County of Del Norte v. Britt (Cal. Ct. App. - June 11, 2026)

A guy who owns a house dies intestate. No one else is on the deed, and no one claims the house. Vagrants (predictably) take it over, and it gets ugly. The County then declares the house a nuisance, gets a receiver appointed, evicts the squatters, and hauls off fourteen tons of trash, junk and debris.

All this makes sense. Good government at work.

With the following caveat.

The dead guy has two sisters. They have zero interest in the house. They never opened up a probate estate and never sought to get any of their brother's assets. The County asks them if they care at all about what happens to the house. The sisters say "No." It was their brothers'. He's dead. Deal with it however you'd like. Burn it down, for all they care.

After evicting everyone and cleaning out the trash, the receiver then rehabilitates the house, finds a buyer, sells it, and uses the proceeds to off the mortgage as well as the costs incurred by the County. But those funds weren't sufficient to fully pay the receiver's own fees.

So the receiver then asks the court to make the sisters pay his fees.

The sisters hire a lawyer, who essentially says "Hey, we didn't do anything here. It's not our house, we never wanted it, we never filed anything, and we shouldn't have to pay fees for something of which we had utterly no part." The sisters are also miffed because the receiver could have gotten a super-priority lien to make sure the receiver's own fees got paid first, but inexplicably failed to do so.

The trial court agreed, and didn't hold the sisters responsible. But when the sisters then moved to recover their fees, the trial court refused, holding that they were not recoverable.

The Court of Appeal reverses, holding that they were.

There's no way anyone should have gone after the sisters in the first place. They weren't responsible. It wasn't their house, they didn't want it, and they shouldn't be liable for something just because they're the closest relatives to someone who dies intestate. Just like someone who dies with a credit card debt, that's exclusively the dead person's problem, not the relatives'. (At least if the relatives, as here, don't want any benefit from the estate.)

I'm happy the sisters got their fees. Both in the trial court and on appeal.

 

In re Tung Trust (Cal. Ct. App. - June 9, 2026)

There hasn't been a ton of interesting action in the Ninth Circuit or California Court of Appeal lately, but I've been thinking a little about this opinion ever since it came out the day before yesterday.

It's not that I disagree with either the result or the reasoning. It's actually an outstanding opinion by Justice Fueur, and I'm totally down with everything she says. Indeed, in my mind, the case is a great example why we have appeal as a matter of right. Because sometimes, a single judge gets it wrong, and it makes sense to have three smart judges take at least a quick look at the thing (and sometimes a deeper look) to correct any errors that might have transpired. Even if in the majority of cases, the result ends up getting affirmed.

Here, by contrast, there's a reversal. And rightly so.

To me, the ruling in the trial court is a great example of how, on occasion, judges get too bogged down in doctrine and purported efforts to confine themselves to contractual (or statutory) language and, in doing so, leave common sense behind.

The question here is how to distribute the assets of a revocable trust once the settlor dies. In 2011, an unmarried mother, Ya-Ching Tung, established a trust that designated as successor beneficiaries her three adult children. Typical. Moreover, the trust contained all the usual boilerplate paragraphs about additional property that might be added to the trust, the 30-day survivor provision, a no contest clause, etc.

In 2016, the oldest of the three children died, leaving behind his three kids. That son was supposed to get the majority of the property in the trust. In 2019, the settlor (the mother) died, and shortly thereafter, in 2020, one of the two daughters in the trust also died, without issue. That left alive only one of the three original children -- the one who was originally supposed to get a tiny fraction of what was in the trust (less than 1/6th) -- alongside the three grandkids, the children of the eldest son.

The surviving daughter then becomes the trustee of the trust, and petitions to have . . . get this . . . all of the trust property given to her, because she was the only direct child still alive. She admits that California law generally says (of course it does!) that surviving children generally stand in the shoes of their parents if the parents are beneficiaries and die. But the surviving daughter says that doesn't apply because the boilerplate 30-day survivor provision of the trust "demonstrates a contrary intent" and means that the three grandchildren are totally cut out, leaving the daughter as the sole beneficiary.

The trial court agrees with her. The Court of Appeal reverses.

As I said, I'm totally on board for Justice Feuer's reasoning and result. [My bad on the original spelling, though -- sorry about that!] Spot on right.

But I was also fundamentally displeased with how the trial court went about its task here. Yes, we're interpreting a written document -- a trust. Yes, we generally follow what it says, and look to what the terms mean. Yes, I understand why a judge might (wrongly) view the 30-day survivor provision as perhaps saying that if one of kids predeceases her, that kid is treated as dead. (Though, truthfully, that provision is really just intended to avoid the problem of figuring out "who died first" in a situation in which the settlor and one of the beneficiaries gets offed in the same incident.)

But here's the thing. There's zero reason to think that that's how the settlor ACTUALLY intended her trust to be distributed. There's ZERO reason why the grandmother would purportedly want the child who she gave the least amount under the trust (less than a sixth) to have the whole thing, while leaving her grandkids out in the cold merely because their mother had the misfortune of dying first. That's not how people actually act. I'm a thousand percent confident that was not, in fact, the settlor's intent. Yet that's what the trial court ended up deciding.

Common sense should matter. Actuating the intent of the written instrument should matter. That's got to play a role. Even if you think -- and especially if you think mistakenly -- that the words in the document technically or literally mean something else.

Text matters. So does intent.

And yeah, yeah, yeah, I know the whole parole evidence rule and the like. I understand that principle. Ditto for statutory interpretation, which follows the same general principle.

But written text is often more ambiguous than what we facially perceive it to be. Particularly when, as here, we've got a very reasonable, common sense interpretation of what that written text was intended to do.

Short version: Don't lose the forest for the trees. Don't forget what we're actually trying to do in cases like this one. Yes, we're reading text. But we're also very much trying to effectuate intent.

Don't leave common sense behind.

Nelson Misconduct Complaint (9th Cir. - June 8, 2026)

There we no published opinions yesterday, but on a different website, the Ninth Circuit issued this Order, which identified a judicial misconduct complaint about Judge Ryan Nelson.

The complaint stems from a parking lot dispute in Idaho Falls in April involving Judge Nelson. Judge Nelson was ultimately charged with misdemeanor battery and malicious injury to property as a result of that incident.

