Monday, October 05, 2015

Rodriguez v. Robbins (9th Cir. - Oct. 2, 2015)

DOJ attorney Sarah Wilson got some incredibly bad news in August, when the Ninth Circuit issued an order to show cause why she shouldn't be sanctioned for deliberately misleading the court during oral argument and for improperly attempting to influence the court's opinion by leaking something to the L.A. Times immediately prior to oral argument.  (I mentioned this order at the time.)

October was a much better month for her.  Based on the Department of Justice's response to the OSC, the Ninth Circuit vacated the OSC and declined to award sanctions.

The panel still isn't perfectly happy about what Ms. Wilson did at oral argument.  But the worst things the panel thought about Ms. Wilson apparently weren't true.

So no sanctions.  Being incredibly scared is sanction enough.

Norsworthy v. Beard (9th Cir. - Oct. 5, 2015)

The popular press will occasionally refer to litigation in which the California Department of Corrections has been ordered to provide a prisoner with gender reassignment surgery.  (For example, here's the Fox News version of the story.)

The next time one of your friends mentions this case, you can supplement this discussion with a note that the case has at this point been dismissed as moot.  Since the prisoner at issue has been released on parole.

There's still a lingering question about whether the underlying opinion -- a nonprecedential one by the district court -- should technically be vacated as well (in light of the subsequent mootness).  Judge Callahan believes the answer is clearly "yes" since the defendants had nothing to do with the grant of parole:  "The process by which the Parole Board determined that Ms. Norsworthy’s confinement was no longer required and the Governor’s review of that decision are set forth fully in the documents that have been submitted to the Court. There is no real doubt that the Parole Board and the Governor are not subject to or responsible to the CDCR."

Judges Reinhardt and Tashima, by contrast, are not as convinced of this fact as Judge Callahan.  In a lengthy footnote, they find it "interesting" (to say the least) that the case just-so-happened to be made moot the day before oral argument.  Here's what they say in a lengthy footnote:

"[A]lthough our dissenting colleague may be willing to accept the defendants’ assertions regarding the independence ofthe parole review process, we are notso convinced. Before Norsworthy filed this suit, a panel of the parole board had on several prior occasions denied her parole. It last did so in March 2013 for a three-year term, meaning that Norsworthy’s next parole hearing should in the ordinary course have come in March 2016. Four months after Norsworthy filed this suit in February 2014, however, the parole board decided to advance the date of her next parole hearing. That hearing was then delayed and, in the meantime, the district court granted the motion for a preliminary injunction in April 2015. A little over a month later, Norsworthy finally had a parole hearing, at which point a parole board panel approved her application.

By statute, both the full parole review board and governor can review a panel decision within a certain time. See Cal. Penal Code §§ 3041, 3041.2. Here, if both the full parole board and governor had let these statutory periods lapse without action, the parole determination would have become final on October 18, 2015. As it happened, this court asked the parties on July 20 to provide an update regarding Norsworthy’s parole and address whether the parole board panel’s decision mooted the case. In their response, defendants informed us for the first time that the full parole board had at some point approved the panel’s decision and that defendants “anticipate[d]” a final decision from the governor by August 7 that, if favorable to Norsworthy, would insure that she would “be released from prison in August.” The governor did indeed approve Norsworthy’s parole on August 7. Nevertheless, Norsworthy argued that oral argument should proceed as scheduled on August 13 because CDCR planned to release her on August 14, meaning that she would still be incarcerated on the date of oral argument. Defendants reply—filed on August 12, the eve of oral argument—informed us that Norsworthy had in fact been released that very morning. The reply did not divulge why Norsworthy’s release date had changed. . . .

[T]hese coincidences indicate that there is at least some chance that defendants influenced the parole process."

Judge Callahan, by contrast, says that this claim -- and the majority's decision to remand the case to the district court to see if defendants in fact influenced the parole process -- "approaches sophistry".

Regardless, the case is moot, and Ms. Norsworthy will not have the state pay for her reassignment surgery.  At least if she stays out of prison.

One more thing.  It's a sign of the times that both the majority and the dissent expressly refer to the petitioner as a woman.  Because whether you're sympathetic to her claims or not, at this point in our culture, it's a sign of respect to refer to someone by their identified gender.

On that, as with the fact that the present case is moot, everyone on the panel agrees.

Friday, October 02, 2015

People v. Poletti (Cal. Ct. App. - Oct. 1, 2015)

When you're an attorney, and you're in court, you have to control your anger, and not be disrespectful to the judge.

Especially when you're a prosecutor.

That's a lesson that Santa Cruz ADA Ross Taylor apparently didn't learn very well.  Though both the trial court and the Court of Appeal remind him of that duty after the fact.  The trial court held him in contempt.  The Court of Appeal refers to him by name in a published opinion and refers him to the State Bar.

What Mr. Taylor did was fairly straightforward.  He didn't like the judge's rulings, and repeatedly let that fact be amply demonstrated.  Here's the exchange that got ADA Taylor found in contempt:

“THE COURT: Mr. Taylor, your obvious disdain for selected rulings of the Court is totally unprofessional. The way you push back, and it's been almost from the very beginning of the case. And, you know--
“MR. TAYLOR: Are you serious?
“THE COURT: Yes, I am totally serious. It's not a good time to engage me in argument about it--
“MR. TAYLOR: Ya, well, you know--
“THE COURT: Mr. Taylor, because I'm not going to listen to you. And you are increasing my ire--
“MR. TAYLOR: I'm not interested in what you have to say. I don't know if I could be any less interested. Some of the rulings that you've made are just outrageous, Your Honor. . . .”

As an aside:  Saying "Are you serious?" to a judge is pretty much never a good idea.  I struggle to come up with an example of where this would be the right response to something the person behind the bench says.

ADA Taylor did some additional interesting stuff with respect to a witness, and engaged in some other deeply troubling conduct with respect to his Brady obligations.  But it was his attitude that raised the ire of the trial court and the Court of Appeal.  Here's how the Court of Appeal describes a portion of his conduct:

"In addition to his offensive statements to the court outside the presence of the jury (“I'm not interested in what you have to say. I don't know if I could be any less interested.”), prosecutor Taylor exhibited rudeness while jurors were present. We begin with just four of numerous examples that illustrate prosecutor Taylor's behavior at trial. First, after the court overruled Taylor's objection that a question posed by defense counsel had been asked and answered, Taylor quipped: “So the different answer than she just answered for the same question?” Second, Taylor openly disagreed with a ruling sustaining a defense objection, asserting that his line of questioning “frankly [was] proper.” Third, when the court instructed Taylor to “[s]top editorializing,” Taylor retorted that he was “[h]ardly editorializing.” Fourth, when the trial court sustained one of defense counsel's relevancy objections, Taylor responded “I'm not sure that it's irrelevant.” These were not isolated incidents, as evidenced by the trial court's statements. When the court reprimanded Taylor outside the presence of the jury, it commented “[a]bout 80 percent of my evidentiary objections you want to argue in the presence of the jury about the appropriateness of my ruling. Stop it.” And, the court described Taylor's inappropriate remarks during the hearing on his citation for contempt as “the culmination of a continuum of insolent and inappropriate behavior by [the prosecutor] that occurred throughout the trial.”

Not good.

I understand that people who go to law school and become lawyers are often not exactly known for their placid temperament.  I also understand that prosecutors sometimes are profoundly convinced that the person they're prosecuting is guilty, and deserves punishment, and hence are frustrated when various decision by the judge don't go their way.  (Ditto, on the other side, for defense counsel.)

But you've got to calm down.  Take a deep breath.  Trust the system.

Including your participating in it as an officer of the court.

Thursday, October 01, 2015

In Re Marlene Penrod (9th Cir. - Oct. 1, 2015)

This is a fascinating opinion by Judge Watford.  And if you're keenly interested in the "hanging paragraph" of 11 U.S.C. § 1325(a)(*), which creates a special rule for auto lenders by prohibiting bifurcation of claims that are secured by a “purchase money security interest” in a motor vehicle recently acquired for the debtor’s personal use, you're going to be doubly thrilled.  And who isn't?

But the most interesting part of the case to me is its factual underpinning.  Marlene Penrod traded in a Ford Explorer worth $6000 -- on which she owed $13,000 -- so she could buy a Ford Taurus worth $25,000.  So this is someone who's got negative equity in a car, but there's someone still willing to loan her money, presumably at confiscatory rates, so she can trade up to a Taurus.

But, predictably, she falls behind, and ultimately declares bankruptcy.  At which point AmeriCredit, which loaned her the money for the Taurus (and paid off her Explorer), isn't happy with her proposed bankruptcy plan, since it would result in a secured claim for only $16,000 (the value of the Taurus at the time) and an unsecured claim (which basically would be wiped out) for $10,000.  So it objects to her plan.

There's then a legal fight.  Not surprising.  But remember, it's over a mere $10,000, when $16,000 is already getting paid, an a bankrupt debtor.

Ms. Penrod ultimately wins that dispute.  What legal fees did she say she incurred in litigating the "hanging paragraph" issue in Section 1325(a)(*); e.g., in fighting AmeriCredit's objection to her plan to make $10,000 of its debt unsecured?


I'm not necessarily saying she didn't expend $245,000 of legal fees in fighting a $10,000 dispute.  I'm not necessarily saying she did, either.

But what I am saying is that it makes no rational economic sense to spend $245,000 in legal fees to fight a $10,000 dispute.  Especially when that doesn't even count the legal fees spent on the other side.

