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

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

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

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

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

If only so trial courts know what to do.

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

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

Here's Judge Wu's take:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well done. 

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

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

Still, I appreciate the effort.

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

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

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

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

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

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

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

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

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

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

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

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

That sounds wrong, no?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I got a number for both brothers:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Don't be greedy. Even a little.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Yay for Plaintiffs.

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

Which is clearly the right call.

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

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

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

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

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

K.J. v. Jackson (9th Cir. - Feb. 11, 2025)

It's always exciting to read a published Ninth Circuit opinion about a lunchtime fight in a high school just across the street from the school your children attend. So I read with interest Judge Paez's opinion this morning that reversed the grant of summary judgment to various school officials who suspended a student from La Jolla High School (with a recommendation of expulsion) without giving him the opportunity to review the evidence against him or present his side of the story.

You'd have thought that, particularly given these facts, the school district would quickly and easily settle the case, especially since the relief that the student sought appears to be minimal (i.e., removing record of the extended suspension from his files). Apparently not. 

Instead, the school district will now likely have to continue to pay its own attorneys, but also plaintiff's counsel as well.

Sometimes it's better to work things out if you can. And sometimes it's better to make sure to listen to both sides before trying to expel someone from school.

U.S. v. Thompson (9th Cir. - Feb. 10, 2025)

People might have differential reactions as to which prong of the following equation is the more erroneous of the two, but I feel fairly strongly that at least one of the prongs is wrong:

Part I: Lamar Thompson gets convicted in state court of child molestation of someone under 12 years old -- presumably (though the opinion doesn't expressly say so), his 10-year old stepdaughter and his friend's 8-year old daughter) -- and is sentenced to serve a year in prison. (An additional 68 months of the sentence was suspended.)

Part II: After his release from prison, a co-worker finds videos on Thompson's phone of him molesting his 10-year old stepdaughter and his friend's 8-year old daughter. That's child pornography. For which he gets sentenced, this time in federal court, to 28 years in prison.

So he gets sentenced to one year in prison for actually molesting the kids, but 28 years in prison for taking a video of it.

Doesn't exactly seem like the correct ratio, eh?

Gharibian v. Wawanesa Gen. Liab. Co. (Cal. Ct. App. - Feb. 7, 2025)

Nope. Nope, nope, nope, nope. With all due respect to Justice Ashmann-Gerst, and while I totally get why she comes out the way she does, I hope that the California Supreme Court (at least) decides to depublish this opinion, or to grant review.

The question is whether there's insurance coverage when there's a wildfire near your home but it doesn't burn down. (You can see how timely this issue is at present, right?) Here, there was no burn damage, but there was (allegedly) a ton of ash that rained down on the property, trashed the home's carpets, clogged up the swimming pool, etc. So the homeowners made a claim.

Personally, from at least the way Justice Ashmann-Gerst wrote the opinion, I thought that the insurance company here (Wawanesa) acted more than reasonably. They inspected the property, calculated that it would cost roughly $4300 to "clean the property inside and out" (carpets, HVAC system, etc.), and offered a contractor who would do the work for that price. Later, after the homeowners gave Wawanesa a different estimate, the insurance company paid over $20,000 (including the deductible) to make everything right, and the homeowners "cleaned up" the property themselves rather than hiring anyone. So they're up nearly $20,000 after the claim. But still sued, claiming that they should have been paid more.

Again, given these facts, at least as recited by the Court of Appeal, I'm inclined to think that this is most definitely not a case where the insurance company is acting unreasonably, or where the homeowner has been screwed out of a legitimate recovery. So I can see why Justice Ashmann-Gerst wants to -- and does -- rule in the insurance company's favor.

But the Court of Appeal holds that, as a matter of law, that there was no coverage whatsoever for the wildfire damage here. That because the house didn't actually burn down, and because the ash could be physically removed, there was no insurance coverage at all.

Nope. Nope and no. Not for me, anyway.

Justice Ashmann-Gerst centrally relies on the California Supreme Court's latest COVID-19 insurance coverage opinion, which held that the COVID virus doesn't cause "direct physical loss" to a business property. But ash is different -- way different, IMO -- than a virus. The reasons restaurants shut down during COVID-19 was because they were closed down, and business owners couldn't get around that reality by seeking insurance coverage for "physical damage" to their property allegedly because the virus purported "stuck" to the restaurant's chairs, tables, etc. That's why that case came out the way it did.

