County of Santa Clara v. Escobar (Cal. Ct. App. - Jan. 29, 2016)

There's an injured person (the plaintiff) and a lienholder (the County, who paid for a portion of the injured person's medical care).  On first glace, I'd have thought that the defendant satisfied its obligation to both of 'em if it wrote a check payable to both parties and then let those two fight it out.  Moreover, that practice is, in fact, what lots of defendants do, in my experience.  I'd have thought it just fine.

The Court of Appeal disagrees.  And Justice Rushing persuades me that, instead, the defendant has to do something more complicated; e.g., file an interpleader action.

Good to know.  For everyone.

Liao v. Junious (9th Cir. - Jan. 29, 2016)

It's a state habeas case.  Defendant was convicted of attempting to kill his ex-girlfriend's teenage son with a hammer.

The panel consists of Judge Pregerson, Judge Trott, and a senior district judge from Florida.  The Ninth Circuit not only reverses and remands, granting the habeas petition, but ends the opinion by expressing disbelief that the state would even attempt to retry the defendant, saying:

"Liao has served his time in prison and is currently on parole. It is difficult to conceive of circumstances under which the State would again take him before a jury. Nevertheless, as is our practice and authority, we reverse the decision of the District Court and remand with instructions to grant a conditional writ of habeas corpus ordering Liao’s release from all forms of custody unless the State of California elects within 90 days of the issuance of the mandate to retry him."

Who wrote that opinion?  With the hint that it wasn't the judge sitting by designation:  It was either Judge Pregerson or Judge Trott.

Wrong.

People v. Ewing (Cal. Ct. App. - Jan. 27, 2015)

"At the police station, defendant was seen urinating on his hands and wiping urine on his hands, face and neck. The officer who observed the behavior assumed, and defendant later confirmed, that he was trying to remove gunshot residue from his body."

What helpful things we learn from the California Appellate Report, eh?

People v. Odom (Cal. Ct. App. - Jan. 26, 2016)

Defendant Keith Osby was kidnapped, hog-tied, beaten for hours, and then shot and killed.  Defendant was found guilty of first degree murder and torture.

That's terrible.  It's a bad, bad crime.

You might find the following additional facts surprising as well.  First, Mr. Osby was killed because the defendant thought Osby had stolen defendant's Play Station.  That's right.  Murder over a Play Station.

Second, the defendant's name is Ryan Odom.  The person who beat, kidnapped, and killed Mr. Osby.

Ryan's a woman.

Our country is sometimes a vicious place.

Bucur v. Ahmad (Cal. Ct. App. - Jan. 26, 2016)

You can read the entire opinion.  Or you can simply read this paragraph:

"As exhaustively outlined above, four trial judges, one arbitrator and one appellate court have previously concluded that Appellants' repetitive claims in five versions of essentially the same case underlying this appeal are meritless. Appellants' persistent but vacuous pursuit of the same repetitive claims that give rise to this appeal constitutes an egregious example of frivolousness. Previous sanctions have not discouraged Appellants and their counsel from maintaining their futile quest to the detriment of their opponents. Therefore, there is a compelling need to deter conduct of this nature in the future."

The attorney against whom substantial sanctions were imposed is Corona attorney George A. Saba.  Who should enjoy practicing law while he can.  Because my strong sense is that he's going to have to take a substantial break from it in the not-too-distant future.

Which might not be a bad idea anyway.  Since his net income from the practice may well be negative at this point given the tens of thousands of dollars in sanctions he's already amassed.

Lewis v. YouTube LLC (Cal. Ct. App. - Jan. 25, 2016)

YouTube can totally screw you and delete all your videos, in violation of its own Terms of Service, and there's nothing whatsoever you can do about it.

So holds the California Court of Appeal.

I'm not even sure I understand Justice Mihara's opinion on its own terms.  YouTube here deleted the legions of things that plaintiff had posted and banned her from the platform.  YouTube eventually did relent, and let her back on.  (Whether that was before or after the lawsuit was filed is unclear.)  But it didn't put any of her stuff back on; it simply gave her back "access" to YouTube so she could post her videos again were she to so choose.  (But her views, comments, etc. would still be lost forever.)

