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

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

That's a long time.

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

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

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

Nicely put. And I love the last sentence.

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

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

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

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

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

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

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

Interesting stuff.

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

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

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

There you have it. Seemingly straightforward.

Except, of course, for the resulting lawsuit.

Which lasts way, way longer.

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

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

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

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

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

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

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

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

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

Plus taking away all your social media accounts.

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

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

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

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

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

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

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

And now reverses.

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

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

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

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

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

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

Anyway, here's the rule:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indeed, did so fairly unambiguously.

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

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

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

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

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

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

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

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

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

Okay. Fair enough.

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

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

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

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

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

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

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

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

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

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

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

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

Ugh.

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

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

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

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

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

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

Well played, scammers.

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

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

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

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

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

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

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

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

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

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

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

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

Otherwise you'll likely receive a lengthy prison sentence.

Not worth it.

On many levels.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To be determined.

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

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

Judge Lee provides.

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

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

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

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

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

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

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

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

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

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

But still. Seems like a sound plan.

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

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

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

The former would seem fairly inimical to entrepreneurship, no?

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

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

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

Thanks for that, Justice Hoffstadt.

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

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

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

That's too late. Arbitration waived.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

But I doubt it.

Four paragraphs. 367 words.

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

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

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

They almost made it.

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

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

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

Still might, of course.

But, for now, it stands.

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

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

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

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

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

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

Here's my take:

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

You can't just call in for a warrant?

Apparently not.

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

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

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

Get a warrant.

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

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

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

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

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

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

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

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

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

Irony indeed.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Again: Extremely well done by Justice Richman.

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

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

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

But here's the problem:

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

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

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

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

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

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

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

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

By a fair piece.

AirDoctor LLC v. Xiamen Qichuang Trade Co. (9th Cir. - April 11, 2025)

The practical lesson from today's (sole) Ninth Circuit published opinion is that your federal complaint for damages shouldn't request an actual numeric amount, but should instead request damages "in an amount to be proven at trial." That way, in a default judgment, you're not limited to any specific amount pursuant to Rule 54(c), but rather can obtain whatever damages you can prove up. Whereas you'd be limited to the specific amount you requested if you actually set it forth in your complaint.

I'm fine with that rule. Makes sense to me. (Though the district court thought otherwise.)

The only weird thing about the opinion is its composition. The opinion is unsigned and per curiam. But two of the three judges -- Judge Berzon (joined by Judge Kennelly, sitting by designation from the Northern District of Illinois -- write a concurrence that just basically explains at length why the result of the per curiam opinion is correct.

Huh?

The only way I can rationally explain that outcome is to speculate that the third member of the panel, Judge Friedland, wrote the bench memorandum, was assigned the opinion, but then wrote language or reasoning that the other two didn't like -- and the collective crew couldn't compromise. Hence the two similar, but not identical, writings.

In any event, the practical result is the same. Just ask for damages in an amount to be proven at trial.

In re L.H. (Cal. Ct. App. - April 9, 2025)

The first line of this opinion says:

"The juvenile court committed L.H. to a secure youth treatment facility after he pled no contest to committing first degree murder."

I'm sure that the relevant terminology is old hat to people in the juvenile justice field, but for generalists like myself, the term "secure youth treatment facility" has an aspect of 1984-like doublespeak. We don't call it a prison. It's solely for "secure youth treatment." With emphasis on the "treatment" part, of course.

Even though I suspect that the "treatment" part plays much less of a role, in reality, in these places than the "secure" (e.g., prison) part.

Odom v. Los Angeles Community College Dist. (Cal. Ct. App. - April 7, 2025)

To say that the Court of Appeal was nonplussed about the conduct of the trial judge in this case would be a substantial understatement.

The Court of Appeal reverses a $10 million verdict in favor of the plaintiff in this sexual harassment case and remands for a new trial. Justice Grimes' opinion repeatedly calls out the trial judge, Judge Draper, by name in the opinion.

You can get an accurate sense of the tone and content of the opinion from its very first page, which says:

"This is an unusual case, due to the significant arbitrary and prejudicial evidentiary rulings of the judge presiding over the trial. After the judgment was entered, defendants filed motions for a new trial (or in the alternative a remittitur) and for partial judgment notwithstanding the verdict (JNOV) (or in the alternative for remittitur). At the hearing on those motions, which were denied, the trial judge initiated extended, bizarre personal comments on racial matters with newly substituted defense counsel (the only Black woman in the courtroom), despite there being no racial issue of any kind in the case. Defendants filed a motion to disqualify the judge for cause and to void his rulings on the motions. After writ proceedings and referral to a neutral judge, the trial judge was disqualified and his rulings on the postjudgment motions were voided.

On this appeal from the judgment, we need not decide whether the trial judge’s prejudicially erroneous evidentiary rulings during the trial were motivated, in part, as defendants contend, by “persistent racial and gender bias.” It seems clear the judge’s rulings were motivated by personal opinions untethered to the rules of evidence. Whatever his motivations may have been, the judge admitted inflammatory evidence without consideration of the evidentiary rules, with undeniable prejudicial effect, thus preventing a fair trial. We accordingly reverse the judgment and order a new trial."

