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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

Frantz v. Hazey (9th Cir. - Jan. 22, 2008)

Posted on January 22, 2008
Maybe Alex Kozinski has changed -- albeit only a tiny little bit -- as a result of his new role as Chief Judge. And, perhaps, has only changed in the context of en banc opinions.Regardless, if there has been a change -- and I admittedly think it's way too soon to tell -- I think I'll like it...

Ali v. Bureau of Prisons (U.S. Supreme Ct. - Jan. 22, 2008)

Posted on January 22, 2008
You gotta love this opinion. For at least two different reasons.First, it's not your usual 5-4. Sure, in general, the conservatives are in the majority and the liberals are in dissent. Nothing surprising there.But unlike the usual case, where Kennedy's the swing vote, this time the swing vote that adds the fifth vote to the four conservatives (Roberts, Scalia, Thomas, and Alito) is ...

Jessen v. Mentor Corp. (Cal. Ct. App. - Jan. 16, 2008)

Posted on January 21, 2008
And, equally tangentially, on the lighter side of things, read this opinion. Which is yet another of the everyday cases you read involving a deformed testicular prothesis. Dime a dozen, right?P.S. - Do you think Justice Perluss recognized the potential of footnote two, which says "there is no significant difference in appearance or weight between an unfilled and filled implant, especially in the small size Jessen received" (emphasis added)? I mean, sure, I know we're talking about a prothesis here...

U.S. v. Lococo (9th Cir. - Dec. 27, 2007)

Posted on January 21, 2008
It may be a holiday. There may be no new opinions to read. It may even be raining (as it is) in ordinarily sunny San Diego. But there are still cases about which something can be said.For example, this one's from a couple of weeks ago, but there's no reason -- at least that I can see -- to publish this opinion...

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Nguyen v. Nguyen (Cal. Ct. App. - Jan. 17, 2008)

Posted on January 18, 2008
Stylistically, this opinion reads a little bit like the first -- and sometimes second -- drafts of the briefs that I sometimes write. And that's not necessarily a good thing.I'm not saying that Justice Sills gets this one wrong. Far from it. In fact, I think he's totally right, and that Janet Nguyen -- rather than appellant Trung Nguyen -- was properly declared the winner of the relevant Orange County supervisorial seat at issue in the litigation...

People v. Medina (Cal. Ct. App. - Jan. 17, 2008)

Posted on January 17, 2008
Maybe this year's a bad one for computer integration as well. Consider this line in the opinion published today by Justice Kane: "Defendant told the officer it was his hous7e."Time to work the bugs out of that computer system, huh?

People v. Chakos (Cal. Ct. App. - Jan. 17, 2008)

Posted on January 17, 2008
I think that 2008 is going to be an unusual year, as I keep seeing things that are pretty darn rare. Not four-headed monsters or anything. But nonetheless stuff you don't see every day.Like this amendment, which was published today by Justice Sills...

In Re Marriage of Barthold (Cal. Ct. App. - Jan. 15, 2008)

Posted on January 17, 2008
"A party can't file a motion for reconsideration that doesn't meet the requirements of CCP 1008; e.g., that doesn't raise anything new. But while a party can't do that, if it does, and the judge is thereby persuaded to grant the relief requested therein 'sua sponte' (albeit obviously prompted by the improper motion), that's okay...

Preserve Shorecliff Homeowners v. City of San Clemente (Cal. Ct. App. - Jan. 16, 2008)

Posted on January 16, 2008
You should read this opinion if only for the breezy manner in which Justice Sills writes it. That's not something you see every day. Even from him.Plus, on the merits, he's exactly right. It's unconstitutional under the First Amendment to require that people who circulate referenda petitions be eligible voters in the city (or other locality) in which the referenda is to be voted upon...

U.S. v. Lowry (9th Cir. - Jan. 16, 2008)

Posted on January 16, 2008
Here's a criminal opinion that you don't see every day. Or at least you don't see every day since the mid-1800s. It's a prosecution of Native American for trespassing on U.S. land, in which the Indian claims that she's entitled to live there because she has aboriginal title to the property...

In Re Marriage of James M. (Cal. Ct. App. - Jan. 15, 2008)

Posted on January 15, 2008
I sympathize with the trial court in this one.It's a marital dissolution proceeding, the ex-wife is proceeding pro per (having failed to pay her lawyer), and she repeatedly demands that the trial date be moved -- even in the midst of trial -- based upon her bipolar disorder...

Bingue v. Prunchak (9th Cir. - Jan. 15, 2008)

Posted on January 15, 2008
Las Vegas police officer Eli Prunchak sideswiped an innocent bystander as he was racing to join a high-speed case on I-95. The bystander sued, and Prunchak moved for qualified immunity, but his motion was denied by the district court.But this is Vegas, baby! Roll again! This time in front of the Ninth Circuit...

De Bruyn v. Superior Court (Cal. Ct. App. - Jan. 15, 2008)

Posted on January 14, 2008
Toilet overflow? Massive water damage? A hassle. But at least you're insured, right?Well, sure, you're insured for the direct water damage. But let's say that the water causes some mold. Which, of course, it's definitely going to do.In that event: Tough...

U.S. v. Calvert (9th Cir. - Jan. 14, 2008)

Posted on January 14, 2008
Here's a good one for the day. An opinion by Judge Larson, sitting by designation from the Central District. Who's an old debate type -- from roughy my era, no less -- so I was especially attentive. But even without the personal connection, I'd still have been interested in the opinion...

Crowley Meritime Corp. v. Boston Old Colony Ins. Co. (Cal. Ct. App. - Jan. 11, 2008)

Posted on January 11, 2008
There's gotta be a sexier way to start a published opinion than this:"In this case we cross the Atlantic Ocean to consider the relationship, if any, between domestic and foreign insurance agreements in an arbitration dispute involving equitable contribution between insurance companies...

