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Federal Judiciary

California Appellate Report

Commentary on recent Ninth Circuit.
By Shaun Martin

Post Frequency: 4.3/day

Last Entry: November 04, 2020 at 16:52:00

McMurtrey v. Ryan (9th Cir. - Aug. 21, 2008)

Posted on August 22, 2008
You 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, 2008
As 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, 2008
Bad 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, 2008
Ah, the exciting life of a capper.

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Pelton-Shepherd Industries v. Delta Packaging Products (Cal. Ct. App. - Aug. 19, 2008)

Posted on August 19, 2008
Here'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, 2008
Want 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, 2008
I 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, 2008
Hmmm. 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, 2008
Judge 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, 2008
It'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, 2008
Two 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, 2008
Imagine 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, 2008
Bigamy? 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, 2008
It'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, 2008
Some 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, 2008
I 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, 2008
It'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, 2008
You'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, 2008
This 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, 2008
Sometimes 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, 2008
Please 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, 2008
Not 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, 2008
You'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, 2008
Think 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, 2008
No 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, 2008
You 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, 2008
The 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, 2008
The 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, 2008
The 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...

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