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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

Buell-Wilson v. Ford Motor Co. (Cal. Ct. App. - April 10, 2008)

Posted on April 10, 2008
You'd think that Ted Olson and Ted Boutrous -- among others -- would know that they tape these things. And I'm infinitely positive that they do.Yet Justice Nares amends his opinion to add the following today. And scores some definite points in doing so:"At page 87, following the last sentence on that page, a footnote 14 is added, stating:In its petition for rehearing Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal...

Council of Interstate Insurance Agents v. Molasky-Arman (9th Cir. - April 10, 2008)

Posted on April 10, 2008
Do States occasionally unconstitutionally (and brazenly) favor their own residents? Darn tooting they do.And when they do, I couldn't be happier to see the Ninth Circuit whack 'em.Privileges and Immunities Clause. Learn it. Love it. Live it.

Committee to Save the Hollywood v. City of Los Angeles (Cal. Ct. App. - April 9, 2008)

Posted on April 09, 2008
Trying to build a fence in Hollywood sometimes gets more attention -- both from the executive and the judiciary -- than putting a guy in prison for 20 years. Check it out.I'm not saying that a dispute over this fence should be taken lightly. It's a real issue...

People v. Wilson (Cal. Supreme Court - March 27, 2008)

Posted on April 09, 2008
Virtually every death penalty case is sad. But some are even more tragic -- and senseless -- than others."On July 25, 1996, her first day as cashier at Seng Heng Market, victim Sary San was shot and killed during an attempted robbery. The fatal shooting was captured by the market?s surveillance cameras, which recorded both picture and sound...

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People v. Garelick (Cal. Ct. App. - April 8, 2008)

Posted on April 08, 2008
I'm pretty impressed. It's one thing to get a pedophile to show up at a park for a rendezvous with an alleged 13-year old girl. That's not too hard. It's another thing to have the foresight to ask the pedophile to bring with him a particular brand of condoms and a particular brand of bubble gum...

People v. Lessie (Cal. Ct. App. - April 8, 2008)

Posted on April 08, 2008
I'm far from the most tech-savvy person in the universe. I was a late adopter of e-mail. I barely know how to send a text message. I've IMed maybe twice in my life. And -- horror of horrors -- only earlier this year did I purchase a cell phone. (My theory, right or wrong, was that very few students ever say: "I need to talk to my Civ Pro professor ASAP...

People v. Woods (Cal. Ct. App. - April 7, 2008)

Posted on April 07, 2008
There are some holdings that seems so obviously correct that you wonder how the other side could possibly argue the contrary. Like here.Justice Swager holds that a criminal defendant convicted of being an accessory to murder after the fact can't be ordered to pay restitution to the murder victim's family...

Fogel v. Farmers Group (Cal. Ct. App. - April 7, 2008)

Posted on April 07, 2008
I think it's fair to say that no attorney wants the Court of Appeal to call him or her a liar in a published opinion. Especially when you're at a white shoe firm like Skadden Arps.So when Justice Willhite wrote last month that counsel for defendants -- Joren Bass, Richard Zuromski, and Raoul Kennedy -- repeatedly "misled" the Court of Appeal, including at oral argument, by stating a certain fact that wasn't true, you can understand why these attorneys might have been more than a little bit bummed...

In Re Hanford Nuclear Reservation Litigation (9th Cir. - April 4, 2008)

Posted on April 05, 2008
It's not only death penalty cases that sometimes take forever. Check out this one.You don't see many civil cases in the Ninth Circuit nowadays in which the district court docket number begins "CV-91-....".

People v. Rundle (Cal. Supreme Court - April 3, 2008)

Posted on April 04, 2008
It took the jury less than a day to convict David Rundle, and less than a day to sentence him to death.It takes the California Supreme Court 159 pages -- and over 18 years -- to unanimously affirm. And we're not talking about intermediate reversals or the like; nope, this is the very first opinion...

