Krug v. Board of Trustees of Cal. State Univs. (Cal. Ct. App. - April 1, 2025)

There are lots of reasons why it's better to be employed by a private university rather than a public one. Add this to the list. The Court of Appeal holds that Section 2802 of the Labor Code, which requires employers to reimburse employees for their reasonable on-the-job expenses, doesn't apply to state employees, including faculty at public universities.

There are other ways, of course, in which teaching at a public university is superior; in particular, in the protections afforded by the First Amendment and the Due Process Clause, which apply in public schools but substantially less so in private schools.

Still. Definitely not perfect to be on the faculty at a public university. Lots of downsides. 

(Admittedly: Still a great job, though.)

Winter v. Menlo (Cal. Ct. App. - April 2, 2025)

Yeah, sorry. It's a conflict. You're disqualified for that.

Justice Viramontes' opinion is 30 pages longer than that, and has more exhaustive detail, but honestly, it's to the same effect.

Miles v. Gernstein (Cal. Ct. App. - March 31, 2025)

I'm 100% down for this decision. Seems eminently correct both as a legal and equitable matter. If you want to be a surrogate with no relationship whatsoever to the resulting child, and the other person is okay with that, so be it. We'll enforce that agreement.

Even if you change your mind seven years later.

People v. K.D. (Cal. Ct. App. - March 28, 2025)

This is a tough situation all around, honestly.

F.P. is driving a car with tinted windows in Ukiah and leaves the vehicle to run a (hopefully super quick) errand. She leaves the keys in the vehicle. Oh, also, in the back seat, she leaves her one year old son.

Fear not. The child is fine.

But shortly after F.P. gets out of the car, K.D. -- a 29-year old woman -- hops in, hits the gas, and drives away.

It's unclear whether K.D. knows that the baby is in the vehicle at the time she steals it. Regardless, it's still grand theft, and maybe kidnapping as well. Thankfully, the vehicle gets recovered fairly rapidly, around two miles away, and the baby is okay.

Here's the thing about K.D., though. She's really quite intellectually challenged. I mean: A lot. Here's some of what the opinion says in this regard:

"Dr. Holden evaluated defendant in July 2021 and concluded that she was not competent to stand trial. He opined that defendant “[fell] far short of the legal standard for competency to stand trial, having little factual and rational understanding of legal proceedings and an impaired ability to consult with her attorney in conducting a rational defense.” . . . .

Dr. Wright observed that defendant had dropped out of school in sixth grade, she was not able to write a grammatically correct paragraph or read an analog clock, and she did not know the months of the year. She scored “[e]xtremely [l]ow” on scales of verbal comprehension, perceptual reasoning, working memory, and processing speed. Her percentile ranks ranged from 0.1 to 2, and her performance placed her full scale I.Q. at 55 (0.1 percentile)."

So, on the one hand, you can potentially put K.D. in a diversion program for that. Since, honestly, she clearly needs a ton of help, and just dumping her in the hoosegow probably isn't going to help things much.

At the same time, though, this was a serious offense -- the baby could have been physically hurt, after all, and the mother was surely traumatized -- and this is also most definitely not K.D.'s first run-in with the law:

"The prosecution filed a declaration opposing diversion. The prosecution cited the victims’ trauma, RCRC’s original recommendation against diversion, defendant’s “conscious deceitfulness” in giving false names to police, her criminal history, and the violent nature of the crimes charged; the prosecution further argued that defendant was a flight risk. The prosecution maintained that the facts of the crime alone should cause the court to determine the offenses defendant committed were not worthy of diversion, and the prosecution concluded that “[t]he time has come for real and meaningful consequences for this defendant that can only be realized by more restrictive and punitive measures, not less.” . . . .

Defendant’s criminal record consisted of seventeen misdemeanor convictions and one felony conviction in the counties of Fresno, Tulare, and Madera between June 2009 and September 2019, including receipt of a stolen vehicle, drug possession, using or being under the influence of a controlled substance, possession of drug paraphernalia, disorderly conduct, and providing false identification. Defendant’s 2018 felony conviction was under section 496d. Defendant had been granted probation numerous times, including formal probation for her felony conviction, and her probation had been revoked eight times. She had two outstanding bench warrants related to misdemeanor charges in Tulare County. While on felony probation, defendant had not stayed in contact with probation as directed, and she failed to follow through with any court-ordered rehabilitative services."

A toughie for sure.

Honestly, I'm glad I wasn't responsible for deciding this one. Either in the trial court or on appeal. It's not one where I have a definite and firm conviction about which way to go.

Something to think about over the weekend, perhaps. 

American Federation v. City of Los Angeles (Cal. Ct. App. - March 27, 2025)

I definitely know that the last line here sometimes appears in the opinion itself, but do not recall seeing something like this in the actual caption:

"ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING; THERE IS A CHANGE IN APPELLATE JUDGMENT"

(Capitalization and bold in the original.)

Do you really say that last part in the caption itself?

Not that it matters, of course. Just wondering.

In re J.D. (Cal. Ct. App. - March 25, 2025)

Stealing a cell phone from one person at the shopping mall at 2:30 p.m. is a different offense than punching someone 5:00 p.m. at that same shopping mall and stealing their cell phone as well. The prosecution can charge those offenses separately. 

