People v. Morris (Cal. Supreme Ct. - May 4, 2026)

Three things about today's California Supreme Court opinion.

First, Justice Groban's opinion. A portion of it struck me as the most anodyne way possible of setting forth the question presented. It sounded like the doctrinal language that professors in law school sometimes use when describing a subject. Language that's 100% accurate but somewhat obscures -- perhaps deliberately -- exactly what we're talking about. For example:

"Murder also requires an actus reus. . . . [T]he issue in this case is whether Morris is precluded from making a prima facie showing for resentencing relief under section 1172.6 as a nonkiller aider or abettor of robbery and rape with intent to kill. . . . Morris claims that, when a nonkiller acts with an intent to kill, the nonkiller must aid the actual killer in the lethal act. . . . The disagreement involves the actus reus requirement, specifically, what acts are required to prove the actus reus under section 189, subdivision (e)(2)."

This all makes sense. At least if you understand the lingo. Even though a different way of saying the same thing, rather than using terms like actus reus, would be to say something like: "Is someone eligible for resentencing under the relevant California statutory provision if he breaks into a home alongside another person, intended to rob it, and rapes a person therein while the other person murders the other resident?" We know that actual killers aren't eligible for resentencing, nor are people who actually help them kill, but what about situations like that?

You ultimately get from Justice Groban's opinion what he's talking about, but there's a lot of doctrinal lingo in there (including some in Latin) that you gotta get through first. (P.S. - The Court ultimately holds that, yeah, a person who doesn't actually help the person kill is potentially eligible.)

Second, Chief Justice Guerrero's concurrence. I can't tell you how surprised -- and excited -- I am to see a judge actually rely on the rule of lenity. That doctrine is almost always viewed as a throwaway these days. The constant -- and I mean, constant -- contemporary refrain is that you only interpret ambiguous criminal statutes in favor of the defendant if relevant interpretive rules are a tie, and in practice, judges never hold that it's a tie. So I was thrilled to see someone take and apply the doctrine seriously.

Finally, the dissent of Justice Yegan (sitting by designation). It's short: four pages. It makes some arguable points, and responds to both the majority opinion and the concurrence. But the thing that most struck me about this dissent (and, to be clear, several things struck me) was the penultimate sentence in its first paragraph, when Justice Yegan says "Salus populi suprema lex esto." Which is Latin for "The safety of the community is the highest law."

I get that other opinions have sometimes said that. But personally, I never would. The highest law in a democratic society is, in my view, the law. That's what we follow. We're a society dedicated to the rule of law -- and certainly the judiciary is -- not act utilitarian philosophers. We follow the rule of law even when, in our view, doing so would reduce communal safety. Both because "safety" (while critical) is not the sole human (or governmental) objective and, more centrally, because appeals to "the safety of the community" are traditional and oft-employed incantation of fascistic rulers. Yes, we care about safety. Deeply. But no, the objective is not, in fact, the highest law -- nor even "law" in the first place. It is a goal and an objective, but we follow the law regardless. Even if we individually believe that the law in a particular instance might be counterproductive to public safety. That's what in means to live in a nation committed to the rule of law, and what makes America qualitatively different from a variety of other, lesser nations where "the safety of the community" is indeed the highest law.

So I just wouldn't use that phrase myself. It's not something in which I believe, and certainly not a principle that I would want to invoke or affirmative spread. FWIW.

People v. Stayner (Cal. Supreme Ct. - April 30, 2026)

I'll be honest that was difficult -- very difficult -- for me to pay detailed attention to every word of this 269-page (!!) opinion. 

(That count, by the way, does not include the many pages of the the partial dissent by Justice Evans.)

It's not that the opinion isn't important. It's involves the life or death, at least theoretically, of a human being, Cary Stayner, who's been sentenced to death.

The underlying difficulty is also largely not even the sheer size of the opinion. Though massive, even for a death penalty case, I've slogged through longer ones. (Though not many!) That task is doable, and indeed, I eventually did it here.

What made this one especially difficult for me was the outset of the opinion, which is where Chief Justice Guerrero understandably describes the underlying crimes. Once you've read that section, you know how the opinion is almost certainly going to come out, and in all honesty, at least for me, you're somewhat, if not wholly, sympathetic to that outcome.

