People v. Rosen (App. Div. - Oct. 22, 2025)

Published opinions from the Appellate Division are always interesting because they typically involve small-value but oft-repeated situations. Like here. Barry Rosen gets an automated red light ticket and fights it. He loses, but appeals, saying that the particular employee who issued the ticket wasn't a peace officer and wasn't qualified to write the citation (even though, thereafter, it was reviewed and confirmed by a police officer at trial).

The Appellate Division agrees. Red light ticket dismissed.

There's a net public benefit to litigation like this one, in my view. The net result will likely be that the City of Hawthorne -- and perhaps other cities like it -- will change, albeit perhaps very slightly, the types of persons who initially review and issue red light tickets (or at least their formal job title). That's probably what the Legislature intended, so great, the law will work as supposed. Tickets still go out, but there's a tiny (alleged) increase in quality control before they do. Great.

Now, was it worth the extensive litigation below, as well as on appeal, to get there? Probably not. Reading today's opinion, I get the keen sense that the appellant (and recipient of the ticket) -- Barry W. Rosen -- did a ton of work here. I mean: a ton. It's a simple red light ticket. The opinion reflects (1) a motion to compel discovery filed by Mr. Rosen (and denied); (2) multiple continuances (the ticket was issued on September 10, 2022, and the court trial didn't happen until almost two full years later, starting on August 6, 2024); (3) the filing of three separate pretrial motions in limine filed by Mr. Rosen (and denied); (4) a mid-trial motion to dismiss by Mr. Rosen (and denied); (5) the resulting appeal and resolution (at which Mr. Rosen prevails); (6) multiple motions on appeal filed by Mr. Rosen to augment the record; and (7) two different oral arguments on appeal -- one initially, and another (requested by Mr. Rosen) after a change in the panel.

That's a lot. For a simple red light ticket.

Now, again, in the end, Mr. Rosen prevails. Good for him (and, perhaps, everyone).

But I'm always intrigued by pro se litigants who spend a ton of time on contested, low stakes disputes like this one. I read about many of them, and know some of them personally. They spend a massive amount of time, particularly relative to the stakes at hand, litigating the matter to conclusion.

One the one hand: I get it. We're a nation of laws. When the law is violated, everyone -- including the litigant -- has an interest in getting it right. We want people to do what they're supposed to, and when they don't, we want them held accountable.

But on the other hand, the dispute often involves matters that most "regular" people simply let go, or as to which they devote minimal efforts. As here, they just pay the stupid red light ticket. Or they fight it in court for 30 minutes ago and, whichever way it goes, end it there.

Not here. Instead, it's a major fight. Over a traffic ticket. Something that the overwhelming number of recipients who simply pay and move on.

A little digging reveals that there's indeed a "Barry W. Rosen" in the Los Angeles area (which is where the ticket here was issued) who's described in at least one opinion as a "serial litigant" who fights a fair number of pro se fights. Regardless of whether it's the same Barry Rosen, it's interesting to me to see pro se litigants who serially litigate things like this. Some of them have obviously sufficient intellectual chops to become lawyers, had they elected to go that route. Others have very particular impressions on what the law "is" or should be.

Anyway, an interesting world. At issue, at least in part, in this particular red light ticket dispute.

U.S. v. Kroytor (9th Cir. - Oct. 21, 2025)

I suspect that Yuly Kroytor was amongst the most severely unhappy people upon President Trump's election in 2024.

He's a U.S. permanent resident (as of 1995) from Canada, and he pled guilty to health care fraud in 2003. The government commenced removal proceedings in 2008 -- after stopping him at the Canadian border in 2007 as he came back to the U.S. -- and he's been filing motions in immigration court and in federal court ever since, principally focused on attempting to get his criminal conviction overturned. All unsuccessful. Including today's opinion, which again finds against Mr. Kroytor.

That, as far as I can tell anyway, for now, he still appears to remain in the United States.

Though I can't imagine for long.

King v. Villegas (9th Cir. - Oct. 20, 2025)

Judge Fletcher's majority opinion simply has the better of the argument here. Yes, the Supreme Court has held that, as a matter of issue preclusion, you can't file a civil suit if you were found (or pled) guilty to the underlying offense. But the defendant here entered a nolo contendere plea, which expressly doesn't admit guilt. Judge Callahan's dissent admittedly gives potentially good reasons why, as a policy matter, we might want to hold that such pleas also bar civil lawsuits. 

But there's a rule about this: Federal Rule of Evidence 410(a). The text of that provision is both clear and categorical: 

"In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: . . . (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas."

