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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

Javhlan v. Holder (9th Cir. - Dec. 3, 2010)

Posted on December 03, 2010
It's "Dissent Friday" today on the Ninth Circuit. A day in which each of the last three published opinions involves a 2-1 decision. Each with a dissent by the most conservative member of the panel.Judge Ikuta dissents in this case, an immigration opinion (asylum) authored by Judge Pregerson and joined by Judge Dorothy Nelson...

Peterson v. Iran (9th Cir. - Dec. 3, 2010)

Posted on December 03, 2010
We just went over affirmative defenses in my Civil Procedure I class. What counts as one, as well as what the consequences are of not raising it.Think it matters? It does here. To the tune of over two billion dollars.This is admittedly a somewhat unusual case, and involves plaintiffs who sued Iran -- successfully -- for sponsoring the 1983 bombing of the U...

People v. Favor (Cal. Ct. App. - Dec. 2, 2010)

Posted on December 02, 2010
Here's a guy I'm glad will be off the streets.

Golin v. Allenby (Cal. Ct. App. - Nov. 30, 2010)

Posted on December 02, 2010
This opinon seems entirely correct. As far as it goes.Jeffrey Golin and Elise Golin are surely vexatious litigants. Of that there can be little doubt. But defendants didn't show that their claims had no reasonable probability of success...

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People v. Smith (Cal. Ct. App. - Nov. 29, 2010)

Posted on December 01, 2010
Police officers perform a valuable and socially beneficial function. They're not the enemy. We should help them when we can. We should even be willing to offer our assistance when it comes at some cost to us. For example, were a police officer to come to my home and ask for my help -- for a glass of water, to make a phone call, to let him check out my back yard for a suspected burglar, etc...

People v. Rasmussen (Cal. Ct. App. - Nov. 9, 2010)

Posted on November 26, 2010
Happy post-Thanksgiving.I don't know how many people actually work the day after Thanksgiving. That's the problem with being in academia for so long. You lose a sense of perspective. I can see that there are exactly three cars in the USD law school parking lot today -- a lot that holds several hundred...

Lyon v. Gila River Indian Community (9th Cir. - Nov. 24, 2010)

Posted on November 24, 2010
This is as good of an opinion as I've seen from Judge Wallace in a long time.It's crisp. It's smart. It's comprehensive. And it's rendered in a very difficult case, one that's both fact-specific as well as incredibly doctrinally complicated...

Eklund v. City of Seattle Municipal Court (9th Cir. - Nov. 24, 2010)

Posted on November 24, 2010
Twenty-five (!) single-spaced pages of facts. Four pages of analysis. Not exactly the way I'd write an opinion. Particularly when sixteen of the fact pages simply type, verbatim, various letters back and forth between the parties. Which are interesting, to be sure, and relevant...

Humane Society v. Locke (9th Cir. - Nov. 23, 2010)

Posted on November 23, 2010
For a sense of our societal values, check this one out.The Columbia River has a number of threatened or endangered fish species, including five salmon and steelhead populations. We want to preserve these species. That makes sense.Lately, the endangered fish species have taken a hit from three basic sources:(1) The Bonneville Dam...

People v. Shrier (Cal. Ct. App. - Nov. 23, 2010)

Posted on November 23, 2010
Agents from the California Department of Justice intentionally eavesdrop upon privileged attorney-client communications while the attorney and client are at the DOJ. The court below dismisses the charges against the defendant based upon this outrageous conduct...

D.N. v. United States (9th Cir. - Nov. 22, 2010)

Posted on November 22, 2010
I don't even understand why this one is close.Wife kills Husband. Husband has a 401(k) account. Wife would ordinarily get it since she's the beneficiary, but you can't benefit from killing someone. So the 401(k) goes to Son, a minor...

Arnall v. Superior Court (Cal. Ct. App. - Nov. 22, 2010)

Posted on November 22, 2010
Here's why you should always include in your retainer agreement the line "The attorney's fees set forth above are not set by law, but are negotiable between attorney and client." Because the failure to include this written statement can, by itself, cost you millions of dollars...

Hillis v. Heineman (9th Cir. - Nov. 19, 2010)

Posted on November 19, 2010
Perfect.Not too long. Not too short. Not overly descriptive. Not overly normative. Correct holding. Concise, understandable and clear.Just like filing a permissive counterclaim doesn't waive an otherwise-preserved objection to personal jurisdiction, ditto for venue (e...

U.S. v. Spangle (9th Cir. - Nov. 19, 2010)

Posted on November 19, 2010
It's not that I find anything objectionable about this opinion. It's just pretty strange/unusual to have an appeal that's in part about whether Judge Kozinski, sitting by designation in the Central District, should have recused himself from a criminal trial against a guy accused of sending threatening communications to various criminal justice officials when the dude had lots of stuff about Judge Kozinski in his car when he was busted...

Lewis v. Verizon Communications, Inc. (9th Cir. - Nov. 18, 2010)

Posted on November 18, 2010
The Class Action Fairness Act (CAFA) requires the Court of Appeals to decide a case within 60 days after permission to appeal has been granted. That's pretty fast. Doable, to be sure, but fast.Sometimes a rush to judgment may have substantively deleterious consequences...