The remaining 38 pages contain more of the same, only with additional (excruciating) detail.

The opinion then ends with this:

"On a final note, while we do not know whether, as defendants contend, Judge Draper’s “persistent racial and gender bias” motivated his rulings at trial, we cannot rule out that possibility in light of the extreme and bizarre comments he made at the posttrial motions hearing and his ensuing disqualification for cause. We need not decide whether bias was the reason for his arbitrary and capricious evidentiary rulings; the rulings were an abuse of discretion irrespective of his motivations. One thing we can say for sure is, the rulings were not motivated by a devotion to the law of evidence."

It's possible that I've previously seen a Court of Appeal opinion that was harsher in its treatment of the trial judge. But if so, I definitely don't remember it.

Wow.

People v. McGhee & Jasso (Cal. Supreme Ct. - April 3, 2025)

It's a rare day when you simultaneously have joy and disappointment on death row in San Quentin. But today is one of those days.

Christopher Jasso gets his conviction and death sentence unanimously affirmed. Killing a taxi driver in cold blood for a robbery, and then consistently attacking other inmates before the penalty phase, is not the soundest strategy for obtaining your freedom.

By contrast, Timothy McGhee's conviction and death sentence are unanimously reversed. He allegedly killed -- or at least ordered the killing -- of a plethora of people. But the trial court dismissed a juror who, essentially, just didn't believe the prosecution's case. The juror didn't refuse to deliberate or anything. He just consistently and pervasively disbelieved the prosecution's witnesses. That's not enough to get you booted off a jury, hence the result.

So a split result, on balance, for that particular group of inmates up north.

Krug v. Board of Trustees of Cal. State Univs. (Cal. Ct. App. - April 1, 2025)

There are lots of reasons why it's better to be employed by a private university rather than a public one. Add this to the list. The Court of Appeal holds that Section 2802 of the Labor Code, which requires employers to reimburse employees for their reasonable on-the-job expenses, doesn't apply to state employees, including faculty at public universities.

There are other ways, of course, in which teaching at a public university is superior; in particular, in the protections afforded by the First Amendment and the Due Process Clause, which apply in public schools but substantially less so in private schools.

Still. Definitely not perfect to be on the faculty at a public university. Lots of downsides. 

(Admittedly: Still a great job, though.)

Winter v. Menlo (Cal. Ct. App. - April 2, 2025)

Yeah, sorry. It's a conflict. You're disqualified for that.

Justice Viramontes' opinion is 30 pages longer than that, and has more exhaustive detail, but honestly, it's to the same effect.

Miles v. Gernstein (Cal. Ct. App. - March 31, 2025)

I'm 100% down for this decision. Seems eminently correct both as a legal and equitable matter. If you want to be a surrogate with no relationship whatsoever to the resulting child, and the other person is okay with that, so be it. We'll enforce that agreement.

Even if you change your mind seven years later.

People v. K.D. (Cal. Ct. App. - March 28, 2025)

This is a tough situation all around, honestly.

F.P. is driving a car with tinted windows in Ukiah and leaves the vehicle to run a (hopefully super quick) errand. She leaves the keys in the vehicle. Oh, also, in the back seat, she leaves her one year old son.

Fear not. The child is fine.

But shortly after F.P. gets out of the car, K.D. -- a 29-year old woman -- hops in, hits the gas, and drives away.

It's unclear whether K.D. knows that the baby is in the vehicle at the time she steals it. Regardless, it's still grand theft, and maybe kidnapping as well. Thankfully, the vehicle gets recovered fairly rapidly, around two miles away, and the baby is okay.

Here's the thing about K.D., though. She's really quite intellectually challenged. I mean: A lot. Here's some of what the opinion says in this regard:

"Dr. Holden evaluated defendant in July 2021 and concluded that she was not competent to stand trial. He opined that defendant “[fell] far short of the legal standard for competency to stand trial, having little factual and rational understanding of legal proceedings and an impaired ability to consult with her attorney in conducting a rational defense.” . . . .

Dr. Wright observed that defendant had dropped out of school in sixth grade, she was not able to write a grammatically correct paragraph or read an analog clock, and she did not know the months of the year. She scored “[e]xtremely [l]ow” on scales of verbal comprehension, perceptual reasoning, working memory, and processing speed. Her percentile ranks ranged from 0.1 to 2, and her performance placed her full scale I.Q. at 55 (0.1 percentile)."

So, on the one hand, you can potentially put K.D. in a diversion program for that. Since, honestly, she clearly needs a ton of help, and just dumping her in the hoosegow probably isn't going to help things much.

