Gamo v. Merrell (Cal. Ct. App. - Aug. 14, 2025)

This seems right to me. Just because a statute (here, the Consumer Legal Remedies Act) allows for one-way fee shifting if the plaintiff prevails (but not if the defendant prevails), that doesn't categorically bar a defendant from obtaining cost of proof sanctions for an improperly denied request for admission. One's a discovery provision and the other's about the merits. Two different things. For example, you an get cost of proof sanctions even if you lose.

The case here involved the purchase of a Masserati and the disputed value of the plaintiff's trade-in; the dealership gave him $2,000 for it, but the plaintiff said it promised him $6,500. Plaintiff denied RFAs that asked him to admit, for example, that he initialed each page of the written contract. (It seems to me like there's no reason not to admit that one if it's indeed true, but whatever.) Defendant subsequently prevailed at trial. The trial court thought it had no authority to award cost of proof sanctions given the one-way fee provisions of the CLRA, but the Court of Appeal reverses and remands.

I'm on board for pretty much everything that Justice Moore says in the opinion, with one caveat. There are some RFA's that are pretty much case-dispositive; e.g., "Admit that Defendant did not violate the CLRA." None of those were propounded here, but if they were, that might be an entirely different story: I could see an argument that, as to those, a fee award on behalf of a prevailing defendant might be precluded by the underlying statute.

So I would drop a footnote to leave that particular issue open were it me. Again: Doesn't apply here, but I could see it potentially applying in other cases. So no categorical rule.

Nwauzor v. The GEO Group (9th Cir. - Aug. 13, 2025)

Earlier today, Judge Bumatay, joined by Judges Callahan and VanDyke, authored a strongly worded, 27-page single-spaced dissent from the denial of rehearing en banc in this case, which involves the minimum wage applicable to civil immigration detainees. Simultaneously, Chief Judge Murguia, joined by Judge Fletcher, spent a grand total of two and a half pages responding to Judge Bumatay. And Judge Collins, joined by Judges Nelson and Bress, says in single paragraph that he'd have taken the case en banc for the reasons stated by Judge Bennett in his panel dissent.

Those disparate approaches probably speak volumes about various personalities on, and interactions between, some of the current judges on the Ninth Circuit.

Bieganski v. Shinn (9th Cir. - Aug. 12, 2025)

There were over a half dozen published Ninth Circuit opinions today, which comprised nearly 200 pages of single-spaced text. So a lot to read.

I nonetheless thought I'd only talk about this one, since it seemed to me the most doctrinally interesting.

It's a thorny area of the law involving affirmative defenses to criminal statutes. The normal rule, as you know, is that the state has the burden of proving the elements of a crime beyond a reasonable doubt. At the same time, however, the state can make affirmative defenses, and as to those, (1) the defendant has the burden of proof (which is turn often practically compels him to take the stand), and (2) is required to demonstrate those by the preponderance of the evidence (rather than the "beyond a reasonable doubt" standard). So it's a very big deal whether something's an element or an affirmative defense.

And what matters, the Supreme Court has held, is substance, not form. A state could not, for example, constitutionally say "It is a crime to be a nurse in a hospital when a patient dies, but it's an affirmative defense if the nurse shows they didn't cause the death." No good. You can see why.

Which brings us to today's case.

Arizona says that it counts as molestation if you deliberately touch a child's genitals. But it's an affirmative defense if you didn't touch them for sexual purposes. You see where the resulting burdens are. Arizona's statute in this regard is different than every other state, which has sexual motivation as an element of the offense. Is Arizona's statute constitutional, and is the defendant here (who was convicted based upon the Arizona statutory regime) entitled to federal habeas relief?

There's a ton to Judge Bybee's opinion. It's really quite good, and explains a very complicated doctrinal area in a clear and understandable fashion. He ultimately holds (alongside the rest of the panel) that the Arizona regime is unconstitutional, since it in substance turns an essential element of the offense (sexual motivation) into an affirmative defense.

What does a ton of work for Judge Bybee -- and understandably so -- is his claim that, as written, the Arizona statute would criminalize a massive volume of entirely innocent conduct if you took away the affirmative defense. When a parent bathes their child, after all, there's sometimes the occasional touching of the child's genitals and/or anus. Is that really molestation? Arizona says yes, albeit with an affirmative defense if the parent can prove that the touching wasn't sexually motivated.

That makes sense to me. A powerful argument. And the fact that prosecutors wouldn't charge parents for bathing their kids doesn't save the statute -- that relies on noblesse oblige to salvage an unconstitutional statute, and we're not down for that

Solidly argued. So you can see full well why the panel comes out the way it does.

So the opinion is worth mentioning (as well as reading) for that reason alone.

But I wanted to add one other thought as well.

Even more than the "bathing" argument, Judge Bybee's opinion relies a ton on the argument that the Arizona statute would criminalize anyone who changed the diaper of a baby. Judge Bybee articulates this argument over a dozen times, saying that (1) if you change a baby's diaper, you're automatically guilty of child molestation in Arizona (absent proof of an affirmative defense) [e.g., "Arizona’s child molestation scheme . . . . criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation."); and (2) if you instead don't change the baby's diaper, that's a crime too. ["Any parent or caretaker who fails to change a child’s diapers may be charged with criminal neglect.]

So you're damned if you do, and damned if you don't. Or, in Judge Bybee's words, "Arizona can thus punish both the changing and the nonchanging of a diaper. No matter what choices parents or caretakers make, they have violated Arizona law." P.S. - Oh, and if you see someone else change a diaper, you're guilty if you don't report that too. ("Given the mandatory reporting requirement, a parent who observes a spouse changing a diaper has an obligation to report the violation, under penalty of law.")

Okay. Again, a powerful argument.

My only comment, though, is about the underlying assumption. Does changing a diaper really involve the elements of child molestation under Arizona law?

I get it. If, during the diaper change, you touch the child's genitals, that satisfies the elements. Since the statute says that you're (facially) guilty if there's "any direct or indirect touching . . . of any part of the genitals, anus or female breast by any part of the body or by any object."

But, as a factual matter, how often does that really happen when you change a diaper?

I've got four kids. I've changed my share of diapers. For me the number of times that I touched their genitals while doing so (while holding a wet wipe or otherwise) was very small. If the kid was actively peeing on me during the diaper change, well, yeah, sure, sometimes I had to move to block the stream, and that could involve touching the genitals. But otherwise, I suspect that the number of times one actually manipulates the child's genitals during a diaper change seems relatively small.

Now, if we're talking about a diaper that's full of feces, that often involves a different story. That's a situation in which you may well have to touch (albeit with your covered hand, obviously) the child's anus or genitals. Gotta get that area clean, for sure. Yep, in that situation, you might well be facially guilty of child molestation under Arizona's statute.

