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All Reporters → cal-daily-op-serv → Volume 2000

Opinions in cal-daily-op-serv Volume 2000

*5Opinion For purposes of applying the one-year-from-discovery limitation on commencement of attorney malpractice actions in Code of Civil Procedure section 340.6, subdivision (a) (section 340.6(a)),1 who bears the burden of proving when the plaintiff discovered, or through the use of reasonable diligence should have discovered, the facts constituting the defendant’s alleged malpractice? As expla...
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*33 Opinion The issue in this case is whether under Code of Civil Procedure section 2034, 1 which provides for discovery of expert witness information, a trial court may preclude a treating physician, designated as an expert witness, from testifying at trial regarding causation if no expert witness declaration was submitted on his behalf. We conclude section 2034 does ...
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*322 Opinion —Petitioners, Karen Evens and United Teachers of Los Angeles (United Teachers), seek a writ of mandate directing the superior court to set aside its order denying their motion to enjoin the use of an illegally produced videotape recording by real parties, the Los Angeles Unified School District (District) and the Board of Education of the Los Angeles Unified School District (Boar...
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Opinion —The City of Palo Alto (City) appeals from an order confirming an arbitration award in favor of Danton Camm, a former city employee, and denying the City’s petition to vacate the award. Camm was fired from the City’s utilities department for threatening to shoot another employee, Brian Bingham, and the members of his family. The arbitrator ordered that Camm be reinstated to his fo...
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200 F.3d 624 (9th Cir. 1999) CLARKE F. WALKER; EUGENE ASAI; JOSEPH LINDSAY; DUANE MORLAN; WAYNE TELLIS; RICHARD HARRIS; CONNIE JONES-ROOT; JACKY PARKS; JOANNA DEITER; JOSE SANCHEZ, Plaintiffs-Appellants,v.STATE OF CALIFORNIA, Defendant,andRICHARD WEIBE, Defendant-Appellee. No. 98-16565 U.S. Court of Appeals for the Ninth Circuit Submitted December 10, 19991Filed December 30, 1999 ...
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The question before us is whether pass-through items from Subchapter S corporations (S corporations) can be included in determining self-employment tax liability under § 1402(a) of the Internal Revenue Code. Taxpayers Paul and Jane Ding appeal from the tax court’s determination that they were not entitled to deduct pass- *588 through losses from two S corporations for purposes...
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Abdul Daas appeals his jury conviction and sentence for distributing listed chemicals, specifically ephedrine and pseu-doephedrine, with reasonable cause to believe they would be used to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(2). 2 Daas contends that (1) the evidence was insufficient to support his conviction because 21 U.S.C. § 841(d)(2) criminalizes the di...
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ORDER Prior report: 191 F.3d 1082 The opinion filed August 27, 1999 is amended in paragraph (7) of Section C, *1167 lines 14 through line 19 [191 F.3d at 1089] to read as follows: “The defendant claimed that the evidence found in the truck did not belong to him, and that he did not know what was in the bag. The jury found that the defendant knew what was in the bag, and the district judge...
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Defendants/Appellees Juan Miguel Pala-fox-Mazon, Carlos Gamboa-Miranda, and Ramon Garcia-Montijo backpacked into the United States carrying approximately 47 pounds of marijuana each and were arrested in Arizona by the U.S. Border Patrol. After the government dismissed the conspiracy charge against them, each Defendant pleaded guilty to one count of possession with intent to distribute marijuana...
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198 F.3d 1104 (9th Cir. 2000) HELEN WEYER, WILLIAM WEYER, and the marital community composed thereof, Plaintiffs-Appellants,v.TWENTIETH CENTURY FOX FILM CORPORATION, a Delaware corporation doing business in Washington, UNUM LIFE INSURANCE COMPANY OF AMERICA, a Nevada corporation doing business in Washington, Defendants-Appellees. No. 98-35215 U.S. Court of Appeals for the Ninth Circui...
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OPINION Secured creditor National Loan Investors, L.P. (NLI) appeals a bankruptcy court order confirming debtors John and Karen Brewster’s (debtors) chapter ll1 plan and an order denying NLI’s motion to alter or vacate the confirmation order. The issues on appeal are the timeliness of the appeal and whether the bankruptcy court should have granted NLI a continuance to meet debtors’ last-minute ...
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OPINION After trial, the bankruptcy court entered judgment in favor of appellant County of Sacramento (“the County”), finding debt- or’s obligations to appellant nondischargeable pursuant to § 523(a)(5) 1 as child support arrears. The bankruptcy court also found post-petition interest on the support arrears to be dischargeable. The County appeals the latter; we REVERSE. I. FACTS On 26 Nov...
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OPINION Appellant Wells Fargo Bank, N.A., as agent for itself, Bear Stearns & Co., Inc. *499 and Cerberus Partners, LP (the banks), appeals from an order, of the bankruptcy court authorizing appellees Fidelity and Deposit Company of Maryland and American International Group (the bonding companies) to negotiate and propose compro-' mises of disputes with owners of debtors’...
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*494 OPINION In 1994, Kathryn Flegel (“Debtor”), a physician, formed Northwest Internal Medicine (“NIM”) and provided patient and billing services through NIM until October 1995. As of October 1, 1995, Debtor ceased providing services through NIM and organized Primary Care Associates (“PCA”), providing and billing all of her patient services through PCA after this date. Altho...
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OPINION Plaintiffs Sidney and Sandra Lachter filed a complaint objecting to the discharge of their claim pursuant to Code § 523(a)(2) 2 . The claim had previously been reduced to judgment in a proceeding in the Arizona Superior Court. The Bankruptcy Court entered judgment declaring the debt to be excepted from discharge, and imposed a money judgment for the amount owed. Because...
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Opinion Martha A. Fenton (Fenton), executor of the estate of Sue E. Sedlak (Sedlak), claimant to a portion of the estate of Lorraine Justesen (Justesen), appeals an order denying her petition to determine entitlement to distribution. (Prob. Code, § 11700.)1 Justesen’s will left one-half of her estate to Sedlak, subject to the condition that Sedlak was living at the time of distribution. Sedlak di...
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This appeal by would-be purchasers of the familiar blue jeans name brand Levi’s, at Fred Meyer, Inc., a prominent nationwide retailer, presents the question of whether a person can sue under 42 U.S.C. § 1981 for the refusal of a retailer to enter into a sales contract, which was solicited through fraudulent misrepresentation by the potential customer and would be voidable at that retailer’s dis...
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Jose Luis Flores-Garcia appeals his conviction for assisting an inadmissible alien felon to enter the United States in violation of 8 U.S.C. § 1327. Flores-Garcia was convicted after the district court held that Flores-Garcia’s knowledge of the assisted alien’s prior felony conviction was not an element of section 1327. We review that statutory construction de novo, see United States v. H...
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Appellant David Vernon Tank appeals his conviction and sentence for conspiring to sexually exploit a child for the purpose of producing a sexually explicit visual depiction in violation of 18 U.S.C. §§ 2251(a) and (d); conspiring to engage in the receipt and distribution of sexually explicit images of children in violation of 18 U.S.C. §§ 2252(a) and (b)(1); and distributing sexually explicit i...
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The question for decision is whether the federal Assimilative Crimes Act, 18 U.S.C. § 13(a), as interpreted by the teachings of Lewis v. United States, 523 U.S. 155, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998), permits application of the Oregon criminal trespass statute to certain conduct committed within a U.S. Post Office. Appellant Vincent Earl Waites contends that his conviction and sentence for...
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OPINION I These appeals involve the scope of Bankruptcy Code (“Code”) Section 365(d)(3) and a landlord’s entitlement under that section to an administrative claim when a debtor does not meet postpetition obligations under a lease of real property. The Chapter 11 debtor’s lease required the payment of certain obligations embodied in two promissory notes. The amounts were desi...
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Opinion Everado Obispo Adan appeals from the judgment entered after a jury convicted him of workers’ compensation fraud. (Ins. Code, § 1871.4, subd. (a)(1).) We affirm and hold, among other things, that the medical experts’ testimony to establish that Adan falsified his symptoms *392 does not violate Penal Code section 29, 1 which prohibits an expert from testifying whether a defendant has ...
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199 F.3d 1109 (9th Cir. 2000) LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS VACATION-HOLIDAY TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS PENSION TRUST FUND FOR NORTHERN CALIFORNIA; LABORERS TRAINING AND RETRAINING TRUST FUND FOR NORTHERN CALIFORNIA, Plaintiffs-Appellants-Cross-Appellees,v.LESLIE G. DELBON CO., INC., a California corporation, Defendant-Appellee-Cros...
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91 Cal. Rptr. 2d 509 (2000) 22 Cal. 4th 41 989 P.2d 1277 Randolph LEE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. No. S077289. Supreme Court of California. January 6, 2000. Michael P. Judge, Public Defender, Michael Allensworth and John Hamilton Scott, Deputy Public Defenders, for Petitioner. No appearance for Respondent. Gil Garcetti,...
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91 Cal. Rptr. 2d 623 (2000) 22 Cal. 4th 48 990 P.2d 506 The PEOPLE, Plaintiff and Respondent, v. Curtis Lee ERVIN, Defendant and Appellant. No. S021331. Supreme Court of California. January 6, 2000. Rehearing Denied February 23, 2000. *631 John Doyle, under appointment by the Supreme Court; Law Office of Cliff Gardner and Cliff Gardner, San Francisco, for Defendant and Appellant. Daniel E. Lungre...
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Opinion The Sexually Violent Predators (SVP) Act (Welf. & Inst. Code, § 6600 et seq.) has no provision for discovery.1 If the 1986 Civil Discovery Act has application in SVP proceedings, here there was no good cause for the trial court to order additional psychiataric interviews Jack Sporich, a recidivist child molester, was about to be released from state prison in 1996 when the Director of Corr...
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Opinion In People v. Falsetta (1999) 21 Cal.4th 903 [89 Cal.Rptr.2d 847, 986 P.2d 182], our Supreme Court recently held that Evidence Code section 1108, which allows evidence of a defendant’s prior sexual offenses in prosecutions for sex crimes, does not violate a defendant’s right to due process of law. In this case, following Falsetta, we hold that Evidence Code section 1109, which al...
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ORDER The opinion filed October 12, 1999, slip op. 12555, is amended as follows: Slip op. at 12561, heading [1]: Delete entire paragraph beginning with “This court, however, .... ” and replace with: This court, however, has held that, because of the 1996 AEDPA amendments, it can no longer reverse a state court decision merely because that decision conflicts with Ninth Circuit pre...
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This appeal arises from a clerical error in one part of 18 U.S.C, § 3583(d), the statute that authorizes a district court to impose discretionary conditions of supervised release following imprisonment. See 18 U.S.C. § 3583(d). In so authorizing a district court, § 3583(d) refers to certain subsections of 18 U.S.C. § 3563(b), the statute that authorizes the discretionary i...
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91 Cal.Rptr.2d 659 (2000) 22 Cal.4th 147 990 P.2d 539 Ora PEATROS, Plaintiff and Appellant, v. BANK OF AMERICA NT & SA et al., Defendants and Respondents. No. S076454. Supreme Court of California. January 10, 2000. *660 Law Offices of Nikki Tolt, Nikki Tolt, Beverly Hills; Quackenbush and Quackenbush and William C. Quackenbush, San Mateo, for Plaintiff and Appellant. Bill Lockyer, Attorney Ge...
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91 Cal. Rptr. 2d 687 (2000) 22 Cal. 4th 106 990 P.2d 563 The PEOPLE, Plaintiff and Respondent, v. Larry Salvador MARTINEZ, Defendant and Appellant. No. S062266. Supreme Court of California. January 10, 2000. *691 David H. Goodwin, under appointment by the Supreme Court, Los Angeles, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assist...
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*496 Opinion The Director of the California Department of Health Services (Director) and the Department of Health Services (collectively the Department) appeal from a judgment for Florence Western Medical Clinic and the clinic’s principal, Accie Mitchell, M.D. (collectively Florence). The judgment, rendered pursuant to Florence’s petition brought pursuant to Code of Civil Procedu...
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102 Cal. Rptr. 2d 864 (2001) 85 Cal. App. 4th 1356 PAUL FOR COUNCIL, Plaintiff and Appellant, v. Ricki HANYECZ et al., Defendants and Respondents. No. B140077. Court of Appeal, Second District, Division Three. January 5, 2001. *866 William J. Cleary, Jr., Los Angeles; Paul M. Christiansen, for Plaintiff and Appellant. Reed & Davidson, Dana W. Reed and Bradley W. Hertz, for Defendants and Resp...
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These consolidated appeals arise out of an attempted class action brought to impose ERISA status and liability upon an employee benefit plan which the defendants assert is an IRA plan not covered by Parts 2 and 3 of Title I of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. The District Court granted summary judgments. The plaintiffs have appealed the judgments, and...
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200 F.3d 1237 (9th Cir. 2000) MARILYN PRICE, Guardian Ad Litem for LOHREN PRICE, CHERYL CRAMER, Guardian Ad Litem for DANIEL MASON, and NICOLE CRAMER, Guardian Ad Litem for NICHOLAS CRAMER, Plaintiffs-Appellees,v.ALBERT KRAMER, STEPHEN D'ANJOU, JOSEPH DELADURANTEY, and CITY OF TORRANCE, Defendants-Appellants. Nos. 97-56580, 98-55484 U.S. Court of Appeals for the Ninth Circuit Argu...
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200 F.3d 641 (9th Cir. 2000) HERMAN RESNICK, Plaintiff-Appellant,v.WARDEN HAYES; LT. ERNST; OFFICER MYERS (DHO); COUNSELOR AUNE; OFFICER WADE, Defendants-Appellees. No. 98-15704 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT October 7, 1999, Argued and SubmittedJanuary 11, 2000, Filed 1 NOTE: SEE AMENDED OPINION AT 213 F.3d 443. ...
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Timothy James Whitehead (“Whitehead”) seeks reversal of his jury conviction for importation of marijuana, see 21 U.S.C. §§ 952, 960 (1994), and importation of marijuana with intent to distribute, see id. § 841(a)(1), on the ground that the government infringed upon his Fifth Amendment right to remain silent. In particular, Whitehead contends that the district court erred in admitting evidence...
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*528 Opinion Factual and Procedural Background The City of San Diego (City) filed a criminal complaint against Debra Carol Kernes (Kernes) charging her with misdemeanor vehicular manslaughter. The City was also named as a codefendant of Kernes in a companion civil action brought by the family of the victim. Kernes moved to recuse the city attorney from prosecuting the criminal action unde...
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Opinion 1. Introduction Carla A. Thomas (Thomas), an African-American woman, began working at the California Department of Corrections (Department) as a corrections *509officer in 1987. She alleges that beginning in 1989 she was subjected to racial and gender discrimination and to retaliation for her reports of such discrimination, all in violation of the California Fair Employment and Housing Act...
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concurring. Although the Court has identified a sufficient reason for rejecting the Court of Appeals’ mootness determination, it is important also to note that the case would not be moot *196even if it were absolutely clear that respondent had gone out of business and posed no threat of future permit violations. The District Court entered a valid judgment requiring respondent to pay a civil penalt...
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I Congress has adopted a policy that favors contracting with small businesses owned and controlled by the socially and economically disadvantaged. See § 8(d)(1) of the Small Business Act, as added by §7 of Pub. L. 87-305,75 Stat. 667, and as amended, 15 U. S. C. § 637(d)(1) (1994 ed., Supp. IV). To effectuate that policy, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA)...
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Seyfarth, Shaw, Fairweather, & Gerald-son, a law firm, and Mitchell Whitehead, one of its attorneys (collectively, “Sey-farth”), appeal from the district court’s order awarding' attorneys’ fees and costs under 28 U.S.C. § 1447(c) to Anthony Rutledge and the AFL Hotel and Restaurant Workers’ Health and Welfare Fund (collectively, “Rutledge”). The court made the award on the strength of its prior de...
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We must decide whether a lottery ticket pooling service itself constitutes a “lottery” within the meaning of federal anti-lottery statutes. I PowerPick, Inc. (“PowerPick”), an Arizona corporation, operates a lottery ticket pooling service. PowerPick invites the general public to purchase participations in pools of twenty-five or fifty players and in turn purchases Arizona Lotto and Arizona Po...
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The Nez Perce National Forest is located in north central Idaho east of Grange-ville. It is part of our cherished national forest system and managed by the United States Forest Service through its Red River Ranger District. In accordance with government contracts, the validity of which are not involved in this case, logging and associated road building activities were scheduled to occur in the Fo...
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200 F.3d 653 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.GREGORY SCOTT MACK, aka Crusty; GORDON SPENCER GATEWOOD , aka Smoosh; MARCUS CALVIN BAKER, aka Chipmunk; KRISTIN CHERYL GUSTAFSON, aka Echo, Defendants-Appellants. No. 98-30195 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 14, 1999Filed January 12, 2000 [Copyright...
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OPINION In this appeal, a creditor asserts that his judicial lien, which was created prior to the declared homestead, cannot be avoided, even though it impairs the debtor’s homestead exemption pursuant to § 522(f) of the Bankruptcy Code. The creditor argues that the Code is silent on this priority issue, and he would have the Panel rule in his favor based on his lien status under Cali...
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OPINION Creditor Fogal Legwear of Switzerland, Inc. (“Fogal”) appeals the bankruptcy court’s entry of summary judgment on its complaint to deny debtors Sheldon and Joan Wills (“Debtors”) a discharge based on their prepetition transfers of property and their failure to disclose certain property and the transfers. The primary question presented by this appeal is whether the fact that property t...
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Opinion I. Introduction This is an appeal by a boy who was injured when a towrope attached to an inner tube in which he and another boy were riding, and which was being *546 pulled by a boat owned and driven by respondent, broke and snapped back, hitting him in the eye. The trial court held that the case was covered by the primary assumption of risk doctrine articulated ...
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Opinion The juvenile court found Robert E. committed perjury when he testified in his own defense in a previous trial. In this single-issue appeal, he claims the court erred in admitting his confession to perjury because it was allegedly obtained in violation of his Sixth Amendment right to counsel. I At a December 3, 1997 juvenile court hearing, Robert testified concerning char...
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Opinion Penal Code section 245, subdivision (c) 1 punishes “an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer . . . .” (Italics added.) As has been often noted, a pellet gun 2 is clearly an instrument other than a firearm. (See, e.g., In re Jo...
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Social Security regulations require an Administrative Law Judge (ALJ) to fill out and attach to each decision, “in any case where there is evidence which indicates the existence of a mental impairment,” 42 U.S.C. § 421(h), a psychiatric review technique form (PRTF) evaluating the severity of mental impairments. The regulations provide in relevant part: [I]n evaluating the severity of mental imp...
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Petition for writ of certiorari to the United States Court of Appeals for the Seventh Circuit granted. Brief of petitioner to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, February 22, 2000. Brief of respondent to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Thursday, March 23, 2000. Reply brief, if any, is to be filed with ...
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201 F.3d 1136 (9th Cir. 2000) SAMMY L. PAGE, Plaintiff-Appellant,v.M. L. TORREY, Defendant-Appellee.SAMMY L. PAGE, Plaintiff-Appellant,v.M. L. TORREY; STEVE BYRD; R. MADIGAN; ROCKY SPUNGEON; LISA MORGAN; MICHELE MUDGETTI; individually and in their official capacity, Defendants-Appellees. No. 98-56526, No. 98-56591 U.S. Court of Appeals for the Ninth Circuit Submitted September 14, ...
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We affirm the district court’s dismissal because of a lack of subject matter jurisdiction. *1142 Factual and Procedural Background Edwin F. Virgin, Sr., Susan S. Virgin, and Edwin F. Virgin, Jr. own land in the County of San Luis Obispo because of federal land patents granted to their predecessors-in-interest. The Virgins appeal the district court’s dismissal for lack of subject matter jurisdict...
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91 Cal.Rptr.2d 730 (2000) 22 Cal.4th 190 990 P.2d 603 In re TAMEKA C, a Person Coming Under the Juvenile Court Law The People, Plaintiff and Respondent, v. Tameka C, Defendant and Appellant. No. S068192. Supreme Court of California. January 13, 2000. *731 Terry K. Diggs, under appointment by the Supreme Court, San Francisco, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorne...
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Opinion In this action for an accounting, the beneficiaries of a private express trust seek to compel the trustee to disclose its privileged *205communications with attorneys. We conclude the trustee may assert the attorney-client privilege against the beneficiaries. I. Facts and Procedural History William A. Couch established the Couch Living Trust in October 1991. He served as the sole trustee ...
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Opinion Penal Code section 273.5 criminalizes the willful infliction of corporal injury resulting in a traumatic condition upon a cohabitant. The issue presented in this case is whether appellant violated that statute since the victim’s injuries resulted from her attempt to escape rather than from the battery. For reasons explained in this opinion, we conclude that where, as here, the victim’s ...
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Opinion In these consolidated cases the plaintiff property owners argue the defendant city has taken their land by virtue of a series of planning decisions it made with respect to the area where the plaintiffs’ land is located. As it did in the trial court, the city contends that it has not acted upon any proposed development of the parcels in a manner which demonstrates the level of deve...
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Opinion by Judge NOONAN; Dissent by Judge DAVID R. THOMPSON. Baby Tam & Co., Inc., (Baby Tam) appeals the dissolution of the permanent injunction of the district court enjoining the City of Las Vegas (the City) from enforcing Chapter 6.06A of the Las Vegas Municipal Code against Baby Tam. We hold that Chapter 6.06A is still on its face unconstitutional. Accordingly, we reverse the judgment of the...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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*604 Opinion Plaintiffs and appellants Canal Street, Ltd., and Victor Catanzaro, individually and as general partner, appeal an order of dismissal for failing to bring their action against defendants and respondents Robert A. Sorich, William J. Sorich and Rose E. Sorich to trial within five years. (Code Civ. Proc., § 583.310.) Appellants contend a binding settlement agreement bet...
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*612 Opinion Arya Group, Inc. (Arya) appeals from the orders dismissing its action against the respondents herein, Cher, the Inshallah Trust, Janet L. Bussell, Tutt Design Group, Inc. (Tutt) and Hawthorne Savings, F.S.B., after demurrers to Arya’s second amended complaint were sustained without leave to amend. (Code Civ. Proc., § 581, subd. (f)(1).) Arya contends the trial court’...
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C. A. 7th Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62. Justice Breyer took no part in the consideration or decision of this case....
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C. A. 8th Cir. Motion of New Jersey Legislature et al. for leave to file a brief as amici curiae granted. Certiorari granted limited to Questions 1 and 2 presented by the petition. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, February 28, 2000. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on o...
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C. A. 6th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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C. A. 10th Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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C. A. 2d Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Kimel v. Florida Bd. of Regents, ante, p. 62....
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ORDER The opinion filed September 16, 1999 is hereby amended as follows: At Slip Op. 11836, headnote [13], lines 11-16 [192 F.3d at 1237], delete “Thus, the sleep disorder and sexual dysfunction merely help to establish that the impairment (panic disorder after treatment) affects a major life activity; they are not relevant to the reasonable accommodation discussion, however, which focuses on the ...
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Opinion The Department of Motor Vehicles (DMV) appeals a judgment granting Steven T. McDonald’s petition for writ of administrative mandamus and reducing his driver’s license suspension from one year to four months. The court determined that the Colorado law under which McDonald pleaded guilty for driving while ability impaired (DWAI) was not “substantially similar” to California Vehicle ...
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Opinion The People of the State of California, the Central California Tristeza Eradication Agency and the Kern County Citrus Pest Control *625 District (the People) brought an action for abatement of public nuisance against Sun Pacific Farming Co.; Wallich’s Ranch Co.; McFarland Ranch; Bob Reniers; South Star Ranch Co.; WCM Farm Co., Ltd.; The Corrotto Co., Inc.; Badger Farmi...
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delivered the opinion of the Court. In Ross v. Oklahoma, 487 U. S. 81 (1988), this Court reaffirmed that “peremptory challenges [to prospective jurors] are not of constitutional dimension,” id., at 88; rather, they are one means to achieve the constitutionally required end of an impartial jury. We address in this case a problem in federal jury selection left open in Ross. See id., at 91, n. 4. We ...
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*752 Opinion I. Introduction Appellants filed suit on behalf of a putative class of automobile insurance customers against over 70 insurers, including respondents Allstate Indemnity Company (Allstate) and Farmers Insurance Exchange (Farmers), and Charles Quackenbush in his capacity as the Insurance Commissioner of the State of California. Appellants’ complaint alleged four c...
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Opinion Lectrodryer sued SeoulBank for unjust enrichment arising from the bank’s issuance of a letter of credit. SeoulBank appeals following a *725 jury verdict against it awarding $493,000. Lectrodryer cross-appeals, alleging demurrers were improperly sustained as to causes of action for fraud and intentional interference with contractual relations. We affirm. Facts Lectrodryer, a smal...
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Opinion Defendant, Royal Porter McHenry, appeals after a jury trial from a petty theft with a prior conviction. (Pen. Code, 1 § 666.) The jury found defendant had served a prior separate prison term within the meaning of section 667.5, subdivision (b). Defendant was sentenced to four years in state prison. The court imposed: a $5,000 restitution fine pursuant to section 1202.4; a $5,000 suspe...
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Opinion By information filed in Stanislaus County Superior Court on February 19, 1997, appellant, Ralph David Borrelli, was charged with the burglary, arson, and vandalism of a dental office located at 3025 McHenry Avenue in Modesto, California in violation of Penal Code sections 459, 451, subdivision (c), and 594, subdivision (b)(2), respectively. 1 In addition, he was charged with the stalk...
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Opinion Appellant, Francisco Guzman, was convicted of driving under the influence of alcohol and causing bodily injury to another person. On *763appeal, appellant challenges the finding that he personally inflicted great bodily injury in the commission of a felony. (Pen. Code, § 12022.7.)1 This finding was based on injuries his passenger received in a collision with another vehicle. According to a...
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Opinion One March evening in 1997, Bakersfield police officers conducted a vehicle theft “sting” operation. They staged an arrest of a plainclothes police officer driving a black 1980 Chevrolet Monte Carlo that belonged to the police department. The arresting officers activated the emergency lights and siren of their marked patrol car and stopped the Monte Carlo. The Monte Carlo’s driver drove int...
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92 Cal.Rptr.2d 256 (2000) 991 P.2d 755 Marilyn MERRILL et al., Appellants, v. NAVEGAR, INC, Respondent. No. S083466. Supreme Court of California. January 19, 2000. Respondent's petition for review GRANTED. GEORGE, C.J., KENNARD, BAXTER, WERDEGAR, CHIN, and BROWN, JJ., concur. ...
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*769Opinion I. Introduction Defendant, Christopher Flynn, was sentenced to state prison following his conviction of robbery. He now argues insufficiency of evidence, improper exclusion of the victim’s prior misdemeanor conduct, and erroneous denial of a motion for new trial. The People oppose these contentions and note the absence of a mandatory parole revocation fine. We modify the judgment and ...
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Opinion Defendant and appellant Ranger Insurance Company (hereinafter Ranger) appeals from a summary judgment on bail bond forfeiture entered in favor of plaintiff and respondent County of Los Angeles (hereinafter County). Ranger contends the statutory period during which the trial court could enter summary judgment had expired, and the court acted in excess of its jurisdiction. The Penal Code re...
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Opinion The Department of Motor Vehicles (DMV) is authorized to administratively suspend a driver’s license if the individual refused to submit to chemical testing to determine blood-alcohol concentration or if the individual drove a motor vehicle with an excessive blood-alcohol concentration. Under certain circumstances, a suspension for excessive blood-alcohol concentration may be mitigated t...
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201 F.3d 1223 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.TERRILL DIXON, Defendant-Appellant. No. 98-50601 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted November 2, 1999Filed January 21, 2000 [Copyrighted Material Omitted] COUNSEL: Sonya A. Clark, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-ap...
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202 F.3d 1146 (9th Cir. 2000) DON SOON PARK, Petitioner-Appellant,v.PEOPLE OF THE STATE OF (JR) CALIFORNIA; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents-Appellees. No. 96-56750 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted October 5, 1998Opinion Filed January 14, 1999Opinion Withdrawn January 21, 2000Filed January 21, 2000 COUNSEL: Sharon M...
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Opinion Following defendant’s plea of no contest in exchange for a maximum sentence of 25 years to life, the trial court imposed the agreed maximum sentence, refusing to impose a lesser sentence by striking one or more of his prior conviction allegations. Defendant appealed, contending that the maximum sentence constitutes cruel and unusual punishment. We dismissed his appeal on account o...
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delivered the opinion of the Court. The principal issues in this case are whether Buckley v. Valeo, 424 U. S. 1 (1976) (per curiam), is authority for state limits on contributions to state political candidates and *382whether the federal limits approved in Buckley, with or without adjustment for inflation, define the scope of permissible state limitations today. We hold Buckley to be authority for...
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Ct. App. Ariz. Cer-tiorari denied....
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202 F.3d 1160 TROY A. ASHMUS, Petitioner-Appellee,v.JEANNE WOODFORD, Acting Warden of California State Prison at San Quentin, Respondent-Appellant. No. 99-99007 U.S. Court of Appeals for the Ninth Circuit Filed January 24, 2000 Thelton E. Henderson, District Judge, Presiding TROY A. ASHMUS, Petitioner-Appellee,v.JEANNE WOODFORD, Acting Warden of California State Pr...
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Rodrigo Sandoval appeals his conviction on drug and conspiracy charges, alleging that the district court erred in denying his motion to suppress evidence obtained during the search of a tent. Because we agree that the district court erred in denying Sandoval’s motion, we reverse his conviction and remand for a new trial. 2 In early 1997, state and federal officials began an investigation into...
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Opinion This case, arising out of the 1977 death penalty law, is before us for the second time. In 1980, a jury found defendant guilty of two counts of *230 robbery (Pen. Code, § 211), 1 one count of attempted murder (§§ 187, 664), and one count of first degree murder (§ 187) with the special circumstance of murder in the commission of a robbery (former § 190.2, subd. (c)(3)(i)). The jury f...
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Opinion I. Introduction After entering a judgment in favor of respondents in this construction defect dispute, the trial court granted respondents’ request for prejudgment interest, expert fees, and attorney fees. Appellant Mountain Cascade, Inc. (Mountain Cascade) contends these postjudgment awards were error, arguing: (1) the trial court should have applied recent case law retroactively to bar ...
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Opinion Alphonso Eddie Roundtree (appellant) appeals from a judgment upon a jury verdict finding him guilty of rape (Pen. Code, 1 § 261, subd. (a)(2)); unlawful sexual intercourse (§ 261.5, subd. (d)); and lewd or lascivious act on a child under the age of 14 (§ 288, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations that appellant suffered four prior prison te...
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This disability discrimination case concerns the circumstances under which equitable estoppel or equitable tolling will excuse the failure to file a timely EEOC charge. We hold that a plaintiffs reasonable reliance on fraudulent concealment is required for application of the doctrine of equitable estoppel. We also hold that equitable tolling will not excuse the untimely filing of an EEOC charge by...
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Christopher James Anderson and Carlos Anthony Miranda, inmates at Lompoc Federal Corrections Institute, were convicted of voluntary manslaughter in the stabbing death of another inmate. On appeal, they raise a number of issues, including whether it was plain error not to instruct the jury on the lesser included offense of involuntary manslaughter. We conclude that the failure to give an involun...
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202 F.3d 1093 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ESTATE PRESERVATION SERVICES, a Trust; ESTATE PRESERVATION SERVICES, INC.; ROBERT L. HENKELL, Defendants-Appellants.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ESTATE PRESERVATION SERVICES, a Trust Defendant,AndWILLIAM F. SEFTON, Defendant-Appellant. Nos. 98-17220, 98-17297 U.S. Court of Appeals for the Nin...
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*893Opinion Background of the Action Richard A. Ruiz and his wife, Frances Gantong-Ruiz (hereinafter Ruiz and Gantong, respectively), were employed by the California Department of Corrections (Department). They filed suit against the Department and the Central California Women’s Facility (CCWF) for discrimination and harassment. The trial court entered a judgment on the pleadings against Ruiz for...
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Opinion A homeowners association challenged in court the approval of a car wash project proposed by a corporation, to be located in a shopping center bordered by residential neighborhoods. The homeowners *882 association claimed the California Environmental Quality Act (CEQA) required the City of Fresno to prepare an environmental impact report (EIR) before approving the project. The trial co...
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200 F.3d 661 (9th Cir. 2000) ELIZABETH SIMEONA BURGERT, an individual, Plaintiff-Appellant,andFRANCINE DAWSON, an individual; BELINDA ANAHUEA BURGERT, an individual; SHIRLEY KALA, an individual; on behalf of themselves and all beneficiaries of the Bishop Estate, Plaintiffs,v.THE LOKELANI BERNICE PAUAHI BISHOP TRUST, a charitable trust administered under the laws of the State of Hawaii; RICHARD...
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199 F.3d 1375 (9th Cir. 2000) In Re SALE GUARANTY CORPORATION, Debtor.ALFRED H. SIEGEL, Trustee, Appellant,v.TERRY NEWMAN; JUDY NEWMAN, Appellees.In Re SALE GUARANTY CORPORATION, Debtor.ALFRED H. SIEGEL, Trustee, Appellant,v.BERNARD G. BOSTON; CAROL A. BOSTON, Appellees. In Re SALE GUARANTY CORPORATION, Debtor.ALFRED H. SIEGEL, Trustee, Appellant,v.DAVID VICTOR WARD, Appellee. No. 98-56051...
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ORDER The Supreme Court having determined that this case became moot subsequent to its grant of the writ of certiorari, the judgment of this court was vacated and the case remanded with the direction-to remand the case to the district court to *1376 dismiss the case as moot. Pursuant to the order of the Supreme Court, the judgment of this court, Weatherhead v. U.S., Dept. of Justice, 157 F....
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Opinion Petitioner Jennifer L. Haywood sought a writ directing the family court to vacate its order dismissing her marital dissolution action and directing the trial court to exercise exclusive jurisdiction over the issue of child custody. The family court subsequently vacated the dismissal order and asserted jurisdiction over child custody, but did not determine whether the orders of a M...
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Opinion Appellants Vartanush Yergan and Ardem Vartanian appeal from the trial court’s judgment in favor of respondent the Department of Real Estate (Department) on their claim for entitlement to payment under the Real Estate Recovery Program (Bus. & Prof. Code, § 10470 et seq.).1 The Department denied appellant’s claim, and the trial court concurred, on the ground that the underlying judgment obt...
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Opinion This appeal involves a common situation. A person whose car is damaged by someone else’s negligence tenders a claim to her insurance company. The company pays off, but its policy does not cover all of the damages. Hence, the policyholder files a small claims action against the tortfeasor to recover uninsured losses. After the policyholder in this case obtained a small claims ...
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92 Cal.Rptr.2d 70 (2000) 22 Cal.4th 245 991 P.2d 156 FAIRMONT INSURANCE COMPANY, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; Ken Stendell et al., Real Parties in Interest. No. S074581. Supreme Court of California. January 27, 2000. *71 Kinkle, Rodiger & Spriggs and Bruce E. Disenhouse, Riverside, for Petitioner. No appearance for Respondent. Retamal & Retamal and Se...
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Opinion American Surety Insurance Co. (Surety) appeals from the trial court’s order denying its motion to vacate forfeiture and exonerate the bail it posted for Alan Rodriguez Quintero. (Pen. Code, § 1305.) 1 The bail was forfeited when Quintero, who was deported to Mexico by federal immigration authorities, did not appear at his preliminary hearing. Surety contends the order of forfeiture sh...
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*993 Opinion The trial court sustained the demurrer of defendant Redevelopment Agency of the City of Bar stow (Redevelopment Agency) to plaintiff’s first amended complaint without leave to amend and ordered the action dismissed. Plaintiff appeals. Standard of Review “Where a trial court sustains a demurrer without leave to amend, we review such action under the abuse of...
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201 F.3d 1154 (9th Cir. 2000) STATE OF ALASKA, Plaintiff-Appellee,v.UNITED STATES OF AMERICA; BRUCE BABBITT, Secretary of the Interior; TOM ALLEN, Alaska State Director, Bureau of Land Management; ROBERT BARBEE, Field Director, Alaska FieldOffice, National Park Service, and DAVID ALLEN, Alaska Regional Director, United States Fish and Wildlife Service, Defendants-Appellants. No. 96-36041 ...
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201 F.3d 1234 (9th Cir. 2000) LOIS TAYLOR, widow of Glen Taylor, Petitioner,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, Plant Shipyard Corporation and its Insurer, Industrial Indemnity, Respondent. No. 98-71004 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted December 7, 1999Filed January 28, 2000 [Copyrighted Material Omitted] COUNSEL: Ann...
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Opinion This case involves a dispute between a church, respondent Korean Philadelphia Presbyterian Church (the Church), and the organizations above it in its religious hierarchy. We are called on to decide whether the trial court abused its discretion in granting a preliminary injunction requested by the Church which prohibits the California Presbytery (the Presbytery) and one of its employees, “...
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Opinion Here we hold that a defendant who has been denied expungement of his conviction by an amendment to the Penal Code 1 enacted after he pled guilty has not been subjected to an ex post facto law; nor does the application of the amendment violate section 3; nor has he been denied due process, equal protection or the benefit of his plea bargain. We affirm. Facts On February 26, 1993, G...
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Opinion Elias Sanchez Madrigal unsuccessfully appeals from the judgment entered after the trial court revoked probation and sentenced him to five years in state prison for selling cocaine. (Health & Saf. Code, § 11352, subd. (a).) He contends that the probation department violated his speedy trial rights because it did not locate him in federal prison and timely initiate *1052a probation revocati...
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Opinion A roofing consultant gives bad advice to a homeowners association about reroofing materials..The homeowners association sues the consultant. The consultant tenders defense under his commercial general liability policy, and the insurer refuses to defend. The consultant settles with the homeowners association and sues his insurer for breach of contract and bad faith. The court grants summar...
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Opinion The workers’ compensation system is designed to assure benefits to injured workers without the need to resort to a lawsuit. Procedural informality that would make the civil practitioner shudder is normal. But even a “flexible” system must have structure. Here, the Workers’ Compensation Appeals Board (Board) deprived a party of the benefits of a stipulation. We annul the Board’s decision...
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Opinion 1. Introduction Defendant Mark Anthony Hoover appeals from a judgment against him for enhanced aggravated assault under circumstances involving domestic *1024 violence. (Pen. Code, §§ 245, subd. (a) (1), 12022.7, subd. (d).) Defendant was sentenced to a total prison term of 21 years. The California Supreme Court granted review of the original publish...
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Opinion Following a jurisdictional hearing, the juvenile court sustained three counts of a Welfare and Institutions Code section 602 amended petition. The sustained counts included count I, assault with a deadly or dangerous weapon with force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)), with a great bodily injury enhancement; count II, battery with serious bodily injury ...
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Oregon state prisoner Clinton K. LaJoie appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for rape, sodomy, and sexual abuse of a minor child, “VN”.1 LaJoie contends that his Sixth and Fourteenth Amendment rights were violated when evidence of VN’s past sexual abuse by others was excluded, pursuant to Oregon’s rape shield law, Oregon Ev...
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We must decide whether an employer is eligible for second-injury reduction in liability for benefits payable for a worker’s permanent partial disability that may be substantially and materially greater as a result of his preexisting medical condition. I Marine Power & Equipment and Industrial Indemnity Company (“Marine Power”) hired Johnny Quan in 1978 as a ship scaler, and on June 7,...
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*672 ORDER AND OPINION ORDER The Opinion filed September 17, 1999, is withdrawn. The Petition for Rehearing and Petition for Rehearing En Banc and the Response thereto will be deemed to be addressed to the substitute opinion filed herewith. OPINION Appellant Charles Frederick Byrne (“Appellant”) appeals from the district court’s order denying his motion under Fed.R.Crim.P. 29 to dismiss...
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202 F.3d 1106 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOSE RAMIREZ-VALENCIA, a.k.a. Rodolfo Ramirez-Valencia, a.k.a. Don Enrique, a.k.a. Jose Ramiro-Ramirez, Defendant-Appellant. No. 99-50060 U.S. Court of Appeals for the Ninth Circuit Submitted November 5, 19991Decided January 31, 2000 COUNSEL: Michael J. McCabe, San Diego, California, for the def...
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92 Cal.Rptr.2d 80 (2000) 22 Cal.4th 260 991 P.2d 165 The PEOPLE, Plaintiff and Appellant, v. Daniel William HATCH, Defendant and Respondent. In re Daniel William Hatch, on Habeas Corpus. No. S074630. Supreme Court of California. January 31, 2000. *83 Gil Garcetti, District Attorney, George M. Palmer, Patrick D. Moran, Brent Riggs and Diana L. Summerhayes, Deputy District Attorneys, for Plaintiff ...
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Opinion This appeal presents the principal question of whether the due process clause entitles a public employee to a predeprivation hearing before he is demoted in lieu of layoff. We conclude that such a hearing is not required and that a postdemotion hearing is sufficient. Background On March 12, 1990, plaintiff Robert Duncan went to work for the California Department of Insurance (DOI) i...
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Opinion I. Introduction The trial court granted summary judgment in this “conclusive presumption” and “standing” paternity case even though the plaintiff had lived with the mother (a woman married to someone else), raised the child as his own for the first year of the child’s life, and continued to visit the child after he and the mother broke up. For the trial court, the facts that ...
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201 F.3d 1243 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.PEDRO PABLO CABRERA, OPINION Defendant-Appellant. No. 99-10242 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 14, 2000Filed February 1, 2000 [Copyrighted Material Omitted] COUNSEL: Clay Hernandez, (on the briefs) and Brenda DabdoubCaballero, (argued), Law...
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Jose Roman Ortega appeals his jury conviction and sentence for multiple drug— and firearm-related offenses. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM. In doing so, we find that an INS agent violated the Sixth Amendment when he obtained, outside the presence of Ortega’s counsel, Ortega’s statement regarding the firearm used during the offenses. The tainted statement, howeve...
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201 F.3d 1250 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.STACY WEISCHEDEL, OPINION Defendant-Appellant. No. 98-30324 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 16, 1999Filed February 1, 2000 [Copyrighted Material Omitted] COUNSEL: Wendy Holton, Helena, Montana, for the defendant-appellant. Bernard F...
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201 F.3d 1255 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.DARNELL HAYES, Defendant-Appellant. No. 98-50609 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed February 1, 2000 Before: HUG, Chief Judge. Prior report: 190 F.3d 939 ORDER 1 Upon the vote of a majority of nonrecused regular active judges of this court...
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201 F.3d 1256 (9th Cir. 2000) ROBERT BARNETT, Plaintiff-Appellant,v.U.S. AIR, INC.,Defendant-Appellee. No. 96-16669 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed February 1, 2000 Before: HUG, Chief Judge. Prior Report: 196 F.3d 979 ORDER 1 Upon the vote of a majority of nonrecused regular active judges of this court, it is order...
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*1228 Opinion I Introduction Code of Civil Procedure section 473, subdivision (b) 1 provides mandatory relief from default or dismissal on the basis of an attorney’s affidavit of fault “unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Italics added.) The iss...
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A witness has absolute immunity from liability for civil damages under § 1983 for giving perjured testimony at trial. See Briscoe v. LaHue, 460 U.S. 325, 326, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). In this case of first impression, we must decide whether a witness also has absolute immunity from liability for civil damages under § 1983 for conspiring to present her own and another -witness’s perjur...
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We must decide whether a party challenging an award of attorney’s fees under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (the “Act”), has a right to a hearing before the Office of the Administrative Law Judge (“OALJ”) when no factual issues are in dispute. Healy Tibbitts Builders, Inc. (“Tibbitts”) petitions for review of the order of the Benefits Revi...
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202 F.3d 1180 (9th Cir. 2000) KAREN KANE INC., Plaintiff-Appellant,v.RELIANCE INSURANCE COMPANY, a corporation, OPINION Defendant-Appellee. No. 98-55589 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 3, 1999Decided February 2, 2000 COUNSEL: Harold J. Tomin (argued), Fenigstein & Kaufman, Los Angeles, California, for the plaintiff-...
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Richard McNatt sued in federal district court to compel the Social Security Administration to grant him a benefits eligibility hearing. He now appeals the district court’s dismissal of his suit for lack of subject matter jurisdiction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. I. FACTS AND PROCEEDINGS BELOW Plaintiff-Appellant McNatt applied for and was denied Social Securi...
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James J. Slevira, a member of the International Brotherhood of Teamsters Local 190, appeals from the district court’s summary judgment in favor of Western Sugar Company (Western) and International Brotherhood of Teamsters Local No. 190 (union) in Slevira’s action alleging that Western wrongfully discharged him in violation of the collective bargaining agreement under Section 301 of the Labor Mana...
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California state prisoners Daniel Adam Wade and Paul Christopher Buckley (“petitioners”) appeal the district court’s denial of their petitions for habeas corpus, in which they challenge their convictions for multiple counts of assault upon a police officer with a firearm. Petitioners assert that the prosecutor in their joint criminal trial exercised a peremptory challenge to exclude an African-Ame...
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Opinion The City and County of San Francisco (City) brought this action against Remberto and Lourdes Sainez, the owners of multi-unit rental property at 387-391 South Van Ness Avenue, for nuisance abatement and other relief, including civil penalties for violations of the San Francisco Housing Code and San Francisco Building Code (hereafter Housing Code *1306 and Building Cod...
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*1328 Opinion I. Introduction Appellant Antoine Maurice Brown was convicted by jury of numerous offenses resulting from his violent assault on his girlfriend during a domestic dispute. 1 Brown noticed this appeal after being sentenced to 23 years in state prison as a “second strike” offender under California’s “Three Strikes” law (Pen. Code, § 667, subds. (b)...
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202 F.3d 1199 (9th Cir. 2000) GOTO.COM, INC., a Delaware corporation, Plaintiff-counter-defendant-Appellee,v.THE WALT DISNEY COMPANY, a Delaware corporation; DISNEY ENTERPRISES, INC., a Delaware corporation; INFOSEEK CORPORATION, a California corporation; MONTROSE CORPORATION, a Delaware corporation, Defendants-counter-claimants-Appellants. No. 99-56691 U.S. Court of Appeals for the Ni...
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202 F.3d 1074 (9th Cir. 2000) In re ROBERT GRUNTZ, Debtor. ROBERT GRUNTZ, Plaintiff-Appellant,v.OPINION COUNTY OF LOS ANGELES; LOS ANGELES DISTRICT ATTORNEY, Defendants-Appellees. No. 97-55379 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 6, 1998Opinion Filed February 4, 1999Amended Opinion Filed May 19, 1999Withdrawn and Rehearing En Banc Granted...
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201 F.3d 1105 (9th Cir. 2000) TEI YAN SUN; YEH HWA SUN, Individually and as Personal Representatives of Peter Sun, deceased; PHILIPE SUN, Plaintiffs-Appellants,v.TAIWAN; TAIPEI ECONOMIC AND CULTURAL REPRESENTIVE OFFICE IN THE U.S.; CHINA YOUTH CORPS; OVERSEAS CHINESE AFFAIRS COMMISSION, Defendants-Appellees. No. 98-17166 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued ...
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Kerry Stephen Hebert appeals the district court’s denial of his motion to suppress evidence presented at his supervised release revocation hearing. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I. FACTS AND PROCEDURAL HISTORY In 1989, Hebert pled guilty to federal armed bank robbery and state armed robbery charges. In 1995, he was released from prison and began serving simultane...
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Heather Ladon Olafson (“Olafson”) appeals her conviction for transporting illegal aliens in violation of 8 U.S.C. § 1324. Olafson entered a conditional guilty plea to the charge, which preserved her right to appeal the district court’s denial of a motion to suppress, as well as its decision to admit hearsay statements from two material witnesses instead of ordering the government to take their de...
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This is a copyright case involving a claim of coauthorship of the movie Malcolm X. We reject the “joint work” claim but remand for further proceedings on a quantum meruit claim. I. FACTS In 1991, Warner Brothers contracted with Spike Lee and his production companies to make the movie Malcolm X, to.be based on the book, The Autobiography of Malcolm X. Lee co-wrote the screenplay, directed, and co-p...
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The United States Government appeals a judgment entered against the Department of Interior and the Bureau of Reclamation that requires the Department to “take such reasonable and necessary actions to promptly prepare, file and pursue an application for a discharge permit” with the California Water Resources Control Board, pursuant to the Government’s duty to provide drainage under the San Luis Act...
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Insurance Company of North America (INA), in its effort to recover for the loss of $257,285.34 in stolen golf balls, appeals the district court’s summary judgment order limiting the liability of NNR Aircargo Service (NNR) to $50. INA makes five arguments: (1) invoices are not contracts and there was no course of dealing sufficient to infer the parties’ common understanding of the agreement; (2)...
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202 F.3d 1110 (9th Cir. 2000) FRANCO LOPEZ, a/k/a Eduardo T. Hernandez, Petitioner-Appellant,v.S. FRANK THOMPSON, OPINION Respondent-Appellee. No. 97-35837 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 16, 1998Filed April 27, 1999Rehearing En Banc Granted and Opinion Withdrawn September 20, 1999Argued and Submitted November 18, 1999Filed Februa...
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ORDER The parties have notified the court that the matter has been settled. In light of the settlement, Petitioner’s motion to withdraw the petition for rehearing and peti *1223 tion for rehearing en banc is GRANTED. The appeal is dismissed as MOOT. Our prior opinion, reported at 192 F.3d 917, is hereby VACATED. ...
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OPINION In an adversary proceeding, the debtor sought a declaration that his prepetition taxes owed to the California Franchise Tax Board (“FTB”) had been discharged fol*743lowing the completion of his chapter 131 plan. The debtor also sought to enjoin the FTB’s executive director, Gerald Goldberg, from taking any action, or causing the FTB to take any action, to collect the allegedly discharge...
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OPINION Prior to bankruptcy, Appellee George Jercich (“Debtor”) employed Appellant James A. Petralia (“Creditor”) and failed to pay him all his wages. As a consequence, Creditor obtained a state court judgment against Debtor that determined, inter alia, that Debtor committed a tor-tious breach of the contractual covenant of good faith and fair dealing with respect to Creditor. ...
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*1446 Opinion Insureds, facing suit for malicious prosecution, turned to their insurer for a defense, having years before instructed the insurer’s agent to duplicate the. coverage of a policy containing that protection. When the defense was denied, because the coverage was not in the policy that was issued and later renewed, the insureds sued. Insureds produced evidence that the ...
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A-l Ambulance Service, Inc. (“A-l”) appeals the district court’s dismissal of its qui tam action against the County of San Mateo, the County of Monterey, and two private ambulance companies for alleged violations of the False Claims Act, 31 U.S.C. §§ 3729-3733. The district court dismissed A-l’s action for lack of subject matter jurisdiction under the “public disclosure bar” of 31 U.S.C. § 3730(e)...
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Plaintiffs Hein and other members of the Splinter Group of the Capitan Grande Band of Diegueno Mission Indians (hereinafter “plaintiffs”) appeal from the district court’s decision granting defendant the Ba-rona Group’s motion to dismiss on the basis of lack of subject matter jurisdiction and tribal sovereign immunity. We agree with the district court that it lacked subject matter jurisdiction over...
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The issue, before us involves appellate jurisdiction over an interlocutory appeal in a criminal case. We dismiss the appeal for lack of jurisdiction. Facts The case arises out of the bonding business in the construction industry. In private construction, obligations to laborers and material men are secured by mechanics lien laws, giving them liens against the real estate they impr...
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201 F.3d 1262 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.DAVID W. TRENTER, Defendant-Appellant. No. 99-30226 U.S. Court of Appeals for the Ninth Circuit Submitted January 18, 20001Filed February 7, 2000 COUNSEL: James L. Vonash, Seattle, Washington, for the defendant-appellant. Lawrence R. Lincoln, Assistant United States Attorney, Seattle, Wash...
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Opinion Labor Code section 4558 (section 4558) provides an exception to the exclusivity of the workers’ compensation system for workers injured as a result of the employer’s knowingly having removed or failed to install a point of operation guard on a “power press,” defined in subdivision (a)(4) of the statute as “any material-forming machine that utilizes a die which is designed for use in the m...
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Concurring and Dissenting.—This opinion addresses an application for relief from default for failure to obtain a Penal Code section 1237.5 (hereafter section 1237.5) certificate of probable cause. I agree with the majority that a section 1237.5 certificate is required for appellate review of the issue appellant seeks to raise—the trial court’s denial of his motion to dismiss a prior conviction all...
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Opinion This is an action for medical malpractice, brought on behalf of Mateen Mossanen, a minor. The minor’s mother, Elizabeth Mossanen, acted as his guardian ad litem, and also sued in her individual capacity. The trial court granted a motion to withdraw by counsel for plaintiffs. While plaintiffs were attempting to retain new counsel, the defendants, Amir H. Monfared and his medical corporat...
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Opinion Michelle Y. Maides and Scott D. Maides appeal a summary judgment in favor of Ralphs Grocery Company. As a matter of first impression in this case where the Maideses filed a notice of intent to move to vacate before judgment was entered, we hold the 60-day period within which an appeal must ordinarily be brought (Cal. Rules of Court, 2 rule 2(a)) cannot be sho...
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Federal prisoner Anselmo Bernal Hernandez appeals the order of the District Court for the Central District of California (“Central District” or “sentencing court”) denying his habeas corpus petition. Because the Central District failed to determine whether it had jurisdiction, we vacate its order dismissing the petition. We also remand with instructions for the Central District to determine whethe...
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This case is about an agreement between a corporation, having retailers as both members and customers, and a magazine publisher. We must decide whether one of the terms of this agreement, a restriction against carrying mail order advertising, can be found to be a per se violation of the antitrust laws. Plaintiff Nova Designs, Inc. (doing business as Performance) sells scuba equipment and related i...
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Opinion In this action against defendants and respondents Home Savings of America F.S.B. (Home) and Serrano Reconveyance Company (Serrano), the plaintiff and appellant, Sam Ostayan, seeks reversal of a summary judgment entered against him on his seven-count first amended complaint. Claiming that he had been misled into purchasing a parcel of income property at a trust deed foreclosure sal...
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Opinion Plaintiff, a trespasser, drives his all-terrain vehicle (ATV) on private property owned by defendants. His vehicle collides with one driven by defendants’ employee. Plaintiff’s cause of action against defendants alleges, among other things, negligent operation of a motor vehicle and premises liability. Here we conclude that the immunity provisions of Civil Code section 846 apply to defend...
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201 F.3d 1120 (9th Cir. 2000) ALEXIS BLACK, Plaintiff, and BRIAN MICHAELS; BARRY ADAMS, Plaintiffs-Appellants,v.RUSSEL ARTHUR, an individual and in his official capacity as Special Agent Law Enforcement Officer of the Forest Service of the United States Department of Agriculture; JOHN CARPENTER, an individual and in his official capacity as Special Agent Law Enforcement Officer of the Forest S...
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Charles R. McDaniel, a participant of the Chevron Corporation Retirement Plan, and a class of similarly situated plaintiffs (collectively, the “class”) appeal from the district court’s final order granting summary judgment in favor of the Chevron Corporation (“Chevron”), the Chevron Corporation Retirement Plan (the “Chevron Plan”), and the Chevron Corporation Retirement Plan Administrator (the “Pl...
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Michael Christopher Osborn (“Osborn”) appeals from the denial of his motion to suppress the evidence seized from his person following his arrest for failing, as a convicted person, to notify the police within 48 hours of his change of address. Osborn contends that the arresting officers did not have reasonable cause to detain him prior to questioning him' about his prior contacts with the Las V...
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Opinion This is an appeal from a judgment for the defendants in an action for forcible entry and detainer filed by tenants who were evicted under an invalid writ of possession. We affirm. Procedural History The complaint for forcible entry and detainer was filed on December 23, 1996, by the tenants of commercial property, Bruce Glass, Christine Glass, *47and Sue Craik (the Glasses), against defend...
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Opinion Appellants contend the trial court improperly granted summary judgment on their claims against the State Bar of California (the State Bar), challenging the constitutionality of the State Bar’s mandatory continuing legal education (MCLE) program. We must affirm the trial court’s ruling, under the compulsion of the recent majority opinion of the California Supreme Court in Warden v. Stat...
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*30 Opinion In this case, we are asked to decide whether the Supreme Court’s decision in County of Santa Clara v. Perry (1998) 18 Cal.4th 435 [75 Cal.Rptr.2d 738, 956 P.2d 1191] limits retroactivity of all child support orders, including those brought pursuant to Welfare and Institutions Code former section 11350, now Family Code section 17402, 1 ...
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Opinion Appellant, Sharyn Renna, was hired as a board member assistant to Fresno County Supervisor Stan Oken in July of 1992. Appellant was terminated from that position on December 1, 1996. After her termination, appellant filed a complaint against the County of Fresno (hereinafter County) claiming that the County had failed to pay her for approximately 8,344 hours of overtime during her four ...
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203 F.3d 580 (9th Cir. 2000) STEVE GARVEY, Petitioner-Appellant,v.THOMAS T. ROBERTS, Arbitrator; MAJOR LEAGUE BASEBALL PLAYERS OPINION ASSOCIATION,Respondents-Appellees. No. 98-55263 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 14, 1999Filed February 10, 2000 1 [Copyrighted Material Omitted] 2 COUNSEL: Ne...
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Opinion by Judge MICHAEL DALY HAWKINS; Concurrence by Judge RYMER; Dissent by Judge SNEED. The Prison Litigation Reform Act of 1995 (“PLRA”) provides that a district court “shall dismiss” an in forma pauperis complaint “if the court determines that ... the action or appeal ... fails to state a claim on which relief may be granted.” Pub.L. No. 104-134, § 804(a)(5), 110 Stat. 1321, 1321-74 (1996), ...
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202 F.3d 1246 (9th Cir. 2000) REYNOLDS METALS CO., Plaintiff-Appellant,v.ROBERT ELLIS, OPINION Defendant-Appellee. No. 98-55096 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 1999Decided February 10, 2000 COUNSEL: Edward A. Scallet, LeBoeuf, Lamb, Green & MacRae, Washington, D.C., for the plaintiff-appellant. James B. Kr...
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203 F.3d 596 (9th Cir. 2000) SONY COMPUTER ENTERTAINMENT, INC., a Japanese corporation; SONY COMPUTER ENTERTAINMENT AMERICA, INC., a Delaware corporation, Plaintiffs-Appellees,v.CONNECTIX CORPORATION, a California corporation, Defendant-Appellant. No. 99-15852 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted September 14, 1999Filed February 10, 2000 [Copy...
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A federal grand jury indicted Jon William Guess (“Appellant”) on July 2, 1992, and charged him with attempting to manufacture methamphetamine (“Count One”), maintaining a place for the manufacture of methamphetamine (“Count Two”), and using and carrying a firearm in relation to a drug offense (“Count Three”). 21 U.S.C. §§ 846, 841(a)(1), 856, and 18 U.S.C. § 924(c)(1). Pursuant to a plea agreement...
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Opinion Camille Bengal, Connie Ebey, Mary Ann Suerth and Jeannie McKenzie sued their former employer, Canfield & Associates, Inc., alleging their employment was terminated based upon their age in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.). The jury found that Canfield had terminated all four plaintiffs based upon their age, but the court granted C...
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*55Opinion Defendant United States Fire Insurance Company appeals from the judgment entered in a declaratory relief action ordering it to indemnify its insured, plaintiff The Vons Companies, Inc. For the reasons set forth below, we affirm the judgment. Facts and Procedural History1 On April 20, 1992, Danny McKeman was seriously injured after he was struck by a pallet jack being operated by an emp...
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203 F.3d 614 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.PEDRO HERNANDEZ, aka Hernandez Jose Gregorio Ventura; aka Jose Gregorio Ventur Hernandez; aka Francisco Huerrera; aka Antonio Hernandez; aka Jose Delgado; aka Pedro Avalos; aka Miguel Ibarra, Defendant-Appellant. No. 98-50206 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 7,...
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Opinion La Tanya Brown (plaintiff) allegedly was injured when she slipped and fell down three stairs on premises owned by Maurice and Rosemary Williams (defendants). Plaintiff filed suit against defendants, and was awarded nothing by the judicial arbitrator, then failed to timely request a trial de novo. Thus, the arbitration award became final. *184 Plaintiff sought relief ...
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Opinion Robin W. (appellant), the mother of Levi U. (the minor), appeals from orders of the juvenile court adjudging the minor a dependent child of the court and denying her reunification services. (Welf. & Inst. Code, §§ 360, subd. (d), 395; further undesignated statutory references are to the Welfare and Institutions Code.) Appellant contends the Butte County Children’s Services Division (CSD) ...
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This is an appeal from a district court judgment reviewing a decision of the California Public Utilities Commission (CPUC) under the Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56 (the Act). The Act calls for judicial review by federal courts of state utility commission decisions approving interconnection agreements between competing local telecommunication carriers who must share...
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This is a bankruptcy case. The issue is whether an IRA is exempt from inclusion in the bankruptcy estate, so that it is shielded from creditors. FACTS Mr. and Mrs. McKown filed a chapter 7 petition for bankruptcy. They claimed an exemption of an Individual Retirement Account (IRA) worth $6,413.14. They prevailed in the bankruptcy court and before the bankruptcy appeals panel. The ...
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203 F.3d 627 (9th Cir. 2000) PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees,v.HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants,AndU.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellant.PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees,v.HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants-Appellants,AndU.S. DEPARTMENT ...
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203 F.3d 1150 (9th Cir. 2000) JAMES R. LINDSEY; SUN CHA LINDSEY, and their marital community, Plaintiffs-Appellants,MBA, INC., a Washington corporation; F I T S, LLC, a Washington limited liability corporation; SAN JUNG CORPORATION, a Washington corporation, Plaintiffs,v.TACOMA-PIERCE COUNTY HEALTH DEPARTMENT, a combined City County Health Department; its ORDER Board of Health; TACOMA-PIERCE C...
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This case requires us to decide the breadth of the term “labor dispute” as defined by the Norris-LaGuardia Act, 29 U.S.C. § 101 et seq. The union in this case threatened to picket a railroad unless the railroad agreed to subcontract work only to subcontractors who employ the union’s members. We must decide whether the union and the railroad were engaged in a labor dispute. The district court decid...
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Opinion by Judge ALARCON; Dissent by Judge SCHROEDER. Irene Flick (“Flick”) appeals from the order granting summary judgment in favor of the Liberty Mutual Fire Insurance Company (“Liberty Mutual”). Flick filed a civil complaint seeking damages resulting from Liberty Mutual’s denial of a claim under a standard flood insurance policy that was underwritten by Liberty Mutual as part of the National ...
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Opinion Plaintiffs in the underlying action seek damages for injuries resulting from their false arrest, false imprisonment and violation of their federal civil rights by defendants, the County of Los Angeles and individual county employees. In a pretrial order, the trial court ruled that under their state law causes of action plaintiffs can only recover damages for the period between their arr...
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Opinion by Judge SCHROEDER; Dissent by Judge B. FLETCHER. The dispositive issue is whether a public employee can maintain a claim that her employer wrongfully retaliated against her for the exercise of First Amendment rights to free speech when she denies having made the speech in question. We conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she can...
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*245 Opinion I. Introduction Defendant Jose Guadalupe Diaz was convicted by jury of sexually assaulting and attempting to rob a woman he accosted on the street and forced into a nearby park. His 80-year-to-life state prison sentence resulted from the combined effect of the so-called three strikes and one strike sentencing statutes. We remand for resentencing and otherwise af...
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Opinion Norman Hall was convicted of one count of first degree murder with a finding of special circumstances and sentenced to a term of *234 life without the possibility of parole. He appeals, arguing prejudicial delay in prosecution, prosecutorial misconduct, the admission of an involuntary confession, improper restriction on defense evidence and failure to allow a statement of reasons for ...
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Opinion Anthony D. appeals from juvenile court findings and orders denying him reunification services with his three-year-old daughter, Axsana S., pursuant to Welfare and Institutions Code section 361.5, subdivision (a).1 Appellant was incarcerated throughout the dependency proceedings. At the time the challenged dispositional orders were made, he was being held in the Los Angeles County jail awa...
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Opinion Anna S. appeals from the order terminating her parental rights to her sons Phillip F. (born Jan. 5, 1992) and George F. (born Jan. 19, 1993).1 (Welf. & Inst. Code,2 § 366.26.) The novel issue presented is whether a parent who is represented by counsel and fails to appear at the properly noticed section 366.26 hearing must be renoticed of the continued hearing date pursuant to section 366....
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Today we hold that when a district court remands a disability benefits case to the Social Security Administration pursuant to sentence four of 42 U.S.C. § 405(g), its decisión whether such a remand is for further proceedings or for an immediate payment of benefits is reviewable for abuse of discretion rather than de novo. Applying that standard to the facts presented by this appeal, we conclude th...
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92 Cal. Rptr. 2d 641 (2000) 992 P.2d 569 22 Cal. 4th 290 The PEOPLE, Plaintiff and Respondent, v. George R. HESTER, Defendant and Appellant. In re George R. Hester on Habeas Corpus. No. S077187. Supreme Court of California. February 17, 2000. Rehearing Denied April 12, 2000. *643 Dallas Sacher, under appointment by the Supreme Court, Santa Clara, for Defendant and Appellant. Daniel E. Lungren and...
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*277Opinion By information filed in Kings County Superior Court, appellant Cicely Keshawn Reed and her codefendant Adam G. Tapia were jointly charged with the first degree robbery of Georgina Johnson in an inhabited dwelling house (Pen. Code, § 211); the assault with a semiautomatic firearm of Willie Wills (Pen. Code, § 245, subd. (b)); the assault with a firearm of Georgina Johnson (Pen. Code, § ...
