U.S. v. Holmes (9th Cir. - Dec. 22, 2025)

Four Ninth Circuit opinions today (here, here, here and here) finally put to rest the appeals of Elizabeth Holmes and Ramesh Sunny Balwani.

As I read the opinion, I thought how nice it must be, on at least some level(s), to be a defense lawyer in a fraud case in which you're defending an incredibly wealthy person facing substantial prison time. Especially if they're fairly clearly guilty. (The two defendants here were sentenced to over a decade in prison plus a $452 million restitution order.)

At least hypothetically, the fee conversation might well come down to something like this:

Lawyer: "I'm going to charge a ton. Millions. Tens of millions. But what do you care? You're likely losing all your money anyway in a massive restitution order, plus whatever civil fraud judgments someone feels like obtaining against you. You might as well give the money to me rather than to the government or your creditors. At least that way you have a shot -- even if it's only a tiny one -- of getting off.

Client: Okay.

People v. Ismaeil (Cal. Ct. App. - Dec. 15, 2025)

When you're charged with soliciting a minor, you're not guilty if you thought the person was actually old enough to consent. Moreover, since it's a crime with mens rea, your mistake of fact doesn't necessarily have to be reasonable. Even if most people would think that she was only 16, for example, if you in fact thought she was 19, that's a defense. In this opinion, the trial court gave an erroneous instruction that the defendant's mistake had to be reasonable, the prosecutor harped on this issue at closing argument, and so Mr. Ismaeil gets a new trial. That's the rule.

At the same time, I'm not sure that the reversal is going to help Mr. Ismaeil that much. He was only sentenced to two years of probation. Now he's going to have to endure a new trial. Moreover, I strongly doubt the result of that trial is going to be any different than the earlier one at which he was convicted. Here's are the basic facts:

"In April 2018, Senior Inspector Darryl Holcombe of the Contra Costa County District Attorney’s Office was conducting an investigation through the Internet Crimes Against Children Task Force. In that role, Holcombe had a profile on Whisper, a smartphone application. Holcombe set up a Whisper profile in which his persona was a female user between the ages of 15 and 17 (the only age category for minors). He pretended to be a 14-year-old girl named Lizzy, who was a sexually inexperienced high school freshman with separated parents. . . . Appellant—as a Whisper user calling himself Eddy— contacted “Iconsborn” through a direct message. After some initial back and forth, “Iconsborn” identified herself as Lizzy and asked appellant how old he was; appellant responded that he was 28. Lizzy said she was 14; appellant responded, “Ah lol.” . . .

After appellant sent Iconsborn a photo of his cat, Iconsborn responded by sending a photo she identified as herself with her dog. The photo was actually of a Homeland Security agent from New York when she was 14. Appellant complained about having to drive to Modesto the next day and Iconsborn responded, “I can’t wait to drive.” Appellant said he taught his sister how to drive, and Iconsborn said, “I wanna learn.” Appellant said that he could teach Iconsborn but added, “You’re supposed to have a permit before you get trained though.”

Iconsborn asked appellant, “Do u have a gf,” and he responded, “Nope,” and asked, “You have a bf?” Iconsborn said, “No,” and added, “I’m not really allowed to.” She explained that her mom was “weird about it” and, in response to appellant’s questions, denied that it was “like one of those arranged marriage things” or “a religious thing.” She continued, “I mean I’ve liked guys and hung out with them she just is protective.” Iconsborn said she had gone out on a couple dates and to a “school dance” with a guy. Appellant asked, “Anything after that?” and Iconsborn responded, “Kissing.” Appellant said, “That’s it?” and Iconsborn said, “Yeah that’s all I’ve done.” Appellant questioned further, asking, “Is it because you didn’t want to?” Iconsborn responded, “I do I just got nervous.” Appellant then said, “You’re missing out,” and “It’s the best thing ever lol.” Iconsborn responded, “Lol. Probably. Plus he would just tell everyone at school.” Appellant said, “So you need it to be a secret,” and added, “I can keep secrets.” Iconsborn wrote, “That cause u r older,” and appellant responded, “That’s true[.] . . . Things are more private when you’re older.”

Iconsborn asked appellant what he looked like and he sent her two photos—in one, he had a bare torso and a towel on the lower half of his body. Iconsborn responded, “Wow. Hot.” Appellant wrote that he had “other gifts too” and that he was “much more well equipped than most guys lol.” Iconsborn sent another photo, again of a law enforcement officer when she was 14. Appellant responded, “You’re on fire,” “You woke up my other half,” “Down below,” and “You better take responsibility for waking him up.”

Appellant then asked Iconsborn if she was “allowed to leave the house whenever you want or does your parents not let you?” She answered, “I live with my mom she usually works until 8,” and added that she and her sister sometimes had dinner with her dad. Appellant then wrote, “[I]f you want we can mess around this week.” Iconsborn answered, “Let me see if I can ditch my sister in the afternoon,” and appellant said he would get a “[h]otel room” so they could “mess around.”

 The next morning, appellant sent Iconsborn two photos with the camera pointed at his groin area; in one, he was wearing only underwear. Iconsborn said she was going to the “mall with mom for a bit.” Appellant asked about meeting up in the afternoon, offering again to give a driving lesson and adding, “Then we can have fun after.” Appellant commented, “But it’s your first time,” and Iconsborn wrote, “I might not be good at it,” and “I don’t wanna get preggo cause yeah that would sux.” Appellant responded, “You won’t trust me lol,” and “I have very good self control and I know when to pull out.” Appellant offered to pick Iconsborn up but she said not at her house “[c]aus my older sis may be there.”

Appellant and Iconsborn continued to text and made plans to meet up in downtown Pleasant Hill. Appellant promised to have her home by 8:00 p.m. The final text in the thread is appellant announcing his arrival at the meeting place. He was met by law enforcement and detained. A search of his car revealed a brown bag containing a box of condoms and a container of lubricant, purchased about 30 minutes earlier."