I understand that there's an attorney fee provision here in which AmeriCredit will recover it's fees (albeit from a bankrupt debtor) if it wins and Ms. Penrod's lawyer will recover fees (at least under the Ninth Circuit's ruling, which reversed the district court on this issue) if her side wins.

But. socially, we should not be spending $245,000-plus -- or anything like it -- on a $10,000 dispute like this.

Even if we allegedly do.

That's not to say that Ms. Penrod shouldn't (or should) be allowed to recover her fees.

But it is to say that $245,000 disputes over $10,000 are socially inefficient.

Though apparently transpire.

People v. Nguyen (Cal. Supreme Ct. - Aug. 13, 2015)

The California Supreme Court recounts:  "In the afternoon of July 21, 1994, Tony Nguyen was giving some members of the Cheap Boys gang a ride home. Vinh Kevin Lac was in the front passenger seat of the car Tony was driving. Tinh Dam and his girlfriend, Chynna Vu, were in the back seat. Vu was a member of the Southside Scissors, a female Asian street gang."

The "Southside Scissors"?!  Really?

I know it's an actual gang.  I was just surprised by the name.

Very surprised.

P.S. - When you read the first eight pages or so of the opinion -- which recounts the details of a large number of gang-related murders -- it sounds like the Wild West out in Garden Grove, Westminster, etc.  Seriously.

Tuesday, September 29, 2015

In Re Emma B. (Cal. Ct. App. - Sept. 29, 2015)

I wonder what the long-term consequences are of decisions like this one.

California's complicated paternity and dependency statutes are motivated by sound principles.  We want parents to have parental rights even in "nontraditional" settings, and even when the biological basis for fatherhood is absent.  So, for example, we declare that when a husband is married to a wife, and when wife has a child during the marriage, and when the husband takes the child into his home and raises him as his own, we don't deprive the father of parental rights even if it turns out that the child was biologically fathered by a different person.  Makes sense.

But here, we're dealing with those same facts, but in a different context.  And context matters.

Here, Father and Mother were married in 2011, but Father was deployed to the Persian Gulf in August of 2103.  Mother apparently did not waste much time, since when Father returned home from deployment in April of 2014, he discovered that Mother was seven months pregnant.  Something that doesn't happen from even the most intimate of overseas calls on Skype.

So Mother's had an affair and gotten pregnant, but the biological father (Steven) wants nothing whatsoever to do with the child.  So what's Father to do?  Ditch both his wife and the unborn child, leaving them to their own devices?  Sounds harsh.  So Father decides to stick with Mother for at least the time being, and for a couple of months, he tries to step up to the plate, despite the fact he knows that the child isn't his.  He's present at the birth, puts the child on his military health insurance, etc.

But Mother's a mess.  She tests positive for opiates at birth, which are detected in the newborn kid.  Then, during the next several months, Mother's found unconscious, under the influence of drugs, while the baby's in her care.  Not good.  So San Diego Health and Human Services grabs the kid.

At this point, Father's done.  He plans to divorce Mother.  He doesn't want to raise the kid because she's not his daughter.  Plus he's moving out of state in December of 2014 due to a military transfer.

So he asks for paternity testing to prove, legally, what we all already know -- that he's not the kid's father.

But the trial court says no dice.  And the Court of Appeal affirms.

It'd be one thing, Justice Huffman holds, if Father had ditched mother immediately.  Then his lack of a biological connection to the child would be relevant, and he could likely demand genetic testing to prove he hasn't the father.  But since he wasn't a total jerk at the outset -- or, as Justice Huffman puts it more artfully, because "Michael was married to Mother at the time of Emma's birth, signed Emma's birth certificate, financially supported her, put her on his military insurance, and for a limited period, accepted her into his home," he loses the appeal.  No right to genetic testing.  Law doesn't care that you're not the actual father.  You're stuck.

You can imagine why the law might well want to allow non-biological connections in such settings.  But in the long term, once this legal regime becomes well-known, I wonder if it doesn't result in a suboptimal world -- one in which other similarly-situated Michaels of this world decide that in order to avoid precisely what our real-world Michael had to endure that they're better off being jerks from the get go.  Abandoning Mother and unborn infant at Day One, leaving them off their insurance, and not taking them into their home for even a second.

That's a better world?  That's what we want to incentivize?

Monday, September 28, 2015

People v. Leeds (Cal. Ct. App. - Sept. 28, 2015)

Here's the first paragraph of this opinion:

"A defendant accused of murder pleads not guilty by reason of insanity. He claims that his delusional state caused him to believe that he was acting in self-defense. Here we hold that an instruction on self-defense in the sanity phase must inform the jury that a defendant's delusion caused him to believe that he was in danger of great bodily injury or death that required the use of deadly force and that he would be legally justified in doing so."

That last sentence seems like it's missing something, doesn't it?  Like a verb or a dependent clause or something like that.

I'm pretty sure that Justice Perren means to say that an instruction at the sanity phase "must inform the jury that a defendant[ is legally insane if] a defendant's delusion caused him to believe that he was in danger of great bodily injury or death that required the use of deadly force and that he would be legally justified in doing so."  Or at least that something like the omitted clause was initially in the opinion before the last sentenced was edited.  Because you don't instruct the jury that a defendant's delusion caused him to believe X or Y.  You instruct the jury that it's a defense (or whatever) if the defendant's delusion caused him to believe X or Y.  And that "defense" part is what seems to be omitted here.

Later in the opinion, Justice Perren makes clear what he's trying to say.  Stating, correctly, that "A person suffering from a delusion that causes him to fear that another is attempting to take his life is legally insane if the facts perceived as the product of his delusion would legally justify his acting in self defense. (People v. Rittger (1960) 54 Cal.2d 720, 732, quoting M'Naghten's Case, (1843) 10 Clark & Fin. 200, 211 [8 Eng.Rep. 718] [killer who "'labours under . . . partial delusion . . . must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real'"].) Here we are concerned with whether Leeds understood whether his conduct was legally wrong: As a consequence of his delusion, did Leeds believe that he was in imminent peril of great bodily injury or death? "'For example, if under the influence of his delusion [the defendant] supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment.'""

Justice Perren just needs to say that same thing more cleanly in the first paragraph.  Then we'll all be good.

In Re Tobacco Cases II (Cal. Ct. App. - Sept. 28, 2015)

In Re Tobacco Cases II ends not with a bang, but with a whimper.

This famous UCL action, which went all the way to the California Supreme Court, ends today (in all likelihood) in the Court of Appeal.

There's little doubt that, as the trial court found, that Marlboro Lights were just as dangerous as all other cigarettes, that Philip Morris knew that fact, and that Philip Morris nonetheless advertised these products (falsely) as healthier than the alternatives.  Nonetheless, the trial court decided to dismiss the plaintiffs' lawsuit, after all these years, because consumers "received value from Marlboro Lights" (i.e, the "joy" of smoking) and plaintiffs' evidence submitted to show the difference between what consumers paid for Marlboro Lights and the value they actually received "was incompetent and inadmissible."

The Court of Appeal agrees.

The expert evidence submitted by plaintiffs did indeed have its problems.  The trial court said this about the expert's consumer survey evidence: "Rarely have I ever seen something that was subject to such a multifaceted attack. It just demolished this survey."  And it did indeed have problems.

But let's just take one step back.

Of course consumers put some value on the alleged health benefits of Marlboro Lights.  That's why they bought them in the first place.

Yes, there were undoubtedly other factors at work.  And, yes, the "value" of those alleged (but non-existent) health benefits to the consumer are hard to value for restitution purposes.  Did consumers pay an extra five cents a pack?  Twenty-five cents?  A dollar?

Hard to tell.  Plus, it might be different for different people.

But consumers undoubtedly paid something.

Yet Philip Morris gets off entirely without consequence for its deliberate false advertising.

We usually say that when we're fairly confident about the "fact" of damages we're incredibly flexible amount its quantification.  Yet the Court of Appeal takes a slightly contrary approach here.

Maybe the expert evidence here was so bad that it was essentially valueless.  That seems to be what the Court of Appeal holds.

But it may also be that the Court of Appeal's opinion may appear to demand a degree of certainty in the presentation of such evidence that's contrary to both public policy and common sense.

I'd have liked to see something in Justice McConnell's opinion that balanced the need for "some" evidence against the need for "perfect" evidence.  In my view, this is a pretty darn good case where we know full well that some degree of restitution for Phillip Morris' misconduct should be imposed, and if all we can do is to approximate the proper restitutionary amount, that's more than sufficient.

But that's not the way the Court of Appeal goes.  It wants something more than the evidence that was submitted here.

Maybe that's right.  Maybe the evidence here was just really, really bad.  Unacceptably so.

But it might also be nice for the judiciary, somewhere, to expressly recognize that, in cases like this, perfection isn't required.  And that even substantial imperfection would still be more than sufficient to authorize restitutionary relief for deliberately false advertising.

Friday, September 25, 2015

Int'l Franchise Ass'n v. City of Seattle (9th Cir. - Sept. 25, 2015)

The Ninth Circuit holds that it's permissible (at least at this point) for Seattle to raise the minimum wage to $15/hour and to do so for employees of franchisees (e.g., McDonald's) at a somewhat faster clip than at other businesses.  Judge Hawkins writes the opinion.

