In re Lynex (Cal. Ct. App. - Feb. 19, 2026)

Strange language in this opinion.

Defendant, who was convicted of murder and sentenced to 50 years in prison, files a petition under the Racial Justice Act and requests appointment of counsel to press his petition. The trial court denies his request for counsel, but the Court of Appeal issues a writ. On the merits, everything the Court of Appeal does makes sense and is easily understood.

But footnotes 2 and 5, and the text accompanying them, are weird.

Defendant's underlying claim is that black defendants are illegally and disproportionately charged with murder and firearm enhancements. He's got some data that allegedly backs that up, so his basic RJA claim is that he was treated differently than similarly-situated white defendants. Classic stuff.

Here's the sentence in the opinion that corresponds to footnote two, alongside the footnote itself:

"In 2025, Lynex, who claims to be an African American man,[2] filed a petition for writ of habeas corpus under the Racial Justice Act. [Footnote 2]: (See fn. 5, post)."

The opinion then goes on to reproduce the chart that shows the number of defendants of each race charged with murder with a firearm allegation for 1998, 1999 and 2000, and drops footnote five, which reads:

"In a declaration Lynex filed in support of the petition, he identified himself as an African American man."

What's super strange to me is that, as far as I can tell, no one disputes that Lynex is African American. He's not claiming to be Black. That seemingly indisputably is his race. So why the multiple footnotes that say that Lynex "claims" to be (or "identfie[s]" himself as) part of that race? Is there really a fight about this?

I understand that, at some level, someone's race may be indeterminate. I tried but failed to locate a picture of Mr. Lynex to see what I could see. What I did find, however, was a description of Lynex put out by the LAPD at the time of the underlying murder, which reads: "Witnesses described seeing a heavyset male Black, approximately 25 years-old, involved in a dispute with the victim. The confrontation escalated and the lone suspect fired several rounds, striking the victim. The suspect fled from the location and remains outstanding." So if Mr. Lynex is not, in fact, Black, I bet that was somewhat surprising to the LAPD when it arrested him, and ultimately obtained a conviction.

Now, maybe there's an underlying dispute somewhere about the race to which Mr. Lynex actually belongs, but if there is, I can see absolutely no evidence of it. I thought that, perhaps, Justice Bendix was simply being super careful never to classify someone on account of their race, but later in the opinion, when discussing someone else, Justice Bendix writes: "In McIntosh, a Black criminal defendant filed a habeas petition raising claims under the Racial Justice Act, and sought appointment of counsel to help him prosecute his petition." No caveat there about Mr. McIntosh "claiming" to be Black or anything like that. Unlike here.

I get it that race is a hot-button issue. I also fully understand that one's race is somewhat indeterminate, as well as the historical backdrop regarding this particular issue; e.g., the whole "one drop" thing.

But unless there's an actual dispute, most Racial Justice Act opinions -- or just opinions in general -- don't use qualifying language like "claim" or "identify" when referring to someone's race. So this one struck me as unusual, if only as a descriptive matter.

U.S. v. Romero (9th Cir. - Feb. 18, 2026)

Judge Bennett has a point in his dissent.

Unlike the majority, he thinks that the district court's legal error at sentencing was harmless. And, as a practical matter, at least, I think he's right. On remand, I have extraordinarily little doubt -- indeed, pretty much none -- that the district judge will impose the exact same sentence that he did initially.

It's a case where the defendant attempted to smuggle over 25 pounds of methamphetamine over the border in San Diego in the trunk of his car. That's a lot of meth. Not only is that a serious crime, but after he was caught and out on bond, the defendant made two phone calls to witnesses before his grand jury that might well be deemed to constitute witness tampering. That, plus the prior domestic violence restraining order that one of those witnesses had obtained against him for prior abuse, all adds up to a very elevated risk of exposure at sentencing.

The presentence report recommended a two-level upward adjustment for obstruction of justice, and the district court agreed. As a result, the guidelines sentencing range was 135 to 168 months -- over ten years. But even the government thought that was too much. It recommended 96 months; the defense asked for 30. Judge Sabraw ultimately imposed a sentence roughly in the middle: 60 months, with five years of supervised release thereafter.

