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All Reporters → cal-daily-op-serv → Volume 94

Opinions in cal-daily-op-serv Volume 94

12 F.3d 1529w ALBERTSON'S, INC., Petitioner-Appellant-Cross-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee-Cross-Appellant. Nos. 91-70380, 91-70381. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 4, 1993.Submission Vacated March 11, 1993.Resubmitted April 21, 1993.Decided Dec. 30, 1993. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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12 F.3d 938 62 USLW 2449, 25 Bankr.Ct.Dec. 136, Bankr.L. Rep. P 75,648 In re LCO ENTERPRISES, Debtor.Lincoln ALVARADO; Patrician Associates, Inc.; LPC AlvaradoPhase II, Appellees,v.Edward M. WALSH, Trustee, Appellant. No. 92-15825. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1993.Decided Dec. 30, 1993. Melanie M. Darling, Goldberg, S...
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OVERVIEW Steven Spain (“Spain”) appeals the district court’s denial of his motion for attorneys’ fees in his suit against Aetna Life Insurance (“Aetna”), the administrator of his employee benefit plan. The district court denied Appellant’s motion for attorneys’ fees' on the grounds that attorneys’ fees could not be awarded against a plan administrator in an action for plan benefits. We revers...
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*564 Opinion Bayside Auto and Truck Sales, Inc. (Bayside) appeals from an order denying its petition for writ of mandate to compel the California Department of Transportation (Caltrans) to offer it for sale real property in San Francisco which it has leased from the state since 1973. The main contention here, as below, is that Caltrans had a mandatory duty to offer Bayside the la...
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13 F.3d 313 63 Empl. Prac. Dec. P 42,808, 2 A.D. Cases1587, 3 ADD 768,4 NDLR P 320 Robert L. CARPENTER, Plaintiff-Appellant,v.DEPARTMENT OF TRANSPORTATION; Samuel K. Skinner, Secretaryof the Department of Transportation; FederalHighway Administration, et al.,Defendants-Appellees.Robert L. CARPENTER, Plaintiff-Petitioner,v.DEPARTMENT OF TRANSPORTATION, et al., Defendants-Respondents. ...
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The primary issue in this trademark and unfair- competition case is whether color per se is protectable under the Lanham Act. This action involves a claim of trademark infringement and unfair competition. Quali-tex Company (“Qualitex”) contended that Ja *1300 cobson Products Company, Inc. (“Jacobson”) was manufacturing and selling green-gold press pads designed to look like the “SU...
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The Sentencing Guidelines permit a district court to depart downward if a defendant suffers from significantly reduced mental capacity that contributed to the commission of his or her offense. United States Sentencing Commission, Guidelines Manual, § 5K2.13 p.s. (Nov. 1991) (“U.S.S.G. § 5K2.13,” “§ 5K2.13”). The issue before us is whether the district court has the authority to depart downward pur...
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OPINION FACTS The debtor, Terry Alsberg, filed a petition under Chapter 11 of the Bankruptcy Code on May 29, 1987. 1 At that time, Alsberg owned and resided in a home at 1225 Prospect Street in Santa Cruz, California (the “Property”) which is the subject of the instant appeal. In his schedules and statements, Alsberg stated that the Property was worth $285,000. When Alsberg filed bankru...
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161 B.R. 672 (1993) In re Jack N. MARTIN, Debtor. Jack N. MARTIN, Appellant, v. FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Appellee. BAP No. EC-92-1005-RJP. Bankruptcy No. 91-22754-C-7. Adv. No. 91-2211. United States Bankruptcy Appellate Panel of the Ninth Circuit. Submitted Without Oral Argument September 3, 1993[1]. Decided December 14, 1993. *673 Oliver R. Lewis, Sacramento, CA, for debtor/app...
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Opinion We granted review in this case to determine whether Foley v. Interactive Data Corp. (1988) 47 Cal.Sd 654 [254 Cal.Rptr. 211, 765 P.2d 373] (Foley) precludes recovery of tort damages for fraud and deceit predicated on a misrepresentation made to effect termination of employment. Foley made clear that the employment relationship is “fundamentally contractual,” and that—terminations in viola...
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6 Cal.4th 1112 (1993) 864 P.2d 502 26 Cal. Rptr.2d 231 LAUREL HEIGHTS IMPROVEMENT ASSOCIATION OF SAN FRANCISCO, INC., Plaintiff and Appellant, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent. Docket No. S027252. Supreme Court of California. December 30, 1993. *1119 COUNSEL Kathryn R. Devincenzi for Plaintiff and Appellant. Joel Reynolds and Nora Chorover as Amici Curiae o...
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*1202Opinion Alberto Ochoa was convicted of two counts of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)) and one count of hit-and-run driving (Veh. Code, § 20001). He argued on appeal, among other contentions, that irrelevant and prejudicial evidence of his prior conviction for driving under the influence, his probationary status, and his attendance at an alcohol aw...
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6 Cal.4th 1152 (1993) 864 P.2d 488 26 Cal. Rptr.2d 217 RICHARD TRAVERSO, Plaintiff and Appellant, v. THE PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent. Docket No. S029371. Supreme Court of California. December 30, 1993. *1156 COUNSEL Joseph A. Forest and Terry J. Traktman for Plaintiff and Appellant. Ronald W. Beals as Amicus Curiae on behalf of Plaintiff and Appellant. Ch...
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Opinion In treating with the petition for writ of mandate filed August 27, 1993, by the People of the State of California and the Santa Monica Police Department, we are directly concerned only with the propriety of the superior court’s order of August 25, 1993, an order which required petitioners to return to The Wholesale Connection or its representatives approximately 1,120 car stereo c...
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Opinion In this action, we interpret certain provisions of the “Subletting and Subcontracting Fair Practices Act” (hereinafter, the Act) found in the Public Contract Code. (Pub. Contract Code, § 4100 et seq.; all subsequent references to sections are to this code unless otherwise specified.) The Act addresses the practices of bid shopping by a general contractor and bid peddling by a subc...
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Opinion This case involves liability for a tax mandated by article XIII, section 28 of the California Constitution. That provision imposes a tax on insurers, other than title insurers, doing business in this state. As pertinent, the constitutional provision provides: “[T]he ‘basis of the annual tax’ is, in respect to each year, the amount of gross premiums, less return premiums, received ...
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21 Cal.App.4th 684 (1993) 27 Cal. Rptr.2d 232 EARLE J. BAIRD, Cross-complainant and Respondent, v. CHUCK I. JONES et al., Cross-defendants and Appellants. Docket No. G013030. Court of Appeals of California, Fourth District, Division Three. December 29, 1993. *686 COUNSEL Michael G. York for Cross-defendants and Appellants. Oswald & Yap and Joseph M. Galosic for Cross-complainant and Responden...
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Opinion Dawn Dunn petitions for a writ of prohibition/mandate to challenge an order compelling her to testify against her husband in grand *723 jury proceedings, 1 contending she can invoke the marital privilege against such testimony. We deny the writ. Dunn was subpoenaed to testify before the grand jury concerning an investigation as to whether her husband k...
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Opinion Dorina S. appeals after the court terminated parental rights to her dependent daughter, Monique S., and referred Monique for adoptive placement under Welfare and Institutions Code1 section 366.26. Dorina contends the court lacked jurisdiction to set the selection and implementation hearing (§ 366.26) at the six-month review hearing (§ 366.21), rather than after a twelve-month hearing. The...
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Opinion Penal Code section 667 (hereafter, section 667) states in part that . . any person convicted of a serious felony who previously has been convicted of a serious felony . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” In the published portion of this ...
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13 F.3d 326 27 Fed.R.Serv.3d 1497 In re James Cy MOURADICK, Debtor.W. Bartley ANDERSON, Appellant,v.James Cy MOURADICK, Appellee.In re Richard D. KALASHIAN, Debtor.W. Bartley ANDERSON, Appellant,v.Richard D. KALASHIAN, Appellee. Nos. 92-16082, 92-16086. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 4, 1993.Decided Jan. 5, 1994. 1 W. Ba...
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13 F.3d 321 62 USLW 2422, 25 Bankr.Ct.Dec. 152, Bankr.L. Rep. P 75,708 In re UNICOM COMPUTER CORPORATION, aka Unicom CommunicationsCorporation, NCH Corp., and Unicom CapitalCorporation, Debtor.MITSUI MANUFACTURERS BANK, Appellant,v.UNICOM COMPUTER CORPORATION, Appellee. No. 92-15165. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 12, 1993.Decided Jan. ...
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Marianne Stanley,- former head coach of the women’s basketball team at the University of Southern California (USC), appeals from an order denying her motion for a preliminary injunction, against USC and Michael Garrett, the athletic director for USC (collectively USC). Coach Stanley contends that the district court abused its discretion in denying a preliminary injunction on the ground that she fa...
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Eusebio Diaz-Rosas was convicted of one count of possession with intent to distribute cocaine, and one count of conspiracy to possess with intent to distribute cocaine. He now appeals his conviction on the conspiracy charge, and his sentence of 108 months. The only significant issue is whether the district court erred in sentencing on the conspiracy charge when it included in calculating the amou...
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Juan Torres-Lopez appeals his sentence of 36 months of imprisonment imposed under the United States Sentencing Guidelines (Guidelines) following his conviction by guilty plea for transporting illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(B). Torres-Lopez contends that the district court erred by departing upward six levels based on circumstances surrounding a high-speed car chase that are ...
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13 F.3d 1276 62 USLW 2466, 1993-2 Trade Cases P 70,458 USA PETROLEUM COMPANY, Plaintiff-Appellant,v.ATLANTIC RICHFIELD COMPANY, Defendant-Appellee. No. 87-5681. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 16, 1992.Filed Aug. 12, 1992.Withdrawn from Submission March 17, 1993.Resubmitted July 7, 1993.Opinion Withdrawn Jan. 6, 1994.Order and Opinion D...
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Opinion Plaintiffs/appellants David Croeni et al., 1 appeal a judgment on the pleadings against them in their fraud action against defendant/ respondent Jeffrey S. Goldstein. Appellants contend the court erroneosly ruled they were not entitled to recover lost profits under Civil Code section 3343 2 against respondent, whose fraudulent misrepresentations induced them ...
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21 Cal.App.4th 787 (1994) 26 Cal. Rptr.2d 391 WILFRED D. COLLIN et al., Plaintiffs and Appellants, v. AMERICAN EMPIRE INSURANCE COMPANY, Defendant and Appellant. Docket No. B073231. Court of Appeals of California, Second District, Division Seven. January 5, 1994. *795 COUNSEL Daniels, Baratta & Fine and Lance Orloff for Plaintiffs and Appellants. Sonnenschein, Nath & Rosenthal, Michael A....
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*746 Opinion Petitioner appeals from a judgment denying his petition for a writ of mandamus ordering Kenneth Kizer, the Director (Director) of the Department of Health Services (Department) of the State of California to return the $173,014 paid by petitioner pursuant to an illegal sampling and extrapolation audit methodology utilized by the Department under the MediCal program. A...
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OPINION A bankruptcy trustee sought sanctions against several state court defendants for willful violation of the automatic stay of 11 U.S.C. § 362(a) when the state court, after determining that defense issues were not affected by the automatic stay, granted the defendants’ motion for a summary judgment, dismissed the lawsuit, and awarded them costs. The bankruptcy court ruled to the contrary,...
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*828 Opinion An information charged defendant, Damon Burns Campbell, with first degree burglary in count 1 (Pen. Code, § 459) 1 and with dissuading a witness by force or threat in count 2 (§ 136.1, subd. (c)(1)). Pursuant to a plea bargain, defendant pled guilty to count 2 and count 1 was dismissed. 2 The plea agreement provided for a grant of probation. The court granted defendant thre...
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Frank McCoy appeals the district court’s dismissal of his civil rights action, contending that the court erred by holding that the action was time barred. We agree, and reverse and remand for further proceedings. We decline to affirm on the alternative grounds raised by appellees. I. McCoy, a San Francisco Police Homicide Inspector, brought this civil rights action against the city and county...
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The Securities and Exchange Commission (“SEC”) brought this action against Gerald L. Rogers, president of the defendant Euro-bond Exchange, Ltd. (“Eurobond”), for violations of anti-fraud and registration provisions of the federal securities laws. The complaint charged Rogers with violating the registration provisions of Sections 5(a) and 5(c) of the Securities Act of 1933 (the “1933 Act”), 15 ...
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Contreras-Subias pled guilty to possession of marijuana with intent to distribute and money laundering. Due to a mistake in the phrasing of his plea agreement and in the sentence based on it, his prison term as worded was to run both concurrently with and consecutively to another federal sentence he was already serving. The clear intention of the plea agreement and the sentencing judge was th...
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Opinion James Watson appeals from a judgment entered in favor of defendants and respondents, State of California (State) and its employees, *839 Richard Grantham, Ramon Portales, M.D., Chichun Kau, M.D., and Rene Iway, M.D. Appellant brought suit against State based on its alleged failure to summon and provide medical care after he injured himself at the Santa Barbara County jail and was tran...
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OPINION The debtor appeals a bankruptcy court order determining a state court default judgment comprised of special, general, and punitive damages that arose out of a lawsuit for *686 assault and battery to be nondischargeable. We affirm. FACTUAL AND PROCEDURAL BACKGROUND In 1981, debtor-appellant, Mohammad Da-ghighfekr, assaulted appellee Laurence Mek-hail, breaking his jaw. Debtor ple...
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Appellants Lorimar Productions, Inc., American Broadcasting Company, Inc. and Coleman Luck appeal a jury verdict awarding Donald R. Boyle $3.6 million in punitive damages on breach of contract and fraud claims arising out of the parties’ agreement to transfer Boyle’s rights to a treatment for a television series to Lorimar. 1 The issue considered here is whether the California standa...
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Jerome Johnson and George Walker appeal from a judgment awarding them $250 ($125 each) in compensatory damages for the emotional harm suffered as a result of racial discrimination in refusing to rent them an apartment. They argue that this de minimis award is clearly erroneous in light of the evidence presented, the policy considerations applicable to the case, other similar cases and this Cour...
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On September 13, 1989 the National Labor Relations Board affirmed an Administrative Law Judge’s finding that the respondent Lee Hotel Corporation violated §§ 8(a)(1) and (3) of the National Labor Relations Act by discharging four of its employees for their involvement in union activity. The employees worked as cocktail waitresses and bartenders in the hotel’s bar and lounge. The Board affirmed ...
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Defendant Douglas Kienenberger appeals his convictions on five counts of willfully attempting to evade federal income taxes in violation of 26 U.S.C. § 7201 and seven counts of falsely representing a social security number in violation of 42 U.S.C. § 408(a)(2). The government cross-appeals, arguing that the district court erred in its application of the Sentencing Guidelines by not including “tax...
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Connie J. Wekell, formerly Mrs. Allotta, brought this action pursuant to 28 U.S.C. § 2410 seeking to remove a federal tax lien. She claims that the statute of limitations on collection of the tax had expired. The IRS counters that the statute was tolled by the Bankruptcy Code’s automatic stay, 11 U.S.C. § 362(a), making the lien timely. Many of the facts Ms. Wekell raises in support of her clai...
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Opinion Plaintiff Hand Electronics, Inc. (Hand) appeals from the trial court’s order granting the motion of defendants Snowline Joint Unified School District and Robyn Lee Phillips (collectively referred to as Snowline) for a new trial. Snowline has filed a protective cross-appeal from the judgment. We affirm the order granting a new trial; therefore, Snowline’s cross-appeal is moot. ...
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Opinion In an action arising from the sale of a business the trial court rendered a judgment in favor of the plaintiff-seller (Siligo) and against the defendant-buyer (Castellucci). 1 The judgment awarded Siligo limited contractual attorney fees by denying the bulk of fees which were apportioned to defense of a cross-complaint for fraud; it also ordered some of the attorney fee...
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Three years ago, we reversed the district court’s holding that the Bivens 1 complaint filed by plaintiffs Jerry L. Branch and his daughters Valenna and Colby Branch (collectively, Branch) could survive a motion to dismiss premised on the defense of qualified immunity. Branch v. Tunnell, 937 F.2d 1382 (9th Cir.1991) (Branch I). Branch alleged that de...
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FBI Agents Richard W. Held, Frank Doyle, Jr., David R. Williams, and John Rikes appeal the district court’s order denying their motion to dismiss certain claims in the Bivens 1 action filed against them by Judi Bari and Darryl Cherney. Bari and Chemey were injured when a bomb in Bari’s car exploded. Bari and Cherney filed a complaint (thrice amended) against the FBI Agents and numero...
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OVERVIEW Appellant United Food and Commercial Workers Union, Local 770 (“the Union”), filed a petition to compel arbitration on March 16, 1992, to require Appellee Geldin Meat Company, Irie. (“Geldin”) to arbitrate the Union’s grievance concerning Geldin’s alleged failure to provide its employees with health insurance as promised in the collective bargaining agreement. On March 26, 1992, t...
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13 F.3d 1361 UNITED STATES of America, Plaintiff-Appellee,v.Thomas James DEVLIN, Defendant-Appellant. No. 93-30000. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 5, 1993.Decided Jan. 12, 1994. Roderick K. Ermatinger, Attorneys, Inc., P.C., Missoula, MT, for defendant-appellant. Robert J. Brooks, Asst. U.S. Atty., Butte, MT, for plaintiff-...
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Opinion In their petition for writ of mandate, Irma and Agelio Aquino (plaintiffs) challenge the trial court’s order denying their petition for leave to amend their complaint for intentional and negligent infliction of emotional distress to add a claim for punitive damages pursuant to Code of Civil Procedure section 425.13. 1 Real parties in interest, Drs. Robert Reich-man, Fra...
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14 F.3d 34w UNITED STATES of America, Plaintiff-Appellee,v.John William FORRESTER, Defendant-Appellant. No. 93-10137. United States Court of Appeals,Ninth Circuit. Submitted Dec. 16, 1993*.Decided Jan. 13, 1994. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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13 F.3d 1378 LOUISIANA-PACIFIC CORPORATION; Port of Tacoma, Plaintiffs-Appellees,v.ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellant.v.William FJETLAND; B & L Trucking and Construction Co.,Inc.; Industrial Mineral Products, Inc.; Murray PacificCorporation; Portac, Inc.; Cascade Timber Company;Executive Bark Inc.; Wasser & Winters Company; EagleTrucking, Inc., Third...
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Opinion Juan Espinosa Cardenas held himself out to be a “curandero,” or faith healer, and rendered “treatment” to various female believers of the religion Curanderismo. His activities under this guise led to his conviction of six counts of grand theft (Pen. Code, § 487) and seventy counts of sexual misconduct (Pen. Code, §§ 289; 266c; 261, subd. (a)(2); *930 288, subd. (a); 2...
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21 Cal.App.4th 958 (1994) 26 Cal. Rptr.2d 460 JAMES M. EVANS, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Appellants. Docket Nos. C011373, C012371. Court of Appeals of California, Third District. January 12, 1994. *962 COUNSEL Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assistant Attorney General, Floyd D. Shimomura, Assistant Attorney General,...
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14 F.3d 1338 62 USLW 2516, Fed. Sec. L. Rep. P 98,024 Willis V. HAUSER, Rafael Acosta, Plaintiffs-Appellants,v.John FARRELL, Alvin Harvey, Rauscher, Pierce, Refsnes, Inc.,a California Corporation, Janice Industries, Inc.,d/b/a Janmar Lighting, a CaliforniaCorporation, Truman Aubrey,Defendants-Appellees. No. 91-16400. United States Court of Appeals,Ninth Circuit. Argued and Sub...
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William Eisen appeals a district court judgment. The district court affirmed the bankruptcy court, which dismissed his Chapter 13 petition for being filed in bad faith, and barred him from filing further bankruptcy petitions for 180 days. We affirm and remand to the district court to impose sanctions. On November 27, 1985 Eisen entered into a contract to sell a duplex to creditor Judith Day. Da...
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dissenting: I. Wherever the truth may lie, this case represents a family tragedy. It may also constitute a grave injustice. Allegations of sexual misconduct by one family member against another pose exceptional difficulties for the judicial system. In many instances, no one but the alleged perpetrator and the alleged victim is able to testify regarding what did or did not happen. The cases are exc...
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I A person who transports more than $10,-000 into or out of the United States must file a report with the federal government. See 31 U.S.C. § 5316 (1988). 1 The issue is whether a car used to export currency in violation of Section 5316’s reporting requirements may be forfeited under the Espionage Act, 22 U.S.C. § 401 (1988), which provides for the forfeiture of vehic...
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Opinion This appeal presents an issue which appears to be of first impression in California: the conflict of interest, or potential conflict of interest, occurring between a client and an attorney negotiating attorney fees as part of a settlement of the client’s case. We hold that where, as here, there is evidence that a conflict of interest arose between attorney and client which may hav...
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Opinion Warren Douglas Dickey was convicted by plea of possessing cocaine. (Health & Saf. Code, § 11350, subd. (b).) Proceedings were suspended and probation was granted upon certain terms and conditions, inter alia, the service of 68 days in county jail. Prior thereto, he unsuccessfully brought a motion pursuant to Penal Code section 1538.5. He appeals meritoriously contending that “. . ...
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21 Cal.App.4th 981 (1994) 26 Cal. Rptr.2d 541 LELAND ANGELL, Plaintiff and Appellant, v. PETERSON TRACTOR, INC., Defendant and Respondent. Docket No. C013344. Court of Appeals of California, Third District. January 12, 1994. *984 COUNSEL John Minoletti for Plaintiff and Appellant. Hoyt, Miller & Angstadt and Eric P. Angstadt for Defendant and Respondent. OPINION NICHOLSON, J. Is workers' comp...
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Opinion Alma B. appeals an order of the juvenile court identifying adoption as the permanent placement goal for her minor children Roberto *1039 and Alma 2 under Welfare and Institutions Code 3 section 366.26, subdivision (c)(2). Alma contends (1) the court erred in failing to find that termination of parental rights would not be detrimental to the minors, and (2) the evidence does not su...
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*1004 Opinion Los Angeles County Deputy Sheriff Roy Chester was killed in a helicopter crash while engaged in a drug interdiction operation in Imperial County. The helicopter was flown by Geoffrey Nett, an officer of the California National Guard, which provided air support to the state and federal law enforcement agencies engaged in the drug interdiction effort. Chester’s f...
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13 F.3d 1386 Guillermo CHARRY, Plaintiff-Appellant,v.STATE OF CALIFORNIA; California Youth Authority; Dan Hoy;John Sullivan; Daniel Boczek; Jacqueline Silva; ClydeMcDowell; Sheriff Sherman Block; Nate Garth; JerryMelnick; County of Los Angeles, a political subdivision ofthe State of California; and Does I through XX, inclusive,Defendants-Appellees. No. 92-55541. United States...
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The November 23, 1993 opinion of the court, sitting en banc, concluded: We remand to the panel to determine whether North Star’s claim is contractually or statutorily based, and any other issues presented by this appeal. North Star Alaska v. United States, 9 F.3d 1430, 1433 (9th Cir.1993) (en banc). Accordingly, we must determine whether North Star’s claim is contractually or statutorily ba...
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Robert E. Olsen petitions for review of an order by the National Transportation Safety Board affirming the revocation of his airframe and powerplant mechanic certificate. The NTSB had jurisdiction pursuant to 49 U.S.C.App. § 1429(a) over this challenge to the Federal Aviation Administration’s emergency order of revocation. We exercise jurisdiction pursuant to 49 U.S.C.App. § 1486(a) over Olsen’s ...
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Dan Demers appeals his sentence after pleading guilty to possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Demers contends that the district court erred in finding as a matter of law that he was not entitled to a minor or minimal participant adjustment pursuant to U.S.S.G. § 3B1.2. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction o...
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ORDER On October 20, 1992, the Panel filed its decision affirming the trial court. The published opinions issued are reported as In re Newbery, 145 B.R. 998 (9th Cir. BAP 1992). A notice of appeal to the Ninth Circuit Court of Appeals was filed on October 29, 1992. Subsequently, the parties reached a settlement of their dispute and Newbery Electric, Inc., filed a motion for a voluntary dism...
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The judgment of this Court, 988 F.2d 124 (Table), is vacated and the case is remanded to the district court for resentencing under the correct guidelines range (262-327 months), as asserted by the Solicitor General in his brief filed with the Supreme Court on August 6, 1993. The district court will be free on remand to consider whether departure is warranted. ...
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Opinion Petitioner David B. seeks a writ to require respondent court to set aside a judgment terminating his parental rights on the ground that he lacked notice. As explained below, we hold that a juvenile court in dependency proceedings has no power to vacate orders on the ground of lack of personal jurisdiction after an order terminating parental rights has become final in that court and we u...
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Opinion Summary The City and County of San Francisco (the City) is the defendant in a civil action brought by real party in interest, Richard L. Phillips (Phillips) seeking damages for personal injuries allegedly sustained as the result of the use of excessive force by San Francisco police officers. By petition for writ of mandate, the City challenges an order granting Phillips’s motion to co...
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Opinion Plaintiff MDFC Loan Corporation appeals from that portion of an order terminating a receivership directing the receiver to disburse the remaining funds in his possession to defendant Greenbrier Plaza Partners. These funds represent income received from commercial real property after Greenbrier defaulted on the underlying debt and plaintiff had a receiver appointed to assume contro...
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delivered the opinion of the Court. In this case, we address the question whether the statutory-review scheme in the Federal Mine Safety and Health Amendments Act of 1977, 91 Stat. 1290, as amended, 30 U. S. C. § 801 et seq. (1988 ed. and Supp. IV) (Mine Act or Act), prevents a district court from exercising subject-matter jurisdiction over a pre-enforcement challenge to the Act. We hold that it d...
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Appellant pro se, Cornelio R. Besinga, a World War II veteran of the Philippine Commonwealth Army, challenges the district court’s grant of summary judgment to the United’ States. He contends that the court erroneously rejected his constitutional challenge to the First Supplemental Surplus Appropriation Rescission Act of 1946. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291. We a...
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Opinion Following a jurisdiction hearing, the minor, Jermaine B., was found to have violated Penal Code section 459 (burglary) and Vehicle Code section 10851, subdivision (a) (vehicle theft). *1282 At the disposition hearing, the juvenile court continued the minor as a ward of the court and committed him to the California Youth Authority (CYA). The minor has appealed. In an unpublished po...
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Opinion The central issue in this appeal is whether a prisoner escaping from a county jail who neither personally used force or *1272 violence nor aided or abetted its use may nevertheless be convicted of forcible escape simply because other prisoners used force in their escape and the defendant prisoner merely took advantage of the situation. Disagreeing with People ...
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Opinion We are required by this case to decide whether public school districts sued in actions seeking declaratory and injunctive relief under the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) are entitled to a defense provided by their insurance carrier pursuant to liability policies covering “all sums which the Insured shall become obligated to pay as damages ....
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Opinion Steven F. appeals from an order adjudging him a ward of the juvenile court (Welf. & Inst. Code, 1 § 602) and committing him to the California Youth Authority (CYA) after he admitted to one count of robbery.' He was also ordered, inter alia, to pay a restitution fine of $150 pursuant to section 730.6. He raises two contentions on appeal: (1) the court abused its discreti...
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Opinion In this appeal, Epifano Miranda challenges his convictions of driving under the influence causing injury (Veh. Code, § 23153, subd. (a)) and vehicular manslaughter (Pen. Code, § 192, subd. (c)(1)), arguing these offenses are necessarily included within gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5, subd. (a)). We agree with appellant’s contention and reverse the con...
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14 F.3d 1380 30 Collier Bankr.Cas.2d 792 In re UNITED INSURANCE MANAGEMENT, INC., Debtor.ERNST & YOUNG, as successor-in-interest to Arthur Young &Company; Karl A. Haushalter, Jr., Plaintiffs-Appellants,v.Robert K. MATSUMOTO, Trustee for Debtor United InsuranceManagement, Inc. and Paul I. Brown, Defendants-Appellees. No. 92-16397. United States Court of Appeals,Ninth Circui...
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14 F.3d 1374 62 USLW 2471, 17 Employee Benefits Cas. 2298 Ernest F. MODZELEWSKI, Plaintiff-Appellant,v.RESOLUTION TRUST CORPORATION, as Receiver for MeraBank, aFederal Savings Bank, Defendant-Appellee.Gene E. RICE, Plaintiff-Appellant,v.RESOLUTION TRUST CORPORATION, as Receiver for MeraBank, aFederal Savings Bank, Defendant-Appellee. Nos. 92-15670, 92-15865. United States Court of ...
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15 F.3d 131 UNITED STATES of America, Plaintiff-Appellee,v.Macario DURAN, Defendant-Appellant. No. 91-50177. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 2, 1993.Decided Jan. 20, 1994. Terrence A. Roden, and Russell Cole, Law Offices of Paul R. DePasquale, Los Angeles, CA, for defendant-appellant. Jeffrey C. Eglash, Asst. U.S. Atty., Los ...
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Joseph Christopher Fontenot (Fontenot) appeals from his conviction and sentence for traveling in interstate commerce with intent *1367 to hire a person to murder his wife, in violation of 18 U.S.C. § 1958. 1 We affirm. FACTS While vacationing in San Francisco with his girlfriend, Suzanna Walton (Walton), during the week of June 7, 1990, Fontenot hired a limousi...
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Opinion Minors Jose M. and Alan A. appeal from juvenile court judgments following their joint trial on petitions alleging two counts each of rape in concert plus great bodily injury enhancements (Pen. Code, §§ 264.1, 12022.8). 1 The counts represented two assaults on Yahaira P., one of them in which Alan allegedly raped her with Jose aiding and abetting, and the other with the ...
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Opinion As amended in 1992, 1 Government Code section 13967, subdivision (a) (hereafter § 13967(a)), provides in relevant part: “[I]f the person is convicted of one or more felony offenses, the court shall impose a . . . restitution fine of not less than two hundred dollars ($200), subject to the defendant’s ability to pay . . . .” (Italics added.) Penal Code se...
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Opinion Joe Brown appeals the trial court’s dismissal of his complaint for inverse condemnation against the State of California (State). The action was dismissed after the court sustained the State’s demurrer without leave to amend. I Factual Background In October 1990, Joe Brown filed suit against, inter alia, the State for inverse condemnation. Holding promissory note...
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Opinion In this case, where the People made no effort to locate Michael John Stabio for prosecution for more than four years after criminal complaints were filed, we examine whether the lengthy delay between the filing of the complaint and Stabio’s arrest violated his federal and state constitutional rights to a speedy trial. As we shall explain, we conclude Stabio has met the applic...
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14 F.3d 1387w UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant,andRobert Rozelle; Aaron Hampton; Freddie Mack; SheltonAuntwan Martin, Defendants-Appellees.UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee. Nos. 93-50031, 93-50057. United States Court of Appea...
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OPINION A jury found appellant Louis Pinkney guilty of various counts relating to the armed robbery of welfare checks from a postal worker. He appeals his conviction on one of these counts: conspiracy to rob a mail custodian, 18 U.S.C. § 371. He also appeals his sentence, challenging both the three-level enhancement for use of a firearm during the robbery, U.S.S.G. § 2B3.1(b)(2)(C), and t...
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*1510 Opinion Alexander Sinclair, M.D., appeals from an order denying his petition to compel arbitration of Gary Mormile’s loss of consortium claim. We reverse. Discussion When Mary Mormile first consulted with Sinclair for medical treatment, she signed a physician/patient agreement which provided inter alia: “All Claims Must Be Arbitrated: It is the intention of the parties that this a...
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delivered the opinion of the Court. Michael Manso gave his employer a false excuse for being late to work and repeated that falsehood while testifying under oath before an Administrative Law Judge (ALJ). Notwithstanding Manso’s dishonesty, the National Labor Relations Board (Board) ordered Manso’s former employer to reinstate him with backpay. Our interest in preserving the integrity of administra...
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delivered the opinion of the Court. The power of state and local governments to impose ad valorem property taxes upon railroads and other interstate *335carriers has been the source of recurrent litigation under the Commerce Clause and the Due Process Clause. See, e.g., Central R. Co. of Pa. v. Pennsylvania, 370 U. S. 607 (1962); Braniff Airways, Inc. v. Nebraska Bd. of Equalization and Assessment...
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delivered the opinion of the Court. Seven commercial airlines, petitioners in this case, assert that certain airport user fees charged to them are unreasonable and discriminatory, in violation of the federal Anti-Head Tax Act (AHTA), 49 U, S. C. App. § 1513, and the Commerce Clause. Because the record, as it now stands, does not warrant a judicial determination that the fees in question are unreas...
