Johnson v. WinCo Foods (9th Cir. - June 13, 2022)

I suspect that this opinion is right, and that certification to the California Supreme Court isn't required because the federal courts can figure out the correct answer themselves. But I also wonder what the relevant line is on the merits.

The Ninth Circuit holds that an employer doesn't have to pay you for the time (or expenses) you expend taking the job's mandatory pre-employment drug test, on the theory that you're not yet an employee. That sounds right. They certainly don't have to pay you for the time you spend in the job interview, or for the gas that you waste getting there. You're not an employee yet; those costs are on you. That's existing law (at least as we perceive it) and common sense. Ditto, the Ninth Circuit says, for a pre-employment drug test. At least when, as here, the employer's crystal clear that you're not yet hired, and that the job offer that they have given you is a conditional one dependent on passing a drug test. The drug test is thus a condition precedent, which means you're not an employee yet, which means you don't get paid.

But how far does this go?

On that same theory, what if I offer you a job as a grocery bagger at my store, but say that the offer is contingent on you proving that you're indeed qualified -- and proof of that is me watching you spend 15 minutes bagging groceries at my store. Do the minimum wage laws etc. still not apply? Do I get to get 15 minutes of free work out of you that way? What if it's an hour, or a week, or a month? Still no pay? (By the way, I suspect this isn't an absurd hypothetical; in lots of job interviews, employers give job applicants "real world" questions and have 'em answer them -- the exact type of work that the applicant will be doing on the job. I could easily see a law firm interviewing a potential lawyer, for example, ask the interviewee about her thoughts on a particular legal matter that's the exact subject of an existing suit and/or upcoming brief.)

Every single argument that the Ninth Circuit makes here applies equally to that hypothetical, so on those same theories, no compensation would be due.

I think the panel anticipates this argument when, at the end of Part I of the opinion, it distinguishes (unnecessarily, I might add) a district court case that held that staffing agencies are required to pay employees they place with third parties. (Last time I checked, cases from the Northern District of California don't bind the Ninth Circuit.) The panel says that that prior case makes sense -- as indeed it does -- because the employees "were doing the employment agency's work" at the time, so I suspect the Ninth Circuit might say it's the same thing with my grocery bagger hypothetical, since that's what they were hired to do.

But then I'll just slightly change the facts; to be a grocery bagger in my store, as a condition precedent, I require you to clean my house and mow my lawn. I want to see if you have the stamina to be a bagger in my store, I say. Just like, in the present case, the employer is looking to see whether the applicant is qualified (i.e., free of drugs) to take the job. Still no requirement that I pay you? (And, to make things even more complicated, what if my pre-employment offer requires you to mow my neighbor's lawn, or pick up trash in on a public highway for 40 hours, instead -- that doesn't even "benefit" me, much less is it your job. Still no entitlement to pay?)

Sometimes, even a facially easy case brings up incredibly tough line-drawing obligations that give one a sense that perhaps our intuitive understanding of what is "obvious" isn't, in fact, so obvious. To me, at least, this is one of those cases. I'm truly unclear where one rightfully draws the line between paid and unpaid work in the job application context.

In re Marriages (Cal. Ct. App. - June 8-9, 2022)

The Discovery Channel has its well-known "Shark Week." By contrast, in the Court of Appeal, it's starting to look like it's "Bigamy Week."

The first of these cases was yesterday, and involved a procedural morass in family court involving the marriage of Samir Elali and Mayssa Marchoud. There were eight months of hearings about precisely who married whom when -- and to what effect -- but the long and short of it was that Samir married someone in California (whose name was Angeles Elali) but then, while still married, married Mayssa in Lebanon. So when Mayssa goes to family court, the trial court bounces her petition, on the grounds that she's not really married since Samir was already married. Bigamy and all. And the Court of Appeal affirms.

(Why you want to get married to someone else after being married for 35 years -- and not divorcing your first spouse -- is beyond me, but that's neither here nor there.)

Then, today, we see yet another published opinion involving bigamy; this time, between Pedro Aviles and Jessica Vulovic. Here, Jessica's married to Alexander, but wants to get divorced, so files a petition for dissolution. But never actually gets divorced. Then, while still married to Alexander, she marries Pedro.

Now, in this one, Jessica says she thought she was actually divorced, even though she wasn't. So after she get told that she's still married (at a child support hearing, no less), she gets actually divorced, and then a year later marries Pedro again, this time in a Catholic church. But they don't actually marry, at least as far as the state's concerned; they never actually get a marriage certificate. And then, six months later, Jessica marries Pedro for a third time, this time at a winery with 200 guests. This time, do they get a marriage certificate? No. They do not.

You'd think that with all these marriages, it would stick, right? Nope. Seven years later, they separate, and Pedro finds out -- for the first time ever -- that Jessica was still married when he married her. (The first time, which was the only "legal" marriage.) So he asks for an annulment, whereas Jessica asks for spousal support.

But this time, the whole "bigamy" thing turns out to be less dispositive. Because the Court of Appeal holds that, bigamy or no, Jessica was at least a putative spouse since she thought (wrongly) that she was not (still) married when she got married, and regardless of the reasonableness of that belief, she's thus entitled to regular old spousal benefits as a putative spouse.

The first case comes from San Bernardino County. The second one comes from Riverside County.

Who knew that bigamy was such a big thing in the Inland Empire?

U.S. v. Mendez (9th Cir. - June 7, 2022)

It's weird sex video week thus far in our particular locale.

Yesterday, it was secret up skirt videos and the like. Today, it's putting secret camera in the bedroom of a fourteen year old girl so you can watch her masturbate. Both are incredibly poor decisions that get you put in prison. Today, in federal prison.

It's also another statutory interpretation case. As usually applied, the statute says it's a (big) federal crime to "employ, [] persuade, induce, entice or coerce" a minor to create kiddie porn. But that didn't happen in the present case, since the minor didn't know she was being filmed.

The word I left out in the brackets, however, is the word "use".

Does that make a difference?

I'm not a certain, to be honest, what it means to "use" a minor "to engage in sexually explicit conduct for the purpose of" producing kiddie porn. It's common sense what it means to "persuade" a minor to do so. But "use"? That's just a weird word to employ in this context.

Given the other words in the relevant list, I would have facially thought that what Congress was getting at is that you can't "cause" the minor -- in one way or another -- to engage in sexual conduct. Which didn't happen here, since she was doing it on her own; she just didn't know she was being taped.

Apparently, at least some of the members of today's panel (Judges McKeown, Christen and Miller) were at least potentially of a similar view. The opinion says, in relevant part -- and I really like the panel's forthrightness here -- that "writing on a clean slate, some of us might interpret § 2251(a) differently by, for example, concluding that the statutory language requires the perpetrator to cause the minor to “to engage in sexually explicit conduct.”

But the panel unanimously agrees that Ninth Circuit precedent says otherwise. (Though they might be interpreting that precedent a bit broadly, TBH.) So the conviction gets affirmed.

By the way, the published opinion doesn't mention it, but Mr. Mendez gets sentenced to 20 years in prison.

Did I mention that the decisions this week have been incredibly poor ones?

Doe v. Lee (Cal. Ct. App. - June 6, 2022)

I wish this opinion had stayed unpublished. Indeed, I might prefer it were the California Supreme Court to revert its status to what it once was.

The opinion doesn't include many facts at all -- indeed, it's almost entirely bereft of them -- but from what you're able to glean from the opinion, it looks like the defendant took secret videos of the female plaintiffs in their homes, including an "upskirt" video of one of them. So they sued, and at a bench trial, recovered compensatory damages that totaled a little over $800,000.

Not surprisingly, given the nature of the torts, there were also punitive damages imposed. For a total of $240,000. An amount that's (1) a fraction of the compensatory damage award (a little under 30%), and (2) the value of an LLC interest that the trial court found the defendant continued to possess in a family business.

Seems reasonable to me, no? You can't invade someone's privacy by secretly taking sex-related (or other) videos. If you do, don't be surprised if you get spanked with some punitive damages.

But the Court of Appeal reverses the punitive damages award entirely.

Two things about that result seem problematic:

(1) I'm not persuaded that a $240,000 award isn't just fine. The Court of Appeal says that that'd be his entire net worth. For purposes of argument, at least, I'll stipulate to that. So what? Sometimes what you do is sufficiently horrible that you justifiably lose all your stuff. Sorry about that, but maybe next time, don't do what you did -- whether it be murder (I'm talking about you, O.J.) or secret videos (here). The various California cases on the issue rightly say that, generally, you shouldn't take away everything from the defendant -- though it bears mention that most of these involve corporations -- but they also say that sometimes, that's just fine. (See, e.g., O.J.). This seems like one of those "just fine" cases. If you only have $240,000, and you commit a tort that imposes (as here) $800,000+ worth of harm on the victims, then, yeah, we're taking all your money. You did it to yourself. Nor am I particularly sad by the fact that, with punitive damages, we're stopping you from getting out repaying by filing bankruptcy, since those types of damages aren't dischargeable. That's a feature, not a bug.

