U.S. v. Sanchez (9th Cir. - June 18, 2025)

There are some immigration cases where the petitioner is fairly sympathetic. Other cases tug less on one's heartstrings.

Here, Eliel Nunez Sanchez was brought to the United States by his parents without inspection when he was a child. So he's an undocumented alien, which typically puts him somewhat on the "sympathetic" side of the equation.

Then, when he is 20 years old, he's "convicted of possession of a controlled substance (methamphetamine) while armed and was sentenced to nine months in jail." Somewhat less sympathy there. 

Then, four years later, he's "arrested for possession of a controlled substance (methamphetamine) for sale" and deported to Mexico. Again, as a repeat offender, albeit for a drug crime, somewhat less sympathy.

Then, "between 2010 and 2019, Nunez illegally reentered the United States eight times and was deported seven times." Well, shucks. I totally understand why he'd want to remain in the United States. But there's not a ton of tugging on the heartstrings here.

Finally, "in February 2020, a grand jury in the Central District of California charged Nunez with illegally reentering the United States after having previously been subject to an order of exclusion, deportation, or removal" and sentenced to two years in prison. He appeals the conviction, but loses both below and in the Ninth Circuit.

Maybe he'll stay in Mexico at this point. Perhaps not. Time will tell.

Lemus-Escobar v. Bondi (Cal. Ct. App. - June 16, 2025)

Rene Lemus-Escobar applied for asylum in 1992 and has been in the midst of immigration proceedings for the past 33 years.

That's a long time.

Brown v. Attorney General (9th Cir. - June 12, 2025)

The middle of today's Ninth Circuit opinion contains the following passage:

"What happened goes beyond prosaic misconduct. The jurors did not merely crowd together or shuffle by interested parties. See Godoy, 861 F.3d at 967. They invited a witness and her friend onto the elevator during trial, promised not to tell anyone about it, and allowed the women to openly converse. And not just any witness—Gallon was the sole codefendant whose testimony the prosecution considered important enough to cut a deal for. Gallon was silent in the elevator, but the friend encouraged the jurors to believe Gallon and rely on the video evidence. Most jurors failed to report the incident as required by the court. Not ideal."

Nicely put. And I love the last sentence.

The Ninth Circuit nonetheless affirms the dismissal of defendant's habeas petition as harmless error.

P.S. - The author of the opinion is Judge Brown, sitting by designation from the Southern District of Texas. As the caption reveals, the defendant's last name is "Brown" as well. Which made me wonder whether there's any statistical difference in results on appeal when, as here, the authoring's judge's last name is the same as the defendant's (or when someone with that same last name is on the panel). 

Maybe someone will run the data and write a law review article about that same day. (Won't be me, though.)

De Souza Silva v. Bondi (9th Cir. - June 11, 2025)

You read about a fair number of religions when you peruse the various appellate opinions. Most of them are familiar, but on occasion, you learn something new.

Today, in this Ninth Circuit asylum opinion, I learned about a religion I had never heard about before: Candomblé.

The opinion contains some various facts about the religion, and there's an expansive Wikipedia page about it. Apparently a non-trivial number of people in Brazil are members.

Interesting stuff.

State of Alaska v. Federal Subsistence Board (9th Cir. - June 2, 2025)

During COVID-19, it was more difficult for the Kake Tribe, which is located in rural Alaska, to get sufficient food to eat. So, pursuant to federal law, it applied to the Federal Subsistence Board -- an entity that I did not heretofore knew existed -- to hunt a couple of moose and some deer to eat.

After a public hearing in June of 2020, the Board said that was fine; the Tribe sent out some hunters, who found and killed two antlered bull moose and five male Sitka black-tailed deer; and the Tribe distributed the resulting meat to 135 families.

There you have it. Seemingly straightforward.

Except, of course, for the resulting lawsuit.

Which lasts way, way longer.

Alaska then sues the federal Board, saying that the hunt shouldn't have been allowed. The Tribe intervenes. Alaska loses in the district court. Alaska appeals to the Ninth Circuit. The Ninth Circuit partially reverses and remands. The district court on remand then finds again for the Board. Alaska files another appeal to the Ninth Circuit. And, on appeal, the Ninth Circuit now finds against Alaska (again), though also finds that the district court lacked jurisdiction in part.

