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

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

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

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

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

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

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

Two things, though.

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

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

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

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

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

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

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

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

Still. TBD. Different for sure.

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

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

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

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

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

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

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

TBD as well.

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

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

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

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

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

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

Okay. We obviously want to spank that guy.

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

All done, right?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But as a categorical rule? No way.

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

But let her testify.

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

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

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

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

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

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

You bastards.

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

This seems a pretty successful business model, actually.

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

That's a fair chunk of change.

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

Nice work if you can get it.

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

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

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

What a mess.

One that now gets to be relitigated on remand.

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

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

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

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

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

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

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

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

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

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

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

Yikes.

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

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

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

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

Tavares v. ZipCar (Cal. Ct. App. - Jan. 30, 2026)

The Court of Appeal holds that ZipCar -- which rents cars remotely with no in-person contact -- has no duty to make sure that the person renting the vehicle isn't intoxicated (e.g., by installing breathalyzers in the vehicle). Summary judgment to ZipCar affirmed.

I wanted to comment not on the substance of the opinion, but instead merely about a strange footnote whose presence I didn't understand.

The opening "Factual and Procedural Background" section of Justice Krause's opinion cogently explains both the facts of the case as well as the trial court's grant of summary judgment to defendant. It concludes by saying the following:

"As to any claim of vicarious liability, the trial court found that the Graves Amendment preempted claims based solely on Zipcar’s ownership of the vehicle. Judgment was entered in favor of Zipcar on January 5, 2024.[Footnote 1: "The trial court judge has since retired from the bench."] Tavares filed a timely notice of appeal on February 21, 2024."

Doesn't that footnote seem weird? Does it matter at all that the trial judge subsequently retired from the bench? Why include that fact? Reading the opinion, it just made no sense to me.

I wondered whether there was some controversy or investigation into the trial judge, which the opinion lists as David W. Rosenberg of Yolo. Nope. Judge Rosenberg -- like many judges -- simply retired after he served 20 years and was entitled to his full pension. Nothing unusual at all there.

But the various stories about Judge Rosenberg's retirement said that he announced his retirement in October of 2023 and that it was to be effective at the end of the year. If that's right, though, and if judgment was indeed entered on January 5, 2024, then the trial judge did not "subsequently" retire. He retired before entry of judgment, and someone else must have taken over.

So maybe in an earlier draft of the opinion there was a sentence about the new judge entering judgment based on the previous grant of summary judgment, with a supporting footnote, but that footnote remained even after the underlying sentence was deleted? That's all I can figure. Total speculation, of course.

Anyway: Weird footnote. But, yes, the trial judge did at one point leave the bench.

As, ultimately, they all will.

Brown v. DMV (Cal. Ct. App. - Jan. 30, 2026)

I'm glad that the Court of Appeal came out this way.

If you feel that someone's an unsafe driver -- perhaps due to their age, medical condition, or the like -- you're allowed to report that fact to the DMV. After contacting you and ascertaining the basis for your fears, the DMV may (or may not) ask the driver to provide a doctor's note certifying their medical ability to drive safely. And if the DMV's not happy with the doctor's note, they might ask the driver to retake a driver's test.

The DMV says that you're allowed to make these reports anonymously and that they'll try to keep these reports confidential "to the degree possible." Plaintiff here was one of those drivers, and sues to find out who initially ratted him out.

The Court of Appeal holds that there's no per se right to obtain the identity of the person who reported you to the DMV, and refuses to disclose that information here. That seems to me the correct approach to the various balancing factors.

I might highlight even more than Justice Robie does the need for anonymity here. Perhaps there's some risk of anonymous reporting out of spite or error or the like. But my sense is that a very large number of these anonymous reports come from family members; in particular, adult children who have ample reason to be seriously concerned about the risk of driving by one or more of their elderly parents -- to themselves as well as to the public. You're very rarely going to report your parent, even if it's entirely well founded, if you think it might come back to you.

