Tavares v. ZipCar (Cal. Ct. App. - Jan. 30, 2026)

The Court of Appeal holds that ZipCar -- which rents cars remotely with no in-person contact -- has no duty to make sure that the person renting the vehicle isn't intoxicated (e.g., by installing breathalyzers in the vehicle). Summary judgment to ZipCar affirmed.

I wanted to comment not on the substance of the opinion, but instead merely about a strange footnote whose presence I didn't understand.

The opening "Factual and Procedural Background" section of Justice Krause's opinion cogently explains both the facts of the case as well as the trial court's grant of summary judgment to defendant. It concludes by saying the following:

"As to any claim of vicarious liability, the trial court found that the Graves Amendment preempted claims based solely on Zipcar’s ownership of the vehicle. Judgment was entered in favor of Zipcar on January 5, 2024.[Footnote 1: "The trial court judge has since retired from the bench."] Tavares filed a timely notice of appeal on February 21, 2024."

Doesn't that footnote seem weird? Does it matter at all that the trial judge subsequently retired from the bench? Why include that fact? Reading the opinion, it just made no sense to me.

I wondered whether there was some controversy or investigation into the trial judge, which the opinion lists as David W. Rosenberg of Yolo. Nope. Judge Rosenberg -- like many judges -- simply retired after he served 20 years and was entitled to his full pension. Nothing unusual at all there.

But the various stories about Judge Rosenberg's retirement said that he announced his retirement in October of 2023 and that it was to be effective at the end of the year. If that's right, though, and if judgment was indeed entered on January 5, 2024, then the trial judge did not "subsequently" retire. He retired before entry of judgment, and someone else must have taken over.

So maybe in an earlier draft of the opinion there was a sentence about the new judge entering judgment based on the previous grant of summary judgment, with a supporting footnote, but that footnote remained even after the underlying sentence was deleted? That's all I can figure. Total speculation, of course.

Anyway: Weird footnote. But, yes, the trial judge did at one point leave the bench.

As, ultimately, they all will.

Brown v. DMV (Cal. Ct. App. - Jan. 30, 2026)

I'm glad that the Court of Appeal came out this way.

If you feel that someone's an unsafe driver -- perhaps due to their age, medical condition, or the like -- you're allowed to report that fact to the DMV. After contacting you and ascertaining the basis for your fears, the DMV may (or may not) ask the driver to provide a doctor's note certifying their medical ability to drive safely. And if the DMV's not happy with the doctor's note, they might ask the driver to retake a driver's test.

The DMV says that you're allowed to make these reports anonymously and that they'll try to keep these reports confidential "to the degree possible." Plaintiff here was one of those drivers, and sues to find out who initially ratted him out.

The Court of Appeal holds that there's no per se right to obtain the identity of the person who reported you to the DMV, and refuses to disclose that information here. That seems to me the correct approach to the various balancing factors.

I might highlight even more than Justice Robie does the need for anonymity here. Perhaps there's some risk of anonymous reporting out of spite or error or the like. But my sense is that a very large number of these anonymous reports come from family members; in particular, adult children who have ample reason to be seriously concerned about the risk of driving by one or more of their elderly parents -- to themselves as well as to the public. You're very rarely going to report your parent, even if it's entirely well founded, if you think it might come back to you.

I've personally seen several examples of children who were seriously, and for good reason, concerned about their parent's driving. Sometimes you can solve these things through persuasion, but a lot of times, you cannot. There's a fair degree of personal pride and freedom involved, after all. My grandmother, for example, lived in Alexandria (Virginia) and one night ended up randomly driving four hours in D.C., entirely lose, before ending up at a Denny's at 2:30 a.m. when a concerned waitress finally contacted my parents. Everyone knew she shouldn't drive, but she was insistent. Their solution was to pull the battery cables from her car and tell her that the car was "broken" and needed to be "fixed" -- a statement that was technically true, and served as a solution for the next year or two (as my grandmother's conception of time at that point was a fair piece off). But if the only solution had been to report her to the DMV, I'm confident that'd have been done. As long as it could be done anonymously.

Lots of families have stories like these. (My wife's aunt, for example, became an absolute terror on the roads during her final years.) The balancing test, in my view, comes out strongly in favor of anonymity.

(And, to be clear, I say this as a declaration of interest. I'm getting up there in age. If anyone in my family ever tries to stop me from driving, I'll be extraordinarily miffed. And out to get them.)

Sellers v. Superior Court (Cal. Supreme Ct. - Jan. 29, 2026)

Every single word of Justice Liu's (unanimous) opinion here makes total sense. Which is not surprising, since you'd reach exactly this result simply by applying -- as he does -- traditional common sense.

It's not a violation of the "open container" law to have tiny, unusable crumbs of marijuana that was spilled onto the back seat of a vehicle. There's no "container" at all. And even though, sometimes, it might violate the law even if there isn't a container -- Justice Liu is exactly right that it'd be silly for "an open bag of marijuana gummies in the center console" to violate the statute but not "the same gummies dumped into the console" -- here, the .36 grams (!) of  “weed crumbs scattered on the rear floorboard behind and under the passenger seat" totally doesn't qualify as something illegal.

It's just common sense. Exactly right. Every word.

Though there's actually one thing I'm not sure is entirely accurate these days.

