Friday, April 24, 2015

Sefton v. Sefton (Cal. Ct. App. - April 24, 2015)

I never took Trusts & Estates.  And because I never studied for the bar exam, I never actually learned the stuff either.

But I've picked up bits and pieces of this area over the subsequent decades by reading the California appellate cases and through various work.  The same may be true for other people as well.

I nonetheless concede that the following hypothetical would have completely stumped me until today:

Grandfather writes a will that creates a testamentary trust in favor of his son ("Father").  The trust says that upon Father's death, the trust terminates and its assets get distributed.  The trust also says that Father gets a big say as to how those assets get distributed, stating that "[t]hree quarters (3/4) [of the Trust estate] shall be distributed to [Father's] then living issue as [Father] shall by his Last Will and Testament appoint, and in default of appointment, to his then living issue on the principle of representation."

My nonlegal mind reads that as saying that the bulk of the trust goes to whomever Father lists in his will, and if there's no such will, then an equal share goes to each of Father's kids (or at least that's the way it works if they're all still alive).

Okay so far?

So, under this hypo, Father then has three kids:  Son 1, Son 2, and Daughter.  Son 1 doesn't have any kids, Son 2 has three kids, and Daughter has one kid.

Father writes a will that says that (1) Son 2 and his kids get 2/3 of the Trust, (2) Daughter and her kid get 1/3 of the Trust, and (3) Son 1 gets $25,000 (not from the Trust, but from other assets).

Don't be thinking this is generous to Son 1.  Yeah, he gets $25,000.  But Son 2 and his kids got $37.8 million, and Daughter and her kid got almost $18.8 million.

Apparently what Son 1 got is called a "testamentary snub".  In common parlance, a "F**k You."

Son 1 sues.  (Or, more accurately, files a petition in probate.)

What does Son 1 receive?

(A)  Nothing.
(B) $25,000.
(C) $565,350.
(D) $18.8 million.
(E) It depends on when Grandfather's will was written.


Were I to have attempted to answer this question yesterday, my answer would have been a total guess.

The trial court thought that the answer was (B).  But then the Court of Appeal reversed and remanded.  At which point the trial court, following the Court of Appeal's instructions, thought that the answer was (C).  But the Court of Appeal reversed again.  Admitting that its prior instructions were -- and this is a nice way of putting it -- "ambiguous".  Holding that the right answer in the present case is (D).

Though, truthfully, the correct answer to my hypothetical is (E).  The common law says -- at least according to today's opinion -- that the answer is (D), since Father was empowered to split the Trust as he saw fit but was not capable of excluding someone entirely, and since that's what he did, Son 1 gets the default apportionment, one-third.  But in 1970, California passed a statute that changed the law, so that the answer would now be (B).  That statute, however, postdated Grandfather's will, so the answer remains (D).

The theory, I take it, is that the law presumes that Grandfather loved -- or thought he'd love -- all his grandkids, but wanted Father to be able to tinker with the allocations (based on need, etc.) if Father felt like it, but didn't want Father to be able to totally screw one of the grandkids.  So even though Father here didn't like (or want to give money to) the childless Son 1, Son 1 nonetheless gets his nearly $20 million.

So now you know.  As do I.  At least if I've gotten the facts and law right.

As my daughter would say:  "Rich people's problems."  But a problem for courts and lawyers as well.

A problem that it took multiple rounds in the trial court, and two in the Court of Appeal, to solve.

Thursday, April 23, 2015

Stennett v. Britel (Cal. Ct. App. - April 23, 2015)

Anime Britel was a world-class triathelete.  In 1999, he met Jackie Stennett while they were both at the Harvard Business School, and they had a romantic relationship.  Jackie got pregnant.

Fast forward to 2011.  Mr. Britel was riding his bike when he was killed in by a drunk driver who was texting on her phone.  He was 41.

He also had no will.

Under the usual California intestacy laws, Mr. Britel's mother -- his only surviving relative -- would get everything.  But Ms. Stennett files a petition that claims that Mr. Britel's estate should go to her daughter, A.S.

A.S. is, indeed, Mr. Britel's biological daughter as well.  She was born as a result of Mr. Britel and Ms. Stennett's relationship in 1999.

California's intestacy rules provide that A.S. qualifies as Mr. Britel's heir so long as he "openly held out the child as his own."  See whether you think the following facts make such a case:

"In the fall of 1999, Amine and Jackie met at Harvard Business School and developed a romantic relationship. In the early summer of 2000, they graduated. Jackie went to work in Atlanta, Georgia, while Amine moved to Newport Beach, California.

In August 2000, Jackie phoned Amine and told him she was pregnant. The next day, Amine sent Jackie an e-mail message saying he was “devastated,” he would never be able to share the news with his parents, and that having a child out of wedlock was contrary to his Muslim religion and his culture and would bring him “a total shame [he would] have to bear for the rest of [his] life.” Amine continued: “Please understand that I do love you but I am just not ready to be a father right now. I want us to have a child through a legitimate marriage and not outside of wedlock. We need to live together, learn about each other, and then make a committment [sic] for life. I perceive marriage as a very serious engagement. I was devastated for the past two years as a result of a bad marriage. In all fairness, I believe I should be a part of this decision. [¶] It is important for us to meet to discuss this issue as soon as possible and find a suitable arrangement for both of us.”

Later that month or possibly in early September, Jackie visited Amine in California for three or four days. She had initially planned to stay around a week, but the trip was cut short and she returned to Atlanta. Within the next few days, Amine and Jackie spoke by phone between five to 10 times. The end result was that Amine told Jackie not to contact him again and that he did not want her or the baby to be in touch with him or his family.

Amine told his best friend, Youssef Choukri, that Jackie said she was pregnant with his baby, and that his having a child out of wedlock would bring shame to his family (who were highly regarded in Morocco) and might possibly cause Amine to be disinherited. Amine initially told Choukri he was not sure whether Jackie was really pregnant, but that he had told Jackie that if she was indeed pregnant, he would like her to have an abortion.

In late 2000 or early 2001, Amine told Choukri that Jackie had had an abortion. Amine and Choukri never discussed the matter again.

At trial, Jackie testified she never told Amine she had had an abortion.  [The trial court found that Jackie's testimony was "not convincing".]

A.S. was born to Jackie in February 2001. Amine is not listed as the father on A.S.’s birth certificate. Prior to Amine’s death, Jackie never sought a paternity order to determine whether Amine was A.S.’s father. Amine never provided any financial support to A.S., never met her, and never communicated with her.

For many years, Jackie comported with Amine’s request that she not contact him. Then, in November 2006, Jackie sent Amine an e-mail message, which stated in part, “Per your last request I have kept my distance from you for the past six years.” Jackie’s e-mail message informed Amine that A.S. wanted a relationship with him.

Amine did not respond to Jackie’s e-mail message, so Jackie phoned him. In the phone call, Jackie told Amine that A.S. asked about him and wanted him in her life. Amine was “terse and cold,” asked Jackie not to phone him again, and made it clear he wanted nothing to do with Jackie or A.S. This phone call and Jackie’s e-mail message were the only communications between Jackie and Amine from the time A.S. was born until Amine’s death.

Amine was close with his family members, but never told them he had a child."

Those are the facts.  Does you think they qualify as Mr. Britel holding A.S. out as his child?

I didn't think so.  It's not even close.

The Court of Appeal agrees.

Now, I must say, there exists some precedent for an opposite conclusion.  One might hold -- as perhaps a case or two in California have done in dicta -- that "openly" holding out a child as your own simply means admitting paternity.  To anyone.  In which case a concession to the mother might even qualify.

But I think the Court of Appeal is right.  That's not what the Legislature intended.  Or said.

I will also say that I think that Ms. Stennett does have a decent argument on an ancillary point.  Mr. Britel had a child.  Whether he wanted one or not.  As a (biological) father, he's bound to support that child (if he can).  So he'd normally be liable for child support.  Paternity creates that obligation.

But -- in something I didn't know until today (not being a family law practitioner) -- California says that you can only require child support if you file while the parent is still living.  Ms. Stennett didn't seek a declaration of paternity until Mr. Britel was dead.  So under California law, the kid doesn't get anything.  No support.  No inheritance.  Nothing.

Ms. Stennett says that's irrational.  To be honest, I kinda agree.  Why does getting killed relieve you of the obligation to support your child?

I get that in the old days, we might not have wanted posthumous child support filings because we'd want the father to be able to defend himself, and say (if true) that he wasn't the parent, which is hard when you're dead.  But in the modern DNA era, this rationale seems largely irrelevant.  We know (to a 99.9996 probability) that A.S. is Mr. Britel's child.  That'd be more than enough to require child support -- regardless of Mr. Britel's testimony -- if he were alive.  Isn't it irrational to require the filing of a child support claim while the father's still alive?  Isn't that (ancient) requirement so crazy as to be a denial of equal protection?

The Court of Appeal rejects this contention as well.  It says there's a public interest in making sure that the estate gets distributed how the guy wants.  So it makes sense to require that any child support claim be filed while the dude's still alive, rather than once he's dead.

Hmmm.  I'm not so sure.

Seems to me that the whole point of child support is to support the kid.  Regardless of your interests or desires with respect to property distribution.

So where's the underlying public policy?  Why does the "during your lifetime" requirement make sense?  (At least in the face of -- as here -- essentially indisputable DNA evidence.)