Yeah. You're pretty much 100% getting found guilty again, dude.

I would just plead guilty and get it over with, personally.

Pham v. Superior Court (Cal. Ct. App. - Dec. 16, 2025)

I certainly understand why Justice Gooding published this opinion today. It's definitely an important topic: When frozen fertilized embryos are jointly owned during a marriage, is one spouse entitled to possess (and potentially use) those embryos after a divorce even over the objection of the former spouse? There is also apparently a "case of apparent first impression in California appellate courts," so I can readily see why the Court of Appeal might want to resolve this issue in a published opinion.

Today's opinion holds that when the parties have contractually agreed (while married) that one spouse may use the embryos, if s/he wishes, in the event of a divorce, the California courts will enforce that provision notwithstanding the changed consent of the other (now former) spouse. As a result, even though someone no longer consents to being a parent, their prior consent to being a parent is sufficient.

That might perhaps be the right rule. At least at present, I don't have unalterably strong feelings about it one way or the other. I see the argument for it, though at the same time, readily understand the arguments the other way as well. It's definitely not an easy issue.

But what struck me about today's published opinion is that it's rendered in a case in which both parties are representing themselves pro per. I'm confident that the Court of Appeal was fully aware of the arguments that both sides raised. But, to be honest, on an issue that's this important, I would personally be reluctant to decide the thing -- especially in a published opinion that's binding on trial courts -- without informed briefing from lawyers, (potentially) amici, and the like. None of which transpires here.

It'd be one thing if all the states agreed that contractual provisions like these are enforced. But that's most definitely not the case. Some states enforce them. Other states adopt a balancing test instead. And other states -- perhaps even a majority (at least according to one of the pro per briefs) -- don't enforce these types of contractual provisions at all, holding that consent is instead required at the time the person is proposed to become a parent. (Kinda like sex itself.)

Particularly given these conflicting judicial views, I might be hesitant to decide -- or at least publish -- an opinion that resolves this dispute without the (presumptively helpful and informative) input of lawyers and other interested persons, rather than relying solely on the briefs of pro per litigants.

I understand the contrary view, and I'm confident that the Court of Appeal thought that it could correctly adjudicate this issue based upon the limited materials already available to it.

But I can very much see the other side as well.

California v. Federal Contempt (Apps - Dec. 11-12, 2025)

It's serendipitous that these two opinions -- one federal, and one state -- came out within days of each other, and were also published.

Both involve contempt charges against a litigant, but they take very different approaches.

The first opinion was published yesterday, and arose out of the high-profile Epic v. Apple dispute. There, Epic (the maker of Fortnite) sued Apple, claiming that was an antitrust violation for Apple to prohibit Epic from allowing users to purchase game-related content outside of Apple's own store (for which Apple took a hefty commission). The trial court agreed, and granted an injunction that barred Apple from stopping Epic from making sales outside of Apple's platform.

Thereafter, Apple, with the advice of sophisticated counsel, circumvented the injunction while technically complying with its terms. Consistent with the injunction, after the injunction, Apple allowed Epic to sell content on its own. But Apple instituted a mandatory royalty rate that was essentially the exact same as the commission that it had previously obtained from Epic on the earlier Apple-mandated internal sales.

The district court said: "No dice. Contempt." And the Ninth Circuit largely affirmed. Apple's conduct admittedly followed the literal terms of the injunction, but the Ninth Circuit held that the finding of contempt was proper because there was, as here, "a violation of the spirit of the injunction, even though its strict letter may not have been disregarded."

Then, today, the California Court of Appeal publishes an opinion in a different, but doctrinally very similar, contempt case. There, a couple had nasty divorce proceedings, and the trial court granted joint custody over the child, with one of the parents (who lived hundreds of miles away) to have weekend visitation. In order to permit meaningful visitation, the trial court also ordered: "Neither parent shall schedule any school events, extracurricular or religious events, medical or therapeutic appointments, or other events during the other parent’s custodial time without approval of the other parent."

Notwithstanding this order, one of the parents -- the one with primary physical custody -- signed the child up for various sports activities that occurred during the other parent's weekend visitation period. A school mountain bike competition. The ski team, with weekend ski competitions. The basketball team, which had (again) weekend games. The other former spouse objected, saying that this conduct, which was performed without her input or consent, interfered with her visitation period and violated the trial court's order, since it meant that she'd fly up from Orange County (to Nevada City) for her weekend only to have it taken up by activities that the other parent had unilaterally set. The trial court agreed, found the parent in contempt, and imposed a $2,000 per violation penalty. 

But the Court of Appeal reversed. Taking the exactly opposite approach of the Ninth Circuit, the Court of Appeal held that even if the parent's conduct conflicted with the spirit and intent of the trial court's order, since it didn't violate the "literal words" of the order, there was no basis for a contempt penalty. Since the order only prohibited the parent from "scheduling . . . any events," and since it was technically the school who "scheduled" the underlying events for any particular weekend, the Court of Appeal held that the trial court couldn't permissibly find contempt. "[W]hile the sports teams did result in some of Xander’s activities occurring during Larsen’s parenting time, Houser did not schedule those events, the teams did, and thus she did not violate the letter of the order." (emphasis in original)

Again, interesting that these two opinions are published within 24 hours of each other.

U.S. v. Kittson (9th Cir. - Dec. 10, 2025)

Judge Owens' opinion this morning crushes Judge VanDyke's dissent.

Or at least that's my opinion. Read both of them, if you wish, to see if you disagree.