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Lavern Hankey appeals his conviction and sentence for distributing and conspiring to possess with intent to distribute phencylidine (“PCP”). At trial, after Han-key’s co-defendant testified that Hankey was not involved in the transactions, the district court admitted rebuttal testimony from a police gang expert that gang members who testify against one of their own are customarily beaten or kil...
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Opinion In this appeal we hold that grossly negligent discharge of a firearm in violation of Penal Code section 246.3 is an offense “inherently dangerous to human life” which will support a conviction of second degree felony murder. I. On May 18, 1997, appellant James Clem fired a rifle out of the window of his second story apartment, and the bullet struck and killed a man standing in the street ...
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Opinion Thuan Tan Tran pleaded guilty to three counts of grand theft (Pen. Code, § 487) in exchange for the prosecutor’s dismissal of two *385other pending cases and the court’s dismissal of an “out on bail” enhancement under section 12022.1.1 The court sentenced Tran to the aggravated sentence on each count for a total term of four years and four months, suspended imposition of sentence, and plac...
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*378Opinion Steven H., the father, has appealed from an order terminating parental rights to the minors, Rashad and Brandon H., pursuant to Welfare and Institutions Code section 366.26. Counsel for the father and the Los Angeles County Department of Children and Family Services (the department) have stipulated that the Welfare and Institutions Code section 366.26 parental termination rights order...
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Opinion In Fleet v. CBS, Inc. (1996) 50 Cal.App.4th 1911 [58 Cal.Rptr.2d 645], the appellate court held that unpaid film actors’ claims for misappropriation of name, photograph, or likeness under section 3344 of the Civil Code 1 were preempted by federal copyright law, where the only misappropriation alleged was the film’s authorized distribution by the exclusive distrib...
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*357Opinion A judgment debtor with an equitable right to an offset calculated the amount due under the judgment by subtracting the offset from the principal amount of the judgment, then using the remainder to calculate postjudgment interest due as of the date of payment. The judgment creditor objected, contending the postjudgment interest should have been calculated before the judgment debtor cre...
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delivered the opinion of the Court. A State may tax a proportionate share of the income of a nondomiciliary corporation that carries out a particular business both inside and outside that State. Allied-Signal, Inc. v. Director, Div. of Taxation, 504 U. S. 768, 772 (1992). The State, however, may not tax income received by a corporation from an “ ‘ “unrelated business ...
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C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Nixon v. Shrink Missouri Government PAC, ante, p. 377....
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C. A. 7th Cir. Certiorari granted....
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C. A. 6th Cir. Motion of Memphis University School et al. for leave to file a brief as amici curiae granted. Motion of petitioner for summary reversal denied. Certiorari granted....
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Opinion Milton Lorig and Michael Burton are physicians licensed by respondent Medical Board of California (the Board). Lorig and Burton are also members of the Union of American Physicians and Dentists (the Union), which is the recognized bargaining representative for approximately 2,000 physicians and dentists employed by the State of California and nine political subdivisions. Lorig, Bu...
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528 U.S. 562 (2000) VILLAGE OF WILLOWBROOK et al. v. OLECH No. 98-1288. United States Supreme Court. Argued January 10, 2000. Decided February 23, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT James L. DeAno argued the cause and filed briefs for petitioners. *563 Irving L. Gornstein argued the cause for the United States as amicus curiae. With him on the brief wer...
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Appellant Hydranautics appeals the judgment dismissing its malicious prosecution action against FilmTec Corporation (“FilmTec”) entered by the district court after it granted summary judgment in favor of FilmTec on collateral estoppel grounds. We reverse and remand for further proceedings. I. BACKGROUND A. Factual Background John E. Cadotte and three others founded FilmTec Corpor...
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204 F.3d 888 (9th Cir. 2000) In re: ARTISAN WOODWORKERS, Debtor.JOHN C. WARD, d/b/a ARTISAN WOODWORKERS, Appellant,v.BOARD OF EQUALIZATION OF CALIFORNIA, Appellee.In re: RUDY BOSSERT, Debtor.RUDY BOSSERT, Plaintiff-Appellee,v.UNITED STATES OF AMERICA, INTERNAL REVENUE SERVICE, Defendants-Appellants. Nos. 98-17319, 99-35349. UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submi...
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204 F.3d 867 (9th Cir. 2000) PRUDENTIAL REAL ESTATE AFFILIATES, INC., Plaintiff-Appellee,v.PPR REALTY, INC., Defendant,RONALD CROUSHORE and HELEN SOSSO, Defendants-Appellees,and KATHY MCKENNA, Defendant-Appellant.PRUDENTIAL REAL ESTATE AFFILIATES, INC., Plaintiff-counter-defendant-Appellee,v.PPR REALTY, INC.; RONALD CROUSHORE; HELEN SOSSO, Defendants-cross-defendants,and KATHY MCKENNA, Defenda...
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Order; Dissent by ORDER In G & G Fire Sprinklers, Inc. v. Bradshaw, 156 F.3d 893 (9th Cir.1998), we held that California Labor Code provisions authorizing the state to seize money and impose penalties for a subcontractor’s failure to comply with prevailing wage requirements violated the Due Process Clause of the Fourteenth Amendment. See id. at 904. The Supreme Court granted certiorari, vacated o...
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OPINION In May 1997, Zachary Kilpatrick obtained a state court default judgment (the “Judgment”) against Billy Baldwin (“Debt- or”) and three other defendants for assault and battery. After Debtor filed a chapter 7 1 bankruptcy petition, Kilpatrick filed a complaint (the “Complaint”) to determine the Judgment nondischargeable under § 523(a)(6). Kilpatrick filed a motion for summary judgme...
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Opinion After his motion to suppress evidence was denied, defendant Howard Douglas Allen pleaded no contest to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted a prior serious felony conviction. (Pen. Code, § 667, subds. (b)-(i).) He was sentenced to state prison for 32 months and now appeals, claiming the court erred in denying his motion to suppress the warrantle...
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Opinion In these original proceedings, we consider a significant issue of criminal procedure: to what extent may an indicted defendant obtain discovery of nontestimonial grand jury proceedings for the purpose of preparing a Penal Code section 995 motion to dismiss the indictment on grounds of lack of probable cause?1 Our Supreme Court has recognized that the grand jury’s ability to consider the e...
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Defendants Joan Gallo (“Gallo”), George Rios (“Rios”), and Ralph Greene (“Greene”) (collectively, “the individual defendants”) appeal from the denial of their motion for a summary judgment on the basis of qualified immunity in David Hus-key’s (“Huskey”) 42 U.S.C. § 1983 action against them and the City of San Jose (“City”). We have jurisdiction over the interlocutory appeal filed by the individ...
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Petitioner Anthony Lewis Whalem/Hunt is currently serving a life sentence with the possibility of parole after being convicted by a California state court of carjacking, kidnapping, and kidnapping for carjacking. In October 1998, Wha-lem/Hunt petitioned a federal district court for a writ of habeas corpus under 28 U.S.C. § 2254. He appeals from the district court’s dismissal of his habeas corpus ...
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92 Cal. Rptr. 2d 734 (2000) 22 Cal. 4th 304 992 P.2d 1102 The PEOPLE, Plaintiff and Respondent, v. Arthur K. SNYDER et al., Defendants and Appellants. No. S073982. Supreme Court of California. February 24, 2000. *735 Law Offices of Dennis A. Fischer, Dennis A. Fischer, Santa Monica; Geragos & Geragos and Mark J. Geragos, Los Angeles, for Defendants and Appellants. Daniel E. Lungren and Bill L...
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92 Cal. Rptr. 2d 741 (2000) 22 Cal. 4th 300 992 P.2d 1109 The PEOPLE, Plaintiff and Respondent, v. Eldon Dee TILLMAN, Defendant and Appellant. No. S077360. Supreme Court of California. February 24, 2000. *742 Suzan E. Hier and Richard Lennon, Los Angeles, under appointments by the Supreme Court, and Leonard J. Klaif, Ojai, under appointment by the Court of Appeal, for Defendant and Appellant. Dan...
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Opinion Here we conclude that Evidence Code section 11081 does not allow a psychiatrist called as an expert witness to render an opinion about the accused’s sexual proclivities during the prosecution’s case-in-chief. Section 1108 permits the prosecution to prove a defendant’s sexual propensity through evidence of specific instances of conduct. It does not alter section 1102’s rule that opinion evi...
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Opinion An employee of a civilian contractor operating on a federal military enclave brought a lawsuit for wrongful termination. We conclude *477 that all but one of his state law claims are barred by article I, section 8, clause 17 of the United States Constitution. Facts and Procedural Background Respondent Lockheed Martin Corporation (Lockheed) is a civilian cont...
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*510Opinion Introduction The Workers’ Compensation Appeals Board (WCAB) determined a golf caddie to be an independent contractor rather than an employee when injured. We find that the facts established an employment relationship, considering the goals and purposes of the Workers’ Compensation Act (Act), and annul and remand the decision for further proceedings consistent with this opinion. Factua...
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204 F.3d 947 (9th Cir. 2000) JOHN LOUIS LALONDE, Plaintiff-Appellant,v.COUNTY OF RIVERSIDE, ROBERT MOQUIN, and JASON HORTON, OPINION Defendants-Appellees. No. 98-55887 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 1, 1999Filed February 25, 2000 [Copyrighted Material Omitted][Copyrighted Material Omitted] COUNSEL: Michael R. Mitc...
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John J. Murphey is a lawyer, a sole practitioner specializing in patents, copyrights, and trademarks. Murphey received an unsolicited facsimile transmission advertising computer systems during business hours on September 29,1997. Two days later, on October 1,1997, Mur-phey filed a complaint in federal district court against Warren Lanier and his employer, RJD Enterprises (“RJD”), a compute...
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Opinion Petitioner Glen C„ the father of G. C., B. H. and G. H., seeks review by extraordinary writ of orders of the juvenile court terminating reunification services and setting a permanency planning hearing (Welf. & Inst. Code, 1 § 366.26) for February 28, 2000. 2 Although his bare-bones petition, unaccompanied by points and authorities, does not elaborate on his a...
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Opinion The defendant Steven Issod, was sued by the Mike Davidov Company, which is owned by Mike Davidov (plaintiff), for fraud and breach of contract after defendant failed to return a diamond to plaintiff. Following a bench trial, the court ruled in favor of plaintiff, and awarded him $20,301 in compensatory damages on the fraud cause of action, and $96,000 in punitive damages. We concl...
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Opinion I. Procedural History Defendant Gregory Gadlin was sentenced to 35 years to life in state prison following conviction by jury of attacking his live-in girlfriend with a knife, in violation of Penal Code section 245, subdivision (a)(1). The same jury sustained allegations of two prior felony convictions, charged as both strike priors (Pen. Code, § 667, subds. (b)-(i)) and serious felon...
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C. A. 11th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of Roe v. Flores-Ortega, ante, p. 470....
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An Indian tribal court convicted Michael Enas, a non-member Indian, on two charges of assault. When the government of the United States subsequently indicted Enas for the same crimes, the district court dismissed the indictment holding that the second prosecution would violate the Fifth Amendment’s prohibition against double jeopardy. The government appeals. The outcome of this case depends on ...
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Opinion The sole issue before this court is the proper method to use for calculating petitioner applicant Ngoc Hai Thi Pham’s “average weekly earnings” pursuant to Labor Code section 4453 in order to determine her correct rate of weekly temporary total disability indemnity payments under section 4653.1 We conclude that the Workers’ Compensation Appeals Board (Board) has improperly utilized subdivi...
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Opinion A defendant was found to be incompetent five months after his preliminary hearing, and criminal proceedings were suspended. After his competence was restored, he made a nonstatutory motion to dismiss the case. He argued that he had been incompetent at the time of the preliminary hearing, which rendered his commitment unlawful. The trial court granted his motion. We affirm. Facts A p...
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Opinion Tri-West Insurance Services, Inc. (Tri-West), an insurance broker, appeals from the dismissal of its cross-complaint against Seguros Monterrey Aetna, S.A. (SMA), a Mexican insurance company, in *675litigation instigated by a Tri-West client, Swat-Fame, Inc. (Swat-Fame). We agree with the trial court that SMA did not have the requisite minimum contacts with this state for the assertion of ...
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Opinion Jeen Young Han, Archie Bryant, and John Sayarath were convicted of conspiracy to murder Jeen Han’s twin sister, Sunny Han, and other related crimes. 1 In this appeal both Jeen and Bryant attack the sufficiency of the evidence and claim error in the refusal to allow discovery of Sunny’s medical records. Separately they raise other points. Only one issue has merit; the court erred in ru...
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Opinion Defendant Centex Homes appeals from a judgment in favor of plaintiffs Jeffrey N. and Linda Stearman in a strict liability action arising out of defendant’s defective construction of the foundation of plaintiffs’ tract home, resulting in severe slab movement and deformation. The defects caused extensive cracks throughout the interior and exterior surfaces of the home. The issue is not whet...
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Opinion Plaintiffs suffered injuries in the crash of a light aircraft, allegedly due to a malfunction in the engine’s carburetor. Defendant is an aircraft parts manufacturer who did not manufacture or sell this particular model of carburetor but acquired the product line from a predecessor who had acquired it from the original manufacturer. The carburetor was manufactured and sold in 1968...
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Robert Mitchell, a Washington state prison guard, appeals the district court’s denial of his motion for summary judgment in a case in which a male-to-female transsexual prisoner, Douglas (“Crystal”) Schwenk, sought damages as a result of Mitchell’s alleged attempt to rape her. 1 Following the alleged assault, Schwenk sued various prison officials including Mitchell both under Section...
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Opinion Michael Schmier (appellant) appeals the dismissal of his complaint for injunctive relief and writ of mandate after the demurrer of *706 respondents, the Supreme Court of California, the Court of Appeal of California and the Judicial Council of California, was sustained without leave to amend. Appellant seeks to enjoin respondents from enforcing the rules governing pub...
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Opinion The modern health or fitness club is a place where a person can attain physical health and fitness. It is also a place where a person can get hurt. For this reason, most, if not all, health clubs require patrons to assume the risk of physical injury associated with body building and aerobic conditioning. As we shall explain, here the waiver and release of liability operates as an effective...
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Opinion This matter concerns appeals and cross-appeals from the judgment in an action to declare a public easement for use of a road along the side of an irrigation canal. Defendants Jon and Robin Blasius (collectively the Landowners) appeal from a judgment which declares and enjoins interference with a public easement for a right-of-way and recreation along the portion of their prop...
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*781 Opinion Defendant Harvey Mack Leonard appeals from an order committing him to Atascadero State Hospital after a jury found true the allegation he is a sexually violent predator within the meaning of Welfare and Institutions Code sections 6600-6609.3, the Sexually Violent Predators Act (the SVPA). 1 Defendant raises a broad constitutional challenge to the SVPA, c...
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Opinion After a jury trial, defendant Ricky Mendoza was convicted of one count of first degree murder (Pen. Code,1 § 187). The jury also made a true finding on the allegation that defendant had used a deadly weapon in the commission of the murder. Defendant also admitted five prior convictions. Pursuant to section 667, subdivisions (b) through (i) (hereafter, the three strikes law), defendant was...
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This appeal requires us to decide, inter alia, whether the Department of Treasury has the authority to impose tax penalties as a result of prohibited transactions with a qualified pension plan when the Department of Labor has entered into a consent judgment concerning the plan. We conclude that, under the circumstances presented in this case, the Department of Treasury possesses such...
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This appeal presents the question of whether the tax court correctly decided Krause v. Commissioner, 99 T.C. 132, 1992 WL 178601 (1992), a test case involving numerous limited partnerships formed to invest in enhanced oil recovery technology. The Tenth Circuit affirmed Krause in Hildebrand v. Commissioner, 28 F.3d 1024 (10th Cir.1994). We agree with the Tenth Ci...
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204 F.3d 1221 (9th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,V.RONALD "BOO" COLVIN, DEFENDANT-APPELLANT. No. 99-35269 U.S. Court of Appeals, Ninth Circuit Argued and Submitted November 3, 1999Filed March 01, 2000 Allison Mendel, Mendel & Associates, Anchorage, Alaska, for the defendant-appellant. Stephan A. Collins, Assistant United States Attorne...
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Bobby Welch and his wife Kathleen Newman appeal the tax court’s judgment upholding the assessment of federal income tax deficiencies by the Commissioner of Internal Revenue (“Commissioner”). We have jurisdiction under 26 U.S.C. § 7482, and we affirm. I On August 16, 1995, the Commissioner sent Welch and his wife a statutory notice of deficiency determining deficiencies in their federa...
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Opinion We hold that the demurrer of Ralph Rodriguez Diaz, Gabriel Eudalgo Lara, and Robert Wayne Everton to the complaint of Genoveva Anaya and Alfredo Vides should have been overruled. Anaya and Vides allege that their 11-year-old daughter, Norma Vides, was with them when their car collided with a Los Angeles city trash truck that was stopped in the number 2 lane of a road. Injured...
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Opinion John George, James F. George IV, and Mary George (the Georges) appeal from the summary judgment entered in favor of respondents County of San Luis Obispo, and Sheriff’s Deputies Gary Anderson and Ben Hall (Sheriff). The Sheriff evicted the Georges from property leased to family members James George III and Margie George pursuant to an order and writ of possession issued by the federal ban...
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Opinion Appellants Richard Wagner, trustee of the Romaric Trust, and Robert Wagner, trustee of the Wagner Family Trust (appellants) appeal from a judgment entered after the trial court granted summary judgment in favor of respondent City of South Pasadena (City) and real party in interest Landmark Theatre Corporation (Landmark). We affirm. *946 Contentions Appellants contend that: (1) the...
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*939 Opinion Antonio R. appeals from a juvenile court probation order that requires him to stay out of Los Angeles County unless accompanied by a parent or with prior permission from the probation officer. We affirm. I Antonio absconded from Orange County juvenile probation supervision on his 17th birthday, January 18, 1999, four days after his release from a county program. 1 In Los An...
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Opinion A plaintiff in a wrongful death action appeals from an order dismissing her action pursuant to Code of Civil Procedure section *842 664.6. 1 Finding that the summary procedures of section 664.6 are inapplicable in these circumstances, we reverse. Factual and Procedural Background In May of 1997, Patricia Kirby filed a complaint against Southern California Edison Company, allegin...
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*933 Opinion James Lin, doing business as Southland Dental, Cathy Chou, and Monica Bhandari (appellants) are licensed dentists who were aggrieved by the State of California, California Department of Health Services, and the California Medi-Cal Dental Program’s (respondents) regulation of their Denti-Cal patients. 1 They contend respondents’ regulation failed to comply ...
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204 F.3d 964 (9th Cir. 2000) SURINDER BAINS, Petitioner-Appellant,v.GOMEZ, Director, STEVE CAMBRA; JAMES H., Respondents-Appellees. No. 98-17223 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 15, 1999Decided March 2, 2000 [Copyrighted Material Omitted] COUNSEL: Clifford Gardner, Gardner & Derham, San Francisco, California, f...
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We must decide whether a change in Fijian country conditions rebuts the presumption that a Fijian of Indian descent seeking asylum in the United States has a well-founded fear of persecution. I Petitioner Sashi Lata Kumar illegally entered the United States at Blaine, Washington, on or about April 24, 1991. When Kumar applied for asylum in this country, the Immigration and Naturalizat...
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INTRODUCTION AND STATUTORY BACKGROUND This is an appeal by U S West Communications, Inc. (“U S West”) and a cross-appeal by MCI Telecommunications Corporation (“MCI”) from a district court judgment entered after review of a Washington Utilities and Transportation Commission OWUTC”) decision. The WUTC decision approved an agreement between U S West and MCImetro Access Transmission Services, Inc. ...
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204 F.3d 935 (9th Cir. 2000) KAVITA KOMAL PAL; ALVEENA AKASHNI PAL; DAVINA DEVIKA PAL; SURUJ PAL, PETITIONERS,V.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 98-71135 U.S. Court of Appeals, Ninth Circuit Argued and Submitted December 9, 1999Filed March 02, 2000 Gary Silbiger (argued), Silbiger & Honig, Los Angeles, California, for the petitioners. Ali...
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Steven Prescott,2 an employee of. the County of El Dorado, California, appealed the determination of the district court that granted him limited relief on his claim that the assessment of fair-share agency shop fees against him was not fair. We affirmed the district court in part, reversed in part, and remanded. See Prescott v. County of El Dorado, 177 F.3d 1102 (9th Cir.1999) (Prescott I). Presco...
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ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC The opinion filed on November 1, 1999 [197 F.3d 378] is hereby amended as follows: 1. Delete the third full paragraph at 197 F.3d at 383 (beginning “The district court did not abuse ...” ), including footnote 1, and substitute the following paragraph and new footnote 1: Beardslee contends that he was entit...
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Opinion We granted the request of the United States Court of Appeals for the Ninth Circuit (Ninth Circuit) for certification pursuant to California Rules of Court, rule 29.5 (rule 29.5), to address an important issue of state law: What is the proper standard under article I, section 2, subdivision (a) of the California Constitution (hereafter article I, section 2(a), or liberty of speech clause) ...
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Opinion The question presented by this case is whether state law claims for failure to warn of the risks of using a pesticide are preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. § 136 et seq.). Unlike the Court of Appeal here, the overwhelming majority of the courts that have considered this question, including eight of the federal circuit courts of appeals,...
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*995 Opinion An agreement by a subcontractor to indemnify a general contractor for any claim made with respect to the work covered by or incidental to their subcontract may require indemnity even if the claim is not meritorious and the subcontractor is not guilty of any negligence. Thus we affirm the trial court’s judgment in favor of a general contractor against a subcontractor ...
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*1022 Opinion In this matter we are asked to determine whether or not the State of California (hereinafter State or petitioner) owns all of the groundwater present under the surface of the State. We conclude that it does, but that its “ownership” is not necessarily such as to trigger an “owned property” exclusion in a policy of liability insurance. Accordingly, we set aside the t...
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Opinion Introduction Appellant Luisa Z. was arrested for possession of marijuana for sale. The juvenile court initially placed her on informal probation, but appellant violated probation, and the juvenile court committed her to the California *981 Youth Authority (CYA). The court also ordered her to register as a narcotics offender, pursuant to Health and Safety Code sec...
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Leticia Cordon-Garcia (“Petitioner”) petitions for review of a March 80, 1998, decision by the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of Petitioner’s application for asylum and withholding of deportation. Petitioner claims persecution on the basis of imputed political opinion and membership in a particular social group. Because Petitioner failed to p...
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Opinion by Judge PREGERSON; Dissent by Judge BRIGHT. This appeal requires us to review four procedural decisions made by the district court before, during, and after a jury trial that resulted in a $12.5 million verdict against defendants. Defendants contend that the district court erred in denying (1) a motion in limine seeking dismissal of one plaintiff; (2) a motion to strike expert testimony;...
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We consider whether Congress may, consistent with the First Amendment, prohibit contributions of material support to certain foreign terrorist organizations. I The Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, known among the cognoscenti as AEDPA, authorizes the Secretary of State to “designate an organization as a foreign terrorist organization ... if ...
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Opinion Appellant, the Lamont Storm Water District of Kern County, filed a complaint seeking to have certain waters declared “flows within a natural watercourse” and, further, to have “the diversion of such flows” declared “an abatable public nuisance under the law of this State including by injunction.” The trial court entered judgment against appellant after it sustained a demurrer to a...
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Opinion Introduction When a defendant in a criminal case is accused of a sexual offense, the jury will sometimes consider evidence of the defendant’s commission of *1067 another sexual offense or offenses. (Evid. Code, § 1108.) The evidence of the defendant’s commission of another sexual offense or offenses is offered to show the defendant’s disposition or propensity to ...
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with whom Justice Souter joins, dissenting. The Court today transforms a defendant’s presence at trial from a Sixth Amendment right into an automatic burden on his credibility. I dissent from the Court’s disposition. In *77Griffin v. California, 880 U. S. 609 (1965), we held that a defendant’s refusal to testify at trial may not be used as evidence of his guilt. In Doyle v. Ohio, 426 U. S. 610 (19...
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205 F.3d 1138 (9th Cir. 2000) RONALD D. BAKER, Petitioner-Appellant,v.CITY OF BLAINE; LOUANNE CRANEFIELD, Respondents-Appellees. No. 98-35378 U.S. Court of Appeals for the Ninth Circuit Submitted August 10, 1999Opinion Filed March 6, 2000 1 NOTE: OPINION HAS BEEN WITHDRAWN. SEE 221 F.3d 1108 FOR NEW OPINION. ...
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OVERVIEW This litigation arises from the efforts of Appellant Lifestyles Organization, Limited (“LSO”) to hold its annual Erotic Art Exhibition and Trade Show in Palm Springs, California, in 1997. According to LSO’s complaint, defendants Jay Stroh, Manuel R. Espinoza and. David E. Gill, all officials of the California Department of Alcoholic Beverage Control (“ABC”), (collectively the “Officials”)...
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PGA Tour, Inc. (“PGA”) appeals from the district court’s decision in favor of Casey Martin, a disabled professional golfer, ordering PGA to make an exception to its “walking rule” to allow Martin to ride a golf cart during PGA competitions. We conclude that the Americans with Disabilities Act (“ADA”) applies to PGA competitions and that allowing Martin to use a cart is a reasonable accommodatio...
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Opinion by Judge SCHROEDER; Dissent by Judge BOOCHEVER; Dissent by Judge THOMAS. Article 36 of the Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77, provides that law enforcement officials “shall inform” arrested foreign nationals of their right to notification of their consulates. A panel of this court held that Article 36 creates an individual right that is enforceable in th...
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Yoshio Takahashi (“Takahashi”) appeals his conviction of (1) conspiring to possess methamphetamine with intent to distribute and to distribute in violation of 21 U.S.C. §§ 841(a), 846 and of (2) possessing methamphetamine with intent to distribute in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2. A jury convicted Takashi on both counts on January 16, 1998. The district court sentenced Takahas...
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204 F.3d 1003 (9th Cir. 2000) JOSEPH F. ADA; FELIX P. CAMACHO, Plaintiffs-Appellees,v.GOVERNMENT OF GUAM; GUAM ELECTION COMMISSION, and its commissioners; JOSEPH F. MESA, Commissioner; JOSEPH T. DUENAS, Commissioner; FREDERICK J. HORECKY, Commissioner; DOUGLAS B. MOYLAN, Commissioner; ROSANNA D. SAN MIGUEL, Commissioner; LEONILA L.G. HERRERO, Commissioner, Defendants,and CARL T.C. GUTIERREZ; M...
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Reluctantly, even ambivalently, I dissent. They say hard cases make bad law; the result here, however, is foreordained: the majority reaches the only provident conclusion possible in the current circumstances. But it is also true that, underlying its reasoning and result, one has to wonder at the practical value of what this court does under the procedures now prevailing in bar discipline cases. A...
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Opinion G. L. Mezzetta, Inc. (Mezzetta) sued the City of American Canyon (City) for breach of oral and written contract, inverse condemnation, and civil rights violations after the City allegedly failed to honor its agreement to provide Mezzetta with a connection to a wastewater discharge system that could accept Mezzetta’s high salinity wastewater. The trial court ultimately sustained the City...
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Opinion The question before us is whether an employee who is sued by a coworker for sexual harassment is entitled under Labor Code section 2802 to indemnification from his employer of the legal costs incurred successfully defending the sexual harassment action. We conclude that he is, and we reverse the summary judgment in favor of the employer. Background The Claim for Indemn...
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Opinion The defendant in this case was involved in three vehicular accidents, two of which resulted in bodily injuries to others, in the span of less than one hour. In the third accident, she tilled a four-year-old child strapped in a child safety seat in the backseat of his mother’s vehicle. Defendant’s blood-alcohol level was .27 percent. She was convicted of second degree murder, gross vehic...
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In this appeal we consider: (1) whether the Board of Immigration Appeals erred in holding that the petitioner’s written application could not be considered absent a stipulation that his oral testimony would be consistent with his written application when the petitioner affirmed under oath that all of the material in the application was true; and (2) whether a whistleblower who exposes governmen...
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specially concurring: I concur in the eloquent and persuasive opinion of the court, which correctly interprets a difficult and opaque statute. I write separately only to note that this is a highly unusual case involving a highly unusual statute, and as such may be of only limited instructional value with respect to the enterprise of statutory interpretation as a whole. The Supreme Court has instru...
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Jesus Gabriel Garcia appeals the district court’s denial of his motion to suppress evidence seized from a highway traffic stop and post-arrest statements made to police. Following the denial of his motion, Garcia entered a conditional plea of guilty to charges that he distributed, and conspired to possess with intent to distribute, controlled substances. We have jurisdiction pursuant to 28 U.S.C....
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This is a contest for salvage rights to gold cargo in a shipwreck lying for a century on the bottom of the inland passage near Juneau. Yukon Recovery, L.L.C. (Yukon) appeals the judgment in favor of Ocean Mar, Inc. (Ocean Mar) granting rights to salvage the SS Islander. Yukon asserts that the district court applied the wrong standard of proof, erred in its ruling on abandonment, and erred in gr...
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ORDER Frederick Douglas Bennett is an inmate of the Pelican Bay State Prison of the State of California. In 1995 he began pro se a civil rights suit against the warden and nineteen other officers of the prison. The suit was filed in the Southern District of California. On December 4, 1996 it was dismissed to permit refiling in the proper venue, the Northern District of California. On February 12, ...
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Opinion Appellant contends that the trial court erroneously denied his Wheeler motion, 1 his conviction was not supported by substantial evidence, cumulative evidentiary errors and pervasive prosecutorial misconduct require reversal, and cross-examination was unduly restricted. We conclude that the trial court erred with regard to the Wheeler challenge but that none of appellant’s other a...
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California State Warden K.W. Prunty appeals the district court’s grant of prisoner Arreguin’s petition for a writ of habeas corpus. The district court granted the writ because it found that Arreguin had been deprived of a state-created liberty interest protected under the Fourteenth Amendment. We reversed that judgment in a memorandum disposition. Subsequently, we granted the Warden’s motion for ...
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We must decide whether substantial evidence exists to support the Board of Immigration Appeals’ adoption of an Immigration Judge’s decision to deny an Indo-Fijian’s petition for asylum. I Shobna Chandar Lata entered the United States on a six-month tourist visa on November 15, 1992. Upon arriving in this country, she filed an application for asylum with the Immigration and Naturalizat...
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Alphonzo Leon Johnson appeals his sentence for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. We conclude that the district court erred when it included two juvenile sentences in calculating Johnson’s criminal history category, because Johnson was not confined on the juvenile sentences within five ye...
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Defendant-appellant Armando Lopez-Soto appeals from the district court’s denial of his motion to suppress evidence that was the basis of his conviction. Because the police officer who discovered the evidence did so only after he had stopped Lopez-Soto’s car without reasonable suspicion, we conclude that the stop violated the Fourth Amendment and that the evidence must be suppressed. I ...
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James A. Miller (“Miller”) moved to modify his fíne following his felony conviction, but the district court dismissed Miller’s motion for lack of jurisdiction. In this appeal, Miller argues that-at least where payment of a fine is made an express condition of supervised release-18 U.S.C. § 3583(e)(2) gives the district courts authority to hear such motions. We agree and therefore REVERSE and REMA...
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Luis Enrique Varela petitions this court for review of the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen. We have jurisdiction to review the BIA’s denial of the motion to reopen under Section 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). See Shaar v. INS, 141 F.3d 953, 955 (9th Cir.1998). 3 We grant the petition for review, reve...
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Opinion Appellant Peter Schnall filed this class action 1 complaint seeking damages and injunctive relief against respondent Hertz Corporation (Hertz). His chief allegation was that, because Hertz’s fuel service charge was “excessive and punitive,” the rental agreement was unlawful, unfair and fraudulent within the meaning of the unfair competition law (Bus. & Prof. Code, § 172...
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Opinion James William Turner appeals from a judgment after his second trial ordering his two-year commitment to the custody of the State Department of Mental Health (DMH) following a jury finding he is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (the Act) (Welf. & Inst. Code, 2 § 6600 et seq.). Turner contends the jury’s determinat...
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Opinion Petitioners Michael Thomas Cheek and Allen Douglas Butler were found to be sexually violent predators under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.) 1 and were committed to the custody of the State Department of Mental Health (DMH) for two years. We affirmed those commitments in People v. Cheek (1999) 75 Cal.App.4th 282 [89 Cal....
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204 F.3d 1247 (9th Cir. 2000) INDEPENDENT ACCEPTANCE COMPANY, dba San Bruno Convalescent Hospital; CALIFORNIA ASSOCIATION OF HEALTH FACILITIES, a California non-profit corporation, Plaintiffs-Appellants,v.STATE OF CALIFORNIA; CA DEPT. HEALTH SVCS; KIMBERLY BELSHE, Defendants,AndDEPARTMENT OF HEALTH AND HUMAN SERVICES; DONNA E. SHALALA, Defendants-Appellees. No. 98-16533 UNITED STATES C...
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This appeal arises out of an executory contract between Conejo Enterprises, Inc., (“Conejo”) and Benedor Corporation (“Benedor”). Conejo’s trustee, Ronald L. Durkin (“the trustee”), filed a motion with the bankruptcy court to reject the contract. The bankruptcy court approved the rejection, finding that the contract was “burdensome and onerous to Conejo.” Based on the rejection, Benedor submitted ...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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OPINION After converting their chapter 11 1 bankruptcy case to chapter 7, Viet and Mai Vu (“Debtors”) filed a motion (the “Motion”) to compel the chapter 7 trustee to abandon their residence (the “Property”). The chapter 7 trustee filed a motion to sell the Property (the “Sale Motion”), and both motions were set for hearing on the same *646 day. The bankruptcy ...
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The first cause of action states a valid claim for relief. Accordingly, the Court of Appeal’s judgment should be reversed in part. Plaintiff’s first cause of action alleges failure to comply with the duty to record a certificate of substandard condition prescribed in this ordinance: “Whenever the Superintendent of Building determines by inspection that a property, either improved or unimproved, is...
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Opinion Defendant appeals from the judgment following his convictions for attempted premeditated murder and being a felon in possession of a firearm. The principal issue in this appeal is the correct method of calculating the minimum term of the indeterminate life sentence for a third strike offender when the punishment otherwise provided for the current offense is life imprisonment with possib...
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Opinion After retained counsel unsuccessfully defended a corporate landlord in a legal action brought against it by tenants, the corporation sued counsel for malpractice. Judgment was entered in counsel’s favor. Relying on Corporations Code section 317, the trial court ordered the corporation to indemnify counsel for the expenses and attorney fees incurred in defending agáinst the ma...
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Opinion Michele B., mother of the children Caitlin and Ryan, appeals from orders of the juvenile court terminating her parental rights and freeing the children for adoption (Welf. & Inst. Code, § 366.26; further undesignated section references are to this code). Appellant contends the *1192court erred in terminating her parental rights because Ryan’s alleged fathers were not provided notice of th...
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We conclude that we do not have appellate jurisdiction over this appeal. FACTS In 1996, Ocwen Financial Corporation (“OFC”), a Florida corporation, and its wholly owned subsidiary, Ocwen Financial Services, Inc. (“OFS”), acquired a company named Admiral Home Loan (“Admiral”). An Asset Purchase Agreement (“Purchase Agreement”) dated October 29, 1996, provided that appellant James Cook ...
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207 F.3d 557 (9th Cir. 2000) JERRY BARTLETT JONES, JR.,Petitioner-Appellee-Cross-Appellant,v.TANA WOOD,Respondent-Appellant-OPINION Cross-Appellee. Nos. 99-35029, 99-35310 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 18, 2000Decided March 10, 2000 [Copyrighted Material Omitted] Donna H. Mullen, John J. Samson, Assistant Attorne...
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Appellant Michael Johnson (“Johnson”) appeals from the district court’s denial of his motion to suppress evidence found as a result of a warrantless search of his residential property. Johnson filed his motion prior to entering a conditional plea of guilty to a charge of one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The district court denied Johnson’s mo...
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ORDER The opinion filed December 28, 1999 [198 F.3d 787] is amended as follows: 1. On slip opinion page 14988, line 11 [198 F.3d at 791], add the following footnote after the sentence that ends “we may only determine whether the facts could possibly support such a departure:” This standard for determining whether the error was harmless applies in both plain error and harmless error cases, b...
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245 B.R. 650 (2000) In re COUNTRY HARVEST BUFFET RESTAURANTS, INC., Debtor. Sysco Food Services of Seattle, Inc., et al., Appellants, v. Country Harvest Buffet Restaurants, Inc., Appellee. BAP No. WW-99-1038-BoRyK. Bankruptcy No. 98-01081. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on September 24, 1999. Decided February 22, 2000. *651 J. Thomas Richardson...
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Opinion Iman Kwizera entered a negotiated guilty plea to battery on a noninmate while confined in jail. (Pen. Code, §4131.5.) The court suspended imposition of sentence and placed him on three years’ probation including a condition he serve 270 days in custody. Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal ...
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Two deportation orders affirmed by the BIA are challenged in these petitions. Because most of the questions raised were before the court in Magana-Pizano v. INS, 200 F.3d 603 (9th Cir.1999), our decision has been held until the decision in Magana-Pizano became final. We now turn to the questions presented in these petitions for review. (i) Our Jurisdiction to Consider...
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Opinion by Judge Sneed; Concurrence by Judge Sneed. This case arises from an interpleader action brought by the BankAmerica 401(k) Plan (“401(k) Plan”) and the BankAmerica Pension Plan (“Pension Plan,” collectively, the “Plans”) to resolve the proper beneficiaries of the benefits under the Plans. Defendants in the interpleader action, Alva M. Montgomery and Patsy Patterson (collectively, “Appella...
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I INTRODUCTION Plaintiff-appellant Roosevelt Harris (“Harris”) sued defendant-appellee Harris & Hart (“H&H”), alleging that defendant violated his rights under the Americans with Disabilities Act when it requested that plaintiff provide a medical release before returning to work. Defendant, a qualified federal government contractor, is in the business of manufacturing and installi...
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Corrections deputy Rafael Flores sued the San Diego County Sheriff and others under 42 U.S.C. § 1983 alleging violations of his constitutional rights to free speech and due process. Pursuant to Federal Rule of Civil Procedure § 12(b)(6), the district court granted Appellees’ motion to dismiss the action. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Having reviewed the r...
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The district court consolidated three cases involving various tax shelter programs promoted by Henry F.K. Kersting: (1) a tax refund suit brought by Kersting seeking a refund of penalties for promoting an abusive tax shelter, (2) a suit by the United States against Kersting for judgment on its assessments, and (3) a wrongful levy action against the United States by Pacific Paradise, Inc., and thi...
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207 F.3d 599 (9th Cir. 2000) JENNIFER L. PASSANTINO, and the marital community; CHARLES PASSANTINO, and the marital community, Plaintiffs-Appellees-Cross-Appellants,v.JOHNSON & JOHNSON CONSUMER PRODUCTS, INC., dba Customer Support Center, Defendant-Appellant-Cross-Appellee.UNITED STATES OF AMERICA, Intervenor. No. 97-36191 No. 98-35036 UNITED STATES COURT OF APPEAL FOR THE NINTH C...
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The issue in this case is whether violation of a Washington gun law is an aggravated felony for purposes of the federal sentencing guidelines. Facts Sandoval-Barajas, a Mexican citizen, was convicted in state court in Washington of possession of a firearm by a non-citizen. He served a short jail sentence and was deported. Subsequently he was caught in the United States, and pleaded guilty...
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206 F.3d 832 (9th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,V.SACRAMENTO HINOJOSA-PEREZ, DEFENDANT-APPELLANT. No. 98-30304 U.S. Court of Appeals, Ninth Circuit Argued and Submitted October 6, 1999March 13, 2000 Michael S. Taggart, Assistant Federal Defender, Anchorage, Alaska, for the defendant-appellant. William C. Brown, United States Department of ...
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207 F.3d 1119 (9th Cir. 2000) JEFFREY HUNTER MENDLER, dba Jeffrey Hunter, Plaintiff-Appellant,v.WINTERLAND PRODUCTION, LTD., a California Corporation; SAN DIEGO YACHT CLUB, a California Corporation, Defendants-Appellees. No. 98-16061 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 11, 1999Filed March 14, 2000 Jeffrey A. Berchenko, Berchenko ...
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207 F.3d 1107 (9th Cir. 2000) GUSTAVO TECUN-FLORIAN, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70682 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 7, 1999Filed March 14, 2000 Manuel Rios, Salazar Law Offices, Seattle, Washington, for the petitioner. Greg Mack, Office of Immigration Litigation, United...
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*1270 Opinion Plaintiff and appellant Bank of America (Bank) appeals from a judgment in favor of defendant and respondent County of San Bernardino (County) and defendant and appellant Giant Inland Empire R.V. Center, Inc. (Giant), in an action by Bank to set aside a tax sale by County to Giant of real property on which Bank had a secured lien. 1 Giant appeals from the ...
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Opinion Leon E. Campbell, Richard K. Livett and Robert J. Hill (collectively Campbell) appeal a judgment for Scripps Bank entered after the trial court granted its motion for summary judgment on the basis Campbell is collaterally estopped from prosecuting the action. Campbell contends the action is not barred by collateral estoppel; Scripps Bank should be equitably estopped from asserting...
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Opinion The discovery rules do not discriminate against nonparty deponents. They need not scramble to retain a lawyer to file a motion to quash in order to challenge “records only” discovery requests that seek privileged information. It is sufficient to simply object. I Andrew Cassidenti, the head of an obstetrical medical practice group, sued Brian Koperek and other doctors for unfairly competin...
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Opinion Here we consider an issue that often arises when a juvenile dependency proceeding reaches the stage at which a permanent plan must be selected for an adoptable child. If a parent has maintained a good relationship with the child through visitation, is that a reason to select a plan less permanent than adoption? This court has interpreted a former statute governing permanency planning as r...
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Opinion Defendant Joseph Antony Marquez was convicted by jury of two counts of robbery. (Pen. Code, § 211; further statutory references are to the Penal Code unless noted otherwise.) He was acquitted of being a felon in possession of a firearm. (§ 12021, subd. (a).) The court found true allegations defendant suffered two prior serious felony convictions within the meaning of section 667, subdivis...
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*1392 Opinion No less an authority on insurance law than John Alan Appleman declared 40 years ago that a liability insurer “ ‘is playing with fire’ ” when it refuses to disclose policy limits. Such a refusal “ ‘cuts off the possibility of receiving an offer within the policy limits’ ” by the company’s “ ‘refusal to open the door to reasonable negotiations.’ ” (See Johanek v...
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Opinion Following a contested jurisdictional hearing, the juvenile court sustained a Welfare and Institutions Code section 602 petition alleging that appellant violated Health and Safety Code section 11359, possession of marijuana for sale. Appellant was a minor at the time of the offense and 18 years of age at the time of disposition. The court placed appellant on juvenile probation with certa...
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*1362 Opinion A young woman is found in her bathtub, strangled by a noose tied to the showerhead. Though she has been dead for nearly two weeks, the pathologist who performs the autopsy is able to determine that there are no significant bruises or other injuries aside from the strangulation. The victim’s artificial fingernails are all in place, and there is no sign of a struggle. The patholog...
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This is one of several appeals before this panel relating to the Exxon Valdez oil spill litigation. The subject of this appeal is whether the $5 billion punitive damages verdict against Exxon, and the $5,000 punitive damages award against Hazelwood, should be set aside because of irregularities during jury deliberations. We affirm the district court order that it should not. This decision goes onl...
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207 F.3d 623 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ISIDRO GOMEZ-LEPE, OPINION Defendant-Appellant. No. 99-30031 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 7, 1999--Seattle, WashingtonFiled March 16, 2000 [Copyrighted Material Omitted] Richard A. Smith, Smith Law Firm, Yakima, Washington, for the appel...
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Deborah Jean Ross appeals from her conviction for misappropriation of postal funds in violation of 18 U.S.C. § 1711. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. *898 I Ross was a twenty-six year employee of the United States Postal Service (“Postal Service”), whose duties included selling money orders to the public. United States postal money orders are designed to be ...
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208 F.3d 1160 (9th Cir. 2000) UNITED STATES OF AMERICA,v.Plaintiff-Appellee, SERGIO ARTURO VILLA-GONZALEZ,aka Manuel Ozuna-Lopez Defendant-Appellant. No. 99-15515 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted February 8, 20001Filed March 16, 2000 COUNSEL: Sergio Arturo Villa-Gonzalez, Naco, Arizona, defendantappellant pro se. Richard E. Gordon, Ass...
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207 F.3d 632 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RODERICK LOREN WETCHIE ,OPINION Defendant-Appellant. No. 99-30152 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 18, 2000--San Francisco, CaliforniaDecided March 16, 2000 Fredilyn Sison, Federal Defenders, Boise, Idaho, for the defendant-appellant. James M...
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Opinion In this matter we address the question whether plaintiffs in a malpractice action could subpoena the expert trial testimony of an investigator for the California Department of Health Services (hereafter DHS), or refer at trial to a draft preliminary report he prepared for the DHS, when the investigator had relied substantially on hospital peer review committee records in forming h...
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93 Cal.Rptr.2d 509 (2000) 22 Cal.4th 512 994 P.2d 354 The PEOPLE, Plaintiff and Respondent, v. Aldo HERNANDEZ, Defendant and Appellant. No. S074951. Supreme Court of California. March 16, 2000. *511 Corinne S. Shulman, under appointment by the Supreme Court, Hydesville, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chi...
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Opinion The People of the State of California appeal from the trial court’s order dismissing the indictment in this case pursuant to the Interstate Agreement on Detainers, codified in California in Penal Code section 1389. 1 This indictment contained five counts that had previously been filed against respondent Assaf Oiknine in People v. Oiknine (Super. Ct. L.A. County, No. BA151583) (case ...
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concurring in part and dissenting in part: I concur fully in that part of Judge Takasugi’s opinion which holds that the Bellingham defendants are not entitled to qualified immunity with regard to De-Boer’s Fourth Amendment claims.1 My disagreement with the majority is over DeBoer’s due process claim. In my view, the contract between the City and D & M Operating Company, of which De-Boer was a part...
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Appellant Stephen Simon appeals the district court’s dismissal of his civil suit against approximately 1,600 defendants in the health insurance industry. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM. I. When filing this appeal, Simon requested initial en banc hearing pursuant to Rule 35 of the Federal Rules of Appellate Procedure. The judges of this circuit were notified of this requ...
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*1446 Opinion In this case of first impression, we determine that a defendant’s prior felony convictions are admissible under Evidence Code 1 sections 1202 and 788 to attack his credibility when, at his own request, his exculpatory statement to the police is admitted into evidence, but he does not testify at trial. Jarrett Lamont Jacobs (appellant) was convicted by a jury of receiving sto...
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Opinion An errant shot by a golfer ricocheted off a wooden yardage marker, injuring a companion golfer. We conclude the injured golfer’s personal injury action against the golf course for negligent design and placement of the yardage marker is barred by the primary assumption of the risk doctrine. We hold golf is an active sport, errant shots are an inherent risk of golf, yardage markers are an...
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Opinion Plaintiffs ML Direct, Inc., and Nancy G. Shalek appeal from the summary judgment entered in favor of defendant TIG Specialty Insurance Co. in this insurance coverage declaratory relief action. For the reasons set forth below, we affirm the judgment. Facts and Procedural History Plaintiff and appellant ML Direct, Inc. (MLD), bought a directors and officers (D&O) policy (t...
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Opinion Plaintiff Inter Mountain Mortgage, Inc, appeals summary judgment entered in favor of defendants, Sam Sulimen and American Frontier Financial Group (American Frontier). This action arises from an alleged fraudulent loan transaction scheme perpetrated by one of defendants’ loan representatives, Paul Baskaron, against Inter Mountain Mortgage, the mortgage loan brokerage that processed the ...
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I concur completely in the result reached by the majority and I concur in the reasoning of the majority opinion, except for the discussion entitled “The Court Did Not Err in Failing to Appoint Advisory Counsel’ for Garcia.” As to that portion of the opinion I concur only in the result. I am sympathetic with the concerns expressed by the majority regarding the circumstances in which advisory counse...
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Christine DeGrassi was a member of the Glendora City Council (the Council). She seeks indemnity for her attorney’s fees from the City of Glendora (the City) under the California Tort Claims Act. She also seeks damages from various City officials and private parties for alleged civil rights violations under 42 U.S.C. § 1983. We must decide: 1) whether a city council member sued for statements made ...
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C. A. 9th Cir. Certiorari granted....
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207 F.3d 566 (9th Cir. 2000) In re: GALE PALMER; JULIE A. PALMER, Debtors.UNITED STATES INTERNAL REVENUE SERVICE; UNITED STATES OF AMERICA,OPINION Appellants,v.GALE PALMER; JULIE A. PALMER, Appellees. No. 98-35577 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 11, 1999Filed March 20, 2000 Thomas J. Sawyer, Tax Division, United States Dep...
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Opinion by Judge PREGERSON; Dissent by Judge SNEED. Carl Eugene Stephens appeals his conviction for possession with intent to dis*916tribute cocaine in violation of 21 U.S.C. § 841(a)(1). Stephens contends that the cocaine was discovered as a result of police conduct in violation of the Fourth Amendment. The district court admitted evidence of cocaine found in Stephens’s bag over Stephens’s motion...
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Opinion by Judge FLETCHER; Dissent by Judge THOMAS. Arthur S. West appeals pro se the district court’s dismissal of his claims challenging the Federal Highway Administration’s (“FHWA”) decision to categorically exclude a two-stage highway interchange project from review under the National Environmental Policy Act (“NEPA”), 42 U.S.C. § 4332. The district court determined that the FHWA’s decision t...
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Opinion This case concerns the duty private contractors owe the general public when they undertake work that might affect an allegedly dangerous condition of public property. Consequently, we consider the negligent undertaking theory of liability articulated in Restatement Second of Torts, section 324A (section 324A), and its application in this context. As we recently stated in Artiglio v. Corni...
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Opinion Real party in interest Jameszetta R. Sims 1 held a policy of automobile insurance issued by petitioner Government Employees Insurance Company (GEICO). It included collision coverage for her car. After she was involved in a traffic accident and suffered serious and disabling injuries, GEICO paid her husband, Demar Sims, the agreed value of the car. Unfortunately, Jamesze...
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Opinion Third party claimants sued an insured under a commercial general liability policy contending the insured had lied about its intentions to perform certain acts in return for the claimants granting it an *107 easement over their property. The insured tendered the defense to its insurer; the latter refused to defend. We agree with the trial court that such a claim is not...
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206 F.3d 938 (9th Cir. 2000) JED ARNO BLAIR, PLAINTIFF-APPELLANT,v.CITY OF POMONA, A MUNICIPAL CORP.; CHARLES HEILMAN, INDIVIDUALLY & IN HIS OFFICIAL CAPACITY, DEFENDANTS-APPELLEES. No. 98-55548 U.S. Court of Appeals, Ninth Circuit Argued and Submitted November 3, 1999March 21, 2000 NOTE: SEE AMENDED OPINION AT 223 F.3d 1074 ...
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Susan DeMando appeals the district court’s grant of summary judgment in favor of defendant Capital One Bank. De-Mando, who holds a credit card issued by Capital One, alleges that the bank’s course of dealing violated the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1693, and constituted breach of contract, unfair competition, fraud, and misrepresentation under California law. We affirm the dis...
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206 F.3d 1304 (9th Cir. 2000) SHEROL DIRUZZA, aka Sherol Janc, Plaintiff-Appellant,v.COUNTY OF TEHAMA, a public entity; ROBERT HEARD, as an individual and as Sheriff for the County of Tehama; JERRY FLOYD, as an individual and as Undersheriff of the County of Tehama, Defendants-Appellees. No. 98-15997 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 12,...
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207 F.3d 650 (9th Cir. 2000) GARRISON S. JOHNSON, Petitioner-Appellant,v.STATE OF CALIFORNIA; JAMES H. GOMEZ, Director, Department of Corrections; JAMES ROWLAND, Respondents-Appellees. No. 98-55302 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted October 8, 19991Filed March 21, 2000 [Copyrighted Material Omitted] Garrison S. Johnson, Lancaster, Califo...
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206 F.3d 932 (9th Cir. 2000) MICHAEL SHAWN TAYLOR, Plaintiff-Appellant,v.RANCHO SANTA BARBARA, a California General Partnership, and its general partners; CUERVO CORP., a California Corporation; KENNETH E. ECKERT, and LORENA J. ECKERT, Co-Trustees of the Lorena J. Eckert Trust; WARREN J. HOWLAND, Trustee of the Warren J. Howland Trust; MARGARET S. HOWLAND; and FREDERICK RICE, Trustee of the F...
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Marvin Lee Hardeman appeals his conviction of distribution of cocaine, possession with the intent to distribute cocaine, and conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. The dispositive issue is whether the Speedy Trial Act was violated during a period of time that elapsed before trial and following a status conference held by the district court to resolve pend...
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207 F.3d 648 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ADAN SALAZAR-ROBLES, Defendant-Appellant. No. 99-10194 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2000Decided March 21, 2000 John P. Balazs, Assistant Federal Public Defender, Sacramento, California, for the defendant-appellant. Robin R. Taylor, A...
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*181Opinion Introduction We address a recurring issue not yet resolved by our Supreme Court. In a prosecution for sex offenses, evidence of prior sex offenses was admitted pursuant to Evidence Code section 1108. The jurors were instructed under CALJIC Nos. 2.50.01 (before its revision in 1999), 2.50.1, and 2.50.2 that if they found, by a preponderance of evidence, that the defendant committed the...
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Opinion Defendant Michael Feeney Gardineer was sentenced to state prison after the trial court revoked his probation because he violated a domestic violence restraining order. Defendant appeals, contending (1) the condition of probation that he violated, which required him to “observe good conduct,” is unconstitutionally vague; (2) there was insufficient evidence that he knew of the terms and...
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delivered the opinion of the Court. For the second time in recent years we consider constitutional questions arising from a program designed to facilitate *221extracurricular student speech at a public university. Respondents are a group of students at the University of Wisconsin (hereinafter University). They brought a First Amendment challenge to a mandatory student activity fee imposed by petit...
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207 F.3d 575 (9th Cir. 2000) CALIFORNIA MEDICAL ASSOCIATION; CALIFORNIA ACADEMY OF FAMILY PHYSICIANS; CALIFORNIA SOCIETY OF ANESTHESIOLOGISTS; CALIFORNIA UROLOGICAL ASSOCIATION; CALIFORNIA CHAPTER OF THE AMERICAN COLLEGE OF EMERGENCY PHYSICIANS; CALIFORNIA CHAPTER OF THE AMERICAN COLLEGE OF CARDIOLOGY; CALIFORNIA SOCIETY OF INTERNAL MEDICINE; CALIFORNIA SOCIETY OF PHYSICAL MEDICINE & REHAB...
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207 F.3d 569 (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellant,v.JAMIE JOHN HAGBERG, OPINION Defendant-Appellee. No. 99-30112 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 9, 2000--Seattle, WashingtonDecided March 22, 2000 Ethan G. Shenkman, United States Department of Justice, Environment & Natural Resources Division, ...
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*207 Opinion The People appeal from an order of the trial court denying their motion to reinstate a felony complaint charging respondent Eugene Jamar Massey with murder. (Pen. Code, §§ 871.5, 1238, subd. (a)(9), 1387.1.) 1 The People contend the trial court misinterpreted the applicable standard under section 1387.1 and erroneously precluded it from filing the felony complaint against respo...
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Opinion We issued an alternative writ to review denial of a motion brought by petitioner, Twentieth Century Fox Film Corporation (petitioner), *190 to stay this action pending outcome of a petition to compel arbitration of the dispute. While we conclude that respondent acted in excess of its power, we have been advised that the facts upon which we based issuance of the alternative writ no lon...
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*216 Opinion Hunt Building Corporation (Hunt) sued Ray Remy, former Director of the California Employment Development Department (EDD), to recover an assessment for contributions to unemployment insurance, disability insurance and employment training, as well as personal income tax withholding, for work performed on federal land by unlicensed subcontractors engaged by Hunt. The t...
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*227Opinion Doeur Michael Son appeals his jury-tried convictions of two murders while armed with a firearm. (Pen. Code,1 §§ 187, subd. (a), 190.2, subd. (a)(3), 12022, subd. (a)(1).) Son contends the court erred in not instructing the jury on the lesser included offense of voluntary manslaughter under the theory he acted with “imperfect duress.” Son also contends the court erred in excluding his ...
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This litigation war between two rival churches concerns copyrights to the writings, photographs, and sound recordings of Swami Paramahansa Yogananda. The plaintiff, Self-Realization Fellowship Church (“SRF”), claims that it holds valid copyrights to all of the works. The defendants and admitted copiers are a breakaway church and its leader, Ananda Church of Self-Realization and James Walters (“Ana...
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Opinion A sheriff’s deputy pursues a speeding motorist but fails to activate his car’s siren or lights. The motorist runs a red light at high speed, colliding with another car and killing or injuring its passengers. Is the deputy personally liable to the car’s passengers for asserted negligence in failing to activate his siren or lights? As will appear, we conclude that the deputy is statutoril...
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Opinion Defendant and appellant Kenneth Davis obtained a certificate of probable cause to appeal on the ground he was erroneously denied deferred entry of judgment. Following the denial, Davis pled guilty to one count of possession of cocaine (Health & Saf. Code, § 11350), the prior *253 conviction allegation was dismissed in the interest of justice, and he was sentenced to t...
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93 Cal. Rptr. 2d 899 (2000) 79 Cal. App. 4th 260 The PEOPLE, Plaintiff and Respondent, v. Van Hugh NEEDHAM, Defendant and Appellant. No. F032060. Court of Appeal, Fifth District. March 22, 2000. Review Denied July 12, 2000. *900 John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General,...
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This case involves an action for contribution under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). The Boeing Company and Cascade Corporation contaminated porous soil, called an aquifer. The contamination overlapped. Both companies spent a great deal of money investigating and beginning the cleaning. The issue in this case is how their respective expenses ou...
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The United States cross-appeals Frederick Lamar Hamilton’s sentence, 2 challeng *1167 ing the district court’s refusal to enhance Hamilton’s sentence under 21 U.S.C. § 841(b)(1)(A). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and vacate and remand for resen-tencing. I. A jury convicted Hamilton of conspiracy to manufacture piperidine cyclohexanolear-bonictrite (“PCP”...
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National Union Fire Insurance Company of Pittsburgh (“National Union”) appeals the district court’s entry of summary judgment in favor of Jack Webb, Special Deputy Receiver for American Eagle Insurance Company (“American Eagle”). National Union contends that the district court erred in refusing to consider extrinsic evidence that allegedly would prove that American Eagle’s insurance policy provide...
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Opinion This petition for writ of review, one of the first presented to the Court of Appeal under jurisdiction recently established by Public Utilities Code section 1756,1 raises an important issue of appellate procedure. Where the Legislature has authorized a writ of review as the exclusive method of challenging a Public Utilities Commission (PUC or commission) decision, must the Court of Appeal...
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Opinion Introduction Petitioner First State Insurance Company, joined by a number of other insurance 1 seeks an order from this court requiring respondent court to vacate an order made in the case of Jalisco Corp. v. Argonaut Ins. Co. (Super. Ct. L.A. Co., No. BC158441) now pending in respondent court. Specifically, petitioner seeks to nullify the cou...
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Opinion Summary Where a plaintiff’s proper invocation of the trade secrets privilege prevents a defendant from examining the basis for the plaintiff’s damage claim, the trial court may properly bar the plaintiff’s damage evidence at trial. If a buyer and a seller exchange invoice and purchase order with conflicting warranty terms, but their conduct shows that a contract has been form...
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* Reprinted without change in the Review Granted Opinions Pamphlet to permit tracking pending review and disposition by the Supreme Court. [EDITORS' NOTE: PAGES 359-382 CONTAINING LUGTU v. CALIFORNIA HIGHWAY PATROL HAVE BEEN OMITTED.] *Page 383 ...
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Ct. App. Cal., 1st App. Dist. Certiorari denied....
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207 F.3d 584 (9th Cir. 2000) BENITO EUSEBIO CHANCHAVAC, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-71195 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 5, 1999Filed March 27, 2000 [Copyrighted Material Omitted] Joaquin Talleda, Pasadena, California, for the petitioner. Marion E. Guyton, United S...
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Petitioner Oscar A. Socop-Gonzalez was given incorrect information by an INS officer regarding the appropriate procedures for legalizing his immigration status. So-cop-Gonzalez relied on that information and, as a result, he did not file the necessary motion to reopen deportation proceedings against him until after the statute of limitations had expired. Two questions are presented for our revi...
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206 F.3d 1337 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ERNESTO IBARRA-GALINDO, Defendant-Appellant. No. 99-30090 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 12, 1999Filed March 27, 2000 COUNSEL: Michael Filipovic, Assistant Federal Public Defender, (argued) Seattle, Washington, for the defendant-appellant. ...
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ORDER Upon the vote of a majority of nonre-cused active judges of this court, it is ordered that this case be reheard by the en banc court, pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court....
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Opinion Defendant Peter Sakarias was convicted of first degree murder in the death of Viivi Piirisild, with special circumstances of murder in the commission of robbery and burglary (count 1; Pen. Code, §§ 187, subd. (a), 190.2, subd. (a)(17)), 1 and of robbery (count 2; § 211), two counts of burglary (counts 3 and 4; § 459), theft of telephone services (count 5; § 502.7, subd. (a)(1)), and c...
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Opinion I. Introduction Defendant, Daniel Herrera Ramirez, appeals from his convictions for operating a chop shop (Veh. Code, § 10801), grand theft of an automobile (Pen. Code, 1 § 487, subd. (d)), second degree burglary (§ 459), possession of a firearm by a felon (§ 12021, subd. (a)(1)), and perjury (§ 118). In the published portion of the opinion, we discuss the sufficiency of the evidenc...
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Opinion Plaintiffs and appellants Neil Silver, James Williams, Robert Bennett, Robert Caudill, Johnny Howard, United Transportation Union General Committee of Adjustment (UTU), and Amalgamated Transit Union, Local 1277, AFL-CIO (ATU) (collectively, petitioners), appeal a judgment denying their petition for writ of mandate, which petition was directed against defendants and respondents Los Angeles ...
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529 U.S. 266 (2000) FLORIDA v. J. L. No. 98-1993. United States Supreme Court. Argued February 29, 2000. Decided March 28, 2000. CERTIORARI TO THE SUPREME COURT OF FLORIDA *267 Ginsburg, J., delivered the opinion for a unanimous Court. Kennedy, J., filed a concurring opinion, in which Rehnquist, C. J., joined, post, p. 274. Michael J. Neimand, Assistant Attorney General of Florida, argued the ca...
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This case requires us to decide whether the res judicata effect of a prior arbitration award on a subsequent arbitration is an issue to be determined by an arbitrator or by the court. We are not presented with a disagreement over whether the parties agreed to arbitrate. They clearly did, and the dispute falls squarely within their broad arbitration agreement. Rather, the issue before us is ...
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207 F.3d 595 (9th Cir. 2000) In re: MARTHA M. BERNAL, Debtor.EDUCATIONAL CREDIT MANAGEMENT CORPORATION, Appellant,v.MARTHA M. BERNAL, Appellee. No. 98-56432 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 8, 2000Decided March 28, 2000 Robert L. Rentto, San Diego, California, for the appellant. Martin A. Eliopulos, John R. Morris, Hig...
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*399 Opinion I. Introduction John Kuykendall (Kuykendall) seeks a writ of review after the Workers’ Compensation Appeals Board (Board) reversed the workers’ compensation administrative law judge (WCJ) and admitted evidence submitted by the State of California Subsequent Injuries Fund (SIF) after the mandatory settlement conference (MSC). The issue presented is whether Labor Code section 5...
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Opinion Introduction Defendant, Las Vírgenes Municipal Water District, appeals from an order awarding, plaintiff, Jonathan Vo, $470,000 in attorney fees after he prevailed on his complaint for violations of the Fair Employment and Housing Act (FEHA) (Gov. Code, 1 § 12900 et seq.). We agree with plaintiff that defendant has failed to provide an adequate record to permit us ...
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529 U.S. 277 (2000) CITY OF ERIE et al. v. PAP'S A. M., tdba "KANDYLAND" No. 98-1161. United States Supreme Court. Argued November 10, 1999. Decided March 29, 2000. CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA *278 *279 *280 *281 O'Connor, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Rehnquist, C. J., and Kennedy, Soute...
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Plaintiffs Alan M. Howard, R. Boris Greenberg, Kathryn Paraventi and Me-rhdad Etemad (“Plaintiffs”) sued America Online, Inc., James V. Kimsey, Stephen M. Case, Lennert J. Leader and 100 “Doe” and “Roe” defendants (collectively “AOL”) for: violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1962(c), 1962(d); violations of the Communications Act of 1934, 47 U...
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Janice D. Loyd, trustee and liquidator of First Assurance Casualty Co., Ltd., appeals the district court’s dismissal of her complaint against the company’s former law firm, Aguilar & Sebastinelli. The complaint charged the firm with malpractice for failing to prevent the company’s shareholders from conducting a fraudulent insurance scheme. The district court dismissed the action on the alternative...
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Plaintiffs, four female former high school students, appeal the summary judgment in favor of the school district and several named school district officials in an action for damages under Title IX and 42 U.S.C. § 1983. We affirm the judgment because: (1) the school district did not *738subject the plaintiffs to harassment by acting with deliberate indifference to harassment of which it had actual ...
