State of California v. Del Rosa (9th Cir. - Nov. 7, 2025)

It's rare to see the State of California as a plaintiff. But here, it sues a corporation that's owned by an Indian tribe, alongside some individual defendants, who are illegally selling cigarettes to non-tribal members without paying the required taxes -- all in violation of federal law.

Good for California, I say.

It's also stunning to see both how long this litigation has taken -- California first started its attempts to enforce federal law against the defendants back in 2018 -- as well as how powerless the federal courts have been in the underlying litigation. The district court entered a preliminary injunction in 2023, and the Ninth Circuit affirmed in 2024, and yet according to footnote five of today's opinion, here's how effective that injunction has been:

"Defendants apparently have not complied with the preliminary injunction. In February 2024, following a contempt motion by California, the district court found that California “provided evidence showing Azuma has continued to deliver cigarettes on its own behalf” “to the same customers previously identified in the preliminary injunction record.” Even after California filed for contempt, but before the district court ruled, Azuma “shipped an estimated additional 2.5 million cigarettes” in violation of the preliminary injunction. In February 2025, California filed a notice of violation that “the distribution of Azuma cigarettes ha[d] continued uninterrupted,” and that Azuma had distributed over 29 million cigarettes since February 2024."

Bold indeed.

Let's hope that future enforcement efforts are a bit more rigorous.

Coastal Environmental Rts. Found. v. Naples Rest. Group (9th Cir. - Nov. 5, 2025)

This is a fairly long opinion -- a couple of dozen single-spaced pages -- arising out of a fireworks display in which one of the fireworks failed to timely explode (and hence landed in, and thus marginally polluted, the water in the bay) and after which the defendant paid $3,576 for a permit. A lengthy litigation, multiple appeals, some district court factfinding, and ultimately a dismissal on grounds of mootness.

Lots of work for very little bang. (If you'll pardon the pun.)

On the upside, I thought that Judge Donato's concurrence (sitting by designation) was nice. He says:

"The new opinion replaces the original opinion from which I dissented. My view in the dissent was that the majority was rushing to declare the case moot without adequate support in the record, which I concluded was inconsistent with governing law. . . . The record has changed. . . . The district court determined that Naples “has continued to pay the annual fee for the NPDES permit” after receiving additional evidence on remand. The district court concluded that “it is absolutely clear that [Naples’s] discharge of pollutants without a permit is not reasonably likely to recur,” based on its review of the parties’ submissions on remand and the trial record. Because I see no clear error in these findings, I concur that this case is moot."

I like it when judges are willing to reconsider their position. In light of, as here, new evidence -- or even otherwise.

Valame v. Trump (9th Cir. - Nov. 4, 2025)

Why, exactly, are we publishing this opinion, which affirms in four brief paragraphs the dismissal of a frivolous pro se complaint?

I'm at a loss.

Cocoa A.J. Holdings v. Schneider (Cal. Ct. App. - Nov. 3, 2025)

I'm honestly not sure who to root for here. Do I root for the owner of a fractional timeshare in a condo complex near Ghirardelli Square who really, really likes to litigate against the condo association? Or do I root for the condo association, who seems equally committed to squashing that particular owner?

It's hard. Because I'm not really feeling a lot of love for either of them.

For now, though, the condo owner wins, as the Court of Appeal affirms the grant of his anti-SLAPP motion.

Hopefully the parties will at some point simply agree to separate peacefully.

It's not a great union.

People v. Guevara (Cal. Ct. App. - Oct. 31, 2025)

The Court of Appeal holds that defendant's attorney was constitutionally deficient for, among other things, not filing a brief for over a year and a half (despite numerous extensions), and on that basis reverses and remands. The Court also forwards its opinion to the State Bar. All of that makes sense when one reads the opinion.

But I wonder why the opinion -- presumably deliberately -- leaves out the name of defendant's attorney. It's definitely something I'd want to know. Particularly if I was a defendant who also had that lawyer represent me, or if I was thinking about retaining that lawyer currently.

An interesting omission.

People v. Sevilla (Cal. Ct. App. - Oct. 27, 2025)

Defendant has no criminal history, is a productive member of society and supports a family. He was nonetheless found guilty of voluntary manslaughter for the following facts. 

What sentence do you think he received -- or, alternatively (or in addition), what sentence do you think would be appropriate?

"In the early hours of November 6, 2020, Sevilla used his employer’s company truck to commute to work from his home in Oakland. In the truck, he carried a loaded .45 caliber semi-automatic handgun that he had purchased illegally. During the drive, he encountered a woman—the victim in this case—in an area he knew was frequented by prostitutes. The victim approached the truck at a traffic light, and she offered to engage in an unspecified sex act for money. Sevilla agreed. 