Justice Liu quotes the Voter Information Packet for Prop. 64 to note that "marijuana is 'most common[ly]' smoked and that users '[t]ypically' smoke only 'dried flowers'." (The opinion mentions this to highlight that the presence or absence of paraphernalia for smoking may be a significant factor in whether the weed is actually usable.) 

Maybe that was true back in 2016, but I suspect that, in the modern era, edibles and other alternatives have taken the lead. Even in 2018, available statistics indicate that only 58% of marijuana use was smoked flower, with edibles, dabs, drinks and other alternatives comprising the remaining 42%. As of 2023, it looks like flower was basically tied with edibles (only 6% higher), and I'd wager a fair piece that the pro-edible trend has only increased since then.

Now, I'm not blaming Justice Liu. He and other other Justices may perhaps not have deep personal knowledge of contemporary marijuana consumption patterns. (Though, who knows: I could be wrong.)

But my own limited interaction with the Modern Youth of California may suggest that dried flower is increasingly old school. It still exists, for sure, as the pungent aroma emanating from the beach parking lot across the street from my house attests pretty much every single sunset. But edibles, FWIW, are the new Thing.

In re Conservatorship of B.K. (Cal. Ct. App. - Jan. 28, 2026)

There are a couple of tangentially interesting things about this opinion. But there's also one thing that is, in my view, demonstrably (and meaningfully) wrong.

It's a conservatorship case where the appellant (B.K.) is an institutionalized schizophrenic and, at the most recent annual hearing, is found at a bench trial to still be gravely disabled. Appellant contends on appeal that she didn't properly waive her right to a jury trial, but the Court of Appeal affirms.

The two tangential things first.

First, the Court of Appeal drops a footnote that refers expressly to appellant's appointed appellate lawyer (though not by name). The Court of Appeal concludes that the proper resolution of this appeal is largely controlled by a prior case, Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 904 (C.O.). Here's what the Court of Appeal says in footnote 5:

"B.K.’s appellate briefing cites C.O. only in a “but see” parenthetical about harmless error. We remind B.K.’s counsel, that “[a]ttorneys are officers of the court and have an ethical obligation to advise the court of legal authority that is directly contrary to a claim being pressed.” (In re Reno (2012) 55 Cal.4th 428, 510, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.) We trust that counsel will meet this ethical obligation in all future briefing."

A subtle (or perhaps not-so-subtle) reminder.

Second, I just thought it was interesting how the whole waiver thing works out. As a reminder: B.K. is schizophrenic. So her reasoning process is less than perfect. The Court of Appeal is ultimately right that, on the day of trial, B.K. personally waived her right to a jury trial. Here's what she said at that point:

“Ms. Altes: So we had a conversation about court versus jury trial and that we would have the court trial today, and I believe [B.K.] would like to have her trial today which would mean it would be a court trial.

[B.K.]: Yeah. 

The court: Okay. So that means you are waiving and giving up your right to have a jury trial to have a court trial today with me; is that right? 

[B.K.]: Right. 

The court: Counsel joins? 

Ms. Altes: Yes.”

Yep. That's a waiver.

But contrast that brief waiver to B.K.'s prior, quite expansive and deliberate, previous demands for a jury trial in the underlying case, just four months previously:

“The court: [B.K.], we are here to see whether or not you want to stay on conservatorship for another year and have [M.G.] remain your conservator. What do you think? 

[B.K.]: No. I want a jury trial. 

The court: okay. So that means you want to get off conservatorship, you don’t want [M.G.] to remain as your conservator, and we have a trial, right? 

[B.K.]: I want a jury trial. [¶] . . . [¶] 

The court: Why would you like to have a jury trial instead of a court trial? It is your choice. I just want to know the reason.

“[B.K.]: I want a jury trial because I want to get off conservatorship. 

The court: Okay. 

[B.K.]: I want a jury trial. 

The court: Okay.”

That's pretty darn clear, no? I just thought it interesting that we're happy with a two-word waiver from a schizophrenic who's admittedly hearing voices when she's previously expressed clearly and at length why she most definitely wants a jury trial.

Oh, and maybe this is "Third," but just as a general matter, I thought that the opinion gave an interesting insight into the internal thought process of B.K. when it recounted some of B.K.'s trial testimony. Here's a part:

"B.K. also testified on her own behalf. She stated that her medications had no effect other than causing unpleasant side effects. She also testified, “I like the voices” and “I want to keep the voices.'"

Classic line. "I like the voices."

Okay, now to the doctrinal part. The part I sincerely hope that Justice Collins removes from the opinion.

Here's the very last paragraph:

"Even if we were to assume for the sake of argument that an additional advisement was required before the court accepted B.K.’s waiver, any error was harmless. (C.O., supra, 71 Cal.App.5th at p. 919 [applying a harmless error analysis]; People v. Sivongxxay, supra, 3 Cal.5th at p. 187 [same].) Under the harmless error standard, B.K. must show that it is reasonably probable that a result more favorable to her would have been reached in the absence of the error. (C.O., supra, 71 Cal.App.5th at p. 917.) B.K. has not made such a showing. B.K. does not challenge the court’s finding that she was gravely disabled, which was supported by the testimony of Dr. Arom and B.K. herself. There is no suggestion that a jury trial, had B.K. chosen one, would have resulted in a different outcome. B.K. therefore has failed to demonstrate reversible error."

With utmost respect to Justice Collins and her chambers, that's 100% wrong.

