Three straight days now with no published opinions from the Ninth Circuit. But, again, the California Court of Appeal takes up the slack. Including this opinion, which is definitely worth a read. Not because it establishes any critical precedent. But rather because it's an interesting set of facts. As well as gives one a keen sense of the displeasure that courts sometimes take towards pro se litigation. Particularly when filed by prisoners.
You don't usually have a prisoner who (1) seems fairly diligent, (2) confronts a seemingly hostile and overly penurious judge, and (3) actually has a potentially meritorious case. Sure, you'll get one of these, and perhaps even two of them, on occasion. But all three? Rare. But, here, I think Justice Jenkins was surprised -- as I was -- to find the trifecta.
So take a gander at it. It reaches the right result. And, for what it's worth, doesn't make Judge Beeman (up in Solana County), look especially great.
P.S. - I welcomed Justice Needham for his first mention in the California Appellate Report yesterday, and today similarly welcome Justice Jenkins (who, as you may know, come over earlier this year from the federal bench). Enjoy.
Friday, October 31, 2008
Thursday, October 30, 2008
Turner v. Association of American Medical Colleges (Cal. Ct. App. - Oct. 30, 2008)
For anyone who wants to take the MCAT, this is an important case. It's also important, by analogy, to those of us in the legal field. Especially those of us in the academy. Since what's good for the MCAT is almost certainly good for the LSAT as well. And, potentially, for law school exams as well.
It's a disability accommodations case, and concerns whether California law (the Unruh Act) requires the MCAT to give test takers more time (or additional accommodations) beyond those required (if at all) by the ADA. Justice Needham says "No." And, in so holding, reverses not only the judgment of the trial court below, but also the attorney fee award of approximately $4 million.
For good or bad, there are a lot more testing accommodations nowadays -- in all fields -- than there were a decade ago, or a decade before that. And, almost assuredly, for anyone not involved in this area, a lot more than you think.
So it's an important case. Particularly for those of us in California. Read it at your leisure.
P.S. - And welcome to the California Appellate Report, Justice Needham. Your first mention in what will, with luck, be a long line of (at least mostly) positive and glowingly effusive praise.
It's a disability accommodations case, and concerns whether California law (the Unruh Act) requires the MCAT to give test takers more time (or additional accommodations) beyond those required (if at all) by the ADA. Justice Needham says "No." And, in so holding, reverses not only the judgment of the trial court below, but also the attorney fee award of approximately $4 million.
For good or bad, there are a lot more testing accommodations nowadays -- in all fields -- than there were a decade ago, or a decade before that. And, almost assuredly, for anyone not involved in this area, a lot more than you think.
So it's an important case. Particularly for those of us in California. Read it at your leisure.
P.S. - And welcome to the California Appellate Report, Justice Needham. Your first mention in what will, with luck, be a long line of (at least mostly) positive and glowingly effusive praise.
In Re Charllisse C. (Cal. Supreme Ct. - Oct. 30, 2008)
The Ninth Circuit has taken the last couple of days off, at least as far as published opinions go. Fortunately, there's no rest for the weary in the California appellate courts.
Today the California Supreme Court gives the following lesson about how to avoid dissent. It's a tough conflict of interest issue that involves the validity of screening by the Children's Center of Los Angeles through the creation of different internal "units" so that it can avoid disqualification in dependency cases. But the Court resolves the dispute unanimously; by contrast, the decision below had generated three different opinions.
How does the California Supreme Court achieve unanimity on this difficult issue? By merely holding that the Court of Appeal applied the wrong legal standard (since this is a concurrent, rather than successive, conflict of interest case), and then remanding the case alongside relentless reminders that the Court isn't even trying to decide the merits.
That works. Though merely defers the day of reckoning.
Today the California Supreme Court gives the following lesson about how to avoid dissent. It's a tough conflict of interest issue that involves the validity of screening by the Children's Center of Los Angeles through the creation of different internal "units" so that it can avoid disqualification in dependency cases. But the Court resolves the dispute unanimously; by contrast, the decision below had generated three different opinions.
How does the California Supreme Court achieve unanimity on this difficult issue? By merely holding that the Court of Appeal applied the wrong legal standard (since this is a concurrent, rather than successive, conflict of interest case), and then remanding the case alongside relentless reminders that the Court isn't even trying to decide the merits.