The victim got in the truck and directed Sevilla to drive to a nearby park. The victim texted someone throughout the drive. Once they arrived at the park, she continued to text, and then she asked for $200. According to Sevilla, he took out roughly $500 in cash from his pocket, and the victim pulled out a gun and demanded it all. After Sevilla surrendered his money, the woman got out of his truck, ran across the street, and got inside a car that was parked with the lights off. Surveillance video captured the victim jog across the street and enter the car, but it did not show what took place in the truck, nor did it show that she was carrying cash or a gun.

The two vehicles sat still for about two minutes until Sevilla decided to confront the occupants of the other car. He retrieved his handgun from under the passenger seat as he made a three-point turn, pulled up next to the car, and turned on his headlights. The driver of the car, Samuels, rolled down his window, and Sevilla partly lowered his window. Samuels then produced a large handgun.

Sevilla testified that, after a brief verbal exchange, Samuels fired at him. Sevilla said he felt two bullets go past his head and the truck window’s glass rain down on him. Sevilla further testified that, in response to being shot at, he “grabbed the firearm,” “racked the slide,” and “shot off two shots” “[t]owards the driver[,] [t]owards the car,” even though he “knew” both Samuels and the victim were only three to four feet away in the car.

The surveillance video captured the gunfight but did not resolve who fired first. Nor did the surveillance video capture what happened inside the two vehicles. The physical evidence showed that, in total, counting both of them, Sevilla and Samuels fired five to six shots from two different guns. 

Without checking to see if anyone had been hurt, Sevilla sped off and drove to work. He had, however, shot the victim in the head. Samuels drove her to the hospital where she later died."

In short, during a robbery, the robber and the victim get into a shootout and one of the robbers dies. The victim could have let the robber go, but doesn't. Both the robber and the victim shot at each other. What sentence for the victim of the robbery/perpetrator of the voluntary manslaughter?

Answer (at least in the present case) . . . .

Over 21 years in prison.

U.S. v. VanDyke (9th Cir. - Oct. 27, 2025)

It's a Second Amendment gun case in the Ninth Circuit, involving someone named VanDyke who was under a harassment no-contact order for repeatedly stalking his victim. VanDyke claimed, successfully in the district court, that the Second Amendment entitled him to have a weapon, including but not limited to bringing his handgun to the courthouse (which he did).

I know what you may be thinking. No. It's not that VanDyke.

This case involves Ryan VanDyke. From Idaho. Here's what he did:

"In May 2023, Ryan VanDyke walked into an Idaho state courthouse carrying a fully loaded Smith & Wesson .38 revolver. At the time, he was subject to a civil protection order and a no-contact order and faced a felony stalking charge—all because he had persistently ignored court orders to stay away from a woman who wanted to escape his prolonged harassment."

When I first read the caption, I knew it wasn't Judge VanDyke, since the defendant's first name was Ryan rather than Lawrence. I also immediately looked to see if Judge VanDyke wrote the opinion, or was on the panel. Nope.

The opinion is instead written by Judge McKeown. It reverses the district court, holding that the Second Amendment does not grant Mr. VanDyke the right to possess a weapon in this particular setting.

But I was kinda hoping to hear Judge VanDyke's views on this one.

If only because it's not a totally common name.

Gilbert v. 7-Eleven, Inc. (9th Cir. - Oct. 24, 2025)

I do not disagree with anything Judge Sung says in this opinion. Yes, the plaintiff here -- a disabled person -- deliberately visited the 7-11 store at issue with the express hope of finding obstacles that he could then file a lawsuit about. He'd be hard pressed to argue otherwise, since he's previously filed 70 other ADA lawsuits, and that's fairly clearly why he chose to visit this particular store. (Plus, he's currently deceased, so he'd be hard pressed to personally argue anything, but that's an entirely different mater.)

But that doesn't negate his lawsuit. The relevant statute doesn't say anything about the plaintiff's intent. Here, the plaintiff was, in fact, injured as a result of the barriers he faced. It made them more difficult to get around. That's all that's required. So he gets his statutory minimum $4,000 in damages.

(His lawyer, of course, gets a ton more, which is really what the economics of the lawsuit is all about. But that's a sub rosa issue doctrinally irrelevant to the current appeal.)

Again, everything that Judge Sung says is correct. Zero problem with it on my end.

Let me just nonetheless say two things.

First, to me, there's a serious tension between this doctrinal reality and the typical standing requirements. As a practical matter, the reason that intent doesn't matter under the relevant statutes is because we want disabled plaintiffs to root out the underlying evil (the lack of accommodations) even if discovering such obstacles and filing a lawsuit is what motivated the plaintiff to go out there in the first place. That's fine, of course. We do indeed want businesses to be accessible, which is why (1) we have the law, and (2) allow individuals to enforce by filing suit. The fact that this individual plaintiff encountered an obstacle solely because he went out looking for it doesn't matter. We want the law to be enforced, and if fee-motivated plaintiffs is one way in which that law gets enforced, so be it. We're fine with that.

