Brockman v. Kaiser Foundation Hospitals (Cal. Ct. App. - Sept. 29, 2025)

I'm not sure why Harmeet Dhillon is listed as the first counsel of record in this appeal. Or, more accurately, why -- at least according to the docket sheet -- she never substituted out of the case.

Because I'm pretty sure she's been the Assistant Attorney General for Civil Rights for nearly six months already.

I'm fairly confident that you can't retain your position as counsel of record for someone in a civil lawsuit while simultaneously serving as an official in the United States government.

(Put to another side that she apparently maintains her own law firm. Or the irony, at least to some, of her appointment as the head of the civil rights division.)

Mia Familia Vota v. Peterson (9th Cir. - Sept. 22, 2025)

Not surprisingly, many of the conservative judges on the Ninth Circuit voted (unsuccessfully) to take en banc the panel's decision to uphold the district court's preliminary injunction of Arizona's rules that require people to present proof of citizenship in order to vote.

Those various judges explain their respective positions here.

It's now the Supreme Court's turn.

In re A.M. (Cal. Ct. App. - Sept. 19, 2025)

Justice Wiley rightly publishes this opinion. You generally can't take away parental rights just because the parent is in prison. There has to be some harm to the child.

In the case at hand, Father and Mother had joint custody, but then father committed a crime and went to prison. Father arranged for the child to live with his sister, Martha, and that worked out just fine. But one day, Mother picked up the child and refused to return her, and since Mother had joint custody, there was nothing Martha could do about it. So the child was with Mother. Which very much didn't work out -- I'll not recount the many problems there (including, weirdly but insignificantly, that Mother often picked up the child from school "wearing a bathing suit") -- so the court removed the child from Mother.

But at the same time, the court also took away Father's rights, on the theory that he couldn't care for the child while in prison. Hence the child's appeal, since the child wants Father to retain parental rights and loves Father.

The Court of Appeal reverses the decision below and remands for reconsideration in light of whatever events have transpired in the meantime.

As I said, Justice Wiley's opinion is helpful, and seems generally right to me. But I nonetheless wanted to mention a couple of nits that came to mind while reading it.

First, at the top of page seven, the opinion claims that the child "was not [] affected by the father's criminal activity" (which involved possession of a gun and drugs). I agree that his crime wasn't alone sufficient to terminate Father's parental rights, but it seems wrong to say that the child wasn't affected by his crime. She was. If he hadn't committed a crime, he wouldn't have gone to prison, and the child would have retained his in-person love, affection and companionship. She pretty much entirely lost that once he went to prison. She was accordingly most definitely affected by his crime. It harmed her, and in a way about which we care. (Again, that might not alone be sufficient to terminate parental rights, but it affected her, and I would not say or pretend that it didn't.)

Plus, the fact that Father was in prison almost certainly made it a fair piece harder for him to prevent Mother 's alleged psychosis and drug use from harming the child. Father apparently tried -- or at least started the process -- of trying to get sole custody of the child once Mother took the kid away from Martha. That'd have been great. The trial court found that Father failed to protect the child from Mother while he was in prison, but Justice Wiley's opinion responds that since Mother had joint custody, Father "could not be blamed for failing to do what he lacked the legal right to do" (e.g., stopping Mother from taking the child from Martha). That's true to a degree. 

But Father did have a legal right to request that the court remove joint custody and give sole custody to Father (as he indeed attempted to do). And the fact that he was in prison made such a request more difficult to effectuate -- both practically (because it's tough to file things in prison) as well as effectively (because judges look somewhat less kindly on the prospect of giving sole custody to someone who's in prison and hence can't personally take care of the child). So, in part, yeah, Father can, in fact, perhaps be blamed -- at least a little -- for not doing something that he indeed had a legal right to at least attempt to do.

Lastly, I would have liked to hear more about what seems to be an important undercurrent here. Justice Wiley's opinion contains the following brief mention: "The juvenile court originally detained A.M. only from the mother. However, after noting that a lack of removal from the father might impair Martha’s ability to get funding, at county counsel’s suggestion," there was another hearing, and the court at that point removed the child from Father as well."

If the real reason the trial court removed the child from Father as well was simply to get the child more support, and that worked, well, geeze, I totally understand why it did what it did. (Even if that's perhaps legally erroneous.) Is the ultimate effect of giving Father back his parental rights that this seven-year old child now has less support (e.g., food, money, etc.) than she did before today's Court of Appeal opinion? If so, that radically sucks. And if that's the real reason why Commissioner Marpet (in L.A.) did what he did here, quite frankly, I can both see why, and empathize with, why that happened. Something that the tenor of the Court of Appeal's opinion doesn't really reflect.