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14 F.3d 1405 1994 A.M.C. 1275, 127 Lab.Cas. P 10,979,1 Wage & Hour Cas. 2d (BNA) 1381 Rita FULLER, Babbette Thayer, Thomas Wilson, and the classof similarly situated persons who have workedaboard the F/T Michelle Irene,Plaintiffs-Appellants,v.GOLDEN AGE FISHERIES, Simonson Enterprises V, Inc., MichelleIrene Joint Venture, Westcod II, Inc., BTI IV,Inc., et al., Defendants-Appellees. ...
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14 F.3d 1398 89 Ed. Law Rep. 57, 4 A.D.D. 75 SACRAMENTO CITY UNIFIED SCHOOL DISTRICT, BOARD OF EDUCATION,Plaintiff-Appellant,v.RACHEL H., By and Through her guardian ad litem, RobertHOLLAND; William Honig, California State Superintendent ofPublic Instruction; California State Department ofEducation Hearing Office, McGeorge School of Law; and MaryCote, Hearing Officer, Defendants-Appelle...
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Wayne Rodney Heim, Dwayne Keith Fit-zen, Dyan Jones and Steven R. Britenbach appeal their convictions for conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846. Britenbach also appeals his convictions on six counts of violating the Travel Act, 18'U.S.C. § 1952. Ml four defendants appeal their sentences. We have jurisdiction over their appeals pursuant to 28...
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15 F.3d 134 UNITED STATES of America, Plaintiff-Appellee,v.Clifford K. KENNELL, Defendant-Appellant. No. 93-30122. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1, 1993.Decided Jan. 24, 1994. Patrick K. Stiley, Stiley & Kodis, Spokane, WA, for defendant-appellant. Robert A. Ellis, Asst. U.S. Atty., Yakima, WA, for plaintiff-appellee. ...
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Opinion Virginia Le Elder, through her guardian ad litem, Lawrence S. Eisenberg, and Le Hang Le appeal a judgment in favor of McDonnell Douglas Corporation. Le Elder attempted to hold McDonnell Douglas liable under a respondeat superior theory for the alleged negligence of its employee, Dennis Lee Rice. The complaint alleged Rice was acting within the scope of his employment when his vehi...
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Opinion Petitioners Regan Roofing Company, Inc., and Vince Ramirez doing business as Pacific Rebar (collectively Regan Roofing) challenge certain aspects of a pretrial settlement reached between 44 individual homeowners (Kenn Finkelstein et al., collectively plaintiffs) and the developer of plaintiffs’ homes, Leisure Technology Corporation of Oceanside (developer). Pursuant to Code of Civil Proce...
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Opinion On these facts: a felony probationer, in violation of the terms of probation, commits a new offense; the prosecutor files felony criminal charges for the new offense; while a probation revocation hearing is pending, the prosecutor voluntarily dismisses the new case; after hearing, probation is revoked and reinstated without imposition of a prison commitment; the prosecutor refiles felon...
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Opinion Appellant Miguel Angel Lopez appeals from a judgment after jury verdict convicting him of three conspiracy counts. He raises issues concerning admission of evidence, and he contends the evidence is insufficient as to two of the counts. We reject his specific claims; however, we reverse counts two and three for the related reason that the evidence demonstrated but one prosecutable ...
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Opinion — Larry Dale Pritchett, claiming ineffective assistance of trial counsel, challenges a term enhancement under Penal Code section 12022.5, *1756 subdivision (a). 1 The court added three years under that section for use of a firearm in the commission of the crime of possession of the same weapon, a short-barreled shotgun. (§ 12020, subd. (a).) We conclude the enhancement does not appl...
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BACKGROUND On October 21,1993, petitioner Jaime Por-tillo pled guilty to stealing a vacuum cleaner, a baby stroller, a child’s car seat and a cellular telephone from a military base in violation of 18 U.S.C. § 661. The matter was scheduled for sentencing on January 3,1994.1 At that time the district court directed the probation officer to prepare a presentence report and ordered Portillo to assi...
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A Navy employee’s briefcase fell from an airplane’s overhead storage compartment when a flight attendant opened it, hitting a passenger on the head. The passenger sued USAir in state court and recovered. USAir now • appeals from a district court decision denying it indemnity and/or contribution under the Federal Tort Claims Act against the United States Department of the Navy. FACTS AND PR...
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Javier Vasquez-Velaseo was convicted in a jury trial of committing violent crimes in aid of a racketeering enterprise in violation of 18 U.S.C. § 1959. Vasquez-Velaseo appeals the district court’s denial of his motion to dismiss for lack of subject matter jurisdiction. He also argues that his trial was improperly joined, and appeals the district court’s denial of his motions for severance. Fina...
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ORDER Rolf M. Kehne seeks to appeal the district court’s dismissal of a petition for a writ of habeas corpus and requests a certificate of probable cause and a stay of execution as a “next friend” of Keith Eugene Wells. Finding this ease controlled by Brewer v. Lewis, 989 F.2d 1021 (9th Cir.1993), we deny the certificate of probable cause and the application for a stay. I. Keith Eugene We...
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6 Cal.4th 1212 (1994) 865 P.2d 56 26 Cal. Rptr.2d 623 ALFREDO A., a Minor, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. S024618. Supreme Court of California. January 24, 1994. *1214 COUNSEL Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Sue Robin Pollock and John Hamilton Scott, Deputy Public Defenders, for...
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Opinion In this case, we hold that a trial court has the authority to determine the identity of the “prevailing party” in litigation, within the meaning of Civil Code 1 section 1354, for purposes of awarding attorney fees; and that a defendant dismissed without prejudice in an action to enforce equitable servitudes thereunder is not, ipso facto, such prevailing party. I. F...
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*1563Opinion The People appeal an order dismissing an information which charged respondent, Anthony McDaniels, with possession of cocaine base for sale (Health & Saf. Code, § 11351.5) on April 15, 1992. The dismissal was ordered on the court’s own motion after it granted an evidence suppression motion and the People then indicated they were unable to go forward with the case. We reverse. Factual ...
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Opinion James Johnson Bey appeals from judgment of conviction by jury trial of first degree murder. (Pen. Code, § 187; all further statutory references are to the Penal Code unless otherwise indicated.) He argues that statements he made to police were used to impeach his testimony in violation of his rights under the Fifth and Fourteenth Amendments to the United States Constitution. We agree, b...
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Opinion Appellant Kirkwood Meadows Public Utilities District (the District) appeals from the trial court’s issuance of a writ of administrative mandamus commanding the District to reinstate William K. Graham as an employee of the District. The District contends the trial court erred in concluding the District’s employee residency requirement was unlawful. We shall reverse. Factual an...
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Opinion Fireman’s Fund Insurance Company (Fireman’s) appeals from an order dismissing its complaint after summary judgment was entered in favor of respondent Maryland Casualty Company (Maryland). 1 Fireman’s suit against Maryland sought reimbursement for some or all of the funds Fireman’s had advanced to settle a lawsuit by a third party. Fireman’s contended Maryland improperly...
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Opinion Joseph Manuel Gonzales appeals a judgment convicting him of kidnapping for robbery (Pen. Code, 1 § 209, subd. (b)). He contends the trial court erred in instructing the jury by using a modified version of CALJIC No. 9.54 pertaining to kidnap for robbery, claiming the *1650 modification amounted to a directed verdict on one element of the offense depriving him of his right to a jury ...
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Opinion Charles S. Nicholson III, D.D.S., appeals from the judgment of dismissal following the grant of summary judgment in favor of respondents John W. Lucas, D.D.S., Bakersfield Memorial Hospital, C. Larry Carr and Charles S. Ashmore, M.D., on appellant’s third amended complaint which alleged malicious prosecution of an administrative proceeding. Appellant contends the bases upon which ...
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American States Insurance Company (American States) appeals from the district court’s judgment dismissing its declaratory relief action for lack of jurisdiction. American States sought to establish that under the insurance policy at issue, it has no duty to indemnify or defend Kearns, doing business as Tahoe Boat Company (Tahoe Boat) in a suit brought against Tahoe Boat in state court. The distric...
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15 F.3d 138 73 A.F.T.R.2d (RIA) 94-1002 David C. MAPES, Jr.; Nancy Dodds; Mary Gail Hentzen,Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 92-15351. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 10, 1993.Decided Jan. 26, 1994. David M. Kirsch, San Jose, CA, for plaintiffs-appellants. Robert L. Baker, U.S. D...
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FACTS Plaintiffs in May 1988 filed this class action in the district court against Maxicare Health Plans, Inc. .(“Maxicare”) and others. The complaint alleged violations of federal securities laws in connection with the sale of Maxi-care securities, for which Salomon Brothers Inc., Montgomery Securities, and Ernst & Young (or its predecessor in interest, Ernst & Whinney) (collectively “Appellants”...
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162 B.R. 841 (1994) In re Emil NOURBAKHSH and Marlene Nourbakhsh, Debtors. Emil NOURBAKHSH, Appellant, v. John GAYDEN, Jr., and Miriam Gayden, Appellees. BAP No. SC-92-1615-AsRO. Bankruptcy No. 90-05884. Adv. No. 90-90529. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted March 17, 1993. Decided January 10, 1994. *842 Bernard Edwin Galitz, Poway, CA, for debtors/...
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Opinion We consider whether the Employee Retirement Income Security Act of 1974 (ERISA), 29 United States Code section 1001 et seq., *1676 preempts an action brought under state law for wrongful termination where an employee was terminated for not returning to work when medically cleared by his employer’s physicians. “ERISA includes a ‘virtually unique pre-emption provis...
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Opinion Steven Hartunian and Sumitomo Tower, Ltd. (defendants), attempted to derail a fast track case through evasive answers to discovery. As a sanction for this conduct, the trial court ordered defendants’ answer struck. Defendants appeal from the ensuing default judgment. We affirm the judgment and impose sanctions against defendants and their attorneys for having prosecuted a frivolou...
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Opinion Michael and Sylvia Heller appeal from the trial court’s grant of summary judgment in favor of the Franchise Tax Board. (Code Civ. Proc., § 437c.) Although this appeal involves the tax liability of the Hellers as individuals, its resolution turns on whether the accumulated adjustments account (AAA) of a California S corporation is increased for interest income earned on United Stat...
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15 F.3d 145 Johnny Ray MAHON, Plaintiff-Appellant,v.COUNTY OF LOS ANGELES, Los Angeles Superior Court, T.Wilson, Burdette Harris, Frank Nmi Zolin,Defendants-Appellees. No. 92-56479. United States Court of Appeals,Ninth Circuit. Jan. 27, 1994. Stephen Madison, Asst. U.S. Atty., Ira Reiner, Dist. Atty., Office of County Counsel, Los Angeles, CA, for defendants-appellees. ...
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Opinion After denial of his claim for the proceeds of a lottery ticket, in October of 1991 appellant filed an action against the California State Lottery Commission (hereafter respondent or the Commission) for damages in the amount of $50,000. Appellant alleged that he purchased a winning ticket in the “Joker’s Wild” game, but through “oversight” mistakenly *1742 mailed the ticket to the “Sec...
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Opinion Here we hold that Civil Code 1 section 3267 does not preclude third tier subcontractors and material suppliers from a right of action on a payment bond. *1764 Facts Riverglen Investments, Ltd., sought to develop a subdivision in the City of El Paso de Robles (the City). The subdivision agreement with the City required the construction of certain offsite public improvements for w...
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15 F.3d 146 Virginia Marie GRANT, Plaintiff-Appellee,v.Lee JOHNSON, Multnomah County Circuit Court Judge, in hisofficial capacity, Defendant-Appellant.Virginia Marie GRANT, Plaintiff-Appellant,v.Lee JOHNSON, Multnomah County Circuit Court Judge, in hisofficial capacity, Defendant-Appellee. Nos. 91-35572, 91-35616. United States Court of Appeals,Ninth Circuit. Argued and Submitted S...
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15 F.3d 1500 29 U.S.P.Q.2d 1610 IOLAB CORPORATION, Plaintiff-Appellant,v.SEABOARD SURETY COMPANY; Employers Reinsurance Corporation;Republic Insurance; Lexington Insurance Company;Employers Insurance of Wausau; Allstate Insurance Company;Granite State Insurance Company; National Union FireInsurance Company of Pittsburgh, Pa.; North River InsuranceCompany et al.; American Motorists In...
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Following a jury trial, Antonio McKinney was convicted of conspiracy, 18 U.S.C. § 371; armed bank robbery, 18 U.S.C. § 2113(a) & (d); and using a firearm during a crime of violence, 18 U.S.C. § 924(c)(1). He was sentenced to 106 months imprisonment. On appeal, McKinney challenges both his conviction and his sentence. In an unpublished memorandum filed concurrently, we reject McKinney’s challeng...
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15 F.3d 149 UNITED STATES of America, Plaintiff-Appellee,v.Manuel Antonio VALENCIA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Maria Marleny LOAIZA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Juana LOPEZ, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Miguel Antonio CARMONA-ARROYAVE, Defendant-Appellant. Nos. 92-30458, 92-...
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We are called upon to consider unusual issues surrounding an inmate’s claim that he was placed into disciplinary segregation without a hearing in violation of his right to procedural due process. I Walker is a federal prisoner who at the time of the events underlying this lawsuit was housed at Nevada State Prison (“NSP”) pursuant to a reciprocal contract with federal authorities. On July 26, ...
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OPINION The debtor, Edith Helga Beatty, requested dismissal of her Chapter 13 case following the bankruptcy court’s oral decision granting a motion to convert but prior to the entry of a written order. The bankruptcy court entered orders vacating the dismissal nunc pro tunc and entered an order converting the case. The debtor appeals. We REVERSE the bankruptcy court’s decision. F...
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Opinion Theresa Adler appeals from an order awarding attorney fees pursuant to Code of Civil Procedure section 527.6, subdivision (h). 1 She asserts that the court cannot award a defendant attorney fees where she has been deprived of the opportunity to proceed to a full, due process *1773 hearing under section 527.6 through no fault of her own and that where the plaintiff has a temporary re...
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Opinion The workers’ compensation judge (WCJ) found that petitioner, Carlos Rodriguez (applicant), sustained an industrial injury to his right knee, back, and right foot during his employment by respondents Jerseymaid Milk Products and the Vons Companies, Inc., that applicant did not sustain an industrial psychiatric injury, and that applicant does not need further medical treatment to cure or ...
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Opinion In this case we must decide whether the longstanding, statutory prohibition against the practice of law by persons not admitted to the bar has been abrogated by the more recently adopted Uniform Statutory Form Power of Attorney Act (Power of Attorney Act). *1828 (Civ. Code, 1 §§ 2475-2499.5, added Stats. 1990, ch. 986 (Sen. Bill No. 1777).) We specifically ...
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Opinion After Sonia Sanchez obtained a stipulated judgment against L & C Janitorial Service Co. (L & C) and its owner, Cleveland Cadle, she brought a direct action against L & C’s insurer, Truck Insurance *1781 Exchange (Truck), as authorized by Insurance Code section 11580. 1 Truck demurred, and the court sustained its demurrer without leave to amend on the ground...
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Opinion The National Collegiate Athletic Association (NCAA) sponsors and regulates intercollegiate athletic competition throughout the United States. Under the NCAA’s drug testing program, randomly selected college student athletes competing in postseason championships and football bowl games are required to provide samples of their urine under closely monitored conditions. Urine samples are chem...
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Opinion This case involves a dispute between the designated beneficiary of a deceased county employee and the county retirement board over entitlement to death benefits payable under Government Code section 31780 et seq. 1 The trial court ruled against the designated beneficiary. We affirm. *1799 Facts and Proceedings Below The facts are undisputed. Dr. Abdol Fatemi died while an employ...
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Opinion In this action the trial court adjudicated competing claims to a $35,000 arbitration award against Allstate Insurance Company and in favor of Michael Wujcik resulting from injuries Mr. Wujcik suffered in an automobile accident. Numerous medical providers and the attorney who represented Mr. Wujcik- in the personal injury action claimed contractual liens against the award totaling ...
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Opinion In this criminal prosecution for misappropriation of public moneys by a public officer (Pen. Code, 1 § 424), removal of public documents (Gov. Code, § 6200), and conspiracy to violate the personal liberty of another (§§ 182, 236), petitioner Michael D. Bunnell filed a petition for writ of prohibition or mandate in this court, challenging the trial court’s denial of his ...
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Opinion In this appeal we consider whether a full credit bid at a nonjudicial foreclosure sale extinguishes all claims of a lender against the participants in a tortious conspiracy to defraud the lender, none of whom is the buyer. We shall conclude it does. The trial court also concluded it did and entered summary judgment for the defendant conspirators. Plaintiff lender contends its clai...
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15 F.3d 1507 62 USLW 2485 Aaron FOX; Toni Fox, husband and wife, Plaintiffs-Appellants,v.CITICORP CREDIT SERVICES, INC., a South Dakota corporation;Jerold Kaplan; Jane Doe Kaplan, husband and wife,Defendants-Appellees. No. 91-16476. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 4, 1993.Feb. 1, 1994. Esther B. Simon and Peter M. Balsino, Ar...
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OPINION Peltier appeals pro se the district court’s dismissal of his petition for writ of habeas corpus. His petition alleges that the imposition by the Idaho state court of a sentence of twenty years imprisonment upon revocation of his probation violated his right under the fifth and fourteenth amendments against being placed twice in jeopardy for the same offense. We review the denial of a pe...
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Petitioner, 1 Masood Shirazi-Parsa, and his wife, Georgina Shirazi-Parsa, petition this court for review of a final order of the Board of Immigration Appeals (“BIA” or “Board”) that denied their request for asylum pursuant to 8 U.S.C. § 1158(a) but granted them voluntary departure under 8 U.S.C. § 1254(e). 2 We reverse the decision of the Board and remand for further proce...
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15 F.3d 1519 89 Ed. Law Rep. 449, 4 A.D.D. 33 UNION SCHOOL DISTRICT, Plaintiff-Appellant,v.B. SMITH, defendants 2-7 Under Seal, Defendants-Appellees.UNION SCHOOL DISTRICT, Plaintiff,v.B. SMITH, defendants 2-7 Under Seal, Defendants-Appellees,andCalifornia Department of Education, CaliforniaSuperintendent of Public Instruction, Bill Honig,Defendants-Appellants. Nos. 91-16546, 91-16595. ...
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ORDER The opinion filed in this case on July 8, 1993, 999 F.2d 392, is ordered withdrawn. In its place, the opinion that follows is ordered filed. OPINION Ralph G. Hatley appeals his conviction for three counts of distribution of cocaine and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Hatley alleges on appeal that a search by polic...
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I OVERVIEW Juan Paul Robertson (Robertson) appeals his jury convictions for conspiracy and possession of cocaine with intent to distribute (Counts One through Four) and RICO (Count Six). Because we conclude that the Government failed to prove that the enterprise affected interstate commerce, we reverse the RICO count. We affirm the remaining Counts One through Four, but vacate the sentences with...
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Opinion Penal Code section 26 articulates a presumption that a minor under the age of 14 is incapable of committing a crime. (Pen. Code, §26, subd. One.)1 To defeat, the presumption, the People must show by “clear proof” that at the time the minor committed the charged act, he or she *232knew of its wrongfulness. This provision applies to proceedings under Welfare and Institutions Code section 602...
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Opinion In this case we determine whether the trial court properly instructed the jury on assault and assault with a deadly weapon (Pen. Code, §§ 240,245). To do so, we again analyze the intent or mental state necessary to establish these offenses and “hopefully eliminate the contusion on this issue which has developed throughout the courts of this state.” (People v. Rocha (1971) 3 Cal.3d 893, 89...
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Opinion Two years after the Department of Forestry and Fire Protection (department) approved a timber harvesting plan submitted by Louisiana-Pacific Corporation, the Board of Forestry (board) adopted emergency regulations, later made permanent, designed to protect the northern spotted owl. (Cal. Code Regs., tit. 14, §§ 919.9 and 919.10 [hereafter generally, rules].) The Court of Appeal or...
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Opinion creditor to give notice of an action seeking to set aside a debtor’s fraudulent transfer of real property. We conclude such an action affects title to real property within the meaning of lis pendens law and will support a notice of lis pendens. However, creditors who misuse the procedure should be severely sanctioned. *69 Hunting World, Incorporated (Hunting World), c...
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*78 Opinion order granting the petition of respondent Cloy McDaniel for writ of mandate. In 1987, the DMV revoked McDaniel’s driver’s license for four years pursuant to Vehicle Code section 13352, subdivision (a)(7), 1 which requires license revocation upon a fourth drunk driving conviction. In the petition, McDaniel sought an order requiring the DMV to consider and accept his application f...
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Opinion —Defendant appeals from a judgment revoking probation and sentencing him to an aggregate term of five years in prison. He argues that when the Mendocino trial court revoked his probation and sentenced him, it violated Penal Code section 669 1 by ordering his San Diego County sentence to run consecutively to his Mendocino County sentence. We affirm. Facts and Procedure In July 1990...
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Opinion Boris Pribich appeals after a jury convicted him of one count of the theft of trade secrets (Pen. Code, § 499c, subd. (b)(2)) and found the offense to be a misdemeanor petty theft. The court suspended imposition of sentence, placed appellant on summary probation for three years, ordered him to pay restitution of $400, and stayed payment of a $1,000 fine. Appellant contends that the evid...
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Opinion In this appeal, we conclude that respondent State Compensation Insurance Fund (SCIF) may impose “surcharges” as part of the premiums charged to its insureds. However, such surcharges must be reasonably and fairly imposed and are subject to administrative review. Accordingly, we affirm the decision of the trial court. Background Appellant P. W. Stephens, Inc. (appellant) provides res...
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Opinion complaint for declaratory relief, settlements among some alleged joint tort-feasors as cross-defendants in cross-complaints in that action for implied equitable comparative indemnity and contribution, but not involving any of the tort plaintiffs in separate actions, are not subject to a good faith determination under Code of Civil Procedure section 877.6 1 because there ...
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Opinion conviction of second degree murder (Pen. Code, § 187) with a finding that a principal was armed with a firearm (Pen. Code, § 12022, subd. (a)(1)). He contends the trial court erred in refusing him a free transcript of the trial proceedings against severed codefendant Jack Riley, and that the court made instructional errors. The contentions are without merit. The judgment is affirmed. ...
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Opinion plaintiff and the defendants appeal from a judgment awarding damages against the defendants for breach of contract and for the tortious denial of the existence of a contract, but denying the plaintiff any prejudgment interest. We modify the judgment to add the prejudgment interest and affirm as modified. Factual and Procedural Background Goldmine Ski Associates, Inc. (Gol...
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Opinion section 473, requiring a trial court to vacate a default, default judgment, or dismissal if the aggrieved party’s attorney submits a timely application for relief “in proper form, . . . accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect,” apply to a motion under Government Code section 946.6 for relief from the claim-fil...
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Border Patrol agents, looking for aliens and drugs along a trail well traveled with both, came upon Gilbert Santa Maria’s property and, without consent, searched a trailer near his mobile home for drugs. They discovered burlap bags of marijuana. The district court found that the trailer was outside the curtilage; held that the search was authorized under 8 U.S.C. § 1357(a)(3), which permits acces...
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Opinion In this case we must determine whether a life insurance policy covering loss of life occurring as the direct result of bodily injury inflicted solely by “external, violent and accidental means” provides coverage when the insured’s voluntary ingestion of cocaine resulted in a lethal overdose. Plaintiffs, beneficiaries of the insured, contend that the drug overdose was accidental and theref...
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Opinion —Richard Overton petitions for a writ of mandate compelling Superior Court Judge David O. Carter to disqualify himself from further *114 proceedings in Overton’s pending murder case, contending disqualification was mandatory under Code of Civil Procedure section 170.6. 1 We grant the petition. In July 1993 we issued a writ of mandate compelling the trial court to declare a mistria...
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Opinion a vehicle (Pen. Code, § 459), declared him a ward, and placed him with his parents. Gaspar contends the court improperly suspended his driver’s license (Veh. Code, 1 § 13350) as a condition of probation. We affirm. Facts About 2 a.m. on May 8, 1992, Erin Edwards heard a car outside her home. A blue car with a white top was parked across her driveway. A man was sitting in it. In th...
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Opinion accomplice during a robbery gone awry, Dung Van Mai complains of the trial court’s failure to modify CALJIC No. 8.12, challenges the constitutionality of CALJIC No. 2.90, and attacks the sufficiency of the evidence to support one of four convictions for attempted robbery. We agree CALJIC No. 8.12 is deficient in several respects and the court should have modified it as requested by the ...
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Opinion seeks review of the decision and order of the Agricultural Labor Relations *142 Board (ALRB) in this technical refusal to bargain case. ALRB found that Scheid committed an unfair labor practice in violation of Labor Code section 1153, subdivision (e) by refusing to bargain with the United Farm Workers of America, AFL-CIO (UFW), which had been properly certified in a 1992 election as t...
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This appeal involves one of two class actions arising out of the alleged contamination of stream water by the discharge of radioactive material from the Rancho Seco nuclear power plant located in Sacramento County, California. I A class of approximately 200 people living in the vicinity of Rancho Seco (collectively “AMns”), sued the plant’s owner and operator, the Sacramento Municipal Utility...
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16 F.3d 313 62 USLW 2530, Bankr. L. Rep. P 75,694 In re KEMP PACIFIC FISHERIES, INC., A Washingtoncorporation, Debtor.Thomas HANSEN, trustee of the Kemp Pacific Fisheries, Inc.,bankruptcy estate, Plaintiff-Appellee,v.MacDONALD MEAT COMPANY, A Washington corporation, Defendant-Appellant. No. 92-36631. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1...
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Defendant Harry Armondo Dorri appeals his conviction for soliciting a bribe pursuant to 18 U.S.C. § 201(b)(2)(A). The only issue on appeal is whether the district court erred by failing to respond more explicitly to an inquiry by a deliberating jury concerning the definition of the word “corruptly.” Finding no error, we affirm the ruling of the district court. THE FACTS Dorri was an employee of th...
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ORDER Rodney King has filed a petition for a writ of mandamus seeking to have Judge John G. Davies disqualified from presiding at the trial of his civil damage action against the City of Los Angeles and the officers involved in his beating. We deny his petition. The statutory provision underlying King’s mandamus petition, 28 U.S.C. § 455(a), states that “[a]ny justice, judge or magistrate of the U...
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*859 ORDER DENYING MOTION TO DISMISS Appellee Walter T. Thompson, Ch. 7 Trustee, (“Trustee”) filed a motion to dismiss this appeal based on an untimely notice of appeal, contending appellant filed the notice of appeal beyond the time limits of Federal Rules of Bankruptcy Procedure 8002 and 9023. The order on appeal denied appellant’s motion to reconsider the bankruptcy court’s app...
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*4 Opinion court properly imposed a previously stayed commitment to a county institution. We find no error. Facts Defendant, Kazuo G., a juvenile, was charged in an original petition filed in March 1991 with six offenses. 1 Defendant admitted two of the felony offenses and the two misdemeanors. The remaining counts were dismissed. The juvenile court committed ...
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Opinion —In this tax refund case the County of San Diego (County) appeals from the judgment of the trial court which ordered County to reduce the assessment on certain property. The primary issue on appeal involves the proper application of Revenue and Taxation Code 2 *156 section 1604. Under section 1604, when a taxpayer applies for reduction of an assessment, the Ass...
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In this case we are calléd upon to decide whether the Tax Court erred by invalidating a federal income tax regulation on the ground that it was inconsistent with its governing statute. For the reasons which follow, we affirm that decision. FACTS AND PRIOR PROCEEDINGS In December 1978 Ann Gavit Jackson (“Jackson”) established The Ann Jackson Family Foundation (“Foundation”), a private,...
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16 F.3d 323 Tsion M. KAHSSAI, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-70289. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1993.Decided Feb. 4, 1994. Dan P. Danilov, Seattle, Washington, for the petitioner. Donald Couvillon, United States Department of Justice, Washington, D.C., for the respondent. ...
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16 F.3d 317 UNITED STATES of America, Plaintiff-Appellee,v.Jack Sherman STEWARD, Defendant-Appellant. No. 92-10513. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 15, 1993.Opinion Oct. 8, 1993.Opinion Withdrawn Feb. 4, 1994.Decided Feb. 4, 1994. Atmore L. Baggot, Phoenix, Arizona, for the defendant-appellant. Paul V. Rood, Assistant United ...
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16 F.3d 330 Dawud Halisi MALIK, Plaintiff-Appellant,v.Neal BROWN, Defendant-Appellee. No. 91-36320. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 6, 1993.Decided Feb. 7, 1994. Mary Megan McLemore, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, Washington, for the plaintiff-appellant. Pat L. DeMarco, Assistant Attorney General, ...
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16 F.3d 335 Juana Cerpa MENDOZA, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 92-70469. United States Court of Appeals,Ninth Circuit. Submitted Dec. 16, 1993.*Decided Feb. 7, 1994. Enrique Ramirez, San Francisco, California, for the petitioner. Stuart M. Gerson, Assistant Attorney General, and Richard M. Evans, United States Department of ...
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15 F.3d 922 89 Ed. Law Rep. 441 Greg TIPTON, as representative of Maranatha CampusMinistries of Hawaii, an unincorporated UniversityRegistered organization of the University of Hawaii; DavidHolmes-Smith; Jonathan Van Boskerk; Loree Johnson, andother students of the University of Hawaii similarlysituated, Plaintiffs-Appellants,v.UNIVERSITY OF HAWAII; State of Hawaii; Kenneth Kato, inhi...
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OPINION Thurman Reed, Jr. appeals his guilty plea conviction, arguing that the district court erred in denying his motions to suppress. United States v. Reed, 810 F.Supp. 1078 (DAlaska 1992). We agree that the district court erred in suggesting that the Fourth Amendment permits police officers, without a warrant or consent of the occupant, to stand guard while private citizens ...
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Opinion I. Introduction In this appeal we decide whether a $3 fee charged by Bank of America for one of its check-processing services is unconscionably high, and if so, whether the trial court erred in issuing an injunction limiting the fee to $1.73, which represents the bank’s cost plus a 15 percent markup for profit. We conclude the fee is not unconscionable, and even if it were, t...
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*224 Opinion respondent superior court in which real parties in interest are plaintiffs. Respondent court denied petitioner’s motion for change of venue and petitioner now seeks a writ of mandate directing the court to vacate its order of denial and grant the motion. (Code Civ. Proc., § 400; all subsequent statutory references to sections of an undesignated code are to the Code o...
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Opinion Introduction Plaintiffs Say & Say and Liang-Hough Shieh (Shieh) have filed three notices of appeal under the two appellate case numbers referenced post: a notice filed on June 1, 1993, and another filed August 2, 1993, under case No. B076656 and a notice filed on June 3, 1993 under case No. B076709. Each of these notices is substantially the same in form, purportin...
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16 F.3d 338 73 A.F.T.R.2d (RIA) 94-1126, 94-1 USTC P 50,112 George O. DOHERTY; Emelia A. Doherty, Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 92-70596. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 4, 1994.Decided Feb. 8, 1994. Daniel C. Doherty, Manning & Murray, Arlington, Virginia, for th...
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16 F.3d 341 38 Fed. R. Evid. Serv. 1545 UNITED STATES of America, Plaintiff-Appellee,v.Jose Noel GARCIA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Luis Alberto GARIBALDI-GOMEZ, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Geraldo PRIETO-MARTINEZ, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Fernando ALCAREZ-OCHOA, Defenda...
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7 Cal.4th 246 (1994) 866 P.2d 92 27 Cal. Rptr.2d 165 MARLENE BURCH, Petitioner and Appellant, v. RANDALL GEORGE, as Trustee, etc., et al., Objectors and Respondents. Docket No. S025369. Supreme Court of California. February 7, 1994. *251 COUNSEL Hirschtick, Chenen, Cohen & Linden, Chenen, Cohen & Linden, Marvin M. Lager and C. Kelly McCourt for Petitioner and Appellant. Mitchell, Silberbe...
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Opinion This appeal presents, on undisputed facts, an issue of first impression, namely whether, under section 573, subdivision (a) of the Probate Code,1 decedent’s cause of action for nullity of marriage survived his death. The issue was joined when the special administrator of decedent’s estate moved for an order substituting himself in as petitioner in decedent’s action insofar as it sought to...
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I. INTRODUCTION On May 13, 1992, Abelardo Elenes Gaste-lum pleaded guilty to one count of conspiracy to possess cocaine with intent to distribute (21 U.S.C. § 846), and one count of possession of cocaine with intent to distribute (21 U.S.C. § 841(a)(1)). Although Fed.R.Crim.Pro. 11(c)(3) requires a district court to inform a defendant of certain constitutional rights “before accepting a plea of gu...
