Friday, February 12, 2016

People v. McCarthy (Cal. Ct. App. - Feb. 11, 2016)

A statute says that you can impose a particular form of restitution "for felony violations of" Statute X.

Defendant is convicted of violating Statute Y.  Some, but not all, activities that would violate Statute Y would also violate Statute X.  Including what Defendant did.

But Defendant was not convicted of violating X.  He was only convicted of violating Y.  A different statute.

Does the restitution order permit the trial court to impose the particular form of restitution at issue on the Defendant convicted of violating Statute Y pursuant to a law that says that such restitution may be imposed "for felony violations" of Statute X?

The Court of Appeal says "Yes."

In Re Donovan L. (Cal. Ct. App. - Feb. 11, 2016)

"Shannon was married to Donovan at the time of DJ's conception in 2010 and birth in 2011. In 2010, Shannon had an affair with David and informed him she was pregnant. David did not seek involvement in Shannon's pregnancy or DJ's rearing until he saw Shannon and one-year-old DJ at a shopping center parking lot in July 2012. Seeing a resemblance, David took a paternity test on his own initiative and determined he was DJ's biological father. He told friends and family he was DJ's father and asked Shannon for visits with DJ. She facilitated a few visits between DJ and David, unbeknownst to Donovan.

Shannon and DJ stayed at David's apartment for two weeks in August 2012, when she and Donovan were having marital problems. During that time, Shannon called the police because David locked her out after they fought over child custody. When officers arrived, they found David and DJ 'passed out' on the bed with approximately 50 marijuana plants growing in the apartment. Following this incident, the Agency filed the 2012 dependency petition under Welfare and Institutions Code, section 300, subdivision (b)."

 It's always exciting in San Diego.

Wednesday, February 10, 2016

Catalina Island Yacht Club v. Superior Court (Cal. Ct. App. - Dec. 4, 2015)

Nothing from the Ninth Circuit or California Court of Appeal so far today.

So let's go back a tiny bit and give a cheer for Justice Aronson.

The first paragraph of this opinion makes crystal clear both what the case is about as well as what the relevant rule is:

"May a trial court find a waiver of the attorney-client privilege and work product doctrine when the objecting party submits an inadequate privilege log that fails to provide sufficient information to evaluate the merits of the objections? No."

But that's not all.  Justice Aronson not only tells us what the court can't do, but also tells us what it permissibly can.  Next paragraph:

"When confronted with a deficient privilege log that fails to provide the necessary information to rule on attorney-client and work product objections, a trial court may order the responding party to provide a further privilege log that includes the necessary information to rule on those objections, but may not order the privileges waived based on deficiencies in the privilege log because serving a deficient privilege log, or even failing to serve a privilege log, is not one of the three statutorily-authorized methods for waiving the attorney-client privilege. The court may impose monetary sanctions for providing a deficient privilege log, and it may impose evidence, issue, and even terminating sanctions if the responding party persists in its failure to provide the court with the information necessary to rule on the objections’ merits, but a forced waiver is not authorized by either the statutory scheme establishing the attorney-client privilege or the discovery statutes once the responding party preserves the objections by timely asserting them in response to an inspection demand."

That's exactly right.  It's also an awesome summary of the opinion that follows.  Which explains in exhaustive detail how and why the trial court erred.

And the rest of the opinion is equally clear and concise as well.  Page 9, for example:

"Accordingly, if a party responding to an inspection demand timely serves a response asserting an objection based on the attorney-client privilege or work product doctrine, the trial court lacks authority to order the objection waived even if the responding party fails to serve a privilege log, serves an untimely privilege log, or serves a privilege log that fails either to adequately identify the documents to which the objection purportedly applies or provide sufficient factual information for the propounding party to evaluate the objection. . . .

The propounding party’s remedy when it deems “[a]n objection in the response is without merit or too general” is to “move for an order compelling further response.” [Cite] If the response and any privilege log provide sufficient information to permit the court to determine whether the asserted privilege protects specific documents from disclosure, the court may rule on the merits of the objection by either sustaining it or overruling it as to each document. [Cite]

If the response and any privilege log fail to provide sufficient information to allow the trial court to rule on the merits, the court may order the responding party to provide a further response by serving a privilege log or, if one already has been served, a supplemental privilege log that adequately identifies each document the responding party claims is privileged and the factual basis for the privilege claim. [Cite] In ordering a further response, the court also may impose monetary sanctions on the responding party if that party lacked substantial justification for providing its deficient response or privilege log. [Cite]

If the responding party thereafter fails to adequately comply with the court’s order and provide the information necessary for the court to rule on the privilege objections, the propounding party may bring another motion seeking a further response or a motion for sanctions. At that stage, the sanctions available include evidence, issue, and even terminating sanctions, in addition to further monetary sanctions. [Cite]  But the court may not impose a waiver of the attorney-client privilege or work product doctrine as a sanction for failing to provide an adequate response to an inspection demand or an adequate privilege log."

I can't imagine an opinion making the law any more clear.  On a topic that many, many litigators care (or at least should care) about, and confront daily.


