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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

Duncan v. Ornoski (9th Cir. - June 24, 2008)

Posted on June 24, 2008
It's a death penalty habeas case. Judge Reinhardt writes the opinion.Need I say more? Okay, if you can't figure out what happens, go ahead and read the opinion.But as they say, in death penalty cases, neither snow, nor rain, nor sleet, nor the decisions of the California Supreme Court or district court below ...

California Nat'l Bank v. Woodbridge Plaza LLC (Cal. Ct. App. - June 20, 2008)

Posted on June 24, 2008
Judge Rylaarsdam writes a completely persuasive resolution. I agree with pretty much everything substantive he says.Mind you, the fact-specific analysis therein -- which concerns the meaning of various terms of a particular bank's rental agreement with its landlord -- wouldn't qualify the opinion for publication (in my view, at least)...

In Re Rothwell (Cal. Ct. App. - June 23, 2008)

Posted on June 23, 2008
It's possible to send heroin to a prisoner on a postcard?! Yes, it is.Oh, and if the heroin gets intercepted by an astute guard before it reaches you, you're also not guilty of possession. Maybe something else. But not possession.Imagine the progress that society could achieve if we could somehow harness the creative energy of addicts in search of a fix.

People v. Roberts (Cal. Ct. App. - June 16, 2008)

Posted on June 23, 2008
It's rare to see a 1-1-1 decision in the Court of Appeal. And even rarer for such a split to be unpublished. So even though I don't usually comment on unpublished decisions, this one surely deserves mention.The question revolves pretty much exclusively around what sort of sentence Marcus Lee Roberts should receive...

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U.S. v. Gonzalez (9th Cir. - June 19, 2008)

Posted on June 23, 2008
Sure, defendants routinely claim that police officers steal money or drugs from them after they bust them. But it never really happens, right? I mean, come on. It's just absurd to think that a police officer would do so.Unless, of course, it's caught on videotape.

Roberts v. Assurance Co. (Cal. Ct. App. - June 20, 2008)

Posted on June 20, 2008
"When you put my name in print, I don't care what you say. Just spell it correctly."A matter of interest to Esther Holm -- not Hom -- at Lewis Brisbois. And Justice Rylaarsdam (belatedly) obliges.

Leppind v. Mukasey (9th Cir. - June 20, 2008)

Posted on June 20, 2008
Sometimes you author a dissent for the ages. Sometimes you author a dissent to persuade other circuits, or even the Supreme Court. And sometimes you write a dissent to "persuade" lower courts.But usually you write a dissent in response to something contrary that was written by the majority...

Barona Band v. Yee (9th Cir. - June 18, 2008)

Posted on June 19, 2008
Kudos to Judge Wardlaw. For writing an opinion that not only makes sense on the merits (though I admit that I totally see the other side as well), but also contains a funny line with the perfect level of subtlety. Not too much, but definitely not too little...

People v. Wilkinson (Cal. Ct. App. - June 18, 2008)

Posted on June 18, 2008
Obviously, you shouldn't use your roommate's webcam to secretly record her (and your third roommate) having sex. Not right. Morally or otherwise. Like you can't get better porn on the regular internet anyway? (And, no, I will not provide a hyperlink, thank you very much...

Long v. Century Ins. Co. (Cal. Ct. App. - June 17, 2008)

Posted on June 17, 2008
It's rarely a good sign when the Court of Appeal quotes your brief in its opinion. Because usually that means that they're just teeing your argument up to take a huge whack at it.As here.Which is not fantastic news for Incline Village attorney (my wife says: "Nice life!") Jay B...

Gribben v. UPS (9th Cir. - June 16, 2008)

Posted on June 16, 2008
Maybe it's just because I've been on the East Coast -- sweltering in heat and humidity -- for the past week. It makes certainly makes me sympathetic. But regardless of the reason, even on the merits, I was interested to learn from this opinion by Judge Thompson that the ADA can require an employer to provide air conditioning in the vehicle that its employee drives...

Cadle Company II v. Fiscus (Cal. Ct. App. - June 12, 2008)

Posted on June 13, 2008
It's a hot, steamy night in North Carolina. (Yeah, I know, sounds like the opening sentence of a pulp romance novel.) And I had to walk a huge distance until I could find a house that allowed me to pimp their wireless access. But neither rain nor sleet, as they say...

People v. Ramos (Cal. Ct. App. - June 9, 2008)

Posted on June 12, 2008
I'm in North Carolina today. But the California Court of Appeal has a simple message that's universal:Do blow, kill your mother.Presumably not invariably.

Derek Andrew, Inc. v. Poof Apparel Corp. (9th Cir. - June 11, 2008)

Posted on June 11, 2008
Plaintiff is an apparel company named Derek Andrew, Inc. that sells a high-end (read: expensive) clothing line called "Twisted Heart" at Nordstrom, Saks Fifth Avenue, and Neiman Marcus. Defendant, by contrast, is a competing apparel company named (of all things) "Poof Apparel" that sells low-end (read: cheap) clothing with a label nearly identical to the "Twisted Heart" label at places like T...

In Re Attorney Discipline (9th Cir. - June 10, 2008)

Posted on June 11, 2008
Alex: What, I'm a huge slouch?!Just kidding. Rory's an outstanding choice.POSTSCRIPT: Sorry to read about the huge blowup today on that other thing, A. Not great timing.