When you're deprived of a jury trial, that's categorically structural error, and is not subject to harmless error review. That's because, among other things, we can never tell for sure what a jury would have done as opposed to a judge. That's blackletter law. By contrast, the two cases that Justice Collins cites both hold that inadequate advisement of the right to a jury trial is subject to harmless error review if the evidence is clear that the defendant would have waived their jury trial right anyway. That's crystal clear from Sivongxxay and C.O. themselves. (Sivongxxay: "This assessment entails a review of the record to ascertain whether it reveals a reasonable probability that the defendant would have opted for a jury trial . . . [W]e consider what the defendant would have done, not what we believe he should have done. . . . In conclusion, because the record before this court on appeal provides no basis for concluding that defendant would have chosen a jury trial . . . we find the error harmless under the Watson standard." C.O.: " We also see nothing in the record suggesting that C.O. would have elected a jury trial over a court trial if the trial court had advised him personally at the court proceeding of his right to the former. The omission of the jury trial advisement was harmless on this record.").

Today's opinion finds harmless error because it thinks that there's no evidence that a jury would have decided differently than the judge. But that's always the case: the whole point of structural error is that we don't want judges -- appellate or otherwise -- deciding whether a jury would have found the same way as a judge, and also don't think that doing so is even possible. The whole point is that juries and judges are different. It may be harmless error, as in Sivongxxay and C.O., if the defendant was going to waive a jury trial right anyway, regardless of the error. But that's radically different than how the Court of Appeal finds harmless error here.

Now, I think I understand why the last paragraph goes astray on this point. For one thing, harmless error is a complex and multifaceted issue, and it's easy to get confused on precisely which of the various trial components constitute structural error or not. For another, there's a loose sentence in C.O. -- before the critical harmless error analysis I quote above -- that does indeed say that there's no reason to believe that a jury trial would have come out very different. To be honest, that sentence shouldn't have been in C.O. either, but regardless, it's not the holding, nor would reliance upon it be an accurate statement of the law. Still, I could see how someone might potentially get confused, and think that harmless error analysis in this context meant X (what would happen on the merits at a jury trial) when it actually means Y (what would happen vis-a-vis the defendant's choice of judge versus jury if there was no error).

But to reiterate: It definitely means Y. 

If you are deprived of your right to a jury, we don't say "Oh well, the result would have probably been the same anyway; it's not like the Sixth Amendment is a big deal or anything." And were the law to the contrary, pretty much every deprivation of the right to a jury trial would be harmless, since defendants can rarely (if ever) demonstrate that the result would have been different. We instead find harmless error only if you would have waived your jury trial right anyway. If so, it's harmless.

So I hope that the Court of Appeal deletes the last paragraph. Yes, it's technically dicta. But it's also doctrinally wrong, and I would hate for future opinions to rely on that paragraph -- or make the same mistake.

Matthews v. Ryan (Cal. Ct. App. - Jan. 28, 2026)

I agree with Justice Bendix that the appellant forfeited any objection to the way prospective jurors were seated in this matter. But particularly since what happened below appears to be the typical way the trial judge here seats jurors, it might have been worth adding something like the following line in the opinion:

"We emphasize, however, that it is not proper for the trial court to ask for 'volunteers' to sit on the jury rather than calling the prospective jurors by number. We reiterate that random selection of jurors is a firm and sound policy mandated by the Legislature. The clerk must randomly select the names of prospective jurors for voir dire. Trial courts should not utilize -- and parties should promptly object to -- any variation from this procedure."

Siam v. Superior Court (Cal. Ct. App. - Jan. 27, 2026)

The Ninth Circuit has been fairly silent recently; only one published opinion in the last six days.

Fortunately, the Court of Appeal is still busy cranking things out. (Though nothing yet today) 

I wanted to briefly mention this opinion from yesterday, because I definitely had conflicted opinions about it. The Court of Appeal grants the petition and orders the trial court to reconsider its refusal to grant mental heath diversion, and I understand and appreciate why it did so. At the same time, as I said, I'm torn.

On the one hand, the petitioner clearly has a mental health problem. That's the whole point of diversion; to try to get the underlying problem treated, rather than just throwing the person in jail.

On the other hand, those underlying mental health problems are clearly causing problems for society -- and particular victims -- as well. This was not a one-off event. Or, more accurately, it was a one-off event, and the petitioner got pretrial diversion for that, but that didn't solve the problem. So do we really want to keep granting pretrial diversion in such settings?

It's not a situation involving incredibly serious bodily harm, but nonetheless, people are getting injured. Here's his first offense, in San Diego, for which he received pretrial diversion:

"In the early morning hours of August 5, 2020, San Diego Harbor Police received a call from a taxi driver who reported a man who was his passenger, later identified as Siam, struck him three or four times in the back of the head with a skateboard and then fled by jumping out of the moving taxi. A little more than ten minutes later, police received a call from a hotel indicating a man matching the description given by the taxi driver was screaming and pressing the fire alarm in an elevator. When officers arrived at the hotel, they found Siam naked, laying on his stomach inside the elevator with his eyes closed and hands behind his back. He was “sweating profusely” and “yelling unintelligible phrases.” While being transported for medical evaluation, Siam spontaneously told the paramedic “he hit the cab driver in the head with his skateboard, jumped out of the moving vehicle, jumped off a bridge at the airport, and ran across the street.” He also said “he took off his clothes in the elevator because people told him to and that he had breathed in meth particles in the air.”