So holds the Court of Appeal, in an opinion that is both concise (seven pages) and sensible.

It might be one thing if both offenses involved solely the stealing of a phone, or if both offenses involved solely punching someone. (Even then, reasonable minds might disagree about whether that's one offense or two given the two-and-a-half hour gap between the crimes.) But punching someone and stealing their phone is definitely different than simply stealing someone else's phone two and a half hours earlier.

Makes sense to me.

In re H.M. (Cal. Ct. App. - March 24, 2025)

From today's opinion:

"In April of 2023, the department responded to a referral that mother and newborn H.M. both tested positive for 'Cannabinoids/THC and amphetamines.' Mother denied substance use and declined to provide a urine sample. Father acknowledged knowing that mother used methamphetamine throughout her pregnancy. Father tested presumptive positive for amphetamines, methamphetamines, and THC, which he claimed was due to having had sex with mother, who was using drugs. H.M. was placed into protective custody. . . .

In May of 2023, the department met with mother and father to discuss paternity. Both acknowledged that father was not H.M.’s biological father, although he did sign the appropriate paperwork at the hospital that he intended to be H.M.’s father. Mother refused to say who the biological father was. . . .

[B]oth mother and father refused to sign any substance use testing guidelines and were not participating in random testing. Both had tested positive for amphetamines and methamphetamines, and presumptively positive for THC on three separate occasions. . . .

On June 8, 2023, the department attempted to contact H.M.’s other potential biological fathers. One, Benjamin D., stated he was not interested in ascertaining whether or not the child was his and did not want to become involved in the case. The department was unable to locate another, Justin M. The third, Ruben D., was in custody in jail and refused to take a DNA test, stated there was no possibility that he was the father. . . .

On July 18, 2023, mother completed a psychological review stating that her adoptive mother passed away when mother was 14; her adoptive mother’s brother, who mother considered a father figure, had passed away from cancer; and her sister had died from a fentanyl overdose. Mother stated that she did not really know her biological family and felt that her cousins were strangers. . . .

The six-month review hearing report recommended . . . that family reunification services be terminated for both mother and father and a section 366.26 hearing be set. Neither mother nor father had followed through on the reunification plan."

Lovely all around.

(From Tuolumne County, if you're wondering. Largest city: Sonora, population 5003.)

Mayfield v. City of Mesa (9th Cir. - March 24, 2025)

Maybe everything didn't go perfectly 100% smoothly, but I have to agree with Judge Collins that it went sufficiently fine such that the DUI stop of Ms. Mayfield, who was deaf, didn't violate the Americans With Disabilities Act even though she wasn't provided with a sign language interpreter. She sufficiently understood everything via messages typed on the officer's cell phone plus a little bit of writing, gestures, lip reading and the like.

Here's another example of where body worn cameras help out a lot; in this case, in the police officer's favor.

(Plus, as an aside, I thought it fairly favorable for Ms. Mayfield that they let her plead down to reckless driving as opposed to an actual DUI.)

Escamilla v. Vannucci (Cal. Supreme Ct. - March 20, 2025)

I'm happy that the case came out this way, and I think it's the right rule. But unlike the California Supreme Court, I don't think that's what the statute actually says.

It's a statute of limitations questions. Everyone here knows that there's a special one-year SOL for clients who want to sue their lawyer for malpractice etc. At the same same time, there's a residual two-year SOL for regular old torts. (I'm simplifying things, of course; there are complexities, tolling provisions, etc.)

Which one of these applies when a non-client wants to sue a lawyer for alleged professional misconduct by that lawyer (here, alleged malicious prosecution)? One year or two years?

The Courts of Appeal had split on this issue, so the California Supreme Court helpfully granted review.

Here's the relevant one-year statute. Read it. When a non-client sues a lawyer for conduct that (admittedly) arises out of the lawyer's provision of professional services (e.g., filing a lawsuit), does it apply?

“An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.”

The California Supreme Court declares that this statute is "ambiguous" in the setting presented, and on that basis, it looked to legislative history, policy and purpose to hold that the two-year statute, rather than the one-year statute, applies.

By contrast, I don't think that the actual text of the statute is "ambiguous" at all.

The case before the California Supreme Court involved a malicious prosecution cause of action: a claim that an attorney wrongfully filed a lawsuit against a non-client. That lawsuit is surely "an action against an attorney." It indisputably arises out of an alleged "wrongful act omission . . . arising in the performance of professional services" (i.e., filing a lawsuit). Everyone agrees that the lawsuit is not for "actual fraud." And no one even asserts that the action was commenced more than a year after the "plaintiff" (the non-client) discovered or should have discovered the wrongful act.

Those are the words of the statute. Under the text, the one-year statute applies.

The California Supreme Court says that the statute is "ambiguous" because it doesn't expressly say whether it applies solely to lawsuits filed by a client or whether it also applies to lawsuits filed by non-clients. But I can't figure out which word of the statute is even arguably ambiguous. "Plaintiff" means plaintiff. That meaning word doesn't depend on whether the plaintiff is a client or non-client of the lawyer. So if you follows the actual text of the statute, I think it's dispositive.