I've personally seen several examples of children who were seriously, and for good reason, concerned about their parent's driving. Sometimes you can solve these things through persuasion, but a lot of times, you cannot. There's a fair degree of personal pride and freedom involved, after all. My grandmother, for example, lived in Alexandria (Virginia) and one night ended up randomly driving four hours in D.C., entirely lose, before ending up at a Denny's at 2:30 a.m. when a concerned waitress finally contacted my parents. Everyone knew she shouldn't drive, but she was insistent. Their solution was to pull the battery cables from her car and tell her that the car was "broken" and needed to be "fixed" -- a statement that was technically true, and served as a solution for the next year or two (as my grandmother's conception of time at that point was a fair piece off). But if the only solution had been to report her to the DMV, I'm confident that'd have been done. As long as it could be done anonymously.

Lots of families have stories like these. (My wife's aunt, for example, became an absolute terror on the roads during her final years.) The balancing test, in my view, comes out strongly in favor of anonymity.

(And, to be clear, I say this as a declaration of interest. I'm getting up there in age. If anyone in my family ever tries to stop me from driving, I'll be extraordinarily miffed. And out to get them.)

Sellers v. Superior Court (Cal. Supreme Ct. - Jan. 29, 2026)

Every single word of Justice Liu's (unanimous) opinion here makes total sense. Which is not surprising, since you'd reach exactly this result simply by applying -- as he does -- traditional common sense.

It's not a violation of the "open container" law to have tiny, unusable crumbs of marijuana that was spilled onto the back seat of a vehicle. There's no "container" at all. And even though, sometimes, it might violate the law even if there isn't a container -- Justice Liu is exactly right that it'd be silly for "an open bag of marijuana gummies in the center console" to violate the statute but not "the same gummies dumped into the console" -- here, the .36 grams (!) of  “weed crumbs scattered on the rear floorboard behind and under the passenger seat" totally doesn't qualify as something illegal.

It's just common sense. Exactly right. Every word.

Though there's actually one thing I'm not sure is entirely accurate these days.

Justice Liu quotes the Voter Information Packet for Prop. 64 to note that "marijuana is 'most common[ly]' smoked and that users '[t]ypically' smoke only 'dried flowers'." (The opinion mentions this to highlight that the presence or absence of paraphernalia for smoking may be a significant factor in whether the weed is actually usable.) 

Maybe that was true back in 2016, but I suspect that, in the modern era, edibles and other alternatives have taken the lead. Even in 2018, available statistics indicate that only 58% of marijuana use was smoked flower, with edibles, dabs, drinks and other alternatives comprising the remaining 42%. As of 2023, it looks like flower was basically tied with edibles (only 6% higher), and I'd wager a fair piece that the pro-edible trend has only increased since then.

Now, I'm not blaming Justice Liu. He and other other Justices may perhaps not have deep personal knowledge of contemporary marijuana consumption patterns. (Though, who knows: I could be wrong.)

But my own limited interaction with the Modern Youth of California may suggest that dried flower is increasingly old school. It still exists, for sure, as the pungent aroma emanating from the beach parking lot across the street from my house attests pretty much every single sunset. But edibles, FWIW, are the new Thing.

In re Conservatorship of B.K. (Cal. Ct. App. - Jan. 28, 2026)

There are a couple of tangentially interesting things about this opinion. But there's also one thing that is, in my view, demonstrably (and meaningfully) wrong.

It's a conservatorship case where the appellant (B.K.) is an institutionalized schizophrenic and, at the most recent annual hearing, is found at a bench trial to still be gravely disabled. Appellant contends on appeal that she didn't properly waive her right to a jury trial, but the Court of Appeal affirms.

The two tangential things first.

