Bobo v. Superior Court (Cal. Ct. App. - April 22, 2026)

Justice Buchanan's opinion seems entirely persuasive. A trial court can't just categorically deny pretrial diversion because someone died, or because the family of the victim opposes it. You've got to analyze all of the relevant factors. So the Court of Appeal here reverses and remands to allow the trial court to assess things properly.

Yep. Sounds exactly right.

I nonetheless wanted to ask the question: Would you grant pretrial diversion here if you were the judge?

Here's a brief summary of the underlying facts, which are essentially undisputed:

"On the evening of November 11, 2024, Bobo was driving a Ford F-450 truck southbound on Kearny Villa Road approaching the signal-controlled intersection with an off-ramp from Route 163. A few seconds after Bobo’s light turned red, she went through the intersection. Bobo’s vehicle struck the driver’s side of a Toyota Highlander that was turning left on a green light from the off-ramp onto northbound Kearny Villa Road. The speed limit on Kearny Villa Road at the intersection was 50 miles per hour. Bobo and other witnesses later estimated she was going 55 to 60 miles per hour, but one witness estimated she was traveling up to 80 miles per hour. The impact from the collision killed Donato, the driver of the Toyota. Bobo’s truck struck a light pole and stopped.

Bobo appeared to be in shock at the scene. She told law enforcement she thought she had the green light but seemed unsure. Police saw no signs of intoxication. Bobo was 50 years old and had never been arrested or charged with a criminal offense.

Bobo was charged with misdemeanor vehicular manslaughter. (Pen. Code, § 192, subd. (c)(2).) She was arraigned in May 2025 and released on her own recognizance with an order not to drive. 

Before trial, Bobo filed an “invitation” for the court to grant misdemeanor diversion under section 1001.95, with multiple supporting character references and attached family photos. She argued she was eligible for diversion because the charged crime was not one of the specifically excluded offenses. Her diversion request provided a lengthy background of her upbringing as an adopted child in San Diego, education, employment history, community ties, relationship with her adoptive parents, history as a single mother, relationship with her daughter and grandson, and service as a caretaker for 19 years after her mother was diagnosed with cancer.

The supporting character references described Bobo as a kind, caring, selfless, honest, generous, reliable, and compassionate person. One long-time friend reported that after the accident, Bobo called her “devastated and sobbing that she couldn’t live with herself.” According to the friend, the accident “weighed heavily” on Bobo, she sought counseling, and she “has never stopped grieving that moment.” Another friend similarly reported that the accident “ha[d] deeply affected [Bobo], as she is someone who would never intentionally hurt anyone.”

Bobo requested diversion for a period of 18 months on the following conditions: (1) she complete an in-person traffic course; (2) she complete 150 hours of volunteer service; (3) she write a letter to the victim’s family; (4) payment of restitution be reserved; (5) she remain law-abiding and “not pick up any new criminal cases”; and (6) any other terms the court deemed appropriate. . . .

The People submitted letters from two of Donato’s family members describing the devastating impact of her death, opposing Bobo’s request for diversion, and expressing the view that Bobo should not be able to get away with only community service. The letters described Donato as a 66-year-old grandmother and mother of two adult children, including a son with autism who experienced deep confusion and pain from her death. Donato immigrated from the Philippines and was the anchor of her family. She and her husband lived frugally, but she supported extended family members financially and emotionally, including putting some through college. She was active in her local church and community, compassionate, and generous to others. She was deeply loved and her family suffered tremendously from her death."

Diversion basically means that if the defendant does everything she's supposed to do within the relevant period (here, two years), the case essentially goes away.

Powerful equities on both sides.

So what would you do?

P.S. - The Court of Appeal's caption lists the second attorney for the San Diego City Attorney's Office as counsel on appeal as Paige E. Folkman, but from what I can tell, she went inactive shortly after the petition was filed.

Martinez v. Sierra Lifestar (Cal. Ct. App. - April 21, 2026)

Great opinion by Justice Franson.

I might have not added this to the actual opinion, but in all honesty, here's what I was be thinking in my head as I got to the end of the thing

"Finally, we wish to add one personal note to the defendant in this case, Sierra Lifestar, Inc:

For the love of God, would you please just pay these people what they're owed?

They're paramedics and emergency medical technicians, for the most part. You pay them minimum wage. I'll repeat that one more time: Minimum wage. Yes, you give them the occasional bonus. Like $100 every year for National Emergency Medical Services Week. That's great of you, and I'm sure they appreciate it, and hopefully things like that boost morale (and thus productivity) at your company.