Johnson v. American Standard (Cal. Supreme Court - April 3, 2008)

Posted on April 03, 2008
"The Restatement of Torts allows a 'sophisticated user' defense; i.e., a manufacturer doesn't have to warn a sophisticated user of its product of particular dangers when such dangers are well-known to such high-level users. Other states allow this defense...

Fair Housing Council v. Roommates.com (9th Cir. - April 3, 2008)

Posted on April 03, 2008
There are benefits to being the Chief Judge.For example, when you've written the panel opinion, and it gets taken en banc, you're always on the en banc court to defend -- and vote for -- your ruling. Plus, at least if you're in the majority in the en banc court, you get to assign who writes the opinion...

Metters v. Ralphs Grocery Co. (Cal. Ct. App. - April 1, 2008)

Posted on April 02, 2008
You might be a big, fancy corporation, with lots of stores. And you might well be able to trick a low-level employee into signing an arbitration clause by disguising what it is.But you won't be able to fool the Orange County Superior Court. And you won't be able to fool the California Court of Appeal either...

Sanchez v. Mukasey (9th Cir. - April 2, 2008)

Posted on April 02, 2008
I can make my points about this case fairly concisely:(1) I always find it interesting when a judge wants to use a word other than "concurring" or "dissenting" or the like. After all, in general, you either disagree with the judgment or not, and the description of your separate opinion pretty much follows from that...

Miller v. Davis (9th Cir. - April 2, 2008)

Posted on April 02, 2008
I agree with Judge Reinhardt -- and think it's pretty clear -- that the Governor of California should be (and hence is) entitled to absolute quasi-judicial immunity for even an erroneous reversal of a parole board's grant of parole. Sure, as it turns out, the Governor does't actually have the power to reverse parole grants for people convicted of conspiracy to commit murder, as opposed to actual murder...

Ortega v. Sacramento County Dep't of HHS (Cal. Ct. App. - April 1, 2008)

Posted on April 01, 2008
Justice Sims tellingly begins this opinion with the line: "This tragic case will make you sad." A line that I liked.But, personally, I thought it might be even more accurate to add: "and, perhaps even more significantly, angry." Since that was my definite reaction...

U.S. v. Smith (9th Cir. - March 31, 2008)

Posted on March 31, 2008
It takes a fair piece to get Judge Dorothy Nelson to write a dissent. But it occasionally happens. As it does here.I think this is a pretty darn good candidate to get taken en banc. It's a case in which the majority opinion arguably conflicts with a prior en banc decision...

Momeni v. Chertoff (9th Cir. - March 31, 2008)

Posted on March 31, 2008
"It's one thing to legally come to the United States as an au pair, fall in love while you're here, marry a citizen, have your spouse die, and then ask to please be allowed to stay. It's another thing to legally come to the U.S., illegally overstay your visa, then marry a citizen -- who's still alive -- and ask to stay...

Cook v. Superior Court (Cal. Ct. App. - March 26, 2008)

Posted on March 31, 2008
Justice delayed, as we all know, is justice denied. By contrast, sometimes, speedy justice is pretty darn impressive. As it is here.I gotta tell you, I'm pretty floored by how rapidly -- and properly -- this case gets resolved. As in less than 10 days from the filing of the lawsuit to resolution of the appeal...

Duffens v. Valenti (Cal. Ct. App. - March 27, 2008)

Posted on March 28, 2008
You're killing me, Court of Appeal.Earlier this week, I complain -- okay, I whine -- about the flood of opinions coming out of the Ninth Circuit and Court of Appeal this week. Including 30 in 32 hours. Crushing. At least for devoted court-watchers (and -readers) such as myself...

Harvest v. Castro (9th Cir. - March 27, 2008)

Posted on March 27, 2008
I agree with Judge Tashima -- and think it's a significant point -- that we should treat a State's request for modification of a habeas grant as a Rule 60 motion, rather than as a free-floating equitable principle. I'm a little bit concerned that such requests don't neatly fit into the typical Rule 60 mode (witness, for example, the misfit between the "mistake" here and the typical Rule 60(b)(1) "mistake" that gives rise to the judgment itself), and think that there are some Rule 60 constraints that aren't mentioned by Judge Tashima that might give rise to problems in the habeas context (e...

