People v. Lopez (Cal. Supreme Ct. - Nov. 25, 2019)

Justice Kruger writes a pretty good introduction to this opinion, which overrules precedent and explains why.  She writes:

"Acting on an anonymous tip about a motorist’s erratic driving, a police officer approached defendant Maria Elena Lopez after she parked and exited her car. When the officer asked if she had a driver’s license, she said she did not. Police then detained her for unlicensed driving and, without asking her name, searched the car for Lopez’s personal identification. They found methamphetamine in a purse sitting on the front passenger’s seat.

The trial court held the search was invalid under Arizona v. Gant (2009) 556 U.S. 332 (Gant), which narrowed the scope of permissible warrantless vehicle searches incident to a driver’s arrest. The Court of Appeal reversed. It held that the search was authorized under this court’s pre-Gant decision in In re Arturo D. (2002) 27 Cal.4th 60 (Arturo D.), which allowed police to conduct warrantless vehicle searches for personal identification documents at traffic stops when the driver failed to provide a license or other personal identification upon request.

We granted review to consider the application and continuing validity of the Arturo D. rule in light of subsequent legal developments. At the time Arturo D. was decided, no other state or federal court had recognized an exception to the Fourth Amendment’s warrant requirement for suspicionless traffic-stop vehicle searches. The same holds true today; California remains the only state to have recognized such an exception. Considering the issue in light of more recent decisions from both the United States Supreme Court and our sister states, we now conclude that the desire to obtain a driver’s identification following a traffic stop does not constitute an independent, categorical exception to the Fourth Amendment’s warrant requirement. To the extent Arturo D. held otherwise, we conclude that rule should no longer be followed. We reverse the judgment of the Court of Appeal and remand for further proceedings."

Not surprisingly, the decision is not unanimous.  It's instead a 4-3.  The dissent is authored by Justice Chin, which isn't surprising, since he was in the majority in Arturo D.  Alongside Justice Chin in the dissent are Chief Justice Cantil-Sakauye and Justice Corrigan; again, about what you'd expect.

But it's a new California Supreme Court.  It's not just that Gant came along in 2009; a case that itself departed from precedent.  It's also that the composition of the California Supreme Court is different -- more left-leaning -- than it was 17 years ago.  Which in part explains this opinion.

Though not entirely.  This is how the dissent ended in Arturo D. back in 2002.  Bear with me, as it's a little long:

"Who among us can ever forget the horrendous events of September 11, 2001, when our nation suffered the most destructive terrorist assault in our history? As this opinion is being written, our nation is undergoing a painful recovery from the devastating physical and psychological effects of that day. One part of this recovery process has been an effort to devise and implement more effective methods of law enforcement to protect the security of our citizens and our institutions. Another and equally important part of this process must be a rediscovery of and rededication to the principles upon which our nation was founded and which have made it a true beacon of liberty throughout the world.

One principle, so basic to our personal liberty, is the prohibition that the Fourth Amendment to the United States Constitution places on unreasonable searches and seizures. In determining whether a search is "unreasonable," a court must adhere to the decisions of the United States Supreme Court articulating the meaning of that word in a similar case. Virtually identical to the two cases here is the high court's unanimous decision in Knowles v. Iowa. [Cite] There, the court held that when a police officer has stopped a motorist for a routine traffic violation, and the officer has not arrested the motorist, the officer may not rummage through the vehicle.

Today's majority decision does nothing to enhance our security and does much to erode our Fourth Amendment rights. Under California law, an officer making a routine stop for a traffic violation may arrest a motorist who fails to produce proof of identity and, within the limitations of the Fourth Amendment, may search the vehicle incident to the arrest. Given this ability, there is no justification for the warrantless, nonconsensual search of a car's interior when the officer has made no arrest and the officer lacks probable cause to believe that the car contains contraband. In announcing a blanket rule authorizing such searches, the majority disregards the high court's decision in Knowles and chips away at one of the fundamental freedoms guaranteed by our federal Constitution."

Sure, that dissent was written by Justice Kennard.  But it was also joined by Justice Brown.  So it's not completely a left-right issue.  There's definite room for concern on both sides of the aisle.

People v. Wilson (Cal. Ct. App. - Nov. 20, 2019)

I'm usually pretty confident that what I say is right.  At least in my own mind.  (Others, obviously, may disagree.)  But when I'm not confident, I'm happy to say so.

So when I read this opinion, I definitely had a thought.  A thought that I think is right.  But I'm not a hundred percent sure.  Hence the caveat.

But if I am right, the Court of Appeal gets this one wrong.

Here's the deal:

The defendant in a criminal case makes a request to represent himself.  The trial court denies it on the ground that the request was equivocal (e.g., uncertain/conditional).  Defendant appeals.

On review, the Court of Appeal concludes that the trial court was wrong, holding that the request was squarely unequivocal.  So reversal, right?

Wrong.  Because the Court of Appeal thereafter holds that the request was nonetheless untimely, so the trial court properly denied the request -- albeit on the wrong basis.

Okay, we know that the Court of Appeal reviews judgments, not decisions, and thus may affirm on alternative grounds.  That part's clear.  So if, for example, the untimeliness of the request precluded the trial court (jurisdictionally or otherwise) from granting it, it makes total sense to affirm on the alternative timeliness ground.

But, here, the Court of Appeal recognizes (correctly) two different things, both of which to me seem to preclude a decision to affirm on these alternative grounds.

First, the Court of Appeal flatly says that the request here "was not timely," but its support for that proposition is merely citations that the Court of Appeal describes as holding that "a Faretta motion made on the day of trial may be found to be untimely (People v. Frierson (1991) 53 Cal.3d 730, 740, 742), as may one made four days before trial is to begin (People v. Scott (2001) 91 Cal.App.4th 1197, 1205)." (emphasis added).  "May" does not mean "Is".  "May" implies discretion.  As, I imagine, do the holdings referred to by the Court of Appeal.  So, yes, the trial court perhaps could have found the motion untimely.  But it didn't.  Nor, I strongly suspect, was it required to so find.  To put it another way, the trial court could have found the motion timely, even though it was made only a day before the trial.  That's for the trial court to decide.

