Monday, November 23, 2015

Ramirez v. County of San Bernardino (9th Cir. - Nov. 23, 2015)

The Ninth Circuit correctly reads Rule 15 in this opinion.  Unlike the district court.

Rule 15 allows you to initially amend your complaint with the consent of the other side and then, if you want, later file an amended complaint as a matter of right.  Even in the face of a 12(b)(6) motion to dismiss, and even after the deadline for the opposition to that motion has expired.

You're allowed to amend your complaint once "as a matter of right" (within specified time periods).  You don't waive, or exhaust, that right by previously amending your complaint via the alternative means of amendment; e.g., with consent of the court or the opposing party.  You've still got your amendment as a matter of right.

Only once.  But once indeed.

U.S. v. Pedrin (9th Cir. - Nov. 23, 2015)

Judge Noonan wants this opinion taken en banc.  He's on the panel (and dissents), so he gets to recommend such a course of action.  But he's a senior judge, so gets no actual vote.

Number of votes to take the case en banc?  Zero.

Thursday, November 19, 2015

Young's Market Co. v. Superior Court (Cal. Ct. App. - Nov. 19, 2015)

San Diego Unified is trying to figure out if it wants to acquire through eminent domain some property that's adjacent to a school.  So it wants to inspect it.  Principally for environmental contamination.  By contrast, the owners don't want to sell, and don't want the property taken either (even were they given just compensation), so they won't let the school district in.  The school district gets a court order that allows 'em to inspect the place and take soil samples, etc.

Is that permissible?

The Court of Appeal says it is, and I'm inclined to agree with 'em.  Though I have a question or two.

One question relates to the nature of the holding.  The trial court granted a right of entry pursuant to Section 1245.010 of the CCP, and that's what the Court of Appeal affirms.  But Justice O'Rourke's opinion repeatedly says that the entry is permissible because what San Diego Unified intends to do doesn't constitute a "taking" under the Constitution.  See, e.g., Page 18 ("As we explain below, the District's activities do not amount to a taking.")

But I'm not sure that's what the Court of Appeal really means; or, if it does, that's really right.

What San Diego Unified plans to do definitely deprives the landowner of a portion of the bundle of sticks that is its rights in the property.  Moreover, what the school district is planning to do is hardly a tiny little thing that has no meaningful effect whatsoever on that bundle.  San Diego Unified says it'll be on the property conducting testing for around two full weeks, and here's what it plans to do:

"[C]oring 10 locations of concrete using a two-inch diameter drill bit in concrete up to six inches thick; boring 33 holes within a 50-foot square grid partially outside of the building's footprint, 30 holes at three feet deep and three at 20 feet deep; collecting soil samples from the borings; collecting groundwater samples from the 20-foot borings; boring three 15-foot holes adjacent to the 20-foot holes per Department of Toxic Substances Control requirements; collecting two soil vapor samples; abandoning the borings by backfilling the three-foot holes with clean sand to near the ground surface and resurfacing with concrete; backfilling the 20-foot holes with bentonite grout to near the ground surface and resurfacing with concrete; surveying and inspecting the building to identify homogeneous areas, suspect materials and suspect surfaces; non-destructive X-ray fluorescence testing to test surfaces suspected to contain lead; bulk sampling by a Division of Occupational Safety and Health Certified Asbestos Consultant or Site Surveillance Technician of postage-stamp-sized pieces of building materials suspected to contain asbestos; [etc.]"

Dude!  Imagine that someone wanted to come onto your property and do that?  Would you be just fine with that?  Is that something that the government can really do with absolutely no constraint, at its whim, and without paying anything for its undeniably burdensome access to your land?

I think not.  Yet if the Court of Appeal really means what it says -- that San Diego Unified's conduct doesn't amount to a "taking" at all -- then that's the consequence.  Since if it's not a taking, then there is no duty of just compensation.  You're utterly powerless whenever the government wants to come on your property for a couple of weeks and repeatedly drill 20-foot holes through concrete.

There's nonetheless substantial reason to think that that's not what Justice O'Rourke means to say.  As San Diego Unified here was required to (and did) post $5000 to compensate the landowners for the value of the disruption to the property (and its tenant).  The landowner (and tenant) said that wasn't enough, and that they were entitled to a jury trial on this issue, but the Court of Appeal disagreed.

I think it may well be that temporary takings of a sort may perhaps be insufficiently burdensome to justify the full panoply of rights normally provided in a classic eminent domain action; e.g., the right to a full trial and compensation decided by a jury.  Including, in my view, in this case -- though I'll admit that I think the issue is a close one, since the burden here is definitely non-trivial.  So I may well be on board for the more limited holding that the landowner here doesn't get to stop the testing before a full jury trial on the value of compensation.

But as for whether the access to its land is, in fact, a taking -- well, it surely is.  At least in my view.  Maybe a sufficiently temporary taking as to be permissible.  But a taking nonetheless.  And as such the landowner is entitled to just compensation.  Maybe decided by a judge.  Maybe pursuant to an abbreviated procedure, with a bond posted in advance being sufficient.

But the landowner's entitled to something.  Because it's a taking.  So when the Court of Appeal appears to say otherwise -- in words that are at least facially clear -- I'm not sure I agree.

One other point.  The California Supreme Court will shortly decide a case that's darn similar to this one.  Here's what the Court of Appeal says about it:

"In Property Reserve v. Superior Court (2014) 224 Cal.App.4th 828, review granted June 25, 2014, No. S217738, involving the State of California's petition to enter properties for environmental and geological studies so as to determine their suitability for a proposed water tunnel, the California Supreme Court will address the following questions: "(1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking? (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking? (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?"

The briefing in that one's complete.  I'd expect a decision by the California Supreme Court within the next six to eight months.

Given that reality, I wonder if the current opinion by the Court of Appeal is really worth all that much.  Sure, it's important to vacate any stay, and get underlying stuff moving (e.g., the inspection) since we don't want progress further delayed by a fight in the courts.

But there's a fair chance that the California Supreme Court will send this matter back to the Court of Appeal in light of whatever it decides in Property Reserve next year.  Given that fact, I wonder if it makes much sense to write a really long opinion (like the one here) rather than just a short one that resolves the matter (or merely dissolves any stay) and awaits the California Supreme Court.  Which will undoubtedly have a ton to say about the matter.

Just a thought.

Justice O'Rourke's opinion is definitely worthwhile.  And there's a lot to be said for it.

Though I might at least tighten up the language about whether what will transpire here constitutes an actual "taking".  Because it seems to me that it does.  At least a temporary one.  For which the owner of the property is indeed entitled to just, albeit very limited, compensation.

(Oh, and I happen to know a little bit about the underlying property as well, since the tenant on that property operates a go-kart facility that my kids have occasionally been to for various birthday parties over the years.  Trust me:  San Diego Unified's boring in the parking lot will be a hassle.  Not a huge one.  Not justifying anywhere near the $500,000 that the landowner contends would be appropriate compensation.  But a tiny bit of a hassle, that might in some small way deter someone at the margins from deciding to have a birthday party, or other activity, there.  So the landowner/tenant should indeed get paid.  Just not much.)

Wednesday, November 18, 2015

Harris v. Superior Court (Cal. Ct. App. - Nov. 18, 2015)

I'd be surprised if the California Supreme Court decided against grating review in this case.  Because it's definitely an issue that should go up.

It's an issue that implicates thousands (if not tens of thousands) of other cases.  Basically the scoop is this:  Voters recently passed Proposition 47 which allows defendants to petition (in various categories of cases) to reduce certain felony convictions to misdemeanors.  But the prosecution doesn't like that, particularly in cases in which there was a plea bargain; e.g., where defendant agreed to plead guilty to X offense, in return for Y sentence, but now seeks relief (as authorized by Proposition 47) to reduce the X offense to a misdemeanor and hence only have to serve a sentence of less-than-Y.

So does the passage of Proposition 47 allow the prosecution to retroactively withdraw from the plea agreement, even after the defendant has (as here) served years in prison, or do we assume that both parties (the prosecution and the defense) are bound because they're deemed to incorporate any future changes in the law?

The Court of Appeal here holds that the prosecution can indeed withdraw from the plea agreement in light of the subsequent passage of Proposition 47, since it deprived the prosecution of the "benefit of the bargain," and that such a withdrawal doesn't contradict the fundamental purpose of Prop. 47 even though most convictions are the result of plea bargains.  Justice Mosk dissents, and would decide the case the other way.

