In Re Destiny S. (Cal. Ct. App. - Oct. 31, 2012)

You read lots of cases in which DCFS is way, way too late in taking a child away from abusive parents.

And then there are cases like this one.

The Court of Appeal gets this exactly right.  Destiny S. belongs with her mother.

Happy Halloween, Destiny.

Ayyad v. Sprint Spectrum LLP (Cal. Ct. App. - Oct. 29, 2012)

These are the best lawyers that Sprint can hire in a huge, multi-million dollar (and successful) class action case?  Seriously?  And those lawyers -- from McGuireWoods and Kelley Drye -- can't file a brief better than the the one they filed here?  Really?

The Court of Appeal finds it pretty stunning that Sprint's arguments (and briefs) are so bad.  So do I.  This was an appeal -- and argument -- with absolutely zero chance of success, that that pretty much completely ignored fundamental principles about jurisdiction on remand and law of the case.  How a bunch of sophisticated lawyers could overlook this stuff -- deliberately or not -- is beyond me.  Nor do I see why it benefits their client to file an appeal that has no chance of success and that only serves to increase the number of hours for which class counsel gets to recover once they file their attorney fee motion.  Particularly since -- if I had any say -- class counsel would highlight in any such motion the Court of Appeal's opinion here and its repeated reference to what a fundamentally silly appeal this one is.  It demonstrates concretely both that defendants have needlessly multiplied the litigation and that a multiplier on fees might well be appropriate.

Sometimes the wisest course as a lawyer is to decide what battles not to fight.  Here's a perfect example.

Tuolomne Jobs & Small Business Alliance v. Superior Ct. (Cal. Ct. App. - Oct. 30, 2012)

When you write an opinion that creates an express conflict with another opinion from the Court of Appeal, you'd better write a pretty good one.  Especially when, as here, it involves a fairly important issue, and hence one that the California Supreme Court's likely to take up after you create the split.

Justice Wiseman does exactly that.

I wouldn't at all be surprised to see the Cal Supremes take this one up and adopt Justice Wiseman's view.  Projects that are approved by the voters in a voter-sponsored initiative are exempt from having to prepare an environmental impact report.  But having fifteen percent of the voters sign an petition to get an initiative on the ballot, and then having the City Council adopt the initiative as a statute in lieu of an election, isn't the same thing.  That doesn't create an exemption.

Fink v. Shemtof (Cal. Ct. App. - Oct. 24, 2012)

I'm glad that Justice Fybel decided to publish this opinion.  I think it meets the definitely meets the standards for publication.

Despite the fact that I'm tentatively of the view that the Court of Appeal got it wrong.

I'm not sure that the statutes relevant to the issue are particularly controlling.  Instead, I think we're dealing with a classic common law issue:

Is it okay for an individual who is not an attorney (1) to buy a claim from someone, and (2) then litigate that claim in pro per?

Clearly step (1) is okay.  My students are often surprised when I tell them that most rights under a lawsuit can be bought and sold.  But it's true.  We commonly sell intangible rights -- contractual and otherwise -- so that we permit individuals to do the same as regards rights against a third party seems fine.

But step (2) is troubling, at least when combined with (1).  What you essentially have there -- and what, in truth, you have here -- is someone who's a nonattorney acting as an attorney.  X has a right, but doesn't want to (or can't afford to) enforce it in court.  Similarly, X doesn't want to (or can't afford to) hire an attorney, on contingency or otherwise, to enforce those rights.  So along comes Y.  Y's not an attorney, so can't enforce X's rights on X's own behalf.  So X and Y (in truth, Y, who's motivating all of this) come up with a practical expedient.  X sells his rights to Y, who then enforces them in pro per.  Bingo.  Problem solved.  Y gets to in essence act as X's attorney, but since Y's now acting on his "own" behalf, it's okay.  At least according to the Court of Appeal.