If something's subject to the discretion of the trial court, and the trial court doesn't exercise that discretion (e.g., because it erroneously fails to do so because it bounces the motion on a different, erroneous, basis), isn't the proper remedy to reverse and remand for the exercise of that discretion?  Not to simply affirm because the trial court could -- but didn't, and was not required to -- exercise its discretion in a particular way?  I would think that's the necessary, and valuable, structure of appellate review.  Otherwise you're depriving the trial court (as well as the parties) of its discretion.  As well as getting it wrong.  Since, for example, the trial court here might well have been thinking:  "I will deny the motion because it's equivocal, but had it been unequivocal, I'd have found it totally timely and would have granted it, holding (correctly) that a day before trial is enough time."  Something that a straightforward decision to affirm (like here) precludes.

The second problem is related to the first, though I think it's independent as well.  The Court of Appeal notes that even had the request been untimely (and, as noted above, a trial court may have perhaps properly concluded otherwise), even "an untimely Faretta request requires consideration of the quality of counsel’s representation, the defendant’s prior proclivity to substitute counsel, the reasons for the request, the length and stage of the proceedings, and the disruption or delay which might reasonably be expected to follow the granting of such a motion" -- things that (again) the trial court does, in the exercise of its discretion, not the Court of Appeal.  The Court of Appeal decides, again, that the trial court could have evaluated these factors to support the denial of the Faretta request, and (persuasively) explains why.  But I have no doubt that the trial court could also have evaluated these same factors and (properly and persuasively) come to the conclusion that they support the grant of the untimely Faretta request instead.

That's what we mean by -- and is often the case with -- "discretion".  One can go either way.

And if the trial court can go either way, then it's for the trial court to decide which way to go.  Not for the Court of Appeal to decide to take that option away -- to obviate this discretion -- by affirming on a basis that the trial court may well have rejected.

So, yeah, we review judgments, not reasons.  But I think we routinely reverse and remand for the exercise of the trial court's discretion, especially when (as here) the trial court never exercised that discretion because it erroneously decided the case on other grounds.  Seems to me that we should obviously (and correctly) do that here as well, rather than -- as the Court of Appeal does -- simply affirm the decision below.

Now, ultimately, do I think the trial court will come out the same way as the Court of Appeal?  Absolutely.  I have little doubt that the trial court, upon remand, would say "Yeah, I didn't like the request, and had I thought it unequivocal, I would have denied it as untimely anyway."  At which point the ultimate result would be the same.

But being confident -- based on human psychology and intuition -- about a result is one thing, and actually having it be done legally is another.  There's a chance (albeit not a big one) that the trial court would honestly and forthrightly say upon a remand, "You know, had it been unequivocal, in the exercise of my discretion, I'd have granted it."  And if that's the case, then I think we all agree the guy should get a new trial.

So I'm on board for occasionally affirming on alternative grounds.  It sometimes expedites things.

But not when, as here, the trial court's discretion on those alternative, unaddressed grounds can go either way.

And I think that's the right result not only normatively, but even under existing precedent.

Patterson v. Padilla (Cal. Supreme Ct. - Nov. 21, 2019)

I don't think it's very surprising that the California Supreme Court struck down today the challenged provisions of the Presidential Tax Transparency and Accountability Act (Elec. Code, § 6880 et seq.), which prohibit the Secretary of State from printing on a primary election ballot the name of a candidate for President of the United States who has not filed with the Secretary of State the candidate’s federal income tax returns for the five most recent taxable years.  The language of the California Constitution in that regard (article II, section 5(c)) are nontrivially to the contrary.  So you've got a unanimous decision today that largely reads as one would expect.  Nor is it surprising that the opinion's author is Chief Justice Cantil-Sakauye.  That too is as it should be.

But it is interesting to see Judge Cuellar's concurrence.  He's the only person who writes separately.  And he does so to highlight why, in his view, it makes eminent sense to have presidential candidates reveal their tax returns -- and for the electorate to require as much.  All of this notwithstanding the holding in which he joins.

All good stuff.

People v. Lopez (Cal. Ct. App. - Nov. 20, 2019)

A guy is a heroin user, and to support his habit, a relatively low-level seller of the stuff.  He's high on heroin himself when he gets caught with 35.9 grams of the stuff -- around 0.08 of a pound.  That stuff is contained in 24 separate bindles.  He's also got some money on him: three $20 bills, three $10 bills, and 11 $1 bills.  That'll give you a sense of what type of heroin dealer he is.

He's sentenced to 17 years, 8 months in prison.

Clearly, people should not sell (or use) heroin.  Of that I have little doubt.

Though I wonder what history will say about locking people up for nearly twenty years for this type of stuff.  Or even, after the Court of Appeal's partial reversal, a decade-plus.  There's some solace, to be sure, that one (potentially) gets time off for good behavior, at least on the state side.  But there's an underlying problem here.  One for which we're not even approaching a solution.

So we use potentially lengthy periods of incarceration.  Someone less lengthy than we imposed in the recent past.  But still lengthy.  Without, I suspect, much of a resulting dint in the underlying trade.  As a plethora of heroin users are going to sell the stuff, if necessary, to pay for their habit.  As sure as the sun rises in the morning and sets in the evening.  Regardless of the length of their potential imprisonment.

And there are always others to take their place after any particular user/dealer is put on ice.

The nature of the trade.

