Keen v. City of Manhattan Beach (Cal. Ct. App. - April 6, 2022)

Unlike some people, I don't mind Justice Wiley's short, staccato style. Sometimes -- many times, even -- I affirmatively like it.

But the danger is that, sometimes, brevity is both under- and/or overemployed. The last paragraph of this opinion is one of those times.

The Court of Appeal holds that the City of Manhattan Beach can't prohibit short-term rentals because it didn't get approval of the Coastal Commission. Fair enough. Justice Wiley explains why in a concise 10-page opinion.

But here's the last paragraph, in its entirety:

"The City argues Keen’s reliance on Kracke v. City of Santa Barbara (2021) 63 Cal.App.5th 1089 is misplaced. Our analysis does not involve Kracke."

That's ending on a low note, IMHO.

On the one hand, if a party cites a case and you think it's distinguishable, you've got to explain -- or, in my view, should at least explain -- why. You owe that to the parties and/or the lower courts. Saying,  iessence, essentially, "Our case is different" doesn't cut it. Especially if you don't even explain the facts or holding of that other case. So, in one way, this paragraph underexplains.

Alternately, the paragraph's entirely unnecessary. Justice Wiley's right -- though I had to read the sentence three times (and think about it a bit ) to figure out why. (And also figured it out, truthfully, only after going back and reading Kracke.) That earlier case -- which basically held something similar to what the Court of Appeal holds today -- is an argument (if anything) for today's holding. But Justice Wiley doesn't feel like using it; which, after reading the case, I understand, because technically, although the cases reach the same result (i.e., both cities ultimately couldn't ban short term rentals), they reached that result for different reasons and based on different legal arguments.

Fair enough. So if you're not relying on a case, no reason to mention it. At all. You're under no duty to explain away every case that goes the way you end up and explain why you're not using it. And doing so would end the opinion on a whimper (rather than a bang) anyway. Especially when you're not even doing an explanation of the case and are simply saying "Yeah, we're not citing that case".

After all, the opinion doesn't rely on a ton of cases: Miranda, Marbury, Dred Scott, etc. No need to mention them either. Ditto for Kracke. Just leave it out, particularly if you're not going to explain it.

People v. Salinas (Cal. Ct. App. - April 4, 2022)

Justice Baker's opinion begins with a fairly powerful summary of the holding of the case:

"At defendant and appellant Salvador Salinas’s (defendant’s) criminal trial, the prosecution used five of the eight peremptory challenges it exercised to remove Black women from the jury panel—including a prospective juror who was a sales manager, a crime victim herself, the grandchild of a retired police officer, a friend or acquaintance of “a lot” of law enforcement officers, and a prior member of a criminal jury in another case that reached a verdict."

Yeah, that's a problem. You can see why the conviction gets reversed.

Personally, I was less influenced than Justice Baker was with the exclusion of the four other Black women (though I totally understand where he's coming from). Were I the prosecutor, based on what I've read in the opinion based upon their answers in voir dire, I might well have bounced some -- or all -- of these four women myself, without even knowing what race/gender they were. Some of those answers made me think that these potential jurors might well be a bit more . . . critical than prosecutors are typically looking for in a juror. (Not that that's necessarily normatively right, but it's descriptively very true.)

But I'm totally on board for the fifth Black woman juror. I see absolutely zero reason why she should have been bounced -- or even (apart from her race and gender) why a prosecutor would think that she'd be pro-defendant. That one, I agree, is a Batson/Wheeler violation.

Justice Baker makes the same point that I'm about to make in a slightly different way, but I think there's something super problematic about the overall structure of the whole peremptory challenge thing in the first place. The reality is that racism and gender stereotypes, wholly apart from being sometimes conscious and deliberate, are fairly invasive. Someone can look at two entirely similar people/jurors and while one of them -- the white/majority/male one -- might seem "fine, even though a bit overly confident for my own tastes," it's distinctly possible for that same person to view a quite-similarly-situated minority/female juror (or person) as "aggressive" or "uppity" or "hostile". That's not saying that you go into voir dire with an intent or desire to bounce all the minority jurors. But to pretend that racism and stereotypes don't play a role in some of the assessments we might make about individual people is, I think, a fair piece naive. It's not the way things necessarily work -- either in academic theory or in practice.

Anyway, they shouldn't have bounced that fifth person. New trial with a more representative jury (hopefully).

Quintero v. Weinkauf (Cal. Ct. App. - April 4, 2022)

Today's opinion presents itself as your typical stalking case, and in many respects, it is one -- with the notable exception that it's a civil case, not a criminal one. The basic facts:

"The complaint alleged that after Quintero and Weinkauf ended their romantic relationship, Weinkauf shot arrows and discharged a firearm through the windows of Quintero’s business. It further alleged that Weinkauf committed these acts in disguise and under cover of darkness, but Quintero was ultimately able to identify him as the perpetrator."

Yeah, that's not good, and yeah, those are torts.

The jury ultimately finds in favor of Ms. Quintero and awards her compensatory damages of $1.3 million, with another $6,000 in punitive damages (plus a little under $1 million in costs and fees) added on top of that.

Your stalkers usually aren't rich, but her, Mr. Weinkauf isn't exactly poor either; his net worth at trial is $1.5 million. (Though, clearly, not so much after the verdict.)

And in the other surprise, you don't learn until nearly the very end of the opinion -- with reference to some "MCLE" evidence -- that Mr. Weinkauf . . . is an attorney.

Or at least was, until he was disbarred.

Artus v. Gramercy Towers Condo. Ass'n (Cal. Ct. App. - March 30, 2022)

You can feel the love in this one. And when there's no love, you definitely feel that too.

Division Two of the First repeatedly displays its love for the trial judge, Judge Kahn (from SF). The first reference to Judge Kahn says: "As will be seen, it was Judge Kahn, a most experienced Superior Court judge, who presided over the case through its conclusion . . . ." And the compliments only get stronger thereafter. (To take but one representative example: "[O]ne reading that transcript—with Judge Kahn’s questions, his comments, and his colloquy with counsel—cannot but be impressed by the depth and breadth of Judge Kahn’s understanding of the litigation.")

By contrast, the panel's definitely not feeling the love for either of the lawyers for the parties on appeal. Plaintiff's attorneys first get mentioned this way: "Passing over the fact that Dr. Artus’s brief misrepresents the record in many respects, her arguments fall way short, as they do little, if anything, more than regurgitate and reassert the same arguments thoroughly analyzed—and rejected—by Judge Kahn in his analysis." And it only gets worse from there; e.g., "Dr. Artus makes two other arguments, numbered six and seven . . . . Neither argument merits discussion. The third argument, all of five lines, has no support. And the fourth argument essentially asks us to change some language in the earlier opinion by our colleagues in Division One. It is most inappropriate."

Defendant's attorneys don't exactly feel the love either. Here's how they get introduced to the reader: "Cross-appealing Judge Kahn’s denial of attorney fees to it, GTCA has filed a 22-page opening brief that has an introduction, a statement of facts and procedural history, and fewer than 12 pages described as “discussion,” fewer than two pages of which could even be considered argument." Not exactly a compliment on the brief, eh? 

Lest that be all, the panel continues: "And what might be called the argument that follows [ouch!] consists of these three brief paragraphs: [Quotes Paragraphs] That is essentially it. It is unpersuasive, as it utterly fails to come to grips with Judge Kahn’s detailed analysis."

This is one of those opinions where the panel most assuredly lets you know how they feel.

Ross v. Davis (9th Cir. - March 28, 2022)

It's a federal habeas death penalty case.

The murder occurred in 1982 -- forty years ago.

The California Supreme Court affirmed the conviction and sentence in 1995, and the federal habeas petition was filed in 1996. Both of these events were over a quarter century ago.

The district court denied the habeas petition in 1997, half a decade ago.

The Ninth Circuit finally adjudicates the case -- and affirms -- today.

In re Bailey (Cal. Ct. App. - March 28, 2022)

When the government decides whether or not to terminate your welfare benefits, the Due Process Clause requires the state to provide an in-person hearing in which you can present your case. So held the United States Supreme Court a half century ago.

When the government decides whether or not to let you out on prison on parole, the Due Process Clause does not require the state to provide an in-person hearing in which you can present your case. So holds the California Court of Appeal today.

And, the Court of Appeal holds, you've got no statutory right to such an in-person hearing either, even though the electorate granted eligible prisoners the right to parole consideration. "Parole consideration" under that proposition doesn't necessarily mean the same "parole consideration" that prisoners ordinarily receive. The state can instead do what the voters intended by simply letting you present your case in writing, without actually hearing you speak.

Such is the law as it stands today.

Cleveland v. Taft Union High School Dist. (Cal. Ct. App. - March 25, 2022)

What first caught my attention in this opinion was the caption: Cleveland v. Taft Union High School District.

It reminded me of the relevant presidents: Cleveland and Taft. Who weren't separated all that far apart, after all. Indeed, back in the day (e.g., 17 years ago), there was a television documentary series about the various presidents, and episode five was entitled . . . "Cleveland to Taft". Neat.

The underlying facts of the opinion, by contrast, involve a serious tragedy. A 16-year old high school student with a history of being bullied seriously injures another high school student by shooting him in the stomach with a shotgun. A jury finds the school district 54 percent responsible by failing to adequately respond to a ton of warnings that the shooter was at risk of doing precisely what he did. The school district's overall liability is around $2 million.

The Court of Appeal affirms.

This kind of stuff has got to be taken seriously. For a ton of reasons.

Perhaps the least of which is because school districts might well be spanked with liability if they don't.