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Rob Nite, a federal prisoner, appeals pro se the district court’s summary judgment for the Securities and Exchange Commission (“SEC”) in its securities fraud action, alleging that Nite violated anti-fraud provisions of federal securities laws. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, see Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996), and we vacate and re...
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On June 20, 1994, less than one month after his honorable discharge from the United States Air Force, Dean Mellberg entered Fairchild Air Force Base near Spokane, Washington and opened fire, killing 4 people and wounding 28 others. The dead included two doctors who had months earlier diagnosed Mellberg as dangerous. The representatives of 19 of the victims filed these actions claiming the United S...
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Robert Michael Standard was convicted of, inter alia, subscribing to a false tax return. In this, his third appeal, he challenges the district court’s computation of the base offense level for his tax conviction. The district court relied on the pre-sentence report’s statement that Standard improperly deducted more than $1.7 million on his 1988 tax return. Standard objected to this statement as...
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Opinion In this case we consider the workers’ compensation claim of a police officer who injured his hand when he struck a wall with his fist during an argument with a superior officer. The sole issue to be decided is whether the Workers’ Compensation Appeals Board (Board) correctly barred the industrial injury claim of petitioner William Smith (applicant) against respondent City of Haywa...
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Opinion Appellants Stephen S. and Jeannette Bailey settled a personal injury action with the driver of a car who injured Mr. Bailey and with the driver’s employer. Respondent Reliance Insurance Company (Reliance), the workers’ compensation carrier for Mr. Bailey’s employer, brought a motion under Code of Civil Procedure section 877.6 for a finding that the settlement was in bad faith. The Baile...
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Opinion Defendants Board of Retirement of the San Diego County Employees Retirement Association (SDCERA) and County of San Diego (San Diego) appeal a judgment mandating defendants to place plaintiffs Sharon Lear and Loren Mandel in a more favorable retirement tier. Seeking reversal, defendants contend plaintiffs were not statutorily entitled to placement in the more favorable retirement tier. We ...
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Opinion Statement of the Case and Facts Appellant Rita Marie Greene (hereafter Greene) and respondent Charles Thomas Cutler (hereafter Cutler) were married in approximately 1962 and had two children: Charles Thomas (hereafter Charles), bom February 15, 1963, and Valerie Ann (hereafter Valerie), bom November 13, 1964. Greene *464and Cutler separated in December of 1964. An interlocutory judgment o...
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Opinion Under California’s Determinate Sentencing Act (DSA), when a court imposes consecutive prison terms for two or more determinate counts, one term becomes the principal term, and the rest are subordinate terms. The court may also impose sentence enhancements for any of the counts for conduct such as using a firearm while committing the crime. Generally, the court imposes the full enh...
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Opinion The University of California at Los Angeles Medical Center purchased the Santa Monica Hospital Medical Center. When physician participation in the anesthesia service at the Santa Monica facility was later restricted to UCLA’s faculty members, a.group of anesthesiologists who had previously practiced at the Santa Monica facility sued UCLA for damages and injunctive relief. The tria...
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Opinion A defendant answered a complaint but did not allege a right to arbitrate as an affirmative defense, then participated in the discovery process without claiming a right to arbitrate. Three months later, the defendant moved to compel arbitration. The plaintiff cried foul, pointing out that the defendant had known about the arbitration provision at the time this case was filed and served. ...
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Opinion In this environmental land use dispute, the City of Plymouth, the Foothill Conservancy, and an unincorporated association, Families Unafraid to Uphold Rural El Dorado County (known by its acronym, The Future) (collectively, plaintiffs), appeal from two orders denying their motions for attorney fees under the private attorney general theory of Code of Civil Procedure section 1021.5 (hereaft...
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*611 Opinion I Introduction In this appeal, we consider whether a city official designated by the City of El Monte (City) had the authority under relevant statutes to act as a hearing officer or trier of fact at a disability retirement benefits appeal. City denied Lupe Langan’s (Langan) application for disability retirement benefits. Langan filed an appeal. City notified her that a City...
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Opinion These appeals arise from the convictions of defendants Charles Frank Spence (Spence) and Thomas John Smithson (Smithson) for the robbery and murder of Dominick Virgil Tonelli (Tonelli or the victim). We consolidated the appeals on our own motion. Spence alleges: (1) the trial court improperly refused to conduct a full hearing on Spence’s motion to exclude his confession from ...
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Martin Perez-Lastor petitions this court for review of a decision of the Board of Immigration Appeals (“BIA”). The BIA affirmed an Immigration Judge’s (“IJ”) determination that Perez-Lastor failed to establish his eligibility for asylum or withholding of deportation because his testimony was not sufficiently consistent, specific, and credible to meet his burden of proof. The BIA also ruled that th...
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This case arises under the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Retirement Equity Act of 1984 (“REA”). The REA was designed to protect the financial security of ex-spouses and dependants after divorce. See Boggs v. Boggs, 520 U.S. 833, 845, 117 S.Ct. 1754, 138 L.Ed.2d 45 (1997); Ablamis v. Roper, 937 F.2d 1450, 1453 (9th Cir.1991). When Appellant Shirley Stewa...
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Opinion Procedural Background On or about November 13, 1997, an information was filed against appellant James Allen Ramsey, alleging that between December 16, 1996, and January 28, 1997, appellant discharged concrete and other materials into and near the Santa Clara River, and altered the banks of this river. Count 1 charged appellant with discharge of pollutants into navigable water...
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Opinion The County of Orange, its sheriff, and various employees of the sheriff’s department (collectively, the County) seek extraordinary relief from an order allowing suspects in an ongoing criminal investigation to review the contents of the investigative file through the medium of civil discovery. The County argues the trial court abused its discretion in granting discovery of the file at t...
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*562 Opinion The Department of Motor Vehicles (hereinafter Department) revoked appellant Steven Willis Alford’s vehicle salesperson’s license after he was criminally convicted of petty theft with a prior (Pen. Code, §§ 666/484) and assault (Pen. Code, § 241, subd. (a)). In an administrative mandamus proceeding in superior court, appellant contended that the revocation was unlawfu...
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529 U.S. 333 (2000) FREE et al. v. ABBOTT LABORATORIES, INC., et al. No. 99-391. United States Supreme Court. Argued March 27, 2000. Decided April 3, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT Daniel A. Small argued the cause for petitioners. With him on the briefs were Michael D. Hausfeld, Matthew F. Pawa, Eric L. Olson, Daniel E. Gustafson, Howard J. Sedran, an...
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This appeal arises under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. Plaintiffs, who are managers and registered nurses employed by defendant County of Santa Clara, filed actions seeking overtime pay under the FLSA. Defendant moved for summary judgment, arguing that it could correct its failures to comply with the relevant administrative rules through the regulatory “window of cor...
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After a bench trial, defendant Rolland Coleman was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 2. Defendant appeals his conviction on three grounds: (1) the district court erred in denying his motion to suppress certain evidence; (2) the government breached the jury waiver agreement; and (3) there was insufficient evidence to support his conviction ...
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Opinion by Judge D.W. NELSON; Dissent by FLETCHER. David Daniel Thomas Wilkerson appeals his conviction by conditional guilty plea to one count of armed bank robbery under 18 U.S.C. § 2113(a)(d) and one count for use or carrying of a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c). I. Factual and Procedural Background The charges stem from an incident where appellant ...
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This petition for review presents the question, inter alia, of whether Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988) was overruled sub silentio by INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We conclude it was not and grant the petition for review from the decision of the Board of Immigration Appeals (“BIA”) affirming th...
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Opinion The Medical Board of California (MBC), a state administrative agency, has authority to discipline a physician for unprofessional conduct by restricting, suspending, or revoking the physician’s license to practice medicine. (Bus. & Prof. Code, § 2227.) A physician whom the MBC has disciplined in this way may obtain judicial review of the MBC’s order by commencing an administrative mandate ...
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Opinion In 1994, California voters adopted Proposition 187 in an effort to address the problem of illegal immigration. Section 113 of the Penal Code 1 —one of the provisions of Proposition 187—provides that “[a]ny person who manufactures, distributes or sells false documents to conceal the true citizenship or resident alien status of another person is guilty of a felony, and sh...
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Opinion by Judge BOOCHEVER; Dissent by Judge O’SCANNLAIN. We decide whether a successor employer has a duty to bargain with an incumbent union before unilaterally imposing terms when the employer hires its initial workforce from the ranks of a represented bargaining unit of its predecessor. I — I Advanced Stretchforming International, Inc., (“ASI”) manufactures structural body components used in ...
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Warren H.S. Chang appeals his conviction and sentence for conspiracy, uttering a counterfeit foreign obligation and possessing a counterfeit foreign obligation. On appeal, Chang challenges certain evi-dentiary rulings made by the district court, contends that the evidence presented against him at trial was insufficient to sustain part of his conviction and argues that the sentence imposed by the ...
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Opinion Petitioner Eric O. Locks was charged with a criminal offense, found not guilty by reason of insanity, and committed to Atascadero State Hospital (ASH) for treatment. We conclude that while confined at ASH, he is not entitled to a hearing to determine his competence to refuse to take antipsychotic medication. We therefore deny his petition for habeas corpus. Facts In 1976...
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Opinion Over a half-century ago, Justice Vallee, apparently weary of the repetitive and almost nauseating frequency of appeals challenging the sufficiency of the evidence, reiterated the even then familiar “substantial evidence rule.” He then lamented: “No one seems to listen.” (Overton v. Vita-Food Corp. (1949) 94 Cal.App.2d 367, 370 [210 P.2d 757].) Just two years ago, in ...
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Opinion Defendants, Hall’s Furniture Defined Benefit Pension Plan and Kenneth B. Heller, have appealed from various orders. They now seek to dismiss their appeal without being required to pay the costs of plaintiffs, Sanford Small, Sheldon Small, Avis Sugarman, and John Kemp. We conclude that the appeal should be dismissed with each side to bear its own costs on appeal. On November 3, 1998, d...
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Opinion Condominium associations may bring construction defect lawsuits against developers without fear of having to disclose privileged *642 information to individual homeowners. Like closely held corporations and private trusts, the client is the entity that retained the attorney to act on its behalf. I This litigation has its genesis in a construction defect acti...
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208 F.3d 1096 (9th Cir. 2000) HAMOUDI H. KHOURASSANY,HASHEM H. KHOURASSANY; FETAM KHOURASSANY,Petitioners,v.IMMIGRATION AND NATURALIZATION OPINION SERVICE,Respondent. No. 99-70020 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 10, 2000Decided April 5, 2000 COUNSEL: Murray D. Hilts, San Diego, California, for the petitioners. Marshal...
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ORDER Pursuant to the mandate of the United States Supreme Court certified on March 14, 2000, in Rice v. Cayetano, — U.S. -, 120 S.Ct. 1044, 145 L.Ed.2d 1007, we vacated our opinion at 146 F.3d 1075 (9th Cir.1998), reverse the district court, and remand for further proceedings which are consistent with the opinion of the Supreme Court....
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208 F.3d 1170 (9th Cir. 2000) ANTHONY RUTLEDGE, an individual an his own behalf and beneficiaries of the Hotel Unionand Hotel Industry of Hawaii Pension Trust; AFL HOTEL AND RESTAURANT WORKERS' HEALTH AND WELFARE FUND, Plaintiffs-Appellees,v.SEYFARTH, SHAW, FAIRWEATHER & GERALDSON, a California Law Partnership; MITCHELL WHITEHEAD, an individual, Defendants-Appellants. No. 98-15298 ...
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Opinion When an action for wrongful death is grounded upon the alleged malpractice of the health care provider, the action is subject to the rules pertaining to punitive damages in medical malpractice cases. (See Code Civ. Proc. § 425.13.) We conclude that is the case, even when the wrongful death action is couched in terms of elder abuse. The trial court therefore erred in allowing the ...
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The plaintiff, David Balcorta, sued his employer, Twentieth Century Fox Film Corporation, in state court for violations of a California wage law. Fox removed the ease to federal court on the ground that the claims were “completely preempted” by federal labor law. It then moved for summary judgment, and Balcorta moved to remand the case to state court. The district court granted Balcorta’s motion a...
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208 F.3d 1171 (9th Cir. 2000) BETHEL NATIVE CORP., an Alaska Native Village Corp.,Plaintiff,v.DEPARTMENT OF THE INTERIOR; BRUCE BABBITT, Secretary of the Interior; BUREAU OF INDIAN AFFAIRS; NILES CESAR, Regional Administrator of the Bureau of Indian Affairs; ADA DEER, Assistant Secretary of the Interior for Indian Affairs, Defendants,v.UNITED STATES OF AMERICA, Defendant-Third-Party-Plaintiff-...
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208 F.3d 1112 (9th Cir. 2000) JULIE DUNCAN, on behalf of herself and all others similarly situated, Plaintiff-Appellant,v.NORTHWEST AIRLINES, INC.,OPINION Defendant-Appellee. No. 98-35617 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 7, 1999Filed April 6, 2000 COUNSEL: Steve W. Berman, Hagens & Berman, Seattle, Washington, for the...
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Opinion The state and federal Constitutions both guarantee criminal defendants the right to a speedy trial (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15, cl. 1), and both guarantees operate in state criminal prosecutions (see Klopfer v. North Carolina (1967) 386 U.S. 213, 222-223 [87 S.Ct. 988, 993-994, 18 L.Ed.2d 1] [holding that the 6th Amend.’s speedy trial guarantee applies to sta...
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Opinion This cause involves an appeal, which is automatic, from a judgment including a sentence of death against Tauno Waidla. A separate cause involves a similar appeal from a similar judgment against Peter Sakarias. (People v. Sakarias (2000) 22 Cal.4th 596 [94 Cal.Rptr.2d 17, 995 P.2d 152].) 1 I. Procedural History On November 28, 1988, on behalf o...
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Opinion Defendant William R. Douglas, who is blind and suffers from other permanent disabilities, falsified information to obtain government benefits for in-home health services that were not in fact provided to him. The total amount of overpayment was about $4,770. Defendant entered a plea of no contest to one count of grand theft (Pen. Code, § 487) and one count of obtaining more t...
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Dissent by Judge REINHARDT; Dissent by Judge KOZINSKI; Dissent by Judge WARDLAW. Rehearing en banc denied. with whom PREGERSON, KOZINSKI, and WARDLAW, Circuit Judges, join: Because I believe that neither the Constitution nor human decency permits us to deny a condemned man his last rites based on the implausible security concerns advanced by the state, I dissent from the refusal to rehear this ca...
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246 B.R. 617 (2000) In re Carol Faye GARNER, Debtor. Carol Faye Garner, Appellant, v. Mark Shier, Appellee. BAP Nos. CC-99-1432-KBMa, CC-99-1540-KBMa, Bankruptcy No. SA 98-19445 LR. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted January 20, 2000. Decided March 22, 2000. *618 *619 L. Eugene Hallsted, Fountain Valley, CA, for Carol Faye Garner, appellant. W. Rod...
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Opinion Avant! Corporation (hereafter, Avant) seeks a writ of mandate to vacate the order of the trial court denying Avant’s motion to stay civil proceedings or to stay discovery pending the disposition of a related criminal case. We deny the petition. Background. On July 15, 1998, real party in interest Eric Nequist filed a civil complaint against Avant for defamation, int...
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Petitioner Kim Ho Ma is an alien who left his native land, Cambodia, as a refugee at the age of two and has resided in the United States as a legal permanent resident since he was six. At the age of seventeen he was involved in a gang-related shooting, and was convicted of manslaughter. After completing his prison sentence some two years later, he was taken into INS custody and ordered removed bec...
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Opinion Appellant, Glen Foster Green, appeals from a sustained petition and a commitment to Atascadero State Hospital entered after a jury found him to be a sexually violent predator (SVP) within the meaning of California’s Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.).1 A petition was filed October 6, 1997, seeking to have appellant declared a SVP. On November 14, 1997, the...
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Opinion Devon C., a minor, appeals from the order of the juvenile court making him a ward of the court and placing him home on probation. Devon was made a ward of the court after admitting he possessed a firearm and it was wrong to do 1 The only issue presented is whether the trial court erred when it denied Devon’s motion to suppress the firearm he admitted possessing. The facts giving ris...
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Opinion In this appeal we consider whether the Legislature ran afoul of the supermajority requirement of article XIII A of the California Constitution when it imposed a flat fee per environmental review by the Department *939 of Fish and Game (Fish and Game). More precisely, we must determine whether the exactions imposed by section 711.4 of the Fish and Game Code 1 ...
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Opinion Plaintiff and appellant Chuck Dunn was a teacher employed by defendant and respondent Jurupa Unified School District (District). As a result of charges brought in 1993, the District terminated plaintiff. In 1997, four years later, plaintiff filed an action against the District and former District school board member David Barnes, for alleged violation of the Political Reform Act (...
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208 F.3d 1122 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.GERMAN ESPINOZA MONTERO-CAMARGO, Defendant-AppellantUNITED STATES OF AMERICA, Plaintiff-Appellee,v.LORENZO SANCHEZ-GUILLEN, Defendant-Appellant. Nos. 97-50643, 97-50645 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 10, 1998Filed May 13, 1999Amended August 25, 1999Rehear...
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208 F.3d 1116 (9th Cir. 2000) HOEUN YONG, Petitioner-Appellant,v.IMMIGRATION AND NATURALIZATION SERVICE,OPINION Respondent-Appellee. No. 99-17242 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2000Filed April 11, 2000 COUNSEL: Daniel Broderick and Meredith A. Linsky, Assistant Federal Public Defenders, Sacramento, California, for t...
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Opinion Plaintiff Marjorie Pang appeals from the judgment of dismissal entered after the court granted its own motion for judgment on the pleadings on her claim for violation of her right to take a family care leave. (Gov. Code, § 12945.2.) For the reasons set forth below, we affirm the judgment. Procedural History Plaintiff and appellant Marjorie Pang sued her employer, defendant and respo...
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*970 Opinion Faced with multiple lawsuits, a company tendered the defense of the actions to one of its insurers. After paying defense costs and indemnity, the insurer looked to an alleged coinsurer for contribution. The coinsurer refused to contribute on the ground that it had not been asked to participate in the litigation, by tender of defense or otherwise. This lawsuit followe...
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208 F.3d 1144 (9th Cir. 2000) PHILIP WILLIAMSON; ITZIK RIEF;RONDA KIRLIN; THOMAS PAINTER,Plaintiffs-Appellants,v.GENERAL DYNAMICS CORPORATION,OPINION Defendant-Appellee. No. 98-55783 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 9, 1999Filed April 12, 2000 [Copyrighted Material Omitted][Copyrighted Material Omitted] COUNSEL: Mic...
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Opinion 1. Introduction Plaintiffs Charles Ivan Jones and Shirley L. Jones appeal summary judgment entered in favor of defendant Union Pacific Railroad Company. Plaintiffs, whose home is adjacent to Union Pacific’s railroad tracks in Yermo, filed a-nuisance action against Union Pacific for allegedly causing needless train noise and engine fumes. Union Pacific moved for summar...
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Opinion Larry Small, Warden of Calipatria State Prison, petitions for writ of mandate and/or prohibition after the court issued two orders that the warden claims unduly interfere with his authority and duty to safely operate a maximum security facility. The first order requires Small to alter an attorney visiting room specially constructed for inmate Joseph Barrett, who is charged with the capita...
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Opinion This case presents two principal issues: (1) Did a fee imposed by the County of Sacramento (the County) upon a nonprofit organization based on a percentage of the gross receipts of bingo games violate California’s Constitution? (2) Does Penal Code section 326.5 prohibit a nonprofit organization from using bingo proceeds to pay attorney fees associated with the bingo operation? We conclude ...
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Gil llano Colmenar petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for asylum and withholding of deportation. Colmenar argues that the BIA’s decision is not supported by substantial evidence and that he was denied a full and fair hearing before the Immigration Judge (“IJ”). We agree that the IJ denied Colmenar a full and fair hearing and that this pre...
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210 F.3d 973 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.BENJAMIN CORONA-GARCIA, Defendant-Appellant. No. 98-50568 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 2, 1999Filed April 14, 2000 COUNSEL: Richard M. Barnett, San Diego, California, for the defendant appellant. Bruce R. Castetter, Assistant United Stat...
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Petitioner Donald Washington appeals from the district court’s dismissal of his federal habeas petition on grounds of procedural default. We granted a certifícate of appealability on the question whether, in 1994, the California Supreme Court regularly and consistently applied the procedural bar rules established in In re Swain, 34 Cal.2d 300, 209 P.2d 793 (1949), and In re Dixon, 41 Cal.2d 7...
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ORDER AMENDING OPINION AND DENYING PETITION FOR PANEL REHEARING AND REHEARING EN BANC The slip opinion filed December 30, 1999 [198 F.3d 1161], is amended as follows: At slip opinion page 14995 [198 F.3d at 1162] by changing “2Ql.l(b)(l)(A)” to “2Q1.2(b)(l)(A)”. At slip opinion page 14998 [198 F.3d at 1164] by changing “2Ql.l(b)(l)(A)” to “2Q1.2(b)(l)(A)”. At slip opinion page 14999 [198 ...
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Opinion Plaintiffs Michele Thatcher and Larry Thatcher appeal summary judgment entered against them and in favor of defendant Lucky Stores, Inc. Plaintiffs contend the trial court abused its discretion in denying their ex parte application for a continuance of defendant’s summary judgment motion. Plaintiffs further argue that the trial court erred in granting summary *1083 ju...
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We must decide whether the doctrine of equitable tolling can be applied to the 180-day deadline for the Internal Revenue Service to file a proof of claim against a taxpayer in bankruptcy proceedings. I On September 10, 1996 (day 0),1 Charles and Opal Gardenhire (“the Gardenhires”) filed in the Bankruptcy Court for the Central District of California a petition for relief under Chapter 13 of the Ban...
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Anticipating testimony by an Immigration and Naturalization Service inspector that Ruben Fuentes-Cariaga looked nervous when he was stopped at the border and that his nervousness was an important factor in referring him to secondary, Fuentes-Cariaga sought to present evidence by a non-percipient INS inspector that she would not infer consciousness of guilt from a driver’s nervousness, as people c...
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ORDER Appellant, Richard Nathaniel Mattarolo, requests the Court to recall its mandate and vacate and reissue the amended decision in this case filed December 30, 1999, for the reason that his counsel, an assistant federal defender, admittedly neglected to file a timely Petition for Certiorari with the United States Supreme Court on his behalf after requested to do so by the Appellant. The Op...
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ORDER We dismiss without prejudice the appeal for lack of jurisdiction because the district court’s order vacating the judgment was not a final order. See 28 U.S.C. § 1291. A final order is a “decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any other court of the Ninth Circuit, ex *1122 cept to the extent adopted by the en banc court. ...
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94 Cal.Rptr.2d 597 (2000) 22 Cal.4th 771 996 P.2d 699 Robin MOSHONOV, Plaintiff and Respondent, v. John D. WALSH et al., Defendants and Appellants. No. S076103. Supreme Court of California. April 17, 2000. John D. Walsh, in pro. per., for Defendant and Appellant. Law Offices of Thomas J. LaLanne and Thomas J. LaLanne, San Francisco, for Defendants and Appellants Eladia Ganulin and Marty Ganulin. ...
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Opinion Like the companion case of Moshonov v. Walsh (2000) 22 Cal.4th 771 [94 Cal.Rptr.2d 597, 996 P.2d 699] (Moshonov), this case *784presents a question as to whether a binding arbitration award may be judicially corrected to award a party attorney fees the arbitrator declined to provide. Although the facts of the two cases differ significantly, we conclude the award here, like that in Moshono...
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Opinion This is an appeal from a judgment in favor of respondent City of Emeryville (the City) following a court trial on a complaint alleging employment discrimination on the basis of age under Government Code section 12900 et seq. 1 Appellant Frances Muzquiz contends the trial court committed prejudicial error, both by adopting an erroneous *1110 burden of proof ...
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Opinion I. Statement of the Case A jury convicted defendant Anthony Williams of four counts of second degree armed robbery and being a felon in possession of a firearm. (Pen. Code, §§211, 212.5, subd. (c), 12021.1, subd. (a), 12022, subd. (a).) 1 In addition, the jury found that defendant committed the offenses while on parole for a serious or violent felony...
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Jenny Manybeads et al., (Manybeads) appeal the dismissal by the district court of their suit against the United States. We affirm the dismissal for want of a necessary and indispensable party, the Hopi Tribe. PROCEEDINGS The past history of this litigation has recently been set out in Clinton v. Babbitt, 180 F.3d 1081 (9th Cir.1999). We need not repeat what we said there. Suffice to say that Manyb...
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Randy M. Pope appeals the judgment of the district court following a second trial in Pope’s suit against Man-Data, Inc., d.b.a., Pacific Coast Credit (PCC). Pope sought damages for collection abuses by PCC in violation of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. and the Oregon Unlawful Debt Collection Practices Act (UDCPA), ORS §§ 646.639-646.656 (1999). The result...
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Opinion Utility Cost Management (UCM) filed a complaint against the East Bay Municipal Utility District (EBMUD) seeking a refund of sums paid by the Berkeley Unified School District (BUSD) for certain water and wastewater fees. EBMUD filed a motion for summary judgment arguing that UCM’s claim was barred, as a matter of law, by the 120-day statute of limitations contained in Government Code sec...
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Opinion On this consolidated appeal, Pacific Custom Pools, Inc., challenges the trial court’s granting of summary judgment based on the failure of Pacific Custom Pools to substantially comply with the contractor’s licensing requirements, and Turner Construction Company questions the court’s denial of its attorney’s fees. We hold that the trial court properly granted summary judgment but e...
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*1276 Opinion In this case we hold an attorney-employer has standing to appeal a monetary sanction imposed on an attorney-employee. We also hold imposing a monetary sanction for not paying a previous monetary sanction was not an abuse of discretion. Facts and Proceedings Below At a mandatory settlement conference, the trial court imposed a sanction in the amount of $200 on plaintiff’s att...
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Opinion At the request of plaintiff Waste Management of Alameda County, Inc. (Waste Management), the trial court entered a judgment styled a peremptory writ of mandate. The judgment contained the following directives: (1) defendants California Integrated Waste Management Board (the Waste Board) and County of Alameda (the County) were ordered to set aside their approvals of a solid waste facility ...
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Defendant Allen David Daniel (“Daniel”) appeals the revocation of his supervised release. This appeal raises the question of whether a district court must make written findings in support of a decision to revoke supervised release and also requires us to review the sufficiency of the district court’s oral findings in this case. We hold oral findings made on the record satisfy due process and othe...
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Defendant Ruben Zuno-Arce is in custody following his 1992 conviction stemming from the kidnapping and murder of DEA Agent Enrique Camarena and his pilot, Alfredo Zavala-Avelar. Defendant appeals the district court’s denial of his motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. On de novo review, see United States v. Span, 75 F.3d 1383, 1386 (9th Cir.1996), we affirm. ...
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Opinion The Meyers-Milias-Brown Act (Gov. Code, §§ 3500-3510,1 hereinafter MMBA) imposes some structure to labor relations between employees and public agencies while allowing a considerable degree of local regulation. But where the MMBA sets a standard, local divergence is not allowed. This appeal involves such a divergence. Section 3507.3 establishes a specific mechanism for resolving disputes ...
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Opinion A jury convicted James Palmore of forcible rape (Pen. Code, 1 § 261), forcible sodomy (§ 286), and robbery (§ 211). The jury found true the special allegation that Palmore committed the rape and sodomy offenses during the commission of a burglary of a commercial establishment, which was then closed to the public (§ 667.61, subds. (b), (c) & (e)(2)). The court sentenced ...
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94 Cal. Rptr. 2d 801 (2000) 79 Cal. App. 4th 1318 Harold GRIFFITH, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ, Defendant and Respondent; John Hutchinson, Intervenor and Respondent. No. H019474. Court of Appeal, Sixth District. April 18, 2000. Rehearing Denied May 15, 2000. Review Denied July 19, 2000.[*] *802 Harold Griffith, in pro. per.; and Douglas B. Allen, San Jose, for Plaintiff and A...
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210 F.3d 999 (9th Cir. 2000) In re: COOL FUEL,INCORPORATED,Debtor.COOL FUEL, INCORPORATED, a California corporation, Appellant,v.BOARD OF EQUALIZATION OF THE STATE OF CALIFORNIA,Appellee. No. 98-56092 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 11, 2000Filed April 21, 2000 COUNSELL: James M. Harris, Thomas P. Hanrahan and Thomas E...
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The Bankruptcy Code authorizes the United States Trustee to collect “quarterly fees” from a party who files for Chapter 11 bankruptcy. See 28 U.S.C. § 1930(a)(6). The quarterly fee is calculated according to the amount of disbursements to creditors during each quarter of the debtor’s case. The question presented for our review is whether disbursements by a reorganized debtor after confirmation of ...
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Harry and June Mitchell (“Mitchells”) filed ■ an adversary complaint in their bankruptcy case against the California Franchise Tax Board (“FTB”) and the California Board of Equalization (“Board”) (together, the “State”) to determine the amount and dischargeability of taxes owed to the State. The Mitchells also asserted state and federal claims, alleging, inter alia, violations of the Fourteenth Am...
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Opinion I Introduction In this case we decide the juvenile court did not abuse its discretion when it granted the petition of a school district to disclose confidential information from a juvenile court file that a schoolteacher had sexually abused his minor daughters. Appellant, Robert G. (Father) was a schoolteacher. The juvenile court sustained a petition alleging that he had sexually abused hi...
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Opinion A tort cause of action for negligent spoliation of evidence cannot be maintained. We believe that this conclusion follows inexorably from two recent decisions from our Supreme Court: Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 [74 Cal.Rptr.2d 248, 954 P.2d 511] (Cedars-Sinai), holding that no tort cause of action lies for first party ...
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Opinion A jury convicted Patrick John Waples of kidnapping a minor to commit a lewd and lascivious act (Pen. Code, § 207, subd. (b)), *1392eight counts of committing a lewd and lascivious act on a minor (Pen. Code, § 288, subd. (a)) and five counts of forcibly committing a lewd and lascivious act on a minor (Pen. Code, § 288, subd. (b)). As to the convictions involving victim Ashley, the jury furt...
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Dennis Mark La Crosse appeals the district court’s dismissal of his petition for a writ of habeas corpus, claiming that the California Supreme Court’s denial of his claim in 1996 did not act as a bar to federal habeas review. We have jurisdiction pur *471 suant to 28 U.S.C. § 2258 and reverse and remand. 2 I. On April 21, 1983, Dennis Mark La Crosse was convicted of one count of first-deg...
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ORDER Upon consideration of the opinion of the Supreme Court we vacate our opinion in Ortega v. Roe, 160 F.3d 534 (9th Cir.1998). This case is remanded to the district court for proceedings consistent with the-opinion in Ernest C. Roe, Warden v. Lucio Flores-Ortega, — U.S.-, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). The clerk is directed to issue the mandate forthwith. ...
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*3 Opinion Zee Medical Distributor Association, Inc. (Association) appeals from a judgment of dismissal of its declaratory relief action against respondent Zee Medical, Inc. (Zee). The superior court entered the judgment after granting Zee’s motion for summary adjudication on the key cause of action of the Association’s complaint, ruling that the distribution agreements between Z...
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We must decide whether prior convictions based on nolo contendere pleas can be admitted into evidence for impeachment purposes. We must also determine, in this federal civil rights action alleging excessive force through the City’s use of a police dog, whether the district court was required to instruct the jury as to alternatives to the use of force or the existence of probable cause to believe ...
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210 F.3d 1008 (9th Cir. 2000) WILLIAM E. HARVEY, Plaintiff-Appellant,v.DAVID F. WALDRON, individually and in his official capacity as an investigator for the Montana Department of Revenue; STATE OF MONTANA, DEPARTMENT OF REVENUE; JESSE JOHNSON, JR.,individually and in his official capacity as a Detective in the Billings Police Department; DAVE COMFORT, individually and in his official capacity...
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Appellants Hitachi Data Systems Corp. (“Hitachi”) and its insurer, Nissan Fire & Marine Insurance Co. Ltd. (“Nissan”), sued appellees Fritz Co., Inc. (“Fritz”) and Tower Air, Inc. (“Tower”) under the Warsaw Convention for recovery of damages arising out of the total loss*of goods carried by Fritz and Tower. The district court granted summary judgment for Fritz and Tower, and Hitachi and Nissan app...
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*1099ORDER Judge Kleinfeld voted to grant the petition for rehearing and the petition for rehearing en banc. Judge Hawkins voted to deny the petition for rehearing and the petition for rehearing en banc. Judge Schwarzer voted to deny the petition for rehearing and recommended denial of the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. An act...
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*24 Opinion Loren Reeves (applicant), the chief engineer at one of California’s state prisons, filed a claim for workers’ compensation benefits, asserting he is entitled to a rebuttable presumption of industrial causation of heart trouble applicable to California Department of Corrections (CDC) employees “having custodial duties.” (Lab. Code, § 3212.2; further section references are to the La...
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Opinion Plaintiffs Mark and Cynthia Mitchell appeal from a judgment for defendant Blue Bird Body Company in an action brought under the Song-Beverly Consumer Warranty Act. (Civ. Code, § 1790 et seq.; all further statutory references are to the Civil Code unless otherwise noted.) The question presented is whether persons who purchase a new motor vehicle on credit can recover from the manuf...
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209 F.3d 1122 (9th Cir. 2000) LLOYD W. CRAMER; DANIEL E. LIPICH, Plaintiffs-Appellants,v.CONSOLIDATED FREIGHTWAYS, INC., Defendant-Appellee.GUILLERMO ALFARO, Plaintiff,andDENNIS R. BLEVINS; RAY R. CASIO; STEVE CUNNINGHAM; RICK DEWOODY; ALEJANDRO GARCIA; DAVID V. GARCIA; RAUL C. GARCIA; JAMES A. GRECO; BRUCE A. HARVEY; JOHN K. HATFIELD; ROBERT W. HATFIELD; LEE A. INGRAM; ZENO KING, JR.; JOHN ...
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210 F.3d 1017 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.THOMAS ALBERTO ROMERO-AVILA, DefendantAppellant. No. 99-50289 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 10, 2000Filed April 26, 2000 [Copyrighted Material Omitted] COUNSEL: Gary P. Burcham (argued) and Michelle D. Anderson, Federal Defenders of San...
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Mattel, Inc., produces and markets, among other products, the well-known line of Barbie dolls to which it added in 1998 the “Pearl Beach Barbie.” Unbeknownst to Mattel, Pearl Beach was the trade name under which plaintiff Katherine Walter had done business as a commercial illustrator since 1978. Having learned of Pearl Beach Barbie, plaintiff brought this action alleging misappropriation of her...
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Opinion In this appeal we address what is apparently an issue of first impression: do the provisions of Family Code section 2120 et seq., *97for setting aside a dissolution judgment on grounds of mistake, fraud or duress have any effect on the time for filing a notice of appeal from the underlying dissolution judgment? Despite the fact appellant Sandra Eben-King never filed a timely notice of app...
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Kenneth P. Dows (“Dows”), a Washington prisoner convicted of first-degree rape, appeals from the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Dows argues that his attorney, Robert Egger (“Egger”), was ineffective because Egger was allegedly suffering from the effects of Alzheimer’s disease at the time of Dows’s trial. Dows claims that Egger was ineffective...
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211 F.3d 475 (9th Cir. 2000) In re: R.B.B., INC., d/b/a Ferrari of Los Gatos Debtor.FERRARI NORTH AMERICA, INC., Appellant,v.CHARLES E. SIMS, Trustee; OFFICIAL COMMITTEE OF UNSECURED CREDITORS, Appellees. No. 99-16059 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 16, 2000Filed April 27, 2000 COUNSEL: Dale L. Bratton, Heller Ehrman Whi...
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Opinion by Judge MANELLA; Partial Concurrence and Partial Dissent by Judge KLEINFELD. Appellants Jeffrey M. Herman and Stuart S. Mermelstein are attorneys with the law firm of Herman Grubman & Moore in Miami, Florida. They appeal the district court’s order (“Order dated June 3, 1998”), barring both attorneys from appearing pro hac vice before Malcolm F. Marsh, District Judge for the District of O...
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210 F.3d 1025 (9th Cir. 2000) MURRAY WEINER,Plaintiff-Appellant,v.SAN DIEGO COUNTY, Defendant-Appellee. No. 98-55752 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 9, 1999Filed April 27, 2000 COUNSEL: Thomas R. Laube, Sandler, Lasry, Laube, Byer & Valdez, San Diego, California, for the plaintiff-appellant. Deborah Peterson, D...
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Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge THOMAS. Prior Report: 207 F.3d 599. ORDER Part VIII B of the opinion, concerning front pay damages, has been amended. OPINION Defendant, Johnson and Johnson Consumer Products, Inc. (hereinafter CPI), a subsidiary of Johnson & Johnson, appeals the district court’s decision and order entering judgment for plaintiff, Jennif...
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*231Opinion This is an appeal from an order granting defendants’ motion to stay the action on grounds of inconvenient forum. We affirm. I. Background A. The Parties Appellants are Drs. Eric E. Bugna, John C. Kofoed, Santi Rao and David L. Guzman; The Specialists Orthopedic Medical Corporation (SOMC), a small medical clinic through which the doctors operate their orthopedic practice; and The Speci...
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Opinion This is an appeal from summary judgment entered in a trademark infringement and unfair competition case involving funeral businesses owned and operated by relatives of William Duggan, founder of appellant Duggan’s Funeral Service, Inc. (DFS). We affirm the judgment in favor of respondent Duggan’s Serra Mortuary, Inc. (Serra) as well as the award of attorney fees, as modified. ...
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Opinion Does federal law preempt a state law cause of action brought under California’s unfair competition law (UCL), Business and Professions Code section 17200 et seq.,1 where a brokerage firm is alleged to have violated its duty to its customers, by not executing their orders for stock sales in a fair and timely manner, and by instead “trading ahead” for its own benefit before processing those...
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Opinion Introduction The People appeal from the judgment dismissing with prejudice the petition (Welf. & Inst. Code, § 602) filed against defendant Humberto O., after the trial court granted defendant’s motion to suppress (Welf. & Inst. Code, § 700.1) a dagger found during the search of his backpack. We hold *240 that the search of the backpack worn by defendant at the t...
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Opinion James G. filed a petition for writ of mandate directing the respondent, the Superior Court of Los Angeles County (Superior Court) to vacate its order denying his request for the appointment of a specified expert and to order the appointment of the expert. In the unpublished part I of this opinion,1 we conclude Superior Court abused its discretion in denying James G.’s request and grant th...
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Opinion Introduction In this case Janice Sakotas, a desk clerk and sometimes substitute manager for Motel 6, filed a petition for writ of review alleging that the medical-legal report upon which the Workers’ Compensation Appeals Board (WCAB) relied in denying workers’ compensation benefits for an alleged psychiatric injury was not substantial evidence. In addition, Sakotas contends t...
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Opinion Plaintiff and petitioner Edward Vasquez petitions for a writ of mandate ordering respondent court to vacate its order compelling arbitration of his action against his employer, defendant and real party in interest Los Angeles County Fair Association (Association). Vasquez is a member of a union that has entered into a collective bargaining agreement (the CBA) with the Association. The C...
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Opinion Defendant Rudy Jimenez was convicted after a jury trial of two counts of violating subdivision (a)(3) of Penal Code section 2691 and of violating section 288, subdivision (a) (forcible sodomy with a person under the age of 14 and more than 10 years younger than the accused, and lewd and lascivious conduct upon a child under the age of 14). He was sentenced to consecutive terms of 15 years ...
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Opinion We hold that a reasonable, good faith mistake about the age of a 14- or 15-year-old victim is not a defense to a charge under Penal Code section 288, subdivision (c)(1). A Stanislaus County jury convicted 28-year-old appellant, Ulisses Paz, of, among other conduct, lewd or lascivious acts upon 14-year-old H.G. (Pen. *295 Code, 1 § 288, subd. (c)(1) 2 [victim 14 or 15 years old a...
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210 F.3d 1036 (9th Cir. 2000) JOHNNIE L. COCHRAN, JR., Plaintiff-Appellant,v.NYP HOLDINGS, INC., a Delaware Corporation; ANDREA PEYSER, Defendants-Appellees. No. 98-56536 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 4, 2000Filed April 28, 2000 COUNSEL: Barry B. Langberg, Deborah Drooz (argued), Stroock & Stroock & Lavan, Los Ang...
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In September 1995, Plaintiff George R. Tosello filed a claim for a refund of more than $25,000 in personal income tax that he had paid in 1984. The Internal Revenue Service (IRS) sent Plaintiff a notice of disallowance in December 1995. Plaintiff filed suit, challenging that disallowance, in January 1998. Defendant United States moved for summary judgment on the ground that Plaintiffs suit was un...
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Opinion Plaintiffs and appellants Barbara Beach-Courchesne, Norman Beach-Courchesne, Joyce K. Birrell, Kathryn Irene Brown, David R. Busse, Mary F. McCormick-Busse, Frank J. Dursa, Michael M. Graves, Stephen E. Nice, Janet S. Nice, Rev. Dr. Larry Rhodes and Guillermo Romero (plaintiffs) appeal a judgment denying their petition for writ of mandate, wherein they sought to set aside the deci...
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*382 Opinion Introduction Plaintiff and appellant Christina Davis appeals from the summary judgment entered in favor of defendant and respondent Melody Marin, D.C. The issue on appeal is whether Dr. Marin was timely added as a defendant in the lawsuit. Concluding she was timely added as a defendant, we reverse the summary judgment. Factual and Procedural Background 1 1. Prelitigation...
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Opinion In 1986, Robert Rosenkrantz was convicted of second degree murder, with a gun use allegation found true. He was *412sentenced to state prison for a term of 15 years to life, plus 2 years for his use of a gun. Following a series of hearings at which Rosenkrantz was found “unsuitable” for parole, he filed a petition for a writ of habeas corpus in which he asked the superior court to compel ...
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95 Cal.Rptr.2d 299 (2000) 80 Cal.App.4th 372 The PEOPLE, Plaintiff and Respondent, v. Sergio Alfred RODRIGUEZ, Defendant and Appellant. No. B126896. Court of Appeal, Second District, Division Three. April 27, 2000. Rehearing Denied May 15, 2000. Review Denied August 9, 2000. *300 David H. Goodwin, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief A...
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Opinion I. Introduction The question before us is whether the assessment appeals board erred in its methodology in valuing certain contaminated commercial real property *311 in Irvine in the early 1990’s. The board took what it determined to be the fair market value of the property if unpolluted, then deducted the cost of cleanup, but next added back in expect...
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Opinion This is the third appeal arising out of a dispute over developer fees and obligations between appellant N. T. Hill (Hill) and respondent City of Clovis (Clovis). Developers Insurance Company (Developers), which issued the construction bond in this case, is also a party to the appeal. The two prior appeals (Nos. F025972 and F026809) were dismissed on procedural grounds on April 21,...
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Opinion In this petition for a writ of review, we are called upon to determine whether a licensed physician in California may use medical assistants to render adjunct services involving concepts of physical therapy to a patient; the Workers’ Compensation Appeals Board (WCAB) found such treatment illegal per se because such services may only be rendered personally by the physician, a licen...
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delivered the opinion of the Court. Under the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq. (1994 ed. and Supp. Ill), States and their political subdivisions may compensate their employees for overtime by granting them compensatory time or “comp time,” which entitles them to take time off work with full pay. §207(o). If the employees do not use their...
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In 1980, defendant Stanford University hired plaintiff Han Giok Han as a cook in a Food Service Worker (FSW) Level I position. In 1981, Plaintiff was promoted to FSW II and, by 1983, he held a position as an FSW IV. In 1990, Plaintiff applied unsuccessfully for a vacant FSW V position. After pursuing appropriate administrative remedies, Plaintiff filed an action alleging age and race discriminatio...
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210 F.3d 1041 (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee,v.JERRY BOBBY REEVES, Defendant-Appellant. No. 99-30158 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 10, 2000Filed May 1, 2000 COUNSEL: Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant. Jeffrey J. Kent, A...
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Opinion In this case we are called upon to construe the breadth of the immunity from civil liability conferred by Welfare and Institutions Code section 15634 1 both for those who report suspected elder abuse and those who facilitate access to the victims of suspected abuse. The section provides that “No . . . health practitioner . . . who reports a known or suspected instance o...
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Opinion The People appeal from the trial court’s order recusing the entire San Francisco City and County District Attorney’s Office from participating in this case. They contend that the trial court abused its discretion and applied an incorrect legal standard in ordering recusal. We affirm. Factual Background On November 16, 1996, Cuong Tran was shot to death outside the Pierce Street Annex at 31...
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Opinion When appellant was divorced from his wife, he learned for the first time that he was not the biological father of the child bom during their marriage. After disclaiming all parental rights to the child in the dissolution proceeding, appellant sued his wife’s doctor as the true biological father. In a contemporary interpretation of an ancient grievance, appellant alleged that the d...
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Opinion With specified exceptions, state workers are governed by the civil service system provided by the California Constitution. (Cal. Const., art. VII, § 1, subd. (a); see Professional Engineers v. Department of Transportation (1997) 15 Cal.4th 543, 548 [63 Cal.Rptr.2d 467, 936 P.2d 473].) In 1980, as part of the State Civil Service Act (Gov. Code, § 18500 et seq....
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Opinion Plaintiff Mohsen Zabetian appeals from the judgment denying his petition for a writ of mandate to set aside the order of the Medical Board of California (the Board), which imposed a two-year probationary period for two “[r]epeated negligent acts.” (Bus. & Prof. Code, § 2234, subd. (c).) 1 Zabetian claims the phrase “[r]epeated negligent acts,” as used in section 2234,...
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Opinion Statement of the Case A single-count information filed on August 12, 1998, in Kings County Superior Court charged appellant Lou Tong Saephanh with solicitation of *453 murder in violation of Penal Code 1 section 653f, subdivision (b). On October 7, 1998, after a two-day jury trial, appellant’s motion for acquittal pursuant to section 1118.1 was denied,...
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I agree with the majority’s conclusions that Coleman was not prejudiced by the concealment of the Hemastix and bloody print evidence and that the commutation instruction was constitutionally deficient under Boyde v. California, 494 U.S. 370, *1054380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990). I dissent, however, from the majority’s determination that the commutation instruction had a “substantial an...
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OVERVIEW Upon receiving an anonymous tip, the government investigated Robert Elzay De-pew, the defendant-appellant, for illegally growing marijuana in his home. As part of its investigation, the government used a thermal imager to determine whether De-pew’s home was emitting an unusual amount of heat. The government used the information gleaned from the thermal im-ager, as well as other informa...
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When does a federal judgment of conviction become final? We must decide whether the one-year limitations period for filing a motion to attack a conviction under 28 U.S.C. § 2255 runs from the date on which the court of appeals affirms the judgment or ninety days later when the time for filing a petition for a writ of certiorari expires. I On November 10, 1994, Felipe Arrevalo Garcia (...
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Snoring Relief manufactures SnorBan, an anti-snoring mouthpiece that it seeks to sell without a prescription. The government brought this in rem seizure action, claiming that SnorBan cannot be sold without a prescription because it is a Class III adulterated device under the Federal Food, Drug, and Cosmetic Act (FDC Act), 21 U.S.C. § 351(f)(1)(B); SnorBan lacked pre-market approval; ...
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*571Opinion The state initiates civil proceedings to declare a person a sexually violent predator (SVP). In exchange for his deposition testimony on certain matters, he receives transactional immunity for those matters and “any of the matters that he may testify to.” Here we conclude that he may not be prosecuted for a crime relating to his deposition testimony. Facts The People initiated proceed...
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Opinion Introduction Plaintiff Ellen T. Jones appeals from a judgment entered on a jury verdict in favor of defendant Paul F. Moore in her action for legal malpractice arising out of defendant’s legal representation in an underlying marital dissolution action. Plaintiff contends on appeal that the trial court erred in excluding at trial certain testimony of her expert witness on the ...
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Opinion On January 31, 1995, 66-year-old plaintiff Reba Gregory broke her hip and shoulder in a fall at Beverly Manor, a nursing home in Yreka. Gregory, through her daughter and conservator, Christine Sandahl, sued defendants Beverly Enterprises, Inc. (BEI), Beverly Enterprises-Califomia, Inc., Beverly Health and Rehabilitation Services, Inc. (BHRS), and Chuck Williams for elder abuse under the E...
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Opinion Francisco Z. (Father) appeals from a judgment terminating his parental rights to his son, Matthew. Father contends the court erred by (1) denying his request for a hearing on his modification motion; (2) failing to make findings under the federal Indian Child Welfare Act (ICWA) (25 U.S.C. § 1912(f));2 and (3) failing to find a beneficial relationship existed between Father and Matthew. We...
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Plaintiff Clarissa Brady, acting as personal representative of the estate of her late son, sued the United States for wrongful death under the Federal Tort Claims Act (FTCA). She alleged that three doctors at a federal clinic were negligent in failing to prevent her son from committing suicide. After setting aside a clerk’s default against the government, the district court dismissed Plaintiffs...
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Petitioners Faramarz and Shelli Fayeghi filed a motion in the tax court to restrain collection of taxes. The tax court denied the motion, concluding that it lacked authority to restrain collection in the circumstances. The tax court’s conclusions of law and interpretation of the Internal Revenue Code are subject to de novo review. See Estate of Rapp v. Commissioner, 140 F.3d 1211, 1215 (9th Cir...
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GNC Franchising, Inc., challenges the district court’s refusal to enforce a forum selection clause in its franchise agreement with Charles B. Jones. The company contends that the court erred in denying its motion to either dismiss or transfer venue under 28 U.S.C. §§ 1404 and 1406. For the reasons assigned, we affirm. BACKGROUND GNC, a subsidiary of General Nutrition Companies, Inc., is franchisor...
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Plaintiffs brought suit in the United States District Court for the Northern District of California against the San Francisco Baseball Associates (“the Giants”), the Giants’ Latin America scout, Luis Rosa, and the Giants’ Minor League Coordinator, Jack Hiatt, for violations of federal and state law including sexual harassment, sexual battery, wrongful termination, fraud and conversion. The distric...
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Opinion by Judge SCHWARZER; Dissent by Judge REINHARDT Husband and wife Grachik and Anik Rostomian, eighty and seventy-seven years old, respectively, are natives and citizens of Armenia. They seek review of an order of the Board of Immigration Appeals (Board) dismissing their appeal from the immigration judge’s order denying their petition for asylum and withholding of deportation. They claim past...
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We must decide, in this car-chase criminal appeal, whether double-counting prevents a district judge from enhancing a defendant’s sentence for “endangering members of the public” and separately for endangering a person he knew to be a law enforcement officer. I On October 19, 1997, Carlos Hernandez-Sandoval (“Hernandez”) drove a pickup truck laden with 729.95 kilograms of marijuana into the U...
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211 F.3d 1121 (9th Cir. 2000) HEADWATERS FOREST DEFENSE, PLAINTIFF, AND MOLLY BURTON; VERNELL "SPRING" M. LUNDBERG; MICHAEL MCCURDY; ERIC SAMUEL NEUWIRTH; MAYA PORTUGAL; LISA MARIE SANDERSONNO. FOX; JENNIFER SCHNEIDER; TERRI SLANETZ; NOEL TENDICK, PLAINTIFFS-APPELLANTS,v.THE COUNTY OF HUMBOLDT, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA; HUMBOLDT COUNTY SHERIFF'S DEPARTMENT; DENNIS LEW...
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ORDER The Opinion filed February 17, 2000, slip op. 1915, and appearing at 203 F.3d 1151 (9th Cir.2000), is amended as follows: At slip op. 1922, delete the first paragraph under “II” up to footnote “4” and replace with the following: It is settled law that a district court’s decision to affirm, reverse or modify a determination of the Social Security Administration is reviewed ...
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Opinion Defendant Tuan Van Nguyen was convicted in 1997 of violating Penal Code1 section 209, subdivision (b), kidnapping for the purpose of robbery, otherwise known as aggravated kidnapping. We granted review and limited the issue on review to “whether the risk of harm required to elevate kidnapping to aggravated kidnapping may be a risk of psychological harm.” (Italics added.) As explained belo...
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*646 Opinion Introduction The Workers’ Compensation Appeals Board (WCAB) awarded attorney’s fees to a law firm for representation of an injured worker at a deposition by an unlicensed “hearing representative.” The petitioner and employer, 99 Cents Only Stores (Stores), contends the fees awarded were not based on substantial evidence and were excessive. 1 We agree ...
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*655 Opinion A workers’ compensation judge (WCJ) imposed a 10 percent increase or penalty on T. J. Waters’s temporary and permanent disability benefits pursuant to Labor Code 1 section 5814 because he found that each species of benefit was unreasonably delayed by defendants, Warner Constructors, Inc., and its insurance carrier, California Compensation Insurance Company. Defendants filed a p...
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ORDER DENYING REHEARING The panel, as constituted above, has voted unanimously to deny the petitions for rehearing. Judge W. Fletcher voted to deny the petitions for rehearing en banc, and Judges Thompson and Mollway so recommended. A judge of the court called for a vote on the petitions for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote for en...
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Opinion Following a bench trial, the trial court concluded that appellant Old Republic Insurance Company (hereafter Old Republic) had not secured a right of reimbursement against respondent FSR Brokerage, Inc., doing business as Fred Sands Realtors (hereafter FSR). Subsequently, a jury found that Old Republic had engaged in bad faith by asserting a claim for fraud against FSR. We reverse ...
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Opinion Plaintiffs California Apartment Association and San Joaquin County Property Owners Association appeal from an order denying their petition for a writ of mandate to compel the City of Stockton (Stockton) and named respondents to comply with Public Utilities Code section 10009.6.1 Section 10009.6 prohibits a municipal corporation which owns or operates a public utility2 from recovering from...
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Opinion A jury convicted defendant Shawn Regan Sewell of second degree felony murder (in the commission of the inherently dangerous felony of evading a pursuing peace officer while driving in willful or wanton disregard for safety); the jury also convicted defendant of causing death while evading a peace officer and evading a peace officer. (Pen. Code, § 187; Veh. Code, §§ 2800.2, 2800.3,...
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Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge O’SCANNLAlN. In 1983, Michael Jackson, while grossly intoxicated with phencyclidine (PCP), shot and killed West Covina Police Officer Kenneth Wrede. Several witnesses testified to Jackson’s bizarre behavior before the event, and to the brief encounter that ended in the shooting. Jackson concedes that he shot Officer Wrede, bu...
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We must decide whether the Younger abstention doctrine requires the dismissal of a federal lawsuit brought to vindicate rights under the Takings Clause of the federal Constitution because the plaintiffs analogous claims under state law were proceeding before a state court at the same time that the plaintiffs federal claim was to be considered by the federal court. I In July 1998, the City of Montc...
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We are asked to decide whether the sound of a package of marijuana being dropped into a vehicle is sufficiently distinctive to provide law enforcement officers reasonable suspicion to stop and search the vehicle. We conclude that it is not and reverse the defendant’s convictions. I. Background On December 23, 1997, agents of the Federal Bureau of Investigation (FBI) told Detective Daniel Jank...
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95 Cal.Rptr.2d 496 (2000) 22 Cal.4th 1060 997 P.2d 1153 Louis E. POTVIN, Plaintiff and Appellant, v. METROPOLITAN LIFE INSURANCE COMPANY, Defendant and Respondent. No. S061945. Supreme Court of California. May 8, 2000. Rehearing Denied June 28, 2000.[*] *498 Law Offices of Henry R. Fen ton, Henry R. Fenton and Dennis E. Lee, Los Angeles, for Plaintiff and Appellant. Catherine I. Hanson, San Franc...
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To decide this petition we must first determine the extent to which recent immigration statutes limit the jurisdiction of federal courts to consider challenges to removal orders brought by aliens who are removable because they committed certain criminal offenses. We hold that jurisdiction by way of petition for review of removal orders no longer exists, but that habeas jurisdiction remains. In ...
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212 F.3d 477 (9th Cir. 2000) THREE BOYS MUSIC CORPORATION, Plaintiff-Appellee,v.MICHAEL BOLTON, individually and d/b/a MR. BOLTON'S MUSIC, INC.; ANDREW GOLDMARK; NON-PAREIL MUSIC, INC.; WARNER-CHAPPELL MUSIC LIMITED; WARNER TAMERLANE PUBLISHING CORP.; WB MUSIC CORP.; and SONY MUSIC ENTERTAINMENT, INC., Defendants-Appellants. Nos. 97-55150, 97-55154 UNITED STATES COURT OF APPEALS FOR ...
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The appellant, The Vons Companies, Inc., (Vons), seeks coverage for a $10 million dollar payment it made to settle two lawsuits in which it was sued under re-spondeat superior for the tortious actions of one Gene Shirley. The lawsuits were brought by investors in a scheme who suffered losses due in part to Shirley’s fraud. We must decide, whether Vons was entitled to coverage under its employee...
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Opinion This writ proceeding presents a question of first impression relating to the newspersons’ shield law. (Cal. Const., art. I, § 2, subd. (b); Evid. Code, § 1070.) Petitioner Dan Post, a journalist, asks us to vacate an order of respondent superior court holding him in contempt for refusing to disclose “unpublished information,” claiming that the contempt order is prohibited by the shiel...
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OPINION The chapter 13 2 trustee and a member of her staff appeal from two orders of the bankruptcy court in which the court authorized lawsuits against them to proceed in state court. The bankruptcy court concluded that the trustee and her staff, who are alleged to have been negligent and to have caused debtor damage, are not immune from liability for their actions. We con...
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248 B.R. 368 (2000) In re CONSOLIDATED PIONEER MORTGAGE ENTITIES, Debtor. Pioneer Liquidating Corporation, Appellant, v. United States Trustee, Appellee. BAP No. SC-99-1158-MaPRy. Bankruptcy No. 91-00214-M11. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted September 22, 1999. Decided April 11, 2000. *369 *370 Howard J. Barnhorst, II, Barnhorst, Schreiner & ...
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OPINION After trial, the bankruptcy court entered judgment denying the discharge of all three debtors pursuant to §§ 727(a)(3) and (a)(5). Appellants assign error to the bankruptcy court’s factual findings, but have failed to provide an adequate record on appeal. We therefore AFFIRM. I.FACTS For approximately 20 years, brothers Chucri and Elias Massoud were general partners of E...
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OPINION After filing his chapter 7 1 petition, the debtor inherited money and real property in an amount greater than that of the available wildcard exemption under state law. Subsequently, the state legislature increased the wildcard exemption. This new limit exceeded the debtor’s total inheritance and he sought to exempt the entire amount. The trustee objected and the cou...
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A seventeen year old male, whom we shall call “Doe,” appeals his conviction for aggravated sexual abuse under 18 U.S.C. § 2241(c). Doe admits that he had sex with the 11-year old victim but claims that he believed she was over the age of thirteen. Doe argues that the district court incorrectly refused to allow him to present a “mistake of age” defense, claiming both a statutory and constitutional...
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*1111 Opinion The Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) 1 bars discrimination by employers on several enumerated bases. Under section 12926, subdivision (d) (the religious-entity exemption), the term “employer” specifically excludes “a religious association or corporation not organized for private profit.” 2 In McKeon v. M...
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Opinion California’s Insurance Commissioner appeals from a judgment holding he cannot revoke an insurance broker’s license for refusing to permit a warrantless search of the books and records the broker is required by law to maintain. We affirm. Facts and Proceedings Below The facts are not in dispute. The California Department of Insurance received an anonymous complaint a...
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Opinion Defendant Luis Ledesma Avila was found guilty at a court trial of six counts of sodomy against two victims and received 14 years in state prison. On appeal, he challenges the constitutionality of Penal Code section 286, subdivision (i),1 sodomy by use of drugs, and the sufficiency of the evidence to support conviction. Facts On separate occasions on February 1, 1998, and April 10, 1998, ap...
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Opinion In this case we hold that Family Code section 4908 does not divest a California court from making a spousal or child support order, even though a marriage dissolution is pending or has been granted in another state and the California spouse has not challenged the jurisdiction of that state, so long as the out-of-state proceeding does not raise an issue concerning such support.1 Factual and...
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Opinion Plaintiff, Deborah Pratt, has moved to dismiss the appeal of defendants, Gursey, Schneider & Co., Michael Miskei, and David Cantor. Plaintiff contends that defendants have waived the right to secure appellate review of a binding arbitration award. We agree. On June 2, 1992, Gursey, Schneider & Co. entered into an engagement agreement with plaintiff to provide her accounting services in co...
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Opinion In this writ proceeding we consider whether it is proper for the trial court to conduct an ex parte in camera hearing to determine whether the People have a valid claim of privilege as to the identity of percipient witnesses who are admittedly not confidential informants. We conclude that an in camera hearing is not proper on a claim of official privilege unless the party claiming the p...
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delivered the opinion of the Court. This case requires us to interpret several provisions of the 1934 Taylor Grazing Act, 48 Stat. 1269, 43 U. S. C. §315 et seq. The petitioners claim that each of three grazing regulations, 43 CFR §§4100.0-5, 4110.1(a), and 4120.3-2 (1998), exceeds the authority that this statute grants the Secretary of the Interior. We disagree and hold that the three regulations...
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95 Cal.Rptr.2d 701 (2000) 22 Cal.4th 1127 998 P.2d 403 Linda HAMILTON, et al., Plaintiffs and Respondents, v. ASBESTOS CORPORATION, LTD., Defendant and Appellant. No. S069596. Supreme Court of California. May 15, 2000. Rehearing Denied July 19, 2000.[*] *703 Parker & Bonis, James C. Parker, San Francisco; Stevens, Drummond & Gifford, Gary T. Drummond, Walnut Creek; Adams, Nye, Sinunu, Wal...
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We must once again examine the question whether a state court decision denying a petitioner’s ineffective assistance of counsel claim was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court — this time in light of the Supreme Court’s recent decision in Williams v. Taylor, — U.S. —, 120 S.Ct. 1495, 146 L.Ed.2d 389 (...
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Les Jankey appeals from the district court’s summary judgment in favor of Twentieth Century Fox Film Corporation (Fox) on his claim of disability discrimination under the public accommodations provisions of Title III of the Americans with Disabilities Act (the Act), 42 U.S.C. §§ 12181-12189. We must decide whether facilities that fall within one of the categories of public accommodations specifie...
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Alejandro Pacheco-Medina appeals his conviction and sentence for being found in the United States after he had been deported. See 8 U.S.C. § 1326. He claims that the evidence will not support the conviction because it shows that he did not actually manage to enter the United States. We agree and reverse for entry of an acquittal. BACKGROUND There can be little doubt that Pa...
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Opinion by Judge PREGERSON; Dissent by Judge NOONAN. At the center of this case is an illegal contract between plaintiff James Adler and various Nigerian individuals, including at least one government official, to convert Nigerian government funds for their personal use. The individual Nigerian defendants proposed the agreement to Adler, but did not perform their side of the bargain. Adler did pe...
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Perlito Capili Sulit and Estella Gonzales Sulit, natives and citizens of the Philippines, appeal the district court’s denial of their complaint for declaratory and injunc-tive relief and petition for writ of habeas corpus to prevent their deportation. We conclude that their due process and equitable estoppel claims are without merit, and affirm the judgment of the district court. I Th...
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Opinion In this writ proceeding, we consider (A) whether a cross-defendant is entitled to transfer a civil action to a neutral county pursuant to *952 Code of Civil Procedure 1 section 394, subdivision (a); (B) if so, whether the cross-defendant’s business presence in the forum county disqualifies it from transferring the case; and (C) assuming that the cross-compl...
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Opinion This case presents the question of whether plaintiffs, the surviving children of Girtha Mack, can state a cause of action against her former physician for either violation of the Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act or the Act, Welf. & Inst. Code, 1 § 15600 et seq.), or for intentional infliction of emotional distress. The trial cour...
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*981 Opinion Plaintiff Kamala Balasubramanian appeals a judgment in favor of defendants San Diego Community College District and its chancellor (together, District) after the court denied Balasubramanian’s petition for writ of mandate to have District reclassify her from an academic temporary employee to an academic contract employee. The court also granted summary judgment in fa...
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*1172 Opinion A jury convicted defendant of the first degree murder, robbery, and kidnapping of Edward Middleton and found true special circumstance allegations of robbery murder and kidnapping murder. The jury also found that defendant personally used a deadly weapon as to all counts, and that he had two prior second degree burglary convictions for which he served a prison term....
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Opinion We are here asked to decide whether a preexisting “standby charge” imposed by a water district for the purchase of water is exempted from the assessment procedures of Proposition 218. We conclude that it is. Facts and Procedural Background Respondents (hereinafter the parcel owners) own or lease land within the boundaries of appellant Chowchilla Water District (hereinaft...
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Rakesh Maini, his wife Jasmail Maini, and their sons Vikram and Arjum, petition for review of the Board of Immigration Appeals’ (BIA) decision dismissing their appeal from the denial of their applications for asylum and withholding of deportation. They claim that, beginning in 1984 until their flight from India in 1992 (when Vi-kram Maini fled) and 1993 (when the rest of the petitioners fled), ...
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Opinion Introduction Petitioners Diane L. Johnson and Ronald G. Johnson, along with their minor daughter Brittany L. Johnson, filed an action against real parties in interest, California Cryobank, Inc., Cappy M. Rothman, M.D., and Charles A. Sims, M.D., claiming that real parties failed to disclose that the sperm they sold came from a donor with a family history of kidney disease cal...