But it nonetheless seems overly broad to repeatedly say, as the opinion currently does, that anyone who changes a diaper is facially guilty. (E.g., "Everyone who knowingly changes a diaper could be convicted of child molestation."). If we're talking about poo diapers, okay, yep, I think that's generally correct. At least as I recall the whole diaper-changing experience.

But for those half (or more?) of diaper changes that merely involve pee, I don't think that's usually a facial crime even under the Arizona statute. You've got a valid defense even beyond the affirmative one, since you probably didn't, in fact, usually touch the genitals or anus (or "female breast").

So I think today's opinion correct, but only with the caveat that whenever we're talking about changing a diaper, we're talking about diapers full of poo. Particularly that yucky, expansive, totally-all-over-the-place (my-God-what-have-you-done-here) baby poo.

With that graphic but important caveat, sure, I fully concur.

The Satantic Temple v. Labrador (9th Cir. - Aug. 11, 2025)

I get it. You want to challenge Idaho's radical anti-abortion law on constitutional grounds. Truly: I get the motivation.

But, if only as a practical matter, doing so by filing a lawsuit on behalf of "The Satantic Temple" -- i.e., a church that venerates Satan -- is not the way to go.

Very much so.

The Ninth Circuit dismisses the lawsuit for lack of standing, albeit with a remand to allow the plaintiff to amend the complaint to be more specific about a particular member of the church if it wishes.

But please listen. If you want to really bring the lawsuit, just bring it on behalf of the (anonymous) member herself.

Not The Satanic Temple.

I mean, I'm not a professional public relations flack, but come on. This one's fairly obvious.

Hohenshelt v. Superior Court (Cal. Supreme Ct. - Aug. 11, 2025)

I'm surprised that the Court wasn't able to get Justices Corrigan and Jenkins on board for this one.

The majority opinion goes out of its way to strike a middle ground. The issue is whether the Federal Arbitration Act preempts Section 1281.98 of the CCP, which provides that defendants in employment and consumer cases waive their right to arbitrate if they don't timely pay the arbitration fees that are due. The majority holds that it's not preempted, but simultaneously limits the statute to cases in which the failure to pay arbitration fees was wilful, grossly negligent, or fraudulent. This overrules a slew of Court of Appeal cases holding that the statute means what is says and that even accidental failures to timely pay arbitration fees results in a waiver of the right to arbitrate.

Given the language -- and, I believe, the intent -- of Section 1281.98, there's a strong argument that those Court of Appeal holdings were correct. Though Justice Liu's majority opinion does a decent job of making the contrary argument. (Which, of course, is now the law.)

Regardless, I would have thought that substantially narrowing the scope of Section 1281.98 would have been enough to get everyone on board for the anti-preemption holding. Apparently not. Justices Corrigan and Jenkins still believe that Section 1281.98 is preempted. So be it.

Analyzing the practical realities more deeply, maybe narrowing the reach of Section 1281.98 was (also?) an attempt to insulate the opinion from reversal by the United States Supreme Court. We'll see how that plays out in the end as well.

In any event, for now, the rule is a lot more favorable to nonpaying arbitration defendants than it was 24 hours ago. Section 1281.98 is going to apply in a ton fewer cases going forward.

Munoz v. Regents (Cal. Ct. App. - Aug. 5, 2025)

Okay, I guess. But particularly now having seen what the Trump administration has (successfully) done to Harvard, Columbia, and a wide variety of other universities -- over far less "egregious" conduct -- I would not want to be in the position (as here) of hiring undocumented immigrants at the University of California, likely in violation of federal law, and then just waiting to see what buttons the federal government decides to push to punish me for that decision.

But the Court of Appeal says that fearing backlash -- including lawsuits -- by the United States isn't a good enough reason to refrain from hiring undocumented immigrants, so unless either federal courts or the California Supreme Court step in, I guess we'll just have to see how this one ultimately plays out.

People v. Harlow (Cal. Ct. App. - Aug. 5, 2025)

I have always thought that California's mental health pretrial diversion statute gave potential criminals a fair degree of incentive to get someone to diagnose them with a mental disorder prior to committing a wide variety of common crimes. Today, the Court of Appeal holds that no advance planning is required: that as long as the diagnosis is within five years of the motion for pretrial diversion, the statute's satisfied, even if the diagnosis comes long after the actual crime.

Which is nice.

Now, it's still in the court's discretion, and there are some caveats. But this seems like a fairly substantial benefit to criminal defendants.

Many of whom, I suspect, could easily -- easily -- be diagnosed with a mental disorder. Even from a neutral physician, and even more so from a physician who's, shall we say, a bit more of a paid advocate.

In re Ja. O. (Cal. Supreme Ct. - Aug. 4, 2025)

This is low-key sweet.

Justices on the United States Supreme Court are -- as you know -- increasingly fractious. Dissents are  often vitriolic, majority opinions often respond in dismissive (or derisive) terms, etc. It's a very polarized institution, and the opinions amply reflect that fact.

By contrast, California Supreme Court opinions are often unanimous. And even when they aren't, they're often like this one today.

The question presented was when exactly the Indian Child Welfare Act of 1978 required county welfare department to ask extended family members about whether the child might be a potential Indian child. Some California appellate courts had held that inquiry duty existed whenever the child was placed in temporary custody, whereas others had held that this duty arose only when the child was removed from custody without a warrant. So the California Supreme Court granted review to resolve the conflict.

After the Court granted review, however, the California Legislature passed a statue that provided that this duty existed whenever the child was placed in custody, regardless of whether there was a warrant. So that resolved the issue, at least going forward.

So the question then became limited to cases arising before the passage of the statute. Which side of the appellate split was right for those, since they were governed by the then-existing statute.

The majority concluded that the same rule governed both cases: that the old statute imposed the same duty (albeit in somewhat less clear terms) than the new statute. And in so holding, Justice Jenkins' majority opinion cited a prior California Supreme Court case that noted that sometimes, a subsequent statutory amendment might give insight into the Legislature's intent regarding the prior statute. Justice Jenkins explained that the majority didn't have to rely on that principle here, since they thought the prior statute was clear enough on its own terms, but note that, hey, for whatever it works, that concept points the same way here.

Justice Liu, joined by Justice Kruger, concurred, and agreed with everything the majority said, including its result, but didn't think that it made sense to rely on the Legislature's subsequent statutory enactment to figure out the meaning of the prior statute. Justice Liu noted -- correctly -- that the majority opinion didn't actually rely on that principle here, so the two sides basically completely agreed on everything, but the concurring justices just wanted to make clear that, as a general principle, they didn't agree with the basic preexisting principle that future statutes may give insight into the meaning of older ones.

That's a difference, of course. But such a minor one in the scheme of things, and articulated on both sides with restraint and respect.

Something you rarely see these days in the federal Supreme Court.