You gotta take this issue up, and definitely resolve it one way or the other.  Especially since there are analogous California Supreme Court cases going both ways:  one that says that a plea bargain can be retroactively withdrawn when subsequent legislation makes the offense to which defendant pleaded guilty not a crime at all (and hence would require his immediate release), but then a subsequent case that says that defendants aren't entitled to withdraw their plea even if subsequent legislation deprives 'em of a large part of the benefit of their bargain (e.g., sex offender registration).  You can't -- or at least shouldn't have a one-way ratchet that says that the prosecution can withdraw from a deal if the voters do something the prosecution doesn't like (as a way of getting around what the voters did) but the defendant can't do the same thing in similar circumstances.

Plus this is just too big, and important, of an issue to let it be resolved by the vagaries of which panel in the Court of Appeal a particular defendant happens to draw.

No need to wait for the issue to percolate further in the Court of Appeal.  Particularly given that the defendants at issue will be sitting around in prison, deprived of their (alleged) rights under Prop. 47, during this entire period.

Take the case up now and resolve it once and for all.

Tuesday, November 17, 2015

I.R. v. Los Angeles USD (9th Cir. - Nov. 15, 2015)

District Judge Real gets reversed.  But the case isn't reassigned to a different judge on remand.

So that's progress.

It's also an interesting resolution of the appeal, since under today's ruling, local school districts will be required to initiate due process hearings in tons of IEP settings -- hearings that ordinarily only take place when the parents (rather than the school district) requests them.  That'll turn a lot of IDEA proceedings on their head.

Which may or may not be a good thing.  But it's definitely a change.  And a big one.

Monday, November 16, 2015

Sterling v. Sterling (Cal. Ct. App. - Nov. 16, 2015)

I'd mention this opinion if only because you probably already know about its background.  This is the appeal of the fight between Donald and Shelly Sterling over the $2 billion sale of the L.A. Clippers.

The trial court allowed Donald to be removed as a trustee of the trust and hence allowed the sale to go forward.

The Court of Appeal affirms.

The appeal wasn't even close.  Donald was going to lose.  Easily.

But in doing so, not only does Donald's side lose, but it also gets slammed a bit.

As for Donald himself, the Court of Appeal publishes a variety of details that don't make him look especially awesome.  (Not that he's got much to lose in that department given, inter alia, his prior recorded statements.)  Including  that "Donald was unable to spell the word 'world' backwards" and "[w]hen asked to subtract 7 from 100, he could not perform the calculation past 93 (100- 7=93); he could not subtract 7 from 93 (93-7=86)."  Not that there's anything wrong with that.  But it does let everyone know -- if they didn't already -- that Donald's Alzheimer’s disease (which was confirmed through a PET scan) was fairly serious.

As for Donald's attorneys, well, they don't come out smelling awesome either.  Here's a footnote in which the Court of Appeal describes the "valuation expert" that Donald's attorney called in the trial court (whose name, by the way, is Dean Bonham):  "The probate court found Donald’s purported expert on valuation not credible. The court 'found his training and experience totally lacking including no high school diploma, no college degree, no formal training in accounting for valuation of businesses.' Additionally, he misrepresented his expertise when he testified."  That's not exactly going to cut it.

The Court of Appeal also doesn't obfuscate its take on Donald's appellate attorneys either (who are with Samini Law).  Here's a taste of that:

"Donald’s appeal suffers from numerous deficiencies. First, California Rules of Court, rule 8.204 requires that each brief support reference to a matter in the record with citation “to the volume and page number of the record where the matter appears.” [Citations] Donald repeatedly cites to matters without identifying the volume and page number in the appellate record where the item appears. He makes factual assertions with no citation to the record and cites to lengthy exhibits from the trial court without identifying their location in the record on appeal (most of which he failed to include in the appellate record). His reply brief contains hardly any citation to the record to support his factual assertions.

Second, Donald summarizes the evidence in the light favorable to his position and ignores the probate court’s credibility determinations. He has devoted most of his briefs to rearguing the facts and relies on evidence expressly rejected by the probate court. As a result Donald has forfeited his arguments on appeal based on the sufficiency of the evidence including his argument that the evidence does not support the probate court’s determination he was properly removed as a trustee. 

Third, by way of this appeal, Donald seeks the following relief: 'that this Court reverse the probate court’s orders and direct that the sale of the Los Angeles Clippers from [Rochelle] to Ballmer be undone.' Donald fails to show that he is entitled to this relief. He cites no authority for the proposition that this court can “undo” a sale after that sale was sanctioned under section 1310(b). (His argument directly contradicts the argument made in his writ petition that the sale could not be undone once completed.) Acts taken pursuant to section 1310(b) are valid regardless of the outcome on appeal. [Citations] Therefore, even if Donald is successful, the sale of the Clippers cannot be 'undone' and Donald seeks no other relief and demonstrates no other prejudice. Although this issue is dispositive, we discuss Donald’s arguments as if he were able to demonstrate prejudice."

We'll see if the lawyers are able (or willing) to control their client when we see whether Donald files a request for review by the California Supreme Court (and/or an equally frivolous petition for writ of certiorari from the U.S. Supreme Court).  If so, that'll speak volumes about the participants here.

In Re A.O. (Cal. Ct. App. - Nov. 12, 2015)

Justice Codrington's opinion repeatedly notes that the mother in this dependency case has "bi-polar" disorder.  She uses the dashed version of this word eight times in the opinion, but twice uses the term "bipolar" without the dash.

I'd drop the dashes and just go with the term "bipolar."  Which is what pretty much everyone else does as well.

P.S. - Judge Codrington subsequently edited her opinion, but with respect to substance, not form.

Friday, November 13, 2015

NLRB v. Fresh & Easy Neighborhood Market (9th Cir. - Nov. 13, 2015)

The Ninth Circuit issues this labor law opinion today, written by Judge Berzon.  I'll say as an aside that I'd loved to have been there when the petitioner, the United Food and Commercial Workers Union, learned that Judge Berzon -- a famous union-side labor law attorney -- was on the panel; moreover, that she was joined by Judge Pregerson (and a district judge sitting by designation).  Talk about a dream panel for your side!  The resulting party at the UFCW must have been a blast.

It'll perhaps come as no surprise to learn that the UFCW wins the appeal.  The Ninth Circuit decides that the subpoena that the UFCW issued to Fresh & Easy was not, in fact, properly served, but that the improper service didn't matter because Fresh & Easy didn't properly exhaust its remedies and did not suffer any prejudice from the improper service.  So the subpoena -- which was issued in advance of an NLRB hearing about an unfair labor charge -- should be enforced.

Fair enough.

There's a Fresh & Easy store very close to my home, and it's a place where my family often shops.  For that reason, plus the fact I read the news, I'm keenly aware that while the dispute at issue here was undoubtedly hotly contested when it was first brought (in January 2011), the relevance of this issue (and the subpoena) seems virtually nil at this point.  Since Fresh & Easy is now closing of its stores and going out of business.  Indeed, just last night, my wife stopped by there to try to pick up a few things, and described the place as being like an old-time Eastern European grocery store.  The shelves are nearly empty, with only the most random grocery items left for sale (albeit at huge discounts).  And even the things like the store's lights and fixtures have price tags on them.  If there's ever a place where a sign "Everything Must Go!" would be appropriate, Fresh & Easy fits the bill.

And it's not just my local neighborhood store.  Every Fresh & Easy is closing.  Forever.

So the respondent, Fresh & Easy, is now in bankruptcy, and is liquidating.  And won't have any (or at least any union) employees in very short course.

For this reason, I looked at the opinion to see if there was any discussion about whether the case is moot or not.  Since, at this point, I'm not at all sure that anyone cares in the slightest about whether Fresh & Easy did something wrong in December 2010 when it posted signs in front of four of its California stores that said "“Sorry but we don’t allow solicitation, loitering or the posting of flyers."  Similarly, I have some serious reservations about whether the NLRB hearing about this alleged unfair labor practice -- for which the subpoenas at issue were issued -- actually matters at all at this point, or will ever actually recommence.  Since everyone's being laid off anyway.  Any mention of any of this stuff, or whether it makes the case moot?

Nope.  No mention.  Not even in a footnote.

Which maybe doesn't matter on the merits.  Maybe since, at I type, there's still at least one unionized employee manning the cashier at a nearly-vacant Fresh & Easy store, the appeal isn't technically moot.  (Though I still wonder, given the realities of the situation, whether federal courts and/or the NLRB can grant any effective relief at this point, which might matter doctrinally.)

I guess we'll have to see.

I'll add one closing observation.  The appeal was filed in 2012.  Oral argument in the Ninth Circuit was heard on February 6, 2014.  The unanimous opinion, without a dissent, was issued today, over a year and a half after oral argument.

Twenty-one months is a long time to write an opinion.  Things can happen in the meantime.

Including but not limited to one of the parties going completely out of business and the case becoming effectively over.

U.S. v. Gasca-Ruiz (9th Cir. - Nov. 12, 2015)

The Ninth Circuit takes this case en banc.  But I don't recognize the caption.  What's the deal?

