People v. Jimenez (Cal. Ct. App. - Feb. 7, 2024)

I gotta give props to Justice Kelety. When this opinion was initially published last week, I thought: "Whoa. I understand Part II, but I'm seriously thinking deeply about Part III. Was the evidence really insufficient to sustain defendant's conviction? The guy nearly hit a cop car, drove like a bat out of hell at 60 to 100 mph (!) in a 35 mph zone for over a mile while evading a marked police car with its siren and lights on while driving on the wrong side of the road and nearly hitting other vehicles, and then crashes his car into a brick wall. The officers totally recognize the defendant as the one driving the vehicle during the pursuit, but when they get to the crashed car, he's nowhere to be found. They so testify at trial. Is that really insufficient evidence as a matter of law that the guy in fact committed a hit and run, which is what the Court of Appeal in fact held? Seems to me like the guy obviously fled."

So I thought about saying something like that, but then life got in the way, I got busy, other things happened, the whole "Biblical Flood in Southern California" thing went down, etc. etc.

Today, Justice Kelety decides to not publish Part III, even after originally not publishing the entire thing, then deciding to publish the whole opinion, and then splitting the middle to take out (IMHO) the part that totally had me wondering.

I mean, I get her point: the police didn't testify about how long it took them to respond to the collision, or why exactly Mr. Jimenez was nowhere to be found after the crash. They definitely (probably) should have.

But, I mean, come on. The guy was crazy evading the police. It's obvious (to me, anyway) that after trying out outrun 'em, and then crashing his car, he ditched the thing in one last effort to get away. Is it theoretically possible that it took the police, like, an hour to get to the car after it crashed, or that the guy really wanted to call the police and report his crash but, shucks, was just too concussed or confused to do so? Maybe. I guess. But I'd bet my left foot that the police got there really quickly after chasing the guy at 100 mph for a little over a mile, and even if the guy testified that he intended to call in the accident (which he didn't), I'd bet my entire set of feet on the fact that he wasn't telling the truth and that he deliberately fled in a (continuing) attempt to get away.

But, hey, at this point, Part III is unpublished, and -- as I noticed at the time -- the guy's sentence on Count 2 (the one reversed by the Court of Appeal) was stayed anyway. So not like it really matters at this point. To anyone.

Problem solved.

(Though I still do wonder if the Court of Appeal is really right on this one. Which I'd care more about if it mattered, which, again, it doesn't much at this point.)

Devas Multimedia Private Ltd. v. CC/Devas Ltd. (9th Cir. - Feb. 6, 2024)

I know that it doesn't matter much either way. But since senior judges on the Ninth Circuit aren't allowed to vote on en banc calls in the first place (even though they're invited to express their views internally, if they wish), I probably wouldn't have them publish something that simply says -- as Judge O'Scannlain does here -- that in a universe in which they had a vote, they'd have voted for en banc review. ("I agree with the views expressed by Judge Bumatay in his dissent from the denial of rehearing en banc.")

I mean, sure, that's great to know, and there's no real downside in saying so. But, to use an analogy, we don't allow 14-year olds (or people in prison) to vote in elections, even though they're fully entitled to participate in deliberations about whom to elect in those things, and we likewise don't have official procedures designed to record how they would have voted if they had a vote. (Which, again, they don't.)

So I'd probably just leave this one alone.

M.A. v. B.F. (Cal. Ct. App. - Feb. 5, 2024)

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City of Norwalk v. City of Cerritos (Cal. Ct. App. - Feb. 1, 2024)

I'm not entirely sure why, but I find this case hilarious.

The City of Cerritos (in LA) doesn't want a ton of heavy truck traffic. It's fine with trucks are dropping off stuff to City residents or businesses, but otherwise, it doesn't really want them to drive through the place. Noise, road damage, etc.

So it passes a law back in '74 that says that trucks travelling through the city (as opposed to "in" the city) are restricted to two particular roads. Then, in 2019 and 2020, the City amends the ordinance to remove one of those roads from the list of permissible truck routes.

Which hacks off the City of Norwalk, a neighboring municipality, because Norwalk says that after the change, the trucks started driving through Norwalk instead. So it sues, alleging the Cerritos' statute creates a public nuisance.

The trial court grants Cerritos' demurrer, and the Court of Appeal affirms, holding that Section 3482 of the Civil Code makes cities immune from nuisance liability for any acts done, as here, pursuant to a statute.

The whole thing is funny to me because it's like two little kids arguing about sharing a toy or who has to clean up their room. Just deal with it, dudes. Norwalk: If you don't like truck traffic through your city, pass your own ordinance that limits the stuff to particular routes. Or just recognize that, oh well, there are sometimes going to be trucks driving through your place. 

Or, heck, if you want, try to get the Legislature to pass a law that stops cities from doing stuff like this. I'm not sure that running to your parents -- here, filing litigation in front of a court -- is really the most productive way to try to solve this dispute.

But, hey, at least it gets resolved. "Deal with it, Norwalk."

Abney v. State Dept. of Health Care Svcs. (Cal. Ct. App. - Jan. 31, 2024)

The Court of Appeal is right, and Legal Aid is wrong. It's technically "income" to you even if you don't get the money. So if $600 gets garnished from your monthly Social Security check to pay your IRS debt, that $600 still counts as part of your monthly income to determine what welfare programs for which you might or might not be eligible.

Now, Legal Aid has a point; that's somewhat silly, because you're still poor, since you don't actually get the $600, so it seems a bit crazy to say that you're not poor because "in theory" you get an extra $600 a month (that you actually don't receive).

But, yeah, that's the rule. For better or worse.

In re: A.K. (Cal. Ct. App. - Jan. 30, 2024)

The opinion isn't really about this part, but I was struck by the final words of this sentence, which begins the Court of Appeal's statement of facts in this dependency case:

"When the minor was born in April 2022, the Agency received a report that mother tested positive for methamphetamine, benzodiazepines, and sexually transmitted diseases."

We clearly care that a mother is using drugs while pregnant. We also care, medically, if she has STDs while pregnant. You just don't usually see references to STDs in these dependency cases. It's typically all about the drugs (and/or abuse).

The opinion doesn't mention the STD thing apart from this one reference. Still, somewhat surprising, and left me wondering if having an STD while pregnant was one of the things that might get you referred for possible dependency proceedings.

U.S. v. Virgen-Mendoza (9th Cir. - Jan. 26, 2024)

This case is unusual if only because you usually don't see someone get sentenced to federal prison for trying to smuggle someone into Mexico.

Though if the reason you're trying to smuggle that person into Mexico is because he just shot and killed a police officer in the United States, yeah, that'll get you in trouble for sure.

Kinney v. City of Corona (Cal. Ct. App. - Jan. 24, 2024)

This (alleged) strategy might perhaps work for a while, but there's a serious risk of it all crashing down on you at some point.

Background: One well-known strategy was to file hundreds of separate unfair competition lawsuits against business owners in an attempt to obtain (extort?) small-scale attorney fee settlements from the defendants. That worked for a long while, but several previously successful lawyers ultimately lost their law licenses as a result.

Another well-known strategy is to do the same thing with serial lawsuits under the Americans with Disabilities Act. But that ultimately resulted in reactive measures against those participants as well, with some of them finding themselves criminally convicted.

Today's opinion from the Court of Appeal involves an (allegedly) similar strategy under the California Public Records Act. According to Justice Fields: "[The City of Corona]claimed that Kinney and Toraason were engaged in a “shakedown scheme” to collect thousands of dollars in attorney fees from numerous California public agencies based on denied requests for public records. According to City, the alleged “scheme” worked like this: A petitioner like Kinney would find an internet news article reporting a crime; the petitioner would send an e-mail to the public agency referenced in the article, requesting the name of the crime victim; when the agency denied the CPRA request “on the grounds that the information is privileged, confidential, exempt, or otherwise non-disclosable,” the petitioner would “immediately file” a “cookie-cutter” petition “accompanied by a request for a [filing] fee waiver” and asking the court to order the agency to pay the petitioner’s attorney fees. . . .

It is not clear when Kinney first made a “ransom” or monetary demand of City, but the record includes a February 15, 2020 e-mail from Higginbotham to Toraason, referencing a “settlement demand” from Kinney for $6,500. In the e-mail, Higginbotham said it was “preposterous” that Toraason could have incurred $6,500 in attorney time on the case at that point. . . .

At that point, Higginbotham believed Borchert, Toraason, Austin, and Kinney “were all complicit in a vast, statewide shakedown scheme, using the same cookie-cutter petition template, and substantially identical tactics. City claimed it discovered “a new variant on the scheme by which Austin would e-mail” CPRA requests from an e-mail-address “plainly calculated to trigger spam blockers . . . and thereby deprive public agencies of the opportunity to respond to the [CPRA] request until after a lawsuit had been filed and the ransom demanded.”"

Here, the lawyers get paid. But, after the Court of Appeal's reversal, only $2500, rather than the $43,000+ awarded by the trial court.

As I said, I suspect that (alleged) efforts like this work. Until they don't.

