People v. Williams (Cal. Ct. App. - Sept. 8, 2017)

I'm usually not a fan of the California Supreme Court reaching out to depublish an opinion by the Court of Appeal.

But here's a good candidate for precisely that.

There's a loose horse out in a rural area, so police officers (understandably) investigate.  The horse seems trying to get back into a particular property, and the police follow it around, block it off, call for backup, try to contact anyone at the house (by knocking on doors, windows, calling the property, etc.).  Eventually the authorities succeed in getting the horse into a horse trailer that they've brought to impound the horse.

Cool.  Great work.  I have absolutely no problem with any of that.

While they're doing all of this, they hear some dogs barking, see some dogs that appear to be fairly poorly kept up (when they peek inside the windows), and generally just get a sense that there might be something going on with respect to the dogs.  Now, truthfully, they already know that already, as they'd previously been out to this same house on a couple of prior occasions, and knew that there were lots of dogs.  But the owner showed 'em the proper permits etc., so everything passed.

But now the authorities feel like they've got free reign of the place.  The owner's not home.  They've already done everything that conservative Supreme Court precedent allows 'em to do -- enter a home property without consent, repeatedly knock on every door, peek inside all the windows, etc.  Stuff that'd freak you out if you saw a stranger doing to your home, but that nonetheless the judiciary says is okay, since it's the "curtilage" of your home and hence involves a "sidewalk, pathway, common entrance or similar passageway [that] offers an implied permission to the public to enter which necessarily negates any reasonable expectancy of privacy in regard to observations made there."

Okay.

But then the police cross the line, in my view.  Both literally and metaphorically.  There's a fenced in back yard.  Something that clearly doesn't offer "implied permission" for anyone to enter.  The police nonetheless enter the back yard, at which point they see some dogs with scars and a missing lip and some additional evidence that makes 'em think that there might be dog fighting.

And then, two weeks later, based on these observations, they go back to the property and take some more (entirely permissible) pictures.  Then they wait another three weeks, and finally get a search warrant, which they obtain by reciting all the evidence described above.  And during the search, they find evidence of dog fighting and charge the defendant.

The critical issue is whether the search was permissible; in particular, the officers crossing into the back yard.

The Court of Appeal says that was okay -- proper -- because of "exigent circumstances".  Based on the presence of several barking dogs and one letting out some whines somewhere.  Justice Grimes relies on an "exigent circumstances" case that said that it was okay for a police officer to hop over a fence when he saw a gun lying on the ground and says it's the same thing here:  gun, barking and/or whining dogs, no difference.  Exigent circumstances.

But the two are radically distinct.  Particularly here.

First off, of course there are barking dogs.  Come to pretty much any house with a dog -- or more of 'em -- and knock on doors and windows and peer in and see what happens.  They'll bark because (1) that's what they do, and (2) that's why (in part) we have 'em.  Because we want them to bark their heads off when random dudes go traipsing around our front hard for an hour knocking and peeking into every window.

So that's hardly exigent circumstances.  That's hardly reason to fear that the dogs are in mortal danger, which is the "exigent circumstance" that the Court of Appeal finds.

Now, there's also a dog that whines a little, and some dogs that look a little thin and the like.  Now, mind you, that exact same stuff -- and worse -- was there last time the authorities were called to the place, and the authorities did absolutely nothing.  So I'm not really sure how "exigent" all this stuff is.  But even ignoring past history, it'd be one thing if there really was a dog that was about to die or who was yelping like it was in mortal danger or whatever.  But that's not what was happening, and was definitely not what the police perceived.  The dogs were just doing what we'd totally expect them to do with randoms on their lawn who weren't leaving.  And, yeah, there might perhaps have been some systemic problems with the alleged weight of the dogs or a smell of feces or whatever.

So you know what you do in that situation?  Get a warrant.  It takes, like, hours.  Maybe a day, tops. There's absolutely no reason to believe that one of these dogs is in such distress that it's going to die or the like in the time it takes to get a warrant.  And it's nowwhere near as dangerous as a gun lying unsupervised on the ground.  Get a warrant, get a warrant, get a warrant.  Because we want a neutral magistrate to decide -- except in the most extreme cases -- whether circumstances truly warrant (pun intended) making people no longer "secure in their persons, houses, papers and effects."  Not merely the unilateral whim of the police.

But the Court of Appeal thinks that the dog situation is so extreme -- so exigent -- that it warrants the police exceeding their normal authority and invading the back yard.  And let's be crystal clear what's at stake in his holding.  If exigent circumstances -- the alleged dying dogs or whatever -- permit the police to invade the back yard, those same exigent circumstances permit them to bust down the door and enter the house.  Because both places are the "home" under the Fourth Amendment.  The fact that the police here only elected to invade the fenced back yard, rather than the home itself, doesn't make the Court of Appeal's holding any less dangerous, because what's good for the former is good for the latter as well.  If barking, smelly dogs are exigent circumstances that negate the need for a warrant, that's a view that's not limited to merely inspecting the back yard; you get to go full out at that point.

So it's an opinion that really does matter.

Oh, and lest you think that the "dangers" of the barking dogs were really all that substantial -- that I'm understating their perceived seriousness -- let me just remind you of just how serious the police who witnessed them first-hand thought they were.  How "exigent" and critical the circumstances were.  Those facts were so serious that after the police invaded the back yard and did all their stuff, they promptly left and did absolutely nothing.  Those "critically at risk" dogs were just left to their own devices.  For weeks.  Until the police did another drive-by and took some more pictures.  And then let three more weeks pass until seeking and obtaining a warrant.

When that's how serious the police perceive the matter to be in real time -- i.e., not at all -- I think it's super difficult to argue that on the facts of this case, the barking dogs were really so exigent that they authorized entirely dispensing with the requirement of a warrant.  Because every fact you'll mention to identify how allegedly "serious" the circumstances might have been were not, in fact, perceived to be at all that serious -- that requiring of immediate intervention -- by the people who were actually there and perceived them.

Anyway, that's my take.

And, in the end, the Court of Appeal concludes its opinion by saying that the seized evidence was permissibly introduced in any event because even if you excise the impermissible stuff from the affidavit (i.e, the back yard stuff), the remaining (proper) evidence was more than sufficient to justify the warrant's issuance.

Which totally negates the need for the rest of the opinion.  The bad -- and dangerous -- part about why exigent circumstances allegedly permit the police to invade your home whenever analogous circumstances like this exist.

Which in turn is why, even though I'm not normally a fan of depublication, I think this is a perfect candidate.

U.S. v. Del Mundo Faagai (9th Cir. - Sept. 7, 2017)

It's a natural human tendency to become more persuaded over time about the validity of your own articulated beliefs.  Not everyone does it.  But lots of people do.  The reality is that as time passes, people start believing their own bull.  A lot.

It happens to regular people.  It happens to lawyers.  (Which explains in part why litigators often overestimate their probability of success.)  And it happens to judges.

Once initially seemed like the "right" conclusion to you over time becomes "obvious" and then "crystal clear" and then "so undisputably true that only a moron could possibly disagree."

And if you're a judge -- especially one writing a dissent -- that evolution sometimes affects the ultimate tone and content of your opinion.

Those are some of the thoughts when I read Judge Kozinski's dissent from today's Ninth Circuit opinion.

It's not that Judge Kozinski doesn't have a point.  He definitely does.  He might even be right.  It's certainly not crystal clear that there's probable cause to believe that the defendant here would have some drugs in his car.  Sure, there's some prior (recent) history of drugs, and some suspicious stuff, and a lot of talk on the wiretaps that sounds a bit weird and might be code for a drug deal.  But there may well be an innocent explanation for all this stuff as well.  Which Judge Kozinski spells out at length.

So I could definitely see someone coming to Judge Kozinski's conclusion.  The quantum of proof here may not meet the standard for probable cause.

But here's the thing:  It might not meeet that standard, but it totally might as well.  That's what two neutral judges on the panel think, after all.  And, as I read the competing opinions, I can see where the majority is coming from.  There's definitely stuff in there that's suspicious.

But not to Judge Kozinski.  He admits that probable cause "is not a high standard," but says that the government "came nowhere close to meeting it here."  And the tone and content of his dissent is very much consistent with that expressed view.  That this is a totally easy case.

Except it's not.  Reasonable minds can differ.  If the government's evidence didn't show probable cause, I gotta say, at a minimum, it at least came close.  As I read the facts, there's definitely stuff that's suspicious there.  That makes you think that, yeah, they may well be talking about doing a drug deal.  Notwithstanding the fact that I definitely agree that someone reviewing those facts would in no way, shape or form be certain that they were doing a drug deal, since the evidence was indeed subject to multiple reasonable interpretations.

Judge Kozinski does a great job parsing out the innocent explanations for the evidence that the government was able to identify.  He'd have been a great defense attorney.  But his pursuit of those innocent explanations blinds him, in my view, to arguments he makes that just aren't that persuasive.  In the vernacular, it looks like he just starts strongly believing his own bull.  (And, yes, I know that there are another four letters that often conclude that final word.)

I'll mention just one example.  The two alleged conspirators talk about setting up a meet to shop for some "food".  The majority (and government) think that "food" is a code word for drugs, and Judge Kozinski thinks it's a code word for . . . food.  So they arrange to meet at a particular Costco.  But that Costco is a full half hour away from their location, and there's a much closer Costco nearby.  To me (and the majority), that seems weird.  Suspicious, even -- at least in the context of the other evidence.

