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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

In Re Marriage of McManus (Cal. Ct. App. - Feb. 25, 2010)

Posted on March 24, 2010
The caption of this case is In Re Marriage of MacManus. Which is otherwise unexceptional. As is the issue in the appeal.But upon reading it, my mind harkened back to "The Usual Suspects". A wonderful film in which Stephen Baldwin plays Michael McManus and Kevin Spacey plays Roger "Verbal" Kint...

Amerigraphics v. Mercury Casualty Co. (Cal. Ct. App. - March 23, 2010)

Posted on March 23, 2010
Want to see an example of insurance bad faith? Something that even the trial court described as "really terrible," "really, really bad," "a disaster," "total disaster," and "a very, very, very solid case for punitive damages, as solid as I have ever seen in my time on the bench...

Compton USD v. Addison (9th Cir. - March 22, 2010)

Posted on March 23, 2010
"Addison received very poor grades and scored below the first percentile on standardized tests during her ninth-grade year in 2002-2003. . . . [She] perform[ed] at a fourth-grade level. In the fall of her tenth-grade year, Addison failed every academic subject...

People v. Townsend (Cal. Ct. App. - March 15, 2010)

Posted on March 23, 2010
Here's a combination that's never good: (1) delusional paranoia, and (2) an obsession with Molotov cocktails.Particularly in a guy who's previously been convicted of arson."Townsend's commitment offense in October 2006 involved possession of 'two unlighted Molotov cocktails...

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Xilinx v. CIR (9th Cir. - March 22, 2010)

Posted on March 22, 2010
Uh oh. It's an opinion by Judge Noonan. A concurrence by Judge Fisher. And a dissent by Judge Reinhardt. Look out! Here comes the battle of the century. High stakes. Critical principles. Vital constitutional liberties involving core ideological disputes...

In Re Marshall (9th Cir. - March 19, 2010)

Posted on March 19, 2010
Sorry, Anna Nicole Smith. (Or, more accurately, the spirit of Vickie Lynn Marshall, her 3-year old daughter Danniellynn Stern -- the heir to Anna Nicole Smith's estate -- and Larry Birkhead, the three-year old's DNA-established father.)No $450 million judgment for you...

U.S. v. Cha (9th Cir. - March 9, 2010)

Posted on March 18, 2010
We don't have a plethora of published Ninth Circuit opinions coming out of Guam. Interestingly, though, while I haven't run the numbers, my gestalt impression is that (1) almost all of the "forced sex trafficking" cases come from Guam, and (2) those types of cases make up a palpable fraction of the number of published opinions from Guam...

People v. Gamache (Cal. Supreme Ct. - March 18, 2010)

Posted on March 18, 2010
It's a California Supreme Court death penalty opinion. So I don't have to tell you how it's coming out, or what the vote's going to be. That you already know.But the one today has a twist. The California Supremes say, essentially: "I've got some good news, and I've got some bad news...

SIEU v. U.S. (9th Cir. - March 17, 2010)

Posted on March 17, 2010
I agree that when a statute says that a penalty of $20 a day "shall" be imposed upon a taxpayer that fails to timely file a tax return, except if there's a finding of reasonable cause, this penalty is mandatory. If, as here, the taxpayer doesn't timely file, and doesn't have reasonable cause, a district court can't reduce the penalty just because it seems a bit harsh...

In Re Moses (Cal. Ct. App. - March 16, 2010)

Posted on March 16, 2010
The Moses in this case is not exactly like the other Moses. Unless history somehow failed to record that the old Moses -- like the current one -- "consumed copious amounts of alcohol and . . . visited Willie Rhodes, whose brother had killed Moses's father in a gambling dispute five years before, [whereupon] Moses shot Rhodes once at close range, killing him, and fled...

Mike v. FTB (Cal. Ct. App. - March 5, 2010)

Posted on March 16, 2010
A couple of things I already knew, even from my relatively skimpy reading of Indian law over the years. First, states can't tax income that a Native American who resides on her tribe's reservation from activities conducted on the reservation. That makes sense...

Grotenhuis v. County of Santa Barbara (Cal. Ct. App. - March 15, 2010)

Posted on March 15, 2010
There are presumably many reasons why rich people transfer their home to "corporations" they control. Truthfully, I don't know what those reasons are. But I bet they have something to do with taxes and asset protection. In short, there are financial upsides to these deals...

D.C. v. R.R. (Cal Ct. App. - March 15, 2010)

Posted on March 15, 2010
Cases involving "X.X. vs. YY" are often interesting. This one is no exception.I recall reading about the underlying events somewhere. This is one of the lawsuits that followed.Essentially, a 15-year old actor-student at Harvard-Westlake posted a facebook page that some people might find pretentious...

People v. Puluc-Sique (Cal. Ct. App. - March 8, 2010)

Posted on March 12, 2010
Yes, Virginia, the California Attorney General's Office really did argue that the appeal should be dismissed because the fugitive disentitlement doctrine applies to a criminal defendant who was involuntarily deported. Fortunately, the Court of Appeal recognized the silliness of this argument...

Guggenheim v. City of Goleta (9th Cir. - March 12, 2010)

Posted on March 12, 2010
I feel bad repeatedly talking about en banc review during the last couple of days. I know I must sound like a broken record sometime.That said, it's an important component of the process.Here's a case that I said back in September would probably get taken en banc even though the panel opinion was joined by both Judge Bybee and Judge Goodwin...