That's a whole lot of litigation. Involving two taxpayer-funded entities: Alaska versus the United States government.

Over two moose and five deer. Who are already dead.

I can probably think of better uses of taxpayer funds. Especially since the hunt arose from a pandemic that -- knock on wood -- isn't going to happen again anytime soon.

People v. Nixon (Cal. Ct. App. - June 5, 2025)

It just seems to me a horribly bad idea -- both practically and legally -- to post on your Facebook page "a picture of three Elk Grove Police Department officers with crosshairs superimposed over the faces of two of the officers . . . . accompanied by the words: 'Fuck both of these bitch ass cops and the Elk Grove Police Department. I hope both of you scum bags are killed in the line of duty and your family members are BRUTALLY murdered."

I would think that criminally threatening the police might, just might, get their attention.

And it's even worse when you make these threats while you're on active community supervision after being released from jail for carrying a concealed weapon in a vehicle, carrying a loaded firearm, perjury, and unlawfully possessing ammunition.

That'll get you a couple of extra years in prison.

Plus taking away all your social media accounts.

People v. Porter (Cal. Ct. App. - June 5, 2025)

Most readers have probably violated this California statute. I know that I have. (In my defense, extraordinarily rarely.)

So it's probably good to at least know what the rule is.

Section 23123.5(a) of the Vehicle Code prohibits drivers from “holding and operating” a handheld wireless telephone unless you're do so in a voice-operated and handsfree manner.

So here's the question on which courts have stridently disagreed:

Is it illegal to hold a cell phone in your left (or right) hand and look at it while driving in order to follow directions?

Nathaniel Porter was doing just -- looking at the map on the cell phone -- and got a ticket for $158. He filed an appeal with the Appellate Division, which reversed, holding that it doesn't count as "operating" the cell phone if you're just looking at it. The Court of Appeal then took up the case.

And now reverses.

The Court of Appeal holds that under the plain meaning of the term, you're "operating" a cell phone when it's powered on and you're looking at it. The statute isn't just limited to typing or clicking on the thing. The Court of Appeal backs up that holding with policy concerns, arguing -- factually correctly, I believe -- that if you're looking down at your cell phone while driving, that's distracted driving, and it's dangerous, even if you're not constantly swiping or texting on the thing.

That's the argument for the Court of Appeal's holding. Which is eminently understandable.

The best argument to the contrary, I think, comes from subsection (c) of the same statute. Which expressly allows you to use a cell phone while driving if it's mounted to the dashboard and only requires a single swipe or tap to operate.

So if you can swipe or tap while looking at a cell phone on your dashboard, why can't you do less than that -- merely look -- while the cell phone's in your hand?

I can see an argument in response. Albeit one that's not in the opinion. Maybe it's more dangerous to look down at your cell phone than it is to look at a cell phone on your dashboard. (I suspect that's true.) So maybe the Legislature drew that distinction.

Though if you're holding your cell phone up on the dashboard while you're looking at it, maybe the two are equivalent. (Though you still lack the maximal use of your second hand on the steering wheel if you're holding the cell phone in your hand while you look at it.)

Anyway, here's the rule:

No looking at a map on your cell phone while you're holding it in your hand.

(Though it seems fine to look at that same map on your cell phone while the phone rests on the console or in the passenger seat. Go figure.)

Add this holding to your prior knowledge of California Ticket Law.

Animal Protection & Rescue League v. County of Riverside (Cal. Ct. App. - June 4, 2025)

A pro-animal rights group protests a pet store in a Temecula shopping mall because the store allegedly buys its dogs from a puppy mill. Mall officials ask them to leave because the table set aside for protests had allegedly been "reserved by another group." The protesters refuse to leave, the cops are called, and then, according to one of the protesters, the police "'threatened [her] with arrest' if she did not leave the area. Davies [the protester] asked Leso [the officer] to “write her a ticket that she could fight in court” but Leso informed her 'that he would not cite and release her if she did not leave, but rather would arrest her and take her to jail.' Davies and the other protestors then left the area."

The protesters then sue, claiming that their rights were violated when the police illegally forced them to leave the property by threatening them with arrest. The trial court then granted summary judgment to the defendants on the ground that the officer "never told Davies that she would be booked into jail, or that she would be arrested, or that she was in violation of any law." The Court of Appeal affirms.