So I would very much have liked to hear more about this. I'm not entrenched enough in the dependency space to understand the details. But I definitely want this child to have (1) a parent who loves them and who can at least make arrangements for her care while he's in prison, while (2) simultaneously getting the support she needs. If, for some reason, (1) is inconsistent with (2), I would like someone to explain to me why that's in fact the case. 'Cause it needs to change.

Federal Courts Class (9th Cir. - Sept. 17, 2025)

What I recall about my Federal Courts class in law school was that it was (1) very difficult, and (2) very confusing. And I tried. Hard. (I ended up doing just fine, but still.)

I say that because I had a similar reaction to the two Ninth Circuit opinions published today, both of which directly involved various complicated doctrines that we discussed at length in Federal Courts. 

The first of today's opinions involves Younger abstention alongside constitutional ripeness doctrines in the context of a federal First Amendment challenge to medical disciplinary proceedings brought against various Washington state doctors who published misleading information about COVID during the pandemic. Yikes. Complicated complicated complicated. (But, ultimately, yes, the federal courts abstain over many of the claims and the rest are unripe).

The second opinion involves yet another abstention doctrine -- this time, Colorado River -- and how it  in turn applies to appellate deadlines under Rule 58(c); do you have to file an appeal immediately under the collateral order doctrine, or can you wait until the denial of a motion to vacate the stay, and in either event, when does the appellate clock start ticking in the context of a "text-only" (i.e., no PDF attachment) minute order from the district court? Yet more multifaceted and complicated stuff. (Short answer, by the way: You must appeal immediately.)

In short, my head hurts today in somewhat the same fashion as it did 35 years ago as a 2L in law school.

American Encore v. Fontes (9th Cir. - Sept. 16, 2025)

The Ninth Circuit holds that Arizona can't prohibit election activity that occurs "with the intent or effect of threatening, harassing, intimidating, or coercing voters." 

I'm somewhat surprised at that result. That Arizona provision seems to me quite similar to 18 U.S.C. sect. 594, which makes it a crime to "threatens, coerces, or attempts to intimidate, threaten, or coerce, any other person for the purpose of interfering with the right of such other person to vote or to vote as he may choose." The Ninth Circuit opinion nowhere mentions Section 594, which has been repeatedly upheld by the courts. The substantive language of the Arizona provision -- e.g., "intimidate," "threaten" and "coerce" -- is basically identical to the federal provision. Hence my surprise.

Admittedly, there is one portion of the Arizona provision that seems different, and problematic. The Arizona Secretary of State has provided "examples" of conduct that might violate the Arizona law. Some of those examples seem totally fine to me; e.g., "[b]locking the entrance to a voting location," [d]isrupting voting lines, etc.

But one of those examples is "[u]sing threatening, insulting, or offensive language to a voter or poll worker." Today's Ninth Circuit opinion focuses pretty much exclusively on the "offensive" part of that example, noting -- accurately, I think -- that language that might perhaps be deemed offensive may still be protected by the First Amendment.

Fair enough. I see why one might accordingly enjoin enforcement of that example. But the underlying regulation, which its express focus only on conduct that threatens, harasses, intimates or coerces voters, nonetheless seems fine to me. Personally, I don't think that "offensive" language in fact constitutes a threat or intimidation or coercion, so don't see how it would qualify in the first place. But given the example, why not just sever the unconstitutional example -- which isn't even actually part of the regulation, but rather merely an "example" of ostensibly prohibited conduct?

This is also relevant, I think, to the standing inquiry. I'm sympathetic to the panel's view that there's a potential chill on speech. But given the absence of anyone actually being charged -- or even threatened -- with using "offensive" speech (pursuant to an "example" promulgated by the Secretary of State), is it really plausible that someone's going to be prosecuted for, say, wearing a shirt that says "Israel has a right to exist" (which is one of the hypotheticals in the opinion)? Doesn't seem likely, particularly given the text of the actual regulation. I strongly doubt anyone, in any universe, would think that such a piece of clothing would "threaten" or "intimate" a voter.

So, yeah, the "offensive" example seems wrong (and impermissible), but I'm not sure that enjoining the entire regulation seems appropriate for one erroneous exemplar.

People v. Millsap (Cal. Ct. App. - Sept. 11, 2025)

I very much understand the Court of Appeal's ruling. It's a death penalty case, and an automatic appeal is accordingly pending before the California Supreme Court. So the Court of Appeal holds that the trial court does not have jurisdiction over a resentencing petition, since that might interfere with the disposition of the automatic appeal in the California Supremes.