But if that's the case -- and it undoubtedly is -- then why require an underlying injury at all? Why shouldn't a non-disabled person be able to sue as well? After all, they're a person, and they're equally able to spot, and file lawsuits, about non-accessible spaces. Why do we encourage only disabled people -- the ones with the least ability (oftentimes) to travel -- to motor around a city looking for these problems? Why not hold that everyone has standing to sue? (As we indeed do with, say, "testers" in housing discrimination suits.)

Second, I wonder if the better argument for the defendant in cases like this is a fair piece different from the one made by appellants here. Defendants' argument centers on claims that the plaintiff wasn't a "bona fide" customer and things like that. Arguments that the Ninth Circuit correctly rejects.

Perhaps a better argument would be to assert that plaintiffs like this one aren't actually "injured" by the underlying barrier. After all, they went looking for those barriers, and were hoping to find them. It's hard to argue that one suffers harm from something that one is actively seeking out and hoping to encounter. Indeed, the real injury would be if the plaintiff didn't discover a barrier. In such cases, their time and effort would be for naught. If you asked them: "How'd it go on your trip outside today?", if they didn't encounter an ADA violation, they'd honestly say "It sucked; a waste of time and money." Whereas if, as here, they did, they'd say "Fantastic: I found exactly what I hoped to fine, and that makes me happy." It's at least facially difficult to argue that one in fact suffers harm when one obtains precisely the thing that one desires. A kiss on the cheek is a harmful assault if that's not what you're looking for, whereas it's not an injury at all if that's how you hoped the evening would end.

So an interesting case, and one that turns out right. But that nonetheless raises interesting questions, I think.

County of Los Angeles v. Quinn Emanuel (Cal. Ct. App. - Oct. 23, 2025)

My old law firm -- Quinn Emanuel -- loses its appellate attempt to recover $1.7 million in fees and costs that it expended on behalf of its client, former Sheriff Alex Villanueva.

That hurts, of course. It's $1.7 million.

Though I am extraordinarily confident that the firm, and its partners, remain far from poor.

People v. Rosen (App. Div. - Oct. 22, 2025)

Published opinions from the Appellate Division are always interesting because they typically involve small-value but oft-repeated situations. Like here. Barry Rosen gets an automated red light ticket and fights it. He loses, but appeals, saying that the particular employee who issued the ticket wasn't a peace officer and wasn't qualified to write the citation (even though, thereafter, it was reviewed and confirmed by a police officer at trial).

The Appellate Division agrees. Red light ticket dismissed.

There's a net public benefit to litigation like this one, in my view. The net result will likely be that the City of Hawthorne -- and perhaps other cities like it -- will change, albeit perhaps very slightly, the types of persons who initially review and issue red light tickets (or at least their formal job title). That's probably what the Legislature intended, so great, the law will work as supposed. Tickets still go out, but there's a tiny (alleged) increase in quality control before they do. Great.

Now, was it worth the extensive litigation below, as well as on appeal, to get there? Probably not. Reading today's opinion, I get the keen sense that the appellant (and recipient of the ticket) -- Barry W. Rosen -- did a ton of work here. I mean: a ton. It's a simple red light ticket. The opinion reflects (1) a motion to compel discovery filed by Mr. Rosen (and denied); (2) multiple continuances (the ticket was issued on September 10, 2022, and the court trial didn't happen until almost two full years later, starting on August 6, 2024); (3) the filing of three separate pretrial motions in limine filed by Mr. Rosen (and denied); (4) a mid-trial motion to dismiss by Mr. Rosen (and denied); (5) the resulting appeal and resolution (at which Mr. Rosen prevails); (6) multiple motions on appeal filed by Mr. Rosen to augment the record; and (7) two different oral arguments on appeal -- one initially, and another (requested by Mr. Rosen) after a change in the panel.

That's a lot. For a simple red light ticket.

Now, again, in the end, Mr. Rosen prevails. Good for him (and, perhaps, everyone).

But I'm always intrigued by pro se litigants who spend a ton of time on contested, low stakes disputes like this one. I read about many of them, and know some of them personally. They spend a massive amount of time, particularly relative to the stakes at hand, litigating the matter to conclusion.

One the one hand: I get it. We're a nation of laws. When the law is violated, everyone -- including the litigant -- has an interest in getting it right. We want people to do what they're supposed to, and when they don't, we want them held accountable.

But on the other hand, the dispute often involves matters that most "regular" people simply let go, or as to which they devote minimal efforts. As here, they just pay the stupid red light ticket. Or they fight it in court for 30 minutes ago and, whichever way it goes, end it there.

Not here. Instead, it's a major fight. Over a traffic ticket. Something that the overwhelming number of recipients who simply pay and move on.