The Court of Appeal admits that YouTube's ban was in violation of its own Terms of Service, but says there's no remedy -- hence no lawsuit -- since the TOS completely bars damages and specific performance isn't available since YouTube has now let her back on.  First, if letting her back on was not alleged in the complaint, or didn't happen until after the lawsuit was filed, I'm not sure how that gets in on a demurrer, or justifies its grant.  Second, I don't see how letting her back on -- especially sans all her prior content -- at all moots specific performance.  On the Court of Appeal's theory, it'd be fine for YouTube to ban you every single time you posted anything as long as, once you told 'em that was a violation of their TOS, they then let you back on -- even if that transpired a thousand times and meant that your content was never on for more than a second at a time.  I'm quite confident that's not what the TOS say, or are reasonably interpreted to say, when they tell you that you'll be allowed to use YouTube so long as you comply with the TOS.

There's not supposed to be a right without a remedy.  The TOS grants a right.  I think there should be at least some sort of meaningful remedy -- even if not damages -- when the party that drafted those terms concedes (at least for purposes of a demurrer) that it violated them by kicking off someone for no good reason and deleting forever every single aspect of her content.

But maybe that's just mushy-headed me.

Davis v. United States (9th Cir. - Jan. 25, 2016)

Al Davis isn't having a good year.  For one thing, he's dead.  For another thing, earlier this month, the NFL didn't allow him (or, more accurately, his family) to move the Oakland Raiders to Los Angeles.

Then, today, the Ninth Circuit delivered yet another blow, reversing a district court's holding in favor of the Davis family in an income tax refund action that Davis had filed in 2011.  As a result, Davis gets smacked with additional millions of dollars in tax liability.

You gotta feel a little bit bad for the guy.  Sort of.

Still, I'm no Raiders fan.  And if they do move to San Diego -- as is distinctly possible -- here's one former Chargers fan who's not going to root for 'em.

Sorry, Al.

Stanger v. China Electric Motor (9th Cir. - Jan. 15, 2016)

My job's hard sometimes.  Well, not "hard".  And not really my "job" either.  But sometimes I simply don't have anything good to write about.  Or anything at all.

Like today.  No published opinions from the Ninth Circuit today.  And then, in the California Court of Appeal, something I've never seen before:  a "server problem" that's prevented the opinions from being posted.

Whatchagonnado.

So I guess I'll have to reach back to Friday.  To a Ninth Circuit opinion holding that Judge Real didn't adequately explain his decision?

I'm shocked.  Absolutely shocked.  Who'd have thunk?!  (Answer:  Everyone.)

Note also that it only took the Ninth Circuit 35 days after the scheduled oral argument -- which it didn't need (or have) -- to write the opinion.

Some reversals ain't hard.

Coker v. JPMorgan Chase Bank (Cal. Supreme Ct. - Jan. 21, 2016)

The bank generally can't collect a deficiency judgment when it forecloses on your home.  But can it do so when it agrees to a short sale in lieu of foreclosure?

Of course it can't.  As the California Supreme Court unanimously holds.

That's a entirely just, and correct, result.

And JPMorgan Chase Bank is a complete jerk for arguing otherwise.

People v. Orozco (Cal. Ct. App. - Jan. 21, 2016)

"On August 7, 2014, the police pulled Orozco over and a routine license plate check showed the car Orozco was driving had been reported stolen. Orozco was the vehicle's sole occupant, the car's ignition was damaged, and it was running without a key. The police report listed the car's value at $301."

Seriously?!  There's an actual car that's running that's only worth $301?!  And it's worth stealing?!?!

Apparently so.

City of San Diego v. Superior Court (Cal. Ct. App. - Jan. 20, 2016)

This is why you don't wait until the last day to file something.  Because you might be reading the statute wrong.  Even if you -- and the trial court -- are pretty confident you're right.

