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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

FTC v. Neovi (9th Cir. - May 14, 2010)

Posted on May 14, 2010
Scams are a lot easier to pull when ostensibly legitimate companies are totally willing to help out.Fortunately, after six years of continuous operations, and over 150,000 bad checks that totaled over four hundred million dollars, the FTC finally stepped in...

Emery v. Clark (9th Cir. - May 13, 2010)

Posted on May 13, 2010
I think the California Supreme Court may well say "No." Indeed, perhaps should.The Ninth Circuit's certification request here makes facial sense. California law on the issue is indeed unclear. Reasonable minds might differ. Comity, and modesty, thus counsel in favor of certifying the questions...

Valladolid v. Pacific Operations Offshore (9th Cir. - May 13, 2010)

Posted on May 13, 2010
Roustabout.I didn't have a very good sense of what that word means. But it definitely had a slightly negative connotation to me. If I were to use it in a sentence, it'd have been "That damn roustabout!"A floater. A transient. A rabble-rouser (if I had to use r-words)...

Ron Burns Const. Co. v. Moore (Cal. Ct. App. - May 11, 2010)

Posted on May 12, 2010
How many times have you relied on the promise of an opposing counsel; in particular, for an extension of time?Plaintiff did so here, agreeing with defendant (through counsel) to extend the time to file a motion for attorney's fees on appeal while the parties tried to resolve the matter informally...

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People v. Douangpayna (Cal. Ct. App. - May 11, 2010)

Posted on May 11, 2010
I'd have done this one differently.A guy (Bansa Douangpayna) hits a guy over the head with a beer bottle in a bar fight. That's cool in the movies, but in the real world, we call that "assault with a deadly weapon." Defendant testifies at trial, but he's got two felony priors, so we can impeach him with those...

People v. Branch (Cal. Ct. App. - May 5, 2010)

Posted on May 11, 2010
You've been arrested for pimping a 15-year old. This is not going to be good for you.But you know how you can make it worse? Call your mother from jail and say, on a recorded line: "?I don't give a f**k how much time they give me, when I get up out of here, something happening to that b***h...

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

Posted on May 10, 2010
(1) Don't gamble more than you can easily afford to lose. E.g., $20,000.(2) If you forget (1), do not steal the $20,000 from your wife to pay off your losses.(3) If you forget (1) and (2), and drunk and despondent about your plight, the solution is not to take off your necktie and strangle your wife...

Broney v. Calif. Comm. on Teacher Credentialing (Cal. Ct. App. - May 6, 2010)

Posted on May 10, 2010
Does three DUI's justify revoking a teacher's license? What if the teacher is, by all accounts, really, really good? And the DUIs are in 1987, 1997 and 2001? And are all on the weekend, with no evidence -- whatsoever -- that she ever, ever drinks on the job or is hungover or the like...

U.S. v. Mousavi (9th Cir. - May 5, 2010)

Posted on May 07, 2010
Don't do business with Iran. Or, if you do, definitely don't do it for a piddly $50,000.It's not worth it. At all.

Gonzalez v. Holder (9th Cir. - Feb. 8, 2010)

Posted on May 07, 2010
I guess this opinion is worth publishing. It's only two paragraphs. The first of which says that the petitioner, Nahum Gonzalez, had filed a petition asking that he not be deported, presumably because he didn't want to be sent away from his U.S. citizen wife and child...

Cuellar v. Joyce (9th Cir. - May 7, 2010)

Posted on May 07, 2010
"After Richard Joyce abducted his and Leyda Cuellar?s child from Panama, by way of Australia, Cuellar tracked him down in America and petitioned for the return of the child pursuant to the Hague Convention on the Civil Aspects of International Child Abduction...

People v. Norton (Cal. Ct. App. - May 5, 2010)

Posted on May 06, 2010
I think this is right.M.D. calls the police and says her boyfriend is vandalizing her car. The police arrive five minutes later and knock on M.D.'s door, at which point (after five or six knocks) the boyfriend opens the door and says to the police "What the f**k do you want?" Hmmm...

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

Posted on May 06, 2010
The defendant's not there. The defendant's lawyer isn't there. Indeed, one of the jurors isn't even there, having bailed for an interview. All you have are 11 jurors and stand-in lawyers.Do I really need to tell you that you can't take a verdict in that setting? Really?!Apparently so...

People v. Delgado (Cal. Ct. App. - April 29, 2010)

Posted on May 06, 2010
I'm certain that Gloria Delgado was a pain in the hospital's butt. Her son was paralyzed and at St. John's hospital on ventilator. She didn't like the care her son was given. She wanted him moved to a different hospital. She occasionally got overly excited...

U.S. v. Struckman (9th Cir. - May 4, 2010)

Posted on May 04, 2010
There's a fine line between reasonable suspicion and probable cause, and when you throw in concepts like curtilege and exigent circumstances, things get even more complicated.So today the Ninth Circuit reverses a criminal conviction on Fourth Amendment grounds...

U.S. v. Stever (9th Cir. - May 4, 2010)

Posted on May 04, 2010
It's rare to see an opinion that reverses a criminal conviction based upon the failure of the U.S. to provide discovery. But it happens.I must say that, in this case, I thank that Stever is probably guilty, and will be found as much even after the discovery is produced...

