Jackson v. Superior Court (Cal. Ct. App. - Feb. 28, 2025)

This one is a bit touchy, but I'll comment on it anyway. Perhaps at my own risk.

In the end, I agree with Justice Huffman that an evidentiary hearing under the Racial Justice Act was required. Maybe the police officers didn't, in fact, pull over Elijah Johnson's vehicle for illegally tinted windows (and subsequently discover an illegal weapon) because he was African-American. But maybe the converse is true, and perhaps implicit racial bias did play a role in pulling him over. This requires a factual hearing where the court sorts through the evidence, and here, given the underlying evidence, I agree that there's at least a prima facie showing. So let's do the hearing and decide the facts.

I also completely agree with Justice Huffman when he says, on page 17 of the opinion: "Although we agree with the People that the statistical evidence alone would not be sufficient to show Watson’s and/or his fellow officers’ stop and search of Jackson was the product of racial bias (see Bonds, at p. 831), the data provided a lens through which the trial court should have viewed the other evidence provided by Jackson, especially at the prima facie stage."

There's a fair piece of statistical evidence about the disproportionate use of pretextual traffic stops against minorities. That does indeed provide a helpful "lens" through which to view any particular traffic stop. As the opinion notes, here's the relevant evidence from my town, San Diego:

"[T]he data provided by Jackson clearly shows a stark disparity in the treatment of Black people pulled over by the SDPD compared to white people. For example, once stopped by the police, Black people were searched 2.6 times as often as their white counterparts. Regarding traffic stops of Black people, 37 percent of stops by the SDPD were for equipment stops and 12 percent were for license/registration stops compared to 20 percent and 7.7 percent of the stops respectively for white people. And 72 percent of the SDPD stops of white drivers was for moving violations, but only 51 percent of stops of Black drivers was for that same reason. Once stopped, Black people were arrested 1.7 times as often as white people, and they were also 1.5 times as likely to be released with a warning or no action taken. Additionally, statistics were offered showing that although Black people make up only 6.2 percent of the population of San Diego, the comprised 23 percent of all people stopped between 2018 and 2020."

That's a fairly stark disparity, and provides a significant "lens" through which to view things.

Though, to be clear, there are substantial limitations on those statistics. They're definitely not the be-all-end-all, either regarding a particular traffic or even traffic stops in general. For example, the fact that "once stopped by the police, Black people were searched 2.6 times as often as their white counterparts" might perhaps be due to racial bias, or might perhaps be neutrally explained by there being a greater basis for a search in one particular data set, or perhaps a combination of these two factors (in uncertain portion). Similarly, the data about differential rates of equipment and registration stops could perhaps be due to racial bias, but might alternately be explained by economic factors. Poorer people might more often have expired registration or noncompliant equipment on their vehicles, and in turn, if African-Americans in San Diego tended to be poorer compared to their white counterparts, that might explain  (in whole or part) why Black drivers were more likely to be pulled over for registration violations than white drivers.

The point is this: correlation is not causation, and statistics can only show so much. They might well give us reason to pause, and reason to inquire deeply whether implicit or explicit bias might well be in play. But there are confounding, complicated factors in play as well. It's difficult to separate the two, and one must be careful not to jump to hasty conclusions. In either direction.

I was also struck by another comment that Justice Huffman made. He says: "While heading into the smoke shop, Jackson was accompanied by his younger brother, who also is Black and was wearing red pants. Watson noted that the color red was often worn by gang members in the area. . . . The police noticed Jackson’s brother’s red pants and speculated that they might be gang members, specifically they might be members of the Skyline Piru, a blood set gang. This speculation is consistent with the police’s previous interactions with Jackson’s brother where they repeatedly questioned his gang involvement. Further, this speculation appears to be linked to the fact that Jackson’s brother is Black."

