People v. Choyce (Cal. Supreme Ct. - July 21, 2025)

Given the multiple brutal rapes and murders (that we know of), it's understandably difficult to want Mr. Choyce to continue to live.

Not surprisingly, the California Supreme Court unanimously affirms his death sentence.

It doesn't even take 52 full pages. That's fairly short for a death penalty opinion.

Wig Inflatables, Inc. v. Lloyds of London (Cal. Ct. App. - July 21, 2025)

Okay, Baker & McKenzie. You successfully defeated appellee's motion to dismiss your appeal, with the Court of Appeal holding that since the email from the Clerk didn't contain a signed proof of service, the 180-day period for your appeal, rather than the usual 60-day period, applied.

Though were those extra days really worth the risk?

People v. Lara (Cal. Ct. App. - July 17, 2025)

Two points. Very quickly. Only the first is about the opinion itself. And neither, quite frankly, is critical (or perhaps even important).

The core question is whether the evidence suggested that Mr. Lara was sufficiently disabled such that the regional center for the developmentally disabled was required to evaluate him. The Court of Appeal holds that he was.

In the middle of the opinion, Justice Snauffer says: 

"Dr. Longwith also administered the Competence Assessment for Standing Trial (CAST-MR), which is designed to assess competency to stand trial in individuals with intellectual disability. This assessment consisted of 50 questions in three sections. The first section tests the defendant’s understanding of basic legal terms, the second tests their ability to assist in their own defense, and the third section involves open-ended questions about the defendant’s specific case. “The Mean cut-off Raw Scores for persons who are intellectually disabled and competent to stand trial are:” 18.3 for the first section, 10.7 for the second, and 8.0 for the third. “The mean total score for MR-Competency is 37.0.” Lara’s raw scores on the three sections, respectively, were 17, 10, and 7, for a total raw score of 34. . . . Dr. Longwith’s report . . . showed scores below the competence cutoff on all three parts of the CAST-MR." (emphasis added)

I'm genuinely confused.  Are those really the mean cutoff scores for persons who are "intellectual disabled and competent to stand trial?" So if you get a 18.3, that means you're probably competent? Because that's not what the rest of the opinion seems to suggest. Are we sure that's not the mean scores for people who are incompetent?

Plus, isn't it inapt, in either event, to talk about "mean" scores? That's not really the test, is it? Say, for example, you've got five defendants, all of whom are competent. One's a genius (150 IQ), one's smart (120), two are normal (100), and one's a bit slow (80). The mean IQ of the "competent" group is 110. But that doesn't equate to a "cutoff" for competence at 110; i.e., that people below 110 are incompetent. It's a mean, not a cutoff.

It works the other way too. Say you've got five people who are disabled and incompetent. One's very slow (70 IQ), one's severely disabled (40 IQ), and three are so disabled that they're virtually comatose (5 IQ). The "mean" of those who are disabled is 25. But that doesn't mean -- at all -- that the "cutoff" for being incompetent is 25.

I would think that the only appropriate use of means -- if one exists -- would be as a one-way rachet. So, for example, in our hypothetical, if you were OVER 110 (the "competence" mean), you were probably competent. Similarly, if you were UNDER 25 -- the incompetence mean -- you were likely incompetent. That leaves the largest group, those with IQs between 25 to 110, as indeterminate; the means don't help there.

So the only way I see the "mean" in today's opinion making sense is if the mean cutoff score of 18.3 was for the people who are not competent to stand trial (rather than "competent"). Then, if you're lower  than 18.3 (like Lara), we presume you're incompetent. Even though a score above that same mean does not mean that you're presumptively competent.

Anyway, I just wonder if there should actually be at least two more characters ("in") as part of that particular sentence.

Second, and very parenthetically, I noticed that the appointed defense counsel for Mr. Lara, in this first-degree-murder-sentenced-to-25-years-to-life dispute, was a lawyer who's admitted to the California bar but who currently writes appellate briefs from her home in Bath, New York. I'd never heard of that place, so looked it up. Rural. Very green. Village has a population of a little over 5,000. And where you can get a very nice looking 3800+ square foot home for under $400,000.