(2) Plus, I'm confused about the last sentences of the opinion, in which it directs the trial court to vacate the punitive damages award and says that a retrial isn't required. But when a punitive damages award is excessive, the usual rule is that we reduce it -- or order its reduction on a retrial -- not eliminate entirely all punitive damages recovery. Yet that's entirely what the opinion appears to do here. Is it really the Court of Appeal's holding that because the defendant is only worth $240,000, there's no amount of punitive damages that can be added to the $800,000 judgment?! If so, that's crazy (to me). It defeats the whole purpose of punitive damages in contexts like this one.

At the very end of the opinion, where you see the Court of Appeal's order that publishes the opinion, you find something that I've rarely (if ever) seen before -- Justice Hoch's one-sentence statement that she wouldn't publish the opinion. I can see why. I'm probably in the same camp. (Though, unlike Justice Hoch, I might not have even joined the result.)

I'm sympathetic to the view that punitive damages shouldn't generally take away every penny from a defendant. But sometimes the compensatory damages do that anyway, and I'm fine with that. And in some circumstances, like this one, the fact that the harm you (deliberately) incurred exceeds the amount of money that you currently have on hand shouldn't deprive the plaintiff of the right to spank you with an additional award of punitive damages.

Yet that's precisely what the Court of Appeal seems to hold.

In re Marriage of Hsu (Cal. Ct. App. - June 2, 2022)

There are advantages to being rich. Obviously.

But there are downsides as well. Two of which are (1) your kids often fight over your money after you die, and (2) your spouse sometimes fight over your money after you break up.

Facts evident, in spades, in this afternoon's opinion.

You see this all the time, unfortunately. It's a skewed sample, of course, since these opinion all result from lawsuits, so necessarily, relationships went awry.

Still. If the relevant individuals knew it'd end up that way, you wonder whether they'd have tried as hard as they did to make all that money.

Almond Alliance v. Fish & Game Commission (Cal. Ct. App. - May 31, 2022)

I think you'll like this one.

We all know about endangered species, right? We want to protect them. We don't want to make lots of animals extinct. That's a given.

You're probably generally familiar with the federal Endangered Species Act. That federal law allows the federal government to declare a species as endangered, which entitle that species to various protections. Which endangered species can the federal government protect? Basically, any of them. The federal law (smartly) says that the species that can potentially be listed are "any member of the animal kingdom, including, without limitation any . . . arthropod or other invertebrate."

The California Endangered Species has a similar focus, but is much less well-known. It operates the same way: California can declare certain species endangered, and then they obtain various protections.

But unlike the federal law, the potential coverage of the California statute is -- probably accidentally -- not essentially unlimited. It doesn't cover "any member of the animal kingdom" like the federal law. Rather, it lists the various categories. Super broadly, mind you. But there's nonetheless a list. The California statute says that the state is allowed to list as endangered any "native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant."

Great.

So that brings us to the present dispute.

Can bumble bees be listed as endangered in California?

Let's go through the list. Bees aren't birds; those are different. Bees for sure aren't mammals. Bees certainly aren't fish. Bees are obviously not amphibians or reptiles. And bees definitely aren't plants.

So they can't be listed as endangered, right? Because there's a list, and bees don't fall under any of the items in the list.

That's what the trial court held.

Today, the Court of Appeals reverses.

You may be saying to yourself: "Well, the Court of Appeal probably just held that the list set forth various examples and was non-exclusive." Nope. That's not what it found.

Rather, the Court of Appeal said that bumble bees were on the list. That they were inside one of the groups on the list.

Which one do you think the Court of Appeal held encompassed bumble bees? As a reminder, here are your choices:

A. Birds.

B. Mammals.

C. Fish.

D. Amphibians.

E. Reptiles.

F. Plants.

Pick one. Which one do you think the Court of Appeal thought included bees?

Let's even make it more fun. Rank 'em in order. Which is the most likely to include bees, in your view, and which is the least likely, and which ones (in order) are in the middle?

With this hint: I'm going to spot you "Plants." Obviously bees aren't plants. So if you had to choose which one bees fall into, which one would you choose, and then rank the other ones from the most plausible to the absolutely least plausible. Got it?

Okay. Done yet?

Don't cheat. Okay, let's see where the Court of Appeal's ultimate holding comes out on your list.

The Court of Appeal held that bumble bees, under this list, are . . .

. 

.

.

.

Fish.

Where was that one on your list?

Now, mind you, there's a definition of "fish" in a different statutory section. And that definition says "'[f]ish’ means a wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals." And the "invertebrate and amphibian" part of that definition was added in 1969 fairly clearly because California wanted to be able to cover "starfish, sea urchins, sponges and worms," which might not technically be a "fish, mollusk, [or] crustacean," so we added those things.

But you'll notice the basic point here, right? All these things are in the water. Because, after all, we're defining the term "fish". 

So if you're asking me whether, for example, jellyfish are covered as "fish" under the statute, I'd have to say "Yes," even though they're technically not fish, since they're aquatic invertebrates, and invertebrates are now covered under the statute.

Justice Robie essentially uses the same argument to conclude that bees are fish as well. Because bees have exoskeletons. Which means they don't have a spinal column. Which means they're invertebrates. And since the definition of fish includes invertebrates . . . .

Bees are fish.

I've shortened and simplified the Court of Appeal's analysis, but that's essentially where and why the opinion comes out the way it does. There's a lot of discussion of legislative history and the like, as well as talk about the various amendments, but needless to say, there's not a lot of express discussion by the Legislature about whether bees are fish.

I've written at various points about the upsides and downsides of textualism, and how one (in my view) properly interprets statutes.

Add this one to the list of facially bizarre results.

So whatchathink? Convinced that bees are indeed fish?

(By the way, I'd have facially thought that -- if I had to choose -- "bird" would have been the closest one to bees. So I looked up the definition of "bird" in the relevant statute, which super helpfully defines  the word "bird" as "a wild bird or part of a wild bird." You get my sarcasm there, right? But apparently the common definition of bird, according to most sources, is a warm-blooded feathered vertebrate. Bees, by contrast, are invertebrates (as mentioned) and are also cold-blooded. So "bird" doesn't work. That's why "fish" gets the nod.)

Martin v. Pierce County (9th Cir. - May 27, 2022)

It goes without saying that COVID has changed a ton of things for the worse. Not the least of which being the million-plus individuals in the United States who have died as a result of the pandemic.

But there are also some much less important, albeit extant, upsides. The option of working remotely or at home, for example, has never been more salient.

Similar trends exist on the legal education front. For example, where I teach, all classes are now routinely videotaped and available to students online. So now, students who are sick -- or who are simply not able to make it to class -- aren't merely limited to getting notes from a fellow student. They can actually watch the lecture. As a bonus, when studying for exams, students can go back and rewatch a lecture on any topic on which they might have been confused. That's a huge upside. It helps a ton. (Or at least is if the underlying lectures are good ones.)

I mention all this because, after reading this opinion from the Ninth Circuit today, my overall reaction was:

The Ninth Circuit might want to boot up a lecture about Shady Grove from a first-year Civil Procedure class and give it a watch. Because, uh, there are some fairly big analytical holes here.

I was initially attracted to the opinion by the caption. Plaintiff's last name is "Martin" (no relation). And the plaintiff's lawyer's name is "Martin" (again, no relation). Finally, the syllabus of the opinion lists the topic of the opinion as "Federal Rules of Procedure." All of that's right up my alley.

The opinion is all about the Erie doctrine. Now, for some of you, that'll mean you'll stop reading pretty much immediately, lest one risk a recurrence of PTSD on this topic from first-year Civil Procedure. But fear not. I can make it easy. (Okay, maybe not "easy", but at least followable. I hope, anyway.)

Washington state court has a rule that says that when you file a medical malpractice lawsuit, you have to file a declaration alongside the complaint that says that plaintiff was presented with the option to file arbitration but declined to do so. Needless to say, the Federal Rules of Civil Procedure contain no such express requirement.

Does the federal court have to follow the state rule? 

That's a classic Erie question.

There are, as you might perhaps recall, a number of different Supreme Court opinions on the topic, the most famous of which are Swift v. Tyson (the old days) and Erie itself. Now, depending on how old you are, you may or may not have been taught the Supreme Court's most recent opinion on the subject -- its 2010 decision in Shady Grove.

Regardless, the basics of the Erie doctrine are well-established, and the opinion by Judge Selna here (sitting by designation from the Central District of California) recounts the first-level analytical process fairly accurately. First, you see if there's a Federal Rule of Civil Procedure that's broad enough to cover the issue; i.e., to answer the question. Here, Judge Selna concludes that both Rule 8 (the basic pleading rule) and Rule 3 (the commencement rule) are indeed broad enough to provide an answer -- that both of 'em require only the filing of a lawsuit, not a declaration. In this regard, I think he's right about Rule 8, but wrong about Rule 3 -- and I'm fairly surprised by the failure of the opinion to discuss (or even cite) Walker v. Armco, which is a Supreme Court Erie opinion precisely about Rule 3 on this score.