Well, yes and no, I think. Did the fact that Jackson's brother was wearing red pants, is Black, and was present in Skyline (a high-crime area in San Diego with a hefty gang presence) likely lead the police to suspect that Jackson and his brother might be gang members? Yes, I'm confident that it did. You generally don't wear red in that part of town unless you're (1) an idiot, or (2) willing to back it up, typically because you're associated with that particular gang. And did their race add to the suspicion that they might be members of Skyline Piru, a blood set gang? Again, honestly, yes, 100%. Because the stark reality is that, as a factual matter, the Skyline Pirus are an African-American gang, and it's just true that the overwhelming members of that gang are Black. If you saw me in red pants in Skyline going into a smoke shop, the fact that I'm white would, by itself, not prove that I'm definitely not a member of the Skyline Piru gang. But that fact, among other things, would definitely be relevant to whether you thought I was a member of that gang. Ditto for my age, the clothes I wear, etc. There are some characteristics, and those may sometimes include race, that are not the result of racial prejudice or bias, but rather simply reflective of the world. Few white supremacists are Black. Few members of the Skyline Pirus are white. That's just the world in which we live. Not because it confounds race with correlated attributes (e.g., economic wealth) or because it relies on racist stereotypes (e.g., intelligence or criminality). But simply because communities, in fact, sometimes order themselves that way. When you're pondering whether someone who's wearing red pants in Skyline is a gang member or not, it's not racist or a product of implicit or explicit racial bias, IMO, to include in your calculus that person's race. The fact that they're Black doesn't mean (at all) they're in a gang, but the fact that they're 58 and white might well be something that one could rationally consider in evaluating the likelihood that the person you're viewing is, in fact, a member of the Skyline Pirus. Quite frankly: He's probably not. Because the Skyline Pirus don't generally tend to accept that sort of person into their group. (Ditto for the white supremacist gangs and African-Americans.)

So you gotta be careful, I think, in this area. Statistics are helpful, but not dispositive. And the fact that the "speculation [that the person wearing red pants] appears to be linked to the fact that [he] is Black" is not necessarily the result of racial bias, notwithstanding the fact that it's self-referentially linked to the person's race. Again: You gotta be careful.

That's how I'll end the short month of February, anyway.

Chabolla v. Classpass, Inc. (9th Cir. - Feb. 27, 2025)

Humor in appellate opinions is definitely a hit-or-miss proposition. Sometimes the jokes land, particularly if they're a bit subtle. Other times, they fall flat.

I thought that Judge Mendoza's introduction to today's opinion fell into the former category. I liked it, and it brought a sly smile to my face:

"Like many wishful thinkers, Katherine Chabolla started off 2020 by resolving to improve her fitness and wellness. So that January, she went online and purchased a trial subscription with ClassPass, a company offering packaged deal access to gyms, fitness studio. Putting many of us to shame, her New Year’s resolution lasted through February. But March brought with it a global pandemic, and California’s gyms and studios closed their doors. ClassPass did not charge Chabolla’s account for months, but when operations resumed so did ClassPass’s charges. Chabolla sued, alleging the resumed charges violated California law. ClassPass argues that when Chabolla used its website, she agreed to arbitrate any claims against it. 

We are presented with a question of ever-increasing ubiquity in today’s e-commerce world: whether an internet user’s online activities bound her to certain terms and conditions. We do not know if Chabolla’s New Year’s resolution survived 2020. But as to her claim in federal court, we hold that it survives ClassPass’s motion to compel arbitration and affirm."

Well done. 

Now, not everything in the opinion definitely hit. Later in the opinion, for example, I somewhat thought this particular reference was a bit forced:

"As Ross Geller and Chandler Bing once learned the hard way, there are few contracts more difficult to escape than those for gym memberships."

Still, I appreciate the effort.

Rodriguez v. Packers Sanitation Svcs (Cal. Ct. App. - Feb. 26, 2025)

Check out the cage match fight between San Diego and Imperial Counties, on the one hand, and Los Angeles County on the other. Two historically bitter opponents who now fight it out in the Courts of Appeal.

It's not the counties themselves fighting, mind you. It's instead the relevant justices.

Two months ago, in Leeper v. Shipt, the Second District (Division One) held that plaintiffs in PAGA cases weren't allowed to bring purely "non-individual" claims in order to avoid partial arbitration, and that instead, the "collective" PAGA claims were to be stayed while the "necessary" individual PAGA claims were resolved in mandatory arbitration.