Nicely done. California salary with east coast living (and costs).

People v. Reyes (Cal. Ct. App. - July 16, 2025)

Not much to speak of lately on the California appellate front. No published Ninth Circuit opinions today, and only one published Court of Appeal opinion in the last two days thus far.

So I'll quote three paragraphs from the sole Court of Appeal opinion during this period and make a very brief comment about it. These paragraphs are the core holding of the opinion, in a case where the defendant receives 85 years to life as his sentence:

"Corporal Jason Radcliffe served as the primary investigating officer in appellant’s case. He testified at trial as the People’s expert on the Colonia Chiques gang. He also testified as a percipient witness about his investigation of the shooting and appellant’s arrest in Bakersfield. He described questioning appellant for several hours after the arrest. The People asked whether he “form[ed] an opinion as to who the shooter was on the surveillance video.” Corporal Radcliffe responded, “[o]ff the totality of the surveillance cameras and then holding out until I actually had physical contact and the conversation with Mr. Reyes, I believe 100 percent that was Mr. Reyes who conducted the shooting.” He explained how the car appellant was driving at the time of his arrest appeared identical to the one in the video, including a small dent on the left rear quarter panel. The last three digits of the license plate matched as well. Appellant was wearing a blue tank top like the one worn by the shooter. Radcliffe concluded: “[T]hen actually getting to sit down, talk and see Mr. Reyes and deal with his – his appearance and mannerisms, I was absolutely confident that Mr. Reyes was the shooter.”

Appellant argues Corporal Radcliffe usurped the function of the jury when he opined that appellant shot M.C. He compares Radcliffe’s testimony to that of a similar “dual purpose” witness in People v. Rouston (2024) 99 Cal.App.5th 997 (Rouston). The witness in Rouston, like here, served as both primary investigator and gang expert. He testified defendant fired the shot that struck the victim. He based his opinion mostly on an eyewitness’s account of the crime, as well as audio recordings of the shooting and forensic evidence about bullet trajectories. Rouston reversed, concluding the witness “provided improper opinions on [the defendant’s] guilt.” (Id. at p. 1011.) It stated: “The jury heard the other witness testimony and was equally competent ‘to weigh the evidence and determine what the facts were.’” (Ibid., quoting People v. Vang (2011) 52 Cal.4th 1038, 1048.) “Given [his] status as a gang expert, the designated investigator who testified repeatedly throughout the trial, and a detective, ‘the jury had every reason to look to [him] as a far better judge than they could be’ regarding the reliability of other witnesses’ testimony, and what inferences to draw from the prosecution’s other evidence.” (Id. at p. 1012, quoting People v. Brown (2016) 245 Cal.App.4th 140, 169.)

Rouston is distinguishable. Corporal Radcliffe did not base his opinion on the testimony of other witnesses, or claim special expertise in identifying people using video. He identified appellant as the shooting suspect only after participating in his arrest, questioning him, and comparing his “appearances and mannerisms” to those he observed in the video’s footage prior to the arrest. The trial court properly allowed this testimony." 

Really?

CFP BDA, LLC v. Superior Court (Cal. Ct. App. - July 10, 2025)

For California state court civil litigators, this might be the most important Court of Appeal decision to come out this year. Despite the fact that it will probably fly substantially under the radar.

Moreover, were I to have my druthers, I would probably ask the California Supreme Court to depublish it. If, as is unfortunately the case, the California Supreme Court hadn't already decided to publish it (at the request of the Court of Appeal itself).

The opinion is all about the motion reservation system that exists in state court. As you likely know, in many of the big counties, if you want to file a motion, you have to reserve a motion date -- typically, in an online reservation system. It lists the available dates, and you pick one and reserve it. That way, the state court judge isn't overwhelmed by too many motions on one date (or not enough on another).

That system has its problems, of course. You often can't get the date you want, and sometimes, the earliest available date is months away. That stinks, but it is what it is.

