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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

Reid v. Google (Cal. Supreme Ct. - Aug. 5, 2010)

Posted on August 05, 2010
You'll be happy to know that you no longer have to "stomp and scream" -- often, an exercise in futility anyway -- at summary judgment hearings and beg the trial court (under penalty of waiver) to expressly rule on your evidentiary objections. The California Supreme Court says that it's okay to simply file written objections, and if the trial court doesn't rule on them, they're presumed overruled and you can argue error in the Court of Appeal if you'd like...

Henderson v. PG&E (Cal. Ct. App. - Aug. 5, 2010)

Posted on August 05, 2010
I'm of two minds here.On the one hand, it seems silly -- irrational, even -- to allow for mandatory relief from defaults based on attorney errors (as long as they file an affidavit) and yet not similarly allow relief from, say, summary judgment motions based on similar errors...

Kawashima v. Holder (9th Cir. - Aug. 4, 2010)

Posted on August 04, 2010
Judge Graber dissents from the denial of en banc review and has this to say about the panel opinion (authored by Judge O'Scannlain):"The panel reads one phrase of the statute in isolation, ignoring the very next phrase in the same sentence. The panel?s interpretation of the statutory provision renders another statutory provision superfluous...

Turner v. Comm'r of Social Security (9th Cir. - Aug. 2, 2010)

Posted on August 04, 2010
I'm a little surprised that Judge Gould hasn't gotten some flack for this one.Not that I don't get his point. The question is whether James Turner was disabled as a result of PTSD back in the 80s and early 90s. There's a fair amount of evidence that he was, which I'll mention in a second...

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Khan v. L.A. City Employees' Retirement System (Cal. Ct. App. - Aug. 3, 2010)

Posted on August 03, 2010
It's unclear to me which has sweetest retirement system: California public employees or California judges. They're both pretty choice. They'd be even more choice if you combined them, and let a municipal employee who was appointed as a judge get benefits from the public employees' plan at his higher judicial salary...

U.S. v. Monday (9th Cir. - Aug. 2, 2010)

Posted on August 02, 2010
Sometimes the plain language of a statute really is dispositive. Mostly.The Post Office thinks that one of its letter carriers, Henry Monday, has been stealing mail. So they send a "birthday card" with $40 in it to one of the people on his route. They're right; he opens the letter and steals the $40, and uses it to buy a snack at a local liquor store...

Eid v. Alaska Airlines (9th Cir. - July 30, 2010)

Posted on July 30, 2010
Alaska Airlines generally gets very positive reviews. But not in this Ninth Circuit opinion.I think that Chief Judge Kozinski writes a "fair and balanced" opinion here, and one that's more persuasive than the dissent, authored by Judge Otero (sitting by designation)...

In Re Marriage of Guo and Sun (Cal. Ct. App. - July 28, 2010)

Posted on July 29, 2010
It's sweet that the two of you went to Las Vegas on Valentine's Day, 2001, and got married. It's an impulse, I know, but one from the heart.The next day, the husband filed a petition to dissolve his marriage. To his first wife.Problem. You might have wanted to do those in reverse order...

People v. Perez (Cal. Supreme Ct. - July 29, 2010)

Posted on July 29, 2010
When you spontaneously decide to do a drive-by shooting, you might want to make sure that the group of eight people who you think look like opposing gang members really are who you think they are. And not actually police officers.Because police officers don't like getting shot at...

People v. Wong (Cal. Ct. App. - July 28, 2010)

Posted on July 28, 2010
Let's see what I learned from this opinion:(1) Kaiser spends $9 million in Southern California to "influence" the community. This basically entails buying meals for government officials and others and taking them to sporting events. Oh, yeah, and buying the L...

Alliance for the Wild Rockies v. Cottrel (9th Cir. - July 28, 2010)

Posted on July 28, 2010
There's a forest fire in Montana. Trees are damaged, and some are going to die. So the Forest Service wants to allow a timber harvest of some of the dead and dying trees.That makes sense to me. Sure, they're going to need to build some temporary roads to do the logging...

Geo-Energy Partners 1983 Ltd. v. Salazar (9th Cir. - July 27, 2010)

Posted on July 27, 2010
It's not always easy reading every published decision. Sometimes you've got really, really long ones. Others begin: "This appeal presents the question of whether the procedures for periodic revision of units in the 1988 Amendments to the Geothermal Steam Act apply to pre-amendment contract provisions...

Rahimzadeh v. Holder (9th Cir. - July 26, 2010)

Posted on July 26, 2010
It's not too hard to avoid deportation to Iran if you're a Muslim who converted to Christianity and proselytize. They don't really like that there. We won't do that to you.The Netherlands, however, is another matter. That's a much tougher sell. Amesterdam ain't exactly Tehran.

In Re Shippman (Cal. Ct. App. - June 8, 2010)

Posted on July 26, 2010
Robert Shippman is a regular guy. He "was raised on a chicken farm in central California by his mother and father with 10 older siblings. Petitioner?s parents remained married, and provided well for their large family. His father worked as a rancher and then, upon his retirement, became a local pastor...

Davis v. Superior Court (Cal. Ct. App. - July 22, 2010)

Posted on July 23, 2010
I never understand why they ask the guy "Do you bang?" (i.e., if the person is in a gang) when the questioner is going to shoot the victim regardless of what he says.I read cases like this all the time. What's the right answer that avoids you being killed? If you say "No," as here, you get shot...

People v. Wilson (Cal. Ct. App. - July 13, 2010)

Posted on July 22, 2010
What counts as "immediate"? Around 10 months, apparently. Even in the context of a criminal statute. Which is why Anthony Wilson is going to spend the next 25 years to life in prison. That plus, of course, the fact that he told a corrections officer that he'd "blast" him after he got out of prison in 10 months...