Curtain Maritime Corp. v. Pacific Dredge & Const. (Cal. Ct. App. - March 22, 2022)

This case comes out the way I thought it would, but not for the reasons I anticipated.

The underlying facts aren't particularly relevant (unless you're particularly interested in dredging and/or the requirements of the federal Jones Act); instead, it's really just the procedural history at stake. Plaintiff files a lawsuit, defendant files an anti-SLAPP motion, the trial court denies the motion, defendant files an appeal, and then plaintiff dismisses the lawsuit and claims (given that dismissal) that the appeal is moot.

The Court of Appeal holds that the appeal isn't moot, and that seems totally correct. Defendant wants its attorney's fees, and it only gets 'em if it wins its appeal and shows that the anti-SLAPP motion should have been granted. Since a potential fee recovery is at stake, the case isn't moot. Spot on.

But that's not where the Court of Appeal goes.

Instead, Justice McConnell's opinion says that because there was an appeal, the case was automatically stayed, and the trial court "lacked jurisdiction' to dismiss the case in the first place.

Maybe that's technically correct. Though, to be honest, I think there's a huge difference between that holding and the sole case that the Court of Appeal relies upon for that holding -- a case that says that after the filing of an appeal, there's no jurisdiction to hold a trial on the merits. There's a huge difference between having a trial while the case is on appeal and simply dismissing a case. Generally, you get to dismiss a lawsuit -- with prejudice, anyway -- whenever you want. To hold that you can't dismiss a case while the matter's on appeal seems fairly revolutionary, no? Since I know tons of cases that, in fact, got dismissed while the matter was on appeal. Before this opinion, I'd have thought that was perfectly fine. Now, I'm not so sure.

So I agree the case isn't moot. But I'm not a thousand percent sure that this is why. And if it is, it's due to a concept that -- at a minimum -- I hadn't really appreciated previously.

And an important one in cases far beyond the anti-SLAPP context as well.

People v. Edwards (Cal. Ct. App. - March 18, 2022)

This is another classic Justice Wiley opinion, which means that it's (1) short (e.g., eight pages), with (2) tons of clippy, short sentences. A distinctive style.

Sometimes that works. But sometimes, it really doesn't engage at all on the merits, or (potentially) give the parties (or future tribunals) a reasoned basis for coming out the way it does.

This is one of those latter occasions, IMHO.

It's another one of those "You violated my Confrontation Clause rights because you made everyone wear a mask during a global pandemic" cases. It comes out the same way that nearly all of them -- and all of them in California -- does; namely, the argument is rejected. For understandable reasons, and ones that Justice Wiley articulates in his inimitable style. (For example: "A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion.")

But sometimes, a decision to be concise is also a decision to give incredibly insufficient shift to complex -- and potentially meritorious -- arguments on the other side.

This is one of those occasions.

I've written about this briefly previously, about one of the other California criminal face mask Confrontation Clause opinions. The best argument, in my view, is that while it's totally fine to compel witnesses to wear face masks during COVID given the risks of transmission, there's very little, if any, argument as to why those face masks shouldn't be transparent. Such masks undoubtedly exist, and have existed for some time. Using those masks would solve the problem; that way, the Confrontation Clause would be satisfied -- as well as its underlying (and important) purpose (e.g., allowing the jury to more accurately judge credibility, including but not limited to helping to ensure that innocent people are not sentenced to prison) -- while simultaneously preventing transmission of a potentially deadly disease.

In short, it's a simple, effective solution to the problem.

The defendant and his counsel raise this precise point in the present case. And here's the entirety of what Justice Wiley has to say about it:

"Edwards says the trial court instead could have ordered 'clear masks' or use of 'a face shield with a cloth drape along the bottom.' Edwards offered no evidence an objective authority appraised these alternatives to be effective in combatting the disease’s spread."

With respect: this is an incredibly insufficient answer to the argument.

Let's just take the "clear mask" part. There's zero evidence -- or even intuition -- that clear masks are any less effective than opaque masks, much less that they're any less effective than the crappy, loose fitting cloth masks that trial courts routinely allow people to wear. And since when has the standard been that you're required to establish evidence from an "objective authority" (e.g., a government official) before something that's facially obvious gets accepted as true? Moreover, even if that's the standard (and it's not), there's ample evidence that such face masks are equally effective; indeed, are much more effective than tons of the existing masks on the market (here's an example of a particularly good one, I suspect).

Dispensing with this argument with the single, wholly inadequate sentence (IMHO) of Justice Wiley's opinion gives neither that legal contention nor the defendant (and his lawyer) the respect and reasoned attention they deserve.

Which sometimes happens when you're way too much in a rush to dispense with arguments in a concise and ostensibly efficient fashion.

Plus, I gotta say, there's also a sentiment underlying the opinion that's (1) totally understandable, but (2) at some level, profoundly troubling.

I understand that at stake is a global pandemic that's killed and seriously injured a ton of people. Indeed, I'm extraordinarily sympathetic with that view. Truly.

But Justice Wiley's opinion not only recites (powerfully) that reality, but also quotes Jefferson to argue for its import. Here's the part of the opinion I'm talking about, in which Justice Wiley writes:

"A mask covering the nose and mouth undeniably impairs jurors’ ability to see a witness’s face to a degree. Likewise it is undeniable that judges must not allow a jury trial to spread a deadly contagion. The words of Thomas Jefferson bear weight. “A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means.” (quoted in Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials (5th ed. 2006) p. 66.)"

With respect: That sentiment doesn't belong in a judicial opinion. Not this one, and not any one.

We're talking about the Confrontation Clause. A constitutional requirement. Part of the Constitution. It's not optional. It doesn't just apply in peacetime. It doesn't get dispensed with in a pandemic. It's written in the Constitution precisely because we think it's a critical liberty, and precisely because we're worried that, in a crisis, policymakers might be inclined to dispense with it. It's not just "written law". It's the foundation of American democracy. It's what and who we are. Period.

Maybe -- and even then, I'm only saying maybe -- Jefferson might be right if literally the existence of our Republic was at stake and that only the violation of a particular liberty could save it. But that's very much not the case here; COVID kills people, but in no universe does it end American democracy. Ditto for wearing a transparent (as opposed to opaque) mask. Indeed, the real threat to liberty -- borne out in an ample series of examples throughout history -- is that, in times of crisis, both politicians and even some judges are willing to sometimes dispense with the Constitution (or ignore this "written law") in the service of an ostensibly greater good. (See, e.g., Koramatsu, Ex Parte Milligan, etc.).

I get that Justice Wiley says later in the opinion that the "written law" here isn't violated in any event. Perhaps reasonable minds can disagree on that point. But the argument that, even if it is, we can ignore the Constitution in the present case in the service of a greater good just very much doesn't work for me.

In the end, some arguments deserve actual deep thinking, instead of rapid-fire rejection. This is one of those arguments.

In re Adoption of EB (Cal. Ct. App. - March 16, 2022)

I'm super pleased that the Court of Appeal finally elected to publish this opinion. I'm also somewhat surprised it didn't get more attention when it first came out -- or perhaps I'm missing something.  It seems like a super important case.

Fair warning: For many, this opinion might only seem to solidify California's reputation as a land of "fruits and nuts" -- and, to be clear, I'm talking about its people, not its produce. But I view it as the opposite.

Justice Raye writes the thing in a little bit of a peculiar fashion (for me, anyway), so I'm going to revise the introduction and statement of facts into an alternative that (I hope) gets the point across a bit more quickly. Here's how I'd have written it:

"Can a child have three parents, if everyone's cool with that? Sure. Why not.

Three people -- Mary, Jim, and Susan -- decided that they wanted to have and raise a child together. Mary, Jim and Susan have been in a committed, polyamorous relationship for 15 years. Logistically, it only takes two to tango and make a kid, so the three decided that Mary and Jim would be the biological parents, but that the three of them would raise the child together. (Technically, only Jim and Mary are married, since -- at least currently -- you can only have one spouse, so the choice of Jim and Mary also made a little bit of legal sense as well. They married back in 2007, back when only opposite sex couples could be married. Susan was part of this troika at the time, and has been ever since.)

So the three parents-to-be write all this down in a written agreement spelling out their mutual desires, and Mary gives birth to the child (Eddie) in May 2019. All three of the parents are present throughout the full labor and delivery process, as well as when (shortly after his birth) Eddie starts suffering complications and gets admitted to the neonatal intensive care unit (NICU). 

After Eddie was (happily) discharged from the hospital, Susan -- who's a university professor -- elected not to teach classes in the summer, and then took a three-month maternity leave in the fall, which gave her a full six months to provide full-time care for Eddie. During those six months, Susan bottle-fed Eddie during the week, comforted him, engaged in age-appropriate play activities, coordinated and took him to doctors’ appointments, and took him to weekly swim lessons and library story time events. When Susan returned to work in January 2020, she went back only part time to allow her more time to care for Eddie. When the COVID pandemic began, all three of the parents began working from home and continued to share equally in parenting Eddie. Like he does with Jim and Mary, Eddie seeks out Susan for comfort, complains to her when he is hungry, and giggles at her efforts to amuse him. Eddie calls Susan “momma.” All three of them jointly discuss and agree upon parenting decisions for Eddie.

