People v. Benson (Cal. Ct. App. - April 28, 2025)

The witness to an alleged gang murder was "working as a sex worker nearby on the night of the shooting." She testifies at the first trial, which ends in a hung jury, and at the second trial, she's so worried about gang retaliation (in my mind, anyway) that she recants everything she said at the first trial as well as denies all of her former statements to the police. Defendant is convicted, sentenced to 120 years to life, and appeals.

It's not required (AFAIK) by the Rules of Court or by the California Style Manual, but were I the one writing this published opinion, I wouldn't mention -- as Justice Stratton's opinion does -- the full name of this particular (very frightened) witness. She's apparently on Facebook, after all (with her kid, no less). No reason, in my view, to further identify this former-sex-worker-turned-reluctant-gangland-murder-witness by name.

De la Cruz v. Mission Hills Shopping Center (Cal. Ct. App. - April 28, 2025)

Is it possible that I've seen a shorter published opinion than this one that reverses the grant of summary judgment on the basis of an argument that was forfeited below? Maybe.

But I doubt it.

Four paragraphs. 367 words.

Honestly, I'm not sure that you need say much more than the opinion does. Maybe a little bit more on why justice requires reversing on the basis of a forfeited error. (Since, by definition, enforcing forfeiture always means that the loser might be someone who would otherwise win on the merits)

But okay. Speedy -- or at least concise -- justice.

CFPB v. CashCall (9th Cir. - April 24, 2025)

They almost made it.

The Consumer Finance Protection Bureau sued CashCall on behalf of consumers for deceptively attempting to collect interest and fees to which it was not legally entitled. It won, with an initial $10.7 million award, but the CFPB appealed, claiming that the award should have been higher, and the Ninth Circuit reversed and remanded, at which point the district court upped the award to $137 million in restitution. Then the Ninth Circuit affirmed, and today, issues an amended opinion and denies CashCall's motions for rehearing and rehearing en banc.

CashCall is politically well-connected, and Paul Clement represented them on appeal. As you may know, President Trump is currently gutting the CFPB, and is in the process of firing 90% of its workforce.

I suspect that if CashCall could have held out just a little longer, they might have gotten out of the $137 million award.

Still might, of course.

But, for now, it stands.

Newman v. Underhill (9th Cir. - April 23, 2025)

I'm clearly the outlier here, since this opinion is written by Judge Graber and is unanimous. But really?

The police in San Bernardino try to pull over a Chevy Tahoe for the very, very serious offense of "expired registration and an unilluminated license plate." The driver doesn't stop, and when the officer gives chase, eventually runs on foot into a dead end street, at which point the officer (who's stopped to first "clear" the Tahoe) loses track of him. But the last time the officer saw the guy, the suspect was heading towards one of the houses in the neighborhood, so the officer goes into the back yard of that house in search of the guy. No dice. But maybe, just maybe, the suspect went in the house; apparently, the back door of that house is unlocked.

Other officers arrive, a police helicopter comes, they search all around the area for heat signatures or the suspect but can't find any, so they surround the house and tell the occupants to come out. No dice there either. It sounds like there might indeed be someone in the house -- there are noises there -- but there's no response, and no one's coming out.

To reiterate: They're confident the suspect isn't anywhere near. The police have surrounded the house. It has been around ten minutes since the officers have last seen the guy. Maybe he's in the house (or maybe someone else is), but the officers have been screaming for a couple of minutes, and there's no response.

(As it will turn out, the owner of the house is "a quadriplegic in a wheelchair," and he's indeed inside.)

Here's my take:

It's someone's home. Their castle. The place is surrounded. No one's getting out, or away. And the guy you're chasing is merely wanted for evading the police and expired tags.

You can't just call in for a warrant?

Apparently not.

After waiting 10 minutes, the police barge in the back door, find the owner sitting in his bedroom, search the place with his consent, and find the suspect. The owner then sues, claiming they needed a warrant.

The Ninth Circuit says: Nope. Hot pursuit. No need for a warrant.

I just can't get around the fact that there's utterly no reason to get (or require) a warrant here. Zero. It's someone's home. There are no exigent circumstances.

Get a warrant.

Marino v. Rayant (Cal. Ct. App. - April 18, 2025)

This opinion is a perfect example of the Streisand effect. A result generated in part, ironically enough, by someone who has written about the Streisand effect.

