the point, and paraphrasing Inigo Montoya, we do not think the ballot pamphlet materials mean what defendants think they mean."

Inigo Montoya got his man in the end.  But Los Angeles area residents can't get their weed via delivery.  So holds the Court of Appeal.

Orcilla v. Big Sur, Inc. (Cal. Ct. App. - March 11, 2016)

From the Court of Appeal this morning:

"It is ordered that the opinion filed herein on February 11, 2016, be modified in the following particulars:

On page 6, the second full paragraph, insert the following as a footnote after the last sentence in the paragraph (“The Orcillas timely appealed.”):

While this matter was pending, the parties notified us that the case had been settled and the Orcillas requested dismissal of the appeal. “After the record on appeal is filed, dismissal of the action based on abandonment or stipulation of the parties is discretionary, rather than mandatory.” (City of Morgan Hill v. Brown (1999) 71 Cal.App.4th 1114, 1121, fn. 5; Cal. Rules of Court, rule 8.244.) We concluded that the matter is important and of continuing public interest, warranting our review. (Burch v. George (1994) 7 Cal.4th 246, 253, fn. 4.) Accordingly, we denied the request for dismissal. In deciding the appeal on the merits, we follow established precedent in retaining jurisdiction to resolve the issues presented in the case."

That probably should have been in the original opinion.  But better late than never.

Burton v. Davis (9th Cir. - March 10, 2016)

When Judge Bybee (joined by Judge Rawlinson) writes the majority opinion  in a death penalty habeas case, and grants relief, you should already have a very good sense that he's right.  Even if Judge O'Scannlain dissents.

That's the case here.

It's a pre-AEDPA case.  Judge Bybee expressly notes in a footnote that the result would go the other way under AEDPA.  But since there's a circuit case on point, Burton gets a new trial.

Mind you, Burton's been on death row for thirty-two years.  That's a long time for a case to work its way through the state and federal systems.  Especially for, as here, a first habeas petition.

But it is what it is.

Preserve Poway v. City of Poway (Cal. Ct. App. - March 9, 2016)

I think this case is closer than the Court of Appeal's opinion makes it out to be.

Not that the Court of Appeal necessarily gets it wrong.  Indeed, I have a lot of sympathy for where the Court of Appeal comes out.

But it's a decently close case.

A landowner currently operates a horse stable in the City of Poway, which likes to think of itself as a funky little country town in the middle of a city.  Now, having been to Poway many times, that's not really how I think of the place.  But be that as it may, some residents of Poway have this belief about its character, and the presence of a big horse stable in the City is consistent with that characterization.

But the landowner wants to sell off the stables and build a dozen houses on the property.  Those lots would be a bit bigger than normal, and would allow horses on 'em.  But that would nonetheless make the City look a bit less "country" than it is presently.  So some neighbors sue, claiming that there's a need under CEQA for an environmental impact report.  The trial court agreed.

But the Court of Appeal reverses.  Yeah, Justice Nares says, there may well be an impact on the city if the project goes forward.  But it's only a "psychological and social" one -- the loss of a nice place to board and ride horses -- and those types of impacts are categorically exempt from CEQA.  So there's no need for an EIR.  Reversed.  Justice Nares rejects the proposition that, as he puts it, "because Rogers, a private property owner, obtained a conditional use permit to operate horse stables they have enjoyed using for 20 years, the public has a right under CEQA to prevent Rogers from making some other lawful use of his land."

There's a lot to be said for the validity of the Court of Appeal's holding.

But there's a fair piece to be said on the other side, too.

My own view is that there's an incredibly fuzzy line between "psychological and social" impacts, which are admittedly not cognizable under CEQA, and impacts that are indeed cognizable.  For example, Justice Nares admits that "community character" impacts may require an EIR, and that those may validly include aesthetic impacts.  Well, at issue in this case is whether the City will lose a horse stables, and its associated expansive pastures, and have 'em replaced with twelve homes.  That change definitely affects the "look" of the City.  I could easily see someone thinking that a nice little horse stables with its broad pastures is a ton more attractive than twelve homes plopped on the same piece of property.  If that's the case, then there's a potential need for an EIR under CEQA.

Now, it's true that, here, the alleged "social" impacts of getting rid of the stables are broader than just not having something pretty to look at:  no more ability to board horses, to have your kids learn how to ride, etc.  But that some of the impacts are social doesn't mean that others aren't validly aesthetic.

In the end, really, I think that all of the aesthetic impacts of a development -- which can be considered -- are also "psychological and social" ones that can't.  Something's pretty.  The loss of that thing will potentially make people less happy.  That's a psychological and social impact, to be sure.  But it's still one that can be considered.

Now, I'm somewhat sympathetic with the view that someone can't be compelled to keep a pretty piece of property the same just because it's pretty.  At least when there are other properties in the area that are of the same un-pretty type that the landowner wants to create.  Which is indeed the case here, since there are other single-family homes in the area.

But as for an alleged sharp dividing line between the "psychological and social" impacts here, on the one hand, and "aesthetic" impacts on the other, well, that's less persuasive to me.

I have little doubt that Poway will be a tiny bit less aesthetically pleasing after the horse stables get replaced by single family homes.  So I'm not sure that this impact can be categorically shrugged off as merely a "psychological and social" impact of the project and hence noncognizable under CEQA.

Castillo v. DHL Express USA (Cal. Ct. App. - Jan. 16, 2016)

I tell students in my upper-year class on pretrial practice that California has a longstanding mandatory five-year dismissal rule that compels trial courts (with limited exceptions) to get rid of lawsuits that have been around for that long.  I also tell them, however, that in the modern era, with fast-track rules and modern case management techniques, that this statute is rarely applied, since neither courts nor litigants generally let cases linger for incredibly long periods like they used to in the old days.

But "rarely" doesn't mean "never".  As this opinion demonstrates.

I'm not sure why the plaintiff wasn't more careful.  I'm not sure why the trial court let the case linger for so long.  But both things transpired.  And, as a result, a litigation that may well have had merit -- a wage-and-hour class action against DHL -- gets dismissed.

It doesn't often happen.  But when it does, it's devastating.

Especially when it happens to you.

People v. ZarateCastillo (Cal. Ct. App. - Feb. 17, 2016)

This is why you have to be super careful when you ask questions of a witness in a criminal case:

 "The prosecutor then elicited the following testimony:

Q. And did she tell you if this touching was done under or over her clothing on her top area or both? A. Both.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.
Q. Did she describe the touching of her top area under her clothing to have happened more than once?
A. Yes.

