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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

Southern Union Co. v. Irvin (9th Cir. - Nov. 7, 2008)

Posted on November 07, 2008
The jury initially awarded Southen Union Company (a corporate plaintiff) around $400,000 in compensatory damages against the not-very-nice chairman of the Arizona Corporation Commission, and also awarded $60 million in punitive damages. That's a ratio of over 150 to 1, which, not surprisingly, didn't stand, and the Ninth Circuit reversed back in 2005...

U.S. v. Williams (9th Cir. - Nov. 6, 2008)

Posted on November 06, 2008
Sometimes you're reversing the district court based upon an error it has committed and you sort of feel good about that. But sometimes you're reversing the district court and feel bad about it -- or at least feel bad if you make the district judge feel bad...

Rogers v. Royal Carribean Cruise Lines (9th Cir. - Nov. 6, 2008)

Posted on November 06, 2008
Seamen, wages, and arbitration. Read all about it.P.S. - I'm sure this will be an additional entry into Force and Norris's aptly titled (but firmly tounge-in-cheek) multivolume work, "The Law of Seamen".

E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc. (9th Cir. - Nov. 5, 2008)

Posted on November 05, 2008
I've read a lot -- and I mean, a lot -- of opinions by Judge O'Scannlain. And I've seen a lot of good ones.But this one, in my view, is the most well-written of any of his opinions over past fifteen or so years. Concise. Funny. Insightful. Pithy...

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People v. Stier (Cal. Ct. App. - Nov. 5, 2008)

Posted on November 05, 2008
It should probably go without saying. But it's nonetheless worth expressly holding. As well as publishing (albeit somewhat belatedly).The police can't handcuff someone just because he's 6'6". If he's cooperative, and there's no real reason to believe he's a threat, you can detain him, but can't handcuff him...

Payne v. Rader (Cal. Ct. App. - Nov. 4, 2008)

Posted on November 04, 2008
It's an appeal. The deadlines are jurisdictional. So a single day matters. A lot.

People v. Garcia (Cal. Ct. App. - Nov. 4, 2008)

Posted on November 04, 2008
I read a lot of cases. But I don't think my eyes have ever glazed over as much as when I read this opinion.Maybe it was all that food I had at the lunchtime faculty meeting. Or the excitement of the election. Or, just maybe, the incredibly dry and complicated topic of the opinion, which involved a fact-specific calculation of the defendant's proper sentence...

Auerbach v. Assessment Appeals Board (Cal. Ct. App. - Oct. 30, 2008)

Posted on November 01, 2008
So the Ninth Circuit closes out October by not issuing any published opinions for three straight days, and then today, what does it come up with? Only this order (in a FERC case on remand from the Supreme Court that the Ninth Circuit simply remands back to the district court in a single paragraph) and this opinion (an immigration case in which submission was deferred pending an opinion in an earlier-submitted case and, at least as held by the majority, is on all fours with the Ninth Circuit precedent subsequently published in that case earlier this year)...

Apollo v. Gyammi (Cal. Ct. App. - Oct. 31, 2008)

Posted on October 31, 2008
Three straight days now with no published opinions from the Ninth Circuit. But, again, the California Court of Appeal takes up the slack. Including this opinion, which is definitely worth a read. Not because it establishes any critical precedent. But rather because it's an interesting set of facts...

Turner v. Association of American Medical Colleges (Cal. Ct. App. - Oct. 30, 2008)

Posted on October 30, 2008
For anyone who wants to take the MCAT, this is an important case. It's also important, by analogy, to those of us in the legal field. Especially those of us in the academy. Since what's good for the MCAT is almost certainly good for the LSAT as well. And, potentially, for law school exams as well...

In Re Charllisse C. (Cal. Supreme Ct. - Oct. 30, 2008)

Posted on October 30, 2008
The Ninth Circuit has taken the last couple of days off, at least as far as published opinions go. Fortunately, there's no rest for the weary in the California appellate courts.Today the California Supreme Court gives the following lesson about how to avoid dissent...

People v. Newby (Cal. Ct. App. - Oct. 29, 2008)

Posted on October 29, 2008
A woman named Julie tells her fiancee that she's breaking off the engagement and leaving him. The fiancee (William Newby) responds by "grab[bing] Julie by the throat and punch her in the face several times with his fist. Eventually falling to the floor, drifting in and out of consciousness, Julie watched as defendant continued the attack by kicking her in the face with his steel-toe boots...

U.S. v. Snellenberger (9th Cir. - Oct. 28, 2008)

Posted on October 28, 2008
I knew that Willie Fletcher was a former law professor. But I didn't know he was this influential.It's an en banc decision, the merits of which I'll put aside for a moment. It looks like a regular old split 7-4 decision. But it's got a twist. The majority opinion is per curiam...

People v. Conception (Cal. Supreme Ct. - Oct. 27, 2008)

Posted on October 27, 2008
Here's yet another reason not to attempt to escape from custody once your trial has started. Not only will they give the jury an adverse instruction about flight, but they'll also keep your trial going in your absence. Even if you're promptly caught...

Citizens for Civic Accountability v. Town of Danville (Cal. Ct. App. - Oct. 27, 2008)

Posted on October 27, 2008
Yes, we live in an electronic era. But that doesn't mean that California statutes are necessarily in the 21st century.So when California Rule of Court 8.104 says that you have 60 days to file an appeal from the date on which the Clerk mails the judgment to you, that's what it means...

