Friday, April 18, 2014

In Re Marriage of Metzger (Cal. Ct. App. - March 25, 2014)

I'm not sure who's at fault in this divorce case:  Tammy, Raphael, or both.  But it's long, expensive and seemingly full of vitriol.

Did I mention that Raphael's an attorney?  Who's representing himself?  Well, he is.

The parties end up having to pay $100,000 (!) -- with Raphael advancing the entire sum, and half charged to each party's share of community property -- in order to have another attorney (Eve Lopez) appointed as the attorney for their daughter.  Which, by coincidence, means that one Southwestern Law graduate ends up having to pay a ton of money to a more recent Southwestern Law graduate to represent his kid.

Divorce involving lawyers:  Unfortunately, not often pretty.

Thursday, April 17, 2014

Sheehan v. City and County of San Francisco (9th Cir. - Feb. 21, 2014)

It's not a good sign for the viability of a majority opinion when you can't even get Judge Graber to agree that the civil rights claim alleged by the plaintiff is viable.

I can see where Judge Fisher (joined by Judge Noonan) is coming from.  What the police did here was almost indisputably moronic.  They were called by a social worker to transport a woman in her mid-50s who was severely mentally disabled and in a group home for a 72-hour psychiatric hold.  When the officers entered this woman's room (without a warrant), the woman reacted violently, grabbed a knife, and forced the officers to retreat to the hallway.  At which point the door to the woman's room closed (it's unclear from the opinion if the officers did that or the woman did).  And the officers called for backup.

So far, that seems exactly the right thing to do.  Deescalate the situation.  Get backup.  Maybe get an expert to calm her down.  Maybe wait her out (there's no means of escape; she's stuck in her room).  Maybe get some shields or pepper spray or the like.  Worst that happens is that you get a lot of cops and some paramedics and tase her.

However, the officers then decided (1) not to wait for the backup they'd called, (2) to open the door, reenter the room and confront the knife-wielding woman, and then (3) to shoot her five or six times.  Nearly killing her.

Remember:  The sole reason the police were called was to transport this woman for a 72-hour hold.  A woman who they decided to shoot.

Not an awesome decision.  At all.

The majority holds that the officers' conduct may potentially have violated the woman's rights.  Judge Fisher holds that while the initial entry was proper, the officers' decision to reenter the room may well have violated the Fourth Amendment as a result of their use of excessive force.

Judge Graber can't get on board for this.  She partially dissents.  Agreeing with the rest of the opinion (on some subsidiary claims), but dissenting from the Fourth Amendment holding.

I have little doubt -- exceptionally little -- where the Supreme Court would come out on this.  And if Judge Graber can't agree with the majority's excessive force analysis, I think that's a pretty good indication of where a majority of the Ninth Circuit probably would come out.

Which means that even though this is a very fact-specific case, there's a pretty good chance of this opinion not persisting.  Rehearing.  Rehearing en banc.  Certiorari.  More likely than not, one of those three (if not more than one) is where this one's headed.

Wednesday, April 16, 2014

NRDC v. Jewell (9th Cir. - April 16, 2014)

Back in July of 2012, the Ninth Circuit decided an environmental case involving the delta smelt.  Judge Hug wrote the majority opinion, and Judge Paez dissented.

The dispute was over standing.  Judge Paez began by saying "I respectfully dissent."  Judge Hug affirmed the decision of the district court.  No vitriol.  No nasty names.  Surely reasonable minds can differ, right?

Perhaps.  But the Ninth Circuit took the case en banc.  And today, it issued its opinion.

11-0.  Reversing the district court.

Sometimes the panel simply gets it wrong.

Hopkins v. Kedzierski (Cal. Ct. App. - April 16, 2014)

What do you think about this one?

Plaintiff gets injured at work.  She files a worker's compensation claim against her employer and receives benefits.  Later, she files an application for additional worker's compensation benefits.

She subsequently files a lawsuit against her employer, but only after the statute of limitation for such a suit has expired.

Was the limitations period tolled while she applied for (or received) worker's compensation benefits?

On the one hand, it's generally true that a pending action can toll the limitations period.  After all, once the defendant knows you're suing them, they've got notice, so can adequately defend a subsequent action.

On the other hand, equitable tolling of this nature generally consists of an unsuccessful earlier suit.  So, in the typical case, plaintiff filed X lawsuit, it got dismissed (e.g., for jurisdictional reasons), and then plaintiff files a different suit.  By contrast, here, plaintiff won.  She got benefits.  So why toll the limitations period?

Plus, with worker's compensation claims, the payment of benefits -- or (as here) a request for additional benefits -- can happen over a decade or more.  Does the limitations period really get tolled during this entire period?

The Court of Appeal says it might.  Justice Aaron concludes that equitable tolling may apply even to a successful claim for worker's compensation benefits, and that while a virtually limitless tolling period might indeed exist, the fact that the defendant might suffer potential prejudice provides an inherent constraint on such a result.

I'm not completely persuaded.  There still seems to me the potential for lengthy tolling.  Plus, I'm just not sure why tolling exists in the first place.  The employer might not, for example, even care that (or object to) the employee receiving worker's compensation benefits.  So why should the filing for such benefits extend the period for filing suit?  It seems to me a distinction without a difference.  X gets injured at work and applies for benefits, which the employer is happy to provide.  Y gets injured at work and simply sues.  They sue on the same date.  Why does X's lawsuit go forward but Y's lawsuit is dismissed?  Especially when the need to compensate such parties somewhat conflicts with this result (since X has already been partially compensated by Y -- whose lawsuit is dismissed -- is not).

I understand the desire to extend limitations periods.  But I'm not sure that the application of traditional tolling principles applied to the filing of lawsuits really works as applied to the filing of applications for worker's compensation benefits.  We may be talking about apples and oranges here.  And saying -- as Justice Aaron does -- that some of the other limitations on equitable tolling might apply in particular cases doesn't entirely persuade me that we should nonetheless treat apples and oranges the same way.

Interesting case.  Important.  Potentially wrong.

Tuesday, April 15, 2014

Gallardo v. United States (9th Cir. - April 15, 2014)

What should you do with a Marine Corps sergeant who's court-martialed for allegedly assaulting three female members of the Corps?

I admit I'm not exactly sure.  But here's what I do know:  You should not simply transfer the person to a recruiting detail at a middle school.

Otherwise you get cases like these.

Whenever an opinion starts out with a Marine Corps sergeant allegedly asking a middle school student for her MySpace address, you know it's not going to turn out well.

In Re J.D. (Cal. Ct. App. - April 15, 2014)

Wait a minute.  Am I really reading this correctly?  A campus security officer at Richmond High School checks a student's backpack and finds a sawed-off shotgun?!

Yes.  Yes indeed.

There's a fight about whether the search of the locker in which the student's backpack was found was legal; that's the primary thrust of the appeal.  But you can probably figure out which way the Court of Appeal goes on this issue by the mere fact that the opinion by Justice Dondero contains references to Columbine, Sandy Hook, and Virginia Tech.

Sawed-off shotguns in high schools.  What a world.

U.S. v. Morris (9th Cir. - March 13, 2014)

Future historians wondering how we possibly could have gotten ourselves into the 2008 recession, sparked by the housing bubble, need look no further than the facts of this case.

Because here's what you were able to do back in the day:

"In 2007, Peter Morris applied for three loans from three financial institutions (Washington Mutual, Lehman Brothers, and Bank of America) to purchase three properties, all located at “Sonic Court” in Riverside, California. In the loan applications, Morris claimed securities and assets that he did not own, employment he did not have, and income he did not earn. He falsely stated that he was unmarried, was in the process of selling a different house, and was not obligated to pay child support. He supplied the three banks with false documents to substantiate these false statements. He also withheld information—for example, he did not tell any of the banks that he was applying for loans from the other two. All three banks approved Morris’s loan applications, and Morris purchased the three properties shortly afterward. When Morris made only one mortgage payment, two of the three banks foreclosed on their loans and sold the properties at a loss. Morris sold the remaining property in a short sale, at a loss to the third bank."

Yep.  That's what you're able to do when it's totally easy as a Bank to bundle and securitize the loans you make.  What the borrower's doing is a crime, of course.  But like you care.  That's someone else's problem.  You're making money at the outset.

Just remember:  Capital markets are ruthlessly efficient.  No imperfections.  No irrationality.

(*Sarcasm Alert*)

Monday, April 14, 2014

Global Hawk Ins. Co. v. Le (Cal. Ct. App. - April 14, 2014)

Jerry Le gets his Class A license and becomes a truck driver.  He goes to V&H Trucking which agrees to use him for "spot" jobs.  No benefits, no taxes, no social security -- just a 1099 and a lump sum for each job.

In late 2010, V&H uses Le for a job.  He's supposed to drive with a co-driver hauling goods from LA to New York, then to Georgia, then back to New York, then back to LA.  It'll take 10 days.  For which Le will be paid the princely sum of $1100.  Le takes the job.

Le and his co-driver do all the things.  Drive stuff from LA to New York.  Drive more stuff from NY to GA.  Drive additional stuff from GA back to NY.  They're now on the last leg of their journey, with a final load from NY back to LA.

At which point Le's co-driver crashes the truck.  Le's sleeping in the cab at the time.  Le's ejected from the vehicle and suffers serious injuries, including but not limited to a broken neck.  Vomiting blood, etc.  Not good.

Le eventually asks about getting paid for the trip, and maybe getting reimbursed for his medical care through worker's comp.  At which point V&H tells him to pound sand.  They say they're not paying for medical care because he's not an employee and so isn't eligible for worker's comp.

Oh, yeah,  V&H also refuses to pay him the $1100 for the trip.  Because he never "finished" the job once his co-worker crashed on the final leg and broke Le's neck.