The case involves an appeal of a preliminary injunction, so Judge Hawkins says at the outset of his opinion: "While we express no view as to the ultimate merits, we affirm because IFA did not, at this stage in the proceeding, show it is likely to succeed on the merits or that a preliminary injunction is in the public interest."  But after explaining for 36 pages why IFA's factual and legal contentions were meritless, at the end of the opinion -- which applied the "serious questions" test to provisional relief requests -- Judge Hawkins also says:   "Though the district court failed to include all Winter factors, [Cite] it ultimately reached the proper conclusion because IFA did not raise serious questions going to the merits on any of its claims, nor did it show that an injunction is in the public interest."

Given the preceding 36 pages, and the fact that the panel holds that "IFA did not raise serious questions going to the merits on any of its claims," I think that's a pretty clear "view as to the ultimate merits."

Thursday, September 24, 2015

People v. Sellner (Cal. Ct. App. - Sept. 24, 2015)

Can you cogently resolve an appeal in a published opinion in three pages or less?

Justice Yegan can.

Wednesday, September 23, 2015

U.S. v. Flores (9th Cir. - Sept. 23, 2015)

Rather than recite the facts of this extremely interesting case, I'll merely cut-and-paste the money quote from Judge Wardlaw's majority opinion (to which Judge Pregerson dissents):

"Once again, an Assistant United States Attorney for the Southern District of California overstepped the boundaries of permissible questioning and argument. We reluctantly affirm Flores’s conviction under the high bar of the plain error standard."

Not exactly a ringing endorsement by the Ninth Circuit of the relevant office.

In Re D.P. (Cal. Ct. App. - Sept. 22, 2015)

The question is whether "Father" is the actual father of D.P., because if he is, he's likely entitled to a lot more statutory and constitutional protections than he was given in this case. And there's some evidence that Father is indeed the actual biological father of D.P. since Mother -- who presumably has some clue as to who the father is -- "named father [I think that should read "Father"] as D.P.’s biological father . . . and told the court father was currently in federal prison in Victorville for illegally entering the country."  So Father wants to get a paternity test to figure out if he is, in fact, the father of D.P.

But the trial court denied him that right.  The Court of Appeal affirms.

Justice Codrington says that there's simply no way that Father could actually be the father of D.P., so he had no right to paternity test.  She says:

"The hospital discharge summary, dated May 20, 2013, attached to the jurisdiction/disposition report filed May 31, 2013, states D.P. was born prematurely at 28 to 37 weeks. D.P. was thus conceived in late August 2012, after father was incarcerated in July 2012. Taking into account D.P. was conceived after father was arrested and incarcerated on July 10, 2012, the juvenile court reasonably denied father paternity testing, since father could not have fathered D.P. while father was incarcerated."

A couple of questions.

First, I'm pretty sure the hospital discharge report doesn't mean that D.P. "was thus conceived in late August 2012."  I think that what Justice Codrington means to say is that if D.P. was born prematurely at 28 to 37 weeks, and if he was born around (say) May 15, 2013, then he must have been conceived no earlier than late August 2012, but could have been conceived as late as November 5, 2012.  No reason to unnecessarily pin down a conception date that's not supported by the evidence.

Second, I might be a tiny less certain about the precision of a hospital discharge report than the Court of Appeal seems to be.  When you're talking about a difference of a month or so (i.e., conception in maybe August 2012 versus incarceration in July 2012), and when the discharge report gives a huge range of 28 to 37 weeks for gestation, I'm not certain I'd rely on that much on a mathematical calculation to "prove" that someone who mother has identified as the father was definitely not, in fact, the father.

I'd instead probably rely less on the hospital discharge report than on simply the date of birth.  If D.P. was born around May 15, 2013, and if Mother said that the last time she and Father had sex was prior to his incarceration on July 10, 2012, then that would require a gestation period of over 44 weeks (e.g., over 10 months).  Which is not likely.  Especially since D.P. was born prematurely.  I'd rely more on the fact that a 10-month-plus pregnancy is pretty uncommon, especially for (as here) a meth-addicted mother, alongside the existence of a somewhat premature birth, rather than trying to precisely calculate a conception date based upon a hospital discharge report that wasn't trying to be precise and that included an exceptionally wide range.

Finally, as a practical matter, is it really impossible for Father to be the father just because he was in prison?  Mother says he's the father.  They definitely appear to have had a relationship.  Now, I admit, it'd certainly be difficult to conceive a child while the father's in prison.  But the Court of Appeal might have a slightly different perspective than I do on what conduct that in fact takes place in the visiting room of the Victorville prison.  I recall one federal prison in California I visited in which an inmate convicted of murder pointed out an isolated area in the visiting room partially shielded by vending machines that he indicated was the place where inmates went to have sex on visitation days.  I'm not saying that's necessarily the case here.  But even if Father was in prison, I'm not sure I'd be confident that it would require another Immaculate Conception [* See Postscript] for Father to in fact be the biological father of D.P.

My money's admittedly on someone else given the underlying dates.  But it definitely ain't a sure thing.

POSTSCRIPT - My reference to the immaculate conception demonstrates conclusively that I needed to pay far more attention in CCD than I apparently did.  A reader correctly notes that the Immaculate Conception refers to conception free of original sin.  I don't think D.P. needs that.  (Though it wouldn't help.)  I meant to refer to "virgin birth".  My bad.  (Doubly bad since I teach at a Catholic law school, no less.)

Tuesday, September 22, 2015

Alamo Recycling Co. v. Anheuser Busch Inbev Worldwide (Cal. Ct. App. - Aug. 24, 2015)

There's slim pickings from the California appellate courts today.  The Ninth Circuit published nothing today (and the California Court of Appeal published nothing yesterday).  And as of lunchtime, the Court of Appeal has only published two things today -- one of which merely amends a prior opinion to add a single-sentence footnote, and the other of which involves the proper way for California to tax intangible private possessory interests that exist in a publicly owned airplane hanger at the Santa Monica Municipal Airport.  And, honestly, it's unclear which one of these opinions I'd be more hard-pressed to say something interesting about.

So I thought I'd go back a tiny bit to last month and briefly mention a lawsuit that shows a lot of cojones by a tiny little recycling company:

"Plaintiffs Alamo Recycling, LLC (Alamo) and Chino Valley Recycling, LLC (Chino) operate “recycling center[s]” where beverage containers sold in California may be redeemed for their “California Redemption Value.” In this action, plaintiffs sued defendant Anheuser Busch Inbev Worldwide, Inc. and other companies that sell or distribute beverages containers in California . . . . The gravamen of the complaint is that defendants knowingly and “falsely” label beverage containers sold both inside and outside California with “CA CRV,” “California Redemption Value,” or similar labels when, in fact, under California law, only containers purchased inside California may be redeemed in California. The complaint alleges that containers sold outside California are transported into California and redeemed at recycling centers like those operated by plaintiffs, and this exposes plaintiffs to state regulatory fines and penalties, risks rendering the “California Beverage Recycling Fund” insolvent, and thereby risks the economic viability of plaintiffs’ recycling businesses."

It's a creative argument.  But, not surprisingly, one that doesn't work.  For a variety of different reasons, one of which can be summarized in three words:

Dormant.  Commerce.  Clause.

Sorry about that.  Yeah, it's a hassle that some people drive in cans from Arizona to redeem them in California.  But there are ways to solve, or at least try to solve, that problem short of the nationwide relabeling that plaintiffs seek.

Sorry about that.  Nice try, though.

Monday, September 21, 2015

Jones v. County of Los Angeles (9th Cir. - Sept. 21, 2015)

Judge Murguia begins this opinion by saying:

"The Jones family—Jill, Michael, and their son G.J.—brought this action under 42 U.S.C. § 1983 alleging that Dr. Claudia Wang violated their Fourth and Fourteenth Amendment rights and committed various torts during her investigation into whether G.J. had been abused."

Which led me to conclude, correctly, that the Jones family was going to win the appeal.  On the theory that you generally don't use the first names of the parties in the first sentence of the opinion unless you're going to find in their favor.  You'd instead depersonalize them and describe them by role.

It's a fact-bound dispute about whether there was a sufficient basis to suspect child abuse here.  Judge Murguia authors the majority opinion, joined by Judge Randy Smith.  Judge McNamee, sitting by designation from the Arizona district court, dissents.

It always takes more time to get an opinion out when there's a dissent.  But the Ninth Circuit case number here begins with a 12-.  And it took nearly a year and a half after oral argument to issue an opinion in this interlocutory appeal.  With respect, that's too long.

Now the case goes back for more pretrial events, and potentially a trial.

Or maybe the parties will settle.  Which they should.  Since it's by no means a slam dunk on either side.

Friday, September 18, 2015

Marilley v. Bonhom (9th Cir. - Sept. 18, 2015)

Judge Graber is pretty darn smart.

She loses this case, so as long as the panel's opinion holds, California won't be able to charge non-residents more for commercial fishing licenses.

But check out her dissent anyway.  It's extremely erudite.

Thursday, September 17, 2015

S.M. v. Los Angeles USD (Cal. Ct. App. - Sept. 16, 2015)

The California Supreme Court should depublish this opinion.  If not do more.

I don't say that lightly.  I'm generally not a fan of the regime (e.g., under Chief Justice Lucas) in which the California Supreme Court depublishes tons of cases from the Court of Appeal instead of granting review.  I'm happy that the graph of the recent depublication rate looks something like this:

Moreover, I'm not going to quibble about the result reached here by the Court of Appeal.  There were definitely some seriously problematic rulings in this lawsuit, which involved the molestation of a 14-year old student by her eighth-grade math teacher.  The trial court allowed introduction of evidence about her sexual history with other people; that could definitely be a problem.  The trial court also seemed to think it helpful to instruct the jury that a 14-year old could validly "consent" to intercourse with her teacher; that could definitely be a problem as well.