As the People observe, the last two questions are exactly the same, and the answers to both of those questions establish only that defendant touched the victim’s chest under her clothing more than once. The People concede that '[r]eview of the record does not demonstrate that the prosecutor [ever] asked Detective Price whether [the victim] described the touching of her top over her clothing to have happened more than once.' (Italics added.) It may be that the prosecutor meant one of her questions to cover touching over the victim’s clothing but misspoke, or it may be that the prosecutor did, in fact, ask about the touching over the victim’s clothing but the court reporter did not record the question correctly. Whatever the case, however, it makes no difference for our purposes. On the record before us, there is no evidence that defendant touched the victim’s chest over her clothing more than once. Accordingly, as defendant contends, the evidence is insufficient to support his conviction on count 3, and therefore we must reverse that conviction."

Oops.

Not that it's going to make much of a difference in the present case.  Defendant's still going away for decades on the other counts.

But still.  Gotta be careful.

Shell Offshore v. Greenpeace (9th Cir. - March 4, 2016)

There's one part of today's opinion that confuses me.

The district court enters an injunction that orders Party A to stop doing X, and says that for every hour it continues to do X, it'll be fined $2,500.  Party A eventually stops doing X -- the coercive sanction works -- but allegedly did X for seven hours after the deadline, thereby incurring a fine of $17,500.  But before the district court resolves the disputed issue about the seven hours (and determines the relevant fine), Party A appeals the injunction, and the action is stayed.

So there's no actual determination of the fine yet.  And, because the injunction is time-limited, and there's no continuing violation of it right now, the injunction has now expired.

But the parties continue to dispute whether the injunction was valid and whether Party A actually violated it (and hence should be fined $17,500).  That's the dispute on appeal.

The Ninth Circuit, however, dismisses the appeal of the injunction as moot.  Holding that since Party A has stopped violating the injunction (which has now terminated anyway), there's no live dispute.

But what about the $17,500?

The Ninth Circuit says that the fine doesn't matter now since Party A has stopped its contemptuous conduct; i.e., the threat has worked.  True enough.  But surely it still owes the fine, right?  At least if the injunction was valid, which is what the disputed appeal is about.

The Ninth Circuit appears to say otherwise; that, at this point, Party A doesn't have to pay the fine, since the point of the fine (to coerce compliance) has now passed.  Perhaps that's true as a theoretical matter, but practically, the argument doesn't really work for me.  Contempt fines don't work -- or at least don't work well -- if you can make them moot by filing an appeal and eventually comply with the injunction, thereby avoiding the actual imposition of a fine that's ostensibly now "moot".

I may well be worried, and comply, if you threaten to spank me for $2,500 for every hour I delay.  But if you don't actually impose that sanction, or -- worse -- if the Court of Appeals says that you can't impose that sanction as long as I've eventually complied, I can tell you right now that the extent of my worry, and the rapidity of my compliance, will almost certainly diminish.

I understand that, under the Ninth Circuit's ruling, in some circumstances, I might still worry about an eventual fine; e.g,, if the injunction is unlimited in time, (maybe) if the district court rapidly gets off its butt and determines an amount, etc.  But I imagine there are lots of situations that are exactly like the present case.  And if belated compliance moots out otherwise valid contempt fines, it's eminently conceivable to me that district courts will have a much harder time enforcing their orders.

Which would be a bad thing.  For me, anyway.  (Not so much for Greenpeace.)

People v. Adams (Cal. Ct. App. - March 3, 2016)

From this opinion:

"Defendants were cousins and fellow members of a violent street gang. May 2 was the gang’s 'birthday' or 'gang day.' On May 2, 2011, Diane T. was working as a prostitute. . . . Defendants approached Mr. Odhiambo’s car. Mr. Moreland pointed a black gun at Mr. Odhiambo’s head. Mr. Moreland took Mr. Odhiambo’s car keys and money. Mr. Adams asked Diane for money. He forcibly searched inside her pants and bra. Mr. Adams grabbed Diane and dragged her to the white car. Mr. Adams raped Diane in the backseat. Mr. Adams then moved to the driver’s seat. Over the course of an hour or more, while Mr. Adams drove, Mr. Moreland repeatedly sexually and physically assaulted Diane in the backseat. Mr. Moreland was armed with a gun during the assaults. Mr. Moreland forced Diane several times to orally copulate him. He repeatedly raped her. Mr. Moreland attempted to sodomize her. He repeatedly hit her on the head. . . .

Mr. Moreland ordered Diane out of the car. He punched her in the face breaking her jaw. Mr. Moreland told Diane to get on her knees. He ordered her to orally copulate him. Diane refused. Mr. Moreland pointed the gun at Diane’s forehead and fired twice. But the gun malfunctioned. Diane heard it click. Diane saw Mr. Moreland 'messing with the gun.' He was hitting it against his hand. Diane got up and started to run. Mr. Moreland ran toward the car. She heard him arguing with Mr. Adams. Mr. Adams said, 'Stop, bitch.' Diane stopped behind a truck. Mr. Adams pointed the gun at her. She heard a click. Diane ran to a nearby house and summoned help. Defendants left the scene.

After law enforcement officers arrived at the cul-de-sac, Diane described her assailants. Diane said one suspect was a 25 to 35 year old light skinned male Black, approximately 6 feet tall with a muscular build. The second suspect was a 25 to 30 year old dark skinned Black male, approximately 6 feet tall with a thin build. . . . Diane also worked with a forensic artist, Sandra Enslow, to create sketches of the perpetrators. At trial, Diane testified, '[The sketch artist] drew them perfect.' The jury was able to compare the sketches to defendants’ booking photographs as well as to how they appeared in the courtroom. Upon our own review, it is apparent that the sketches bear a striking resemblance to the defendants."

Let's hear it for the sketch artist.  That can't be an easy job.  Well done here.

Tarango v. McDaniel (9th Cir. - March 3, 2016)

This opinion is all about the I-15 in Las Vegas.

A bunch of off-duty Las Vegas cops are hanging out at a local bar listening to a band of other off-duty Las Vegas cops.  Masked men make the unfortunate election to rob that particular bar on that particular night, entering the bar and announcing that it's a robbery.

You can guess what happens then.  A shoot-out ensues, with several patrons shot, one robber killed, and one police officer wounded.  The other robbers escape.

Six years later, Mr. Tarango goes to trial as one of the robbers. As you might imagine, police interest in the trial is extraordinarily high, and numerous police officers attend.

During jury deliberations, the jury sends a note saying it's deadlocked 11-1 in favor of a conviction.  One of the jurors, Juror No. 2, is the lone holdout.  The judge instructs the jury to continue deliberating.

The next day, when Juror No. 2 gets in his car to drive to the courthouse, and pulls on to I-15, he says he starts to be tailed by a Las Vegas police officer in a marked black-and-white cruiser.  Juror No. 2 says he checked to make sure he wasn't speeding, but the police cruiser kept right on his tail, "close enough I couldn't see his front wheels or bumper."

So Juror No. 2 gets in the far right lane, but the police cruiser stays right behind him.  This goes on for like seven and a half miles, the cruiser right on his tail, not pulling him over, but also staying so close that no one else can get between them.  Juror No. 2 pulls off the freeway, but the cruiser still follows him.  Tight.