Maybe it's a published opinion I forgot about?  Nope.  No published opinion with that docket number.

Maybe it's the rare successful en banc call for an unpublished opinion?  Nope.  No unpublished opinion with that docket number either.

Maybe it's a case where, during oral argument, it became clear that the case should be taken en banc?  Nope.  No audio or video of the oral argument.

So I have to spend the money to go on PACER and find out the scoop.

No oral argument.  Argument was scheduled for September 4, 2015.  Then moved up a day to September 3, 2015.  Then, two weeks later, oral argument is cancelled altogether, and the case ordered submitted on the briefs.

Then a sua sponte en banc call on October 5, 2015, which then succeeds.

So the order says that the case will now be "reheard en banc," which is a little misleading.  Since it's never actually been heard.

Looking forward to the outcome.  Or even learning what the thing's about.

Thursday, November 12, 2015

People v. Villasenor (Cal. Ct. App. - Nov. 12, 2015)

Today's opinion demonstrates the perils of wearing a red belt.  At least in Sacramento:

"Armando Lopez was a member of the Norteño criminal street gang and routinely wore red to signify his membership in the gang. During the early morning hours of January 24, 2010, he and three of his roommates left a party and returned to their house on Kesner Avenue in North Sacramento, near Del Paso Heights. One of the roommates drove another roommate’s car to and from the party. On the way home, they stopped to pick up some fast food. Each of the roommates had been drinking. Lopez appeared to be the most intoxicated. When the other roommates got out of the car to bring the food into the house, he stayed in the back seat 'mumbling.' His roommates decided to leave him there while they went inside to eat. A short time later, Lopez managed to get out of the car. But instead of coming inside the house, he walked over to his car, which was also parked on the street in front of the house, and got into the driver’s seat.

As Lopez was changing cars, a group of Sureños was driving through the neighborhood. Raquel Benavidez, seated in the back seat behind the driver, testified . . . [that] when they passed a Mexican man sitting in a car on the side of the street, either defendant or his brother told Clancy to stop the car, which she did. Defendant and his brother got out of the car and walked over to the man. Defendant asked: “Do you bang? Where are you from?” Benavidez understood these questions to be a gang-related challenge. Defendant then reached into the car and lifted up the man’s shirt. Seeing a red belt, defendant said, 'he’s a Norteño,' pulled out a handgun, and shot him twice. Defendant and his brother then got back in Clancy’s car and the group drove away as defendant said: 'I hope he dies.'"

The lesson, apparently, being not to Drink and Wear A Red Belt.  Or, maybe, not to belong to a violent gang.

Something like that.

Wednesday, November 11, 2015

Public Integrity Alliance v. City of Tucson (9th Cir. - Nov. 11, 2015)

It's definitely a weird system.  There's a primary election in Tucson in which each individual ward chooses the person who'll represent the relevant party (from that ward) at the general election.  But then, in the general election, everyone in the city votes for one council member from each ward.  To represent the entire city.

Judge Kozinski says that's unconstitutional.  Judge Tallman says it's just fine.

Judge Kozinski writes the majority opinion.

Tuesday, November 10, 2015

In Re Marriage of Bonvino (Cal. Ct. App. - Nov. 10, 2015)

"Husband married Dawnel E. Stolteben Bonvino (wife) on October 2, 1993. He stopped making contributions to his retirement plans at Hill-Rom [his employer] as of the marriage date in order to keep his accumulated earnings in those plans as his separate property. . . . Husband found another job in sales at COHR, Inc. in Chatsworth, California. Wife stopped working after their son was born in 1996. They decided to move to a neighborhood closer to husband’s job and more suitable for raising a family. They found a property for sale in Westlake Village . . . . Husband applied for a loan in the amount of $328,000, which included $319,787.50 for the remainder of the purchase price and $8,212.50 for the loan’s closing costs and prepaid items. The loan application stated the title to the Westlake Village property would be held in the name of Frank Bonvino, as 'married sole and separate.' . . . The deed of trust reflects that Chase Manhattan Mortgage Corporation made the loan of $328,000. Wife did not sign the loan or escrow documents. On November 15, 1996, husband drove wife to a notary to sign a quitclaim deed for the Westlake Village property. Both husband and the notary told her that signing the quitclaim deed was a mere formality."

When you're making sure to keep your separate property separate during a marriage, you're probably trying to do so for a reason.  Whether your spouse knows so or not.

The marriage here does indeed eventually terminate.  Leading to a fight.  That the Court of Appeal holds the husband may well (at least partially) win.

Monday, November 09, 2015

U.S. v. Falcon (9th Cir. - Nov. 9, 2015)

No statute of limitations.  Not dischargeable in bankruptcy.

Pay back your student loans.

We're serious about it.

Friday, November 06, 2015

Buchanan v. Soto (Cal. Ct. App. - Nov. 6, 2015)

Everything that Justice Benke says in today's opinion is correct.

Except I'd delete the third footnote.

The Court of Appeal is correct that there was personal jurisdiction (as well as proper service) over the defendant, who received real property in California from a debtor as a fraudulent conveyance.  That the defendant, after the conveyance, went to Mexico, and evaded service of process there, does not change things.  Justice Benke rightly holds that he's got the requisite minimum contacts because he owns real property in California and the dispute (the fraudulent conveyance action) arose out of those contacts with the forum.

Footnote three, however, tangentially notes that defendant also owns other real property in California that did not give rise to the fraudulent conveyance action, and then cites the Supreme Court's opinion in McGee as indicating that even a single contact with the forum state may be sufficient for minimum contacts, thereby suggesting that the other properly alone might also create personal jurisdiction.

McGee did indeed say that a single contact alone might be sufficient.  But only if, as in McGee, that single contact gave rise to the cause of action.  However, here, even if the defendant had other real property in California, that wouldn't matter, since that property didn't give rise to the fraudulent conveyance cause of action alleged by plaintiff.  So it's irrelevant.  (Unless those contacts somehow created general jurisdiction, which is an issue that the Court of Appeal expressly doesn't reach.)

So it's fine to mention that the defendant had other property.  But I wouldn't include a footnote that suggests that under McGee that might be enough to create specific jurisdiction.  Because it wouldn't.

Thursday, November 05, 2015

Dorsey v. Superior Court (Cal. Ct. App. - Oct. 22, 2015)

Here's a neat little trick that you can use if you're worried about an attorney's fee clause in a contract (or, most likely, anywhere else, for that matter):

Sue 'em in small claims court.

Normally, if the prevailing party is entitled to fees, that's the deal.  If the other side spends $20,000 in fees defending even a minimal lawsuit -- here, for example, a lawsuit against an HOA -- and that side prevails and the fees are reasonable, you'll have to pay 'em.  Which may well deter you from filing a claim against 'em if you're not sure you're going to win.

But in small claims court, lawyers aren't allowed.  So that partially solves the problem.  No lawyers means no fee award.  And you can (usually) sue 'em for up to $10,000.  So that's a big upside that effectively limits your downside as well.  Plus very low filing fees (and a quick trial)!

The part that's interesting -- and the part that the Court of Appeal resolves in this opinion -- is what happens if the defendant loses in small claims court.  At which point it can "appeal" to the superior court, which conducts a trial de novo.  In a forum in which attorneys are allowed.  So are you now on the hook for the other side's massive attorney fees if you lose?  Since they indeed expended 'em?

The Court of Appeal says "No."

The statute limits the maximum attorney fee award in a small claims appeal to $150 (or $1000 if the appeal was in bad faith).  Justice Nares holds that this statute overrides the other statutes that provide full recovery of attorney's fees pursuant to statute, contract, etc.  These things should be short.  So the attorney's fees should be minimal.  While the other side might be able to recover $20,000 in fees if the plaintiff initially filed in superior (or limited jurisdiction) court, that's not the case if the matter ends up there pursuant to a small claims appeal.

So if the matter's (relatively) small, and you're not sure you're going to win, and you don't feel like taking the risk of a hefty attorney's fee award to the other side, small claims court may indeed be the way to go.

Wednesday, November 04, 2015

Bocanegra v. Jakubowski (Cal. Ct. App. - Oct. 27, 2015)

Boy, this isn't a good fact pattern.  Indeed, it's somewhat scary:

"On July 16, 2011, Palm Springs police officers conducted a traffic stop of a car that Bocanegra was driving. He was cooperative. He produced his driver’s license, showing his name as “Jose M. Gonzalezbocanegra.” The officers then arrested him on the theory that he was Jose Gonzalez (with no middle initial), the person named in an outstanding arrest warrant for a misdemeanor parole violation.