A little digging reveals that there's indeed a "Barry W. Rosen" in the Los Angeles area (which is where the ticket here was issued) who's described in at least one opinion as a "serial litigant" who fights a fair number of pro se fights. Regardless of whether it's the same Barry Rosen, it's interesting to me to see pro se litigants who serially litigate things like this. Some of them have obviously sufficient intellectual chops to become lawyers, had they elected to go that route. Others have very particular impressions on what the law "is" or should be.

Anyway, an interesting world. At issue, at least in part, in this particular red light ticket dispute.

U.S. v. Kroytor (9th Cir. - Oct. 21, 2025)

I suspect that Yuly Kroytor was amongst the most severely unhappy people upon President Trump's election in 2024.

He's a U.S. permanent resident (as of 1995) from Canada, and he pled guilty to health care fraud in 2003. The government commenced removal proceedings in 2008 -- after stopping him at the Canadian border in 2007 as he came back to the U.S. -- and he's been filing motions in immigration court and in federal court ever since, principally focused on attempting to get his criminal conviction overturned. All unsuccessful. Including today's opinion, which again finds against Mr. Kroytor.

That, as far as I can tell anyway, for now, he still appears to remain in the United States.

Though I can't imagine for long.

King v. Villegas (9th Cir. - Oct. 20, 2025)

Judge Fletcher's majority opinion simply has the better of the argument here. Yes, the Supreme Court has held that, as a matter of issue preclusion, you can't file a civil suit if you were found (or pled) guilty to the underlying offense. But the defendant here entered a nolo contendere plea, which expressly doesn't admit guilt. Judge Callahan's dissent admittedly gives potentially good reasons why, as a policy matter, we might want to hold that such pleas also bar civil lawsuits. 

But there's a rule about this: Federal Rule of Evidence 410(a). The text of that provision is both clear and categorical: 

"In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: . . . (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas."

Further, the history of that rule, as well as the express purpose of its 1979 amendment, makes crystal clear that the rule was intended to function in precisely the manner described by Judge Fletcher. So it's not that Judge Callahan doesn't have an argument. It's just not the law.

In my view, if the Supreme Court wants to have nolo contendere pleas bar subsequent civil suits, then it can easily accomplish this objective. Just change Rule 410(a) -- which the Supreme Court itself created (and can amend). No problem. But, at present, the rule says that if you plead nolo contendere, that fact can't be used against you in a civil suit. Period. Hence today's result.

The end of Judge Callahan's dissent also seemed a bit overly aggressive to me. The last paragraph says:

"Finally, the scope and impact of the majority opinion should not be underestimated. Very few criminal cases actually go to trial, most are resolved at the pleading stage, and many of those are the result of nolo contendere pleas. Thus, the majority’s strained reading of Rule 410(a) would subject state officials to a broad swath of civil cases that as a matter of fact imply the invalidity of the plaintiffs’ underlying convictions and thus should be barred under Heck, as is the case here. Indeed, the majority’s approach paves the way for criminal defendants to plead nolo contendere to criminal charges and then sue the officers for their actions in apprehending them."

The predicate fact -- that most cases get resolved by pleas -- is undeniably true, but the conclusion she reaches does not necessarily follow (at all) from that premise. In particular, while criminal defendants might perhaps in particular cases have some incentive under today's ruling to potentially plead nolo contendere (rather than guilty), the state has no obligation to accept such a plea. Every single state -- as well as the federal system -- that allows such a plea allows a court, in its discretion, to reject such a proposed plea. And several states categorically don't allow such pleas in any event (and others severely restrict them). So if it's one of those settings in which a nolo contendere plea would indeed "subject state officials to a broad swath of civil cases," the state should (and presumably would) neither offer nor agree to such a plea deal. And if the defendant nonetheless insists upon "pleading to the sheet" (i.e., not striking a "deal", but instead just pleading no contest to the entirety of the charges), then the state can object to that request and inform the court that they'd rather have a trial, and let the judge know why the plea should be rejected. As a practical, as well as legal, matter, I think that the risk of expansive state civil liability from nolo contendere pleas is practically zero. No one's required to make those deals, the court has discretion to reject them, and the state is exceptionally well situated to protect its own interests in these matters. Today's opinion won't substantially move the needle on this point at all.

As if the Supreme Court disagrees, well, then it can amend Rule 410 accordingly. Their call.

Kouvabina v. Veltman (Cal. Ct. App. - Oct. 16, 2023)

I would mention this opinion regardless, since it concerns an attorney who's declared -- by the Court of Appeal, no less -- to be a vexatious litigant. Unusual, to say the least.

Not surprisingly, it's a family law case. An ugly, messy divorce.

What I found particularly interesting about the opinion, however, is what's nowhere inside of it.

The opinion mentions that the person declared a vexatious litigant -- Elena Kouvabina -- is an attorney, and that he former spouse is also an attorney. Otherwise, there's pretty much nothing about the litigants.