That works. Though merely defers the day of reckoning.
Wednesday, October 29, 2008
People v. Newby (Cal. Ct. App. - Oct. 29, 2008)
A woman named Julie tells her fiancee that she's breaking off the engagement and leaving him. The fiancee (William Newby) responds by "grab[bing] Julie by the throat and punch her in the face several times with his fist. Eventually falling to the floor, drifting in and out of consciousness, Julie watched as defendant continued the attack by kicking her in the face with his steel-toe boots. Throughout the attack, defendant repeated: “[Y]ou are fucking dead, you are fucking dead, you bitch, you are fucking dead.” When defendant was finished, he took Julie’s engagement ring and departed. Defendant beat Julie so severely that her nose was pushed into her nasal cavity. Several facial bones, including those supporting the nose and those surrounding the eyes, were shattered. Fragments of these bones were strewn throughout her nasal cavity, causing air from her sinuses to get into the fat tissue around the eyes. One of her front teeth was also broken off at the root."
Notwithstanding the horrible attack, Julie clearly made the right call, and correctly saw Newby for what he was. And now Newby gets to spend the rest of his life in prison. And look therein for a new fiancee. Over the internet or otherwise.
Notwithstanding the horrible attack, Julie clearly made the right call, and correctly saw Newby for what he was. And now Newby gets to spend the rest of his life in prison. And look therein for a new fiancee. Over the internet or otherwise.
Tuesday, October 28, 2008
U.S. v. Snellenberger (9th Cir. - Oct. 28, 2008)
I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.
It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam. Judge Milan Smith writes a dissent, joined by three other judges. And Judge Graber (joined by others) writes a concurrence to respond to the dissent (which argues that the court should reach an issue not raised by the opening brief regarding whether a recent en banc decision of the Ninth Circuit counsels reversal of the judgment below as plain error)
What makes this otherwise straightforward outcome slightly weird is that Judge Graber is joined by no less than five of her colleagues. In other words, the concurrence is joined by a majority of the court, and responds to a dissent joined by four judges. In short, it's a 7-4 decision, and 6 of the 7 want to say X as well, and yet the majority opinion does not contain the argument of the 6. As I presaged at the outset, the only judge not part of the 6 or the 4 is Judge Fletcher, who's vote on the point mathematically matters not.
Traditionally, you'd see the 6 judges write a majority opinion, the 4 judges write a dissent, and the one judge left out write a separate concurrence that says "I agree with the majority, but not with X." And yet, here, it's inverted, with the one judge (essentially) writing the majority opinion [though my sense from the writing is that Judge Fletcher wasn't the actual author] and a majority of the court writing a "concurrence". Weird.
The lineup is also not what you'd usually expect. It's a criminal case, so you've got your traditional splits, and yet here's who's on the defendant's side: Kozinski, Reinhardt, Thomas and Milan Smith. Now, the first two are occasional buddies both on and off the court, though typically more in civil liberties matters. But the latter two joining this mix; well, if there's ever been an en banc decision with only these four on one side, I certainly haven't seen it. A Carter, a Reagan, a Clinton, and a Bush II. Strange bedfellows. Especially when on the other side you've got the two remaining Bush I appointees and five Clintons. I don't remember such an ususual split in a non-snoozer sort of case (ERISA, state contract law, etc.) in a long time. Only adds to the weirdness.
As for the merits, you can read the relevant opinions. But I think Judge Smith does a fairly decent job of presenting the respective positions -- as well as advancing his own -- in the penultimate paragraph of the dissent:
"I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result."
So there you have it. An interesting case for sure.
It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam. Judge Milan Smith writes a dissent, joined by three other judges. And Judge Graber (joined by others) writes a concurrence to respond to the dissent (which argues that the court should reach an issue not raised by the opening brief regarding whether a recent en banc decision of the Ninth Circuit counsels reversal of the judgment below as plain error)
What makes this otherwise straightforward outcome slightly weird is that Judge Graber is joined by no less than five of her colleagues. In other words, the concurrence is joined by a majority of the court, and responds to a dissent joined by four judges. In short, it's a 7-4 decision, and 6 of the 7 want to say X as well, and yet the majority opinion does not contain the argument of the 6. As I presaged at the outset, the only judge not part of the 6 or the 4 is Judge Fletcher, who's vote on the point mathematically matters not.