I know we're all busy.  Really busy.  But, in most cases, there's no reason to wait until the last day to file something.  Particularly when you're dealing with claims deadlines and the like.

Particularly when, as here, you're talking about a deadline that's six months long, and especially when (as here) it's a real case, waiting until the last minute can do some serious harm.

As the plaintiff here -- and her counsel -- discovered.  Undoubtedly to their dismay.

United States v. Estate of Hage (9th Cir. - Jan. 15, 2015)

Every decade there's a particular district judge in the Ninth Circuit who's a problem.  At least in the opinion of the Ninth Circuit.

In the 2010s, it appears to be Judge Robert Clive Jones.

You wouldn't have necessarily thought initially that it would be Judge Jones to be the one to go off the rails.  He's a former Cliff Wallace clerk.  He was a bankruptcy judge for fifteen years.  He was unanimously confirmed by the Senate to the district court in Nevada when he was appointed by Bush in 2003.

Yet here we are.

Those readers in Nevada may well be familiar with Judge Jones already.  Others may know a bit less about his peculiarities.

And I'm not talking about his strong conservative streak.  One that's gotten him reversed numerous times by the Ninth Circuit.  Or his relatively "out there" beliefs about various matters; for example, his written opinion that it's conceivable that a "meaningful percentage of heterosexual persons" would refrain from getting married were gay marriage recognized.

No, I'm talking instead about something different.  A pattern that puts him up there with some other notorious district court judges in the Ninth Circuit.  Something that I can explain fairly well just by reference to the words used by Judge Graber, joined by Judges Wardlaw and Murguia, in this Ninth Circuit opinion:

"The United States brought this action for damages and injunctive relief against E. Wayne Hage (now deceased) and his son, Wayne N. Hage, alleging that they grazed cattle on federal lands without a permit or other authorization. The district court found that, in fact, the Hages had grazed cattle on federal lands without a permit or other authorization. The court nevertheless ruled almost entirely against the government by holding—contrary to longstanding binding precedent—that the Hages’ water rights provided a defense to the government’s claims of trespass. The district court also ruled against the government on a counterclaim—filed at the district court’s invitation—even though the counterclaim plainly was barred by the statute of limitations. Finally, the district court held two federal agency officials in contempt of court for their ordinary actions, lawfully carried out within the scope of their regulatory and statutory duties, despite the fact that the actions had no effect whatsoever on this case. In this opinion, we vacate in part and reverse in part the judgment on the merits, and we remand for further proceedings before a different district judge. . . .

Defendants openly trespassed on federal lands. Rather than simply resolving the fact-specific inquiries as to when and where the cattle grazed illegally, the district court applied an "easement by necessity" theory that plainly contravenes the law. The district court also encouraged Defendants to file a counterclaim that was clearly time barred. The only support that the court cited to overcome the obvious jurisdictional problem was a decision that stands for the opposite conclusion. Moreover, as discussed more fully in a separate disposition filed today, the court grossly abused the power of contempt by holding two federal agency officials in contempt of court for taking ordinary, lawful actions that had no effect whatsoever on this case. [Citation]

A dispassionate observer would conclude that the district judge harbored animus toward the federal agencies. Unfortunately, the judge’s bias and prejudgment are a matter of public record. On the first day of the 21-day trial, the judge stated: "the Bureau of Land Management, you come in with the standard arrogant, arbitrary, capricious attitude that I recognize in many of these cases." "[I]t’s my experience that the Forest Service and the BLM is very arbitrary and capricious." "Your insistence upon a trespass violation, unwillful —your arbitrary determination of unwillfulness [sic: willfulness] is undoubtedly going to fail in this court."

During the contempt hearings, the judge stated: "I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for [animal unit months], for trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer." Compare 43 C.F.R. § 4150.3 (providing that the amount due for willful unauthorized grazing includes "all reasonable expenses incurred by the United States in detecting, investigating, [and] resolving violations"). The judge’s statements in this case reflect both pre-judgment of the merits and bias against the federal agencies.