Here's his next offense -- the one at issue in the current appeal -- which transpired 19 months later:

"Around 9:20 a.m. on March 10, 2022, City of Newport Beach police received a phone call from employees of a car dealer who reported a man, later identified as Siam, entered their showroom, caused damage to a Rolls Royce, and then fled. When officers arrived on the scene, an employee explained Siam entered the showroom barefoot and said he wanted to buy a car with cash. He was fidgety and acting erratic. When asked which one he wanted to buy, Siam replied, “all of them.” He then asked if he could see inside a Rolls Royce parked in the showroom and became fixated on the hood ornament which appeared when the vehicle was unlocked. Siam proceeded to “rip[] it off the hood of the vehicle.” When asked why he did it, he made “a variety of statements that did not make any sense and stated that his father would pay for the damage[].” The employee was able to get back the hood ornament before Siam left. Officers were given video footage of the incident. 

About 40 minutes later, around 10 a.m., Newport Beach police received another call about an incident involving a man who was later identified as Siam. A 60-foot yacht had been stolen from a dock in Newport Beach harbor and witnesses observed the yacht crash into docks and other moored boats, do two large loops while going full speed in reverse, and then proceed forward toward a bridge. It ultimately crashed into a seawall and stopped in the middle of the channel. Officers who reached and boarded the yacht shortly thereafter found Siam near the helm and “acting very erratic.” They arrested him without incident. While being transported, Siam “spontaneously stated he had taken Xanax and had drank multiple alcoholic beverages.” . . .

One person was injured during the incident. Specifically, a woman was in the galley of her sailboat when it was hit by the stolen yacht. The side of the boat “crashed in on her[,] throwing her down to the deck” and causing her to contact various solid objects, including a stove. She was again knocked down when her boat’s mast collapsed. Later that day she sought treatment at a hospital for a concussion, contusions to the back of her head, and bruises on, and pain in, various parts of her body."

Thoughts?

Is this a case where, yeah, pretrial diversion still makes sense -- because, clearly, the guy continues to have mental health problems? Or is this a case where, regardless of those underlying conditions, the petitioner simply needs to be locked up to prevent future victims?

Tough call, at least for me.

In re Marriage of Starr (Cal. Ct. App. - Jan. 22, 2026)

I liked this opinion by Justice Goldman. Really well done.

It's a divorce case in which the wife says that the date of separation is 2012 but the husband says it's 2020. They're ready to go to trial on the separation date issue when the trial judge sua sponte notices that the wife's divorce petition alleges a separation date of 2020 as well, so holds this to be a judicial admission of the relevant date and enters judgment accordingly.

The Court of Appeal says: No dice. Which, in my view, is exactly the right result. We're not England in the 1700s. We prefer adjudication on the merits, not pleading errors. Both sides knew for years that the wife was claiming a 2012 separation date, and both sides were ready to dispute that issue at trial. No reason to hold the wife to an erroneous date in her pleading. (Justice Goldman gets there a slightly different way, but we end up in the same place.)

Plus, I think the Court of Appeal was right to not reassign the matter to a different judge on remand. I'm not extraordinarily pleased by what it seems like to me was the trial judge's penurious take on pleadings and the need to avoid a trial that everyone was completely ready for. But that doesn't establish bias or any reason for a new judge. Just try again.

On an entirely different note, as I read the opinion, I was struck -- and had a particular reaction -- to the wife's selection of counsel here. In 2020, she initially files for dissolution pro per. Then, in early 2021, she hires her first attorney, Fox & Bank, who substitutes in. The next year, in 2022, she decides to retain new counsel, Lisa Radcliffe. Only a month later, she hires yet new counsel. Then, the next year, 2023, she retains new counsel yet again. Can you guess what happens in 2024, as the case is about to go to trial? Yep. She retains new counsel again. Oh, and when she loses below, on appeal, it looks like she retains new counsel yet again.

When it's a divorce case and one of the spouses hires a new lawyer every single year, for a total of around a half dozen of them, I have a particular view of both the litigant as well as the underlying litigation. For whatever that's worth.

Oh, and I'm not sure what's up with the Court of Appeal only referring to the last three of the wife's lawyers by their initials -- "M.C.", "J.R." and "C.L." I'm sure they're not minors. I'm confident there's no allegation of sexual abuse by the attorneys or anything like that. And the opinion expressly mentions the full name of the other lawyers. I wonder what the deal is there? Seem strange.

Nonetheless: A well-written and persuasive opinion that seems to me to obtain an entirely just result. (Even if, on remand, I gently suspect that the losing party on appeal will probably end up prevailing on the merits.)

N.D. v. Superior Court (Cal. Ct. App. - Jan. 20, 2026)

The Court of Appeal sanctions Las Vegas attorney (and member of the California bar) T. Matthew Phillips $25,000 based upon a series of vociferous yet unsupported claims that he made in a petition for writ of mandate. That's a fair hunk of change. But that sanction, including its size, seem eminently warranted to me.

The Court of Appeal's opinion explains at some length the particular statements for which Mr. Phillips deserves sanctions, but the basic summary is this:

"We are particularly concerned with Phillips’s disregard of his duty to uphold the respect owed to the judiciary. It is one thing to assert in a petition that the trial court committed error. An attorney acts well within their duty as an advocate to raise good-faith arguments challenging rulings, even when it presents an uphill battle. There is nothing inherently improper about making allegations of bias or discrimination against a trial court. . . .

