New Case Law: Order Granting New Trial Upheld Where Plaintiff’s Counsel Improperly Violates Pre-Trial Orders by Arguing “Reptile Theory," etc.

 

In an opinion written by Justice Codrington, the Fourth Appellate District, Division Two, affirmed the grant of a motion for new trial by San Bernardino County Superior Court Judge Michael A. Sachs. (Allen v. Patel (December 23, 2025) E082051.)  The appellate opinion explained the issue involved whether the trial court properly granted a motion for new trial based upon the alleged misconduct of plaintiff and appellant’s counsel Michael K. Blue:

While plaintiff and appellant Brenda Lee Allen and her family were moving out of Ontario Airport Inn Hotel after an extended stay, she and the hotel owner, defendant and respondent Anil Bhula Patel, and the hotel manager, Luis Mejia, engaged in an altercation. Allen alleges that during the incident, Patel attacked and injured her. Allen brought a personal injury lawsuit against Patel and his company, DH Hotel Investments, Inc. (DH) (collectively referred to as defendant).  A jury awarded Allen over one million dollars in compensatory damages, and the court declared a mistrial at the bifurcated trial on her punitive damages claim, and thereafter granted defendant’s motion for a new trial (MNT). Allen appeals. Allen contends the trial court abused its discretion by granting the MNT based on attorney misconduct. . . .  We affirm the trial court’s order granting a new trial of phase one of the trial as to liability and compensatory damages. . . .  The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, speculating that defense counsel told his client he would essentially get away with his bad conduct. (Id., p. 2.

The alleged misconduct involved claims of injury not previously disclosed:

During attorney Michael K. Blue’s opening statement on behalf of Allen, he told the jury that it would hear from Allen’s doctors and that there would be testimony that, after her altercation with Patel at the Hotel, she suffered from incontinence and PTSD, which she will suffer from for the rest of her life. Blue described in detail Allen’s incontinence. Blue requested the jury to award Allen $6,000,000 in compensatory damages. After Blue completed his opening statement, defendant moved for a mistrial on the grounds that Blue raised new and argumentative issues that were never disclosed before. Defendant argued that Blue improperly stated during his opening statement that Allen was immunocompromised and suffered from a bone disease. Defendant asserted that this was improper because Allen’s attorneys would not be providing any medical testimony by any designated medical physician, establishing these diagnoses or prognoses. The trial court responded that Allen’s treating physician could testify regarding his own diagnoses but could not testify regarding other diagnoses or causation unless designated as an expert witness. Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., pp. 6-7.)

Patel moved for a new trial under Code of Civil Procedure section 657,2 based on 1) irregularity in proceedings which prevented a fair trial, 2) accident or surprise, 3) excessive damages, and/or 4) insufficiency of evidence or the verdict is against the law.  The Lee opinion summarized the trial court’s grant of a motion for new trial as follows:

After hearing oral argument on July 19, 2023, on Patel’s MNT, the trial court ordered a new trial. During the hearing, the trial court stated in detail its reasons. The court found that Allen’s evidence was tainted by Blue’s misconduct. The court explained that it had granted several motions in limine (MIL) orders, which Blue violated. The trial court expressed concerns about Allen introducing evidence of bowel and G.I. issues, which Allen claimed were caused by the Hotel incident. The trial court asked Blue if there would be evidence offered by an expert showing causation linking Allen’s GI claims with the Hotel incident, and Blue told the court, yes, which was false. (Id., p. 8.)

The trial court also found that plaintiff’s counsel had violated an in limine order made at the outset of trial which prohibited both “golden rule” and “reptile theory” arguments. The trial court also found, inter alia, that during the first phase of the bifurcated trial, plaintiff’s counsel had improperly asked the jury to award punitive damages.

The Court of Appeal affirmed, finding that plaintiff had not met her burden of showing any error by the trial court in granting a motion for new trial:

We conclude there was substantial evidence in the record supporting the trial court’s findings that Blue made knowingly false and misleading statements and elicited inadmissible, prejudicial, and highly inflammatory testimony in violation of the court’s orders and warnings not to introduce evidence of Allen’s incontinence unless Blue was able to introduce expert witness testimony establishing a medical diagnosis of her condition and that it was caused by the Hotel incident. (Id., p. 25.)

As to golden rule arguments, the Fourth District found Mr. Blue had violated the trial court’s in limine order “by suggesting that when considering the amount of fair value compensation Allen should receive for her losses, the jurors should imagine what it would be like to be forced to accept the loss of ’every single thing that matters' to them" in exchange for a monetary award. (Id., p. 29.)