At the same time, though, this was a serious offense -- the baby could have been physically hurt, after all, and the mother was surely traumatized -- and this is also most definitely not K.D.'s first run-in with the law:

"The prosecution filed a declaration opposing diversion. The prosecution cited the victims’ trauma, RCRC’s original recommendation against diversion, defendant’s “conscious deceitfulness” in giving false names to police, her criminal history, and the violent nature of the crimes charged; the prosecution further argued that defendant was a flight risk. The prosecution maintained that the facts of the crime alone should cause the court to determine the offenses defendant committed were not worthy of diversion, and the prosecution concluded that “[t]he time has come for real and meaningful consequences for this defendant that can only be realized by more restrictive and punitive measures, not less.” . . . .

Defendant’s criminal record consisted of seventeen misdemeanor convictions and one felony conviction in the counties of Fresno, Tulare, and Madera between June 2009 and September 2019, including receipt of a stolen vehicle, drug possession, using or being under the influence of a controlled substance, possession of drug paraphernalia, disorderly conduct, and providing false identification. Defendant’s 2018 felony conviction was under section 496d. Defendant had been granted probation numerous times, including formal probation for her felony conviction, and her probation had been revoked eight times. She had two outstanding bench warrants related to misdemeanor charges in Tulare County. While on felony probation, defendant had not stayed in contact with probation as directed, and she failed to follow through with any court-ordered rehabilitative services."

A toughie for sure.

Honestly, I'm glad I wasn't responsible for deciding this one. Either in the trial court or on appeal. It's not one where I have a definite and firm conviction about which way to go.

Something to think about over the weekend, perhaps. 

American Federation v. City of Los Angeles (Cal. Ct. App. - March 27, 2025)

I definitely know that the last line here sometimes appears in the opinion itself, but do not recall seeing something like this in the actual caption:

"ORDER MODIFYING OPINION AND DENYING PETITIONS FOR REHEARING; THERE IS A CHANGE IN APPELLATE JUDGMENT"

(Capitalization and bold in the original.)

Do you really say that last part in the caption itself?

Not that it matters, of course. Just wondering.

In re J.D. (Cal. Ct. App. - March 25, 2025)

Stealing a cell phone from one person at the shopping mall at 2:30 p.m. is a different offense than punching someone 5:00 p.m. at that same shopping mall and stealing their cell phone as well. The prosecution can charge those offenses separately. 

So holds the Court of Appeal, in an opinion that is both concise (seven pages) and sensible.

It might be one thing if both offenses involved solely the stealing of a phone, or if both offenses involved solely punching someone. (Even then, reasonable minds might disagree about whether that's one offense or two given the two-and-a-half hour gap between the crimes.) But punching someone and stealing their phone is definitely different than simply stealing someone else's phone two and a half hours earlier.

Makes sense to me.

In re H.M. (Cal. Ct. App. - March 24, 2025)

From today's opinion:

"In April of 2023, the department responded to a referral that mother and newborn H.M. both tested positive for 'Cannabinoids/THC and amphetamines.' Mother denied substance use and declined to provide a urine sample. Father acknowledged knowing that mother used methamphetamine throughout her pregnancy. Father tested presumptive positive for amphetamines, methamphetamines, and THC, which he claimed was due to having had sex with mother, who was using drugs. H.M. was placed into protective custody. . . .

In May of 2023, the department met with mother and father to discuss paternity. Both acknowledged that father was not H.M.’s biological father, although he did sign the appropriate paperwork at the hospital that he intended to be H.M.’s father. Mother refused to say who the biological father was. . . .

[B]oth mother and father refused to sign any substance use testing guidelines and were not participating in random testing. Both had tested positive for amphetamines and methamphetamines, and presumptively positive for THC on three separate occasions. . . .

On June 8, 2023, the department attempted to contact H.M.’s other potential biological fathers. One, Benjamin D., stated he was not interested in ascertaining whether or not the child was his and did not want to become involved in the case. The department was unable to locate another, Justin M. The third, Ruben D., was in custody in jail and refused to take a DNA test, stated there was no possibility that he was the father. . . .

On July 18, 2023, mother completed a psychological review stating that her adoptive mother passed away when mother was 14; her adoptive mother’s brother, who mother considered a father figure, had passed away from cancer; and her sister had died from a fentanyl overdose. Mother stated that she did not really know her biological family and felt that her cousins were strangers. . . .

The six-month review hearing report recommended . . . that family reunification services be terminated for both mother and father and a section 366.26 hearing be set. Neither mother nor father had followed through on the reunification plan."

Lovely all around.

(From Tuolumne County, if you're wondering. Largest city: Sonora, population 5003.)

Mayfield v. City of Mesa (9th Cir. - March 24, 2025)

Maybe everything didn't go perfectly 100% smoothly, but I have to agree with Judge Collins that it went sufficiently fine such that the DUI stop of Ms. Mayfield, who was deaf, didn't violate the Americans With Disabilities Act even though she wasn't provided with a sign language interpreter. She sufficiently understood everything via messages typed on the officer's cell phone plus a little bit of writing, gestures, lip reading and the like.

Here's another example of where body worn cameras help out a lot; in this case, in the police officer's favor.

(Plus, as an aside, I thought it fairly favorable for Ms. Mayfield that they let her plead down to reckless driving as opposed to an actual DUI.)