Judge Jones’ improper treatment of government officials and his improper statements about federal agencies were the subject of United States v. United States District Court (In re United States), 791 F.3d 945 (9th Cir. 2015). [Which Judge Graber then discusses at length.]  We also have expressed concern about Judge Jones’ conduct in several other recent cases. See La Raza, 800 F.3d at 1046 (remanding to a different district judge because a reasonable observer could conclude that his "feelings against out-of-state attorneys are both well-established and inappropriately strong" and noting that this court had earlier found his comments "troubling" in Henry A. v. Willden, 678 F.3d 991, 1012 (9th Cir. 2012)); Benvin v. U.S. Dist. Court (In re Benvin), 791 F.3d 1096, 1104 (9th Cir. 2015) (per curiam) ("Here, the appearance of justice will best be served by reassignment to a different judge. The current district judge [Judge Jones] has already expressed explicit views on the appropriate terms of the parties’ plea agreement, suggested the terms he would and would not accept, and explained that he would not grant any motion dismissing forty-nine counts of the indictment unless the government complies with such terms."); Townley v. Miller, 693 F.3d 1041, 1043–45 (9th Cir. 2012) (order) (Reinhardt, J., concurring) (stating that Judge Jones’ actions "can only be explained as a deliberate attempt to evade review by higher courts" and that "[s]uch arrogance and assumption of power by one individual is not acceptable in our judicial system"). On remand, we instruct the Chief Judge of the District of Nevada to assign the case to a different district judge."

A federal judge repeatedly rebuked in this manner by the Court of Appeals might well reflect upon his conduct and decide to modify it.

But my bet is that that's not what we're going to see from Judge Jones, and that what we've started to see about him in the Ninth Circuit is only the beginning, not the end.

Kim v. Toyota Motor Corp. (Cal. Ct. App. - Jan. 19, 2016)

One series of cases from the Court of Appeal says X.  Another line of precedent from the Court of Appeal says Z.

So, today, the Court of Appeal says that the right rule is actually Y.  Somewhere between these two competing principles.

Or, in the words of Justice Segal:

"The Kims challenge the trial court’s denial of their motion in limine to exclude evidence that the custom of the automotive industry was not to include ESC [Electronic Stability Control] as standard equipment in pickup trucks. In rejecting this challenge, we part company with one line of cases stating that evidence of industry custom and practice is always inadmissible in a strict products liability action, and with a recent case suggesting such evidence is always admissible. Instead, we hold that evidence of industry custom and practice may be admissible in a strict products liability action, depending on the nature of the evidence and the purpose for which the proponent seeks to introduce the evidence."

The cases the Court of Appeal cites start twenty and thirty years back.  You'd think that if the Court of Appeal was so fractured, the California Supreme Court might want to get on the stick and decide which line of precedent is correct, no?

People v. Valenti (Cal. Ct. App. - Jan. 14, 2016)

You'll know where this case is going even when I just recite the first paragraphs of the statement of facts:

"In 1983, eight-year-old James K. met defendant at the Santa Monica Pier. James liked to break dance with his friends in Santa Monica and Venice while his father fished nearby. James approached defendant, who was photographing the break dancers, and asked defendant to take pictures of James and his friends, who were hoping to book a commercial. Defendant and James began to spend time together and soon, James’s 10-year-old sister, Alexis, asked to come along."

Yeah, that's right.  It's a molestation case.  The guy sexually abused 15 kids over a period of nearly 30 years.  The guy was a soccer coach in Lancaster, for goodness sake.  Oh, yeah.  One more tidbit.  "[D]efendant’s apartment was 'the place to be' for neighborhood boys . . . . He had stocked it with big screen televisions, video games, food, and candy. Defendant also took Justin and his friends to the desert to shoot BB guns. On the way, the boys took turns sitting on defendant’s lap to steer the car."

Ugh.

The ultimate end is what you'd expect.  Mr. Valenti's sentenced to ten years plus 120 years to life.  He gets some tiny relief in the Court of Appeal, but it won't matter.  He'll still die in prison.  And not have a good time during his residence there.

