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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

Safaryan v. Barr (9th Cir. - Sept. 17, 2020)

Posted on September 17, 2020
You see people kicked out of the country for a lot of things. You generally don't see 'em kicked out for road rage on the 101-405 interchange.Eduard Safaryan comes to the U.S. on a tourist visa from Armenia in 1999. He overstays his visa, finds love, and marries his wife in Los Angeles in 2000...

Bare v. Barr (9th Cir. - Sept. 16, 2020)

Posted on September 16, 2020
Today's Ninth Circuit opinion mentions that the petitioner, Ibrahim Farhab Bare, stowed away on a ship and came to the United States from Somalia, at which point he was granted asylum. During subsequent years, he committed various crimes, and the government now seeks to deport him...

Burchell v. Loma Linda School of Medicine (Cal. Ct. App. - Sept. 10, 2020)

Posted on September 15, 2020
Particularly in retrospect, Defendants might have wanted to settle this one when they had the chance:"In 2014, Burchell sought medical care after discovering a small lump in his scrotum. At the time, he was 41 years old. He was experiencing some scrotum pain but had no complaints about pain, deformity, or disfunction of his penis, and he reported that he was sexually active...

Mayron v. Google (Cal. Ct. App. - Sept. 9, 2020)

Posted on September 15, 2020
It's good to be Google. Because you get opinions like this one.With which I couldn't agree less.Section 17602 of the Business and Professions Code places strict limits on "automatic renewals" -- subscriptions, monthly fees, etc. That's a good law...

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People v. Superior Court (Frezier) (Cal. Ct. App. - Sept. 11, 2020)

Posted on September 14, 2020
Are we seriously doing this?Christopher Frezier has serious mental health issues. The Escondido police department arrested him after his mother complained that he was behaving erratically and claimed that the family cat was "evil." When the police came, they found Mr...

People v. Henderson (Cal. Ct. App. - Sept. 14, 2020)

Posted on September 14, 2020
It's struck me as strange as I was reading it that this opinion referred to the defendant by his last name (Henderson) and the key male witness the same way (Aguilar), yet referred to the key female witness by only her first name (Tiffany).It may perhaps be that the panel doesn't know Tiffany's last name...

Anderson v. Neven (9th Cir. - Sept. 11, 2020)

Posted on September 11, 2020
Come on, Judge Wardlaw. Stop holding back. Tell us what you really think.Judge Wardlaw authored an unpublished memorandum disposition. Her new colleague Judge VanDyke, who joined the court earlier this year, pens today a published dissent from the refusal to hear the case en banc...

Mai v. United States (9th Cir. - Sept. 10, 2020)

Posted on September 10, 2020
Not surprisingly, eight of the conservative judges on the Ninth Circuit (including all but three of the Trump appointees) dissent from the refusal to rehear en banc the latest Second Amendment opinion, which held that individuals who had been involuntarily committed to a mental health facility do not possess a constitutional right to own guns...

U.S. v. Herrera (9th Cir. - Sept. 9, 2020)

Posted on September 09, 2020
Two brothers create fake companies with fake employees, and then file fake wage reports with the California Employment Development Department (EDD) that report fake earnings for these fake employees. Then the fake companies "lay off" the fake employees and the fake employees file for and collect unemployment benefits from the EDD, which the brothers then split...

Rodriguez v. Newsom (9th Cir. - Sept. 8, 2020)

Posted on September 09, 2020
I'm happy for lawyers to do pro bono work. Thrilled, even. Cranking out well-written briefs for non-paying clients is good for the soul (even if not the pocketbook).So the fact that there are 30-plus lawyers listed on the caption as representing the plaintiffs in this public interest suit doesn't bother me...

People v. J.E. (Cal. Ct. App. - Sept. 8, 2020)

Posted on September 08, 2020
There's a lot to be said for Justice Streeter's partial dissent in this case. It demonstrates insight, compassion and a keen sense of practical reality -- attributes that are wonderful to see in an opinion.But I'm still not entirely persuaded.Justice Streeter makes a doctrinal point as well as a policy point...

Caliber Paving Co. v. Rexford Industrial (Cal. Ct. App. - Sept. 1, 2020)

Posted on September 03, 2020
I had to go back and reread this opinion four times -- the fact section, anyway -- before I could follow exactly who was what and the role each party played. Once I finally understood the scoop, my initial impression about the merits somewhat changed...

U.S. v. Cano (9th Cir. - Sept. 2, 2020)

Posted on September 02, 2020
It's a pretty powerful paragraph by Judge Bennett, joined by five other Republican appointees to the Ninth Circuit. They dissent from the refusal to rehear en banc a case holding that while we routinely search for contraband at the border (drugs, etc...

People v. Murillo (Cal. Ct. App. - Sept. 1, 2020)

Posted on September 01, 2020
Here's proof that times do change. Or at least change from my own personal experiences.?During the evening of April 12, 1992, 15-year-old Mirna G., 14-year-old Gabriel N. and defendant gathered at a park with a number of others. At some point, it was decided that a group of these individuals would do a ?beer run,? meaning to take beer from a store without paying for it...

