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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 B.T. (Cal. Ct. App. - March 16, 2011)

Posted on March 16, 2011
Here's something you don't see every day.It's a statutory rape case. Where Social Services takes away the resulting child.Wait. That's not that unusual. So what's weird?Reverse the genders. Here the offender is Debra, a 38-year old woman married to someone else, who has sex with her 14- (or 15-) year old neighbor, who's a friend of Debra's elder son...

Helman v. Alcoa Global Fasteners (9th Cir. - March 11, 2011)

Posted on March 15, 2011
Four quick things about this case:(1) It's a really well-written opinion. I'm usually dubious about opinions that say "This is an easy case. The plain text of the statute is clear." Usually appeals are more difficult than that...

People v. Smith (Cal. Ct. App. - Feb. 28, 2011)

Posted on March 14, 2011
I had various reactions to this one.I first read the initial seven pages of the opinion, involving an appeal filed by a serial rapist who was sentenced to life in prison. Those first pages discuss the facts of the rapes. My reaction? "I'm incredibly happy they caught this guy and put him in prison...

In Re Marriage of Urbany (Cal. Ct. App. - March 14, 2011)

Posted on March 14, 2011
You'd think that the Court of Appeal wouldn't have to remind a trial court that before you impose sanctions, you have to (1) provide at least some notice, and (2) have the sanctions supported by the record.But apparently a reminder is indeed necessary.

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California School Boards Ass'n v. State of California (Cal. Ct. App. - Feb. 9, 2011)

Posted on March 11, 2011
Want to see why California state government is such a nightmare? Here you go.The contemporary state budget is a shell game. It's worse than street three-card monte. If only because it blatently violates the California Constitution, in addition to its inherent dishonesty and horrible consequences...

In Re Marriage of Kochan (Cal. Ct. App. - March 9, 2011)

Posted on March 10, 2011
I get what Justice Bigelow is saying here. And agree. You generally can't "impute" income to a spouse (in a divorce case) just because s/he could make more money doing a different job. Sure, if they're not doing anything, that's one thing...

U.S. v. Eriksen (9th Cir. - March 9, 2011)

Posted on March 09, 2011
Judge Smith begins his opinion by saying: "Defendants-Appellants Sigmund Eriksen and Raymond Eriksen appeal their convictions stemming from their misappropriation of employee 401(k) contributions to pay their company?s operating expenses."Which made me think: "Hmmm...

Gould v. Corithian Colleges (Cal. Ct. App. - Feb. 22, 2011)

Posted on March 09, 2011
Want to see concise, speedy, entirely equitable justice? Here you go.I couldn't agree more with Justice Gilbert's opinion. Short. Fair. Right.Love it.

Salomaa v. Honda Long Term Disability Plan (9th Cir. - March 7, 2011)

Posted on March 08, 2011
Fair warning: I'm about to be a jerk. But a principled one.There's a complicated ERISA case. It gets briefed by the parties and argued in May 2009. The panel is split. Two judges write a majority opinion, and one writes a dissent...

U.S. v. Williams (9th Cir. - March 7, 2011)

Posted on March 07, 2011
Dude. You were convicted of sexual assault when you grabbed a nine-year old and thirteen-year old girl in 2000. After you were released from your subsequent conviction, your supervised release was revoked when you skipped sex offender treatment sessions and got a job at a fair frequented by children...

McCollough v. Johnson, Rodenberg & Lauinger (9th Cir. - March 4, 2011)

Posted on March 07, 2011
Sometimes it takes a very fancy attorney to take on a law firm. Sometimes it doesn't.Johnson, Rodenberg & Lauinger -- a North Dakota law firm -- files lots of debt collection lawsuits. For example, in Montana, the firm files an average of five a day...

People v. Troyer (Cal. Supreme Ct. - Feb. 22, 2011)

Posted on March 04, 2011
I'd have liked the California Supreme Court to at least address the policy consequences of its decision here.Seems to me that one consequence of this holding is to deter people in an emergency from calling 911. The 911 call recounted a shooting in which a person had been shot by suspects driving a two-door Chevrolet, and the police responded...

Cabrera v. E. Rojas Properties, Inc. (Cal. Ct. App. - Feb. 24, 2011)

Posted on March 03, 2011
Here are some bar examination questions for you. Not a real ones. I made them up. (Okay, they're a real questions. With real answers. But as far as I know, they're not on the Bar.) See if you can get them all correct:P is injured by D...

Gularte v. Pradia (Cal. Ct. App. - March 3, 2011)

Posted on March 03, 2011
Even if it's not signed by two witnesses (as required by the Probate Code), if you dictate a will to someone, they write it down, you sign it, and several people see you do all this, that's enough for a valid will. So holds the Court of Appeal...

Sonic-Calabassas-A, Inc. v. Moreno (Cal. Supreme Ct. - Feb. 24, 2011)

Posted on March 02, 2011
You get more 5-4 decisions in the United States Supreme Court than 4-3 decisions in the California Supreme Court. Here's a classic example of the latter.It's about "Berman" hearings; basically, wage claims by an employee in front of the Labor Commissioner...