Juror No. 2 finally reaches the juror parking lot, and pulls in. Only then does the cruiser let him go.

Juror No. 2 is freaked out.  He says he felt intimidated, and for that reason, later that day, changes his vote and votes to convict.

The Nevada Supreme Court says this isn't a problem.  It says that an officer conspicuously tailing the lone holdout in a police-involved shooting doesn't count as a "communication" so there's no relief.

Everyone on today's Ninth Circuit panel disagrees with that.  Rightly so.

But there's still a split in the panel.  Judge Murguia, joined by Judge Fisher, says that the last reasoned state court decision in this habeas case assumed arguendo that Juror No. 2 was credible, so there needs to be an evidentiary hearing about prejudice and other fact-finding.  Whereas Judge Rawlinson dissents, saying that in her view, the relevant state court didn't think that Juror No. 2 was deliberately followed by the police on the basis of his holdout status.  So she'd just go ahead and deny habeas relief.

The majority finds it troubling that an officer would just-so-happen to tailgate someone who, coincidentally, was the holdout juror in a police-involved shooting trial.  For over seven miles.  Right up to the juror parking lot.  For no reason, and without pulling him over.  Whereas Judge Rawlinson says that everyone knows that the I-5 is the main highway in Las Vegas, and is on the way the police headquarters, so it's not surprising that an officer during rush hour traffic might innocently tailgate a guy for miles.

Different views, to be sure.

U.S. v. Lemus (9th Cir. - March 2, 2016)

You say you want to buy two ounces of methamphetamine.  I say "Okay," but point out that this will be a hassle, since I'm a big-time player, and generally only deal in pounds.

We arrange to meet for the two ounces, but at that meeting, I tell you it's a no-go, since it'll be too big of a hassle for me to rip up my pound packages of methamphetamine just to sell you two ounces, but I reiterate that I'll sell you a pound, and offer to give you a sample.  I also say I have "pictures" of the pound that I'm happy to show you.

You say, smartly, that there'd be no proof that the sample would be representative of the rest of the package, so don't feel like seeing a (meaningless sample).  And as for the "picture" of the pound you want to sell me, come on.  That could be anything.  From anywhere.  And, in any event, I don't want a pound.

So we part ways.

Notice that you've never actually seen any drugs from me.  I've talked a big game, to be sure.  I've said I could get you a pound.  Which means I've said I have at least a pound.  Hell, I might have said I have a ton.  Or fifty tons.  Or a million.  You never saw anything.

Surely I can be convicted of lots of crimes.

But can I be convicted of possession?  Or, in particular, possession with intent to distribute over 50 grams?

The Ninth Circuit says yes to the first question, but no to the second.

Weird.

Maybe that's right.  What do I know?

But as to the former, I mean, it seems eminently plausible to me that the dude has utterly nothing.  I never saw any drugs.  Including but not limited to the drugs we're now saying -- beyond a reasonable doubt -- that they guy purportedly "possessed".  And I have a sneaking suspicion that the guy may not have had any drugs to begin with.  Maybe he was just trying to rip me off.  Which is why he wanted me to agree to buy at least a pound.  Sure, maybe he in fact had a pound.  But do I know that for sure?

The Ninth Circuit says so.  Based solely on the guy's word, essentially.  Since there's no actual drugs anywhere that we can actually find.

But as for whether it's actually 50 grams, the Ninth Circuit says, that'd be total speculation.  Because we don't know for sure the purity of those purported drugs.

I'm not exactly sure why what's true for purity isn't also true for their mere existence.  Or vice-versa.  But the Ninth Circuit says we can be sufficiently sure (beyond a reasonable doubt) of the one but not the other.

Okay.  That's the law, apparently.  At least after today.

But it still seems weird.

There are, I think, some circumstances when I'd be extraordinarily confident that you actually had an item you said you had based merely on your word and the fact that you were trying to sell it to me.

But if I meet a guy in a bar and he says he has a pound of methamphetamine to sell to me, there's surely a chance he's actually got a pound.  But if you think it's beyond a reasonable doubt that he in fact has a pound, rather than is actually just trying to rip you off . . . well, I think you may need to hang around more criminals.

'Cause they ain't exactly the trustworthy type.

People v. Dobson (Cal. Ct. App. - March 1, 2016)

Hmmm.  I didn't think about this.

Prop. 47 was passed to ameliorate the harsh consequences of the three strikes law for nonviolent offenders.  There's been a ton of litigation about that as Prop. 47 works its way through the courts.  Tons.

That presents problems of its own.  But those problems, while tough, are relatively straightforward.

What I didn't think about was how Prop. 47 might -- or might not -- affect a different class of offenders.

The criminally insane.

Let's say you're a guy who was charged with burglary, and you had a prior strike or two.  If you were convicted, and your sentence was enhanced, you're eligible (in lots of circumstances) under Prop. 47 to relief.  You may well get your sentence reduced.

But let's say that, instead of pleading guilty, or losing at trial straight up, you were found not guilty by reason of insanity.  In that case, you don't go to prison.  But you do to go a mental hospital.  For how long?  Well, the trial court says that the amount of time you spend there (absent other proceedings) is how long your sentence would have been if you weren't insane.  So if, for example, your three strikes sentence would have been 25 years, your maximum amount of time in the hospital is also 25 years.

But then, after Prop. 47 passes, the dude who was actually convicted of the crime get Prop. 47 relief, and gets his sentence reduced.  But you -- someone who "beat the rap" and got an NGI verdict -- are not eligible for relief.  You stay in the hospital for your maximum "three strikes" term.

Petitioner here says that's not cool.  But the Court of Appeal disagrees.

Justice Poochigian's opinion seems right on the merits.  There's a rational basis for this differential treatment.  Which, it bears mention, doesn't necessarily mean that the distinction is rational.  Only that it satisfies the rational basis test.  Someone non-nutty might well have wanted to grant relief only to "ordinary" criminals, not criminals found not guilty by reason of insanity.  So petition dismissed.

We might have wanted to put more thought into this when we passed Prop. 47.  Maybe we'd have done the same thing in any event.

But I readily admit this wasn't something I thought about at the time.  Or since.

Until I read this opinion, anyway.

Stuard v. Stuard (Cal. Ct. App. - March 1, 2016)

When the original opinion came out in January, I said that in an appropriate case, I thought it would make sense to think deeply whether taking a child away from admittedly fit parents and granting the child's grandparents twenty percent visitation -- a weekday overnight visit, one overnight weekend a month, and a seven-day vacation each summer -- might violate the parents' rights.

Today, the Court of Appeal amends its opinion to make clear that, in the present case, the appellant "provided no constitutional analysis of the facts upon which he now rests his as-applied challenge -- namely, the financial and practical day-to-day effects of the visitation order so disrupt his and Riley‟s life that the visitation order violates substantive due process."  The Court of Appeal essentially thinks the issue was waived.