Gutierrez v. Tostado (Cal. Supreme Ct. - July 31, 2025)

I always appreciate getting back from a family vacation and seeing a published opinion that helpfully summarizes for the reader its basic holding at the outset. You usually get these from particular justices on the Court of Appeal. But today, it's Chief Justice Guerrero who does it. Here's how she starts her opinion:

"We granted review in this matter to decide whether the statute of limitations for medical professional negligence claims within the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5)1 applies to an action for negligence brought by the injured driver of a vehicle rear-ended by an ambulance transporting a patient. We hold that MICRA’s statute of limitations does not apply under these circumstances.

Our holding follows from principles articulated in our previous decisions concerning the scope of MICRA’s statute of limitations, as well as the general rule that the applicable limitations period depends on the nature of the right being sued upon. Where, as here, a plaintiff sues a health care provider for breach of a duty owed to the public generally, as opposed to a violation of professional obligations owed to patients, the two-year statute of limitations for general negligence claims (§ 335.1) applies. This conclusion is supported by MICRA’s text, purpose, and legislative history, as well as relevant public policy considerations.

Because the Court of Appeal concluded that the MICRA statute of limitations applies here, we reverse its judgment and remand for proceedings consistent with this opinion."

The remaining 27 pages of the opinion fill in the details, and are important. But it's great to know at the outset where we're ending up.

Hara v. Netflix (9th Cir. - July 28, 2025)

It's not news to me to discover that I'm not hip. Indeed, it's fairly self-evident.

As a non-hipster, until today, I definitely did not know about the Netflix animated series, Q-Force, which is "about a group of underappreciated queer spies who must save the planet from various dangers." Each of the characters in the series is apparently based on a real person, and one of those real people -- a drag queen in West Hollywood -- later sued for trademark infringement.

The Ninth Circuit opinion that resolves this appeal contains tons of details about the series and some of the underlying real people. Plus screenshots. Plus pictures of the real people.

So I'm hipper today than I was yesterday.

But definitely still not hip. At all.

People v. Choyce (Cal. Supreme Ct. - July 21, 2025)

Given the multiple brutal rapes and murders (that we know of), it's understandably difficult to want Mr. Choyce to continue to live.

Not surprisingly, the California Supreme Court unanimously affirms his death sentence.

It doesn't even take 52 full pages. That's fairly short for a death penalty opinion.

Wig Inflatables, Inc. v. Lloyds of London (Cal. Ct. App. - July 21, 2025)

Okay, Baker & McKenzie. You successfully defeated appellee's motion to dismiss your appeal, with the Court of Appeal holding that since the email from the Clerk didn't contain a signed proof of service, the 180-day period for your appeal, rather than the usual 60-day period, applied.

Though were those extra days really worth the risk?

People v. Lara (Cal. Ct. App. - July 17, 2025)

Two points. Very quickly. Only the first is about the opinion itself. And neither, quite frankly, is critical (or perhaps even important).

The core question is whether the evidence suggested that Mr. Lara was sufficiently disabled such that the regional center for the developmentally disabled was required to evaluate him. The Court of Appeal holds that he was.

In the middle of the opinion, Justice Snauffer says: 

"Dr. Longwith also administered the Competence Assessment for Standing Trial (CAST-MR), which is designed to assess competency to stand trial in individuals with intellectual disability. This assessment consisted of 50 questions in three sections. The first section tests the defendant’s understanding of basic legal terms, the second tests their ability to assist in their own defense, and the third section involves open-ended questions about the defendant’s specific case. “The Mean cut-off Raw Scores for persons who are intellectually disabled and competent to stand trial are:” 18.3 for the first section, 10.7 for the second, and 8.0 for the third. “The mean total score for MR-Competency is 37.0.” Lara’s raw scores on the three sections, respectively, were 17, 10, and 7, for a total raw score of 34. . . . Dr. Longwith’s report . . . showed scores below the competence cutoff on all three parts of the CAST-MR." (emphasis added)

I'm genuinely confused.  Are those really the mean cutoff scores for persons who are "intellectual disabled and competent to stand trial?" So if you get a 18.3, that means you're probably competent? Because that's not what the rest of the opinion seems to suggest. Are we sure that's not the mean scores for people who are incompetent?

Plus, isn't it inapt, in either event, to talk about "mean" scores? That's not really the test, is it? Say, for example, you've got five defendants, all of whom are competent. One's a genius (150 IQ), one's smart (120), two are normal (100), and one's a bit slow (80). The mean IQ of the "competent" group is 110. But that doesn't equate to a "cutoff" for competence at 110; i.e., that people below 110 are incompetent. It's a mean, not a cutoff.

It works the other way too. Say you've got five people who are disabled and incompetent. One's very slow (70 IQ), one's severely disabled (40 IQ), and three are so disabled that they're virtually comatose (5 IQ). The "mean" of those who are disabled is 25. But that doesn't mean -- at all -- that the "cutoff" for being incompetent is 25.

I would think that the only appropriate use of means -- if one exists -- would be as a one-way rachet. So, for example, in our hypothetical, if you were OVER 110 (the "competence" mean), you were probably competent. Similarly, if you were UNDER 25 -- the incompetence mean -- you were likely incompetent. That leaves the largest group, those with IQs between 25 to 110, as indeterminate; the means don't help there.

So the only way I see the "mean" in today's opinion making sense is if the mean cutoff score of 18.3 was for the people who are not competent to stand trial (rather than "competent"). Then, if you're lower  than 18.3 (like Lara), we presume you're incompetent. Even though a score above that same mean does not mean that you're presumptively competent.

Anyway, I just wonder if there should actually be at least two more characters ("in") as part of that particular sentence.

Second, and very parenthetically, I noticed that the appointed defense counsel for Mr. Lara, in this first-degree-murder-sentenced-to-25-years-to-life dispute, was a lawyer who's admitted to the California bar but who currently writes appellate briefs from her home in Bath, New York. I'd never heard of that place, so looked it up. Rural. Very green. Village has a population of a little over 5,000. And where you can get a very nice looking 3800+ square foot home for under $400,000.

Nicely done. California salary with east coast living (and costs).

People v. Reyes (Cal. Ct. App. - July 16, 2025)

Not much to speak of lately on the California appellate front. No published Ninth Circuit opinions today, and only one published Court of Appeal opinion in the last two days thus far.

