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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. Carter (Cal. Ct. App. - Feb. 26, 2010)

Posted on February 26, 2010
One of the things you can do as a criminal defendant is to try to gum up the works. Make a motion to represent yourself, then ask for a lawyer, then ask for another lawyer, then ask for a different lawyer, etc. That'll definitely make the prosecution a hassle, and take up time...

Doody v. Schiro (9th Cir. - Feb. 25, 2010)

Posted on February 25, 2010
Judge Tallman, joined by Judges Rymer and Kleinfeld, opens the dissenting opinion carefully. It starts with the following initial paragraph: "I certainly understand the passion behind the majority?s distaste for the facts of this case. I can see how a lengthy overnight interrogation of a seventeen and one-half year-old high school student can be off-putting?perhaps so off-putting that were we reviewing this issue from scratch on direct appeal, we might be tempted to fashion rules that would afford relief...

Daniels v. Robbins (Cal. Ct. App. - Feb. 24, 2010)

Posted on February 24, 2010
Lawyers get sued for malicious prosecution. It happens. When they do, they almost invariably file anti-SLAPP motions. Rightly so.There's some good stuff in this opinion for people on both sides of this equation -- both plaintiffs who sue (and then oppose the anti-SLAPP motion) and the defendant attorneys...

In Re Christopher C. (Cal. Ct. App. - Feb. 22, 2010)

Posted on February 23, 2010
What a nightmare. A husband and wife have seven children: Christopher (who's now 16), twins William and Kayle (who are 11), and quadruplets (who are 9). Here's just a snippet of their family situation, which has been in the dependency court for the past six years:"As the investigation unfolded, some of the children alleged that Father sexually abused them and that their siblings engaged in substantial sexual conduct...

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Robinson v. Schiro (9th Cir. - Feb. 22, 2010)

Posted on February 22, 2010
It's a death penalty habeas case out of Arizona. The panel consists of Judges Betty Fletcher, Marsha Berzon, and Johnnie Rawlinson.Three women and three Democratic appointees, I might add. Which reminds me that the twentieth anniversary of the first all-female Ninth Circuit panel is coming up next year -- a panel that Judge Fletcher was also on, even those many years ago (alongside Judge Dorothy Nelson and Judge Judy Keep, the latter sitting by designation)...

Christian v. Frank (9th Cir. - Feb. 19, 2010)

Posted on February 19, 2010
The Ninth Circuit graciously reminds us this morning that it's not 1973.Let's go back for a moment to that point in history. President Nixon takes the last troops out of Vietnam. Tower Two of the World Trade Center opens. Vice President Spiro Agnew pleads no contest to tax evasion charges and resigns...

Zetino v. Holder (9th Cir. - Feb. 18, 2010)

Posted on February 18, 2010
You see a relatively high amount of incompetence in immigration court. Cookie-cutter petitions. Excessive fees for doing nothing. Horrible briefs. Missed deadlines.Not uniformly, of course. But this is definitely a problem area.There's one place, however, where I've never seen a problem: Law school immigration clinics...

U.S. v. Borowy (9th Cir. - Feb. 17, 2010)

Posted on February 17, 2010
Don't use Limewire if you have kiddie porn on your computer. Or any other peer-to-peer network, for that matter.It's not a Fourth Amendment violation for the government to sign on and check out other people's computer. Even if you tried (but failed) to turn off that feature on Limewire...

U.S. v. Edwards (9th Cir. - Feb. 16, 2010)

Posted on February 16, 2010
There's only one published opinion from the Ninth Circuit today. The first one, I might add, in almost a week. Fortunately, it's one that's definitely worth reading.Reasonable minds might approach this case from a variety of different perspectives. Which is evidenced in part by the fact that the panel is divided...

People v. Ayala (Cal. Ct. App. - Feb. 11, 2010)

Posted on February 12, 2010
Here's the first paragraph of the factual section of this opinion earlier today:"The Sure�os and Norte�os are rival street gangs. Defendant joined the Sure�os around 1996, when he was 12 years old. In 1997, at age 13, defendant committed assault with a deadly weapon?he stabbed someone in the back at school...