Fair enough.

But let's be careful in the future.  If there really are trial courts who are giving out twenty percent visitation orders to grandparents over the objection of the child's fit parents, that's a big deal, IMHO.

Maybe this is a one off.  Maybe it's not.  Time will tell.

City of Corona v. AMG Outdoor Advertising, Inc. (Cal. Ct. App. - Jan. 26, 2016)

The City of Corona has banned all new billboards, but grandfathered old billboards.  AMG owns and operates some billboards, and wants to put up a new one.  One of its employees goes to the City planning department for an application for a permit to put up a new billboard.  But the City planning official tells her that she can't give her an application because no new billboards are allowed.  The law's crystal clear.

Weeks later, AMG simply puts up a billboard.  No permit.  No application.  Nothing.

The City files suit.  AMG makes meritless defenses and loses.  Loses in the Court of Appeal as well.

Rightly so.

I'd have thought that the City of Corona might actually want to criminally prosecute these guys.  This was a clear (and brazen) violation of the law.  I'd have also thought that the Court of Appeal might have wanted to sanction 'em as well.

Apparently not.  AMG just loses.

One less billboard in Corona.  (Which has plenty, as I can personally attest, since I was there on Sunday.)

Taylor v. Beard (9th Cir. - Jan. 21, 2016)

That's a crush.

In 2014, a Ninth Circuit panel issues an opinion that grants habeas relief.  Judge Schroeder writes the majority opinion, which is joined by a district court judge sitting by designation.  Judge Clifton dissents.

Fast forward to 2016.  The en banc court reconsiders the case.  Judge Schroeder, who's senior, is not on the en banc panel.  Neither, obviously, is the district court judge.  Judge Clifton, by contrast, gets selected for the en banc panel.  Alongside ten of his colleagues.

The opinion of the en banc court is now written by . . . Judge Clifton.

Joined by every single other judge on the en banc panel.

Whomp!

Reading Int'l v. The Malulani Group (9th Cir. - Feb. 25, 2016)

How often do you see the Ninth Circuit strike a reply brief?  Not often, I'd imagine.  But then again, how often do you see the Ninth Circuit disqualify an attorney on appeal?

Both happen here.

For good reason, though.  There is, in fact, a conflict of interest.  Albeit an imputed one.  When a main guy working on X changes firms, the new firm can be disqualified from working on an appeal that's substantially related to X.  Even if it screens the new partner.  (At least under Hawaii law.)

It's true that screening generally works in Hawaii.  But not if the disqualified lawyer actually acquired confidential information relating to the representation.  Which he did here.

Plus, this is no tiny guy.  He's a major player.  Both in the litigation and in the new firm.

So the party here has to hire a new lawyer.  As well as have that new lawyer sign off on the reply brief prepared by the old firm.

Which I bet will take about 20 second.  (Though the bill will be for 20 hours.)

People v. Garcia (Cal. Supreme Ct. - Feb. 25, 2016)

I was critical of the Court of Appeal's opinion when it came out a couple of years ago.  Today, the California Supreme Court reveals that it wasn't too fond of it either.  Reversed.

But there's an interesting debate between Justice Cuellar, who writes the majority opinion, and Justice Kruger (joined by Justice Lui), who concurs.

Everyone agrees that the guy here should have only be convicted of one burglary, rather than two.  I said that back in 2014.  Justice Cuellar says that.  So does Justice Kruger.  When someone enters one building intending to commit a felony -- Burglary One -- its not another felony, at least in this case, to then enter a particular room in that same building (alleged Burglary Two) to commit another felony.

One building, one felony.  Simple rule.

Justice Kruger would have that largely be the rule.  But remember:  She's concurring.

The majority says that's normally the rule.  Since a different rule would make little rational sense.  "Under the People‘s approach, a defendant who entered every room in a single-family home and stole items within, as well as an intruder who repeatedly entered and exited the same room within a store with the intent to commit a felony inside, could be charged with and convicted of multiple burglaries."

Yet the majority says that sometimes you could indeed be charged with multiple burglaries.  Whether that's okay would depend heavily on the facts:

"What we conclude is this: the simple fact that a defendant has committed two entries with felonious intent into a structure and a room within that structure does not permit multiple burglary convictions. Where a burglar enters a structure enumerated under section 459 with the requisite felonious intent, and then subsequently enters a room within that structure with such intent, the burglar may be charged with multiple burglaries only if the subsequently entered room provides a separate and objectively reasonable expectation of protection from intrusion relative to the larger structure. Such a separate expectation of privacy and safety may exist where there is proof that the internal space is owned, leased, occupied, or otherwise possessed by a distinct entity; or that the room or space is secured against the rest of the space within the structure, making the room similar in nature to the stand-alone structures enumerated in section 459."

I thought when I first read this rule that it was an incredibly messy one.  And it totally is.

But after reading the majority opinion, I at least understand a part of the impetus for the mess.  If, for example, you break into an apartment building, and enter three different apartments, I get that maybe that should be multiple burglaries.  Or if you break into one apartment, rented by two people, and the door to each occupant's bedroom is locked with a padlock, since it's not really "shared" space, I can see why some people would want that to be two (rather than one) burglaries.  The "expectation of privacy" caveat is similarly motivated, I think, albeit even messier.

That said, I am sympathetic with Justices Kruger and Liu, who say that the mess these caveats make may not be worth the effort.  Maybe a more bright-line rule would make more sense.

Regardless of whether Justice Cuellar or Kruger has the better of the argument, however, both of their positions are better than the Court of Appeal's holding.  Way.

So great result.

Burglary in California is still a total, complete mess.  But at least it's one percent less irrational and counterintuitive today than it was yesterday.

Nozzi v. HACLA (9th Cir. - Jan. 29, 2016)

When you're planning on filing an amicus brief, it's often better to make it short and to the point, rather than long and plodding.  Oh, yeah.  And it's pretty important to file it on time.

"The petition for leave to file a late, oversized brief of amicus curiae on behalf of the Housing and Development Law Institute is also DENIED."

You don't want that to happen to you.

Oregon Restaurant & Lodging Ass'n v. Perez (9th Cir. - Feb. 23, 2016)

The dispute is about statutory interpretation and Chevron deference.  Particularly as applied to circuit precedent.

Prompting a serious disagreement between Judges Pregerson and (Randy) Smith.

There's a prior Ninth Circuit opinion that says that a federal statute allows employers to do X.

But, after that decision, the Department of Labor issues a regulation that interprets that statute and says that employers cannot, in fact, do X -- that this practice indeed violates the statute.

Are employers now prohibited from doing X?

Judge Pregerson believes so.  He, along with Judge Owens, says that the prior case didn't involve Chevron deference -- it merely was a straightforward (nondeferential) interpretation of the statute -- and after applying deference, the DOL's interpretation is a reasonable one, so that distinguishes the present case from the one before.