Escamilla v. Vannucci (Cal. Supreme Ct. - March 20, 2025)

I'm happy that the case came out this way, and I think it's the right rule. But unlike the California Supreme Court, I don't think that's what the statute actually says.

It's a statute of limitations questions. Everyone here knows that there's a special one-year SOL for clients who want to sue their lawyer for malpractice etc. At the same same time, there's a residual two-year SOL for regular old torts. (I'm simplifying things, of course; there are complexities, tolling provisions, etc.)

Which one of these applies when a non-client wants to sue a lawyer for alleged professional misconduct by that lawyer (here, alleged malicious prosecution)? One year or two years?

The Courts of Appeal had split on this issue, so the California Supreme Court helpfully granted review.

Here's the relevant one-year statute. Read it. When a non-client sues a lawyer for conduct that (admittedly) arises out of the lawyer's provision of professional services (e.g., filing a lawsuit), does it apply?

“An action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.”

The California Supreme Court declares that this statute is "ambiguous" in the setting presented, and on that basis, it looked to legislative history, policy and purpose to hold that the two-year statute, rather than the one-year statute, applies.

By contrast, I don't think that the actual text of the statute is "ambiguous" at all.

The case before the California Supreme Court involved a malicious prosecution cause of action: a claim that an attorney wrongfully filed a lawsuit against a non-client. That lawsuit is surely "an action against an attorney." It indisputably arises out of an alleged "wrongful act omission . . . arising in the performance of professional services" (i.e., filing a lawsuit). Everyone agrees that the lawsuit is not for "actual fraud." And no one even asserts that the action was commenced more than a year after the "plaintiff" (the non-client) discovered or should have discovered the wrongful act.

Those are the words of the statute. Under the text, the one-year statute applies.

The California Supreme Court says that the statute is "ambiguous" because it doesn't expressly say whether it applies solely to lawsuits filed by a client or whether it also applies to lawsuits filed by non-clients. But I can't figure out which word of the statute is even arguably ambiguous. "Plaintiff" means plaintiff. That meaning word doesn't depend on whether the plaintiff is a client or non-client of the lawyer. So if you follows the actual text of the statute, I think it's dispositive.

To someone like me, mind you, that's not necessarily the end of the inquiry. Even if the words (the "command") of a statute aren't ambiguous, in my opinion, we can still look to structure and purpose to figure out whether those words really mean what they say. And I agree with the California Supreme Court that the Legislature did not, in fact, mean to apply that one-year statute of limitations to lawsuits (like here) that involve non-clients.

I just don't think it's really true that the statute is textually "ambiguous." I think that's a construct. I think that the text is really quite clear, but in the modern textualist era, the Court has said so many times that unambiguous text is the be-all-end-all that there's no way to doctrinally come out the correct way here unless the Court says that the text is instead ambiguous. So, okay. Presto: "The text is ambiguous." Now we can interpret the statute in a way that the Legislature likely intended and that makes the world a better and more rational place.

One more thing. I think I've got an even better analogy/hypothetical than the Court introduces here -- or at least an additional one.

Once it finds the statute purportedly "ambiguous" and thus may permissibly assess policy and intent, Justice Corrigan concludes her opinion by saying that "[o]ur construction of section 340.6 avoids the potential unfairness that would arise from applying different statutes of limitations to claims for the same alleged misconduct depending upon whether the suit is brought against an attorney or client." She then discusses examples of that type of unfair (or at least irrational) disparity, including a complicated three-page discussion of how tolling principles would apply to clients versus non-clients in various settings.

Here's an even more straightforward example that came to my mind of the problems of reading the one-year statute literally.

Imagine that a lawyer is late for a scheduled hearing, speeds to get to the proper department, and while turning a hallway corner (or perhaps even while driving to the courthouse), accidentally hits someone, seriously injuring them. The resulting negligence cause of action would be (1) "an action against an attorney," (2) "for a wrongful act or omission," (3) "other than for actual fraud," (4) "arising in the performance of professional services" (i.e., speeding to court). So the one-year statute textually applies. But if it was a non-attorney who did the same thing, the usual two-year statute would apply.

Why would the victim care whether she was hit by a lawyer or nonlawyer? Why should the limitations period be shorter if the person hit happened to be a client? How would the victim even necessarily know whether the person who hit her was a lawyer or not, and hence whether the one-year statute applied? (There's no tolling period in the one-year statute for not knowing that someone's a lawyer.) If the lawyer hit two people -- one a client, one a non-client -- would two different statute of limitations really apply? If the lawyer was driving a car (or Segway) owned by a non-lawyer, would a different really apply to the claim against the lawyer versus the owner of the vehicle? All of these potential distinctions would seem silly, bizarre and irrational.

So I'm on board for applying the two-year statute to claims, as here, by non-clients.

I just wouldn't say that I was doing so because the statute was textually "ambiguous." Because I can't find a word, or phrase, in the statute that actually is.