Defendant appeals, claiming that he shouldn't have received the two-level upward adjustment. But by the time the case gets decided by the Ninth Circuit -- the indictment was in 2021, and the appeal in 2023 -- it's 2026, and the defendant has already served his full sentence in prison. So there's no getting that time back.

Nevertheless, the case isn't technically moot. Because he's still got the five years of supervised release, which can be changed on remand if appropriate. And, on the merits, all of the judges on the panel agree that the district judge applied the wrong legal standard in deciding whether the two-level adjustment for obstruction was appropriate. The majority says that requires a remand, whereas the dissent says the error is harmless.

Here's where I think Judge Bennett's dissent has a point. There is no way Judge Sabraw is going to reduce the defendant's five years of supervised release on remand. No. Way. Defendant has already received a huge break by getting a WAY below-guidelines sentence: five years as opposed to the dozen or so years the guidelines suggest even without the two-level enhancement. Moreover, on remand, when applying the right legal standard, Judge Sabraw might well still properly conclude that the two-level enhancement was indeed appropriate.

Regardless, the guy's out of prison. We're not talking about his actual custody time any more. We're only talking about whether Judge Sabraw is going to reduce the five years of supervised release at this point.

That ain't gonna happen. Of that I'm virtually certain.

For that reason, in my view, Judge Bennett's dissent has a point. Why remand the case for legal error when we all know full well that the result's going to be no different? What a needless exercise of appellate power, right?

Yes. In a way.

But here's why the majority's contrary position nonetheless seems right to me.

We've got a legal standard here. The relevant law. In the present case, that standard is abuse of discretion. Yes, we know -- or at least I do -- that Judge Sabraw will virtually certainly come out the same way on remand. So why go through the exercise?

To me, it's because we allow him to make the call, not us. The appellate judges aren't there. They don't see the defendant. They're just reading a cold paper record. Yes, I'm fairly confident that Judge Sabraw will continue to find that five years of supervised release remains entirely appropriate, even without a two-level enhancement, particularly given the massive break that the defendant has already received. It behooves everyone to keep an eye on the guy for the next five years to make sure he stays straight. I'm confident that Judge Sabraw will continue to see it that way.

But maybe -- just maybe -- he won't. Maybe he'll come to a contrary conclusion.

Again: He's the one most intimately familiar with the defendant, not the judges on the Court of Appeals. He's seen him. He's heard him speak. We can all read a paper record, but sentencing is not mechanical -- or at least shouldn't be. That's the whole reason why the guidelines are now discretionary, after all. We don't -- and shouldn't -- have artificial intelligence sentence people. We have humans do it. Humans who have actually seen the defendant and who can take his humanity into account.

So even if we, reviewing a paper record, and with full regard to how we know human emotions (and/or the characteristics of a particular judge) generally play out, are convinced that the sentence will remain the same, we still remand. For a sentence imposed consistent with the actual, correct law.

Now, Judge Bennett says in his dissent that a remand isn't required because, on these facts, it would be an "abuse of discretion" to find that the defendant wasn't actually trying to obstruct justice when he contacted the relevant witnesses, even when applying the correct legal standard. And, again, he has a point. Viewing the paper record, I too believe that the defendant was almost certainly trying to in fact threaten the witnesses, which counts (under the correct legal standard) as obstructing justice. He wasn't, in my view, merely trying to "find out" what they said to the grand jury to prepare a legal defense or something like that. His subjective intent -- his mens rea -- was indeed to obstruct justice. And Judge Sabraw, I strongly predict, will so find.

So harmless error, right?

Nope.

Because maybe -- indeed, most likely -- Judge Sabraw will agree with my view of the facts on remand. But maybe he won't. Again: He has the boots on the ground. He's seen the defendant. Sure, looking at the transcript, I think that the words that the defendant used in the two relevant sentences of the phone calls -- that he was “going to go over there” and that “[i]f [I] have a problem, [you] have a problem" -- were subjectively intended at threats. That's my strong take too, particularly given the prior domestic violence of the defendant.