But in less than sixty seconds of digging, I discovered that the vexatious litigant at issue graduated from U.C. Berkeley Law School. Not your usual background for a vexatious litigant. And that she previously worked at Wilson Sonsini. Again, not what I expected.

And that she currently works as a staff attorney . . . at the Commission on Judicial Performance.

So, yes, the lawyer declared a vexatious litigant by the justices on the Court of Appeal is responsible for evaluating misconduct allegations against these very same judges.

Wow.

Ani v. Bondi (9th Cir. - Oct. 16, 2025)

Daniel Ani would not have been kicked out of the United States had this case been twenty, or even ten, years ago.

Mr. Ani, who is a citizen of Nigeria, consistently testified that he was a member of a nonviolent group (MASSOB) that advocated for an independent state of Biafra. The Nigerian government strongly disliked that group. He said that the police attacked his group's meetings, shot and killed people, tortured him by putting a stick up his anus, kidnapped him, and did a wide variety of other despicable acts designed to persecute him for his political beliefs. And he has a contemporary newspaper article from a neutral reporter that describes his escape, by name, from one of these attacks by the government.

But Mr. Ani wanted to escape Nigeria so much that while here on a student visa, he paid someone $6,000 to marry him, and ultimately confessed to that scheme. Even though that sham marriage had nothing to do with his political persecution (other than perhaps being motivated by his desire to stay out of Nigeria), the immigration officer held that this lie, standing alone, was a sufficient basis upon which to hold that Mr. Ani was lying about everything he ever said. So you don't have to believe the newspaper article, the detailed and consistent testimony about political attacks (backed up by country reports), etc.

The Ninth Circuit affirms. 

California Dental Ass'n v. Delta Dental (Cal. Ct. App. - Oct. 10, 2025)

I discovered from this opinion that Delta Dental "is the state’s largest provider of dental plans." Maybe some readers have it.

Regardless, if you want to learn about the internal intricacies of this organization, Justice Banke lays them out in this 40+ page opinion. Suffice it to say that some dentists were unhappy about how they were paid, and sued, but lost.

In the meantime: Take care of your teeth.

U.S. v. Tainewasher (9th Cir. - Oct. 10, 2025)

There's a ton of value in Judge Graber's dissent here, particularly about what it means (or does not mean) for a district court to have committed "plain error." Definitely worth reading.

On the merits, personally, I'm fairly confident that the defendant here did indeed actually commit at least one drug offense, and not merely attempt to do so via Facebook. Here are the relevant messages:

"[O]n April 23, 2020, Tainewasher received a Facebook message from “Trigger Tre” stating, “I really need em ill get em off yu fasure,” and asking, “Do yu have em or not[?]” Tainewasher replied, “No I don’t . . . I was selling them for someone I will have more later.” A few days later, on April 29, 2020, Tainewasher messaged Trigger Tre that she “got pills.” Trigger Tre replied, “Rn?” (meaning right now), to which Tainewasher replied, “Yea.” 

On April 27, 2020, Tainewasher received a message from another individual asking if she “ha[d] any blk” (a term for heroin). She replied that she could “get you some,” which she would “[t]rade for shards” (a term for methamphetamine). On April 28, 2020, Tainewasher wrote back that, “I have dark” (a term for heroin), and the two messaged about the logistics of a meet-up. 

And on June 9, 2020, Tainewasher received a message from yet another individual, who asked, “U know where I could get a ball of shards[?]” (a term for 3.5 grams of methamphetamine). Tainewasher replied, “Yea I’ll have it in a bit.” Approximately one hour later, Tainewasher responded, “I have it,” and “[o]n my way.”"

Was there police surveillance or other evidence of the underlying transaction(s)? No. But I'm fairly confident that, yes, at least one drug deal actually went down. (Particularly the last one.)

Now, am I certain of that fact beyond a reasonable doubt? Probably not. Which is Judge Graber's principal point.

But, FWIW, I would bet a lot of money that it did, in fact, actually happen.

De Meo v. Cooley LLP (Cal. Ct. App. - Oct. 8, 2025)

I'm always interested in published opinions that involve lawsuits against lawyers. Doubly so when the case involves a lawsuit against a big law frim -- here, against Cooley. And triply so when the opinion is written by the 4/1 down and arises down here in San Diego.

Hence my particular interest in this opinion earlier today. Which, as an added bonus, involves core issues of legal ethics, which is a particular interest and expertise of mine.

Justice Irion's opinion affirms the trial court's grant of summary judgment to Cooley, and her analysis seems exactly right to me. A huge problem for the plaintiff is that he admitted at his deposition that Cooley "made clear" to him that it believed (perhaps accurately) that it did not represent him, and that he was instead represented solely by his own lawyer. Once you say that in your deposition, you're hard pressed to submit a contrary (inadmissible) declaration that, as here, contradicts your deposition testimony. No representation, as a general matter (albeit with important exceptions), means no duty.