But as you basically admit, you don't take those bonuses into account when you're paying them overtime and the like. Which every one of them gets. As a result, you pay them the princely sum of $22.50/hour for over-40 hours of work ($15 multiplied by time and a half), instead of the slightly higher figure to which they'd be entitled if you included the "bonus" in their time and a half calculation.

There are 135 people in the class. 135. That's not a huge class action. The class is collectively seeking, soaking wet, $462,450 in additional payments.

Again: Would you simply just pay these employees what they're owed?

Yes, I know. You successfully convinced the trial court not to certify the class, on the grounds that the 135 employees occasionally received 'different types' of bonuses. But the Court of Appeal has, thankfully, now reversed that decision, and sent it back down. So you're still potentially facing a class action.

But more importantly, if you owe the people, just pay them. I'm sure you've spent tens, if not hundreds, of thousands on lawyers already. You'll spend tens or hundreds of thousands more. And it's 135 people, and at least thus far, your principal way of trying to get out of the suit has been to try to take advantage of the fact that 134 of these people haven't yet gotten it together to get a lawyer to seek what they're owed.

These are minimum wage workers. Minimum wage emergency medical workers, for the most part.

Is it really so absurd to ask you to simply count their $100/year bonus as part of their time-and-a-half calculation, so instead of getting $100, they essentially get the break-the-bank sum of $150/year? Particularly if, in fact, that's what's affirmatively required by California law.

In short: Settle this thing. Now. Seriously."

I get why Justice Franson doesn't say that. (Or anything like it.)

But that was my definite personal feeling on this one.

One last thing. Don't forget to run that final proofread for the "!" marks in the opinion before you put it in final and send it out for publication. I say that in reference to the "!(CT 241:17-242:5)!" that appears at the top of page 5.

 Otherwise: Love it.

People v. Bertsch & Hronis (Cal. Supreme Ct. - April 20, 2026)

Two people are convicted of kidnapping, raping and killing Linda Canady. Both are sentenced to death.

The California Supreme Court unanimously affirms the conviction and death sentence of Bertsch, but reverses the death sentence of Hronis. So even though they did the same thing -- no one's sure which one  of them actually killed Ms. Canady (and it might well have been both of them), one allegedly ends up with a life sentence and the other is executed.

The California Supreme Court holds that Hronis gets relief because his alleged incompetency was not adequately addressed at the penalty phase. Hronis said that God told him that God would save him from an adverse verdict. When that didn't happen, and he was convicted, Hronis didn't want to put on a defense at the penalty phase, telling the judge that "he would prefer to send the jury home, save the state some money, be first in line to receive the death penalty, and “be with Jesus” rather than “rotting” in prison waiting for an appeal. He repeated: “If I can’t be free on the streets, I want to be free with Jesus. That’s exactly how I feel.”" The trial court "noted for the record that Hronis was “soft spoken, deliberate, and composed.”" By contrast, Bertsch didn't have the same issues, so his death sentence is affirmed.

As usual, it's not like either Bertsch or Hronis is actually going to be executed, regardless of today's decision. Which is why I said that only one of these two killers "allegedly" ends up getting executed. There's a death penalty moratorium in California, and that's not going to change anytime soon. Moreover, Ms. Canady was murdered in 1985 -- over four decades ago. Bertsch is now 68 years old, and Hronis is 67. Both of these senior citizens are dying in prison regardless.

Nonetheless, for all its practical worth (or lack thereof), here's a 200-plus page opinion on the subject. 

Panelli v. Target Corp. (9th Cir. - April 17, 2026)

Here's a gorgeous opinion by Judge de Alba. Short, sweet and spot on.

Target sells bedsheets that say that they're "100% cotton" and have a "800 Thread Count." Plaintiff files suit, claiming that's not true; that expert lab testing reveals that the thread count is actually only 288, not 800. Plus, he says, it's actually impossible to be 800 count if it's really 100% cotton.

But the district court (Judge Huff, down here in San Diego) dismisses the case on the pleadings, saying that if something's impossible, then as a matter of law, a reasonable consumer wouldn't be deceived by it.

The Ninth Circuit reverses. Rightfully so.

It's one thing to say something that everyone knows must be puffery and untrue. Things like "Drinking Red Bull takes you to the moon!" (I just made that up.) No one's going to think that what you're saying is meant to be true.