Tuesday, February 09, 2016

Daire v. Lattimore (9th Cir. - Feb. 9, 2016)

Some en banc opinions are hard.  Some en banc opinions are easy.

Today's opinion is an example of the latter.

The panel felt itself bound by circuit precedent.  The en banc court, by contrast, was under no such constraint.  So, based on intervening precedent by the Supreme Court, it overruled that prior circuit authority.

The en banc court was unanimous.  The opinion was per curiam.  The en banc court didn't even need oral argument.  And getting the opinion out took less than a month.

Everything else goes back to the original panel.


Monday, February 08, 2016

In Re Village of Lakeridge (9th Cir. - Feb. 8, 2016)

I think Judge Clifton is right.

It's not that Judge Randy Smith doesn't have a point.  It's a bankruptcy case, and the central issue is a factual one.  So we give lots of deference to the district court.  Which is in substantial part why Judge Smith writes the majority opinion and affirms.  Even though one might get a sense from reading that opinion that Judge Smith isn't so confident that the district court's factual call was necessarily the right one on the merits.

So Judge Smith starts out with a huge lead.  Standard of review.

But Judge Clifton, I think, gets it right.  Yeah, there's a lot of deference there.  But it's not infinite.

I, too, have a definite and firm conviction -- like Judge Clifton -- that the district court's factual finding was wrong.  And the more I think about it, the more confident I am in that regard.

To get a glimpse into the machinations of the underlying transaction, three paragraphs from Judge Clifton's dissent will suffice:

T"he facts make it clear that this transaction was negotiated at less than arm’s length. Rabkin paid $5,000 to MBP (the sole member of the debtor, Lakeridge), for an unsecured claim against Lakeridge nominally worth $2.76 million. MBP did not offer the interest to anyone else. The purchase was not solicited by Rabkin. It was proposed to Rabkin by Kathie Bartlett, a member of the MBP board. There was no evidence of any negotiation over price — Rabkin didn’t offer less, and MBP didn’t ask for more. Rabkin knew little if anything about Lakeridge (or, for that matter, MBP) before he bought the claim, nor did he conduct any investigation to ascertain the current value of that unsecured claim. Even after he purchased the claim, he did not bother to find out more about what it might be worth. Prior to his deposition Rabkin did not even know what the proposed plan of reorganization would pay him for the claim. After he learned that the payment under the plan would be $30,000, he was offered as much as $60,000 for his interest, but he declined that offer.

The motives of MBP and Bartlett are clear and not denied. MBP is the sole member of Lakeridge. The Lakeridge reorganization plan cannot be approved unless there is a class of creditors willing to vote to approve it. Without the sale of this claim to Rabkin and his anticipated vote to approve the plan, that plan is dead in the water, Lakeridge will be liquidated, and there will be no hope for MBP to obtain anything for either the unsecured claim or, more importantly, its ownership of Lakeridge. It may have wanted to recover something from its unsecured claim, but it did not look for the best possible price because its Lakeridge ownership was far more important. MBP was primarily motivated to place the unsecured claim in the hands of a friendly creditor who could be counted on to vote in favor of the reorganization plan, opening the door to the possibility of obtaining approval of the proposed plan of reorganization.

Rabkin’s motivation is a bit murkier, but it is clear that the transaction cannot be understood as a primarily economic proposition on his part. There was no evidence that he had a habit of making blind bets, say by helping out Nigerian princes or buying the Brooklyn Bridge. There is an alternative explanation that makes a lot more sense. As the majority opinion acknowledges, at 6, Rabkin had a “close business and personal relationship” with Bartlett, the person who proposed this transaction to him. I don’t have to know the precise details of the relationship between Rabkin and Bartlett to conclude that it offers the only logical explanation for Rabkin’s actions here. He did a favor for a friend, and if it made some money for himself, so much the better."

Sounds right to me.  X owns a claim benefits if that claim is voted it in his favor, but X can't vote it himself since he's a bankruptcy insider.  So X sells the claim to a friend for $5,000 -- a friend who knows virtually nothing about the deal, votes it in X's favor, and won't sell the claim for ten times what he paid for it (and double what he could possibly hope to achieve in the bankruptcy).  Yes, the lower court said that transaction seemed fine.  But it's not.  It was a sham designed to make the vote happen in X's favor.  I'm convinced of that.  Sufficiently convinced to reverse.  Even on a factual finding.

Judge Smith says that a contrary finding would be a "logical" interpretation of the facts.  That may well be true.  It might be a "logical" conclusion that the investor was just taking a flyer on a $5,000 investment hoping to make money.  That's nothing internally inconsistent -- i.e., illogical -- with such a conclusion.

It's just not a persuasive view -- however logical -- of the facts.  It's way less likely, in my view, than the alternative explanation.  Indeed, on the facts of this case, such an interpretation of the facts may border on the affirmatively implausible.

So I think Judge Clifton has the better of the argument here.