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On January 14, 1992, Los Angeles police officers arrested ten persons subsequently charged in an eight-count drug trafficking indictment. The five cocaine buyers and the sellers’ “mule,” Andres Ortiz, were all arrested in the act of consummating a drug deal; three others belonging to the cocaine selling group were arrested at or in the course of leaving an apartment, located on Otis Avenue, which...
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16 F.3d 1001 Jose Ramon MORALES, a/k/a Pablo Jose Ramon Morales,Petitioner-Appellant,v.CALIFORNIA DEPARTMENT OF CORRECTIONS; E.R. Meyers, Warden;Attorney General of the State of California;Board of Prison Terms, Respondents-Appellees. No. 92-56262. United States Court of Appeals,Ninth Circuit. Submitted July 15, 1993*.Submission Deferred July 19, 1993.Resubmitted Dec. 7, 1993.Deci...
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16 F.3d 344 UNITED STATES of America, Plaintiff-Appellee,v.$20,193.39 U.S. CURRENCY; 14K Yellow Gold Rings 83Un-Mounted 99.6 DWT; Numerous Other Pieces ofGold Jewelry & Precious Stones, Defendants,andZareh Berberian, Claimant-Appellant. No. 92-56000. United States Court of Appeals,Ninth Circuit. Submitted Feb. 1, 1994.*Decided Feb. 9, 1994. Duncan T. Moran, Graysen...
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Opinion tion by jury of threatening a witness (Pen. Code, § 140) and a finding that he had previously been convicted of a felony within the meaning of Penal Code section 667.5, subdivision (b). 1 He contends that the trial court failed to properly instruct the jury on the elements of section 140 and the requisite intent to commit it. He asserts that threatening a witness under section 140 is ...
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Opinion —This matter comes before us upon remand by the California Supreme Court for further proceedings consistent with the views expressed in People v. Cahill (1993) 5 Cal.4th 478 [20 Cal.Rptr.2d 582, 853 P.2d 1037]. The Supreme Court overruled its controlling decisions which held that, under the California Constitution, the admission of an involuntary confess...
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*290 Opinion —“Any person now or hereafter employed by the State may file . . . a designation of a person who, notwithstanding any other provision of law, shall, on the death of the employee, be entitled to receive all warrants that would have been payable to the decedent had he survived.” (Gov. Code, § 12479.) The issue presented in this appeal is whether the State Department of Forestry and...
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16 F.3d 348 73 A.F.T.R.2d 94-1187, 62 USLW 2548,94-1 USTC P 50,093 UNITED STATES of America, Plaintiff-Appellee,v.Ross HUEBNER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.John WILLIAMS, Defendant-Appellant. Nos. 92-10543, 92-10577. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 16, 1993.Decided Feb. 10, 1994. John G. ...
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OPINION The debtor moved to vacate a default judgment of nondisehargeability and dismiss the underlying complaint based on defective service of process. At issue was whether the debtor’s attorney was served with a copy of the summons and complaint as required by Fed.R.Bankr.P. 7004(b)(9), which provides for service on the debtor by mailing copies of the summons and complaint to the de...
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OPINION I The bankruptcy court granted summary judgment in favor of the defendant in a nondischargeability action under Bankruptcy Code (“Code”) Section 523(a)(2) on the basis that the plaintiff had not advanced additional funds in connection with the extension or renewal of credit. We REVERSE and REMAND. II FACTS The appellant, Cho Hung Bank (“Bank”), held a junior lien on real prope...
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Opinion —On plaintiffs Michael and Lynn Richie’s1 action for personal injuries, the trial court entered judgments for defendants Bridgestone/ Firestone, Inc., Wagner Electric Corporation and Kaiser Gypsum Company, Inc. The trial court also awarded sanctions to Bridgestone and Wagner. In consolidated appeals from the judgments and the sanctions order, appellant Lynn Richie contends that (1) the non...
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Opinion Michael Gross, a psychiatrist, appeals from a judgment notwithstanding the verdict. Robert Allen, a psychiatrist whose motion for judgment notwithstanding the verdict was denied, also appeals. We find it was error to grant the appealed from motion for judgment notwithstanding the verdict and reverse that part of the judgment. We also find it was proper to deny Dr. Allen’s moti...
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Opinion refused to pay an attorney the amounts billed for her representation of four indigent minors. By way of a petition for a writ of mandate, the attorney sought our assistance and we issued an alternative writ. After consideration of opposition submitted by County Counsel on behalf of the juvenile court and the County of Los Angeles, we hold that the juvenile court must, upon a reques...
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Opinion —We are presented with the question whether the court abused its discretion when it ordered all discovery disputes be heard by a private referee with the parties to split the fees equally. Because we conclude the court failed to properly consider the economic impact its order might have on a party claiming she was unable to pay the fees and continue with the litigation, we grant t...
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16 F.3d 355 1994 Copr.L.Dec. P 27,214, 29 U.S.P.Q.2d 1789 KONIGSBERG INTL. INC.; the Sanitsky Company, Plaintiffs-Appellants,v.Anne RICE, Defendant-Appellee (Two Cases). Nos. 92-55425, 93-55122. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 3, 1993.Decided Feb. 11, 1994. Naomi Norwood, Jerome S. Mandel, Mandel & Norwood, Santa Monica, ...
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16 F.3d 358 UNITED STATES of America, Plaintiff-Appellee,v.Glenn Ruel BURNETT, Defendant-Appellant. No. 93-50065. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1993.Decided Feb. 11, 1994. Humberto Diaz, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. Clare S. Phillips, Assistant United States Attorn...
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Cohan appeals from the district court’s order holding him in criminal contempt, entered pursuant to Rule 42(a) of the Federal Rules of Criminal Procedure. He also appeals from the district court’s order revoking his permission to practice in the Western District of Washington for three years, entered pursuant to the court’s authority to sanction lawyers for unprofessional conduct. Standing Commi...
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Opinion —Dennis Sean Curtin was convicted of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)), 1 grand theft (§ 487, former subd. 1) and forgery (§ 470), all arising out of a single incident in which he cashed a check at a bank by misrepresenting himself as one of the bank’s depositors and using a forged signature. He was sentenced to two years in state prison for the burglary, a co...
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Opinion —Petitioner Emilio Estevez (Estevez) seeks a writ of mandate compelling the respondent superior court to vacate its order of May 3, 1993, directing Estevez to produce information and documentation relating to his income, expenses, and assets, in connection with the application of real party in interest Carey L. Salley (Salley), on behalf of herself and the two minor children of th...
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Opinion —Defendant and appellant Robert Lawicki (Lawicki) appeals a judgment entered upon a $125,000 jury verdict in favor of plaintiff and appellant Kathleen Joyce Kelly-Zurian (Zurian) in a sexual harassment case. Defendants and appellants Wohl Shoe Company, Shoe Company-Fanfares Shoes Division (Wohl), Lawicki’s former employer, separately appeal, contending Wohl is not liable for Lawicki’s c...
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Opinion —Plaintiff Kathleen A. Laughlin (Kathleen) brought this action against petitioner Pennsylvania Health & Life Insurance Guaranty Association (PHLIGA) and others,1 seeking to recover as a beneficiary of her deceased husband David Laughlin’s (David) life insurance policy issued by a Pennsylvania insurance company which later became insolvent. PHLIGA seeks a writ of mandate directing the resp...
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Opinion trial, convicting him of gross vehicular manslaughter while intoxicated (Pen. Code, § 191.5), driving under the influence of alcohol and causing injury (Veh. Code, 1 § 23153, subd. (a)), leaving the scene of an accident resulting in injury (§ 20001), and false personation (Pen. Code, § 529.3). True findings were made on specific allegations regarding the first two counts that Gallardo...
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Opinion —After we granted a peremptory writ of mandate in this matter directing the superior court to issue an order to release the grand jury transcripts in their entirety, the Supreme Court granted a petition for review and transferred the matter to us with directions to reconsider our order in light of Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223 [23 Cal.Rptr.2d 397, 859 ...
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Opinion —Respondent the Titan Corporation (Titan) owned a plant in New Jersey (hereafter the Keasbey site or Keasbey facility) that had been operating since 1906. When Titan decided to close the plant in 1985, it began investigating the extent of its environmental cleanup responsibilities under a New Jersey statute. The investigation revealed the site had some forms of pollution. Tit...
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OVERVIEW Maria Corazon Senica and her children petition for review of the Board of Immigration Appeals’ decision to deny the children’s applications for discretionary relief from deportation under § 212(k) of the Immigration and Nationality Act, 8 U.S.C. § 1182(k), and Maria’s application for relief under § 241(f) as the mother of a lawful resident alien. The Board found the children i...
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16 F.3d 1016 28 Fed.R.Serv.3d 200 In re LETTERS ROGATORY FROM THE TOKYO DISTRICT PROSECUTOR'SOFFICE, TOKYO, JAPAN.Yoshikuni OKUBO; Kazuyoshi Miura, Appellants,v.Carolyn M. REYNOLDS, Assistant United States Attorney andCo-Commissioner; Louis K. Ito, Assistant DistrictAttorney and Co-Commissioner, Appellees. Nos. 92-55856, 92-56217. United States Court of Appeals,Ninth Circuit. ...
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16 F.3d 1021 Benjamin LEPE-GUITRON, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-70505. United States Court of Appeals,Ninth Circuit. Submitted Dec. 10, 1993*.Decided Feb. 15, 1994. Eric Beaudikofer, El Centro, California, for the petitioner. Thomas W. Hussey, Office of Immigration Litigation, United States Department of Justice, Washingt...
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22 Cal.App.4th 446 (1994) 27 Cal. Rptr.2d 451 THE PEOPLE, Plaintiff and Respondent, v. SHAWN GAMBLE, Defendant and Appellant. Docket No. B068040. Court of Appeals of California, Second District, Division Seven. February 10, 1994. *448 COUNSEL Marleigh A. Kopas, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assi...
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Opinion (Pen. Code, § 1538.5), defendant entered a negotiated plea of no contest to charges of discharging a firearm in a grossly negligent manner which could result in injury or death (Pen. Code, § 246.3) and being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). Placed on probation for three years, defendant appeals, challenging the denial of his suppression motion. We shal...
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In this case we are called upon to decide whether a trial judge improperly intervened in the criminal proceedings before him. Because the long-delayed and woefully inadequate trial transcript makes it impossible for us to answer the question posed, we conclude that the conviction must be set aside and the case remanded for a new trial. FACTS AND PRIOR PROCEEDINGS On August 1, 1990, a federal ...
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Opinion business as Sears Point International Raceway, and Harvey “Skip” Berg appeal a judgment by jury trial awarding plaintiff/respondent Linda Finch (Finch) $476,250 in her action for wrongful termination based on violation of Labor Code section 970, 1 breach of contract, and negligent misrepresentation. Defendants’ principal claims of error are insufficiency of the evidence to support the...
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Opinion —Plaintiff Travis Edwin Jackson appeals a judgment denying his petition for administrative mandate against the Department of Motor Vehicles (DMV). Jackson attacks the judgment as without substantial evidentiary support. We affirm. I Introduction The DMV suspended Jackson’s driver’s license for driving under the influence of alcohol. Jackson lost at an administrative hearing. He al...
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*324 Opinion —This case stems from the detention of plaintiff, Joe Evans, by defendants, City of Bakersfield (City) and Police Officer Joseph Bianco, which ultimately resulted in Evans’s hospitalization for a broken neck. The City appeals from a verdict in favor of Evans for state tort causes of action and federal civil rights violations. We will reverse, holding that a person subjected to ...
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Opinion —We hold here that when a trial court refuses to initiate civil narcotic addict commitment proceedings under Welfare and Institutions *198 Code 1 section 3051 because of the defendant’s pattern of criminality, it must, under California Rules of Court, 2 rule 406(b), give a statement of reasons which at least point to the factors upon which the co...
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Raymond Michael Cimo appeals from a judgment finding the Immigration and Naturalization Service and the United States (“defendants”) not liable in his action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2679. We affirm. In the early morning hours on March 14, 1989, a fleeing suspect pursued by U.S. border patrol agents broadsided Mr. Cimo’s vehicle, causing him serious and perman...
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The Federal Communications Commission (“FCC”) appeals a judgment compelling it to disclose an FCC employee’s sick leave records under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 (1988). The FCC argues that the records are protected from disclosure under the FOIA’s personal privacy exemption. The district court found that the records did not contain protected personal medical informa...
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Jeffrey Kouf (“Kouf’) appeals the district court’s summary judgment in favor of Walt Disney Pictures and Television (“Disney”) in his action under the Federal Copyright Act, 17 U.S.C. §§ 501, 504. Kouf alleges that Disney infringed on his copyright in his screenplay entitled “The Formula,” when it made the film “Honey, I Shrunk the Kids.” The district court found that the two works were not sub...
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Nintendo of America, Inc. appeals the execution of a $15 million bond in favor of Lewis Galoob Toys, Inc. Nintendo posted the bond as security for a preliminary injunction against Galoob in a copyright infringement action Nintendo later lost. The district court awarded Galoob the entire amount of the bond after finding the injunction caused Ga-loob at least $15 million in damages. Nintendo...
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Basilio Castaneda, Rolando Quinonez, and Luis Casillas appeal their sentences and convictions of conspiracy to engage in money laundering and of several substantive counts of money laundering. We affirm Casillas’s convictions and sentence. As to Quinonez and Castaneda, we affirm in part, reverse in part, and remand for resentencing. I In 1991, federal agents began an investigation of money la...
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18 F.3d 778 Daniel Eugene FRAZER, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. No. 92-55193. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1993.Decided March 10, 1994. Kenneth M. Stern, Woodland Hills, California, for the petitioner-appellant. Mark D. Larsen, Assistant United States Attorney, and Peter G. Spivac...
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*540 Opinion project, Mark and Valeria Milman and Leonid and Katrin Stolyarov brought an action against Josif Dubrovsky, Victor and Helen Shukhat, and others, alleging breach of contract, fraud, constructive fraud, and breach of covenant of good faith and fair dealing. Insofar as it related to the Shukhats, the plaintiffs sought declaratory relief concerning the rights of the part...
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Opinion —In a one-count information, appellant Connie Maria Orr was charged with murder (Pen. Code, § 187, subd. (a)) in the May 1989 beating death of Willie Stenson, with whom she lived. 1 She claimed self-defense and that she suffered from battered woman’s syndrome. A jury found appellant not guilty of murder and of the uncharged lesser included offense of involuntary manslaughter (§ 192, s...
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Opinion from a judgment which declares that a 1987 amendment to the Public Employees’ Retirement Law, relating to enhanced pension benefits, applies to its employees without its election. Sacramento, as an agency contracting with the Public Employees’ Retirement System (PERS), is subject to the Public Employees’ Retirement Law. Under that law employees classified as “local safety memb...
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16 F.3d 1073 Fed. Sec. L. Rep. P 98,078, 28 Fed.R.Serv.3d 128 Richard B. DANNENBERG; Mindy Blitz; Kenneth HomerFleisher; Steven G. Cooperman; Nathaniel Orme;Ervin H. Fishman, et al., Plaintiffs-Appellants,v.The SOFTWARE TOOLWORKS INC.; Leslie Crane; Elizabeth M.Barker; Deloitte & Touche, et al.; PaineWebberIncorporated; Montgomery Securities,Defendants-Appellees. No. 92-1...
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This case involves the federal government’s increasingly widespread use of civil forfeitures to achieve the goals of criminal law enforcement in what used to be called the “war on drugs.” 1 The government sought to forfeit $191,910.00 seized from claimant-appellee Bruce R. Morgan. The district court granted Morgan’s motion for summary judgment on the ground that the government failed...
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Opinion case, seeks a writ of mandate ordering respondent superior court to appoint *905 Attorney Madelynn Kopple, who acted as his court-appointed advisory counsel in the municipal court, to represent him in superior court proceedings. The petition raises several issues concerning the appointment of trial counsel for indigent criminal defendants. The first issue is whether a superior court...
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Opinion —This appeal is from a judgment rendered under the Revised Uniform Reciprocal Enforcement of Support Act (RURESA). 1 Kenneth Wagner Ryan (Husband) appeals from a judgment ordering him to pay Jean Palmer Ryan (Wife) child support in the amount of $12,837.62, plus costs, for their three children. His principal contention on appeal is that pursuant to Texas law (the stat...
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Opinion Statement of the Case This is an appeal taken from the superior court’s decision to deny a petition for a writ of mandate filed by a property owner. At issue is a municipal code section which permits reconstruction of a nonconforming building damaged by fire if the cost to repair does not exceed 50 percent of the building’s value prior to the fire. The municipality successful...
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Opinion —Metro Traffic Control, Inc., appeals (Code Civ. Proc., § 904.1, subd. (f)) from an order denying its request for a preliminary injunction to restrain respondent Shadow Traffic Network from soliciting Metro’s employees to violate the noncompete and trade secret clauses of their employment contracts. We affirm and hold that the clauses are unenforceable absent evidence that Metro p...
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Opinion Appellant Sharon Purcell DiLeonardo is a one-sixth beneficiary of the income from the trust. Respondents Helen True Purcell, Lauri Ann Prati, and Michael L. Purcell are the other five-sixths beneficiaries of the trust income. Wells Fargo Bank is the trustee. Appellant filed objections to the trustee’s third account. The court summarily adjudicated that appellant’s objections lacked merit, ...
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Opinion from superior court to municipal court after determining the amount at stake was insufficient for superior court jurisdiction. Plaintiff appealed. We hold this order is reviewable solely through a writ proceeding and thus dismiss the appeal. Facts and Proceedings Below Appellant and plaintiff, Niaz A. Yousafzai, purchased a new 1989 Hyundai Excel GLS automobile in April of 1989. The...
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Opinion I. Introduction Queen Victoria’s reign still had more than 30 years to go when, in 1868, Attorney William Gilbert sketched his operetta Trial by Jury which lampooned lawsuits for breach of promise of marriage. 1 In Gilbert’s story, the defendant was a cad—who loved one young lady today—and another young *946 lady tomorrow. The plaintiff, as one might g...
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*930 Opinion Introduction Roger Denney (Roger) and Roger’s wife, Marilyn Denney, (collectively plaintiffs) appeal from a stipulated judgment of dismissal entered against them and in favor of the Press Enterprise Company (Press-Enterprise) and E. M. Lawrence (Lawrence) (collectively defendants). 1 They contend that the trial court erred when it ruled, for purposes ...
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Opinion require a verbatim record of a hearing at which the minor admits the petition? We conclude reversal is not always required; appellant, Ian J., has failed to demonstrate entitlement to reversal in the present case. Factual and Procedural Background A “subsequent ward petition” was filed on February 17, 1993, alleging that 16-year-old Ian J. (hereafter appellant) came within the provi...
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*970 Opinion real property in Los Altos Hills in the mid-1970’s. Jack B. Horton is a general contractor who owns a drywall business. The Hortons decided to build an estate on this property for themselves and, with Jack Horton acting as the general contractor, they contracted with plaintiff Maclyn Morris, Jr., to provide the “millwork” or woodwork for the various buildings the Hort...
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16 F.3d 1513 Keiko LAREZ, Plaintiff-Appellee and Cross-Appellant,v.William HOLCOMB, Defendant-Appellant and Cross-Appellee. Nos. 91-55822, 91-56145, 91-56283 and 91-56284. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1993.Decided Feb. 22, 1994. Marion R. Yagman and Stephen Yagman, Yagman & Yagman, Venice, California, for the plaintiff-ap...
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Opinion council (the City) involves the City’s compliance with the requirements of Government Code section 65583 and related sections in updating the housing element of its general plan; it also involves the application of the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) to that update. The trial court granted a petition for writ of mandate directing the ...
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*1126 Opinion Leedy Plating Corporation, 1 a metal plating plant located on San Leandro Street in Oakland. Both Sangani and Leedy Plating were charged by information with six criminal violations of the California Hazardous Waste Control Act (hereafter the Hazardous Waste Act). (Health & Saf. Code, 2 § 25100 et seq.; Cal. Code Regs., former tit. 22, § 66001 ...
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510 U.S. 471 (1994) FEDERAL DEPOSIT INSURANCE CORPORATION v. MEYER No. 92-741. Supreme Court of United States. Argued October 4, 1993. Decided February 23, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *472 THOMAS, J., delivered the opinion for a unanimous Court. Deputy Solicitor General Bender argued the cause for petitioner. On the briefs were Solicitor General Da...
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delivered the opinion of the Court. This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees’ collective-bargaining representative under the Federal Service Labor-Management Relations Statute, 5 U. S. C. §§7101-7135 (1988 ed. and Supp. IV), would constitute a “clearly unwarran...
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Opinion Alyssa, free from his parental custody and control pursuant to Civil Code former section 232, subdivision (a)(2) and (a)(7). 1 The minor was adjudicated a dependent child of the juvenile court prior to January 1, 1989. (See *1251 Welf. & Inst. Code, § 366.26 [procedures applicable to minors adjudicated dependent children on or after Jan. 1, 1989].) Appellant...
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Opinion I. Introduction “Do you have any legal cause to show why judgment should not be pronounced against you?” *1238 Many attorneys have heard these words spoken prior to imposition of sentence in criminal proceedings, without giving much thought to what the question means. The inquiry, which is called “allocution,” has ancient roots in the common law and is statutori...
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*1275 Opinion I. Background This is an appeal from a judgment granting a motion to confirm an arbitration award pursuant to Code of Civil Procedure section 1286. 1 Plaintiffs are seven residents of the Stallion Meadows Mobile Home Park: Lydia McGregor; Barbara Robinson; Michael Robinson; David Seim; Pamela Seim; Jerald Vincent; and Marilyn Jewell-Vincent as well a...
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Opinion ment in favor of defendants, Sedgwick, Detert, Moran & Arnold and Lenore Duncan. We determined that the notice of appeal was not timely filed. Accordingly, the appeal is dismissed. On October 28, 1993, defendants served a notice of entry of judgment. Additionally, defendants likewise served a notice of ruling concerning the denial of plaintiff’s various posttrial motions. Both...
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Opinion acre lot in the Santa Monica Mountains, overlooking Tuna Canyon and the Pacific Ocean. What he had in mind was building a modest, three-bedroom home for his family. What he got was a long-term nightmare. Facts Healing’s property (located at 2640 South Chard Avenue, in the County of Los Angeles) is within the inland boundaries of the coastal zone and is regulated by the Ca...
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Opinion robbery and assault, claiming error in the admission of his confession, insufficiency of evidence, sentencing error, and a due process violation in the “reasonable doubt” instruction. We find no error and affirm the judgment. Factual and Procedural Summary This case involved four separate incidents. On the afternoon of July 11, 1992, an altercation arose between appellant and several indiv...
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Opinion by another attorney for improperly withdrawing money held in a joint account pending resolution of a fee dispute between them. The petitioner, then represented by counsel, was deposed and, at the deposition, he was asked “legal contention” questions, calling upon him to state all facts, list all witnesses and identify all documents that support the affirmative defenses he had asser...
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Opinion involving conflicting child custody orders of the courts of France and Texas. Father, Dan Alexandre Zenide, petitioner herein, seeks to enforce a Texas child custody order awarding him custody of his two minor daughters. Mother, Rita Ignaccolo, real party in interest herein, seeks to enforce a French child custody order awarding her custody of her two minor daughters. Respondent co...
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*1309 Opinion counts of robbery (Pen. Code, 1 § 211) while personally armed with a firearm (§ 12022.5, subd. (a)) and admitted that he had been three times in possession of a firearm while a convicted ex-felon (§ 12021.1, subd. (a)). He also admitted suffering prior felony convictions of rape while armed with a firearm (§§ 261, 12022, subd. (a), 667.5, subd. (a)), robbery (§§ 211, 667.5, su...
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Opinion found 17-year-old Rodrigo O. to be a fit subject to be dealt with under juvenile court law. The People contend the court erroneously based its finding on irrelevant alibi evidence and that Rodrigo failed to rebut the presumption of unfitness under Welfare and Institutions Code 1 section 707, subdivision (c). 2 We agree and grant the petition. Factual and Procedural Background T...
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Opinion Ocean just offshore from the private beach owned by the Cyprus Shore Community Association in San Clemente include riptides, submerged rocks and a hazardous drop-off. A friend of a guest at a beach party was badly injured in that surf, and brought this lawsuit against the association and the homeowner who allowed the beach party to take place, charging them with failing to warn him...
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Opinion Defendant Clinton Anthony Martin appeals from the judgment entered after his conviction for first degree murder. He charges instructional and other trial court error. We affirm. *78 Statement of Procedure A jury convicted the 18-year-old defendant of murder in the first degree and found true the enhancements as alleged in the information: discharge of a firearm at an occupied mo...
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16 F.3d 1526 145 L.R.R.M. (BNA) 2584, 62 USLW 2544 The DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, LONGBEACH, CALIFORNIA, Petitioner,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent;American Federation of Government Employees Council 33,AFL-CIO Local 1061, Respondent-Intervenor.FEDERAL LABOR RELATIONS AUTHORITY, Petitioner,v.The DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER, LONGBEACH, C...
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17 F.3d 291 28 Fed.R.Serv.3d 33 In re JACK RALEY CONSTRUCTION, INC., Debtor,John T. KENDALL, Trustee in Bankruptcy, Plaintiff-Appellee,v.HOMESTEAD DEVELOPMENT COMPANY, INC., a Californiacorporation, Defendant,Carpenters Health and Welfare Trust Fund for California;Carpenters Pension Trust Fund for Northern California;Carpenters Vacation and Holiday Trust Fund for NorthernCalifornia; Carpe...
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OPINION Jackson of the United States Ar Force filed a civil action in federal district court against the United States and various agents of the Ar Force Office of Special Investigations (“AFOSI”), alleging causes of action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) and the Federal Tort Claims Act ...
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Appellant Joor Manufacturing, Inc. (“Joor”), challenges the district court’s decision holding Joor liable for anticompetitive conduct in violation of federal antitrust laws and for the California tort of intentional interference with prospective economic advantage. Through deliberate misrepresentation, Joor caused a prominent standard-setting organization to amend its influential model fire code t...
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18 F.3d 1443 145 L.R.R.M. (BNA) 2668, 127 Lab.Cas. P 11,043 Leon STEVENS; Jerry Carson; Nick Cotogno; Ralph Allen;Lauro Andrade, Jr.; Betty Armet; Dale Ball, etal., Plaintiffs-Appellants,v.MOORE BUSINESS FORMS, INC., d/b/a Moore Business Forms &Systems Division; Local 404 M Graphic CommunicationsInternational Union; Norman V. Salaets; Ray F. Ardanaz;Graham J. McClean, Defendan...
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Opinion I. Introduction The Court of Appeal reversed the order of the juvenile court denying a motion for change of placement of a minor from foster care to her grandmother’s care. The Court of Appeal concluded that the lower court’s error in ruling on the motion for change of placement also required reversal of its ensuing order terminating parental rights. The minor and the San Diego County Dep...
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Opinion Corporation to challenge certain decisions made by the board of directors in response to the acquisition of approximately 8.8 percent of Chevron’s common stock by the Pennzoil Company. The trial court found the directors’ decisions protected by the business judgment rule and granted summary judgment in favor of Chevron. The shareholders appeal. We affirm the judgment. Statemen...
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Opinion workers who are injured in the course of employment. (See Judson Steel *1379 Corp. v. Workers’ Comp. Appeals Bd. (1978) 22 Cal.3d 658 [150 Cal.Rptr. 250, 586 P.2d 564].) In proceedings before the Workers’ Compensation Appeals Board (WCAB), the respondent Franchise Tax Board was found to have discriminated against petitioner Rosetha Dyer because of a work injury within the meanin...
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17 F.3d 1189w Johanna TREVINO, a Minor, By and Through her next friend,her Grandmother, Filadelphia CRUZ, Plaintiff-Appellee,v.Daryl GATES, Defendant,andJoel Wachs, Joy Picus, John Ferraro, Zev Yaroslavsky, RuthGalanter, Ernani Bernardi, Marvin Braude, HalBernson, Michael Woo, Joan Flores,Defendants-Appellants. No. 92-56069. United States Court of Appeals,Ninth Circuit. Argued and ...
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Filemon Arzate-Nunez appeals his guilty plea conviction of being an alien in the United States after deportation and conviction of an aggravated felony. 8 U.S.C. § 1326(b)(2). He argues that the district court erred in denying his motion to dismiss the indictment and in accepting his conditional guilty plea. We affirm. I. FACTS & PROCEDURAL BACKGROUND Arzate-Nunez is a citizen of Mexi...
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In this appeal we are confronted with the law of entrapment and are asked to evaluate jury instructions on that issue. The defendant asserts that his acquittal on one set of charges was inconsistent as a matter of law with his conviction on a second set of charges. The defendant also argues that the instructions given in this case were plainly erroneous because they failed to state accurately the...
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Allen L. Streit appeals for the second time his sentence under the Sentencing Guidelines, following our remand for resentencing. We affirmed his conviction for assault on a federal officer and for using or carrying a firearm during a crime of violence, in United States v. Streit, 962 F.2d 894 (9th Cir.1992). The facts and procedural history are contained in the published opinion. The only que...
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*1340 Opinion appeals from a judgment holding him liable to the beneficiary, Eva Di Grazia (DiGrazia), for breaching his duty to manage the trust property so as to ensure her income. He contends DiGrazia’s action was barred by the statute of limitations, and that the damage award against him was not supported by the evidence and was improperly calculated. DiGrazia appeals from the...
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*1448 Opinion California Uniform Limited Partnership Act (ULPA), a limited partner may file a derivative action against the general partners alleging the general partners engaged in self-dealing and breached their fiduciary duties of due care and loyalty to the limited partnership by leasing partnership property to themselves without making rental payments. The trial court conclud...
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Petitioner Dennis F. Howard (“Petitioner”) seeks review of the order of the National Transportation Safety Board (NTSB) affirming the decision of the Administrative Law *1215 Judge (ALJ), which affirmed and modified the FAA administrator’s decision temporarily suspending Howard’s commercial pilot certificate. We have jurisdiction under 49 U.S.C.App. § 1486(a) (1988), and we deny the petition fo...
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17 F.3d 1209 38 ERC 1389, 24 Envtl. L. Rep. 20,550 TRUSTEES FOR ALASKA; Alaska Center for the Environment;Anchorage Audobon Society, Plaintiffs-Appellants,v.Tom FINK, in his capacity as Mayor of the Municipality ofAnchorage; and the Municipality of Anchorage,Defendants-Appellees. No. 92-36932. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1994.Dec...
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Darweshi Dinkane appeals his jury conviction of armed bank robbery in violation of 18 U.S.C. § 2113(a)(d) (1988). During his trial, the jury heard evidence that Dinkane helped plan the robbery and that he drove the getaway car. The government, however, presented no evidence from which a jury could conclude that Dinkane knew the robbery was armed prior to the robbers’ exit from the bank. The jury ...
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Lamthong Sudthisa-Ard appeals his jury conviction for conspiracy and importation of heroin in violation of 21 U.S.C. §§ 952, 960, and 963. We dismiss the appeal because Sudthisa-Ard’s thirteen-year fugitive status’prejudiced the government’s ability to retry the case in the event of reversal and made meaningful appellate review impossible. I. In 1978, the district court conducted a joint tria...
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Charles Lee Young, and his codefendants William Forry and Daniel Dean Bryan, appeal their convictions and sentences for methamphetamine trafficking. 21 U.S.C. § 841(a)(1). Young argues primarily that the district court erred in denying his motion for a new trial based on the government’s use of false evidence against him. 1 We agree and reverse. I. On November 21, 1991, at approximately fiv...
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7 Cal.4th 327 (1994) 867 P.2d 724 27 Cal. Rptr.2d 613 HARRY LOCKLIN et al., Plaintiffs and Appellants, v. CITY OF LAFAYETTE et al., Defendants and Respondents. Docket No. S030595. Supreme Court of California. February 28, 1994. *336 COUNSEL Pillsbury & Wilson, Pillsbury, Wilson & Post, Pillsbury, Levinson & Mills, Philip L. Pillsbury, Jr., Goldstein & Goldstein, Burton J. Goldstei...
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Opinion In this prosecution for committing lewd acts upon a child, evidence was admitted tending to establish that defendant had committed a prior, uncharged lewd act upon the complaining witness (his stepdaughter) and also had committed prior, uncharged lewd acts upon her older sister. In determining whether it was proper for the trial court to admit this evidence, we first consider whether, in ...
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7 Cal.4th 414 (1994) 867 P.2d 777 27 Cal. Rptr.2d 666 THE PEOPLE, Plaintiff and Respondent, v. JASON MICHAEL BALCOM, Defendant and Appellant. Docket No. S024543. Supreme Court of California. February 28, 1994. *417 COUNSEL David C. King, under appointment by the Supreme Court, for Defendant and Appellant. Charles H. James, Public Defender (Contra Costa), Jack Funk, Deputy Public Defender, and Joh...
