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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Like anyone has a handheld calculator these days anyway.

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

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

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

I hate days like that.

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

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

Just a suggestion.

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

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

Here goes:

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

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

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

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

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

But two things were interesting.

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

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

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

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

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

I'd have liked to hear more about this.

Still would.

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

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

"Sarabia fired more shots through the door at Ramon. 

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

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

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

When Sarabia left, Romero called 911. 

Officers found German dead in a pool of blood. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here's one of those opinions.

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

Still.

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

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

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

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

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

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

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

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

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

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

Good to know.

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

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

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

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

We'll see if any of that happens.

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

Childs v. San Diego Family Housing (9th Cir. - Aug. 28, 2025)

The tenants are suing for mold. The lawsuit is procedurally complicated because the property is on a military base here in San Diego, and so at issue are federal removal statutes, enclave issues, derivative sovereign immunity, etc. As a result, the case has bounced around the federal system for the past half decade, only to be remanded today back to state court to start over.

You might be thinking: "Well, if it's a moldy house, I bet it's a pretty terrible piece of property." Maybe. But the house is in an extremely nice location. Check it out.

Emmons v. Jesso (Cal. Ct. App. - Aug. 27, 2025)

You don't see many landlord/tenant disputes in the Court of Appeal, much less published opinions about them. Or at least very few about back rent. Toxic mold, vicarious liability for criminal injuries, and big-ticket issues like that occasionally percolate up, but not $11,000 back rent disputes. At least not often.

But today, yep, a tiny dispute (in the scheme of things) about fourteen months of back rent. Which -- even though it's California -- the Court of Appeal holds that, yes, the tenant owes it. Judgment affirmed.

There's a lot of other stuff in the opinion about relocation expenses, statutes, rent stabilization ordinances, etc., all of which is important. But that's the bottom line.

Pay your rent.

People v. Fletcher (Cal. Supreme Ct. - Aug. 25, 2025)

As I've noted previously, the California Supreme Court is far less fractious than the United States Supreme Court. The opinions of the former are more likely to be unanimous, and when there's a dissenting opinion, it's far less likely to be affirmatively mean in California than in its federal counterpart.

Plus, at least in the modern era, there are far fewer state court opinions that are decided by a single vote (4-3) than corresponding federal court opinions that are 5-4s.

All that's true.

But as they say, for every rule, there are exceptions. Today's California Supreme Court opinion is definitely an exception.

It's not unanimous. It's decided on a 4-3 vote. And the dissent is quite strongly worded.

You can read the entire 79 pages if you would like. But I think the following snippet from Chief Justice Guerrero's opinion gives one a sufficient feel for the rest:

"The majority today holds that a prior conviction for a gang-related felony cannot support an increased sentence under the “Three Strikes” law or the prior serious felony enhancement statute unless the prior conviction satisfies current law defining a gang-related offense. This novel standard is virtually impossible to meet, and it will nullify decades of prior convictions that would otherwise support enhanced sentences for repeat felony offenders. It is also unsupported by the plain language of the relevant statutes and the intent of the voters and the Legislature that enacted them. I cannot agree. . . .

In enacting the Three Strikes law, the electorate ensured precisely this result, that is, a prior conviction for an offense or statutory violation identified as a serious felony would remain a prior serious felony conviction. The electorate locked in the list of serious felonies as of a certain date, thereby ensuring that future legislative enactments could not remove an identified felony from the list. . . . 

The majority eschews this straightforward analysis and embraces an obscure syntactical argument that no party has raised. The majority observes that the statute identifying a gang-related felony as a serious felony offense is phrased in the present conditional tense. [Cite] The majority tepidly explains that this phrasing “suggests an inquiry under current law,” and it contrasts this phrasing with hypothetical phrasing in the past tense. [Cite]

The majority’s reasoning does not withstand scrutiny. To the extent it is meaningful, the present tense phrasing is compelled by its statutory context, which has nothing to do with prior convictions or recidivist sentencing schemes like the Three Strikes law."

I wouldn't be surprised in the slightest to read something with that tenor in the United States Supreme Court. It's far more unusual to hear it from the California Supremes.

But there you have it.

Washington v. County of San Diego (Cal. Ct. App. - Aug. 21, 2025)

When the previous head of the Public Defender's Office down here in San Diego left the job, there was an opening, and in an unusual move, a sitting judge -- Judge Washington -- applied for the position. 