From the very beginning, the three parents wanted to formalize their committed co-parenting relationship with Eddie. Not only did they sign a written agreement, but shortly after his birth, the three sought to have Eddie adopted by Susan. California allows children to have three parents, though that's typically when there's a problem with one or more of the original parents. But the statute doesn't require such a problem, so the Susan, Mary and Jim all ask that Susan be added as one of Eddie's parents. The trial judge, however, was dubious, and wanted some cases about letting a third parent into the picture in settings (like this one) where there's not a problem with the first two. Finding none -- or, at least, nothing she liked -- the trial judge denied the request for the adoption. Even though everyone agreed to it and no one opposed it.

Given all that Susan had already done to parent the child, the trial court found (correctly) that Susan was a "presumed parent" under the statute. But the trial court thought that having two good parents was more than enough for anyone, so (barring any problems) there wasn't need for a third, and on that basis denied the consensual adoption.

But that's not the way California rolls. We reverse and remand for the reasons explained below."

I'm certain that Justice Raye would be at least slightly more formal than this, but I've just set forth pretty much everything you need to know about the facts. As well as (in a non-legal way) why the case comes out the way it does.

As far as I can tell, there were no amici who submitted briefs in the case, which is somewhat surprising to me. Or at least none are listed on the caption.

Also, I've made up the names of the parents; Justice Raye uses initials, which gets very confusing at times. Plus, unless I'm mistaken, the only time that Justice Raye mentions the would-be adoptive parent (who I call "Susan"), he refers to her simply as "appellant", rather than using her initials. Which, even beyond being a bit impersonal and clunky, is especially confusing here because the caption says that the only appellant is "M.B.", which is the initials of the biological mother (not the would-be parent). So unless "Mary" and "Susan" both have the initials "M.B.", there's either a mistake somewhere or it's inherently confusing -- maybe both.

Anyway, here's the takeaway: Yes, you can have three parents. At least potentially. Particularly in settings like this one and in which everyone's on board for it.

And, honestly, why not? The more the merrier. If three people want to take on the responsibility to raise a child, hey, more power to 'em.

So maybe it "takes a village" to raise a kid, and if, in that village, there are three particular people who want to mutually take on the primary responsibility, I can only say: (1) That's fine by me, and (2) mazel tov.

Gann v. Acosta (Cal. Ct. App. - March 15, 2022)

I love that this opinion came out today. Even wholly apart from the fact that otherwise, the Ninth Circuit and California appellate courts would have published absolutely nothing today.

It's a riddle in the form of a legal opinion. Or, more accurately, it involves a question about language; in particular, the meaning of a particular term. Here: Step-parent.

We all know, at least loosely, what stepparent means. In its traditional form, you're a kid, your parents get divorced, and your mother or father marries someone one. Stepparent.

Obviously, with modern alternative familial arrangements, things can get complicated. But for present purposes, we don't need to get into any of that.

Let's say that a statute or regulation lets you visit someone who's your "stepparent". (In truth, here, the regulation says that you can't visit a stepparent, but to explain why would require more detail than is presently necessary.) Normally, we would know what that would mean.

But let's figure out if A can visit B in the following hypotheticals. The common facts (to make it simple for now):  A is the child of Mom and Dad, Mom and Dad divorce, and then Mom marries B. Clearly, at this point, B's A's stepparent. That's true (in common parlance) even after A's no longer a minor and no longer living in Mom and B's house. So let's assume that fact for present purposes:  B's an adult and out of the house, but formerly lived with Mom and B.

Hypo 1: Mom and B then divorce. Does B remain A's stepparent?

Hypo 2: Mom dies. Mom and B never divorced, and were living together at B's death. Does B remain A's stepparent?

I'm not sure I know the answers to these questions, honestly. Today's case makes me realize that who we call a "stepparent" -- even in "traditional" settings" -- is pretty darn unclear. Sure, when Mom and B are married, I generally know the answer. And, legally, I know that when Mom dies, it's the equivalent (legally) to a divorce, in that both events sever the marriage.

But I don't know if the answers to Hypos 1 and 2 are both No, or both Yes, or whether the answer to one is different than the other. (I suspect that a "No, then Yes" answer would be more popular than "Yes, but No.")

The case here approximates No. 2. With various complexities; in particular, that the inmate here killed the person I've called "B" in the hypos (e.g., his "Maybe Stepparent"), and currently wants to visit his spouse, but the regulation says you can't have such visits if (inter alia) you killed your stepparent.

I'll leave you in suspense as to whether the Court of Appeal says that B was the inmate's "stepparent" or not. (And you'll be disappointed in the answer regardless, since the opinion simply gives deference to the agency, so doesn't really answer the actual linguistic question of what the word actually mean.)

FHFA v. Saticoy Bay (9th Cir. - March 14, 2022)

Usually, when the Ninth Circuit certifies a question of state law to a state supreme court, it makes sense (or at least arguable sense) to do so, because the law's unclear and it's an important issue. As a result, were I on the relevant state supreme court, I'd almost always agree to answer the certified question.

This, by contrast, is one of those rare cases in which I might be persuaded tell the Ninth Circuit to pound sand and answer the question itself.

The certified question is a concise one: "Under Nevada law, must a series LLC created pursuant to Nev. Rev. Stat. § 86.296 be sued in its own name for a court to obtain jurisdiction over it, or may the master LLC under which the series is created be sued instead?"

As far as I can tell: (1) There's no split in the Nevada appellate courts on this issue, which is one reason (at least traditionally) that state law questions get certified, and (2) The absence of that split -- or, indeed, any prior cases on this precise point -- suggests that this is not an issue that comes up at all frequently, and it's (most definitely) (3) Not a critically important one to the world at large in any event, and in this particular case, (4) As the Ninth Circuit panel admits, not only does the text of the underlying statute seem to give the answer itself, but there also seems to be a Nevada Supreme Court case from last year that already provides a pretty good hint as to what the answer should be. ("The district court held that appellees were not required to name the individual series LLCs as defendants, on the ground that Nev. Rev. Stat. § 86.296(2), by providing that series LLCs “may” be sued in their own name, uses permissive rather than mandatory language. . . . We note that the Nevada Supreme Court recently decided A Cab, LLC v. Murray, 501 P.3d 961 (2021). A Cab, LLC characterizes Nev. Rev. Stat. § 86.296(2) as “provid[ing] a list of optional, but not mandatory, attributes for a Series LLC.” Id. at 977. Although this statement suggests that series LLCs need not be sued in their own names, it does not directly answer the question before us."

I admit that, if the answer seems obvious, the Nevada Supreme Court could simply request briefing and rapidly decide the case in a page or two (or ten).

But I'd also totally understand it if the Nevada Supreme Court instead responded: "Hey, Ninth Circuit, do your own work; don't simply make us do it for you. Come to us with important cases, not penny ante stuff like this."

McDougall v. County of Ventura (9th Cir. - March 8, 2022)

Imagine that a panel with three very conservative, extremely pro-Second Amendment judges writes an opinion in a gun rights case that holds that it's unconstitutional to shut down gun stores for 48 days in the midst of a global pandemic. Imagine further that the author of that selfsame opinion pens a separate concurrence to his own opinion that snarkily tells everyone that his left-leaning colleagues will try to take the case en banc and then mockingly drafts an opinion for them to purportedly make their jobs easier.

What's the chance that opinion gets taken en banc?

Correct. 100%.

In re Marriage of Zucker (Cal. Ct. App. - March 4, 2022)

Divorce cases are always tough, and sometimes reveal disturbing facts that no one in their right mind would want to be made public. But this one is really at one end of the extreme in that regard. For that reason, I super strongly hope that the opinion will be amended at some point to take out some identifying details. If only because the public nature of the facts underlying this particular opinion are brutal to the litigants -- as well as to their children.

The case basically involves whether the prenuptial agreement that the spouses signed is enforceable. The ex-wife claims that it's not because she wasn't in the right mental space when she signed it, and the ex-husband says she was. Because the ex-wife's mental state is at issue, there's got to be at least some level of discussion of those particular details. Understandable.

That said, the opinion uses the full names of the spouses. It even includes the full names of their six children, all of whom are old enough to read -- and several of whom have easily identifiable names (sufficient, for example, for me to look up their Instagram and other social media accounts in around ten seconds). In short, the published opinion enables a reader to learn some incredibly personal details about particular individuals.

And, boy, are those details personal.

Check out just some of 'em:

"The parties met sometime in 1993, when Mark was 33 years old, and Kim was 29. Kim became pregnant in June 1993 and at Mark’s request had an abortion. After Kim became pregnant again in late 1993, Mark told her to terminate the pregnancy, but she refused to do so. Thereafter, in early January 1994, the parties discussed marriage. . . . 

The parties had disparate economic backgrounds. Mark is the cofounder and co-CEO of a hedge fund, [Name of Hedge Fund]. . . . Mark had a net worth of about $10 million and made about $2 million a year.

Kim had a history of psychological troubles. When she was 12, her parents divorced. Kim developed an eating disorder (anorexia), for which she was hospitalized. She attended and graduated from a public high school. After attending UCSD for part of a year . . . . In 1988, after leaving UCSD, Kim admitted herself to the Westwood Psychiatric Hospital for treatment of her eating disorder. After stealing a prescription pad and obtaining medication with it, she was transferred to a locked ward where she was raped at knifepoint. . . .

The PMA contained terms that were very unfavorable to Kim. Kim waived her community property interest; would receive a one-time payment of $10,000 upon moving out of the house; would receive limited spousal support of $6,000 per month, with modest increases; and waived any inheritance rights which would arise from Mark’s death during the marriage. The PMA set forth Kim’s net worth as approximately $242,000 and Mark’s as approximately $5.8 million. . . .

