New Case Law - 1) Probate Order Not Appealable and 2) Attorney Almost Sanctioned for Calling Opposing Counsel "The Civility Police" (Young v. Hartford)

 

Appealablility of probate order

The chief issue in Young v. Hartford (G064034, November 12, 2024) was the viability of the appeal itself.  The respondent made a motion to dismiss the appeal, arguing that the appeal was not from a final judgment but from an "interlocutory order," i.e., an order which is not deemed directly "appealable."  Most orders, of course, may not be appealed directly but are reviewed by the appellate court upon review of the final judgment. In the context of a Probate Court proceeding, there is no final judgment per se but statutes provide that certain orders have sufficient "finality" to be appealable.

Writing for the Fourth District, Division Three, Justice Delaney explained the subject orders were, in fact, not appealable, as they involved "suspension" rather than "removal" of a probate trustee.  Specifically, Probate Code section section 15642 did not make such an order of "suspension" directly appealable:

This case presents a novel or nearly novel recurring question of appealability: Are orders suspending trustees and appointing interim trustees in probate court directly appealable? We publish this opinion to provide a clear answer: they are not. (Id., p. 2.)

The trial court therefore granted the motion to dismiss the entire appeal.

Request for sanctions for filing a frivolous appeal

Along with this motion, respondent also filed a motion for sanctions, arguing the appeal itself was "frivolous."  While the appellate court did not find the appeal itself frivolous, given the novelty of the legal issue, in reviewing the record teh court found letters from counsel for appellant to be troubling:

However, we are troubled by the tenor of defendants’ attorney’s correspondence with plaintiff’s attorney, which plaintiff has provided in connection with her motion for sanctions. The third of the four letters is particularly problematic. Defendants’ counsel Michael Leight wrote, “I am not sure why you think you are the civility police, but I want you to stop wasting my time complaining that I have hurt your feelings. [¶] If you would like ‘to go on record,’ you should ‘go on record’ some place else because I am not interested in your opinions about whether I am respectful or disrespectful. [¶] I will communicate with you in exactly the manner that I believe is appropriate, whether the communication is in a courtroom or otherwise.” Plaintiff’s filing does not give us the full context of these comments, but we struggle to conceive of a possible justification for them. (Id., p. 12.)

The appellate court noted that attorneys are required to be "civil" at all times and this language hardly personified such.  The Fourth District nonetheless denied the request for sanctions but noted this denial was made "this time," a clear warning against future incivility:

Defendants’ counsel’s letter appears to reflect a disturbing lack of interest in these principles, particularly in his belittling comments about the “civility police” and “hurt . . . feelings.” In combination with the two cases discussed above, it paints an unfortunate picture of defendants’ counsel’s approach to the practice of law, and transformed what otherwise would have been a straightforward denial of a sanctions motion, fit only for a footnote, into a close call consuming pages of this opinion. In other words, this letter served only to imperil counsel’s interests and those of his clients, rather than advancing them. This time, we decline to impose sanctions. (Id., p. 14; emphasis added.)

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"Gaslighting" - A Post-Election Update About PBS' Claimed "Four Point Lead" for Harris

The Media's Emperors Have No Clothes

In prior articles, we discussed "gaslighting" in the litigation context. However, given what occurred on Tuesday night, further discussion is warranted.

As an appellate lawyer, I know that one’s own credibility is of utmost importance.  During oral argument, a Justice may ask a question that relates to the record upon appeal, and either exaggerating or selectively quoting from the record can forever harm one's credibility before that court.  This not only undermines the lawyer but, more importantly, the client's case.

So it is worthwhile to point out some of the "gaslighting" occurring during this election cycle, and the loss of credibility that should result.  Gaslighting is defined as not just a false statement but one designed to mislead, and, in particular, to have the listener doubt a conclusion formed by their own common sense and experience.