So as far as the result goes, I'm on board for granting the plaintiff a new trial.  Despite the fact that the jury found that the Los Angeles Unified School District wasn't liable at all, maybe that finding was influenced by some rulings that aren't kosher.  So is everyone on the panel.

But the bulk of the opinion is devoted to why a particular (modified) jury instruction, CACI 426, was improperly given in this case, and why a new trial is principally required on that ground.  And that's a holding that I believe is both (1) wrong, and (2) pernicious.  Both in this case as well as many others.

This is a "negligent hiring" (or retention) case.  It's not enough that Los Angeles Unified employed someone who molested a kid.  Plaintiff's got to prove that L.A. Unified knew or should have known that this guy was someone who might well molest someone.

The standard instruction in these types of cases is CACI 426.  Which says:

“[Name of plaintiff] claims that [he/she] was harmed by [name of employee] and that [name of employer defendant] is responsible for that harm because [name of employer defendant] negligently [hired/ supervised/ [or] retained] [name of employee]. To establish this claim, [name of plaintiff] must prove all of the following:
1) That [name of employee] was [unfit/ [or] incompetent] to perform the work for which [he/she] was hired;
2) That [name of employer defendant] knew or should have known that [name of employee] was [unfit/ [or] incompetent] and that this [unfitness/ [or] incompetence] created a particular risk to others;
3) That [name of employee]’s [unfitness/ [or] incompetence] harmed [name of plaintiff]; and
4) That [name of employer defendant]’s negligence in [hiring/ supervising/ [or] retaining] [name of employee] was a substantial factor in causing [name of plaintiff]'s harm."

That's indeed the basic rule.  We've got to modify this instruction somewhat, since saying that the teacher here was "unfit [or] incompetent" doesn't really express what we mean (much less clearly).  What we're trying to get at is that L.A. Unified is only liable if they knew or should have known that the guy was someone who's going to molest one of his students.

Now, there's a reason this case goes to trial, rather than resolved on summary judgment (or with a settlement).  The teacher here allegedly does some stuff that might well put L.A. Unified on notice that there's a problem here.  He's popular with female students.  Very popular.  He hugs 'em.  A lot.  His classroom conversations sometimes reflect personal stuff.  Very personal stuff.  And he sets up his classroom furniture so there's a nice little hidden alcove.

Mind you, what I've just said could potentially apply equally to lots of teachers I know.  Lots.  But in an eighth grade teacher, maybe this should put L.A. Unified on notice to at least check the dude out, if not have a stern conversation with him about the nature of professionalism when dealing with 14-year olds.

That's why we have a jury.  Up to them to decide just how "weird" this stuff is and what red flags (if any) it should have raised.

But we have to tell this to the jury in non-legalese.  In words they'll understand.  And using terms like "unfitness" or "incompetence" for the job just don't cut it.

So the trial court modifies CACI 426 so it says that L.A. Unified is liable if it knew or should have known, based on these facts, that the teacher here (instead of being "unfit" or "incompetent") had a "dangerous propensity to sexually abuse minors."

That seems right to me.

But the Court of Appeal says it's not.  Indeed, that it's reversible error.  On the ground that requiring proof that someone has a "dangerous propensity to sexually abuse minors" would require plaintiffs to prove that the dude had already molested someone else.  And that, instead, the jury should have been instructed that L.A. Unified was liable if they knew or should have known that the teacher "had the potential for sexually abusing minors" (emphasis in original).

I disagree with all of that.  Strongly.

For one thing, I think that "dangerous propensity" is precisely what we're trying to get at.  We want to impose liability when you know (or should know) that a guy's acting sufficiently strangely in a way that suggests that he may well be the kind of guy who'll touch minors.  "Dangerous propensity" is, to me, a great way to express that idea.  Legal enough to satisfy the Court of Appeal (as opposed to, say, "sufficiently strangely") yet common sense enough to actually assist jurors in making a decision.

For an other thing, I strongly disagree that "dangerous propensity" to do X means -- or even is commonly understood to mean -- that someone's already done X.  The Court of Appeal cites an online dictionary that says that “If you have a propensity for something, then it’s something that comes naturally to you or something you just do a lot.” (emphasis in original).  Let's be willing for a moment to entirely ignore the wisdom of judiciary relying on definitions from -- and, for the record, color me skeptical on the authoritative nature of this particular source.  The simple fact is that to have a "propensity" to do something does not mean that you, in fact, have already done it a lot.  It just means that you have an inclination to do it.  Whether this is your first or fiftieth time.

Yes, I admit, if you do, in fact, do something a lot, that may well be pretty good evidence that you do in fact have a propensity for it.  That's why the definition the Court of Appeal cites has an or in it.  To have a propensity for X is to say that "it's something that comes naturally to you or something you just do a lot."  See the "or"?

When I say someone has a "propensity" for something, that just means that they're the kind of person who might well be into that sort of thing.  When I say that a jittery guy who's wandering around a shopping mall in camouflage clothing mumbling incoherently about space aliens and Obama being out to get him, and who's carrying a machine gun, is a guy who has a "propensity" for committing mass murder, I definitely do not mean that he's already killed twenty people.  I'm saying that he's the type of guy who may well commit mass murder in the future.  And, parenthetically, that anyone who sees the guy doing all this stuff either knows or should have knows that this is true.

If anyone came up to me and said:  "Professor Martin, I disagree with you:  This guy definitionally doesn't have the propensity to commit mass murder since there's no proof that he's actually killed anyone yet," I'd respond that, with respect, they don't know what the word "propensity" means.

Yet that's precisely what the Court of Appeal holds.

To tell a jury, as the trial court did here, that L.A. Unified is liable if they knew or should have known that one of its teachers had a "dangerous propensity" to molest kids based on what they saw from him does not, in fact, hold L.A. Unified liable only if the teacher had previously molested someone.  I can say that someone has a "propensity" to commit suicide even if they've never done it before.  Ditto for someone with a "propensity" to molest students.

The Court of Appeal's contrary holding is, with respect, simply wrong.

But it gets worse.

The Court of Appeal holds that instead of "dangerous propensity," the jury should have been told that L.A. Unified was liable if it knew or should have known that the teacher "had the potential for sexually abusing minors" (emphasis in original).

That's definitely wrong.

Of course the teacher had the potential for sexually abusing minors.  Anyone with arms and/or legs has the potential to sexually abuse minors.  They can sexually abuse minors.  They indeed have that potential.  But that doesn't make their employer liable.  Because all teachers have that "potential".

If that doesn't make intuitive sense to you, I'll use the Court of Appeal's own authoritative source,  Which says that "[i]f you can describe something as possible but not yet actual, choose the adjective 'potential.'"  Or, to the same effect, "[i]t describes something or someone that has the power to become something."  A teacher has the power to become a child molester -- i.e., the 'potential' -- by mere fact that he's a teacher.  To say that L.A Unified is liable if it knew or should have known that one of its teachers "had the power" to molest students is to say that it's always liable.

And that's not, in fact, the law.  Nor what CACI 426 is trying to get at.

So, normally, given all this, I'd say that this was a great -- and important -- case that's deserving of review by the California Supreme Court.

With one problem.

The Court of Appeal here granted a new trial.  On multiple grounds (e.g., instructional error, various evidentiary errors, etc.).  I've got a huge beef with one of those bases for reversal.  But the others are much more pedestrian, and (perhaps even more importantly) much more likely to be right.

So the California Supreme Court may well not want to grant review on all these issues.  And may well not want to grant review on one of them either, since the result will remain the same (i.e., a new trial) even if one of the multiple bases for the Court of Appeal's holding was wrong.  As the Court often says, it reviews judgments, not reasons.  And the judgment here may well be right, even if one of the reasons for this judgment is horribly wrong.

Plus there's a practical problem.  Who's going to move for review?  L.A. Unified is the one aggrieved by the erroneous holding.  But unless they think they can get review granted on all of the bases of the Court of Appeal's ruling (a definite longshot), from a new trial perspective, it doesn't help to merely get review of one of them.

Yet, at the same time, the public policy consequences here are serious.  The Court of Appeal has invalidated a perfectly good CACI.  Worse, its articulation of the correct jury instruction is (in my view) way off the mark, and makes for virtually limitless liability.  Those instructions will be used not only in this case (on remand), but in thousands of others.

That's a problem.  A serious one.

In the best of all possible worlds, the Court of Appeal would grant rehearing and reverse its opinion on the CACI issue.  Of course, that's not likely to happen.  The panel made a decision -- unanimous (albeit with a waiver objection by one of the members) as to the merits -- and it's unlikely to change its mind just because some law professor somewhere thinks it's wrong.  So practically, the chances of this resolution are nil.

The second best world would be for the Court of Appeal to delete the first part of its opinion and rest its judgment on the alternative bases for reversal.  Since the CACI issue is unnecessary to the result, this is possible.  But such a resolution by the panel is practically unlikely as well.  Not only because their minds are (probably) made up, but also because there's going to be a retrial, at which they will want a proper jury instruction.  Since they think the one given in the first trial in wrong, they'll want to give guidance.  Both in this case and others.

As a result, the panel's not likely to solve the problem.

