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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

Toyota Motor Sales v. Tabari (9th Cir. - July 8, 2010)

Posted on July 08, 2010
There's such a thing as being too bright by half.Toyota wins an injunction in a trademark case against an online auto broker who's representing himself. The case goes up to the Ninth Circuit. The panel consists of Judges Kozinski, Fernandez and Randy Smith...

U.S. v. Graf (9th Cir. - July 7, 2010)

Posted on July 08, 2010
Here's why you shouldn't talk to the attorney for your employer. At least if you're not totally, one hundred percent squeaky-clean.Parenthetically, it's also why you shouldn't set up a fraudulent health insurance company. 'Cause 25 years in prison isn't anything to sneeze at...

Betz v. Trainer Wortham & Co. (9th Cir. - July 7, 2010)

Posted on July 07, 2010
Judge Gould writes a majority opinion that concludes by saying (in the process of remanding to the district court): "[W]e do not see how it can ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court?s decision and to remand for further proceedings in the light of the pertinent Supreme Court decision...

Lee v. Lampert (9th Cir. - July 6, 2010)

Posted on July 06, 2010
The state court violated your constitutional rights, you say? It directly caused your conviction, eh? Indeed, you're an innocent person languishing in prison as a direct consequence of these violations of your constitutional rights?We don't care. After a year, nothing you say matters...

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U.S. v. Johnson (9th Cir. - July 6, 2010)

Posted on July 06, 2010
Welcome back from your July Fourth holiday, Mssrs. Johnson and Heineman. You'll be happy to learn that the Ninth Circuit now has a decision in your appeal. Though I don't think you'll especially appreciate what Judge Silverman has to say about you. Because he's not exactly pulling any punches: "Defendants Kurt F...

Gilb v. Chiang (Cal. Ct. App. - July 2, 2010)

Posted on July 02, 2010
You can't get more timely than this.Yesterday, the Governator said that he was going to defer salary payments for state workers and pay them only minimum wage for now. The Controller said he wasn't going to follow this order because (inter alia) it's illegal...

Mundy v. Neal (Cal. Ct. App. - June 30, 2010)

Posted on July 01, 2010
You've got to try to settle the dispute before you file a lawsuit if you want attorney's fees. Even if a fee award is mandatory. At least if your lawsuit requests relief that the defendant can voluntarily provide after you file your lawsuit (e.g., constructing that handicapped-accessible space)...

In Re Ross (Cal. Ct. App. - July 1, 2010)

Posted on July 01, 2010
"Oh, wait. You in fact cited that case we said you didn't discuss?"Never mind, then.

People v. Honan (Cal. Ct. App. - June 29, 2010)

Posted on June 30, 2010
A guy walks into a sauna at a 24-hour fitness where another guy's in there talking on a cell phone. They're both in towels. The guy who walks in takes a seat and, looking and smiling at the guy on the cell phone, drops his towel and starts quasi-masturbating...

Stacey v. Rederiet Otto Danielsen (9th Cir. - June 29, 2010)

Posted on June 29, 2010
I'll be the first to admit that I know very little about maritime law. Sure, I'm in the Ninth Circuit, and yeah, I live near the ocean. But surfboards and kayaks are about as seafaring as I typically get.What are the rules for recovery in maritime actions when two ships collide? I may read all the published Ninth Circuit opinions, but truthfully, I don't really know...

People v. Hartsch (Cal. Supreme Ct. - June 28, 2010)

Posted on June 28, 2010
After needlessly killing two people in a car, Cisco Hartsch tells his confederate not to worry about it, because "it's not like they were important, like, if they were bankers or lawyers or anything like that."Which is good, I guess, if your jury consists entirely of bankers and lawyers...

Greenspan v. LADT (Cal. Ct. App. - June 25, 2010)

Posted on June 28, 2010
An arbitrator is hearing two cases against you. He decides the first one against you. The second one's pending. What should you do?Here's an example of what you should not do.Filing a lawsuit against the arbitrator as a means of trying to disqualify him ain't gonna work...

People v. Low & Gastello (Cal. Supreme Ct. - June 24, 2010)

Posted on June 25, 2010
Two opinions from the California Supreme Court (here and here) with the same fact pattern and to the same effect. Defendant gets arrested and brought to a jail. The police ask him: "Do you have any drugs on you? It's a felony to enter a jail with drugs...

Bomersheim v. Los Angeles Gay and Lesbian Center (Cal. Ct. App. - May 26, 2010)

Posted on June 24, 2010
"Defendant Los Angeles Gay & Lesbian Center (defendant or the Center) provides medical services in Los Angeles County. From January 1999 to March 2004 defendant treated with Bicillin C-R more than 600 patients presenting with confirmed syphilis infection or reported sexual contact with someone who was known or suspected to be infected with syphilis...

People v. Garcia (Cal. Ct. App. - June 23, 2010)

Posted on June 23, 2010
The day after Jane Doe breaks up with Garcia, Garcia goes to her house and entered through an unlocked front door. Garcia then had "intercourse with her while she was sleeping" and "t[ook] a picture with his phone camera of himself having sex with Doe...