Today, the Fourth District (Division One) disagrees with -- and expansively critiques -- that opinion, holding that plaintiffs in PAGA cases can indeed, as the plaintiff does here, bring purely collective claims in order to avoid arbitration, and that resolution of whether individual PAGA claims is necessary is a legal pleading issue that must be resolved in court, not in the arbitration proceeding.

The California Supreme Court will need to umpire this battle royale fairly quickly. It's a pretty big issue.

Do you bet on the scrappy underdog (San Diego) or the traditional behemoth (Los Angeles)?

Siskiyou Hospital v. Siskiyou County (Cal. Ct. App. - Feb. 25, 2025)

I get everything that Justice Duarte says here. All of the causes of action brought by Siskiyou Hospital apparently fail for lack of a cognizable legal basis.

But doesn't it bother you that the County of Siskiyou does indeed seem to be "dumping" mental illness patients at Siskiyou Hospital?

I understand that the County (e.g., police officers) might reasonably want to make sure that people who might be acting crazy aren't doing so because of an underlying medical -- as opposed to psychiatric -- reason. So it makes sense to initially take them to a hospital. Even a tiny, 25-bed hospital like the one here. It has an emergency room. The hospital can medically clear them fairly rapidly.

But after they're medically cleared, it seems like, on numerous occasions, the County basically just leaves them there. Sure, they sent over a crisis worker to evaluate the patient. But then the patient typically just sits there. The County doesn't actually transfer the patient to a mental health facility (as it's required to do) to receive mental health services for a fair piece of time -- on average, it takes most of the day, and at times, the County has left people in the hospital for weeks without providing any mental health services. The whole time, the hospital has to take care of the person and doesn't get paid, while the County sits on its butt and doesn't have to provide any of the services that the Medicaid Act requires.

That sounds wrong, no?

And we're not talking about a small number of people here. It's a 25-bed hospital, but the County dumps 200 to 300 people there every year. That's a lot. Especially for a small county like this one.

I'd have liked to have seen a little more concern -- even if it was just extralegal concern -- in the opinion for the hospital's plight. As well as for the plight of the underlying patients. Perhaps there's indeed no actionable legal cause of action. But surely this is not the way things should operate. It'd be nice to have at least said that somewhere.

Packard v. Packard (Cal. Ct. App. - Feb. 24, 2025)

Dad creates a trust in 2010 that splits his estate equally between his two sons. Dad amends the trust in 2012 to say that when he dies, one son, Greg, gets Dad's house, and Scott (the other son) gets money equal to the appraised value of the house. 

In short, in both versions of the trust, the estate is split equally between the two sons. Which is what one typically expects.

But, in 2014, Dad appears to have handwritten "half" onto the latest version of the trust. That way it reads that Greg gets the house, but Scott only gets half the value of that house.

When Dad dies in 2020, the two sons fight over the trust. Scott says that Dad was just confused; that he was old, and thought that putting in "half" meant that the kids would split the estate equally, whereas Greg contends that, no, Dad knew what he was doing, and only wanted to give Scott half of the house (but with everything else split equally).

So in 2022, Scott sues, claiming that he should have gotten the full value of the house, not just half.

The trial court thinks that this is a contest to the trust, and since contests have to be filed within 120 days, dismisses the petition as time-barred. The Court of Appeal reverses. It's not a contest. It's an attempt to reform the trust to comport with Dad's actual intent.

What I liked most about Justice Buchanan's opinion in this regard is its penultimate footnote, which I thought was super persuasive. I don't know if Justice Buchanan thought up the hypothetical himself, if it came out of one of the briefs, or if it came from one of the other justices, but I found it very insightful and informative. The trial court thought that Scott's petition was a "contest" on the theory that his claim was inconsistent with the text of the trust itself, whereas the Court of Appeal thought that reformation to comply with the testator's intent was a different animal. The relevant paragraph and footnote read:

"Greg’s argument to the contrary conflates the merits of Scott’s claim with the nature of Scott’s claim. As Scott points out, a meritless reformation petition is still a reformation petition. It cannot be the case that the answer to whether a petition is deemed a contest to the trust or a request to reform the trust depends on how persuasive the extrinsic evidence is of the trustor’s intent—that goes to the merits of the petition. To conclude otherwise would contradict the Supreme Court’s holding that extrinsic evidence is admissible to determine the trustor’s intent even where the donative document is unambiguous, and it would also undermine the purpose of reformation. 