But there is a statute (Government Code Section 27701) -- originally enacted in 1921, and unchanged since 1947 -- that provides: “A person is not eligible to the office of public defender unless he has been a practicing attorney in all of the courts of the State for at least the year preceding the date of his election or appointment.”

Judge Washington was a long-time public defender before he was appointed to the bench, but since he's now a judge, he wasn't a practicing public defender during "the year preceding the date of his election or appointment.” So he couldn't be appointed.

So he sued, claiming that's not what the statute means.

The trial court ruled against him, and today, the Court of Appeal affirms. The statute's unambiguous. It means what it says.

I've now read the statute, as have you. Yep. That's what it says.

It may be a silly law. But there are lots of silly laws, and ones passed in 1921 are definitely no exception.

Sorry about that. But, yeah, the statute applies.

On the upside, at least Judge Washington can now go back to hearing criminal rather than civil cases. (He was reassigned to civil ones since he had a conflict hearing cases brought by the public defender's office while he was seeking to be its head.)

Gonzalez v. Herrera (9th Cir. - Aug. 19, 2025)

The Ninth Circuit decides today that prisoners who earn time credits under the First Step Act can have those credits applies to reduce the time they spend on supervised release rather than being useless.

The opinion creates a circuit split. It also is a big deal, since FSA credits and supervised release are ubiquitous in the federal system. As the opinion itself recognizes, "splits in authority are seldom so stark and consequential." So I wouldn't be at all surprised if and when the Supreme Court takes up a case to resolve this issue once and for all. (Assuming that Congress doesn't respond by amending the statute to make it clear.)

That said, for now, isn't Judge Mendoza's opinion pretty darn persuasive?

People v. Alvarez (Cal. Supreme Ct. - Aug. 18, 2025)

It's an death penalty case, and involves the horrible child abuse murders of an infant and a four-year old. Important on any metric. Accordingly, the various opinions are a combined 159 pages. Hefty reading.

Given the stakes at hand, it's somewhat ironic that the only (partial) dissent is from Chief Justice Guerrero, who writes to express her disagreement with the majority's decision on the $200 parole revocation fine.

An issue in a number of other cases, I'm sure, so definitely worthy of informed resolution.

But the fate of the $200 fine is definitely not the big-ticket item in this case.

In re Subpoena Internet Subscribers (9th Cir. - Aug. 15, 2025)

Here's a good example of a quasi-Streisand effect as applied to precedent.

The studio that owns the rights to the movie The Fall are, like many studios, tired of people pirating the thing. So they decide to catch some people and sue them. They hop on BitTorrent and quickly find some people sharing the thing, and log their IP addresses.

Normally, in situations like this, you just file a John Doe complaint, subpoena the internet provider, get the actual names, and then replace the John Does with the actual defendant and go to town. But the DCMA also contains a more streamlined subpoena process that allows copyright holders to skip the whole "file a lawsuit" part and obtain a quick subpoena by filling out a form, and the statute says the court clerk "shall" issue the subpoena if it's done properly. No need to even involve (or have to convince) a judge or anything like.

The studio discovers that 29 of the (alleged) pirates have IP addresses with Cox, so fills out the forms and asks the federal court for a streamlined DCMA subpoena to Cox that discovers the identities of the alleged pirates. Cox forwards that subpoena (as the DCMA requires) to those 29 people, and -- predictably -- none of them do anything about it.

Except for one.

One guy -- John Doe -- writes a letter back to the Court saying, essentially, "Oops, I'm not a pirate, it's just I didn't put a password on my WiFi. Problem solved now. Never downloaded that movie. Must have been someone else using my WiFi. Please don't tell them my name." The district court interprets that letter as a request to quash the subpoena to John Doe, and asks the studio to respond.

Now, at this point, if I'm the lawyer for the studio, here's what I'd do: Nothing. You've already got the names of 28 alleged pirates -- Cox gave you those already when those 28 never responded. Go to town and sue all 28 of them (or whatever subset you feel like) to make your point. Leave Mr. Active -- John Doe -- out of it.

Sure, we all know he's probably a pirate too, but who cares? Having 28 defendants is as good for your purposes as 29. Probably even better, since the 29th ill probably be a little more pain in the ass than Mr. 29, who got off his duff and bothered to write a letter in response to the subpoena.