But that fact doesn't bother Judge Kozinski at all.  He says that not all Costco's are the same, and says that it would make sense to meet at the farther-away Costco because it's relatively newer and also has a fresh deli.

Is that possible?  Sure.  Maybe.  That's possible.  But the guys don't mention the deli, don't talk about it being newer, and don't give any reason at all why they're chosing that one over the closer one.  With all due respect to Judge Kozinski, that's unusual.   If you're really just shopping for actual "food," you usually don't inexplicably drive half an hour out of your way to a Costco when there's a much closer one nearer.  Because, yes, they're all different, but they're also quite similar.

Let's put it this way.  If my wife -- or, I imagine, Judge Kozinski's wife -- said she was going to shop for some food at Costco, and then mentioned that she was going to the Costco that was 40 minutes way from us (rather than the one 10 minutes away), wouldn't that seem at least a little strange?  At least enough to say, "Hey, that's cool with me, but why are you going to that one?"  I promise you I'd ask the question.  If she said it was because it was newer, or had a deli, fine.  I wouldn't suspect that she was buying a pound of meth.  But it's still something.  Yet Judge Kozinski's dissent doesn't admit that it's even that.  Which I think is a downside of his vision, and is the type of stuff that helps gives rise to his thinking that this isn't even a close case.

Of course, as usual, there's some great stuff in what Judge Kozinski says as well.  Like taking the government to task for saying that it was suspicious that the guys were setting up to meet in a not-very-busy place (thus supporting probable cause) where in other cases the government has said the exact opposite -- that drug dealers like to set up in busy places where there's a lot of traffic.  That's spot on.  Damned if you do and damned if you don't.  Everything's suspicious and support probable cause.

But in the overall context of this case, I can definitely see people disagreeing about whether the evidence here was merely "suspicious" or whether it satisifed the quantum of proof necessary for "probable cause".  That's a fine line, and smart people could (and would) argue about whether that line was crossed here.

But the line was at least approached.  It's a close case.  Not an easy one at all.

Notwithstanding Judge Kozinski's stridently articulated view to the contrary.

People v. Washington (Cal. Ct. App. - Sept. 5, 2017)

There have been only two published Court of Appeal opinions thus far in September.

The one published today, after the long Labor Day weekend, should definitely be reviewed by the California Supreme Court.

It's an opinion that decides to ditch a central constitutional principle that's stood for over half a century.  The opinion itself accurately describes the contours of this rule:

"Under the so-called Aranda/Bruton doctrine, a trial court may generally not allow a jury in a joint criminal trial of a defendant and codefendant to hear the unredacted confession of the codefendant that also directly implicates the defendant—even if the jury is instructed not to consider the confession as evidence against the defendant. (People v. Aranda (1965) 63 Cal.2d 518, 529-531 (Aranda), abrogated in part by Cal. Const., art. I, § 28, subd. (d); Bruton v. United States (1968) 391 U.S. 123, 128-136 (Bruton).) Such a confession is so 'powerfully incriminating,' the doctrine provides, that the jury cannot be expected to heed the court’s instruction and put it out of its collective mind when evaluating the defendant’s guilt."

That rule has not only been consistently applied for the last fifty-plus years, but it's also one that's at issue in a relatively large number of cases.  And it's critically important, as it involves what's thought to be the pinnacle of reliable testimony:  a suspect's confession.

The Court of Appeal holds that this longstanding precedent is no longer good law after the Supreme Court's 13-year old decision in Crawford, which limited the Sixth Amendment right to cross-examine witnesses to "testimonial" statements.  You might rightly think that the fact that confessions are surely "testimonial" means that Crawford doesn't abrogate the Aranda/Burton doctrine at all.  But the Court of Appeal believes that the necessarily implication of that decision (and its progeny) mean that the 50 years of precedent that followed Aranda and Burton are no longer good law.

There are definitely those who will find Justice Hoffstadt's reasoning persuasive.  And there are definitely those who will find it unpersuasive.  To me, given those facts, before we ditch a critical principle of criminal procedure and constitutional law, the California Supreme Court should definitely weigh in, rather than let a panel of the Court of Appeal conclusively decide this issue.

There's a lot to be said for the other side of this dispute.  If only because I think that even if the Sixth Amendment didn't apply here (which it may well), then the Due Process Clause might require the same result.  The Court of Appeal thinks it doesn't, arguing that if a more specific clause doesn't apply, then a more general one shouldn't require a different rule.  But my view is that even if there's not a specific right to cross-examine a particular witness, to admit testimony with a required limiting instruction that we practically know the jury will ignore is indeed something that the Due Process Clause cares about.  Quite a bit.

Moreover, if, indeed, there's no constitutional barrier to admitting the testimony here, then I surely think that separate trials (or at least separate juries) should be required.  Particuilarly in high-stakes cases like the first-degree murder trial here.  The Court of Appeal holds that one trial was just fine.  But if we're indeed going to revolutionize confession admissibility like the panel does here, my own view is that -- at a minimum -- the burden of two juries is definitely worth it.  If only to avoid the manifest prejudice that we all recognize will otherwise arise from admitting the confession.

There are powerful reasons for the Aranda/Burton rule.  There's the Sixth Amendment at stake.  As the opinions recognized, there's also a Due Process issue.  And that rule was also adopted by the judiciary in part pursuant to its inherent supervisory powers.  All those principles are still in play.

The Court of Appeal holds that the law now is different -- beneficially different -- than that of the last fifty years.

The California Supreme Court should grant review and decide whether it agrees.

Updike v. Multnomah County (9th Cir. - Aug. 31, 2017)

I'm just fine with soft pedaling the facts a bit when the issue is a legal one.  Particularly when you're dealing with a grant of summary judgment, where you have to view the facts in the way that's the most favorable to the non-moving party.  So if an opinion paints a particular picture of one of the parties that's a little bit one-sided, generally, I'm totally fine with that.

That said, the facts of today's opinion may still seem just a bit too shaded even for my flexible tastes.

Not that the plaintiff doesn't have a lot of sympathetic facts going for him.  He's been totally deaf since birth, doesn't read or speak English well, and isn't very good at reading lips (since he's not too familiar with the English words, so don't necessarily know what they look like).  So he relies on American Sign Language (ASL).  That's his basic world, especially since "[a]ll of [his] friends are deaf and [his] ex-wife is deaf."

And when he's arrested and booked and in associated proceedings, he doesn't receive an ASL interpreter, and allegedly suffers harm as a result.  That's definitely too bad.

Judge Gould's opinion recites all of these facts, as well as others.  An opinion that ultimately reverses (in part) the district court's grant of summary judgment to the state.

Okay.  Fair enough.

But, as I said, I have a feeling that what facts are included and what facts are left out may be partly driven by the result Judge Gould reaches.  To take but one example:  you get lots of details about the plaintiff's life and tribulations, but only a glimmer (if that) into why the plaintiff was arrested during a "disturbance" at his home, and learn only late in the opinion that he had also "been booked at MCDC on five previous occasions."

Similarly, Judge Gould's reaction to the plaintiff's interactions with the relevant court personnel might also be viewed as potentially one-sided.  For example, Judge Gould recounts what he describes as a "series of miscommunications" with his pretrial release officer, but my strong sense is that others did not view these events as "miscommunications" but rather simply plaintiff's refusal to do stuff.  Maybe that's why plaintiff himself thought that this officer believed that he "used his hearing impairment as an excuse to violate conditions of his pretrial release."

And when Judge Gould notes that the pretrial officer's log entries noted that the plaintiff had "poor reporting during his time with pretrial services, that [he] used his hearing impairment as the reason for not complying with the conditions of supervision, and that their interactions were challenging because [he] “argued” everything," Judge Gould had a definite response to this impression, saying: "The “hearing impaired, learning impaired, and developmentally disabled individuals engage in a range of coping mechanisms that can give the false impression of uncooperative behavior or lack of remorse.” Armstrong v. Davis, 275 F.3d 849, 867 (9th Cir. 2001), abrogated on other grounds by Johnson v. California, 543 U.S. 499, 504–05 (2005). As a result, it is likely that such individuals may have difficulty interacting with personnel who supervise them. Id. This is one basis that may explain why the interactions between Sacomano and Updike were challenging."  Yeah, maybe.  That's surely one possible explanation.  Though another -- unmentioned -- one might simply be that Updike was in fact an arse, and was actually challenging in the exact same ways a non-deaf person can be challenging.

Again, all this is fine; it's okay, especially on summary judgment, to have a particular take on the facts, and to highlight those that favor the non-moving party as well as the ultimate dispensation of the opinion.

It's just that, when I was reading this opinion, I got a more palpable sense of that reality than I sometimes get reading other opinions about the same subject matter.  So I thought it worth mention.

(None of which, of course, says that Judge Gould's impression is the wrong one.  Just that's it's not necessarily the right one either.)

People v. Seals (Cal. Ct. App. - Aug. 27, 2017)

Someone steals something (a phone) that costs $900, but with sales tax, it would cost $972.

Whether that's commercial burglary (a felony) or shoplifting (a misdemeanor) depends on whether  "the value of the property that is taken . . . exceed[s] nine hundred fifty dollars ($950)."

Well?  Does it?

Do you count the sales tax, or not?

