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Federal Judiciary

California Appellate Report

Commentary on recent Ninth Circuit.
By Shaun Martin

Post Frequency: 14/day

Last Entry: May 23, 2013 at 16:14:00

Rybicki v. Carlson (Cal. Ct. App. - May 22, 2013)

Posted on May 23, 2013
My interest in cases like this one has definitely increased during the past month or so.The Court of Appeal gets it right. Moreover, it does so concisely, in an opinion that takes less than eight double-spaced pages.Here's my summary of the opinion: Motor Vehicle 1, Bicylist 0...

People v. Pizarro (Cal. Ct. App. - May 21, 2013)

Posted on May 22, 2013
I am exhausted.Not over the stuff you might think. Though that might assuredly play a part.Rather, I am spent -- spent, I tell you -- after reading this opinion by Justice Kane.There is some interesting stuff in the opinion about juror misconduct...

People v. Timothy N. (Cal. Ct. App. - May 22, 2013)

Posted on May 22, 2013
When you are a repeat player in the justice system, you've got to do better than this.If you are the California Attorney General, there are so many better vehicles for getting your point across rather than taking this particular case up in appeal...

People v. Lopez (Cal. Ct. App. - May 20, 2013)

Posted on May 20, 2013
I have a couple of reactions to the underlying facts of this case. So I thought others might be interested in those facts as well:"Respondent [Sergio Jose Lopez], a practicing attorney, was Sirena Zavala's boyfriend. They lived in Zavala's house...

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Greene v. Bank of America (Cal. Ct. App. - May 16, 2013)

Posted on May 17, 2013
Not too long ago, I litigated an appeal in which the attorney for the defendant (Jan Chilton) was the same one as in this appeal. l. I found Him to be reasonable, sophisticated and smart.I do not think that these qualities in an opposing counsel uniformly exist...

In Re Martin (San Diego - May 13, 2013)

Posted on May 17, 2013
Regular readers may notice that I have been very light on posts this week. In fact, I must forthrightly confess that I have probably read fewer pages of the Federal and California Appellate reporters this week than any week during the past decade...

Slater v. Clarke (9th Cir. - Nov. 19, 2012)

Posted on May 15, 2013
I'm not sure how the Massachusetts officials who (allegedly) decided not to extradite Daniel Tavares could possibly have made that decision rationally. Nor could the survivors of the two people who died as a result.But I'm also not sure how Judge Leighton, from the Western District of Washington, could deny the defendant's immunity motion...

County of Tulare v. Nunes (Cal. Ct. App. - April 29, 2013)

Posted on May 15, 2013
Doesn't the Court of Appeal find it somewhat ironic that the County of Tulare adopted -- and the Court of Appeal affirmed -- an ordinance that bars the cultivation of medical marijuana in places zoned for agriculture?

Gonzalez v. F.E.V. (9th Cir. - March 23, 2013)

Posted on May 13, 2013
There's a dissent in this Section 1983 police excessive force case. The panel consists of Judges O'Scannlain, Trott and Clifton. One need not speculate as to the identity of the dissenter.It's a fascinating case. Judge Clifton's dissent raises an interesting point that I should have -- but haven't fully -- considered previously: that in many police excessive force cases (as well as others), the sole surviving witnesses are the defendants themselves...

People v. Fisher (Cal. Ct. App. - May 10, 2013)

Posted on May 10, 2013
It may well be -- as the Court of Appeal holds -- that a criminal court doesn't have the statutory power to enter a restraining order in an extortion case, unlike some other criminal cases (e.g., stalking, domestic violence, etc.).However, if that's indeed the case, the law should be changed...

Duchrow v. Forrest (Cal. Ct. App. - April 30, 2013)

Posted on May 10, 2013
I'm looking for someone to root for here.Lawyer A represents Lawyer B in an action against Lawyer B's employer. Lawyer A withdraws at the beginning of trial, and the case is dismissed.Lawyer A then sues Lawyer B for alleged unpaid fees and costs...

In Re David & Sharon Welsh (9th Cir. - March 25, 2013)

Posted on May 09, 2013
I certainly do not have a firm understanding about how bankruptcy works. For what it's worth -- which is not much -- it seems to me that this Ninth Circuit opinion, which affirms a (split) decision of the Bankruptcy Appellate Panel, seems correct on the merits...

Elija W. v. Superior Court (Cal. Ct. App. - May 8, 2013)

Posted on May 08, 2013
I had a lot to say about this opinion when it first came out in February. Suffice it to say that I didn't especially like it, and found it -- at a minimum -- insufficiently reasoned.Today the Court of Appeal amended the opinion after rehearing...

Goldstein v. City of Long Beach (9th Cir. - May 8, 2013)

Posted on May 08, 2013
Ninth Circuit judges certainly know their way around a dictionary.Thomas Goldstein spent 24 years in prison based upon the perjured testimony of an unreliable jailhouse informant, Edward Fink.Judge Reinhardt describes the informant as "the eponymous Edward Fink...

The Los Canos Co. v. Kramer (Cal. Ct. App. - May 7, 2013)

Posted on May 07, 2013
Plaintiff in this case has a point. One with which I agree. Court reporters charge way too much for copies of transcripts. So when they say the fees are unreasonable -- e.g., $16,000 for simply sending an already-existing uncertified electronic copy of a transcript (for which the reporter has already been fully paid by the noticing party) -- I couldn't agree more...