California Correctional Peace Officer's Ass'n v. California (Cal. Ct. App. - Feb. 11, 2010)

Posted on February 12, 2010
Nothing from the Ninth Circuit in two days. Nothing from the California Court of Appeal today. It's a lazy, lazy four- or five-day weekend, apparently.Yesterday, at least, we learned that even if you're one of the most powerful unions in the nation, you don't always win in the Court of Appeal...

Bull v. City and County of San Francisco (9th Cir. - Feb. 9, 2010)

Posted on February 10, 2010
They say -- okay, even I say -- that the en banc draw doesn't always matter. Which I believe, if only because I say it.But sometimes it does. Here's one of those times.It's a set of opinions that you'd want to read wholly apart from the vote lineup...

Nunez v. Holder (9th Cir. - Feb. 10, 2010)

Posted on February 10, 2010
Rarely do I change my opinion as radically as I did when I read this case.I'll describe my reaction temporally. The first thing I notice is that the respondent's name is Holder, which means it's an immigration case, and the second thing I see is that Judge Reinhardt authors the majority opinion and Judge Bybee dissents...

U.S. v. Vongxay (9th Cir. - Feb. 9, 2010)

Posted on February 09, 2010
You're a police officer who sees a group of people hanging out in gangland in typical gang colors and, believing that one of them might well be carrying a gun, approach one of them and ask for consent to do a pat-down search of his waist. At which point the individual responds by placing his hands on his head...

Mansourian v. Regents of the Univ. of Calif. (9th Cir. - Feb. 8, 2010)

Posted on February 08, 2010
Most people know what Title Nine entails. At least generally. So much so that even the women's apparel manufacturer with that name gets a nod in Judge Berzon's published opinion. (Which, I might add, would be a good way to create future judicial income through paid product placement mentions...

Haight v. Catholic Healthcare West (9th Cir. - Feb. 4, 2010)

Posted on February 04, 2010
Sometimes being smart is a bad thing.Here, for example, Oakland attorney Jeremy Friedman files a potentially lucrative qui tam suit against Catholic Heathcare West, alleging that a big federal grant that scientist Michael Berens got from the NIH to study brain cancer in beagles was based upon false statements...

Chase Manhattan Bank v. Texel (9th Cir. - Jan. 28, 2010)

Posted on February 04, 2010
Judge Kleinfeld does a good job of making this somewhat complicated bankruptcy case clear, and writes concisely and persuasively.But I'll give a shot at writing something even shorter. "When you're Chase Manhattan Bank, and you refi a loan, make sure you record the deed of trust...

Dotson v. Amgen, Inc. (Cal. Ct. App. - Feb. 3, 2010)

Posted on February 03, 2010
I'm glad the Court of Appeal (eventually) elected to publish this one. Because it's right, and if trial courts are holding otherwise -- as one did below here -- I think they need to be told they're doing it wrong.I'm all for finding arbitration provisions to be unconscionable in appropriate cases...

U.S. v. Rassam (9th Cir. - Feb. 2, 2010)

Posted on February 02, 2010
Here's another case that will go en banc. It's a high-profile case, involving high profile issues: Here, what sentence should be given to Ahmed Rassam, the "Millennium Bomber" who plotted to detonate explosives at LAX on December 31, 1999. Rassam cooperated with the government for two years, but then stopped (and retracted his prior statements)...

U.S. v. Leow (9th Cir. - Feb. 2, 2010)

Posted on February 02, 2010
The Ninth Circuit's web site lists the "case origin" for every published opinion; basically, what district it came from. You could just say "Central District of California" or "District of Arizona," but the Ninth Circuit provides additional information as well that's not on the caption; namely, what particular division (i...