Predictably, this leads to the possibility of "hoarding" reservation dates: to reserve dates that you don't intend on using just so they're available. To solve this problem, most counties require that after you reserve a particular date, you file the underlying motion some specified period of time thereafter. In some counties, it's three days; in others, it's ten. Regardless, if you don't file the motion within the relevant time period, you lose your hearing date.

That's the way it works.

In this case, on November 14, 2024, the defendant reserved a hearing date of April 1, 2025 to file a motion for summary judgment. (Ironically, April Fool's Day.) That was no problem. The hearing date was months after the MSJ motion would be filed, so complied with the (now) 81-day notice requirement of CCP 437c. The hearing date was also 30 days before trial (though barely so, since the trial was scheduled for May 2), so complied with 437c in that regard as well.

So far, so good.

In Riverside County, you've got ten days after reserving your hearing date to file the underlying motion. So if defendant had filed its motion anytime before November 24, 2024, everything would have been fine.

But it didn't. Instead, it waited to file its MSJ motion until January 10, 2025, which was 81 days before the hearing date.

That violated the ten day rule. So, three days later, the defendant received notice that its MSJ papers were bounced because it lost its hearing date by filing the motion a month and a half late. Defendant moved ex parte to get a new date on shortened notice, since at that point, no available date complied with the code, but the trial court denied the request. So defendant never got to file its MSJ. (Actually, defendant subsequently reserved a hearing date of April 29, which was three days before the trial, and the trial court heard the motion, but denied it, presumably on procedural grounds given the 30-day rule of CCP 437c.)

Defendant appeals, and argued that it was improperly denied its right to file an MSJ under CCP 437c.

The Court of Appeal agreed, and reversed. Justice Miller's very brief (seven page) opinion holds that since the defendant's MSJ motion complied with the statutory deadlines in CCP 437c, they were entitled to have the motion heard, notwithstanding the ten-day reservation requirement in Local Rule 3310.

To be honest, I'm sympathetic with the result. Which is why I wouldn't grant review of this particular opinion and reverse on the merits. It's a big deal to not have your MSJ heard. And the filing here was in plenty of time -- 80+ days before the hearing -- for the plaintiff to prepare an opposition, and honestly, it was fairly mean (or at least super strict) for the trial court to deny the ex parte request on January 22 to have the motion heard on April 1 notwithstanding their failure to file the motion back in November. The plaintiff still had plenty of notice. Personally, I would have granted that request. (I would have probably made defendant's counsel feel very bad for violating the Local Rule, and might have even conditioned the grant of the ex parte on the payment of some sanctions, but I'd have nonetheless let the MSJ be heard prior to the commencement of the trial. It's an important motion, and there's value in getting rid of a lengthy trial, alongside its associated expense and burden, if there's indeed no genuine issue of material fact.)

So, okay, I would be happy to call this a one-off abuse of discretion given the lengthy notice here, with an express caveat that counsel is nonetheless expected to comply with the local reservation rules and in an appropriate case, might well lose a hearing date if they fail to comply.

But that's not what the Court of Appeal does here.

Instead, it calls into question the entire validity of the existing hearing date reservation system. Justice Miller says that the decision "should not be construed as a challenge to the validity of Local Rule 3310," but its reasoning clearly does conflict with those provisions. The Court of Appeal's holding is based on the theory that because the defendant's motion complied with the statutory time limits of 437c, the court was obliged to hear it, regardless of the local rules. That means that anyone -- anyone -- can similarly ignore those rules. As long as I (1) reserve a court date, (2) file my MSJ 81+ days before the hearing, and (3) that hearing date is at least 30 days before trial, under the Court of Appeal's holding, the court is required to hear it. Regardless of whether or not I complied with the ten- (or three-, or whatever) reservation date requirement.

So why should I even bother to comply? Why give the other side extra weeks (or, months) of notice by filing my MSJ early? Just file it on the last possible statutory (81+) date. The trial court's got to hear it.

Seems to me like that makes the relevant local rules meaningless, or (at a minimum) utterly ineffective, at least as applied to MSJs.