But Judge Sabraw might potentially disagree. I don't think he will, mind you. But he might.

And if he did, that wouldn't necessarily be an abuse of discretion. Yes, I'm confident that I'm right in how I interpret those words. But if someone much more familiar with this particular defendant thought otherwise, I cannot say that he would necessarily and obviously be wrong.

Because what people mean, or intend, is often idiosyncratic. Some people are weird. Some people are unusual. Some people mean certain things in context that aren't readily apparent on a paper record. And if Judge Sabraw were to say: "Look, I know how it sounds, but trust me, I've seen the guy, and know a lot more about this case (and this defendant) than you do, and I don't think that's actually what the guy meant," I would not call Judge Sabraw crazy. He might perhaps be wrong, and I might even think him wrong. But it wouldn't be such an absurd view of the facts that, sitting here reading a paper record, I would call that a total abuse of discretion.

Sometimes what you think is right from the outside is not, in fact, what's right. Imagine, for example, that a defendant goes up to a bank teller, hands her a note that says "Put all the money in the bag or someone will get hurt," leaves with $5,000 in cash in the bag, and subsequently gets convicted of bank robbery. Now, in my mind, on those facts, the guy's pretty much obviously guilty. And that's true even if he gets up on the stand and says: "Oh, no, I was just trying to get my own money that I had in my bank account out of there as rapidly as possible. I wasn't trying to rob anyone. And I know I only had $50 in my account there, so really didn't need a bag, or to threaten to hurt anyone, but I really needed my $50 for crack. Sorry about the words I used, but it's not robbery, just a threat (or assault)." It would very much be my take that, nope, shut up, the guy's guilty.

Imagine that a trial judge (or jury) were nonetheless to find: "You know what? I actually think the guy's right. He wasn't, in fact, trying to rob the bank. He's just an idiot." But even on THESE super clear facts, that would not, in my view, be a total abuse of discretion. Because, yes, on a paper record, I disagree, and think that the words he said -- and the context in which he said them -- are fairly clear.

But I wasn't there. The trial judge was. That means a ton. It wouldn't be an abuse of discretion.

So too here.

And, yes, I know that, in the present case, parts of the transcript are apparently under seal. But I can't imagine anything in the paper record that would change my basic take. This is an area where we rightly defer to the trial judge. And even though, as here, we're darn confident that the trial judge will reach the same conclusion -- the same one that we've come to on a paper record -- we still remand. Because we want to apply the correct law, we want to make sure we got it right, and we want to make sure that the person with boots on the ground will in fact come to the same conclusion that we strongly suspect is the right one on the facts presented.

Which is why, in the end, even though I think Justice Bennett has a good point, Judge Berzon's majority opinion does the right thing.

Hatlevig v. General Motors (Cal. Ct. App. - Feb. 17, 2026)

I don't understand the plaintiff's strategy here. Regardless, whether I understand it or not, it didn't work.

Plaintiff files a lemon law case and prevails, with General Motors agreeing to take back the vehicle and pay $100,000. So at the case management conference on June 2, 2023, the parties tell the court the case has settled, the court orders a dismissal to be filed within 45 days, and it's time for the plaintiff (as the prevailing party) to file a motion for attorney's fees, which the settlement agreement permits.

The Clerk subsequently sends out a notice saying that the case will be dismissed on August 15, 2023 if no one shows good cause otherwise, which no one does. Then, two weeks later, on August 31, 2023, plaintiff files his motion for attorney's fees. That motion gets set to be heard on April 26, 2024.

Okay. That's all straightforward. (Now, why it takes eight months to get a hearing date is beyond me, but whatever. San Diego is . . . busy?)

Here's what I don't understand:

Plaintiff files his attorney fee motion on August 31, 2023, but doesn't serve it until April 4, 2024.

Why?!

You filed it already. Just put it in the mail. Yes, it'll give the other side more time to respond. Who cares?! They could already pull the motion off the court's website if they wanted to (and probably did). Why not serve it simultaneously with filing it?

Whatever the theory, plaintiff decided to wait those extra months to serve.

A fatal flaw.

The trial court holds that the motion was untimely because it wasn't "filed and served" within 180 days of the noticed dismissal, and the Court of Appeal affirms.