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Opinion We granted review in this case to resolve a conflict in decisions of the Courts of Appeal regarding whether, under Penal Code section 22,1 evidence of voluntary intoxication is admissible in a prosecution for second degree murder when the prosecution seeks to establish the existence of malice aforethought on an implied malice theory, i.e., seeks to prove that the defendant acted with know...
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Opinion its application under Code of Civil Procedure section 704.750 1 for an order for sale of a dwelling. The trial court denied the application after determining that respondent Richard W. Storek has a one-half separate property interest in the dwelling, and that the value of that interest is less than the combined amount of Storek’s homestead exemption under section 704.730 and all liens...
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*1392 Opinion adjudication made by the judge in charge of coordinated cases, given the coordination title of “Breast Implant Cases.” The court ruled that the plaintiffs could not state a cause of action for strict liability based on design defect. This ruling is challenged on a number of grounds as discussed hereafter. Writ review of the order is authorized by Code of Civil Proced...
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Opinion obstetrician nicked the cheek of baby Brittany Bro with his scalpel. There was no permanent physical injury to the baby; nevertheless, the parents *1401 commenced the underlying litigation against the doctor, seeking, on behalf of their baby daughter, to recover for medical malpractice and, for their own account, to recover emotional distress damages, arising because o...
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*1457 Opinion dential burglary and petty theft with a prior conviction (Pen. Code, §§ 459, 666). At approximately 11 a.m. on December 29, 1991, Bernal entered his mother’s home in Spring Valley, went into a bedroom and stole a car stereo. His sister and mother caught him committing the crime. Bernal left on a bicycle. After the jury returned guilty verdicts of burglary and petty theft, in a...
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The issue presented in this case is whether the Interstate Commerce Commission (“ICC”) has the authority to enforce labor protective conditions adopted in compliance with the Interstate Commerce Act ex-traterritorially on behalf of a Canadian citizen, working in Canada for an American rail carrier. We hold that it does not. I. Facts and Proceedings Paul Van Blaricom, a Canadian citize...
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17 F.3d 1227 Kingo KAWAOKA; Tatsumi Kawaoka, Plaintiffs-Appellants,v.The CITY OF ARROYO GRANDE; The City Council of ArroyoGrande; Mark M. Millis; B'Ann Smith; GeneMoots; A.K. Dougall; Doris Olsen,Defendants-Appellees. No. 92-55714. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 8, 1993.Decided March 2, 1994. John B. Murdock, Santa Monica, ...
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17 F.3d 1219 145 L.R.R.M. (BNA) 2791, 62 USLW 2464,127 Lab.Cas. P 11,045,1 Wage & Hour Cas. 2d (BNA) 1520 John McCOLLUM, on behalf of himself and all others similarlysituated, Plaintiffs-Appellants,v.Mary ROBERTS, in her official capacity as Labor Commissionerfor the State of Oregon, Defendant-Appellee. No. 91-35977. United States Court of Appeals,Ninth Circuit. Argued and...
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OVERVIEW Appellant, George Christian Carr, was convicted of one count of armed bank robbery under 18 U.S.C. § 2113(a) & (d), and one count of using a firearm in committing a violent crime under 18 U.S.C. § 924(c)(1). He received á total sentence of 106 months. The primary issue on appeal is whether, over a defendant’s objection, a federal magistrate judge has jurisdiction to preside over a...
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16 F.3d 1078 UNITED STATES of America, Plaintiff-Appellee,v.Waldemar RATZLAF, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Loretta RATZLAF, Defendant-Appellant. Nos. 91-10397, 91-10429. United States Court of Appeals,Ninth Circuit. March 2, 1994. On Remand From The United States Supreme Court. Before: WALLACE, Chief Judge, and CHOY and POOLE,...
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Opinion defendant doctors at the hospital where they maintained staff privileges complies with the notice provision of Code of Civil Procedure section 364 in order to extend the statute of limitations, and if not, whether relief can be granted pursuant to Code of Civil Procedure 1 section 473. We answer both questions in the negative. In this case, appellants Izhak Hanooka and Rina Gay Hano...
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*1476 Opinion I. Introduction Don H. Haycock (plaintiff) alleged he was constructively discharged from his employment with Hughes Aircraft Company (defendant) after more than 25 years with the company. The case was tried before a jury, which found in plaintiff’s favor. Defendant appeals contending: (1) it was error to deny defendant’s motion for judgment notwithstanding the ...
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Opinion a trial court may require an applicant for drug diversion to submit to reasonable, but warrantless, searches as a condition of his diversion program. We reluctantly conclude that under the law as currently interpreted, it may not do so. Appellant Victoria Fleming was charged in count I with possession for sale of a controlled substance (Health & Saf. Code, § 11378) and in coun...
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Opinion person attempting to use an automated teller machine. Appellant, Anthony C. Harris, appeals his conviction contending it was reversible error for the trial court to deny his motion for mistrial and to fail to instruct on the lesser offenses of theft and assault. He also contends it was error to use the fact of a single conviction to enhance his sentence under Penal Code section 667, sub...
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Opinion (Pen. Code, § 190.2, subd. (a)(17)(i) & (vii)) against the three “non-shooter defendants” on the ground that Proposition 115 could not be. applied to crimes committed after its passage but before the California Supreme Court’s decision in Yoshisato v. Superior Court (1992) 2 Cal.4th 978 [9 Cal.Rptr.2d 102, 831 P.2d 327] (which held Proposition 115 was effectiv...
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*1614 Opinion an immediately subsequent court trial on a bifurcated allegation that appellant had previously been convicted of the serious felony of robbery (see Pen. Code, §§ 667, 211, and 1192.7, subd. (c)), the court found that allegation to be true. Appellant was sentenced to a total term of 11 years in state prison. This consisted of a six-year upper term for the burglary plus a five-yea...
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17 F.3d 1244 John A. AIONA, Jeton Lee Allen, Martin Andrews, Terry J.Bateman, Tamara Bray, Lynette Ching, Cory Chock, Michael A.Ilaszcat, David L. Kelly, Charles Kernan, William Milovich,Dan S. Okamura and Michael A. Willard, individually and onbehalf of all persons similarly situated, Plaintiffs-Appellants,v.The JUDICIARY OF the STATE OF HAWAII; Irwin Tanaka,Administrative Director of Courts...
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Opinion a grant of nonsuit in favor of the defendant physician, Chaminoor Zachariah, in a medical malpractice action. The Duartes’ evidence affords the inference that Zachariah’s negligent overprescription of a drug harmed her bone marrow, preventing completion of treatment with chemotherapy which would have lowered the likelihood of the recurrence of Duarte’s breast cancer. The cance...
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*1500 Opinion credits—for time spent both on “house arrest” and in two of his nonsecure prior placements—against his maximum term of commitment to the Youth Authority. He also claims the amount of credit otherwise calculated by the juvenile court is incorrect. In the published portion of this opinion, we reject the former contention. In the unpublished portion, we decline to reach the latter....
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*1644Opinion ther) appeal from orders of the juvenile court terminating their parental rights after the court found it is likely their children, Sarah M. and Charles M., will be adopted. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code.) In the published portion of this opinion, we reject appellants’ contention that the juvenile court erred i...
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Opinion of the superior court under the recently reenacted statutes governing small claims courts to make an affirmative award to a defendant appealing from a small claims judgment in favor of plaintiff where the defendant also suffered an adverse judgment on her own claim. (Code Civ. Proc., § 116.110 et seq. *1589 [all further statutory references are to this code].) We hold ...
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Opinion against Louis H. Powers, M.D., after a jury determined Powers, a trauma surgeon, was negligent in the diagnosis, care and treatment of Maxwell, who *1600 had been in a motorcycle accident and eventually lost a kidney. Maxwell contends the trial court erred by failing to send the jury back for further deliberations with additional instructions after receiving an erroneo...
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Elwood Wayne Hage and Lloyd Clint Seaman were charged and convicted, after a jury trial, of doing more than $100 in damage to government property, in violation of 18 U.S:C. § 1361, and disposing of government property valued in excess of $100 without authority in violation of 18 U.S.C. § 641. The defendants-appellants raise a number of issues on appeal, but the dispositive questions are whether...
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Opinion marriage to Geryl Tallman. He asserts the trial court erred in determining the amount of the reimbursement to which she was entitled for spending her separate property funds to extinguish a debt encumbering the community residence Civ. Code, 1 (former § 4800.2, now Fam. Code, § 2640). We agree with Mr. Tallman’s contention. Facts The parties married on May 29, 1980, and separated ...
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OPINION Satyendranath Das appeals the district court’s grant of a motion for summary judgment to the Secretary of Health and Human Services. 789 F.Supp. 324 (1992). The Secretary found that Das’s social security retirement benefits are subject to reduction pursuant to the Windfall Elimination Provision (WEP), 42 U.S.C. § 415(a)(7). 1 We have jurisdiction under 28 U.S.C. § 1291....
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Plaintiff Anthony J. English, a former employee of defendant Burlington Northern Railroad Company (“Burlington”), appeals a summary judgment for Burlington and the denial of his petition for judicial review of an order of Public Law Board No. 3408 (the “Board”) affirming English’s discharge from employment for off-duty misconduct. We affirm. I. Burlington discharged English from emplo...
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Opinion (Pen. Code, § 4019) for time served in a work release program (Pen. Code, § 4024.2) while committed to county jail as a condition of probation? 1 We conclude the probationer may not receive conduct and work credit for time served in a work release program because the time is not served “in actual custody.” (§ 4019, subd. (f).) Defendant Kenneth Martin Wills pled no ...
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*1747 Opinion address the issue of when the prohibiting of the testimony of a witness in a criminal case is an appropriate sanction for a violation of a discovery obligation. (See Pen. Code, § 1054 et seq.) As we shall explain, we conclude that prohibiting the testimony of a witness is not an appropriate discovery sanction in a criminal case absent a showing of significant prejudice and of wi...
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Opinion sentencing on a violation of Penal Code section 647.6, 1 the trial court may use the defendant’s service of a prior prison term as a factor in aggravation of the base term when that prison commitment resulted from the same prior conviction which elevated the current offense to felony status. This requires us to determine whether People v. Jones (1993) 5 Cal.4th 1142 [22 Cal.Rptr.2...
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OPINION The Resolution Trust Corporation and the former directors and officers of the insolvent Pacific Savings Bank appeal the district court’s summary judgment that no insurance coverage is available under policies issued by American Casualty Company and its predecessors. American Casualty appeals the district court’s order requiring it to advance defense costs incurred by the directors and off...
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17 F.3d 1256 62 USLW 2623, 127 Lab.Cas. P 33,069,1 Wage & Hour Cas. 2d (BNA) 1505 Gary BARNER; Jerry Bennett; Brian Brady; Richard Rudy,Plaintiffs-Appellees,v.CITY OF NOVATO, Defendant-Appellant.Gary BARNER; Jerry Bennett; Brian Brady; Richard Rudy,Plaintiffs-Appellants,v.CITY OF NOVATO, Defendant-Appellee.Gary BARNER; Jerry Bennett; Brian Brady; Richard Rudy,Plaintiffs-Appel...
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In this case we must decide whether an unlawfully discharged employee’s claim for backpay is entitled to administrative priority when his claim accrued after the former employer filed a petition in bankruptcy. For the reasons which follow we conclude that the claim is not entitled to priority as an *748 administrative expense of the bankruptcy estate. FACTS AND PRIOR PROCEEDIN...
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18 F.3d 752 UNITED STATES of America, Plaintiff-Appellee,v.Ray CARLISLE, Defendant-Appellant. No. 90-10582. United States Court of Appeals,Ninth Circuit. March 8, 1994. On Remand from the United States Supreme Court. Before: GOODWIN, SKOPIL, and FERGUSON, Circuit Judges. ORDER 1 Pursuant to a writ of certiorari, the Supreme Court has vaca...
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Opinion I. Introduction Plaintiffs, Nelson L. Robbins and Sharon E. Robbins, appeal from an order dismissing their complaint against defendants, Foothill Nissan and the Federal Deposit Insurance Corporation (FDIC), as receiver for Far Western Bank (Far Western) and Atlantic Finance Bank (Atlantic), a division of Far Western, for lack of subject matter jurisdiction. In the published p...
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I. INTRODUCTION This case requires us to interpret § 405 of the Immigration Act of 1990, Public Law 101-649 (“IMMACT”), enacted by Congress to extend eligibility for United States citizenship to Filipino veterans of World War II. Cong.Rec. S17111 (1977) (statement of Sen. Simon). The Immigration and Naturalization Service (“INS”) contends that under § 405 of IMMACT the Filipino veterans must prove...
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De Brown appeals from the judgment of the district court denying her habeas corpus petition challenging the Board of Immigration Appeal’s (Board) order finding that she was not a native born United States citizen and excluding her. The district court had jurisdiction pursuant to 28 U.S.C. § 2241 and 8 U.S.C. § 1105a(b). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. ...
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Frizell Clegg sued the Cult Awareness Network, alleging discrimination on the basis of race and religion in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a (1988). This statute prohibits discrimination in places of public accommodation. 1 The district court concluded Cult *754 Awareness was not a place of public accommodation within the meaning o...
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This case raises the question whether an automatic stay provision of the Bankruptcy Code, 11 U.S.C. § 362(a)(1) (“Section 362(a)(1)”), applies to an appeal from a Tax Court judgment concerning an alleged tax deficiency on the part of the debtor. We conclude that Section 362(a)(1) applies to such an appeal. Accordingly, we hold that the proceedings before us are stayed as a matter of law. I. T...
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Villarina petitions for review of the Board of Immigration Appeals’ (Board) dismissal of his appeal from the immigration judge’s decision. The immigration judge ordered him deported and denied his application for suspension of deportation under section 244(a) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1254(a), and his request for voluntary departure under section 244(e) of the Act...
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22 Cal.App.4th 1814 (1994) 28 Cal. Rptr.2d 498 NORMAN I. KRUG REAL ESTATE INVESTMENTS, INC., Plaintiff and Appellant, v. ROMAN PRASZKER et al., Defendants and Respondents. Docket No. A059808. Court of Appeals of California, First District, Division Two. March 7, 1994. *1816 COUNSEL Roberts, Helfrich & Waughtel and Michael Waughtel for Plaintiff and Appellant. Gordon & Rees, James M. Hanav...
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Opinion count of committing a lewd or lascivious act upon a child under fourteen years of age (Pen. Code, § 288, subd. (a)), but could not reach agreement on two other identical charges. For this offense defendant was sentenced to state prison for the middle term of six years, with a consecutive term of five years for a prior serious felony conviction (Pen. Code, § 667, subd. (a)). Defendant ap...
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Opinion Respondent Cathy Carr sued Barnabey’s Hotel Corporation (Barnabey’s) and Ken Whitty. The case was submitted to the jury on causes of action for sex and pregnancy discrimination based on violation of the Fair Employment and Housing Act (Gov. Code, § 12940 et seq.), wrongful termination in violation of public policy, fraud, and, as to Barnabey’s, negligence in retaining and supervis...
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*26 Opinion Beverly Beust (Beverly) appeals the trial court’s denial of her motion for modification of spousal support from her former husband Walter Beust (Walter). We reverse. Facts The parties’ marriage was dissolved in 1986 pursuant to a stipulated judgment. They had been married for 32 years. Beverly did not work outside of the home during the marriage. She is ...
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Opinion Plaintiff Martin Suman (plaintiff) appeals from a judgment rendered after a jury trial in which the trial court construed, in favor of defendant BMW of North America, Inc. (defendant), certain civil penalty provisions of the Song-Beverly Consumer Warranty Act. On appeal, plaintiff challenges the trial court’s construction of those provisions. Defendant defends the trial court’s co...
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Opinion Sang Van Nguyen was convicted of robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and false imprisonment. (Pen. Code, §§ 236, 237.) Nguyen was armed with a firearm when he committed the robbery. (Pen. Code, § 12022, subd. (a)(1).) On appeal, Nguyen argues that (1) the trial court erred in denying his motion to suppress a suggestive identification; (2) the trial court erred in denying appel...
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Morgan Stanley Mortgage Capital Inc. appeals the dismissal of its diversity action to establish ownership and possession of certain negotiable mortgage notes (“Notes”) issued by two California limited partnerships (collectively the “Signature Partnerships”). Morgan Stanley bought these Notes from the Signature Partnerships pursuant to reverse-repurchase transactions in which the Signature Partners...
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Opinion Was a worker on an offshore oil drilling platform who was discharged for refusing to submit to a urinalysis drug test discharged for “misconduct connected with his or her most recent work” and thus ineligible for unemployment compensation benefits? (Unemp. Ins. Code, § 1256.) 1 We hold that he was. We affirm the trial court’s judgment denying declaratory relief to the A...
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Opinion An attorney files an action for his client. The attorney does no work on the case. The client gives the case to a second attorney who also does no work on the case. The second attorney also fails to tell the client he has not filed the form substituting himself in as the client’s new attorney. Because of this inactivity, the case never gets to the point where there is a hearing or a depos...
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Opinion We hold here that a defendant charged with kidnapping a person under the age of 14 years (Pen. 1 Code, §§ 207, subd. (a), 208, subd. (b)) may not rely on the defense of reasonable mistake as to the victim’s age. *114 Appellant Mary Lou Magpuso, who is also known as Susan Christine Buckman, was convicted by a jury of one count of kidnapping to rob (§ 209, s...
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Stephen A. Saccoccia was indicted for aiding and abetting the laundering of drug proceeds in violation of 18 U.S.C. §§ 2 and 1957. Saccoccia appeals the district court’s order denying his motion to dismiss his indictment for violations of both the Double Jeopardy Clause of the Fifth Amendment and the Swiss-Ameriean Treaty under which he was extradited. We affirm the district court’s ruling that S...
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Opinion RN Review for Nurses, Inc. (RN) appeals, from a judgment in favor of the State of California, Council for Private Postsecondary and Vocational Education (Council), State Board of Control (Board), and various named members of the Council and Board holding that the Private Postsecondary and Vocational Education Reform Act of 1989 (Act) (Ed. Code, 1 § 94300 et seq.) requires RN to pay an...
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Opinion Defendant German Maldonado Valdez appeals from the judgment entered following a jury trial that resulted in his conviction for *48 continuous sex abuse of a child under the age of fourteen (count 1, Pen. Code, § 288.5) 1 and five lewd acts with the same child (counts 2 to 6, § 288, subd. (a)) consisting of two acts of sodomy and three of oral copulation. It was also found that as to...
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I respectfully dissent. Contrary to my colleagues, I apply the Putnam standard,1 and in doing so conclude the trial court abused its discretion in dismissing this case. In my opinion, Putnam provides long overdue guidance to trial courts in exercising their discretion to dismiss cases where service is not accomplished within two years after filing the complaint. I have considered and expressly rej...
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Opinion After the court denied her motion to suppress evidence, defendant entered a negotiated plea of no contest to two counts charging possession for sale of, respectively, cocaine and methamphetamine and admitted committing one of the crimes while on bail (Health & Saf. Code, §§ 11351, 11378; Pen. Code, § 12022.1). On appeal defendant, a Nevada probationer, contends the court erred in ...
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23 Cal.App.4th 144 (1994) 28 Cal. Rptr.2d 359 NORTH COUNTY PARENTS ORGANIZATION FOR CHILDREN WITH SPECIAL NEEDS, Plaintiff and Appellant, v. DEPARTMENT OF EDUCATION, Defendant and Respondent. Docket No. D016698. Court of Appeals of California, Fourth District, Division One. March 10, 1994. *145 COUNSEL Charles Wolfinger for Plaintiff and Appellant. *146 Joseph R. Symkowick, Roger D. Wolfertz and ...
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23 Cal.App.4th 155 (1994) 28 Cal. Rptr.2d 365 THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY BOLANDER, Defendant and Appellant. Docket No. H008927. Court of Appeals of California, Sixth District. March 10, 1994. *156 COUNSEL Richard J. Ingram, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attor...
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18 F.3d 802 62 USLW 2572, 4 A.D.D. 1004, 4 NDLR P 438 CITY OF EDMONDS, a municipal corporation, Plaintiff-Appellee,v.WASHINGTON STATE BUILDING CODE COUNCIL, Defendant,andOxford House, Inc., a Delaware corporation; OxfordHouse-Edmonds, an unincorporated association, andHerb Hamilton, Defendants-Appellants.UNITED STATES of America, Plaintiff-Appellant,v.CITY OF EDMONDS, a municipal corporat...
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18 F.3d 1449 62 USLW 2596, Fed. Sec. L. Rep. P 98,115 Joy SILBER, on behalf of herself and all others similarlysituated, Plaintiff-Appellee,Arthur P. Argyris, Class Member, Plaintiff-Appellant,v.Stuart P. MABON; Dundas I. Flaherty; Eugene F. Hovanec;Ericson M. Dustan; Edwin P. Heacox; andMicropolis Corporation, Defendants-Appellees. No. 92-56004. United States Court of Appeals...
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18 F.3d 807 UNITED STATES of America, Plaintiff-Appellee,v.Marizu Jite OGBUEHI, aka Morris Ogbuehi, aka Mariczu JiteOgbuehi, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Payton Eugene TEAGUE, aka Eugene P. Teague, Defendant-Appellant. Nos. 93-50109, 93-50243. United States Court of Appeals,Ninth Circuit. March 15, 1994. Eugene G. Iredale, San Diego,...
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OPINION BACKGROUND On February 19, 1993 Appellant Seymour Licht (“Licht”) filed a Motion to Terminate the Equity Holders Committee (“Motion to Terminate”) in the America West bankruptcy case. On February 27, 1993, the Official Committee of Equity'Security Holders (“Equity Committee” or “Committee”) filed a motion to strike Licht’s Motion to Terminate. The Committee also requested that Licht be s...
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OPINION The debtor proposed a plan of reorganization that restructured the construction loan of the largest secured creditor into permanent financing. The plan paid the note on a 25 year amortization schedule with a balloon payment due at the end of the seventh year. The bankruptcy court found that the plan was proposed in good faith and satisfied the fair and equitable standards under 11 U.S...
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Opinion Anthony Kwan sued Mercedes-Benz of North America, Inc. (MBNA) for violation of the refund-or-replace provision of the Song-Beverly Consumer Warranty Act (the Act) (Civ. Code, §§ 1790, 1793.2, subd. (d)(2)), 1 arising out of Kwan’s purchase of a new Mercedes-Benz. Kwan received a jury award of $186,000. MBNA appeals, claiming the court erred in its instructions defining a “willful” vio...
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*197 Opinion A plaintiff class of pensioners under the Public Employees’ Retirement System (PERS) and its class representatives obtained judgment directing issuance of a writ of mandate commanding the respondent class of more than 1,350 California public agencies and the Board of Administration of PERS to increase pensioners’ retirement allowances. The trial court judgment rests on an inter...
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18 F.3d 1456 28 Fed.R.Serv.3d 724 QUILEUTE INDIAN TRIBE, Plaintiff-Appellant,v.Bruce BABBITT, in his capacity as Secretary of the Interior;United States Department of Interior, Bureau of IndianAffairs; Interior Board of Indian Appeals; United Statesof America; Quinault Indian Nation, Defendants-Appellees. No. 92-36833. United States Court of Appeals,Ninth Circuit. Argued and...
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Gregory Lennick appeals his marijuana trafficking conviction following a jury trial. 21 U.S.C. §§ 841(a)(1), 846, & 18 U.S.C. § 2. He argues that the district court erred in denying his motion to dismiss his indictment; that the evidence was insufficient to support his conspiracy and manufacture convictions; that the district court erred in qualifying a police officer as an expert witness; and ...
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Appellee has filed a motion to dismiss appeal no. 93-35921 for lack of jurisdiction. Appellee contends that the notice of appeal was filed during the pendency of a timely Fed.R.Civ.P. 59 motion to amend the judg *445 ment, and, therefore, under the Appellate Rules in effect at the time, the notice of appeal is a nullity. See Fed.R.App.P. 4(a)(4); Griggs v. Provident Consumer Discount, 459 U...
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Opinion After an administrative hearing (Veh. Code, § 13558), the Department of Motor Vehicles (Department) suspended plaintiff’s driver’s license for one year. The hearing officer found, among other things, that the arresting officer had reasonable cause to believe plaintiff had been driving a motor vehicle while he was under the influence of an intoxicant. Plaintiff petitioned the superior co...
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Opinion Victor E. appeals after the court denied de facto parent status to Victor’s mother and sisters in this dependency proceeding involving Victor’s child, Vanessa Z. Victor contends the court abused its discretion because his mother and sisters met the criteria for de facto parents and no interest was furthered by denying them that status. We conclude Victor lacks standing to challenge the or...
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Opinion In this appeal, plaintiff Nicolas Marsch III 1 appeals a judgment confirming an arbitration award. The award was made by an arbitration panel (Panel) at the conclusion of an arbitration proceeding between Marsch and defendant Ronald Williams, 2 both of whom are partners in the Horizon Properties general partnership. The award appointed one of the Panel member...
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MEMORANDUM AND ORDER This action came on for hearing before the Court on October 18, 1993, the Honorable William J. Rea, United States District Judge, presiding, on a Motion for Summary Judgment of Defendants and Counterclaimants THOMAS BROTHERS RESTAURANT CORPORATION, THOMAS BROTHERS DEVELOPMENT CORPORATION, MARK C. THOMAS, and NICHOLAS THOMAS. After considering all papers submitted...
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*252 Opinion In this appeal, defendant Ronald Williams and entities he controls 1 (unless otherwise indicated, collectively Williams) appeal an order denying their petition to compel arbitration of claims brought against them by plaintiff and respondent Nicolas Marsch III. Because Marsch’s claims are not related to or grow out of any agreement which provides for arbitr...
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On September 5, 1991, a lone robber, wearing a dark mask and armed with a silver handgun, entered a bank in Berkeley, California, and took $24,625 from the bank’s teller drawers. The robbery was styled a “takeover” robbery by the police because the robber went behind the teller counter and removed the money himself. Two weeks later, on September 19, 1991, at 10:30 a.m., two men entered a San Lean...
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Opinion The City and County of San Francisco (City) has a longstanding practice of granting to private entities what amounts to an exclusive franchise to collect refuse. The issue presented is whether the City’s authority to enter into this type of arrangement survived passage of the California Integrated Waste Management Act of 1989. 1 We conclude that the City still has the p...
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Opinion Edward Dore (Dore) appeals from the trial court’s denial of his petition for writ of mandate to compel respondent, County of Ventura (the County), to issue a planned development permit (PDP) for construction of a commercial building in the community of Bell Canyon. 1 We affirm. Facts Bell Canyon Community is an exclusive, guard-gated, rural enclave with 796 lots on which 484 homes...
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*333 Opinion In this eminent domain action a pipeline corporation has as its only customer its parent company. We hold it may be a public utility as defined in Public Utilities Code section 216. The pipeline corporation thus has the power of eminent domain. (Pub. Util. Code, § 615.) We also hold that a business need not relocate to qualify for damages due to loss of goodwill under Code of C...
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Opinion I Procedural Background Appellants, Judi L. Guinn and Steven L. Guinn (Guinns), filed a complaint for negligence, dangerous condition of public property, trespass, *265 nuisance, inverse condemnation, and negligent infliction of emotional distress against respondent, James L. Dotson (Dotson), the City of Beaumont (City) and certain contractors regarding the construction of a stree...
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19 F.3d 445 62 USLW 2639, 44 Soc.Sec.Rep.Ser. 60,Medicare&Medicaid Guide P 42,171 Margaret DOWLING and Vernon Cox, on behalf of themselves andthe Medicaid Class and In-Home Supportive Class,Plaintiffs-Appellants,v.Gray DAVIS, Controller of the State of California; andThomas W. Hayes, Treasurer of the State of California;Kenneth Kizer, Director of Department of Health Services,State of...
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18 F.3d 1482 GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee,v.CITY AND COUNTY OF SAN FRANCISCO and Brad Paul,Defendants-Appellants.GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee,v.CITY AND COUNTY OF SAN FRANCISCO and Brad Paul, Defendants,andTenderloin Housing Clinic, Inc., Defendant-Appellant.GOLDEN GATE HOTEL ASSOCIATION, Plaintiff-Appellee,v.CITY AND COUNTY OF SAN FRANCISCO and Brad P...
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OPINION On appeal are separate judgments of non-dischargeability in adversary proceedings under 11 U.S.C. § 523(a)(6). 1 In a U.S. district court action, the court awarded appellee Ti-cor Title Insurance Company of California treble damages and attorney’s fees against the debtor under RICO, as well as a coextensive award for compensatory and punitive damages for fraud. In a state court cred...
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Opinion Plaintiff Main & Von Karman Associates (M&VK) appeals from a judgment denying its claim for refund of real property taxes. Because the county assessor failed to follow the mandatory provisions of rule 4 of the State Board of Equalization (Cal. Code Regs., tit. 18, §4) in using the comparable sales approach to value in calculating the fair market value of the properties, we reverse...
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First Capital Holdings Corporation (FCH), through its subsidiaries, issued annuities and life insurance policies to over 500,000 policyholders. Shearson Lehman Brothers, a wholly-owned subsidiary of Shearson Lehman Brothers Holdings, which is a wholly-owned subsidiary of American Express Company, issued many of the policies. In May 1991, FCH fell victim to the crash of the junk bond market. A clas...
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Joe Henry McMillan, a California state prisoner, brought a petition for habeas corpus in the federal district court, which denied it. He appeals. We affirm the denial of the writ. FACTS AND PRIOR PROCEEDINGS McMillan was convicted in 1981 of committing a murder in the course of an attempted robbery in violation of California Penal Code § 187 and was sentenced to 25 years to life. The eviden...
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19 F.3d 449 145 L.R.R.M. (BNA) 2769, 62 USLW 2591,128 Lab.Cas. P 11,104 Robert H. MILLER, Regional Director of Region 20 of theNational Labor Relations Board, for and on Behalfof the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellant/Cross-Appellee,v.CALIFORNIA PACIFIC MEDICAL CENTER,Respondent-Appellee/Cross-Appellant. Nos. 92-15721, 92-15746. United States Court of Appeals,Nint...
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Nicholas Valentino raises a question of first impression under the sentencing guidelines for false statements on tax returns. FACTS Appellant pleaded guilty to willfully un-derreporting his interest income, 26 U.S.C. § 7206(1), and lying about his income in a loan application, 18 U.S.C. § 1014. He stipulated to the facts in his plea agreement. He willfully concealed almost $100,000 of...
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Opinion Plaintiff George Applegate appeals from the portion of the judgment of the trial court awarding costs to defendants following his dismissal of the underlying action on thé day of trial. We affirm. I Defendant St. Francis Lutheran Church owns a building on Belcher Street in San Francisco, which it rents to defendant Friends of St. Francis Child Care Center, Inc. Plaintiff...
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Opinion The case at bench requires this court to resolve the following question: May a purchaser of real property who learns of potential material misrepresentations about the property after execution of a purchase agreement—but before consummation of the sale—close escrow and sue for damages? Our answer is, “yes.” I. Factual and Procedural Background A. Facts 1 On ...
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Opinion California law requires that workers on public works projects be accorded the same working conditions and wages that prevail in private industry. The California Department of Industrial Relations (Department) is charged with determining what wages are prevailing for specific *349 types of work at any given place and time; its determinations are binding on the parties ...
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Opinion Appellant Domanic B. contends the juvenile court acted improperly when it ordered that he receive a stayed commitment to the California Youth Authority (CYA), as in effect a condition of probation. There is a conflict in our district on this point. Certain dicta contained in a decision of Division Two, In re Ronnie P. (1992) 10 Cal.App.4th 1079, 1089-1090 [12 Cal.Rptr.2d 875], apparen...
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Gutberto Beltran-Gutierrez (Gutierrez) appeals from the judgment of conviction for conspiracy to possess with intent to distribute heroin and possession with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)©, and 18 U.S.C. § 2. He contends that his Fifth Amendment privilege against self incrimination was violated because the prosecutor introduced his suppression h...
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*709 Opinion Appellant Sequoyah Hills Homeowners Association (appellant) timely appeals from denial of a petition for writ of mandate by which it sought to overturn a decision by respondent Oakland City Council to approve a housing development in the Oakland Hills. Appellant asserts that the environmental impact report (EIR) 1 and the findings underlying the city’s approval of the project w...
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In this companion ease to Nos. 91-16669, 91-16685, and 91-16687, 19 F.3d 1291 (9th Cir.1994), decided on this day, the appellants, Jaffe & Schlesinger, P.A., Ginsburg, Feld-man & Bress, Ferguson & Burdell and Wein-stein, Hacker, Yost, Berry & Mathews (collectively known as the “Haberman counsel”), appeal the district court’s denial of their fee and expense application for work done in state court ...
