Morales v. City & County of San Francisco (Cal. Ct. App. - Sept. 4, 2025)

I agree with Justice Rodriguez that this appeal is frivolous. The sanctions imposed below were entirely justified given the multiple failures to respond to some of the form interrogatories, and appealing their imposition was entirely unreasonable. (Unlike Justice Rodriguez, I don't really care about not briefing one of the three issues listed in the notice of appeal -- that's fairly routine -- and I think it arguable that the appeal of the separate $1,500 sanction is permissible notwithstanding the $5,000 appellate minimum given the other $6,500 sanction. But, yes, with respect to the $6,500 sanction, the appeal is clearly meritless.)

So I'm on board for additional sanctions on appeal.

But two things were interesting.

First, it's unusual for the Court of Appeal to admit that the oral argument flipped its intended outcome. The tentative appellate opinion rejected the appeal on the merits (obviously) but denied to impose additional sanctions. But then the panel heard oral argument and went the other way on sanctions. The oral argument of appellants clearly did not help their cause.

Second, I thought it unfortunate that Justice Rodriguez didn't explain in the opinion how he selected the amount of sanctions imposed. The opinion notes that the San Francisco City Attorney's office asked for nearly $200,000 in sanctions, claiming that this was how much the City spent defending the appeal. To be honest, I was stunned by this request. It should not cost $200,000 to file (1) a single opposition brief, (2) opposing a silly, frivolous (read: easy) appeal, (3) over a dispute involving only $6,500. If the City did, in fact, spend over $190,000 in opposition to the appeal, then I seriously question the oversight (and wisdom) of the Powers That Be in the City Attorney's Office. It shouldn't require (or justify) nearly that much.

My initial reaction, to be honest, was to potentially deny sanctions entirely on the ground that the amount of sanctions requested was itself manifestly excessive.

In the end, the Court of Appeal imposes $30,000 in sanctions. That sounds pretty much exactly right to me.

But it does so without any explanation for this figure. Or any discussion at all between the huge variance between the amount of sanctions requested ($190,000+) and the amount of sanctions imposed ($30,000).

I'd have liked to hear more about this.

Still would.

People v. Sarabia (Cal. Ct. App. - Sept. 4, 2025)

This is an opinion by Justice Wiley, so it's replete with one- and two-sentence paragraphs. One series of paragraphs/sentences reads:

"Sarabia fired more shots through the door at Ramon. 

Romero ran to a closet. She hid behind the curtain that served as the closet door. 

Sarabia called to her, “Where are you, bitch?” 

Sarabia shot through the curtain into the closet, hitting Romero in the stomach. Despite her wound, Romero kept quiet. She heard Sarabia rustling among things in the room. 

When Sarabia left, Romero called 911. 

Officers found German dead in a pool of blood. 

The officers heard the shower running. They tried to open the door, but it was blocked. Forcing their way in, they found Ramon in a deathlike pose. Paramedics later saved Ramon."

I understand all of that, but I'm not sure what it means to be in a "deathlike pose" (or why that's significant or worthy of inclusion).

I've looked it up, and apparently that term has never heretofore be used in any published (or unpublished) state or federal opinion. Mr. Google says there are some clinical references to the term, but I'm still not sure what the phrase is intended to convey, other than that Ms. Romero was shot and presumably lying in a still position.

Though, as an aside, "Deathllike Pose" might be a good name for a band.

U.S. v. Taylor (9th Cir. - Sept. 3, 2025)

You don't see above-guidelines sentences very often. But from the facts of this case, you can potentially see why the district court (and Ninth Circuit) thought that Mr. Taylor was an understandable exception to the usual rule:

"In October 1995, Taylor robbed four banks across Los Angeles (the “underlying criminal offense”). Taylor pleaded guilty to five counts . . . In April 1996, the district court sentenced Taylor to 147 months of imprisonment for the underlying criminal offense. The court also imposed a five-year term of supervised release for the underlying criminal offense, subject to conditions.