Traditionally, you'd see the 6 judges write a majority opinion, the 4 judges write a dissent, and the one judge left out write a separate concurrence that says "I agree with the majority, but not with X." And yet, here, it's inverted, with the one judge (essentially) writing the majority opinion [though my sense from the writing is that Judge Fletcher wasn't the actual author] and a majority of the court writing a "concurrence". Weird.
The lineup is also not what you'd usually expect. It's a criminal case, so you've got your traditional splits, and yet here's who's on the defendant's side: Kozinski, Reinhardt, Thomas and Milan Smith. Now, the first two are occasional buddies both on and off the court, though typically more in civil liberties matters. But the latter two joining this mix; well, if there's ever been an en banc decision with only these four on one side, I certainly haven't seen it. A Carter, a Reagan, a Clinton, and a Bush II. Strange bedfellows. Especially when on the other side you've got the two remaining Bush I appointees and five Clintons. I don't remember such an ususual split in a non-snoozer sort of case (ERISA, state contract law, etc.) in a long time. Only adds to the weirdness.
As for the merits, you can read the relevant opinions. But I think Judge Smith does a fairly decent job of presenting the respective positions -- as well as advancing his own -- in the penultimate paragraph of the dissent:
"I sympathize with my colleagues who would like to find a way to fit convictions under California Penal Code § 459 into “burglary of a dwelling” or the residual clause. The peculiarities of California law, however, have left federal courts unable to use it as a predicate offense under USSG § 4B1.1. The goal of nationwide uniformity driving the Sentencing Guidelines is not well-served when we apply an enhancement for all burglaries in one state but none in California, our most populous state. But neither is it served when we apply an enhancement for conduct in California that would not trigger the enhancement in others. Navarro-Lopez and the Supreme Court’s insistence on a categorical analysis mandates that we reach the under-inclusive result."
So there you have it. An interesting case for sure.
Monday, October 27, 2008
People v. Conception (Cal. Supreme Ct. - Oct. 27, 2008)
Here's yet another reason not to attempt to escape from custody once your trial has started. Not only will they give the jury an adverse instruction about flight, but they'll also keep your trial going in your absence. Even if you're promptly caught.
And the California Supreme Court says that's just fine.
And the California Supreme Court says that's just fine.
Citizens for Civic Accountability v. Town of Danville (Cal. Ct. App. - Oct. 27, 2008)
Yes, we live in an electronic era. But that doesn't mean that California statutes are necessarily in the 21st century.
So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means. E-mail doesn't count. And that's true even if there's a standing order (as there is in Contra Costa County) that says e-mail counts and that we don't use snail mail to send out judgments.
Especially given the unreliability of e-mail at the University of San Diego, I couldn't agree more.
So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means. E-mail doesn't count. And that's true even if there's a standing order (as there is in Contra Costa County) that says e-mail counts and that we don't use snail mail to send out judgments.
Especially given the unreliability of e-mail at the University of San Diego, I couldn't agree more.
Friday, October 24, 2008
U.S. v. Hinkson (9th Cir. - Oct. 20, 2008)
When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.
So the vitriol -- from the panel opinion, at least -- won't be cited as precedent. We'll see how the en banc court sorts this one out. I'd be stunned if the result doesn't turn out to be split.
Stay tuned.
So the vitriol -- from the panel opinion, at least -- won't be cited as precedent. We'll see how the en banc court sorts this one out. I'd be stunned if the result doesn't turn out to be split.
Stay tuned.
Thursday, October 23, 2008
U.S. v. Fiander (9th Cir. - Oct. 23, 2008)
Contraband cigarette trafficking. It still exists. And while we can't charge members of the Yakima tribe (up in Washington) with substantive violations of the Contraband Cigarette Trafficking Act for not getting shipments approved in advance, we can, the Ninth Circuit held, charge them with a RICO conspiracy. At least when they conspire with people who aren't members of the Yakima Nation.
Interesting stuff. Both factually as well as legally.
Interesting stuff. Both factually as well as legally.
Styers v. Schriro (9th Cir. - Oct. 23, 2008)
One may perhaps take umbrage that it has taken 18 years for this death penalty case to work its way through the Arizona state system and finally get to the Ninth Circuit (after every court below denied relief). But you can't make the claim that the Ninth Circuit has inexcusably added to any such delay, as the oral argument was on August 20th, and the per curiam opinion was published today, two months later.