But whatever. Since he's right about Rule 8 (even if he's wrong about Rule 3), there's a federal rule that tells you what to do, so the "new" Erie test applies -- which says to apply the federal rule, and hence to ignore the state rule, so long as the federal rule is permissible under the Rules Enabling Act as well as the Constitution. So that's the prong where Judge Selna (correctly) ends up, albeit for arguably only half the right reasons.

That's where Shady Grove comes in. Judge Selna cites and relies upon Shady Grove throughout the opinion, and it's indeed the Supreme Court's last word on the relevant subject. But what today's Ninth Circuit opinion doesn't mention -- indeed, obscures -- is that Shady Grove doesn't contain a majority opinion; instead, it's a 4-1-4 decision, with only a plurality on the topside.

Which, obviously, makes deciphering the opinion (and ultimate holding) not as easy as some other cases.

So what caught my eye at the very outset was that today's Ninth Circuit opinion starts out by quoting Justice Stevens for the relevant test -- the "1" in the 4-1-4 opinion. Which, among other things, is a bit surprising since not a single other justice agrees with Justice Stevens that his is the right test. 

It's also surprising since, later in the opinion, Judge Selna cites Justice Scalia's opinion when holding that the federal rules survives the relevant test, saying:  "As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.)." The problem is that Justices Scalia and Stevens could not agree less on this point; indeed, that's the whole point of the competing opinions -- Justice Scalia says (at length) that Justice Steven's test is not the right one, and Justice Stevens says the same about Justice Scalia's. So Judge Selna is mixing and matching two things that, fairly self-evidently, do not mix and match.

Wholly apart from the fact that neither of these opinions commands a majority of the Court. If only because the four dissenters express no opinion about either of these competing tests (since they think there's no conflict and hence you don't have to reach that point).

Not to get too deep into Erie, but the fight between Justices Scalia and Stevens is whether federal rules that are "procedural" can nonetheless be invalid under the Rules Enabling Act as ones that abridge or modify state substantive rights. Justice Stevens think they can be -- hence his (more restrictive) test. Justice Scalia thinks they can't be -- hence his contrary test.

Judge Selna cites Justice Steven's test as the relevant one, but then holds that the rules here are valid under Justice Scalia's less rigorous test. You can't do that. Wholly apart, mind you, from the fact that neither of these tests in Shady Grove commands a majority of the Court.

Plus, even if Justice Scalia's test was the correct one, today's opinion doesn't actually even apply it under its own terms. Part A of Judge Selna's opinion says that Rules 3 and 8 cover the matter. Great. So now we're in the second part of the test -- are those rules valid. Judge Selna concludes they are. But he does so simply by saying that no federal rule of civil procedure has ever been struck down as invalid, and hence -- since there's a valid rule -- you don't have to get any deeper.

Which is literally assuming away the entire second part of the test.

Yes, it's true, no federal rule has ever been struck down as invalid under Erie. But that doesn't mean they couldn't be, or that there's no test, or that the rule here is satisfied. You actually have to apply the test. Yes, we've got a keen sense, based on history, that the relevant test will likely be satisfied, since at least in the Supreme Court, that's always been the way the cases have ended up. But that's not the test. The test is not "since no rule has ever been declared invalid before, the present rule is valid." There's literally no one on the Supreme Court who's ever said that's the rule; indeed, that's why there's an active fight about what the actual rule is -- a rule that, yeah, has historically always been satisfied, but that's the rule regardless.

So that's a gaping hole in the opinion.

(If you think I might perhaps be mischaracterizing or less charitable about what today's Ninth Circuit opinion says, here's the entirety of Section B of the opinion, alongside the last sentence of Section A for context:) 

"As RCW 7.70A.020 answers the “same question” as Rule 3, they directly conflict. 

B. Rules 3 and 8 are Valid and Displace Washington’s Declaration Requirement 

In conclusion, RCW 7.70A.020 is inconsistent with Rules 3 and 8 of the Federal Rules of Civil Procedure. Rules 3 and 8(a) are both within Congress’s constitutional rulemaking power and the statutory authorization provided by the Rules Enabling Act. Shady Grove, 559 U.S. at 398–99; see Gallivan, 943 F.3d at 294 (“The Supreme Court has rejected every challenge to the Federal Rules that it has considered under the Rules Enabling Act.”) (quoting Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1336 (D.C. Cir. 2015)). Like the other courts to consider this issue, “we have no reason to doubt the validity of the Federal Rules at issue here.” Id.; see also Pledger, 5 F.4th at 521 (same); Albright, 24 F.4th at 1048 (same). 

Thus, Washington’s arbitration declaration requirement is displaced by those rules in federal court. As there are valid, on-point Federal Rules of Civil Procedure, we need not “wade into Erie’s murky waters.” Shady Grove, 559 U.S. at 398 (Scalia, J.). We hold that Washington’s arbitration declaration requirement does not apply in the federal courts. The district court should have applied the Federal Rules, not RCW 7.70A.020 in this case."

You see why that's not enough, right?

To be clear, in the end, I think that the result that Judge Selna reaches is the correct one. Under Justice Scalia's test, Rule 8 is arguably a procedural one, so it's valid, and displaces the state rule. And even if you apply Justice Steven's more restrictive test, Rule 8 isn't one of those rare instances of rules that are procedural and yet invade an area bound up in a state's substantive right, because while I can see a non-frivolous claim to the contrary, I don't think the state arbitration-declaration provision here really is so bound up in the substantive malpractice remedy. So regardless of which test you apply, the federal rule here (Rule 8, not Rule 3, but whatever) applies, and federal courts ignore the contrary state rule.

But you gotta get there in a different way than today's opinion does.

Or at least that's most definitely what I'd want my first year law students to do on any exam I gave 'em with this "hypothetical."

Put another way, if this was their draft answer on a practice exam, I'd tell 'em to go back and rewatch our class lecture on Shady Grove and give it another shot.

Allen v. Kijakazi (9th Cir. - May 24, 2022)

Want to see the problem with textualism? Here you go.

The case comes out the way most people would expect. Plaintiff says he's entitled to Social Security disability benefits. But he was convicted of rape, imprisoned, and then when he was about to get out, was detained as a sexually violent predator and held in a state hospital. So this whole time, he's been in state facilities at the state's expense. So the SSA thinks -- entirely understandably -- that he's not entitled to disability benefits.

And that's, indeed, what the Ninth Circuit holds. No benefits.

Now, getting committed as a sexually violent predator is a two-step process. First, the state files a petition to commit you, and ultimately, there's a trial. Both of those happened here, and, in the end, Mr. Allen was indeed found to be a SVP.

But Mr. Allen says that he's entitled to disability benefits from the date he was "released" from prison to the date he lost the trial and was ultimately committed as an SVP -- in other words, during the interim period during which he'd been charged as an SVP but not yet held to be one. The SSA responds that during this whole period, however, Mr. Allen was being held in a state facility, so he's not entitled to benefits.

Which makes total sense.

The only problem being: That's not what the statute says.

The Social Security statute, in relevant part, says that no benefits shall be paid to people confined and maintained at public expense who “immediately upon completion of confinement” for a criminal sexual offense “is confined by court order in an institution at public expense pursuant to a finding that the individual is a sexually dangerous person or a sexual predator or a similar finding.” 42 U.S.C. § 402(x)(1)(A)(iii). So if, like Mr. Allen, you're in prison for rape and then "immediately upon completion" of that sentenced, you're confined in a hospital "pursuant to a finding" that you're indeed an SVP, then you get no benefits.

So, sure, after Mr. Allen lost at trial, and was declared an SVP, he's not entitled to benefits. But what about before the trial? When he was temporarily detained based upon an allegation that he was an SVP? What about benefits then?

On that front, Mr. Allen has a super good argument. Because there wasn't a "finding" that he was an SVP at that point. There was just a petition.

The most natural, straightforward reading of the statute is that the exception doesn't apply, because the filing of a petition isn't a finding that the individual is an SVP. Which is, after all, why we have a trial; because, sometimes, people are sought to be committed as SVPs who are not, in fact, SVPs.

Now, if you're a structuralist, or care about the purposes of the statute, this isn't necessarily dispositive. Because, obviously, the whole point of the exception is to not give benefits to people who are currently in a state-run and state-maintained facility that already provides 100% of the individual's care. So if you look to things like the goals of the statute and legislative intent, it's fairly easy to come to a conclusion that, no, Mr. Allen is not entitled to benefits.

But textualists assert that it's the text of the statute that matters. Just call balls and strikes. Just follow the words.

But the words here mean that Mr. Allen gets benefits during that interim period.

But, obviously, textualists aren't happy with that result.

So they find a way around it. Like here.

The Ninth Circuit holds that the text of the exception applies to Mr. Allen because the trial court found that there was probable cause to hold him as an SVP during that interim period. Hence, according to Judge Ikuta, there was a judicial "finding" and thus the exception applies.

Which is fine, except for the tiny little problem that a finding that there's probable cause to believe that someone's an SVP is not a finding that the person is, in fact, an SVP. Which is what the actual text of the statute requires.

There's probable cause to believe lots of things that aren't, in fact, true. That's, again, why we have a trial. The statute says that there has to be a "finding that the individual is a sexually dangerous person," not that he "might be" or "potentially is" such a person.

