Sellars v. Rose (Cal. Ct. App. - Nov. 9, 2026)

I've thought about this case a fair piece of the last couple of days. I decided to write something about it.

Reasoning from first principles, it seemed to me like a relatively easy case. Upon reflection, I still think that the correct result is fairly straightforward.

But the Court of Appeal comes out the other way.

The facts, at least, are straightforward. Karen Rose accuses John Sellars of molesting her from 1978 to the early 1980s when she was ballet classes with him as a child. The assaults allegedly started when Ms. Rose was 11 and continued until she was 15 or 16 and quit his studio.

Mr. Sellars was also accused of sexually assaulting other minors, and sometime in the 1980s, was criminally charged with molestation. This was a high-profile trial that purportedly split the community, with strong feelings on both sides. The jury ultimately acquitted him.

In 2022, the Legislature revived the statute of limitations on various childhood sexual assault claims, and Ms. Rose (and three other alleged victims) filed civil suits against Mr. Sellars. This new development also attracted some press attention. In 2024, Ms. Rose went on a podcast hosted by her friend and accused Mr. Rose of molesting her and five other victims, whom she identified by name.

Mr. Rose then filed his own suit against Ms. Rose, for slander per se, claiming that these statements were untrue. Ms. Rose responded by filing an anti-SLAPP motion, which the trial court granted.

As to the first prong of the anti-SLAPP inquiry, the Court of Appeal holds that the cause of action arose from a matter of public interest, and that seems right to me. The real fight, I believe, is about the second prong: whether Mr. Rose can demonstrate the "minimal merit" sufficient to let his claims go forward.

The Legislature in 2023 was concerned about people filing SLAPP lawsuits against alleged victims who made molestation claims, so enacted Section 47.1 of the Civil Code. This statute creates a privilege for "communication[s] made by an individual, without malice, regarding an incident of sexual assault," so long as the speaker “has, or at any time had, a reasonable basis to file a complaint of sexual assault."

So the dispositive question her is whether Ms. Rose (1) made her statements with malice, and (2) had a reasonable basis for her statements.

There are some ancillary statements as issue, as well as some statements about other people, but the core claim at issue is the statement by Ms. Rose that Mr. Sellars sexually assaulted her. Viewing all conflicts in the evidence and reasonable inferences in Mr. Sellars' favor, is there enough evidence that Ms. Rose (1) acted with malice, or (2) lacked a reasonable basis when she made her public claim that Mr. Sellars sexually assaulted her?

Mr. Sellars (and other witnesses) swore that he did not, in fact, sexually assault Ms. Rose at any time (and that the same was true for other alleged victims). Ms. Rose swore that the opposite was true. That dispute, of course, is one for a jury; at the anti-SLAPP stage, we believe the evidence of the nonmoving party. So we assume for purposes of the motion that the statements made by Ms. Rose were untrue.

But Ms. Rose says that Mr. Sellars hasn't shown either malice or lack of reasonable basis, and that her anti-SLAPP motion must accordingly be granted.

Here's my take:

We have to assume for purposes of the anti-SLAPP motion that Ms. Rose was not telling the truth when she said that Mr. Sellars molested her. If that's in fact the case, I believe that this demonstrates malice as well as lack of reasonable basis. It is not like Ms. Rose doesn't know whether she was molested by Mr. Sellars. She says he did, he says he didn't. One of them is not telling the truth.

If someone deliberately falsely accuses someone of raping them over a four year period. I think that demonstrates malice. At a bare minimum, it shows reckless disregard for the truth. The fact that you're (allegedly) willing to falsely accuse someone of a horrific crime -- if that's what a jury in fact concludes -- demonstrates malice towards that person.

It also independently demonstrates lack of a reasonable basis for the charge. The accusations here are incredibly detailed. It is not like someone can simply be "mistaken" (or forgot) what transpired. (That might be true is some molestation cases, but not here.) If everything that Mr. Sellars says is true -- and, again, at this stage, we have to assume that it is, although a jury may well ultimately disagree -- then Ms. Rose did not have a reasonable basis for her directly contrary public statements. So the statements would not, in fact, be privileged under Section 47.1.

The Court of Appeal says that the fact that Ms. Rose was emotionally distraught as a result of the events at issue isn't sufficient to establish malice, and on that point, I agree.

But that's not the core evidence, in my view. The core basis for malice and/or lack of reasonable basis is the purportedly deliberately false charge of rape. That's sufficient, in my view, for the case to proceed.

A jury will ultimately decide who's telling the truth. If it's Ms. Rose, then I have zero doubt that it will (appropriately) enter a huge judgment against Mr. Sellars. If, by contrast, it's Mr. Sellars, then the jury will evaluate what damages he suffered as a result of falsely being accuse of rape.

That seems to me to be the correct result. Not the dismissal of this action by a judge at this preliminary stage.

People v. Chism (Cal. Ct. App. - Nov. 9, 2026)

There's a lot to be said for the result here. But I wish that Justice Hull's opinion would perhaps been a bit more moderate and nuanced.

Mr. Chism has been sentenced to 60 years in prison, but is dying, and wants compassionate release. The Department of Corrections wants that too; they don't want to have to spend all the state's resources on his medical care, which is not a core DOC function. They would rather release the guy, have him go on Medi-Cal (paid for with substantial federal, not state, dollars), and then die in 16-19 months on someone else's dime.

That's what the Legislature wants too. Which is why it passed a statute that requires compassionate release in particular cases. Like this one, says Mr. Chism.

Justice Hull analyzes the statute and notes, correctly, that compassionate release also requires a postrelease plan. The Legislature doesn't want the Department of Corrections simply dumping these people on the street, after all. Hence the rule.

Here, as Justice Hull explains, and for the precise reasons identified by the trial court, the postrelease plan submitted with respect to Mr. Chism wouldn't work. The plan was to have him live with his sister, but that doesn't jibe with his parole requirements.