But, no, the studio here spends the money to write a whole big motion saying that the subpoena to Cox is valid, the DCMA allows it, blah blah blah. Spending far more money, I'm certain, than a rental of The Fall would possibly cost, as well as more than you're ever going to get from Mr. 29 anyway, since most of the guys I know who pirate movies don't exactly have $150,000 in statutory copyright damages lying around in their couch cushions.

Plus, even that assumes you first win the subpoena motion, and then prevail in your copyright suit against his "no password" defense. And, here, the studio doesn't even get to that latter point, and loses on the first. The district court holds that an internet provider -- Cox -- isn't subject to the expedited DCMA subpeona process because they're just providing the tubes, not actually holding copies of the movie itself.

Now, at this point, if I'm the studio, here's what I am going to yet again do: Nothing. Leave it be. 

It's a Hawaii district court opinion. An unpublished one, at that. Who cares? Let it go. Dominate the defenseless other 28 defendants, make your point, and move on.

But nope. The studio appeals. Spending more time and money trying to get approval for the subpoena for Mr. 29.

Leading to today, at which the Ninth Circuit holds -- in a published opinion -- that, yep, you can't use the streamlined DCMA subpoena process to get subpoena ISPs like Cox.

So, before, you could issue a subpoena, get one entered, get virtually every name you wanted, but you might not get the name of that incredibly rare person who actually bothered to file an objection.

But now, after your appeal, in binding precedent, you -- and the other studio like you -- are categorically precluded as a matter of law from doing so to the 67 million residents of the Ninth Circuit. As well as all of the ISPs in that area, and I assure you, there are quite a few.

Not a sound strategic decision.

But yay for Mr. Doe. Well done. Pirates everywhere owe you a debt of gratitude.

And to personally commemorate this august opinion, and in honor of the Streisand effect, this weekend, I'm definitely not going to watch Fall -- which actually seems like it could potentially be a cool movie -- on a pirate website.

And neither should you.

Gamo v. Merrell (Cal. Ct. App. - Aug. 14, 2025)

This seems right to me. Just because a statute (here, the Consumer Legal Remedies Act) allows for one-way fee shifting if the plaintiff prevails (but not if the defendant prevails), that doesn't categorically bar a defendant from obtaining cost of proof sanctions for an improperly denied request for admission. One's a discovery provision and the other's about the merits. Two different things. For example, you an get cost of proof sanctions even if you lose.

The case here involved the purchase of a Masserati and the disputed value of the plaintiff's trade-in; the dealership gave him $2,000 for it, but the plaintiff said it promised him $6,500. Plaintiff denied RFAs that asked him to admit, for example, that he initialed each page of the written contract. (It seems to me like there's no reason not to admit that one if it's indeed true, but whatever.) Defendant subsequently prevailed at trial. The trial court thought it had no authority to award cost of proof sanctions given the one-way fee provisions of the CLRA, but the Court of Appeal reverses and remands.

I'm on board for pretty much everything that Justice Moore says in the opinion, with one caveat. There are some RFA's that are pretty much case-dispositive; e.g., "Admit that Defendant did not violate the CLRA." None of those were propounded here, but if they were, that might be an entirely different story: I could see an argument that, as to those, a fee award on behalf of a prevailing defendant might be precluded by the underlying statute.

So I would drop a footnote to leave that particular issue open were it me. Again: Doesn't apply here, but I could see it potentially applying in other cases. So no categorical rule.

Nwauzor v. The GEO Group (9th Cir. - Aug. 13, 2025)

Earlier today, Judge Bumatay, joined by Judges Callahan and VanDyke, authored a strongly worded, 27-page single-spaced dissent from the denial of rehearing en banc in this case, which involves the minimum wage applicable to civil immigration detainees. Simultaneously, Chief Judge Murguia, joined by Judge Fletcher, spent a grand total of two and a half pages responding to Judge Bumatay. And Judge Collins, joined by Judges Nelson and Bress, says in single paragraph that he'd have taken the case en banc for the reasons stated by Judge Bennett in his panel dissent.

Those disparate approaches probably speak volumes about various personalities on, and interactions between, some of the current judges on the Ninth Circuit.

Bieganski v. Shinn (9th Cir. - Aug. 12, 2025)

There were over a half dozen published Ninth Circuit opinions today, which comprised nearly 200 pages of single-spaced text. So a lot to read.

I nonetheless thought I'd only talk about this one, since it seemed to me the most doctrinally interesting.