Bocanegra was booked into a Palm Springs holding facility, then transferred into and booked again at the Banning Sheriff’s Station, then transferred into and booked yet again at the Riverside County Jail, and finally transferred into and booked at the Los Angeles County Jail. He was repeatedly subjected to harmful and offensive touchings, in the form of painful and/or prolonged handcuffing. Throughout this process, Bocanegra protested that he was not the Jose Gonzalez named in the warrant, and that his driver’s license, social security number, fingerprints, and booking photos would prove this, but to no avail.

Jakubowski was a deputy district attorney for the County of Los Angeles. Starting on July 20, 2011, Jakubowski had the opportunity to free Bocanegra. Jakubowski had a file that included Bocanegra’s driver’s license, social security number, fingerprints, and booking photos, as well as fingerprints and booking photos of the person named in the warrant. Thus, Jakubowski was on notice that Bocanegra was wrongfully imprisoned, in that a reasonable person in his position would have inquired into the validity of the imprisonment. Meanwhile, Jakubowski did not promptly turn over these exculpatory items to Bocanegra’s defense counsel.

Bocanegra had a court date scheduled for July 21, 2011. His attorney was going to be there and could have secured his release. Los Angeles County Sheriff’s deputies, however, did not let him attend the hearing. Bocanegra “vociferously complained” about this.

That night, Los Angeles County Sheriff’s deputies placed Bocanegra in a cell with a violent sexual predator, who proceeded to forcibly sodomize him. These deputies were retaliating against Bocanegra for his complaints; they intended “that some unwanted sexual attack take place in the manner that it did.”

On July 25, 2011, Bocanegra finally had his first court appearance. Jakubowski was present; he argued to the court that Bocanegra was, in fact, the person named in the warrant and should not be released. The judge, however, examined Bocanegra’s booking photographs and fingerprints, realized he was not the person named in the warrant, and released him. The judge even apologized to Bocanegra from the bench."

If even half of those allegations are true, it sounds like a darn good complaint.

Not against the prosecutor, mind you.  Since, as the Court of Appeal says, "we will hold that Bocanegra adequately alleged that Jakubowski was liable for false imprisonment; we will also hold that statutory prosecutorial immunity (Gov. Code, § 821.6) did not apply to the false imprisonment claim. However, the demurrer had to be sustained based on common law prosecutorial immunity."

Still.  A very bad set of facts.

U.S. v. Dreyer (9th Cir. - Nov. 4, 2015)

Here's something you rarely -- incredibly rarely -- see in an en banc opinion:  a member of the panel changing her mind.

Judge Berzon says:

"I join fully in the majority opinion. I write separately to explain why I am comfortable with the holding that suppression is not warranted, although the panel opinion I authored held otherwise."

The flexibility to change one's might in light of additional argument and analysis.  It's an awesome attribute of a judge.  Albeit virtually unprecedented.

Tuesday, November 03, 2015

In Re Marriage of Cecilia W. (Cal. Ct. App. - Nov. 3, 2015)

California law requires each parent (even if they're divorced) to support an adult child if they're disabled and unable to support themselves as a result.

"Robert suffers from Tourette's syndrome and attention deficit hyperactivity disorder (ADHD). Tourette's symptoms include affected motor skills, tics, and accompanying issues, including learning disabilities and emotional management issues. Robert exhibits all of these symptoms when stressed.

So Robert may potentially be disabled.  If, as a result, he's unable to support himself, both Father and Mother have a duty to help him; e.g., to provide child support to the other parent.

The trial court holds that Robert's indeed in this situation.  In some circumstances, that may well make sense.

But let me add some quick additional facts about Robert:

"Robert graduated from high school on time. He then attended Southwestern College, a community college. There, Robert earned two associates degrees and achieved a 3.3 grade point average, but took five years to graduate due to class withdrawals. Robert also needed accommodations, including intervention by Disabled Student Services, less distracting test settings, extra time for tasks, and tutors (including private math tutoring). In addition, he was admitted to urgent care and the emergency room twice during one semester because panic attacks caused tachycardia on one occasion and cardiac arrest on the other.

Since August 2012, Robert has been enrolled at the University of California, San Diego (UCSD).  He has had similar accommodations, including Disabled Student Services intervention, quiet test facilities, and flexibility for test completion time, as well as use of a laptop and tape recorder in class. He also has had a private Spanish tutor. Robert generally has earned B-range grades at UCSD."

The Court of Appeal reverses the trial court's decision because the trial court applied the wrong legal standards, and remands to the trial court to try again.

I'll add only one thing to Justice Huffman's opinion.  If Robert is indeed disabled, and unable to support himself under California law (e.g., unable to make a living), that result won't say much about either UCSD or Southwestern College.  At which Robert has earned a B+ and B- grade point average, respectively.

If you're able to graduate from college -- and fairly good ones, at that -- and are still unable to support yourself, that says something.

Monday, November 02, 2015

Mancilla-Delafuente v. Lynch (9th Cir. - Nov. 2, 2015)

After taking a break since last Wednesday, the Ninth Circuit today issues a published opinion.  Only one.  But it's something.

It's a straightforward opinion by Judge Callahan.  She holds that no matter what the equities, you get deported if you've been convicted of possessing someone else's credit card without their consent.  No eligibility for withholding of removal.  Period.

At least if that conviction takes place in Nevada; other states might be different.  At least if that Nevada conviction took place in 2009 (as petitioner's did); as of 2013, even in Nevada, such a conviction wouldn't subject you to removal (since the maximum penalty is now 364 days).

But since it was in Nevada, and since it was 2009, petitioner gets deported even though he's been in the United States for nearly two decades, and even if he can show, e.g., exceptional hardship to U.S. citizens as a result of his removal.  All from a conviction for which he was sentenced to a fine of $775 and two days credit for time served.

On the one hand, we don't need people in the United States who commit fraud.  On the other hand, adding the penalty of permanent deportation to someone who may have a family (and children) who have been in the United States for their entire lives seems a pretty big hammer to add to a crime that ordinarily only gets you two days in prison.

None of which is Judge Callahan's fault.  She's just applying the law.

But it's an exceptionally harsh -- and potentially arbitrary -- mistress.  At least in this field.  In which a guy in Nevada in 2009 gets deported, but a guy in Nevada in 2013 who does the exact same thing does not, and a guy in (say) Kansas in either year stays as well.  Even if the resulting harm to U.S. citizens in the latter scenarios is much less egregious than in the former.

Thursday, October 29, 2015

Donorovich-Odonnell v. Harris (Cal. Ct. App. - Oct. 29, 2015)

I love it when the Court of Appeal accurately summarizes the case in the first page or so.

As Justice McDonald does here.

It's an opinion of substantial importance.  On a topic about which many people definitely feel strongly.

So even though the whole opinion is worth reading, hopefully the first page will incentivize people to pour through the whole thing:  (I've deleted the citations for easier reading)

"Most states, including California, do not classify suicide or attempted suicide as a crime. Most states, however, including California, impose criminal liability on a person aiding and abetting suicide. Penal Code section 401, in effect since 1873, provides: "Every person who deliberately aids, or advises, or encourages another to commit suicide, is guilty of a felony." The crime is punishable by a state prison term of 16 months, two years, or three years, and a fine of up to $10,000.

On appeal, plaintiffs contend section 401 is inapplicable to physician aid-in-dying because prescribing a lethal dose of drugs a patient may or may not have filled or take is not direct participation in suicide and, in any event, the legislative history of section 401 shows the Legislature never intended that section 401 apply to a person furnishing the means of suicide. Alternatively, plaintiffs contend section 401 as applied to physician aid-in-dying violates the state constitutional right to autonomy privacy.

On October 5, 2015, Governor Jerry Brown signed the End of Life Option Act, which authorizes a terminally ill patient with the capacity to make medical decisions to request a prescription for a lethal dose of drugs, insulates a prescribing physician from criminal liability, and sets forth rigorous procedures and safeguards to protect against abuse. The parties agree Assembly Bill 15 does not render the appeal moot because it will likely not become effective in time to benefit plaintiffs, particularly Christy Lynne Donorovich Odonnell, given her life expectancy, and the measure's future is uncertain because opponents have filed paperwork with the Attorney General to challenge it by referendum on the state ballot in 2016.

We have great compassion for plaintiffs, but we conclude their statutory and constitutional arguments lack merit. We agree with defendants that physician aid-in-dying, and attendant procedures and safeguards against abuse, are matters for the Legislature. We affirm the judgment for defendants entered after their demurrers to the complaint were sustained."

There's lots more human detail in the opinion.  For example, here's a brief description of one of the plaintiffs:  "Donorovich-Odonnell, who resides in Santa Clarita, suffers from stage IV adenocarcinoma of the left lung, which has metastasized to her brain, liver, spine, and rib. At the time of the complaint's filing in May 2015, her estimated life expectancy was less than six months. She is morphine intolerant and cannot benefit from many of the most common and effective forms of pain management."  California tells her to suck it up.  More accurately, it tells her that she can kill herself if she wants to, but she can't get any help, and she has to do it in a way that's prolonged (e.g., starve herself), painful (e.g., slit her wrists), or ugly (e.g., blow her brains out).

