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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

Hakopian v. Mukasey (9th Cir. - Nov. 19, 2008)

Posted on December 09, 2008
"I've got some good news and some bad news. Good news first. The United States was totally and completely wrong about your asylum application being time-barred. As was the immigration judge and the BIA below. So we're going to publish an opinion that not only makes that fact crystal clear, but that also preserves your name forever in the annals of the Federal Reporter...

Marley v. United States (9th Cir. - Dec. 8, 2008)

Posted on December 08, 2008
It's always interesting to see the myriad of ways attorneys trick pro se litigants into losing their case. Like here.Plaintiff -- initially represented by counsel -- files a timely FTCA case against the United States for medical malpractice. Plaintiff's attorneys then withdraw, after which an AUSA representing the U...

People v. Zavala (Cal. Ct. App. - Nov. 24, 2008)

Posted on December 05, 2008
Sometimes it takes a subtle legal mind to evaluate the complex doctrinal and policy implications of a particular legal principle on appeal in order to assess whether or not the Court of Appeal will reverse.Sometimes, not so much.Here's the opening paragraph of the opinion...

Robinson v. Woods (Cal. Ct. App. - Dec. 4, 2008)

Posted on December 04, 2008
I like the strategy here.Defendant files a motion for summary judgment. They file it more than the statutorily-required 75 days before the hearing date, but (1) forget to add 5 days for service by mail, and (2) impermissibly set the hearing for 18 days before trial (whereas the statute requires 30 absent a showing of good cause)...

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Ekstrom v. Marquesa at Monarch Beach HOA (Cal. Ct. App. - Dec. 1, 2008)

Posted on December 04, 2008
I concede that I'm somewhat personally invested in this decision, since I own an ocean-view home and the case involves whether or not homeowners can enforce a CC&R that requires neighbors to trim any trees -- here, palm trees -- that exceed the height of the home and thereby obstruct the views of other homeowners...

Andrzejewski v. FAA (9th Cir. - Dec. 3, 2008)

Posted on December 03, 2008
Melissa Andrzejewski may only be 22 years old (actually, 24 or 25 now), but she's a better pilot than you are. (Cuter, too, apparently.) Moreover, at least in a high-performance Zivco Edge 540, she may well be a better pilot than the people who watched her take off from the Butler County Airport in 2006...

Java Oil Ltd. v. Sullivan (Cal. Ct. App. - Dec. 2, 2008)

Posted on December 03, 2008
December 2nd was a bad day for several people: (1) California attorney Andrew Dimitriou (see yesterday's post); (2) non-California attorney John Brown (albeit in 1859); and (3) California quasi-attorney Harold Sullivan.The last of these three had a $3...

Huschke v. Slater (Cal. Ct. App. - Dec. 2, 2008)

Posted on December 02, 2008
Oh, sure. Make me look bad, California Court of Appeal. Immediately after I take umbrage at nothing being published today by either you or the Ninth Circuit, go ahead and publish five different opinions. Geeze.At least I don't look as bad as San Francisco attorney Andrew Dimitriou, though...

Lee v. An (Cal. Ct. App. - Nov. 19, 2008)

Posted on December 02, 2008
No published opinions today (at least thus far). What's the occasion? I know it's not Nevada Day. No opinions due to Special Education Day? Or the International Day for Abolition of Slavery? Or maybe we're celebrating the 185th anniversary of the enunciation of the Monroe Doctrine...

People v. Rubin (Cal. Ct. App. - Dec. 1, 2008)

Posted on December 02, 2008
Dude, I know you like weed. A lot. Really a lot.You are, indeed, the "Hollywood Wizard of Weed." At least according to the definitive source with respect to this issue; namely, High Times magazine.However, my friend, attention begets attention. In this case, from the LAPD...

Dietrich v. John Ascuaga's Nugget (9th Cir. - Dec. 1, 2008)

Posted on December 01, 2008
It's a random point, but I just wanted to share how much I appreciated footnote 3.The judgment in this case probably became final -- at least as to some of the defendants -- on September 27, 2006, and the notice of appeal was filed on Monday, October 30, 2006...

U.S. v. Murillo (9th Cir. - Dec. 1, 2008)

Posted on December 01, 2008
You want to know how you can tell when the Ninth Circuit doesn't like you? When it, inter alia, starts issuing published opinions that (1) reverse your judgments, (2) without the need for oral argument, (3) in two brief paragraphs, and (4) that further remand the case to a different judge...

U.S. v. Weyhrauch (9th Cir. - Nov. 26, 2008)

Posted on November 26, 2008
Here's a pre-holiday case that's interesting on a lot of levels.First, it involves yet another elected official from Alaska who's allegedly corrupt and criminally investigated and/or charged. Is there something in the water up there?Second, you gotta read the procedural history of this thing; in particular, how long (and how many times) it took for the government to get the thing properly certified so it could appeal the grant of a suppression motion...

In Re Cannon (Cal. Ct. App. - Nov. 25, 2008)

Posted on November 25, 2008
Prison inmates may well have a right to be served two hot meals a day pursuant to Section 5058 of the Penal Code and Section 3050(a)(2) of Title 15 of the California Code of Regulations, the latter of which provides that inmates in state prisons shall be "provided three meals each day, two of which shall be served hot...

