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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

U.S. v. Wipf (9th Cir. - Aug. 31, 2010)

Posted on September 01, 2010
Here's one of the many reasons why I'm not a PCP dealer. Because, as the Ninth Circuit holds, a ten-year statutory mandatory minimum sentence is indeed a minimum sentence. A court can't depart downwards. Even if it wants to. And even if the federal sentencing guidelines suggest a sentence substantially lower than ten years...

People v. Mendez (Cal. Ct. App. - Sept. 1, 2010)

Posted on September 01, 2010
I'm impressed.As I started to read the opinion, I was thinking that this was going to be a classic Court of Appeal opinion in a criminal case. Especially since the defendant, Victor Mendez, is hardly a nice guy. He's in a gang. Has been for a while...

Cotchett, Pitre & McCarthy v. Universal Paragon Corp. (Cal. Ct. App. -

Posted on August 31, 2010
Here's how you make a $7 million+ fee.It was a good fee agreement by counsel. Very favorable. But not unconscionable.Sophisticated parties. Good result.We enforce that stuff.Congrats to Cotchett, Pitre & McCarthy. Rarely, I imagine, has the firm had a better Tuesday mornings.

U.S. v. Armstrong (9th Cir. - Aug. 31, 2010)

Posted on August 31, 2010
Race doesn't matter. We're a post-racial society. Right?"[Richard] Armstrong, Michael Bullard, and James Whitewater went to Wal-Mart around midnight on a Saturday night to buy orange juice. In the juice aisle, they noticed Raylen Smith, an African American man, shopping for milk...

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U.S. v. Kuo (9th Cir. - Aug. 30, 2010)

Posted on August 30, 2010
Sometimes GVRs let the Court of Appeals know that it needs to change its mind. Here's an example.The Ninth Circuit decides an appeal. There's a part about restitution. Defendants don't like that part, and petition to the U.S. Supreme Court. Which GVRs the case, sending it back to the Ninth...

People v. Park (Cal. Ct. App. - Aug. 27, 2010)

Posted on August 27, 2010
Here's the most important appellate opinion I've ever mentioned. At least to a vast majority of people.It'll tell you how to get out of automated red light tickets. At least in cities like Santa Ana.Tickets. That's what people really care about.

Worldmark v. Wyndam Resort Development Corp. (Cal. Ct. App. - Aug. 24, 2010)

Posted on August 27, 2010
Hurrah for the Court of Appeal.Robin Miller is one of the 260,000 members of Worldmark, which is a California nonprofit mutual benefit corporation owned by its members (including Robin) and that owns vacation timeshares. The California Corporations Code entitles members of such groups to obtain the fellow names and addresses of its members for purposes reasonably related to the group, and that's exactly what Miller wants to do, since she wants to propose some bylaws changes...

Mark H. v. Hamamoto (9th Cir. - Aug. 26, 2010)

Posted on August 26, 2010
What happens if you're a notorious federal district judge in Los Angeles who's been investigated, disciplined, called a "disgrace," and even subject to potential impeachment proceedings?You get to sit by designation in Hawaii.Not bad.Of course, the Ninth Circuit will reverse you...

People v. Gabriel (Cal. Ct. App. - July 14, 2010)

Posted on August 26, 2010
I've said it before. Both the California Court of Appeal and I will say it again: Just because the Rutter Group says it doesn't make it so.

People v. Russell (Cal. Ct. App. - Aug. 23, 2010)

Posted on August 25, 2010
When does a burglary end? You might think that question to be a purely academic one, or one with few consequences. But it's actually pretty important, for a variety of different reasons. Some of which I'll mention in a moment.But back to the actual question...

Price v. Stossel (9th Cir. - Aug. 24, 2010)

Posted on August 24, 2010
Guess who the Ninth Circuit made very happy today? Shirley Sherrod.As you undoubtedly know, was the Agriculture Department's director of rural development in Georgia who was fired from her job when an out-of-context video of a speech of hers was posted by a conservative blogger that made it appear as if she was making racist statements...

Millender v. County of Los Angeles (9th Cir. - Aug. 24, 2010)

Posted on August 24, 2010
The district court denied qualified immunity. The Ninth Circuit reversed, albeit in a split opinion (that I discussed here) in which each of the three members of the panel felt compelled to write a separate opinion. Given those facts, as well as the issues involved, it's wasn't at all surprising to me that the case got taken en banc...

Rodriguez v. Holder (9th Cir. - Aug. 23, 2010)

Posted on August 23, 2010
We generally don't deport people on the basis of having a tiny amount of marijuana for personal use.But the Ninth Circuit holds that this rule doesn't help Dan Rodriguez. He gets kicked out. The rule only applies when you have only a single offense, not when (as with Dan) there's more than one...

People v. Williams (Cal. Supreme Ct. - June 28, 2010)

Posted on August 23, 2010
One way to help assure that you get the death penalty is to kidnap someone at random, tie them up in the trunk of their car, pour gasoline all over it, and then burn them alive. Especially when, at the penalty phase, the victim who you raped in the 1980s (a crime for which you were convicted) testifies -- as does your confederate -- that she "retired to bed for the night when defendant dragged her from her bed, beat her with a 'huge stick,' and sodomized and raped her, repeatedly calling her 'bitch' during the sexual assaults...

Berman v. Cate (Cal. Ct. App. - Aug. 19, 2010)

Posted on August 20, 2010
I'm not saying that the Court of Appeal necessarily gets this one wrong. Maybe California pecedent really is this stark. Nonetheless, this seems totally bizarre to me.Matthew Cate commits a crime. He enters into a plea deal. He pleads guilty, as well as waives credit for time served, in return for (1) three years in prison, and (2) no more than three years on parole...