To someone like me, mind you, that's not necessarily the end of the inquiry. Even if the words (the "command") of a statute aren't ambiguous, in my opinion, we can still look to structure and purpose to figure out whether those words really mean what they say. And I agree with the California Supreme Court that the Legislature did not, in fact, mean to apply that one-year statute of limitations to lawsuits (like here) that involve non-clients.

I just don't think it's really true that the statute is textually "ambiguous." I think that's a construct. I think that the text is really quite clear, but in the modern textualist era, the Court has said so many times that unambiguous text is the be-all-end-all that there's no way to doctrinally come out the correct way here unless the Court says that the text is instead ambiguous. So, okay. Presto: "The text is ambiguous." Now we can interpret the statute in a way that the Legislature likely intended and that makes the world a better and more rational place.

One more thing. I think I've got an even better analogy/hypothetical than the Court introduces here -- or at least an additional one.

Once it finds the statute purportedly "ambiguous" and thus may permissibly assess policy and intent, Justice Corrigan concludes her opinion by saying that "[o]ur construction of section 340.6 avoids the potential unfairness that would arise from applying different statutes of limitations to claims for the same alleged misconduct depending upon whether the suit is brought against an attorney or client." She then discusses examples of that type of unfair (or at least irrational) disparity, including a complicated three-page discussion of how tolling principles would apply to clients versus non-clients in various settings.

Here's an even more straightforward example that came to my mind of the problems of reading the one-year statute literally.

Imagine that a lawyer is late for a scheduled hearing, speeds to get to the proper department, and while turning a hallway corner (or perhaps even while driving to the courthouse), accidentally hits someone, seriously injuring them. The resulting negligence cause of action would be (1) "an action against an attorney," (2) "for a wrongful act or omission," (3) "other than for actual fraud," (4) "arising in the performance of professional services" (i.e., speeding to court). So the one-year statute textually applies. But if it was a non-attorney who did the same thing, the usual two-year statute would apply.

Why would the victim care whether she was hit by a lawyer or nonlawyer? Why should the limitations period be shorter if the person hit happened to be a client? How would the victim even necessarily know whether the person who hit her was a lawyer or not, and hence whether the one-year statute applied? (There's no tolling period in the one-year statute for not knowing that someone's a lawyer.) If the lawyer hit two people -- one a client, one a non-client -- would two different statute of limitations really apply? If the lawyer was driving a car (or Segway) owned by a non-lawyer, would a different really apply to the claim against the lawyer versus the owner of the vehicle? All of these potential distinctions would seem silly, bizarre and irrational.

So I'm on board for applying the two-year statute to claims, as here, by non-clients.

I just wouldn't say that I was doing so because the statute was textually "ambiguous." Because I can't find a word, or phrase, in the statute that actually is.

U.S. v. Parvis (9th Cir. - March 19, 2025)

Masha Parvis goes to Texas to kidnap her biological daughter, over whom her parental rights had been terminated and who's with a foster family who's gotten a restraining order against Ms. Parvis. Her goal is to kidnap the kid and take her out of the United States forever. To do so, Ms. Parvis need to get the kid a passport, and she does so, by lying on the child's passport application in various ways (e.g.., by saying the kid is severely ill and that Ms. Parvis is still her legal mother, which she's not).

Ms. Parvis gets arrested when she goes to steal the kid. Texas prosecutes her for attempted kidnapping, and the United States thereafter prosecutes her for lying on the passport application.

Her state court sentence for attempting to kidnap the child? Less than two years. Out in one.

Her federal sentence for false statements on a passport application? Three years.

Doesn't it seem like you should (maybe just maybe) get more prison time for trying to kidnap a child than for lying on a passport application?

People v. Padron (Cal. Ct. App. - March 17, 2025)

This is bold.

You get to withdraw your prior guilty plea in California if you can establish that you didn't understand at the time the prior immigration consequences of that plea. You don't have to prove ineffective assistance of counsel; it's enough that you personally didn't understand them.

Misael Padron files a declaration that says basically exactly that. He pled no contest to carjacking in a case in which he pretty definitely was going to get convicted. He faced a potential sentence of 10 years, but due to his plea, he only got three. In return for the carjacking plea, the prosecution dismissed charges of theft of a motor vehicle, vandalism, and hit and run with property damage, charges that almost certainly would have stuck if Mr. Padron had gone to trial.

The problem for Mr. Padron is that he's not a citizen, and instead got asylum from Cuba, and a conviction for carjacking results in mandatory deportation.

So six years after his conviction, in 2022, he moves to withdraw his plea. He submits declarations from himself and some other witnesses claiming that he didn't understand that he'd be deported if he pled no contest, and a declaration from an attorney that said that there were some lesser charges that he could have potentially pled guilty to that wouldn't have resulted in mandatory deportation.

The trial court denies the petition. The Court of Appeal reverses, and orders the trial court to grant the petition and vacate the convictions.

Here's the evidence on which the trial court found that Mr. Padron did, in fact, understand the immigration consequences of his plea deal (notwithstanding his contrary declaration):

(1) Mr. Padron signed and initialized a plea form, also known as a Tahl waiver, titled “Immigration Consequences" that expressly said: “I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.”