In June 1993, after Kim became pregnant the first time, she and Mark spoke about getting married. Mark spoke to Kim about the “general outlines” of the PMA in June “before she had her first abortion.” They had between five and 10 conversations about Mark’s net worth. He told her he was worth about $10 million to signal to her that he was worried about getting married without a prenuptial agreement.

When Kim told Mark she was pregnant the second time, he told her to have an abortion. They discussed alternatives to marriage, including that Kim would have the baby and they would not get married, or that Kim would have an abortion or put the baby up for adoption. Ultimately, Kim believed her options were to marry Mark with a PMA, to have an abortion, to have the baby and put the child up for adoption, or to raise the child as a single mother.

Kim scheduled an abortion for January 4, 1994, although she did not go through with it. At the time, Kim’s doctor noted that she was “distraught.” . . . About a week after Kim told Mark she did not go through with the abortion, they began to discuss marriage. Mark told her that he would not marry her without a PMA. Mark specified two options if she did not have an abortion. Kim could sign the PMA and Mark would consider, but not commit to, marriage, or Kim could have the baby on her own and Mark would financially support the child."

Let's assume for a moment that Mark and Kim were your parents. Would you want these facts described in a published opinion?! (Would you even want to know about them?) Particularly one that includes your (readily identifiable) name as well in a footnote?

I get that this is a messy divorce -- the spouses each spent seven figures in attorney's fees on it. For that reason, I imagine that the kids already know a fair piece about the background of their parents' marriage -- if only because of that 57 day (!) trial on the validity of the prenup.

But knowing something and having it disseminated to the world in a published opinion are two very different things.

This one might be much better off by deleting last names and taking out the names of the six kids.

Just sayin'.

Sheen v. Wells Fargo Bank (Cal. Supreme Ct. - March 7, 2022)

You can see where all this comes from, no?

Chief Justice Cantil-Sakauye writes the opinion for a unanimous court that says that banks don't have a common law duty to respond to loan modification requests for borrowers. Maybe it's a good idea, maybe it's not, but that issue's really for the Legislature. If lenders and borrowers want to create a contractual relationship, that's fine, and there are (arguable) advantages to leaving 'em to it. If the Legislature wants to create affirmative duties, great, courts will enforce those, but we won't create a noncontractual duty of our own. I get it.

Justice Liu writes a concurring opinion and says, yeah, I agree, but seriously, Legislature, take a hard look at this, because borrowers are often getting hosed and lenders have an incentive to hose 'em. That makes sense too -- though I doubt the Legislature needs much prodding on this front from the courts, honestly. But, still, if that's what you're feeling, sure, feel free to speak out.

Justice Jenkins authors a concurring opinion as well, and this is the only one I'm a bit iffy about. He writes to rationalize his joining today's opinion with an earlier opinion -- back in 2014 -- that he joined when he was on the Court of Appeal that held that lenders do indeed have such a duty; an opinion of which the current opinion expresses disapproval. I get why Justice Jenkins might want to do so, but honestly, I think it's unnecessary. It's not like Justice Jenkins wrote the earlier opinion; he simply joined the thing. Justices do that sometimes, even when they might not be so certain about the result (it's going to be a 2-1 anyway, after all). Plus, that was a while ago, and it's merely one of a plethora of cases that are on a justice's plate on the Court of Appeal. Maybe times have changed. Maybe you thought more deeply about the issue and changed your mind upon further reflection. Maybe (as here) you're a new justice on the California Supreme Court and don't feel like dissenting in one of your first cases on an issue as to which you're pretty much sympatico with the otherwise-unanimous majority opinion anyway. Okay, if you want, I guess you can tell a story about why the one case came out the way it did and today's comes out the other way. But, sometimes, you're just better off leaving the thing be. It's a pretty much unanimous decision either way. Sometimes there's no need to spill a lot of ink on a point that's idiosyncratic anyway.

But, hey, to each their own.

In re Rejuvi Labs (9th Cir. - March 3, 2022)

I don't think I'm confused easily.  Not about legal doctrine, anyway.  But I'm honestly confused about one aspect of this opinion by the Ninth Circuit earlier today.

It's about whether a federal bankruptcy court should recognize a (particularly large) default judgment entered by an Australian tribunal against a U.S. corporation.  The district court refused to recognize the judgment because the Australian court didn't have personal jurisdiction over the defendant, but the Ninth Circuit reverses.

Let's take this in steps.  It's a federal court (bankruptcy) suit, so federal law applies, but federal law says we determine the validity of foreign judgments under the the law of the forum state (here, California).  So California law applies.  Check.

California law says that it doesn't recognize foreign judgments if there's no personal jurisdiction.  Check.

California law then defines what it means by a lack of personal jurisdiction, which is defined as either (1) no jurisdiction under California law (e.g., the Due Process Clause), or (2) no jurisdiction under the law of the forum rendering the judgment; here, Australia.  Got it.  Check.

Today's Ninth Circuit opinion discusses (1) at length, and says that there was jurisdiction here because defendant voluntarily appeared in Australia to try to vacate the default.  That waives jurisdiction, it says, because under California law, you waive jurisdiction if you appear on the merits, instead of just arguing jurisdiction.  And since, here, the defendant didn't just argue jurisdiction, there's waiver, thus jurisdiction.

That's certainly true under California procedure.  But two things.

(1) Is it true under Australian law?  The California statute is binary:  it says no jurisdiction (hence no enforcement) if there's either no jurisdiction in (here) California or (here) Australia.  Presumably we've got to see whether Australia -- or, more particularly, the particular Australian state there -- follows California's distinction between general and special appearances, no?  Yet nowhere in the opinion does it discuss the law of Australia on these points.  Maybe Australia's the same way; they do, it seems, have a procedure for "conditional" appearances.  Maybe defendant didn't make this argument, but I would think we'd at least have to mention it.

(2) Is that really what the California statute means when it says no jurisdiction under California law?  I'm pretty certain that what California mostly (if not entirely) means when it says no jurisdiction under the law of California it means minimum contacts; e.g., International Shoe and the like.  The district court thought that test wasn't satisfied here, and the Ninth Circuit doesn't dispute that fact.

But the Ninth Circuit says that under California procedure, if you don't specially appear, you waive personal jurisdiction.  True.  But does the statute's reference to California law really incorporate the California personal jurisdiction procedural rules?  And, yes, this is an Erie-type of question; sorry to take you back to that troubling first year civil procedure stuff.  With an international twist, no less.

There are lots of procedural things I'm quite confident that the statute doesn't intend to incorporate. For example, in California state court, it's not okay to challenge jurisdiction through a non-California-admitted lawyer, but surely we wouldn't say "Aha!  In Australia, your lawyer wasn't admitted to the California bar when she showed up to challenge jurisdiction, so you thereby consent to jurisdiction under the statute."  It seems at least plausible to me that the California statute says:  "Look, if there's no jurisdiction under minimum contacts in Australia, then we don't recognize the judgment, and we're not incorporating California procedural rules on this issue, just the whole minimum contacts point."  If so, the district court might well be right.  At least we'd have to grapple with that argument.

So, in the end, I'm just looking for a little bit more here.  Before I basically give away this entire U.S. corporation to a particular Australian citizen who was allegedly injured and got a default judgment entered against it, anyway.

LGCY Power v. Superior Court (Cal. Ct. App. - March 1, 2022)

These cases reflect the near-universal rule that state court judges in Utah love Utah's courts (and laws), whereas California state court judges often love California's courts (and laws).  Hence the competing lawsuits -- and multifaceted litigation -- here.

The Court of Appeal ultimately holds that the later-filed California lawsuits can go forward.  Which is fine, and accurately reflects the controlling legal principles.

But, as a practical matter, that Utah case is going to be resolved first.  At which point claim preclusion (and the Full Faith and Credit Clause) will likely apply.

But, yes, Justice Snauffer is correct:  it's not over yet.  So the FFC Clause doesn't apply.

Yet.

People v. Phillips (Cal. Ct. App. - Feb. 28, 2022)

I'm used to seeing 70+ opinions in murder cases -- typically, death penalty cases -- in the California Supreme Court.  It's less common to see them in the Court of Appeal, where (as here) the defendant "merely" receives a life sentence (albeit LWOP).

But Justice Stewart's opinion indeed tops out at 70+ pages here.

Michael Phillips murdered a 75-year old man who was already dying of late-stage lung cancer.  His motive was the classic one:  money.

For the first dozen or so pages of the opinion, Justice Stewart recites the facts of the case in exhaustive detail, but my overall reaction was:  "Seriously?  That's all they've got on the defendant?  This seems like an incredibly shaky case."

But then I read the next ten pages.  At which point I got it.  Yeah, I can totally see why Mr. Phillips was convicted beyond a reasonable doubt.  No eyewitnesses or confession or anything like that; the victim was killed at his home, and his body wasn't discovered for several days.  But the evidence against Mr. Phillips was nonetheless fairly damning.

Deliberately taking the life of another person for money seems a particularly heartless crime.  Sadly, however, that's not a rare motive.

Balistreri v. Balistreri (Cal. Ct. App. - Feb. 24, 2022)

If, perchance, you want to know everything there is to know about how you can modify a trust agreement -- in particular, whether you're required to get the signatures notarized -- this is definitely the opinion for you.

Spoiler alert, though:  Both the majority and the concurrence agree that when the trust instrument says quite clearly that any amendment "shall be . . . acknowledged by a notary public," well, yeah, if you want to get the thing amended, you've got to get those signatures notarized.

Perhaps, especially, when -- as here -- the amendment happens the day before the guy dies.