Pretty speedy.
Pretty speedy.
Wednesday, October 22, 2008
Mangano v. Verity (Cal. Ct. App. - Oct. 22, 2008)
I agree with Justice Mihara that the defendant employer here was entitled to summary judgment in its favor, as well as an award of post-998 offer costs (but not attorney fees). So I have no complaints about the merits.
Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr. Mangano "Rainman" in front of everyone at the company -- and even gave him a plaque to that effect -- in light of the subsequent discovery that Mr. Mangano had Asperger's Syndrome. Yikes.
Fortunately, the offending party immediately stopped using this nickname once Mr. Mangano requested that he do so. Still. Maybe we can all learn the following lesson, if only as a matter of civility: Don't tease someone about a perceived disability that they may, in fact, have. Whether you (or they) know it or not. And whether the disability you're teasing them about is exactly the disability they have or merely something close.
Agreed? Good.
Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr. Mangano "Rainman" in front of everyone at the company -- and even gave him a plaque to that effect -- in light of the subsequent discovery that Mr. Mangano had Asperger's Syndrome. Yikes.
Fortunately, the offending party immediately stopped using this nickname once Mr. Mangano requested that he do so. Still. Maybe we can all learn the following lesson, if only as a matter of civility: Don't tease someone about a perceived disability that they may, in fact, have. Whether you (or they) know it or not. And whether the disability you're teasing them about is exactly the disability they have or merely something close.
Agreed? Good.
El Dorado County Dep't of CSS v. Nutt (Cal. Ct. App. - Oct. 21, 2008)
I can't think of a more important use of social resources than for the government to bring and defend on appeal a child support action against a penniless three-strike prisoner who's in prison, not able to work, and eligible for parole as early as 2045. Just in case.
Definitely not better to bring that action when and only in the one-in-a-billion parallel universe in which the prisoner actually wins the lottery (without buying a ticket). Nope. Bring it now. Especially since the best you can possibly hope for, since the prisoner is penniless, is a judgment that says that no child support is awarded but the court "reserves jurisdiction" in case things ever change.
Anyway, great victory, El Dorado Department of Child Support Services. Huge win.
Definitely not better to bring that action when and only in the one-in-a-billion parallel universe in which the prisoner actually wins the lottery (without buying a ticket). Nope. Bring it now. Especially since the best you can possibly hope for, since the prisoner is penniless, is a judgment that says that no child support is awarded but the court "reserves jurisdiction" in case things ever change.
Anyway, great victory, El Dorado Department of Child Support Services. Huge win.
Tuesday, October 21, 2008
New v. Kroeger (Cal. Ct. App. - Oct. 21, 2008)
The Episcopal Church has had a lot of defections recently as a result of its decision to ordain an openly gay bishop (just like, several decades ago, they had a lot of defections when they decided to ordain women). As a result, there have been several fights in secular courtrooms about who "owns" the property of a particular defecting church. Including a case from down here in Fallbrook (in San Diego county) involving St. John's Episcopal Church.
Justice Nares writes an outstanding opinion here, and gets it exactly right (reversing the trial court, Judge Stern). When I started reading the case, I was concerned that the civil courts might potentially overstep their boundaries by intervening in a doctrinal religious dispute. But halfway through the opinion, Justice Nares totally persuaded me that not only was intervention permissible, but that a civil court was also required to defer to the decision of a heirarchical church regarding these matters. And that, for this reason and others, the higher-ups in the Episcopal Church were indeed entitled to keep control of the religious corporation here notwithstanding the efforts of the defectors (and contrary judgment by the trial court).
So good job, Justice Nares. This was not an easy case. At all. But, in my mind, at least, you got it exactly right.
Justice Nares writes an outstanding opinion here, and gets it exactly right (reversing the trial court, Judge Stern). When I started reading the case, I was concerned that the civil courts might potentially overstep their boundaries by intervening in a doctrinal religious dispute. But halfway through the opinion, Justice Nares totally persuaded me that not only was intervention permissible, but that a civil court was also required to defer to the decision of a heirarchical church regarding these matters. And that, for this reason and others, the higher-ups in the Episcopal Church were indeed entitled to keep control of the religious corporation here notwithstanding the efforts of the defectors (and contrary judgment by the trial court).