I definitely could see competing visions here.  On the one hand, the "value" of the property could be seen as only the $900, since that's the "worth" of the "thing".  On the other hand, its value could be the whole $972, since that's what it would in fact cost -- what a willing buyer and seller would agree on.

The Court of Appeal agrees with the latter approach.  Which is different than courts in some other jurisdictions.

Its reasoning (in part):

"Unlike the sales tax law and administration described in several of the cases from other jurisdictions, California law does not obligate a merchant to collect a sales tax from the customer. This is a significant distinguishing factor. In California, whether the retailer seeks a sales tax reimbursement from the customer is a matter of contract between the buyer and seller. Under this sales tax framework, the addition of sales tax reimbursement to the cost of an item is an indication of that item’s fair market value: the total and highest price to which the willing buyer and seller agree."

That makes sense.  The retailer is paying the tax, so adds it to the cost of the product.  Just like the retailer is paying rent, which is also (albeit less expressly) added to the cost of the product.

Though you see the other side as well:  that the "value" of the property is still only $900, if only as established by (1) the fact that that's what this same product would indeed be sold for (in places with no sales tax, or when exempt from tax), and (2) that's all the retailer loses if the phone is stolen -- as here (since no sales tax is paid).

Tough call.  Though I like the scope and coherence of the Court of Appeal's view here.  It takes the matter seriously, and its analysis is pretty darn good.

Even as I understand that the other side has definitely good arguments as well.

(At minimum, the lesson learned here is (1) don't steal something worth $900, or (2) if you do, steal it from someplace that doesn't charge sales tax.)

Avilez-Rodriguez v. LA Community College District (Cal. Ct. App. - Aug. 29, 2017)

It's not that I don't disagree with the result of this case.  I do.  Or its reasoning.  Which is indeed based on a correct reading and interpretation of the underlying cases.

My only point of divergence is with the panel's reluctance.

Here's the scoop:

When a typical employee gets fired, her time to sue runs from the last day of her work.  Not the date she was notified she was being fired:  her last day of work.  Even if she continues to work for the company a bit after she was notified that she was being terminated.

Here, a tenured professor gets fired.  More concretely, he gets notified that he was denied tenure, which effectively means he's fired.  He continued to work for the university for a little bit after he was notified that his tenured was denied.

When does his time to sue run?

The answer seems obvious to me:  From the date of his last day of work.  And that's exactly what the Court of Appeal holds.  A holding that follows directly from precedent, which the panel's opinion explores at length.

But after reaching that conclusion, the Court of Appeal says:

"We acknowledge that both case law and rational policy considerations may militate in favor of a rule that in cases involving an allegedly discriminatory denial of tenure, the statute of limitations for filing an administrative complaint runs from the date the employee is notified of the final tenure decision. Had our Supreme Court in Romano merely distinguished denial of-tenure cases from the case before it, we might well adopt such a rule. But we cannot ignore the language of Romano or the fact that our highest court expressly questioned and unequivocally criticized cases adopting that approach."

Why so timid?

In my view, "case law and rational policy considerations" militate in favor of precisely the rule the Court of Appeal articulates here, not the other way around.  If the clock for normal employees does not start ticking until they actually leave the company -- even if they're definitively notified on an earlier date that they're being fired -- then that exact same reasoning applies equally to employees who work for a university and who are denied tenure.  They're similarly-situated.  They should be treated the same.

What'd be weird is if they were subject to a different rule.  That's what wouldn't be "rational" or consistent with public policy.  Because being told that you aren't getting tenure (and hence have to stop work on Day Y) and being told that you're being fired (and hence have to stop work on Day Y) are the same thing.  The exact same clock should apply.

So good result.  But an even better one than the panel perceives it to be, IMHO.

People v. Drew (Cal. Ct. App. - Aug. 29, 2017)

Sometimes even someone as jaded as I am can't believe what I'm reading:

"Appellant Charles Patrick Drew sexually assaulted Amber Oceja while she was in a diabetic coma, and within two hours of the assault, Oceja died from diabetic ketoacidosis."

What?!  Someone's in a diabetic coma and you take that opportunity to sexually assault her?!  Wow.

Then there's the resulting legal quandry:

"The experts all agreed that since Oceja was already unconscious when the sex crimes occurred, they did not materially contribute to her death. Indeed, it appears she would have died when she did even if appellant had not sexually assaulted her. However, appellant did not just sexually assault Oceja while she was unconscious, he failed to seek medical assistance for her knowing she was in dire physical condition – a fact which would remain hidden as long as she was confined in his motel room."

So does that mean he's guilty of first degree murder?  Even though he didn't contribute to her death (apart from doing nothing -- which, ordinarily, is not a criminal offense)?

Apparently so.

"We hold there was a sufficient causal relationship between this fatal omission and appellant’s sex crimes to support his conviction for first degree felony murder."

Oh, and just when you thought the facts couldn't be any more bizarre:

"At the time this case arose in 2012, appellant was 62 years old and Oceja was 29."

Yep.  That's a 62-year old man sexually assaulting a 29 year old woman when the latter is in a coma and about to die.

What a world.

State of North Dakota v. McCarthy (9th Cir. - Aug. 28, 2017)

I thought that I had suddenly lost substantial intellectual function when I read the caption of today's opinion by the Ninth Circuit.  Or at least needed a new pair of glasses.  Is the plaintiff in this case really North Dakota?!  Because last time I checked, I'm pretty sure North Dakota isn't in the Ninth Circuit.

But yes.  It's true.  North Dakota.  That North Dakota.

Whodathunk?

So I gotta admit, I was so befuddled by the caption, I skimmed the opinion at first to just figure out how the heck the case was in the Ninth Circuit if it involves North Dakota.  And I had to read a lot of pages just to figure it out.

But then it all made sense.

North Dakota wasn't the plaintiff to begin with.  The Sierra Club was.  It sued to compel the EPA to do something about sulfer dioxide emissions.  And then a bunch of states, led by North Dakota, that didn't want the EPA to do anything intervened in the lawsuit.

Hence why North Dakota leads the caption and argued the case.  Since it was objecting to a consent decree that the EPA and the Sierra Club had entered into to resolve the suit.

Okay, then.  Welcome to California, North Dakota.  You'll find that it's a bit warmer out here than what you're used to.  Especially (at least down here) this week.

As for the merits, though, uh, sorry about that.  North Dakota loses in the district court.  And loses on appeal as well.

Sorry about that.  But I hope that your lawyers at least enjoyed their stay here.

And wore lots of sunscreen.

First Amendment Coalition v. US DOJ (9th Cir. - Aug. 25, 2017)

Don't reveal settlement offers made during mediation, and especially don't reveal settlement offers made during official Ninth Circuit mediations.  Otherwise the Ninth Circuit may well elect to shame you by mentioning you by name.  As happens today to Davis Wright Tremaine associate Jonathan Segal:

"In oral argument before this panel, Jonathan Segal, counsel for appellant, disclosed confidential information related to offers made by his opponent in mediation before the Ninth Circuit Mediation Program. This is in clear violation of Ninth Circuit Rule 33-1(c)(4), which states that any written or oral communication made in Ninth Circuit Mediation Program settlement discussions may not be disclosed to anyone who is not a participant in the mediation. The panel reiterates the importance of maintaining confidentiality in the Ninth Circuit Mediation Program. The wrongfully disclosed information was not considered in deciding the case."

Yeah.  Don't do that.

(Though he did win the appeal.)

In Re Miller (Cal. Ct. App. - Aug. 25, 2017)

A public service announcement from today's opinion on something you might want to look out for the next time you go to your bank:

"Defendant, Patton, and Tate were all members of the 4-Deuce Crips street gang and had committed follow-home robberies with one another, and with others, in the past. The robberies were typically conducted as follows: A “spotter” would go into a bank, locate a person withdrawing a large amount of cash, and identify that person for the others involved in committing the robbery. The “driver” would tail the victim to his or her destination, and the “getter” would take the money. According to Tate, who testified as a witness for the prosecution at trial, they did not always carry a gun during follow-home robberies; it depended on the age, size, and sex of the victim, as well as whether the victim was alone. Tate estimated he had participated in six prior robberies with Patton and seven or eight with defendant."

Particularly since, here, one of the victims dies.

Rubenstein v. The Gap (Cal. Ct. App. - Aug. 24, 2017)

I'll be the very first person to admit that I know virtually nothing about "factory" or outlet stores.  If only because I don't buy clothing.  Ever.

But what very little I do know seems entirely consistent with Justice Lui's opinion today.  Which holds that it's not fraud (or unfair competition, etc.) for The Gap and Banana Republic to sell cheaper clothes at its "factory stores" that haven't previously been sold in their "regular" stores.  Because the nature of a "factory" store doesn't inherently represent that the same products are available in regular stores; instead, consumers simply expect that stuff in "factory" stores just means it comes from the underlying "factor"; i.e., the brand.

Seems right to me.  Sure, I sort of think that the stuff -- or at least some of the stuff -- in a factory store is probably sold at a "regular" store at a higher price.  But maybe it is, maybe it isn't.  That's up to the store.  I'm buying the stuff I'm buying because it seems like a good deal (or not).  There's no inherent misrepresentation just because you slap a "Gap" label on stuff that The Gap sells at its factory stores.  (Which, of course, was in turn likely produced in some overseas sweatshop.)

So putative class action lawsuit dismissed.