[Footnote]: A more obvious example better illustrates the point: if Scott had a video that showed Newton writing the word “one-half” into the first amendment to the trust in 2014 while stating that his intent in so doing was to ensure his assets were divided equally between his sons, such evidence would clearly reflect that Newton’s true intent was as is now asserted by Scott. We assume in that scenario Greg would not dispute that Newton’s true intent would be effectuated by reforming the petition, despite the trust’s facially unambiguous use of “one-half.” The fact that Scott may not have such clear evidence does not transform his petition to reform into a trust contest."

That sounds spot on to me. Love the hypo. Sounds exactly right.

One final thing. On the merits, since the Court of Appeal now remands the thing back to the trial court (which previously dismissed the petition on the pleadings).

I really, really strongly recommend that the two brothers settle this thing. Quickly. 

The house was only worth $970,000 or so. So the relevant fight is over around $500,000 (i.e., whether Scott should have gotten $500,000 or $1,000,000 as his "share" of the house). A half million dollars is not typically worth destroying your relationship with your brother. Especially when, as here, you're already splitting the money equally from the residue of the estate.

I got a number for both brothers:

$250,000. That should be the settlement. Today.

Scott may perhaps lose at trial. He's got to prove his father's intent by clear and convincing evidence on remand, and he may well not be able to do that. Yes, maybe his father was confused, and yes, it's likely that parents (typically) want to split estates equally between brothers, and yes, that's what the rest of the trust (i.e., the residue) reflects. But that may potentially not count as "clear and convincing" evidence, even if it counts as a preponderance of the evidence. And there might be other potential reasons why Dad might want to only give "half" the value of the house; maybe Greg improved the place with his own money, maybe Dad liked Greg a tiny bit more than Scott (or Greg or his family needed the money more), etc.

But Greg might lose at trial as well. The factfinder will likely go into a trial thinking that parents generally want to split estates evenly, and that that's fair. This is by no means a slam dunk.

So just split the baby, brothers. Don't spend more money on lawyers. Not a dime. Just resolve the case today. 

Greg: Give your brother half of what he thinks he's owed. Scott's got a plausible story. Even after giving him an extra $250,000, you're still getting a quarter million dollars more than him: you'll have gotten a house worth $1 million or so, whereas he'll end up with $750,000. You're still the winner.

Scott: Don't go to trial on this. You might well lose. And maybe you're right that Dad wanted you to have the full million, but maybe he didn't. It's a totally fair compromise. And you still get lots more money than the actual text of the trust dictates.

Someone should print out a copy of this post and send it to the brothers.

It's a fair deal for both sides. (Suggested by someone with absolutely no interest in the dispute.)

Don't (further) toast a relationship with your sibling over $250,000. Strike the above compromise and move on.

Schraeder Cellar LLC v. Roach (9th Cir. - Feb. 21, 2025)

It is most assuredly not a man-bites-dog story to discover that when an attorney feels that his business partner in a winery has unjustly refused to comply with an alleged oral contract, the attorney . . . sues.

On the one hand, oral contracts are, of course, sometimes enforceable, and at least the allegation here is that the attorney tried to get the agreement down in writing, but the would-be partner preferred to operate on a handshake agreement.

On the other hand, you're a lawyer, so you presumably know that an oral "deal" isn't exactly the strongest form of contract. On both a practical as well as legal level.

In any event: The lawsuit now continues apace. Some of it, anyway.

Heffesse v. Karina Guevara (App. Div. Sup. Ct. - Feb. 19, 2025)

Adding $4 in fees to your three-day notice to quit ultimately proves fatal for the landlord here.

Should have just asked for the $1550 monthly rent. Oops.

Don't be greedy. Even a little.

Lin v. Board of Directors (Cal. App. - Feb. 19, 2025)

I mean, yeah, sure, I entirely agree with the hospital that Dr. Lin shouldn't have gotten frustrated with an elderly patient in her 70s who was arguing with him over whether she needed a refill of her skin cream, and most definitely should not have grabbed her wrist and slapped it. That's totally inappropriate.

