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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

Tin Tin Corp. v. Pacific Rim Park (Cal. Ct. App. - Feb. 2, 2009)

Posted on February 02, 2009
I imagine that sometimes the California Court of Appeal might want to say: "This case is complicated but really doesn't involve that much money at all. Can't the taxpayers just pay you to go away?"As in this one.It involves the interpretation of a dozen complicated commercial lease agreements, and involves claims and counterclaims by all the parties...

Quon v. Arch Wireless (9th Cir. - Jan. 27, 2009)

Posted on January 30, 2009
They're both UCLA Law School graduates with stellar credentials. They both are well-recognized women in Southern California. They were even both O'Melveny lawyers, and indeed overlapped for six solid years. So you're presume that they might be relatively tight, no?And yet this stuff is right out of Celebrity Deathmatch...

People v. Rodriguez (Cal. Ct. App. - Jan. 29, 2009)

Posted on January 29, 2009
It's strange enough when your husband takes everything out of the refrigerator and places the contents -- along with your family photographs -- on the floor surrounded by flowers as if for an altar or shrine. That's weird. To say the least.But after he convinces you, at 1:00 a...

People v. Adams (Cal. Ct. App. - Jan. 27, 2009)

Posted on January 28, 2009
Need proof that it's not the '60s and '70s anymore? Here you go.It's a guy who's mad at "the man" and who's trying to destroy police cars as a result. Sound familiar? But (1) he's acting alone; (2) he's homeless; (3) his "bombing" techniques leave much to be desired; (4) he's quickly caught, and (5) he's sentenced to 63+ years in prison.

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People v. Luna (Cal. Ct. App. - Jan. 22, 2009)

Posted on January 28, 2009
Even with my misspent youth and dubious slacker friends, I must admit that I was totally clueless as to how one makes hashish. And if this opinion had remained unpublished, I'd have remained that way.But dude! I, like, totally know how to make hash now! A spigot, PCV pipe, rubbing alcohol, grocery bags full of maijuana, and a crapload of butane is apparently pretty much all you need...

Veyna v. Orange County Nursery (Cal. Ct. App. - Jan. 15, 2009)

Posted on January 27, 2009
Unlike the Ninth Circuit, you don't see many opinions at all from the California Court of Appeal that are per curiam. So when it happens, as it does here, it's worth at least brief mention.My (somewhat uneducated) guess is that the Court of Appeal does so here because the ultimate result is the denial of a writ of supersedeas, and maybe the thought is that such a result in such a proceeding is best addressed in an opinion without individual authorship...

Gibson v. Office of Attorney General (9th Cir. - Jan. 27, 2009)

Posted on January 27, 2009
This one is close.I definitely agree with everyone on the panel that plaintiffs' claims are meritless. If you're an attorney with the government -- here, with the California Attorney General's Office -- you clearly don't have a First Amendment right to represent whatever clients you want on the side...

In Re Walter P. (Cal. Ct. App. - Jan. 15, 2009)

Posted on January 26, 2009
Yes, the maximum penalty for possessing a tiny amount of pot is a fine of $100. But if you're a juvenile, the state can also "ground" you (i.e., command "home supervision") for 45 days and make you do "chores" (i.e., spend eight days in the Juvenile Work Project program) as well...

Doe v. California Lutheran High School Ass'n (Cal. Ct. App. - Jan. 26, 2009)

Posted on January 26, 2009
I know that if I taught at a private high school -- say, for example, the California Lutheran High School in Wildomar -- I'd definitely spend my valuable time looking up the myspace pages of all the female students in my class to see if any of them said that they were bisexual or in love with another female student...

Sanai v. Saltz (Cal. Ct. App. - Jan. 26, 2009)

Posted on January 26, 2009
I'm impressed by this case on a variety of different levels.First, it tells a tale of litigation run amok. A tale that explains, in part, why some people hate lawyers; and, in particular, engaging in transactions with them. It all starts back in 1997 -- over a decade ago -- when Cyrus Sanai rents an apartment in Newport Beach...

Legal Services for Prisoners With Children v. Bowen (Cal. Ct. App. - Jan. 22, 2009)

Posted on January 23, 2009
I could write at length about this case, which raises a fascinating (and wonderful) issue regarding whether the disenfrancisement of felons under the Fourteenth Amendment for committing a "felony" is limited only to the commission of a felony at common law...

U.S. v. Selby (9th Cir. - Jan. 15, 2009)

Posted on January 22, 2009
If I'm a federal official who gets my spouse a job with a government contractor and then helps work flow that way, once the jury comes back and convicts me of (1) honest services wire fraud, (2) making false claims and statements, and (3) felony conflict of interest, I'm probably going to be freaking out...

In Re Jose C. (Cal. Supreme Ct. - Jan. 22, 2009)

Posted on January 22, 2009
I agree that it's an interesting problem, and one that I hadn't thought about before. On the one hand, there's the state's obvious interest in controlling juvenile delinquency, an interest that's reflected by (amongst other statutes) Section 602 of the Welfare and Institutions Code, whch grants state court the power to declare any juvenile who "violates any law ...

People v. Kenefick (Cal. Ct. App. - Jan. 15, 2009)

Posted on January 21, 2009
Shelley Kenefick ran a Ponzi scheme that defrauded six investors, some of them elderly, of $890,000. She's convicted in California state court and receives a sentence of 16+ years in prison.Let's remember that and compare it to what Madoff -- who (allegedly) defrauded thousands of victims, including the Elie Wiesel Foundation (!) -- of billions of dollars eventually receives...

In Re Vasquez (Cal. Ct. App. - Jan. 21, 2009)

Posted on January 21, 2009
Maybe I can save everyone a little bit of time. Just cut-and-paste the following and fill in the blanks:"Petitioner _________ was convicted of murder a long, long time ago, in ________. Since then, he has been almost/entirely discipline-free -- and has accomplished a great deal of positive things -- while in prison...