I was ultimately able to find the surveillance video here. Feel free to watch it yourself, but it very much looks to me like one party to that incident was absolutely the aggressor, and one can well see why charges might well have been brought against Judge Nelson here.

It's most definitely not a good look for a federal appellate judge.

Pizzuto v. Valley (9th Cir. - June 5, 2026)

It doesn't particularly bother me when death penalty opinions recite the facts of the underlying crimes in death penalty cases even though those facts are totally irrelevant to the issue at hand. Particularly when (as here) the federal panel elects to affirm the death sentence, I understand the persuasive effect of including those facts. Plus, as a general matter, it keeps the victims in mind. Opinions that reverse death sentences typically do the same thing with respect to the childhood traumas often endured by the defendant, so there's also a rough equality there. To a degree, everyone's playing in part on everyone's heartstrings.

But, for me, intellectual honesty requires that one at least recognize the other side of the equation. Unless the opinion only talks about the relevant facts, once you've decided to add technically irrelevant pro-prosecution (or pro-defendant) facts, one should at least fairly present some details about the other side.

I mention that in connection with today's Idaho death penalty opinion by Judge Bennett. Gerald Pizzuto claims that the Governor of Idaho violated his constitutional rights by not accepting the recommendation of the Idaho Commission of Pardons and Parole to commute his death sentence to life in prison. The Ninth Circuit's opinion affirms the decision of the district court to dismiss Mr. Pizzuto's habeas petition in that regard.

As is usual in these types of cases, Judge Bennett's opinion recounts the underlying (heinous) facts of the cold-blooded murders at issue even though they're technically irrelevant to the constitutional claims raised in the petition. The opinion also highlights how consistently Mr. Pizzuto has (understandably) fought to overturn his death sentence, and how long he's been on death row at this point: 40 years.

Again, I have no objection to that.

But the opinion is simultaneously bereft of any of the facts on the other side. One searches the opinion in vain, for example, to understand why the Idaho Commission of Pardons and Parole -- not exactly a hotbed of liberalism -- would even possibly recommend that Mr. Pizzuto's sentenced be commuted to life without the possibility of parole. One is left to entirely speculate on that point; there must be at least some facts on that score, but they're deliberately omitted. And given that at issue in the opinion is at least tangentially related to whether it was rational for the Governor to discard the Commission's recommendation, leaving those facts out is particularly noticeable.

Some of those facts are that Mr. Pizzuto (1) is now 70 years old, (2) has severe Type 2 diabetes, with damage to his arms and legs that has confined him to a wheelchair for years, and (3) is in hospice with advanced, terminal bladder cancer (alongside heart disease and COPD).

Which helps at least little to understand why the Commission recommended that the state leave this suffering old man to his fate in prison rather than continue to push forward with his execution.

One need not come to a conclusion regarding whether the Commission was right or wrong in this recommendation. But a fair presentation of the facts might elect to contain at least contain a sentence or two describing why the underlying facts at issue are what they are.

C.F. v. Alternate Family Services (Cal. Ct. App. - June 4, 2026)

I mean, I get it. Appellate courts don't typically reconsider a jury's allocation of fault. It's a fact issue. Which is why the Court of Appeal leaves it alone here, and affirms a $24.7 million award.

But allocating 60% of the responsibility for the molestation to the foster agency who screened the parent, and only 35% to the father who actually did the molestation? (Plus 5% to the mother.)

Come on. No one outside the legal system would actually find such an allocation rational.

Phillips v. Volvo Penta (Cal. Ct. App. - June 4, 2026)

The Court of Appeal holds today that when a boat engine manufacturer warranties the boat engine and then replaces the engine when that engine no longer works, that's sufficient under the Song–Beverly Consumer Warranty Act -- the engine manufacturer doesn't have to replace the entire boat.

To which my reaction was, and remains, this:

Duh.

Lnu v. Blanche (9th Cir. - June 3, 2026)

I normally don't discuss many of the "AI hallucination" opinions that regularly come down these days. For one thing, they're fairly straightforward (and uniform), and all basically say "It's okay to use AI, but if you do, you must make sure to thoroughly check the stuff to make sure it's right, and if you don't, you can get into a ton of trouble." Common sense, and entirely right, so I don't have much to add to it. Plus, generally, these opinions get a lot of mainstream press and attention anyway, so it's not like it's really important for me to highlight them and express my agreement with what they say.

Today's opinion from the Ninth Circuit, by contrast, is different. It's definitely worth mentioning.

First off, it's one of the very few Ninth Circuit opinions on the subject, so it's important for anyone who's litigating in that forum. Second of all, it contains a very strong claim about what an attorney's duties are with respect to submissions that they sign -- one that might, in fact, be too strong. So it's very much worth talking about.

The first paragraph of the opinion contains a good summary of what went down in this particular case:

"Attorneys Mike Singh Sethi and William Rounds filed briefs in this Court with multiple nonexistent cases, misattributed quotations, and gross misrepresentations of real cases. Sethi and Rounds claimed that the errors were the product of innocent typographical mistakes. And they repeatedly denied the possibility that generative artificial intelligence (“AI”) might have produced the errors. Having identified other cases in which Sethi or Rounds filed briefs that presented similar problems, we ordered them to show cause why they should not be sanctioned, suspended, or disbarred from practice before this Court. We have considered their response, and we now impose discipline."

Cutting to the chase, the attorneys here ultimately get sanctioned ($2500 each); suspended from the Ninth Circuit for six months; reported to the Bar; and ordered to provide a copy of the opinion to each of their clients, opposing counsel, and the presiding judge in every tribunal in which they have a case. Ouch.

I'm not sure that anyone is going to decry what happened to these particular lawyers (other than their friends and family, of course). Among other things, the opinion stands as yet another reminder that when you're caught for something like this, don't try to defend or deflect. Just go full mea culpa. You can tell that the panel here was very much not happy about the way the attorneys here responded to the court's investigation into these events. (Lines like this one permeate the opinion: "Instead of transparency, and despite our Order to Show Cause, Sethi has apparently chosen to engage in more subtle subterfuge.")

What I really wanted to focus on, though, is the Ninth Circuit's overall articulation of what it means to be a lawyer who signs a brief in that tribunal -- whether generated in whole or part by AI, or otherwise.