So I'll quote three paragraphs from the sole Court of Appeal opinion during this period and make a very brief comment about it. These paragraphs are the core holding of the opinion, in a case where the defendant receives 85 years to life as his sentence:

"Corporal Jason Radcliffe served as the primary investigating officer in appellant’s case. He testified at trial as the People’s expert on the Colonia Chiques gang. He also testified as a percipient witness about his investigation of the shooting and appellant’s arrest in Bakersfield. He described questioning appellant for several hours after the arrest. The People asked whether he “form[ed] an opinion as to who the shooter was on the surveillance video.” Corporal Radcliffe responded, “[o]ff the totality of the surveillance cameras and then holding out until I actually had physical contact and the conversation with Mr. Reyes, I believe 100 percent that was Mr. Reyes who conducted the shooting.” He explained how the car appellant was driving at the time of his arrest appeared identical to the one in the video, including a small dent on the left rear quarter panel. The last three digits of the license plate matched as well. Appellant was wearing a blue tank top like the one worn by the shooter. Radcliffe concluded: “[T]hen actually getting to sit down, talk and see Mr. Reyes and deal with his – his appearance and mannerisms, I was absolutely confident that Mr. Reyes was the shooter.”

Appellant argues Corporal Radcliffe usurped the function of the jury when he opined that appellant shot M.C. He compares Radcliffe’s testimony to that of a similar “dual purpose” witness in People v. Rouston (2024) 99 Cal.App.5th 997 (Rouston). The witness in Rouston, like here, served as both primary investigator and gang expert. He testified defendant fired the shot that struck the victim. He based his opinion mostly on an eyewitness’s account of the crime, as well as audio recordings of the shooting and forensic evidence about bullet trajectories. Rouston reversed, concluding the witness “provided improper opinions on [the defendant’s] guilt.” (Id. at p. 1011.) It stated: “The jury heard the other witness testimony and was equally competent ‘to weigh the evidence and determine what the facts were.’” (Ibid., quoting People v. Vang (2011) 52 Cal.4th 1038, 1048.) “Given [his] status as a gang expert, the designated investigator who testified repeatedly throughout the trial, and a detective, ‘the jury had every reason to look to [him] as a far better judge than they could be’ regarding the reliability of other witnesses’ testimony, and what inferences to draw from the prosecution’s other evidence.” (Id. at p. 1012, quoting People v. Brown (2016) 245 Cal.App.4th 140, 169.)

Rouston is distinguishable. Corporal Radcliffe did not base his opinion on the testimony of other witnesses, or claim special expertise in identifying people using video. He identified appellant as the shooting suspect only after participating in his arrest, questioning him, and comparing his “appearances and mannerisms” to those he observed in the video’s footage prior to the arrest. The trial court properly allowed this testimony." 

Really?

CFP BDA, LLC v. Superior Court (Cal. Ct. App. - July 10, 2025)

For California state court civil litigators, this might be the most important Court of Appeal decision to come out this year. Despite the fact that it will probably fly substantially under the radar.

Moreover, were I to have my druthers, I would probably ask the California Supreme Court to depublish it. If, as is unfortunately the case, the California Supreme Court hadn't already decided to publish it (at the request of the Court of Appeal itself).

The opinion is all about the motion reservation system that exists in state court. As you likely know, in many of the big counties, if you want to file a motion, you have to reserve a motion date -- typically, in an online reservation system. It lists the available dates, and you pick one and reserve it. That way, the state court judge isn't overwhelmed by too many motions on one date (or not enough on another).

That system has its problems, of course. You often can't get the date you want, and sometimes, the earliest available date is months away. That stinks, but it is what it is.

Predictably, this leads to the possibility of "hoarding" reservation dates: to reserve dates that you don't intend on using just so they're available. To solve this problem, most counties require that after you reserve a particular date, you file the underlying motion some specified period of time thereafter. In some counties, it's three days; in others, it's ten. Regardless, if you don't file the motion within the relevant time period, you lose your hearing date.

That's the way it works.

In this case, on November 14, 2024, the defendant reserved a hearing date of April 1, 2025 to file a motion for summary judgment. (Ironically, April Fool's Day.) That was no problem. The hearing date was months after the MSJ motion would be filed, so complied with the (now) 81-day notice requirement of CCP 437c. The hearing date was also 30 days before trial (though barely so, since the trial was scheduled for May 2), so complied with 437c in that regard as well.

So far, so good.

In Riverside County, you've got ten days after reserving your hearing date to file the underlying motion. So if defendant had filed its motion anytime before November 24, 2024, everything would have been fine.

But it didn't. Instead, it waited to file its MSJ motion until January 10, 2025, which was 81 days before the hearing date.

That violated the ten day rule. So, three days later, the defendant received notice that its MSJ papers were bounced because it lost its hearing date by filing the motion a month and a half late. Defendant moved ex parte to get a new date on shortened notice, since at that point, no available date complied with the code, but the trial court denied the request. So defendant never got to file its MSJ. (Actually, defendant subsequently reserved a hearing date of April 29, which was three days before the trial, and the trial court heard the motion, but denied it, presumably on procedural grounds given the 30-day rule of CCP 437c.)

Defendant appeals, and argued that it was improperly denied its right to file an MSJ under CCP 437c.

The Court of Appeal agreed, and reversed. Justice Miller's very brief (seven page) opinion holds that since the defendant's MSJ motion complied with the statutory deadlines in CCP 437c, they were entitled to have the motion heard, notwithstanding the ten-day reservation requirement in Local Rule 3310.

To be honest, I'm sympathetic with the result. Which is why I wouldn't grant review of this particular opinion and reverse on the merits. It's a big deal to not have your MSJ heard. And the filing here was in plenty of time -- 80+ days before the hearing -- for the plaintiff to prepare an opposition, and honestly, it was fairly mean (or at least super strict) for the trial court to deny the ex parte request on January 22 to have the motion heard on April 1 notwithstanding their failure to file the motion back in November. The plaintiff still had plenty of notice. Personally, I would have granted that request. (I would have probably made defendant's counsel feel very bad for violating the Local Rule, and might have even conditioned the grant of the ex parte on the payment of some sanctions, but I'd have nonetheless let the MSJ be heard prior to the commencement of the trial. It's an important motion, and there's value in getting rid of a lengthy trial, alongside its associated expense and burden, if there's indeed no genuine issue of material fact.)

So, okay, I would be happy to call this a one-off abuse of discretion given the lengthy notice here, with an express caveat that counsel is nonetheless expected to comply with the local reservation rules and in an appropriate case, might well lose a hearing date if they fail to comply.

But that's not what the Court of Appeal does here.

Instead, it calls into question the entire validity of the existing hearing date reservation system. Justice Miller says that the decision "should not be construed as a challenge to the validity of Local Rule 3310," but its reasoning clearly does conflict with those provisions. The Court of Appeal's holding is based on the theory that because the defendant's motion complied with the statutory time limits of 437c, the court was obliged to hear it, regardless of the local rules. That means that anyone -- anyone -- can similarly ignore those rules. As long as I (1) reserve a court date, (2) file my MSJ 81+ days before the hearing, and (3) that hearing date is at least 30 days before trial, under the Court of Appeal's holding, the court is required to hear it. Regardless of whether or not I complied with the ten- (or three-, or whatever) reservation date requirement.