But I gotta tell you, that's not the way I read the facts, and I think a lot of people -- reasonable people -- would agree with me on that one.

The officer had a body worn camera, so we know perfectly well what the officer said. He first told the protester that mall security told them to leave, and if they didn't do so voluntarily:

“You’ll be ejected for the day” since “it’s their property [so] they’re allowed to do that [and] we don’t want to get into any trespassing issues here . . . because if a private place tells you to leave . . . then refusal to do so is 602.1(a) of the Penal Code."

Does that sound like a threat to arrest someone if they don't leave? It certainly sounds like it to me.

But it gets even clearer. The protester then asks the officer: “Is there any way you could issue me a ticket?” (She adds: "The only reason why I would like a ticket is just to show that we did not want to leave.”) Here's the officer's response:

“No because . . . there’s no issues here. If you refuse to leave and they want to press charges . . . you’ll just get booked into jail for it with a citation."

Uh, that fairly clearly sounds like a threat to arrest someone. The whole "you'll just get booked into jail" thing seems pretty unambiguous, no?

I understand that, after the lawsuit is filed, the County of Riverside's litigation position was that it's not their regular policy to threaten to arrest people for legally protesting in shopping malls, and that “[t]he Department does not contend that if a mall owner or manager does not want expressive activity taking place in certain, publicly-accessible part of the mall, that Deputies can lawfully arrest peaceful protestors who remain there for not complying with the mall’s rules.”

But I think a reasonable factfinder could conclude that, at least here, the individual officer did indeed think that it was legal, and proper policy, to threaten to arrest someone in precisely such a setting.

So it seems to me that there's an actual controversy here. Defendant's policy may be X, but when the Defendant does the opposite of X, that's a legitimate dispute -- and lawsuit.

And I think that the officer did indeed threaten to arrest the person.

Indeed, did so fairly unambiguously.

Hubbard v. City of San Diego (9th Cir. - June 4, 2025)

Today's Ninth Circuit opinion arose across the street from my home.

A group of yoga instructors teach yoga for "free" (they accept donations, and most people contribute) on the beach -- specifically, Sunset Cliffs -- in San Diego. Typically, 30-60 people participate. The good thing about doing it on the beach, apart (of course) from the fantastic view, is that it doesn't cost the instructors anything, as opposed to having a yoga studio.

The City of San Diego didn't like that, so last year, passed an ordinance that said you can't do that, and started enforcing it. The yoga teachers sued and moved for a preliminary injunction, but lost.

Today, the Ninth Circuit reverses, holding that yoga's an expressive activity and that the ordinance is unconstitutionally content-based because it disallows (inter alia) yoga while allowing other types of expressive activity (e.g., teaching Shakespeare) on the beach.

So come on down. Free beach yoga. In a very pretty spot.

P.S. - It seems to me that the City could probably accomplish its desired objectives by instead imposing a "tax" on any expressive activities on the beach. Just say that any "donations" solicited in a public park on the beach are subject to City tax of 90% or so. Sure, there might be some enforcement difficulties. But I suspect that as long as it was content neutral, and applied to all expressive activities (very few of which request donations), that would probably survive constitutional scrutiny.

People v. Emanuel (Cal. Supreme Ct. - June 2, 2025)

You can readily understand from the underlying evidence why the California Supreme Court unanimously holds today that there was insufficient evidence that Louis Emanuel was recklessly indifferent to human life sufficient to find him guilty of first degree murder. He wasn't the shooter, and even the trial court found that he didn't know that his accomplice was bringing a gun to the robbery or planned to kill anyone.

Okay. Fair enough.

But I couldn't help but notice that the only real testimony here came from the defendant and those who have ample reason to assist him (e.g., his girlfriend). That's one big advantage of killing someone: You're typically the only ones left to explain what exactly went down during the robbery.

Here, for example, Mr. Emanuel and his accomplice met in a public park to buy a pound of marijuana. Now, that could just be a classic buy; no large risk to human life there. (Though probably not zero.)