Again, I'm not sure that Justice Fybel reads the statutes the wrong way, but I think there's an easy solution to this problem, and one that the Court of Appeal decides not to follow.  Courts have an inherent power -- one that's embodied in the separation of powers -- to control litigants before them, including but not limited to the inherent power to control representative and pro per litigation.  I think it's a bad idea to allow litigants to get around the unauthorized practice of law statutes by permitting devices such as those employed here.  So I'd be inclined to hold -- contrary to what Justice Fybel does -- that even though an individual is entitled to buy intangible legal claims, that doesn't necessarily create a right to litigate those claims in pro per.  Get a lawyer and we'll allow you to litigate them.  Otherwise, even though the assignment is valid (and I'd so hold, for the same reasons that Justice Fybel does), that doesn't mean that you're inherently authorized to litigate by yourself.  The two are related issues, but subject to differential control.  We have inherent power to regulate participation before the judiciary.  And I'd utilize that power to deny the validity of pro per litigation over claims obtained in such a fashion.  Precisely for the reasons identified by the trial court.  Because we don't want nonattorneys -- e.g., disbarred attorneys, suspended attorneys, people who failed out of law school or who couldn't pass the bar -- getting around their disability through precisely the machinations demonstrated here.

Which is exactly what the Court of Appeal allows.  And that, after this opinion, should only be expected to increase exponentially.

So I'm glad Justice Fybel publishes the opinion.  The opinion indeed makes relevant -- and important -- law.

But if I were on the California Supreme Court, I'd grant review.  And reverse.

Laurel Park Community LLC v. City of Tumwater (9th Cir. - Oct. 29, 2012)

This may well be the most well-written opinion I've read this year.  (And I've read a lot.)

I'm not talking about substance.  Though that's good too.  I'm more focused on the writing.  The organization, the sentence structure, the way the introduction sets up the analysis, the flow:  all of these are accomplished masterfully.

I could not have written an opinion that was even a third as good.  Really:  Well done, Judge Graber and chambers.  An outstanding, outstanding job.

(The case, by the way, is about zoning mobile home parks and whether it's a taking.  I've read two or three dozen opinions about this topic over the years, and none have even approached the clarity or the persuasiveness of this one.  And I say that having no strong feelings either way about the merits.  The opinion is outstanding not because it reaffirms my preexisting prejudices, but rather because I can tell a well-written opinion when I read one, and this is definitely it.)

The one caveat I'll make -- if only because I'd otherwise be gushing -- is that the very end of the opinion (the portion about spot zoning) wasn't as good as the rest of the opinion.  That part seemed rushed and overly conclusory.

So nothing's perfect.  Not even this opinion.

But it comes darn close.

People v. Delgado (Cal. Ct. App. - Oct. 26, 2012)

Congratulations, Mr. Delgado.  The Court of Appeal rejected the Attorney General's argument that your appeal should be dismissed because you're not allowed to appeal the sole issue of custody credits when you haven't raised the issue below.  Huge victory.

Oh.  One more thing.  The Court then ruled against you on the merits.

In Re Maricela (Cal. Ct. App. - Oct. 25, 2012)

You think your daughter doesn't respect your authority and is occasionally "out of control"?  Compare her to Maricela H. to get a sense of just how worse it could be:


"Maricela was born in 1995 to mother and C.H. (father). . . . Mother had no control over Maricela, who would come and go as she pleased, without telling mother her plans.  Mother did not know what Maricela was doing.  Maricela associated with 'the wrong people,' as she put it, used drugs, drank, and fought.  She stopped going to school.  In 2010, when 15 years old, Maricela gave birth to a child.  Her relationship with the baby's father involved methamphetamine abuse and domestic violence.  Mother provided the baby with a home.

Mother tried to control Maricela by talking to her.  She enrolled Maricela in an independent study program and kept her at home.  However, Maricela frequently ran away for days at a time and continued engaging in risky, self-destructive behavior.  She chased after older men, had unprotected sex, and used drugs and alcohol.  Against her better judgment, mother gave permission to Maricela to go out with a girl, and Maricela did not return for two days.

