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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

Lexin v. Superior Court (Cal. Supreme Ct. - Jan. 25, 2010)

Posted on January 25, 2010
For most people, Mondays aren't typically cause for massive celebration. But today's an exception for the former members of San Diego's Pension Board who were charged with a criminal conflict of interest as a result of their votes in favor of creating what turned out to be San Diego's monster pension crisis...

U.S. v. Green (9th Cir. - Jan. 22, 2010)

Posted on January 22, 2010
I think that Judge Tashima's introductory paragraph in this one is pretty darn apt: "Depending on whose version of this case you hear, defendant Judy Green is either a dedicated public schoolteacher who spent the years before her conviction working to help impoverished schools across the country, or the mastermind of a massive fraudulent scheme that bilked the federal government out of almost $60 million...

People v. Kelly (Cal. Supreme Ct. - Jan. 21, 2010)

Posted on January 21, 2010
I'm somewhat of two minds about this morning's decision from the California Supreme Court. Notwithstanding the fact that it's utterly uncontroversial.On the one hand, I'm glad that Chief Justice George's opinion helps make clear the somewhat messy interplay between the Compassionate Use Act ("CUA") -- the initiative that legalized medical marijuana -- and the Medical Marijuana Program ("MMP"), which was added by the Legislature and was an attempt to establish some practical guidelines in applying the CUA...

Truong v. Glasser (Cal. Ct. App. - Jan. 21, 2010)

Posted on January 21, 2010
Let's hear it for statutes of limitations running fairly quickly against lawyers.San Diego attorney Bruce Glasser enjoys the fruits of this holding. And, given its publication today, so do we all.

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In Re Criscione (Cal. Ct. App. - Jan. 13, 2010)

Posted on January 20, 2010
Arthur Criscione was born in 1938, making him 71 or 72 years old. He's had 14 prior parole hearings. Would you let him out?Here are the relevant facts:"Criscione was convicted in 1979 of the second degree murder of his girlfriend, Dorothy Quinitar. He was sentenced to 15 years to life...

Crowe v. Wrisley (9th Cir. - Jan. 14, 2010)

Posted on January 14, 2010
It was one of the highest-profile murders in San Diego in recent memory: The Stephanie Crowe murder on January 20, 1998, when 12-year-old Stephanie Crowe was stabbed to death in her bedroom. It became even more shocking when, after extensive investigation and interrogations, Stephanie's brother and two of his friends were charged with the murder...

U.S. v. Yip (9th Cir. - Jan. 13, 2010)

Posted on January 13, 2010
As your 1099s begin to arrive in this new Tax Year, let me be the first to remind you that there are serious downsides to running an "off the books" business that entirely fails to pay any taxes. Especially if, when you're audited, you start fabricating loans and the like in an effort to derail the civil audit...

Full Throttle Films, Inc. v. National Mobile Television (Cal. Ct. App. - Jan. 12, 2010)

Posted on January 13, 2010
The name of the plaintiff in this case is "Full Throttle Films," which led me to think: "Hmmm. This one might be interesting."But it's an attachment case. Zzzzzzzz.Don't judge a book by its cover.P.S. - On a related note, "Full Throttle Films" does not produce what you might think...

People v. Alford (Cal. Ct. App. - Jan. 13, 2009)

Posted on January 13, 2010
"In April 2008, defendant Anthony Mark Alford, Jr., entered a Wal-Mart, loaded a shopping cart with meat, put most of the meat in a 150-quart ice chest, placed some other items in the cart, and tried to leave the store without paying. The total value of the items in the cart was $515...

People v. Gonzalez (Cal. Ct. App. - Jan. 12, 2010)

Posted on January 12, 2010
Armando Gonzalez and Jose Ortiz are driving in Pomona with a couple of fellow gang-bangers. They see Hector sitting on the sidewalk watching fireworks and tell the driver to stop. They then get out of the car and, for totally inexplicable reasons, Ortiz walks up to Hector (with a gun at his side) and ask him "Where he's from...