Which leaves the California Supreme Court.

As I said, in a normal situation, I'd think this case would more than justify review.  But I understand (for the reasons previously expressed) that the Court may not want to do that here.

But at a minimum, I'd want the California Supreme Court to depublish the Court of Appeal's (unnecessary and erroneous) holding as to the CACI instruction.  Such a result admittedly won't help L.A. Unified in this case, since there's going to be a retrial, and unless there's review, depublication would still mean that the Court of Appeal's ruling would be law of the case, which means that (in my view) L.A. Unified gets an unjust and inequitable jury instruction on remand.

But at least that's better than leaving the opinion published and having this be the result in all future molestation cases.  Which is what's going to happen unless the Court depublishes this one.  Since trial courts will otherwise read the Court of Appeal's opinion and modify the CACI accordingly in light of that ruling.  To the serious detriment of defendants and (in my view) to the equitable rule of law.

I agree with the vast majority of opinions I read.  (And the overwhelming majority of those are thus not worth any comment on my end.)  I disagree with some opinions, and try not to be shy about my honest take on those.

A very, very few opinions fall into the category of those as to which I both strongly disagree and find them exceptionally important.

This is one of them.

Wednesday, September 16, 2015

Grace v. Mansourian (Cal. Ct. App. - Sept. 15, 2015)

I always tell my students that requests for admission are valuable tools that should be propounded far more than they are.  But I also tell them that it's incredibly rare for courts to actually impose cost of proof sanctions at the end of trial, both because most cases settle and because judges are reluctant to actually impose them.

Today's case proves the latter point.  But it's also incredibly valuable, because the Court of Appeal reverses, holding that the trial court abused its discretion by not imposing cost of proof sanctions, and that this was true even in a he said/she said case of "who ran the red light".  The fact that an issue was actively disputed at trial, and even the fact that there might have been "substantial evidence" in favor of both sides of the dispute (e.g., that would preclude summary judgment), doesn't matter.

That's a great -- and rare -- holding.  You should cite it often.  Both when requesting cost of proof sanctions and when threatening the other side with 'em.

U.S. v. Rosales-Gonzales (9th Cir. - Sept. 16, 2015)

Guadalupe Rosales-Gonzales was previously deported but was in the United States, so the United States charged him with this offense.  The parties struck a deal and jointly requested that he be given ninth months in prison.

The district judge, Larry Burns (down here in San Diego), had some "preliminary thoughts" on the deal.  Namely, that it was absurd.

Judge Burns first wanted to know why the deal was to give defendant nine months in prison when he had been previously convicted of this same offense and given 14 months in prison.  Shouldn't your second offense at least subject you to more time than the first?

That made sense to the government.  Or at least they realized the likely futility of arguing otherwise.

So the U.S. decided to ask for 15 months rather than 9.  One more month than the guy got last time.

But Judge Burns still wasn't satisfied.  Even with the extra month.  And wanted to know why 15 months was an appropriate sentence for someone who'd been deported 35 times.

To which the U.S. could respond only that the defendant had quickly entered a guilty plea, waived all appeals, and efficiently resolved the matter.  So from the government's perspective, 15 months was an appropriate sentence.

Judge Burns nonetheless sentenced Mr. Rosales-Gonzales to 27 months.

Defendant appealed.  But the Ninth Circuit affirms.  Sentence recommendations aren't binding.  A district court don't have to follow a fast-track deal.

Makes sense to me.

Tuesday, September 15, 2015

People v. Nelson (Cal. Ct. App. - Sept. 15, 2015)

You can be found guilty of soliciting someone to kill your future ex-wife.  Even if you're merely asking someone to find a hit man for you, and even if you subsequently back out of it.

Something that Eric Nelson will get to think about for the next eight years.

AP-Colton LLC v. Ohaeri (Cal. Ct. App. - Sept. 15, 2015)

I love it when the Court of Appeal makes my job incredibly easy.  Especially on a rainy day in San Diego.

Justice Ramirez tells you everything you need to know in the first three paragraphs of this opinion.  Just look how crisp, clean, and comprehensive those paragraphs are:

"Defendants Charles and Stella Ohaeri (Ohaeris) leased space for a thrift store in a shopping center owned by plaintiff AP-Colton LLC (AP-Colton). The thrift store was not a success, and the Ohaeris stopped paying rent. According to the Ohaeris, AP-Colton had fraudulently induced them to enter into the lease by stating that a church was going to move into the space next to theirs, but a competing store moved in instead.

AP-Colton originally filed the case as a limited civil action, in which damages are limited to $25,000. The Ohaeris filed a cross-complaint seeking more than $25,000, but they did not pay the $140 fee required to reclassify the case as an unlimited civil action. Thereafter, AP-Colton filed an amended complaint seeking more than $25,000; as the Ohaeris should already have paid the reclassification fee, AP-Colton did not pay it. After a bench trial, the trial court rejected the Ohaeris’ fraud claims and awarded AP-Colton $126,437.25.

The Ohaeris now contend, among other things, that the case remained a limited civil action, and thus, the trial court erred by awarding damages of more than $25,000. We do agree that the case should have remained a limited civil action. The Ohaeris, however, took the position below that the case had become an unlimited civil action, and the trial court accepted this position by awarding AP-Colton damages in excess of $25,000; we will hold that, as a result, the Ohaeris are judicially estopped to deny that the case was an unlimited civil action. Accordingly, on condition that it pays the $140 reclassification fee, AP-Colton can recover the full award."

How awesome of a summary is that?


Monday, September 14, 2015

U.S. v. Myers (9th Cir. - Sept. 14, 2015)

This is an important opinion.  That may well not get nearly the judicial attention that it deserves.

The question presented is whether you can have a consensual settlement conference with a magistrate judge in a federal criminal case.  Those familiar with the criminal side may say:  "How is that actually a question?  There are settlement rules in tons of federal courts that expressly allow this practice, and the Ninth Circuit has repeatedly held that this practice is okay."  And that's exactly right.  Whereas the federal judge who's in charge of your case can't participate in plea negotiations (since there's too great of a risk of coercion), the Ninth Circuit has long held that it's perfectly okay for a different judge to act as a mediator and to try to see if the parties can't work out a mutually beneficial deal.

But today, the Ninth Circuit says that's no longer the rule.  No judicial involvement in plea deals.  Not even with "neutral" (non-involved) judges.  Period.

Personally, I'm agnostic about whether settlement judges in federal criminal cases are a good idea.  I am definitely against the involvement of the judge in the particular case being involved in negotiations -- that's way too dangerous, since the defendant (and/or prosecutor) might think that if she refuses a proposed deal that the judge says is a good one the judge might take it out on them at trial and/or at sentencing.  But a "neutral" judge that's otherwise not involved at all in the underlying case?  That's a different situation.  Maybe it's a good idea, since those judges have expertise and can help the parties settle.  But maybe it's still a bad idea, since there might still be the fear of coercion in other cases; e.g., in other cases the prosecutor or public defender may have in front of this judge.

In short, I'm not at all sure what the right rule should be.  I can see very plausible arguments on both sides.

But the Ninth Circuit holds today that the rule is that judges categorically can't be involved.  In an opinion that may well be subject to substantial doctrinal critique.

For one thing, there's this little thing called circuit precedent.  The Ninth Circuit has repeatedly held that settlement conference precisely like the one that transpired here are perfectly okay; moreover, that such conferences don't violate Rule 11(c)'s command that the federal court not be involved in any plea negotiations.  Judge Murguia's opinion says that these cases are inconsistent with the subsequent 2013 holding of the Supreme Court in Davila.  When I first read today's opinion, Judge Murguia's interpretation of that case seemed right.  But when I then actually went and read Davila, I'm not at all certain that Davila actually justifies the panel's non-en banc departure from circuit precedent.  If only because Davila's discussion of the issue is not only way dicta, but is also world's apart from what's at issue here.

In the present situation, we're dealing with (1) a settlement conference, (2) that everyone attended, and (3) was conducted pursuant to a district court rule.  By contrast, in Davila, the magistrate judge simply sua sponte pulled in the criminal defendant in an ex parte proceeding and essentially told him that he'd be better off pleading guilty than going to trial.

In that setting, the United States admitted that the judge's conduct was improper.  And the Supreme Court accepted that (undisputed) concession, noting that "the prohibition [in FRCP 11] was included out of concern that a defendant might be induced to plead guilty rather than risk displeasing the judge who would preside at trial."  (Remember:  We're not talking in the present case about involving the judge who would preside at trial.  We're talking about involving a totally unrelated judge.)  And then the Supreme Court's opinion went on to discuss the only issue on which it actually granted certiorari:  whether a violation of Rule 11 was structural error requiring automatic reversal.  ("We granted certiorari to resolve a Circuit conflict concerning the consequences of a Rule 11(c)(1) violation.")

That's what Davila was about.  The introductory two paragraphs on page 7 of that opinion that discuss the history of Rule 11 and why we (rightly) don't allow the trial judge to participate in plea negotiations don't seem dispositive of whether we should allow some other judge to do so.  Now, in Davila, it wasn't the trial judge who pulled in the defendant -- it was a magistrate judge.  But the fact that the Supreme Court accepted an admission that this was improper, and then held that this did not require reversal, hardly to me seems to require that a panel in the Court of Appeals to invalidate circuit precedent that says that formal settlement conferences in front of neutral judges are okay.  I could easily see a judge saying that one of these things was not okay whereas another was just fine.  Particularly given the factual contexts in which these two issues presented themselves; e.g., the clearly non-coercive judicial conversation at issue in the present case versus the very different types of judicial statements at issue in Davila.