The Court of Appeal's factual recitation follows a predictable pattern, but there were a couple of surprising statements in there.

For example, after the first paragraph quoted above, which introduces 10-year old Alexis to the reader, Justice Lavin's opinion states:  "By 1986, defendant and Alexis had started dating. Alexis was 13 years old; defendant was 24."

Dude!!  That's a weird way to describe the interaction between someone who was 10 years old when she met an adult, and who's now only 13. "Dating".  A 24-year old doesn't "date" a 13-year old.  In common parlance, anyway.  A 24-year old might "molest" such a child, or "stalk" her, or "act inappropriately towards" her.  But "date"?!  That's a surprising way to describe it.

But what's perhaps even more surprising is the next sentence of the opinion:

"They married the following year, on August 11, 1987."

WHAT?!?!

Alexis was 14.  Valenti was 25.  I didn't even know you could get married at 14 in California.  I thought that was the province of places like . . . well, I won't mention any particular state.  But I didn't think you could do such a thing here.

But, yeah, apparently, if you've got the consent of one of your parents, and go to court and get a judge to sign off on it, 14's perfectly okay.  Indeed, it appears that any age is okay in California.  Fourteen.  Twelve.  Seven.  Whatever you can convince a judge to sign off on.

I'd hate to be the judge and/or parent who signed off on the marriage here.  Not a wise move.  And I'd be very interested to hear what type of evidence was submitted on the point.  'Cause there's exceptionally little that one generally has to say on these matters, I'd think, except:  "Your honor, she's 14, he's 25.  Thank you very much."  Marriage denied.

Anyway, to reiterate, 15 molested kids.  Over decades.

You can read the entire opinion for details about the legions of children Valenti molested.  Disturbing, to say the least.

Can I just say again, by the way, that the defendant here married someone he met when he was 21 and she was 10, that he started "dating" her when she was 13, married her when she was 14, and that a judge signed off on all that?!

I'm generally a fan of consensual conduct.  So on many days, if you asked me whether anyone under, say, 16 should ever be allowed to marry, I might well prefer not to have an utterly categorical rule, and to think that there might be some unusual cases in which, say, an incredible mature 15-and-a-half-year old wants to get married to an exceptional 16-year old, and where everyone's parents appear totally informed and think it's a great idea, well, okay, maybe I can at least conceive of such a situation and think that maybe we should not take uniformly away their right to get married in every single such case.

But geeze.  This case makes me rethink that assumption.  Because a system that allows a 14-year old to marry a 25 year old she met when she was 10, and in circumstances like those here, make me think that the downsides of mistakenly allowing someone to marry an underage spouse might not be worth the upside in the exceptional case.

'Cause apparently we're far from perfect from screening out "upstanding" 25-year olds who want to marry a 14-year old girl he met when she was 10 from, say, a straight-up child molester.

Like Mr. Valenti.

Fue v. Bitter (9th Cir. - Jan. 15, 2016)

It's not unusual that for a Ninth Circuit panel to dismiss a habeas petition.  Especially if that panel includes Judge O'Scannlain.

It is, however, somewhat unusual for Judge Bybee to dissent from such a disposition and to argue that equitable tolling should apply.

All that happens here.

The majority, in an opinion authored by Judge Rawlinson, thought that the prisoner here sat on his butt and should have followed up more diligently with the California Supreme Court to figure out what was going on with his state habeas petition in that court.  But Judge Bybee doesn't like a rule that would have prisoners repeatedly pester state courts with inquiries about their petitions, and thinks that what the defendant here did was reasonable given what he was told by the clerk.

Let's get your take on one issue.  Imagine that you file a habeas petition with the California Supreme Court.  There's no deadline for them to act on this petition, and it's not unusual for them to take a year or two to get around to the thing.  Once they do, however, the clerk is required to "promptly" let you know what happened to your petition; e.g., send you a copy of its denial.