Here's the first paragraph of the opinion:

"This case is an automatic appeal from a judgment of death. (Pen. Code,1 § 1239, subd. (b).) Defendant Cary Anthony Stayner used a ruse to enter the motel room of Carole Sund, her 15-year-old daughter Juli Sund, and their 16-year-old family friend Silvina Pelosso. Once inside the room, defendant brandished a gun and used duct tape to bind Carole and the girls. He murdered Carole by strangling her and murdered Silvina by strangling and suffocating her. Then, over the course of several hours, he repeatedly sexually assaulted Juli, after which he kidnapped her, sexually assaulted her again, and then murdered her by slitting her throat. About five months later, defendant kidnapped, murdered, and decapitated Joie Armstrong. Defendant confessed to his crimes in a detailed recorded interview."

It is difficult -- again, very difficult -- for someone to care deeply about formal "justice" in such a setting. Your retributive instincts are simply too strong.

That's even without learning, later on in the opinion, the additional details of these horrific murders. Or that after the murders, before he was caught, the defendant sent the FBI a letter that included a map of the location of one of the bodies (with his thumbprint on the stamp) that "included the words 'We had fun with this one.'”

After reading 269 pages, you get to Justice Evans partial dissent, who makes some very good points about why the death sentence here was perhaps the result of two very problematic events at the penalty phase. To reiterate: very good points.

But the facts of the case make you care less than perhaps you normally would. Or perhaps should.

Detrick v. Shimata (Cal. Ct. App. - April 28, 2026)

Make sure that the declarations that you submit from witnesses who do not speak English include the relevant translation certifications. Otherwise they're getting excluded.

This is the first California appellate case, to my knowledge, to so hold. But it's an important one.

Dickinson v. Trump (9th Cir. - April 27, 2026)

You can probably guess how Judge Lee's opinion, joined by Judge Tung, describes the ICE protests in Portland and the police response to them You can probably also guess how the non-Trump appointee, Judge de Alba, describes those same events, including a detailed, five-page bullet point description of what the video of these protest shows these officers doing to the protesters.

Perhaps needless to say, the majority dissolves the district court's injunction that enjoined federal officials from using crowd control munitions against peaceful protesters, while Judge de Alba dissents.

People v. North River Ins. Co. (Cal. Ct. App. - April 28, 2026)

How much does it cost to have two San Diego County Deputy Sheriffs fly out to Texas and pick up a guy to fly back to San Diego?

Apparently $7,492.40.

Those were pretty nice seats on the plane, I guess.

(Two first class round trip nonstop tickets to Houston, where the jail at issue here is located, are currently under $2000. Economy nonstop tickets are under $200 each.)

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

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

Yep. Sounds exactly right.

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

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

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

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

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

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

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

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

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

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

Powerful equities on both sides.

So what would you do?

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

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

Great opinion by Justice Franson.

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

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

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

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

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

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

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

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

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

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

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

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

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

But that was my definite personal feeling on this one.

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

 Otherwise: Love it.

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

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

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

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

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

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

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

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

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

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

The Ninth Circuit reverses. Rightfully so.

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

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

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

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

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

Twice in one week.

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

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

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

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

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

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

You can see the argument, right?

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

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

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

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

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

Interesting twist, eh?

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

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

Apparently so.

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

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

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

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

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

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

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

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

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

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

In short: Cut it out. Now.

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

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

Classic.

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

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

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

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

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

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

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

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

But not entirely.

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

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

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

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

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

All good?

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

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

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

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

Oops.

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

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

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

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

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

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

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

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

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

Let's be careful out there, okay?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yep. Indeed.

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

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

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

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

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

 

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

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

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

It's nonetheless shocking how far this panel goes. 

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

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

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

No longer.

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

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

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

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

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

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

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

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

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

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

U.S. v. Casildo (9th Cir. - March 31, 2026)

There was only one published opinion in the Ninth Circuit, California Supreme Court, and California Court of Appeal today. And even that one wasn't all that doctrinally interesting.

That said, one person definitely cared deeply about that sole opinion: Francis Casildo.

Mr. Casildo is what a normal person might call a "long-time drug dealer," though we in the legal world prefer "career criminal." He has a 2006 drug conviction in Nevada and a 2011 federal conviction for distribution of cocaine. So when the jury convicted him in of distributing methamphetamine, that was his third strike. Which means a big jump in the sentencing guidelines range.

