Banke's rulings emphasize substance over labels as she seeks new term

Less than two months before voters decide whether to keep her on the bench, Justice Kathleen M. Banke wrote the opinion that struck down San Francisco's voter-approved tax on vacant apartments.

In Debbane v. City and County of San Francisco, A172067, filed Sept. 11, a unanimous 1st District Court of Appeal panel held that Proposition M, which won 54.5% of the vote in 2022, conflicts with the Ellis Act, the state law barring local governments from forcing owners to rent their property.

The measure was designed to "require owners of residential properties, on pain of significant taxation, to put such properties to residential use and keep them in such use," Banke wrote.

Banke, on Division One since 2009, is seeking another 12-year term Nov. 3.

In recent opinions, Banke has looked to what a statute, contract or complaint actually does rather than how a party labeled it.

That approach cut against a Marin County ratepayer in Hiller v. Marin Municipal Water District, A171271, filed June 2. After the district won an uncontested judgment validating its water rates, she sued under Proposition 218, styling her claims as mandamus and constitutional challenges. Looking at what the suit sought -- invalidating the rates and obtaining refunds -- Banke held the earlier judgment barred it.

In California Dental Assn. v. Delta Dental of California, A170821, filed Oct. 10, 2025, dentists claimed Delta breached an implied duty of good faith by changing its fee rules. Banke noted a class settlement expressly let Delta amend those rules on notice, and courts generally cannot imply a covenant contradicting such a grant.

In Wilkins v. Cruise LLC, A173832, filed July 14, she ordered arbitration of a suit by a Cruise employee injured off duty in one of the company's driverless cars, holding the app's "sign-in wrap" screen gave adequate notice of the arbitration terms. Having alleged Cruise and two General Motors affiliates were one another's agents, the plaintiff could not treat the affiliates as outsiders.

The same approach favored a criminal defendant in People v. Newt, A169899, filed March 30. Banke reversed a Contra Costa County man's felony conviction for "receiving" a large-capacity magazine. Because the statute separately punishes possession as a lesser offense, she read "receives" to require some form of exchange, like the buying, selling and lending listed beside it. Prosecutors had proved only possession.

The state Supreme Court unanimously adopted her reading of another criminal statute in February. In People v. Morgan (2024), Banke held assault is not a lesser included offense of resisting an officer by force or violence because resisting requires no "present ability" to injure, upholding the conviction of a Sonoma County man who aimed an unloaded gun at officers.

Her approach drew a dissent in Doe v. Kachru, A168669, filed Oct. 13, 2025. A mother alleged her obstetrician performed a vacuum-assisted delivery over her repeated refusals. Banke revived her medical battery claim but upheld dismissal of a gender-motivated violence claim, concluding Civil Code Section 52.4 requires "some discriminatory motive," which the mother had not alleged.

Presiding Justice James M. Humes dissented, writing the majority required proof of gender animus, an element "nowhere to be found in the statute."

The opinions echo advice Banke gave lawyers in a 2016 Daily Journal interview.

"It really is about telling a good, tight story that is completely supported by the record and supported by legal authority," she said.

Banke spent more than two decades as an appellate lawyer at Crosby, Heafey, Roach & May and Reed Smith LLP, leading the firms' appellate groups. Gov. Arnold Schwarzenegger appointed her to Alameda County Superior Court in 2006 and to the 1st District in 2009.

Banke has also chaired the Judicial Council committee that sets the statewide continuing education curriculum for appellate justices and staff attorneys, and she is chief consulting editor of CEB's California Civil Writ Practice.