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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

Mepco Svcs. v. Saddleback Valley USD (Cal. Ct. App. - Nov. 2, 2010)

Posted on November 02, 2010
Here's what I like about this opinion:(1) Its breadth. It's comprehensive. It takes the issues seriously. It engages them. I like it. Sure, that makes the opinion long. But it also makes clear to the parties and the public how and why the Court decided as it did...

U.S. v. Leal-Felix (9th Cir. - Nov. 1, 2010)

Posted on November 02, 2010
As my father -- whose family was from Iowa -- used to say: "They grow 'em big in Iowa."Judge Goodwin writes an eight-paragraph opinion in a sentencing guidelines case. To which Judge Bennett, sitting by designation from the District of Iowa, responds by authoring a twenty-page, single-spaced dissent...

Smith v. Mitchell (9th Cir. - Oct. 29, 2010)

Posted on October 29, 2010
The Ninth Circuit is confident. The Supreme Court is clearly skeptical.Shirley Smith gets convicted in California for assault on a child resulting in death. The California appellate courts were fine with the conviction, as was the federal district court when Smith filed a habeas petition...

Valadez-Munoz v. Holder (9th Cir. - Oct. 28, 2010)

Posted on October 28, 2010
Continuing the theme from yesterday, this morning the Ninth Circuit brings us another opinion with a "special" word. Though this time, it's not a creatively-spelled obscenity.It's a run-of-the-mill immigration case, holding that a person who tried to cross the border illegally by pretending to be a U...

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Siskiyou County v. State Personnel Board (Cal. Ct. App. - Oct. 7, 2010)

Posted on October 27, 2010
Rarely do you see a word used for the first time ever in the Court of Appeal. Still rarer do you see a word used for the first time ever in any published or unpublished, state or federal appellate opinion.But it happens here.The Word: "Phuck...

Landrigan v. Brewer (9th Cir. - Oct. 26, 2010)

Posted on October 26, 2010
The Ninth Circuit publishes ten orders and opinions today, and this one's among both the shortest and most interesting of the bunch.The Ninth Circuit affirms a TRO that stays the execution of Arizona inmate Jeffrey Landrigan. Now, it's the Ninth Circuit, so that's not totally unprecedented...

Kovacevic v. Avalon at Eagles' Crossing HOA (Cal. Ct. App. - Oct. 26, 2010)

Posted on October 26, 2010
I'll just add one thing to Justice Aaron's opinion in this case, which is both short (a dozen double-spaced pages) and spot on.When a vexatious litigant files a lawsuit pro per in violation of a prefiling order that expressly precludes her from doing so without permission of the chief judge, that person has committed a contempt of court...

People v. Engram (Cal. Supreme Ct. - Oct. 25, 2010)

Posted on October 25, 2010
The California Supreme Court finally wades into the Riverside County mess. And hold that, yep, all the lower courts were correct. You don't have to pull judges out of (inter alia) Probate Court in order to solve the huge backlog of criminal cases...

In Re Jose C. (Cal. Ct. App. - Sept. 2, 2010)

Posted on October 22, 2010
It's a dependency case. So you know the facts are going to be depressing.Here's a case that's not nearly as bad as many of them. The father has no contact with the child, and his whereabouts are unknown. But there are strong bonds between the mother and the kid...

1-800-GOT-JUNK? v. Superior Court (Cal. Ct. App. - Oct. 21, 2010)

Posted on October 21, 2010
Okay, I admit it. I was going to post something about this case even before I read it. Because I loved the caption. 1-800-GOT-JUNK? v. Superior Court. Love it.Plus, in truth, I basically have to admit that fact. I have nothing at all to say about the doctrine applied by the Court of Appeal, and I also agree with its result...

Smith v. Almada (9th Cir. - Oct. 19, 2010)

Posted on October 20, 2010
A dissent by Judge Dorothy Nelson is worth at least mentioning. Particularly since she's not known as The Great Dissenter. Especially in opinions joined by, say, Judge Gould.Ergo my mention of this case.I'd discuss the opinion anyway. If only to point out that in the unlikely event that you want to commit arson, the opinion gives two pieces of implicit advice...

Earp v. Cullen (9th Cir. - Oct. 19, 2010)

Posted on October 19, 2010
Sometimes you can tell who they're talking about even before they tell you.I'm reading along in this opinion about habeas hearings concerning alleged prosecutorial conduct, and the Ninth Circuit says, yeah, we need a new hearing because the district court erred...

U.S. v. Lozano (9th Cir. - Oct. 18, 2010)

Posted on October 18, 2010
Let's say you're on probation, and officers have previously found marijuana at your residence. Let's further say that you're thinking about having a friend send you a huge package of weed from California in the mail.Let me give you a piece of advice in such settings...

Norris v. Morgan (9th Cir. - Sept. 23, 2010)

Posted on October 14, 2010
You've previously been convicted of molesting a little girl in a manner described as "child rape." Now, after getting out of prison, you had some beers, went to a McDonald's, deliberately hung around the play structure while little kids played, and then grabbed a little girl's crotch and ran away when her father confronted you about it...