The judge ultimately sentenced Mr. Casildo to a little over 19 and a half years in prison. But expressly did so because the three drug strikes made Mr. Casildo a career criminal under the guidelines. At sentencing, the judge said:

"The guideline range is properly calculated at 262 to 327 months, and as we discussed earlier, that was driven almost completely by the fact that Mr. Casildo is regarded as a career offender, having had two prior drug trafficking convictions. And I think that essentially says it all. Were it not for those two prior convictions or if there had only been one prior drug conviction, we would be talking about a very, very different case, a very, very different sentence, probably something on the order of what Mr. Requena received, maybe even less."

After an unsuccessful appeal, Mr. Casildo filed a motion to vacate his sentence. The district court denied the motion, but the Ninth Circuit reverses, holding that his attorney, who had been instructed by Mr. Casildo to oppose the career services finding, deficiently failed to do so: "We hold that there was cause for, and prejudice resulting from, Casildo’s procedural default, and that his failure to raise his claim on direct appeal may therefore be excused. On the merits, we hold that Casildo’s conviction under § 453.321(1)(a) is not a controlled substance offense under § 4B1.1(a). We reverse and remand for further proceedings."

It's not like Mr. Casildo is going to get out of prison any time soon. But he's nonetheless likely looking at trimming off a non-trivial portion of this just-under-two-decade sentence.

And it's March 31, not April 1, so it's not an April Fool's Day joke either.

People v. Newt (Cal. Ct. App. - March 30, 2026)

Rarely have I been as confused reading an opinion as I am right now.

I think I understand the substance of the opinion. Under the relevant statute, which has been amended multiple times, "receiving" a high capacity gun magazine in California is a wobbler -- maybe a felony, maybe a misdemeanor -- as of January 1, 2014, but then in 2016 a different paragraph was added to the statute that says that "possession" of such a magazine is either a misdemeanor or infraction.

Defendant here gets convicted at trial of a felony. He clearly "possessed" the magazine, and the Attorney General says that if he possessed it, he obviously must have "received it" at some point as well, so he's guilty of the felony as well.

The Court of Appeal reverses. If I'm summarizing Justice Banke's opinion accurately, she says that it's true that he obviously must have received the thing at some point in order to possess it, but there's no evidence that he received it after January 1, 2014. (Before then, the statute only criminalized manufacturing or selling such things.) Since it's possible that he received it prior to 2014, and there was zero evidence at trial regarding when he did in fact receive the thing, there's insufficient evidence of the felony, so his conviction on that charge must be reversed.

Okay. That makes sense, I think. At least if I'm reading the opinion correctly.

But that left me thinking: "Well, I get that the trial court and the Attorney General might have been wrong about what the statute means. But was there really no evidence that the defendant got the magazine after 2014? That was 12 years ago, after all. Let's say the guy is 25 years old -- a classic age for offenders. Is it really likely that he received the high capacity magazine when he was a child? Or what if he was 20 years old? No way he got the thing when he was 8 years old, right?" So I wondered how old he was at the time.

I looked for the briefs. Couldn't find them. Then I looked at the appellate docket. That lists the defendant's date of birth as February 26, 1994. (See entry on September 6, 2024.) So he's 32 years old now. Maybe around 27 or 28 at the time of the offense? (The Court of Appeal's opinion gives pretty much zero facts about the actual offense, and consists pretty much entirely of statutory analysis, with no underlying statement of background facts.) So I guess it's possible that he "received" the magazine when he was 15 or 16. Though I strongly doubt it.

But then things got weird.

I noticed in the docket -- but not in the opinion -- that the defendant was sentenced to 2 years, 8 months in prison, and had 92 days of custody credits. That was back in February of 2024. With the usual credits for good conduct, that would typically mean that, by today, he would have already have served his sentence and been out of prison. Which in turn might well mean that today's opinion would technically be moot.

As I said, there's basically nothing in the opinion about the actual facts, and it doesn't even contain his sentence. So maybe it's moot? Maybe it's not?

So I go online to the CDCR website to find out whether he's still physically in prison. I enter his name and hit "submit". No results for the guy's name: "Robert Antoine-Deshawn Newt". There's not anyone even in prison with the last name "Newt" anywhere in California.