Vega-Anguiano v. Barr (9th Cir. - Nov. 19, 2019)

I'm on the sixth page of the Ninth Circuit's only published opinion today, reading along with dense text.  Yet I'm not even past the official "Summary" yet.  The actual opinion hasn't even started.

It's a super tiny caption.  But the "Summary" is incredibly long.

In part, that's a result of there being (1) a majority opinion, (2) a concurrence, and (3) a dissent.  You want to summarize all of these.  I get it.

But still.  The actual (three) opinions are less than 20 pages.  total.  A "summary" that takes up 5 pages could probably be a bit more concise.

Silbaugh v. Chao (9th Cir. - Nov. 14, 2019)

Now here's a neat little case.  Especially if you're (like me) a professor who teaches civil procedure.

It's a relation back case under Rule 15; in particular, against the United States.  You get relation back (for statute of limitations purposes) against the government under Rule 15(c) under if you've made a mistake in naming the correct party -- e.g., here, you named your supervisor as the defendant instead of the formal head of the relevant executive agency (here, the Secretary of Transportation) -- but then later correct that mistake and the U.S. knew within 90 days that you made that mistake because you delivered "process" on the Attorney General or relevant U.S. agency.

The question in this case is:  What does the Rule mean by "process?"

Truthfully, it's got a totally straightforward meaning.  By "process" we mean the summons and complaint.  The documents that you use to commence a lawsuit.

Which is precisely what the plaintiff here did.  She served a copy of the summons and complaint on both the U.S. Attorney as well as on the Attorney General.  End of story, right?

Not quite.

Because the copy of the summons here was not signed by the court clerk.  Which it normally has to be in order to constitute proper service; e.g., to require the defendant to respond to the complaint under penalty of default.

So does an unsigned copy of the summons (plus the complaint) count as "process?"

Under the normal service of process rules, the answer would clearly be "no."  It doesn't count as "process" -- or, more accurately, it doesn't count as valid process.  It wouldn't be sufficient to permit the court to exercise jurisdiction or to award a default judgment.

Which is why, intuitively, you might think that "process" is defined in the rule as a summons that's signed by the clerk plus a complete copy of the complaint.  And, if the rule was defined that way, the U.S. would be right, and there'd be no relation back here.

But you'll look at the FRCP in vain for such a definition.  It just uses the word process.  Repeatedly, to be sure.  But it doesn't define it.

Which leaves it open for Judge Watford to hold as he does here.  The U.S. was indeed served with "process," he says, because it definitely received a summons and the complaint.  Which means that the purpose of Rule 15 was satisfied; it knew full well that it had been served, albeit that a mistake had been made in the formal naming of the defendant.  Hence there's relation back.  Since Rule 15(c) does not say there has to be service of "valid" process to get relation back, the point of relation back is to ensure notice (which there was), and we strongly prefer adjudications on the merits rather than hypertechnical procedural dismissals.  So held.

All of which seems right to me.

I'll add one other point in this regard that Judge Watford's opinion doesn't mention.  Not only do I not see a formal definition of process as including a signed summons, but there are other provisions in the FRCP that suggest that the rules are fully capable of requiring process to be "valid" when they so require.  For example, in Rule B (governing attachment), paragraph (2)(a) says that a court may not order garnishment or attachment unless "the complaint, summons, and process of attachment or garnishment have been served on the defendant in a manner authorized by Rule 4."  So if process wasn't served in this manner (e.g., the summons wasn't signed), it'd be invalid, because the rule says so.  Yet Rule 15(c) doesn't do the same thing.

In any event, I think that Judge Watford rightly interprets the rule here to be consistent with its obvious (and salutary) purpose.  We give relation back when there was notice.  Here, there was notice.  Yes, we're a bit nit-picky when the United States is concerned, and, yes, the United States has promulgated rules that are very much in favor of . . . surprise, surprise . . . the United States.  But the rule here just says process, and that means and summons and complaint, and that's indeed what the U.S. got.  That it wasn't signed isn't part of the rule.  Even though that's what you might ordinarily think "process" means as applied to other rules with slightly different purposes.

Fair enough.

Altera Corp. v. CIR (9th Cir. - Nov. 12, 2019)

Today's an unusual day indeed.

The Ninth Circuit publishes this today.  It's a dissent from the refusal to take a case en banc.  Nothing totally unusual about that, right?

Except it's a tax case.  Not the usual subject of an en banc call.  And not even a tax case that affects a huge number of "regular" people:  It's about a Ninth Circuit opinion last year that upheld a Tax Court ruling that related entities must share the cost of their employee stock compensation.  Yet that opinion sees a huge volume of amici and a spirited dissent for the refusal to hear the case en banc.  Not your usual degree of attention to a tax opinion.

The opinion is unusual is one other way as well:  the huge number of recusals.  How many?  Not one.  Not two.  Not three.

Ten different Ninth Circuit judges recuse themselves from the en banc call:  Judges McKeown, Wardlaw, Bybee, Bea, Watford, Owens, Friedland, Miller, Collins, and Lee.

So it's an opinion that may affect at least a nontrivial number of people in a particular socioeconomic group.  Including but not limited to Ninth Circuit judges.

People v. Chubbuck (Cal. Ct. App. - Nov. 12, 2019)

Defendant was convicted of unlawfully taking a motor vehicle, but it's not your usual stolen car case. Indeed, I'm not even sure what the defendant was trying to do.  He breaks into a storage yard at 4 a.m. and then starts driving -- inside the storage yard -- a vehicle that's typically used to move storage containers, and does so for 15 minutes or so.  The owner of the storage yard and the police then arrive and arrest him.

What was he trying to do?  Steal a storage container?  If so, he was remarkably bad at it, and didn't even seem to try.  Just joyride in the storage facility?  Weird.  And hardly worth the seven years in prison he received.

So not your usual stolen vehicle case.

