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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

People v. Vance (Cal. Ct. App. - Sept. 29, 2010)

Posted on September 30, 2010
Yep. It couldn't be more crystal clear that a prosecutor can't tell the jury that it should put itself in the victim's shoes. That's why they call it the "Golden Rule."Nor could it be more crystal clear that the prosecutor violated that rule here...

Malatka v. Helm (Cal. Ct. App. - Sept. 29, 2010)

Posted on September 29, 2010
There are several downsides to the California judiciary's practice of writing opinions prior to oral argument. Least among them -- but still worth mentioning -- is the fact that justices are, not surprisingly, often reluctant to dismiss an appeal as moot (even if it's precisely that) once an entire opinion has already been written...

In Re E.O. (Cal. Ct. App. - Sept. 29, 2010)

Posted on September 29, 2010
I want to say two things about this opinion.First, I understand that we don't want a high school student bringing a folding knife to school. But why are we requiring as a condition of probation that he not go within 25 feet of a courthouse unless he's a party or witness? Seems to me like we want people to learn more about the justice system, not less...

Carter v. Cohen (Cal. Ct. App. - Sept. 28, 2010)

Posted on September 28, 2010
Jerry Cohen's a young attorney in the Valley. (That's the San Fernando Valley for those not alive in the 80s or participants in the porn industry.) Went to Cal State Northridge and then Loyola Law School. Admitted in 1997. Doing a little of this and a little of that...

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Polimaster Ltd. v. RAE Systems (9th Cir. - Sept. 28, 2010)

Posted on September 28, 2010
Opinions sometimes are relatively value-neutral. That is, sometimes, politics and norms and the like only slightly play into the resolution of the case.The classic example is when there's on-point (or sharply analogous) precedent. But there are also cases in which we're just trying to get the right result on shared norms...

Towery v. Schriro (9th Cir. - Sept. 22, 2010)

Posted on September 27, 2010
Let's say you want to do a drug deal. Or to kidnap and murder someone. Or perhaps all three. Where do you meet?That's right. Denny's.It seems to be the location of choice for your undesirable elements. Which wouldn't surprise you if you've ever been to one, as my family and I have on multiple occasions...

Ward v. Ryan (9th Cir. - Sept. 27, 2010)

Posted on September 27, 2010
Imagine that the government passed a statute that says that the first $50 in wages that you earn gets placed in a special account that you can't access until either (1) you become a member of Congress, or (2) you die, at which point the $50 goes to your heirs or for your burial expenses...

Uzyel v. Kadisha (Cal. Ct. App. - Sept. 22, 2010)

Posted on September 24, 2010
You can make a lot of money if you're a trustee and steal money from someone else's trust. Particularly if it's the 80s and 90s and you invest the money in Qualcomm.But you can also get hit hard in subsequent litigation. Because your breach of fiduciary duty is, well, extreme...

People v. Hoye (App. Div. - Sept. 22, 2010)

Posted on September 24, 2010
What does "approach" mean?A municipal statute allows peaceful picketing at an abortion clinic -- which is protected First Amendment speech in any event -- but doesn't allow a person to "knowingly approach" within eight feet a potential clinic client without consent and with the purpose of harassing, interfering, or counseling such person...

City of Los Angeles v. Tesoro Refining & Mktg. Co. (Cal. Ct. App. - Sept. 22, 2010)

Posted on September 23, 2010
Tesoro owns that big refinery that's near Carson. You've seen it. Huge.Apparently, the refinery straddles the border between Los Angeles and Carson. Which I'm sure is a minor jurisdictional hassle at times.But I didn't realize it'd be a big hassle...

Chubb Insurance v. UPS Supply Chain (9th Cir. - Sept. 22, 2010)

Posted on September 23, 2010
Every half-decade or so, the Ninth Circuit expressly invites amicus briefs in a particular case. Back in 2007, I noted one such order and thought it'd be a potentially interesting topic (about evidence) on which energetic lawyers or law students might want to opine...

Flores v. Enterprise Rent-A-Car (Cal. Ct. App. - Sept. 22, 2010)

Posted on September 22, 2010
Rental car companies can't rent to unlicensed drivers, and when they do, they've breached a duty and you can sue them. But they're free to rent to drivers who have had multiple DUI convictions and had their license suspended in the past 48 months.They don't have to check...

People v. Fenderson (Cal. Ct. App. - Sept. 17, 2010)

Posted on September 21, 2010
"Katherine Majerus died on January 22, 2006, at the age of 96. Fenderson had served as Majerus?s caregiver. Deirdre Kruse is an elder law attorney, with a practice in Santa Rosa. Kruse knew Majerus for approximately 23 years. Kruse met several of Majerus?s care providers, one of whom was Fenderson...

Anthony v. Superior Court (Cal. Ct. App. - Sept. 20, 2010)

Posted on September 20, 2010
I knew that there was not statute of limitations for murder. But I didn't know that, in California, there's no statute of limitations for attempted murder either. At least if the attempted murder is premeditated (second-degree) or worse, anyway.Not something that's going to really affect my life on a day-to-day basis, but still good to know.

United States v. Bohn (9th Cir. - Sept. 17, 2010)

Posted on September 17, 2010
Exciting! A case involving the Property Clause. Which is hardly the most well-known, or most-often litigated, part of the Constitution.To prove it: Do you know what the Property Clause is? See. Told ya.Sure, the Clause makes sense. Which is perhaps why it's not often litigated...