That common sense principle, by contrast, is utterly inapplicable here. A reasonable person who reads on a label that the bedsheets are 100% cotton and 800 count will definitely think those statements are intended to be true, and are accurate. And I say that because, among other things, I'm precisely such a reasonable consumer (IMHO), and that's exactly what I'd think.

Maybe there's some super-smart expert in cotton and thread count out there who already knows that you can't thread pure cotton at 800 threads per square inch. But that's not normal. Normal consumers (like me and, probably, you) don't know that. Or at least didn't know that until today.

So good job by Judge de Alba reversing the dismissal. In an extremely persuasive and well-written opinion, no less.

People v. Harzan (Cal. Ct. App. - April 16, 2026)

Twice in one week.

First it was on Monday, and today, in an entirely different published opinion, we see it again.

The common reality in both cases, which you see again and again and again in these cases:

If someone texts you saying she's 13 and willing to have sex with you, it's a cop.

People v. Superior Court/Austin (Cal. Ct. App. - April 16, 2026)

Defendant files a Racial Justice Act claim alleging that the Riverside District Attorney disproportionately seeks the death penalty against Black defendants than White defendants. The judge assigned to the case was former ADA with the Riverside DA's office. She didn't participate in the existing prosecution, and was not the responsible district attorney in any of the 28 cases that the defendant is comparing to his for RJA purposes. She was, however, at staff meetings in which the decision to seek the death penalty was discussed, so arguably has some personal knowledge of why that penalty might have been sought in any of those particular cases.

As a result, there's a challenge for cause seeking her recusal. The presiding judge denies the challenge, but the Court of Appeal reverses. "Here, Judge Shouka made recommendations as to filing charges in homicide cases during the relevant period of time involved in the RJA motion, and was present at staffing meetings where decisions were made in other cases as to the charges to be filed. While we do not find that Judge Shouka was actually biased in this case, a person aware of these facts might reasonably entertain a doubt as to whether Judge Shouka could be impartial in determining if the DAO had a pattern of institutional bias, explicit bias, or historical and systematic bias in filing homicide charges, when she was personally involved in these decisions while at the DAO."

You can see the argument, right?

Here's the interesting thing, though. Albeit a twist nowhere discussed in the Court of Appeal's opinion.

The party seeking recusal here isn't the defendant. It's the Riverside DA's office.

In other words, the Riverside DA's office is worried that the judge at issue might have personal knowledge of how death penalty decisions are, in fact, made in that office; in particular, whether they are based upon racial or other illegal grounds. That's information that the DA's office does not want considered.

It would be fairly routine for a defendant to not want a former DA who's now a judge deciding if that DA's office was racist in its charging decisions. That's what you might expect.

It's a bit different when the DA's office itself doesn't want a former DA in that office expressing judgment on that issue.

Interesting twist, eh?

Walton v. Victor Valley CCD (Cal. Ct. App. - April 15, 2026)

Are some state court judges really granting summary judgment motions because the attorney's declaration (that attaches deposition transcripts, etc.) left out the "under penalty of perjury" part, thereby justifying its wholesale exclusion? And making that ruling even though the attorney's there and more than willing to correct the mistake right at the hearing?

Apparently so.

Good job by the Court of Appeal publishing this opinion to make clear that's not okay.

Zand v. Sukumar (Cal. Ct. App. - April 14, 2026)

It's bad. Then it gets worse. Then worse. Then even worse.

Check out this opinion this afternoon from Justice Streeter. You can read the whole thing if you'd like, but the first three paragraphs are more than sufficient alone to give you an idea of what follows:

"Afshin Zand, representing himself, appeals from an order awarding attorney’s fees against him under Code of Civil Procedure section 425.16, subdivision (c)(1) (all further undesignated code references are to the Code of Civil Procedure).

In a prior appeal, we affirmed an order dismissing Zand’s cross-complaint in an action filed by Ponani Sukumar and awarding Sukumar the attorney’s fees he incurred to obtain the dismissal. (See Zand v. Sukumar (Feb. 29, 2024, A163376) [nonpub. opn.] (Zand I).) Our opinion awarded Sukumar additional attorney’s fees incurred on appeal, with the amount to be determined on remand.