First, the Court of Appeal drops a footnote that refers expressly to appellant's appointed appellate lawyer (though not by name). The Court of Appeal concludes that the proper resolution of this appeal is largely controlled by a prior case, Conservatorship of C.O. (2021) 71 Cal.App.5th 894, 904 (C.O.). Here's what the Court of Appeal says in footnote 5:

"B.K.’s appellate briefing cites C.O. only in a “but see” parenthetical about harmless error. We remind B.K.’s counsel, that “[a]ttorneys are officers of the court and have an ethical obligation to advise the court of legal authority that is directly contrary to a claim being pressed.” (In re Reno (2012) 55 Cal.4th 428, 510, superseded by statute on other grounds as stated in In re Friend (2021) 11 Cal.5th 720, 728.) We trust that counsel will meet this ethical obligation in all future briefing."

A subtle (or perhaps not-so-subtle) reminder.

Second, I just thought it was interesting how the whole waiver thing works out. As a reminder: B.K. is schizophrenic. So her reasoning process is less than perfect. The Court of Appeal is ultimately right that, on the day of trial, B.K. personally waived her right to a jury trial. Here's what she said at that point:

“Ms. Altes: So we had a conversation about court versus jury trial and that we would have the court trial today, and I believe [B.K.] would like to have her trial today which would mean it would be a court trial.

[B.K.]: Yeah. 

The court: Okay. So that means you are waiving and giving up your right to have a jury trial to have a court trial today with me; is that right? 

[B.K.]: Right. 

The court: Counsel joins? 

Ms. Altes: Yes.”

Yep. That's a waiver.

But contrast that brief waiver to B.K.'s prior, quite expansive and deliberate, previous demands for a jury trial in the underlying case, just four months previously:

“The court: [B.K.], we are here to see whether or not you want to stay on conservatorship for another year and have [M.G.] remain your conservator. What do you think? 

[B.K.]: No. I want a jury trial. 

The court: okay. So that means you want to get off conservatorship, you don’t want [M.G.] to remain as your conservator, and we have a trial, right? 

[B.K.]: I want a jury trial. [¶] . . . [¶] 

The court: Why would you like to have a jury trial instead of a court trial? It is your choice. I just want to know the reason.

“[B.K.]: I want a jury trial because I want to get off conservatorship. 

The court: Okay. 

[B.K.]: I want a jury trial. 

The court: Okay.”

That's pretty darn clear, no? I just thought it interesting that we're happy with a two-word waiver from a schizophrenic who's admittedly hearing voices when she's previously expressed clearly and at length why she most definitely wants a jury trial.

Oh, and maybe this is "Third," but just as a general matter, I thought that the opinion gave an interesting insight into the internal thought process of B.K. when it recounted some of B.K.'s trial testimony. Here's a part:

"B.K. also testified on her own behalf. She stated that her medications had no effect other than causing unpleasant side effects. She also testified, “I like the voices” and “I want to keep the voices.'"

Classic line. "I like the voices."

Okay, now to the doctrinal part. The part I sincerely hope that Justice Collins removes from the opinion.

Here's the very last paragraph:

"Even if we were to assume for the sake of argument that an additional advisement was required before the court accepted B.K.’s waiver, any error was harmless. (C.O., supra, 71 Cal.App.5th at p. 919 [applying a harmless error analysis]; People v. Sivongxxay, supra, 3 Cal.5th at p. 187 [same].) Under the harmless error standard, B.K. must show that it is reasonably probable that a result more favorable to her would have been reached in the absence of the error. (C.O., supra, 71 Cal.App.5th at p. 917.) B.K. has not made such a showing. B.K. does not challenge the court’s finding that she was gravely disabled, which was supported by the testimony of Dr. Arom and B.K. herself. There is no suggestion that a jury trial, had B.K. chosen one, would have resulted in a different outcome. B.K. therefore has failed to demonstrate reversible error."

With utmost respect to Justice Collins and her chambers, that's 100% wrong.