In April 2007, Taylor’s term of supervised release began upon his release from prison. In August 2008, Taylor used a handgun to rob a bank. Taylor was prosecuted in state court, and received 17 years of imprisonment in state custody. In December 2018, while still in state custody, Taylor stabbed another inmate with a knife. Taylor received four years of imprisonment in state custody for charges arising out of the stabbing, to run consecutively with Taylor’s existing 17-year sentence. From 2016 to 2023, Taylor was cited for 17 rules violations while in state custody, some of which involved violence.

In November 2023, Taylor completed his state term of imprisonment and was transferred to federal custody. Previously, the United States Probation Office (Probation) had filed a petition for revocation of supervised release, alleging that Taylor’s August 2008 conduct violated the conditions of his supervised release. In December 2023, Probation amended its petition for revocation of supervised release. Given Taylor’s criminal history, Probation calculated a revocation imprisonment range of 18–24 months. Taylor admitted all allegations in the amended petition. The district court accepted Taylor’s admissions. 

In February 2024, upon revoking Taylor’s supervised release, the district court sentenced Taylor to an above-Guidelines sentence of 60 months of imprisonment, followed by 24 months of supervised release."

Mr. Taylor's been in prison for almost three decades, with the exception of a single year outside -- and he made sure to rob yet another bank (and get caught) promptly upon release. That, plus the stabbing while in prison, plus all the rules violations, does not exactly make a judge think that the guy's rehabilitated at this point.

(And, yes, I know that "rehabilitated" is allegedly a "made up word," at least according to this guy. Still. His allocution was, I suspect, quite a bit more persuasive than Mr. Taylor's.)

People v. Parker (Cal. Ct. App. - Sept. 2, 2025)

Sometimes opinions are fascinating simply because they give insight into other people's personalities; insights that we wouldn't ordinarily see (and/or people with whom we wouldn't otherwise ordinarily interact).

Here's one of those opinions.

I just can't fathom reacting the way he did. I mean, I get it. I've read lots of criminal opinions. I get that people have impulse control issues.

Still.

"Defendant and the victim, Megan Carling-Smith (Megan) met and began dating in 2014 or 2015. They moved into an apartment together in July 2015. In 2018, they made plans to get married. That same year, Megan began looking to buy a home where they could live together. In October 2018, Megan’s offer on a home was accepted, with the closing date set for late November. 

In the early afternoon of November 20, 2018, Megan left the apartment to sign escrow closing papers. Megan asked defendant to accompany her, but he chose to stay home. When Megan returned to the apartment, around 4:00 p.m., defendant was intoxicated. Defendant testified that he had started drinking a little after noon. He drank two pints of liquor, smoked four or five marijuana joints, and consumed prescription pills (Xanax and Percocet) that he had gotten from a friend.

That evening, defendant and Megan argued about defendant’s infidelity. Defendant testified that during the argument, Megan “kept pushing the issue” of his infidelity and “wouldn’t let it go.” They “just kept arguing and arguing about the same thing over and over.” Eventually, he “kind of just snapped.” In a “rage,” he violently beat Megan, repeatedly hitting her in the face and body and strangling her, until she was unconscious. 

Defendant admitted that Megan did not have any weapons, did not threaten him, and did not use any force against him. He did not remember any particular words that Megan said to trigger him: “We were just arguing.” When asked why he reacted as he did, defendant responded, “I don’t know. I wasn’t thinking clearly at all.” “I think it was just the pushing of the issue.” He recalled that Megan did not say anything to him during the attack and that she did not fight back. 

After Megan stopped moving, defendant moved her to the bedroom. She was not responsive, and defendant was scared. At some point, he tried to perform CPR, but “[i]t didn’t really work well.” At 3:48 a.m., defendant searched on the Internet for “how to tell if somebody is actually dead.” Around 7:10 a.m., he searched for “how to check for a pulse.” Around 8:05 a.m., defendant called 911. Defendant lied to the dispatcher and said that Megan had been injured in a car accident the night before and that he had found her unresponsive upon waking that morning. 