McGarry v. Sax (Cal. Ct. App. - Jan. 10, 2008)

Posted on January 10, 2008
The two published cases this afternoon both happen to involve pro per litigants in the California Court of Appeal. The first of whom was someone who was injured when some professional skateboarders threw out a free skateboard deck into a crowd of spectators...

People v. Matye (Cal. Ct. App. - Jan. 10, 2008)

Posted on January 10, 2008
The "bag whore" case continues.I posted about this opinion -- which is memorable (to me, anyway) only because of the use of that term -- back in 2006. The case then went up to and down from the California Supreme Court. And now returns from whence it came...

Feldman v. Bomar (9th Cir. - Jan. 10, 2008)

Posted on January 10, 2008
Here's a case that hits close to home. 87 miles to the Northwest, to be exact:National Park Service: "Non-native feral pigs are eating all the rare, native plants on Santa Cruz Island. And causing lots of other problems too. We're going to get rid of them...

Fiscal v. San Francisco (Cal. Ct. App. - Jan. 9, 2008)

Posted on January 09, 2008
San Franscisco voters may be liberal. They might like gun control. They might even pass a statute that bans the sale and possession of handguns in the city. Indeed, all of this is, in fact, true.No matter. You can still possess and sell handguns in San Francisco...

Berger v. City of Seattle (9th Cir. - Jan. 9, 2008)

Posted on January 09, 2008
Today was a busy day for the Ninth Circuit, with nine published opinions. But by far the best -- and longest -- of the litter was this one.It's a classic, and important, debate between conservatives and liberals regarding how much one can legitimately restrict free speech in a public forum...

City of Los Angeles v. 2000 Jeep Cherokee (Cal. Ct. App. - Jan. 8, 2008)

Posted on January 08, 2008
Call me crazy. But when (1) your case is substantively identical to one which the California Supreme Court granted review; (2) the California Supreme Court granted review of your prior opinion, held it pending the adjudication of the other case, and then remanded it after it adjudicated the case it took; (3) the California Supreme Court squarely held in the other case that preemption existed, on facts (again) identical to those at issue in your case; and (4) after the California Supreme Court ruled, the appellant in your case admitted that the present case must be affirmed -- well, given all these facts, why are we publishing this opinion? Which, in large part, merely consists of block quotations from the California Supreme Court's case, and holds that, yep, as everyone agrees, the case is on all fours...

NLRB v. Friendly Cab (9th Cir. - Jan. 8 , 2008)

Posted on January 08, 2008
You don't see many labor law cases anymore. For a variety of reasons, including (but by no means limited to) the decline in union membership. Which is a personal bummer for me, because I went ahead and took a labor law class in law school but now very rarely get a chance to apply that knowledge...

People v. Jefferson (Cal. Ct. App. - Jan. 7, 2008)

Posted on January 07, 2008
Imagine that you and your homies have recently killed someone in a drive-by shooting. Someone who, as it turns out, was a totally innocent bystander. Oops. Bad Move #1.The police drag you and one of your friends in for interrogation. Happens. You and your buddy both invoke your right to be silent...

People v. Oglesby (Cal. Ct. App. - Jan. 7, 2008)

Posted on January 07, 2008
This is not why Rodney Lyn Oglesby is spending six years in prison. Or at least not most of the reason why.Still, it doesn't help your domestic violence case -- or your attempt to appear sympathetic -- when the third charge to which you pled guilty was for "committing animal cruelty by killing a kitten...

CHP v. Quigley (Cal. Ct. App. - Jan. 7, 2008)

Posted on January 07, 2008
I was just teasing, Justice Rushing. I knew -- or at least suspected -- that the bizarre spelling of "Thus" in this opinion (about which I posted on Friday) was likely the fault of a computer, not an actual typo.Still, I liked the heading of the amendment posted today...

CHP v. Quigley (Cal. Ct. App. - Jan. 4, 2008)

Posted on January 04, 2008
It's a sign of the times that it takes 25 pages for a court to explain precisely why a dude who wears a baseball cap on his head -- or, for that matter, a yarmukule or dixie cup tied to a string -- doesn't get off on the grounds that he's wearing acceptable safety equipment under California's Helmet Law...

Hayward v. Marshall (9th Cir. - Jan. 3, 2008)

Posted on January 03, 2008
This is yet another of the plethora of cases in which the Governor -- here, Gray Davis -- reversed the recommendation of parole for someone convicted of murder. And you can tell how it's going to come out on appeal merely by reading the first couple of paragraphs of the Ninth Circuit's opinion...

Saleh v. Fleming (9th Cir. - Jan. 3, 2008)

Posted on January 03, 2008
"This will undoubtedly shock you," Judge Berzon essentially says in her short -- but trenchant -- concurrence in this case, "but I agree with Judge Norris -- who dissented in that earlier Ninth Circuit case about Miranda -- rather than the contrary views of Judge Brunetti...

People v. Lawrence (Cal. Ct. App. - Jan. 2, 2008)

Posted on January 02, 2008
"There is nothing like a short stint of self-representation to dampen the hubris of a defendant who may not truly appreciate the dangers and disadvantages of self-representation when advised of them as part of a Faretta waiver."Ain't that the truth. Great line by Justice Perluss...

Leadsinger, Inc. v. BMG Music Publishing (9th Cir. - Jan 2, 2008)

Posted on January 02, 2008
The New Year starts out poorly for karaoke lovers. Because the Ninth Circuit holds here that even after you get the compulsory mechanical license provided by statute, it's not thereby permissible (or fair use) to display the lyrics to the songs as well...

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