A fact that's technically irrelevant to the holding but that nonetheless may provide some color as to why the panel (like the trial court) was eminently persuaded that the amendment here was ineffective.

In re Darien R. & S.S. (Cal. Ct. App. - Feb. 24, 2022)

It's a testament to the times in which we live that in both of these published opinions today, (1) a mother is using methamphetamine (sometimes, daily), and (2) we take her kids away, permanently.

In the first case, the mother was horribly addicted to methamphetamine and both she and the father were using it every day.  Three kids.  In the second case, the mother had her parental rights terminated after the police saw her pushing her four-month old baby around in a stroller (1) at midnight, (2) when it was below 50 degrees outside.

Not fantastic parenting.  At all.

You'd hope that cases like this would be incredibly sporadic (or, preferably, non-existent).  Rather than twice in a single day.

And that's only the published ones.

Dow v. Lassen Irrigation Co. (Cal. Ct. App. - Feb. 23, 2022)

Justice Robie's opinion is spot on.  Indeed, I can summarize this 14-page missive in a single paragraph (of my own creation):

"The watermaster appointed by a court pursuant to a judgment doesn't have standing to appeal a decision of a trial court giving water to a particular person; instead, the other landowners (if any) thereby deprived of water are the only ones who might be able to appeal. Even if the trial court's decision seems wrong, or makes the watermaster's job more difficult, that doesn't matter -- the watermaster is getting paid for its work, so more work simply means more money, and that's not harm.  In any event, if the watermaster doesn't like the burden, it can quit.  Because it's not harm, it doesn't have standing, so the watermaster's appeal of the decision below is hereby dismissed."

There you have it.

Or, as we sometimes say on the basketball court, "No blood, no foul."

Grand Canyon Trust v. Provencio (9th Cir. - Feb. 23, 2022)

With the long weekend, there hasn't been much from the Ninth Circuit or California Court of Appeal lately.  But this morning, I read this opinion, which struck me as a fairly good example of "balls and strikes" jurisprudence.

The case involves uranium mining in the Grand Canyon, and whether it should continue.  Now, personally, I'm not exactly thrilled that we're puking out radioactive material alongside one of the natural wonders of the world.  So if you asked me whether it was worth it (as a society to do so), I don't have a definite sense one way or the other (without knowing more), but would lean towards a "Nah, let's leave the place pristine" vote.

But, as a judge, that's not what one does.  You gotta follow the law.  And the law here is admittedly disputed and unclear, but what we gotta do is simply try to figure out what it says the best way we can -- regardless of where it leads.

Legally, the limited question here is whether, under a particular statute, it's okay to ignore sunk costs when deciding whether particular mineral deposits are valuable.  The relevant law withdrew certain public lands from mineral exploitation (including those here), but also says that companies that own existing claims there get to continue to exploit them if there are "valuable mining deposits" there.  So one thing you've got to do to figure out if the deposits are (in fact) "valuable" is to figure out if it'll cost more to dig 'em out of the ground than the deposits are worth.  'Cause if not, then the deposits aren't (practically) valuable.

Easy enough, at least in theory.  But here, some of the expenses that'd be involved in mining the stuff have already been expended -- roads, the first fifty feet of the mine, etc.  We call those "sunk" costs -- a term that's somewhat ironic (but particularly appropriate) given that we're talking in part about a mine shaft.  Do you count those costs as part of the relevant costs?  Or do you ignore them since they were already spent?

That's the legal issue in the appeal.

On that point, I have a definite sense of what's right.  You ignore them.  The money has already been spent.  You can't get it back.  If it only costs, say, $10 million more of drilling to get $50 million worth of gold, it doesn't matter that you previously spent $45 million to get where you are.  It's worth it to spend the $10 million.  So the minerals are valuable.  (Even though, in retrospect, you shouldn't have started the project in the first place.  That ship has already sailed.)

Here, that fact's dispositive.  Since it means that the uranium is, in fact, valuable.  Which means it gets mined.  Even though I'd probably prefer that it not be.  The law's the law.  (And I say that even without the Chevron deference that the panel applies here; in my view, even wholly on the merits, it's a basic and sound economic principle that you ignore sunk costs, so that's the right way to resolve things even if the relevant agency hadn't already spoken on the point.)

I'm not saying that every case gets resolved purely on the meaning of words, without consideration at all of the underlying result.  That's not, in fact, the case.

But this is a good example, to me, of one that properly does.

P.S. - Unexplored in the opinion is how you resolve this issue for materials the value of which can (and does) wildly fluctuate.  For example, here, the company started the mining process when uranium was expensive, but stopped once it became cheap.  Then, when that commodity became expensive again (at the time, $56/pound), wanted to restart, and that's the price at which the cost/benefit ratio was assessed in this opinion.

But for what it's worth, up until about six months ago, uranium prices had fallen again, and were back down to $30/pound.  Which may well mean that the mineral isn't "valuable" any longer.  So does that mean the lands were withdrawn at that point?  And what about now, when the price (in September) spiked up to $50/pound, and has now settled at around $45/pound.  Still "valuable"?  Or no longer valuable?  How do these things work out when commodity prices fluctuate, as they invariably do?  No clue, but interesting.

Rogers v. Dzurenda (9th Cir. - Feb. 14, 2022)

The three different opinions in this death penalty case -- four, if you count Judge Hurwitz twice -- take various different approaches.  But I can summarize the one point on which they all agree in a single sentence:

"Are we seriously appointing lawyers to defend people in death penalty cases who passed the bar four months ago?!"

People v. Clements (Cal. Ct. App. - Feb. 16, 2022)

Defendant asked her ex-husband to kill her brother, and he did so.  That's pretty rare.  Usually you don't kill your brother.  Even then, you usually don't get your ex-husband to do it.

Also unusual:  the brother was only 16 years old.  Not your typical murder victim.

Add to the complexity:  The motive for the murder was, in part, the prior sexual relationship.  Between the sister.  And the brother.  And the ex-husband.  All three.

For these and other sordid details, check out the opinion.

People v. Reynoza (Cal. Ct. App. - Feb. 14, 2022)

The Court of Appeal reverses Raymond Reynoza's conviction for dissuading a witness on the grounds of insufficient evidence.  That's a fairly huge win for the guy.  It means he's released from prison and can't be retried, right?

Except for one thing -- something not mentioned anywhere in the opinion.  Mr. Reynoza was convicted and sentenced to two years in prison in 2019.  It's now 2022.  They guy's already out.  With the various extensions of time for the filing of briefs and the reporter's transcripts, the appeal didn't even get heard (much less decided) until pretty much everything was basically already mooted by the passage of time.

Does that make the appeal moot?  No.  Not legally.  It would still (potentially) count as a strike if Mr. Reynoza was convicted of anything in the future, he might still be supervised after his release, etc.

Nonetheless, as a practical matter, even a "huge win" by Mr. Reynoza in the Court of Appeal isn't all that huge after all.  He might not have (legally) done the crime, but already served his time.

People v. Alvarez (Cal. Ct. App. - Feb. 14, 2022)

You can see why Justice Perluss comes out the way he does in this case. given the questions that were asked and the way the issues were framed.

But the questions that aren't answered are, in my mind, at least as important as the ones that are asked and answered.

(1) The Court of Appeal squarely holds that the first question that the prosecution asked at trial didn't violate Miranda because, technically, the question was simply "Did you ask the defendant if the bag was his?" and the answer was "Well, I didn't, but my partner did."  (I'm simplifying the exchange .)  Okay, yes, technically, at least in light of the answer, the question didn't call for anything the defendant said, so there was no Miranda violation.

But the second question ("What'd the defendant say in response?) definitely called for something protected by Miranda -- at least if he was in custody, which he pretty clearly was, I suspect.  But to that, the Court of Appeal says:  "But there was no objection to that question, so the issue is forfeited."

Which is probably correct as a legal matter.

But it doesn't answer the underlying question:  Was there a Miranda violation or not?  And since that's still an issue, it'll come back again:  this time, as an ineffective assistance of counsel claim.  A fairly good one, at that, since there was zero tactical reason not to object to that second question as well.

So, yeah, the Court of Appeal elides the issue for now, but it doesn't really answer the relevant question, which is something they'll have to deal with at some point anyway.

(2) There's a similar thing going on with respect to the "Does wearing a mask during COVID violate the Confrontation Clause" issue.  Not surprisingly, the Court of Appeal holds that wearing a mask is fine -- a holding consistent with pretty much every other court to have decided the issue.

That answers the question of whether wearing a mask is permissible.

But the real question -- a much harder one, in my mind -- is whether wearing a non-transparent mask during COVID violates the Confrontation Clause.  There's no doubt wearing a mask that blocks one's view of the mouth and a big portion of the face makes it more difficult (though not impossible) for a jury to decide credibility, which is the whole point of the Confrontation Clause in the first place.  And there's also no doubt that transparent masks are readily available -- ones that would obviate that problem -- and that these masks are likely just as effective at preventing COVID as the cloth and other masks that people are permitted to wear.

So the though question is whether, so framed, there's a Confrontation Clause violation.  Yeah, the state can order people to wear masks.  But if a defendant says "I want the jury to see your whole face; here's a transparent mask, wear that one," is there really a state interest in saying "Nope, the witness is free to obscure half of his face while testifying (and do so behind a plexiglass shield, even) despite the fact there's not really a state interest in making sure the mask isn't transparent?"  That seems the much tougher -- and dispositive -- issue.

Those are the two questions neither asked nor answered in today's opinion.