Lawrence Marino initially obtained an 18-month civil harassment restraining order against Mark Rayant at a proceeding at which Mr. Rayant was not present. Later, Mr. Rayant appeared in court and argued that he had never received notice of the proceedings, and on that basis, the court vacated the restraining order.

Mr. Rayant subsequently asked the trial court to seal the records of the proceeding, arguing that the public existence of the (now vacated) order harmed his ability to get certain jobs. The trial court refused to do so, and Mr. Rayant appealed.

Before the appeal, the only people who could view the proceedings below were those who went through the specific and somewhat arduous process of looking through trial court proceedings. But the appeal now results in a written opinion -- one that's a robust twenty five pages, and includes a slew of detailed facts about the underlying events -- that's easily accessible to pretty much everyone. Indeed, when you now run a Google search for "Mark Rayant," the opinion is one of the very first results that comes up.

Hence the Streisand effect. An attempt to reduce publicity and access that only increases it.

And here's the twist. The opinion was originally unpublished. That's bad for Mr. Rayant, since even unpublished opinions are still readily accessible. But the Court of Appeal now decides to publish the opinion, which only makes it even more readily accessible.

Who asked the Court of Appeal to publish the opinion? Not Mr. Rayant, who both lost the appeal and who has little reason to want its factual recitation of events to be even more public.

Rather, publication was instead requested by Eugene Volokh. Someone who's previously written about the Streisand effect.

Irony indeed.

Medtronic USA v. California Department of Tax & Fee Administration (Cal. Ct. App. - April 16, 2025)

There are many opinions -- particularly in high-profile areas like constitutional law -- that could quite legitimately be nominated as Opinions of the Year. High quality, utterly persuasive, well-written and compelling opinions.

Today's quite arcane opinion by Justice Richman could be legitimately added to that list.

It's incredibly short. Barely a dozen pages. But every single paragraph is perfect.

It's not a high-profile opinion at all. Here's what it's about:

"Medtronic USA, Inc., (Medtronic) manufactures “RICMS,” two types of insertable cardiac monitors, which it describes as “slim, headless heart monitoring devices that are implanted subcutaneously in a patient’s chest that captures ECG [electrocardiogram] needed by a physician to diagnose and make informed decisions about syncope patients and those whose experience transient symptoms that may suggest a cardiac arrhythmia. The RICMs automatically record the patient’s ECG upon detecting cardiac arrhythmias.” The California Department of Tax and Fee Administration (Tax Department) collected sales tax upon the sale of those devices. Medtronic maintained that the devices are exempt from tax by reason of Revenue and Taxation Code section 63691 and an administrative measure known as Regulation 1591 (Cal. Code Regs, tit. 18, § 1591), on the basis the devices came within the definition of “medicines” in section 6369. And after it exhausted administrative attempts to have the sales tax reduced or returned, Medtronic commenced this action for refund of the amounts collected, plus interest, totaling $3,329,195.79. That action was unsuccessful, the trial court granting summary judgment to the Tax Department.

Medtronic appeals, attempting to persuade us that both the Tax Department and the trial court erred in reading the cited authorities as not exempting RICM from tax. That appeal is also unsuccessful, and we affirm."

In truth, even without going through the convoluted statutory structure, it doesn't take much to convince me that the cardiac monitors here are not "medicines". A monitor isn't a medicine. Duh.

And I say that even though yesterday was April 15 -- tax filing day -- which perhaps makes me particularly adverse to any conclusion that something should be taxed.

But sorry. These are devices, not medicines. They're taxed.

Regardless, Justice Richman walks the reader through the various statutory details and definitions. And his analysis is as exquisite as it is spot on. (I won't repeat it here, but, again, the opinion is quite short, so I encourage you to read it at your leisure. It's extremely well done, and eminently persuasive without being overly verbose. I'm sincerely jealous.)

Even beyond the statutory analysis, I especially liked this paragraph, which also seemed spot on to me:

"Medtronic’s arguments are heavily reliant on extrapolating logic. “If X is exempt then it follows the Y should likewise be exempt.” “If pacemakers are exempt, then so should our RICMs.” But Holmes taught us the law has never been a slave to logic. (Holmes, The Common Law (1881) § 1.) And, as just established, this is especially true with respect to schemes of taxation, which has led a number of United States Supreme Court justices to note ruefully that “ ‘Logic and taxation are not always the best of friends.’ ”"

Yes. Yes, yes, yes, yes and yes.