We obviously all know about Rule 11 and what it means for us to sign a brief. We're responsible for what's in it. That much is clear, and undisputed.

When we write the briefs ourselves, there's no real complexity. We're in charge, and we have to make sure that everything we say is entirely accurate.

But in the real world, lawyers often delegate. Associates write first drafts. Subordinate partners take their turn. Someone high up gives it an additional read. Someone ultimately signs the thing; generally, someone fairly high up the food chain.

All of that is fine as well.

What struck me about today's opinion, though, is how the Ninth Circuit articulates the duties of anyone who signs the brief. Citing the opinion from the California Court of Appeal, here's what the panel says:

"But a competent and diligent attorney must do more than prompt generative AI, check that the citations provided by the AI are real and the subject matter roughly on point, and call it a day. Cal. Bar Practical Guidance 3 (Duties of Competence and Diligence) (“The duty of competence requires more than the mere detection and elimination of false AI-generated results.”). A competent and diligent attorney must also read and reason. The California Court of Appeal put it well: “To state the obvious, it is a fundamental duty of attorneys to read the legal authorities they cite in appellate briefs or any other court filings to determine that the authorities stand for the propositions for which they are cited.” Noland, 114 Cal. App. 5th at 445 (original emphasis). This exercise of professional judgment “cannot be delegated to generative AI and remains the lawyer’s responsibility at all times.” Cal. Bar Practical Guidance 3 (Duties of Competence and Diligence). That is, there is no substitute for “critical attorney analysis fostered by traditional research and writing.” Id.

The duties of competence and diligence also apply, of course, to attorneys who do not use generative AI and do not suspect its use in the drafts they review. And the substance of the duties is the same. “Simply stated, no brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified.” Noland, 114 Cal. App. 5th at 430 (original emphasis)."

(Emphases in original)

I fully understand why the panel says that in the present case. The lawyers here hired law students who hadn't yet passed the Bar to draft their briefs, and the AI-generated results included both hallucinated (i.e., fabricated) cases as well as numerous claims about real cases for which those cases did not stand. The panel wanted to make it clear -- and rightly so -- that one's duty is not only to cite-check cases to make sure that those cases in fact exist, but that they also stand for the proposition for which they are cited in the brief.

Fair enough. That's indeed one's obligation, and it was clearly violated here.

But there's a difference, in my view, between one's responsibility in this regard, on the one hand, and the particularized personal duty that exists to ensure that this responsibility is satisfied.

Let's just reiterate for a second the money quote from today's opinion:

"No brief, pleading, motion, or any other paper filed in any court should contain any citations—whether provided by generative AI or any other source—that the attorney responsible for submitting the pleading has not personally read and verified."

Now, I've signed a lot of briefs in my day. I'm sure so have you. The ones I wrote myself, yep, I surely personally read and verified every single citation. I'm the one that put them in, and they indeed stood for the propositions for which I cited them.

There are other briefs, by contrast, where I trusted the process. Here's my admission:

I have not, in fact, personally read every single case cited anywhere in every section of every single brief I've ever signed. Important cases? Definitely read them. Ones we (or the other side) discusses at some length, or relies heavily on? For sure.

But every single case? Even for common background propositions, or orthogonal points, or positions I already know to be unambiguously true?

No. I forthrightly admit I haven't always personally read those. I may instead have trusted that those cases say what they say (e.g., that conclusions of law are reviewed de novo on appeal) because (1) I'm confident that's right, and (2) I have faith that the lower level person who cited the case looked it up themselves and made sure that's indeed what the case holds.

Now, if my trust is misplaced, and the case doesn't exist (or stand for the cited proposition), and I fully and completely responsible for that deficiency? Yes. One hundred percent. My bad. I am the one who should -- and will -- take the hit. Without complaint. It's my obligation to make sure that the cases that are cited in a brief that I sign say what I say they say.

But it seems overly strict -- and affirmatively pernicious -- to also require the signatory attorney to personally read and verify every single case that's cited. That's excessive, in my view. It increases the expense to the client -- significantly -- and unnecessarily so. You don't need a $1200/hour partner to personally read and Shepardize every single case, no matter how minor or uncontroversial. Someone has to read them, of course. And the accuracy of those citations remains the responsibility of whomever signs the brief. But responsibility can include delegation. I'm responsible for everything my underlings do. But that doesn't mean I have to personally replicate their work. That's not only inefficient, but is also detrimental to the monetary interests of my client in cost-effective lawyering.

Are there some lawyers out there who personally read and analyzing every single case, without even a single exception, that's cited in their brief? (And, presumably, Shepardize them as well to make sure they remain good law.) Surely yes. I'm confident they exist.

But I'll nonetheless wager that the majority of lawyers -- and, to be clear, I mean the majority of good, intelligent, and ethical lawyers -- do not make that their uniform practice. They do not, in fact, make sure to personally read in every matter every single case cited in a brief. They instead, on occasion, delegate. So long as such lawyers act reasonably and understand that they remain fully responsible for everything in the brief, such a practice is not per se wrong. You're not obligated in every matter to read personally every single case.

That's my controversial statement for the day, in any event.

Just know that the Ninth Circuit thinks I'm wrong. They've now said that it's your duty as a signator to personally read and analyze every single case in the brief.

So, right or wrong, as of today, that's something you gotta do. FYI.

U.S. v. $1,106,775 in Currency (9th Cir. - June 2, 2026)

This is a very professorial opinion by Judge Bress. It's got a lot of detailed introductory material regarding the discovery process in federal civil forfeiture cases, and that material is both relevant and very helpful in assessing the opinion. Very well done and well written.

The en banc court concludes that the claimant's special interrogatory responses here sufficiently evasive and unclear to justify the dismissal of his claim. That seems right to me. Dismissal is a harsh remedy. The claimant submitted multiple responses and amendments. Were those responses lacking in a lot of detail? Sure. But they were sufficient to move the case forward. Their deficiencies, and detail, could be obtained in subsequent discovery proceedings; e.g., document requests and depositions. There was no reason or justification for dismissing his claim in its entirety. Especially, as Judge Sanchez notes, while the claimant had a somewhat powerful motion to suppress pending that, if successful, might have gutted the claims of the United States to the money.