For sake of brevity, here's just a snippet of what Judge Owens says:

"Without citing a single case, Kittson demands that we sweep away decades of case law and logic and hold that there is nothing illegal about transferring machineguns to undercover agents posing as the most odious criminals. . . . If Congress had intended to disrupt the history and tradition of law enforcement using undercover agents to stop arms traffickers from peddling exceedingly dangerous, military grade automatic weapons, it could have easily done so by inserting such language into § 922(o). It never did, and we are not in the business of doing so, especially when it would lead to the absurd result of trying to catch arms traffickers after they have transferred the weapon to a mass killer, rather than stopping them before the carnage ensues. . . .

The dissent’s many arguments, ranging from speed limit hypotheticals to unwell uncles, branch from the same thought tree—that Congress would care deeply about someone possessing a machinegun, but couldn’t care less about someone who wanted to transfer that same machinegun to the vilest of criminals.

The dissent’s explanation for this logical disconnect? That “[i]n the vast majority of cases involving an undercover sting, that distinction doesn’t matter much because the defendant will inevitably have both transferred the machinegun and necessarily possessed it when he personally handled it before transferring it.” In other words, the transfer language of 922(o) vanishes from the statute when undercover agents are involved.

The dissent never explains why we should erase transfer liability from section 922(o). It presents no support for its claim that the “vast majority” of undercover sting cases will involve a defendant who both transfers and personally possesses a machinegun. One can easily conjure up countless examples of when someone would be guilty of transferring firearms even if they did not possess them—a sophisticated arms dealer who uses a third party to transfer the machinegun to a terrorist organization who will attack a Veterans Day Parade, the cartel leader who orders his foot soldiers to transfer a machinegun to the sicario, a white supremacist who commands his new recruit to trade the machinegun for fentanyl, and so on. Or a simpler case, like this one, where Kittson caused the transfer of a machinegun to someone he thought was a drug dealer.

But what the dissent cannot conjure up is why Congress would ever intend for this Legion of Doom to avoid prosecution. Much like Kittson, the dissent cannot cite a single case, law review article, or even scrap of legislative history to prop up its reading of Section 922. Instead, it speculates that “[b]y granting immunity to individuals who transfer machineguns to the federal government, Congress encourages the central goal of § 922(o): limiting machineguns in private ownership and stopping the interstate transfer of those weapons.” But it is hard to see how immunizing defendants like Kittson could help stem the interstate transfer of machineguns. A defendant in Kittson’s position, looking to transfer a machinegun to someone he believes to be an arms trafficker, should reasonably feel emboldened under the dissent’s interpretation of Section 922. If the buyer is in fact an arms trafficker, then he has avoided capture in a government sting operation. If the buyer is an undercover officer, he is home free under the dissent’s reading of § 922(o)(2)(A). On the other hand, the dissent’s interpretation does nothing to promote lawful transfers to government. Merely excluding defendants caught in sting operations from the razor-thin ambit of § 922(o)(2)(A) immunity, as the majority does here, has no effect on individuals intending to make lawful machinegun transfers to the government." 

Peterson v. Zhang (Cal. Ct. App. - Dec. 8, 2025)

Today's opinion makes clear -- or at least provides yet another example of -- something that was decently clear already:

Protracted litigation between neighbors in a rich neighborhood -- here, Palos Verdes Estates -- is (at least amongst) the worst.

Morgan v. Ygrene Energy Fund (Cal. Supreme Ct. - Dec. 4, 2025)

The California Supreme Court does it again. This time, in an opinion by Justice Kruger. Another opinion that begins by cogently summarizing both what the case is about and how it gets resolved. It reads (with citations omitted):

Under California law, a person who wants to challenge a tax ordinarily must first pay the tax and then seek available relief from tax authorities; if that effort is unsuccessful, the person may then file a tax refund action in court. Here we consider how these tax-challenge procedures apply in a dispute concerning a unique financing arrangement in which individuals repay funds in the form of taxes.

The arrangements at issue owe their existence to California’s Property Assessed Clean Energy (PACE) program, a program that allows local governments to provide homeowners with financing for energy efficiency home improvements in exchange for a voluntary special assessment added to their property taxes and secured by a lien on their real property. Although many local governments have adopted the PACE program, few run the program themselves; most have contracted with private companies. Plaintiffs are homeowners who have entered into PACE contracts administered by private entities. Plaintiffs allege that these private PACE administrators should have, but did not, comply with consumer protection and other regulatory requirements applicable to consumer lenders. Plaintiffs filed suit under the Unfair Competition Law (UCL), seeking various restitutionary and injunctive remedies, including an order requiring the PACE administrators to return PACE assessment monies received and prohibiting them from collecting delinquent assessments, unless and until the assessments are lifted from their properties.

At this stage of the proceedings, the sole question is whether plaintiffs were required to follow the statutory procedures for challenging taxes — meaning that they should have started not by filing suit in court, but by paying the PACE assessments and then seeking administrative tax relief from local authorities. The answer depends on the nature of plaintiffs’ claims and the relief they seek. By statute, PACE assessments are collected at the same time and in the same manner as local taxes, and so are subject to the same correction, cancellation, and refund rules as other taxes. Because plaintiffs’ central claims for relief effectively seek to invalidate the PACE assessments and prevent their future collection, plaintiffs are required to follow the applicable statutory procedures for challenging taxes. But plaintiffs are not required to follow the statutory tax relief procedures in order to pursue other, nontax-related, remedies concerning the administration of the PACE loans. We affirm in part, reverse in part, and remand for further consideration of whether plaintiffs should be granted leave to amend their complaints to plead only claims for relief that neither directly nor indirectly challenge a tax."

I'm not really sure that the PACE programs, or underlying legal issues, were really worth the rare grant of review by the California Supreme Court. But given that review was indeed granted, it's nice to see a great three-paragraph introduction at the outset.

Let's hope it becomes a trend.

Arroyo v. Pacific Ridge HOA (Cal. Ct. App. - Dec. 2, 2025)

Justice O'Rourke decides to publish this opinion, which involves a condo complex, alongside its associated homeowner's association, that's literally across the street from the University at which I work. As a result, I was keenly interested in learning about the various goings-on there.

