U.S. v. Tekola (9th Cir. - March 9, 2026)

With respect for Judge Owens, I would have dissented in this one.

Issac Tekola is a drug dealer in Santa Barbara. Not a huge one, but not a super tiny one either. He doesn't live in a mansion, or have "associates," or even a stash house. He instead lives in an apartment, and since he lives there, that's where he sometimes deals from. Sometimes he goes out and meets people for a sale. Sometimes they come to his apartment where the drugs are stashed in a shoe outside his apartment's back door. (That the drugs fit in an old shoe may give you a sense of the scale of Tekola's operation.) In short, he's your basic neighborhood drug dealer.

Similarly, the goods he sells are located where he lives. He doesn't have an "outside base" of operations, or a stash house, like big-time dealers. That's where he stores the cash he gets from dealing. (He has $13,000 at the time he's arrested.) That's where the drugs are: a pound of cocaine, 867 pills containing fentanyl, and some fake Adderall pills containing methamphetamine. That's also where all the other stuff associated with drug dealing is located: a safe, pay/owe sheets, scales, etc.

So Tekola gets charged with possession with intent to distribute, and he's facing real prison time as a result. Caught, he pleads guilty to everything, even without a plea deal. He throws himself on the mercy of the district court.

Which is not particularly merciful. At all. Judge Garnett sentences Mr. Tekola to an above-guidelines term of almost nine years in prison. And in doing so, bumps up his sentence pursuant to a provision that enhances the penalty for defendants who "maintain[] a premises for the purpose of manufacturing or distributing a controlled substance."

Mr. Tekola appeals, claiming that he didn't do that. Yes, he lived in his apartment, so that's where he stored his stuff. But that wasn't the "purpose" of living there, he says, so his sentence shouldn't have been enhanced.

Judge Owens, joined by Judges VanDyke and Thomas, disagrees, and affirms.

The opinion explains at length how Tekola used his apartment for drug dealing. Stored his cash there. Stored the drugs there. Got messages there. Sometimes put drugs in a shoe there. All that's undoubtedly true. And Judge Owens talks at length about the commentary to the relevant provision, which expressly says that "[m]anufacturing or distributing a controlled substance need not be the sole purpose for which the premises was maintained, but must be one of the defendant’s primary or principal uses for the premises." (The opinion even italicizes that last part.) The Ninth Circuit concludes that the district judge got it right; that one of Tekola's "primary or principal uses" of the apartment was to distribute drugs there. In the words of Judge Owens:

"Tekola’s apartment was the hub of his distribution network. It was where he stored his drugs and other tools of the drug-dealing trade, where he processed and recorded the drugs he sold, and a default location where trusted customers picked up drugs. Of course, Tekola also conducted drug deals elsewhere, but that additional trafficking does not change the fact that his apartment was the equivalent of a home office for the illicit drug business he ran."

But here's why I would have dissented.

The opinion repeatedly mentions the part of the guidelines commentary that says that the enhancement is appropriate when one of the "primary or principal purposes" of the residence was to sell drugs. But it only one mentions -- and then, even only in passing -- the last clause of that very same commentary, which notes that the enhancement does not apply if the use of the property for drugs was merely "one of the defendant’s incidental or collateral uses for the premises." In other words, if the reason you're using the property in your drug operation is merely because you live there, the enhancement doesn't apply. A conclusion that's also backed up by Ninth Circuit precedent about a related statutory provision.

In my view, here, the evidence shows that that's exactly what transpired here. Of course Tekola had his drugs, cash, scales, and other drug-related materials in his apartment. That's where he lived. Where else was he going to keep them?! On the street? On the moon? The only other place to keep this stuff one might even contemplate was in a stash house. But that's exactly what the enhancement was designed to punish.

Tekola is the classic example of a garden variety neighborhood drug dealer. Bigger than some, perhaps, and definitely smaller than others. If the enhancement is intended to punish Tekola more severely, then it equally applies to pretty much every single drug dealer, every one of which -- or at least every one of them I've known (or of whom I've personally heard) -- keeps their stuff in their home or apartment.

The goal of this enhancement was to pick out certain drug dealers for increased punishment. The ones with stash houses. The ones with special houses where you deal through iron doors. The dealers who own separate manufacturing facilities where they create or package the drugs. Those are the ones -- the "big" ones -- where we want additional punishment. Not simply every low-level drug dealer who lives in a dingy apartment unit and sells from there. The Ninth Circuit's view of the enhancement simply goes too far, in my view, and is contrary to both its text and purpose.

Avon and Stringer in The Wire are subject to the enhancement. Saul Silver in Pineapple Express is not.

Tekola is Saul, not Avon. By a mile.

(And I say this despite not being sympathetic to fentanyl dealers like Tekola in the slightest.)

People v. Nelson (Cal. Ct. App. - March 5, 2026)

This is a relatively unremarkable opinion. Except for one thing.

Defendant moved for mental health diversion, claiming that his illness was a substantial cause of his criminal acts (which were longstanding and extensive). The trial court found, as a factual matter, that the psychologist's opinion was not credible, and that the defendant's mental health issues did not play a factor in his decision to commit the crimes at issue.

Not surprisingly, the Court of Appeal affirms. The trial court made a factual finding. That's super hard to reverse. There's substantial evidence to support the trial court's decision, so that's that. As a result, the Court of Appeal resolved the appeal in five pages. It's that easy.

The thing that's remarkable, though, is Justice Yegan's four-paragraph concurrence. To his own opinion, no less.

The concurrence cites a recent case from the 4/3 -- People v. Cabalar. That opinion isn't cited anywhere in today's opinion by the 2/6. It doesn't need to be, since the present appeal simply involves a case-specific factual inquiry, not a dispute about the law.