Fair enough. So there's no adequate postrelease plan, and the Court of Appeal cogently explains why. And on that basis, affirms the trial court's decision to refuse compassionate release.

But in reaching that result, I think the Court of Appeal doesn't give sufficient weight to either the statutory text or its purpose and structure. Yes, the statute does indeed require an adequate postrelease plan. But I think it's important to note that this plan is not an obligation of the defendant; it's a requirement imposed on the Department of Corrections. The statute says that compassionate release must be requested (and, if there's no danger to the public, granted) if the "incarcerated person has a serious and advanced illness with an end-of-life trajectory." That seems to be the case here (though Justice Hull is correct that given the trial court's holding on an unrelated point, there's no actual finding in this regard).

The statute also says that “any recommendation for recall submitted to the court by the department” must include a “postrelease plan.” True enough. That's what the Court of Appeal holds did not properly happen here, and it's why the trial court denied compassionate release.

But denying the defendant release from prison because someone else didn't do their mandatory duty under an express statute hardly seems fair. The defendant suffers because the DOC can't get its act together? Is that really what the Legislature intended? So even though the Legislature expressly wanted non-dangerous prisoners released when they're terminally ill, the Department of Corrections can nonetheless keep them in prison until they die by not submitting a proper postrelease plan? That's what the Court of Appeal seems to hold, and I'm not confident that's the proper remedy. At the very least, I would like the issue explored in depth; an analysis that doesn't really exist in today's opinion, which is more categorical and casts itself as the obvious result of a statutory command.

Do I want there to be a proper postrelease plan for Mr. Chism? Of course. Do I want him released without one? Like the Legislature; no, not really. I want the DOC to do what the statute requires -- not only for the sake of the public, but also for Mr. Chism's sake. There should be a plan for how we're going to get this guy housing and medical care once he's released; at a bare minimum, so he doesn't spend his last months on this Earth in agony.

But is the solution categorically to just keep him in prison until he dies? That's the solution that the Legislature intended? That's the solution that the statute affirmatively requires?

Those are the issues I would like to see addressed. Because I think the problem here is a nuanced one, rather than one easily and simply solved by a purported statutory command.

Timothy S. v. Sarah H. (Cal. Ct. App. - Nov. 3, 2026)

This opinion is about attorney's fees, and I have no problem with how the Court of Appeal resolves it. But I nonetheless wanted to mention it because of what the trial court did below.

It's a case from Riverside. Sarah's an unmarried teenage mom who has two infant children, and Tom (I made that name up) is the father. When one of the kids was 17 months old, Sarah lost custody, and the baby was raised by Tom's father -- the child's grandfather -- Timothy (alongside his wife, the child's grandmother).

For roughly two years, the grandparents raised the kid. Eventually, Sarah cleaned up her act and regained custody of the child.

Things then seemed to be going fine for a couple of years. But in 2024, Sarah cut off the grandparents from seeking the child -- someone they'd raised for almost as long as the mother. For whatever reason, Sarah didn't want her baby-daddy's parents in her child's life.

At which point the grandparents asked the court for visitation. They wanted one weekend a month, plus two dinnertime visits each month, alongside a weekly video call.

To me, that's not an unreasonable request at all. Maybe I would shorten the requested "weekend" visit to a Saturday or Sunday. But two dinners every month? Seems 100% fine. Particularly for grandparents who voluntarily stepped in to raise a child when the mother lost custody. And the additional weekly video call seems totally reasonable.

What visitation does the trial court permits the grandparents to have, you ask?

"A five-minute phone call with the children once a month."

What?!

This seems incredibly parsimonious to me. Unless the grandparents are monsters, and the mother a paragon in child-rearing, that is quite a bit different than the order that I would have been inclined to enter were I the trial judge.

Not technically relevant to the appeal at issue. But still. It struck me as incredibly harsh.

Srinivasan v. Milestone Financial LLC (9th Cir. - Nov. 4, 2026)

I'm glad that Judge de Alba comes out this way. While I'm sympathetic to people who find themselves in dire financial straits and need to file for bankruptcy, I'm ruthlessly unsympathetic to people who abuse the process. So while I agree with today's opinion that the text of the statute (and precedent) do indeed allow debtors the absolute right to dismiss their bankruptcy petition (as long as they do so timely), it thrills me that the Ninth Circuit simultaneously affirms the district court's decision to bar the appellants here from refiling another bankruptcy petition during the next year.

You can read the full opinion for more details about the particular procedural moves the debtors here employed, but this snippet from page 21 will at least give you a sense:

"Here, the bankruptcy court considered Appellants’ multiple bankruptcy filings, repeated failure to fully prosecute those petitions, and their conduct in the instant case, such as failing to submit necessary documents and failing to appear at hearings. One of the Appellants, though the record is unclear which one, has previously had a 180- day bar against them. Despite their significant history in bankruptcy court, both Appellants failed to appear at the hearing on the motion to bar them from filing. The Court infers that a lack of schedule filings and other documentation in their past bankruptcy cases is due to repeated bad faith filings. Moreover, the Appellants have been living rent/mortgage free in their home for multiple years during the pendency of these proceedings, and they only filed bankruptcy cases—the twelfth and thirteenth cases filed by the Srinivasan family—when the Appellee attempted to evict them from the home by foreclosure or other action. Based on this record, the bankruptcy court reasonably calibrated the refiling bar to Appellants’ specific history in bankruptcy court."

Oh yeah. Indeed, had I been the judge, they'd have been barred from refiling for much longer than a year.

SEIU v. DOJ (9th Cir. - Nov. 3, 2026)

Luck of the draw.

The Department of Justice threatens to arrest state officials if they count ballots from people the DOJ lists as potentially ineligible to vote. The district court concludes that the purported list is terrible and that the federal government has no authority here and enters a TRO enjoining the threats. The DOJ asks the Ninth Circuit for an immediate stay.