First, note the supposed "four-point lead" for Vice-President Harris trumpeted by tax-payer-funded PBS.  This was so although perhaps the best pollsters of all, TippInsights.com, showed no such clear lead for Harris:

https://www.pbs.org/newshour/politics/harris-has-4-point-lead-over-trump-in-final-pbs-news-npr-marist-election-poll

Another popular "gaslighting" trope involved Trump’s incredibly popular Madison Square Garden rally, namely that criticism of the rally caused a political shift toward Vice-President Harris.  Here Fortune was among the guilty parties:

https://fortune.com/2024/11/02/election-odds-donald-trump-lead-kamala-harris-madison-square-garden-rally-electoral-votes/

A sillytrope not exactly borne out by the actual votes in the election, of course.

Add to this MSNBC's incredible claim that President Trump declared victory "before" he actually had won; this gaslighting was not doubt due to the fact that traditional media was holding out hope Harris was going to come from behind, no matter the mathematics:

https://www.msnbc.com/opinion/msnbc-opinion/trump-declare-victory-early-harris-election-2024-rcna178400

Of course, the election had already been called by Fox News -- but had not yet been called by Comcast’s Trump-hating NBC.

Most humorous of all was Oprah Winfrey's claim that if Donald Trump won there would be "no more elections."  Was she lying to us or to herself or both?  Decide for yourself:

https://www.msn.com/en-us/news/politics/oprah-winfraey-issues-ominous-warning-about-a-second-trump-presidency-at-harris-s-final-rally/ar-AA1tx4zH 

The silliness of this prediction is borne out by the fact that there are reports the Democrat Party's National Committee is already talking about tweaking its strategy in subsequent elections.  Which would be a waste of time if there were indeed no further elections.

A final example of "gaslighting" is the faux media outrage, designed to stoke even more outrage among Puerto Rican voters, over a tacky joke made at the Madison Square Garden rally.  But what really happened? President Trump won handily and the Republican Party flipped the Governor’s Office in Puerto Rico.

  
In other words, Puerto Rico elected a Republican Governor.  So the attempt at gaslighting by way of calling a comedian's “joke” a campaign “statement” — and thus trying to equate a comedian’s joke with a candidate’s views — didn't work nationally or even in Puerto Rico itself.

Which gives us some hope.

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New case law - Because cannabis is illegal under Federal law, County had no right to give Conditional Use Permit to grower (Crandall v. Santa Barbara)

In JCC Crandall LLC v. County of Santa Barbara (October 29, 2024) B333201, the Second District, Division Six, has declared that no matter what one may think, possession of cannabis remains illegal under Federal law and therefore cannot be "legal" under the laws of California or any other state:

Many Californians have high expectations that cannabis is legal in California. This is a reasonable assumption because Civil Code section 1550.5 says it is. We regret to inform that cannabis is illegal in California because federal law says so. (Id., p. 1.)

The specific context in which this statement was made involved a dispute over an existing half-mile-long easement previously used to transport legal agricultural products; however, the easement was now to be used by a cannabis grower, a different use of the easement to which the servient landowner objected.  Santa Barbara County nonetheless granted a CUP, or 

Conditional Use Permit, to the cannabis facility, even though this CUP required use of the disputed easement:

The county grants a conditional use permit (CUP) for the cultivation of cannabis. To issue a CUP, the county’s land use code requires a finding that the streets and highways are adequate for the proposed use. A private easement over a neighbor’s land is the only access to the land subject to the CUP. The owner of the servient tenement objects to the use of his land to transport cannabis. The servient owner petitions for a writ of administrative mandate challenging the county’s grant of the CUP. The trial court denies the petition. We reverse because under federal law cannabis is illegal in California and everywhere else in the United States. The servient tenant’s objection on this ground is sufficient to defeat the CUP. That the possession and cultivation of cannabis has the imprimatur of legality in California is beside the point. (Id., pp. 2-3; emphasis added but footnote omitted)

Crandall first discussed the objection by the landowner and its claim it must consent to the use of the easement for cannabis transport.  The Second District found that Business & Professions Code section 26051.5(a)(2), providing that a cannabis owner must show "consent" to use the property where the growing will take place, required such consent from the "landowner" of the easement used to transportation.  This section therefore was not limited to situations where the "landowner," the word used in the statute, is a landlord whose tenant is using the property for cannabis, the restrictive reading urged by the County.