That was, indeed, Medtronic's best argument. It does, in fact, seem silly to exempt pacemakers from taxation but not RICMs.

But that's nonetheless what the statute says. The Legislature doesn't need to make sense. Indeed, often does not. Perhaps particularly in the area of taxation.

It is what it is. And, here in California, that means that RICMs are taxed.

Again: Extremely well done by Justice Richman.

Cain v. Superior Court (Cal. Ct. App. - April 11, 2025)

I'm quite surprised at this holding by the Court of Appeal.

At one level, I totally understand it. I'm absolutely confident -- as is the trial court and the Court of Appeal -- that the Solano County Public Defender's Office will not "pull punches" in its defense of Fred Cain on the charge that he murdered a six year old girl. The only really plausible defense for Mr. Cain is to pin the murder on someone else: Shawn Melton. And I'm positive that that's exactly what the P.D.'s office will do, and that it will do so diligently.

But here's the problem:

The very same public defender's office twice represented Mr. Melton on these exact same first degree murder charges. Successfully.

So the P.D.'s office is going to say that its current client did not kill the little girl, but that its former client was the actual killer.

I'm sorry. I just don't think that's okay. Maybe I'm approaching this too much from the civil side, but for me, I think that your duty of loyalty to your former client simply prevents you from saying that he's the one who killed the little girl. I would not expect my former attorney to rat me out like that. Even if they weren't using my confidential information to do so. I would expect them to be loyal to me. And that duty of loyalty would include, at a minimum, not accusing me of first degree murder. (Rightly or wrongly.)

Every member of the panel here agrees. And the justices explain why, at length; for 33 pages.

Disqualification of lawyers is viewed for abuse of discretion. To me, there's no abuse of discretion here. Indeed, I think the trial court got it affirmatively right. There are lots of lawyers in this world. There's no substantial reason why this office has to be appointed to be the one to defend Mr. Cain. And there are real reasons, both loyalty reasons as well as public perception reasons, why a different office should be the one to point the finger at Mr. Melton.

I understand that this case is largely a one-off, with unique factual circumstances: there are apparently no files remaining on this decades-old cold case, the relevant public defender is no longer there (having been appointed to the bench and now retired), there's virtually zero risk of confidential information being used, etc.

Still. I would have affirmed. And were I on the California Supreme Court, I would vote to grant review and reverse.

The downsides of this representation, to me, outweigh the upsides.

By a fair piece.

AirDoctor LLC v. Xiamen Qichuang Trade Co. (9th Cir. - April 11, 2025)

The practical lesson from today's (sole) Ninth Circuit published opinion is that your federal complaint for damages shouldn't request an actual numeric amount, but should instead request damages "in an amount to be proven at trial." That way, in a default judgment, you're not limited to any specific amount pursuant to Rule 54(c), but rather can obtain whatever damages you can prove up. Whereas you'd be limited to the specific amount you requested if you actually set it forth in your complaint.

I'm fine with that rule. Makes sense to me. (Though the district court thought otherwise.)

The only weird thing about the opinion is its composition. The opinion is unsigned and per curiam. But two of the three judges -- Judge Berzon (joined by Judge Kennelly, sitting by designation from the Northern District of Illinois -- write a concurrence that just basically explains at length why the result of the per curiam opinion is correct.

Huh?

The only way I can rationally explain that outcome is to speculate that the third member of the panel, Judge Friedland, wrote the bench memorandum, was assigned the opinion, but then wrote language or reasoning that the other two didn't like -- and the collective crew couldn't compromise. Hence the two similar, but not identical, writings.

In any event, the practical result is the same. Just ask for damages in an amount to be proven at trial.

In re L.H. (Cal. Ct. App. - April 9, 2025)

The first line of this opinion says:

"The juvenile court committed L.H. to a secure youth treatment facility after he pled no contest to committing first degree murder."

I'm sure that the relevant terminology is old hat to people in the juvenile justice field, but for generalists like myself, the term "secure youth treatment facility" has an aspect of 1984-like doublespeak. We don't call it a prison. It's solely for "secure youth treatment." With emphasis on the "treatment" part, of course.