Though, as the opinion notes, the murders here transpired in the previous century, the death sentences at issue were imposed a quarter century ago, the briefing in the California Supreme Court took seventeen years, and the California Supreme Court has been "working" on that appeal for the past eight full years.

Given these facts, as a practical matter, I'm not sure that there's a ton of hard work going on with which to interfere anyway.

But I get it. Doctrine. Exclusive jurisdiction. Understood.

U.S. v. Green (9th Cir. - Sept.10, 2025)

Judge Lee's opinion today seems moderate and right to me. Yes, the sentence is long (12+ years), but there's insufficient evidence that it's inordinately long, and the defendant was convicted of attempting to pimp a 16-year old and the statutory minimum is 10 years. Yes, there was some basis for asserting that there might be discriminatory racial prosecution, since all of the San Diego federal juvenile sex trafficking sting defendants were Black, but the sample size was incredibly small (six people) and the district court didn't abuse its discretion in refusing to allow discovery. Those conclusions seem sound to me, and I liked the careful and considerate way Judge Lee wrote the opinion.

I'll add that I thought that the San Diego task force that conducts these online stings seems to be doing a very good job. You can read the opinion for more details. But I was very impressed by the professionalism and effectiveness of the stings. Put up a fake Instagram page of a fake woman with risque photographs and various veiled references to prostitution (e.g., stacks of money, "roses" (which I know from other cases is a euphemism for money paid for sex), crowns, etc.) and let the potential would-be pimps come to you. And then, once they do, slowly reel them in, and then up the ante by saying that you're 16. That latter point will make for huge time in prison.

The one symbol I didn't understand -- which I then had to look up -- was including the number "304" in the Instagram handle. What? How's that a reference to prostitution? Hadn't heard that before. I know from originally being from Virginia that that's the area code for West Virginia, but how's that related?

Oh. Now I get it. Type it into a handheld calculator and turn it upside down and it spells "Hoe".

Like anyone has a handheld calculator these days anyway.

Kruitbosch v. Bakersfield Recovery Services (Cal Ct. App. - Sept. 8, 2025)

About six months after plaintiff's life partner passed away, a co-worker named Lisa Sanders allegedly started showing an interest in him. A lot of interest. As today's opinion explains:

"Sanders began sending plaintiff multiple unsolicited nude pictures and stating she wanted to have sex with him . . . . On March 3, 2023, Sanders went to plaintiff’s home uninvited and brought a[nother female] friend. Sanders indicated to plaintiff she was there to have sex with him . . . . Sanders again indicated she wanted to have sex with plaintiff. Sanders eventually departed plaintiff’s property, but in his driveway she left behind a cucumber with a condom attached. Later that same day, Sanders texted plaintiff and invited him to a hotel room to have sex and stated, “‘I’m at the sleep inn & suites and I have dope … let me know if you want to fuck.’” She also sent plaintiff multiple sexual images, including of her genitals, breasts and buttocks."

I hate days like that.

People v. Roberts (Cal. Ct. App. - Sept. 9, 2025)

Life tip: If you've got a no license, a fake identification on your center console, and a loaded gun and $14,000 in a little black bag, maybe don't go speeding down the 680 in front of a cop.

Just a suggestion.

Jones v. City of North Las Vegas (9th Cir. - Sept. 8, 2025)

Fair warning: I'm about to make a brief but completely inappropriate and insensitive comment.

Here goes:

I bet that the City of North Las Vegas wishes that Kristi Noem had been appointed to the Ninth Circuit and was on this panel.

(The opinion involves the disputed liability of the City for shooting two innocent dogs during its search for a suspect. The Ninth Circuit reversed the district court's dismissal of the lawsuit against the City.  As for Kristi Noem, well, you know.)

Morales v. City & County of San Francisco (Cal. Ct. App. - Sept. 4, 2025)

I agree with Justice Rodriguez that this appeal is frivolous. The sanctions imposed below were entirely justified given the multiple failures to respond to some of the form interrogatories, and appealing their imposition was entirely unreasonable. (Unlike Justice Rodriguez, I don't really care about not briefing one of the three issues listed in the notice of appeal -- that's fairly routine -- and I think it arguable that the appeal of the separate $1,500 sanction is permissible notwithstanding the $5,000 appellate minimum given the other $6,500 sanction. But, yes, with respect to the $6,500 sanction, the appeal is clearly meritless.)