The Second District also found that even if section 26051 did not require the "landowner" to give consent, the transportation of cannabis exceeded the scope of the easementm, granted for agricultural purposes, because it involved the transportation of an "illegal" substance.

Specifically, under the Supremacy Clause of the United States Constitution, Federal law makes cannabis illegal in every state.  Therefore, in perhaps the most important portion of the opinion, the court explained there was no doubt the "product" to be transported via the easement was illegal:

It is often said that cannabis is legal in California. The statement is not true. Under federal law cannabis is illegal in every state and territory of the United States. (See Controlled Substances Act, 21 U.S.C. § 801 et seq.; 21 U.S.C. § 812 (c)(10); City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355, 377.) Article VI, Paragraph 2 of the United States Constitution, known as the Supremacy Clause, provides in part, “The Constitution, and the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (Id., p. 5.)

Noting there is a difference between permission to transport a legal and  an illegal product, the appellate court stated the easement did not contemplate the transport of the product of illegal cannabis growing.  Consequently, it was a "taking" of the petitioner's land to require that it involuntarily provide an easement:

The scope of the easement does not include the illegal transport of cannabis. Civil Code section 1550.5, subdivision (b) cannot expand the scope of the easement to allow such use. A statute that authorizes the permanent physical invasion of the land of another is void as violating the Takings Clause of the Fifth Amendment to the United States Constitution. (Loretto v. Teleprompter Manhattan Catv Corp. (1982) 458 U.S. 419, 426) (Id., p. 7.)

The judgment of the Hon. Jed Beebe, Judge Presiding, finding the CUP and the easement required to issue the CUP was properly granted, was therefore reversed.

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Legal Profession and Wages - is the value provided by lawyers properly compensated?

Lawyer Compensation

To many it may seem odd to ask if lawyers are sufficiently valued for the value they add or, put more simply, are fully compensated for their skill and hard work, especially in light of the length of time and expense it takes to become a lawyer.  Compared to service-industry workers, who are notoriously undervalued, it may seem odd to ask if someone who makes close to or even more than six figures is "valued."

The assumption underlying this question includes the costs, out-of-pocket and missed opportunities, occasioned by the route it takes to become licensed.  An ever more important assumption is the number of hours worked by lawyers -- often at the relentless insistence of their partners and corporate masters -- which results in an hourly wage far less than what people might assume lawyers earn.

Two recent articles brought this question to mind.  The first article notes that all workers are, on average, grossly underpaid in terms of salaries versus productivity.  While productivity has increased 170% since 1980, wages have only increased 40%.  (https://www.epi.org/productivity-pay-gap/)  As this article notes, before 1980 pay rose with productivity.  One obvious explanation is the unpopular and mich-vilified observation that there has been an excess of labor vis-a-vis demand for labor since the 1980s, tipping wage negotiations in favor of capital and against labor.

The second article notes that lawyers in certain specialized areas, such as mergers tax compliance, and private equity, are now demanding the same sort of compensation that investment bankers earn. (https://www.wsj.com/business/rock-star-law-firms-are-billing-up-to-2-500-per-hour-clients-are-indignant-61b248c2?page=1)

This begs the question as to why the"finance bros" with lesser licenses have earned so much more vis-a-vis a lawyer who defends their employer in Federal Court on an important issue.  The answer is that the perceived value provided by a Wall Street Trader is greater than that of a lawyer who works on the legal side of same the deal.

So we must ask: will this trend of increased billing rates continue and should it continue?  Or, put another way, would you advise your own children to enter the legal profession?  Your author's bias is clear, as I often tell young people to calculate the cost of the required undergraduate, graduate school, and bar-taking periods and compare that to a starting lawyer's salary, and, then, divide this salary by the number of hours worked.  

Every single young person who has done this calculation has come back to me with a look of horror on their face.

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From the Wall Street Journal - The disturbing trend of young men falling behind

An article from the Wall Street Journal entitled, "America’s Young Men Are Falling Even Further Behind"
(https://www.wsj.com/lifestyle/careers/young-american-men-lost-c1d799f7) examines the trend of young men in their 20s and 30s who have failed to launch.  Or, as the authors point out, have failed to achieve what in Spanish is called "encaminado."