Mattel v. MGA (9th Cir. - July 22, 2010)

Posted on July 22, 2010
Not a good day for Barbie.Mattel, which ows Barbie, sued MGA, which owns the "Bratz" line of dolls. Mattel obtained a favorable jury verdict at trial, although it received only $10 million of the $1 billion it requested. But Mattel won an even greater victory thereafter when the district court granted Mattel wide-ranging equitable relief that essentially awarded Mattel control over the vast majority of the Bratz line...

People v. Khaled (App. Div. - July 22, 2010)

Posted on July 22, 2010
Next time you get your picture taken at a red light camera, use this opinion to get out of the fine.I'm a little bit dubious about the reasoning here, and am not sure there's really a Confrontation Clause problem here, but I'm happy to take advantage of the thing...

County of San Diego v. Gorham (Cal. Ct. App. - July 21, 2010)

Posted on July 21, 2010
There's always been a part of me that's profoundly concerned with a lot of default judgments. We routinely base them -- as we must -- on declarations of service. The affidavits of service almost always look fine. But what if the process server is simply lying? Wouldn't it be totally easy just to say you've served someone, and instead go out and have a beer? The consequences for the defendant are severe, and how could we ever catch the process server in the lie?Here's one way...

People v. Glazier (Cal. Ct. App. - July 19, 2010)

Posted on July 20, 2010
Here's a good hypothetical. Something appropriate for the California bar exam, or maybe a class on California criminal law:"Defendant hates his next-door neighbor. While the neighbor is remodeling his house, and living elsewhere, defendant stands on his own property, uses a paint sprayer to spray gasoline into the crawl space of his neighbor's home, and lights it on fire with a 20-foot torch, burning the house to the ground...

People v. Knightbent (Cal. Ct. App. - July 19, 2010)

Posted on July 20, 2010
I occasionally make fun of various appeals that concern trivial sums, particularly when the transaction costs of litigating the matter completely swamp what's at stake.I'm glad to see the Court of Appeal make a similar mention.Justice Raye begins the opinion by saying: "In this case, the services of an appointed counsel and a deputy attorney general, together with three justices and staff of this court, are applied to the resolution of a single issue: whether the court's order imposing a $34 fine on defendant was proper under Penal Code section 1202...

VISA Int'l v. JSL Corp. (9th Cir. - June 28, 2010)

Posted on July 19, 2010
The web site "evisa.com" illegally dilutes VISA's trademark, the Ninth Circuit holds in an opinion written by Chief Judge Kozinski. An opinion that, characteristically, is both well-written and makes sure to include a plethora of cultural and brand references...

La Serena Properties v. Weisbach (Cal. Ct. App. - July 15, 2010)

Posted on July 16, 2010
I agree with the Court of Appeal here. You can't sue an arbitrator for failing to disclose conflicts. Even if the failure to disclose as allegedly "corrupt" or part of a "conspiracy."Your proper remedy is limited to vacating the arbitration award. Which is precisely what in fact transpired here...

People v. Alexander (Cal. Supreme Ct. - July 15, 2010)

Posted on July 15, 2010
There's virtually no physical evidence at all. The eyewitness identifications are shaky. The crime was unsolved for over a decade. It was a random shooting for inexplicable reasons.But the person shot and killed was a Secret Service agent. On duty...

Rhodes v. Henry (9th Cir. - July 15, 2010)

Posted on July 15, 2010
Paul Rhodes is charged with and convicted for the capital crime of first degree murder of -- as well as the kidnapping, robbery, and rape of -- Susan Michelbacher. He's sentenced to death.Seems to me like also convicting the guy for "the infamous crime against nature" is sort of piling on, no?Plus, maybe Idaho could make it's criminal code a little more "hip" -- as well as constitutional -- by changing the statute...

U.S. v. Hinkson (9th Cir. - July 14, 2010)

Posted on July 14, 2010
Rare.Judges usually don't change their mind. Especially in a high-profile en banc case.But here's what Chief Judge Kozinski says this morning, in a case that I've talked about on several occasions (here, here and here), and that -- as I've mentioned -- has been unusual from the outset:"I continue to agree with, and join, that portion of the opinion explaining how we review for abuse of discretion, but now disagree with the application of this standard to the case before us...

In Re Girardi (9th Cir. - July 13, 2010)

Posted on July 13, 2010
Here's another spanking.Thomas Girardi and Walter Lack are high-profile California lawyers. Amongst their other legal pursuits, they (and their firms) attempted to enforce a $489 million default judgment allegedly entered by a court in Nicaragua against Dole Food and Shell Chemical based upon the effects of a particular pesticide upon banana plantation workers...

People v. Mesa (Cal. Ct. App. - July 13, 2010)

Posted on July 13, 2010
The opening paragraph of this opinion reads:"In separate incidents, Tommy Angel Mesa, a gang member, shot and severely wounded two complete strangers. He used the same gun in both incidents, and later was found in possession of the gun and several rounds of ammunition...

Clayworth v. Pfizer (Cal. Supreme Ct. - July 12, 2010)

Posted on July 12, 2010
You don't see many state antitrust decisions, much less on big-ticket items like whether there's a pass-through defense (which we settled in the federal context with Hanover Shoe) and how you allocate damages in indirect purchaser litigation (which we don't allow in federal court pursuant to Illinois Brick)...

Reeves v. MV Transportation (Cal. Ct. App. - July 9, 2010)

Posted on July 09, 2010
Which one of these is the better applicant?The Job: "National public transportation company, with its corporate offices in Fairfield, California seeks an experienced attorney in traditional labor law and employment litigation to report to the General Counsel/Chief Legal Officer...

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