People v. Button (Cal. Ct. App. - Aug. 17, 2017)

Every bad relationship is bad in different ways.  As well as sad.  And any such relationship you learn about by reading about it in a Court of Appeal opinion is almost necessarily especially bad and sad.

This is not your typical domestic assault case.  It's nonetheless depressing in its own way.  If only because, in addition to the violence, you can palpably intuit the emotions that the victim must have had even before being punched.

Here are the facts:

"At the time of the charged offenses, Button and the victim, B.D., were students at Palomar College. They had been in a dating relationship for approximately a year and a half and had previously been engaged. Their engagement ended a couple of weeks prior to the incident giving rise to the charged offenses.

Although their engagement had ended, on the day before the incident, Button and B.D. had sexual intercourse. According to B.D., Button told B.D. that they could continue to be "lovers" if she would agree not to reveal the nature of their relationship to anyone.

The next day, B.D. and Button had a class together. During class, B.D. learned that a group of Button's friends were going to a restaurant after class. One of the friends invited B.D. to come along. While B.D. was gathering her belongings after class, everyone left without her. Shortly thereafter, B.D. called Button a couple of times and sent him some text messages. She received no immediate response.

Later that day, B.D. received a call from Button. B.D. asked Button to meet her so that they could talk. They agreed to meet in front of a building on campus. When Button arrived to the meeting, he appeared to be very upset. His hands were clenched and his face and voice conveyed anger. Button accused B.D. of telling two of his friends that they were still dating. B.D. denied the accusation, and Button called her a liar.

B.D. took off her glasses because she was crying. She then stepped forward with her arms open in order to give Button a hug. Button grabbed both of B.D.'s biceps and began squeezing her. B.D. was shocked and struggled to get free. Once B.D. escaped Button's grasp, she slapped Button across the face with an open hand.

Button immediately punched B.D. in the face, twice. B.D.'s hands were at her sides at the time Button punched her. B.D. bent over and blood rushed into her mouth. Immediately after the incident, the two walked to a health services office on campus."

That factual recitation for some reason struck me as especially depressing.  Perhaps because you had a guy who told his former fiancee that he was willing to still have sex with her only if she agreed not to tell anyone they were still doing so, and she agreed.  Informed also by the fact, revealed later in the opinion, that "there was evidence that B.D. outweighed Button by 120 pounds."

And further informed by the fact that B.D.'s injuries were serious ones:  she suffered a concussion as well as three acute fractures of her facial bones.

Depressing all around.

In Re Google Header Referral Privacy Litigation (9th Cir. - Aug. 22, 2017)

Google settles a class action, and every single penny of the multi-million dollar settlement goes to (1) the attorneys, and (2) an award of cy pres funds to various privacy organizations -- most of which are at the alma matters of the plaintiffs' counsel.  Objectors object and appeal.

But lose.  The majority says:

"[W]e reject the proposition that the link between the cy pres recipients and class counsel’s alma maters raises a significant question about whether the recipients were selected on the merits. There may be occasions where the nature of the alumni connections between the parties and the recipients could cast doubt on the propriety of the selection process. But here, we have nothing more than a barebones allegation that class counsel graduated from schools that house the Internet research centers that will receive funds.

The claim that counsel’s receipt of a degree from one of these schools taints the settlement can’t be entertained with a straight face."

But Judge Wallace dissents.  And isn't laughing.  He says:

 To me, the fact alone that 47% of the settlement fund is being donated to the alma maters of class counsel raises an issue which, in fairness, the district court should have pursued further in a case such as this. The district court made no serious inquiry to alleviate that concern. . . . In our case, we have a cy pres-only settlement. That alone raises a yellow flag. Furthermore, we have a class settlement before formal class certification. That raises another yellow flag. Lastly, we have almost half of the settlement fund, several million dollars, being given to class counsel’s alma maters. To me, that raises a red flag. I am especially dubious of the inclusion of the Center for Information, Society and Policy at Chicago-Kent Law School (a law school attended by class counsel), which center appears to have inaugurated only a year before the parties herein agreed to their settlement."

That's a lot of flags.

Now, personally, as a professor at a law school, I'm more than happy to see millions of dollars flow my way (or the way or my institution).  And, truthfully, we could definitely do some good stuff with such funds.

But Judge Wallace has a point.  Though the majority does as well.  We want to be a little careful about cy pres settlements that may not actually be the best way to spend the underlying money.

But not too careful.

U.S. v. Castillo-Mendez (9th Cir. - Aug. 21, 2017)

The sun may be disappearing (temporarily, anyway).  The United States may be headed by the former head of a reality show.  But even in the crazy world in which we live, some things do not change.

Like the Ninth Circuit having to consider illegal reentry convictions coming out of San Diego.

Those things happen all the time.  Usually they're not that complicated.  But here, the defendant has a neat defense:  he says he wanted to be caught by the border patrol, in order to escape the hands of his threatening coyote smugglers.

Well, okay then.  If that's true, then he's not guilty of attempted illegal reentry.  It's a factual dispute.  And the district court gave an erroneous instruction.  Which requires the conviction to be reversed.

Still, even though the defendant gets relief here, he still faces a retrial.  And even though I agree that it's not clear beyond a reasonable doubt that no jury would possibly acquit him, I still think the odds are against him in the retrial.

But at least the instructions will be correct.

Skulason v. California Bureau of Real Estate (Cal. Ct. App. - Aug. 16, 2017)

What Justice Humes says is absolutely right:

"Skulason’s point is well taken. There is no doubt that the Internet substantially increases the ease with which the public can access information that was previously available only “after a diligent search of courthouse files” or other locally kept records. The reality of our electronic age, for better or worse, is that all kinds of public information that was once hard to obtain has become increasingly accessible, including information contained in or related to documents filed in court cases. And there is no doubt that increased access to information about prior convictions brings with it additional, and potentially harmful, collateral consequences."

Reasonable minds might perhaps differ as to what comes after this (insightful) paragraph.  Since the Court of Appeal nonetheless comes out the other way:

"We are sympathetic to Skulason’s concerns, but her remedies lie with the Legislature or the Bureau, not with the courts through a writ of mandate. The Legislature can consider enacting a law to restrict the Bureau’s ability to post documents that refer to convictions that have been dismissed under sections 1203.4 or 1203.4a. And the Bureau, rather than posting such documents unredacted and unexplained, can consider different approaches that might preserve its legitimate interests and still reduce the negative collateral consequences of its current practice. Our role, however, is limited to deciding whether existing law requires the Bureau, as ordered by the trial court, to “remove any and all documents containing information about [Skulason’s] expunged and/or dismissed convictions from its public website and publicly searchable database.” We conclude that it does not, and the court therefore erred by granting the petition for a writ of mandate."

There's nonetheless no doubt that the Internet is a double-edged sword.

P.S. - The case is also a pretty good example of the Streisand effect.  Before the lawsuit, someone had to deliberately go on the Bureau of Real Estate's web page and look up Ms. Skulason's license to find out about her "expunged" convictions.  Now, by contrast, with the publication of the opinion, I would fully expect that every time someone googles the name "Belinda Skulason", one of the very first hits will be a discussion of Ms. Skulason's previous offenses.  Particularly since "Belinda Skulason" isn't an extraordinarily common name.  (As of today the district court docket sheet is Result No. 9, an amicus brief is No. 11, and the Court of Appeal's opinion is No. 16.  And I'm guessing those results will move up over time.)

Ponte v. County of Calaveras (Cal. Ct. App. - Aug. 16, 2017)

This introductory paragraph really gets to the heart of the matter:

"Plaintiff Dennis Ponte is asking defendant County of Calaveras (County) to pay him over $150,000 to reimburse him for work purportedly performed on the County’s behalf pursuant to an oral contract. The contract did not contain any fixed payment, and no bid was submitted--far less approved--pursuant to relevant county ordinances governing public contracts. Ponte disregarded opportunities to abandon his claims after the County provided him with pertinent legal authority demonstrating that his claims lacked merit."

You don't need to read the remainder of the opinion to figure out where this is going.

Unless, of course, you'd like to see the attorney for Mr. Ponte receive similar critique.  But for that you'll only have to read as far as the first footnote:

"We begin by noting with disapproval the paucity of pertinent record citations throughout Ponte’s opening brief, which contains key passages either devoid of any citations, or containing inadequate citations, placing an unfair burden on this court. This same flaw is apparent in the reply brief."

The Court of Appeal certainly isn't shy here.

People v. Trever P. (Cal. Ct. App. - Aug. 14, 2017)

I just knew that when this opinion mentioned that it involved a 12-year old child babysitting his 4-year old cousin that we'd be talking about something bad.

Admittedly, I didn't know that it'd be this bad.  For example, that we'd be talking about an actual tape recording of a molestation.  Or that it'd be so bad that this is what he trial judge had to say:

“I have to say this tape recording, Exhibit 2, is some of the most sickening evidence I've heard. I have presided over adult jury trials involving murders with gory evidence and sexual abuse cases with horrific testimony from the victims, but actually hearing the acts being committed, as is the case here, and Trever's callous and sadistic treatment of Ralph is very disturbing. He seems to take pleasure out of hurting Ralph, and threatening to leave him and spanking him. [¶] There are numerous instances of Trever telling Ralph to bend over and open his butt, that he was going to stick it in, and for Ralph to keep it in; and to do it just one more time, over and over; or requesting Ralph to 'suck it' and threaten[ing] to leave him alone if he didn't and even threatening to kill him.”