Ventimiglia v. Board of Behavioral Science (Cal. Ct. App. - Nov. 17, 2008)

Posted on November 25, 2008
You're a licensed marriage and family therapist. You're treating an unstable client. Do I really have to say it?Don't have sex with her. Not once. And definitely not for 16 months.Human interactions are complicated. Plus, things are often more complex than they appear...

People v. Mentch (Cal. Supreme Ct. - Nov. 24, 2008)

Posted on November 24, 2008
The California Supreme Court held today that you're not a "primary caregiver" under the Compassionate Use Act merely because you're the one in charge of getting someone's pot. That's giving someone care, to be sure. But it doesn't mean that you're their "primary" caregiver...

People v. Cox (Cal. Ct. App. - Nov. 21, 2008)

Posted on November 21, 2008
We're heading into Thanksgiving Week. So how better to end the previous week than with an interesting Friday afternoon opinion by Justice Robie.I'm tempted to respond to the opinion on one of two different levels. First, on the practical side, Justice Robie holds -- and this is somewhat important, or at least interesting -- that you're apparently allowed in California to walk in the middle of the road, at least inside a residential or business district...

Doody v. Schriro (9th Cir. - Nov. 20, 2008)

Posted on November 20, 2008
Rarely -- and I mean, rarely -- do you have a court find that a confession was constitutionally involuntary. It's even more rare to make such a finding on federal habeas review, especially post-AEDPA. And it's rarer still for such a finding to be made in an extremely high-profile murder case...

Ahmed v. Mukasey (9th Cir. - Nov. 19, 2008)

Posted on November 20, 2008
There are not-very-competent attorneys in every field, of course. But my sense is that immigration law is one of those fields in which there are a higher proportion of attorneys who do extremely little -- or poor (or both) -- work without their client's knowledge...

People v. Connors (Cal. Ct. App. - Nov. 19, 2008)

Posted on November 19, 2008
I'm on board for what Justice Cooper says here. It's not the most heinous set of crimes ever, but, still, I'll be happy for the defendant to spend some time in the big house.I mention the case only because it doesn't make the probation department -- at least in L...

Ass'n of Irritated Residents v. San Joaquin Valley UPCD (Cal. Ct. App. - Nov. 19, 2008)

Posted on November 19, 2008
Animal pee and poop causes air pollution. So you need to talk about it more.That's a holding that even -- and perhaps especially -- my tiny children can understand.

Aguilar v. Aguilar (Cal. Ct. App. - Nov. 6, 2008)

Posted on November 18, 2008
Sometimes you read an opinion and think to yourself: "This is so clearly and obviously right. How could the other side even argue to the contrary? And -- worse -- how could the trial court have gotten it so obviously wrong? Both legally as well as equitably?"This is such an opinion...

Kachlon v. Markowitz (Cal. Ct. App. - Nov. 17, 2008)

Posted on November 17, 2008
Donald and Debra Markowitz buy a house from Mordechai and and Monica Kachlon, and include as part of this transaction a $53,000 second mortgage in favor of the sellers. Plus, thereafter, Mordechai does contractor home improvement work for the Markowitz's on the house...

Manco Contracting Co. v. Bezdikian (Cal. Supreme Ct. - Nov. 17, 2008)

Posted on November 17, 2008
When does California consider a judgment from Qatar "final" under the UFMJRA? What about Korea?Here's some insight into the answers to those scintillating questions from the California Supreme Court.

Cook v. Avi Casino Enterprises (9th Cir. - Nov. 14, 2008)

Posted on November 14, 2008
There's some very good stuff in here about diversity jurisdiction as applied to corporations created by Indian tribes. It's a neat little issue -- at least for those of us fascinated by procedure -- and a matter on which there's both a dearth of authority and reasonable grounds for dispute...

Hecht v. Paul Revere Life Ins. Co. (Cal. Ct. App. - Nov. 5, 2008)

Posted on November 13, 2008
I'm pretty impressed by anyone who can fully explain and adjudicate a case in nine short paragraphs. I think that's a rare talent, and not something that can be done (1) in most cases, or (2) by most people. And, to make clear, I include myself in the category of individuals in whom that talent does not reside...

Finnerty v. Board of Registered Nursing (Cal. Ct. App. - Nov. 13, 2008)

Posted on November 13, 2008
I knew that there were disputes at the margin about the chain of command in, say, the military. You can't just uniformly say you were "following orders" and be in the clear; there's a degree of professional judgment (albeit circumscribed) involved as well...

Hoopes v. Dolan (Cal. Ct. App. - Nov. 12, 2008)

Posted on November 12, 2008
It's always informative when California does something differently than the federal system. It's especially interesting when the difference involves something (as here) in which the divergence may be explained at least in part by the differential treatment of a historical relic...

Williams v. Russ (Cal. Ct. App. - Oct. 27, 2008)

Posted on November 11, 2008
Feel free to sue your lawyer. And to demand your client file, as is your right under the ethical rules. But don't then forget to pay the storage fees and let the files be destroyed. Otherwise we will dismiss your malpractice action as a sanction. And the Court of Appeal will affirm...

People v. Anderson (Cal. Ct. App. - Nov. 10, 2008)

Posted on November 10, 2008
Justice Duffy decides to publish this opinion today in an effort, I'm sure, to remind everyone not to touch your babysitter. Especially if she's 14 or 15. And even if your touching is only over her jeans and on her inner thigh (with, at most, touching the rim of her underwear)...

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