Nothing says Cinco de Mayo like arbitration. I have no idea what that means, so don't ask. Anyhow, the Consumer Financial Protection Bureau will propose a regulation today that will ban contract terms that prohibit consumers from filing class action lawsuits. And the Chamber of Commerce is none to happy about this development. You can read the details at politico.com, which posted an opinion piece by Lisa A.Rickard, the president of the U.S. Chamber of Commerce's Institute for Legal Reform and David Hirschmann, the president and CEO of the U.S. Chamber of Commerce's Center for Capital Markets Competitiveness. If you don't have time to read the article, allow me to paraphrase: "Damn trial lawyers! Get off my lawn!"
Every now and then I look at a new appellate decision and experience the shock of reading something that I would have guessed was certain to never come up before seeing it in print. So I was helping my daughter study for a history test the other day. Her fifth grade class was in a chapter about American industrialization and the expansion of the United States to the Pacific (manifest destiny and all that). The war with Mexico received a mention in her study guide, along with a treaty entered into with Mexico at the end of the war, the Treaty of Guadalupe Hidalgo. Trick question: what are the chances that an appellate decision today would rest, in part, on the need to examine the Treaty of Guadalupe Hidalgo? You should say "zero," but, since I asked, you know that's not the answer. The correct answer is, ding ding ding, 100%.
In Friends of Martin's Beach v. Martin's Beach 1 LLC (April 27, 2016) the Court of Appeal (First Appellate District, Division Two) considered issues arising in a dispute between private land owners and the public over an area of inland dry sand at a popular beach. Here is the paragraph that resulted in my double-take:
The case presents a number of intriguing issues, among them the meaning of Article X, section 4 of the California Constitution and its application, if any, to lands for which title is derived from a provisional Mexican land grant confirmed by a federal patent issued in the 19th century. These issues require consideration of a federal statute known as the Act of 1851 and the Treaty of Guadalupe Hidalgo, which that Act implemented. The case also concerns the common law theory of dedication of land to public use and what facts suffice to establish the elements of such a claim. Creating yet additional interest, the State of California and its agencies contend in an amicus brief that they were indispensable parties to this action because it involves California tidelands and that the judgment rendered without them is void.
Slip op., at 1-2. As an aside, if these issues also sound "intriguing" to you, you are officially a law nerd.
Today's lesson: Never say never.
We all need a bit of levity on Friday, so take a moment and enjoy one paragraph from City of Palm Springs v. Luna Crest (March 17, 2016), a recent opinion from the Fourth Appellate District, Division Two, that captures the humor sometimes hidden in the law.
Luna Crest, Inc. opened a medical marijuana dispensary in the City of Palm Springs without obtaining a permit to test whether the Palm Springs ordinance requiring such a business to have a permit was invalid. Luna Crest sought an injunction against further enforcement, claiming that federal drug laws preempt the City’s ordinance. The Court observed:
To be sure, as the City points out, there is a certain irony, if not hypocrisy, in Luna’s invocation of federal drug laws as a basis for invalidating the City’s permitting requirements, given Luna’s intention to operate a medical marijuana dispensary in violation of those very federal drug laws. The City cites no authority, however, for the proposition that irony or hypocrisy alone may vitiate standing, and we are aware of none. We turn, therefore, to the merits of Luna’s claims.
Slip op., at 5. Never let someone challenge your standing just because of the irony or hypocrisy of your position. Never.
Have a great weekend, and, as they say, smoke 'em if you got 'em.
In an article from December 2014, Sidney Powell offers a colorful description of a proceeding in which a federal judge excoriated a federal prosecutor for lying in his courtroom. Sidney Powell, Judge Kevin Thomas Duffy Blasts Federal Prosecutor For Lying in Court (December 16, 2014) observer.com. Sidney Powell worked in the Department of Justice for 10 years and was lead counsel in more than 500 federal appeals. She is the author of Licensed to Lie: Exposing Corruption in the Department of Justice. Sadly, these sorts of abused of power appear to be increasing in frequency (or the technology age has rendered them easier to detect and widely disseminate).
As a victim (who later prevailed at trial) of law enforcement over-reach regarding the various Vehicle Code provisions relating to cell phones, it is nice to see some common sense out there (it is rare these days). In People v. Spriggs (Feb. 27, 2014), the Court of Appeal (Fifth Appellate District) held, after weighty deliberation, that a statute about talking on a cell phone really doesn't apply to looking at a map on the phone (seeing as how the "talking" part isn't implicated). Offered for informational purposes and your entertainment only.