Yeah.  Not good.  Especially when you're listening to this stuff exactly as it happened.

On the intellectual front, however, I will say that the opinion is definitely interesting, and would the underlying dispute would also make for a decent law review article.  The issue is whether a parent can "consent" on behalf of her minor child to secretly record communications with someone else.  Usually you have to get consent of both sides to a communication, or it's a felony.  But in certain circumstances, you only need one party's consent; e.g., when you're trying to get evidence related to extortion, crimes of violence, etc.

But here, neither party to the communication gave consent, or even knew that things were being taped.  Yet most courts, including this one, hold that the parent's consent "on behalf of" the minor child was nonetheless sufficient to constitute "consent" within the exception.

There's nonetheless a huge fight about how far this goes.  What about "consent" on behalf of a 17-year old child (who, again, doesn't know or want the communication to be recorded)?  Or "consent" by a noncustodial parent?  Or "consent" by other types of agents; e.g., a principal granting "consent" for his agent (attorney, employee, etc.) to secretly tape?  Are those valid too?

Not relevant here, since this is an otherwise straightforward "four year old child" type of case.  But just how far does the doctrine of "vicarious consent" go?  (And does it even make sense at the outset, or is it inconsistent with the text of the statute in even its "purest" form?)

Interesting stuff.

Curci Investments v. Baldwin (Cal. Ct. App. - Aug. 10, 2017)

"Reverse veil piercing".  Super cool.

And allowed in California in an appropriate case.

Including, potentially, this one.

People v. Financial Casualty & Surety (Cal. Ct. App. - Aug. 8, 2017)

Two questions about this opinion:

(1) What's the relevant standard of proof?  The opinion doesn't seem to mention it, but I think it's at least relevant, if not critical.  Bail doesn't get forfeited if the defendant's been deported.  Here, the surety introduces evidence that certainly seems to at least suggest that the guy might well have been deported.

The surety convincingly establishes that, after posting bail, the defendant was arrested in Utah on drug offenses.  And, as a condition of being released on probation for these offenses, his booking sheet says "Defendant to be released to Immigration and Customs Enforcement (ICE). [¶] Defendant may be released early for deportation into the custody of Immigration and Customs Enforcement (ICE); or leave the country voluntarily within 10 days of release. [¶] Do not re-enter the country illegally."

Since the guy was released to ICE directly from jail, that strongly suggests that the guy was kicked out of the country, since that's what typically happens.  The surety also introduces some cooberating evidence:  a letter from the Department of Homeland Security that reads:  “This is in response to your letter dated August 5, 2015, in which you seek information about the deportation status of Lesman Orlando Benegas-Cruz. [¶] The subject departed from the U.S. to Honduras on June 18, 2015.”

Well, geeze.  That definitely suggests that, yep, the guy was deported to Honduras, no?

Now, the Court of Appeal correctly notes that this evidence doesn't prove that the guy was actually deported.  The letter says that he "departed" for Honduras (even though it also talks about his "deportation" status), and the probation conditions also leave open the possibility that defendant might be permitted to leave the country voluntarily.

So I agree that I wouldn't bet my life -- or even my house -- on the fact that the defendant was in fact deported.  The evidence doesn't establish that fact with 100% certainty.

But that's where the standard of proof comes in.  At least to me.  My guess is that the relevant standard is proponderence of the evidence.  Or maybe even something less.

(I make this latter point because the opinion cites a case in a different section of the opinion that held that “the test is not whether it has been conclusively demonstrated a defendant had an actual and valid excuse for his nonappearance,” rather “the statute requires the court only have 'reason to believe that sufficient excuse may exist for the failure to appear.'")

The evidence the surety introduced may not prove conclusively that the guy was deported.  But it certainly gives a strong reason to believe that might well have transpired, no?  If the standard of proof is 50.001%, geeze, that evidence might well be enough.  If I had to bet one way or another whether the guy was, in fact, deported, I might well take the "Yes" side of that bet.  The evidence might show at least that it's more likely than not that the guy was kicked out.  Even though, sure, there's at least a chance that the guy voluntarily left.

What about you.  You've got $1000 in free money to bet.  Would you take the "Yes, Deported" side of the bet, or "No, Not Deported" side?

So it seems to me that the standard of proof is pretty darn important.  And that the surety's evidence might also well satisfy whatever the underlying standard is.  Even if, admittedly, it leaves open an alternative hypothesis to deportation.

(2)  A related, but quicker, thought.  Why does this matter anyway?

The opinion cogently cites precedent from the Court of Appeal that says that if you're deported, the surety doesn't lose his bail money, but if you voluntarily skip the country, yep, the money's gone.  I get that rule, and in most circumstances, it makes sense.  You can't just flee to Mexico and get your bail money back.

But, here, we're merely disputing whether someone was "actually" deported to Honduras or whether ICE gave him the option of "voluntarily departing" and never coming back.  The guy was going to be deported if he didn't "voluntarily" leave.  Undisputedly.  And since he's not a citizen, he's not allowed to come back.  Under such circumstances, it's not an actual choice.  The authorities are the ones who are making you leave.  You're not skipping out on bail.  You're being deported.  Either de jure or de facto.

Why does it make a monetary difference which one it is?  (A) It's not your choice. (B) You're not doing it to skip out on bail. (C) Either way you're forced, under official orders, to leave the country and never come back.  (See, e.g., the probation condition:  "Do not re-enter the country illegally.")

"Voluntary" departure in the deportation context doesn't seem to me actually voluntary, nor the type of "skipping the country" that precedent talks about when it mentions skipping bail.  So I'd like to have read a bit more analysis of this issue as well.

'Cause I'm not sure that, even if the evidence was consistent with a "voluntary" departure, that should be treated any different than an actual deportation in this context.

(The fact that, on appeal, the surety introduced additional evidence that may well show that, yeah, the guy was actually deported only strengthens my thought that the result here might well be a forfeiture in unjust circumstances.  I agree with the Court of Appeal that it can't consider this evidence since it wasn't presented below  But if in fact that evidence does indeed show that, yeah, he was indeed given the official boot, rather than voluntarily departed, that's just proof positive in my view that the "Yes he was deported" side of the bet is in fact a pretty good one to have taken, even on the evidence that was introduced below.)

DLS Precision Fab v. U.S. ICE (9th Cir. - Aug. 7, 2017)

This opinion amply demonstrates at least one of the reasons why you should (1) hire a good human resources director, and (2) make sure that s/he's in fact doing a good job.  Because if your company start getting letters from the United States and your HR Director "literally stuff[s] the government’s correspondence in a drawer and never respond[s]," you may find yourself on the wrong end of a $300,000+ penalty.

Which is generally not good for your company.

In Re Marriage of Garcia (Cal. Ct. App. - Aug. 4, 2017)

Florencia:  "I've had it.  We've been married for 24 years, 7 months, but we're not making 25.  I'm filing for divorce."

Juan:  "Fine.  But guess what?  We were never actually married."

Florencia:  "What?!  That's absurd."

Trial Court:  "Yep, Juan's right.  You were never actually married.  Divorce petition dismissed."

Florencia:  "Okay, then.  New lawsuit.  I was a putative spouse.  Because I definitely thought I was married to you.  So give me the same relief."

Juan:  "I've got some Latin words for you.  'Res judicata'.  You already lost.  You can't sue me again."

Court of Appeal:  "Not so fast.  This is California.  A 'nullity' action is a different primary right than a 'divorce' action.  So the lawsuit can continue."

That's essentially the dialogue that underlies this opinion.

People v. Echavarria (Cal. Ct. App. - Aug. 3, 2017)

You usually don't see a first-degree murder conviction reversed for juror misconduct.  But for every rule, there's an exception.

As today's opinion proves.

It's possible that the defendant will get convicted of the same offense (first- rather than second-degree murder) at the retrial.  But maybe not.  It's far from an open-and-shut case regarding premeditation.

Which is why there's prejudice here as well.

Regardless, not really worth shooting the guy over a $1200 debt for stucco repair.

People v. Singh (Cal. Ct. App. - Aug. 2, 2017)

There are undoubtedly people who are far more familiar with rap lyrics than I am.  Still, even my fairly low level of knowledge makes me wonder how probative (as opposed to prejudicial) the admission of rap lyrics was in this case.

Here's what the Court of Appeal says:

"His writing, “Put it in your face and melts in your mouth like an M&M,” “two to the gut, watch you shut your eyes slow,” and, “I shoot for fun just to watch niggas shake like they goin’ dumb. Put two in your chest, now you goin’ numb” eerily describes what he did to Montoya—shot him in the face and twice in the gut. A jury could infer from defendant’s lyrics his identity as the shooter and his intent to shoot the victim in a specific manner."

Now, if that's how the defendant in fact shot the guy, yeah, that's pretty darn probative.  (Though somewhat diminished if these lyrics are just isolated snippets from several notebooks of rap lyrics, which seems to be the case here.)

And the Court of Appeal says that these lyrics "eerily describe" exactly what he did.

Really?

(1) "Put it in your face and melts in your mouth like an M&M."  In the real world, he first shot the guy in the face, true, but not in the mouth, so that "melts in your mouth" part seems exactly not to describe the crime.  And "put in in your face" seems to me like it's referring to putting the gun in the guy's face, not necessarily shooting him there (since he gets shot with the gun in his mouth).  So I'm not sure this "eerily describes" the crime more than, oh, a thousand other rap lyrics about putting a gun in someone's face.