But the buyers sua sponte offered to buy the week for $2200, even though everyone knew that the market rate was $1800. No explanation for why they made an above-market offer without even negotiating. And as far as I can tell from the opinion, there was no evidence that the buyers actually brought any cash. Plus, after the murder, Mr. Emanuel allegedly told his girlfriend that the seller wouldn't "give it up" and, as a result, was shot.

Doesn't that potentially lead one to believe that Mr. Emanuel and his accomplice had actually planned on robbing the seller from the outset? (I couldn't find any evidence that the robbery was just a spontaneous decision on the part of the accomplice, as opposed to planned.) And if the robbery was indeed planned, it seems fairly obvious that the planning involved a weapon, since very few people likely give up a pound of weed based upon a mere verbal entreaty to do so.

So, sure, Mr. Emanuel says that he had no idea that his accomplice had a weapon, that the victim (Mr. Sonenberg) struggled for control of the weapon, and that the accomplice "aimed the gun at Sonenberg’s leg, but Sonenberg pushed it up" which is why the bullet hit Sonenberg's neck and killed him. 

But what do you expect Mr. Emanuel to say? Mr. Sonenberg's not exactly there to contradict him. And his girlfriend only knows what Mr. Emanuel told her. That's the upside of killing the sole eyewitness to the crime. (Except, of course, for the actual shooter, but he hardly has reason to dispute your version of events.)

I'm not saying that it's clear beyond a reasonable doubt that Mr. Emanuel knew that there was a gun and that, as a result, he's guilty of first degree murder.

But a legal principle under which it makes a fair bit of difference whether the victim is left alive or not is probably one with some serious adverse incentive effects.

In re D.B. (Cal. Ct. App. - May 28, 2025)

It's indeed unfortunate. But I have to agree with Justice Greenwood. In a juvenile dependency case, where the issue is whether a 17-year old child should be taken away from the custody of her mother, if the facts demonstrate that the child is indeed assaulting and threatening the mother, then, yes, the trial court has the power to enter a restraining order against the child.

(To be clear: I'm not saying it's unfortunate that I agree with Justice Greenwood. That's utterly fine. It's instead that the facts of the underlying case are indeed unfortunate.)

It's a disaster of a fact pattern. The father is incarcerated and has a substance abuse problem. The mother allegedly has a history of substance abuse and mental health issues. There are serious allegations that the mother consistently demeaned and occasionally physically abused then daughter. And then daughter got pregnant and had her own child. At 15. Daughter and mother continued to not get along, daughter and her own daughter lived with mother, mother allegedly failed to take care of granddaughter when daughter was not doing so, daughter "stated she cut herself and smoked marijuana, behaviors which Mother knew of but did not address," daughter gets taken out of the house and placed in a housing center at which she allegedly "made threats to kill another child at the housing center, refused to comply with the staff’s instruction, and left her placement," daughter eventually gets her own daughter taken away from her by the court, daughter allegedly sends a Google Maps picture of mother's house to mother showing it in flames, etc. etc. etc.

Ugh.

Travelers Indemnity Corp. v. WCAB (Cal. Ct. App. - May 28, 2025)

Are there many published appellate opinions involving former major league baseball players seeking workers' compensation benefits? I doubt it. But here's one.

The player -- George Zeber -- didn't have a lot of years with the Yankees; he primarily backed up Willie Randolph. Still. He was in the major leagues. No small feat.

(Oh, and before his playing days, he was drafted and deployed in Vietnam. I bet there aren't many players who fit that particular bill.)

Thomas v. Corbyn Rest. Group (Cal. Ct. App. - May 27, 2025)

I like the scam. Learn about a half million dollar settlement somehow, then spoof a series of emails to counsel for defendant -- here, Tyson & Mendes -- to get 'em to wire the check to a bogus account rather than to plaintiff.

Well played, scammers.

I also think that Justice Rubin and the trial court are both spot on. The fault here belongs to defendant, which is the party who was best in a position not to be scammed. So they -- or, more likely, their counsel (or its insurance company) -- has to pay the missing $475,000.

Again. This time, to the actual plaintiff, rather than a scammer.

U.S. v. Greene (9th Cir. - May 23, 2025)

Namir Greene gets sentenced to 10 years in prison for robbing a convenience store and a gas station during a three week period, but the Ninth Circuit finds plain error and remands for resentencing.