Justice Yegan's concurrence nonetheless reaches out to let the 4/3 know that he thinks that Cabalar was wrongly decided. He's not shy about it, either:

"Cabalar [] is wrong. I disagree with its result and rationale. It does not seem to follow traditional and time-honored rules on appeal. In fact, it seems to retry the facts, and seems to ignore the doctrine of implied findings. (People v. Francis (2002) 98 Cal.App.4th 873, 878.) It also seems to draw inferences away from the order under review. It then substitutes its discretion for that of the trial court and eviscerates the concept of “residual discretion.” . . . .

Cabalar is a convicted felon. His possession of a firearm and ammunition makes it difficult to imagine that he does not pose a risk of danger to public safety. And his participation in an uncharged conspiracy to commit grand theft of $175,000 worth of jewelry from a department store jewelry case in a “smash and grab,” hardly inspires a finding that he is not a risk to the public’s safety. These two observations support the trial court’s exercise of “residual discretion.”"

It's not every day you see a justice reach out to let everyone know that a recent opinion from a different district involving different facts is (allegedly) spot on wrong.

As my kids would say: Shots fired, Justice Delaney.

Pacito v. Trump (9th Cir. - March 5, 2026)

Hours after taking office in 2025, President Trump signed an executive order barring the entry of all refugees, even those who were already approved for admission and in transit to the United States. Plaintiffs sued, and the district court issued a preliminary injunction, holding that this order violated the Immigration and Nationality Act passed by Congress.

Today, the Ninth Circuit reverses almost the entirety of the district court's order. No more refugees, unless and until President Trump feels like it. (Which you know full well ain't gonna be anytime soon.)

I found it interesting that the opinion both begins and ends by empathizing that policy concerns are not relevant to the appeal. At the outset: "Our task is to determine whether the President’s actions were within the statutory authority granted him under the INA. Whether we agree with those actions is beside the point: “The wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Centers Council, Inc., 509 U.S. 155, 165 (1993)." In the conclusion: "We recognize the enormous practical implications of this decision. There are over one hundred thousand vetted and conditionally approved refugees, many of whom may have spent years completing the USRAP process in a third country only to be turned away on the tarmac. . . . Whether that consequence reflects prudent policy is not a question for this court. To hold otherwise would be to substitute our judgment for Congress’s."

You see this point made in various opinions. It's most powerful, in my view, when the judges who join the opinion are in obvious disagreement with the policy at issue, and yet are compelled by their limited role in our constitutional system to uphold the act at issue.

By contrast, here, the opinion is authored by Judge Bybee, and joined by Judges Clifton and Lee. Two Bush appointees and one appointed by President Trump himself. (Judge Lee even authors a separate opinion to both go further than the majority in reversing the district court's preliminary injunction as well as to decry alleged judicial activism. ("We [] must not be seduced by the temptation of judicial resistance: District courts cannot stand athwart, yelling “stop” just because they genuinely believe they are the last refuge against policies that they deem to be deeply unwise. Otherwise, we risk inching towards an imperial judiciary that lords over the President and Congress.")

The "We're just doing our jobs, even if we don't like it" is a lot less compelling when the underlying policy is one that generally comports with your political position. If Judge McKeown, for example, were to write this particular opinion and make that proclamation, well, that'd mean a lot to me. Or if Judge Bybee were to write an opinion reaffirming Hawaii's right to restrict the open carry of firearms -- which he in fact did -- again, that appeal to ignore a judge's own political preferences would similarly carry a lot of weight.

Today's opinion, written by three conservative Republican appointees on an immigration issue? Not so much.

U.S. v. Boylan (9th Cir. - March 3, 2026)

It's a high-profile case, so Judge Owens knew it would get some attention. It's about the overnight fire on the Conception off the Channel Islands during a scuba diving expedition -- a fire that killed 34 people in horrific circumstances. There was a ton of press about it, and today's appeal concerns the conviction of the ship's captain for "seaman's manslaughter" under federal law.

The Ninth Circuit affirms, and when reciting the fact that thirty four people died, Judge Owens doesn't just delineate the body count. He also mentions their names. In a published opinion. Preserved forever.

A fitting tribute. So I'll do here as well:

"Carol Diana Adamic, Juha-Pekka Ahopelto, Neal Gustav Baltz, Patricia Ann Beitzinger, Vaidehi Devi Campbell Williams, Kendra Moore Chan, Raymond Scott Chan, Adrian Danielle Dahood-Fritz, Sanjeeri Satish Deopujari, Justin Carroll Dignam, Berenice Felipe, Lisa Ann Fiedler, Kristina Oline Finstad, Andrew Aaron Fritz, Daniel Garcia, Marybeth Guiney, Yuko Hatano, Yulia Krashennaya, Alexandra Haley Kurtz, Xiang Lin, Charles Spencer McIlvain, Caroline Annette McLaughlin, Kaustubh Nirmal, Angela Rose Solano Quitasol, EvanMichel Solano Quitasol, Michael Storm Quitasol, Nicole Storm Solano Quitasol, Steven John Salika, Tia Nicole Adamic Salika, Sunil Singh Sandhu, Fernisa June Sison, Ted Stephen Strom, Kristian Marc Takvam, and Wei Tan."

Fix The City, Inc. v. City of Los Angeles (Cal. Ct. App. - Feb. 27, 2026)

It's Fix The City versus the City of Los Angeles. And . . . the City wins. Both below and on appeal.

So no fixing the city.

It's only a caption, of course. And you can name your organization anything you want. So it's not like, in reality, the Bad Guys necessarily won.

The caption, and result, nonetheless reminded me of this scene from Blazing Saddles. (Kinda NSFW, albeit from a movie.) 

The relevant quote:

"When the land goes through Rock Ridge, it will be worth millions. And I want it. I want it so bad I can taste it. There must be a way.

