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California Appellate Report 
Commentary on recent Ninth Circuit.
Post Frequency: 2.6/day Last Entry: November 20, 2009 at 17:15:00 Recent Entries: 860
By Shaun Martin
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Reed v. Town of Gilbert, Arizona (9th Cir. - Nov. 20, 2009)
Posted on November 20, 2009You know why, inter alia, my second- and first-grade children don't read the Federal Appellate Reporter? No pictures.But that's all changing. Check out page 15399 of the slip opinion by Judge McKeown. Yay! A picture!Sure, it's just a picture of a sign on some grass...
Galleria Plus v. Hanmi Bank (Cal. Ct. App. - Nov. 19, 2009)
Posted on November 19, 2009I appreciate that this opinion is only three (double-spaced) pages long. That's nice.I just wish I agreed with it.I understand where Justice Epstein's coming from. I really do. But I just don't agree.Were I on the Court of Appeal, I could write a dissent that would be even more concise than Justice Epstein's opinion...
Perry v. Proposition 8 Official Proponents (9th Cir. - Nov. 19, 2009)Nov.
Posted on November 19, 2009I teach it to my first-year students in civil procedure. But apparently the lesson hasn't filtered down to lawyers for the Liberty Counsel in Lynchburg, Virginia.So Judge McKeown has to spell it out for them.Here's the scoop: You can't intervene in a lawsuit if your only beef with an existing party is over litigation strategy...
In Re Karen Golinski (9th Cir. - Nov. 18, 2009)
Posted on November 19, 2009"Yesterday, my good buddy Steve entered this order that said that Brad was entitled to get benefits for his same sex husband. (Which Shaun dutifully mentioned here.) Today, I'm entering this order that says that Karen gets similar benefits for her same sex wife...
In Re Brad Levenson (9th Cir. - Nov. 18, 2009)
Posted on November 18, 2009You don't see many Ninth Circuit orders/opinions that are actually signed by the author these days. It's typed, or there's a stamp, or whatever. So it's sort of cool to see an actual signature.Plus, this is an interesting case. Brad Levenson is a deputy public defender, and he's had a same-sex partner for 15 years -- and has been married to him (in California) since 2008...
People v. Phu (Cal. Ct. App. - Nov. 17, 2009)
Posted on November 17, 2009I bet this case comes out differently if it's a civil lawsuit as opposed to a criminal restitution order.Which is interesting, because the standard of proof is supposed to be higher in criminal cases. But as far as setting criminal restitution goes, we're nonetheless a lot more willing to speculate than we permit juries (or judges) to do in a civil case.
U.S. v. Liera (9th Cir. - Nov. 4, 2009)
Posted on November 17, 2009I'd have thought that it's okay to admit evidence from a taped interrogation when the audio tape from the first interrogation didn't work and so the government interrogated the suspect a second time -- and that that'd be the case even if the reiterrogation resulted in missing the arraignment calendar that'll happen in the next hour or so and hence delayed the arraignment another day...
Merrill Lynch v. Arelma, Inc. (9th Cir. - Nov. 13, 2009)
Posted on November 16, 2009When the district court's way too perfunctory, the Ninth Circuit can be a bit perfunctory as well. Hence this six-page (double-spaced) order, which not only reverses the district court, but takes the case away from the district judge as well.
Mangano v. Verity, Inc. (Cal. Ct. App. - Nov. 16, 2009)
Posted on November 16, 2009You hear about "out of control" verdicts all the time. Then there are decisions like this one.Thomas Mangano sues his employer, Verity, for disability discrimination. He loses on summary judgment. And, three weeks later, Verity fires him.Verity appeals the trial court's ruling...
People v. McRoberts (Cal. Ct. App. - Nov. 2, 2009)
Posted on November 13, 2009You can have one of two reactions to this fact pattern, which involves someone being committed (after their period of incarceration has ended) as a sexually violent predator for an indeterminate period. Indeed, you can have -- as I do -- both.Here's the scoop about Daniel McRoberts...
Cassell v. Superior Court (Cal. Ct. App. - Nov. 12, 2009)
Posted on November 12, 2009I'm going to have to go with Justice Jackson on this one, rather than Justice Perluss. Which makes the vote 3-1.Yes, the statute says that mediation stuff is confidential and inadmissible. Yes, the statute broadly defines what I've called "stuff," and includes any "oral and written communications" made ?for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation...
Matsuo v. United States (9th Cir. - Nov. 12, 2009)
Posted on November 12, 2009This morning, Chief Judge Kozinski writes one of his classically informally, perfunctory opinions. Full of contractions and the like, it basically says -- shortly and sweetly -- "You lose, and you lose because you lose. This is a sufficiently easy case that I don't even have to bother telling you why you lose in detail because it's so obvious...
Kaye v. Trustees of San Diego County Public Law Library (Cal. Ct. App. - Nov. 10, 2009)
Posted on November 11, 2009Things were not happy at the San Diego County Public Law Library. Read the whole thing for a peek inside an office that was at least partially dysfunctional. Whether the result of one whacko staff member or a broader institutional problem is, of course, the genesis of the dispute...
National Parks v. Kaiser Eagle Mountain (9th Cir. - Nov. 10, 2009)
Posted on November 10, 2009Here's a quick quiz for the afternoon. It's an incredibly easy one, so if you fail it, you should give yourself a serious spanking, and study some more regarding who's who on the Ninth Circuit.Judges Pregerson, Paez and Trott are drawn for an environmental law case...
In Re Matter of Smith (9th Cir. - Nov. 10, 2009)
Posted on November 10, 2009For all those civil lawyers out there (and even you criminal folks), let me ask you this: How many hours do you think it would take you -- total -- to defend a complex multi-count fraud, money-laundering and conspiracy felony trial in federal court? Five hundred? A thousand? More?Plus, ask yourself this: If a client came in and asked you to offer them a flat fee, what would you quote them? Assume, of course, that you had the expertise to do the case...
People v. Hernandez (Cal. Ct. App. - Nov. 9, 2009)
Posted on November 09, 2009I can count on one hand the number of times I've seen a petition for rehearing actually succeed in changing the result. It's generally one of the biggest wastes of time -- at least in terms of practical effect -- that you can do in the Court of Appeal...
U.S. v. Ruckes (9th Cir. - Nov. 6, 2009)
Posted on November 09, 2009I feel like I shouldn't have to say this. Yet the same basic fact pattern -- with only slight variations -- comes up again and again.Let's assume you have some crack cocaine and a loaded weapon with you in your vehicle. Is it really wise to go over 80 mph on the I-5? Remember: that's going to give the police probable cause to stop you...
Toal v. Tardif (Cal. Ct. App. - Oct. 30, 2009)
Posted on November 09, 2009I thought I'd have a problem with this one. But in the end, I probably don't. At least with the end result. The Toals buy a house from the Tardifs and have a beef with them, and end up suing. Two months after the Tardifs answer, attorneys for both parties say in court that they hope to arbitrate, and the next month the attorneys sign a stipulation to arbitrate...
Credit Suisse First Boston v. Danning, Gill, Diamond & Kollitz (Cal. Ct. App. - Nov. 3, 2009)
Posted on November 06, 2009There are few areas of the law about which I know so strikingly little that I can't tell you in the slightest whether an opinion is totally wrong or totally right. But this is one of those areas.Judgment debtor statutes, ORAP liens, etc. It's all Greek to me...
People v. Medlin (Cal. Ct. App. - Oct. 29, 2009)
Posted on November 06, 2009This was especially chilling to me. If only because I could only imagine what it feels like to be totally helpless, and under someone else's total control, when they stick a feeding-tube into your abdomen (rather than your stomach, where it belongs) and you slowly, slowly die over the next several days -- with your eyes wide open, helpless and in pain -- as food continues to pump in your gut and the people in control of your very life do nothing...
U.S. v. Hinkson (9th Cir. - Nov. 5, 2009)
Posted on November 05, 2009Sometimes it helps to take things in chronological order, if only to see how things develop over time.(1) On May 30th of last year, the panel issued this opinion. [Pardon me for the lack of links right now; I'm in DC using a Mac, and can't quite figure out how to get the links to work -- I'll figure it out soon enough...
People v. Reyes (Cal. Ct. App. - Oct. 30, 2009)
Posted on November 04, 2009It's funny. As I was reading this case, which involves a kidnapping for ransom, I was thinking to myself the whole time: "I hope these guys get a huge amount of time in prison." Because what they did -- while not the worst kidnapping in the world (by far) -- still seemed totally brazen and wrong...
Zhang v. Superior Court (Cal. Ct. App. - Oct. 29, 2009)
Posted on November 04, 2009I like it.Justice Richli authors an opinion that disagrees with another decision of the Court of Appeal and that explains this disagreement both extremely well and extremely concisely. That's not easy.Personally, I have a tendency -- as readers likely well know -- to ramble on, especially when I disagree with something...
Applied Medical Distribution Corp. v. Surgical Company B.V. (9th Cir. - Nov. 3, 2009)
Posted on November 03, 2009A battle of the big law firms. It's Jones Day -- with 2300+ lawyers (represented here by svelte Brian Hoffstadt) -- on the side of the plaintiff-appellant, and Baker & McKenzie -- with 3800+ attorneys (represented here by the tanned, rested and ready Bruce Jackson) for the defendant-appellee...
Norse v. City of Santa Cruz (9th Cir. - Nov. 3, 2009)
Posted on November 03, 2009Giving a Nazi salute ain't exactly nice. It can also properly get you kicked out of a City Council meeting. Or so the Ninth Circuit holds today.Judge Tashima dissents, arguing that the salute was silent and far from disruptive, and hence that the plaintiff's ejection might well have been in retaliation for his viewpoints...
U.S. v. Garcia-Villalba (9th Cir. - Nov. 2, 2009)
Posted on November 02, 2009Keeping with today's "light reading is good reading" theory, here's another opinion in which everything after the first couple of sentences is merely support for what you already know.Though this one has a twist. Here, you aren't actually told how the opinion comes out at the outset...
Vivendi S.A. v. T-Mobile USA (9th Cir. - Nov. 2, 2009)
Posted on November 02, 2009Here's another example of an opinion that really says virtually all that need be said in the first paragraph. Which reads:This appeal concerns a French corporation?s allegations that a German corporation and a Polish billionaire colluded fraudulently in Europe to wrest control of a Polish wireless telephone company from the French corporation...
U.S. v. Kilbride (9th Cir. - Oct. 28, 2009)
Posted on October 30, 2009There's a lot about Judge Betty Fletcher's opinion in this case that's very good. Including a nice (and accurate) primer about how lower courts properly interpret and apply precedent from a fractured Supreme Court opinion in which there's no majority opinion...
People v. Tuggles (Cal. Ct. App. - Oct. 29, 2009)
Posted on October 29, 2009Read pages 4 through 12 of this opinion and see if you had the same reaction that I did.My reaction was an immensely palpable sense that even though I'm on the same planet (indeed, in the same country and even the same state) as every one of the participants, I nonetheless live in a totally -- completely -- different world...
311 South Spring Street Co. v. Dep't of General Svcs. (Cal. Ct. App. - Oct. 28, 2009)
Posted on October 29, 2009Here's a hypothetical. Tell me how you think it's should come out.Landlord rents office space to Tenant. Tenant breaches the lease and stops paying, and Landlord sues. Landlord wins, and the trial court enters a judgment against Tenant for $5.4 million plus 12 percent per year postjudgment interest...
Cohen v. DIRECTV (Cal. Ct. App. - Oct. 28, 2009)
Posted on October 28, 2009I'm glad that the Court of Appeal decided to publish this opinion. I guess. Because it clearly meets the standards for publication. Even if that's because its holding seems profoundly pernicious.It's a class certification case. DIRECTV allegedly heavily advertised that the channels in its HD package "were in the ...
Law Offices of Andrew Ellis v. Yang (Cal. Ct. App. - Oct. 27, 2009)
Posted on October 28, 2009Think that the other side's anti-SLAPP motion is going to prevail? Forgot (or were unable) even to file an opposition to the motion?No matter. You may perhaps have to pay their attorney's fees and costs. But as long as the court hasn't yet issued a tentative, you can still dismiss the lawsuit without prejudice and file it again -- indeed, you have an absolute right to do so, and the court is thereafter without jurisdiction to decide the anti-SLAPP motion...
Mohamed v. Jeppesen Dataplan (9th Cir. - Oct. 27, 2009)
Posted on October 27, 2009Even beyond its mere presence (which is significant itself), there are two additional things worth mention about the Ninth Circuit's order this morning that took en banc the "private lawsuit against enhanced interrogation" opinion.First, this shows both the upside as well as downside of getting a really good panel draw...
People v. Munoz (Cal. Ct. App. - Oct. 13, 2009)
Posted on October 27, 2009Here's a lesser known downside to performing a drive-by shooting: You may miss and end up accidentally shooting your own cousin in the chest.You're not psyched about spending 58+ years in prison. You're even less psyched to be doing so for shooting someone you like and had no intention of harming...
Myers v. Trendwest Resorts (Cal. Ct. App. - Oct. 26, 2009)
Posted on October 26, 2009It's a tale of two cities. Or, here, a tale of two different versions, and two different takes.On the one hand, we have plaintiff's factual recitations and arguments on appeal. Which assert that plaintiff was severely sexually harassed and that the trial court should thus have granted a JNOV notwithstanding the jury's finding of no liability...
U.S. v. Rivera-Alonzo (9th Cir. - Oct. 26, 2009)
Posted on October 26, 2009Sometimes judges write an opinion so that it seems obviously correct, while relegating the only relevant discussion -- an analysis of the losing side's best argument -- to a footnote. That's what happens this morning.Check out footnote four. Judge Randy Smith writes a good opinion, and I'm not saying that it's necessarily wrong...
In Re Ramon M. (Cal. Ct. App. - Oct. 22, 2009)
Posted on October 23, 2009I've seen a lot of obscenities used in opinions published by the California Court of Appeal. Lots. They come from quotations, of course. Often by the defendant. When they say "f**k" in the transcript, for example, or to the police, we generally print the whole word...
U.S. v. Van Alstyne (9th Cir. - Oct. 22, 2009)
Posted on October 23, 2009It's a sad commentary on recent financial debacles that my principal reaction to this case was: "What?! You ran a Ponzi scheme and only defrauded 450 (mostly elderly) investors of a measly $10 million?! Chump change."Such small multi-million dollar Ponzi schemes were (as here) so 1990s...
Parth v. Pomona Valley Hosp. Med. Center (9th Cir. - Oct. 22, 2009)
Posted on October 22, 2009Here's another case -- and there are assuredly many -- that in my mind clearly disproves our Chief Justice's assertion that appellate judges properly merely "call balls and strikes."It's a FLSA wage-and-hour case. Some nurses wanted 12-hour, rather than 8-hour, shifts...
Crockett & Myers v. Napier (9th Cir. - Oct. 21, 2009)
Posted on October 21, 2009There's a value to a referral to another attorney. That's self-evident. Lawyers will pay for a referral of a good case.But even more importantly, the Ninth Circuit holds today that the value of this referral is recoverable in quantum meruit.Admittedly, this was a good case in which to so hold...
U.S. v. $186,416 in Currency (9th Cir. - Oct. 20, 2009)
Posted on October 20, 2009Here's a timely opinion. Particularly given the Obama administration's recent statement that it will generally no longer go after medical marijuana clinics as long as their activities are legal under state law. (Needless to say, the focal point of this exception is right here in California...
Rehman v. DMV (Cal. Ct. App. - Oct. 20, 2009)
Posted on October 20, 2009Feel pretty strongly about following the plain language of a statute? How do you think this one comes out: Section 13353.2 of the Vehicle Code allows someone to have their license immediately suspended if they have a commercial license (e.g., are a truck driver) and have a blood alcohol content of 0...
People v. Smith (Cal. Ct. App. - Oct. 19, 2009)
Posted on October 19, 2009Some opinions write themselves.For example, here's all I need to tell you about this one. First, the appeal. Ronald Smith alleges that there was insufficient evidence to support his conviction for making criminal threats to his former cohabitant, S...
In Re Complaint of Judicial Misconduct (9th Cir. - Oct. 19, 2009)
Posted on October 19, 2009Chief Judge Kozinski says: "You think I'm 'overwhelmed' with judicial miscondut complaints?! You couldn't be more wrong. They're easy. It only takes four paragraphs to dismiss 'em."This is a pretty classic Kozinski resolution of a judicial misconduct complaint...
Jensen v. FTB (Cal. Ct. App. - Oct. 14, 2009)
Posted on October 16, 2009Craig and Sally Jensen should be glad I'm not on the California Court of Appeal. Because I'd have likely sanctioned them.The Jensens, alongside their lawyers (Jonathan Lappen and Kendrick Moxon), sued the FTB to recover some taxes they paid to California on the ground that Proposition 63 -- which imposed a one percent state income tax on incomes in excess of $1 million in order to pay for mental health services -- was unconstitutional because the wealthy are a "suspect class" and the statute was not narrowly tailored to benefit this class...
Nazir v. United Airlines (Cal. Ct. App. - Oct. 9, 2009)
Posted on October 15, 2009If you haven't read this one already, you definitely should.It's a damning indictment of a lot of things. Of Littler Mendelson. Of procedural complexity and obfuscation. Of summary judgment in employment cases. Of big-firm practice. At least as applied in a particular case...
People v. Henning (Cal. Ct. App. - Oct. 14, 2009)
Posted on October 14, 2009Bored with the typical vacation? I got a new idea. First, stay awake for about a full week. Think that's going to be hard? Use crystal meth every day. Also spice in some ecstacy, crack, alcohol, and hallucinogenic mushrooms. That should get you going...
People v. Vasquez (Cal. Ct. App. - Oct. 13, 2009)
Posted on October 13, 2009This is why you might want to think twice before pulling into a fast-food restaurant in Inglewood. Something to which I can personally attest, having been held up at gunpoint myself in that fine locale (albeit not at a fast food joint).As far as I -- or anyone else -- can tell, Gilbert Vasquez and his fellow gang members killed Juan Lopez, without word or provocation, solely because they mistakenly thought he was a member of another gang...
Esquivel v. WCAB (Cal. Ct. App. - Oct. 13, 2009)
Posted on October 13, 2009With the Ninth Circuit taking several days off, the California Court of Appeal helpfully steps in today and cranks out some published opinions. Some of them -- like this one -- basically answer themselves, in my mind. Here are the facts: "At the time this case arose, Tania Esquivel, a correctional officer receiving benefits under the Workers' Compensation Act (the Act), resided in the City of San Diego and was being treated for her industrial injuries by medical providers located within eight miles of her home...
People v. Bleich (Cal. Ct. App. - Oct. 9, 2009)
Posted on October 12, 2009It's Columbus Day today. Not that this matters much to most non-governmental employees, for whom today is like any other Monday. Or probably even to Christopher Columbus, may he rest in peace. It's a close call as to which of the following I'd prefer: (1) to be a famous guy in history, or (2) to be a famous guy in history for whom a disputed holiday is named and that results in my name being taken in vain by a significant fraction of the population every year...
Kinsey v. Union Pacific Railroad Co. (Cal. Ct. App. - Oct. 9, 2009)
Posted on October 09, 2009It doesn't surprise me, I guess, to find out that the potential recovery of expert witness fees in FELA cases is governed by federal law. It's a substantive statute. It's got special rules. Those rules might be frustrated if state law was held to govern disputes regarding expert witness fees in state court...
Vinole v. Countrywide Home Loans (9th Cir. - July 7, 2009)
Posted on October 08, 2009Nothing really special today. One published opinion from the Ninth, and one published opinion from the California Court of Appeal. Neither of which I'd recommend.So I'll just make a practical (and hopefully helpful) suggestion from an opinion published a little bit ago...
Los Altos El Grenada Investors v. City of Capitola (9th Cir. - Oct. 7, 2009)
Posted on October 07, 2009It's been a very good couple of weeks for owners of mobile home parks in the Ninth Circuit. Last week the Ninth Circuit reversed the district court's dismissal of a takings claim that challenged Goleta's mobile home rent control ordinance. And today the Ninth Circuit reverses the district court's dismissal of a takings claim that challenged Capitola's mobile home rent control statute...
U.S. v. Estrada-Eliverio (9th Cir. - Oct. 5, 2009)
Posted on October 05, 2009There's only one published opinion from the Ninth Circuit today. And, sadly, I knew what it was generally about purely from reading the caption.It's a criminal case. It's from San Diego. It's against a guy with a hispanic surname. From those three facts you already know that it's probably a border crimes case; most likely, being arrested for being in the United States illegally after being deported...
Jones & Libberton v. Ryan (9th Cir. - Oct. 2, 2009)
Posted on October 02, 2009There's never a good day to be on death row in Arizona. Especially on your very last day there.Nonetheless, I'm confident there's a big celebration going on -- with whatever party supplies the prisoners have available -- in the cell blocks of Arizona's death row this morning...
Millander v. County of Los Angeles (9th Cir. - Oct. 2, 2009)
Posted on October 02, 2009What happens when a three-judge panel (1) issues three separate opinions, (2) has a dubious holding (at least as I saw it), (3) contains, in the words of the concurrence, a "strong dissent," and (4) even the concurring judge says that the case is at "the outer limits of our tolerance" for official misconduct and expressly concurs only "with deep regret"?Answer: It gets taken en banc.
Pedrosa v. BRB (9th Cir. - Oct. 1, 2009)
Posted on October 01, 2009It's pretty fun to sit by designation on the Ninth Circuit. For many judges, it's a nice distraction from their typical day-to-day workload on the district court. It's also a chance to approach things at a more doctrinal and policy-based level than the usual trial level stuff...
U.S. v. Paul (9th Cir. - Sept. 30, 2009)
Posted on September 30, 2009This one's pretty unusual.First, a dissent from the denial of hearing a case en banc in which the author's basically just telling everyone how they should interpret the panel's opinion. Or to use the words of Judge O'Scannlain, "I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul?s sentence was substantively unreasonable...
People v. Smith (Cal. Ct. App. - Sept. 29, 2009)
Posted on September 30, 2009Can you rob yourself? Yes you can.Or, more precisely, you can be convicted of robbery even if the owner of the property is in on it. At least if, while you're "robbing" the owner, you "take" the property from employees who don't know that the whole thing's an inside job...
People v. Thompson (Cal. Ct. App. - Sept. 29, 2009)
Posted on September 29, 2009I mention this one if only because the concurrence written by Justice Graham -- a retired judge from Marin sitting by designation -- seems particular timely in light of current events.Justice Graham writes separately solely to write three pages excoriating prior authority that uses the term "voluntary" to describe non-forced sexual interaction between a minor and an adult...
Irigoyen-Briones v. Holder (9th Cir. - Sept. 29, 2009)
Posted on September 29, 2009I have never liked and respected Judge Kleinfeld more than I do today.It's not that Judge Milan Smith didn't write a totally respectable majority opinion. He did. One that garners the support of Judge Siler, sitting by designation from the Sixth Circuit, and hence is the law of the Ninth Circuit...
Guggenheim v. City of Goleta (9th Cir. - Sept. 28, 2009)
Posted on September 28, 2009Judge Bybee writes a very long, very detailed takings opinion this morning -- one that finds that the mobile home rent control ordinance in Goleta constitutes a regulatory taking. He's got a point. One that conservative judges (and their clerks) are often especially keen on nowadays...
MacDonald v. Kahikolu (9th Cir. - Sept. 10, 2009)
Posted on September 28, 2009Losers sometimes stay losers even after they win.Chris MacDonald was working on a whalewatching and snorkeling ship in Hawai'i (nice life!) when he performs a free dive to retrieve a mooring line that's on the sea floor around 46 feet down. But he bursts his eardrum when he tries to equalize pressure, and he then sues the owners of the ship...
Vickey Kraus v. Presidio Trust Facilities (9th Cir. - July 23, 2009)
Posted on September 25, 2009No published opinions from the Ninth Circuit today. And no new opinions published from the California Courtof Appeal (at least as of 2:00 p.m.) either.So let's go back a couple months and see if we can dredge up something interesting. Like, say, an example of how you can dredge up a lawsuit -- or at least a plethora of claims...
Clement v. Alegre (Cal. Ct. App. - Sept. 23, 2009)
Posted on September 24, 2009You don't get many appellate cases about interrogatories, much less opinions that address your standard boilerplate objections that we routinely see in everyday litigation. So when one comes out -- and when it's so strident -- it's something you should at least be familiar with...
U.S. v. Bragg (9th Cir. - Sept. 23, 2009)
Posted on September 24, 2009Commit brazen multimillion dollar tax fraud? No biggie. As long as you and your rich parents agree to pay the money back -- after you're caught, of course -- even if the U.S. wants you to spend two years or so in prison, you may well get a sympathetic judge to give you three years of probation...
In Re Judicial Misconduct Complaints (9th Cir. - Sept. 23, 2009)
Posted on September 23, 2009You think I'm joking? Here's what I said yesterday. Which describes perfectly both this order this morning as well as this other one this morning.Some parts of being the Chief Judge ain't so tough.
U.S. v. Watson (9th Cir. - Sept. 23, 2009)
Posted on September 23, 2009Scott McKensie used to sing: "If you're going to San Francisco, be sure to wear a flower in your hair. If you're going to San Fransciso. . . ." A classic 60s paeon to the City of Love.But if you're Deandre Watson, all you can do is watch this video...
In Re Complaint of Judicial Misconduct (9th Cir. - Sept. 22, 2009)
Posted on September 22, 2009This happens to be from today, but it could be from just about any day. 'Cause they all get resolved the same way; in a published (transparent) order that gets rid of the thing.So let me summarize this one, and pretty much any other one: "Someone [typically a pro se nutjob] has filed a complaint of misconduct against one or a plethora of judges...
Manela v. Superior Court (Cal. Ct. App. - Sept. 22, 2009)
Posted on September 22, 2009I agree with most of what Justice Kitching says here. We care if a parent has a seizure disorder when we assess what the best interests of a child are in a custody case. There's also been a partial waiver of the privilege here, so some discovery as to this issue can go forward...
Carolyn v. Orange Park Comm. Ass'n (Cal. Ct. App. - Sept. 21, 2009)
Posted on September 22, 2009I had to wait almost twenty full pages, but finally -- at the very end -- Justice Ikola said what I had been thinking about and wanting him to say the entire opinion.The Orange Park Community Association has a series of trails for its homeowners. But it's nice; it links up to some other public trails, and while "technically" the public isn't allowed onto the private trails of the HOA, it's not like they actually care...
APL Co. v. U.G. Co. (9th Cir. - Sept. 21, 2009)
Posted on September 21, 2009Sometimes politics matters. Other times, not so much. Or at all.The panel here consists of Judges Wallace, Thomas and Bybee. So two strong conservatives on the topside. It's reviewing an opinion by Judge Patel of the Northern District. A solid leftie...
Tichinin v. City of Morgan Hill (Cal. Ct. App. - Sept. 21, 2009)
Posted on September 21, 2009It's been a good afternoon for Morgan Hill attorney Bruce Tichinin, who just learned that the Court of Appeal not only reversed the substantial award of attorney's fees against him resulting from the trial court's grant of the City of Morgan Hill's anti-SLAPP motion, but concluded that he also had a probability of prevailing on the merits...
In Re Edward Q (Cal. Ct. App. - Sept. 17, 2009)
Posted on September 18, 2009It takes some guts (and/or amazing stupidity) to bring weed in with you to juvie hall.I bet it's even harder to keep from laughing when your only defense to the resulting charges is: "What? Pot in my shoe? How'd that get in there? That must have been from the guy I let borrow my shoes...
Dietz v. Meisenheimer & Herron (Cal. Ct. App. - Sept. 17, 2009)
Posted on September 17, 2009Be careful to whom you refer -- or accept a referral from -- a case. Otherwise a big, ugly mess may develop. By "mess", of course, I mean litigation. Because who better to file and defend a lawsuit than two lawyers fighting over the spoils of a personal injury case that hits big?This one's a San Diego case, but it could happen anywhere...
U.S. v. Contreras (9th Cir. - Sept. 17, 2009)
Posted on September 17, 2009This is how you properly ignore contrary circuit precedent. Because even if a dozen panels keep applying the same test, if the statute changed in the meantime, and the panels (and/or parties) didn't notice or discuss that change, then they aren't binding...
U.S. v. Montalvo (9th Cir. - Sept. 16, 2009)
Posted on September 16, 2009You know what I like to see in my coke dealers? A little effort. A little class.No baggy-shorts-where-you-can-see-their-underwear here. Michael Montalvo's ran his crew "much like a legitimate enterprise, requiring his employees to dress in business attire, to work 8:00 a...
Falling Off Face of the Earth (Cal. Ct. App. - Sept. 10-16, 2009)
Posted on September 16, 2009I'm sure there's a rational explanation for it. Huge conference. Administrative backlog. Budget woes. Something else. All of the above? Swine flu?But what's going on with the California Court of Appeal? Usually it cranks out around six to twelve published opinions a day...
Kahn v. Holder (9th Cir. - Sept. 9, 2009)
Posted on September 15, 2009It's relatively rare for Judge Nelson to write separately. Much less to an opinion by Judge Willy Fletcher. But it happens.When it does, there are usually somewhat weighty reasons for it. As I think there are here, albeit regarding an issue upon which reasonable minds could surely disagree...
U.S. v. Chaney (9th Cir. - Sept. 15, 2009)
Posted on September 15, 2009Don't get overly excited at the caption, you ultra-lefties out there. This is United States v. Chaney. Not the guy with the E. Who's had problems of his own, of course. But who isn't facing any actual time.Plus, it's Linda, not even Lynne. This is crack cocaine Chaney...
Dumont v. Ford Motor Co. (9th Cir. - Sept. 15, 2009)
Posted on September 15, 2009I'm swamped. Absolutely swamped. And yet I love this case. Absolutely love it. So I couldn't help but share it with you. If only because the fact that it's a bankruptcy case didn't in the slightest diminish my interest.Judge O'Scannlain writes the majority opinion, and Judge Graber respectfully dissents...
Verdugo-Gonzalez v. Holder (9th Cir. - Sept. 14, 2009)
Posted on September 14, 2009Given the plethora of semi-comptent (at best) immigration law practitioners out there, anyone should thank their lucky stars when Latham agrees to take your case (presumably, pro bono) and brief and argue the Ninth Circuit appeal.So be happy. With, nonetheless, the full realization that you could still lose...
Kazarian v. US Citizenship & Imm. Bureau (9th Cir. - Sept. 4, 2009)
Posted on September 11, 2009I find myself agreeing with Judge Nelson rather than Judge Pregerson.Poghos Kazarian may be smart and good. But he's not that smart and good. And when it comes to immigrating to the United States, that distinction makes all the difference.
Schad v. Ryan (9th Cir. - Sept. 11, 2009)
Posted on September 11, 2009One thing about death penalty cases that go on for decades is that you often learn things during the lengthy appellate process that might matter -- to most people, anyway -- about the justice of the sentence and yet that doctrinally are totally irrelevant to proper outcome...