Brown, Winfield & Canzoneri v. Superior Court (Cal. Supreme Ct. - Feb. 1, 2010)

Posted on February 01, 2010
Not all 4-3 decisions in the California Supreme Court are actually close. At least in my mind. And, in the end, I don't think this one necessarily is as well.That said, I probably come out somewhere slightly in between the opinion of Chief Justice George, who authors the majority opinion, and Justice Werdegar, who authors the dissent...

State Bar v. Findley (9th Cir. - Feb. 1, 2010)

Posted on February 01, 2010
Apparently the good thing about being a sovereign is that if you don't like a judicial decision, you can change it.The question here is whether a cost award in favor of the California State Bar is dischargeable in bankruptcy. California attorney John Findley gets disciplined and spanked with a mandatory $14,000 award of costs in favor of the Bar...

People v. Lessie (Cal. Supreme Ct. - Jan. 28, 2010)

Posted on January 29, 2010
Imagine that the first sentence of a contemporary opinion by the California Supreme Court opinion begins with the sentence: "We granted review to decide whether to overrule a 1971 pro-Miranda decision of this Court." Which is essentially what the first sentence of this opinion says...

Robles v. Chalilpoyil (Cal. Ct. App. - Jan. 27, 2010)

Posted on January 28, 2010
It's a SLAPP appeal, and those are always slightly interesting. Especially when they involve California attorneys as defendants.The appellant here is actually an expert witness who the plaintiff's lawyer allegedly had to boot off a case (and get a continuance of the trial date) because he had falsely testified at a deposition...

U.S. v. Treadwell (9th Cir. - Jan. 28, 2010)

Posted on January 28, 2010
It may well be that 2009 was the "Year of the Ponzi Scheme," and Judge Gould makes a reference to exactly that in the second footnote of his opinion. But if so, 2010 may well be the "Year of Huge Sentences." As, this morning, the Ninth Circuit affirms not only the convictions of Randall Treadway, Ricky Sluder and Larry Saturday for running a $40 million Ponzi scheme, but also Judge Whelan's 300-, 188-, and 63-month sentences (respectively) for the trio...

Kawashima v. Holder (9th Cir. - Jan. 27, 2010)

Posted on January 27, 2010
Judge O'Scannlain writes this morning:"We are called upon to decide whether petitioners? convictions for subscribing to a false statement on a tax return and for aiding and assisting in the preparation of a false tax return qualify as 'aggravated felonies' that subject them to removal under the relevant immigration laws...

Save The Plastic Bag Coalition v. City of Manhattan Beach (Cal. Ct. App. - Jan. 27, 2010)

Posted on January 27, 2010
Sometimes your legal strategies can turn around and bite you in the arse.For decades, environmental advocates have litigated for a strong and vigorous interpretation of statutes like the California Environmental Quality Act. Anti-environmental groups have decried the resulting doctrines, particularly the requirement that compels the creation of lengthy, time-consuming and often expensive environmental impact reports (EIRs) whenever a developer or municipality wants to do something that might arguably have an impact on the environment...

McDermott v. Ampersand Publishing (9th Cir. - Jan. 26, 2010)

Posted on January 26, 2010
I'll have more of substance to say about this case shortly. Which involves a facially narrow labor law issue but which nonetheless is a fairly interesting one (and one which I think will get some play).But let me ignore the doctrine for a second and simiply give you the pracical bottom line for now:Don't worry about reading this opinion, which came out this morning...

Manuel C. v. Superior Court (Cal. Ct. App. - Jan. 26, 2010)

Posted on January 26, 2010
Justice Epstein seems right that in dependency proceedings, once a case involving one child is over, a party gets a new peremptory challenge to the judge when another case is brought shortly thereafter involving a different child (albeit in the same family)...

Ho v. Hsieh (Cal. Ct. App. - Jan. 26, 2010)

Posted on January 26, 2010
It's a short little opinion from this morning. At least as Court of Appeal decisions go. Twelve double-spaced pages.But it could have been even shorter. The actual analysis only takes up three and a half.Plus, I can summarize it in a single sentence...

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