Margarito v. State Athletic Commission (Cal. Ct. App. - Oct. 14, 2010)

Posted on October 14, 2010
I'm not a big boxing fan. So maybe everyone "in the know" already knows about this.But apparently, before the Antonio Margarito/Shane Mosley welterweight title fight in 2009, officials caught Margarito with a "plaster-like" substance strapped to both of his fists...

In Re Ethan C. (Cal. Ct. App. - Sept. 24, 2010)

Posted on October 13, 2010
Your 18-month old daughter looks like she might have injured her arm. So you decide to take her to the hospital to get her checked out. Someone else is currently using your car, which is the one with the child seat in it. You try to find another child seat but can't...

Leonard Carder LLP v. Patten, Faith & Sandford (Cal. Ct. App. - Oct. 12, 2010)

Posted on October 12, 2010
It's not enough that you think up a really good class action and get awarded $12 million-plus in costs and attorney's fees. Then you have to whack it up with your co-counsel. And fights over $12 million can get relatively ugly. Just ask Leonard Carder and Patten, Faith & Sandford...

Western Watersheds Project v. Interior Board (9th Cir. - Oct. 12, 2010)

Posted on October 12, 2010
I've got nothing of substance to say about this Ninth Circuit opinion. But I noticed that it was from the District of Idaho -- and, in particular, from Pocatello.You don't see many cases from Pocatello in the Ninth Circuit. It's got 50,000 souls, and even though it may be the largest city in Eastern Idaho, that's not saying much...

In Re J.G. (Cal. Ct. App. - Oct. 6, 2010)

Posted on October 11, 2010
Two plainclothes police officers are investigating a gang-related crime in Anaheim on turf that they know belongs to the ATC gang when they see four guys running down the street. One of these young men -- J.G. -- is holding a brick, and several others are holding other throwable items as well (e...

People v. Jason K. (Cal. Ct. App. - Oct. 7, 2010)

Posted on October 08, 2010
I understand that people have a Second Amendment right to bear firearms. But even if Jason is allegedly "better" now, I think it's eminently reasonable that his guns be taken away from him for a while. Or, more accurately, sent to his parents for a while...

Holmes v. Summer (Cal. Ct. App. - Oct. 6, 2010)

Posted on October 08, 2010
Earlier this year, I gave a speech to the Federalist Society at the Ronald Reagan Library in which I argued that the prevailing economic climate does affect -- in part -- some holdings of the judiciary, and that this impact is both understandable and not-entirely-illegitimate...

In Re Powell (Cal. Ct. App. - Oct. 7, 2010)

Posted on October 07, 2010
Continuing our theme from a couple days ago, here's another case from earlier today where the Board of Parole Hearings denies parole to someone convicted of second degree murder. Sentenced to 16 years to life, Powell has now been in prison for 27 years...

Huitt v. Southern California Gas Co. (Cal. Ct. App. - Oct. 7, 2010)

Posted on October 07, 2010
Paragraph-by-paragraph, with my contemporary reactions interlineated therein:"Michael Sean Huitt and Matt Nino (hereafter collectively plaintiffs) were injured while attempting to light a water heater at a construction site (hereafter the school site or school) owned by the Porterville Unified School District (hereafter the school district)...

Professional Engineers v. Schwarzennegger (Cal. Supreme Ct. - Oct. 4, 2010)

Posted on October 06, 2010
The furloughs are okay.The Governator wins this one, as well as a different case (also decided the same day) about his use of the line-item veto to whack some other appropriations.Two for Ahnold.

Ramirez v. Wong (Cal. Ct. App. - Oct. 6, 2010)

Posted on October 06, 2010
Sneaking into your apartment and secretly sniffing your underwear doesn't count as sexual harassment or a threat of violence on account of your sex. So holds the Court of Appeal.Though hopefully we can all agree it's weird.

In Re Kler (Cal. Ct. App. - Oct. 5, 2010)

Posted on October 05, 2010
Here's the way parole works in California.Kuldip Kler is found guilty of second-degree murder in 1989 and sentenced to 15 years to life. He commits two minor disciplinary offenses during his early years in prison but is otherwise a model prisoner...

Mattos v. Agarano (9th Cir. - Oct. 4, 2010)

Posted on October 04, 2010
It's a straightforward "Why'd you tase me, bro?" case that the Ninth Circuit resolved back in January. It's a per curiam opinion holding that the officers had qualified immunity. No dissent. Fact-specific. No way it's getting taken en banc, right?Wrong...

People v. Torres (Cal. Ct. App. - Sept. 21, 2010)

Posted on October 01, 2010
Good ol' pretextual stops.Such fun.

In Re Marriage of Tharp (Cal. Ct. App. - Oct. 1, 2010)

Posted on October 01, 2010
Thinking about doing divorce work? It can surely have its benefits. But read this one to recognize how bad things can become.No one comes out looking clean in this one. At least to me. Not the husband. Not the wife. Not the lawyers...

Valdevia v. Schwarzenegger (9th Cir. - Sept. 28, 2010)

Posted on September 30, 2010
Judge Bea writes a darn good certiorari petition here. In his dissent (joined by Judges O'Scannlain, Tallman, Callahan, Ikuta and Randy Smith) from the denial of a petition for rehearing en banc.There are some cases in which the original opinion stands for itself, and fully responds to a later dissent from denial of rehearing en banc...

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