So I'm on board for additional sanctions on appeal.

But two things were interesting.

First, it's unusual for the Court of Appeal to admit that the oral argument flipped its intended outcome. The tentative appellate opinion rejected the appeal on the merits (obviously) but denied to impose additional sanctions. But then the panel heard oral argument and went the other way on sanctions. The oral argument of appellants clearly did not help their cause.

Second, I thought it unfortunate that Justice Rodriguez didn't explain in the opinion how he selected the amount of sanctions imposed. The opinion notes that the San Francisco City Attorney's office asked for nearly $200,000 in sanctions, claiming that this was how much the City spent defending the appeal. To be honest, I was stunned by this request. It should not cost $200,000 to file (1) a single opposition brief, (2) opposing a silly, frivolous (read: easy) appeal, (3) over a dispute involving only $6,500. If the City did, in fact, spend over $190,000 in opposition to the appeal, then I seriously question the oversight (and wisdom) of the Powers That Be in the City Attorney's Office. It shouldn't require (or justify) nearly that much.

My initial reaction, to be honest, was to potentially deny sanctions entirely on the ground that the amount of sanctions requested was itself manifestly excessive.

In the end, the Court of Appeal imposes $30,000 in sanctions. That sounds pretty much exactly right to me.

But it does so without any explanation for this figure. Or any discussion at all between the huge variance between the amount of sanctions requested ($190,000+) and the amount of sanctions imposed ($30,000).

I'd have liked to hear more about this.

Still would.

People v. Sarabia (Cal. Ct. App. - Sept. 4, 2025)

This is an opinion by Justice Wiley, so it's replete with one- and two-sentence paragraphs. One series of paragraphs/sentences reads:

"Sarabia fired more shots through the door at Ramon. 

Romero ran to a closet. She hid behind the curtain that served as the closet door. 

Sarabia called to her, “Where are you, bitch?” 

Sarabia shot through the curtain into the closet, hitting Romero in the stomach. Despite her wound, Romero kept quiet. She heard Sarabia rustling among things in the room. 

When Sarabia left, Romero called 911. 

Officers found German dead in a pool of blood. 

The officers heard the shower running. They tried to open the door, but it was blocked. Forcing their way in, they found Ramon in a deathlike pose. Paramedics later saved Ramon."

I understand all of that, but I'm not sure what it means to be in a "deathlike pose" (or why that's significant or worthy of inclusion).

I've looked it up, and apparently that term has never heretofore be used in any published (or unpublished) state or federal opinion. Mr. Google says there are some clinical references to the term, but I'm still not sure what the phrase is intended to convey, other than that Ms. Romero was shot and presumably lying in a still position.

Though, as an aside, "Deathllike Pose" might be a good name for a band.

U.S. v. Taylor (9th Cir. - Sept. 3, 2025)

You don't see above-guidelines sentences very often. But from the facts of this case, you can potentially see why the district court (and Ninth Circuit) thought that Mr. Taylor was an understandable exception to the usual rule:

"In October 1995, Taylor robbed four banks across Los Angeles (the “underlying criminal offense”). Taylor pleaded guilty to five counts . . . In April 1996, the district court sentenced Taylor to 147 months of imprisonment for the underlying criminal offense. The court also imposed a five-year term of supervised release for the underlying criminal offense, subject to conditions.

In April 2007, Taylor’s term of supervised release began upon his release from prison. In August 2008, Taylor used a handgun to rob a bank. Taylor was prosecuted in state court, and received 17 years of imprisonment in state custody. In December 2018, while still in state custody, Taylor stabbed another inmate with a knife. Taylor received four years of imprisonment in state custody for charges arising out of the stabbing, to run consecutively with Taylor’s existing 17-year sentence. From 2016 to 2023, Taylor was cited for 17 rules violations while in state custody, some of which involved violence.

In November 2023, Taylor completed his state term of imprisonment and was transferred to federal custody. Previously, the United States Probation Office (Probation) had filed a petition for revocation of supervised release, alleging that Taylor’s August 2008 conduct violated the conditions of his supervised release. In December 2023, Probation amended its petition for revocation of supervised release. Given Taylor’s criminal history, Probation calculated a revocation imprisonment range of 18–24 months. Taylor admitted all allegations in the amended petition. The district court accepted Taylor’s admissions. 

In February 2024, upon revoking Taylor’s supervised release, the district court sentenced Taylor to an above-Guidelines sentence of 60 months of imprisonment, followed by 24 months of supervised release."