And not your usual name, either.  The defendant's first name is "Jhyy."  Last name:  Chubbuck.  The opinion even contains a footnote (the first one) about the defendant's name, which was apparently erroneously entered on the abstract of judgment.  Definitely a unique first name, and one I have not seen before.

Board of Trustees v. Chambers (9th Cir. - Nov. 7, 2019)

The Ninth Circuit has only published a couple of opinions in all of November, but the opinion today is a memorable one, if only for its brevity.  The split panel opinion (a year ago) was 64 single-spaced pages, and waxed poetically about whether the voluntary cessation doctrine of mootness applied to cases in which the government lost a lawsuit, repealed the relevant statute, and refused to promise that it wouldn't reenact the thing.

But you'll be hard-pressed to find a shorter en banc opinion than the one issued today, which resolves the dispute (1) unanimously, and (2) in well under a dozen pages.  (Indeed, a full half of the opinion consists entirety of the caption and list of lawyers and amici.)  The en banc court says, basically, that other circuits have found that mootness applies in situations like these, so we're going to join them. Notwithstanding the contrary view of the majority in the panel decision we're reversing.

So short.  And (relatively) speedy.  Though I'll note that it still took the en banc court nearly five months two write its five-and-a-half pages of text.

People v. Martin (Cal. Ct. App. - Nov. 5, 2019)

There's nothing published by the Ninth Circuit or the California appellate courts today.  So I took a brief look at this opinion.  If only because the defendant's name (like mine) was "Martin."

And it's a somewhat weird one.  At least for a relatively unsophisticated reader like myself.  The defendant is a 22-year old who stole a car in Florida, drove it to California, and then led police on a high-speed chase before ditching the vehicle and being caught.  He's got a bit of a criminal history in Florida, but it seems like he's not totally irredeemable.  And does some fairly strange things when he's caught by the police.  (For example, from the opinion:  "Another officer subsequently located defendant walking on Needles Highway, waving his arms as cars passed by, as if he was trying to flag one down. As the officer approached him, defendant lay down on the ground. The officer pulled his patrol car over and got out. Defendant yelled to him, 'Please place me in handcuffs before your partners get here.' He was breathing heavily and asked if he could sit in the patrol car."  Not exactly how most police chases end.)

But okay.  He's convicted of felony evading the police, and it's time for him to be sentenced.  The court thinks that the chase wasn't all that long (two minutes), and Mr. Martin's criminal history isn't all that egregious, so it says that it's going to sentence Mr. Martin to probation.  But the court also says it's a little bit concerned for Mr. Martin's welfare since he doesn't have any family or friends in California (having just gotten here in his stolen car), so orders a recess for Mr. Martin to talk with his counsel to figure out what the most beneficial probation arrangements would be.  Maybe transfer the case (or probation) to Florida?  Something like that.

Here's the part I don't totally understand.  After the recess, Mr. Martin and his counsel come back, and they say that Mr. Martin would just rather be sentenced to prison than receive probation.  The trial court says (essentially), "Really?"  But, yeah, that's what Mr. Martin wants.  To the trial court sentences him to the low end of the imprisonment range.  Which is still 16 months in prison.

Why would someone want to be incarcerated rather than go on probation?  Seems like a no-brainer that the former is worse than the latter.  Strange, eh?

Though I can think of two possible explanations for Mr. Martin's choice.

First, he might think that he'll violate probation anyway.  In which case, yeah, get it over with.

Second, he might think (perhaps combined with the prior explanation) that given his time already served, the ultimate prison sentence won't matter much anyway.  The opinion mentions as an aside that Martin got credit for 256 days of prior jail time.  With a sentence of 16 months, with time off for good behavior, maybe those 256 days of credits means he's not looking at much additional time in actual prison anyway.  Better that, one might perhaps think, than an extended period of probation.

So an interesting choice.  By an interesting guy, Mr. Martin.

U.S. v. Norris (9th Cir. - Nov. 4, 2019)

This seems right to me.  As well as pretty darn good police work.

Someone's sharing child pornography.  The police look up the IP address and discover that it's coming from a router in Apartment 242, and the police obtain a search warrant for that address.

Except that when they execute the warrant, they discover that there's not child porn on the computer there.  So where's the child porn coming from?  They download the access data from the router in that apartment and discover that someone else's computer has been access this router -- notwithstanding the fact that the router is password-protected.  Surprise!

Which is a pretty good move by the child pornographer at issue.  You're worried that the police might figure out it's you if you use peer-to-peer sharing over your own internet connection.  So you use the connection of someone else.  Someone innocent to cover your tracks.

So the police are stymied, but not for long.  They subsequently start using an open-source software program that's aptly named "Moocherhunter" to find out who's been using the router in Apartment 242.  They use a directional antenna and find out that the signal of the computer that's accessing the router in Apartment 242 is much stronger when it's pointed at . . . Apartment 243.

So the police then obtain a search warrant for Apartment 243.  And, lo and behold, they find two computers there that have indeed accessed the router in Apartment 242 and that contain kiddie porn.

Hence the arrest and conviction.

The defendant appeals, saying that the "search" using the Moocherhunter software violated the Fourth Amendment.  But the Ninth Circuit disagrees.  Which seems right.  If you're pumping out electronic transmissions from your computer to pimp your neighbor's password-protected internet connection without his consent, it's not impermissible for the police (or anyone else) to investigate where those transmissions are coming from.  You shouldn't be grabbing their internet in the first place, and your transmissions are in any event public and it's okay for someone else (including but not limited to the police) to point software in your direction to figure out where those transmissions are coming from.

Makes sense to me.  As well as to Judge Rawlinson and the rest of the panel.

AAAJ-LA v. Padilla (Cal. Ct. App. - Nov. 4, 2019)

There's a fight about the degree to which Section 14201 of the Elections Code requires the California Secretary of State to post facsimile ballot materials in languages other than English.  The Court of Appeal resolves that fight.  A resolution in which both sides in a little bit.