So I'm thinking: "Hey, in fact, the opinion might be moot. Maybe the Court of Appeal wants to drop a footnote about that? Maybe decide the appeal even though the guy's out of prison as a matter capable of repetition, or treat it as a writ?"

But I've nonetheless got a nagging feeling about this. There's an offhand half-sentence in the opinion that says that the defendant had "committed numerous crimes" at the time he was caught with the high capacity magazine, so I'm sort of suspicious that the guy's actually out of prison. Even when I see in the docket sheet that the Court of Appeal was itself expressly concerned about mootness, and sped up the briefing process (at least as contrasted with normal delay-ridden appeals) to try to make sure that the case was resolved before the guy's sentence was up.

So I see in the docket sheet that -- randomly -- they list the defendant's CDC number (BW7733) and that he's incarcerated (at the time) at the California Substance Abuse Facility in Cochran. So I run his CDC number, rather than his name, in the inmate locator website.

Bam. There's a hit. There's in fact someone still incarcerated with that number. At the exact same place, the California Substance Abuse Facility in Cochran. With the exact same admission date and age as the person listed in today's Court of Appeal opinion.

With one wrinkle. His name isn't Robert Antoine-Deshawn Newt. His name is instead listed as Robert Anthony Newton.

Now, that's pretty close. But it left me thinking: What's the guy's actual name? His last name is listed on the appellate caption and in the appellate docket at "Newt." Did that entry simply get truncated for some reason from "Newton" -- maybe they couldn't fit the last two letters somewhere? Or did the guy change his name at some point? From Newton to Newt?

No idea.

But this "Newton" guy is indeed still in prison. Indeed, for a long time. His first parole eligibility date is December 2051. 

Anyway: Weird. Newton vs Newt. A massive bunny trail trying to figure out if the case is moot leading to serious confusion on -- at a minimum -- my end as to what his name actually is.

West Contra Costa USD v. Superior Court (Cal. Ct. App. - March 25, 2026)

Hear hear, Justice Richman.

In re Bergstrom (Cal. Ct. App. - March 26, 2026)

The Court of Appeal this afternoon refuses to grant relief to Robert Q. Bergstrom, who is accused of molesting several of his relatives and who is being kept on a no-bail order.

Two things about Mr. Bergstrom that are mentioned nowhere in today's opinion:

First, he's 84 years old, and accused of molesting his granddaughters.

Second, he's an attorney.

No bueno for him.

Bair v. Dept. of Transportation (Cal. Ct. App. - March 26, 2026)

The third time's not a charm; as a result, the windy single-lane Route 101 through Humboldt County will now get wider.

The California Department of Transportation has been trying to widen this portion of the 101 for almost two decades. The road in this area goes through massive old growth redwood trees that are 300 feet tall and thousands of years old, many of which are immediately adjacent to the highway. To get through this portion with minimal disruption to the trees, the existing road becomes a narrow, tightly curving two-lane road that doesn't have regular shoulders and in which it's hard for vehicles to stay in their lanes. The DOT wants to widen it, alongside mitigation measures to reduce the impact on the roots of the redwood trees. That way, the DOT says, traffic will be safer, and regular-sized trucks, which are currently prohibited on this part of the 101, will now be allowed.

Some residents and environmental groups in the area oppose the change, and file a writ that claims that the environmental impact report was improperly prepared. They lose in the trial court, but win on appeal. The DOT revises the report and submits it again. Groups file another writ, and win again. The DOT then tries a third time, and groups file the present (third) writ. But this one loses, both in the trial court and on appeal.

So, at this point, nothing's stopping that route from getting wider.

For better or worse.

Garden Storage Centers v. Simpson (Cal. Ct. App. - March 24, 2026)

If it were me, on remand, I wouldn't disqualify the law firm here.

A party was employed by a company and alleges wrongful termination. During their employment, they received some emails that were sent to them (deliberately) by the company's attorney. Before leaving the company, they sent those emails to their personal email because they thought they helped establish the company's misconduct. After filing suit, they then turned those emails over to their lawyer, who then produced them during discovery and used them (in part) to advance their case.

The Court of Appeal says that's unethical. That just like you have a duty to return privileged documents that were inadvertently produced by the other side, so too, it holds do lawyers have a duty to return any privileged documents that your client turns over to you. Even ones that were deliberately sent to them by the company during their employment.