Those words matter. If only because there's a big, big difference between being accused of something and actually having done it on the other.

Imagine, for example, a statute that says that you don't get benefits if someone "is guilty of theft." Take a person who's charged with theft but not yet convicted. Surely the fact that they've been charged does not mean they're ineligible for benefits, right? Even if there's a probable cause finding. Ditto for anyone who's been sued civilly for theft -- even if the case has gotten past the pleading stage or even past summary judgment. That it's reached that point, even if there's a "finding" that liability is possible, does not mean that the person has actually done it, or -- in the present case -- is an actual predator. Likely or possible does not mean actually is.

So if a statute takes away benefits only if there's a finding that a person actually is a predator, then the fact that (as with Mr. Allen) there's a finding that he might be a predator doesn't satisfy the statute. So he gets benefits.

But no one likes that result. So we says that "is" means something different. That a probable cause finding means that he "is" a predator. 

Even though that's totally not true.

The value -- the promise -- of textualism is that it purportedly gives words meaning and doesn't allow unelected judges to incorporate their own values or policy beliefs into statutes. And if you're a truly and honestly committed textualist, and really do just seek to call balls and strikes based upon the meaning of the actual words used, then, yeah, those values do indeed get advanced. (There are other downsides that accompany those upsides, but at least you get the upsides.)

But that's not how, in my experience, textualism generally works in practice. Instead, you have opinions like this one, that define and interpret words not in the manner they actually mean, but instead with the objective of obtaining a certain desired result.

Which is fine. Except that you're doing it while pretending that you're doing the exact opposite. Which, in my view, is not an acceptable way to do these things. At a minimum, we should be honest about what we're doing. And pretending that we're just following the common meaning of words -- and slamming others for incorporating their own policy preferences -- when the reality is otherwise just seems flatly wrong.

It'd have been one thing if Judge Ikuta had said "You know, it's a stupid result, and I'm confident it's not what Congress actually intended, but 'is' means 'is', and those are the words that Congress used, so Mr. Allen gets his benefits, and if Congress wants to change the statute, go right ahead." That'd be one way to go, and I'd be fine with that. I'd also be fine with an opinion that said "Yeah, I can see the argument that 'is' means is, but I think it's pretty darn clear from the purposes of the statute that that's not what Congress wanted, so Mr. Allen gets no benefits." Cool with me as well.

But coming up with a theory of probable cause that treats "is" as meaning something other than what it actually means just seems profoundly problematic.

And you'd think that, given history, conservatives might be particularly worried about manipulating the definition of the word "is" -- particularly in the context of sexual predators. No?

CFPB v. CashCall (9th Cir. - May 23, 2022)

CashCall wants to make loans with interest rates of between 89 and 169 percent. The problem is those pesky state usury laws. So it contracts with a front company set up by a member of an Indian Tribe to make the loans. CashCall buys 100% of the loans and none of the borrowers on on the reservation, but CashCall says that this structure exempts it from state usury laws.

CashCall's own expert, by the way, tells CashCall that "lower courts will shun our model and . . . if we reach the Supreme Court, . . . we will lose." But CashCall feels like making a profit, so goes with the strategy. And, indeed, it's a financial success, and CashCall obtains over a quarter billion dollars in fees and interest from the program.

Ultimately, however, the Consumer Financial Protection Board sues them, and obtains a civil penalty of a little over $10 million. Both sides appeal; the CFPB wants a higher penalty plus a chance at restitution of at least part of the quarter billion dollars, and CashCall wants out of the $10 million penalty.

The CFPB wins in the Ninth Circuit. The penalty gets increased and the case remanded back to the district court to reconsider whether to order restitution.

Personally, I couldn't be happier with the result. Yeah, yeah, I know that all those free market types love usurious loans. But that ain't me. Sorry about that.

I wondered who CashCall hired as their attorney on the case (and who'd take it), so checked out the caption and immediately recognized the first name listed for CashCall -- Reuben Cahn. Full disclosure: I knew Reuben briefly when I was on the Board of Directors of the Federal Defenders down here in San Diego and he was the Executive Director. Incredibly smart -- and stunningly nice -- guy.

But from running a program designed to protect the constitutional rights of indigent criminal defendants to advocating on behalf of a company that's using an Indian front company to make usurious loans to indigent and working-class individuals -- well, at a minimum, that's quite a pivot, no?

(And it's not that I don't understand the libertarian argument that the two are consistent; I just find it entirely unpersuasive.)

Los Angeles Police Protective League v. City of Los Angeles (Cal. Ct. App. - May 19, 2022)

It stuns me that there's not a state law version of abstention designed to solve problems like this one.

There's a state statute that says that a city has to do X. That statute allegedly violates the First Amendment and gets challenged in state court. Ultimately, the California Supreme Court upholds the statute.

But that same statute then gets challenged in federal court, again alleging that the statute violates the First Amendment. The federal court agrees, as does the Ninth Circuit. So the statute's unconstitutional.

Since the statute's unconstitutional, the City stops enforcing the statute. At which point plaintiff brings a state court lawsuit to compel the City to enforce the statute, saying that the federal court was wrong and that the statute doesn't violate the First Amendment.

At which point the City says: "Uh, dude, the federal courts have already decided that it does violate the First Amendment. And, the last time I checked, (1) there's this thing called the Supremacy Clause, which makes federal law trump state law, and (2) federal courts get to determine the scope of federal law, which includes the Constitution.

But the plaintiff responds: "Says you. But here's what I know: Lower state courts are bound to follow holdings of higher state courts. So if, as here, higher state courts (e.g., the California Supreme Court) have decided that the statute's constitutional, then the lower state court can't disagree. Regardless of what a federal court has held. (Unless, of course, the U.S. Supreme Court has decided something, which isn't the case here.)"

To which the City says: "I get it. But it's got to be the law that we're required to follow the decision of the Ninth Circuit, right? Because if we don't, you know full well what's going to happen; we'll ignore that decision, someone will sue us in federal court, and they'll automatically win because both the district court and that Ninth Circuit will be bound to follow precedent. So we get sued, lose, pay fees (theirs and ours), and we're back to square one."

At which point plaintiff ends the debate by saying: "All true. Sucks to be you."

And the Court of Appeal agrees.

Now, I've simplified and fictionalized the debate, but everything I've said above is true. The net effect of this opinion is basically to waste everybody's time and to put the City of Los Angeles into bind that's indisputably not of their making.

The Court of Appeal is correct that the problem would be solved if (1) the California Supreme Court granted review of the current case, and (2) overruled its prior decision. But the confluence of both (1) and (2) are most assuredly not certain. So that's hardly a solution.

Plus, again, there's no real point to this charade. The end result is going to be a federal court lawsuit that strikes down the statute (yet again). Why waste everyone's time?

It seems to me that the best solution would be to create an abstention-like doctrine similar to those we have in federal court. I'd limit it to situations like this one in which the federal appellate court for the relevant geographic area (here, California) has finally and conclusively held a statute to violate federal law, including but not limited to the Constitution. Given that decision, the state court should abstain from deciding otherwise, given the practical realities (and downsides) that would inevitably result from following the contrary prior state court ruling. The losing party could then, of course, appeal, and get the case to the California Supreme Court and (eventually) the United States Supreme Court, and if the latter wanted to change the law and reverse the Ninth Circuit, great, problem solved.

But unless and until that happened, you wouldn't go through the futile and wasteful act of ordering the City to comply with a statute that's already been declared unconstitutional and that the federal court will assuredly continue to hold can't be enforced.

Doesn't that sound like the right way to proceed?

So the California Supreme Court should grant review in this one and either (1) invent the doctrine I've just described above (which, again, I can't believe doesn't already exist), or (2) reverse the decision on the merits (e.g., agree with the Ninth Circuit) and be done with it.

I actually prefer (1), since it avoids similar problems in the future.

Regardless, we shouldn't force litigants into positions like the one the City of Los Angeles faces here.

Especially when, as here, it's 100% not their fault.

Cardenas v. Horizon Senior Living Center (Cal. Ct. App. - May 19, 2022)

It doesn't really matter that much for this case, but this isn't an awesome sign. It's somewhat the judicial equivalent of seeing two spouses at a party have a tiny little over something trivial. Sure, maybe they're just having a bad day. But you're sort of worried that maybe they'll eventually get divorced.

Justice Gilbert writes the opinion. He's been on the Court of Appeal for a long time -- 40 years (!) come December. He thinks the case should come out a certain way, and doesn't feel like it requires saying much to get there. His opinion is roughly five pages long -- and, remember, those pages aren't single-spaced. So it's an extremely brief opinion.

Justice Tangeman has been on the Court of Appeal for a lot less time; around a half-dozen years. He's the "new guy" in Division Six -- the other three have been there for 20, 30 and 40 years, respectively. Justice Tangeman agrees on the result, as well as the reasoning; no dispute there. But Justice Tangeman thinks it worth pointing out that the other states agree with the result reached in today's opinion. So he prepares three very short paragraphs saying so.