In this second appeal, we affirm again, seeing no merit to Zand’s arguments attacking the attorney’s fees order entered on remand. We reject each of Zand’s assertions of error as baseless and again order him to pay Sukumar’s attorney’s fees, this time for the present appeal. We also impose sanctions for the pursuit of a frivolous appeal."

(Though I'll add that, if that's all you read, you'll miss out on some true nuggets. Like this one: "Zand’s arguments are all aggressively creative but not one of them has a shred of merit." Or this one: "Continuing this pattern of making arguments that eventually resulted in terminating sanctions below, Zand still refuses to get the message.")

I might well end this post by simply reminding everyone that, sometimes, it's better to simply quit while you're behind. But Justice Streeter makes this point even more explicitly -- and concretely -- in the final footnote of his opinion, which reads:

"One final point—a comment on relief we are not ordering, at least for now—is also worthy of mention by way of forewarning. In his motion for sanctions, Sukumar asks this court to declare Zand a vexatious litigant and enter a prefiling order against him under section 391.7. . . . Sukumar’s section 391.7 request is arguably warranted, but we decline at this time to declare Zand a vexatious litigant or enter a prefiling order. We do advise Zand, however, that, given the baselessness of the arguments and motions he has made in the prior appeal (A163376) and again in the present appeal, we would seriously consider the vexatious litigant question if he were to appear again in this court presenting similar arguments. He should take note that, while he has avoided such a finding for now, he is on the cusp of our deciding to enter one."

In short: Cut it out. Now.

U.S. v. Williams (9th Cir. - April 13, 2026)

An ICE agent trying to have sex with an undercover cop pretending to be a 13 year old prostitute.

Classic.

Y.P. v. Wells Fargo (Cal. Ct. App. - April 9, 2026)

I was going to mention this opinion today simply as a reminder of a very common check scam. One to which, sadly, a nontrivial number of lawyers have fallen victim, including but not limited to the plaintiff here.

I will, in fact, make that reminder. Because it's important. Don't fall for this:

"On an unspecified date, Y.P. [a sole practitioner] received “what appeared to be a legitimate debt payment cashier’s check in the amount of $99,700.00” from a “purported client.” The check was “purportedly issued by Falls City National Bank” and “written on behalf of ‘Fastenal, Inc.’ ” The check “ostensibly represented what [Y.P.] believed to be partial payment of a debt obtained as part of a legal matter being handled by [Y.P.] on behalf of [the] purported client.”

On Friday, March 18, 2022, Y.P. deposited the check into the IOLTA account.1 On Monday, March 21, 2022, the client directed Y.P. to wire transfer $89,730 “as soon as the funds from the Check cleared” and to retain $9,970 as the legal fees for his services."

Needless to say, the "cashier's check" was fraudulent, the whole thing was a scam, the bank reversed the deposit after the wire went out, and the lawyer lost the entire amount of the $89,730 wire. (My children would now insert a sad face emoji here, but we're far too old for that.

To reiterate: Don't wire money out for an "excess" deposit. Do. Not. Do. It.

But as I read further in the opinion, I also wanted to mention the doctrinal merits. The trial court dismissed the lawyer's lawsuit against the bank on the pleadings, and after reading the first couple of paragraphs of the opinion, I assumed that the Court of Appeal would affirm. And, indeed, it largely does so.

But not entirely.

The lawyer-plaintiff here added one critical set of facts. Plaintiff alleges that he called the bank and was expressly told by a bank employee that the certified check "had cleared" (when, of course, it had not), and that he then went to the bank, told that same employee that he was super suspicious about the check, but that same employee again reiterated that the check had cleared and plaintiff was thus "good to go" to send the wire.

The Court of Appeal says, essentially: "Well, your other causes of action are meritless, but yeah, if the bank employee did indeed say those things, that would indeed count as a negligent misrepresentation." So that part of the lawsuit -- and only that part -- survives.

Now, between you and me, the lawyer here is presumably well trained in the law, and a well trained lawyer might perhaps realize that his lawsuit against the bank for getting scammed might not one that regularly goes so well, and hence that lawyer might perhaps be inclined to maybe just maybe add some allegations about some alleged oral statements that may or may not have actually transpired, but that would be good enough to get past a demurrer (and likely past summary judgment as well, since they involve a credibility call between the lawyer that says they happened and a bank employee who will perhaps say they didn't).

Of course, I'm not saying that happened here. Of course not. What do I know? I'm just saying that things like that could happen. In a parallel universe, perhaps.