In brief, it sounds like a nightmare.

Basically, it's a fight between one of the condo owners, who is/was on the board of the HOA, and the rest of the HOA. A fight that involves a plethora of lawsuits, a contested recall election, etc.

The condo owner, Rachel Arroyo, wins -- in part -- this round in the Court of Appeal, which holds that she was wrongfully excluded from various election-related materials distributed by the HOA.

So nice win for her.

But I nonetheless think she's losing in the end. Because while the Court of Appeal holds (in part) for her, it concludes its opinion by stating: "The judgment is reversed. On remand, the trial court is directed to conduct further proceedings so as to give Association the opportunity to establish, by a preponderance of the evidence, that its noncompliance with section 5105 did not affect the results of the election, and state its findings in writing as part of the record."

I'm fairly certain that the HOA will, in fact, be able to prove that fact on remand. Because the result of the prior election was 369 votes to recall Ms. Arroyo from the board of directors versus only 6 votes to retain her.

So I'm pretty sure she's going to lose on remand.

And, quite frankly, that she's probably not especially well-liked by her neighbors.

Doyle v. Royal (9th Cir. - Dec. 2, 2025)

I understand contemporary politics. If you're a conservative federal appellate judge -- especially one who's relatively young -- and looking to potentially "move up" to the Supreme Court, you may perhaps want to make your mark by decrying the purportedly absurdly liberal jurisprudential world in which we now live. That'll attract attention. Maybe it'll make you famous, or advance your career. And, perhaps, a lot of what you say is even something that part of you may in fact believe.

Those are my thoughts, anyway, after reading Judge Lee's partial dissent in this death penalty case.

Judge Lee bemoans the fact that this federal habeas case reaches the Ninth Circuit a full thirty years after the state court trial. He's not the only one, of course, to discuss the lengthy delays in habeas death penalty cases. I've said the same thing, for example, on a plethora of occasions. This is not a novel observation.

These delays happen for a plethora of reasons. AEDPA. The Supreme Court's convoluted exhaustion rules. Underfunded -- or entirely unavailable -- habeas defense counsel. Briefing extensions repeatedly requested by the prosecution. All of which are inventions of conservative (not liberal) institutions.

Liberal practices -- defense requests for extensions, for example -- obviously result in substantial delay as well. But it's a systemic problem. One that neither side of the political spectrum, conservative or liberal, is justifiably positioned to politically exploit.

That aside, the point that Judge Lee makes today in his partial dissent seems particularly unpersuasive. He argues that habeas delays result in -- and I'm using his words here -- "a get out of jail card" for prisoners. Because the delays take so long, he argues, even people that are clearly guilty get to go free, since the delay means that memories have faded, witnesses have disappeared, etc.

That seems to me a uniquely cynical, and untrue, argument.

For starters, during the entire period of delay, the defendant is in prison. Often, as here, on death row; hardly a place that's particularly comfortable, even compared to usual (deploring) prison standards. The principal, and facial, result of habeas delay is thus not to get people out of prison, but to keep them in prison -- even if their habeas petition will eventually be successful and they don't deserve to be there.

So rather than a "get out of jail free" card, it might better be argued that habeas delays instead are a "wrongfully stay in jail" card. The exact opposite of Judge Lee's point.

And, to be clear, the overwhelming majority of habeas petitions accomplish nothing but precisely such continued incarceration. Study after study has found that only one percent of federal habeas challenges to state convictions are successful. And pretty much every single one of those studies was conducted before the Supreme Court made it, though repeated (and continuing) opinions, much harder to win federal habeas petitions.

But, for argument's sake, let's take that incredibly small number of cases where a habeas petition is granted. Where, despite the plethora of limitation on granting habeas relief, the defendant is able to jump through all of the relevant hoops, and establishes -- as required by the writ -- that his confinement in prison does, in fact, violate the most sacred of our legal documents: the Constitution.

What then?

Judge Lee contends that it's a get out of jail free card. Balderdash. Almost invariably, the guy gets retried and convicted again. Especially in those cases, like Judge Lee describes this one, in which the defendant is "obviously guilty". Judge Lee's dissent doesn't reference even a single case in which the federal courts granted a habeas petition in which the guy was obviously guilty (or admitted his guilt) and the granting of the petition resulted in the guy going free, rather than simply being found guilty at a retrial that satisfies the requirements of the Constitution.

Now, in the 250-year history of our great Republic, have there perhaps been instances in which someone has gone free as a result of a federal habeas grant? Assuredly so. But particularly given the infinitesimal rate of habeas grants, I strongly doubt it's a substantial number, or one that would in any universe allow someone to credibly call federal habeas review a "get out of jail free" card.

I would write more, but I fear I'm belaboring the point. Which is that, yes, particularly in death penalty cases, I'm on board for the proposition that 30-year delays are entirely suboptimal. We should work to change that system. Totally agree.

But "get out of jail free" card? No. Not in the slightest. Simply untrue.

In re S.R. (Cal. Supreme Court - Dec. 1, 2025)

I really appreciate it when an opinion -- especially a California Supreme Court opinion -- explains at the outset (1) what the case is about, and (2) why, briefly, the opinion comes out the way it does. In truth, I'm going to read the whole thing regardless. But I like the roadmap. And, for different readers, including such an introduction may perhaps allow them to skip (or at least only peruse) the subsequent dozens of detailed pages.

For example, here's how Justice Liu begins his opinion today (with most citations omitted):

"California’s Child Abuse Central Index (CACI) is a database comprised of substantiated reports of “child abuse or severe neglect.” Certain state agencies are required to forward qualifying reports to the California Department of Justice (DOJ) for inclusion in the CACI. “[I]nformation included in the CACI is available to a wide variety of state agencies, employers, and law enforcement,” and inclusion of a parent’s conduct in the CACI carries significant consequences for the parent. (In re D.P. (2023) 14 Cal.5th 266, 279.) Once listed in the CACI, an individual remains listed until the age of 100, at which point the listing is removed.