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Opinion Introduction Employer, Tenet/Centinela Hospital Medical Center (the hospital), seeks a writ of review directing the Workers’ Compensation Appeals Board (the WCAB) to vacate its order denying reconsideration of the findings and award of the workers’ compensation judge (WCJ) based on the report of Edward G. Stokes, M.D. In pursuit of its petition, the hospital contends that Dr. Stokes’s repo...
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*1026 Opinion This appeal arises from a judgment affirming an administrative decision finding appellant willfully violated an occupational safety standard. Appellant claims it lacked the requisite state of mind to have committed a willful violation. We conclude substantial evidence supports the administrative decision and affirm. Procedural History Real party in interes...
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Opinion This writ petition is brought by the Police Chief of the City of Santa Ana seeking review of an ex parte, confidential order issued by the supervising criminal courts judge permitting pretrial defense inspection and testing of a firearm booked in evidence in a murder case. Such orders are unauthorized and unlawful, and we issue our peremptory writ accordingly. *1076 I The order wa...
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dissenting. I agree with the principal dissent in this case that § 505 of the Telecommunications Act of 1996, Pub. L. 104-104, 110 Stat. 136, 47 U. S. C. § 561 (1994 ed., Supp. III), is supported by a compelling state interest and is narrowly tailored. I write separately to express my view that § 505 can be upheld in simpler fashion: by finding that it regulates the business of obscenity. To be su...
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529 U.S. 765 (2000) VERMONT AGENCY OF NATURAL RESOURCES v. UNITED STATES ex rel. STEVENS No. 98-1828. United States Supreme Court. Argued November 29, 1999. Decided May 22, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *766 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Thomas, and Breyer, JJ., joined. Breyer, J., ...
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Sup. Ct. Cal. Certiorari denied....
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Sup. Ct. Pa. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Illinois v. Wardlow, 528 U. S. 119 (2000)....
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C. A. 7th Cir. Motions of Pacific Legal Foundation and Randy Peterson, National Association of Home Builders, and American Farm Bureau Federation for leave to file briefs as amici curiae granted. Certiorari granted....
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This case arises out of a dispute concerning the payment of $5,750.00 in freight charges incurred when Trans-Pac Foods, Ltd. (Trans-Pac) arranged to send three truckloads of shrimp to Darden Restaurants, Inc. (Darden). The plaintiff in this case, C.A.R. Transportation Brokerage Company, Inc. (CAR), filed suit against Darden and Trans-Pac claiming that, under 49 U.S.C. § 13706, Darden and/or Trans-...
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We must decide whether a federal agency properly determined an award of attorneys’ fees to a petitioner wrongly charged with violating that agency’s regulations. I This case first came before us as a petition for review of an order issued by the National Transportation' Safety Board (“NTSB”) denying attorneys’ fees under the Equal Access to Justice Act (“EAJA”), Pub.L. No. 99-80, 99 S...
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ORDER The opinion filed February 3, 2000 [203 F.3d 560], is hereby amended as follows: At slip opinion page 1166, first full paragraph [203 F.3d at 567], delete the following text on line 10: “Moreover, the burden of proof in a Rule 15(a) motion rests with the movant to demonstrate the necessity of preserving a prospective witness’s testimony with a deposition. United States v. Zuno-Arce, 44 F.3d ...
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*1083Opinion Plaintiffs Chantal Coprich and Jeffrey J. Coprich, Jr., through Chantal Coprich as his guardian ad litem, challenge an order granting judgment on the pleadings in favor of defendants Liberty Mutual Insurance Company (Liberty Mutual) and Board Ford, Inc. (Board Ford), against a cause of action for negligent spoliation of evidence. The claim arises from the destruction of an automobile...
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In this petition for review, we must determine the extent to which a former spouse’s political views may be considered imputed to a petitioner. Under the circumstances presented by this case, we conclude that substantial evidence supports the Board of Immigration Appeals’ (“BIA”) decision affirming the denial of eligibility for asylum. I Tsehay Belayneh, a native and citizen of Ethiopia, married B...
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On this appeal, the principal question we consider is whether the “direct threat” defense available to employers under the Americans with Disabilities Act applies to employees, or prospective employees, who pose a direct threat to their own health or safety, but not to the health or safety of other persons in the workplace. We conclude that it does not. I. Mario Echazabal first began ...
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Opinion by Judge ALDISERT; Concurrence by Judge MICHAEL DALY HAWKINS. The principal question for decision is whether retaliation against a nurse, who refused to join a guerrilla movement to give medical care to their wounded, constitutes “persecution ... on account of political opinion” under § 101(a)(42) of the Immigration and Nationality Act (“the Act” or “INA”), 8 U.S.C. § 1101(a)(42) (1998). ...
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This appeal raises the question whether title to the bed of the Kukpowruk River in northern Alaska passed from the federal government to the State of Alaska when Alaska became a State in 1959. We conclude that it did not. A secondary question is whether the federal government’s change in the status of the retained land after statehood caused title to the riverbed to pass to the State. Again, we...
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Opinion Defendant and appellant Wolfriver Holding Corporation (Wolfriver) appeals an order denying its motion for attorney fees after plaintiffs and respondents Antonio Cruz Galan et al. (collectively, Galan) voluntarily dismissed their action against Wolfriver.1 The essential issue presented is whether the trial court abused its discretion in finding Wolfriver was not the prevailing party for pu...
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Opinion A homeowner disputes the method by which the county assessor valued his home following its purchase. He argues that this practice is now disallowed by a recent statutory amendment and the statute should be retroactively applied to the valuation of his property. The trial court rejected this argument. We vacate and remand. Facts Appellant Michael A. Huson owns a single-fa...
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*1142 Opinion Petitioner Marlene M., mother of Michael M., petitions for relief from denial of family reunification services and setting of a Welfare and Institutions Code section 366.26 hearing in this dependency action. 1 We conclude the trial court did not err or abuse its discretion and we deny the request for extraordinary relief. Facts Petitioner is the...
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Opinion I. Introduction Winward Capital Management Co. and Bennett E. Gross (defendants) appeal from an order denying their petition to compel arbitration before the American Arbitration Association. The trial court and parties agree that the current dispute must be resolved by means of the arbitral process. However, defendants argue that the arbitration must be conducted under the auspices of th...
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Opinion Defendant and appellant Juan Santana appeals the judgment, entered after conviction by jury, of possession for sale of methamphetamine exceeding 10 kilograms by weight and possession for sale of cocaine. (Health & Saf. Code, §§ 11378, 11370.4, subd. (b)(3), 11351.) As to both counts, the jury found a principal had been armed in the commission of the offense within the meaning of P...
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Opinion A jury convicted Michael Robert Kinkead of child endangerment (Pen. Code, § 273a, subd. (a))1 and found true the allegation that it resulted in the victim’s death (§ 12022.95). In bifurcated proceedings, Kinkead pled guilty to two counts of possessing methamphetamine (Health & Saf. Code, § 11377, subd. (a)) and one count each of being under the influence of a controlled substance (Health ...
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ARCO Environmental Remediation (“ARCO”) brought this suit to obtain from the State of Montana documents pertaining to an environmental cleanup being conducted pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq, and to enjoin closed-door meetings between Montana and the federal Environmental Protection Agency (“EPA”). Filed in M...
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Neptune Orient Lines, Ltd. (“Neptune”) brought a claim against The Burlington Northern and Santa Fe Railway Company (“Burlington”) seeking indemnity and damages. Neptune sought to recover $182,-892.08 which it paid to its subrogor, Nike, Inc. (“Nike”) for the loss of a container load of shoes. Neptune moved for summary judgment claiming an amount equal to the market value of the shoes at the de...
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Petitioner Bernardo Ontiveros-Lopez seeks review of three decisions of the Board of Immigration Appeals (“BIA”). Ontiveros-Lopez alleges that he was denied due process of law because of ineffective assistance of counsel at his deportation hearing. Despite Ontiveros-Lopez’s asserted innocence, counsel did not dispute deportability. Instead, his attorney sought relief from deportation based on On...
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Opinion Ringler Associates Incorporated (Ringler) appeals from summary judgment granted in favor of respondents Maryland Casualty Company (Maryland) and Northern Insurance Company of New York (Northern). The trial court found that under a “first-publication” exclusion clause contained in a general liability insurance policy respondents had issued to Ringler, respondents had no duty to' de...
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Plaintiffs, several Alaska Native communities, appeal from the district court’s summary judgment in favor of defendant, the United States Postal Service. Plaintiffs sought to enjoin the Postal Service’s Hovercraft Demonstration Project (“the Project”), an experimental program that delivers non-priority mail by surface hovercraft instead of by fixed-wing aircraft to eight remote Alaska Native villa...
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In this trademark case, we must decide whether an organization dedicated to providing a secular alternative for those seeking recovery from alcohol and drug dependency established secondary meaning in its name sufficient to exclude others from using a nearly identical mark. I This appeal involves a dispute between parties who assert competing claims for the exclusive right to use the names “Secula...
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Balbir Singh (“Singh”) petitions for review of a Board of Immigration Appeals (“BIA”) decision dismissing his appeal from an Immigration Judge’s denial, of his motion to reopen deportation proceedings held in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1105a (1996).1 Because the BIA erred when it relied upon newly-created evidentiary standards in dismissing Singh’s appeal, we grant the p...
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Opinion by Judge WARDLAW; Dissent by Judge SILVERMAN. At issue is the application of the Speedy Trial Act in the context of the Southern District of California’s “fast-track” program for expediting illegal re-entry cases. Alejandro Ramirez-Cortez (“Ramirez-Cortez”) 1 was convicted of violating 8 U.S.C. § 1326 (1994), being a deported alien found in the United States after conviction for an aggrava...
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Opinion Plaintiff Donald Boon (Boon), a Los Angeles police officer, was shot and injured by defendant Reynaldo Rivera (Reynaldo) after Boon had responded to a 911 call and encountered Reynaldo, who was barricaded inside the family home. Boon and his wife, Crystal Boon, brought this action asserting various tort theories against Rivera; his wife, Milagro Rivera (Milagro); and Pinegrove Hos...
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Opinion In this matter we conclude the force necessary to commit the offense of rape in concert, as defined in Penal Code section 264.1, is no greater than the force necessary to commit a forcible rape within the meaning of Penal Code section 261, subdivision (a)(2). (Further section references are to the Penal Code unless otherwise designated.) Defendant was convicted by a jury of robbery in...
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Opinion In this action between successive third party liability carriers, Bellefonte Insurance Company (Bellefonte) appeals a summary judgment in favor of Pacific Indemnity Company (Pacific), determining Bellefonte had a duty to defend its insured in underlying litigation. We are unpersuaded by Bellefonte’s contention the “owned property” exclusion of its policies barred coverage. We agre...
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Opinion This proceeding concerns the scope of the prosecution’s discovery obligation in a criminal case. In this capital murder prosecution, *1309the People of the State of California, through the Office of the District Attorney of Imperial County (District Attorney), petition for a writ of prohibition after the trial court ordered the District Attorney to produce California Department of Correct...
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Alameda Gateway (“Gateway”) appeals the district court’s grant of summary judgment in favor of the Army Corps of Engineers (“Corps”) and its denial of Gateway’s cross-motion for summary judgment. The Corps removed portions of Gateway’s piers pursuant to its authority under section 10 of the Rivers and Harbors Appropriation Act of 1899 (“RHA”). See 33 U.S.C. § 403. Gateway’s piers were located i...
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delivered the opinion of the Court. In this ease, we consider whether 11U. S. C. § 506(e) allows an administrative claimant of a bankruptcy estate to seek payment of its claim from property encumbered by a secured creditor’s lien. I This case arises out of the bankruptcy proceedings of Hen House Interstate, Inc., which at one time owned or operated several restaurants and service...
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We must decide whether the bankruptcy court erred in denying comity to a British court’s unliquidated award of court costs and attorneys’ fees because the award was “repugnant to the principles of American jurisprudence.” I This is an appeal of the bankruptcy court’s order disallowing three identical claims filed by the Arab Monetary Fund (“AMF”) in three individual bankruptcy proceedings. The thr...
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C. A. Fed. Cir. Certiorari granted....
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C. A. 8th Cir. Certiorari granted....
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Opinion Defendants and appellants Health Net and Health Systems International, Inc. (collectively, Health Net), appeal from an order of the trial court denying their petition to compel arbitration of claims by plaintiff and respondent Peter Berman in connection with Health Net’s handling of health care benefits for his late wife, Renee. Health Net argues the discovery it conducted prior to filing...
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Opinion I. Introduction Veronica Gordon-Hock appeals from an order, entered on April 15, 1999, denying her Code of Civil Procedure1 section 473 motion to set aside the further judgment on further reserved issues in favor of her former spouse, Stephan J. Hock.2 The main issue on appeal is whether the trial court erred in failing to grant Veronica relief under the “attorney’s affidavit of fault,” w...
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Opinion When does an alleged biological father become a “party” in a dependency proceeding? We answer this question, as well as due process inquiries, in the context of a minor father who has failed to personally assume any responsibility for his child. Here, appellant Michael U. became named as the alleged birth father of Emily R., the subject of already ongoing dependency proceedings. The juven...
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213 F.3d 1179 (9th Cir. 2000) Octavia BELTRAN-TIRADO,Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70783 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 5, 2000Filed May 31, 2000 [Copyrighted Material Omitted] Jonathan D. Montag, Jan Joseph Bejar, San Diego, California, for the petitioner. Nelda C. Rey...
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I. SUMMARY This case involves efforts by the Internal Revenue Service (IRS) to collect taxes owed by Petitioner’s corporation directly from Petitioner. The taxes arose in connection with the corporation’s transfer of real property to Petitioner and Petitioner’s subsequent sale of that property to an unrelated third party. The IRS’s right to assess taxes directly against Petitioner...
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Opinion by Judge NOONAN; Dissent by Judge CANBY. Cable & Computer Technology, Inc. (CCT) appeals the judgment of the district court in its action for breach of contract and related wrongs against Lockheed Sanders, Inc. (Sanders) and other Lockheed entities (collectively Lockheed or the defendants). We affirm the grant of summary judgment against CCT on its Unfair Business Practice and Cartwright ...
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ORDER Thomas Nevius, a Nevada prisoner under sentence of death, seeks a certificate of appealability to permit him to appeal the district court’s denial of his successive petition for habeas corpus, filed pursuant to 28 U.S.C. § 2254. Because Nevius seeks to appeal after the effective date of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), he cannot appeal unless a circuit justice ...
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Opinion Susan Spitzer appeals from the grant of summary judgment for respondent The Good Guys, Inc., her employer, in her suit alleging *1379 disability discrimination and retaliation under the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12940 et seq.) The trial court entered judgment for respondent on the basis of findings that it “reasonably accommodated” appellan...
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Opinion I. Introduction State law mandates that the owner of a water conveyance system with unused capacity allow others to use the facility to transport water. The use of a water conveyance facility by someone other than the owner or operator to transport water is referred to as “wheeling.” In return for wheeling, the water conveyance system owner is entitled to “fair compensation.” (Wat. Code,1...
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96 Cal.Rptr.2d 354 (2000) 81 Cal.App.4th 39 Melissa RAKESTRAW et al., Plaintiffs and Appellants, v. CALIFORNIA PHYSICIANS' SERVICE, Defendant and Respondent. No. B115766. Court of Appeal, Second District, Division Three. May 31, 2000. Rehearing Denied June 27, 2000. Review Denied August 16, 2000.[**] *355 Ivie, McNeill & Wyatt, Robert H. McNeill, Jr., and Jay R. Taylor, Los Angeles, for Plain...
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Opinion In this case, we conclude that the trial court properly denied Charles Anthony Oldham’s motion to suppress evidence under Penal Code 1 section 1538.5 brought on the ground his father Charles Oldham, Sr. (Father), could not consent to a search of the bedroom defendant occupied in the apartment they shared and that, consistent with the holding of People v. ...
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In this case, we must answer the question whether the “safety valve” provision of 18 U.S.C. § 3553(f) applies to a conviction under 21 U.S.C. § 860. Like the Third and Eleventh Circuits, we answer “no.” FACTUAL BACKGROUND AND PROCEDURAL HISTORY On February 11, 1999, Defendant, Tirso Kakatin, was indicted and charged with one count of possessing with the intent to distribute, and distributing,...
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214 F.3d 1041 (9th Cir. 2000) MARIA VAN GERWEN, Plaintiff-Appellant,v.GUARANTEE MUTUAL LIFE COMPANY, a corporation; PARTICIPATING EMPLOYERS, an ERISA plan; LONG TERM DISABILITY PLAN FOR THE EMPLOYEES OF AVNET, INC., Defendants-Appellees. No. 98-56028 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 10, 2000--Pasadena, CaliforniaFiled June 1, 2000 ...
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Craig Weighall appeals the district court’s denial of his 28 U.S.C. § 2254 petition. Weighall was convicted in Oregon state court of first degree assault for stabbing another man in a bar fight. At trial, he pursued a theory of self-defense and the jury was instructed on the permissible use of deadly force in self-defense. Weig-hall now maintains that his trial counsel’s failure to request an a...
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*1187 ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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Opinion —We granted the request of the United States Court of Appeals for the Ninth Circuit for an answer to the following certified question of law under rule 29.5 of the California Rules of Court:1 “Once an employer’s unilaterally adopted policy—which requires employees to be retained so *6long as a specified condition does not occur—has become a part of the employment contract, may the employe...
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96 Cal.Rptr.2d 205 (2000) 23 Cal.4th 40 999 P.2d 95 James W. OBRIEN et al., Petitioners, v. Bill JONES, as Secretary of State, etc., et al., Respondents. No. S085212. Supreme Court of California. June 1, 2000. *207 Kerr & Wagstaffe, James M. Wagstaffe, San Francisco, and Timothy J. Fox, Burlingame, for Petitioners. Hansen, Boyd, Culhane & Watson, Kevin R. Culhane and Betsy S. Kimball, Sac...
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Opinion Hank Torian (Torian) has appealed from a portion of a superior court judgment confirming an arbitration award. In particular, he contends the arbitrator erred by finding that plaintiff Henry Pierotti (Pierotti)1 was the prevailing party within the meaning of an attorney fees clause, and by awarding fees on the basis of that clause. As we explain, this is precisely the type of issue our Su...
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Opinion Plaintiffs Oliver Duggal; Starfire Financial Services, Inc.; Michael Hauser, both individually and doing business as Global-Tel; and U.S. Refill-It, doing business as Supply Distribution Network, appeal from the judgments entered for defendants AT&T Corp. and G.E. Capital Communications Services, Inc., after their demurrers to the third amended complaint were sustained without lea...
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Opinion In 1996, the Compton Municipal Court implemented a plan to reduce the number of deputy court clerks covered by the civil service system. Under the plan, all newly hired or promoted clerks were designated as non-civil service. The clerks’ union brought this action, challenging the municipal court plan. The trial court issued a writ of mandate directing the municipal court to accord...
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214 F.3d 1058 (9th Cir. 2000) DOES I THRU XXIII, on behalf of themselves and all others similarly situated, Plaintiff-Appellant,v.ADVANCED TEXTILE CORPORATION, a corporation; AMERICAN INVESTMENT CORPORATION, a corporation; AMERICAN PACIFIC TEXTILE, INC., a corporation; CONCORDE GARMENT MANUFACTURERS CORPORATION, a corporation; DIORVA (SAIPAN) LTD., a corporation; GLOBAL MANUFACTURING INC., a c...
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Appellant Esther Boyd (“Boyd”) appeals from the district court’s order affirming the judgment of conviction and sentence imposed by the magistrate judge. In the magistrate judge’s court, a jury returned a guilty verdict on two counts: 1) assault of a federal employee (18 U.S.C. § 111(a)(1) (1999)); and 2) entering a military base in violation of an order barring Boyd from the base (18 U.S.C. § ...
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Opinion In the companion case of People v. Lasko (2000) 23 Cal.4th 101 [96 Cal.Rptr.2d 441, 999 P.2d 666], we hold that a defendant who, with conscious disregard for life and the knowledge that such conduct endangers the life of another, unintentionally but unlawfully kills in a sudden quarrel or the heat of passion is guilty only of voluntary manslaughter rather than murder. Here, we hold in a ca...
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Opinion Under California law, murder is the unlawful killing of a human being or a fetus, with malice aforethought. Malice is express when the killer harbors a deliberate intent to unlawfully take away a human life. Malice is implied when the killer lacks an intent to kill but acts with conscious disregard for life, knowing such conduct endangers the life of another. When a killer intentionally bu...
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Opinion Petitioner Savannah B., a minor, filed the instant petition for writ of mandate challenging the lawfulness of a dispositional order of the respondent juvenile court which, following the recommendation of real party in interest the Los Angeles County Department of Children and Family Services (DCFS), required the minor to be removed from the custody of her mother, Marva B., and sui...
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Opinion After their motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendants Robert Lawrence Russell and Louis Burks, Jr., pursuant to a plea bargain, pleaded guilty to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a); undesignated statutory references are to the Health and Safety Code). They were sentenced to prison and now appeal, contending the trial court erre...
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Opinion While waiting for a friend, a young man skateboarded in his friend’s driveway. He fell into a planter and was injured by a metal pipe *111 inside the planter. He sued his friend’s parents, who had placed the planter in the driveway. We conclude the trial court properly granted summary judgment because the plaintiff voluntarily assumed the risks inherent in skateboarding and the defend...
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*136Opinion In this third appeal from Richard Allen Mitchell’s judgment and sentence, we conclude that even in the wake of Monge v. California (1998) 524 U.S. 721 [118 S.Ct. 2246, 141 L.Ed.2d 615] and People v. Monge (1997) 16 Cal.4th 826 [66 Cal.Rptr.2d 853, 941 P.2d 1121], where the government has had a full and fair opportunity to present its case unhampered by evidentiary error or other imped...
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C. A. 5th Cir. Certiorari granted. Justice O’Connor took no part in the consideration or decision of this petition....
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214 F.3d 1082 (9th Cir. 2000) PATRICIA A. BROOKS, Plaintiff-Appellant,v.CITY OF SAN MATEO, a municipal corporation; SAN MATEO POLICE DEPARTMENT; JOHN STANGL, Chief of Police; STEVEN SELVAGGIO, Defendants-Appellees. No. 98-15818 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted May 14, 1999Filed June 5, 2000 1 NOTE: OPINION WITHDRAWN. SEE OPINION AT...
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214 F.3d 1073 (9th Cir. 2000) NATIONAL WARRANTY INSURANCE COMPANY RRG, a Risk Retention Group, Plaintiff-Appellee,v.MIKE GREENFIELD, Director, Department of Consumer and Business Services of the State of Oregon, Defendant-Appellant. No. 98-36054 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 16, 1999--Portland, OregonFiled June 5, 2000 ...
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96 Cal.Rptr.2d 485 (2000) 23 Cal.4th 116 999 P.2d 718 Vickey KRAUS et al., Plaintiffs and Respondents, v. TRINITY MANAGEMENT SERVICES, INC., et al., Defendants and Appellants. No. S064870. Supreme Court of California. June 5, 2000. Rehearing Denied July 19, 2000. *487 William B. Boone, Santa Rosa; The Advani Law Firm, Kelly, Herlihy, Advani & Klein, Mukesh Advani, Reed E. Harvey; Sangster, Ma...
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Opinion In this matter, a companion to Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116 [96 Cal.Rptr.2d 485, 999 P.2d 718] (Kraus), we address additional issues arising out of a representative action brought under the unfair competition law (UCL). (Bus. & Prof. Code, § 17200 et seq.)1 Defendant and petitioner Purolator Air Filtration Products Company (Purolator) contends, as did t...
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C. A. 11th Cir. Motion of Lester Brickman et al. for leave to file a brief as amici curiae granted. Certiorari denied. Statement of Justice O’Connor respecting the denial of the petition for a writ of certiorari. This case involves an award of attorney’s fees that, by any measure, is extraordinary. Respondents brought a securities class action, alleging that petitioners had fraudulently solicited ...
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We must decide whether we have jurisdiction over the merits of this petition for review. To do so, we must determine whether the underlying convictions amount to aggravated felonies or crimes of moral turpitude within the meaning of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”), Pub.L. 104-208, 110 Stat. 3009 (1996). BACKGROUND Jose Marce...
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215 F.3d 910 (9th Cir. 2000) ROBERT CHARLES COMER, Petitioner-Appellant,v.TERRY L. STEWART, Director, Department of Corrections, Respondent-Appellee. No. 98-99003 U.S. Court of Appeals for the Ninth Circuit Filed June 6, 2000 Peter J. Eckerstrom, Tucson, Arizona; Julie S. Hall, Tucson, Arizona, for the petitioner-appellant. Jon G. Anderson, Assistant Attorney Gener...
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Opinion Petitioner Juan Cano, employed as a mechanic and truck driver by respondent Carrancho Farms, Inc., was assigned to dismantle a fiberglass tank. While Cano worked in the tank, a coworker’s welding torch caused an explosion, igniting a fireball inside the tank. Cano suffered severe bums to his face, arms, hands, stomach, back, buttocks, thighs and legs. A findings and award issued by respond...
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*258Opinion Recently this court decided it is an abuse of discretion for the juvenile court to deny a parent a contested review hearing (Welf. & Inst. Code, § 366.21, subd. (e))1 when the parent has tendered an adequate statement explaining the basis of her request for a contested hearing. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751 [89 Cal.Rptr.2d 407].) Left unresolved in that case w...
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Opinion If a petitioner prevails on a writ petition challenging an environmental impact report (EIR), and then unsuccessfully challenges the subsequent EIR brought before the trial court on a return to the writ, is the petitioner entitled to Code of Civil Procedure section 1021.5 (section 1021.5) attorney fees pertaining solely to the fees incurred in challenging the second EIR? We conclu...
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*246 Opinion After his employment with the County of Santa Clara (County) was terminated, Robert G. Burden sued the County, alleging that conditions of his employment had been misrepresented. After striking certain portions of the complaint, the trial court granted the County’s motion for summary judgment. The trial court held that the County, as a public entity, had immunity pur...
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The United States Trustee,. Stanley, sought disgorgement of payments previously received by appellee, McCormick, Barstow, Sheppard, Wayte & Carruth, counsel for the former debtor in possession, because the estate did not have enough money to pay all the administrative expenses. The bankruptcy judge denied the motion. The United States Trustee timely filed an appeal with the district court. ...
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Nicholas Victor Fleming, Jr., (“Fleming”) appeals from a judgment of conviction under 18 U.S.C. § 1503. Fleming was sentenced to fifteen months’ imprisonment after a jury found he endeavored to influence the Honorable Robert E. Coyle, a federal district judge, in the discharge of his duties in a civil case Fleming filed in the Eastern District of California. We have jurisdiction under 28 U.S.C....
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OPINION The appellant’s home was sold at a trustee’s sale to the appellee, who recorded the deed after the appellant filed her chapter 13 1 petition, but within a special fifteen-day window provided by state law. The appellee sought relief from the automatic stay to take possession of the property postpetition, alleging that the sale had been perfected prepetition pursuant to state law. The b...
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OPINION The appellee, a sole proprietorship, sued the appellant, a former employee, for misappropriation of funds in a Tennessee state court. Prior to the commencement of the state court trial, the appellant moved to California, where she filed her chapter 7 1 petition. The appellee, who had incorporated after the appellant’s discharge, subsequently brought a nondis-chargea...
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OPINION This is a tale of individuals who were bankrupted by construction litigation involving a home that turned from dream to nightmare. The debtors, after the trustee settled the lawsuit for enough to pay all creditors in full but not enough to salvage one-third of their own losses, appeal from yet another blow: taking $50,000 from their recoupment to pay trustee’s counsel a bonus in a...
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dissenting. I agree with the majority that neither § 549 nor § 365 supports the bankruptcy court’s decision in this case. However, because I conclude that § 364(c) required Debtors in possession to obtain approval for incurring secured debt postpetition, I dissent. *832The issue on which I differ from the majority is whether the additional encumbrance on Debtors’ Property that resulted from postpe...
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Opinion The City of Oceanside (City) and Rodney Ferris (together with City, Defendants), defendants in a personal injury action brought by the real party in interest, plaintiff Tracie G. MacDonald, filed a petition for a peremptory writ of mandate seeking reversal of an order denying their motion for summary judgment. Defendants contend the firefighter’s rule applies as a matter of law an...
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Opinion This is one of those rare “judgment roll” appeals that merits a reversal, essentially because of the rigid structure of California’s child support statutes combined with the requirement that any deviation from formula guidelines be sua sponte articulated by the trial judge. Here, the trial court made a child support order which would require payment of an arbitrary percentage of one paren...
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Opinion Defendant Club Car, Inc. (CCI), a manufacturer of electric golf carts, appeals from a products liability judgment entered against it following a bifurcated trial on liability and damages. This action arises out of an accident involving a CCI golf cart whose parking brake allegedly spontaneously released, causing plaintiff David Mendoza (Mendoza) to suffer serious injuries, includi...
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215 F.3d 940 (9th Cir. 2000) FRANK E. SCOTT, Plaintiff-Appellant,v.BERNARD BOOS; LOCKE GOLDSMITH; EDWARD WHITE; JOHANN PLAMENIG; ROBERT BALLARD; HAROLD D.J. GALLISON; LA JOLLA CAPITAL CORPORATION, a Nevada corporation; BRIAN GRACEY; AMERICAN WOLLASTONITE MINING CORPORATION, fka White Plains Resources Corporation, a publicly traded British Columbia corporation; DOES, I through XX, inclusive,...
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Grace A. Anglin pleaded guilty to a single count of conspiracy to impede the United States in the ascertainment and collection of taxes. 18 U.S.C. § 371; 26 U.S.C. § 7202. She now claims in this appeal that the district judge misapplied the United States Sentencing Guidelines (“U.S.S.G.”). In particular, she disputes a vulnerable victim enhancement, see U.S.S.G. § 3A1.1, and the dist...
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Opinion Petitioner seeks a writ of certiorari to review an order adjudging him in direct contempt of court. According to the order, the allegedly contemptuous conduct consisted in “yelling at the judge in front of the jury in a loud, rude, hostile and disrespectful tone of voice.” (Italics added.) Petitioner contends the order must be annulled for two reasons: (1) It is defective under Code o...
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96 Cal. Rptr. 2d 682 (2000) 23 Cal. 4th 225 1 P.3d 3 The PEOPLE, Plaintiff and Respondent, v. Ronaldo Medrano AYALA, Defendant and Appellant. No. S009108. Supreme Court of California. June 8, 2000. Rehearing Denied August 23, 2000. *690 Andrew Parnes, Ketchum, ID, and E. Evans Young, Oakland, under appointments by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer,...
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Opinion Plaintiff and appellant Montgomery Ward filed this lawsuit against four insurance companies, seeking a declaration of coverage and compensatory damages for breach of contract under certain comprehensive general liability policies issued from 1962 to 1976. Montgomery Ward sought coverage for defense and indemnity costs it had incurred because of alleged environmental contamination ...
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214 F.3d 1135 (9th Cir. 2000) JACK METCALF; AUSTRALIANS FOR ANIMALS; BEACH MARINE PROTECTION; S'TASSAWOOD OF THE CHEABA FAMILY OF THE MAKAH NATION, (Alberta N. Thompson); THE FUND FOR ANIMALS; TIM WALSH; LISA LAMB; SUE MILLER; STEPHEN DUTTON; DEEP SEA CHARTERS, INC., Plaintiffs-Appellants,v.WILLIAM DALEY, Secretary U.S. Department of Commerce; JAMES BAKER, Administrator, National Oceanic an...
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Sareang Ye petitions for review of a final order of deportation issued by the Board of Immigration Appeals (“BIA”). The BIA found that Ye was removable under 8 U.S.C. § 1227(a)(2)(A)(ni) as an “alien who is convicted of an aggravated felony.” Ye argues that his conviction for vehicle burglary does not qualify as an “aggravated felony” because it is neither a “burglary” nor a “crime of violence” a...
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Opinion This is an appeal by plaintiffs from a judgment for defendant State Compensation Insurance Fund (State Fund) entered after the superior court granted summary judgment. The action, brought by Thomas J. Culligan III, individually and doing business as Culligan Management Company (collectively Culligan), grows out of State Fund’s refusal to defend or indemnify Culligan, under a workers’ comp...
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Opinion Carl and Deborah B. appeal from the order of the juvenile court terminating Carl’s parental rights to their younger son, Cliffton. They claim Carl had made sufficient progress on his drug abuse treatment program by the time of the permanency hearing to justify reversing the previous order *419terminating reunification services. (Welf. & Inst. Code, § 388.)1 Alternatively, they claim Cliff...
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delivered the opinion of the Court. Section 406(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 879, bars a fiduciary of an employee benefit plan from causing the plan to engage in certain transactions with a “party in interest.” 29 U. S. C. § 1106(a). Section 502(a)(3) authorizes a “participant, beneficiary, or fiduciary” of a plan to bring a civil aetion to ob...
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delivered the opinion of the Court. This case concerns the kind and amount of evidence necessary to sustain a jury’s verdict that an employer unlawfully discriminated on the basis of age. Specifically, we must resolve whether a defendant is entitled to judgment as a matter of law when the plaintiff’s case consists exclusively of a prima facie case of discrimination and sufficient evidence for the ...
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The plaintiffs allege in this action that police perjury and other misconduct occurring in a previous civil rights lawsuit caused them to lose that case, thus depriving them of their due process right of access to the courts. This issue today concerns the statute of limitations. When does such a cause of action accrue? Does the statute of limitations begin to run when the plaintiffs lose their cas...
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One of the most successful partnerships in the nation’s history began more than a quarter of a century ago in Kansas City, Missouri and ended in 1997 with the arrests of Ray Lewis Bowman and William Arthur Kirkpatrick. They were known as the “Trench Coat Robbers.” Their last hit, at Seafirst Bank in Lakewood, Washington, netted a record $4.4 million. Both expert locksmiths, they would ente...
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Hector Morales Cervantes appeals from his conviction for manufacturing and possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). He contends that the district court erred by admitting into evidence items seized pursuant to an invalid search warrant and by denying his motions for acquittal and a new trial. We have jurisdiction under 28 U.S.C. § 1291, and we a...
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214 F.3d 1155 (9th Cir. 2000) SATYA VASUDEVA; SHAKUNTALA W. VASUDEVA, dba 7-Eleven; MICHAEL BELAY; SABA BELAY, dba 7-Eleven; THE SOUTHLAND CORPORATION, dba 7-Eleven, Plaintiffs-Appellants,v.UNITED STATES OF AMERICA, MICHAEL ESPY, Secretary of Agriculture; DANIEL R. GLICKMAN, Secretary of Agriculture, Defendants-Appellees. No. 98-35726 Office of the Circuit Executive U.S. C...
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I concur in the result. A crime generally comprises elements of mental state and also conduct or consequences or both. In Penal Code section 12020 (section 12020) declares it a crime, as either a felony or a misdemeanor, for “[a]ny person” to “[c]arr[y] concealed upon his or her person any dirk or dagger.” (Id., subd. (a)(4).) It defines a “dirk” or “dagger” to mean any “instrument,” including a “...
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96 Cal. Rptr. 2d 747 (2000) 23 Cal. 4th 305 1 P.3d 63 KAJIMA/RAY WILSON, Plaintiff and Respondent, v. LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant and Appellant. No. S077461. Supreme Court of California. June 12, 2000. Rehearing Denied August 23, 2000. *748 DeWitt W. Clinton and Lloyd W. Pellman, County Counsel, and Richard P. Chastang, Deputy County Counsel, for Defendant ...
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Opinion The minor, Eduardo D., appeals from the order declaring him a delinquent ward of the court. (Welf. & Inst. Code, § 602.) The juvenile court sustained one of the allegations of a petition filed April 16, 1999, finding a lesser included offense of grand theft from a person rather than second degree robbery as originally charged. (Pen. Code,1 § 487, subd. (c).) The juvenile court ordered tha...
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Opinion The sole issue we address in this appeal is whether the offense of receiving stolen property (Pen. Code, § 496) 1 is necessarily included within the offense of owning and operating a chop shop (Veh. Code, § 10801) so as to bar simultaneous convictions on both offenses. We conclude that it is under the facts of this_case and accordingly reverse defendant’s convictions on...
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Opinion The trial court denied appellant’s motion to strike his prior Texas murder conviction. We hold that a defendant may not collaterally attack a prior out-of-state conviction on Boykin/Tahl 1 grounds in the absence of evidence that the convicting jurisdiction required Tahl-like procedural formalities. *465 Statement of the Case On April 29, 1996, appellant Donald J. Green was cha...
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Opinion Defendant Troy Smith appeals an order granting a motion by the City and County of San Francisco (County), on behalf of the People of the State of California, for reimbursement of legal services rendered to him (Pen. Code, 1 § 987.8). He contends he was not given notice required under section 987.8, subdivision (f), that he may be subject to such reimbursement, and the t...
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Opinion An employee was injured in an automobile accident while driving in the course and scope of his employment. The employee’s attorney obtained a settlement from a third party tortfeasor. The employer’s workers’ compensation reimbursement claim exceeded the amount of the settlement fund. The trial court awarded the employee’s attorney fees out of the settlement fund. We hold the employee’...
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Opinion The superior court did not comply with our order that it conduct a hearing on a petition for writ of habeas corpus. We therefore must grant a writ of mandate. *567Facts On February 3, 1996, Scott Riley and four friends met at a Long Beach bar to celebrate his birthday. During the course of the evening, they drank a considerable amount of alcohol. About 1:00 a.m., they were talking outside...
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The issue before us is whether Franklin and Nona Coady were entitled to exclude from their 1994 gross income $168,217 for costs and contingent legal fees incurred in securing Nona Coady’s judgment for lost wages and benefits arising out of her wrongful termination. We conclude that they were not, and affirm. I In May 1990, Nona Coady was discharged from her position as Senior Loan Off...
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215 F.3d 1005 (9th Cir. 2000) PEOPLE OF THE STATE OF CALIFORNIA, by the Sacramento Metropolitan Air Quality Management District, Plaintiff-Appellant,v.UNITED STATES OF AMERICA; DEPARTMENT OF AIR FORCE; SACRAMENTO AIR LOGISTICS CENTER; MCCLELLAN AIR FORCE BASE, Defendants-Appellees. No. 99-15388 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 26, 2000Filed Jun...
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215 F.3d 986 (9th Cir. 2000) STATE OF IDAHO, Plaintiff-Appellant,v.LON T. HORIUCHI, Defendant-Appellee. No. 98-30149 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted June 9, 1999--Pasadena, CaliforniaFiled June 14, 2000 [Copyrighted Material Omitted] Denise Woodbury, prosecuting attorney, Boundary County, Idaho, Stephen Yagman, Special Deputy Prosec...
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Opinion by Judge GRABER; Dissent by Judge PREGERSON. Defendant Rogelio Banuelos-Rodriguez pleaded guilty in the United States District Court for the Central District of California to illegally reentering the United States after having been deported, in violation of 8 U.S.C. § 1326. At sentencing, Defendant argued for a downward departure from the applicable Sentencing Guideline range on the groun...
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Defendants each were indicted in the District of Guam on one count of smuggling aliens in violation of 8 U.S.C: § 1324(a)(1)(A)(i). On July 12, 1999, the district court denied the government’s motion for a continuance and dismissed the indictments with prejudice under Federal Rule of Criminal Procedure 48(b). The government appealed, arguing that the district court should have dismis...
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Defendant Sandro Jimenez was charged with possession of a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). At trial, he testified that he neither owned nor possessed the firearm in question. The government sought to impeach Jimenez with his prior convictions for assault with a deadly weapon and burglary. Recognizing the possible prejudice of such impeachment, the district ...
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Opinion In two appeals that have been consolidated, Ranger Insurance Company (Ranger) challenges: 1) the denial of a motion to extend time to set aside a bail forfeiture; and 2) the summary judgment entered against Ranger on the same forfeiture. *678This is a case of first impression. It involves the interpretation of Penal Code section 1305.4,1 which requires a showing of good cause in order to ...
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Opinion Plaintiffs challenged the issuance of a conditional use permit, claiming the permit had not undergone sufficient environmental review and violated governing parking regulations. The trial court granted summary judgment against plaintiffs, finding they had failed to exhaust their administrative remedies on the environmental issue and the permit complied with the parking regulations. We a...
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Opinion Plaintiff Pacific Bell’s facility suffered substantial damage when a corroded cast-iron water pipe servicing a fire hydrant burst and the escaping water flooded the facility. The pipe was owned and maintained by defendant City of San Diego (City) and would not have burst had it not been corroded. Pacific Bell sought inverse condemnation damages from City. Pacific Bell asserte...
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Opinion 1. Introduction Plaza Freeway Limited Partnership (plaintiff) and First Mountain Bank (defendant) are successors in interest to the original landlord and tenant of *619 commercial real property under a 25-year lease agreement. The parties were unable to determine the termination date of the ground lease. Nevertheless, at the time of plaintiff’s purchase o...
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Plaintiff Scott Fischer (“Fischer”) appeals the district court’s order denying his request for attorney’s fees. The district court ruled that Fischer was not entitled to attorney’s fees because he was not the “prevailing party.” It alternatively stated that even if he had prevailed, it would still deny Fischer’s fee application because his request was excessive and poorly documented. Because we d...
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This case involves approximately 450 plaintiffs who own property in the Lake Tahoe Basin. The lead plaintiff, Tahoe-Sierra Preservation Council, Inc. (TSPC), is an association of Tahoe-area property owners. Each individual property owner has alleged, inter alia, that each of several land-use regulations enacted in the 1980’s by the Tahoe Regional Planning Agency (TRPA) constituted a “taking” of hi...
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I. BACKGROUND In 1983, the Environmental Protection Agency (EPA) placed the “Bunker Hill Mining Site” on the National Priorities List (NPL), a list of the most contaminated sites in the nation. The list is maintained by the EPA pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (CERC-LA). See 42 U.S.C. § 9601 et seq. The listing of the Bunker Hill site reflected ...
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Julio Gonzalez appeals from his conviction and sentence imposed for conspiracy, cocaine distribution, and money laundering. On appeal, Gonzalez raises four principal issues. He contends that the district court erred by: 1) overruling his challenge for cause to a juror; 2) barring him from presenting evidence going to a defense of duress and refusing to instruct the jury on duress; 3) deciding a m...
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96 Cal. Rptr. 2d 758 (2000) 23 Cal. 4th 340 1 P.3d 73 The PEOPLE, Plaintiff and Appellant, v. Luis MIRANDA, Defendant and Respondent. No. S078243. Supreme Court of California. June 15, 2000. Certiorari Denied November 13, 2000. *759 Gil Garcetti, District Attorney, Diana L. Summerhayes, Patrick D. Moran and Shirley S.N. Sun, Deputy District Attorneys, for Plaintiff and Appellant. Victoria H. Staf...
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Opinion 1. Introduction Southwest Research Institute, a Texas nonprofit corporation, appeals from a judgment denying its petition for a peremptory writ of mandate. On appeal, Southwest contends that, for purposes of paying unemployment benefits, Jeffery A. Yingst 1 was an independent contractor, not an employee, of Southwest. For several years, Yingst worked as a v...
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Pedro Mezas de Jesus was convicted in 1998 of being an undocumented immigrant in possession of a firearm in violation of 18 U.S.C. § 922(g)(5). At sentencing, the government argued that Mezas de Jesus committed this offense during a purported, uncharged kidnaping. The sentencing court applied the preponderance of the evidence standard and found that Mezas de Jesus possessed a firearm in connectio...
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Opinion On March 7, 2000, the. voters approved an initiative measure designated on the ballot as Proposition 21. This measure took effect on March 8, 2000, the day following the election. (Cal. Const., art. II, § 10, subd. (a).) Proposition 21, known as the Gang Violence and Juvenile Crime Prevention Act of 1998, made numerous changes to the Penal Code and Welfare and Institutions Code re...
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*728 Opinion Plaintiff Harvey Rice (Rice) appeals from a summary judgment granted against him and in favor of Robert Trammell Crow (Crow), Neal Pardee (Pardee), Robert Rickard (Rickard) and Ronald Cox (Cox) (collectively Defendants). Relying on the decision in Arciniega v. Bank of San Bernardino (1997) 52 Cal.App.4th 213 [60 Cal.Rptr.2d 495] (Arciniega), Defendants arg...
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530 U.S. 363 (2000) CROSBY, SECRETARY OF ADMINISTRATION AND FINANCE OF MASSACHUSETTS, et al. v. NATIONAL FOREIGN TRADE COUNCIL No. 99-474. United States Supreme Court. Argued March 22, 2000. Decided June 19, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT *365 *365 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kenned...
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C. A. 5th Cir. Certiorari denied....
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Sup. Ct. Pa. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Pegram v. Herdrich, ante, p. 211....
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On November 7, 1988, petitioner Albert Bribiesca, then incarcerated in county jail, appeared in Los Angeles County Superior Court for pre-trial proceedings in his first-degree murder case. Defense counsel informed the court that Bribiesca wished to exercise his Sixth Amendment right to represent himself, but the court refused to allow Bribiesca to do so. Following a trial at which he was represen...
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Ct. App. Wis. Certiorari granted limited to Question 3 as presented by the petition....
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214 F.3d 1122 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant,v.MIRIAM AGUIRRE, Defendant-Appellee. No. 99-50135 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 3, 2000--Pasadena, CaliforniaFiled June 19, 2000 Ronald L. Cheng, Assistant United States Attorney, Los Angeles, California, for the ...
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Defendant Aundre Sterling Wright appeals his jury convictions and 214-month sentence for conspiracy to commit armed bank robbery (18 U.S.C. § 371), armed bank robbery (18 U.S.C. § 2113(a) & (d)), and using or carrying a firearm during a crime of violence (18 U.S.C. § 924(c)). We hold that (1) the district court did not err in declining to suppress the results of a court-ordered blood sample tak...
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97 Cal. Rptr. 2d 67 (2000) 23 Cal. 4th 368 1 P.3d 658 Mark GALANTY, Plaintiff and Appellant, v. PAUL REVERE LIFE INSURANCE COMPANY, Defendant and Respondent. No. S073678. Supreme Court of California. June 19, 2000. *68 Lambda Legal Defense and Education Fund, Jon W. Davidson, Beatrice Dohrn, Catherine Hanssens, New York City; Hedges & Caldwell, Caldwell, Leslie, Newcombe & Pettit and Mary...
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Opinion —When a defendant successfully appeals a criminal conviction, California’s constitutional prohibition against double jeopardy precludes the imposition of more severe punishment on resentencing. (People v. Henderson (1963) 60 Cal.2d 482, 495-497 [35 Cal.Rptr. 77, 386 P.2d 677] (Henderson).) The question here is whether a statutorily mandated restitution fine comes within this rule. We concl...
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Opinion In this matter we are, as happens far too often, called upon to reconcile and attempt to harmonize two statutes which strenuously resist any effort to make sense of them. Of the two possible results argued by the parties, neither is either compelled or compelling. Nevertheless, in our *764 view the conclusion we reach comports best with the intent of the Legislature a...
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216 F.3d 837 (9th Cir. 2000) SERGIO BAUTISTA; MIGUEL RODRIGUEZ; JOSE SOTO; MANUEL FERNANDEZ; ALICE FARNHAM; ALFREDO FIGUEROA; JOSE LUIS ALEJO; MARIO MEJIA; GUADALUPE CEDILLO; HECTOR REYES; MARCOS MARTINEZ; ROBERTO GUTIERREZ; LEOPOLDO CERVANTES; DAVID SALAS; MARCOS ORTEGA; JORGE FLORES; JUAN MAGANA; MARTIN JIMENEZ; JOSE CUEVAS; MIGUEL DE LA TORRE; JORGE DEL VALLE; LIBRADO CRUZ; VICENTE CEDILLO...
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216 F.3d 827 (9th Cir. 2000) KORNEL BOTOSAN, Plaintiff-Appellee,v.PAUL MCNALLY REALTY, a California corporation; CHUCK N. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990; JUDITH A. RUSTON, Trustee of Trust U/D/T Dated Eleven October 1990, Defendants-Appellants. No. 99-55580 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted November 2, 1999--Pasadena, Califor...
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Mario Ernesto Navas seeks review of the BIA’s decision denying both asylum and withholding of deportation. Navas fled El Salvador at age 17 after members of the Salvadoran military murdered his aunt, shot at him, threatened him with death, and assaulted his mother. Previously, in 1988, Navas’s uncle, a member of the Frente Farabundo Marti para la Li- *652 beracion Nacional (FMLN), ...
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We must decide whether California may require that candidates for the United States House of Representatives reside in the state when filing nomination papers, as distinguished from when elected. I Michael Schaefer, a Nevada resident, sought to file as a candidate in the special Congressional election of April 7, 1998 to fill the vacancy for the 44th Congressional District of Californ...
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Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O’SCANNLAIN. The City of Simi Valley (“Simi Valley” or the “City”) appeals from the district court’s order declaring its adult business zoning ordinance unconstitutional and granting an injunction barring its enforcement. We must decide two issues: whether a zoning ordinance that allows “sensitive use”1 establishments to a...
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Opinion * Defendants, Farmers and Merchants Bank of Long Beach and Farmers and Merchants Trust Company of Long Beach, appeal from a summary judgment in favor of plaintiff, the City of Long Beach (the city), to foreclose on a lien against real property and authorizing the sale of the parcel. In the published portion of the opinion, we address the issue of whether defendants preser...
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Opinion These two appeals arise out of an action by four individual plaintiffs, Jo-Ann Bartold, Kurt Krasne, Dov Hopenstand and Charles Cohen, against Glendale Federal Bank and Verdugo Service Corporation for failure to reconvey their trust deeds as required by Civil Code section 2941. The first appeal, by Bartold, Krasne and Hopenstand, is from the trial court’s denial of the plaintiffs’...
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216 F.3d 845 (9th Cir. 2000) LESLIE FRANK; PAT PARNELL; SUSAN BRODERICK; CAROLE KIRK; NICHKOL MELANSON; SANDRA HUFF; DIANE DAVIS; SHARON BENJAMIN; SHARRON K. TAYLOR; BLAND LANE; JOAN BALLA WEAVER; DONNA DURKIN; ELLEN MCCORMICK, Plaintiffs-Appellants,v.UNITED AIRLINES, INC., Defendant-Appellee. Nos. 98-15638, 98-16687 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted ...
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We must decide whether a “Certifícate of Nonexistence of Record” issued on behalf of the Attorney General was appropriately admitted into a criminal trial for illegal reentry by an alien as evidence of lack of permission despite the fact that the document was not executed by an officer to whom the Attorney General had expressly delegated such authority. I On July 6, 1998, an agent of the U.S....
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216 F.3d 880 (9th Cir. 2000) THE INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO), Plaintiff-Appellant,andUNITED STATES OF AMERICA, Intervenor-Appellant,v.GARY LOCKE, Governor of the State of Washington; CHRISTINE O. GREGOIRE, Attorney General of the State of Washington; BARBARA J. HERMAN, Administrator of the State of Washington Office of Marine Safety; DAVID MACEACHERN, P...
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*839 Opinion Daniel Carr appeals Ms conviction for burning a cross on another person’s property without authorization. (Pen. Code, § 11411, subd. (c).) 1 Carr contends the court and prosecutor impermissibly undermined Ms efforts to show the cross burning was authorized. He also faults the court for disallowing his intoxication defense. We find no merit in Carr’s intoxi...
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This appeal presents the question of whether a local cable franchising authority may condition a transfer of a cable franchise upon the cable operator’s grant of unrestricted access to its cable broadband transmission facilities for Internet service providers other than the operator’s proprietary service. We conclude that the Communications Act prohibits a franchising authority from doing so and r...
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Appellant Winston Moore appeals the decision of the district court granting summary judgment to Kenneth Apfel, Commissioner of the Social Security Administration. Moore challenges the final decision of the Commissioner denying his applications for disability insurance benefits and supplemental security income benefits under Titles II and XVI of the Social Security Act. Moore argues that the dec...
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97 Cal. Rptr. 2d 511 (2000) 2 P.3d 1065 Marc KASKY, Appellant, v. NIKE, INC. et al., Respondents. No. S087859. Supreme Court of California. June 21, 2000. Appellant's petition for review GRANED. GEORGE, C.J., MOSK, J., KENNARD, J., WERDEGAR, J., and BROWN, J., concur. ...
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Opinion By statute the Legislature has permitted the beneficiary of a deed of trust to substitute, at any time, a new trustee for the existing trustee. Under the governing statute the substitution is made by simply recording a document evidencing the substitution. (Civ. Code, 1 § 2934a, subd. (a).) By its terms the statute provides that after such a substitution has been record...
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217 F.3d 663 (9th Cir. 2000) CLINTON K. LAJOIE, Petitioner-Appellant,v.S. FRANK THOMPSON, Superintendent, Oregon State Penitentiary, Respondent-Appellee. No. 98-35919 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted July 13, 1999--Portland, OregonOpinion Filed January 31, 2000Opinion Withdrawn and AmendedOpinion Filed June 23, 2000 [Copyrighted Material Omitt...
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Opinion Appellants, William L. Burdette, Mary M. Vincent and Patrice R. Robinson appeal from an order admitting to probate the will of decedent dated September 25, 1993 (the 1993 will) which had been filed by Gloria Grace Burdette II (hereinafter, petitioner). Appellants argued that (1) the 1993 will was not duly executed, (2) the decedent lacked testamentary capacity, and (3) the deceden...
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*922 Opinion Frederick Gaio, Jr., and Rick Lynn Hodgin appeal from judgments imposed after a jury convicted them, respectively, of three counts each of receiving a bribe (Pen. Code, § 68; undesignated section references are to that code) and giving a bribe with a value in excess of $400 (§ 67.5, subd. (b)). Gaio received a five-year sentence, and Hodgin was sentenced to a term of...
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Opinion The People appeal the trial court’s grant of defendant’s motion under Penal Code 1 section 1538.5 to suppress the evidence of marijuana being grown under a green tarp near his trailer on his property. 2 Acting on a tip from a confidential informant, Officer John Wickum of the San Bernardino County Sheriff’s Department observed marijuana plants being grown und...
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delivered the opinion of the Court. This ease presents the question whether the State of California may, consistent with the First Amendment to the United States Constitution, use a so-called “blanket” primary to determine a political party’s nominee for the general election. I Under California law, a candidate for public office has two routes to gain access to the general ballot for most state an...
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The ultimate question in this case is whether a phonorecord distributed in the late 1930s “published” the underlying work such that the clock started ticking under the Copyright Act of 1909.1 In La Cienega Music Co. v. ZZ Top, 53 F.3d 950 (9th Cir.1995), we held that it did. However, in 1997 Congress amended the Copyright Act to provide that distribution of a phonorec-ord before January 1, 1978 sh...
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In proceedings before the United States District Court for the Southern District of California, Jose Alfredo Maldonado (“Maldonado”) pleaded guilty to conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. § 846 and § 841(a)(1). The district court sentenced Maldonado to 168 months in custody. *1048 Maldonado appeals his sentence, contending that: (1) the district cou...
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Opinion I. Introduction In this appeal, we consider whether entry into six rooms at a single school constitutes six separate burglaries under Penal Code section 459. 1 A jury convicted defendant Lester Paul Elsey (defendant) of six counts of second degree burglary based upon his entry into five classrooms and the main office area of a middle school in Shasta County. He w...
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Opinion After the Board of Directors (the Board) of the Rancho Santa Fe Association (the Association), on the advice of a five-person “Art Jury,” rejected Patricia Dolan-King’s proposed plans for home additions and *970 a perimeter fence on her property, Dolan-King sued the Association seeking a declaration that its actions were invalid. Following a bench trial, the court dec...
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Ct. Sp. App. Md. Certiorari granted....
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C. A. 6th Cir. Certiorari granted....
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C. A. 5th Cir. Motions of American Civil Liberties Union of Texas, Inc., Texas Criminal Defense Lawyers Association, and National Association of Criminal Defense Lawyers et al. for leave to file briefs as amici curiae granted. Certiorari granted....
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C. A. 11th Cir. Certiorari granted, judgment vacated, and ease remanded *1257for further consideration in light of Santa Fe Independent School Dist. v. Doe, ante, p. 290....
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Sup. Ct. Mo. Certiorari granted limited to the following question: “Does 12 U. S. C. §2134 authorize States to tax the income of the National Bank for Cooperatives, a federally chartered instrumentality of the United States?”...
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This case presents a conflict between provisions of the Bankruptcy Code and the Internal Revenue Code. Under Internal Revenue Code § 172, a taxpayer’s election to forego a net operating loss carryback is “irrevocable.” Under Bankruptcy Code § 548, a bankruptcy trustee may avoid “any transfer” of an interest of the debtor in property when made under conditions set forth in the statute as a fraudule...
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The owners of three adult book and video stores and an adult mini-theater (collectively “Plaintiffs”) sued the City of *1053Long Beach (“Long Beach”) challenging the constitutionality of a Long Beach zoning ordinance restricting the locations in which adult businesses can operate. The district court found that the ordinance did not violate the Plaintiffs’ rights under the First Amendment or the Eq...
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217 F.3d 692 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MARK DOUGLAS POEHLMAN, Defendant-Appellant. No. 98-50631 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted December 6, 1999--Pasadena, CaliforniaFiled June 27, 2000 [Copyrighted Material Omitted][Copyrighted Material Omitted] Edward M. Robinson, Torrance, California, argued t...
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Opinion I. Introduction In a petition filed on August 3, 1999, it was alleged that appellant Giovani M. was a minor who came within the provisions of Welfare and Institutions Code section 602 in that the minor was 17 years old on July 30,1999, and on that date committed four felony offenses. It was alleged he committed: (1) assault with a firearm, and that he personally used a firearm in the comm...
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*1046Opinion California’s “Wheeling Statutes,” Water Code section 1810 et seq., provide for the sale and transfer of water. Here we hold that Water Code section 1810 et seq.1 allow buyers and sellers to transport water. A school district claimed the right to transport water through a city’s water conveyance system pursuant to section 1810. When the city refused, the school district petitioned for...
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Opinion Letitia V. and the Pechanga Band of Luiseño Mission Indians (the Tribe) seek extraordinary relief from an order of the juvenile *1011 court denying reunification services and setting a permanency hearing under Welfare and Institutions Code (all subsequent statutory references are to this code) section 366.26 with regard to her nine-month-old son, Levi V. Petitioners claim the court’s ...
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Opinion In the published portion of this opinion we consider whether an order by the Workers’ Compensation Appeals Board (WCAB or Board) on reconsideration under Labor Code section 5900 is final for purposes of appellate review under Labor Code section 5950. At trial, the workers’ compensation judge applied the presumption of liability in Labor Code section 5402 and awarded benefits; the ...
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530 U.S. 914 (2000) STENBERG, ATTORNEY GENERAL OF NEBRASKA, ET AL. v. CARHART No. 99-830. United States Supreme Court. Argued April 25, 2000. Decided June 28, 2000. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *916 *916 *917 *918 Breyer, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Stevens, J., filed a concurring...
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This appeal presents the question whether the district court properly excluded unstipulated polygraph evidence. We conclude that it did and affirm the judgment of conviction. I Juan A. Benavidez-Benavidez (“Benavi-dez”) was arrested, along with Blanca Veronica Ruiz-Aguiar, as he tried to enter the United States in a van at the Lukeville, Arizona port of entry. When questioned by customs agent...
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delivered the opinion of the Court. This case focuses on the 1984 version of a Federal Motor Vehicle Safety Standard promulgated by the Department of Transportation under the authority of the National Traffic and Motor Vehicle Safety Act of 1966,80 Stat. 718,15 U. S. C. §1381 et seq. (1988 ed.). The standard, FMVSS 208, required auto manufacturers to equip some but not all of their *8651987 vehicl...
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217 F.3d 707 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.TERESA MARIA CAMPOS, Defendant-Appellant. No. 97-50635 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted March 9, 2000--Pasadena, CaliforniaFiled June 28, 2000 [Copyrighted Material Omitted] Frank Murphy, III, San Diego, California, for the defendant-appellant. Antonio ...
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Opinion by Judge W. FLETCHER; Dissent by Judge SNEED. These class actions arose from two disturbances in the Arizona State Prison in Safford, Arizona: one in August 1995 and the other in December of the same year. Although the district court resolved the cases separately, we consolidate them because they are factually similar and present identical legal issues. In each case, prison officials quel...
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C. A. 3d Cir. Motions of Medical Device Manufacturers Association, Danek Medical, Inc., Product Liability Advisory Council, Inc., and Pharmaceutical Research and Manufacturers of America for leave to file briefs as amici curiae granted. Certio-rari granted limited to the following question: “Whether federal law pre-empts state-law tort claims alleging fraud on the Food and Drug Administration duri...
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Plaintiffs Joseph, Theresa and Michelle Radici (together, “the Radicis”) brought an action against their group health insurer's, Associated Insurance Companies, Inc., and Blue Cross and Blue Shield of Indiana (together, “AICI”). The Radicis’ amended *739 complaint alleged that AICI unlawfully terminated Michelle’s health insurance coverage, resulting in her death. The district cour...
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Defendant Darrel Richard Smith appeals his conviction and sentence following a jury trial. Smith was convicted of violating 18 U.S.C. § 922(o)(l), possession of a machine gun. Smith argues that the district court erred in denying his motion to suppress the evidence obtained as a result of an investigatory stop of his vehicle. Furthermore, he asserts that 18 U.S.C. § 922(o)(l) exceeds Congress’ po...
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Johnie M. Williams pleaded guilty to one count of embezzlement within the special maritime and territorial jurisdiction of the United States in violation of 18 U.S.C. § 661, and one count of making false statements to a department of the United States in violation of 18 U.S.C. § 1001. The sole issue on appeal is whether in its sentencing calculations the district court erred in considering, as re...
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Opinion —In enacting the Roberti-Roos Assault Weapons Control Act of 1989 (Stats. 1989, ch. 19, § 3, p. 64; hereafter AWCA), the Legislature imposed restrictions on a class of semiautomatic firearms it characterized as “assault weapons.” (Pen. Code, § 12275 et seq.)1 The restrictions were necessary, the Legislature found and declared, because each of the semiautomatic firearms designated as an as...
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Opinion Introduction This is an action upon a guaranty. The guarantor moved for summary judgment on the basis that the secured creditor’s failure to give him postdefault notice of the sale of the collateral barred its claim for a deficiency judgment. Based upon statutory and decisional law, the trial court found that the guarantor’s predefault waiver of the requirement of notice was void as a mat...
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Opinion Introduction Plaintiff and appellant Craig Raymond Freis appeals from a judgment in favor of defendants and respondents the City of Los Angeles and certain officials following the sustaining of a demurrer, without leave to amend, to plaintiff’s complaint. Plaintiff is the owner of certain gas and oil royalties payable by the City of Los Angeles. Because plaintiff refused...
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Opinion Introduction A defendant in pending civil litigation seeks to compel discovery from a state agency of records that are relevant to his defense in the underlying case. The records are memoranda from the state agency to the Governor’s Office. The trial court denied a motion to compel production, agreeing with the state agency that such memoranda are absolutely privileged on the...
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217 F.3d 1057 (9th Cir. 2000) MANUEL CASTRO-BAEZ, Petitioner-Appellant,v.JANET RENO, Attorney General; DORIS MEISSNER, INS Commissioner; IMMIGRATION AND NATURALIZATION SERVICE; Executive Office for Immigration Review, Board of Immigration Appeals, Respondents-Appellees. No. 99-70484 U.S. Court of Appeals for the Ninth Circuit Submitted June 23, 20001Filed June 30, 2000 ...
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216 F.3d 882 (9th Cir. 2000) In Re: S.S. RETAIL STORES CORPORATION, dba: Sesame Street General Stores, Debtor.S.S. RETAIL STORES CORPORATION, dba: Sesame Street General Stores, Appellee,v.LINDA STANLEY EKSTROM, Trustee-Appellant. No. 99-16413 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 5, 2000--Pasadena, CaliforniaFiled June 30, 2000 Daniel L. ...
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216 F.3d 881 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.SALVADOR AVILES, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MIGUEL ANGEL BARRENECHEA, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RAFAEL CORNEJO, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.CARLOS A. PEREZ, Defendant-Appellant. No. 96-10110, No. ...
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Opinion We publish this opinion to confirm that, as the plaintiff in this case claims, there is nothing in the Civil Discovery Act (Code Civ. Proc., § 2016 et seq.) to prevent a party from conducting a unilateral investigation without resort to any statutory discovery device, provided only that the investigation is lawful. 1 We issue a peremptory writ as prayed. Facts On a rainy day in Fe...
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Opinion Plaintiff and appellant Arteena Rubenstein (Arteena) appeals a judgment following a grant of summary judgment in favor of defendant and respondent Alan Douglas Rubenstein (Alan). 1 This is a civil action by Arteena to set aside on the grounds of fraud and perjury a 1994 judgment in a marital dissolution proceeding obtained in the family court, and to recover damages. ...
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Opinion Plaintiffs Lev Shvarts and Michael Holtz appeal from an order of dismissal after the trial court sustained a demurrer without leave to amend their first amended complaint. Appellants sued Budget Group, Inc. (respondent), a car rental company, for unfair business practices based on refueling charges for rental cars returned without full gas tanks. We conclude that the trial court d...
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Opinion The Director of the Department of Motor Vehicles (herein DMV), appeals from the judgment of the superior court granting George Clifford Baker’s (herein Baker) petition for alternative writ of mandamus requiring the DMV to set aside its order suspending Baker’s driver’s license. Procedural Background and Facts On January 10, 1999, at approximately 1:47 a.m., Baker was observed by Off...