When you're deprived of a jury trial, that's categorically structural error, and is not subject to harmless error review. That's because, among other things, we can never tell for sure what a jury would have done as opposed to a judge. That's blackletter law. By contrast, the two cases that Justice Collins cites both hold that inadequate advisement of the right to a jury trial is subject to harmless error review if the evidence is clear that the defendant would have waived their jury trial right anyway. That's crystal clear from Sivongxxay and C.O. themselves. (Sivongxxay: "This assessment entails a review of the record to ascertain whether it reveals a reasonable probability that the defendant would have opted for a jury trial . . . [W]e consider what the defendant would have done, not what we believe he should have done. . . . In conclusion, because the record before this court on appeal provides no basis for concluding that defendant would have chosen a jury trial . . . we find the error harmless under the Watson standard." C.O.: " We also see nothing in the record suggesting that C.O. would have elected a jury trial over a court trial if the trial court had advised him personally at the court proceeding of his right to the former. The omission of the jury trial advisement was harmless on this record.").

Today's opinion finds harmless error because it thinks that there's no evidence that a jury would have decided differently than the judge. But that's always the case: the whole point of structural error is that we don't want judges -- appellate or otherwise -- deciding whether a jury would have found the same way as a judge, and also don't think that doing so is even possible. The whole point is that juries and judges are different. It may be harmless error, as in Sivongxxay and C.O., if the defendant was going to waive a jury trial right anyway, regardless of the error. But that's radically different than how the Court of Appeal finds harmless error here.

Now, I think I understand why the last paragraph goes astray on this point. For one thing, harmless error is a complex and multifaceted issue, and it's easy to get confused on precisely which of the various trial components constitute structural error or not. For another, there's a loose sentence in C.O. -- before the critical harmless error analysis I quote above -- that does indeed say that there's no reason to believe that a jury trial would have come out very different. To be honest, that sentence shouldn't have been in C.O. either, but regardless, it's not the holding, nor would reliance upon it be an accurate statement of the law. Still, I could see how someone might potentially get confused, and think that harmless error analysis in this context meant X (what would happen on the merits at a jury trial) when it actually means Y (what would happen vis-a-vis the defendant's choice of judge versus jury if there was no error).

But to reiterate: It definitely means Y. 

If you are deprived of your right to a jury, we don't say "Oh well, the result would have probably been the same anyway; it's not like the Sixth Amendment is a big deal or anything." And were the law to the contrary, pretty much every deprivation of the right to a jury trial would be harmless, since defendants can rarely (if ever) demonstrate that the result would have been different. We instead find harmless error only if you would have waived your jury trial right anyway. If so, it's harmless.

So I hope that the Court of Appeal deletes the last paragraph. Yes, it's technically dicta. But it's also doctrinally wrong, and I would hate for future opinions to rely on that paragraph -- or make the same mistake.

Matthews v. Ryan (Cal. Ct. App. - Jan. 28, 2026)

I agree with Justice Bendix that the appellant forfeited any objection to the way prospective jurors were seated in this matter. But particularly since what happened below appears to be the typical way the trial judge here seats jurors, it might have been worth adding something like the following line in the opinion:

"We emphasize, however, that it is not proper for the trial court to ask for 'volunteers' to sit on the jury rather than calling the prospective jurors by number. We reiterate that random selection of jurors is a firm and sound policy mandated by the Legislature. The clerk must randomly select the names of prospective jurors for voir dire. Trial courts should not utilize -- and parties should promptly object to -- any variation from this procedure."

Siam v. Superior Court (Cal. Ct. App. - Jan. 27, 2026)

The Ninth Circuit has been fairly silent recently; only one published opinion in the last six days.

Fortunately, the Court of Appeal is still busy cranking things out. (Though nothing yet today) 

I wanted to briefly mention this opinion from yesterday, because I definitely had conflicted opinions about it. The Court of Appeal grants the petition and orders the trial court to reconsider its refusal to grant mental heath diversion, and I understand and appreciate why it did so. At the same time, as I said, I'm torn.