One can have different perspectives on the resulting issues.  But there should be no doubt that this is a vital question.  For Ms. Donorovich-Odonnell as well as for everyone else.

But, as of now, at least, terminally ill patients like Ms. Donorovich-Odonnell get no help at all from the California judiciary.

Wednesday, October 28, 2015

Dhawan v. Biring (Cal. Ct. App. - Oct. 28, 2015)

This is why (except in personal injury actions) you ask for a specific amount of damages in your complaint.  Because if you don't, and even if you later serve a statement of damages, the default judgment that you will obtain will be void.  And can be vacated.

Even seven years later.

Tuesday, October 27, 2015

People v. White (Cal. Ct. App. - Oct. 27, 2015)

I agree with Justice Yegan:

"Hillary Travon White has a strong arm. He threw a metal showerhead at reinforced glass with sufficient force to shatter the glass, causing particles to hit peace officers on the other side As we shall explain, this conduct may constitute assault by force likely to produce great bodily injury. . . .

On December 3, 2013, appellant was incarcerated at a CYA facility and got into a fist fight with another inmate. Appellant refused to stop fighting and was "pepper sprayed" by CYA Correctional Counselor Elmore. Angry, appellant called Elmore a "bitch" because he was the only one "pepper sprayed."

Appellant was permitted to wash off in a shower that had a window facing the control desk where Elmore and Parole Agent Zavala were seated. The desk was six feet away from the shower window, which was a multi-paned partition constructed of wire-reinforced glass. Some glass panes were missing.

Appellant broke off the metal showerhead and threw it in the direction of the window. Elmore heard a "loud thud and shattering glass." The showerhead bounced back but broke a window pane, spraying glass particles on Elmore and the desk countertop. Elmore felt a sliver of glass hit her eye, alerted her coworkers, and went to the restroom to treat her eye.

Appellant moved to within one or two feet from the window, picked up the showerhead, and threw it again. Zavala heard "another loud bang" and felt a shower of glass particles hit her. A piece of glass cut her lip. The showerhead penetrated the window and landed near the desk. . . .

Appellant argues that a reasonable person would assume the window was unbreakable because it was wire-reinforced glass. He amplifies the argument stating that if he wanted to harm the victims, he could have thrown the showerhead through a window pane that had no glass. That appellant had a poor aim or that the window had a safety feature are not defenses. The assault charges did not require a specific intent to injure the victims or a substantial certainty that an application of physical force will result. (People v. Williams, supra, 26 Cal.4th at p. 788.)

Appellant also argues that he could not be convicted based on facts he did not personally know, i.e., that reinforced glass could be broken. But that is not the test. (Ibid.) The test is whether a reasonable person would reasonably believe that a metal object, if thrown with great force, would directly and probably injure a person on the other side of the window. (Ibid.) "[A] defendant who honestly believes that his act was not likely to result in a battery is still guilty of assault if a reasonable person, viewing the facts known to defendant, would find that the act would directly, naturally and probably result in a battery." (Id., at p. 788, fn 3.)

Shooting a firearm at a victim who is protected by bulletproof glass is an assault. (People v. Valdez (1985) 175 Cal.App.3d 103, 108.) This is akin to what happened here."

I'll add that it's not just assault.  It's assault that's likely to produce great bodily injury.

Even if the glass is reinforced, and even if the other guy's wearing a bulletproof vest.

Monday, October 26, 2015

Crittenden v. Chappell (9th Cir. - Oct. 26, 2015)

It's an AEDPA death penalty habeas case.  The question is whether the prosecutor improperly used a peremptory challenge to dismiss the only African-American in the juror pool.

Judge Fisher writes the majority opinion.  Judge McKeown dissents.  Can you guess the outcome?

Conviction reversed.

It'll be a struggle to read the entire 65-page (single-spaced) opinion and dissent.  But it's worth it.

That said, I'd be extraordinarily surprised were this the end of the story.  There will be, I strongly suspect, an en banc call.  And, if it prevails, a split opinion (IMHO) on the merits.  (Depending, of course, on the draw.)

And review by the Supreme Court is distinctly possible as well.  Notwithstanding the fact that this is an exceptionally fact-specific case.

Stay tuned.  But in the meantime, a great discussion by both sides.  Of a very important issue.

Friday, October 23, 2015

In Re ChinaCast Educ. Corp. Sec. Lit. (9th Cir. - Oct. 23, 2015)

China's a great place to invest.  Who could possibly lose money in such a market?

Well . . . .

"ChinaCast, founded in 1999, is a forprofit postsecondary education and e-learning services provider that sells distance learning and “multimedia education content” over the Internet and from three campuses in China. . . . ChinaCast boasted a market capitalization topping $200 million and was listed on the NASDAQ Global Select Market. ChinaCast’s stock offerings in the United States in 2008 and 2009 generated $48 million in net proceeds. . . .

[T]he complaint alleges, ChinaCast’s founder and CEO, Ron Chan Tze Ngon (“Chan”), looted the company’s coffers, including proceeds from the U.S. stock offerings. From June 2011 through April 2012, Chan “transferred” $120 million of corporate assets to outside accounts that were controlled by him and his allies. In addition, Chan permitted a company vice president to move $5.6 million in company funds to his son; “unlawfully transferred control” of two of ChinaCast’s private colleges outside the company; and pledged $37 million in company assets to secure third-party loans unrelated to ChinaCast’s business. These actions brought ChinaCast to financial ruin. The company cannot even afford its legal bills, according to its lawyers, who submitted a bare-bones brief on appeal and stated that “ChinaCast now unfortunately lacks the funds necessary to mount with full vigor the defense of this appeal.”

In the midst of this fraud on multiple fronts, Chan and ChinaCast Chief Financial Officer Antonio Sena participated in a series of earnings calls and other communication with investors. During these calls, neither official disclosed the fraudulent activities taking place; instead, Chan emphasized the company’s financial health and stability. For example, in a press release and conference call in fall 2011, Chan reassured investors that “no questions or concern[s] have ever been raised by the company’s auditors or audit committee about our cash balances.” Throughout 2011, Chan signed SEC filings on behalf of ChinaCast and never disclosed the $120 million in transfers and other fraudulent activities afoot."

Not good.

Thursday, October 22, 2015

Beverley Hills USD v. Los Angeles County MTA (Cal. Ct. App. - Oct. 22, 2015)

"What?!  You're putting the subway directly under me?!  Under Beverley Hills High School?!  This shall not do!"

So the Beverley Hills Unified School District sues.

But the trial court denies the petition.  And the Court of Appeal affirms.

Sorry.  Even rich people (and their kids) occasionally have to get on the subway.

Or at least have it be beneath them.

Najera v. Shiomoto (Cal. Ct. App. - Oct. 13, 2015)

Here's how you get your license back even after a DUI with a .19 blood alcohol content.

I think I'd have decided the case the other way.  The guy was drunk.  Way drunk.

Wednesday, October 21, 2015

Grebow v. Mercury Ins. Co. (Cal. Ct. App. - Oct. 21, 2015)

Your house is collapsing.  There's severe decay in the steel beams that support the second story of your home.  The contractor and structural engineer tell you not to immediately vacate the home and not live there until the beams are replaced.  Because the thing's going down.

You freak out.  You vacate the home and spend $90,000 to fix the thing.  Because you don't want your house to collapse. Which it's going to do unless you get it fixed.

Fortunately, you have homeowner's insurance with Mercury Insurance Company.  Which expressly covers you for any collapse.  So you request reimbursement.

Mercury Insurance tells you to pound sand.  So you sue.  The trial court grants summary judgment.  Because your house hasn't collapsed yet.  So you're not entitled to a penny.

The Court of Appeal affirms.

Justice Mosk holds that even if the collapse was totally imminent, there's no coverage.  Because you fixed it first.  Now, if you'd have let the thing collapse, yeah, you're covered.

But you're an idiot.  You actually wanted to save the house.  And, for that, it's all totally on you.  Or, as Justice Mosk puts its, "When an insured can prevent an insurable loss from occurring, he or she does so because he or she would rather have the house and property in it than insurance proceeds or reconstruction. The homeowner generally would rather stay in the house than have it reduced to rubble and not have to replace personal possessions."

Your bad for not letting the house be "reduced to rubble" and trying to save your personal possessions.  Your selfish interest in that regard lets the insurance company off the hook.

People v. Woods (Cal. Ct. App. - Oct. 20, 2015)

Man ("Woods") meets Woman ("A.C.") while both of them are playing "Worlds of Warcraft" online.

Man is in California.  Woman is in Rhode Island.  Indeed, Woman is married, and has a twelve-year old daughter, as well as three stepsons of her husband.