Let's assume for now that this holding is correct. Though, as you might well imagine, there are some serious distinctions -- maybe dispositive, maybe not -- between (1) viewing documents that contain information that your client never had any reason to know about and that were obviously accidentally produced to you, as opposed to (2) viewing documents that contain information that your client already knew about and was deliberately and intentionally sent to them. Put that aside. Assume you're the trial court on remand, and the Court of Appeal has now made it clear that an attorney's ethical obligations are the same in both scenarios: return the documents and don't make use of them.

Disqualification is still discretionary in such a setting. And I wouldn't DQ the lawyers here. For multiple reasons, only two of which I'll bother to mention.

First, until today, this wasn't the rule. As the Court of Appeal's opinion admits (in a footnote), Rule 4.4 expressly only applies to inadvertently produced documents, and does not apply to privileged documents that are intentionally disclosed to a client. Could a lawyer nonetheless have potentially anticipated today's holding? Maybe. But the applicable ethical rule was, at a minimum, unclear. That weighs heavily against harming both lawyer and client by disqualifying the lawyer for doing something they thought at the time was permissible.

Second, there's a difference. One the Court of Appeal admits. With inadvertently produced documents, if you review them, you're gaining access to information that you should never have had, so DQing you will effectively remedy that problem by compelling the retention of a new lawyer who won't have access to those documents and that information (since they'll have been returned). By contrast, here, the cat's long out of the bag. The client already got this privileged long ago. They know about it. They are fully aware of what's in the emails. Indeed, they even know the stuff's important, which is why they sent it to their own email in the first place.

Disqualifying the original lawyer doesn't solve the problem. Sure, the client has to get a new lawyer, and now, the client has already returned the emails (and knows full well that if they hide another copy and give them to the lawyer, they'll just be DQ'd again). But the client still knows the stuff. They can testify to it. They can tell whatever they remember to their lawyer, either in writing or (more likely) orally. That stuff is already out, and while there's perhaps a chance the emails themselves aren't going to be formally used, the information is available. At this point, nothing we do is going to put Pandora back in that box.

As Justice Perluss explained three or so years ago, in a different case: "Courts cannot effectively police what a client, after reading or hearing another party’s confidential communications, chooses to tell his or her lawyer. As the cases indicate, attempting to restrict oral disclosures of that sort risks undue interference with candid discussions between the client and counsel; and disqualification would, in any event, be an ineffective remedy because the client might provide the same information to new counsel." For that reason, the proper response to a lawyer deliberately using inadvertently produced privileged documents -- disqualification, in at least some settings -- doesn't really work for me here. At least not in the context raised in this particular litigation.

That said, after today, make sure you know the relevant rule. If you see an obviously privileged email from the other side, even one that was deliberately sent to your client at the time, you may well have an obligation to stop reading it and give it back.

So be careful. No one wants to risk getting disqualified if they can avoid it.

The Merchant of Tennis v. Superior Court (Cal. Ct. App. - March 23, 2026)

One of the (many, many) suboptimal things about becoming an older lawyer is that you forget whether the rule you're thinking about is an old rule and whether there's a newer rule that's taken its place.

I was reminded of this reality when I read Justice Miller's modification of his opinion this afternoon. It reads, in full:

"On the court’s own motion, the majority opinion filed in this matter on January 14, 2026, is modified as follows: 

To the “Disposition,” we add the following sentence: “Each side is to bear their own costs on appeal.”

Except for this modification, the majority opinion remains unchanged. The modification does not effect a change in the judgment."

Here was my thought. With a reminder that perhaps I'm thinking about an old rule, or maybe I'm simply mistaken on the merits. Nonetheless, this was definitely my internal thought:

"Wait. Deciding not to award costs does effect a change in a change in the judgment. Doesn't it?"

Well? Doesn't it?

It seems like it does change the judgment to me. Before, because the opinion was silent, the prevailing party was entitled to costs. That's money. Now, after the modification, they're not. So as a result of the change, they're entitled to less money. I would think that's a change in the judgment. (As well as one that might potentially have practical effects. Maybe you were fine with the opinion because even though it didn't give you everything you wanted, at least you got your costs, which maybe were huge. But then once you didn't get costs, maybe you wanted to seek review or something like that.)