When Maricela left home on September 16, 2011, mother filed a police report and called the Department of Children and Family Services (Department) because Maricela threatened to take the baby from mother‘s care.  The Department detained the baby and offered Maricela a voluntary placement and services plan.  Maricela was placed in a group home in Pasadena, was enrolled in school, and agreed to participate in counseling and a substance abuse program.

Maricela stated she wanted to change and follow her program, but she continued abusing drugs, fighting, disregarding rules, and running away.  On November 8, 2011, she ran away from the group home to the alleys of Los Angeles after she had assaulted two peers and a teacher."

Yikes.

Let's let CS&N deliver a more uplifting message.

People v. BNSF R.R. (Cal. Ct. App. - Oct. 16, 2012)

The California Public Utilities Commission passed an order that essentially says that railroads can't block an intersection for more than 20 10 minutes (!) without a good reason. You can see why.  It's a big hassle for automobiles/passengers/pedestrians to wait at a train crossing for a long, long time.  It may even be a safety issue.  Can you imagine how bummed you would be if you were in an ambulance on the way to the emergency room and had to spend a half hour or so at a train crossing?  Bummer.

But the Burlington Northern Santa Fee Railroad occasionally violates that rule.  Sometimes it blocks intersections for as long as two hours (!).  Fairly regularly, even.

Eventually, the City Attorney of Richmond got fed up, and filed a misdemeanor complaint against BNSF for violating the order.  BNSF was convicted and sentenced to pay a fine of $1000.  But BNSF wasn't done.  It filed an appeal.  Paying far more than $1000 on attorney's fees.  For the principle of the thing.  The principle of getting to block street traffic for hours at a time and not letting the state do anything about it.

The Court of Appeal agrees this is a valid principle.  Reversing BNSF's conviction on grounds of federal preemption.

Those pesky states.  Always getting in the way of progress.

People v. Jackson (Cal. Ct. App. - Oct. 24, 2012)

This makes total sense.

Just because your marijuana collective is huge -- here, 1600 people -- doesn't mean that it's not a legitimate collective.  The trial court's contrary holding gets it wrong.  So the Court of Appeal is required to reverse the conviction.

But Justice Benke's opinion is equally right that the size of the collective is relevant to whether it's a legitimate collective or instead merely operates to make money.  So a jury could legitimately find that the size of the collective made it more likely that it was designed for profit rather than merely to give a means for members of the collective to obtain access to their medicine.  As a result, a trial court should instruct the jury accordingly on remand.

I think that's exactly right.  A jury could decide that it's a fake based on the number of participants.  But a jury could reasonably go the other way as well.

(Ditto, by the way, for the presence/absence of financial records, corporate minutes, etc. All of this is relevant to whether it's a legitimate medicinal enterprise.)

In Re Marriage of Barth (Cal. Ct. App. - Oct. 22, 2012)

Jeffrey Barth gets divorced from his ex-wife, and she wants child support.  She files for divorce in Ohio, and Jeffrey litigates for years -- including a trip to the Ohio Supreme Court -- in his successful claim that Ohio doesn't have jurisdiction, and that the matter has to be litigated in California instead.

But once the case eventually gets to California, the California courts order child support payments that are way higher than those ordered by Ohio.  Way.

Because Justice Moore is slightly older -- and perhaps more sophisticated -- than I am, here is how she introduces her opinion in that case:

"If ever there was a case where the adage 'be careful what you wish for' applied, this is surely it."  Dropping a footnote to a fable by Aesop from the sixth century, B.C.

Pretty fancy.

But younger readers might have even more readily understood a more contemporary reference.  They don't read Aesop.  They watch American Idol.  So they'll easily understand the following equally-apt reference, from Chris Daughtry's bestselling song Home:

Be careful what you wish for.
'Cause you just might get it all.
You just might get it all.
And then some you don't want.

I think that the Daughtry reference is especially applicable because he's talking about going home.  Which is precisely what Jeffrey wanted:  litigation in his home state.  Which he got.  And then something he definitely didn't want.  Including but not limited to the resulting opinion from the Court of Appeal.