As to so-called “reptile theory,” the appellate court concluded that “violation of the [prohibiton against] reptile theory occurs when counsel asks jurors to base their decisions on concerns about their own safety and the safety of the community rather than the applicable standard of care,” citing to Regalado v. Callaghan (2016) 3 Cal. App. 5th 582, at 599.).  Mr. Blue patently violated the order precluding such by virtue of the following argument to the jury, as summarized by the Allen court:

Blue began his opening statement by stating, “I’m scared. I couldn’t sleep last night because I’m scared. It’s an enormous obligation to represent somebody who cannot represent themselves. . . . I’m shaking. My knees are shaking. . . . It’s a privilege of a lifetime. . . when you believe in somebody. My fear is that I have not done a good enough job to represent that person the way that person deserved to be represented that I have failed. And at some point I’m going to hand this case . . . to you for you to take this case for me. And that scares me to death.”
Blue then told the jury it had “an opportunity to make a difference. We go through life, try to set an example, try and do the right thing. Maybe somebody will see. Maybe our children will see. Maybe our students will see. But seldom do we have an opportunity to defend our community, to champion our community, to stand as the last bastion for what we will tolerate for our community. Will we tolerate men coming into a room with a vulnerable woman, the most vulnerable of us and put their hands on her? Will we tolerate that? That decision is going to be your decision in just a few moments. (Id., p. 30.)

The appellate court also found the trial court had properly granted a new trial based upon misconduct by Mr. Blue in making an argument to the jury which improperly speculated as to discussions between defendant and defense counsel, Mr. Blue telling the jury that defense counsel may have told defendant they would essentially get away with his bad conduct. (Id., p. 33.)

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Case law update - in Calfornia, employer and employee may prospectively waive 30-minute lunch break

 

 

Sanity prevails, as employer and employee may prospectively waive 30-minute lunch break after five hours

The Second District of the Court of Appeal for the State of California has decided the rule that employees are entitled to a 30-minute lunch break after five hours may be waived, in writing and in advance of the actual work day, as long as the waiver is not coerced. (Bradsbery v. Vicar Operating Inc. (April 21, 2025) case no. B322799.) The appellate court put the question succinctly, noting that the issue involved a written waiver of the statutory right of an employee working but less than six hours or more to have a 30-minute rest period to occur after five hours of work.  While the statute provides that employees working more than five but less than six hours may “waive” their meal period, the statute is silent as to whether this waiver may occur in advance and in writing, as opposed to being waived orally on an ad hoc basis, thus creating the ambiguity that the Court of Appeal addressed:

The Legislature and the Industrial Welfare Commission (IWC) have determined a meal period for work shifts between five and six hours may be waived. The question before us is narrow and of first impression: whether the mutual waiver of that meal period by an employer and employee can occur prospectively and in writing. Labor Code section 512 guarantees a 30-minute, off-duty meal period for employees after five work hours and a second meal period after 10 work hours. Section 512 also provides that, for shifts between five and six hours, the first meal period “may be waived by mutual consent of both the employer and employee.”
(Id., p. 1.)

The Court found against the employee's argument that the waiver the employee signed violated California law:

We conclude the revocable, prospective waivers Plaintiffs signed are enforceable in the absence of any evidence the waivers are unconscionable or unduly coercive. The prospective written waiver of a 30-minute meal period for shifts between five and six hours accords with the text and purpose of section 512 and Wage Order Nos. 4 and 5. (Id., p. 2.)

Key to this conclusion was the Court’s analysis as to legislative intent, noting that the legislative history did not suggest an intent to prohibit prospective waivers of meal periods:

Our fundamental task is to ascertain the purpose of section 512 and the wage orders, with an eye to promoting “‘“the protection and benefit of employees.”’” (McLean v. State of California (2016) 1 Cal.5th 615, 622; accord, Stone, supra, 16 Cal.5th at p. 1052; Brinker, supra, 53 Cal.4th at pp. 1026-1027.) We conclude the text of section 512 and Wage Order Nos. 4 and 5, as well as the legislative and administrative history, indicate the Legislature and IWC did not intend to prohibit prospective written meal period waivers.
 (Id., p. 21.)

This decision is important because not only do certain employers encourage these written waivers, but other employers force their employees to take a 30-minute meal period after five hours even if the employee is strongly against doing so, fearing the employee will later claim they were denied their lunch or dinner break.

 

 

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Breaking: California Supreme Court Permits Bill to Advance Despite lack of 30 days Notice, Advancing Governor Newsom’s Gerrymandering Plan

As reported by the San Francisco Chronicle (https://www.sfchronicle.com/politics/article/california-supreme-court-clears-way-newsom-s-20826777.php), the As reported by the San Francisco Chronicle (https://www.sfchronicle.com/politics/article/california-supreme-court-clears-way-newsom-s-20826777.php), the California Supreme Court has rejected a challenge to Democrat Governor Newsom‘s hasty plan for a ballot initiative on tap for the November election.  The idea is to further "gerrymander" California’s elections so as to make certain fewer, if any, dissenting parties may be elected, this being the plan even though the Democrats already possess a super majority in their legislature and have no real opposition to any tax increases, new regulations limiting the freedom of individuals, etc.
 