But what attorneys cannot do is what Phillips did here: make serious accusations of impropriety against the court without a scintilla of supporting evidence. Phillips did not simply argue the trial court was wrong. He accused the trial court of being an active participant in a conspiracy with opposing counsel to intentionally deprive N.D. of her rights."

I was even more convinced that the Court of Appeal's sanctions against Mr. Phillips were justified when I did a little digging and found this Order, in which the Nevada judiciary declared Mr. Phillips to be a vexatious litigant and described -- in 46 pages, no less -- the wide variety of his repeated misconduct that led to that Order.

Even without knowing about that prior Order, which was issued last year (from a different jurisdiction), at the end of its opinion, the California Court of Appeal refers the matter to the California bar. Entirely appropriately.

Let's hope the bar does something. Quickly.

Towns v. Hyundai Motor Co. (Cal. Ct. App. - Jan. 20, 2026)

Today the 2/4 proves that time travel is indeed possible:

"THE COURT:* 

It is ordered that the opinion filed herein on December 22, 2025, be modified as follows: 

1. On page 17, footnote 5, change the date of May 30, 2023, to May 30, 2018. 

2. On page 17, footnote 5, change the date of April 11, 2023, to April 11, 2018. 

3. On page 17, footnote 5, change the date of May 30, 2023, to May 30, 2018. 

There is no change in the judgment."

Microsoft v. Superior Court (Cal. Ct. App. - Jan. 14, 2026)

I'm conflicted on who I would have wanted to win in this one. All I know is that there are definitely big names involved.

It's technically Microsoft -- a big name, for sure -- versus the Superior Court. But the real party in interest in the City of Los Angeles, another big name. The LAPD (no small organization itself) gets a warrant to search the electronic data of an alleged rape suspect. But that electronic data is held by USC -- no small fish either -- since the alleged suspect is a graduate student there. The warrant tells Microsoft that it's not allowed to tell even USC that the data is being searched, even though USC is a "friendly" entity and may itself have reason to investigate the alleged assault.

So Microsoft objects to the nondisclosure order, and when it loses in the trial court, files a writ.

The LAPD is represented by the City Attorney. Microsoft is represented by Davis Wright Tremaine, a First Amendment powerhouse. They sign up two amici to submit briefs, represented by Orrick, Herrington & Sutcliffe on the one hand and Perkins Coie on the other -- no slouches in their own right.

In the end, Los Angeles wins, and the NDO is upheld, in an opinion by Justice Tamzarian.

An important case, with important people on both sides.

People v. McCowan (Cal. Ct. App. - Jan. 13, 2026)

The police conduct a traffic stop, find an illegal weapon, and arrest the driver. The driver asserts that the stop was pretextual, and the officer testifies and is then cross-examined by counsel for the defendant.

I'm not certain whether the defendant's counsel was constitutionally ineffective in arguing the motion to suppress, and neither is the Court of Appeal, which holds that the more appropriate route is for this issue to be raised on habeas rather than on direct appeal.

Regardless of those merits, I thought that it was cold -- albeit perhaps appropriate -- for the trial court to say while denying the motion to suppress "that if defense counsel had 'simply refrained from cross-examining I would have granted your motion, because I regard the littering as pretextual, as a basis for a traffic stop, and the prosecution did not bring out either that there were other vehicles on the road, which is important to whether it is illegal to fail to use your turn signals, or, for that matter, consent to the vehicle search. However, those were brought out by the defense.'"

Ouch.

Not really what you want to hear. As either the defendant or his lawyer.

Mendocino Railway v. Meyer (Cal. Ct. App. - Jan. 7, 2026)

Here's the lingo that my teenage children would likely employ after reading this opinion:

Sus.

It's not that the Mendocino Railway isn't an actual railway. It is. It's got train tracks and a locomotive, after all.

But it want to seize some private property via eminent domain. Property belonging to someone else.

Now, apparently, you can do that if you're a common carrier. That itself seems super dubious to me, honestly. I would have thought that you'd have to get permission of the relevant governmental body first. But here in California, at least, if you're a legitimate railroad that carries people and freight or stuff, you can just grab anyone else's property if you want, as long as it's part of your legitimate business.

Okay. I'm not really down for that, if truth be told. But apparently that's the rule.

So the Mendocino Railway has to prove that it's a common carrier. Which, as a purely legal matter, it's totally not -- and the trial court so held -- since it doesn't even own the railway, which actually belongs to some subsidiaries or affiliate companies.

No matter, says the Court of Appeal. That's good enough.

Okay, I guess. But even those subsidiaries still have to be common carriers, which means it's open to the public for passengers and freight and stuff and to which "the public has a legal right to [] use, which cannot be gainsaid, or denied, or withdrawn at the pleasure of the owner." But the railway here doesn't really do that. It's not connected to anything else: the tracks exist, but Mendocino hasn't bothered to maintain that connection. And the relevant railway tunnel has also collapsed, and Mendocino doesn't feel like fixing it.

So what does the railway actually do? I looked it up. This. The company has an old-timey steam locomotive that tourists ride around in. Choo-choo and stuff. Where are they going? Nowhere, really. Except maybe to this bar that the "railway" owns in the middle of nowhere. You know. Tourist stuff.