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Opinion Plaintiffs and appellants Martin Cecil True and Nannette True, husband and wife,1 appeal from a judgment entered in favor of defendants Donald H. Shank, Debra C. Shank, Keller Industries, Inc. (Keller) and Kmart Corporation (Kmart)2 and against plaintiffs, after the trial court granted defendants’ motion for nonsuit. Plaintiffs contend that the trial court erred by (1) granting defendants...
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Opinion In this case we consider de novo whether a member of the Torrance City Council may appeal the decision of that city’s planning *1209 commission to grant a conditional use permit, participate in the public hearing and city council deliberations on the appeal, and vote on that appeal. We also review for any substantial evidence the denial by that city council of an appl...
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98 Cal.Rptr.2d 497 (2000) 81 Cal.App.4th 1175 Keith GOFFNEY, Plaintiff and Appellant, v. FAMILY SAVINGS AND LOAN ASSOCIATION et al., Defendants and Respondents. No. B119732. Court of Appeal, Second District, Division Two. May 31, 2000. As Modified on Denial of Rehearing June 30, 2000. Review Denied August 30, 2000.[*] *501 Keith Goffney, in pro. per., for Plaintiff and Appellant. Cameron & Dr...
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California state prisoner Eppie McClain appeals the district court’s denial of his petition for habeas corpus in which he challenged his conviction for second-degree robbery. McClain, who is black, asserts that at his state trial the prosecutor exercised peremptory challenges to exclude all blacks from the jury in violation of the Equal Protection Clause of the Fourteenth Amendment, as articulate...
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William Kelvin Houston (“Houston”) pleaded guilty to two counts of bank robbery pursuant to 18 U.S.C. § 2113(a). At sentencing, the district court enhanced Houston’s base offense level by two, pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2B3.1(b)(2) for express threats of death Houston allegedly made to two bank tellers during the course of the robberies. Houston asserts error in...
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We must resolve a variety of issues in this complex trademark litigation arising out of the U.S. activities of two members of the large and prominent Gracie family of Brazil, known for popularizing, competing in, and teaching a form of the martial art jiu-jitsu. I Carley Gracie (“Carley”) and Rorion Gracie (“Rorion”)2 are first cousins. More than 38 members of this Brazilian family have been invol...
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217 F.3d 1081 (9th Cir. 2000) ASPEN GREEN; NEALE ALLEN, JON MICHAEL; DORITA BRADY; WALLACE L. CRAIG; JUDY LESTER, RESIDENTS AND QUALIFIED ELECTORS IN TORTOLITA, PLAINTIFFS-APPELLANTS,V.CITY OF TUCSON, AN ARIZONA MUNICIPAL CORPORATION, DEFENDANT-APPELLEE. No. 99-15625 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 5, 2000July 6, 2000 Willi...
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217 F.3d 1072 (9th Cir. 2000) IN RE: ELMAR LEE PETTIT AND AUDREY JEAN PETTIT, DEBTORS.IN RE: NORTH BAY PLUMBING, INC., DEBTOR.MCCARTHY, JOHNSON & MILLER, A LAW FIRM; JOHN J. DAVIS; DIANE SIDD-CHAMPION, APPELLEES,V.NORTH BAY PLUMBING, INC.; ELMAR LEE PETTIT, A/K/A ELMAR LEE PETTIT; AUDREY JEAN PETTIT, DEBTORS-APPELLANTS.IN RE: ELMAR LEE PETTIT AND AUDREY JEAN PETTIT, DEBTORS.IN RE: NORTH BA...
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Opinion by Judge T.G. Nelson; Dissent by Judge Graber Fred Albano Fuchs and Roy Reagan appeal their convictions and sentences for conspiring to commit offenses against the laws of the United States. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse. I. The United States Forest Service has traditionally relied on contracting with private parties to provide airtanker services for fightin...
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Raohl D. Hursh (“Hursh”) appeals his jury convictions and sentence for importation of marijuana in violation of 21 U.S.C. §§ 952 and 960, and for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we AFFIRM Hursh’s convictions and sentence. I FACTUAL BACKGROUND On January 15, 19...
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Louis Sauza-Martinez (“Sauza”) appeals his convictions by a jury in a joint trial with codefendants Robert Burns (“Burns”), Blanca Ester Ortiz (“Ortiz”), and Rafael Leyva-Felix (“Leyva”) for conspiracy to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846, possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1), distribution of cocaine in violation of ...
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214 F.3d 1128 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JUVENILE (RRA-A), Defendant-Appellant. No. 98-50368 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Filed July 6, 2000 Before: NELSON, REINHARDT, and TROTT, Circuit Judges. ORDER 1 The Opinion filed December 15, 1999 [199 F.3d 998]...
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Opinion Plaintiff Harry G. Cooper appeals from an order denying his motion to recover from defendant Westbrook Torrey Hills, LP (Westbrook), 2 costs Cooper incurred in making a cash deposit which stayed foreclosure proceedings initiated by Westbrook. Cooper contends the loan costs are recoverable under rule 26(c), California Rules of Court. 3 We agree with Cooper and...
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217 F.3d 1246 (9th Cir. 2000) EXXON MOBIL CORPORATION, Petitioner,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; CAROL BROWNER, Administrator of the United States Environmental Protection Agency, Respondents. No. 99-70945 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 26, 2000--San Francisco, CaliforniaFiled July 7, 2000 Craig E. Stewart, San Fr...
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Aybike Kortan, a Clinical Staff Psychologist for the State of California Department of Youth Authority (CYA), appeals the summary judgment entered in CYA’s favor on her action under 42 U.S.C. § 2000e alleging hostile work environment, retaliation, and gender discrimination. In a published opinion, the district court declined to consider evidence of harassment not mentioned in the complaint or in K...
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ORDER The court’s opinion filed September 7, 1999, and reported' at 188 F.3d 1079 (9th Cir.1999), is vacated and withdrawn. With the filing of this opinion, the panel now affirms the Board of Immigration Appeals’ finding that Pichardo was inadmissible under the Immigration and Nationality Act in light of his conviction for making a false claim to United States citizenship. OPINION Pursuant to Fed...
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In this case we are called upon to determine whether William J. Ray suffered adverse employment actions after complaining of harassment at his workplace. We hold that in our circuit an adverse employment action is adverse treatment that is reasonably likely to deter employees from engaging in protected activity. Under this standard, we conclude that Ray suffered cognizable adverse employment ac...
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Maurilio Garza-Sanchez (“Garza”) appeals his conviction of being an alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. He contends that the underlying deportation was unlawful and cannot be used to support his conviction under § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291. We hold that Garza validly waived the right to appeal his deportation, an...
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The United States appeals the district court’s order granting defendant, Daniel Kellington, a new trial. Because we find no abuse of discretion in the district court’s decision, we affirm and remand the case for re-trial. I. Factual Background A. Pre-Verdict Proceedings Daniel Kellington is an experienced civil attorney from Medford, Oregon specializing in personal injury law and trusts and estate...
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216 F.3d 881 (9th Cir. 2000) DONALD MACFARLANE and JAMES FOGLE, Petitioners-Appellants,v.KAY WALTER and KENNETH DUCHARME, Respondents-Appellees. No. 97-35725 U.S. Court of Appeals for the Ninth Circuit Filed July 7, 2000 D.C. No. CV-96-05688-FDB Before: Otto R. Skopil, Jr., Stephen Reinhardt, and Susan P. Graber, Circuit Judges. 1 Prior report...
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ORDER The opinion filed on April 19, 2000 [209 F.3d 1091], is hereby ordered AMENDED by the addition of a footnote at the end of the first full paragraph on page 4220 [209 F.3d at 1094] of the slip opinion. The footnote shall read: We need not remand Daniel’s sentence for reconsideration in light only of his violation as alleged in Charge III, because the district court made it perfectly clea...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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AMENDED OPINION Debtor/Defendant Hung Tam Pham (Pham) entered into two cardmember agreements with appellant, AT & T Universal Card Services Corporation. Pham made no payments on either account, and exceeded his credit limits by writing payment checks on insufficient funds, and then using the accounts in the interval before the credits for those checks were reversed. The bankruptcy co...
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Opinion This appeal and petition for writ of habeas corpus arise from a series of incidents in which appellant Arthur Ray Jennings committed acts of domestic violence against victim Katherine T. 1 A jury convicted appellant of felony assault and aggravated assault by means of force likely to produce great bodily injury, as well as the two misdemeanors of dissuading a victim by ...
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Custom Chrome, Inc., an indepepdent supplier of Harley-Davidson motorcycle parts and accessories, and its subsidiaries, appeal from the decision of the Tax Court determining deficiencies in Custom Chrome’s income taxes for the tax years 1992-1994. Specifically, Custom Chrome appeals the Tax Court’s determination that warrants issued by Custom Chrome to its lender in connection with a loan trans...
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Opinion by Judge ALDISERT; Concurrence by Judge W. FLETCHER; Dissent by Judge KLEINFELD. This appeal by Joanne Fielder from summary judgment entered by the district court, a magistrate judge presiding, presents questions of hostile work environment and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Issues raised by Appellant require us to decide (1) whether ...
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219 F.3d 895 (9th Cir. 2000) PERSHING PARK VILLAS HOMEOWNERS ASSOCIATION, an unincorporated and non-profit Homeowners Association; CSP-PERSHING, LTD., a California Limited Partnership; HARRY BIGHAM; TIMOTHY PENKALA; and JOSEPH JOHN, Plaintiffs-Appellees,v.UNITED PACIFIC INSURANCE COMPANY, a Washington corporation; and RELIANCE INSURANCE CO., Defendants-Appellants. No. 98-56261 ...
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I. Alan Stuart and G. Raleigh Hanbury (“Stuart”) filed this lawsuit-in the Superior Court of California against UNUM Life Insurance Company of America (“UNUM”) and Desert Hospital, Stuart’s employer, alleging breach of insurance contract, tortious breach of insurance contract, and loss of consortium. UNUM and Desert Hospital collectively removed the action to the United States District Cou...
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Richard Dehart Charlesworth appeals the sentence imposed by the district court following his guilty plea to a charge of escape in violation of 18 U.S.C. § 751(a). The district court held that Charlesworth was not entitled to the four-level reduction for escape from non-secure custody under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2Pl.l(b)(3) (1998) because the Guideline disallows the redu...
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Plaintiff Ramesh Sharma (“Sharma”) appeals the district court’s order modifying the terms of his settlement agreement (the “Settlement Agreement” or the “Agreement”) in Sharma’s qui tam action against the University of Southern California (“USC”) under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3731. FACTUAL AND PROCEDURAL BACKGROUND In 1996, Dr. Ramesh Sharma brought a qui tam a...
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97 Cal. Rptr. 2d 638 (2000) 23 Cal. 4th 679 2 P.3d 1180 Ronnie BARNES, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, Employment Development Department et al., Respondents. No. S082111. Supreme Court of California. July 10, 2000. *640 Ronnie Barnes, in pro. per.; Joseph V. Capurro, San Jose; Law Office of Marilee Jones-Cofield and Marilee Jones-Cofield, Los Angeles, for Petitioner. Joseph V....
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Opinion In this insurance action, an insured sued an insurer and a broker. The insurer cross-claimed against the broker for indemnity. The insured and the broker settled. The trial court found that the settlement was *1416made in good faith and dismissed the insurer’s cross-claims against the broker. The insurer sought relief by way of a petition for writ of mandate, which was summarily denied. A...
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I respectfully dissent. I disagree with that portion of the majority’s opinion holding that Kitzig presented evidence from which the jury could reasonably infer “she did not suspect her continuing dental problems were caused by Dr. Nordquist’s wrongdoing.” (Maj. opn., ante at p. 1394.) The majority’s holding ignores settled law on accrual of causes of action and the delayed discovery exception to ...
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Opinion Introduction Nine-year-old Brison C. is the focus of an extended battle between his parents, appellants herein. Respondent Fresno County Department of Children and Family Services entered the fray after mother claimed that Brison had been sexually molested by his father and father claimed mother had physically abused the boy. Both claims were deemed unfounded after investigation. Responden...
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This is an action for declaratory and injunctive relief brought by the American Association of Medical Colleges, the American Medical Association, a host of other medical associations, and numerous teaching hospitals against the Office of the Inspector General for the Department of Health and Human Services and the Department of Justice. Plaintiffs allege that the government has initiated a nation...
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Petitioner appeals the district court’s denial of habeas relief from a magistrate’s issuance of an extradition certificate and an order of commitment. The magistrate has found that petitioner is likely to be tortured if he is surrendered to the requesting government, but has nonetheless issued the extradition certificate. The United Nations .Convention Against Torture and Other Forms of Cruel, Inh...
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Richard W. Deppe appeals an adverse summary judgment in his discrimination claim under the Americans with Disabilities Act. Jurisdiction herein is vested by 28 U.S.C. § 1291. For the reasons assigned, we reverse. BACKGROUND Deppe was employed by United Airlines, Inc., as an aircraft radio and electronic line mechanic at its San Francisco Airport facility, from December 1985 until his terminat...
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221 F.3d 1127 (9th Cir. 2000) CIRILO DURAN; ZENAIDA DURAN, Plaintiffs-Appellants,v.CITY OF MAYWOOD; WILLIAM B. WALLACE, individually and as a peace officer; GIL BOWMAN, individually and as Chief of Police; RICK CURIEL, Defendants-Appellees. No. 97-55262 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 10, 2000Filed July 11, 2000 [Copyrighted Mat...
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The City of El Paso (“City” or “El Paso”) appeals the district court’s order affirming the bankruptcy court’s decision granting summary judgment in favor of the debtor, America West Airlines, Inc. (“America West”), and denying El Paso’s motion for summary judgment. El Paso contends that the courts below erred in disallowing its tax claim pursuant to 11 U.S.C. § 502(d). We have jurisdiction unde...
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217 F.3d 1256 (9th Cir. 2000) In re: COMPTON IMPRESSIONS, LTD., a California limited partnership, Debtor.COMPTON IMPRESSIONS, LTD., a California limited partnership, Appellant,v.QUEEN CITY BANK, N.A.; CERRITOS VALLEY BANK; PACIFIC BUSINESS BANK, Appellees.In re: COMPTON IMPRESSIONS, LTD., a California limited partnership, Debtor.QUEEN CITY BANK, N.A.; CERRITOS VALLEY BANK; PACIFIC BUSINESS BAN...
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OVERVIEW Wayne Dale Schell (“Schell”) appeals a district court judgment denying his 28 U.S.C. § 2254 pro se petition for a writ of habeas corpus. 2 Without holding a requested evidentiary hearing into Schell’s claims, the court predicated its decision on the Report and Recommendations of a magistrate judge. We have jurisdiction of this timely appeal pursuant to 28 U.S.C. § 2253...
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218 F.3d 1001 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOSE ALFREDO REYES-PLATERO, Defendant-Appellant. No. 99-50234 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued May 3, 2000.Filed July 11, 2000. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE AMENDED AND SUPERSEDED OPINION AT 224 F.3d 1112. ...
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This case involves a challenge to Washington statute RCW 72.09.480 (the “Statute”), which authorizes a deduction of 35% from all funds received by inmates from outside sources. Washington inmate, Paul Wright, on behalf of himself and a class of similarly situated individuals (hereinafter collectively referred to as “the Class”) appeals the district court’s dismissal of the Class’s Due Process a...
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Opinion Appellants Richard U. Lealao and his wife Sese Lealao, who commenced this successful consumer class action, claim that the attorney fees awarded class counsel were unreasonably low. The questions before us are whether, under the circumstances of this case, the trial court had discretion to award a fee based solely on a percentage of the class benefit or, in the alternative, to mea...
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97 Cal. Rptr. 2d 824 (2000) 82 Cal. App. 4th 61 The PEOPLE, Plaintiff and Respondent, v. Carl McCee FOUNTAIN, Defendant and Appellant. No. C028465. Court of Appeal, Third District. July 10, 2000. Review Denied October 25, 2000. *825 Lori Klein, under appointment by the Court of Appeal, Santa Cruz, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamso...
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97 Cal. Rptr. 2d 830 (2000) 82 Cal. App. 4th 71 The PEOPLE, Plaintiff and Appellant, v. Robert CAMPBELL, Defendant and Respondent. No. D034190. Court of Appeal, Fourth District, Division One. July 11, 2000. Review Denied October 25, 2000.[*] *831 Paul J. Pfingst, District Attorney, Thomas F. McArdle and Anthony Lovett, Deputy District Attorneys, for Plaintiff and Appellant. Anna M. Jauregui, unde...
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218 F.3d 1040 (9th Cir. 2000) BIRTH HOPE ADOPTION AGENCY, INC., an Arizona corporation, Plaintiff-Appellant, v.ARIZONA HEALTH CARE COST CONTAINMENT SYSTEM, an agency of the State of Arizona, aka, Arizona Health Care Cost Containment System, aka AHCCCS; MABEL CHEN, as Director of the Arizona Health Care Cost Containment System Administration; JOHN H. KELLY, Acting Director of the Arizona Heal...
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218 F.3d 1045 (9th Cir. 2000) ROBERT DEVEREAUX, Plaintiff-Appellant,v.ROBERTO RICARDO PEREZ, Defendant,andTIMOTHY DAVID ABBEY; LAURIE ALEXANDER; KATE CARROW; LINDA WOODS; EARL TILLY, in his official capacity as Public Safety Commissioner for the City of Wenatchee; CITY OF WENATCHEE, a municipal corporation; WASHINGTON STATE DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Defendants-Appellees. ...
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217 F.3d 1168 (9th Cir. 2000) ALLAN J. FAVISH, Plaintiff-Appellant,v.OFFICE OF INDEPENDENT COUNSEL, Defendant-Appellee. No. 98-55594 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted November 1, 1999--Pasadena, CaliforniaFiled July 12, 2000 [Copyrighted Material Omitted] Allan J. Favish, pro se, Tarzana, California, for the plaintiff-appellant. ...
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223 F.3d 1064 (9th Cir. 2000) In re: THOMAS A. GREENE, aka Radiator Service, Inc., and BOBBY JEAN GREENE, Debtors.MBNA AMERICA, Appellant,v.JEFFRY G. LOCKE, Trustee, Appellee. No. 98-16539 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Submitted December 8, 19991 San Francisco, CaliforniaFiled July 12, 2000 [Copyrighted Material Omi...
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Opinion by Judge FLETCHER; Dissent by Judge O’SCANNLAIN. James F. Robinson brought suit against Solano County and Officers Brian Cau-wells and Gary Faulkner alleging false arrest, false imprisonment, and the use of excessive force in arresting him. Robinson appeals from the district court’s pretrial grant of summary judgment for the defendants-appellees on the state law claims and the magistrate j...
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Petitioner-appellant Victor Solis was convicted by a jury in California state court of second-degree murder and was sentenced to sixteen years to life in prison. He seeks habeas relief on the grounds that the trial court judge (1) failed to instruct the jury on the elements of the predicate crime he was alleged to have committed as an aider and abettor; (2) failed to instruct the jury on lesser...
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218 F.3d 1064 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ARTURO ESTRADA-MACIAS, Defendant-Appellant. No. 97-10115 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted September 18, 1998--San Francisco, CaliforniaFiled July 12, 2000 Matthew C. Bockmon, Assistant Federal Defender, Sacramento, Califor...
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Opinion It is settled, and not disputed by the parties, that a claim for punitive damages is one of the substantive areas which is properly the subject of a motion for summary adjudication. (DeCastro West Chodorow & Burns, Inc. v. Superior Court (1996) 47 Cal.App.4th 410, 421 [54 Cal.Rptr.2d 792].) In this writ of mandate proceeding, we must answer a question of first impressio...
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218 F.3d 1070 (9th Cir. 2000) In re KAYPRO, Debtor.ARROW ELECTRONICS, INC., Appellant,v.HOWARD JUSTUS, Trustee, Appellee.In re KAYPRO, Debtor.ARROW ELECTRONICS, INC., successor-in-interest to SCHWEBER ELECTRONICS, INC., Appellant,v.HOWARD JUSTUS, Trustee, Appellee. No. 99-55206, No. 99-55210 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and ...
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We must decide whether the Internal Revenue Service may levy upon ERISA-regulated pension benefits to satisfy a husband’s tax debt against the claim that the wife has a vested interest in half of those benefits under community property laws. I Waltrout McIntyre’s husband and co-debtor, Jerry McIntyre, owed almost $300,000 in overdue federal income taxes for the years 1983-1995. In 1996, the I...
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Tentó International, Inc. (“Tentó”) appeals the district court’s dismissal of its claims against State Farm Fire and Casualty Company (“State Farm”). A third-party contractor making repairs to the roof of Tento’s rented business premises neglected to place a temporary covering over an open space in the roof, allowing rain to damage Tento’s electronics equipment. State Farm denied coverage under it...
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97 Cal.Rptr.2d 906 (2000) 23 Cal.4th 743 3 P.3d 278 PEOPLE, Plaintiff and Respondent, v. Juan Carlos CASTENADA, Defendant and Appellant. No. S069237. Supreme Court of California. July 13, 2000. *907 Sharon L. Rhodes, under appointment by the Supreme Court, Chula Vista, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney G...
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Opinion On January 20, 1998, appellant burglarized a house on Cardary Street in Hawthorne. A jury found him guilty of that crime, and *101 found that he previously had been convicted of assault with a deadly weapon in violation of Penal Code section 245, subdivision (a) in January of 1983, robbery in violation of Penal Code section 211 in August of 1984, and possession of a controlled substan...
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Opinion A surety on two bail bonds appeals from the denials of its motions to set aside the summary judgments entered against it, to vacate the forfeiture of the bonds, and to exonerate it from any liability. We affirm. Factual and Procedural Background On June 13, 1996, the National Automobile and Casualty Insurance Company, as surety (Surety), posted two $15,000 bail bonds on ...
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Opinion A police officer had probable cause to search a house after an informant pointed it out to him. He obtained a warrant to search that house, preparing and signing the supporting affidavit himself, and he personally executed the warrant on the house the informant had shown him. The warrant’s description and address of the house to be searched differed somewhat from the description and addres...
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We are presented with the question whether, in an action in which the district court’s jurisdiction is supplemental, federal or state law governs the recoverability of attorney’s fees incurred in filing a motion under Federal Rule of Civil Procedure 65.1 to enforce a supersedeas bond posted under Federal Rule of Civil Procedure 62(d). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we ag...
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These three appeals stem from a shift in the battlegrounds that former spouses Salvatore DiSalvo (“Salvatore”) and Jody Di-Salvo (“Jody”) have chosen for resolution of their disputes, moving from a state domestic relations tribunal to the federal bankruptcy court: 1. In No. 98-56166 Salvatore appeals a May 15, 1998 decision of this Circuit’s Bankruptcy Appellate Panel (“BAP”) reported at 2...
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Anatoly Michaelovich Kozulin petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his application for asylum and withholding of deportation under 8 U.S.C. §§ 1158(a), 1253(h) (1994). We deny the petition, because substantial evidence supports the conclusion that Kozulin failed to prove: (1) that any mistreatment he suffered was on account of his political opinion, o...
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Patrick Tocher (“Tocher”), the operator of a tow truck business in Santa Ana, California, filed this action against the City of Santa Ana (“City”), alleging that the city’s ordinances regulating the automobile towing industry are preempted by 49 U.S.C. § 14501(c). The district court concluded that Santa Ana’s tow truck ordinances were preempted by section 14501(c) and entered a judgment permanentl...
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218 F.3d 1118 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.FABIAN BARRIOS-GUTIERREZ, Defendant-Appellant. No. 99-10148 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 15, 2000--San Francisco, CaliforniaFiled July 14, 2000 Atmore Baggott, Apache Junction, Arizona, for the defendant-appel...
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Opinion I. Introduction Defendant, David Valencia, appeals after he was convicted of second degree murder; discharging a firearm into an inhabited dwelling; and grand theft of an automobile. (Pen. Code,1 §§ 187, 246, 487, subd. (d).) Additionally, the jury found defendant personally used a firearm within the meaning of section 12022.5, subdivision (a)(1). Further, the jury found defendant personal...
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Opinion Injured employee, Alberta Rucker, seeks review of an order of the Workers’ Compensation Appeals Board (Board), denying her demand for advances against permanent disability (PDA), as permitted under Labor Code section 139.5, subdivision (d), and a penalty due to the employer’s failure to pay it, pursuant to Labor Code section 5814.1 We agree that the Board should have granted her petition ...
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Celia Aleman (“Aleman”), a 62-year-old permanent resident alien, appeals the district court’s dismissal of her action challenging a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub.L. No. 104-193, 110 Stat. 2105 (1996) (the ‘Welfare Reform Act” or the “Act”), the application of which denied her food stamps from September of 1997 to November 1, 1998. ...
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Columbia River People’s Utility District (“CRPUD”) appeals the grant of summary judgment in an antitrust action brought against Portland General Electric Company (“PGE”). The dispute focuses on the right to sell electrical power to the Boise Cascade plant in St. Helens, Oregon. The district court dismissed the case under the rationale that PGE’s actions were cloaked with state-action immunity f...
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Lynn Couveau brought an employment discrimination action against American Airlines under California’s Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12900 et seq.2 She alleged that American wrongfully failed to- reinstate her from medical leave, wrongfully terminated her employment, and denied her full benefits and backpay on reinstatement. American Airlines moved for summary judgment o...
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Opinion by Judge MCKEOWN; Concurrence by Judge TASHIMA; Concurrence by Judge MCKEOWN. This case requires us to address a threshold issue of controlling law. We must determine what law governs a challenge to a final appraisal decision issued pursuant to a commercial contract. Portland General Electric (“PGE”) and the United States Bank Trust National Association (“the Trust”) were parties to a lea...
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224 F.3d 1087 (9th Cir. 2000) TONY EUGENE SAFFOLD, Petitioner-Appellant,v.ANTHONY NEWLAND, Respondent-Appellee. No. 99-15541 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2000Filed July 17, 2000 1 NOTE: SEE AMENDED OPINION OF MAY 23, 2001 AT 250 F.3d 1262. ...
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221 F.3d 1133 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MARK C. ALBERS; JIM T. FREEGARD; DAVID W. MORAN; ERIN MORAN; DAVID PIERCE; CARMEL PRESSE; J. LYLE PRESSE; JEFF SCHABS; MARK SHEEHAN; KIRK SMITH; DAVID M. STROBEL; STEVE VAN HORN, Defendants-Appellants. No. 99-10071 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 7, 2000Filed Jul...
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Following a jury trial in the United States District Court for the District of Idaho, Dennis Guy Clark (“Clark”) was convicted of the following federal offenses arising from his involvement in the burglary of a pawn shop in Salmon, Idaho: distribution of marijuana in violation of 21 U.S.C. § 841(a)(1); theft of firearms moved in interstate commerce in violation of 18 U.S.C. § 924(i); theft of f...
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Opinion Prior to trial, defendant moved to suppress evidence obtained in the garage of his residence as a result of a warrantless search and seizure by police. The trial court denied the motion because defendant’s brother, with whom defendant lived, had agreed to submit his person and property to warrantless police searches and seizures as a condition of probation. It is *793undisputed that the o...
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98 Cal. Rptr. 2d 1 (2000) 23 Cal. 4th 754 3 P.3d 286 Robert SNUKAL, Plaintiff, Cross-defendant and Respondent, v. FLIGHTWAYS MANUFACTURING, INC., Defendant, Cross-complainant and Appellant. No. S067271. Supreme Court of California. July 17, 2000. *6 Akre, Bryan & Chang, Ronald A. Selgrath and Geoffrey L. Bryan, Los Angeles, for Defendant, Cross-complainant and Appellant. Law Offices of David ...
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Opinion Appellant Raymond Dunkin’s action against respondent Lisa Boskey for breach of contract was dismissed after the trial court sustained a demurrer without leave to amend. We conclude that an agreement between the parties to grant appellant paternity rights to a child conceived by artificial insemination is binding, and may be enforced to the extent of an action for unjust enrichment. We the...
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219 F.3d 962 (9th Cir. 2000) ESTHER JOSEPHINE BUNUAN AGBUYA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70965 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted June 16, 1999--San Francisco, CaliforniaMemorandum Disposition and Dissent Filed September 2, 1999Withdrawn: July 12, 2000Opinion Fil...
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219 F.3d 941 (9th Cir. 2000) IVOR F. BENCI-WOODWARD and DEBRA A. BENCI-WOODWARD, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.LAURENTZ J. MANGUM and BARBARA MANGUM, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.JOSE RAGATZ and DIANNE M. RAGATZ, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. ...
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Rex K. DeGeorge petitions this court for a writ of mandamus commanding the United States District Court for the Central District of California to (1) vacate its order denying DeGeorge’s motion to dismiss certain counts for which he has been indicted as time barred, and (2) enter an order dismissing those counts. We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Because DeGeo...
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May an absent parent who owes money to the County for child support payments made by the County prior to the entry of a child support order have that debt discharged in a Chapter 13 bankruptcy proceeding? We recently held, in the context of a Chapter 7 bankruptcy, that an absent parent is not entitled to discharge such a debt. See In re Leibowitz, 217 F.3d 799 (9th Cir.2000). This co...
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Opinion I. Introduction “Because we so abhor the involuntary separation of parent and child,” wrote Justice Baxter for the court in In re Kieshia E. (1993) 6 Cal.4th 68, 76 [23 Cal.Rptr.2d 775, 859 P.2d 1290], “the state may disturb an existing parent-child relationship only for strong reasons and subject to careful procedures.” (Ibid.) Not surprisingly then, California law requires that there be ...
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98 Cal.Rptr.2d 63 (2000) 82 Cal.App.4th 200 J. Scott McFETTERS, Plaintiff and Appellant, v. AMPLICON, INC., et al., Defendants and Respondents. No. G021374. Court of Appeal, Fourth District, Division Three. July 17, 2000. Review Denied November 15, 2000.[*] *67 Brady, Kwong & Crisp, and M. Christine Brady, Irvine, for Plaintiff and Appellant. Latham & Watkins, Jon D. Anderson, Costa Mesa,...
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Valley Bank issued an Irrevocable Standby Letter of Credit to Omega Environmental, Inc., in exchange for a promissory note payable to the Bank. The note was secured by a certificate of deposit (“CD”). The Bank received and honored a request for payment of the full amount of the Letter of Credit. The Bank later moved the bankruptcy court for an order terminating an automatic stay issued pursuant...
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219 F.3d 1063 (9th Cir. 2000) SAMUEL FIRESTONE; CALVIN MIYASHIRO; JACK PUTNAM; BRIAN FRAZEN, individually and on behalf of all other present and former employees similarly situated, Plaintiffs-Appellants,v.SOUTHERN CALIFORNIA GAS COMPANY, Defendant-Appellee. No. 98-56468 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted...
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Brent Mower is a former employee of Union Pacific Railroad Company (“UP”). UP obtained a broad injunction against Mower, prohibiting him from disclosing or revealing to third parties any confidential information he obtained while employed by UP. Mower appeals the issuance of that injunction. The basis of the district court’s jurisdiction was 28 U.S.C. § 1332, and we have jurisdiction pursuant t...
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John L. Ciccone appeals his conviction and sentence for one count of conspiracy, 18 U.S.C. § 371, thirty-four counts of wire fraud and aiding and abetting, 18 U.S.C. § 1343 and 2, thirty-six counts of money laundering and aiding and abetting, 18 U.S.C. §§ 1956(a)(l)(A)(I) and 2, and one count of forfeiture, 18 U.S.C. § 982(a)(1). We affirm both his conviction and sentence. FACTUAL BACKGROUND ...
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251 B.R. 95 (2000) In re Eric Dean BOGGAN, Debtor. Eric Dean Boggan, Appellant, v. Hoff Ford, Inc., d/b/a, Hall-Copeland Ford, Lincoln, Mercury, Mazda, Appellee. BAP No. ID-00-1041-RYKR. Bankruptcy No. 99-20917, Adversary No. 99-6190. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted May 16, 2000. Decided July 7, 2000. *96 *97 Milan E. Miller, Lewiston, ID, for E...
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251 B.R. 86 (2000) In re Harry ROUSSOS; Theodosios Roussos, dba Roussos Investments, Debtors. Harry Roussos; Theodosios Roussos, Appellants, v. Lula Michaelides, Appellee. BAP No. CC-99-1351-MaMeB. Bankruptcy No. SV93-31261-AG. Adversary No. SV94-03765-AG. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted March 22, 2000. Decided July 7, 2000. *87 *88 David R. Hab...
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*299Opinion This is an appeal from an injunction constraining the manner in which the state may conduct an investigation of alleged criminal misconduct by state prison guards at a penal institution. The superior court issued a preliminary injunction against the California Department of Justice (DOJ) and the California Department of Corrections (CDC), limiting their conduct in investigating allege...
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*329Opinion Introduction Janet McLaughlin appeals from the trial court’s entry of a judgment of marital dissolution ending her marriage to respondent Donald T. McLaughlin. Appellant contends judgment should not have been entered in the absence of statutorily required declarations of disclosure regarding the parties’ assets and liabilities. However, appellant has failed to show prejudicial error a...
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*355 Opinion Appellants own property in the Santa Cruz Mountains on Summit Road. They privately own the portion of the road that crosses their property. Appellants sued to prevent respondents from using that portion of the road to conduct logging operations. Respondents filed suit the same day to prevent appellants from impeding their use of the disputed portion of the road. The two actions w...
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Alexei Chouchkov (“Chouchkov”) and his wife Natalia Kondratieva (“Kon-dratieva”) are Russian citizens. They petition for review of a final decision of the Board of Immigration Appeals (“BIA”) affirming the denial by an immigration judge (“IJ”) of their applications for asylum and withholding of deportation. . We have jurisdiction under 8 U.S.C. § 1105a. 2 Chouchkov claims that he s...
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219 F.3d 1018 (9th Cir. 2000) ESTATE OF MARIA TERESA MACIAS, by and through its successors in interest; CLAUDIA MACIAS; JUAN MACIAS; AVELINO MACIAS, JR., minors, by and through their Guardian, Sara Hernandez; SARA HERNANDEZ, individually, Plaintiffs-Appellants, v.MARK IHDE, Sheriff; PAUL DAY, Sergeant; CRAIG WISEMAN, Sergeant; DEFFENBAUGH, Deputy Sheriff, Defendants, and MARK LOPEZ, Deputy ...
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219 F.3d 1087 (9th Cir. 2000) IRINA GORBACH; JOSE LUIS ROSAS-MADRID; AGUEDA ESCALANTE; RUBEN LARA; JAVIER SANGUINO; MAC MAURICE CHUKWUD IJEAKU; LORETO MONCADO JUAN; PEDRO LEGARDA-LEGARDA; ADOLPHO ERAZO, Plaintiffs-Appellees,v.JANET RENO, Attorney General of the United States; DORIS M. MEISSNER, Commissioner of Immigration and Naturalization Service; UNITED STATES IMMIGRATION AND NATURALIZAT...
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This appeal requires us to examine California tort and products liability law as made specifically applicable to actions in federal court for claims of injury arising out of nuclear power plant incidents. Specifically, we must decide whether the district court erred in (1) refusing to give a jury instruction under Rutherford v. Owens-Illinois, Inc., 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203...
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ORDER The opinion filed October 27, 1999, heretofore published at 197 F.3d 1251 (1999) is amended as follows: After “hearing” at p. 1252, line 1, add the following footnote: Kibler’s remaining purported ineffective assistance claim was captioned in his petition as follows: “Should the petitioner have been granted an in camera evi-dentiary hearing on those claims of ineffective a...
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Petitioner Manraj Singh Sidhu is a .citizen of India seeking asylum in the United States. On February 22, 1996, an Immigration Judge (“IJ”) held á hearing on the merits of Petitioner’s application and denied his asylum claim on the basis of an adverse credibility determination. The Immigration Judge also denied Petitioner’s request for voluntary departure. On November 9, 1998, the Board of Immi...
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18 U.S.C. § 5033 prescribes the procedure to be followed when a juvenile is arrested by federal law enforcement officers. First, the arresting officers must immediately advise the juvenile of his rights; second, they must immediately advise the juvenile’s parents of the juvenile’s rights; and third, they must bring the juvenile before a magistrate “forthwith.” None of these procedures was followe...
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Stephen Paul Dunifer (“Dunifer”) appeals from the district court’s summary judgment granting injunctive and declaratory relief in favor of the United States in this action brought under § 301 of the Communications Act of 1934, 47 U.S.C. § 301, which prohibits the operation of a radio station without a Federal Communications Commission (“FCC”) license. 1 Dunifer contends that the district court ...
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Opinion Introduction Appellants appeal from the dismissal of their action after respondents’ demurrer was sustained on the ground that the one-year statute of limitations set forth in Code of Civil Procedure section 340, subdivision (3), had expired. Appellants argue that the statute of limitations was tolled by United States Code title 28, section 1367(d), while their claims were pending in ...
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98 Cal. Rptr. 2d 176 (2000) 82 Cal. App. 4th 399 Parichehr ASSILZADEH, Plaintiff and Appellant, v. CALIFORNIA FEDERAL BANK, FSB, et al., Defendants and Respondents. No. B133105. Court of Appeal, Second District, Division Five. July 19, 2000. *178 Ezer, Williamson, Fischbach & Brown, Mitchel J. Ezer, Los Angeles, and Joseph S. Fischbach, for Plaintiff and Appellant Parichehr Assilzadeh. Arter ...
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98 Cal. Rptr. 2d 144 (2000) 82 Cal. App. 4th 419 John ROSALES, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. No. B134358. Court of Appeal, Second District, Division Five. July 19, 2000. *146 Seeman and Freeman, Joseph H. Freeman and Larry J. Roberts for Plaintiff and Appellant. James K. Hahn, City Attorney, Cecil Marr, Senior Assistant City Attorney, Jess Gon...
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Donna Braunling (“Braunling”) appeals the district court’s order granting summary judgment in favor of Countrywide Home ' Loans, Inc. (“Countrywide”). Braunling had sued Countrywide asserting causes of action for disability discrimination under the Americans with Disabilities Act (“ADA”), and its California counterpart, the Fair Employment and Housing Act (“FEHA”), in addition to a cause of act...
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The Commissioner of Internal Revenue (“Commissioner”) appeals the Tax Court’s decision that he abused his discretion in requiring Jim Turin & Sons, Inc. (“taxpayer”), to use the accrual method of accounting to compute its federal taxes for the tax years at issue. In particular, the Commissioner contests the Tax Court’s finding that emulsified asphalt is not “merchandise,” as that term is used i...
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Larita-Martinez, a citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (Board) denial of his application for suspension of deportation. We have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1105a, as amended by section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (Reform Act), Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-625 ...
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Marciano Magallon-Jimenez (“Magal-lon”) appeals his conviction for possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1). Magallon contends that the district court erred in denying his motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure (“Rule 29”). He argues that the evidence (1) failed to show that he knew that the truck in w...
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Opinion Michael G. McCullah appeals from the order denying class certification of his employment discrimination action against the Southern California Gas Company (Gas Company). The trial court found there was no well-defined community of interest among the purported class members. (Code Civ. Proc., § 382.) We affirm. Facts Pursuant to a collective bargaining agreement with ...
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Opinion The trial court found Gregory Eugene Jones guilty of two counts of second degree robbery, five counts of attempted second degree robbery, and assault with a semiautomatic firearm. He was sentenced to an aggregate prison term of 18 years four months. On appeal, Jones contests the sufficiency of the evidence as well as two aspects of his prison sentence. We agree with appellant’s sentencing ...
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98 Cal.Rptr.2d 188 (2000) 82 Cal.App.4th 433 In re KELLY D. et al., Persons Coming Under the Juvenile Court Law. Siskiyou County Human Services Department, Plaintiff and Respondent, v. Darren D., Defendant and Appellant. No. C033867. Court of Appeal, Third District. July 20, 2000. Janet A. Hilde, Quincy, for Defendant and Appellant. Frank J. DeMarco, County Counsel, William P. Stanley, Assistant ...
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Opinion Plaintiff and appellant Cucamongans United for Reasonable Expansion (CURE) appeal from a judgment denying its petition for writ of administrative mandamus brought under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.). 1 CURE contends that the trial court erred because new information and changes in the law and scientific standard...
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Opinion In reviewing this defendant’s convictions for, inter alia, rape by intoxication and oral copulation by intoxication, we hold that those crimes are committed when the victim is so intoxicated that he or she is incapable of exercising the judgment required to decide whether to consent to those sexual acts, and that the jury should be instructed accordingly. Procedural Backgroun...
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Opinion Procedural Background Yvonne L. Streit sued Weldon Diggs, his professional corporation, Linda Wilde, and Deborah Walker (Diggs defendants), together with numerous fictitiously named defendants, for damages for legal malpractice. Framed in three counts, her complaint alleges that the defendants committed malpractice in defending her in two actions and in prosecuting a cross-complaint in ...
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Peter Cormier (“Cormier”) was convicted by a jury of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to ten years imprisonment, followed by three years of supervised release. Cormier appeals the district court’s denial of his motion to suppress a gun found during a search of his motel room. On appeal, he alleges that his consent was not voluntarily an...
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108 Cal.Rptr.2d 924 (2002) 90 Cal.App.4th 937 In re EDUARDO C, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Eduardo C, Defendant and Appellant. No. B142094. Court of Appeal, Second District, Division Four. July 19, 2001. Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. D...
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While on supervised release following convictions on three counts of bank fraud, appellant Drago Carl Musa (“Musa”) was convicted of misdemeanor witness intimidation in violation of California Penal Code § 136.1(b)(1). Based on that conviction, the United States Probation Office (“USPO”) sought to revoke Musa’s supervised release. At the outset of the revocation hearing, Musa made a request for s...
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108 Cal.Rptr.2d 914 (2002) 90 Cal.App.4th 944 The PEOPLE, Plaintiff and Respondent, v. Juan Ramon DUBON, Defendant and Appellant. No. B142170. Court of Appeal, Second District, Division Three. July 19, 2001. Review Denied October 24, 2001. *916 Carlos Vellanoweth, John Wolfgang Gehart and Elena Yampolsky, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorne...
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Karen Pinjuv appeals from the order of the district court revoking her supervised release and sentencing her to a term of imprisonment. The district court revoked Pinjuv’s supervised release after Pinjuv admittedly failed to comply with a condition of supervision requiring her “to participate in and successfully complete a mental health treatment program.” In this appeal, Pinjuv contends that the...
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220 F.3d 1113 (9th Cir. 2000) THE FREE SPEECH COALITION, on its own behalf and on behalf of its members; BOLD TYPE, INC.; JIM GINGERICH; RON RAFFAELLI, Plaintiffs-Appellants,v.JANET RENO, Attorney General, UNITED STATES DEPARTMENT OF JUSTICE, Defendants-Appellees. No. 97-16536 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Filed July 24, 2000 D...
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98 Cal.Rptr.2d 221 (2000) 23 Cal.4th 807 3 P.3d 868 CONNECTICUT INDEMNITY COMPANY et al., Petitioners, v. SUPERIOR COURT of San Joaquin County, Respondent; City of Lodi, Real Party in Interest. Maryland Casualty Company et al., Petitioners, v. Superior Court of San Joaquin County, Respondent; City of Lodi, Real Party in Interest. No. S065841. Supreme Court of California. July 24, 2000. *222 Arche...
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Luis Alarcon-Serrano (“Alarcon-Serra-no”) petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) order of exclusion. Alarcon-Serrano claims that the IJ and BIA lacked sufficient evidence to conclude that it was reasonable to believe Alarcon-Serrano knowingly participated in drug trafficking. The Immigration and Naturalization Service (“I...
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Appellant Quentin Hinton, aka Ronnie Baldwin (“Hinton”), appeals his conviction prosecuted from a three-count indictment. The jury returned a guilty verdict for the following three counts: (1) causing the delivery by mail of a revolver (18 U.S.C. § 1715 (1999)); (2) causing the delivery by mail of ammunition (18 U.S.C. § 1716(i)(2)); and (3) shipping and transporting a firearm in interstate com...
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98 Cal. Rptr. 2d 371 (2000) 82 Cal. App. 4th 580 Sam C. HORTON et al., Plaintiffs and Appellants, v. CITY OF OAKLAND et al., Defendants and Respondents. No. A085460. Court of Appeal, First District, Division Three. July 24, 2000. *372 American Civil Liberties Union Foundation of Northern California, Alan L. Schlosser, John M. Crew; Michael B. Anderson for Plaintiffs and Appellants. Larson & W...
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98 Cal. Rptr. 2d 388 (2000) 82 Cal. App. 4th 615 Patricia A. RAMOS et al., Plaintiffs and Respondents, v. COUNTRYWIDE HOME LOANS, INC., et al., Defendants and Appellants. No. D033669. Court of Appeal, Fourth District, Division One. July 25, 2000. Rehearing Denied August 11, 2000. *389 Heller, Ehrman, White & McAuliffe, Matthew L. Larrabee, Carol Lynn Thompson, Scott A. Westrich, San Francisco...
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Warnicke & Littler (the Firm) appeals the district court’s denial of $10,000 additional attorneys fees in its representation of the bankrupt debtor, Cedic Development Co. (Cedic). We hold that the basic rates charged by the firm did not take into account all relevant factors and that as adequate compensation the Firm was entitled to the $10,000. We reverse the judgment of the district court. ...
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222 F.3d 677 (9th Cir. 2000) NATIONAL PARKS & CONSERVATION ASSOCIATION; MALAMA PONO, INC., Petitioners,v.U. S. DEPARTMENT OF TRANSPORTATION; RODNEY SLATER, Secretary, in his official capacity as Secretary of Transportation; FEDERAL AVIATION ADMINISTRATION, JANE in her official capacity as Administrator of the Federal Aviation Administration and WILLIAM WITHCOMBE, in his official capacit...
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On January 26, 1999, defendant-appellant Juan Ceron-Sanchez entered a plea of guilty to one count of Reentry After Deportation in violation of subsections (a) and (b)(2) of 8 U.S.C. § 1326.2 On May 27, 1999, Ceron-Sanchez was sentenced to 60 months imprisonment followed by three years of supervised release. Ceron-Sanchez appeals, challenging the district court’s computation of his sentence. I. BAC...
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222 F.3d 643 (9th Cir. 2000) CHARLES WETZEL, Plaintiff-Appellant,v.LOU EHLERS CADILLAC GROUP LONG TERM DISABILITY INSURANCE PROGRAM; RELIANCE STANDARD LIFE INSURANCE COMPANY, Defendants-Appellees. No. 97-56437 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted March 5, 1999--Pasadena, CaliforniaFiled September 7, 1999Reh...
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Opinion In a case which can only be described as procedurally unusual, the appellant, Louise Gardens of Encino Homeowners’ Association, Inc., a California corporation (hereafter the Association) appeals from a judgment entered upon an order confirming an arbitration award, which confirmation had been requested by the Association. The respondent, Truck Insurance Exchange, Inc. (Truck)...
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*666Opinion Here we hold a violation of Vehicle Code section 2800.3, evasion of a peace officer causing death or serious bodily injury, cannot support a charge of felony murder.1 Changa Dia Jones appeals from a judgment after conviction of second degree murder (Pen. Code, §§ 187, 189), evading an officer causing death (§ 2800.3), and other offenses. Because the court misinstructed regarding the sp...
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98 Cal.Rptr.2d 398 (2000) 82 Cal.App.4th 631 BISHOP CREEK LODGE et al., Plaintiffs and Appellants, v. Ronald S. SCIRA et al., Defendants and Respondents. No. E025547. Court of Appeal, Fourth District, Division Two. July 25, 2000. Law Offices of Paul S. Rudder and Laura M. Hagan, Mammoth Lakes, for Plaintiffs and Appellants. Joseph Di Giulio, Marina Del Rey, for Defendants and Respondents Ronald a...
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We must determine whether the district court was correct in concluding as a matter of law that ordinances of the City of Los Angeles (the “City” or “Los Angeles”) prohibiting the operation of adult businesses that both sell adult products and contain facilities for the viewing of adult movies or videos were inadequately supported by evidence of adverse impact so as to violate the First Amendment....
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Marc D. Andra appeals his sentence after a guilty plea to conspiracy to defraud the United States and corrupt intimidation of and interference with IRS agents. Because the tax loss calculation improperly included some penalties and interest, we *1107 remand for re-sentencing. Otherwise we affirm. Andra argues that the district court erred in calculating the tax loss for Andra’...
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This case presents issues of first impression in this circuit under the Hyde Amendment, which allows a court to award litigation expenses to a prevailing criminal defendant where the government’s position was vexatious, frivolous, or in bad faith, see 18 U.S.C. § 3006A (historical and statutory notes). We hold that in order to recover .expenses, a defendant must show more than that the governme...
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I respectfully dissent. This case presents the question whether the Fourth Amendment mandates the suppression of evidence obtained when law enforcement officers, in responding to a late-night complaint of unduly loud noise at a residence and attempting to ascertain the location from which the noise emanated, entered a shallow, unenclosed side yard adjacent to the residence and observed— through a ...
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Opinion Conviction of kidnapping and carjacking generally requires proof that the perpetrator committed the criminal acts against the will of the victim, i.e., without the victim’s consent. This requirement presents special problems when the victim is an infant too young to give or withhold consent. In People v. Oliver (1961) 55 Cal.2d 761, 768 [12 Cal.Rptr. 865, 361 P.2d 593] (Oliver), we found t...
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Opinion Liderato C. Beltran appeals from the judgment entered after a jury convicted him of felony evasion of a pursuing peace officer (Veh. Code, § 2800.3) and vehicular manslaughter. (Pen. Code, § 192, subd. (c)(1).) For the reasons set forth below, we reverse the judgment to the extent it imposed great bodily injury enhancements (Pen. Code, § 12022.7) and limited Beltran’s presentence custody ...
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219 F.3d 1117 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.DANIEL RAY BENNETT, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.EDWARD STANLEY, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.VICTOR MANUEL MURILLO, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MONICA RENEE GANT, Defendant-Appellant.UNITED STATES OF AME...
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222 F.3d 688 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOHN TIMBANA, Defendant-Appellant. No. 97-30001 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted March 22, 2000--San Francisco, CaliforniaFiled July 28, 2000 Greg S. Silvey, Boise, Idaho, for the defendant-appellant. Joanne P. Rodrig...
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The United States indicted Christopher Lee Webb, a Native American, on two counts of sexual contact with a minor in violation of 18 U.S.C. § 2244, for conduct occurring on allotted land within the boundaries of the Nez Perce Reservation in Idaho. The government asserted federal jurisdiction under 18 U.S.C. § 1153(a), which covers certain offenses committed by Indians within “Indian country.” We...
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Opinion Petitioners, the Los Angeles County Department of Mental Health and its director, Marvin J. Southard, seek a writ of mandate directing the superior court to set aside its order granting real party in interest’s motion to join petitioners as parties in a dependency case. I. Factual and Procedural Background Referee Marilyn Mackel was assigned to hear a dependency matter involving rea...
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98 Cal.Rptr.2d 400 (2000) 82 Cal.App.4th 699 The PEOPLE ex rel. Bill LOCYER, as Attorney General, etc., Plaintiff and Appellant, v. PACIFIC GAMING TECHNOLOGIES, Defendant and Respondent. No. B134202. Court of Appeal, Second District, Division One. July 27, 2000. Review Denied November 1, 2000. *401 Bill Lockyer, Attorney General, Richard Frank, Chief Assistant Attorney General, Sara J. Drake, Act...
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Opinion We granted an alternative writ to review a sanction order of $150 issued against counsel for failing to “properly” serve notice of a status conference hearing on a named but not yet appearing defendant. We conclude that the trial court abused its discretion in imposing the sanctions and we grant a writ of mandate. Statement of Facts Petitioner is attorney Jeffrey K. Winikow, counsel of re...
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220 F.3d 1126 (9th Cir. 2000) DAVID PACHECO, individually and as guardian ad litem for Trevor J. Pacheco, a minor, Plaintiff-Appellant,v.UNITED STATES OF AMERICA, PAUL KALETH, and PARKS MANAGEMENT COMPANY, Defendants-Appellees. No. 99-15421 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted May 3, 2000--San Francisco, Ca...
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This appeal presents the question of whether a district judge may issue an order approving a wiretap on the application of an Assistant United States Attorney before the Attorney General or her designate has authorized the application. We hold that such an order violates the federal wiretap statute and affirm the judgment of the district court suppressing evidence obtained by the improperly-aut...
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ORDER The opinion filed December 7, 1999 and reported at 198 F.3d 745 is withdrawn. The attached opinion is filed simultaneously with this order. With these changes, the panel has unanimously voted to deny the petition for rehearing and to deny the petition for rehearing en banc. The full court has been *1160 advised of the petition for rehearing en banc and no active judge has requested a ...
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OPINION OVERVIEW The law firm of Roberts, Sheridan & Kotel, P.C. (RSK), special counsel for the Debtors, appeals the bankruptcy court’s order entered on October 1, 1999 denying RSK full compensation of its requested fees. We AFFIRM. *105 STATEMENT OF FACTS 1. RSK’s employment RSK submitted its application to be retained as special counsel for the Debtors on July 31, 1997. Prior to approval,...
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A federal law, the National Firearms Act, prohibits the possession of an unregistered “machinegun.” (26 U.S.C. *889§ 5845(a)(6).) California’s Assault Weapons Control Act prohibits possession of an unregistered “assault weapon.” (Pen. Code, § 12280.) Both laws carry a potential prison sentence. Both laws are silent on the mental state required for a violation. In Staples v. United States (1994) 51...
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Opinion Under Penal Code section 1157,1 “[w]henever a defendant is convicted of a crime . . . which is distinguished into degrees,” the trier of fact “must find the degree of the crime ... of which he is guilty. Upon the failure of the [trier of fact] to so determine, the degree of the crime ... of which the defendant is guilty, shall be deemed to be of the lesser degree.” Here, we consider this ...
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Opinion The issue in this case is whether a trial court may order counsel to pay both sanctions and his client’s share of a discovery referee’s fees under Code of Civil Procedure section 128. 1 We conclude that it cannot. Factual and Procedural Summary Petitioner Joseph Andrews represented Irena Wegricht in her action for breach of an insurance contract and of the implied covenant of good...
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98 Cal.Rptr.2d 527 (2000) 82 Cal.App.4th 813 The PEOPLE, Plaintiff and Respondent, v. Kenneth Lavelle HALL, Defendant and Appellant. No. B134828. Court of Appeal, Second District, Division Four. July 28, 2000. Review Denied November 15, 2000. *528 Sandra Uribe, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant...
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*762 Opinion Introduction This case involves a gang-related drive-by murder. A jury convicted appellants Alikhban Perez and Josué Aguilar of first degree murder and the special circumstance that the murder was committed by discharging a firearm from a motor vehicle intentionally at another person outside the vehicle with intent to kill. (Pen. Code, §§ 189, 190.2, subd. (a)(21).) The jury al...
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Opinion To the chorus of cases decreeing that a lawyer sued by a former client for professional negligence cannot seek indemnity from the lawyer subsequently retained by the client on the same matter, we add a variation on a familiar refrain: When a lawyer whose fees were paid by his client’s insurer is sued by the insurer for malpractice, the lawyer may not seek indemnity from the lawyers retain...
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This case involves two long-time residents found guilty of first time simple possession, and attempted simple possession, of narcotics, respectively. The INS seeks to remove them from the country, even though in both cases state courts have held that the petitioners are no longer “convicted” under state law, because both petitioners have received the benefit of state rehabilitative statutes. We...
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Eliodoro Valensia appeals from the sentence imposed by the district court following his plea of guilty to conspiracy to distribute methamphetamine and to conspiracy to possess methamphetamine with the intent to distribute in violation of 21 U.S.C. §§ 841(a) and 846. The district court imposed a two-level enhancement pursuant to § 3Bl.l(c) of the United States Sentencing Guidelines (“U.S.S.G.”) ...
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*787 Opinion —On the basis of evidence that he possessed a rifle and a shotgun after having been convicted of a felony, defendant was charged with violating Penal Code section 12021, which makes it a felony for any such person to possess any firearm. 1 The trial court dismissed the charge under section 995 on the ground that defendant could lawfully possess nonconceala...
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*823 Opinion Petitioner, the County of Los Angeles (County), seeks extraordinary writ relief to compel the trial court to vacate its order granting real party in interest Adam Axelrad’s motion, brought pursuant to the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.), 1 to compel the production of certain public records in the possession of the Los Angel...
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98 Cal. Rptr. 2d 488 (2000) 82 Cal. App. 4th 798 The PEOPLE, Plaintiff and Respondent, v. Danny Richard BOHANNON et al., Defendants and Appellants. No. B115308. Court of Appeal, Second District, Division Two. July 31, 2000. Review Denied November 21, 2000. *489 Randy Short, Torrance, for Defendant and Appellant Danny Richard Bohannon. Tony L. Cogliandro, Torrance, for Defendant and Appellant Stev...
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Eric Coufal and his law firm, Coufal Abogados, (collectively “Coufal”), appeal the district court’s grant of summary judgment in favor of appellees AT & T Corp. (“AT & T”) and Lucent Technologies, Inc. (“Lucent”) on Coufal’s claim of tortious interference with a contract. The district court held that the law of Jalisco, Mexico applied; that Mexican law did not recognize the tort of interference...
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Petitioner Ashok Chand seeks review of the BIA’s decision denying his claim for asylum and withholding of deportation. We grant Chand’s petition for review and hold that he is eligible for asylum. 2 I. Chand is a Hindu Indian from Fiji who worked as a foreman in a shop of cabinet makers; he was not politically active. He lived in a small village on the island of Latouka. Two-t...
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223 F.3d 937 (9th Cir. 2000) JUANITA NEWMAN, on behalf of herself and all others similarly situated, Plaintiff-Appellant,v.KENNETH APFEL, Commissioner of the Social Security Administration, Defendant-Appellee. No. 98-56397 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 5, 2000--Pasadena, CaliforniaFiled August ...
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Defendant Pablo Rivera-Sanchez (“Rivera-Sanchez”) appeals from the judgment of conviction entered following his plea of *1059 guilty to the crime of entering the United States, after being deported, without the express consent of the Attorney General. The single-count indictment and the judgment both allege that Rivera-Sanchez violated 8 U.S.C. §§ 1326(a) and 1326(b)(2). Rivera-Sanchez contends...
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Conrado Sesma-Hernandez appeals the district court’s finding that he violated the conditions of his supervised release. We affirm. After serving a term of imprisonment, Sesma was released and began serving a three-year term of supervised release on October 8, 1998. In July of 1999, a petition was filed asking that his supervised release be revoked due to a number of violations. The petition assert...
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Opinion by Judge BEEZER; Dissent by Judge D.W. NELSON. Jose Jorge Zamora-Hernandez appeals his jury conviction and sentence for transporting illegal aliens, in violation of 8 U.S.C. § 1324(a)(l)(A)(ii). He contends *1047that the district court erred in denying his motion to continue his retrial so that he could obtain a transcript of his first trial. We have jurisdiction pursuant to 28 U.S.C. § 12...
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ORDER The order filed June 28, 2000 is amended as follows: In light of the opinion of the United States Supreme Court in Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000), it is ORDERED that this case be remanded to the district court for an evidentiary hearing on Petitioner’s plea-related and appeal-related ineffectiveness of counsel claims. With this amendment, the ...
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98 Cal. Rptr. 2d 576 (2000) 82 Cal. App. 4th 883 Ruben MARTINEZ et al. Plaintiffs and Appellants, v. BANK OF AMERICA NATIONAL TRUST & SAVINGS ASSOCIATION, Defendant and Respondent. No. B116311. Court of Appeal, Second District, Division Three. August 1, 2000. *579 Guzin & Steier and Lawrence N. Guzin, Los Angeles, for Plaintiffs and Appellants. Haight, Brown & Bonesteel, Kevin R. Cris...
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Opinion In this dispute between two factions in a church, we must tread lightly, both because the First Amendment demands it and because it is clear from the record that the opposing views are sincerely held. The church at issue here is located in Ben Lomond, California. Many of its members were among a group of persons who sought to worship as a true “New Testament” church—that is, in th...
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224 F.3d 916 (9th Cir. 2000) RAFAEL ALFARO-REYES, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.ALFREDO DUENAS-LOPEZ, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.JULIAN SOLORZANO-SALAS, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.SHERVIN MOINI, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Nos. 97-70443, 97-70511,...
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Minh Due Luu-Le (“Luu-Le”) petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming an Immigration Judge’s (“IJ”) determination that he is deportable for a conviction “relating to a controlled substance” and ineligible for discretionary relief from deportation pursuant to Immigration and Nationality Act (“INA”) section 212(c). Luu-Le argues that his misdemeanor convi...
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The United States appeals from an order which suppressed evidence seized from the home of Mark James Knights in a warrantless search conducted by members of the Sheriffs Department of Napa County, California. It claims that the evidence was properly seized during a probation search. The district court disagreed; so do we. We affirm. *1140 BACKGROUND From 1996 on, Pacific Gas ...
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98 Cal. Rptr. 2d 671 (2000) 23 Cal. 4th 942 4 P.3d 928 Jonathan Vos POST, Plaintiff and Respondent, v. PALO/HAKLAR & ASSOCIATES et al., Defendants and Appellants. No. S081910. Supreme Court of California. August 3, 2000. *672 Law Offices of Robert R. Ronne, Robert R. Ronne, El Segundo; and Dennis W. Rihn, Los Angeles, for Defendants and Appellants. Lloyd C. Ownbey, Jr., for Plaintiff and Resp...
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Opinion Robert John Downey, Jr., appeals from the judgment entered following revocation of probation previously granted upon his plea of no contest to possession of cocaine, misdemeanor driving under the influence of alcohol and/or drugs, misdemeanor possession of a concealed firearm in a vehicle, and misdemeanor being under the influence of a controlled substance. (Health & Saf.'Code, § ...
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Fredy Paul Albillo-Figueroa (“Albillo”), a native and citizen of Guatemala, petitions for review of the denial of his application for relief from deportation under section 212(e) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(c) (1996) by the Board of Immigration Appeals (“BIA”). His petition presents this court with a question of first impression: whether a conviction for poss...
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In these consolidated appeals, we are asked to determine the constitutionality of provisions of the Prison Litigation Reform Act of 1995 (“PLRA”), Pub.L. 104-134, 110 Stat. 1321-66 (Apr. 26, 1996), that require termination of prospective relief in prison conditions cases. This is not the first occasion we have had to address the constitutionality of these provisions, 2 nor are we the...
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Douglas James is a state prisoner serving three consecutive life sentences for kidnaping and robbery. The district court dismissed James’ petition for federal habe-as review because it contained both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). Although the court dismissed his petition without prejudice, James may be precluded fr...
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In 1983, Irene Moreno won a medical malpractice judgment against Dr. Basil Spirtos. See Moreno v. Beverly Hosp., No. C242972 (L.A.Super.Ct. Apr. 18, 1983). Four years later, Basil declared bankruptcy. Moreno filed three proofs of claim based on the judgment in Basil’s bankruptcy estate. Basil was granted a discharge in April 1996, one month before his death. Following the discharge, the trust...
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220 F.3d 1134 (9th Cir. 2000) KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees,v.ANCHORAGE EQUAL RIGHTS COMMISSION and the MUNICIPALITY OF ANCHORAGE, Defendants-Appellants,v.PAULA HALEY in her official capacity as the Executive Director of the Alaska State Commission for Human Rights, Defendant.KEVIN THOMAS and JOYCE BAKER, Plaintiffs-Appellees,v.ANCHORAGE EQUAL RIGHTS COMMISSION and the ...
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Opinion Patrick Chungliang Hsu appeals his conviction by plea of nolo contendere of two counts of attempting to distribute or exhibit lewd matter to a minor by the Internet (Pen. Code, 1 §§ 288.2, subd. (b), 664). He contends his conviction must be reversed because section 288.2, subdivision (b) violates the commerce clause (U.S. Const., art. I, § 8, cl. 3) and the First Amendm...
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98 Cal. Rptr. 2d 655 (2000) 82 Cal. App. 4th 1032 In re MARIA S., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Lillian S., Defendant and Appellant. No. B135717. Court of Appeal, Second District, Division Four. August 4, 2000. *656 Andrea R. St. Julian, San Diego, under appointment by the Court of Appeal, ...
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We must decide whether two criminal counts of conspiracy, one relating to the distribution of illegal drugs and the other to the possession and sale of stolen firearms, may be grouped together for purposes of reducing the relevant offense level under the United States Sentencing Guidelines. I In February 1997, the owner of a gun store in East Wenatchee, Washington, was murdered and over one h...
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This case concerns the cause and aftermath of a 1995 crude oil pipeline spill in Norwalk, California. The spill, which discharged over 45,000 gallons of crude oil, occurred on February 20, 1995 during the construction of the Norwalk-Santa Fe Me-trolink railway station. At least 50 gallons of oil escaped through a nearby storm drain and contaminated a local creek and river. The total cost of cleanu...
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98 Cal. Rptr. 2d 661 (2000) 82 Cal. App. 4th 1018 GLUE-FOLD, INC., Plaintiff and Appellant, v. SLAUTTERBACK CORPORATION et al., Defendants and Respondents. No. A088453. Court of Appeal, First District, Division Four. August 4, 2000. *662 Law Offices of Bruce A. Lieberman, Bruce A. Lieberman, Oakland, for Appellant. Brobeck, Phleger & Harrison, James J. Elacqua, Jeannine Y. Sano, Palo Alto, fo...
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Opinion This case presents the issue of whether a liability insurer providing coverage for “advertising injury” was required to defend and *1000 indemnify an insured for infringement of “trade dress” that allegedly arose through the insured’s solicitation of a single customer through a competitive bidding process with a product specifically designed for that customer. When th...
