Legal News & Tidbits: Gun ban ok, but not gas ban, and a worry about diversity on the bench

Timothy Kowal, Esq.
May 5, 2023

Courts upheld a gun ban but overturned a gas ban, and found yet another strange application of section 998 offers. Judges and clerks are more becoming more racially diverse, but come from a very short list of schools. And PJ Rubin talks about the best kind of oral argument.

💥Cal. Ct. App. says California’s ban on assault weapons is constitutional. The court in People v. Bocanegra, 2023 S.O.S. 1228 distinguished the U.S. Supreme Court decision Bruen. Bruen “made clear the Second Amendment protects a law abiding citizen’s right to possess a handgun for self-defense, whether in the home or outside the home.” But in this case, “There is simply no interpretation of the facts here that suggests defendant possessed the AR-15 rifle for self-defense at the relevant times, a fact defendant’s appellate counsel conceded at oral argument.” Also , “Bruen did not analyze whether a particular type of firearm is protected under the Second Amendment. Rather, Bruen focused on whether New York’s statutory public-carry licensing scheme violated the Second Amendment right to carry handguns publicly for self-defense.” (via MetNews.)

🔥Ninth Circuit Spikes Berkeley's Gas Ban. in a unanimous opinion, the U.S. Court of Appeals for the Ninth Circuit ruled that the nation’s first ban on natural gas, put in place by the City of Berkeley in 2019, violates federal law. The three judges found that the city’s ordinance was preempted by the Energy Policy and Conservation Act of 1975, which prohibits the implementation of regulations that favor one type of fuel over another. (Via New Geography.)

📃CCP §998 Applies Where Case Settled for Less Than Offer. You read that right: there was no judgment. The parties settled, and because the settlement was less than the offer, section 998 applied. Acting Presiding Justice Ronald B. Robie dissented, arguing that the cost-shifting provisions of §998 apply only where the plaintiff suffers a defeat at trial or gives up the fight, not where there’s a settlement. (Via MetNews.)

🏆 Judgment Creditor Cannot Seize Academy Award ‘Oscar’. The Academy has a right of first refusal to buy the Oscar back for $10. (Via MetNews.)

👩🏽‍⚖️ Diverse in some ways but not in others: When it comes to law schools, Biden’s judge picks aren’t diverse -- Of the president’s 30 nominees to the 9th Circuit and California district courts, 25 have attended one of six elite law schools. (Via Ben Shatz.) Data in [a recent] study suggests that 10 law schools were responsible for approximately 33% of the federal clerk hires in the nation, a situation that concerns some legal experts. (Also via Ben Shatz.)

😨 Uncomfortably conversational: Presiding Justice Rubin says that, at oral argument, lawyers should be "comfortable -- but not too comfortable.” Justice Rubin wants “a serious conversation” and but “it's hard for lawyers to have conversations in that sense unless they're basically comfortable." At any rate, don’t call the panel “you guys”: "'you guys' is not the correct way of referring to us.'" (Via Ben Shatz.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes summaries of cases and appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.

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