Of course! There might be a legal precedent. . . . Ah! Haley versus United States: Haley seven - United States nothing. You see, it can be done!"

Here: City of Los Angeles, 3; Fix the City, 0.

Fisher v. Fisher (Cal. Ct. App. - Feb. 26, 2026)

Nothing published (yet, at least) from the Ninth Circuit or California Court of Appeal today, so I thought I would briefly mention this published opinion yesterday, which arises out of an intrafamily dispute that just so happened to be in my neighborhood (down here in San Diego).

Not my family, thankfully.

Even if your siblings and/or family aren't all that tight, I hope that it's at least better than this.

A brief summary by Justice Buchanan:

"This wrongful death case has its origin in a feud between four adult brothers over the division of their parents’ estate. Decedent Wade Fisher and plaintiff Todd Fisher were on one side. Defendants Brittin Fisher and Kent Fisher were on the other. Wade, the youngest, was a recovering alcoholic who had been sober for 15 years. After their father died, Wade cared for their mother before she went into assisted living, then he moved to Hawaii to escape the family dysfunction.

Todd’s wrongful death claims stem from a phone call Brittin and Kent made to the San Diego Police Department (SDPD) five months after their mother died. Todd alleged that Brittin and Kent falsely reported their mother missing, even though they knew she had died of natural causes, with the intent to cast suspicion on Todd and Wade. As a result, SDPD contacted Wade by telephone to inquire about their mother but quickly dropped the matter after learning she was dead. The phone call greatly upset Wade. A week later, he relapsed and drove his motorcycle drunk with marijuana in his system and without a helmet. He crashed and died. A psychologist testified that the phone call caused Wade’s relapse.

Todd sued Brittin and Kent for wrongful death on behalf of himself and Wade’s estate. A jury found Brittin and Kent liable for negligence and intentional infliction of emotional distress (IIED). The jury also found Brittin and Kent conspired to make false statements to SDPD requiring law enforcement intervention, and acted with malice, oppression, or fraud. On causation, the jury found their conduct was a substantial factor in causing severe emotional distress and harm to Wade. The jury awarded about $5.1 million to Wade’s estate and $4.3 million to Todd, including $80,000 in punitive damages against each defendant."

The Court of Appeal affirms.

So as long as you haven't sued your sibling for multiple millions of dollars lately, you're probably better off relationship-wise than this one.

J.S. v. D.A. (Cal. Ct. App. - Feb. 25, 2026)

I really, really like everything about this opinion. It's equitable. It's reasonable. It's fair. It shows compassion. It's exactly what you'd like to see.

I would strongly predict that J.S. will ultimately get the TRO extended to a permanent domestic violence protective order. But there's no reason why the respondent, D.A., shouldn't at least be allowed to show up (either personally or remotely) to contest those proceedings. Even though he's in prison right now. He's got a legitimate interest in the matter. Let him appear. That's the essential core of due process, after all.

I also like that the Court of Appeal doesn't immediately vacate the DVRO, but instead lets it continue for 30 days while the trial court gets it together on remand. Totally reasonable.

And all of this without even a brief or any other submission by respondent.

Really well done.

P.S. - The caption says: "APPEAL from a judgment of the Superior Court of San Diego County, Brigid Campo, Judge." But I think that she's actually a commissioner, right?

U.S. v. Motley (9th Cir. - Feb. 24, 2026)

Fifteen years in prison seems about right to me for this years-long, ten-figure Medicare fraud. Even without the additional two years that the Ninth Circuit reverses.

I would not have been sympathetic to the defendants, either as a judge or juror.

Not sympathetic at all.

Wells v. BNSF Railway (9th Cir. - Feb. 24, 2026)

The Ninth Circuit delivers some bad news today to a segment of the plaintiff's bar. Particularly that segment located in Montana.

It's an asbestos case. Those lawsuits were classically filed against W.R. Grace & Co., which was the company that mined vermiculite out of the world's largest source of that mineral in Montana. That ore, however, contained substantial amounts of asbestos. So, as one might expect, W.R. Grace & Co. got sued. A lot.

But W.R. Grace & Co. went bankrupt in 2001. So the plaintiff asbestos bar needed to find someone else to sue.

BNSF Railway fit the bill. That railroad shipped pretty much all of the vermiculite from the Montana mine, and in its wake, allegedly threw off asbestos to the surrounding area. So a ton of lawsuits were filed against it.

The one at issue here was the first one to go to trial. And the jury found BNSF strictly liable, and awarded the two plaintiffs $4 million each in damages.

The Ninth Circuit reverses.

The majority opinion, written by Judge Christen, holds that the railroad is not liable under Montana law for strict liability. The concurring opinion, authored by Judge Callahan, not only agrees with the majority, but also believes that federal law -- specifically, the Interstate Commerce Commission Termination Act -- also preempts plaintiffs’ strict liability claims.

In short, at least in Montana, and likely elsewhere in the Ninth Circuit, these types of cases are not going anywhere. At least not against the railroads.

In re Lynex (Cal. Ct. App. - Feb. 19, 2026)

Strange language in this opinion.

Defendant, who was convicted of murder and sentenced to 50 years in prison, files a petition under the Racial Justice Act and requests appointment of counsel to press his petition. The trial court denies his request for counsel, but the Court of Appeal issues a writ. On the merits, everything the Court of Appeal does makes sense and is easily understood.

But footnotes 2 and 5, and the text accompanying them, are weird.

Defendant's underlying claim is that black defendants are illegally and disproportionately charged with murder and firearm enhancements. He's got some data that allegedly backs that up, so his basic RJA claim is that he was treated differently than similarly-situated white defendants. Classic stuff.