Franklin Mint v. Manatt Phelps & Phillips (Cal. Ct. App. - May 3, 2010)

Posted on May 04, 2010
It's not every day that the California Court of Appeal reverses the dismissal of a malicious prosecution action against an attorney. It's even less common when the reversal involves a claim of malicious prosecution against a big California law firm; here, Manatt Phelps...

Plata v. Schwarzenegger (9th Cir. - April 30, 2010)

Posted on May 04, 2010
Ah, prison. The freedom. The quality colleagues. The tasty food. The wonderful medical care. Let's just take a brief look at some of the findings mentioned by the Ninth Circuit, in an opinion that affirms putting the California Department of Corrections and Rehabilitation into receivership with respect to medical care for California inmates:"This class action was brought by California prisoners to challenge deficiencies in prison medical care that allegedly violated the Eighth Amendment and the Americans with Disabilities Act...

Khatib v. County of Orange (9th Cir. - May 5, 2010)

Posted on May 03, 2010
The federal Religious Land Use and Institutionalized Persons Act basically says that the state can't burden religious practices for people in an "institution" -- e.g., a prison. Souhair Khatib is a Muslim woman who was placed in a holding cell adjacent to the Orange County courthouse and ordered to remove her hijab (her headscarf)...

Arizona v. Harkins Amusement Enterprises (9th Cir. - April 30, 2010)

Posted on April 30, 2010
I completely agree with Judge Hug on this one.Does the ADA require movie theaters to help blind or deaf people watch movies? They could do so, after all. For deaf people, you could require "open captions," which is the text you see at the bottom of movies or on televisions in bars (i...

Silvaco Data Systems v. Intel (Cal. Ct. App. - April 29, 2010)

Posted on April 29, 2010
I wasn't particularly interested in the underlying merits of this opinion, which is what it is. But I did find interesting Justice Rushing's comments about (of all things) the appendix. Not something we generally discuss at length in an appellate opinion...

Oasis West Realty v. Goldman (Cal. Ct. App. - March 3, 2010)

Posted on April 28, 2010
Lawyers can speak and vote and petition with respect to public issues. Even if those views are directly contrary to the interests of a current (or former) client. And when they're sued for doing so, they can file an anti-SLAPP motion, get the lawsuit dismissed, and recover their fees...

People v. Escudero (Cal. Ct. App. - March 30, 2010)

Posted on April 28, 2010
Here's another one that I'll let speak for itself.Defendant's charged with molesting a 7-year old. Is it unfairly prejudicial to introduce evidence that he allegedly assaulted two adult women in their 30s after they got drunk and fell asleep? Nope. Not according to the Court of Appeal...

Estate of Kraus (Cal. Ct. App. - April 27, 2010)

Posted on April 27, 2010
Janice Kraus was unmarried and had no children, and created a will that left most of her money to the Make-A-Wish Foundation and the Regents of the University of California. She had a brother, David, whom she specifically disinherited, since (1) he had a temper, (2) she was afraid of him, and (3) he had previously pimped $160,000 from her...

People v. Navarrete (Cal. Ct. App. - Feb. 1, 2010)

Posted on April 26, 2010
I like this. Basically, all of it. The opinion, written by Justice Rubin. What the trial court, Judge Patrick Meyers (in LA), did. What the trial D.A., Robert Britton, did. Essentially what everyone did. With the exception of Detective Andrew Serrata...

Plummer v. Day/Eisenberg (Cal. Ct. App. - April 26, 2010)

Posted on April 26, 2010
That's a neat trick.Once a case settles, a check is made out to X, Y and Z. X and Z are law firms, but Z is former counsel. There's a dispute about fee allocation, and Z won't sign the settlement check unless Z gets paid what Z says Z's owed.So X signs the check, and transmits it to Z to cash, and instead of just one person signing on behalf of X, one person from X signs legibly and another person from X signs in a scrawl...

Fulton v. Medical Board (Cal. Ct. App. - April 23, 2010)

Posted on April 23, 2010
It's bad enough when you lose an appeal in a published opinion. It's public, it's got your name in it, and it's forever.But when your appeal is about your allegation that the California Medical Board shouldn't make public the information about your discipline (you resigned your medical license) and the events that led up to it (discipline by other states, malpractice judgment, etc...

People v. Mathers (Cal. Ct. App. - April 22, 2010)

Posted on April 22, 2010
Sometimes I don't get what people are thinking.Okay, so you deliberately wrote some bad checks. You opened up a checking account with $50, never made any more deposits, and wrote multiple bad checks on the account. That's fraud, but I understand it...

Hammad v. Holder (9th Cir. - April 22, 2010)

Posted on April 22, 2010
There's a downside to paying someone to marry you so you can get your green card. Not only is it criminal, but if you're caught, the next time you marry a U.S. citizen -- even if for real this time -- you're going to find it difficult to stay in the United States...

Union Steel Union v. Shell Oil (9th Cir. - April 21, 2010)

Posted on April 21, 2010
Some cases are pretty clear when you just remember some basic principles. So much so that it's somewhat surprising that any court could come out the other way.Let's take a case in which a plaintiff files a putative (uncertified) class action that's removed to federal court under the Class Action Fairness Act -- i...

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