Ninth Circuit rule in California

2026The cases are, of course, not binding (see Lorenzo, supra, 116 Cal.App.5th at p. 276), as we ourselves have noted in People v. Mackey (2015) 233 Cal.App.4th 32 , 87: “ ‘we disagree with the Ninth Circuit’s test and are not bound to follow it, even on constitutional questions.’ ” Beyond that, we agree with Lorenzo that the cases “provided little or no analysis to support [their] overly broad interpretation of the ministerial exception.” (Lorenzo, at p. 276.) In Markel, the Ninth Circuit held that the ministerial exception “encompasses all adverse personnel or tangible employment actions between

2026(See, e.g., People v. Mackey (2015) 233 Cal.App.4th 32, 87 [“we disagree with the Ninth Circuit’s test and are not bound to follow it, even on constitutional questions.”].) Baum is also an outlier, its holding rejected in numerous other cases.

2018(Dowell v. Biosense Webster, Inc. (2009) 179 Cal.App.4th 564, 578 (Dowell) [noting how California does not follow the Ninth Circuit's exception for "narrow-restraint[s]" on practicing a profession].) 15 "Section 16600 expresses California's strong public policy of protecting the right of its citizens to pursue any lawful employment and enterprise of their choice.

2015(Dowell v. Biosense Webster, Inc. (2009) 179 Cal.App.4th 564, 576 (Dowell) [noting how California does not follow the Ninth Circuit’s exception for “narrow-restraints” on practicing a profession].) Defendants seem to make two arguments based on section 16600.

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2014Although we are not precluded from citing unpublished decisions of lower federal courts (see Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 787, fn. 6 [ 11 Cal.Rptr.3d 522 ]), we assign little persuasive value to such a decision if, as here, the court offered nothing more than a cursory discussion of the legal issue.

2014Although we are not precluded from citing unpublished decisions of lower federal courts (see Bowen v. Ziasun Technologies, Inc. (2004) 116 Cal.App.4th 777, 787, fn. 6 [ 11 Cal.Rptr.3d 522 ]), we assign little persuasive value to such a decision if, as here, the court offered nothing more than a cursory discussion of the legal issue.

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2016For example, the Twiggs Court framed the presumption of vindictiveness as relating to the appearance of vindictiveness and emphasized that "the principles discussed in this opinion are designed to relieve the defendant of the 'apprehension of vindictiveness.' *826 " ( Twiggs , supra , 34 Cal.3d at p. 374 , 194 Cal.Rptr. 152 , 667 P.2d 1165 ; see id. at pp. 369-370, 371, 374, 194 Cal.Rptr. 152 , 667 P.2d 1165 .) Likewise, in Bower , the Court relied on the Ninth Circuit's rule that " 'the mere appearance of vindictiveness is enough to place the burden on the prosecution.' " ( Bower , supra , 38

2025As the Court made clear in Landgraf, new rules that ‘speak to the power of the court rather than to the rights or obligations of the parties,’ such as jurisdictional rules, apply even to pending cases without provoking retroactivity concerns.” (Ibid.; Landgraf, supra, 511 U.S. at p. 274 [the United States Supreme Court has “regularly applied intervening statutes conferring or ousting jurisdiction” to cases before it “whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed”].) Whether the interpretation of the Preemption Decision is appropriately consider

2025As the Court made clear in Landgraf, new rules that ‘speak to the power of the court rather than to the rights or obligations of the parties,’ such as jurisdictional rules, apply even to pending cases without provoking retroactivity concerns.” (Ibid.; Landgraf, supra, 511 U.S. at p. 274 [the United States Supreme Court has “regularly applied intervening statutes conferring or ousting jurisdiction” to cases before it “whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed”].) Whether the interpretation of the Preemption Decision is appropriately consider

2025The statute is to be liberally construed to accomplish this purpose.’ ” (Davis, at p. 450.) In Davis, the Ninth Circuit applied this rule where a taxpayer owned “industrial property being developed for lease, and improved agricultural land leased for sugar cane cultivation and livestock grazing. [The t]axpayer also owned a sea fishery adjacent to its agricultural property.” (Davis v. U.S., supra, 589 F.2d at p. 447.) Hawaii condemned the sea fishery and portions of the agricultural land and the “[t]axpayer used the condemnation proceeds to build a storm drainage and water system, grade land, a

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023Under California law, a Faretta motion is timely only if made “a reasonable time prior to the commencement of trial.” (People v. Windham (1977) 19 Cal.3d 121, 128 (Windham).) And “once a defendant has chosen to proceed to trial represented by counsel,” his motion for self-representation is “addressed to the sound discretion of the court.” (Ibid.) Under the Ninth Circuit rule, a Faretta motion is “timely as a matter of law if made before the jury is impaneled, so that the motion must be granted unless it is shown that the motion is made for the purpose of delay.” (People v. Burton (1989) 48 Cal

2023In such a case the motion for self-representation is addressed to the sound discretion of the trial court . . . .” (Windham, supra, 19 Cal.3d at p. 128, fn. 5 .) More recently, the Supreme Court reaffirmed the Windham standard, explaining that the Court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely,” and questioning the rationale for the Ninth Circuit cases “suggesting that ‘requests made “weeks before trial” ’ are invariably timely.” (People v. Lynch (2010) 50 Cal.4th 693, 722, 724 (Lynch).) And in People v. Johnson (2019) 8 Cal.5th 475 (Johnson),

2023In such a case the motion for self-representation is addressed to the sound discretion of the trial court . . . .” (Windham, supra, 19 Cal.3d at p. 128, fn. 5 .) More recently, the Supreme Court reaffirmed the Windham standard, explaining that the Court has “held on numerous occasions that Faretta motions made on the eve of trial are untimely,” and questioning the rationale for the Ninth Circuit cases “suggesting that ‘requests made “weeks before trial” ’ are invariably timely.” (People v. Lynch (2010) 50 Cal.4th 693, 722, 724 (Lynch).) And in People v. Johnson (2019) 8 Cal.5th 475 (Johnson),

2023(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ; People v. Sandee (2017) 15 Cal.App.5th 294, 304 [“We are not bound by Ninth Circuit precedent [citation], and we do not find [defendant’s] analysis to be persuasive because it does not follow the approach approved by the California Supreme Court . . . .”].) Burris next argues that even if we apply California law, his Faretta request on the day of trial was not untimely.

2023(See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 ; People v. Sandee (2017) 15 Cal.App.5th 294, 304 [“We are not bound by Ninth Circuit precedent [citation], and we do not find [defendant’s] analysis to be persuasive because it does not follow the approach approved by the California Supreme Court . . . .”].) Burris next argues that even if we apply California law, his Faretta request on the day of trial was not untimely.

2022Casey cites Butler v. Elle, supra, 281 F.3d at page 1024, in which the Ninth Circuit held the doctrine of qualified immunity merges with the merits in a case alleging judicial deception in the procurement of a search warrant.