(2)  "I shoot for fun just to watch niggas shake like they goin’ dumb."  But wait.  That's not what the the guy did.  He just walked up to the guy, someone said "Hey Joe," and shot him in the face.  Didn't hesitate.  Didn't make the guy shake.  Didn't intimidate the guy before shooting.  Just shot.

(3)  “Two to the gut, watch you shut your eyes slow.”  That describes shooting a guy in the gut and watching him slowly die -- a classic screenplay threat (and act).  But that's totally not what the guy did here.  He shot him in the face first, a shot that was -- according to the testimony at trial as well as the Court of Appeal -- “an immediately fatal injury".  So no watching someone slowly die at all.  

And as for even the out-of-context "two in the gut" line, the Court of Appeal says that's precisely what the defendant did.  But after shooting the guy in the face, he actually shot him once in the gut -- "near his belly button" -- and then (a) twice more (not once), (b) elsewhere.  "After Montoya fell to the ground, defendant stood over him and shot him three more times; near his belly button, in his left groin, and in his penis."  So that's once in the gut and twice in the groin, not "twice in the gut".  Since I don't know about you, but I don't call my groin and/or my penis my "gut".  And even if I did, that'd mean three in the gut, not two.

Republic of Marshall Islands v. United States (9th Cir. - July 31, 2017)

This morning brings a very good example of a lawsuit with a zero percent probability of success.  Zero.  As anyone with any knowledge of the underlying subject matter -- despite it being allegedly "complex" -- would well know:

"Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (the “Treaty” or the “Non-Proliferation Treaty”) . . . calls on each party to the Treaty “to pursue negotiations in good faith on effective measures” to end the nuclear arms race and accomplish nuclear disarmament.   Armed with Article VI, one of the treaty parties, the Republic of the Marshall Islands, filed suit, asking the federal court to declare the United States in breach of its treaty obligations and to order the United States to engage in good-faith negotiations."

Uh, dude.  To state the facts of the case is pretty much all I need to know in order to tell you how it's going to come out.

But lest you take it from me, here's how the Ninth Circuit summarizes things:

"These claims are nonjusticiable -- Article VI is not directly enforceable in federal court, the Marshall Islands’ asserted injuries are not redressable, and the claims raise nonjusticiable political questions.  At bottom, the suit is doomed because diplomatic negotiations among parties to this Treaty fall quintessentially within the realm of the executive, not the judiciary. Parleying a halt to the nuclear arms race and achieving nuclear disarmament involve decision-making delegated to the political branches. We affirm the district court’s dismissal of the complaint. Asking the federal court to order the United States to negotiate in “good faith” on “effective measures” for nuclear disarmament puts the judiciary in the role of nanny to the executive. Under our system of separation of powers, the federal court cannot give the Marshall Islands the judicial relief it seeks."

And that's even from an author (Judge McKeown) who's probably generally somewhat sympathetic to the plaintiff's cause.

In short, no, you're not going to win this lawsuit.  No chance.  Zero.

Baker v. Italian Maple Holdings (Cal. Ct. App. - July 31, 2017)

Is an arbitration agreement enforceable if a consumer (1) signs it, (2) has a statutory right to rescind her agreement within 30 days of her signature, but (3) dies before the 30 day statutory period expires?

After this opinion, the Court of Appeal is split on the issue.

One opinion, from eight years ago, holds that the agreement isn't binding in such circumstances.  But a different opinion, from now, holds that the agreement is binding in such circumstances.

It's a statutory interpretation case, and revolves around the meaning of what the statute means when it says that "[o]nce signed, such a contract governs all subsequent open-book account transactions for medical services for which the contract was signed until or unless rescinded by written notice within 30 days of signature."  Does that mean that since the contract was never rescinded, it's still valid?  Or does it mean that since the statutory 30-day period never had a chance to expire, it's invalid?

The question is particularly relevant when, as here, the consumer dies allegedly because of the negligence of the party seeking to enforce the arbitration agreement.  To put it a different way:  Can you frustrate the 30-day statutory cooling off period by killing the signator so she can't exercise her right to rescind?

There's a split in the Court of Appeal.  It's an important issue.  It's one that recurs -- particularly (as here) in the nursing home context, where I imagine a nontrivial number of people die within a month of being admitted.  And the latest opinion not only expressly disagrees with the prior opinion, but also garners a dissent.

The California Supreme Court should step in and decide the issue once and for all.  Whether you get to go to court upon your death shouldn't depend on what particular panel you happen to draw.

Rush v. White Corp. (Cal. Ct. App. - July 28, 2017)

Justice Richman savages the appellants in this opinion.

He doesn't like the way they crafted their response to the moving party's separate statement of material facts below.  He doesn't like the way they wrote their briefs.  He doesn't seem to like much of anything about what counsel for appellants have done.

The overwhelming majority of the opinion is about the quality of the briefing, and the arguments therein, rather than on the actual merits of the case.  (Though admittedly these things are intertwined.  A little bit, anyway.)

It's a cautionary tale.  About how to not write your separate statement of material facts.  About how not to write you brief on appeal.

And about how merciless the Court of Appeal can be if you ignore the above counsel.

People v. Arredondo (Cal. Ct. App. - July 28, 2017)

There's a lot here to consider.  A lot.

The majority opinion spans 69 pages.  The dissent is quite lengthy as well.

I'll let the introduction to the dissent set up the issue:

"The relevant facts from trial span a mere three and a half pages of transcript, from which we can glean only that the court allowed an 18-year-old witness—who already had a support person—to testify behind a monitor that entirely blocked defendant’s view of her and vice versa. The court did so to make the witness “more comfortable” because she had become emotional when taking the stand. However, the court did not hear evidence from anyone—medical professionals, for example, or even simply the witness herself— as to the cause and degree of her distress, and the record does not support an implied finding the distress was severe enough to warrant such an invasive accommodation. As I will explain, the trial court’s handling of this situation did not provide a sound basis for depriving Arredondo of his constitutional right."

I'll add to that desription the facts that (1) it's a molestation case, (2) the witnesses were often emotional, and (3) the defendant was sentenced to over 300 years in prison.

There are weighty concerns on both sides.  On the one hand, you definitely want to let the defendant see the critical witnesses against him.  On the other hand, you definitely don't want to make it totally traumatic for witnesses to testify.

The competing views here take a different approach to the appropriate balance.

Check 'em out and see which one comes closer to your own view.

County of San Mateo v. Superior Court (Cal. Ct. App. - July 25, 2017)

Depressing opinion.  Concise holding:

"A 72-foot diseased tree fell on a sleeping child’s tent pitched in a campground that is located within a vast public wilderness park. The park’s owner, the County of San Mateo, contends it is immune as a matter of law for this allegedly dangerous condition of its property under Government Code section 831.2, commonly referred to as the “natural condition immunity.” It states: “Neither a public entity nor a public employee is liable for an injury caused by a natural condition of any unimproved public property, including but not limited to any natural condition of any lake, stream, bay, river or beach.”1 (See § 831.2.)

The trial court denied the County’s motion for summary judgment under section 831.2, and we now deny the County’s petition for a writ of mandate seeking to overturn the summary judgment ruling. We conclude there are triable issues of fact as to whether the property here was “unimproved.” . . .

On July 25, 2012, Zachary Rowe and his family were camping in San Mateo County Memorial Park, where they occupied campsite D-1 of Sequoia Flat Campground. Twenty feet from Zachary’s tent stood a 72-foot, diseased tanoak tree suffering from a species of fungus called Armillaria that caused it to fail. In the early morning hours, while Zachary was sleeping, the massive tree fell on Zachary’s tent, crushing him and inflicting catastrophic injuries. .  . .

San Mateo County Memorial Park is property owned by San Mateo County, consisting of approximately 499 wooded acres, with trails. Its campsites are located in a heavily wooded campground area, portions of which were cleared of trees. The campground area contains dozens of campsites as well as amenities such as paved roads, telephones, restrooms (with electricity, sinks and flush toilets), showers, dedicated parking areas, a dumping station and a store. . . .

A professional land surveyor determined there were 34 man-made improvements within 126 feet of where the tree stood, including roadways, bumper logs (which are large trees laid on the ground to keep cars out of camping areas), restrooms, picnic tables, bear boxes, fire pits/barbeque pits, road signs, conductor poles with transformers and a parking bollard. According to the survey map he prepared, which is reproduced as Figure 2 in the appendix to this opinion, the man-made objects closest to the tree were a picnic table and a fire pit in a neighboring campsite, both some 13 feet away from the tree. The map depicts many man-made objects within the tree’s 72-foot striking distance, including a power line within 37 feet at its closest point; two access roads, one of which was 22 feet away at its closest point and the other 61 feet away; and various amenities located in Zachary’s campsite and several neighboring ones. Also close by, but not within the tree’s 72-foot striking distance, were two restrooms, one 113 feet away from the tree, and the other 126 feet away."

Given all this, it's somewhat surprising that the Court of Appeal decided to hear the writ.

In Re A.C. (Cal. Ct. App. - July 21, 2017)

Your usual parental termination appeal typically involves horrible facts.  If there's a jurisdictional dispute, it often involves technical stuff about ICWA (Indian Child Welfare Act) notice.

But this one's different.  And I learned a couple of interesting things that I definitely didn't know previously.