Now, obviously, I wasn't part of the internal decisionmaking process, but I suspect that Justice Tangeman read Justice Gilbert's draft opinion and said something like: "Hey, that's awesome, I love it. How about putting in two or three paragraphs to note that the other states come out our same way?" At which point Justice Gilbert responded with something like: "Yeah, don't feel like it." Justice Tangeman says (or at least thinks): "Hey, it's only a couple paragraphs, and it's not like your five-page opinion is overly long or anything as is. How can it hurt? Can't you just put 'em in?" At which point Justice Gilbert responds "Nope. Write 'em yourself if you feel like it."

Thus leading to today's opinion.

Justice Tangeman authors a brief concurrence that reads, in its entirety: "I concur. Because plaintiffs rely heavily on out-of-state authorities in discussing this issue of first impression in California, I believe a brief discussion of those authorities is warranted. The out-of-state authorities cited by plaintiffs hold that the statute of limitations for respondeat superior liability is the same as for the individual tortfeasor. But with the exception of D.M.S. v. Barber (Minn. 2002) 645 N.W.2d 383, the extended statutes of limitations apply where they refer to particular types of actions rather than particular types of defendants. See Kocsis v. Harrison (Neb. 1996) 543 N.W.2d 164; Lourim v. Swensen (Or. 1999) 977 P.2d 1157; Dunn v. Rockwell (W.Va. 2009) 689 S.E.2d 255. This distinction warrants the conclusion that Code of Civil Procedure section 340.3 applies only to defendants convicted of a felony and not to their employers.

The court in Doe v. BSA Corp. (Conn. 2016) 147 A.3d 104 reaches the same conclusion. In applying an extended statute of limitations for sexual abuse claims to the employing organization, the court drew a distinction between statutes “not concerned with particular types of defendants, but with providing recovery for a particular type of injury.” (Id. at p. 122.) The court noted that “almost all of the courts that have concluded that an extended statute of limitations for claims involving childhood sexual abuse does not apply to claims against nonperpetrators have been confronted with statutes that expressly limit their application to claims against perpetrators. [Citations.]” (Id. at p. 123, fn. 21.) 

Because “section 340.3 was enacted as part of a statutory scheme to implement Proposition 8’s constitutional requirement that “‘“persons who suffer losses as a result of criminal activity shall have the right to restitution from the persons convicted of the crimes for losses they suffer”’” (Guardian North Bay, Inc. v. Superior Court (2001) 94 Cal.App.4th 963, 973) and expressly limits its reach to convicted defendants, I concur in the result."

And, in turn, Justice Gilbert ends his own opinion by saying: "The concurring opinion need not be concerned with out-ofstate authority. California authority is more than sufficient to resolve the issue presented. We are pleased, however, that the out-of-state authorities cited by our colleague would agree with our result." 

With Justice Yegan joining Justice Gilbert's response to the young whippersnapper.

Nothing of substantive import, of course. But when even these sort of minor disagreements can't be worked out -- just like couples who snipe at each other in public -- you can't help but wonder what else may be going on out of public view.

Because, typically, these things get worked out in a different way.

CPC Patent Technologies v. Apple (9th Cir. - May 18, 2022)

Judge Smith describes the plaintiff in this litigation as follows:

"CPC is an investment company that recently acquired a portfolio of patents related to biometric security. In February 2021, it sued Apple in the Western District of Texas, alleging that several Apple products (including “iPhones, iPads, and personal computers”) infringe patents in the portfolio."

That's certainly kinder than calling the plaintiff a patent troll.

U.S. v. Allen (9th Cir. - May 16, 2022)

You have to wonder what the backstory is on this one, no?

During COVID, lots of jury trials were shut down (obviously), but then they (slowly) restarted. By September of 2020, in the Northern District of California, criminal jury trials were back on calendar, and judges there -- like judges all across the country -- had to decide how to handle them. Some of them had everyone wear masks, some of them did live video feeds into a separate room, etc.

There was a set of general orders in the Northern District that said that the only people allowed in the courtroom were people authorized to be there. But there's also a constitutional right for the public to witness criminal trials. We don't, after all, have trials in secret. So how to balance the relevant interests.

Like I mentioned, most courts had said, okay, there's a global pandemic, so we're going to do things a little differently, but still, people were allowed to actually witness the trial. Maybe not in person, maybe over a (sometimes) sloppy video feed, but still, allowed to watch.

But Judge Gilliam -- at least in this case (and presumably lots of others) -- went a different path.

Judge Gilliam understood that we couldn't have secret trials. But he also was worried that a video feed that was uncontrolled might let people record the thing, which he didn't want. (Mind you, that'd be illegal, and maybe that's the solution -- just warn and/or punish -- but that's a separate point.) At the same time, he also didn't want people coming into the courthouse to view a collective video feed; too much of a potential superspreader event.

So Judge Gilliam decided that he (1) wouldn't allow witnesses to attend, and (2) also wouldn't let them watch via video. Anyone who wanted to watch would only get an audio feed. Nothing else.

The Ninth Circuit holds that that's unconstitutional. There's a right to actually see the trial, unless it's a special case. And the fear that someone might (illegally) record the video doesn't count. 

So the conviction here gets reversed. Just as, presumably, all the other convictions that took place (in the face of a contemporary objection, anyway) in Judge Gilliam's courtroom during the relevant period.

Which inexorably leads to the question: Why did Judge Gilliam decide to risk such a result? Why did he elect a process that was much more restrictive of public access than the vast, vast majority of other judges?

It'd be one thing if Judge Gilliam was super old, and hence uniquely concerned about getting COVID himself. But he's not; indeed, he's basically the youngest judge in the entire Northern District. (Judge Chhabria may, I believe, be a month or so younger, but still). The decision would also make sense if Judge Gilliam was historically hostile to the press or witnesses or the like, but I have no reason at all to believe that's the case.

So why make a call -- why risk all these convictions -- just because you're concerned that someone might illegally make a recording of the video feed of a routine criminal case? A call that the other judges weren't making in identical contexts?

Maybe others know. I don't. No clue.

Regardless, I suspect this is the first of a large number of cases that'll get reversed and remanded on identical grounds. So stay tuned.

Hassett v. Olson (Cal. Ct. App. - May 13, 2022)

I don't know much about the judiciary up in El Dorado county, but this is most definitely not a good look.

It was bad enough when I read the beginning of the case, in which a former trial judge becomes a lawyer on a matter in which he participated personally and substantially as a judge (notwithstanding the express ethical rule that says you can't do that). That seemed fairly shocking to me. I understand that trial judges sometimes retire, and although many go into ADR, some go back into practice. I'd have thought that such judges would be incredibly scrupulous about not working on anything even remotely associated with cases on which they were involved as a judge. Apparently not. Hence the disqualification order here.

But then, around a dozen pages in, I read that the judge actually entered the case the day after a tentative decision was posted against his client -- and, as the Court of Appeal found, the judge's "association and recusal request [an attempt to recuse the judge who posted the tentative] the night before the hearings 'were actions taken by the retired judge in this case intending to disrupt the proceedings in which tentative rulings had issued in favor of Hassett against the aligned interests of Bass and Judge Bailey’s new client Olson.'”

Wow. That sounds even worse.

Jones v. Bonta (9th Cir. - May 11, 2022)

California prohibits the sale of semiautomatic rifles to anyone under 21. Plaintiffs sue, claiming that the statute violates the Second Amendment. Plaintiffs move for a preliminary injunction, which the district court denies, and plaintiffs appeal. When it reaches the Ninth Circuit, the panel that's drawn includes a district court judge sitting by designation from the SDNY and . . . two Ninth Circuit judges appointed by President Trump, Judges Nelson and Lee.

You can probably figure out how the opinion turns out just knowing those facts.

Look for an en banc call shortly.

Martz v. Horazdovsky (9th Cir. - May 10, 2022)

Sometimes law is baffling.

In the abstract, maybe it made sense -- at least historically -- to create an arcane rule in maritime law that the maximum liability of the owner of a ship is the value of the vessel and its cargo. Back in the day, we wanted to compete with Great Britain in shipbuilding, and also wanted to protect the vital industry that shipped export commodities overseas. So even if the ship was boarded, or struck another vessel, or lost its cargo, the owner could be sure that the worst that would happen is that they'd lose the ship and whatever it was carrying. Vital protection (allegedly) for a vital industry.

But, to be clear, by "back in the day" we're talking like "back before the Civil War." That's when Congress enacted the underlying statute.

Is shipping still important? Of course it is. Witness the whole "supply chain" stuff. But economic reality is far more rational these days. There are things like insurance and diversification and risk-sharing. In turn, the law has -- thankfully -- progressed far beyond anything we understood in 1851. We now understand the social utility of negligence rules, efficient cost avoidance, and things like that. The socially deleterious blunderbuss rules of the past have, in most areas, been replaced by legal principles that make more sense. That make the world an unambiguously better place.

Admittedly, if the outdated rules of admiralty law remained in place only to distribute risk between, say, Apple and a ship owner who's toting a boatload of iPhones across the Pacific, I wouldn't especially give the issue much thought. The parties are sophisticated. They can contract around most, if not all, of the rules they don't like. And that market's generally efficient anyway; if the shipper gets a default benefit from some legal rule, then you can be sure that Apple's going to demand reciprocal benefits on its end. The allocation of risk between two sophisticated international shippers isn't something about which I'm profoundly concerned. The market has a way of (generally) working these things out on its own.