Further, the history of that rule, as well as the express purpose of its 1979 amendment, makes crystal clear that the rule was intended to function in precisely the manner described by Judge Fletcher. So it's not that Judge Callahan doesn't have an argument. It's just not the law.

In my view, if the Supreme Court wants to have nolo contendere pleas bar subsequent civil suits, then it can easily accomplish this objective. Just change Rule 410(a) -- which the Supreme Court itself created (and can amend). No problem. But, at present, the rule says that if you plead nolo contendere, that fact can't be used against you in a civil suit. Period. Hence today's result.

The end of Judge Callahan's dissent also seemed a bit overly aggressive to me. The last paragraph says:

"Finally, the scope and impact of the majority opinion should not be underestimated. Very few criminal cases actually go to trial, most are resolved at the pleading stage, and many of those are the result of nolo contendere pleas. Thus, the majority’s strained reading of Rule 410(a) would subject state officials to a broad swath of civil cases that as a matter of fact imply the invalidity of the plaintiffs’ underlying convictions and thus should be barred under Heck, as is the case here. Indeed, the majority’s approach paves the way for criminal defendants to plead nolo contendere to criminal charges and then sue the officers for their actions in apprehending them."

The predicate fact -- that most cases get resolved by pleas -- is undeniably true, but the conclusion she reaches does not necessarily follow (at all) from that premise. In particular, while criminal defendants might perhaps in particular cases have some incentive under today's ruling to potentially plead nolo contendere (rather than guilty), the state has no obligation to accept such a plea. Every single state -- as well as the federal system -- that allows such a plea allows a court, in its discretion, to reject such a proposed plea. And several states categorically don't allow such pleas in any event (and others severely restrict them). So if it's one of those settings in which a nolo contendere plea would indeed "subject state officials to a broad swath of civil cases," the state should (and presumably would) neither offer nor agree to such a plea deal. And if the defendant nonetheless insists upon "pleading to the sheet" (i.e., not striking a "deal", but instead just pleading no contest to the entirety of the charges), then the state can object to that request and inform the court that they'd rather have a trial, and let the judge know why the plea should be rejected. As a practical, as well as legal, matter, I think that the risk of expansive state civil liability from nolo contendere pleas is practically zero. No one's required to make those deals, the court has discretion to reject them, and the state is exceptionally well situated to protect its own interests in these matters. Today's opinion won't substantially move the needle on this point at all.

As if the Supreme Court disagrees, well, then it can amend Rule 410 accordingly. Their call.

Kouvabina v. Veltman (Cal. Ct. App. - Oct. 16, 2023)

I would mention this opinion regardless, since it concerns an attorney who's declared -- by the Court of Appeal, no less -- to be a vexatious litigant. Unusual, to say the least.

Not surprisingly, it's a family law case. An ugly, messy divorce.

What I found particularly interesting about the opinion, however, is what's nowhere inside of it.

The opinion mentions that the person declared a vexatious litigant -- Elena Kouvabina -- is an attorney, and that he former spouse is also an attorney. Otherwise, there's pretty much nothing about the litigants.

But in less than sixty seconds of digging, I discovered that the vexatious litigant at issue graduated from U.C. Berkeley Law School. Not your usual background for a vexatious litigant. And that she previously worked at Wilson Sonsini. Again, not what I expected.

And that she currently works as a staff attorney . . . at the Commission on Judicial Performance.

So, yes, the lawyer declared a vexatious litigant by the justices on the Court of Appeal is responsible for evaluating misconduct allegations against these very same judges.

Wow.

Ani v. Bondi (9th Cir. - Oct. 16, 2025)

Daniel Ani would not have been kicked out of the United States had this case been twenty, or even ten, years ago.

Mr. Ani, who is a citizen of Nigeria, consistently testified that he was a member of a nonviolent group (MASSOB) that advocated for an independent state of Biafra. The Nigerian government strongly disliked that group. He said that the police attacked his group's meetings, shot and killed people, tortured him by putting a stick up his anus, kidnapped him, and did a wide variety of other despicable acts designed to persecute him for his political beliefs. And he has a contemporary newspaper article from a neutral reporter that describes his escape, by name, from one of these attacks by the government.

But Mr. Ani wanted to escape Nigeria so much that while here on a student visa, he paid someone $6,000 to marry him, and ultimately confessed to that scheme. Even though that sham marriage had nothing to do with his political persecution (other than perhaps being motivated by his desire to stay out of Nigeria), the immigration officer held that this lie, standing alone, was a sufficient basis upon which to hold that Mr. Ani was lying about everything he ever said. So you don't have to believe the newspaper article, the detailed and consistent testimony about political attacks (backed up by country reports), etc.

The Ninth Circuit affirms. 