Bearman v. California Medical Board (Cal. Ct. App. - Aug. 26, 2009)
Posted on September 10, 2009I like a little sly humor now and then. Check this out by Justice Yegan:"Here, a law enforcement officer encountered a "medical marijuana patient" who possessed marijuana and paraphernalia. He reasonably believed there might be abuse of the CUA because the doctor's letter, approving/recommending marijuana use, mentioned attention deficit disorder...
U.S. v. Juvenile Male (9th Cir. - Sept. 10, 2009)
Posted on September 10, 2009Read this one while you still can. Because it's a powerful opinion. And one that, for better or worse, I'm not sure will be around all that long.It's a classic Judge Reinhardt opinion. Well-written. Touching. Keenly aware of both doctrine as well as practice...
U.S. v. Johnson (9th Cir. - Sept. 10, 2009)
Posted on September 10, 2009Nice police work!Some police officers are serving federal warrants in Anchorage (technically, an Alaska State Trooper and a deputy with the U.S Marshals Service). While stopped at a traffic light, they saw three suspicious-looking guys standing next to a Buick in a bank parking...
Disability Law Center v. Anchorage School Dist. (9th Cir. - Sept. 9, 2009)
Posted on September 09, 2009We always talk about the "American Rule" -- that everyone pays their own lawyer (with limited exceptions) -- as opposed to the "English Rule", which provides that the loser of a civil suit pays the other side's fees. After today, however, I think I'm going to start talking about the American Rule as opposed to the "Alaska Rule"...
Levinson v. Owens (Cal. Ct. App. - Aug. 26, 2009)
Posted on September 09, 2009I'm sure (or at least hope) that the plaintiff was just going after homeowner's insurance money. This is nonetheless an example of why some people hate lawyers so much.Bert Owens, a landowner involved in a lot-line lawsuits, invites Ellyn Levinson, an attorney with the Department of Conservation, to his ranch to celebrate a recent victory that they both had obtained in a pending lawsuit...
Williams v. Hilb, Rogal & Hobbs Ins. Co. (Cal. Ct. App. - Sept. 9, 2009)
Posted on September 09, 2009Boyhood friends John Williams and Steven Simon open up a business and ask an insurance broker to get them all the insurance they need. The broker does so, and they get an insurance policy, which they quickly review. Everything seems fine until there's a fire at the business and one of their employees is severely injured...
U.S. v. Lam (9th Cir. - Sept. 8, 2008)
Posted on September 08, 2009Come on, Willie! You're smart. I know you must have thought about it, right? Why not pull the trigger?The question is whether a fugitive from state court proceedings who's filed a claim in a civil forfeiture action can have his claim struck under the fugitive disentitlement doctrine/statute...
Birotte v. Superior Court (Cal. Ct. App. - Sept. 8, 2009)
Posted on September 08, 2009Want to know how cold-hit DNA testing and analysis transpires in California? Here you go.Kinda cool, actually.
Nurre v. Whitehead (9th Cir. - Sept. 8, 2009)
Posted on September 08, 2009We know you can't (usually) have a prayer at your high school graduation ceremony. What about singing Ave Maria? Do you have a First Amendment right to do so? Or can a school legitimately prohibit such a religious performance at graduation based upon a desire for inclusiveness and previous complaints?You've got a pretty favorable pro-plaintiff panel drawn for this one, at least relatively: Judges Beezer, Tallman and Milan Smith...
Al-Kidd v. Ashcroft (9th Cir. - Sept. 4, 2009)
Posted on September 07, 2009Labor Day. A nice day to sit back and reflect upon one's relationship with work.For those spending the day at home, it's a good day to reflect upon the importance of friends, family and fun. For those spending the day at work -- as I am -- it's perhaps a good day to reflect upon the values and choices that bring you there...
In Re Craig (9th Cir. - Aug. 26, 2009)
Posted on September 04, 2009Feel bad about the size of your student loans and potential inability to repay them?Trust me. It could be worse. You could be Cheryl Craig.Ms. Craig racked up $80,000+ in student loans (including interest) attending Pima Community College and the University of Arizona to get an AA in paralegal studies in 1992, and a BA in sociology in 1996...
Carrera v. Maurice J. Sopp & Son (Cal. Ct. App. - Sept. 3, 2009)
Posted on September 03, 2009Here's a great case decided by the California Cout of Appeal earlier today that encapsulates both a variety of policy/doctrinal choices as well as exemplifies how not-so-easy being a judge is even you're in fact a "pure referee" who's merely "calling balls and strikes...
Yolo County Dep't of Child Support Svcs v. Lowery (Cal. Ct. App. - Aug. 23, 2009)
Posted on September 03, 2009Guess what happens when your 12-year old son molests your daughter (his stepsister) and gets involuntarily removed by the State from your home (and put in foster care) as a result?Answer: You have to pay the State for the foster care.
U.S. v. Inzunza (9th Cir. - Sept. 1, 2009)
Posted on September 02, 2009We had a high-profile corruption case down here in San Diego a while back involvoing three members of the City Council. It had salacious facts and involved alleged bribery to change the laws that regulate strip clubs, so the media took to calling it "Strippergate"...
People v. Hach (Cal. Ct. App. - Aug. 25, 2009)
Posted on September 02, 2009Before I read this case, I'd have told you: "Those stupid 'chat line' commercials you see on late-night television are absurd. There's no way you can meet an actual woman on those things."But now I have to revise my assessment. As follows: "Maybe you can meet a woman, but watch out...
Wences v. City of Los Angeles (Cal. Ct. App. - Sept. 2, 2009)
Posted on September 02, 2009There are lots of police misconduct/shooting cases in which the officer has acted pretty egregiously. But I gotta say that what Officer Cesar Wences did here seems relatively reasonable to me.I'm glad that his discipline was slight, and that the official reprimand he received didn't stop him from getting a promotion...
Stevens v. Tri Counties Bank (Cal. Ct. App. - Sept. 1, 2009)
Posted on September 01, 2009I've got plenty of joint accounts, not surprisingly. I've never really thought about them, which is also neither surprising or unusual, I imagine. I always thought the rule was -- as indeed it is -- that anyone who's listed on the joint account can withdraw whatever amounts they want...
People v. Thrasher (Cal. Ct. App. - Aug. 21, 2009)
Posted on September 01, 2009Carlos Thrasher skips out on $17,000+ of unpaid rent for an office he rents from his landlord, Ziad Alhassen. After Thrasher repeatedly tries to get Alhassen to forgive this amount, and after Alhassen threatens to sue, Thrasher finally agrees to pay the unpaid rent -- and signs a promissory note for it...
Hilton v. Hallmark Cards (9th Cir. - Aug. 31, 2009)
Posted on August 31, 2009It's tough to figure out who to root for when Paris Hilton sues Hallmark Cards.Does Paris Hilton get money for Hallmark putting her face and catchphrase ("It's hot") on a birthday card mimicking "The Simple Life"? Does Hallmark get to file an anti-SLAPP motion, and is it entitled to prevail?Justice O'Scannlain gets the result right, and affirms the district court's denial of Hallmark's anti-SLAPP motion (and dismisses Hilton's interlocutory appeal of the denial of its 12(b)(6) motion)...
Yokoyama v. Midland National Bank (9th Cir. - Aug. 28, 2009)
Posted on August 28, 2009I like a fight as much as the next person. Really I do. But I'm not sure there's much there here.This is a case where the district court denied class certification in a "deceptive marketing" case (here, involving annuities to seniors). Once I read that, I thought: This thing's gonna get affirmed...
U.S. v. Gallenardo (9th Cir. - Aug. 28, 2009)
Posted on August 28, 2009You think your husband may be cheating on you. You're thinking about looking through his briefcase to see if you can find any signs of infidelity.Do you really want to know? What if what you find instead are pictures of a naked sixteen year old boy in the basement of your home?
Airlines Reporting Corp. v. Renda (Cal. Ct. App. - Aug. 27, 2009)
Posted on August 27, 2009For what it's worth, I think that Justice McIntyre is right in this case. When a plaintiff gets a judgment in another state by default, and thereafter registers this judgment in California, the defendant can assert the absence of personal jurisdiction in the rendering state at any time...
People v. Moberly (Cal. Ct. App. - Aug. 19, 2009)
Posted on August 27, 2009It seems stupid in retrospect, of course. But I'd have also said it's not very wise at the time. So let me reiterate the message I learned from this case.Yes, he's your 59-year old father, and he presumably loves you. But you two have just left a somewhat emotional therapy session, and you've got four children of your own you need to think about...
U.S. v. Comprehensive Drug Testing (9th Cir. - Aug. 26, 2009)
Posted on August 26, 2009Oh my God. This is such a freakishly good opinion.Okay, okay. Maybe I should have high expectations. It's an en banc opinion, so you know it's going to get scrutiny. It's about the BALCO case, so it's going to get press coverage. Finally, it's written by Chief Judge Kozinski -- and on a topic (electronic privacy) in which he's keenly interested -- so his normally wonderful writing is presumably going to be even better...
People v. Flores (Cal. Ct. App. - Aug. 19, 2009)
Posted on August 26, 2009Here's a tolerable law review topic. One which I'll illustrate with the following hypothetical, which is an extreme application of the principle:In 1993, the rules in murder cases allow introduction of X, Y and Z into evidence to prove an offense. In 1994, Flores allegedly commits a murder and flees to Mexico...
In Re A.I. (Cal. Ct. App. - Aug. 25, 2009)
Posted on August 25, 2009Sometimes concepts like "fairness" and "equity" get lost in the shuffle. Not here.Defendant (a juvenile) files a motion to suppress based on an illegal search. Since most of the prosecution's witnesses on this motion are the same on this motion and at trial, defendant agrees not to make them come back a second time...
People v. Dungo (Cal. Ct. App. - Aug. 24, 2009)
Posted on August 25, 2009From the outset of the opinion, it's not looking good for the defendant. Justice Blease begins with:"Defendant Reynaldo Santos Dungo admitted choking his girlfriend Lucinda Correia Pina to death, but claimed he did so only after he was provoked to the point of losing control, and thus, was guilty of at most voluntary manslaughter...
U.S. v. Gonzalez (9th Cir. - Aug. 24, 2009)
Posted on August 24, 2009Headline of the Day: "Ninth Circuit Concludes That Police Search Was Proper And Hence Evidence Was Lawfully Admitted, But Supreme Court Grants Certiorari, Vacates and Remands, At Which Point Ninth Circuit Is Forced To Reverse."Or, more concisely, "Man Bites Dog...
Humanitarian Law Project v. U.S. Treasury Dep't (9th Cir. - Aug. 24, 2009)
Posted on August 24, 2009The majority opinion describes the issue presented with the following opening line: "We are asked to invalidate the President?s authority to designate terrorist organizations when there is an extraordinary threat to national security . . . ." At which point you can pretty much figure out where the rest of this one's going...
Benyamin v. Holder (9th Cir. - Aug. 24, 2009)
Posted on August 24, 2009Few things in life are certain. Death. Taxes. Stuff like that.But let me add another item to the list. I'm exceedingly confident that if you're the BIA, and if you draw Judge McKeown as part of your panel on appeal, she isn't going to be all that pleased when you deny asylum on the ground that the child's threatened female genital mulilation "isn't really all that bad...
U.S. v. Brandau (9th Cir. - Aug. 21, 2009)
Posted on August 21, 2009The best way to reflect what an opinion says is often to use its own words. But on occasion, the message that one should receive from an opinion is nowhere expressed therein. That's where I can help.Take this opinion. On its face, it's a simple remand order...
U.S. v. Saavedra-Velasquez (9th Cir. - Aug. 21, 2009)
Posted on August 21, 2009I can't say it any better than Judge Reinhardt, who authors the opinion:"As an ?attempt? in the state of California requires only ?slight acts in furtherance of the [criminal] design,? People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) (emphasis added), one would reasonably expect that the California definition was categorically broader than the definition at common law, which requires a ?substantial step towards committing the crime,? United States v...
In Re Johnson (Cal. Ct. App. - Aug. 4, 2009)
Posted on August 20, 2009So you want to be a justice on the Court of Appeal (or a law clerk there), eh? The excitement. The novelty. The power. The duty to personally review articles in Men's Health about how to give women a really good orgasm to see whether a prisoner can be properly written up for having them...
Rodriguez v. Hayes (9th Cir. - Aug. 20, 2009)
Posted on August 20, 2009In a case brought by the ACLU on behalf of aliens detained for more than six months without a bond hearing while engaged in immigration proceedings, when the plaintiff files a motion for class certification -- and the defendant opposes it -- is it really too much to ask the district court to say something about the merits of that motion beyond a conclusory two-sentence disposition? You know: Factual findings, legal analysis, etc...
U.S. v. Harrison (9th Cir. - Aug. 19, 2009)
Posted on August 19, 2009I wish all opinions were like this.The majority opinion, written by Chief Judge Kozinski, is concise, witty and fun. It also contains a tone that seems exactly right to me.Here's how the majority opinion describes the facts:"This is a tale of two Rex Harrisons...
U.S. v. Hector (9th Cir. - Aug. 18, 2009)
Posted on August 19, 2009I must admit I'm surprised.Defendant gets convicted of two counts at trial: (1) receipt, and (2) possession of child pornography. The Ninth Circuit subsequently holds that you can't be convicted of both. So which conviction stands, and who decides? (This matters a ton since receipt has a five-year mandatory minimum but possession doesn't...
U.S. v. Alba-Flores (9th Cir. - Aug. 18, 2009)
Posted on August 18, 2009Alba-Flores drives eight pounds of meth into San Ysidro and is caught. He's facing a ten-year mandatory minimum, but he strikes a deal with the government. Everyone agrees that he'll plead guilty and provide all the information he can about his offense and his confederates, and in return the government will recommend application of the safety valve so that Alba-Flores can potentially get below the ten years...
People v. Hochanadel (Cal. Ct. App. - Aug. 18, 2009)
Posted on August 18, 2009A mixed bag (pardon the pun) today for pot dispensaries in California. On the one hand, the Court of Appeal uphold the dispensary provisions of the Medical Marijuana Program Act against various challenges -- a result that's huge for storefront operations...
U.S. v. Thongsy (9th Cir. - Aug. 17, 2009)
Posted on August 17, 2009There are limits to where experience can take you. For example, I've never slept in a tent with two other guys guarding an 160-acre marijuana field in southern Oregon with 8,918 marijuana plants. Or at least I'm not going to admit that I have. Nor have I, while sleeping in such a tent, had a ...
Fashion Valley Mall v. County of San Diego (Cal. Ct. App. - Aug. 17, 2009)
Posted on August 17, 2009This one might be interesting only to people who live in San Diego and who shop at the Fashion Valley Mall. But since that's an appreciable fraction of my friends and neighbors, I'll mention it.Otherwise, it's a boring, fact-specific tax case about whether a particular transaction resulted in the transfer of 50% versus 100% of the mall (and hence changed its tax basis)...
Ransom v. MBNA Bank (9th Cir. - Aug. 14, 2009)
Posted on August 14, 2009When you file for bankruptcy under Chapter 13, you get to deduct from your projected disposable income the "ownership costs" of a vehicle; e.g., lease or loan payments. But do those costs also include the costs of owning a vehicle you own free and clear?This is an issue that's beguiled courts for several years, and on which the various circuits are intractably split...
People v. Neely (Cal. Ct. App. - Aug. 13, 2009)
Posted on August 13, 2009Comparing cross-jurisdictional debates is sometimes enlightening. For example, for all of the high-profile commentary and precedent about the wisdom and validity of the federal sentencing guidelines, far too often overlooked is what happens in California...
People v. Martinez (Cal. Supreme Court - Aug. 13, 2009)
Posted on August 13, 2009Thinking about hiring a babysitter who lets her drug-addled boyfriend -- who carries a buck knife on his hip and who's previously drawn a picture for your ten-year old daughter of a cross dripping with blood -- visit her while she's babysitting your children?Think again.
Flores v. Horne (9th Cir. - Aug. 13, 2009)
Posted on August 13, 2009This is surely amongst the shortest published dispositions of the Ninth Circuit recently, which states in its entirety: "We remand this case to the District Court to comply with the Supreme Court?s decision in Horne v. Flores, 129 S. Ct. 2579, 2607 (2009)...
People v. Peyton (Cal. Ct. App. - Aug. 10, 2009)
Posted on August 12, 2009Okay, so I clearly was not at the trial. But just based upon reading the Court of Appeal's opinion, are you really sure the defendant's in fact guilty? I mean, like, positive of it, as opposed to just willing to believe it? Positive enough to sentence him to 66 years in prison without any apparent criminal history whatsoever?The following is admittedly irrational and wrong of me...
People v. Moore (Cal. Ct. App. - Aug. 11, 2009)
Posted on August 11, 2009Why did it take almost four full years after the discovery of the fraud to file criminal charges? Moreover, why does someone who steals $44,000+ from the LA Dep't of Public Social Services get probation when someone who steals a slice of pizza may get 25 to life?Doesn't make sense to me.
U.S. v. Monghur (9th Cir. - Aug. 11, 2009)
Posted on August 11, 2009Judge Tallman finds -- in a quite well-written opinion -- that there's a qualitative difference between (1) forthrightly admitting to the police that you have cocaine in a closed container, which suffices to waive your Fourth Amendment privacy expectations, and (2) using secret code words in a jailhouse telephone call that you know is monitored in the hope that your confederate can dispose of some evidence, which does not...
People v. Flores (Cal. Ct. App. - Aug. 11, 2009)
Posted on August 11, 2009Speaking of sentences, what do you think the appropriate sentence is for spitting on a prison guard?How about five years?Too long? Too short?
Gilman v. Dalby (Cal. Ct. App. - Aug. 10, 2009)
Posted on August 10, 2009Here's a case that's important to any attorney with a personal injury practice. It's also one that I think does an outstanding job of analyzing and resolving the competing public policy considerations at issue.The simple question is whether an attorney or medical lien has priority when both exist...
Richter v. Hickman (9th Cir. - Aug. 10, 2009)
Posted on August 10, 2009It's overstated to say that who's drawn for the en banc panel invariably matters. It's not too much, however, to say that it's often very important what the wheel brings. Here's a good example.It's an ineffective assistance of counsel habeas case that gets dismissed by the district court and, back in April of 2008, is unanimously affirmed by the panel, which consists of Judges Beezer, Trott and Randy Smith...
People v. Perez (Cal. Ct. App. - Aug. 4, 2009)
Posted on August 06, 2009Here's a classic case of an appeal to which I'd have stipulated error.Alejandro Perez forcibly took a $29 pair of pants from someone else (the victim wasn't wearing them; he had just bought them). He's convicted of second degree robbery. Fair enough...
In Re FairWageLaw (Cal. Ct. App. - Aug. 4, 2009)
Posted on August 06, 2009Want to see an ugly law firm breakup, in which two California lawyers -- David J. Fuller and Henry Schrenker -- voted to dissolve the firm after the third (John Heurlin) was suspended from the practice of law for two years? Here you go.Heurlin ends up prevailing on appeal; not on the merits, but he does obtain a remand...
Milner v. Dept. of Navy (9th Cir. - Aug. 5, 2009)
Posted on August 05, 2009Did I wake up this morning and accidentally travel back in time?I vaguely recall that the Ninth Circuit used to (and perhaps still does) issue "summaries" -- sort of like the syllabi issued by the Supreme Court -- as part of the paper slip opinions. But I don't recall seeing one of these for a least a decade or so, or at least not on the electronic (as opposed to paper) versions of the opinions...
People v. Haddad (Cal. Ct. App. - Aug. 4, 2009)
Posted on August 05, 2009The failure to appear for a required drug test is a drug-related offense. Testing dirty in a required drug test is a drug-related offense. But showing up and trying to pass a drug test by using someone else's pee is not a drug-related offense. So sayeth the Court of Appeal (with Justice Mosk dissenting)...
U.S. v. Fraire (9th Cir. - Aug. 4, 2009)
Posted on August 04, 2009First there's the border exception, which allows suspicionless stops of everyone who's anywhere within hundreds of miles of the border (or even beyond). Then there's the DUI exception, which allows everyone to be stopped at random checkpoints. Lest that be enough, now there's the hunter exception as well...
Hernandez v. Hillsides, Inc. (Cal. Supreme Ct. - Aug. 3, 2009)
Posted on August 04, 2009After you read this one, ask yourself whether your employer could permissibly -- or should be allowed to -- secretly videotape you in your office. What about in a lunch or break room, or a hallway, or a conference room? If someone's been watching porn or stealing pens, would that be enough to justify secret surveillance of everyone in the office?Sure, we know they can't tape you on the crapper...
Bressi v. Ford (9th Cir. - Aug. 4, 2009)
Posted on August 04, 2009I talked earlier today about the Ninth Circuit's new "hunter exception" that permits suspicionless seizures. Let me add one more as well, again from the same day.Today we also learn of the "Find Out If You're An Indian" exception; again, at least in the Ninth Circuit Pursuant to which tribal officials may permissibly stop you -- even on state roads -- in order to ascertain whether you're an Indian...
U.S. v. Berger (9th Cir. - July 31, 2009)
Posted on August 03, 2009Feeling pressure to get married from your significant other? Don't say "It's not you; it's me." That never works.Try something more creative. Something like: "Baby, I love you, and I'd totally want to marry you if we lived in any other state than California...
People v. Thorn (Cal. Ct. App. - July 31, 2009)
Posted on August 03, 2009I've always found the breadth of California's definition of "burglary" problematic. At common law, it used to be that burglary was the breaking and entering of a dwelling place at nighttime. Nowadays, however, it seems like going anywhere, at any time, counts as burglary as long as you're planning on performing mischief therein...
People v. Black (Cal. Ct. App. - July 31, 2009)
Posted on July 31, 2009Let's see what you think.Iris Black got someone else's bank account information and used it to make six purchases that total $377.99. She admitted the offense when questioned by police and pled guilty. She didn't really have any significant criminal history, so back in 2005, she's sentenced to 90 days in jail and three years of probation...
Daghlian v. DeVry Univ. (9th Cir. - July 31, 2009)
Posted on July 31, 2009Sometimes, delay is really, really, really good for the defendant.Like here.
People v. Burney (Cal. Supreme Ct. - July 30, 2009)
Posted on July 30, 2009You might want to read this opinion to see the scintillating discussion therein regarding whether "Asians" -- as opposed to "Chinese" or "Filipino" -- are a cognizable ethnic group for purposes of juror composition. Except that I'm being facetious, since the case merely raises the issue without deciding it...
People v. Wagner (Cal. Ct. App. - July 21, 2009)
Posted on July 30, 2009What the heck's going on in Riverside County?!We all know about the desperate backlog there. That's a given. I've also seen a plethora of dismissal cases come up to the Court of Appeal as a result. Same old same old. You've got a time limit. Bring 'em to trial or dismiss...
Desai v. Deutsche Bank Securities (9th Cir. - July 29, 2009)
Posted on July 29, 2009Today brings us a per curiam opinion with two concurrences, one by Judge O'Scannlain and one by Judge Graber. I'm not sure that anyone needs an additional (divergent) perspective, but I'll nonetheless offer one. Or perhaps even two.This is a fascinating case in which the defendants allegedly pumped up a stock through manipulation and in which Deutsche Bank allegedly made money through share-loaning...
Dupree v. Holman Prof. Counseling Centers (9th Cir. - July 29, 2009)
Posted on July 29, 2009Here's a difference between me and Judge Pregerson. Surely not the difference. But a difference.Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her...
Moore v. Czerniak (9th Cir. - July 28, 2009)
Posted on July 28, 2009The principal reason to read these opinions is because they contain a neat dialogue between Judge Reinhardt, on the one hand (with Judge Berzon concurring), and Judge Bybee in dissent. It's an ineffective assistance of counsel case, so it's quite fact-bound...
People v. Hirata (Cal. Ct. App. - July 29, 2009)
Posted on July 28, 2009How often do you see an opinion begin by quoting lyrics from an old jazz standard? Here you go.It's actually pretty relevant, too. Okay, maybe not relevant, but at least somewhat on point. Here's how the opinion begins:"September Song" laments, "Oh, it's a long, long while from May to December...
People v. Carrington (Cal. Supreme Court - July 27, 2009)
Posted on July 27, 2009You don't see that many women sentenced to death in California. Much less do you see this in a case involving multiple murders and no involvement with men.But here you go.Not someone you want to have as your former janitor. Nor probably someone you really want to meet in prison, either.
Drake v. Superior Court (Cal. Ct. App. - July 27, 2009)
Posted on July 27, 2009I like this one.Justice Duffy writes it in a fairly informal style. It's about timeliness and certificates of probable cause and the like in the context of a very ambiguous set of rules. Justice Duffy basically says: "I see how this is confusing to everyone...
Diaz v. LA County MTA (Cal. Ct. App. - July 23, 2009)
Posted on July 24, 2009I'm impressed.On Monday afternoon, Justice Perluss published this opinion, which involved the application of res ipsa loquitor to a common carrier (in particular, an accident between a car and an MTA bus).On Tuesday morning, I wrote this, in which I noted that while I thought the opinion might be correct as a precedential matter, there were still some doctrinal things about it that bugged me...
People v. Osborne (Cal. Ct. App. - July 14, 2009)
Posted on July 23, 2009What's the probability that sometime stealing a stereo out of a car is armed? Five percent? Twenty percent? Fifty percent? Go ahead and try to quantify it in your mind.Because it matters. Here, Osborne's working on his own car, but the police -- who don't initially know whose car it is -- wrongfully think he might be stealing the stereo...
Howard v. DeWitt (Cal. Ct. App. - July 15, 2009)
Posted on July 23, 2009I will not claim that I read every unpublished decision of the Court of Appeal, even those from down here in San Diego. 'Cause I don't.But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend...
Baker Manock & Jensen v. Superior Court (Cal. Ct. App. - July 21, 2009)
Posted on July 22, 2009It's a disqualification case involving a will contest. Nothing manifestly special.But am I reading it wrong? Is there bad blood between the Fifth Appellate District and Judge Kazanjian? Because Justice Vartabedian seems to go out of his way to slam the trial court...
People v. Field (Cal. Ct. App. - July 14, 2009)
Posted on July 22, 2009Don't molest children. Because even after you finish your sentence, and even after you have your balls surgically removed, we still won't let you out.
Diaz v. LA County MTA (Cal. Ct. App. - July 20, 2009)
Posted on July 21, 2009I'm of two minds about this case. Wait, no. Make that three.It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head...
U.S. v. Peyton (9th Cir. - July 21, 2009)
Posted on July 21, 2009I agree with Judge Canby.Last year, I agreed with Judge Wallace. Back then, in U.S. v. Giberson, the police had a warrant to search a home for evidence of evasion of child support and saw some evidence in plain view that pretty clearly indicated that the defendant was making false identifications from his computer...
Vasquez v. Kirkland (9th Cir. - July 20, 2009)
Posted on July 20, 2009Even if a key witness is deaf, cannot speak, and has not learned sign language, she can still properly testify at a criminal trial.Sure, a defendant's ability to cross-examine that witness is somewhat limited, since she's using somewhat ambiguous facial expressions, gestures, and lip movements to both understand and respond to questioning...
People v. Friend (Cal. Supreme Ct. - July 20, 2009)
Posted on July 20, 2009Sometimes it's totally easy to see why a defendant has been sentenced to death, and it's obvious how the murder there is different from other crimes in which the defendant is sentenced to life.Then there's this one.Maybe I'm jaded after reading all the death penalty cases over the past couple decades...
In Re Henry Russell Martin (S.D. - July 17, 2009)
Posted on July 18, 2009A warm welcome to the newest reader of the California Appellate Report: Henry Russell Martin, who entered the world a bouncing 10 pounds 2 ounces at 10:59 a.m. this morning.
People v. Hernandez (Cal. Ct. App. - July 10, 2009)
Posted on July 17, 2009I would have thought that everyone could agree that you can't let the jury see a uniformed and armed bailiff following the defendant in a criminal case wherever he goes -- at least if there's not an actual security risk. I'd have thought that everyone would recognize the prejudice inherent in having the bailiff follow around this one particular individual -- at his seat, on the witness stand, etc...
Thomas v. Mundell (9th Cir. - July 15, 2009)
Posted on July 16, 2009You don't get many "separate but equal" cases nowadays. So check this one out.It's a case that ultimately gets dismissed on Article III standing grounds, and for understandable reasons. But check out the facts. Basically, Maricopa County (Arizona) has three separate DUI courts; a "regular" (read: white) court, a "Spanish-speaking" DUI court, and a "Native American" DUI court...
Apana v. TIG Insurance Co. (9th Cir. - July 15, 2009)
Posted on July 16, 2009"Hey, Hawai'i Supreme Court. Some plumber went to a Costco in your Great State to unplug a drain, poured some strong chemicals down it, and accidentally got a customer sick from the fumes. The Mainland States are split about whether the 'pollution exclusion' in most insurance policies (including this one) covers only traditional environmental pollution or stuff like this, and your Awesome State hasn't yet answered this question...
BNSF Railway Co. v. O'Dea (9th Cir. - July 16, 2009)
Posted on July 16, 2009Let me give credit where credit is due. And then take some away.For a long time, Judge Fernandez definitely liked big words. His opinions were scattered with 'em, and it was a sort of trademark for him.Often (indeed, usually), I thought that the unnecessary use of ten-cent words detracted from -- rather than added to -- the clarity of Judge Fernandez's opinions...
U.S. v. Noster (9th Cir. - July 15, 2009)
Posted on July 15, 2009Rarely do I quote an opinion or disssent at substantial length. But sometimes the actual words are too good to leave to a mere link.For this reason, I give you the following dissent by Judge Shadur, who's sitting by designation from the Northern District of Illinois:"Vigilantism?whether manifested by group action such as that of a lynch mob or by individual rogue activity?is the enemy of orderly law enforcement...
U.S. v. Olander (9th Cir. - July 15, 2009)
Posted on July 15, 2009Congress is not especially bright, and the child pornography lobby is not especially strong.That's the only way I can explain the structure of 18 U.S.C. sect. 2252A, which is the main federal child pornography statute. To the detriment, sadly, of a coherent and rational statutory scheme...
Branner v. Regents (Cal. Ct. App. - July 14, 2009)
Posted on July 14, 2009There is much talk of judicial "empathy" nowadays. Rightly so. It's an important issue. Upon which reasonable views have been -- and continue to be -- expressed on both sides.But let me attempt to recharacterize the debate. At least in part. And to simultaneously reveal a little of what I think judging is (at least partially) about...
U.S. v. Overton (9th Cir. - July 14, 2009)
Posted on July 14, 2009The Ninth Circuit is P.C. with the best of 'em. Even Judge Tallman.Today Judge Tallman edits this opinion (published last month) to make a single change, which alters the original opinion so that the mother of the molestation victim is now described as the victim's "biological" mother rather than her "natural" mother...