P.S. - I think it might be especially dangerous to try things like this with public entities. They have a lot of power. And they don't need to be economically rational in how they respond to demands that they believe are extortionate.

Center for Food Safety v. Regan (9th Cir. - Jan. 23, 2024)

The Ninth Circuit's panel opinion was in 2022, with Judge Miller filing a partial dissent. Judge Miller voted to grant panel rehearing (which was denied), and all of the judges -- including Judge Miller -- voted/recommended denying en banc review.

Nonetheless, some Ninth Circuit judge voted to take the case en banc, but lost the vote, so on December 5 of last year, the Ninth Circuit entered an order denying the petition for en banc review.

That Order from December 5 of last year was just posted today.

Oops.

Snitko v. United States (9th Cir. - Jan. 23, 2024)

I'm not one of those people who believe that the federal government was behind 9/11 or that the "deep state" (and/or Illuminati) controls the nation, but I do believe that the government substantially oversteps at times. When, in pursuit of (usually) legitimate objectives, the government goes way, way too far.

This is one of those times.

A company opened a business in Beverley Hills that rented out safe deposit boxes, with incredibly tight security. Seems reasonable. But, unlike regular banks, which also rent safe deposit boxes, this company "did not require customers to provide personal information, social security numbers, driver’s licenses, or any other form of identification in order to rent a box."

Predictably, some -- perhaps many -- of the people who rented those safe deposit boxes were criminals, who had cash or drugs or whatever that they didn't want connected to their name. Moreover, the company probably knew (or at least suspected) as much.

After taking down various individuals who had safe deposit boxes at the place, the feds decided that they wanted to take down the whole company as well. So they got a warrant and raided the place, and opened up all the safe deposit boxes. Presumably to find -- and seize -- whatever drugs and other contraband was there.

I bet there was some. Fair enough.

But the United States decided to go further. It decided to seize, and declare forfeit, every safe deposit box that had more than $5000 worth of stuff in it. Even from totally legitimate customers. Like:

• Paul and Jennifer Snitko, who used their USPV box to store legal documents, watches with sentimental value, hard-drive backups, coins, and gold jewelry. They used USPV “because [their] bank had a waiting list for a safe deposit box, [they] live in a wildfire prone area . . . and [they] require a place to store [their] wedding bands when engaging in sports activities . . . .”

• Tyler Gothier, who stored “silver and other personal property” in his box and used USPV due to its convenient location. 

• Joseph Ruiz, who stored $57,000 in cash in his box and used USPV because he was concerned that “the COVID pandemic would make it impossible for [him] to withdraw [his] funds from a bank account.” 

• Michael Storc and Jeni-Verdon Pearsons, who stored “approximately $2,000 in cash, as well as approximately $20,000 worth of silver,” along with “personal documents” in their box. They used USPV because they needed a safe place to keep the silver. 

• Travis May, who stored $63,000 in cash, $100,000 in gold, and various documents in sealed envelopes in his box, and used USPV as an “alternative location to access valuables in case of emergencies.” 

These legitimate customers filed claims forms with the United States seeking a return of the stuff in their security deposit boxes. What did the feds tell them to do? Pound sand. Instead, the United States filed forfeiture proceedings against them, seeking to keep the valuable contents.

Eventually, the plaintiffs here get their stuff back. But they have to go through extensive proceedings and litigation to make that happen. Which ain't cheap. Yet is, in my view, entirely unnecessary.

The case in the Ninth Circuit is about whether the plaintiffs can also get an order that requires the feds to destroy their records about what they found in the safety deposit boxes of these legitimate customers, and the Ninth Circuit says that they can.

But my overall reaction is to the underlying seizure proceedings themselves. I'd spank the government for its recalcitrance in giving the money back. Hard.

There's massive incentive for the federal government to want to keep seized money, even when there's a darn good chance that the assets belong to entirely legitimate people. Courts should minimize that incentive and keep the government honest. Merely giving the money back after extensive and risky legal proceedings isn't enough. There's got to be additional downsides as well.

Serious ones, IMHO.

People v. Campos (Cal. Ct. App. - Jan. 22, 2024)

I'm certain that there are many people who would categorically agree with Justice Poochigian when he says in this opinion:

"The interests of justice are not furthered by excluding truthful, relevant evidence needed to prosecute criminals."

Nonetheless, to me, that statement seems far too broad. For example, we exclude lots of truthful evidence when there's a violation of Miranda, and I personally think that opinion advances the interests of justice. More generally, I think it advances the interests of justice to exclude even accurate confessions that are, for example, beaten out of robbery suspects by the police, even if the accuracy of that confession is totally confirmed by the resulting discovery of the stolen loot at the location the beaten suspect reveals, and even if that confession is necessary for the suspect's conviction. The price is too high.

Now, in this particular case, I agree that the failure to provide post-seizure notice in the particular manner required by state law doesn't require suppression or invalidation of the conviction. I might even also agree that, as a general matter, the interests of justice are often not furthered by excluding truthful and relevant evidence needed to prosecute criminals.

But just as I wouldn't say that NBA players are over 6 foot tall -- since some are not -- I also wouldn't say (in a written opinion or otherwise) that the interests of justice are thwarted when truthful, relevant evidence is excluded.

People v. Heltzer (Cal. Supreme Ct. - Jan. 22, 2024)

Read this opinion -- or at least the first dozen pages or so -- and see whether you think the defendant:

(A) Wouldn't have done the same thing but for his initial religious upbrining;

(B) Wouldn't have done the same thing if he wouldn't have abandoned that upbringing;

(C) A mix of both (A) and (B).

(D) Neither (A) nor (B).

Personally, I think that (D) is the answer least likely to be true.

Regardless, the defendant is sentenced to death, and the California Supreme Court unanimously affirms.

People v. Fouse (Cal. Ct. App. - Jan. 18, 2024)

This is a pretty good opinion to figure out where you generally stand on the resentencing provisions of Section 1172.6, which "amend[ed] the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, or was not a major participant in the underlying felony who acted with reckless indifference to human life."

On the one hand, the crimes are (to me, at least) horrific home invasions -- plus the attempted murder of police officers while evading arrest -- and I'm more than happy for the perpetrators to be incarcerated for a relatively lengthy period of time.

On the other hand, the defendant here was simply the getaway driver, and she has already served more than 14 years in prison.

Whatchathink?

Martinez v. ZoomInfo Technologies (9th Cir. - Jan. 18, 2024)

If I'm reading the tea leaves correctly, unless there's a surprising panel draw, the era of being able to file an interlocutory appeal of anti-SLAPP motions in the Ninth Circuit is about to come to an end.

Olson v. Saville (Cal. Ct. App. - Jan. 17, 2024)

I'm totally having my students read this opinion from the Court of Appeal in my "Law of Surfing" class.

Assuming, arguendo, the Dean would ever let me teach it.

U.S. v. Marin (9th Cir. - Jan. 17, 2024)

I understand and appreciate that, on the high seas, the United States can exercise jurisdiction over "stateless" vessels. So if, for example, you're carrying a ton of drugs, you're 655 miles west of the Galapagos Islands, and your ship isn't flying the flag of -- or registered in -- any particular nation, then by not subjecting yourself to the jurisdiction of any particular nation, you're de jure subjecting yourself to the jurisdiction of every nation. So any nation can board your vessel and prosecute you for having the drugs, even if those drugs weren't necessarily intended for that particular nation. That rule likely comes out of the pirate days, and okay, I can get on board for it.

But, here, the facts seem a little different. The two people on the go-fast boat (with the cocaine) are clearly from Ecuador, and the closest landmass is Ecuador. When the U.S. Coast Guard wants to board the ship and search it, it asks permission of Ecuador, which says that it's indeed an Ecuadorian ship and gives the U.S. permission. When the Coast Guard asks the captain(s) of the ship what nationality their ship is from, they both say: "Ecuador."

But, after the Coast Guard searches and finds the cocaine, the Coast Guard again asks Ecuador whether the ship is from Ecuador, and Ecuador then says it can "neither confirm nor deny" that it's from there.

Which, according to the Ninth Circuit, means -- under federal law and permissible international law -- that the ship is stateless, and its occupants can be prosecuted by every nation in the universe.

Doesn't it seem weird, though, that prior to searching, the U.S. was allowed to do so only after Ecuador said it was a ship from Ecuador . . . but, thereafter, said that Ecuador had no idea if it the ship was from there? Doesn't this rule also give rise to easy circumvention of jurisdictional requirements? If a state can simply "refuse to confirm or deny" whether a ship is from that country, and thereby grant jurisdiction to every other nation, how is that at all consistent with fundamental fairness, and how are the occupants of that ship supposed to know that they're suddenly subject to the jurisdiction of whatever nation -- say, Iran, or North Korea -- feels like prosecuting them?

Plus, at a more fundamental level, isn't this ship obviously from Ecuador? It just seems weird to say that when every indication in the universe is that the ship's from Ecuador, we can just ignore that fact as long as Ecuador itself doesn't feel -- for whatever reason -- like responding to our inquiries about whether the ship is in fact from Ecuador, like every single objective measure unambiguously suggests.

I know that the law on the high seas is weird, and I don't pretend to be an expert on it.

