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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

Apana v. TIG Insurance Co. (9th Cir. - July 15, 2009)

Posted on July 16, 2009
"Hey, Hawai'i Supreme Court. Some plumber went to a Costco in your Great State to unplug a drain, poured some strong chemicals down it, and accidentally got a customer sick from the fumes. The Mainland States are split about whether the 'pollution exclusion' in most insurance policies (including this one) covers only traditional environmental pollution or stuff like this, and your Awesome State hasn't yet answered this question...

BNSF Railway Co. v. O'Dea (9th Cir. - July 16, 2009)

Posted on July 16, 2009
Let me give credit where credit is due. And then take some away.For a long time, Judge Fernandez definitely liked big words. His opinions were scattered with 'em, and it was a sort of trademark for him.Often (indeed, usually), I thought that the unnecessary use of ten-cent words detracted from -- rather than added to -- the clarity of Judge Fernandez's opinions...

U.S. v. Noster (9th Cir. - July 15, 2009)

Posted on July 15, 2009
Rarely do I quote an opinion or disssent at substantial length. But sometimes the actual words are too good to leave to a mere link.For this reason, I give you the following dissent by Judge Shadur, who's sitting by designation from the Northern District of Illinois:"Vigilantism?whether manifested by group action such as that of a lynch mob or by individual rogue activity?is the enemy of orderly law enforcement...

U.S. v. Olander (9th Cir. - July 15, 2009)

Posted on July 15, 2009
Congress is not especially bright, and the child pornography lobby is not especially strong.That's the only way I can explain the structure of 18 U.S.C. sect. 2252A, which is the main federal child pornography statute. To the detriment, sadly, of a coherent and rational statutory scheme...

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Branner v. Regents (Cal. Ct. App. - July 14, 2009)

Posted on July 14, 2009
There is much talk of judicial "empathy" nowadays. Rightly so. It's an important issue. Upon which reasonable views have been -- and continue to be -- expressed on both sides.But let me attempt to recharacterize the debate. At least in part. And to simultaneously reveal a little of what I think judging is (at least partially) about...

U.S. v. Overton (9th Cir. - July 14, 2009)

Posted on July 14, 2009
The Ninth Circuit is P.C. with the best of 'em. Even Judge Tallman.Today Judge Tallman edits this opinion (published last month) to make a single change, which alters the original opinion so that the mother of the molestation victim is now described as the victim's "biological" mother rather than her "natural" mother...

Skokomish Indian Tribe v. Port Gamble S'Klallam Tribe (9th Cir. - July 13, 2009)

Posted on July 13, 2009
Isn't one point -- indeed, a central point -- of having a judiciary to convince people not to engage in self-help remedies? Isn't the point of a judicial system to provide a means of peacefully settling what might otherwise provide fertile ground for continuing misconduct?Perhaps not...

People v. Sizemore (Cal. Ct. App. - July 9, 2009)

Posted on July 10, 2009
Even movie stars can get incarcerated for drug offenses. Even in California. Even after Proposition 36.Just be enough of a head case and enough of a meth addict and in you'll eventually go.Just ask Tom Sizemore. For whom the California Court of Appeal said earlier today: "Affirmed".

Norwood v. Vance (9th Cir. - July 9, 2009)

Posted on July 10, 2009
Chief Judge Kozinski is sometimes the swing vote in close civil liberties cases. So in this case, in which the other panel members are Judge Callahan and Thomas, it's not entirely surprising to discover that the party who wins Kozinski is the party who wins...

Lonberg v. City of Riverside (9th Cir. - June 26, 2009)

Posted on July 09, 2009
Sometimes, even as an advocate, it make sense to play the strong, silent type.The classic example is when the tentative has come out in your favor. You stand up, let the other side say its piece, and when it's your turn, volunteer to speak if the judge wants, but otherwise shut up and win...

Melkonians v. Los Angeles County Civil Svc. Comm'n (Cal. Ct. App. - June 10, 2009)

Posted on July 08, 2009
Here's a guy -- Ara Melkonians -- who I'm definitely glad is no longer with the L.A. Sheriff's Department. Read the whole thing, including but not limited to the line that says: "Melkonians had 14 administrative hearings in 10 years of service and nine of the allegations were sustained...

Vinole v. Countrywide Home Loans (9th Cir. - July 7, 2009)

Posted on July 08, 2009
Don't assume you get to move for class certification on your own schedule. Smart defendants can move to deny class certification even before you move to certify.Litigation -- like many other games -- is often about strategy. Use it wisely.

People v. Ramon (Cal. Ct. App. - July 7, 2009)

Posted on July 07, 2009
For a good portion of this opinion, based upon its tone and content, I thought that Justice Cornell was going to hold that the gang enhancement here was proper. Which was going to make me go ballistic.Basically, a guy who was in a gang stole a car, and a police officer testified at trial: "Well, if you steal a car, you're able to use that car to commit crimes on behalf of a gang if you feel like it, so yeah, I'd stay that stealing the car was in furtherance of gang activity...

Fontaine v. Superior Court (Cal. Ct. App. - July 7, 2009)

Posted on July 07, 2009
You don't see too many venue cases in the Court of Appeal. But here's one.For good reason, too. Here's a case where the defendant (smartly) moves to change venue -- from Santa Clara to Orange County -- not only to get a better jury pool, but principally to make it a monster hassle for plaintiff and his lawyers...