Friday, February 05, 2016

Stuard v. Stuard (Cal. Ct. App. - Jan. 5, 2016)

I'm looking at the caption of the case.  "Stuard v. Stuard".  Divorce case, I assume.

Except it's Jeffrey Stuard v. Matthew Stuard.  No biggie.  Gay divorce case.


Not a family law case at all, then.  Brothers fighting over a will.  Something like that.

Nope.  It's a family law case.  Child custody, even.

It's a case where the grandparents are seeking visitation of their grandchild over the objection of the parents of the child.

Which you see sometimes.

But this case is different.  Because the usual case involves unfit parents.  Whereas here, everyone agrees that the parents are totally fit.  Raising their kid just fine.  Simply don't want the paternal grandparents in the picture.

Okay, then.

My first thought is that I'm fine with the concept.  Grandparents have a connection.  We're talking about the best interests of the child.

Then I read the facts of the case.  The first eight pages or so.  And wow.

I know the Court of Appeal's opinion (rightly) recites the facts in the light most favorable to the party that prevailed below -- in this case, the grandparents.  But as I read the facts, I totally get why the trial court wants the grandparents to be around.  They were totally involved in raising this little kid.  They lived with the parents and were, essentially, the primary caregiver for the kid.  And the dispute about visitation basically arose when the father -- allegedly -- started on ADHD drugs, with a resulting change in personality, which eventually led to the grandparents kicking the father out of the house.  An event that arose the father's ire and (allegedly) led to his decision to tell the grandparents that they'd never see their "golden granddaughter" again.

Plus, the child wants to see her grandparents, and wonders why she can't.

Geeze.  That makes me even more desirous of letting the grandparents visit.  I mean, seriously.  Let the grandparents and grandchild have a relationship, for goodness sake.

So as I'm reading the opinion, I'm on board for the trial court granting visitation.  And the Court of Appeal tells me early on that they're affirming, so I'm cool with that.

But then I get to the actual remedy section.  I was thinking that the grandparents would get like two four-hour visits every month or so.  But here's what they actually get:

"Jeff and Cindy [the grandparents] may have Riley [the grandchild] once a week during a weekday overnight visit and one overnight weekend visit per month. Jeff and Cindy may take Riley on a seven-day vacation each summer and have an overnight visit with her around Thanksgiving and Christmas."

Whoa!!  Overnight visits?!  And take someone else's child on a seven-day vacation every year?!


I'm not entirely sure why, but for me, that ups the ante here.  Substantially.  To reiterate:  These are not unfit parents.  At all.  The parents -- both of them -- simply have decided that they don't want the grandparents in their lives.  Now, I'm okay with saying that's not an absolute, and that, on the state of the evidence here, it'd be in the best interests of the kid -- and permissible -- to let the grandparents see and have reasonable visitation with her.

But taking a kid out of a fit home of her parents and letting someone else have them for overnight visits?  And taking the kid away for a full week merely because we think that that'll be "good for them"?

Wow.  I don't know.  Emotionally, that just seems different to me.  I imagine the state taking away one of my own children for a full week because they allegedly know better than I do what's good for them and say to myself:  "Hell no."  A full week?!  Wow.

Can I give a rational explanation why visitation for four hours on an afternoon seems different to me than overnight visits and even more visit from a full week vacation?  No.  Not really.  I totally get the argument that this is merely a quantitative, rather than qualitative, difference.  And concede that I can't readily define the line between how much it's "okay" to take a kid away from fit parents and when it suddenly becomes not okay.

But there's nonetheless still a huge part of me that says there's a line.  I may not be able to draw a definite line between a dude with a few straggly hairs and a guy with a full beard, either.  But there's nonetheless a difference.  One's got a few hairs, and the other has a beard.  Even though I can't draw a definite line their either.

The Court of Appeal here doesn't seem to have been asked to resolve when taking away a child from his fit parents is "too much"; instead, the parents' argument was a more categorical one, and focused on the claim that since they were fit, their kid couldn't have been taken away from them at all.  As I said before, with respect to that issue, I'm somewhat sympathetic to the Court of Appeal's holding.

But there's nonetheless a line here.  At least emotionally.  At least for me.  And maybe as a matter of (admittedly imprecise) law.

And I wonder if that line wasn't, in fact, crossed here.

So in an appropriate case, I wonder whether the Court of Appeal might consider this issue.  As well as think deeply about it.

'Cause I'm not down with the state taking away my kid for a week-long vacation for his own good.

Even if it's objectively "right".

Thursday, February 04, 2016

Smith v. Schiro (9th Cir. - Feb. 4, 2016)

An test that Robert Smith took when he was 15 years old (in 1964) indicated that he had an I.Q. of 62.  One that he took later that year indicated an I.Q. of 71.

Smith committed a murder in 1980.

Tests taken in 2005 and 2007 indicated in I.Q. of 89, 91, and 93.

What Mr. Smith's I.Q. was at the time of the murder is the difference between life and death.

Judge Reinhardt authors the majority opinion.  Judge Callahan dissents.  So you can guess where the Ninth Circuit comes out today.