The issue here is one we left open in In re D.P.: Whether a parent’s appeal from a juvenile court’s jurisdictional finding survives a mootness challenge where the parent shows that an agency must report the allegation underlying the court’s finding for inclusion in the CACI. The answer is yes. As the Los Angeles County Department of Children and Family Services (the Department) concedes, it is proper for a court to presume an agency will fulfill its reporting duty. Reversal of a jurisdictional finding can redress that harm by prompting removal of the parent from the CACI or by preserving a parent’s right to a grievance hearing to challenge an agency’s failure to reclassify the report as unsubstantiated. Thus, a parent demonstrates “a specific legal or practical consequence that would be avoided upon reversal of the jurisdictional findings” (In re D.P., supra, 14 Cal.5th at p. 273) when the parent shows that the challenged allegation is one that an agency must report for inclusion in the CACI.

Here, the Department acknowledges that it is required to report the allegation against S.F. (Mother) to the DOJ for inclusion in the CACI. There is also no genuine dispute that Mother will suffer harm from being included in the CACI. Because Mother has demonstrated that this specific consequence could be rectified or avoided if she prevails in challenging the allegation on appeal, “the case is not moot, and merits review is required.” (In re D.P., supra, 14 Cal.5th at p. 283.) Accordingly, we reverse the order dismissing Mother’s appeal and remand to the Court of Appeal for further proceedings."

Beautiful. Love it.

People v. North River Ins. Co. (Cal. Ct. App. - Nov. 24, 2025)

Justice Wiley's brevity doesn't always work for me. But sometimes it lands exceptionally well. This opinion is an example of the latter.

The case was in the Court of Appeal, went up to the California Supreme Court, and is now back down. In the California Supremes, the majority opinion reversed and remanded, and Justice Kruger wrote a fairly detailed concurring opinion. So now the case is back in the Court of Appeal. Hence the current opinion.

Here's the first paragraph of the opinion that I really liked, especially the italicized word:

"The Supreme Court remanded the case to us. We adopt Justice Kruger’s concurring analysis. (North River, supra, 18 Cal.5th at pp. 23–32.) This analysis is not binding authority, because the majority of the high court did not speak to the issue she addressed. This analysis is, however, persuasive. It is highly persuasive. We remand the case to the trial court for the decisionmaking this analysis requires."

I smiled at that one.

The final substantive paragraph of Justice Wiley's opinion also gave me a chuckle. It reads (with, again, the italics in the original):

"The prosecution argues the majority did not share Justice Kruger’s analysis. That is not what the majority wrote. Rather, the high court acknowledged Justice Kruger’s concurrence and stated the “majority opinion expresses no views on those questions.” (North River, supra, 18 Cal.5th at p. 20, fn. 5, italics added.) We interpret this to mean the majority expressed no views on those questions."

Ho ho ho. Love it.

Deol v. California Vet. Med. Bd. (Cal. Ct. App. - Nov. 24, 2025)

Today in the Court of Appeal has been mostly a day for error correction. Three different opinions correct typos and other minor errors in previously published opinions: here, here and here. Clearing the slate before the Thanksgiving holiday, perhaps.

Meanwhile, here's a substantive opinion that involves an appeal from, of all places, the California Veterinary Board. I've seen a number of different appeals from the Medical Board, of course. But this is the first one I recall that revoked a veterinary license. And before reading today's opinion, I would have thought that you'd have to do a lot to get your veterinary license revoked. Apparently not. The petitioner here got his license revoked for "negligence, incompetence, and unprofessional conduct" because he administered the DA2PP and Bordetella vaccines to an eight year old cocker spaniel despite having a fever of 103.4 degrees. He didn't tell the dog's owners about the fever or that administering vaccines to a febrile dog could cause serious disease and death, and the dog subsequently died. There was apparently one other animal death in the past as well, and based on that, his license got revoked, and the Court of Appeal affirms (as well as reinstates an alternative charge).

Admittedly, I would not be psyched if my dog died to my veterinarian's incompetence, and I would instead be super upset. But until today, I wouldn't have thought that it was feasible that his license might be taken away for the thing.

Apparently, at least in some settings, that's definitely on the table.

Who knew?

OneTaste, Inc v. NetFlix, Inc. (Cal. Ct. App. - Nov. 20, 2025)

There you have it. As of today, the phrase "Orgasm Cult" has been officially introduced into the published opinions of the California Appellate Reports.

P.S. - For clarity, when people refer to going to the "O.C.", they're usually referring to Orange County.

Schlichter v. Kennedy (Cal. Ct. App. - Nov. 17, 2025)

I'm surprised -- very surprised, actually -- that the Court of Appeal only imposes $1,750 in sanctions against the attorney here. I would have imposed a greater penalty. As well as have been much meaner.

It's another one of these "AI hallucination" cases, where someone writes a brief in whole or part with artificial intelligence that contains made-up cases (or cases with made-up citations) that fail to support anything relevant. Once caught, what attorneys generally do in these settings is to deliver to the court a huge mea culpa -- sometimes combined with a "Oh but we try real hard to catch these things, so sorry we failed in this particular case" defense. They generally end up getting sanctioned, of course, but the court at least appreciates their candor. And, in most cases, anyway, their apology. (Though, at the same time, also understanding the strategic nature of those admissions.)

The attorney here, by contrast, adopts a different approach. Once caught, after the Court of Appeal issued an order to show cause, he initially told the justices that the miscited cases were entirely his fault, and said that "the core allegation as to using 'AI hallucination' cases is entirely untrue" -- asserting instead that "none of the cases was the product of an AI hallucination, and these errors are entirely clerical in nature." He proposed that he be sanctioned $500 and not required to show up at the hearing on the OSC, but the Court of Appeal refused to discharge the writ. 

