California is the largest common-law jurisdiction where appellate courts don't follow each other—and it happened by accident. In Part 1 of this two-part episode, Michael Shipley explains how Bernard Witkin’s treatise reflections on case dicta became binding law, why the federal circuit model works differently, and what the rule costs practitioners and trial judges every day.

Key points:

• The Witkin origin story: No California Supreme Court decision actually establishes the no-horizontal-stare-decisis rule. It developed through dicta, then appeared in Witkin's first edition—which courts then cited as authority.
• The federal contrast matters for forum strategy: In the Ninth Circuit, Miller v. Gammy binds all panels within the circuit to follow the first published decision on an issue. California trial courts, by contrast, face conflicting appellate authority and must guess which rule the Supreme Court would adopt under Auto Equity—a burden one trial judge called being "appointed to the Supreme Court for temporary purposes."
• Stare decisis isn't jurisdictional (probably).
• Unpublished opinions create tension.
• The pros: California's rule allows multiple perspectives on emerging issues and prevents the first Court of Appeal decision from locking in statewide law before the Supreme Court weighs in.
• The cons: The rule creates uncertainty, burdens trial courts, and leads to inadvertent inconsistencies on procedural issues too minor for Supreme Court attention—splits that can persist for years or even decades. (In anti-SLAPP law, it took 13 years before Baral v. Schnitt decided how to handle mixed causes of action.)
• Publication practices hide the problem: Many conflicts never surface because courts strategically leave decisions unpublished, masking the frequency of divergent reasoning and making the appellate landscape harder to navigate.

Listen to Part 1 now for the full discussion on how California got here and what it costs practitioners—then tune in to Part 2, where Shipley covers forum shopping, the anti-SLAPP mixed-causes-of-action case study, and his proposed reform: precedential transfer.

In the first half of their conversation with James Mixon, Managing Attorney at California's Second District Court of Appeal, Tim Kowal and Jeff Lewis ask what is healthy AI use, and unhealthy use? To help organize—yes! To replace judgment—no! Tip: When an attorney does not read AI output before filing a brief, expect sanctions.

James draws on his role on the judicial branch AI Task Force and his monthly Daily Journal AI column to provide a practical roadmap for responsible AI use—from crafting effective prompts to avoiding the automation bias that has led to attorney sanctions across the country.

Key points:

• Treat AI as an on-demand legal treatise, not a research tool: Mixon explains how AI excels at providing background information and organizing legal concepts into digestible narratives—making it ideal for learning complex areas quickly—but should never replace verified legal research or case citation.
• The "Daedalus Doctrine" framework offers a middle path: Drawing from Greek mythology, Mixon warns against flying too high (reckless AI adoption) or too low (ignoring AI entirely), urging lawyers to use AI thoughtfully while maintaining personal judgment and verification responsibilities.
• Effective prompting is critical: Never use open-ended commands like "enhance this brief"—instead, tell AI exactly what you want and ask it to flag changes in italics or bold so you can review selectively.
• Hallucinations remain the biggest risk: Recent sanctions cases show attorneys asking ChatGPT to verify its own fabricated cases—a fatal error that demonstrates why every citation must be independently confirmed.
• Courts aren't using AI for decision-making: Current California court policy prohibits AI use "in any way that would touch a decision" to preserve public confidence over efficiency gains.
• AI works best for background learning: Mixon describes using AI to create narratives and explanations that make legal concepts stick—transforming dry doctrine into memorable stories, like having a personalized treatise writer available on demand.

Tune in to learn how to harness AI's power for legal background and organization without falling into the traps that have cost other attorneys their credibility—and thousands in sanctions.

Is your AI training data biased? And is using AI-generated reasoning plagiarism?

James Mixon, Managing Attorney at California's Second District Court of Appeal, covers troubling topics on how lawyers should, and should not, use AI. In this second part of Tim and Jeff’s conversation, James discusses how we can detect and counteract bias baked into training data. And what happens when trial judges unknowingly sign orders containing fabricated cases?

Key points:

• Legal reasoning isn't “creative” work—it's problem-solving: When we use words to solve problems, it should not be considered “plagiarism.”
• Bias detection requires active testing: AI models trained on historical data replicate past discrimination, particularly in employment, housing, and finance cases. James suggests an interesting experiment to try in your next research prompt.
• Alternative dispute resolution raises new questions: California bill Umberg 643 bars using AI for arbitration decision-making, reflecting concern that people signing arbitration agreements assume human decision-makers. If contracts explicitly state "AI dispute resolution," that might be acceptable—but not if buried in fine print.
• When should you disclose your AI use? Depends on where the use falls on a spectrum of “organization” and “discretion/judgment.”
• Trial court orders present a growing risk: Judges should strip proposed orders down to essentials: parties, motion, ruling, hearing date.
• AI lacks "ethos"—for now: AI currently can't replicate the credibility and reputation that make people trust human experts. This may change as AI systems develop track records, but for now, judicial decision-making requires the human judgment that builds public confidence in courts.
• Looking backward creates civil rights risks: AI trained on historical data is inherently conservative. Some models predicted Brown v. Board of Education would be affirmed based on precedent—a stark reminder that purely probabilistic decision-making can't account for moral progress.

