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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

Walgreen v. City and County of San Francisco (Cal. Ct. App. - June 8, 2010)

Posted on June 09, 2010
When was the last time you saw a statute regulating economic transactions struck down on rational basis review?Yeah. I thought so. Freakishly uncommon.But check this one out.Admittedly, the Court of Appeal doesn't strike down the statute here. But it comes darn close, and not only reverses the trial court's dismissal, but its holding and analysis makes it very likely that the statute gets found unconstitutional on remand...

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

Posted on June 09, 2010
The first sentence of this opinion begins: "Shelbe Wilkinson was found to be a mentally retarded person pursuant to Welfare and Institutions Code section 6500."Which somewhat surprised me. Since you don't hear the words "mentally retarded" much in the modern era...

People v. Weber (Cal. Ct. App. - Jne 7, 2010)

Posted on June 08, 2010
Let's everyone get real.(1) I agree with Justice Sims that Joseph Weber was competent and validly wanted to represent himself. He's got a right to do that. He clearly wanted to. The fact that Weber kept interrupting the judge during the Faretta admonitions doesn't matter...

Lahiri v. Universal Music and Video Dist. Corp. (9th Cir. - June 7, 2010)

Posted on June 07, 2010
A lawyer files a copyright case. Who owns the copyright is governed by the law of India, and the lawyer relies on a foreign law expert. Nonetheless, the district court sanctions the lawyer for over a quarter million dollars.And the Ninth Circuit affirms, holding -- in a published opinion -- that there was "clear and convincing" evidence of the attorney's subjective bad faith, and that the quarter-million-plus sanction award was not excessive...

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Mickey v. Ayers (9th Cir. - June 7, 2010)

Posted on June 07, 2010
Douglas Mickey is sentenced to death in California even though there's "substantial evidence" in mitigation. The trial court grants a habeas petition with respect to the sentence due to ineffective assistance of counsel, but denies the petition with respect to the guilt phase...

Maxwell v. Roe (9th Cir. - May 20, 2010)

Posted on June 04, 2010
You've got to have a competency hearing whenever there's any "bona fide doubt" regarding whether a defendant is competent to stand trial. Here's what happens to Clifton Maxwell: "At the time of trial, Maxwell had a history of mental illness, frequently refused to take his prescribed antipsychotic medications, was unable to verbally or physically control himself in the courtroom, and exhibited increasingly paranoid and psychotic behavior that impaired his communication with defense counsel and reasoning regarding his defense...

Chude v. Jack-In-The-Box (Cal. Ct. App. - May 27, 2010)

Posted on June 03, 2010
You'd have thought that after all the terrible publicity about the McDonald's "hot coffee" lawsuit that no one would bring a nearly identical action against Jack-in-the-Box. Nope. You'll notice, however, the strikingly different result here. This case doesn't even get to trial, and is largely dismissed on a motion for summary judgment...

People v. Chung (Cal. Ct. App. - June 3, 2010)

Posted on June 03, 2010
I'm not overly aggressive when it comes to claiming "exigent circumstances" that allegedly allow a police officer to barge into your home without your consent.But when the neighbor below you in the condo calls the cops because she hears "the high pitched crying of a dog in pain" in your unit, and when you tell the police that you don't have any dogs but they hear the sound of a dog wimpering, it seems to me like the police can enter...

San Joaquin County HRA v. Marcus W. (Cal. Ct. App. - June 2, 2010)

Posted on June 02, 2010
What would you do in this one?Marcus W. is a sixteen-year old minor who has sickle cell anemia and has had multiple strokes as a result, starting when he was a very young child. The standard treatment for people in his condition is periodic blood transfusions...

Garber v. Superior Court (Cal. Ct. App. - May 13, 2010)

Posted on June 01, 2010
While reading this case, I came up with the following not-so-hypotheticals. Particularly for my gun-loving friends.Assume that the Supreme Court decides in McDonald that the Second Amendment applies to the states. Consistent with Heller, which of the following would be prohbited by the Second Amendment:(A) A state flatly prohibits residents from possessing firearms...

Haight Ashbury Free Clinics v. Happening House Ventures (Cal. Ct. App. - May 26, 2010)

Posted on May 31, 2010
It's Memorial Day. A holiday for everyone in the judiciary. But not necessarily for those in private practice.So let's look back in a different realm. One that's closer to what most of us do.As you can tell even from the caption on the complaint, it ain't the 60s anymore...

Scalzo v. American Express (Cal. Ct. App. - May 28, 2010)

Posted on May 28, 2010
This seems an easy one to me. Notwithstanding a contrary ruling by the trial court below, which granted the defendant's anti-SLAPP motion and awarded attorney's fees to the moving party.You can't call American Express to get credit card information on someone else's account...

Carver v. Holder (9th Cir. - May 27, 2010)

Posted on May 27, 2010
You don't see AUSA's, of all people, typically sue for age discrimination. Much less prevail.Here's the exception.Mind you, John Carver doesn't like the way the DOJ has calculated his back pay, and on that issue, loses in the Ninth Circuit. But he still gets an order that requires that the DOJ hire him as well as over a quarter million bucks...

Ladd v. Warner Bros. Entertainment (Cal. Ct. App. - May 25, 2010)

Posted on May 26, 2010
Two lessons.First, if you're a filmmaker, studios sc**w you. Admittedly, I know nothing about the "industry," but the result of this case strikes me as entirely right. Here, Alan Ladd develops (and has "points") in Blade Runner, Body Heat, Night Shift, Tequila Sunrise, Outland, Chariots of Fire, and Police Academy 1-6...