It's a thorny area of the law involving affirmative defenses to criminal statutes. The normal rule, as you know, is that the state has the burden of proving the elements of a crime beyond a reasonable doubt. At the same time, however, the state can make affirmative defenses, and as to those, (1) the defendant has the burden of proof (which is turn often practically compels him to take the stand), and (2) is required to demonstrate those by the preponderance of the evidence (rather than the "beyond a reasonable doubt" standard). So it's a very big deal whether something's an element or an affirmative defense.

And what matters, the Supreme Court has held, is substance, not form. A state could not, for example, constitutionally say "It is a crime to be a nurse in a hospital when a patient dies, but it's an affirmative defense if the nurse shows they didn't cause the death." No good. You can see why.

Which brings us to today's case.

Arizona says that it counts as molestation if you deliberately touch a child's genitals. But it's an affirmative defense if you didn't touch them for sexual purposes. You see where the resulting burdens are. Arizona's statute in this regard is different than every other state, which has sexual motivation as an element of the offense. Is Arizona's statute constitutional, and is the defendant here (who was convicted based upon the Arizona statutory regime) entitled to federal habeas relief?

There's a ton to Judge Bybee's opinion. It's really quite good, and explains a very complicated doctrinal area in a clear and understandable fashion. He ultimately holds (alongside the rest of the panel) that the Arizona regime is unconstitutional, since it in substance turns an essential element of the offense (sexual motivation) into an affirmative defense.

What does a ton of work for Judge Bybee -- and understandably so -- is his claim that, as written, the Arizona statute would criminalize a massive volume of entirely innocent conduct if you took away the affirmative defense. When a parent bathes their child, after all, there's sometimes the occasional touching of the child's genitals and/or anus. Is that really molestation? Arizona says yes, albeit with an affirmative defense if the parent can prove that the touching wasn't sexually motivated.

That makes sense to me. A powerful argument. And the fact that prosecutors wouldn't charge parents for bathing their kids doesn't save the statute -- that relies on noblesse oblige to salvage an unconstitutional statute, and we're not down for that

Solidly argued. So you can see full well why the panel comes out the way it does.

So the opinion is worth mentioning (as well as reading) for that reason alone.

But I wanted to add one other thought as well.

Even more than the "bathing" argument, Judge Bybee's opinion relies a ton on the argument that the Arizona statute would criminalize anyone who changed the diaper of a baby. Judge Bybee articulates this argument over a dozen times, saying that (1) if you change a baby's diaper, you're automatically guilty of child molestation in Arizona (absent proof of an affirmative defense) [e.g., "Arizona’s child molestation scheme . . . . criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation."); and (2) if you instead don't change the baby's diaper, that's a crime too. ["Any parent or caretaker who fails to change a child’s diapers may be charged with criminal neglect.]

So you're damned if you do, and damned if you don't. Or, in Judge Bybee's words, "Arizona can thus punish both the changing and the nonchanging of a diaper. No matter what choices parents or caretakers make, they have violated Arizona law." P.S. - Oh, and if you see someone else change a diaper, you're guilty if you don't report that too. ("Given the mandatory reporting requirement, a parent who observes a spouse changing a diaper has an obligation to report the violation, under penalty of law.")

Okay. Again, a powerful argument.

My only comment, though, is about the underlying assumption. Does changing a diaper really involve the elements of child molestation under Arizona law?

I get it. If, during the diaper change, you touch the child's genitals, that satisfies the elements. Since the statute says that you're (facially) guilty if there's "any direct or indirect touching . . . of any part of the genitals, anus or female breast by any part of the body or by any object."

But, as a factual matter, how often does that really happen when you change a diaper?

I've got four kids. I've changed my share of diapers. For me the number of times that I touched their genitals while doing so (while holding a wet wipe or otherwise) was very small. If the kid was actively peeing on me during the diaper change, well, yeah, sure, sometimes I had to move to block the stream, and that could involve touching the genitals. But otherwise, I suspect that the number of times one actually manipulates the child's genitals during a diaper change seems relatively small.

Now, if we're talking about a diaper that's full of feces, that often involves a different story. That's a situation in which you may well have to touch (albeit with your covered hand, obviously) the child's anus or genitals. Gotta get that area clean, for sure. Yep, in that situation, you might well be facially guilty of child molestation under Arizona's statute.

But it nonetheless seems overly broad to repeatedly say, as the opinion currently does, that anyone who changes a diaper is facially guilty. (E.g., "Everyone who knowingly changes a diaper could be convicted of child molestation."). If we're talking about poo diapers, okay, yep, I think that's generally correct. At least as I recall the whole diaper-changing experience.