(2) At the plea hearing, in open court and on the record, the prosecutor told Mr. Padron: “If you are not a citizen of the United States, your conviction in this case will result in your removal, deportation, exclusion from the U.S., and denial of naturalization."

(3) At that same plea hearing, on the record, the prosecutor asked Mr. Padron: "Have you discussed the immigration consequences with your attorney?” Padron responded that he had. 

(4) At that hearing, the prosecutor also said to Mr. Padron: “[D]o you understand that the district attorney’s office will not extend an offer that has no immigration consequences?” Padron answered yes.

(5) Mr. Padron offered no testimony or declaration from his public defender, but that attorney's notes from shortly before the plea deal was accepted state that Padron “now wants . . . offer of 3 yrs. state prison (on ct. 1 (P.C. 215(a) only) . . . even though [defendant] knows (and fully advised) that ct. 1 is a ‘future’ strike and is a ‘violent’ offense.” The attorney's notes also reflect that Padron accepted this plea on May 9, 2016 and was “advised of potential imm. csqs.”

(6) There's little to know hope that had Mr. Padron elected to go to trial, he'd have avoiding being found guilty of carjacking anyway given the substantial evidence against him. Nor is there any real reason to believe that the prosecutor would have offered a plea deal that didn't involve Mr. Padron being subject to deportation. Mr. Padron was a three-striker, having served two prior felony terms in prison, and the prosecutor expressly said during the plea hearing that the officer would never give him an "offer that has no immigration consequences."

Given this evidence, you can see why the trial court might well have decided that Mr. Padron did not meet his burden of proof to establish that he was, in fact, ignorant of the immigration consequences of his plea. Or at least I can.

The Court of Appeal nonetheless reverses, holding that the above evidence isn't necessarily dispositive given Mr. Padron's limited contact with his attorney and his PTSD. I can see that. It's possible that a neutral person evaluating the evidence might decide that Mr. Padron was telling the truth and didn't understand that he'd be deported notwithstanding all this contrary evidence. (It'd be tough, I think, to come to that conclusion, but it's definitely possible.)

But it's hard to see how this would cause Mr. Padron any prejudice that would justify relief given that he'd almost certainly be convicted of a deportable offense anyway. If he went to trial, he'd have been convicted. Of that I'm virtually certain. It might have been theoretically possible for Mr. Padron to have pled guilty to a non-deportable offense -- for example, "witness tampering" -- that still contained a three year sentence. But there's zero evidence here that the prosecutor would have offered or accepted such a hypothetical deal, especially since Mr. Padron was a three-strike offender and the prosecutor stated at the plea hearing that there'd be no deal without immigration consequences. If the failure to understand immigration consequences causes absolutely no harm -- if the result would have been no different either way -- I'm unclear those set of facts should entitle a petitioner to relief.

And I don't understand how the Court of Appeal can order the granting of the petition on remand. Even if the trial court erred, it'd certainly be within the province of the trial court to decide that it simply did not believe Mr. Padron, right? Admittedly, no such finding was made by the trial court here -- it simply resolved the issue on the declarations. But that's because it thought that the documentary evidence was so clear that no such hearing was required (and the prosecutor's office thought the same thing). I would think that a remand would be required to decide whether Mr. Padron was telling the truth, at a hearing at which, perhaps, the public defender might also be called as a witness to testify to precisely what was said to Mr. Padron before he accepted his plea. It's true that all of that was unnecessary before, but that's because the trial court thought (wrongly, according to the Court of Appeal) that the evidence was not in sufficient dispute to create a genuine issue. Now that the Court of Appeal has held that it does, we can't just assume that Mr. Padron is telling the truth, can we?

It just seem bold to me to direct a granting of the petition. Maybe, despite all the contrary evidence, Mr. Padron did not, in fact, understand the immigration consequences of his plea.

But maybe he did.

Talbott v. Ghadimi (Cal. Ct. App. - March 18, 2025)

Today's Court of Appeal opinion is doctrinally important in its own right, since it takes a position on an existing appellate split:

"We conclude Ghadimi was entitled to relief under the mandatory provision of section 473, subdivision (b). In doing so, we follow Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008 (Solv-All), where the court held a defendant may be entitled to relief under the mandatory provision of section 473, subdivision (b), even where the attorney makes a bad strategic decision, rather than Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058 (Jerry’s Shell), where the court held such relief may not be available in that situation."

But even if you don't care about the underlying doctrine, it's a neat opinion to read, if only because it (1) quotes liberally from many of the major cases regarding attorney civility, and (2) involves attorneys who, to put it generously, did not exemplify the height of these ideals.

It's easy to get angry at your opposing counsel. It's sometimes difficult to keep one's cool.

Try.

Lake v. Gates (9th Cir. - March 17, 2025)

I have a different perspective than both Judge Gould (who authors the majority opinion) and Judge Bumatay (who authors the dissent) in this one.

I agree with Judge Gould that Alan Dershowitz signed a paper -- a complaint -- that contained frivolous allegations. But he signed that complaint as "of counsel" (though he signed a later frivolous motion containing similar claims as "counsel" for the party, which he claims was "a mistake") for the party.