When paramedic firefighters arrived, they found Megan’s body on the floor of the apartment. She had bruising, swelling, and trauma to her face. She had no pulse, her skin was cold, and rigor mortis had set in. She was pronounced dead at 8:11 a.m."

As the jury found, that's second degree murder. Affirmed.

McNeil v. Gittere (9th Cir. - Sept. 2, 2025)

When I first started reading this Ninth Circuit opinion, I thought I was going to insult the Nevada Attorney General's Office for blowing the 30-day deadline to file their notice of appeal. After all, it's a very easy deadline to follow, and filing the notice itself is incredibly straightforward.

But once I read on, I realized that such a critique would be misplaced. I understand now exactly why they thought they had more time: because the Federal Rules of Civil Procedure unambiguously gave them 150 days. Yet the Ninth Circuit holds -- for the first time ever, in any court, I believe -- that these appeal rules impermissibly conflict with the underlying statute and are thus invalid.

Good to know.

Today's Ninth Circuit's holding is applicable only to appealable interlocutory orders; here, the district court's denial of qualified immunity. Nonetheless, it's important. There are lots of those, and I suspect that lots of governmental bodies have filed their appeals beyond the usual 30-day period.

No more. After today's opinion, it's crystal clear that they've only got 30 days.

Which shouldn't be a problem. Again: it's easy to file the notice. You've just got to know the rule.

I'm fairly confident that everyone intended to give would-be appellants in these circumstances 150 days. So, in a perfect world, Congress would just amend the underlying statute to correspond to the dictates of the Federal Rules of Civil (and Appellate) Procedure. (Or the Supreme Court would grant certiorari and reverse.)

We'll see if any of that happens.

For now, though, remember the rule: 30 days. File quickly.

Childs v. San Diego Family Housing (9th Cir. - Aug. 28, 2025)

The tenants are suing for mold. The lawsuit is procedurally complicated because the property is on a military base here in San Diego, and so at issue are federal removal statutes, enclave issues, derivative sovereign immunity, etc. As a result, the case has bounced around the federal system for the past half decade, only to be remanded today back to state court to start over.

You might be thinking: "Well, if it's a moldy house, I bet it's a pretty terrible piece of property." Maybe. But the house is in an extremely nice location. Check it out.

Emmons v. Jesso (Cal. Ct. App. - Aug. 27, 2025)

You don't see many landlord/tenant disputes in the Court of Appeal, much less published opinions about them. Or at least very few about back rent. Toxic mold, vicarious liability for criminal injuries, and big-ticket issues like that occasionally percolate up, but not $11,000 back rent disputes. At least not often.

But today, yep, a tiny dispute (in the scheme of things) about fourteen months of back rent. Which -- even though it's California -- the Court of Appeal holds that, yes, the tenant owes it. Judgment affirmed.

There's a lot of other stuff in the opinion about relocation expenses, statutes, rent stabilization ordinances, etc., all of which is important. But that's the bottom line.

Pay your rent.

People v. Fletcher (Cal. Supreme Ct. - Aug. 25, 2025)

As I've noted previously, the California Supreme Court is far less fractious than the United States Supreme Court. The opinions of the former are more likely to be unanimous, and when there's a dissenting opinion, it's far less likely to be affirmatively mean in California than in its federal counterpart.

Plus, at least in the modern era, there are far fewer state court opinions that are decided by a single vote (4-3) than corresponding federal court opinions that are 5-4s.

All that's true.

But as they say, for every rule, there are exceptions. Today's California Supreme Court opinion is definitely an exception.

It's not unanimous. It's decided on a 4-3 vote. And the dissent is quite strongly worded.