It also hurts plaintiff that their declaration from their legal ethics expert got excluded below, as well as how the plaintiff (and his counsel) attempted to address that issue on appeal. Here's what the Court of Appeal says on that front: (Plaintiff's legal ethics expert was a California lawyer, Edward McIntyre.)

"To support his contention that Cooley owed him a fiduciary duty, De Meo also relies, in extremely general terms, on the McIntyre Declaration. 

De Meo has not pointed us to any specific item in the McIntyre Declaration that he wants us to consider in support of his appeal. Instead, De Meo’s opening appellate brief refers, sweepingly, to paragraphs 138 through 202 of the McIntyre Declaration and states, without elaboration, that “McIntyre’s opinions demonstrate the existence and breach of fiduciary duty, along the same lines as the issues discussed” in the section of De Meo’s brief that discusses the manner in which Cooley allegedly violated the Rules of Professional Conduct. We are not required to search the record to develop De Meo’s arguments for him. (Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 684 [“The reviewing court is not required to develop the parties’ arguments or search the record for supporting evidence and may instead treat arguments that are not developed or supported by adequate citations to the record as waived.”].)

 However, even if De Meo had identified any particular part of the McIntyre declaration that he wants us to consider, Cooley filed objections to large portions of the McIntyre Declaration, and the trial court sustained all of those objections. De Meo contends that the trial court erred in sustaining Cooley’s objections to the McIntyre Declaration. However, De Meo fails to develop the argument by directing us to any specific objections that he believes were improperly sustained. Instead, in a cursory argument, De Meo contends that the trial court erred, across the board, in sustaining all of Cooley’s objections."

That's not good enough. Which means, in the end, that summary judgment gets affirmed.

Did Cooley, in my view, make a mistake? Definitely. For one thing, no way should it have talked to De Meo without his lawyer present (and without the lawyer's consent) during the transaction. That's arguably (indeed, typically) a violation of the ethical rules, and it also led (in my view) directly to the lawsuit here. It also left Cooley open to De Meo claiming that Cooley told (or implied to) him that it was his lawyers. Cooley's just lucky that De Meo said what he did in his deposition. Had De Meo not done so, this case could easily have gone the other way.

Lesson of the day: Don't talk to a represented party without the other lawyer's consent (and, hopefully, presence).

People v. Molina (Cal. Ct. App. - Oct. 2, 2025)

Be nice to your kids. Otherwise they might put you in a home like this one (in Riverside):

"On January 24, a relative of a Secure Hands resident called the police after the relative visited the facility. When the responding officers entered the facility, they were overcome by the smell of human waste. The officers found one woman lying in fecal matter on a bare box spring. She had Alzheimer’s disease and was unable to move on her own or speak. She was unclothed except for a soiled adult diaper, and there was a mattress next to her that had feces and urine all over it. A second woman was trapped under another mattress in the same room. The second woman was also unclothed except for an adult diaper, which was saturated with feces and urine, and tears were streaming from her eyes. She appeared weak and asked for water; she said that she had not had water for days. The officers found a male resident in another room who appeared to be having a seizure.

The officers found Michael in a third room. He was screaming for food and said that he had not eaten in awhile. He also said that he had limited mobility and could not get out of bed that day. The pad on his bed was soaked with urine, and he reported that the pad had not been changed in days. Michael told the officers that someone came to care for him a few days per week, but that person had not been there for awhile. The person bathed him and changed his bed pad, but if she did not visit, the pad could go days without being changed."

There's additional disgusting stuff in the opinion as well. The place was a nightmare.

Fortunately, at least one person went to jail. Though, in this case, for only four months.

They are perhaps lucky that I was not the judge.

Berkeley People's Alliance v. City of Berkeley (Cal. Ct. App. - Sept. 30, 2025)

Here's an example, in my view, of the empty formality of texualism.

California's Brown Act states that city council meetings should generally be open to the public, but that "[i]n the event that any meeting is willfully interrupted by a group or groups of persons so as to render the orderly conduct of such meeting unfeasible and order cannot be restored by the removal of individuals who are willfully interrupting the meeting, the members of the legislative body conducting the meeting may order the meeting room cleared and continue in session.”

During three Berkeley city council meetings in late 2023 and early 2024, the public was disruptive, so the city council decided to close the meeting. But instead of physically removing the public from the room the city council was initially in, the city council moved to a different room and continued the session without the public. Plaintiffs sued, claiming that the Brown Act required the city council wasn't allowed to move to a new room, and instead had to stay in the same room but clear the public.

The trial court dismissed the lawsuit. The Court of Appeal reverses, holding that this states a claim under the Brown Act. Because the words of the statute expressly say that the city council could "order the [] room cleared and continue in session" but don't expressly say that the city council can move rooms.