Woman plays way too much WoW.  (From what I hear, this seems to be a common problem.)  Her twelve-year old daughter ("Daughter") plays WoW as well.  Woman plays so much WoW that her marriage breaks up, since her husband isn't happy she's playing the game at all hours to the neglect of her family.  Fair enough.

Woman and Daughter thus move out of the house, and Woman continues to hang out online with Man.  Ultimately, Man and Woman plan to meet.  Man drives from California to Rhode Island to finally meet Woman in person.

I know you're thinking that I'm now going to say that Man kidnaps Woman, or Woman turns out to be a Man, or aliens invade or something like that.  Nope.  No such weirdness.

Okay, well, a little weirdness.  This is a criminal case after all.

First, the ages are not what you might suspect.  This isn't a 45-year old male trolling for a 14-year old woman.  Woman is 31.  Man is . . . 19.

Not what you initially thought, eh?

But that's fine.  Relationships -- particularly online relationships -- come in different styles.  I'm down with that.

You'll nonetheless notice that Man is actually closer in age to Daughter (a gap of 7 years) than he is with Woman (a gap of 12 years).

Though, to reiterate, Daughter is twelve.  Not good.

So now you can figure out why this is a criminal case.

Daughter sleeps in between Man and Woman at the hotel, Man allegedly molests Daughter, and Woman allegedly ignores Daughter's pleas.  Man then moves to Rhode Island and lives with both Woman and Daughter; ironically, in Woman's parent's home.  Man allegedly continues to molest Daughter, pretty much every day, and this continues a long time, including when Man, Woman, and Daughter move into their own place in Rhode Island, and then when they're all living together once they move to San Diego.

Hence why it's a criminal case in California.   (Parenthetically:  In San Diego, the group initially lives with Man's father, stepmother, and grandfather.  Keeping everything in the family again.)

I'll spare you the details of the alleged daily molestation, which the Court of Appeal spells out in exhaustive detail.  But I will give you one line from the opinion, which is also unusual:

"A.C. [Woman] would occasionally participate in the sexual encounters between C.C. [Daughter] and Woods [Man]. . . . At some point, Woods began taking pornographic photographs and videos of himself, C.C., and A.C. engaged in various sex acts."

Ick.  Especially ick.

I'll leave aside the abortion, some other gross stuff, and the abuse.  Here's another piece of the story -- which comes only pretty late in the opinion -- that you don't usually see in these types of cases:

"C.C. testified that at some point in time, as early as when the three were living in Rhode Island, she developed romantic feelings for Woods and began to regard him as her boyfriend. She started to act 'like a girlfriend.' C.C. testified that she believed she 'should make [herself] like him and it will make it easier.' She also testified that once she began regarding Woods as her boyfriend, she and Woods went out on dates, and she occasionally initiated sex with him. C.C. told Woods that she loved him on a daily basis, and made plans for a future with Woods."

As you can figure out, ultimately, the authorities get involved.  Here's how the whole sordid tale comes to an end:

"In early January 2012, A.C. called the police after Woods was violent toward her and C.C. Woods had pushed A.C. down to the floor and had thrown C.C. onto the bed so hard that the bed broke. After A.C. and C.C. left the house, Woods sent A.C. threatening text messages. In the first, he said, "I'm going to find you and kill anyone you're with." Another said, "I'm killing myself and all the animals with me. Fuck you guys." A.C. was concerned that he would follow through on his threats.

The law enforcement officer who investigated the incident noted that Woods was six feet tall, and weighed 245 pounds. C.C. was "much smaller." C.C. did not mention the sexual abuse to the officer because her mother had told her not to say anything about it, and she feared she would "get taken away" from her mother.

Shortly after this incident, C.C. went to West Virginia to live with a "friend."

In early March 2012, Woods met Brittany M. online and they began a romantic relationship. Later that month, Brittany moved in with Woods at his father's home in Ramona. On August 9, 2012, Brittany called the sheriff's department to report that Woods possessed child pornography. Woods had given Brittany two computer memory sticks and asked her to destroy them. Brittany eventually discovered that the memory sticks and Woods's computer contained explicit pornographic images and videos involving C.C., whom Brittany knew was the daughter of Woods's ex-girlfriend, and a minor.

A few weeks after Brittany contacted the authorities, police executed a search warrant and seized Woods's computer, cellular telephones and a computer tower. A forensic examiner found "thousands" of pornographic pictures and videos depicting C.C., Woods, and A.C. on these devices.

Woods and A.C. were arrested. A.C. cooperated with police and eventually pled guilty to committing lewd acts with a minor, felony child abuse, and felony accessory after the fact. A.C. testified for the prosecution at Woods's trial."

Woods ultimately gets sentenced to life in prison without the possibility of parole, plus an additional 53 years in prison.  The Court of Appeal reverses some of his convictions for failure to instruct on some lesser included offenses, so that's a partial victory for him.  But likely a temporary one.  He's still in prison.  And still facing a retrial.  At which he may well be convicted again.

Plus his fellow inmates aren't likely to appreciate the nature of his offenses.

So thing look bleak for Woods whatever way you cut it.

And remember, he was 17 when this all started.  Playing World of Warcraft and flirting with a MILF online.

Things went badly after that.  Incredibly, incredibly badly.  For everyone involved.

Tuesday, October 20, 2015

Jameson v. Desta (Cal. Ct. App. - Oct. 20, 2015)

Part of me is glad that Justice Nares decided to publish this opinion.  Because that may make slightly more likely a grant of review by the California Supreme Court.  Which should reverse.

At issue is a pro se complaint filed by an incarcerated inmate who claims that a hospital doctor improperly treated his hepatitis.  The events at issue transpired in 2002.  The case is still ongoing.

Three times the trial court previously entered judgment in favor of the defendant.  Three times the Court of Appeal reversed and remanded; in 2007, again in 2009, and again in 2013.

I won't recount the facts of the case, which are adequately discussed in the prior opinions.  The most troubling portion of the present appeal is the trial court's grant of a nonsuit.  Which the trial court did immediately after the plaintiff's opening argument.

Plaintiff says that the nonsuit was improper.  Justice Nares, however, says that this contention requires a transcript of the trial, which doesn't exist, so it's not cognizable.  That part of the opinion may well be right.

But plaintiff says that he was impoverished, had been granted a fee waiver, and couldn't afford a court reporter, so one should have been provided for him.  But Justice Nares says simply that's not what the underlying rules require:  those rules (and the San Diego Superior Court rules) say that even those people with a fee waiver have to pay for their own court reporter if they want one.

Okay.  I follow that.  That's indeed what the rules may well say.

But Justice Nares thinks that's the end of the matter.  The statute says you don't get a court reporter, without a court reporter you can't prove the trial court erred, so you lose.  Sucks to be you.

Whereas, in my view, that's unconstitutional.

Poor people have a right under the Due Process Clause to seek redress in court.  Despite the fact they may be poor and can't afford the filing fees.  That's why (in part) we have fee waivers.  Because poor people are entitled to due process even if they can't afford to pay the relevant fees.

That Due Process right, in my view, is not satisfied by merely letting poor people in the door, only to slam it shut in their face once they're actually in court.  Poor people have the right to actual justice.  A right that, for example, includes the right to file an appeal.  Again:  Even if they can't pay for it.  That is why (again, in part) we allow fee waivers on appeal.  Because even poor people have the right to obtain justice in the trial court and, if the trial court errs, on appeal.

That right is meaningless, however, under the Court of Appeal's rule.  Which says that poor people can file an appeal, but have no right to a transcript, which means -- as here -- they automatically lose their appeal.

Yes, the relevant local rules expressly provide the poor people have to pay (incredibly high) fees for a court reporter, which they can't afford.  Yes, the appellate rules say that without a transcript, you're barred from raising any evidentiary errors on appeal, including the grant of a nonsuit.

Which is why the underlying transcript rules are unconstitutional.  Poor people have a right to have those fees paid as well if they make an adequate showing.  Which plaintiff undeniably made here in order to get the fee waiver (both in the trial court and on appeal) in the first place.

It may perhaps be that plaintiff here didn't make that argument.  (Though I imagine he may well have indeed made it.)  If so, Justice Nares should say so, rather than simply concluding -- as he does in the opinion -- that there's no right to a transcript, even where (as here) that dooms your appeal.  But if the argument was made (and, in truth, perhaps even if it wasn't), I think that the correct rule is that people in plaintiff's position are indeed entitled to a fee waiver for the transcript.  For precisely the reasons identified by the present case.