So, as a matter of precedent, I'm not sure that today's opinion is on incredibly solid footing.  I think there's a very decent argument that the panel wasn't free to depart from what the Ninth Circuit has repeatedly said is the right rule.

Moreover, as a matter of text, I also don't think that Judge Murguia's opinion is entirely bulletproof.  She says that the prior Ninth Circuit cases didn't "address, much less resolve, the conflict between the plain language of Rule 11(c)(1)—which categorically prohibits “[t]he court” from participating in plea negotiations—and the local rule’s allowance of judge-led criminal settlement conferences."  Put to one side that these cases nonetheless approved the practice at issue as consistent with Rule 11 and drew the longstanding distinction (at issue here) between involvement of the trial/sentencing judge versus a "neutral" judge.  Simply as a matter of textual interpretation, I'm not so sure that Rule 11 is nearly as "plain" as Judge Murguia reads it.

Today's opinion says that Rule 11(c)(1) is crystal clear since it prohibits "the court" from engaging in any plea negotiations.  Judge Murguia then says that this phrase unambiguously applies to the judge here since Rule 1(b)(2) defines "court" as including a federal judge performing any judicial function and Rule 1(b)(3) says that includes magistrate judges.

Fair enough.  But I'm not sure that the word "court" is really the one that's at issue.  Rather, it seems to me that we're focusing on what Rule 11 means when it says that "the" court isn't allowed to be involved in plea negotiations.  Does "the" court refer to the trial court (i.e., the trial/sentencing court), which is the distinction that prior circuit precedent draws, or does it merely mean "any" court (i.e., even the otherwise uninvolved magistrate judge)?  That's the relevant textual issue.  And there's no definition anywhere of the word "the".

(Oh, and for what it's worth, the Federal Rules of Criminal Procedure use the phrase "a court" rather than "the court" in about a dozen or so different rules, including Rules 12, 32.2, 49, and 56, making it at least plausible to argue that when the rule makers wanted to preclude any court from doing a certain thing, they knew perfectly well how to do so, and that there's a textual distinction been "the" court and "a" court doing a particular thing.)

Remember that we're talking about whether the panel was permitted to overrule circuit precedent here.  That seems a very sticky wicket, especially since the proper resolution of this issue is (despite Judge Murguia's textual and precedential analysis) far from clear.

So why do I think this very important case -- one that'll strike down formal settlement programs in the Northern District of California and elsewhere -- might not get the judicial attention it may well deserve?  Two reasons.

One, the composition of the panel.  The opinion is unanimous.  It's written by Judge Murguia and joined by Judges McKeown and Friedland.  That's a credible bunch.  As well as three votes of active judges presumptively against en banc review.

Second, and perhaps even more importantly, because the case here comes out against the defendant.  The panel holds that the judicial involvement of the magistrate judge here was error -- and hence district courts will have to dismantle their criminal settlement programs -- but that the error here did not prejudice this defendant's substantial rights because he knowingly participated in the process and indeed benefited from it.  Hence his conviction is affirmed.

Given this result, who's going to petition for rehearing en banc or seek of writ of certiorari?  Sure, the defendant might, claiming that his rights were indeed violated, but that's going nowhere.  By contrast, the United States might be seriously unhappy with the Rule 11 holding, but they won, so a petition by them may not get nearly the traction that one might otherwise receive were they actually to have lost the case.

Sort of a Marbury v. Madison type of thing.  Effectively unreviewable notwithstanding the fact that review is possible.

A very important case.  One that affects a ton of criminal cases.

We'll see what -- if anything -- happens to the opinion from here.

Wabakken v. California Dep't of Corrections (9th Cir. - Sept. 14, 2015)

Usually when the Ninth Circuit lists the counsel for the parties, it includes the lawyer's name followed by his or her firm.  But here, counsel for appellant is listed simply as "Derek T. Anderson, Attorney at Law."

The unadorned name doesn't matter, though.  He wins.

Friday, September 11, 2015

In Re Landmark Fence (9th Cir. - Sept. 11, 2015)

Judge McKeown is right in this bankruptcy appeal.  There's no appellate jurisdiction here.  The case isn't over.  There's no final judgment.  So the appeal is properly dismissed.

Judge McKeown is also a bit snarky about the inexplicable delay in being told by the parties that the underlying bankruptcy petition had been dismissed seven months prior to the scheduled oral argument in the Ninth Circuit.  But this snark seems justified.  I'd be snarky too.  And do the same thing that she (and the rest of the panel) do:  dismiss the appeal and leave the mootness issue for resolution by the lower courts.  They can sort it out.

One more thing.  Isn't it ironic that the first sentence of the legal analysis in Judge McKeown's opinion reads:  "Although both parties urge us to decide this appeal on its merits, “[i]t needs no citation of authorities to show that the mere consent of parties cannot confer upon a court of the United States the jurisdiction to hear and decide a case.'"  And then cites a case.

Grupp v. DHL Express (Cal. Ct. App. - Sept. 11, 2015)

Sometimes the California Supreme Court wants the Court of Appeal to reconsider its opinion.  So it does.

And sometime this is what the Court of Appeal says:

"We filed our original opinion in this matter on April 11, 2014, and affirmed. Subsequently, the Relators petitioned our Supreme Court for review, and that petition was granted. On May 20, 2015, our Supreme Court transferred review of the matter to us under California Rules of Court, rule 8.528(d) with instructions that we reconsider our prior opinion in light of People ex rel. Harris v. PAC Anchor Transportation, Inc. (2014) 59 Cal.4th 772 (Pac Anchor). After considering Pac Anchor, we conclude it has no application here, and again affirm the trial court’s order."

Your turn, California Supreme Court.

Thursday, September 10, 2015

Shirley v. University of Idaho (9th Cir. - Sept. 10, 2015)

Plaintiff says X in his original complaint.  Plaintiff subsequently amends his complaint to say Y.

The district court thinks that Y (the allegation in the amended complaint) is inconsistent with X (an allegation in the original pleading), so dismisses the lawsuit.

The Ninth Circuit summarily reverses.  Holding that factual allegation Y is not, in fact, inconsistent with factual allegation X.

But what if it was?

On that -- admittedly irrelevant (at least here) issue -- both Judge Canby and Judge Kozinski want you to know their views.  (While Judge Schroeder, who was also on the motions panel, exercises her right to remain silent.)

There's a prior Ninth Circuit opinion (PAE) that says you can't dismiss an amended complaint merely because it contradicts an earlier complaint.  But there's a different prior Ninth Circuit opinion (Reddy) that says that a complaint can be dismissed with prejudice -- i.e., without leave to amend -- if any amended complaint would (impermissibly) contradict the allegations of the original complaint.

Judge Canby thinks those two cases are inconsistent.  Judge Kozinski, by contrast, thinks those two authorities are consistent.

So both of 'em write a concurrence that explains their respective views of precedent.

Despite the fact that everyone agrees that this dispute doesn't matter in the slightest in the present case.  In which the competing allegations in the various complaints do not, in fact, contradict each other.

It's an interesting dispute.  And since Judges Canby and Kozinski think it's valuable to express their views, I'll tell you mine.

Judge Kozinski's a little bit right that the cases are doctrinally distinguishable.  He says -- correctly -- that the PAE line of cases holds that you're not allowed to dismiss a complaint on the ground that it contradicts an earlier complaint because there's simply no rule that authorizes such a dismissal.  On this point, he's right.  You can look at every page of the FRCP and you're not going to find such an express provision.  Sure, you might be sanctioned under Rule 11 or the like.  But there's no rule that expressly authorizes the actual dismissal of a complaint on the grounds of a factual contradiction.

By contrast, Judge Kozinski says, there is a rule that says that you're not required to grant leave to amend when an amendment would be "futile".  That rule, Judge Kozinski says, is why a court is not only allowed to, but must look at the prior complaint to see if any future amendment would plausibly articulate a claim.  'Cause leave to amend is required unless amendments are futile, and amendments are futile if they will contradict a prior allegation.  That explains the Reddy line of precedent.

Hence, Judge Kozinski says, the two situations are distinguishable.

And he has a point.

Judge Canby, by contrast, thinks those two lines of precedent aren't rationally distinguishable.  And he has a pretty darn good point as well.

Let me articulate Judge Canby's point in a way that's a bit more expansive than the way he puts it.  (A feat that's necessary in part because Judge Canby's four-paragraph concurrence doesn't really explain his conclusion apart from pointing out -- correctly -- that the two lines of cases seem darn similar and are facially contradictory.)  Here's how I'd put it:

The best argument for inconsistency, in my view, is that it makes absolutely no sense to say that a court must accept an amended complaint that contradicts the original complaint -- i.e., isn't allowed to dismiss the amended complaint on grounds of inconsistency -- and yet is simultaneously allowed to stop the amended complaint from ever being filed in the first place on precisely such inconsistency grounds.  Judge Kozinski admits that Ninth Circuit precedent (Reddy) says that a district court can prevent a party from contradicting itself by finding that an amended complaint would contradict the original complaint and hence be "futile" -- thereby dismissing the original complaint without leave to amend and with prejudice.  Well, if it's permissible to stop the filing of a contradictory complaint in the first place, then why can't you dismiss that same complaint once it's filed?!  A regime that said (1) we can -- and affirmatively want to -- stop people from filing contradictory complaints in the first place, and a district court can permissibly do that, but (2) once a contradictory complaint is filed, we have to let it go forward; well, such a regime would make no sense.  It'd be intellectually incoherent.  The justification for (1) would be inconsistent with the justification for (2).