Skokomish Indian Tribe v. Port Gamble S'Klallam Tribe (9th Cir. - July 13, 2009)
Posted on July 13, 2009Isn't one point -- indeed, a central point -- of having a judiciary to convince people not to engage in self-help remedies? Isn't the point of a judicial system to provide a means of peacefully settling what might otherwise provide fertile ground for continuing misconduct?Perhaps not...
People v. Sizemore (Cal. Ct. App. - July 9, 2009)
Posted on July 10, 2009Even movie stars can get incarcerated for drug offenses. Even in California. Even after Proposition 36.Just be enough of a head case and enough of a meth addict and in you'll eventually go.Just ask Tom Sizemore. For whom the California Court of Appeal said earlier today: "Affirmed".
Norwood v. Vance (9th Cir. - July 9, 2009)
Posted on July 10, 2009Chief Judge Kozinski is sometimes the swing vote in close civil liberties cases. So in this case, in which the other panel members are Judge Callahan and Thomas, it's not entirely surprising to discover that the party who wins Kozinski is the party who wins...
Lonberg v. City of Riverside (9th Cir. - June 26, 2009)
Posted on July 09, 2009Sometimes, even as an advocate, it make sense to play the strong, silent type.The classic example is when the tentative has come out in your favor. You stand up, let the other side say its piece, and when it's your turn, volunteer to speak if the judge wants, but otherwise shut up and win...
Melkonians v. Los Angeles County Civil Svc. Comm'n (Cal. Ct. App. - June 10, 2009)
Posted on July 08, 2009Here's a guy -- Ara Melkonians -- who I'm definitely glad is no longer with the L.A. Sheriff's Department. Read the whole thing, including but not limited to the line that says: "Melkonians had 14 administrative hearings in 10 years of service and nine of the allegations were sustained...
Vinole v. Countrywide Home Loans (9th Cir. - July 7, 2009)
Posted on July 08, 2009Don't assume you get to move for class certification on your own schedule. Smart defendants can move to deny class certification even before you move to certify.Litigation -- like many other games -- is often about strategy. Use it wisely.
People v. Ramon (Cal. Ct. App. - July 7, 2009)
Posted on July 07, 2009For a good portion of this opinion, based upon its tone and content, I thought that Justice Cornell was going to hold that the gang enhancement here was proper. Which was going to make me go ballistic.Basically, a guy who was in a gang stole a car, and a police officer testified at trial: "Well, if you steal a car, you're able to use that car to commit crimes on behalf of a gang if you feel like it, so yeah, I'd stay that stealing the car was in furtherance of gang activity...
Fontaine v. Superior Court (Cal. Ct. App. - July 7, 2009)
Posted on July 07, 2009You don't see too many venue cases in the Court of Appeal. But here's one.For good reason, too. Here's a case where the defendant (smartly) moves to change venue -- from Santa Clara to Orange County -- not only to get a better jury pool, but principally to make it a monster hassle for plaintiff and his lawyers...
Mevorah v. Wells Fargo (9th Cir. - July 9, 2009)
Posted on July 07, 2009It's apparently class action day today at the Ninth Circuit, as three of the four civil cases published today review class action complaints. And whatever one might think about the allegedly "liberal" Ninth, it's not a day that will make plaintiff's side class action lawyers happy...
U.S. v. Old Chief (9th Cir. - July 6, 2009)
Posted on July 06, 2009No, cases like this one don't advance a stereotype. Not at all.
People v. Rogers (Cal. Supreme Court - July 6, 2009)
Posted on July 06, 2009The police get a report of a person who's been missing for around a month. Something to investigate, of course, but not desperately urgent, which is why even though they receive the call at 8:00 a.m., they don't bother to investigate until later that afternoon...
Mission Bay Jet Sports LLC v. Columbo (9th Cir. - June 24, 2009)
Posted on July 02, 2009I have two things to say about this case. Both of which may principally be of interest to those readers down here in San Diego.First, did you realize that you're subject to admiralty jurisdiction when you're hanging out at Mission Bay? You apparently are...
In Re Complaint of Judicial Misconduct (3rd Cir. - July 2, 2009)
Posted on July 02, 2009Congratulations, Alex.It's a light admonishment from the Third Circuit, and that -- plus the love that you can virtually feel come off the page from the report -- is pretty much everything that Chief Judge Kozinski could hope for in the process. Yes, he left some stuff on his computer he shouldn't have, but he realizes that now, and has been punished for his (minor) transgressions more than enough by the publicity and reputational hit alone...
People v. Johndrow (Cal. Ct. App. - July 1, 2009)
Posted on July 01, 2009Rarely is there a consistent theme for the day. Much less one that spans both the state and federal appellate cases. But today may be an exception.Glenn Johndrow is on trial, and he wants to testify. He repeatedly and expressly says so, both to his lawyer and to the judge...
Bible v. Ryan (9th Cir. - July 1, 2009)
Posted on July 01, 2009Judge Gould writes a 22-page, single spaced opinion that can probably be summarized in a single -- telling -- paragraph. Here's my synopsis:"It's clear that Richard Lynn Bible killed a 9-year old girl for totally no reason. Given that fact, we all know that pretty much any judge or jury would vote to sentence him to death...
County of Butte v. Superior Court (Cal. Ct. App. - July 1, 2009)
Posted on July 01, 2009I've been thinking about this case since when it came out around lunchtime. And after much reflection, I've come to the reluctant conclusion that Justice Morrison's dissent is right.It's a great case on many levels. The premise of which starts with the following: "Dude, you can't make the pull up my weed...
Wilson v. San Luis Obispo County Dem. Central Comm. (Cal. Ct. App. - June 29, 2009)
Posted on June 30, 2009The United States is not, say, Iran, right? Or even Honduras.There's no way that someone could get elected to an office and then get booted out -- notwithstanding her victory in the election -- simply because other elected officials didn't like her. Right?Think again...
Chapman v. Pier I Imports (9th Cir. - June 29, 2009)
Posted on June 30, 2009This is why so many attorneys who file ADA claims in California use professional plaintiffs. Because when the plaintiff tells the truth, the case may well get bounced.So better to have a plaintiff who knows how the system works and what needs to be said -- essentially, the same stuff that was alleged in the complaint...
Beninanti v. Black Rock City LLC (Cal. Ct. App. - June 30, 2009)
Posted on June 30, 2009It's pretty freaking obvious that if you're at Burning Man and approach a flaming 60 foot wooden structure to throw some stuff into it of your own, you're potentially comparatively negligent. Totally.But what the Court of Appeal holds today is that recovery is barred in its entirety -- and as a matter of law, no less -- based upon the doctrine of primary assumption of the risk...
U.S. v. Sanchez (9th Cir. - June 23, 2009)
Posted on June 29, 2009Going back in time is difficult in the real world. But we do it in the judiciary all the time.For example, ever since the Supreme Court in Booker held that the sentencing guidelines were advisory, the Ninth Circuit has conducted what we call "limited Ameline" remands, in which the district court is basically asked whether -- for those cases that were on appeal when Booker was decided -- it would have imposed the same sentence had it known the guidelines were advisory...
In Re Lloyd Rucker (9th Cir. - June 26, 2009)
Posted on June 26, 2009Couldn't agree more. At least about the result.Lloyd Rucker committed widespread fraud, went to prison, and tried to avoid paying a multimillion civil judgment against him by making massive contributions to 401(k) plans well in excess of IRS limits (and then lying to everyone, including the IRS, about them)...
Charisma R. v. Kristina S. (Cal. Ct. App. - June 26, 2009)
Posted on June 26, 2009Even lesbian parents sometimes bag out on the relationship shortly after a kid is born. Making it even tougher than usual to figure out who the parents -- and what their respective rights -- really are.Interesting lineup of counsel as well. One member of the couple (the nonbiological parent) is represented by Squire Squre & Dempsey, presumably pro bono...
Ahmed v. Holder (9th Cir. - June 24, 2009)
Posted on June 25, 2009What?! One of the chefs in the kitchen of an Indian restaurant in Koreatown (Makkah Halal Tandori) was an illegal immigrant from Bangladesh?! I'm shocked. Stunned. Whodathunk?
U.S. v. Overton (9th Cir. - June 18, 2009)
Posted on June 25, 2009We (rightly) go out of our way to abbreviate the names of victims of sexual assault, particularly intrafamilial victims. As Judge Tallman does here.Given that fact, we should probably also be careful not to unnecessarily include in the opinion facts that make the identity of the victim crystal clear...
In Re K.P. (Cal. Ct. App. - June 22, 2009)
Posted on June 25, 2009Occasionally you need very few facts to figure out how a dependency petition is going to come out, even if it's contested. Like here."In May 2005, another dependency petition was filed alleging jurisdiction of J.P., K.P. and J.M. (collectively, the minors) under section 300, subdivisions (b), (c), and (g) (no material support), following domestic violence between the mother and the father leading to the mother?s arrest...
Warfield v. Bestgen (9th Cir. - June 24, 2009)
Posted on June 24, 2009So I obviously now know how much influence I have on the Ninth Circuit. Yesterday I tell the court to slow down -- to pace themselves -- and crank out so many opinions at once. They issued ten today. So, dutifully, they follow my counsel. How many published opinions today? Ten...
In Re Complaint of Judicial Misconduct (9th Cir. - June 24, 2009)
Posted on June 24, 2009The thing about people like Chief Judge Kozinski is that they're so smart, and subtle, that it's sometimes hard to figure out if they're being deliberately sly or merely stumbling into saying something that may have a broader ramifications than they intended...
U.S. v. Lopez-Velasquez (9th Cir. - June 23, 2009)
Posted on June 23, 2009Whoa. Pace yourself.The Ninth Circuit's publications today are in the double digits. Spread 'em out, my friends. Too much work for our hero.I can, however, summarize -- abeit at a superficial level -- pretty much all of the opinions issued today. The majority of them are criminal cases...
Bakersfield Energy Partners v. CIR (9th Cir. - June 17, 2009)
Posted on June 23, 2009Next time you wonder whether the rich are able to come up with fancy ways to get out of paying taxes, check this one out.Good to know we're all paying our fair share. [Insert dripping sarcasm here.]
People v. Medina (Cal. Supreme Ct. - June 22, 2009)
Posted on June 22, 2009Sometimes you can get the most accurate sense of a judge -- or anyone, for that matter -- by his or her reaction to close cases. For example, take this case. Someone says "Where you from?" and a fistfight starts between three gang members on one side and a sole gang member on the other...
Lahr v. NTSB (9th Cir. - June 22, 2009)
Posted on June 22, 2009I'm not a conspiracy nut. In the slightest. True conspiracies are freakishly hard to keep secret, and generally the alleged motivations for them aren't sufficiently strong to justify the potential downside.I mention this only because while I don't believe there's a grand conspiracy, as I was reading this case earlier today, I was nonetheless struck by the underlying facts...
Bisno v. Douglas Emmett Realty Fund (Cal. Ct. App. - June 19, 2009)
Posted on June 19, 2009This is a tough rule to apply in practice, if only because after litigating a case for a long while, lawyers often lose their objectivity and come to believe their own arguments. (I'm guilty of this sin as well, though I attempt to realize and compensate for it...
In Re Warren (9th Cir. - June 18, 2009)
Posted on June 18, 2009Unless you've got an abnormally high interest in the automatic disclosure and dismissal rules in bankruptcy cases, you can largely skip this one from the Ninth Circuit today.Except for footnote 1. Judge T.G. Nelson discusses therein the use of nunc pro tunc orders, and where and when they're appropriate...
United Rentals Northwest v. Snider Lumber Products (Cal. Ct. App. - June 18, 2009)
Posted on June 18, 2009There's only so far that "plain language" and the alleged "unambiguity" of a statute can take you. At least in my view.Take this case, for example. At least from reading Justice Wiseman's opinion, it seems one of the easiest case in the universe. Defendants own a sawmill upon which 10 lumber drying kilns -- essentially, buildings 68 feet long, 14 feet wide, and 20 feet tall where lumber was heated and dried -- are located...
Vernoff v. Astrue (9th Cir. - June 17, 2009)
Posted on June 17, 2009I'm the parent of three children -- and, next month, if all things go as planned, a fourth -- and there's no doubt I'm the father of each of them.But particularly in the modern era, the answer to the seemingly simple question "Who's your daddy?" is not always so facile...
People v. Dillon (Cal. Ct. App. - June 16, 2009)
Posted on June 17, 2009Check me on this one. Annette B. is a victim of sexual assault in San Francisco on New Year's Eve of 2005. She's recently done a little coke, and has been drinking. She gets sexually assaulted by a stranger in the street, and his defense is consent...
Paterson v. City of Los Angeles (Cal. Ct. App. - June 16, 2009)
Posted on June 16, 2009As I read this opinion, which (on the merits) seems right to me, I was hoping that someone would say exactly what Justice Mosk says in his brief (two-paragraph) concurrence.An officer with the LAPD calls in sick. A lieutenant with the LAPD believes he's faking it, and abusing sick leave (apparently, you've actually got to be sick in order to get the leave), so instructs a sergeant to check it out by going to the officer's home...
Holley v. Yarborough (9th Cir. - June 16, 2009)
Posted on June 16, 2009When Judges Kleinfeld, Nelson and Milan Smith agree that the criminal defendant deserves a writ (in an AEDPA case, no less), you know it's got to be a fairly strong claim. As indeed it is.Two minor points. First, I thought that footnote two was extremely interesting (as well as long), and I might have put that one in the text...
People v. Avila & Dykes (Cal. Supreme Ct. - June 15, 2009)
Posted on June 15, 2009Not that there's ever a good day to be on death row in California, but for at least two people, today's an even worse day than normal.Not that this is massively surprising. But you do have the California Surpeme Court unanimously affirming two different death penalty cases today...
People v. Meredith (Cal. Ct. App. - June 15, 2009)
Posted on June 15, 2009Everyone admits it was wrong for the trial court to start the criminal jury trial with the defendant still wearing his prison orange jumpsuit. But Justice Hull seems right that given the evidence at trial, there's no real doubt that the defendant was guilty, or at least that the whole jumpsuit thing didn't matter...
City of Las Vegas v. FAA (9th Cir. - June 12, 2009)
Posted on June 12, 2009What's a FONSI/ROD look like? And, no, the proper response is not "Ask Pinky Tuscadero".Here's the true answer. Hint: You can now get into and out of town a tiny bit faster -- always important, particularly in Las Vegas -- and the probability that you have to circle the city is a bit lower.
Gilbert St. Developers v. La Quinta Homes (Cal. Ct. App. - June11, 2009)
Posted on June 12, 2009There's no place better than the 4/3 to find interesting writing styles. By which I mean, of course, Division Three of the Fourth Appellate District. Or, to the rest of the nation, "The O.C."Among those on the 4/3 who adds flair to the traditional content of judicial opinions is Justice Sills...
Alex O. v. Superior Court (Cal. Ct. App. - June 10, 2009)
Posted on June 11, 2009I'm glad the Justice Benke decided to publish this opinion. It's important. In large part because I agree with her that it's unconstitutional for a court to tell a U.S. citizen who lives in Mexico that he can't come to the U.S. except to attend school, work, or visit his family...
San Diego Police Officer's Ass'n v. San Diego CERES (9th Cir. - June 10, 2009)
Posted on June 10, 2009Ah, San Diego. The sun. The beaches. The luxury. The disastrous pension situation.The case out of the Ninth Circuit this morning is but a tiny sliver of the legal disputes generated by the latter. But it's an interesting one, if only because few people are aware that parts of the pension dispute involve -- of all things -- claim preclusion and the Contracts Clause...
Enrique M. v. Angelina V. (Cal. Ct. App. - June 10, 2009)
Posted on June 10, 2009I'm not at all saying that Justice Aaron -- or the trial court, for that matter -- gets this one wrong. Lots of the dispute is fact-specific about what's best for this particular kid; what his last name should be, where he should go to middle school, etc...
People v. Ugalino (Cal. Ct. App. - June 9, 2009)
Posted on June 09, 2009There are certain advantages that accrue from attending law school. For example, if you've just committed first degree robbery, and have been caught by the police, you're unlikely to tell them -- as Del Ugalino did here -- that "you can't arrest me for ripping off a drug dealer...
Farb v. Superior Court (Cal. Ct. App. - June 2, 2009)
Posted on June 09, 2009You and your wife hired a surrogate back in '93 . She got pregnant with twins in January of '94, but shortly thereafter, you not only decided that you didn't want children with your wife, but you didn't want her at all. You left her, and your divorce was final in May of '94...
People v. Haller (Cal. Ct. App. - June 9, 2009)
Posted on June 09, 2009It's one thing to say that a sentence of 78 years to life (for which the defendant will be eligible for parole, at the earliest, when he's 119) isn't "cruel and unusual" for a defendant who left threatening messages for his ex-wife and then drunkenly showed up at her house with a knife, only to be promptly shot in the groin by her shotgun-toting husband...
Doppes v. Bentley Motors, Inc. (Cal. Ct. App. - June 8, 2009)
Posted on June 08, 2009Oh, the trials and tribulations of wealthy residents of Orange County. For example, that my new Bentley simply does not smell correctly. I'll take a quarter million for that, thank you very much.Admittedly, if I dropped a boatload of cash on a Bentley, I'd want it to smell pretty darn good as well...
Unlimited Adjusting Group v. Wells Fargo Bank (Cal. Ct. App. - June 4, 2009)
Posted on June 05, 2009I'll admit it in advance. I'm a moron.I keep reading and rereading this case to try to understand it. But I just can't get my head around it. Justice Mosk does a wonderful job writing a seventeen-page "UCC For Dummies" primer precisely for people like me...
CFIT v. VeriSign (9th Cir. - June 5, 2009)
Posted on June 05, 2009They say that IP's on the decline and that antitrust is the new hot field (again).Here's some proof. Alongside a neat little overlap.
Nelson v. NASA (9th Cir. - June 4, 2009)
Posted on June 04, 2009Most of the opinions from the Ninth Circuit get published at 10:00 a.m. But sometimes, particularly with en banc denials (and associated opinions), they dribble in thereafter. Which happens today. To the tune of five different missives in Nelson v...
People v. Gerold (Cal. Ct. App. - June 3, 2009)
Posted on June 04, 2009"Not Guilty By Reason of Insanity" does not mean "Innocent". At least for purposes of expunging your records.
Catholic League v. City and County of San Francisco (9th Cir. - June 3, 2009)
Posted on June 03, 2009This is a long opinion, and entails an elaborate discussion of the Establishment Clause as applied to a fairly unique set of facts. If you're interested in conflicts between Church and State, reading the whole thing is time well spent.That said, I can summarize the dozens of pages of single-spaced text fairly concisely...
People v. Ebaniz (Cal. Ct. App. - June 3, 2009)
Posted on June 03, 2009Tyrone Ebaniz is a sixteen-year old charged with participating in the grisly group torture and murder of his best friend, seventeen-year old Eric Jones. At his first trial, he's convicted of a wide variety of charges -- including first degree murder -- and sentenced to 34 years to life...
Clem v. Lomeli (9th Cir. - June 2, 2009)
Posted on June 02, 2009We learned last month that you can't necessarily believe everything you read in the Rutter Group. Today, we learn that even when you're in the Ninth Circuit, you can't even rely upon the Ninth Circuit's own Model Civil Jury Instructions (here, No. 9.25)...
Chau v. Starbucks (Cal. Ct. App. - June 2, 2009)
Posted on June 02, 2009When you leave money in the tip jar at Starbucks, to whom are you leaving it? And who may permissibly recieve it; in particular, can the company command that the store manager ("shift supervisor") gets a cut?The general rule in California is that the company can't take a cut of tips from its employees and give the dough to their agent (e...
In Re H.H. (Cal. Ct. App. - June 1, 2009)
Posted on June 01, 2009Just a little hint: When you're riding a bike, minding your own business, and the police stop you because you don't have the proper lighting equipment thereupon (and, yeah, I'm sure that was their real concern), the first words out of your mouth should not be to proclaim: "I'm not on probation...
People v. Davis (Cal. Supreme Court - June 1, 2009)
Posted on June 01, 2009The California Supreme Court issued its opinion today in the case against Richard Davis, who was the person who kidnapped and killed 12-year old Polly Klass. It's a case familiar to anyone who was cognizant of current events in the early 90s -- particularly in California, and especially parents...
People v. McL***** (Cal. Ct. App. - May 29, 2009)
Posted on May 29, 2009Here's a case that, in my view, is clearly and unambiguously correct. Both as to the law as well as to the equities.Defendant -- I'll keep his name out, for reasons I'll explain later (though you can get it right from the caption) -- gets convicted of a drug offense back in the early 1990s and is sentenced to probation...
In Re Silver State Helicopters LLC (9th Cir. - May 28, 2009)
Posted on May 29, 2009Doesn't everyone wish they had a job when, on occasion, you could say to someone: "Dude. I'm important. You may think you're question's important. But it's not. So stop bothering me."That's another occasional benefit of being on the Ninth Circuit.
California Attorneys v. Schwarzenegger (Cal. Ct. App. - May 28, 2009)
Posted on May 28, 2009I assume that the plaintiffs in this case are right, and that deputy attorneys general in California are significantly underpaid compared to other public service attorneys in California. But I am at the same time completely certain that Justice Raye is also correct that the Legislature, rather than the judiciary, is the proper place in which to seek relief for this unfortunate circumstance...
People v. Gutierrez (Cal. Ct. App. - May 28, 2009)
Posted on May 28, 2009As the (fictional) judge said to Matt Damon in Good Will Hunting: "You hit a cop. You go in."Admittedly, Matt Damon didn't go in for long; instead, he got the deal that led to the story. But in the real world, it's a different story. Sure, in this case, it's a correctional officer rather than a police officer that gets hit...
Yamaha Motor Co. v. Superior Court (Cal. Ct. App. - May 26, 2009)
Posted on May 27, 2009I'm definitely going to talk about this one.First, on a pedantic level, I must say it's a bit frustrating to have an opinion (like this one) dated as published yesterday but put on the court's web site only today. Not a biggie, but still.Second, this is yet another opinion with some great conversational lingo...
Jazayeri v. Mao (Cal. Ct. App. - May 27, 2009)
Posted on May 27, 2009Dead chickens. Hearsay. Authentication. Fraud. Admissibility disputes. And a judge (Judge Gutman, up in LA) who's apparently an evidentiary stickler, and wrongly so.This case has got 'em all.
Knappenberger v. City of Phoenix (9th Cir. - May 26, 2009)
Posted on May 26, 2009I'm in the midst of reading the California's 170-plus page opinion in the gay marriage cases. Which was not so easy to even obtain given the crush on the court's server. I'll all say for now (and perhaps for a while) is that I have never seen Chief Justice George rely so heavily on italics...
People v. Hairston (Cal. Ct. App. - May 26, 2009)
Posted on May 26, 2009A car pulls into the parking lot of your apartment complex with rap music blaring, and with the driver rapping and singing along. Three people exit the car. Do you really think it's a good idea, in such a context, to tell your friend -- out loud and within the hearing range of these people -- that the driver's singing sounded like a song that Elmo (from Sesame Street) had rapped? Will this really be the start of something good?! Especially when, in response to the driver's "question" as to whether you're trying to be funny, you make a point of calling him "boy"? Not good...
People v. Chaffin (Cal. Ct. App. - May 14, 2009)
Posted on May 22, 2009I'ts a snoozer of a Friday as we head into the Memorial Day weekend. Nothing special in the Ninth Circuit or in the California Court of Appeal today, which mostly concerned themselves with making tiny amendments to previous decisions.So I thought I'd just float this one out for your consideration:Mike gets into a verbal altercation with his baby mama that escalates into a physical confrontation after she slaps him...
In Re Estate of Beckel (Cal. Ct. App. - May 21, 2009)
Posted on May 21, 2009Here's a good question for the California Bar Exam. One which, I might add, the lower court got wrong. It's a Trusts & Estates question -- a class I never took (anywhere) -- but I nonetheless was able to intuit the answer. See if you can do the same...
People v. Cadogan (Cal. Ct. App. - May 20, 2009)
Posted on May 21, 2009So I'm reading this case, and my eyes flitter to the line that contains the name of counsel for the defendant. I notice that it's another case where the appellate counsel is appointed by the court -- nothing unusual there -- and I read the name: Marcia R...
U.S. v. Heron-Salinas (9th Cir. - May 20, 2009)
Posted on May 20, 2009It's a big San Diego Day today. Only two published opinions total from the Ninth Circuit and California Court of Appeal thus far, both of which come from America's Finest City. A locale, I might add, at which it's currently sunny and 73 degrees. Per se usual...
People v. Burgener (Cal. Supreme Ct. - May 7, 2009)
Posted on May 19, 2009Tell me it makes sense to keep pushing this one.This is already the third time the case has been back up to the California Supreme Court, not to mention the time in the California Court of Appeal. Justice Baxters says this appeal "may not be the last," but I can add to that: It definitely won't be the last...
U.S. v. Maness (9th Cir. - May 19, 2009)
Posted on May 19, 2009You reside -- and are hanging out -- in Wasilla, Alaska. There are less than 6000 of you in the town. It's June 2001, so your mayor is Sarah Palin: someone as yet largely unknown to the rest of the universe. Perhaps you voted for her, perhaps you didn't...
Manhattan Loft LLC v. Mercury Liquors, Inc. (Cal. Ct. App. - May 18, 2009)
Posted on May 18, 2009Sometimes cooling off makes a difference.Take, for example, today's modification. Just reading it, you wouldn't think it was anything special, much less worth noting. It just changed a couple of minor lines of an opinion by Justice Ashmann-Gerst, after all...
Byrd v. Maricopa County Sheriff's Dep't (9th Cir. - May 18, 2009)
Posted on May 18, 2009Dear Penthouse:I never thought those stories were true, but then I met Kathy. We met when she was a young trainee at the Maricopa County Sheriff's Office Training Academy, and I was in a minimum security jail for some low-level charges. They called a ton of us out to check us for contraband, told us to strip down to our prison-provided boxer shorts, and assigned trainees to search us...
Mazda Motors v. M/V Cougar Ace (9th Cir. - May 8, 2009)
Posted on May 15, 2009This is how Judge Fisher begins this opinion: "This in rem admiralty action requires us to decide whether the defendant ocean vessel may invoke a forum selection clause in the bills of lading governing ocean carriage on that vessel."Oooh! Sexy!You had me at "in rem admiralty," Ray...
United States v. Iribe (9th Cir. - May 6, 2009)
Posted on May 14, 2009Especially for those of us down here in San Diego: Next time your friend asks you to have a fun time with 'em down in TJ, make sure they're really a friend.
Balzaga v. Fox News Network (Cal. Ct. App. - May 14, 2009)
Posted on May 14, 2009On the one side we have the plaintiffs, who are several immigrant day laborers. On the other side we have the defendant, the Fox News Network. Lots of people are going to make up their mind right there -- without any of the facts at all -- about who should win...
Doody v. Schiro (9th Cir. - May 12, 2009)
Posted on May 13, 2009This is what I said.See why?Not looking good for him.
Catz v. Chalker (9th Cir. - May 13, 2009)
Posted on May 13, 2009Here's a nice little opinion. Short. Clear. Good.Admittedly, it's about a totally hypertechnical procedural matter: Whether a Rule 60(a) motion filed within 10 days of the judgment tolls the time for filing an appeal. A question, I might add, which has a simple answer, which you can fairly rapidly discern from FRAP 4, which says: "If a party timely files in the district court any of the following motions under the Federal Rules of Civil Procedure, the ime to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion...
People v. Zambia (Cal. Ct. App. - May 12, 2009)
Posted on May 12, 2009I agree with Justice Kriegler that Jomo Zambia is guilty of pandering. It seems like a pretty broad statute, and the evidence shows that he was indeed trying to become Officer Cruz's pimp.Let me ask a somewhat related question. Imagine I make the following statement to my readers: "Being a prostitute isn't such a bad thing...
Keener v. Jen-Weld (Cal. Supreme Ct. - May 7, 2009)
Posted on May 12, 2009It's not always so easy to count to 9.
Ileto v. Glock (9th Cir. - May 11, 2009)
Posted on May 11, 2009It's Monday. Let's play a game.Go to this opinion. It's about the liability of firearms manufacturers, and is interesting (and important) on the merits. But don't read it yet. And cover up the caption when you boot it up. Turn directly instead to pages 5578-80 of the slip opinion, which is where the majority responds to the dissent...
Cooper v. Brown (9th Cir. - May 11, 2009)
Posted on May 11, 2009I know, I know.It's 113 pages. Single-spaced. Plus, that figure doesn't even contain the majority opinion, since we're talking about a dissent from the denial of rehearing en banc.Still. If you're going to read one 100+ page dissent from the Ninth Circuit this year, this should be the one...
People v. Mays (Cal. Ct. App. - May 8, 2009)
Posted on May 08, 2009What can we learn from today's opinions, heading into a warm and wonderful weekend?Here's something: Never believe the police.Yes, we know, as a matter of doctrine, the police are allowed to lie. To suspects, to witnesses, to anyone. It doesn't make statements involuntary...
Fries v. Rite-Aid Group (Cal. Ct. App. - April 22, 2009)
Posted on May 07, 2009Never assume something's true just because the Rutter Group says so.
Doe v. California Dep't of Justice (Cal. Ct. App. - May 7, 2009)
Posted on May 07, 2009You pled guilty (or are convicted) to lewd acts upon someone under 16 (or 14), so pursuant to Megan's Law, your name and picture is on California's sex offender website. Because the victim was a family member, you're eligible for probation, to which -- presumably for good reason -- you're sentenced and which you successfully complete...
Millender v. County of Los Angeles (9th Cir. - May 6, 2009)
Posted on May 06, 2009The real fight here is about qualified immunity. And every member of the panel -- Judges Callahan, Fernandez and Ikuta -- has his or her own take. The various opinions are definitely worth a read. And they're not even all that long.I just wanted to say two things...
321 Henderson Receivables v. Siotecho (Cal. Ct. App. - May 6, 2009)
Posted on May 06, 2009You've seen the ads on late-night television: "We want to take advantage of your misfortune and rip you off when we buy your structured settlement! Call us now: J.G. Wentworth."Okay, so they leave out the words between "to" and "we". Still, they want to buy your structured settlement...
People v. Henning (Cal. Ct. App. - April 29, 2009)
Posted on May 05, 2009Ten years for defrauding lots of vulnerable, disabled elderly people.Seems about right to me. And no, I'm not being sarcastic. I'm happy to have that guy peddle his wares in prison rather than on the streets.
Sentry Select Ins. Co. v. Fidelity & Guarantee Ins. Co. (Cal. Supreme Ct. - May 4, 2009)
Posted on May 04, 2009As I've occasionally mentioned (e.g., here and here), the Ninth Circuit has been on a certification tear recently. Which has a lot of things going for it. (Plus, they add yet another one to the list today.)But there are downsides. As today's decision from the California Supreme Court reflects...