The Ninth Circuit did us a solid yesterday. In Edward Peruta v. County of San Diego (9th Cir. Feb. 13, 2014), the Court held, 2-1, that California's restrictions (as applied in San Diego County) on firearm carry in public improperly infringe upon the Second Amendment's guarantee of a citizen's right to keep and bear arms. At least in the more populated counties of California, you essentially cannot obtain a license to carry a concealed weapon; almost no cause (other than being best buddies with the Sheriff or a prominent politician) is good enough. Los Angeles County and Los Angeles City are both on the extreme end of this construction. But this gives me hope that when I choose to carry a weapon for self defense, it will be a lawful act. I am not suggesting, by the way, that I would ever choose to act in an unlawful manner; I'm just looking forward to the time when fewer of my rights will be implicitly negated by impossible requirements attached to their exercise.
The discussion of what it means to "bear" arms, in the historical context, is highly entertaining.
As Captain Renault said, "I'm shocked, shocked, to find that gambling is going on in here!" And like Captain Renault, not really. On the last day of 2013, I noted in a post some news stories about the happenings in a class action suit alleging a scheme to transform most or all of $6 million settlement into attorney's fees without fully disclosing the scheme to roughly 600 clients until it was too late for them to do anything about it. Those articles were eye-opening to say the least. But now I can safely say that you haven't seen anything yet. I have in my digital fingers the appellate briefs from the main case (the appeal of an injunction issued by the trial court). The Respondent's Brief, in particular, is something you won't see very often. Check them out:
I've covered the very interesting moves of attorneys from Initiative Legal Group to Capstone Law here. Now, a suit filed in San Francisco Superior Court, entitled Maxon v. Capstone Law, CGC-13-528884, offers a possible context for the rapid movement of attorneys from Initiative Legal Group to Capstone Law, and that context is disturbing. In a column on law.com, Scott Graham, of The Recorder, reports on the allegations contending that Capstone Law was formed to hide assets from a fraud lawsuit filed against Initiative Legal Group related to dealings with 600 clients. Scott Graham, Plaintiffs Shop Hit With New Ethics Suit, The Recorder (February 21, 2013).
A story first made the rounds quietly in November of last year about a proposed ethics rule that is just broad enough and vague enough that it can be used as a tool by AOC to punish any judge with the gumption to criticize decisions of the AOC. That rule has passed, unsurprisingly (Note: when you see a news report that something entirely likely to occur is "unexpected," that should tip you off to the agenda of the reporter, not that the event was "unexpected"). It was entirely expected that it would pass. It was proposed to stifle dissent by using the costs associated with an ethics inquiry to shut down free speech.
We have two simultaneous problems in California's judicial branch of government, a constitutional and co-equal branch. First, the judicial branch is catastrophically underfunded. The Los Angeles Superior Court should not be shutting down courtrooms. A member of the bench who shall remain nameless told me that with the coming courtroom closures in Los Angeles, the average caseload that is currently running somewhere between 550 and 600 cases per judge will jump by about 150 cases per courtroom. What sort of justice will anyone receive under those conditions?
Second, the AOC has ballooned into a bloated bureaucracy that serves itself. Why did the AOC mushroom from 100 employees to well over 1,000 employees inside of a decade? Fixing this bloat would save some money. Getting rid of the endless boondoggle of the unicorn known as CCMS saved some money, but it doesn't close the gap between current funding levels and what those levels should be at to have courts in each county that can manage the caseloads they face. I don't know the right caseload for a civil trial court, but it isn't 550 case, and it surely isn't 700 cases. You'd probably receive real attention and a better measure of justice if those caseloads were more like 250-300 cases per courtroom.
I condemn the current and past legislatures for allowing this to happen. I condemn AOC for succumbing to corruption and administrative bloat (I refer to the allegation of embezzlement in the alleged amount of $100,000 that was not reported or charged as an example of that).
So to the massive audience of Legislators reading this and waiting for my go-signal, here it is: Fix the funding shortfall (who cares if you have to cancel a high speed train to do it - this is a co-equal branch of government we're talking about) and root out the administrative bloat (in other words, start insisting upon the firing of AOC staff until you have half the number you started at and then reassess, and then get rid of some more).
By the way, if someone handed me half the amount of money that was wasted on CCMS, I could have a Statewide court system database up and running in a few years, with enough left for me to retire on in a castle that I would have constructed out of rare marble on my own private island.