Fortunately for Le, the Court of Appeal is more sympathetic to his plight than was V&H.  Justice Richman reverses the grant of summary judgment for V&H's insurance company against Le.

Jin v. Holder (9th Cir. - April 14, 2014)

It's the Ninth Circuit.  Which means it's impossible to lose an asylum case based upon the applicant's poor demeanor and lack of credibility.  Right?


Flores v. California Department of Corrections and Rehabilitation (Cal. Ct. App. - Feb. 27, 2014)

Guards find a "floater" in plaintiff's cell.  No, a "floater" is not what you might think.  It's a piece of property in cell that doesn't have a serial number that ties it to a particular cell.  So they confiscate it.

The prisoner files a writ.  Saying, essentially, "I want my [M]TV."  Because they took his television and will not give it back.

The Court of Appeal says that's not a proper use of a writ.  You've got to file a civil suit.

No floater for you.  At least for now.

Friday, April 11, 2014

U.S. v. Villalobos (9th Cir. - April 11, 2014)

Look at the mess that constitutes the disciplinary record of L.A. attorney Alfred Villalobos.  Ugly.

Today's Ninth Circuit opinion doesn't make him look any better.  Every member of the panel agrees that Villalobos was properly convicted of extortion and attempted obstruction of justice.  They just disagree as to why he's guilty.

But guilty he is.

For a guy admitted to the Bar on the last day of 1997, Villalobos has certainly had a colorful legal career.  Few of us can claim to have gotten into anything near as much trouble during our first 15 years of practice.

Drescher v. Gross (Cal. Ct. App. - April 11, 2014)

There's often something interesting when two attorneys fight out a divorce case in the Court of Appeal.  In this one, fortunately, there's not (seemingly) utter rancor.  But there is a dispute.  Thirteen years ago, when they divorced, the parties agreed to split the cost of college for their three kids.  Fair enough.

It's now time for their daughter to attend college.  She's going to the University of Missouri.  Prompting fights on both sides about (1) whether the agreement only requires Daddy to pay half of what it would cost for his daughter to enroll in a California school (not Mizzou), and (2) whether Mommy can get out of the deal by showing that she makes a lot less nowadays than Daddy.

I'll let you read the opinion itself to figure out how this particular case works out.  But I'll nonetheless note the resulting legal rule:  (1) parties can, if they want, structure a "college support" deal during dissolution disputes that's not subject to subsequent modification by the trial court for "changed circumstances" (unlike support for a minor child), but (2) they better be pretty careful about how they write this agreement, otherwise it'll be subject to modification.

P.S. - There are actually a lot of related attorneys involved in this case.  Mother is (former) attorney Lenore Drescher.  Represented by L.A. attorney Robert Drescher.  (Note the last names.)  Father is L.A. attorney Mark P. Gross.  Who, according to his firm bio, "has over 20 years family law experience," as well as a ton of accolades in the area.  But even he didn't write his own agreement in a way that would preclude trial court modification for changed circumstances.  Oops.  He's represented by the law firm of Brot & Gross.  (Note the last name.)

Lawyers, lawyers everywhere.

Only time will tell whether their daughter majors in prelaw at Mizzou.  Though my money's on her looking to some other professional field.

Thursday, April 10, 2014

Montague v. AMN Healthcare (Cal. Ct. App. - Feb. 21, 2014)

"AMN Healthcare . . . is a staffing company that provides prescreened nurses and medical personnel to hospitals and other facilities. Nursefinders hired Theresa Drummond as a medical assistant. It later assigned Drummond to work at a Kaiser facility as a medical assistant. Plaintiff Sara Montague was also a medical assistant at Kaiser. At some point, Drummond and Montague had a disagreement at work regarding how rooms were to be stocked. At the end of the discussion Montague walked away. Montague did not consider the argument serious enough to report to a supervisor or anyone else. They also had a discussion regarding misplaced lab slips where Drummond raised her voice. A few weeks after that discussion, Montague left her water bottle at work. Montague later drank from her water bottle. Her tongue and throat started to burn and she vomited. Drummond admitted that she poured carbolic acid found in a Kaiser examination room into Montague's water bottle."


Lesson of the day:  Be nice to co-workers who have access to poison at the office.

Horath v. Hess (Cal. Ct. App. - April 10, 2014)

Justice McDonald is right.  When parties agree to arbitrate with a "high-low" award (with no disclosure to the arbitrator), and the arbitrator awards a sum above the "high" range, the losing party doesn't need to move to "correct" the award within 100 days because there's nothing to "correct".  You simply pay the high amount.

The arbitrator didn't do anything wrong.  S/he deliberately wasn't informed that the parties had capped defendant's exposure to the "high" amount (in return for agreeing to a minimum "low").  But the parties have agreed that the "high" is the high.  So the proper remedy is simply to pay this amount.  At which point, pursuant to the agreement of the parties, the award has been satisfied.  Nothing more, nothing less.

The trial court (Judge Prager) gets it wrong.  The Court of Appeal does not.

I might add that I'd be interested to know whether counsel for the "winning" party below -- San Diego attorneys James McCabe, Robert Hamparyan and Jon R. Williams -- were also counsel for that same party below.  Because were I to have entered into an express high-low agreement with counsel for the other side, and then after the award was made, that attorney were to refuse to follow this agreement and accept payment of the stipulated high, I'd be pissed.  As well as exceptionally hesitant to trust the word of those attorneys in the future.

Even after I beat that attorney in the Court of Appeal.

As for the merits, know that you can simply pay an arbitration award even if it's outside of the high-low range.  Though, to avoid complexity, maybe just do it quickly.  No need to give the other side an opportunity to try to get more by falling outside the 100-day "correction" window and require you to go to the Court of Appeal.  Even if you're right.

Wednesday, April 09, 2014

Horiike v. Coldwell Banker (Cal. Ct. App. - April 9, 2014)

I'm not sure how the trial court could make such a basic error.  Everyone with even a rudimentary knowledge of real estate law knows that a broker owes fiduciary duties to his client.  So when a real estate broker serves as a dual agent for the buyer and seller -- even when a different salesperson with the broker represents each party -- that doesn't diminish the duty.  The broker owes the duty and each salesperson with the broker owes the duty.

How the trial court couldn't figure that one out is beyond me.  Regardless, it's not beyond the Court of Appeal.  Which reverses and remands.

The trial court granted a nonsuit on the ground that the broker couldn't be liable for the acts of the "seller's" salesperson that violated its fiduciary duty to the buyer, and gave similar jury instructions.  Not so.  To repeat:  Everyone's got a duty.

Sometimes your successful persuasion of the trial court simply imperils your subsequent victory in front of the jury.  That's exactly what happens here.

Gray1 CPB LLC v. SCC Acquisitions, Inc. (Cal. Ct. App. - April 9, 2014)

I love this opinion.  Love it.  Both because I can use it to give practical, concrete advise to attorneys and also because portions of that advice seem to bizarre.

First, the straightforward advice.  When you're seeking to enforce a judgment, and you're entitled to recover attorney's fees in enforcing that judgment, don't wait until the very end to request your fees.  Otherwise what transpired here may well happen to you.

Here, Judgment Creditor incurred over $3 million in fees trying to enforce a $13 million judgment against Judgment Debtor that the latter was going to great lengths not to pay.  Rather than requesting recovery of those fees as they were incurred, Creditor did what many attorneys do -- waited until the end of enforcement efforts to so move.  But the Court of Appeal hold here that's too late.  Once the judgment debtor fully pays the amount due, your fee request is untimely.  So you're out of luck.

So don't make the same mistake.  Occasionally file a motion to enforce your accrued enforcement costs.  A hassle, I know.  But essential in order to avoid getting zeroed out.

Second, the weird advice.  The Debtor here paid the $13 million due with a cashier's check.  Creditor held on to that check for several days and, in the interim, filed its motion to recover fees.  That doesn't work.  Too late.  Motion for fees untimely.  Even though you haven't yet cashed the check.

But here's what would work:  Reject the check.  Demand cash.

Even though the cashier's check was clearly valid, the Creditor was entitled under California law to reject the check and demand payment of the full $13 million in cash.  Despite the fact that this amount is absurdly large, and no way would demanding cash make sense.  Once it rejected the cashier's check, then Creditor could have filed its motion for fees (presumably during the period in which Debtor was trying to amass and arrange for delivery of $13 million in cash).  Then it'd have been timely.  And the creditor would have recovered another $3 million in fees.

Neat little trick.  Works, too.

So, weirdly, next time someone tries to give you a cashier's check for $13 million, think deeply about saying to them:  "No thanks.  I'd rather have cash."  Those simple words might get you several million additional dollars as well.

Huang v. Holder (9th Cir. - March 12, 2014)

It's true that the Ninth Circuit is a pretty favorable forum for those who seek asylum.  But the next time someone tells you that immigration judges can never get their adverse credibility findings affirmed by this tribunal, show 'em this opinion.

There wasn't much upon which to base an adverse credibility finding.  Not much at all.  But the panel unanimously finds the record here sufficient.

I'm sure other judges on the Ninth Circuit would disagree.  But it doesn't matter.  They're not on the panel.

So don't be thinking that the Ninth Circuit is uniformly one way or the other.  It's not.  Yes, you've got some cases where the Ninth Circuit makes it very tough on immigration judges.

And then you've got cases like this one.

Tuesday, April 08, 2014

Rosen v. LegacyQuest (Cal. Ct. App. - April 8, 2014)

When your refusal to pay a judgment is so crystal clearly wrong, you better be really, really right on the law.

Which the defendant isn't here.