So does that really make the railway a common carrier? Well, it says it also transports actual people. And, theoretically, yeah, it does. Look at this -- something that's not mentioned in the opinion. The company only carries "regular people" if you're one of the 50 or so specific people identified by name on its tariff who live in the area. And those alleged "train ticket" prices are absurdly high anyway. Which is perhaps why, as far as I can tell from the opinion, anyway, no one uses the train for actual transportation.

But what about freight? Doesn't anyone use it for freight? Not really -- though a couple of places wrote letters and said they "might" use it for freight in the future. You'll perhaps get a keen sense for how critical the freight usage of this train is from the last page of the company's freight tariff, which says: "Locomotives and freight equipment can be rented subject to FREIGT TARIFF CWR 9500" (Yes, that's how they actually spell 'freight") Oh, and the company says that if you want to actually use these sorts of passenger or freight services, here is how you should reach them: "Inquiries . . . should be directed to Info@SkunkTrian.com." They don't even spell "train" correctly.

But at least they want to take other people's property for a good reason, right -- in legalese, for an actual "public purpose". The company says that it needs the 20 acres to build "storage yards, maintenance, and repair shops, transload facilities, rail car storage capacity, and a passenger depot." But the internal plans that they actual drew up show the property instead being used . . . as a campground, pool, and parking lot for recreational vehicles. "Oh," says the company. "That was a rogue employee. Those aren't really our plans." Yeah. Right.

I completely understand why the trial court held what it held. As an outside observer, at least, there's just nothing about this whole seizure -- or process -- that sounds kosher.

But the Court of Appeal reverses. The company gets to seize someone else's property: the 20 acres right next to their residential home, no less.

Sus.

P.S. - Also, this may not be Justice Langhorne Wilson's fault, but on page 4 of the opinion, the correct spelling is actually "Amtrak," not "Amtrack".

Chong v. Mardirossian Akaragian LLP (Cal. Ct. App. - Jan. 8, 2026)

I agree with the overwhelming majority of what Justice Hoffstadt says here. Indeed, at least facially, I'm stunned that the plaintiff got as much as he did -- and certainly don't think he has much to complain about vis-a-vis his lawyer.

It's a legal malpractice claim involving an underlying personal injury case. The plaintiff is unhappy with the settlement amount negotiated by his lawyer. The injuries were substantial, but so was the settlement: over $6 million.

That's a chunk of change for an auto accident, no?

That was particularly my perspective here given the underlying facts. Yes, the plaintiff was rear ended. That's usually a pretty good case for liability. Usually.

But here, for one thing, plaintiff was under the influence of amphetamines and benzodiazepines at the time of the accident. That's not an especially great look. Particularly when that resulted in the plaintiff electing to stop his Porche 911 on the 134 Freeway in Burbank at 4:20 a.m. That might rightly be viewed as a fair amount of contributory negligence, right?

But at least when plaintiff "put the car in park, locked the doors, took off his shoes, reclined his seat, pulled the key out of the ignition, took off his seat belt, and fell asleep," he did so in a safe place on the 134 Freeway, right? A rest area or someplace like that?

Uh, no. He put his car into park and decided to fall asleep in the fast lane of the 134 Freeway.

No wonder he got rear ended, right?

Given these facts, I think a $6 million-plus settlement was fantastic. Indeed, I'm fairly stunned that our system works that way. Were I on the jury, most likely, I would have given the plaintiff far, far less than what he ultimately obtained.

Nonetheless, he still sues his lawyer. Claiming that the settlement was unauthorized.

The Court of Appeal nonetheless affirms the grant of summary judgment to the defendant law firm because the plaintiff ultimately retroactively agreed to the settlement. Holding that this retroactive agreement negates the legal malpractice claim for an unauthorized settlement.

There's a lot to be said for that result. As I said, I'm pretty much on board for Justice Hoffstadt's opinion. As well as not particularly inclined to think that the law firm's $6 million settlement was anywhere near too low.

My only marginal thought the other way involves the Court of Appeal's discussion of what counts as economic duress in this setting.

The law is that you're precluded from complaining about a settlement if you retroactively approve it, but not if your retroactive approval was under duress (which is what plaintiff here asserts). The Court of Appeal explains lots of good reasons why the plaintiff here wasn't under duress, and I generally agree.

But I wonder if there isn't a different, more general, type of "economic loss" at issue here -- one that, if argued, might argue for a different result.

Once plaintiff repudiated the settlement as unauthorized, the defendant promptly moved to enforce the settlement, since (after all) it was made with the plaintiff's agent. So there's a pending motion in that regard, and the defendant wants to interpose the facially valid settlement as an affirmative defense at trial.

As a result, at that point, to me, the plaintiff's not really facing the kind of pure unvarnished "should I accept the settlement or not" choice that the Court of Appeal perceives it to be. Instead, the question is really "Is it really worth continuing to fight this case given the new affirmative defense and motion to enforce the settlement?" That's different.

At a minimum, it's going to cost the plaintiff some time and money to fight the motion to enforce the settlement. That's a downside. In one world, that might well constitute sufficient "economic loss" to justify the duress rule. Maybe the plaintiff would ordinarily have decided to take his chances at trial, but the material difference now is that he doesn't want to spend that additional six months fighting just to potentially have a trier of fact moot out the fight by holding that the settlement agreement is enforceable.

In short, there's at least a duress component now that didn't exist before. A component that's not discussed in Justice Hoffstadt's opinion, but that might well make a difference either here and/or in other cases.

Or at least that's my take.