Kirk v. Ratner (Cal. Ct. App. - Feb. 10, 2022)

Maybe it's that I'm simply in the wrong field, but until a couple of years ago, I wasn't at all used to seeing settlement agreements in which each of the parties deliberately used fake names on these documents.  Yet nowadays, I stumble across a non-trivial number of cases where, yeah, that's apparently an accepted and common practice.

Take this opinion from earlier today, for example.  Personally, I've never heard of the actress in this case (Charlotte Kirk) -- though, apparently, things involving her caused quite a stir in the movie studio world at some point.  To keep everything quiet, the parties used completely fake names on all their underlying legal documents.  To no avail, ultimately.  As this latest published opinion (using their real names) amply reflects.

I know the whole "confidential settlement" thing is a hot topic these days.  There are definite upsides and downsides to the practice.

Ultimately, just remember that even if you think the stuff is supposed to remain confidential, that doesn't always end up being the case.

No matter how much you try and how many lawyers you employ.

Joseph v. City of Atwater (Cal. Ct. App. - Feb. 9, 2022)

It looks like Samuel Joseph won't be the chief of police of the City of Atwater any longer, but he might perhaps be a lieutenant on the force -- at least if he wins the hearing to which the Court of Appeal holds he's entitled.  (Plus, presumably, back pay for all those years he was previously off the force.)

The opinion doesn't mention them (at all), but here are some of the allegations against Mr. Joseph.  Maybe they're true, maybe they're not.  I guess we'll eventually find out in the hearing.

But either way -- and even if they're true -- I suspect that Mr. Joseph will get a fair chunk of change.

U.S. v. Mendoza (9th Cir. - Feb. 8, 2022)

Here's one of those rare opinions that reverses a criminal conviction -- several of them, actually -- for insufficient evidence.

Judge Bea's opinion is pretty darn comprehensive, as well as persuasive.  It's far from a clear-cut case, but I think Judge Bea is spot on in his (extensive) evaluation of the evidence on both sides.  (With one caveat:  I'd have liked to read a bit more discussion of the "police scanner" fact, which the opinion mentions but pretty much otherwise elides.)

I also liked the opening gambit of the opinion, which reads:  "Every parent knows that teenagers make mistakes. A fifteen-year-old Henry Mendoza was no exception, though his error was far more serious than most."  That's a sentiment far too uncommon in modern parlance -- judicial and otherwise.

Even after the opinion, Mr. Mendoza's still convicted of a federal offense. But he's going to serve a lot less time than the 15 years in prison for which he was originally sentenced.

People v. Mendoza (Cal. Ct. App. - Feb. 3, 2022)

You don't see many appellate decisions these days involving the crime of extortion.  Some, of course, but not many.  Maybe that's because it doesn't happen all that much.  Maybe it's because practitioners usually get away with it.  Whatever the reason, I simply haven't thought about that particular crime much.

But today's opinion involves a defendant convicted for extortion, and Judge Harutunian (sitting from San Diego) writes something that suggests -- quite accurately, I think -- that the line between "extortion" and simple "robbery" is often an incredibly narrow one.

Take, as here, a guy who walks up to someone and says (in sum or substance) "Give me $100 or I'll beat you."  Sounds like a fairly typical robbery, eh?  But it can also sound like a classic attempt at extortion -- in particular, a demand for payment of "protection" money.

So which is it?  Or is it both?  Regardless, what's the legal distinction?

Here, it seems like it's extortion -- which is what the defendant is in fact convicted of -- if only because the defendant did the same thing to the victim repeatedly and on a schedule (i.e., here, on the first of every month).  That seems clearly a protection racket and, hence, extortion.

But imagine it was only the first time he did it.  And, perhaps, that it was simply a one-time thing:  pay me $100 now or I'll hurt you.  Robbery?  Extortion?  Totally hard to tell.

I'm not certain at all that I can come up with an actual "rule" to distinguish the two crimes, honestly.  I have a keen sense that I know extortion (as opposed to robbery) when I see it, at least in its most classic manifestations.  But were prosecutors to charge someone with extortion in the classic robbery setting -- e.g., the prototypical "mugging" scenario -- I'm not sure I could come up with good arguments for why one crime is the one and the other crime is the other.

There's got to be a difference, that I know:  we don't (and can't) have entirely duplicative crimes.  But what the difference actually is here honestly escapes me.

Perhaps smarter others can figure it out.  But as for me, I remain befuddled.

Panterra GP v. Superior Court (Cal. Ct. App. - Jan. 31, 2022)

Justice Smith begins his dissent by saying: "I respectfully dissent from the majority opinion. The majority, in this rather straightforward case, has gone to great lengths to reverse the trial judge, when the latter correctly resolved this case . . . ."

I like the first sentence, in which the "respectfully" part actually appears respectful (as opposed to sarcastic), but am less certain about the second one.

Yes, the majority opinion (written by Justice Poochigian) reverses, and yes, it seems to fix a problem that pervaded the case.  But I'm not sure it does so erroneously.

Plaintiff says the parties accidentally wrote down the wrong name on the contract and that, as a result, the actual plaintiff (the one who did the work) can't get paid a dime.  That seems plausible to me; I could see that happening sometimes, and (perhaps) particularly in this context.  If that in fact transpired, that's not right, and the law should grant a remedy; something we call reformation.  And that's what the majority opinion says might in fact happen.

No one's saying that plaintiff's definitely right; we're at the pleading stage here.  But if they're right, the law seems to me both can and should grant a remedy.  Writing in the wrong name isn't fatal.  And that's true regardless of the fact that the prior lawyers initially filed a complaint -- presumably relying on the name written in the contract -- on behalf of the wrong name.

It's a fact question.  Let summary judgment and/or trial sort it out.

Even if that means writing a somewhat lengthy majority opinion to allow that to happen.

Zannini v. Liker (Cal. Ct. App. - Jan. 31, 2022)

This is a medical malpractice case in which the plaintiff becomes a paraplegic, and while the case against most of the defendants gets resolved (one way or the other) before trial, one of the doctors goes to trial and prevails.  The Court of Appeal subsequently affirms.

Nonetheless, when reading the opinion, I gotta say that I don't come away from the thing thinking that that the Henry Mayo Newhall Hospital in Santa Clarita is necessarily the place to which I want to go if I'm in a life-critical situation.  Events like these are definitely troubling to me:

"Mr. Zannini was paralyzed. “I can’t feel my body.” Mrs. Zannini called 911 and the paramedics came within 10 minutes of the call. They took Mr. Zannini by ambulance to the emergency room at Henry Mayo Medical Center in Newhall, where his initial surgery had been performed 11 days earlier. He arrived in the emergency room at 5:25 p.m. . . .

Upon arrival, Mr. Zannini was seriously compromised. He was acutely paralyzed with no motor strength and had no sensation from the nipple line down. He had no anal reflex. He had a priapism (an involuntary erection), a slow heartbeat, and low blood pressure. Dr. Lee knew time is of the essence in every patient who is paralyzed. At 5:26 p.m. she called a Code Trauma . . . .

Dr. Lee ordered the MRI scans at 6:11 p.m. The plan was to determine if there was pathology that could be corrected by surgery. The MRI scanner was located in a separate building which required medical staff to transport Mr. Zannini out of the emergency room, across a street. and into another building about 300 yards away. The MRI team had to be summoned to the hospital. The MRI technician arrived at 6:50 p.m.

In the meantime, Mr. Zannini was in the emergency room experiencing, in addition to his paralysis, difficulty breathing, severely low heartbeat, and low blood pressure. . . .  However, the MRI technicians could not take Mr. Zannini to the MRI suite and put him into the scanner unless he was medically stable; to remain stable, Mr. Zannini needed the Levophed infusion during the MRI. The Levophed pump had to be MRI compatible. The hospital did not have a compatible pump readily available. By the time hospital staff located a compatible pump and Mr. Zannini was stabilized, it was 7:40 p.m. when he was finally transported to the MRI scanner. While Dr. Lee was trying to stabilize Mr. Zannini’s blood pressure and staff looked for a compatible pump, Dr. Liker called Dr. Mortazavi at 6:00 pm. to brief him on what was happening . . . .

He, Dr. Liker, and Dr. Yashar reviewed the MRI scans on their phones. Dr. Mortazavi called the operating room and the emergency room and told the staff to prep Mr. Zannini for surgery and to be prepared to start surgery at 10:00 p.m. when he arrived. Dr. Mortazavi received a response from the hospital that the operating room was not going to be available for Mr. Zannini’s emergency surgery until 11:00 p.m. because there was another operation in progress that would not be finished until then. Mr. Mortazavi asked staff to bring in a second operating room team; he was told that would take even longer.

Both Dr. Liker and Dr. Mortazavi separately called the hospital to no avail to try to expedite the surgery. Dr. Liker called Mrs. Zannini to tell her that Dr. Mortazavi had decided on surgery. Dr. Mortazavi called the hospital and told staff to have Mr. Zannini in the operating room ready to proceed when he arrived.

Now that he knew he could not start surgery until 11:00 p.m., Dr. Mortazavi drove a little more slowly and arrived at the hospital at around 10:50 p.m. He was dismayed to find that Mr. Zannini was still in the emergency room, not yet in the operating room as he had requested. He yelled at the staff. Eventually Mr. Zannini was taken to the operating room where Dr. Mortazavi commenced surgery at 11:35 p.m. and removed the blood clot."

Not exactly what you want to happen when what's at stake is whether you're going to be paralyzed for the rest of your life, eh?

