California Appellate Law Blog : California Appellate Lawyer & Attorney: Archer Norris Law Firm: Trial, Business, Torts: Sacramento, Bay Area, Los Angeles, California

The United States Supreme Court heard oral argument last week in a case further exploring the contours of the Miranda warning, J.D.B. v. North Carolina.  The issue is whether an interrogator should, or must, consider the suspect's age in determining whether to give the warning.  The facts involved a 13 year old student corralled in a school office with two police officers and an assistant principal.  The dispute is whether, under the Court's latest Miranda jurisprudence, a court should presume the student felt free to leave--the upshot of the North Carolina supreme court's holding that no Miranda warning was necessary because the boy was not in custody.

Like the Court's prior decisions revisiting Miranda, the ideological divide is wide and judicial temperature, well, a little heated.  Counsel for the student argued that "The empirical data demonstrates to us that the older a child is to an adult, the more adult-like they are."  Justice Scalia immediately fired back, asking if she really needed data to reach that conclusion.  Ouch.

Of course, the gallery broke up.

And when Justice Breyer asked North Carolina Attorney General Roy Cooper, "You know the sentence I'm referring to in my dissent, presumably,?"  Scalia broke in with "Some people don't read dissents.  He may not have read it."  To which Breyer parried, "I live always in hope."  Hope, and on a Supreme Court with Justice Scalia, a thick skin. 

Here's a little taste of Scalia at his bitter best, dissenting in Dickerson v. United States, 530 U.S. 428, 465 (2000), back in the bad-old-days when Miranda revision wasn't going his way:

Today's judgment converts Miranda from a milestone of judicial overreaching into the very Cheops' Pyramid (or perhaps the Sphinx would be a better analogue) of judicial arrogance. In imposing its Court-made code upon the States, the original opinion at least asserted that it was demanded by the Constitution. Today's decision does not pretend that it is -- and yet still asserts the right to impose it against the will of the people's representatives in Congress.

Tell us how you really feel, Antonin.

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As appellate veterans know, oral arguments in the Ninth Circuit frequently tend to be hotter than in the state appellate courts.  And one of the great things about being director of the Hastings Appellate Project, the clinical program in which Hastings students handle pro bono cases in the Ninth Circuit, is watching the students argue their cases.  On any given day, the Hastings students are easily among the best advocates on the calendar.  Which brings to mind that old saw about how you get to Carnegie Hall...

And last week was no exception.  Teresa Li, third-year law student at Hastings and Archer Norris law clerk, argued in the Ninth Circuit.  Under my supervision as well as that of assistant director Stephen Tollafield, Teresa and fellow student Brian Pettit represented a pro se plaintiff in an employment discrimination case.  The case involved the unsettled state of the federal pleading requirements since the United States Supreme Court decided Twombly and Iqbal.  Those cases set out a "plausibility--fair notice" standard replacing the longstanding "no set of facts" standard from Conley v. Gibson.  The federal courts have been perplexed ever since, including the district court which dismissed the complaint for failure to meet the Twombly and Iqbal standards.

But on March 16, 2011, Teresa argued before Circuit Judges William Fletcher, Procter Hug, and Milan Smith.  After Teresa laid out a litany of reasons why the plaintiff's complaint satisfies Twombly and Iqbal, Circuit Judge Smith interjected that he thought her client has a "slum dunk" case.  The decision is pending. 

Photo, left to right:  Stephen Tollafield, Brian Pettit, Teresa Li, Gary Watt

The oral argument audio is available at:
http://www.ca9.uscourts.gov/media/view_subpage.php?pk_id=0000007204

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An ongoing and unresolved question in California is whether Labor Code section 2750.5 applies to homeowners and makes them the "employer" of an unlicensed contractor and the unlicensed contractor's employees.  Think about that one.  You hire a contractor to spruce up the bathroom or remodel the kitchen.  One of the workers is injured.  And the contractor turns out to be unlicensed. 

So?  So the Privette doctrine does not apply.  So myriad Cal-OSHA and other regulations may be used by the plaintiff to create a presumption of negligence under Evidence Code section 669.  (Elsner v. Uveges (2004) 34 Cal.4th 915, 928.)  So being deemed plaintiff’s employer can also expose you to civil and criminal penalties, not just tort liability.  (See, e.g., Labor Code § 6423 et seq.)  And depending on the language in your homeowners’ policy, being deemed an “employer” could trigger the “business pursuits” coverage exclusion.  These are only some of the ways that being deemed an employer can carry potentially devastating consequences.

As the California Supreme Court recently put it, "whether unlicensed contractors or their workers may or must be deemed the homeowners’ employees under [Labor Code] section 2750.5, either for purposes of tort liability generally or with regard to Cal-OSHA specifically, are difficult and unsettled questions in this court.”  (Cortez v. Abich (2011) 51 Cal.4th 285, 291.)  And unfortunately, the Court missed a golden opportunity in Cortez to resolve these issues, leaving in place instead an alternative approach that is bound to create inconsistent results in the trial and appellate courts.

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Ever notice how the appellate courts provide "guidance" to the lower courts on remand?  You know what I mean, "we take no position" and "while the lower court is free to revisit" and so on.  Of course, usually followed by a magnificent qualifier, that says "but" in capital letters.  Here's a gem:

Because we are vacating the district court's Rule 11 orders on other legal grounds, we express no opinion at this stage about the particular reasonableness of any fees the district court elected to award Mattel.  We do, however, encourage the district court on remand to ensure that the time spent by Mattel's attorneys was reasonably and appropriately spent in relation to both the patent frivolousness of Christian's complaint and the services directly caused by the sanctionable conduct. FN 12

FN 12: For example, because the action was frivolous on its face, why would Mattel's attorneys need to spend 700 hours . . . for the summary judgment motion and response? . . . Mattel's theory was stunningly simple and required little explication . . .  Christian v. Mattel, 286 F.3d 1118, 1131-32, FN 12 (9th Cir. 2002).

Don't you love it?!  We express no opinion but see our footnote for our actual opinion.  And oh, by the way, if you (district court) fail to correctly read our "no opinion" you will be reversed.  Again!

Remand diplomacy. 

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