Doesn't it also seem like the Court of Appeal's view has some pretty harsh consequences.  Imagine that a kid gets born on April 1 and the biological father gets killed by a drunk driver on the way to the hospital.  No child support then either, since no petition was filed during the guy's lifetime?  Really?

There's a psychological aspect to all of this.  As I first started reading the opinion, I definitely found myself agreeing with the Court of Appeal that this was an open-and-shut case, and that A.S. had not been "openly" acknowledged as Mr. Britel's child.  That sentiment, I think, even bled over to the part of the opinion that discussed the potential Equal Protection problem.

But the more I thought about it, the more I thought that Ms. Stennett had a point.  Why do we have the rule we have?  Does it really make sense?

Seems to me we'd want the kid to be cared for.  Regardless of what the mother did or when he elected to do it.

P.S. - Justice Fybel's concurring opinion agrees with a lot of this sentiment, and encourages the Legislature to change the law.  Makes sense to me.  But I wonder if equal protection doesn't require the same outcome in the present case as well.  Even without legislative action.

P.P.S. - It occurred to me overnight that all this may really be an equal protection argument about the child support rules, not the intestacy rules.  Still; an interesting issue, and one that I (like Justice Fybel) garners additional attention.

People v. Brothers (Cal. Ct. App. - April 21, 2015)

For those who believe child molesters deserve to die, I wonder what the reaction is to this fact pattern:

"Early in the morning of December 5, 2005 Brothers learned information that caused her to believe Gates had sexually molested Mimi and John. Brothers immediately summoned Gates to the main house to interrogate him about the alleged sexual abuse. She also asked Sidney to get Robinson from across the street. Within a few minutes of Robinson’s arrival, Brothers’s boyfriend, Sam Persons, also arrived at the house with his adult nephew, Christopher Yancy. According to the prosecution, Gates denied molesting the children but Brothers did not believe him. She beat Gates, striking him in the head and face multiple times with a broomstick with such force the stick broke in half. Then, Persons, Yancy and Brothers tied Gates up and moved him to the garage where they continued to beat him about the face and body and burn him with cigarettes. One of the men shoved a large cloth gag down Gates’s throat, causing him to suffocate. Los Angeles County Deputy Coroner Dr. Paul Gliniecki, who performed the autopsy on Gates, opined Gates had died of asphyxiation due to airway obstruction and other contributing factors, including blunt force trauma. After the beating, Brothers returned to the main house and told Robinson, “It’s over.” Gates’s body was found the next day on the side of the freeway. His hands were bound, and his body was covered by a plastic tarp that had been set on fire."

Assume for a moment that Ms. Brothers was right about the molestation.  Justice?  Just result, but unjust process?

Ms. Brothers was initially convicted of first degree murder, but the Court of Appeal reversed this conviction based on erroneous instructions.  The second jury convicted her only of voluntary manslaughter.

The Court of Appeal affirms.

Wednesday, April 22, 2015

U.S. v. Bonds (9th Cir. - April 22, 2015)

Barry Bonds wins again.

He lost in the district court, which was fine with his conviction after a jury trial for obstruction of justice.  He lost unanimously in panel opinion in the Ninth Circuit, which affirmed this conviction.

But remember.  Barry Bonds is a slugger.  He may strike out a lot.  But when he hits the ball, it goes long.  Way long.

This afternoon, he does exactly that.  His conviction is overturned by the en banc court.  10-1.  A crush.  With only Judge Rawlinson dissenting.

Mr. Bonds was helped by the draw.  There were three Ninth Circuit judges on his panel.  None of 'em got chosen for the en banc panel.

But even if the composition were different, this one wasn't close.

It's no procedural victory, either.  The reversal is for insufficient evidence.  Which means that Mr. Bonds gets off entirely.  No retrial.  Nothing.  He's good to go.

There's a lot of debate internally over exactly why the evidence against Mr. Bonds is insufficient.  A debate that makes some unusual bedfellows.  Judge Kozinski writes one opinion.  Joined by Judges O'Scannlain, Graber, Callahan, and Nguyen.  (I doubt you'll see that exact composition ever again in your lifetime.)  Judge Randy Smith writes another opinion.  Joined by Judges Wardlaw, Callahan, and Friedland.

Then Judge Reinhardt writes an opinion.  Agreeing a little with Judge Kozinski (but disagreeing a little bit as well), and ditto for Judge Smith.  And Judge Fletcher writes his own opinion as well.

Then you've got Judge Rawlinson's baseball-themed dissent.

Lots to mull over.

The net result of all of this is that Barry Bonds goes free.  The other result is a victory for giving totally nonresponsive answers, even under penalty of perjury.  If you can get away with it -- if the lawyer on the other side doesn't force you to answer the question -- you're not guilty of obstruction of justice.

It's instead the American way.

P.S. - In case you're interested, here's the question and -- totally irrelevant -- answer at issue in the case:

Q: Did Greg[, your trainer,] ever give you anything that required a syringe to inject yourself with?

A: I’ve only had one doctor touch me. And that’s my only personal doctor. Greg, like I said, we don’t get into each others’ personal lives. We’re friends, but I don’t -- we don’t sit around and talk baseball, because he knows I don’t want -- don’t come to my house talking baseball. If you want to come to my house and talk about fishing, some other stuff, we’ll be good friends. You come around talking about baseball, you go on. I don’t talk about his business. You know what I mean?

Q: Right.

A: That’s what keeps our friendship. You know, I am sorry, but that -- you know, that -- I was a celebrity child, not just in baseball by my own instincts. I became a celebrity child with a famous father. I just don’t get into other people’s business because of my father’s situation, you see.

U.S. v. Alvarez-Ulloa (9th Cir. - April 21, 2015)

I'm confident that readers of this blog are not surprised when they're struck from a jury panel.  Not surprised, and in many cases, not bummed about it either.

But if you want to get an articulation of why you might be struck, here's a good example.

From the perspective of the prosecutor:

"Panelist 29 was struck, according to the government, because she was a third-year law student and had previously worked for a criminal defense firm. The government contended that this background was 'indicative of somebody who would be less trusting of the government in immigration prosecution.'"

From the perspective of the court (in this case, Judge Wake in Arizona):

"I find that both articulated grounds are facially neutral. She’s two years out of law school. She’s worked in law offices. . . . I’ve never been able to get on a jury my whole life. Nobody would let me on because I was a lawyer. And I didn’t take it personally. But that’s accepted wisdom of not having someone on the jury who may be in a position to, A, second guess you and, B, carry perhaps special influence into the deliberations of the jury because of the legal training. And her involvement in immigration criminal defense certainly suggests a special interest and sensitivity that, for purposes of a peremptory challenge, is facially neutral."

One the upside, you're a lawyer who's been to law school.  On the downside, lots of people won't let you sit on a jury.

Or is that another upside?

U.S. v. Walls (9th Cir. - April 21, 2015)

Perhaps if you're into the services of online prostitutes, you already know the various places (beyond Craigslist) in which such things are found.

But if not, Judge Bea's opinion informs you of at least one more:  (Definitely NSFW)

Tuesday, April 21, 2015

County of LA v. Financial Cas. & Surety (Cal. Ct. App. - April 21, 2015)

You can rely on what the Clerk tells you.

Plaintiff has a hearing set for 9:00 a.m. on February 22 in Department J.  Defendant doesn't oppose the motion.  Counsel for plaintiff says that he checked in with the Clerk, and then showed up again at "approximately" 9:00 a.m. (my emphasis), at which point he says that the clerk told him that the court had granted his motion.  So he left.

In fact, it's undisputed that the court hadn't granted -- indeed, hadn't even yet heard -- the motion.  So when that motion was in fact called a little after 9:00 a.m., and the moving party wasn't there, the motion was taken off calendar.  Ergo denied.

At which point plaintiff files a CCP 473 motion for relief.  Claiming excusable neglect.

The Court of Appeal agrees.

Justice Ashmann-Gerst says that relying on what the clerk tells you is reasonable.  Moreover, she also carefully parses the clerk's purported "denial" of what the plaintiff's attorney said transpired.

The clerk for Department J submitted a declaration that says that it wasn't her "habit or practice" to tell attorneys that their motion had been granted.  Which I'm certain is true.

But Justice Ashmann-Gerst notes that nowhere in the declaration did the clerk deny that that's what she did here.  That's a pretty big omission.

So either the clerk was being crafty -- but the Court of Appeal caught it -- or her declaration did not contain the part that was exceptionally relevant: namely, whether what plaintiff's attorney said was true or not.  My sense is that a simple "No, it's not true, I don't do that," would have sufficed.

One tiny point.  The Court of Appeal says that plaintiff's counsel was "Mathew J. Singer".  There's no attorney in California by that name.  Looks to me like the guy is actually Matthew J. Singer.  Two t's.

Personally, once I saw that my motion was listed on the calendar, I'd hang for the half-hour or so it'd take for my unopposed motion to be called and formally granted.  Regardless of what the clerk told me.

But if you do otherwise, the Court of Appeal will apparently have your back.

Parsons v. Ryan (9th Cir. - April 21, 2015)

Here's a neat twist.

A Ninth Circuit panel affirms the district court's certification of a class.  Judge Reinhardt writes the opinion.  The class consists of prisoners in Arizona.