A fire is different. Ash is different. We expect that a homeowner's insurance policy will apply to damage from a fire. When the home burns down. When the home narrowly avoids burning but gets scorched. As well as when the home narrowly avoids scorching but gets covered in ash from -- as here -- a fire that burned a mere 800 yards away.

The definition in the California Supreme Court's COVID-19 case is that to be "direct physical loss" under an insurance policy, there needs to be a "physical alteration to the property" that "need not be visible to the naked eye, nor must it be structural, but [] must result in some injury to or impairment of the property as property.” COVID-19 might not qualify, but ash does. The Court of Appeal is correct that ash -- like a virus sitting on a restaurant table -- might perhaps be “easily cleaned or removed from the property" and does not  “alter the property itself in a lasting and persistent manner."

But LOTS of things that constitute insurable direct physical loss are like that. When someone writes graffiti on your home, that's easily painted over or removed and does not permanently alter the nature of the property itself, but it's darn sure covered. Ditto for those burn marks from a fire; they too can be removed, and maybe they're barely even noticeable, but you've definitely got coverage for that as well.

The California Supreme Court says that there's got to be "some injury to or impairment of the property as property." Let me tell you this for sure: When the bed in your bedroom is covered in ash, there is an "impairment of [that] property as property." You can't -- and won't -- use it for a bed until it's cleaned. Ditto, typically, for the swimming pool. Ever feel like a nice leisurely swim in a pool that's covered by a half-inch of black, wet ash? I think not. The property, qua property, is directly injured. On the Court of Appeal's theory, ash still doesn't cause property damage even if it's 8 feet deep and fully occupies the entirety of your living room. "You can just remove it." Yeah, sorry. We can, but it's still covered, and the insurance company has to pay for removing it, not me. It's damage; it damages my ability to enjoy and use the property for its intended function. It's covered.

It's possible, here, that the ash was so de minimus as to not create coverage. Though that seems a factual issue that can't be entirely resolved here in an MSJ. It's also possible (indeed, perhaps likely) that the $20,000 or so that the insurer actually paid fully -- or more than fully -- covered the actual loss. Great. If so, the insurer will win at trial. 

But to hold, as here, that ash -- like many other things -- categorically does not cause an insurable loss as a matter of law just seems starkly wrong. As well as pernicious, particularly at a time in which there are a LARGE number of people who were in fact recently injured in precisely such a fashion and who are likely in the midst of making precisely the types of legitimate (IMHO) insurance claims at issue here.

I've never made a homeowner's insurance claim for ash. Likely never will. Didn't do so even when quite a bit of ash rained down on my home as a result of the Cedar Fire back in 2003. I just cleaned it up and moved on.

But if there's a wildfire, and ash rains down and stains your carpet or mucks up your pool or simply needs to be cleaned up (like graffiti), I think you legitimately expect -- and paid for -- coverage for that. You should be entitled to make a claim if you want. It counts. It's covered. You should be paid for the costs of cleaning the stuff out.

So I think, with respect, that this one is wrong. Maybe an equitable result given the $20,000 that the insurance company already paid (and hence depublication would be fine), but wrong on the law.

Stubblefield v. Superior Court (Cal. Ct. App. - Feb. 5, 2025)

It's crystal clear that even after an appeal has been filed, a trial court retains jurisdiction to grant a convicted defendant bail on appeal(if it so chooses), notwithstanding the fact that the merits of the conviction are pending appeal. Section 1272 of the Penal Code expressly says so, and CCP 916 only deprives the trial court of jurisdiction of the underlying conviction, not ancillary matters (like bail).

This case, however, involves a slight twist. The Court of Appeal here reversed the defendant's conviction and remanded the case for a new trial, the Attorney General promptly petitioned the California Supreme Court for review, and in the meantime, although the remittitur of the Court of Appeal's opinion had not yet issued, the defendant then filed a motion for bail on appeal.

Does the trial court have jurisdiction to hear that motion?

The trial court thought it didn't, and on that basis, denied the motion. Defendant then filed a writ, saying the trial court was wrong.