City of Riverside v. Inland Empire Patients Health and Wellness Center (Cal. Supreme Ct. - May 6, 2013)

Posted on May 06, 2013
I kept waiting for the other shoe to drop in this one. It never came.The California Supreme Court holds that Riverside -- and any other municipal entity -- can totally ban the sale of medical marijuana notwithstanding the initiative (and subsequent statute) that allows medicinal use...

People v. Williams (Cal. Supreme Ct. - May 6, 2013)

Posted on May 06, 2013
It seems so easy at first. Scam someone in a drug deal. Buy some kilos of cocaine with bundles of "cash" wrapped in plastic that are actually ripped up phone books in the shape of bills.Yeah, in theory, that works. A theory that sounds even more attractive when you've been smoking a ton of weed when you come up with the plan...

People v. McCoy (Cal. Ct. App. - May 3, 2013)

Posted on May 03, 2013
The facts of this opinion start on page four, and take up three double-spaced pages.Read them.I'm rarely at a loss for words. This is one of those times.

U.S. v. Mancuso (9th Cir. - May 1, 2013)

Posted on May 02, 2013
Think dentistry is a profession for nerds?Whatever else dentist Jerome Mancuso was, he was assuredly not a nerd. As Judge Bea notes in the opinion, Dr. Mancuso "distributed a lot more than free toothbrushes to his friends and acquaintances in Billings, Montana...

People v. Xiong (Cal. Ct. App. - April 30, 2013)

Posted on April 30, 2013
DNA evidence is incredibly helpful. Both to persuade a jury to convict and, occasionally, to exonerate.Usually, DNA evidence is just a start. Especially in "cold hit" cases. You identify a suspect, either independently or through a DNA match, and then you build up a case from there...

People v. Goolsby (Cal. Ct. App. - April 30, 2013)

Posted on April 30, 2013
When they talk about getting off on a technicality, this is what they mean.Though here, it's not the constable who's blundered. It's the prosecutor.

Jameson v. Desta (Cal. Ct. App. - April 29, 2013)

Posted on April 29, 2013
Yes. It's true. Plaintiff is claiming that he received too much medical treatment while in prison.The Court of Appeal nonetheless gets this one right. For the third time. It previously twice reversed the trial court's dismissal of plaintiff's lawsuit...

Battaglia Enterprises v. Superior Court (Cal. Ct. App. - April 29, 2013)

Posted on April 29, 2013
See? I'm not always wrong.Or at least, when I say something, other -- wiser -- people occasionally come to agree with me.Of course, even a broken clock is right twice a day.

People v. Harrison (Cal. Ct. App. - April 18, 2013)

Posted on April 26, 2013
Not the most sympathetic defendant in the universe. Not surprising that his convictions are affirmed.At all.

U.S. v. Trujillo (9th Cir. - April 16, 2013)

Posted on April 26, 2013
Two things are surprising about this case. I'll mention them very briefly. Without elaboration.First, it's a cocaine sentencing modification case, and the AUSA who argued the case in the Ninth Circuit (Wendy Wu) is with the Cyber & Intellectual Property Crimes section of the U...

Taxpayers for Accountable School Bond Spending v. San Diego USD (Cal. Ct. App. - April 25, 2013)

Posted on April 25, 2013
This is a staggering devotion of resources -- really quite shocking -- devoted to fighting about whether Hoover High School (here in San Diego) gets to put up some lights for its football field.It's very plausible that Proposition S, which was approved by the voters in 2008 and authorized up to $2...

Schwab v. CIR (9th Cir. - April 24, 2013)

Posted on April 24, 2013
I'll readily admit that I can only partially follow the legal analysis in this opinion. Not that it's wrong. Not that it's confusing. Not that the opinion isn't written well. None of that. It's simply that the underlying issue involves tax laws, regulations, annuities, surrender values, and all sorts of other esoteric things with which I'm not entirely familiar...

Mendoza v. Hamzeh (Cal. Ct. App. - April 22, 2013)

Posted on April 23, 2013
You don't see a huge number of attorney fee awards imposed against a party that files an anti-SLAPP motion. It's also unusual to see a strong negative reaction by a court to a party's failure to cite controlling authority. Counsel generally know that if there's a case on point -- or even close to on point -- the best strategy is to cite it and then attempt to distinguish it...

U.S. v. McClendon (9th Cir. - April 19, 2013)

Posted on April 19, 2013
Judge Gould does his best Kozinski impression. Which made me chuckle out loud:"At around 2:20 a.m. on a spring night, two police officers responded to a 911 call placed by an elderly disabled homeowner who feared a possible invader. The homeowner reported that an unknown vehicle was parked in his driveway with its engine and lights off and that someone had knocked on his door...

Hoogenberg v. Simmons (Cal. Ct. App. - April 18, 2013)

Posted on April 18, 2013
You think your divorce proceedings were bad? Listen to this one, which involves San Diego residents Tracy Hoogenberg and Buford Keith Simmons:"The parties were married in May 2008 and separated one year later in May 2009. They have one child (Child) born in March 2009...

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