You haven't heard boo (read: anything) from the California Supreme Court.  It's been 14 months, and you're still in prison, without a word, so you send the court a letter that says, essentially: "Hey, what's up?"  At which point the clerk writes you back and says:

"This will acknowledge receipt of your letter received February 3, 2011, I checked our dockets and found no record of a pending petition for writ of habeas corpus having been filed on or about November 2009.”

What do you think that letter tells you?

The majority thinks the letter tells you that your petition has been denied.  The dissent thinks that letter tells you that they never got a petition from you.  That latter interpretation is, indeed, what the prisoner as well as his attorney thought it meant as well.  (The prisoner wrote his lawyer saying "What should I do?" and his lawyer responded "explain to the Court . . . that you already sent your petition” and to seek leave to file the petition again.)

Both interpretations are plausible.  The majority focuses on the word "pending".  The dissent thinks it reasonable that a reader wouldn't parse the thing out so finely and focuses on no petition "having been filed on or about November 2009."

The petition had, in fact, been filed.  And dismissed long ago.  But the clerk had never told the prisoner about the dismissal at the time.

Language is ambiguous.  Time is fluid.  And fleeting.  And what counts as "excusable" conduct is far from certain.

Two different approaches to these concepts here.

In Re Albert A. (Cal. Ct. App. - Jan. 14, 2016)

I'm not going to argue about the Court of Appeal's legal analysis in this case.  Which reverses the judgment of the trial court, which awarded custody of these two children to their grandmother.

But can we nonetheless please make what the trial court ordered happen?  ASAP.  Because these kids are infinitely better off with their grandmother instead of their mother.

Seriously.

Leider v. Lewis (Cal. Ct. App. - Jan. 14, 2016)

The elephants win!

A little, at least.  Some exercise and a little softer ground.  No release, though.

Chen v. Kraft (App. Div. - Jan. 13, 2016)

You can't put your apartment on Airbnb.  At least in Los Angeles.  Your landlord can evict you if you do.

That's the law.

People v. Leon (Cal. Ct. App. - Jan. 13, 2016)

These defendants are sentenced to do a ton of time in prison for some home invasion robberies.  The Court of Appeal doesn't give 'em much relief.

But if you read the Court of Appeal's (lengthy) opinion, you'll realize that several of these defendants will have a darn good habeas petition.  One that'll require an evidentiary hearing at a minimum.

This one's far from over.

Bravo v. City of Santa Maria (9th Cir. - Jan. 12, 2016)

Today was a good day in the Ninth Circuit for civil rights plaintiffs.  And their lawyers.

First you have the Ninth Circuit affirming a fee award of over $1 million to a prevailing plaintiff who obtained $5000 in damages at trial as a result of an unconstitutional entry into a home.  That's a pretty piece of change.  The attorney's fees anyway, not the damage award.

I must say that it seemed a pretty striking set of facts.  The warrant that the police officers got to search the residence failed to mention that the suspect hadn't lived at that residence for seven months, and, indeed, had been in prison that entire time.  And the entry into the home wasn't some tiny little affair:  "At 5:26 a.m. on April 26, 2006, a Santa Barbara Police Department SWAT team knocked on the front door of the Bravos’ residence, announced their presence, and three seconds later shot off the locks and broke down the door. Simultaneously, the team deployed two 'flashbang' grenades outside of the back door."

Do that to my house and I'll be lucky not to have a heart attack and die right there.

A jury might well have rationally awarded substantially more than $5000 in damages.  But $5000 was how they saw the case.

So $1 million in fees?

The Ninth Circuit's fine with that.  Judge Reinhardt concurs and explains why he's totally fine with that, especially given the nature of the facts.  But Judge Hawkins' opinion focuses instead on the prior $360,000 settlement that the plaintiffs were able to extract from the other defendants.  Given that the claims against the various defendants were inextricably linked, and given (the majority agrees) that there were some real public benefits that resulted from this litigation, it wasn't merely a tiny victory, notwithstanding the $5000 (plus $360,000) result, so $1 million in fees was an appropriate result.

Given that the other published opinion today reversed the dismissal of a different Section 1983 case on the merits, it's a good day to be a civil rights attorney.

Or at least a slightly better one.