Dershowitz asserts that he was only responsible for a particular paragraph (paragraph eight) of that complaint, so he couldn't be sanctioned for anything else. Is he right?

Judge Gould says that he could be sanctioned for the whole thing, but nonetheless reverses the sanctions here because before today's opinion, the ability to sanction lawyers who are "of counsel" was unclear. Judge Bumatay agrees with the reversal of sanctions, but thinks that "of counsel" lawyers should be subject to more lax standards even prospectively.

I disagree.

To me, if you sign a complaint (or any other filing, for that matter), you're signing the whole thing, unless you expressly say otherwise. Period. Doesn't matter if you're a partner, associate, of counsel, or whatever. If you sign it in toto, you're responsible for whole thing. You're not permitted to retrospectively argue that you were only signing it with respect to a particular portion.

By signing the complaint, Dershowitz obtained advantages both for himself and for his client. He got the advantage of being a designated attorney in a high-profile election challenge. His client got the advantage of having a big name attached to his pleading that attested to its seriousness.

If Dershowitz had signed this pleading and said "But I'm only attesting to the validity of Paragraph 8," both he and his clients wouldn't have obtained those advantages. And the other side would know that Dershowitz wasn't responsible for -- and couldn't be sanctioned -- for anything else.

But Dershowitz deliberately didn't do that. He signed the whole thing, without exception or caveat.

My rule, both prospectively and otherwise, would be this:

Anyone who signs a paper under Rule 11, whatever their role, is responsible for the entire paper unless somewhere in their signature they represent to the Court that they are only certifying a specified portion of that paper.

That's what I've always thought the rule was. That's what I continue to think the rule should be.

If I sign a public petition, or an amicus brief, or anything else, I'm singing the whole thing, and I don't sign it if there's something in it that's flatly untrue. What's true there is equally true -- if not more so -- for filings in federal court. If a Ninth Circuit judge puts their signature on an opinion, that's a sign that they agree to the whole thing. If they don't, they say so at the time, in a concurrence or otherwise. It's wrong -- as well as fundamentally unfair -- for someone to be able to retrospectively say "Oh, well, yeah, that's my signature at the bottom, but I only meant to sign for part of it -- the part to which you don't object." That's not the way the world works, nor should federal court work that way.

I've been "of counsel" to plenty of things. I'm more than happy to follow the proposed rule I advance herein.

So should everyone. Signatures are signatures. Lawyers are lawyers. You either mean what you sign or you say the parts to which you don't mean. Period.

Kaushansky v. Stonecroft Attorneys APC (Cal. Ct. App. - March 14, 2025)

Here's a good law review topic for someone looking to write a doctrinal piece:

Is a legal malpractice plaintiff required to prove that the underlying judgment that he would have obtained against the underlying defendant is collectible?

The rule in California is: Yes. Which is why the Court of Appeal here reverses a $91,734.29 malpractice award against an attorney (though affirming the $25,000 award for emotional distress).

It's somewhat unfortunate. I have very little doubt that the plaintiff here could have established that the underlying judgment would have been collectible. Most likely, her lawyer simply didn't realize that this was an element of the cause of action.

(Which, ironically, might arguably mean that her legal malpractice attorney committed malpractice. Oops.)

But, at trial, since there was no substantial evidence (or really any competent evidence at all) of the landlord's wealth, or insurance, or any other ability to pay the judgment, the judgment cannot stand.

At the same time, both the majority and the concurrence cogently argue that collectability should not be an element of the plaintiff's case. I agree.

I might perhaps not go as far as some (or all) of these justices. I do think it's an issue, since if the judgment isn't collectible (or saleable, etc.), then there's no damages. But I think it should be an affirmative defense on which the defendant has the burden of proof. Because most judgments are presumptively collectible (or saleable). So in those minority of occasions in which it's not, let's allocate the burden of proof to the party most able to raise the issue -- the defendant. Makes sense. I'm sure the defendant will raise the issue if, in fact, the underlying judgment debtor would have been judgment proof. They'll have every incentive to so argue.

And, yes, I know that "damages" are part of "plaintiff's" case, and proving that the judgment could have been collected is arguably part of damages because no collection means no damages. But we have any number of legal presumptions that reflect the modern world and allocate appropriate burdens of proof and/or production. Res ipsa. Presumption of sanity. Presumption of paternity. All sorts of stuff. It's just fine to allocate burdens based on such things. It'd be entirely appropriate to add "presumption that legal (and medical, and whatever) malpractice judgment is collectible" to the list.

At some point, it'd be great if the California Supreme Court said so.

Which it could do, I think, quite concisely.

There you go. I just basically wrote the article for you. Flesh it out with a few hundred footnotes over 50 or so dense pages, all of which add very little of substance to the above, and you're a published author.

U.S. v. $1.1 Million in Currency (9th Cir. - March 11, 2025)

I think Judge Bress is right.

The government wants civil forfeiture of $1,106,775 in cash that it seized from Oak Porcelli when it stopped him on I-80 in Nevada and found it vacuum-sealed in his SUV. Personally, I'm very inclined to believe that the government is correct that these funds are ill-gotten (and thus forfeitable), but that's what the trial's going to be about.