But I also entirely agree with the Court of Appeal that this one isolated incident doesn't permit the hospital to immediately revoke the doctor's credentials and ability to practice at that hospital, without a hearing, on the ground that the doctor's conduct "may result in an imminent danger to the health of any individual." No way it satisfies that standard.

Inappropriate? Yes. Completely. Imminent danger? Not even close.

I don't care that the Board of Directors of the hospital thought otherwise. It's just not true.

Bunker v. Superior Court (Cal. Ct. App. - Feb. 14, 2025)

It would be difficult to find a faster appellate disposition than this one.

Petitioner gets arraigned on January 15, 2025 and is denied bail. Section 1270.2 allows someone who's denied bail to request a review of that determination within five days, and within that five day period, the petitioner here requested a bail review. But the trial court refused to conduct a bail review hearing.

So days later, on January 22, 2025, petitioner files a habeas writ in the Court of Appeal, arguing that he was entitled to a bail hearing review. The Court of Appeal asks if there's any opposition, there isn't any, and it issues an opinion two days later that grants the writ and orders a bail review hearing.

And then, on Valentine's Day, it publishes the opinion originally rendered on January 24, 2025.

Speedy justice. To remind trial courts that, yes, Section 1270.2 indeed means what it expressly says.

Western States Petroleum Ass'n v. California Air Resources Board (Cal. Ct. App. - Feb. 13, 2025)

I'm going to start just by including a snippet from today's Court of Appeal opinion:

"The California Air Resources Board (CARB) is responsible for establishing air quality standards to protect public health across the state’s air basins. . . . In August 2020 CARB adopted the Control Measure for Ocean-Going Vessels At Berth (the Regulation or Proposed Regulation; Cal. Code Regs., tit. 17, § 93130 et seq.), which limits emissions from tankers and other ocean-going vessels while at berth, meaning while docked or anchored at California ports or terminals. Western States Petroleum Association (WSPA) challenged the Regulation by way of a petition for writ of mandate. . . .

The Regulation targets emissions from vessels’ auxiliary engines and boilers. [Cite] Auxiliary engines generate electricity to power non-propulsion functions like pumps and lights while a vessel is at berth. [Cite] Boilers, particularly on large tankers, power steam-driven pumps to offload crude oil. The Regulation seeks to reduce emissions from these sources while vessels are idle. [Cite] The Regulation is designed to reduce the following emissions from ocean-going vessels: (1) nitrogen oxides, (2) particulate matter, (3) diesel particulate matter, (4) reactive organic gases, and (5) greenhouse gases. [Cite] The targeted emissions increase the risk of premature mortality, heart and lung disease, and other respiratory ailments, and can form acid rain in the atmosphere. These emissions particularly affect the communities surrounding California ports, many of which are recognized as disadvantaged by the California Environmental Protection Agency. [Cite] In addition to reducing the public’s exposure to these air pollutants, the Regulation is also intended to reduce emissions to combat global warming. [Cite]."

Okay. I know everyone is entitled to have an attorney represent their interests. That's a critical part of the adversary process. Moreover, as both Bob Dylan and Midge from Mad Men have aptly noted, we all have to serve somebody.

That all said, given that there are a plethora of other clients and cases in the world, I would rather not devote my life or career to representing the Western States Petroleum Association in this one, thank you very much.

Skouti v. Franchise Tax Board (Cal. Ct. App. - Feb. 11, 2025)

I'm so happy the Court of Appeal came out this way. It seems obviously right. And it didn't even take Justice Robie seven whole pages to say so.

Plaintiffs owned a 1000-acre farm in the Central Valley and back in 2002 sprayed some fertilizer on their grape crops that totally ruined them. So they sued and won a judgment of over $7.5 million, which the defendants paid.

Yay for Plaintiffs.

Plaintiffs then bought a 40-acre citrus farm to add to their holdings, and deducted over $3.2 million on their state tax return, claiming that the 40-acre citrus farm "replaced" their damaged grape crops and thus was tax deductible. The Franchise Tax Board disagreed, tax proceedings began, and it ultimately went up to the Court of Appeal. Which decides that the FTB was correct.

Which is clearly the right call.