But still. This seems strange.

Williams Sport Rentals v. Willis (9th Cir. - Jan. 16, 2024)

This is yet another case where someone dies on a jet ski; in this case, in South Lake Tahoe. Just like the jet ski case I discussed back in 2009, this is yet another case in which the Ninth Circuit applies the federal Shipowner’s Limitation of Liability Act and holds that the owner of the jet ski is only liable to the injured person for, at most, the value of the jet ski.

So, here, the dead person gets, at most, $5000.

This is, of course, absurd.

I know that this request will fall upon deaf ears. But would someone in Congress please file a bill to amend the statute so it doesn't apply to stupid jet skis; or, for that matter, any other tiny little vessel. A plethora of small boats are already exempt from the statute. It's crazy that jet skis -- which are tiny but do not carry "passengers for hire" -- are nonetheless covered.

But, I get it, it's only some dead people and their families. Why would Congress at all care about that.

Punchbowl, Inc. v. AJ Press (9th Cir. - Jan. 12, 20224)

Two days ago, I somewhat critiqued Judge Nelson's analysis of when circuit precedent is sufficiently inconsistent with a subsequent Supreme Court decision to no longer bind a panel.

Today, Judge Bress authors a lengthy opinion that, in my view, is exactly the right way to do about doing precisely that.

Personally, I hope (and think) that the defendant will prevail in this trademark dispute, just as it did in the district court and in the Ninth Circuit's original opinion. I'm not at all sure why the plaintiff even thinks it's worth the money to litigate this one.

But Judge Bress nonetheless thinks that the intervening Supreme Court opinion requires that the district court take another look at this one, notwithstanding the panel's original affirmance, and presents a darn good argument for that result.

Regardless, it's a good exegesis on how intervening and circuit precedent properly interact.

Tornai v. CSAA Ins. Exchange (Cal. Ct. App. - Jan. 11, 2024)

Does the trial court here know something that I don't?

Ms. Tornai gets into an auto accident with someone with a $25,000 insurance policy. She settles for the $25,000 policy limits, but says that her damages are above that. So she makes a claim under her own auto policy for an accident with an underinsured motorist.

The insurance company (CSAA) is willing to pay, but the only medical expenses that plaintiff submits are bills for a little over $30,000, and as to those, Medi-Cal paid them, at a discount, so legally, plaintiff can only recover the (discounted) amounts Medi-Cal actually paid. Plaintiff's lawyer, however, apparently refuses to provide CSAA with the documents that show how much was actually paid. The lawyer instead insists that CSAA pay a policy limits demand of $275,000, to which CSAA -- not surprisingly -- says, "No thanks."

So CSAA and plaintiff have a dispute over the amount of uninsured motorist (UM) benefits under the policy, and California law (and the policy itself) requires arbitration of that dispute. So when plaintiff sues, CSAA files a motion to compel arbitration.

Which the trial court denies. The trial court agrees with plaintiff that CSAA is just stalling, and should pay the amounts "indisputably" due right now, before arbitration. So the trial court says that the whole shebang -- bad faith plus the UM amounts due -- will be resolved in court instead of arbitration.

The Court of Appeal reverses. In an opinion by Justice Richman that seems indisputably correct. The law requires that the amount of UM payments due -- which is, in fact, clearly disputed, since plaintiff is demanding tons more than the $2,000+ CSAA has offered to pay -- be arbitrated, so, yeah, that dispute goes to arbitration.

I'm honestly not sure how the trial court could have possibly thought otherwise.

Now, it's clear that the trial court was miffed at CSAA, and thought that it was, in fact, just stalling, and hoping to benefit by delay. But at least on the cold paper record, it doesn't seem that way to me. CSAA's request for the actual Medi-Cal payment amounts -- which plaintiff's lawyer refused to provide -- seems entirely reasonable. Whereas plaintiff's claim for a whopping $275,000, right now, for $30,000 (max) in medical expenses seems a bit excessive, or at least gives rise to a legitimate dispute.

Reading between the lines, maybe it's also that CSAA was a bit sloppy in its motion to compel, since its moving papers at least ostensibly requested arbitration of the "entire" lawsuit, including the bad faith claim (not just the claim for UM benefits). CSAA made clear in its reply brief that's not what it wanted, but perhaps that confusion -- plus the purported stalling -- gave rise to the trial court's attitude towards the whole thing. Baby and the bathwater, and all that.

Still. Justice Richman says that the UM claim goes to arbitration, then we'll figure out later if there's any bad faith. Seems entirely the right way to go.

Garcia v. Tempur-Pedic North America (Cal. Ct. App. - Jan. 8, 2024)

I do not have strong qualms about the merits of this opinion. The trial court included as cots various fees for depositions that, for one reason or another, did not, in fact, go forward. That seems generally fine to me -- or at least not categorically impermissible -- for the reasons Justice Raphael identifies.

But as I read the opinion, one thing kept -- and keeps -- confusing me.

Justice Raphael repeatedly says that one of the non-party deponents, a treating physician named Dr. Tan, was served by the defendant after he died. For example: "Tempur-Pedic also requested costs for service of process on . . . Dr. Randall Tan ($306.82);" "[Defendant] represented that Tan was identified as a treating physician and served before they were aware he had died;" and "As to Tan, the court awarded the costs because there was no indication Tempur-Pedic was aware of his death when they served him."

But, as a nonparty witness, Dr. Tran needed to be personally served with the subpoena. So there's no way the defendant actually did that if he was dead.

So I went back and checked the briefs. Which made clear that what everyone is talking about are the costs of attempting to serve Dr. Tran.

Which makes more sense.

To make things clearer, I might add "attempting" to the various places in the opinion where it says that the trial court granted costs for "serving" Dr. Tran.

If only for slowpokes like me.

Munoz v. Superior Court (9th Cir. - Jan. 9, 2024)

Judge Ryan Nelson is right on the merits, but pulls a neat little doctrinal trick that's probably a bit too slick for my tastes.

Plaintiffs sue some state court judges saying that their bail was too high and seek injunctive relief. You can't do that. Eleventh Amendment. State court judges are immune.

There's an exception to this doctrine: Ex Parte Young. But Judge Nelson is right; that exception doesn't apply where, as here, there's no reason to sue the state court judges and the relief that plaintiffs seek can properly be obtained on appeal in state court. If you think your bail is too high, appeal it. State court, not federal.

All good and right, in my view.

The one problem with this position -- and the one I'm confident plaintiffs are pretty much entirely banking on -- is the Ninth Circuit's 2004 opinion in Wolfe. That case also involved a lawsuit seeking injunctive relief against state court judges (this time for allegedly unconstitutionally applying California's Vexatious Litigant statute), and although that action was largely dismissed for a variety of reasons, the Ninth Circuit held that two state court judges, were not immune from suit under the Eleventh Amendment, and indeed reversed the dismissal of the lawsuit as applied to Chief Justice George. So holding by citing . . . Ex Parte Young.

Judge Nelson's opinion expressly concedes that "Wolfe v. Strankman, 392 F.3d 358 (9th Cir. 2004), can be read to hold that the Ex parte Young exception allows injunctions against judges acting in their judicial capacity." But he responds by saying that this Ninth Circuit holding -- which otherwise would bind the panel -- "is clearly irreconcilable with Whole Woman’s Health v. Jackson, 595 U.S. 30 (2021), and thus overruled."

But here's the thing. Jackson didn't make any new law. At all. The relevant portion of Jackson simply cited and quoted from Ex Parte Young itself, which itself held that "normally" you can't sue state court judges, particularly when you can directly appeal.

No kidding. Everyone knows that already. 'Cause Ex Parte Young said it. Yet the Ninth Circuit in Wolfe said that, in this setting, you can sue state court judges. So it distinguished Ex Parte Young.

In this setting, I don't think it's right for Judge Nelson to say that Jackson overrules circuit precedent, thereby relieving the panel from its obligation to follow it. Since Jackson indisputably said absolutely nothing now. 

When Case X distinguishes Case Y, and then Case Z later quotes Y, that doesn't mean that X is no longer good law. Quoting -- and even relying on -- a prior precedent doesn't overrule a case that distinguishes that precedent. That says that this situation is different. The two are not thereby "clearly irreconcilable."

Now, it might well be that the purportedly distinguishing characteristic identified in X no longer works given Z because the same distinguishing characteristic present in X was also present in Z, and yet the higher court still came out the same way as Case Y (e.g., dismissed the suit). Fair enough. But two things. First, you've got to say that. Second, it's got to be true. And neither of those things exists in the present case. Judge Nelson doesn't identify the purported distinction in Wolfe, nor does he say -- nor is it true -- that that same distinction existed in Jackson. So the cases are not, in fact, "clearly irreconcilable" and hence circuit precedent overruled.