Martinez v. Robledo (Cal. Ct. App. - Oct. 23, 2012)

Pets rule.  At least according to the Court of Appeal.

The traditional rule is that you determine a plaintiff's loss by the market value of the property.  As a result, when your pet -- the market value of which is often zero -- gets injured, you're simply out of luck.

But times are changing.  And they're not going back.

The Court of Appeal has now decided a couple of cases that hold that you can recover even tens of thousands of dollars in vet expenses if your animal is injured and actually incur those expenses, and can do so even if those expenses exceed the market value of the animal.

Because pets are different.

How far this will eventually go remains to be seen.  Right now we're just talking about out-of-pocket expenses being "reasonable" even though they exceed market value.  Whether, in the future, you can recover for emotional distress, loss of consortium or the like remains indeterminate.

But it's a big step just doing what the Court of Appeal is now willing to do.

Animal law.  Not just dog bite cases anymore.

Chesbro v. Best Buy (9th Cir. - Oct. 18, 2012)

From the "No Duh" files:

You can't get around the prohibition on commercial robo-calls by saying that you're calling your customers to "remind" them that their coupons or gift certificates may expire.  There's a reason you're calling them, and it's not simply because you're nice.  It's because you want them to buy stuff at your store.

That's covered.  No robo-calls.  Dismissal of complaint reversed.

Center for Biological Diversity v. BLM (9th Cir. - Oct. 22, 2012)

Freaking Ninth Circuit.  Don't they know that gasoline is five dollars a gallon!

A natural energy company wants to build a natural gas pipeline from Wyoming to Oregon.  Create jobs.  Supply energy.  Heat homes.  Yes, in the midst of its 678 miles, it's going to inevitably cross some rivers and streams.  Two hundred and nine of them, to be exact. 

And, yes, constructing the pipeline will inevitably cause some damage to the wildlife that calls those streams homes.  Especially to some crazy species I've never heard of before -- perhaps because they are so uncommon as to be threatened and/or endangered -- like the Lahontan cutthroat trout, the Warner and Lost River suckers, the Modoc sucker, etc.

But the federal government nonetheless approved the pipeline, holding -- after exhaustive review -- that the project wouldn't actually make any of these species extinct.  Sure, there would definitely be some incidental disruptions while they dug through the streams, and yes, a tiny number of late-born little ones would surely die.

But that's the price of progress.  Everything we do is going to kill something.  And need I remind you:  Gas is five dollars a gallon.  People need to heat their homes.  Electricity needs to be generated.  The pipeline makes sense, which is why it gets approved.

Of course, the inevitable muddle-headed tree-huggers file suit.  But the district court dismisses the action, finding that the federal government's approval was far from "arbitrary and capricious."  So the gas gets to flow.

At least until the Ninth Circuit gets involved.  Which, today, reverses and remands.  Stopping the pipeline in its tracks.

Shades of the Keystone Pipeline, eh?  Except now it's unelected judges instead of a president we can boot out of office.

All of the above is one way to look at the issue.  And assuredly is the way a large number of people will spin today's decision.

But let me suggest that Judge Berzon's opinion actually makes a fair amount of sense.

It's true that the federal government approved the project.  But it did so in light of a lot of promises by the owner of the pipeline that they'd do lots of stuff to mitigate (i.e., reduce) the impact of the project on wildlife.  Without those repeated promises, a lot more fish would die, and approval might well not have been forthcoming (and/or justified).

Those promises, however, were often written in classic lawyer-speak.  The builder promised to do X but only "in its sole discretion" and the like.  It promised to engage in Z but only if funds -- which it only agreed to partially pay -- were "forthcoming," and if not, would merely "consult" about what to do next.  Moreover, these promises were made, and the federal government could enforce them if it wanted to.  But if it didn't -- if it thought that energy was more important -- no one else could enforce them, because the conditions weren't enforceable under the Act; e.g., environmental groups could not sue if the builder failed to comply with its obligations and started killing endangered species willy-nilly as a result.