The losing party then files a petition for rehearing en banc.  It starts to get some traction with some of the more conservative members of the Ninth Circuit.

But then the parties settle the case.

So now the Ninth Circuit can't reverse the panel's decision, since the case is now moot.

The unhappy judges on the Ninth nonetheless dissent from the denial of en banc review, in an opinion by Judge Ikuta.  They recognize that the case is moot, but say that the case should be taken en banc so the panel opinion can simply be vacated.  From their perspective, that'll work.  Then there's no more bad precedent.

But this opinion only gets six votes.  So it loses.

Doctrinally, I'm also not entirely sure that Judge Ikuta is right.  The Supreme Court has said that you don't vacate a district court opinion after the parties settle -- even though the case is technically moot -- because the losing party participated in making the case moot (i.e., the settlement) so vacatur is not an appropriate remedy.  That same reasoning seems applicable to decisions one level up; e.g., panel decisions in the Ninth Circuit.  So vacatur (e.g., pursuant to en banc review) would be inappropriate.

I can see a contrary argument based on the fact that appellate decisions (unlike district court opinions) entail precedent, so there's a public policy argument on the other side.  Maybe that's enough.  Though I can see contrary argument public policy arguments on the other side as well.

Justice Ikuta's opinion unfortunately doesn't address this point.  The only thing she says (in a footnote) is that "Although we can no longer use en banc review to correct the errors in the opinion because the case became moot before the mandate had issued, we can vacate the decision to avoid having the panel’s serious misinterpretations of Supreme Court Eighth Amendment and class action jurisprudence become the law of our circuit."  For which she cites "See United States v. Payton, 593 F.3d 881, 886 (9th Cir. 2010)."

But it seems to me that Payton says exactly the opposite.  It's a case that denied vacatur of a panel Ninth Circuit opinion based on mootness.  Hardly great support for a claim that vacatur of a panel opinion would be appropriate.  Plus, the portion of the opinion that Judge Ikuta cites -- page 886 -- again seems to say the exact opposite of Judge Ikuta's position.  Saying:  "It is true that our refusal to vacate the decision after it has become moot deprives a member of our court of the right to seek sua sponte an en banc rehearing in order to obtain a different decision on the merits (although it leaves open the opportunity to seek an en banc rehearing for the purpose of vacating our decision). We do not minimize that right, but have concluded that it does not overcome the equities we have described and does not justify erasing a decision that the panel issued when the controversy was still live, and that the parties have complied with and are content to let stand."

I agree that language from Payton seems applicable.  But it seems to me to say that even if (as here) en banc review is foreclosed, that doesn't mean that we should allow parties to settle the case (as here) and obtain a vacatur of the panel opinion.  The opposite of what Judge Ikuta seems to be saying.

I forthrightly admit that I'm not a thousand percent sure what the right answer should be with respect to whether Supreme Court precedent about vacating district court opinions in light of mootness should be the same with respect to appellate panel opinions.  But that's definitely an issue that I think Judge Ikuta (and the rest of the dissenters from denial) should have addressed in the opinion.  Beyond merely a cite to a prior Ninth Circuit opinion that, to me, seems to support a contrary view.

Monday, April 20, 2015

U.S. v. Mazzarella (9th Cir. - April 20, 2015)

Judge Gould remands this conviction back to the district court for some additional factfinding.  With a reminder that prosecutors are under an obligation to do justice, not merely to secure convictions.

My guess is that there might be a slight change in the result below after the remand is over.  But that the defendant -- who was changed with classic mortgage scams (straw buyers, inflated income claims, etc.) during the bubble -- would be convicted on retrial anyway.

None of which means we shouldn't get the result right, of course.

But Ms. Mazzarella shouldn't get her hopes up about getting off entirely.

Friday, April 17, 2015

Carlwig v. Carlwig (9th Cir. - April 17, 2015)

I'm confused.

I get that under the relevant child abduction treaty, federal courts sometimes have to wade into family law questions.  So while "Carlwig v. Carlwig" is a typical caption for a state court case, it's presence in the federal reporter isn't so crazy.

But I'm not sure I understand the Ninth Circuit's disposition of that case today.  Which reads, in full:

"Sarah Carlwig appeals the decision and order of the district court sending A.L.C. and E.R.S.C., dual-national American and Swedish children, to Sweden pursuant to the Convention on the Civil Aspects of International Child Abduction (the “Convention”), and its implementing legislation, the International Child Abduction Remedies Act, 22 U.S.C.A. §§ 9001–11. We have jurisdiction under 28 U.S.C. § 1291.

We hereby vacate the portion of the district court’s order, Carlwig v. Carlwig (in re A.L.C.), 16 F. Supp 3d 1075 (C.D. Cal 2014), concerning the habitual residence of E.R.S.C.


My understanding is that federal appellate courts review judgments, not reasons.  The district court ordered the kids sent to Sweden.  The Ninth Circuit doesn't seem to change that judgment.  So I do not understand why (or how) the Ninth Circuit "vacates" a portion of the underlying opinion.

The Ninth Circuit could write its own opinion, of course, in which it said that it affirmed the decision below but resolved the residence of one of the kids the other way.  Or could say that it was affirming but not deciding (because it didn't have to) where one of the kids lived.

But I'm not sure that appellate review encompasses "vacating" portions of an opinion's reasoning below.  I'd have thought (again) that review is of the judgment.

Maybe I'm wrong.

Thursday, April 16, 2015

Medina v. Chappell (9th Cir. - April 16, 2015)

All that work -- which I discussed here -- was for nothing.

"Never mind."

County of Orange v. US Dist. Ct. (9th Cir. - April 16, 2015)

This is a really good opinion by Judge Tallman.

It's a classic Erie issue.  One that Judge Tallman resolves clearly and with a great deal of erudition.  If one of my students wrote it for my civil procedure class, I'd definitely give it an A.  Indeed, I'm thinking about telling my students to read the thing if they want further insight (or clarity) into what you're supposed to be doing in an Erie analysis.  It's that good.

The issue is this:  Federal common law generally provides that predispute waivers of the right to a jury trial are valid so long as they're knowing and voluntary.  By contrast, California law generally holds invalid such predispute waivers.

In a federal diversity suit, which rule applies?  Federal law?  State law?  Something in between?

Judge Tallman answers the question.  Smartly.

I want you to read the entire opinion, so I'll somewhat keep you in suspense about the right answer.

But even an A paper can potentially be improved.  So I thought I'd share the two questions that I'd pose to a student were they to turn in a paper that mimicked Judge Tallman's analysis:

(1)  Judge Tallman grants mandamus relief.  He does so without applying the Bauman factors (prejudice, clear error, etc.) that generally govern such relief, holding that "Bauman does not apply in the extraordinary case where the petitioner claims erroneous deprivation of a jury trial."

Is that really the right rule?

Imagine that a plaintiff demands a jury trial eleven days after it files its complaint, the defendant moves (as here) to strike that demand as untimely, and the district court grants the motion.  So plaintiff's now lost its right to a jury trial.

I find it hard to believe that plaintiff is really entitled to have its displeasure with this ruling heard on a writ of mandamus to the Ninth Circuit.  Yet under Judge Tallman's theory, that seems exactly the rule, since (as he says) "Bauman does not apply in the extraordinary case where the petitioner claims erroneous deprivation of a jury trial."  Which is exactly what plaintiff is claiming.

I would agree that the Bauman factors may often be satisfied when a party is claiming an improper deprivation of a jury trial.  There's irremediable prejudice, etc.  But I don't agree that these factors are immaterial.  Seems to me we still care, for example, whether there's clear error, whether it's an oft-repeated mistake, etc.  Otherwise the routine plaintiff in the 11-day jury trial demand case gets its writ heard.  Which I don't think is either the rule now nor should become the rule.  Otherwise we need to tell the staff attorneys to start getting ready to grant a flood of writ petitions, because lots of cases involve a claim that someone's been improperly denied their right to a jury.

So that's something to ponder.

(2)  Judge Tallman holds that, here, federal common law applies (since it's procedural rule), but in creating that federal common law principle, federal courts should apply the underlying state law when that state rule is more protective than the federal common law constitutional minimum.  So here, federal common law allows waivers as long as they're knowing and voluntary, but since California is more protective of the federal jury trial right, federal courts sitting in diversity should apply the California rule.

That's a neat resolution.  And in the present case, I'm fairly sympatico with it.  I happen to like the California rule, so when Judge Tallman both preserves the federal minimum as well as allows states to go beyond it, I find myself smiling at the ultimate result.

But is that really the right legal principle?

I can think of a lot of areas where, under Erie, federal common law (as here) sets a constitutional minimum, state law might go beyond that, and yet it would seem crazy to me to incorporate state law as a result.  For example, in federal court, there might be a federal constitutional minimum that you're allowed to have an attorney represent you (e.g., under the Sixth Amendment), or to have that attorney meaningfully speak -- say, for two minutes, or three pages -- on your behalf (e.g., under the Due Process Clause).  Say that a state like California passes a law that's more protective of those rights.  That law allows you to be represented by ten lawyers of your choosing simultaneously.  And, given the importance of the underlying dispute, the state says that each of those ten lawyers has a right to file a brief of a maximum length of 100 pages each.