I'd be looking -- actively looking -- for ways to make the surety here pay.  It's been eight years since the plaintiffs here got their judgment.  I have no problem whatsoever with tacking on some attorney's fees in light of the surety's intransigence.

Which is exactly what the Court of Appeal does.  In a decision that's both consistent with the law as well as entirely equitable.


San Luis & Delta-Mendota Water v. NRDC (9th Cir. - March 13, 2014)

Bored?  Interested in reading an 168-page, single-spaced opinion on the saga of the Central Valley and State Water Projects and their impact on the delta smelt and its habitat?  Complete with the dissenting views of Judge Arnold (sitting by designation from the Eighth Circuit) from Parts III, IV.A., IV.B, IV.E, and V.B. of the majority opinion, as well as the dissenting views of Judge Rawlinson from Part V.C.2?

Here you go.

I'm impressed that the Ninth Circuit -- including but not limited to the relevant law clerks (especially in Judge Bybee's chambers) -- was able to crank out this tome six months after oral argument.  That's impressive.  It's essentially a book.

Though I'm also impressed with myself.  Admittedly slightly less so.  For simply getting through the thing.

We clearly got our money's worth out of chambers in this one.

Imburgia v. DirecTV (Cal. Ct. App. - April 7, 2014)

You won't typically find the California Court of Appeal refusing to follow the Ninth Circuit in a civil case on the exact same issue.

But it happens.

Here's evidence that state courts are sometimes more hostile to (or at least less pro-) arbitration than their federal counterparts.

It's not a holding that's critically important to anyone other than individuals who subscribed to DirecTV.  But it's nonetheless an interesting divergence of opinion.

Monday, April 07, 2014

U.S. v. French (9th Cir. - April 7, 2014)

I certainly understand Judge Noonan's point.  It's indeed strange to let a husband essentially act as his wife's "lawyer" when the former's not an attorney.  So when the trial court suggested that the husband ask his wife questions on direct -- after the two had decided to represent themselves -- rather than having the wife do so herself, yeah, that's a little strange, and potentially improper.

At the same time, I totally understand Judge Nguyen's point as well.  It's not like the procedure actually had an effect on the trial.  Since the husband's questions (and his defense) was pretty much identical to that of his wife's.  At least at trial.  So it's unclear how this process really constitutes reversible error.

Ultimately, Judge Nguyen gets Judge Fisher's vote.  So the wife doesn't get a reversal of all her convictions.

Which I'm pretty much fine with.  The wife (alongside her husband) defrauded people on eBay of $1.6 million by deliberately "selling" high-end appliances that they had no intent or ability to deliver, then lied to customers repeatedly -- as well as setting up a system where customers wouldn't actually be buying through eBay (and hence protected).  The district court departed downward substantially and sentenced the wife to only two years in prison.  Whereas I might well have found her much, much more culpable.

Beware buying high-end stuff online.  If it sounds too good to be true, it probably is.

Friday, April 04, 2014

In Re K.L. (Cal. Ct. App. - March 20, 2014)

What you do in these situations is pretty much beyond me:

"K.J. was born in July 1995. In May 2008, when he was 12 years old, he molested his five-year-old brother. K.J. said that he had been molested by his father, and did not realize that his father’s conduct was wrong. . . . In August 2008, K.J. admitted a lewd act on a child under age 14 (Pen. Code, § 288, subd. (a)), was adjudged a ward, and was put on probation in the custody of his grandparents. In October 2008, his grandparents reported that they could not control him, and he was placed in the Martin’s Achievement Place. In June 2010, after sexual activity at Martin’s, he was placed at Gateway Residential Programs. In February 2012, after sexual activity at Gateway, he was placed at Teen Triumph, a third residential juvenile sex offender program, where he again engaged in sexual conduct. In August 2012, he was detained in juvenile hall. In October 2012, he admitted violating probation at Teen Triumph.

The case proceeded to a contested disposition. The probation department recommended that K.J. be committed to the DJF [SPM - Juvenile Hall]. He had “proven himself to be not amenable to treatment in placement,” and appeared to be “a serial predatory sex offender.” He had “progressed from intimidating a younger resident at Martin’s Achievement Place to engage in sexual conduct to . . . more recent incidents of . . ‘persuading’ younger . . . vulnerable residents to engage in sexual conduct.” Gateway advised that it would not readmit K.J. because “we can not guarantee the safety of our more vulnerable clients if [he] were to return.” The department opined that K.J. needed “a long-term juvenile sex offender program in a custodial setting with the [DJF].”


Thursday, April 03, 2014

In Re D.B. (Cal. Supreme Ct. - April 3, 2014)

I've critiqued the California Supreme Court for occasionally writing overly lengthy, discursive tomes that read like warmed-over bench memoranda.  So when it issues an opinion that's exactly the opposite, it's definitely something I notice.

Justice Corrigan publishes this opinion today that's incredibly concise -- seven (double-spaced) pages of text -- and yet both entirely complete and persuasive.  She addresses in eleven paragraphs of legal analysis every single thought and issue that popped into my head when I considered the dispute.

It's really a masterpiece.  I'm sincerely impressed.

Bock v. Hansen (Cal. Ct. App. - April 2, 2014)

I'm going to give a quiz.  As well as forthrightly admit that, until today, I would have only gotten the first of these two questions right.

Fact Pattern:  An opinion by the Court of Appeal recites an argument that one of the parties makes on appeal and begins its response thereto with the following sentence:  "We are nonplussed."

Question No. 1:  Did that party win or lose the appeal?

Question No. 2:  Who wrote the opinion?

The answer to the first question is pretty obvious.  When the Court of Appeal is directing phrases like "We are nonplussed" in your direction -- whether the opinion's published (as here) or not -- you can be pretty sure that you're going to end up losing.  As Respondent indeed does here.  It's also an indication that your counsel may not have done a successful job putting a sympathetic face on the appeal and/or argument at issue.  The use of the term "nonplussed" suggests a degree of frustration.  That's not your goal.

The answer to the second question will be obvious only those on the Court of Appeal and/or intimately familiar with it.  The Court of Appeal has used that phrase in only five opinions.  Every single one of which was authored by the same jurist:  Justice Richman.  Moreover, its seems that only recently has be begun losing his plusses.  Justice Richman joined the Court of Appeal over eight years ago, but the first time he used that phrase was two years ago -- in two different opinions -- and then used it again last year and, thus far, has used it again in two different opinions in 2014.

The latest people to nonpluss Justice Richman are insurance adjuster Craig Hansen and his attorneys at Horvitz & Levy ("Appeals Are What We Do") and Weston & McElvain ("Building a Reputation").  They lose the appeal and get a bit of sass directed their way as a bonus.

So let's work on getting James "Nonplussed" Richman his mojo back, people.  Make him happy.  Make arguments that make sense.  Or at least aren't (actually and/or perceived to be) silly.

Wednesday, April 02, 2014

Arroyo v. Plosay (Cal. Ct. App. - April 2, 2014)

Maria Arroyo dies, and when the mortuary comes to pick up her body, her face is all bashed in, which the mortuary can't fix.  Since Arroyo simply died of a heart attack -- not something that usually bashes a face -- everyone assumes that someone in the hospital must have futzed with (or mutilated) the body. So in 2011, Arroyo's survivors sue the hospital for disfiguring the body, which is indeed a tort.

But plaintiffs end up dismissing the case without prejudice after the trial court grants various summary judgment motions.  Oh well.  That's the way the cookie crumbles sometimes.

But then Arroyo's survivors figure out what really went down.  How did Maria's face get bashed in? Well, after she was pronounced dead by the medical staff at the hospital, she was taken to the morgue and put in a compartment in the hospital's freezer.  Presumably one of those drawer-like things that you see on television.

But when the mortuary workers found her, Arroyo was face down.  With her nose broken and with lacerations and contusions all over her face.

How'd she get that way?  You guessed it.  The survivors' expert says that Maria was still alive when the hospital declared her dead and put her in the freezer.  And that, later, she woke up, bashed her face and head against the compartment in a vain attempt to escape, and ultimately just froze to death.


There's a whole big statute of limitations problem.  Which, as the Court of Appeal holds, is more fatal to one cause of action than some of the others.

But boy.  I would not want to be defending this one.  Because unless you've got a good way to explain to a jury how Maria ended up face down with her nose broken, the alternative -- that she was put in the morgue alive only to freeze to death -- is . . . well, chilling.  To say the least.

Too bad it's the day after April Fool's Day rather than the day before Halloween.  Because this one's freaky.

Hale v. Superior Court (Cal. Ct. App. - April 2, 2014)

As I read this opinion, I initially thought that it concerned an issue that should probably be reviewed by the California Supreme Court.  You've got multiple different Court of Appeal opinions that conflict with each other -- and this latest missive deepens the split -- and that relate to an issue that arises frequently (e.g., when a drunk driver kills or injures others).  There's no sign that the issue's going away, and the result shouldn't vary simply depending upon which panel the defendant happens to draw.

Which generally means that the California Supreme Court should grant review.  Even if the opinion here is correct on the merits.

But as I reached the end of the opinion, I reconsidered that position.

I realized that the Legislature can easily solve this problem by amending the underlying statute.  It's not a constitutional case, so a statutory fix would work.  The Legislature also has a large incentive to do so since today's opinion is pro-defendant, and it's not like drunk drivers are the most popular constituency in the universe.  If there's a problem, there's every reason to think that the Legislature is more than able to fix it.  Plus there are dozens of district attorneys (plus the California Attorney General) aware of the problem and with access to the sympathetic ear of state legislators.

Given this fact, I decided that it's probably best to simply let this one sit.  Faster, easier and clearer for the Legislature to solve this problem than it is for the California Supreme Court to wade in.