All that's well and good, and I appreciated reading the cogent opinions.

On remand, I think that the claimant here -- Oak Porcelli -- had better go all-in on his motion to suppress. Mr. Porcelli was caught on I-80 near Reno with $1,106,775 in cash in his vehicle contained in vacuum-sealed plastic bags. Mr. Porcelli, who says he's a movie producer, claims that the cash was his, and came not from drugs, but essentially from "cash [that] never went into a bank or financial institution account" as payment for his "work[] in the movie industry for 15 years, from ~1995–2010."

Uh, yeah. There are probably lots of small-time players in the movie industry who've accumulated $1.1 million in cash over the course of their career and drive it around in vacuum-sealed bags in their vehicle. Personally, I've got around $1.3 million in my Subaru right now, all neatly packed away in smell-proof bags. Just in case I need around that much in an unexpected emergency.

Unless the motion to suppress is granted, I think that the claimant here is going to have a difficult time convincing a jury that he ended up with the cash the way he said he did.

And might even face a subsequent perjury charge.

So word to the wise:

Be careful. And, if you can, win that motion to suppress. Because I think there's a lot riding on it.

People v. Five Guys (Cal. Supreme Ct. - June 1, 2026)

Were there four different published opinions from the California Supreme Court today, involving five different individuals sentenced to death? Yes. Yes there were.

Did I read each of those opinions in their entirety? Yes. I did.

Were the underlying facts of those opinions incredibly depressing, particularly when read one after the other? Oh yes. Most definitely.

Did those opinions collectively span over 600 pages? Did it take me until nearly 7:00 p.m. to finish them all? Yes and yes.

At this point in the evening, do I feel like regaling anyone with the gruesome details of those murders, and the intimate details what some innocent people, including but not limited to multiple children, were forced to endure in the final, most horrifying moments of their lives?

No, I do not.

Suffice it to say that the published opinions today were collectively amongst the most depressing ever assembled on a single day.

People v. Bankston (Cal. Supreme Ct. - June 1, 2026)

The California Supreme Court may have approved it in prior cases, but (unsurprisingly) holds today that under the Racial Justice Act, using the "Bengal Tiger story" in closing argument isn't permissible.

(I always thought that "story" was silly anyway.)

J.O. v. Superior Court (Cal. Supreme Ct. - May 28, 2026)

Finally.

I have long been a critic -- like many others -- of blanket 170.6 peremptory challenges. They're bad for all the usual reasons; most critically, they permit repeat players (e.g., district attorney's offices) to effectively transfer a judge out of a particular department (e.g., felony or murder cases) by papering that judge in every single matter of that type. A decade ago, I talked about a Court of Appeal opinion that seriously questioned the validity of such blanket challenges on separation of powers grounds, notwithstanding the fact that the panel (understandably) felt bound by a 1977 California Supreme Court case that upheld even blanket 170.6 challenges as constitutionally permissible. At the time, I said that the Court of Appeal's opinion addressed an incredibly important opinion, and was "a long time coming."

Today's opinion was a long time coming as well.

The California Supreme Court now overrules its 1977 opinion in part and holds that blanket peremptory challenges to a judge can potentially violate separation of powers principles. It accordingly establishes a new test that's similar to Batson to isolate what it calls "bad faith" blanket 170.6 challenges from those that are constitutionally permissible. The long and short of today's ruling is that blanket papering of judges will be substantially more difficult in the future than they are today.

And for that, I applaud the Court. Well done.

I also appreciate that (1) the opinion is unanimous, and (2) that the Court in this regard is even more "progressive" than it was 50 years ago, in 1977. Today's opinion makes the world at least a marginally better place than the opinion rendered by that same tribunal half a century ago. That's progress. I'm pleased.

Do I have marginal disagreements with the opinion? Perhaps not surprisingly: Yeah, I do.

For one thing, I wasn't a huge fan of how Justice Groban initially pitched the result. His principal argument at the outset consisted of an admission that stare decisis is important but that the "world had changed" since 1977 sufficient to justify a departure from the Court's prior opinion.

That seems somewhat weak sauce to me. Do we have more cases these days? Yes. Do we have more specialized courts than previously? Of course. Do changes like that somewhat increase the dangers of blanket peremptory challenges? Sure.

But, in all honesty, that's not why the practice is unconstitutional. It had the same horrible effects then as it does now. Those harms may be slightly more serious now, but those changes are not why today's decision is correct. The California Supreme Court was simply wrong in 1977 when it validated blanket peremptory challenges. Seriously wrong. And the passage of time has only highlighted and magnified that error. It's not that the Court was right then but changes since then justify a departure. It was wrong then and it is wrong now, and I would have preferred an opinion that forthrightly said so.

I'm also not especially sold on the Court's remedial scheme. Sure, it's definitely better than what we have now (which is nothing). But I worry that it's too soft. Yes, parties should sometimes be able to establish a prima facie case of an impermissible blanket challenge. Yes, that'll require the party to submit an actual justification for their challenge rather than the barebones, conclusory statement of purported bias that 170.6 currently requires. So far, so good. (I foresee some problems with those first two prongs, but they're relatively minor, at least in the context of blanket challenges.)

It's the third stage of the process that I'm worried is too soft. Justice Groban says that all that's required at that stage is for the party making the challenge to establish a "subjective good faith" belief in the challenge. The key word, in my mind, being "subjective" (rather than objective). As long as the party making the challenge itself has a real -- i.e., not made up -- belief that the judge is biased, then the challenge is valid. Even if that subjective belief is entirely unreasonable.

That lets parties off too easily, in my view, and as a practical matter will permit a wide variety of practically blanket challenges to persist.

Parties (and lawyers) who paper judges under 170.6 almost always have a reason why they think the judge is biased against them. It might not be a good reason, but they can nonetheless come up with a reason. I suspect they'll continue to do so, even under the new rule in which that reason may (at the third stage) occasionally need to be articulated.

It's great that Justice Groban's opinion boxes out some reasons that are impermissible. You can't say you disagree with a judge's legal ruling. You can't say that they're too soft (or too hard) on crime. You can't (obviously) challenge them based on their race or gender or things like that. Great.