Prior to trial, the government propounded some interrogatories to Mr. Porcelli, as it's entitled to do. But there's obviously some potential self-incrimination at stake here. So the rule is that the interrogatories can only be about Mr. Porcelli's standing to object to the seizure, not its merits.

Mr. Porcelli says, yes, it's my money, and yes, I say it's mine, so yes, I have standing to contest the seizure. He also gives a tiny little bit of detail about where he contends the money legitimately came from: i.e., "by working in the movie industry for 15 years." But he didn't go into exhaustive detail. He says, though, that he doesn't have to: that if the only permissible issue is standing, then obviously he has standing, since he claims that the money is his, and that his responses are accordingly all that's required.

The trial court disagreed, and struck Mr. Porcelli's claim to the money as a sanction for his refusal/failure to answer the interrogatories completely. The Ninth Circuit affirms. Judge Bress dissents.

It seems to me that the dissent is correct. Here's the relevant legal rule: In civil forfeiture cases, the government can only use interrogatories to "seek information about a claimant’s standing— meaning, his 'identity and relationship to the defendant property.'" If that's the case (as it undoubtedly is), it seems to me sufficient to simply identify who you are, and that you claim to own it, and to provide the most minimal of details about how you got it; i.e., your "relationship to the property". Saying "I own it because I earned it through my work" seems entirely responsive (and sufficient). The rest is the merits, and for trial.

Judge Bress waxes poetic about the dangers of the majority's contrary approach, and there's a lot to be said for that.

But even just as a matter of text and purpose, the dissent seems more persuasive to me than the majority opinion. Mr. Porcelli's clearly got standing to object. He claims the money is his. Everything else is simply a fight about whether he's right that he earned the money legitimately.

Kuo v. Dublin Unified School Dist. (Cal. Ct. App. - March 12, 2025)

Next time you need an excuse not to volunteer at your child's public school, use this opinion.

"But honey, since I'm a volunteer, if I die there, you won't get any money, even if it's the result of the school's negligence. I'm just looking out for you and the kids."

It's not going to get you out of watching a school play (or swim meet), but it's something, eh?

Bussey v. Driscoll (9th Cir. - March 12, 2025)

Someone might well describe this Ninth Circuit opinion as follows:

"Ninth Circuit holds that soldier discharged for rape deserves honorable discharge."

Some would argue that such a description would be factually inaccurate. For example, the court martial jury only found him guilty of "wrongful sexual conduct," not rape. Though the Ninth Circuit describes the relevant facts as follows: "After she declined Bussey’s request to “cuddle,” she said he picked her up, took her to the bed, and began removing her clothing. She said she repeatedly told Bussey to stop and that she did not want to have sex with him, but he forcibly held her down and penetrated her." Which at least sounds an awful lot like rape.

Some might also argue that the Ninth Circuit didn't necessarily say that Mr. Bussey deserved an honorable discharge, and rather merely reversed the grant of summary judgment to the government and said that the soldier might perhaps be able to demonstrate that PTSD from Afghanistan "contributed" to his decision to unlawfully sexually assault the victim.

But others might well respond that PTSD isn't an excuse for raping someone and/or that someone who is found guilty of unlawfully sexually assaulting someone while in the military should not be granted an honorable discharge, period.

PTSD or no.

Regardless: I submit the opinion to you for your review.

U.S. v. Walthall (9th Cir. - March 11, 2025)

When you're sitting in jail awaiting trial for a serious offense, you've got a lot of time to think. Sometimes that reality is exceptionally counterproductive to your welfare.

John Walthall was indicted in federal court 2009 for attempting to swindle an elderly couple out of $5.5 million. He fled, but was eventually captured and convicted. While awaiting sentencing, "he told another inmate that he wanted 'to get rid of the people involved in” his prosecution, including “the judge, the prosecutors, and the FBI agents.'" That's a bold plan, of course. But not a very wise one.

Entirely predictably, the inmate snitched, and they transferred Mr. Walthall to a federal prison and put an undercover agent in there as well wearing a wire. Mr. Walthall was subsequently recorded by the agent as saying that "he wanted the murder to be “nice and painful,” with the judge’s arms and legs “cinched” and his body “shoved in a . . . wood chipper.” He also explained that he wanted [the informant] to find an FBI agent involved in his case, “and his wife, and family,” and to “make their bodies disappear.”"

First of all, that's almost certainly not going to happen. Second of all, those statements are likely not going to play well at all when you're subsequently sentenced for attempted first degree murder.

Mr. Walthall's poor decision making didn't end there. He now had lots of additional time in prison to work on his upcoming legal defense to the attempted murder charges. So he prepared and "submitted a 1,664-page document outlining 872 reasons for the district judge to recuse himself and complaining that, while Walthall was in prison, “DOJ/FBI/BOP-employee directed, and controlled Entrapment Officers” had employed “Gangsters, Serial Murderers, and Professional Terrorists, from Mexico, Colombia, and Nigeria” to extort money from him."

The district court denies his request to represent himself, he's found guilty and sentenced to the statutory maximum of 20 additional years in prison, and the Ninth Circuit affirms.

People v. Olmos (Cal. Ct. App. - March 10, 2025)

This is a short opinion. Very short. Three-and-a-half pages. 