I find it hard to believe that the federal courts should -- much less should be obliged under Erie -- to follow such a rule.  Yet those rules follow the same lines as the present dispute.  They're "procedural" rules, so the federal courts generally get to create and apply their own legal principles.  Yet they're also "substantive" in a way -- the state court cares deeply about the underlying right -- and the relevant federal common law only establishes a "constitutional minimum".  So why doesn't Judge Tallman's theory equally obligate us to follow those (silly) state law procedural rules as well?

I wonder if the better rule is to simply bite the bullet and say that (1) we're allowed to create federal common law here (for the reasons Judge Tallman articulates), and (2) that common law rule is going to be a maximally protective one.  Regardless of what particular state law applies.  Isn't that a better -- i.e., more protective -- principle?  If we're allowed to create our own (good) principle, shouldn't we apply that rule in all cases, not just in ones arising under California law?  Especially since we're not obliged (as Judge Tallman concedes) to follow the latter in any event?

Perhaps we're constrained somewhat by precedent.  But I wonder if that same precedent -- or logic -- is consistent with Judge Tallman's (admittedly creative) result.  Or whether Judge Tallman's approach has a solution to the ten lawyer/lengthy brief hypothetical which seems to raise identical issues to those here.

To reiterate:  Judge Tallman definitely gets an A.

But can we make it an A+ without changing the result?

Wednesday, April 15, 2015

People v. Shivers (Cal. App. Div. - April 15, 2015)

I must admit that I didn't recognize the name "Pauley Perette".  But I am sufficiently marginally connected with reality that I know the face when I see it.  Despite having never seen "NCIS".

Inserting the picture is my attempt to turn this blog into a celebrity rag.  If you're into that sort of thing, you might also like this afternoon's opinion.  Which is all about her and her ex-husband; in particular, her ex-husband's conviction for violating a restraining order though conduct that arose from an unfortunate chance meeting in a restaurant.

Ms. Perette's ex-husband, Francis Shivers, does not come out looking well in the opinion.  For a very different view of the merits -- continuing today's "celebrity gossip" theme -- check this out.

I will say that the one unambiguous message from today's opinion is that if you ever find yourself accidentally near someone who you shouldn't be around, just turn around and walk away.  That's much better than pulling out a cell phone, taking a video, and screaming.

Trust me.

Association of Calif. Ins. Cos. v. Jones (Cal. Ct. App. - April 8, 2015)

These footnotes are big'uns.

I know the statute's long.  But to take one example, the first footnote is three and a half pages long.

And it's not the only multi-page footnote.  Footnote five, for example, takes up two full pages and half of two other pages.

Not especially easy to read.

Tuesday, April 14, 2015

Benetatos v. City of Los Angeles (Cal. Ct. App. - April 14, 2015)

Tam's (No. 6) Restaurant on South Figueroa in Los Angeles doesn't get great publicity in today's opinion from the Court of Appeal.

By contrast, the restaurant gets 3.8 stars on Google Plus, and 3 and a half stars on Yelp.

But maybe that's from customers who also like one-stop service for food, prostitutes, and dope.

Golden State Water Co. v. Casitas Municipal Water Dist. (Cal. Ct. App. - April 14, 2015)

I rarely read appellate opinions with the level of vigor and emphasis that Justice Perren displays in this opinion.  It's almost as though he believes respondents' position even more than they do.

Justice Perren analogizes appellant -- the Golden State Water Company -- to a monopolist and to King George III.  That's never a good sign for your side.  Suffice it to say that Justice Perren is on the side of the voters of the City of Ojai.  Who've decided to use eminent domain to take the water assets of Golden State and to pay for it with Mello-Roos bonds.

The Court of Appeal is fine with that.  And Justice Perren seems affirmatively enthusiastic about it.

Monday, April 13, 2015

County of Los Angeles v. Superior Court (Cal. Ct. App. - April 13, 2015)

It's facially a California Public Records Act case.  One you might otherwise ignore.

But you care.  Deeply.

The Court of Appeal holds that bills -- e.g., invoices -- are protected by the attorney-client privilege in California.

That's different than the federal common law rule.  The Ninth Circuit has held that the amount of the fee (among other things) isn't privileged.  So too have some other states.

Not so in California.  At least as of today.

SOURCE v. County of San Bernardino (Cal. Ct. App. - April 13, 2015)

It's hard to win attorney fee appeals that dispute the amount awarded.  So when the trial court only awards roughly $20,000 in fees, whereas the request was $230,000-plus, the appeal is unlikely to be successful.  There's simply too much discretion underlying the award.

Which is why the appellant here loses.  It's not a surprising result.

Much of Justice McKinster's opinion says exactly what you'd expect it to (rightly) say.  There's only one part of the opinion about which I thought comment might be appropriate.  Since that opinion says something that legions of opinions have previously said as well, and yet, I wonder if the argument is one that actually holds much -- or any -- water.

Here's what the Court of Appeal says in today's opinion:

"The trial court found that the law firm’s expenditure of 246 hours over a period of a year did not deprive it of the ability to take on other fee-generating work. SOURCE dismisses this finding as 'illogical,' in that the law firm would have made substantial fees for 246 hours spent on other, fee-generating work. It did not, however, offer any evidence that it had to turn down other work that it might otherwise have been able to accept in order to devote those 246 hours to this case. Accordingly, it did not show that its income suffered as a result of taking this case on a partial contingency."

In a way, I understand this sentiment.  I'm sure that Justice McKinster is right that the law firm was hardly in the habit of turning down paying work.  I strongly doubt that some client came in and said  "We want to pay you to do some legal work" but the law firm's response was "Oh, sorry, we're just too busy, so we'll have to turn you down:  We've got a case that's taking up a couple of hundred hours of our time already."  So, in one sense, the Court of Appeal is exactly right.

But hours -- and workload -- are nonetheless always fungible at the margin.  Sure, the firm may not have turned down a particular, would-have-paid client.  But it had to staff the case, and those lawyers expected to be paid.  And if they did more work, and put in more hours, they'd expected to be paid more.  Maybe not directly.  It's not like lawyers get overtime.  But the more hours you put in, the higher your salary generally has to be in order to compensate you for the hassle.  Similarly, the more hours a law firm has to work, the more lawyers it needs.

You may not be able to directly tie 246 hours to having to hire another associate.  Or partner, or whatever.  But 246 hours is never "free".  It always displaces something else of value.  Other work.  Other lawyers.  Other things to do.

Plus, what's true in one case is presumably true ad nauseum.  You can't get paid extra for one 246 hour case you took because it didn't "deprive" you of the ability to take on new work.  Similarly, you can't get paid extra for a second 246 hour case because you can't make the same showing there either.  Ditto for the third, fourth, tenth, and hundredth similar case.  So you can take on a thousand 246 hour cases and the Court of Appeal will still say that you can't "show" that this stops you from taking on other work.  Even though obviously it does.  You can't do a thousand 246 hour cases and still do the work you're presently doing.  You've either got to turn down work or hire more lawyers.  That's what you want to get paid extra for.  But that's what the Court of Appeal says you don't get.

So the Court of Appeal's argument here is true as far as it goes.  Almost never will a firm be able to prove that a single case displaced other paying work.  Law firms simply aren't in the habit of turning down work.

But that reality may prove too much.  Since it's always true.  Which would make the underlying factor meaningless.

Work trades off with other work, which trades off with leisure, which trades off with a leaner staff (and lower expenses).  There's no such thing as a free lunch.

Even at the 246-hour level.

In Re A.R. (Cal. Ct. App. - April 9, 2015)

"The initial hearing report recommended that A.R. and his half siblings remain in the home. The report stated: 'While there are significant concerns regarding [father’s] alcohol abuse, domestic violence against [mother], the emotional stability of the mother, and past use of inappropriate discipline, the children appear well-cared for, and state that they feel safe in the home at this time.'”

Seems damning with faint praise to me.

Friday, April 10, 2015

U.S. v. Urrutia-Contreras (9th Cir. - April 10, 2015)

It's not just the defendant who has the right to speak before a federal judge pronounces a criminal sentence.  So does the government.

This is important when, say, the U.S. Attorney might actually agree with the defendant.

The federal judge doesn't necessarily have to agree with what the defendant and/or U.S. Attorney say.

But the rule requires that the judge at least listen.

So the Ninth Circuit reverses and remands.

Thursday, April 09, 2015

Paul v. Patton (Cal. Ct. App. - April 9, 2015)

I'm surprised this is as close as it appears to be.

Guy has four kids with a wife who dies.  Guy remarries.  Guy's got a lot of money, including lots of separate property.  Guy writes a trust that says that Second Wife gets to life in House for the rest of her life and will get all the net income from Store, but everything else gets split up between the four kids when he dies.

Pretty straightforward.

Then things between Guy and Second Wife start to go south.  Guy amends Trust to say that Second Wife no longer gets to stay in House forever, and instead that House will be sold and Second Wife given her marital share (half), plus Second Wife no longer gets all the net income from Store but only $4,000/month.

Pretty straightforward as well.

With one problem.  When Guy's attorney drafted the amendment to the trust, he accidentally wrote the thing (using the term "beneficiaries" in an inapposite way) such that under the amendment, Second Wife also now got a fifth of the entire estate.  Which she never even got when things were good between her and Guy, and which Guy didn't actually intend to do.


Kids and Second Wife then litigate.  Attorney repeatedly says very candidly that there was a scrivener's error and that Guy didn't intend to give Second Wife that extra money.