California law requires, of course, that bills have a 30–day "notice" period, ostensibly to give notice to the populace about Sacramento's latest scheme.  However, in order to rush the ballot initiative, the Democrats refused to give this notice, correctly predicting the California Supreme Court would, so to speak, turn the other cheek. They did what is called "gut and amend,” and took an existing bill and changed almost every word under the bizarre and illogical rubric that this gives “notice“ for a 30-day period because the original (and different) bill was promulgated earlier in time. Which, of course, it does not. 
The Supreme Court of California has rejected a challenge to this procedure, ruling by way of an order that provides no explanation of its rationale. While such summary orders rejecting challenges in this manner are common, in this case, it would’ve been useful to know something about the reasoning.  Is it that the  Supreme Court does not wish to wade into the political arena of redistricting by giving a legal opinion as to what constitutes "30-day notice," or does the Court, in fact, give its blessing to the gut-and-amend strategy?t has rejected a challenge to Democrat Governor Newsom‘s hasty plan for a ballot initiative on tap for the November election.  The idea is to further "gerrymander" California’s elections so as to make certain fewer, if any, dissenting parties may be elected, this being the plan even though the Democrats already possess a super majority in their legislature and have no real opposition to any tax increases, new regulations limiting the freedom of individuals, etc.
 
California law requires, of course, that bills have a 30–day "notice" period, ostensibly to give notice to the populace about Sacramento's latest scheme.  However, in order to rush the ballot initiative, the Democrats refused to give this notice, correctly predicting the California Supreme Court would, so to speak, turn the other cheek. They did what is called "gut and amend,” and took an existing bill and changed almost every word under the bizarre and illogical rubric that this gives “notice“ for a 30-day period because the original (and different) bill was promulgated earlier in time. Which, of course, it does not. 
As reported by the San Francisco Chronicle (https://www.sfchronicle.com/politics/article/california-supreme-court-clears-way-newsom-s-20826777.php), the As reported by the San Francisco Chronicle (https://www.sfchronicle.com/politics/article/california-supreme-court-clears-way-newsom-s-20826777.php), the California Supreme Court has rejected a challenge to Democrat Governor Newsom‘s hasty plan for a ballot initiative on tap for the November election.  The idea is to further "gerrymander" California’s elections so as to make certain fewer, if any, dissenting parties may be elected, this being the plan even though the Democrats already possess a super majority in their legislature and have no real opposition to any tax increases, new regulations limiting the freedom of individuals, etc.
 
California law requires, of course, that bills have a 30–day "notice" period, ostensibly to give notice to the populace about Sacramento's latest scheme.  However, in order to rush the ballot initiative, the Democrats refused to give this notice, correctly predicting the California Supreme Court would, so to speak, turn the other cheek. They did what is called "gut and amend,” and took an existing bill and changed almost every word under the bizarre and illogical rubric that this gives “notice“ for a 30-day period because the original (and different) bill was promulgated earlier in time. Which, of course, it does not. 
The Supreme Court of California has rejected a challenge to this procedure, ruling by way of an order that provides no explanation of its rationale. While such summary orders rejecting challenges in this manner are common, in this case, it would’ve been useful to know something about the reasoning.  Is it that the  Supreme Court does not wish to wade into the political arena of redistricting by giving a legal opinion as to what constitutes "30-day notice," or does the Court, in fact, give its blessing to the gut-and-amend strategy?t has rejected a challenge to Democrat Governor Newsom‘s hasty plan for a ballot initiative on tap for the November election.  The idea is to further "gerrymander" California’s elections so as to make certain fewer, if any, dissenting parties may be elected, this being the plan even though the Democrats already possess a super majority in their legislature and have no real opposition to any tax increases, new regulations limiting the freedom of individuals, etc.
 
California law requires, of course, that bills have a 30–day "notice" period, ostensibly to give notice to the populace about Sacramento's latest scheme.  However, in order to rush the ballot initiative, the Democrats refused to give this notice, correctly predicting the California Supreme Court would, so to speak, turn the other cheek. They did what is called "gut and amend,” and took an existing bill and changed almost every word under the bizarre and illogical rubric that this gives “notice“ for a 30-day period because the original (and different) bill was promulgated earlier in time. Which, of course, it does not.

 
The Supreme Court of California has just rejected a challenge to this procedure, ruling by way of an order that provides no explanation as to its rationale. While such summary orders rejecting challenges in this manner are common, in this case, it would’ve been useful to know something about the reasoning.  Is it that the  Supreme Court does not wish to wade into the political arena of redistricting by giving a legal opinion as to what constitutes "30-day notice," or does the Court, in fact, give its blessing to the gut-and-amend strategy? 

 

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Text of the California Anti-Parody Statute Ripe for Appellate Review on Constitutional Grounds

 

California's AB 730 prohibits use of digital tools to make fun of candidates for public office

 

In our prior post we discussed challenges to a new California law making it a crime to parody political figures using digital tools such as Artificial Intelligence under the rubric the public, and, in particular, voters must be "protected" from such. 

 

The text of this new law, in all its breadth, is set forth below with key portions italicized, including provisions making it illegal to use digital tools to create a "false representation" of a candidate or, God forbid, harm their reputation:

 

 

The people of the State of California do enact as follows:

SECTION 1.

 Section 35 of the Code of Civil Procedure is amended to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, election contests, and actions under Section 20010 of the Elections Code shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

SEC. 2.

 Section 35 is added to the Code of Civil Procedure, to read:

35.