On appeal, the Attorney General's office conceded error (notwithstanding the contrary view expressed below), and today, the Court of Appeal agrees. Just like a trial court has the power to entertain a bail motion pending appeal, the trial court also has the power to entertain a bail motion while the case is still technically on appeal because an opinion has been rendered, and the conviction reversed and remanded for retrial, but review was sought and the remittitur has not yet issued.

Makes total sense.

One final point. The defendant here is Dana Stubblefield. That name may perhaps sound familiar. The opinion nowhere mentions it, but he's a longtime -- quite famous -- player in the NFL, and he played for (amongst others) the 49ers and Raiders. Convicted of forcible rape, and currently facing a retrial.

One more point, actually. I was VERY surprised at the end of the opinion to see that Mr. Stubblefield had an appointed attorney for his (successful) writ petition. My guess is that the guy made at least $50 million during his decade-plus NFL career. Plus endorsements etc. Yet still ostensibly qualifies as indigent.

Not what I expected at all.

People v. Hin (Cal. Supreme Ct. - February 3, 2025)

You can read the California Supreme Court's entire 144-page (death penalty) opinion if you want, but what I found to be the most interesting -- or at least the most unusual -- part starts on page 120.

It's about penalty phase stuff, and in particular, the victim impact testimony here. Appellate courts grant  lower courts huge leeway in this arena, so I'm not surprised in the slightest that the California Supreme Court finds that there was no reversible error.

Nonetheless, I thought the dynamic in the trial court warranted at least mention.

It's a murder case (of course), so at the penalty phase, the prosecution has the murdered victim's seven year old brother testify. That testimony is heart-rendering, as might perhaps be expected. The boy talked about how his brother was in heaven now, how they used to play together, how much he missed him, etc.

What I thought was unusual was how the trial judge reacted. He's a judge, obviously, but he's also human. And he was particularly struck by the little brother's testimony. So much so that, essentially, he started to "nearly" tear up.

As he felt himself doing so, he turned away from the jury so they wouldn't see him. And at the end of the little boy's testimony, the judge was still so verklempt that he didn't even feel like he could excuse the jury himself; he wrote a note and had the clerk do it. Presumably so the jury wouldn't hear his voice potentially break as he did so.

(Here's a snippet of what the trial judge put on the record in that regard: “I will say that during the testimony yesterday afternoon, when that little boy . . . testified and with tears streaming down his face, talking about never seeing his brother again and missing his brother because he wouldn’t be able to play with him again, it did affect me and — however, I was on the verge of having a reaction. In other words, I didn’t have tears in my eyes, but I didn’t want the jury to see me, so I turned so the jury would not see me. But I will say I didn’t trust myself to speak. . . . Not even to say recess, and so that’s why I wrote to my clerk to have — to have her recess the jury and I left because I didn’t want the jury to see me, and — although I didn’t have — in other words, while I wasn’t crying, half the courtroom was crying, I could hear, but it was just one of those situations where, yes, that little boy affected me and I will say this, I have a weakness for small children in distress and it’s the first time that’s ever happened to me in court in almost 22 years, but my main concern was to hide my reaction from the jury. So far as I know, the jury didn’t see anything. Judges are human, too. So I will put this in — make this part of the record.”)

I get it. It's emotional. Even for judges sometimes. No harm in being human. And it seems to me like the judge was totally careful and professional here. No reversible error.

Still. Unusual. This type of stuff doesn't usually get to judges, who are used to hearing some incredibly disturbing (and sad) stuff.

But sometimes it does.

Election Integrity Project v. Lunn (Cal. Ct. App. - Jan. 30, 2025)

It may well be that the Court of Appeal got this one right. But if I were the appellant, even wholly beyond losing on the merits, I would be bummed at the somewhat cursory way the opinion is written.

It's a real appeal, with real arguments. The Elections Code says that interested parties can have observers when elections officials count mail-in ballots. For good reason. We're a democracy. We like openness. We want to dispel any potential impression that there's hanky-panky going to when ballots are counted. It's not like irregularities in counting ballots are absurdly inconceivable, after all. Granted, the United States is not Venezuela. But perception, as well as reality, is important.