California Dental Ass'n v. Delta Dental (Cal. Ct. App. - Oct. 10, 2025)

I discovered from this opinion that Delta Dental "is the state’s largest provider of dental plans." Maybe some readers have it.

Regardless, if you want to learn about the internal intricacies of this organization, Justice Banke lays them out in this 40+ page opinion. Suffice it to say that some dentists were unhappy about how they were paid, and sued, but lost.

In the meantime: Take care of your teeth.

U.S. v. Tainewasher (9th Cir. - Oct. 10, 2025)

There's a ton of value in Judge Graber's dissent here, particularly about what it means (or does not mean) for a district court to have committed "plain error." Definitely worth reading.

On the merits, personally, I'm fairly confident that the defendant here did indeed actually commit at least one drug offense, and not merely attempt to do so via Facebook. Here are the relevant messages:

"[O]n April 23, 2020, Tainewasher received a Facebook message from “Trigger Tre” stating, “I really need em ill get em off yu fasure,” and asking, “Do yu have em or not[?]” Tainewasher replied, “No I don’t . . . I was selling them for someone I will have more later.” A few days later, on April 29, 2020, Tainewasher messaged Trigger Tre that she “got pills.” Trigger Tre replied, “Rn?” (meaning right now), to which Tainewasher replied, “Yea.” 

On April 27, 2020, Tainewasher received a message from another individual asking if she “ha[d] any blk” (a term for heroin). She replied that she could “get you some,” which she would “[t]rade for shards” (a term for methamphetamine). On April 28, 2020, Tainewasher wrote back that, “I have dark” (a term for heroin), and the two messaged about the logistics of a meet-up. 

And on June 9, 2020, Tainewasher received a message from yet another individual, who asked, “U know where I could get a ball of shards[?]” (a term for 3.5 grams of methamphetamine). Tainewasher replied, “Yea I’ll have it in a bit.” Approximately one hour later, Tainewasher responded, “I have it,” and “[o]n my way.”"

Was there police surveillance or other evidence of the underlying transaction(s)? No. But I'm fairly confident that, yes, at least one drug deal actually went down. (Particularly the last one.)

Now, am I certain of that fact beyond a reasonable doubt? Probably not. Which is Judge Graber's principal point.

But, FWIW, I would bet a lot of money that it did, in fact, actually happen.

De Meo v. Cooley LLP (Cal. Ct. App. - Oct. 8, 2025)

I'm always interested in published opinions that involve lawsuits against lawyers. Doubly so when the case involves a lawsuit against a big law frim -- here, against Cooley. And triply so when the opinion is written by the 4/1 down and arises down here in San Diego.

Hence my particular interest in this opinion earlier today. Which, as an added bonus, involves core issues of legal ethics, which is a particular interest and expertise of mine.

Justice Irion's opinion affirms the trial court's grant of summary judgment to Cooley, and her analysis seems exactly right to me. A huge problem for the plaintiff is that he admitted at his deposition that Cooley "made clear" to him that it believed (perhaps accurately) that it did not represent him, and that he was instead represented solely by his own lawyer. Once you say that in your deposition, you're hard pressed to submit a contrary (inadmissible) declaration that, as here, contradicts your deposition testimony. No representation, as a general matter (albeit with important exceptions), means no duty.

It also hurts plaintiff that their declaration from their legal ethics expert got excluded below, as well as how the plaintiff (and his counsel) attempted to address that issue on appeal. Here's what the Court of Appeal says on that front: (Plaintiff's legal ethics expert was a California lawyer, Edward McIntyre.)

"To support his contention that Cooley owed him a fiduciary duty, De Meo also relies, in extremely general terms, on the McIntyre Declaration. 

De Meo has not pointed us to any specific item in the McIntyre Declaration that he wants us to consider in support of his appeal. Instead, De Meo’s opening appellate brief refers, sweepingly, to paragraphs 138 through 202 of the McIntyre Declaration and states, without elaboration, that “McIntyre’s opinions demonstrate the existence and breach of fiduciary duty, along the same lines as the issues discussed” in the section of De Meo’s brief that discusses the manner in which Cooley allegedly violated the Rules of Professional Conduct. We are not required to search the record to develop De Meo’s arguments for him. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“The reviewing court is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived.”].)

 However, even if De Meo had identified any particular part of the McIntyre declaration that he wants us to consider, Cooley filed objections to large portions of the McIntyre Declaration, and the trial court sustained all of those objections. De Meo contends that the trial court erred in sustaining Cooley’s objections to the McIntyre Declaration. However, De Meo fails to develop the argument by directing us to any specific objections that he believes were improperly sustained. Instead, in a cursory argument, De Meo contends that the trial court erred, across the board, in sustaining all of Cooley’s objections."