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Plaintiff Ten Fong Craig (widow of William H. Craig), individually and as administratrix of the estate of William H. Craig, appeals the district court’s judgment in favor of defendants Atlantic Richfield Co., Brinkerhoff Maritime Drilling Corporation and Crowley Maritime Corporation. The district court held that (1) plaintiff was not entitled to a .jury trial, (2) the Sinkler/Hopson ...
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19 F.3d 1291 62 USLW 2610, Fed. Sec. L. Rep. P 98,137 In re WASHINGTON PUBLIC POWER SUPPLY SYSTEM SECURITIES LITIGATION.CLASS PLAINTIFFS; Chemical Bank, in its representativecapacity as Trustee for Bondholders, Plaintiffs,andBernstein, Litowitz, Berger & Grossman; Milberg, Weiss,Bershad, Specthrie & Lerach; Molloy, Jones &Donahue, P.C.; et al., Appellants,v.CITY OF SEATTLE...
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ORDER The petition for rehearing is DENIED. The request for publication is GRANTED. The memorandum disposition filed January 25,1994 is redesignated as an authored opinion by Judge Goodwin. Petition to Review a Decision of the Occupational Safety and Health Review Commission. Before: GOODWIN, WIGGINS and BRUNETTI, Circuit Judges. OPINION Loomis Cabinet Company (“L...
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On June 22, 1980, the bodies of Scott Currier and Kimberly Palmer were found in a forest in Idaho. Petitioner Donald Paradis and Thomas Gibson were tried jointly and acquitted of Currier’s murder in September 1980. Paradis and Gibson were tried separately in Idaho for the murder of Palmer. Both were convicted after trial by jury and sentenced to death by Judge Gary Haman, who found that they had ...
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19 F.3d 479 1994 Copr.L.Dec. P 27,233, 30 U.S.P.Q.2d 1654 Sutton ROLEY, Plaintiff-Appellant,v.NEW WORLD PICTURES, LTD., aka: New World Entertainment,Ltd.; Odyssey Film Partners, Ltd., aka: OdysseyEntertainment, Ltd.; Walter Coblenz;William Condon; GinnyCerrella,Defendants-Appellees. No. 92-56116. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 31, 1...
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Opinion Appellant Judith A. von der Nuell (wife) appeals an interlocutory judgment following a bifurcated trial in a marital dissolution proceeding.1 The issue presented is whether the trial court erred in holding the date of separation of the parties to be November 1,1987, the date respondent Achim von der Nuell (husband) moved out of the family residence. The critical inquiry in determining the...
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Opinion Real party in interest brought an action against petitioners alleging libel and intentional interference with prospective economic advantage in connection with petitioners’ publication in their biweekly financial newsletter of a commentary criticizing real party’s advertisements in the Wall Street Journal. After the trial court overruled petitioners’ demurrer, they petitioned this...
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Opinion Plaintiff and appellant Pavarud Srithong (Srithong) appeals a judgment holding defendants and respondents Total Investment Company *724 and Michael and Bok Kwon (collectively, Total) not jointly and severally liable with a codefendant for Srithong’s noneconomic damages. 1 In this case of first impression, the issue presented is whether Civil Code section ...
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Opinion The question presented by this appeal is whether the surety on a construction bond is liable for attorney fees incurred by a bond beneficiary. The beneficiary’s contract with the surety’s principal calls for the payment of fees to the prevailing party in the event of any legal action. Following the statutory mandate that a surety’s liability is commensurate with that of its p...
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23 Cal.App.4th 830 (1994) 28 Cal. Rptr.2d 560 BOARD OF SUPERVISORS OF RIVERSIDE COUNTY et al., Petitioners, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent; TEMECULA RANCHOS, Real Party in Interest. Docket No. E013090. Court of Appeals of California, Fourth District, Division Two. March 22, 1994. *833 COUNSEL William C. Katzenstein, County Counsel, Lorenz, Alhadeff, Cannon & Rose and St...
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Ruta Marie Kahn, a native and citizen of Canada, was admitted to the United States as a permanent resident alien in 1978 and has lived in California since. Kahn was convicted of money laundering and conspiracy to manufacture methamphetamine. The Immigration and Naturalization Service (INS) found Kahn deportable under 8 U.S.C. §§ 1251(a)(11) and 1251(a)(4)(B) because of her drug conviction, and she...
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ORDER The opinion filed January 13, 1994 is withdrawn and the opinion and separate concurrence filed concurrently herewith are filed in its stead. OPINION We consider the following question in this appeal: To what extent is a district court obliged to consider the policy statements of Chapter 7 of the United States Sentencing Guidelines in imposing a sentence when it revokes a defendant’s probatio...
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Opinion Defendant Whitley Heights Civic Association (Association), an association of homeowners, appeals from a judgment in favor of plaintiff Citizens Against Gated Enclaves (CAGE) and two individual plaintiffs. The court found that pursuant to Vehicle Code section 1 21101.6, the Association was prohibited from placing gates on its streets. The Association contends that s...
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*827 Opinion We hold that a woman has no reasonable expectation of privacy in a purse left in a stolen car. Hence, she has no “standing” to contest a search of the purse by police officers. Following the denial of her motion to suppress evidence 1 (Pen. Code, § 1538.5), defendant entered a negotiated plea of no contest to a charge of receiving stolen property. (Pen. Code, § 496, former su...
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*762 Opinion Introduction At the times relevant to this case, it was settled law under the National Labor Relations Act (NLRA) 1 and the Immigration and Nationality Act (INA) 2 that nonagricultural workers were not entitled to remedial backpay during any period when they were not present in the United States. (Sure-Tan, Inc. v. NLRB ...
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In Oltz v. St. Peter’s Community Hosp., 861 F.2d 1440 (9th Cir.1988) we remanded this antitrust case for a new trial on damages. The trial court then determined that Oltz could not prove damages greater than the offsetting settlement sums he had already received and granted St. Peter’s Motion for Summary Judgment on damages. We reverse and remand for trial. I. Background Be...
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OPINION Security Experts, Incorporated (“SEI”) appeals the district court’s judgment in favor of Alfred F. Tonry’s action for breach of an implied employment contract action. SEI also appeals the district court’s dismissal of its counterclaims for breach of the duty of loyalty and the implied covenant of good faith and fair dealing. Finally, it appeals the district court’s award of damages. We af...
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We must decide whether customs officials violated 19 U.S.C. § 482 by improperly searching international mail. I This case is about a package which turned out to contain opium. Customs officials noticed it came from Turkey, a common source of drugs, and was addressed to a post office box, a common destination for narcotics. As a result, customs officials opened the package *1316 and found 75...
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Opinion We hold that firefighters who develop cancer after being exposed to carcinogens in the course of employment need not show that their cancer was proximately caused by those carcinogens in order to benefit from the presumption of industrial causation established in Labor Code section 3212.1. 1 Background Walter Smith (applicant), born September 10, 1947, was a fire...
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Opinion Plaintiff Karen Juran (Karen) brought this action against her stepfather, defendant David Epstein (David). Karen alleged David breached an oral agreement by revoking a 1985 will he executed while Karen’s mother, Charlotte Epstein (Charlotte), was alive. David successfully moved for summary judgment pursuant to Probate Code section 150. 1 Karen appeals. We reverse the ju...
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Opinion Paralift, Inc. (Paralift) is a defendant in a wrongful death action filed by Danielle Davida Levin by and through her guardian ad litem Lisa Smalley, Stanley Levin, Estelle Levin and James T. Rinn, representative of the estate of Alan David Levin. Paralift seeks a writ of mandate directing the trial court to grant its motion for summary judgment on either of two theories: A releas...
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Opinion Insurance Code section 10119 requires an insurer to cover, “from and after the moment of birth,” the newborn infant of any *900 covered family, but is silent as to the duration of such coverage. 1 In this case, we hold that such unconditional coverage extends for 31 days after the birth. We also hold, because the insured here did not apply for coverage for ...
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Opinion The Department of Motor Vehicles (the DMV) has a state-approved form (DS 367A) for reporting chemical test results to the DMV when a police officer administratively suspends a licensee’s driving privilege pursuant to Vehicle Code section 13353.2 (driving with a blood-alcohol concentration of 0.08 percent or more). 1 The form requires the test results to be sworn. For re...
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*1142 Opinion Tills is an appeal from a multimillion dollar judgment in a bad faith action brought by 13 investors in Technical Equities Corporation (Technical Equities) against the company’s primary insurance carrier, National Union Fire Insurance Company of Pittsburgh, Pa. (National Union). Technical Equities, a diversified investment services company, financially collapsed in ...
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*1171 Opinion Plaintiff and appellant KFC Western, Inc. (KFC) appeals a judgment of dismissal following the sustaining of a demurrer without leave to amend interposed by defendants and respondents Alan Meghrig and Margaret Meghrig (the Meghrigs) to KFC’s first amended complaint. The issues presented include: whether KFC’s cause of action under Health and Safety Code section ...
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23 Cal.App.4th 1193 (1994) 28 Cal. Rptr.2d 822 ELIZABETH MENDLY et al., Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Docket No. B073226. Court of Appeals of California, Second District, Division Seven. March 25, 1994. *1198 COUNSEL Mark D. Rosenbaum, Robert D. Newman, Richard A. Rothschild, Nancy Mintie, Paul, Hastings, Janofsky & Walker, John H. Bri...
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Opinion I. Introduction This is an appeal by the Resolution Trust Corporation (RTC), as receiver of Far West Federal Bank of Portland, Oregon (Far West), from an order granting summary judgment to plaintiffs entered by the Honorable Charles C. Lee of the Los Angeles County Superior Court. In an unpublished memorandum opinion filed on August 24, 1993, this court reversed the judg...
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We must decide whether the district court properly barred testimony of witnesses as a sanction for failure to serve a witness list on opposing counsel. I In July 1982, Dr. Ortega filed suit in the district court against Dr. Dennis O’Connor, Executive Director of the Napa State Hospital, and various other Hospital employees (collectively “Dr. O’Connor”), alleging that the search of his...
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Opinion In this case we hold that an encumbrance by a debtor to an attorney, made for value in the form of an antecedent obligation for legal services, is not fraudulent as to another creditor, under applicable provisions of the Uniform Fraudulent Transfer Act (Civ. Code, § 3439 et seq.; the Act), and that this is true even though the transfer was a preference that resulted in the debtor ...
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Opinion In this action by retailers for a refund of a local sales tax, defendant State Board of Equalization (SBE) and intervener San Francisco Educational Financing Authority (EFA) appeal from summary judgment entered in favor of plaintiffs, Hoogasian Flowers, Inc., Ace Pharmacy, Diane O., and Surf Pharmacy (the retailers). The sales tax at issue in this case was imposed by EFA pursuant to an ...
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Opinion Plaintiff obtained a judgment against defendant for breach of a written contract and was awarded his costs. Although he is not an attorney and appeared in the action pro se, plaintiff sought an award of attorney fees pursuant to the attorney fee clause of the contract for the time he spent on the case. The trial court declined to award the requested fees. On appeal, plaintiff cont...
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We recall the mandate in this case and withdraw the opinion published at 3 F.3d 1217 (9th Cir.1993). So ordered. ...
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Opinion Introduction Petitioner, State Farm Mutual Automobile Insurance Company (State Farm), seeks a writ of mandate directing the respondent court to vacate an order compelling arbitration of an uninsured motorist claim filed by its insured, plaintiff John Soltero (Soltero). The insurer of the tortfeasor in Soltero’s underlying action became insolvent after suit was filed against t...
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Opinion Appellant, the father of Moriah T. and Harry T., appeals from a juvenile court order which terminated reunification services and scheduled a hearing to select and implement a plan of adoption, guardianship, or long-term foster care for the minors (Welf. & Inst. Code, §§ 366.22, subd. (a), 366.26; further section references are to the Welfare and Institutions Code), and which conti...
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Opinion In this case, we are called upon to decide as a matter of first impression the scope of a Probate Code section 3601 order approving expenses on a minor’s compromise. We conclude the statute gives the court *1380 the power to decide reasonable expenses to be paid from the settlement, not the reasonable value of the services rendered to the minor. Factual and Procedural Background ...
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*1403 Opinion Metropolitan Outdoor Advertising Corporation appeals after the court denied its petition for peremptory writ of administrative mandamus. We affirm. I In 1981, Metropolitan received a “Conditional Use Permit” allowing it to erect a billboard in Santa Ana. When the permit expired, Metropolitan was “responsible for securing removal of the subject sign structure without expense ...
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20 F.3d 987 NIKE, INC., an Oregon corporation, Plaintiff-Appellant,v.COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanishcorporation; S.A. Distribuciones Internacionales,a Spanish corporation; Carlos RosalBertrand, Defendants-Appellees.NIKE, INC., an Oregon corporation, Plaintiff-Appellee,v.COMERCIAL IBERICA DE EXCLUSIVAS DEPORTIVAS, S.A., a Spanishcorporation; S.A. Distribuciones In...
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Hoa Cam Lam pled guilty to the offense of being in possession of an unregistered sawed-off shotgun. 26 U.S.C. § 5861(d). He was sentenced in a proceeding where the district judge said that he would depart if he could but lacked the discretion to do so. Lam appealed and we now vacate the sentence and remand. BACKGROUND Lam is the oldest son of a Vietnamese family that, amid great trava...
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Per Curiam Marvin McCoy appeals his conviction and sentence for distributing over five grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(l)(B)(iii). He claims the district court erred in 1) excluding extrinsic evidence of alleged misconduct by a government informant; 2) determining that the prosecution’s peremptory challenge to a juror was based on a “race-neutral” reáson and...
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Donald B. Phillips appeals pro se the district court’s summary judgment in favor of *1007 the United States in the government’s action to recover on several defaulted student loans. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 ...
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ORDER AMENDING OPINION AND DENYING REHEARING The opinion filed August 13, 1993, slip op. 8761, and appearing at 1 F.3d 957 (9th Cir.1993), is amended as follows: Slip Opinion at 8767-68, 1 F.8d at 959-60: Delete the text following the citation to United States v. Brinklow, 560 F.2d 1003, 1006 (10th Cir.1977), cert. denied, 434 U.S. 1047, 98 S.Ct. 893, 54 L.Ed.2d 798 (1978). Beginning,...
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Opinion Sharon L. Reuling (Wife) appeals a judgment allocating community property following the dissolution of her marriage to Irvin Reuling (Husband). Her principal contention is that the trial court erred in selecting the valuation date for shares of stock and stock options acquired by Husband during the marriage. Husband cross-appeals from the order awarding Wife attorney fees. We affi...
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Opinion The County of Los Angeles (the County) appeals the judgment denying its petition for writ of mandate to compel County Auditor-Controller Alan T. Sasaki (Sasaki) to disburse property tax receipts in accordance with County Ordinance No. 93-0045. That ordinance provides for apportionment of property tax revenues for fiscal year 1993-1994 in accordance with their apportionment in 1992...
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*1491Opinion Defendant Scott Campbell was convicted by jury of the second degree murder of Daniel Willis (Pen. Code, § 187; all subsequent undesignated section references are to the Penal Code). The jury also found that he personally used a shotgun during the murder (§ 12022.5, subd. (a)). He was acquitted of assaulting Robert McAlvain with a firearm (§ 245, subd. (a)(2)). Following his sentence ...
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Opinion Plaintiffs Gregory Don Hunsucker, Linda Mae Hun-sucker, Michelle Hunsucker and Jerry Hunsucker appeal from the judgment entered against them after the court granted the motion of defendant Sunnyvale Hilton Inn for summary judgment. We shall affirm. Facts Plaintiff Gregory Don Hunsucker is president of United Food and Commercial Workers Union, Local 1288. On June 18, 1990...
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20 F.3d 1017 146 L.R.R.M. (BNA) 2009, 62 USLW 2672,127 Lab.Cas. P 11,070 NATIONAL LABOR RELATIONS BOARD, Petitioner-Cross-Respondent,The Atchison, Topeka & Santa Fe Railway Company, Petitioner-Intervenor,v.GENERAL TRUCK DRIVERS, WAREHOUSEMEN, HELPERS AND AUTOMOTIVEEMPLOYEES OF CONTRA COSTA COUNTY, LOCAL NO. 315,Respondent-Cross-Petitioner. No. 92-70417. United States Court of ...
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Plaintiffs Pacific Northwest Venison Producers and several of its members (collectively, “PNVP”) appeal the district court’s summary judgment in favor of the Washington Department of Wildlife and the Washington State Wildlife Commission (collectively, “Department of Wildlife” or “Department”), upholding the constitutionality of the Department’s regulations banning the private ownership and exchang...
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OPINION Jieme N. Portin and Ruben Y. Navarro appeal their sentences imposed following entry of guilty pleas to conspiracy to commit interstate travel in aid of racketeering enterprises in violation of 18 U.S.C. §§ 2, 371, 1952 (“ITAR bribery”), and wire fraud in violation of 18 U.S.C. §§ 2, 371, 1343. Appellants contend the district court exceeded its authority to correct sentencing errors purs...
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In November 1992, Appellants Joseph W. Rose and Michael A. Peterson were each found guilty in separate jury trials in the United States District Court for the Eastern District of California of twelve counts of mail fraud, three counts of wire fraud, eight counts of money laundering and four counts of interstate transportation of stolen property under 18 U.S.C. §§ 1341, 1343, 1956(a)(1)(A)© and 23...
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OPINION The chapter 7 trustee objected to debtor’s claim of homestead exemption, arguing that debtor was not entitled to claim such exemption under §§ 522(b) and (g)(1). 2 The bankruptcy court overruled the trustee’s objection and entered an order in favor of the debtor. We REVERSE the bankruptcy court’s order. FACTS On July 7, 1992, John L. Glass (the “Debt- or”), filed a petition un...
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OPINION This appeal arises from an order confirming the debtor’s Chapter 13 1 plan which modified the rights of a lender whose note *767 was secured by a deed of trust on the debt- or’s principal residence. We REVERSE and REMAND. I.FACTS In May 1984, the debtor, Colleen Reeves, (“Reeves”), granted a first deed of trust on her residence to appellants, ...
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The debtor filed a complaint under 11 U.S.C. § 505 2 seeking to have his tax liabiHty determined, claiming that he was constitutionally exempt from federal income taxes. The IRS filed a motion to dismiss. The bankruptcy court granted the IRS’s motion. The debtor appeals. We AFFIRM. I. FACTS The debtor, John D. Robnett (“Robnett”) had failed to file his federal income tax returns for the yea...
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Opinion Can a contracting party be held liable in tort for conspiracy to interfere with its own contract? Following a line of appellate cases, the *508Court of Appeal answered this question in the affirmative. Our study of applicable precedent and policy yields a contrary answer. We will therefore reverse the judgment of the Court of Appeal. Facts and Proceedings Below Plaintiff Applied Equipment...
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Opinion We are asked to decide whether the right of local government employees to sue a public agency for violations of the Meyers-Milias-Brown Act (MMBA, Gov. Code, § 3500 et seq.) extends to attorneys who are employed in the office of the Santa Clara County Counsel (County Counsel), or whether the duty of loyalty imposed upon these attorneys towards their client, the County of Santa Clara (Coun...
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7 Cal.4th 478 (1994) 869 P.2d 440 28 Cal. Rptr.2d 461 WASTE MANAGEMENT OF THE DESERT, INC., et al., Plaintiffs and Respondents, v. PALM SPRINGS RECYCLING CENTER, INC., Defendant and Appellant. Docket No. S029150. Supreme Court of California. March 31, 1994. *481 COUNSEL Crandall & Traver, Lynn D. Crandall and Lisa A. Garvin for Defendant and Appellant. Flanigan & Flanigan, Timothy H. Flan...
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Opinion Defendant/appellant Jaymar-Ruby, Incorporated, appeals a judgment entered pursuant to a settlement agreement with plaintiff/respondent Arthur Kohn in respondent’s action for wrongful termination. Appellant contends the trial court abused its discretion in entering judgment because the agreement was invalid and unenforceable. We affirm. Facts and Procedural History Respondent’s compl...
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Opinion On July 5, 1989, plaintiff Lykes Bros. Steamship Co., Inc. (Lykes), filed this action against the State Board of Equalization (Board), to recover $32,076 in sales and use taxes paid under protest, plus interest thereon from date of payment. Trial was by the court, sitting without a jury. Following Lykes’s presentation of evidence, the Board filed a motion for judgment pursuant to ...
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Opinion A jury convicted defendant Mauricio Ernesto Funes 1 of one count of second degree murder (Pen. Code, § 187) 2 and one count of participating in a criminal street gang (§ 186.22, subd. (a)). With respect to the murder count, the jury further found that defendant had used a dangerous and deadly weapon (a baseball bat) (§ 12022, subd. (b)), and had committed the...
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23 Cal.App.4th 1256 (1994) 29 Cal. Rptr.2d 100 PLANET INSURANCE COMPANY, Plaintiff and Respondent, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Appellant. Docket No. G013373. Court of Appeals of California, Fourth District, Division Three. March 25, 1994. *1258 COUNSEL Cassidy, Warner, Brown, Combs & Thurber and Glen A. Stebens for Defendant and Appellant. Mower, Koeller, Nebeker ...
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The motion of respondent for leave to proceed in forma pauperis is granted. Petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit granted....
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20 F.3d 375 CHEMICAL BANK; National Westminister Bank USA, Plaintiffs-Appellees,v.SECURITY PACIFIC NATIONAL BANK, Defendant-Appellant.CHEMICAL BANK; National Westminister Bank USA, Plaintiffs-Appellants,v.SECURITY PACIFIC NATIONAL BANK, Defendant-Appellee. Nos. 92-16522, 92-16560. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 12, 1994.Decided April 4, 19...
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Part I of the opinion by Senior District Judge KAUFMAN; Part II by Judge REINHARDT. All members of the court join in all three parts of the opinion. delivered Part I of the opinion of the court. REINHARDT, Circuit Judge, delivered Part II of the opinion of the court. I Sheldon Sanders appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Sheld...
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This pretrial appeal arises out of an alleged shooting near Nogales, Arizona. The State of Arizona has charged former United States Border Patrol Agent Michael Elmer with ten counts of aggravated assault for allegedly shooting at 20 to 30 aliens who, on March 18, 1992, had crossed the Mexican border into the United States. Prior to trial, the State gave notice it intended to introduce evidence th...
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Elvis Robinson, Manuel Robinson, and Gregory Bogan (“appellants”) pleaded guilty to conspiracy to commit armed bank robbery and commission of armed bank robbery. The district court sentenced them to prison terms according to the applicable sentencing guideline ranges. The district court also imposed punitive fines and costs of incarceration and supervised release on appellants, pursuant to United...
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Opinion Marlowe Hill appeals from convictions of mayhem and aggravated assault. He contends the trial court gave an erroneous instruction pertaining to the mayhem count and improperly imposed the aggravated term in sentencing on that count. We affirm the conviction but remand for resentencing. Statement of the Case Appellant was charged by information filed on May 13, 1992, with...
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Opinion Plant Insulation Company (Plant) appeals from a judgment against it and in favor of Evea Merle Williamson, individually and as special administrator of the estate of Wash Chapel Williamson, for $1,067,041.90 in damages arising from Wash Williamson’s exposure to asbestos-containing products distributed by Plant. We reverse in part and affirm in part. Facts Wash Williams...
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Opinion Defendants were convicted of possession of a controlled substance for sale (cocaine), robbery and conspiracy to commit robbery. In addition, defendant Wagner was convicted of conspiracy to possess a controlled substance for sale. We conclude Wagner’s conviction for conspiracy to possess a controlled substance for sale must be reversed due to insufficient evidence and the sentences...
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23 Cal.App.4th 1576 (1994) 28 Cal. Rptr.2d 897 THE PEOPLE, Plaintiff and Respondent, v. VINCENT GUTIERREZ, Defendant and Appellant. Docket No. B066651. Court of Appeals of California, Second District, Division Seven. April 1, 1994. *1578 COUNSEL Catherine Fancher Campbell, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson...
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Opinion This is an appeal from a money judgment in favor of plaintiffs and against defendants Constantine Pappadopoulos and Metron Enterprises, Inc., awarded in an action for breach of contract, breach of fiduciary duty, misappropriation of partnership property and unjust enrichment. 1 Following a court trial, a judgment for $315,958 was entered against defendants. By subsequen...
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20 F.3d 1038 62 USLW 2637, 18 Employee Benefits Cas. 1033 EMPLOYEE STAFFING SERVICES, INC., in its capacity as sponsorand plan administrator of the Employee Staffing ServicesEmployee Welfare Benefit Plan; The Employee StaffingServices Employee Welfare Benefit Plan; Human ResourceTechnology dba Stafcor; and Pro City Apparel, Plaintiffs-Appellants,v.Lloyd W. AUBRY, Jr., as Director of the...
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OPINION FACTS AND PRIOR PROCEEDINGS Pursuant to a contract, Jean and Leonard Schmitz (“Appellants”) and Zilveti, Meris, and Prudential-Baehe Securities, Inc. (“Pru-Bache”) (collectively “Appellees”) submitted a dispute to arbitration before the National Association of Securities Dealers (“NASD”). Under the submission agreements, the dispute was to be arbitrated in accordance with the...
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On equal protection grounds William R. Wehr challenges the sentence imposed upon him for violation of 18 U.S.C. § 471. We affirm the judgment of the district court. PROCEEDINGS Wehr pleaded guilty to Counts 1 and 4 of a four-count indictment, in return for which the government dismissed Counts 2 and 3. He pleaded guilty to a charge of counterfeiting approximately $5,780 in falsely made fede...
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21 F.3d 314 62 USLW 2609 Alexis BARRERA-ECHAVARRIA, Petitioner-Appellee,v.Richard H. RISON, Warden, Respondent-Appellant. No. 93-56682. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1994.Decided March 31, 1994. Emily Anne Radford, U.S. Dept. of Justice, Washington, DC, for respondent-appellant. Karen N. Fredriksen, and Mark D. Kempl...
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I OVERVIEW The Director of the California Department of Corrections and the Attorney General of the State of California (collectively referred to as the “State”) appeal the district court’s grant of Charles Bland’s (Bland) habeas petition; 1 The district court concluded that the state trial court denied Bland his Sixth Amendment right to obtain counsel of his choice. We aff...
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19 F.3d 1318 Ross MIDDLEMIST, Wayne W. Maughan, Flathead Joint Board ofControl, Plaintiffs-Appellants,v.Secretary of the Interior, Bruce BABBITT; Director of theBureau of Indian Affairs, Portland Area, Stanley M. Speaks;Members of the Tribal Council of the Confederated Salish andKootenai Tribes, Michael Pablo, Sonny Morigeau, Louis Adams,Hank Baylor, et al., Defendants-Appellees. No. 93-3...
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Opinion Appellant was arrested on suspicion of burglary. While appellant was seated in the patrol car, the arresting officer asked him several questions regarding his identity in order to fill out a form required for booking. Appellant told the officer his name was Larry Quesenberry and he was born November 6, 1968. When the officer ran a computer check of the name and date of birth, the ...
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Opinion by Judge PREGERSON; Dissent by Judge O’SCANNLAIN. I.INTRODUCTION Appellant, Maryam Hartooni, appeals the Board of Immigration Appeals (“Board”) decision denying her application for asylum and withholding of deportation. We have jurisdiction under § 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). Ms. Hartooni makes two claims of error. First, she claims that she was den...
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Lowry claims ineffective assistance of counsel because his lawyer did not move to suppress evidence. We reject his claim. I. Facts An Arizona state prisoner told the prison warden that a number of his fellow inmates in cell block 6, the administrative segregation unit, planned a violent riot. The plan was to stab an inmate in order to lure a number of guards into the unit. The guards would th...
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21 F.3d 885 UNITED STATES of America, Plaintiff-Appellee,v.Lopez QUINTERO, Defendant-Appellant. No. 93-10217. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1993.Decided April 7, 1994. Fredric F. Kay, Federal Public Defender, Tucson, AZ, for defendant-appellant. Charles L. Jenkins, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee. ...
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21 F.3d 895 NEVADA ENTERTAINMENT INDUSTRIES, INC., a Nevada Corporation;Daniel Bishop, Plaintiffs-Appellants-Cross-Appellees,v.CITY OF HENDERSON, a Nevada Municipal Corporation; JamesGoff, Chief of Police and the City of Henderson,Defendants-Appellees-Cross-Appellants. Nos. 92-17054, 93-15052. United States Court of Appeals,Ninth Circuit. April 7, 1994. 1 Before: ...
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*1682Opinion Eli azar Sanchez appeals after a jury convicted him of two counts of robbery. He asserts the case must be remanded for resentencing because the trial court failed to state reasons for imposing consecutive, rather than concurrent, sentences. We affirm. Facts and Procedural History Jatindergit Singh testified that on February 15, 1992, he was working at a Quik Stop Store on Lei and Road...
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Opinion An employer, cited at noon for a failure to have workers’ compensation insurance coverage for its employees, complains that the statutory penalty should not have been imposed because, later the same day, a policy was finally obtained. We disagree. Facts Woodline Furniture Mfg. Co., Inc., which is owned by Yan Kats and his family, employs 131 people to manufacture oak fur...
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23 Cal.App.4th 1459 (1994) 28 Cal. Rptr.2d 734 TAHOE KEYS PROPERTY OWNERS' ASSOCIATION, Plaintiff and Appellant, v. STATE WATER RESOURCES CONTROL BOARD et al., Defendants and Respondents. Docket No. C012562. Court of Appeals of California, Third District. March 30, 1994. *1465 COUNSEL Feldman, Shaw, DeVore, Lewis S. Feldman and Deborah A. Palmer for Plaintiff and Appellant. Daniel E. Lungren, Att...
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*1716 Opinion The City of Chula Vista (City) appeals a judgment 1 dismissing its action after the court sustained demurrers by the County of San Diego (County) and Appropriate Technologies II, Inc. (Aptec) without leave to amend. The City had petitioned for writ and other relief after the County approved an agreement allowing Aptec to continue to operate its hazardous waste transfer and tre...
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Opinion Blue Skies Country Club, Inc. (defendant), has appealed from a postjudgment order which purported to interpret the provisions of a stipulated judgment entered into in 1977 (hereinafter, the 1977 judgment), which delineated the respective rights of defendant and Hi-Desert County Water District (the District) in the water of the Warren Valley Basin. Such interpretation operated to i...
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21 F.3d 895 24 Envtl. L. Rep. 20,854 APACHE SURVIVAL COALITION, et al., Plaintiffs-Appellants,v.UNITED STATES of America, and James Abbott, in his officialcapacity as Supervisor, Coronado National Forest,Defendants-Appellees,andThe University of Arizona, Defendant-Intervenor-Appellee.APACHE SURVIVAL COALITION, et al., Plaintiffs-Appellants,v.UNITED STATES of America, and James Abbott, in h...
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23 F.3d 218 Michael DUBINKA; John F. Coleman; Raul Meza, Plaintiffs-Appellants,v.JUDGES OF the SUPERIOR COURT OF the STATE OF CALIFORNIA forthe COUNTY OF LOS ANGELES; Daniel Lungren, Attorney Generalof the State of California; Ira Reiner, District Attorneyof Los Angeles County, Defendants-Appellees. No. 92-55736. United States Court of Appeals,Ninth Circuit. Argued and Submitte...
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Opinion by Judge T.G. NELSON; Concurrence by Judge Reinhardt. OVERVIEW Ralph Osborne (Osborne) appeals two district court orders which permitted the disclosure of grand jury transcripts to the plaintiffs in a separate civil case in which he was a cross-defendant. He contends that the district court erred because it granted an ex parte request for disclosure in violation of Fed.R.Crim.P. 6(e). W...
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Opinion Introduction On May 28, 1991, appellants Guillermo Bustos and Michael Loretto robbed and murdered Jacqueline Kirkham in a women’s restroom on Zuma Beach in Malibu. Appellants were under age 18 at the time, but were tried as adults. Appellants waived jury trial and, in light of confessions by each implicating the other, were tried separately by the court. As to Bustos, wh...
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Opinion by Judge FLETCHER, Concurrence and Dissent by Judge ALARCON. The government brings an interlocutory appeal to challenge the district court’s pretrial rulings that (1) Cheely cannot be subjected to the death penalty, and (2) Cheely’s statements to investigating postal inspectors are inadmissible at trial because his Miranda rights were violated. We affirm. PROCEDURAL HISTORY Before the c...
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12 F.3d 1539 73 A.F.T.R.2d 94-1721 ALBERTSON'S, INC., Petitioner-Appellant-Cross-Appellee,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee-Cross-Appellant. Nos. 91-70380, 91-70381. United States Court of Appeals,Ninth Circuit. April 11, 1994. ORDER 1 Before: CANBY and REINHARDT, Circuit Judges, and TASHIMA, District Judge.* 2 T...