The panel draw is Chief Judge Murguia (an Obama appointee), Judge Callahan (a Bush appointee), and senior Judge Bea (a 92-year old Bush appointee). The two Republican appointees agree to stay the district court's order, and the Democratic appointee dissents.

The Ninth Circuit then pretty much immediately vote to take the case en banc and vacate the panel's opinion. No draw; every active judge gets a vote on that one.

But then there's another draw for the 11-member en banc panel. Chief Judge Murguia is automatically on it, and although Judge Bea is senior, so ordinarily wouldn't be eligible, since he was on the panel, his name goes into the hopper as well.

The ultimate draw: 6-5 in favor of Republican appointees. Including senior Judge Bea.

So, today, the en banc panel votes to reinstate the prior panel's opinion (and stay).

To reiterate: Luck of the draw. (Or, depending on your perspective, lack thereof.)

Johnson v. Adgar (9th Cir. - Nov. 2, 2026)

The jury found that during the George Floyd protests in San Jose, Officer Adgar fired his weapon into a crowd of largely peaceful protesters, thereby injuring an innocent bystander, rather than firing at someone in particular who allegedly threw a bottle.

The majority opinion (by Judge Tallman, joined by Judge Bennett) concludes that this constitutes unlawful excessive force, but holds that this right was not clearly established. Judge Paez dissents in part, arguing that this right was indeed clearly established. (The majority also certifies a pendent state law claim to the California Supreme Court for clarification of the relevant state law standard.)

Neither the majority nor dissent mention it, but since the dispute is about whether a particular right is clearly established, I thought it might be worth noting that this is far from the only time a state officer has indiscriminately fired his weapon into a largely peaceful protest and thereby injured innocent bystanders. One of these events was well-known even before the founding our our Republic, and one might even argue instrumental in its founding. I'm pretty sure it was well-established even then that this was no good, and in derogation of our natural liberties. Another indiscriminate firing into a group of largely peaceful protesters transpired somewhat more recently, and the reaction thereto was similarly fairly uniform.

I understand that the relevant issue is the level of generality; how "specific" does a holding have to be before state officers are expected to realize that certain conduct is excessive. But, with respect, as to this particular issue -- firing your weapon indiscriminately into a group of largely peaceful protesters -- my own view is that everyone knows full well that this isn't allowed.

From the 1770 to the present day.

Hanna Carroll Restaurant v. Hagestad (Cal. Ct. App. - Oct. 29, 2026)

Lest there be any doubt that some people in Orange County have lives far different from mine, this opinion puts that uncertainty to rest.

Here are its facts, with my contemporary reaction in brackets:

"The Hanna Group operates a high-end restaurant in Orange County. Hagestad and his wife (collectively, the Hagestads) were apparently so impressed with their dining experience there in March 2022, that they contacted the Hanna Group’s chief operating officer, Dave Hanna, after their meal. [I do not generally eat at high-end restaurants, and definitely have never contacted a restaurant's COO after my meal.]

They told Dave Hanna that their son would be competing at the Masters the next month in Augusta, Georgia. [My children are quite far from being sufficiently good at golf to qualify for, say, the Masters.] They asked the Hanna Group to provide meals for their family and friends for the entire week of the Masters. [I generally do not provide meals for my entire friend group for an entire week; perhaps I am a poor host?]

The Hagestads and Dave Hanna corresponded as the Masters approached. The Hagestads expected between 20 to 30 people for each meal. [I do not even have that many friends, much less that would I decide to feed that many people for a week.] Dave Hanna sent them a proposed menu that included breakfast and dinner for seven days, which the Hagestads approved. The parties did not sign a written contract. Nor did they ever discuss the price of the requested food and services. [I'm a lawyer; I most assuredly would not make a similar mistake.]

At the Masters, the Hanna Group provided the Hagestads with breakfast, dinner, and a full bar for five days, serving an average of 25 guests per meal. The Hagestads praised the Hanna Group’s food and service. They sent Dave Hanna a text message after the Masters saying, “We just want to thank you for everything this week. The staff, the food, everything was perfect.” Then the bill came. The Hanna Group sent Hagestad an invoice for $74,960, which included a $5,000 discount. Hagestad balked at the amount." [Okay, on this one, I'll admit, I would have balked too. Seventy five grand for a week? Wow.]

The case goes to trial. (The parties really couldn't find a middle ground in this one?!) The jury awards the restaurant a little over $60,000. The resulting appeal is about some RFAs and some taxed reporter costs, and the Court of Appeal ends up affirming.

I clearly am not in the same league as these people. By my calculations, even at $60,000, and even at the maximum 25 people for 7 days for breakfast and dinner, that's $171/meal. For dinner; okay, maybe, I guess. But for breakfast?! That's a lot, no?

Admittedly, there was also an open bar. I suspect that added a fair piece to the total.

Still. I love my friends. But not at sixty grand a week.

One last thing. I noticed that Justice Moore's opinion drops a footnote that reads: "While the proposed menu included meals for seven days, the record indicates that the Hagestads unexpectedly left the Masters two days early." (Which, by the way, means that the average meal actually cost around $240 per person.) The word "unexpectedly" struck me as unusual, but it wasn't hard to figure out what this really referred to. The Hagestads presumably left because -- though the opinion doesn't mention it -- their son shot a 160 during the first two days, thereby missing the cut by a solid 12 strokes. On that front, I'm fully with the Hagestads; I ain't sticking around the Masters after my kid's out of the thing either.

Regardless: Different worlds.

Chamber of Commerce v. Bonta (9th Cir. - Oct. 29, 2026)

An employer has a First Amendment right to force its employees to attend a mandatory three hour meeting at which it extols the virtues of President Trump -- or Gavin Newsom, take your pick -- and vociferously exhorts his virtues and strongly suggests that its employees vote for that person at the next election. The employees aren't a "captive audience" because they're free to quit their private sector jobs.

So holds the Ninth Circuit, in a panel consisting of Judges Paez, Tallman and Bennett.