You only get a deduction if the thing the taxpayer buys "replaces" damaged property. The damaged property here were some grape vines. But the plaintiffs here didn't replace their damaged grape vines; indeed, the trial and other evidence demonstrated quite concretely that they could have replaced the damaged grape vines with replacement grape vines, but didn't. Instead, they bought a 40-acre citrus farm.

That's not a replacement of like by like. Plaintiff's crops were damaged. They replaced those crops with essentially $3.2 million in land (that contained some trees). Crops and land aren't the same.

Here's my analogy (not Justice Robie's): If your house burns down, you can use the insurance money to replace it (without taxation) with another house. You cannot, however, avoid taxation if you use that insurance money to buy a different vacant lot.

Maybe you could use that money to buy a replacement house on a different lot. But you'd only receive a tax break, I imagine, if you spend the insurance money on the house, whereas the value of the lot (and the price you paid for it) would be totally nondeductible. But it didn't seem like there was any of that type of differential allocation here.

In short: Totally right result. Glad to see it.

K.J. v. Jackson (9th Cir. - Feb. 11, 2025)

It's always exciting to read a published Ninth Circuit opinion about a lunchtime fight in a high school just across the street from the school your children attend. So I read with interest Judge Paez's opinion this morning that reversed the grant of summary judgment to various school officials who suspended a student from La Jolla High School (with a recommendation of expulsion) without giving him the opportunity to review the evidence against him or present his side of the story.

You'd have thought that, particularly given these facts, the school district would quickly and easily settle the case, especially since the relief that the student sought appears to be minimal (i.e., removing record of the extended suspension from his files). Apparently not. 

Instead, the school district will now likely have to continue to pay its own attorneys, but also plaintiff's counsel as well.

Sometimes it's better to work things out if you can. And sometimes it's better to make sure to listen to both sides before trying to expel someone from school.

U.S. v. Thompson (9th Cir. - Feb. 10, 2025)

People might have differential reactions as to which prong of the following equation is the more erroneous of the two, but I feel fairly strongly that at least one of the prongs is wrong:

Part I: Lamar Thompson gets convicted in state court of child molestation of someone under 12 years old -- presumably (though the opinion doesn't expressly say so), his 10-year old stepdaughter and his friend's 8-year old daughter) -- and is sentenced to serve a year in prison. (An additional 68 months of the sentence was suspended.)

Part II: After his release from prison, a co-worker finds videos on Thompson's phone of him molesting his 10-year old stepdaughter and his friend's 8-year old daughter. That's child pornography. For which he gets sentenced, this time in federal court, to 28 years in prison.

So he gets sentenced to one year in prison for actually molesting the kids, but 28 years in prison for taking a video of it.

Doesn't exactly seem like the correct ratio, eh?

Gharibian v. Wawanesa Gen. Liab. Co. (Cal. Ct. App. - Feb. 7, 2025)

Nope. Nope, nope, nope, nope. With all due respect to Justice Ashmann-Gerst, and while I totally get why she comes out the way she does, I hope that the California Supreme Court (at least) decides to depublish this opinion, or to grant review.

The question is whether there's insurance coverage when there's a wildfire near your home but it doesn't burn down. (You can see how timely this issue is at present, right?) Here, there was no burn damage, but there was (allegedly) a ton of ash that rained down on the property, trashed the home's carpets, clogged up the swimming pool, etc. So the homeowners made a claim.

Personally, from at least the way Justice Ashmann-Gerst wrote the opinion, I thought that the insurance company here (Wawanesa) acted more than reasonably. They inspected the property, calculated that it would cost roughly $4300 to "clean the property inside and out" (carpets, HVAC system, etc.), and offered a contractor who would do the work for that price. Later, after the homeowners gave Wawanesa a different estimate, the insurance company paid over $20,000 (including the deductible) to make everything right, and the homeowners "cleaned up" the property themselves rather than hiring anyone. So they're up nearly $20,000 after the claim. But still sued, claiming that they should have been paid more.

Again, given these facts, at least as recited by the Court of Appeal, I'm inclined to think that this is most definitely not a case where the insurance company is acting unreasonably, or where the homeowner has been screwed out of a legitimate recovery. So I can see why Justice Ashmann-Gerst wants to -- and does -- rule in the insurance company's favor.