So two lessons. One, don't fall for this scam. Two, if you do fall for that scam, it would be really helpful if you alleged (truthfully, of course) that you contacted the bank and they repeatedly assured you that the fake check that you deposited had already cleared.

All good?

Oh, one last thing. Not surprisingly, the plaintiff here does not want his real name in a published opinion that tells the entire world that he was scammed. So plaintiff sues under his initials: Y.P.

The text of the Court of Appeal's opinion similarly consistently refers to the plaintiff as Y.P., and never uses his real name.

And then, on the last page, when it lists the counsel for the parties:

"Peretz & Associates, Yosef Peretz and David Garibaldi, for Plaintiff."

Oops.

U.S. v. Verhonich (9th Cir. - April 7, 2026)

You don't see many federal criminal appeals involving a misdemeanor. Typically you simply serve your sentence -- here, six months -- and be done with it.

Such appeals nonetheless happen, and this morning's opinion, which involves negligent operation of a jet ski at Lake Mead, is one of them.

Lessons nonetheless can be learned, notwithstanding the relatively low punishment imposed. Mostly non-doctrinal lessons. Ones with practical, rather than legal, import.

First, it's generally a bad idea to take off on a jet ski with a passenger at 5:00 a.m. while the wind is high and the lake is choppy. Yes, I know that sunrise on the water over Hoover Dam is beautiful. Still.

Second, if you're going to ignore the first lesson, at least make sure to wear your life jackets. It's also be nice to attach that key lanyard to your body so that if you fall off, the jet ski stops running. That's actually the whole point of having that thing.

Finally, it's a particularly good idea to follow the foregoing suggestions if at least one of the two of you have been recently using cocaine and methamphetamine.

These lessons were not followed here, and the driver of the jet ski gets to spend six months in prison as a result.

But he's still much better off than his passenger, Lily Hatcher. Whose body was found in 300 feet of water one week later.

Let's be careful out there, okay?

People v. Deen (Cal. Supreme Ct. - April 6, 2025)

It's a death penalty case. I totally understand why counsel for the defendant, who's out of peremptory challenges, wants this juror excused for cause. What I don't understand is why the prosecution doesn't realize that letting this juror on creates serious, serious risks of reversal on appeal.

Which, of course, happens. Unanimously. So we now have to redo the entire -- very, very long -- trial yet again. Years later.

One of the two victims of the murder was the chief of police of the small town at issue. Here's the juror's contacts with that victim:

"Juror No. 5 was forthcoming and open as to his associations with Chief Speer, the fact that he had heard details from law enforcement on the day of the killings and thereafter, and that he followed the case in the press. He wrote in his questionnaire that he would have difficulty keeping an open mind and that the accusation of killing a police officer would prevent him from being fair and impartial. He explained that he had known Chief Speer for a number of years, had business dealings with him, knew his wife, would have coffee with him from time to time, and campaigned for him when he ran for sheriff. He added: “in that sense, a friendship existed.” He was on his way to attend Speer’s funeral but was called away as he was approaching the service. He knew 14 of the potential witnesses. When asked if his experience as a police employee would make it difficult for him to be fair and impartial, he replied: “I would like to think not, but of course being in law enforcement, entrenched in it for 15 years might be a little difficult.” Nevertheless, Juror No. 5 said he could be a fair and impartial juror in a case where someone was accused of murdering Chief Speer, could set aside what he had heard from law enforcement sources, could fairly evaluate the testimony of people he knew, and could “wait until the end of the case . . . until both sides had presented their case and argued the case” before making up his mind."

Come one. You're not letting that person on the jury, right? We have actual neutral prospective jurors sitting there and available. No reason to put someone like this on.

Even if they say -- just like we all would want to say (and believe) -- that they could be neutral, just select another juror.

Unless you're affirmatively desirous of an incredibly expensive appellate reversal and retrial.

Ex Parte Milligan (Supreme Court - April 3, 1866)

I occasionally pursue old opinions for fun. This Supreme Court opinion -- Ex Parte Milligan -- was published exactly 160 years ago, to the day, on April 3, 1866.

The opinion was incredibly prescient. So on its anniversary, I thought I'd mention it briefly.

In 1864, the United States arrested Lambdin Milligan, an Indiana lawyer who was an outspoken opponent of the Civil War. Even though Milligan was a civilian, the U.S. tried him before a military commission for alleged offenses against the Union (basically, opposing the war, alongside an alleged connection to a cache of weapons) and sentenced him to hang.