Ultimately there's a settlement.

Kids then sue Attorney for malpractice in screwing up the amendment to the trust.

Seems like a pretty good claim to me.  But the trial court dismisses the lawsuit on a demurrer.  Holding that Attorney had no duty to Kids.

The Court of Appeal reverses, holding that Attorney may well have had a duty to Kids since they were intended beneficiaries.  To which I'd say:  "Duh!"  To me, if there's ever a case where the Kids should be able to sue, it's this one.  Attorney writes a trust.  Attorney admits that the trust is screwed up and that the intended allocation isn't what's reflected therein.

Sounds like exactly why we have lawsuits.  As well as malpractice insurance.

The Court of Appeal nonetheless thinks the case is a close one.  And there's indeed some real authority on the other side.

But to me, it's a no-brainer.  Of course the kids should be able to sue.  Of course there's a duty.  To leave the kids out in the cold on this one, with no remedy whatsoever, would be absurd.

Admittedly, I feel a little bad about the policy consequences of such a result.  I'm a little worried about incentivizing Attorney to lie in the underlying litigation in order to cover his own butt.  The lawyer here, Santa Cruz lawyer Richard Patton, forthrightly testified in favor of Kids in the underlying suit that Guy didn't intend to benefit Second Wife in the amendment and that to the extent the amended trust did so (which it certainly seems to do), it was a scrivener's error; i.e., his bad.  That's commendable.  It'd have been fairly easy to instead say "Oh, no, he wanted exactly what I put down; we were all very clear on that."  That way Kids would have a much harder time suing him.

But Attorney did the right thing.  And now he gets sued.  Hoisted, in part, on his own petards.

But, in the end, I'm willing to tolerate that.  He's being sued because he (allegedly) screwed up.  Not just because he admitted it.  To hold that there's no duty would be a bigger problem than a rule that admits that there's a duty and that just hopes that we can get the truthful testimony we need to figure out who, if anyone, is liable in a given setting.

In short, Justice Premo's opinion is right.  Perhaps even more than he thinks.

Wednesday, April 08, 2015

People v. Sedillo (Cal. Ct. App. - April 8, 2015)

I was watching an old episode of Mad Men last night in which there was a great line.  January Jones is having trouble with her daughter, who's throwing a tantrum, and calls her ex-husband (John Hamm) at work and opens the call with the line "Do you mind if I strangle your daughter?"

To which he responds:  "Should we be having this conversation over the phone?"


I was reminded of that line when I read this opinion today.  Because, in the real world, Lisa Sedillo was the getaway driver in a gang-related shooting in Long Beach in 1992.  One of the victims was killed, and the actual shooter was convicted of murder.  But even though witnesses identified Ms. Sedillo as the getaway driver from a photo array, none of 'em was able (or willing) to identify her at the live line-up.  So she got off.  Never even charged.

Until 2010.  At which point she admitted her involvement in the 1992 murder over the phone.  A conversation that just so happened to be recorded pursuant to a wiretap of her phone in an unrelated matter.


When you've essentially beat a murder rap, it's perhaps best not to admit your involvement in the murder.  Especially over the phone.

Yet another thing we can learn from Don Draper.

Tuesday, April 07, 2015

People v. Guzman (Cal. Ct. App. - April 2, 2015)

The Court of Appeal says:  "The deputies conducted a patdown search of Guzman and found items commonly used as burglary tools in his pockets, including a flathead screwdriver, a long flashlight, two AA batteries, and work gloves."

I wonder if a patdown search of several of us over a weekend might find similar "burglary tools" in our possession.  Tinkering away in our garage or elsewhere.

Mind you, when the police subsequently searched our vehicles, they likely wouldn't find what they found in Mr. Guzman's car:  "27 pieces of jewelry that had been stolen two or three days earlier from a residence about a mile away."

Still, isn't it interesting how what we might characterize as "stuff we commonly carry to fix things around the house" become "burglary tools" in the hands of others.

Monday, April 06, 2015

Ong v. Fire Insurance Exchange (Cal. Ct. App. - April 3, 2015)

I find myself in the unusual position of agreeing with both the majority opinion as well as the dissent in this case.  Which is not rationally possible, since they reach opposite results.

Maybe that's just another way of saying that I'm on the fence on this one.  Which is unusual for me.

It's a simple, straightforward fact pattern.  There's a homeowner's insurance policy, and it contains an exclusion for "vandalism or malicious mischief."  Plaintiff owns the house, and after his last tenants move out, it's vacant for a while.  During which time a vagrant slept in the house, built a fire (with firewood) on the kitchen floor to keep warm, and the fire got out of control and burned the house down.

Does what the vagrant did constitute "vandalism or malicious mischief?"

Justice Chaney writes the majority opinion and says "No."  She says that "vandalism" is generally defined as meaning the "wilful or malicious destruction or defacement of private property."  Notice that this definition has the same word as in the "malicious mischief" component of the exclusion:  "malicious."  "Malicious" in turn is generally defined as meaning "having or showing a desire to cause harm to someone".  So if the vagrant had intended to burn the house down, that'd clearly be a "malicious" act and uncovered by the exclusion.

But that's clearly not the case here.  The vagrant was just trying to keep warm.  Indeed, there's some real evidence that once the fire started to get out of control, the vagrant tried to stop it by throwing the firewood out the door.  To no avail.

So Justice Chaney says the was no "malicious" act here.  The guy (or gal) just wanted to keep warm.  The destruction of the house was an accident.  Hence there's coverage.

That's a good argument.  It makes sense to me.

But so does the dissent.  Justice Rothschild says that, yeah, maybe the vagrant didn't desire to burn the house down.  But s/he nonetheless started a fire on the kitchen floor.  That was going to clearly harm (e.g., put burn marks) on the floor.  That, she says, counts as "malicious".  When you know that what you're going to do is to partially burn up a kitchen floor, that's covered by the exclusion.  Hence no coverage.

That's a pretty good argument too.

Yet both can't be right.  Or at least both can't be dispositive.  Either the exclusion applies or it doesn't.  So you've got to choose.

It's a tough call.

My intuition is that the doctrine of double effect might help resolve the resulting conflict.  Since the vagrant didn't really "mean" to burn the kitchen floor, even though that was the natural consequence of his or her act -- s/he simply wanted to keep warm.  But applying that doctrine here is complicated, and I haven't entirely worked out the ramifications.  I nonetheless have a sense that this very longstanding philosophical concept might be well-suited to help sort things out here.

The other thing that might tip the scale is ambiguity.  The definition isn't rock solid here.  Reasonable minds might well (indeed, do) differ.  So maybe we resolve the resulting ambiguity against the entity that drafted the policy; i.e., the insurance company.  Hence coverage.

Maybe.  I'm sure that Justice Rothschild would say that the policy is not ambiguous.  It's clear.  The vagrant clearly "intended" to burn the floor, hence the exclusion applies.  She'd likely say that there's no coverage here just like there'd be no coverage if a cold vagrant deliberately burned the entire house down in order to get even more heat from the thing.

And she'd have a point.

In short:  This one's really hard.  Both sides could easily be right.

Though only one can be.

Friday, April 03, 2015

Sedlock v. Baird (Cal. Ct. App. - April 3, 2015)

I like everything about this case.

I like that the City of Encinitas started a yoga program for its schoolkids.  It's good exercise.  It's a great thing.  Were I a better man, I'd do it.  So getting kids started on it is great.  That Encinitas -- a funky beachside city in which I formerly resided -- did it is wonderful.

But I also like that the plaintiffs felt comfortable enough to challenge the program.  They think that yoga has a substantial religious component.  As it surely can.  They're worried that we're potentially mixing church and state here.  That's a no-no.  So they file a lawsuit.  I like that people are vigilant about this.  The First Amendment is in there for a reason.

I also like that amici then pour in.  People care.  Great job.  Let the court know.  Give 'em your perspective and arguments.  On both sides.

One of the interested parties even intervenes.  Even better.  Plus, they've got a great name.  "Yes! Yoga For Encinitas Students."  Love it.

We've got a great judiciary.  We take our First Amendment rights seriously.  We assess the validity of the program at issue through participation by affected citizens, committed advocates, and the steady work of neutral, informed judges.

What a country.

Finally, and importantly, I also love the result.  The trial court finds that the Encinitas yoga program doesn't violate the First Amendment.  The Court of Appeal affirms.

They're right.

I can readily imagine a yoga program that might well be unconstitutional.  But this one isn't.  The school district has done an exceptionally good job removing any religious components from what is clearly (in my view) a secular exercise program.  Indeed, I think Encinitas has probably even been more protective in this regard than it need be.  Some representative examples:

- The program takes down any posters about India (for fear of "referencing" the Hindu religion);
- They rename the "lotus" position -- named after a plant, for goodness sake, not a god -- into the "criss-cross-applesauce" position; and
- They tell the kids to stop saying "namaste".  Apparently a "Howdy," "Aloha," or fist-bump will do.

The truth of the matter is that, at least as most people practice it in the U.S., yoga's pretty much an entirely secular experience.  Sure, there's a "mellowness" and meditative aspect to it.  And there are similar things in the religious tradition from which it arises.  So is there a hint of religion here?  I wouldn't disagree.

But, in truth, we've secularized the poop out of it.  I've got no problem presenting it to kids.  Indeed, I think it's a good thing, not a bad one.  And certainly doesn't "establish" the Hindu religion in violation of the First Amendment.