For one thing, this one involves notice not to an Indian tribe, but to Mexico.  Okay.  Didn't know about such a process.  Makes sense.  Just never seen it before.  Since the mother (and children) had lived in Mexico for a fair piece, you want to make sure that Mexico hadn't already entered any orders about the kids or already established jurisdiction.  K.

But here's another thing I didn't know -- and was somewhat surprised to see.  I'm used to seeing ICWA notices, and they're almost invariably sent by mail.  But here, the court communicates (or at least attempts to communicate) with Mexican authorities by e-mail.  I didn't know we did that.

Mind you, it doesn't work.  They never respond.  And that's only after Mexican authorities refuse to pick up the phone after multiple calls.  But the concept of a judge firing off "official" e-mails sent to judges from other countries was definitely something I hadn't seen before.

One last thing.  I've obviously read thousands of cases involving deportations, including but not limited to parents (and children) deported to Mexico.  But I'm pretty confident that this is the first opinion I've ever read involving a parent who was deported from Mexico to the United States.

I'm sure that makes sense as well.  I'm sure there are some U.S. citizens in Mexico that Mexico doesn't want.  So, of course, Mexico has the right to kick them out.

I've just never seen it before.

You've got your usual depressing facts, of course.  Though at least here the intervention by the authorities -- or at least the U.S. authorities -- was fairly prompt:

"On May 21, 2015, Mother, who was born in California, was deported from Mexico to the United States at the San Ysidro Port of Entry. Her two sons, A.C. and E.C., were with her when San Diego Police Department officers responded to a call regarding a female (Mother) who might be unfit to care for her two children. On their arrival, the officers found A.C., then six years old, and E.C., then 15 months old, sitting on the ground with Mother. Mother appeared manic and confused about her detention and expressed irrational beliefs (e.g., she could communicate telepathically). Based on their belief Mother was gravely disabled and unable to care for herself and her two children, the officers detained Mother pursuant to Welfare and Institutions Code section 5150 and transported her to a San Diego County mental health facility for evaluation."

Still.  Deportations from Mexico.  Definitely not used to seeing that.

In Re R.T. (Cal. Supreme Ct. - July 20, 2017)

This seems fine.  I agree with the California Supreme Court that the relevant statute allows kids to be taken away from their parents even if the parent isn't at fault.  The text of the statute sort of says that, and the legislative history makes it clear.  If the kid's in danger, it doesn't matter whether the danger is "because" of the parent.  The state can intervene.

Okay.  That's indeed what the statute says.

But am I really the only one troubled by the consequences -- e.g., the constitutionality -- of such a statutory regime?

That was principally why the one Court of Appeal opinion below held (contrary to today's opinion) that the statute must require fault.  Because to do otherwise, the Court of Appeal thought, might well violate the Due Process Clause.  Can you really take a kid away from the parent when the parent isn't at all at fault?

Let's be clear.  That's precisely what's at stake here.  The minor at issue here is definitely a problem.  She's disobedient, has already had two kids of her own (at 17), throws things at her mother, stays out all night, etc.  Yeah, we want to stop that.

But it's not like the parent doesn't care.  Or doesn't try.  Her hardest, even.  From everything we read in today's opinion, she's trying super hard.  Doing all the things that we'd try as parents.  It's just not working.  (And those of us with children certainly can understand.  We don't have an 100% success rate at everything we try to instill in our children.  Even with respect to the most basic stuff.)

But the California Supreme Court says that doesn't matter.  You can still have your kid taken away from you -- and be declared an "unfit" parent -- even if it's in no way, shape or form your fault.

That's troubling, no?

At least to me.  Apparently not so much to the California Supreme Court.  Because the Court says very very little about that point.  Indeed, it's entire argument in that regard consists of a single paragraph at the end of the opinion.  When, in the context of distinguishing a contrary lower court opinion, the Court basically just concludes that the Due Process Clause isn't violated by taking a kid away from her parents since the statutory regime "includes many subsequent safeguards to ensure that parental rights and authority will be restricted only to the extent necessary for the child‘s safety and welfare" and "is a remarkable system of checks and balances."

That sentiment is small solace, I'd think, to any parent who had their kid taken away from them through what everyone concedes is totally no fault of their own.  As it'd be similarly small solace, I'd imagine, if any of the justices had their own children taken away from them in similar settings.

Which is not to say that I don't get the underlying motivation.  The kid's in trouble.  We need -- or at least want -- to do something.  So even if the parent's not at fault, we may well want to take the kid away.  Because that at least has the possibility of working.

But remember a couple of things.  The first of which is that taking the kid away is hardly a panacea.  Maybe if the results of the juvenile dependency system were uniformly positive I'd take a different view.  But they're not.  A lot of times, kids do worse in that system than with their parents.  And I'd imagine that's even more likely when, as here, the parent is totally trying and is not at all at fault for the minor's delinquency.  So don't for a second think that putting a kid in the "system" means that we are going to solve the problem.  Sometimes it stays the same.  Sometimes it gets even worse.  And the price for all this "progress" (or lack thereof) is inevitably the disruption (or destruction) of a basic and fundamental value:  the relationship between a parent and her child.

And, yes, the system contains a lot of checks and balances.  But, at least until today, one of the most basic of those checks and balances was that kids generally only get taken away when the parent is at fault.  I've read thousands of these cases, and when the kids get taken away, almost invariably, there's parental neglect (drug abuse, violence, etc.) that's a critical component of making that undeniably sad result morally palatable.  Take that way -- take away the need for fault -- and you're taking way what I'd have thought before today was one of the most fundamental of the relevant balances.

Now, I understand that we're trying to do what's best for the kid.  And that's a critical goal.  I too want to try to make every child reach his or her full potential.

But we've got to balance that between (1) the reality that, lots of times, we can't do better than the parents (and, I suspect, there's a darn good chance that the "system" will do no better for the child than her mother has done here), and (2) the devastating consequences to a mother when a child is forcibly removed from her by the state, without her consent, in circumstances in which even the state admits that the mother has done nothing wrong.

Those considerations, at least to me, are worth perhaps a little more than a paragraph of thought and brief platitudes about the "remarkable system of checks and balances" that is the existing dependency regime.

So I think, in short, that I'd take the Due Process argument a bit more seriously, or at least give it more weight, than I think the Court does here.  And maybe even expressly hold that it creates an outside limit on when the state can take children away when, as here, there's no fault at all by the parents.  Unless the state can show that it's likely to do a better job, with some reason to believe that it's efforts at discipline will be more effective than the parent's, I'm super reluctant to say that the Due Process Clause permits the government to take away someone's kid when the parent has done the exact same things that every single one of us would have done under the circumstances.

Food for thought.

People v. Roberts (Cal. Ct. App. - July 18, 2017)

Some things seem common, some things seem strange.

"Sharkey, who had ties to the West Coast Crips (WCC) street gang, was playing dice in downtown San Diego when Roberts, known as "Scrappy," shot her twice in the chest."  Do people really still play dice on the street these days?  And who shoots someone during a dice game for no reason?

"Sharkey claimed that Roberts pointed a gun at her face and said something to the effect of, "[k]eep my name out of your mouth." Roberts's act of pointing the gun at her infuriated Sharkey, who felt extremely disrespected by the act."  Really?!  You feel "disrespected" when someone points a gun at your face?  What an unusual reaction.  (Sarcasm alert)

Lewis v. Superior Court (Cal. Supreme Ct. - July 17, 2017)

I wonder why it is that I find myself agreeing with the California Supreme Court more than perhaps many other courts?  Similar disposition to the justices?  More cases that the court accepts for review that are important and yet often unanimous?  Some other reason?

(Or maybe the predicate's  untrue.  It's distinctly possible that I agree with an equal -- or greater -- number of Ninth Circuit cases, or cases from other courts, but simply read more opinions from those tribunals.)

Regardless, today's opinion is another one that seems spot on to me.  There's probably a fairly strong privacy interest in giving the authorities access to CURES (drug prescription) data.  But there's also a good reason for doing so -- to prevent drug abuse.  So the present regime is permissible.

Works for me.  Even though the ACLU would require more.

U.S. v. Sierra Pacific Industries (9th Cir. - July 13, 2017)

"Nonetheless, this case is a cautionary tale about the possible pitfalls of judges engaging in social media activity relating to pending cases, and we reiterate the importance of maintaining the appearance of propriety both on and off the bench."

Well, I'm not exactly sure that it's an entirely cautionary tale, since the Ninth Circuit affirms the decision below notwithstanding the judge's (alleged) Twitter account and "forwarded" tweets about the case he was in the midst of adjudicating.

(I say "alleged" because the judge at issue doesn't sign his actual name to the Twitter account, so it's just "alleged" that it's his.)

Snyder & Assocs Aquisitions v. U.S. (9th Cir. - July 13, 2017)

The Ninth Circuit says today, in full:

"Plaintiffs-Appellants’ petition for panel rehearing (Dkt. # 38) is GRANTED. The opinion filed June 16, 2017, is amended as follows: (1) on page two, “millions of plaintiffs’ dollars” is replaced with “plaintiffs’ money”; (2) on page two, “into bankruptcy” is replaced with “out of business”; and (3) all uses of the word “privileges” on pages two, six, fourteen, and twenty are replaced with “authorization.” No further petitions for panel rehearing or rehearing en banc will be considered."

I'm not really sure that the money devoted by plaintiff-appellant to filing that motion was really worth it in retrospect, eh?