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21 F.3d 354 FANTASY, INC., Plaintiff-Counterdefendant-Appellee,v.John C. FOGERTY, Defendant-Counterclaimant-Appellant.FANTASY, INC., Plaintiff-Appellee,v.John C. FOGERTY, Defendant,andWarner Bros. Records, Inc.; WEA International, Inc.;Warner Communications, Inc.; WEA Manufacturing,Inc.; and WEA Corporation, Defendants-Appellants. Nos. 88-15815, 89-15118, 88-15816 and 89-15120. Unit...
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22 F.3d 897 Charles K. ELDER; Beverly S. Elder, husband and wife,Plaintiffs-Appellants,v.R.D. HOLLOWAY; Other Unknown Employees and/or Agents,individually and in their official capacity aspolice officers for the Ada CountySheriff's Office, et al.,Defendants-Appellees. No. 91-35146. United States Court of Appeals,Ninth Circuit. April 11, 1994. On Remand from the United ...
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Opinion On the People’s appeal, we find the search of defendant Margarito Espinoza Guajardo was incident to a lawful arrest and *1741therefore reverse the order dismissing the information charging him with one count of possessing cocaine base for sale. Facts Los Angeles County Sheriff’s Deputy Steve Kim and his partner stopped in front of a house while they were on patrol in an area Kim knew to ha...
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*1810 Opinion Francine Y. Pender and Gisele Pender (the Penders) appeal a summary judgment on their first amended complaint for malicious prosecution against Irene Radin. The Penders were among three defendants in Radin’s lawsuit for breach of contract, fraud and misrepresentation that was settled when the third defendant paid Radin $25,000 and all parties agreed to waive any cla...
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21 F.3d 940 62 USLW 2687, 28 Fed.R.Serv.3d 1510 Angel MARTEL, Plaintiff-Appellant,v.COUNTY OF LOS ANGELES, Sherman Block, Sheriff of Los AngelesCounty, Elias Cuevas, Harry DeLong, Richard Mariadiaga, MarkShaugnessy, Herb Howland, Jeffrey Lammers, Margarito Robles,and Frank Yanes, Defendants-Appellees. No. 91-56268. United States Court of Appeals,Ninth Circuit. Argued and Submit...
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21 F.3d 355 62 USLW 2687, Bankr. L. Rep. P 75,827 In re Vincent George ANDERSON, Jr. and Charolette KayAnderson, Debtors.Vincent George ANDERSON, Jr., and Charolette Kay Anderson, Appellants,v.Herb SATTERLEE, Jr., Trustee, Appellee. No. 92-35120. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 16, 1993.Decided April 12, 1994. Peter H. Arkison...
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Vince Albert Napier appeals his 88-month sentence following entry of a guilty plea to armed bank robbery in violation of 18 U.S.C. § 2113(a), (d). Napier contends that the district court erred when it calculated his offense level by interpreting “loss” under U.S.S.G. § 2B3.1(b)(6) as the amount of money taken during the robbery. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review ...
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7 Cal.4th 572 (1994) 870 P.2d 1072 29 Cal. Rptr.2d 64 In re STANLEY WILLIAMS on Habeas Corpus. Docket No. S011868. Supreme Court of California. April 11, 1994. *578 COUNSEL McCambridge & Deixler, McCambridge, Deixler, Marmaro & Goldberg, Bert H. Deixler, Manatt Phelps, Rothenberg & Tunney, Leslie A. Swain, Brodey & Price and Howard R. Price for Petitioner. John K. Van De Kamp and ...
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23 Cal.App.4th 1839 (1994) 29 Cal. Rptr.2d 120 CSE INSURANCE GROUP et al., Plaintiffs and Appellants, v. NORTHBROOK PROPERTY AND CASUALTY COMPANY, Defendant and Respondent. Docket No. B063151. Court of Appeals of California, Second District, Division Four. April 11, 1994. *1841 COUNSEL Ramsey, Prestholt & Holmberg and Devera L. Petak for Plaintiffs and Appellants. Clausen & Campbell, Lavi...
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Opinion These are cross-appeals from the judgment in an action against an insurer to recover on a prior automobile liability judgment, under Insurance Code section 11580, subdivision (b)(2), and for damages in tort. 1 The defendant insurers appeal from the judgment on the policy solely on grounds it awarded excessive interest. Plaintiff appeals from the judgment *1851 ...
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Opinion David Michael Murray appeals from the judgment entered following his resentencing resulting from a remand after his earlier appeal. Murray was sentenced for several theft-related felonies and misdemeanors. Murray received an aggregate sentence exceeding that which could have been imposed under the double-the-base-term (DBT) limitation (Pen. Code, § 1170.1, subd. (g)) 1 had all the cha...
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*15 Opinion Plaintiff appeals from an order denying his petition to compel arbitration of an underinsured motorist insurance claim. The trial court concluded the claim is barred by the statute of limitations set forth in Insurance Code section 11580.2, subdivision (i). (Further statutory references to sections of an undesignated code are to the Insurance Code.) Plaintiff contends...
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Opinion Lisa M. Wagy (plaintiff), individually and as guardian ad litem, sued James Franklin Brown and Ethel Brown (defendants) for personal injuries to herself and her minor children arising from an automobile accident. In their answer defendants denied negligence and asserted plaintiffs contributory negligence. In response to plaintiffs request for admissions (Code Civ. Proc., § 2033), defe...
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*25 Opinion A jury found Michael Gomez guilty of robbery with personal use of a firearm (Pen. Code, 1 §§ 211, 12022.5, subd. (a)) and being a felon in possession of a firearm (§ 12021, subd. (a)). In a bifurcated proceeding the trial court found true allegations that Gomez was twice previously convicted of serious felonies (§§ 667, subd. (a)/l 192.7, subd. (c)(18) and (c)(27); 667, subd. (a...
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*1665 Opinion Plaintiff, Robert Owens (Owens), was injured in 1988 while working as a drywall installer for Elmer Elia Drywall (Elia), an independent subcontractor on a construction project for which defendant, Giannetta-Heinrich Construction Company (Giannetta), served as the general contractor. Owens filed a claim for workers’ compensation benefits and eventually received a tot...
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21 F.3d 950 73 A.F.T.R.2d 94-1751, 94-1 USTC P 50,198 R.T. CUBBAGE; Y.E. Cubbage, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 92-55773. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 11, 1994.Decided April 13, 1994. Richard T. Cubbage, pro se. Kevin Brown (argued), and Gary R. Allen, David I. Pincus and ...
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Opinion by Judge BRIGHT. Burke Incorporated (Burke), a wheelchair manufacturer, sued its competitor Everest and Jennings (E & J) alleging patent infringement. E & J requested its insurer, American Motorists Insurance Company (AMICO), to defend E & J in the Burke suit, and indemnify E & J in the event Burke won a damage award. After AMICO declined to defend or indemnify E & J, E & ...
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Opinion by Judge O’SCANNLAIN. In 1983, Richard Mohawk was convicted of armed bank robbery and sentenced to a term of twenty years in prison. He filed a timely notice of appeal from his conviction. Today, after more than ten years, we decide that appeal in his favor. In the end, we are called upon to determine whether, because of this extraordinary delay, it would violate due process to permit- ...
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21 F.3d 952 28 Fed.R.Serv.3d 765 UNITED STATES of America, for the Use and Benefit ofFAMILIAN NORTHWEST, INC., d/b/a Alaska Pipe &Supply, and Familian Northwest, Inc.,d/b/a Alaska Pipe & Supply,Plaintiff-Appellant,v.RG & B CONTRACTORS, INC. and Fireman's Fund InsuranceCompany, Defendants-Appellees. No. 92-36742. United States Court of Appeals,Ninth Circuit. Argued a...
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ORDER FOR WITHDRAWAL OF DECISION AND DISMISSAL . OF APPEAL On November 10, 1993, the Panel filed its decision affirming the trial court. The published opinion is reported as In re Specialty Plywood, Inc., 160 B.R. 627 (9th Cir. BAP 1993). A notice of appeal to the Ninth Circuit Court of Appeals was filed on November 19, 1993. Subsequently, the parties reached a settlement. The panel has reviewed t...
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Opinion Sharon J. Hoch (decedent) was killed when she was ejected from her 1987 Ford Bronco II, which was equipped with seat belts made by Allied-Signal, IncVBendix Safety Restraints Division (Allied-Signal), during a single-vehicle accident. Her parents, Norma and Carl J. Hoch, *54 sued Ford Motor Company (Ford), Allied-Signal and others for wrongful death, alleging negligen...
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Opinion Ponderosa Homes, Inc. (Ponderosa), appeals from a judgment in favor of respondents, the City of San Ramon (the City) and the San Ramon City Council (the City Council), entered upon the granting of respondents’ motion for judgment on the pleadings. The issues raised on the motion and on this appeal are the date upon which the applicable statute of limitations commenced running, and...
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*81 Opinion Deborah Terzian, Janice Brown, Cheryl Lopez, Michael Brown and Kenneth Brown appeal from a judgment in favor of respondent County of Ventura (County). They contend that the trial court abused its discretion in dismissing defendant California Forensic Medical Group, Inc. (Group) pursuant to Code of Civil Procedure section 583.420, subdivision (a)(1), and incorrectly de...
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21 F.3d 1462 Edward SLOMAN, Plaintiff-Appellee,v.Philip TADLOCK; David Allen; Roger Douglas; Pat Sardella,aka Mr. Whitaker; Matthew Obertone; Neil Rein;Simi Valley Police Department, Defendants,andCity of Simi Valley; Herman Hale, Defendants-Appellants. Nos. 92-55597, 92-55692 and 92-55851. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 4, 1993.Decide...
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ORDER Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this ease be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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Opinion Plaintiff Gene A. Tabachnick appeals the order dismissing his suit against defendant Ticor Title Insurance Company following Ticor’s successful demurrer based on the statute of limitations. *72 Facts 1 On July 18, 1986, Tabachnick purchased a condominium unit in New Jersey (the Property) in which a tenant then resided. According to Tabachnick, the seller...
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22 F.3d 199 In re E. Jerome TAMEN; Nelly Danielle Tamen, Debtors.E. Jerome TAMEN; Nelly Danielle Tamen, Plaintiffs-Appellees,v.ALHAMBRA WORLD INVESTMENT, INC.; Daniel Chu; DeltaPartnership Pacific, Ltd., Defendants-Appellants. No. 92-56171. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1994.Decided April 15, 1994. Arthur Leeds, McKenna &a...
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*128 Opinion In this matter we are called upon to decide a simple issue: when an injured employee sues a third party defendant (defendant), not his employer, in tort, and the defendant wishes to raise the employer’s concurrent negligence as the basis for an offset against any judgment against it, may the defendant file a cross-complaint against the employer alleging entitlement t...
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Opinion by Judge BEEZER. Raymond Jenkins sued defendant Union Pacific Railroad Company under the Federal Employer’s Liability Act, 45 U.S.C. § 51 et seq. (FELA) for injuries he sustained during his employment. The jury determined Jenkins was 65% responsible for his own injuries. The damage award of $800,000 was reduced by 65% to $280,000. Jenkins appeals, arguing that the distr...
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C. A. D. C. Cir. Certiorari granted....
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21 F.3d 965 Daniel LESOEUR, et al., Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 92-16948. United States Court of Appeals,Ninth Circuit. Submitted March 15, 1994*.Decided April 18, 1994. Alan M. Kyman and John Friedeman, Phoenix, AZ, for plaintiffs-appellants. Paul F. Figley, Heidi E. Weckwert, U.S. Dept. of Justice, Washington, DC, for...
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David Paul Colussi appeals his 210-month sentence imposed following his guilty plea to bank robbery in violation of 18 U.S.C. § 2113(a). Colussi contends the district court erred in denying Colussi’s request for a one level reduction pursuant to U.S.S.G. § 3El.l(b) because the court mistakenly concluded that the matter was discretionary, failed to make any findings of fact, and mistakenly concl...
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Julio Cesar Vasquez-Lopez appeals his conviction for cultivating marijuana and using a firearm during and in relation to a drug trafficking offense. 21 U.S.C. § 841(a)(1); 18 U.S.C. § 924(e)(1). He argues that the government’s peremptory challenge of the only Black prospective juror violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). We affirm. BACKGROUND During ...
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Lia Yang moved for attorneys’ fees under the Equal Access to Justice Act (EAJA). The district court denied her motion, finding that the position of the Secretary of Health and Human Services (Secretary) was substantially justified. Yang appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand. I. Yang was born in Laos, apparently on September 24,1919. She is a...
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22 F.3d 898 146 L.R.R.M. (BNA) 2189 FEDERAL LABOR RELATIONS AUTHORITY, Petitioner,v.U.S. DEPARTMENT OF the NAVY, NAVY RESALE & SERVICES SUPPORTOFFICE, FIELD SUPPORT OFFICE, AUBURN, WASHINGTON,Respondent.U.S. DEPARTMENT OF the NAVY, NAVY RESALE & SERVICES SUPPORTOFFICE, FIELD SUPPORT OFFICE, AUBURN, WASHINGTON, Petitioner,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent.FEDERAL LABOR...
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22 F.3d 899 28 Fed.R.Serv.3d 1273 Wayne H.T. KANO; Patricia Kano, Trustee and Phillip Kau,Trustee, Plaintiffs-Appellants,v.NATIONAL CONSUMER COOPERATIVE BANK, et al.; Frank L.Torres, Defendants-Appellees,andJack L. Ayers, Jr. and Elsie M. Ayers,Third-party-plaintiffs-Appellees,George R. Madden, Jr., Third-party-defendant-Appellee. No. 92-16754. United States Court of Appeals,Nint...
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*90 Opinion Appellants seek reversal of an order dismissing their complaint based upon violation of the five-year statute within which a matter must be brought to trial. (Code Civ. Proc., § 583.310.) 1 They also contend that the trial court abused its discretion in failing to grant two ex parte applications to reset trial prior to the running of the five-year statute. ...
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Opinion Petitioner, defendant in a criminal prosecution for murder of Sandra Zarate, challenges an order of the trial court barring him from litigating the issues of identity and intent on the ground that a prior final judgment of conviction for attempted murder of Zarate1 collaterally estops him from doing so, leaving for the jury only the issue of whether petitioner’s shooting of Zarate caused h...
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*119 Opinion NARES, J. John J. Riggs, O.D. (Riggs) and the Chicano Community Health Center doing business as Logan Heights Family Health Center (Center), appeal from an order granting a new trial to Patrick Romero (Romero) after a trial in which the jury found Center’s employee Riggs had been negligent as to Romero, but also found such negligence had not caused Romero’s eyesi...
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511 U.S. 127 (1994) J. E. B. v. ALABAMA ex rel. T. B. No. 92-1239. United States Supreme Court. Argued November 2, 1993. Decided April 19, 1994. CERTIORARI TO THE COURT OF CIVIL APPEALS OF ALABAMA Blackmun, J., delivered the opinion of the Court, in which Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. O'Connor, J., filed a concurring opinion, post, p. 146. Kennedy, J., filed an opinion con...
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delivered the opinion of the Court. As we have interpreted it, § 10(b) of the Securities Exchange Act of 1934 imposes private civil liability on those who commit a manipulative or deceptive act in connection with the purchase or sale of securities. In this case, we *167must answer a question reserved in two earlier decisions: whether private civil liability under § 10(b) extends as well to those w...
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Opinion by Judge HUG. I. BACKGROUND Mirahmad Feroz (“Feroz”) is a native and citizen of Afghanistan. He travelled to the United States in 1987 on a business visa, and was at that time arrested at the airport in New York City by United States Customs Service officials, upon their discovery of heroin in his briefcase. Feroz was convicted on *226 charges of importation of h...
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21 F.3d 1475 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Robert P. AGUILAR, Defendant-Appellant-Cross-Appellee. Nos. 90-10597, 91-10024. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 18, 1993.Decided April 19, 1994. Robert D. Luskin, Beth M. Bollinger and Joseph G. Davis, Comey Boyd & Luskin, Washington, DC, Paul B. Meltze...
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22 F.3d 221 Daniel WEBSTER, Individually and as the PersonalRepresentative of the Estate of Laurie Webster,deceased, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 92-36847. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 10, 1994.Decided April 19, 1994. Edward K. Duckworth, Ronan, MT, for plaintiff-appellant. Chris...
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*182 Opinion Appellants are customers of respondent East Bay Municipal Utility District (the District) who seek to invalidate the water rate structure design enactéd by the District in April 1991 as part of a comprehensive drought management program. Appellants petitioned for writ of mandate and sought declaratory and injunctive relief. The petition alleged: (1) the inclining blo...
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Opinion HUFFMAN, Acting P. J. Petitioners John S. Edmunds, attorney at law, a Hawaii law corporation; his Hawaii law partnership, Edmunds, Verga, Van Etten & O’Brien; and Edmunds as an individual (collectively, Edmunds) bring this petition for writ of mandate to require the superior court to vacate its order denying Edmunds’s motion to quash service of summons and complaint, and enter...
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delivered the opinion of the Court. We granted certiorari, 509 U. S. 953 (1993), to consider the question whether, in an action against several alleged joint *223tortfeasors under general maritime law, the plaintiff’s settlement with one defendant bars a claim for contribution brought by nonsettling defendants against the settling defendant. Because the opinion that we announce today in McDermott,...
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Opinion by Judge POOLE. Petitioner William Leigh Dougan seeks review of a forfeiture order issued by the Federal Communications Commission (“FCC”). The FCC found that he had violated the Communications Act of 1934, 47 U.S.C. § 301 and 47 C.F.R. § 15.29 by operating a radio station without a license and by refusing to permit FCC engineers to inspect the station. Dougan challenges the jurisdictio...
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*208 Opinion On a motion to dismiss this appeal, we point out an inconsistency between rule 2(b) and rule 391 of the California Rules of Court which creates uncertainty as to the date of entry of an appealable order, and we urge the Judicial Council to address the problem. This wrongful death action was submitted to judicial arbitration, which resulted in denial of plaintiff’s claim. Plaint...
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*240 Opinion EPSTEIN, Acting P. J. Saul Daniel Valdez appeals from judgment of conviction of residential burglary. (Pen. Code, § 459; all further statutory references are to the Penal Code unless otherwise indicated.) In the published portion of the opinion, we reject his argument that the trial court erred in imposing a one-year enhancement for a prior felony for which he se...
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Opinion Kenneth W. Thompson, a respondent City of Los Angeles Department of Transportation (DOT) employee, applied for a job with the city’s general services department (GSD). Despite Thompson’s first place eligibility list ranking, GSD did not hire him. Pursuant to the governing collective bargaining agreement, or memorandum of understanding (MOU), Thompson filed a grievance, claiming GS...
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22 F.3d 228 91 Ed. Law Rep. 32, 5 A.D.D. 81 Christopher and Lynn DREHER, on their own behalf and asparents of Kristy Dreher, and Kristy Dreher, aminor child, Plaintiffs-Appellants,v.AMPHITHEATER UNIFIED SCHOOL DISTRICT, and C. Diane Bishop,Arizona State Department of Education, in herofficial capacity, Defendants-Appellees.Christopher and Lynn DREHER, on their own behalf and asparents of K...
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Opinion by Judge FERNANDEZ; Partial concurrence and partial dissent by Judge O’SCANNLAIN. Oscar Padilla-Agustin, a native and citizen of Guatemala, petitions for review of the decision of the Board of Immigration Appeals which summarily dismissed his appeal of the Immigration Judge’s ruling denying him asylum and withholding of deportation. He also petitions for review of the BIA’s denial of his ...
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20 F.3d 1050 Charles Rodman CAMPBELL, Petitioner-Appellant,v.Tana WOOD, Superintendent, Washington State Penitentiary,Walla Walla, Washington; Christine O. Gregoire,Attorney General, State of Washington,Respondents-Appellees. No. 89-35210. United States Court of Appeals,Ninth Circuit. April 15, 1994. Before: WALLACE, Chief Judge, BROWNING, TANG, POOLE, D.W. NELSON, REI...
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*273 Opinion This case arises out of the death of Candice J. Stevenson’s father in the 1989 Loma Prieta earthquake in San Francisco. Stevenson sued the San Francisco Housing Authority (SFHA) and the owners of the building in which her father lived at the time of the injury which led to his death, alleging various causes of action. Stevenson appeals from the trial court’s dismissa...
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Opinion ABS Institute, Colby Plastics, and Polaris Pipe Company, Inc., filed a complaint for declaratory and injunctive relief challenging a City of Lancaster ordinance adopted to prohibit the use of ABS cellular pipe. 1 Judgment was entered in favor of the City and the Institute appeals. We affirm. Background A. Until the 1970’s, every city and county in Califor...
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Opinion Facts and Proceedings Below This is an appeal after remand following a prior decision of this court whereby we instructed the trial court to resentence the defendant either to 25 years to life or to life without possibility of parole and to stay the other sentence. On remand, the trial court sentenced defendant to life without possibility of parole and stayed the 25 years to life sent...
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Opinion by Judge FERNANDEZ. Appeal from the United States District Court for the Central District of California. Michael Bernard, a seaman, appeals the district court’s grant of summary judgment in favor of his employer, Maersk Lines, Ltd., in his admiralty suit, seeking damages under the Jones Act, 46 U.S.CApp. § 688, for personal injury sustained in an accident aboard Maersk’s vess...
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Opinion Appellant Budget Rent-A-Car Corporation (Budget) appeals from a judgment awarding damages of $291,000 in favor of Charlotte Bly-Magee (Bly-Magee). The jury found that Budget was negligent in failing to register a vehicle rented by Bly-Magee and that this negligence resulted in her arrest and incarceration. The trial court limited Budget’s voir dire to the issue of agency and refus...
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Opinion Appellant, Cyrus Mayers (Mayers), appeals from a denial of a motion to vacate judgment and quash writ. Appellants, Cyrus Mayers and Albert Arouh (Arouh), both appeal from an award of sanctions granted after the trial court denied the motion to vacate. We find that the trial court lacked jurisdiction over Mayers and that counsel’s appearance on his behalf in the suit was unauthorized. We...
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Opinion Corporations Code section 317, subdivision (e)(4), permits a court to authorize a corporation to indemnify its agent against a judgment arising from the agent’s reasonable and good faith acts on behalf of the corporation. Such an order may be made in “[t]he court in which the *332 proceeding [against the agent] is or was pending . . . .” (Corp. Code, § 317, subd. (e)(...
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Opinion I Procedural and Factual Background Plaintiff and appellant, Michael Parada (Parada), appeals from the dismissal of his second amended complaint after the trial court sustained defendant’s and respondent’s, City of Colton and Community Development Department of the City of Colton (Colton), demurrer to that complaint without leave to amend. Parada filed an initial co...
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*352 Opinion The People petition for a writ of mandate after the court denied Johnaton Sampson George’s (George) motion to represent himself in this capital case. The People contend the court based its denial on the impermissible grounds George is a security risk and seeks self-representation only to acquire privileges in jail. Under Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 5...
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Opinion by Judge D.W. NELSON Byron Paredes-Urrestarazu (“Petitioner”) petitions this court for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) that found him deportable under section 241(a)(4) of the Immigration and Nationality Act (“INA” or “Act”), 8 U.S.C. 1251(a)(2)(A)(ii), and denied him discretionary relief from deportation under section 212(c), 8 U.S.C. §...
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22 F.3d 928 COLUMBIA GRAIN, INC., an Oregon corporation, Plaintiff,v.OREGON INSURANCE GUARANTY ASSOCIATION, an Oregonassociation, Fourth-party defendant-Appellant,andLOUISIANA INSURANCE GUARANTY ASSOCIATION, Intervenor-Appellee,v.WISMER AND BECKER CONTRACTING ENGINEERS, a foreigncorporation, Third-party-defendant,andSHARP ELECTRIC INC., a foreign corporation,Third-party-defendant-fourth-party-...
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Opinion by Judge EUGENE A. WRIGHT. A jury awarded Kevin Marchand $4.2 million in a medical malpractice action. He then petitioned to recover attorneys’ fees and costs under Fed.R.Civ.P. 37(c), because three defendants failed to admit key requests for admission that he proved at trial. The district court ordered Dr. Neil Farris to pay Marehand’s reasonable expenses. Farris appeals this awa...
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OPINION I Connecticut General Life Insurance Company (“Connecticut General”) appeals from the orders confirming the First Amended Plan of Reorganization submitted by the Paragon Group (the “Paragon Plan”) and denying confirmation of the competing Plan of Reorganization filed by C.R.H.C. of Tucson, Inc. (the “CRHC Plan”). II FACTS Hotel Associates of Tucson (“the Debtor...
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*385 Opinion In Nat. Bellas Hess v. Dept, of Revenue (1967) 386 U.S. 753 [18 L.Ed.2d 505, 87 S.Ct. 1389] (Bellas Hess), and again in Quill Corp. v. North Dakota By and Through Heitkamp (1992) 504 U.S._[119 L.Ed.2d 91, 112 S.Ct. 1904] (Quill), the United States Supreme Court determined that the commerce clause of the Un...
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Opinion Brown & Bryant, Inc. (Brown & Bryant), appeals from a judgment dismissing its action against Hartford Accident & Indemnity Company, Fireman’s Fund Insurance Companies, and United States Fidelity & Guaranty Company (collectively Insurers) for failure to bring the action to trial within five years. (Code Civ. Proc., §§ 583.310, 583.360.) 1 It contends the five-year period...
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Opinion Agreeing with the analysis of the Third Appellate District in People v. Reed (1982) 135 Cal.App.3d 149 [185 Cal.Rptr. 169], we will hold that an enhancement pursuant to Penal Code 1 section 12022.3 for using or being armed with a firearm or deadly weapon during the commission of certain sex crimes can be imposed only when the defendant “personally” uses or is armed with the weapon...
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Sup. Ct.,Fla. Application for stay of execution *1049of sentence of death, presented to Justice Kennedy, and by him referred to the Court, denied. Certiorari dismissed for want of jurisdiction....
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21 F.3d 1491 Michael C. COLLINS, Leslie Collins, Mark Vovos as guardianad litem for Barbara Collins, Plaintiffs-Appellants,v.SCHWEITZER, INC., World Wide Ski Corp., dba NASTAR, RibletTramway Company, Defendants-Appellees. No. 91-36183. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 11, 1993.Decided April 26, 1994. Hollis H. Barnett, Campbell, Dil...
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Opinion by Judge SNEED Appellant Fumi Hata (Hata) challenges the district court’s dismissal of her Military Claims Act (MCA) suit for lack of subject matter jurisdiction. We AFFIRM. I. FACTS AND PROCEEDINGS BELOW Appellant’s late husband, Sgt. Arnold S. Hata, was stationed at Kadena Air Base in Okinawa, Japan. On April 22, 1990, Sgt. Hata went to the emergency room at C...
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22 F.3d 947w 28 Fed.R.Serv.3d 1151 Mattie HOLLAND; Dan Holland, Plaintiffs-Appellees,v.Daren ROESER; City of Portland, Defendants-Appellants. No. 92-35536. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 4, 1994.Decided April 26, 1994. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 22 F.3D.949. ...
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Opinion by Judge CANBY. Marilyn Hollister appeals the district court’s grant of summary judgment in favor of defendants John Forsythe and Rosebud County on her claim under 42 U.S.C. § 1983 alleging that she was dismissed from her secretarial job in violation of her constitutional right to due process. Because under Montana law she had no property interest in the job, and hence there was no cons...
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22 F.3d 954 25 Bankr.Ct.Dec. 916 In re CITY EQUITIES ANAHEIM, LTD., a California limitedpartnership, a/k/a City Equities Anaheim, Debtor.CITY EQUITIES ANAHEIM, LTD., a California limitedpartnership, a/k/a City Equities Anaheim, Appellant,v.LINCOLN PLAZA DEVELOPMENT COMPANY, Appellee. No. 92-56266. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 31, 1994....
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Joann Ravell, who tripped and fell at an air show held at Norton Air Force Base in San Bernardino, California, brought this action for negligence against the United States. The United States asserted that under California’s recreational use statute it owed her no duty and was, therefore, immune. Cal. Civ.Code § 846. The district court agreed. It granted summary judgment against Ravell and she app...
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Opinion by Judge CYNTHIA HOLCOMB HALL. Appellant Hector Gutierrez-Zamarano (“Appellant”) was charged with conspiracy to possess cocaine with the intent to distribute and attempted possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. A jury acquitted Appellant on the conspiracy count, but convicted him on the attempt count. The district court grante...
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22 F.3d 903 Patrick J. MURPHY, et al., Plaintiffs-Appellees,v.FEDERAL DEPOSIT INSURANCE CORPORATION, et al.,Defendants-Appellants.Patrick J. MURPHY, an individual; Murphy's Markets, Inc., aCalifornia corporation; Ramsey Marketing and Management Co.("Ramco"); aka: Ramsay Marketing and Management Co., aCalifornia corporation, Plaintiffs-Appellants,v.FEDERAL DEPOSIT INSURANCE CORPORATION, et ...
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Opinion We granted review to decide whether the so-called “good faith” exception to the exclusionary rule announced in United States v. Leon *617 (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405] (hereafter Leon) applies to a warrantless and nonconsensual entry into a residence by police officers and the seizure of evidence that forms the basis for the su...
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Opinion This is a wrongful death action stemming from a police shooting during the investigation of a domestic dispute. Plaintiffs appeal from a judgment for defendants following return of the jury’s special verdict finding no negligence. On appeal, plaintiffs contend the court erred in restricting discovery of the personnel files of the officer who fired the fatal shot and a former officer ret...
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Opinion Victor B. was declared a ward of the court (Welf. & Inst. Code, § 602) after being found in possession of a dirk or dagger in violation of Penal Code section 12020, subdivision (a).1 He contends the trial court erred in admitting his statement to police that he carried the instrument for “protection” because he had not been advised of his Miranda2 rights. He also contends that as a matter...
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Opinion Petitioner Regan Roofing Company, Inc. (Regan Roofing), joined by New Continental Tile and Marble Company, Inc. (New *429 Continental), brings this petition for writ of mandate to challenge the order of the trial court summarily adjudicating certain issues in this cross-action for contractual indemnity and related theories brought by Pacific Scene et al. (collectively...
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*441 Opinion I. Introduction In this case we hold that a nonsettling personal injury defendant waives any right to an offset against a judgment for a calculated economic damages portion of a settling defendant’s pretrial lump-sum payment by failing to propose a special verdict which would permit such calculation by differentiating between economic and noneconomic portions of...
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Opinion This appeal presents a single question regarding the interpretation of the Song-Beverly Consumer Warranty Act (the Act), Civil Code 1 section 1790 et seq. Specifically, we are asked to determine whether, in an action concerning a new motor vehicle, the buyer can recover civil penalties from the manufacturer for a willful violation of the Act if the manufacturer maintains a qualified t...
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Opinion Appellant Subir Chaklader appeals (Pen. Code, § 1237, subd. (b)) from an order denying appellant’s petition for a writ of error coram nobis to vacate a judgment resulting from his guilty plea to assault with a deadly weapon with infliction of great bodily injury. Appellant contends that his guilty plea was induced by a promise that his sentence would run concurrently with his sentence...
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Opinion When warranted by compelling governmental interests, a trial court may seal the court’s records of “personal juror *464 identifying information." (Code Civ. Proc., § 237, subd. (b).) 1 But “[n]otwithstanding Section 237, a defendant or defendant’s counsel may, following final adjudication of a criminal proceeding, request that the court provide personal juror information within the ...
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Opinion I. Introduction Defendant, Stevedoring Services of America, purports to appeal from the denial of a motion to dismiss in the nature of a request for judgment on the pleadings. We agree with plaintiffs that the order under review is not subject to review on direct appeal prior to trial. Accordingly, the appeal is dismissed. II. Procedural Background Plaintiffs, survi...
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Opinion Appellant Soman Properties, Inc., sued respondent Rikuo Corporation alleging that respondent breached its duty to maintain the common areas of the parties’ adjacent commercial properties comprising a shopping center. The source of this duty was alleged to be a written document entitled “Declaration of Establishment of Protective Covenants, Conditions and Restrictions and Grants of...
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Opinion An amended information charged defendant with petit theft with a prior petit theft (Pen. Code, § 666) and alleged defendant had served a prior prison term for vehicular manslaughter (Pen. Code, § 192, subd. (c)(3)) within the meaning of Penal Code section 667.5, subdivision (b). A jury convicted defendant as charged and defendant admitted the prior prison term allegation. Defendant was ...
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*533 Opinion The Bank of America N.T. & S.A. (Bank) appeals from the judgment entered on a jury verdict awarding $248,004.60 compensatory and $300,000 punitive damages against the Bank and in favor of S. C. Anderson, Inc. (Anderson). The Bank was the lender for the construction and development of two commercial building projects in Bakersfield. The borrowers and owners (developer...