U.S. v. I.M.M. (9th Cir. - March 31, 2014)

With all due respect to Judge Reinhardt and the rest of the panel, when I read this opinion, my reaction was:  "Miranda, Schmiranda."

Which is just a (totally un-)fancy way of saying that I care very little about whether the child here was given his Miranda rights, because in my mind, his "confession" was completely involuntary anyway.

You've got to read the opinion to believe it.  To set the scene:  there's a five-year old girl and her four-year old brother and a twelve-year old male cousin outside, with a grandmother and grandfather inside a trailer on a reservation in Arizona.  The grandmother and grandfather radically disagree on what the other did and said -- a dispute that creates yet more controversy in this case -- but the underlying issue is simply whether the twelve-year old (who's on trial) touched the five-year old.  There's no evidence at all with respect to this issue other than the testimony of the children:  no physical evidence, nothing.

I'll not go into what the various children say at trial, though lots of this is in Judge Reinhardt's opinion, and it's fascinating stuff.  Particularly look at the problems with the four-year old's testimony.  Which is about as helpful as testimony from . . . a four-year old.

Clearly, the most damning evidence against the defendant is his confession.  That's why there's this whole fight about whether this twelve-year old kid was in "custody" and was given his Miranda rights etc.  Because absent that confession, it's unambiguously a whole different ballgame.

I'm not saying that there's anything at all in Judge Reinhardt's opinion with which I disagree.  Because there's lots of good stuff in there.

I just take a slightly different approach.

Put me -- an untrained civilian -- alone with a twelve-year old boy in a small, six-by-six foot room in a police station, and let me see if I can get a "confession" out of him.  Let's have the kid -- as here -- be a twelve-year old who's in special education classes and who reads at a second grad level.  Let me kick the mother out of the room, shut the door, and "talk" to the kid, especially after he denies that he did anything wrong.  Let me tell him that what he's done "isn't really a big thing" but will become a "big thing if you're not going to be honest."  Let me tell the kid -- a kid who doesn't even know his own address -- everything he needs to say to get out of here if he'll just confess.  Let me especially work this kid if he's incredibly troubled and emotionally vulnerable; for example, if he's been abused himself and, especially, if he's witnessed his father try to kill his mother.  All of which are true here.

Oh, one other thing will help too.  Let me lie.  Let me tell the kid that his grandfather -- the only stable role model in his life, the person who he calls "Dad" -- has sworn that he saw the kid molest his cousin.  Let me repeatedly hammer this home to the kid:  Let me repeatedly tell him that by denying the offense he's calling his grandfather a liar, remind him that he's admitted that his grandfather doesn't lie, and use every conceivable machination to point out to the kid that the only way he can tell a story that doesn't make his grandfather into a liar is to say he touched his cousin.  Never mind that none of this is true:  that the grandfather never said anything at all even approaching what I'm telling the kid.  It's the only way out of the tiny room.  Especially since the kid's already admitted that anything the grandfather says is the truth.

I'll get that twelve-year old to confess.  Truly I will.  Even if, unlike the officer here, I don't have a gun at my side.  Because I can play on the mind of a child -- especially a child like this -- even a fraction as well as the officer here did, and I can get a confession.  Even more so if, like the officer here, this isn't my first interrogation rodeo.  And I can maybe even do it with a clean conscience if I testify -- as the officer does here -- that he's never even heard of a false confession.

Here's an empirical test for you.  You take 10 adults and beat them with a hose.  I'll take 10 children and interrogate 'em like the officer did here.  We'll both try to get 'em to confess to a crime we know they didn't commit.

I bet I win that competition every single time.

Confessions are -- and should be -- excluded when they're involuntary.  That's Due Process.  Sure, we've got the "prophylactic" Miranda rule, and maybe that was violated here.  But there a core Due Process problem as well.  And when you've got a "confession" obtained in circumstances like this one, I'm not sure if it's not better to go right to it.  Because if there's ever a case in which I really, really do not like the tactics that the officer elected to employ -- because they may well result in convicting an innocent child -- this one's a perfect example.

And that has very little to do with whether I read the kid what's on a tiny index card; rather, it has to do with psychologically manipulating the child into saying whatever I want him to say.

That's my slightly different perspective on the case.

Tuesday, April 01, 2014

Peabody Coal Co. v. Director, OWCP (9th Cir. - April 1, 2014)

We don't get that many Black Lung Benefits Act cases out here in the Ninth Circuit.  Compared to, say, the Third or Fourth Circuits.  But when we get 'em, we have to decide them.

Robert Opp worked as a coal miner for 39 years.  He was also around a pack-a-day smoker during this period.  He developed chronic obstructive pulmonary disease -- COPD.  He applied for benefits under the Black Lung Benefits Act, claiming that his COPD was caused or aggravated by his employment in the coal mines.  Peabody Coal opposed his application, contending that Opp's COPD was solely due to smoking.

The Administrative Law Judge gave Opp benefits.  The Benefits Review Board affirmed the ALJ's decision.  Peabody Coal appealed to the Ninth Circuit.  Which didn't feel a need for oral argument to resolve the case.  (Though the Ninth Circuit did inexplicably require nearly nine months after the submission date to finish its opinion.)

As for how the Ninth Circuit came out, see if you can guess.  With the hints that:  (1) it's the Ninth Circuit, and (2) the author of the opinion is Judge Pregerson.

Yep.  You're right.

No April Foolin'.

Gonzalez v. City of Anaheim (9th Cir. - March 31, 2014)

There are lots I could say about this en banc opinion.  You can read the majority and the dissent in this qualified immunity/excessive force case and see which one you find more persuasive.

But I'll stick to two basic points.  Which I'll try to articulate without much elaboration.

(1)  The dissenters -- principally, Judges Kozinski and Trott -- both say that it doesn't matter to them one iota how fast the car was going.  They say that no reasonable juror could possibly care how fast the car was going because the officer was indisputably trapped inside it and so did what he had to do.

Okay.  I understand that you and I might not see the world in invariably the same way.  Maybe I have a perspective that's so absurd to you that you'd find me (and my conclusions) patently unreasonable, and the fact that 11 citizens bereft of black robes unanimously agreed with me wouldn't change your mind.  I get that.

But, for whatever it's worth, let me tell you my personal perspective.

To me, it absolutely matters how fast the car was going.

Yes, the minivan was weaving in lanes, so I get the officers conducted a traffic stop.  And yes, after stopping, the driver was uncooperative, and tried to swallow a baggie of something, so one cop started grabbing and beating the guy through the driver's side window, while the other cop eventually jumped inside the passenger side door and started punching the driver in the head.  And, yes, the driver acted improperly, and pushed the stick shift into gear and jammed on the accelerator, causing the vehicle to move.

Yes, that put the officer who entered the car in a tough position.  The car was moving.  The door had shut.  He was inside.  He quickly tried shifting the car into neutral or turning off the ignition, but that didn't work.  So the officer had to make a call.  I get that.

But to me, for what happens next, it matters how fast the car is going.  Very much so.

If -- as the officer testified -- the car was going fifty miles per hour, that's one thing.  Speeding car, speeding officer, trapped, no way out.  I get it.

But if, as everyone admits may in fact be the case, the car had in fact only gone 50 feet, and in fact was only going 3.4 miles per hour, to me, that's an entirely different situation.  And even if you're an officer and are "trapped" on the passenger side of a vehicle, to me, it is not reasonable to put a gun six inches from the driver's temple and pull the trigger, killing him.

Judges Trott and Kozinski both write opinions that expressly say that what the officer here did was totally okay even if the car was going 3.4 miles an hour.  No need to simply open the door and walk out.  No need to try pepper spray, or retry the ignition, or continue to try nonlethal force.  To put it the way Judge Kozinski does in his succinct dissent, even if the car was going three miles an hour, "no sane officer in [the officer's] situation would have acted any differently, and no reasonable jury will hold him liable."

With all due respect to Judge Kozinski, we see the world differently.  I can't speak with certainty to your former point, having never been a police officer, but I nonetheless think that there are plenty of "sane" officers who would not deliberately kill a man at point blank range if they found themselves in the passenger side of a vehicle traveling at three miles per hour.  And, in any event, I can definitely speak to your latter point.  If I'm on a jury, and an officer kills a man in these circumstances while going three miles per hour, I may well hold him liable.  As may eleven others.  You may perhaps call the twelve of us "unreasonable".  But with respect, perhaps a little deference to the common man is in order here.  Perhaps it is your perspective that is unreasonable.  Or perhaps both of our approaches are within the range of reason.  One important part of being a judge is recognizing that the Founders were pretty confident that there might well be a divergence in what judges thought and what jurors might think on identical facts.  And enshrined in the Constitution the Seventh Amendment as an important constraint on what we should do in situations like that.  I think that's pretty important.  Not always.  But at least where reasonable minds can disagree.

And I understand that you might think that I, and everyone else like me, is unreasonable.  All I can say is that I bet the number of such "absurd" conclusions is nontrivial.  And sincerely felt.  Even by those who might be as approximately as informed and as sophisticated as you are on these topics.

So maybe just give that some thought.  Because whether it's three miles per hour or fifty really does matter to people like me.  Again:  For whatever that's worth.

(2)  Second, a doctrinal point.  One of my first-year students in Civil Procedure asked me just last week in class why a judge would grant a JML motion -- a "directed verdict" -- if they had previously denied a summary judgment motion.  This case is a perfect example.  The evidence on a summary judgment motion is limited to what the parties submit.  Here, the officer's testimony had real problems, and the moving party's summary judgment papers didn't clear those problems up.  The officer said the car was going 50 miles per hour, but also said that the car went 50 feet in five to ten seconds.  Those two figures don't add up.  As the majority opinion amply demonstrates.  Fifty feet in ten seconds is more like three miles per hour.

