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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 FairWageLaw (Cal. Ct. App. - Aug. 4, 2009)

Posted on August 06, 2009
Want to see an ugly law firm breakup, in which two California lawyers -- David J. Fuller and Henry Schrenker -- voted to dissolve the firm after the third (John Heurlin) was suspended from the practice of law for two years? Here you go.Heurlin ends up prevailing on appeal; not on the merits, but he does obtain a remand...

Milner v. Dept. of Navy (9th Cir. - Aug. 5, 2009)

Posted on August 05, 2009
Did I wake up this morning and accidentally travel back in time?I vaguely recall that the Ninth Circuit used to (and perhaps still does) issue "summaries" -- sort of like the syllabi issued by the Supreme Court -- as part of the paper slip opinions. But I don't recall seeing one of these for a least a decade or so, or at least not on the electronic (as opposed to paper) versions of the opinions...

People v. Haddad (Cal. Ct. App. - Aug. 4, 2009)

Posted on August 05, 2009
The failure to appear for a required drug test is a drug-related offense. Testing dirty in a required drug test is a drug-related offense. But showing up and trying to pass a drug test by using someone else's pee is not a drug-related offense. So sayeth the Court of Appeal (with Justice Mosk dissenting)...

U.S. v. Fraire (9th Cir. - Aug. 4, 2009)

Posted on August 04, 2009
First there's the border exception, which allows suspicionless stops of everyone who's anywhere within hundreds of miles of the border (or even beyond). Then there's the DUI exception, which allows everyone to be stopped at random checkpoints. Lest that be enough, now there's the hunter exception as well...

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Hernandez v. Hillsides, Inc. (Cal. Supreme Ct. - Aug. 3, 2009)

Posted on August 04, 2009
After you read this one, ask yourself whether your employer could permissibly -- or should be allowed to -- secretly videotape you in your office. What about in a lunch or break room, or a hallway, or a conference room? If someone's been watching porn or stealing pens, would that be enough to justify secret surveillance of everyone in the office?Sure, we know they can't tape you on the crapper...

Bressi v. Ford (9th Cir. - Aug. 4, 2009)

Posted on August 04, 2009
I talked earlier today about the Ninth Circuit's new "hunter exception" that permits suspicionless seizures. Let me add one more as well, again from the same day.Today we also learn of the "Find Out If You're An Indian" exception; again, at least in the Ninth Circuit Pursuant to which tribal officials may permissibly stop you -- even on state roads -- in order to ascertain whether you're an Indian...

U.S. v. Berger (9th Cir. - July 31, 2009)

Posted on August 03, 2009
Feeling pressure to get married from your significant other? Don't say "It's not you; it's me." That never works.Try something more creative. Something like: "Baby, I love you, and I'd totally want to marry you if we lived in any other state than California...

People v. Thorn (Cal. Ct. App. - July 31, 2009)

Posted on August 03, 2009
I've always found the breadth of California's definition of "burglary" problematic. At common law, it used to be that burglary was the breaking and entering of a dwelling place at nighttime. Nowadays, however, it seems like going anywhere, at any time, counts as burglary as long as you're planning on performing mischief therein...

People v. Black (Cal. Ct. App. - July 31, 2009)

Posted on July 31, 2009
Let's see what you think.Iris Black got someone else's bank account information and used it to make six purchases that total $377.99. She admitted the offense when questioned by police and pled guilty. She didn't really have any significant criminal history, so back in 2005, she's sentenced to 90 days in jail and three years of probation...

Daghlian v. DeVry Univ. (9th Cir. - July 31, 2009)

Posted on July 31, 2009
Sometimes, delay is really, really, really good for the defendant.Like here.

People v. Burney (Cal. Supreme Ct. - July 30, 2009)

Posted on July 30, 2009
You might want to read this opinion to see the scintillating discussion therein regarding whether "Asians" -- as opposed to "Chinese" or "Filipino" -- are a cognizable ethnic group for purposes of juror composition. Except that I'm being facetious, since the case merely raises the issue without deciding it...

People v. Wagner (Cal. Ct. App. - July 21, 2009)

Posted on July 30, 2009
What the heck's going on in Riverside County?!We all know about the desperate backlog there. That's a given. I've also seen a plethora of dismissal cases come up to the Court of Appeal as a result. Same old same old. You've got a time limit. Bring 'em to trial or dismiss...

Desai v. Deutsche Bank Securities (9th Cir. - July 29, 2009)

Posted on July 29, 2009
Today brings us a per curiam opinion with two concurrences, one by Judge O'Scannlain and one by Judge Graber. I'm not sure that anyone needs an additional (divergent) perspective, but I'll nonetheless offer one. Or perhaps even two.This is a fascinating case in which the defendants allegedly pumped up a stock through manipulation and in which Deutsche Bank allegedly made money through share-loaning...

Dupree v. Holman Prof. Counseling Centers (9th Cir. - July 29, 2009)

Posted on July 29, 2009
Here's a difference between me and Judge Pregerson. Surely not the difference. But a difference.Am I sympathetic to the plaintiff? Of course I am. His teenage daughter has specific medical needs (she's a diabetic), and has psychological and substance abuse problems, and as a parent, he wants the best available treatment for her...

Moore v. Czerniak (9th Cir. - July 28, 2009)

Posted on July 28, 2009
The principal reason to read these opinions is because they contain a neat dialogue between Judge Reinhardt, on the one hand (with Judge Berzon concurring), and Judge Bybee in dissent. It's an ineffective assistance of counsel case, so it's quite fact-bound...