Mr. Taylor's been in prison for almost three decades, with the exception of a single year outside -- and he made sure to rob yet another bank (and get caught) promptly upon release. That, plus the stabbing while in prison, plus all the rules violations, does not exactly make a judge think that the guy's rehabilitated at this point.

(And, yes, I know that "rehabilitated" is allegedly a "made up word," at least according to this guy. Still. His allocution was, I suspect, quite a bit more persuasive than Mr. Taylor's.)

People v. Parker (Cal. Ct. App. - Sept. 2, 2025)

Sometimes opinions are fascinating simply because they give insight into other people's personalities; insights that we wouldn't ordinarily see (and/or people with whom we wouldn't otherwise ordinarily interact).

Here's one of those opinions.

I just can't fathom reacting the way he did. I mean, I get it. I've read lots of criminal opinions. I get that people have impulse control issues.

Still.

"Defendant and the victim, Megan Carling-Smith (Megan) met and began dating in 2014 or 2015. They moved into an apartment together in July 2015. In 2018, they made plans to get married. That same year, Megan began looking to buy a home where they could live together. In October 2018, Megan’s offer on a home was accepted, with the closing date set for late November. 

In the early afternoon of November 20, 2018, Megan left the apartment to sign escrow closing papers. Megan asked defendant to accompany her, but he chose to stay home. When Megan returned to the apartment, around 4:00 p.m., defendant was intoxicated. Defendant testified that he had started drinking a little after noon. He drank two pints of liquor, smoked four or five marijuana joints, and consumed prescription pills (Xanax and Percocet) that he had gotten from a friend.

That evening, defendant and Megan argued about defendant’s infidelity. Defendant testified that during the argument, Megan “kept pushing the issue” of his infidelity and “wouldn’t let it go.” They “just kept arguing and arguing about the same thing over and over.” Eventually, he “kind of just snapped.” In a “rage,” he violently beat Megan, repeatedly hitting her in the face and body and strangling her, until she was unconscious. 

Defendant admitted that Megan did not have any weapons, did not threaten him, and did not use any force against him. He did not remember any particular words that Megan said to trigger him: “We were just arguing.” When asked why he reacted as he did, defendant responded, “I don’t know. I wasn’t thinking clearly at all.” “I think it was just the pushing of the issue.” He recalled that Megan did not say anything to him during the attack and that she did not fight back. 

After Megan stopped moving, defendant moved her to the bedroom. She was not responsive, and defendant was scared. At some point, he tried to perform CPR, but “[i]t didn’t really work well.” At 3:48 a.m., defendant searched on the Internet for “how to tell if somebody is actually dead.” Around 7:10 a.m., he searched for “how to check for a pulse.” Around 8:05 a.m., defendant called 911. Defendant lied to the dispatcher and said that Megan had been injured in a car accident the night before and that he had found her unresponsive upon waking that morning. 

When paramedic firefighters arrived, they found Megan’s body on the floor of the apartment. She had bruising, swelling, and trauma to her face. She had no pulse, her skin was cold, and rigor mortis had set in. She was pronounced dead at 8:11 a.m."

As the jury found, that's second degree murder. Affirmed.

McNeil v. Gittere (9th Cir. - Sept. 2, 2025)

When I first started reading this Ninth Circuit opinion, I thought I was going to insult the Nevada Attorney General's Office for blowing the 30-day deadline to file their notice of appeal. After all, it's a very easy deadline to follow, and filing the notice itself is incredibly straightforward.

But once I read on, I realized that such a critique would be misplaced. I understand now exactly why they thought they had more time: because the Federal Rules of Civil Procedure unambiguously gave them 150 days. Yet the Ninth Circuit holds -- for the first time ever, in any court, I believe -- that these appeal rules impermissibly conflict with the underlying statute and are thus invalid.

Good to know.

Today's Ninth Circuit's holding is applicable only to appealable interlocutory orders; here, the district court's denial of qualified immunity. Nonetheless, it's important. There are lots of those, and I suspect that lots of governmental bodies have filed their appeals beyond the usual 30-day period.

No more. After today's opinion, it's crystal clear that they've only got 30 days.

Which shouldn't be a problem. Again: it's easy to file the notice. You've just got to know the rule.

I'm fairly confident that everyone intended to give would-be appellants in these circumstances 150 days. So, in a perfect world, Congress would just amend the underlying statute to correspond to the dictates of the Federal Rules of Civil (and Appellate) Procedure. (Or the Supreme Court would grant certiorari and reverse.)

We'll see if any of that happens.

For now, though, remember the rule: 30 days. File quickly.