But there's still tons of leeway for articulated "reasons" behind a challenge. You can say that you think the judge is disrespectful. You can say you think the judge doesn't like your type of client. You can say the judge doesn't seems to like you personally. You can say virtually anything; after all, there probably is an underlying reason why you do, in fact, want to bounce the judge from your case, and most of those reasons are likely permissible under today's ruling.

And, critically, all that you have to do is to show that you actually believe what you're saying. That you have a subjective belief that such bias exists. Your view doesn't have to be reasonable, or even tethered to reality. You just gotta convince the judge that you believe it.

That's too easy a showing, in my view. We already have lawyers who routinely file blanket 170.6 challenges notwithstanding the requirement that these claims be made under oath; i.e., that they swear under penalty of perjury that they actually think the judge is biased (even though we all know full well that the advocate is really just saying that they're prefer a different judge). Do you really think that adding a requirement of subjective belief adds much of a constraint here?

Will this process limit blanket challenges somewhat? Yes. It will. So I'm happy for today's result.

But it could have been stricter. Particularly vis-a-vis the final prong of the relevant inquiry.

ConocoPhillips Alaska, Inc. v. Alaska Oil & Gas Conservation Comm'n (9th Cir. - May 27, 2026)

This one took a while to resolve. I wonder how it would have turned out if it had taken longer.

There's an oil company that wants to keep secret the details about the wells it has drilled in the North Slope of Alaska. But Alaska has passed a law that says that once the wells have been drilled, the company has to provide details about those wells to the state, which then keeps this information private for two years but releases it to the public thereafter, unless such a release would reveal trade secret information of the oil company. The oil company sues, claiming that the state statute is preempted by the federal law that opened up the North Slope to potential oil extraction. And the oil company wins in the district court.

The state files its appeal in 2023, and both sides file their briefs. The case then gets heard quite rapidly; the stat's reply brief was filed on March 4, 2024, and oral argument is held on May 20, 2024. 

The day after oral argument, submission of the case is vacated. The panel wants the views of the United States. So there's another round of briefing. The United States files its brief in September of 2024 and says that it agrees with Alaska that there's no federal preemption.

Alaska, of course, is thrilled. The oil company, less so. It files its response to the United States in January 2025. And then the case sits for a while. (Probably, in part, because it's now a "holdover" case from the prior law clerks. Lower priority.)

But here we are in late May of 2026 and the Ninth Circuit now resolves the case, reversing the district court in a unanimous opinion and finding no preemption.

As I thought about the timing of this case, I couldn't help but wonder if it would have come out the same way if the initial appeal would have been resolved along the more traditional timeline, with a substantial delay between the filing of the briefs and the oral arguments. Let's say, for example, that the initial briefs were all finished in late 2024, oral argument was eight or nine months later, and then the panel asked for the position of the United States, which filed its brief sometime in early 2026.

You may perhaps recall that some significant events transpired at around that time. I suspect that had it been the new Trump administration, rather than the Biden administration, that had filed in the amicus brief requested by the panel, the position taken by the United States with respect to this issue may have been markedly different than it was. (For example, check out this Department of Justice press release with respect to a different oil exploration case earlier this year. It's quite a bit different in both tone and content to the amicus brief filed in the present case.)

So it was interesting to me to see if timing mattered in this one. Maybe it would have come out the same way regardless notwithstanding whatever position the United States took on the preemption issue.

Or maybe not.

U.S. v. Johnsen (9th Cir. - May 26, 2026)

There were no published opinions yesterday, but there are some good ones today. I'm also in Iceland on a family vacation, so my posts may be a bit late this week. It's now almost midnight here, for example, but on the upside, it's still light outside. Sun will also rise again at 3:10 a.m. here. Crazy.

Meanwhile, the Ninth Circuit issued this opinion today, which provides some interesting detail on how federal officers look for child pornography on peer-to-peer networks. They don't even need to download the file to figure out that it's kiddie porn; they just look for specific hash marks on known child porn files to see if you have any. Yet another reason -- and there are billions of them already -- not to download or view child pornography.

The other interesting thing I noticed about the opinion was the sheer volume of kiddie porn Mr. Johnsen had on his computer. There were 140,000 images and 900 videos.

Who even has time to look at all this?! Or needs/wants it? It just seems excessive even on its own terms.

I'm also stunned that 140,000 images of child pornography even exists. Much less that one person could amass such a huge (and incredibly illegal) collection.

Maybe the child pornography industry is simply much, much larger than I ever even considered.

If so, yet another depressing commentary on the world.

Chemical Toxin Working Group v. Best Naturals, Inc. (Cal. Ct. App. - May 22, 2026)

This is another Proposition 65 (Safe Water Drinking Water and Toxic Enforcement Act of 1986) case. As Justice Richman's opinion cogently recounts, it's the third straight published opinion -- all within the last several months -- to hold that even though a notice that lists contact information for the attorney (rather than the principal) for the plaintiff, that's sufficient "substantial compliance" with the statute to permit the lawsuit to go forward.

Which pretty much makes it a consensus. There accordingly shouldn't be much additional need to litigate this point from here on out.

There are several ancillary comments contained throughout the opinion, and I agree with most of them. For example, I think Justice Richman is entirely correct when he says that there are good reason to get attorneys involved in a potential pre-lawsuit negotiation from the get-go, something that's potentially advanced by a notice that lists the attorney as the relevant point of contact. Makes sense to me.

I nonetheless wanted to point out two comments with which I might respectfully disagree.

First, after describing the initial Court of Appeal opinion that found substantial compliance in an analogous setting, Justice Richman says:

"After full and deliberate consideration, we conclude the reasoning of Pancho Villa’s is sound, we adopt it as our own, and reverse. We have only one thing to add: here, the notice plaintiff sent to the Attorney General and all 'District Attorneys of California Counties and City Attorneys' evoked no response. From this silence can be deduced that not one of the recipients deemed the notice inadequate or misleading."

Respectfully: No.

That sounds to me more like the argument of an advocate, rather than actually reflective of the real world. What it really means is that DAs and City Attorneys get these types of notices all the time and pretty much uniformly pay them virtually zero attention, relying instead on private enforcement. They most assuredly did not examine the notice and say "Well, okay, everything looks good to me here, I find that the notice requirements are met, so I'll do nothing. Let me assure you that if I thought the notice was somehow erroneous I would be right on top of it and send a letter out to the plaintiff immediately."