U.S. v. Ruiz (9th Cir. - Jan. 7, 2026)

This is a bit scary.

Not because of the actual holding of the case, which involves whether the government can introduce a particular prior criminal conviction for smuggling undocumented aliens in order to help prove that he knew that the current aliens that he was (allegedly) smuggling were indeed undocumented. That's an issue that's important, of course, but that's not especially practically significant to most readers.

Rather, what struck me as surprising -- and troubling -- was a random, seemingly innocuous comment in the "background" section of today's Ninth Circuit opinion. Here's the first paragraph of that section:

"On June 10, 2023, Border Patrol Agents Ordoñez-Nuñez and Guzman were driving in separate unmarked vehicles along State Route (SR) 94 around Campo, California, less than two miles from the United States-Mexico border. The agents noticed an older, white Honda Civic driving ten miles below the speed limit and weaving “in and out of lanes” along the highway. Agent Ordoñez-Nuñez grew suspicious of the vehicle because the driver and passenger kept looking at him through the window and side mirror, and the car was “sitting very low on the rear axle” as if it carried extra weight in the back seat or trunk. After following the Civic for 15– 20 minutes, Agent Ordoñez-Nuñez ran a records check on it—the search included the vehicle’s travel patterns, whether it had gone through any immigration checkpoints, and where it was registered. He learned the car was registered in La Mesa, over fifty miles away, and had no history of traveling in the area or through any checkpoints. Based on these results, the agent 'requested for a marked Border Patrol unit to initiate a vehicle stop.'"

I live in San Diego, which is fairly close to Campo. Here's the part that surprised me:

" Agent Ordoñez-Nuñez ran a records check on it—the search included the vehicle’s travel patterns . . . . He learned the car . . . had no history of traveling in the area . . . ."

I knew, of course, that there are license plate readers pretty much everywhere these days. But what I did not know -- until today -- is that the police can access your travel records pretty much instantly, while in their vehicle and just by running your plates. I had thought -- wrongly -- that it at least took more effort than that. Something like an actual criminal investigation, or something like that.

Apparently not.

Doe v. California Ass'n of Directors (Cal. Ct. App. - Dec. 31, 2026)

One of the things I somewhat like about published California Court of Appeal opinions is that they don't list the author until the very end. That way, if you read the thing in order (as I typically do), the entire time, you've got to guess at who's writing the thing. 

Sometimes that's easy, since some justices have very unique writing styles. But most of the time -- at least if you don't take a peek at which division the case comes from (which I usually don't) -- you simply read the opinion on its merits, and don't discover until the end whether it's written by a justice about whom you have a particular opinion.

I say all this as an introduction to this opinion. Which, appropriately enough, was the last published Court of Appeal opinion in 2025.

It's very smart. Very well written. It's an appeal of an anti-SLAPP motion filed in response to a lawsuit for defamation and breach of contract that was filed by a "motivational speaker to intermediate and high school students" whom the defendant stopped promoting as a speaker after "a member of a church youth group . . . accused him of engaging in an inappropriate sexual relationship with a 17-year-old student in the group." The trial court denied the motion, and the Court of Appeal reverses in part.

When I finished reading the opinion, I saw that its author was Justice Bromberg. Which made sense to me, since I almost always find his opinions both persuasive and smartly written. (With full disclosure that I worked alongside Justice Bromberg for a brief period when he was in private practice.) So this was just another data point in that regard -- and an unbiased one, since I came to that conclusion even before I discovered that he was the author.

All that said, as I read the opinion, I did have two somewhat orthogonal thoughts about it that I thought might be worth sharing.

First, I found it interesting that the Court of Appeal allowed "John Doe" to participate anonymously. I assume that the trial court allowed Doe to file his lawsuit anonymously, and that no party apparently objected to anonymous participation on appeal. But (1) I think that the Court of Appeal has (or at least should have) an independent obligation to decide whether anonymity is appropriate, and (2) I'm not at all confident that anonymity is appropriate here.

Doe decided to file a lawsuit. Those lawsuits are presumptively public. For good reason. Moreover, as many California courts have noted, “the right to access court proceedings necessarily includes the right to know the identity of the parties.” So to hide your name from the public as part of your lawsuit, there's got to be a very good reason. You're a minor. You're a victim of sexual assault. You genuinely fear violence in response. Something like that.

The "John Doe" here doesn't seem to me to have any of that. He's someone who's accused of having an inappropriate relationship with a minor. He's the alleged perpetrator, not the victim. I understand that he might well not want his name out there in that regard. But the same is true for virtually every single criminal defendant -- as well as the vast majority of civil defendants (alongside many plaintiffs). We generally don't think that reputational harm is sufficient. At all.

Just six weeks ago, Justice Richardson published a lengthy opinion that explored at length the issue of when litigants should be permitted to litigate anonymously, and was persuasively critical of the practice. The desire for anonymity was even greater in that case than it is in this one, and yet the Court of Appeal refused to allow anonymous participation. This seemed to me a topic that Justice Bromberg might well have wanted to at least address in his opinion.

It's perhaps understandable that the Court of Appeal here simply went along with anonymity since none of the parties objected to it. But it'll often be the case that both parties desire anonymity, even when it is unwarranted. The plaintiff understandably doesn't want to publicize the scandalous accusations against him. And the defendant might have similar interests, since it might well fear lawsuits (or other negative reactions) to publicizing the name of someone who allegedly led a church group and engaged in sexual misconduct with minors. So we can't necessarily rely on the parties (or trial court) to accurately decide whether anonymity is warranted. I think there's a sua sponte obligation in this regard in the Court of Appeal as well.