I understand -- or at least think I understand -- why Justice Miller wants to say it doesn't effect a change in the judgment. As a practical matter, it probably doesn't, in fact, matter that much. And the underlying opinion was issued way back in January, over 60 days ago, so the Court of Appeal probably does not want to restart the clock vis-a-vis the finality of its decision at this point.

But I can't help still thinking that it does, in fact, change the judgment. And think, though perhaps I'm remembering incorrectly, that other opinions that have done exactly the same thing have said that such changes do, in fact, effect a change in the judgment.

I read what I believe is the underlying rule, which doesn't provide a precise answer to the question. One might perhaps read Rule 8.264(c)(2) to say that the Court of Appeal can decide for itself whether or not to say that a change modifies the judgment. But that surely can't be what it actually means, can it? If so, couldn't the Court of Appeal issue an opinion, wait for a while, and then eventually say "We hereby modify the appeal; in the original opinion we held that plaintiff won, but now we amend the opinion to say that defendant wins, and we hereby insert the word 'not' before every verb in the prior version. This does not effect a change in the judgment. Ha!" Or change "affirmed" to "reversed," change "We hereby instruct the court to enter a judgment for $10" to "$10 million," etc. That can't be right.

So I think that this is, in fact, actually a change. FWIW.

P.S. - I also wonder, parenthetically, what made the Court of Appeal go back and revisit the cost award after so long? The docket doesn't reflect that anyone ever filed anything in the interim. Did the panel really just wake up one day and randomly think "Geeze, you know what, now that I think of it, I don't feel like awarding costs to the prevailing party in that appeal that I decided two months ago?"

People v. Taft (Cal. Ct. App. - March 20, 2026)

Is this entire appeal about whether or not the appellant is entitled to two additional days of presentence custody credit (and thus two fewer days in prison) on his four-year sentence -- basically, as a result of a rounding error?

Yes, it is.

P.S. - He is indeed entitled to the two days. As the Attorney General concedes and Justice Stone explains in a dozen pages.

Sheerer v. Panas (Cal. Ct. App. - March 19, 2026)

Are you kidding me?!

Thomas Panas is in San Mateo county, working (presumably) for a tech company making nearly $20,000/month in salary, another $26,000/month in commissions/bonuses, and getting additional stock grants worth over $120,000 in the first three months of the year. In short, he's rich.

But he's also engaged in contentious divorce proceedings with his ex-wife over child support obligations for his two children (over whom they share custody 50/50). There's a lot of money at stake, mostly over how much the child support payments should be increased over the baseline given his expansive bonus and stock payments.

Notwithstanding what's at stake, Mr. Panas (1) represents himself pro per on appeal (despite Covington & Burling on the other side), (2) write his pro per brief with a.i., and (3) doesn't bother to check the citations or factual record cites hallucinated by the computer, or even write a table of contents, follow the rules with respect to formatting, etc.

Seriously?

Because the Court of Appeal is incredibly nice, Mr. Panas avoids getting sanctioned. But geeze.

Get a lawyer, my friend.

P.S. - He also loses the appeal.

People v. Perez (Cal. Ct. App. - March 19, 2026)

Would you retry this one?

Eric Perez gets pulled over in a traffic stop. It turns out he's been driving on a suspended license since 1993. (!) Mr. Perez could be arrested, but the officer doesn't feel like it, and cites him instead. But the officer doesn't want him driving, so has the car towed. They conduct an inventory search, find some drugs and a firearm (which, as a felon, he's not allowed to have), and charge him accordingly.

Mr. Perez says the search was illegal and moves to suppress, the trial court denies the motion, but the Court of Appeal reverses. Since the vehicle was parked legally, and the driver not arrested, there's no reasonable basis to tow. So Mr. Perez wins, and he gets to withdraw his conditional no contest plea on remand if he wants.

Here's the thing, though.

Mr. Perez was sentenced to two years probation. That was roughly a year ago -- and his offense was nearly four years ago. So he's pretty much done already, even under the original deal.

So, on the one hand, why would Mr. Perez withdraw the plea? He's pretty much done with the sentence already. Just a little more probation left. Why withdraw the plea, which was pursuant to a deal, and risk getting convicted at trial and potentially subjected to a much more serious sentence?