Jaimes-Cardenas v. Barr (9th Cir. - Sept. 1, 2020)

Posted on September 01, 2020
I understand that when we write briefs as lawyers, we all try to put both the facts and our clients in the best possible light. Judges sometimes do a similar thing. They're not advocates, but nonetheless, when they write an opinion that "advocates" for a certain position, sometimes the opinion is a bit "tilted" as to what facts are conveyed and how they're set forth...

U.S. v. Fasthorse (9th Cir. - April 1, 2011)

Posted on April 01, 2011
Don't have sex with someone who's passed out. Even if she's been partying with you. Otherwise you'll go a decade without partying and sex.No, that's no April Fool's joke. It's good advice.

Monty v. Leis (Cal. Ct. App. - March 30, 2011)

Posted on March 31, 2011
It's pretty rare to read a unanimous opinion totally outside my areas of interest with which I strongly disagree.Here's one.To even state the question, in my mind, is to answer it: Can a corporation with articles of incorporation that limit the number of shares to X nonetheless grant shares in excess of X and then allow those excess shares to vote to approve retroactively the increase in shares?No...

People v. Overland (Cal. Ct. App. - March 30, 2011)

Posted on March 30, 2011
You don't get many appeals for seat belt violations. Why? Because it's a penny-ante fine. Not worth hiring an attorney. Definitely not worth appealing.For normal people, anyway. Here's the exception.Why does Barbara Overland appeal? Because she thinks she's right, obviously...

People v. Moon (Cal. Ct. App. - March 29, 2011)

Posted on March 29, 2011
Chutpah.William Moon gets drunk, smokes some pot, and drives through a residential area. At over 100 m.p.h. Not surprisingly, he crashes his car. Killing his passenger. Moon's BAC is .19.So he's convicted of second degree murder...

Cafasso v. General Dynamics C4 Systems (9th Cir. - March 24, 2011)

Posted on March 28, 2011
As an analogue to the conversational principle "Whoever first compares the other side to Hitler loses the argument," I hereby propound the following litigation principle:"Whoever attempts to file a proposed pleading in excess of a full ream of paper will lose the lawsuit...

King v. Trujillo (9th Cir. - March 28, 2011)

Posted on March 28, 2011
Sometimes the urgent need to represent your client means that you file things that have very little likelihood of success. Like here.It's the best the lawyers can come up with. But far from good enough. It's a petition unanimously rejected by the panel...

Singh v. Holder (9th Cir. - March 25, 2011)

Posted on March 25, 2011
Appropriately enough given "March Madness" in basketball, Judges Kozinski and Noonan present for your consideration: The Battle of Literary Maxims.The question is whether we can judge harshly a husband in an immigration case who remains silent when his wife lies; e...

U.S. v. Buenrostro (9th Cir. - March 23, 2011)

Posted on March 24, 2011
Let me try my hand at writing a concurrence to this one:Martin, J., concurring:I can't fault my colleagues for their holding. That's what the statute indeed means.But let's just be clear what we're saying. As well as what we've come to...

People v. Gann (Cal. Ct. App. - March 24, 2011)

Posted on March 24, 2011
I felt something in common with this case. Though I hope not too in common.The relevant people live in San Diego. Just like me. It's a father and his two kids. The daughter lives at home (she's 17), and the son goes to college in Arizona...

People v. Yarbrough (Cal. Ct. App. - March 23, 2011)

Posted on March 23, 2011
Here's the opening paragraph of this opinion:To which I thought: "Wow. That's mighty big of you, Court of Appeal. You're willing to follow the express and unambiguous holding of the California Supreme Court. You must be mighty proud of yourself...

Darensburg v. MTC (9th Cir. - Feb. 16, 2011)

Posted on March 22, 2011
We're already a post-racial society. At least among the young. In San Francisco.So says Judge Noonan.(I somewhat mock it. Though he's actually got an interesting point.)

U.S. v. Fernandes (9th Cir. - March 14, 2011)

Posted on March 21, 2011
You went into a dorm room where an intoxicated co-worker lay on her bed, unbuttoned her blouse, and fondled and kissed her breasts. You don't have a criminal record. The district court thought your offense was only worth probation. It didn't even think you should register as a sex offender, so it didn't order it...

People v. Moore (Cal. Ct. App. - March 17, 2011)

Posted on March 18, 2011
The Court of Appeal repeatedly tells trial courts not to try to explain the concept of "beyond a reasonable doubt" because it just mucks things up and results in reversals. Using the immortal words of John Lennon, the Court of Appeal repeatedly says: "Let it be...

People v. Lee (Cal. Supreme Ct. - Feb. 24, 2011)

Posted on March 17, 2011
One of the problems with killing people is deciding who lives and who dies. We don't want this decision to be entirely arbitrary -- just left to the discretion of a particular 12-person jury -- so we establish rules. But wholly apart from whether those rules are applied consistently across juries, there's also a question about the rules themselves...

Khatib v. County of Orange (9th Cir. - March 15, 2011)

Posted on March 16, 2011
Last year, Judge Trott authored an opinion holding that an extremely large pretrial holding facility ("jail") in Orange County was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act and that it was thus not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf)...

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