But the Court of Appeal holds that, as a matter of law, that there was no coverage whatsoever for the wildfire damage here. That because the house didn't actually burn down, and because the ash could be physically removed, there was no insurance coverage at all.

Nope. Nope and no. Not for me, anyway.

Justice Ashmann-Gerst centrally relies on the California Supreme Court's latest COVID-19 insurance coverage opinion, which held that the COVID virus doesn't cause "direct physical loss" to a business property. But ash is different -- way different, IMO -- than a virus. The reasons restaurants shut down during COVID-19 was because they were closed down, and business owners couldn't get around that reality by seeking insurance coverage for "physical damage" to their property allegedly because the virus purported "stuck" to the restaurant's chairs, tables, etc. That's why that case came out the way it did.

A fire is different. Ash is different. We expect that a homeowner's insurance policy will apply to damage from a fire. When the home burns down. When the home narrowly avoids burning but gets scorched. As well as when the home narrowly avoids scorching but gets covered in ash from -- as here -- a fire that burned a mere 800 yards away.

The definition in the California Supreme Court's COVID-19 case is that to be "direct physical loss" under an insurance policy, there needs to be a "physical alteration to the property" that "need not be visible to the naked eye, nor must it be structural, but [] must result in some injury to or impairment of the property as property.” COVID-19 might not qualify, but ash does. The Court of Appeal is correct that ash -- like a virus sitting on a restaurant table -- might perhaps be “easily cleaned or removed from the property" and does not  “alter the property itself in a lasting and persistent manner."

But LOTS of things that constitute insurable direct physical loss are like that. When someone writes graffiti on your home, that's easily painted over or removed and does not permanently alter the nature of the property itself, but it's darn sure covered. Ditto for those burn marks from a fire; they too can be removed, and maybe they're barely even noticeable, but you've definitely got coverage for that as well.

The California Supreme Court says that there's got to be "some injury to or impairment of the property as property." Let me tell you this for sure: When the bed in your bedroom is covered in ash, there is an "impairment of [that] property as property." You can't -- and won't -- use it for a bed until it's cleaned. Ditto, typically, for the swimming pool. Ever feel like a nice leisurely swim in a pool that's covered by a half-inch of black, wet ash? I think not. The property, qua property, is directly injured. On the Court of Appeal's theory, ash still doesn't cause property damage even if it's 8 feet deep and fully occupies the entirety of your living room. "You can just remove it." Yeah, sorry. We can, but it's still covered, and the insurance company has to pay for removing it, not me. It's damage; it damages my ability to enjoy and use the property for its intended function. It's covered.

It's possible, here, that the ash was so de minimus as to not create coverage. Though that seems a factual issue that can't be entirely resolved here in an MSJ. It's also possible (indeed, perhaps likely) that the $20,000 or so that the insurer actually paid fully -- or more than fully -- covered the actual loss. Great. If so, the insurer will win at trial. 

But to hold, as here, that ash -- like many other things -- categorically does not cause an insurable loss as a matter of law just seems starkly wrong. As well as pernicious, particularly at a time in which there are a LARGE number of people who were in fact recently injured in precisely such a fashion and who are likely in the midst of making precisely the types of legitimate (IMHO) insurance claims at issue here.

I've never made a homeowner's insurance claim for ash. Likely never will. Didn't do so even when quite a bit of ash rained down on my home as a result of the Cedar Fire back in 2003. I just cleaned it up and moved on.

But if there's a wildfire, and ash rains down and stains your carpet or mucks up your pool or simply needs to be cleaned up (like graffiti), I think you legitimately expect -- and paid for -- coverage for that. You should be entitled to make a claim if you want. It counts. It's covered. You should be paid for the costs of cleaning the stuff out.

So I think, with respect, that this one is wrong. Maybe an equitable result given the $20,000 that the insurance company already paid (and hence depublication would be fine), but wrong on the law.

Stubblefield v. Superior Court (Cal. Ct. App. - Feb. 5, 2025)

It's crystal clear that even after an appeal has been filed, a trial court retains jurisdiction to grant a convicted defendant bail on appeal(if it so chooses), notwithstanding the fact that the merits of the conviction are pending appeal. Section 1272 of the Penal Code expressly says so, and CCP 916 only deprives the trial court of jurisdiction of the underlying conviction, not ancillary matters (like bail).

