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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 K.P. (Cal. Ct. App. - June 22, 2009)

Posted on June 25, 2009
Occasionally you need very few facts to figure out how a dependency petition is going to come out, even if it's contested. Like here."In May 2005, another dependency petition was filed alleging jurisdiction of J.P., K.P. and J.M. (collectively, the minors) under section 300, subdivisions (b), (c), and (g) (no material support), following domestic violence between the mother and the father leading to the mother?s arrest...

Warfield v. Bestgen (9th Cir. - June 24, 2009)

Posted on June 24, 2009
So I obviously now know how much influence I have on the Ninth Circuit. Yesterday I tell the court to slow down -- to pace themselves -- and crank out so many opinions at once. They issued ten today. So, dutifully, they follow my counsel. How many published opinions today? Ten...

In Re Complaint of Judicial Misconduct (9th Cir. - June 24, 2009)

Posted on June 24, 2009
The thing about people like Chief Judge Kozinski is that they're so smart, and subtle, that it's sometimes hard to figure out if they're being deliberately sly or merely stumbling into saying something that may have a broader ramifications than they intended...

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

Posted on June 23, 2009
Whoa. Pace yourself.The Ninth Circuit's publications today are in the double digits. Spread 'em out, my friends. Too much work for our hero.I can, however, summarize -- abeit at a superficial level -- pretty much all of the opinions issued today. The majority of them are criminal cases...

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Bakersfield Energy Partners v. CIR (9th Cir. - June 17, 2009)

Posted on June 23, 2009
Next time you wonder whether the rich are able to come up with fancy ways to get out of paying taxes, check this one out.Good to know we're all paying our fair share. [Insert dripping sarcasm here.]

People v. Medina (Cal. Supreme Ct. - June 22, 2009)

Posted on June 22, 2009
Sometimes you can get the most accurate sense of a judge -- or anyone, for that matter -- by his or her reaction to close cases. For example, take this case. Someone says "Where you from?" and a fistfight starts between three gang members on one side and a sole gang member on the other...

Lahr v. NTSB (9th Cir. - June 22, 2009)

Posted on June 22, 2009
I'm not a conspiracy nut. In the slightest. True conspiracies are freakishly hard to keep secret, and generally the alleged motivations for them aren't sufficiently strong to justify the potential downside.I mention this only because while I don't believe there's a grand conspiracy, as I was reading this case earlier today, I was nonetheless struck by the underlying facts...

Bisno v. Douglas Emmett Realty Fund (Cal. Ct. App. - June 19, 2009)

Posted on June 19, 2009
This is a tough rule to apply in practice, if only because after litigating a case for a long while, lawyers often lose their objectivity and come to believe their own arguments. (I'm guilty of this sin as well, though I attempt to realize and compensate for it...

In Re Warren (9th Cir. - June 18, 2009)

Posted on June 18, 2009
Unless you've got an abnormally high interest in the automatic disclosure and dismissal rules in bankruptcy cases, you can largely skip this one from the Ninth Circuit today.Except for footnote 1. Judge T.G. Nelson discusses therein the use of nunc pro tunc orders, and where and when they're appropriate...

United Rentals Northwest v. Snider Lumber Products (Cal. Ct. App. - June 18, 2009)

Posted on June 18, 2009
There's only so far that "plain language" and the alleged "unambiguity" of a statute can take you. At least in my view.Take this case, for example. At least from reading Justice Wiseman's opinion, it seems one of the easiest case in the universe. Defendants own a sawmill upon which 10 lumber drying kilns -- essentially, buildings 68 feet long, 14 feet wide, and 20 feet tall where lumber was heated and dried -- are located...

Vernoff v. Astrue (9th Cir. - June 17, 2009)

Posted on June 17, 2009
I'm the parent of three children -- and, next month, if all things go as planned, a fourth -- and there's no doubt I'm the father of each of them.But particularly in the modern era, the answer to the seemingly simple question "Who's your daddy?" is not always so facile...

People v. Dillon (Cal. Ct. App. - June 16, 2009)

Posted on June 17, 2009
Check me on this one. Annette B. is a victim of sexual assault in San Francisco on New Year's Eve of 2005. She's recently done a little coke, and has been drinking. She gets sexually assaulted by a stranger in the street, and his defense is consent...

Paterson v. City of Los Angeles (Cal. Ct. App. - June 16, 2009)

Posted on June 16, 2009
As I read this opinion, which (on the merits) seems right to me, I was hoping that someone would say exactly what Justice Mosk says in his brief (two-paragraph) concurrence.An officer with the LAPD calls in sick. A lieutenant with the LAPD believes he's faking it, and abusing sick leave (apparently, you've actually got to be sick in order to get the leave), so instructs a sergeant to check it out by going to the officer's home...

Holley v. Yarborough (9th Cir. - June 16, 2009)

Posted on June 16, 2009
When Judges Kleinfeld, Nelson and Milan Smith agree that the criminal defendant deserves a writ (in an AEDPA case, no less), you know it's got to be a fairly strong claim. As indeed it is.Two minor points. First, I thought that footnote two was extremely interesting (as well as long), and I might have put that one in the text...

People v. Avila & Dykes (Cal. Supreme Ct. - June 15, 2009)

Posted on June 15, 2009
Not that there's ever a good day to be on death row in California, but for at least two people, today's an even worse day than normal.Not that this is massively surprising. But you do have the California Surpeme Court unanimously affirming two different death penalty cases today...