I readily admit that the opinion in Wolfe with respect to judicial immunity is, uh, slim, and on this particular point not especially explanatory. A fact that's probably slightly embarrassing to Judge Willie Fletcher, who authored the opinion in Wolfe and -- coincidentally enough -- is on the panel in the current case, and who joins Judge Nelson's opinion in full (an opinion that holds that Judge Fletcher's prior opinion is not good law). But from reading Wolfe, it seems to me that Judge Fletcher's point with respect to the immunity issue -- and why he (and the rest of the panel) thought that Ex Parte Young did not apply -- is because the judicial duties there were purportedly administrative, at least in part, rather than judicial, which was probably a bit true with respect to the state vexatious litigant list and is a fairly standard distinction applied to the usual Ex Parte Young rule. (An exception that explains, in part, why Ex Parte Young itself said that normally you can't sue state court judges, rather than holding that you categorically can't sue them.) Moreover, Jackson didn't involve that purported distinction at all; it was a straightforward "enjoin state judges from hearing private abortion lawsuits" claim.

In short, X (Wolfe) said that Y (Ex Parte Young) didn't apply for Reason Q, and although Z (Jackson) cites Y (Ex Parte Young), Z both didn't discuss Reason Q nor itself involve a fact pattern giving rise to Reason Q.

Which means that circuit precedent isn't overruled, and the panel is still bound.

Mind you, I think that Reason Q probably doesn't apply in the present case either. Which is to say that Judge Nelson's current disposition is likely right; the present case isn't really like Wolfe, and so the rule applied in Jackson and the "usual" rule from Ex Parte Young applies.

But that's a very different thing that what Judge Nelson says. In my view, if the facts of Wolfe come up again (e.g., in Arizona), the panel is bound to come out the same way. Perhaps, honestly, rightly so, as it might well be -- maybe not, but maybe -- that the administrative nature of a vexatious litigant list may be a legitimate exception to normal judicial/Eleventh Amendment immunity. Regardless, the panel is bound, and an en banc court has to figure out if Judge Fletcher got it right.

By contrast, Judge Nelson says that Judge Fletcher is wrong, period. That there's no distinguishing characteristic between Wolfe and the "normal" rule in Ex Parte Young, even though Judge Fletcher said there was.

But the Supreme Court in Jackson said so such thing. At all. Either expressly nor by implication.

So one might rightly say that Wolfe is distinguishable, but it's wrong to say that Wolfe was necessarily overruled by Jackson merely because they cited the exact same cases.

P.S. - On a totally unrelated point, I always find it funny when I have to say Judge Fletcher or Judge Nelson's full names. I was a clerk back when Judge Fletcher's mother was on the court, before Judge William Fletcher (I hope he doesn't mind me using "Willie" on occasion) was even appointed, so I sometimes feel compelled to say "William" lest anyone think it's "Betty" Fletcher, even though she's been deceased for some time now. Relatedly, I always say "Ryan" Nelson because Judge Dorothy Nelson is still a senior judge on the court, even though I don't think she's authored an opinion for the past year or two. Plus there was Judge Thomas Nelson, who was also on the Ninth Circuit when I was a clerk. So, in my mind, you always gotta make sure everyone knows which Fletcher and/or Nelson you are talking about. Oh, and, yet more coincidentally, guess who joined Judge William Fletcher's opinion in Wolfe? Yep, Judge Nelson. Thomas. (Not Ryan, obviously).

Sarmiento v. Superior Ct. (Cal. Ct. App. - Jan. 9, 2024)

"Sarmiento was raised by her mother and stepfather. Between the ages of five and eight, along with a group of other children, she was sexually abused by her 30-year-old stepbrother on a repeated basis. Sarmiento did not report the abuse to anyone until she was an adult.

Sarmiento’s stepfather, who she was close to, died of a heart attack when she was 13. She was hospitalized and saw a psychologist after she threatened to commit suicide by jumping off a bridge. At about the same time, she began using methamphetamine, later selling it with her brother Oscar. A few years later, while still in high school, she was gang raped at a party.

In 2013, after being arrested for selling drugs, Sarmiento completed a 120-day residential substance abuse treatment program. She maintained her sobriety for nearly six years, but relapsed in 2019 as a result of an unhealthy romantic relationship with a meth addict who used in her presence and encouraged her to join him. This led to four hospitalizations in that year and two robbery convictions in 2020. While incarcerated she completed additional courses on substance abuse, but received no treatment for her primary mental health diagnoses. She appeared to relapse again shortly before the attempted robbery charge in this case.

Sarmiento’s parole agent supervised her before her latest arrest, and was surprised that it occurred. She characterized Sarmiento as a “ ‘model parolee’ ” who followed the rules and maintained contact as required. She noted, however, that “drug use exacerbates [Sarmiento’s] mental health issues.”

My strong sense is that Ms. Sarimento -- who lives here in San Diego -- needs some help.

Here's how she came to the attention of the police:

"In this case, defendant Jeanette Sarmiento requested mental health diversion (Pen. Code, § 1001.361) after she was charged with attempted robbery arising from an incident in which she handed a liquor store clerk a note written in lipstick on a napkin saying, “Let me get the money.” The store employees did not give her any money. Instead, they called 911. According to one of the employees, “[I]t looked like she wanted us to call the police.” 

Seems fairly strongly to me like an appropriate case for pretrial mental health diversion.

The trial court -- Judge Moring -- didn't think so. The Court of Appeal reverses.

Hopefully Ms. Sarmiento can get her act together this time.

(Maybe also stay away from meth addicts in the meantime.)

Garner v. BNSF Railway Co. (Cal. Ct. App. - Jan. 4, 2024)

Back in the old days, when you saw a complaint against a railroad, it was for the typical stuff: a railway worker got injured, someone got hit by the train, a cow trespassed on the tracks, etc.

By contrast, nowadays, it's things like this one: a railway worker claiming that he got cancer from inhaling diesel exhaust, benzene, and the like.

The trial court bounced this one because it didn't think the experts satisfied Daubert, but the Court of Appeal reverses and remands for a trial.

It's never been easy running a railroad.

(Except, of course, in Monopoly.)

California Restaurant Ass'n v. City of Berkeley (Jan. 2, 2024)

Judge Friedland begins the new year with somewhat of a bang.

She generally doesn't like written dissents from the denial of rehearing en banc; e.g., "dissentals." For this reason, before today, she'd neither written nor joined one, thinking that they're somewhat unhelpful.

The operative words being "before today."

Today, she authors one, dissenting from the denial of rehearing en banc in a case holding that the City of Berkeley's attempt to ban natural gas hookups as a part of its building code was preempted by federal law.

Seven other Ninth Circuit judges join Judge Friedland's dissental. Since Judge Friedland has been on the Ninth Circuit for nearly a decade, and this is her first time writing or joining a dissent from the denial of rehearing en banc, it makes a fair amount of sense to have her author the thing. After all, it highlights the importance of the issue to have her author her first-even dissental.

Though having Judge Friedland write the thing (as opposed to any of the other judges who agree with her) does result in one slight complication. Judge Friedland drops a footnote at the outset of her opinion noting that she doesn't generally think that dissentals have a point, which is why she has never signed onto one previously. The seven other judges who join her agree with her on the merits, but not with respect to this footnote. So every other judge joins her opinion, but expressly notes that they don't agree with this particular footnote. (A complication that could have been avoided had someone else written the opinion and then had Judge Friedland join that opinion with the slight addition of her supplemental footnote.)

Still, a big day for Judge Friedland, and a way to rock in 2024.

P.S. - She almost made it a full decade. She joined the Ninth Circuit in April of 2014. If the case had taken just a few more months to resolve, Judge Friedland could have opened her opinion with "In over a decade on the bench . . ." rather than "In nearly a decade on the bench. . . ."

So close.

Rodriguez v. Garland (9th Cir. - Dec. 28, 2023)

This opinion isn't at all about delay. But the factual background of the case struck me as similar to what you typically see in death penalty cases; e.g., tons of delay, even though the government theoretically has a strong interest in getting these cases resolved expeditiously. (For death penalty cases, in having the death sentence carried out promptly rather than 30 or 40 years later; for removal cases, in having the individual deported swiftly rather than a decade-plus later.)

Here's how the Ninth Circuit recounts the facts:

"On October 17, 2014, the Department of Homeland Security (DHS) served Rodriguez with a putative Notice to Appear (NTA) that did not specify the date or time of any subsequent removal hearings. The NTA alleged that Rodriguez (1) was not a citizen or national of the United States, (2) was a native and citizen of Mexico, (3) had entered the United States near Otay Mesa, California, on approximately September 27, 2010, and (4) had not been admitted or paroled after inspection by an immigration officer. . . . DHS did not file the NTA with the immigration court until March 13, 2015, approximately five months after the NTA was served on Rodriguez.

On March 27, 2015, the immigration court issued a notice stating that Rodriguez’s first master calendar hearing was to take place two months later, on June 9, 2015. Rodriguez appeared at the hearing and, through counsel, admitted the first two factual allegations stated in the NTA. She denied, however, the remaining allegations and contested the removability charge. . . . 

The IJ then scheduled another master calendar hearing for eight months later, on February 3, 2016, and gave Rodriguez a deadline of November 3, 2015 to submit a written change to her initial pleading if she wished to do so. Rodriguez complied with the IJ’s directions and, on November 3, 2015, she filed an amended pleading in which she conceded her removability.