Plus, the Court of Appeal's reasoning doesn't just apply to MSJs, in my view. CCP 437c nowhere says that the trial court has to hear an MSJ that's filed with 81+ days notice and 30 days before trial. It just sets minimums. That's no different than CCP 1005, which does a virtually identical thing (albeit with different deadlines) for regular motions. If you've got a right to have an MSJ heard even if you violate local rules, why don't you have the same right for other motions as well? The underlying statutory language is pretty much the same, after all. And, yes, MSJs are super important, but so are tons of non-MSJ motions; i.e., preliminary injunctions, motions to dismiss, etc. If the Court of Appeal's theory is that the statutory dictates trump the local reservation rules, then it seems like that's equally true for CCP 1005 motions as it is for motions under 437c. Which means, again, that the local reservation rules can be essentially ignored.

Look, I'm not a huge fan of the reservation rules. They sometimes prevent parties from filing motions that they want to file, and nearly always result in motions being heard far later than necessary (and with unnecessary excess notice to the other side). I suspect that we could easily tinker with that system to make it more efficient, albeit at some cost to trial courts who would occasionally be burdened with more motions on a given day than they would otherwise feel like handling. (Even then, in that setting, trial courts would always have discretion to occasionally continue motions on their own initiative; this seems to me a preferable way of doing things, though I readily concede that's easy for me, as a non-judge, to say.)

But just because I'm not a fan of the existing system doesn't mean I want local rules like these to be entirely preempted on the theory that the statutory dictates are all that matter. Because I'm not sure that's what the Legislature actually intended, or that it's what the statute's words actually say. And I definitely don't like a system where the most ethical lawyers play by the rules and faithfully follow the reservation system, whereas others game the thing and ignore those rules given the Court of Appeal's opinion.

So, like I said, I'm fine with the result here. I'm totally okay letting the defendant here have his day in court.

I just don't like the underlying theory (or rule).

That's why I wish this one had remained unpublished.

U.S. v. Bejar-Guizar (9th Cir. - July 9, 2025)

After reading this opinion, I so desperately want to drive down there. Desperately So much so that I thought about not writing this post and instead actually doing it.

But it's a 25 minutes drive (plus another 25 back), and I would have to do it at 7:30 a.m., which is a bit early for me. So I have very reluctantly come to the conclusion that I will never, in fact, do it.

Hence today's post.

It's a border stop. Border Patrol agents see someone walking down a street at 7:30 a.m. in the morning. The opinion calls the street "a divided highway" and never mentions its name, but from the facts in the opinion, I'm virtually certain that it's Camino De La Plaza down in Imperial Beach. As you can see from the map, that road is a couple hundred yards from the border, abuts an extensive residential subdivision, and leads to a shopping mall and set of outlet stores.

Anyway, it's 7:30 in the morning, and (as is often the case down there) there's a decently heavy fog (since the ocean's nearby). Border patrol agents see a guy walking down Camino De La Plaza, but he's walking on the side of the street without a sidewalk, and he's also got some mud on his legs and boots.

The agents stop him on the theory that he's just illegally crossed the border, and think that the mud came from crossing the nearby Tijuana River and its environs. They ask him if he's illegally crossed the border and he admits that he has, and that he's a citizen of Mexico (not the United States), so they arrest him for illegal entry.

He gets convicted of illegal entry and sentenced to time served, but appeals, claiming that there was no reasonable suspicion to stop him. The Ninth Circuit affirms. All of the facts above, the panel holds, gave the officers a reasonable basis for believing that he might have illegally crossed the border.

And, honestly, you can see why the case might well come out that way.

But here's what I wanted to do.

I wanted to drive down to Camino De La Plaza at 7:30 a.m. on a foggy morning, put some mud on my pants legs and boots, and walk in the exact same place, at the exact same time, and in the exact same way as Mr. Bejar-Guizar. A 58-year old white guy walking on the same street in the same context.

Do you think that Border Patrol agents would stop me? Or would they think that I'm just a guy out for a morning walk -- probably from the next-door subdivision?

I wanted to do it half a dozen times and see how often they actually pulled over and stopped me. My suspicion -- right or wrong -- was: rarely, if ever.