You thought the bar exam was stressful.  Imagine a test that decides whether you live or die.

Wednesday, February 03, 2016

People v. Valenzuela (Cal. Ct. App. - Feb. 3, 2016)

Defendant carjacks someone, pushing the victim down while her six-year old child stood by crying.  Defendant then speeds off in the vehicle, almost running over a bystander in the process.

When the police start a chase, defendant then tries them by crossing into oncoming traffic to pass cars, skidding into a field, driving back onto a residential streets at up to 65 miles per hour, and running through several stop signs and through an intersection with crossing guards as children walking to school scrambled to get out of her way.  Defendant's ultimately caught when the car crashes head on into a telephone pole and defendant is tackled by police.

Oh, yeah.  Defendant has prior convictions for car theft, receiving stolen property, and -- yes -- reckless evasion.

She also has methamphetamine in her pocket when she's arrested.

Defendant receives a total sentence of less than seven years in prison.

I'd have given her a fair piece more.

I've never been a fan of the sharp distinction between attempt versus completed crimes, or crimes that involve reckless disregard and those in which it just-so-happens that there's injury.  Ms. Valenzuela here evaded police, drove 65 miles per hour on residential streets running through stop signs, and had kids and crossing guards scrambling out of her way to avoid being hit.  Had she hit one of 'em, she'd be looking at something like 25 to life.  As opposed to less than seven.

All based on the fortuity on whether or not a particular child happened to move six inches left or right at the time.

It seems to me that we should care a lot about deterrence.  Especially in these types of cases, in which the defendant is making a decision about whether the benefits of trying to evade the police (escape) are worth the downsides of doing so (enhanced penalties).  To deter, it shouldn't matter much whether a person (or other vehicle) happens to get hit.  Every single time, you create the risk.  So the penalty -- the thing you have to consider when you're deciding whether to flee -- should be sufficiently large to deter the creation of that risk.  Regardless of whether, in retrospect, someone actually ended up getting hit.

Ditto for culpability.  You're equally culpable for evading police regardless of whether the kid that you (almost) run over happens to see you sufficiently early and is fast enough to get out of the way.

The only thing that might justify the sharp distinction between punishment for those who create a risk and those whose risk happens to end up in injury is retribution.  And that's a pretty weak basis, in my view, upon which to foist criminal liability.  Especially given the far more compelling competing interest in deterrence.

So Ms. Valenzuela gets off easy, in my view.  Way easy.

Tuesday, February 02, 2016

Villavicencio-Rojas v. Lynch (9th Cir. - Feb. 2, 2016)

Judge Berzon concurs and says:  "I note that, as a practical matter, my understanding of the statute and the majority’s will not diverge very often. The occasions on which a defendant commits a controlled substance offense and then is arrested for another such offense before the judicial disposition on the first one will not be frequent. But they will occur occasionally."

Given the nature of drug abuse, I'm confident that the number of times this will transpire will not fall anywhere near the "rare" category.  But the word "occasionally" covers an awful lot of ground.  So I cannot disagree with what Judge Berzon says.

Monday, February 01, 2016

Unilab Corp. v. Angeles-IPA (Cal. Ct. App. - Feb. 1, 2016)

I agree with the plaintiff that it should be paid.  Doctors put specimens in those ubiquitous "Unilab" boxes and asked Unilab to give 'em results.  Unilab did so.  Unilab should be paid.  Whether that's a contract, or implied contract, or quantum meruit, or whatever, Unilab should be paid.

But I also agree with the Court of Appeal.  Unilab shouldn't be paid by the IPA -- the independent physician's association.  For the reasons expressed in Justice Epstein's opinion.

But I'd also reiterate that Unilab should be paid.  If Unilab sued the doctors themselves, in my view, I would likely find for Unilab.  The doctors erroneously placed the specimens in the Unilab box.  And Unilab had not reason to know this was by accident.  To the tune of six figures in laboratory results.

That's a pretty good lawsuit, in my opinion.

But you've got to sue the actual doctors who committed the error, not the IPA.

People v. Safety Nt'l Cas. Corp. (Cal. Supreme Ct. - Feb. 1, 2016)

I freely admit that I don't know as much about bail proceedings as perhaps I should.  But I nonetheless thought that every single word of Justice Chin's opinion was spot on.

Every.  Single.  Word.

So too, apparently, did the rest of the California Supreme Court.  The opinion was unanimous.

Defendant had to be at his pretrial hearing.  He knew about it.  He didn't show up.  The entity that bailed him out accordingly lost the bail.  (At least after they subsequently couldn't find him.)

Sounds right to me.

Friday, January 29, 2016

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.


Wednesday, January 27, 2016

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.

Tuesday, January 26, 2016

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.

Monday, January 25, 2016

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.

Friday, January 22, 2016

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.


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.

Thursday, January 21, 2016

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.

Wednesday, January 20, 2016

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.

Tuesday, January 19, 2016

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?

Monday, January 18, 2016

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."


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."


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.

Friday, January 15, 2016

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.

Thursday, January 14, 2016

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.


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.