At the February 3, 2016 hearing, the IJ scheduled yet another master calendar hearing for sixth months later, on August 17, 2016. Rodriguez’s application for asylum, withholding of removal, and CAT protection was to be filed with the immigration court at that hearing.

But the August 2016 hearing never materialized. On July 8, 2016, the immigration court sua sponte rescheduled the hearing for March 1, 2017. The immigration court sua sponte rescheduled the hearing yet again on November 28, 2016, this time for May 24, 2017. And on May 4, 2017— three weeks before the already twice-rescheduled hearing was to take place—the immigration court sua sponte rescheduled Rodriguez’s proceedings a third time, for December 13, 2017.

At the December 13, 2017 hearing, the IJ asked Rodriguez’s counsel whether counsel had prepared an application for relief. Counsel responded by requesting additional time to review Rodriguez’s medical records. The IJ agreed to provide more time and also scheduled a hearing on the merits of Rodriguez’s forthcoming applications for relief for November 6, 2018. Because Rodriguez’s merits hearing would not take place for another 11 months, the deadline for her application for relief was set for September 6, 2018."

I'll leave out the rest, though will note that (1) Rodriguez allegedly entered the US in 2010, (2) the Department sought her removal in 2014, and (3) it's now 2023 -- and about to be 2024. (Oh, and the Ninth Circuit remands the case, so there's still a lot left to do.)

I would think that if one (or both) sides of the political spectrum wanted to get serious about removal -- as opposed to just perceptually "getting tough" (or doing nothing) -- one fairly achievable (maybe even bipartisan?) solution would be to hire more immigration judges to reduce the backlog. A ton of 'em. The Congressional Research Service recently said that we'd need to at least double the number of judges -- i.e., add 700 more IJs to the 649 currently on staff -- to clear the existing backlog by 2032. Admittedly, I don't practice immigration law (except for isolated pro bono matters), but the kind of delay I get to see from the outside seems fairly intolerable. You'd think that people could agree on doing something about it. Maybe even people whose political interests or desires normally compete with each other.

Or maybe not.

U.S. v. Galecki (9th Cir. - Dec. 26, 2023)

You've probably read about "spice" in news reports, or (perhaps) seen it in head shops. (Have I just dated myself by saying "head" shops instead of "smoke" shops? Probably.) At some level, I knew that the stuff was illegal, and that the fake "Not for Human Consumption" labels don't really work to immunize the manufacturers from legal liability. Yeah, you can say it's just "potpourri" for "making the house smell nice," but you sell it in smoke shops, not Target. Oh, yeah, and it's like a hundred times more expensive than actually potpourri. Everyone knows full well that people exclusively buy it to smoke it and get high.

So, yeah, I knew all that, and at some level, I knew that the manufacturers of the stuff might perhaps face some criminal liability at some point.

But I definitely didn't know that getting convicted earns you twenty years in federal prison.

All that money you made selling the stuff not really worth it at that point, eh? (Not to mention the moral cost.)

People v. Ramirez (Cal. Ct. App. - Dec. 22, 2023)

Before today, the police were generally only authorized to do those things that were actually spelled out in the court's warrant. So if the warrant said, for example, "The police are hereby authorized and instructed to search the house," the police could only search . . . the house.

But, today, the Court of Appeal holds that that's no longer the case. Rather, as long as the warrant says (as they all do) that the "facts in support of this warrant are contained in the Statement of Probable Cause and any exhibits, which are attached hereto and incorporated by reference," and the probable cause statement asks for something additional -- something that's NOT actually ordered by the warrant -- that's fine too.

So, here, the police asked the court to allow them to use the suspect's finger to unlock the computer, but the warrant didn't actually say "Yes" or "No" to that. No bother. It was in the probable cause part, so it's allowed.

That's not how we traditionally view warrants. They're technically orders from a court, and you're only ordered to do what they actually order you to do.

No longer, I guess.

Elden v. Nirvana LLC (9th Cir. - Dec. 21, 2023)

Spencer Elden gets photographed as a four-month old baby as he's swimming naked in a pool. Nirvana uses that photo in its iconic album cover, which depicts the baby -- including its penis -- swimming towards a hundred dollar bill on a fish hook. 

Mr. Elden has been trying to cash in on that cover through litigation for years. His present lawsuit says that the cover is child pornography, so he sues under a federal statute. The district court dismisses the lawsuit on statute of limitations grounds, but the Ninth Circuit reverses, and Judge Ikuta seems right when she says that every republication of the cover (some of which occurred within the current ten-year SOL period) creates a new accrual.

So Mr. Elden gets a remand.

Though it seems to me that he's going to lose on the merits, likely on a Rule 12(c) or MSJ (or, perhaps, at trial), because that album cover isn't "child pornography" under the relevant federal statute, which is defined as "the use of a minor engaging in sexually explicit conduct." Since, in my view, a photo of a naked baby swimming in a pool isn't a photo of a minor engaging in sexually explicit conduct. 

Particularly in the context of that baby allegedly swimming towards money on a fish hook.

I get that that's the next stage of the litigation, and not at issue in the present appeal.

But it's next.

Miller v. PG&E (Cal. Ct. App. - Dec. 19, 2023)

I'm seriously thinking that Justice Petrou might have a future career as a short story author. Check out the third paragraph of today's opinion:

"It was a typical Saturday evening in the neighborhood. It had drizzled earlier in the evening and the night sky was dark, foggy, and misty. The sidewalk was wet and crowded with people."

I'm so excited to hear what happened next!

(Actually, the only thing that transpired was that a woman tripped on a metal plate that was covering one of PG&E's underground utility vaults. Not that thrilling. But I'm confident that Justice Petrou's next short story will be exponentially more exciting.)

The prior opinion was unpublished, but today, she published the thing. Which, of course, makes her a . . . published author.

Congratulations.

People v. Diaz (Cal. Ct. App. - Dec. 18, 2023)

Justice Wiley authors a lengthy opinion (for him) that discusses and applies 22 pages of legal doctrine. But I can summarize the key practical lesson that I garnered from the thing in a single sentence:

Don't commit a cold-blooded murder in broad daylight with witnesses if you have a very distinctive neck tattoo.

Otherwise they'll pretty much almost certainly catch you and throw you in prison for life.

As here.

People v. Rojas (Cal. Supreme Ct. - Dec. 18, 2023)

To be honest, when I first read the question presented, I thought I was going to come out the other way in this one.

Proposition 21, adopted in 2000, increased the penalty for gang-related murders and mandated the death penalty or LWOP for anyone convicted of murder while "an active participant in a criminal street gang, as defined in subdivision (f) of Section 186.22" (if committed to further the gang). Prop. 21 also says that it can't be amended except by the voters or by a two-thirds vote of the Legislature.

So here's the question: Can the Legislature narrow the definition of a criminal street gang in Section 186.22 for purposes of Prop. 21 without a two-thirds vote? (Which is what the Legislature indeed purported to do, by majority vote, in 2021.)

The typical rule here is that if a statutory reference to another statutory provision is specific, then the definition embodied in that second provision is "locked in" as of the date of the second statute's passage for purposes of that subsequent statute. Whereas if a reference is "general" -- for example, to the entire body of common law, or something like that -- then the reference isn't locked in, and can change over time.

When first presented, I thought the Attorney General would have the better of the argument here. The reference in Prop. 21 seems awfully specific to me. Indeed, I can't think of anything much more specific. So it seemed to me like the voters wanted that definition locked in.

Which is how I would have probably come out in this one. Which in turn would have meant that I'd have written a solo dissent, since the California Supreme Court unanimously comes out the other way.

Except for one thing. Something that, for me, is dispositive. Something that, for better or worse, I learned only more than halfway through Justice Liu's opinion.

Here's the thing that changed my mind.

In a couple of places in Proposition 21, it expressly locks in existing law. For example, Section 14 of the proposition, which involved a change in the "three strikes" law, reads: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act." Similarly, Section 16 of the thing says: "Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994 General Election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by this act."

That makes a huge difference to me. The people who wrote Prop. 21 knew full well how to lock in the existing statutory definitions when that's what they intended. They did so in multiple places, but not here. That's pretty damn good evidence of their intent, in my view.

So if that's their intent, as evidenced by the statutory text itself, I'm cool with that. That's the right way to view the statute, and that's the way I'd interpret it.

Which is why, in the end, I'm on board for the California Supreme Court's opinion.

Mind you, it's still somewhat tough to square that decision with precedent, which has found statutes "specific" (and hence locked in) in a wide variety of settings that look pretty darn similar to the case here. Similarly, I'm not really sure that Justice Liu's opinion really ever persuasively responds to what seems to me the obvious policy argument, which is that if the Legislature can narrow the scope of the gang definition, then the two-thirds requirement is essentially meaningless, since the Legislature could essentially repeal Prop. 21 entirely by changing Section 186.22 to define a gang in such exceptionally narrow terms that it never applies -- thus making Proposition 21 entirely moot.

Those are still problems for me, and serious ones.

But, hey, the people who write propositions are typically super smart. If they write the thing so that various definitions are expressly locked in, whereas others aren't, well, I'm going to operate under the assumption -- an entirely reasonable one, IMHO -- that this decision was deliberate, and interpret the statute accordingly.