You can read the entire 79 pages if you would like. But I think the following snippet from Chief Justice Guerrero's opinion gives one a sufficient feel for the rest:

"The majority today holds that a prior conviction for a gang-related felony cannot support an increased sentence under the “Three Strikes” law or the prior serious felony enhancement statute unless the prior conviction satisfies current law defining a gang-related offense. This novel standard is virtually impossible to meet, and it will nullify decades of prior convictions that would otherwise support enhanced sentences for repeat felony offenders. It is also unsupported by the plain language of the relevant statutes and the intent of the voters and the Legislature that enacted them. I cannot agree. . . .

In enacting the Three Strikes law, the electorate ensured precisely this result, that is, a prior conviction for an offense or statutory violation identified as a serious felony would remain a prior serious felony conviction. The electorate locked in the list of serious felonies as of a certain date, thereby ensuring that future legislative enactments could not remove an identified felony from the list. . . . 

The majority eschews this straightforward analysis and embraces an obscure syntactical argument that no party has raised. The majority observes that the statute identifying a gang-related felony as a serious felony offense is phrased in the present conditional tense. [Cite] The majority tepidly explains that this phrasing “suggests an inquiry under current law,” and it contrasts this phrasing with hypothetical phrasing in the past tense. [Cite]

The majority’s reasoning does not withstand scrutiny. To the extent it is meaningful, the present tense phrasing is compelled by its statutory context, which has nothing to do with prior convictions or recidivist sentencing schemes like the Three Strikes law."

I wouldn't be surprised in the slightest to read something with that tenor in the United States Supreme Court. It's far more unusual to hear it from the California Supremes.

But there you have it.

Washington v. County of San Diego (Cal. Ct. App. - Aug. 21, 2025)

When the previous head of the Public Defender's Office down here in San Diego left the job, there was an opening, and in an unusual move, a sitting judge -- Judge Washington -- applied for the position. 

But there is a statute (Government Code Section 27701) -- originally enacted in 1921, and unchanged since 1947 -- that provides: “A person is not eligible to the office of public defender unless he has been a practicing attorney in all of the courts of the State for at least the year preceding the date of his election or appointment.”

Judge Washington was a long-time public defender before he was appointed to the bench, but since he's now a judge, he wasn't a practicing public defender during "the year preceding the date of his election or appointment.” So he couldn't be appointed.

So he sued, claiming that's not what the statute means.

The trial court ruled against him, and today, the Court of Appeal affirms. The statute's unambiguous. It means what it says.

I've now read the statute, as have you. Yep. That's what it says.

It may be a silly law. But there are lots of silly laws, and ones passed in 1921 are definitely no exception.

Sorry about that. But, yeah, the statute applies.

On the upside, at least Judge Washington can now go back to hearing criminal rather than civil cases. (He was reassigned to civil ones since he had a conflict hearing cases brought by the public defender's office while he was seeking to be its head.)

Gonzalez v. Herrera (9th Cir. - Aug. 19, 2025)

The Ninth Circuit decides today that prisoners who earn time credits under the First Step Act can have those credits applies to reduce the time they spend on supervised release rather than being useless.

The opinion creates a circuit split. It also is a big deal, since FSA credits and supervised release are ubiquitous in the federal system. As the opinion itself recognizes, "splits in authority are seldom so stark and consequential." So I wouldn't be at all surprised if and when the Supreme Court takes up a case to resolve this issue once and for all. (Assuming that Congress doesn't respond by amending the statute to make it clear.)

That said, for now, isn't Judge Mendoza's opinion pretty darn persuasive?

People v. Alvarez (Cal. Supreme Ct. - Aug. 18, 2025)

It's an death penalty case, and involves the horrible child abuse murders of an infant and a four-year old. Important on any metric. Accordingly, the various opinions are a combined 159 pages. Hefty reading.

Given the stakes at hand, it's somewhat ironic that the only (partial) dissent is from Chief Justice Guerrero, who writes to express her disagreement with the majority's decision on the $200 parole revocation fine.

An issue in a number of other cases, I'm sure, so definitely worthy of informed resolution.

But the fate of the $200 fine is definitely not the big-ticket item in this case.