Now, maybe, in fact, the car went more than 50 feet.  There may well be demonstrable evidence to prove this point -- incident reports, photographs, etc.  But the moving party didn't introduce any such evidence.  It didn't explain the inconsistency.  Ergo a reasonable jury could, in fact, conclude, viewing all reasonable inferences in favor of the nonmoving party, that the car was only going around three or so miles an hour.  Which may well make a difference.

At trial, this error may well be remedied.  There may well -- indeed, probably will -- be photographs and complete reports introduced into evidence.  Evidence that may well demonstrate that the car went well over fifty feet.  Which would explain the officer's error and, perhaps, lead to a directed verdict.

But that's not the evidence here.  When lawyers make mistakes, or don't anticipate problems, you can get results like the one here.

Which is what I essentially told my students.  Without a concrete example.  Explaining just in general how the evidence on a summary judgment motion might be different than that introduced at trial, and hence lead to different results even though the underlying substantive standard (whether a genuine issue of material fact exists) is identical.

Now I've got a case to use as an example.

P.S. - One tangential point.  Unrelated to the merits.  Check out footnote 10 of Judge Trott's dissent (at page 44).  I cannot tell you how thrilled I am to see that unmarked sarcasm has now made its way to a published Ninth Circuit opinion.  Judge Trott doesn't even add *Sarcasm Alert* to the footnote.  He simply says what he says and let's the reader decide if he's kidding or not.  Totally awesome.

Monday, March 31, 2014

Lal v. California (9th Cir. - March 31, 2014)

You can take police on a high-speed chase on the 101 for 45 minutes at speeds in excess of 100 miles per hour.  You can tell the police that you want to kill yourself or have them shoot you.  When the cops disable your vehicle with a spike strip, you can get out of your car and scream at them "just shoot me, just shoot me".  You can pick up a large rock, repeatedly bash it against your forehead, and then start throwing rocks at the officers.  You can even try to pretend that your cell phone is a pistol, and try to trick the cops into shooting you by "firing" it at them.  To which the police will hopefully respond the same way that they did here:  By screaming to the other officers not to shoot you because it's a phone, not a gun.

But when you take your football-sized rock and start advancing on the officers, getting with a few feet of them, at that point, they're not going to be able to wait for the K-9 they called for backup.  You'll get your wish, and they may well feel compelled to shoot and kill you.

So congratulations.  You've "won".

But when your estate sues the officers for alleged excessive force, well, that's a different story.  That one's going to be an unambiguous loss.  Qualified immunity.

Or, to put it differently, in the game of life, "Gun Beats Rock".

Ceron v. Holder (9th Cir. - March 31, 2014)

Back in April of 2013, Judge Graber wrote a majority opinion that distinguished circuit precedent in a deportation case, but Judge Ikuta dissented, contending that the majority was bound by that precedent.

In September, the case got taken en banc.  Which meant that Judge Graber's opinion could no longer be cited.

But guess what?  Judge Graber gets drawn for the en banc panel.  Judge Ikuta does not.  And, today, the en banc court issues its opinion.  Authored by Judge Graber.

It's 9-2.  Judge Bea, joined by Judge Gould, dissents.  This time Judge Graber gets to say what she wants to say without being constrained to "distinguish" circuit precedent.  So squarely overrules the prior circuit precedent "to the extent it's inconsistent" with today's holding.

So that puts an end to that.

Friday, March 28, 2014

Ventress v. Japan Airlines (9th Cir. - March 28, 2014)

If a lawsuit lasts nearly a dozen years, it's got to be looking good for the plaintiff, right?  Surely the defendant's inability to get the case finally dismissed for all that time means that they're going to have to eventually settle the thing, right?

Not at all.

This case lasts exactly that long, and goes up to the Ninth Circuit three times.  Plaintiff won the first two times.  The Ninth Circuit first held that plaintiff's claims were not preempted by the Friendship, Commerce and Navigation treaty.  The second time, it held that those claims were not preempted by the Airline Deregulation Act.

But the third time was a charm for Japan Airlines.  At that point, the Ninth Circuit held that the claims were preempted by the Federal Aviation Act.

Too bad Japan Airlines hadn't started with that one.  It would have saved a lot of time and money.

For everyone.

Thursday, March 27, 2014

Rouse v. Wells Fargo (9th Cir. - March 27, 2014)

You've got to be a monster civil procedure geek to read nearly twenty single-spaced pages about what Congress meant when it said that, for purposes of diversity jurisdiction, national banks are deemed to be “citizens of the States in which they are respectively located.”  Does "located" mean where they have branches, or do a substantial amount of business, or simply where their headquarters are?

I am, however, precisely such a geek.  So I read the thing.  (Which is more than I can say for the plaintiffs/appellees.  Who didn't file a brief, didn't enter an appearance, and didn't even respond to letters from the Ninth Circuit about whether they wanted oral argument.  Clearly, they care deeply about the resolution of this appeal.  Not.)

Judge McKeown's majority opinion holds that the right rule is that they're only "located" where their headquarters are.  Judge Gould's dissent says that he "regrets" that he's constrained to disagree, and thinks that especially for entities like Wells Fargo -- a traditional California entity and one with its principal place of business here -- it's silly to say they're not "located" here.

But Judge McKeown gets Judge Bybee's vote.  So there you have it.

People v. Black (Cal. Supreme Ct. - March 27, 2014)

The majority opinion (written by Justice Chin) has a point.  Justice Liu's concurrence (joined by Justice Kennard) has a point as well.  One that -- as Justice Liu mentions -- is not necessary inconsistent with the former.  (Though, to be honest, I think that Justice Liu may be expressing a hope rather than giving a neutral evaluation of the majority's holding.  Lots of what the majority says is somewhat inconsistent with Justice Liu's proposed caveat.)

The California Supreme Court holds that it's not reversible error to fail to discharge jurors for cause as long as the defense is able to strike those jurors with peremptory challenges.  Even when, as here, the defense then runs out of them.  You can see the majority's point.  Defendant was able to remove those jurors anyway.  No blood, no foul.

But Justice Liu has a point as well.  To put it somewhat differently than he does:  What's the incentive for the trial judge to get cause challenges right if it's never reversible error?  The challenges here are a good example:  it's crystal clear that the jurors should have been struck.  The trial judge nonetheless was more than happy to seat 'em.  So defendant was forced to waste precious challenges.  Given the California Supreme Court's holding, there's absolutely no reason for trial judges to pay serious attention to even legitimate challenges for cause.  What's the defense going to do if the challenge is denied?  Get a writ granted in the middle of jury selection?  Good luck with that.  Since it's not reversible error, the trial judge can just say "Denied" to even the most obviously meritorious challenges.  No problem.  No reversal.  No remedy.

Justice Liu's concurrence says that maybe reversal should be allowed when the trial judge "repeatedly" makes errors, since that creates an illegitimate balance between the challenges granted to the defense versus the prosecution.  I agree with him as a policy point.  Though I'm not sure why that's not in fact precisely the case here.  Since the trial judge did it twice, with two different jurors, so it seems to me that qualifies as "repeatedly".  Justice Liu doesn't explain why doing something twice doesn't count, or what "repeatedly" means if it doesn't mean "more than once".

Even beyond Justice Liu's (very good) point, the California Supreme Court's holding seems to me to create an untenable doctrinal inconsistency.  The Court has expressly held that it's reversible error to fail to give a defendant his specified number of peremptory challenges.  So, for example, if the statute says he's entitled to 10, but you only give him 8, that's reversible error.

But if that's the rule, then I don't see why the same result doesn't apply here.  That's basically exactly what transpired.  Defendant was entitled to 10.  But the trial judge's errors meant he only got to use 8 because he had to waste 2.  I don't see why it makes a whit of difference whether the trial judge's error is his inability to properly count to 10 or his inability to dismiss 2 jurors for cause.  The practical effect is exactly the same.  Exactly.  The defendant is forced to leave two jurors on it was entitled to bounce.

How you get to 8 doesn't matter.  At least in any way that makes sense.

What's the only way it matters?  I've got a pretty good sense.  The reality is that trial judges are much more likely to be able to count to 10 than they are able to properly adjudicate challenges for cause.  So why reverse the former but not the latter?  Nothing to do with doctrine or effect.  It's simply that we're willing to do so because there aren't many examples of the former but we're worried there might be way too many instances of the latter.

That's not a normative explanation for the distinction.  But I think it's pretty descriptively accurate.

So trial judges:  If you're sleepy, feel free to take a nap during voir dire.  Put a big thumb on the scale towards denying challenges for cause.  No downside if you get it wrong.

Just remember how to count.  That we care about.

Wednesday, March 26, 2014

People v. Petrovic (Cal. Ct. App. - March 26, 2014)

"Yeah, apparently, the feds are soft on kiddie porn.  Especially those perverts on the Ninth Circuit.  By contrast, we here in California take these things seriously.  Unknowingly having a temporary cache file in your computer may not count as 'possession' of child pornography in the federal system, but here in California, under state law, we say it does."

So holds Justice Gilbert.

Pielstick v. MidFirst Bank (Cal. Ct. App. - March 26, 2014)

If you're pretty sure that you're going to lose a demurrer to your complaint -- perhaps the tentative is against you? -- and you want to voluntarily dismiss the complaint without prejudice instead, be sure to do so before the hearing starts.  Because once it has started, the "trial" has "commenced" and you no longer have the unfettered opportunity to dismiss.

At which point, if you're right, you'll really lose.  With prejudice.