It'd be -- ironically enough, given the topic -- inconsistent for the judiciary to so hold.

Now, Judge Kozinski might perhaps respond:  "Hey, dude, I just enforce the rules, I don't make 'em.  The FRCP says you can dismiss a lawsuit in (1), but doesn't say you can do it in (2).  I'm not saying that necessarily makes any sense.  But that's what it says, so that's what I'm doing.  Your beef is with the Supreme Court and Congress if you want the FRCP as a whole to make sense."

That's a plausible response.  But it only goes so far.  For two reasons.

First, there are lots of procedural rules that we routinely apply that aren't in the FRCP.  Judicial estoppel, for one.  Tons of others.  So I'm not at all sure you can't say that just like you apply those common law rules to authorize dismissal of complaints, a similar common law rule doesn't authorize dismissal in cases where the amended complaint contradicts the original.  See, e.g., dismissals based on judicial estoppel.  Oh, and, by the way, among the other common law requirements that we impose is the rule that Judge Kozinski applies regarding futility.  Look in the entire FRCP.  You won't find the word "futility" once.  It's a common law gloss on what it means for "justice" to either allow or disallow amendments.  It's a judge-made rule.  If that's a judge-made rule against inconsistency in proposed amendments, and you're fine with that, it seems like we can be equally fine with a similar judge made rule against inconsistency in actual amendments as well.

Second, we are interpreting words here.  Namely, in situation (1), the meaning of the word "futile" (albeit in the context of what that means for a judge-made doctrine).  Because if you really thought that parties were allowed to actually file amend pleadings that contradicted their original complaint -- e.g., that a court was not allowed to dismiss such pleadings -- then it wouldn't be "futile" to allow such an amendment, now would it?  And yet Reddy says that it is "futile" to allow amendments that would contradict the original pleading.  It's "futile" only if that contradictory amendment would be dismissed.  Yet PAE says that such a contradictory amendment cannot, in fact, be dismissed.

Doesn't make sense.

Plus, wholly apart from the logical, doctrinal, and policy-based inconsistencies, there's a practical one as well.  Which rule applies when?

Judge Kozinski would say that Reddy applies when a court dismisses an original complaint and is "thinking" about a "hypothetical" amended complaint.  That's when you can permissibly reject those complaints that would contain contradictory allegations.  Whereas, according to Judge Kozinski, when the amended (contradictory) complaint has already been filed, there's nothing you can do about it (or at least, even if you can sanction it, you can't dismiss it).

But what about when -- as in the present case -- there's an existing original complaint and the plaintiff asks permission to file an amended complaint.  Hasn't yet.  Is asking (as often required by Rule 15) to file it.  What rule?  Presumably now there's a text (Rule 15) that says that a court can refuse to allow such an amendment, so those things get bounced, right?  Yet doesn't it seem totally bizarre to say that an allegation filed on Day 21 (e.g., as a matter of right) goes forward, even though totally belied by the original pleading, and yet that same allegation filed on Day 22 (e.g., when leave of court is required) gets categorically bounced.  As well as that an allegation filed on Day 22 can't be bounced if the adverse party has stipulated to it (e.g., no permission is required).

Not that Judge Canby's view doesn't have distinction problems of its own.  For example, let's say that the original complaint says that a tort transpired on December 7, 1941 (a date outside the limitations period), but the amended complaint says it instead transpired on December 7, 2014 (which would be inside it).  Absent a darn good explanation (e.g., a typo), a consistent view of inconsistency would say that the amended complaint gets bounced because it contradicts the first.

But what if the situation was reversed; e.g., the original complaint says December 7, 2014 but the amended complaint says 1941?  Are we really going to say that the guy can't amend his complaint because it contradicts the first?  And what's the remedy:  Do we bounce the entire dispute, or do we simply let the first complaint go forward?  (Assume that the guy here has an absolute right to amend, so permission isn't required, and the second "automatically" displaces the first.  Is there dismissal of the second complaint on inconsistency grounds and then that's it?  Seems like it.  Even though what we'd really want to do, if justice is our goal (and it is), is to go back to the first.)

So here's where I come out:

Judge Kozinski is right that you can ostensibly distinguish the two cases.  In the same way that you could distinguish the two cases by saying:  "Well, in one case, the plaintiff's name was an acronym, and in the other case, he had an actual spelled-out name."  In short, yeah, you could distinguish the two cases, but that distinguishing characteristic would make no sense.  It wouldn't create a good or principled rule.  The principle that motivates the one set of cases is intellectually inconsistent from the result in the second group of cases."

Which is a bit more like Judge Canby's position.

So, in the end, we have an interesting -- albeit entirely unnecessary (in the context of the present case, anyway) -- dispute.

One that may well matter in a ton of cases.  And that we'll eventually have to, or at least should, get right.

Wednesday, September 09, 2015

People v. Mendoza (Cal. Ct. App. - Sept. 2, 2015)

The evidence that Mr. Mendoza molested a kid is fairly overwhelming.  So he's convicted of that.

The evidence that he "possessed child pornography," by contrast, is incredibly slim.  The mother of the molested child says that she broke into his Facebook account (where images from his cell phone were, she says, automatically backed up) and saw two pictures of him molesting her child, which she says she immediately deleted.  But Facebook can't find them anywhere (because deleted images are "forever deleted") and even a detailed forensic examination of Mr. Mendoza's phone and other records can't find any evidence whatsoever that such pictures were ever taken.

But the mother says she saw them, and the Court of Appeal says that alone is sufficient proof beyond a reasonable doubt.  A jury can believe a witness if it wants even if we'd expect computer forensics to find deleted images but doesn't.

So Mr. Mendoza gets a total sentence of 67 years to life.

The Court of Appeal's right that you don't need direct evidence of a crime and that credibility questions are for a jury.  Mr. Mendoza is right that it's incredibly unusual to be found guilty of child pornography when there are no actual pictures put into evidence, especially when the computer people say there's no physical evidence they were actually ever there either.

But, unfortunately for Mr. Mendoza, given the overwhelming evidence against him on the molestation counts, I'm fairly confident his plight does not create overwhelming sympathy for his legal position in the Court of Appeal.  Or anywhere else, for that matter.

Tuesday, September 08, 2015

Harkonen v. U.S. Dep't of Justice (9th Cir. - Sept. 8, 2015)

Here's a great example -- both doctrinally as well as normatively -- of how Chevron deference works.

The U.S. Department of Justice issues a press release about Dr. Harkonen.  Dr. Harkonen asserts that the press release contains demonstrably false information about him.  He finds a statute that says that federal agencies are required to develop effective administrative procedures "allowing affected persons to seek and obtain correction of information maintained and disseminated by the agency."  So he asks the DOJ to remove the false information about him, or at least allow him an administrative procedure to try to prove that the stuff is false.

But the DOJ says that its press releases are categorically exempt from the statute because they don't really count as "information . . . disseminated by the agency."  So it tells Dr. Harkonen to pound sand.

The Ninth Circuit agrees.

The statute's ambiguous.  An agency (OMB) is entrusted with interpreting it.  It has done so.  While perhaps erroneous, its construction is at least reasonable.  End of story.

That's how Chevron deference works.  A concise little opinion by Judge Noonan explains it.

Friday, September 04, 2015

Mak v. City of Berkeley Rent Stabilization Bd. (Cal. Ct. App. - Sept. 2, 2015)

Jason and Karen Mak own four apartment units in Berkeley.  They want to raise the rent, but there's a problem.  Their tenant, Elizabeth Burns, has lived in the unit for 28 years.  So they want her out and a higher rent.

Not surprisingly, however, Berkeley's rent control ordinance doesn't allow that.  So they figure out a workaround.  They'll evict her and say that one of the owners (Jason) wants to live there.  That's an okay reason to kick her out under the ordinance.  So they give her a 60-day notice.

But there's one problem.  Once you serve a 60-day notice, and kick the tenant out, you can't then raise the rent (for a period of time, anyway) if the owner does not, in fact, take over the unit.

But the Maks have a workaround for that as well.  They strike a deal with the tenant.  They'll give her some compensation (e.g., free rent) and she'll agree (1) to vacate the unit, and to (2) deem the 60-day notice withdrawn.  Which will mean that, she's she's "voluntarily" left the thing, the Maks can raise the rent to where they want.

Good for everyone.

Except the Court of Appeal sees through this "transparent attempt to circumvent the provisions of local rent control provisions."  Affirming the trial court's decision that these machinations don't work and that the rent remains controlled.

That's surely the right rule.  But don't think that the Court of Appeal's holding here really solves all that much.  It merely slightly moves the statutory inflection point.

All the Maks had to do (in my view) to make this scheme work was to strike a deal with the tenant before the 60-day notice went out.  They just show up and say:  "We want to kick you out and raise the rent, and you want money/free rent.  So -- in the words of Monte Hall -- 'Let's Make a Deal.'"

If that happens, everyone wins.  (Except the City and future tenants, of course.)  The tenant leaves the apartment "voluntarily" and the rents effectively get raised.

The only thing it requires is slightly more sophisticated planning.  Strike the deal before the 60-day notice rather than after.

Same result.