That's not good enough. Which means, in the end, that summary judgment gets affirmed.

Did Cooley, in my view, make a mistake? Definitely. For one thing, no way should it have talked to De Meo without his lawyer present (and without the lawyer's consent) during the transaction. That's arguably (indeed, typically) a violation of the ethical rules, and it also led (in my view) directly to the lawsuit here. It also left Cooley open to De Meo claiming that Cooley told (or implied to) him that it was his lawyers. Cooley's just lucky that De Meo said what he did in his deposition. Had De Meo not done so, this case could easily have gone the other way.

Lesson of the day: Don't talk to a represented party without the other lawyer's consent (and, hopefully, presence).

People v. Molina (Cal. Ct. App. - Oct. 2, 2025)

Be nice to your kids. Otherwise they might put you in a home like this one (in Riverside):

"On January 24, a relative of a Secure Hands resident called the police after the relative visited the facility. When the responding officers entered the facility, they were overcome by the smell of human waste. The officers found one woman lying in fecal matter on a bare box spring. She had Alzheimer’s disease and was unable to move on her own or speak. She was unclothed except for a soiled adult diaper, and there was a mattress next to her that had feces and urine all over it. A second woman was trapped under another mattress in the same room. The second woman was also unclothed except for an adult diaper, which was saturated with feces and urine, and tears were streaming from her eyes. She appeared weak and asked for water; she said that she had not had water for days. The officers found a male resident in another room who appeared to be having a seizure.

The officers found Michael in a third room. He was screaming for food and said that he had not eaten in awhile. He also said that he had limited mobility and could not get out of bed that day. The pad on his bed was soaked with urine, and he reported that the pad had not been changed in days. Michael told the officers that someone came to care for him a few days per week, but that person had not been there for awhile. The person bathed him and changed his bed pad, but if she did not visit, the pad could go days without being changed."

There's additional disgusting stuff in the opinion as well. The place was a nightmare.

Fortunately, at least one person went to jail. Though, in this case, for only four months.

They are perhaps lucky that I was not the judge.

Berkeley People's Alliance v. City of Berkeley (Cal. Ct. App. - Sept. 30, 2025)

Here's an example, in my view, of the empty formality of texualism.

California's Brown Act states that city council meetings should generally be open to the public, but that "[i]n the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.”

During three Berkeley city council meetings in late 2023 and early 2024, the public was disruptive, so the city council decided to close the meeting. But instead of physically removing the public from the room the city council was initially in, the city council moved to a different room and continued the session without the public. Plaintiffs sued, claiming that the Brown Act required the city council wasn't allowed to move to a new room, and instead had to stay in the same room but clear the public.

The trial court dismissed the lawsuit. The Court of Appeal reverses, holding that this states a claim under the Brown Act. Because the words of the statute expressly say that the city council could "order the [] room cleared and continue in session" but don't expressly say that the city council can move rooms.

To me, that's silly. It matters not one iota what room they're in. The public's excluded. Who cares whether it's the original room or a different one? Moreover, there's good reason to simply move rooms. That way you don't have to physically remove people, with the resulting potential for violence.

Yes, the statute says "order the meeting room cleared and continue in session." But that's what the city council did. It "ordered the meeting room cleared" -- albeit after it had moved to a different room; i.e., eventually, the public was cleared" and "continue[d] in session" (in a different room). The words of the statute weren't violated.

And even if they were, I'd have interpreted the Brown Act pursuant to Section 3533 of the Civil Code, which dictates the statutory maxim that "The law disregards trifles." It's irrelevant whether the initial meeting room is cleared and the meeting continues in that empty room or whether that initial room is emptied only later and the meeting continues in a different room. The public isn't there either way. The difference is a trifle (if that).

Ditto for Section 3511 ("Where the reason is the same, the rule should be the same."), Section 3528 ("The law respects form less than substance."), and Section 3532 ("The law does not require idle acts.").

I would have affirmed. (And were I on the California Supreme Court, I would vote to grant review and reverse. 'Cause the resulting opinion, in my view, literally requires only a half-dozen pages. It's easy..

Kashanian v. National Enterprise Systems (Cal. Ct. App. - Oct. 1, 2025)

Kudos to Justice Rodriquez for publishing this opinion today. The trial court thought that plaintiff didn't have standing to seek statutory damages since he didn't suffer any actual injury, so dismissed the lawsuit. That's clearly wrong. Standing in state court is different than in federal court. (And, even there, statutory damages sometimes themselves create standing.) The statute here allows statutory damages -- in order to deter misconduct -- even absent actual injury. Exactly right.