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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

People v. Flores (Cal. Ct. App. - April 20, 2009)

Posted on April 20, 2009
The situation in Riverside is perhaps better -- at least slightly -- than it once was. But it's still a nightmare. Take a look at this if you don't believe me.It used to be that you didn't get any civil trials at all. Now you get them, thanks to special dispensation, once in a blue moon...

U.S. v. Santacruz (9th Cir. - April 20, 2009)

Posted on April 20, 2009
Some cases resolve themselves. For example, one in which the sole question presented is: "Does a conviction for possession of child pornography constitute a 'crime of moral turpitude'"?Duh.

Century 21 v. Haberman (Cal. Ct. App. - April 17, 2009)

Posted on April 17, 2009
I'm not so sure.Do I agree with Justice Ikola that the complaint here isn't subject to an anti-SLAPP motion? Sure I do. The first count was to recover a $200,000 loan and $14,000 in interest. That's just a routine money claim and isn't a SLAPP. The second count was for a declaration that the plaintiff doesn't have to arbitrate...

Millenkamp v. Davisco Foods Int'l (9th Cir. - April 14, 2009)

Posted on April 16, 2009
It's 2009. Computers are the size of walnuts. We're preparing for a mission to Mars. It's a brave new world.But the more things change, the more they stay the same. So I'll summarize this case, which comes (not surprisingly) from Idaho, in four simple words:"You killed my cows...

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World Financial Group v. HBW Ins. & Fin. Svcs. (Cal. Ct. App. - April 16, 2009)

Posted on April 16, 2009
The thing about the anti-SLAPP statute is that it's sufficiently powerful to be abused. Like here.There's no way that the conduct here counts as "protected activity". The trial court and Court of Appeal find as much. And it's not even close. But defendants still get to obtain a stay of the action below (as well as increase the fees associated with prosecuting the matter) by making an anti-SLAPP motion that, in my view, borders on (but likely doesn't cross) the frivolous...

Mega Life & Health Ins. Co. v. Superior Court (Cal. Ct. App. - April 14, 2009)

Posted on April 15, 2009
There are a couple of things that may facially appear to mean something but that actually mean nothing of the sort.So, for example, in this case, we see Justice Richli pointedly refer to Section 3523 of the California Civil Code, which states: "For every wrong there is a remedy...

General Mills v. FTB (Cal. Ct. App. - April 15, 2009)

Posted on April 15, 2009
I can't think of a better day for this opinion to be published. You think your taxes -- due today, by the way -- are complicated? Think how tough it must be for unitary corporations with subsidiaries in California to figure out their respective state tax liability for forward and derivative contracts...

U.S. v. Felix (9th Cir. - April 13, 2009)

Posted on April 14, 2009
Let me take you -- if you'll have me -- on a digression. But for a good cause. Because it relates to an issue about which I've never devoted much thought, but which I nonetheless had occasion to examine earlier today.We all know the usual rules about practicing in court...

Vidrio v. Hernandez (Cal. Ct. App. - April 13, 2009)

Posted on April 13, 2009
If I were Judge McKnew (up in Los Angeles), here's what I'd say about this opinion, which reversed his $1857.50 sanction award: "Okay. You got me. I was angry that Mercury Insurance Company attended a mandatory settlement conference and (1) negotiated in total bad faith by never offering more than $1000, and (2) being rude to me personally...

People v. Smith (Cal. Ct. App. - April 9, 2009)

Posted on April 10, 2009
You're sitting in your car, minding your own business, in the parking lot of a motel. A cop sees you and starts questioning you, and you even consent to a patdown search and a search of your car, which finds nothing. What's the reasonable suspicion? Nothing...

People v. Dyke (Cal. Ct. App. - April 9, 2009)

Posted on April 09, 2009
Let me reiterate -- and expand upon -- what Justice Rivera holds today in this opinion.(1) As a preliminary matter, it's not okay to touch a 16-year old sophomore. Particularly when she's the friend of your daughter. I think David Dyke knows that now, and knew it then as well...

People v. Earle (Cal. Ct. App. - March 19, 2009)

Posted on April 09, 2009
It's the rare case in which the Court of Appeal will find that the consolidation of two criminal charges against a defendant results in reversible error. This is such a case.Or at least that's the opinion of Justice Rushing, who writes a very powerful -- and lengthy (46-page) -- opinion...

In Re Marriage of Corona (Cal. Ct. App. - April 7, 2009)

Posted on April 08, 2009
If you're (1) an attorney in San Diego, (2) have a heavily litigated (and somewhat nasty) divorce case, (3) the merits of which involve extensive disclosure of your (and your ex-wife's) assets and property settlement agreement, and (4) not only lost but were sanctioned $5000 below, one of the bad things that can happen on appeal is that you lose your appeal in a published decision...

In Re R.W. (Cal. Ct. App. - April 8, 2008)

Posted on April 08, 2009
I understand that this is a dependency case, in which we're (sadly) used to seeing some pretty atrocious facts. For that reason, I can understand and appreciate the following sentence from Justice Fybel's opinion, which nonetheless made my ears perk up, both as a parent and as an educator:"R...

K.J. v. Arcadia USD (Cal. Ct. App. - April 7, 2009)

Posted on April 07, 2009
Being in love is a sufficient excuse. Or, to put it as Justice Klein does:"Under the delayed discovery doctrine, accrual of a cause of action is postponed until the plaintiff discovers, or has reason to discover, the cause of action. Here, K.J. alleged the perpetrator exploited her age of minority, vulnerability and confidence to seduce her into an unlawful and harmful sexual relationship, she believed she was in love with him and that he had done nothing wrong, and she lacked a real awareness that she had been victimized until July 2007, when she gained that insight through psychotherapy...