On Mr. Greene's side, the ten year sentence does seem quite a bit harsh, and Judge Christen's opinion explains that Mr. Greene had "promising high school academic performance and strong family support" plus acceptance of responsibility etc. I'm also not exactly sure why robbing a Shell station with a BB gun somehow persuaded the feds to get involved and charge the guy with a Hobbs Act violation. Usually this kinda stuff -- even with a carjacking -- is left to state courts, no?

On the other hand, while Judge Christen mentions a lot of things favorable to Mr. Greene, I did notice that he had a criminal history score of II -- though nowhere in the opinion is there any explanation of any prior criminal history. Maybe there's more at play here than meets the eye.

U.S. v. Watson (9th Cir. - May 23, 2025)

Yeah, I'm sure that a dealer who buys $15,000 of fentanyl a week is precisely the type of guy who can understand during the midst of a probation search with his probation officer there that while he's required to be truthful and cooperate with his probation officer, he's nonetheless free to decline to talk to a police officer.

Because most fentanyl dealers have graduated from really good law schools.

People v. Mathis (Cal. Ct. App. - May 21, 2025)

It doesn't matter what you've done, or why you don't want the police to stop you. Don't speed away in your car. Especially if your 16-year old cousin is in the vehicle with you.

And, if you do, and subsequently run a right light and slam into a utility pole, don't leave your 16-year old cousin in the burning vehicle to die.

Otherwise you'll likely receive a lengthy prison sentence.

Not worth it.

On many levels.

Mae M. v. Komrosky (Cal. Ct. App. - May 19, 2025)

The Temecula Valley Unified School District passed a rule that prohibits teacher from teaching a variety of doctrines ostensibly derived from critical race theory; for example, that "the preservation of slavery was a material motive for independence from England." Various students and groups filed suit, claiming that the rule was impermissibly vague. The trial court refused to grant a preliminary injunction, and the Court of Appeal reversed, holding that the rules were, indeed, unconstitutionally vague.

The opinion by Justice O'Leary is worth reading in its entirety, but one portion was particularly illuminating -- or, perhaps, cringe-worthy. 

There was a fair amount of discussion in the opinion and at oral argument about whether a teacher might face discipline for talking about Jim Crow-era laws; for example, "[i]f a teacher of color shares a personal anecdote exemplifying modern ramifications of the Jim Crow era, could they be disciplined for teaching that “merely ‘minority status . . . brings with it a presumed competence to speak about race and racism’”? This led to the following discussion in the opinion:

"In their appellate briefing, Defendants state that “[t]he Resolution does not ban discussions on slavery, historical figures (i.e., Jim Crow), or the human rights issues concerning such topics.” . . . . We find this confusing because Jim Crow was not a “historical figure,” but a pejorative term referring to a Black man, derived from a musical caricature of a Black man played by a white man in blackface. [Footnote:] Despite discussing Jim Crow in Defendants’ appellate briefing, Defendants’ appellate counsel stated at oral argument that she believed Jim Crow was 'a civil rights individual.'"

Yikes. When you're a lawyer who's arguing in the Court of Appeal that education about Jim Crow laws should be more limited, it's probably fairly damaging to reveal that you don't even know yourself what "Jim Crow" entails. "A civil rights individual" indeed.

Defendants' counsel at oral argument was Julianne Fleischer of the Advocates for Faith and Freedom, an honors graduate from the Regent University School of Law.

Beasley v. Superior Court (Cal. App. Div. - May 19, 2025)

Traffic ticket law. An underappreciated field. You rarely get published opinions in the area, and when you do, as here, they're usually from the Appellate Division.

But they're interesting. Plus, it's perhaps the most common arena in which people come into contact with the California justice system.

The question in this one is actually fairly straightforward. When you receive a traffic ticket, the officer generally writes (gives you a copy of) the ticket on a standard form prepared by the Judicial Council. If you want to plead guilty (or nolo contendre) and pay the fine, that's great, you can do so. No problem.

But there's a statute -- Section 40513(b) of the Vehicle Code -- that says that if plead not guilty, the case against you (i.e., the traffic ticket) can go to trial only if the traffic ticket "has been prepared on a form approved by the Judicial Council." Otherwise, if it's not, the prosecutor is required to file a traditional complaint against you in order to actually create jurisdiction.