I also thought that the decision to allow Doe to participate in an appeal anonymously was especially troubling given some of the things that the Court of Appeal expressly found in its opinion. Here's how Justice Bromberg described the underlying facts:

"[T]he independent investigator hired by CADA uncovered persuasive evidence of misconduct by Doe. As the investigation showed, Doe’s own books admitted that he had been a pastor at a church more than two decades ago, that he had an affair, and that his wife left him as result—facts that the witnesses interviewed confirmed. In addition, the four witnesses interviewed provided a consistent, and credible, account of Doe’s misconduct. All four told the interviewer that in the 1990s Doe had used another name and that he had been a church youth group leader. Three said that Doe’s affair with a student was widely known, and a slightly different set of three said that, after Doe resigned from the church, the student went to stay with Doe in Hawaii for two weeks. Two witnesses said that Doe’s wife, who apparently had met him while she was a student and he a teacher, left him because of the affair, and Doe’s successor as youth group leader said that Doe renounced his ordination rather than submit to a redemption process that included an investigation. And one witness said that, several years ago, he was asked to book Doe as a speaker, but told his principal that they should not because Doe had been 'in a statutory rape relationship' and 'can’t be around our students.'"

Not only are those fairly egregious (alleged) facts, but the Court of Appeal's own opinion on the anti-SLAPP motion held -- persuasively -- that there was a substantial public interest in the dissemination of those allegations by defendant. To quote Justice Bromberg (with emphasis added):  "As Doe regularly spoke to students at schools, camps, and conferences, and claimed to have engaged in thousands of intimate conversations with teens, it is a matter of public interest whether Doe previously engaged in improper sexual relations with a minor. . . . Doe regularly spoke to intermediate and high school students, he claimed to regularly conduct one-on-one interviews with students, and his website included language that may be considered to involve grooming or be predatory. As a consequence, Doe still presents a sufficient potential danger to students to create a public interest in his previous misconduct."

If Doe indeed "still presents a sufficient potential danger to students" given his current activities, it's hard to see why it advances the public interest to keep his identity secret, much less why his private interest in this regard outweighs the strong presumption against public access.

Long story short: I thought that the Court of Appeal might well seriously consider not keeping Doe's name confidential in this appeal.

One other, final, tiny point as well.

Doe had been accused of "grooming and statutorily raping [a] 17-year-old student," and on appeal, Doe criticized the independent investigator hired by defendant for failing to interview this alleged victim. As brief background, the Court of Appeal explained that the interim head of the youth group had told the investigator that "Doe’s relationship with the 17-year-old student was not a secret among the students, and he confirmed that, after resigning, Doe spent two weeks with the student in Hawaii at a property that parishioners allowed the church to use." The Court of Appeal explained that, given these facts, it was "not surprising" that the investigator didn't interview the minor, and I mostly agree with that. I'm not sure how it advances the ball to potentially traumatize an alleged minor victim by going over the events surrounding the alleged "grooming and statutory rap[e]" of that minor given the evidence that already existed about these events. So on this score, yes, I agree.

That's also particularly true here because the parents of the minor here apparently had precisely the same reaction. Justice Bromberg notes early in the opinion that after the discovery of the events at issue and the conclusion of the investigation, "at the request of the student’s family, the church did not report Doe to law enforcement." Okay. The parents quite understandably wanted to protect their child. That's their job. That was their call. Maybe it was right; maybe it was wrong. People could well disagree about the wisdom of that approach. It is what it is.

But what struck me about this issue is the language that Justice Bromberg uses on page 23 of his opinion, where he says: "Moreover, in light of the evidence that the family of the student with whom Doe had an affair sought to cover up the affair, it is not surprising that the investigator did not interview the student." I would not have used the words "cover up." I found that phrase inappropriate. I don't think that a refusal to report someone to the police constitutes covering up a crime. Particularly when that crime directly involves your minor child.

I know of plenty of crimes. I'm not obligated to report any of them. While I can't destroy evidence, in my eyes, it's not anything approaching a "cover up" to want to protect my child, or to not want them to have to recount the details of their (alleged) victimization again and again. That's a parental call, and to use the pejorative term "cover up" for that decision seemed both unnecessary and inapt.

I would replace those two words with something like "not further recount the details." It means the same thing. Without the starkly negative implications.

Baird v. Bonta (9th Cir. - Jan. 2, 206)

I'll begin the new year with a prediction:

This opinion will be taken en banc.

The majority opinion strikes down California's open-carry licensing scheme for firearms. That regime allows individuals to carry concealed weapons, but doesn't allow individuals to publicly carry firearms in urban counties (i.e., counties with populations over 200,000). Judges VanDyke and Lee -- a dream panel for plaintiffs in a firearms case -- hold that these provisions violate the Second Amendment.

Judge Randy Smith dissents. 

It tells you something, I think, when even a Republican appointee from Idaho doesn't agree with the conservative Second Amendment view adopted by his colleagues.

I'm not saying that the en banc court will necessarily reverse. There are many en banc panel draws that might end up agreeing with today's panel opinion. (Though I suspect that most of them would, in fact, go the other way.)

But I would put a lot of money on the case getting a majority vote for en banc review.