People v. iMergent, Inc. (Cal. Ct. App. - Jan. 20, 2009)

Posted on January 20, 2009
As Captain Renault might say in the modern era: "What?! Companies that produce infomercials pitching do-it-yourself web storefronts at $4700 a pop often encourage and take advantage of unrealistic expectations of unsophisticated consumers?! I'm shocked! Shocked!"Fortunately, the law is not so deliberately blind...

Phillip Morris USA v. King Mountain Tobacco Co. (9th Cir. - Jan. 20, 2009)

Posted on January 20, 2009
Hmmm. Phillip Morris versus King Mountain Tobacco Co. Hard to know which side (if any) to root for, eh?Ultimately, the case actually comes down to tribal exhaustion principles. And the panel clearly gets it right in holding that tribal exhaustion doesn't apply here...

Minasyan v. Mukasey (9th Cir. - Jan. 20, 2009)

Posted on January 20, 2009
It's a new day. A new president. A new blog format.Everything old is new again. Let the fun begin.Meanwhile, back in the appellate world, we get to decide fascinating questions of statutory interpretation. Such as: What's a "year"?That may facially appear to be an easy question...

Doe v. AOL (9th Cir. - Jan. 16, 2009)

Posted on January 16, 2009
It's a rare day that I'm unable to do some quasi-recreational reading of opinions and talk about them. But with an all-day mediation and Restaurant Week here in San Diego -- both of went swimmingly -- yesterday was such a day.Today, by contrast, it's a lazy academic day...

People v. Harbert (Cal. Ct. App. - Jan. 14, 2009)

Posted on January 14, 2009
I wasn't at the trial. But I can read. And Justice Richman does a very good job of summarizing the testimony. Given what I've read, I'm pretty darn confident that Lee Harbet was guilty of a hit-and-run. And that, though not convicted of the offense, he was totally drunk (after a seven hour "meeting" at a restaurant/bar) when he hit and killed 55-year old Gardeep Kaur with his Jaguar...

Rubke v. Capital Bancorp (9th Cir. - Jan. 13, 2009)

Posted on January 14, 2009
Here's something that doesn't happen every day: a Ninth Circuit judge publishing an opinion on the same day a leading constitutional scholar calls for his impeachment.For the record, while I respect Ackerman's work and intellect, I think he's wrong on this one.

Kaiser v. Abbott Labs (9th Cir. - Jan. 13, 2009)

Posted on January 13, 2009
It's an HMO versus a large pharmaceutical company. So I know many people will find it hard to root for either side.But it's also a very interesting patent and antitrust dispute, and for those in the hard core intellectual property field, a definite must read...

In Re Grunau (Cal. Ct. App. - Dec. 30, 2008)

Posted on January 13, 2009
There are good appellate lawyers, there are great appellate lawyers, and there are bad appellate lawyers.You can't get much worse than this.

Riverside County Sheriff's Dep't v. Zigman (Cal. Ct. App. - Dec. 23, 2008)

Posted on January 12, 2009
You're a cop. So's your spouse. He's been extremely irritable lately, so you ask him what's up. He says he's been using meth. Plus stealing it from suspects and others at work.What do you do?Wholly beyond the resulting ethical issue, there's also a legal one...

Gonzalez v. Duncan (9th Cir. - Dec. 30, 2008)

Posted on January 12, 2009
Judge Bybee is a scholar. And even if you didn't know that before, you can tell it from this opinion. Which is written precisely how you'd expect a former law professor to write (at least on this topic).Personally, I like it. It's a comprehensive, structured, coherent, and (in my mind) persuasive analysis of the issue...

In Re Noelle M. (Cal. Ct. App. - Dec. 16, 2008)

Posted on January 12, 2009
Don't steal your grandmother's methadone pills (!) and sell them to your friends at a high school football game.People could -- indeed, did -- die.A seemingly obvious message. And yet one that apparently bears repeating.

Espinoza v. Calva (Cal. Ct. App. - Jan. 7, 2009)

Posted on January 12, 2009
This is what passes for justice in Orange County?!It's a short opinion, so feel free to read the whole thing. That a judge would think that this was okay more than a little bit surprises me. I mean, come on.

U.S. v. Kaczynski (9th Cir. - Jan. 9, 2008)

Posted on January 09, 2009
Let's start out by admitting that you're not the most sympathetic party in the universe when you're the Unabomber. Let's double that when, arrayed on the other side, are the victims of your crimes. I think we can all agree that, emotionally, you've got a pretty steep hill to climb -- regardless of the potential merits of your arguments -- in convincing the Ninth Circuit that you deserve relief...

Prospect Medical Group v. Northridge Emergency Medical Group (Cal. Supreme Ct. - Jan. 8, 2009)

Posted on January 08, 2009
I won't say much about this opinion except to say that (1) it's important to anyone who's in an HMO in California, and (2) it's unanimous, which I think tells you a little bit about the merits. Justice Chin holds that even if the HMO doesn't have an agreement with an emergency room physician, the physician can't bill the patient ("balance bill") for any amount charged by the doctor that the HMO decides it won't pay...

Brewer v. Premier Golf Properties (Cal. Ct. App. - Dec. 3, 2008)

Posted on January 08, 2009
Here's an appeal that I couldn't have adjudicated. Since I (a) played golf at this course (several times), (b) had the plaintiff as my waitress (ditto), (c) am sure I tipped her as part of the "generous" afternoon, as opposed to cheap morning, crowd (ditto), and (d) am probably -- sadly -- part of the "old" golfer crowd that the manager of the facility allegedly wanted to get rid of in favor of "young high-rollers" (definitely not me)...

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