U.S. v. Parvis (9th Cir. - March 19, 2025)

Masha Parvis goes to Texas to kidnap her biological daughter, over whom her parental rights had been terminated and who's with a foster family who's gotten a restraining order against Ms. Parvis. Her goal is to kidnap the kid and take her out of the United States forever. To do so, Ms. Parvis need to get the kid a passport, and she does so, by lying on the child's passport application in various ways (e.g.., by saying the kid is severely ill and that Ms. Parvis is still her legal mother, which she's not).

Ms. Parvis gets arrested when she goes to steal the kid. Texas prosecutes her for attempted kidnapping, and the United States thereafter prosecutes her for lying on the passport application.

Her state court sentence for attempting to kidnap the child? Less than two years. Out in one.

Her federal sentence for false statements on a passport application? Three years.

Doesn't it seem like you should (maybe just maybe) get more prison time for trying to kidnap a child than for lying on a passport application?

People v. Padron (Cal. Ct. App. - March 17, 2025)

This is bold.

You get to withdraw your prior guilty plea in California if you can establish that you didn't understand at the time the prior immigration consequences of that plea. You don't have to prove ineffective assistance of counsel; it's enough that you personally didn't understand them.

Misael Padron files a declaration that says basically exactly that. He pled no contest to carjacking in a case in which he pretty definitely was going to get convicted. He faced a potential sentence of 10 years, but due to his plea, he only got three. In return for the carjacking plea, the prosecution dismissed charges of theft of a motor vehicle, vandalism, and hit and run with property damage, charges that almost certainly would have stuck if Mr. Padron had gone to trial.

The problem for Mr. Padron is that he's not a citizen, and instead got asylum from Cuba, and a conviction for carjacking results in mandatory deportation.

So six years after his conviction, in 2022, he moves to withdraw his plea. He submits declarations from himself and some other witnesses claiming that he didn't understand that he'd be deported if he pled no contest, and a declaration from an attorney that said that there were some lesser charges that he could have potentially pled guilty to that wouldn't have resulted in mandatory deportation.

The trial court denies the petition. The Court of Appeal reverses, and orders the trial court to grant the petition and vacate the convictions.

Here's the evidence on which the trial court found that Mr. Padron did, in fact, understand the immigration consequences of his plea deal (notwithstanding his contrary declaration):

(1) Mr. Padron signed and initialized a plea form, also known as a Tahl waiver, titled “Immigration Consequences" that expressly said: “I understand that if I am not a citizen of the United States, I must expect my plea of guilty or no contest will result in my deportation, exclusion from admission or reentry to the United States, and denial of naturalization and amnesty.”

(2) At the plea hearing, in open court and on the record, the prosecutor told Mr. Padron: “If you are not a citizen of the United States, your conviction in this case will result in your removal, deportation, exclusion from the U.S., and denial of naturalization."

(3) At that same plea hearing, on the record, the prosecutor asked Mr. Padron: "Have you discussed the immigration consequences with your attorney?” Padron responded that he had. 

(4) At that hearing, the prosecutor also said to Mr. Padron: “[D]o you understand that the district attorney’s office will not extend an offer that has no immigration consequences?” Padron answered yes.

(5) Mr. Padron offered no testimony or declaration from his public defender, but that attorney's notes from shortly before the plea deal was accepted state that Padron “now wants . . . offer of 3 yrs. state prison (on ct. 1 (P.C. 215(a) only) . . . even though [defendant] knows (and fully advised) that ct. 1 is a ‘future’ strike and is a ‘violent’ offense.” The attorney's notes also reflect that Padron accepted this plea on May 9, 2016 and was “advised of potential imm. csqs.”

(6) There's little to know hope that had Mr. Padron elected to go to trial, he'd have avoiding being found guilty of carjacking anyway given the substantial evidence against him. Nor is there any real reason to believe that the prosecutor would have offered a plea deal that didn't involve Mr. Padron being subject to deportation. Mr. Padron was a three-striker, having served two prior felony terms in prison, and the prosecutor expressly said during the plea hearing that the officer would never give him an "offer that has no immigration consequences."

Given this evidence, you can see why the trial court might well have decided that Mr. Padron did not meet his burden of proof to establish that he was, in fact, ignorant of the immigration consequences of his plea. Or at least I can.

The Court of Appeal nonetheless reverses, holding that the above evidence isn't necessarily dispositive given Mr. Padron's limited contact with his attorney and his PTSD. I can see that. It's possible that a neutral person evaluating the evidence might decide that Mr. Padron was telling the truth and didn't understand that he'd be deported notwithstanding all this contrary evidence. (It'd be tough, I think, to come to that conclusion, but it's definitely possible.)

But it's hard to see how this would cause Mr. Padron any prejudice that would justify relief given that he'd almost certainly be convicted of a deportable offense anyway. If he went to trial, he'd have been convicted. Of that I'm virtually certain. It might have been theoretically possible for Mr. Padron to have pled guilty to a non-deportable offense -- for example, "witness tampering" -- that still contained a three year sentence. But there's zero evidence here that the prosecutor would have offered or accepted such a hypothetical deal, especially since Mr. Padron was a three-strike offender and the prosecutor stated at the plea hearing that there'd be no deal without immigration consequences. If the failure to understand immigration consequences causes absolutely no harm -- if the result would have been no different either way -- I'm unclear those set of facts should entitle a petitioner to relief.