 (a) Proceedings in cases involving the registration or denial of registration of voters, the certification or denial of certification of candidates, the certification or denial of certification of ballot measures, and election contests shall be placed on the calendar in the order of their date of filing and shall be given precedence.

(b) This section shall become operative January 1, 2023.

SEC. 3.

 Section 20010 of the Elections Code is amended to read:

20010.

 (a) Except as provided in subdivision (b), a person, firm, association, corporation, campaign committee, or organization shall not, with actual malice, produce, distribute, publish, or broadcast campaign material that contains (1) a picture or photograph of a person or persons into which the image of a candidate for public office is superimposed or (2) a picture or photograph of a candidate for public office into which the image of another person or persons is superimposed. “Campaign material” includes, but is not limited to, any printed matter, advertisement in a newspaper or other periodical, television commercial, or computer image. For purposes of this section, “actual malice” means the knowledge that the image of a person has been superimposed on a picture or photograph to create a false representation, or a reckless disregard of whether or not the image of a person has been superimposed on a picture or photograph to create a false representation.

(b) A person, firm, association, corporation, campaign committee, or organization may produce, distribute, publish, or broadcast campaign material that contains a picture or photograph prohibited by subdivision (a) only if each picture or photograph in the campaign material includes the following statement in the same point size type as the largest point size type used elsewhere in the campaign material: “This picture is not an accurate representation of fact.” The statement shall be immediately adjacent to each picture or photograph prohibited by subdivision (a).

(c) (1) Any registered voter may seek a temporary restraining order and an injunction prohibiting the publication, distribution, or broadcasting of any campaign material in violation of this section. Upon filing a petition under this section, the plaintiff may obtain a temporary restraining order in accordance with Section 527 of the Code of Civil Procedure.

(2) A candidate for public office whose likeness appears in a picture or photograph prohibited by subdivision (a) may bring a civil action against any person, firm, association, corporation, campaign committee, or organization that produced, distributed, published, or broadcast the picture or photograph prohibited by subdivision (a). The court may award damages in an amount equal to the cost of producing, distributing, publishing, or broadcasting the campaign material that violated this section, in addition to reasonable attorney’s fees and costs.

(d) (1) This section does not apply to a holder of a license granted pursuant to the federal Communications Act of 1934 (47 U.S.C. Sec. 151 et seq.) in the performance of the functions for which the license is granted.

(2) This section does not apply to the publisher or an employee of a newspaper, magazine, or other periodical that is published on a regular basis for any material published in that newspaper, magazine, or other periodical. For purposes of this subdivision, a “newspaper, magazine, or other periodical that is published on a regular basis” does not include any newspaper, magazine, or other periodical that has as its primary purpose the publication of campaign advertising or communication, as defined by Section 304.

(e) This section shall become operative on January 1, 2023.

SEC. 4.

 Section 20010 is added to the Elections Code, to read:

20010.

 (a) Except as provided in subdivision (b), a person, committee, as defined in Section 82013 of the Government Code, or other entity shall not, within 60 days of an election at which a candidate for elective office will appear on the ballot, distribute, with actual malice, materially deceptive audio or visual media, as defined in subdivision (e), of the candidate with the intent to injure the candidate’s reputation or to deceive a voter into voting for or against the candidate.

(b) (1) The prohibition in subdivision (a) does not apply if the audio or visual media includes a disclosure stating: “This _____ has been manipulated.”

(2) The blank in the disclosure required by paragraph (1) shall be filled with whichever of the following terms most accurately describes the media:

(A) Image.

(B) Video.

(C) Audio.

(3) (A) For visual media, the text of the disclosure shall appear in a size that is easily readable by the average viewer and no smaller than the largest font size of other text appearing in the visual media. If the visual media does not include any other text, the disclosure shall appear in a size that is easily readable by the average viewer. For visual media that is video, the disclosure shall appear for the duration of the video.

(B) If the media consists of audio only, the disclosure shall be read in a clearly spoken manner and in a pitch that can be easily heard by the average listener, at the beginning of the audio, at the end of the audio, and, if the audio is greater than two minutes in length, interspersed within the audio at intervals of not greater than two minutes each.

(c) (1) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may seek injunctive or other equitable relief prohibiting the distribution of audio or visual media in violation of this section. An action under this paragraph shall be entitled to precedence in accordance with Section 35 of the Code of Civil Procedure.

(2) A candidate for elective office whose voice or likeness appears in a materially deceptive audio or visual media distributed in violation of this section may bring an action for general or special damages against the person, committee, or other entity that distributed the materially deceptive audio or visual media. The court may also award a prevailing party reasonable attorney’s fees and costs. This subdivision shall not be construed to limit or preclude a plaintiff from securing or recovering any other available remedy.

(3) In any civil action alleging a violation of this section, the plaintiff shall bear the burden of establishing the violation through clear and convincing evidence.

(d) (1) This section shall not be construed to alter or negate any rights, obligations, or immunities of an interactive service provider under Section 230 of Title 47 of the United States Code.

(2) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media prohibited by this section as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure, in a manner that can be easily heard or read by the average listener or viewer, that there are questions about the authenticity of the materially deceptive audio or visual media.

(3) This section does not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media.