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Opinion Defendant, adjudged a mentally disordered offender (an MDO) required to undergo mental health treatment as a condition of parole, contends that (1) she should not have been forced to testify about her mental state and behavior when committing the underlying offense on which her parole was based, and (2) the evidence was insufficient to support findings that (a) she used force or violence i...
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OPINION The Association of Western Pulp and Paper Workers, Local 78 (the “Union”) appeals the dismissal of its petition to vacate an arbitration award under the Labor Management Relations Act, 29 U.S.C. § 185(a). The Union alleges that the arbitrator’s award resolving the Union’s dispute with Rexam Graphics, Inc. (“Rex-am”), regarding the discharge of an employee, exceeded the scope of th...
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Per Curiam Opinion; Concurrence by Judge Noonan OPINION1 This is an appeal from summary judgment. We affirm in part and reverse in part. Choi sued defendants for various violations of his constitutional and statutory rights arising from defendants’ actions in detaining and arresting him during their search for a suspect in the shooting of an officer of the California Highway Patrol (CHP). Violatio...
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224 F.3d 1117 (9th Cir. 2000) FIRST PACIFIC BANCORP, INC., ADA P. SANDS, MICHAEL ZUGSMITH, and LEONARD S. SANDS, Plaintiffs-Appellants,v.RICKI HELFER, Chairman, Federal Deposit Insurance Corp., FEDERAL DEPOSIT INSURANCE CORPORATION as Receiver for FIRST PACIFIC BANK, and FEDERAL DEPOSIT INSURANCE CORPORATION in its Corporate capacity, Defendants-Appellees.FIRST PACIFIC BANCORP, INC., Plainti...
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Since Angela Kadjevieh died 20 years ago, her sons Nicholas and Robert have been embroiled in seemingly perpetual litigation. Initially, the brothers quarreled over the disposition of Angela’s estate. That dispute spawned others. An early casualty of this prodigious litigation was Robert’s solvency; since 1987, he has been in bankruptcy. In the decision that we are asked to review today, t...
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221 F.3d 1101 (9th Cir. 2000) In re: JOHN DOUGLAS SMITH, Debtor.JOHN DOUGLAS SMITH, Appellant,v.PETER KENNEDY; ARMAND BOUZAGLOU; KIRIT GALA; CARY PRESENT; JOHN SEVILLA; CHARLES WISEMAN; PETER ANDERSON, Peter Anderson, Trustee, Appellees. No. 98-56795 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 3, 2000Filed August 8, 2000 Richard M. Moneymaker, ...
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OPINION This case stems from a bonus-characterized by the taxpayer itself as “unusually high”-paid to the president of a closely held, single-shareholder corporation. The taxpayer, LabelGraphics, Inc., (“Label-Graphics”) appeals the Tax Court’s decision that only $406,000 of the $878,913 paid to its president, Lon D. Martin (“Martin”), in fiscal year 1990, was reasonable compensation and ...
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Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY. ORDER The opinion filed March 6, 2000 and reported at 205 F.3d 1138 is withdrawn. An opinion is filed simultaneously with this order. With these changes, Judge Canby votes to grant the petition for rehearing and recommends granting the petition for rehearing en banc. Judge Brunetti and Judge O’Scannlain vote to deny the petition for rehearing ...
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220 F.3d 1022 (9th Cir. 2000) JOE LEONARD LAMBRIGHT, Petitioner-Appellant,v.TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee.ROBERT DOUGLAS SMITH, Petitioner-Appellant,v.TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. Nos. 96-99020, 96-99025, 96-99026 Office of the Circuit Executive U.S. Court of Appeals for t...
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Shashona R. Carter (“Carter”) pled guilty to one count of conspiracy to counterfeit fraudulent securities, in violation of 18 U.S.C. §§ 371, 513(a), and 514(a)(2). At sentencing, the district court enhanced Carter’s base offense level by three levels pursuant to U.S.S.G. § 3B1.1 for playing a managerial or supervisory role in the offense, and by an additional twelve levels pursuant to U.S.S.G. § ...
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Opinion This case involves a delayed action for delinquent child support, brought 28 years after the initial child support order was made and 10 years after the child reached the age of majority. The trial court granted child support arrearages plus interest. We affirm. *1146I. Facts and Procedural History John and Kay1 married on April 21, 1967. They had one son, John Edward Dancy, Jr. (John Jr....
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Opinion The issue presented in this appeal is whether defendant Pacific Gas & Electric Co. (PG&E) has been underpaying 70 California cities for electric franchises, in violation of Public Utilities Code section 6231, subdivision (c). 1 The superior court found that in 70 cities of the 72-member class, PG&E had a “constitutional franchise” for lighting, which entitled it to pay ...
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220 F.3d 1042 (9th Cir. 2000) ERNEST S. BINS, Plaintiff-Appellant,v.EXXON COMPANY U.S.A., a division of Exxon Corp., Defendant-Appellee. No. 98-55662 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted En Banc March 20, 2000--San Francisco, CaliforniaFiled August 10, 2000 [Copyrighted Material Omitted][Copyrighted Ma...
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Rudie William Pletz (the “Debtor”) appeals the district court’s order sustaining the bankruptcy court’s and Internal Revenue Service’s (IRS) objections to the Debt- or’s Chapter 13 reorganization plan. The Debtor contends that the bankruptcy court and the district court incorrectly determined the value of his interest in the property he owned with his wife (the “Property”) as tenants by the ent...
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James Hatton (“Hatton”) failed to file a federal income tax return in 1983, and the Internal Revenue Service (“IRS”) instead prepared a substitute return on his behalf. Hatton then entered into an installment agreement with the IRS, agreeing to tender $200 per month in order to fulfill his outstanding tax liabilities. Before Hatton completed all the payments in the installment agreement, he filed...
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concurring in part and dissenting in part: I concur in all of Judge O’Scannlain’s opinion except section IV.B.l remanding for the trial judge to clarify his ruling regarding the value of Judy’s interest in the medical practice. The bankruptcy court held that Judy gave no value by relinquishing her interest in the medical practice. We may affirm on any ground supported by the record. See Papike v. ...
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Because the record before us does not reflect that the Parole Commission or any Commissioner considered Marquez-Perez’s request for reconsideration of his parole date, we vacate the district court’s judgment, and remand for further proceedings. Some of the important facts on which the Commission based its decision to establish Marquez-Perez’s parole date in the first instance have been eliminat...
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99 Cal.Rptr.2d 1 (2000) 23 Cal.4th 978 5 P.3d 68 The PEOPLE, Plaintiff and Respondent, v. Randy Steven KRAFT, Defendant and Appellant. No. S013187. Supreme Court of California. August 10, 2000. Rehearing Denied October 18, 2000. *15 Richard Power, Berkeley, and Elizabeth Barranco, El Cajon, under appointments by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, A...
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98 Cal. Rptr. 2d 836 (2000) 82 Cal. App. 4th 1189 Sarah GROOM, Plaintiff and Respondent, v. HEALTH NET et al., Defendants and Appellants. No. B131271. Court of Appeal, Second District, Division Four. August 9, 2000. Review Denied October 25, 2000. *837 O'Flaherty, Cross, Martinez, Ovando & Hatton, Michael M. Martinez, Glendale, and Robert M. Dato; Greines, Martin, Stein & Richland, Robert...
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Opinion Appellant has taken the law into his own hands. He has absconded with his daughter, a minor and dependent child, who was placed in a foster home pursuant to an order of the juvenile court. We conclude that appellant may not obtain review of the juvenile court’s order and at the same time be in contempt of the very order from which he appeals'. We therefore will dismiss the appeal. Summary...
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*1246Opinion Introduction Defendant Maria L. appeals from orders of the juvenile court (1) discontinuing her visitation with the children, (2) denying a continuance of the hearing regarding termination of parental rights, (3) denying her counsel’s request to be relieved, and (4) terminating her parental rights to her children, Melvin and Xena A. (Welf. & Inst. Code, § 366.26.)1 Appellant contends...
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Opinion Civil Code section 2860, subdivision (c) provides in part that in cases of conflict of interest requiring an insurer to provide independent counsel to defend an insured, “The insurer’s obligation to pay fees to the independent counsel selected by the insured is limited to the rates which are actually paid by the insurer to attorneys retained by it in the ordinary course of busines...
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Ralph Pena-Gutierrez (“Pena-Gutierrez”) seeks reversal of his jury conviction for bringing an illegal alien into the United States, see 8 U.S.C. § 1324(á)(2)(B)(ii), (iii), and transporting illegal aliens within the United States, see id. § 1324(a)(l)(A)(ii). We reject Pena-Gutierrez’s argument that the government violated his rights under the Compulsory Process Clause of the Sixth Amendment ...
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Opinion by Judge SHEA; Dissent by Judge RYMER. OVERVIEW William T. Neary, the United States Trustee for Region 16 (“Trustee”), appeals the Ninth Circuit Bankruptcy Appellate Panel’s (“BAP’s”) order reversing the bankruptcy court’s dismissal of Danny Padilla’s (“Padilla’s”) Chapter 7 bankruptcy petition. In the bankruptcy court, the Trustee had filed a motion to dismiss Padilla’s petition for bad ...
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Joe Davis Twilley appeals from his conviction for possession with intent to distribute cocaine. We reverse, because his motion to suppress evidence should have been granted. FACTS On March 5, 1998, Officer Kenneth Weeks of the Barstow, California police department was assigned to a California Highway Patrol Narcotics Task Force on Interstate 15 near Barstow and the Nevada border. Officer Week...
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ORDER CERTIFYING A QUESTION TO THE SUPREME COURT OF OREGON ' Kevin Matthews appeals from the grant of summary judgment in favor of several named defendants and the Oregon State Board of Higher Education (the “Board”), acting by and through, the University of Oregon (the “University”) (collectively, the “defendants”). Matthews contends that the University did not follow proper procedures in its den...
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99 Cal. Rptr. 2d 130 (2000) 23 Cal. 4th 1080 5 P.3d 186 In re Eben GOSSAGE, on Admission. No. S068704. Supreme Court of California. August 14, 2000. *132 Law Offices of Ephraim Margolin, Ephraim Margolin and Bradford L. Battson, San Francisco, for Petitioner Eben Gossage. Marie M. Moffat, Richard J. Zanassi, Jill A. Sperber, San Francisco, Andrea T. Wachter and Bruce H. Robinson for Respondent St...
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Opinion This is the fifth, and probably not the last, in a series of recent decisions by this court that involve Penal Code section 186.22, a *1109provision of the California Street Terrorism Enforcement and Prevention Act of 1988, also known as the STEP Act.1 Three of these cases, People v. Gardeley (1996) 14 Cal.4th 605 [59 Cal.Rptr.2d 356, 927 P.2d 713], People v. Loeun (1997) 17 Cal.4th 1 [69 ...
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Opinion Defendant Sylvia B. Saad, M.D., appeals from the trial court’s granting of plaintiffs’ motion for new trial following a jury verdict in favor of defendant in an action alleging medical malpractice. For the reasons which follow, we affirm. Procedural Background By complaint filed April 16, 1997, plaintiffs Martie L. Maher and Sheldon Raymond Russell sought to recover damages from def...
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98 Cal. Rptr. 2d 852 (2000) 82 Cal. App. 4th 1263 The PEOPLE, Plaintiff and Respondent, v. Cheryl COVINGTON, Defendant and Appellant. No. F032872. Court of Appeal, Fifth District. August 11, 2000. *853 Gregory H. Mitts, Bakersfield, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan...
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Appellant Charles M. McCarthy, Jr. (“McCarthy”) appeals from the district court’s decision on summary judgment (1) upholding the Commissioner of Social Security’s determination that McCarthy was overpaid $10,207.00 in disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and (2) remanding the case to the Commissioner pursuant to 42 U.S.C. § 405(...
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Yarsha Tushar Shah and her two children, Kunal and Forum, natives of India, petition for review of the Board of Immigration Appeals’ (BIA) decision dismissing their appeal from the denial of their applications for asylum and withholding of deportation. Both the BIA and the Immigration Judge (IJ) based their denial of the Shahs’ application on an adverse credibility finding. We have jurisdiction...
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OPINION This appeal presents the puzzle of how the income of a non-debtor spouse in a community property state is to be considered on confirmation of the debtor’s chapter 13 1 plan. We conclude that, on the record before us, and under Washington community property law, the debtor’s interest in that income was improperly excluded. We reverse and remand. I. FACTS Appellant Lenard E. Moen is...
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Opinion On May 28, 1997, a jury returned a verdict finding appellant James Edward King guilty of murder with special circumstances, first degree burglary, sodomy and attempted rape. The jury did not, however, find that appellant’s crimes warranted the death penalty. The trial court accordingly sentenced appellant to life in prison without the possibility of parole consecutive to a determinate t...
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99 Cal. Rptr. 2d 230 (2000) 82 Cal. App. 4th 1380 The PEOPLE, Plaintiff and Respondent, v. John Peter ARCHER, Defendant and Appellant. In re John Peter Archer, on Habeas Corpus. Nos. B130704, B135991. Court of Appeal, Second District, Division Four. August 14, 2000. Review Denied November 29, 2000. *231 Mark D. Lenenberg, under appointment by the Court of Appeal, Chatsworth, for Defendant and App...
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Opinion Appelant Steven Gregory Dunmore challenges an order by the trial court setting child support arrears for his daughter Eileen. In an *3unrelated action, Eileen’s stepfather initiated a stepparent adoption of Eileen. The preadoption proceedings included a court finding that the adoption could proceed without appellant’s consent. On appeal, Steven argues this finding terminated his child supp...
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Opinion In this appeal we address the impact of the preference requirements of the Indian Child Welfare Act (ICWA)1 on the exercise of discretion by state or local agencies when placing Indian children in adoptive homes. The mother and the minor are members of the North Fork Ranchería of Mono Indians of California (the Tribe). The Tribe appeals from the ruling of the juvenile court finding good c...
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98 Cal. Rptr. 2d 869 (2000) 82 Cal. App. 4th 1329 The PEOPLE, Plaintiff and Respondent, v. Luis Alonso MOLINA, Defendant and Appellant. No. C032811. Court of Appeal, Third District. August 14, 2000. Review Denied November 29, 2000. *870 David L. Saine, Bakersfield, under appointment by the Court of Appeal, for Defendant and Appellant Luis Alonso Molina. Bill Lockyer, Attorney General, David P. Dr...
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*1400Opinion Renee R. appeals from a dispositional order that denied her reunification services because of a long history of drug abuse and resistance to prior treatment.1 She argues that the juvenile court misread the specific requirements of the statute that authorizes the denial of services for drug-related reasons, which, properly construed, does not apply to her. Minor’s counsel supports Ren...
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*1355Opinion Cam Thach Thi Le, Alexander Sinclair, and David E. Page appealed their convictions for multiple counts of grand theft and insurance fraud, contending the prosecution did not adequately plead and prove the statute of limitations had not run.1 We reversed with directions. The Supreme Court granted review and eventually transferred the matter back to this court with directions to vacate ...
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Opinion AnthonyJohn Sturiale, appellant, contends: (1) the trial court erred when it concluded it could not “overrule” the prosecution’s determination he was ineligible for the deferred entry of judgment process (Pen. Code, 1 §§ 1000-1000.4); (2) People v. Harvey (1979) 25 Cal.3d 754 [159 Cal.Rptr. 696, 602 P.2d 396] (Harvey) precludes the use o...
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222 F.3d 552 (9th Cir. 2000) FRIENDS OF THE CLEARWATER; IDAHO SPORTING CONGRESS, INC.; THE NORTHERN ROCKIES PRESERVATION PROJECT; and THE ECOLOGY CENTER, Plaintiffs-Appellants,GARY MACFARLANE; RON MITCHELL; DAN FUNSCH; and NATALIE SHAPIRO, Plaintiffs,v.MICHAEL DOMBECK, in his official capacity as Chief of the United States Forest Service; and UNITED STATES FOREST SERVICE, an agency of the Un...
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Petitioner Mitchell Alfred Patterson appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Petitioner asserts that an instruction requiring the jury to presume him sane at the guilt phase of his murder trial violated the Due Process Clause of the Fourteenth Amendment. We hold in the circumstances of this case that the instruction was constitutional error, and that...
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The question in this case is whether the district court must hold a separate hearing before trial, as opposed to making an evi-dentiary determination during trial, in order to fulfill the “gatekeeping” function outlined in the Supreme Court’s trilogy of cases addressing the admissibility of expert testimony: Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d...
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Steven George Nelson (“Nelson”) pleaded guilty to one count of possession of marijuana with intent to manufacture. At sentencing, the district court enhanced Nelson’s sentence under U.S.S.G. § 2Dl.l(b)(l), for possession of a dangerous weapon and, after so doing, concluded that U.S.S.G. § 5C1.2 — the so-called “safety valve” provision — was inapplicable because it was not “clearly improbable” tha...
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Jose Luis Nunez appeals from his sentence, imposed after a guilty plea to one count of possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over his timely appeal pursuant to 18 U.S.C. § 3742. Because Nunez waived his right to appeal his sentence, we dismiss. I In...
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Opinion In this case we hold that CALJIC No. 2.50.01, as it read prior to its 1999 revision, adequately conveys the People’s burden of proof when it is used with CALJIC Nos. 2.00, 2.01 and 2.50.1. We reject defendant Ralph L. Jeffries’s contention that CALJIC No. 2.50.01 allowed the jury to find him guilty without proof beyond a reasonable doubt. However, we accept defendant’s contention that the...
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Opinion Introduction After defendants were indicted by grand jury on two counts of conspiracy against trade in violation of the Cartwright Act (Bus. & Prof. Code, § 16755) and other offenses, the trial court granted their motions to suppress evidence under Penal Code section 1538.5 (further section references are to the Penal Code unless specified otherwise). Defendants successfully argued such e...
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Opinion Manuel Henry Reyes pleaded guilty to possession of methamphetamine after the superior court denied his motion to suppress. Reyes contends the use of a ruse by the police led to an unlawful detention and any consent to a warrantless search of his person was a product of that illegality. We agree and reverse. I On the afternoon of October 12, 1998, five narcotics officers ...
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Opinion Appelant Ron Paul Bracken was charged with a violation of Vehicle Code section 23152, subdivision (a) (driving under the influence) with an allegation that he refused to submit to a chemical test, in violation of Vehicle Code former section 23159. Prior to trial, appellant made a motion to suppress evidence. Following the denial of the motion, he pleaded nolo contendere. Appellant contends...
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The question is whether an order imposing sanctions against an attorney pursuant to Fed.R.Civ.P. 16© is immediately appealable. Applying the principles established in Cunningham, v. Hamilton County, 527 U.S. 198, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (holding that sanctions orders under Fed.R.Civ.P. 37(a)(4) are not immediately appealable), we hold that such orders are appealable only after fi...
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Plaintiffs-appellees are Los Angeles Police Department (“LAPD”) sergeants who alleged retaliation by their employer for exercise of First Amendment Rights. Defendant-appellant, the City of Los Angeles (“the City”), was found liable for damages under 42 U.S.C. § 1983 (1994) following a jury trial. Appellant asserts it is entitled to entry of judgment in its favor as a matter of law, because any ...
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222 F.3d 562 (9th Cir. 2000) IDAHO SPORTING CONGRESS INC.; THE ECOLOGY CENTER, Plaintiffs-Appellants,v.DAVID ALEXANDER, Supervisor, Payette National Forest; UNITED STATES FOREST SERVICE, an agency of the U.S. Department of Agriculture, Defendants-Appellees,INTERMOUNTAIN FOREST INDUSTRY ASSOCIATION; BOISE CASCADE CORPORATION; EVERGREEN FOREST PRODUCTS, INC., Intervenors-Appellees. No. 99-...
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Roger Michael plead guilty to counterfeiting and forging obligations or securities of the United States in violation of 18 U.S.C. § 471 (2000). In sentencing Michael, the district court applied a two level enhancement for possession of a dangerous weapon in connection with the offense. See U.S.S.G. § 2B5.1(b)(3) (1998). We affirm. A weapon is considered to be dangerous within the meaning of t...
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99 Cal.Rptr.2d 69 (2000) 23 Cal.4th 1153 5 P.3d 130 The PEOPLE, Plaintiff and Respondent, v. Christopher Clark BOX, Defendant and Appellant. No. S019798. Supreme Court of California. August 17, 2000. Rehearing Denied October 3, 2000. *81 Alan S. Yockelson, Eugene, and Richard P. Siref, San Diego, under appointments by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lock...
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*50 Opinion Appellant, Martha Elena Herrera, and her codefendant, Juanita Hernandez (also referred to as Juana Hernandez), were jointly charged with two counts of transporting or selling methamphetamine in violation of Health and Safety Code section 11379, subdivision (a) (counts 1 and 2), and one count of possessing methamphetamine for sale in violation of Health and Safety Code...
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Opinion By Judge SCHROEDER; Concurrence by Judge SNEED. This is a trademark dispute. The principal issue is whether the district court in California has personal jurisdiction over the defendant, a Georgia corporation. We hold that the district court can exercise specific jurisdiction over this suit because the complaint alleges the defendant engaged in wrongful conduct that individually targeted ...
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Opinion by Judge McKEOWN; Dissent by Judge D.W. NELSON. This case requires us to apply copyright principles to stylized photographs of a vodka bottle. Specifically, we must decide whether professional photographer Joshua Ets-Hokin’s commercial photographs, dubbed “product shots,” of the Skyy Spirits vodka bottle merit copyright protection. Given the Copyright Act’s low threshold for originality g...
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This case is about whether a district court may dismiss a petition filed by a litigant in an effort to circumvent a vexatious litigant order entered against him in bankruptcy court. I FACTS Between December 1997 and August 1998, Fillbach filed for bankruptcy three times. His petition was dismissed each time for failing to comply with virtually all the required forms and orders of the bankru...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard the the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth *615Circuit, except to the extent adopted by the en banc court....
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ORDER Upon the vote of a majority of nonrecused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. . Judges Wardlaw and Fisher were recused. ...
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Sharon Schneider appeals the district court’s decision affirming the administrative law judge’s (“ALJ”) denial of her application for disability benefits. The primary issue before us is whether the ALJ erred when he failed to consider five letters that Ms. Schneider submitted from friends and ex-employers who describe her functional limitations in the workplace. We determine that the ALJ erred by...
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This case involves a challenge by environmental groups to the United States Army Corps of Engineers (“Corps”) decision to grant Maguire Thomas Partners-Playa Vista (“MTP-PV”)2 a permit to fill 16.1 acres of federally delineated wetlands and to mitigate the fill by creating a 51-acre freshwater wetland system. Wetlands Action Network and California Public Interest Research Group (collectively “WAN”...
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ORDER Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we certify to the Nevada Supreme Court two questions of law that may be determinative of the matter pending before this court and as to which there is no clearly controlling precedent in the decisions of the Nevadá Supreme Court. BACKGROUND On February 15, 1994, appellant Anna Marie Rubin was injured in an automobile accid...
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99 Cal. Rptr. 2d 294 (2000) 23 Cal. 4th 1224 5 P.3d 853 CITY OF BARSTOW et al., Plaintiffs and Respondents, v. MOJAVE WATER AGENCY et al., Defendants, Cross-complainants and Respondents; Jess Ranch Water Company, Cross-defendant and Appellant. Mojave Water Agency et al., Cross-complainants and Respondents, v. Manuel Cardozo et al., Cross-defendants and Appellants. No. S071728. Supreme Court of Ca...
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99 Cal. Rptr. 2d 252 (2000) 24 Cal. 4th 1 5 P.3d 815 In re the MARRIAGE OF Susann Margreth BONDS and Barry Lamar Bonds. Susann Margreth Bonds, Appellant, v. Barry Lamar Bonds, Respondent. No. S079760. Supreme Court of California. August 21, 2000. Rehearing Denied October 18, 2000. *253 Fancher & Wickland, Paige Leslie Wickland, Paula Conser Fancher, San Francisco, Anne E. Thorkelson; Law Offi...
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Opinion We are asked to decide whether a premarital agreement in which the parties to be married waive the right to spousal support in case of dissolution is enforceable.1 The Court of Appeal held that such agreements are enforceable. It is not necessary to decide in this case whether all such agreements are enforceable regardless of the circumstances of the parties at the time enforcement is soug...
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Opinion This action concerns the validity of a confidentiality clause in a settlement agreement that prohibited the customer in a securities transaction from discussing the selling agent’s misconduct with regulatory authorities. The trial court refused to enforce the clause on grounds of public policy. We agree and affirm. Background Marion L. Hixon 1 joined the staff...
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Opinion Plaintiff R. P. Richards, Inc. (Richards), a subcontractor, sued defendant Chartered Construction Corporation (Chartered), a general contractor, and defendant Travelers Casualty and Surety Company 1 (Travelers) to enforce a stop notice and a stop notice release bond. Richards settled with Chartered, obtained a judgment to enforce the settlement, and continued to prosecu...
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Opinion Appellant Cadiz Land Company, Inc. (Cadiz) 1 challenges under the California Environmental Quality Act (CEQA) 2 the County of San Bernardino’s certification of an environmental impact report and related *81 approval of Rail Cycle, L.P.’s proposed landfill project (landfill). 3 The proposed landfill site is located in the Mojave Desert ...
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Opinion In July 1999, the San Diego County Health and Human Services Agency (the Agency) filed a dependency petition as to eight-month-old Isaiah C., alleging there was a substantial risk that he would suffer serious physical harm or illness as a result of Kimberly H.’s failure to *69provide the necessities of life. (Welf. & Inst. Code1 § 300, subd. (b).) The petition specifically alleged Kimberl...
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J. Sacramento Garcia, Maria L. Gomez Gamino, and Noel C. Garcia Gomez, natives and citizens of Mexico, petition for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”) denial of their motion to reopen deportation proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). 2 We review the denial of a motion...
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222 F.3d 1210 (9th Cir. 2000) SEBASTIAN H. JIMINEZ, Petitioner-Appellant,v.BERTRAM RICE, Warden, Respondent-Appellee. No. 99-15574 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 10, 2000--San Francisco, CaliforniaFiled August 22, 2000 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION SEE 246 F.3d 1277. ...
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Steven Edward Manning filed this habe-as petition alleging ineffective assistance of counsel because his defense attorney failed to file an appeal from the conviction even after Manning specifically requested him to appeal. The district court dismissed the petition on procedural grounds and also on the merits. We reverse and remand. I Manning was convicted of lewd conduct with and sexual abus...
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Michelle Sandy’s disability benefits were terminated when Reliance Standard Life Ins. Co., her ERISA Plan’s Administrator, determined that she could perform her regular occupation as an accountant at Toshiba American Medical Systems. She filed suit, and the district court — before our decision in Kearney v. Standard Ins. Co., 175 F.3d 1084 (9th Cir.1999) (en banc) — held that the Pla...
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Opinion California employs the M’Naghten test for insanity. an must ing the nature of his or her act, or distinguishing right from wrong. Here we conclude that the test for idiocy is the same. Charles Phillips was found guilty of second degree robbery. (Pen. Code, § 211.) 1 The jury also found that a principal in the robbery was armed with a firearm. (§ 12022, subd. (a)(1).) * Phillips cont...
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This appeal returns to us on remand from the Supreme Court for further consideration in light of Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), decided after the issuance of our prior opinion in this case. See Delgado v. Lewis, 181 F.3d 1087 (9th Cir.1999) (‘Delgado I”). After reconsideration, we conclude that Smith alters our analysis, but not the result. Thus, we...
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Jerry Richard Jensen filed an action for damages pursuant to 42 U.S.C. § 1983 for unlawful arrest and restraint against Lane County, certain officials, a hospital, and a private medical practitioner, Jeffrey M. Robbins, M.D. The district court granted summary judgment in favor of Dr. Robbins, and the other defendants went to trial, where the jury found in their favor. The only issue on this appeal...
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This is an appeal from an order of criminal contempt against a criminal defense attorney from New York who repeatedly violated the ground rules the district court had laid down for the conduct of a jury trial. The principal legal issue the attorney raises, and amicus National Association of Criminal Defense Lawyers (NACDL) supports, is that obstruction of justice is a prerequisite to criminal con...
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Joe John Kafka appeals his conviction for possession of a firearm while under a domestic violence restraining order in violation of 18 U.S.C. § 922(g)(8). On appeal, Kafka contends that section 922(g)(8) violates due process because it does not require notice to be given to persons subject to state domestic violence restraining orders that they are prohibited from possessing firearms under federa...
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AUSA Robin Harris appeals the decision of the United States District Court for the Northern District of California that she violated Rule 2-100 of the California Rules of Professional Conduct. The United States petitions this court for a writ of mandamus to prevent the district court from giving a jury instruction Intended to remedy what the trial court viewed as Harris’ Rule 2-100 violation. F...
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Opinion Dante Lavelle Hector appeals from the judgment entered following a jury trial which resulted in his conviction of second degree murder (Pen. Code, § 187, subd. (a)), during the commission of which he personally used a firearm (Pen. Code, § 12022.5, subd. (a)(1)). The trial court sentenced Hector to 25 years to life in prison. Hector’s contention the trial court erred in denying his mo...
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Opinion From 1911 to 1965, at least four published appellate court decisions decided that brandishing a firearm was not a lesser included *215 offense to assault with a deadly weapon (firearm). 1 Without discussion, our Supreme Court in 1967 ignored those cases and impliedly held the reverse. (People v. Wilson (1967) 66 Cal.2d 749, 764 [59 Cal.Rptr. 156, 427 P.2d 820] (Wilson).) In a ...
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Julie Beaty brought a successful race- and sex-harassment lawsuit under California’s Fair Employment and Housing Act (FEHA), Cal. Gov’t Code § 12904 et seq., against her former employer, BET Holdings, Inc. After she prevailed at trial, she applied for and was awarded attorneys’ fees under Cal. Gov’t Code § 12965, which provides for such fees for the prevailing party in an FEHA case. ...
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In this Title VII action instituted by the EEOC, Dinuba Medical Clinic (the “Clinic”) appeals from the district court’s final judgment, entered after a jury trial, awarding compensatory and punitive damages, as well as injunctive and other equitable relief, to three former employees of the Clinic who alleged that they had been subjected to a hostile working environment and that the Clinic had u...
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Opinion by Judge TASHIMA; Concurrence by Judge BRUNETTI. Geovanni Hernandez-Montiel (“Geovan-ni”),1 a native and citizen of Mexico, seeks review of a decision of the Board of Immigration Appeals (“BIA”), denying his application for both asylum and withholding of deportation. The BIA dismissed Geovan-ni’s appeal because it agreed with the immigration judge (“IJ”) that Geovanni failed to show that ...
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Alexis Shumway appeals the federal district court’s denial of her 28 U.S.C. § 2254 habeas corpus petition challenging her state conviction of first-degree murder. We have jurisdiction pursuant to 28 U.S.C. § 2253 and review the district court’s decision de novo. 2 I. Suzine Van Sickle died on November 18, 1990. On February 18,1991, Alexis Shum-way contacted the police, stating that she ...
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Cabrera and Mulgado appeal their convictions for conspiracy to distribute, possession with intent to distribute, and distribution of crack cocaine. We reverse both Cabrera’s and Mulgado’s convictions because at their joint trial the lead detective injected extraneous, prejudicial material, including impermissible references to Cabrera and Mulgado’s national origin. 1 I. In 1997, a confident...
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222 F.3d 597 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant,v.ALPHONSO NERBER; EDUARDO ALVAREZ; ALBERTO BETANCOURT; RAMON BETANCOURT-RODRIGUEZ, Defendants-Appellees. No. 99-30161 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted March 10, 2000--Seattle, WashingtonFiled August 24, 2000 Annette L. Haye...
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99 Cal. Rptr. 2d 745 (2000) 24 Cal. 4th 83 6 P.3d 669 Marybeth ARMENDARIZ et al., Plaintiffs and Respondents, v. FOUNDATION HEALTH PSYCHCARE SERVICES, INC., Defendant and Appellant. No. S075942. Supreme Court of California. August 24, 2000. *750 Pillsbury Madison & Sutro, William Gaus, Craig E. Stewart, Alice Kwong Ma Hayashi and Emily E. Flynn, San Francisco, for Defendant and Appellant. Pau...
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99 Cal.Rptr.2d 316 (2000) 24 Cal.4th 61 5 P.3d 874 Barry JOHNSON, Plaintiff and Appellant, v. CITY OF LOMA LINDA et al., Defendants and Respondents. No. S074261. Supreme Court of California. August 24, 2000. *319 Duchrow & Barker and David J. Duchrow for Plaintiff and Appellant. Liebert, Cassidy & Frierson, Debra L. Bray, Brian E. Cooper, Los Angeles, and Steven M. Berliner, for Defendant...
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99 Cal.Rptr.2d 485 (2000) 24 Cal.4th 130 6 P.3d 150 The PEOPLE, Plaintiff and Respondent, v. Manuel MENDOZA, Defendant and Appellant. No. S008621. Supreme Court of California. August 24, 2000. Rehearing Denied November 1, 2000. *496 Fern M. Laethem and Lynne S. Coffin, State Public Defenders, under appointments by the Supreme Court, Virginia C. Lindsay and William T. Lowe, Acting Chief Assistant ...
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Opinion In this appeal from the trial court’s denial of a petition for writ of administrative mandate, we are called upon to determine whether legislation requiring local redevelopment agencies to contribute to a local Educational Revenue Augmentation Fund (ERAF) constituted a reimbursable state mandate under article XIII B, section 6 of California’s Constitution. As we shall explain...
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Opinion In a four-count information, Donald Stephen Becker and Montoye Jones were charged with conspiring and attempting to commit robbery and burglary. The information also alleged that defendants were armed with a firearm during these offenses and that Becker had suffered a prior strike conviction. Jones pleaded guilty and turned state’s evidence. Becker was convicted of the conspiracy counts an...
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Talmage Ellis appeals the dismissal of his petition for writ of habeas corpus by the United States District Court for the District of Oregon. On July 16,1990, Ellis was convicted of attempted murder and assault against Larry Hickman. Ellis argues that the evidence at his criminal trial could not support either charge and that his trial counsel’s incompetent assistance violated his Sixth Amendment...
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Opinion by Judge MICHAEL DALY HAWKINS; Dissent by Judge BEEZER. K F Dairies, Inc. and Affiliates (“KF Dairies”) appeal the district court’s reversal of the bankruptcy court’s $1,142,783 *924judgment against Fireman’s Fund Insurance Company (“Fireman’s”). The bankruptcy court concluded that Fireman’s should not have refused to defend KF Dairies against the State of California’s claim in KF Dairies...
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In this appeal, we consider whether a bankruptcy attorney, properly admitted to practice in the relevant federal district *620 court, may be denied fees pursuant to 11 U.S.C. § 101(4) because he is not admitted to practice in the state where the district court sits. We conclude he may not, and we affirm the judgment of the Bankruptcy Appellate Panel. I Debtor Mary Poole f...
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OVERVIEW The district court approved a class action settlement in a suit brought by the class plaintiffs against U.S. West Cellular of California, Inc. and AirToueh Cellular. In two separate fee awards, the court awarded class counsel attorney fees of $923,390.97 and $1,000,000, in addition to costs. Pamela Havird, a member of the class, appeals the district court’s approval of the settlement and...
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Rodney McLean worked for the United States Postal Service (“USPS”) for nine- and-a-half years as a Mark-Up Clerk until his disabilities prevented him from performing the duties of that position, even after USPS tried to modify the position to accommodate him. Taking the initiative to find a comparable, vacant position to which *1152 he could be reassigned, McLean identified over 40...
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The government appeals the district court’s pre-trial dismissal of Counts 1 and 2 of a three-count indictment of Appellee David L. Ertsgaard. We reverse. I. Background Ertsgaard is a commercial fisherman who is licensed to harvest halibut from the Gulf of Alaska. On September 15, 1998, Ertsgaard was indicted for two violations of the Lacey Act, 16 U.S.C. §§ 3371-3378. Count 1 charged that Ert...
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222 F.3d 633 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant,v.STEVEN J. HENKE, Defendant-Appellant/Cross-Appellee.UNITED STATES OF AMERICA, Plaintiff-Appellee/Cross-Appellant,v.CHAN M. DESAIGOUDAR, Defendant-Appellant/Cross-Appellee. Nos. 99-10015, 99-10050 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argue...
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Juan Manuel Tadeo (“Tadeo”) appeals from the 21-month sentence imposed by the district court following the revocation of his supervised release. Tadeo contends that the district court abused its discretion in departing upward from the policy statement range of 8 to 14 months for a Grade C violation of a condition of supervised release, and failing to- consider his physical and mental impairments ...
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Opinion This appeal from a judgment of nonsuit challenges the trial court’s conclusion that the asbestos wrongful death action was barred by the Montana statute of repose, as made applicable by our own “borrowing statute.” This ruling was sound, as was the court’s award of costs. Accordingly, we affirm the judgment. I. Background Appellants, the surviving heirs and the executor of the estat...
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Opinion Statement of Facts Real party in interest in this court, Rodney Berryman, Sr., was convicted of murder and sentenced to death in Kern County Superior Court. The *310 conviction and sentence were upheld by the California State Supreme Court. In a petition for writ of habeas corpus filed in the United States District Court for the Eastern District of California, real party in interest...
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We confront the question of whether the Board of Immigration Appeals (“BIA”) may hold the adjudication of petitioner’s asylum application in abeyance pending the resolution of his parallel ■ extradition proceedings in federal district court. We conclude that the BIA may do so, and affirm the judgment of the district court, albeit on different grounds. I On April 25, 1993, the Immigrat...
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Appellant Emmitt Granville entered a conditional plea of guilty to attempted murder of officers of the United States, in violation of 18 U.S.C. § 1114, reserving for appeal the denial of his motion to suppress evidence obtained from a search of his residence. Granville argues that the district court erred in concluding that the search warrant for Granville’s residence was supported by probable ca...
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I agree with the majority’s conclusion that Penal Code section 529, paragraph 3,1 does not require “an intent to subject the impersonated individual to liability for suit or prosecution, or to secure a benefit for any person.” (Maj. opn., ante, at p. 202.) I also concur with its disposition. The majority, however, does not adequately define the mental state required for the crime of false personat...
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Opinion As a lessor’s insurer, plaintiff Fire Insurance Exchange (FIE) seeks reversal of a summary judgment denying its subrogation claim against the lessees, defendants Reginald Hammond and Sevilla Hammond, for fire damages it attributes to their negligence or the negligence of their guests or invitees. The trial court relied on Parsons Manufacturing Corp. v. Superior Court (1...
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Petitioner Melencio Legui Lim petitions from the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal from an immigration judge’s (“IJ”) denial of asylum and denial of withholding of deportation. We hold that the BIA erred in denying asylum eligibility, but we affirm the BIA’s denial of withholding of deportation. BACKGROUND Melencio Lim entered the United States in Aug...
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This case poses the question, what is bingo? Cf. Frigaliment Importing Co. v. B.N.S. Int’l Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960) (Friendly, J., sitting by designation) (“The issue is, what is chicken?”). In particular, we determine whether an electronic game called MegaMania, manufactured and sold by Appellee Multimedia Games, Inc. (“Multimedia”), is “bingo” as that term is defined in t...
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Lee, Lavender, and Rodriguez appeal from sentences imposed after they pled guilty to aiding and abetting each other in a bank robbery, in violation of 18 U.S.C. §§ 2(a), 2113(a). They argue against sentence enhancements applied pursuant to United States Sentencing Guideline § 2B3.1(b)(2)(E). The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 1...
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Opinion Introduction May a shareholder sue its corporation’s outside counsel in a derivative action for legal malpractice arising out of counsel’s representation of the corporation, where the corporation refuses a proper demand to commence the action? Under the procedural posture of this case (a denial of a motion for judgment on the pleadings), we are not called upon to a...
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Opinion Melvin Horton Harris is no stranger to the justice system, penal institutions, or state hospitals. He has suffered 11 serious felony convictions. This time a jury convicted him of possessing methamphetamine and marijuana for sale. (Health & Saf. Code, §§ 11378, 11359.) He was sentenced to state prison for 50 years to life as a “three striker.” (Pen. Code, § 667, subd. (e)(2)(A)(ii...
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Opinion This is an in rem civil forfeiture proceeding involving two vehicles seized at a cockfight, pursuant to Penal Code section 599aa (all further references to undesignated statutory sections are to the Penal Code unless otherwise indicated). Under section 599aa, an officer making an arrest under provisions relating to animal or bird fighting “may, lawfully take possession of all bird...
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Opinion Plaintiff Peter Belmonte sued defendants Employers Insurance Company and Commercial Union Insurance Companies (collectively Insurers) for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. He alleged Insurers wrongfully refused to provide him with a defense under a commercial general liability insurance policy in an action brought ...
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Opinion This proceeding concerns the extent to which the attorney-client and work product privileges may be used by a public prosecutor who is the subject of an ongoing criminal investigation to prevent documents seized pursuant to validly issued and executed search warrants 1 from being reviewed by law enforcement. In this criminal investigation of real party in interest Deput...
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Dr. Ronald Y. Chuang and Dr. Linda Chuang contend that officials at the University of California, Davis (“Davis”) discriminated against them on the basis of their race (Asian) and national origin (Chinese), in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. 2 The Chuangs allege that they suffered discrimination as a result of: (1) Davis’s fail...
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*440 Opinion Two partners withdrew from a law partnership and took the firm’s largest client with them. The remaining partners decided to immediately dissolve the firm and the former partners sued the two departing partners and their new firm for declaratory relief, accounting, breach of fiduciary duty, breach of contract, and other causes of action in two separate actions seekin...
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Opinion Diana Michelson appeals from a judgment entered following the grant of summary judgment in favor of respondent Mid-Century Insurance Company (Mid-Century). Background This is one of many cases arising out of the January 17, 1994 Northridge earthquake. Michelson was a homeowner insured by Mid-Century. The policy had a provision requiring commencement of litigation within one year aft...
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223 F.3d 990 (9th Cir. 2000) In re: COUNTY OF LOS ANGELES;In re: SCOTT HOGLUND COUNTY OF LOS ANGELES;In re SCOTT HOGLUND, Petitioners,v.UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, Respondent,JAMES FORSYTH, Real Party in Interest. No. 00-70077 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Submitted April 19, 2000*...
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OPINION In this case we explain the clear difference between two alternative grounds for disallowance of debtors’ untimely claim of exemptions: bad faith, and prejudice to third parties. We stress the need for concrete evidence of bad faith, and reiterate that delay alone is not bad faith, and that prejudice, once ameliorated, is not a basis to deny a claim of exemption. Debtors ...
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OPINION Appellant Warren Joseph Stoll (“Debt- or”) sought damages against the real estate brokers (“Appellees”) hired by the trustee in his Chapter 7 2 case to assist with the sale of real property owned by the bankruptcy estate. The bankruptcy court dismissed Debtor’s complaint. We AFFIRM because the individual beneficiaries of a bankruptcy estate, including individual credito...
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99 Cal. Rptr. 2d 792 (2000) 24 Cal. 4th 301 6 P.3d 713 COLLECTION BUREAU OF SAN JOSE, Plaintiff and Appellant, v. Donald RUMSEY, Defendant and Respondent. No. S079190. Supreme Court of California. August 31, 2000. *794 Robert E. Amos, Santa Clara, for Plaintiff and Appellant. Robert A. Boland, Redwood City, for Defendant and Respondent. *793 BAXTER, J. In this case we determine which statute of l...
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Opinion Petitioners United Food and Commercial Workers Union, Local No. 324, AFL-CIO, CLC (Local 324) and United Food and Commercial Workers Union, Local No. 770, AFL-CIO (Local 770) (collectively, the unions) seek writs of mandate to overturn an order denying their respective motions for summary judgment in an action brought by an employer, real party in interest Gigante USA, Inc. (Gigan...
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Opinion Defendants April Lynne Grayson and Joseph Bo Lewis were charged with a variety of offenses involving two young women, 19-year-old Shadell and 14-year-old Corrine F. (Corrine). The jury convicted Grayson of several crimes involving Shadell, namely, kidnapping (Pen. Code, § 207 [further section references are to the Penal Code unless otherwise indicated]), false imprisonment (§ 236), procur...
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Opinion Marianne Rothschild filed an action against Tyco International (US), Inc. (Tyco), Watts Industries, Inc. (Watts), James Jones Co. (Jones), Mueller Co. (Mueller), Westbume Supply, Inc. and Marden Susco Company (collectively, the defendants), alleging that the defendants violated the unfair competition law (Bus. & Prof. Code, § 17200 et seq.; Cel-Tech Communications, Inc. v. L...
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Sidney Walter Scott, an inmate at the Eastern Oregon Correctional Institution, brought a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Scott claims that the Oregon Board of Parole and Post-Prison Supervision’s (the Board) denial of biennial reviews of his status as a “dangerous offender” violates the Ex Post Facto Clause. The district court denied Scott’s petition. Scott appealed...
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Opinion Bernadette F., appeals from the order terminating her parental rights (Welf. & Inst. Code, § 366.26) to William C. and Laura F. 1 Because the minors are Indian children, the court was required to comply not only with California’s dependency law, but also the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), which establishes minimum federal standards, both pro...
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Opinion Introduction Real Party in Interest Sonora Union High School District (District) sued Sonora Mining Corp. (Sonora Mining) and petitioner Sonora Diamond Corp. (Diamond) for breach of contract. Diamond moved for an order quashing service of process on the ground the trial court was without personal jurisdiction over Diamond. The District’s position that jurisdiction existed rel...
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After affirming our prior judgment in part and reversing in part, the United States Supreme Court remanded this case for a determination of whether the California Dental Association’s advertising restrictions are anticompetitive under rule-of-reason analysis. Having closely examined the record under the rule of reason, we conclude that the Federal Trade Commission failed to prove that the restr...
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Charles Tyree Green, a prisoner in the State of California, appeals from the federal district court’s dismissal of his petition for a writ of habeas corpus. The district court found that the petition was untimely filed under 28 U.S.C. § 2244, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. I. ...
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Plaintiffs Dale and Terry Lucht have an autistic son who lives within the area served by Defendant, the Molalla River School District. Plaintiffs’ son is entitled to special-education benefits under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. §§ 1400-1490. After making several informal complaints to Defendant regarding their son’s educational program, Plaintiffs filed a co...
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This appeal presents an insurance coverage question. International Marine Underwriters (IMU), a division of Commercial Union Insurance Company, appeals the judgment in favor of Quigg Brothers-Sehermer, Inc. (Quigg Brothers). We reverse and render. During a storm in November, 1995, two of the Quigg Brothers’ construction barges, the SKOOKUM and the NO. 11 SCOW, broke from their moorings near the mo...
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223 F.3d 1004 (9th Cir. 2000) In re: SUPERIOR STAMP & COIN CO., INC., Debtor.CAROLYN ADAMS, individually and as the Personal Representative of the Estate of Clarke E. Adams, Appellant,v.PETER A. ANDERSON, Chapter II Trustee, Appellee. No. 99-55204 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted June 9, 2000--Pasad...
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225 F.3d 1030 (9th Cir. 2000) MARY J. KLING, an individual, Plaintiff-counter-defendant-Appellant,v.HALLMARK CARDS INC., a Missouri corporation; MATTEL, INC., a Delaware corporation, Defendants-Appellees,DIC ANIMATION CITY INC., f/k/a/ Live Film and Mediaworks, Inc., Defendant-cross-defendant-Appellee,UNITED FEATURE SYNDICATE INC., Defendant-counter-claimant-cross-claimant-Appellee. No. 9...
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227 F.3d 1082 (9th Cir. 2000) GLORIA MUNGER, Personal Representative of the Estate of Lance K. Munger, deceased; and DONALD M. MUNGER and GLORIA MUNGER, individually, Plaintiffs-Appellants,v.CITY OF GLASGOW POLICE DEPARTMENT, MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'S DEPARTMENT, BRIEN GAULT and TIM NIXDORF, Defendants-Appellees,MICHAEL SUKUT, VERNON BUERKLE, VALLEY COUNTY SHERIFF'...
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The only issue in this case is whether there was a sufficient articulated basis for reasonable suspicion for a vehicle stop. *1138 I. FACTS These facts come from the testimony at the suppression hearing. There were no substantial factual disputes. A rental car came across the border around 5:30 in the morning, north of a little town in Eastern Washington called Oroville. It was still da...
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Abbas Zahedi, a citizen of Iran, petitions for review of the determination of the Board of Immigration Appeals (“BIA” or “Board”) that he has not established asylum eligibility. Zahedi was involved in an endeavor with one other person to translate and informally distribute a Farsi edition of Salman Rushdie’s banned novel The Satanic Verses. His partner in the project was arrested and...
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Opinion "Code of Civil Procedure section 1355[1] allows a potential heir five years from the state’s initial reception of an escheated estate to file a claim to recover the estate.” (Estate of Cruz (1989) 215 Cal.App.3d 1416, 1418 [264 Cal.Rptr. 492].) Under section 1355, the potential heir makes a claim by filing a petition that includes a detailed family history of the decedent, or a statement ...
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Opinion Appellant Mary Thorpe petitioned for writ of mandate (Code Civ. Proc., § 1085) to overturn the decision of respondent Long Beach Community College District (hereinafter, the Community College District) disqualifying her from consideration for promotion from her position of “Accountant” to the newly created position of “Supervisor, Accounting Special Projects.” The trial court deni...
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The narrow question we must answer is whether the First Amendment compels a public high school to share the podium with a teacher with antagonistic and contrary views when the school speaks to its own constituents on the subject of how students should behave towards each other while in school. The answer to this question clearly is no. Appellant Robert Downs is a teacher at Doris S. Leichm...
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Troy Anthony Edwards appeals his conviction from his second trial on one count of possession of cocaine with intent to distribute. Because we find that the actions of the government denied Edwards the right to a fair trial, we reverse. The prosecution of Edwards has been troubled from the beginning. At the first trial, the government allegedly found a bail receipt linking Edwards to the bl...
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We must decide whether a person who knowingly transports an illegal alien in the United States but does so in the course of his employment lacks the mens rea necessary to support a conviction for transportation of an illegal alien. Ramon Hernandez-Guardado (“Hernandez-Guardado”) and his codefendant, Dario Jimenez-Frias (“Jimenez-Frias”), appeal from convictions imposed after jury trial for transp...
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Application for stay, presented to Justice O'Connor, and by her referred to the Court, granted as to the order granting the motion to modify the injunction, and as to paragraph 6 of the amended preliminary injunction, both entered by the United States District Court for the Northern District of California, ease No. 98-0088 CRB, on July 17, 2000. The stay shall be in effect pending final dispositio...
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223 F.3d 1010 (9th Cir. 2000) MARIO AGUILERA; RODOLFO ABELLA; JAMES ALCORN; JAMES APODACA; JESSE ARENIVAS, JR.; RICHARD ARROYO; VALENTIN JOSE AVILA; TONYA BADGETT; JAMES A. BARNES; RONALD L. BAUMGARTNER; DANIEL BAUTISTA; DAVE BLAIR; JOHN BLAIR; VERNON BRESENIO; JOHN BRIGGS; TONY BRUNO; JOHN R. BURLESON; RUBEN CANO; GENARO CASTILLO; EUGENE CHESTER; BEN CHRISTIAN; DAVID CLEMENTE; RANDALL COOMER...
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223 F.3d 1111 (9th Cir. 2000) DAN MARIUS ANDREIU, Petitioner,v.JANET RENO, Attorney General, Respondent. No. 99-70274 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 23, 2000*--San Francisco, CaliforniaFiled September 8, 2000 Linton Joaquin, National Immigration Law Center, Los Angeles, California, for t...
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223 F.3d 1020 (9th Cir. 2000) AARATHI DESAIGOUDAR, as Trustee of the Chan Desaigoudar Charitable Foundation, a California charitable trust, Plaintiff-Appellant,v.WADE MEYERCORD; SCOTT HOVER-SMOOT; ANGEL JORDAN; JEFFREY KALB; C. KUMAR PATEL; STUART SCHUBE; JOHN SPRAGUE; and JOHN TREWIN, Defendants-Appellees. No. 98-17154 Office of the Circuit Executive U.S. Court of Appeals...
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The State of California appeals from the district court’s grant of habeas corpus relief to Damacio Torres under 28 U.S.C. § 2254. The district court concluded that Torres’s due process rights were violated when the state trial court failed to hold a hearing to determine whether Torres was competent to stand trial, despite considerable evidence suggesting that he was not. See Pate v. Robinson, 3...
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223 F.3d 1026 (9th Cir. 2000) JONATHAN ANDREW WYNER, by and through his guardian ad litem, STEVEN MARCUS WYNER; NANCY MARIE WYNER; STEVEN MARCUS WYNER, Plaintiffs-Appellants,v.MANHATTAN BEACH UNIFIED SCHOOL DISTRICT; BOARD OF EDUCATION OF MANHATTAN BEACH UNIFIED SCHOOL DISTRICT, Defendants-Appellees. No. 98-56853 Office of the Circuit Executive U.S. Court of Appeals for th...
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*719Opinion Augustini & Wheeler LLP (A&W) appeals from a judgment in interpleader, entered after the trial court found that its lien for attorney fees was subordinate to the claims of two secured creditors. The trial court concluded that the doctrine of unjust enrichment, a recognized exception to the Uniform Commercial Code lien priority system, did not apply. (See Knox v. Phoenix Leasing Inc. (...
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Opinion Felicia W., the mother of Daijah T. and Shawn T., appeals from juvenile court orders denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further undesignated statutory references are to that code.) Appellant contends the court erroneously denied her an evidentiary hearing on the petition, resulting in a violation of ...
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The Agua Caliente Band of Cahuilla Indians and the Agua Caliente Tribal Corporation (collectively “the Tribe”) seek a declaratory judgment that federal law precludes imposition of the State of California’s sales and use tax on purchases of food and beverages by non-tribal members at a tribal resort on reservation land. The district court determined that the Eleventh Amendment barred the Tribe’s cl...
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Plaintiff/Appellee Howard Chabner brought suit against DefendanVAppellant United of Omaha Insurance Company (“United”) for alleged violations of the Americans with Disabilities Act (“ADA”) *1045 and of various California state laws. Chabner, who is disabled, claims that United unfairly discriminated against him by offering him a life insurance policy that substantially overcharged ...
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224 F.3d 995 (9th Cir. 2000) SAMSON DUBRIA, Petitioner-Appellant,v.G.A. SMITH, Warden, Respondent-Appellee. No. 98-55914 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 4, 1999 Pasadena, CaliforniaOpinion Filed November 19, 1999Order Granting Rehearing En BancFiled March 9, 2000Argued and Submitted En Banc June 22, 2000--San Francisco, CaliforniaFiled Sept...
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I. This appeal arises out of the extensively litigated bankruptcy of Ken Mizuno, a Japanese land developer who defrauded thousands of Japanese investors in a golf course and country club development, and used some of the money to pay gambling debts and make preferential transfers in the United States. Mirage Resorts, Inc., Mirage Hotel-Casino, and Golden Nugget Casino, Inc. (collectively Mirage...
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224 F.3d 972 (9th Cir. 2000) ROCKY DEAN LABOA, Petitioner-Appellant,v.ARTHUR CALDERON, Warden, Respondent-Appellee. No. 99-15816 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 10, 2000--San Francisco, California Filed September 11, 2000 [Copyrighted Material Omitted] COUNSEL: Eric S. Multhaup and Tara M. Mulay, Mill Valley, California...
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223 F.3d 1035 (9th Cir. 2000) RE: DWIGHT C. LUNDELL; DINAH F. LUNDELL, debtors, Appellants,v.ANCHOR CONSTRUCTION SPECIALISTS, INC.; LORAL TERRACOM; FOSHAY ELECTRIC CO., INC.; U.S. POWER & TELEPHONE SUPPLY COMPANY, Appellees. No. 98-17090; 98-17260 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 11, 2000--San ...
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227 F.3d 1090 (9th Cir. 2000) MANISTEE TOWN CENTER, an Arizona Limited Liability Company, Plaintiff-Appellant,v.CITY OF GLENDALE, a municipal corporation; ELAINE SCRUGGS, in her official and individual capacity (wife); LAWRENCE SCRUGGS, husband; DAVID GOULET, in his individual and official capacity (husband); MARY GOULET, wife, aka: Jane Doe Goulet; TOM EGGLESTON, in his official and individu...
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224 F.3d 960 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JEFFREY LITTLEJOHN, Defendant-Appellant. No. 99-50417 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted August 7, 2000--Pasadena, CaliforniaFiled September 11, 2000 [Copyrighted Material Omitted] COUNSEL: Gretchen Fusilier, Carlsbad, California, for the defendant-appellant. ...
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Opinion by Judge CANBY; Dissent by Judge REINHARDT. In this case we are called upon to apply the Supreme Court’s recent decision in Apprendi v. New Jersey, — U.S. -, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi held that a fact that increases the prescribed statutory maximum penalty to which a criminal defendant is exposed must be submitted to a jury and proven beyond a reasonable doubt. Id. ...
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On April 8, 1999, a jury convicted Francis Joseph Reilly of Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a) & (d) and Use of a Firearm During a Bank Robbery in violation of 18 U.S.C. § 924(c)(1)- On appeal, Reilly presents three arguments: (1) federal officers failed to comply with the knock and announce requirement under 18 U.S.C. § 3109; (2) the failure to provide Reilly with a ...
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224 F.3d 1093 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant-Cross-Appellee,v.BRENDA LEE WORKING, Defendant-Appellee-Cross-Appellant. No. 98-3012198-30122 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 12, 1999 Filed May 6, 1999 Rehearing En Banc Granted Opinion Withdrawn Nov. 1, 1999 Argued and Submitted March 21, 2000--San Franci...
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*762Opinion After the City of San Diego (City) filed a public nuisance abatement action against La Cresta Motel owners Shirish Kothari, Mrudula Kothari, Deval Patel and Mahendra Patel (collectively, Owners), the parties stipulated to the terms of a permanent injunction against Owners. The sole issue at trial was whether the injunction would be binding on all future owners of the property. The tri...
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TLC Hospitals, Inc. (“TLC”) was the operator of skilled nursing facilities that provided many of their services subject to reimbursement by Medicare, a health insurance program administered by the United States Department of Health and Human Services (“HHS”). In 1994, TLC filed a petition in bankruptcy but contin *1010 ued to provide Medicare nursing services for some time thereaft...
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PER CURIAM Opinion; Concurrence by Judge D.W. NELSON James Matson appeals the district court’s denial of his motion to dissolve a stay of parallel state court proceedings regarding a personal injury suit brought by a former employee. Matson’s suit, brought in state court under the Jones Act, stemmed from injuries suffered while working on the “Anchor Scow,” a vessel owned by Ross. Ross Island, as...
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226 F.3d 996 (9th Cir. 2000) KATUSHA NURSE, Plaintiff-Appellant,v.UNITED STATES OF AMERICA, and 30 UNKNOWN EMPLOYEES OF THE DEPARTMENT OF THE TREASURY, U.S. CUSTOMS SERVICE, in official and individual capacities, Defendants-Appellees. No. 98-56971 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted June 7, 2000--Pasadena, California Filed September 12, 2000 ...
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Thomas Alan Sumner appeals from the order of the district court denying his motion to expunge his twenty-six-year-old *1008 conviction for the unlawful possession of narcotics and to order the Government to remove all records of his arrest and conviction from its central files. The district court denied the motion after concluding that Sumner did not satisfy the criteria for having his criminal...
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ORDER We certify to the California Supreme Court the question set forth in Part III of this order. *1267All further proceedings in this case are stayed pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court. If the California Supreme Court accepts the certified question for answer, the parties shall file a joint report six...
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Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the *1170 en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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Opinion Two developers purchased 91 acres of raw land for $6 million down and a $3 million purchase money note secured by the real property. They agreed to waive antideficiency protection;1 the vendor, in turn, subordinated his promissory note to that of a third party commercial lender. Upon the developers’ default and the senior lender’s foreclosure sale, the vendor sued for his deficiency. In t...
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*743 Opinion Douglas Black, acting as administrator of his deceased brother’s estate, appeals from the judgment entered in favor of the State of California after the state’s demurrers to the first amended complaint were sustained without leave to amend. For the reasons set forth below, we affirm the judgment. Facts and Procedural History Craig Black (decedent) was a lon...
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100 Cal.Rptr.2d 70 (2000) 83 Cal.App.4th 784 The PEOPLE, Plaintiff and Respondent, v. Lionel Andrew SCOTT, Defendant and Appellant. Nos. D033131, D033902. Court of Appeal, Fourth District, Division One. September 12, 2000. Review Denied January 10, 2001. *73 Steven Schorr, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant Lionel Andrew Scott. Bill Lockyer, Attorney ...
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224 F.3d 1030 (9th Cir. 2000) CHEVRON USA, INC., A PENNSYLVANIA CORPORATION, PLAINTIFF-APPELLEE,V.BENJAMIN J. CAYETANO, GOVERNOR OF THE STATE OF HAWAII; EARL I. ANZAI,* ATTORNEY GENERAL OF THE STATE OF HAWAII, DEFENDANTS-APPELLANTS. No. 99-15108 U.S. Court of Appeals, Ninth Circuit Argued and Submitted November 4, 1999September 13, 2000 [Copyrighted Material Omitted] ...
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Kenneth Foster appeals his conviction and sentence for importing marijuana and possessing marijuana with intent to distribute. On appeal, Foster challenges, among other things, the government’s impeachment of his testimony based on a prior conviction for receipt of stolen property and the admission of certain of his post-arrest statements at trial. The district court had original jurisdiction o...
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OVERVIEW Appellant Zhou appeals his conviction for attempted alien smuggling to a place other than a designated port, in violation of 8 U.S.C. § 1324(a)(1)(A). Zhou’s appeal challenges the district court’s finding that venue was proper in the District Court for the Northern Mariana Islands (“CNMI”). Zhou contends that the proper venue of the case was the District of Guam. We agree and ...
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Ramon Velarde-Gomez appeals from his conviction of importation of marijuana in violation of 21 U.S.C. §§ 952, 960, and possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I Velarde-Gomez, a Unit...
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Opinion A jury convicted defendant Robert England of two counts of battery by an inmate on a nonconfined person (Pen. Code, § 4501.5; all further statutory references are to the Penal Code unless otherwise indicated), one count of possession by an inmate of a sharp instrument (§ 4502, subd. (a)), and one count of resisting executive officers by force or violence (§ 69). The jury also foun...
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227 F.3d 1196 (9th Cir. 2000) CARSON HARBOR VILLAGE, LTD., a limited partnership dba Carson Harbor Village Mobilhome Park, Plaintiff-counter-defendant-Appellant,v.UNOCAL CORPORATION, a Delaware Corp., Defendant-cross-defendant,andCITY OF CARSON, Defendant-cross-defendant-cross-claimant-Appellee. Nos. 98-55056, 98-55107, 98-55210, 98-55213, 98-55215, 98-55422 U.S. Court of Appeals for t...
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In this pregnancy discrimination case, we must consider various issues raised under federal employment anti-discrimination law and state contract and tort law. I Rebecca Ann Caudle sued her erstwhile employer, Bristow Optical Company, Inc. (“Bristow”), and her supervisor, Janice Miletich, after Bristow terminated Cau-dle’s employment in the eighth month of her pregnancy. Caudle had joined Bris-tow...
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This appeal brings to mind the maxim that you can please all of the people some of the time, and some of the people all of the time, but you can’t please all of the people all of the time. At issue are the regulations for motorized water craft adopted by the United States Forest Service (“Forest Service”) for portions of the Snake River within the diverse and spec-*1173taeular area known as the He...
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The Federal Subsistence Board, created by the Secretary of the Interior to administer “the subsistence taking and uses of fish and wildlife on public lands,” 50 CFR § 100.10(a) (1999), imposed an antler size restriction on subsistence uses of moose in Game Management Unit (“GMU”) 15 on the Kenai Peninsula. The Ninilchik Traditional Council and a subsistence hunter from the Ninilchik Tribe (coll...
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224 F.3d 1147 (9th Cir. 2000) SANTIAGO PEDRO-MATEO,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70535 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted March 10, 2000--Pasadena, California Filed September 14, 2000 [Copyrighted Material Omitted] COUNSEL: Denis W. Campbell, Law Offices of Curiel & Parker, Santa Monica, Californi...
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223 F.3d 1057 (9th Cir. 2000) REDMOND-ISSAQUAH RAILROAD PRESERVATION ASSOCIATION, Petitioner,v.THE SURFACE TRANSPORTATION BOARD; UNITED STATES OF AMERICA, Respondents.andTHE LAND AND CONSERVANCY OF SEATTLE AND KING COUNTY; and BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, Intervenors. No. 98-70906 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circ...
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226 F.3d 1075 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JAMES EARL MATTHEWS, Defendant-Appellant. No. 98-10499 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2000--San Francisco, CaliforniaFiled September 14, 2000 1 NOTE: SEE AMENDED OPINION AT 240 F.3d 806. ...
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226 F.3d 1020 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.LAWRENCE EZEKIEL REID, Defendant-Appellant.UNITED STATES OF AMERICA, Plaintiff-Appellee,v.WAYNE BLAKE, Defendant-Appellant. No. 99-50067, 99-50141, U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 9, 2000--Pasadena, CaliforniaFiled September 14, 2000 [Copyrighted Materi...
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ORDER The opinion filed April 20, 2000, and reported at 211 F.3d 1109, is withdrawn and superseded by the attached opinion. The petition for rehearing is otherwise denied. OPINION We consider whether we must set aside a guilty plea because the district court failed to advise defendant of his right to be represented by counsel at trial. I On February 27, 1997, three men entered the Farme...