Milligan brought a habeas petition claiming that it was illegal to try him before a military commission instead of before a civilian jury. The Supreme Court agreed. In freeing Milligan, the Court wrote these words, which seem incredibly timely on this day 160 years later. So I thought I'd share them with you:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances . . . . This nation, as experience has proved, cannot always remain at peace, and has no right to expect that it will always have wise and humane rulers, sincerely attached to the principles of the Constitution. Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln . . . ."

Yep. Indeed.

The Merchant of Tennis v. Superior Court (Cal. Ct. App. - April 2, 2026)

I wrote this back on the same day the amendment to the opinion came out on March 23, and today the Court of Appeal issues this.

Today's modification doesn't mention it, but the docket also reflects that on March 24, 25 and 26, the prior amendment was stricken, the remittitur was issued, and then the next day the Court of Appeal ordered the remittitur recalled. Leading to a renewed remittitur and amended opinion today.

All of which is a lot of procedural work just to get things cleaned up the way they should be.

Which I'm sure everyone appreciates. So thanks, Justice Miller.

 

O'Dell v. Aya Healthcare Svcs (9th Cir. - April 1, 2026)

It's entirely appropriate that this Ninth Circuit opinion was issued on April Fool's Day.

Look, I understand that some conservative jurists want to do everything in their power to make it difficult for people to file lawsuits in court. This panel doesn't have anyone on it who's keenly interested in pushing back on this front: the opinion is written by Judge Tung, joined by Judges Tallman and VanDyke.

It's nonetheless shocking how far this panel goes. 

It's not a high-profile subject or an issue near and dear to anyone's political heart. It's instead about a fairly pedestrian and neutral principle of civil procedure called non-mutual issue preclusion. That doctrine's been around for over a century. Most states adopted it a long time ago, and the Supreme Court approved it on the federal side over 50 years ago. Basically -- and you might remember this from your first year class on civil procedure -- that if you're a party and have litigated and lost an issue once, you don't get to relitigate it again. You're issue precluded. It's a policy designed to promote both fairness and judicial efficiency. It's not controversial.

But the panel today holds, for the first time anywhere, that this doctrine is categorically inapplicable to a one and only one area of the law: arbitration agreements. The panel holds that even when a company is litigating the exact same issue in multiple lawsuits (namely, the validity of an arbitration agreement; e.g., whether it's unconscionable), and even when it has lost that issue multiple times in multiple suits, federal law affirmatively preempts the common law doctrine of issue preclusion and allows that party to relitigate this same issue again and again and again in the hopes that it can eventually find some judge who's willing to agree with it.

To be clear: That's not the law. Anywhere. On any issue. No court has ever so held. Not on the issue of the validity of an arbitration clause or on the validity of any other type of contractual clause either. Until today, everyone's understood that the longstanding, entirely neutral common law doctrine of nonmutual issue preclusion was generally applicable.

No longer.

Judge Tung explains at length why he's unhappy with nonmutual offensive issue preclusion. I get it. He thinks it's unfair. He thinks it doesn't make sense to bind a party to a loss on an issue in a different case since, if they'd have won on that same issue, they couldn't bind a different party in a different case. That is the "nonmutual" part of nonmutual issue preclusion, and in the 1800s, that was indeed the prevailing common law rule.

But here's the thing. The Supreme Court has said it's okay. In an 8-1 opinion -- Parklane Hosiery -- back in 1979, the Court addressed precisely the unfairness that Judge Tung isolates and held that it was nonetheless the right and proper policy for federal courts. No one's doubted that this reasoning applies to every issue to which preclusion might possibly be applied, including whether or not a particular contractual provision -- whether an arbitration clause or anything else -- was invalid. Again, until today.

Judge Tung doesn't like that, to hear him put it, non-mutual issue preclusion ostensibly turns a single lawsuit into a type of "class action" that binds others, and without the underlying Rule 23 safeguards. But my reaction to that is: Tell it to the Supreme Court. Because they're expressly okay with precisely the thing to which you're objecting. They considered precisely those arguments in Parklane Hosiery and rejected them. I'm sorry you disagree, but that's nonetheless the law. The only time the opinion even cites Parklane Hoisery is (1) in a footnote, that (2) simply explains what nonmutual offensive issue preclusion means. The opinion otherwise simply entirely ignores that holding.