People v. Fierro (Cal. Ct. App. - Jan. 11, 2010)

Posted on January 11, 2010
I'll have to agree with the Court of Appeal on this one. All that Michael Ibarra wanted to do was to pump some gas. Here's a case of a simple civility dispute that slowly but inexorably escalated, on both sides: "The Ibarras and appellant never knew each other until August 8, 2007, when they met at an ARCO gas station...

U.S. v. Pineda-Moreno (9th Cir. - Jan. 11, 2010)

Posted on January 11, 2010
The Ninth Circuit holds today that it's okay for the DEA, and presumably any other law enforcement official, to come into your driveway, without probable cause, climb under your vehicle, and place a tracking device thereupon.The theory is that you've got no "reasonable expectation of privacy" in: (1) your driveway, since a neighbor could go there on the way to your house, (2) the undercarriage of your car, since a child might potentially look for a lost ball there, or (3) where you come and go in your vehicle, since another driver could follow you...

Equatorial Marine Fuel Mgm't Svcs v. MISC Berhad (9th Cir. - Jan. 11, 2010)

Posted on January 11, 2010
I've been getting a tiny bit behind on my daily reading due to both the holidays and the fact that I'm in D.C. furiously preparing for an oral argument before the Supreme Court on Wednesday morning. An argument that concerns the fascinating world of ERISA when intersected with the thrilling concepts of standards of review...

Singh v. Holder (9th Cir. - Jan. 8, 2010)

Posted on January 08, 2010
Academics (including me) usually applaud the historical game theoretic aspects of Marbury v. Madison. So much so that it's now a pretty standard judicial play. Doctrinally, hold that courts have jurisdiction to review the issue, but then decide against the particular claimant...

Priceline.com, Inc. v. City of Anaheim (Cal. Ct. App. - Jan. 5, 2010)

Posted on January 07, 2010
Here's an extremely well-written opinion by Justice Ikola. Which holds that Anaheim can use contingency fee lawyers to go after Priceline for not collecting and paying transient occupancy taxes.I'll not say much other than it's an opinion worth reading...

People v. Maikho (Cal. Ct. App. - Jan. 5, 2010)

Posted on January 06, 2010
Here's an opinion that hits close to home.It's a case about illegal lobster fishing on the Ocean Beach Pier. Which is less than a mile from my house, and which I visit regularly.A Department of Fish and Game ("DFG") officer is staking out the place two summers ago when he sees a dude (Bounh Maikho) hand-lining...

Junkin v. Golden West Foreclosure Service (Cal. Ct. App. - Jan. 5, 2010)

Posted on January 06, 2010
Gary Bennett is a "hard money" lender in San Carlos, and Donald Junkin -- a real estate investor -- borrows from him a lot; i.e., 40 to 60 times. After a particular deal in San Carlos goes south, Junkin sues Bennett claiming that the interest rate is usurious...

Sanchez v. Aerovias De Mexico (9th Cir. - Jan. 5, 2010)

Posted on January 05, 2010
When I was clerking on the Ninth Circuit and had drafted an opinion (or, especially, a dissent), I often took it to the judge and found -- draft after draft -- that he had added long arguments with absolutely no citations whatsoever. I distinctly recall thinking: "Don't you want some citations for these arguments? Don't you actually want to support what you're saying?"Needless to say, I kept these thoughts to myself...

Fink v. Shemtov (Cal. Ct. App. - Jan. 5, 2010)

Posted on January 05, 2010
Let me give you some help:Suggestion One: When you've been declared a vexatious litigant, don't represent yourself when you challenge that finding on appeal. That's what got you into trouble in the first place.(2) When and if you disregard Suggestion One, when you file the appeal, leave out the vitriol and personal attacks on the trial judge...

In Re Cellphone Termination Cases (Cal. Ct. App. - Jan. 4, 2010)

Posted on January 04, 2010
Here's something I hadn't seen before.It's a class action settlement, but the parties can't agree on the amount of the fees. So they agree to arbitrate, with a floor of $500,000 and a cap of $2,950,000. Objectors object, claiming (among other things) that they won't be allowed to participate the arbitration...