Appellant here, EIPC, observed the ballot counting in Ventura in the 2020 and 2021 elections. Which they were entitled to do under the Elections Code. The appeal is essentially about how close the observers were entitled to be to the actual counting. Elections officials put them in a particular spot, and they had to stay there. From that spot, the observers could see that the elections folks were, in fact, comparing signatures on the ballots to the recorded signatures of those people. But they couldn't see the actual signatures; they were too far away. So while the observers could see the overall "procedure" the elections officials were using -- i.e., that, yes, they were comparing signatures -- the observers couldn't see if those officials were actually doing their job correctly, or how exactly "close" the signatures had to be before they were verified (or, conversely, before they were bounced as not matching each other).

The statute itself doesn't directly answer this question. It says that "vote by mail voter observers shall be allowed sufficiently close access to enable them to observe the vote by mail ballot return envelopes and the signatures thereon and challenge whether those individuals handling vote by mail ballots are following established procedures, including all of the following: [¶] (1) Verifying signatures on the vote by mail ballot return envelopes by comparing them to voter registration information." You could interpret that in one of two ways. You could perhaps say, like the trial court, that this just means that the observers need to be close enough to make sure that some comparison is taking place. Or you could perhaps say, like EIPC says, that to be able to effectively "challenge" that process, you've got to be able to at least see the two signatures -- and can't tell if the "procedure" used by the elections staff is valid or not if you can't see what's being compared.

There are decent arguments on both sides. Rational people could likely come to differing conclusions on that point. The answer is not obvious, at least to me.

But Justice Gilbert seems to think otherwise -- or at least that's the keen impression one receives from reading his seven-page opinion here. I know it's Justice Gilbert, so of course, one is not surprised that it's a concise and somewhat breezy disposition. (Especially when, as here, the opinion is initially unpublished.)

Still. It's an important issue. A serious dispute, in my view. One might have wanted to address the issues in a bit more exhaustive detail. If only because (1) election integrity is a fairly fundamental component of a democracy, and (2) there are, in fact, real reasons why one might want to enable observers to actually be able to do their jobs rather than just participate in a superficial overview of the process.

I'm not necessarily saying that Section 15104 of the Elections Code allows observers to get in close and actually see the signatures. Maybe it does, maybe it doesn't. Reasonable minds may differ on this one.

But it's a real issue. So even as an outside observer interested in the process, there might have been at least a little more that the Court of Appeal could have done here.

IMHO.

Bakos v. Roach (Cal. Ct. App. - Jan. 29, 2025)

The statute -- Section 597.1 of the Penal Code -- does indeed seem to expressly grant someone who has their (allegedly neglected) animals seized the right to a prompt post-seizure hearing to contest the seizure. So when plaintiff was deprived of that right, he's got a cognizable claim. So holds the Court of Appeal.

I like post-seizure hearings; they're an essential element of due process, particularly when required by a statute. So I appreciate the Court of Appeal's reversal of the judgment below.

Nonetheless, the seizure of the allegedly neglected animals here was done by the Humane Society, and I expect (though don't know for sure) that they had a darn good reason to seize the animals that they did. I would not at all be surprised to learn that they were, in fact, neglected.

So I'm not sure that the plaintiff will recover meaningful damages (if any) at the end of the day. And if the animals were indeed neglected, I'm not confident that he should -- or that, even if he recovered them, that he should be allowed to keep them, as opposed to, say, transferring them to the animals who were abused (by, for example, giving those damages back to the Humane Society to reimburse it for the costs that they incurred in treating the injured animals).

All that will be ascertained in due course. For now, there's still a lawsuit. Albeit one that I would strongly hope would be resolved without the need for substantial additional litigation.

One can always hope.

Johnson v. High Desert State Prison (9th Cir. - Jan. 27, 2025)

I felt whipsawed on this one.

I noticed at the outset that (1) it was an opinion from Judge Callahan, (2) joined by Judge VanDyke, (3) involving the rights of prisoners. So I felt fairly confident at the get go, even without more, about how the opinion would come out.

Then I read the first paragraph of the opinion, which was all about the Prison Litigation Reform Act of 1995 and its desire to curtail lawsuits filed by prisoners. That reaffirmed my keen sense of how this one would end up. One usually doesn't begin an opinion with glowing words for the PLRA if you're going to find in favor of the prisoner(s).