Judge Smith disagrees.  He thinks that the prior case said that the statute was clear, and that if the law's clear, agency interpretations don't matter.  Judge Smith also has some strong words for his colleagues, and begins his dissent by saying:  "Colleagues, even if you don’t like circuit precedent, you must follow it. Afterwards, you call the case en banc. You cannot create your own contrary precedent."

Two competing visions.

P.S. - Not a good past ten days for Eugene Scalia, who argued the case for the Wynn Las Vegas.  First, his father suddenly dies.  Now, this.

Bennett v. Bank Melli (9th Cir. - Feb. 22, 2016)

I'm not sure I'm smart enough to figure this one out.

Judge Kozinski authors an opinion in August of 2015.  It's unanimous.  No biggie.

Fast forward to today.  There's now a revised opinion.  But it's no longer unanimous; now, the district judge sitting by designation files a concurrence.  And the majority opinion is by Judge Thomas.

Oh, yeah.  One more thing.  Judge Thomas wasn't on the original panel.  Judge Kozinski's now off the panel, and Judge Thomas was drawn to replace him.

What?!

One might perhaps easily explain the concurrence.  Maybe there was a change of heart after the losing party filed a petition for rehearing.  Maybe Judge Thomas edited the opinion in a way that the district judge didn't like.  Lots of things can happen.  Rare.  But, still, they happen.

Why Judge Kozinski left the panel is even harder to explain.  Presumably he recused himself.  But I don't see why offhand.  He didn't recuse himself initially.  What changed?  Moreover, it's not like the subject matter is something that Judge Kozinski would likely be personally interested in.  It involves unsatisfied claims against Iran.  Now, maybe Judge Kozinki has a personal interest in that -- one that arose all of the sudden.  But I doubt it.  Seems weird.

Not that it's a huge issue.  The case comes out the same way.  The victims here are going to get some fraction of their judgments against Iran.  I'm far from bummed about that.

But strange.  Very strange.

CIFAC v. Ross Valley Sanitary Dist. (Cal. Ct. App. - Feb. 18, 2016)

This makes sense.

I'm not talking about the opinion.  Though that makes sense as well.  I'm talking about the underlying factual regime.

Here's the basic deal:

Sewer pipes get old.  You probably know that already.  They need to be replaced.  But -- as you also likely already know -- we're terrible lately about infrastructure repairs.  Just terrible.

Even in Marin County.  The Ross Valley Sanitary District maintains around 200 miles of sewer pipes in that tony enclave.  Most of which are "neighborhood" lines less than ten inches in diameter.  The District knows that around 139 miles of those pipes (!) eventually need to be replaced because their old and crumbling.

Traditionally, the District repairs these things through "spot repairs" -- basically, digs 'em up when they have a big problem and replaces them.  But that's a pain.  Fortunately, recently, the District discovered a new way of potentially dealing with this problem.  "In 2010, the District began experimenting with this new technique, which allows it to replace sections of sewer line by digging two holes about 350 feet apart, and then using a hydraulic pump to pull a torpedo-like device through the old pipe, bursting the old pipe and leaving a new pipe in its wake. With pipebursting, the District can replace 350-foot sections of pipe in about three days and without trenching, rather than engaging in weeks of work-intensive spot repairs."

Sounds cool.  Love it.  Seems like that's what you should do.  Get on it.  Great idea.

The District thinks so as well.  So it wants to hire some new "pipebursting" employees whose job it would be to implement this new technology.

Finally.  Government at work.  Rational.  Expeditious.  Infrastructure repair.  Everything's awesome.

But when the District lets the public know that's its plan, someone objects.  The Construction Industry Force Account Council, Inc.  You can probably figure out who this trade association represents.  CIFAC says that the District can't do this because there's a statute that says that every project over $15,000 needs to be put out to a public bid.  And even though any particular pipebursting project with the new employees wouldn't be over $15,000, the total salary of these new employees -- and the value of all the projects combined -- would be.  So the District can't do it in-house.  It'll have to hire outside people.

So the trade industry sues.  The trial court agrees.  And the District gets enjoined from hiring its new crew.

My reaction to this set of facts was not positive.  I see no reason why the District can't efficiently employ a crew to do what it's always done -- albeit in a different way -- in house.  I know perfectly well why there's a trade association that's suing.  But I don't like it.  It exemplifies classic agency cost problems.

Fortunately, the Court of Appeal reverses.  It's okay for the District to do it this way.

Thank goodness.

I know that we often want competitive bidding and lower-cost solutions rather than entrenched government employees.  But, here, I think the equities are exactly in the opposite direction.  My sense -- which I freely admit is not especially informed in this area -- is that, in the present case, it's the outside entitles that are the entrenched ones.  Seeking to preserve their turf against a more efficient centralized competitor.

But they lose.  And I'm happy about that.

So pipeburst away, Marin County.  Go crazy.

It's okay.

People v. Goolsby (Cal. Ct. App. - Feb. 18, 2016)

The saga continues.  Or, perhaps, ends.

It starts (for our purposes) in 2013.  Then continues in 2014.  With a twist in 2015.

But then, in 2016, it goes back to where it started.  Mr. Goolsby gets off on a "technicality".

Albeit one that's enshrined in the Bill of Rights:  the Double Jeopardy Clause.

Sifuentes v. Brazelton (9th Cir. - Feb. 18, 2016)

The prosecutor in a first-degree murder case uses his peremptory challenges to strike nine African-American jurors, leaving only one African-American on the jury, which ultimately convicts.

The California Court of Appeal says there's no Batson violation, but the trial court disagrees and grants habeas relief.

The Ninth Circuit reverses.

The panel consists of Judge Ikuta -- who authors the opinion -- Judge O'Scannlain, and a senior district court judge sitting by designation.

P.S. - Amongst the other people he's not especially fond of, the prosecutor admits he's not especially keen on lawyers.  Or teachers, for that matter.  Saying:  "She was a school teacher in 1992 to 1995, indicates fairly liberal. She has a doctorate; she’s a lawyer. I don’t want a lawyer on my jury. I’ve never liked having lawyers on juries. They’re know-it-alls, they inject themselves into the case, they think they can do a better job."

Sarver v. Chartier (9th Cir. - Feb. 17, 2016)

This opinion will affect your life.

Not in a big way.  At all.  But it'll affect the types of movies you see.

The Ninth Circuit essentially holds -- for the first time ever -- that the First Amendment trumps California's protection of the right of publicity for movies made about a matter of public interest.

As a result, film makers will now be able to make movies about public figures without buying the rights to that movie from that person (and, presumably, getting her approval of the portrayal).

This particular case involved The Hurt Locker.  The Ninth Circuit assumed (probably correctly) that this movie was indeed based on the life of IED specialist Sgt. Jeffrey Sarver in Iraq.  Normally that would mean that he had a right to publicity (at least in California).  But the Ninth Circuit held that the First Amendment precluded liability for telling the story.  Even though the movie was all about a particular person, the underlying "issues" -- the war in Iraq, the toll of IEDs, etc. -- were matters of public interest.  So the film makers could tell this story through the life of Sgt. Sarver.