What was most interesting to me was to see the list of what languages we're fighting about; in particular, what languages have "minority language groups" that constitute three percent or more of a precinct's population.

Some of the candidates are obvious:  Spanish, Chinese, Mandarin, Korean, Vietnamese, etc.  Some are much less so.

Which of the following language(s) do you think do not have a precinct in California in which three percent or more of the population primarily speaks the relevant language:

(A) Tagalog;
(B)  Formosan;
(C)  Ilocano;
(D)  Khmer.

Answer:  We've got precincts for all of these.  To be honest, I had never even heard of (C), and had to look it up.  More proof that you can learn something new every day.

O'Grady v. Merchant Exchange Productions (Cal. Ct. App. - Oct. 31, 2019)

If you're a company and you add a mandatory "service charge" to the bill, does that constitute a "gratuity" (i.e., tip) that has to be shared only with the relevant service people?

The Court of Appeal says:  "Maybe."

When I first thought about it, that answer didn't seem particularly compelling.  But the more I thought about it, the more it seems to me that the Court of Appeal's answer is correct.

I could imagine lots of "service charges" that fairly clearly aren't gratuities (at least to me).  Even if they're invoked in the traditional food and beverage industries.  For example, say a business added a $3.00 "service charge" for room service, and had a separate category on the bill for a tip.  To me, that charge is fairly clearly not a gratuity.

By contrast, imagine that the hotel adds an 18% "service charge" on to room service bills, and does not include a line for tips.  Well, to me, I'd almost certainly think that's going to the server.  That's a gratuity to me.

I can imagine a million different types of variations.  Here, it's a 21% service charge imposed by a banquet facility.  Well, it's close to 15 and 18 percent, which is the typical "tip" amount.  But it's not exact.  And it's on banquet stuff, which is not a totally mainstream tipping area.  So I could see someone going either way.

Which is what the Court of Appeal is basically saying.  It depends on the fact.  There's no categorical rule.  Sometimes "service charges" are tips.  Sometimes they're not.  Depends on a ton of things.

Not a bright-line rule, so it'll have some transaction costs and uncertainty.  But still the right rule.

Hodges v. County of Placer (Cal. Ct. App. - Oct. 29, 2019)

I get it, Court of Appeal.  I really do.  You're saying that just because the County put the money that belonged to the plaintiff into a "trust" account doesn't mean that there was actually a "trust" (e.g., fiduciary) relationship between the parties.  Just like -- as you say -- "a panda is not a true bear."

But doesn't the partial injustice of the present case nonetheless bother you?  At least just a little?

The plaintiff owes some property taxes on his residential property, and (for whatever reason) doesn't pay them.  Fair enough.  The County of Placer will -- and does -- conduct a tax sale, and sell the thing out from under you.  That's the way we enforce your obligation to pay taxes.  Doesn't bother me in the slightest.

But the value of the property is way greater than the value of the taxes.  Which, again, doesn't bother me.  But it does mean that there's a ton of excess money.  The County sells the property for $530,000.  The overdue taxes, including all penalties etc., consists of less than a tenth of that:  approximately $37,000.  Then the County inexplicably keeps another $45,300 that, as the Court of Appeal explains, "went to other charges and expenses which the County did not explain."

And, in the end, after keeping the money for nearly two full years, the County gives the plaintiff the balance of what it thinks it owes him:  $437,096.16.  But doesn't pay a penny of interest on the nearly half a million dollars of plaintiff's money that the County has held on his behalf for the 18+ months in the meantime.  (Parenthetically, the Court of Appeal doesn't mention this, but on the other side, if you are even a single day late in paying your property taxes, the County instantly charges you interest of 10% on the entire balance.  Sounds fair and equitable, right?)

The County held that half million dollars for a ton of time.  It got value for that.  It earned interest, didn't have to float bonds, etc.  It demonstrably got a benefit.  And, reciprocally, the plaintiff incurred financial harm in not getting that money earlier.  Time value of money and all.  A fairly important (and basic) concept.

Why shouldn't the County be forced to pay at least a little bit of interest?  Why, during the time it kept this money, wasn't the County at least a little bit in a fiduciary relationship with the plaintiff?

It's bad enough to take over $45,000 of the plaintiff's money for "charges and expenses which the County did not explain."  It adds insult (and injury) to injury to pile on by not paying even a single penny of interest on the nearly half million dollars of someone else's money you've kept (to your demonstrable benefit) for nearly two years.

Yes, sometimes a "trust" account isn't really indicative of having a "trust"-like relationship with another party.  But sometimes that "trust" account, alongside the facts and equities of the underlying relationship, does impose at least some obligation of trust and fidelity.  Or at least should.

And not paying even a single dollar of interest here would, to me, seem to qualify as an inequitable and unjust result.  For which we could -- but the Court of Appeal does not -- provide a remedy.

My take, anyway.  FWIW.

Denham v. City of Richmond (Cal. Ct. App. - Oct. 25, 2019)

This makes sense to me.  Times two.

The general plan of a City allows future residential development of various hillside locations.  But the residents of that City decide that this would be unattractive.  So they propose and adopt an initiative that (generally speaking) stops residential development in this area, and leaves it agricultural and (in essence) attractive.

So far so good.  The people have that right.  (Assuming it's not a taking, etc.)

Here's the problem:

The initiative's a messy one.  It's not perfectly written.  As one might expect with citizen-initiated proposals, which don't go through the same type of substantive legal review as measures adopted by the City pursuant to its usual (byzantine) planning process.

So while the initiative is clear in a the overwhelming majority of its respects, it accidentally failed to amend various other provisions of the City's general plan in which the hillsides at issue were listed as amendable to residential development.  It just forgot about (or overlooked) these.