But for those half (or more?) of diaper changes that merely involve pee, I don't think that's usually a facial crime even under the Arizona statute. You've got a valid defense even beyond the affirmative one, since you probably didn't, in fact, usually touch the genitals or anus (or "female breast").

So I think today's opinion correct, but only with the caveat that whenever we're talking about changing a diaper, we're talking about diapers full of poo. Particularly that yucky, expansive, totally-all-over-the-place (my-God-what-have-you-done-here) baby poo.

With that graphic but important caveat, sure, I fully concur.

The Satantic Temple v. Labrador (9th Cir. - Aug. 11, 2025)

I get it. You want to challenge Idaho's radical anti-abortion law on constitutional grounds. Truly: I get the motivation.

But, if only as a practical matter, doing so by filing a lawsuit on behalf of "The Satantic Temple" -- i.e., a church that venerates Satan -- is not the way to go.

Very much so.

The Ninth Circuit dismisses the lawsuit for lack of standing, albeit with a remand to allow the plaintiff to amend the complaint to be more specific about a particular member of the church if it wishes.

But please listen. If you want to really bring the lawsuit, just bring it on behalf of the (anonymous) member herself.

Not The Satanic Temple.

I mean, I'm not a professional public relations flack, but come on. This one's fairly obvious.

Hohenshelt v. Superior Court (Cal. Supreme Ct. - Aug. 11, 2025)

I'm surprised that the Court wasn't able to get Justices Corrigan and Jenkins on board for this one.

The majority opinion goes out of its way to strike a middle ground. The issue is whether the Federal Arbitration Act preempts Section 1281.98 of the CCP, which provides that defendants in employment and consumer cases waive their right to arbitrate if they don't timely pay the arbitration fees that are due. The majority holds that it's not preempted, but simultaneously limits the statute to cases in which the failure to pay arbitration fees was wilful, grossly negligent, or fraudulent. This overrules a slew of Court of Appeal cases holding that the statute means what is says and that even accidental failures to timely pay arbitration fees results in a waiver of the right to arbitrate.

Given the language -- and, I believe, the intent -- of Section 1281.98, there's a strong argument that those Court of Appeal holdings were correct. Though Justice Liu's majority opinion does a decent job of making the contrary argument. (Which, of course, is now the law.)

Regardless, I would have thought that substantially narrowing the scope of Section 1281.98 would have been enough to get everyone on board for the anti-preemption holding. Apparently not. Justices Corrigan and Jenkins still believe that Section 1281.98 is preempted. So be it.

Analyzing the practical realities more deeply, maybe narrowing the reach of Section 1281.98 was (also?) an attempt to insulate the opinion from reversal by the United States Supreme Court. We'll see how that plays out in the end as well.

In any event, for now, the rule is a lot more favorable to nonpaying arbitration defendants than it was 24 hours ago. Section 1281.98 is going to apply in a ton fewer cases going forward.

Munoz v. Regents (Cal. Ct. App. - Aug. 5, 2025)

Okay, I guess. But particularly now having seen what the Trump administration has (successfully) done to Harvard, Columbia, and a wide variety of other universities -- over far less "egregious" conduct -- I would not want to be in the position (as here) of hiring undocumented immigrants at the University of California, likely in violation of federal law, and then just waiting to see what buttons the federal government decides to push to punish me for that decision.

But the Court of Appeal says that fearing backlash -- including lawsuits -- by the United States isn't a good enough reason to refrain from hiring undocumented immigrants, so unless either federal courts or the California Supreme Court step in, I guess we'll just have to see how this one ultimately plays out.

People v. Harlow (Cal. Ct. App. - Aug. 5, 2025)

I have always thought that California's mental health pretrial diversion statute gave potential criminals a fair degree of incentive to get someone to diagnose them with a mental disorder prior to committing a wide variety of common crimes. Today, the Court of Appeal holds that no advance planning is required: that as long as the diagnosis is within five years of the motion for pretrial diversion, the statute's satisfied, even if the diagnosis comes long after the actual crime.

Which is nice.

Now, it's still in the court's discretion, and there are some caveats. But this seems like a fairly substantial benefit to criminal defendants.

Many of whom, I suspect, could easily -- easily -- be diagnosed with a mental disorder. Even from a neutral physician, and even more so from a physician who's, shall we say, a bit more of a paid advocate.