This principle extends broadly to a plethora of other movies.  I expect that we'll see its contours played out in litigation during the next decade.  But the opinion is broad enough to cover tons of movies.  Probably books and other media as well.  Which now need not pay characters for their life stories in lots of contexts.

Huge.

In Hollywood, anyway.  As well as for anyone who consumes the products thereof.

Which is pretty much everyone.

Younessi v. Woolf (Cal. Ct. App. - Feb. 16, 2016)

As the legal world continues to buzz about potential nominees to replace Justice Scalia, the hum-drum business of actually deciding appeals continues apace.  Today, fortunately, has a theme.

It's Bad Attorney Day.

From the state side, we have this opinion.  Counsel for plaintiff failed to respond to discovery, failed to oppose a demurrer, and failed to timely amend the complaint, resulting in the dismissal of his lawsuit.

Oops.

Here's what the attorney says about all this:  "According to [George] Wass, in March he agreed to represent plaintiffs in this action. Wass admitted that he received the substitution of attorney form signed by Drescher on April 1, but claimed he forgot to sign it because he was preparing for trial. Wass denied knowing about the pending demurrers and motions to strike, asserting, 'Drescher did not mention [them],' and his office 'apparently . . . missed' the entries for these pleadings when reviewing the register of actions. But Wass did acknowledge learning of the pending discovery motions. In mid-April, he attempted to discuss them with Woolf's attorney. Opposing counsel told Wass that he could not do so 'until he received the Substitution of Attorney.' According to Wass, he again failed to file the substitution of attorney because he 'got distracted.' Wass claimed he finally learned about the demurrers and the court's ruling which allowed leave to amend in mid-May, and 'just assumed we got 30 days' to file an amended complaint."

Not really how you'd like to permanently appear in the pages of the California Appellate Reports, I'd imagine.

Still, plaintiffs get relief from the Court of Appeal.  Though grudgingly.  "[W]e reluctantly affirm the trial court's order vacating the dismissal."

So that's something.

Meanwhile, on the federal side, we have this opinion.  It's a $2.7 million sanctions award as the "direct result of repeated, deliberate decisions by [attorneys] Hancock, Musnuff, and Goodyear to delay the production of relevant information, make misleading and false in-court statements, and conceal relevant documents."  Judge Watford dissents, and requests rehearing en banc.  But today, that request is voted down.  End of story.

But don't feel too bad for Judge Watford.  He'll just have to settle for the speculation that he may perhaps be the next nominee to the Supreme Court.

Sort of makes up for losing a particular en banc vote, I imagine.

People v. McCarthy (Cal. Ct. App. - Feb. 11, 2016)

A statute says that you can impose a particular form of restitution "for felony violations of" Statute X.

Defendant is convicted of violating Statute Y.  Some, but not all, activities that would violate Statute Y would also violate Statute X.  Including what Defendant did.

But Defendant was not convicted of violating X.  He was only convicted of violating Y.  A different statute.

Does the restitution order permit the trial court to impose the particular form of restitution at issue on the Defendant convicted of violating Statute Y pursuant to a law that says that such restitution may be imposed "for felony violations" of Statute X?

The Court of Appeal says "Yes."

In Re Donovan L. (Cal. Ct. App. - Feb. 11, 2016)

"Shannon was married to Donovan at the time of DJ's conception in 2010 and birth in 2011. In 2010, Shannon had an affair with David and informed him she was pregnant. David did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw Shannon and one-year-old DJ at a shopping center parking lot in July 2012. Seeing a resemblance, David took a paternity test on his own initiative and determined he was DJ's biological father. He told friends and family he was DJ's father and asked Shannon for visits with DJ. She facilitated a few visits between DJ and David, unbeknownst to Donovan.

Shannon and DJ stayed at David's apartment for two weeks in August 2012, when she and Donovan were having marital problems. During that time, Shannon called the police because David locked her out after they fought over child custody. When officers arrived, they found David and DJ 'passed out' on the bed with approximately 50 marijuana plants growing in the apartment. Following this incident, the Agency filed the 2012 dependency petition under Welfare and Institutions Code, section 300, subdivision (b)."

 It's always exciting in San Diego.

Catalina Island Yacht Club v. Superior Court (Cal. Ct. App. - Dec. 4, 2015)

Nothing from the Ninth Circuit or California Court of Appeal so far today.

So let's go back a tiny bit and give a cheer for Justice Aronson.

The first paragraph of this opinion makes crystal clear both what the case is about as well as what the relevant rule is:

"May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections? No."

But that's not all.  Justice Aronson not only tells us what the court can't do, but also tells us what it permissibly can.  Next paragraph:

"When confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived based on deficiencies in the privilege log because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily-authorized methods for waiving the attorney-client privilege. The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions if the responding party persists in its failure to provide the court with the information necessary to rule on the objections’ merits, but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand."

That's exactly right.  It's also an awesome summary of the opinion that follows.  Which explains in exhaustive detail how and why the trial court erred.

And the rest of the opinion is equally clear and concise as well.  Page 9, for example:

"Accordingly, if a party responding to an inspection demand timely serves a response asserting an objection based on the attorney-client privilege or work product doctrine, the trial court lacks authority to order the objection waived even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a privilege log that fails either to adequately identify the documents to which the objection purportedly applies or provide sufficient factual information for the propounding party to evaluate the objection. . . .

The propounding party’s remedy when it deems “[a]n objection in the response is without merit or too general” is to “move for an order compelling further response.” [Cite] If the response and any privilege log provide sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure, the court may rule on the merits of the objection by either sustaining it or overruling it as to each document. [Cite]

If the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim. [Cite] In ordering a further response, the court also may impose monetary sanctions on the responding party if that party lacked substantial justification for providing its deficient response or privilege log. [Cite]

If the responding party thereafter fails to adequately comply with the court’s order and provide the information necessary for the court to rule on the privilege objections, the propounding party may bring another motion seeking a further response or a motion for sanctions. At that stage, the sanctions available include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions. [Cite]  But the court may not impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to an inspection demand or an adequate privilege log."

I can't imagine an opinion making the law any more clear.  On a topic that many, many litigators care (or at least should care) about, and confront daily.

Bravo.

Daire v. Lattimore (9th Cir. - Feb. 9, 2016)

Some en banc opinions are hard.  Some en banc opinions are easy.

Today's opinion is an example of the latter.

The panel felt itself bound by circuit precedent.  The en banc court, by contrast, was under no such constraint.  So, based on intervening precedent by the Supreme Court, it overruled that prior circuit authority.

The en banc court was unanimous.  The opinion was per curiam.  The en banc court didn't even need oral argument.  And getting the opinion out took less than a month.

Everything else goes back to the original panel.