The Court of Appeal says at the outset of its opinion:  "While this court is sympathetic to the plight of litigants like Jameson whose incarceration and/or financial circumstances present [] challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case."  With respect, I don't think the Court of Appeal's holding properly reflects that sympathy.  There's a way we can allow impoverished individuals to obtain justice:  through fee waivers.  Those could, and should, apply to the provision of court reporters.  The Due Process Clause, in my view, affirmatively requires such a rule.  Whereas the Court of Appeal says that what transpired here was perfectly okay.

But it wasn't.  Which I hope that some other court at some point recognizes.

Sheridan v. Touchtone Pictures (Cal. Ct. App. - Oct. 20, 2015)

This blog is not TMZ.  My job is not to disseminate all the celebrity gossip that's fit (or not fit) to print.

Nonetheless, when I see an opening paragraph of a published opinion that begins like this, I can't help but mention the case:

"Touchstone Television Productions (Touchstone) hired actress Nicollette Sheridan to appear in the television series Desperate Housewives, a show created by Marc Cherry. Sheridan sued Touchstone under Labor Code section 6310.2 alleging that Touchstone fired her in retaliation for her complaint about a battery allegedly committed on her by Cherry."

Oooh!  Exciting!  A famous celebrity!  Hollywood!  Touching!  Firing!  Who couldn't be excited about that?!

I'm not going to discuss the merits, which you're free to read on your own.  But I will nonetheless let you know the result:

"The trial court sustained Touchstone’s demurrer to the complaint on the basis that Sheridan failed to exhaust her administrative remedies by filing a claim with the Labor Commissioner. The sole issue on appeal is whether Sheridan was required to exhaust her administrative remedies under sections 98.7 and 6312. We conclude that she was not required to do so and therefore reverse."

Victory for a desperate housewife.  Or at least an actress who plays one.

Friday, October 16, 2015

In Re Andrae A. (Cal. Ct. App. - Oct. 15, 2015)

"Andrae (born Nov. 1996) was detained from his mother by the Department of Children and Family Services (DCFS) in December 2007, when he was 11 years old. Andrae was adjudicated a dependent of the juvenile court in April 2008 . . . . In March 2009, the juvenile court terminated his mother’s reunification services and ordered Andrae placed in long-term foster care.

In December 2009, a supplemental petition was filed alleging that Andrae’s current caregiver had requested his removal from her home. An accompanying report said that Andrae, then age 13, had engaged in anal and oral sex with the caregiver’s nineyear-old daughter. Andrae subsequently admitted having been sexually abused by an older cousin when he was nine years old, and having sexually abused several younger relatives. Andrae was arrested under Penal Code sections 288, subdivision (a), and 261.5, subdivision (c). He was placed in a new foster placement under dual supervision by DCFS and the probation department. . . .

In April 2014, Andrae, then 17 years old, was located in Phoenix, Arizona, where he had been arrested for trespassing. Prior to his arrest, he had been living with his girlfriend and their twin sons; his girlfriend was four months pregnant with their third child. Andrae was extradited to California in connection with an outstanding arrest warrant."


Thursday, October 15, 2015

U.S. v. Mobley (9th Cir. - Oct. 15, 2015)

Lest one think that the risks attendant to being an ATF agent typically involve only the risk of paper cuts as one shuffles through weapon registration forms:

"Mobley’s older cousin, Otis, arranged to sell a grenade launcher for $1,000 to an acquaintance named Aaron McGrew. Otis and McGrew agreed to meet mid-afternoon in the parking lot of a Chevy’s restaurant. Otis drove to the meeting site accompanied by Mobley and Hutcherson. None of them knew that McGrew was working as an informant, so they did not suspect that one of the men accompanying McGrew—Agent Palmer—was actually an undercover agent. Agent Palmer planned to buy the grenade launcher using $1,000 in ATF funds, which he brought with him to the deal.

When Otis, Mobley, and Hutcherson pulled into the parking lot, McGrew and Agent Palmer were already there, parked in a four-door car being driven by Agent Palmer. Another informant who joined them, Dwight Bullard, was standing outside the car. McGrew got out of the car and greeted Otis. McGrew then got back into the front passenger seat of Agent Palmer’s car, while Mobley and Hutcherson got into the back seat, with Mobley sitting behind McGrew and Hutcherson sitting behind Agent Palmer. Otis and Bullard stood outside the car nearby. . . .

After the parties exchanged introductions, Mobley removed an object concealed under a coat he was carrying, which McGrew and Agent Palmer expected to be the promised grenade launcher. Instead, it was a loaded TEC-9 handgun. Mobley suddenly lunged forward over the center console, chambered a round, and pointed the gun at Agent Palmer’s head and chest, which caused Agent Palmer to grab the gun and attempt to direct the barrel away from him. Hutcherson then drew his own gun and aimed it at Palmer’s head. McGrew, sensing that a bad situation was about to get worse, jumped out of the car and took off running. Agent Palmer and Mobley engaged in a brief struggle for control of Mobley’s gun, which Agent Palmer lost. While holding Agent Palmer at gunpoint, Mobley or Hutcherson shouted, “Where’s the money at?” Mobley demanded, twice, that Agent Palmer empty out his pockets. At that point, Bullard reached through the open front passenger door and grabbed Mobley’s gun, pulling the barrel away from Agent Palmer. As Bullard and Mobley fought for control of the weapon, Mobley tried to fire it several times, but Bullard managed to thwart those attempts byplacing his thumb behind the trigger. Bullard eventually succeeded in disarming Mobley, and Agent Palmer’s cover team of plainclothes officers rushed in at about the same time. They arrested Mobley on the spot and shot the still-armed Hutcherson as he attempted to flee. Officers arrested Otis a short time later in a nearby field."

That's a fair piece more danger than I'll ever face in my job, hopefully.  Unlike Agent Palmer, I've never had to respond to my spouse's entreaty "How was work today, honey?" by saying "Not bad.  Could have been worse.  Was almost shot and killed."

People v. Goolsby (Cal. Supreme Ct. - Oct. 15, 2015)

I thought that this case was a difficult one.  The California Supreme Court had a slightly different take, and unanimously reverses and remands.

That said, the really hard part remains whether the Double Jeopardy Clause bars a retrial.  And the California Supreme Court seems to agree with me that that one ain't at all clear.  It doesn't decide the issue.  Remanding for the Court of Appeal to decide the matter in the first instance.

And that's the toughie.

Wednesday, October 14, 2015

In Re Schwartz-Tallard (9th Cir. - Oct. 14, 2015)

It's an 11-member en banc panel.  It's a straightforward statutory interpretation question:  When the statute entitles you to attorney's fees because a creditor has violated the automatic stay in bankruptcy, are you merely entitled to fees incurred in fighting the stay, or for fees incurred in obtaining damages that resulted from the violation of the stay as well?

Eight members of the panel say that the answer is clearly "Yes".  The text of the statute is clear.  The purpose of the statute is clear.  You get to recover all your fees.

Two members of the panel (Judges Bea and O'Scannlain) agree that the text of the statute is clear, so (in a classic move by textualists) don't want to say anything about the statutory purpose.  You get to recover all your fees.

That leaves one member of the panel.  Judge Ikuta.  Who dissents.  She agrees that the text of the statute is clear.  But she (alone) thinks that it means that you don't get to recover all your fees.

When there's a ten to one vote in an en banc case, especially when (as here) it's a low-profile one that's not inherently political, the typical reason for the sole dissenting vote is that the dissenter was on the panel whose decision is being vacated by the en banc court.  So I looked.

Nope.  Judge Ikuta wasn't on the panel.  Indeed, none of the judges on the panel were drawn for the en banc court.

So that doesn't explain it.

Aha!  But the en banc court decided to overrule circuit precedent from 2010.  Judge Ikuta was on the court back then.  Perhaps she was on that panel, and doesn't like her prior opinion overruled.

So I looked.

Nope.  She wasn't on that panel either.  And, interestingly, Judges Hawkins, Berzon, and Clifton were on the panel of that now-overruled precedent, but none of them were drawn for the present en banc court either.

So we're left with a simple explanation.  It's not a prior decision.  She simply disagrees with every single one of her colleagues on the en banc court.

On the one hand, I kind of appreciate a dissent in this context.  When the outcome is preordained, and you're the sole outlier in an 11-member panel, I'm sure it's easy -- or at least easier -- to go along with the uniform consensus of everyone else on the panel.  Especially (again, as here) in a low-profile case in which your ire isn't up, and especially when (as Judge Ikuta says in her dissent) you believe that the interpretation of the statute adopted by the majority achieves a better policy result than the one you think the text actually articulates.  It'd be super easy to simply join with the majority.  So, on one level, my hat's off to Judge Ikuta for dissenting notwithstanding the more difficult path that the futile articulation of her position requires.