Wednesday, January 13, 2016

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.

Tuesday, January 12, 2016

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.

Monday, January 11, 2016

In Re Marriage of Peterson (Cal. Ct. App. - Jan. 11, 2016)

John Peterson is an attorney in Los Angeles.  Annette Peterson is an attorney in Los Angeles.  They are married for a relatively long time -- 16 years -- and then they separate.  So it's time to divide their assets.  Including their retirement assets.

John's in private practice, so his retirement benefits entail social security payments, which are worth around $220,000.  Annette's not in private practice -- instead, she's a district attorney -- so she doesn't get social security benefits, but instead gets L.A. County retirement benefits, which are also worth around $220,000.

We're splitting things up.  We're a community property state, after all.  So if you were looking at this rationally, you'd let John have his benefits and let Annette have hers.  Or give Annette half of John's benefits and John half of Annette's.  Essentially the same thing.  Since all this stuff was earned during the marriage, you'd think you'd split 'em up.

But that's not what we do.  The Court of Appeal holds that John gets all of his retirement benefits, and half of Annette's as well.  She, by contrast, gets only half of hers, and none of John's.

That's an absurd result.  Obviously.  But the Court of Appeal holds that's the result that's legally compelled, since federal law prevents states from splitting up social security benefits -- so John's benefits are all his -- and California law makes everything community property, so Annette's benefits get split.

Once you know what the law is, you can see why the Court of Appeal comes out, even if perhaps reluctantly, the way it does.

But does it really have to be this way?

I understand that we can't do anything about federal law, which is what it is.  But the Court of Appeal may perhaps be overly willing to view California law as inherently inelastic.  Sure, the usual rule is that assets (including retirement benefits) obtained during the marriage are community property.  But we have this thing called common law.  Through which we've created tons of exceptions to this rule.  I'm not sure it's categorically impermissible to create one more, particularly given the indisputable inequity involved in situations precisely like this one -- where one spouse would otherwise get 150% of the community's mutually earned retirement benefits.

Tons of other community property states, as the Court of Appeal notes, have addressed this identical issue and have come up with ways to make the distribution fair.  Indeed, that's the majority rule, with most such states creating an equitable remedy.  In the present case, Annette comes up with a plethora of ways to make it fair.  But the Court of Appeal has none of it.  It's not going to create a common law rule to make things fair, and instead punts the issue to the Legislature.  Good luck with that.

There are lots of different ways to look at the common law.  Some view it incredibly narrowly, and only think that it's justified in very limited settings; e.g., where the Legislature has completely failed to act in an entire area.  Some view it more flexibly, and believe that it's a good system through which inequitable and/or unexpected consequences of legislative acts can be legitimately rectified.

This opinion is a good one that exemplifies the upsides and downsides of each such approach.

As for the law, know the rule.  If you're in private practice, and getting divorced, you're in very good shape.  If you work for the government, by contrast, you're going to get hosed.

At least in California.  Unlike the vast majority of other states.

Friday, January 08, 2016

People v. Lee (Cal. Ct. App. - Nov. 13, 2015)

There are a couple of published opinions today, but several involved bankruptcy disputes of interest largely only to those in that field, so I thought I'd go back some weeks and quickly mention a "man bites dog" case as we head into the weekend.

It's a criminal assault case between a homeless person and someone who lives in Malibu.  The one person beat the other senseless with a tire iron.

But it may not be what you think.  Since it's the person from Malibu who committed the crime.

Life was weird in 2015, eh?

Thursday, January 07, 2016

Retail Digital Network LLC v. Appelsmith (9th Cir. - Jan. 7, 2015)

It's January 7.  And today we see the first published opinion by the Ninth Circuit in the new year.

Welcome to 2016, Ninth.  Glad to see ya.

It's also an opinion worth considering at some length.  Judge Callahan's opinion describes the underlying statute accurately and succinctly.  As well as with some flair.  Starting the opinion with:

"California Business and Professions Code Section 25503(f)–(h) forbids manufacturers and wholesalers of alcoholic beverages from giving anything of value to retailers for advertising their alcoholic products. Thus, for example, a liquor store owner in California can hang a Captain Morgan Rum sign in his store’s window, but the Captain can’t pay him, directly or through an agent, for doing so."

I especially like "the Captain" part.  Nothing like free advertising in a judicial opinion.  Plus, it proves that the legal intelligencia views, and remembers, the relevant advertising as well as everyone else.