Add this to the list of areas -- like unlimited campaign contributions -- in which private economic power can substantially affect (or, if you prefer, distort) the marketplace of ideas.

People v. Hall (Cal. Supreme Ct. - Oct. 26, 2026)

There are two things about this California Supreme Court opinion that are seriously confusing to me.

First, I cannot figure out why the Court decided to take the case. It's a unanimous opinion, so it's not an exceptionally difficult case, but that's not particularly unusual. It also reaches the correct result; but, again, that's not surprising either. The statute itself basically answers the sole question; as the Court itself begins its opinion:

"Penal Code section 417.3 makes it a felony to brandish a firearm in a threatening manner in the presence of a motor vehicle occupant 'in such a way as to cause a reasonable person apprehension or fear of bodily harm.' Does this brandishing offense require proof of both objective and subjective apprehension or fear? We conclude the statute requires only objective fear — i.e., that the brandishing would cause a reasonable person apprehension or fear, regardless of whether a particular victim actually experienced such fear."

Yeah. When the statute says "reasonable person," it means . . . reasonable person. Not the subjective belief of the particular victim here. Duh.

So the Court took up the case because the lower court opinion was obviously erroneous, right?

Nope. The Court of Appeal said the exact same thing, and the California Supreme Court unanimously affirms. So no need to displace the existing appellate opinion.

So it must be that there's a split in the lower courts? Nope. This is the only appellate opinion on the issue. The California Supreme Court's opinion doesn't disapprove of any other case.

So, for the life of me, I can't figure out why the Court thought it was important to take this one up. Maybe it's got a lot of free time these days? No idea.

Second, I would have sworn that I wrote something about the Court of Appeal's opinion at the time. I definitely remember reading it, and thinking that it was spot on right. I was absolutely confident that I posted something about the case on the day it was published. But I searched my posts; nope, nothing.

I even checked with a.i., which insisted that I had written something about it, and then described -- in exhaustive detail -- what I wrote, and yes, what it said sounded exactly like my thoughts at the time. Which caused me to check yet again. Nope. Seriously. I didn't write a thing.

Now, I recognize full well that I'm getting old, and hence perhaps more likely than ever to confabulate false thoughts about things I thought I had written down but actually hadn't.

But having artificial intelligence insist that I had written them down, and then setting forth precisely what I thought I had written; well, that's freaking me out a bit.

Because I definitely don't want that thing reading my mind.

I'm confident that, in fact, the a.i. agents are just hallucinating things (again) and doing so in a style that sounds like me.

Still. Weird.

Anyway, here's another unanimous California Supreme Court opinion that's definitely correct.

Even though I can't for the life of me figure out why they thought they needed to say so.

Trona Teacher's Ass'n v. Board of Trustees (Cal. Ct. App. - Oct. 26, 2026)

Are we really doing this?! Seriously?

State law says that teacher salaries have to be uniform once education and experience are taken into account, but a union can nonetheless negotiate an agreement that departs from this in part. The Trona Unified School District negotiated a deal that paid all its teachers $2000/year extra if the teacher had a master's degree. The deal was also retroactive; teachers were paid the extra amounts for the two years prior to the finalization of the deal.

Fair enough. No problem.

But the school district refused to pay six particular teachers with master's degrees who had quit by the time the deal was ratified. They sued, saying that this violated state law, since they were then paid less than equally qualified and experienced teachers who taught during those same years.

What's at stake? "If applied to the Former Teachers retroactively, the CBA would have resulted in additional pay for each of the Former Teachers in amounts ranging from about $5,000 to $9,000."

Six total teachers. Roughly seven grand each. So you're looking at $40,000 or so total.

But no. Rather than pay the teachers for the good work they did, the District (1) defends the lawsuit (and prevails), and then (2) defends the appeal -- and loses.

Which undoubtedly resulted in spending far more on lawyers then the teachers were ever asking for the in the first place.

Now, I'm a lawyer. I love it when lawyers get paid more than teachers. I think that society would be much better off if virtually all of the money paid to teachers was instead paid to lawyers tasked with making sure that teachers got paid as little as humanly possible.

(Sarcasm alert)

Just pay the six teachers the seven grand or so. Why, why, why waste the money on a lawsuit? Even if you're right -- and, here, you're actually wrong -- it's still not a beneficial allocation of resources.

To the six former teachers at Trona who prevailed and learned today that they'll get the extra money -- Michael Lane, Valerie Gennrich, Yesenia Goins, Tyson LoPresti, Cindy Winks, and Joseph Wolfe -- here's what I have to say:

Kudos to you. Thanks for all the great work you've done on behalf of the kids in the district. Enjoy the extra couple of bucks. You deserve it.

Shi v. City of Palos Verdes (Cal. Ct. App. - Oct. 23, 2026)

It seems to me that Justice Daum reaches the right result here. There's a California statute that says that cities have a ministerial duty to approve applications within (generally) 60 days of filing, and a separate statute that says (generally) that if a city fails to comply with a ministerial duty, an aggrieved person can sue the city for damages. The plaintiff here alleges that he filed an ADU application, the City took three years or so to approve it, and that the plaintiff suffered damage. The trial court sustained a demurrer, but the Court of Appeal disagrees, holding that the statutes mean what they say; in particular, that those who own homes and intend to build auxiliary dwelling units on their property are indeed one of the intended beneficiaries of the statute.

I agree. Makes sense.

What struck me about the opinion, however, is how scared Justice Daum appears to be about relying -- even in part -- on legislative history to support that straightforward conclusion. His opinion repeatedly and expressly says that he's not relying on that history, and that he's instead only setting forth these materials as essentially background -- that the statute is in fact unambiguous, so that legislative history is irrelevant, but he's letting you know what it says just in case (essentially) anyone's interested.