To me, that's silly. It matters not one iota what room they're in. The public's excluded. Who cares whether it's the original room or a different one? Moreover, there's good reason to simply move rooms. That way you don't have to physically remove people, with the resulting potential for violence.

Yes, the statute says "order the meeting room cleared and continue in session." But that's what the city council did. It "ordered the meeting room cleared" -- albeit after it had moved to a different room; i.e., eventually, the public was cleared" and "continue[d] in session" (in a different room). The words of the statute weren't violated.

And even if they were, I'd have interpreted the Brown Act pursuant to Section 3533 of the Civil Code, which dictates the statutory maxim that "The law disregards trifles." It's irrelevant whether the initial meeting room is cleared and the meeting continues in that empty room or whether that initial room is emptied only later and the meeting continues in a different room. The public isn't there either way. The difference is a trifle (if that).

Ditto for Section 3511 ("Where the reason is the same, the rule should be the same."), Section 3528 ("The law respects form less than substance."), and Section 3532 ("The law does not require idle acts.").

I would have affirmed. (And were I on the California Supreme Court, I would vote to grant review and reverse. 'Cause the resulting opinion, in my view, literally requires only a half-dozen pages. It's easy..

Kashanian v. National Enterprise Systems (Cal. Ct. App. - Oct. 1, 2025)

Kudos to Justice Rodriquez for publishing this opinion today. The trial court thought that plaintiff didn't have standing to seek statutory damages since he didn't suffer any actual injury, so dismissed the lawsuit. That's clearly wrong. Standing in state court is different than in federal court. (And, even there, statutory damages sometimes themselves create standing.) The statute here allows statutory damages -- in order to deter misconduct -- even absent actual injury. Exactly right.

Ridley v. Rancho Palma Grande HOA (Cal. Ct. App. - Sept. 29, 2025)

Ah, the joys of owning a condo.

Especially when, as here, the building is accidentally built above an abandon, unregistered water well.

Sounds like an absolute nightmare.

Estate of Esche v. Bunuel-Jordan (9th Cir. - Sept. 29, 2025)

There's only one published California appellate opinion thus far today -- this one from the Ninth Circuit. Fortunately, it's somewhat interesting. Equally fortunately, Judge Berzon begins her opinion with a nice summary of both the case and the result, saying:

"On its merits, this case raises troubling questions: Did private health-care providers acting under color of state law violate a patient’s constitutional rights when, without a court order, they forcibly held her in a hospital for a month; subjected her to medical, including psychiatric and prenatal, treatment; did not allow her to contact a lawyer; and then, after her daughter was born, allowed her to leave in so fragile a condition that she died outside near the hospital that night? But we cannot answer those questions today. The district court’s denial of the health-care providers’ good-faith defense to § 1983 liability is not immediately appealable under the collateral order doctrine, so there is no decision within our jurisdiction to review. That conclusion eliminates any basis for our jurisdiction over the cross-appeal brought by the patient’s survivors. We accordingly dismiss these appeals."

The opinion seems definitely correct; it's not a final judgment, and the federal defense at issue is not akin to qualified immunity, so yeah, no appellate jurisdiction. On that (dispositive) point, I wholeheartedly agree.

I had a slightly different reaction than Judge Berzon, though, on the merits.

From the introduction, I thought that I would be heavily sympathetic to the plaintiff. And, in truth, I kinda am. After reading the entirety of the facts, I might have added the word "allegedly" to that introductory paragraph, but overall, it accurately summarizes what plaintiff claims to have transpired.

At the same time, I find it somewhat difficult to reconcile any potential outrage at the hospital's (alleged) initial conduct with any potential outrage at the final result. From Judge Berzon's introduction, I definitely felt like the hospital was not giving the patient very much autonomy. I learned later in the opinion that the hospital (through its psychiatrist) did file a petition to involuntarily hold the plaintiff in the hospital, but the hospital held here there in the interim while the petition was pending. Clearly the better option would have been to get a TRO and a court order for that interim period so, yes, there's a real issue about whether the hospital was justified in holding the plaintiff in the hospital, and treating her there, against her wishes.

But that initial sentiment is somewhat contradicted by the final result -- one that Judge Berzon's opinion distinctly mentions, but that didn't really hit home until the subsequent recitation of the ultimate facts.

Pursuant to the pending petition, the hospital held her there, and treated her, until her child was born, even though he continuously objected and demanded to leave. Once the child was born, however, the hospital finally relented, and granted her the autonomy that she so desperately sought. Two days after the c-section, they told her that if she really wanted to leave, it was 100% against their medical advice, but at that point, if she was absolutely set on declining medical treatment, it was her choice, and when she insisted on leaving, they then dropped the petition and -- again, totally AMA -- let her leave.