This case, however, involves a slight twist. The Court of Appeal here reversed the defendant's conviction and remanded the case for a new trial, the Attorney General promptly petitioned the California Supreme Court for review, and in the meantime, although the remittitur of the Court of Appeal's opinion had not yet issued, the defendant then filed a motion for bail on appeal.

Does the trial court have jurisdiction to hear that motion?

The trial court thought it didn't, and on that basis, denied the motion. Defendant then filed a writ, saying the trial court was wrong.

On appeal, the Attorney General's office conceded error (notwithstanding the contrary view expressed below), and today, the Court of Appeal agrees. Just like a trial court has the power to entertain a bail motion pending appeal, the trial court also has the power to entertain a bail motion while the case is still technically on appeal because an opinion has been rendered, and the conviction reversed and remanded for retrial, but review was sought and the remittitur has not yet issued.

Makes total sense.

One final point. The defendant here is Dana Stubblefield. That name may perhaps sound familiar. The opinion nowhere mentions it, but he's a longtime -- quite famous -- player in the NFL, and he played for (amongst others) the 49ers and Raiders. Convicted of forcible rape, and currently facing a retrial.

One more point, actually. I was VERY surprised at the end of the opinion to see that Mr. Stubblefield had an appointed attorney for his (successful) writ petition. My guess is that the guy made at least $50 million during his decade-plus NFL career. Plus endorsements etc. Yet still ostensibly qualifies as indigent.

Not what I expected at all.

People v. Hin (Cal. Supreme Ct. - February 3, 2025)

You can read the California Supreme Court's entire 144-page (death penalty) opinion if you want, but what I found to be the most interesting -- or at least the most unusual -- part starts on page 120.

It's about penalty phase stuff, and in particular, the victim impact testimony here. Appellate courts grant  lower courts huge leeway in this arena, so I'm not surprised in the slightest that the California Supreme Court finds that there was no reversible error.

Nonetheless, I thought the dynamic in the trial court warranted at least mention.

It's a murder case (of course), so at the penalty phase, the prosecution has the murdered victim's seven year old brother testify. That testimony is heart-rendering, as might perhaps be expected. The boy talked about how his brother was in heaven now, how they used to play together, how much he missed him, etc.

What I thought was unusual was how the trial judge reacted. He's a judge, obviously, but he's also human. And he was particularly struck by the little brother's testimony. So much so that, essentially, he started to "nearly" tear up.

As he felt himself doing so, he turned away from the jury so they wouldn't see him. And at the end of the little boy's testimony, the judge was still so verklempt that he didn't even feel like he could excuse the jury himself; he wrote a note and had the clerk do it. Presumably so the jury wouldn't hear his voice potentially break as he did so.

(Here's a snippet of what the trial judge put on the record in that regard: “I will say that during the testimony yesterday afternoon, when that little boy . . . testified and with tears streaming down his face, talking about never seeing his brother again and missing his brother because he wouldn’t be able to play with him again, it did affect me and — however, I was on the verge of having a reaction. In other words, I didn’t have tears in my eyes, but I didn’t want the jury to see me, so I turned so the jury would not see me. But I will say I didn’t trust myself to speak. . . . Not even to say recess, and so that’s why I wrote to my clerk to have — to have her recess the jury and I left because I didn’t want the jury to see me, and — although I didn’t have — in other words, while I wasn’t crying, half the courtroom was crying, I could hear, but it was just one of those situations where, yes, that little boy affected me and I will say this, I have a weakness for small children in distress and it’s the first time that’s ever happened to me in court in almost 22 years, but my main concern was to hide my reaction from the jury. So far as I know, the jury didn’t see anything. Judges are human, too. So I will put this in — make this part of the record.”)

I get it. It's emotional. Even for judges sometimes. No harm in being human. And it seems to me like the judge was totally careful and professional here. No reversible error.

Still. Unusual. This type of stuff doesn't usually get to judges, who are used to hearing some incredibly disturbing (and sad) stuff.

But sometimes it does.