In Re Singler (Cal. Ct. App. - March 26, 2008)

Posted on March 26, 2008
One of the fairly memorable constants of reading all of the published California appellate decisions during the past decade or so revolves around the treatment of parole applications by convicted murderers. The current scoop -- for those who don't recall it -- is that Governors Davis and Schwarzenegger (among others) (1) made sure to appoint very hard core (anti-parole) people to the Board of Parole Hearings, and (2) adopted and applied (and, in the latter case, continue to apply) an unannounced policy -- one that would be clearly illegal if formally announced -- of uniformly reversing the Board of Parole Hearings in those rare circumstances in which the Board eventually grants parole to an individual convicted of murder...

In Re H.B. (Cal. Ct. App. - March 25, 2008)

Posted on March 25, 2008
Look, I like reading judicial opinions as much as anyone. Even more so, I think.But the last 32 hours have seen no less than twenty published opinions by the California Court of Appeal and another double-digits by the Ninth Circuit. Can't we spread this stuff out a bit, people? I've got other stuff I've got to do, you know...

Manzarek v. St. Paul Fire & Marine Ins. Co. (9th Cir. - March 25, 2008)

Posted on March 25, 2008
Zzzzzz. Another boring insurance coverage case. Sure, it's a well-written opinion by Judge Randy Smith. But it's insurance, right? So nobody's going to read it.Wait! You say it's an insurance coverage case that involves Ray Manzarek and John Densmore -- former members of The Doors -- as well as the parents of Jim Morrison and Morrison's late wife?! Well, okay then...

Department of Toxic Substances v. Burlington Northern (9th Cir. - March 25, 2008)

Posted on March 25, 2008
Sometimes you can tell the complexity of a case merely by looking at the caption. Here's an example.Check out this part of the (lengthy) caption:Argued and SubmittedSeptember 12, 2005?San Francisco, CaliforniaSubmission Withdrawn September 14, 2005Resubmitted March 16, 2007Filed March 16, 2007Amended September 4, 2007Second Amendment March 25, 2008Finishing up two and a half years after oral argument...

Foulon v. Klayman & Toskes (9th Cir. - March 24, 2008)

Posted on March 24, 2008
This doesn't happen every day. Indeed, it's sufficiently rare that it took me quite a while to figure out even what happened.It's a forum selection clause issue. The parties briefed the case in 2005, and argued it in Seattle before a three-judge panel on November 17, 2006...

In Re Lawley (Cal. Supreme Court - March 24, 2008)

Posted on March 24, 2008
Let me be the first to alert you to the most significant development in California jurisprudence imaginable. An event of the most profound significance -- one that has been developing for at least the past three decades, and yet has exploded with a fury over only the past several days...

In Re R.K. (Cal. Ct. App. - March 21, 2008)

Posted on March 21, 2008
It may be a holiday (Good Friday) here at my Catholic employer, the University of San Diego. As well as at a variety of other private and public institutions. But no such luck for our relentless judicial officers. Who even today continue to crank out published opinions...

People v. Gay (Cal. Supreme Ct. - March 20, 2008)

Posted on March 20, 2008
When the California Supreme Court unanimously reverses a death sentence -- and, these days, that's an exceptional rarity -- you can be pretty sure that it's reached the correct result. As, indeed, is the case here.I might add, however, that it may be a bit easier than for the Court to reverse the death sentence here -- as contrasted to a typical case -- because the defendant has been sentenced to death twice, before two different juries...

New Hampshire Ins. Co. v. C'est Moi (9th Cir. - March 20, 2008)

Posted on March 20, 2008
Chief Judge Kozinski begins this opinion with the following line: "We consider the doctrine that?s on everyone?s lips: uberrimae fidei."Which is indeed a funny opening. Especially since, as loyal readers already know, that doctrine is indeed on everyone's lips, at least after Judge McKeown's scholarly exposition on the subject last month...

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