On the one hand, the petitioner clearly has a mental health problem. That's the whole point of diversion; to try to get the underlying problem treated, rather than just throwing the person in jail.

On the other hand, those underlying mental health problems are clearly causing problems for society -- and particular victims -- as well. This was not a one-off event. Or, more accurately, it was a one-off event, and the petitioner got pretrial diversion for that, but that didn't solve the problem. So do we really want to keep granting pretrial diversion in such settings?

It's not a situation involving incredibly serious bodily harm, but nonetheless, people are getting injured. Here's his first offense, in San Diego, for which he received pretrial diversion:

"In the early morning hours of August 5, 2020, San Diego Harbor Police received a call from a taxi driver who reported a man who was his passenger, later identified as Siam, struck him three or four times in the back of the head with a skateboard and then fled by jumping out of the moving taxi. A little more than ten minutes later, police received a call from a hotel indicating a man matching the description given by the taxi driver was screaming and pressing the fire alarm in an elevator. When officers arrived at the hotel, they found Siam naked, laying on his stomach inside the elevator with his eyes closed and hands behind his back. He was “sweating profusely” and “yelling unintelligible phrases.” While being transported for medical evaluation, Siam spontaneously told the paramedic “he hit the cab driver in the head with his skateboard, jumped out of the moving vehicle, jumped off a bridge at the airport, and ran across the street.” He also said “he took off his clothes in the elevator because people told him to and that he had breathed in meth particles in the air.”

Here's his next offense -- the one at issue in the current appeal -- which transpired 19 months later:

"Around 9:20 a.m. on March 10, 2022, City of Newport Beach police received a phone call from employees of a car dealer who reported a man, later identified as Siam, entered their showroom, caused damage to a Rolls Royce, and then fled. When officers arrived on the scene, an employee explained Siam entered the showroom barefoot and said he wanted to buy a car with cash. He was fidgety and acting erratic. When asked which one he wanted to buy, Siam replied, “all of them.” He then asked if he could see inside a Rolls Royce parked in the showroom and became fixated on the hood ornament which appeared when the vehicle was unlocked. Siam proceeded to “rip[] it off the hood of the vehicle.” When asked why he did it, he made “a variety of statements that did not make any sense and stated that his father would pay for the damage[].” The employee was able to get back the hood ornament before Siam left. Officers were given video footage of the incident. 

About 40 minutes later, around 10 a.m., Newport Beach police received another call about an incident involving a man who was later identified as Siam. A 60-foot yacht had been stolen from a dock in Newport Beach harbor and witnesses observed the yacht crash into docks and other moored boats, do two large loops while going full speed in reverse, and then proceed forward toward a bridge. It ultimately crashed into a seawall and stopped in the middle of the channel. Officers who reached and boarded the yacht shortly thereafter found Siam near the helm and “acting very erratic.” They arrested him without incident. While being transported, Siam “spontaneously stated he had taken Xanax and had drank multiple alcoholic beverages.” . . .

One person was injured during the incident. Specifically, a woman was in the galley of her sailboat when it was hit by the stolen yacht. The side of the boat “crashed in on her[,] throwing her down to the deck” and causing her to contact various solid objects, including a stove. She was again knocked down when her boat’s mast collapsed. Later that day she sought treatment at a hospital for a concussion, contusions to the back of her head, and bruises on, and pain in, various parts of her body."

Thoughts?

Is this a case where, yeah, pretrial diversion still makes sense -- because, clearly, the guy continues to have mental health problems? Or is this a case where, regardless of those underlying conditions, the petitioner simply needs to be locked up to prevent future victims?

Tough call, at least for me.

In re Marriage of Starr (Cal. Ct. App. - Jan. 22, 2026)

I liked this opinion by Justice Goldman. Really well done.