At the hearing, the lawyer -- Jeffrey Dean Grotke -- admitted that he had used AI in preparing the brief, ostensibly only to better organize the brief. The Court of Appeal was not persuaded, and repeatedly held that Grotke's responses to the court were "not credible" (as well as lacked "candor") -- and described in substantial detail the basis for the court's belief in this regard. In the end, it sanctions Grotke $1,750, to be paid to the Court of Appeal, and directs that the opinion be sent to the State Bar.

All that seems entirely appropriate to me. It's good to publish opinions that make clear, even though it's crystal clear already, that attorneys have to be diligent in verifying their AI-generated work. And when they're not, it's entirely appropriate to not only publish the underlying opinion, as well as to refer to the sanctioned attorney by name, but to also send that opinion to the State Bar.

But I would have been even harsher here. It's one thing to prepare an AI-generated brief without checking the resulting work product. That's wrong, but it's only negligence. It's another thing, after being caught, to make representations to the court about that brief that are factually untrue. That's intentionally deceptive -- as well as premeditated.

Words like "not credible" and "lacks candor" are, in my view, entirely accurate to describe such conduct, but too soft. To me, that's an even more serious offense. And deserving of an even harsher response.

When you make a mistake, honorable people own up to it. To do otherwise, especially to a court, bespeaks volumes about one's character.

People v. Demacedo (Cal. Ct. App. - Nov. 13, 2025)

I'm conflicted.

When I read the facts, I want this guy to be severely punished. He drives while intoxicated, and heavily so: a .18. He crashes into another car in which four people are travelling, killing three of them and severely injuring the fourth.

That's a nightmare. Three innocent people dead, and other scarred for life. All as a result of someone who deliberately drove while drunk.

Then I read the guy's sentence. 47 years to life.

You get less than that for deliberate first-degree murders. People who intentionally cause death. There's part of me that finds that seriously wrong. Seriously.

I'm not sure where I ultimately come out; what the correct sentence should be. Because I remain torn.

But, at a minimum, reading this opinion definitely generates thoughts. As well as emotions.

In re A.H. (Cal. Ct. App. - Nov. 12, 2025)

Rarely is one's relationship with one's child perfect. But before one exaggerates one's own problems, it might be valuable to compare one's own situation to that of others. Like this parent:

On May 7, 2024, the district attorney filed a wardship petition and, on May 17, amended it to allege that then 16-year-old A.H. committed second degree robbery and grand theft of a person. . . . On June 14, A.H. was adjudged a ward of the juvenile court, placed on probation, and released to home supervision in his mother’s home with a GPS ankle monitor, subject to various terms and conditions. 

On June 24, the probation department filed a notice of probation violation. On June 25, A.H. admitted he violated the conditions of probation by failing to obey his mother, leaving his residence on multiple occasions without probation’s approval, and violating curfew. . . . On August 14, the probation filed another notice of probation violation. [On] August 27, A.H. admitted he violated the conditions of probation by failing to attend two meetings of his mentorship program, testing positive for THC, and smoking marijuana. [P.S. - Justice Richman might want to edit the opinion to include the missing "On"]

. . . . [T]he public defender’s office had A.H. assessed by a doctor, who diagnosed A.H. with several mental health conditions including depression, anxiety, and cannabis use disorder. . . . On September 18, the probation department filed a memorandum indicating that probation again had A.H. screened for eligibility and suitability in an STRTP. Based on that screening, probation found A.H.’s suitability in an STRTP “still highly questionable.” However, because A.H.’s mother recently expressed she did not feel safe with her son in her house due to his past negative behavior towards her and was no longer willing to house him, probation concluded it was “left with no other option but determine that placement be ordered.”"

Obviously, there are worse relationships, and more troubled children. But when a mother no longer feels safe with her own son, and is now unwilling to live with him, that's really not good.

Hunt v. PriceWaterhouseCoopers (9th Cir. - Nov. 10, 2025)

To work -- or at least to work efficiently -- capital markets require integrity. After reading hundreds of securities fraud cases over the last quarter century, I'm just not sure they in fact possess that quality.

Today's opinion is typical of what I often see. A company (here, Bloom Energy) designs and sells fuel-cell servers. It's a private company, but wants to (and eventually does) issue an IPO.

It could just present its finances in a straightforward manner. But no. Instead, it enters into various sale-leaseback arrangements where it (1) sells an energy server to a bank, (2) leases that same energy server back from the bank, and then (3) subleases that server to a customer, alongside a contract to service the server (which, technically, the bank owns).

There are a whole bunch of rules about whether these types of sale-leaseback arrangements are operating versus capital leases. The company desperately wants it to be classified as an operating lease, and designs the contracts accordingly. It thus values the leases (and resulting income) as operating leases, persuades its accountants to get on board, and goes public -- resulting in an infusion of half a billion dollars.

Later on, when the accountants inquire further into the underlying leases, the company regretfully has to reclassify the leases as capital leases, and on the day they make the announcement doing so, the now-public stock plummets 13.8%.

There's no way that normal people -- even smart normal people -- can figure out what's going on with the underlying machinations. And stuff like this happens all the time. I've gradually gotten a keen sense that I can't really rely at all on the purported income and profits claimed by large public companies. Could they be accurate? Of course they could. But they could also consist of a wide variety of this sort of stuff as well -- either in whole or in part. And there's absolutely no way for me to tell.

Now, because these things are so pervasive, it's not like I really have a ton of alternative investment options, at least in terms of equities.

But I'd be lying if I said that this uncertainty doesn't infect my investment calculus. It does. For sure.

Which is unfortunate. I'm profoundly unhappy with a system that both allows and rewards stuff like this.