But the reach of contemporary admiralty law isn't confined to such areas. Take today's opinion, for example. It's a boating accident. A guy allegedly gets wasted at a party, drives a speedboat, kills a person, flees the scene, and then gets busted. The dead person's estate wants to sue the boat owner. Because, hey, it's your boat, and you shouldn't have let your drunk kid drive it. At which point the boat owner says: "Admiralty law, my man. You can have my crappy little boat and its worn out seat cushions (its "cargo"), but nothing else. That's fair compensation for your dead child."

For even more arcane procedural reasons (a six month "notice of claim" rule unique to this area), the district court disagrees, but the Ninth Circuit reverses.

I can fathom no reason why, in the modern era, we'd possibly want to treat boat owners in this context any differently than, say, car owners. Is shipping important? Sure. But this guy wasn't shipping, he was just jetting around on his speedboat. And even if he was, driving a car -- and/or shipping via truck -- is equally (if not more) important (to most people, anyway) than sending things on a ship. So whatever the rule is for cars should be the same rule, it seems to me, for ships. No silly little holdovers from before the Civil War when, uh, to put it mildly, there were a lot of legal principles that we've thankfully moved far beyond.

Now, if you want to protect innocent owners generally, and want to, for example, say that absent a claim of negligent entrustment, an car or boat or truck owner isn't liable for anything beyond the first $15,000 (or whatever) of injury, okay, we can have that debate. But the rule should likely be the same regardless of the mode of transportation. Without any holdovers from, say, 1851.

It's not like Congress actively thinks about these things. It's not like anyone's getting elected on a campaign motto that says they're going to bring admiralty law into the twenty-first century. No one cares. Unless and until, of course, it's your kid who gets maimed or killed. Instead, a residual holdover from a bygone and inapposite era determines liability.

There are some bad things, to be sure, about the common law. But one of the good things is that you don't typically have unchanging arcane legal rules that make no contemporary sense. Instead, judges are entitled (with appropriate respect for precedent) to change them. Which, overall, is often a good thing. Particularly if there's a statutory backstop where Congress can, if it feels like it, go ahead and change 'em back if the electorate is really of a different view.

But Congress ain't enacting this statute in this context in the modern era. Yet it gets applied in the present cases anyway.

'Cause that's the way the system works.

To the detriment of the dead girl and her family here.

Amato v. Downs (Cal. Ct. App. - May 6, 2022)

Justice Raphael's opinion today is perfect. It's relatively short (16 pages), analytically spot on, and reaches the appropriate legal conclusion. It's exactly what you want to see the Court of Appeal do.

The California Supreme Court should nonetheless grant review and reverse the thing.

I know that's a counterintuitive conclusion given the predicate. But bear with me.

There's a ton of stuff in the opinion that I'm 100% in agreement with. The plaintiff is suing because he thinks his listing agent convinced him to his house in Rancho Mirage for less than he should. The plaintiff here is an attorney, but he's an older gentleman -- he was admitted to the bar before I was even born, and I'm 55 years old -- so he has another attorney assist him in the representation. Shortly before trial, plaintiff and his attorney screwed up some procedural stuff, so the judge on their case gets miffed and holds that, as a result of these failures, plaintiff "waived" his right to a jury trial. So the judge holds a bench trial, and at that trial, plaintiff loses badly. Plaintiff then appeals.

Justice Raphael first holds that you can't take away someone's jury trial right for procedural mistakes like the one plaintiff and his counsel made, and that's exactly right. There's a list in Section 631 of the ways in which you can lose your jury trial right, that list is exclusive, and not properly submitting the "trial binder" that the Riverside Superior Court requires isn't one of 'em. So you can sanction the plaintiff and/or his counsel, or do other stuff to them, but you can't take away their right to a jury trial. Exactly right. That's what the law fairly clearly says.

I've got zero problem with that part.

But the defendant's got a creative argument. Generally, depriving someone of their jury trial right is what we call structural error (though Justice Raphael's opinion doesn't use that term), and for structural errors, you don't have to show prejudice. Depriving someone of a jury trial is one of those things. It's not only a fundamental right, but more critically, it's basically impossible to establish error to any requisite degree of certainty. How can you "prove" that a jury would decide the case differently than a judge?

So, for structural errors, it's a per se reversal rule. Same in federal court. No showing of prejudice required before we reverse and remand for a new trial.

The wrinkle here is this: At the bench trial, the trial judge granted a nonsuit based upon plaintiff's failure of proof. Now, as Justice Raphael notes, even though everyone calls it a nonsuit, that's not technically the right term; in bench trials, it's actually a Section 631.8 motion for judgment. But the concept is basically the same thing: plaintiff didn't put forward enough evidence, so defendant's entitled to prevail.

Defendant's argument is thus, essentially, that even if there was error in depriving the plaintiff of his right to a jury trial (and, to be clear, it was), no blood, no foul, since he'd have lost anyway based upon his failure of proof. So go ahead and affirm the judgment.

The problem is -- and, again, Justice Raphael gets this exactly right -- a little thing called precedent. Lots of cases have made clear that if you're deprived of a jury trial right, that's a fundamental error and doesn't require a showing of prejudice. There are lots of Court of Appeal cases that so hold, though (obviously) this panel isn't required to follow horizontal precedent in this regard if it doesn't feel like those cases are well reasoned.

But there's also a California Supreme Court case from the nineteenth century -- In re Estate of Robinson (1895) 106 Cal.493, 496 -- that's basically on point, which reversed the decision in that case based upon the erroneous denial of the right to a jury trial, holding that “[a]s this was a right conferred upon them by statute, they did not waive it by subsequently going to trial under the order of the court, or by their failure to present evidence sufficient to secure a judgment in their favor.” That one the Court of Appeal is required to follow.

Totally makes sense. Which is why I have no problem with today's opinion.

But the California Supreme Court should nonetheless take up the case for the precise purpose of overruling that portion of In re Estate of Robinson. Yes, there was an error here. But it was harmless. Plaintiff didn't have sufficient evidence to survive a nonsuit (or at least, for present purposes, we're assuming that's true, since that's what the trial court found, and there's no current contrary finding). There's no reason to believe that plaintiff would have any additional evidence available at a jury trial that he didn't already submit at the prior bench trial. So if that evidence isn't good enough, reversing and remanding for a new trial is a meaningless (and wasteful) act. Might as well affirm the judgment now. Good for everyone -- the defendant, the system (and taxpayers), and even the plaintiff. No reason to expend private and public resources on something we know has a foregone conclusion.

Is the deprivation of a jury trial usually structural error and result in per se reversal? Yes. Should that be the rule here? Nope. It is - or at least should be -- an exception to the rule.

Notwithstanding a case from 1895 that went the other way.

It might not be an issue that comes up a billion different times. But it's been a century-plus. Time to fix that tiny little mistake. 'Cause it is, in fact, a mistake. 

And the California Supreme Court is the only one that can fix it.

(Which is also appropriate since they're the ones who made it in the first place.)

Estate of Eskra (Cal. Ct. App. - May 3, 2022)

 I can summarize today's opinion in a single sentence. Okay, maybe two sentences:

"You really, really ought to read that prenuptial agreement before you sign it. Really."

Here, Scott and Brandy are getting married, and Scott already has a nine-year old kid. Scott says he wants  prenup, and the prenup says that Brandy doesn't get anything from Scott. Period. Not if they die, not if they divorce, never.

Brandy says she's super bummed at this, and tells Scott: "Hey, I'm cool with getting nothing if we divorce, but if you die, come on, dude, give me something, right?"

And here's what's interesting -- it's fairly obvious (to me, anyway) that that's indeed what happened. Brandy's not making it up. She apparently sent her lawyer an email that said basically the same thing, Brandy's lawyer sent the other side an email saying this as well, and so what Brandy wanted is fairly obvious.

The rub is this: What Scott wanted isn't undisputed at all. Brandy says she had a conversation with Scott and Scott was down for changing the agreement so that it applied only if they got divorced, not if he died. But Scott's lawyer says, nah, Scott told him to stick with the existing plan.

What we do know is this: Scott's lawyer tinkered with the draft, and took out some provisions, but the stuff he took out did not actually change the agreement. If someone uneducated just looked at the thing and noticed that there were deletions, yeah, you might have thought that they were taking out the whole "death" stuff. But no lawyer would read it that way. Because it still fairly clearly said that Brandy got nothing even if Scott dies.

But (1) Brandy doesn't even read the revised contract before she signs it, and (2) Brandy doesn't have her lawyer read the revised contract either. She just signs it. Confident that, yeah, Scott said he'd take all the death stuff out (according to her, anyway), so she assumed it was gone.

Even though it wasn't.

The trial court believes Scott's lawyer when the lawyer testified that Scott wanted to keep the prenup the way it was. So that just leaves Brandy's unilateral mistake, which doesn't cut it. Brandy doesn't get anything, and the nine-year old kid -- now a lot older -- gets it all.