Tuesday, March 25, 2014

Jackson v. City and County of San Francisco (9th Cir. - March 25, 2014)

Ah, that nutty, left-wing Ninth Circuit.  We all know what it's about.  Of course it upheld today San Francisco's requirement that firearms be stored with either a trigger lock and/or in a locked container, as well as its ban on the sale of hollow-point bullets.  What else would one expect from a court packed with liberals and demonstrably hostile to the Second Amendment?

That's a consistent refrain.  After this morning's opinion, you'll presumably hear it a lot.

The hard part, however, will be explaining why today's opinion is authored by Judge Ikuta.  Hardly a left-winger.  Even in part.  As well as joined by Judge Milan Smith (as well as Judge Nelson).

That's not a panel that's actively looking to uphold gun regulations.  Far from it.  Plus, there's lots in the opinion that unambiguously takes the Second Amendment incredibly seriously.

Sometimes cases gets decided on, well, the merits.  Here, the Ninth Circuit holds that the regulations satisfy intermediate scrutiny and could advance reasonable state interests in preventing deaths from firearms.  Other municipalities could (and have) concluded otherwise.  But San Francisco has gone the other way.  Something that's permitted by the Second Amendment.

Let the gnashing of teeth begin.

Monday, March 24, 2014

Davis v. Walker (9th Cir. - March 24, 2014)

I occasionally critique opinions as making little doctrinal sense and/or ignoring the practical realities of justice.

Want to see an opinion that exactly the opposite?  Here you go.

Justice Tallman's opinion makes eminent sense.  Both doctrinally and practically.

There's a problem.  Judge Tallman provides a path to solve it.  By contrast, the district court pretended to pretend that the problem simply didn't exist.

I like Judge Tallman's approach better.  Lots, lots better.  Straightforward, equitable, and doctrinally sound.

Well done.

People v. Garcia (Cal. Ct. App. - March 24, 2014)

If you want to get a sense of some of the many absurdities in criminal law, take a look at this opinion.

Not that I'm crying all that much for the defendant, who deserves -- and receives -- a very long prison sentence.  But how we go about making that sentence 74 to life is as strange as some of the conduct that generated that dictate.

I'll not discuss at length why he gets many extra years for putting three different fingers inside the rape victim's vagina before inserting his penis.  You can read more about that in the opinion if you're interested.  Nor, with respect to other counts, does one need to discuss the particular facts of this case.

Instead, I'll summarize the Court of Appeal's central holding with a simple hypothetical:

Imagine that I burglarize a house by entering an open sliding glass door, intending to steal a purse that I view therein.  Then, once I'm in the house, I decide to see if there's any prescription medication I can steal, so I go into a bathroom to check out the medicine cabinet and while I'm there steal a hand towel.  Which for some reason gets me thinking about jewelry, so I go into a bedroom in the house and find and take a necklace.  At which point I start thinking about other pretty things, go into a different bathroom, and steal some makeup.

I burglarized and stole from one house.  But according to the Court of Appeal's ruling, I'm now guilty of four separate counts of burglary.  If I'd have entered the home with a plan of "cleaning the place out," I'd only be guilty of one count.  If I'd have entered the home and all of the items above were in one common room, I'd only be guilty of one count.  But the pure happenstance that (1) I occasionally changed my mind, and (2) the fact that the various items were located in different rooms means that I'm guilty of (and can be punished for) four separate offenses rather than one.  To put it a different way, the guy with the more culpable mental plan who intends to steal everything that's not bolted down is punished less than the guy who enters with a more limited vision of just stealing selected items.

That's what the Legislature intended.  At least according to the Court of Appeal.

As for how the Court of Appeal gets there, I thought that it was interesting that the opinion discusses at some length the reasoning articulated by Justice Benke's dissent in an earlier case.  As I read that portion of the Court of Appeal's opinion, I simultaneously thought (1) that that reasoning had some persuasive merit, but (2) that it was nonetheless a little weird to be quoting from a dissent, which only highlights the fact that the current opinion -- which goes even further than that earlier case -- may perhaps be somewhat "pressing the envelope".

Though I think I understood the opinion's discussion of Justice Benke's dissent a little better once I got to the very end of the opinion.  At which point I noticed that the current opinion was authored by Justice Benke.

Having read literally hundreds of similar burglary cases over time, I'm largely at the point at which I simply throw up my hands.  As presently articulated, this incredibly commonly charged offense is so far from what we commonly understand to be the relevant crime that it's virtually incomprehensible.  Nothing makes any sense at all.  But we seem to have stopped caring at all about that fact long, long ago.  We're instead happy to build fiction upon fiction upon fiction to where we have this giant cairn of a doctrine that looks as fragile and as absurd as any man-made pile of teetering rocks you'll ever see anywhere.

Yet there is stands.  A definite marker for where we are, where we're going, and how we got there.

Add this opinion to the top of the pile.

Friday, March 21, 2014

Ellis v. US Security Associates (Cal. Ct. App. - March 20, 2014)

The Court of Appeal holds that you can't contractually shorten the limitations for FEHA claims (e.g., sexual harassment) to six months.  That's against public policy and invalid.  So it reverses the trial court's dismissal of the lawsuit.

It's a tight little opinion.  Very persuasive.  Maybe a little long on case-by-case distinctions of prior precedent.  But that's not particularly unusual for opinions in the Court of Appeal.  A byproduct of turning bench memos/tentative opinions directly into the final product.  It nonetheless remains a good piece of work.

There's also a nice couple of pages that describe the salacious details.  References to the supervisor "pulling up his pants in front of [plaintiff] to expose the size of his sexual organ" and how both he and his wife (who also worked at the place) tried to convince plaintiff to join 'em in a threeway.  Which is all fine.  If you're into that sort of thing.  But not at work.  While you're there, keep it professional.

And in your pants.

Falcon v. Long Beach Genetics (Cal. Ct. App. - March 21, 2014)

Mother wants to know if Father is actually the biological father of Daughter, so gets a DNA test from Defendant.  Defendant tells Mother that Father is not, in fact, the father.

Turns out, that's wrong.  Father's in fact the father.  As subsequent DNA tests definitively confirm.

So Mother (and Daughter) sue Defendant.  You might think that's a pretty decent lawsuit.

Maybe it is.  Though, of course, every lawsuit has its own complexities.

But in this one, one of the complexities is counsel for plaintiff, San Diego attorney Duane Admire.  The Court of Appeal isn't particularly happy with the papers filed in this case.  Here's what it says

"We set out the undisputed material facts as ascertained from the parties' moving and opposing papers and state other facts and draw inferences from them in the light most favorable to plaintiffs. Having said this, we are compelled to note the difficulty we have had identifying the evidence supporting plaintiffs' claimed disputes as to defendants' enumerated material facts pertaining to the section 47(b) privilege. Plaintiffs' opposing separate statements largely contain argumentative assertions in response to each listed fact, unsupported by the cited evidence. . . . To further complicate review, plaintiffs make numerous factual assertions in their briefs without record citation. Accordingly, our review of the facts is also hindered by their failure to provide citations to the record that comply with California Rules of Court, rule 8.204(a)(1)(C). We are entitled to disregard such unsupported factual assertions even on de novo review of a summary judgment."

The Court of Appeal likes good briefs.  They won't always enable you to win.  But they can definitely help you not lose.

Which plaintiffs do here.  Lawsuit dismissed.

Thursday, March 20, 2014

Haskell v. Harris (9th Cir. - March 20, 2014)

Most en banc cases are difficult.  That's because a panel's already decided the case a particular way, there's been a successful en banc call, and there's typically a whole lot of disagreement about how the case should be resolved.  That's why it went en banc, after all.

For example, here, the initial panel heard oral argument in July 2010, and eventually issued a split opinion in February 2012.  It went en banc shortly thereafter, in July 2012.  Then, in September 2012, there's a spirited oral argument in the en banc court.  It looks like it'll be interesting.  A (secret) vote is taken, and opinion(s) start to get drafted.  It'll almost undoubtedly be a fight.

But you know what makes things easy?  Two months later, in November 2012, the Supreme Court grants certiorari in a case that's virtually identical to this one, albeit from another circuit.  Thereafter, in June 2013, the Supreme Court comes down with its opinion.  5-4.  Interesting lineup, well argued on both sides, but there's a definite answer.

So put the opinion writing process on hold.  Because the world's now changed.

A couple months later, the Ninth Circuit tells the parties:  Hold tight.  Given the intervening decision, we're going to have to get this thing reargued.  We'll do it sometime in December.  We'll give you a date shortly.

Come December, the second argument happens.  This one's much less spirited.  Sure, there are parties on both sides.  Presenting their positions forcefully.  But it's nonetheless pretty clear which way this one's coming out given the Supreme Court's holding in the intervening case.  Even to the parties.

Sure enough, four months later -- this morning -- the en banc court releases its opinion.  This one's much shorter than the court originally anticipated in 2012.  Four short paragraphs.  Per curiam.  With the assent of 10 of the 11 judges.  Easy.

(Though that doesn't stop Judge Milan Smith from writing a nine-page concurrence, in which he complains about -- and disagrees with -- the last paragraph of the per curiam opinion.  Even easy stuff isn't necessarily easy when you've got to get eleven different judges on board.)

I hope whichever clerk was assigned the original en banc opinion didn't get started early, but instead procrastinated.  Because that'd have been a good strategy.  (Parenthetically, one advanced by my friend and colleague at USD Law, Frank Partnoy, in his recent book Wait: The Art and Science of Delay.)  No wasted energy.  The thing essentially resolves itself.

Sometimes everything comes together nicely.  Or at least easily.  Like here.

In Re Christian I. (Cal. Ct. App. - March 19, 2014)

As you might imagine, it takes a lot for an experienced Juvenile Court Referee in Los Angeles to describe a particular case as "shocking to me, even after all of these years” and “one of the worse cases I have seen, where there’s such sadism . . . and such disregard for a child[]."