Here's the sentence in the opinion that corresponds to footnote two, alongside the footnote itself:

"In 2025, Lynex, who claims to be an African American man,[2] filed a petition for writ of habeas corpus under the Racial Justice Act. [Footnote 2]: (See fn. 5, post)."

The opinion then goes on to reproduce the chart that shows the number of defendants of each race charged with murder with a firearm allegation for 1998, 1999 and 2000, and drops footnote five, which reads:

"In a declaration Lynex filed in support of the petition, he identified himself as an African American man."

What's super strange to me is that, as far as I can tell, no one disputes that Lynex is African American. He's not claiming to be Black. That seemingly indisputably is his race. So why the multiple footnotes that say that Lynex "claims" to be (or "identfie[s]" himself as) part of that race? Is there really a fight about this?

I understand that, at some level, someone's race may be indeterminate. I tried but failed to locate a picture of Mr. Lynex to see what I could see. What I did find, however, was a description of Lynex put out by the LAPD at the time of the underlying murder, which reads: "Witnesses described seeing a heavyset male Black, approximately 25 years-old, involved in a dispute with the victim. The confrontation escalated and the lone suspect fired several rounds, striking the victim. The suspect fled from the location and remains outstanding." So if Mr. Lynex is not, in fact, Black, I bet that was somewhat surprising to the LAPD when it arrested him, and ultimately obtained a conviction.

Now, maybe there's an underlying dispute somewhere about the race to which Mr. Lynex actually belongs, but if there is, I can see absolutely no evidence of it. I thought that, perhaps, Justice Bendix was simply being super careful never to classify someone on account of their race, but later in the opinion, when discussing someone else, Justice Bendix writes: "In McIntosh, a Black criminal defendant filed a habeas petition raising claims under the Racial Justice Act, and sought appointment of counsel to help him prosecute his petition." No caveat there about Mr. McIntosh "claiming" to be Black or anything like that. Unlike here.

I get it that race is a hot-button issue. I also fully understand that one's race is somewhat indeterminate, as well as the historical backdrop regarding this particular issue; e.g., the whole "one drop" thing.

But unless there's an actual dispute, most Racial Justice Act opinions -- or just opinions in general -- don't use qualifying language like "claim" or "identify" when referring to someone's race. So this one struck me as unusual, if only as a descriptive matter.

U.S. v. Romero (9th Cir. - Feb. 18, 2026)

Judge Bennett has a point in his dissent.

Unlike the majority, he thinks that the district court's legal error at sentencing was harmless. And, as a practical matter, at least, I think he's right. On remand, I have extraordinarily little doubt -- indeed, pretty much none -- that the district judge will impose the exact same sentence that he did initially.

It's a case where the defendant attempted to smuggle over 25 pounds of methamphetamine over the border in San Diego in the trunk of his car. That's a lot of meth. Not only is that a serious crime, but after he was caught and out on bond, the defendant made two phone calls to witnesses before his grand jury that might well be deemed to constitute witness tampering. That, plus the prior domestic violence restraining order that one of those witnesses had obtained against him for prior abuse, all adds up to a very elevated risk of exposure at sentencing.

The presentence report recommended a two-level upward adjustment for obstruction of justice, and the district court agreed. As a result, the guidelines sentencing range was 135 to 168 months -- over ten years. But even the government thought that was too much. It recommended 96 months; the defense asked for 30. Judge Sabraw ultimately imposed a sentence roughly in the middle: 60 months, with five years of supervised release thereafter.

Defendant appeals, claiming that he shouldn't have received the two-level upward adjustment. But by the time the case gets decided by the Ninth Circuit -- the indictment was in 2021, and the appeal in 2023 -- it's 2026, and the defendant has already served his full sentence in prison. So there's no getting that time back.

Nevertheless, the case isn't technically moot. Because he's still got the five years of supervised release, which can be changed on remand if appropriate. And, on the merits, all of the judges on the panel agree that the district judge applied the wrong legal standard in deciding whether the two-level adjustment for obstruction was appropriate. The majority says that requires a remand, whereas the dissent says the error is harmless.

Here's where I think Judge Bennett's dissent has a point. There is no way Judge Sabraw is going to reduce the defendant's five years of supervised release on remand. No. Way. Defendant has already received a huge break by getting a WAY below-guidelines sentence: five years as opposed to the dozen or so years the guidelines suggest even without the two-level enhancement. Moreover, on remand, when applying the right legal standard, Judge Sabraw might well still properly conclude that the two-level enhancement was indeed appropriate.

Regardless, the guy's out of prison. We're not talking about his actual custody time any more. We're only talking about whether Judge Sabraw is going to reduce the five years of supervised release at this point.

That ain't gonna happen. Of that I'm virtually certain.

For that reason, in my view, Judge Bennett's dissent has a point. Why remand the case for legal error when we all know full well that the result's going to be no different? What a needless exercise of appellate power, right?

Yes. In a way.

But here's why the majority's contrary position nonetheless seems right to me.

We've got a legal standard here. The relevant law. In the present case, that standard is abuse of discretion. Yes, we know -- or at least I do -- that Judge Sabraw will virtually certainly come out the same way on remand. So why go through the exercise?

To me, it's because we allow him to make the call, not us. The appellate judges aren't there. They don't see the defendant. They're just reading a cold paper record. Yes, I'm fairly confident that Judge Sabraw will continue to find that five years of supervised release remains entirely appropriate, even without a two-level enhancement, particularly given the massive break that the defendant has already received. It behooves everyone to keep an eye on the guy for the next five years to make sure he stays straight. I'm confident that Judge Sabraw will continue to see it that way.

But maybe -- just maybe -- he won't. Maybe he'll come to a contrary conclusion.