U.S. v. Park Place Assocs. (9th Cir. - April 22, 2009)
Posted on May 04, 2009Did you know that the United States once (and recently, at that) owned and operated a casino in Los Angeles? It did.The resulting litigation has been a byzantine nightmare. The latest installment of which is this opinion by the Ninth Circuit.But fear not...
Bova v. City of Medford (9th Cir. - May 4, 2009)
Posted on May 04, 2009Too late now, sadly (since this just denies the petitions for rehearing and publishes the opinion). But I think I could have saved this one for you.Oregon law says that cities have to give their retirees health insurance, but the City of Medford doesn't, so plaintiffs -- who are currently employed by Medford -- sue...
In Re Boyajian (9th Cir. - May 1, 2009)
Posted on May 01, 2009Is it a new Ninth Circuit thing? Or is it Willie?Today brings something new -- or at least new to me -- in the list of counsel in the Ninth Circuit. In both of the published panel cases today, the opinion lists the name of the relevant law firms or legal organizations involved (but not the attorneys) in ALL CAPS...
Burn v. Neiman Marcus (Cal. Ct. App. - April 28, 2009)
Posted on April 30, 2009Why do people embezzle?Gambling debts? Drug problems?Sure. I've seen all the above.But here's a new one. Someone who embezzled -- to the tune of $1,000,000 -- and spent nearly all of it shopping at Neiman Marcus.I gotta say that's a new one to me.Mind you, I think I can one-up this...
In Re Prindle (Cal. Ct. App. - April 20, 2009)
Posted on April 30, 2009Guess what sort of opinion contains the following description of the underlying facts: "In May 2002, Darrel Prindle entered the home of Angela Prindle, his estranged wife. He shot and killed Angela. He also shot Angela's sister (Jessica Harris) and Jessica's daughter (Crystal Perkins)...
People v. Frazier (Cal. Ct. App. - April 29, 2009)
Posted on April 29, 2009Here's an interesting case for the hard-core animal liberation crowd.You get an extra several years in prison if you "personally" inflict great bodily injury on another person. It doesn't count if you direct someone else to do it; even if you tell your friend "Get him!," and the friend does, there's a California Supreme Court case on point that says the enhancement doesn't apply...
Mohamed v. Jeppsen Dataplan (9th Cir. - April 28, 2009)
Posted on April 28, 2009Sometimes you smile when the panel draw comes out.This is a torture case. Err, I mean, "extraordinary rendition." Oops, I mean, "enhanced interrogation techniques." Whatever. It's a bunch of people who had their testicles zapped, were beaten, deprived of sleep, etc...
County of Los Angeles v. Fairmont Speciality Group (Cal. Ct. App. - April 28, 2009)
Posted on April 28, 2009Are you from Honduras (as a couple of my friends are)? If so, I've got a great profession for you:Drug dealer.Why, you might ask? For the money, of course. But the big side benefit is that, apparently, Honduras won't extradite you. Which is good for drug dealers, but bad -- as this case reflects -- for bond companies...
Arizona v. Gant (U.S. Supreme Ct. - April 21, 2009)
Posted on April 27, 2009The usual rule I impose upon myself is to not write about contemporary Supreme Court cases. They get enough play and insight as it is, and I leave that stuff to my academic scholarship.But I'm going to depart -- abeit incredibly briefly -- from that guideline in this exceptional circumstance...
Iglesia Evangelica Latina v. Southern Pacific Latin Am. Dist. (Cal. Ct. App. - April 27, 2009)
Posted on April 27, 2009Is there anything wrong with this opinion on the merits? Probably not. It's another one of those difficult "who really owns the church" cases, which are always a nightmare. So I'll basically take Justice Zelon's word for it -- at least after twenty-nine pages -- that the trial court got it wrong...
Gardner v. Martino (9th Cir. - April 23, 2009)
Posted on April 24, 2009You've got more rights under the First Amendment if you're a blowhard. Or, to put it as Judge Consuelo Marshall does (sitting by designation), if you're "an opinionated and arrogant" host of a radio show, you're harder to sue for defamation than someone who's actually reasonable...
U.S. v. Crowe (9th Cir. - April 24, 2009)
Posted on April 24, 2009A cohabiting man and woman (who have an eighteen-month-old son) go to a bar to celebrate New Year's Eve. They return home from the bar and get into an argument, which eventually becomes physical. During which one of them grabs a knife from the kitchen counter and fatally stabs the other in the chest...
People v. Waldie (Cal. Ct. App. - April 24, 2009)
Posted on April 24, 2009Two points about this one.(1) Ewwwww. Creepy!! Reading the notes the defendant sent to the 15-year old just made my skin crawl.(2) This is a classic example of an overly agressive view of what counts as "harmless error". There's no way the result in this case is crystal clear, and I could easily see a jury deciding there was reasonable doubt...
Silverbrand v. County of Los Angeles (Cal. Supreme Ct. - April 23, 2009)
Posted on April 23, 2009Sometimes you win in the Court of Appeal and you're really, really happy. Until the case gets taken up by the California Supreme Court. At which point you sometimes realize, if you're smart: "Oh my. I'm going to totally get killed. My argument is wrong on the merits and totally inequitable...
U.S. v. Mendez-Sanchez (9th Cir. - April 23, 2009)
Posted on April 23, 2009Your lawyers are telling you that you're going to be convicted, and are explaining why. I know you don't want to hear it. For reasons both rational and irrational. But you should listen. Really. Getting a new lawyer every time you hear something you don't like won't solve the problem, and eventually the district court will stop the lawyer roulette and start the trial...
Sierra Club v. Department of Transportation (9th Cir. - April 20, 2009)
Posted on April 23, 2009When you win in Congress, you don't have to win in court anymore.I bet you're glad that Obama guy won, right Sierra Club?
Morgan v. American Family Mut. Ins. Co. (9th Cir. - April 22, 2009)
Posted on April 22, 2009I was wondering when we were finally going to see one of these.Over the past decade or so, the Ninth Circuit has become much more pro-certification. I haven't run any hard numbers, but my internal (admittedly vague) calculations are that we're seeing the Ninth certify questions at a rate of triple (or more) of what we did, say, 15-20 years ago...
Buckingham v. Gannon (9th Cir. - April 22, 2009)
Posted on April 22, 2009It's rare enough that you see a district court deny approval of a class action settlement. It's even rarer when the parties attempt to appeal the denial. All of this nonetheless transpires here.For what it's worth, I agree with the per curiam opinion here...
Solis v. Matheson (9th Cir. - April 20, 2009)
Posted on April 21, 2009You could literally write a book -- a whole book -- about federal courts and Native American law generated solely from cases involving smoke shops on Indian reservations. There are that many cases.Here's chapter 21, which involves the FLSA and the application of overtime principles to employees in those smokeshops...
Sinha v. Holder (9th Cir. - April 21, 2009)
Posted on April 21, 2009Is there any reason whatsoever to talk about this opinion, which was published earlier today? Nope. None whatsoever. It merely makes some amendments to an earlier opinion. Nothing special at all.The only reason to even mention the thing is because it's written by Judge Berzon...
County of Los Angeles v. Fairmont Specialty Group (Cal. Ct. App. - April 21, 2009)
Posted on April 21, 2009Does statutory language matter? Sure it does. But so does the policy behind a statute, as well as its purpose.So I could talk at length about the various complicated statutory provisions that govern when bail is forfeited. Or I can just tell you the facts and let you figure out what's fair...
McKnight v. Torres (9th Cir. - April 20, 2009)
Posted on April 20, 2009Let me offer some advice.Let's say you're using some young women to smuggle Ecstacy into the U.S. from France. Mind you, I'm not saying that's what you're actually doing. Let's just say you're doing it. Allegedly.You (understandably) want to strike a deal with the United States, which has indicted you...
Nordyke v. King (9th Cir. - April 20, 2009)
Posted on April 20, 2009I usually don't comment much on high-profile cases, on the theory that most of the arguments will eventually be made elsewhere anyway. So will just mention this case -- a high-profile "right to bear arms" case that's been pending in the Ninth Circuit for forever -- in passing, and let the reader check it out if they'd like...
People v. Flores (Cal. Ct. App. - April 20, 2009)
Posted on April 20, 2009The situation in Riverside is perhaps better -- at least slightly -- than it once was. But it's still a nightmare. Take a look at this if you don't believe me.It used to be that you didn't get any civil trials at all. Now you get them, thanks to special dispensation, once in a blue moon...
U.S. v. Santacruz (9th Cir. - April 20, 2009)
Posted on April 20, 2009Some cases resolve themselves. For example, one in which the sole question presented is: "Does a conviction for possession of child pornography constitute a 'crime of moral turpitude'"?Duh.
Century 21 v. Haberman (Cal. Ct. App. - April 17, 2009)
Posted on April 17, 2009I'm not so sure.Do I agree with Justice Ikola that the complaint here isn't subject to an anti-SLAPP motion? Sure I do. The first count was to recover a $200,000 loan and $14,000 in interest. That's just a routine money claim and isn't a SLAPP. The second count was for a declaration that the plaintiff doesn't have to arbitrate...
Millenkamp v. Davisco Foods Int'l (9th Cir. - April 14, 2009)
Posted on April 16, 2009It's 2009. Computers are the size of walnuts. We're preparing for a mission to Mars. It's a brave new world.But the more things change, the more they stay the same. So I'll summarize this case, which comes (not surprisingly) from Idaho, in four simple words:"You killed my cows...
World Financial Group v. HBW Ins. & Fin. Svcs. (Cal. Ct. App. - April 16, 2009)
Posted on April 16, 2009The thing about the anti-SLAPP statute is that it's sufficiently powerful to be abused. Like here.There's no way that the conduct here counts as "protected activity". The trial court and Court of Appeal find as much. And it's not even close. But defendants still get to obtain a stay of the action below (as well as increase the fees associated with prosecuting the matter) by making an anti-SLAPP motion that, in my view, borders on (but likely doesn't cross) the frivolous...
Mega Life & Health Ins. Co. v. Superior Court (Cal. Ct. App. - April 14, 2009)
Posted on April 15, 2009There are a couple of things that may facially appear to mean something but that actually mean nothing of the sort.So, for example, in this case, we see Justice Richli pointedly refer to Section 3523 of the California Civil Code, which states: "For every wrong there is a remedy...
General Mills v. FTB (Cal. Ct. App. - April 15, 2009)
Posted on April 15, 2009I can't think of a better day for this opinion to be published. You think your taxes -- due today, by the way -- are complicated? Think how tough it must be for unitary corporations with subsidiaries in California to figure out their respective state tax liability for forward and derivative contracts...
U.S. v. Felix (9th Cir. - April 13, 2009)
Posted on April 14, 2009Let me take you -- if you'll have me -- on a digression. But for a good cause. Because it relates to an issue about which I've never devoted much thought, but which I nonetheless had occasion to examine earlier today.We all know the usual rules about practicing in court...
Vidrio v. Hernandez (Cal. Ct. App. - April 13, 2009)
Posted on April 13, 2009If I were Judge McKnew (up in Los Angeles), here's what I'd say about this opinion, which reversed his $1857.50 sanction award: "Okay. You got me. I was angry that Mercury Insurance Company attended a mandatory settlement conference and (1) negotiated in total bad faith by never offering more than $1000, and (2) being rude to me personally...
People v. Smith (Cal. Ct. App. - April 9, 2009)
Posted on April 10, 2009You're sitting in your car, minding your own business, in the parking lot of a motel. A cop sees you and starts questioning you, and you even consent to a patdown search and a search of your car, which finds nothing. What's the reasonable suspicion? Nothing...
People v. Dyke (Cal. Ct. App. - April 9, 2009)
Posted on April 09, 2009Let me reiterate -- and expand upon -- what Justice Rivera holds today in this opinion.(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well...
People v. Earle (Cal. Ct. App. - March 19, 2009)
Posted on April 09, 2009It's the rare case in which the Court of Appeal will find that the consolidation of two criminal charges against a defendant results in reversible error. This is such a case.Or at least that's the opinion of Justice Rushing, who writes a very powerful -- and lengthy (46-page) -- opinion...
In Re Marriage of Corona (Cal. Ct. App. - April 7, 2009)
Posted on April 08, 2009If you're (1) an attorney in San Diego, (2) have a heavily litigated (and somewhat nasty) divorce case, (3) the merits of which involve extensive disclosure of your (and your ex-wife's) assets and property settlement agreement, and (4) not only lost but were sanctioned $5000 below, one of the bad things that can happen on appeal is that you lose your appeal in a published decision...
In Re R.W. (Cal. Ct. App. - April 8, 2008)
Posted on April 08, 2009I understand that this is a dependency case, in which we're (sadly) used to seeing some pretty atrocious facts. For that reason, I can understand and appreciate the following sentence from Justice Fybel's opinion, which nonetheless made my ears perk up, both as a parent and as an educator:"R...
K.J. v. Arcadia USD (Cal. Ct. App. - April 7, 2009)
Posted on April 07, 2009Being in love is a sufficient excuse. Or, to put it as Justice Klein does:"Under the delayed discovery doctrine, accrual of a cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action. Here, K.J. alleged the perpetrator exploited her age of minority, vulnerability and confidence to seduce her into an unlawful and harmful sexual relationship, she believed she was in love with him and that he had done nothing wrong, and she lacked a real awareness that she had been victimized until July 2007, when she gained that insight through psychotherapy...
Fones4All Corp. v. FCC (9th Cir. - April 7, 2009)
Posted on April 07, 2009"Notwithstanding your claim that there's an intercircuit conflict, not a single judge -- and we've got a lot of them -- has voted in favor of your petition for rehearing or requested a rehearing en banc. We know your next step will be to file a petition for certiorari in the Supreme Court that raises the same 'intercircuit conflict' argument you raised here...
People v. Samaniego (Cal. Ct. App. - April 6, 2009)
Posted on April 06, 2009Anyone who listens to Los Angeles traffic reports has heard of "Tujunga," which is a community north of L.A. off the 210 (heading out from Pasadena to the Cajon Pass or Simi Valley). As in: "There's a huge backup on the 210 at Tujunga, so those of you trying to get home during rush hour might as well stay at work for all the good it's going to do you to fight rush hour...
Al Mutarreb v. Holder (9th Cir. - April 6, 2009)
Posted on April 06, 2009Improper service. Failure to check a particular box. Leaving the record blank. For a sense of all the various procedural things that can go wrong in a deporatation case, here you go.I think that Judge Berzon is right to be a stickler here. We generally shouldn't deport someone in absentia and with no real evidence produced against him unless there's a darn good reason to do so...
People v. Dawson (Cal. Ct. App. - April 2, 2009)
Posted on April 03, 2009There's a lot in here that I think we all can agree with. Including but not limited to the opening line of Justice Richman's opinion, in which he says: "We see, yet again, the tragic consequences that can result from the mixture of boating and alcohol?here, the death of Mark Spier...
In Re Masoner (Cal. Ct. App. - April 2, 2009)
Posted on April 02, 2009The plethora of parole-denial appeals that flood the system nowadays typically involve murder convictions in which the parole board (or Governator) denies parole to a seemingly rehabilitated murderer who's spent a lot of time in prison. This case is no exception...
Kauer v. Holder (9th Cir. - April 1, 2009)
Posted on April 01, 2009It's perhaps appropriate that this opinion gets published on April Fool's Day. Because some may find it a joke -- a sad, pathetic joke -- that people can get deported based upon secret evidence that they have no abilty to dispute. The Ninth Circuit, however, thinks it's not so funny...
Bradley v. Gilbert & Kelly v. Human Rts Campaign (Cal. Ct. App. - April 1, 2009)
Posted on April 01, 2009What is it about this date? Both of the opinions published by the Court of Appeal today (one from the Second District, here, and one from the Third, here) deal with disputes involving $1M+ estates. I'd expect that on, say, All Soul's Day, but not April 1...
Hunt v. Imperial Merchant Svcs (9th Cir. - March 31, 2009)
Posted on March 31, 2009Here's a neat little procedural case. That concerns those somewhat unique situations in which, as here, the district court may properly order a defendant to pay for the initial costs of notifying the class members; for example, when (again, as here) the district court has already determined liability prior to certification...
Maropulos v. County of Los Angeles (9th Cir. - March 24, 2009)
Posted on March 31, 2009Reading between the lines: "Qualified immunity appeals are difficult enough without the district court making it harder by merely stating: 'Motion denied.' When that's all we see, we can't tell if it's an insufficiency of the evidence problem (for which appeals are not available) or otherwise...
People v. Chun (Cal. Supreme Court - March 30, 2009)
Posted on March 30, 2009This is the type of work you can do when -- as a court -- you've got a little extra time on your hands. And that's a good thing.Justice Chin writes a very long and good opinion about the second-degree felony murder rule and the related merger doctrine...
People v. Hernandez (Cal. Ct. App. - March 24, 2009)
Posted on March 30, 2009Justice McIntyre (and the rest of the panel) is totally right in this one. Taking property -- even allegedly stolen property -- from a pawnbroker without notice or an opportunity to be heard is indeed a violation of their procedural due process rights...
U.S. v. Ferguson (9th Cir. - March 27, 2009)
Posted on March 27, 2009What does one do with a defendant who's (1) mentally competent to stand trial (under our incredibly lax standards in that regard); (2) wants to represent himself; and (3) is capable of only utter gibberish in his attempt to do (2)?Like Judge Spencer Letts, I've never seen anyone who was so uniformly freakishly out of it as this defendant...
Ramirez v. City of Buena Park (9th Cir. - March 27, 2009)
Posted on March 27, 2009Let me tell you a story. Two stories, in fact. A Tale of Two Police Encounters.The first has been in the news a lot over the past week. Ryan Moats ran a red light and was pulled over by a police officer in the Dallas suburb of Plano, Texas. Moats was rushing to the hospital to visit a dying relative, and explained this fact to the officer -- indeed, the stop was right outside Baylor Regional Medical Center -- but the officer didn't much care...
Sanchez v. Holder (9th Cir. - March 26, 2009)
Posted on March 26, 2009Here's a prototypical example where the facts are good but the law is bad.The question is whether Mario Sanchez is a person of "good moral character". You can read Judge Pregerson's dissent in its entirety -- and it's very good on this point -- to get a complete sense of why Mr...
Long Beach Mem. Med. Cntr. v. Superior Court (Cal. Ct. App. - March 26, 2009)
Posted on March 26, 2009It's very rare for an appellate court to find that an arms-length six-figure payment is insufficiently high to qualify as a good faith settlement under CCP 877.6 and -- on a writ, no less -- reverse the trial court's good faith finding as an abuse of discretion...
U.S. v. Bassignani (9th Cir. - March 25, 2009)
Posted on March 25, 2009The majority opinion (by Judge O'Scannlain) and dissent (by Judge Bea) demonstrate one of two things. Either (1) that the standard of review matters, or (2) that it doesn't.Check it out.
People v. Reyes (Cal. Ct. App. - March 24, 2009)
Posted on March 24, 2009You're from Guatamala. You're in a restaurant and see a guy who's from Mexico who's celebrating a friend's birthday. That's a really good reason to kill the guy. Right.Glad to see you off the street.
People v. Uecker (Cal. Ct. App. - March 24, 2009)
Posted on March 24, 2009Some guys are creepy. Very. And unacceptably so. That's something that's clearly true, and I want to make that crystal clear.So with that understanding, let's run with the concept and see how far it goes. Here are the acts of a person I'll call "Danny Uecker"...
U.S. v. Gutierrez-Sanchez (9th Cir. - March 23, 2009)
Posted on March 23, 2009Here's a case that helps establish a couple of self-evident points. First, that some people really, really want to be in the United States. Like Hugo Gutierrez-Sanchez, who had previously been caught in and removed from the United States twelve times prior to being found in the brush a couple of hundred yards north of the U...
People v. Henry (Cal. Ct. App. - March 23, 2009)
Posted on March 23, 2009It's your trial. During the prosecutor's opening statement, you start saying -- in front of the jury -- "You know what I'm here. They trying to save me life. I didn't do no murder in here." The Court responds: "Stop. Stop." Since your outburst is improper...
People v. Grimes (Cal. Ct. App. - March 16, 2009)
Posted on March 20, 2009Next time the Clerk of the Court gives you a hard time, just remember: They're not perfect either. Take, for example, this criminal case:"The offense occurred on the night of August 20, 2005. Defendant entered his plea on October 14, 2005. He was sentenced on November 23, 2005, and he filed his notice of appeal that same day...
Fisher v. City of San Jose (9th Cir. - March 11, 2009)
Posted on March 19, 2009Want to see another case in which the en banc draw definitely matters? Here you go.It's a case about $1. Or about the sanctity of the home. Or about warrants. Or about the needs of the police to respond to emergencies. It depends on who you ask. What everyone agrees is that the plaintiff here was a guy who needs to drink less and stop making threats and pointing guns and people...
The Nethercut Collection v. Regalia (Cal. Ct. App. - March 19, 2009)
Posted on March 19, 2009"You say to-may-to. I say to-mah-to." Or, as in this case, "You say slader per se, I say slader per quod."Per se. Per quod. Per se. Per quod. It's the latter, so let's call the whole thing off; i.e., reverse the jury verdict of $750,000 and enter judgment in favor of defendant...
321 Henderson Receivables v. Ramos & Red Tomahawk (Cal. Ct. App. - March 18, 2009)
Posted on March 18, 2009Today's a big day for 321 Henderson Receivables Organization, which is a huge player in the California structured settlement market. That market basically consists of entities (like 321 Henderson) who buy up structured settlements -- e.g., tort annuities -- and give the recipients a lump sum...
Symantec Corp. v. Global Impact (9th Cir. - March 11, 2009)
Posted on March 18, 2009There's a difference between a default and a default judgment?! Who knew?(You should feel the dripping sarcasm on this one.)
Alan T.S. Jr. v. Superior Court (Cal. Ct. App. - March 18, 2009)
Posted on March 18, 2009According to a report issued by the CDC this morning, not only did 2007 see the largest number of children born ever in the United States (4,317,119), but the percentage of children born out out wedlock reached an all-time high as well: 40%. Pretty interesting stuff...
People v. Williams (Cal. Ct. App. - March 12, 2009)
Posted on March 17, 2009Here are the facts. Sorry they're so long, but I want you to have the full details. What's the appropriate punishment?"Appellant was released from state prison on Wednesday, May 24, 2006, on parole after a Madera County conviction of forcible rape in concert...
U.S. v. Brobst (9th Cir. - March 9, 2009)
Posted on March 17, 2009If you like kiddie porn (and print it out from the internet), put it away before you hire a contractor to redo your cabinets. Because other people aren't so fond of it, and have a tendency to call the police when they stumble across it in your home.A simple warning, really...
Trout Unlimited v. Lohn (9th Cir. - March 16, 2009)
Posted on March 16, 2009Natural versus hatchery-spawned salmon and steelhead in the Pacific Northwest. Did I know much about this distinction before today? No. But now I do.Sort of interesting stuff.
People v. Kim (Cal. Supreme Court - March 16, 2009)
Posted on March 16, 2009Let's make a list of things not to do.First, if you're a minor, don't possess live ammunition. Yes, it's just a misdemeanor, but still; it's a crime (plus it's lame). Second, if you've ignored my first instruction, while you're on probation for that offense -- and while you're waiting to start your freshman year at UCSB -- don't burglarize a tool shed...
U.S. v. Mayer (9th Cir. - March 16, 2009)
Posted on March 16, 2009This morning sees a dissent from the denial of en banc review. Joined by only three judges. But I mention this dissent because(1) It's got a neat opening line: "This is a train wreck in the making."(2) The average IQ of the dissenters - Judges Kozinski, Reinhardt, and Willie Fletcher -- is quite high...
U.S. v. Hammons (9th Cir. - March 11, 2009)
Posted on March 13, 2009When you have Judges Pregerson and Dorothy Nelson on the panel, you sometimes get an opinion that's much nicer to -- e.g., softer on -- the participants than you might receive from some other judges. For example, here is what Judge Pregerson says about one of the arguments that the AUSA made at oral argument:"The Probation Office also alleged that Hammons had violated the conditions of his supervised release by failing to show up for a drug test and by testing positive for alcohol use...
People v. Garcia (Cal. Ct. App. - March 12, 2009)
Posted on March 12, 2009Do I think that Mario Garcia is guilty of murdering Christie Wilson? Yeah. Probably. (Though the evidence is far, far from clear on this point. Indeed, there's not even a body, and the evidence of Christie's death is a lot less than in many no-body cases...
U.S. v. Hilgers (9th Cir. - March 11, 2009)
Posted on March 12, 2009Sure, Judge O'Scannlain writes the opinion, and Judge Bybee (alongside Judge Graber) is also on the panel, so it's not radically surprising that the court agreed that the district court's (fairly substantial) upward departure from the guidelines was permissible...
Le v. Astrue (9th Cir. - March 10, 2009)
Posted on March 11, 2009Sometimes the law can be flexible and do the right thing. Even in a snare-filled and hypertechnical area such as the contents of your notice of appeal, which is something that we generally require you to do just right.For this reason, I agree with Judge Ikuta here...
People v. Banker's Ins. Co. (Cal. Ct. App. - March 11, 2009)
Posted on March 11, 2009Sometimes it's pretty easy to describe succinctly (and colloquially) competing positions in a case.Justice Haller, writing for the majority: "It's totally easy to say the words 'Bail is forfeited' on the record. That's been the rule for decades. Just do it...
Walker v. GEICO General Ins. Co. (9th Cir. - March 10, 2009)
Posted on March 10, 2009Dude! Your name -- or at least the name on the caption -- is "Johnnie Walker". What are you thinking?! Don't do business as "PJ's Auto Body". Do business as "Johnnie Walker's Auto Body".Here's my idea for your slogan:"Been in a car accident? Time to visit Johnnie Walker!"Feel free to trademark it.
U.S. v. Krstic (9th Cir. - March 10, 2009)
Posted on March 10, 2009Here's a good case for the statutory interpretation crowd. It involves a statute that gets messed up when Congress adds the seemingly innocuous word "such" to it. It's not an obvious problem, but it definitely exists. The statute reads:"Whoever knowingly forges, counterfeits, alters, or falsely makes any immigrant or nonimmigrant visa, permit, border crossing card, alien registration receipt card, or other document ...
Vaden v. Discover Bank (Supreme Court - March 9, 2009)
Posted on March 09, 2009I very rarely post about United States Supreme Court cases, on the theory that they already receive a massive amount of attention and don't need much more from me.But I thought I'd make an exception -- albeit a brief one -- for this case. Because (1) it's a civil procedure case, and (2) on an arcane jurisdictional point, and hence probably won't get much play from anyone other than us (pathethic) civil procedure professors...
Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - March 9, 2009)
Posted on March 09, 2009No one writes a dissent from the denial of rehearing en banc with the Supreme Court as the target audience, right? Nah. Never. How could one think such a thing? How would a judge even try to write an opinion that was designed to encourage the Supreme Court to grant certiorari -- talking about intercircuit splits, the need for national uniformity, the national importance of the issue, etc...
U.S. v. Hahn (9th Cir. - March 4, 2009)
Posted on March 06, 2009I agree with the per curiam opinion here. Even if notice that the judge is considering X is required by the rule, and no such notice is given, that's not fatal if the parties fully brief the issues notwithstanding the absence of such notice.I also agree with Chief Judge Kozinski's succinct concurrence...
Nazari v. Ayrapetyan (Cal. Ct. App. - Feb. 26, 2009)
Posted on February 26, 2009What partions of the following do you think come from a real case, and what parts come from an absurd law school hypothetical:"On March 27, 2003, defendant invited plaintiff to his house for tea. In the backyard, defendant offered to pick an orange for plaintiff...
People v. Hayes (Cal. Ct. App. - Feb. 25, 2009)
Posted on February 25, 2009What does "sharp" mean? It's not just an epistomological, linguistic or abstract question. It matters. Like here.The defendant here gets convicted of violating Section 4502(a) of Penal Code, which prohibits convicts from possessing a wide variety of things in the joint -- e...
People v. Bunyard (Cal. Supreme Ct. - Feb. 23, 2009)
Posted on February 24, 2009This is not the longest death penalty opinion by the California Supreme Court (by far), and tops out at only 33 double-spaced pages. But I can shorthand it for you even more concisely:"Dude, you paid your drifter druggie friend to blow away your nine-months-pregnant wife with a shotgun so you wouldn't have to give her any money in a divorce and could successfully marry your mistress...
Soto-Olarte v. Holder (9th Cir. - Feb. 23, 2009)
Posted on February 23, 2009Want to see how you "distinguish" (read: overrule) prior circuit holdings without an intervening Supreme Court decision? Here's how.The panel here holds that the IJ didn't have a substantial basis for finding the petitioner to lack credibility. Fair enough...
McKay v. Ingleson (9th Cir. - Feb. 23, 2009)
Posted on February 23, 2009The Ninth Circuit has said it once, and they'll say it again (and again). You've got to pay your student loans. Even if you go bankrupt. And even if your creditor is the University itself, who (like Vanderbilt University here) gives you the loan essentially in the form of a credit card, and at an inflated, credit-card like interest rate...
Video Software Dealers Ass'n v. Schwarzenegger (9th Cir. - Feb. 20, 2009)
Posted on February 20, 2009Seventeen-year old lovers of violent video games such as Grand Theft Auto: Vice City and Death Nukem 3D can rest easy. You've got a constitutional right to purchase and play such games, notwithstanding the resulting (alleged) impact on your personality...
Christler v. Express Messenger Systems (Cal. Ct. App. - Feb. 11, 2009)
Posted on February 19, 2009Contrary to the perception of some, not every class action settles. They don't always prevail at trial either. Here's an example.P.S. - Want to know how those blue and yellow "California Overnight" boxes get picked up? Check out the opinion for that as well...
Calemine v. Samuelson (Cal. Ct. App. - Feb. 17, 2009)
Posted on February 19, 2009Just some practical advice for the day. When you're selling a home, and there's been a lawsuit about alleged damage to the home, don't just disclose the damage. Also disclose the lawsuit. Or potentially face another lawsuit yourself.
People v. Murillo (Cal. Ct. App. - Feb. 18, 2009)
Posted on February 18, 2009Here are some teasers to try to persuade you to read this case:(1) It's about a 21 year old woman having sex with a 16 year old boy, a relationship that started a year previously. So it's, in a word, titillating.(2) The woman seems sincerely remorseful...
David A. Karton, A Law Corporation v. Dougherty (Cal. Ct. App. - Feb. 17, 2009)
Posted on February 18, 2009Here's a case that reminded me of the old saying: "Pigs get fat. Hogs get slaughtered."It's a case involving a default judgment against a client who owed an attorney -- David Karton (a Beverly Hills divorce lawyer) -- around $65,000 in unpaid fees and costs...