So why should I even bother to comply? Why give the other side extra weeks (or, months) of notice by filing my MSJ early? Just file it on the last possible statutory (81+) date. The trial court's got to hear it.

Seems to me like that makes the relevant local rules meaningless, or (at a minimum) utterly ineffective, at least as applied to MSJs.

Plus, the Court of Appeal's reasoning doesn't just apply to MSJs, in my view. CCP 437c nowhere says that the trial court has to hear an MSJ that's filed with 81+ days notice and 30 days before trial. It just sets minimums. That's no different than CCP 1005, which does a virtually identical thing (albeit with different deadlines) for regular motions. If you've got a right to have an MSJ heard even if you violate local rules, why don't you have the same right for other motions as well? The underlying statutory language is pretty much the same, after all. And, yes, MSJs are super important, but so are tons of non-MSJ motions; i.e., preliminary injunctions, motions to dismiss, etc. If the Court of Appeal's theory is that the statutory dictates trump the local reservation rules, then it seems like that's equally true for CCP 1005 motions as it is for motions under 437c. Which means, again, that the local reservation rules can be essentially ignored.

Look, I'm not a huge fan of the reservation rules. They sometimes prevent parties from filing motions that they want to file, and nearly always result in motions being heard far later than necessary (and with unnecessary excess notice to the other side). I suspect that we could easily tinker with that system to make it more efficient, albeit at some cost to trial courts who would occasionally be burdened with more motions on a given day than they would otherwise feel like handling. (Even then, in that setting, trial courts would always have discretion to occasionally continue motions on their own initiative; this seems to me a preferable way of doing things, though I readily concede that's easy for me, as a non-judge, to say.)

But just because I'm not a fan of the existing system doesn't mean I want local rules like these to be entirely preempted on the theory that the statutory dictates are all that matter. Because I'm not sure that's what the Legislature actually intended, or that it's what the statute's words actually say. And I definitely don't like a system where the most ethical lawyers play by the rules and faithfully follow the reservation system, whereas others game the thing and ignore those rules given the Court of Appeal's opinion.

So, like I said, I'm fine with the result here. I'm totally okay letting the defendant here have his day in court.

I just don't like the underlying theory (or rule).

That's why I wish this one had remained unpublished.

U.S. v. Bejar-Guizar (9th Cir. - July 9, 2025)

After reading this opinion, I so desperately want to drive down there. Desperately So much so that I thought about not writing this post and instead actually doing it.

But it's a 25 minutes drive (plus another 25 back), and I would have to do it at 7:30 a.m., which is a bit early for me. So I have very reluctantly come to the conclusion that I will never, in fact, do it.

Hence today's post.

It's a border stop. Border Patrol agents see someone walking down a street at 7:30 a.m. in the morning. The opinion calls the street "a divided highway" and never mentions its name, but from the facts in the opinion, I'm virtually certain that it's Camino De La Plaza down in Imperial Beach. As you can see from the map, that road is a couple hundred yards from the border, abuts an extensive residential subdivision, and leads to a shopping mall and set of outlet stores.

Anyway, it's 7:30 in the morning, and (as is often the case down there) there's a decently heavy fog (since the ocean's nearby). Border patrol agents see a guy walking down Camino De La Plaza, but he's walking on the side of the street without a sidewalk, and he's also got some mud on his legs and boots.

The agents stop him on the theory that he's just illegally crossed the border, and think that the mud came from crossing the nearby Tijuana River and its environs. They ask him if he's illegally crossed the border and he admits that he has, and that he's a citizen of Mexico (not the United States), so they arrest him for illegal entry.

He gets convicted of illegal entry and sentenced to time served, but appeals, claiming that there was no reasonable suspicion to stop him. The Ninth Circuit affirms. All of the facts above, the panel holds, gave the officers a reasonable basis for believing that he might have illegally crossed the border.

And, honestly, you can see why the case might well come out that way.

But here's what I wanted to do.

I wanted to drive down to Camino De La Plaza at 7:30 a.m. on a foggy morning, put some mud on my pants legs and boots, and walk in the exact same place, at the exact same time, and in the exact same way as Mr. Bejar-Guizar. A 58-year old white guy walking on the same street in the same context.

Do you think that Border Patrol agents would stop me? Or would they think that I'm just a guy out for a morning walk -- probably from the next-door subdivision?

I wanted to do it half a dozen times and see how often they actually pulled over and stopped me. My suspicion -- right or wrong -- was: rarely, if ever.

There's zero about Mr. Bejar-Guizar's race in the opinion. But it seems extraordinarily unlikely to me that this had absolutely nothing to do with him being stopped.

Maybe I'm wrong. Maybe agents would similarly stop me every single time and demand proof that I was a legal U.S. citizen.

But I suspect not.

Dessins LLC v. City of Sacramento (Cal. Ct. App. - July 9, 2025)

This seems like a pretty sweet way to circumvent Proposition 218.

Proposition 218 was adopted in 1996 and makes sure that cities can't raise property taxes by calling them "fees" without a majority vote of property owners. So, for example, here in San Diego, for the past 100 years, the City has paid for trash pickup from residential addresses. The City didn't feel like paying for that any more, and wanted to start charging fees to property owners for trash pickup. Under Proposition 218, they needed to get the affirmative vote of property owners, which they (barely) did in 2022.

So let's say, for example, that a city currently spends $200 million or so on police services, fire services, road repairs, or whatever -- anything somehow related to protecting or improving access to property in the City. The City feels like raising property taxes to cover the expense, but can't do that under Proposition 218 without a vote. So it lets every property owner vote; say, one vote for every parcel owned, or one vote for every 1000 square feet of space. Whatever.

Here's the rub, though. The City itself owns some property. Lots of it. The City wants the tax to pass, so it votes all its votes in favor of the tax -- a tax that would basically pay itself. (And unlike regular property owners, the City makes sure that it votes 100% of its votes; no forgetting to vote or anything like that.) When the City's votes are included in the total, the measure passes, even though the non-City voters didn't approve the tax.

Is that legitimate?

The Court of Appeal says it is. And that's pretty much exactly what transpired here.

Sacramento wanted to impose a sewer tax to raise $20 million, so it put it to a vote. Everyone with a piece of property got one vote, so the City sent out around 130,000 ballots. Only a fraction of those ballot were actually returned; only around 40,000 of them.

When the final results were tallied, the measure passed: 22,178 ballots were voted in favor of the tax, and 20,229 were voted against.

But that's because the City itself had over 2,000 City-owned properties. And it voted every single one of its ballots in favor of the tax. Without those votes, the tax would have been defeated.

Oh well, says the Court of Appeal. Election is valid. The City will pay the taxes (albeit to itself), so it gets to vote.

That may well be what the text of Proposition 218 permits. But I doubt that anyone actually thought about this issue at the time -- or that, if they did, they'd have allowed the taxing authority to itself vote in the election.