Again: He's the one most intimately familiar with the defendant, not the judges on the Court of Appeals. He's seen him. He's heard him speak. We can all read a paper record, but sentencing is not mechanical -- or at least shouldn't be. That's the whole reason why the guidelines are now discretionary, after all. We don't -- and shouldn't -- have artificial intelligence sentence people. We have humans do it. Humans who have actually seen the defendant and who can take his humanity into account.

So even if we, reviewing a paper record, and with full regard to how we know human emotions (and/or the characteristics of a particular judge) generally play out, are convinced that the sentence will remain the same, we still remand. For a sentence imposed consistent with the actual, correct law.

Now, Judge Bennett says in his dissent that a remand isn't required because, on these facts, it would be an "abuse of discretion" to find that the defendant wasn't actually trying to obstruct justice when he contacted the relevant witnesses, even when applying the correct legal standard. And, again, he has a point. Viewing the paper record, I too believe that the defendant was almost certainly trying to in fact threaten the witnesses, which counts (under the correct legal standard) as obstructing justice. He wasn't, in my view, merely trying to "find out" what they said to the grand jury to prepare a legal defense or something like that. His subjective intent -- his mens rea -- was indeed to obstruct justice. And Judge Sabraw, I strongly predict, will so find.

So harmless error, right?

Nope.

Because maybe -- indeed, most likely -- Judge Sabraw will agree with my view of the facts on remand. But maybe he won't. Again: He has the boots on the ground. He's seen the defendant. Sure, looking at the transcript, I think that the words that the defendant used in the two relevant sentences of the phone calls -- that he was “going to go over there” and that “[i]f [I] have a problem, [you] have a problem" -- were subjectively intended at threats. That's my strong take too, particularly given the prior domestic violence of the defendant.

But Judge Sabraw might potentially disagree. I don't think he will, mind you. But he might.

And if he did, that wouldn't necessarily be an abuse of discretion. Yes, I'm confident that I'm right in how I interpret those words. But if someone much more familiar with this particular defendant thought otherwise, I cannot say that he would necessarily and obviously be wrong.

Because what people mean, or intend, is often idiosyncratic. Some people are weird. Some people are unusual. Some people mean certain things in context that aren't readily apparent on a paper record. And if Judge Sabraw were to say: "Look, I know how it sounds, but trust me, I've seen the guy, and know a lot more about this case (and this defendant) than you do, and I don't think that's actually what the guy meant," I would not call Judge Sabraw crazy. He might perhaps be wrong, and I might even think him wrong. But it wouldn't be such an absurd view of the facts that, sitting here reading a paper record, I would call that a total abuse of discretion.

Sometimes what you think is right from the outside is not, in fact, what's right. Imagine, for example, that a defendant goes up to a bank teller, hands her a note that says "Put all the money in the bag or someone will get hurt," leaves with $5,000 in cash in the bag, and subsequently gets convicted of bank robbery. Now, in my mind, on those facts, the guy's pretty much obviously guilty. And that's true even if he gets up on the stand and says: "Oh, no, I was just trying to get my own money that I had in my bank account out of there as rapidly as possible. I wasn't trying to rob anyone. And I know I only had $50 in my account there, so really didn't need a bag, or to threaten to hurt anyone, but I really needed my $50 for crack. Sorry about the words I used, but it's not robbery, just a threat (or assault)." It would very much be my take that, nope, shut up, the guy's guilty.

Imagine that a trial judge (or jury) were nonetheless to find: "You know what? I actually think the guy's right. He wasn't, in fact, trying to rob the bank. He's just an idiot." But even on THESE super clear facts, that would not, in my view, be a total abuse of discretion. Because, yes, on a paper record, I disagree, and think that the words he said -- and the context in which he said them -- are fairly clear.

But I wasn't there. The trial judge was. That means a ton. It wouldn't be an abuse of discretion.

So too here.

And, yes, I know that, in the present case, parts of the transcript are apparently under seal. But I can't imagine anything in the paper record that would change my basic take. This is an area where we rightly defer to the trial judge. And even though, as here, we're darn confident that the trial judge will reach the same conclusion -- the same one that we've come to on a paper record -- we still remand. Because we want to apply the correct law, we want to make sure we got it right, and we want to make sure that the person with boots on the ground will in fact come to the same conclusion that we strongly suspect is the right one on the facts presented.

Which is why, in the end, even though I think Justice Bennett has a good point, Judge Berzon's majority opinion does the right thing.

Hatlevig v. General Motors (Cal. Ct. App. - Feb. 17, 2026)

I don't understand the plaintiff's strategy here. Regardless, whether I understand it or not, it didn't work.

Plaintiff files a lemon law case and prevails, with General Motors agreeing to take back the vehicle and pay $100,000. So at the case management conference on June 2, 2023, the parties tell the court the case has settled, the court orders a dismissal to be filed within 45 days, and it's time for the plaintiff (as the prevailing party) to file a motion for attorney's fees, which the settlement agreement permits.

The Clerk subsequently sends out a notice saying that the case will be dismissed on August 15, 2023 if no one shows good cause otherwise, which no one does. Then, two weeks later, on August 31, 2023, plaintiff files his motion for attorney's fees. That motion gets set to be heard on April 26, 2024.

Okay. That's all straightforward. (Now, why it takes eight months to get a hearing date is beyond me, but whatever. San Diego is . . . busy?)

Here's what I don't understand:

Plaintiff files his attorney fee motion on August 31, 2023, but doesn't serve it until April 4, 2024.

Why?!

You filed it already. Just put it in the mail. Yes, it'll give the other side more time to respond. Who cares?! They could already pull the motion off the court's website if they wanted to (and probably did). Why not serve it simultaneously with filing it?

Whatever the theory, plaintiff decided to wait those extra months to serve.

A fatal flaw.

The trial court holds that the motion was untimely because it wasn't "filed and served" within 180 days of the noticed dismissal, and the Court of Appeal affirms.