A lot.

Wednesday, March 19, 2014

People v. Ramirez (Cal. Ct. App. - March 19, 2014)

There are legions of cases that make crystal clear that even though the rule of lenity is supposed to be a cardinal principle of statutory interpretation in the criminal context, in practice, it's pretty much meaningless.

Except in this case.

A vice principal at a high school has sexual relations with a 14-year old student.  Oops.  He pleads no context to a plethora of charges, some of which were alleged to have occurred prior to October 1, 2011, some of which were alleged to have occurred thereafter, and some of which may have occurred in either of these categories.

This matters.  Since, depending on the relevant date of his criminal acts, he gets four-for-four custody credits under one set of rules, but only two-for-four under another.

Which adds up to a fair piece of time.  Even in the context of his 15-plus year sentence.

The thing is, the statute sets up one rule for crimes before October 1, 2011, and another for crimes after that date.  And it's crystal clear that it's the date of the actual crimes that matter, not the date of sentencing or any other date.

The statute also doesn't tell you anything about what you do when there are some crimes before that date and some crimes after.  Plus, all the parties agree that there's no "middle ground".  It's either one rule or the other.  You can't "mix and match" and apply one rule to one part of the sentence and another to the rest.

Hmmm.  What to do?

In a very concise opinion, Justice Premo holds that what you do is to rely on the rule of lenity.  It's totally unclear.  So you adopt the interpretation that favors the defendant.  So the guy gets the more favorable good conduct credit regime.

Still stays in prison for a long, long time.  But gets out a bit earlier.  Thanks to a doctrine that's supposed to matter a lot but actually matters very little.

Except here.

Family PAC v. Ferguson (9th Cir. - March 19, 2014)

I'll admit that I was initially of the impression that when the Court of Appeals expressly told the parties that they were to "bear their own costs," that included attorney's fees.  That's how we usually use the term "costs" in the modern era, which occasionally include the right to recover fees.

But Judge Fisher persuades me otherwise.

Costs on appeal are subject to one standard.  Attorney's fees another.  In a "split" appellate opinion, a panel might essentially call it even on the cost front.  But attorney's fees might nonetheless be recoverable since you can often recover them as long as you've prevailed on a significant issue.  Even if you got crushed on others.

So I think we're on the right side of the circuit split here.

Tuesday, March 18, 2014

Noceti v. Whorton (Cal. Ct. App. - March 18, 2014)

Not that you need any additional incentive to calendar a trial date correctly.  But here's some more.

The Court of Appeal holds that a plaintiff isn't entitled to mandatory relief under the "attorney fault" provisions of CCP 473(b) when her lawyer admits that he calendared the wrong trial date and, as a result, didn't show up for -- and hence lost -- the trial.  Maybe (to reiterate:  maybe) she can seek discretionary relief.  Good luck with that.  But while Section 473(b) permits you to vacate a default, that rule doesn't apply to not showing up at trial.

That's not a default.  We instead call that something else:  Losing.

So calendar those dates correctly.  They're pretty important, after all.

Or, at a minimum, keep those malpractice insurance premiums paid up.

Monday, March 17, 2014

Purcell v. Schweitzer (Cal. Ct. App. - March 17, 2014)

This decision is correct.  Though it unfortunately leaves unanswered what exactly we're supposed to do in situations like this one.

It's a pretty standard problem, and one with which attorneys are more than familiar.  X owes Y some money; here, $85,000 on an unpaid promissory note.  Y sues.  The parties settle for $38,000.  Installment payments.

So we have to deal with the obvious problem.  After all, X didn't pay the installments due on the note.  So what makes us think he actually pay the installments on the settlement?

We solve this problem the usual way we solve it:  The parties stipulate to a judgment of the full amount due ($85,000) if any of the required installments aren't paid.  That'll create the right incentives.

Garden variety.  Done all the time.  Generally works.

Now, in this case, there a wrinkle.  One that makes X's position very, very sympathetic.

Under the settlement agreement, X's payments are due on the first of the month.  They're considered late -- and a breach of the agreement -- on the fifth.  Things go fine for a year or so.  Installments paid on time.  As expected.

But about a year and a half into the installment deal, in October 2011, for the first time, X is late.  His installment payment is due no later than October 5.  But he gets it in on October 11 instead.

Y cashes the check.  But Y also immediately moves for and obtains a stipulated judgment for the amount due under the "full payment" provision.

Mind you, at this point, there's something like $700 of installment payments still due, at which point the settlement will be fully paid.  But that doesn't stop Y from obtaining a stipulated judgment for over $58,000.  Entirely on the ground that the October payment was six days late.

After X makes the final installment payments due in November and December, he moves to vacate the stipulated default judgment, asserting that it's an impermissible penalty.  Of course, the parties had expressly said in the settlement agreement that it wasn't a penalty, and included various legalese to try to support this contention.  But the trial court -- understandably -- wasn't buying it, and vacated the default judgment.  The Court of Appeal agreed.

All of which is right.  You can't jump on a guy being six days late in one of his payments to get a $50,000-plus windfall.  I can't think of a better definition of an unjust penalty, and California law correctly refuses to enforce such a penalty.  Even if the parties have "agreed" it's not one.

All well and good.

But what the Court of Appeal doesn't try to explain -- and it's definitely a tough question -- is where the line is between an impermissible penalty in situations such as this and a permissible one.  What if the guy's not six days late, but sixty?  What if the only reason he even makes that (late) payment is because you've already sought to enter the stipulated judgment?  What if the guy's late not once, but seven times?  Remember that these provisions are often included precisely in situations in which we've had prior experience with the guy not paying his valid monetary obligations.  When can we finally say:  Enough his enough?

At some point, you've got to be able to do that.  Even though, yeah, truth be told, it is a penalty.  Does the amount of the stipulated judgment truly "approximate" our costs in enforcing the judgment, blah blah blah, as the statute requires?  No.  That's not even the point.  The point is instead to encourage the guy to make the payments due.  To put precisely the type of financial pressure on him that the statute facially excludes.

I can see a decent argument that, in situations like this, it's not even really a "penalty".  It's instead merely the removal of an "incentive".  Remember:  X totally owed $85,000, but the settlement agreement let him pay a fraction of this amount ($38,000) as full payment.  But only if he actually paid, and did so on time.  Once he defaulted (again) on his obligations, the incentive arguably legitimately disappeared.  It's not that it would cost Y an additional $50,000 to hire a lawyer, etc. to go after the guy.  We obviously can't prove that.  But why should X be entitled to get the benefits of the agreement -- a large reduction in liability -- and yet still avoid his obligations thereunder?

That's a systemic problem in cases like this one.  Because both under the Court of Appeal's reasoning as well as under the statute, it does seem like we may well be making it very difficult to enforce these types of settlement agreements.  Because it's always (1) going to be hard to draw the line between late and "really" late payments (i.e., between material and immaterial breaches), and (2) even if we can satisfy (1), it's still almost always going to be an impermissible "penalty" since it'll be incredibly hard definitively establish the link between the amount that's due and what we now have to do to enforce the thing.

And that matters.  Because if we can't be sure that we can enforce these provisions, then we won't be willing to settle.  That's bad for the parties.  That's bad for courts as well, who then have to continue to deal with the continued litigation.

It's not that I disagree with the result here.  I definitely don't.  This couldn't be a more obvious example of an impermissible penalty.

But the arguments and analysis in this case nonetheless raise the definitely important question of when these types of stipulated judgment agreements are in fact enforceable.  Before reading this opinion, as a mediator and as an attorney, I'd have felt pretty confident about resolving disputes -- and keeping them resolved -- by including provisions like these.  And have routinely employed them myself.

By contrast, after reading the opinion, I'm not at all sure they're enforceable.  Certainly not easily, anyway.

So ponder this reality the next time you're faced with a similar situation.  Sure, you can sign the relevant agreement.  Whether you're on the debtor's side or on the creditor's.

But what are you really buying or selling?

Tough to tell.

Friday, March 14, 2014

Rosebrock v. Mathis (9th Cir. - March 14, 2014)

Pretty interesting.

There's a federal regulation that prohibits "displaying" anything on VA property.  That (probably) covers everything.  No displays.

Robert Rosebrock put an American flag on the fence that surrounds the VA's property.  The VA was fine with that.  No citations.  We're proud to be American, after all.

But then Rosebrock, upset at various VA policies, occasionally displayed the American flag upside down.

That the VA cared about.  And repeatedly cited him for violating the regulation.

When the flag was top up, no problem.  Top down, prosecution.

That violates the First Amendment.  Content discrimination.

Ultimately the Ninth Circuit holds -- in a split opinion -- that the case is moot because the VA facility sent an e-mail that said it wouldn't do it again.  Despite the fact that this promise doesn't have anything near the status of law, Judge Bybee finds it credible, and holds that the case is moot.  Judge Rawlinson dissents.

I'm not surprised that the VA would be happy with the display of a right-side-up flag and displeased with an upside-down flag.  But I am surprised that it would take 'em eight months to figure out that you can't just cite people when they're engaging in speech you don't like.

But fear not.  It said it won't do it again.

Snibbe v. Superior Court (Cal. Ct. App. - Feb. 27, 2014)

I'm pretty impressed with the dedication and judgment of all of the judicial officers in this case.  Balancing privacy and relevance and burden during discovery is always tricky.  But my strong sense is that what was done here was entirely right.  We want to find out of a doctor is (as alleged) improperly delegating critical pain management decisions to an unqualified subordinate.  He says he's simply dictating orders that the other person writes down, but the plaintiff has reason to disbelieve him.  Looking at other orders he's signed for other surgeries may well indicate whether he's lying.  So both the trial court and the Court of Appeal allow for limited discovery.  With appropriate redaction and protective orders.