What AI uses do you find most attractive—and the most troubling?

Disclaimer: The views expressed by our guest, James Mixon, are his own and do not reflect the official position of the California Court of Appeal or the California Judicial Branch. AI technology and legal standards are rapidly evolving, listeners should verify current rules and consult qualified attorneys before implementing AI tools in their practice. Attorneys must independently verify all legal citations and comply with applicable rules of professional conduct.

Lemon Law lawyer Michelle Fonseca-Kamana discusses the seismic shifts in California lemon law—from the Supreme Court's decision in Rodriguez v. FCA US LLC (October 31, 2024) 17 Cal.5th 189 that effectively eliminated most used car claims, to the explosion in case filings (from 4,500 in 2015 to over 22,000 in 2023), to new legislative reforms under AB 1755 and SB 26 that impose strict timelines and mandatory pre-suit notice requirements.

Michelle also shares how she pivoted from in-person networking to social media marketing during the pandemic, built a practice around one-way fee-shifting statutes, and navigates the asymmetric litigation battlefield against billion-dollar manufacturers.

Highlights:

• Rodriguez v. FCA's impact on used-car protections: The Court limited manufacturer liability to certified pre-owned vehicles, leaving used-car buyers without recourse even when cars remain under manufacturer warranty.
• Why lemon law filings quintupled: Despite expectations that Rodriguez would reduce litigation, filings increased fivefold (2015-2023) due to declining vehicle quality, PI firm diversification, and political headwinds.
• New procedural requirements under AB 1755 and SB 26: Effective 2025, consumers must send pre-suit demand letters, wait 30 days, retain the vehicle, meet hard deadlines (one year after warranty expiration or six years from delivery), and navigate an "opt-in" system.
• One-way fee-shifting as equalizer: Song-Beverly allows consumers to bring claims without paying fees—manufacturers pay all costs if consumers prevail.
• Social media as practice-builder: Michelle built her practice through bilingual video content on Instagram, TikTok, and YouTube, generating clients and referrals without traditional marketing.
• Documentation mistakes: The biggest error is failing to keep itemized repair orders and contemporaneous complaints—gaps that become fatal under new requirements.

Tune in for insights on asymmetric consumer litigation, the intersection of statutory interpretation and real-world consequences, and how procedural reforms quietly reshape substantive rights.

You have to literally disobey an order in California to be held in contempt. But federal courts are a little more touchy-feely: they will find a contempt for violating the “spirit” of their orders. Tim and Jeff compare the Ninth Circuit's contempt finding against Apple in the Epic Games dispute, and a state litigant who got around a visitation-time order but without violating the letter of the order, so no contempt.

Meanwhile, a CEQA plaintiff that won at the Court of Appeal—only to be reversed by emergency legislation and the Supreme Court—learned the hard way that "prevailing" on the law as written means nothing if the Legislature rewrites the rules mid-case.

Key points:

• Contempt requires literal violation in California, not just bad faith. But in federal court, violating the “spirit” of an order is contempt.
• Legislative abrogation torpedoed $1.2M in CEQA fees: Plaintiffs in Make UC a Good Neighbor v. Regents won significant CEQA victories establishing that crowd noise and alternative locations must be analyzed—then watched the Legislature pass emergency legislation abrogating both holdings. After the Supreme Court reversed, the Court of Appeal denied nearly $1.2 million in private attorney general fees, calling the prior opinion "smoldering ruins, not citable precedent." The court held plaintiffs weren't "successful parties" because they failed to halt the project, even though they vindicated principles under the law as it existed when filed.
• Ninth Circuit discovery ruling survives en banc review: The court declined to rehear the Trump administration's challenge to a discovery order requiring production of federal reorganization and layoff plans, rejecting executive privilege claims without requiring plaintiffs to show bad faith. Judge Bumatay's dissent warned of a "binding dicta trap" where the panel's comments on what qualifies as deliberative could become binding precedent.
• California Supreme Court limits Public Records Act obligations: Superior Courts can issue declaratory relief even after documents are produced if the dispute is likely to recur, but the Public Records Act does not impose a statutory duty to preserve documents a public agency identifies as exempt.