Why, by the way, does California -- alongside a plethora of other states -- have these rules?  It's actually a fairly interesting story.  And, unlike what you might first think, it's a story about monopolies:

Section 25503 is part of a scheme of “tied-house” statutes passed by the California legislature in the wake of Prohibition. The name “tied-house” derives from a perceived evil that the scheme was designed to defeat: the return of saloons and other retail alcoholic beverage outlets controlled by alcoholic beverage manufacturers and wholesalers that had been prevalent during the early 1900s. Manufacturers and wholesalers “tied” retailers to them by providing them with low-interest loans, reduced rents, and free equipment, employing their staff, and other means. Lawmakers in Congress, California, and other states blamed “the industry structure that tied-house arrangements created . . . . for producing monopolies and exclusive dealing arrangements, for causing a vast growth in the number of saloons and bars, for fostering commercial bribery, and for generating other ‘serious social and political evils,’ including political corruption, irresponsible ownership of retail outlets, and intemperance.” To prevent vertical and horizontal integration of the alcoholic beverage industry and to promote temperance, the California legislature prohibited manufacturers and wholesalers from owning retailers or making gifts, paying rebates, or otherwise buying the favor of retailers and their employees. Section 25503(f)–(h), the provision challenged on First Amendment grounds here, was designed to “prevent manufacturers and wholesalers from circumventing these other tied-house restrictions by claiming that the illegal payments they made to retailers were for ‘advertising.’”

Neat, eh?

So what's the problem?

Well, the plaintiff here says that the statute violates its First Amendment rights.  It's willing to pay.  The store is willing to take the money and advertise.  First Amendment, it says.

You can analyze that argument by itself.  But you can also analyze it pursuant to precedent.  And here in the Ninth Circuit, the latter method may be particularly insightful.  Since this precise issue, about this very same statute, making the identical argument, had been raised by a different party in an earlier case. And here's how Judge Callahan's opinion (accurately) describes that precedent:  "Twenty-nine years ago, in Actmedia, Inc. v. Stroh, 830 F.2d 957 (9th Cir. 1986), we found this law to be consistent with the First Amendment."

Well, okay, then.  Case over, right?

Not so fast.

The Supreme Court has made some intervening decisions about commercial speech since then.  This is an area that's changed a bit as the composition of the Court has changed.

Still, Judge Callahan and the rest of the panel are generally required to follow circuit precedent.  As Judge Callahan says, "[a]s a three-judge panel, we are bound by Actmedia unless it is “clearly irreconcilable” with intervening higher authority."

Judge Callahan holds, however, that there's precisely such “clearly irreconcilable” intervening authority: Sorrell v. IMS Health, Inc., 131 S. Ct. 2653 (2011).  So the panel's got to look at that opinion at some length, to make sure it's "clearly irreconcilable."  And look it does.

When I first read the opinion, which discusses the relevant precedent at length, I thought:  "Okay, I guess the law is changing a little bit here."  But the more I looked, the more I wondered about that.  Especially whether it's at all plausible to claim that the intervening opinion is "clearly irreconcilable" with the earlier Ninth Circuit case.

You can read the entire opinion if you'd like.  Which discusses the intervening authority at some length.

But I can also shorthand it for you.  Entirely accurately.  And you'll see why my views on this issue started to clarify.

(1) The Supreme Court previously analyzed commercial speech restrictions pursuant to what's called the four-part test in Central Hudson, named after the 1980 Supreme Court case of the same name.

(2)  In the prior circuit precedent, Actmedia, in 1986, the Ninth Circuit applied the four-part Central Hudson test to California's statute and found that the statute didn't violate the First Amendment.

(3)  In 2011, in Sorrell, the Supreme Court decided a commercial speech case in which it expressly applied to the statute the . . . four-part Central Hudson test.

Ergo, today, Judge Callahan's opinion holds that the prior circuit precedent, which applied the four-part Central Hudson test, is "clearly inconsistent" with the Supreme Court's intervening precedent in Sorrell, which applied the four-part Central Hudson test, and hence the district court's opinion -- which applied the four-part Central Hudson test -- must be reversed, and the prior Ninth Circuit precedent, which applied the four-part Central Hudson test, must be overruled.


Let's take a closer look at each of these steps.

I'm sure you believe me on (1) -- that Central Hudson applied the four-part Central Hudson test.

Similarly, (2)'s beyond dispute, and Judge Callahan's opinion says so itself:  "On appeal [in Actmedia], we applied the test for laws that burden commercial speech set forth in Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980). Under that test, courts examine four questions: (1) whether the speech concerns lawful activity and is not misleading; (2) whether the asserted governmental interest justifying the regulation is substantial; (3) whether the regulation directly advances the governmental interest asserted; and (4) whether the regulation is not more extensive than is necessary to serve that interest. Id. at 566."

So what about (3)?

Everyone agrees that the Court in Sorrell applied the four-part Central Hudson test.  Judge Callahan's opinion even says so, and every one who's ever written anything about Sorrell agrees on this point.

So why's it different?  Well, the words that the Sorrell used in describing the proper test -- right before it expressly applied the existing four-part Central Hudson test to invalidate the statute in that case -- were arguably a bit different that the words used in Central Hudson.  For example, Judge Callahan describes the third prong of the Central Hudson test as "whether the regulation directly advances the governmental interest asserted," whereas she describes that prong as described in Sorrell as whether "the harms [the government] recites are real and that its restriction will in fact alleviate them to a material degree."  One says there needs to be a "government interest" that's "directly advanced," and the other says there need to be "real" harms that are "in fact" alleviated.  I'll let you decide whether those different words mean anything different at all, much less are "clearly irreconcilable."  Ditto for the fourth prong, which Judge Callahan describes as "whether the regulation is not more extensive than is necessary to serve that interest" in Central Hudson versus whether "the challenged law is drawn to achieve [the government’s substantial] interest" and a "fit between the legislature’s ends and the means chosen to accomplish those ends" as described in Sorrell.