So good job, Justice Nares. This was not an easy case. At all. But, in my mind, at least, you got it exactly right.
Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)
Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.
P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right. Here, Justice Perluss notes that there isn't waiver, but rather asserts estoppel. In non-estoppel contexts, what we often call "waiver" is actually "forfeiture". So, for example, we traditionally say that you "waive" personal jurisdiction by not specially appearing (California) or asserting it in your answer or 12(b)(2) motion (federal court), but what we will often really mean is that you've "forfeited" this defense by neglecting to assert it. I mention this only because (1) I'm as guilty as anyone of this misuse of terminology, and I teach civil procedure for a living, and hence am certain that other people misuse the terms as well, and (2) there is a burgeoning trend in the judiciary, I think, to try to make these distinctions clear. So I thought I'd pass along the message.
P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right. Here, Justice Perluss notes that there isn't waiver, but rather asserts estoppel. In non-estoppel contexts, what we often call "waiver" is actually "forfeiture". So, for example, we traditionally say that you "waive" personal jurisdiction by not specially appearing (California) or asserting it in your answer or 12(b)(2) motion (federal court), but what we will often really mean is that you've "forfeited" this defense by neglecting to assert it. I mention this only because (1) I'm as guilty as anyone of this misuse of terminology, and I teach civil procedure for a living, and hence am certain that other people misuse the terms as well, and (2) there is a burgeoning trend in the judiciary, I think, to try to make these distinctions clear. So I thought I'd pass along the message.
Monday, October 20, 2008
Porter v. Osborn (9th Cir. - Oct. 20, 2008)
Don't pull off on the side of the road in Alaska. You may well be killed. And it might be by the police.
The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.
The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.
Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)
A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out. This decision was unanimous, joined by Judges Hug and McKeown.
Last year, the Ninth Circuit addressed this same issue, and on the basis of this recently decided precedent, voted to deny the petition. But Judge Thomas (joined by district judge Leighton) concurred, arguing that the prior precedent was wrongly decided (albeit binding).
You can guess where this is going. Today, the en banc court reverses the panel and overrules the prior (two-year old) precedent. Holding that, yes, it's a crime, but that at least when the victim is 16 or 17, it doesn't constitute felony sexual abuse of a minor categorically sufficient to justify deportation. On an extremely close vote of 11-0.
Such was the short life of Afridi.
Last year, the Ninth Circuit addressed this same issue, and on the basis of this recently decided precedent, voted to deny the petition. But Judge Thomas (joined by district judge Leighton) concurred, arguing that the prior precedent was wrongly decided (albeit binding).
You can guess where this is going. Today, the en banc court reverses the panel and overrules the prior (two-year old) precedent. Holding that, yes, it's a crime, but that at least when the victim is 16 or 17, it doesn't constitute felony sexual abuse of a minor categorically sufficient to justify deportation. On an extremely close vote of 11-0.
Such was the short life of Afridi.
Friday, October 17, 2008
Cundiff v. Verizon Wireless (Cal. Ct. App. - Oct. 16, 2008)
You're killing me. The second straight day of no published opinions from the Ninth Circuit. And from the California appellate courts, here -- in toto -- is the entirety of what's been published today: "It is ordered that the opinion filed herein on September 30, 2008, be modified as follows: 'On page 8, the last sentence of the opinion is modified to read: “Respondents to receive costs on appeal.”'" Not much to wax poetic about, eh?
Late yesterday the First District did issue this opinion, which involves whether uncashed settlement checks (obtained after claim forms were filed) reverted to the defendant -- here, Verizon -- or instead get distributed to charities pursuant to CCP 384. I think that the plaintiffs have the better of the argument here, which is what Justice Klein also concludes.
But let me say that I also had the reaction that this dispute may also reflect a partial problem with the adversary system here. Because as I was reading the case, my intuitive reaction was -- and somewhat remains (albeit without much research) -- that neither party may be entirely correct here. Verizon argued that it got to keep the uncashed checks and plaintiffs wanted them to go to charity, but my sense was instead that they remained -- or at least should remain -- the property of the individuals to whom these checks were sent, and that the property should thus revert to the state under the unclaimed property laws and remain there until the relevant individual requests them (which they can do forever, and the Controller is under a statutory duty to find and notify them). That seems not only required by the California unclaimed property statute, but would also, I think, be preferable as a policy matter to simply giving the funds -- which, again, were claimed by the individual class members -- to charity.