Benson v. Superior Court (Cal. Ct. App. - June 22, 2010)

Posted on June 23, 2010
The coroner can keep your heart. At least in California. As long as he or she has a plausible reason to continue to diddle with it.

Thrifty Payless v. Mariners Mile Gateway (Cal. Ct. App. - June 21, 2010)

Posted on June 22, 2010
Here's what happens when you write a bad contract.Mariners Mile owns a fancy piece of commercial land in Newport Beach. It proposes to build a Rite-Aid store on the property, and enters into a lease with Thrifty for a specified rent. Mariners then starts to build the building...

Murdoch v. Castro (9th Cir. - June 21, 2010)

Posted on June 21, 2010
Here's a blistering Chief Judge Kozinski dissent. From a 6-5 en banc decision (though, more accurately, a 5-1-3-2, but with the top six in favor of one result and the bottom five in favor of the other) in which he's in the minority.Just to give you a tenor of the thing, here's his conclusion:"Today we become the only court in the country to hold that a state court may adjudicate a constitutional claim 'on the merits' by overlooking it, and then have its carelessness rewarded with AEDPA?s presumption that its adjudication was good enough for government work...

People v. Henry (Cal. Ct. App. - June 21, 2010)

Posted on June 21, 2010
Here's a funny twist: The Court of Appeal reading a concurring opinion that insults the lower courts as a holding that justifies the practice of the lower courts that was insulted.

Lucky United v. Lee (Cal. Ct. App. - May 28, 2010)

Posted on June 17, 2010
Litigation has gone on, up and down the Court of Appeal, since 1999. The latest saga involves many different proceedings that exclusively relate to cost and fee awards, with people fighting over hundreds of dollars, costs, interest, etc. Minor stuff in the scheme of things...

People v. Casas (Cal. Ct. App. - May 25, 2010)

Posted on June 16, 2010
Nothing new from the California Court of Appeal today, and two tiny orders is all we have from the Ninth Circuit. So let's just take a brief diversion to an opinion from last month to remind ourselves what a wonderful thing drugs are:"Defendant, Jorge Jose Casas, a salesman at a car dealership, used a trade-in vehicle to follow a customer home to collect the down payment, a process referred to as 'chasing...

Taylor v. Sisto (9th Cir. - May 25, 2010)

Posted on June 15, 2010
I'll be surprised if this one survives.Yes, it's strange. The California state court judge repeatedly told the jurors to leave all their life experiences in a metaphorical "box" outside the jury room when they were deciding the case. It was the judge's main theme...

Leu v. International Boundary Commission (9th Cir. - May 17, 2010)

Posted on June 15, 2010
Here's a modern-day Marbury v. Madison.Contrast to the original.

United States v. O'Donnell (9th Cir. - June 14, 2010)

Posted on June 14, 2010
Okay, so you haven't had an exceptionally wonderful morning. It's Monday, after all. Back to the grind.But did your Monday morning see the Ninth Circuit reinstate two criminal felony charges against you?That's how prominent Los Angeles attorney Pierce O'Donnell started his work week...

Blair v. Bethel School District (9th Cir. - June 14, 2010)

Posted on June 14, 2010
Name a situation -- if you can -- in which it's okay for a state actor to retaliate against someone for that person's expression of protected First Amendment speech; in particular, speech that concerns a public issue and does not cause disruption or any other untoward effects...

U.S. v. Bonds (9th Cir. - June 11, 2010)

Posted on June 11, 2010
Barry Bonds is going to have a much more enjoyable weekend thanks to the Ninth Circuit. Which this morning affirmed a hearsay ruling that's going to make his prosecution for making false statements to the grand jury very, very difficult.It's hard to prove that your results came back positive when the only dude who can confirm that the samples came from you -- the guy you gave 'em to -- refuses to testify...

Shin v. Holder (9th Cir. - June 11, 2010)

Posted on June 11, 2010
Mother's in the United States, and tells her unmarried children (in South Korea) that she's gotten a green card because she was a longtime hairdresser on a U.S. military base. The kids believe her, and accordingly apply to immigrate to the United States...

People v. Johnson (Cal. Ct. App. - June 9, 2010)

Posted on June 10, 2010
"Defendant, whose nickname was 'Mookie,' and the victim, Nicole Henderson, had grown up in the same neighborhood in Oakland and had been friends since Henderson?s teenage years in the late 1980?s. By 2004, they had become romantically involved, and defendant had moved in with Henderson and her two sons about two years before the events in question...

U.S. v. Villasenor (9th Cir. - June 10, 2010)

Posted on June 10, 2010
A car drives through the Calexico border station. It gets inspected at primary inspection. It get referred to secondary inspection. It gets dog-sniffed. Clean. It leaves.The car then heads north. The driver stops at a gas station, and talks on his cell phone for ten minutes, and goes to the restroom...

Munn v. Briggs (Cal. Ct. App. - June 10, 2010)

Posted on June 10, 2010
You can't sue someone for interfering with your expected inheritance under a will. At least in California. At least when you could have challenged the will in probate court (even though, if you did so, the no-contest clause would be a huge problem)...

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