(4) This section does not apply to an internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes materially deceptive audio or visual media prohibited by this section, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

(5) This section does not apply to materially deceptive audio or visual media that constitutes satire or parody.

(e) As used in this section, “materially deceptive audio or visual media” means an image or an audio or video recording of a candidate’s appearance, speech, or conduct that has been intentionally manipulated in a manner such that both of the following conditions are met:

(1) The image or audio or video recording would falsely appear to a reasonable person to be authentic.

(2) The image or audio or video recording would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.

(g) This section shall remain in effect only until January 1, 2023, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2023, deletes or extends that date.

 

(See https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB730.)

 

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Update: The War on Parody by Humorless Left-Wing Scolds Hits Roadblock

 

Federal Judge Finds that California law banning AI-generated fake videos unlawful but not unconstitutional, setting up issue for further judicial review.

Those who do not want their political views satirized — because these views are so silly they are ripe for humor — have attempted to ban such speech under the rubric that such is “misleading”, “dangerous,” etc.  Indeed, they have made quite the effort over the last few years to ban, prosecute, and silence parody.  The Christian satirical website Babylon Bee has taken the brunt of much of this effort, as those who attempt to censor in the name of “safety” have labeled the site “misinformation.” (See  https://www.newsweek.com/satire-misinformation-babylon-bee-says-mocking-woke-moral-purpose-1779062” where left-wing Newsweek — which no doubt covets it own First Amendment protection — took the stance that there is a real concern that such parody is “misinformation.”)  Indeed, the New York Times sold it soul to eschew freedom of speech and did its best to silence the Babylon Bee, as Newsweek pointed out:

In March, 2021, a New York Times reporter using information from Snopes [an online "fact checking" service which the New York Post termed "pants on fire partisans"] described the Babylon Bee as a "far-right misinformation site" that "trafficked in misinformation."

No wonder — BabylonBee videos include an appearance by Satan himself bemoaning the fact that Roe v. Wade was overturned and fewer babies may die. (See https://www.youtube.com/watch?v=0LI4UEHUvtM, and note that even today Google’s YouTube tries to counter this satire by a note attempting to characterize the end of a human life as “the loss of a pregnancy” as if the baby was simply "misplaced.") 

Of course, the Babylon Bee has fired back against left-wing cancel culture with headlines such as this “Trump Tweet Reading ‘Good Morning America’ Labeled as “Misinformation:’”

 

(See https://babylonbee.com/news/trump-tweet-reading-good-morning-america-labeled-as-misinformation.)

But this effort took an even darker turn with the prosecution and sentencing of Douglas MacKay by the Biden-era Department of Justice for jokingly asking Hillary Clinton’s voters to “vote by text,” implying they were so stupid they might do so.  I intend to repeat this tweet in the future, so if AOC wins the 2028 election and my posting stops, you will know that I, too have been arrested.  Of course, there is no humor associated with (hashtag) “I’m With Her” cabal so he was prosecuted for doing so.  The Department of Justice still lists this on its website as one of its accomplishments (https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election) and the website still lists someone as the “contact” for the prosecution, with no apparent embarrassment regarding the individuals listed:

Contact

John Marzulli


Danielle Blustein Hass


U.S. Attorney's Office

(718) 254-6323

(See https://www.justice.gov/usao-edny/pr/social-media-influencer-douglass-mackey-sentenced-after-conviction-election.)

This suit was, of course, brought in the Eastern District of New York, where fine American citizens found Mr. Mackay guilty of a crime for a very humorous tweet.

Which brings us to California’s recent law banning AI “fakes,” including — of course — political satire.  There are reports that this law  was specifically designed to ban videos such as one published on “X” where (an edited) Kamala Harris called herself the “ultimate diversity hire.”  This was offensive because, according to those who supported the law, she did not say this and she certainly was nothing like a diversity hire.

As reported by Politico (see https://www.politico.com/news/2025/08/05/elon-musk-x-court-win-california-deepfake-law-00494936), yesterday one Federal Judge, the Hon. John Mendez, ruled that the law did not pass muster because it is preempted by Federal Law protecting platforms from claims for user-generated content.  As Politico explained, the Federal Court did not need to, and therefore did not, rule on the obvious First Amendment issues.

This is important because the broad use of the term “deep fake” may be used to attempt to ban speech under the guise that we are “protecting” the public.  Given that even content generated by analog means, such as a photograph, will likely be edited by software which includes some sort of AI tools (even if these tools merely add a border to a photo), a ban on “AI-generated” content at election time, which is what Governor Newsom and his legislative cohorts attempted, potentially bans all political satire created by digital tools.

Given that this law is still enforceable in other contexts, the issue of using digital tools for political satire and attempts to ban such requires further judicial review.  At some point, then, the Supreme Court will need to reiterate that satire and humor and pointed and sharp speech about elections and political issues are at the heart of what the First Amendment protects.  