There's zero about Mr. Bejar-Guizar's race in the opinion. But it seems extraordinarily unlikely to me that this had absolutely nothing to do with him being stopped.

Maybe I'm wrong. Maybe agents would similarly stop me every single time and demand proof that I was a legal U.S. citizen.

But I suspect not.

Dessins LLC v. City of Sacramento (Cal. Ct. App. - July 9, 2025)

This seems like a pretty sweet way to circumvent Proposition 218.

Proposition 218 was adopted in 1996 and makes sure that cities can't raise property taxes by calling them "fees" without a majority vote of property owners. So, for example, here in San Diego, for the past 100 years, the City has paid for trash pickup from residential addresses. The City didn't feel like paying for that any more, and wanted to start charging fees to property owners for trash pickup. Under Proposition 218, they needed to get the affirmative vote of property owners, which they (barely) did in 2022.

So let's say, for example, that a city currently spends $200 million or so on police services, fire services, road repairs, or whatever -- anything somehow related to protecting or improving access to property in the City. The City feels like raising property taxes to cover the expense, but can't do that under Proposition 218 without a vote. So it lets every property owner vote; say, one vote for every parcel owned, or one vote for every 1000 square feet of space. Whatever.

Here's the rub, though. The City itself owns some property. Lots of it. The City wants the tax to pass, so it votes all its votes in favor of the tax -- a tax that would basically pay itself. (And unlike regular property owners, the City makes sure that it votes 100% of its votes; no forgetting to vote or anything like that.) When the City's votes are included in the total, the measure passes, even though the non-City voters didn't approve the tax.

Is that legitimate?

The Court of Appeal says it is. And that's pretty much exactly what transpired here.

Sacramento wanted to impose a sewer tax to raise $20 million, so it put it to a vote. Everyone with a piece of property got one vote, so the City sent out around 130,000 ballots. Only a fraction of those ballot were actually returned; only around 40,000 of them.

When the final results were tallied, the measure passed: 22,178 ballots were voted in favor of the tax, and 20,229 were voted against.

But that's because the City itself had over 2,000 City-owned properties. And it voted every single one of its ballots in favor of the tax. Without those votes, the tax would have been defeated.

Oh well, says the Court of Appeal. Election is valid. The City will pay the taxes (albeit to itself), so it gets to vote.

That may well be what the text of Proposition 218 permits. But I doubt that anyone actually thought about this issue at the time -- or that, if they did, they'd have allowed the taxing authority to itself vote in the election.

As it stands, it's a pretty effective way for municipalities to tilt the vote in their favor. So I'd very much expect it to be used in the future.

People v. Superior Court (Broadway) (Cal. Ct. App. - July 8, 2025)

It's always disturbed me that California DAs get to effectively bounce pro-defendant judges from criminal dockets through blanket peremptory challenges. Seems wrong.

Then, today, I read this opinion, which seems equally, if not more, abusive.

San Diego has a Behavioral Health Court that's designed to be an alternative forum for defendants with severe mental illness. Rather than incarceration, defendants receive lengthy supervised treatment under formal supervised probation. Trial courts can make referrals to have defendants screened for participation in the Behavioral Health Court, and often do so via agreement by the parties (i.e., the prosecutor and the defendant, often as part of a plea deal), but occasionally do so even when the prosecutor isn't on board for the referral. Ultimately, it's the judge's call whether the defendant is successfully screened for participation in the Behavioral Health Court.

There's only one judge on the Behavioral Health Court, who's full time there. The San Diego District Attorney wasn't happy about defendants occasionally being screened and/or accepted into that program without their consent. So the office had a simple solution: They just filed a peremptory challenge against the sole Behavioral Health Court judge whenever they objected to the defendant's participation. No judge, no program. Done.

The trial court blocked the challenges, but the Court of Appeal reverses. Policy successful.

Yet another argument, in my view, against peremptory challenges to judges in criminal cases.

Rowland v. Watchtower Bible & Tract Society (9th Cir. - July 7, 2025)

I'll forthrightly state that, at the outset, I was dubious about this Ninth Circuit holding. But, in the end, the opinion by Judge Lasnik -- sitting by designation from the Western District of Washington -- probably persuades me.