Justice Klein doesn't talk about this possibility, I imagine, because neither of the parties here had an incentive to raise the issue -- and they didn't (I checked out their briefs). It seems to me that if you have a reasonable shot at getting the half-million here to the rightful owners, that should be preferred to simply letting a charity cash their checks and deprive them forever of this cash. So I understand why Justice Klein -- as well as Section 384 -- might prefer giving the cash to charity rather than reverting back to Verizon. But given the ambiguous nature of Section 384, as well as the statutory text and policy bases behind the unclaimed property laws, I might add a sentence to the opinion that says (at a minimum) that the Court of Appeal expresses no opinion as to whether Section 384 trumps the unclaimed property laws, and would hope that on remand, the trial court would interpret these statutes to give the money to its rightful recipients.
I think there's a difference between an "unclaimed residue" in a fluid recovery class action or otherwise and checks that are affirmatively requested by a class member who files a claim form and who merely fails to cash (or doesn't timely receive) the resulting check. I agree that Section 384 sends the residue to charity in the former case, but I think that the recipients get to continue to receive the funds as unclaimed property in the latter.
That's my take from the outside, anyway.
Late yesterday the First District did issue this opinion, which involves whether uncashed settlement checks (obtained after claim forms were filed) reverted to the defendant -- here, Verizon -- or instead get distributed to charities pursuant to CCP 384. I think that the plaintiffs have the better of the argument here, which is what Justice Klein also concludes.
But let me say that I also had the reaction that this dispute may also reflect a partial problem with the adversary system here. Because as I was reading the case, my intuitive reaction was -- and somewhat remains (albeit without much research) -- that neither party may be entirely correct here. Verizon argued that it got to keep the uncashed checks and plaintiffs wanted them to go to charity, but my sense was instead that they remained -- or at least should remain -- the property of the individuals to whom these checks were sent, and that the property should thus revert to the state under the unclaimed property laws and remain there until the relevant individual requests them (which they can do forever, and the Controller is under a statutory duty to find and notify them). That seems not only required by the California unclaimed property statute, but would also, I think, be preferable as a policy matter to simply giving the funds -- which, again, were claimed by the individual class members -- to charity.
Justice Klein doesn't talk about this possibility, I imagine, because neither of the parties here had an incentive to raise the issue -- and they didn't (I checked out their briefs). It seems to me that if you have a reasonable shot at getting the half-million here to the rightful owners, that should be preferred to simply letting a charity cash their checks and deprive them forever of this cash. So I understand why Justice Klein -- as well as Section 384 -- might prefer giving the cash to charity rather than reverting back to Verizon. But given the ambiguous nature of Section 384, as well as the statutory text and policy bases behind the unclaimed property laws, I might add a sentence to the opinion that says (at a minimum) that the Court of Appeal expresses no opinion as to whether Section 384 trumps the unclaimed property laws, and would hope that on remand, the trial court would interpret these statutes to give the money to its rightful recipients.
I think there's a difference between an "unclaimed residue" in a fluid recovery class action or otherwise and checks that are affirmatively requested by a class member who files a claim form and who merely fails to cash (or doesn't timely receive) the resulting check. I agree that Section 384 sends the residue to charity in the former case, but I think that the recipients get to continue to receive the funds as unclaimed property in the latter.
That's my take from the outside, anyway.
Thursday, October 16, 2008
Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)
Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?
Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment. At the end, Justice Richman says that the opinion doesn't stand for the proposition that every "defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff’s attorney must warn a defendant’s attorney before taking a default." But the perceived need to include those two sentences is fairly instructive. It's a very pro-warning, anti-default opinion. Not wrongly so, IMHO: I always prefer adjudication on the merits. But, still, it's a very powerful piece.
There are also a couple of random things in here that make the opinion especially worth reading, including but by no means limited to its style as well as the relative reverence accorded to the views of the Rutter Group. I also think it's interesting that the opinion easily equates professionalism and courtesy with ethics (e.g., that an unprofessional or discourteous act, like not warning counsel that you may take their default, is necessarily an unethical act as well). I'm not entirely persuaded that's true: It depends on what we mean by "unethical," and that word may perhaps have different connotations for different people.