And I don't understand how the Court of Appeal can order the granting of the petition on remand. Even if the trial court erred, it'd certainly be within the province of the trial court to decide that it simply did not believe Mr. Padron, right? Admittedly, no such finding was made by the trial court here -- it simply resolved the issue on the declarations. But that's because it thought that the documentary evidence was so clear that no such hearing was required (and the prosecutor's office thought the same thing). I would think that a remand would be required to decide whether Mr. Padron was telling the truth, at a hearing at which, perhaps, the public defender might also be called as a witness to testify to precisely what was said to Mr. Padron before he accepted his plea. It's true that all of that was unnecessary before, but that's because the trial court thought (wrongly, according to the Court of Appeal) that the evidence was not in sufficient dispute to create a genuine issue. Now that the Court of Appeal has held that it does, we can't just assume that Mr. Padron is telling the truth, can we?

It just seem bold to me to direct a granting of the petition. Maybe, despite all the contrary evidence, Mr. Padron did not, in fact, understand the immigration consequences of his plea.

But maybe he did.

Talbott v. Ghadimi (Cal. Ct. App. - March 18, 2025)

Today's Court of Appeal opinion is doctrinally important in its own right, since it takes a position on an existing appellate split:

"We conclude Ghadimi was entitled to relief under the mandatory provision of section 473, subdivision (b). In doing so, we follow Solv-All v. Superior Court (2005) 131 Cal.App.4th 1003, 1008 (Solv-All), where the court held a defendant may be entitled to relief under the mandatory provision of section 473, subdivision (b), even where the attorney makes a bad strategic decision, rather than Jerry’s Shell v. Equilon Enterprises, LLC (2005) 134 Cal.App.4th 1058 (Jerry’s Shell), where the court held such relief may not be available in that situation."

But even if you don't care about the underlying doctrine, it's a neat opinion to read, if only because it (1) quotes liberally from many of the major cases regarding attorney civility, and (2) involves attorneys who, to put it generously, did not exemplify the height of these ideals.

It's easy to get angry at your opposing counsel. It's sometimes difficult to keep one's cool.

Try.

Lake v. Gates (9th Cir. - March 17, 2025)

I have a different perspective than both Judge Gould (who authors the majority opinion) and Judge Bumatay (who authors the dissent) in this one.

I agree with Judge Gould that Alan Dershowitz signed a paper -- a complaint -- that contained frivolous allegations. But he signed that complaint as "of counsel" (though he signed a later frivolous motion containing similar claims as "counsel" for the party, which he claims was "a mistake") for the party.

Dershowitz asserts that he was only responsible for a particular paragraph (paragraph eight) of that complaint, so he couldn't be sanctioned for anything else. Is he right?

Judge Gould says that he could be sanctioned for the whole thing, but nonetheless reverses the sanctions here because before today's opinion, the ability to sanction lawyers who are "of counsel" was unclear. Judge Bumatay agrees with the reversal of sanctions, but thinks that "of counsel" lawyers should be subject to more lax standards even prospectively.

I disagree.

To me, if you sign a complaint (or any other filing, for that matter), you're signing the whole thing, unless you expressly say otherwise. Period. Doesn't matter if you're a partner, associate, of counsel, or whatever. If you sign it in toto, you're responsible for whole thing. You're not permitted to retrospectively argue that you were only signing it with respect to a particular portion.

By signing the complaint, Dershowitz obtained advantages both for himself and for his client. He got the advantage of being a designated attorney in a high-profile election challenge. His client got the advantage of having a big name attached to his pleading that attested to its seriousness.

If Dershowitz had signed this pleading and said "But I'm only attesting to the validity of Paragraph 8," both he and his clients wouldn't have obtained those advantages. And the other side would know that Dershowitz wasn't responsible for -- and couldn't be sanctioned -- for anything else.

But Dershowitz deliberately didn't do that. He signed the whole thing, without exception or caveat.

My rule, both prospectively and otherwise, would be this:

Anyone who signs a paper under Rule 11, whatever their role, is responsible for the entire paper unless somewhere in their signature they represent to the Court that they are only certifying a specified portion of that paper.

That's what I've always thought the rule was. That's what I continue to think the rule should be.

If I sign a public petition, or an amicus brief, or anything else, I'm singing the whole thing, and I don't sign it if there's something in it that's flatly untrue. What's true there is equally true -- if not more so -- for filings in federal court. If a Ninth Circuit judge puts their signature on an opinion, that's a sign that they agree to the whole thing. If they don't, they say so at the time, in a concurrence or otherwise. It's wrong -- as well as fundamentally unfair -- for someone to be able to retrospectively say "Oh, well, yeah, that's my signature at the bottom, but I only meant to sign for part of it -- the part to which you don't object." That's not the way the world works, nor should federal court work that way.

