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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

Arteaga v. Brink's Inc. (Cal. Ct. App. - May 28, 2008)

Posted on May 30, 2008
Your 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, 2008
The 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, 2008
Just 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...

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San Joaquin County Dep't Child Support Svcs v. Winn (Cal. Ct. App. - May 27, 2008)

Posted on May 28, 2008
A 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, 2008
When 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, 2008
Sometimes 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, 2008
Just 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, 2008
I'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, 2008
It'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, 2008
You 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, 2008
I 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, 2008
My 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, 2008
I 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, 2008
Nice 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, 2008
I 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, 2008
Politics 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, 2008
This 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, 2008
What?! 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, 2008
Want 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, 2008
You 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, 2008
A 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, 2008
Even 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, 2008
Red 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, 2008
When 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, 2008
Not 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, 2008
You 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, 2008
Want 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...

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