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Case note - California court rules against Bakery and Puts Statute Prohibiting Discrimination Above First Amendment Rights

 

California appellate court makes plain it considers First Amendment protections inferior to state-level statutes against discrimination

 

In Civil Rights Dept. v. Cathy's Creations (March 5, 2025, F08580) the Fifth District of  California refused to properly apply precedent upholding the breadth of First Amendment.  Recall that California all but gutted the First Amendment during the three years of the pandemic, caused by the release of the COVID-19 virus by a lab in Wuhan, China (reference:  the United States Department of Energy and the Central Intelligence Agency) and, indeed, California courts did little to stop the infringement upon freedoms guaranteed by the Bill of Rights.  Nonetheless, the lack of consideration given to the First Amendment in the recent Cathy's Creations opinion is troubling.  As the Fifth District framed the issue:

 

This appeal involves a bakery’s refusal to sell a predesigned white cake, popularly sold for a variety of events, because it was intended for use at the customers’ same-sex wedding reception. The State of California, through the Civil Rights Department (the CRD), filed suit on behalf of real parties in interest Eileen and Mireya Rodriguez-Del Rio (the Rodriguez-Del Rios) when Tastries Bakery (Tastries) refused to provide them the cake for their wedding pursuant to the bakery’s policy that prohibited the sale of any preordered cake for a same-sex couple’s wedding. The case culminated in a bench trial on the CRD’s claim of discrimination under the Unruh Civil Rights Act (Civ. Code, § 51 et seq. (UCRA)), and the free speech and free exercise affirmative defenses of defendants
Tastries, Tastries’s owner Cathy’s Creations, Inc. (Cathy’s Creations), and Cathy’s Creations’s sole shareholder Catharine Miller (Miller) (collectively defendants).2
The trial court concluded there was no violation of the UCRA because the CRD
failed to prove intentional discrimination, and concluded Miller’s referral of the
Rodriguez-Del Rios to another bakery constituted full and equal access under the UCRA.
The trial court proceeded to consider defendants’ affirmative defenses as an alternative matter, and concluded the preparation of a preordered cake by defendants always constitutes expression protected by the federal Constitution’s First Amendment when it is sold for a wedding, and, as applied here, concluded the UCRA compelled defendants to speak a message about marriage to which they objected. . . .

 

One should further recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n (2018) 584 U.S. 617, the United States Supreme Court ruled a bakery could not be forced to make a cake it found offensive and that the Colorado state government had evidenced hostility toward the baker's religious belief when it attempted to force the baker to do so.  As Justice Kennedy succinctly stated, "[w]hen the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires."  However, the Fifth District did not apply the holding in Masterpiece so as to constrain the ability of California to fine and harass Cathy's Creations, explaining:

 

If the mere act of providing and/or delivering a predesigned product for use at a same-sex wedding conveys a message of celebration and endorsement for same-sex
marriage, a baker could potentially refuse to sell any goods or any cakes for same-sex weddings as a protected form of expression; but this would be a denial of goods and services that likely goes “beyond any protected rights of a baker who offers goods and services to the general public .…” (Masterpiece, supra, 584 U.S. at p. 632.) Expanded logically, this reasoning would extend to a whole range of routine products and services provided for a wedding or wedding reception, including those highly visible items like jewelry, makeup and hair design for the wedding party, table centerpieces, stemware and alcohol for a toast, and catering displays. This is tantamount to business establishments being “allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”
(Id. at p. 634.) If mere product provision to a wedding is considered expressive conduct,
then all wedding vendors could potentially claim their refusal to serve same-sex couples. . . (Id., pp. 56-57.)

 

In other words, Cathy's Creations explained that California could not and should not actually apply the First Amendment, despite the Masterpiece holding from the United States Supreme Court, because if we do then we will not be able to enforce anti-discrimination laws. But this is exactly what the First Amendment does:  puts real limits on the scope of government powers and, of course, as Masterpiece held "anti-discriminaton" laws are not exempt from the purview of the Bill of Rights.

Analysis

 

Even if one were to factually distinguish this case from the cake-baking case ruled upon by the United States Supreme Court, the discussion and holding in Cathy's Creations is troubling.  First Amendment protections permit persons to refuse to voluntarily engage in actions which require speech and that they find offensive and/or violate their religious beliefs should be of the utmost consideration in terms of any court's legal analysis.  But Justice Meehan and his two colleagues dismissed application of these crucial limits on government power because to do so would render null a state statute prohibiting discrimination.  The justification was rather slim, resting on the silly notion that though baking a cake requires care and skill (and, as I would add, a bit of love) such care and skill is not "expressive:"

Because we conclude the cake defendants refused to provide in this instance was not an expressive activity protected by the First Amendment, defendants’ free speech defense fails. A huge number of routinely produced goods in the stream of commerce are designed with attention to aesthetic details that may reflect the designer’s sense of color, balance and perspective, and while those elements might be viewed as artistic features, they are primarily applied and intended for broad appeal and profitability—not as a medium for self-expression. While a routinely produced and multi-purpose cake like the one here might be baked and decorated with skill and creativity, we cannot conclude it is inherently expressive. (Id., p. 57.)

 

In other words, the Court's analysis is fundamentally flawed because it failed to apply the analysis mandated by Masterpiece.  Instead, it made it very clear a state-mandated prescription against discrimination must take precedence over Federal protections because, well, otherwise, the state law could not be given its full intended effect.  

