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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

Pilkington v. Cardinal Health, Inc. (9th Cir. - Feb. 19, 2008)

Posted on February 19, 2008
Sometimes timing is everything.Defendants in the class action here file a motion for summary judgment in November. The parties have an unsuccessful mediation on December 12th, but continue to talk. The motion for summary judgment is heard and taken under submission on December 16th...

U.S. v. Hir (9th Cir. - Feb. 15, 2008)

Posted on February 18, 2008
It's allegedly a holiday today. I say "allegedly" because even the University of San Diego (and the law school) are open, which means that it must not be a very well-observed holiday. Because, trust me, if there's one thing that law schools -- and law students -- understand and appreciate it's three-day weekends...

Anderson v. Terhune (9th Cir. - Feb. 15, 2008)

Posted on February 15, 2008
Judge McKeown writes an excellent opinion -- especially Part I -- in this one. It's very well-written. It's extremely reasonable. It sounds good.Not that the contrary opinions are totally absurd. It's a 10-2-1-2 en banc split, which is not something you see every day...

Perez v. Mukasey (9th Cir. - Feb. 14, 2008)

Posted on February 14, 2008
One Ninth Circuit judge says it's okay to be two hours late to your deportation hearing -- that as long as the immigration judge is still on the bench once you show up, you can't be removed in absentia. Another Ninth Circuit judge, writing in dissent, says that's not okay at all, and that you can be deported as a result...

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Park v. Mukasey (9th Cir. - Feb. 13, 2008)

Posted on February 13, 2008
Two days. Two opinions in which the Ninth Circuit affirms by adopting the decision of the district court.What? No one does their own work anymore? :-)

People v. Bonnetta (Cal. Ct. App. - Nov. 15, 2007)

Posted on February 12, 2008
A lazy day for the Ninth Circuit and the California Court of Appeal today. Nothing at all from the latter -- it's Lincoln's Birthday, after all. And, from the Ninth Circuit, only this single sentence, in which the panel affirms for the reasons already expressed in the district court's published opinion...

In Re Charles R. Martin (Oct. 24, 1941 - Feb. 11, 2008)

Posted on February 11, 2008
Pardon the personal aside. Just wanted to give a brief mention to my father, who died this morning and who's in my thoughts.Dad was a full-time pharmacist (a '63 Drake graduate) who decided that he wanted more of a challenge in his work, and so he enrolled in the evening division of Georgetown Law a month after the birth of his first child -- me -- in 1966...

Planned Parenthood v. American Coalition (9th Cir. - Feb. 11, 2008)

Posted on February 11, 2008
Here's an entirely just and equitable opinion by Judge Fisher. As well as one that should command the attention of any civil appellate litigator in the Ninth Circuit.The issue surrounds post-judgment interest after appellate damage remands. Something that, as here, can add up to a fairly substantial chunk of change...

Certain Underwriters at Lloyds v. Inlet Fisheries, Inc. (9th Cir. - Feb. 11, 2008)

Posted on February 11, 2008
"Please, oh please," I hear you say. "I desperately need to read a scholarly, erudite opinion about the obscure legal doctrine of uberrimae fidei as applied to meritime insurance policies."In the extremely unlikely event I heard you right, you're in luck...

People v. Curry (Cal. Ct. App. - Jan. 7, 2008)

Posted on February 08, 2008
Let me see if I got this one right. Your girlfriend's pregnant. You want her to have an abortion, but she does not want one. She advises you to just pay child support if you don't want the child. You, by the way, are far from a rich person -- and basically seem like a street thug -- so presumably don't have that much money to pay in child support anyway...

People v. Superior Court (Cal. Ct. App. - Feb. 4, 2008)

Posted on February 07, 2008
I disagree with this one.It's a total shortie -- seven double-spaced pages. And very easy to understand.Defendant causes a fire and the State sues (as it can) to recover the costs of fighting the fire. Defendant admits that it caused the fire but says -- quite plausibly, I might add -- that the fire would have been out in the first two days but for the State's incompetence in fighting the fire; in particular, that the State had basically put the thing out after it had burned out 1200 acres, but due to the State's failure to douse the flames completely, the fire restarted and burned for 10 more days and destroyed 64,000 acres...

Krinsky v. Doe 6 (Cal. Ct. App. - Feb. 6, 2008)

Posted on February 06, 2008
I'm sure this opinion will get a fair amount of discussion in the blogosphere -- as well as a little in the mainstream legal press -- since it concerns the ability to subpoena the identity of anonymous posters. Which is something about which commentators in the present medium tend to care...

Gonzalez v. Knowles (9th Cir. - Feb. 6, 2008)

Posted on February 06, 2008
A tale of two lawyers.With ineffective assistance claims, you sometimes see lawyers slammed -- occasionally by name. But rarely do you see one attorney slammed and another attorney praised.But that's the case here.The lawyer slammed -- at least by Judge Hawkins -- is Armando Garcia...

John v. El Monte (9th Cir. - Feb. 5, 2008)

Posted on February 05, 2008
It's pretty hard to confuse the Ninth Circuit and the Fourth Circuit. The former's on the West Coast; the latter's on the East Coast. The former's fairly leftie; the latter's very rightie. They're about as different in size, geography, and composition as one can get...

In Re Angel L. (Cal. Ct. App. - Feb. 5, 2008)

Posted on February 05, 2008
Here's an uplifting half-dozen pages for your Tuesday. Regarding the welfare of children who definitely were given the best possible chance to succeed.Not.