U.S. v. Hinkson (9th Cir. - Oct. 20, 2008)

Posted on October 24, 2008
When the opinions span over 90 single-spaced pages and result in even ordinarily close colleagues being unusually snippy with each other (as I discussed here), don't be surprised if the case gets taken en banc. Which, indeed, happens here.So the vitriol -- from the panel opinion, at least -- won't be cited as precedent...

U.S. v. Fiander (9th Cir. - Oct. 23, 2008)

Posted on October 23, 2008
Contraband cigarette trafficking. It still exists. And while we can't charge members of the Yakima tribe (up in Washington) with substantive violations of the Contraband Cigarette Trafficking Act for not getting shipments approved in advance, we can, the Ninth Circuit held, charge them with a RICO conspiracy...

Styers v. Schriro (9th Cir. - Oct. 23, 2008)

Posted on October 23, 2008
One may perhaps take umbrage that it has taken 18 years for this death penalty case to work its way through the Arizona state system and finally get to the Ninth Circuit (after every court below denied relief). But you can't make the claim that the Ninth Circuit has inexcusably added to any such delay, as the oral argument was on August 20th, and the per curiam opinion was published today, two months later...

Mangano v. Verity (Cal. Ct. App. - Oct. 22, 2008)

Posted on October 22, 2008
I agree with Justice Mihara that the defendant employer here was entitled to summary judgment in its favor, as well as an award of post-998 offer costs (but not attorney fees). So I have no complaints about the merits.Still, I assume we can all agree that it's extremely unfortunate, albeit not tortious in the circumstances present here, that Thomas Mangano's supervisor (the CFO at Verity) repeatedly elected to call Mr...

El Dorado County Dep't of CSS v. Nutt (Cal. Ct. App. - Oct. 21, 2008)

Posted on October 22, 2008
I can't think of a more important use of social resources than for the government to bring and defend on appeal a child support action against a penniless three-strike prisoner who's in prison, not able to work, and eligible for parole as early as 2045...

New v. Kroeger (Cal. Ct. App. - Oct. 21, 2008)

Posted on October 21, 2008
The Episcopal Church has had a lot of defections recently as a result of its decision to ordain an openly gay bishop (just like, several decades ago, they had a lot of defections when they decided to ordain women). As a result, there have been several fights in secular courtrooms about who "owns" the property of a particular defecting church...

Mt. Holyoke Homes v. California Coastal Comm'n (Cal. Ct. App. - Oct. 21, 2008)

Posted on October 21, 2008
Sometimes it takes eighteen years before you can get approval to build a home near the coast. Sometimes it takes even longer. Here's proof.P.S. - I've recently read a couple of opinions, of which this is one, in which the author makes clear that a lot of things we call "waiver" aren't actually waiver at all, since they don't involve the deliberate extinguishment of a known right...

Estrada-Espinoza v. Mukasey (9th Cir. - Oct. 20, 2008)

Posted on October 20, 2008
A couple of years ago, Judge Alarcon wrote an opinion that said that you get deported if you have sex with someone who's 16 or 17. At least if that person is not your wife. It's a crime in California (since, in our fine jurisdiction, 18 is the age of consent), and even if you merely get put on probation, we still ship you out...

Porter v. Osborn (9th Cir. - Oct. 20, 2008)

Posted on October 20, 2008
Don't pull off on the side of the road in Alaska. You may well be killed. And it might be by the police.The chilling details, the keen sense that the shooting here was completely unnecessary, and the Ninth Circuit's aggressive holding that deliberate indifference isn't enough (and that you can only recover basically if the police tried to murder you for utterly no reason) are all here.

Cundiff v. Verizon Wireless (Cal. Ct. App. - Oct. 16, 2008)

Posted on October 17, 2008
You're killing me. The second straight day of no published opinions from the Ninth Circuit. And from the California appellate courts, here -- in toto -- is the entirety of what's been published today: "It is ordered that the opinion filed herein on September 30, 2008, be modified as follows: 'On page 8, the last sentence of the opinion is modified to read: ?Respondents to receive costs on appeal...

Fasuyi v. Permatex (Cal. Ct. App. - Oct. 15, 2008)

Posted on October 16, 2008
Nothing at all from either the Ninth Circuit or the California appellate courts today. What's a person supposed to do for recreational reading?Fortunately, late yesterday, the California Court of Appeal came out with this opinion. Which is one that you will definitely use if you ever want to get out of a default judgment...

O'Leary v. Aubrey (Cal. Ct. App. - Oct. 7, 2008)

Posted on October 15, 2008
Desert. Very little today. Nothing at all from the California Court of Appeal. From the Ninth Circuit, only a guidelines case, a standard of review case, and a "how much interest does one particular guy get on unclaimed property held for him by California" opinion...

Hoffman v. Citibank (9th Cir. - Oct. 14, 2008)

Posted on October 14, 2008
The Ninth Circuit remands -- "respectfully" (though I think they actually mean it this time) -- so the district court can apply the correct law in a more rigorous fashion than it did previously. Judge Trott concurs to basically slam the California Court of Appeals for not getting on the same page...

In Re Christopher Columbus (All Courts - Oct. 13, 2008)

Posted on October 13, 2008
It's Colubus Day. Which means very little to us working stiffs, but to the California Court of Appeal and the Ninth Circuit, it means a holiday. So no opinions today.Given the dearth (indeed, total absence) of opinions today, I thought I'd briefly make a random comment...

Sturgeon v. County of Los Angeles (Cal. Ct. App. - Oct. 10, 2008)

Posted on October 10, 2008
It's bad enough that your investments are plummeting, your house is worth only a fraction of what you paid for it, and your retirement accounts are completely tanking. But, in the midst of all of this, the Court of Appeal wants to make your weekend even worse...

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