But then I get to the second and third paragraphs, which describe the facts. Three prisoners had filed a civil lawsuit together, but the district court refused to allow them to do so, finding that joinder of such lawsuits by prisoners was improper under Rule 20 given the "unique status" of prisoners. The third paragraph then says: 

"We reverse. The PLRA does not prohibit prisoners from proceeding together in lawsuits, and the district court’s denial of joinder was not based on the record before it."

What?! A pro-prisoner rights case from this panel?!

Then I get to the very next paragraph of the opinion, which starts to recite the law. It begins with:

"The idea that all citizens should have access to the courts no matter their ability to pay can be traced back to the Magna Carta. See John MacArthur Maguire, Poverty and Civil Litigation, 36 Harv. L. Rev. 361 (1923). England codified this principle in the late 15th century, guaranteeing that “the poor Persons of this Land” could bring suit for “the Redress of Injuries and Wrongs to them” without paying court fees. 11 Hen 7 c.12 (1495)." 

I started doubting that I had read the caption correctly. This is Judge Callahan speaking? It sounds like an opinion written by some mushy-headed liberal. Is she really waxing poetic about the Magna Carta, the need for even impoverished citizens to have access to courts, and the like? I felt like I was suddenly in Bizarro World, where everything was the opposite of normal. Had there been a serious transporter malfunction somewhere?

It takes me until at least halfway through the opinion until I start to realize what's going on. Yes, the Ninth Circuit is indeed reversing the refusal to allow the three prisoners to file a lawsuit together. But, at the same time, the panel is holding that if the three prisoners really want to file together, they have to each pay the full filing fee, as opposed to non-indigent prisoners, who only have to pay a single filing fee.

So poor people have to pay more than rich people.

Ah! Now I get it. Now I understand why the opinion has the judicial support that it does, as well as why Judge Graber partially dissents.

Now the world is the "normal" one I expect.

Carmichael v. Cafe Sevilla (Cal. Ct. App. - Jan. 25, 2025)

Conducting a rap competition on your premises in which various competing gangs sing rap songs and flash gang signs to opposing gang members in the crowd may well not entail an "ultrahazardous" activity under California law, as the Court of Appeal holds here.

Though I will add that it's not entirely un-hazardous as well. As the shootings here amply reflect.

Villagomez v. McHenry (9th Cir. - Jan. 24, 2025)

Based on today's Ninth Circuit opinion, here's how I (hypothetically) imagine the semester began when this case was assigned and being briefed:

"Hello there. Welcome to the Immigration Clinic at UNLV Law School. (Yes, I know our formal name is the William S. Boyd School of Law.) As you know, our clinic gets live cases from the Ninth Circuit and we brief and argue them, which is an exciting educational experience for not only the students, but the teachers as well.

We have a great one for you this semester. It's a case where the United States is seeking to deport a non-citizen of the United States -- Romio Villagomez, a citizen from the Federated States of Micronesia -- based on Mr. Villagomez's state law conviction. We think that Mr. Villagomez has a decent argument for remaining in the United States, because he's a good person and because while, yes, we was convicted, he received an entirely suspended sentence (of 24–60 months).

That's the good news. Here's the bad news. He was convicted of battery resulting in substantial bodily harm. And federal law expressly provides for deportation when a non-citizen has been convicted of a violent crime. So we'll be arguing that "battery resulting in substantial bodily harm" is not a "crime of violence."

Yes, that's what we'll be arguing. Not exactly intuitive, I know.

Here's the fun part, though. You'll get to know the ins and outs of the incredibly complicated distinction between the "categorical" and "modified categorical" and all the other detailed differences that exist in this particular doctrine. An issue that confounds (and often upsets) a huge number of appellate judges. Sounds exciting, right?

Good news, though. Most of the arguments on our side have already been made in a couple of Ninth Circuit dissents. So we'll often be just reiterating what smart people like Judge Fletcher has already said.

Though I want to reiterate that those were dissents. Our arguments already lost. And the panel we'll argue in front of will be bound by those decisions.

But, at the end of the day, we're going to argue that the existing Ninth Circuit holdings aren't dispositive. Because we'll say that they held that attempted battery is a categorical crime of violence, but in our case, we have a completed battery -- causing substantial bodily harm, no less. So we'll say that an attempt gets you deported, but a successful battery doesn't.

No, I did not get that backwards. That's what we're going to have to argue.