It's just not a very good argument.

Second, the conclusion -- and most interesting part -- of Justice Richman's opinion says the following:

"We end with a closing comment. Running through defendants’ position here is criticism . . .  that attorneys abuse the situation to generate attorney fees. This paragraph in defendants’ brief is illustrative: . . . "It is often outside counsel’s demand for attorneys’ fees (which can encompass up to 75 percent to 90 percent of a total settlement) that drives protracted Proposition 65 litigation. (Consumer Defense Group [v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185,] 1189 [(Consumer Defense Group)] [concluding in Proposition 65 private enforcement action that ‘[t]he bounty hunter lawyers wanted to get paid hefty fees, which is what the whole thing was obviously about in the first place’]; Consumer Advocacy Group Inc. v. Kinetsu Enterprises (2006) 141 Cal.App.4th 46, 49 [noting that the Legislature sought to prevent settlements ‘which simply result in inadequate public warning in exchange for payment of attorney’s fees.’].)”"

Those early 2000’s cases said what they said, the especially colorful Consumer Defense Group case chastising counsel at length with criticism after criticism, to the point it set aside a settlement. But whatever the state of affairs in the early 2000’s, there is nothing in the record to support that attorneys are currently misusing or abusing the situation for the purpose of generating attorney fees―and thwarting possible settlement. Indeed, the evidence before us indicates the contrary, HLF’s chief executive officer Steinman testifying as follows: “In every Proposition 65 case, HLF attempts pre litigation settlements that are in the public interest over lengthy litigation, and therefore designates counsel who resolves the vast majority, over 90% of HLF’s cases, without the need for litigation.”"

Ahem.

Let me make clear that I personally have no problem with providing private litigants, including their counsel, with bounties and incentives to enforce public statutes. Without a potential fee award, private enforcement in these settings would not occur because it would make zero economic sense. Permitting private enforcement may also be more effective, and perhaps even more cost-effective, that authorizing enforcement only by public officers (read: people paid with taxpayer dollars). Permitting fee awards in such case, paid by corporations that may have violated a statute, may also rightly shift the cost of such enforcement from the general public at large to the actual consumers of those products, a pro-efficiency move.

But let's not pretend that these cases aren't often -- very often -- lawyer- and fee-driven.

This is not some "early 2000's" reality. It's the nature of the beast, and remains so to the present day.

I would prefer to defend that situation on the merits rather than pretend that lawyers in this area are not out to make a buck. They are. For sure. (They may also perhaps be genuinely interested in making sure that public warnings about potentially cancerous chemicals exists. Perhaps. But let's be real. This is an industry that's about the money. As many, many industries are.)

The fact that the plaintiff's firm here (err, ahem, "the public interest group" here) resolves the vast majority of its cases pre-litigation -- often because the defendant sees the writing on the wall and puts up a notice in order to forestall a potential fee award -- is entirely irrelevant to the issue of the economic incentives behind the law firms that specialize in this area, much less "proof" that the interests of those firms are genuine and not motivated entirely by profit.

Lots of industries -- indeed, most of them -- are motivated by a desire to make money. You think that the founders of chemical plants, or food manufacturers, or Mark Zuckerberg or his ilk were centrally motivated by making the world a better place? Consider me unpersuaded on this point, at best.

Lawyers may (or may not) care about the causes they represent. Hopefully they do.

But let's be honest: Everyone's also gotta eat.

Greely v. Greely (Cal. Ct. App. - May 20, 2026)

Bigamy works!

Here, it saves the subsequent "spouse" -- who married her husband three years before he actually obtained a divorce from his former wife -- from a levy of nearly $400,000 on her financial accounts.

That's how we roll down here in San Diego. Three cheers for the efficacy of plural marriage.

Citizens Against Marketplace v. City of San Ramon (Cal. Ct. App. - May 19, 2026)

I haven't been able to find the petition for rehearing that resulted in this amendment by the Court of Appeal, but it was apparently at least successful at getting a bench slam (largely) removed from the opinion.

Here's the amendment:

"Appellant’s petition for rehearing is DENIED. The court remains concerned about, and does not excuse or condone, appellant’s counsel having attributed a quote to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. However, we read appellant’s petition for rehearing to concede that it was unnecessary to reach the CEQA argument addressed in footnote three of the opinion. Accordingly, the opinion, filed on April 24, 2026, shall be MODIFIED as follows: On page 14 (in the unpublished portion of the opinion), footnote three is deleted."

Here's the relevant part of that deleted footnote:

"We summarily reject Citizens’ argument that the city effectively approved the project, for CEQA purposes, early in the planning process when the planning commission notified TRC, in compliance with a process set by the Housing Accountability Act, that the application was not inconsistent with the city’s objective standards. Citizens forfeits this startling assertion by failing to present a comprehensible and reasoned argument explaining how the authority it cites furthers its position. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)

In one instance, in its opening brief, Citizens goes so far as to attribute a quotation to Schellinger Brothers v. City of Sebastopol (2009) 179 Cal.App.4th 1245 that does not exist in that opinion. We caution Citizens’ counsel that similar conduct in the future could be cause for sanctions."

Cite checking: Probably a good idea.

Nuanmanee v. Superior Court (Cal. Ct. App. - May 18, 2026)

Yes, sometimes criminal plea negotiations do indeed take place -- both figuratively and sometimes literally -- on the courthouse steps, on the day the trial is about to start.

Similarly, for scheduling reasons, courts sometimes (indeed, often) schedule trials for the last day on which those trials may be commenced consistent with the defendant's constitutional and statutory rights to a speedy trial.

As a result, many times, jurors are called to court for a trial that pleads out. Particularly in small counties (here, Siskiyou), that's sometimes a hassle for the court administrator.

The Court of Appeal nonetheless holds that the way around that problem is not to "start" the trial at 4:15 p.m. -- in a department 90 minutes away -- despite the fact that no potential jurors are actually present. It doesn't count as "starting" a trial, on the last day of the defendant's speedy trial rights, to "say" that a trial is started and deal with administrative matters (e.g., motions in limine) and then actually start the trial the next day.

That's one day too late.

Can I suggest a solution for future court administrators in light of the Court of Appeal's ruling?