Norse v. City of Santa Cruz (9th Cir. - March 12, 2010)

Posted on March 12, 2010
I talked about the original panel opinion here. Noting that it's rarely a good idea to give a Nazi salute, or to compare pretty much anything to the Holocaust.But we haven't heard the last of such time-honored practices. Because today the Ninth Circuit took the case en banc.

Newdow v. Rio Linda USD (9th Cir. - March 11, 2010)

Posted on March 11, 2010
Hopefully you didn't forget about the Pledge of Allegiance cases. Because they're not over. Sure, the Supreme Court reversed the Ninth Circuit's earlier invalidation of teacher-led recitations of the 1954 version of the Pledge, which includes the words "under God...

Newdow v. Lefevre (9th Cir. - March 11, 2010)

Posted on March 11, 2010
That money in your pocket is just fine.Rounding out the high-profile religion cases from today, the Ninth Circuit holds that the "In God We Trust" motto on U.S. coins and currency doesn't violate the First Amendment either.The Ninth Circuit holds Newdow's got standing to raise a claim to the contrary -- though lacks standing to object to the federal statute that makes "In God We Trust" the national motto -- but holds on the merits that there's no Establishment Clause violation...

Tijani v. Holder (9th Cir. - March 11, 2010)

Posted on March 11, 2010
There are a lot of great Ninth Circuit decisions today. But I want to mention this one, which will get less publicity, and thus may well be overlooked.Except by the Ninth Circuit itself. Since this one will, and should, go en banc.It's a perfect storm...

Gravillis v. Coldwell Banker (Cal. Ct. App. - Feb. 26, 2010)

Posted on March 10, 2010
Kenny Gravillis bought a home in L.A. for $500,000 using Coldwell Banker as his broker. After buying the house, he concluded that Coldwell Banker had done a terrible job, and had failed to disclose some significant known defects in the house, so he sued 'em...

Primiano v. Howmedia Osteonics (9th Cir. - March 10, 2010)

Posted on March 10, 2010
Here's a good primer -- as well as a holding -- on how to properly apply Daubert. Particularly, as here, to medical expert testimony.The opinion, by Judge Kleinfeld, is written like an old-time law review article. The kind of thing we don't see anymore...

Najmabdi v. Holder (9th Cir. - March 9, 2010)

Posted on March 09, 2010
How do you feel about deporting to Iran a 60-year old woman who's been in the U.S. for the last 23 years?If it matters, she's Westernized, has never committed a crime, studied fashion design while in the U.S., and is a small business owner who designs Western style clothing for Iranian women...

Rhodes v. Paskett & Henry (9th Cir. - March 8, 2010)

Posted on March 08, 2010
Paul Ezra Rhodes kills multiple people at various different times. Idaho sentences him to death multiple different times, and three of his appeals now reach the Ninth Circuit. Does he get relief?No, no, and not now (or, likely, ever).This is one person who's not likely to die of natural causes.

Lobo v. Tamco (Cal. Ct. App. - Feb. 24, 2010)

Posted on March 08, 2010
See if this fact pattern applies to you as well.I'll share how it looks like it works for me. I work at a university. I run or bike to work on occasion, but often drive. When I do, I drive my own car.My employer occasionally asks me to go to various off-campus locations...

Smith v. Mahoney (9th Cir. - March 5, 2010)

Posted on March 05, 2010
It's a death penalty case. In the Ninth Circuit. With a panel that consists of three Democratic appointees, none of whom have the name "Tallman" and one of whom has the name "Fletcher."No way the panel's going to affirm the death sentence, right?Wrong...

Coito v. Superior Court (Cal. Ct. App. - March 4, 2010)

Posted on March 04, 2010
With all due respect to Justice Kane, I'm going to have to agree with Justice Dawson on this one.It's a case that's important to pretty much every California attorney (or at least every California litigation attorney): Whether statements made by a witness and recorded by a lawyer (or her representative) are protected work product...

Mortimer v. Baca (9th Cir. - Feb. 8, 2010)

Posted on March 04, 2010
Imagine that you're innocent, but you can't make bail. Imagine further that you go to trial -- presumably as quickly as possible -- and are acquitted of all charges. You'd think that they'd then simply let you go home. That's what uniformly happens on television and in the movies, after all...

People v. Nitschmann (Cal. Ct. App. - March 3, 2010)

Posted on March 03, 2010
Until today, I hadn't thought about the fact that the Court of Appeal might well have repeated, non-remand-based exposure to a particular defendant. But Justice Yegan reminds me that in California, the same division may indeed see appeals from a particular defendant on different charges over time...

Doe v. Kamehameha Schools (9th Cir. - March 2, 2010)

Posted on March 02, 2010
I profoundly respect the deferential standard of review we give to district courts about issues of fact. It's appropriate. It's right.I recognize that it's often difficult for appellate courts to let something go forward that they think is wrong. But that difficulty only makes faithful adherence to the appropriate standard of review all the more essential...

People v. Mills (Cal. Supreme Ct. - March 1, 2010)

Posted on March 01, 2010
Here's an opinion today from the California Supreme Court. It's 73 pages long. See if you can figure out what happens even before you're told."Eric Thomas and victim Sherri Farrar were a young couple living in the Sacramento area. They had a young son, who was born in 1992...

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