Lopez v. Candaele (9th Cir. - Sept. 17, 2010)

Posted on September 17, 2010
It's a rare First Amendment case in which the plaintiff has been actually injured -- as I believe the plaintiff was here -- and yet does not have standing. Here's one of them.I definitely agree with Judge Ikuta on one thing. This standing issue is close...

Gabriel v. Wells Fargo (Cal. Ct. App. - Sept. 15, 2010)

Posted on September 16, 2010
Here's the litigation version of "Where's Waldo?" Which, in this context, is: "Where's My Million-Dollar Certificate of Deposit?"To which the answer, according to the Court of Appeal, is: "We don't know, but you don't know either, so we're dismissing your lawsuit...

People v. Butler (Cal. Ct. App. - Aug. 24, 2010)

Posted on September 15, 2010
Stephon Butler was convicted of involuntary manslaughter -- a conviction affirmed by the Court of Appeal -- when he participated in a group that took one of their friends and "hit [him] repeatedly, tied [him] up, and silenced [him] with a sock placed in his mouth...

U.S. v. Waters (9th Cir. - Sept. 15, 2010)

Posted on September 15, 2010
I like this opinion by Judge Tashima. It's a classic example of an opinion that uses judgment, and identifies (in my mind) the essential nature of that quality.There are areas in which I'm less persuaded than Judge Tashima is that the defendant has a good point...

U.S. v. Pool (9th Cir. - Sept. 14, 2010)

Posted on September 14, 2010
Does taking DNA from an individual arrested for -- but not convicted of -- a crime, after a judicial finding of probable cause, as a condition of bail violate the Constitution?The Ninth Circuit says "No."Judge Callahan authors the majority opinion. Judge Lucero, sitting by designation from the Tenth Circuit, concurs and writes a separate opinion...

U.S. v. Terrell (9th Cir. - Sept. 13, 2010)

Posted on September 13, 2010
Judges Kozinski, Pregerson, Reinhardt and Milan Smith. They're definitely very different. But they also have some similarities.Perhaps sometime in the past these four -- but only these four -- have signed onto something. If so, I've never seen it.But it happens this morning...

Khatib v. County of Orange (9th Cir. - Sept. 13, 2010)

Posted on September 13, 2010
The Ninth Circuit held last year that a holding cell at the massive Orange County facility was not an "institution" governed by the federal Religious Land Use and Institutionalized Persons Act, and it was accordingly not a potential violation of that Act to force a Muslim woman to remove her hijab (headscarf)...

In Re V.V. (Cal. Ct. App. - Sept. 8, 2010)

Posted on September 10, 2010
V.V. is five years old. Her mother can't stop smoking methamphetamine, so we're going to assess whether to terminate parental rights and put V.V. up for adoption. V.V. has some interactions with the family who wants to adopt her, and V.V. was asked about the family and potential adoption:"[V...

Anderson v. City of Hermosa Beach (9th Cir. - Sept. 9, 2010)

Posted on September 09, 2010
You've got a First Amendment right to go to a tattoo parlor in the Ninth Circuit.On the merits, this isn't that surprising. Tattoos are clearly expressive and protected by the First Amendment. Producing art on a canvas is protected speech, and that analysis doesn't change much merely because the canvas is your body...

Vukmirovic v. Holder (9th Cir. - Sept. 8, 2010)

Posted on September 08, 2010
There's the soft touch, and then there's a hard touch. Rarely does one combine the two. Rarer still is a decision to employ both of these alternative approaches in adjoining sentences.But Judge Rawlinson's dissent gives it a go.The first sentence is a classic softie...

Mohamed v. Jeppesen Dataplan (9th Cir. - Sept. 8, 2010)

Posted on September 08, 2010
In keeping with my traditional practice, I won't say much about this case. Because as a high-profile case, it will get plenty of commentary elsewhere.The Ninth Circuit, in a close 6-5 en banc opinion, employs the state secrets doctrine to dismiss at the pleading stage a lawsuit that alleges that private contractors knowingly participated in an illegal "extraordinary rendition" program run by the CIA in which individuals were tortured, "disappeared," and otherwise subjected to activities in foreign countries that would be illegal for the CIA to perform itself...

In Re Estate of Ziegler (Cal. Ct. App. - Aug. 31, 2010)

Posted on September 06, 2010
This is justice. Or:This is justice?You decide.Paul Ziegler was a retired school teacher in poor health. In 2000, Richard and Irma LaQue rented the house next door. About six months later, LaQue started doing Ziegler's plumbing, mowing his lawn, and doing other handyman work...

EEOC v. Prospect Airport Svcs. (9th Cir. - Sept. 3, 2010)

Posted on September 03, 2010
The facts can totally help you out.Here's a great female-harasser/male-victim sexual harassment case. That the district court granted summary judgment to the defendant only makes it better. Read the first eight pages of the Ninth Circuit's opinion, which relay the facts...

Lu v. Powell (9th Cir. - Sept. 2, 2010)

Posted on September 02, 2010
Xue Lu and Jie Hao are both from China, and both filed applications for asylum. They don't know each other, but both have the same attorney.Lu's asylum petition was denied by the asylum officer, and she alleged that about a week after her interview with him, he called her up, met her at her house in Monterey Park, and demanded a bribe (and tried to fondle her), and said that if he resisted her -- which she did -- he'd deny her asylym application...

U.S. v. Melchor-Meceno (9th Cir. - Sept. 1, 2010)

Posted on September 01, 2010
"It's just catch-and-release at the border. We never actually do anything to people who illegally enter the country."Tell that to Merced Melchor-Meceno. Who gets deported twice, and when he's caught a third time, he gets sentenced to 75 months in prison...

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