How about "starting" the trial a couple of days before the speedy deadline expires, rather than the very last day?

Like a lot of things in life, avoiding problems is often a lot easier when you don't wait until the day they are due.

(And, yes, I know this goes against the grain of many, many lawyers out there who always wait until the last day to file something. Including, at times, myself.)

People v. Mitchell (Cal. Supreme Ct. - May 18, 2026)

This is gorgeous.

I'm always a little bit worried when a court decides to reject the positions of both parties in a case. There's a danger in such settings that the tribunal is doing something without adequate briefing or consideration.

But here, the California Supreme Court's disposition seems not only entirely reasonable, but equitable as well. (I also love that Justice Corrigan's introductory paragraphs almost entirely spell out both the issue as well as the ultimate resolution.)

The first three paragraphs of the opinion tell you all you need to know:

"We are once again called upon to consider “the intersection of [the] statutory scheme of plea bargaining and the retroactivity rule of [In re] Estrada [(1965) 63 Cal.2d 740.]” [Cite] Defendant Sunee Lynn Mitchell accepted a plea bargain, entered the standard waivers, and agreed to an upper term sentence on one felony count of a multicount information. While her case was pending on appeal the Legislature amended Penal Code1 section 1170, which governs California’s determinate sentencing law. The amendment now requires that the facts used to justify an upper term be stipulated to or proven beyond a reasonable doubt at a jury or court trial. [Cite] The parties agree this statutory amendment applies retroactively to nonfinal judgments under Estrada. Mitchell’s further assertion that the plea bargain, as constituted, did not satisfy the current statutory requirements is likewise not contested by the Attorney General.

The parties’ point of disagreement centers on the effect, if any, of section 1170(b)’s provisions on the negotiated disposition. Mitchell argues she should continue to have the benefits of her plea bargain, including the dismissal of counts and insulation from exposure to a substantially higher sentence. However, she urges the upper term sentence she agreed to should be reduced to the middle term. The Attorney General argues the agreement should be enforced in its entirety because the trial court did not impose a sentence under the provisions of section 1170(b), but rather upon the terms of the bargain.

We reject both positions. We hold that defendants like Mitchell, who agreed to an upper term sentence as part of a plea bargain, may seek the retroactive benefit of section 1170(b)’s amended provisions to their nonfinal judgments. We reverse the Court of Appeal’s contrary holding and direct that the matter be returned to the trial court in a manner similar to the approach adopted in People v. Stamps (2020) 9 Cal.5th 685 (Stamps). On remand, Mitchell may either waive or invoke section 1170(b)’s requirements. If she reaffirms her acceptance of the plea bargain and waives the rights now conferred under section 1170(b), the court shall reinstate the original sentence as negotiated by the parties. If she declines to enter that waiver, in lieu of further proceedings the parties may agree to modify the existing plea bargain and accept a midterm base sentence on count 4, then seek the court’s approval of that downward departure. Absent a modified agreement and approval, Mitchell’s remedy is to withdraw her assent to the bargain, in which case Mitchell’s plea will be set aside and the parties returned to a pre-plea posture. At that point they would remain free to renegotiate further if they choose or to proceed to trial."

I totally agree.

A deal's a deal. But if circumstances then materially change, the deal gets reconsidered. If both sides still want to go through with it, great. But if either side wants to back out, that's fine too.

Hurrah.

Colonial Manor, Inc. v. Reyes (Cal. Sup. Ct. App. Div. - May 15, 2026)

Imagine that you're a landlord in Santa Monica and you've rented a place to an elderly tenant for a long time for $666/month. After he dies, you want to increase the rent for the place to the market rate, which is $3500/month. But his caregiver apparently married him a little over a year before he died, and says that she's entitled to stay in the place at the original rate. So you have your attorney file an eviction action, and it proceeds apace.

Then imagine that you see who's representing the surviving tenant: Munger, Tolles & Olson.

Shucks for you.

P.S. - The landlord loses.

Cardenas v. LAUSD (Cal. Ct. App. - May 11, 2026)

Woe is you.

Appellants briefed the case and were in the 2/5 (Second District, Division 5). They were likely fairly happy with that; as you probably know, it's a fairly well-respected group of justices.

Then, after the initial briefing was finished, on October 15, in an entirely different appellate case, there was a recusal in the 2/8. So that case got transferred to the 2/5.

In return, "to equalize workload," the Court of Appeal transferred this case to the 2/8. (None of this is in the opinion, by the way -- it instead comes from the appellate docket.)

That's a different panel, of course. With its own personalities. Including Justice Wiley.

As a direct result, you now see this two-page opinion. Authored by Justice Wiley. An opinion that you're more likely to see in the 2/8 than the 2/5.

That opinion reads, in its entirety:

"The trial court granted summary judgments against Jose Cardenas and his 21 fellow plaintiffs. This group appeals but has forfeited its objections to the summary judgments. The group’s opening brief asserts facts supported only by citation to its briefing in the trial court. That trial court briefing also cites no record evidence. We affirm on grounds of forfeiture.

Cardenas and the fellow plaintiffs were school safety officers, school police officers, police detectives, or other school security personnel. We refer to the group as Cardenas. The employer, the Los Angeles Unified School District, required vaccinations during the Covid-19 pandemic. Cardenas did not want to comply. Claiming religious objections, Cardenas sued the school district.

There were several bases for summary judgment against Cardenas. One was that accommodating religious objections would impose an undue hardship on the school district: unvaccinated employees would imperil students by exposing them to disease.

On appeal, Cardenas’s opening brief sets forth the supposed facts of the case by citing only to three pages of his trial court brief opposing the school district’s motion for summary judgment. These three trial court pages themselves contain no record citations. They are just three pages of something Cardenas’s same lawyer wrote in the past. On none of these pages is a citation to record evidence. Nothing is under penalty of perjury.

This appellate practice violates the cardinal rule that appellate briefs must fairly summarize the facts and must support factual assertions with record citations. [Cite] The purpose of this rule is to allow courts to decide the appeal by locating and examining the key record evidence. [Cite] Appellate records can, of course, be massive; simply asserting “it is somewhere in there” is no good. And the decisive issue can be the proper interpretation of a possibly ambiguous bit of testimony from a deposition or declaration. [Cite] Sometimes the proper interpretation of a single sentence or word decides everything.