Oh, one last thing. I'm a little-known psychic, so I already know who our panel is going to be. It's going to be two Bush appointees and one Trump appointee.

What a fun semester it will be, eh?! On to victory!"

Yep. That's exactly how I imagine the conversation went.

People v. Brown (App. Div. Sup. Ct. - Jan. 22, 2025)

I'm always excited about published opinions from the Appellate Division of the Superior Court because they often involve oft-recurring conduct, which is often why the Appellate Division elected to publish the opinion in the first place. I am doubly interested when, as here, the opinion is from San Diego.

The Appellate Division holds here that someone who's on GPS monitoring isn't entitled to custody credits for that period. First off: I'm totally on board for that result. It seems entirely sensible and correct. If you're out of jail, on GPS monitoring, allowed to walk free about town as you wish, with the only limitation that you're not allowed to harass or get within 100 feet (or yards, or whatever) of a domestic violence victim and the like, yeah, that's not like being in jail -- or even on house arrest -- so, no, you don't get custody credits. (P.S. - You shouldn't be harassing people in the first place.)

So I'm extraordinarily sympathetic with the result.

But I actually think it's somewhat hard to actually get there given the actual law.

Under the statute and caselaw, you get custody credits in situations like the one here if you're in a program in which you're required to "(1) remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator; (2) admit[] persons into his or her residence at any time for purposes of verifying compliance with the conditions of his or her detention; and (3) [wear] a GPS device or other supervising device."

There's zero doubt that Mr. Brown here meets the latter two requirements. He definitely has to wear a GPS device, and he had to submit a Fourth Amendment waiver as well. So the fight is only about the first of the three requirements.

And, as to that one, the Appellate Division understandably -- and correctly -- says that there was nothing in Mr. Brown's supervision that required him to be at home. He just had to stay away from the victim's work, home, etc.

So he wasn't required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," right?

Not so fast.

Yes, it's true that the court didn't require him to remain at his home during any particular period. But that's just a different way of saying that "the hours designated by the correctional administrator" during which he was required to remain at home were zero.

The defendant in Gerson (the central case discussed in the Appellate Division), for example, was entitled to custody credits even though he has a ton of time in which he was free to roam outside of his home. He could be at work between 7 a.m. and 6 p.m. (and even as late as 8:30 p.m. on Wednesdays), could spend the night at his girlfriend's house three days a week (thanks!), could do personal errands for 90 minutes a day, etc. The restrictions changed over time, but the point is that at many points during which he was entitled to custody credits, he was not required to be in his home virtually at all -- and, when he was spending those three nights a week with his girlfriend, he might well spend ZERO time at his own home.

Imagine that the release conditions expressly said as; i.e., that initially he had to spend, say, 8 hours at his house, but eventually that time went down to 4 hours, then 1 hour, then zero. But he still had to wear the GPS and be subject to unannounced home searches. It seems to me like he's entitled to credits for all those days: it's just that, at the end, while he was indeed required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," it turns out that those "designated hours" were zero.

How's that different than here? Where the court, essentially, says in the first instance: "Yeah, you gotta wear the GPS and be subject to home searches, but your 'designated hours' in the home are zero."

Or what about if the Court said "You gotta wear the GPS and be subject to home searches, and you are required to be in the home during any home search." That home search may only take 15 minutes, but the guy was nonetheless required to "remain[] within the interior premises of his or her residence during the hours designated by the correctional administrator," so he'd get custody credits for the full amount of time he was on GPS monitoring. (Not just the 15 minutes he was at home.)

The point is this: Textually, I think there's actually a decent argument that maybe Mr. Brown should get credit for his time. Even though the Appellate Division here thinks it obviously goes the other way.

One more thing. Somewhat of a double whammy for Mr. Brown.

Not only does Mr. Brown lose on the custody credit issue, but he apparently loses this issue even though no one raised it on appeal. The trial court gave him custody credits. His trial counsel filed an appeal, but then simply filed a Wende brief saying that there was no nonfrivolous appellate argument on his behalf. So Mr. Brown was basically an automatic loser.

But then the Appellate Division sua sponte raised the custody credit issue, and found against the guy on the merits.

So the guy ends up net negative on his own appeal. He appealed based on nothing. The City Attorney didn't appeal at all. And yet the guy ends up spending more time in prison.

He'd have been better off never even filing an appeal.