Affiliated FM Ins. v. LTK Consulting (9th Cir. - Feb. 17, 2009)
Posted on February 17, 2009It's the Tuesday after a long weekend. What better day to sluff off some work?! Or, to use the lingo we employ in the federal judiciary, to certify questions to the state supreme courts.Truthfully, I'm often in favor of certification. Still, I thought that the timing of the orders was worth at least a tiny (good-natured) jab...
Winterrowd v. American General Annuity Ins. Co. (9th Cir. - Feb. 17, 2009)
Posted on February 17, 2009Ever litigate a case in a federal district court outside your state? Lots of us have. Ever consult and/or help another lawyer in one of those cases? Not so rare anymore. Judge Milan Smith has a fairly good quote in this regard that's both accurate and worth repeating: "Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an 'age of increased specialization and high mobility of the bar...
U.S. v. Autery (9th Cir. - Feb. 13, 2009)
Posted on February 16, 2009With all the relevant holidays, it's been fairly slow lately in the appellate world. Nonetheless, here's something to think about as the new week begins.You're on the district court. You've got a person before you who's guilty of possessing child pornography...
Musladin v. Lamarque (9th Cir. - Feb. 12, 2009)
Posted on February 12, 2009Let me put today's 35-page (single-spaced) opinion from the Ninth Circuit a slightly different way than Judge Berzon does:"We previously granted relief to this habeas petitioner because some spectators at his trial had worn prominent inflammatory buttons...
Cotton v. Expo Power Systems (Cal. Ct. App. - Feb. 9, 2008)
Posted on February 11, 2009Want to see a case where both sides might as well flush money down the toilet for all it accomplishes?Here you go.
Citizen of Humanity v. Costco (Cal. Ct. App. - Feb. 11, 2009)
Posted on February 11, 2009Here's an example of an appellate court that has a great deal of common sense and, for this reason, the ability to peer through facially reasonable b***s**t to see what's really going on. And yet, simultaneously, both able and willing to follow the law and let a cognizable claim go forward even when it's a stalking horse for something different...
U.S. v. Cruz (9th Cir. - Feb. 10, 2009)
Posted on February 10, 2009I like how Judge Reinhardt begins this one: "At first glance, there appears to be something odd about a court of law in a diverse nation such as ours deciding whether a specific individual is or is not 'an Indian.'" Because he's right that I wouldn't ordinarily have thought that criminal liability turns upon this issue...
Jamgotchian v. Slender (Cal. Ct. App. - Feb. 9, 2009)
Posted on February 09, 2009My wife and I used to live very close to the Del Mar race track, which we saw during our daily walk around the neighborhood. Notwithstanding that fact, I've never actually been there, and my proximity to the track didn't give me much information about the logistics of horse racing, including all of the details regarding what horse races when...
Dawson v. Marshall (9th Cir. - Feb. 9, 2009)
Posted on February 09, 2009In 2005, when he's a magistrate judge, Judge Larson reviews Dawson's habeas petition and recommends its denial. Dawson then objects and seeks review (as is his right) by an Article III district court judge. In 2006, who in the Central District is assigned to review the objections to Judge Larson's recommendation? Yes, Virginia...
Regal-Beloit Corp. v. Kawasaki Kisen Kaisha Ltd (9th Cir. - Feb. 4, 2009)
Posted on February 06, 2009A train derails in Tyrone, Oklahoma, resulting in alleged damage to the cargo. What law applies to any dispute (including the relevant choice of forum) arising therefrom?Let's see. Train. Derailed. Oklahoma. Hmmm. Let's make an educated guess. . . .Wrong...
Dixon v. Superior Court (Cal. Ct. App. - Feb. 4, 2009)
Posted on February 05, 2009There was something that just didn't look right about this case. I was surprised, for example, that a "reporter" filed a California Public Records Act case seeking autopsy results and yet prosecuted the petition pro per. Not something you usually see...
Ramirez-Altamirano v. Mukasey (9th Cir. - Feb. 4, 2009)
Posted on February 04, 2009Far be it from me to make more of things than is due. But is there something going on here that I should know about?Last week, Judges Wardlaw and Ikuta got into a huge bench slap, something about which I commented here. Don't get me wrong; I like a spirited and vigorous debate, especially among able judges (as are both here) who are convinced that they're right and the other side's wrong...
U.S. v. Al Nasser (9th Cir. - Feb. 4, 2009)
Posted on February 04, 2009Judge Kleinfeld writes an incredibly sophisticated opinion here. Better than I would have thought possible, and certainly better than I could have written. It has much to recommend it. (Plus, I liked the forthrightness of the first footnote, which reads: "Judge Ferguson dissented in our earlier decision in this case ...
San Diego Unified School Dist. v. County of San Diego (Cal. Ct. App. - Jan. 20, 2009)
Posted on February 03, 2009It's a lazy Tuesday thus far. No published opinions by the Ninth Circuit or California Supreme Court today, and none yet by the California Court of Appeal. We'll see what the afternoon brings.Meanwhile, for something a little different, check out a county school district suing its own county...
People v. Bayah (Cal. Ct. App. - Feb. 3, 2009)
Posted on February 03, 2009It's remained a slow day, with only a couple of opinions from the Court of Appeal. But this opinion allows us to at least play one of our favorite games (and a reminder of law school exams): Fill in the blank.How do you think this one comes out: "Two versions of the facts were presented at trial: one told by the deputies who arrested defendant, and the other told by defendant...
Insyst v. Applied Materials (Cal. Ct. App. - Jan. 30, 2009)
Posted on February 02, 2009Electronic service (e.g., e-mail) may perhaps be good for some things. And if there's an attachment, that may perhaps be a close call, and sometimes work.But merely providing a link doesn't constitute proper service. At least under the existing statutes...
Tin Tin Corp. v. Pacific Rim Park (Cal. Ct. App. - Feb. 2, 2009)
Posted on February 02, 2009I imagine that sometimes the California Court of Appeal might want to say: "This case is complicated but really doesn't involve that much money at all. Can't the taxpayers just pay you to go away?"As in this one.It involves the interpretation of a dozen complicated commercial lease agreements, and involves claims and counterclaims by all the parties...
Quon v. Arch Wireless (9th Cir. - Jan. 27, 2009)
Posted on January 30, 2009They're both UCLA Law School graduates with stellar credentials. They both are well-recognized women in Southern California. They were even both O'Melveny lawyers, and indeed overlapped for six solid years. So you're presume that they might be relatively tight, no?And yet this stuff is right out of Celebrity Deathmatch...
People v. Rodriguez (Cal. Ct. App. - Jan. 29, 2009)
Posted on January 29, 2009It's strange enough when your husband takes everything out of the refrigerator and places the contents -- along with your family photographs -- on the floor surrounded by flowers as if for an altar or shrine. That's weird. To say the least.But after he convinces you, at 1:00 a...
People v. Adams (Cal. Ct. App. - Jan. 27, 2009)
Posted on January 28, 2009Need proof that it's not the '60s and '70s anymore? Here you go.It's a guy who's mad at "the man" and who's trying to destroy police cars as a result. Sound familiar? But (1) he's acting alone; (2) he's homeless; (3) his "bombing" techniques leave much to be desired; (4) he's quickly caught, and (5) he's sentenced to 63+ years in prison.
People v. Luna (Cal. Ct. App. - Jan. 22, 2009)
Posted on January 28, 2009Even with my misspent youth and dubious slacker friends, I must admit that I was totally clueless as to how one makes hashish. And if this opinion had remained unpublished, I'd have remained that way.But dude! I, like, totally know how to make hash now! A spigot, PCV pipe, rubbing alcohol, grocery bags full of maijuana, and a crapload of butane is apparently pretty much all you need...
Veyna v. Orange County Nursery (Cal. Ct. App. - Jan. 15, 2009)
Posted on January 27, 2009Unlike the Ninth Circuit, you don't see many opinions at all from the California Court of Appeal that are per curiam. So when it happens, as it does here, it's worth at least brief mention.My (somewhat uneducated) guess is that the Court of Appeal does so here because the ultimate result is the denial of a writ of supersedeas, and maybe the thought is that such a result in such a proceeding is best addressed in an opinion without individual authorship...
Gibson v. Office of Attorney General (9th Cir. - Jan. 27, 2009)
Posted on January 27, 2009This one is close.I definitely agree with everyone on the panel that plaintiffs' claims are meritless. If you're an attorney with the government -- here, with the California Attorney General's Office -- you clearly don't have a First Amendment right to represent whatever clients you want on the side...
In Re Walter P. (Cal. Ct. App. - Jan. 15, 2009)
Posted on January 26, 2009Yes, the maximum penalty for possessing a tiny amount of pot is a fine of $100. But if you're a juvenile, the state can also "ground" you (i.e., command "home supervision") for 45 days and make you do "chores" (i.e., spend eight days in the Juvenile Work Project program) as well...
Doe v. California Lutheran High School Ass'n (Cal. Ct. App. - Jan. 26, 2009)
Posted on January 26, 2009I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student...
Sanai v. Saltz (Cal. Ct. App. - Jan. 26, 2009)
Posted on January 26, 2009I'm impressed by this case on a variety of different levels.First, it tells a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them. It all starts back in 1997 -- over a decade ago -- when Cyrus Sanai rents an apartment in Newport Beach...
Legal Services for Prisoners With Children v. Bowen (Cal. Ct. App. - Jan. 22, 2009)
Posted on January 23, 2009I could write at length about this case, which raises a fascinating (and wonderful) issue regarding whether the disenfrancisement of felons under the Fourteenth Amendment for committing a "felony" is limited only to the commission of a felony at common law...
U.S. v. Selby (9th Cir. - Jan. 15, 2009)
Posted on January 22, 2009If I'm a federal official who gets my spouse a job with a government contractor and then helps work flow that way, once the jury comes back and convicts me of (1) honest services wire fraud, (2) making false claims and statements, and (3) felony conflict of interest, I'm probably going to be freaking out...
In Re Jose C. (Cal. Supreme Ct. - Jan. 22, 2009)
Posted on January 22, 2009I agree that it's an interesting problem, and one that I hadn't thought about before. On the one hand, there's the state's obvious interest in controlling juvenile delinquency, an interest that's reflected by (amongst other statutes) Section 602 of the Welfare and Institutions Code, whch grants state court the power to declare any juvenile who "violates any law ...
People v. Kenefick (Cal. Ct. App. - Jan. 15, 2009)
Posted on January 21, 2009Shelley Kenefick ran a Ponzi scheme that defrauded six investors, some of them elderly, of $890,000. She's convicted in California state court and receives a sentence of 16+ years in prison.Let's remember that and compare it to what Madoff -- who (allegedly) defrauded thousands of victims, including the Elie Wiesel Foundation (!) -- of billions of dollars eventually receives...
In Re Vasquez (Cal. Ct. App. - Jan. 21, 2009)
Posted on January 21, 2009Maybe I can save everyone a little bit of time. Just cut-and-paste the following and fill in the blanks:"Petitioner _________ was convicted of murder a long, long time ago, in ________. Since then, he has been almost/entirely discipline-free -- and has accomplished a great deal of positive things -- while in prison...
People v. iMergent, Inc. (Cal. Ct. App. - Jan. 20, 2009)
Posted on January 20, 2009As Captain Renault might say in the modern era: "What?! Companies that produce infomercials pitching do-it-yourself web storefronts at $4700 a pop often encourage and take advantage of unrealistic expectations of unsophisticated consumers?! I'm shocked! Shocked!"Fortunately, the law is not so deliberately blind...
Phillip Morris USA v. King Mountain Tobacco Co. (9th Cir. - Jan. 20, 2009)
Posted on January 20, 2009Hmmm. Phillip Morris versus King Mountain Tobacco Co. Hard to know which side (if any) to root for, eh?Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here...
Minasyan v. Mukasey (9th Cir. - Jan. 20, 2009)
Posted on January 20, 2009It's a new day. A new president. A new blog format.Everything old is new again. Let the fun begin.Meanwhile, back in the appellate world, we get to decide fascinating questions of statutory interpretation. Such as: What's a "year"?That may facially appear to be an easy question...
Doe v. AOL (9th Cir. - Jan. 16, 2009)
Posted on January 16, 2009It's a rare day that I'm unable to do some quasi-recreational reading of opinions and talk about them. But with an all-day mediation and Restaurant Week here in San Diego -- both of went swimmingly -- yesterday was such a day.Today, by contrast, it's a lazy academic day...
People v. Harbert (Cal. Ct. App. - Jan. 14, 2009)
Posted on January 14, 2009I wasn't at the trial. But I can read. And Justice Richman does a very good job of summarizing the testimony. Given what I've read, I'm pretty darn confident that Lee Harbet was guilty of a hit-and-run. And that, though not convicted of the offense, he was totally drunk (after a seven hour "meeting" at a restaurant/bar) when he hit and killed 55-year old Gardeep Kaur with his Jaguar...
Rubke v. Capital Bancorp (9th Cir. - Jan. 13, 2009)
Posted on January 14, 2009Here's something that doesn't happen every day: a Ninth Circuit judge publishing an opinion on the same day a leading constitutional scholar calls for his impeachment.For the record, while I respect Ackerman's work and intellect, I think he's wrong on this one.
Kaiser v. Abbott Labs (9th Cir. - Jan. 13, 2009)
Posted on January 13, 2009It's an HMO versus a large pharmaceutical company. So I know many people will find it hard to root for either side.But it's also a very interesting patent and antitrust dispute, and for those in the hard core intellectual property field, a definite must read...
In Re Grunau (Cal. Ct. App. - Dec. 30, 2008)
Posted on January 13, 2009There are good appellate lawyers, there are great appellate lawyers, and there are bad appellate lawyers.You can't get much worse than this.
Riverside County Sheriff's Dep't v. Zigman (Cal. Ct. App. - Dec. 23, 2008)
Posted on January 12, 2009You're a cop. So's your spouse. He's been extremely irritable lately, so you ask him what's up. He says he's been using meth. Plus stealing it from suspects and others at work.What do you do?Wholly beyond the resulting ethical issue, there's also a legal one...
Gonzalez v. Duncan (9th Cir. - Dec. 30, 2008)
Posted on January 12, 2009Judge Bybee is a scholar. And even if you didn't know that before, you can tell it from this opinion. Which is written precisely how you'd expect a former law professor to write (at least on this topic).Personally, I like it. It's a comprehensive, structured, coherent, and (in my mind) persuasive analysis of the issue...
In Re Noelle M. (Cal. Ct. App. - Dec. 16, 2008)
Posted on January 12, 2009Don't steal your grandmother's methadone pills (!) and sell them to your friends at a high school football game.People could -- indeed, did -- die.A seemingly obvious message. And yet one that apparently bears repeating.
Espinoza v. Calva (Cal. Ct. App. - Jan. 7, 2009)
Posted on January 12, 2009This is what passes for justice in Orange County?!It's a short opinion, so feel free to read the whole thing. That a judge would think that this was okay more than a little bit surprises me. I mean, come on.
U.S. v. Kaczynski (9th Cir. - Jan. 9, 2008)
Posted on January 09, 2009Let's start out by admitting that you're not the most sympathetic party in the universe when you're the Unabomber. Let's double that when, arrayed on the other side, are the victims of your crimes. I think we can all agree that, emotionally, you've got a pretty steep hill to climb -- regardless of the potential merits of your arguments -- in convincing the Ninth Circuit that you deserve relief...
Prospect Medical Group v. Northridge Emergency Medical Group (Cal. Supreme Ct. - Jan. 8, 2009)
Posted on January 08, 2009I won't say much about this opinion except to say that (1) it's important to anyone who's in an HMO in California, and (2) it's unanimous, which I think tells you a little bit about the merits. Justice Chin holds that even if the HMO doesn't have an agreement with an emergency room physician, the physician can't bill the patient ("balance bill") for any amount charged by the doctor that the HMO decides it won't pay...
Brewer v. Premier Golf Properties (Cal. Ct. App. - Dec. 3, 2008)
Posted on January 08, 2009Here's an appeal that I couldn't have adjudicated. Since I (a) played golf at this course (several times), (b) had the plaintiff as my waitress (ditto), (c) am sure I tipped her as part of the "generous" afternoon, as opposed to cheap morning, crowd (ditto), and (d) am probably -- sadly -- part of the "old" golfer crowd that the manager of the facility allegedly wanted to get rid of in favor of "young high-rollers" (definitely not me)...
In Re Jaheim B. (Cal. Ct. App. - Jan. 7, 2009)
Posted on January 07, 2009Some family law cases are tough. Others, not so much.In some ways, I appreciate the mother's honesty here. The father's in prison in Alabama and not scheduled for release until 2028. The state picks up the child when the mother, Bridgette, drops him off (unattended) in a parking lot 100 yards from a relative's house, a witness sees Jaheim running after Bridgette screaming "Mommy, mommy," and Bridgette gets into a car and drives away...
People v. Crabtree (Cal. Ct. App. - Jan. 9, 2008)
Posted on January 07, 2009Arthur Crabtree's a respectable citizen. He's a lawyer. He's a former police officer. He even serves as a pro tem judge up in Glendale. The kind of guy you want to have on your block, right?Except for the fact that he also stalks and molests children...
In Re Singler (Cal. Ct. App. - Jan. 6, 2009)
Posted on January 06, 2009"On February 1, 2007, Singler?s petition for writ of habeas corpus was summarily denied by this court. . . . On April 25, 2007, the California Supreme Court granted Singler?s petition for review and transferred the matter to this court, with directions to vacate our denial of the petition and to order the Board to show cause why it ?did not abuse its discretion and violate due process in finding petitioner unsuitable for parole in June 2006, and why petitioner remains a danger to public safety...
Metro Lights v. City of Los Angeles (9th Cir. - Jan. 6, 2009)
Posted on January 06, 2009Larry! My man! Welcome back!I learned a massive amount from Larry Tribe, my former boss and professor. I can't say enough about him, both professionally as well as personally. I shan't regale you with stories from my youth, but suffice it to say that Professor Tribe is a gem...
People v. Doolin (Cal. Supreme Ct. - Jan. 5, 2008)
Posted on January 05, 2009The majority (led by Justice Corrigan) and dissent (authored by Justice Kennard) disagree on whether there's constitutional or prejudicial error. But I should hope that we would all agree that a system (here, the County of Fresno's) that tells a criminal defense lawyer "You'll be paid a flat $80,000 to do a death penalty case, and that rate includes all expenses (e...
In Re Complaint of Judicial Misconduct (9th Cir. - Jan. 3, 2009)
Posted on January 05, 2009The Ninth Circuit judicial misconduct process under Chief Judge Kozinski is going to be hard core transparent. So, for example, we're going to publish our resolution of even frivolous complaints from crackpots.Plus we'll make it clear that we're not going to listen to you anymore...
The Thermo Company v. Luther (Cal. Ct. App. - Dec. 17, 2008)
Posted on January 02, 2009I wish I could give you some insight into the exciting opinions published by the Ninth Circuit and California appellate courts during 2009. But no such luck. None yet.Nonetheless, that doesn't stop us from learing. For example, many people think there are too many "fundamental rights," including those allegedly invented by the judiciary...
Belmontes v. Ayers (9th Cir. - Dec. 30, 2008)
Posted on December 31, 2008You should read this one if only to read the concurrence of Judge Reinhardt (joined by Judge Paez) from the denial of the petition for rehearing en banc. Basically, Judge Callahan dissents from the denial in this death penalty case, and begins her dissent by noting that the underlying opinion was the third time the panel in the case had reversed the death sentence...
People v. Bradford (Cal. Ct. App. - Dec. 29, 2008)
Posted on December 31, 2008People admittedly watch a lot of television. Including -- and increasingly -- cop shows. So there's no doubt that many suspects already know their Miranda rights if only as a cultural reference point.Nonetheless, Miranda warnings are not designed to be a game show...
People v. Olguin (Cal. Supreme Ct. - Dec. 29, 2008)
Posted on December 30, 2008Anyone get a pet over the holidays? If so, make sure to tell your probation officer. Because the California Supreme Court holds that it's a permissible condition of probation for a DUI offense (!) to impose a continuing obligation to tell your probation officer of any pets you might have...
People v. Roscoe (Cal. Ct. App. - Dec. 26, 2008)
Posted on December 26, 2008The day after Christmas. A time for family. For shopping. For rest. And for thinking about hopping on that treadmill. Surely not a day for issuing public opinions, right?That's what I would have thought, anyway. And, at least with respect to the Ninth Circuit, I was right...
McGuire v. United States (9th Cir. - Dec. 24, 2008)
Posted on December 24, 2008Show me the money.Okay, so that was fairly obvious. Since the plaintiff's name is Jerry McGuire. Since he filed for bankruptcy (so he clearly needs the money). And since he's suing the government -- initially successfully -- for over a million dollars in damages in a regulatory takings action...
In Re H.E. (Cal. Ct. App. - Dec. 23, 2008)
Posted on December 24, 2008In the spirit of the holidays, be thankful that the mother of your children is not like the mother here.I only know what I read, of course. But I get far from a positive vibe about her. Far.
Salazar-Luviano v. Mukasey (9th Cir. - Dec. 23, 2008)
Posted on December 23, 2008Let's read the first paragraph in the fact section of the opinion and see where we think this one is going. You can basically tell not only what the case is probably about, but also where the panel is likely headed. Here goes:"Salazar-Luviano is a fifty-five-year-old citizen of Mexico, originally admitted to the United States as a lawful permanent resident in 1976...
Patel v. Liebermensch (Cal. Supreme Ct. - Dec. 22, 2008)
Posted on December 22, 2008Back in August 2007, the Court of Appeal down here in San Diego issued an opinion in a fact-specific contract case written by Justice Huffman over the very strong dissent of Justice McIntyre. The question was basically whether this particular contract was specific enough to enforce, with the majority thinking it wasn't and the dissent thinking it was...
Carver v. Lehman (9th Cir. - Dec. 22, 2008)
Posted on December 22, 2008Yes, I know that it's the holiday season. So, yes, you're busy. We all are. Nonetheless, a href="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3D39F93232EB855088257527005E9B89/$file/0635176.pdf?openelement"you've got to read this one/a. It's an instant classic...
In Re R.C. (Cal. Ct. App. - Dec. 19, 2008)
Posted on December 19, 2008Sometimes parental termination cases are difficult to even read (at least for me), as you're left with the firm -- and utterly depressing -- conclusion that none of the participants even have a whiff of a shot , and that the child both never had and currently has almost no shot whatsoever at a reasonable existence...
Van Horn v. Watson (Cal. Supreme Ct. - Dec. 18, 2008)
Posted on December 18, 2008See someone stuck in a car crash and worried that the car might catch fire or explode? Don't pull 'em out. Or at least don't pull 'em out if you don't want to potentially get sued. a href="http://www.courtinfo.ca.gov/opinions/documents/S152360.PDF" 'Cause you can be...
People v. Mentch (Cal. Supreme Ct. - Dec. 17, 2008)
Posted on December 18, 2008This may be surprising for those who know me as a relentless cynic, but I'm affirmatively proud -- yes, proud -- that I reside in California. There's a part of me that identifies with this Great State. I like it. I want to make it better. And I'm happy, and proud, when it does something good...
People v. Yarbrough (Cal. Ct. App. - Dec. 17, 2008)
Posted on December 17, 2008Sorry, my gun-loving friends. There's no right to carry a emconcealed/em weapon under uHeller/u. a href="http://www.courtinfo.ca.gov/opinions/documents/A120721.PDF"At least in California/a.br /br /This is not a surprise for anyone familiar with the Supreme Court's holding...
Aguilera-Montero v. Mukasey (9th Cir. - Dec. 1, 2008)
Posted on December 17, 2008You've been granted a full and unconditional pardon for your possession offense. a href="http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2B07258E313A0A43882575120052F63E/$file/0672956.pdf?openelement"But we're still going to deport you based upon that conviction...
Lewis v. Superior Court (Cal. Ct. App. - Dec. 15, 2008)
Posted on December 16, 2008Let me get this straight. A dude with the last name of "Lewis" is convicted of oral copulation with a minor under the age of 18. What's his first name?Philander.You can't make this stuff up. And I didn't.
Sarei v. Rio Tinto PLC (9th Cir. - Dec. 16, 2008)
Posted on December 16, 2008Want to see how fractured an en banc opinion can be? Take a look.It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent...
People v. Martinez (Cal. Ct. App. - Dec. 16, 2008)
Posted on December 16, 2008I spent a summer after high school living with my then-girlfriend at her parent's house in Canoga Park. It was both fun and memorable, especially for an unworldly kid from Virginia, and especially for one who had never before been to Southern California...
Sklar v. CIR (9th Cir. - Dec. 12, 2008)
Posted on December 15, 2008There's a difference between Orthodox Jews and Scientologists.Or, to put it even more concretely, there's a difference between paying private school tuition to send your kid to a Hebrew Academy and paying whatever charges adult Scientologists pay for their "training" in Scientology...
Seattle Affilliate v. City of Seattle (9th Cir. - Dec. 12, 2008)
Posted on December 12, 2008I think that Judge Fisher beats Judge Ikuta in this one.People are entitled to demonstrate under the First Amendment. The City of Seattle lets them, of course, but can (obviously) subject demonstrations to reasonable time, place and manner restrictions...
People v. Rodriguez (Cal. Ct. App. - Nov. 26, 2008)
Posted on December 11, 2008Perhaps this case struck me harder than usual becuase my wife's a UNC fan (and graduate). Or maybe also because I know that, as a white guy, it wouldn't happen to me.But while stopped at a red light at an intersection in Hayward in September of 2003, Francisco Sanchez -- who had just paid his union dues and wasn't afilliated with a gang in any way -- was murdered in cold blood for no reason other than an idiot Norteno gang member concluded that Sanchez was a member of a rival Sureno gang because he was wearing a blue UNC baseball cap...
In Re Complaint of Judicial Misconduct (9th Cir. - Dec. 10, 2008)
Posted on December 10, 2008There's more than one way to get your name in the Federal Reporter. For example, you can be an attorney and file a frivolous complaint of judicial misconduct. To which the Ninth Circuit will respond by (1) expressly admonishing you in a public forum, and (2) entering a prefiling order against you...
Davies v. Sallie Mae (Cal. Ct. App. - Dec. 1, 2008)
Posted on December 10, 2008If I was a law school graduate (which I am), and if I had gotten seven straight years of economic hardship deferments while I was working as an attorney (which I didn't), I wouldn't have filed a lawsuit against Sallie Mae when it boldly demanded that I actually start paying my loans...
Societe Civil Succession Richard Guino v. Renoir (9th Cir. - Dec. 9, 2008)
Posted on December 09, 2008Copyrights are not perpetual. So it's pretty darn rare, in this day and age, to see a copyright claim involving a series of sculptures created by Pierre-Auguste Renoir. Yes, that Renoir -- the French impressionist who made, inter alia, several $70 million-plus artworks...
Hakopian v. Mukasey (9th Cir. - Nov. 19, 2008)
Posted on December 09, 2008"I've got some good news and some bad news. Good news first. The United States was totally and completely wrong about your asylum application being time-barred. As was the immigration judge and the BIA below. So we're going to publish an opinion that not only makes that fact crystal clear, but that also preserves your name forever in the annals of the Federal Reporter...
Marley v. United States (9th Cir. - Dec. 8, 2008)
Posted on December 08, 2008It's always interesting to see the myriad of ways attorneys trick pro se litigants into losing their case. Like here.Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U...
People v. Zavala (Cal. Ct. App. - Nov. 24, 2008)
Posted on December 05, 2008Sometimes it takes a subtle legal mind to evaluate the complex doctrinal and policy implications of a particular legal principle on appeal in order to assess whether or not the Court of Appeal will reverse.Sometimes, not so much.Here's the opening paragraph of the opinion...
Robinson v. Woods (Cal. Ct. App. - Dec. 4, 2008)
Posted on December 04, 2008I like the strategy here.Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause)...
Ekstrom v. Marquesa at Monarch Beach HOA (Cal. Ct. App. - Dec. 1, 2008)
Posted on December 04, 2008I concede that I'm somewhat personally invested in this decision, since I own an ocean-view home and the case involves whether or not homeowners can enforce a CC&R that requires neighbors to trim any trees -- here, palm trees -- that exceed the height of the home and thereby obstruct the views of other homeowners...
Andrzejewski v. FAA (9th Cir. - Dec. 3, 2008)
Posted on December 03, 2008Melissa Andrzejewski may only be 22 years old (actually, 24 or 25 now), but she's a better pilot than you are. (Cuter, too, apparently.) Moreover, at least in a high-performance Zivco Edge 540, she may well be a better pilot than the people who watched her take off from the Butler County Airport in 2006...
Java Oil Ltd. v. Sullivan (Cal. Ct. App. - Dec. 2, 2008)
Posted on December 03, 2008December 2nd was a bad day for several people: (1) California attorney Andrew Dimitriou (see yesterday's post); (2) non-California attorney John Brown (albeit in 1859); and (3) California quasi-attorney Harold Sullivan.The last of these three had a $3...
Huschke v. Slater (Cal. Ct. App. - Dec. 2, 2008)
Posted on December 02, 2008Oh, sure. Make me look bad, California Court of Appeal. Immediately after I take umbrage at nothing being published today by either you or the Ninth Circuit, go ahead and publish five different opinions. Geeze.At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though...
Lee v. An (Cal. Ct. App. - Nov. 19, 2008)
Posted on December 02, 2008No published opinions today (at least thus far). What's the occasion? I know it's not Nevada Day. No opinions due to Special Education Day? Or the International Day for Abolition of Slavery? Or maybe we're celebrating the 185th anniversary of the enunciation of the Monroe Doctrine...
People v. Rubin (Cal. Ct. App. - Dec. 1, 2008)
Posted on December 02, 2008Dude, I know you like weed. A lot. Really a lot.You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.However, my friend, attention begets attention. In this case, from the LAPD...
Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)
Posted on December 01, 2008It's a random point, but I just wanted to share how much I appreciated footnote 3.The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006...
U.S. v. Murillo (9th Cir. - Dec. 1, 2008)
Posted on December 01, 2008You want to know how you can tell when the Ninth Circuit doesn't like you? When it, inter alia, starts issuing published opinions that (1) reverse your judgments, (2) without the need for oral argument, (3) in two brief paragraphs, and (4) that further remand the case to a different judge...
U.S. v. Weyhrauch (9th Cir. - Nov. 26, 2008)
Posted on November 26, 2008Here's a pre-holiday case that's interesting on a lot of levels.First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion...
In Re Cannon (Cal. Ct. App. - Nov. 25, 2008)
Posted on November 25, 2008Prison inmates may well have a right to be served two hot meals a day pursuant to Section 5058 of the Penal Code and Section 3050(a)(2) of Title 15 of the California Code of Regulations, the latter of which provides that inmates in state prisons shall be "provided three meals each day, two of which shall be served hot...