That's tens of thousands of dollars (at least) of attorney's fees lost as a result of a seemingly inexplicable decision not to serve a motion alongside filing it.

Live and learn, I guess.

U.S. v. Brandenberg (9th Cir. - Feb. 17, 2026)

In affirming a five-year sentence for threatening to bomb a state courthouse, Judge McKeown's opinion today correctly notes that:

"Brandenburg’s threats arose in a climate of serious threats nationwide against courthouses and judges. In 2008, the San Diego federal courthouse—one of the targets of Brandenburg’s threats—was bombed. See United States v. Love, No. 10-cr-2418-MMM, 2013 WL 1660415, at *1 (S.D. Cal. Apr. 17, 2013). In 2020, District of New Jersey Judge Esther Salas’s son was murdered by a plaintiff who had appeared before her, grimly echoing the killing fifteen years earlier of Northern District of Illinois Judge Joan Lefkow’s mother and husband by a disgruntled litigant. Esther Salas, Federal Judges Are at Risk, N.Y. Times, Dec. 9, 2020, at A25."

To that grim list I might add the bombing murder of Judge Robert Vance, the perpetrator of which was executed in 2018.

People v. Alston (Cal. Ct. App. - Feb. 13, 2026)

Yes, the trial judge wrongly (and inexplicably) failed to state on the record, or anywhere, why it denied defense counsel's objection to one of the peremptory challenges made by the prosecutor, notwithstanding that such judicial findings are expressly required by the statute. Yes, that means that we've got to reverse, thereby wasting the whole initial trial.

But, honestly, the guy's almost certainly getting convicted again on remand. The defendant fairly clearly solicited the cop pretending to be an online 14-year old, so I'd bet big money on another conviction for meeting a minor for lewd purposes and showing pornography to a minor. After all, the guy sent the would-be 14 year old a picture of himself masturbating, and fairly clearly (and expressly) was looking to "link up" with the thought-she-was-a-minor. You're getting convicted in that setting 99 times out of 100. Maybe even 100 out of 100.

Two things, though.

First, the guy only gets sentenced to three years of probation (albeit has to register as a sex offender)? Geeze. For that, just plead guilty. Get the thing over with.

Second, the opinion mentions that, at one point, the defendant sent a text to the would-be-minor that asked if she knew "how to suck D." The opinion immediately follows this revelation by stating that, at trial, the officer "recognized from his training that D was 'short for dick.'”

Really?! That's part of your "training?" They seriously have to tell you at the police academy that the "D" in "suck D" stands for dick?

Even if you didn't know from common experience what that phrase meant, what else could the D even possibly stand for? Diaper? Dreadnought? Dictionary?

Cox v. Gritman Medical Center (9th Cir. - Feb. 11, 2026)

This is a personal jurisdiction case, which somewhat interests me on the merits, but what caught my eye was actually the caption. The principal parties are "Mary Cox v. Gritman Medical Center" alongside "'Others TBD'" as unnamed defendants.

I understand that different states do it differently. Here in California, of course, we typically call the unnamed defendants "John [or Jane] Doe" or simply "Does." This case is from Washington state. Is it really standard practice to simply call them "Others TBD?"

Nothing rides on it, of course. You could call them "John Jacob Jingleheimer Schmidt" for all it matters. (And I desperately hope that someone does, in fact, use that name at some point; it'd be classic.)

Still. TBD. Different for sure.

People v. Flores (Cal. Ct. App. - Feb. 11, 2026)

You advertise on Craigslist to illegally sell one thousand fentanyl pills and get busted by an undercover cop on your way to sell them to him and your sentence is . . . two years probation?!

Wow. Seems like a pretty good business model, honestly.

(Except for the whole "occasionally killing people" part.)

People v. Zapata (Cal. Ct. App. - Feb. 10, 2026)

I'm not sure that the California Supreme Court would agree with today's opinion by the Court of Appeal, which reverses a conviction for failure to suppress a jailhouse confession made to undercover officers posing as inmates after the suspect had invoked his right to counsel and remain silent. Maybe it would, maybe it wouldn't. TBD.

But I fairly strongly believe that the United States Supreme Court would disagree. And might well, notwithstanding the ordinarily low chance of a grant of certiorari.

TBD as well.

In re Marriage of Allen (Cal. Ct. App. - Feb. 6, 2026)

Justice Baltodano writes a very concise and punchy opinion that coherently explains why the Court of Appeal comes out the way it does here. Which is eminently understandable, particularly given the facts underlying the appeal.

But I wonder if the real-world consequences will be counterproductive.

The first paragraph of the opinion cogently explains the holding (which, as always, readers appreciate):

"In In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203 (Sabine & Toshio), our colleagues in Division One held that parents are precluded from contractually waiving child support arrearages. (Id. at p. 1213.) In Sabine & Toshio, the child in question was a minor; no case since has extended this prohibition to children who are now the age of majority. Here, we hold that parents are precluded from contractually waiving or forgiving past due child support arrearages even after the child has reached the age of majority and there is no longer a current support order in place."

Makes sense. Especially here. Husband and Wife get divorced, and have four kids: "ages 5, 9, 10, and 12 years old." Husband is ordered to pay child support, and Husband "made some payments, but failed to fully comply with the trial court’s orders. He was declared a contemptuous litigant because he “made no reasonable efforts to support his children.” Lewis “terminated his job in September 2000 and moved to Utah to avoid payment of support.” In 2002, a bench warrant was issued for Lewis’s arrest. Lewis later moved out of the United States. He made infrequent payments thereafter."

Okay. We obviously want to spank that guy.

Two decades later, Husband wants to strike a deal with Wife (maybe so he can come back to the U.S. and get a job?) about the overdue child support. After lots of negotiating, they agree to split what's owed, and Husband pays $272,500, with the final payment in 2021.