Which in turn means that, after the adoption of the initiative, the City's laws were internally inconsistent.  One big chunk of them (added by the initiative) said you can't build houses on the hillside.  But a residual chunk of them -- which predate the initiative, but were unamended by it -- say that you can build houses on the hillside.

So what to do?

The trial court says that the internal inconsistency means that the initiative is void, so it falls.  But the Court of Appeal disagrees.  There's not much precedent precisely on point, since these sorts of things (thankfully) don't happen all the time.  But in a creative and, I think, common sense opinion, Justice Tucher writes an opinion that remands and that directs the City to resolve the inconsistency.  One way or the other.

But how can you do that?  After all, the initiative was adopted by the people.  The municipality can't amend it.  So how can the City even attempt to do what the Court of Appeal has ordered it to do -- or at least do so short of simply capitulating to the initiative and repealing the inconsistent preexisting provisions of the general plan?

Good point.  But the Court of Appeal has an answer.  It says that, if it chooses, the City might elect to submit another proposed initiative to its residents that resolves the existing inconsistency.  And if the residents vote in favor, boom, problem resolved.

Which is true.  Mind you, that sort of gives the opponents of the initiative "two bites at the apple" in opposing the restriction on hillside development; first, when the initiative was initially proposed (and ultimately adopted), and second, when this new City-sponsored initiative comes out.  So that's a little unfair.  But, truthfully, that's the fault of the people who wrote the initiative.  Write a better one next time that doesn't forget to amend other inconsistent parts of the City's plan and you won't have such a problem.  One, essentially, of your own creation.

What the Court of Appeal leaves unstated, of course, is what happens if the City proposes such a "rectifying" initiative and it fails to pass.  But the answer is nonetheless fairly clear.  At that point, the City will pretty much be compelled to repeal the inconsistent provisions of the City's pre-initiative(s) plan.  Essentially letting the initiative prevail over the inconsistency.

Which makes sense.  The people voted.  Sure, the authors of the thing screwed up a bit.  But the intent of the thing was clear.  Unless the people decide something different (by adopting a new initiative), their obvious desire to prevent hillside development should prevail.  And the City should get rid of the inconsistent provisions of its existing Code.

A sensible and equitable result.  Regardless, IMHO, of whether you're for or against the residential development of hillsides.  There's a mode of rational legal analysis that's independent of results.  And it's properly and acutely displayed here.  I suspect the Court of Appeal would have done the exact same thing if the initiative would have inconsistently opened up (rather than closed) the hillside to residential development.

And entirely properly so.

State of California v. Little Sisters of the Poor (9th Cir. - Oct. 22, 2019)

No published opinions from either the Ninth Circuit or the California appellate courts (thus far) today.  So I'll go ahead and mention another case from yesterday.  This one.

You know it's a big ticket appeal when the caption page and list of counsel and amici spans the first thirteen (single-spaced) pages of the opinion.  And big ticket it is.  As the opening paragraph of the majority opinion accurately states the issue:

"The Affordable Care Act (ACA) and the regulations implementing it require group health plans to cover contraceptive care without cost sharing. Federal agencies issued final rules exempting employers with religious and moral objections from this requirement. The district court issued a preliminary injunction barring the enforcement of the rules in several states. We have jurisdiction under 28 U.S.C. § 1292, and we affirm."

Perhaps that's not a surprising result.  Particularly -- according to some -- from the "liberal" Ninth Circuit.

But, in that regard, let me point out that the author of the majority opinion is . . . Judge Wallace.  A jurist who's about as far from a "snowflake liberal" as you can get.

So a long opinion upholding part of the ACA and striking down an attempt to roll it back.  A high-profile opinion with a ton of interest.

People v. R.C. (Cal. Ct. App. - Oct. 22, 2019)

Justice Yegan begins this opinion by saying:

"An attempt to commit armed robbery is extremely dangerous. Appellant is lucky he was not shot to death by the store clerk who resisted his attempt to commit this offense. He would not have been the first attempted robbery culprit to meet this fate."

I'll add that such would have been a particularly tragic result because the appellant (1) is a 14-year old child; (2) who attempted to rob a 7-11 with a BB gun.  Fortunately, all that happened was that appellant was arrested and placed on probation.

It's also a neat little appeal because it's one that's basically based on a law review article:  Northrop & Rosen's piece entitled “Kids Will be Kids: Time for a ‘Reasonable Child’ Standard for the Proof of Objective Mens Rea Elements.” (69 Me. L.Rev. 109 (2017)).  Appellant's counsel takes that academic argument and turns it into a concrete legal one.

But the Court of Appeal says that you can lead an appellate tribunal to water, but you can't make it drink.  The law review article says:  “Based on the goals of the juvenile system, significant advances in adolescent development research and recent Supreme Court holdings on juvenile culpability, we argue here that the juvenile code should be amended to explicitly refer to a reasonable child standard for any mens rea element that relies on a reasonable person as the measure for criminal culpability.” The Court of Appeal responds:  "No, thanks."

So there you have it.

People v. Allen (Cal. Ct. App. - Oct. 22, 2019)

Leona Allen was convicted of welfare fraud in 1993.

Leona Allen was again convicted of welfare fraud in 1997.

Leona Allen was again convicted of welfare fraud in 2000.

Plus felony perjury in 2000.

Her son in serving life in prison (presumably for murder).

She wants her convictions expunged.

She's currently receiving 100% disability benefits from the State.

The trial court is not sympathetic to her plight.  The Court of Appeal gives her only minimal relief.

In re Marriage of Ahadzadah (Cal. Ct. App. - Oct. 15, 2019)

It's sometimes simultaneously easy and hard to resolve appeals by pro se litigants.  