I don't think one needs to be so desperately reticent in using legislative history to support one's result. I get it; there's an increasing dominant strain of statutory jurisprudence these days that poo-poos such evidence and instead seeks the "straightforward" application of purportedly "unambiguous" statutory text. But it's not like Justice Scalia's zombie body is going to rise from the grave and strike you down if you write an opinion that relies in part on -- as here -- pretty darn clear legislative history as an additional basis for one's opinion. With all due respect to that particular former Supreme Court justice, sometimes, legislative history is in fact pretty darn informative. Including but not limited to here.

When that's the case, I don't think one should be reticent to rely on legislative history. Sometimes it helps. When it does, use it. And don't be ashamed in doing so, for feel the need to expressly say that this history is technically irrelevant because the statute is unambiguous. Just say that it all points to the same overriding conclusion, and that, particularly when taken together, the statutory text, legislative history, and legislative purpose all make clear the right result.

Then move on. Unabashedly so.

U.S. v. Mumma (9th Cir. - Oct. 20, 2026)

Put a hidden camera in your stepdaughter's room to capture pictures of her undressing? Spend the rest of your life in federal prison, even for a first offense. (The defendant here is 61, and was sentenced to 21 years in prison. He's very unlikely to be alive when released.)

One more thing. You also forfeit your house. Since it's the location, and hence an instrumentality, of the crime.

So even if you're utterly amoral: Not a good decision.

People v. Perkins (Cal. Ct. App. - Oct. 19, 2026)

With respect, I think that Justice Cody beats Justice Yegan in this one.

Everyone agrees that one judge generally can't reconsider the decisions of a different judge. In criminal cases (like this one) or any others.

Justice Yegan, in dissent, thinks that's dispositive here. But Justice Cody says that the prosecution forfeited this argument by not brining it up in the trial court, and I agree.

Justice Yegan says (repeatedly) that as a result of today's holding, "[t]he judge shopping lamp has now been lit." I think not. The unique thing that happened here was that once the issue was raised in front of the second judge -- here, whether or not to strike a prior strike under Romero -- the prosecutor didn't argue that the second judge had no authority to reconsider the first judge's decision not to strike the strike. The prosecutor instead argued that the first judge's decision was persuasive, not that it was binding.

That's a strategic choice. The first judge had expressly said that the issue was "very, very close," so there was a definite chance that the first judge might end up reconsidering. The prosecutor apparently did not want to take that risk, and instead argued the merits with the second judge. That's fine. The prosecutor might well have thought that the second judge was more likely to agree with the prosecutor's argument than the first.

But having made that call, after the second judge decides against you, you can't then argue that the second judge had no jurisdiction to make the call in the first place. Forfeiture doctrines are expressly designed to prevent such strategic election.

Indeed, to me, the "judge shopping lamp" is more applicable to the rule articulated by the dissent, rather than the majority. Under the majority's rule, all that the prosecutor has to say is (accurately) "Your honor, you have no jurisdiction to reconsider the prior judge's ruling." Easily done, and quickly turns off the purported judge shopping lamp. Whereas under Justice Yegan's principle, the prosecution (or the defense, if the tables are turned) can successfully judge shop with the second judge, hoping to prevail if the issue is decided their way and, if unsuccessful, then arguing that the first judge is the only one who can make that call.

Everyone agrees that judge shopping should be avoided. But I think that the majority opinion here is actually the best way to stop it.

People v. Lackey-Garcia (Cal. Ct. App. - Oct. 19, 2026)

I completely understand why Justice Feinberg comes out this way. Her analysis of precedent is coherent and thoughtful. I appreciated it.

But unlike Justice Feinberg, I think that Justice King's dissent in 2010 got it right. My view is that a defendant has a constitutional right to testify in his own criminal competency hearing. Yes, his lawyer didn't think it was a good idea for his client to testify. But the client wanted to. That's a critical right, and one we should respect.

People have a right (obviously) to testify in their own defense at a criminal trial. The same should be true in the competency aspect of a criminal trial. If the client wants to take the stand and provide evidence that he's not competent, great. We'll evaluate that evidence. Ditto if he wants to take the stand and claim that he is competent, even though his lawyer (and perhaps the doctors) insist he's not. That's great too. The judge will hear him out and make a decision one way or the other.

There's a serious dignitary interest at stake. Particularly when, as here, the competency determination is likely to be the dispositive one -- everyone admits here, for example, that the defendant in fact stabbed the various people he stabbed (very likely in a psychotic state). If a guy wants to testify, let him testify. Even if his lawyer thinks it's a bad idea. It's the client's life at stake, after all, not the lawyer's. And letting the client testify will only enhance, rather than retard, the search for truth. If I am the judge trying to decide whether a particular defendant is competent or not, I can't fathom not wanting to hear him testify if he's so inclined. That'll help me immensely, I suspect, in deciding whether or not the guy's in fact competent to understand or assist with his defense.

There's no binding California Supreme Court case going the other way, so that's the way I would rule if I was on the Court of Appeal. And were I the California Supreme Court, I would take this case up and hold the defendants have a right to testify at their competency hearing if they want. Full stop.

U.S. v. California (9th Cir. - Oct. 14, 2026)

California can make its own police officers wear uniforms and provide identification, but it can't make the federal government do the same. Even within California. 

That's different than traffic laws. Traffic laws apply to everyone, so California can (maybe) require that federal officials comply with them. It's true that the California No Vigilantes Act applies to all officers too (including California officers), but since it "targets" federal officers, it's barred by the Supremacy Clause.

So holds the Ninth Circuit, which now reverses the lower court's refusal to grant a preliminary injunction. (A decision it has already stayed, so the handwriting was already clearly on the wall on this one.)

People v. Superior Court (Garcia) (Cal. Ct. App. - Oct. 13, 2026)

I agree with Justice Chavez that the writ here should be granted, but if it were me, I would add one important caveat to the opinion.