Easy-peasy.

In Re Village of Lakeridge (9th Cir. - Feb. 8, 2016)

I think Judge Clifton is right.

It's not that Judge Randy Smith doesn't have a point.  It's a bankruptcy case, and the central issue is a factual one.  So we give lots of deference to the district court.  Which is in substantial part why Judge Smith writes the majority opinion and affirms.  Even though one might get a sense from reading that opinion that Judge Smith isn't so confident that the district court's factual call was necessarily the right one on the merits.

So Judge Smith starts out with a huge lead.  Standard of review.

But Judge Clifton, I think, gets it right.  Yeah, there's a lot of deference there.  But it's not infinite.

I, too, have a definite and firm conviction -- like Judge Clifton -- that the district court's factual finding was wrong.  And the more I think about it, the more confident I am in that regard.

To get a glimpse into the machinations of the underlying transaction, three paragraphs from Judge Clifton's dissent will suffice:

T"he facts make it clear that this transaction was negotiated at less than arm’s length. Rabkin paid $5,000 to MBP (the sole member of the debtor, Lakeridge), for an unsecured claim against Lakeridge nominally worth $2.76 million. MBP did not offer the interest to anyone else. The purchase was not solicited by Rabkin. It was proposed to Rabkin by Kathie Bartlett, a member of the MBP board. There was no evidence of any negotiation over price — Rabkin didn’t offer less, and MBP didn’t ask for more. Rabkin knew little if anything about Lakeridge (or, for that matter, MBP) before he bought the claim, nor did he conduct any investigation to ascertain the current value of that unsecured claim. Even after he purchased the claim, he did not bother to find out more about what it might be worth. Prior to his deposition Rabkin did not even know what the proposed plan of reorganization would pay him for the claim. After he learned that the payment under the plan would be $30,000, he was offered as much as $60,000 for his interest, but he declined that offer.

The motives of MBP and Bartlett are clear and not denied. MBP is the sole member of Lakeridge. The Lakeridge reorganization plan cannot be approved unless there is a class of creditors willing to vote to approve it. Without the sale of this claim to Rabkin and his anticipated vote to approve the plan, that plan is dead in the water, Lakeridge will be liquidated, and there will be no hope for MBP to obtain anything for either the unsecured claim or, more importantly, its ownership of Lakeridge. It may have wanted to recover something from its unsecured claim, but it did not look for the best possible price because its Lakeridge ownership was far more important. MBP was primarily motivated to place the unsecured claim in the hands of a friendly creditor who could be counted on to vote in favor of the reorganization plan, opening the door to the possibility of obtaining approval of the proposed plan of reorganization.

Rabkin’s motivation is a bit murkier, but it is clear that the transaction cannot be understood as a primarily economic proposition on his part. There was no evidence that he had a habit of making blind bets, say by helping out Nigerian princes or buying the Brooklyn Bridge. There is an alternative explanation that makes a lot more sense. As the majority opinion acknowledges, at 6, Rabkin had a “close business and personal relationship” with Bartlett, the person who proposed this transaction to him. I don’t have to know the precise details of the relationship between Rabkin and Bartlett to conclude that it offers the only logical explanation for Rabkin’s actions here. He did a favor for a friend, and if it made some money for himself, so much the better."

Sounds right to me.  X owns a claim benefits if that claim is voted it in his favor, but X can't vote it himself since he's a bankruptcy insider.  So X sells the claim to a friend for $5,000 -- a friend who knows virtually nothing about the deal, votes it in X's favor, and won't sell the claim for ten times what he paid for it (and double what he could possibly hope to achieve in the bankruptcy).  Yes, the lower court said that transaction seemed fine.  But it's not.  It was a sham designed to make the vote happen in X's favor.  I'm convinced of that.  Sufficiently convinced to reverse.  Even on a factual finding.

Judge Smith says that a contrary finding would be a "logical" interpretation of the facts.  That may well be true.  It might be a "logical" conclusion that the investor was just taking a flyer on a $5,000 investment hoping to make money.  That's nothing internally inconsistent -- i.e., illogical -- with such a conclusion.

It's just not a persuasive view -- however logical -- of the facts.  It's way less likely, in my view, than the alternative explanation.  Indeed, on the facts of this case, such an interpretation of the facts may border on the affirmatively implausible.

So I think Judge Clifton has the better of the argument here.

Stuard v. Stuard (Cal. Ct. App. - Jan. 5, 2016)

I'm looking at the caption of the case.  "Stuard v. Stuard".  Divorce case, I assume.

Except it's Jeffrey Stuard v. Matthew Stuard.  No biggie.  Gay divorce case.

Nope.

Not a family law case at all, then.  Brothers fighting over a will.  Something like that.

Nope.  It's a family law case.  Child custody, even.

It's a case where the grandparents are seeking visitation of their grandchild over the objection of the parents of the child.

Which you see sometimes.

But this case is different.  Because the usual case involves unfit parents.  Whereas here, everyone agrees that the parents are totally fit.  Raising their kid just fine.  Simply don't want the paternal grandparents in the picture.

Okay, then.

My first thought is that I'm fine with the concept.  Grandparents have a connection.  We're talking about the best interests of the child.

Then I read the facts of the case.  The first eight pages or so.  And wow.

I know the Court of Appeal's opinion (rightly) recites the facts in the light most favorable to the party that prevailed below -- in this case, the grandparents.  But as I read the facts, I totally get why the trial court wants the grandparents to be around.  They were totally involved in raising this little kid.  They lived with the parents and were, essentially, the primary caregiver for the kid.  And the dispute about visitation basically arose when the father -- allegedly -- started on ADHD drugs, with a resulting change in personality, which eventually led to the grandparents kicking the father out of the house.  An event that arose the father's ire and (allegedly) led to his decision to tell the grandparents that they'd never see their "golden granddaughter" again.

Plus, the child wants to see her grandparents, and wonders why she can't.

Geeze.  That makes me even more desirous of letting the grandparents visit.  I mean, seriously.  Let the grandparents and grandchild have a relationship, for goodness sake.

So as I'm reading the opinion, I'm on board for the trial court granting visitation.  And the Court of Appeal tells me early on that they're affirming, so I'm cool with that.

But then I get to the actual remedy section.  I was thinking that the grandparents would get like two four-hour visits every month or so.  But here's what they actually get:

"Jeff and Cindy [the grandparents] may have Riley [the grandchild] once a week during a weekday overnight visit and one overnight weekend visit per month. Jeff and Cindy may take Riley on a seven-day vacation each summer and have an overnight visit with her around Thanksgiving and Christmas."

Whoa!!  Overnight visits?!  And take someone else's child on a seven-day vacation every year?!

Nelly.