It's hard because their briefs are occasionally rambling, unclear, and (in places) incoherent, so it's difficult to figure out what exactly they're saying.  And you want -- and are required -- to try your best to ascertain and then analyze the legal point they (obtusely and imperfectly) make.

On the other hand, it's easy for precisely the same reason.  Because when you can't understand a brief, even after trying, you can simply affirm.  As Justice Butz does here.  She resolves the present appeal in an opinion that basically consists of only a single double-spaced page, saying:

"Appellant filed an 11-page opening brief that is difficult to understand and a short supplemental opening brief that is similarly flawed. Unfamiliar with the principles of law governing the trial court’s ruling and the limited scope of appellate review, appellant does little more in her briefs than express frustration with the trial court and the judicial process. . . . Appellants must “present their cause systematically and so arranged that those upon whom the duty devolves of ascertaining the rule of law to apply may be advised . . . of the exact question under consideration, instead of being compelled to extricate it from the mass.” [Citation] Appellant’s opening brief, and supplemental opening brief, both fail on all these grounds. Under the circumstances, appellant has forfeited her claims of error. The judgment is affirmed."

Fair enough. 

I mention this opinion not because it establishes great law.  It definitely does not.  (Which is why it's unpublished.)  I mention it, in part, merely as an example of a type of case (and briefing) that's far from unusual in the Court of Appeal.

But, to the honest, the primary reason I mention this opinion is because I wanted to apologize.  Not for anything huge, but to apologize nonetheless.

But I'll begin with a long digression.  That's relevant in ways a reader may or may not immediately perceive, but which I'll explain at the end regardless.

My story begins way back in 1971.  That's the year still-popular President named Richard Nixon appointed a fresh-faced former Dean of Agriculture at Purdue University to be the new Secretary of Agriculture.  The name of that new cabinet member?  Earl Butz.

Now, the Secretary of Agriculture does not typically get much press.  But this guy did some pretty revolutionary stuff, and was also fairly controversial.  He massively favored corporate farms over smaller, traditional family farms.  And in 1972, the Soviet Union had a disastrous harvests, and we gave our Cold War enemy -- under Earl Butz's leadership -- massive grain sales.  Stuff like that made the news.  So you heard the guy's name on things like the evening news or on the radio, which was the media at the time, much more than you might otherwise think for someone in his position.

And then there was his personality.  Which was, let's say, unusual.  The guy could not keep his mouth shut.  And had zero filter.  I mean:  Zero.  To say that he was "inappropriate" at times is a massive understatement.  To take but one example:  at a World Food Conference in 1974, Earl Butz publicly mocked Pope Paul VI's opposition to birth control.  By -- and it still stuns me that he thought this would be just fine -- putting on a mock Italian accent and saying:  "He no playa da game, he no maka da rules."

Yeah.  That kind of guy.  In short, the kind of guy who makes the news.  A lot.

Now, in 1974, I'm an eight-year old kid living in Virginia, alongside my 7-year old brother, my 4-year old brother, and my 3-year old sister.  For a group like that -- or at least for my group of immature kids in particular -- the pantheon of humor in the universe consisted of jokes about farts and the like. So when we'd be driving with our parents in the car and a name like "Earl Butz" was read over the radio, you can imagine the resulting smirks and giggles and childlike laughter in the back seats over the mere mention of the name.  "Butz"  Hilarious!  And, to a degree, even slightly scandalous:  they are saying "Butts" on the radio.  Nothing could possibly be funnier.  Or so our pea-like brains thought at the time.

And I vividly remember those years, and Earl Butz's role in them, to this day. (Plus, his name was "Earl," and as a kid in Virginia, every "Earl" I knew at the time could accurately be characterized as a backward, Confederate-flag-waving, cousin-marrying redneck.)

And Earl Butz made the news a lot.  So lots of giggles for me and my siblings.  I remember even as a kid his ultimate downfall and when he was forced to resign.  Though, given my youth, I didn't at the time knew precisely what it was he said that ultimately forced him out.

(Parenthetically, neither did a lot of other people, including many adults.  The newspapers and radio reported that Butz had said something "patently offensive," and that it involved something about "the Blacks," but most of the media basically left it at that.  They didn't report what exactly he had said that made him resign, saying only that it was profane and racist.  Or they shorthanded it and filled in the actual words he said with other words that were close synonyms.  Several newspapers said they were not reporting the actual words he said but that readers could stop by the newspaper's main office if they wanted to read the actual quote.  In my current town, for example, the San Diego Evening Tribune did just that -- and over 3,000 readers in fact make the trek!

When you read what he actually said, you totally understand why he had to resign.  And, to be honest, it's stunning that anyone, anywhere, at any time would say (or even think) what he said; much less that this would come from someone in the Cabinet of the United States.  So skip to the next paragraph if you don't want to know the exact words of what he said.  Because here they come.  The utterly racist thing he said was . . . 'I'll tell you what the coloreds want.  It's three things: tight pussy, loose shoes, and a warm place to shit.'  Yeah.  Amazing.  And he said this right after he told a dirty joke about a dog having sex with a skunk.  Saying all this on a flight after the 1976 Republican Convention to a group that included Sonny Bono, Pat Boone, and John Dean.  Yeah, that was the mid-70s.  In a nutshell.)

Anyway, the point is, (1) the name "Earl Butz" was repeatedly in the news, and (2) it was a name that sparked much attention when it was uttered during my formative preteen years in Virginia.

Fast forward to 2019.  I've said some occasional nice things about Justice M. Kathleen Butz and her opinions in the past. And earlier this week, I discussed yet another one of her opinions.  But in the midst of that post, I accidentally called her "he".

Sorry about that.  Not a typo.  Just a total temporary brainfart.  One of my readers sent me an e-mail about it, and I (of course) went back and changed the post.  Totally my bad.