That's tens of thousands of dollars (at least) of attorney's fees lost as a result of a seemingly inexplicable decision not to serve a motion alongside filing it.

Live and learn, I guess.

U.S. v. Brandenberg (9th Cir. - Feb. 17, 2026)

In affirming a five-year sentence for threatening to bomb a state courthouse, Judge McKeown's opinion today correctly notes that:

"Brandenburg’s threats arose in a climate of serious threats nationwide against courthouses and judges. In 2008, the San Diego federal courthouse—one of the targets of Brandenburg’s threats—was bombed. See United States v. Love, No. 10-cr-2418-MMM, 2013 WL 1660415, at *1 (S.D. Cal. Apr. 17, 2013). In 2020, District of New Jersey Judge Esther Salas’s son was murdered by a plaintiff who had appeared before her, grimly echoing the killing fifteen years earlier of Northern District of Illinois Judge Joan Lefkow’s mother and husband by a disgruntled litigant. Esther Salas, Federal Judges Are at Risk, N.Y. Times, Dec. 9, 2020, at A25."

To that grim list I might add the bombing murder of Judge Robert Vance, the perpetrator of which was executed in 2018.

People v. Alston (Cal. Ct. App. - Feb. 13, 2026)

Yes, the trial judge wrongly (and inexplicably) failed to state on the record, or anywhere, why it denied defense counsel's objection to one of the peremptory challenges made by the prosecutor, notwithstanding that such judicial findings are expressly required by the statute. Yes, that means that we've got to reverse, thereby wasting the whole initial trial.

But, honestly, the guy's almost certainly getting convicted again on remand. The defendant fairly clearly solicited the cop pretending to be an online 14-year old, so I'd bet big money on another conviction for meeting a minor for lewd purposes and showing pornography to a minor. After all, the guy sent the would-be 14 year old a picture of himself masturbating, and fairly clearly (and expressly) was looking to "link up" with the thought-she-was-a-minor. You're getting convicted in that setting 99 times out of 100. Maybe even 100 out of 100.

Two things, though.

First, the guy only gets sentenced to three years of probation (albeit has to register as a sex offender)? Geeze. For that, just plead guilty. Get the thing over with.

Second, the opinion mentions that, at one point, the defendant sent a text to the would-be-minor that asked if she knew "how to suck D." The opinion immediately follows this revelation by stating that, at trial, the officer "recognized from his training that D was 'short for dick.'”

Really?! That's part of your "training?" They seriously have to tell you at the police academy that the "D" in "suck D" stands for dick?

Even if you didn't know from common experience what that phrase meant, what else could the D even possibly stand for? Diaper? Dreadnought? Dictionary?

Cox v. Gritman Medical Center (9th Cir. - Feb. 11, 2026)

This is a personal jurisdiction case, which somewhat interests me on the merits, but what caught my eye was actually the caption. The principal parties are "Mary Cox v. Gritman Medical Center" alongside "'Others TBD'" as unnamed defendants.

I understand that different states do it differently. Here in California, of course, we typically call the unnamed defendants "John [or Jane] Doe" or simply "Does." This case is from Washington state. Is it really standard practice to simply call them "Others TBD?"

Nothing rides on it, of course. You could call them "John Jacob Jingleheimer Schmidt" for all it matters. (And I desperately hope that someone does, in fact, use that name at some point; it'd be classic.)

Still. TBD. Different for sure.

People v. Flores (Cal. Ct. App. - Feb. 11, 2026)

You advertise on Craigslist to illegally sell one thousand fentanyl pills and get busted by an undercover cop on your way to sell them to him and your sentence is . . . two years probation?!

Wow. Seems like a pretty good business model, honestly.

(Except for the whole "occasionally killing people" part.)

People v. Zapata (Cal. Ct. App. - Feb. 10, 2026)

I'm not sure that the California Supreme Court would agree with today's opinion by the Court of Appeal, which reverses a conviction for failure to suppress a jailhouse confession made to undercover officers posing as inmates after the suspect had invoked his right to counsel and remain silent. Maybe it would, maybe it wouldn't. TBD.

