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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

McCluskey v. Henry (Cal. Ct. App. - Nov. 2, 2020)

Posted on November 04, 2020
I readily admit that prosaic appellate opinions in California are probably not the highest priority for pretty much anyone in the post-election too-close-to-call-refreshing-my-screen-every-five-minutes era. Still, we have some opinions coming out -- albeit not all that many...

Y.A. v. S.A. (Cal. Ct. App. - Nov. 3, 2020)

Posted on November 03, 2020
For some reason, I have a different reaction to this case than I typically have to cases arising out of our adversary system.Normally, I'm pretty much fine with mandatory appeals, appointed counsel, vigorous argument, and the like. Take criminal cases, for example...

People v. Stockman (Cal. Ct. App. - Nov. 3, 2020)

Posted on November 03, 2020
Christopher Stockman is driving while intoxicated and hits a bicyclist from behind, killing him. Mr. Stockman blows a .18 and .19 when he's tested, and has a BAC of .14 in a blood sample taken two hours after the accident. So the guy's fairly clearly driving drunk when he hits and kills someone...

Coleman v. Saul (9th Cir. - Nov. 2, 2020)

Posted on November 02, 2020
There's only one published opinion from the Ninth Circuit and California appellate courts thus far today. And when I first saw it, I thought it wouldn't likely be something worth writing about. It's a Social Security disability case. You see those published from time to time...

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Olson v. Lyft (Cal. Ct. App. - Oct. 29, 2020)

Posted on October 29, 2020
Here's an interesting way to write an opinion. You typically don't see the identities of the appellate counsel getting so much play, particularly so early in the opinion.The style you're used to seeing in a case like this would go something like: "Lyft claims that Brandon Olson must bring his Private Attorney General Act ("PAGA") claims in arbitration, but we agree with the California Supreme Court and a recent opinion from the Court of Appeal that arbitration for PAGA claims cannot be required...

U.S. v. Singh (9th Cir. - Oct. 28, 2020)

Posted on October 28, 2020
You can tell that the opinion is going to be a fairly lengthy one when the summary prepared by the staff of the Ninth Circuit is, as here, six pages long (and replete with innumerable bullet points).Among other things, the opinion resolves whether legally admitted foreign citizens have a constitutional right to (1) possess guns, and (2) make political contributions in U...

Dix v. Live Nation (Cal. Ct. App. - Oct. 26, 2020)

Posted on October 26, 2020
Someone who puts on an electronic music festival -- here, Live Nation -- owes a duty to protect its patrons from overdosing on MDMA.So holds the Court of Appeal.

People v. Foley (Cal. Ct. App. - Oct. 23, 2020)

Posted on October 23, 2020
Jeffrey Foley is the grandfather of identical twins. He molests one of them, who immediately reports it, and he's tried and convicted and sentenced to three years in prison.After that conviction, approximately two years later, the other identical twin reported that she too had been molested by her grandfather...

U.S. v. Alhaggagi (9th Cir. - Oct. 22, 2020)

Posted on October 22, 2020
Both the majority and the dissent agree that Amer Alhaggagi is a messed-up kid. They just disagree over the nature of the mess.Judge Smith thinks he's a braggart 21-year old online troll. He was born in Lodi, California to Yemeni immigrants, but after 9/11 his mother moved him and his five siblings to Yemen, while his father stayed in the United States...

Guerrero v. Hestin (Cal. Ct. App. - Oct. 21, 2020)

Posted on October 21, 2020
"In 2014, a single Riverside County Superior Court judge signed 602 orders authorizing wiretaps. To put that in perspective, all other judges in the state authorized 345 wiretaps that year. And the 602 wiretaps that year comprised approximately 17 percent of all the wiretaps authorized by all the state and federal courts in the nation...

People v. Wilson (Cal. Ct. App. - Oct. 21, 2020)

Posted on October 21, 2020
Don't send kiddie porn over gmail. Google looks for it.It's a fairly chilling case from San Diego about how various women get "groomed" into participating in child pornography. The person who groomed 'em gets 45 years to life; I very strongly suspect he'll die in prison (and, given the typical treatment of these offenders in prison, that his experience there will not be pleasant in the slightest)...

Ortega-Lopez v. Barr (9th Cir. - Oct. 20, 2020)

Posted on October 20, 2020
What a difference the panel makes.Agustin Ortega-Lynch gets caught helping to organize a cockfight, and the United States wants to deport him to Mexico as a result. The dispositive question is whether aiding and abetting a cockfight is a "crime involving moral turpitude" ("CIMT")...

People v. Hendrix (Cal. Ct. App. - Oct. 19, 2020)

Posted on October 19, 2020
In one way, it's a routine offense: burglary. But in many ways, it's a strange couple of crimes. There's clearly something about Mr. Hendrix that is . . . off.The first crime is at a Costco. "Appellant was stopped by a Costco employee after he tried to enter the Oxnard store without a membership card...

People v. Villa (Cal. Ct. App. - Oct. 16, 2020)

Posted on October 16, 2020
Defendant Villa is 28 and his girlfriend (and the mother of his child) is 18."While driving with his girlfriend, Jane Doe, and their infant child, Dagoberto Shoreque Villa, who was heavily intoxicated, began punching Doe and pulling out her hair in a fit of jealousy...

People v. Zorich (Cal. Ct. App. - Oct. 13, 2020)

Posted on October 14, 2020
David Zorich is eligible for potential resentencing if the vehicle he stole in 1997 was worth $525 or less. That vehicle was (accordingly to the police report) a 1979 AMC Concord with 105,352 miles on it and that was in "fair" condition.What do you think someone would have paid in 1997 for a 17-year old AMC Concord with 100,000+ miles on it?Mr...