But it also made me wonder:  Why'd I make that mistake?  Sometimes things I post are just typos.  Sometimes they're things I just pound out with (in retrospect) insufficient thought.  But one this one, it was a mistake that was a weird one to make.  Because I know who Justice Butz is. And on those rare occasions when I'm talking about a particular justice who I don't know, I routinely look them up.

So why'd I make that mistake.

But then it came to me.  Earl Butz.  I honestly think that my subconscious was the one typing that sentence.  And that, in the inner recesses of my brain, when I was thinking about Justice Butz, the picture that subconsciously came to my mind was not the actual Justice Butz, but rather the Earl Butz of my formative youth.  The latter of whom was definitely a guy.

So the post reads the right way now.  And I'm sure it won't be the last one I ever make; or even the last one about gender.

But sorry about that.  Trust me:  I've thought about it a lot.  As you can probably tell.  And will try my best not to make the same mistake again.

Or at least not make it much.

Starview Property v. Lee (Cal. Ct. App. - Oct. 17, 2019)

It's a lawsuit between neighbors.  So you just know it's going to be overlitigated compared to the economic value of the dispute in question.

Perhaps even more so when, as here, the next door neighbors live in Brentwood.

Hence why Justice Bigelow begins the opinion by saying "In this acrimonious dispute between neighbors . . . ."  Yep.  I would expect nothing else.

The lawsuit also has a meaningful holding.  So it's not just important to the residents of Glenmere Way.

A long time ago, back in 1958, one neighbor gives an easement to another neighbor to use his driveway to access the property.  They agree that if the parties need to fill out any documents to confirm this easement or make it run with the land, everyone will sign them.

Fast forward to 2016.  Someone new buys one of the properties, and wants to remodel it.  He seeks permits from the City to do so.  The City says the owner's get the other neighbor's signature as well since the parking spaces for the property will be accessed via the easement.

But the other neighbor -- probably upset at the new owner's remodel -- decides to hold up the new owner.  He refuses to sign unless the new neighbor gives him indemnity, construction, releases, five thousand dollars, etc.  Nice.

The new neighbor is bummed/upset.  He ends up installing a car lift system on his new home, thus avoiding the need to get the neighbor's signature.

Then he sues the neighbor.

There's a variety of causes of action alleged in the original complaint.  And the thing gets litigated in the manner you'd think.  Massively aggressively.

Then, after over a year of litigation, likely somewhat close to trial, the plaintiff (and, particularly, their lawyer) decide to "clean things up" in the pleadings as well as to include new causes of action that they hadn't thought of (or decided to not yet file) when they filed their original complaint.

That's a somewhat common practice.  Sure, they probably should have filed the new causes of action in the first place.  But, for whatever reason, they didn't.  So they want to file them now.

But here's the problem:  Defendants use the amended complaint as an opportunity to file an anti-SLAPP motion.  Which they do 55 days after the amended complaint is filed.  Thus leading to all the advantages of such a motion:  hearing on the merits, potential fee exposure, automatic appeal and stay even if you lose the motion, etc.

Ultimately resulting in today's published opinion by the Court of Appeal.

The trial court denied the motion as untimely, reasoning that since the new causes of action all arose from the same set of facts alleged in the original complaint, the defendants should have filed the anti-SLAPP motion then (or within 60 days thereof), not a year-plus thereafter.

But the Court of Appeal reverses.

You can see the reasoning behind the trial court's decision.  Let's say you protest at a shopping mall, and the store owners sue you (reasonably or not) for trespass, which caused them damages since they had to shut down the store and lost $5000 in business.  You decide not too file an anti-SLAPP motion to get out of the suit.  Then, before trial, the store's lawyer realizes that plaintiff's conduct probably also counts as wrongful interference with prospective economic advantage, so plaintiff amends its complaint to include that new cause of action -- one that arises on the exact same set of facts that have already been asserted.  And, boom, a year in, suddenly there's an anti-SLAPP motion.  On its face, that seems silly.  It's the same lawsuit.  Just a new additional legal theory.  If you wanted to claim that your conduct was constitutionally protected, and hence that you're being SLAPPed, you should have done so when you were first sued.  A year later is too late.

Makes sense.

But so does the Court of Appeal's rejection of that theory.  Not surprisingly, the Court of Appeal relies a lot on precedent -- or at least upon its particular reading of that (not-perfectly-clear) set of authorities.  But it also relies on its own version of common sense.  Because let's say a plaintiff initially sues you for X set of facts, with Y cause of action, and that cause of action arises out of conduct protected by the anti-SLAPP statute, but you think:  "Well, shucks, I could file an anti-SLAPP motion, but you know what, Y cause of action really is true, so I'd lose."  So you don't file the motion.  But then, a year later, on the same set of facts, plaintiffs add absurd causes of action like Z and Q and EEE.  You can see why you'd now want to file your anti-SLAPP motion.  To get out of those new meritless causes of action.  New (meritless) causes of action that you couldn't have gotten out of at the beginning since, back then, they didn't even exist (i.e., weren't asserted).

Hence the Court of Appeal's rule.  When the amended complaint adds new causes of action, you can file an anti-SLAPP motion to strike those new causes of action (but not the old ones).  Even if a year has passed in the litigation.  And even if the new causes of action arise out of the exact same set of facts previously asserted in the original complaint.

So the neighbors get to go back to the trial court for Round II.  In which the trial court will now resolve the merits of the defendant's new anti-SLAPP motion.

Undoubtedly ultimately leading to Round III, when the losing party on that motion (which I suspect will be the defendants) appeals.  Likely followed thereafter by Round IV, in which the Court of Appeal decides the merits of the appeal and then remands the case for trial on the original causes of action plus whatever remains of the new causes of action  Finally resulting in a trial on the merits in Round V.

Sometime around 2023.

What a joy.