In academia, we all this "regulatory arbitrage".  If there's a statute that obtains a certain public benefit, parties can usurp for themselves this benefit by arbitraging the statutory dictates.  That strategy works in a number of regulatory settings.

Including here.  At least if you're smart about it.

So good job Court of Appeal.  Just remember that you haven't actually solved the problem.  You've merely moved the strategy up in time a tiny bit.

Thursday, September 03, 2015

National Council of La Raza v. Cegavske (9th Cir. - Sept. 3, 2015)

Is Judge Jones becoming the new Judge Real?

Three civil rights organizations claim that Nevada isn't following the National Voter Registration Act of 1993.  That statute creates a private cause of action, and plaintiffs have some pretty good evidence that Nevada isn't, in fact, doing what the statute requires.  (For example:  Plaintiffs "showed that the number of voter registration applications submitted to Nevada public assistance offices “decreased precipitously”—by 95% from 2001–2002’s high point to 2009–2010’s low point—despite a four-fold increase in the number of food stamp applications during this period. Second, the letter cited U.S. Census Bureau data from 2010, which showed that only 47.6% of low-income Nevadans were registered to vote, compared to 72.4% of high-income Nevadans. Third, the letter presented the results of field investigations Plaintiffs conducted in December 2011, approximately five months before they sent the letter. Plaintiffs’ investigators visited Nevada public assistance offices and surveyed the clients and clerks of thoseo ffices. They discovered that clerks in seven of nine offices they visited provided voter registration application forms only to people who affirmatively requested them. Office staff indicated that this was “standard procedure.” Of the clients surveyed, only one out of the five who affirmatively requested a voter registration application form received one. Two of the nine offices did not have voter registration application forms at all. Only nine out of the 51 clients surveyed received voter registration application forms with their benefits applications or other forms. Only two of nine sites displayed the notifications required by state law.")

So plaintiffs sued.  Following, as they were required to do, the various administrative prerequisites to such a lawsuit.

The district court nonetheless dismissed the lawsuit.  Virtually sua sponte.  Doing so in a series of maneuvers that, at a minimum, are unusual, and -- to some viewers, no doubt -- outright bizarre.

I shan't describe in detail all that transpired in Judge Jones' courtroom.  For that, you'll have to read the entire opinion.  But, in the end, the Ninth Circuit not only reverses Judge Jones, but assigns the case to a different judge on remand.  Saying:

"The reasons for our conclusion are apparent from what we have written above, and we review them only briefly here. The judge sua sponte sought to limit the effectiveness of representation by insisting unreasonably that only two of Plaintiffs’ chosen out-of-state attorneys be given pro hac vice status. [Citation]. The judge did this despite the plea of Plaintiffs’ Nevada lawyer that he needed the expert assistance of out-of-state counsel who specialize in NVRA litigation, and over the objection of one of the would-be out-of-state counsel that the judge’s ruling would prevent depositions from being taken in Nevada by associates in his firm. The judge’s actions came very shortly after the Ninth Circuit had deemed “troubling” his comments regarding out-of-state counsel in another case involving a different Nevada agency. [Citation]. Based on this and other cases, a reasonable observer could conclude that the judge’s feelings against out-of-state attorneys are both well-established and inappropriately strong. See Great Basin Res. Watch v. United States Dep’t of the Interior, No. 3:13-CV- 00078-RCJ, 2014 WL3697107, at *3 (D. Nev. July 23, 2014) (this same judge expressly stated he would “presume[] that the out-of-state lawyers are unwilling to obey the ethical strictures that govern all other attorneys”). Further, the judge sua sponte and without notice dismissed Plaintiffs’ case based on a motion the State had previously withdrawn, pursuant to a joint stipulation by the parties. Still further, the judge misread the complaint when he concluded that Plaintiffs had failed to allege that they had changed their behavior and had thus suffered no injury, when Plaintiffs had alleged that they had expended additional resources on voter registration as a result of the State’s violation of Section 7. Finally, the judge dismissed the complaint without leave to amend despite Plaintiffs’ explicit request that they be allowed to amend their complaint if the judge found its allegations insufficient."

That's a pretty telling indictment of the district court's conduct.  As is the assignment to a different judge.

And it's not the first time, either.

Maybe it's just Judge Jones' distaste for out-of-state lawyers that's the problem.  Or maybe there's a larger problem here as well.

But today's opinion suggests, at a minimum, that there's a problem.

One that hasn't -- and likely won't -- go away.

Wednesday, September 02, 2015

Sequeira v. Lincoln National Life Ins. Co. (Cal. Ct. App. - Sept. 1, 2015)

There are plenty of people in this world who hate insurance companies.  Absolutely hate 'em.  Think they're abusive, sleazy, money-grubbing bastards.

I'm not one of those people.  As a whole, I think the industry's no worse -- and no better -- than other business lines.  Sure, companies want to constrain costs, so aren't looking to pay out money to others when they can avoid it.  But that's true for pretty much everyone.

Admittedly, insurance companies often deal with people in vulnerable situations; their spouse has just died, they're in the hospital, etc.  So we might want to them to be a bit more compassionate than your average business.  But I'm not in the "Insurers Are Evil" camp.  Far from it.

Except for here.

In my view, what the Lincoln National Life Insurance Company did here is classic example of why many people absolutely hate insurance companies.  Because their decision here was intolerable and unacceptable.

Donald Sequeira was a long-time employee with the City of Vacaville.  In the fall of 2009, the City changed its life insurance carrier to Lincoln National.  So in October 2009, Mr. Sequeria filled out an enrollment form for $275,000 of basic life insurance and submitted it to Lincoln National.  Lincoln National accepted the application and issued the policy.  Moreover, during 2009, Mr. Sequeria made two premium payments on the policy, and Lincoln National happily cashed his checks.

Then 2010 arrives.  January 1, 2010 was a holiday, so Mr. Sequeria didn't work that day.  The next day, January 2, 2010, he suddenly became ill, and died on January 6, without ever returning to work.

That's sad.  He leaves a widow, so the widow then seeks the $275,000 from the insurance policy that Mr. Sequeria purchased.

At which point Lincoln National tells her to go to hell.

It's not that Mr. Sequeria lied, or that his checks bounced, or anything like that.  And it's not even that there's a ton of money at stake.

But in language only a lawyer could love, with multiple subclauses and optional ("the latest of") dates, the policy technically says that Mr. Sequeria was only covered on the day he "resume[d] Active Work, if you are not Actively at Work on the day you become eligible."  And, in 2010, since Mr. Sequeria didn't work on January 1 -- since it was a holiday -- and didn't work on January 2 (since that's the day he became sick), and died promptly thereafter, ha!  No money.  The fact that the guy had worked two decades for the same company, was an active employee throughout the entire period, had paid multiple premiums for the policy, and didn't work in 2010 because the company wasn't open and then he was sick doesn't matter at all to Lincoln National.  They've got an excuse not to pay his widow the money she's due -- or at least they've got an argument not to pay -- so she's going to either get stiffed or have to pay a lawyer, and wait, and hope the courts decide her way in order get paid.  Oh, yeah, and in the meantime, she has to bury her dead husband.

Ultimately the Court of Appeal reverses the trial court and orders Lincoln National to pay.  Despite its hypertechnical argument -- which the trial court bought -- that ostensibly excused it from paying the proceeds of the insurance policy to the grieving widow.

So, ultimately, Mrs. Sequeria gets paid the money to which she's entitled.

But here's the thing.  She shouldn't have been forced to wait six years.  She shouldn't have had to fight an insurance company.  She shouldn't have been forced to pay a lawyer a healthy portion of the insurance proceeds at issue.

Lincoln National should have simply paid the $275,000.  It's a tiny amount of money, in the scheme of things, to the insurer.  It's for a long term employee who got sick on January 2, 2010, and died on January 6, 2010, for a life insurance policy designed to cover him in 2010.  Only the most heartless and/or ruthless insurer would try to screw a widow out of the life insurance for which she paid in a context like this one.

But that's nonetheless the course that Lincoln National elected.  From the claims adjuster at the bottom to the highest levels at Lincoln National at which this case was reviewed.

Okay.  Fine.  You can do that.

But when people hate you, and others like you, don't be surprised.  At all.

And they'll have a point.

People v. Vasquez (Cal. Ct. App. - Aug. 31, 2015)

Who needs me when you have Justice Gilbert, who write the following as the first two sentences of this opinion:

"The new owner of a house prepares to move in. She transfers utilities to her name, installs locks, leaves personal items in the house, paints an interior wall of the garage, and comes and goes during daytime hours narrowly missing defendant's two intrusions. Here we hold these facts are sufficient to establish her house is an inhabited dwelling for purposes of first degree burglary."

Pretty darn informative, eh?  Concise, too.

Tuesday, September 01, 2015

Michaels v. Turk (Cal. Ct. App. - Aug. 31, 2015)

I can tell you why the Court of Appeal decided to publish this opinion.  Indeed, I'll be blunt about the Court of Appeal's intended message:

"Trial courts:  PUT THE STIPULATION TO A COMMISSIONER ON THE RECORD.  We don't care that pretty much every family law case is, in fact, resolved by a commissioner, and that pretty much every single litigant is practically forced to stipulate thereto.  We also don't care that in both Riverside County and pretty much everywhere else, there are signs everywhere that say that your case will be heard by a commissioner unless you object.  YOU'VE GOT TO PUT IT ON THE RECORD.  Or else we're required to reverse."

Sage counsel.  Worthy of publication, even.