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Opinion Carlsbad Aquafarm, Inc. (Aquafarm) sued the State Department of Health Services (Department), alleging Department violated Aqua-farm’s due process rights by refusing to provide notice or a hearing before it failed to recertify Aquafarm to a list of approved interstate shellfish sellers. The jury found Aquafarm proved the due process violation, and awarded it damages of $290,000. D...
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223 F.3d 1135 (9th Cir. 2000) ROZLYN MCDADE, Plaintiff-Appellant,v.BRIDGETT WEST, as an individual and as an employee of the Ventura County District Attorney; MICHAEL WEST; MICHAEL BRADBURY, as the District Attorney of Ventura County; COUNTY OF VENTURA, Defendants-Appellees. No. 98-56500 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Argu...
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This case requires us to consider whether drug users who purchase drugs from a seller convicted of conspiracy to distribute methamphetamine under 21 U.S.C. § 846 are necessarily participants in the criminal activity for the purposes of the U.S.S.G. § 3Bl.l(b) enhancement for role in the offense. We hold that customers who are solely end users of controlled substances are not participants for th...
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224 F.3d 1157 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOSE FERNANDO QUINTANA-TORRES, Defendant-Appellant. No. 99-50690 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 9, 2000Filed September 15, 2000 1 NOTE: SEE AMENDED OPINION OF DECEMBER 28 2000 AT 235 F.3d 1197. ...
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Opinion This case presents the question of whether a conviction for violation of the “hit and run” statute (Veh. Code, § 20001), during which the victim is seriously injured, automatically qualifies as a *864 serious felony. We follow the principle that the gravamen of the offense of hit and run is the flight of the defendant from the scene of the accident, Thus we determine that such convict...
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Opinion In this rather complex case, we conclude the trial court, operating in a murky area of law, applied an erroneous *851 standard of law in determining the amount of contribution that must be paid by coguarantors of a business debt. (Jessup Farms v. Baldwin (1983) 33 Cal.3d 639, 650, fn. 7 [190 Cal.Rptr. 355, 660 P.2d 813].) Because the relevant facts are undisputed, we apply the cor...
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We must decide, among other issues of civil procedure, whether a party who raises only one defense in a motion to vacate default judgment thereby waives all other defenses. I This appeal is the latest round of antipathy in an ongoing feud between Nevada resident Donald Hayhurst 1 and the American Association of Naturopathic Physicians (“Association”). The Association is a n...
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227 F.3d 1110 (9th Cir. 2000) WORLDWIDE CHURCH OF GOD, a California Corporation, Plaintiff-Counter-Defendant-Appellant,v.PHILADELPHIA CHURCH OF GOD, INC., an Oklahoma Corporation, Defendant-Counter-Claimant-Appellee. Nos. 99-558503, 99-55934, 99-56005, 99-56489 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted Deccember 6, 1999Filed September 18, 2000 [Cop...
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Opinion Allen Douglas Butler and Michael Thomas Cheek were found to be sexually violent predators under the Sexually Violent Predators Act (Welf. & Inst. Code, § 6600 et seq.)1 and were committed to the custody of the state Department of Mental Health (DMH) for two years. We affirmed those commitments in People v. Butler (1998) 68 *955Cal.App.4th 421 [80 Cal.Rptr.2d 357] (Butler I),2 and People v...
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Jesus Ramon Cardenas-Uriarte (“Cardenas”) petitions for review of the Board of Immigration Appeals’ (“BIA’s”) determination that he is deportable under section 212(a)(2)(B) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(2)(B), and ineligible for a waiver of deportation under section 212(c) of the INA, 8 U.S.C. § 1182(c) (repealed in 1996), by virtue of recent amendments to t...
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229 F.3d 853 (9th Cir. 2000) JOHN DEERE INSURANCE COMPANY, an Illinois corporation, Plaintiff-cross-defendant-Appellee,v.GUILLERMO NUEVA, Defendant-Appellant,LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant-cross-claimant-Appellant,andJOO SANG LEE, DEDRIC MANGUM, RASHPAL SINGH, GURMUKH SINGH GARCHA, BLUE STAR TRUCKING, aka Blue Star Transportation, INDERJIT SINGH, SOUTHWEST...
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227 F.3d 1125 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.CONRADO GARCIA-GUIZAR, Defendant-Appellant. No. 99-10435 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 10, 2000Filed September 20, 2000 1 NOTE: SEE AMENDED OPINION AT 234 F.3D 483. ...
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Opinion Introduction In this matter the petitioner was convicted of escape pursuant to a plea bargain which included a provision for presentence credit. After the sentence was entered, the Department of Corrections informed the trial court that petitioner is not entitled to presentence credit because petitioner was serving a prior prison sentence when he was sentenced here. Without holding a heari...
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Opinion The D. Neil Harvey Family Trust (the trust), an inter vivos revocable trust settled by respondent D. Neil Harvey, purchased real property from a bank. As part of the purchase price, the trust gave the bank a purchase money note secured by a deed of trust encumbering the real property. Harvey also signed a guaranty purporting to personally guarantee the secured purchase money note....
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228 F.3d 1036 (9th Cir. 2000) WILLIAM and CATHERINE HOOKS, individually and as parents and natural guardians of CHRISTOPHER HOOKS, a minor, Plaintiffs-Appellants,v.CLARK COUNTY SCHOOL DISTRICT and BRIAN CRAM, in his official capacity as Superintendent of the Clark County School District, Defendants-Appellees. No. 98-17271 United States Court of Appeals for the Ninth Circuit Argued ...
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228 F.3d 1030 (9th Cir. 2000) AMINISITAI TAGAGA, ASINATE TAGAGA, AMINISITAI NAITAGAGA, NANISE NAITAGAGA, SETITA NAITAGAGA, and MELEHOLA NAITAGAGA, Petitioners,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-71251 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 17, 2000Filed September 21, 2000 Charles E. Nichol, San Francisco...
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OPINION Approximately three years after closure of this bankruptcy case, the chapter 7 2 trustee moved to reopen the case to recover the proceeds of the settlement of a personal injury lawsuit the trustee knew about and chose not to administer. The trustee also sought a preliminary injunction prohibiting Debtor from transferring or disposing of settlement funds. The bankruptcy court denied bo...
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OPINION I. Creditors holding a nondischargeable judgment against debtor appeal the decision of the bankruptcy court denying their request to pursue, outside the debtor’s confirmed plan of reorganization, certain post-judgment remedies against debtor. We REVERSE. II. FACTS On March 27, 1997, Appellants Earl and Evelyn Dolven (“Creditors”) obtained a stipulated judgm...
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OPINION A debtor appeals from a declaratory judgment allowing a creditor to allocate a distribution from the debtor’s Chapter 7 estate against the dischargeable portion of the debtor’s obligation to the creditor. The debtor requests that the payment be used to satisfy the nondischargeable portion of the debt. The panel AFFIRMS. I. FACTS Appellant, Karl Gerwer (“Gerwer”), is...
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OPINION This appeal presents the question whether a joint bankruptcy case under 11 U.S.C. § 302(a) may be commenced by amending an existing individual debtor’s petition in a case commenced under 11 U.S.C. § 301. Agreeing with every bankruptcy court that has faced the question, we conclude that a joint case may not be commenced by amending a petition. FACTS Shelly Olson, aka Shel...
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Opinion Petitioner Michael Woo served two full terms as an elected member of the Los Angeles City Council, from July 1985 to June 1993. He seeks reelection for a third term to commence in July 2001. The city clerk advised him that he was ineligible to seek reelection based on a provision of the new city charter limiting elected city officials to only two terms in office. The provision is ...
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City of Simi Valley Police Chief Randy' G. Adams and several police officers (collectively “Defendants”) appeal the district court’s denial of their motion for summary judgment based on qualified immunity. Defendants argue that the district court erred by failing to determine whether, under the clearly established law, the officers reasonably could have believed their conduct in obtaining and exec...
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The pivotal question in this case is whether there is any time limit within which a party to a 28 U.S.C. § 2255 proceeding may file a motion to reconsider a district court’s order resolving the merits of a § 2255 petition when that order contemplates resentencing, but the resentenc-ing has not yet occurred. One might assume that this technical question of § 2255 procedure would have come up bef...
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Julius Sager appeals his conviction and sentence imposed for theft of mail and possession of stolen mail in violation of 18 U.S.C. § 1708. On appeal, Sager asserts numerous claims, including ineffective assistance of counsel, prosecutorial misconduct, erroneous admission of evidence under Federal Rule of Evidence 404(b), error in the court’s instruction to the jury not to “grade” a postal investi...
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224 F.3d 1076 (9th Cir. 2000) LOS ANGELES ALLIANCE FOR SURVIVAL; LOS ANGELES COALITION TO END HUNGER AND HOMELESSNESS; JERRY RUBIN, Plaintiffs-Appellees,v.CITY OF LOS ANGELES; RICHARD J. RIORDAN, Mayor of the City of Los Angeles, in his official capacity; BERNARD PARKS, Chief of Police for the City of Los Angeles, in his official capacity, Defendants-Appellants. No. 97-56742 Off...
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Angelina Merrill, on behalf of her son, Austin Merrill (“Austin”), appeals the district court’s affirmance of the decision of the Commissioner of Social Security (“the Commissioner”) to deny Austin’s application for supplemental security income (“SSI”) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383d. The district court’s holding was based on the decision of...
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227 F.3d 1150 (9th Cir. 2000) RANDALL E. PACE, JR.; HENRY TACUB; WADE HANSON; ROSALINO BALLESTEROS, on behalf of themselves and former and current employees of Honolulu Disposal Service, Inc. and/or Alii Refuse Corporation, Plaintiffs-Appellants,v.HONOLULU DISPOSAL SERVICE, INC.; ALII REFUSE CORPORATION; CLYDE KANESHIRO; LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Local 368, AFL-CIO; The M...
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Defendant Juan Mario Arrieta appeals his conviction for reentering the United States after being deported, in violation of 8 U.S.C. § 1326. Mr. Arrieta claims that the district court erred when it denied his motion to dismiss the indictment because his underlying deportation was invalid. We have jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE. I. BACKGROUND Mr. Arrieta f...
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Opinion I. Introduction Defendant, Linda Catherine Brown, appeals from her conviction for attempted voluntary manslaughter. (Pen. Code, 1 §§ 664, 192, subd. (a).) She was also found to have personally used a firearm in the commission of the offense and inflicted great bodily injury. (§§ 12022.5, subd. (a)(1), 12022.7, subd. (a).) Defendant argues that the trial court improperly: admitted ev...
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Andaranik Bandari, a native of Iran, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision denying his claim for asylum and withholding of deportation. Bandari is a twenty-five-year old Armenian Christian who fled Iran at age nineteen after being tortured for, and convicted of, interfaith dating. We have jurisdiction pursuant to 8 U.S.C. § 1105a (1996), as amended by sectio...
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dissenting: We occasionally hear a case falling so squarely between two conflicting Supreme Court opinions that no matter which way we veer, we are likely to run aground. This is one of those cases. With Bellotti and Austin, the Supreme Court has laid out a difficult course for us to navigate in determining whether restrictions on corporate campaign spending are constitutional. Judge Rymer works h...
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Appeal from D. C. D. C.; and C. A. D. C. Cir. In No. 00-139, direct appeal denied, and case remanded to the United States Court of Appeals for the District of Columbia Circuit. The Clerk is directed to issue the judgment forthwith. In No. 00-261, certiorari before judgment denied. Reported below: No. 00-139, 97 F. Supp. 2d 59....
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C. A. 6th Cir. Certiorari granted. Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, November 13, 2000. Brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, December 13, 2000. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before ...
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C. A. 4th Cir. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, November 13, 2000. Brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, December 13, 2000. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before...
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C. A. D. C. Cir. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, November 13, 2000. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, December 13, 2000. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or befor...
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C. A. 9th Cir. Certiorari granted Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, November 13, 2000. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, December 13, 2000. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 ...
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This case involves the Fair Housing Act, 42 U.S.C. § 3601-3681, and the First Amendment. On November 1, 1993 a housing rights advocacy group filed an administrative complaint with an office of the U.S. Department of Housing and Urban Development (HUD) in San Francisco. The complaint alleged that three neighbors in Berkeley opposed the conversion of a motel into a multi-family housing unit because ...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it *1101is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court....
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*1063 Opinion Plaintiff Ricardo Leyva, a prison inmate, filed this personal injury action against Jim Nielsen, Chairman of the Board of Prison Terms. The trial court sustained a demurrer to the complaint and plaintiff Leyva appeals. Standard of Review “Where a trial court sustains a demurrer without leave to amend, we review such action under the abuse of discretion sta...
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Opinion In this action for breach of contract and negligence, plaintiff Jack Kotlar appeals from the judgment in favor of defendants *1119 after the trial court sustained a demurrer to his third amended complaint without leave to amend further. We reverse the judgment and remand the cause to the trial court with directions. Facts and Proceedings Below In substance, ...
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Opinion Petitioner Steven Vargas pled nolo contendere to three counts of forcible lewd conduct upon a child (Pen. Code, § 288, subd. (b)(1)). Petitioner was sentenced to a total prison term of 24 years. *1130Petitioner filed a petition for writ of habeas corpus. In the petition he contended that his attorney, Brenda Vargas,1 rendered ineffective assistance of counsel and coerced him into acceptin...
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Opinion Penal Code section 654 prohibits multiple punishments for “[a]n act or omission that is punishable in different ways by different provisions of law.”1 However, the courts have long construed this provision not to bar multiple punishments where the act is one of violence against multiple victims (the multiple-victim exception). (People v. Latimer (1993) 5 Cal.4th 1203, 1212 [23 Cal.Rptr.2d ...
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Opinion Frontier Pacific Insurance Company (Frontier), appeals from a motion denying the exoneration of bail and a summary judgment entered against it following the forfeiture of a bail bond in the amount of $18,334. (Pen. Code, §§ 1305, 1306.) 1 On appeal, Frontier contends the trial court lost jurisdiction to declare a forfeiture by failing to do so at the first hearing at which the defen...
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Joan C. Howard (“Howard”) appeals from the district court’s decisions granting dismissal, summary judgment, and judgment as a matter of law (“JMOL”) in favor of defendants Stephen L.W. Hui (“Hui”), Michael C.Y. Wong (“Wong”), Wong’s International (Holdings) Ltd. (“Wong’s International”), and Gatcombe Corp. (“Gatcombe”) in her action pursuant to §§ 10(b) and 20(a) of the Securities Exchange Act ...
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228 F.3d 1043 (9th Cir. 2000) NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF PSYCHOANALYSIS, a Delaware corporation; CEDRUS MONTE; ALLAN D. SOWERS; LIONEL CORBETT, Plaintiffs-Appellants,v.CALIFORNIA BOARD OF PSYCHOLOGY, a state board (Board); BILL LOCKYER, California State Attorney General; STATE OF CALIFORNIA; THOMAS O'CONNOR, the Board's executive officerin his official capacity only; BRUCE EBE...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, 1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth *1070 Circuit, except to the extent adopted by the en banc court. 1 . Judges Trott, Wardlaw...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, 1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. 1 . Judge Fisher was recused. ...
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Opinion —Federation of Hillside and Canyon Associations (FHCA), a homeowners advocacy group, and Coalition Against the Pipeline (CAP), an environmental advocacy group (collectively, Petitioners), challenged the certification by City of Los Angeles and Los Angeles City Council (collectively, the city) of an environmental impact report (EIR) concerning an amendment to the city’s general pla...
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Opinion This is a dispute concerning a closely held family corporation. Plaintiffs and appellants, Ann Stuparich and Candi Tuttleton, appeal from judgment entered in favor of the corporation after the trial court granted summary judgment against them. The sole issue on appeal is whether plaintiffs raised a triable issue of material fact regarding their claim that dissolution was appropria...
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100 Cal.Rptr.2d 556 (2000) 83 Cal.App.4th 1198 The PEOPLE, Plaintiff and Respondent, v. Charles Edward HOAG, Defendant and Appellant. No. C031031. Court of Appeal, Third District. September 28, 2000. Review Denied January 17, 2001.[*] *557 Leupp & Wachob, Thomas A. Leupp, Auburn, and Jeffrey Rue, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant A...
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*1299 Opinion This case calls on us to explore the litigiously fertile subject of the litigation privilege of Civil Code section 47, subdivision (b) (section 47(b)). We are asked to answer the following question: If a defendant’s tortious conduct in disclosing confidential information about a plaintiff was outside the scope of the litigation privilege ab initio, should...
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Opinion The Director of the Department of Motor Vehicles (DMV) appeals from a judgment granting a petition for a writ of mandate. We affirm. Factual and Procedural Background On March 27, 1999, Geoff C. Jacobson was arrested in Rancho Cucamonga for driving while under the influence of alcohol in violation of Vehicle Code section 23152. A sample of his blood was taken and he surrendered his driver’...
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Opinion Defendant and appellant Paul Cohen appeals from the judgment entered against him and in favor of plaintiff and respondent Blima Pick for possession and damages. Appellant contends that the West Hollywood Rent Stabilization Ordinance (hereafter sometimes the ordinance), sections 6413.a.2(c) and 6413.a.3 prohibit respondent from evicting appellant because appellant is a surviving relative w...
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C. A. 11th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Santa Fe Independent School Dist. v. Doe, 530 U. S. 290 (2000)....
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228 F.3d 1092 (9th Cir. 2000) FERRIN COLE; CHRIS NIEMEYER; and JASON NIEMEYER through his Guardian ad Litem Janet Niemeyer, Plaintiffs-Appellants,andJOHN NIEMEYER through his Guardian ad Litem Janet Niemeyer; JANET NIEMEYER, individually and as a Taxpayer; JUSTIN HAGAN through his Guardian ad Litem Connie Hagan; VANESSA RALSTON through her Guardian ad Litem Teresa Ralston; DOE I through her ...
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Appellant Paul D. Shewfelt appeals the district court’s grant of summary judgment for Respondent Margaret M. Pugh, the Commissioner of Corrections for the state of Alaska. We affirm. I. Shewfelt was tried by jury for sexual assault in the first degree in Fort Yukon, Alaska. During its deliberations, the jury asked to rehear the entire testimony of the victim and Shewfelt. Superior Court Judge...
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Scott David Upshaw pleaded guilty to one count of assault resulting in serious bodily injury in violation of 18 U.S.C. §§ 1153 and 113(a)(6) and one count of possession of a firearm with an obliterated serial number in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B). He was convicted pursuant to his guilty plea and sentenced to forty-four months in prison, and thirty-six months of supervised re...
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Leonard Maggio appeals the district court’s judgment of forfeiture against defendant of $109,179 in U.S. currency. Maggio challenges, on Fourth Amendment grounds, the actions of police officers which ultimately led to the discovery of the currency. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I. On July 5, 1984, after an individual named Robert Kalatschan was advised by motel...
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Opinion In this opinion, we consider whether the federal Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. §1001 et seq.) 1 preempts a common law cause of action by an ERISA fiduciary against an ERISA plan beneficiary for breach of an agreement settling an earlier federal court lawsuit concerning the reimbursement of medical benefits paid by the fiduciary. We c...
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*1383Opinion Introduction Appellants Stanley Shapiro and Jeffrey R. Matsen appeal from a judgment denying appellants attorney’s fees on the cross-complaint by respondents Wilshire-Doheny Associates, Ltd., and Daishin U.S.A. Co., Ltd. We reverse that portion of the judgment.1 Factual and Procedural Background Daishin Kyouritsu, Ltd., is a Japanese company (hereinafter Daishin Japan). In 1989, it i...
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Opinion This appeal concerns whether plaintiff and appellant, Mary Welch, has standing as a putative spouse to prosecute a wrongful death action against defendants and respondents, the State of California and the California Department of Transportation. Appellant alleged she qualified as a putative spouse because she believed, in good faith, that she and the decedent were validly married....
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229 F.3d 1210 (9th Cir. 2000) ROBERTA BUGENIG, Plaintiff-Appellant,v.HOOPA VALLEY TRIBE; THE HOOPA VALLEY TRIBAL COUNCIL; THE TRIBAL COURT OF THE HOOPA VALLEY TRIBAL RESERVATION; BYRON NELSON, JR., Honorable Judge of the Hoopa Valley Tribal Court; MERV GEORGE, Chairman of the Hoopa Valley Tribal Council, Defendants-Appellees. No. 99-15654 U.S. Court of Appeals for the Ninth Circuit...
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This appeal probes the legal question whether a collective bargaining agreement covers certain employees, and the fact question whether the trustees of an ERISA employee benefits plan had a legitimate purpose to audit certain payroll records of the Appellant employer’s operations, as the trustees claim, or were being used by a trade union, as the employer claims, to increase union membership by es...
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228 F.3d 972 (9th Cir. 2000) SNAKE RIVER VALLEY ELECTRIC ASSOCIATION, Plaintiff-Appellant,v.PACIFICORP, (including Utah Power and Light Company, a Division), Defendant-Appellee,andSTATE OF IDAHO, Defendant-intervenor Appellee. No. 99-35204 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 3, 2000Opinion Filed October 3, 2000 1 NOTE: OPIN...
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WJB, a juvenile Native American, appeals the order of the district court transferring him to adult status under the mandatory transfer provision of 18 U.S.C. § 5032. Appellant contends that the motion to transfer him to adult status was defective, that the crime involved in his prior juvenile adjudication cannot serve as a predicate for mandatory transfer, and that the mandatory transfer provisio...
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Opinion by Judge D.W. NELSON; Dissent by Judge TROTT. Juvenile RRA-A appeals her conviction for juvenile delinquency, in violation of 18 U.S.C. § 5032, and for conspiring to knowingly and intentionally import and attempt to import marijuana, in violation of 21 U.S.C. §§ 952, 960, 963. She contends that the district court made three errors: (1) failing to suppress the fruits of a war-rantless arre...
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Aurelio Garcia-Martinez appeals his conviction, upon a conditional guilty plea, on one count of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. Garcia-Martinez collaterally attacks the prior deportation order upon which his conviction rested, contending that his expedited administrative removal for being an aggravated felon violated the Due Process Clause of t...
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Raymond Lawrence Mondragon appeals the sentence imposed following his guilty plea pursuant to a plea agreement. The sole issue is whether the sentence should be vacated because the government breached the plea agreement. We have jurisdiction of this appeal pursuant to 28 U.S.C. § 1291, and we remand for resen-tencing because the government breached the plea agreement. The pertinent part of the ...
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After a domestic argument, Akanni Ken-dalla, a detention enforcement officer with *947 the Immigration and Naturalization Service (INS), shot and seriously injured Miriam Vickers, another INS employee and his former wife, with his Service-issued revolver. Ms. Vickers filed this action under the Federal Tort Claims Act, (FTCA), 28 U.S.C. § 2671 et seq., claiming that the United Stat...
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Opinion Defendants Russ Archie Tye and Lewis Anthony Greene were jointly charged with attempted murder, false imprisonment, and cruelty to an animal. The two men were tried together, and the jury found Greene *1400 guilty as charged. The jury found Tye guilty only of false imprisonment, acquitting him of attempted murder and animal cruelty. 2 Greene was sentenced to life imprisonment with t...
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*1437Opinion In this proceeding to probate the will of Myrtle Louise Powell, the trial court entered judgment providing that the decedent’s share of community property shall remain in a revocable trust created by the decedent and her husband. Husband appeals claiming he revoked the trust after the decedent’s death and is therefore entitled to the entire estate. He further contends that, in any ev...
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Opinion by Judge FLETCHER; RONALD M. GOULD, Circuit Judge, with whom Circuit Judge THOMAS joins, Concurring; O’SCANNLAIN, Circuit Judge, with whom Circuit Judges TROTT and KLEINFELD join, Dissenting; TROTT, Circuit Judge, with whom Circuit Judges O’SCANNLAIN and KLEINFELD join, Dissenting. Robert Barnett brought suit under the Americans with Disabilities Act (ADA) and he appeals the district cour...
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We must decide whether a bankruptcy court may order substantive consolidation of two non-debtor corporations, World Plus, Inc. and Atlantic Pacific Funding Corporation, with the bankruptcy estate of Chapter 7 debtor Raejean Bonham nunc pro tunc as of the filing date of the involuntary Chapter 7 petition. We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we reverse the decision of the distri...
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Wallace Archdale, a Native American, appeals his conviction and sentence for two counts involving sexual activity with a minor on the Fort Peck Indian Reservation. *864 BACKGROUND Appellant Archdale lived within the Fort Peck Indian Reservation with Grace Dev-ereaux, their four sons, and her daughters J.K. 2 and Timberly Devereaux. During November 1997, Grace Devereaux left home for sev...
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Petitioner Bruce Wayne Morris was sentenced to death in California for the 1985 murder of Rickey Van Zandt. He appeals the district court’s denial, on summary judgment, of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. EARLIER PROCEEDINGS At the close of the guilt phase of the trial, on June 22, 1987, the jury found Petitioner guilty of first-degree murder and robbery and fu...
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229 F.3d 771 (9th Cir. 2000) SE JONG NOH, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70982 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted April 5, 2000Filed October 5, 2000 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 240 F.3d AT 1156. ...
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Carol Thomas appeals the district court’s determination that Reliance Standard Life Insurance Company (“Reliance”) did not abuse its discretion in denying her application for long-term disability benefits.1 On appeal, Thomas’ principal arguments are that the district court applied an incorrect standard of review — -abuse of discretion, rather than de novo — and that she had a right to a trial by j...
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100 Cal.Rptr.2d 352 (2000) 24 Cal.4th 317 8 P.3d 1089 John GUZ, Plaintiff and Appellant, v. BECHTEL NATIONAL, INC., et al., Defendants and Respondents. No. S062201. Supreme Court of California. October 5, 2000. *357 Bianco & Murphy, Stephen M. Murphy, San Francisco; Quackenbush & Quackenbush and William C. Quackenbush, San Mateo, for Plaintiff and Appellant. Thomas W. Osborne and Melvin R...
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This case involves an award of attorneys’ fees to defendants. Plaintiffs Kona Enterprises, Inc. (“Kona”), Tach One, Balanced Value Fund (“BVF”), Wayne M. Rogers (“Rogers”), and Jack Gertino (“Gertino”) (collectively “plaintiffs”) appeal the district court’s order granting defen*880dants’1 Fed.R.Civ.P. 54(d) motion for attorneys’ fees pursuant to Haw.Rev.Stat. § 607-14.2 Plaintiffs challenge the di...
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Carole O’Loghlin appeals the dismissal of her claim against defendant Orange County under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. The district court dismissed O’Loghlin’s *873 complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), holding that her claim, in its entirety, was discharged in the County’s bankruptcy pro...
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C. A. 2d Cir. Certiorari granted....
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C. A. 9th Cir. Certiorari granted limited to the following question: “What is the standard of review of a trial court’s ruling on a challenge to the constitutionality of a punitive damage award?”...
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C. A. 9th Cir. Motion of Washington Legal Foundation et al. for leave to file a brief as amici curiae granted. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, case consolidated with No. 99-7791, Zadvydas v. Davis et al., immediately supra, and a total of one hour allotted for oral argument....
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Charles Holmes appeals his conviction for armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Holmes contends that the district court erred by refusing his request for an informant credibility jury instruction, by allowing a lay witness to identify him from bank surveillance camera photographs, and by denying his motion for a new trial. Holmes also argues that he was denied due proces...
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Opinion NORCAL Mutual Insurance Company (NORCAL) appeals from the trial court’s denial of its petition to compel arbitration of a dispute with respondent Nancy Newton. NORCAL maintains the petition should have been granted because respondent was required to arbitrate by the language of the medical malpractice insurance policy it issued to respondent’s late husband, by respondent’s accepta...
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Opinion Introduction Shortly after plaintiff Nosrat Khajavi (Khajavi), an anesthesiologist, and defendant Robert Del Pero, a surgeon, engaged in an altercation over the wisdom of proceeding with a particular surgery, defendant Feather River Anesthesia Medical Group (Feather River) terminated Khajavi’s employment. 1 At trial, the court nonsuited Khajavi’s claims that defend...
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229 F.3d 790 (9th Cir. 2000) In Re: THE EXXON VALDEZICICLE SEAFOODS, INC.; SEVEN SEAS CORPORATION; OCEAN BEAUTY SEAFOODS, INC.; OCEAN BEAUTY ALASKA, INC.; WARDS COVE PACKING COMPANY, INC.; ALASKA BOAT COMPANY; NORTH PACIFIC PROCESSORS; TRIDENT SEAFOODS CORPORATION; NORTH COAST SEAFOOD PROCESSORS, INC.; ADF, INC., dba Aleutian Dragon Fisheries, Plaintiffs-Appellants,andEXXON SHIPPING COMPAN...
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Defendant Tatsuya Amano, a Japanese national, challenges on two bases the district court’s denial of his motion to suppress certain, evidence: (1) that, at the time of his arrest, law enforcement officers failed to notify him of his right under the Consular Convention and Protocol between the United States and Japan (Japan Convention) to contact the Japanese consulate, and (2) that his waiver of ...
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David Furrow appeals his conviction by conditional guilty plea to one count of manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1). Furrow reserved the right to appeal the district court’s denial of his motion to suppress evidence found in two preliminary warrantless searches and a third search conducted after police obtained a warrant based on drug 'evidence discovered in the second se...
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Renee Hooper and Michelle Ralph (“Claimants”) are wives of two men who pleaded guilty to federal drug trafficking offenses. Their husbands’ sentences included forfeiture of various assets, including the proceeds of drug sales and property purchased with those proceeds. See 21 U.S.C. § 853(a)(1). Claimants contested the criminal forfeiture, contending that as spouses they innocently acquired a f...
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100 Cal.Rptr.2d 585 (2000) 84 Cal.App.4th 112 Jim RUSCIGNO, Plaintiff and Appellant, v. AMERICAN NATIONAL CAN COMPANY, INC., Defendant and Respondent. No. B136917. Court of Appeal, Second District, Division Four. October 11, 2000. *586 Hamrick & Evans, A. Raymond Hamrick, III, Universal City, and Raymond C. Dion, for Plaintiff and Appellant. Thelen, Reid & Priest, David L. Bacon and Remy ...
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*102 Opinion Johnell P. (mother) and Adolph B. (father), parents of now three-year-old twin sons, DeJohn and Edward B., appeal from a judgment under Welfare and Institutions Code section 366.26 selecting adoption as the minors’ permanent plan and terminating the parents’ rights. (All further statutory references are to the Welfare and Institutions Code; the § 366.26 hearing is de...
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Opinion Plaintiff Ivy Trucking, Inc. (Ivy), appeals from a judgment rendered in favor of defendants Heritage Engineering Construction, Inc. (Heritage), Vigilant Insurance Company (Vigilant), and Ulico Casualty Company (Ulico). Ivy was hired by a subcontractor, Creston Brandon Corporation (Creston Brandon), to haul fill dirt to a Caltrans (Department of Transportation) freeway project...
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Opinion Plaintiff Thomas J. O’Keefe sued defendants for abuse of process and title disparagement after defendants initiated collection efforts on a judgment on appeal. That judgment was against O’Keefe personally and arose out of an earlier action he brought for attorney fees under Civil Code section 1717. The superior court sustained defendants’ demurrers without leave to amend, reasoning an und...
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Opinion 1. Introduction Mercury Casualty Company’s (Mercury) automobile liability insurance policy contains a provision, “Condition 23,” that limits coverage to the statutorily required minimums for persons using the car with the named insured’s permission. In this declaratory relief action, the trial court found Condition 23 inconspicuous as a matter of law. On appeal, we ag...
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Friedman Enterprises (“FE”) appeals the district court’s decision affirming the bankruptcy court’s order denying FE’s request for $916,827 in contingency fees pursuant to FE’s employment agreement with Chapter 11 Debtor B.U.M. International, Inc. Because the bankruptcy court specifically reserved the right to approve all fees and costs of FE when it approved FE’s employment, the fee structure h...
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California state prisoner Demetrie La-don Mayfield appeals the district court’s denial of his habeas petition brought pursuant to 28 U.S.C. § 2254. Mayfield’s petition challenges his 1983 convictions in San Bernardino County on two counts of first degree murder and his subsequent death sentence. In his petition, Mayfield argues that he was denied effective assistance of counsel at both the guilt ...
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Diana Johnson was found guilty by a jury of receiving “stolen Government property,” in violation of 18 U.S.C. § 641, by receiving money embezzled from the Agricultural Stabilization Conservation Service (“ASCS”), 1 a branch of the United States Department of Agriculture (“USDA”). The question before us today is whether the evidence before the jury was sufficient to support a finding that the mo...
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Opinion Does the Political Reform Act of 1974 preclude Oakland Mayor Jerry Brown from participating in decisions concerning a redevelopment project near property he owns? 1 The Oakland City Attorney requested *140 an opinion on this question from the Fair Political Practices Commission (FPPC). After a public hearing, the FPPC concluded the mayor’s participation in the project was not “legal...
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Opinion Plaintiff Life Savings Bank (Life) appeals from an order of the trial court denying its request for relief from mistake, inadvertence *176 and/or excusable neglect under Code of Civil Procedure section 473. 1 Life missed the filing deadline provided in section 726, subdivision (b), for its application for a hearing to determine the fair value of real proper...
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C. A. 6th Cir. Certiorari granted....
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Justice STEVENS and Justice O’CON-NOR took no part in the consideration or decision of this petition....
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Opinion I Factual Background Plaintiffs and appellants Judy and William Hassoldt (the Hassoldts) own a piece of property in Redondo Beach, on which they operate a preschool called Der Kindergarden. The Hassoldts established a trust (the Yankee Trust), which owns the land and leases it to Der Kindergarden, Inc., a corporation. Neither Der Kindergarden, Inc., nor the Yankee Trust ...
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229 F.3d 1226 (9th Cir. 2000) RICHARD J. PACIULAN; WILLIAM A. KRUSE, Plaintiffs-Appellants,v.RONALD M. GEORGE, Chief Justice of the California Supreme Court; STANLEY MOSK; JOYCE L. KENNARD; MARVIN R. BAXTER; KATHRYN MICKLE WERDEGAR; JANICE R. WRONG; MING W. CHIN; JUDY JOHNSON; JEROME BRAUN, Defendants-Appellees. No. 99-15687 U.S. Court of Appeals for the Ninth Circuit Argued and Su...
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Rasaq Dipo Salaam petitions for review of the decision of a divided Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal. We grant petition for review. I. Background The following information is drawn from Petitioner’s application for asylum and testimony before the Immigration Judge (IJ). Rasaq Dipo Salaam, a 23-year-old Nigerian citize...
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Unbeknownst to Lamar Williams, his girlfriend Tarehanda Cunningham surreptitiously tape recorded him implicating himself and Defendant Anthony Boone in an armed robbery. Over Boone’s hearsay and Confrontation Clause objections, Williams’s out-of-court statements were received in evidence against Boone as statements against interest. At the time the recording was made, Williams was confiding in hi...
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We must decide whether Rule 32(e) of the Federal Rules of Criminal Procedure requires a defendant seeking to withdraw a guilty plea on account of newly-discovered exculpatory evidence to show a “fair and just” reason for withdrawal, or whether the higher standard of “manifest injustice” must be met. Juan Gabriel Ruiz (“Ruiz”) appeals the entry of judgment following his guilty plea on charges of...
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The issue before us is whether an order appointing a “lead plaintiff” in an on-going securities fraud class action is a “collateral order” from which an interlocutory appeal can be taken. We hold that it is not, and therefore dismiss this appeal for lack of jurisdiction. I. Background Fourteen separate civil actions were commenced in the federal courts of New York and California against Motorcar P...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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101 Cal. Rptr. 2d 199 (2000) 11 P.3d 955 Robert RAMIREZ, III, Respondent, v. CIRCUIT CITY STORES, INCORPORATED, Appellant. No. S085000. Supreme Court of California. October 18, 2000. Pursuant to rule 29.4(c), California Rules of Court, the above-entitled review is DISMISSED and cause is remanded to the Court of Appeal, First Appellate District, Division Three. GEORGE, C.J., MOSK, J., KENNARD, J.,...
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Opinion Santa Margarita Area Residents Together, an association; Kenneth Haggard; and Otto Schmidt appeal the judgment denying their petition for writ of mandate to set aside a development agreement between defendant San Luis Obispo County (County) and real party in interest Santa Margarita Limited. To develop its property, Santa Margarita Limited needs to be certain that the law governin...
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Opinion Petitioner, Save Open Space Santa Monica Mountains (SOS), sought attorney fees under California’s “private attorney general” statue. The lawsuit concerned proposed land development in an area known as Stokes Canyon. To meet petitioner’s claim for an award of “private attorney general” attorney fees, real parties in interest sought to discover the financial obligations and contribu...
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Opinion Frances Harustak and Richard Heinrich appeal from a trial court ruling that their petition contesting an amendment *211 to a trast was untimely. Appellants argue their action is not time-barred because the trustee’s notice of appellants’ right to contest the trust did not comply with Probate Code section 16061.7, subdivision (g), 1 which requires a notice p...
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229 F.3d 1249 (9th Cir. 2000) ROBERT POWERS; PETER J. FRANKLIN; SEA BREEZE PRINTING, INC.; GARVIN D. STANISLAWSKI; STARLOG GROUP, INC.AND STARLOG GROUP, INC. DEFINED PENSION PLAN, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; HOWARD SOBEL; RICHARD STRAUSZ; RICHARD W. HALSEY, Plaintiffs-Appellees,WILFRED GEORGE, Class Member/Objector-Appellant,v.PAUL EICHEN; ROBERT JOHNSON; KENNE...
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Jimmie Ray Derington appeals his conviction of the theft of government property in violation of 18 U.S.C. § 641 and of the depredation of government property in violation of 18 U.S.C. § 1361. We affirm the judgment of the district court. FACTS In July 1993 Eva Carver contracted with Derington to log her property, which consisted of three parcels within the Sequoia National Forest. Pursuant to...
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ORDER Judges Politz, Reinhardt, and Hawkins voted to deny the petition for rehearing. Judges Reinhardt and Hawkins voted to deny the petition for rehearing en banc and Judge Politz recommended denial of the petition for rehearing en banc. A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the active judges of the court failed to vote f...
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Opinion Defendant and appellant Bennie Lee Moloy appeals the judgment entered after conviction following plea of guilty to conspiracy to knowingly present a false or fraudulent claim and knowing presentation of a false or fraudulent claim. (Pen. Code, §§ 182, subd. (a)(1), 550, subd. (a).)1 The trial court sentenced Moloy to a term of four years in state prison. We affirm. Factual and Procedural B...
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ORDER The opinion filed June 5, 2000, and reported at 214 F.3d 1082, is withdrawn and superseded by the attached opinion. The petition for rehearing is otherwise denied. The full court was advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc, but the matter failed to receive a majority of the votes of the nonrecused ac...
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Debtor Jerome Berg (“Berg”) appeals from the decision of the Ninth Circuit Bankruptcy Appellate Panel (“BAP” or “the Panel”) affirming a decision of the bankruptcy court. The Panel held that an award of attorneys’ fees imposed as a sanction for frivolous conduct in litigation is not subject to the automatic stay imposed by 11 U.S.C. § 362(a) when a debtor files for bankruptcy. The Panel held that...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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Opinion In this writ of mandate proceeding, we must determine whether Family Code section 3011, subdivision (d) authorizes a family law court to compel a parent to submit to drug testing in a child custody proceeding. We conclude that the Family Code provision, devoid of any substantive or procedural safeguards, does not authorize court-ordered drug testing. 1 Facts Pete...
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Alexander Hay appeals his conviction following a jury trial for possession and distribution of child pornography by means of a computer. Hay contends that the search of his entire computer system based on a seven-minute, six-month old transmission of 19 images of child pornography was unreasonable; he faults the district court for allowing the jury to view three exhibits containing child pornogra...
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Opinion A jury found defendant Robert Earl Olmsted guilty of various crimes relating to his attempts to murder two peace officers, including possession of “ammunition which contains or consists of any fléchette dart. . . .” (Pen. Code, § 12020, subd. (a)(1)—count seven.)1 The court sentenced defendant to an aggregate term of 231 years to life in state prison. Defendant received a consecutive term ...
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229 F.3d 837 (9th Cir. 2000) JOSEPH R. EVANNS, as an individual and on behalf of all those similarly situated, Plaintiff-Appellant,v.AT&T CORPORATION, a corporation; MCI CORPORATION, a corporation; PACIFIC BELL, INC., a corporation; MCI TELECOMMUNICATIONS CORPORATION, erroneously sued as MCI Corporation; MCI COMMUNICATIONS CORPORATION, erroneously sued as MCI corporation, Defendants-Appe...
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229 F.3d 831 (9th Cir. 2000) JOSEPH KATZ; ROGER MOORE, on behalf of themselves and others similarly situated, Plaintiffs-Appellants,v.THE REGENTS OF THE UNIVERSITY OF CALIFORNIA; LAWRENCE LIVERMORE NATIONAL LABORATORY; ERNEST ORLANDO LAWRENCE BERKELEY NATIONAL LABORATORY, Defendants-Appellees. No. 99-15384 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted June 15, 2...
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The main question that we must answer in this appeal is whether a mother is in a “position of public or private trust” within the meaning of United States Sentencing Guideline (“U.S.S.G.”) § 3B1.3, which provides an upward adjustment for abuse of a position of trust in the commission of a crime. We conclude that the answer is “no.” Consequently, we vacate Defendant Dorothy Willard’s sentence and ...
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Opinion Welfare and Institutions Code section 8102 authorizes the seizure and possible forfeiture of weapons belonging to persons detained for examination because of their mental condition. 1 (§ 5150.) Here we conclude section 8102 is constitutional. 2 We also conclude that in a section 8102 hearing, testimony of a psychiatrist who examines a person detained pursua...
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Opinion Plaintiffs Patrick F. and Arlene Sheehy appeal from a judgment on the pleadings in favor of defendant Franchise Tax Board (Board) in an action alleging that the Board assessed usurious interest on unpaid taxes. Because the penalty assessment for late payment of taxes is neither an assessment to compensate the state for a loan nor for a forbearance, we affirm the judgment. Fac...
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The Estate of Hilda Ashman 1 appeals the tax court’s decision that the Commissioner of Internal Revenue properly held Ashman to the duty of consistency and, therefore, properly assessed a deficiency for Ashman’s 1993 tax year. We affirm. BACKGROUND On or before December 19, 1990, Ash-man received a distribution of $725,502 from a qualified defined benefit pension plan. ...
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Defendant Gary Hancock was convicted of violating 18 U.S.C. § 922(g)(9), which prohibits persons who have been convicted of “misdemeanor crime[s] of domestic violence” from possessing firearms. He appeals the district court’s denial of his motion to dismiss the indictment on due process and equal protection grounds and the district court’s refusal, at trial, to give two of his requested jury inst...
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Defendant Jess A. Rodrigues, former owner and Chairman of the Board of Sar-atoga Savings and Loan in California, stands convicted of ten criminal counts arising from his participation in four real estate transactions with Saratoga between 1984 and 1988. At sentencing, the district court applied the Victim and Witness Protection Act (VWPA), 18 U.S.C. §§ 3663, 3664, and ordered Rodrigues to pay r...
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231 F.3d 546 (9th Cir. 2000) WYLER SUMMIT PARTNERSHIP, A PARTNERSHIP, PLAINTIFF-APPELLANT,v.TURNER BROADCASTING SYSTEM, INC., A GEORGIA CORPORATION; TURNER ENTERTAINMENT CO., A GEORGIA CORPORATION, DEFENDANTS-APPELLEES. No. 99-15773 U.S. Court of Appeals, Ninth Circuit Argued and Submitted October 3, 2000--San Francisco, CaliforniaOctober 26, 2000 1 NOTE: SEE AMEND...
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Opinion Joy Oriola appeals from an order dismissing her application for a restraining order against Adam Thaler for lack of jurisdiction under the *400 Domestic Violence Prevention Act (DVPA or the Act) (Fam. Code, § 6200 et seq.). The Act extends protection to individuals who are or have been in certain relationships with the perpetrator of defined types of abuse, including ...
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*321 Opinion Jose Ramon Garcia, a former guard at Pelican Bay State Prison, appeals from his conviction for conspiring to assault and for assault upon an inmate who was targeted for attack because he was serving time for child molestation. (Pen. Code, §§ 182 & 245, subd. (a)(1).) 1 For these crimes and for two counts of possessing alcohol in the prison (§ 4573.8) defen...
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Opinion Kmart Corporation (Kmart) timely appeals from a final judgment, entered after a jury trial, by which Kmart was held liable for negligence, battery, and negligent infliction of emotional distress, and ordered to pay compensatory damages totaling $3.8 million to respondent George Heiner, a dentist who was injured in an altercation with a Kmart security guard. 1 Kmart cont...
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Opinion The trial court denied appellant Juan Miguel Cisneros admission to the deferred entry of judgment program in which first time drug offenders are diverted to a rehabilitation program with judgment deferred and criminal charges dismissed upon successful completion of the program. (Pen. Code, § 1000 et seq. [all further statutory references are to this code except as noted].) The pro...
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Opinion Introduction Defendant and appellant Cheryl D. appeals from an order of the juvenile court denying an evidentiary hearing on her petition filed pursuant to Welfare and Institutions Code section 388,1 by which appellant sought to modify the juvenile court’s placement order regarding her daughters, Aljamie D. and Ashara D. She also appeals from an order appointing the children’s maternal au...
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Opinion A jury convicted Donald James Bohana of the second degree murder of Delores Velma Jackson. (Pen. Code, §§ 187, 189.) 1 He appeals contending there is insufficient evidence that he acted with express or implied malice, the victim’s death was excusable as “committed by accident *364 and misfortune” (§ 195), and that the trial court erred in failing to instruct the jury sua sponte on e...
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Opinion Plaintiffs Larry Wells and Doreen Wells (the Wellses) filed the instant action alleging that defendant Campbell Moving & Storage (Campbell) negligently mishandled and/or lost their personal property. Reliance Insurance Company (Reliance) was the insurer for Campbell. Petitioners Reliance and Claimguard, Inc., filed a petition for a writ of mandate directing respondent Superior Cou...
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Opinion Defendant Arnaudo Brothers, a partnership, was a bona fide purchaser of real property. Plaintiffs Louis Schiavon et al. held a security interest in the property, evidenced by a deed of trust. Prior to the purchase by defendant, however, the trustee under the deed of trust reconveyed plaintiffs’ security interest upon a forged request for reconveyance. Plaintiffs claim that the rec...
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Petitioner Saksit Nakaranurack is a Thai citizen who came to the United States at the age of six. In 1988, he was convicted of a drug offense. The INS initiated deportation proceedings against him, and in 1990 an Immigration Judge denied discretionary waiver of deportation pursuant to INA § 212(c). The Board of Immigration Appeals (“BIA”) affirmed in 1993. At the time, Nakaranurack was entitled...
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Opinion by Judge BRUNETTI; Partial Concurrence and Partial. Dissent by Judge McKEOWN. This appeal raises the issue of whether the Court of International Trade (“CIT”) has exclusive jurisdiction to entertain claims brought by an importer challenging the legality of forfeiture and penalty assessment actions taken by the United States Customs Service (“Customs”). Nippon Miniature Bearing Cor...
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230 F.3d 1113 (9th Cir. 2000) EARL OLD PERSON; CAROL JUNEAU; BILL WHITEHEAD; HERMAN RED ELK; RONALD WILLIAMS; MARGARET CAMPBELL; ANDREA MAIN; DONALD MEYERS; JOSEPH MACDONALD; JEANNINE PADILLA, Plaintiffs-Appellants,v.MIKE COONEY, Secretary of State for the State of Montana; MARC RACICOT, Governor for the State of Montana, Defendants-Appellees. No. 98-361 U.S. Court of Appeals for the...
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Opinion The trial court compelled arbitration of this wrongful termination action, which was then arbitrated and decided in favor of the employer. The employer’s petition to confirm the arbitrator’s award was granted. The employee appeals, claiming she never agreed to arbitrate and, in the alternative, that the arbitration agreement is unfair, unconscionable and unenforceable. We affirm. ...
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Opinion This is a tort action in which, allegedly, an emergency room doctor’s negligence was aggravated by the subsequent negligence of the patient’s personal physician. By the time of trial, the only parties were the patient (the plaintiff) and the emergency room doctor (the defendant). The patient claims (and the trial court agreed) that evidence of the personal physician’s subsequent negligenc...
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C. A. 3d Cir. Certiorari granted, judgment vacated, and *953case remanded for further consideration in light of the position asserted by the Solicitor General in his brief for the United States, as amicus curiae, filed September 20, 2000, and the Copyright Office's July 5, 2000, Statement of Policy, 65 Fed. Reg. 41508....
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Plaintiff-appellant Leda Anderson appeals from the district court’s order dismissing her action for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim. Anderson filed a complaint seeking to appeal an order of the Interior Board of Indian Appeals (“IBIA”) that affirmed-in-part an administrative law judge’s (“ALJ”) denial of her motion for summary judgment in...
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Opinion by Judge GRABER; Partial Concurrence and Partial Dissent by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge GOULD; Dissent by Judge TASHIMA. Plaintiffs are a class of Mexican-American, Asian-American, and African-American educators and would-be educator...
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230 F.3d 1155 (9th Cir. 2000) SUE CALDWELL, as personal representative of Brian Caldwell, deceased; SEIICHI HANAMI; MICRONESIAN AVIATION CORPORATION, dba MACAW HELICOPTER COMPANY, Plaintiffs-Appellants,v.ENSTROM HELICOPTER CORPORATION, Defendant-Appellant. No. 99-15746 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 9, 2000Filed October 30, 2000 ...
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Plaintiff organizations Ecological Rights Foundation (“ERF”) and Mateel Environmental Justice Foundation (“Mateel”) brought this lawsuit against Pacific Lumber Company alleging various violations of the Federal Water Pollution Control Act of 1972, better known as the Clean Water Act, see 33 U.S.C. § 1251 et seq., at Pacific Lumber’s Yager Camp and Carlotta mill operations ...
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OPINION Appellant Elsie C. Stine appeals the bankruptcy court’s order denying attorney’s fees under 11 U.S.C. § 523(d) after the bankruptcy court had granted Stine judgment on the pleadings. 2 In denying Stine’s motion for attorney’s fees, the bankruptcy court held that John F. Flynn’s complaint was substantially justified (had “some substantial basis”), and that special ci...
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*465 Opinion Introduction In this application for a writ of supersedeas, Robert Hahn seeks to stay enforcement of the portion of the judgment entered in favor of defendant Specialty Restaurants Corporation for Code of Civil Procedure section 1032 1 costs, contending that enforcement of those costs is automatically stayed pending resolution of the appeal in this matter. Hahn contends that ...
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In this appeal, we must determine what forms of treatment a woman recovering from breast cancer would have understood her health insurance plan to cover if her cancer reappeared — specifically, whether it would cover high dose chemotherapy with peripheral stem cell rescue (“HDC/PSCR”). Does NevadaCare’s Plan, which includes coverage for chemotherapy and blood transfusions, but which, under an e...
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Sean Howell was convicted of possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) after a jury-trial and was sentenced to 120 months in prison. He appeals his conviction and sentence, arguing that the district court erred by: (1) failing to hold an evidentiary hearing before admitting evidence of Howell’s confession; (2) refusing to grant a mistrial after the gove...
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Defendant Michael Patterson pled guilty to a one count indictment charging him with escaping from custody in violation of 18 U.S.C. § 751(a). The indictment alleged that Patterson was confined in a correctional center “by virtue of a conviction” for a specified felony. In point of fact, at the time of the escape, Patterson was in custody following revocation of the supervised release imposed as...
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Opinion Introduction Bismark Ortega appeals from a judgment of the San Mateo County Superior Court following a jury trial. He was convicted of attempted voluntary manslaughter, assault with a firearm, and finding true various related enhancements. He argues that the trial court abused its discretion at sentencing in refusing to dismiss one of the convictions pursuant to Penal Code ...
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*475 Opinion Introduction Plaintiff Eugene Quinn applied to be hired as a Los Angeles City police officer. He failed the medical exam because of a significant hearing impairment. However, due to a clerical error, he was notified to report for further tests. He passed those tests, was admitted to and graduated from the Police Academy, and was assigned to patrol duty. While a ...
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Opinion Following a contested jurisdictional hearing, the juvenile court found that Allen N., a minor and ward of the court based upon previously sustained petitions, committed felony assault (Pen. Code, § 245, subd. (a)(1)) and great bodily injury during the commission of that offense (Pen. Code, § 12022.7). 1 The minor was committed to the California Youth Authority (CYA) f...
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Opinion Plaintiff Charles Alesi appeals a judgment denying his petition for a writ of mandate (Code Civ. Proc., § 1094.5) to compel defendant Board of Retirement of the San Diego City Employees’ Retirement System (the Board) to set aside its decision denying him industrial disability retirement benefits. Alesi applied for a disability retirement after he became incapacitated by a knee injury. T...
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Opinion I. Introduction Tie votes mean different things in different contexts. The fictitious spelunkers in Lon Fuller’s famous law review article, finding themselves trapped in a cave and resorting to cannibalism to stay alive for the requisite amount of time until a rescue party reached them, were sentenced to death for murder when the mythical five-person Supreme Court of Newgarth, reviewi...
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Chung Lo, a San Francisco real estate broker, appeals her conviction for eight counts of mail fraud in violation of 18 U.S.C. § 1341 and for related offenses. Lo maintains, as to some of the mail fraud counts, that the government failed to present sufficient evidence to prove that a mailing occurred and, as to others, that the government failed to prove sufficiently that the mailings were in furt...
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231 F.3d 484 (9th Cir. 2000) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.SEALED 1, LETTER OF REQUEST FOR LEGAL ASSISTANCE FROM THE DEPUTY PROSECUTOR GENERAL OF THE RUSSIAN FEDERATION, PURSUANT TO AN AGREEMENT BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE RUSSIAN FEDERATION ON COOPERATION IN CRIMINAL LAW MATTERS IN THE CRIMINAL MATTER OF, DEFENDANT-APPELLAN...
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ORDER On remand from the Supreme Court, we further remand this First Amendment commercial speech case to the district court for further development of the record. I This appeal arises from the California state legislature’s amendment of California Government Code § 6254(f), a provision governing the dissemination of arrestees’ names and addresses. The legislature’s July 1, 1996, amendment r...
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Opinion I. Introduction Defendant and appellant, Parichan, Renberg, Grossman & Harvey (Parichan) was sued for legal malpractice by plaintiff and appellant, California State Automobile Association Inter-Insurance Bureau (CSAA). A jury awarded CSAA $920,849.05 in damages. Parichan now argues that the trial court should have, but did not, instruct the jury to consider CSAA’s legal malpr...
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101 Cal.Rptr.2d 135 (2000) 84 Cal.App.4th 641 The PEOPLE, Plaintiff and Respondent, v. Joshua HARVEST, Defendant and Appellant. No. A087494. Court of Appeal, First District, Division Four. October 31, 2000. Review Denied February 28, 2001.[*] *136 Scott A. Sugarman, San Francisco, under appointment by the Court of Appeal, Attorney for Appellant. Bill Lockyer, Attorney General, David P. Druliner, ...
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Opinion Introduction Plaintiff Sessions Payroll Management, Inc. (Sessions) did not sign and was not a party to a written contract between defendant general contractor Noble Construction Company, Inc. (Noble) and David Mackey Drywall (Mackey). The Noble-Mackey contract provided that the prevailing party in an action to enforce the contract would receive attorney fees. After sustainin...
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Opinion In this child custody case, appellant James P. Lennane appeals from a series of orders made in the family court. In case No. C030662, Lennane appeals from a pretrial order made on July 22, 1998, limiting him to one hour a day of visitation with the newborn child of Lennane and respondent Judith Lester. In case No. C031941, Lennane appeals from a pretrial order made on November 13,...
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Opinion Licensed pawnbroker Denny Malish filed this action against the City of San Diego (the City) seeking a declaratory judgment that certain city ordinances regulating pawnbrokers are preempted by state law. Malish appeals from a judgment denying his motion for summary judgment and dismissing the action. We conclude certain provisions in the ordinances that Malish challenges are preempted and ...
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*693 Opinion The petitioners in this extraordinary proceeding are an orthopedic specialist and a homeowners association which retained the specialist to evaluate plaintiffs’ alleged injuries. In a number of prior proceedings in which he had testified as an expert, the specialist had been unwilling to provide any estimate of the percentage of his forensic cases in which he was ret...
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Opinion In an action by a subcontractor for negligent breach of a mandatory duty against the City of Murrieta (City), the trial court entered judgment for the City. The subcontractor appeals, contending the trial court erred in finding the City did not have a mandatory duty to require the surety providing a payment bond under Civil Code sections 3247 and *610 3248 1 ...
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Gail Crum appeals the district court’s judgment dismissing her diversity action against Circus Circus Enterprises, Inc., Circus Circus Casinos, Inc., and Circus Circus Hotel Casino, Inc. (“Circus Circus”) for lack of subject matter jurisdiction. The district court dismissed the action on the ground that Crum’s complaint did not allege that the amount in controversy exceeded $75,000 as required by...
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231 F.3d 501 (9th Cir. 2000) DANIEL REED, by and through his conservator, JOLAINE ALLEN, Plaintiffs-Appellants,andPERSHING COUNTY; PERSHING CO. SHERIFF; WASHOE COUNTY; WASHOE COUNTY SHERIFF; AVIS RENT-ACAR; LARRY DEAN HUDSON; LARRY DEAN MEYER; LARRY D. HARVEY, Individually dba: Burning Man Project; JOHN LAW, Individually dba: Burning Man Project; dba: Burning Man; MICHAEL MIKEL, Individually ...
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The major question for decision in this appeal by H. Wayne Hayes, Jr. is whether his waiver of his right to counsel in a federal prosecution was knowing, intelligent, voluntary and made with awareness of the dangers and disadvantages of self-representation. He appeals from the district court’s order of August 12, 1999, denying his motion for a reduction of sentence pursuant to Rule 35(b) of the F...
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Section 922(g)(8) of Title 18 makes it illegal for persons to possess a firearm if they are subject to a domestic violence protection order. 1 The primary issue in this appeal by Michael Charles Jones is whether the district court erred in denying Appellant’s motion to dismiss count one of the indictment charging him with violating § 922(g)(8). He raises a number of constitutional challenges to...
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The issue in this case is a prosecutor’s duty when his witness lies. LaPage argues that his conviction under 18 U.S.C. § 1014 for making false statements to a federally insured bank to obtain a loan must be reversed because the prosecutor knowingly used false testimony at his trial. FACTS In- 1991, LaPage met with Michael Manes, a loan broker, about refinancing a loan on his property. LaPag...
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Appellant Brian Matthew Scheele pleaded guilty to a three count indictment charging him with manufacturing, distributing, and attempting to manufacture methamphetamine. In the plea agreement, the government and Scheele disagreed as to the quantity of drugs attributable to Scheele and as to whether a two-level adjustment for obstruction of justice should apply. After an evidentiary hearing on thes...
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*742Opinion San Diego County Health and Human Services Agency (Agency) appeals an order and judgment of the juvenile court determining Richard L. to be the presumed father of Liam L. Agency contends the court erred in concluding that Richard was a presumed father based solely on a voluntary declaration of paternity (Fam. Code, § 7570 et seq.)1 signed by Richard and Liam’s mother, Hidey E. We affi...
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*717 Opinion No doubt for their own convenience and as a means of limiting their claims costs, but also as a way of assisting their insureds, many homeowner insurers recommend and guarantee the work of particular general contractors or other professionals needed to perform repair work following covered losses. In such cases when a contractor or other professional fails to perform...
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Opinion by Judge HAWKINS; Dissent by Judge O’SCANNLAIN. This is the latest in a long line of immigration cases involving claims of racial and political persecution against people of Indian descent living on the South Pacific island of Fiji. Like those asylum-seekers before him, Abdul Gafoor claims he was persecuted by ethnic Fijians on account of his Indian background and that he and his family w...
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In June of 1992, in Nevada state court, Bennie Scott Loveland, the petitioner, was found guilty of sexual assault. Although he was represented by retained counsel in that trial and for more than a year after his conviction, his counsel never filed either a direct appeal or a post-conviction relief petition. After Loveland’s counsel withdrew as counsel of record, Loveland filed his own pro per s...
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Opinion Eva Neufeld made a claim in April 1995 to Balboa Insurance Company for the losses incurred when the roof of her ski lodge collapsed. Balboa denied the claim in June 1995 on the ground that the cause of the losses, the weight of snow on the roof, was not a named peril under Balboa’s named peril policy. (The policy provided for narrower coverage than usual because it had been procur...
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231 F.3d 1172 (9th Cir. 2000) DESERT CITIZENS AGAINST POLLUTION; SIERRA CLUB; DESERT PROTECTIVE COUNCIL, Plaintiffs-Appellants,v.HENRI R. BISSON; TERRY A. REED; MICHAEL DOMBECK; BUREAU OF LAND MANAGEMENT, Defendants-Appellees,andGOLD FIELDS MINING CORPORATION; ARID OPERATIONS INCORPORATED, Intervenors-Defendants-Appellees. No. 97-55429 U.S. Court of Appeals for the Ninth Circuit Ar...
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C. A. 2d Cir. Motion of Northern Light Technology, Inc., for leave to file a brief as amicus curiae granted. Certiorari granted....
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C. A. 10th Cir. Certio-rari granted limited to Questions 1 and 2 presented by the petition....
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231 F.3d 1156 (9th Cir. 2000) FLORIAN SEVER; DAVID HIEBERT; MARK W. SIMMONS; ROBERT HENRY KINVILLE; EDWARD REINER; UNITED PAPERWORKERS INTERNATIONAL UNION, AFL-CIO, Petitioners,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andALASKA PULP CORPORATION, Respondent-Intervenor.ALASKA PULP CORPORATION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andFLORIAN SEVER; DAVID HIEBERT; MARK W. SI...
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101 Cal. Rptr. 2d 29 (2000) 24 Cal. 4th 400 11 P.3d 383 Gilbert DREYFUSS et al., Plaintiffs and Appellants, v. UNION BANK OF CALIFORNIA, Defendant and Respondent. No. S082261. Supreme Court of California. November 6, 2000. *30 Wendel, Rosen, Black & Dean, Charles A. Hansen, Thiele R. Dunaway, Oakland; Overton, Lyman & Prince and Gerald R. Whitt, Los Angeles, for Plaintiffs and Appellants....
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101 Cal. Rptr. 2d 200 (2000) 24 Cal. 4th 415 11 P.3d 956 The PEOPLE ex rel. Bill LOCKYER, as Attorney General, etc., Plaintiff and Respondent, v. SHAMROCK FOODS COMPANY, Defendant and Appellant. No. S082325. Supreme Court of California. November 6, 2000. *202 DeCuir & Somach, Somach, Simmons & Dunn, Michael E. Vergara, Sacramento; Blodgett, Makechnie & Vetne, John H. Vetne, Newburypor...
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Opinion In this case we decide whether a plaintiff suing for defamation can be put at risk for payment of a defendant’s costs pursuant to section 998 of the Code of Civil Procedure, if the defendant makes a reasonable settlement offer but attaches to it a condition of confidentiality. In other words, must a plaintiff seeking to vindicate his good name (and to recover damages for its tamishment)...
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231 F.3d 520 (9th Cir. 2000) LATRELL F. SPREWELL, Plaintiff-Appellant,v.GOLDEN STATE WARRIORS; NATIONAL BASKETBALL ASSOCIATION, Defendants-Appellees.LATRELL F. SPREWELL, Plaintiff,andROBERT THOMPSON, JR.; GORDON J. ROSE; STEPHEN G. WEIZENECKER; THOMPSON & ASSOCIATES; ROBERT A. GIST; PAUL F. UTRECHT; GIST, KENNEDY & ASSOCIATES, Appellants,v.GOLDEN STATE WARRIORS; NATIONAL BASKETBALL ASS...
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231 F.3d 1240 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellant,v.FRANK FERNANDEZ, aka Seal A; aka Sapo; JUAN PEREZ GARCIA, aka Seal B; MARIANO D. MARTINEZ, aka Seal C; aka Chuy; JIMMY SANCHEZ; aka Seal D; aka Smokey; MARCEL AREVALO, aka Seal F; aka Psycho; DANIEL BRAVO, aka Seal G; aka Sporty; ROBERT CERVANTES, aka Seal H; aka Gypsy; ROY GAVALDON, aka Seal I; aka Spider; DAVID GO...
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Opinion by Judge FISHER; Concurrence by Judge FERNANDEZ. Under 8 U.S.C. § 1326, a previously deported alien who “enters, attempts to enter, or is at any time found in” the United States without the express consent of the Attorney General is subject to a fine and imprisonment for up to two years.1 In Pena-Cabanillas v. United States, 394 F.2d 785, 788-90 (9th Cir.1968), we held that illegal reentr...
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Domingo Lopez-Osuna (“Lopez”) appeals his felony conviction on a one count indictment for being a deported alien found in the United States, in violation of 8 U.S.C. § 1826 (“section 1326”). Lopez contends that his conviction should be reversed because the delay between his arrest and indictment violated the preindictment provision of the Speedy Trial Act, 18 U.S.C. § 3161(b) (“Speedy Trial Act” ...
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Opinion David Allen Perez appeals following his conviction for one count of kidnapping during the commission of a carjacking (Pen. Code, § 209.5) and one count of kidnapping during the commission of a robbery (Pen. Code, § 209). Appellant claims that there is insufficient evidence to support his conviction of kidnapping during the commission of a carjacking. Appellant also claims that even if h...