As it stands, it's a pretty effective way for municipalities to tilt the vote in their favor. So I'd very much expect it to be used in the future.

People v. Superior Court (Broadway) (Cal. Ct. App. - July 8, 2025)

It's always disturbed me that California DAs get to effectively bounce pro-defendant judges from criminal dockets through blanket peremptory challenges. Seems wrong.

Then, today, I read this opinion, which seems equally, if not more, abusive.

San Diego has a Behavioral Health Court that's designed to be an alternative forum for defendants with severe mental illness. Rather than incarceration, defendants receive lengthy supervised treatment under formal supervised probation. Trial courts can make referrals to have defendants screened for participation in the Behavioral Health Court, and often do so via agreement by the parties (i.e., the prosecutor and the defendant, often as part of a plea deal), but occasionally do so even when the prosecutor isn't on board for the referral. Ultimately, it's the judge's call whether the defendant is successfully screened for participation in the Behavioral Health Court.

There's only one judge on the Behavioral Health Court, who's full time there. The San Diego District Attorney wasn't happy about defendants occasionally being screened and/or accepted into that program without their consent. So the office had a simple solution: They just filed a peremptory challenge against the sole Behavioral Health Court judge whenever they objected to the defendant's participation. No judge, no program. Done.

The trial court blocked the challenges, but the Court of Appeal reverses. Policy successful.

Yet another argument, in my view, against peremptory challenges to judges in criminal cases.

Rowland v. Watchtower Bible & Tract Society (9th Cir. - July 7, 2025)

I'll forthrightly state that, at the outset, I was dubious about this Ninth Circuit holding. But, in the end, the opinion by Judge Lasnik -- sitting by designation from the Western District of Washington -- probably persuades me.

There's a personal jurisdiction fight between the parties and the general counsel of the defendant submits an affidavit that contains misleading or inaccurate facts that says that the defendant has no contacts with the forum state. After some discovery, the plaintiffs figure this out and file a Rule 11 motion, which in turn results in the defendant withdrawing the affidavit. Since that withdrawal was within the 21-day safe harbor period, no sanctions under Rule 11 are permitted.

But the plaintiffs then ask for sanctions under 28 U.S.C. § 1927, which permits sanctions against “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously.” Textually, section 1927 applies. The general counsel (1) was "an attorney," (2) admitted to a "court of the United States" (the Supreme Court), and (3) he vexatiously and unreasonably multiplied the proceedings.

But come on. The affiant here was a fact witness. He wasn't acting as a lawyer. I'm confident that Section 1927 was intended to sanction lawyers, not witnesses. That's the lawyer's main argument on appeal, and the one the Ninth Circuit addresses today.

That argument is far from frivolous. I'm a lawyer. I definitely don't want to be subject to sanctions under Section 1927 whenever I happen to be a fact witness. That seems unfair, and not the purpose of the law.

Judge Lasnik nonetheless gives good arguments, in my view, for why we might well want to actually treat lawyers differently, and potentially subject them to sanctions even when they act as fact witnesses. I found this paragraph tolerably persuasive: 

"Brumley’s proposed reading of § 1927—that an attorney must be acting “as an attorney” to be sanctioned—is debatable. Counsel for Brumley expressed concern that a lawyer admitted to conduct cases in a federal court who witnesses an accident might become subject to § 1927 sanctions if the lawyer submits a signed affidavit in federal court proceedings related to that accident. We note that independent of any laws or court rules, attorneys are bound by rules of professional conduct that impose duties on attorneys as a requirement of holding a law license. Those duties include the duty of candor to the tribunal. Judges are well aware of this duty and as a result may give more weight to, for example, a sworn affidavit signed and filed by an attorney. The essence of § 1927 is that when an attorney abuses the extra trust placed in them by a court, and thereby wastes a significant amount of the court’s time, that attorney may be sanctioned and, where appropriate, ordered to personally pay the excess costs, expenses, and attorneys’ fees traceable to the relevant conduct."

Ultimately, the Ninth Circuit holds that it need not wade into this dispute because the affiant here was "acting" as an attorney since he signed the affidavit in his role as general counsel for the defendant. I'm not entirely certain that's true, but okay. Arguable. It at least skirts the issue for now as to whether Congress really intended in Section 1927 that attorneys be held to a higher standard even when they are merely fact witnesses and participate in a role entirely unrelated to their status as an attorney.

I'm also not entirely convinced that the Ninth Circuit really needed to reach out and resolve this issue. It's undisputed that the attorney didn't make the "I wasn't acting as a lawyer" argument below, so it's forfeited. Seems to me the Ninth Circuit could have just booted the case on that basis alone. Sure, it's a legal issue, so the court has discretion to reach the merits if it wants. But I might have just been happy to resolve the issue on procedural forfeiture grounds and leave the bigger -- tougher -- question for another day.

Still. I was impressed with Judge Lasnik's ability to push me to a position that I was initially quite disinclined to support. Well done.

RND Contractors v. Superior Court (Cal. Ct. App. - July 1, 2025)

There's a lot to be said favorably about this opinion. Starting with its opening paragraph, which nicely summarizes its holding:

"This case raises an issue of first impression under California law: when a defendant moves for summary judgment, but the plaintiff does not oppose the motion, may another party oppose the motion? We hold that the party may do so if that party and the defendant are adverse to one another. We further hold that there need not be crossclaims between those parties for them to be adverse to one another."

I can very much understand where Justice Codrington is coming from in this regard. We don't want to grant summary judgment unnecessarily. And there are, indeed, real reasons why one defendant might well not want an MSJ granted to a co-defendant; namely, because it might cut off potential future claims for indemnity.

So why not let 'em oppose the MSJ? If the facts are indeed clear, go ahead and grant the motion, but if they're not, deny it. Who cares which particular party felt like writing the brief?

Totally understandable.

Three things, though:

(1) Sure, that solve the MSJ problem. But what about the things that come next? Plaintiff doesn't care, as is evident by its failure to oppose the MSJ in the first place. What is the court going to do when plaintiff doesn't show up for trial, or doesn't put on any evidence about the MSJ-moving defendant? Do you let the co-defendant do plaintiff's job for them at that point too? What about when the MSJ-moving defendant sends an RFA to the plaintiff that says "Admit I'm not liable" and the plaintiff responds "Admit"? Are we going to still let the co-defendant get in the way? As a practical matter, it just seems like this holding simply kicks the problem down the road -- with additional expense and complexity -- rather than actually solving it.

(2) As the opinion notes, there's a split in the federal district courts on this exact issue. Some allow the co-defendant to oppose the MSJ, and some don't. Justice Codrington says that she doesn't have to wade into this dispute because there's a California Supreme Court opinion that once said that "any adverse party may oppose the motion," so that means that ANY adverse party -- including a co-defendant -- necessarily can file an opposition. Justice Codrington admits that this statement is dicta, since the case itself had nothing whatsoever to do with that procedural issue, but notes that dicta from higher courts should generally be followed, so that's what she's doing here.