I can think of a plethora of religiously-backed -- but presently "secular" -- parts of public schools that have a much deeper connection with religion than the challenged yoga program here.  For example, it's hardly a coincidence that the "winter" break falls over Christmas.  Or, to take an especially timely example, the current "spring" break for many students.  Formerly called "Easter" break.

Why don't we have school (or, for most people, work) on Sunday?  Didn't just happen randomly.  Religious backdrop.  Sabbath.  That's an integral part of most schools.  Hard to argue that that's a "secular" tradition that's perfectly legitimate but that performing yoga somehow crosses the line.

We've secularized a lot of things.  Including but not limited to yoga.  Which is not at all to take away from those who want to practice it religiously, or find the religious and/or spiritual component to be a significant part of their experience.  Any more than taking off a Sunday (or a Saturday, or a Friday night) for secular reasons detracts from the experience of someone who takes off those days to keep the sabbath and who finds such conduct religiously fulfilling (or compelled).

Different strokes for different folks.

So I like what the Court of Appeal does here.  Indeed, I've liked a lot of what the Court of Appeal has done lately.  (Informed readers may well understand my reference.)  That today's opinion gets issued on Good Friday is just another bonus.

So heading into the weekend, I say to all:  Namaste.

Chula Vista Citizens v. Norris (9th Cir. - April 3, 2015)

One might initially think that an en banc opinion by Judge Reinhardt that involved an analogous issue to Citizens United -- here, whether a city could permissibly allow only "natural persons" (as opposed to corporations) to sponsor an initiative petition -- would involve a close ideological split.  Especially when that issue is combined with a municipal requirement that the official proponent's name appear on the initiative petition circulated to voters.  After all, there's a First Amendment issue with respect to both requirements.  And, remember, it's an en banc opinion.  Presumably the panel did something that the en banc court felt necessitated review; e.g., didn't like.

That last part's true.  The panel opinion (authored by Judge O'Scannlain) thought that there was a First Amendment problem here.

The en banc court does not.  It's an 11-0.

U.S. v. Tamman (9th Cir. - April 3, 2015)

Just a reminder:

You can be a partner in a major law firm.  You can hire Alan Dershowitz to handle your appeal.

But if you screw up, you can still be sentenced to 84 months in federal prison.

And lose your appeal.

Thursday, April 02, 2015

Ellis v. Ellis (Cal. Ct. App. - April 2, 2015)

This is yet another example why you don't wait until the last day to file your Notice of Appeal.
 Especially when there are multiple judgments entered on the same week.

Even attorneys can mess it up.  Fatally.

File early.  No harm.

As opposed to filing late.

In Re R.T. (Cal. Ct. App. - April 2, 2015)

Look for the California Supreme Court to grant review in this one.

"A “rebellious” and “incorrigible” teen repeatedly runs away from home, placing herself and her infant daughter at “substantial risk [of] . . . serious physical harm.” (Welf. & Inst. Code, § 300, subd. (b)(1).)  Can the juvenile court assert dependency jurisdiction over the teen on the ground that her mother, who tried everything she could, was still unable “to adequately supervise or protect” the teen? (Ibid.) In re Precious D. (2010) 189 Cal.App.4th 1251 (Precious D.) said “no,” reasoning that the first clause of section 300, subdivision (b)(1), requires proof of parental culpability. We respectfully disagree, and hold that the language, structure, and purpose of the dependency statutes counsel against Precious D’s conclusion that this provision turns on a finding of parental blameworthiness. When a child thereby faces a substantial risk of serious physical harm, a parent’s inability to supervise or protect a child is enough by itself to invoke the juvenile court’s dependency jurisdiction."

Regardless of whether today's opinion is right or wrong, the split -- and its importance -- seems to legitimately call for a settled rule.

Wednesday, April 01, 2015

People v. Huggins (Cal. Ct. App. - March 30, 2015)

We don't trust in-custody inmate testimony because (inter alia) we're concerned  -- for good and empirical reasons -- that inmates might lie and incriminate another prisoner to get a reduced sentence in their own case.

We don't trust accomplice testimony for identical reasons.

As a result, in California, you've got to have corroboration.  You can't convict someone based on only the testimony of a "jailhouse informant".  Penal Code Section 1111.5.  Ditto for accomplice testimony.  Penal Code 1111.

Imagine a case where you've got no objective corroboration.  But you have both accomplice and jailhouse informant testimony.

Is that enough?  Do two presumptively unreliable pieces of information combine to create information that is now reliable?

The Court of Appeal says "Yes."

I know that some of you may be thinking that this is another April Fool's joke.  But it's not.  That's actually the Court of Appeal's holding.

Elmore & Doe vs. The Execution Table (9th Cir. - Mar. 30/April 1, 2015)

Two death penalty habeas cases.  Here's a summary of the first one (from the concurring opinion):

"[Elmore's] lawyer, who had never before handled a capital case, advised Elmore to plead guilty without receiving any agreement as to sentence in return.  [FN:  “[P]leading guilty without a guarantee that the prosecution will recommend a life sentence holds little if any benefit for the defendant.” [Cites]] . . . . The lawyer allowed Elmore to appear in shackles at his first appearance before the sentencing jury. The one-hour mitigation presentation consisted entirely of unconvincing attempts to prove through court personnel that Elmore was remorseful. And, counsel never investigated whether this senseless crime was at least in part the product of Elmore’s organic brain damage."

The second one is very similar.  Horrible crime.  Subpar representation by the attorney.  Sentence of death.

Judge Milan Smith writes the opinion in the first case.  Judge Reinhardt writes the opinion in the second one.

The first case (by Judge Smith) reverses the death penalty; the second (by Judge Reinhardt) affirms it.

I say that, of course, only because it's April Fool's Day.  Not even a good "trick".  As you might expect, it's actually the other way around.

I'll add that Doe's case gets assigned to a panel that includes not only Judge Reinhardt, but also Judge Pregerson (as well as Judge Wardlaw).

Not really what the San Diego District Attorney's Office really wanted to see, I'm sure.

Monday, March 30, 2015

Cline v. Homuth (Cal. Ct. App. - March 30, 2015)

Don't sign boilerplate settlement agreements that say that you're releasing "everyone" if you want to preserve your right to sue someone else.  Even if it's boilerplate, even if there was no real intent to release everyone by any of the parties, and even if the insurance company who prepared the boilerplate agreement admits that it's a standard form and they didn't give a whit about releasing anyone except the insured, the trial court will hold that the release means what it says.

And the Court of Appeal will affirm.

Friday, March 27, 2015

Peruta v. County of San Diego (9th Cir. - March 26, 2015)

Don't say I didn't tell you so (the day the opinion came out).

People v. McGowan (Cal. Ct. App. - March 27, 2015)

One of the great things about reading the pages of the California Appellate Reports is that you learn new things.  Including, on occasion, new crimes.  Things that you never thought of as criminal, but that you learn could indeed send you to jail.

Today's a perfect example.  Do you have a milk crate?  Maybe in your closet or garage?  You know, one of these:

If so, prepare to wear an orange jumpsuit.  Because Section 565 of the California Penal Code says you get up to six months for this offense.  As David McGowan -- who was charged with this precise offense in Santa Monica -- confronted in today's opinion.

It's only a crime if there's a "brand" on your crate; e.g., the name of a dairy.  But I expect that's a lot of them.  I'll forthrightly admit that I've got several of these baskets in my garage (containing a great deal of junk, no doubt).  I'm not sure whether they have a brand on 'em or not.  And I'm not checking and letting you know, either.  Because I have no intention of giving probable cause to everyone in the universe by publicizing it if there is, in fact, a brand on one of my baskets.

It's a funny criminal law.  I expect that there are lots of "normal" people, like me, who violate it.  Not because we stole the things.  But because we saw 'em in an alley, or in a trash can, and picked 'em up (or still have them, as I do, from college decades go).  Did we st some level realize that they belonged to "someone else" -- i.e., the dairy with the name on it?  I guess so.  But only in the same way that a pallet, or shopping bag, or things like that "belong" to other people.  They, they were at some point someone else's, but they got rid of them, or didn't care, and now they're ours.

My sense is that these things are routinely discarded, or lost, and that it's common practice to not worry about it.  For good reason.  These things cost around five bucks.  Less, I'm sure, if you buy them in bulk (as the dairies do).  Like pallets, the seller drops them off with the store when they give 'em milk.  And if they're lost, or the store dumps them, no biggie.  Would it be "nicer" if the store gave them back to the dairy?  Sure.  But it's not like the dairy really cares.  So they don't totally try to control them.  If the baskets end up in an alley, or a trash can, or someone else's garage, that's just the nature of the milk business.

Yet we're still talking six months in jail if you happen to have them.

So that's weird.

It's also a funny law because we already have the crime of "possession of stolen property".  Why do we need a special "milk crate" law?  Why doesn't the usual law apply?  Similarly, if the milk crate law is different than the regular "stolen property" law -- e.g., maybe a lower mens rea requirement -- why so?  I understand that dairies have lobbyists, and that Sacramento cares about milk.  But why have a special -- and potentially different -- law for milk than for stereos, bicycles, and all the other stuff that is routinely stolen?

I get that milk crate theft is -- apparently -- a problem.  Turns out that plastic has some value.  So if you steal 500 or so of these things a day, you can maybe make some money.