Ventimiglia v. Board of Behavioral Science (Cal. Ct. App. - Nov. 17, 2008)
Posted on November 25, 2008You're a licensed marriage and family therapist. You're treating an unstable client. Do I really have to say it?Don't have sex with her. Not once. And definitely not for 16 months.Human interactions are complicated. Plus, things are often more complex than they appear...
People v. Mentch (Cal. Supreme Ct. - Nov. 24, 2008)
Posted on November 24, 2008The California Supreme Court held today that you're not a "primary caregiver" under the Compassionate Use Act merely because you're the one in charge of getting someone's pot. That's giving someone care, to be sure. But it doesn't mean that you're their "primary" caregiver...
People v. Cox (Cal. Ct. App. - Nov. 21, 2008)
Posted on November 21, 2008We're heading into Thanksgiving Week. So how better to end the previous week than with an interesting Friday afternoon opinion by Justice Robie.I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district...
Doody v. Schriro (9th Cir. - Nov. 20, 2008)
Posted on November 20, 2008Rarely -- and I mean, rarely -- do you have a court find that a confession was constitutionally involuntary. It's even more rare to make such a finding on federal habeas review, especially post-AEDPA. And it's rarer still for such a finding to be made in an extremely high-profile murder case...
Ahmed v. Mukasey (9th Cir. - Nov. 19, 2008)
Posted on November 20, 2008There are not-very-competent attorneys in every field, of course. But my sense is that immigration law is one of those fields in which there are a higher proportion of attorneys who do extremely little -- or poor (or both) -- work without their client's knowledge...
People v. Connors (Cal. Ct. App. - Nov. 19, 2008)
Posted on November 19, 2008I'm on board for what Justice Cooper says here. It's not the most heinous set of crimes ever, but, still, I'll be happy for the defendant to spend some time in the big house.I mention the case only because it doesn't make the probation department -- at least in L...
Ass'n of Irritated Residents v. San Joaquin Valley UPCD (Cal. Ct. App. - Nov. 19, 2008)
Posted on November 19, 2008Animal pee and poop causes air pollution. So you need to talk about it more.That's a holding that even -- and perhaps especially -- my tiny children can understand.
Aguilar v. Aguilar (Cal. Ct. App. - Nov. 6, 2008)
Posted on November 18, 2008Sometimes you read an opinion and think to yourself: "This is so clearly and obviously right. How could the other side even argue to the contrary? And -- worse -- how could the trial court have gotten it so obviously wrong? Both legally as well as equitably?"This is such an opinion...
Kachlon v. Markowitz (Cal. Ct. App. - Nov. 17, 2008)
Posted on November 17, 2008Donald and Debra Markowitz buy a house from Mordechai and and Monica Kachlon, and include as part of this transaction a $53,000 second mortgage in favor of the sellers. Plus, thereafter, Mordechai does contractor home improvement work for the Markowitz's on the house...
Manco Contracting Co. v. Bezdikian (Cal. Supreme Ct. - Nov. 17, 2008)
Posted on November 17, 2008When does California consider a judgment from Qatar "final" under the UFMJRA? What about Korea?Here's some insight into the answers to those scintillating questions from the California Supreme Court.
Cook v. Avi Casino Enterprises (9th Cir. - Nov. 14, 2008)
Posted on November 14, 2008There's some very good stuff in here about diversity jurisdiction as applied to corporations created by Indian tribes. It's a neat little issue -- at least for those of us fascinated by procedure -- and a matter on which there's both a dearth of authority and reasonable grounds for dispute...
Hecht v. Paul Revere Life Ins. Co. (Cal. Ct. App. - Nov. 5, 2008)
Posted on November 13, 2008I'm pretty impressed by anyone who can fully explain and adjudicate a case in nine short paragraphs. I think that's a rare talent, and not something that can be done (1) in most cases, or (2) by most people. And, to make clear, I include myself in the category of individuals in whom that talent does not reside...
Finnerty v. Board of Registered Nursing (Cal. Ct. App. - Nov. 13, 2008)
Posted on November 13, 2008I knew that there were disputes at the margin about the chain of command in, say, the military. You can't just uniformly say you were "following orders" and be in the clear; there's a degree of professional judgment (albeit circumscribed) involved as well...
Hoopes v. Dolan (Cal. Ct. App. - Nov. 12, 2008)
Posted on November 12, 2008It's always informative when California does something differently than the federal system. It's especially interesting when the difference involves something (as here) in which the divergence may be explained at least in part by the differential treatment of a historical relic...
Williams v. Russ (Cal. Ct. App. - Oct. 27, 2008)
Posted on November 11, 2008Feel free to sue your lawyer. And to demand your client file, as is your right under the ethical rules. But don't then forget to pay the storage fees and let the files be destroyed. Otherwise we will dismiss your malpractice action as a sanction. And the Court of Appeal will affirm...
People v. Anderson (Cal. Ct. App. - Nov. 10, 2008)
Posted on November 10, 2008Justice Duffy decides to publish this opinion today in an effort, I'm sure, to remind everyone not to touch your babysitter. Especially if she's 14 or 15. And even if your touching is only over her jeans and on her inner thigh (with, at most, touching the rim of her underwear)...
Southern Union Co. v. Irvin (9th Cir. - Nov. 7, 2008)
Posted on November 07, 2008The jury initially awarded Southen Union Company (a corporate plaintiff) around $400,000 in compensatory damages against the not-very-nice chairman of the Arizona Corporation Commission, and also awarded $60 million in punitive damages. That's a ratio of over 150 to 1, which, not surprisingly, didn't stand, and the Ninth Circuit reversed back in 2005...
U.S. v. Williams (9th Cir. - Nov. 6, 2008)
Posted on November 06, 2008Sometimes you're reversing the district court based upon an error it has committed and you sort of feel good about that. But sometimes you're reversing the district court and feel bad about it -- or at least feel bad if you make the district judge feel bad...
Rogers v. Royal Carribean Cruise Lines (9th Cir. - Nov. 6, 2008)
Posted on November 06, 2008Seamen, wages, and arbitration. Read all about it.P.S. - I'm sure this will be an additional entry into Force and Norris's aptly titled (but firmly tounge-in-cheek) multivolume work, "The Law of Seamen".
E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc. (9th Cir. - Nov. 5, 2008)
Posted on November 05, 2008I've read a lot -- and I mean, a lot -- of opinions by Judge O'Scannlain. And I've seen a lot of good ones.But this one, in my view, is the most well-written of any of his opinions over past fifteen or so years. Concise. Funny. Insightful. Pithy...
People v. Stier (Cal. Ct. App. - Nov. 5, 2008)
Posted on November 05, 2008It should probably go without saying. But it's nonetheless worth expressly holding. As well as publishing (albeit somewhat belatedly).The police can't handcuff someone just because he's 6'6". If he's cooperative, and there's no real reason to believe he's a threat, you can detain him, but can't handcuff him...
Payne v. Rader (Cal. Ct. App. - Nov. 4, 2008)
Posted on November 04, 2008It's an appeal. The deadlines are jurisdictional. So a single day matters. A lot.
People v. Garcia (Cal. Ct. App. - Nov. 4, 2008)
Posted on November 04, 2008I read a lot of cases. But I don't think my eyes have ever glazed over as much as when I read this opinion.Maybe it was all that food I had at the lunchtime faculty meeting. Or the excitement of the election. Or, just maybe, the incredibly dry and complicated topic of the opinion, which involved a fact-specific calculation of the defendant's proper sentence...
Auerbach v. Assessment Appeals Board (Cal. Ct. App. - Oct. 30, 2008)
Posted on November 01, 2008So the Ninth Circuit closes out October by not issuing any published opinions for three straight days, and then today, what does it come up with? Only this order (in a FERC case on remand from the Supreme Court that the Ninth Circuit simply remands back to the district court in a single paragraph) and this opinion (an immigration case in which submission was deferred pending an opinion in an earlier-submitted case and, at least as held by the majority, is on all fours with the Ninth Circuit precedent subsequently published in that case earlier this year)...
Apollo v. Gyammi (Cal. Ct. App. - Oct. 31, 2008)
Posted on October 31, 2008Three straight days now with no published opinions from the Ninth Circuit. But, again, the California Court of Appeal takes up the slack. Including this opinion, which is definitely worth a read. Not because it establishes any critical precedent. But rather because it's an interesting set of facts...
Turner v. Association of American Medical Colleges (Cal. Ct. App. - Oct. 30, 2008)
Posted on October 30, 2008For anyone who wants to take the MCAT, this is an important case. It's also important, by analogy, to those of us in the legal field. Especially those of us in the academy. Since what's good for the MCAT is almost certainly good for the LSAT as well. And, potentially, for law school exams as well...
In Re Charllisse C. (Cal. Supreme Ct. - Oct. 30, 2008)
Posted on October 30, 2008The Ninth Circuit has taken the last couple of days off, at least as far as published opinions go. Fortunately, there's no rest for the weary in the California appellate courts.Today the California Supreme Court gives the following lesson about how to avoid dissent...
People v. Newby (Cal. Ct. App. - Oct. 29, 2008)
Posted on October 29, 2008A woman named Julie tells her fiancee that she's breaking off the engagement and leaving him. The fiancee (William Newby) responds by "grab[bing] Julie by the throat and punch her in the face several times with his fist. Eventually falling to the floor, drifting in and out of consciousness, Julie watched as defendant continued the attack by kicking her in the face with his steel-toe boots...
U.S. v. Snellenberger (9th Cir. - Oct. 28, 2008)
Posted on October 28, 2008I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam...
People v. Conception (Cal. Supreme Ct. - Oct. 27, 2008)
Posted on October 27, 2008Here's yet another reason not to attempt to escape from custody once your trial has started. Not only will they give the jury an adverse instruction about flight, but they'll also keep your trial going in your absence. Even if you're promptly caught...
Citizens for Civic Accountability v. Town of Danville (Cal. Ct. App. - Oct. 27, 2008)
Posted on October 27, 2008Yes, we live in an electronic era. But that doesn't mean that California statutes are necessarily in the 21st century.So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means...
U.S. v. Hinkson (9th Cir. - Oct. 20, 2008)
Posted on October 24, 2008When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.So the vitriol -- from the panel opinion, at least -- won't be cited as precedent...
U.S. v. Fiander (9th Cir. - Oct. 23, 2008)
Posted on October 23, 2008Contraband cigarette trafficking. It still exists. And while we can't charge members of the Yakima tribe (up in Washington) with substantive violations of the Contraband Cigarette Trafficking Act for not getting shipments approved in advance, we can, the Ninth Circuit held, charge them with a RICO conspiracy...
Styers v. Schriro (9th Cir. - Oct. 23, 2008)
Posted on October 23, 2008One may perhaps take umbrage that it has taken 18 years for this death penalty case to work its way through the Arizona state system and finally get to the Ninth Circuit (after every court below denied relief). But you can't make the claim that the Ninth Circuit has inexcusably added to any such delay, as the oral argument was on August 20th, and the per curiam opinion was published today, two months later...
Mangano v. Verity (Cal. Ct. App. - Oct. 22, 2008)
Posted on October 22, 2008I agree with Justice Mihara that the defendant employer here was entitled to summary judgment in its favor, as well as an award of post-998 offer costs (but not attorney fees). So I have no complaints about the merits.Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr...
El Dorado County Dep't of CSS v. Nutt (Cal. Ct. App. - Oct. 21, 2008)
Posted on October 22, 2008I can't think of a more important use of social resources than for the government to bring and defend on appeal a child support action against a penniless three-strike prisoner who's in prison, not able to work, and eligible for parole as early as 2045...
New v. Kroeger (Cal. Ct. App. - Oct. 21, 2008)
Posted on October 21, 2008The Episcopal Church has had a lot of defections recently as a result of its decision to ordain an openly gay bishop (just like, several decades ago, they had a lot of defections when they decided to ordain women). As a result, there have been several fights in secular courtrooms about who "owns" the property of a particular defecting church...
Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)
Posted on October 21, 2008Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right...
Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)
Posted on October 20, 2008A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out...
Porter v. Osborn (9th Cir. - Oct. 20, 2008)
Posted on October 20, 2008Don't pull off on the side of the road in Alaska. You may well be killed. And it might be by the police.The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.
Cundiff v. Verizon Wireless (Cal. Ct. App. - Oct. 16, 2008)
Posted on October 17, 2008You're killing me. The second straight day of no published opinions from the Ninth Circuit. And from the California appellate courts, here -- in toto -- is the entirety of what's been published today: "It is ordered that the opinion filed herein on September 30, 2008, be modified as follows: 'On page 8, the last sentence of the opinion is modified to read: ?Respondents to receive costs on appeal...
Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)
Posted on October 16, 2008Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment...
O'Leary v. Aubrey (Cal. Ct. App. - Oct. 7, 2008)
Posted on October 15, 2008Desert. Very little today. Nothing at all from the California Court of Appeal. From the Ninth Circuit, only a guidelines case, a standard of review case, and a "how much interest does one particular guy get on unclaimed property held for him by California" opinion...
Hoffman v. Citibank (9th Cir. - Oct. 14, 2008)
Posted on October 14, 2008The Ninth Circuit remands -- "respectfully" (though I think they actually mean it this time) -- so the district court can apply the correct law in a more rigorous fashion than it did previously. Judge Trott concurs to basically slam the California Court of Appeals for not getting on the same page...
In Re Christopher Columbus (All Courts - Oct. 13, 2008)
Posted on October 13, 2008It's Colubus Day. Which means very little to us working stiffs, but to the California Court of Appeal and the Ninth Circuit, it means a holiday. So no opinions today.Given the dearth (indeed, total absence) of opinions today, I thought I'd briefly make a random comment...
Sturgeon v. County of Los Angeles (Cal. Ct. App. - Oct. 10, 2008)
Posted on October 10, 2008It's bad enough that your investments are plummeting, your house is worth only a fraction of what you paid for it, and your retirement accounts are completely tanking. But, in the midst of all of this, the Court of Appeal wants to make your weekend even worse...
California Coastal Comm'n v. Allen (Cal. Ct. App. - Oct. 1, 2008)
Posted on October 10, 2008There are lots of ways to lose your home, especially in the contemporary financial market. Here's another.Even multi-million dollar Malibu homes are not immune.
People v. Briones (Cal. Ct. App. - Oct. 9, 2008)
Posted on October 09, 2008I don't know why the Court of Appeal decided not to publish Part I of this opinion. It's an important issue, and one that I imagine arises with some frequency; indeed, introducing testimony like this may well arise from an outline that a wide variety of prosecutors use when examining witnesses who have made a deal...
Pacific Sunwear v. Oleas Enterprises (Cal. Ct. App. - Oct. 9, 2008)
Posted on October 09, 2008The things I don't know about the UCC could fill a book. A book roughly the size of, say, the UCC.I know a decent amount about intellectual property (though much less than my wife), but did not realize until this morning that the UCC -- including California's version of it -- has a fairly strong default value that the seller warrants that the products are delivered free of any infringement claims...
Stillwell v. The Salvation Army (Cal. Ct. App. - Oct. 6, 2008)
Posted on October 08, 2008There's not much today. Just a couple of opinions from the Ninth Circuit and one from the California Court of Appeal. For some reason, the beginning of October seems to be fairly slow. I blame professional football and the MLB playoffs.There is one opinion from a couple days ago that I went back and reread this morning...
U.S. v. Delgado (9th Cir. - Oct. 7, 2008)
Posted on October 07, 2008I guess I could have figured it out by reasoning from first principles. But I'll admit my ignorance, and that I did not know -- until this morning -- that the police can conduct warrantless seizures/stops of commercial trucks for with no probable cause (or even reasonable suspicion) whatsoever...
Alaska Independence Party v. State of Alaska (9th Cir. - Oct. 6, 2008)
Posted on October 06, 2008The Alaska Independence Party got more than its typical share of press after the discovery of the Palins' connections thereto. So we may collectively know a little more about its substantive views than we did previously; nonetheless, for insight into the manner in which the AIP nominates its candidates during the primaries, and for insight into how it wishes it could nominate its candidates, check out this opinion...
Slovik v. Yates (9th Cir. - Oct. 6, 2008)
Posted on October 06, 2008Want to know how coin-operated pool tables know how to send the cue ball back to you? Judge Bybee helps out in footnote 2. In the midst of reversing a conviction for throwing pool balls during a bar fight. Down here in San Diego, no less.Or you can read this...
Caldwell v. Caldwell (9th Cir. - Oct. 3, 2008)
Posted on October 03, 2008How things can change. When I first started reading this opinion (by Judge Rymer), my initial reaction was that (1) the plaintiff had standing to bring the action, but (2) the merits of the lawsuit were incredibly weak. But as to the first point, Judge Rymer -- as well as Judge Betty Fletcher's concurrence -- persuaded me that plaintiff probably didn't have standing...
Castaneda v. United States (9th Cir. - Oct. 2, 2008)
Posted on October 02, 2008Let me preface this with the following: Read at your own risk. Remember, I'm just quoting. But for the squeamish amongst you -- especially you men -- maybe you should just skip this one. (By contrast, for a glimmer of the nature of the beast, you can just read the sentences I've underlined):"Francisco Castaneda was imprisoned by the State of California following a December 6, 2005 criminal conviction and held in the custody of the California Department of Corrections (DOC) until his early release date, March 26, 2006...
McFarland v. Kempthorne (9th Cir. - Oct. 2, 2008)
Posted on October 02, 2008You may well own two-plus acres of land in the middle of the "Big Prairie" in Glacier National Park (in Montana). And we have let you get to your property in the past by driving on Glacier Route 7.But, at this point forward, if you want to get to your land -- at least during the winter -- you're going to have to walk...
M.V. v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)
Posted on October 01, 2008We spent all day Monday in my "Law of Love" class talking about statutory rape. The typical offender, of course, is male. But just as obvious is the fact that there are numerous exceptions to this general rule.The next day (yesterday), Justice Ikola graciously publishes this opinion, which involves an Orange County woman who was (1) arrested for consensual sexual intercourse with a 15-year old boy, (2) had her two-year old son taken away from her (and put into protective custody) based upon her arrest and incarceration; (3) spent four months in county jail as a result of the charge; (4) was promptly deported to Mexico; and (5) then reunification services terminated (and a hearing set on permanent termination of her parental rights) due to the fact that her incarceration and subsequent deportation precluded her from spending a lot of time with her two-year old boy (who remained in protective custoday in the United States)...
Freedom Communications v. Superior Court (Cal. Ct. App. - Sept. 30, 2008)
Posted on October 01, 2008Talk about speedy justice.Freedom Communications (i.e., the Orange County Register) is being sued in a wage-and-hour class action by its newspaper carriers. Ten days before the trial, counsel for plaintiffs seeks an ex parte order that precludes the O...
Golden Gate Restaurant Ass'n v. City and County of San Francisco (9th Cir. - Sept. 30, 2008)
Posted on September 30, 2008When the Ninth Circuit grants a stay of the district court's order, that's often a hint as to what might happen on the merits.As it was here.
Vaught v. Scottsdale Healthcare Corp. (9th Cir. - Sept. 29, 2008).
Posted on September 30, 2008Here's another reason not to drive drunk. Because your health insurance company may well deny benefits to you, leaving you solely responsible for all of your (massive) hospitalization costs.Didn't know they could (and did) do that. Good to know.
People v. Munoz (Cal. Ct. App. - Sept. 29, 2008)
Posted on September 29, 2008Don't pass counterfeit bills. Don't pass and possess counterfeit bills each of which contains the same serial number. And, for goodness sake, don't pass counterfeit bills to pay your motel bill while you're still there, at least if there's stuff in the motel room you'd like to hide...
Perez v. City of Los Angeles (Cal. Ct. App. - Sept. 29, 2008)
Posted on September 29, 2008This is not your usual police misconduct case.My reaction to most of the opinions I read in which a police officer has been terminated (and then appeals his or her termination) involve negative reactions towards the officer and a feeling that the termination was more than justified...
M.B. Financial Group v. USPS (9th Cir. - Sept. 25, 2008)
Posted on September 26, 2008Want to know when (if ever) you can sue the United States Postal Service? Want to read a good statutory interpretation case? Want to see how a dissent might practically employ law and economics to advance a particular result?If the answer to any of these three questions is "Yes," here's your assigned reading for the day...
Crawford v. Astrue (9th Cir. - Sept. 25, 2008)
Posted on September 25, 2008This is a hard one. Make even harder by the fact that both the majority opinion (written by Judge Friedman, sitting by designation from the Federal Circuit, and joined by Judge Randy Smith) and the dissent (authored by Judge Betty Fletcher) make some pretty darn good points...
DirecTV v. Webb (9th Cir. - Sept. 25, 2008)
Posted on September 25, 2008You can occasionally obtain helpful life tips by reading Ninth Circuit opinions. Tips that will make your life go a little bit better, without the nasty bumps that events may otherwise sometimes bring.So, for example, after reading this case, one might easily derive the following lesson: When you're stealing DirecTV by buying pirated access devices over the internet, make sure to tell your girlfriend...
Bourgi v. West Covina Motors (Cal. Ct. App. - Sept. 24, 2008)
Posted on September 24, 2008Remember that "new" car you purchased at the dealership? Are you sure it was really "new", as opposed to previously damaged, repaired, and then sold as "new"?Think again.Interesting stuff. Even if you don't happen to have purchased a "new" Hummer from Hummer of West Covina that, as it turns out, was one of the manny Hummers previously damaged by the Earth Liberation Front.
U.S. v. Gomez-Leon (9th Cir. - Sept. 24, 2008)
Posted on September 24, 2008As anyone down here knows, the process is slow. But, eventually, if you commit enough crimes, and if you return after being deported again and again and again, they're eventually going to let you stay in the U.S. for a while. But you'll do so in prison...
State of Alaska v. Federal Subsistence Board (9th Cir. - Sept. 23, 2008)
Posted on September 23, 2008The lovely town of Wasilla, Alaska has gotten a fair amount of attention recently thanks to Sarah Pahlin. But Wasilla at least has several thousand residents.More overlooked, however, is the even prettier town of Chistochina, Alaska. Which has a total population of 97 souls...
In Re Shane G. (Cal. Ct. App. - Sept. 23, 2008)
Posted on September 23, 2008I'm glad that Justice McConnell decided to publish this opinion. Not because it has any huge precedential significance. But rather because I learned something.I'm the father of three small children, from age six to age one. But until I read this opinion, I didn't know what "enuresis" was...
Quinones v. Superior Court (Cal. Ct. App. - Sept. 22, 2008)
Posted on September 22, 2008I don't care how big or strong you are. In San Diego, at least, if you get into a beef with another vehicle on the road, don't get out of your car and attempt to make even marginal hay. Nothing good will become of it. Either for the "winner" or "loser" of the resulting battle of wills.
Barrett v. Belleque (9th Cir. - Sept. 22, 2008)
Posted on September 22, 2008Ah, the good old First Amendment. And the speech it protects. Including the right of a prisoner to send letters to his mother and grandmother (!) using vulgar and racist language to describe his captors.Actually, the Ninth Circuit doesn't even hold that -- it merely holds that the complaint here survives a motion to dismiss...
In Re Asencio (Cal. Ct. App. - Sept. 15, 2008)
Posted on September 19, 2008Bad Fact No. 1: Your six-year old niece has gonorrhea.Bad Fact No. 2: So do you.Bad Fact No. 3: Your niece tells the police, while crying, and utterly credibly, that you improperly touched her.Bad Fact No. 4: You admit to the police that you did indeed improperly touch her...
Dumontier v. Schlumberger Technology Co. (9th Cir. - Sept. 11, 2008)
Posted on September 19, 2008Defendant carelessly left some cesium-137 lying around, and you were exposed to it. You're freaked out, and would like to sue -- and at least get reimbursed for monitoring for cancer.Tough luck. At least in the Ninth Circuit.Sorry about that, Chief.
Cosa v. Mukasey (9th Cir. - Sept. 15, 2008)
Posted on September 18, 2008It's amazing what you can learn by reading published opinions. For example, before this one, could I have told you what Millenism entails? Nope. No way. It's not even in Wikipedia, for goodness sake. (And, for you football fans, no, Millenism does not in fact involve the worship of Matt Millen...
Carmona v. Carmona (9th Cir. - Sept. 17, 2008)
Posted on September 17, 2008When you're reading a case about ERISA and the Rooker-Feldman doctrine (i.e., zzzzzzzz), you don't typically expect to see sentences like: "the dispute in this case only concerns wives number eight and nine. None of the previous seven wives are involved in the present litigation...
Bromfield v. Mukasey (9th Cir. - Sept. 15, 2008)
Posted on September 17, 2008We get up on our high horse sometimes.Let's not forget that as recently as five years ago, some of the United States still retained criminal statutes that penalized homosexual sodomy with up to twenty years in prison. And that within the last twenty or so years, even our highest Court approved such prosecutions...
People v. Love (Cal. Ct. App. - Sept. 16, 2008)
Posted on September 16, 2008Watch out who you hire your receptionist. So, for example, don't hire someone who has four prior felony and two prior misdemeanor convictions for theft-related offenses.Even if her name is (the cool-sounding) "Sumaria Love".
NRDC v. Winter (9th Cir. - Sept. 16, 2008)
Posted on September 16, 2008I gotta agree with Judge Milan Smith in this one. Junior associates at Irell typically don't have "sufficiently distinctive skills" to justfiy an enhanced award under the EAJA. And I say that having known a lot of junior associates at Irell.Which is not to say that these people are only worth the statutory cap of $125/hour...
U.S. v. Drake (9th Cir. - Sept. 15, 2008)
Posted on September 16, 2008The criminal justice system in Guam doesn't come out smelling like a rose here.From a dubious initial traffic stop to two years of delay to having to turn over charges in an utterly routine prosecution to the United States to an entirely deficient record, what transpired here hardly screams "excessive competence...
White v. Mayflower Transit (9th Cir. - Sept. 12, 2008)
Posted on September 15, 2008Looking to get your first argument in the United States Supreme Court? Think you might get there by taking an utterly boring issue , but nonetheless one about which there's a fairly strong circuit split? Looking, in a perfect world, for a perfect vehicle in which you can easily take the matter over; for example, a case previously (and unsuccessfully) litigated by a pro se litigant who's got nothing to lose, and everything to gain, by letting you take over the case pro bono and file a pure "circuit split" certiorari petition?Then here's your dream.
Kievernagel v. Kievernagel (Cal. Ct. App. - Sept. 12, 2008)
Posted on September 12, 2008Who owns sperm? That may seem like a totally silly question. But it's not. And it matters.Justice Morrison holds that the guy owns it, and that makes sense. Now, the guy can give the sperm away, of course. In a wide variety of ways. (And, no, I'm not going to provide a hyperlink for that last sentence...
Hassan v. Chertoff (9th Cir. - Sept. 11, 2008)
Posted on September 12, 2008Your last name is Hassan. You're from Pakistan. You've been living in the United States, and the DHS has treated you pretty shabbily (IMHO). You're trying to get back into the U.S. after being somewhat tricked into leaving (for Saudi Arabia), so you file an appeal...
Winter v. Window Fashions Professionals (Cal. Ct. App. - Sept. 10, 2008)
Posted on September 11, 2008Here's yet another reason not to include in any contract you draft a clause -- whether relating to arbitration or anything else -- that says "X, but X may not be valid in California."At least if you personally would like X to be the case, just say X. Whether X is enforceable or not, leave that a question for another day (and another forum)...
People v. Cross (Cal. Supreme Ct. - Aug. 28, 2008)
Posted on September 11, 2008Getting pregnant counts as "great bodily injury".Just so you know.
Truth v. Kent School District (9th Cir. - Sept. 9, 2008)
Posted on September 10, 2008"We took over a year after oral argument to decide what would seem like a relatively straightforward case involving a student club. But at least we got it right, back in 2007, and unanimously affirmed.""Oops. Did we say 'affirmed'? We meant, of course, 'reversed and remanded,' at least in part...
Edwards v. Ayers (9th Cir. - Sept. 9, 2008)
Posted on September 09, 2008I'm as insensitive as the next guy, especially when reading judicial opinions. Believe me.Still. It's a death penalty case in which the defendant totally randomly shot two 12-year old girls at in the head with a rifle at a campground, killing one of them (Vanessa Iberri)...
Showing Animals Kindness and Respect v. City of West Hollywood (Cal. Ct. App. - Sept. 9, 2008)
Posted on September 09, 2008Think you know what "advertising" means? What an "advertisement" is?Read this.Still sure?An interesting difference of opinion between Justice Rothschild and Justice Mallano.P.S. - I like the 110-inch television screen concept. But I'd rather it display, say, sports -- rather than pictures of animals being killed (alongside their screams -- presumably in stereo)...
Center for Biological Diversity v. California Fish & Game Comm'n (Cal. Ct. App. - Sept. 2, 2008)
Posted on September 08, 2008It's been a lazy Monday thus far. Nothing from the Court of Appeal (or the California Supreme Court, though that's no surprise), and only one published opinion from the Ninth Circuit (on a fairly routine asylum case).So I thought I'd just quote a memorable line from one of last week's published opinions:"The information in the administrative record shows the [tiger] salamander species does not breed prolifically, is vulnerable to several significant threats, has lost most of its original habitat, and has been displaced by a hybrid from a significant portion of its range...
U.S. v. Nader (9th Cir. - Sept. 5, 2008)
Posted on September 05, 2008Your prostition business may well be exclusively in-state. All of the phone calls that your customers make to you may well be in-state calls. But you can still be convicted of violating the federal Travel Act because your use of a telephone is a "facility" of interstate commerce...
Rodriguez v. Smith (9th Cir. - Sept. 4, 2008)
Posted on September 04, 2008Judge Rawlinson, joined by Judge Hug, says (in essence): "Five circuits have already decided this exact issue. Four of them have decided X. Only one of them has decided Y. We think that the four are more persuasive than the one, so that's the way we're going...
KRAI v. United States (9th Cir. - Sept. 4, 2008)
Posted on September 04, 2008Sorry, KRAI. You don't own one of the (far-away) Hawaiian Islands. As fun as that'd be. Even if you did own it, the statute of limitation makes you SOL (s*** out of luck) on this one.P.S. - The relevant "island" at issue -- Kingman Reef Atoll -- actually sounds pretty cool.
Cascade Health Solutions v. PeaceHealth (9th Cir. - Sept. 3, 2008)
Posted on September 04, 2008"I know we certified a question to you, Oregon Supreme Court. But I've got good news. Never mind."Good to know people can still get along.
People v. Warner (Cal. Ct. App. - Sept. 3, 2008)
Posted on September 03, 2008"Douglas William Warner commenced a romantic relationship with his next-door neighbor while she was engaged in bitter child custody litigation with her husband, who later accused him of abusing the couple?s child. His arrest at his apartment in front of his friends infuriated him...
Johanson v. C.I.R. (9th Cir. - Sept. 3, 2008)
Posted on September 03, 2008As Judge Silverman put it this morning (in the midst of holding that the alimony payments at issue here were taxable to the recipient because they terminated upon death): "The fact that Weiler continues to pay spousal support after Johanson remarried does not constitute a written agreement regarding the status of payments in the event of Johanson?s death...