You can see why the Ninth Circuit -- even a non-"fuzzy headed" one -- might have a problem with that.  Were all the promises kept, it might well be that the project wouldn't have a big impact on the environment.  But there was insufficient proof that this would, in fact, be the case, and the approval impermissibly assumed that these non-enforceable conditions would invariably be performed.  When there is, in fact, a fair reason to believe they might not be.

One more thing.  The project will require using over a third of a billion gallons of water in order to keep down dust, test the pipeline, etc.  The federal government says that "might seem like a lot" to an unsophisticated person.  Especially in an area (like the one at issue here) that's not exactly teeming with excess water; e.g., is partially a desert.  But the government assures us that a third of a billion gallons ain't that much when you really think about it.  After all, the Pacific Ocean is 187 quintillion gallons.  What's a third of a billion between friends?

But Judge Berzon responds that a third of a billion still seems like a lot, even after she thinks about it.  To which the government responds:  But, you silly federal judge, you shouldn't worry about the impact of the project using up all that groundwater, because the project's using groundwater, not water from a stream, and fish only live in streams, not underground.

To which Judge Berzon responds:  "Duh.  I'm not an idiot."  Noting that even though fish don't live underground -- and thanks for that update, counsel for the government -- when you take water out of the ground, that may well affect the amount of water in a stream.  Because guess where some of that water in the stream comes from?  The ground, dude.  You know.  Seepage and stuff.  Or at least that's what we learned in third grade Earth Science, and I'm pretty sure is still true today.

Its for these reasons that the Ninth Circuit reverses and remands.  Holding not that the project cannot be approved, but rather, that such approval should be based on a rational assessment of the impact of the project on the environment.  And that an approval that -- as here -- operates under an erroneous assumption that numerous promises will invariably be followed (despite the absence of any means of private enforcement) and that groundwater won't affect streamwater doesn't qualify.  It's arbitrary and capricious.  So try again using accurate assumptions.  And if approval's again forthcoming, that's fine.  Just make it make sense.

So one way to view this case is yet another example of a hippy vegan Ninth Circuit siding with their similarly unkempt environmental brethren to stand in the way of progress.  But the reality, I'll submit, is actually quite different from the way many commentators will view and/or spin today's opinion.

Garfias-Rodriguez v. Holder (9th Cir. - Oct. 19, 2012)

Chief Judge Kozinski says that this en banc opinion -- which has six different authors articulating six different views -- fails the en banc court's duty "to bring clarity to our laws."  He says:  "By the time lawyers in this circuit get through reading all our opinions, they'll be thoroughly confused."

I can help.

Judge Bybee's opinion is joined by a majority of the judges on the court.  Right or wrong, it's now the law.  The result of a 6-1-1-1-1-1 decision is no more "confus[ing]" to lawyers than the result of a 6-5 opinion.  Guess which opinion matter?  The one with the six votes.  The others just speak to what the law arguably should be, not what it is.  The law's no more confusing in that case than it is when the en banc court votes 11-0 but there are five law review opinions criticizing the result.  Interesting, to be sure.  Fraught with competing perspectives, no doubt.  But hardly "confusing" to anyone who can count to six.

So I think that Judge Kozinski's critique is inapt.  As, by the way, is his (typically creative) manner of demoninating his concurring opinion as a new-fangled "Disagreeing With Everyone" rather than what it actually is:  a straightforward concurrence.  They're both articulted in classic Kozinski fashion.

But, upon closer examination, neither one of these statements is really accurate.

Or at least I can help.

In Re: Christina Adams and Jack A. (Cal. Ct. App. - Oct. 16, 2012)

Father and Mother have a child.  The child has Asperger's Syndrome, a high-functioning form of autism.  Father and Mother get divorced.

Father's a special education attorney and has a master's degree in psychology.  Mother has written a published book on autism, give lectures on the subject, and plans to write several more books on the subject in the future.  Father and Mother both care deeply about their son, but have diametrically opposing views about how best to deal with their child's disabilities.