But that's true for manhole covers, aluminum cans, and pretty much everything else in the universe as well.  Steal enough and it's a problem.  Strange that we have a special rule for milk crates.  One that's sufficiently overbroad that it likely covers a nontrivial number of, say, lawyers in our state.

So check those milk crates.  You may be committing a crime.

Thursday, March 26, 2015

Medina v. Chappell (9th Cir. - March 26, 2015)

This is --  unintentionally -- hilarious.  (Okay, maybe not hilarious.  But pretty funny/ironic.)

Judge Wardlaw writes a 36-page, single-spaced opinion.  I read the whole thing, and was about to say something about it.

You can figure out what kind of case it is just by looking at the docket numbers.  The docket numbers in the district court begin with "94-" and "97-".  So, yes, the appeal arises out of petitions filed around two decades ago.  The Ninth Circuit has been similarly speedy.  Its docket numbers begin with 09-.  Which means that it has taken six years simply to resolve the appeal.

You guessed it.  It's a death penalty case.

So resolve it Judge Wardlaw does.  The opinion gets published today.

But, simultaneously, another order issues.  Here's what it says in full:

"We sent the accompanying opinion for filing on Friday, March 20, 2015. On Tuesday, March 24, 2015, we received from Mr. Medina’s counsel a filing entitled 'Suggestion of Death' informing us of a press release indicating that Mr. Medina had 'died on the evening of March 22, 2015 from natural causes . . . .'

Because at all times when we made our decision and sent it for filing, the case was not moot, we allowed it to be published in the ordinary course. However, we direct the parties to file letter briefs within 14 days hereof addressing how best to proceed with the opinion in light of Mr. Medina’s death."


Judge Wardlaw's opinion affirmed the two death sentences against Medina.  Little did she know that, two days later, death would indeed follow.


Wednesday, March 25, 2015

People v. Velasco-Palacios (Cal. Ct. App. - March 23, 2015)

I said last week that I might not have dismissed the indictment -- and let a (potentially) guilty person free -- based on the government misconduct in that case.  Unlike the Ninth Circuit.

By contrast, here's a case where I think the Court of Appeal rightly sets a (potentially) guilty person free based upon government misconduct.

Defendant gets charged with lewd conduct with a child.  The D.A. makes an offer of eight years.  The defendant doesn't want to take the deal, but his lawyer tries to persuade him to make a counteroffer, and thinks the thing will eventually result in some sort of plea.

Meanwhile, the D.A.'s not happy his offer isn't being accepted, so to turn up the heat, tells the P.D. that he's thinking about refiling the charges against the guy and alleging penetration, which would mean a potential life sentence.  And if he refiles, the D.A. threatens, there will be no plea.

Pretty good threat.

One slight problem.  The D.A. knows that there's no evidence whatsoever of penetration.

Okay, you might say.  That's why they call it a "threat".

Fair enough.  It's what happens next that what justifies, in my mind, the dismissal of the charges.

The D.A. has threatened to allege penetration to try to coerce a guilty plea.  He knows there's no evidence to support it, however.  Meanwhile, discovery in ongoing.  There's an audio tape of the interrogation of the defendant by the police.  It's in Spanish.  The D.A. has a transcription of the interrogation which has been translated into English. Which he turns over to the defendant's counsel.

With one caveat.  At the end of the transcript, the D.A. fabricates two additional lines.  Which read:

“[DETECTIVE]: You’re so guilty you child molester.
[DEFENDANT]: I know. I’m just glad she’s not pregnant like her mother.”

You read that right.  The District Attorney forged a transcript in which the defendant allegedly admitted the offense.  As well as essentially admitted penetration.  Which was what the D.A. was threatening to allege -- despite having no actual evidence of it -- in order to coerce a plea.

Here's what the Court of Appeal says about this conduct:

"[An] evidentiary hearing was held on December 17, 2013. At the hearing, Murray [the D.A.] testified the lines were added as a joke, but admitted he did not have a joking relationship with Hinman [the P.D.] and had not made such jokes in the past. . . . [T]he trial court found Murray’s dissemination of the fabricated transcript was made during discovery proceedings and was 'in play' during settlement negotiations. The trial court also found Murray had failed to prove the fabrication was a joke, but even if it had been done in jest, Murray’s dissemination of the fraudulent confession during plea negotiations was 'egregious, outrageous, and … shocked the conscience.' . . .

[T]he trial court found Murray deliberately altered an interrogation transcript to include a confession that could be used to justify charges carrying a life sentence, and he distributed it to defense counsel during a period of time when Murray knew defense counsel was trying to persuade defendant to settle the case. Further, Murray did not reveal the alterations until nine days later, and only then when he was directly confronted about the fabricated lines by defense counsel. This is egregious misconduct and, as is shown below, it directly interfered with defendant’s attorney-client relationship. Because Murray clearly engaged in egregious misconduct that prejudiced defendant’s constitutional right to counsel, the trial court was correct in finding Murray’s actions were outrageous and conscience shocking in a constitutional sense."

On that basis, the trial court dismisses the charges against the defendant, and the Court of Appeal affirms.

I can honestly say that I don't even understand what the D.A. was thinking.  What he did was deeply, profoundly offensive.  Shocking.  Horrible.  I can barely even fathom it.

Tuesday, March 24, 2015

Watts v. Oak Shores Community Ass'n (Cal. Ct. App. - March 24, 2015)

This is justice?!

I'm not saying that Justice Gilbert's opinion is unambiguously wrong.  Maybe it even reaches the legally correct result.

But the thing leaves an incredibly bad taste in my mouth.  If it's indeed the "right" result, maybe the system that gives rise to that result needs changing.

The facts are simple, at least when sufficiently condensed.  Oak Shores is a homeowner's association in a community of 650 or so homes.  From the opinion, it looks like the place is on a lake or at some other vacation-like spot in San Luis Obispo county -- I think this one.  Of the 650 homes, only a tiny fraction -- around twenty percent -- are occupied full time.  Most of 'em are just vacation homes.

Some of those owners -- around 66 of 'em -- occasionally rent their places out as vacation rentals.  No problem.  You're allowed to do that.  Defrays the cost of your vacation home.  For what it's worth, the practice is also socially beneficial.  Allows people not rich enough to afford a second home to vacation in a nice place.  Stops nice properties from being vacant most of the year.  Good for everyone.

But many people in the HOA who live there full-time -- and (presumably) some of those who have their vacation houses there -- don't necessarily like having riff-raff around who can't afford a second home.  They don't like the short-term rentals.  Because they don't do it and, being rich enough, don't need it.  Plus it puts more people in the community pool, the lake, makes for extra garbage, etc. that wouldn't be there if the homes were simply vacant.

So the HOA adopts some rules.  Some of which, I think, are potentially reasonable.  There's a $325 fee for owners who rent their homes out.  I'm not sure that's really necessary, since one person (albeit "riff-raff") presumably creates a similar amount of garbage etc. as a rich person.  But okay.  It's a fairly small fee in the scheme of things -- probably offset by a day or two's worth of rental.  There are some other restrictions as well; a limit on the number of watercraft on the property, etc.  Things that seem fine.

But the one that struck me as the most restrictive -- and absurd -- is one that said that any rental has to be for a minimum of seven days.  That one stops the overwhelming majority of rentals.  And it is clearly designed to keep out the "weekend riff-raff".  You know:  People who actually have jobs and who can't afford to take off a full week and hang out at a fancy place on the lake.

So one of the owners sues.  Claiming that this restriction is unreasonable.  Why shouldn't he be allowed to rent his place for three days instead of seven?  Same number of people in the house.  The owner's ultimately responsible for any damage, garbage, etc.  Why should anyone care?

Or, more accurately, why should anyone legitimately -- i.e., "reasonably" -- care whether the rental is for three or seven days?  Sure, maybe the weekend renters wear prefer tee-shirts and sneakers to polo shirts and boat shoes.  But that's not a good reason to exclude 'em.

Or so asserts the plaintiff.  Plausibly, in my view.

What does the Court of Appeal do?  Two things.

First, it upholds the restriction.  Finding it "obviously" reasonable.  Here's the money quote from Justice Gilbert:

"That short-term renters cost the Association more than long-term renters or permanent residents is not only supported by the evidence but experience and common sense places the matter beyond debate. Short-term renters use the common facilities more intensely; they take more staff time in giving directions and information and enforcing the rules; and they are less careful in using the common facilities because they are not concerned with the long-term consequences of abuse."  (Emphasis added).


Three-day renters "use the common facilities more intensely" than seven-day renters?  Three day renters violate the rules more than seven day renters?  That's really so "beyond debate"?

My sense is that, on a daily basis, a renter for three days would use, say, the pool, the lake or the garbage can roughly, oh, once a day.  Just like a seven day renter would.  Their use is roughly the same.

Indeed, if anything, a seven day renter uses the facilities more.  Because he uses it for seven days, whereas a three-day renter uses 'em for roughly three.  That's around double, if my math's anywhere near right.

Sure, you could fit in two three-day renters for one seven day renter.  But practically, who gets a three day rental in the middle of the week?  We all know full well that we're talking about either having a family in there for a whole week or a family in there for the weekend.  And which one of these two groups makes more garbage, uses the pool more, etc.?  That's right.  The group there for the whole week.  So the HOA's limitation actually increases the use of community resources.  The antithesis of what the regulation purports to do.