So there's a lot in here to feast upon. As well as to use if your client ever pulls a "whoopsie" and incurs a default judgment against it.
Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment. At the end, Justice Richman says that the opinion doesn't stand for the proposition that every "defendant who has properly involved the insurer and nevertheless ends up in default is always entitled to relief. Nor do we hold that a plaintiff’s attorney must warn a defendant’s attorney before taking a default." But the perceived need to include those two sentences is fairly instructive. It's a very pro-warning, anti-default opinion. Not wrongly so, IMHO: I always prefer adjudication on the merits. But, still, it's a very powerful piece.
There are also a couple of random things in here that make the opinion especially worth reading, including but by no means limited to its style as well as the relative reverence accorded to the views of the Rutter Group. I also think it's interesting that the opinion easily equates professionalism and courtesy with ethics (e.g., that an unprofessional or discourteous act, like not warning counsel that you may take their default, is necessarily an unethical act as well). I'm not entirely persuaded that's true: It depends on what we mean by "unethical," and that word may perhaps have different connotations for different people.
So there's a lot in here to feast upon. As well as to use if your client ever pulls a "whoopsie" and incurs a default judgment against it.
Wednesday, October 15, 2008
O'Leary v. Aubrey (Cal. Ct. App. - Oct. 7, 2008)
Desert. Very little today. Nothing at all from the California Court of Appeal. From the Ninth Circuit, only a guidelines case, a standard of review case, and a "how much interest does one particular guy get on unclaimed property held for him by California" opinion. The latter of which is marginally interesting, and important to the participants, but about which I could add very little. And, sadly, I've got to go to a meeting, so can't wait for the afternoon cases (if any) from the California Court of Appeal.
So let me just briefly reference this recent unpublished opinion by the Court of Appeal down here in San Diego. Which seems right on the merits. But definitely confirms the suspicion that jurors -- well, they're not wonderful at interpreting jury instructions. At all.
Don't look in the factory if you don't want to know what goes into the sausage.
So let me just briefly reference this recent unpublished opinion by the Court of Appeal down here in San Diego. Which seems right on the merits. But definitely confirms the suspicion that jurors -- well, they're not wonderful at interpreting jury instructions. At all.
Don't look in the factory if you don't want to know what goes into the sausage.
Tuesday, October 14, 2008
Hoffman v. Citibank (9th Cir. - Oct. 14, 2008)
The Ninth Circuit remands -- "respectfully" (though I think they actually mean it this time) -- so the district court can apply the correct law in a more rigorous fashion than it did previously. Judge Trott concurs to basically slam the California Court of Appeals for not getting on the same page. A snippet of the latter, including the final paragraph:
"California law is far from settled. . . . [Judge Trott then describes three competing opinions from the First, Second, and Fourth Appellate Districts.] The good news, if there is any good news in all of this, is that the California Supreme Court vacated and remanded the [last of these cases] for further proceedings in light of its decision in Gentry . . . . There it is. Mixed signals from the California courts. One hopes on remand in this case that the legal dust will soon settle and that our district court will have some reliable authority upon which to base its decision."
Personally, given that the first two Court of Appeal cases reach conflicting results, I don't see how the third case can possibly "settle" this dispute anytime soon, which could only be definitively resolved if the California Supreme Court had granted review. But maybe Judge Trott is just more of an optimist than I am.
So the Ninth Circuit says: "Get your act together, California Court of Appeal. Help us out on this one." Which I'm sure will happen really, really soon. (Read this last sentence sarcastically.)
"California law is far from settled. . . . [Judge Trott then describes three competing opinions from the First, Second, and Fourth Appellate Districts.] The good news, if there is any good news in all of this, is that the California Supreme Court vacated and remanded the [last of these cases] for further proceedings in light of its decision in Gentry . . . . There it is. Mixed signals from the California courts. One hopes on remand in this case that the legal dust will soon settle and that our district court will have some reliable authority upon which to base its decision."
Personally, given that the first two Court of Appeal cases reach conflicting results, I don't see how the third case can possibly "settle" this dispute anytime soon, which could only be definitively resolved if the California Supreme Court had granted review. But maybe Judge Trott is just more of an optimist than I am.
So the Ninth Circuit says: "Get your act together, California Court of Appeal. Help us out on this one." Which I'm sure will happen really, really soon. (Read this last sentence sarcastically.)
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