I'm on board for the Court of Appeal's holding that the prosecution can file a timely 170.6 challenge to a judge who's acting as a "master calendar department" in a criminal case when that judge indicates that they're going to provide an indicated sentence, rather than just refer the matter out to a department for trial. Once a judge decides that they're going to resolve a disputed issue themselves -- here, whether to strike priors as part of the sentence -- then they're no longer acting in a purely ministerial function (e.g., simply assigning courtrooms), and a 170.6 challenge is timely and appropriate at that point. Agreed.

But the opinion here reads as if the reason the challenge here was timely was because the relevant "disputed issue" was the actual acceptance of the plea, rather than issuance of the indicated sentence. I understand that reasoning: the "indicated" sentence is essentially a conditional prediction, since the defendant hasn't yet pled guilty. Hence the opinion's focus on the actual acceptance of the plea, which takes place only after the indicated sentence (and, even then, only if the defendant accepts the "offer").

But that focus seems rife for abuse.

To me, the 170.6 time period would run from when the judge stated that they intended to provide an indicated sentence, rather than serving merely as a master calendar department. At that point, the judge has indicated their intention to decide a disputed issue of law or fact. So that's when the 10- (or 15-) day clock starts ticking. The later dates -- either when the indicated sentence is pronounced, or when the guilty plea is ultimately accepted (and/or formal sentence imposed) -- aren't the relevant dates. Just like when you get a judge assigned for all purposes, it's the date of the assignment that starts the 170.6 clock, not the date on which the judge ultimately makes any rulings.

The distinction matters. Here, the prosecution made a 170.6 challenge three days after the trial judge indicated they were going to provide an indicated sentence. Great. That's timely. I agree. And, three days later, the court denied the challenge (wrongly), issued the indicated sentence, took the plea, and entered the sentence. That's not okay. A different judge should have been assigned. Spot on.

But imagine a slightly different temporal setting. Let's say the judge indicates that they're going to issue an indicated sentence three weeks later, and the prosecution does nothing. Then, on the appointed date, the judge indicates a particular sentence that the prosecution doesn't like, and only then does the prosecutor file a 170.6 challenge. Before the actual sentence -- the purported "determination of fact or law" under today's Court of Appeal opinion -- but after the indicated sentence.

That would be untimely, in my opinion. Can't do that. You have to file your challenge before, not after, the indicated sentence. The clock starts upon assignment, not the indicated (or ultimate) sentence.

So I would make that clear in the opinion. It's an important caveat.

Martinez v. Contreras (Cal. Ct. App. - Oct. 9, 2026)

We presumably won't see any published opinions today since it's a holiday (for some), so I wanted to briefly mention this opinion from late Friday.

It's unusual. You don't see many Court of Appeal opinions that find it to be an abuse of discretion for the trial court to refuse to grant a new trial based on juror misconduct. You similarly don't see many cases in which the jury, as here, allegedly awards insufficient damages; instead, the problem (if any) is typically awards that are too high, rather than too low.

So the opinion is worth a read, if only as a statistical outlier.

It's also worthwhile because it involves a factual setting that I imagine is not uncommon in motor vehicle accident cases; namely, the jurors (allegedly) wondering why the plaintiff is suing the driver himself rather than the insurance company, and purportedly not wanting to award damages against an individual.

You would have thought that jurors would understand, either through instructions or otherwise, what's really going on in this setting, but apparently -- and perhaps not surprisingly -- not.

Fanuc Corp. v. Superior Court (Cal. Ct. App. - Oct. 9, 2026)

I'm grading midterm examinations in my civil procedure class right now, and the essay portion of that exam entirely revolves around the "relatedness" requirement of specific personal jurisdiction after the Supreme Court's holding in Ford Motor Co. Which is precisely the dispositive issue in this interlocutory writ proceeding in the Court of Appeal.

So, needless to say, I was interested.

I'll not go into the particular merits here; ultimately, the Court of Appeal holds that, on this record, there's no personal jurisdiction over the Japanese manufacturer of a robot that injured someone in California.

I'll just say this:

This opinion shows, in my view, why it's so important to have someone who deeply knows this stuff during the initial law-and-motion proceedings, not just on appeal.

Because I'm fairly confident that if the plaintiffs had known at the time what they had to prove, they could have done so. Potentially easily.

Because I think that personal jurisdiction in fact exists here. Even though the appellate records amassed by the plaintiff on appeal may well not show it.

Luna v. Top Dawg Entertainment (Cal. Ct. App. - Oct. 8, 2026)

The Court of Appeal holds today that when you want to sue anonymously, you've got to follow the correct procedures; to wit, filing your complaint conditionally and then seeking to proceed as a Jane Doe. By contrast, if you simply file anonymously, the defendant is free to call a press conference and reveal your real names. Not only isn't that illegal doxing, but it's protected by the anti-SLAPP statute, so if you sue the lawyers who revealed your names, you'll have to pay their legal fees.

So be sure to do it correctly. It's a big deal.

Steer v. Town of Los Gatos (Cal. Ct. App. - Oct. 6, 2026)

Multimillionaire neighbors in Los Gatos using California environmental statutes to delay their neighbor from building a home on a vacant lot next to theirs.

It doesn't work in the trial court, but succeeds in the Court of Appeal today.

It's not going to stop the project. But it will make it more expensive. CEQA review ain't cheap.

Chin v. DoorDash, Inc. (Cal. Ct. App. - Oct. 5, 2026)

Plaintiff files a retaliation suit against his employer, DoorDash, but deliberately refrains from making a sexual harassment claim, hoping that the trial court will refuse to compel arbitration on the merits, without applying the California harassment exception. Sadly (for him), the court issues a tentative disagreeing with his position and compelling arbitration. So at the hearing, plaintiff asks (for the first time) to amend and add a harassment claim. Has the plaintiff waived, or forfeited, arbitration by not raising the issue in his original complaint and in his opposition to the motion to compel arbitration?

Justice Scherb authors the majority opinion and says "Yes." Justice Wiley dissents, arguing that while he would be fine with sanctioning plaintiff's lawyer for the manipulation, there's no waiver. (Truthfully, this is more "forfeiture" than "waiver" -- the two concepts are often conflated.)