It's a divorce case in which the wife says that the date of separation is 2012 but the husband says it's 2020. They're ready to go to trial on the separation date issue when the trial judge sua sponte notices that the wife's divorce petition alleges a separation date of 2020 as well, so holds this to be a judicial admission of the relevant date and enters judgment accordingly.

The Court of Appeal says: No dice. Which, in my view, is exactly the right result. We're not England in the 1700s. We prefer adjudication on the merits, not pleading errors. Both sides knew for years that the wife was claiming a 2012 separation date, and both sides were ready to dispute that issue at trial. No reason to hold the wife to an erroneous date in her pleading. (Justice Goldman gets there a slightly different way, but we end up in the same place.)

Plus, I think the Court of Appeal was right to not reassign the matter to a different judge on remand. I'm not extraordinarily pleased by what it seems like to me was the trial judge's penurious take on pleadings and the need to avoid a trial that everyone was completely ready for. But that doesn't establish bias or any reason for a new judge. Just try again.

On an entirely different note, as I read the opinion, I was struck -- and had a particular reaction -- to the wife's selection of counsel here. In 2020, she initially files for dissolution pro per. Then, in early 2021, she hires her first attorney, Fox & Bank, who substitutes in. The next year, in 2022, she decides to retain new counsel, Lisa Radcliffe. Only a month later, she hires yet new counsel. Then, the next year, 2023, she retains new counsel yet again. Can you guess what happens in 2024, as the case is about to go to trial? Yep. She retains new counsel again. Oh, and when she loses below, on appeal, it looks like she retains new counsel yet again.

When it's a divorce case and one of the spouses hires a new lawyer every single year, for a total of around a half dozen of them, I have a particular view of both the litigant as well as the underlying litigation. For whatever that's worth.

Oh, and I'm not sure what's up with the Court of Appeal only referring to the last three of the wife's lawyers by their initials -- "M.C.", "J.R." and "C.L." I'm sure they're not minors. I'm confident there's no allegation of sexual abuse by the attorneys or anything like that. And the opinion expressly mentions the full name of the other lawyers. I wonder what the deal is there? Seem strange.

Nonetheless: A well-written and persuasive opinion that seems to me to obtain an entirely just result. (Even if, on remand, I gently suspect that the losing party on appeal will probably end up prevailing on the merits.)

N.D. v. Superior Court (Cal. Ct. App. - Jan. 20, 2026)

The Court of Appeal sanctions Las Vegas attorney (and member of the California bar) T. Matthew Phillips $25,000 based upon a series of vociferous yet unsupported claims that he made in a petition for writ of mandate. That's a fair hunk of change. But that sanction, including its size, seem eminently warranted to me.

The Court of Appeal's opinion explains at some length the particular statements for which Mr. Phillips deserves sanctions, but the basic summary is this:

"We are particularly concerned with Phillips’s disregard of his duty to uphold the respect owed to the judiciary. It is one thing to assert in a petition that the trial court committed error. An attorney acts well within their duty as an advocate to raise good-faith arguments challenging rulings, even when it presents an uphill battle. There is nothing inherently improper about making allegations of bias or discrimination against a trial court. . . .

But what attorneys cannot do is what Phillips did here: make serious accusations of impropriety against the court without a scintilla of supporting evidence. Phillips did not simply argue the trial court was wrong. He accused the trial court of being an active participant in a conspiracy with opposing counsel to intentionally deprive N.D. of her rights."

I was even more convinced that the Court of Appeal's sanctions against Mr. Phillips were justified when I did a little digging and found this Order, in which the Nevada judiciary declared Mr. Phillips to be a vexatious litigant and described -- in 46 pages, no less -- the wide variety of his repeated misconduct that led to that Order.

Even without knowing about that prior Order, which was issued last year (from a different jurisdiction), at the end of its opinion, the California Court of Appeal refers the matter to the California bar. Entirely appropriately.

Let's hope the bar does something. Quickly.