 

This begs the question:  when will religious freedom and freedom of speech be restored to California?  And an even better question:  why do those who favor unlimited government power seem especially keen on harassing small businesses that do not have the resources to fight back?

 

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Dissenting Opinion Spotlight: Appeal should be re-briefed where jury found the actual tortfeasor had no liability

When majority upholds verdict finding School District but not employee is liable, a dissenting Justice asks the parties to submit new briefs

What happens in an appeal if the parties do not brief what may ultimately be the dispositive legal issue?  A remarkable dissent by Justice Richman in the First District's opinion in A.H. v. Tamalpais Union High School District (September 24, 2024) A165493 and A166684, posits that in such an instance should not decide the case on the issues actually briefed, but should instead ask for re-briefing on the most important legal issue raised by the case.

The complaint by A.H. alleged, inter alia, that he was molested by the employee of the defendant School District:

While still in middle school, A.H. began taking private tennis lessons from Burgos, and he joined the Tamalpais High School tennis team as a freshman. A.H. viewed Burgos as a mentor and the “most important person in [his] life” other than his parents. Burgos began sexually abusing A.H. in 2003. The abuse took place in Burgos’s office and later in the coaches’ locker room, both of which were next to the school’s boys’ locker room.m (Id., p. 2.)

The jury found for the plaintiff and the appellate court upheld the verdict, finding the defense had not raised any issue as to either jury instructions of the evidence admitted which required the verdict to be overturned:

On appeal, the District raises two claims: first, that the trial court improperly instructed the jury and, second, that the trial court erred in allowing A.H. to present inadmissible evidence of Burgos’s conduct with others. Finding no error, we affirm. (Id., p. 1.)

The dissent, however, found the parties had not briefed a crucial issue, and therefore dissented despite the fact it found no fault with the majority's analysis "as far as it goes."  According to Justice Richman, the crucial issue not briefed was not waived by the appellant but should in fact be re-briefed:

But there is where I part company with my colleagues. I would go further, and do something that to my knowledge this court has not done in my 18-and-a-half years’ experience here: raise on our own, and seek supplemental briefing on, an issue “not proposed or briefed by any party.” I would do this under the authority of Government Code section 68081, which provides in pertinent part as follows: 

“Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing.” (Dissent, p. 2.)

Specifically, the dissent argued the parties had not fully briefed the crucial issue of "whether the verdict allocating 100 percent responsibility for A.H.’s harm to the District, zero percent to Burgos, can support the judgment." (Id., pp. 1-2.)  The majority opinion noted that  the School District did not argue the apportionment of fault between itself and the employee was wrong, and therefore failed to make the distinct argument that the person committing the sexual assault cannot have zero liability while the party who is liable for this person's acts (for failing to supervise or properly hire him) has 100%.  

While the majority found the District had waived this argument, the dissent wanted the Appellate Court to utilize its power to order re-briefing so that this central flaw in the verdict could be considered.  As the dissent explained succinctly, it simply cannot be that the District is liable for the tort of its employee but the employee himself was not liable:

The jury went beyond the “extraordinary” request by counsel for A.H., and allocated 100 percent of responsibility for the harm to the District, zero to Burgos. That cannot be: if Burgos’s sexual battery did not harm A.H., then the District could not have been negligent in hiring him or failing to supervise him. Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023 (Ortega), a case cited by the District is, on this point, on point. (Dissent, p. 3; emphasis added.)

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Breaking news - Supreme Court rules legislative bodies cannot "take" private property by way of untethered "fees" (Sheetz v. County of El Dorado)

United States Supreme Court:  legislative bodies cannot "take" property by way of unlimited "fees" 

A recent Supreme Court opinion illustrates how lower courts often get it completely wrong, despite apparently clear precedent, and as this case shows, this is particularly likely to occur when courts get swept along with a judicial trend.  Such an unfortunate trend is interpreting the Fifth Amendment's bar against taking property without just compensation so narrowly as to permit the government to do virtually whatever it wants to a landowner's property, no matter logic or the law. 

In Sheetz v. County of El Dorado, No. 22–1074 (April 12, 2024), a unanimous Supreme Court found California courts had it entirely wrong when they found (the term "rubber stamp" comes to mind) an outrageous "fee" a landowner must pay to build a home -- having no relationship to the services provided or the cost of the project to local government -- did not implicate the bar against the "taking" of private property. The practical effect of ignoring the full effect of the Firth Amendment is that "fees" enacted by a legislative body have no upward limit and may take five, ten, or more percent of the value of the property, and a property owner may not even bring a Fifth Amendment claim.