People v. Manchel (Cal. Ct. App. - June 10, 2008)

Posted on June 10, 2008
I thought that Justice Zelon penned an extremely well-written opinion in this case. It flows, it's breezy, and it's persuasive. I wish that law review articles -- or at least the ones I write -- could be similarly smooth.On the merits, she does a great job distinguishing the principal authority on which the defendant relies...

Liberty Mutual Fire Ins. Co. v. LoL Administrators, Inc. (Cal. Ct. App. - June 10, 2008)

Posted on June 10, 2008
Form interrogatories. Sure, it's fun to respond with meaningless answers. But do it too much and you may face terminating sanctions. And the Court of Appeal will affirm.

Gueyffier v. Ann Summers, Ltd. (Cal. Supreme Ct. - June 9, 2008)

Posted on June 09, 2008
A British retailer of lingerie and sex toys. A French citizen who opens a franchise in the Beverly Center shopping mall. Thrown tomatoes. Arbitration. The California Supreme Court. "What Lies Beneath".It's a titillating drama that, sadly, isn't at all exciting as a judicial opinion...

ISKC v. City of Los Angeles (9th Cir. - June 9, 2008)

Posted on June 09, 2008
The Ninth Circuit wants to know if LAX is a public forum under the California Constitution. So asks the California Supreme Court to let it know. Which makes sense.I mention the case primarily becuase it involves the Krishnas soliciting funds at LAX...

Franco v. Dow Chemical Co. (9th Cir. - June 9, 2008)

Posted on June 09, 2008
They take attorney discipline very seriously on the Ninth Circuit. Especially if you're dealing with Chief Judge Kozinski and Judges Reinhardt, Berzon and Tashima.Don't believe me? Take a look at this. As well as (if you have time) this.The attorneys named in the caption, by the way, are no slouches...

TJX Companies v. Superior Court (Cal. Ct. App. - June 6, 2008)

Posted on June 06, 2008
Oops. There are a couple of very minor problems. The most central of which is that he's actually a she.And, at least to my knowledge, always has been.Amended accordingly.

People v. Carrasco (Cal. Ct. App. - June 6, 2008)

Posted on June 06, 2008
Two things.First, doesn't it seem strange for someone to walk into a sheriff's station and ask if anyone has change for a dollar? Aren't stores and such a more likely candidate for this type of function? And isn't it even stranger to then follow up the resulting silence by singling out a particular deputy sheriff and asking "Do you have change, bitch?" Not really a smart thing to say...

People v. Mauch (Cal. Ct. App. - June 3, 2008)

Posted on June 05, 2008
I can reduce the holding of this opinion to a single sentence. Albeit one that only criminal lawyers in California -- or those cognizant of this field -- would find interesting, or (potentially) even understand:If it ain't a wobbler, or at least a stealth wobbler, you can't knock it down to a misdemeanor...

People v. Laborde (Cal. Ct. App. - June 4, 2008)

Posted on June 04, 2008
Don't take drugs on a cruise. �Especially if you've got a criminal record. �Because, if the feel like it, it's a routine border search when you return. �And the police just so happen to target people with criminal -- especially drug -- records for "random" suspicionless searches of their cabin...

U.S. v. Giberson (9th Cir. - May 30, 2008)

Posted on June 04, 2008
I agree with Judge Wallace.They validly stopped you because your plates expired. At which point they saw your false identification, which properly subjected you to arrest. At which point they validly searched you incident to the arrest and discovered evidence that you were evading your child support allegations...

Ferguson v. Coregis Ins. Co. (9th Cir. - June 3, 2008)

Posted on June 03, 2008
It's fun to read an opinion in which a particular sentence or analogy appears in its midst totally from left field. Like here.The case involves insurance coverage, and the question revolves around the appropriate coverage amount. The policyholder says it's $2,000,000, the amount listed on the declarations page...

Chen v. Mukaskey (9th Cir. - June 3, 2008)

Posted on June 03, 2008
Sure, the panel remands this case back to the BIA to make some findings. But the lesson is clear:Don't lie on your asylum application. And, if you do, definitely don't admit to lying. Continuing to lie is a much, much better strategy.

People v. Masotti (Cal. Ct. App. - May 28, 2008)

Posted on June 02, 2008
Not much from the Ninth Circuit and California Court of Appeal today. Or at least not much that I'm desperately itching to talk about. A couple of opinions by both; we'll see what the late afternoon brings (if anything) from the latter.By contrast, here's an opinion from a couple of days ago about which I definitely had a reaction...

People v. Jackson (Cal. Ct. App. - May 28, 2008)

Posted on June 02, 2008
You might well be troubled by cold-hit DNA cases, as well as peremptory challenges suspiciously directed towards a particular gender or racial group. I know I am.Nonetheless, I think that Justice Cantil-Sakauye not only is entirely correct in this one, and that defendant's conviction was rightly upheld, but that the underlying case in the trial court is a good example of what should happen in these types of cases...

U.S. v. Hinkson (9th Cir. - May 30, 2008)

Posted on May 30, 2008
Whoa, Nelly.(1) It's the exceptional Ninth Circuit case that runs, like this one, over 90 single-spaced pages. It's even rarer for the author of the majority opinion to apologize (!) for such prolixity. See Page 6142 ("We apologize to the reader in advance for the length of the discussion...

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