On the other hand, assuming that Mr. Perez withdraws his plea, why even retry the guy in the first place? Presumably he's done a fine job during his previous year of probation, and doesn't have any additional offenses in the last four years. The government thought that two years of probation was a reasonable sentence previously. Why spend the time and money on a retrial just to keep the guy on probation for another year?

This opinion is important from a policy perspective. It matters a lot whether the police are allowed to tow your car.

But practically, for Mr. Perez? Tough to really justify doing much more on remand in this particular case.

Dion v. Weber (Cal. Ct. App. - March 18, 2026)

Are you sure about this?

When you get a fraud judgment against a California corporation that doesn't pay it, you can get up to $50,000 of it from the Victims of Corporate Fraud Compensation Fund.

Plaintiffs here get a default judgment for fraud and file an application for compensation from the Fund, but their application is denied on the grounds that their claim was outside the statute of limitations. The Court of Appeal holds that's not okay; that since the plaintiffs prevailed in court (where the defendant defaulted and hence didn't raise the limitations defense), that's the end of things. Pay 'em.

The opinion says numerous times that "[a]llowing the Secretary to relitigate the merits of the underlying causes of action" would be permissible; e.g., that it "undermines the judicial goals of fostering finality and would create a significant possibility of inconsistent judgments." But the underlying statute clearly allows precisely such relitigation. Section 2288(b)(1) says: "The Secretary of State may defend any action on behalf of the fund and shall have recourse to all appropriate means of defense and review, including examination of witnesses and the right to relitigate any issues that are material and relevant in the proceeding against the fund." The underlying judgment only creates a presumption, according to the statute: "The claimant’s judgment shall create a rebuttable presumption of the fraud, misrepresentation, or deceit by the corporation, which presumption shall affect the burden of producing evidence."

The Court of Appeal responds that (b)(1) only applies to contested judgments, and that the statute purportedly creates a "dual track" such that for default judgments (like here), only subsection (b)(2) applies. (That subsection reads: "If the civil judgment, arbitration award, or criminal restitution order in the underlying action on which the final judgment in favor of the petitioner was by default, stipulation, consent, or pursuant to Section 594 of the Code of Civil Procedure, or if the action against the corporation or its agent was defended by a trustee in bankruptcy, the petitioner shall have the burden of proving that the cause of action against the corporation or its agent was for fraud, misrepresentation, or deceit.")

That's not the way I read those sections. Paragraph (b)(1) says nothing about being applicable only to "contested" actions. The word's not even in there. I read (b)(1) as saying that the Fund can relitigate anything. Period. With the proviso that there's a rebuttable presumption that the underlying judgment is correct. Paragraph (b)(2) cuts back on that, in my view, only by saying that in default cases, there's no such presumption, and the burden of proof in those cases is instead on the plaintiff (unlike in non-default cases, where it's on the Fund).

Wholly beyond the words of the statute, it seems strange to be that there'd effectively be NO statute of limitations on claims against the Fund. Can I really get a default judgment against a 1870s corporation today (because they don't show up) and get $50,000 from the Fund? That would just seem weird. Not the way things usually work.

I get the desire to compensate victims of fraud. But we've got that desire in regular lawsuits as well, yet still have limitations periods. I'm just not sure the statute here operates in the way the Court of Appeal thinks it does.

But, hey, for victims of fraud: a good opinion for ya.

People v. Jones (Cal. Ct. App. - March 17, 2026)

Justice Yegan begins this opinion by essentially summarizing it, saying:

"A defendant confined in jail in county one, cannot willfully fail to appear, as ordered, in county two. Such a defendant does not “fail” to appear. He cannot appear. He should not suffer a penalty for not appearing."

That's not really accurate, I think. For example, if county one was about to transport the defendant to county two for sentencing, and the defendant successfully resisted and refused to come out of his cell, I would think that's more than sufficient to establish a willful failure to appear. And it happens.

Perhaps a better summary of this very short opinion would be: "If a court orders someone to not commit any crimes in the interim and to appear for sentencing, it's not enough for the prosecutor to try to introduce uncertified court records to establish that he committed a crime in the interim and was incarcerated as a result. You've got to have admissible evidence."

That seems fairly self-evidently true.

People v. Riggs (Cal. Ct. App. - March 16, 2026)

Criminal cases are often depressing. You often see people at their worst. And, obviously, there are often horrific acts at issue.

This opinion involves a serious crime: assault with a semiautomatic firearm. But what struck me as most depressing was the reaction of the victim, "Jane Doe".