Mevorah v. Wells Fargo (9th Cir. - July 9, 2009)

Posted on July 07, 2009
It's apparently class action day today at the Ninth Circuit, as three of the four civil cases published today review class action complaints. And whatever one might think about the allegedly "liberal" Ninth, it's not a day that will make plaintiff's side class action lawyers happy...

U.S. v. Old Chief (9th Cir. - July 6, 2009)

Posted on July 06, 2009
No, cases like this one don't advance a stereotype. Not at all.

People v. Rogers (Cal. Supreme Court - July 6, 2009)

Posted on July 06, 2009
The police get a report of a person who's been missing for around a month. Something to investigate, of course, but not desperately urgent, which is why even though they receive the call at 8:00 a.m., they don't bother to investigate until later that afternoon...

Mission Bay Jet Sports LLC v. Columbo (9th Cir. - June 24, 2009)

Posted on July 02, 2009
I have two things to say about this case. Both of which may principally be of interest to those readers down here in San Diego.First, did you realize that you're subject to admiralty jurisdiction when you're hanging out at Mission Bay? You apparently are...

In Re Complaint of Judicial Misconduct (3rd Cir. - July 2, 2009)

Posted on July 02, 2009
Congratulations, Alex.It's a light admonishment from the Third Circuit, and that -- plus the love that you can virtually feel come off the page from the report -- is pretty much everything that Chief Judge Kozinski could hope for in the process. Yes, he left some stuff on his computer he shouldn't have, but he realizes that now, and has been punished for his (minor) transgressions more than enough by the publicity and reputational hit alone...

People v. Johndrow (Cal. Ct. App. - July 1, 2009)

Posted on July 01, 2009
Rarely is there a consistent theme for the day. Much less one that spans both the state and federal appellate cases. But today may be an exception.Glenn Johndrow is on trial, and he wants to testify. He repeatedly and expressly says so, both to his lawyer and to the judge...

Bible v. Ryan (9th Cir. - July 1, 2009)

Posted on July 01, 2009
Judge Gould writes a 22-page, single spaced opinion that can probably be summarized in a single -- telling -- paragraph. Here's my synopsis:"It's clear that Richard Lynn Bible killed a 9-year old girl for totally no reason. Given that fact, we all know that pretty much any judge or jury would vote to sentence him to death...

County of Butte v. Superior Court (Cal. Ct. App. - July 1, 2009)

Posted on July 01, 2009
I've been thinking about this case since when it came out around lunchtime. And after much reflection, I've come to the reluctant conclusion that Justice Morrison's dissent is right.It's a great case on many levels. The premise of which starts with the following: "Dude, you can't make the pull up my weed...

Wilson v. San Luis Obispo County Dem. Central Comm. (Cal. Ct. App. - June 29, 2009)

Posted on June 30, 2009
The United States is not, say, Iran, right? Or even Honduras.There's no way that someone could get elected to an office and then get booted out -- notwithstanding her victory in the election -- simply because other elected officials didn't like her. Right?Think again...

Chapman v. Pier I Imports (9th Cir. - June 29, 2009)

Posted on June 30, 2009
This is why so many attorneys who file ADA claims in California use professional plaintiffs. Because when the plaintiff tells the truth, the case may well get bounced.So better to have a plaintiff who knows how the system works and what needs to be said -- essentially, the same stuff that was alleged in the complaint...

Beninanti v. Black Rock City LLC (Cal. Ct. App. - June 30, 2009)

Posted on June 30, 2009
It's pretty freaking obvious that if you're at Burning Man and approach a flaming 60 foot wooden structure to throw some stuff into it of your own, you're potentially comparatively negligent. Totally.But what the Court of Appeal holds today is that recovery is barred in its entirety -- and as a matter of law, no less -- based upon the doctrine of primary assumption of the risk...

U.S. v. Sanchez (9th Cir. - June 23, 2009)

Posted on June 29, 2009
Going back in time is difficult in the real world. But we do it in the judiciary all the time.For example, ever since the Supreme Court in Booker held that the sentencing guidelines were advisory, the Ninth Circuit has conducted what we call "limited Ameline" remands, in which the district court is basically asked whether -- for those cases that were on appeal when Booker was decided -- it would have imposed the same sentence had it known the guidelines were advisory...

In Re Lloyd Rucker (9th Cir. - June 26, 2009)

Posted on June 26, 2009
Couldn't agree more. At least about the result.Lloyd Rucker committed widespread fraud, went to prison, and tried to avoid paying a multimillion civil judgment against him by making massive contributions to 401(k) plans well in excess of IRS limits (and then lying to everyone, including the IRS, about them)...

Charisma R. v. Kristina S. (Cal. Ct. App. - June 26, 2009)

Posted on June 26, 2009
Even lesbian parents sometimes bag out on the relationship shortly after a kid is born. Making it even tougher than usual to figure out who the parents -- and what their respective rights -- really are.Interesting lineup of counsel as well. One member of the couple (the nonbiological parent) is represented by Squire Squre & Dempsey, presumably pro bono...

Ahmed v. Holder (9th Cir. - June 24, 2009)

Posted on June 25, 2009
What?! One of the chefs in the kitchen of an Indian restaurant in Koreatown (Makkah Halal Tandori) was an illegal immigrant from Bangladesh?! I'm shocked. Stunned. Whodathunk?

U.S. v. Overton (9th Cir. - June 18, 2009)

Posted on June 25, 2009
We (rightly) go out of our way to abbreviate the names of victims of sexual assault, particularly intrafamilial victims. As Judge Tallman does here.Given that fact, we should probably also be careful not to unnecessarily include in the opinion facts that make the identity of the victim crystal clear...

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