Which is when she promptly dropped dead on a porch not far from the entrance to the hospital.

There's a lingering sentiment in me that says you can't have it both ways. You can't complain about not being allowed to leave the hospital and then simultaneously complain about dropping dead after they finally relent and release you. It's one or the other. And the fact that she did, in fact, drop dead shortly after leaving the hospital seems to me a strong argument for not letting her leave the hospital, especially during that period in which she had an about-to-be born child inside of her.

Admittedly, those are all issue that relate to the merits, and a jury will ultimately get to decide whether what the hospital did was justified or not. And, again, the much better practice would have been to get all of this blessed by a judge in advance as part of the involuntary commitment petition.

But it nonetheless seems difficult to me for one to argue that you should have been left to leave the hospital when, upon actually being released, you promptly (and presumably involuntarily) ceased to exist.

Wolfswinkle v. Gordon (Cal. Ct. App. - Sept. 3, 2025)

As readers may know, I read all of the published opinions from the California Court of Appeal (alongside the Ninth Circuit and the California Supreme Court), but on occasion, I also peruse the unpublished Court of Appeal opinions -- at least the ones down here from San Diego.

After all, you gotta keep up with one's neighbors, right?

So, today, I stumbled across this opinion from earlier this month. Someone -- Tiffany L. Wolfswinkel -- was (allegedly) talking on her cell phone while driving, got pulled over by the cops, the officers noticed that she had watery eyes and slurred speech (plus smelled of alcohol), and placed her under arrest. When they searched her car, they also found two bottles of whiskey, one of which was opened and almost empty. Ms. Wolfwinkel subsequently blew a .25 (twice) when tested for BAC.

Reminder for the day: Don't talk on your cell phone if you're driving while drunk. It gives the police a reason to stop you.

Anyway, Ms. Wolfswinkel loses her license for driving drunk, but appeals, and prevails (!) on a procedural technicality. She then moves to recover her attorney's fees, which the trial court denies, and the Court of Appeal affirms. Albeit in an unpublished opinion.

Which is somewhat fortunate for Ms. Wolfswinkel. Because were I to have a somewhat unique name, I'm not sure that would have made the call to file an appeal and risk a published opinion that permanently reminded the world that I'd been (allegedly) talking on my cell phone while driving with a .25 BAC.

Rosenwald v. Kimberly-Clark Co. (9th Cir. - Sept. 24, 2025)

Judge Smith dismisses this appeal (and the underlying lawsuit) for lack of subject matter jurisdiction, noting that the plaintiff -- who filed in federal court to begin with -- "failed to plead subject-matter jurisdiction in the original Complaint, First Amended Complaint, or SAC. [Indeed, left out entirely both the citizenship of the defendant in this purported diversity case as well as failed to allege any amount in controversy.] We issued two orders outlining our jurisdictional concerns. Yet Plaintiffs’ TAC is far from alleging a viable amount in controversy."

Given these underlying facts, it's perhaps quite generous for Judge Smith to say in the immediately prior sentence that "Plaintiffs are not pro se; they have sophisticated counsel."

Angel Lynn Realty v. George (Cal. Ct. App. - Sept. 23, 2025)

Sometimes a powerful hypothetical is worth a thousand words.

In reversing and remanding the trial court's contrary judgment below, here's what Justice Earl says about the precise issue at hand; i.e., whether you can add an individual to the judgment as an alter ego despite the fact you previously lost your alter ego claim at trial:

Assume Corporation ABC (ABC) borrows $100 from John and fails to repay it. Assume further that ABC has one shareholder—Jane. John sues ABC and Jane to recover the $100, and he alleges Jane is the alter ego of ABC. At trial, John proves ABC owes him $100 but fails to prove Jane is the alter ego of ABC. Instead, the trial court finds ABC and Jane have never comingled funds; Jane has never treated ABC’s assets as her own or diverted its assets to herself to the detriment of creditors; corporate formalities were always observed; and ABC was adequately capitalized and had $1,000 in assets at the time of trial. The trial court also finds no inequitable result would follow if ABC’s corporate separateness from Jane was respected. The trial court enters judgment against ABC (but not against Jane) for $100.

After judgment is entered, Jane decides John will never collect a penny from ABC, and she transfers all of ABC’s assets to herself and dissolves the corporation. If John thereafter moved to amend the judgment to add Jane as a judgment debtor based on an alter ego theory, would collateral estoppel preclude him from doing so on the ground the alter ego issue had already been decided against him? We do not believe it would. Although the alter ego issue was litigated and decided, the relevant facts and circumstances materially changed after the judgment was entered. To put it another way: When the judgment was entered, Jane was not ABC’s alter ego, but based on postjudgment events, she became ABC’s alter ego, and it would be inequitable to continue to respect ABC’s corporate separateness from Jane."

Sounds exactly right to me. Well spoken. 

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.