What could possibly go wrong?

Everything.

I'll let you read the whole thing.  Two well-meaning parents.  But a total train wreck nonetheless.

Mother thinks that Father's an uncaring, selfish and profoundly dangerous parent who's letting the child view pornography, play with knives and potentially drown on a boat.  Father thinks that Mother is a nutjob who "has turned our son's disability into a cottage industry.  She spends her time researching treatment methodologies for autism that often have little or no proven validity.  For example, Mother has for several years fed [our son] camel's milk as a purported treatment for autism.  Mother stopped taking [our son] to his previous pediatrician of seven years because the pediatrician was critical of camel's milk as a treatment for autism . . . . [and now] takes [our son] to a 'naturopathic doctor."

Yikes all around.

Needless to say, the parents can't agree on what middle school their child can attend.  And can barely talk to each other at this point.  Prompting nuclear litigation that needs to be resolved by the Court of Appeal.

I'm not kidding when I say this is a train wreck.  You don't want to watch.  But you can't help yourself.

People v. Walker (Cal. Ct. App. - Oct. 18, 2012)

I'm confused.

Justice Duffy's opinion in this case seems to correctly analyze the facts.  Police officers detain Everett Walker -- who's riding a train in San Jose -- because he purportedly looks like a suspect who sexually assaulted a woman at the same train station a week earlier.  But we've got a description of the suspect, and there's indeed a similarity.  Both the suspect and Walker are black.

That's about it.  Everything else is markedly different.

So Justice Duffy doesn't say so, but essentially, Walker got detained for TWB (a lesser-known variant of DWB).  Training While Black.

That's not okay.  Not reasonable suspicion.  Not a basis for legitimately stopping Walker.  So the conviction gets reversed.

That I understand.  Here's the part I don't get:

The officer initially comes up to Walker and asks him for his train ticket; i.e., proof that he paid the fare.  Walker responds by giving him a copy of a student identification card with the name "Aalim Moor" on it and a valid VTA sticker attached.  That'd be valid fare payment if Walker was indeed Aalim Moor.  So the officer calls in a record check, finds out that the birthdates don't match (and that Walker's way, way shorter than the actual Aalim Moor), at which point the officer arrests Walker for providing false identification and, in a search incident to arrest, discovers the drugs.

I agree with Justice Duffy that all that goes away if the initial stop was impermissible.  And I also agree that you can't justify the stop on the basis that Walker purportedly looked like the suspects in the prior sexual assault.

But what about the ticket?

Officers can legitimately ask riders to produce their ticket.  That's permissible.  Indeed, the officer's duties in the present case included fare enforcement.  Sure, that's not why -- in fact -- he decided to pick out Walker as opposed to anyone else.  But we already know that subjective intent is irrelevant to the validity of a stop.  What matters is simply is whether the detention was authorized.  Which the request for the ticket was.

Justice Duffy says in a footnote that the Attorney General conceded at oral argument that the officer didn't have reasonable suspicion to believe (prior to stopping him) that Walker hadn't paid the fare.  I get that, and am certain that this concession is true.  But what I don't understand is the predicate; i.e., why the officer even needed reasonable suspicion.  You can ask people for their ticket even if you have no particular reason to believe they're not carrying one.  Train conductors and transit officers do it all the time.  That's not a violation.  No suspicion at all is required.

It's true that the officer didn't ask everyone for their ticket, only Walker.  But that doesn't make it a violation either.  You can ask some people for tickets and not others.  True, you can't do it on a basis that's constitutionally impermissible; e.g., you can't only ask black people to show their tickets but not whites.  But there's no evidence or discussion on that point at all.  Justice Duffy doesn't hold that the stop was race-based (and hence a violation of the Equal Protection Clause), but rather that it was conducted without reasonable suspicion and hence an unreasonable search.  But it can't be the latter if the officer was permitted to stop Walker -- amongst others -- to ask him (as he did) to show his ticket and to investigate whether the ticket that was produced was indeed his (as, again, the officer did).