People v. Murphy (Cal. Ct. App. - Dec. 28, 2009)

Posted on December 31, 2009
No opinions on New Year's Eve, of course. Nonetheless, as a public service, here's a timely reminder from an opinion earlier this week for those readers who might be inclined to tie one on tonight:When you get drunk and smash your car, don't get a friend to drive you home and claim the car was stolen...

Traschel v. Rogers Terminal & Shipping Corp. (9th Cir. - Dec. 30, 2009)

Posted on December 30, 2009
First -- and important -- principles first. Everyone's entitled to their day in court. In the trial court as well as on appeal. We all agree on that.Bonus principle: Legal issues are important. They need to be resolved. Especially when they're relevant to multiple cases...

U.S. v. No Runner (9th Cir. - Dec. 30, 2009)

Posted on December 30, 2009
Two quick points about this case.First, it's ironic that the defendant, who's charged with stealing a sports utility vehicle and crashing it, killing someone (and hence an involuntary manslaughter charge), has the name "Journey Marie No Runner." She's have been in a lot better shape if her journey had been on foot, at any speed...

People v. Pham (Cal. Ct. App. - Dec. 28, 2009)

Posted on December 29, 2009
Justice Bedsworth begins this opinion with the following opening line: "There appears to be no limit to the ability of our species to devise new and different bad things to do to each other."Strong words. So I was anticipating a particularly vicious and unprecedented attack...

Jasmine Networks v. Superior Court (Cal. Ct. App. - Dec. 29, 2009)

Posted on December 29, 2009
I like it when the Court of Appeal spells out crystal clearly at the outset of the opinion what we're talking about. Justice Rushing does a fantastic job of that in this opinion. Here are the first two paragraphs, which pretty much say it all. With 34 pages of subsequent elaboration, of course:"Plaintiff Jasmine Networks, Inc...

Bryan v. McPherson (9th Cir. - Dec. 28, 2009)

Posted on December 28, 2009
Ah, Southern California. The fun. The sun. The unnecessary tasering.Judge Wardlaw writes this one like a novel, so all I have to do to tell the tale is to use her own words:"Carl Bryan?s California Sunday was off to a bad start. The twenty-one year old, having stayed the night with his younger brother and some cousins in Camarillo, which is in Ventura County, planned to drive his brother back to his parents? home in Coronado, which is in San Diego County...

People v. Moret (Cal. Ct. App. - Dec. 28, 2009)

Posted on December 28, 2009
"What?! Just because I'm 19, was fired for embezzlement, and am carrying a loaded Smith & Wesson .38, you have the audacity to order that as a condition of probation, I can't smoke weed four times a week? Outrageous!!"Or at least that's what Daryl Moret thought...

People v. Taylor (Cal. Ct. App. - Dec. 24, 2009)

Posted on December 24, 2009
I'm no sentimentalist. But the case has been pending since 1996, and it's now Christmas Eve. Can't the California Supreme Court wait a couple of days to tell Keith Taylor that he's going to die?Seems pretty Grinch-like to lay the hammer down on Christmas Eve...

Park 100 Inv. Group v. Ryan (Cal. Ct. App. - Dec. 23, 2009)

Posted on December 23, 2009
There's not much selection on the last working day before Christmas. Nothing from the Ninth Circuit today, and slim pickings from the California Court of Appeal.Nonetheless, here's an opinion with everything. If by "everything" you mean a mish-mash of doctrinal principles that reads like a law school hypothetical...

People v. Franco (Cal. Ct. App. - Dec. 22, 2009)

Posted on December 22, 2009
All you apartment dwellers out there: Listen up. Let's say that your lease (like the one in this case) allows the landlord to inspect your place, and that they do so biannually. Presumably, at least pursuant to the generalized lease provisions I typically see, with 24 hours notice...

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