There's a personal jurisdiction fight between the parties and the general counsel of the defendant submits an affidavit that contains misleading or inaccurate facts that says that the defendant has no contacts with the forum state. After some discovery, the plaintiffs figure this out and file a Rule 11 motion, which in turn results in the defendant withdrawing the affidavit. Since that withdrawal was within the 21-day safe harbor period, no sanctions under Rule 11 are permitted.

But the plaintiffs then ask for sanctions under 28 U.S.C. § 1927, which permits sanctions against “[a]ny attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously.” Textually, section 1927 applies. The general counsel (1) was "an attorney," (2) admitted to a "court of the United States" (the Supreme Court), and (3) he vexatiously and unreasonably multiplied the proceedings.

But come on. The affiant here was a fact witness. He wasn't acting as a lawyer. I'm confident that Section 1927 was intended to sanction lawyers, not witnesses. That's the lawyer's main argument on appeal, and the one the Ninth Circuit addresses today.

That argument is far from frivolous. I'm a lawyer. I definitely don't want to be subject to sanctions under Section 1927 whenever I happen to be a fact witness. That seems unfair, and not the purpose of the law.

Judge Lasnik nonetheless gives good arguments, in my view, for why we might well want to actually treat lawyers differently, and potentially subject them to sanctions even when they act as fact witnesses. I found this paragraph tolerably persuasive: 

"Brumley’s proposed reading of § 1927—that an attorney must be acting “as an attorney” to be sanctioned—is debatable. Counsel for Brumley expressed concern that a lawyer admitted to conduct cases in a federal court who witnesses an accident might become subject to § 1927 sanctions if the lawyer submits a signed affidavit in federal court proceedings related to that accident. We note that independent of any laws or court rules, attorneys are bound by rules of professional conduct that impose duties on attorneys as a requirement of holding a law license. Those duties include the duty of candor to the tribunal. Judges are well aware of this duty and as a result may give more weight to, for example, a sworn affidavit signed and filed by an attorney. The essence of § 1927 is that when an attorney abuses the extra trust placed in them by a court, and thereby wastes a significant amount of the court’s time, that attorney may be sanctioned and, where appropriate, ordered to personally pay the excess costs, expenses, and attorneys’ fees traceable to the relevant conduct."

Ultimately, the Ninth Circuit holds that it need not wade into this dispute because the affiant here was "acting" as an attorney since he signed the affidavit in his role as general counsel for the defendant. I'm not entirely certain that's true, but okay. Arguable. It at least skirts the issue for now as to whether Congress really intended in Section 1927 that attorneys be held to a higher standard even when they are merely fact witnesses and participate in a role entirely unrelated to their status as an attorney.

I'm also not entirely convinced that the Ninth Circuit really needed to reach out and resolve this issue. It's undisputed that the attorney didn't make the "I wasn't acting as a lawyer" argument below, so it's forfeited. Seems to me the Ninth Circuit could have just booted the case on that basis alone. Sure, it's a legal issue, so the court has discretion to reach the merits if it wants. But I might have just been happy to resolve the issue on procedural forfeiture grounds and leave the bigger -- tougher -- question for another day.

Still. I was impressed with Judge Lasnik's ability to push me to a position that I was initially quite disinclined to support. Well done.

RND Contractors v. Superior Court (Cal. Ct. App. - July 1, 2025)

There's a lot to be said favorably about this opinion. Starting with its opening paragraph, which nicely summarizes its holding:

"This case raises an issue of first impression under California law: when a defendant moves for summary judgment, but the plaintiff does not oppose the motion, may another party oppose the motion? We hold that the party may do so if that party and the defendant are adverse to one another. We further hold that there need not be crossclaims between those parties for them to be adverse to one another."

I can very much understand where Justice Codrington is coming from in this regard. We don't want to grant summary judgment unnecessarily. And there are, indeed, real reasons why one defendant might well not want an MSJ granted to a co-defendant; namely, because it might cut off potential future claims for indemnity.