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Opinion An employer admits to unreasonable delay in paying temporary disability benefits awarded to an injured employee. Here we decide how many penalties to assess under Labor Code sections 4650 1 and 5814 2 against the employer. We conclude, among other things, that the failure of an employer to self-assess a section 4650 penalty is subject to a section 5814 penalty. The workers’ compen...
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Opinion Defendant Health Net appeals from the denial of its motion to compel arbitration of a coverage dispute between plaintiff Carlo A. Warren-Guthrie and Health Net. We conclude the trial court erred in denying Health Net’s motion to compel arbitration under Code of Civil Procedure section 1281.2, subdivision (c) 1 because, under the circumstances of this case, section 1281....
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Abner J. Morgan, Jr. (Morgan) filed suit against National Railroad Passenger Corporation (Amtrak), alleging violations of Title VII of the Civil Rights Act of 1964, as amended in 1991. See 42 U.S.C. § 2000e et seq. (Title VII). Morgan claims that, because of his race, he suffered discrimination and retaliation, and endured a hostile work environment. The district court gra...
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Opinion by Judge HARLINGTON, Jr.; Dissent by Jhdge KLEINFELD. In June 1999 the grand jury returned an indictment charging defendant-appellant Miguel Alvarez-Valenzuela (“Alvarez”) and two co-defendants with conspiracy to import marijuana; importation of marijuana; conspiracy to possess marijuana with intent to distribute; and use, carrying, or possession of a gun in relation to a drug-trafficking ...
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231 F.3d 663 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.DARNELL HAYES, Defendant-Appellant. No. 98-50609 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 13, 1999Opinion Filed September 8, 1999 Order Granting Rehearing En Banc and Opinion Vacated February 1, 2000 Argued and Submitted En Banc June 22, 2000Filed November 8, 20...
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Opinion Facts Appellant Bahram Behjat was cited on August 6, 1999, for violating Vehicle Code section 22350 (basic speed law).1 He pled not guilty and the case proceeded to a court trial. The record of court proceedings is contained in the court’s settled statement on appeal. Testifying for the People, Upland Police Officer East said he was on 11th Street watching Mountain Avenue when he saw appel...
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101 Cal. Rptr. 2d 213 (2000) 24 Cal. 4th 434 11 P.3d 968 The PEOPLE, Plaintiff and Respondent, v. Deondre Arthur STATEN, Defendant and Appellant. No. S025122. Supreme Court of California. November 9, 2000. Rehearing Denied January 24, 2001. *217 Jonathan P. Milberg, under appointment by the Supreme Court, Pasadena, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General...
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Opinion This case involves the proper interpretation of the statutory provisions which prioritize claims among creditors of insolvent insurance companies, and govern the obligations of the California Insurance Guarantee Association (CIGA) to policyholders of insolvent member insurers. Under the Insurance Code, CIGA is obligated to pay an insolvent member insurer’s “covered claims,” which ...
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OPINION Nancy Follín Jones, an attorney with the Pima County Public Defenders Office (PCPD), appeals the denial of her motion *1250to proceed as next friend and to stay the execution of Don Jay Miller, an Arizona prisoner under sentence of death who has declined to seek federal habeas relief and refused to be represented in doing so by Jones or PCPD. Miller’s execution is currently scheduled for N...
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*941 Opinion Surety appeals from an order denying its motion to vacate summary judgment on a bail bond, contending, among other arguments, that the court lost jurisdiction to enter summary judgment 90 days after the expiration of an extended 180-day period provided by Penal Code sections 1305 and 1305.4. 1 We disagree. Surety filed a timely notice of motion to exonerate the bond and pursuan...
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C. A. 7th Cir. Motion of *988petitioner for leave to proceed in forma pauperis granted. Cer-tiorari granted, judgment vacated, and case remanded for further consideration in light of Artuz v. Bennett, ante, p. 4....
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C. A. 9th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Artuz v. Bennett, ante, p. 4....
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Paul Green appeals the district court’s denial of his petition for a writ of habeas corpus following his state court conviction for two counts of first degree murder and other charges in connection with a drive-by shooting. Green asserts three grounds upon which a writ of habeas corpus should be granted: (1) a juror, Eugene Adams, engaged in prejudicial misconduct by concealing a felony convictio...
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232 F.3d 679 (9th Cir. 2000) CARY LAPIDUS; DENISE LAPIDUS, Trustees of the Cary and Denise Lapidus Living Trust, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,v.G. RANDALL HECHT; PAUL STEPHENS; ROBERTSON STEPHENS & COMPANY; ROBERTSON STEPHENS & COMPANY INVESTMENT MANAGEMENT, L.P.; ROBERTSON STEPHENS INVESTMENT MANAGEMENT INC., Defendants-Appellees. ...
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"We must decide whether the district court properly dismissed a petition for ha-beas relief for failure to exhaust state court remedies. I In 1991, Phillip Jackson Lyons was convicted of kidnaping and robbery with use of a deadly weapon following a jury trial in a Nevada state court. Lyons appealed the convictions to the Supreme Court of Nevada. Citing only to decisions of Nevada and Californ...
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William Prazak appeals the district court’s summary judgment order in favor of the appellees (“the union”). The district court dismissed Prazak’s complaint, which was removed from state to federal court, for failing to comply with the six-month federal statute of limitations. We reverse. I. FACTUAL AND PROCEDURAL BACKGROUND On March 14, 1991, Prazak filed a lawsuit in Alaska Superior Court allegin...
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Opinion In this case, we decide the issue of whether a judgment debtor who is an attorney must disclose certain client information not subject *1001 to the attorney-client privilege in a judgment debtor examination. We conclude, based on the clients’ privacy interests, that the attorney judgment debtor cannot be compelled to disclose to the judgment creditor (1) the identitie...
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Opinion Appellant David W. Huffman, an actor in a musical play coproduced by Reunion Productions (Reunion) and respondent Arts Alive! Foundation (AAF), was injured while rehearsing the play at a facility owned and operated by respondent City of Poway (City). Huffman’s lawsuit alleged claims for negligence against AAF and for premises liability (Gov. Code, § 835) against City. The jury fou...
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Opinion Introduction In this “chop shop” case we are presented with a tedious and complex set of factual circumstances. Not surprisingly, the facts play an important role in the major issue presented—what type of conduct constitutes a violation of Vehicle Code 1 section 10802, tampering with vehicle identification numbers to misrepresent and prevent identification of motor...
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Opinion I. Introduction In this criminal action, the California Highway Patrol (CHP) petitions for a writ of mandate directing respondent court to vacate its order granting the Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531 [113 Cal.Rptr. 897, 522 P.2d 305]) filed by real party in interest Luis Luna (defendant) and compelling production of certain documents from two CHP ...
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In this petition, we consider: (1) whether the petitioner is inadmissable under the Immigration and Nationality Act (INA) § 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i) (1994)(amended 1996), and (2) whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) § 349, Pub.L. No. 104-208, 110 Stat. 3009-639, INA § 212®, 8 U.S.C. § 1182(i) (1996), applies to cases that w...
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We hold that an arbitration clause in appellee Laboratory Corporation of America’s ERISA-governed health benefits plan is enforceable. We also hold that appellant James Chappel should have received leave to amend his complaint to state a claim against the administrator of the plan for breach of fiduciary duty in failing adequately to notify Chappel of the existence and terms of the arbitration cla...
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This appeal from the district court’s denial of a habeas petition under 28 U.S.C. § 2254 requires us to decide seven issues: (1) whether sufficient evidence supported Petitioner’s conviction for first-degree murder; (2) whether the state trial court’s treatment of Petitioner’s in-court outburst violated due process; (3) whether the exclusion of two statements by Petitioner’s expert witnéss violat...
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Danny J. Draper appeals from a judgment by the district court under 11 U.S.C § 523(a)(15) awarding attorney’s fees and costs to his creditor and former spouse, Luann Renfrow. On appeal, Mr. Draper maintains that Renfrow had no right to an award of attorney’s fees notwithstanding a provision providing for such fees in the couple’s divorce decree. Mr. Draper further contends that the district court...
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James M. Fejes appeals from the judgment entered following his felony convictions for conspiracy to violate the Lacey Act under 18 U.S.C. § 371, and two substantive violations of the Lacey Act under 16 U.S.C. §§ 3372(a)(2)(A), 3373(d)(1)(B), and 18 U.S.C. § 2. The jury found that Fejes sold caribou in violation of the Lacey Act by providing guide services to two hunters that took the caribou in...
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Juan Carlos Herrera-Blanco (“Herrera-Bianco”) appeals from the judgment of conviction of the crime of unlawful reentry into the United States by a previously deported alien without the express consent of the Attorney General of the United States in violation of 8 U.S.C. § 1326(a) and § 1326(b)(2). He seeks reversal of his conviction on two discrete grounds: One: The Anti-Terrorism and Effective...
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OPINION Debtor appeals the order sustaining the chapter 7 1 trustee’s objection to her claim of exemption in an individual retirement account/annuity (IRA) as a private retirement plan under CaLCode Civ.Pro. § 704.115(a). The question is whether debtor’s receipt of a partial surrender under the IRA necessarily means that the IRA is not exempt. We REVERSE and REMAND. FACTS The facts are no...
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Opinion 1. Introduction The Riverside County Sheriff’s Department (County) would not hire Teg Diffey as a deputy sheriff because he is color-blind. The more accurate diagnostic term for Diffey’s condition is “deficient color vision” or “color-deficient.” Diffey sued defendants—the County, and a nurse, Rebecca Perkins— under FEHA (the California Fair Employment and Housin...
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Opinion In this insurance coverage dispute, Randy Morris, as the assignee of certain rights of Carmela Rincon Loelkes under her real estate agents and brokers professional liability policy, sued Employers Reinsurance Corporation (Employers) for breach of contract for failure to indemnify and *1028 defend Loelkes. The trial court granted summary judgment in favor of Employers, concluding that ...
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Miguel Cruz-Navarro (“Cruz”), a native and citizen of Peru, with his family, 1 petitions for review of an order of the Board of Immigration Appeals (“BIA”). The BIA affirmed the decision of the Immigration Judge (“IJ”), denying Cruz both asylum and withholding of deportation under §§ 208(a) and 243(h) of the Immigration and Nationality Act (“INA”). The BIA found that Cruz had not est...
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232 F.3d 1042 (9th Cir. 2000) DAVID J. DEARINGER and VICTOR LITOVCHENKO, ex rel. NATALIA VOLKOVA, Petitioners-Appellees,v.JANET RENO, Attorney General of the United States, and IMMIGRATION AND NATURALIZATION SERVICE, Respondents-Appellants. No. 98-35861 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted April 24, 20001Filed November 15, 2000 David J. Dearing...
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FACTUAL AND PROCEDURAL BACKGROUND Petitioner Elizabeth Diane Downs was convicted of murder, attempted murder, *1035 and assault in the Lane County Circuit Court in Oregon in 1984. The jury found that she fatally shot one of her children, Cheryl, then age seven, and seriously wounded the other two, Christie and Danny, then ages eight and three. Christie testified at trial that she saw her moth...
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The United States appeals the order of the district court affirming the bankruptcy court’s grant of summary judgment in fa *1048 vor of the trustee who brought suit for recovery of a tax refund under 26 U.S.C. § 7422. In claiming a tax refund on behalf of the debtors’ estate, the trustee sought to avoid, pursuant to 11 U.S.C. § 549, the debtors’ consent to the filing of a consolida...
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Lawrence Short appeals from the judgment of the Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”) affirming the decision of the bankruptcy court declaring nondischargeable a debt he was ordered to pay in a judgment of dissolution entered in a California state court. He contends that the debt did not come within the provisions of 11 U.S.C. § 523(a)(15) which excludes debts incurred by a debt...
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Patrick Flores Oaxaca (“Oaxaca”) appeals his conviction and sentence for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(l)(A)(viii), and 846. We conclude that the district court committed reversible error when it denied his motion to suppress evidence that government agents found after arresting him in his home without a warrant.1 FACTUAL BACKGROUND This c...
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*1074Opinion Wendi L. Harris filed a complaint against Lois M. Lammers seeking damages for injuries she sustained in a car accident. The matter was tried before a judge who ruled Lammers was negligent and who awarded Harris $21,244.62 in damages. However, the court reduced the award to $6,884.50 pursuant to the provisions of Code of Civil Procedure section 998. Harris now appeals claiming the jud...
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* Deleted on direction of Supreme Court by order dated March 14, 2001 [EDITORS' NOTE: PAGES 1041-1063 CONTAINING SHUBIN v. WILLIAM LYON HOMES, INC. HAVE BEEN OMITTED.] *Page 1064 ...
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This appeal requires us to decide whether failure to consider a defendant’s undischarged term of imprisonment and Sentencing Guideline- Section 5G1.3(c) in imposing sentence requires resentencing. Rey Chea appeals both his sentence and conviction for conspiracy to commit and committing three armed robberies of computer components distributors in violation of 18 U.S.C. § 1951(a) and 18 U.S....
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Concurring and Dissenting: Martinez was convicted in 1996 of a violation of § 11360(a) of the California Health and Safety Code, which reads, ... Every person who ... imports into this state ... any marijuana shall be punished by imprisonment in state prison for a period of two, three, or four years. Martinez’s abstract of judgment with respect to this conviction, to which we may look under Casare...
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Defendant Nicholas Middleton challenges his conviction for intentionally causing damage to a “protected computer” without authorization, in violation of 18 U.S.C. § 1030(a)(5)(A). Defendant asks us to interpret the statute, which prohibits conduct causing damage to “one or more individuals,” 18 U.S.C. § 1030(e)(8)(A), to exclude damage to a corporation. Defendant also argues that the trial cour...
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Opinion Introduction The Workers’ Compensation Appeals Board (WCAB) found that petitioner, Josephine Martinez, failed to participate in vocational rehabilitation (VR) until more than five years from the date of injury and more than one year from the last adjudication of permanent disability. Although Martinez *1081 had timely requested VR, the WCAB concluded benefits were barred by the stat...
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Opinion C. Stephen Johnson’s new home flooded during a rainstorm, he filed an action against the sellers of the home, alleging that they had intentionally and negligently failed to disclose flooding and drainage problems on the property. The sellers moved for summary judgment on the ground that Johnson had filed suit without initiating arbitration, as required by the parties’ residential ...
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Elizabeth Lyman was an 81 year old retired piano teacher. She lived by herself on Church Street in Bloomington, San Bernardino County, California. About one hour after midnight on Monday, May 26, 1980 — Memorial Day — petitioner Anderson, a 26-year old escapee from Utah State Prison, broke into Mrs. Lyman’s home* cut her phone line with a knife, and shot her in the face from a distance of 8 to 20 ...
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Jane Doe (“Doe”), a minor, appeals through her guardian and mother, Alisa Rudy-Glanzer (“Rudy-Glanzer”), the denial of a motion for a new trial. The trial by Rudy-Glanzer against Doe’s paternal *1262 grandfather Elroy Glanzer (“Elroy”), resulted in a verdict in Elroy’s favor. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm. I This case is a personal injury...
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233 F.3d 1160 (9th Cir. 2000) MARIO RICHARDS-DIAZ, Petitioner-Appellant,v.ADELE J. FASANO, District Director, Respondent-Appellee. No. 99-56530 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 12, 2000Filed November 17, 2000 Richard Freitas, San Diego, California, for the petitioner appellant. Samuel W. Bettwy, Assistant United Stat...
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Opinion California statutory and case law preceding our state’s 1963 enactment of the Uniform Commercial Code established that the indorser of a promissory note could avoid liability for any default by the maker by adding the words “without recourse” or words of equivalent effect—what we will call “the equivalency rule.” Specifically, case law held that words assigning all of o...
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Opinion The trial court issued a writ of mandate requiring Sally Reed, as Director of the Department of Motor Vehicles (DMV), to set aside the DMV’s revocation of a California school bus certificate held by respondent Virginia Menge (Menge). In the DMV’s appeal of this ruling, the issue presented is whether a school bus driver, who submitted a purportedly adulterated urine specimen in a random dr...
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232 F.3d 1271 (9th Cir. 2000) PERRY E. COLEMAN; BARBARA J. COLEMAN, husband and wife, Plaintiffs-Appellants,v.THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee.JERRY JENEY; PEGGY JENEY, husband and wife, Plaintiffs-Appellants,v.THE QUAKER OATS COMPANY, a New Jersey corporation, Defendant-Appellee.PERRY E. COLEMAN; BARBARA J. COLEMAN; JOHN RUSSELL; JERRY JENEY; DENIS SCHWEIT...
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The Southwest Center for Biological Diversity and the Sierra Club (collectively “Southwest”) challenge the legality of the *1302Department of Energy’s (“DOE”) sale of Elk Hills to Occidental Petroleum (“Occidental”). Southwest contends the DOE violated section 7 of the Endangered Species Act (“ESA”), 16 U.S.C. § 1531 et seq., by refusing to engage in consultation with the Fish & Wildlife Service (...
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Opinion Introduction The trial court concluded plaintiff and appellant Annie Fuller (Fuller) did not properly amend her complaint to substitute in defendant and respondent Dr. James Tucker (Dr. Tucker) as a Doe defendant, pursuant to Code of Civil Procedure section 474. We reverse. The trial court used the wrong legal standard in addressing the issue, and some of its factual findings...
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Opinion The First Amendment to the Constitution of the United States, one of the provisions of the Bill of Rights, states: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” (U.S. Const., 1st Amend.) Article I of the Constitution of the State of California, entitled the Declaration of Rights, states in subdivision (a) of section 2: “Every person may freely...
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232 F.3d 1139 (9th Cir. 2000) CATHOLIC SOCIAL SERVICES, INC.; AMERICAN FEDERATION OF LABOR -CONGRESS OF INDUSTRIAL ORGANIZATIONS; UNITED FARM WORKERS OF AMERICA, AFL-CIO; MIGUEL GALVEZ MORAN; IMMIGRATION PROGRAM; ESAUL DELGADILLO-URIBE; GUSTAVO RODRIGUEZ; ANIL K. URMIL; ISMAEL DE LA CRUZ; ELMA BARBOSA; QUTB-E-ALAM KAHN; MOHAMMED HAQ; JESUS REYNA REYNA, Plaintiffs-Appellees,v.IMMIGRATION AND NA...
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Opinion We hold that when a court acts under Penal Code section 17 to specify that a conviction for driving under the influence of alcohol shall be treated as a misdemeanor “for all purposes,” that offense may not afterwards be pled as a prior felony conviction under the terms of former Vehicle Code section 23175.5, now Vehicle Code section 23550.5 (Stats. 1998, ch. 118, § 84), even though the off...
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232 F.3d 1126 (9th Cir. 2000) HORIZON AIR INDUSTRIES, INC., a Washington Corporation, Plaintiff-Appellant,v.NATIONAL MEDIATION BOARD, Defendant-Appellee,INTERNATIONAL BROTHERHOOD OF TEAMSTERS, Defendant-Intervenor-Appellee. No. 98-35767 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 9, 2000Filed November 21, 2000 Michael R. Scott (argued)...
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Steve Myrvang and Joanne Myrvang (collectively “the Myrvangs”) appeal from the district court’s order affirming the bankruptcy court’s ruling that Mr. Myr-vang’s debt to his former spouse June Cotner Graves is nondisehargeable. The Myrvangs contend that the bankruptcy court’s determination of nondischargeability was erroneous as a matter of law. They further maintain that the district court err...
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*1320 Opinion Defendant Eugene Alexander Dey was convicted of transportation and possession of methamphetamine and marijuana and various recidivist allegations were found to be true. 1 He was sentenced to state prison for a term of 26 years to life and now appeals. Defendant challenges the denial of his suppression motion, the failure to instruct on the corpus delicti rule, the denial of se...
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Opinion In the published portion of this opinion, we construe certain language in Labor Code section 4750.5. We hold, first, that the phrase “unrelated noncompensable injury” means a disabling event which, had it been work related, would be compensable under the worker’s compensation laws, and, second, that the word “solely” was intended to incorporate the existing rules applicable to the...
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Pankaj Karan Singh Kataria, a native and citizen of India, petitions for review of an order of the Board of Immigration Appeals (“BIA”) dismissing his appeal of an immigration judge’s (“IJ”) denial of his application for asylum and withholding of removal. Kataria alleged past persecution and a well-founded fear of future persecution on account of his membership in the All India Sikh Student Fed...
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Stanley Russell Scales, Jr. (“Petitioner”), petitions for review of a decision of the Board of Immigration Appeals (“BIA”), dismissing his appeal from a final order of deportation. Petitioner contends that he is a United States citizen by virtue of his father’s U.S. citizenship; therefore, that he is not deportable under *1161 § 241 (a)(2)(A)(iii) of the Immigration and Nationality...
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Opinion In this case we hold an order by the trial court sealing certain court documents and barring disclosure of certain information, whether obtained through discovery or otherwise, is an unconstitutional prior restraint on speech. Factual and Procedural Background 1 This appeal arises from a daisy chain of litigation among Dr. Steven M. Hoefflin, a cosmetic surgeon w...
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Opinion In a prior unpublished decision we upheld a judgment in favor of six defendants of liability based on a claimed breach of trade secrecy. (International Billing Services, Inc. v. North American Capital (Aug. 25, 1999, C027450).) Three defendants, Emigh, Porter and Qutub (the Engineers) were formerly employed by plaintiff, International Billing Services, Inc. (IBS) and had signed confidenti...
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*1252Opinion I. The Case When Eileen, then a little more than a year old, was made a dependent of the juvenile court in the fall of 1999, the trial court denied any reunification services to her mother, Olga, because of the severity of physical abuse perpetrated by the father, Jose. (See Welf. & Inst. Code, § 361.5. subd. (b) (5).1) Eileen’s injuries were basically internal. Olga did not apprecia...
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Opinion The juvenile court terminated the parental rights of LaDawn P. (Mother) and Jim D. (Father)1 to their child, Jerome D. (Jerome), finding Jerome adoptable and declining to find that he would benefit from a continued relationship with Mother (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A)).2 Immediately after terminating parental rights, the court granted Mother’s modification petition (§ 38...
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Opinion After some reunification services were provided for Jean B., a dependent of the court, he was placed with his mother, Darla B. About a month later, Jean was abducted by his father, Patrick B. Three years later, with Jean still missing and Patrick still at large, the dependency court terminated jurisdiction—at the request of Patrick’s counsel and over the objection of Jean’s lawyer. The Lo...
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*1398 Opinion Introduction Diana Gdowski and James S. and Roella Louie own adjoining properties in a residential subdivision in Palos Verdes Estates. Following heavy rains in January 1995, Gdowski’s home was flooded and severely damaged. By a cross-complaint, Gdowski (plaintiff) sued the Louies (defendants), claiming they were responsible for her loss because their landscapi...
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Opinion Craig Boyd Drennan, who was superintendent of the Modoc Unified School District, was convicted of violating Penal Code section 632, subdivision (a) (intentional eavesdropping upon or recording of a confidential communication), based upon the installation of a hidden video camera, which took periodic photographs, without accompanying sound, of the area of the desk, computer, file cabinet...
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Opinion A police dog handled by defendant, Joseph Morrison, a California Highway Patrol officer, bit plaintiff Ronald Farnam, a Los Alamitos police officer, at the scene of an arrest. Plaintiff sued Morrison and his agency, contending Morrison negligently handled the dog. We affirm the summary judgment in favor of defendants because primary assumption of risk (the firefighter’s rule) bars the cla...
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232 F.3d 1212 (9th Cir. 2000) ANDREW LEICESTER, Plaintiff-Appellant,v.WARNER BROTHERS, a corporation; WARNER HOME VIDEO, INC., a corporation; WARNER BROS. CONSUMER PRODUCTS, a corporation; DC COMICS, a corporation; ATLANTIC RECORDING CORPORATION, a corporation, and DOES 1-20, Defendants-Appellees. No. 98-56310 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitte...
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The State of Washington (“Washington”) appeals the district court’s grant of habeas corpus relief to Stephen Whelchel (‘Whelchel”) who was convicted in state court of first-degree murder. Whelchel claims that several constitutional errors made during his trial mandate relief: (1) the violation of his Confrontation Clause rights by the admission of tape-recorded statements made by a pair of unav...
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232 F.3d 746 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.CARL EUGENE STEPHENS, Defendant-Appellant. No. 98-10374 Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit Filed November 29, 2000 D.C. No. CR-97-0057-WBS 1 Before: Joseph T. Sneed, Harry Pregerson, Circuit Judges, and David O. Carter, District Judge1 ...
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101 Cal. Rptr. 2d 817 (2000) 85 Cal. App. 4th 1 Mat J. ROGERS, Plaintiff and Appellant, v. Rene PEINADO et al., Defendants and Respondents. No. A088891. Court of Appeal, First District, Division Five. November 28, 2000. Rehearing Denied December 28, 2000. *819 Kenneth S. Katzoff, Robert R. Riggs, Sung E. Shim, Katzoff & Riggs, Berkeley, for plaintiff and appellant. Samuel E. Meredith, Nicole ...
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101 Cal. Rptr. 2d 835 (2000) 85 Cal. App. 4th 13 The PEOPLE, Plaintiff and Respondent, v. Modesto Ruiz BANIQUED et al., Defendants and Appellants. No. C031869. Court of Appeal, Third District. November 29, 2000. *837 Thomas N. Thomson, Malibu, for Defendants and Appellants. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant At...
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Opinion Jason Michael Thornton complains that a statement he volunteered to police arresting him was erroneously admitted in his trial for possession of heroin. He contends the statement was “neither material or relevant” and the trial court erred in concluding its prejudicial effect did not substantially outweigh its probative value. We believe the trial court got it right. Their attention a...
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An innocent bystander was killed in the crossfire of a shootout between two rival gangs. Two of the combatants were charged with murder and tried separately. At the trial of the first defendant (Phung), the prosecutor presented evidence that Phung had fired the first shot. At the trial of the second defendant (Nguyen, the petitioner here) the prosecutor introduced Nguyen’s own statement to the po...
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233 F.3d 1166 (9th Cir. 2000) JERRY R. SHARP; CURTIS BEARD, aka Tony Wilson; ELMER CAMPBELL; JOEL SCOTT REIMER; RONALD L. PETERSEN; JOSEPH AQUI; GILBERTO SOLIZ; HERMAN R. PASCHKE; RICHARD G. TURAY; JOHN F. HALL; PAUL BEGAY; RANDY PEDERSEN; ANTHONY GALLEGOS; DENNIS PRYOR; ROLANDO T. AGUILAR; SAMUEL WILLIAM DONAGHE, Plaintiffs-Appellees,v.DAVID B. WESTON; WILLIAM DEHMER; JOHN ANDERSON-TAYLOR; NO...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, 1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. 1 . Judge Rawlinson was recused. ...
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234 F.3d 493 (9th Cir. 2000) ASPEN GREEN; NEALE ALLEN; JON MICHAEL; DORITA BRADY; WALLACE L. CRAIG; JUDY LESTER, Residents and Qualified Electors in Tortolita, Plaintiffs-Appellants,v.CITY OF TUCSON, an Arizona municipal corporation, Defendant-Appellee. No. 99-15625 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Date Filed: 11/30/00 D.C. No. CV-98-00443-TUC/R...
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Opinion “In the history of this Court and this country, few questions have been more divisive than those arising from governmental action taken on the basis of race.” (Fullilove v. Klutznick (1980) 448 U.S. 448, 516 [100 S.Ct. 2758, 2794, 65 L.Ed.2d 902] (conc. opn. of Powell, J.); see also DeFunis v. Odegaard (1974) 416 U.S. 312, 350 [94 S.Ct. 1704, 1722, 40 L.Ed.2d 164] (dis. opn. of Brennan, J...
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Opinion “The usual paternity suit involves a man, hereafter referred to as the defendant, who does not wish to be declared the father of the child. Because of the accuracy and statistical significance of modern blood testing, the California Legislature has adopted a statutory presumption of paternity. If the defendant’s blood test results in a particular numerical score, he is presumed to be th...
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232 F.3d 979 (9th Cir. 2000) KNEVELBAARD DAIRIES, a general partnership consisting of JOHN KNEVELBAARD and SAM KNEVELBAARD, general partners, Plaintiffs-Appellants,v.KRAFT FOODS, INC., a Delaware corporation; ALPINE LACE BRANDS, INC., a Delaware corporation; BORDEN, INC., a New Jersey corporation; the NATIONAL CHEESE EXCHANGE, a Wisconsin corporation, Defendants-Appellees. No. 99-55327 ...
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ORDER The Opinion filed July 7, 2000 is amended as follows: 1.217 F.3d at 1230, immediately following the first full paragraph, insert the following paragraph: “‘What factors law enforcement officers may consider in deciding to stop and question citizens minding their own business should, if possible, be carefully circumscribed and clearly articulated. When courts invoke multi-fa...
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The district court denied the government’s motion to dismiss several counts of the indictment against defendant. After the denial, defendant pled guilty to two of the counts the government had sought to dismiss. Defendant now appeals. We hold that defendant may challenge the denial of the government’s motion despite having entered a guilty plea. We further hold, on the merits, that denial of the ...
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Opinion Appellants John and Karen Plut challenge the trial court’s adjustments to an award of damages after a jury found respondent Fireman’s Fund Insurance Company (Fireman’s Fund) liable for breach of insurance contract and bad faith. We affirm in part and reverse in part. Relevant Factual and Procedural Background The Pluts bought a house in Rancho Palos Verdes in 1975. In 19...
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102 Cal. Rptr. 2d 28 (2000) 85 Cal. App. 4th 113 Shari THOMAS, Plaintiff and Appellant, v. Barry GORDON et al., Defendants and Respondents. No. B133413. Court of Appeal, Second District, Division Four. November 30, 2000. Review Denied February 21, 2001. *30 Esner & Chang, Stuart B. Esner, Los Angeles, and Andrew N. Chang, San Jose, for Plaintiff and Appellant. Haight, Brown & Bonesteel, B...
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C. A. 4th Cir. Certiorari granted....
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C. A. 9th Cir. Motion of Central States, Southeast and Southwest Areas Health and Welfare Fund for leave to file a brief as amicus curiae granted. Certiorari granted....
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dissenting. Taken together, our decisions in Michigan Dept. of State Police v. Sitz, 496 U. S. 444 (1990), and United States v. Martinez-Fuerte, 428 U. S. 643 (1976), stand for the proposition that suspicionless roadblock seizures are constitutionally permissible if conducted according to a plan that limits the discretion of the officers conducting the stops. I am not convinced that Sitz and Marti...
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234 F.3d 1108 (9th Cir. 2000) In re: PRESTIGE LIMITED PARTNERSHIP CONCORD, a California limited partnership, Debtor.PRESTIGE LIMITED PARTNERSHIP CONCORD, a California limited partnership, Appellant,v.EAST BAY CAR WASH PARTNERS, a California limited partnership, Appellee. No. 99-15673 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 14, 2000Filed Novemb...
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232 F.3d 1166 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.CLIFTON S. COREY, Defendant-Appellant. No. 99-10232 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 14, 2000Filed November 20, 2000 Appeal from the United States District Court for the District of Hawaii: David A. Ezra, District Judge, Presiding.* D.C. No. CR-96...
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233 F.3d 1188 (9th Cir. 2000) KATURIA E. SMITH; ANGELA ROCK; MICHAEL PYLE; for themselves and all others similarly situated, Plaintiffs-Appellants,v.UNIVERSITY OF WASHINGTON, Law School; WALLACE D. LOH; SANDRA MADRID; RICHARD KUMMERT; MICHAEL TOWNSEND; ROLAND HJORTH, Defendants-Appellees,andROBERT ARONSON; JOHN JUNKER; JACQUELINE MCMURTRIE; ERIC SCHNAPPER; JANET STEARNS, Defendants.KATURIA E. ...
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101 Cal.Rptr.2d 701 (2000) 24 Cal.4th 603 12 P.3d 1110 The PEOPLE, Plaintiff and Respondent, v. Danny DUARTE, Defendant and Appellant. No. S068162. Supreme Court of California. December 4, 2000. *704 Dennis A. Fischer, Santa Monica, under appointment by the Supreme Court; Maureen DeMaio, Santa Barbara, under appointment by the Court of Appeal; Law Offices of Dennis A. Fischer and John M. Bishop, ...
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Opinion Public Utilities Code section 453, subdivision (d), provides: “No public utility shall include with any bill for services or commodities *89furnished any customer or subscriber any advertising or literature designed or intended (1) to promote the passage or defeat of a measure appearing on the ballot at any election whether local, statewide, or national, (2) to promote or defeat any candi...
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Opinion Where an automotive dealer protests the termination of its franchise to the New Motor Vehicle Board and the board overrules the protest, judicial review should be conducted under the substantial evidence test, not the independent judgment test. Because the trial court applied the wrong standard, we issue a writ of mandate directing the trial court to reverse its decision. Fac...
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Opinion Introduction The Sexually Violent Predators Act (SVPA or the Act) was enacted October 11, 1995, effective January 1, 1996, and codified in Welfare and *210 Institutions Code 1 section 6600 et seq. (Stats. 1995, chs. 762, 763.) In section 1, the Legislature set forth its findings and summarized the purpose of the new law, which was to identify an extrem...
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Opinion Introduction “An object is what it is.” So stated the Court of Appeal in Farnham v. City of Los Angeles (1998) 68 Cal.App.4th 1097 [80 Cal.Rptr.2d 720], waiving *223 aside concerns that its broad definition of “trail” under Government Code section 831.4, 1 would result in expansion of the term beyond recognition, providing a gover...
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ORDER The opinion filed in this matter on September 20, 2000, and reported at 227 F.3d 1125, is amended as follows: At 227 F.3d at 1127, delete the last sentence of the second paragraph of the opinion (beginning “We do not notice ...”). For the deleted sentence, substitute the following: We conclude that the error was harmless beyond a reasonable doubt, however, because the ...
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David Munoz, Bennie McGregor, and Donald Thomson appeal their convictions and sentences for mail fraud and aiding and abetting under 18 U.S.C. §§ 1341 & 2 (2000). After a month-long trial a jury found all three defendants guilty of mail fraud for participating in a fraudulent “Ponzi” investment scheme. We have jurisdiction and affirm their convictions but vacate the sentences of Muno...
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234 F.3d 411 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.GABRIEL PACHECO-ZEPEDA, Defendant-Appellant. No. 99-50720 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 2000--Pasadena, California Filed December 6, 2000 NOTE: SEE AMENDED OPINION OF FEBRUARY 8, 2001 ...
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This appeal involves an inventory search of the contents of a vehicle that was being driven by Kyllo Penn without proof of insurance and that, pursuant to Portland municipal law and police department policy, had to be impounded. The Portland Police Bureau officer who conducted the search did so without telling Penn that he could first remove his personal property. The district court ruled that th...
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OPINION Debtor brought a class action asserting a private right of action for violation of the discharge injunction based on a creditor’s collection of debts pursuant to an invalid reaffirmation agreement. The bankruptcy court found that the reaffirmation agreement was valid and dismissed the action with prejudice. We affirm in part and reverse in part. We hold that the reaffirmation ...
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Opinion Respondent Margaret Gardenhire prevailed in a claim against her employer, appellant Housing Authority of the City of Los Angeles (the Housing Authority), in a claim for retaliation under Labor Code section 1102.5, 1 the so-called whistleblower statute. She recovered damages in the amount of $1,318,785.10. On appeal, the Housing Authority contends that Gardenhire failed to establish en...
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102 Cal. Rptr. 2d 55 (2000) 85 Cal. App. 4th 245 Leanne JENSEN, Plaintiff and Appellant, v. WELLS FARGO BANK, Defendant and Respondent. No. B134875. Court of Appeal, Second District, Division Four. December 5, 2000. Rehearing Denied December 28, 2000. Review Denied March 14, 2001.[**] *57 Duchrow & Barker and David J. Duchrow, Pico Rivera, for Plaintiff and Appellant. Fisher & Phillips, J...
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PER CURIAM Opinion; Concurrence by Judge TASHIMA Petitioner Anthony Lewis Whalem/Hunt is serving a life sentence with possibility of parole based on his conviction in California state court for carjacking, kidnapping for ransom, and kidnapping for carjacking. Petitioner timely appealed his conviction, and the California Supreme Court denied *1147his petition for direct review on April 24, 1996. Th...
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ORDER The opinion filed October 26, 2000, is hereby amended as follows: The slip opinion at 13486, lines 1-2, after the sentence that reads: “Because waiver is an equitable doctrine, Turner argues, the ‘gist’ of Wyler Summit’s claim is equitable.” [ADD TWO NEW PARAGRAPHS ]: Initially, Turner points to some 19th century California cases involving issues of waiver, and ...
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Ian Martin Lynch appeals his conviction under 16 U.S.C. § 470ee(a) of the Aeheo-logical Resources Protection Act (“ARPA”). He entered a conditional guilty plea after the District Court advised him that the Government would not have to prove that the defendant knew that his act was against the law nor that, the skull he removed from government land was an archeological resource. The distric...
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ORDER The opinion filed March 17, 2000, appearing at 208 F.3d 1073, (9th Cir.2000), is amended as follows: Page 1076, caption: change Defendants-Appellants to Defendants-Appellees, and add Specialty Medical Clinic, Inc. and Specialty Medical Clinic Inc. Employee Benefit Plan at the end of the list of defendants-appellees. ...
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Opinion Appellant Elizabeth Martinez has refused to allow respondents, Rachel and Ruben Lopez, to visit her son, Daniel Martinez. Daniel is respondents’ grandson and the biological son of appellant and Carl Blair. Respondents petitioned for visitation rights pursuant to Family Code section 3104, which gives grandparents standing to petition for visitation when a *281 minor’s parents are livin...
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I. FACTS Mr. Cortez-Acosta, a resident alien, was ordered in December 1994 to show cause why he should not be deported. The reason stated in English and Spanish on his *478 notice was that he was “an alien who ... knowingly has encouraged, induced, assisted, abetted, or aided any other alien to enter or to try to enter the United States in violation of law.” This all grew ...
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234 F.3d 428 (9th Cir. 2000) JOSEPH SHWARZ, husband; BETH SHWARZ, wife; AMERICAN BOILER WORKS, INC., a California corporation, Plaintiffs-Appellants,v.UNITED STATES OF AMERICA; INTERNAL REVENUE SERVICE; UNITED STATES ATTORNEY, for the Central District of California; NORA M. MANELLA; STEVE HADLEY; AL BRYANT, Defendants-Appellees. No. 99-55618 UNITED STATES COURT OF APPEALS FOR THE NINTH...
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Moses Corona-Sanchez pled guilty to illegally reentering the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2). He received a 77-month sentence, which reflects a sixteen-level enhancement of the base offense level, based on the district court’s finding that Corona-Sanchez reentered the United States after deportation and the commission of aggravated felony pursuant to ...
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234 F.3d 436 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JODY MYESHA ORSO, Defendant-Appellant. No. 99-50328 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued April 7, 2000 andSubmitted August 15, 2000Filed December 8, 2000 Emily S. Uhrig, Los Angeles, California, for the defendant appellant. Wendy O. Clendening, Office of the United St...
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234 F.3d 464 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.MAURILLO ROJAS-MILLAN, Defendant-Appellant. No. 98-10518 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 12, 2000Filed December 8, 2000 [Copyrighted Material Omitted][Copyrighted Material Omitted] Franny Forsman, Federal Public Defender, and Michael K. Po...
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Opinion Appellants Baxter Healthcare Corporation and Baxter International, Inc., sought a judicial declaration that the California Insurance Guarantee Association (CIGA) must indemnify them. Appellants paid product liability claims which would have been paid by two insurance carriers, now insolvent, of a predecessor company. We review the trial court’s decision de novo {Hunter v. Pa...
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102 Cal. Rptr. 2d 125 (2000) 85 Cal. App. 4th 382 Andrew P. PAVICICH, Jr., et al., Cross-Complainants and Respondents, v. Anthony H. SANTUCCI, Cross-Defendant and Appellant. Los Gatos Brewery Limited Partners, Plaintiff and Respondent, v. Anthony H. Santucci, Defendant and Appellant. Nos. H019844, H020472. Court of Appeal, Sixth District. December 8, 2000. *128 David C. Johnson and Anthony H. San...
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C. A. 9th Cir. Certiorari granted....
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C. A. 4th Cir. Certiorari granted....
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C. A. 2d Cir. Certiorari granted....
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Opinion Introduction Welfare and Institutions Code section 8102 authorizes the confiscation and possible forfeiture of firearms or other deadly weapons from persons *417 taken into custody for evaluation of their mental condition under Welfare and Institutions Code section 5150. 1 Appellant Alexander Almelia Yan challenges the constitutionality of section 81...
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This case presents the question of whether a homeowners association must demonstrate all five elements of common law fraud, including misrepresentation and reliance, to prove that its claim for delinquent homeowners dues is nondischargeable under 11 U.S.C. § 523(a)(2)(A). We hold that it must. This case also presents the question of whether a bankruptcy court abuses its discretion by vacat...
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Plaintiffs Thomas and Cindy Leipart appeal the dismissal of their state common-law tort claims against defendant Guardian Industries (“Guardian”). The district court held that their claims were preempted by the Consumer Product Safety Act (“CPSA”). See 15 U.S.C. §§ 2051-2084. We hold that plaintiffs’ claims are not pre-empted, and accordingly reverse and remand for further proceedings. I Plaintiff...
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William Lee Shackleford, a California state prisoner, appeals the judgment of the district court denying his petition for a writ of habeas corpus. Shackleford was tried and convicted in state court of first-degree murder. Three issues have been certified for this appeal: (1) Was Shackleford denied due process because the state trial court gave the jury an erroneous felony-murder instruction? (2...
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Earl Wayne Tillman appeals the district court’s dismissal of his action against the Association of Apartment Owners of Ewa Apartments, Beverly Hangman and Norman Hangman. Tillman also challenges the district court’s denial of his motion for a new trial brought under Fed.R.Civ.P. 59(a). Because we lack jurisdiction over the appeal from the final judgment and Tillman’s motion for a new trial was un...
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235 F.3d 1200 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.SEALED 1, Letter of Request for Legal Assistance from the Deputy Prosecutor General of The Russian Federation,pursuant to an agreement between The Government of The United States of America and The Government of the Russian Federation on Cooperation In Criminal Law Matters In the Criminal Matter of, Defendant-Appellan...
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Opinion A delinquent ward of the juvenile court committed a new offense, possession of marijuana on school grounds, for which the only authorized disposition is a fine. A Welfare and Institutions Code section 602 1 petition was filed for the new offense and found to be true. The juvenile court aggregated the minor’s previous offense, possession of a concealable weapon, with the...
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102 Cal. Rptr. 2d 179 (2000) 85 Cal. App. 4th 434 The PEOPLE, Plaintiff and Respondent, v. Corey ROBINSON, Defendant and Appellant. No. B130050. Court of Appeal, Second District, Division Five. December 11, 2000. Rehearing Denied January 2, 2001. Review Denied March 21, 2001. *180 Dale Dombkowski, San Francisco, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, ...
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*403 Opinion After a jury trial, Kenneth Talhelm (hereafter referred to as defendant) 1 was found a sexually violent predator within the meaning of Welfare and Institutions Code 2 section 6600 et seq., also known as the Sexually Violent Predators Act (hereafter the SVP Act or the Act) and committed to a state mental institution for a two-year term. On appeal...
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Aircraft safety is a matter of significant public importance, and the Federal Aviation Administration (“FAA”) plays a central role in monitoring safety through its certification of commercial aircraft. At issue in this case is whether the United States is immune from liability under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1994) (“FTCA”), for the FAA’s alleged negligence in issuing ...
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This appeal represents one of a number of supplemental proceedings in the ongoing litigation concerning Indian fishing rights in the Pacific Northwest. All of these supplemental proceedings require the interpretation of Judge Boldt’s opinion in United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974), aff'd 520 F.2d 676 (9th Cir.1975). This proceeding concerns the interpretation of Judg...
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Samuel Aragbaye (“Appellant”) appeals the sentence imposed by the district court following his guilty plea to violations of 18 U.S.C. §§ 287 (presenting false claims against the United States) and 371 (conspiring to defraud the United States). Appellant contends that the district court erred in relying on the sentencing guidelines for tax offenses rather than the guidelines for fraud in imposin...
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This appeal concerns the limits of the Muckleshoot Tribe’s saltwater usual and accustomed fishing area under the Boldt Decision. Because we agree with the district court that the Muckleshoot’s saltwater usual and accustomed fishing area, as found by Judge Boldt, was limited to Elliott Bay, we affirm the grant of summary judgment for the Puyallup, Suquamish, and Swinomish Tribes. Background and Pro...
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This case is a tributary, flowing out of the watershed fishing rights case of United States v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) (“the Boldt Decision”), aff'd, 520 F.2d 676 (9th Cir.1975). The Boldt Decision sought to divide equitably salmon fishing rights between the State of Washington and various Native American tribes, whose fishing rights are secured by treaty with the United States...
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Robert Louis Syrax appeals the sentence imposed by the district court following his guilty pleas to one count each of violations of mail fraud, wire fraud, interstate transportation of property obtained by fraud, and money laundering. Syrax contends that the district court erred in failing to group his fraud and money laundering counts for sentencing, and in imposing a two-level enhancement for...
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OPINION Debtor Ritter Ranch Development, L.L.C., a Delaware limited liability company and Chapter 11 debtor in possession (“Ritter Ranch”), seeks a declaratory judgment that the holders of $40.7 million in community development bonds (the “Bondholders”) are “creditors” in this case. Rit-ter Ranch apparently wants the Bondholders to be creditors so that it can either cure defaults and resu...
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OPINION The chapter 11 1 trustee appeals the bankruptcy court’s order overruling the *881 trustee’s objection to debtors’ claim of a homestead exemption. The issue is whether debtors are entitled to a homestead exemption when they did not claim it before confirmation of their chapter 11 plan and their plan provided that creditors would be paid with the proceeds of ...
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Opinion The Medical Board of California (Board) appeals from a judgment granting a peremptory writ of mandate commanding it to set aside a citation it issued to Dr. William Steinsmith. We reverse. I. Steinsmith is a Board-licensed physician who performed disability evaluations of persons referred by the California Department of Social Services at the Bay View Medical Clinic (Cli...
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Opinion Sandra S. (appellant), the mother of Dakota S. (the minor), appeals from orders of the juvenile court modifying the minor’s placement and selecting a permanent plan of guardianship with the minor’s foster parent, who had been given de facto parent status. (Welf. & Inst. Code, §§ 366.26, 388; further section references are to this code unless specified otherwise.) Among other things, appel...
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Opinion Dennis E. Damon, a former manager of a homeowners association, brought a defamation complaint against several of the association members, two board of directors members, and a private homeowners association club. 2 The trial court granted defendants’ motion to strike the complaint under California’s anti-SLAPP (strategic lawsuit against public participation) statute. (C...
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Opinion The Family Code is clear that child support ends, at the latest, at age 19. 1 The only exception is in the case of an adult child who *484 is incapacitated from earning a living and is without sufficient 2 Accordingly, in In re Marriage of Chandler (1997) 60 Cal.App.4th 124 [70 Cal.Rptr.2d 109], this court held that a trial court did n...
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235 F.3d 453 (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JUAN RODRIGO GAMEZ-ORDUNO, JOSE MARTINEZ-CARRA, JESUS MARTINEZ-VILLA, Defendants-Appellants. Nos. 99-10443 99-10445 99-10048 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 6, 2000Filed December 14, 2000 [Copyrighted Material Omitted] Leslie A. Bowman, Tucso...
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236 F.3d 568 (9th Cir. 2000) MICHAEL ANTHONY, Petitioner-Appellant,v.STEVEN CAMBRA, JR., Warden, Respondent-Appellee. No. 99-15458 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 11, 2000Filed December 15, 2000 [Copyrighted Material Omitted] David W. Fermino, Office of the Federal Public Defender, San Francisco, California, for the ap...
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For the second time, this case is before us for the resolution of justiciability issues. Following remand from this court, the district court dismissed the action for the second time for lack of Article III standing. Plaintiffs, who are homeowners in *1128San Francisco’s Mission District (“Homeowners” or “plaintiffs”), again appeal. Homeowners brought this action against defendants, United States ...
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ORDER AND AMENDED OPINION ORDER The memorandum disposition filed October 18, 2000, is redesignated as an authored opinion by Judge Goodwin, with modifications. Judge McKeown has voted to deny the petition for rehearing en banc, and Judges Goodwin and Judge Alarcon recommended denial. The full court has been advised of the petition for rehearing en banc and no active judge has requested a ...
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102 Cal. Rptr. 2d 97 (2000) 24 Cal. 4th 676 13 P.3d 704 Glenn Russell BARNER, Plaintiff and Appellant, v. Julie LEEDS, Defendant and Respondent. No. S070377. Supreme Court of California. December 18, 2000. *98 Cicconi, Iglesias & Cicconi, Drew Allan Cicconi; Cormicle and Belter and Bruce Cormicle, Santa Monica, for Plaintiff and Appellant. Lloyd W. Pellman, County Counsel, Louis V. Aguilar, A...
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*605 Opinion In this case we hold that a municipality cannot invoke former Government Code section 21025.4 (hereafter Government Code section 21164) 1 to retire a police officer without her consent on an industrial disability pension under the Public Employees’ Retirement System (PERS) solely because her work-related condition is “permanent and stationary” when the off...
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Opinion Devon Ray Andrade appeals his conviction by jury trial of arson of a structure with use of a device designed to accelerate a fire (Pen. 2 §§ 451, subd. (c), 451.1, subd. (a)(5)) (count 1); two counts of second degree burglary (§ 459) (counts 2, 8); two counts of possession of flammable or combustible material (§453, subd. (a)) (counts 3, 7); misdemeanor vandalism (§ 594...
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102 Cal.Rptr.2d 350 (2000) 85 Cal.App.4th 553 PALM VALLEY HOMEOWNERS ASSOCIATION, INC., Plaintiff and Respondent, v. DESIGN MTC, Defendant; Edwards, Sooy & Byron, Objector and Appellant. No. E025519. Court of Appeal, Fourth District, Division Two. December 15, 2000. Review Denied March 28, 2001. *351 Edwards, Sooy & Byron and Michael M. Edwards, San Diego, for Objector and Appellant. Thorsnes, Ba...
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Opinion by Judge REINHARDT; Dissent by Judge O’SCANNLAIN John Douglas Smith (“Smith”) appeals the district court’s affirmance of the bankruptcy court, which denied his effort to exempt from his bankruptcy estate property that he characterized as a “private retirement plan.” His appeal raises two questions, both of which are novel in this Circuit: first, whether the indefinite “continuance” of a B...
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234 F.3d 483 (9th Cir. 2000) In re: JOHN DOUGLAS SMITH, Debtor.JOHN DOUGLAS SMITH, Appellant,v.PETER KENNEDY; ARMAND BOUZAGLOU; KIRIT GALA; CARY PRESENT; JOHN SEVILLA; CHARLES WISEMAN; PETER ANDERSON, Peter Anderson, Trustee, Appellees. No. 98-56795 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed December 19, 2000 1 Before: Stephen Reinhardt and Diarmuid...
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Defendant Southwest Marine, Inc., appeals from the district court’s judgment for Plaintiffs Natural Resources Defense Council (NRDC), San Diego Baykeeper, and Kenneth J. Moser, in their citizen enforcement action under § 505(a) of the Clean Water Act (CWA), 33 U.S.C. § 1365(a). In response to Defendant’s challenge, we hold: Plaintiffs have standing to bring this action, Plaintiffs’ notice lette...
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Ronald S. Carlson appeals his jury convictions for felony tax evasion under 26 U.S.C. § 7201. Carlson was convicted of three counts of evasion of assessment of taxes and two counts of evasion of payment. Carlson argues that the evidence was insufficient to convict him, and also raises several claims of error in the jury instructions. We have jurisdiction under 28 U.S.C. § 1291, and AFFIRM the con...
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Upon the vote of a majority of nonre-cused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. . Judge Tallman was recused. ...
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Opinion I. This petition follows a postconviction order by the trial court holding petitioner, the Public Defender of Alameda County (Public Defender), in contempt for refusing to return to the court defense copies of juror questionnaires prepared by the venire in the criminal prosecution of People v. Brown (Super. Ct. Alameda County, No. H-26122). 1 The eight-page questionnaires had ...
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Opinion Appellant Wanjiko Hardin was convicted by a jury of second degree murder of a victim over 60 years of age with personal use of a deadly weapon (Pen. Code, §§ 187, 1203.09, subd. (a), 12022, subd. (b)). 1 After admitting two prior convictions for drug-related felonies, defendant was sentenced to state prison for a total term of 17 years to life. The Attorney General...
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102 Cal. Rptr. 2d 363 (2000) 85 Cal. App. 4th 667 The PEOPLE, Plaintiff and Respondent, v. Carlos CALLEJAS, Defendant and Appellant. No. B131626. Court of Appeal, Second District, Division Seven. December 18, 2000. *364 Jonathan B. Steiner, Richard Lennon, Los Angeles, and Barbara Gash, under appointments by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P...
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Opinion The Orange County District Attorney seeks extraordinary relief from the trial court’s order sustaining Rodolfo Najera Blanquel’s demurrer to felony charges of Vehicle Code section 23152, subdivisions (a) and (b). (All further statutory references are to this code unless otherwise specified.) The information alleges that Blanquel’s offenses are felonies because he “was previously convicted ...
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Opinion Defendant was convicted by a jury of burglary (count I; Pen. Code, 1 § 459), assault with a deadly weapon (count II; § 245, subd. (a)), making terrorist threats (count IV; § 422) and two misdemeanor violations of battery (counts V & VI; § 242). By bench trial, the court found true the allegations that defendant had suffered a serious prior felony conviction, attempted r...
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235 F.3d 1160 (9th Cir. 2000) RICHARD ADAM, Plaintiff-Appellant,v.STATE OF HAWAII; WAYNE CARVALHO, Police Chief, in his individual and Official Capacity as Chief of Police; STANLEY HAANIO, Officer, in his individual and official capacity as a police officer; POLICE DEPARTMENT, COUNTY OF HAWAII; COUNTY OF HAWAII, Planni, Defendants-Appellees. No. 99-15988 UNITED STATES COURT OF APPEALS ...
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Defendant Douglas Keith Cade challenges the length of the supervised release component of his sentence. We affirm. PROCEDURAL AND FACTUAL BACKGROUND Defendant pleaded guilty to a charge of bank embezzlement, in violation of 18 U.S.C. § 656, a Class B felony. On September 19, 1996, the district court sentenced him to a split sentence of four months’ incarceration and four months in a community...
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A jury convicted Jeffrey Lynn Franklin (“Franklin”) of eight counts of being a felon in possession of a firearm pursuant to 18 U.S.C. § 922(g) and § 924(e). The district court sentenced Franklin to 180 months in prison for counts one, two, four, five, seven and eight of the eight-count indictment. The district court thereafter granted a habeas petition for unconstitutional multiplicity of counts ...
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235 F.3d 1153 (9th Cir. 2000) WESTERN CENTER FOR JOURNALISM, d/b/a Western Journalism Center, Plaintiff-Appellant,v.THOMAS CEDERQUIST, and MARGARET MILNER RICHARDSON, Defendants-Appellees. No. 99-35377 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 5, 2000Filed December 20, 2000 Larry Klayman, Washington D.C., for the plaintiff-appellan...
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102 Cal.Rptr.2d 447 (2000) 85 Cal.App.4th 793 In re Artis IVEY On Habeas Corpus. No. B142777. Court of Appeal, Second District, Division Five. December 19, 2000. *449 Leonard J. Meyberg, Jr., Los Angeles, for Petitioner. No appearance on behalf of Respondent Superior Court. No appearance on behalf of Real Party in Interest. *448 GRIGNON, Acting P.J. In a child custody and support proceeding, a fa...
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102 Cal. Rptr. 2d 743 (2000) 85 Cal. App. 4th 824 Laraine KUEHN, Plaintiff and Appellant, v. Garrett KUEHN, Defendant and Respondent. No. B131690. Court of Appeal, Second District, Division Three. December 20, 2000. *745 Rick Edwards, Los Angeles, and Dominador Tolentino for Plaintiff and Appellant. Wolfe & Wolfe and Bruce P. Wolfe, Van Nuys, for Defendant and Respondent. *744 KLEIN, P.J. Pla...
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102 Cal.Rptr.2d 435 (2000) 85 Cal.App.4th 774 Ben PINEDO, Plaintiff and Respondent, v. PREMIUM TOBACCO STORES, INC., et al., Defendants and Appellants. No. B138076. Court of Appeal, Second District, Division Four. December 19, 2000. *436 Aiken, Kramer & Cummings, Matthew F. Graham, Oakland, and Tammy A. Brown, for Defendants and Appellants. Danz & Gerber, Stephen F. Danz, Karl Gerber, She...
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Opinion The Department of Motor Vehicles (DMV) suspended Stuart Fred Prase’s driver’s license following an administrative per se hearing. When Frase challenged the suspension in court, the DMV was unable to file the complete administrative record because it had lost a portion of the hearing—the testimony of Frase and his expert—and refused to bear the cost of reconstructing it. We affirm the ju...
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OPINION INTRODUCTION William Little (“appellant”), a secured creditor, appealed from the bankruptcy *308 court’s order which avoided his lien on a motor vehicle owned by Muriel Reaves (“debtor”). The court held, under § 522(f), 1 that the lien impaired the debt- or’s exemption. We are asked to construe the effect, if any, of a pre-petition municipal co...
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OPINION The appellant loaned $50,000 to the ap-pellee and the appellee’s husband, relying on assurances by her accountant and the couple’s attorney that they would be able to repay her. These assurances were made in view of a large inheritance the appellee stood to receive before the loan came due. The appellee received the inheritance and gave a portion of it to her husband with the instruction t...
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102 Cal.Rptr.2d 280 (2000) 24 Cal.4th 693 13 P.3d 1122 EAST BAY ASIAN LOCAL DEVELOPMENT CORPORATION et al., Plaintiffs and Respondents, v. The STATE of California, Defendant and Appellant. No. S077396. Supreme Court of California. December 21, 2000. *283 Daniel E. Lungren and Bill Lockyer, Attorneys General, Roderick E. Walston and Richard M. Frank, Chief Assistant Attorneys General, Carole R. Ko...
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Opinion In this case of first impression, we are called upon to interpret section 21350 of the Probate Code insofar as it restricts transfers to a fiduciary who “transcribes the instrument or causes it to be transcribed.” (Subd. (a)(4).) We then apply that interpretation to the will of Regis Swetmann, who left the residue of his estate to George Cushing (Cushing), his conservator (who also had, fo...
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102 Cal.Rptr.2d 468 (2000) 85 Cal.App.4th 836 Gary MORGAN et al., Plaintiffs and Appellants, v. City of Los Angeles BOARD OF PENSION COMMISSIONERS, Defendant and Respondent; City of Los Angeles, Real Party in Interest and Respondent. No. B141831. Court of Appeal, Second District, Division Two. December 20, 2000. Review Denied March 28, 2001.[*] *469 Silver, Hadden, & Silver, Stephen H. Silver...
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Opinion Petitioners 1 are news media that disseminate news locally, regionally and nationally. On August 25, 2000, respondent superior court entered an order (the order) prohibiting Media or anyone from publishing any nontilized 2 images of the defendants in a pending criminal proceeding, regardless of the source from which Media obtained the images. Media’s petition...
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Opinion Plaintiff, Richard D’Sa (plaintiff) appeals from a summary judgment entered in favor of defendants Playhut, Inc. and Worldtec Group International (Playhut, Worldtec, collectively defendants). 1 Plaintiff sued defendants for wrongful termination, alleging defendants violated public policy when they fired him because he refused to sign a “confidentiality agreement” that contained an ill...
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102 Cal.Rptr.2d 514 (2000) 85 Cal.App.4th 946 In re FRANCISCO S., a Minor, on Habeas Corpus. No. B144047. Court of Appeal, Second District, Division One. December 21, 2000. *515 Michael P. Judge, Public Defender, Albert J. Menaster, Rudolfo Aguirre and Lisa R. Greer, Deputy Public Defenders, for Petitioner. Gil Garcetti, District Attorney, George M. Palmer, Brent Riggs and Roberta Schwartz, Deput...
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102 Cal. Rptr. 2d 511 (2000) 85 Cal. App. 4th 941 In re NICHOLAS Y., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Nicholas Y., Defendant and Appellant. No. B142520. Court of Appeal, Second District, Division Four. December 21, 2000. Review Denied April 11, 2001. *512 Gerald Peters, under appointment by the Court of Appeal, Encino, for Defendant and Appell...
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Opinion In this breach of contract suit between two law firms and their attorneys, the plaintiffs have filed an appeal from the judgment entered in favor of defendants. Plaintiffs are Elyse R. Margolin and the law offices of Levin & Margolin (Margolin, or plaintiffs). Defendants are Joseph She-maria, Joseph Shemaria, a professional corporation, and the Law Offices of Joseph Shemaria (Shem...
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102 Cal.Rptr.2d 622 (2000) 85 Cal.App.4th 905 The PEOPLE, Plaintiff and Respondent, v. George SCOTT, Defendant and Appellant. No. B131005. Court of Appeal, Second District, Division Three. December 21, 2000. Review Denied April 11, 2001.[*] *624 Sharon L. Rhodes, under appointment by the Court of Appeal, San Diego, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Ch...
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102 Cal.Rptr.2d 476 (2000) 85 Cal.App.4th 848 KYLE O., Plaintiff and Appellant, v. DONALD R. et al., Defendants and Respondents. No. C030298. Court of Appeal, Third District. December 21, 2000. *477 Julie E. Mumma, Sacramento, for Plaintiff and Appellant. Eldridge & Eldridge, Richard A. Eldridge, MacKenzie & Brody, R.L. MacKenzie, Sacramento, for Defendants and Respondents. Certified for ...
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102 Cal. Rptr. 2d 637 (2000) 85 Cal. App. 4th 969 The PEOPLE, Plaintiff and Respondent, v. Tyrone Davis WALKER, Defendant and Appellant. No. C032956. Court of Appeal, Third District. December 21, 2000. Review Denied April 11, 2001. *638 Gregory L. Cannon (under appointment by the Court of Appeal) San Diego, for Tyrone Davis Walker. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistan...
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Opinion At the primary election on June 2, 1998, the voters of Sacramento County approved Measure D and Measure E, both of which dealt with the arbitration of employment disputes between the County of Sacramento and nonsupervisory law enforcement representatives. Measure D passed by 58 percent of the vote, while Measure E passed by 53 percent of the vote. The difference between the initiatives is ...
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We must decide whether a taxpayer is entitled to an income tax deduction for expenses incurred to place a proposition affecting his working conditions on a local ballot. I Robert Geary, a veteran officer of the San Francisco Police Department, appeals a judgment from the Tax Court upholding the Commissioner’s determination of a deficiency in his income tax for the 1993 tax year and an assessm...
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ORDER The opinion filed on September 7, 2000, and reported at 224 F.3d 1141 (9th Cir. 2000), is hereby withdrawn....
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Opinion This case presents the question whether, in a guardianship proceeding, grandparents may be compelled to pay an indigent minor’s attorney’s fees and costs. Louis and Patricia E. (grandparents) were successful in their petition to be appointed guardian of their grandchild, who was represented by court-appointed private counsel. They appeal from an order requiring them to pay the gra...
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We are asked to decide, once again, whether a waiver of rights to appeal clause in a plea agreement is enforceable. I As part of an investigation into Vietnamese gang activity in the San Jose area, an undercover officer sold purportedly stolen computer chips to Michael Nguyen (“Nguyen”). At a later date, a second undercover officer, posing as an Intel Corporation employee, sold over $250,000 ...
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ORDER AND AMENDED OPINION ORDER The opinion filed on September 15, 2000 [224 F.3d 1157] is amended as follows: Slip op. p. 1159,1.9, add: “Alternatively, voluntarily remaining in the country after an involuntary entry satisfies the statute.” Slip op. p. 1159, 1.7, add: “Apprendi argument. Quintana’s argument that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2...
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Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be heard by the en banc court pursuant to Circuit Rule 35-3. ...
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102 Cal.Rptr.2d 533 (2000) 24 Cal.4th 767 14 P.3d 207 The PEOPLE, Plaintiff and Respondent, v. Robert TINDALL, Defendant and Appellant. No. S080078. Supreme Court of California. December 28, 2000. *534 Barry J. Post, San Pedro, and Edward H. Schulman, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Polla...
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Opinion Plaintiff Tosco Corporation (Tosco) brought this action against numerous insurers to establish insurance coverage for environmental *1018cleanup costs. The appeals now before us arise from summary judgments entered in favor of three insurers on the authority of A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188 [56 Cal.Rptr.2d 207] (A. C. Label), which held that a compre...
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102 Cal. Rptr. 2d 673 (2000) 85 Cal. App. 4th 1042 WESTREC MARINA MANAGEMENT, INC., et al., Plaintiffs and Appellants, v. JARDINE INSURANCE BROKERS ORANGE COUNTY, INC., et al., Defendants and Appellants. No. G023980. Court of Appeal, Fourth District, Division Three. December 28, 2000. *674 Troop Steuber Pasich Reddick & Tobey, Mary K. Barnes, Lori M. Yankelevits and Kirk A. Pasich, Los Angele...
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Opinion by Judge GOULD; Dissent by Judge B. FLETCHER. ORDER The majority opinion filed June 15, 2001, is amended as follows: 1) Add the following sentence to the end of the third paragraph of section III. B. 4 (Superiority, Rule 23(b)(3)(D)): Of course, we do not suggest that the causation difficulties necessarily render class certification impossible. Judges O’Scannlain and Gould have voted to de...
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