So the question is this: What does Section 40513(b) mean when it says "prepared on a form approved by the Judicial Council?" Does it mean currently approved by the Judicial Council? Or does it instead mean ever approved by the Judicial Council?

If, as here, the officer writes you a ticket on an old form -- one that's been superseded -- does that qualify under Section 40513(b), or not?

Now, for me, taking the words of the statute at their face value, I would think that the statute means that the form has to be the current form, not one from a while back. If the Legislature cared enough to require that traffic tickets be on forms approved by the Judicial Council, they presumably wanted the current form used, not one back from the 1920s or so.

The Appellate Division, however, holds otherwise. Old forms are fine. At least when, as here, the differences aren't material. (Which, in truth, they'll probably never be.)

You can see why the Appellate Division might well come out that way. We generally don't care that much these days about the forms of pleading. As long as you get notice, we're generally cool with that. And we don't want to let people off traffic tickets just because officers aren't keeping their form books updated. We want the speeding public to be found guilty and such. Hence the holding here.

Still, I wonder just how far this reasoning goes. Is it really true that forms from the 1920s can be used, since they were, after all, at some point approved by the Judicial Council? The Appellate Division says it's not deciding that question, which I appreciate, but the question nonetheless remains.

Plus, there are other statutes and rules on the books that seem analogous. To take but one example I found, Rule 1.35(a) says that the Clerk is required to file (e.g., has no discretion to reject) "[f]orms approved by the Judicial Council for optional use." Clerks nonetheless routinely reject filings that are on old versions of the Judicial Council forms. Does today's opinion mean that's now impermissible? The words of the relevant provisions are pretty much identical, after all: those old versions were indeed "approved by the Judicial Council." Do Clerks now need to accept even old forms from the 1920s, or decide for themselves whether the variances are "material" or not?

Seems like an interesting issue. One that I bet comes up in practice pretty much every day.

To be determined.

Woodland v. Hill (9th Cir. - May 16, 2025)

Want to check out a variety of full color photographs of nearly-nude men in a Ninth Circuit opinion?

Judge Lee provides.

Yelp v. Paxton (9th Cir. - May 15, 2025)

Today's Ninth Circuit opinion narrowly interprets the "bad faith" exception to Younger abstention. Judge Bress makes decent arguments for doing so, and is able to distinguish precedent in a manner that's rational (even though other judges might well come out the other way).

As I read the opinion, though, I couldn't help wondering if the opinion would have been different if an alternative hot-button topic was at issue.

Here, it's Texas Attorney General Ken Paxton filing a civil enforcement action against Yelp for putting disclaimers on various "Crisis Pregnancy Centers" on its site that (arguably) pretend to be abortion providers but are actually anti-abortion advocates. I have no doubt that Paxton filed this action in order to demonstrate his anti-abortion credentials, and arguably in retaliation for Yelp's (arguably) pro-abortion stand. That's basically Yelp's "bad faith" argument against Younger abstention.

Judge Bress holds that this exception doesn't apply, and narrows it almost out of existence. (I thought as I read the opinion that everything looks easier in hindsight. For example, Judge Bress distinguishes a prior exception -- an Eighth Circuit case in which the exception applied when a Black criminal defense attorney was charged with bribing a witness in Arkansas, arguably in retaliation for his advocacy on behalf of his client -- due to the "pervasive racism and discriminatory treatment of blacks" in the area. True enough, I suspect. But the guy did pay $500 to the victim's family to get the charges dropped. And I'll bet dollars to donuts that the prosecutor there made virtually the identical arguments that Paxton's making here -- that he was neutral, that state resources were limited, that he charged anyone under identical facts, etc. Yet the bad faith exception applied there, but not here.)

Would the panel have written the opinion the same way if, say, Hawaii's Attorney General had filed a high-profile civil enforcement action against the National Rifle Association, or against the National Right to Life Committee? Maybe. Maybe not.

Regardless, under today's opinion, it's hard to think of a real-world example of where the bad faith exception would actually apply.

People v. Hinojos (Cal. Ct. App. - May 12, 2025)

If you want someone killed in prison, I gotta admit, it seems like a pretty good business model to get someone who's already serving a life sentence in that prison to do it for you.