It could maybe stand for one more paragraph.

Luis Olmos was convicted of first degree murder in 2001, so that's preexisting bad news for him. He gets additional bad news today: the Court of Appeal decides that his sentence, which was for a murder that he committed when he was 17, isn't the functional equivalent of life without the possibility of parole, so he's not entitled to file a Section 1170(d)(1)(A) petition. So denial of the petition affirmed.

The good news, though, is this. Mr. Olmos thought that he'd be sentenced to 41 years to life, and his briefs on appeal said so. But the Court of Appeal noticed -- and then says in today's opinion -- that he actually was only sentenced to 33 years to life.

So that's eight years less than he thought. We'll count that as a win for him.

It's still a long time, though. But not functionally equivalent to a sentence of life without parole. Which is why Mr. Olmos loses his appeal.

The additional sentence that I wish had been added to the opinion was simply a brief factual recitation of the relevant dates and times. I know from the existing opinion that he was convicted in 2001 for a murder that occurred in 1996. I also know that he received some pretrial custody credits since there was a prior Court of Appeal opinion about that, and I also know that Mr. Olmos was entitled to a parole hearing in December 2024.

But what I don't know, and can't precisely figure out from the opinion, is what age Mr. Olmos will be when his "33 years" runs out. Will he be 50 -- murder at 17, plus 33 years? Will he be 55-- murder at 17, conviction 5 years later, plus 33 more years? Will he be some other age given his pretrial custody credits?

I understand that his sentence isn't equivalent to an LWOP because, apparently, at some age prior to, say, 65, he'll in fact be eligible to get out (even if he doesn't receive time off for good behavior, which I suspect he has, in fact, obtained.) But it'd be very nice to know precisely which age the Court of Appeal is talking about when it holds here that Mr. Olmos' age isn't sufficient to constitute LWOP.

So just one for paragraph -- or even sentence -- maybe? If only so other judges or justices can know precisely what the holding is here.

People v. Copeland (Cal. Ct. App. - March 7, 2025)

 Okay, I guess. But Mr. Copeland should still give back the horse.

(And if Mr. Copeland hasn't done so already, I'm bummed that the reversal of his conviction, and hence the restitution order, no longer requires him to do so.)

Mandell-Brown v. Novo Nordisk, Inc. (Cal. Ct. App. - March 6, 2025)

Unless it involves new appellate counsel desperately trying to correct the errors of a prior representative, it baffles me how someone can (1) entirely fail to respond to a robust summary judgment motion, (2) even after filing and having granted two ex parte motions to continue the MSJ hearing to permit them to file an opposition, and yet (3) try to prevail on appeal.

Regardless, it didn't work. Motion for summary judgment granted and affirmed based on the plaintiff's failure to file a separate statement (or, indeed, anything at all) in opposition.

There's a split of appellate authority on whether the trial court has a sua sponte obligation to make sure, notwithstanding the absence of a separate statement, that the moving party's papers present a prima facie case for summary judgment. The opinion today says it doesn't; at least one other Court of Appeal opinion says it does.

As a practical matter, I don't think it matters much; most unopposed MSJs are going to be granted regardless. But it is an issue that comes up daily in the trial courts, so I suspect the California Supreme Court will eventually have to take the issue up and resolve the split.

If only so trial courts know what to do.

U.S. v. Steinman (9th Cir. - March 5, 2025)

I understand why Judges Milan Smith and Bumatay want to reach out and (entirely unnecessarily) decide this issue the way they want it to come out. But isn't the concurrence by Judge Wu -- sitting by designation from the Central District of California -- just clearly and unambiguously right on this one? 

Here's Judge Wu's take:

"Because we need not—and should not—break new ground today by addressing the undeveloped and potentially sweeping “cross enforcement” issue, I concur with the majority opinion except for Part II.B.1.

As a general rule, we should not decide a constitutional question unless it is necessary to do so. See Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 346–47 (1936) (Brandeis, J., concurring) (‘“It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’” (quoting Burton v. United States, 196 U.S. 283, 295 (1905))); Christopher v. Harbury, 536 U.S. 403, 417 (2002) (highlighting “the obligation of the Judicial Branch to avoid deciding constitutional issues needlessly”). Several panels of this Court have previously declined to address “cross-enforcement” arguments when it was unnecessary to the disposition of the appeal. See, e.g., United States v. Malik, 963 F.3d 1014, 1015 n.1 (9th Cir. 2020) (declining to reach the question of whether a Nevada state officer had probable cause to search based upon federal marijuana laws because the officer had probable cause to search based upon violations of Nevada state law); United States v. Gray, 772 F. App’x. 565, 567 n.2 (9th Cir. 2019). So, too, should we. Because we conclude “without much difficulty” that Trooper Boyer had probable cause to seize Steinman’s BMW based upon a violation of Nevada state law, there is no reason for the majority to consider the question of whether the federal law violation provides another potential basis for probable cause.

Additionally, I cannot join Part II.B.1 because it rests on doubtful assumptions and thrusts Fourth Amendment jurisprudence into a precarious position with no clear limiting principles. This is especially true in the contexts of immigration and marijuana laws, where federal and state priorities often diverge.