So holds the trial court as well as the Court of Appeal.

I kinda feel for Brandy here. It does seem like maybe Scott (and his lawyer) are playing a little bit of a game with "revising" the contract without really revising it.

But, at the same time, she's got a lawyer. You generally want to actually use those people. Not just have 'em around doing nothing. So if you choose not to read the contract before you sign it -- or even to have your lawyer read it -- that's kinda on you, no?

Hence today's opinion. Which says the same thing with a whole lotta legalese.

Leshane v. Tracy VW (Cal. Ct. App. - April 29, 2022)

It's fairly shocking that the defendant thought there was even the slimmest possibility of success in this appeal.

Plaintiffs file an employment lawsuit, defendant files a motion to compel arbitration, and plaintiffs respond by dismissing all of their individual claims and retaining only the PAGA claim -- and PAGA claims (as you know) aren't subject to mandatory arbitration. Sound strategy. (Though plaintiffs should have figured out this strategy from the outset, honestly, and avoided the waste of time and money by only filing the PAGA claims to begin with.)

Defendant nonetheless insists that the claims must be arbitrated because dismissing the claims subject to arbitration allegedly "doesn't work" because they might, at some point, be brought in the future. Hence, defendant insists, it's still entitled to a stay of the pending lawsuit -- a lawsuit that (again) isn't subject to arbitration.

The trial court disagrees. Defendant appeals. The Court of Appeal affirms.

Of course it does. Since that's obviously -- and, I want to reiterate, obviously -- correct.

Zero chance defendant prevails. Zero.

Two possibilities. One, defendant and its counsel were just irrational, and thought they could win an absurd argument on appeal. Possible. Second, defendant and its counsel knew they'd lose, but hey, you still delay the lawsuit for a year or two while you take the appeal of the denial of the motion to compel arbitration.

Exceedingly possible as well, eh?

Lincoln v. Lopez (Cal. Ct. App. - April 25, 2022)

I was on the East Coast for a bit, so got behind on reading the daily appellate opinions. But upon my return, I found this election opinion at least marginally interesting. Not so much about the merits, but instead regarding the appellant's lawyer -- and the Court of Appeal's reaction to him.

The question was whether the trial court's opinion below was supported by substantial evidence, and as the Court of Appeal notes, it's incredibly difficult to establish on appeal that it wasn't. You've got to view all conflicts in the evidence in favor of the judgment, so unless there's a manifest failure of proof, you're basically doomed to lose. As, indeed, appellant does here.

Justice Richman was particularly harsh towards appellant's counsel for citing evidence in favor of the appellant, and for not really grasping that the critical issue is whether there was evidence in favor of the appellee. I agree with the latter, point, but personally, don't find that surprising (or unusual) the former. Sure, you've got to engage with the relevant standard, and it's super hard to establish that the decision below wasn't supported by substantial evidence. Nonetheless, it's not unusual, IMHO, to cite the evidence on one's own side, if only to provide "color" to the alleged justice of your cause. Sure, the evidence on that side might be technically irrelevant to whether there's substantial evidence on the other side, since all conflicts in the evidence are resolved in favor of the trial court's decision. But I'd be surprised if someone omitted entirely such evidence from their brief. It provides context. Color. You don't want to rely on it too much, as I'm certain the appellant did here. But you still probably include it -- at least a bit.

That said, Justice Richman is definitely correct when he says: Don't go overboard. You gotta engage with the standard. Even if you're going to lose. Gotta make the appropriate effort.

Parenthetically, what I was most surprised about was the contact information listed for appellant's counsel on the State Bar's web site. Appellant's counsel, Mark S. Rosen, has an email address at aol.com. Talk about old school, eh? Didn't even know the place still existed.

People v. Bloom (Cal. Supreme Ct. - April 21, 2022)

It's a 75-page-plus death penalty opinion. The defendant (Robert Bloom) admits that he killed his father but denies that he killed his stepmother and stepsister; nonetheless, against his wishes, his lawyer admits at trial that Mr. Bloom killed all three victims. The jury finds Mr. Bloom guilty of all three crimes and sentences him to death. California Supreme Court affirms the conviction of the father but reverses the convictions for the other two deaths, alongside the death sentence. The case gets remanded for a retrial on the other two deaths and on the death penalty, if the prosecution so elects.

The murders occurred in 1982. Mr. Bloom was first convicted in late 1983 and sentenced in 1984; after a federal court granted Mr. Bloom's habeas petition, he was retried in 2000 and sentenced to death.

It's now 2022. Four decades after the crimes. Now we're deciding whether to try again to sentence him to death. A sentence that's, practically, never going to be carried out anyway.

NRDC v. EPA (9th Cir. - April 20, 2022)

The Ninth Circuit is miffed.

It's a lawsuit brought by the Natural Resources Defense Council against the EPA. The NRDC wants the EPA to disallow the use of TCVP, which is a chemical originally developed from nerve warfare agents that's now used in pet collars to prevent fleas and ticks. The NRDC thinks that putting chemicals like this on pets that are petting by kids (who then stick their fingers in their own mouths) is a bad idea. So back in 2009, the NRDC asked the EPA -- pursuant to a statute -- to disallow the use of this chemical agent.

The statute says that the EPA has to respond to such petitions "within a reasonable time," but the EPA did anything but. It sat on its arse for five years, at which point the NRDC brought a petition of mandamus to get the EPA moving. I need not recount all the resulting delays and trips to the Ninth Circuit, but suffice it to say there was a lot going on, with the courts basically saying "Get off your butt" and the EPA responding by not exactly cracking the whip. Ultimately leading to the Ninth Circuit saying (in 2020): "Seriously, dude?! We're sick of this. Time for an order making you actually do what you're supposed to have done long ago." (Okay, the actual language was: "[T]he EPA’s years-long delay on this critical matter of public health has been nothing short of egregious. For more than a decade, the EPA has frustrated NRDC’s ability to seek judicial review by withholding final agency action, all the while endangering the wellbeing of millions of children and ignoring its core mission of protecting human health and the environment.").

At which point the EPA says, essentially, "Fine, you feel like making us decide? Here's our decision: The chemical seems basically fine with us. So there."

Which results in the present appeal. In which an already-miffed Ninth Circuit says: "Nope. Your (long belated) decision on the merits is as stupid as your delay in issuing it. Reversed. Decide again, and this time don't make moronic arguments. Oh, and get it back to us within 120 days. We're sick of your crap." (The panel's actual words: "At times, NRDC’s efforts to receive a reasoned response from EPA have seemed Sisyphean as the agency consistently delayed its decision. After NRDC had doggedly pursued this matter for more than a dozen years, when EPA finally did reach a decision under pressure of a mandamus order of our court, NRDC was justified in expecting a rational, supported, and reasoned response from EPA. EPA, though, did not provide a well-reasoned or reasonable decision. Instead, its stated reasons were cursory and often at odds with EPA’s own prior assumptions and statements. Then, in response to this lawsuit by NRDC, EPA has provided many arguments in its briefing that were never given in the record as the basis for the administrative decision. Because EPA’s denial of NRDC’s petition is not supported by substantial evidence, we VACATE EPA’s denial of NRDC’s petition and REMAND to EPA to issue a revised response to NRDC’s petition within 120 days.")

When a group of federal appellate judges think a litigant is basically toying with (and/or ignoring) them, they tend not to like that. And they're quite capable of doing something about it.

I think you see a bit of that here.

Lesson of the day: Don't hack off federal judges.

People v. Vaughn (Cal. Ct. App. - April 19, 2022)

Justice Ramirez wants you to know a lot about the vocabulary utilized by pimps and prostitutes.

In the beginning, it was limited to one word -- "blade." Which, I concede, I had not heard of before. I thought that, in the vernacular, a "blade" was a knife. Which, I suspect, it is, but not in this particular context.

As Justice Ramirez explains in footnote three of the opinion: "The “blade” (or “track”) is a street frequented by prostitutes." Got it. I had definitely heard the term "track" before, with this meaning. But blade was a new one for me. So now I understand.

After defining the term, Justice Ramirez then uses it pervasively throughout the opinion -- like, a half-dozen times. "Wilkins and Vaughn dropped Jane off on the blade in Oakland." "On the night of June 3-4, Jane was out on the same blade again." "The blade was nearby, so Jane walked there. She saw Molly on the blade." Stuff like that.

It read a tiny bit awkward, but fine. Blade equals track equals street where prostitutes gather. On it.

But then the opinion gets crazy educational.

Starting at page seven of the opinion, Justice Ramirez starts explaining the meaning of other terms used in the pimping and prostitution context. And goes on. And on. And on.

And most of these terms I've never heard of before. So I'm definitely learning. A lot.

I'll share with you this knowledge:

"A sex buyer is called a “trick” (or “T”), a “John,” or a “date.” “Trick” and “date” can also mean an exchange of sex for money. [Okay, these I knew already.]

A “P” is a pimp. “Izm” means an individual pimp’s pimping style. To “fuck with you” (abbreviated “fwu”) means to be in a pimp-prostitute relationship with the other person. A pimp calls a prostitute a “bitch”; a prostitute calls her own pimp “daddy” or “king.”