Makes sense to me.

People v. Lagunas (Cal. Ct. App. - Dec. 12, 2023)

Defendant is driving drunk, fails to negotiate a turn, and runs over and kills a six-year old girl. Pretty egregious. He's charged with second degree murder. He wants the jury to be instructed on gross vehicular manslaughter while intoxicated, which is a lesser offense, and of which he's pretty clearly guilty. But the California Supreme Court has said that even though you generally have a right to have the jury instructed on lesser included offenses, gross vehicular manslaughter while intoxicated isn't a lesser included offense of second degree murder because the former requires that you be driving whereas, in other types of cases, you can be convicted of the latter without driving a vehicle. Never mind the fact that, here, there's zero doubt (or dispute) that the defendant was driving, and that's the only way he can be convicted.

Defendant gets convicted at trial, and sentenced to 15 years to life. He reiterates his challenge to the failure to instruct on lesser included offenses, and the Court of Appeal -- not surprisingly -- follows the California's Supreme Court precedent. But adds the following:

"Lagunas argues: “Criminal courts are not supposed to be gambling halls where juries are faced with all or nothing verdicts.” Lagunas claims the prosecution “engineered an all or nothing case by only charging second degree murder, betting that no jury would let appellant walk free after causing the death of an innocent little girl.” We are not taking a position on this oft-raised argument, but we are publishing this opinion to make clear that this argument is more properly directed to the Legislature."

Which is, I guess, theoretically true -- once the California Supreme Court decides something, barring its reconsideration of this issue, the only thing left is to ask the Legislature to change the law.

But I'm fairly sure that the class of people who drive drunk and kill people don't exactly have awesome lobbyists in the California Legislature. Even if they did, I strongly doubt that, regardless of the merits of the argument, many elected officials would be super interested in legislation that might perhaps benefit individuals who drunkenly killed little girls. Which is not exactly what you want as your campaign slogan, and what you're probably hugely worried might be your electoral opponent's campaign slogan against you.

But as a "Talk to the hand" argument, sure, it doctrinally works.

Stanard v. Dy (9th Cir. - Dec. 12, 2023)

It's slim pickings in the California appellate judiciary lately, with a single opinion in the last several days from the Court of Appeal and only a couple from the Ninth Circuit. This one nonetheless struck my eye not because of any complicated doctrinal discussion, but rather from the caption. It lists the plaintiff's name as "ROBERT A. STANARD, AKA Robert Allen Stanard." Which I guess I understand; sometimes he's known as Robert A. Stanard, and sometimes as Robert Allen Stanard.

But I'm not sure why there's an AKA. I mean, sure, I'm confident he's "also known" as Robert Allen Stanard, because that's (presumably) his full name. Sometimes he uses Robert A. Stanard, and sometimes he uses Robert Allen Stanard. Moreover, on occasion, I imagine he just goes by Robert Stanard. Maybe even just "Bob". (Bobby?)

I get AKAs when the guy uses a different name entirely ("Ron Johnson"), or perhaps a moniker ("Slash"). But if I file suit, it just seems strange to say "Shaun P. Martin, AKA Shaun Martin, AKA Shaun Patrick Martin." Unless we're adding AKAs to every single lawsuit, which just seems weird.

Anyway. Robert Stanard. A man, apparently, of many names.

People v. Ehmer (9th Cir. - Dec. 7, 2023)

Would you like to spend your entire afternoon reading a book-length opinion about a particular criminal prosecution?

If so, well, you're in luck. Here's 160 -- yes, you read that correctly, 160 -- pages of single-spaced text that affirms the convictions of four defendants for forcefully occupying the Malheur National Wildlife Refuge in eastern Oregon in early 2016.

This particular missive was over three years in the making. The case was argued in June of 2020 and here we are with an opinion in December 2023.

You can read the whole thing if you're keenly interested in what it's about. I can nonetheless give you a hint by letting you know the identity of one of the amicus submissions filed on behalf of the defendants, which was filed by: "Amicus Curiae Idaho Political Prisoner Foundation and The Real 3%ers of Idaho."

That's a clue.

People ex rel Schlesinger v. Sachs (Cal. Ct. App. - Dec. 4, 2023)

When I first read this opinion, I thought: "Duh. That's so obviously right." Which is a testament to how articulate Justice Sanchez was in writing the thing.

But, now, upon reflection, I'm not so sure he's right. (Even though there's do dissent.)

It's an election dispute: Are these three particular members of the Mission Viejo City Council still part of the City Council or not? The part about Judge Sanchez's opinion that seems so obviously and clearly right is that (1) these three members were elected in November in 20218, (2) they were expressly elected to two-year terms, and (3) they didn't run for reelection in November 2020. 

So, after November 2020, they are obviously no longer members of the City Council. Right?

Duh.

So when the trial court said, in 2022, that these three were no longer entitled to hold that office, it seems clear that the trial court's right. Which is precisely what the Court of Appeal's opinion says as well.

But the truth, I think, is a bit more complicated than that.

Because, yes, these three were elected in 2018 for two year terms, and didn't get reelected in 2020. But here's the wrinkle: that's because (for complicated reasons) there was no election in 2020.

Justice Sanchez says that doesn't matter. And he's got a point. They were elected to two-year terms. They were on the City Council when the City Council voted to cancel/postpone the 2020 election. Indeed, all three of them voted in favor of that decision. Yes, the normal rule -- set forth by statute -- is that if there's a vacancy in an office, the prior officeholder gets to stay on until the successor is elected. But the most persuasive part of Justice Sanchez's opinion is when he says that it can't possibly be the rule that this statute allows members of the City Council to extend their own terms by cancelling the subsequent election. That'd be crazy in a democracy, right? It'd seem almost Trumpian. (My words, not Justice Sanchez's.)

So, when I read all that, my reaction -- again -- was: "Yep. Clearly right."

But then I thought some more. Which is generally a good thing.

'Cause here's the thing. There wasn't an election in 2020. So after the two-year terms expired (in 2018), under the Court of Appeal's rule, there (1) wasn't anyone elected to these positions on the City Council, and (2) the old officeholders were automatically booted out.

At one point, Justice Sanchez's opinion tries to make hay out of the fact that these three officeholders didn't run in 2020, saying "Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection." Well, yeah, kinda, but mostly not -- though I have to be honest, Justice Sanchez's opinion on this point takes multiple re-readings (at least for me) to understand the underlying facts. There were five seats on the City Council. Two of these seats were indeed up for reelection in 2020, but not the ones held by the three people at issue. So, yeah, there was an election for the two seats whose four-year term was up in 2020, but not for the seats held by Sachs, Bucknum, and Raths. Those three seats didn't get an election at all. Which is why the three (understandably) didn't run for 'em. They already held those seats, there was no election for them, and state and city law said that vacancies (if any) would be held by the incumbants until a successor was elected.

Viewed in that light, it's hard to see why the failure to run for these three seats should somehow be held against the three.

That still leaves Justice Sanchez's (very good) point that you shouldn't be allowed to hold on to your two-year seat by the mere expedient of cancelling the election for your replacement at the end of your term. Now, in this particular case, there was probably a good(-ish) reason for cancelling the election, so it wasn't just a case of three officeholders scamming the system. But I still take the general point, which is that the "vacancy" trick would be a gaping loophole if it indeed worked like these three say.

But, upon reflection, I'm not sure that the flip side isn't equally (or even more) pernicious.

As I see it, under Justice Sanchez's rule, you can effectively vote your opponents off their seats. Say, for example, that your party has 222 seats on a particular legislative body that has a total of 435 seats. The other party -- with 213 members -- is being a pain in your behind. Everyone has two year terms. After this opinion, no problem, right? Just cancel the upcoming election for those 213 seats. Now, all those 213 people don't have an election to run in, and their terms automatically expire. Boom! Now you have all the remaining seats, right? You've just taken over 100% of the legislative body.

That's not just a hypothetical: the same sort of thing seems like the net effect in Mission Viejo, too. As I read the opinion, after the 2020 election, once the three were gone, there were now only TWO members of the City Council. Last ones standing. One hundred percent control.

That seems as dangerous -- or certainly close to it -- as people voting themselves in office by cancelling an election.

Plus, I'm unclear on one of the last things that Justice Sanchez says about the whole "vacancy" thing (the statute). He says at the end of Section B:

"In the present case, the holdover provisions in section 57377 and the Mission Viejo Municipal Code would have permitted Sachs, Bucknum, and Raths to stay in office temporarily past the expiration of their two-year terms in November 2020 until their positions could be filled. Under Government Code section 36512, subdivision (b), a city council shall fill vacancies in an elected municipal office within 60 days of the commencement of vacancy either by appointment or by calling as special election. Thus, Sachs, Bucknum, and Raths would have been permitted to holdover in office only for so long as it would take to call and hold a special election or to have the city council meet and appoint their replacements. Mission Viejo did hold a municipal election in 2020 but Sachs, Bucknum, and Raths did not run for reelection. Under the circumstances, the holdover provisions did not extend their two-year terms of office to four years."