That doesn't mean it's ethical or moral, obviously. Clearly it's not.

But still. Seems like a sound plan.

(Assuming you don't get nailed for conspiracy, of course.)

I also learned something else reading this opinion. I didn't know that the Mexican Mafia's "tax" on illegal operations in prison was one-third. Seems steep. 

I also wonder if that tax is gross or net. Say I pay a guard $600 to smuggle a cell phone into prison and sell it to another prisoner for $900. Do I owe $300 tax, or only $100?

The former would seem fairly inimical to entrepreneurship, no?

Hofer v. Boladian (Cal. Ct. App. - May 9, 2025)

Sometimes the introduction to the opinion (helpfully) says pretty much everything you need to know:

"In this case, the litigants seeking to compel arbitration initiated this lawsuit by filing a complaint in court and, while in the judicial forum, sought two forms of preliminary injunctive relief, opposed a demurrer, propounded more than 700 discovery requests, demanded a jury trial in their case management conference statement and represented they would be litigating substantive motions, and posted jury fees. It was not until the opposing party filed a cross-complaint that the litigants filed the motion to compel arbitration—more than six months into the litigation in court. Does the litigants’ conduct in this case constitute a waiver [of arbitration]? We conclude it does, and affirm the trial court’s order denying the motion to compel."

Thanks for that, Justice Hoffstadt.

Sanders v. Superior Court (Cal. Ct. App. - May 6, 2025)

As God is my witness, I not understand why defense counsel sometimes fail to pay arbitration fees the day the invoice comes in.

It's not strategic behavior. CCP 1281.98 says that you waive arbitration in employment and consumer cases if the party that drafted the arbitration agreement fails to pay the fees within 30 days. The defendant here -- the brokerage firm Edward Jones & Co. -- successfully moved to compel arbitration, so it clearly wanted the arbitration to go forward. Yet when the $54,000 JAMS arbitration invoice came in, with an express statement that the bill was due upon receipt, it didn't pay the thing until JAMS sent a reminder 34 days later. (Despite paying the two prior JAMS invoices when due.)

That's too late. Arbitration waived.

To reiterate: Just pay the thing. Immediately. It's important. Really important.

People v. Oyler (Cal. Supreme Ct. - May 5, 2025)

I'm not surprised that the jury found the defendant guilty here. He's definitely an arsonist who set at least several wildland fires. We're not excited about people who do that.

I am, however, somewhat surprised that the defendant was sentenced to death.

He has no criminal history. There's no evidence that he intended to kill anyone; though, of course, there's always that risk. And the evidence that he started the one fire that killed the five firefighters -- the only one of the fires in which anyone was injured -- was very slim, in my mind. The guy might not even be guilty of that one; I think he probably is, but it's also possible that it was one of the many other people in this world who like to start similar wildfires. 

(I'm not persuaded that the device used to start this particular fire was really unique. It's a cigarette attached to a matchbook. I'm not a serial arsonist, and even I know that's exactly how to start these sorts of things. The fact that the matches here were sometimes wooden matches, and that the matches were sometimes pointed in both directions, is hardly novel; again, I'm a complete novice in this area, and I could easily see even myself constructing such a device.)

So you're talking about someone for whom there was no intent to kill, no criminal history, and residual doubt as to his guilt.

Look, I understand the reality. It's a wildfire in which five innocent firefighters were horribly burned and killed. People want retribution for that. Especially people, as here, in the vicinity of that fire. I get why the jury sentences him to death. As well as why the California Supreme Court affirms.

But of the many, many death penalty cases I've read, this one stands out to me as strongly on the low end of the "obviously should be killed" spectrum.

Read all 162 pages of the opinion if you'd like.

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

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

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

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

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

But I doubt it.

Four paragraphs. 367 words.

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

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

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

They almost made it.

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

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

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

Still might, of course.

But, for now, it stands.

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

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

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

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

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

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

Here's my take:

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

You can't just call in for a warrant?

Apparently not.

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

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

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

Get a warrant.

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

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

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

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

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

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

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

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

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

Irony indeed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again: Extremely well done by Justice Richman.

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

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

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

But here's the problem:

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

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

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

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

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

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

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

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

By a fair piece.