Villegas v. Gilroy Garlic Festival Ass'n (9th Cir. - Sept. 3, 2008)
Posted on September 03, 2008Come on. En banc draws don't really matter at all. They're all pretty representative, right? Nothing really rides on them.Really?Here's a 6-5 decision in a Section 1983 case. The six in the majority conclude there's no Section 1983 violation, and the five in dissent conclude otherwise...
Johnson v. Knowles (9th Cir. - Sept. 2, 2008)
Posted on September 02, 2008"You've got an argument, Petitioner. An argument that admittedly finds some support. But that support comes from the bottom, not top, side of a 6-3 decision by the Supremes. And that's neither the side on which you want to be nor is it sufficient to allow your untimely habeas petition to go forward...
Salinas v. Martin (Cal. Ct. App. - Aug. 28, 2008)
Posted on September 02, 2008Letting pit bulls run around your property can create liability.Shocking, I know.
In Re Antonio B (Cal. Ct. App. - Aug. 28, 2008)
Posted on August 29, 2008You're walking down the street with your buddy. He's smoking a doobie. There's just the two of you.Three police officers come up to you guys and arrest your buddy. You don't try to fight, flee, or anything else, and haven't done anything wrong. Can they put you in cuffs?No...
Richards v. Richards (9th Cir. - Aug. 28, 2008)
Posted on August 28, 2008Don't hire your lover to kill your spouse. Otherwise you'll get . . . pretty much away with it, but only $50,000 of his million dollar life insurance policy.Well, I guess not getting the whole million is some disincentive, anyway.
Barba v. Perez (Cal. Ct. App. - Aug. 28, 2008)
Posted on August 28, 2008As a person keenly interested in litigiation strategy, I very much enjoy it when the Court of Appeal not only issues opinions that generate opportunities for tactical behavior, but also goes ahead and gives tactical pointers. And when, on those rare occasions, there's a conflict between the justices, and each gives his or her own insight into the tactical move and countermoves that are generated by the court's holding, it's pure gold, IMHO...
Chimenti v. Weisz (Cal. Ct. App. - Aug. 27, 2008)
Posted on August 27, 2008How do you think you'd feel if, upon your death, this is the way you were remembered in the everlasting pages of the California Reporter:"At the time he executed his will, Joseph Clementi was living in Philadelphia, Pennsylvania. Richard E. Weisz was Clementi?s accountant, and apparently his only friend...
People v. Bolton (Cal. Ct. App. - Aug. 27, 2008)
Posted on August 27, 2008Here's an interesting case. From down here in San Diego, even. Concerning a defendant with a cool name -- "Exodus Bolton" -- but who I'd just as soon not meet on the trolley, thank you very much.For those ethics junkies out there, it's a must read. Ditto for criminal defense lawyers...
In Re Bardzik (Cal. Ct. App. - Aug. 26, 2008)
Posted on August 26, 2008This afternoon brings us this modification of this original opinion by Justice Sills. Who, apparently, has been watching the Food Network a fair piece lately, and adds (inter alia) the following soup analogy as a means of comparing and contrasting various cases:"Where the evidentiary facts in the case before us make up a thin consommé indeed, in Mosley they were, as in Hinman VIII and La Bass & Munsee, thick as lentil stew...
Zhao v. Mukasey (9th Cir. - Aug. 26, 2008)
Posted on August 26, 2008Some cases are fairly simple.You're a married couple from China. You are practitioners of Falun Gong. You've got a good (and credible) story of religious persecution by Chinese authorities. And you filed an affirmative asylum claim within a year of coming to the United States (i...
Dzyuba v. Mukaasey (9th Cir. - Aug. 25, 2008)
Posted on August 25, 2008Let me offer some additional help -- beyond that provided by the Ninth Circuit earlier today -- to the BIA on remand.As recent events should have made crystal clear, the former republics of the USSR aren't all the same country. Georgia isn't Russia. Georgia isn't the Ukraine...
U.S. v. Easterday (9th Cir. - Aug. 22, 2008)
Posted on August 22, 2008Normally, when everyone on the panel agrees that the defendant's conviction is just and proper, you simply affirm. Here's one of the exceptions to that rule.The difficulty here is that there's circuit precedent that everyone on the panel agrees is both on point and also would require a reversal of the conviction, but everyone also agrees that this precedent is wrongly decided...
McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)
Posted on August 22, 2008You see plenty of death penalty cases that take a long period of time. So, sure, the murder that gave rise to the death penalty at issue here took place in the 70s. That's right: The 70s. That's a long time ago, even when you consider that the death sentence wasn't imposed until 1981...
In Re Shaputis & In Re Lawrence (Cal. Supreme Ct. - Aug. 21, 2008)
Posted on August 21, 2008As I've often discussed, there's been a lot going on in the California Court of Appeal in response to the nearly uniform decisions of the last several Governors (Davis & Terminator) to reverse the recommended grant of parole to anyone convicted of murder...
Koninkluke Phillips Electronics v. KXD Technology (9th Cir. - Aug. 20, 2008)
Posted on August 20, 2008Bad things can happen to you when you manufacture and sell counterfeit goods. Even before trial. For example, a civil contempt order awarding almost $1.3 million in lost royalties, $353,000+ in attorney's fees, and another $10,000 per day until you file reports that the district court ordered but that you decided -- in your infinite wisdom not to file...
People v. Meneses (Cal. Ct. App. - Aug. 19, 2008)
Posted on August 20, 2008Ah, the exciting life of a capper.
Pelton-Shepherd Industries v. Delta Packaging Products (Cal. Ct. App. - Aug. 19, 2008)
Posted on August 19, 2008Here's a wonderful review of what can go wrong in discovery. Especially if you leave it until right before trial. As well as a fairly comprehensive review of the relevant provisions and deadlines for motions to compel.You'll also view some fairly strong language by Justice Robie regarding the conduct of Judge Saiers (in Orange County) as well as counsel for the parties below...
Oltman v. Holland America (9th Cir. - Aug. 19, 2008)
Posted on August 19, 2008Want to see the Ninth Circuit go out of its way to be nice to a civil litigant in order to prevent inequity? Then check this out. Especially Section B and -- in particular -- footnote 4.I happen to agree with Judge Clifton's resolution. But I'm also certain that not every judge would be similarly inclined to adopt such a favorable approach...
U.S. v. Jaeger (9th Cir. - Aug. 18, 2008)
Posted on August 18, 2008I agree with Judge Graber in this one. It's one thing for a judge to threaten a witness and intimidate him or her into not testifying. It's quite another to do what Judge Molloy (up in Montana) does here. Which I took as trying -- honestly and sincerely -- to protect and look out for the best interests of the witness...
U.S. v. Park (9th Cir. - Aug. 11, 2008)
Posted on August 18, 2008Hmmm. At first, Judge McKeown had me totally convinced she was right. But then I thought: "Wait a minute, I'm not so sure." And that's still where I am.Let me first just totally agree with Judge McKeown on the central point. Or at least on the point as Justice McKeown articulates it...
Lockerby v. Sierra (9th Cir. - Aug. 7, 2008)
Posted on August 15, 2008Judge Hawkins is correct. The defendant here should indeed get a discharge. Even a deliberate breach of contract -- here, of a routine settlement agreement -- doesn't constitute a willful tort.Nonetheless, anyone who's thinking of hiring Tucson, Arizona attorney Alexander L...
People v. Nelms (Cal. Ct. App. - Aug. 14, 2008)
Posted on August 14, 2008It's an unusual case in which a convicted defendant will want to abandon his appeal and yet the Court of Appeal will refuse to allow him to do so. But it happens. Even in non-death penalty cases.Can't think of an example. Here's one.
People v. Muniga and People v. Wallace (Cal. Supreme Ct. - Aug. 14, 2008)
Posted on August 14, 2008Two death penalty opinions from the California Supreme Court this morning. With striking similarities.Both involve a first-degree murder committed during a residential burglary. Both involve elderly women killed in their homes -- the first, Hazel Hamilton, was a 83-year old widow, and the second, Alma Franklin, was 73...
Christian Research Inst. v. Alnor (Cal. Ct. App. - Aug. 13, 2008)
Posted on August 13, 2008Imagine that you're a lawyer with, say, Ross Dixon & Bell. Hypothetically, of course, say you're Kevin Kieffer,Becki Kieffer, Jennifer Mathis, Jenece Solomon, or Michael Gower (full disclosure: Mike's a former student of mine). Or say you're Peter Eliasberg, who's with the ACLU Foundation of Southern California...
Winfred D. v. Michelin North America (Cal. Ct. App. - Aug. 8, 2008)
Posted on August 13, 2008Bigamy? I'm not even sure that's a crime anymore.But if you decide to introduce evidence of it to impeach the plaintiff in a closely-contested civil case, it nonetheless remains grounds for a reversal of the judgment in favor of the defendant.Lesson: When you ask the Court to introduce inflammatory evidence, be careful what you wish for.
D'Lil v. Best Western Encina Lodge (9th Cir. - Aug. 12, 2008)
Posted on August 12, 2008It's yet another case -- indeed, the second one today (the first one is here) -- involving a repeat ADA plaintiff. The district court thought that plaintiff wasn't credible. Neither do I.Whether the particular record here is clear enough to so find is a matter of dispute between the majority opinion (written by Judge Reinhardt) and the partial dissent (written by Judge Rymer), and I think that both positions in this regard are reasonable...
In Re James C. (Cal. Ct. App. - Aug. 11, 2008)
Posted on August 12, 2008Some good news, some bad news.Bad news first. Judge Francis Devaney -- down here in San Diego -- apparently has been applying a "consistent" policy in which he sentences juveniles in border cases to a year at Camp Barrett (a junvenile facility in Alpine) but suspending this sentence on the condition that the juvenile, as part of his probation, be banished from the United States...
People v. Hovarter (Cal. Supreme Ct. - Aug. 11, 2008)
Posted on August 11, 2008I rarely have substantial doubt about the guilt of a defendant sentenced to death. Most of the time, I'm pretty darn confident -- even if based solely on the description of the evidence on appeal -- that the defendant did it. Sure, there are exceptions, but they're definitely the exception rather than the rule...
Cachil Dehe Band v. State of California (9th Cir - Aug. 8, 2008)
Posted on August 11, 2008It's a case about Indian gaming. You represent the Indian tribe, and want more slot machines. You've lost in the district court, and now appeal to the Ninth Circuit. You're waiting for the panel to be announced just prior to oral argument. Who's your dream -- absolute dream -- draw?Right...
Jonathan L. v. Superior Court (Cal. Ct. App. - Aug. 8, 2008)
Posted on August 08, 2008You've got to give Justice Croskey credit. It's rare enough that the Court of Appeal admits that it made a mistake. It's even rarer to go out of your way to admit your mistake. But that's exactly what happens here.This is the homeschooling case, which I briefly discussed when it initially came out...
People v. Becerra (Cal. Ct. App. - Aug. 7, 2008)
Posted on August 08, 2008This is why I love reading the California Appellate Reporter. Because even if you go to Urban Dictionary or google the term "nose dipping," you'll still have utterly no clue as to what that phrase could possibly mean. But Justice Ikola knows. Check out page 4...
GEC Capital Corp. v. Future Media Productions (9th Cir. - Aug. 7, 2008)
Posted on August 07, 2008Sometimes you amend an opinion to respond to an argument in a petition for rehearing. Sometimes you amend to correct a factual error. And sometimes you amend to get your colleagues off your back.Back in July, Judge Trott wrote an opinion in an otherwise fairly routine bankruptcy case involving default interest...
McMillan v. Shadow Ridge at Oak Park (Cal. Ct. App. - Aug. 4, 2008)
Posted on August 07, 2008Please don't get me wrong, Justice Perren. I completely agree with you. You're totally right in this one. When a party in a civil action appears pro per, even with a "counsel on the side", there's no disqualification when the opposing party talks directly to the pro per litigant...
Garcia-Aguilar v. United States District Court (9th Cir. - Aug. 6, 2008)
Posted on August 06, 2008Not a good day for the U.S. Attorney's office down here in San Diego. Which gets called out by Chief Judge Kozinski for (1) doing a bad job, and then (2) trying to get out the consequences of this (alleged) malfeasance by convincing -- successfully, I might add -- three district court judges down here (Judges Burns, Benitez, and Collins) to refuse to accept the unconditional guilty pleas of various criminal defendants...
U.S. v. Flores-Villar (9th Cir. - Aug. 6, 2008)
Posted on August 06, 2008You're an illegal alien from Mexico. You've previously been convicted of importing marijuana. You're now convicted of being a deported alien found in the United States. Your best chance for reversal is to make a constitutional equal protection argument and assert that, on that basis, you get to become a U...
People v. Manning (Cal. Ct. App. - July 31, 2008)
Posted on August 06, 2008Think that admission of prior offenses doesn't matter? Think again.Without the admission of the evidence regarding the prior offense, there's no way that the defendant here gets found guilty beyond a reasonable doubt. But with the admission of the prior offense -- notwithstanding the fact that the prior was fairly dissimilar to the current charge (forcibly assaulting a co-worker versus allegedly groping a sedated patient eight years later) -- he definitely gets convicted.
People v. Diaz (Cal. Ct. App. - July 30, 2008)
Posted on August 05, 2008No opinions from the Ninth Circuit today. Guess they're all still sleeping off the Sun Valley conference. Plus no opinions from the California Court of Appeal yet either. Maybe they had a good time as well.Regardless, I can still give some good advice, derived (as always) from counsel received from the good pages of the Federal and California Reporter...
Twardowski v. American Airlines (9th Cir. - July 30, 2008)
Posted on August 05, 2008You know the panel thinks that this is a fairly easy case when (1) the opinion is per curiam; (2) the majority of the sections consist of a single paragraph, and (3) the caption takes up more pages than the opinion.
Ramirez v. Nelson (Cal. Supreme Ct. - Aug. 4, 2008)
Posted on August 04, 2008The Court of Appeal has to follow precedent. The California Supreme Court has a little more flexibility. And, as a result, often does a little more "justice" than the lower courts.So, for example, Justice Gilbert, reading a statute, feels contrained to say that a homeowner might well be liable per se for having a contractor electrocute himself when his polesaw hits an overhead high voltage line...
People v. Sutton (Cal. Ct. App. - July 30, 2008)
Posted on August 04, 2008The holding here is itself important -- basically, that even if the defendant doesn't waive time (i.e., the right to be brought to trial within 60 days), appointed counsel's engagement in another trial constitutes "good cause" to continue the trial beyond that statutory period...
People v. Phomphakdy (Cal. Ct. App. - July 31, 2008)
Posted on August 01, 2008The theme of the past 36 hours of my life has been: "Drugs, drugs, and more drugs!!" And, no, I'm not talking about personally. I mean professionally.Yesterday the Court of Appeal (correctly) affirmed the dismissal of a lawsuit brought by San Diego County to the identification card provisions of the Medical Marijuana Program Act, and I briefly talked about that decision here...
In Re Matthew A. (Cal. Ct. App. - July 28, 2008)
Posted on August 01, 2008"You're like a little kid. We tell you and tell you and tell you, but you never seem to listen. Time to ground you to your room, I guess."Or, as Justice Flier -- the mother of three children and several grandchildren herself -- puts it here, "Courts utilizing this technique may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious...
People v. Windus (Cal. Ct. App. - July 30, 2008)
Posted on July 31, 2008You've got to love a doctor who'll not only prescribe marijuana for you, but who, at your trial, will testify that using three to six pounds of marijuana every month would be appropriate for your condition.I mean, I'm no expert in the area. But three to six pounds per month?! Couldn't you keep, like, an army stoned with so much pot?So those of you in Rodondo Beach who're looking for some extra "compassion" pursuant to the Compassionate Use Act might want to look up Dr...
County of San Diego v. San Diego NORML (Cal. Ct. App. - July 31, 2008)
Posted on July 31, 2008In a decision that should surprise no one, the Court of Appeal affirmed today the trial court's dismissal of the challenge brought by San Diego and Riverside County to California's Medical Marijuana Program Act. So you can still get your identification card...
In Re Marriage of Bardzik (Cal. Ct. App. - July 25, 2008)
Posted on July 31, 2008Sometimes writing in a fun, informal fashion doesn't work. But my strong sense is that the opposite is true here.For those of us who don't know all that much about family law -- and I'm clearly in that group -- it's a wonderful opinion. Flowing. Informative...
Dougherty v. Haag (Cal. Ct. App. - July 28, 2008)
Posted on July 31, 2008I can promise you this: Paul Dougherty isn't a big fan of Justice Sills. At least after this.Dougherty is a forensics expert in firearms who was censured by the Association of Firearm and Toolmark Examiners (AFTE) for giving allegedly absurd expert testimony in a civil case...
People v. Osorio (Cal. Ct. App. - July 30, 2008)
Posted on July 30, 2008You've been found guilty of murder, arson, robbery, and burglary. Among the people you murdered was a 34-year old traffic officer for the police department. And you belong to a gang, and your nickname in this not-easily-impressed group is -- tellingly -- "Criminal"...
People v. Gonzales (Cal. Ct. App. - July 30, 2008)
Posted on July 30, 2008When you're going to use your first four peremptory challenges to strike Hispanic jurors, at a minimum, you've got to be more subtle about it. Sure, maybe you can get away with striking the guy with the baggy pants. But, trust me, that guy to whom you didn't ask any questions, or develop any record about other than the fact that he (like at least one other juror you didn't strike) also speaks Spanish; well, that ain't gonna cut it as a race-neutral explanation...
Klein v. United States (9th Cir. - July 30, 2008)
Posted on July 30, 2008When I started reading this case, which certifies a question to the California Supreme Court, I had an unusual thought. Unusual for me, anyway. My initial reaction was: "Hey, I love certification as much as the next guy, and generally even more. I typically like the modesty and comity and restraint that it entails...
City of Hollister v. Monterey Ins. Co. (Cal. Ct. App. - 29, 2008)
Posted on July 29, 2008Thinking about purchasing a policy with Monterey Insurance Company, or have to deal with them on a claim? Then take a look at this.Rarely, in my view, does an insurance company look this bad. Justice Rushing gives excruciating details about how Monterey Insurance -- and one of its adjusters, Jack Boczar -- handled an insurance claim filed by the City of Hollister when one of its old buildings at the Hollister airport caught fire...
Bandana Trading Co. v. Quality Infusion Care (Cal. Ct. App. - July 21, 2008)
Posted on July 29, 2008Let me give a tiny little lesson on propriety. If you're a juror, don't aggressively nod -- either affirmatively or negatively -- during counsel's closing argument. And for God's sake, whatever else you do or don't do, don't start clapping during his or her closing...
Moore v. Czerniak (9th Cir. - July 28, 2008)
Posted on July 28, 2008As they say at the outset of Celebrity Deathmatch: "Let's get it on." And that's precisely what the respective authors do here. In a wicked smackdown that's virtually without parallel.I naturally hesitate to recommend to anyone to read through a series of opinions in a single case that, in total, span over a hundred single-spaced pages...
People v. Cruz (Cal. Supreme Ct. - July 24, 2008)
Posted on July 25, 2008Defendant's criminal history consists exclusively of being drunk in public. And in 1991, when he is again arrested for being drunk in public, in the midst of being transported to the main county jail (while handcuffed and still drunk), he inexplicably reaches under the front seat of the patrol car, obtains the fanny pack of the officer who's driving him to jail, grabs the backup pistol that is located therein, and shoots the officer in the head through the plexiglass, killing him...
People v. Evans (Cal. Supreme Ct. - July 24, 2008)
Posted on July 24, 2008Throughout the history of Anglo-American jurisprudence, for almost half a millennium, a defendant has had the right to allocute after being convicted of a crime. To express sorrow for what he's done. To explain his actions. To beg for mercy. To try to place a human face on things before the court pronounces sentence...
Lopez v. Imperial County Sheriff's Dept. (Cal. Ct. App. - July 22, 2008)
Posted on July 24, 2008Ties go to the runner in baseball. Ties go to the House of Representatives in elections. Ties go to the respondent in the United States Supreme Court.But ties in Imperial County -- at least in the Employment Appeals Board -- go to the bureaucratic equivalent of overtime...
In Re P.C. (Cal. Ct. App. - June 23, 2008)
Posted on July 23, 2008Tell me that there's an obvious solution to this problem. Please.A homeless mother who's trying hard and seems to sincerely care about her children. Children who remain strongly attached to their mother, but have also bonded with a family that's eager to adopt them...
People v. Monjaras (Cal. Ct. App. - July 21, 2008)
Posted on July 23, 2008It's as good a reason as any -- or at least good enough -- to publish an opinion merely to put to rest meritless arguments that nonetheless seem to be repeatedly raised in the Court of AppealOr, as Justice Scotland puts it so artfully here: "Our point in publishing this opinion is to say in no uncertain terms that a moribund claim like that raised by defendant has breathed its last breath...
Los Angeles County Prof. Peace Officers' Ass'n v. County of Los Angeles (Cal. Ct. App. - July 22, 2008)
Posted on July 22, 2008Sometimes you can summarize an opinion very succinctly. Using only three or four sentences of the opinion to get the point fairly clearly.That's the case here. About which you need know very little more than this:"Labor Code section 4850 provides that when a public safety officer (like each plaintiff here) "is disabled, whether temporarily or permanently, by injury or illness arising out of and in the course of his or her duties, he or she shall become entitled, ...
Bonanno v. Connolly (Cal. Ct. App. - July 22, 2008)
Posted on July 22, 2008If you've got a wife, a girlfriend, and an adult daughter from a prior marriage, don't die intestate. Because if you do, your estranged wife -- from whom you've been separated for 12 years -- will file a claim for a huge chunk of your estate, your girlfriend will file a palimony and other claims, and your daughter will seek her share as well...
Garcia v. Paramount Citrus Ass'n (Cal. Ct. App. - July 21, 2008)
Posted on July 22, 2008"Dude, I authored a kickin' opinion when this thing first came up. Then, after you lost, you let me know that one of my colleagues/panel members should have been disqualified. So be it. We replaced the disqualified justice with another one and reheard the thing...
Green v. LaMarque (9th Cir. - July 17, 2008)
Posted on July 21, 2008You can strike one African-American juror from the pool. Or two. Or even three. But when you strike all six of the African-Americans in the pool -- and when the defendant is African-American as well -- well, that's raises some red flags. At least in some circles...
Simmons v. Ghaderi (Cal. Supreme Ct. - July 21, 2008)
Posted on July 21, 2008Congratulations to (insert any one of a number of applicable prestigeous appellations here: Judge, Secretary, Justice, Dr., etc.) Shirley Hufstedler on winning this one. Unanimously, no less.Given that I previously discussed this case in the Court of Appeal, I'd typically link to my prior discussion -- in which I noted, inter alia, that I thought this was a hard case, and one that (for that reason alone) was a prime candidate for a grant of review...
U.S. v. Gonzalez (9th Cir. - July 18, 2008)
Posted on July 18, 2008We take it seriously if you use your position of trust and authority as a police officer to sexually assault women.As in 30 years in the slammer seriously.The last paragraph of the opinion --which affirms the defendant's conviction -- is classic Judge Noonan...
Tekle v. Mukasey (9th Cir. - July 18, 2008)
Posted on July 18, 2008Nice day for me today. Woke up early and went surfing. Finishing a law review article this morning and over lunchtime. Heading out to court for a hearing this afternoon. Going to eat a big steak with the wife and kids for dinner. Not a bad way to spend one's 40-something birthday...
Herrera v. Hernandez (Cal. Ct. App. - July 17, 2008)
Posted on July 17, 2008I understand where Justice Mihara is coming from in this one. Much of what the appellant says is clearly wrong; for example, the claim that reversal is required because the juror obviously deliberately lied during voir dire. And the equities seem clearly to favor upholding the judgment below...
Berglund v. Arthroscopic & Laser Surgery Center (Cal. Supreme Ct. - July 17, 2008)
Posted on July 17, 2008Justice Kennard (and the rest of the California Supreme Court) couldn't be more right. Arbitrators have the statutory power to compel discovery by nonparties. And nonparties should be required to argue first to the arbitrator -- primarily for efficiency reasons -- that they shouldn't be compelled to produce the discovery...
U.S. v. Miranda-Lopez (9th Cir. - July 17, 2008)
Posted on July 17, 2008Want to see an opinion that's a great example of statutory interpretation? In which both the majority and dissent write excellent opinions, each of which is eminently reasonable? And an opinion in which the rule of lenity isn't merely addressed as a throwaway, but rather is treated seriously?Here it is...
People v. Endacott (Cal. Ct. App. - July 16, 2008)
Posted on July 16, 2008This is another one of those cases -- this time, from the California Court of Appeal -- holding that it's totally okay for customs to look through the contents of your laptop at the border (here, at LAX) even without any reasonable suspicion of a crime...
Howell v. Polk (9th Cir. - July 16, 2008)
Posted on July 16, 2008You're right, of course. Yes, it may well be unreasonable for the police to wait only five seconds or so after knocking before starting to bash your door in. Especially when it's 6:30 a.m. Not many people are going to get to the door within five seconds at 6:30 in the morning...
Conrad v. Ace Property & Cas. Co. (9th Cir. - July 14, 2008)
Posted on July 16, 2008"We consider whether the standard Adjusted Gross Revenue Insurance Policy, a policy which provides crop revenue insurance pursuant to the Federal Crop Insurance Act, incorporates and mandates the claim adjustment procedures set forth in the Federal Crop Insurance Corporation?s Adjusted Gross Revenue Standards Handbook...
Styles v. Mumbert (Cal. Ct. App. - July 15, 2008)
Posted on July 15, 2008It's bad enough to be defending a legal malpractice claim. It's worse when your alleged malpractice allegedly resulted in a $730,466 default judgment being entered against your client. Especially when you've "admitted on the record that [you] did not have time to devote to the case...
Sunset Skyranch Pilots Ass'n v. County of Sacramento (Cal. Ct. App. - July 2, 2008)
Posted on July 15, 2008When Justice Sims presented the central question in this case -- whether the denial of a request to renew a conditional use permit is a "project" that requires a study under the California Environmental Quality Act -- and answered it in the affirmative (hence reversing the trial court), I thought he was wrong...
Redding v. Safford Unified School Dist. (9th Cir. - July 11, 2008)
Posted on July 14, 2008It's a Section 1983 case against a school district that strip searched a 13-year old girl in a futile attempt to find a pill of prescription-strength ibuprofen. The Ninth Circuit takes the case en banc after the panel issues a majority opinion authored by a Bush II appointee (Judge Clifton) that finds no constitutional violation over the dissent of a Clinton appointee (Judge Thomas)...
Berger v. City of Seattle (9th Cir. - July 14, 2008)
Posted on July 14, 2008I hate to see really good opinions (and dissents) go away after a case gets taken en banc. Especially in this case, which I briefly discussed here.That said, (1) I'm not at all surprised that this one got taken en banc today-- it's an important (and close) issue, and (2) I have a keen sense that you'll see these same arguments -- and, assuming an appropriate draw, perhaps virtually the same opinions -- reappear after the en banc process concludes...
Classic Media v. Mewborn (9th Cir. - July 11, 2008)
Posted on July 11, 2008This was one of the sleepier weeks in the Ninth Circuit and California Court of Appeal. There were cases, to be sure. Including some interesting ones. But the drama wasn't there as much.Judge Wardlaw ends the week with a case that probably falls along those same lines...
Schwartz v. Lawson (Cal. Ct. App. - July 9, 2008)
Posted on July 10, 2008What a day.For me, mind you. By contrast, for the California Court of Appeal, it was largely error-correction day. Check out, for example, the following two orders, both of which came out today and both of which were issued by Division Three of the Second District...
People v. Parson (Cal. Supreme Ct. - July 10, 2008)
Posted on July 10, 2008It's not the usual death penalty case where the defendant forthrightly admits to killing the victim. But it's also not surprising that's the case here, since the evidence against the defendant was stunningly overwhelming.Sound strategy, I guess. Didn't work though...
Brazil Quality Stones v. Chertoff (9th Cir. - July 10, 2008)
Posted on July 10, 2008You'll be happy to know that it's not exclusively poor people and criminals who are deported. So there's an equality there, I guess.
In Re A.B. (Cal. Ct. App. - July 8, 2008)
Posted on July 09, 2008"Angelique has a lengthy history of mental illness and substance abuse. Before she and Leonard moved to California they lived in the State of Washington, where child protective services received approximately 600 referrals on her [!] and she lost custody of two daughters...
In Re Marriage of Falcone & Frye (Cal. Ct. App. - July 8, 2008)
Posted on July 08, 2008Justice Premo begins this opinion with the following line: "This is one in a series of 10 appeals or writ petitions filed in this court by Kathey Fyke, the respondent in a dissolution matter initiated by her former husband Richard Falcone in 2003." You can figure out where it's going from there...
U.S. v. Fuller (9th Cir. - July 8, 2008)
Posted on July 08, 2008Sure, college students sometimes have fake identification (e.g., to buy alcohol). And sometimes really little kids make up "badges" and pretend to be a sheriff or the like. But when you get, say, in your 30s, it's time to stop those little games. Because, really, what's the point?So why, for example, would someone create a fake badge for the (alleged) "Special Response Unit" of the State Department? Especially when the only thing you seem to be using it for is to drop your gun off at a Customs Office locker before you head up to Canada...
Molski v. Arciero Wine Group (Cal. Ct. App. - July 7, 2008)
Posted on July 07, 2008It doesn't bode well for you when the very first paragraph of the Court of Appeal's factual statement includes the following two sentences: "[Plaintiff] has filed in excess of 400 such actions in state and federal court, and has been declared a vexatious litigant in both jurisdictions...
People v. Towne (Cal. Supreme Ct. - June 26, 2008)
Posted on July 07, 2008Don't pick up male prostitutes in Hollywood.That said, regardless how you spent your three day weekend, I hope it was fun, and filled with family, fireworks, friends, and food. And any other applicable word along those lines.Welcome back.
People v. Johnson (Cal. Ct. App. - July 3, 2008)
Posted on July 03, 2008It's the typical story. One that appears in the pages of the California Appellate Reporter many, many times. A husband and wife are estranged, and have a seriously deficient relationship. The husband allegedly beats and injures the wife, and he's forced to move out of the family home...
Hearns v. San Bernadino Police Dep't (9th Cir. - July 1, 2008)
Posted on July 03, 2008I can't think of a better case to read regarding the requirement of Rule 8(a) that pleadings contain a "short and plain" statement of the claim than this one. It concerns a clear, but verbose, 81-page complaint. It involves a district court who warned the plaintiff (and her counsel) that the complaint was too long, and ordered a new complaint to be filed, to which the plaintiffs essentially responded by merely changing the size of the margins so the same complaint only took up 68 pages...