The opinion insists that there's something special about arbitration clauses, because they purportedly demand "individual" adjudication. First of all, the text of the statute -- something that conservatives purportedly care about -- doesn't say that. Indeed, it says the exact opposite. Section 2 of the Federal Arbitration Act expressly says that courts are allowed to invalidate an arbitration clause pursuant to "such grounds that exist in law or in equity for the revocation of any contract." In other words, as long as you're invalidating a provision based on a generally applicable doctrine -- something that applies to all contracts, instead of singling out arbitration clauses specifically -- that's perfectly okay. That, my friends, is precisely what nonmutual offensive issue preclusion does. It was invented (by the Supreme Court, no less) to be generally applicable. They didn't even think about arbitration clauses when they were adopting the principle, much less singling such provisions out. It's a generally applicable rule, for goodness sake. You can't just say "Oh, well, I don't like it when applied to contractual provisions that I prefer. So I'm not going to let it apply then." The fact that arbitrations aren't class actions and ostensibly require "individual" adjudication doesn't mean that a generally applicable rule doesn't validly apply to them. Just like generally applicable rules about pleadings, notice and motion requirements, and pretty much every other single procedural rule applies across the board and doesn't "individually" isolate their impact on arbitrations. That doesn't mean they're invalid. It means precisely the opposite.

I understand that, in this particular case, the panel was upset because the plaintiffs were able to bind the defendant to unconscionability findings against them in two other cases notwithstanding the fact that in two different cases, the defendant had prevailed on that issue. So the results were inconsistent, and it may well seem unfair to bind the defendant to the holdings of the two cases they lost while not letting them take advantage of the two cases in which they prevailed.

But guess what? The Supreme Court already not only thought of that, but expressly dealt with it. The Court took great pains to say in Parklane Hoisery that when such prior rulings are indeed inconsistent, the district court has discretion to refuse to apply offensive nonmutual issue preclusion in such a setting. That, again, is a generally applicable rule, applicable to arbitration clauses and every other contractual provision as well. If the panel had relied upon that generally applicable exception, great, that'd make total sense. But not only does the panel not do so, but it doesn't even mention that exception. Much less talk about how it solves the precise problem at issue here.

The opinion is also just flat wrong when it says that "[a]n equitable issue-preclusion doctrine (of the offensive non-mutual variety" is not a 'generally applicable contract defense." Yes, it is. It's precisely such a defense. It says that you're not allowed to invoke that defense -- to invoke the provision of the contract that says that one side is not permitted to sue in court -- because we've already found that this contractual provision is unconscionable and hence invalid. That's a defense. It's a defense -- and undeniably a generally applicable one -- just like "but you put a gun to my head and make me sign it" is a defense. You're not allowed to enforce that provision. And, by the way, if issue preclusion isn't really a "defense" to a contract then neither is claim preclusion, or any other similar procedural rule. So the FAA after today apparently equally allows a party to relitigate unconscionability a thousand times if it feels like it in the same case, because claim preclusion and the other relitigation bars aren't "defenses" either. Silly.

I could go on identifying the errors in the panel's reasoning, but it's already getting frustrating to do so. The point is this: It's a generally applicable rule. It applies to everything. It doesn't make enforcing arbitration agreements impossible -- or even more difficult, honestly. It just says that once you lose, you can't relitigate the issue again. It's a neutral policy that protects the judicial process and that's designed to advance neutral principles of fairness and judicial efficiency. Once you've had your day in court and lost, you can't keep relitigating the exact same issue again and again and again. Such a rule, the United States Supreme Court has said, "reflects either the aura of the gaming table or a lack of discipline and disinterestedness on the part of the lower courts." I couldn't have said it better myself, in words that are squarely applicable here.

I get that this is perhaps a niche topic, and one of particular interest perhaps only to civil procedure scholars such as myself. Still. It matters. Law matters. Consistently matters. Following Supreme Court precedent matters. And, yes, it's true, the Supreme Court has never expressly said that its generally applicable nonmutual issue preclusion holdings apply equally to arbitration provisions like every other issue. Just like it's never expressly said that its holdings about putting guns to people's head and making them sign contracts applies equally to arbitration clauses. No matter. It's the same thing. The same rules apply to deciding the validity of arbitration clauses just like deciding the validity of each and every other type of contractual provisions. The rules are the same. Nonmutual offensive issue preclusion applies to each.

Until, for the first time ever, April Fool's Day, 2026 in the Ninth Circuit.