Jane was dating "John" (another pseudonym) but had previously dated the defendant, Riggs. Jane and John were riding together on a quad when Riggs came to the house looking for Jane. Stuff then happens:

"Father and Jane’s two brothers were at home. Riggs was angry and “talking shit” about Jane to her brother. Riggs left the house toward the street.

Riggs then saw John and Jane riding the motor bike together. Father, still in his home, heard gunshots outside. At some point, John fled on foot.

Father next heard Riggs and Jane screaming as they approached the house. Both came inside, and Father saw Jane had blood on her face. Riggs grabbed Jane’s hair and hit her multiple times. Riggs pointed the gun at Father and Brother and threatened to shoot them.

Brother ran out of the room to hide and called Mother to ask her to call the police. Mother called 911, and the 911 operator called Brother. During the call, Brother sounded scared. Brother reported Riggs was in the house with a gun, breaking things and hitting his sister. Earlier, he heard shots fired outside the house toward the street.

Riggs called the family “snitches” for calling the police. He then grabbed Jane and pulled her outside the house into the backyard.

When Jane and Riggs were outside, a Riverside County Sheriff’s Department helicopter arrived in response to a 911 call reporting a man with a gun. The helicopter’s video camera captured Riggs hitting Jane in the abdomen with his hand and then with the handle of a shovel. Sheriff’s deputies soon arrived. When they did, Riggs appeared to be lifting the shovel to hit Jane again, but he dropped the shovel on the deputies’ orders. Deputies took Riggs into custody. He had a bag of methamphetamine in his shoe.

After the incident, Jane’s face was covered in blood and swollen, and she had bruising on her face, scalp, neck, and arm. She was bleeding from her nose and mouth, and she was upset and crying. At the scene, Jane told police her ex-boyfriend, Riggs, hit her with his fist multiple times. She accepted some medical treatment but refused to go to the hospital.

Sheriff’s deputies examined the scene. Inside Jane’s residence, there was blood on the floor and the furniture. In the backyard, investigators found a semiautomatic firearm in a metal shed near where they contacted Riggs. The firearm was wrapped in a towel that had blood on it. The magazine was empty, and the slide of the gun was locked to the rear of the empty chamber, which indicated all bullets had been fired from the firearm. The firearm was capable of firing only 9-millimeter bullets.

Just north of the front of Jane’s home, law enforcement found four spent 9-millimeter cartridge cases. Further north, 75 to 100 yards from the home, they found the motor bike and three additional spent 9-millimeter cartridge cases nearby. The motor bike’s engine had been hit by two bullets, leaving one bullet hole and one strike mark.

Riggs had gunshot residue on both hands. His DNA was on the trigger, trigger guard, and slide of the gun found in the metal shed."

That's a serious offense, right? And poor Jane. She's the victim of a serious crime. You rightly feel incredibly bad for her. She has to deal with all this stuff, and God knows what she's had to deal with in the past.

What is perhaps most depressing, however, is how she elects to live her live after this whole ordeal:

"Two days later, Jane went to the hospital for her injuries. She was with John. She reported that she was injured falling off a bicycle. Medical professionals found the injuries inconsistent with her story and called law enforcement. When a Sheriff’s investigator came to the hospital, Jane was defensive and did not want to talk to him. She refused to let him take pictures of her injuries.

At the time of trial, Riggs was Jane’s boyfriend again. Although Jane testified at trial, she was an uncooperative witness for the prosecution and denied her earlier statements to the deputies. She testified that John “tried to . . . hit [Riggs] off the road” with the motor bike and she “flew off the bike” as it “wrecked”. She stated the scrapes and bruises on her face came from falling off the motor bike face-first onto dirt and pavement."

Jeeze.

Fortunately, the jury understands what's going on here, and convicts Riggs, who's sentenced to over 25 years in prison. So his personal relationship with Jane has, for all practical purposes, essentially ended. Thankfully.

Still. After all this, going back to Riggs and testifying on his behalf. A classic reaction, I know. But nonetheless profoundly distressing.

I'm a tiny reminded of the classic film noir ending: "Forget it, Jake. It's Chinatown."

Here, it's Riverside.

Olympus Spa v. Armstrong (9th Cir. - March 12, 2026)

Oh my God.