Two competing views of a strategy that, in all honesty, I don't think anyone should replicate regardless.

People v. Flint (Cal. Ct. App. - Oct. 2, 2026)

If you kill a police officer -- even one, as here, who's off-duty -- you can rest assured that the authorities will do everything in their power to make sure that you never see the light of day. That's true even if, as here, you are only the lookout, and someone else kills the person. That's also true even if, as here, the off-duty officer is a lower-level employee primarily doing administrative work.

Sentenced to 29 years to life. Not the actual shooter, but petition for resentencing denied. Affirmed.

Passport 420, Inc. v. Starr Indem. & Liab Co. (Cal. Ct. App. - Oct. 1, 2026)

Bad cases make bad law.

The Court of Appeal holds today that even if the insurance company doesn't ask, you're required sua sponte to tell them anything that might potentially influence their decision regarding whether or not to issue a policy. On that basis, it reverses the jury award in favor of the policyholder below.

Look, I know that everyone hates Michael Avenatti. For good reason. But the insurance company here didn't ask any questions at all about where the money came from to buy the airplane it insured. (Turns out, he embezzled those funds.) Moreover, the policyholder here isn't even Avenatti; it's a different, innocent person that ends up owning the plane, and hence losing $3 million-plus when the insurance company rescinds the policy based on the failure to volunteer information that the insurance company didn't even bother to request.

This just seems like a terrible decision for pretty much every insurance coverage case other than this one. There are legions of facts that might potentially influence an insurance company's decision. I understand that the insurance code requires me to be honest, with full disclosure. But that only applies to things that the insurance company asks. If my health insurance company doesn't feel like asking about my medical history, I don't have to tell them. If my life insurance company doesn't ask about whether I'm occasionally depressed, I don't have to tell them. If my auto insurance company doesn't ask about whether I sometimes exceed the speed limit on the highway, I don't have to tell them.

Until today.

Baker Ranches, Inc. v. Bergum (9th Cir. - Sept. 30, 2026)

I don't know. I see both sides. Judge Owens makes good points for the majority, but the competing view (adopted by Judge Rawlinson in dissent) has a lot going for it as well. I am definitely not as emphatic as Judge Rawlinson on this issue. But maybe his side has the better of the argument?

Back in 1934, a Nevada state court action determined who could take what water from the Baker-Lehman Creeks. An important issue, to be sure. But the federal government, which owned plenty of the underlying land, didn't participate in the lawsuit. For good reason. It was entitled to sovereign immunity, so no way it was going to bind itself to a state court action. So the state court gave respective water rights to everyone, but not to the federal government.

Fast forward. In 1952, Congress didn't like how this whole thing was ending up. In Nevada as elsewhere. It wanted the federal government to start showing up to these things. So Congress passed the McCarran Amendment, which waived sovereign immunity in these types of cases. And the Act was retroactive as well, and bound the federal government to prior "comprehensive" adjudications of water rights.

Makes sense. Judge Owens cogently explains how all this went down, and why. I learned a lot; thanks for that, honestly.

So is the federal government now bound to the prior 1934 Nevada state court adjudication of the Baker-Lehman Creeks water rights? Judge Owens says "yes" because that proceeding was "comprehensive" (as the McCarran Amendment requires) in that it adjudicated everyone's rights to the water, whereas Judge Rawlinson says "no" because the federal government (understandably) didn't participate and hence (understandably) wasn't awarded at the time any water rights.

I'm slightly leaning to Judge Rawlinson's perspective, I think. It just seems profoundly unfair to me, and contrary to congressional intent, to say that the federal government is bound to a finding in which it (1) did not (for good reason) participate at the time, and (2) accordingly wasn't awarded any water rights, even though it owned tons of the underlying land at issue and certainly would have been awarded water rights had it elected to participate. (Which, again, it made sense not to at the time.) Why would that make sense? Why is that fair or equitable? Why should the other landowners get all the water and the federal parks through which the water flows -- here, the Great Basin National Park -- left to rot in the dust?

I understand Judge Owens' argument that allowing the United States to pop in and exercise water rights at this point would "unsettle" a ton of these prior allocations. Yeah, I admit, that's a pain. But the alternative seems even worse. It would be one thing if the prior allocations reserved some water for the feds (based on their existing land ownership and use) notwithstanding their failure to actively participate. That would indeed, in my view, be a "comprehensive" adjudication, and one to which I might well bind the federal government.

But when, say, the federal government owns 99% of the land, and is using (at the time) 99% of the water, and 1% of the landowners bring a lawsuit and are awarded 100% of the water because the 99% owner (rightly) fails to participate, it makes no sense to me to say: "Oh, well, tough, that was a totally 'comprehensive' prior adjudication because it allocated all the water to all the (relevant) landowners."

No it didn't. It didn't discuss -- or even attempt to address -- the federal government's rights at all. It was not "comprehensive" in that regard. And, as a practical matter, is unfair and socially deleterious to bind everyone to a prior adjudication that we know full well doesn't accurately reflect the relevant ownership and use of the underlying land. Either now or then.

That's my concern with the majority opinion, anyway. I get the arguments. I'm just not entirely sure I'm completely persuaded.

Notwithstanding a really cogent and intelligent opinion by Judge Owens.

State of Washington v. Crown Resources (9th Cir. - Sept. 29, 2026)

Rarely is the Ninth Circuit's reversal of a district court's decision so obviously correct as this one by Judge Fletcher.

Of course there's no privity here. Of course the (self-serving) settlement by the citizen group doesn't bar the contemporaneous related claim by the State of Washington, which didn't even know about, much less approve of, the settlement talks between the other parties.

Totally and completely right.