“Trap,” as a noun, means the daily dollar quota that a pimp sets for a prostitute. Thus, to “trap,” as a verb, means to make money. To “break” (or “brake”) means to get money from someone; a prostitute will break a trick, and a pimp will break a prostitute.

Jane was White; Molly was Black. “Snow” means a white prostitute. “Faggot” or “fag” means “a prostitute that’s not paying her pimp or otherwise not doing what she’s supposed to.” “Tellys” means hotels."

Wow. That's . . . a lot.

Justice Ramirez doesn't do all this simply for fun. Rather, later in the opinion, the opinion recounts a variety of text messages between the alleged pimp and prostitutes, and to understand those terms you need an (informal) dictionary. Hence the explanation.

Regardless, it's a lot of new terminology for me. Only some of which I'll remember, probably. But at least for now, I've got a whole set of new words for me to employ.

In theory, anyway. I imagine that if I ever start using any of these terms, my students (or children) will think that something's definitely not right.

U.S. v. House (9th Cir. - April 15, 2022)

In today's opinion, you've got a per curiam opinion. You've got a concurrence by Judge Graber. You've got a concurrence by Judge Christen. And to top things off, you've got a concurrence by Judge Wu (sitting by designation from the Central District of California).

Yet more evidence that the modified categorical approach -- and anything associated with it -- is redicu-complicated, even for very smart judges.

People v. Pantoja (Cal. Ct. App. - April 13, 2022)

A police officer sees a car traveling at 25 miles per hour. That seems "pretty fast" to him, even though it's within the speed limit. The officer makes a u-turn to follow the guy, and notices that the license plate and third brake lights are out, so decides to make a traffic stop.

The officer recognizes the defendant as a guy with a record, but he got of probation in 2018, so there's no basis for a probation search. There's no smell of marijuana. There's no contraband. The officer asks to search the vehicle, and the guy declines.

So the officer orders him out of the car, tells him to put his hands on his head, and pats him down.

The basis? The guy's driving in a high-crime area and "was wearing baggy clothing. He had [a] hoodie on and jeans. The hoodie naturally has bulges in it, so based upon defendant’s history of weapons, I elected to remove him from the vehicle and pat him down so I can complete the citation."

No dice. No reasonable suspicion of a crime. Search illegal, evidence suppressed.

The guy's name is Juan Pantoja.

Do you think you would be pulled out of the vehicle and patted down under similar circumstances?

Clarity Co. Consulting LLC v. Jenkins (Cal. Ct. App. - April 12, 2022)

Justice Yegan doesn't say anything in today's opinion that hasn't already been said previously. Yet it needs to be said here again:

Especially when you're an attorney representing yourself, don't represent yourself on appeal. Particularly when you lost below. Times two if you not only lost, but got sanctioned for filing a frivolous motion.

Larry Gabriel is the lawyer and defendant. He's the general counsel of a startup company. He gets sued. In a lawsuit that, to be honest, is probably going nowhere. Because the allegations against him are silly.

But instead of taking a moderate approach, he files an anti-SLAPP motion, claiming that a fairly routine breach of contract dispute involves "protected activity" under the statute. The trial court disagrees, and imposes sanctions for the filing of the motion. At which point Mr. Gabriel appeals.

At which point he and his firm get sanctioned by the Court of Appeal for filing a frivolous appeal.

He's actually fairly lucky; the sanctions to the other side were only $12,798.50, which is fairly low for the costs of defending even a silly appeal. (Plus another $8,500 to the Clerk of the Court.)

The twenty thousand hurts. But there's also now a published opinion with his name in it. Plus the sanctions get reported to the State Bar.

All for an overly aggressive response to a lawsuit he was probably going to win on the merits anyway.

Sometimes -- often -- getting a dispassionate opinion of a neutral outsider helps.

Mireskandari v. Edwards Wildman Palmer LLP (Cal. Ct. App. - April 8, 2022)

Some lessons you can learn from this opinion:

(1) Be wary about taking on lawyers as your client. If you lose, you might well be the next person they sue.

(2) The lesson in (1) is especially true if your client is -- as the trial court described the attorney/client here -- "a raging bull" who wants to file litigation that might well not succeed.

(3) The lessons in (2) and (3) are true even if you tell clients that they might not succeed.

(4) The lessons in (2), (3) and (4) are even more true if, as alleged here, you didn't tell the client that the other side might file an anti-SLAPP motion and you might be required to pay their attorney's fees. Even if you did, in fact, tell them that, make sure you tell 'em in writing. Because if they deny that you told them, you've got to face a trial.

(5) If you're the appellate lawyer trying to solve the mess resulting from (1) through (4) above, be sure to follow the rules on appeal. That's true even if you end up not being sanctioned, because, at a minimum, you don't want to have to read a published opinion that says this about you:

"However, while we have declined to impose sanctions, we must emphasize that we did not come to the point of considering them in a haphazard or spontaneous manner. (See Alicia T., supra, 222 Cal.App.3d at p. 885.) Notwithstanding appellate counsel’s contrition, her explanation implicitly admits that, faced with strained office resources and this court’s notification that no further time extensions would be granted, she made the conscious decision to file an oversized opening brief and 14-volume appellant’s appendix that she knew violated the applicable Rules of Court. The effect of that decision, as counsel must have known, was to shift the burden onto opposing counsel and this court to navigate a materially deficient appendix without the aid of proper record citations."

(6) Perhaps this goes without mention, but I'll mention it anyway: Don't just cut-and-paste huge sections from your trial court briefs. Ever. Even more so when you're filing an overlength brief. The Court of Appeal doesn't like that, and you don't want to be reading something like this:

"That decision is especially vexing, given counsel’s corresponding decision to include almost 30 pages of argument in Mireskandari’s oversized brief that appear to have been simply copied and pasted from his post-trial motions. To be sure, forfeiture rules generally bar an appellant from challenging rulings on grounds that were not raised in the trial court, but that does not give an appellant license to throw every argument from his post-trial motions into his opening brief without making the slightest effort to acknowledge our presumption of correctness or to explain why the trial court’s rulings constitute reversible error. “The public fisc is limited, and justices and support staff must carefully monitor and utilize their resources.” (Alicia T., supra, 222 Cal.App.3d at p. 885.) If Mireskandari and his counsel did not have the time or resources to do anything more than copy and paste arguments from previously drafted motions, they should not have placed the burden on this court to craft an opinion rejecting those arguments."

(I'll mention, by the way, that the appellate counsel who's getting slammed isn't some schlub, either; she's Becky James at Dykema Gossett, a certified appellate specialist -- but working out of Texas.)

(7) Finally, while we're on the subject, I'd have thought this too went without mention, but when you prepare the record, put in the index and appendix in chronological order. That means by date. Oldest first. Seems obvious, right? But look what happens here:

"We will not recount counsel’s detailed explanation of the “significant and unexpected obstacles” her office faced in completing the appendix and drafting the opening brief, including the unprecedent hardships the COVID-19 pandemic imposed on her office and staff. [Footnote follows:] One specific explanation, however, bears attention. With respect to the reverse chronological arrangement of the index and appendix, counsel notes the applicable rule provides only that appendix documents must be “ ‘arranged chronologically’ ” (rule 8.144(b)(2)(C)), but she emphasizes it “does not specifically indicate in which direction the chronology should proceed.” This, in our view, is not a reasonable reading of the rule and, in any event, the decision to use a reverse chronology made little sense in this case. Any practitioner who has read an appellate record should recognize there is a practical reason the rules mandate a chronological arrangement. A chronological arrangement allows the reader to move from the end of one record to the beginning of a subsequently-filed record—e.g., from motion, to opposition, to reply, to ruling. Counsel’s use of a reverse chronological arrangement requires the reader to retrace back through a record, then back through the subsequently-filed record, to find the beginning of that subsequently-filed record. That process is especially time consuming when the appendix spans over 9,700 pages and includes well over 100 documents, many of which are not separately indexed. Moreover, because counsel included appendices from earlier writ petitions, which were arranged in the appropriate chronological order, there are parts of Mireskandari’s appendix that are in chronological order and parts that are reversed. And, because counsel did not separately index the documents embedded in the writ petitions, many of those documents have no chronological relationship (proper or reversed) to other documents in the appendix. Suffice it to say, counsel’s decision made reviewing the appendix a needlessly frustrating and time-consuming effort."

Learn from the hard-learned lessons of others.

Here's seven good ones for the day.

People v. Bracamontes (Cal. Supreme Court - April 11, 2022)

Sure, the California Supreme Court is left-leaning in a lot of areas, but sometimes when reading an opinion (or otherwise), you don't need a weathervane to know which way the wind blows.

Here's a test: See if you can fill in the blank for the next word in this opinion, the first paragraph of which reads (in its entirety):

"A jury convicted Manuel Bracamontes of the first degree murder of nine-year-old Laura Arroyo, with special circumstances for committing the murder while engaged in kidnapping, lewd act on a child under 14, and oral copulation. A death sentence was returned and imposed. We _______."

Do you think the omitted word is (A) Affirm, or (B) Reverse.

Yep. You're right.

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.