Firstly, I find unconvincing the majority’s conclusion that Nevada has an interest in ensuring the federal felon-in-possession-of-ammunition statute is enforced. Unlike the federal government, Nevada could have—but has chosen not to—criminalize a felon’s possession of ammunition. Compare 18 U.S.C. § 922(g)(1), with Nev. Rev. Stat. § 202.360. The majority opinion initially references the Supremacy Clause. But the Supremacy Clause—which “invalidates state laws that ‘interfere with, or are contrary to,’ federal law,” Hillsborough Cnty., Fla. v. Automated Med. Lab’ys, Inc., 471 U.S. 707, 712 (1985) (quoting Gibbons v. Ogden, 9 Wheat. 1, 22 (1824) (Marshall, C.J.))— is not directly implicated here. Furthermore, it is implicit in the concept of federalism that federal and state governments may have different, if not fully divergent, policy and political priorities. See Printz v. United States, 521 U.S. 898, 918–19 (1997) (“Although the States surrendered many of their powers to the new Federal Government, they retained ‘a residuary and inviolable sovereignty.’” (citing The Federalist No. 39, at 245 (J. Madison))). That Nevada has not promulgated its disapproval of the federal felon-in-possession-of-ammunition statute does not establish a converse interest in enforcing it, as the majority assumes. 

Secondly, despite the majority’s apparent attempt to cabin its ruling to the present case, there is simply nothing preventing today’s new rule from being applied in other cases where the “cross-enforcement” issue is more fraught and more common. As this issue arises with some frequency in the context of immigration and marijuana laws, what if a state does not want its officers assisting in the enforcement of federal law? The majority opinion offers no explanation on how today’s rule would not naturally extend to cases where a state has gone so far as to codify its opposition to “cross-enforcement” by its police officers as to a particular federal law. Indeed, the majority opinion assumes only for the sake of argument that state law is even relevant to the “cross-enforcement” issue. . . .

The inescapable conundrum with the majority’s unrestricted endorsement of “cross-enforcement” is that Trooper Boyer—a Nevada state law enforcement officer entrusted to enforce the laws of Nevada—is determined today to have committed no Fourth Amendment violation for seizing Steinman’s automobile based on conduct that is entirely legal under Nevada law. In other words, the majority’s new rule opens the door, as one district court has prudently observed, “to the paradoxical result of allowing state law enforcement officers to defy the state laws they are entrusted with upholding so that they might enforce federal laws which they cannot be compelled to enforce.” United States v. Talley, 467 F.Supp.3d 832, 837 (N.D. Cal. 2020) (citing Printz, 521 U.S. at 918–19).

In the end, the government’s “cross-enforcement” argument is but one of several contentions set forth in this appeal—the full ramifications of which have not been fully developed in the record before us. Because we find “without much difficulty” that Trooper Boyer was justified in seizing Steinman’s automobile based upon a violation of state law, it is unnecessary to reach the “cross-enforcement” issue today. The majority’s decision to nevertheless break new ground does more than start a conversation on a novel constitutional law doctrine—it sweeps with it a whole host of critical Fourth Amendment issues without announcing a rule or limiting principle to be used in future cases. For these reasons, I respectfully concur in the majority opinion expect for Part II.B.1."

That just seems 100% correct to me. Every single point.

Herren v. George S. (Cal. Ct. App. - March 4, 2025)

If you're a trusts and estates attorney, I understand that there are many difficult choices to make sometimes when you're dealing with elderly and potentially incompetent clients (or potential clients). It's a tough one. You want to help them if you can. At the same time, you need to make sure that they're competent to make decisions for themselves.

Here, there's an underlying family dispute between two sisters involving their 86-year old father, who's been declared incompetent. One of the sisters is primarily taking care of him, and is the trustee of his trust, and while she's away, the other sister shows up, brings an attorney, and the attorney meets privately with the 86-year old and has him sign a retainer agreement for $100,000. The attorney then demands to get paid for her services.

There are substantial additional factual details in the Court of Appeal's opinion, but suffice it to say, both the trial court and the Court of Appeal appear to be extremely unhappy with the lawyer's conduct. The trial court finds that the lawyer committed elder abuse and enters a restraining order against her, and the Court of Appeal affirms -- in an opinion the tone of which is often quite bristling.

As I said, if you're an attorney, you want to help out a client if you can. Especially, I suspect, if he's willing to pay you six figures to do so.

But I might think twice about embarking on that path under the situation that existed here. Even if I had gotten the father's signature of the retainer agreement, it was probably unwise to insist upon being paid. One might also have wanted to simply walk away from the thing once the trustee sister asserted a claim for elder abuse and asked for a restraining order. Finally, once the trial court issued one, with a neutral person finding that you've engaged in elder abuse as an attorney, I might have thought twice -- perhaps even three or four times -- about filing an appeal that might result, as here, in a published opinion with your name on it that affirms that finding.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well done. 

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

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

Still, I appreciate the effort.

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

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

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

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

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

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

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

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

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

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

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

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

That sounds wrong, no?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I got a number for both brothers:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Don't be greedy. Even a little.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yay for Plaintiffs.

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

Which is clearly the right call.

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

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

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

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

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