California’s New Legal Rules for 2026: AI, Photo Proof of Service, and Simpler Statements of Decision

New statutes and court rules taking effect in 2026 and 2027 will change how California lawyers serve papers, preserve appellate issues, and disclose their use of artificial intelligence. Appellate attorneys Tim Kowal and Jeff Lewis focus on what actually matters in practice—what to fix now, and where the new traps are likely to appear.

The big changes:

• AI in the Courts: Rule of Court 10.430 requires courts to either ban AI use by judicial officers and research attorneys or adopt a formal AI policy with verification and disclosure requirements. Expect cautious policies, broad disclosures, and little tolerance for “the AI did it” excuses.
• One Deadline for Statements of Decision: AB 515 eliminates the short-trial/long-trial distinction. If you want a statement of decision, you must request it before submitting…and you should do it in writing.

Other changes worth noting:

• Photo Proof of Service: Starting January 2027, AB 747 requires process servers to document service attempts with photographs showing GPS coordinates and timestamps.
• Court Reporter Disclosure: AB 711 requires meet-and-confer declarations to disclose whether court reporter attendance was discussed and the outcome.
• Electronic Service Authorized: SB 85 allows courts to approve service by email or electronic means when traditional service fails.
• Expanded Mediation Authority: Courts may order mediation in cases up to $75,000 if at least one party requests it and no discovery disputes are pending.
• AI Disclosure in Bankruptcy Court: The Southern District of California Bankruptcy Court now requires disclosure of AI tools used and certification of independent accuracy review.

Listen now to understand what to change in your templates and where the next procedural missteps are waiting.

AI-sanctions might get eyeballs, but the bigger sanctions are still for plain old bad lawyering. Jeff also raises this ethical and pragmatic question: who defends the lawyer when sanctions threaten the client? Should counsel facing an OSC retain separate counsel for the sanctions component to avoid divided attention and better protect client interests? What if the costs of independent counsel are likely to exceed the sanction?

• $25K for using Anti-SLAPP as a litigation weapon. A bare-bones anti-SLAPP was amplified by record emails suggesting the strategy was to inflict cost and pain rather than win on the merits.
• $13K for relitigating the merits through a fee appeal. The appeal purported to challenge fees, but largely recycled arguments already rejected in the prior appeal. The court finds the effort both objectively meritless and subjectively aimed at rehashing settled ground.
• <$2K for fabricated authority & thin explanations. Schlichter v. Kennedy results in $1,750 against an attorney who relied on nonexistent or inapposite citations and offered credibility-challenged explanations about verification methods. After the court’s exhaustive point-by-point teardown, the monetary sanction seems merciful.
• Pro per’s sanction is dismissal of appeal. In Arno Kuglua v. Young Park, the Court of Appeal dismisses an appeal for failure to support arguments with proper authority.

Also: AI guidance from the courts**:** The California Courts of Appeal publish user-facing AI guidance emphasizing verification, independent source-checking, and personal accountability for filings—even if AI assists with drafting.

A scandalous Netflix documentary called an unconventional sex-based therapy business an “orgasm cult,” all based on a sole source whose account has several flaws. But the Court of Appeal dismissed the defamation case on anti-SLAPP grounds. Tim and Jeff discuss whether any California defamation case against a media company could survive the one-two punch of anti-SLAPP and NY Times v. Sullivan. They also discuss California’s unique approach to standing—it’s not jurisdictional, it’s purely pragmatic.

• Anti-SLAPP meets documentary defamation: OneTaste Inc. v. Netflix illustrates how courts evaluate actual malice when the plaintiff is treated as at least quasi-public, and how journalistic discretion can sink a claim even where the plaintiff says it provided contrary evidence before publication. Tim flags the built-in squeeze: if public-figure status and the controversy are intertwined, the plaintiff may need discovery to prove merit, but cannot get discovery without first showing merit.
• Standing without injury, by design, not accident: Kashanian v. National Enterprise Systems tees up a standing fight over technical FDCPA disclosure issues, think small-font compliance, with no alleged real-world harm. The takeaway is not subtle: in California, legislative authorization can do a lot of work, and no harm does not necessarily mean no case.
• When the statute creates the bounty, sanctions become the guardrail: The hosts debate whether CCP 128.5 and CCP 128.7 actually deter nuisance filings when the underlying enforcement scheme invites penalty-driven litigation. Is it appropriate—or wise—to use our courts as civil bounty enforcement, devoid of any harm requirement?
• Juror privacy is real, ask the team that wrote the $10,000 check: Don’t research prospective jurors on social media.
• Minute entry, real consequences: A timing skirmish over whether a minute entry can function as an appeal-triggering order ends, for now, with the U.S. Supreme Court declining review. Be conservative in calculating the time to appeal