But I fairly strongly believe that the United States Supreme Court would disagree. And might well, notwithstanding the ordinarily low chance of a grant of certiorari.

TBD as well.

In re Marriage of Allen (Cal. Ct. App. - Feb. 6, 2026)

Justice Baltodano writes a very concise and punchy opinion that coherently explains why the Court of Appeal comes out the way it does here. Which is eminently understandable, particularly given the facts underlying the appeal.

But I wonder if the real-world consequences will be counterproductive.

The first paragraph of the opinion cogently explains the holding (which, as always, readers appreciate):

"In In re Marriage of Sabine & Toshio M. (2007) 153 Cal.App.4th 1203 (Sabine & Toshio), our colleagues in Division One held that parents are precluded from contractually waiving child support arrearages. (Id. at p. 1213.) In Sabine & Toshio, the child in question was a minor; no case since has extended this prohibition to children who are now the age of majority. Here, we hold that parents are precluded from contractually waiving or forgiving past due child support arrearages even after the child has reached the age of majority and there is no longer a current support order in place."

Makes sense. Especially here. Husband and Wife get divorced, and have four kids: "ages 5, 9, 10, and 12 years old." Husband is ordered to pay child support, and Husband "made some payments, but failed to fully comply with the trial court’s orders. He was declared a contemptuous litigant because he “made no reasonable efforts to support his children.” Lewis “terminated his job in September 2000 and moved to Utah to avoid payment of support.” In 2002, a bench warrant was issued for Lewis’s arrest. Lewis later moved out of the United States. He made infrequent payments thereafter."

Okay. We obviously want to spank that guy.

Two decades later, Husband wants to strike a deal with Wife (maybe so he can come back to the U.S. and get a job?) about the overdue child support. After lots of negotiating, they agree to split what's owed, and Husband pays $272,500, with the final payment in 2021.

All done, right?

No. As one might expect from the opening paragraph of today's opinion.

The Court of Appeal holds that he still owes the additional quarter-million plus. We're not going to enforce the settlement.

Which is fine, right? Husband's got to pay the whole thing. Like he should have in the beginning.

The only downside, in my view, is that this radically reduces the incentive for spouses like this to come back in the first place. Sure, if they do, in fact, return, you can potentially get one hundred cents on the dollar.

But if that's the law, the number of former spouses willing to say "Screw it, I'll just continue with my existing life and pay nothing at all" necessarily increases. Meaning less, rather than more, money for their children (and former spouse).

It's like if you prohibited all settlement agreements in civil lawsuits. Sure, you'd get more "justice" since everyone now gets fully compensated if they prevail at trial, rather than having to accept pennies on the dollar.

It's just that some of them would now get absolutely nothing. Which, amongst other reasons, is why we don't have that rule.

Esparza v. Superior Court (Cal. Ct. App. - Feb. 5, 2026)

I understand the facial appeal, I guess, but I still can't believe that the trial court got this one wrong.

Defendant is accused of kidnapping his adult fiancée and taking her to Mexico. At his preliminary hearing, he subpoenas to testify in his defense. Presumably to say, inter alia, that she went with him voluntarily and of her own accord, which strikes me as typically a pretty good defense in these types of cases.

The trial court, however, quashes the subpoena and refuses to allow her to testify. Holding that because she's been temporarily institutionalized under the Lanterman-Petris-Short (LPS) Act since she's unable to provide for herself, that finding categorically means she's incompetent to testify.

Unlike most of the cases I discuss, I don't really have anything to say other than what Justice Fields writes in his opinion. But I just wanted to emphasize it, because its truth seems so obviously clear to me.

Just because someone is "unable to provide for [their] basic personal needs of food, clothing, and/or shelter" -- or even if they're not able to make their own rational medical decisions -- and thus properly appointed a guardian under the LPS Act in no way, shape or form necessarily mean that they are also "incapable of understanding the duty to tell the truth" such that they are incompetent to testify under the California Evidence Code.

Far from it. Many people who can't care for themselves, or make critical medical decisions, due to a particular mental disability are nonetheless quite capable of understanding the difference between a truth and a lie. The former is not coextensive with the latter.