In re Subpoena Internet Subscribers (9th Cir. - Aug. 15, 2025)

Here's a good example of a quasi-Streisand effect as applied to precedent.

The studio that owns the rights to the movie The Fall are, like many studios, tired of people pirating the thing. So they decide to catch some people and sue them. They hop on BitTorrent and quickly find some people sharing the thing, and log their IP addresses.

Normally, in situations like this, you just file a John Doe complaint, subpoena the internet provider, get the actual names, and then replace the John Does with the actual defendant and go to town. But the DCMA also contains a more streamlined subpoena process that allows copyright holders to skip the whole "file a lawsuit" part and obtain a quick subpoena by filling out a form, and the statute says the court clerk "shall" issue the subpoena if it's done properly. No need to even involve (or have to convince) a judge or anything like.

The studio discovers that 29 of the (alleged) pirates have IP addresses with Cox, so fills out the forms and asks the federal court for a streamlined DCMA subpoena to Cox that discovers the identities of the alleged pirates. Cox forwards that subpoena (as the DCMA requires) to those 29 people, and -- predictably -- none of them do anything about it.

Except for one.

One guy -- John Doe -- writes a letter back to the Court saying, essentially, "Oops, I'm not a pirate, it's just I didn't put a password on my WiFi. Problem solved now. Never downloaded that movie. Must have been someone else using my WiFi. Please don't tell them my name." The district court interprets that letter as a request to quash the subpoena to John Doe, and asks the studio to respond.

Now, at this point, if I'm the lawyer for the studio, here's what I'd do: Nothing. You've already got the names of 28 alleged pirates -- Cox gave you those already when those 28 never responded. Go to town and sue all 28 of them (or whatever subset you feel like) to make your point. Leave Mr. Active -- John Doe -- out of it.

Sure, we all know he's probably a pirate too, but who cares? Having 28 defendants is as good for your purposes as 29. Probably even better, since the 29th ill probably be a little more pain in the ass than Mr. 29, who got off his duff and bothered to write a letter in response to the subpoena.

But, no, the studio here spends the money to write a whole big motion saying that the subpoena to Cox is valid, the DCMA allows it, blah blah blah. Spending far more money, I'm certain, than a rental of The Fall would possibly cost, as well as more than you're ever going to get from Mr. 29 anyway, since most of the guys I know who pirate movies don't exactly have $150,000 in statutory copyright damages lying around in their couch cushions.

Plus, even that assumes you first win the subpoena motion, and then prevail in your copyright suit against his "no password" defense. And, here, the studio doesn't even get to that latter point, and loses on the first. The district court holds that an internet provider -- Cox -- isn't subject to the expedited DCMA subpeona process because they're just providing the tubes, not actually holding copies of the movie itself.

Now, at this point, if I'm the studio, here's what I am going to yet again do: Nothing. Leave it be. 

It's a Hawaii district court opinion. An unpublished one, at that. Who cares? Let it go. Dominate the defenseless other 28 defendants, make your point, and move on.

But nope. The studio appeals. Spending more time and money trying to get approval for the subpoena for Mr. 29.

Leading to today, at which the Ninth Circuit holds -- in a published opinion -- that, yep, you can't use the streamlined DCMA subpoena process to get subpoena ISPs like Cox.

So, before, you could issue a subpoena, get one entered, get virtually every name you wanted, but you might not get the name of that incredibly rare person who actually bothered to file an objection.

But now, after your appeal, in binding precedent, you -- and the other studio like you -- are categorically precluded as a matter of law from doing so to the 67 million residents of the Ninth Circuit. As well as all of the ISPs in that area, and I assure you, there are quite a few.

Not a sound strategic decision.

But yay for Mr. Doe. Well done. Pirates everywhere owe you a debt of gratitude.

And to personally commemorate this august opinion, and in honor of the Streisand effect, this weekend, I'm definitely not going to watch Fall -- which actually seems like it could potentially be a cool movie -- on a pirate website.

And neither should you.

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.