All done, right?

No. As one might expect from the opening paragraph of today's opinion.

The Court of Appeal holds that he still owes the additional quarter-million plus. We're not going to enforce the settlement.

Which is fine, right? Husband's got to pay the whole thing. Like he should have in the beginning.

The only downside, in my view, is that this radically reduces the incentive for spouses like this to come back in the first place. Sure, if they do, in fact, return, you can potentially get one hundred cents on the dollar.

But if that's the law, the number of former spouses willing to say "Screw it, I'll just continue with my existing life and pay nothing at all" necessarily increases. Meaning less, rather than more, money for their children (and former spouse).

It's like if you prohibited all settlement agreements in civil lawsuits. Sure, you'd get more "justice" since everyone now gets fully compensated if they prevail at trial, rather than having to accept pennies on the dollar.

It's just that some of them would now get absolutely nothing. Which, amongst other reasons, is why we don't have that rule.

Esparza v. Superior Court (Cal. Ct. App. - Feb. 5, 2026)

I understand the facial appeal, I guess, but I still can't believe that the trial court got this one wrong.

Defendant is accused of kidnapping his adult fiancée and taking her to Mexico. At his preliminary hearing, he subpoenas to testify in his defense. Presumably to say, inter alia, that she went with him voluntarily and of her own accord, which strikes me as typically a pretty good defense in these types of cases.

The trial court, however, quashes the subpoena and refuses to allow her to testify. Holding that because she's been temporarily institutionalized under the Lanterman-Petris-Short (LPS) Act since she's unable to provide for herself, that finding categorically means she's incompetent to testify.

Unlike most of the cases I discuss, I don't really have anything to say other than what Justice Fields writes in his opinion. But I just wanted to emphasize it, because its truth seems so obviously clear to me.

Just because someone is "unable to provide for [their] basic personal needs of food, clothing, and/or shelter" -- or even if they're not able to make their own rational medical decisions -- and thus properly appointed a guardian under the LPS Act in no way, shape or form necessarily mean that they are also "incapable of understanding the duty to tell the truth" such that they are incompetent to testify under the California Evidence Code.

Far from it. Many people who can't care for themselves, or make critical medical decisions, due to a particular mental disability are nonetheless quite capable of understanding the difference between a truth and a lie. The former is not coextensive with the latter.

It may well be that, at the preliminary hearing, the content or manner of expression of the fiancée's testimony will be found to be uncredible, or disorganized, or subject to impeachment. Indeed, were the trial court to examine the witness and, upon examination, discover that, yes, this particular witness was so mentally challenged that she did not, in fact, know what it means to tell (what she believed to be) the truth, then perhaps that particular disability is so strong that this particular witness is incompetent to testify.

But as a categorical rule? No way.

And, as a general matter, geeze. It's an incredibly serious charge -- kidnapping. I can't fathom that it's not affirmatively critical that the judge (and, ultimately, jury) hear what the alleged victim has to say. Maybe they'll believe her when she says (if she does) that it was consensual. Maybe they won't. Or, maybe, if the disability is super serious, they'll conclude in a particular case that she was so disabled that she wasn't capable of effective consent anyway.

But let her testify.

Before reading today's opinion, I would have thought that would have been clear to everyone.

Given the trial court's contrary ruling, however: Apparently not.

People v. Gomez (Cal. Ct. App. - Feb. 4, 2026)

The Court of Appeal publishes this opinion to confirm, amongst other things, that comparing the criminal defendant to a dog at trial is apparently sometimes a compliment.

Harris v. Muhammad (9th Cir. - Feb. 4, 2026)

Wait. What is this?! The Ninth Circuit expressly holds today -- albeit in dicta -- that I'm not permitted to join the "Church of Surf ‘n’ Turf" and thereby obtain "luxury lobster and steak dinners" in prison?! (Page 14)

You bastards.

Parsonage v. Wal-Mart Associates, Inc. (Cal. Ct. App. - Feb. 4, 2026)

This seems a pretty successful business model, actually.

Find companies who commit technical violations of California's background check law (which the Court of Appeal correctly notes may perhaps "be 'technical violations,' [but] they are violations nonetheless"), find 141 clients and file individual lawsuits on behalf of each, and obtain the $10,000 minimum statutory damages for each of them. As well as, pursuant to that same statute, attorney's fees and costs.

That's a fair chunk of change.

The Court of Appeal says that the strategy works. At least here, and at least with respect to standing. In California, at least (unlike federal courts), there's no "case and controversy" requirement, so pure statutory standing works.

Nice work if you can get it.

Higginson v. Kia Motors, Inc. (Cal. Ct. App. - Feb. 3, 2026)

Check out this Song-Beverly (i.e., automobile "lemon law") opinion from the 4/1, which the Court of Appeal decides today to publish. At least if you have the wherewithal to peruse all 67 pages, which includes the dissent by Justice O'Rourke.

Talk about a "poop show," eh? (I'm deliberately using family-friendly words.) Both on appeal and, in particular, in both the discovery as well as trial phases of the lawsuit.

What a mess.

One that now gets to be relitigated on remand.

Nevellier v. Putnam (Cal. Ct. App. - Feb. 2, 2026)

Hat tip: If you're representing someone on appeal, know the appellate rules. Otherwise this might happen.