People v. Barber (Cal. Ct. App. - Oct. 9, 2020)

Posted on October 12, 2020
When I read opinions, I sometime think: "There but for the grace of God go I." Or at least I try to think that. Whether as a victim or perpetrator or judge, I think it's healthy to remember that participants in both the criminal and civil justice system are always people...

Robin v. Crowell (Cal. Ct. App. - Oct. 8, 2020)

Posted on October 08, 2020
I wasn't overly interested in this opinion for the underlying legal doctrine, which involves the relevant limitations period for judicial foreclosures and undisclosed deeds of trust. But I was interested in the identity and roles of at least some of the participants...

In re Butler (Cal. Ct. App. - Oct. 7, 2020)

Posted on October 07, 2020
We rightly get irate at countries in which people are sometimes held without trial for years. That's not right. It's not due process.But check out this case. Not in some totalitarian foreign country. But right here in America. Indeed, in California...

Doe v. Yim (Cal. Ct. App. - Oct. 6, 2020)

Posted on October 06, 2020
The relevant ethical rule says that a lawyer who's likely to be a witness can't represent a client "at trial." But the Court of Appeal holds that, notwithstanding this text, the lawyer can also be disqualified from pretrial proceedings as well; i...

Fipke v. California Horse Racing Board (Cal. Ct. App. - Oct. 5, 2020)

Posted on October 05, 2020
I can't say that I knew much about how jockeys get selected and paid in horses races before today. But as a result of this opinion, I certainly now know a little more than I did an hour ago.The facts of the case are undisputed. It's just a question of what's legally allowed...

People v. Am. Surety Co. (Cal. Ct. App. - Oct. 1, 2020)

Posted on October 02, 2020
Here's some evidence that the law has gotten marginally more rational over the last hundred years.Bail is set for a particular criminal defendant at $220,000, but due to a miscommunication, officers at the jail had it listed as $120,000. So a bail company posts a bail bond for that latter amount, and defendant thereafter failed to show up...

U.S. v. Malik (9th Cir. - July 6, 2020)

Posted on September 30, 2020
This is a slightly older case that I read a little while back, but it came into my head as a result of a particular conversation I had earlier today. The lesson is a simple one, and is this:If you're driving a big rig and smuggling 135 pounds of cocaine and 114 pounds of methamphetamine therein, do yourself a favor: Don't smoke a joint as well...

Butler America LLC v. Aviation Assurance Co. (Cal. Ct. App. - Sept. 29, 2020)

Posted on September 29, 2020
Justice Gilbert starts this opinion by saying: "Alter egos of a judgment debtor appeal an order amending the judgment to add them as judgment debtors. We affirm. A judgment debtor with an empty shell is easy to crack."Which might well be true as a legal matter...

Ford v. Peery (9th Cir. - Sept. 28, 2020)

Posted on September 28, 2020
"During closing argument, at the end of his rebuttal, the prosecutor told the jury that the presumption of innocence no longer applied. He said:'This idea of this presumption of innocence is over. Mr. Ford had a fair trial. We were here for three weeks where ...

Tam v. City of Los Banos (9th Cir. - Sept. 25, 2020)

Posted on September 25, 2020
Chief Judge Thomas and Judge Friedland think that the jury properly found the police officer liable. Judge Bennett disagrees. Here are the facts. See which side you think you'd be on:"At the time of the incident, Tan Lam?then 80 years old?lived with his 42-year-old son, Sonny Lam, at Sonny?s home in Los Banos, California...

Pacific Choice Seafood Co. v. Ross (9th Cir. - Sept. 25, 2020)

Posted on September 25, 2020
Another routine Magnuson-Stevens Fishery Conservation and Management Act case involving a Pacific non-whiting groundfish fishery. You see those every day.The Act sets a quota, and no one can control more than 2.7 percent of that quota...

Torres v. Barr (9th Cir. - Sept. 24, 2020)

Posted on September 24, 2020
This one is not entirely unexpected.A Ninth Circuit panel unanimously decided around a year ago that Catherine Torres (and people like here) were eligible to be deported from the Commonwealth of the Northern Marianas Islands. That wasn't surprising, since there was an on-point Ninth Circuit decision from a couple years back that expressly so held...

Chapin v. State Personnel Board (Cal. Ct. App. - Sept. 23, 2020)

Posted on September 23, 2020
Cheating on a firefighter promotion exam: unusual. (I would hope, anyway).Finding out about this cheating only after the battalion chief was accused of . . . murdering his girlfriend.Hopefully even more unusual.

People v. Redus (Cal. Ct. App. - Sept. 22, 2020)

Posted on September 22, 2020
It's always a no-win situation if you're a justice on the Court of Appeal and you've got to decide a case like this one. It involves an elderly man -- 74 years old -- who's been involuntarily committed to a psychiatric hospital for nearly a half century, since 1975...

Koussaya v. City of Stockton (Cal. Ct. App. - Sept. 21, 2020)

Posted on September 21, 2020
Here's a harrowing tale that only gets worse and worse as the opinion goes on:"Stephanie Koussaya was taken hostage, along with two other women, by three armed bank robbers, Alex Martinez, Jaime Ramos, and Gilbert Renteria, Jr. Used as human shields in order to facilitate the robbers? escape from the bank, the hostages were forced into a Ford Explorer belonging to one of the hostages, Kelly Huber...

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