I've been "of counsel" to plenty of things. I'm more than happy to follow the proposed rule I advance herein.

So should everyone. Signatures are signatures. Lawyers are lawyers. You either mean what you sign or you say the parts to which you don't mean. Period.

Kaushansky v. Stonecroft Attorneys APC (Cal. Ct. App. - March 14, 2025)

Here's a good law review topic for someone looking to write a doctrinal piece:

Is a legal malpractice plaintiff required to prove that the underlying judgment that he would have obtained against the underlying defendant is collectible?

The rule in California is: Yes. Which is why the Court of Appeal here reverses a $91,734.29 malpractice award against an attorney (though affirming the $25,000 award for emotional distress).

It's somewhat unfortunate. I have very little doubt that the plaintiff here could have established that the underlying judgment would have been collectible. Most likely, her lawyer simply didn't realize that this was an element of the cause of action.

(Which, ironically, might arguably mean that her legal malpractice attorney committed malpractice. Oops.)

But, at trial, since there was no substantial evidence (or really any competent evidence at all) of the landlord's wealth, or insurance, or any other ability to pay the judgment, the judgment cannot stand.

At the same time, both the majority and the concurrence cogently argue that collectability should not be an element of the plaintiff's case. I agree.

I might perhaps not go as far as some (or all) of these justices. I do think it's an issue, since if the judgment isn't collectible (or saleable, etc.), then there's no damages. But I think it should be an affirmative defense on which the defendant has the burden of proof. Because most judgments are presumptively collectible (or saleable). So in those minority of occasions in which it's not, let's allocate the burden of proof to the party most able to raise the issue -- the defendant. Makes sense. I'm sure the defendant will raise the issue if, in fact, the underlying judgment debtor would have been judgment proof. They'll have every incentive to so argue.

And, yes, I know that "damages" are part of "plaintiff's" case, and proving that the judgment could have been collected is arguably part of damages because no collection means no damages. But we have any number of legal presumptions that reflect the modern world and allocate appropriate burdens of proof and/or production. Res ipsa. Presumption of sanity. Presumption of paternity. All sorts of stuff. It's just fine to allocate burdens based on such things. It'd be entirely appropriate to add "presumption that legal (and medical, and whatever) malpractice judgment is collectible" to the list.

At some point, it'd be great if the California Supreme Court said so.

Which it could do, I think, quite concisely.

There you go. I just basically wrote the article for you. Flesh it out with a few hundred footnotes over 50 or so dense pages, all of which add very little of substance to the above, and you're a published author.

U.S. v. $1.1 Million in Currency (9th Cir. - March 11, 2025)

I think Judge Bress is right.

The government wants civil forfeiture of $1,106,775 in cash that it seized from Oak Porcelli when it stopped him on I-80 in Nevada and found it vacuum-sealed in his SUV. Personally, I'm very inclined to believe that the government is correct that these funds are ill-gotten (and thus forfeitable), but that's what the trial's going to be about.

Prior to trial, the government propounded some interrogatories to Mr. Porcelli, as it's entitled to do. But there's obviously some potential self-incrimination at stake here. So the rule is that the interrogatories can only be about Mr. Porcelli's standing to object to the seizure, not its merits.

Mr. Porcelli says, yes, it's my money, and yes, I say it's mine, so yes, I have standing to contest the seizure. He also gives a tiny little bit of detail about where he contends the money legitimately came from: i.e., "by working in the movie industry for 15 years." But he didn't go into exhaustive detail. He says, though, that he doesn't have to: that if the only permissible issue is standing, then obviously he has standing, since he claims that the money is his, and that his responses are accordingly all that's required.

The trial court disagreed, and struck Mr. Porcelli's claim to the money as a sanction for his refusal/failure to answer the interrogatories completely. The Ninth Circuit affirms. Judge Bress dissents.

It seems to me that the dissent is correct. Here's the relevant legal rule: In civil forfeiture cases, the government can only use interrogatories to "seek information about a claimant’s standing— meaning, his 'identity and relationship to the defendant property.'" If that's the case (as it undoubtedly is), it seems to me sufficient to simply identify who you are, and that you claim to own it, and to provide the most minimal of details about how you got it; i.e., your "relationship to the property". Saying "I own it because I earned it through my work" seems entirely responsive (and sufficient). The rest is the merits, and for trial.

Judge Bress waxes poetic about the dangers of the majority's contrary approach, and there's a lot to be said for that.

But even just as a matter of text and purpose, the dissent seems more persuasive to me than the majority opinion. Mr. Porcelli's clearly got standing to object. He claims the money is his. Everything else is simply a fight about whether he's right that he earned the money legitimately.

Kuo v. Dublin Unified School Dist. (Cal. Ct. App. - March 12, 2025)

Next time you need an excuse not to volunteer at your child's public school, use this opinion.

"But honey, since I'm a volunteer, if I die there, you won't get any money, even if it's the result of the school's negligence. I'm just looking out for you and the kids."

It's not going to get you out of watching a school play (or swim meet), but it's something, eh?