Chino Commercial Bank v. Peters (Cal. Ct. App. - May 25, 2010)

Posted on May 26, 2010
Tell me what you'd do in this hypothetical.In June 2010, a new client (from Hong Kong) contacts you and wants you to do some work for them. They're being acquired. Or sued. Or thinking about litigating. Whatever. Something fairly big, and that will surely involve a lot of attorney's fees...

People v. Ligons (Cal. Ct. App. - May 13, 2010)

Posted on May 25, 2010
I know you want to get out of your jail cell. It's no fun. Never is. I get it. But it's not going to help for you to try to forcefully push your way out of your jail cell. The officers you're pushing aren't going to like it. The judge isn't going to like it...

Lunbery v. Hornbeak (9th Cir. - May 25, 2010)

Posted on May 25, 2010
Her husband was killed by a single blow to the head. She had no real alibi. She confessed to the murder.Surely she's guilty, right? Especially after the jury so finds. Even more so after the California appellate courts deny her appeal. Obvious, right?Think again...

Anthoine v. North Central Counties Consortium (9th Cir. - May 24, 2010)

Posted on May 24, 2010
In this retaliation case, the Ninth Circuit says: "During the seventeen years Anthoine worked at NCCC, he was hardly a model employee." There's an understatement.For a general tenor of Anthoine's work attitude, I'll merely relay one fact: When his supervisor gave him a verbal warning in 2005, Anthoine submitted a 207-page (!) document in response...

In Re Amber M. (Cal. Ct. App. - May 24, 2010)

Posted on May 24, 2010
Here's a story you hear every day.It's a dependency case. Mother and Father are in a long-term relationship (six years) and have two kids together -- a one-year old and a two-year old -- but never marry. Father's in the Navy, and has been there for 13 years...

People v. Roberts (Cal. Ct. App. - May 21, 2010)

Posted on May 21, 2010
Google better watch out. There are some things you can only learn in the pages of the California Appellate Reporter.Because I read a lot of cases, I'm fairly hip on modern lingo. (I use the terms "hip" and "lingo" to prove that I'm in fact totally not hip on modern lingo...

Arthur v. DMV (Cal. Ct. App. - May 21, 2010)

Posted on May 21, 2010
The Arizona anti-immigration law has gotten a lot of media play. One of the themes of the opponents of the law is that it's a bad idea to allow the government to stop people without suspicion to demand: "Papers, please." Something that reminds us of some other governments throughout history that we'd rather not emulate...

Rodriguez v. Maricopa County Comm. College (9th Cir. - May 20, 2010)

Posted on May 20, 2010
If you're, say, the Chief Judge of the Ninth Circuit, and are very dubious about speech restrictions in the workplace in the name of preventing sexual or racial harassment, you couldn't make up a better case in which to articulate your vision than this one...

Grove v. Wells Fargo (9th Cir. - May 20, 2010)

Posted on May 20, 2010
Two things.First, how could Judge Percy Anderson (in the C.D. Cal.) get this one wrong? Prevailing parties can recover costs. They can also recover (in an appropriate case) attorney's fees. And that latter item includes otherwise non-recoverable costs; e...

Lockton v. O'Rourke (Cal. Ct. App. - May 20, 2010)

Posted on May 20, 2010
You can learn four lessons from this opinion:(1) Be careful what you say in a verified complaint. It can come back to bite you. Even if you figure out later that you should have said something else and amend the complaint.(2) If you're an attorney or law firm, make sure your fee agreement has a clause that says that the prevailing party gets its attorney's fees, including the value of any time spent by the law firm and its lawyers defending itself...

Edwards v. Wells Fargo (9th Cir. - May 19, 2010)

Posted on May 19, 2010
Some authors of appellate opinions like to try make things sound easy -- and crystal clear -- even though they're anything but.That's not my preference. When things are tough, and when reasonable minds can differ, I like it when an opinion addresses both sides and seriously confronts (and admits) the complexity of the issues...

People v. Vang (Cal. Ct. App. - May 17, 2010)

Posted on May 18, 2010
Rarely do I come across a new drug. Sure, every day I read cases about cocaine, marijuana, methamphetamine, heroin, esctasy, etc. Then there are the occasional cases about less commonly used drugs: LSD, GHB, psilocybin, oxycodone and fentanyl, etc. Then there's the rare case about the truly unusual drugs: ibogaine, peyote, STP and the like...

People v. Otubuah (Cal. Ct. App. - May 6, 2010)

Posted on May 18, 2010
The Court of Appeal publishes this originally-unpublished opinion. Which is fine. But let's be careful when we do so. Page three, second paragraph: "At sentencing, count 1 was set as the principle count."I think you mean something slightly different.

Kirk v. First American Title Ins. Co. (Cal. Ct. App. - May 6, 2010)

Posted on May 17, 2010
I didn't catch it when the first opinion came out. It seemed possible, after all.But I like the amendment to the opinion. Which states, in its entirety:"On page 5, line five, delete the words 'hundreds of,' and replace them with the word 'multiple.' As modified, the sentence beginning at the end of line four reads: 'The First American team defended multiple depositions and reviewed hundreds of thousands of pages of documents...

People v. Contreras (Cal. Ct. App. - May 10, 2010)

Posted on May 17, 2010
When they're trying to keep you locked up as a "mentally disordered offender," here are some things you definitely do not want the staff psychologist to say about you:"Mohapatra testified Contreras's schizophrenia manifested in his refusal to eat because he believed he was not going to be able to swallow, his thoughts that the hospital staff was going to break his penis, and his thoughts that his arms and leg were going to fall off because of his tattoos...

Laclette v. Galindo (Cal. Ct. App. - May 17, 2010)

Posted on May 17, 2010
Here's a good reason why, after settling a case on behalf of a client, you should make sure to send your client a letter that expressly says that the representation is over and that you'll do no further work on their behalf.Otherwise, even if you do absolutely nothing during the next several years ...

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