I get the concept, but not the application here. The Court of Appeal says that the statute does let the three councilmembers stay in office, temporarily. Okay. For how long? The answer (according to the opinion): "until their positions could be filled." Normally, that'd be 60 days after the vacancy, either through appointment or by special election. So I get that the Court of Appeal is saying that they could stay in office for a maximum of 60 days -- more accurately, 60 days if by appointment, or 60 days to call for an election then some additional months to actually have the election -- and at that point, their successors would be elected (or appointed).

But here's the thing: That didn't happen here.

The City Council, as far as I can tell from the opinion, didn't appoint anyone new. (Or at least the opinion doesn't mention it.) Plus, it didn't call a special election: the opinion says that the next election was in November 2022. 

If that's the case, then these three positions could not, in fact, be filled until November 2022. Not under what the City Council actually did, anyway. So even under the Court of Appeal's own caveat, doesn't that mean these three got to stay in until at least then -- directly contrary to it's conclusion that they weren't, in fact, entitled to hold office until November 2022?

Maybe I'm missing something. That's distinctly possible. Should there have been a special election or appointment? Seems so (at least to me). But as far as I can tell, there wasn't. If there was a special election (or appointment), sure, these three should definitely be bounced once there successor was selected.

But if, in fact, there were no successors (at least until November 2022), then it seems to me like the statutory "vacancy" provisions in fact apply. Perhaps for super good reasons, lest there be an ability to kick out (at least potentially) your opponents on the legislative board.

Those are my thoughts.

Even though, again, at the outset, I thought that Justice Sanchez was definitely right, and that there's no way that someone expressly elected for a two-year term could possibly be allowed to stay on for a full four years.

Gutierrez v. Todasto (Cal. Ct. App. - Dec. 1, 2023)

You're driving along the I-5 (or whatever) and all of the sudden an ambulance negligently sideswipes your vehicle. How long do you have to sue?

The normal rule is that you have two years. But the Court of Appeal holds that since it's an ambulance, it's providing "medical care" so you're subject to MICRA, and only have one year to sue. Same as any other "medical malpractice" case.

Justice Bromberg disagrees, and his dissent is fairly persuasive to me. 'Cause I was having the same sort of thoughts that he articulated when I was reading the majority opinion myself.

Full disclosure, though: Twenty or so years ago, I did a little work alongside then-not-a-Justice Bromberg. He was absurdly smart then, and although this is the first dissent I've seen him write since being appointed to the Court of Appeal earlier this year, he clearly hasn't lost his touch in the meantime.

Rattary v. Favro (Cal. Ct. App. - Nov. 29, 2023)

I actually think that the core problem here (if any) were the jury instructions, not the counsel's closing argument. If the instructions were right, then the trial court's admonition that counsel's arguments aren't the law (and to follow the instructions instead) would have solved the problem. By contrast, if the instructions were wrong, then reversal is probably required anyway -- regardless whether counsel for defendant made an argument based on those instructions during closing.

It's also somewhat weird to have an opinion that esoterically talks about the underlying legal issue that went to trial -- here, whether the risks to the plaintiff firefighters were something other than the inherent dangers of their job -- without any recitation of the actual facts of the case. Those are generally relevant, no? There was a whole trial, after all. Maybe a paragraph or two (or more) about what actually happened that gave rise to the lawsuit would be a nice background -- or introduction -- to the underlying legal issue, rather than a purely esoteric discussion of the doctrine untethered to any actual facts.

But, yeah, I could see how one might find the instructions here confusing (or inaccurate). Potentially, anyway. (Whether the jury was, in fact, likely confused by them would require me to know a lot more about the actual facts of the case and/or evidence at trial than is available here.)

In re Banks (Cal. Ct. App. - Nov. 27, 2023)

There's a lot to be said for this opinion. But, to be honest, there's probably a lot to be said for the other side as well.

It's a prison drug smuggling case. There are lots of those. Moreover, the facts here probably happen a dozen or more times a day.

Someone send a package to a California inmate using a fake return address. Why the fake return address? Because the package contains drugs. (In this case, Suboxone.) Prison packages all get inspected (duh), and the person sending it clearly knows that, so the drugs are concealed. But prison officials discover the drugs notwithstanding the attempted concealment.

They can't prosecute the person who sent the package because they don't know who it is and really have no way to find out (as long as they, smartly, left no fingerprints or DNA).

So they charge the inmate. Not criminally, but with a rules violation. The guy -- Mr. Banks -- loses 180 days of custody credits, plus loses some privileges.

He files a habeas corpus petition. His position is a fairly straightforward one: I didn't do it.

There you pretty much have it. There's no direct evidence that Banks asked for the narcotics to be sent to him. Pretty much obviously, because (1) we don't know who sent 'em, and (2) Banks says (duh) he didn't do it.

But is the circumstantial evidence enough? 

Most people don't unilaterally send drugs to inmates. That's just not really a thing, honestly. It's pretty much honestly a two-way street the overwhelming majority of the time.

But, hey, maybe some people do. At least sometimes. Maybe it's a birthday thing. Maybe they're just being nice. Just because you get something in the mail doesn't necessarily mean you asked for it.

Or, conversely, maybe the sender hates the recipient. Is trying to actively get 'em into trouble. I'm sure that happens at least sometimes.

So what do you think? Is the circumstantial evidence enough?

The Court of Appeal says: Nope. You gotta have more. Just getting drugs addressed to you in prison doesn't mean you were involved.

Which, as I said, in some ways, I understand. It could definitely be the unilateral act of someone who likes (or dislikes) you. That's a definite possibility, so I can see why the Court of Appeal comes out the way it does.

But, in truth, if this is indeed, the law, then man, people are definitely going to start sending a ton more drugs to prison. Because why not? It's easy to use a fake address, and at least sometimes, the officers will not discover the stuff. So you'll 100% get away with it. And if the inmate can't be charged either, it's a total no-brainer. Give it a shot.

Sure, don't be a moron. Don't use your own name. Use a fake return address. Hide the stuff as best you can. Wear gloves. Don't lick the stamp -- use water. And don't be an idiot and talk to the inmate about this on the (recorded) jail house phone. Just do it.

And, presto, the inmate has an immensely valuable jailhouse commodity. Or an easy-ish high himself.

Personally, if the drugs were concealed -- as they were here -- I'd normally find that fairly powerful (albeit circumstantial) evidence that the inmate was in on it. Because if they were successfully hidden from the officers, then unless the inmate was in on it, they'd likely be hidden from the inmate and well, which sort of defeats the purpose of the whole endeavor.

That said, I totally get the flip side as well. If this counts as sufficient evidence, then people should definitely send "hidden" drugs to inmates they hate. Because then the officers will (hopefully) discover them and, boom, add another half-year to the guy's sentence.

It seems to me like both options here have really big downsides. But you're pretty much forced to select one or the other as your controlling legal principle.

Because this kind of thing likely happens, I suspect, a lot. I have little doubt that, most of the time, it's the product of an express or implied agreement involving the inmate.

But not all the time.

So what solution?

It's a toughie.

For now, at least, the answer is: No punishment.

So ship away. Largely with impunity.

Z.V. v. Cheryl W. (Cal. Ct. App. - Nov. 22, 2023)

I procrastinate as much as anyone. Nonetheless, a notice of appeal is super easy to prepare and file. I don't understand why people wait until the last minute to file one.

Like here.

People v. Banks (Cal. Ct. App. - Nov. 20, 2023)

"Doe was born in 2003. She lived with her mother in Oakland. Doe’s mother was abusive toward her and when Doe was 10 years old, her mother “kicked her out of the house.” When Doe was 11 years old, she became a prostitute. The Sacramento Sheriff’s Department arrested Doe and returned her to her mother. She was not welcome there and Doe returned to a life on the streets.

Doe continued to work as a prostitute. She worked for her first pimp at the age of 12. She left him when he became violent. She worked for a second pimp but left him after he too, became violent.

In September 2018, Doe met appellant. At that time, she had been working by herself as a “renegade,” that is, a prostitute who works without a pimp. Doe was 14 years old. Appellant was 35 years old. Doe trusted appellant and gave him her telephone number. Later that same day, appellant picked Doe up in his Jaguar and took her shopping for boots. As they were driving, Doe received a telephone call from a police officer. Appellant immediately changed Doe’s phone number without her consent. 

Doe began working as a prostitute for appellant that same day. Appellant set the rules that Doe was required to follow. He expected her to hold a door open for him. When she did not, appellant got mad and raised his hand like he was going to hit her. He also had rules regarding how Doe was to dress and wear her hair. He told Doe to wear different colored wigs every night, as well as revealing clothing, and high heel shoes. He told her to call him “Daddy.” He controlled what she could and could not do, who she could speak to, when she worked, when she slept, and when she ate. He physically battered her on three occasions."

An 11-year old prostitute. Just: Wow. 

Tak Chun Gaming Promotion Co. v. Long (Cal. Ct. App. - Nov. 17, 2023)

The Court of Appeal makes only one edit to this published opinion, and it softens it. A tiny bit.