Bussey v. Driscoll (9th Cir. - March 12, 2025)

Someone might well describe this Ninth Circuit opinion as follows:

"Ninth Circuit holds that soldier discharged for rape deserves honorable discharge."

Some would argue that such a description would be factually inaccurate. For example, the court martial jury only found him guilty of "wrongful sexual conduct," not rape. Though the Ninth Circuit describes the relevant facts as follows: "After she declined Bussey’s request to “cuddle,” she said he picked her up, took her to the bed, and began removing her clothing. She said she repeatedly told Bussey to stop and that she did not want to have sex with him, but he forcibly held her down and penetrated her." Which at least sounds an awful lot like rape.

Some might also argue that the Ninth Circuit didn't necessarily say that Mr. Bussey deserved an honorable discharge, and rather merely reversed the grant of summary judgment to the government and said that the soldier might perhaps be able to demonstrate that PTSD from Afghanistan "contributed" to his decision to unlawfully sexually assault the victim.

But others might well respond that PTSD isn't an excuse for raping someone and/or that someone who is found guilty of unlawfully sexually assaulting someone while in the military should not be granted an honorable discharge, period.

PTSD or no.

Regardless: I submit the opinion to you for your review.

U.S. v. Walthall (9th Cir. - March 11, 2025)

When you're sitting in jail awaiting trial for a serious offense, you've got a lot of time to think. Sometimes that reality is exceptionally counterproductive to your welfare.

John Walthall was indicted in federal court 2009 for attempting to swindle an elderly couple out of $5.5 million. He fled, but was eventually captured and convicted. While awaiting sentencing, "he told another inmate that he wanted 'to get rid of the people involved in” his prosecution, including “the judge, the prosecutors, and the FBI agents.'" That's a bold plan, of course. But not a very wise one.

Entirely predictably, the inmate snitched, and they transferred Mr. Walthall to a federal prison and put an undercover agent in there as well wearing a wire. Mr. Walthall was subsequently recorded by the agent as saying that "he wanted the murder to be “nice and painful,” with the judge’s arms and legs “cinched” and his body “shoved in a . . . wood chipper.” He also explained that he wanted [the informant] to find an FBI agent involved in his case, “and his wife, and family,” and to “make their bodies disappear.”"

First of all, that's almost certainly not going to happen. Second of all, those statements are likely not going to play well at all when you're subsequently sentenced for attempted first degree murder.

Mr. Walthall's poor decision making didn't end there. He now had lots of additional time in prison to work on his upcoming legal defense to the attempted murder charges. So he prepared and "submitted a 1,664-page document outlining 872 reasons for the district judge to recuse himself and complaining that, while Walthall was in prison, “DOJ/FBI/BOP-employee directed, and controlled Entrapment Officers” had employed “Gangsters, Serial Murderers, and Professional Terrorists, from Mexico, Colombia, and Nigeria” to extort money from him."

The district court denies his request to represent himself, he's found guilty and sentenced to the statutory maximum of 20 additional years in prison, and the Ninth Circuit affirms.

People v. Olmos (Cal. Ct. App. - March 10, 2025)

This is a short opinion. Very short. Three-and-a-half pages. 

It could maybe stand for one more paragraph.

Luis Olmos was convicted of first degree murder in 2001, so that's preexisting bad news for him. He gets additional bad news today: the Court of Appeal decides that his sentence, which was for a murder that he committed when he was 17, isn't the functional equivalent of life without the possibility of parole, so he's not entitled to file a Section 1170(d)(1)(A) petition. So denial of the petition affirmed.

The good news, though, is this. Mr. Olmos thought that he'd be sentenced to 41 years to life, and his briefs on appeal said so. But the Court of Appeal noticed -- and then says in today's opinion -- that he actually was only sentenced to 33 years to life.

So that's eight years less than he thought. We'll count that as a win for him.

It's still a long time, though. But not functionally equivalent to a sentence of life without parole. Which is why Mr. Olmos loses his appeal.

The additional sentence that I wish had been added to the opinion was simply a brief factual recitation of the relevant dates and times. I know from the existing opinion that he was convicted in 2001 for a murder that occurred in 1996. I also know that he received some pretrial custody credits since there was a prior Court of Appeal opinion about that, and I also know that Mr. Olmos was entitled to a parole hearing in December 2024.

But what I don't know, and can't precisely figure out from the opinion, is what age Mr. Olmos will be when his "33 years" runs out. Will he be 50 -- murder at 17, plus 33 years? Will he be 55-- murder at 17, conviction 5 years later, plus 33 more years? Will he be some other age given his pretrial custody credits?

I understand that his sentence isn't equivalent to an LWOP because, apparently, at some age prior to, say, 65, he'll in fact be eligible to get out (even if he doesn't receive time off for good behavior, which I suspect he has, in fact, obtained.) But it'd be very nice to know precisely which age the Court of Appeal is talking about when it holds here that Mr. Olmos' age isn't sufficient to constitute LWOP.

So just one for paragraph -- or even sentence -- maybe? If only so other judges or justices can know precisely what the holding is here.