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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

Redding v. Safford Unified School Dist. (9th Cir. - July 11, 2008)

Posted on July 14, 2008
It'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, 2008
I 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, 2008
This 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, 2008
What 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...

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People v. Parson (Cal. Supreme Ct. - July 10, 2008)

Posted on July 10, 2008
It'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, 2008
You'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, 2008
Justice 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, 2008
Sure, 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, 2008
It 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, 2008
Don'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, 2008
It'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, 2008
I 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, 2008
What 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, 2008
What 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, 2008
When 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, 2008
I'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, 2008
As 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, 2008
This 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, 2008
San 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, 2008
Here, 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, 2008
We 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, 2008
It'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, 2008
The 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, 2008
Justice 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, 2008
Tahisha 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, 2008
You 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, 2008
It'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, 2008
You 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, 2008
Looking 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...

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