It may well be that, at the preliminary hearing, the content or manner of expression of the fiancée's testimony will be found to be uncredible, or disorganized, or subject to impeachment. Indeed, were the trial court to examine the witness and, upon examination, discover that, yes, this particular witness was so mentally challenged that she did not, in fact, know what it means to tell (what she believed to be) the truth, then perhaps that particular disability is so strong that this particular witness is incompetent to testify.

But as a categorical rule? No way.

And, as a general matter, geeze. It's an incredibly serious charge -- kidnapping. I can't fathom that it's not affirmatively critical that the judge (and, ultimately, jury) hear what the alleged victim has to say. Maybe they'll believe her when she says (if she does) that it was consensual. Maybe they won't. Or, maybe, if the disability is super serious, they'll conclude in a particular case that she was so disabled that she wasn't capable of effective consent anyway.

But let her testify.

Before reading today's opinion, I would have thought that would have been clear to everyone.

Given the trial court's contrary ruling, however: Apparently not.

People v. Gomez (Cal. Ct. App. - Feb. 4, 2026)

The Court of Appeal publishes this opinion to confirm, amongst other things, that comparing the criminal defendant to a dog at trial is apparently sometimes a compliment.

Harris v. Muhammad (9th Cir. - Feb. 4, 2026)

Wait. What is this?! The Ninth Circuit expressly holds today -- albeit in dicta -- that I'm not permitted to join the "Church of Surf ‘n’ Turf" and thereby obtain "luxury lobster and steak dinners" in prison?! (Page 14)

You bastards.

Parsonage v. Wal-Mart Associates, Inc. (Cal. Ct. App. - Feb. 4, 2026)

This seems a pretty successful business model, actually.

Find companies who commit technical violations of California's background check law (which the Court of Appeal correctly notes may perhaps "be 'technical violations,' [but] they are violations nonetheless"), find 141 clients and file individual lawsuits on behalf of each, and obtain the $10,000 minimum statutory damages for each of them. As well as, pursuant to that same statute, attorney's fees and costs.

That's a fair chunk of change.

The Court of Appeal says that the strategy works. At least here, and at least with respect to standing. In California, at least (unlike federal courts), there's no "case and controversy" requirement, so pure statutory standing works.

Nice work if you can get it.

Higginson v. Kia Motors, Inc. (Cal. Ct. App. - Feb. 3, 2026)

Check out this Song-Beverly (i.e., automobile "lemon law") opinion from the 4/1, which the Court of Appeal decides today to publish. At least if you have the wherewithal to peruse all 67 pages, which includes the dissent by Justice O'Rourke.

Talk about a "poop show," eh? (I'm deliberately using family-friendly words.) Both on appeal and, in particular, in both the discovery as well as trial phases of the lawsuit.

What a mess.

One that now gets to be relitigated on remand.

Nevellier v. Putnam (Cal. Ct. App. - Feb. 2, 2026)

Hat tip: If you're representing someone on appeal, know the appellate rules. Otherwise this might happen.

Justice Chou explains the situation fairly clearly at the outset of his opinion:

"Our local rules require that all parties promptly notify us about a bankruptcy that could affect our ability to decide an appeal. Despite this requirement, the parties in this case waited over four months after the filing of a bankruptcy petition by plaintiff Navellier and Associates, Inc. (NAI) and just two days before oral argument to tell us about that petition. Exacerbating the potential consequences of this delay, plaintiffs Louis Navellier and NAI now contend that the automatic bankruptcy stay precludes us from deciding this appeal. (11 U.S.C. § 362(a)(1).) If plaintiffs are correct, then the parties’ failure to provide timely notice of the bankruptcy would have caused this court to squander its valuable time and resources. Fortunately, plaintiffs are not correct because Navellier did not file for bankruptcy and because NAI, the debtor, brought this action. Although the harm to this court caused by the parties’ violation of our local rules is therefore minimized, this does not excuse their misconduct. Although we do not sanction the parties, we do admonish them and advise them to learn and follow our local rules in the future."

Not exactly something you want said about you in a published opinion, eh?