State of California v. Del Rosa (9th Cir. - Nov. 7, 2025)

It's rare to see the State of California as a plaintiff. But here, it sues a corporation that's owned by an Indian tribe, alongside some individual defendants, who are illegally selling cigarettes to non-tribal members without paying the required taxes -- all in violation of federal law.

Good for California, I say.

It's also stunning to see both how long this litigation has taken -- California first started its attempts to enforce federal law against the defendants back in 2018 -- as well as how powerless the federal courts have been in the underlying litigation. The district court entered a preliminary injunction in 2023, and the Ninth Circuit affirmed in 2024, and yet according to footnote five of today's opinion, here's how effective that injunction has been:

"Defendants apparently have not complied with the preliminary injunction. In February 2024, following a contempt motion by California, the district court found that California “provided evidence showing Azuma has continued to deliver cigarettes on its own behalf” “to the same customers previously identified in the preliminary injunction record.” Even after California filed for contempt, but before the district court ruled, Azuma “shipped an estimated additional 2.5 million cigarettes” in violation of the preliminary injunction. In February 2025, California filed a notice of violation that “the distribution of Azuma cigarettes ha[d] continued uninterrupted,” and that Azuma had distributed over 29 million cigarettes since February 2024."

Bold indeed.

Let's hope that future enforcement efforts are a bit more rigorous.

Coastal Environmental Rts. Found. v. Naples Rest. Group (9th Cir. - Nov. 5, 2025)

This is a fairly long opinion -- a couple of dozen single-spaced pages -- arising out of a fireworks display in which one of the fireworks failed to timely explode (and hence landed in, and thus marginally polluted, the water in the bay) and after which the defendant paid $3,576 for a permit. A lengthy litigation, multiple appeals, some district court factfinding, and ultimately a dismissal on grounds of mootness.

Lots of work for very little bang. (If you'll pardon the pun.)

On the upside, I thought that Judge Donato's concurrence (sitting by designation) was nice. He says:

"The new opinion replaces the original opinion from which I dissented. My view in the dissent was that the majority was rushing to declare the case moot without adequate support in the record, which I concluded was inconsistent with governing law. . . . The record has changed. . . . The district court determined that Naples “has continued to pay the annual fee for the NPDES permit” after receiving additional evidence on remand. The district court concluded that “it is absolutely clear that [Naples’s] discharge of pollutants without a permit is not reasonably likely to recur,” based on its review of the parties’ submissions on remand and the trial record. Because I see no clear error in these findings, I concur that this case is moot."

I like it when judges are willing to reconsider their position. In light of, as here, new evidence -- or even otherwise.

Valame v. Trump (9th Cir. - Nov. 4, 2025)

Why, exactly, are we publishing this opinion, which affirms in four brief paragraphs the dismissal of a frivolous pro se complaint?

I'm at a loss.

Cocoa A.J. Holdings v. Schneider (Cal. Ct. App. - Nov. 3, 2025)

I'm honestly not sure who to root for here. Do I root for the owner of a fractional timeshare in a condo complex near Ghirardelli Square who really, really likes to litigate against the condo association? Or do I root for the condo association, who seems equally committed to squashing that particular owner?

It's hard. Because I'm not really feeling a lot of love for either of them.

For now, though, the condo owner wins, as the Court of Appeal affirms the grant of his anti-SLAPP motion.

Hopefully the parties will at some point simply agree to separate peacefully.

It's not a great union.

People v. Guevara (Cal. Ct. App. - Oct. 31, 2025)

The Court of Appeal holds that defendant's attorney was constitutionally deficient for, among other things, not filing a brief for over a year and a half (despite numerous extensions), and on that basis reverses and remands. The Court also forwards its opinion to the State Bar. All of that makes sense when one reads the opinion.

But I wonder why the opinion -- presumably deliberately -- leaves out the name of defendant's attorney. It's definitely something I'd want to know. Particularly if I was a defendant who also had that lawyer represent me, or if I was thinking about retaining that lawyer currently.

An interesting omission.

People v. Sevilla (Cal. Ct. App. - Oct. 27, 2025)

Defendant has no criminal history, is a productive member of society and supports a family. He was nonetheless found guilty of voluntary manslaughter for the following facts. 

What sentence do you think he received -- or, alternatively (or in addition), what sentence do you think would be appropriate?

"In the early hours of November 6, 2020, Sevilla used his employer’s company truck to commute to work from his home in Oakland. In the truck, he carried a loaded .45 caliber semi-automatic handgun that he had purchased illegally. During the drive, he encountered a woman—the victim in this case—in an area he knew was frequented by prostitutes. The victim approached the truck at a traffic light, and she offered to engage in an unspecified sex act for money. Sevilla agreed. 

The victim got in the truck and directed Sevilla to drive to a nearby park. The victim texted someone throughout the drive. Once they arrived at the park, she continued to text, and then she asked for $200. According to Sevilla, he took out roughly $500 in cash from his pocket, and the victim pulled out a gun and demanded it all. After Sevilla surrendered his money, the woman got out of his truck, ran across the street, and got inside a car that was parked with the lights off. Surveillance video captured the victim jog across the street and enter the car, but it did not show what took place in the truck, nor did it show that she was carrying cash or a gun.

The two vehicles sat still for about two minutes until Sevilla decided to confront the occupants of the other car. He retrieved his handgun from under the passenger seat as he made a three-point turn, pulled up next to the car, and turned on his headlights. The driver of the car, Samuels, rolled down his window, and Sevilla partly lowered his window. Samuels then produced a large handgun.

Sevilla testified that, after a brief verbal exchange, Samuels fired at him. Sevilla said he felt two bullets go past his head and the truck window’s glass rain down on him. Sevilla further testified that, in response to being shot at, he “grabbed the firearm,” “racked the slide,” and “shot off two shots” “[t]owards the driver[,] [t]owards the car,” even though he “knew” both Samuels and the victim were only three to four feet away in the car.