U.S. v. Jennings (9th Cir. - Feb. 4, 2008)

Posted on February 04, 2008
Assume you're a convicted felon, and hence precluded from owning a firearm. Which of the following would be a bad idea:(1) Taking a picture of yourself with a firearm.(2) Leave the picture in an impounded vehicle for the police to find.(3) When the police pick you up, initiate a conversation, sua sponte, in which you say "If this is about the missing serial number, I didn't know it was missing...

People v. Howard (Cal. Supreme Ct. - Feb. 4, 2008)

Posted on February 04, 2008
I think that you can figure out how this case comes out based solely upon two facts:(1) the fact that it's in front of the California Supreme Court; and(2) the fact that the first sentence of the opinion begins: "Defendant Alphonso Howard was sentenced to death after a jury convicted him of first degree murder, rape, and a forcible lewd act upon a child under the age of 14...

Sumpter v. Matteson (Cal. Ct. App. - Jan. 10, 2008)

Posted on February 01, 2008
On the merits, I think that this opinion is exactly right. But it's about a simple car accident, and there's not much about the application of the law that merits extensive discussion.I nonetheless mention it because I couldn't help but smile at one of the lines in the opinion...

People v. Campos (Cal. Ct. App. - Dec. 7, 2007)

Posted on February 01, 2008
"Did I just accidentally call the Supreme Court the Court of Appeal?! Oops! Gonna correct that one pretty darn fast!"Or, as the Court of Appeal says here, "On page 20, line 1, the first full sentence, the words 'the Court of Appeal' are changed to 'the Supreme Court...

People v. Batman (Cal. Ct. App. - Jan. 30, 2008)

Posted on January 31, 2008
I'm Batman. No, not that one. Donald James Batman.So you can't collect $144 from me.

People v. Seminoff (Cal. Ct. App. - Jan. 29, 2008)

Posted on January 30, 2008
There are various parts of this opinion about which I might disagree. For example, it seems to me that the prosecutor was deliberately asking tangential questions to the witness purely in order to get her to invoke her Fifth Amendment rights (rather than risk prosecution) and hence get her testimony on the suppression motion stricken...

Costco v. Hoen (9th Cir. - Jan. 29, 2008)

Posted on January 29, 2008
Prohibition. The Sherman Act. The 21st Amendment. Costco's mission to provide cheap intoxication to the masses.Important interests, all. That directly collide in this case.Costco challenged a variety of restrictions in Washington that drove up the price of alcohol -- e...

People v. Morton (Cal. Ct. App. - Jan. 22, 2008)

Posted on January 28, 2008
Sometimes you don't know whether to laugh or cry:"The events giving rise to the crimes charged against Morton occurred on November 7, 2004. At that time, Morton resided with his girlfriend and alleged victim, Theresa Windham. According to the prosecution?s evidence, Morton was sitting in the living room watching television, while Windham was cooking in the kitchen, topless...

Verga v. WCAB (Cal. Ct. App. - Jan. 25, 2008)

Posted on January 25, 2008
I'm sorry. Did I say "Yes"? I meant, of course, "No."Or, as the Court of Appeal says in this modification of the opinion: "On page 11, last paragraph, first sentence, insert the word 'not.'"

U.S. v. Cherer (9th Cir. - Jan. 25, 2008)

Posted on January 25, 2008
I've said it before. It remains true. I'll say it again:When you're a 35 year old man, and engaging in sex talk with an alleged 14-year old girl, that's not actually a 14-year old girl on the other computer. It's the FBI.Paris Cherer found that out the hard way...

CKE Restaurants v. Moore (Cal. Ct. App. - Jan. 24, 2008)

Posted on January 24, 2008
I wouldn't have facially thought that filing a declaratory relief action once someone tells you that they're probably going to sue you (by filing a Proposition 65 notice) would be subject to an anti-SLAPP motion, and hence suddenly raise the prospect of attorney's fees...

Ross v. Ragingwire Telecommunications, Inc. (Cal. Supreme Ct. - Jan. 24, 2008)

Posted on January 24, 2008
If you've got a prescription, and it's medically necessary, California law let's you take a toke. But that doesn't mean your employer can't fire you for it. Even if it happens at home off-duty and doesn't affect your job.So holds the California Supreme Court...

Bertrand v. Santa Clara County (9th Cir. - Jan. 24, 2008)

Posted on January 24, 2008
That was fast.The Ninth Circuit back in June decided an immunity case. None of the members of the panel liked it, but they were bound by circuit precedent -- a published opinion authored by Judge Paez back in November 2003 -- to find that the social worker had immunity...

People v. Williams (Cal. Ct. App. - Jan. 22, 2008)

Posted on January 23, 2008
This opinion is fairly short (seven double-spaced pages). And I've got a very brief -- and idiosyncratic, I admit -- question about it.Does it speak ill of me -- and it may well -- that I really want to know how old the defendant is? I mean, if he's a 25- or 35-year old guy, this whole stuff seems so weird...

Plumlee v. Masto (9th Cir. - Jan. 17, 2008)

Posted on January 23, 2008
Sometimes it's lonely being the only strong leftie drawn for an en banc panel. So you get outvoted. Big time. As in double digits to your one.Such is the life of Judge Pregerson. Who was drawn for this case, which took en banc the previous opinion in a criminal case authored by Judge Betty Fletcher (and joined by Judge Thomas)...

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