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23 F.3d 239 73 A.F.T.R.2d 94-1902 BURLINGTON NORTHERN RAILROAD COMPANY, Plaintiff-Appellant,v.DEPARTMENT OF REVENUE OF the STATE OF WASHINGTON; WilliamR. Wilkerson, in his capacity as Director of theDepartment of Revenue of the State ofWashington, Defendants-Appellees. No. 92-36774. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1994.Decided April ...
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23 F.3d 241 62 USLW 2754, Bankr. L. Rep. P 75,865 In re CHUGACH FOREST PRODUCTS, INC.; Chugach TimberCorporation, Debtors.CHUGACH TIMBER CORPORATION; Chugach Forest Products, Inc., Appellants,v.NORTHERN STEVEDORING & HANDLING CORPORATION, Appellee. No. 92-36976. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 10, 1994.Decided April 28, 1994. ...
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22 F.3d 1441 62 USLW 2675 Mario GONZALEZ-RIVERA, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 92-70492. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 10, 1993.Decided April 28, 1994. Raul M. Montes, Armando M. Montes and Gilbert M. Montes, Montes, Montes & Montes, San Diego, CA, for petitioner. David J. Kl...
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22 F.3d 1455 30 U.S.P.Q.2d 1633, 22 Media L. Rep. 1609 Wood NEWTON, Plaintiff-Appellant,v.Harry THOMASON; Linda Bloodworth-Thomason; Burt Reynolds;Mozark Productions, Inc.; Evening Shade; MTM,Inc.; CBS, Inc., Defendants-Appellees.Wood NEWTON, Plaintiff-Appellee,v.Harry THOMASON; Linda Bloodworth-Thomason; Burt Reynolds;Mozark Productions, Inc.; Evening Shade, a business entity;MTM,...
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Per Curiam. Gill A.C. Stephens filed a petition for writ of habeas corpus in the district court pursuant to 28 U.S.C. § 2254. The district court denied the petition. We affirm. I A detective from the Los Angeles Police Department approached Stephens while he was standing in line to board a Greyhound bus. After talking to Stephens for a few moments, the detective and his partner searched Ste...
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Opinion Petitioners Sea Horse Ranch, Inc. (the Ranch), and its president, Arbis “Al” Shipley, are charged by information with one count of involuntary manslaughter (Pen. Code, § 192, subd. (b)); the Ranch is also *450 charged with one count of willfully suffering a mischievous animal to roam at large with the result that it kills a human being (Pen. Code, § 399). 1 ...
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Opinion After entry of a judgment dissolving the marriage of Kathy Hyatt (plaintiff) and Jerry Hyatt (Hyatt) and disposing of the community property, plaintiff sought damages against defendants, beneficiaries of a trust deed executed during the marriage by Hyatt without plaintiffs knowledge or consent. The trust deed encumbered Hyatt’s interest in real property held in joint tenancy with ...
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Opinion In this case we must decide whether a witness who testifies at a deposition held in connection with a private, contractual arbitration proceeding is subject to being sued in a tort action on the basis of statements made in the course of such testimony, or instead, like any witness in a court proceeding, is immunized from tort liability by virtue of the “litigation privilege” embodied in ...
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Opinion Background Petitioner, The Housing Group (THG), Hugh B. Brewster Consulting Engineers, Inc., and Hugh B. Brewster (collectively Brewster) are among many defendants in a suit brought by the Homeowners Association of the Seaview Community and other named plaintiffs (collectively Homeowners). THG filed a cross-complaint 1 which sought indemnity from Brewster not only ...
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Opinion Defendant Valley of California, Inc., doing business as Coldwell Banker Residential Real Estate of Northern California (Coldwell Banker), appeals from a judgment of the San Mateo County Superior Court awarding plaintiffs husband and wife, Shaucat and Jeannie S. Salahutdin, damages of $175,000 plus costs against Coldwell Banker. The trial court found that while representing plainti...
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Opinion The principal issue in this appeal is whether a private, voluntary association of psychologists is prohibited under the litigation privilege of Civil Code section 47, subdivision (b), or the doctrine of “quasi-judicial immunity,” from censuring one of its members for presenting false statements as a court-appointed expert in a child custody proceeding. We conclude the association ...
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Opinion A jury convicted the defendant of a number of sexual offenses (which we need not detail) and kidnapping for the purpose of committing rape (Pen. Code, §§ 207, subd. (a); 208, subd. (d); undesignated section references are to this code). The jury also sustained numerous firearm enhancements. Sentenced to state prison, the defendant disputes not the acts of which he was convicted so much ...
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Opinion This appeal raises significant issues concerning the article of the Penal Code entitled “Disposition of Mentally Disordered Prisoners upon *895 Discharge” (Pen. Code, §§ 2960-2981) (hereafter the Mentally Disordered Prisoners Act, or the Act), and in particular Penal Code sections 2970 and 2972. 1 When defendant and appellant William R. Kirkland (defendan...
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delivered the opinion of the Court. We are called upon to decide whether, pursuant to § 3001(i) of the Solid Waste Disposal Act (Resource Conservation and Recovery Act of 1976 (RCRA)), as added, 98 Stat. 3252, 42 U. S. C. §6921(i), the ash generated by a resource recovery facility’s incineration of municipal solid waste is exempt from regulation as a hazardous waste under Subtitle C of RCRA. I Sin...
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with whom Justice Blackmun joins, concurring. When Alvarez-Sanchez was arrested by the Los Angeles Sheriff’s Department, 18 U. S. C. § 3501(c) was not triggered. As the Court explains, an arrest by state or local law enforcement authorities on state criminal charges is not an “arrest or other detention” within the meaning of § 3501(c), and there is no evidence in this case of any “improper collabo...
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C. A. 5th Cir. Application for stay of execution of sentence of death, presented to Justice Scalia, and by him referred to the Court, denied. Certiorari denied. Justice Stevens and Justice Ginsburg would grant the application for stay of execution....
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23 F.3d 254 62 USLW 2699, 30 U.S.P.Q.2d 1652 INTEX PLASTICS SALES COMPANY, Plaintiff-Appellee,v.UNITED NATIONAL INSURANCE COMPANY, Defendant-Appellant,andNew England Reinsurance Company; 1st State InsuranceCompany, Defendants.INTEX PLASTICS SALES COMPANY, Plaintiff-Appellee,v.UNITED NATIONAL INSURANCE COMPANY, Defendant,andNew England Reinsurance Company; 1st State InsuranceCompany, Defe...
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23 F.3d 257 62 USLW 2700, 152 P.U.R.4th 376 UNITED STATES of America; Michael P.W. Stone, The Secretaryof the Army, On Behalf of the Department ofDefense and Other Federal ExecutiveAgencies, Plaintiffs-Appellees,v.ALASKA PUBLIC UTILITIES COMMISSION; State of Alaska,Defendants-Appellants. No. 92-36614. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 6, ...
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Opinion by Judge REINHARDT. In this appeal we consider Daniel James Fowlie’s challenges to the lawfulness of his extradition, the propriety of certain proceedings before the grand jury, the rejection of his motion to suppress evidence, the exclusion of certain evidence he sought to introduce at trial, the denial of his motion for a continuance, and the sentence imposed by the district cou...
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Opinion by Judge KLEINFELD This case involves a question of first impression regarding the transfer of probation *858 jurisdiction. We conclude that no liberty interest was at stake in the transfer of appellant’s probation jurisdiction from the district where the original crime was committed to the district where the appellant resided and the probation violations were committed. Therefore, no...
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Opinion by Judge FERNANDEZ. Alejandro Pacheco-Osuna pled guilty to being a deported alien found in the United States. See 8 U.S.C. § 1326(a). At sentencing, the district court departed downward because, as it said, when Pacheco was arrested he may have been stopped without good cause. The United States appealed that departure. We vacate the sentence and remand. BACKGROUND Pacheco was depo...
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Opinion by Judge SNEED; Dissent by Judge RYMER Nicholas Sterner appeals his conviction and sentence for conspiracy to sell and for delivery of stolen treasury checks in violation of 18 U.S.C. §§ 371 and 510. Because the entrapment instructions given to the jury misstated the law as set forth in Jacobson v. United States, — U.S.-, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992), we reverse Sterner’s convic...
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Opinion by Judge PREGERSON Steven Wiener, d/b/a Fantasyland Adult Books, appeals the district court’s dismissal of his 42 U.S.C. § 1983 action challenging a San Diego County zoning ordinance (Ordinance No. 8015) that regulates adult bookstores, and the district court’s denial of his motion for a preliminary injunction. We have jurisdiction over the dismissal order under 28 U.S.C. § 1291, and ov...
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Opinion Plaintiffs Concerned Citizens of South Central Los Angeles and Equal Rights Congress of Los Angeles, unincorporated associations, and Gwendolyn Cannon appeal from an order denying their petition for writ of mandate. 1 In their petition, plaintiffs sought to compel defendants Los Angeles Unified School District (District) and Board of Education of the City of Los ...
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Opinion Plaintiff Gary Cooper appeals from a summary judgment in his employment termination action against respondents S.E. Rykoff & Co., Rykoff-Sexton, Inc., and Sam Wiley. We reverse. Plaintiff s job was to repair commercial dishwashing machinery. After he was fired, he claimed breach of an implied agreement not to fire him without cause; breach of the implied covenant of good fait...
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Opinion Andrea L. appeals from the order of the juvenile court freeing her child, Baby Boy L., for adoption. The child, who was bom on August 7, 1989, was adjudicated a dependent child of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) and (g) on September 11, 1989.1 On that same date, the child was removed from *600Andrea’s custody under section 36L 2 and reu...
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Opinion Paul B. Nicholson and Michael L. Goldsberry were convicted of robbery and first degree felony murder. They appeal, *587 contending their unequivocal and unconditional motions to represent themselves should have been granted. We agree and therefore reverse and remand for a new trial. Facts Valentin Montesdeoca’s partially buried body was found during the early evening hours of Sept...
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*625 Opinion I. Introduction This appeal arises from the unsuccessful attempt of plaintiffs in the trial court to preliminarily enjoin enforcement of defendant City of Agoura Hills’ (City) ordinance which regulates solicitation from persons traveling in vehicles on City streets (Ordinance). II. Contentions Appellants contend the Ordinance was adopted to p...
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*968 Opinion Pursuant to Welfare and Institutions Code section 707, 2 a minor 16 years of age or older may be determined unfit for treatment by the juvenile court and thereby relegated to disposition as an adult. In certain contexts prior cases have determined that once the juvenile court finds a minor unfit, it loses jurisdiction to process pending or future section 602 petitions. In this ...
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Opinion Koll-Irvine Center Property Owners Association and individual owners of units in the center (Koll-Irvine) appeal from the judgment against them following the order sustaining the demurrers of the County of Orange and Snafuel, Inc., without leave to amend. Koll-Irvine claims it has properly pleaded causes of action for both public and private nuisance arising out of the location an...
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Opinion by Senior District Judge REED Carlos Rodriguez-Sanchez was found guilty of possessing methamphetamine with the intent to distribute it under 21 U.S.C. § 841(a)(1). Mr. Rodriguez-Sanchez appeals from conviction and the sentence imposed. Mr. Rodriguez-Sanchez argues that his stop *1490 and detention lacked reasonable suspicion and evidence discovered as a result should have been suppres...
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Opinion In order to protect San Francisco Bay from further environmental degradation through filling and development, the Legislature created the San Francisco Bay Conservation and Development Commission (BCDC), and gave BCDC jurisdiction over all areas of the bay subject to “tidal action”—which for purposes relevant here the Legislature defined in Government Code 1 section 666...
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*976 Opinion Introduction Bank One Texas, N.A. 1 appeals from an order granting a motion to amend á judgment but denying the request that the amendment be entered nunc pro tunc as of the date of the entry of the original judgment. Statement of Facts Texas American Bank/Galleria secured a judgment in Texas against Sheldon L. Pollack (Pollack) and others o...
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Opinion Plaintiffs Stanley Brumer and Gloria Miriam Brumer appeal from a summary judgment in their wrongful death action against the City of Los Angeles. *986 This is a police pursuit case. Toraino Leon Young, a robber fleeing from police, caused a fatal crash with plaintiffs’ decedent, their son Martin Alan Brumer. (See People v. Young (1992) 11 Cal.App.4th 1299 [15 Cal.Rptr.2d 30].) P...
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Opinion Introduction Plaintiffs,Hi-Top Steel Corporation, doing business as Weiner Steel Corporation, and Hiuka America Corporation appeal from a judgment on the pleadings in favor of defendants Bernard Lehrer, Sam Adíen and Aadlen Bros. Auto Wrecking, Inc. Statement of Facts 1 Plaintiff Hiuka America Corporation (Hiuka) exports scrap steel from Southern California....
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24 Cal.App.4th 1012 (1994) 30 Cal. Rptr.2d 111 THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ANTHONY SANCHEZ, Defendant and Appellant. Docket No. B071169. Court of Appeals of California, Second District, Division Seven. April 29, 1994. *1014 COUNSEL Bruce Eric Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Ch...
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Opinion Introduction Metro Traffic Control, Inc. (Metro), and Shadow Traffic Network (Shadow) are competitors in the traffic reporting business. Each contracts with radio stations to gather and broadcast information about traffic conditions. In December 1991, Metro sued Shadow, alleging that Shadow was engaging in various business torts. 1 Each was represented by counsel...
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Opinion For a second time, appellant seeks a conditional use permit (CUP) for a nude dancing cabaret. The application is for the same location the cabaret formerly occupied in an unincorporated area of the county near the cities of Azusa and West Covina. In a published opinion filed in 1989, this court affirmed a denial of appellant’s prior CUP application for this property (Smith v. County of Los...
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*1046 Opinion FRANSON, J. * Pursuant to a plea bargain, defendant pleaded no contest to two counts of residential burglary on the condition two remaining charges would be dismissed and the prosecution would not oppose a commitment to the California Rehabilitation Center (CRC). Following denial of his motion to withdraw his plea, he was sentenced to an aggregate prison term exceeding six y...
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22 F.3d 1464 64 Fair Empl.Prac.Cas. (BNA) 1018,64 Empl. Prac. Dec. P 43,014, 62 USLW 2755 Carolyn ARNO, Plaintiff-Appellant,v.CLUB MED INC; Club Med Sales Inc; Club Med Boutique Inc;Club Mediterranee International Inc; Club Mediterranee S A;Club Med Management Services Inc, and Does Two throughFifty inclusive, Defendants-Appellees. No. 92-16026. United States Court of Appeals,Ni...
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23 F.3d 1497 UNITED STATES of America, Plaintiff-Appellee,v.Robert PITNER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.David M. HANSON, Defendant-Appellant. Nos. 90-10299, 90-10318. United States Court of Appeals,Ninth Circuit. May 4, 1994. J. Frank McCabe, Goorjian & McCabe, San Francisco, CA, for defendant-appellant Robert Pitner. Julia...
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Opinion This appeal is from a judgment that required Anwar Abdullah and Jamil Abdullah (Anwar, Jamil or appellants) to sell their stock in West Coast Laboratories, Inc., a family-owned corporation, back to the corporation pursuant to the provisions of Corporations Code section 2000. 1 Respondents are appellants’ brothers, Maurice Ovadia and Naim Abdullah (Maurice, Naim or respo...
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Opinion Steven W. Bianco, in propria persona, appeals from the denial of his second amended petition for writ of mandate in which he challenged (1) generally, the authority of the California Highway Patrol (CHP) to determine which motorcycle helmets are approved and unapproved under the state’s mandatory helmet law (Veh. Code, 1 §§ 27802 and 27803) and (2) specifically, a bulle...
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Opinion Defendant’s sole argument on appeal is that the abstract of judgment must be modified to correctly reflect presentence custody. Factual and Procedural Background Defendant pled guilty to one count of kidnapping his ex-wife (Pen. Code, § 207, subd. (a)), 1 during which he intentionally inflicted great bodily injury (§ 12022.7), one count of assaulting his ex-wife with a deadly weap...
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concurring: Although I am in complete agreement with the reasoning and the result in Judge Fernandez’s opinion for the court, I write separately to emphasize that while our opinion holds expressly that Vernonia School District’s drug testing policy is violative of Article I, Section 9 of the Oregon Constitution, it also necessarily holds that the policy violates the Fourth Amendment to the United ...
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Opinion by Judge HALL. Defendant Pan Ocean Shipping Company appeals the district court’s summary judgment for plaintiff G.F. Company in an action under the Carriage of Goods by Sea Act for damages to plywood that Pan Ocean transported from the Far East to the United States. We conclude the district court erred *1500 by invalidating the disclaimers on Pan Ocean’s bills of ladi...
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Opinion by Judge GOODWIN. The National Wildlife Federation and Great Bear Foundation (collectively referred to as “NWF”) appeal the denial of their motion for a preliminary injunction in their action against Burlington Northern Railroad, Inc. (“BN”) under the Endangered Species Act’s (“ESA”) citizen suit provision, 16 U.S.C. § 1540(g)(1). NWF claims that BN violated the ESA by modify...
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Opinion by Judge T.G. NELSON. I OVERVIEW Jesus Felix-Rodriguez (Felix) appeals his jury conviction for conspiracy to distribute cocaine (Count One) in violation of 21 U.S.C. § 846; distribution of cocaine base (Counts Two-Five), and possession of cocaine base with intent to distribute (Count Six), all in violation of 21 U.S.C. § 841. We must determine whether the replay of a tape-recorded c...
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Opinion by Senior District Judge Reed Vernon Robert Lindholm appeals from a conviction in a non-jury trial of three counts of bankruptcy fraud under 18 U.S.C. § 152. The trial court found that appellant chose to file bankruptcy petitions instead of performing on his contractual obligations, that the appellant lacked credibility, that the appellant filed false statements with the bankruptcy cour...
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OPINION These are consolidated appeals. The first order on appeal granted the debtor’s motion to dismiss the creditor’s adversary complaint, which asserted a claim of nondischargeability of his debt for fraud under § 523(a)(2)(A) *907 and objected to the debtor’s discharge under § 727(a). The second order on appeal awarded attorney’s fees to the debtor under § 523(d) as a...
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Opinion Defendant, Golden Eagle Insurance Company, purports to appeal from a money judgment. Plaintiffs, Emma Rapp, Gloria Dimino, Florence Dimino and Steve Snyder, have moved to dismiss the appeal as untimely. We disagree and deny the dismissal motion. On December 22, 1993, judgment was entered in favor of plaintiffs and against defendant. On December 23, 1993, plaintiffs’ counsel s...
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Opinion Direct victim restitution is mandatory in all cases in which the victim has suffered economic loss as a result of the defendant’s criminal conduct and the defendant is denied probation. (Gov. Code, 1 § 13967, subd. (c).) The defendant in this case, Juan Valdez, was convicted of robbery upon his plea of guilty and was denied probation. He was ordered to pay a restitution fíne, but dire...
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Opinion We hold that, under Labor Code 1 sections 139.5, 4850, and 4853, an injured municipal police officer is not entitled to receive a vocational rehabilitation maintenance allowance after the effective date of his or *1178 her disability retirement under the Public Employees’ Retirement System (PERS). Procedural History On August 20, 1991, Rocky D. Ri...
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Per Curiam. An elderly Arizona man was robbed and murdered in his home on July 9, 1991. The killer tied up the victim’s companion and fled in the victim’s car. PSR 5. Floyd Thornton was arrested in Oregon twelve days later with the murder weapon in his pocket and the stolen car nearby, where he had crashed it. PSR 4. Five months later, Thornton was indicted for being a felon in possession of ...
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The mandate in this case issued October 19, 1991. The Supreme Court denied' the petition for certiorari of appellants Sorbo-thane, Inc., Hamilton-Kent, BTR and Kenneth M. Leighton. See Sorbothane, Inc. v. McQuillan, — U.S. -, 113 S.Ct. 1358, 122 L.Ed.2d 738 (1993). Thus, the judgment is final as to these appellants. As to the appellants Spectrum Sports and Kenneth B. Leighton, Jr., the Suprem...
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Opinion A jury convicted appellant of nine counts of robbery (Pen. Code, 1 §211) and one count of discharging a firearm with gross negligence (§ 246.3), found true firearm allegations (§§ 12022.5, 12022, subd. (a)(1)), acquitted appellant of three counts of robbery, and could not reach a verdict on one robbery count (later dismissed). Appellant was sentenced to a 23-year, 8-mon...
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Opinion A plaintiff appeals from an order dismissing his action against two defendants. We affirm. *1432 Procedural Background In March of 1987, plaintiff Jim Dill filed a complaint seeking the recovery of damages for personal injuries for which the defendants were allegedly liable under theories of negligence and strict liability. Among the defendants named were Berqui...
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Opinion In a personal injury action, plaintiff and respondent Elizabeth Triplett (Triplett) recovered a jury verdict against defendant Thomas Simko (Simko). After the verdict was entered, the court ordered that *1418 Simko’s insurer, appellant Farmers Insurance Exchange (Farmers) be added as an additional defendant, and then sanctioned Farmers over $15,000 for refusing to set...
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Opinion After pleading guilty to second degree murder, defendant Greg Avila moved to withdraw his plea on the ground that he had been misadvised regarding the length of the parole term he would be required to serve. Defendant appeals from the trial court’s denial of that motion, arguing that the court’s misadvisement violated an integral term of the plea agreement. We disagree and affirm the ju...
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Opinion by Judge O’SCANNLAIN. We consider the power of the State of California to tax offtrack betting activities on Indian reservations. I Plaintiffs Cabazon Band of Mission Indians and Sycuan Band of Mission Indians (“the *1536 Bands”) conduct simulcast wagering (offtrack betting) on their reservations to raise tribal revenue. Such activities are regulated by the ...
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Opinion by Judge FERNANDEZ. Duskin Claude Becker appeals his conviction following a court trial for one count of conspiracy to manufacture, possess with intent to distribute, and distribute methamphetamine in violation of 21 U.S.C. § 846 and two counts of manufacture of a controlled substance (methamphetamine) under 21 U.S.C. § 841(a)(1). The sole issue we address in this opinion is whether t...
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Opinion by Judge KLEINFELD. Gemtel sued the Community Redevelopment Agency and the County of Los Angeles for injunctive, declaratory and damages relief for violating federal rights. The action was dismissed for lack of jurisdiction, as moot in some respects and unripe in others. We affirm, though not entirely on the same grounds. Facts Lillian Disney, widow of Walt Disney, donat...
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Opinion In Moffat v. Moffat (1980) 27 Cal.3d 645 [165 Cal.Rptr. 877, 612 P.2d 967], we held that a parent under a court order to pay support for a minor child must pay that support even if the parent with custody interferes with the paying parent’s right to visit with the child. We are now asked to decide whether a custodial parent who not merely interferes with visitation rights, but actively co...
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*1464 Opinion Introduction Defendants and appellants Bernard Roberts and Richard Talley appeal from judgments after a jury trial in which Roberts was convicted of multiple counts of robbery and attempted robbery and Talley was convicted of a single count of robbery. As to the robbery count on which both defendants were convicted, an allegation that property in excess of $25,000 was taken, w...
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Opinion by Judge WIGGINS; Concurrence by Senior Circuit Judge BRIGHT. Ricardo Hernandez-Vivas (“Hernandez”) petitions for review of an order from the Board of Immigration Appeals (BIA). Hernandez seeks to reopen his deportation proceedings so that he may apply for asylum and withholding of deportation. At a deportation hearing held in absentia, an immigration judge (IJ) found that Hernandez was d...
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Opinion by Judge FERNANDEZ. Khosrow Rashtabadi, a citizen of Iran, petitions for review of the Board of Immigration Appeals’ affirmance of an immigration judge’s decision which found him deportable under 8 U.S.C. § 1251(a)(1), denied his application for adjustment of status, 8 U.S.C. § 1255(a), found him ineligible for a waiver of inadmissibility, 8 U.S.C, § 1182(h), and denied his reques...
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In 1993, appellant Jesus Loya pled guilty to importation of marijuana and was sentenced to 15 months in custody and placed on three years of supervised release. Soon af *1530 ter his release from custody, Loya was again indicted for the importation of marijuana. A hearing to determine whether Loya’s supervised release should be revoked has been set, and Loya is presently in custody solely pendi...
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Opinion by Judge FERNANDEZ. At the request of Viken Yacoubian the district court found that because the Immigration & Naturalization Service instituted deportation proceedings against Yacoubian, it was in violation of the court’s 1989 Judicial Recommendation Against Deportation (“JRAD”) issued pursuant to 8 U.S.C. § 1251(b) (1988). As a consequence, the court permanently enjoined the INS ...
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23 F.3d 1547 24 UCC Rep.Serv.2d 541, 40 Fed. R. Evid. Serv. 1092 WESTERN RECREATIONAL VEHICLES, INC., a Washingtoncorporation, Plaintiff-Appellee,v.SWIFT ADHESIVES, INC., A DIVISION OF REICHHOLD CHEMICALS,INC., a Delaware corporation, Defendant-Appellant.WESTERN RECREATIONAL VEHICLES, INC., a Washingtoncorporation, Plaintiff-Appellant,v.SWIFT ADHESIVES, INC., A DIVISION OF REICHHOLD CHEMIC...
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Opinion Following a contested jurisdiction hearing, the trial court found true the only allegation in a subsequent petition under Welfare and Institutions Code section 602 that defendant possessed a firearm while on probation and in violation of an express probation condition prohibiting such activity (Pen. Code, § 12021, subd. (d)). Thereafter, and at the conclusion of a contested dispositiona...
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24 F.3d 16 Bryan Keith HARRIS, Plaintiff-Appellant,v.John MARHOEFER; County of San Bernardino, Defendants,andBrian Alvarez, Individually and as a Deputy Sheriff,Defendant-Appellee.Bryan Keith HARRIS, Plaintiff-Appellee,v.John MARHOEFER; County of San Bernardino, Defendants,andBrian Alvarez, Individually and as a Deputy Sheriff,Defendant-Appellant. Nos. 92-56182, 92-56282. United Stat...
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Opinion by Judge WIGGINS. Nathaniel James is a state prisoner who petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He appeals from a district court’s order denying his petition and dismissing it with prejudice. Petitioner challenges his state murder conviction primarily on the ground that his Sixth Amendment right to be informed of the nature and cause of the charge was v...
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24 F.3d 10 62 USLW 2717 Dick MILLETT; Pat Waters; Don Zeller; David Van Meter;Robert Kalbfleisch, individuals, Plaintiffs-Appellants,v.UNION OIL COMPANY OF CALIFORNIA, a foreign corporation dbaUNOCAL 76, Defendant-Appellee. No. 92-36883. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1994.Decided May 12, 1994. David S. Shannon, Shannon...
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Opinion by Judge T.G. NELSON. I OVERVIEW Edward L. Powell (Powell) appeals his conviction on a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court severed the firearm charge from three unrelated counts. The principal issue on appeal is whether Powell’s appeal from the first trial on the three severed counts divested the di...
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24 Cal.App.4th 1473 (1994) 30 Cal. Rptr.2d 469 NEW HAVEN UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. TACO BELL CORPORATION, Defendant and Respondent. Docket No. A058609. Court of Appeals of California, First District, Division One. May 11, 1994. *1476 COUNSEL Quaresma, Benya, Hall, Connich, O'Hara & Nixon and David M. O'Hara for Plaintiff and Appellant. Tobin & Tobin and Martin H...
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24 Cal.App.4th 1521 (1994) 29 Cal. Rptr.2d 894 SCOTT CALDWELL, Plaintiff and Appellant, v. METHODIST HOSPITAL OF SOUTHERN CALIFORNIA, Defendant and Respondent. Docket No. B074887. Court of Appeals of California, Second District, Division Seven. May 11, 1994. *1523 COUNSEL Stephen F. Danz and Adrian Gragas for Plaintiff and Appellant. Herzog & Fisher, James P. Herzog and Kimberly M. Talley for...
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Opinion Appellant, Buena Engineers, Inc., was one of over 100 defendants involved in complex litigation regarding liability for a toxic disposal site in Ventura County. After three years of discovery and pretrial *1502 motions, appellant was involuntarily dismissed from the action. Appellant requested an award of costs and attorney fees under Code of Civil Procedure section 1...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 §§ 187, 12022, subd. (a)(1)) and sentenced to state prison for 26 years to life, appellant contends prosecutorial misconduct, instructional errors, and an abuse of sentencing discretion require a reversal of the judgment. We find no error and affirm. Procedural Background Jose Walter Franco (appellant), Ge...
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Opinion Petitioner, the United Teachers—Los Angeles union, sought a writ of mandate in the superior court to compel respondents, Los Angeles Unified School District, Board of Education of the Los Angeles Unified School District and Irene Yamahara, associate superintendent of personnel, to grant part-time status to eligible employees pursuant to regulations adopted by respondents and incor...
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*1546Opinion In this appeal we address the question of whether dismissal of a dependency action at the dispositional hearing renders the case moot, preventing review of findings upon which continuing orders for custody and visitation are based. We conclude it does not Wayne C., the minors’ father, appeals from juvenile court orders following a dispositional hearing establishing custody and visita...
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Opinion Robert and Charlene Jioras (appellants) purchased a house built by a partnership composed of four individuals. 1 Appellants later sued the partners, claiming the house was defective. The partners sought coverage under certain policies issued by respondent State Farm Fire and Casualty Company (insurer). Insurer accepted the defense, subject to a reservation of rights, an...
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Opinion by Judge KOZINSKI. We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics— what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments. I During the mad scramble that usually follows hard upon an airplane’s arriv...
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Thomas Morgan was convicted for the murder of Carol May and the attempted murder of Emmerson DeVine, a couple he had met through his girlfriend, Beverly Todd. After exhausting state remedies, *51 Morgan filed a habeas petition in federal district court. We review the district court’s denial of the petition de novo. Brown v. Borg, 951 F.2d 1011, 1014 (9th Cir.1991). I Morgan argues that he...
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24 F.3d 1088 62 USLW 2709, 1994 Copr.L.Dec. P 27,264,30 U.S.P.Q.2d 1746 SUBAFILMS, LTD.; The Hearst Corp.,Plaintiffs-counter-defendants-Appellees,v.MGM-PATHE COMMUNICATIONS CO., fka MGM/UA Communications Co.and as United Artists Corporation; MGM/UA Home Video, Inc.;Warner Home Video, Inc.; Warner Bros. Inc.,Defendants-counter-claimants-Appellants.SUBAFILMS, LTD.; The Hearst Corp., Plai...
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Opinion by Judge BEEZER. Two corporate defendants petitioned the district court for a writ of error coram nobis, alleging that the indictment to which they pled nolo contendere failed to state a criminal offense. The corporations sought dismissal of the indictment and return of restitution and monetary fines. The district court denied the petition on a theory of lach-es and, alternatively...
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Per Curiam; Concurrence by Judge RYMER. Thomas Clifford Whitmore appeals his convictions for a variety of narcotics-related offenses. Whitmore and 15 co-defendants were charged in a 44-count indictment with numerous drug-related offenses. The government’s theory of the case placed Whit-more at the center of an ongoing narcotics conspiracy, which began in early 1986 and continued until Whitmore’s a...
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Opinion by Judge RYMER. Oscar Lidell Coleman appeals his sentence on one count of possession of cocaine base with intent to distribute, to which he entered a conditional plea of guilty. He contends that the difference between statutory and Guidelines sentences for crack and powder cocaine is unconstitutional. We separately affirm his conviction in a memorandum disposition, and now affirm his se...
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OPINION The Debtor’s Chapter 11 1 plan was confirmed by the bankruptcy court which provided that all real property taxes would become a lien upon the real property and no administrative claim against the Debtor. The secured creditor appealed the order confirming the plan. We AFFIRM. I. FACTS On August 25, 1989, the appellee, Carolina Triangle Limited Partnership (...
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Opinion In this case we consider whether an employee subject to false imprisonment at the hands of her employer may sue that employer in a civil action, or whether such a suit is barred by the exclusivity provisions of the Workers’ Compensation Act (Lab. Code, §§ 3600, 3602). We conclude that her suit would not be barred, because an employer that falsely imprisons its employee has stepped...
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7 Cal.4th 725 (1994) 872 P.2d 143 29 Cal. Rptr.2d 804 JOHN M. MOREHART et al., Plaintiffs and Respondents, v. COUNTY OF SANTA BARBARA et al., Defendants and Appellants. Docket No. S030829. Supreme Court of California. May 12, 1994. *730 COUNSEL David Nawi, County Counsel, Stephen Shane Stark, Chief Deputy County Counsel, and Colleen Parent Beall, Deputy County Counsel, for Defendants and Appellan...