The opinion authored by Justice Barett found these courts had misapplied prior precedent.  As the syllabus to the opinion sets forth, the issue was whether a California county could impose a $23,420 "traffic impact fee" upon an ordinary residential landowner unlucky enough to own a lot in El Dorado County and who wished to build a home:

As a condition of receiving a residential building permit, petitioner George Sheetz was required by the County of El Dorado to pay a $23,420 traffic impact fee. The fee was part of a “General Plan” enacted by the County’s Board of Supervisors to address increasing demand for public services spurred by new development. The fee amount was not based on the costs of traffic impacts specifically attributable to Sheetz’s particular project, but rather was assessed according to a rate schedule that took into account the type of development and its location within the County. Sheetz paid the fee under protest and obtained the permit. He later sought relief in state court, claiming that conditioning the building permit on the payment of a traffic impact fee constituted an unlawful “exaction” of money in violation of the Takings Clause. In Sheetz’s view, the Court’s decisions in Nollan v. California Coastal Comm’n, 483 U. S. 825, and Dolan v. City of Tigard, 512 U. S. 374, required the County to make an individualized determination that the fee imposed on him was necessary to offset traffic congestion attributable to his project. The courts below ruled against Sheetz based on their view that Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators, not to a fee like this one imposed on a class of property owners by Board-enacted legislation. 84 Cal. App. 5th 394, 402, 300 Cal. Rptr. 3d 308, 312.

In other words, the trial court, the Third Appellate District of California, and the California Supreme Court (which denied review) did not give full effect to precedent such as Nollan v. California Coastal Comm’n, 483 U. S. 825 (1987), and Dolan v. City of Tigard, 512 U. S. 374 (1994) indicating a fee with no nexus to the effect of the actual development is a "taking."  As Justice Barret wrote:

The California Court of Appeal rejected that argument because the traffic impact fee was imposed by legislation, and, according to the court, Nollan and Dolan apply only to permit conditions imposed on an ad hoc basis by administrators. That is incorrect. The Takings Clause does not distinguish between legislative and administrative permit conditions. (Sheetz., p. 14.)

Justice Barret and the remaining eight justices all agreed the fact a fee was imposed by a legislative body, rather than being imposed by a regulatory power, did not insulate said fee from scrutiny.  Simply put, the Bill of Rights applies equally to the executive and legislative branches of government.  

Therefore, the majority opinion explained the proper test for considering whether a "fee" is a taking:

Our decisions in Nollan and Dolan address this potential abuse of the permitting process. There, we set out a two-part test modeled on the unconstitutional conditions doctrine. See Perry v. Sindermann, 408 U. S. 593, 597 (1972) (government “may not deny a benefit to a person on a basis that infringes his constitutionally protected interests”). First, permit conditions must have an “essential nexus” to the government’s land-use interest. Nollan, 483 U. S., at 837. The nexus requirement ensures that the government is acting to further its stated purpose, not leveraging its permitting monopoly to exact private property without paying for it. See id., at 841. Second, permit conditions must have “‘rough proportionality’” to the development’s impact on the land-use interest. Dolan, 512 U. S., at 391. A permit condition that requires a landowner to give up more than is necessary to mitigate harms resulting from new development has the same potential for abuse as a condition that is unrelated to that purpose. See id., at 393. This test ap- plies regardless of whether the condition requires the land- owner to relinquish property or requires her to pay a “monetary exactio[n]” instead of relinquishing the property. Koontz, 570 U. S., at 612–615. (Id., p. 6.)

Analysis

The degree to which the lower courts "got it wrong" is stunning, and, in particular, the narrow reading of Nollan/Dolan is quite troubling.  As to the failure of the California Supreme Court to show any interest in preventing local government from unlawfully taking private property, the fact it declined to review an appellate opinion finding one of the protections of the Bill of Rights does not apply simply because it was the legislature that violated a citizen’s rights speaks for itself.

Though the opinion was unanimous, it leaves open the question of whether a particular fee is permissible, to wit, whether a particular fee meets constitutional muster, i.e, whether it has an  "“‘essential nexus’” to the government’s land-use interest and has “‘rough proportionality’” to a property’s impact on that interest." (Concurrence by J. Gorsuch, p. 1.)

Of course, if a legislature or similar body may impose an unlimited "fee" upon someone wishing to build a single home, under the rubric that limitations on such fees do not apply to legislative enactments, then the Fifth Amendment "takings clause" has no effect as long as the law classifies the taking as a legislatively-mandated "fee."

As noted in his concurrence, Justice Gorsuch is of the opinion whether a fee is a "taking" does not depend upon whether it is imposed upon a single property or a class of properties as the same constitutional rules apply to the rights of the "many" as they do to the "few."  Justice Gorsuch notes the majority opinion leaves this question for another day:

The Court notes but does not address a separate question: whether the Nollan/Dolan test operates differently when an alleged taking affects a “class of properties” rather than “a particular development.” (Id.)

Indeed, the concurrence of Justice Kavanaugh, to which Justices Kagan and Jackson joined, recognizes this issue has not been resolved.  However, Justice Kavanaugh takes the view the Sheetz opinion does not prohibit local government from tailoring land-use fees based upon the effect of an entire development in toto rather than requiring that the fee have a nexus to the effect of a single property owner.

Finally, the role of the Pacifica Legal Foundation must be noted. As did the Cato Institute, Pacifica filed an amicus curiae brief.  If it were not for the efforts of his own counsel and these "friends of the court, Mr. Sheetz might still be stuck paying a nearly $24,000 "traffic fee" to build what the Supreme Court termed "a modest prefabricated house" for his wife and grandson.

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