Association for LA Deputy Sheriffs v. Superior Court (Cal. Ct. App. - July 11, 2017)

This opinion should be taken up by the California Supreme Court.

It's a split opinion, with a dissent.  The deciding vote is cast (and the majority opinion written) by a superior court judge sitting by designation.  The underlying issue is an important one with widespread impact:  Whether the LA Sheriff's Department is allowed to tell prosecutors the names of officers in the department potentially guilty of serious misconduct, which in turn will help prosecutors to fulfill their Brady and related obligations in criminal cases.

The Court of Appeal says no; that this policy is impermissible.  Prosecutors, the Court of Appeal holds, not only have no duty to obtain this information, but the LASD cannot even voluntarily provide it to prosecutors.  Prosecutors instead have to file a motion.  A motion -- to be clear -- by one arm of the government (and prosecution) against another.

I'm skeptical of the result.  Very skeptical.  But even if the Court of Appeal is right on the merits, it's a critical issue, and one that should be decided by the California Supremes.

Stone Creek v. Omnia Italian Design (9th Cir. - July 11, 2017)

Tons of fun stuff in this tiny little trademark dispute.  Regarding, as Judge McKeown's opinion puts it (tongue in cheek), "the high-stakes world of furniture sales."

Some snippets:

"The facts are somewhat unusual: the alleged infringer, leather furniture manufacturer Omnia Italian Design, Inc. (“Omnia”), admits that it blatantly copied and began selling the same goods branded with the mark of its (now ex) business partner, retail furniture company Stone Creek, Inc. (“Stone Creek”)."

Well now.  That should make the case relatively easy, no?

Actually, no.  Since the district court below found in favor of the defendant.  Albeit in a decision reversed by today's Ninth Circuit opinion.

Another:

"To its credit, Omnia was candid. In an email from the Vice President of Sales, Omnia unequivocally admitted to selling furniture under the STONE CREEK mark. In a move not recommended when litigation is certainly impending, the email observed: 'In this day of internet shopping and surfing, it is unfortunate and probably a nuisance for you that your stores are receiving inquiries regarding these products due to the similar name.'”

Yeah.  Kind of unusual to see that type of honesty.  Refreshing.  But given that the honest party loses in the Ninth Circuit, that's not likely to encourage its repetition, I imagine.

Read the whole thing for a romping good time.  (If you're heavily into IP, anyway.)

Get Those Cases Out (9th Cir. - July 10, 2017)

The summer often sees a broad dump of published opinions.  Some may say that's a result of the excitement of working had over the summer.  Doubtful, for sure.  Others may more plausibly claim that the influx of new law clerks and the outflow of old clerks means that there's an impetus to finally get those lingering opinions done before the old clerks leave.

Either way, today sees not one, not two, not three, but eight different published opinions issued by the Ninth Circuit.  Opinions that run the gamut from the disputed ownership of paintings looted by the Nazis, whether used car dealers have to make their vehicles available for test drives by the disabled, and doctrinal issues involving forum non conveniens,(essentially) tribal sovereign immunity, and quasi-judicial absolute immunity.  Weighty stuff all around.  All alongside more pedestrian matters like whether a particular plaintiff is entitled to social security disability payments.

So there's something for everyone today.  Take your pick and read the one that you think might excite you the most.  It's a grab-bag Monday.

Espejo v. Copley Press (Cal. Ct. App. - July 7, 2017)

Darn it, darn it, darn it.  I was born in the totally wrong era.

The Court of Appeal decides a case today involving a class action brought against the Copley Press, which publishes the San Diego Union Tribune, in which the plaintiffs claimed -- and won -- that the U-T's newspaper delivery people were employees rather than independent contractors.  The Court of Appeal reverses a tiny bit of that victory and remands, but in large part, the merits are affirmed.

Which bums me out, because I too was an alleged "independent contractor" in my youth.  Albeit a newspaper delivery person for the Washington Post back in Virginia.  Back in the days -- and this demonstrates my advanced age -- in which we delivered newspapers by walking door to door, or by riding our bikes, rather than by driving our vehicles.  (Not that my brother and I were old enough to drive anyway.  We were probably twelve or fourteen at the time.)

I'd have been part of a successful class action!  Maybe, anyway.  I could definitely have used the money at the time.  Especially since I was the worst -- literally, the worst -- at the actual "collecting the subscription dues" part of the job.  I bet I worked for a year, getting up super early, and made a total of $10.  Because I had to pay for the papers, I had to collect from the subscribers, and to the degree there was any shortfall in the latter, that was my problem, not the Washington Post's.

Memories of a misspent youth in Virginia.

Padilla-Ramirez v. Bible (9th Cir - July 6, 2017)

Today's Ninth Circuit opinion doesn't necessarily sound like a typical Judge Wallace opinion.

Sure, it reaches the result you'd expect from Judge Wallace.  It's a close immigration case involving a guy who's got a decent argument -- indeed, one that the asylum officer thought was right -- that he'll be tortured or killed if he's sent back to El Salvador.  The guy has nonetheless been kept in detention (read: prison) with no bond hearing, and he thinks that's wrong.  The Second Circuit agrees with him, and says that people like this are entitled to a shot to obtain bond.  But Judge Wallace doesn't think so, and authors and opinion explaining why.

The Second Circuit is left of center, and Judge Wallace most definitely is not.  Understandable.  And with Judge Bybee also on the panel, the result isn't all that surprising.

But the language somewhat is.

This is not a strident, take-no-prisoners opinion.  A type that Judge Wallace has definitely authored on multiple occasions in the past.  Today's opinion is instead downright moderate, at least in tone.  Take a look at Part III.D. of the opinion for a classic example in this regard.  There's tons of stuff in there about how the panel knows it's (allegedly reluctantly) creating a circuit split by disagreeing with the Second Circuit, how immigration law in particular is supposed to be uniform, how it reaches its result an understanding that the Supreme Court might want to take the case up to make the law in all the circuits the same, etc.

That's not what you see in most opinions by Judge Wallace.  Trust me.

Some might argue that, perhaps, Judge Wallace has somewhat mellowed with time.  Maybe that's true, maybe -- quite possibly -- that's not.

Personally, I think the better explanation is found by looking at the third name on the panel.  One who joins Judge Wallace's opinion in full.  Judge McKeown.

Part III.D. sounds exactly like something that she'd write.  Not that I'm saying that she did.  But on occasion, to attempt to persuade another member of the panel, you write stuff that you think will get that person on board.  Stuff that you might not otherwise say if someone else was on your panel.  On occasion even adopting as your own suggestions from that other judge that you'd normally reject (or not have thought worth mentioning) on your own.

I think it quite plausible that the tone of today's opinion is explained in part by such a dynamic.

Which sometimes makes for a much more powerful (and/or palatable) opinion than would otherwise have been issued by a single judge acting on his own.

Petrocelli v. Baker (9th Cir. - July 5, 2017)

It's an ugly case.  You can see why the jury sentenced Mr. Petrocelli to death:

"On March 29, 1982, Petrocelli went on a test drive of a Volkswagen pickup truck with James Wilson, a used car salesman, in Reno, Nevada. At some point during that test drive, Petrocelli shot and killed Wilson. . . .

Nearly a year before killing Wilson, in May 1981, Petrocelli had pleaded guilty in Washington State to kidnaping his girlfriend, Melanie Barker. He had received a suspended sentence conditioned on his completion of a drug treatment program. Petrocelli absconded from the treatment program twice and never completed it. Petrocelli shot and killed Barker in Washington State in October 1981, five months before he killed Wilson in Nevada."

Bad facts for the defendant, for sure.

But the panel unanimously reverses the death sentence due to the admission of an expert's testimony at the penalty phase.  And this is not an isolated occurrence.  As the penultimate paragraph of Judge Fletcher's opinion recounts:

"We have encountered Dr. Gerow before. He testified for the prosecution in Sechrest in very much the same manner he testified for the prosecution in the case before us. Gerow testified that Sechrest “was an incurable sociopath” who was “extremely dangerous and could not be rehabilitated.” Sechrest, 549 F.3d at 813. We held in Sechrest that the combined effect of Gerow’s testimony and an instruction identical to Instruction 5 “had a substantial influence on the jury’s decision to sentence Sechrest to death.” Id. We similarly conclude, in this case, that Gerow’s improperly admitted testimony, understood in the light of Jury Instruction 5, “had [a] substantial and injurious effect or influence in determining the jury’s verdict.”"

Judge Christen's position is perhaps even stronger than the majority.  She says in her concurrence:

"I agree that Petrocelli’s death sentence must be reversed. I write separately because, in my view, even if the State could show that the prosecutor’s tactics had not prejudiced the jury’s verdict, Petrocelli’s case is one of the very few in which deliberate prosecutorial misconduct and egregious trial errors warrant habeas relief. See Brecht v. Abrahamson, 507 U.S. 619, 638 n.9 (1993) (stating that a deliberate and especially egregious trial error, or one that is combined with a pattern of prosecutorial misconduct, might warrant habeas relief, even if the jury’s verdict is not substantially influenced). Brecht’s footnote nine is rarely employed, but the Fifth and Seventh Circuits have each relied on it one time in cases where an error (or errors) did not easily fit into either the “structural error” or “trial error” category. The errors in Petrocelli’s case were equally pervasive, flouted Supreme Court authority, and undermined the integrity of the criminal justice process."

Strong stuff.