Medrano v. Acosta (9th Cir. - Sept. 25, 2026)

District Judge Frimpong held that officers were potentially liable if they indeed did what Alex Medrano said they did, so denied their motion for qualified immunity. On appeal, Judges Callahan and Bumatay "conclude[] that it was objectively reasonable for the Officers to aim their guns at Medrano’s head from near point-blank range, as a matter of constitutional law, such that no rational jury could conclude otherwise." (Mr. Medrano had a prior bench warrant for fleeing a traffic stop, and the officers did not know that warrant had been withdrawn.) Judge Paez partially dissents, contending that the majority's "decision is both unnecessary and flawed" since he believes the officer's conduct, viewed in the light most favorable to Mr. Medrano, would qualify as excessive, but that this right was not clearly established, so qualified immunity exists.

Who do you agree with? Judge Frimpong? Judge Callahan? Judge Paez?

Three different perspectives, to be sure, on when the police are permitted to point loaded guns at your head.

Bandary v. Delta Air Lines, Inc. (9th Cir. - Sept. 23, 2026)

I'm stunned by this one. Seriously. Stunned.

A passenger on a Delta Airlines flight allegedly acts suspiciously, so the flight attendants confront him, the situation escalates, and the passenger is ultimately forcibly restrained by both the flight attendants and by an air marshal. He sues Delta, claiming serious personal injuries, and the jury awards him $7.2 million in damages.

The district judge vacates the jury's award and thereafter grants summary judgment to the defendant, and plaintiff appeals. The Ninth Circuit affirms.

I wasn't stunned at the outcome; both the majority opinion and the dissent make good points in favor of their respective positions.

But after reading the opinion, I was interested in discovering what lawyer represented the plaintiff on appeal. There's $7.2 million at stake, after all. Presumably there's a contingency fee at stake, so I was wondering who ultimately lost out on a $2.5 million (or whatever) fee award.

So I looked at the caption, and discovered that the Ninth Circuit appeal was filed and argued by . . . . the Georgetown Law School Appellate Clinic.

What?!

You can't find an appellate attorney who's willing to defend a $7.2 million jury damage award on appeal? Really?!

I was sufficiently surprised to look back at the history of the case. I noticed from the caption that the district court case number began with 17-, so I knew there would be at least some drama.

Drama indeed.

So many different lawyers in the trial court. Plaintiff ultimately representing himself pro se for much of the case. So many motions. Some of which (e.g., the pro se motion to disqualify the district court judge) were not exactly well thought out.

My guess is that, ultimately, no lawyer was willing to deal with the Plaintiff and/or Plaintiff was not willing to deal with anyone other than the pro bono counsel at Georgetown who agreed to take the case.

Still. Unusual. A case with a $2.5 million fee at stake but no lawyer.

U.S. v. Rivera (9th Cir. - Sept. 23, 2026)

Tip of the day: If you're a convicted felon who's selling methamphetamine, with thousands in cash plus loaded weapons in your home, maybe don't put your meth-contaminated trash bags in your front yard for pickup.

That mistake cost the defendant here 25 years in federal prison.

I also learned some new lingo today. One of his customers apparently sent a text message asking him for "prices on clear and Negra." I knew that "clear" meant methamphetamine; thank you for that, Breaking Bad (even though Walt's meth was famously blue). But I had to look up what "Negra" meant. (Judge Nelson's opinion mentioned that it had something to do with drugs, but not precisely what.)

I get it now. Makes sense. "Negra" is black (which I already knew; thank you, Negra Modelo). So with drugs, it means heroin; specifically, black tar (or brown) heroin.

Now you know too. (If you didn't already.)

Wilson v. Johnson (Cal. Ct. App. - Sept. 22, 2026)

Maybe I'm overly cynical. But I am not particularly surprised that there are quite a few opinions from the Court of Appeal -- like this one today -- that reverse the trial court's dismissal of a lawsuit for an alleged failure to bring it to trial within the mandatory five-year period.

For example, here, everyone recognizes that the five year deadline is days away from expiring, so the court sets a trial date, calls in prospective jurors to the courtroom, swears them in, and starts examining them for potential excuses. All that happens before the deadline. The lawyers haven't started asking any questions yet, but still, the prospective jurors are sworn. Then, once a couple of days passes and the deadline expires, the defendant says: "Whoa. Too late. The 'trial' hasn't started within five years. So I win regardless; the lawsuit against me is subject to mandatory dismissal."

At that point, the trial court -- facing what's expected to be a 42-day personal injury trial -- grants the motion and dismisses the lawsuit. Thereby avoiding a long, pain-in-the-butt trial.

The Court of Appeal reverses. Holding that the "trial" properly started for purposes of the five-year statute once the prospective jurors were sworn.

Does it surprise you that trial courts are often far more willing than the Court of Appeal to get rid of pending trials on the basis of the five-year rule? Gets 'em out of work, anyway; at least temporarily. Maybe even permanently, either if the Court of Appeal affirms or, even if it doesn't, if one of the parties papers the underlying judge (as presumably many will) on remand -- or if the judge has retired or moved to a different department by then.

Agency costs. They're real. They're pervasive. Even, at times, amongst judges, I suspect.

People v. Centeno (Cal. Ct. App. - Sept. 21, 2026)

This opinion just gets worse and worse the more you read. Every page details more horrific facts than the last. (And it's 35 pages, so that's saying something.)

Maybe I should have expected that from the introductory paragraph. Which reads as follows:

"Defendant Jose Anthony Centeno appeals his convictions for kidnapping to exact money or valuable things, forcible rape, forcible sodomy, and assault upon a victim under the age of 18 with intent to commit a lewd or lascivious act; he does not challenge his other convictions. He contends the jury was improperly instructed in connection with the kidnapping and assault charges and, to the extent those arguments were waived, he received ineffective assistance of counsel. Centeno further asserts insufficient evidence supported the rape, sodomy, and assault charges. We affirm the judgment."

Still. I'm used to reading terrible facts in cases like this one. This one nonetheless struck me as unusual by starting off with bad (but not horrible) facts and then the abuse becoming more and more disturbing and horrific as time went on.

Read the entire thing at your peril.