I'm not entirely sure why, but for me, that ups the ante here.  Substantially.  To reiterate:  These are not unfit parents.  At all.  The parents -- both of them -- simply have decided that they don't want the grandparents in their lives.  Now, I'm okay with saying that's not an absolute, and that, on the state of the evidence here, it'd be in the best interests of the kid -- and permissible -- to let the grandparents see and have reasonable visitation with her.

But taking a kid out of a fit home of her parents and letting someone else have them for overnight visits?  And taking the kid away for a full week merely because we think that that'll be "good for them"?

Wow.  I don't know.  Emotionally, that just seems different to me.  I imagine the state taking away one of my own children for a full week because they allegedly know better than I do what's good for them and say to myself:  "Hell no."  A full week?!  Wow.

Can I give a rational explanation why visitation for four hours on an afternoon seems different to me than overnight visits and even more visit from a full week vacation?  No.  Not really.  I totally get the argument that this is merely a quantitative, rather than qualitative, difference.  And concede that I can't readily define the line between how much it's "okay" to take a kid away from fit parents and when it suddenly becomes not okay.

But there's nonetheless still a huge part of me that says there's a line.  I may not be able to draw a definite line between a dude with a few straggly hairs and a guy with a full beard, either.  But there's nonetheless a difference.  One's got a few hairs, and the other has a beard.  Even though I can't draw a definite line their either.

The Court of Appeal here doesn't seem to have been asked to resolve when taking away a child from his fit parents is "too much"; instead, the parents' argument was a more categorical one, and focused on the claim that since they were fit, their kid couldn't have been taken away from them at all.  As I said before, with respect to that issue, I'm somewhat sympathetic to the Court of Appeal's holding.

But there's nonetheless a line here.  At least emotionally.  At least for me.  And maybe as a matter of (admittedly imprecise) law.

And I wonder if that line wasn't, in fact, crossed here.

So in an appropriate case, I wonder whether the Court of Appeal might consider this issue.  As well as think deeply about it.

'Cause I'm not down with the state taking away my kid for a week-long vacation for his own good.

Even if it's objectively "right".

Smith v. Schiro (9th Cir. - Feb. 4, 2016)

An test that Robert Smith took when he was 15 years old (in 1964) indicated that he had an I.Q. of 62.  One that he took later that year indicated an I.Q. of 71.

Smith committed a murder in 1980.

Tests taken in 2005 and 2007 indicated in I.Q. of 89, 91, and 93.

What Mr. Smith's I.Q. was at the time of the murder is the difference between life and death.

Judge Reinhardt authors the majority opinion.  Judge Callahan dissents.  So you can guess where the Ninth Circuit comes out today.

You thought the bar exam was stressful.  Imagine a test that decides whether you live or die.

People v. Valenzuela (Cal. Ct. App. - Feb. 3, 2016)

Defendant carjacks someone, pushing the victim down while her six-year old child stood by crying.  Defendant then speeds off in the vehicle, almost running over a bystander in the process.

When the police start a chase, defendant then tries them by crossing into oncoming traffic to pass cars, skidding into a field, driving back onto a residential streets at up to 65 miles per hour, and running through several stop signs and through an intersection with crossing guards as children walking to school scrambled to get out of her way.  Defendant's ultimately caught when the car crashes head on into a telephone pole and defendant is tackled by police.

Oh, yeah.  Defendant has prior convictions for car theft, receiving stolen property, and -- yes -- reckless evasion.

She also has methamphetamine in her pocket when she's arrested.

Defendant receives a total sentence of less than seven years in prison.

I'd have given her a fair piece more.

I've never been a fan of the sharp distinction between attempt versus completed crimes, or crimes that involve reckless disregard and those in which it just-so-happens that there's injury.  Ms. Valenzuela here evaded police, drove 65 miles per hour on residential streets running through stop signs, and had kids and crossing guards scrambling out of her way to avoid being hit.  Had she hit one of 'em, she'd be looking at something like 25 to life.  As opposed to less than seven.

All based on the fortuity on whether or not a particular child happened to move six inches left or right at the time.

It seems to me that we should care a lot about deterrence.  Especially in these types of cases, in which the defendant is making a decision about whether the benefits of trying to evade the police (escape) are worth the downsides of doing so (enhanced penalties).  To deter, it shouldn't matter much whether a person (or other vehicle) happens to get hit.  Every single time, you create the risk.  So the penalty -- the thing you have to consider when you're deciding whether to flee -- should be sufficiently large to deter the creation of that risk.  Regardless of whether, in retrospect, someone actually ended up getting hit.

Ditto for culpability.  You're equally culpable for evading police regardless of whether the kid that you (almost) run over happens to see you sufficiently early and is fast enough to get out of the way.

The only thing that might justify the sharp distinction between punishment for those who create a risk and those whose risk happens to end up in injury is retribution.  And that's a pretty weak basis, in my view, upon which to foist criminal liability.  Especially given the far more compelling competing interest in deterrence.

So Ms. Valenzuela gets off easy, in my view.  Way easy.

Villavicencio-Rojas v. Lynch (9th Cir. - Feb. 2, 2016)

Judge Berzon concurs and says:  "I note that, as a practical matter, my understanding of the statute and the majority’s will not diverge very often. The occasions on which a defendant commits a controlled substance offense and then is arrested for another such offense before the judicial disposition on the first one will not be frequent. But they will occur occasionally."

Given the nature of drug abuse, I'm confident that the number of times this will transpire will not fall anywhere near the "rare" category.  But the word "occasionally" covers an awful lot of ground.  So I cannot disagree with what Judge Berzon says.

Unilab Corp. v. Angeles-IPA (Cal. Ct. App. - Feb. 1, 2016)

I agree with the plaintiff that it should be paid.  Doctors put specimens in those ubiquitous "Unilab" boxes and asked Unilab to give 'em results.  Unilab did so.  Unilab should be paid.  Whether that's a contract, or implied contract, or quantum meruit, or whatever, Unilab should be paid.

But I also agree with the Court of Appeal.  Unilab shouldn't be paid by the IPA -- the independent physician's association.  For the reasons expressed in Justice Epstein's opinion.

But I'd also reiterate that Unilab should be paid.  If Unilab sued the doctors themselves, in my view, I would likely find for Unilab.  The doctors erroneously placed the specimens in the Unilab box.  And Unilab had not reason to know this was by accident.  To the tune of six figures in laboratory results.

That's a pretty good lawsuit, in my opinion.

But you've got to sue the actual doctors who committed the error, not the IPA.

People v. Safety Nt'l Cas. Corp. (Cal. Supreme Ct. - Feb. 1, 2016)

I freely admit that I don't know as much about bail proceedings as perhaps I should.  But I nonetheless thought that every single word of Justice Chin's opinion was spot on.

Every.  Single.  Word.

So too, apparently, did the rest of the California Supreme Court.  The opinion was unanimous.

Defendant had to be at his pretrial hearing.  He knew about it.  He didn't show up.  The entity that bailed him out accordingly lost the bail.  (At least after they subsequently couldn't find him.)

Sounds right to me.