So I'm truly in a quandary as to why this case comes out the way it does.  Even if I agree with every word that's said.

It may be (I admit) that there are additional facts of which I'm unaware.  For example, it seems that the officer may have stopped Walker shortly after he hopped off the train, rather than while he was still on it.  Maybe that matters.  Maybe at that point an officer needs reasonable suspicion, since the search is not longer "administrative" (or some such variant).  But the facts may also be otherwise; I am confident, for example, that many mass transit systems have a rule that says you have to have a ticket to even be at the station (e.g., at the immediate loading/unloading area), which is where Walker appears to have been stopped.  Plus, I'm not even sure it matters.  If Walker could be asked to show his ticket while still on the train, why not immediately once he got off?  Or does getting off the train mean there's now a heightened requirement before you can be demanded to show your ticket?  If so, next time I ride the train, I'm going to be sure to hop off promptly once I notice that there's an officer coming around who's actually checking tickets.  Problem solved.  Fare successfully evaded.

I concede that, at some point, reasonable suspicion is required.  I'm sure, for example, the officer could not follow Walker home and -- two feet from his doorstep and fifty minutes after he got off the train -- demand to see his ticket.  Reasonable suspicion seems applicable at that point.  But I'm not at all confident that the right dividing line between these two doctrinal fields is immediately at the door of the train.

So I wonder what the truth is here.  Either legally or factually.  Because it seems to me that the stop might well be justified.

People v. Mills (Cal. Supreme Ct. - Oct. 18, 2012)

Would you find the following defendant to be sane?  Would you agree with the defense that he was only guilty of manslaughter -- not murder -- because he acted with a subjective (but unreasonable) belief that he was threatened and hence acting in self-defense?

Here are the (sad) facts:

Shortly before 5:00 on the afternoon of April 21, 2005, Jason JacksonAndrade entered the Amtrak station in Emeryville.  Eyewitness testimony established the ensuing events.  As Jackson-Andrade sat on a bench on the platform, defendant approached him and launched a tirade of insults.  He told Jackson-Andrade, 'You ain‟t getting on that train.'  Jackson-Andrade went into the station, sat down, and asked a woman if she knew the man outside.  She said she did not.  Jackson-Andrade told her he had not done anything, but the man was 'cussing' at him and acting as though he wanted to kill him.

Defendant walked around on the platform for several minutes, bouncing on his toes, humming, and talking to himself.  He then began walking toward the station in a determined manner, saying, 'You got a gun, nigger?  You got a gun?  You got a gun?'  He entered the station, approached Jackson-Andrade, and twice said, 'Motherfucker, you want to kill me?'  He also asked, 'You got a gun?'  As Jackson-Andrade looked up at him, defendant said, 'Well, if you ain‟t got no motherfucking gun, I do,' and produced a revolver from his pocket.  Defendant shot Jackson-Andrade, who held up his hands and said, 'Please, don't shoot me again, don't shoot.'  Jackson-Andrade fell from his seat and began crawling away. 

Defendant shot him five more times in the back and once in the back of the thigh. When the police arrived, defendant lay on the ground, sliding his gun forward and assuming a prone position.  He told them he was the only shooter.  Jackson-Andrade died at the scene.

Defendant testified in his own defense.  He claimed that because of death threats from various individuals, he and his wife had left their home in Merced to live with his cousin Telitha in Rodeo.  He had been visiting another cousin in Sacramento in the days before the murder.  As he walked around Sacramento, he began to suspect that he was being followed.  On the morning of the murder, he stole a car at gunpoint and drove from Sacramento to Rodeo.  He had Telitha take him to the Amtrak station because he did not want the people following him to find her or his wife.  As he approached the station, he heard someone say, 'You're going to feel it today,' which he took to mean that he was going to be shot.