Unfortunately, the article begins with an anecdotal story about parents who somehow permit their adult children to live at home and do next to nothing. These individual stories, of course, prove nothing, for the children would assuredly find something to do with their lives and a place to live on their own if their parents were, for example, suddenly kidnapped by aliens. 

But when the article leaves the example of specific children and delves into statistical and societal trends, it finds evidence of a shocking phenomenon, namely, that the percentage of men who are "NEETS" is much higher than it is for women:

Among noncaregivers who aren’t disabled, men are more likely to be neither employed, in school nor in workforce training, what economists refer to as NEET. Around 260,000 more 16- to 29-year-old men than women fell into this category as of the first half of 2024, according to think tank the Center for Economic and Policy Research, representing 8.6% of young men and 7.8% of young women. Rates are up for both groups since 2019, but down from a Covid high. 

As the article notes, a few years ago educators began warning us that fewer and fewer boys of high school age were applying for and planning to go to college.  The results from this trend are multi-faceted, but here is one result, the number of young men living at home vis a vis women:

Further, young men on average spend an additional one hour a day "alone" than do women:

The article does discuss how the "pandemic" (by which they mean the decision to close society in response to the pandemic) has played a role in delaying the maturation of young men.  Your author, however, prefers more prosaic explanations and notes the article fails to discuss the amount of time men, vis a vis women, spend online and, in particular, playing video games.

Dissenting Opinion Spotlight: Appeal should be re-briefed where jury found the actual tortfeasor had no liability

When majority upholds verdict finding School District but not employee is liable, a dissenting Justice asks the parties to submit new briefs

What happens in an appeal if the parties do not brief what may ultimately be the dispositive legal issue?  A remarkable dissent by Justice Richman in the First District's opinion in A.H. v. Tamalpais Union High School District (September 24, 2024) A165493 and A166684, posits that in such an instance should not decide the case on the issues actually briefed, but should instead ask for re-briefing on the most important legal issue raised by the case.

The complaint by A.H. alleged, inter alia, that he was molested by the employee of the defendant School District:

While still in middle school, A.H. began taking private tennis lessons from Burgos, and he joined the Tamalpais High School tennis team as a freshman. A.H. viewed Burgos as a mentor and the “most important person in [his] life” other than his parents. Burgos began sexually abusing A.H. in 2003. The abuse took place in Burgos’s office and later in the coaches’ locker room, both of which were next to the school’s boys’ locker room.m (Id., p. 2.)

The jury found for the plaintiff and the appellate court upheld the verdict, finding the defense had not raised any issue as to either jury instructions of the evidence admitted which required the verdict to be overturned:

On appeal, the District raises two claims: first, that the trial court improperly instructed the jury and, second, that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s conduct with others. Finding no error, we affirm. (Id., p. 1.)

The dissent, however, found the parties had not briefed a crucial issue, and therefore dissented despite the fact it found no fault with the majority's analysis "as far as it goes."  According to Justice Richman, the crucial issue not briefed was not waived by the appellant but should in fact be re-briefed:

But there is where I part company with my colleagues. I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue “not proposed or briefed by any party.” I would do this under the authority of Government Code section 68081, which provides in pertinent part as follows: 

“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.” (Dissent, p. 2.)

Specifically, the dissent argued the parties had not fully briefed the crucial issue of "whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment." (Id., pp. 1-2.)  The majority opinion noted that  the School District did not argue the apportionment of fault between itself and the employee was wrong, and therefore failed to make the distinct argument that the person committing the sexual assault cannot have zero liability while the party who is liable for this person's acts (for failing to supervise or properly hire him) has 100%.  

While the majority found the District had waived this argument, the dissent wanted the Appellate Court to utilize its power to order re-briefing so that this central flaw in the verdict could be considered.  As the dissent explained succinctly, it simply cannot be that the District is liable for the tort of its employee but the employee himself was not liable:

The jury went beyond the “extraordinary” request by counsel for A.H., and allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him. Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a case cited by the District is, on this point, on point. (Dissent, p. 3; emphasis added.)

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