People v. Hirata (Cal. Ct. App. - July 29, 2009)

Posted on July 28, 2009
How often do you see an opinion begin by quoting lyrics from an old jazz standard? Here you go.It's actually pretty relevant, too. Okay, maybe not relevant, but at least somewhat on point. Here's how the opinion begins:"September Song" laments, "Oh, it's a long, long while from May to December...

People v. Carrington (Cal. Supreme Court - July 27, 2009)

Posted on July 27, 2009
You don't see that many women sentenced to death in California. Much less do you see this in a case involving multiple murders and no involvement with men.But here you go.Not someone you want to have as your former janitor. Nor probably someone you really want to meet in prison, either.

Drake v. Superior Court (Cal. Ct. App. - July 27, 2009)

Posted on July 27, 2009
I like this one.Justice Duffy writes it in a fairly informal style. It's about timeliness and certificates of probable cause and the like in the context of a very ambiguous set of rules. Justice Duffy basically says: "I see how this is confusing to everyone...

Diaz v. LA County MTA (Cal. Ct. App. - July 23, 2009)

Posted on July 24, 2009
I'm impressed.On Monday afternoon, Justice Perluss published this opinion, which involved the application of res ipsa loquitor to a common carrier (in particular, an accident between a car and an MTA bus).On Tuesday morning, I wrote this, in which I noted that while I thought the opinion might be correct as a precedential matter, there were still some doctrinal things about it that bugged me...

People v. Osborne (Cal. Ct. App. - July 14, 2009)

Posted on July 23, 2009
What's the probability that sometime stealing a stereo out of a car is armed? Five percent? Twenty percent? Fifty percent? Go ahead and try to quantify it in your mind.Because it matters. Here, Osborne's working on his own car, but the police -- who don't initially know whose car it is -- wrongfully think he might be stealing the stereo...

Howard v. DeWitt (Cal. Ct. App. - July 15, 2009)

Posted on July 23, 2009
I will not claim that I read every unpublished decision of the Court of Appeal, even those from down here in San Diego. 'Cause I don't.But I do occasionally peruse them. Sometimes you stumble upon a gem. Like this one.There's nothing really important to say about the opinion itself, which involved an appeal by an insurance company that was attempting (quite belatedly) to set aside a large default judgment entered against someone it had decided not to defend...

Baker Manock & Jensen v. Superior Court (Cal. Ct. App. - July 21, 2009)

Posted on July 22, 2009
It's a disqualification case involving a will contest. Nothing manifestly special.But am I reading it wrong? Is there bad blood between the Fifth Appellate District and Judge Kazanjian? Because Justice Vartabedian seems to go out of his way to slam the trial court...

People v. Field (Cal. Ct. App. - July 14, 2009)

Posted on July 22, 2009
Don't molest children. Because even after you finish your sentence, and even after you have your balls surgically removed, we still won't let you out.

Diaz v. LA County MTA (Cal. Ct. App. - July 20, 2009)

Posted on July 21, 2009
I'm of two minds about this case. Wait, no. Make that three.It's a routine bus accident in L.A., the kind that I'm sure happens at least weekly. A bus is at the intersection of Van Nuys and Roscoe and rear-ends another car, throwing a passenger out of her seat and making her hit her head...

U.S. v. Peyton (9th Cir. - July 21, 2009)

Posted on July 21, 2009
I agree with Judge Canby.Last year, I agreed with Judge Wallace. Back then, in U.S. v. Giberson, the police had a warrant to search a home for evidence of evasion of child support and saw some evidence in plain view that pretty clearly indicated that the defendant was making false identifications from his computer...

Vasquez v. Kirkland (9th Cir. - July 20, 2009)

Posted on July 20, 2009
Even if a key witness is deaf, cannot speak, and has not learned sign language, she can still properly testify at a criminal trial.Sure, a defendant's ability to cross-examine that witness is somewhat limited, since she's using somewhat ambiguous facial expressions, gestures, and lip movements to both understand and respond to questioning...

People v. Friend (Cal. Supreme Ct. - July 20, 2009)

Posted on July 20, 2009
Sometimes it's totally easy to see why a defendant has been sentenced to death, and it's obvious how the murder there is different from other crimes in which the defendant is sentenced to life.Then there's this one.Maybe I'm jaded after reading all the death penalty cases over the past couple decades...

In Re Henry Russell Martin (S.D. - July 17, 2009)

Posted on July 18, 2009
A warm welcome to the newest reader of the California Appellate Report: Henry Russell Martin, who entered the world a bouncing 10 pounds 2 ounces at 10:59 a.m. this morning.

People v. Hernandez (Cal. Ct. App. - July 10, 2009)

Posted on July 17, 2009
I would have thought that everyone could agree that you can't let the jury see a uniformed and armed bailiff following the defendant in a criminal case wherever he goes -- at least if there's not an actual security risk. I'd have thought that everyone would recognize the prejudice inherent in having the bailiff follow around this one particular individual -- at his seat, on the witness stand, etc...

Thomas v. Mundell (9th Cir. - July 15, 2009)

Posted on July 16, 2009
You don't get many "separate but equal" cases nowadays. So check this one out.It's a case that ultimately gets dismissed on Article III standing grounds, and for understandable reasons. But check out the facts. Basically, Maricopa County (Arizona) has three separate DUI courts; a "regular" (read: white) court, a "Spanish-speaking" DUI court, and a "Native American" DUI court...

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