In re Ja. O. (Cal. Supreme Ct. - Aug. 4, 2025)

This is low-key sweet.

Justices on the United States Supreme Court are -- as you know -- increasingly fractious. Dissents are  often vitriolic, majority opinions often respond in dismissive (or derisive) terms, etc. It's a very polarized institution, and the opinions amply reflect that fact.

By contrast, California Supreme Court opinions are often unanimous. And even when they aren't, they're often like this one today.

The question presented was when exactly the Indian Child Welfare Act of 1978 required county welfare department to ask extended family members about whether the child might be a potential Indian child. Some California appellate courts had held that inquiry duty existed whenever the child was placed in temporary custody, whereas others had held that this duty arose only when the child was removed from custody without a warrant. So the California Supreme Court granted review to resolve the conflict.

After the Court granted review, however, the California Legislature passed a statue that provided that this duty existed whenever the child was placed in custody, regardless of whether there was a warrant. So that resolved the issue, at least going forward.

So the question then became limited to cases arising before the passage of the statute. Which side of the appellate split was right for those, since they were governed by the then-existing statute.

The majority concluded that the same rule governed both cases: that the old statute imposed the same duty (albeit in somewhat less clear terms) than the new statute. And in so holding, Justice Jenkins' majority opinion cited a prior California Supreme Court case that noted that sometimes, a subsequent statutory amendment might give insight into the Legislature's intent regarding the prior statute. Justice Jenkins explained that the majority didn't have to rely on that principle here, since they thought the prior statute was clear enough on its own terms, but note that, hey, for whatever it works, that concept points the same way here.

Justice Liu, joined by Justice Kruger, concurred, and agreed with everything the majority said, including its result, but didn't think that it made sense to rely on the Legislature's subsequent statutory enactment to figure out the meaning of the prior statute. Justice Liu noted -- correctly -- that the majority opinion didn't actually rely on that principle here, so the two sides basically completely agreed on everything, but the concurring justices just wanted to make clear that, as a general principle, they didn't agree with the basic preexisting principle that future statutes may give insight into the meaning of older ones.

That's a difference, of course. But such a minor one in the scheme of things, and articulated on both sides with restraint and respect.

Something you rarely see these days in the federal Supreme Court.

Gutierrez v. Tostado (Cal. Supreme Ct. - July 31, 2025)

I always appreciate getting back from a family vacation and seeing a published opinion that helpfully summarizes for the reader its basic holding at the outset. You usually get these from particular justices on the Court of Appeal. But today, it's Chief Justice Guerrero who does it. Here's how she starts her opinion:

"We granted review in this matter to decide whether the statute of limitations for medical professional negligence claims within the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5)1 applies to an action for negligence brought by the injured driver of a vehicle rear-ended by an ambulance transporting a patient. We hold that MICRA’s statute of limitations does not apply under these circumstances.

Our holding follows from principles articulated in our previous decisions concerning the scope of MICRA’s statute of limitations, as well as the general rule that the applicable limitations period depends on the nature of the right being sued upon. Where, as here, a plaintiff sues a health care provider for breach of a duty owed to the public generally, as opposed to a violation of professional obligations owed to patients, the two-year statute of limitations for general negligence claims (§ 335.1) applies. This conclusion is supported by MICRA’s text, purpose, and legislative history, as well as relevant public policy considerations.

Because the Court of Appeal concluded that the MICRA statute of limitations applies here, we reverse its judgment and remand for proceedings consistent with this opinion."

The remaining 27 pages of the opinion fill in the details, and are important. But it's great to know at the outset where we're ending up.

Hara v. Netflix (9th Cir. - July 28, 2025)

It's not news to me to discover that I'm not hip. Indeed, it's fairly self-evident.

As a non-hipster, until today, I definitely did not know about the Netflix animated series, Q-Force, which is "about a group of underappreciated queer spies who must save the planet from various dangers." Each of the characters in the series is apparently based on a real person, and one of those real people -- a drag queen in West Hollywood -- later sued for trademark infringement.

The Ninth Circuit opinion that resolves this appeal contains tons of details about the series and some of the underlying real people. Plus screenshots. Plus pictures of the real people.

So I'm hipper today than I was yesterday.

But definitely still not hip. At all.

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

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

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

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

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

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

Though were those extra days really worth the risk?

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

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

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

In the middle of the opinion, Justice Snauffer says: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Really?