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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

People v. Windus (Cal. Ct. App. - July 30, 2008)

Posted on July 31, 2008
You'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, 2008
In 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, 2008
Sometimes 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, 2008
I 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...

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People v. Osorio (Cal. Ct. App. - July 30, 2008)

Posted on July 30, 2008
You'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, 2008
When 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, 2008
When 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, 2008
Thinking 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, 2008
Let 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, 2008
As 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, 2008
Defendant'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, 2008
Throughout 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, 2008
Ties 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, 2008
Tell 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, 2008
It'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, 2008
Sometimes 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, 2008
If 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, 2008
You 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, 2008
Congratulations 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, 2008
We 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, 2008
Nice 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, 2008
I 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, 2008
Justice 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, 2008
Want 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, 2008
This 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, 2008
You'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, 2008
It'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, 2008
When 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...

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