Even though I suspect that the "treatment" part plays much less of a role, in reality, in these places than the "secure" (e.g., prison) part.

Odom v. Los Angeles Community College Dist. (Cal. Ct. App. - April 7, 2025)

To say that the Court of Appeal was nonplussed about the conduct of the trial judge in this case would be a substantial understatement.

The Court of Appeal reverses a $10 million verdict in favor of the plaintiff in this sexual harassment case and remands for a new trial. Justice Grimes' opinion repeatedly calls out the trial judge, Judge Draper, by name in the opinion.

You can get an accurate sense of the tone and content of the opinion from its very first page, which says:

"This is an unusual case, due to the significant arbitrary and prejudicial evidentiary rulings of the judge presiding over the trial. After the judgment was entered, defendants filed motions for a new trial (or in the alternative a remittitur) and for partial judgment notwithstanding the verdict (JNOV) (or in the alternative for remittitur). At the hearing on those motions, which were denied, the trial judge initiated extended, bizarre personal comments on racial matters with newly substituted defense counsel (the only Black woman in the courtroom), despite there being no racial issue of any kind in the case. Defendants filed a motion to disqualify the judge for cause and to void his rulings on the motions. After writ proceedings and referral to a neutral judge, the trial judge was disqualified and his rulings on the postjudgment motions were voided.

On this appeal from the judgment, we need not decide whether the trial judge’s prejudicially erroneous evidentiary rulings during the trial were motivated, in part, as defendants contend, by “persistent racial and gender bias.” It seems clear the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever his motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial. We accordingly reverse the judgment and order a new trial."

The remaining 38 pages contain more of the same, only with additional (excruciating) detail.

The opinion then ends with this:

"On a final note, while we do not know whether, as defendants contend, Judge Draper’s “persistent racial and gender bias” motivated his rulings at trial, we cannot rule out that possibility in light of the extreme and bizarre comments he made at the posttrial motions hearing and his ensuing disqualification for cause. We need not decide whether bias was the reason for his arbitrary and capricious evidentiary rulings; the rulings were an abuse of discretion irrespective of his motivations. One thing we can say for sure is, the rulings were not motivated by a devotion to the law of evidence."

It's possible that I've previously seen a Court of Appeal opinion that was harsher in its treatment of the trial judge. But if so, I definitely don't remember it.

Wow.

People v. McGhee & Jasso (Cal. Supreme Ct. - April 3, 2025)

It's a rare day when you simultaneously have joy and disappointment on death row in San Quentin. But today is one of those days.

Christopher Jasso gets his conviction and death sentence unanimously affirmed. Killing a taxi driver in cold blood for a robbery, and then consistently attacking other inmates before the penalty phase, is not the soundest strategy for obtaining your freedom.

By contrast, Timothy McGhee's conviction and death sentence are unanimously reversed. He allegedly killed -- or at least ordered the killing -- of a plethora of people. But the trial court dismissed a juror who, essentially, just didn't believe the prosecution's case. The juror didn't refuse to deliberate or anything. He just consistently and pervasively disbelieved the prosecution's witnesses. That's not enough to get you booted off a jury, hence the result.

So a split result, on balance, for that particular group of inmates up north.

Krug v. Board of Trustees of Cal. State Univs. (Cal. Ct. App. - April 1, 2025)

There are lots of reasons why it's better to be employed by a private university rather than a public one. Add this to the list. The Court of Appeal holds that Section 2802 of the Labor Code, which requires employers to reimburse employees for their reasonable on-the-job expenses, doesn't apply to state employees, including faculty at public universities.

There are other ways, of course, in which teaching at a public university is superior; in particular, in the protections afforded by the First Amendment and the Due Process Clause, which apply in public schools but substantially less so in private schools.

Still. Definitely not perfect to be on the faculty at a public university. Lots of downsides. 

(Admittedly: Still a great job, though.)

Winter v. Menlo (Cal. Ct. App. - April 2, 2025)

Yeah, sorry. It's a conflict. You're disqualified for that.

Justice Viramontes' opinion is 30 pages longer than that, and has more exhaustive detail, but honestly, it's to the same effect.