Justice Chou explains the situation fairly clearly at the outset of his opinion:

"Our local rules require that all parties promptly notify us about a bankruptcy that could affect our ability to decide an appeal. Despite this requirement, the parties in this case waited over four months after the filing of a bankruptcy petition by plaintiff Navellier and Associates, Inc. (NAI) and just two days before oral argument to tell us about that petition. Exacerbating the potential consequences of this delay, plaintiffs Louis Navellier and NAI now contend that the automatic bankruptcy stay precludes us from deciding this appeal. (11 U.S.C. § 362(a)(1).) If plaintiffs are correct, then the parties’ failure to provide timely notice of the bankruptcy would have caused this court to squander its valuable time and resources. Fortunately, plaintiffs are not correct because Navellier did not file for bankruptcy and because NAI, the debtor, brought this action. Although the harm to this court caused by the parties’ violation of our local rules is therefore minimized, this does not excuse their misconduct. Although we do not sanction the parties, we do admonish them and advise them to learn and follow our local rules in the future."

Not exactly something you want said about you in a published opinion, eh?

Want more details? Could you see it potentially happening to you? Here's a more robust explication of what went down, alongside the relevant rules -- with the italicized portions (all of 'em!) in the original:

"Under rule 21 of our local rules, “[a]ny party to a matter pending before this court who is aware of a bankruptcy that could cause or impose a stay of proceedings in this court must promptly give notice of such bankruptcy.” (Ct. App., First Dist., Local Rules of Ct., rule 21(a), italics added.) That notice “shall include (1) a copy of the most recent order of the bankruptcy court and of any stay order issued by that court and (2) an explanation of whether a stay order or an automatic stay is in effect and why the stay applies to the pending appeal or writ proceeding.” (Rule 21(b), italics added.) Despite these requirements, no party in this case complied with rule 21. Fortunately, however, the automatic bankruptcy stay (11 U.S.C. § 362(a)(1)) does not preclude us from disposing of this appeal; thereby, mitigating much of the harm that could have resulted from the parties’ dereliction of their professional duties.

NAI filed its bankruptcy petition on September 5, 2025. Plaintiffs’ counsel admitted at oral argument that he knew about the petition soon after NAI filed it and well before he filed the reply brief on October 27, 2025. Despite this, he waited until January 20, 2026, two days before oral argument, to notify us about NAI’s bankruptcy. And when he did so, he did not comply with rule 21(b). Instead, he only provided us with the information required by that rule after we ordered him to do so. At oral argument, Plaintiffs’ counsel pled ignorance of rule 21 and his initial belief, based on the purportedly faulty advice of bankruptcy counsel, that NAI’s bankruptcy did not stay this appeal. But neither excuse absolves him.

First, “[a]s an officer of the court,” he “bore professional responsibility to be aware of and knowledgeable about local court rules.” (Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 408.) 

Second, rule 21(a) required the parties to provide notice of any bankruptcy that “could cause or impose a stay of” this appeal. (Italics added.) Thus, the parties had to provide this court with notice of NAI’s bankruptcy if there was any possibility, however remote, that it stayed this appeal. (See Dictionary.com (2026) [as of February 2, 2026] [“could” is “used to express possibility”].) As evidenced by plaintiffs’ claim at oral argument that NAI’s bankruptcy did stay this appeal due to defendants’ claim for prevailing party attorney fees, that possibility undoubtedly existed here. . . .

Defendants’ counsel also acquitted themselves poorly. After some prodding at oral argument, Grail’s counsel eventually admitted that he learned about NAI’s bankruptcy a couple of months before oral argument. In an apparent attempt to justify his failure to comply with rule 21, he also proffered one of the inadequate excuses proffered by plaintiffs’ counsel: that he believed, after consulting with a bankruptcy attorney, that the automatic bankruptcy stay did not affect this appeal."

Yikes.

That said, Justice Chou's opinion also makes clear what one should do when one has made a mistake like this:

Fess up. Which the lawyers did here, and which is the only thing that saved them from sanction (or even stronger vitriol):

"To their credit, all counsel did, for the most part, accept responsibility for the parties’ failure to comply with rule 21. For this reason, we decline to impose any sanctions at this time. (But see Keitel v. Heubel (2002) 103 Cal.App.4th 324, 340 (Keitel) [imposing sanctions due in part to the parties’ failure to notify the court about a bankruptcy in violation of a local rule].) Instead, we admonish counsel to comply with our local rules in the future and to “promptly” notify us if a bankruptcy petition has been filed by one of the parties so we do not waste our limited time and resources. (Rule 21(a).) Indeed, even though we, as explained below, may resolve this appeal notwithstanding NAI’s bankruptcy, the parties’ failure to promptly notify us about that bankruptcy still forced us to issue orders that should not have been necessary and to waste time and resources discussing their failure to comply with rule 21 at oral argument and in this opinion."

If didn't know it already: The Court of Appeal does not like surprises right before oral argument, nor is it at all interested in having its time wasted writing a draft opinion that's potentially mooted by events that everyone other than the justices knew about long ago.

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

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

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

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

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

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

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

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

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

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

As, ultimately, they all will.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The two tangential things first.

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

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

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

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

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

[B.K.]: Yeah. 

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

[B.K.]: Right. 

The court: Counsel joins? 

Ms. Altes: Yes.”

Yep. That's a waiver.

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

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

[B.K.]: No. I want a jury trial. 

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

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

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

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

The court: Okay. 

[B.K.]: I want a jury trial. 

The court: Okay.”

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

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

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

Classic line. "I like the voices."

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

Here's the very last paragraph:

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

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

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

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

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

But to reiterate: It definitely means Y. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Thoughts?

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

Tough call, at least for me.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Let's hope the bar does something. Quickly.

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

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

"THE COURT:* 

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

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

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

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

There is no change in the judgment."

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

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

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

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

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

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

An important case, with important people on both sides.

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

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

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

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

Ouch.

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

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

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

Sus.

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

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

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

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

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

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

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

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

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

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

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

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

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

Sus.

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

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

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

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

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

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

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

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

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

No wonder he got rear ended, right?

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

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

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

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

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

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

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

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

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

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

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

Or at least that's my take.