State of Alaska v. EEOC (9th Cir. - July 3, 2008)
Posted on July 03, 2008What did I say back in November, when the panel's opinion came out? "Don't be surprised -- at all -- if this one's taken en banc."What did the Ninth Circuit do today? Took the case en banc.I'll submit my application to the Psychic Friends Network posthaste...
People v. Holloway (Cal. Ct. App. - June 26, 2008)
Posted on July 03, 2008What a nightmare. For everyone -- everyone -- involved.Justice Kane correctly decides the merits, and writes a good opinion to boot. But even more than the legal analysis, the underlying facts -- in what would is facially just a simple DUI with injury case -- are bizarre and depressing...
The Lands Council v. McNair (9th Cir. - July 2, 2008)
Posted on July 02, 2008When it's an environmental case, and you're on the side of the environment, you're pretty happy to see Judges Reinhardt and Ferguson drawn for your panel. Which is exactly what transpired last year, and the result was a reversal of the district court, which had refused to enter a preliminary injunction on behalf of the plaintiffs...
U.S. v. Davis (9th Cir. - June 30, 2008)
Posted on July 02, 2008I'm just a poor boy who grew up attending public schools in a semi-rural community in Virginia. So I don't know a lot of fancy words. Or even, often, how to spell the easier ones.As a result, my ears perked up when I got to the end of the first paragraph of this opinion by Judge Randy Smith...
SEC v. Talbot (9th Cir. - June 30, 2008)
Posted on July 02, 2008As a stylistic matter, I'd have written this opinion a little bit differently. And would have added a bit more on the doctrinal side as well.Nonetheless, I think that Judge Wardlaw is exactly right that a defendant can be found liable for insider trading even if s/he is a relative outsider to the transaction; for example, as here, was on the Board of a company who was informed of a potential acquisition because the company was a significant investor whose approval would have been needed for the transaction...
Donell v. Kowell (9th Cir. - July 1, 2008)
Posted on July 01, 2008This is an outstanding -- simply outstanding -- opinion by Judge Bybee. It's clear. It's incredibly well-written. It exhaustively analyzes the various competing arguments. It's entirely persuasive. And it achieves justice in a setting in which justice is indeed difficult to achieve...
County of San Diego v. State of California (Cal. Ct. App. - July 1, 2008)
Posted on July 01, 2008San Diego v. California. San Diego wants the money that the State of California is constitutionally obliged to pay it for unfunded mandates. So it files suit. Alongside Orange County. The trial judge (Judge Bloom, down here in San Diego) agrees with plaintiffs, and awards San Diego and Orange County over $40 million and $70 million, respectively...
People v. Salcido (Cal. Supreme Ct. - June 30, 2008)
Posted on July 01, 2008Here, in incredible brevity, are the relevant crimes:"The evidence established that in the early morning hours of April 14, 1989, defendant drove his three young daughters, Sofia, Carmina, and Theresa to an isolated gulch used as a dumping site, where he cut their throats and left them, resulting in the deaths of Sofia and Theresa...
Stathoulis v. City of Montebello (Cal. Ct. App. - June 30, 2008)
Posted on June 30, 2008We know that it's possible to sue a City if you trip on a crack in the sidewalk. But can you sue if you trip on a similarly-sized pothole in the road?Yep.Read the whole thing if you want to learn the common law about sidewalk and (now, at least) tiny-pothole tripping...
Mardardo F. v. Superior Court (Cal. Ct. App. - June 30, 2008)
Posted on June 30, 2008It's a depressing reflection of the world in which we live when the Court of Appeal is called upon to decide whether a statute that denies family reunification services when "a parent [] of the child has caused the death of another child through abuse or neglect" applies to a 27-year old father who raped and murdered a 13-year old girl when he was 15...
Brown v. Uttecht (9th Cir. - June 27, 2008)
Posted on June 27, 2008The California Court of Appeal is having a server problem today, so no opinions from them. But the Ninth Circuit keeps cranking them out. Including this one. It's a death penalty case post-remand from the Supreme Court. A case in which the panel originally granted habeas relief -- though beginning the opinion with the memorable sentence "Cal Brown is not a nice man...
State Farm v. Superior Court (Cal. Ct. App. - June 26, 2008)
Posted on June 27, 2008Justice Aldrich begins this opinion by saying: "If an insured throws someone into a swimming pool intending to get the other person wet, but by mistake does not throw hard enough and so the latter lands on the pool?s cement step and suffers injuries, is the incident an 'accident' within the meaning of insurance law?" He then adds "We conclude it is...
People v. Page (Cal. Supreme Ct. - June 26, 2008)
Posted on June 26, 2008Tahisha Clay, a six-year old girl, and her nine-year old brother Stefan were tossing a ball back and forth to each other in the apartment complex in which they lived when the ball rolled down a hill. When Tahisha went down the hill to retrive the ball, her mother called for her and Stefan to go back into the apartment, and Stefan did so...
Guidiville Band v. NGV Gaming, Inc. (9th Cir. - June 26, 2008)
Posted on June 26, 2008You recall, I'm confident, the classic line from Bill Clinton's deposition during the Monica Lewinski days: "It depends upon what the meaning of the word 'is' is." A line that was -- perhaps entirely justifiably -- roundly mocked as laughably absurd...
Monroy v. City of Los Angeles (Cal. Ct. App. - June 25, 2008)
Posted on June 26, 2008It's rare to read an opinion regarding a trial in a routine civil case -- here, an automobile accident involving the LAPD -- in which (1) the Court of Appeal reverses the jury's finding of no liability on multiple grounds, all of which are fairly pedestrian (application of requests for admission, limitation of cross-examination, whether a percipient witness deposition was admissible because the witness was unavailable, etc...
Morgan v. Mukasey (9th Cir. - June 25, 2008)
Posted on June 25, 2008You can get Judge Noonan angry. And, like Bruce Banner, you won't like him when he's angry.Here's proof.
Espinosa v. United Student Aid Funds, Inc. (9th Cir. - June 24, 2008)
Posted on June 25, 2008Looking for a good law review article? Either because you're a student or want to crank out some publications to hopefully get a cushy academic job? Interested in the crushingly boring (but important) area of bankruptcy law as applied to civil procedure? Or merely looking to have impact on a legal issue on which the Ninth Circuit is the lone holdout and will soon -- perhaps very soon -- revisit the issue, perhaps with a subsequant foray into the Supreme Court?Then here's a good topic...
Duncan v. Ornoski (9th Cir. - June 24, 2008)
Posted on June 24, 2008It's a death penalty habeas case. Judge Reinhardt writes the opinion.Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below ...
California Nat'l Bank v. Woodbridge Plaza LLC (Cal. Ct. App. - June 20, 2008)
Posted on June 24, 2008Judge Rylaarsdam writes a completely persuasive resolution. I agree with pretty much everything substantive he says.Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least)...
In Re Rothwell (Cal. Ct. App. - June 23, 2008)
Posted on June 23, 2008It's possible to send heroin to a prisoner on a postcard?! Yes, it is.Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.
People v. Roberts (Cal. Ct. App. - June 16, 2008)
Posted on June 23, 2008It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive...
U.S. v. Gonzalez (9th Cir. - June 19, 2008)
Posted on June 23, 2008Sure, defendants routinely claim that police officers steal money or drugs from them after they bust them. But it never really happens, right? I mean, come on. It's just absurd to think that a police officer would do so.Unless, of course, it's caught on videotape.
Roberts v. Assurance Co. (Cal. Ct. App. - June 20, 2008)
Posted on June 20, 2008"When you put my name in print, I don't care what you say. Just spell it correctly."A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.
Leppind v. Mukasey (9th Cir. - June 20, 2008)
Posted on June 20, 2008Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.But usually you write a dissent in response to something contrary that was written by the majority...
Barona Band v. Yee (9th Cir. - June 18, 2008)
Posted on June 19, 2008Kudos to Judge Wardlaw. For writing an opinion that not only makes sense on the merits (though I admit that I totally see the other side as well), but also contains a funny line with the perfect level of subtlety. Not too much, but definitely not too little...
People v. Wilkinson (Cal. Ct. App. - June 18, 2008)
Posted on June 18, 2008Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much...
Long v. Century Ins. Co. (Cal. Ct. App. - June 17, 2008)
Posted on June 17, 2008It's rarely a good sign when the Court of Appeal quotes your brief in its opinion. Because usually that means that they're just teeing your argument up to take a huge whack at it.As here.Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B...
Gribben v. UPS (9th Cir. - June 16, 2008)
Posted on June 16, 2008Maybe it's just because I've been on the East Coast -- sweltering in heat and humidity -- for the past week. It makes certainly makes me sympathetic. But regardless of the reason, even on the merits, I was interested to learn from this opinion by Judge Thompson that the ADA can require an employer to provide air conditioning in the vehicle that its employee drives...
Cadle Company II v. Fiscus (Cal. Ct. App. - June 12, 2008)
Posted on June 13, 2008It's a hot, steamy night in North Carolina. (Yeah, I know, sounds like the opening sentence of a pulp romance novel.) And I had to walk a huge distance until I could find a house that allowed me to pimp their wireless access. But neither rain nor sleet, as they say...
People v. Ramos (Cal. Ct. App. - June 9, 2008)
Posted on June 12, 2008I'm in North Carolina today. But the California Court of Appeal has a simple message that's universal:Do blow, kill your mother.Presumably not invariably.
Derek Andrew, Inc. v. Poof Apparel Corp. (9th Cir. - June 11, 2008)
Posted on June 11, 2008Plaintiff is an apparel company named Derek Andrew, Inc. that sells a high-end (read: expensive) clothing line called "Twisted Heart" at Nordstrom, Saks Fifth Avenue, and Neiman Marcus. Defendant, by contrast, is a competing apparel company named (of all things) "Poof Apparel" that sells low-end (read: cheap) clothing with a label nearly identical to the "Twisted Heart" label at places like T...
In Re Attorney Discipline (9th Cir. - June 10, 2008)
Posted on June 11, 2008Alex: What, I'm a huge slouch?!Just kidding. Rory's an outstanding choice.POSTSCRIPT: Sorry to read about the huge blowup today on that other thing, A. Not great timing.
People v. Manchel (Cal. Ct. App. - June 10, 2008)
Posted on June 10, 2008I thought that Justice Zelon penned an extremely well-written opinion in this case. It flows, it's breezy, and it's persuasive. I wish that law review articles -- or at least the ones I write -- could be similarly smooth.On the merits, she does a great job distinguishing the principal authority on which the defendant relies...
Liberty Mutual Fire Ins. Co. v. LoL Administrators, Inc. (Cal. Ct. App. - June 10, 2008)
Posted on June 10, 2008Form interrogatories. Sure, it's fun to respond with meaningless answers. But do it too much and you may face terminating sanctions. And the Court of Appeal will affirm.
Gueyffier v. Ann Summers, Ltd. (Cal. Supreme Ct. - June 9, 2008)
Posted on June 09, 2008A British retailer of lingerie and sex toys. A French citizen who opens a franchise in the Beverly Center shopping mall. Thrown tomatoes. Arbitration. The California Supreme Court. "What Lies Beneath".It's a titillating drama that, sadly, isn't at all exciting as a judicial opinion...
ISKC v. City of Los Angeles (9th Cir. - June 9, 2008)
Posted on June 09, 2008The Ninth Circuit wants to know if LAX is a public forum under the California Constitution. So asks the California Supreme Court to let it know. Which makes sense.I mention the case primarily becuase it involves the Krishnas soliciting funds at LAX...
Franco v. Dow Chemical Co. (9th Cir. - June 9, 2008)
Posted on June 09, 2008They take attorney discipline very seriously on the Ninth Circuit. Especially if you're dealing with Chief Judge Kozinski and Judges Reinhardt, Berzon and Tashima.Don't believe me? Take a look at this. As well as (if you have time) this.The attorneys named in the caption, by the way, are no slouches...
TJX Companies v. Superior Court (Cal. Ct. App. - June 6, 2008)
Posted on June 06, 2008Oops. There are a couple of very minor problems. The most central of which is that he's actually a she.And, at least to my knowledge, always has been.Amended accordingly.
People v. Carrasco (Cal. Ct. App. - June 6, 2008)
Posted on June 06, 2008Two things.First, doesn't it seem strange for someone to walk into a sheriff's station and ask if anyone has change for a dollar? Aren't stores and such a more likely candidate for this type of function? And isn't it even stranger to then follow up the resulting silence by singling out a particular deputy sheriff and asking "Do you have change, bitch?" Not really a smart thing to say...
People v. Mauch (Cal. Ct. App. - June 3, 2008)
Posted on June 05, 2008I can reduce the holding of this opinion to a single sentence. Albeit one that only criminal lawyers in California -- or those cognizant of this field -- would find interesting, or (potentially) even understand:If it ain't a wobbler, or at least a stealth wobbler, you can't knock it down to a misdemeanor...
People v. Laborde (Cal. Ct. App. - June 4, 2008)
Posted on June 04, 2008Don't take drugs on a cruise. Especially if you've got a criminal record. Because, if the feel like it, it's a routine border search when you return. And the police just so happen to target people with criminal -- especially drug -- records for "random" suspicionless searches of their cabin...
U.S. v. Giberson (9th Cir. - May 30, 2008)
Posted on June 04, 2008I agree with Judge Wallace.They validly stopped you because your plates expired. At which point they saw your false identification, which properly subjected you to arrest. At which point they validly searched you incident to the arrest and discovered evidence that you were evading your child support allegations...
Ferguson v. Coregis Ins. Co. (9th Cir. - June 3, 2008)
Posted on June 03, 2008It's fun to read an opinion in which a particular sentence or analogy appears in its midst totally from left field. Like here.The case involves insurance coverage, and the question revolves around the appropriate coverage amount. The policyholder says it's $2,000,000, the amount listed on the declarations page...
Chen v. Mukaskey (9th Cir. - June 3, 2008)
Posted on June 03, 2008Sure, the panel remands this case back to the BIA to make some findings. But the lesson is clear:Don't lie on your asylum application. And, if you do, definitely don't admit to lying. Continuing to lie is a much, much better strategy.
People v. Masotti (Cal. Ct. App. - May 28, 2008)
Posted on June 02, 2008Not much from the Ninth Circuit and California Court of Appeal today. Or at least not much that I'm desperately itching to talk about. A couple of opinions by both; we'll see what the late afternoon brings (if anything) from the latter.By contrast, here's an opinion from a couple of days ago about which I definitely had a reaction...
People v. Jackson (Cal. Ct. App. - May 28, 2008)
Posted on June 02, 2008You might well be troubled by cold-hit DNA cases, as well as peremptory challenges suspiciously directed towards a particular gender or racial group. I know I am.Nonetheless, I think that Justice Cantil-Sakauye not only is entirely correct in this one, and that defendant's conviction was rightly upheld, but that the underlying case in the trial court is a good example of what should happen in these types of cases...
U.S. v. Hinkson (9th Cir. - May 30, 2008)
Posted on May 30, 2008Whoa, Nelly.(1) It's the exceptional Ninth Circuit case that runs, like this one, over 90 single-spaced pages. It's even rarer for the author of the majority opinion to apologize (!) for such prolixity. See Page 6142 ("We apologize to the reader in advance for the length of the discussion...
Arteaga v. Brink's Inc. (Cal. Ct. App. - May 28, 2008)
Posted on May 30, 2008Your effort to manufacture a FEHA claim by disclosing alleged ongoing physical injuries after you knew that your employer had begun an internal investigation into massive money shortages on your watch and days before you were fired will not -- and did not -- succeed, Carlos Arteaga...
In Re Gong & Kwong (Cal. Ct. App. - May 29, 2008)
Posted on May 29, 2008"Didn't like our prior published opinion, which dismissed your appeal as frivolous, relentlessly slammed you and your appellate counsel, and imposed a healthy dose of sanctions payable both to respondent and to the Clerk? I'm not surprised. Want a rehearing? Sure...
California School Employees Ass'n v. Bonita Unified School Dist. (Cal. Ct. App. - May 28, 2008)
Posted on May 29, 2008The Bonita School district wanted to fire Donald Roberts for nine "causes" and twenty-four "reasons" under the Education Code. As Justice Mallano explains in affirming Roberts' termination:The ?causes? included incompetence, dishonesty, insubordination, immoral conduct, evident unfitness for service, absent without authority, and violation of school laws...
People v. New (Cal. Ct. App. - May 28, 2008)
Posted on May 28, 2008Just because you got away with shooting your first wife in the head while she slept doesn't mean that you're going to get away with shooting your third wife in the head while she sleeps. Yeah, the San Bernadino police might have been convinced that the first killing was an accident...
San Joaquin County Dep't Child Support Svcs v. Winn (Cal. Ct. App. - May 27, 2008)
Posted on May 28, 2008A Hegelian dialectic rarely expressly appears in the pages of the California Appellate Report. And I can't in all honesty say that I've reached an appropriate synthesis on the following topic that's worthy of sharing with the world.But let me nonetheless express my own personal yin and yang about the following opinion by Justice Robie...
Azure Ltd. v. I-Flow Corp. (Cal. Ct. App. - May 27, 2008)
Posted on May 27, 2008When you know that an opinion is likely to be reviewed by your boss -- e.g., to have review granted by the California Supreme Court -- there's a strong tendency to write an expansive missive on the subject. After all, you want to put your best foot forward...
U.S. v. Fernandez (9th Cir. - May 27, 2008)
Posted on May 27, 2008Sometimes they make it easy for you. So easy that you only have to read the first sentence of the opinion to know not only the question presented, but also its unstated -- but crystal clear -- resolution by the court.So, for example, when the first paragraph of the opinion contains a single sentence, and that sentence reads: "We must decide whether evidence obtained from an authorized wiretap investigation must be suppressed where the government continued to intercept a named target?s conversations despite his adoption of a new alias," it's far from tough to figure out what the answer is...
In Re Carlsson (Cal. Ct. App. - May 23, 2008)
Posted on May 23, 2008"This may come as a shock to you, Judge Peter McBrien (up in Sacramento County). But you can't walk out in the middle of a trial -- literally -- and decide the case on whatever evidence happened to have been already presented. I don't care how busy you are...
People v. Martinez (Cal. Ct. App. - April 1, 2008)
Posted on May 23, 2008Just be glad I wasn't your judge, Paul Martinez. Because based upon what I've read here, I wouldn't have limited your sentence to probation. You'd have done time.Consider yourself fortunate.
U.S. v. Crandall (9th Cir. - May 13, 2008)
Posted on May 22, 2008I'm at the federal penitentiary in lovely Fort Dix, New Jersey today -- for hours rather than a judicially-established number of months, fortunately -- but should be able to bop my head in from time to time to catch up with whatever happens today. In the meantime, let's do what we can to keep our loyal readers out of similarly-situated institutions...
Witt v. Department of the Air Force (9th Cir. - May 21, 2008)
Posted on May 21, 2008It's been a good couple of weeks for gays and lesbians in California and the Ninth Circuit. First gay marriage in California. And today the Ninth Circuit holds that heightened scrutiny -- not traditional rational basis -- is the appropriate level of scrutiny for a challenge to the military's continuing efforts to discharge practicing homosexuals...
Myerchin v. Family Benefits, Inc. (Cal. Ct. App. - May 20, 2008)
Posted on May 20, 2008You can't have your cake and eat it too.Nor, as Justice Bedsworth holds here, may you keep (and spend) the money you received in settlement and yet refuse to dismiss your lawsuit as agreed.Exactly right.P.S. - Good decision to publish this one in the end...
People v. Wardell (Cal. Ct. App. - May 20, 2008)
Posted on May 20, 2008I always like reading opinions that help me be a more successful criminal. Like this one.Granted, I'm not likely to go out and rob a bank anytime soon. But I do appreciate learning just how exactly those tracking devices they put into some of the money they give you work...
RFK Medical Center v. Leavitt (9th Cir. - May 19, 2008)
Posted on May 19, 2008My initial reaction to this case was: "Disputed corporate Medicare reimbursement as applied to depreciation losses resulting from the disposal of assets through a statutory merger: Thrilling!" Of course, I was being facetious.But, to my horror, I did actually find the case to be marginally interesting...
In Re Judicial Misconduct (9th Cir. - May 14, 2008)
Posted on May 16, 2008I agree with virtually every word you say, Alex. Virtually.Chief Judge Kozinski publishes his disposition of an unnamed attorney's disciplinary charges against an unnamed district court judge. Good to publish it. Especially here. So I agree with that...
U.S. v. W.R. Grace (9th Cir. - May 15, 2008)
Posted on May 15, 2008Nice dissent!Judge Hawkins writes an extremely well-written dissent to the majority's en banc decision. So good, in fact, that you should read it at length. It really is exceptionally well done.I say that, mind you, even though I may well have been in majority on this one...
People v. Bordelon (Cal. Ct. App. - May 15, 2008)
Posted on May 15, 2008I spent my morning reading the California Supreme Court's opinion in the marriage cases. All 160-plus pages of it (including the various concurrences and dissents). That's obviously the judicial highlight of the morning -- indeed, probably of the year or decade -- but since it's a high-profile case about which much ink will already be spilled, I doubt I'd have anything unique to add to the debate...
Buono v. Kempthorne (9th Cir. - May 14, 2008)
Posted on May 14, 2008Politics matters. But, sometimes, it doesn't. That's one lesson you might get from the lineup in this opinion and resulting en banc call.At issue is a big, prominent Latin cross that sits atop Sunrise Rock on federal land in the Mojave National Preserve...
Center for Biological Diversity v. Rey (9th Cir. - May 14, 2008)
Posted on May 14, 2008This is not Judge Noonan's finest work.I understand that it's a review of a denial of a preliminary injunction, and sometimes we want to get these things out quickly. Especially when, as here, we reverse the denial. I also appreciate an effort to write a little more informally...
Price v. Connolly-Pacific Co. (Cal. Ct. App. - May 13, 2008)
Posted on May 13, 2008What?! An admiralty claim filed in state court?! What in the Wild Wild World of Sports is going on here?!But Justice Woods is correct that you are indeed allowed to have admiralty claims in state court in limited circumstances under the savings to suitors clause...
Garcia v. Brockway (9th Cir. - May 13, 2008)
Posted on May 13, 2008"I wrote the majority opinion for the panel. Sure, Judge Fisher dissented, and he and his leftie allies may have successfully gotten the case taken en banc. Even though there was totally no circuit conflict.But guess what? Just because you've got the votes to take the case en banc doesn't mean you're going to win once it gets there...
NLRB v. Lim (9th Cir. - May 12, 2008)
Posted on May 12, 2008Want to read an opinion that's (1) about labor law, (2) not too long, (3) about a disputed $5 or so (though the principle at stake is obviously the central issue), and (4) is unquestionably a correct resolution of the merits, at least in my humble opinion?Then check out this opinion by Judge Pregerson.
In Re Holtemann (Cal. Ct. App. - May 12, 2008)
Posted on May 12, 2008You can comingle your marital assets, and there are a variety of good reasons to do so. But if you do, they're community property. And that matters -- a lot -- in a divorce.That's the principal message of this short-and-sweet opinion by Justice Perren...
People v. Watson (Cal. Supreme Ct. - May 8, 2008)
Posted on May 09, 2008A drive-by gang shooting in Compton. A death sentence for murder. A unanimous decision to affirm by the California Supreme Court.Just another day in America.
Charles Pratt Const. Co. v. California Coastal Comm'n (Cal. Ct. App. - May 8, 2008)
Posted on May 09, 2008Even if you read the caption, I bet you can't figure out what this case is about merely from the first paragraph. Which consists, in its entirety, of the following:"If "it's a long, long time from May to December,"1 it's an eternity from 1973 to 2008...
People v. Tolliver (Cal. Ct. App. - April 10, 2008)
Posted on May 08, 2008Red Jaguar. Maroon Lincoln. Same difference.Or not.P.S. - I'll take the former every day, thank you very much.
Serrano v. Stefan Merli Plastering Co. (Cal. Ct. App. - May 7, 2008)
Posted on May 07, 2008When I first read the caption, I thought to myself: "Why are all these amici and objectors participating? It seems from the identity of the parties to be a totally mundane case." Then I saw what the case was really about: How much court reporters get to charge for deposition transcripts...
People v. Litmon (Cal. Ct. App. - April 23, 2008)
Posted on May 07, 2008Not much today; by lunchtime, only a single opinion from the Ninth Circuit and nothing new from the California Court of Appeal. So a sleepy Hump Day.Which gives me the opportunity to go back and write, if only briefly, about a very good opinion I read a couple of weeks ago...
Ellis v. Arriaga (Cal. Ct. App. - May 6, 2008)
Posted on May 06, 2008You can be a putative spouse. So you can be a putative domestic partner too. And get un-domestic partnered even if you never actually got partnered.Seems right to me.
People v. Gemmill (Cal. Ct. App. - May 6, 2008)
Posted on May 06, 2008Want to know what the police can do -- in particular, where and how they can search a home -- when they find an unattended child wandering in the street? Then read this opinion. Which goes through all of the various cases in California that present this issue...
People v. Williams (Cal. Supreme Court - May 5, 2008)
Posted on May 05, 2008You can read the first ten pages of this 80+ page opinion if you'd like. But it can also be summarized by simply saying that Dexter Williams engaged in a series of events during February 1991 that constitute nothing less than a barbaric display of inhumanity...
Brown v. Farwell (9th Cir. - May 5, 2008)
Posted on May 05, 2008This is definitely a powerful way to begin an opinion:"At Petitioner Troy Brown?s trial for sexual assault, the Warden and State?s (?Respondents?) deoxyribonucleic acid (?DNA?) expert provided critical testimony that was later proved to be inaccurate and misleading...
Pinhoster v. Ayers (9th Cir. - May 2, 2008)
Posted on May 02, 2008The lower court docket number is"CV-95-06240-GLT"; in other words, this case has been pending in federal court for 13 years. The appeal to the Ninth Circuit was filed in 2003, it took four years before the thing was scheduled for oral argument, and over a year after argument for the panel to issue its opinion...
Enpalm v. Titler Family Trust (Cal. Ct. App. - April 30, 2008)
Posted on May 01, 2008I've always found perjury an interesting subject. It seems to me that it's fairly common. Even in the civil side, in which only money (rather than liberty) is typically at stake. My belief is that the typical civil case involves an extraordinary amount of "shading" by the majority of witnesses, a healthy dose of manifest exaggeration, a plethora of convenient forgetfulness, and the not-at-all-rare occasions of outright lying...
Luce Forward v. Koch (Cal. Ct. App. - April 30, 2008)
Posted on April 30, 2008Sure, I've been listed (as most of us have) on the counsel line in a variety of published appellate opinions. And my academic pieces are occasionally cited by courts, so my name appears there as well. But I've never been singled out by name in the text of a published opinion...
People v. Semien (Cal. Ct. App. - April 30, 2008)
Posted on April 30, 2008Some peremptory challenges that are allegedly race-neutral are, I'm fairly convinced, based upon stereotype and pretext, and shouldn't be allowed. But then there are cases like this one.Yes, the dismissed juror was the only African-American on the panel, and the defendant was an African-American charged with very serious crimes...
Roman v. Liberty University (Cal. Ct. App. - April 29, 2008)
Posted on April 29, 2008We're on the Left Coast. So we don't usually see cases in which (1) Liberty University is a defendant, and (2) Jerry Falwell provides a supporting declaration.But they happen.At least the plaintiff's name is a classic California. Last Name: Roman. First and Middle Names: Marlon Brando...
Wang v. Valverde (Cal. Ct. App. - April 29, 2008)
Posted on April 29, 2008Cheating on your DMV test. No upside (if you're caught). But no downside either. At least if you're not criminally prosecuted.A concise and coherent opinion by Justice Rothschild that spans a little over two double-spaced pages. Who says justice needs to be prolix?
U.S. v. Stoterau (9th Cir. - April 29, 2008)
Posted on April 29, 2008Pimp out a boy who's 14? You'll get right around the same number of years in prison.Oh, yeah. One more thing. When you appeal to the Ninth Circuit, and ask the court to use a pseudonym rather than your real name (because otherwise everyone in prison will shank you as a child sex offender), we'll deny the motion...
People v. Lewis (Cal. Supreme Court - April 28, 2008)
Posted on April 28, 2008It's been a busy m*****f***ing month. By which I do not mean that it's been busy for me personally, though assuredly it has. No, what I mean is this: Lately, the California Supreme Court has been really busy using the word "motherfucker".How busy, you ask? How about three different opinions in less than 40 days...
People v. Morgan (Cal. Supreme Ct. - Nov. 15, 2007)
Posted on April 25, 2008It's been a slow day today in the Ninth Circuit and California Court of Appeal. So not much about which I can intelligently comment. Plus my posts yesterday dragged on forever; sorry about that.So I decided to go back and comment briefly on a case from several months ago that was in a different genre than the recent cases I've discussed...
Humane Society v. Gutierrez (9th Cir. - April 24, 2008)
Posted on April 24, 2008Sometimes justice is way speedy. Which is, in part, why I loved this one.It's just an order on an emergency motion for a stay pending appeal of a preliminary injunction motion. You don't see many of those granted -- especially with a published order -- outside the death penalty context...
U.S. v. Sei (9th Cir. - April 24, 2008)
Posted on April 24, 2008Let's talk about pirates.They exist. Not just in Disneyland. And they're bad.Okay, I get that. The question then becomes: How can they be punished? Or, more accurately, does the United States, in particular, have jurisdiction to punish pirates for offenses committed on the high seas?Let me give you the short (and easy) answer: Yes...
People v. Soukomlane (Cal. Ct. App. - April 23, 2008)
Posted on April 23, 2008Justice Cornell writes a concurring opinion in this case to try to be helpful to trial courts in confronting the challenges involved when a criminal pro per defendant may potentially be disruptive.Let me add another one:Chill out. Remain calm. Because if you don't, you may well engage in conduct that's clearly -- or, as Justice Gomes more tactfully (but equally correctly) puts it, "patently" -- erroneous...
Wagner v. Wagner (Cal. Ct. App. - April 23, 2008)
Posted on April 23, 2008It's not enough to have a good claim on the merits. You've also got to follow the rules on appeal.So, for example, Justice Perluss says today to James Crowell, the attorney for the appellant (Claire Wagner):"Our review of the court?s ruling on this motion, however, has been thwarted by Claire?s failure to provide us with a transcript of the hearing on the motion or a copy of the court?s minute order denying the motion...
Villegas v. Mukasey (9th Cir. - April 23, 2008)
Posted on April 23, 2008Mental institutions in Mexico may not constitute deliberate "torture" sufficient to justify withholding of deportation. But, at least currently, they're really horrible. So sayeth Judge Hall.I did not realize that Mexican mental institutions are/were as bad as they are/were...
U.S. v. Staffeldt (9th Cir. - April 22, 2008)
Posted on April 22, 2008Two years? I mean, sure, I understand why the government might not want the name of the relevant AUSA mentioned in the published opinion. He's being reversed, after all. I can also understand why the panel might grant an unopposed motion to delete references to him -- though I could see the other side as well...