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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

Perry v. Proposition 8 Official Proponents (9th Cir. - Nov. 19, 2009)Nov.

Posted on November 19, 2009
I teach it to my first-year students in civil procedure. But apparently the lesson hasn't filtered down to lawyers for the Liberty Counsel in Lynchburg, Virginia. So Judge McKeown has to spell it out for them.Here's the scoop: You can't intervene in a lawsuit if your only beef with an existing party is over litigation strategy...

In Re Karen Golinski (9th Cir. - Nov. 18, 2009)

Posted on November 19, 2009
"Yesterday, my good buddy Steve entered this order that said that Brad was entitled to get benefits for his same sex husband. (Which Shaun dutifully mentioned here.) Today, I'm entering this order that says that Karen gets similar benefits for her same sex wife...

In Re Brad Levenson (9th Cir. - Nov. 18, 2009)

Posted on November 18, 2009
You don't see many Ninth Circuit orders/opinions that are actually signed by the author these days. It's typed, or there's a stamp, or whatever. So it's sort of cool to see an actual signature.Plus, this is an interesting case. Brad Levenson is a deputy public defender, and he's had a same-sex partner for 15 years -- and has been married to him (in California) since 2008...

People v. Phu (Cal. Ct. App. - Nov. 17, 2009)

Posted on November 17, 2009
I bet this case comes out differently if it's a civil lawsuit as opposed to a criminal restitution order.Which is interesting, because the standard of proof is supposed to be higher in criminal cases. But as far as setting criminal restitution goes, we're nonetheless a lot more willing to speculate than we permit juries (or judges) to do in a civil case.

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U.S. v. Liera (9th Cir. - Nov. 4, 2009)

Posted on November 17, 2009
I'd have thought that it's okay to admit evidence from a taped interrogation when the audio tape from the first interrogation didn't work and so the government interrogated the suspect a second time -- and that that'd be the case even if the reiterrogation resulted in missing the arraignment calendar that'll happen in the next hour or so and hence delayed the arraignment another day...

Mangano v. Verity, Inc. (Cal. Ct. App. - Nov. 16, 2009)

Posted on November 16, 2009
You hear about "out of control" verdicts all the time. Then there are decisions like this one.Thomas Mangano sues his employer, Verity, for disability discrimination. He loses on summary judgment. And, three weeks later, Verity fires him.Verity appeals the trial court's ruling...

Merrill Lynch v. Arelma, Inc. (9th Cir. - Nov. 13, 2009)

Posted on November 16, 2009
When the district court's way too perfunctory, the Ninth Circuit can be a bit perfunctory as well. Hence this six-page (double-spaced) order, which not only reverses the district court, but takes the case away from the district judge as well.

People v. McRoberts (Cal. Ct. App. - Nov. 2, 2009)

Posted on November 13, 2009
You can have one of two reactions to this fact pattern, which involves someone being committed (after their period of incarceration has ended) as a sexually violent predator for an indeterminate period. Indeed, you can have -- as I do -- both.Here's the scoop about Daniel McRoberts...

Cassell v. Superior Court (Cal. Ct. App. - Nov. 12, 2009)

Posted on November 12, 2009
I'm going to have to go with Justice Jackson on this one, rather than Justice Perluss. Which makes the vote 3-1.Yes, the statute says that mediation stuff is confidential and inadmissible. Yes, the statute broadly defines what I've called "stuff," and includes any "oral and written communications" made ?for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation...

Matsuo v. United States (9th Cir. - Nov. 12, 2009)

Posted on November 12, 2009
This morning, Chief Judge Kozinski writes one of his classically informally, perfunctory opinions. Full of contractions and the like, it basically says -- shortly and sweetly -- "You lose, and you lose because you lose. This is a sufficiently easy case that I don't even have to bother telling you why you lose in detail because it's so obvious...

Kaye v. Trustees of San Diego County Public Law Library (Cal. Ct. App. - Nov. 10, 2009)

Posted on November 11, 2009
Things were not happy at the San Diego County Public Law Library. Read the whole thing for a peek inside an office that was at least partially dysfunctional. Whether the result of one whacko staff member or a broader institutional problem is, of course, the genesis of the dispute...

National Parks v. Kaiser Eagle Mountain (9th Cir. - Nov. 10, 2009)

Posted on November 10, 2009
Here's a quick quiz for the afternoon. It's an incredibly easy one, so if you fail it, you should give yourself a serious spanking, and study some more regarding who's who on the Ninth Circuit.Judges Pregerson, Paez and Trott are drawn for an environmental law case...

U.S. v. Paul (9th Cir. - Sept. 30, 2009)

Posted on September 30, 2009
This one's pretty unusual.First, a dissent from the denial of hearing a case en banc in which the author's basically just telling everyone how they should interpret the panel's opinion. Or to use the words of Judge O'Scannlain, "I dissent for the narrow purpose of sending the criminal defense bar this message: do not cite this case for the proposition that Paul?s sentence was substantively unreasonable...

People v. Smith (Cal. Ct. App. - Sept. 29, 2009)

Posted on September 30, 2009
Can you rob yourself? Yes you can.Or, more precisely, you can be convicted of robbery even if the owner of the property is in on it. At least if, while you're "robbing" the owner, you "take" the property from employees who don't know that the whole thing's an inside job...

People v. Thompson (Cal. Ct. App. - Sept. 29, 2009)

Posted on September 29, 2009
I mention this one if only because the concurrence written by Justice Graham -- a retired judge from Marin sitting by designation -- seems particular timely in light of current events.Justice Graham writes separately solely to write three pages excoriating prior authority that uses the term "voluntary" to describe non-forced sexual interaction between a minor and an adult...