Clearly irreconcilable?

It's true that Sorrell said that commercial speech restrictions are given "heightened scrutiny".  But as Judge Callahan points out, "[w]hile the Court found that heightened judicial scrutiny of the law was required, the Court did not actually apply heightened scrutiny." And it's unclear whether the four-part Central Hudson test -- which demands in its third and fourth prongs the direct advancement of a government interest and regulations no more extensive than are necessary to serve that interest -- isn't precisely the type of heightened scrutiny (e.g., way above rational basis) that's required.  Especially since everyone agrees, and that includes Judge Callahan, that we're not talking about strict scrutiny here:  that's not the test.

So is applying the Central Hudson test inconsistent with Sorrell (which, I'll reiterate, did precisely that to the actual case before it)?  Here's how Judge Callahan describes what the Second Circuits say about the issue of Sorrell versus Central Hudson:  "The Second Circuit also has interpreted Sorrell to require heightened scrutiny of content- or speaker-based restrictions on commercial speech, which may be applied using the framework of the Central Hudson test. United States v. Caronia, 703 F.3d 149, 164 (2d Cir. 2012)."  So that seems to mean that the "heightened scrutiny" requirement "may be applied using the framework of the Central Hudson test," no?

Clearly irreconcilable?

Put entirely to one side the fact that, since the Court in Sorrell actually applied the Central Hudson test, and not any other test, anything else is might have said is undisputably dicta.  Does that opinion really permit the three-judge panel here to overrule prior circuit precedent?

Look, there's no doubt that the Court nowadays is more conservative, as well as more protective -- at least in fact, if not in doctrine -- of commercial speech.  And I also think it's plausible to argue that if the Court had to actually decide whether to overrule the Central Hudson four-part test as the applicable standard, there's a decent chance it might do so.

But although the language of Sorrell is different than the language in Central Hudson, I think it's a fair piece of a stretch to say that the two cases are "clearly irreconcilable."  Especially since no one contends that the former actually overruled the latter, and since the former actually applied the latter's test as well.

This much, however, we can say for sure:  If the one opinion that's been published so far by the Ninth Circuit is at all indicative of what's upcoming, 2016 will be a fascinating year.

Wednesday, January 06, 2016

In Re B.H. (Cal. Ct. App. - Jan. 16, 2016)

"The child was detained on January 10, 2015, after Mother was arrested for credit card fraud and child endangerment, and her home was found in a deplorable and unsafe condition with methamphetamine scales in the living room and kitchen. Father was incarcerated at the time and had a lengthy criminal history for serious and violent acts. A deputy reported that Father was a drug dealer, while the paternal grandmother added that he was a drug user. Mother admitted to having a drug problem and smoking methamphetamine for the last two years. She also admitted to having previously quit smoking crack cocaine mixed with marijuana in 2005."

Every generation thinks that the generation that came after it is in worse shape.  But cases like this one make we wonder whether the next generation isn't in fact in worse shape.

Or at least a segment of it.

Tuesday, January 05, 2016

In Re A.L. (Cal. Ct. App. - Dec. 31, 2015)

Are you kidding me?!

"In November 2013, Amber arrived at a probation drug test appointment with her two-year-old daughter, A.R., and told her probation officer that she had used heroin just hours before. Amber told the officer A.R.'s father, Manuel R., was waiting in the car and could care for the child. When officers went to the car, Manuel also appeared to be under the influence of drugs. Officers searched Manuel and found a hypodermic needle in his pocket. Officers also searched the car and found marijuana and another needle in Amber's purse."

In San Diego, no less.

Monday, January 04, 2016

Howard Jarvis Taxpayers Ass'n v. Padilla (Cal. Supreme Ct. - Jan. 4, 2016)

The California Supreme Court begins 2016 with a surprise.  At least to me.

In 2014, the California Legislature put Proposition 49 on the ballot, which sought an opinion from the voters as to whether Congress should propose (and the Legislature ratify) an amendment to the U.S. Constitution that would overturn Citizens United.

Fair enough.  But in August 2014, the California Supreme Court took Prop. 49 off the ballot.  Didn't decide the merits.  But pending resolution, the thing went off.

Most people -- including myself -- thought that gave a pretty good indication of where the California Supreme Court was going to eventually go once it issued an opinion.

But today, the California Supreme Court decides, over a single dissent, that Proposition 49 would have been perfectly fine.

There's admittedly a split of opinion even amongst those justices who are on board for the result.  But the outcome is nonetheless not much in doubt.

Justice Werdegar authors the first opinion.  An opinion that gets five votes:  hers, as well as the Chief Justice's and Justice Corrigan, Cuellar, and Kruger.

That's five.  Which is pretty much all you need to know.