Want more details? Could you see it potentially happening to you? Here's a more robust explication of what went down, alongside the relevant rules -- with the italicized portions (all of 'em!) in the original:

"Under rule 21 of our local rules, “[a]ny party to a matter pending before this court who is aware of a bankruptcy that could cause or impose a stay of proceedings in this court must promptly give notice of such bankruptcy.” (Ct. App., First Dist., Local Rules of Ct., rule 21(a), italics added.) That notice “shall include (1) a copy of the most recent order of the bankruptcy court and of any stay order issued by that court and (2) an explanation of whether a stay order or an automatic stay is in effect and why the stay applies to the pending appeal or writ proceeding.” (Rule 21(b), italics added.) Despite these requirements, no party in this case complied with rule 21. Fortunately, however, the automatic bankruptcy stay (11 U.S.C. § 362(a)(1)) does not preclude us from disposing of this appeal; thereby, mitigating much of the harm that could have resulted from the parties’ dereliction of their professional duties.

NAI filed its bankruptcy petition on September 5, 2025. Plaintiffs’ counsel admitted at oral argument that he knew about the petition soon after NAI filed it and well before he filed the reply brief on October 27, 2025. Despite this, he waited until January 20, 2026, two days before oral argument, to notify us about NAI’s bankruptcy. And when he did so, he did not comply with rule 21(b). Instead, he only provided us with the information required by that rule after we ordered him to do so. At oral argument, Plaintiffs’ counsel pled ignorance of rule 21 and his initial belief, based on the purportedly faulty advice of bankruptcy counsel, that NAI’s bankruptcy did not stay this appeal. But neither excuse absolves him.

First, “[a]s an officer of the court,” he “bore professional responsibility to be aware of and knowledgeable about local court rules.” (Massie v. AAR Western Skyways, Inc. (1992) 4 Cal.App.4th 405, 408.) 

Second, rule 21(a) required the parties to provide notice of any bankruptcy that “could cause or impose a stay of” this appeal. (Italics added.) Thus, the parties had to provide this court with notice of NAI’s bankruptcy if there was any possibility, however remote, that it stayed this appeal. (See Dictionary.com (2026) [as of February 2, 2026] [“could” is “used to express possibility”].) As evidenced by plaintiffs’ claim at oral argument that NAI’s bankruptcy did stay this appeal due to defendants’ claim for prevailing party attorney fees, that possibility undoubtedly existed here. . . .

Defendants’ counsel also acquitted themselves poorly. After some prodding at oral argument, Grail’s counsel eventually admitted that he learned about NAI’s bankruptcy a couple of months before oral argument. In an apparent attempt to justify his failure to comply with rule 21, he also proffered one of the inadequate excuses proffered by plaintiffs’ counsel: that he believed, after consulting with a bankruptcy attorney, that the automatic bankruptcy stay did not affect this appeal."

Yikes.

That said, Justice Chou's opinion also makes clear what one should do when one has made a mistake like this:

Fess up. Which the lawyers did here, and which is the only thing that saved them from sanction (or even stronger vitriol):

"To their credit, all counsel did, for the most part, accept responsibility for the parties’ failure to comply with rule 21. For this reason, we decline to impose any sanctions at this time. (But see Keitel v. Heubel (2002) 103 Cal.App.4th 324, 340 (Keitel) [imposing sanctions due in part to the parties’ failure to notify the court about a bankruptcy in violation of a local rule].) Instead, we admonish counsel to comply with our local rules in the future and to “promptly” notify us if a bankruptcy petition has been filed by one of the parties so we do not waste our limited time and resources. (Rule 21(a).) Indeed, even though we, as explained below, may resolve this appeal notwithstanding NAI’s bankruptcy, the parties’ failure to promptly notify us about that bankruptcy still forced us to issue orders that should not have been necessary and to waste time and resources discussing their failure to comply with rule 21 at oral argument and in this opinion."

If didn't know it already: The Court of Appeal does not like surprises right before oral argument, nor is it at all interested in having its time wasted writing a draft opinion that's potentially mooted by events that everyone other than the justices knew about long ago.