Irigoyen-Briones v. Holder (9th Cir. - Sept. 29, 2009)

Posted on September 29, 2009
I have never liked and respected Judge Kleinfeld more than I do today.It's not that Judge Milan Smith didn't write a totally respectable majority opinion. He did. One that garners the support of Judge Siler, sitting by designation from the Sixth Circuit, and hence is the law of the Ninth Circuit...

Guggenheim v. City of Goleta (9th Cir. - Sept. 28, 2009)

Posted on September 28, 2009
Judge Bybee writes a very long, very detailed takings opinion this morning -- one that finds that the mobile home rent control ordinance in Goleta constitutes a regulatory taking. He's got a point. One that conservative judges (and their clerks) are often especially keen on nowadays...

MacDonald v. Kahikolu (9th Cir. - Sept. 10, 2009)

Posted on September 28, 2009
Losers sometimes stay losers even after they win.Chris MacDonald was working on a whalewatching and snorkeling ship in Hawai'i (nice life!) when he performs a free dive to retrieve a mooring line that's on the sea floor around 46 feet down. But he bursts his eardrum when he tries to equalize pressure, and he then sues the owners of the ship...

Vickey Kraus v. Presidio Trust Facilities (9th Cir. - July 23, 2009)

Posted on September 25, 2009
No published opinions from the Ninth Circuit today. And no new opinions published from the California Courtof Appeal (at least as of 2:00 p.m.) either.So let's go back a couple months and see if we can dredge up something interesting. Like, say, an example of how you can dredge up a lawsuit -- or at least a plethora of claims...

Clement v. Alegre (Cal. Ct. App. - Sept. 23, 2009)

Posted on September 24, 2009
You don't get many appellate cases about interrogatories, much less opinions that address your standard boilerplate objections that we routinely see in everyday litigation. So when one comes out -- and when it's so strident -- it's something you should at least be familiar with...

U.S. v. Bragg (9th Cir. - Sept. 23, 2009)

Posted on September 24, 2009
Commit brazen multimillion dollar tax fraud? No biggie. As long as you and your rich parents agree to pay the money back -- after you're caught, of course -- even if the U.S. wants you to spend two years or so in prison, you may well get a sympathetic judge to give you three years of probation...

In Re Judicial Misconduct Complaints (9th Cir. - Sept. 23, 2009)

Posted on September 23, 2009
You think I'm joking? Here's what I said yesterday. Which describes perfectly both this order this morning as well as this other one this morning.Some parts of being the Chief Judge ain't so tough.

U.S. v. Watson (9th Cir. - Sept. 23, 2009)

Posted on September 23, 2009
Scott McKensie used to sing: "If you're going to San Francisco, be sure to wear a flower in your hair. If you're going to San Fransciso. . . ." A classic 60s paeon to the City of Love.But if you're Deandre Watson, all you can do is watch this video...

In Re Complaint of Judicial Misconduct (9th Cir. - Sept. 22, 2009)

Posted on September 22, 2009
This happens to be from today, but it could be from just about any day. 'Cause they all get resolved the same way; in a published (transparent) order that gets rid of the thing.So let me summarize this one, and pretty much any other one: "Someone [typically a pro se nutjob] has filed a complaint of misconduct against one or a plethora of judges...

Manela v. Superior Court (Cal. Ct. App. - Sept. 22, 2009)

Posted on September 22, 2009
I agree with most of what Justice Kitching says here. We care if a parent has a seizure disorder when we assess what the best interests of a child are in a custody case. There's also been a partial waiver of the privilege here, so some discovery as to this issue can go forward...

Carolyn v. Orange Park Comm. Ass'n (Cal. Ct. App. - Sept. 21, 2009)

Posted on September 22, 2009
I had to wait almost twenty full pages, but finally -- at the very end -- Justice Ikola said what I had been thinking about and wanting him to say the entire opinion.The Orange Park Community Association has a series of trails for its homeowners. But it's nice; it links up to some other public trails, and while "technically" the public isn't allowed onto the private trails of the HOA, it's not like they actually care...

APL Co. v. U.G. Co. (9th Cir. - Sept. 21, 2009)

Posted on September 21, 2009
Sometimes politics matters. Other times, not so much. Or at all.The panel here consists of Judges Wallace, Thomas and Bybee. So two strong conservatives on the topside. It's reviewing an opinion by Judge Patel of the Northern District. A solid leftie...

Tichinin v. City of Morgan Hill (Cal. Ct. App. - Sept. 21, 2009)

Posted on September 21, 2009
It's been a good afternoon for Morgan Hill attorney Bruce Tichinin, who just learned that the Court of Appeal not only reversed the substantial award of attorney's fees against him resulting from the trial court's grant of the City of Morgan Hill's anti-SLAPP motion, but concluded that he also had a probability of prevailing on the merits...

In Re Edward Q (Cal. Ct. App. - Sept. 17, 2009)

Posted on September 18, 2009
It takes some guts (and/or amazing stupidity) to bring weed in with you to juvie hall.I bet it's even harder to keep from laughing when your only defense to the resulting charges is: "What? Pot in my shoe? How'd that get in there? That must have been from the guy I let borrow my shoes...

Dietz v. Meisenheimer & Herron (Cal. Ct. App. - Sept. 17, 2009)

Posted on September 17, 2009
Be careful to whom you refer -- or accept a referral from -- a case. Otherwise a big, ugly mess may develop. By "mess", of course, I mean litigation. Because who better to file and defend a lawsuit than two lawyers fighting over the spoils of a personal injury case that hits big?This one's a San Diego case, but it could happen anywhere...

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