Tough for the guy, eh?

Again, I'm extraordinarily sympathetic to the result. You shouldn't get custody credits, in my view, if you're solely on GPS monitoring rather than actual house arrest.

It's just not so easy to get to that result as it might otherwise appear.

People v. Villagrana (Cal. Ct. App. - Jan. 21, 2025)

The Attorney General rarely concedes error in a criminal case. Particularly, as here in a murder case.

It's even rarer for the Court of Appeal to nonetheless reject that concession. Yet it happens today.

It's a resentencing case, and the Attorney General admits that on the limited record introduced in the trial court, there was insufficient evidence to prove that Javier Villagrana -- who pled no contest to voluntary manslaughter -- was actually guilty of murder. Nonetheless, Justice Yegan, joined by Justice Gilbert, holds that he was in fact guilty of murder, and hence ineligible for sentencing. Justice Baltodano dissents.

It's a fact- and record-specific case, so ordinarily, I wouldn't think that the matter would go any further. But given the stakes, as well as the disagreement in the panel, I wouldn't be extraordinarily surprised if the California Supreme Court granted review.

I suspect -- strongly -- that Justice Yegan is correct that Mr. Villagrana was in fact guilty of actual murder. But I also suspect that Justice Baltodano might well be correct that the actual evidence introduced in the trial court below was insufficient to support that conclusion. Because, at least in theory, there may perhaps be lots of ways in which Mr. Villagrana could have been only guilty of voluntary manslaughter, rather than murder, that are consistent with the limited record introduced below.

We'll see if this piques the attention of anyone higher up.

Mamer v. Weingarten (Cal. Ct. App. - Jan. 17, 2025)

I'm going to have to add today's opinion to my current seminar class (taught Friday mornings) on the Law of Intimate Relations. The Court of Appeal holds -- seemingly for the first time -- that, in California, a trial court has discretion to order a biological mother to reimburse the biological father for one-half of the costs of an in vitro fertilization procedure they used to conceive a child.

To be clear, the Court of Appeal doesn't say that the trial court is required to make such an order; only that it may permissibly do so in its discretion. Moreover, here, the mother allegedly agreed to pay half of the IVF costs -- though the Court of Appeal holds that this agreement is only one of the various factors that the trial court might consider in exercising its discretion. (Accordingly, it may well be that, in a different case, a mother might perhaps be permissibly ordered to reimburse these costs even if she never agreed to do so.)

The Court of Appeal holds that the relevant statute authorizes such an order, and it's easy to see why. Section 7637 of the Family Code provides: "The judgment or order may direct the parent to pay the reasonable expenses of the mother’s pregnancy and confinement.” Well, the costs of IVF do indeed facially seem to be part of the "reasonable expenses of the mother's pregnancy." So you can see why the Court of Appeal holds that the statute means what it says.

Mind you, sometimes, we create public policy exceptions to otherwise clear statutory mandates. For example, one of the topics we discuss in my seminar is whether a parent can sue the other parent for fraudulently saying they're on birth control when they're not, and thereby recover the expenses that the defrauded parent was required to pay for the child. There's a rule against fraud, of course, but lots of cases hold that our public policy desire for child support, or other social principles, trump the usual rule in this context. You could see a similar argument here, and one might argue that we don't want fathers being able to sue for IVF repayments because it might reduce (or at least offset) child support payments made to the mother, it might be inequitable since both parties consented to the creation of the child (somewhat akin to an "assumption of the risk" argument), etc.

But, at least for now, repayment for half of the expenses of IVF is on the table.

Cole v. Superior Court (Cal. Ct. App. - Jan. 15, 2025)

You probably remember (perhaps vaguely) from constitutional law the difference between how laws against a suspect class are treated (for which strict scrutiny review applies), a non-suspect class (for which rational basis review applies), and a quasi-suspect class (for which intermediate scrutiny applies). By applying different scrutiny to laws against different groups, the judiciary's doctrinal jurisprudence attempts to ensure that everyone does indeed receive equal protection of the laws while nonetheless authorizing the government to make permissible and supportable distinctions between different groups.

This tripartite jurisprudence, however, requires us to figure out which groups belong in which category. An undeniably difficult task.