Because appellate courts commonly must grapple with intricate details within a sizeable case record, we need record citations to get us started on this exacting work. Failing to give us the essential appellate material forfeits the argument. [Cite] We affirm the judgment and award costs to the respondent."

Could a similar opinion have been written by a different panel? Of course it could.

It's just somewhat more likely -- and predictable -- here.

P.S. - It's at least small solace that the only lawyer who's on the brief for the appellant no longer works for that firm, and instead moved to Morgan & Morgan. So he's not around to have to explain this one to his (now former) bosses.

J.N. v. Goldberg (Cal. Ct. App. - May 11, 2026)

There were no published opinions until late yesterday, but this one finally came out.

It's a great opinion for anyone who wants to file frivolous motions or complaints. As active litigators well know, under the Court Reservation System used in Los Angeles and several other counties, you have to reserve a hearing date and then file the underlying motion within three days of that reservation (or some other set number of days in other counties). Failure to do so vacates the hearing. As a result, you've got to have your motion ready (or nearly ready) to file when you reserve your date.

That's usually no problem.

But with sanctions motions under Section 128.5, as you likely know, you've got to give the other side a 21-day safe harbor notice period. You've got to (1) serve the motion on the other side, (2) wait 21 days, and (3) then file the motion.

This is typically no problem; what's usually done if that you prepare your sanctions motion, serve it on the other side with a blank hearing date (because you can't get one yet), and then after the 21 days has expired, you file and serve the motion (again) with the noticed hearing date.

The Court of Appeal, however, holds that this is improper, and reverses the $19,000+ sanction award here. The panel holds that if you leave the hearing date blank in your initial notice copy -- which you're required to do, since you can't get a hearing date -- that's insufficient under Section 128.5, so you can't get sanctions.

The Court of Appeal recognizes, albeit implicitly, that this means that parties can never get sanctions under Section 128.5 in Los Angeles or similar counties. Too bad, it holds. That's what the statute says.

So at least for now, go crazy. You can't be sanctioned. Congratulations.

Ultimately, if this opinion holds, I suspect that Los Angeles and other counties will, in due course, change their CRS system to allow sanctions motions (unlike regular motions) to reserve a hearing date without the requirement of filing the motion within 3 days. Which in turn will mean that you will be able to reserve sanction hearing dates with abandon, and drop them 21 (or 30, or 60) days thereafter. That may make a slight mess of the reservation system, but we'll deal. (It may also result in occasional late-opening hearing dates.)

Until then, though, it'll be a largely sanction-free world. We'll see how that goes.

People v. Robinson (Cal. Ct. App. - May 8, 2026)

It's surprising to me that the California Attorney General's Office decided to take an appeal in this one.

California entitles certain incarcerated individuals to petition to be resentenced. But as of January 1, 2025, this entitlement does not extend to -- and to be clear, I'm quoting here -- "an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole."

The Legislature passed that amendment because it wanted to make sure that Richard Allen Davis, who was found guilty of the high-profile kidnapping and murder of 12-year old Polly Klass, was not eligible for resentencing.

The statute says that you're not entitled to resentencing if you've been "convicted of a sexually violent offense [] and sentenced to [] a life term without the possibility of parole." Does that exclusion apply to someone who, like Henry Robinson here, was sentenced to life without parole but NOT convicted of a sexually violent offense?

In other words, does "and" in the statute mean "and," or does it instead mean "or?"

The trial court held that it did, indeed, mean "and." Gotta be both. The Court of Appeal affirms.

Justice Detjen's opinion seems obviously correct to me. It's not even close.

If the Legislature feels like changing the law, of course, it's free to do so. But, generally, "and" does indeed mean "and." Particularly when, as here, other portions of the statute make clear that the Legislature knows how to use the word "or" when it feels like it.

Yep. 100% right.

P.S. -  I wish I could run a 3-hour half marathon at age 68!

In re O.M. (Cal. Ct. App. - May 7, 2026)

"On January 7, 2025, the Department filed dependency petitions on behalf of then two-year-old O.M. and then one-year-old E.M. . . . [C]ount b-1 alleged that on December 30, 2024, O.M. “was taken to the emergency room (ER) due to a leg injury he received in [father and mother’s] care. . . . [O.M.] suffered a broken femur in his parents care . . . . The parents’ recollection of how the injury happened were initially different stories. [O.M.’s] injury is the result of a significant impact. Neither parent flew with [O.M.] from Humboldt to Oakland. The parents were not staying bedside with [O.M.] while he is being treated at UCSF. [Mother] left the hospital during [O.M.’s] surgery and was not able to be reached. [O.M.’s] broken leg, the parent[s’] lack of information as to how the injury occurred and the parents’ absence [at] the hospital places [O.M.] at risk of serious physical harm . . . .”

Count b-2 alleged that O.M. “is being treated for malnutrition in addition to his broken femur. He is less than 1% for his height and 1% for weight for his developmental age. The evidence of his malnutrition are his elevated levels of vitamin D-12, Microcytic anemia (iron deficiency), and his vitamin D and phosphorus is low. The mother was observed by hospital staff to be watering down [O.M.’s] soy formula. . . .

The report also noted that O.M. was diagnosed with speech and developmental delay. UCSF offered Mother services to address these diagnoses but she declined."

Ugh. 

People v. Mijares (Cal. Ct. App. - May 5, 2026)

This may seem obvious, but if it's not, this opinion makes the underlying principle clear:

Just because someone's going to eventually die doesn't mean you can kill him. It's still murder.

Juan Cordova was an elderly, homeless guy with serious liver and heart conditions. The coroner says he'd likely have died within three or four years.

Mark Mijares had a serious drug problem. After taking methamphetamine and staying awake for a full week, in a drug-induced psychosis, he inexplicably focused on Mr. Cordova, shouting "I'm going to take you out." He then pummeled Mr. Cordova with a brick, punched him, kicked him, covered his head with a plastic bag, and stabbed him in the neck, killing him. Mr. Cordova didn't die instantly, but instead lingered in the hospital for a week before dying of his injuries.

Mr. Mijares argues on appeal that his offense might only be attempted murder because Mr. Cordova would have died anyway. Quite understandably, the Court of Appeal disagrees.

Yep.

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?