Fones4All Corp. v. FCC (9th Cir. - April 7, 2009)

Posted on April 07, 2009
"Notwithstanding your claim that there's an intercircuit conflict, not a single judge -- and we've got a lot of them -- has voted in favor of your petition for rehearing or requested a rehearing en banc. We know your next step will be to file a petition for certiorari in the Supreme Court that raises the same 'intercircuit conflict' argument you raised here...

People v. Samaniego (Cal. Ct. App. - April 6, 2009)

Posted on April 06, 2009
Anyone who listens to Los Angeles traffic reports has heard of "Tujunga," which is a community north of L.A. off the 210 (heading out from Pasadena to the Cajon Pass or Simi Valley). As in: "There's a huge backup on the 210 at Tujunga, so those of you trying to get home during rush hour might as well stay at work for all the good it's going to do you to fight rush hour...

Al Mutarreb v. Holder (9th Cir. - April 6, 2009)

Posted on April 06, 2009
Improper service. Failure to check a particular box. Leaving the record blank. For a sense of all the various procedural things that can go wrong in a deporatation case, here you go.I think that Judge Berzon is right to be a stickler here. We generally shouldn't deport someone in absentia and with no real evidence produced against him unless there's a darn good reason to do so...

People v. Dawson (Cal. Ct. App. - April 2, 2009)

Posted on April 03, 2009
There's a lot in here that I think we all can agree with. Including but not limited to the opening line of Justice Richman's opinion, in which he says: "We see, yet again, the tragic consequences that can result from the mixture of boating and alcohol?here, the death of Mark Spier...

In Re Masoner (Cal. Ct. App. - April 2, 2009)

Posted on April 02, 2009
The plethora of parole-denial appeals that flood the system nowadays typically involve murder convictions in which the parole board (or Governator) denies parole to a seemingly rehabilitated murderer who's spent a lot of time in prison. This case is no exception...

Kauer v. Holder (9th Cir. - April 1, 2009)

Posted on April 01, 2009
It's perhaps appropriate that this opinion gets published on April Fool's Day. Because some may find it a joke -- a sad, pathetic joke -- that people can get deported based upon secret evidence that they have no abilty to dispute. The Ninth Circuit, however, thinks it's not so funny...

Bradley v. Gilbert & Kelly v. Human Rts Campaign (Cal. Ct. App. - April 1, 2009)

Posted on April 01, 2009
What is it about this date? Both of the opinions published by the Court of Appeal today (one from the Second District, here, and one from the Third, here) deal with disputes involving $1M+ estates. I'd expect that on, say, All Soul's Day, but not April 1...

Hunt v. Imperial Merchant Svcs (9th Cir. - March 31, 2009)

Posted on March 31, 2009
Here's a neat little procedural case. That concerns those somewhat unique situations in which, as here, the district court may properly order a defendant to pay for the initial costs of notifying the class members; for example, when (again, as here) the district court has already determined liability prior to certification...

Maropulos v. County of Los Angeles (9th Cir. - March 24, 2009)

Posted on March 31, 2009
Reading between the lines: "Qualified immunity appeals are difficult enough without the district court making it harder by merely stating: 'Motion denied.' When that's all we see, we can't tell if it's an insufficiency of the evidence problem (for which appeals are not available) or otherwise...

People v. Chun (Cal. Supreme Court - March 30, 2009)

Posted on March 30, 2009
This is the type of work you can do when -- as a court -- you've got a little extra time on your hands. And that's a good thing.Justice Chin writes a very long and good opinion about the second-degree felony murder rule and the related merger doctrine...

People v. Hernandez (Cal. Ct. App. - March 24, 2009)

Posted on March 30, 2009
Justice McIntyre (and the rest of the panel) is totally right in this one. Taking property -- even allegedly stolen property -- from a pawnbroker without notice or an opportunity to be heard is indeed a violation of their procedural due process rights...

U.S. v. Ferguson (9th Cir. - March 27, 2009)

Posted on March 27, 2009
What does one do with a defendant who's (1) mentally competent to stand trial (under our incredibly lax standards in that regard); (2) wants to represent himself; and (3) is capable of only utter gibberish in his attempt to do (2)?Like Judge Spencer Letts, I've never seen anyone who was so uniformly freakishly out of it as this defendant...

Ramirez v. City of Buena Park (9th Cir. - March 27, 2009)

Posted on March 27, 2009
Let me tell you a story. Two stories, in fact. A Tale of Two Police Encounters.The first has been in the news a lot over the past week. Ryan Moats ran a red light and was pulled over by a police officer in the Dallas suburb of Plano, Texas. Moats was rushing to the hospital to visit a dying relative, and explained this fact to the officer -- indeed, the stop was right outside Baylor Regional Medical Center -- but the officer didn't much care...

Sanchez v. Holder (9th Cir. - March 26, 2009)

Posted on March 26, 2009
Here's a prototypical example where the facts are good but the law is bad.The question is whether Mario Sanchez is a person of "good moral character". You can read Judge Pregerson's dissent in its entirety -- and it's very good on this point -- to get a complete sense of why Mr...

Long Beach Mem. Med. Cntr. v. Superior Court (Cal. Ct. App. - March 26, 2009)

Posted on March 26, 2009
It's very rare for an appellate court to find that an arms-length six-figure payment is insufficiently high to qualify as a good faith settlement under CCP 877.6 and -- on a writ, no less -- reverse the trial court's good faith finding as an abuse of discretion...

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