Racial distinctions get strict scrutiny. Understandably so. (Ditto for alienage and national origin.) Gender distinctions receive intermediate scrutiny. (Same for illegitimacy.) Lower-level distinctions -- for example, laws that distinguish between different types of hot dog vendors -- receive only rational basis review.

Deciding which category different groups falls into involves several different factors, but the biggest (and most expansive) one is basically how these groups have been historically (mis)treated. The bigger the history of misconduct and discrimination, and the more the particular group has historically been excluded from the overall public sphere, the higher the level of governmental review.

Which makes sense. The more we know that a group is historically discriminated against, the more we should be cautious that existing governmental distinctions continue -- or are a vestige of -- that historical discriminatory treatment.

This Court of Appeal opinion involves the question: What category of equal protection review applies to laws that differentially affect people with an intellectual disability (i.e., in the language of old opinions, the "mentally retarded")? Strict scrutiny? Intermediate review? Rational basis?

If you were on the California Supreme Court (or the United States Supreme Court), what would you decide?

There's no doubt that, like race or gender, developmental disabilities are fairly immutable. There's also a fairly long and substantial degree of discrimination. Indeed, at one point in our nation's history, the U.S. Supreme Court even approved the involuntary sterilization of individuals based upon that characteristic.

So how does this group compare to race-based, or gender-based, or other group-based discrimination, in your view? What level of scrutiny would you apply given this historical (and perhaps contemporary) treatment)?

The Court of Appeal says that rational basis review applies.

Do you agree?

L.W. v. Audi AG (Cal. Ct. App. - Jan. 15, 2025)

If you were a huge nerd in law school and are just itching for more personal jurisdiction hypotheticals, take a look at today's opinion from the Court of Appeal, where the issue is whether Audi AG -- which is the German parent -- can be sued in California for selling a defective Audi in California through its U.S.-based distributor.

Fortunately, you've got a "model answer" that goes both ways. The majority says that Audi AG can indeed be sued here, whereas the dissent says that, at least on this record, it can't.

So your answer is "right" either way. Depends on which professor grades your exam.

(Coincidentally enough, first-semester 1L grades just came out today at my school, so I'm definitely in an exam-pondering -- and exam-grading -- mode.)

Nissanoff v. UnitedHealthcare Ins. Co. (App. Div. - Jan. 14, 2025

I'm confident that the appellant, surgeon Jonathan Nissanoff, is an exceptionally bright person. But he's bringing an appeal on a quite complicated legal issue -- whether the Knox-Keene Act properly applies to the particular insurance company at issue in this lawsuit.

And he's doing it pro per.

I'm a reasonably intelligent person as well. But just like I wouldn't conduct surgery on myself, I'm not certain that Dr. Nissanoff should have represented himself on appeal.

The Appellate Division affirms.

In re Marriage of Goldman (Cal. Ct. App. - Jan. 10, 2025)

When I first started reading this opinion, I was disinclined to believe the Court of Appeal's result. The parties got divorced in 2009, there were letters back and forth about what stock was to be split etc., the parties discussed the matter in 2010 and their lawyers sent letters back and forth, but then basically ended their discussions and let the matter stand as it was.

Fast forward to 2018 and 2020, when the ex-wife restarts the process by filing various motions with the trial court, which dismissed them based on laches. That sounded about right to me; there was zero reason for this eight-year delay.

But the Court of Appeal reverses. As I said, I was initially dubious.

Ultimately, however, Justice Dato's opinion persuades me. Maybe there was the required prejudice, but maybe not. We'll have to learn more, precisely along the lines his opinion discusses.

I'm convinced.

Oh, and since the case arose in San Diego, I felt like looking up the parties a tiny bit. The ex-husband is a cosmetic dermatologist down here, and apparently does extraordinarily well. The ex-wife also has a very interesting story; here's her quite expansive take ("Truth vs. Lies") on her life and the underlying marriage.

Interesting stuff.

People v. Superior Court/White (Cal. Ct. App. - Jan. 13, 2025)

That's a huge, huge swing. From the original life without possibility of parole -- the sentence imposed by the trial court -- to a resentencing under newly-enacted Section 1172.6 of . . . two years.

To reiterate: from LWOP to two years.

Huge swing.

Today's another huge swing. The Court of Appeal reverses the two-year resentencing and reimposes the LWOP sentence.

Not a good day at all for Mr. White.