People v. Holmes et al. (Cal. Supreme Ct. - Jan. 31, 2022)

My reaction to the first eight pages of this opinion can be accurately summarized by what I found myself spontaneously saying out loud as I reached the end of those few pages, which was:  "Jesus Christ.  This stuff should not be happening in our world." 

You can read the whole thing for yourself if you'd like, but here's the most depressing/disturbing part -- the part that made me speak to myself out loud.  I present it without commentary, though will mention that it follows a description of several other murders and/or attempted murders:

"Earlier that night, 14-year-old Reggie Crawford, 13-yearold Edgar Evans, and 13-year-old Stephen Coats attended a Halloween birthday party in Pasadena. Around 10:00 p.m., they left with Coats’s brother, Kenneth, and seven other boys.7 As they walked to the Coats home, a car carrying four or five Hispanic men sped by and turned from North Wilson Street (hereafter Wilson Street) onto Villa. Immediately afterward, four or five cars “packed full” of Black men drove down Villa toward Wilson Street. These men displayed P-9 gang signs and swerved near the curb as they passed by. One witness said three of these cars were dark-colored compacts, and another recalled that one was tan or grey. Holmes owned a grey Ford Tempo.

About three minutes later, three boys left the group of departing party goers. Crawford, Evans, and the Coats brothers continued walking down Wilson Street with Lawrence A., Lloyd S., A.A., and A.P. As they walked, Stephen and Kenneth’s mother, Deborah Bush, drove by and offered her sons a ride home, but they declined. Stephen joked that Bush drove so slowly he could get home sooner on foot. As they continued on, Stephen, Crawford, and A.A. sang a song called “Gangster Lean.” When the song ended, Kenneth heard a deep male voice say, “Now, Blood.”

Shots erupted. Several witnesses described what happened. Lloyd heard a single boom followed by approximately 20 gunshots and saw blue sparks pass by his feet. Initially he thought the noise and sparks came from “a pack of firecrackers.” He and A.A hid behind a brick barbeque. A.A. had been shot in the hand. Lawrence also hid when he heard the gunshots. When the firing stopped, he emerged and called out to his friends. No one responded, but a figure stood nearby. Gunfire resumed. Lawrence retreated to his hiding spot but was shot in the leg as he ran.

Kenneth also initially thought the gunshots were firecrackers. He and his friends kept walking until they noticed Evans holding his stomach. Evans cried, “Mama,” and began crawling away. Stephen then pushed Kenneth away and said, “I’m hit.” As he tried to hide, Kenneth saw the outline of two figures. One was taller and heavier and wore his hair in braids. The figures ran toward Orange Grove.

The three boys who had split from the group earlier ran back to their friends when the firing stopped. Crawford and Stephen lay unmoving. Kenneth screamed, “They shot my brother!” and “Let me to him.” Evans lay on some stairs, still calling for his mother. A.P. sat in a driveway, shot in the leg.

Lloyd knocked on a nearby door and asked to use the phone. He called his mother while the homeowner called police. Bush had heard the shots as she pulled into her driveway and ran back down the street toward her sons. When she arrived at the scene, she found two boys on the ground. Crawford had no pulse. Bush saw that her son Stephen “had a bullet in his head and . . . was already gone.” She never saw Evans. Kenneth ran up to her, crying “I want my brother. Please don’t let this be my brother.” Bush’s daughter arrived and covered Stephen’s body with a jacket. Paramedics and police arrived shortly thereafter.

Stephen sustained multiple gunshot wounds. Crawford was struck by three to five rounds and died from a shot to his chest. Evans died from a similar wound."

People v. Gerson (Cal. Ct. App. - Jan. 28, 2022)

One thing we teach students in Constitutional Law is that it's really, really hard to win an equal protection challenge to a statute if the underlying legal standard is rational basis review.  Essentially impossible; all the government has to do is to have its lawyers come up with a non-laughable post hoc argument for the way two different groups are treated that might potentially in some universe be true and, boom, the state wins.

So it's noteworthy that the Court of Appeal here -- in the midst of a lengthy opinion on numerous distinct issues -- holds that the statute at issue violates equal protection.

Not that the Court of Appeal is wrong; indeed, it's right (IMHO).  The statute says that when you're charged with a crime and can't make bail, one option is for the court (with your permission) to allow you to be placed in home detention -- with GPS monitoring, requirements that you not leave the residence, particularized exceptions, etc.  And when you're in that program (stuck in your house) before you've been convicted, if you ultimately get sentenced to prison, you get credit to your sentence for the days you were stuck in your house.

Makes sense.

But Mr. Gerson did make bail ($2 million worth!), and got the same conditions imposed on him as the statute requires for people who can't make bail and are released on home detention -- GPS, can't leave the home except for specified things, etc.  He says he should get custody credit too; it makes no sense to treat people who make bail but are then released and confined to their home any different than people who can't make bail but are then released and confined to their home.

And the Court of Appeal agrees with him.

Mind you, for Gerson himself, this only knocks a couple of years off his nearly 34-year sentence.

But still, it's an important decision overall.  Plus, even for Gerson, even two more years in prison is a bit deal.  Much better to be out.  (And, parenthetically, given the facts of the case -- which happened down here in San Diego -- Gerson is super lucky merely to be alive, rather than shot and killed by the police.)

The facts are also a fairly chilling lesson about what can happen when you find yourself way too deep in the whole hallucinogenic scene, my friends.

To repeat the mantra of a show from my youth (albeit in a somewhat different context):  "Lets get careful out there."

People v. Banner (Cal. Ct. App. - Jan. 21, 2022)

The facts of this case are incredibly straightforward; indeed, they're on video.  As Justice Snauffer says:

"The facts are simple. Banner entered a restaurant and waited in line several minutes behind multiple customers. Two employees helped each customer. When Banner reached the cash register at the front of the line, he produced a toy firearm and demanded money from the employee operating the register. That employee did not believe the firearm was real and refused to comply.

A second employee, standing near the register and across from Banner, ran away in fear. Banner subsequently left emptyhanded and was arrested nearby a short time later."

That's sort of a pathetic attempt at a crime, no?  Sufficiently pathetic that no one's really even harmed, even though I readily concede it's not fun, someone could theoretically have a heart attack, etc.

Mr. Banner has a criminal history, of course, so it's not like he's going to just be sentenced to probation.

Still, I was somewhat surprised that he got nine years in prison for this.  That's a fair piece of time for a not-so-impressive attempt at a robbery.  (Especially since it seems from the opinion like Mr. Banner has a fair amount of mental health issues; e.g., the court's statement that it "believed he did have mental health issues" and "the fact [Banner] was able to conduct the crime in the way he did does not mean that he does not suffer from a mental health issue. It may just mean that it was somewhat in abeyance at the time ….”

I suspect those underlying issues won't improve much during Mr. Banner's subsequent years in prison.

McDougall v. County of Ventura (9th Cir. - Jan. 20, 2022)

I'll simply reprint what someone e-mailed me about this opinion by Judge VanDyke:

"You see this? (I'm sure you have actually).  A concurrence to one's own opinion simply for the purpose of belittling your colleagues in a sarcastic and snarky way?"

Yes.  Unusual, indeed.

United Grand Corp. v. Stollof (Cal. Ct. App. - Jan. 19, 2022)

When you're an attorney and the Court of Appeal repeatedly mentions your name in its opinion, that's rarely a good sign.

The opinion's opening sentence gives you a sense of what the Court of Appeal's (understandable) attitude might be towards this case.  It reads: "In this sixth appeal arising from a simple unpaid rent case that began in 2014 . . . ."  Given that introduction, you know that the Court of Appeal is likely to be miffed at at least one of the parties; in particular, whomever it blames for the repeated litigation.

And the Court of Appeal seems to think that the culprit here is the appellant, United Grand Corporation.

Once you read the opinion, you can readily understand why.

In essence, Malibu Hillbillies and Marcie Stoloff allegedly fail to make some rental payments, and so get sued, and a default judgment is entered against them.  They eventually try to simply pay the judgment, but United Grand Corporation isn't having it, and instead wants them to pay the judgment plus "close to $2 million in attorney fees."  Which the trial courts are most decidedly not psyched about; indeed, "as a partial terminating sanction, the trial court issued an order striking United Grand’s prayer for attorney fees due to 'pervasive misconduct' by United Grand, its attorney or both."  Thereafter, "the trial court incorporated its March 17, 2017 ruling into the judgment and specifically found that United Grand’s attorney had committed misconduct."

Neither the trial court nor the Court of Appeal was shy about identifying that attorney: Cyrus Sanai. Whose name might perhaps be familiar to you from other litigation.  (For example, as today's opinion explains, "As detailed in our previous opinion, “Despite the essentially uncontested nature of the case, [UGC’s] attorney, Cyrus Sanai, continued to generate a large amount of attorney fees on the case.” (United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 146 (United Grand).)"  

The Court of Appeal mentions Mr. Sanai's name around a half-dozen times and his role in this whole morass throughout.  As I said at the outset:  Never a good sign.

You can look up Mr. Sanai's disciplinary history here if you wish.  It's actually fairly depressing that the original charges against him were filed over eight years ago and are still simply pending.  The docket reflects a long, long history -- just like the present appeal.

In the end, though, today's opinion at least ends the civil matter.  Ms. Stoloff had to pay her $56,000 or so in unpaid rent etc., so she's out that money.  But today the Court of Appeal affirms the award to her of $165,000+ of her attorney's fees, plus awards her costs on appeal.

Which doesn't likely make her even, of course:  she still had to spend the money.

But it's nonetheless something; at a minimum, she might take it as a little bit more cosmic justice than she'd received previously.