On the platform, defendant became suspicious of two men, one of whom looked at him and said into his cell phone, 'He looks scared.'  Defendant claimed that after these men left, Jackson-Andrade beckoned to him.  As defendant approached, Jackson-Andrade became angry and threatened to kill  him.  JacksonAndrade then got up and went into the station, pausing at the door to make a hand
gesture indicating that he had a gun.  Defendant was nervous, and had to go to the bathroom, so he entered the station.  When he saw Jackson-Andrade sitting inside talking to a lady, defendant 'jumped' and the contents of his backpack spilled onto the floor.  Jackson-Andrade got up and put his hand into his pocket.  Defendant thought he was reaching for a gun, so he shot him.

Andrade lay on the ground, defendant again thought he was reaching for a weapon, so defendant shot him again.  Defendant testified that he shot only twice, but on cross-examination admitted he had reloaded his gun and continued firing. Defendant‟s wife and cousin testified that he told them people were after him.  His wife said he thought radio commercials were speaking to him, that the FBI was in a FedEx truck, and that cars were following him."

I have no doubt that Mills was delusional.  Maybe also a trial, since his story doesn't make sense.  But there was utterly no reason to kill the victim.  Whether those delusions negated the required mental state for murder is another question.

The California Supreme Court holds that the trial court erred in instructing the jury at defendant's trial that he was conclusively presumed to be sane, but holds that this error was harmless.

People v. Brown (Cal. Ct. App. - Oct. 17, 2012)

Do you think a B.B. gun is a "deadly weapon"?

To be more precise:  Does a B.B. gun qualify as a "deadly weapon" pursuant to the definition of that term in California's statute relating to assaults with a deadly weapon, which say that an item qualifies if it is "any object, instrument or weapon that is used in such a manner as to be capable of producing and likely to produce, death or great bodily injury"?

The Court of Appeal says yes.

Which is entirely consistent with the absurd way in which this statute has been interpreted by the California judiciary.  Brown shot a dude with a B.B. gun and hit him in the back, causing a welt.  Is it possible that the pellet would have accidentally hit the victim in the eye?  Sure.  Does that fact mean that the B.B. gun was "likely to produce death or great bodily injury?"  The Court of Appeal thinks so.  Which interprets the term "likely" in such a way to be unrecognizable to anyone who uses this same term in everyday language.

Are there a plethora of other California cases that do the same thing?  Sadly, yes.  So I'm not saying this one's an outlier.  The problem is instead that it's entirely mainstream.

Because, in my view, that's not what the words mean.  Not even close.

People v. Rutterschmidt (Cal. Supreme Ct. - Oct. 15, 2012)

Clearly it doesn't take a genius to defraud insurance companies out of millions of dollars.  Case in point.

Admittedly, as here, you may have to be willing to kill a couple of people.  But a small price to pay for living large, right?

Gorlach v. Sport Club (Cal. Ct. App. - Oct. 16, 2012)

Susan Gorlach should become a lawyer.  She's clearly got what it takes.

Susy Gorlach is the Human Resources Director at the Sports Club.  (She may now be playing a lot of golf at the Annandale Golf Club).  The Sports Club decides to add an arbitration clause to its existing employment agreements, and puts Susan in charge of getting all the employees to sign.  She's diligent about doing so.  She's making everyone sign.  She's giving weekly updates to everyone at corporate about the few individuals who haven't signed, and says that while there's a few individual stragglers (and identifies them by name), they're low level people, and they'll be signed up soon.  She says that everyone big -- e.g., everyone at corporate -- has already signed.

She deliberately leaves out one thing, however.  She hasn't signed.  A fact that she's careful to conceal.  Because, after this thing drags out for a while, she decides to quit.  And promptly sues.

Sports Club moves to arbitrate.  Claiming that she deliberately concealed the fact that she hadn't signed.  Maybe; indeed, that's what the trial court holds.  But she did not, in fact, sign.  So the trial court holds there's no arbitration agreement, so she can sue.  The Court of Appeal agrees.

Ex-Human Resources Director 1 - Former Employer 0.