Sounds right to me.  A nice balance between the various competing interests at stake.

Well done.

Thursday, March 13, 2014

U.S. v. Morales-Isabarras (9th Cir. - March 13, 2014)

Jaun Morales-Isbarras is a resident of Mexico.  He's not entitled to be in the United States.  We catch him and deport him on December 15, 1999.  End of story.  Right?

Wrong.  We catch him again in the United States in 2001.  Deport him back to Mexico on February 24.

He comes back.  We catch him again.  Deport him on September 4, 2001.

He comes back again.  We catch him yet again.  Quickly this time.  Deported again on September 26, 2001.

The guy's not deterred.  He immediately comes back.  Caught and deported yet again on October 2, 2001. Notice that this is less than a week (!) after he was previously deported.  For the fourth time.

Morales-Isbarras returns again.  Caught and deported again.  This time on May 18, 2003.

You know what happens.  He returns.  He's caught again.  This time -- the seventh time being the charm, apparently -- we charge him with illegal reentry.  So in November 2003, he gets to stay in the United States for a spell.  Sentenced to 21 months in federal prison.

Which he serves.  He gets released in May of 2005, and is immediately deported (again) to Mexico.

Do I really have to tell you what happens next?

Of course not.  He comes back.  Is caught in August of 2006.  Indicted yet again for illegal reentry.  Pleads guilty, and is sentenced to 24 months in prison.  Gets released from prison in July 2008, and we deport him again to Mexico.

Guess what?

Yep.  He's caught again in September of 2012.  This time in Arizona.

I'll not go into the procedural morass of the resulting charges.  Suffice it to say that the only substantive charge against him in Arizona is a misdemeanor (!) -- improper reentry -- for which he gets 18 months, and then he's transferred back to California for violation of supervised release (imposed for one of his previous illegal reentry offenses), and he gets another 18 months for that.  So that's another three years total in prison.

The Ninth Circuit affirms all of this.  Which means that Morales-Isbarras will hang out in the U.S., in prison, until the middle or so of next year.  At which point he'll again be released and deported to Mexico.

Bets on what happens next?

People v. Montes (Cal. Supreme Ct. - March 13, 2014)

I'm not going to ask anyone to read this 100-page plus opinion.  Because it's (of course) a death penalty case.  With a fairly predictable result.  The Court unanimously agrees the guy dies.

I will instead highlight just two portions of the opinion.  Without substantial comment.  See what you think.

Defendant says he was unfairly singled out for the death penalty because his victim was (1) white, and (2) has brothers and a stepfather who were police officers.  He says that the Riverside DA unconstitutionally sought the death penalty against him (and others) based on those characteristics, thereby depriving him of equal protection.  Here's the law:  It violates the Equal Protection Clause to decide to prosecute based on "an unjustifiable standard such as race, religion or other arbitrary classification."

With respect to the claim of discrimination based upon the race of the victim, defendant introduced a study that showed the 81% of the capital charges brought by the Riverside DA within the relevant period were brought when the victim was white, whereas only 39% of the wilful homicides in the area during this period involved white victims.  Defendant wants discovery from the Riverside DA for more information about the charging details.

To obtain such discovery, you've got to produce "some evidence" tending to show discriminatory intent and effect, and/or to sustain your requested discovery "by plausible justification".

The California Supreme Court holds that defendant's study doesn't satisfy this standard because it's not detailed enough; instead, it's a "bare statistical comparison of the race of homicide victims in Riverside County without consideration of individual case characteristics" that "[s]ignificantly, [] did not indicate what
percentage of the non-White-victim homicides would have been eligible to be charged as capital homicides."  In other words, defendant is not permitted to obtain discovery of individual case characteristics because the existing information available to defendant's experts does not include individual case characteristics.

Think about that for a tiny bit.

With respect to the claim of intentional discrimination based on the fact that the victim's relatives were police officers, here's the entirety of the Court's response:

"Defendant additionally contends he was subject to discriminatory prosecution because the victim was related to members of law enforcement. He points to a taped interview between codefendant Gallegos, police detectives, and the deputy district attorney, in which an interviewer mentioned that the victim’s stepfather was a former police officer and that his brothers were police officers. However, defendant fails to provide authority that this type of victim status constitutes an unjustifiable or arbitrary classification under federal equal protection. We therefore reject defendant’s arguments based on this aspect of the victim’s status."

I get that defendant "fails to provide authority" for the point.  Beyond, of course, citing the relevant standard from the California Supreme Court.  Which merits quotation again:  "It violates the Equal Protection Clause to decide to prosecute based on an unjustifiable standard such as race, religion or other arbitrary classification."

Which means that the California Supreme Court is of the view that it wouldn't be an "arbitrary classification" to seek the death penalty solely against people whose victims were related to police officers.  That'd be fine.  Consistent with the Equal Protection Clause.  There's "no authority" to the contrary.

Think about that one as well.

Remember that this is a unanimous opinion of the California Supreme Court.  Where someone's life is on the line.

So presumably these ideas were well thought out.

Wednesday, March 12, 2014

People v. Garcia (Cal. Ct. App. - March 12, 2014)

I'm a little confused.

The Court of Appeal held a tiny bit ago that it's "unclear" whether the alternate jurors were actually in the jury room alongside the 12 regular jurors.  I'm not exactly sure what's unclear.  Here are the relevant portions of the transcript (as quoted in the opinion):

"After the bailiff was sworn, the trial court asked him, 'Do you want all of the jurors to go in the deliberation—' The bailiff responded, 'Yeah. All 14.' The trial court said, 'Okay. [¶] All 14 jurors, please go into the jury deliberation room. [¶] The alternates, since you won’t be deliberating, just leave your documents on the seat. [¶] Everybody, take your documents. You will be given the exhibits, the verdict forms, and questions forms.' After the seated and alternate jurors left the courtroom, the trial court stated, 'The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room.' After the jury returned its verdicts, the trial court sent all the jurors, including the alternate jurors, back to the jury deliberation room."

What about that's unclear?  Seems to me pretty darn clear that all 14 were in the same room, right?

The Court of Appeal says "That the alternate jurors were sent back with the seated jurors does not mean that they entered the jury room itself and stayed there."  But where else would they go?!  The trial court expressly said:  "All 14 jurors, please go into the jury deliberation room."  The trial court also said:  "The record will reflect that all jurors, including the two alternates, have gone into the exhibit [sic] room."  Literally:  How much clearer could the record be?

The Court of Appeal also says:  "Moreover, that there was no objection by defense counsel suggests that the alternates were not present."  Hmmm.  Let's see.  Can anyone come up with an idea as to why the defense counsel might not object that doesn't rely on the assumption that the trial court was wrong when it repeatedly said that all 14 jurors were going to the deliberation room?  Something along the lines of the defense attorney not knowing -- as the trial judge and bailiff clearly didn't -- that this was improper?  Or the defense attorney not paying attention?  Or not caring?  The theory that the facts must not be X because X is error and hence the defense attorney surely would have objected to X just seems utterly implausible to me.  Yet that's where the Court of Appeal comes out.

So, honestly, I'm sincerely confused.  Because for the life of me I don't understand what's confusing.

Look, as to whether this constitutes reversible error, on that point, I'm admittedly open.  Seems to me that there's a pretty good "no blood, no foul" argument as long as the alternates didn't participate in the actual deliberations.  Which, here, there's no evidence that they did.

The strongest response to that position, however, is the clear holding of the California Supreme Court.  Or at least a holding that's pretty darn clear to me.  Here's the relevant authority:

"In People v. Britton (1935) 4 Cal.2d 622 (Britton), the California Supreme Court addressed the propriety of an alternate juror’s presence in the jury room during deliberations. The court in Britton approved the opinion in People v. Bruneman, supra, 4 Cal.App.2d 75, a then recent Court of Appeal opinion, and, over the dissent of two justices, adopted as its own the Court of Appeal’s opinion in Britton in pertinent part as follows: “Appellants claim reversible error because when the jury retired to deliberate the court directed that the alternate juror should retire to the juryroom with the jury, and that this was error even though the court instructed such alternate juror that while she might listen to the deliberations of the jury, she should not express any opinion or participate by word or action in those deliberations. [¶] Subsequent to the appeal herein this identical question was decided in People v. Bruneman[, supra,] 4 Cal.App.(2d) 75 [40 Pac.(2d) 891], and we agree with the conclusions therein stated, that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error.”

Just so we're clear on what the California Supreme Court said.  As its holding.  Here it is again:  "[W]e agree . . . that the presence of the alternate juror in the juryroom while the jury was deliberating upon its verdict was reversible error."  Again, how much clearer could the Court be?

Now, it'd be one thing if the California Court of Appeal was the California Supreme Court.  In which case it could legitimately say:  "Well, that's a stupid rule."  But it's not.  Last time I checked, anyway, only the California Supreme Court could overrule controlling precedent from the California Supreme Court, not the Court of Appeal.

Sure, the rationale of the California Supreme Court's rule was perhaps undercut by a subsequent U.S. Supreme Court holding that the presence of an alternate in the jury room wasn't a "plain error" that violated Federal Rule of Criminal Procedure 24.  But that's a holding about errors under the FRCP not squarely applicable to California.  And, yes, there are subsequent California cases that hold that it's not necessarily reversible error for a defendant to stipulate to allow alternates in the jury room.  But that's not exactly what transpired here either.

The Court of Appeal never comes out and says that "the holding in People v. Britton is no longer good law."  But it seems to me they have to say that in order to reach the conclusion it reaches.  And the fact that it's reluctant to come right out and say "We've hereby decided to ignore a controlling holding of the California Supreme Court" probably says something.