People v. Meredith (Cal. Ct. App. - June 15, 2009)

Posted on June 15, 2009
Everyone admits it was wrong for the trial court to start the criminal jury trial with the defendant still wearing his prison orange jumpsuit. But Justice Hull seems right that given the evidence at trial, there's no real doubt that the defendant was guilty, or at least that the whole jumpsuit thing didn't matter...

City of Las Vegas v. FAA (9th Cir. - June 12, 2009)

Posted on June 12, 2009
What's a FONSI/ROD look like? And, no, the proper response is not "Ask Pinky Tuscadero".Here's the true answer. Hint: You can now get into and out of town a tiny bit faster -- always important, particularly in Las Vegas -- and the probability that you have to circle the city is a bit lower.

Gilbert St. Developers v. La Quinta Homes (Cal. Ct. App. - June11, 2009)

Posted on June 12, 2009
There's no place better than the 4/3 to find interesting writing styles. By which I mean, of course, Division Three of the Fourth Appellate District. Or, to the rest of the nation, "The O.C."Among those on the 4/3 who adds flair to the traditional content of judicial opinions is Justice Sills...

Alex O. v. Superior Court (Cal. Ct. App. - June 10, 2009)

Posted on June 11, 2009
I'm glad the Justice Benke decided to publish this opinion. It's important. In large part because I agree with her that it's unconstitutional for a court to tell a U.S. citizen who lives in Mexico that he can't come to the U.S. except to attend school, work, or visit his family...

San Diego Police Officer's Ass'n v. San Diego CERES (9th Cir. - June 10, 2009)

Posted on June 10, 2009
Ah, San Diego. The sun. The beaches. The luxury. The disastrous pension situation.The case out of the Ninth Circuit this morning is but a tiny sliver of the legal disputes generated by the latter. But it's an interesting one, if only because few people are aware that parts of the pension dispute involve -- of all things -- claim preclusion and the Contracts Clause...

Enrique M. v. Angelina V. (Cal. Ct. App. - June 10, 2009)

Posted on June 10, 2009
I'm not at all saying that Justice Aaron -- or the trial court, for that matter -- gets this one wrong. Lots of the dispute is fact-specific about what's best for this particular kid; what his last name should be, where he should go to middle school, etc...

People v. Ugalino (Cal. Ct. App. - June 9, 2009)

Posted on June 09, 2009
There are certain advantages that accrue from attending law school. For example, if you've just committed first degree robbery, and have been caught by the police, you're unlikely to tell them -- as Del Ugalino did here -- that "you can't arrest me for ripping off a drug dealer...

Farb v. Superior Court (Cal. Ct. App. - June 2, 2009)

Posted on June 09, 2009
You and your wife hired a surrogate back in '93 . She got pregnant with twins in January of '94, but shortly thereafter, you not only decided that you didn't want children with your wife, but you didn't want her at all. You left her, and your divorce was final in May of '94...

People v. Haller (Cal. Ct. App. - June 9, 2009)

Posted on June 09, 2009
It's one thing to say that a sentence of 78 years to life (for which the defendant will be eligible for parole, at the earliest, when he's 119) isn't "cruel and unusual" for a defendant who left threatening messages for his ex-wife and then drunkenly showed up at her house with a knife, only to be promptly shot in the groin by her shotgun-toting husband...

Doppes v. Bentley Motors, Inc. (Cal. Ct. App. - June 8, 2009)

Posted on June 08, 2009
Oh, the trials and tribulations of wealthy residents of Orange County. For example, that my new Bentley simply does not smell correctly. I'll take a quarter million for that, thank you very much.Admittedly, if I dropped a boatload of cash on a Bentley, I'd want it to smell pretty darn good as well...

Unlimited Adjusting Group v. Wells Fargo Bank (Cal. Ct. App. - June 4, 2009)

Posted on June 05, 2009
I'll admit it in advance. I'm a moron.I keep reading and rereading this case to try to understand it. But I just can't get my head around it. Justice Mosk does a wonderful job writing a seventeen-page "UCC For Dummies" primer precisely for people like me...

CFIT v. VeriSign (9th Cir. - June 5, 2009)

Posted on June 05, 2009
They say that IP's on the decline and that antitrust is the new hot field (again).Here's some proof. Alongside a neat little overlap.

Nelson v. NASA (9th Cir. - June 4, 2009)

Posted on June 04, 2009
Most of the opinions from the Ninth Circuit get published at 10:00 a.m. But sometimes, particularly with en banc denials (and associated opinions), they dribble in thereafter. Which happens today. To the tune of five different missives in Nelson v...

People v. Gerold (Cal. Ct. App. - June 3, 2009)

Posted on June 04, 2009
"Not Guilty By Reason of Insanity" does not mean "Innocent". At least for purposes of expunging your records.

Catholic League v. City and County of San Francisco (9th Cir. - June 3, 2009)

Posted on June 03, 2009
This is a long opinion, and entails an elaborate discussion of the Establishment Clause as applied to a fairly unique set of facts. If you're interested in conflicts between Church and State, reading the whole thing is time well spent.That said, I can summarize the dozens of pages of single-spaced text fairly concisely...

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