But is that sentence from the prior opinion really "dicta" in the relevant manner? What we usually mean by "dicta" -- and why lower courts generally follow it -- is that it's a holding, albeit an unnecessary one, from the higher court. But there's a difference, in my view, anyway, between true "dicta" on the one hand and something that the higher court merely "once said" -- at least in terms of the general rule that we try to follow it. Dicta that involves a considered judgment is one thing. That we generally follow, even if the issue was technically unnecessary to the result. But random background sentences -- which is, respectfully, what's at issue here -- are another thing.

Imagine, for example, that in the course of an opinion about a particular person's conviction for contempt of court, where the core issue was simply whether that person had indeed engaged in contemptuous conduct (say, by appearing shirtless in court), the California Supreme Court's opinion contained the following sentence: "It is self-evident that any court could validly impose contempt upon a person who appeared naked in a courtroom." Then, many years later, X appears naked in a San Diego courtroom, and for some inexplicable reason, a trial court in Alpine County, with zero connection to the dispute or parties, enters an order holding X in contempt. Well, the California Supreme Court did indeed say that "any court" can validly enter a contempt citation in such settings, right? So we follow that dicta, correct?

I think not. Sometimes courts just say things. They use imprecise language. They write background sentences without thinking much about them. Those types of things, in my view, are not true "dicta" that we generally follow. They're instead entitled to a much weaker form of deference. Yes, we might well go ahead and follow those literal words if it makes sense. But if it doesn't, we shouldn't. When the words are something that the higher court didn't think about at all -- which is pretty clearly the case with the sentence Justice Codrington relies upon here -- I think it's a mistake not to wade into the debate on the merits and figure out which side in the split of non-controlling authorities has the better of the argument. Maybe, in the end, the outcome here is the right one. But we shouldn't just blindly follow a throwaway sentence of a higher court just because, literally read, it might potentially provide an answer to the issue here.

(3) Finally, isn't there an easier way to deal with the underlying problem? The reason the co-defendant is an "adverse" party is because, Justice Codrington says, they might not be able to sue for indemnity if the MSJ is granted, since (after all) a court has already found that the moving party isn't liable. Why don't we just solve that issue? Can't we just hold that where, as here, a defendant moves for MSJ without any opposition, the issue was not resolved at a contested proceeding and hence isn't entitled to any issue preclusive effect? Which, in turn, would mean that the co-defendant isn't really an "adverse" party in any event, and so isn't obligated (and can't) oppose the MSJ? Wouldn't that be a more direct way to solve the underlying problem rather than having to deal with all the post-MSJ procedural complexities identified above in (1)?

Again, I appreciate Justice Codrington's opinion, and she might well have the better of the argument here.

But maybe not. Maybe there's an easier, and perhaps better, way.

Husayan v. Mitchell (9th Cir. - June 30, 2025)

It's definitely torture. But you can't sue for it.

I'm always shocked whenever I read historical pieces about how certain countries simply kill, rather than take prisoner, captured enemy combatants. The Japanese during World War II. The German treatment of Russian soldiers. Russia, and perhaps Ukraine, in the modern era. It always strikes me as barbaric. Or at least "uncivilized".

But when I read in today's opinion how the United States treated Zayn Husayn, I wonder if he wouldn't have preferred just dying from his wounds, rather than being tortured and then held in CIA black sites for two decades (and counting).

Not that he's a good guy. He's not. (Though how "not good" is really unclear.) Still. If it were me, I'd likely rather have just been killed and had it over with.

Anyway, he survived both the injuries and our torture, is probably fully crazy at this point, and likely will never be released.

And definitely can't sue.

U.S. v. Keller (9th Cir. - June 27, 2025)

If you're in the 99th percentile of doctors who prescribe opioids, as a lawyer, I strongly recommend that you do not write in your diary that one of your patients is a "FUCKING PSYCHO DRUGGIE" and that they "see me as a legal drug dealer."

Because that journal might subsequently help convince a federal jury to view you the same way, resulting in two and a half years in prison.

A.B. v. County of San Diego (Cal. Ct. App. - June 26, 2025)

Three years before George Floyd, this happened, with eerily similar facts.

I would guess that today's result was influenced, if only in some small part, by Floyd's death.

Cervantes-Torres v. United States (9th Cir. - June 24, 2025)

See which Ninth Circuit judge most closely approximates your views in this one.

Hector Cervantes-Torres was brought to the United States by his parents when he was 13 and was a permanent resident of the United States. He was subsequently deported, but he came back, and at some point allegedly received from the government a sticker on his green card that extended it.

The government later arrested him and charged him with possessing a firearm when he was illegally in the United States. At trial, the Mr. Cervante-Torres admitted all the elements of this offense except for the fact that he was illegally in the United States; his entire defense was that he thought he was legal. However, the judge instructed the jury that his subjective belief was irrelevant, and the jury convicted him.

After that conviction was final, the Supreme Court held that, nope, an element of the offense was indeed that the defendant subjectively knew that he was in the country illegally. So Mr. Cervante-Torres files a writ of coram nobis to vacate his conviction.

The majority opinion is written by Judge Nelson and joined by Judge Miller, and holds that Mr. Cerevane-Torres does not get relief because he's obviously guilty notwithstanding his sole defense at trial, so there was no injustice justifying coram nobis relief since there was no reasonable change the result would have been different.

Judge Nelson then writes a separate concurrence, which no one else on the panel joins, arguing that the Supreme Court should overrule its current coram nobis doctrine, and instead adopt the approach of the dissent in the 1954 Supreme Court case (United States v. Morgan) that held otherwise.

Judge Desai dissents, arguing that when an instruction leaves out the element of the offense, that error justifies coram nobis relief under circuit precedent, and that the result at trial here might well have been different if the trial judge hadn't ruled that the defendant's sole defense wasn't actually a defense.

Which approach more closely approximates your own views? Judge Miller's view that the evidence here crystal clearly established the defendant's guilt? Judge Nelson's view that the Supreme Court should go back and adopt the views expressed in a 1954 dissent? Or Judge Desai's view that the result here might have been different and justifies coram nobis relief?

People v. Barrett (Cal. Supreme Ct. - June 23, 2025)

It's hard to find sympathy for a prisoner already serving a life sentence who's sentenced to death for killing his cellmate. Not surprisingly, the California Supreme Court unanimously affirms.

By contrast, I feel substantial sympathy towards whomever did the bulk of the work writing Justice Groban's 214-page opinion. I cannot fathom how one stays motivated over a period of months or years writing a (literal) book-length treatment of this matter.