The surveillance video captured the gunfight but did not resolve who fired first. Nor did the surveillance video capture what happened inside the two vehicles. The physical evidence showed that, in total, counting both of them, Sevilla and Samuels fired five to six shots from two different guns. 

Without checking to see if anyone had been hurt, Sevilla sped off and drove to work. He had, however, shot the victim in the head. Samuels drove her to the hospital where she later died."

In short, during a robbery, the robber and the victim get into a shootout and one of the robbers dies. The victim could have let the robber go, but doesn't. Both the robber and the victim shot at each other. What sentence for the victim of the robbery/perpetrator of the voluntary manslaughter?

Answer (at least in the present case) . . . .

Over 21 years in prison.

U.S. v. VanDyke (9th Cir. - Oct. 27, 2025)

It's a Second Amendment gun case in the Ninth Circuit, involving someone named VanDyke who was under a harassment no-contact order for repeatedly stalking his victim. VanDyke claimed, successfully in the district court, that the Second Amendment entitled him to have a weapon, including but not limited to bringing his handgun to the courthouse (which he did).

I know what you may be thinking. No. It's not that VanDyke.

This case involves Ryan VanDyke. From Idaho. Here's what he did:

"In May 2023, Ryan VanDyke walked into an Idaho state courthouse carrying a fully loaded Smith & Wesson .38 revolver. At the time, he was subject to a civil protection order and a no-contact order and faced a felony stalking charge—all because he had persistently ignored court orders to stay away from a woman who wanted to escape his prolonged harassment."

When I first read the caption, I knew it wasn't Judge VanDyke, since the defendant's first name was Ryan rather than Lawrence. I also immediately looked to see if Judge VanDyke wrote the opinion, or was on the panel. Nope.

The opinion is instead written by Judge McKeown. It reverses the district court, holding that the Second Amendment does not grant Mr. VanDyke the right to possess a weapon in this particular setting.

But I was kinda hoping to hear Judge VanDyke's views on this one.

If only because it's not a totally common name.

Gilbert v. 7-Eleven, Inc. (9th Cir. - Oct. 24, 2025)

I do not disagree with anything Judge Sung says in this opinion. Yes, the plaintiff here -- a disabled person -- deliberately visited the 7-11 store at issue with the express hope of finding obstacles that he could then file a lawsuit about. He'd be hard pressed to argue otherwise, since he's previously filed 70 other ADA lawsuits, and that's fairly clearly why he chose to visit this particular store. (Plus, he's currently deceased, so he'd be hard pressed to personally argue anything, but that's an entirely different mater.)

But that doesn't negate his lawsuit. The relevant statute doesn't say anything about the plaintiff's intent. Here, the plaintiff was, in fact, injured as a result of the barriers he faced. It made them more difficult to get around. That's all that's required. So he gets his statutory minimum $4,000 in damages.

(His lawyer, of course, gets a ton more, which is really what the economics of the lawsuit is all about. But that's a sub rosa issue doctrinally irrelevant to the current appeal.)

Again, everything that Judge Sung says is correct. Zero problem with it on my end.

Let me just nonetheless say two things.

First, to me, there's a serious tension between this doctrinal reality and the typical standing requirements. As a practical matter, the reason that intent doesn't matter under the relevant statutes is because we want disabled plaintiffs to root out the underlying evil (the lack of accommodations) even if discovering such obstacles and filing a lawsuit is what motivated the plaintiff to go out there in the first place. That's fine, of course. We do indeed want businesses to be accessible, which is why (1) we have the law, and (2) allow individuals to enforce by filing suit. The fact that this individual plaintiff encountered an obstacle solely because he went out looking for it doesn't matter. We want the law to be enforced, and if fee-motivated plaintiffs is one way in which that law gets enforced, so be it. We're fine with that.

But if that's the case -- and it undoubtedly is -- then why require an underlying injury at all? Why shouldn't a non-disabled person be able to sue as well? After all, they're a person, and they're equally able to spot, and file lawsuits, about non-accessible spaces. Why do we encourage only disabled people -- the ones with the least ability (oftentimes) to travel -- to motor around a city looking for these problems? Why not hold that everyone has standing to sue? (As we indeed do with, say, "testers" in housing discrimination suits.)

Second, I wonder if the better argument for the defendant in cases like this is a fair piece different from the one made by appellants here. Defendants' argument centers on claims that the plaintiff wasn't a "bona fide" customer and things like that. Arguments that the Ninth Circuit correctly rejects.

Perhaps a better argument would be to assert that plaintiffs like this one aren't actually "injured" by the underlying barrier. After all, they went looking for those barriers, and were hoping to find them. It's hard to argue that one suffers harm from something that one is actively seeking out and hoping to encounter. Indeed, the real injury would be if the plaintiff didn't discover a barrier. In such cases, their time and effort would be for naught. If you asked them: "How'd it go on your trip outside today?", if they didn't encounter an ADA violation, they'd honestly say "It sucked; a waste of time and money." Whereas if, as here, they did, they'd say "Fantastic: I found exactly what I hoped to fine, and that makes me happy." It's at least facially difficult to argue that one in fact suffers harm when one obtains precisely the thing that one desires. A kiss on the cheek is a harmful assault if that's not what you're looking for, whereas it's not an injury at all if that's how you hoped the evening would end.

So an interesting case, and one that turns out right. But that nonetheless raises interesting questions, I think.

County of Los Angeles v. Quinn Emanuel (Cal. Ct. App. - Oct. 23, 2025)

My old law firm -- Quinn Emanuel -- loses its appellate attempt to recover $1.7 million in fees and costs that it expended on behalf of its client, former Sheriff Alex Villanueva.

That hurts, of course. It's $1.7 million.

Though I am extraordinarily confident that the firm, and its partners, remain far from poor.

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.