But, on the other hand, you've got to reflect at least a tiny bit when you're the only person on an 11-member panel -- one composed of very smart people -- that thinks a statute clearly says X, when to a person everyone else says that the statute clearly says Y.  You can't get a much starker conflict than that, right?  You've got to think a little bit, don't you, that you might well be wrong when every other person to think about the topic thinks that the answer is clearly different than the one that you think is crystal clear, no?  You'd think that might give one a little pause.  And, if you often ended up on the bottom of similar 10-1 votes, that might be even more reason to reflect upon your decision making, right?

None of which says that Judge Ikuta shouldn't have dissented.  If that's the way she views the thing, so be it.  Say what you feel's right.

But it might be a good occasion to at least pause for a second and wonder what everyone else, of all political stripes, seems to see that you do not.

Tuesday, October 13, 2015

Stanislaus Food Products v. USS Posco Industries (9th Cir. - Oct. 13, 2015)

You remember Matsushita from law school, right?  It's the case that notably said that the evidence of an antitrust conspiracy need to be "plausible" in order to survive summary judgment, and that a court must determine on such a motion whether or not there's an alternative ("innocent") explanation for the market activity at issue in the lawsuit.

Here's a perfect contemporary example of how Matsushita is applied.  Judge McKeown holds that there's no plausible evidence of an antitrust conspiracy because, on the facts of this particular case, the participation of U.S. Steel in this alleged conspiracy would make no sense.

It's a straight-up application of Matsushita.  A perfect example for law students and lawyers alike.

Monday, October 12, 2015

Navarrette v. Meyer (Cal. Ct. App. - June 22, 2015)

It's Columbus Day today.  Or Aboriginal People's Day.  Or whatever.  It's a holiday.  So no published opinions to discuss.

But we can still learn something.  For example:

When you're riding in a car with someone, don't encourage them to go 81 m.p.h. on a residential street with a speed limit of 25 m.p.h.  Sure, it'll be "cool", and perhaps they'll do it to impress you.  Maybe the car will even do some "neat" stuff like fly over hills on the road and "get air."

But when the driver loses control of the vehicle, and strikes a father putting his child into a car seat, severing his legs and killing him, guess what?  You may well be liable.  Even though it was the driver who actually agreed to drive so fast.  You may have tortiously aided and abetted him by encouraging him to engage in an exhibition of speed.

So holds the Court of Appeal.  Reversing the grant of summary judgment below.

Thursday, October 08, 2015

People v. Garcia (Cal. Ct. App. - Oct. 5, 2015)

When two people come toward you as you enter your car, one of whom lifts his shirt, points a gun at you, and excitedly says “Get off the truck. Give me the keys. Give me your purse. Give me the keys," my strong suggestion is to do so.  No truck (or purse) is worth your life.

But Ms. Mendiola thought differently.  She thought the defendant was bluffing.  Even when he said:  "I'm going to shoot you. I'm going to shoot you."  To which Ms. Mendiola responded, in words that (quite frankly) surprised even me, "Well, shoot me."

Now, as it turns out, there was apparently some reason for Ms. Mendiola to believe that the man with the gun would not, in fact, shoot her.  Because his response was not to promptly shoot her.

Instead, he turned to the woman next to him and asked, "Do I shoot her?"

At which point the woman said "Yes."

So he did.

In the mouth, no less.

It actually didn't turn out as bad as it easily could, since Ms. Mendiola didn't die; indeed, she didn't even initially think she'd been shot (despite being shot in the face!), and drove to meet her husband at a nearby location.  But eventually the sheer volume of blood, which she initially thought was saliva, streaming from her mouth convinced her that an ambulance was her best call.

The male defendant, Andrew Garcia, was 15 at the time of the offense.  He was sentenced to 35 years to life.  Which was reduced (by concession) to 32 years to life in the Court of Appeal.

That's still a lot of time, and Mr. Garcia contends it's cruel and unusual.  But pursuant to Section 3051, Mr. Garcia is categorically eligible for parole (notwithstanding his sentence) after spending 25 years in prison.

So the Court of Appeal affirms.

No joy for Mr. Garcia.  No joy for Ms. Mendiola, either.

But next time, don't say "Well, shoot me."  Seriously.  Because a guy that's too scared to shoot you might also be so stupid that he'll instead ask the woman next to him whether he should shoot, and she might well say yes.

Wednesday, October 07, 2015

Glick v. Edwards (9th Cir. - Oct. 7, 2015)

I was originally going to give Judge Bea a "Right on!" for this opinion.  But the more I think about it, the more I'm starting to become convinced that I shouldn't even give him a high five.

Before I discuss the opinion, let me give you my internal hypothetical that I think changed my mind:

Imagine that all of the district court judges in Montana are driving back to their hotel room in a car while attending, say, a Ninth Circuit conference in Missoula.  (You might be thinking that that's an awfully big car, a minivan will work just fine, since there's only six of 'em.)  Judge Molloy is driving, and the other five judges start making a huge ruckus, toying around and throwing things.  As a result, Judge Molloy is distracted, and accidentally runs a red light, and hits a car driven by Abe Loracs, a California resident on vacation in Montana, seriously injuring him.

Mr. Loracs subsequently sues both the driver (for running the red light) and the passengers (for distracting the driver), and since there's complete diversity, the lawsuit ends up in federal court.

The case then gets assigned to Judge Molloy.  Who refuses to recuse himself.

Mr. Loracs goes ballistic.  "What the hell?!  Surely Judge Malloy has to recuse himself from hearing a lawsuit against him!"  So Mr. Loracs appeals to the Ninth Circuit.

But the Ninth Circuit affirms.  Holding that pursuant to the "law of necessity," Judge Molloy doesn't have to recuse himself, since all of the district court judges in Montana were defendants and hence "when all are disqualified, none are disqualified."  Moreover, adding insult to injury, Mr. Loracs can barely contain himself as he reads the first paragraph of the Ninth Circuit's opinion, which says:  "An old fable tells tale of a Pope, who, convinced of his own grave sin, called on his cardinals to judge him. “No, Your Holiness!” they replied. “We cannot sit in judgment over you. You must be your own judge.” And so, faced with the necessity his soul be judged, the Pope judged himself. He confessed his sin and abdicated the Holy See. He is now commemorated as a saint."

Crazy, right?

Not as crazy as you might think, apparently.

Sure, Judge Bea's opinion holds, we could solve this problem, if we felt like it.   "It may well have been possible to find an unconflicted Article III judge somewhere in the country who could hear [this] case, perhaps by transferring the case to a different district or assigning a judge from another district to sit by designation."  But it we don't feel like doing that, we don't have to.  Judge Molloy can indeed hear a lawsuit in which he's directly named as a defendant.

And those quotes are from today's actual opinion, not just a hypothetical.

I'll be the first to admit that, as I said, when I first read Judge Bea's opinion, it didn't strike me as crazy at all.  Indeed, it seemed entirely reasonable.  In large part, I think, because the underlying lawsuit here is a crazy one litigated in pro per.  Ron Glick thinks that a large portion of the world is out to get him, and so names a plethora of defendants, including every federal district court judge in Montana, as a defendant, alleging that they're part of the conspiracy.  Faced with such a claim, I'm in a great deal of sympathy with Judge Bea's concept that we're not required to move heaven and earth in response to such absurd allegations.  One dude in the alleged worldwide conspiracy can indeed go ahead and promptly dismiss it.

But the holding of Judge Bea's opinion is broader than that.  And would mean that, even in the case I've hypothesized, Judge Molloy can still properly preside over the action.

That simply can't be right.

(I'm not going to discuss in detail Judge Bea's additional trick that says that Mr. Glick accidentally sued "all" district court judges in Montana, including future ones sitting by assignment.  But I'll add that, among other things, this seems an implausible reading of the complaint, since Mr. Glick hardly thinks that the existing worldwide conspiracy would necessarily include any judge subsequently designated by assignment, regardless of identity.)

What I think is really driving Judge Bea's opinion is the same thing I've identified:  that the present case is simply frivolous.  In my view, that fact, combined with the rule of necessity, makes it entirely proper to let Judge Molloy continue to preside over the case despite being named as a defendant.

But Judge Bea's opinion expressly refuses to rely on such a distinction, saying:  "We need not now decide whether § 455(b)(5)(i) excepts, for example, a situation in which a plaintiff’s claims against the presiding judge are facially improper or frivolous."  Indeed, to be even clearer, Judge Bea says expressly that his articulated rule is a categorical one:  "The rule of necessity thus permits a district judge to hear a case in which he is named as a defendant where a litigant sues all the judges of the district."

Which means that Judge Molloy also gets to preside over the lawsuit against him in my hypothetical.

And that's wrong.

So, in the end, I think the right rule is a recusal exception (at least in the present context) for "necessity plus frivolousness," not merely "necessity".  Because, in my mind, for a non-frivolous complaint against all six judges of the Montana federal district court, yeah, definitely, you've got to bring someone in from the outside.

Beyond a shadow of doubt.