U.S. v. Watson (9th Cir. - Feb. 23, 2011)

Posted on March 01, 2011
I'm not going to complain about Judge Milan Smith's opinion in this case. which holds that you're still a fugitive (for purposes of the period of federal supervised release) even if you're arrested on state charges.But I would like to say that I'm not all that impressed with federal supervised release if federal authorities fail to supervise -- or catch -- you when, as here, you're arrested eleven different times during this period...

People v. Superior Court (Salter) (Cal. Ct. App. - Feb. 24, 2011)

Posted on March 01, 2011
George Salter gets committed to Atascadero State Hospital. After he's served his time, the medical director at Atascadero seeks to keep him there, believing him to be a mentally disordered offender. So the State files the appropriate charges...

Alaimalo v. United States (9th Cir. - Feb. 28, 2011)

Posted on February 28, 2011
"Never give in. Never surrender."That's generally something that Winston Churchill is thought to have said. His actual quote was somewhat different. But expressed a similar thought. (That quote does come from Galaxy Quest. A dweeb movie favorite...

Hibbs v. Allstate Ins. Co. (Cal. Ct. App. - Feb. 24, 2011)

Posted on February 25, 2011
An insured's car gets damaged, and the damage is covered by insurance. The insurer says it'll cost $6,200 to repair the vehicle. The insurance policy says that the insurer can either pay the $6,200 or repair the vehicle. The insured says she'd rather have the money than the banged-up (albeit repaired) vehicle...

U.S. v. Lynn (9th Cir. - Feb. 23, 2011)

Posted on February 24, 2011
You can look at this case in one of two ways.The first way is the government's way. The defendant downloaded child porn. He's a sicko. He deserves whatever punishment he receives. The trial court sentenced Lynn to 17 and a half years in prison...

Fleischer Studios v. AVELA (9th Cir. - Feb. 23, 2011)

Posted on February 23, 2011
Want to know the history of the "Betty Boop" character, as well as its current copyright status.Here you go.A neat little story.P.S. - So is the appeal. Be sure to check out the trademark section of the opinion. Notice that the court repeatedly finds dispositive controlling Ninth Circuit authority that neither side cited...

Estate of Bernard Shapiro v. U.S. (9th Cir. - Feb. 22, 2011)

Posted on February 22, 2011
I occasionally teach a class called "The Law of Love." If I taught a class called "The Tax Law of Love," this would assuredly be a case I'd assign my students.Thankfully, I don't. Especially because even after thinking about it for quite a bit, I'm not sure what the right answer should be...

People v. Murtishaw (Cal. Supreme Ct. - Feb. 22, 2011)

Posted on February 22, 2011
Ugh.This one continue's today's theme of being of two minds.On the one hand, you have defendant's offense. A triple murder. Senseless. Horrible. Despicable. The victim impact evidence is particularly disturbing. That's pages 2 through 8...

In Re David R. Thompson (9th Cir. - Feb. 21, 2011)

Posted on February 21, 2011
I haven't seen the news reported anywhere -- and checked both the wires and the Ninth Circuit's web site --but I learned this morning (from a reliable source) that Judge Thompson apparently died over the weekend.This is a great loss. Judge Thompson spent his career in San Diego, practicing law here for almost thirty years (after getting out of the Navy) before being appointed to the Ninth Circuit in 1985...

Borger v. DMV (Cal. Ct. App. - Feb. 17, 2011)

Posted on February 18, 2011
A statute (and related regulation) says that you can't drive with a blood alcohol content of .08 or more. When a chemical test says that your number is .08 or above, that creates a rebuttable presumption that you've violated the law.A guy gets stopped and blows a ...

Baccei v. United States (9th Cir. - Feb. 16, 2011)

Posted on February 17, 2011
This couldn't be more right.I'd usually not be too psyched about the IRS piling on a $60,000 penalty in addition to another $70,000 of interest. Particularly when they result from an alleged mistake in filling out a form.But here it seems entirely appropriate...

Rosencrans v. Dover Images (Cal. Ct. App. - Feb. 16, 2011)

Posted on February 17, 2011
What's the difference between negligence -- which you can waive in advance -- and gross negligence, which you can't?The best definition we can come up with is that gross negligence requires an "extreme" departure from the reasonable standard of care. Which doesn't really help much...

In Re Marriage of Cantarella (Cal. Ct. App. - Jan. 11, 2011)

Posted on February 16, 2011
I always thought that to get legally married in California, you had to (1) get a license, (2) perform the ceremony, and (3) mail in your certificate.Apparently I was wrong. Or so holds the Court of Appeal. Even when you deliberately don't do (3), you're still married...

In Re Jack C. (Cal. Ct. App. - Feb. 15, 2011)

Posted on February 15, 2011
What?! An actual Indian child?!Yep.I've probably read over a thousand ICWA (Indian Child Welfare Act) dependency cases over the years. This is the first one I can recall in which the child was actually an eligible member of a Tribe.It's rare...

In Re Price (Cal. Supreme Ct. - Feb. 14, 2011)

Posted on February 14, 2011
Forgive me if you've heard this one before: A prosecutor in a death penalty case is sitting at a bar . . . .Oh, wait. It's not a joke. That's actually the entire subject of this opinion.The prosecutor at a death penalty case was indeed sitting at a bar -- more accurately, the bar at the Waterfront Cafe in Eureka -- with a friend (the wife of another deputy DA)...

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