Christian Legal Society v. Wu (9th Cir. - Nov. 17, 2010)

Posted on November 17, 2010
Here's a per curiam opinion in a high profile case -- indeed, one on remand from the Supreme Court -- that's ruthlessly accurate and correct. Plaintiffs sued Hastings Law School arguing that its refusal to fund the Christian Legal Society violated the First Amendment...

U.S. v. Anderson (9th Cir. - Nov. 16, 2010)

Posted on November 16, 2010
You know it's an easy case when the Ninth Circuit only needs five paragraphs -- and no oral argument -- to reverse the district court.Some opinions ain't that tough to write.

Martinez v. Regents of Univ. of Cal. (Cal. Supreme Ct. - Nov. 15, 2010)

Posted on November 16, 2010
Did you ever think that the California Supreme Court could decide an illegal immigration case unanimously? Apparently it can.The question is whether California's provision of resident tuition to illegal aliens is preempted by federal law; particularly, 8 U...

People v. Russell (Cal. Supreme Ct. - Nov. 15, 2010)

Posted on November 15, 2010
While intoxicated, during a fight with his to-be-ex-wife, Tim Russell assaults his wife, rips the telephone wire out of the wall, tells his wife not to call the cops, and leaves the premises. His wife (smartly) goes next door and calls the police, and Russell returns to the home shortly thereafter with a gun...

U.S. v. Todd (9th Cir. - Nov. 15, 2010)

Posted on November 15, 2010
Westlaw gets some free advertising in both the majority and concurring opinions here. With both Judge Noonan and Judge Milan Smith using their law clerks' anticipated use of Westlaw as examples of when you can "know" that a future event will transpire...

Bright v. 99 Cent Only Stores (Cal. Ct. App. - Nov. 12, 2010)

Posted on November 12, 2010
I had no idea that in California, you have a right to sit on your butt, and can file a class action if your employer denies that right. But you do.At least if the nature of your job allows it, you're allowed to sit. Hence the seats that cashiers often have behind them...

Wong v. Jing (Cal. Ct. App. - Nov. 9, 2010)

Posted on November 11, 2010
Here's a SLAPP suit involving Yelp.It's a familiar refrain. Commenter posts a negative review on a web site (here, yelp.com), the relevant business sues the commenter and the web site for defamation and related torts, and -- at least here in California -- the commenter and the site file an anti-SLAPP motion...

U.S. v. Grob (9th Cir. - Nov. 10, 2010)

Posted on November 10, 2010
A girlfriend breaks up with her boyfriend, and the jilted boyfriend sends her twenty-two mean e-mail and text messages. No big deal?What if the messages are things like a text message with the subject heading "I'm Going to Slit Your Throat" that says: "If you ever come back to Montana again I am going to slit your throat...

People v. Cortez (Cal. Ct. App. - Nov. 10, 2010)

Posted on November 10, 2010
The first sentence of this opinion reads:"Octavio Reyes Cortez pleaded guilty to six counts of committing lewd acts upon a child (Pen. Code, � 288, subd. (a)), but appeals from the portion of his sentence which imposes a $30 'court facilities' fee on each of his six convictions...

U.S. v. Schaefer (9th Cir. - Nov. 8, 2010)

Posted on November 09, 2010
You're living in Cool, California. Which is cool on every possible level. You're a local attorney. Life's good, but making ends meet on the law front isn't especially easy. Particularly after your wife gets breast cancer and you have to help out a bit...

In Re Hare (Cal. Ct. App. - Nov. 8, 2010)

Posted on November 08, 2010
When you're a 27-year old cokehead, murder your dealer, and get your girlfriend and 15-year old brother to help clean up the crime scene and bury the body in the desert, you're obviously in a world of trouble. Especially after you're arrested.Things may seem okay, though, once you skip bail and flee the state...

People v. Nordberg (Cal. Ct. App. - Nov. 8, 2010)

Posted on November 08, 2010
It doesn't pay to get juiced after work. As Stephanie Nordberg, a 21-year old North Hollywood woman, learns after she drives drunk, kills a man on a motorcycle, and gets a sentence of nine years in prison.

Glen Hill Farm v. California Horse Racing Board (Cal. Ct. App. - Nov. 8, 2010)

Posted on November 08, 2010
It pays to juice your horse.

People v. Greenwood (Cal. Ct. App. - Oct. 28, 2010)

Posted on November 04, 2010
Let me make sure I get this right.A police officer can permissibly stop any car with valid temporary tags. So long as the computer says that the "regular" registration has expired -- and neither confirms nor denies the existence of a temporary tag (perhaps because temporary tags aren't entered into the computer when you run the plate) -- the driver of the car can't complain...

Ahanchian v. Xenon Pictures (9th Cir. - Nov. 3, 2010)

Posted on November 03, 2010
The Ninth Circuit decides a case this morning that I bet most civil litigators will cite -- either in court or in correspondence -- at least once in their careers. Even the most diligent litigators. Or at least should cite. Hence my reference to it herein...

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