People v. Valli (Cal. Ct. App. - Aug. 19, 2010)

Posted on August 19, 2010
We charged you with murder. Plus being a felon in possession. We introduced evidence that you fled the police in at attempt to prove your guilt.You beat the rap. The jury acquitted you. Well done.But not so fast. We were ready for that possibility...

Moore v. Superior Court (Cal. Supreme Ct. - Aug. 19, 2010)

Posted on August 19, 2010
So what if you're mentally incompetent to stand trial, and are so delusional that you can't even understand the nature of the proceedings against you? We still get to conduct proceedings against you in an attempt to find you to be a sexually violent predator and thereby commit you...

Fortune Dynamic, Inc. v. Victoria's Secret (9th Cir. - Aug. 19, 2010)

Posted on August 19, 2010
How often does the Ninth Circuit refer to the attire of Britney Spears as a factual predicate for the resolution of an appeal?At least once.The opinion reverses the grant of summary judgment to Victoria's Secret in a case in which they sold a tank top with the word "Delicious" in printed in silver cursive letters on the front of a hot pink tank top (classy!) notwithstanding the fact that plaintiff had a registered trademark for that word...

U.S. v. Alvarez (9th Cir. - Aug. 17, 2010)

Posted on August 18, 2010
The Ninth Circuit has gotten a lot of attention lately -- and rightfully so -- for its important preliminary Prop. 8 decisions. But there's some other stuff, on the merits, that's worthy of attention as well.Like this case.It's a great debate between Judge Milan Smith, who authors the majority opinion, and Judge Bybee, who dissents...

Greenwood v. CompuCredit Corp. (9th Cir. - Aug. 17, 2010)

Posted on August 18, 2010
I don't know if you ever received an "Aspire" VISA card offer in the mail. I know I did. Several times. The thing was clearly targeted to unsophisticated consumers with terrible credit. It was a horrendous deal, and the company was clearly preying on people who didn't know how to read very well...

U.S. v. Brooks (9th Cir. - July 8, 2010)

Posted on August 16, 2010
It should go without saying, but I'll say it anyway: Don't pimp 15-year old runaways.

Chapala Mgm't Corp. v. Stanton (Cal. Ct. App. - July 29, 2010)

Posted on August 13, 2010
Tom and Donna Stanton live in a condo and want to replace two windows. The existing ones are brown, but the Stantons would like to replace them with something that's more like the color of sandstone. Not pink or purple, or anything garish like that. Just a really, really "light" brown...

People v. Lynch & Jennings (Cal. Supreme Ct. - Aug. 12, 2010)

Posted on August 12, 2010
What we learn today is that if you burglarize and kill the elderly, you'll be sentenced to death, and that if you neglect and kill your five-year old son, you'll also be sentenced to death. In both cases, the California Supreme Court will unanimously affirm...

People v. Hall (Cal. Ct. App. - Aug. 9, 2010)

Posted on August 12, 2010
Forty-seven years to life for accidentally killing someone while driving drunk. Seems harsh, right? Not here. Not to me, anyway.

Wilson v. Brown (Cal. Ct. App. - Aug. 10, 2010)

Posted on August 11, 2010
Sometimes you wonder how a trial court can get something so wrong. Like here.Party A sends requests for admission to Party B, which denies them. Party A then wins at trial, and seeks cost of proof sanctions against both Party B as well as B's counsel for all the attorney's fees A incurred after the RFAs were sent...

Snatchco v. Westfield LLC (Cal. Ct. App. - Aug. 11, 2010)

Posted on August 11, 2010
You own a large shopping mall in California. Which of the following are you not allowed to do:(1) Prohibit a union from passing out leaflets urging patrons to boycott one of the stores in the mall.(2) Prohibit a preacher from initiating conversations with mall patrons in an attempt to "share his faith...

Mito v. Temple Recycling Corp. (Cal. Ct. App. - Aug. 8, 2010)

Posted on August 10, 2010
Three things about this opinion: (1) I love how short it is. Love it. Five double-spaced pages. Yet says everything -- everything -- that need be said.(2) The opinion is totally right. Indisputably. Plaintiffs filed a complaint on the last day of the statute of limitations, but didn't include a civil cover sheet...

People v. Brady (Cal. Supreme Ct. - Aug. 9, 2010)

Posted on August 09, 2010
There's good forensics evidence that suggests that you're the murderer. The person you killed was a Manhattan Beach police officer. Who you killed in the line of duty during a traffic stop. In cold blood. With three separate shots. As his 12-year old nephew watched...

People v. Jones (Cal. Ct. App. - Aug. 9, 2010)

Posted on August 09, 2010
An appeal this morning from sunny San Diego; indeed, from within a mile or so of my office: "Defendant Ahmanda Jones appeals from her conviction for shooting at an occupied vehicle. . . . On the night of August 29, 2008, Angel Torres arranged to meet with Jones, a prostitute whom he had met a few nights earlier, to have sex...

People v. Busch (Cal. Ct. App. - Aug. 4, 2010)

Posted on August 06, 2010
Farmer goes to Store and says: "I'd like to make a purchase." Store says: "Sure. We're a full-service facility. We've got lots of alfalfa. Also some high-grade marijuana, if you're into that sort of thing."Farmer responds: "Heck, I'll give it a shot. Maybe it'd be fun to get high while feeding the cows...

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