So why not let 'em oppose the MSJ? If the facts are indeed clear, go ahead and grant the motion, but if they're not, deny it. Who cares which particular party felt like writing the brief?

Totally understandable.

Three things, though:

(1) Sure, that solve the MSJ problem. But what about the things that come next? Plaintiff doesn't care, as is evident by its failure to oppose the MSJ in the first place. What is the court going to do when plaintiff doesn't show up for trial, or doesn't put on any evidence about the MSJ-moving defendant? Do you let the co-defendant do plaintiff's job for them at that point too? What about when the MSJ-moving defendant sends an RFA to the plaintiff that says "Admit I'm not liable" and the plaintiff responds "Admit"? Are we going to still let the co-defendant get in the way? As a practical matter, it just seems like this holding simply kicks the problem down the road -- with additional expense and complexity -- rather than actually solving it.

(2) As the opinion notes, there's a split in the federal district courts on this exact issue. Some allow the co-defendant to oppose the MSJ, and some don't. Justice Codrington says that she doesn't have to wade into this dispute because there's a California Supreme Court opinion that once said that "any adverse party may oppose the motion," so that means that ANY adverse party -- including a co-defendant -- necessarily can file an opposition. Justice Codrington admits that this statement is dicta, since the case itself had nothing whatsoever to do with that procedural issue, but notes that dicta from higher courts should generally be followed, so that's what she's doing here.

But is that sentence from the prior opinion really "dicta" in the relevant manner? What we usually mean by "dicta" -- and why lower courts generally follow it -- is that it's a holding, albeit an unnecessary one, from the higher court. But there's a difference, in my view, anyway, between true "dicta" on the one hand and something that the higher court merely "once said" -- at least in terms of the general rule that we try to follow it. Dicta that involves a considered judgment is one thing. That we generally follow, even if the issue was technically unnecessary to the result. But random background sentences -- which is, respectfully, what's at issue here -- are another thing.

Imagine, for example, that in the course of an opinion about a particular person's conviction for contempt of court, where the core issue was simply whether that person had indeed engaged in contemptuous conduct (say, by appearing shirtless in court), the California Supreme Court's opinion contained the following sentence: "It is self-evident that any court could validly impose contempt upon a person who appeared naked in a courtroom." Then, many years later, X appears naked in a San Diego courtroom, and for some inexplicable reason, a trial court in Alpine County, with zero connection to the dispute or parties, enters an order holding X in contempt. Well, the California Supreme Court did indeed say that "any court" can validly enter a contempt citation in such settings, right? So we follow that dicta, correct?

I think not. Sometimes courts just say things. They use imprecise language. They write background sentences without thinking much about them. Those types of things, in my view, are not true "dicta" that we generally follow. They're instead entitled to a much weaker form of deference. Yes, we might well go ahead and follow those literal words if it makes sense. But if it doesn't, we shouldn't. When the words are something that the higher court didn't think about at all -- which is pretty clearly the case with the sentence Justice Codrington relies upon here -- I think it's a mistake not to wade into the debate on the merits and figure out which side in the split of non-controlling authorities has the better of the argument. Maybe, in the end, the outcome here is the right one. But we shouldn't just blindly follow a throwaway sentence of a higher court just because, literally read, it might potentially provide an answer to the issue here.

(3) Finally, isn't there an easier way to deal with the underlying problem? The reason the co-defendant is an "adverse" party is because, Justice Codrington says, they might not be able to sue for indemnity if the MSJ is granted, since (after all) a court has already found that the moving party isn't liable. Why don't we just solve that issue? Can't we just hold that where, as here, a defendant moves for MSJ without any opposition, the issue was not resolved at a contested proceeding and hence isn't entitled to any issue preclusive effect? Which, in turn, would mean that the co-defendant isn't really an "adverse" party in any event, and so isn't obligated (and can't) oppose the MSJ? Wouldn't that be a more direct way to solve the underlying problem rather than having to deal with all the post-MSJ procedural complexities identified above in (1)?

Again, I appreciate Justice Codrington's opinion, and she might well have the better of the argument here.

But maybe not. Maybe there's an easier, and perhaps better, way.