"It is ordered that the opinion filed herein on October 26, 2023, be modified as follows:

On page 11, in lines 5 and 6 of footnote 4, delete the phrase “Tak Chun distastefully implies” and replace it with the phrase “Tak Chun’s comparison could be read to distastefully imply” so the full footnote reads as follows:

Tak Chun’s comparison to our Supreme Court’s decision in In re Marriage Cases (2008) 43 Cal.4th 757 is ill conceived, for this decision was an acknowledgment that persons of different sexual orientations are entitled to the equal protection of the law authorizing marriage rather than, as Tak Chun’s comparison could be read to distastefully imply, an illustration of a “substantial shift of public acceptance or morality” in California." 

Escamilla v. Vannucci (Cal. Ct. App. - Nov. 16, 2023)

My general rule is this: Don't sue lawyers for malicious prosecution. Pretty much ever. You're much more likely to get SLAPPed than you are to actually prevail.

Like here.

People v. Villegas (Cal. Ct. App. - Nov. 15, 2023)

Imagine making the following call to your client after today's opinion by the Court of Appeal:

"Good news! We won part of our appeal. We reduced your molestation sentence by 30 years!

Now your sentence is only 172 years to life."

Nicoletti v. Kest (Cal. Ct. App. - Nov. 14, 2023)

When it rains in Los Angeles, there are sometimes (often?) places in which there's a visible current of water. Maybe on the street, maybe on the sidewalk, maybe in a driveway.

Here's two things you should know:

(1) Don't walk there. Currents are often surprisingly powerful. They can knock you down and/or push you downstream. You can potentially be severely injured, or even killed. Walk around it.

(2) If you ignore (1), you can't sue the property owner. It's an open and obvious danger.

Act accordingly.

California Const. & Indust. Minerals Ass'n v. County of Ventura (Cal. Ct. App. - Nov. 13, 2023)

It's been a lazy series of days for the Ninth Circuit and California appellate courts lately. Before today, the Ninth Circuit published a grand total of two opinions in the last ten days. And on Thursday and Friday, the Court of Appeal published . . . nothing. Tough to talk about published opinions that don't exist.

Today, at least, sees one published opinion from the Ninth Circuit, and (thus far) another one from the Court of Appeal. The latter is slightly interesting. Usually, environmental challenges are brought by anti-development or wildlife advocates; for example, to stop a housing or commercial development.

But this opinion involves the exact opposite.

Ventura County passed an ordinance that set aside 163,000 acres of less developed land so that wild animals can roam around without being disturbed by human activities. A pro-business entity -- the California Construction and Industrial Minerals Association -- sued, claiming that the ordinance was, among other things, inconsistent with the California Environmental Quality Act (CEQA), which, as you likely know, is a pro-environmental statute. According to the plaintiff, the County had to do an extensive study before setting aside the land to protect wildlife.

The trial court dismissed the lawsuit, and the Court of Appeal affirms. Setting aside land for wildlife does not harm wildlife. That's basically the point of two categorical exemptions from CEQA. (Exemption No. 7: "Actions taken by regulatory agencies as authorized by state law or local ordinance to assure the maintenance, restoration, or enhancement of a natural resource where the regulatory process involves procedures for protection of the environment." Exemption No. 8: "Actions taken by regulatory agencies, as authorized by state or local ordinance, to assure the maintenance, restoration, enhancement, or protection of the environment where the regulatory process involves procedures for protection of the environment.") Plus the "common sense" exception, which seems equally applicable here.

Sometimes people file CEQA actions merely to delay things, even when there's not a high likelihood of success. Perhaps that was the goal here. Or perhaps the plaintiffs radically poorly assessed the probability that they would win this one.

In re Marriage of Motiska & Ford (Cal. Ct. App. - Nov. 8, 2023)

Even from just reading the opinion -- which forcefully argues in one particular direction -- I can definitely see both sides of this dispute, and why each might well be reasonable. But, on the whole, I probably think that Justice Streeter is right.

It's a family law dispute, so a tiny bit of background is probably helpful. In California, community property gets split 50/50 on divorce, whereas separate property goes 100% to the owner. But sometimes, separate property (say, an inheritance) gets used to fund a community asset (for example, as a down payment for a house). In that event, the amount of the separate property "gifted" to the martial estate gets refunded upon divorce to the separate ownership of the contributing spouse.

There are lots of reasons for that rule, and it's fairly well-established.

Today's opinion, however, involves a slight twist on the typical factual setting.

One spouse owns a company -- call it Company A -- before marriage. So that's his separate property. During the marriage, Company A becomes Company B. Basically the same business, but a different name. (He's probably doing this for asset protection reasons, because Company A is a sole proprietorship, which has individual liability concerns, but his motive isn't really all that important to our analysis.)

Now, if the spouse gifted Company A to Company B, he'd be entitled to a refund (upon divorce) of the value of the separate property (A) he contributed to the marital asset (B). But, here, he didn't do that. It wasn't a gift. Rather, he sold Company A to Company B.

Well, then, you don't get a refund. It was a sale. You already got as your separate property whatever the marital asset (B) paid for A.

But here's the rub: Company B paid exactly $1 for Company A.

We all know why they did it that way. It's nominal consideration. They want it to be a sale (rather than a gift or merger) for liability and other reasons, but they also want the sale price to be meaningful in order to avoid transfer taxes or other complexities. So it's essentially a gift, but it's nonetheless legally a sale.

There's zero doubt that Company A was in fact worth tons more than $1. But that's nonetheless what the sale price was. Do you get a refund of separate upon divorce, or not?

The Court of Appeal says: No, you don't. It was a sale. You set the price. So that's what it was worth. Period. It was a sale, so no contribution right upon divorce.

As I said, I get that. It's an overly formalist answer, because I'm sure that there was, in fact, value to A, and the nominal purchase price essentially was a gift -- in anything but name. Hence the argument that the usual contribution rules should apply.

But, in the end, I'm persuaded by the old aphorism -- which, to be clear, is found nowhere in the Court of Appeal's opinion -- that "you pays your money and you takes your chances." The spouse here called it a sale and set the price at $1. That was his call. When you call it a sale and say that the value of A is $1, well, okay then, that's what we'll find. The fact that the truth is probably otherwise doesn't really matter at this point. You thought, and said, otherwise at the time. Your call. Sorry it didn't turn out so well for you in the end, but that's life.

Maybe next time, call it what it actually is, and the result would be different.

Or, perhaps, see a lawyer before selling your business to yourself. One who knows a little bit about family law, maybe. Because it might well matter. As it did here.

Coronavirus Reporter v. Apple (9th Cir. - Nov. 3, 2023)

I'm not really sure why this opinion meets the standard for publication.

Plaintiffs want to sell apps called the "Coronavirus Reporter" and "Bitcoin Lottery" on Apple's App Store. But Apple doesn't allow bitcoin apps at all, and does allow COVID apps unless they're from a recognized health entity.

So plaintiffs sue. They (and their counsel) file a slapshot complaint that alleges antitrust violations with fifteen different alleged "relevant markets" and breach of contract even though they can't identify any part of the contract that Apple (which wrote the thing) allegedly violated. The district court dismisses the suit, and in a dozen pages, the Ninth Circuit affirms.

It's a pretty straightforward case, and it loses for fairly straightforward, easily-applied reasons.

No harm in publishing the thing, I guess. No real benefit -- that I can see, anyway -- either.

Hanagami v. Epic Games (9th Cir. - Nov. 2, 2023)

You can't copyright a musical tone, but you can copyright a musical composition -- or even a particular set of a dozen or so musical tones put together in a particular way.

Similarly, you can't copyright a particular human pose -- e.g., hands on your hips -- but you can copyright a particular set of human poses choreographed together in a particular way.

So holds the Ninth Circuit, which reversed the district court's dismissal of a complaint alleging that the makers of Fortnite had illegally copied one of his copyrighted dance moves for an "emote" available in the game.

You can read Judge Paez's 28-page, single-spaced opinion if you'd like. It's well-crafted and smart.

Or, if you have less time, just look at the following YouTube video, a link to which is contained in one of the footnotes of the opinion and which was created by counsel for the plaintiff. The video compares the Fortnite emote at issue to portions of the copyrighted dance moves.

https://www.youtube.com/watch?v=vXYDr9o_FJY

Pretty darn similar, eh?

The old saying is that a picture is sometimes worth a thousand words. To me, the video here is worth the 7341 words in Judge Paez's opinion.

Maybe even more.

Zachary H. v. Teri A. (Cal. Ct. App. - Nov. 1, 2023)

It saddens me to know that there are cases, like this one, in which a son obtains a restraining order against his mother. I've read a ton of DVRO cases over the years, obviously, but don't recall seeing a situation like that before today.

Not that children can't potentially fear -- or be harassed -- by their parents. Still. It's depressing to know that things sometimes come to that.

To make things worse, after I read a tiny line on page 12 of the opinion, I learn that the mom also has an out-of-state restraining order entered against her by her daughter. Ugh.

What's also a little unusual is that both of the parties here have lawyers. Lots of these cases (and appeals) are filed pro per. Yet another downside of the whole situation: money flushed down the drain.