The murder happened in 1996 -- nearly thirty years ago. The defendant was (and is) already serving a life sentence. And the outcome of the present appeal is practically meaningless; there will be lengthy rounds of state and federal habeas proceedings that will inevitably follow, and there's no way the death sentence will actually be carried out in any event.

Under such circumstances, who really would choose to spend a meaningful portion of their life -- over the 21-year period during which this automatic appeal was pending -- writing a 214-page opinion? 

Not me, that's for sure.

Regardless, here you have it.

Lawyers for Fair Reciprocal Admission v. United States (9th Cir. - June 20, 2025)

The plaintiff's attorney here has filed numerous meritless lawsuits trying to get admitted to the federal courts in California even though he's not a member of the California bar. His latest lawsuit suffers the same fate.

Judge Bennett kindly avoids mentioning in his opinion that the guy, Joseph R. Giannini, has repeatedly failed the California bar.

Maybe just study harder this time and take it yet again?

Norman v. Strateman (Cal. Ct. App. - June 20, 2025)

Justice Petrou seems absolutely correct here. Yes, there was an enforceable oral settlement agreement in front of a judicial officer, which normally can be summarily enforced. But the claims at issue included a corporate derivative claim. Those need to be judicially approved, and this one wasn't. Hence the remand.

That said, I have no doubt whatsoever that the settlement agreement will be approved on remand. So it's unclear what the appellant really obtains from the successful appeal (or why it's worth it).

I also liked how expeditiously the Court of Appeal resolved this one. It wasn't a tough one (in my view). And the process went incredibly quickly once the matter was fully briefed.

Well done.

U.S. v. Sanchez (9th Cir. - June 18, 2025)

There are some immigration cases where the petitioner is fairly sympathetic. Other cases tug less on one's heartstrings.

Here, Eliel Nunez Sanchez was brought to the United States by his parents without inspection when he was a child. So he's an undocumented alien, which typically puts him somewhat on the "sympathetic" side of the equation.

Then, when he is 20 years old, he's "convicted of possession of a controlled substance (methamphetamine) while armed and was sentenced to nine months in jail." Somewhat less sympathy there. 

Then, four years later, he's "arrested for possession of a controlled substance (methamphetamine) for sale" and deported to Mexico. Again, as a repeat offender, albeit for a drug crime, somewhat less sympathy.

Then, "between 2010 and 2019, Nunez illegally reentered the United States eight times and was deported seven times." Well, shucks. I totally understand why he'd want to remain in the United States. But there's not a ton of tugging on the heartstrings here.

Finally, "in February 2020, a grand jury in the Central District of California charged Nunez with illegally reentering the United States after having previously been subject to an order of exclusion, deportation, or removal" and sentenced to two years in prison. He appeals the conviction, but loses both below and in the Ninth Circuit.

Maybe he'll stay in Mexico at this point. Perhaps not. Time will tell.

Lemus-Escobar v. Bondi (Cal. Ct. App. - June 16, 2025)

Rene Lemus-Escobar applied for asylum in 1992 and has been in the midst of immigration proceedings for the past 33 years.

That's a long time.

Brown v. Attorney General (9th Cir. - June 12, 2025)

The middle of today's Ninth Circuit opinion contains the following passage:

"What happened goes beyond prosaic misconduct. The jurors did not merely crowd together or shuffle by interested parties. See Godoy, 861 F.3d at 967. They invited a witness and her friend onto the elevator during trial, promised not to tell anyone about it, and allowed the women to openly converse. And not just any witness—Gallon was the sole codefendant whose testimony the prosecution considered important enough to cut a deal for. Gallon was silent in the elevator, but the friend encouraged the jurors to believe Gallon and rely on the video evidence. Most jurors failed to report the incident as required by the court. Not ideal."

Nicely put. And I love the last sentence.

The Ninth Circuit nonetheless affirms the dismissal of defendant's habeas petition as harmless error.

P.S. - The author of the opinion is Judge Brown, sitting by designation from the Southern District of Texas. As the caption reveals, the defendant's last name is "Brown" as well. Which made me wonder whether there's any statistical difference in results on appeal when, as here, the authoring's judge's last name is the same as the defendant's (or when someone with that same last name is on the panel). 

Maybe someone will run the data and write a law review article about that same day. (Won't be me, though.)

De Souza Silva v. Bondi (9th Cir. - June 11, 2025)

You read about a fair number of religions when you peruse the various appellate opinions. Most of them are familiar, but on occasion, you learn something new.

Today, in this Ninth Circuit asylum opinion, I learned about a religion I had never heard about before: Candomblé.

The opinion contains some various facts about the religion, and there's an expansive Wikipedia page about it. Apparently a non-trivial number of people in Brazil are members.

Interesting stuff.

State of Alaska v. Federal Subsistence Board (9th Cir. - June 2, 2025)

During COVID-19, it was more difficult for the Kake Tribe, which is located in rural Alaska, to get sufficient food to eat. So, pursuant to federal law, it applied to the Federal Subsistence Board -- an entity that I did not heretofore knew existed -- to hunt a couple of moose and some deer to eat.

After a public hearing in June of 2020, the Board said that was fine; the Tribe sent out some hunters, who found and killed two antlered bull moose and five male Sitka black-tailed deer; and the Tribe distributed the resulting meat to 135 families.

There you have it. Seemingly straightforward.

Except, of course, for the resulting lawsuit.

Which lasts way, way longer.

Alaska then sues the federal Board, saying that the hunt shouldn't have been allowed. The Tribe intervenes. Alaska loses in the district court. Alaska appeals to the Ninth Circuit. The Ninth Circuit partially reverses and remands. The district court on remand then finds again for the Board. Alaska files another appeal to the Ninth Circuit. And, on appeal, the Ninth Circuit now finds against Alaska (again), though also finds that the district court lacked jurisdiction in part.

That's a whole lot of litigation. Involving two taxpayer-funded entities: Alaska versus the United States government.

Over two moose and five deer. Who are already dead.

I can probably think of better uses of taxpayer funds. Especially since the hunt arose from a pandemic that -- knock on wood -- isn't going to happen again anytime soon.

People v. Nixon (Cal. Ct. App. - June 5, 2025)

It just seems to me a horribly bad idea -- both practically and legally -- to post on your Facebook page "a picture of three Elk Grove Police Department officers with crosshairs superimposed over the faces of two of the officers . . . . accompanied by the words: 'Fuck both of these bitch ass cops and the Elk Grove Police Department. I hope both of you scum bags are killed in the line of duty and your family members are BRUTALLY murdered."

I would think that criminally threatening the police might, just might, get their attention.

And it's even worse when you make these threats while you're on active community supervision after being released from jail for carrying a concealed weapon in a vehicle, carrying a loaded firearm, perjury, and unlawfully possessing ammunition.

That'll get you a couple of extra years in prison.

Plus taking away all your social media accounts.