It takes 46 pages for Justice Werdegar to spell out all the reasons why.  But spell them out she does.  The majority says that it's perfectly fine for the Legislature to request an advisory opinion as to what the Legislature should do.  Including but not limited to Prop. 49.

Chief Justice Cantil-Sakayue writes a brief concurrence as well.  Her vote wasn't a surprise; after all, she dissented from the stay on Prop. 49 back in 2014.  But she spells out additional thoughts as well.

For 39 pages.  Which makes one think that maybe her opinion might have been originally intended to be a (proposed) majority opinion.  Or at least that she feels like letting everyone know her complete views on the matter.

Then there's Justice Corrigan.  Who writes a separate concurrence that gives one substantial reason to think she may well have changed her mind.  And/or changed her vote.  Her concurrence begins:\

 "With the benefit of time to fully consider the issues presented by this writ petition, which go to the fundamental structure of our state government, I agree with and join the majority opinion. Proposition 49 is a valid exercise of the Legislature’s investigatory authority under the California Constitution. I also agree with the Chief Justice that the Legislature’s power to submit advisory measures to the electorate is not limited to its role in the process of amending the federal Constitution. For the reasons stated by the Chief Justice, advisory measures that are reasonably related to any proper use of legislative power are permissible."

So she's reluctant, but in the end, what Justice Werdegar and Chief Justice Cantil-Sakayue say seems right to her.

At this point, anyway.

Then there's Justice Liu.  He didn't join the majority opinion.  But agrees with the result.  He writes separately to let you know that he thinks the majority opinion is too broad.  He's on board for Prop. 49 since it concerns the People's potential support for a federal constitutional amendment.  That's a proper subject for an advisory opinion, he says.  But he wouldn't be on board for similar advisory measures about other potential matters.  That's too much for him.  And he explains why.  At length.

Which leaves only Justice Chin.  Who dissents.

So, in the end, you've got a majority of the California Supreme Court voting to put a hold -- and a dispositive one -- on what would have otherwise been a matter submitted to the voters in 2014.  But, less than two years later, you've got virtually every single justice agreeing that the proposition at issue was perfectly fine.

Not something you see very often.  Or that, in my view, was entirely predictable.

Admittedly, you've got a couple new members of the Court, both of whom join the majority opinion.  Sometimes new blood introduces new thoughts.  And it always introduces new votes.  As here.

Still, what transpired here is a titanic shift.  If you'd have asked me in 2014 if the ultimate vote on Prop. 49 would have been 6-1 to uphold the thing, I'd save said "No way.  No way in hell."

Shows you what I know.

Wednesday, December 30, 2015

People v. Goode (Cal. Ct. App. - Dec. 30, 2015)

The law of burglary is weird.  Super weird.  It doesn't match what you thought it was at all.

Mark Goode doesn't enter a home.  He tries.  He opens a metal storm door, but can't get in.  A few seconds later, he jiggles a nearby window.  Again, he can't get in.

But that's still burglary.  Because a "part" of his body got into the space between the storm door and the front door.  That's the law.

Weird enough.

But the trial court sentenced the guy based on two burglaries.  One burglary being trying the front door, the other being trying the window (of the same residence) a few seconds later.  Hence adds eight additional months in prison to the guy's sentence.

That's too much even for the Court of Appeal.  One burglary.  The attempts to open the door and window weren't a divisible act.  So still a burglary, even though he guy never actually entered  But only one.

Tuesday, December 29, 2015

McKinney v. Ryan (9th Cir. - Dec. 29, 2015)

Think that the en banc draw doesn't matter?  Or that having the chief judge automatically on the en banc panel doesn't make a difference.

Think again.  Here, it may well be the difference between life and death.

The vote is 6-5 to overrule circuit precedent and overturn the death sentence here.  Judge Fletcher writes the majority opinion.  Joined by Chief Judge Thomas and Judges Wardlaw, Berzon, Christen, and Nguyen.

That makes six.  Judges Kozinski, Gould, Tallman, Callahan, and Bea dissent.  That's five.  One less.

One different person on the draw might have changed the result.

Indeed, if the (archaic) rule about the chief judge automatically being on the en banc court didn't exist, by my count, there'd be around a one-in-three chance that Mr. McKinney would remain sentenced to death.

It's a lottery.  With rules that matter.  And sometimes make a dispositive difference.

Oyama v. University of Hawaii (9th Cir. - Dec. 29, 2015)

You'd think that if you were in the process of trying to get a teaching job in the public schools, you could keep to yourself -- or at least not express to the people reviewing your suitability for the job - that you think that the age of consent should be zero, that online child predation should be legal, that most students with disabilities are "faking" it, that there's no substantial benefit to mainstreaming disabled students, that you think about suicide "every day," etc.

Admittedly, it might well take a 46-page, single-spaced opinion to decide that these comments of yours aren't sufficiently protected by the First Amendment to preclude the government from denying you a teaching credential on the basis of these comments.

But, seriously.  Just learn to keep your mouth shut.  Sometimes discretion is an important part of getting what you want.