Sanchez v. Westlake Svcs. (Cal. Ct. App. - Jan. 18, 2022)

This is sort of a harsh result, no?

At the end of a lawsuit, plaintiff/appellant filed a motion to recover her attorney's fees and it was denied, so she filed an appeal.  But she forgot to dismiss the lawsuit (as agreed), and eventually figured that out and dismissed it.

That's definitely a technical mistake, since the first notice of appeal was premature and after dismissal, she didn't file a second one.  But typically -- or at least often -- the Court of Appeal would exercise its quite considerable discretion under Rule 8.104 to hear the appeal.

Not here.  The Court of Appeal dismisses the appeal flat out.

You definitely see decisions like that from wig-wearing judges in the United Kingdom, where they're very particular about following the rules to letter.  Less so in America, and even less so in California.

But today's opinion is nonetheless a reminder that rules are rules, and sometimes judges care.  Deeply.

In re Terraza (Cal. Ct. App. - Jan. 11, 2022)

The concept of great literature -- books, even -- has gone a little bit out of fashion for the contemporary Tiktok/Instagram/Snapchat generation, but there are still people who've done some reading, if only old farts such as myself.  Plus, as a bonus, because we're apparently unable or unwilling to come up with new ideas, pretty much every book -- even comic books -- is now turned into a movie (or series of movies).

So it is, for example, with One Flew Over The Cuckoo's Nest.  (Though I admittedly date myself by reference to a book that came out in 1962 and movie from 1975.)

Anyway, if you've read the book, or seen the movie, or simply know about the history of electroshock therapy, you'll know that it's far from noncontroversial.  It is not depicted well in the book or movie.  At all.  There was a period of time in which it was most definitively viewed as barbaric to shoot electricity through someone's body and have them convulse in pain as a means of "curing" a mental illness.

If you thought that we didn't do electroshock therapy anymore, you were wrong.

If you thought that, at a minimum, we don't do electroshock therapy to people without their consent, you were also wrong.  As this opinion amply reveals.

The Court of Appeal holds that its okay to use electroshock therapy on prisoners without their consent, at least if certain procedures are followed.  It relies on a little-cited section of the Penal Code (Sections 2670 et seq.) passed in 1974.  We call it "organic therapy" nowadays to try to get rid of the stigma.  But it's the same thing ("The term organic therapy refers to . . . psychosurgery, including lobotomy . . . or other destruction of brain tissues, or implantation of electrodes into brain tissue [and] shock therapy, including but not limited to, any convulsive therapy. . . .").

I knew there were still people that did ECT.  I didn't knew we were still forcing it on people; in particular, people who were in institutions without their consent.

The more things change. . . . 

San Diego USD v. California (Cal. Ct. App. - Jan. 11, 2022)

It's a lawsuit by the San Diego Unified School District against the State of California, so there are big players involved.  It's also a suit that involves a fair piece of money; the litigation is about $1.5 billion in school funding that California provided to various school districts in 2017 and 2018.  California says that cash basically wiped out all of its (massive) financial obligations to the school districts, but the districts say that violates the California Constitution.  Hence the lawsuit.

San Diego Unified is a big-ticket client itself, but it's not just them suing; it's also San Jose Unified and a half-dozen other school districts as well.  In short, this is no small litigation.  California's represented by the Attorney General.  Who's representing the school districts?

According to the opinion, anyway, a sole practitioner.

That just seemed somewhat implausible to me.  How would a sole practitioner have the gravitas and/or pull to rake in such a big case involving such big clients?

The Court of Appeal lists the school district's attorney as "Christian M. Keiner for Plaintiffs and Appellants."  But when you look up Mr. Keiner, he's listed as with DWK in Sacramento, a mid-sized (50+) attorney firm.  Ditto when you look up the case information for the appeal; not only is Mr. Keiner listed as belonging to DWK, but so's his co-counsel, William Tunick (who's for some reason not on the caption).

A mid-size firm representing the districts makes much more sense than a sole practitioner.

Mr. Keiner and the school districts lose regardless.  But, as P.T. Barnum famously said, any publicity is good publicity, at least if they list you with the right firm."  (Quote edited for contemporary law firm practice.)

Lozano v. City of Los Angeles (Cal. Ct. App. - Jan. 7, 2022)

I'm glad these two police officers got fired.  I'm also glad the Court of Appeal affirms.

Did the officers do the most horrible things in the universe?  No.  They didn't kill someone, they didn't violate someone's civil rights, etc.  There are definitely worse officers out there.

But am I pleased that the officers seem to be far more interested in playing Pokemon Go while on the job rather than actual police work?  No, that does not make me particularly happy.  That's not what I want our police officers to be doing while they're working; particularly in a high-crime area.  I'd much rather our tax dollars pay for you to chase bad guys than to run around capturing fictional animated creatures on your mobile phone.

I'm also not pleased that these officers deliberately decided not to back up another cop when he requested assistance.  But perhaps most damning, to me, is the fact that they lied about all of the above -- and we're fairly confident of that, because there's video evidence from the camera in their police cruiser that shows the truth.  Lying is bad to begin with, but when we know you lie about even small things (like Pokemon Go), I suspect that you might well lie about much bigger things as well.

And police officers are far too much in a position of trust to have people there who we know lie about even tiny things.

So feel free to play Pokemon Go on your own time, or to not back up other people just because you don't like them (or feel lazy).

Just don't be a cop.

Mayes v. La Sierra Univ. (Cal. Ct. App. - Jan. 7, 2022)

You'd have bet on the plaintiff losing this appeal.  You'd have been wrong.

Plaintiff decides to watch her son pitch in a college baseball game, and sits on the grass on the third base side.  There's no admission charge or anything like that; it's a classic small-college field.  She gets hit by a foul ball and sues the school.

The trial court grants summary judgment based upon the primary assumption of the risk doctrine and the longstanding "baseball rule" -- a doctrine that essentially says that venues aren't liable for foul balls, since that's simply part of the sport, and aren't required to put up netting or things like that.

The Court of Appeal reverses.  It thinks that the University may well be liable.  And isn't shy about saying so; or criticizing precedent in this area as "out of step" with contemporary jurisprudence.

I wouldn't be surprised to see something like this from the California Supreme Court.  It's not bound by precedent.  But I was a bit surprised to see something so bold from the Court of Appeal.  Which is.

U.S. v. Jackson (9th Cir. - Jan. 4, 2022)

According to this opinion, here's where Ninth Circuit precedent currently -- and ostensibly correctly -- stands on the issue of "When the government lies to you to get you to plead guilty."

(1) When the government promises something in a verbal plea agreement, but then then allegedly breaks that promise -- and admits as much -- you're not bound to your part of the deal (e.g., your guilty plea).  The Supreme Court said so, pretty much unanimously.  (Some justices would make it a constitutional rule, some differ on the particular remedy, etc.)

(2) When the government promises something in a verbal plea agreement, but then allegedly breaks that promise -- and admits as much -- you're not bound to your part of the deal (e.g., your guilty plea), even if you said at the rote plea hearing (i.e., when you pled guilty) that there was no such promise. That's Ninth Circuit precedent.

(3) When the government promises something in a verbal plea agreement, but then allegedly breaks that promise -- but the government factually denies that it did so -- you are bound to your part of the deal (e.g., your guilty plea), if you said at the rote plea hearing (i.e., when you pled guilty) that there was no such promise.  That's yesterday's opinion by Judge Nguyen.

One of these things is unlike the other.  Logically, (3) is inconsistent with (1) and (2).  At least if, in fact, the government broke it's promise.

If, in fact, the government made and then broke its promise, you should be allowed to withdraw your plea (if you relied on the promise, anyway).  That's the lesson of (1) and (2).  And (2) shows that this is the rule even when, during the rote plea hearing, you said that there were "no promises" made to you.

By contrast, if, in fact, the government didn't make the alleged promise, you shouldn't be allowed to withdraw your plea.  That much is obvious.

Whether the government bothers to admit its breach shouldn't matter in the slightest.  What matters is what, in fact, it did.  If it made the promise and breached it, that's one thing.  If it either didn't make the promise or didn't breach it, that's another.  It's irrational for the rule to be "If the government breaks a promise and admits it, they're stuck to the promise, but if the government breaks a promise but tells a lie and denies it, they're not stuck to the promise.  A government of laws, not men, isn't supposed to work that way.

That's why we have factfinders.  To find the facts.  Defendant and his lawyers say the government made a promise.  The prosecution says it didn't.  Okay.  You have a hearing and find out who's telling the truth and then go from there.

You don't say:  "Oh, well, one side says one thing, another side says another, so whatchagonnado?"

At least not until cases like this one.

Pacheco v. United States (9th Cir. - Jan. 3, 2021)

To work, you gotta make sure to get your Depo-Provera shot every twelve weeks; otherwise, it's not effective, and you might get pregnant.

Yesenia Pacheco gets her first shot just fine; ditto for her second, third, and fourth shots.  No pregnancy.

When she goes in to get her fifth shot, however, the nurse gives her . . . a flu shot.  Totally unbeknownst to Ms. Pacheco.

Oops.

Big, big oops.

She gets pregnant.  But to make things even worse, she ultimately delivers a child who has a disability (PMG).

She then sues, and the tough doctrinal question is:  We know that you can sue for wrongful birth, but can you get extra damages because the child turns out to be disabled?

On the one hand, those are your actual damages, so you should get 'em.  On the other hand, those weren't the damages the defendant "expected" since the contraceptive had nothing to do with causing the disability.

The Ninth Circuit punts, and certifies the question to the Washington Supreme Court.