Unless you count the practical reality of the whole thing.  Which seems designed just to stop rentals.  Or at least rentals to riff-raff; read, less wealthy folks.  Make it noneconomical for the owners to rent it out as well as for the riff-raff to afford the place.

That's what the plaintiff says is going on here.  Which seems fairly "common sense" to me.  Justice Gilbert, by contrast, seems to think that the converse is not only true, but "beyond debate".

I'd respectfully disagree.

It's not that I would disagree that renters are (at least slightly) more of a hassle than owners.  But that's not the dispute.  The dispute is about seven-day renters, who are allowed, versus two- or three-day renters, who aren't.  There's no substantial distinction between these groups, in my mind, with respect to how much they "use the common facilities" or are "careful in using the common facilities because they are not concerned with the long-term consequences of abuse."  They are both renters.  Yes, they are (somewhat) more burdensome than owners.  But the owners are ultimately responsible for any damage etc., pay a fee for 'em, and are replacing their own use for that of the renters.  The distinction between three- and seven-day renters seems far from indisputably legitimate.

But Justice Gilbert nonetheless sees it starkly differently.

So that's the first thing the Court of Appeal does.

What's the second?  It awards the HOA its attorney's fees.

Legally, that's perhaps appropriate.  The HOA agreement says the prevailing party gets fees.  Fair enough.

How much attorney's fees does the trial court award to the HOA?  An award that the Court of Appeal (largely) affirms?  How much attorney's fees is the HOA legitimately entitled to in order to defend the lawsuit of a guy who says that he should be allowed to rent his place for a weekend rather than for a week?


Oh, yeah.  That's reasonable.  Awards like that don't totally squash the little guy's ability to sue an HOA over unreasonable restrictions on the use of his property.  Lots of people are willing to risk a million-dollar-plus judgment against them rather than simply submit to whatever limits the HOA places on 'em.  There's no systemic problem with such a regime at all.

*Retroactive Sarcasm Alert*

Am I wrong?  Is anyone else troubled, even in just the slightest, with either the reasoning or the result here?

Again, I'm not necessarily saying that the legal doctrines applied here are wrong.  But the net result is exceptionally troubling to me.  A regime that creates this outcome seems a regime in need of serious improvement.

Because I think that the plaintiff, Mr. Watts, had a darn good point.  As well as a darn good reason for bringing this action.

And I say that as someone who just returned from two weeks of renting someone else's vacation home in an HOA in Hawaii.  So I'm not even the riff-raff that the HOA is trying to keep out.  Or at least I'm  their kind of riff-raff; e.g., the classless nouveau riche.

Monday, March 23, 2015

Boyce v. TD Service Co. (Cal. Ct. App. - March 23, 2015)

As you undoubtedly know, there have been a plethora of "wrongful foreclosure" cases -- both in trial courts and in the appellate courts -- over the past half-decade.  Especially at this point, the consensus judicial attitude to those actions is not especially favorable.

Lest there be any doubt, today, Justice Yegan grants us a fairly good insight into his view.  Ostensibly as regards one particular case, but I think it's pretty indicative of a more general attitude as well.  He ends today's opinion with the following statement:

"Appellant lost in the bankruptcy court. He lost in United States District Court. He lost in the unlawful detainer court. He lost in the Appellate Department of the Superior Court. He lost in Superior Court. He now loses here. As the late eminent federal appellate jurist Rugierro Aldisert would say, "Basta," which translates from Italian to English as, Enough! (United States v Desmond (1982) 670 Fed. 2nd 414, 420) The judgment is affirmed. Costs to respondents."

That's pretty clear, I think.

Friday, March 20, 2015

Munns v. Kerry (9th Cir. - March 20, 2015)

It's facially an ordinary case about standing.  Standing that's absent here, so the declaratory claims get dismissed.

But, factually, it's about what you do when your citizens are kidnapped by hostile forces in a foreign country.  As well as what their families can do in such a setting.  Should you pay ransom?  Should you allow -- or legally prevent -- the families from paying ransom?  What should society, or a single person, do when the life of a loved one is at stake?

What an incredibly difficult question.

But one that the Ninth Circuit is not compelled to answer.

Thursday, March 19, 2015

Seattle Midwest Awareness v. King County (9th Cir. - March 18, 2015)

I make the odds at roughly 4-1 against an informed observer guessing the votes in advance in this one.

The panel consists of judges Kozinski, Christen, and Watford.  A nonprofit group wants to put an ad on the side of Seattle buses that demonstrates opposition to U.S. funding for Israel.  Seattle doesn't let 'em.  There are lots of different ads on the buses, but there are also some limitations (e.g., no nudity, no tobacco products, etc.).

Does Seattle's decision to not allow the advertisement violate the First Amendment?  Who voted which way?

Thinking.  Thinking.  Thinking.

Here's the answer:

Judge Kozinski:  No First Amendment violation.
Judge Christen:  Violates the First Amendment.
Judge Watford:  No First Amendment violation.

Bonus points if you remembered that Judge Watford clerked for Judge Kozinski.  Not that the guy doesn't have a mind of his own.  But at least in this case, he's on the side of his old boss.

Wednesday, March 18, 2015

U.S. v. Zaragoza-Moreira (9th Cir. - March 18, 2015)

Defendant is mildly mentally retarded.  She's caught bringing drugs across the border.  When she's interviewed, she says that she was coerced, and that she "wanted to be caught" so did a variety of things at the border to bring attention to herself; patting her stomach, throwing her passport down, etc.

Her defense attorney makes sure to ask the U.S. to preserve any relevant videotapes.  But the U.S. nonetheless destroys (pursuant to a routine policy) the videotape of the relevant border crossing.

I agree with pretty much everything the Ninth Circuit says when it reverses the district court.  The videotape might well have had some important stuff on it that would confirm defendant's story.  The AUSA should have known to request its preservation.

I'm not at all sure that the U.S. acted in bad faith -- which the Ninth Circuit finds.  Nonetheless, I am confident that the defendant's ability to defend herself -- to potentially confirm some of her story about being coerced and all allegedly trying to draw attention to herself at the border -- was diminished by the government's conduct.

My biggest departure from the Ninth Circuit's disposition is in its final two paragraphs.  I agree that there's not really "comparable" evidence to the stuff the U.S. destroyed; yes, the defendant can testify about what she did, but a videotape is worth a thousand times more than the self-interested testimony of the defendant.  For this reason, the Ninth Circuit dismisses the indictment.  Which may well have the result of setting a guilty person free.

I'm not sure that's a necessary remedy.  Let's assume -- and it's an assumption, but it's one that I'm prepared to make legally -- that the videotape confirmed the defendant's story that she engaged in some crazy acts at the border.  To me, that's doesn't necessarily mean that she was innocent.  It may be that she was just incredibly nervous.  Or had sampled some of the methamphetamine that she was smuggling across.  In short, the lost evidence might -- might -- have been helpful to her case, but it's not necessarily dispositive.

Given this fact, what about a lesser remedy than dismissal of the indictment?  What about telling the jury that there was a videotape of the events at issue, that the videotape was improperly destroyed, and that the jury should accordingly assume that this videotape confirms every single objective act relayed by the defendant?  The thrown passport.  The tummy patting.  Everything.  Then let the other facts come in -- cross-examination, other evidence, etc. -- and have the jury decide guilt.

What's wrong with this lesser remedy?  The videotape couldn't do any better than confirming the defendant's story in this way.  So why not simply tell the jury that it must assume that that's what the videotape did, in fact, show in spades, and then let them assess the balance of the evidence?

We generally assume that juries follow instructions.  If you're not positive, we can give 'em an even stronger instruction.  Tell 'em that there is a videotape (there was, after all), tell 'em we've seen it (a statement that's presumably true; someone at some point saw it), and tell 'em that while we can't show it to 'em right now (true), it confirms everything that the defendant said she did in the line at the border.  The last statement being true as a legal matter.

The AUSA screwed up here.  But to me, I'm not sure the remedy necessarily needs to be dismissal of the indictment.  Something lesser might well solve the problem.  Setting a defendant free sometimes is the only available remedy, but I'm not sure this is one of those cases.

Tuesday, March 17, 2015

People v. Jordan (Cal. Ct. App. - March 16, 2015)

This is why, when you buy something off Craigslist, you meet the seller in a large, crowded place.  Or the parking lot of a police station.

It's also a good indication of why you don't follow someone in your car once they rip you off.

Words to the wise.

Monday, March 16, 2015

Lanquist v. Ventura County Employee's Retirement Corp. (Cal. Ct. App. - March 16, 2015)

Don't mess with the Navy.

Lots of government entities allow employees to "buy" retirement credits for time they spent in the military.  Another perquisite of service.  Timothy Lanquist and Thomas Temple want to make the buy.  Not only for their time in the "actual" military, but also for their four years they spent as a student at the Naval Academy.

The trial court doesn't let 'em do it.  The Court of Appeal reverses.

One of the plaintiffs, Thomas Temple, is an attorney, employed by the Ventura County Counsel's office.  And a graduate of the University of San Diego School of Law.  Both Mr. Lanquist and Mr. Temple prosecuted their matters pro per.

Lots of other jurisdictions don't allow credit for time spent at the various military academies.  As of today, California goes the other way.