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Opinion In this petition for writ of mandate, the State of Oregon, Oregon State University, and Oregon Health Sciences University and Clinics challenge the trial court’s denial of their motion to quash (Code Civ. Proc., § 418.10) based on lack of “minimum contacts” and comity. Under the particular facts presented, we find personal jurisdiction over petitioners is warranted, and deny the p...
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delivered the opinion of the Court. As solid waste output continues apace and landfill capacity becomes more costly and scarce, state and local governments *386are expending significant resources to develop trash control systems that are efficient, lawful, and protective of the environment. The difficulty of their task is evident from the number of recent cases that we have heard involving waste t...
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delivered the opinion of the Court. After respondent Guardian Life Insurance Company 1 terminated petitioner’s general agency agreement, petitioner brought suit in California Superior Court alleging various state-law claims. Respondent removed the case to the United States District Court for the Eastern District of California on the basis of diversity jurisdiction and filed stat...
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delivered the opinion of the Court. This case presents the question whether a motor carrier in bankruptcy may recover for undercharges based on tariff rates that are void as a matter of law under the Interstate Commerce Commission’s regulations. We hold that the carrier may not rely on the filed but void tariff. I On August 20, 1984, petitioner Security Services, Inc., (then known as Riss Internat...
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Opinion by Judge KLEINFELD. The issue in this case was whether Continental Airlines, which had not previously enforced an anti-assignment provision on discount coupons, could begin enforcing it and obtain an injunction. We hold that it could, and affirm. Facts Continental published discount coupons in 1991 and 1992. They were redeemable with Continental for various discounts, su...
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24 F.3d 1545 64 Fair Empl.Prac.Cas. (BNA) 1420 EXECUTIVE SOFTWARE NORTH AMERICA, INC.; Craig Jensen;Sally Jensen, Petitioners,v.UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OFCALIFORNIA, Respondent,Donna L. Page, Real Party in Interest. No. 93-70679. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 7, 1993.Filed Jan. 27, 1994.Opinion Withdrawn M...
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Opinion by Judge WRIGHT. Omero Ortiz-Lopez appeals his conviction for reentering the United States illegally after having been previously deported, in violation of 8 U.S.C. § 1326(b)(1) and (2). We find that his indictment did not violate the Speedy Trial Act but reverse his conviction because there was insufficient evidence to prove he was an alien. BACKGROUND In early December 1992, the I...
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Opinion Appellant Benjamin Padayao was convicted of the torture murder of a victim, and was sentenced to life without possibility of parole. He contends: (1) The trial court’s rulings on the proper scope of cross-examination violated his constitutional rights to cross-examine four witnesses, and to present a defense to the charges; (2) there was insufficient evidence to support the jury’s finding ...
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Opinion NN Investors Life Insurance Company, Inc. (NN), National Association for the Self-Employed (NASE), Kevin E. Winn, Winn & Associates, Bob Winn, United Group Association, Inc., and Aegon USA, Inc. (referred to collectively as defendants, except where individual identification is necessary), appeal from an adverse judgment following jury trial of an action brought by Mary Jane Hadlan...
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Opinion by Judge GOODWIN Paula Martineau and Georganna Lagen, Nevada state prisoners, appeal the denial of their petitions for writs of habeas corpus. A Nevada state jury convicted them of involuntary manslaughter and child abuse following the death of Lagen’s 27-month-old daughter, Michelle. The Nevada Supreme Court reversed the manslaughter conviction for insufficient evidence, finding ...
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Opinion by Judge HUG. Leon Angel Valencia was convicted of conspiracy to possess cocaine with the intent to distribute and possession of cocaine with the intent to distribute in violation of 21 U.S.C. §§ 841 and 846. Valencia appeals his conviction on the ground that the district court erred by denying his motion to suppress evidence obtained from an allegedly illegal arrest and an invalid sear...
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Opinion Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. The question is whether the Leg...
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I dissent. I believe the Legislature intended the term “fetus” in its 1970 amendment to Penal Code section 187 to mean a viable fetus. I rest this belief on a number of grounds. I First, “ ‘The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law.’ ” (People v. Thomas (1992) 4 Cal.4th 206, 210 [14 Cal.Rptr.2d 174, 841 ...
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Opinion A petition was filed alleging that Aontae D. (appellant) came within the provisions of Welfare and Institutions Code 2 section 602 by having committed a robbery and having personally used a firearm in committing that crime. The matter was tried before referee Dumanis, sitting as a temporary judge pursuant to stipulation. She found the robbery charge and firearm use to be true and sust...
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Opinion In this case, we are called upon to decide if the reciprocal discovery statute, Penal Code section 1054.3, subdivision (a), requires a defendant to disclose the results of standardized tests taken by a psychologist where the psychologist was identified as a defense expert, the psychologist relied on the test results in forming an opinion and his opinion was disclosed to the distri...
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Opinion by Judge TANG. Appellants are former members of the Board of Directors (collectively, the “Board” or “Board members”) of Nevada Federal Credit Union (“NFCU”). On February 13, 1990, the Supervisory Committee of NFCU unanimously voted to suspend five of the Board members. 1 Two weeks later, the NFCU membership voted to sustain the Supervisory Committee’s action, pursuant ...
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24 F.3d 1134 146 L.R.R.M. (BNA) 2449, 128 Lab.Cas. P 11,102 MAUI TRUCKING, INC.; Decoite Trucking, Inc.; and T.J.Gomes Trucking Co., Inc., Plaintiffs-Appellants,andGeneral Contractors Labor Association and Labor Associationof the Building Industry Association of Hawaii,Plaintiffs-Intervenors-Appellees,v.OPERATING ENGINEERS LOCAL UNION NO. 3 INTERNATIONAL UNION OFOPERATING ENGINEERS AFL-...
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24 F.3d 1114 62 USLW 2772, 18 Employee Benefits Cas. 1293 THOMAS, HEAD & GREISEN EMPLOYEES TRUST; Ronald E. Greisen;Henry P. Head, Plaintiffs-Appellees,v.Jack BUSTER, Defendant-Appellant,andTerry D. Parks and Northern Financial, Defendants. No. 92-36732. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 4, 1993.Decided May 18, 1994. A. Lee ...
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Opinion by Judge WRIGHT. A risk is a risk. But a risk of a risk is not enough of a risk. Every predicate attempted burglary conviction under the Armed Career Criminal Act must encompass conduct posing a risk of violent confrontation. It is not enough that most convictions would encompass such conduct. BACKGROUND The district court sentenced Edward Weekley to 65 months imprisonment for being...
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Opinion by Judge RYMER. This appeal requires us to decide whether Application Note 4 to U.S.S.G. § 2B1.1, providing that “loss [in cases of fraud] includes any unauthorized charges made with stolen credit cards, but in no event less than $100 per card,” applies to unauthorized use of credit card numbers as well as the card itself. We hold that it does. Kenneth Yellowe appeals his sentence a...
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Opinion Here we hold that the transferor of an interest in real property is not liable for latent defects in the property which the transferor did not know about, and had no reason to believe existed. *1686 Plaintiff Linda Lorenzen-Hughes appeals from the summary judgment granted defendant-respondent, MacElhenny, Levy & Co. We affirm. Facts On April 19, 1990, Loren...
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Opinion by Judge BRUNETTI Federal prisoner Zoltán Attila Biro (“Biro”) appeals pro se the district court’s denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence which the district court imposed following his plea of guilty to conspiracy to distribute cocaine and distribution of cocaine. We address only Biro’s claim that the district court erred in not advising him ...
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25 F.3d 743 18 Employee Benefits Cas. 1138 CREDIT MANAGERS ASSOCIATION OF SOUTHERN CALIFORNIA; StateCourt Receiver for Far West Administrators, Inc.; theComplete Association; the Complete Master Trust; FincompInsurance Marketing, Inc., Plaintiffs-Appellants,v.KENNESAW LIFE AND ACCIDENT INSURANCE COMPANY, Defendant-Appellee. Nos. 91-55070, 91-55447 and 91-55789. United States Co...
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Opinion by Judge O’SCANNLAIN We must decide whether one who erroneously pays the taxes of another may sue for a refund. I In April 1975, Jerrold Rabin (“Rabin”) and his then wife Lori Rabin (now Lori Williams) (“Williams”) purchased a house in Pacific Palisades, California. On June 29, 1987, and March 28, 1988, the government assessed employment tax liabilities against Rabin. On October 20,...
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Opinion In a partition action of the husband’s military retirement benefits, the trial court ordered that in order to receive her share of the *1704 benefits, the wife had to waive further spousal support, which she did. Congress later took away her interest in her ex-husband’s military retirement benefits, Here we affirm the trial court and hold that the trial court had jurisdiction to order...
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Opinion Plaintiff and appellant Robert R. Davenport appeals from the judgment denying his petition for a writ of administrative mandamus (Code Civ. Proc., 1094.5) to review the decision of defendant and respondent California Unemployment Insurance Appeals Board (CUIAB or Board) which denied Davenport unemployment insurance compensation. *1697 Davenport was a student at the U...
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Opinion by Judge FLETCHER. Plaintiff William M. McCormick appeals the dismissal of his claims on summary judgment. Between 1983 and 1989, McCormick was CEO of the Fireman’s Fund Insurance Company (FFIC), a wholly-owned subsidiary of defendant Fund American Companies (FAC). When McCormick resigned from FFIC, he owned approximately 500,000 performance shares and option shares in FAC. The ve...
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The district court sentenced Larry Wayne Carper, Jr. to eighteen months imprisonment after it revoked his supervised release. Carper challenges this sentence on the ground that the district court did not afford him the right of allocution required by Federal Rule of Criminal Procedure 32(a)(1)(C). We have jurisdiction under 18 U.S.C. § 3742(a). I. Carper was sentenced on May 3, 1990 t...
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delivered the opinion of the Court. The State of Missouri imposes a uniform, statewide use tax on all goods purchased outside the State and stored, used, or consumed within the State. Although the tax is purportedly designed to “compensate” for sales taxes imposed by local jurisdictions on sales of goods in the State, local sales tax rates vary widely, and in many jurisdictions the use tax exce...
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511 U.S. 531 (1994) BFP v. RESOLUTION TRUST CORPORATION, as RECEIVER OF IMPERIAL FEDERAL SAVINGS ASSOCIATION, et al. No. 92-1370. United States Supreme Court. Argued December 7, 1993. Decided May 23, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *532 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., jo...
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After petitioner appealed the dismissal of his employment discrimination claim, respondent moved for dismissal of the appeal and for sanctions. Respondent argued that the appeal was frivolous in light of controlling decisions of the Court of Appeals for the Seventh Circuit holding that § 101 of the Civil Rights Act of 1991, 105 Stat. 1071, 42 U. S. C. § 1981 (1988 ed., Supp. IV), does not apply t...
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delivered the opinion of the Court. The National Labor Relations Act (Act) affords employees the rights to organize and to engage in collective bargaining free from employer interference. The Act does not grant *573those rights to supervisory employees, however, so the statutory definition of supervisor becomes essential in determining which employees are covered by the Act. In this case, we decid...
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511 U.S. 513 (1994) POSTERS `N' THINGS, LTD., et al. v. UNITED STATES No. 92-903. United States Supreme Court. Argued October 5, 1993. Decided May 23, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *514 Blackmun, J., delivered the opinion of the Court, in which Rehnquist, C. J.,and Stevens, O'Connor, Souter, and Ginsburg, JJ., joined. Scalia, J., filed an opinion co...
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The judgment of the United States Court of Appeals for the Fifth Circuit is affirmed by an equally divided Court. Justice O’Connor took no part in the consideration or decision of this case....
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ORDER The petition for rehearing filed February 2, 1994, is granted. Upon hearing further oral argument and examining supplementary briefs and other materials, the prior opinion of this court filed January 19, 1994, is withdrawn. A revised opinion is attached to this order and is filed as the opinion of this court in this case. OPINION In October of 1989, Roland Gibeault and Inge Maudal bro...
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Opinion by Senior Circuit Judge BRIGHT. ORDER The petition for rehearing filed February 2, 1994, is granted. Upon hearing further oral argument and examining supplementary briefs and other materials, the prior opinion of this court filed January 19, 1994, is withdrawn. A revised opinion is attached to this order and is filed as the opinion of this court in this case. OPINION Max Killingsw...
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Opinion Steven A. Booska and his wife, Gloria Booska (hereafter Booska), appeal from a summary judgment entered against them in their action against their neighbors, Ramanbhai B. and Savitriben R. Patel, and the Patels’ employees (hereafter Patel). We find that there are triable issues of material fact and reverse. Factual and Procedural Background We approach an appeal from a s...
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Opinion Plaintiff, City and County of San Francisco (city), appeals from an order modifying the amount of child support and ordering blood tests of the child, her mother and defendant, Mark Stanley. In January of 1987 the city brought a complaint for child support, reimbursement of public assistance, and establishment of paternity against Mark Stanley (Stanley) on behalf of a little ...
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Opinion In this case, we consider the facial validity of a Santa Monica Rent Control Board regulation which prohibits landlords who purchased rental property after the inception of rent control from seeking an adjustment in base rents. Appellant Santa Monica Rent Control Board (the Board) contends that the regulation draws a rational distinction between those who *1733 purcha...
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Opinion Appellant, landlord, appeals from a judgment in favor of tenant in an unlawfiil detainer action. The trial court found that the amount demanded in the notice to pay rent exceeded the amount owed and hence was deficient. On that basis, the court held for tenant. Landlord contends (1) the court erred in awarding judgment to tenant since the latter failed to tender the amount of rent ackno...
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Opinion In consolidated actions for dissolution of marriage the trial court awarded judgment to wife based on a marital settlement agreement and ordered the judgment effective nunc pro tunc. In a subsequent order, the trial court awarded attorney fees to wife. We affirm. Facts and Proceedings Below We will refer to appellant, Joel Tamraz, as “husband” and respondent, Barbara Tamraz, as “wif...
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Opinion In this action, plaintiffs are suing petitioner for legal malpractice in the settlement of their suit for property damage against the City of Palos Verdes (hereafter the City). Petitioner demanded production of all documents containing the terms and conditions of plaintiffs’ recovery from their own insurer for the same property damage that was the subject of the suit against the C...
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Opinion Appellant, Ondrea M. Lee, appeals from a judgment of conviction of criminal offenses. She contends there was insufficient evidence to support the finding she was competent during the preliminary examination and therefore testimony from that hearing should not have been *1775 introduced at trial. She further argues counsel was ineffective for failing to declare a doubt...
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I.OVERVIEW Juan Buenrostro-Torres appeals his sentence imposed after he pleaded guilty to four counts of possession of false immigration documents and document-making equipment with intent to produce and transfer the documents, and possession of counterfeit alien registration receipt cards, in violation of 18 U.S.C. §§ 1028(a)(3), 1028(a)(5) & 1546(a). We have jurisdiction under 28 U.S.C. ...
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Appellants are the manufacturer and former distributors and owners of an arcade “crane” amusement game called “The Challenger.” Soon after such games were first introduced in Phoenix, the City received numerous complaints about the games. The City responded by revoking license tags for some already approved machines and by imposing a blanket ban on new approvals for a period of roughly four and a...
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Opinion Defendant Hector Guillermo Iniguez admitted that on the night before Mercy P.’s wedding, he approached her as she slept on the living room floor, removed her pants, fondled her buttocks, and had sexual intercourse with her. He further conceded that he had met Mercy for the first time that night, and that Mercy did not consent to any sexual contact or *851 intercourse....
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Opinion Plaintiff Susan Cousins appeals from an order of dismissal entered after the superior court sustained a demurrer to her petition for writ of mandate and damages challenging her termination by defendant Weaver-ville Elementary School District (District). Cousins, a certificated probationary employee of District, asserts that because her termination was based on economic considerati...
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*3 Opinion In 1974, the developer of the Broadmoor homes recorded a declaration of covenants, conditions and restrictions (CC&Rs) which provided “no business or commercial activity shall be maintained or conducted upon any of the [Broadmoor homes].’’ In 1990, appellants Robert N. Nelson, individually and as trustee of the Robert N. Nelson and Elsie M. Nelson Revocable Living Trus...
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Opinion Stacy Z. appeals an order after a selection and implementation hearing under Welfare and Institutions Code1 section 366.26 terminating her parental rights to minor child Daniel D. and referring him for adoption. Stacy contends delay resulting from dilatory tactics by the San Diego County Department of Social Services (the Department) violated her right to custody and Daniel’s extended fami...
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PER CURIAM; Dissent by Judge BRUNETTI. Kenneth Crandell represented himself in capital proceedings in California state court. He was convicted of two counts of murder, each with a special circumstance of multiple murders, as well as kidnapping and assault with intent to commit rape.1 Crandell brought a federal habeas petition claiming his state conviction was flawed by numerous constitutional erro...
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Opinion WALLIN, J.—Golden West Baseball Company (GWBC), which owns the California Angels baseball team, sued the City of Anaheim (Anaheim) when Anaheim issued a conditional use permit for Anaheim Stadium Associates (ASA) to construct an office complex on part of the parking lot of Anaheim Stadium. GWBC claimed the proposed development violated the terms of its *19 “lease” ...
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Opinion Appellant was charged with two counts of conspiracy (Pen. Code, § 182, subd. (a)(1)): conspiracy to transport heroin in violation of Health and Safety Code section 11352, subdivision (a); and conspiracy to purchase/possess a controlled substance for sale in violation of Health and Safety Code section 11351. It was alleged he was armed with a firearm in the commission of the charged offe...
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*66 Opinion David Allen Phillips appeals a judgment of conviction entered upon his negotiated plea of nolo contendere to one count of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and one count of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On appeal, defendant contends that an order requiring him to pay probation ...
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Opinion Klee Green Mathews was convicted in a jury trial of exhibiting a firearm in the presence of a peace officer (Pen. Code, § 417 subd. (c), formerly subd. (b)), a lesser and necessarily included offense of assault upon a peace officer with a firearm. (Pen. Code, § 245 subd. (d)(1)). Probation was granted upon certain terms and conditions. Prior thereto, he unsuccessfully brought a motion t...
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25 Cal.App.4th 102 (1994) 30 Cal. Rptr. 486 GERALD SANTANTONIO, Plaintiff and Appellant, v. WESTINGHOUSE BROADCASTING COMPANY, INC., et al., Defendants and Respondents. Docket No. B070149. Court of Appeals of California, Second District, Division Seven. May 25, 1994. *108 COUNSEL Inman, Weisz & Steinberg, Drew E. Pomerance and Hali E. Ziff for Plaintiff and Appellant. Hill, Farrer & Burri...
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Opinion This appeal challenges the constitutionality of Revenue and Taxation Code 1 section 97.03, subdivision (c), which reallocates a percentage of property tax revenues from special districts to each county’s Educational Revenue Augmentation Fund. 2 Eight fire protection districts, a municipal improvement water district which provides fire protection services base...
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Opinion Gary Joe Wiley appeals a judgment in which he was convicted of kidnapping for ransom (Pen. Code, 1 § 209, subd. (a)), kidnapping for robbery (§ 209, subd. (b)), possessing a firearm by a felon (§ 12021, subd. (a)), and three counts of robbery (§211) with five weapon enhancement allegations (D016970), a separate judgment convicting him of being a felon in possession of a firearm (§ 120...
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Opinion In this action for rescission of a contract to purchase an automobile, the trial court found in favor of respondent RBB, Inc., doing business as Ferrari of Los Gatos, on both appellant’s complaint and respondent’s cross-complaint for breach of contract. Appellant contends the trial court misinterpreted Vehicle Code section 11713, subdivision (p), which restricts a dealer’s collect...
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Opinion by Judge HUG. Appellant Roxanne Phillips Bassette (“Bassette”) brought suit against Appellee Stone Container Corp. (“Stone”), her former employer, for allegedly terminating her without good cause, in violation of Montana’s Wrongful Discharge From Employment Act, Mont.Code'" Ann. §§ 39-2-901 et seq. (1987) (‘WDA”). The district court granted Stone’s motion for summary ju...
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Opinion by Judge HUG. This case requires us to determine whether the district court’s denial of motions to remand cases removed from an Alaska state court was error. This interlocutory appeal concerns the removal of over 160 separate cases brought in the Superior Court of the State of Alaska. Plaintiffs sued Exxon and Alyeska under Alaska law for the injuries caused by the Exxon Val...
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Opinion by Judge CANBY; Dissent by Judge NORRIS The United States and Richard Boeh,1 an agent of the Federal Bureau of Investigation, appealed from the district court’s denial of a motion to quash a subpoena ad testificandum and two civil contempt orders issued in response to Boeh’s refusal to testify in a civil trial. The appeal was expedited pursuant to 28 U.S.C. § 1826(b). On February 18, 1992...
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Opinion Code of Civil Procedure section 664.61 provides that “[i]f parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally on the record before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain j...
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7 Cal.4th 860 (1994) 873 P.2d 1224 30 Cal. Rptr.2d 629 PLANNED PARENTHOOD SHASTA-DIABLO, INC., Plaintiff and Respondent, v. CHRISTINE WILLIAMS et al., Defendants and Appellants. Docket No. S031721. Supreme Court of California. May 26, 1994. *864 COUNSEL John R. Streett for Defendants and Appellants. James Joseph Lynch, Jr., Jay Alan Sekulow, Walter M. Weber, Thomas P. Monaghan, Christopher R. Ina...
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Opinion Appellants are three tenured Humboldt State University professors who were laid off after 10 to 22 years of teaching. They filed suit against California State University (CSU), Humboldt State University, the Trustees of the California State University and various individuals (the university defendants) and the California Faculty Association (CFA) (an employee organization that rep...
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Opinion Marina Green Homeowners Association (the Association) filed a complaint against State Farm Fire and Casualty Company (State Farm). As *202 relevant here, the complaint stated several causes of action, each was premised on a claimed breach of duty by State Farm to provide earthquake insurance to the Association. The superior court granted summary judgment to State Farm...
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*244 Opinion The issue presented in this case is whether an attorney’s duty to release all “client papers and property” to a former client upon request (rule 3-700, Rules Prof. Conduct, hereafter rule 3-700) 1 requires disclosure of the attorney’s “absolute” work product. (Code Civ. Proc., 2018, subd. (c).) 2 We conclude, on the facts presented, that petitio...
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Opinion A commercial grower purchases young peach trees from a nursery and plants them. The trees eventually exhibit symptoms of a disease and are determined to be diseased. The grower sues the nursery. He contends that the trees were already diseased when he purchased them, and that they were not healthy trees as warranted by the seller. If the grower can prove that the trees were diseas...
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Opinion A jury convicted Leon Richard Franklin of one count of continuous sexual abuse of a child under the age of 14 with substantial sexual contact (Pen. Code, §§ 288.5, 1203.066, subd. (a)(8)) and he was sentenced to 16 years in state prison. He appeals, contending that he was prejudiced by the exclusion of evidence relevant to the contested issues in this case and that there is no fac...
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delivered the opinion of the Court. Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River in Washington State. We must decide whether respondent state environmental agency (hereinafter respondent) properly conditioned a permit for the project on the maintenance of specific minimum stream flows to protect salmon and steelhead runs. *704I Th...
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23 F.3d 1480 Johanna TREVINO, a Minor, By and Through her next friend,her Grandmother, Filadelphia CRUZ, Plaintiff-Appellee,v.Daryl GATES, Defendant,andJoel Wachs, Joy Picus, John Ferraro, Zev Yaroslavsky, RuthGalanter, Ernani Bernardi, Marvin Braude, HalBernson, Michael Woo, Joan Flores,Defendants-Appellants. No. 92-56069. United States Court of Appeals,Ninth Circuit. Argued and S...
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Opinion by Judge LEAVY. The holder of a mechanic’s hen against property subject to forfeiture appeals from that portion of the district court’s judgment denying costs, fees, and interest on the hen principal, arguing that the district court erred by concluding that an innocent hen-holder was not entitled to post-seizure costs, fees, and interest under federal forfeiture law. For the reasons which...
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25 F.3d 784 29 Fed.R.Serv.3d 218 Robert Lee ZIMMERMAN, Plaintiff-Appellant,v.BISHOP ESTATE, a charitable trust; Bishop Estate TrusteesWilliam Richardson, Henry Peters, Oswald Stender, MyronThompson and Matsuo Takabuki in their official capacities;Bishop Estate Trustees William Richardson, Henry Peters,Myron Thompson and Matsuo Takabuki individually; ElaineDung and Paul Cathcart, in their...
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Opinion Defendant was convicted in a court trial of first degree burglary. He raises two issues on appeal: (1) whether the prosecution exercised due diligence to obtain the presence of its chief witness at trial; (2) whether defendant’s entry through a locked gate onto an outdoor stairway constitutes burglary. Facts The Offense On September 8,1992, between 2 a.m. and 3 a.m., Richard Lea...
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Opinion Petitioner, Debbie Reynolds Professional Rehearsal Studios, seeks a writ of mandate directing the superior court to set aside an order denying its motion for judgment on the pleadings. Code of Civil Procedure, section 340.1 1 extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine whether the tolling provision of that statute ap...
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Opinion This case concerns whether a signatory to a contract with an attorney fee provision, who is sued by a nonsignatory for breach of that contract, is entitled to attorney fees if the signatory is the prevailing party. Defendant and appellant the City of Pasadena (the City) appeals from that portion of a judgment against plaintiff and respondent Real Property Services Corp. (RPS) deny...
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Opinion . Defendant Wayne Conway was convicted by jury of first degree burglary (Pen. Code, § 459). The trial court found true the allegations that he had been convicted previously of two serious felonies (Pen. Code, § 667, subd. (a)) and had served prison terms for five felony convictions (Pen. Code, § 667.5, subd. (b)). Defendant was sentenced to a prison term of 21 years for the burglary and...
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Opinion After months of harassing his ex-girlfriend, appellant Thomas John Heilman went to her place of employment in a rental car and waited for her to arrive. When the hapless victim arrived, Heilman confronted her with a loaded pistol, shot her in the stomach at point-blank range, ripped the public phone from the wall so she could not call for help, and fled. Following a court trial, Heilm...
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Opinion by Judge REINHARDT. The issue before us is whether the California disability statute, Cal.Civ.Proc. Code § 352(a)(3), tolls the statute of limitations when a plaintiff, suing under 42 U.S.C. § 1983 to recover for injuries suffered during an arrest, is held in continuous custody from the time of that arrest through the period of his incarceration following his conviction. Plaintiff Charl...
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25 F.3d 804 Michael G. FORRESTER; Michaelene Ann Jenkins; Donna E.Niehouse; Dena A. Niehouse; Nancy H. Scofield;Harold E. Scofield, Plaintiffs-Appellants,v.CITY OF SAN DIEGO, a municipal corporation; Donald Fashing;D. Hannan, Defendants-Appellees. No. 92-55137. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 14, 1993.Decided June 1, 1994. Llo...
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25 F.3d 1426 UNITED STATES of America, Plaintiff-Appellee,v.Chong In KIM, Defendant-Appellant. No. 93-10022. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 11, 1994.Decided June 1, 1994. Joseph M. Gedan, Honolulu, HI, for defendant-appellant. Florence T. Nakakuni, Asst. U.S. Atty., Honolulu, HI, for plaintiff-appellee. Appeal from the...
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Opinion by Judge O’SCANNLAIN. We consider the conditions under which a court may depart upward from a statutorily-imposed mandatory minimum sentence. I Francisco Rodriguez-Martinez (“Rodriguez”) was convicted of possession with intent to distribute one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(l)(B)(ii)(II). He appeals his sentence, contending that th...
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Opinion by Judge O’SCANNLAIN. Is a gun used “in connection with” interstate transportation or unlawful possession of a stolen ear, thereby justifying enhanced sentencing, if it is found in the glove compartment when the thief is eventually apprehended? I In January 1992, Routon stole a Cadillac from Renick Cadillac, a car dealership in Fullerton, California. Routon remained at large with th...
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Opinion by Judge BEEZER. Michael Stoops appeals the sentence imposed under the United States Sentencing Guidelines following his plea of guilty to one count of bank robbery. Stoops received a two-level downward adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3El.l(a). He contends that the district court erred by denying him an additional one-level reduction pursuant to § 3El....
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25 F.3d 823 ACF INDUSTRIES, INC.; General American TransportationCorporation; General Electric Railcar Services Corporation,Pullman Leasing Company; Railbox Company; Railgon Company;Trailer Train Company; Union Tank Car Company, Plaintiffs-Appellants,v.DEPARTMENT OF REVENUE OF the STATE OF OREGON, Richard A.Munn, in his capacity as Director of theDepartment of Revenue of the State ofOrego...
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Opinion Doyle v. Ohio (1976) 426 U.S. 610 [49 L.Ed.2d 91, 96 S.Ct. 2240] holds that once an arrestee chooses to remain silent after being admonished pursuant to Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], the prosecution cannot use the fact of that silence to impeach an exculpatory story told for the first time at trial. The primary issue presented is w...
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Aeroquip Corporation brought this action against Aetna Casualty and Surety Company, Inc., seeking a declaration that certain Aetna insurance policies cover cleanup costs resulting from a leak in an underground fuel tank. Each policy excluded coverage for pollution, but some policies contained an exception to the exclusion for “sudden and accidental” pollution. The district court granted summary...
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Opinion by Judge WIGGINS. The district court awarded plaintiffs-appel-lees $90,333 in attorney’s fees after they prevailed in a 42 U.S.C. § 1983 action. Corder v. Gates, 688 F.Supp. 1418 (C.D.Cal.1988). Both parties appealed. The Ninth Circuit reversed and remanded. Corder v. Gates (Corder I), 947 F.2d 374 (9th Cir.1991). On remand, the district court awarded plainti...
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Opinion by Judge PREGERSON. I. OVERVIEW Samson Getachew, a native and citizen of Ethiopia, petitions for review of the Board of Immigration Appeals’s denial of his applications for asylum and withholding of deportation under 8 U.S.C. §§ 1158 and 1253(h). We have jurisdiction under 8 U.S.C. § 1105a(a)(l). We grant the petition for review. II. BACKGROUND Samson Getachew arriv...
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Opinion by Judge WIGGINS This action arose when a barge owned and operated by appellee sank in the inner harbor of Alexandria, Egypt. The barge was carrying machinery and materials for appellant’s assured. Appellant sustained a loss of $1,174,876 when a portion of the cargo was lost or damaged. Appellant brought suit against appellee in federal district court. Appellee moved twice for par...
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Opinion by Judge REINHARDT. Before: REINHARDT and T.G. NELSON, Circuit Judges, and KAUFMAN, * District Judge. Once again, we are called upon to review a conviction obtained by the government as a result of its four-year sting operation at the Triple Neck Scientific company in Kearny Mesa, California. See, e.g., United States v. Bruce, 976 F.2d 552 (9th Cir.1992)...
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In these consolidated appeals, Alfie Night appeals the 135-month sentence imposed following entry of a guilty plea to six counts of bank robbery in violation of 18 U.S.C. § 2113(a) and the 24-month sentence imposed for violating the terms of his supervised release. Night contends that the sentencing court is barred from increasing his offense level pursuant to U.S.S.G. § 2J1.7 because, at the tim...
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Per Curiam. Two police officers observed Rafael Ve-larde walk rapidly through the Honolulu International Airport, abruptly change his path of travel on a few occasions, and nervously glance around as if checking for signs of *849 police surveillance. The officers stopped Ve-larde and asked him questions about his travel plans. After receiving his permission, they searched his shoulder bag and...
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*1796 Opinion Applicant Paul S. Nash, a workers’ compensation judge, filed four applications alleging cumulative and specific industrial injuries from May-1972 to May 28, 1987, to his eyes, hearing, head, back, upper and lower extremities, left hip, right shoulder, psyche, and cardiovascular system. The four cases were consolidated for hearing, and independent medical examiners (...
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Opinion Plaintiff Alta California Regional Center (Alta) is a defendant in consolidated actions pending in Placer County Superior Court. In that litigation, a disabled person, Elizabeth A., and her parents, Gerald and Mary A., seek recovery for personal injuries arising from a sexual assault on Elizabeth which allegedly resulted from Alta’s negligent placement, supervision, entrustment, c...
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Opinion This appeal involves the application of the so-called in-law inheritance statute, former Probate Code section 229, 1 to the distribution of the estate of Jess Stanley Newman, who died on July 29, 1983. Cecil C. Finn, a nephew of Jess’s predeceased wife Frances Elizabeth Newman, filed a petition alleging Jess’s entire probate estate should go to Frances’s blood relatives...
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Opinion After being found ineligible for pretrial drug diversion, defendant Kelly Jean Brackett was convicted in the Placer County Municipal Court of the misdemeanor offenses of being under the influence of a controlled substance (Health & Saf. Code, § 11550) and trespassing (Pen. Code, § 602, subd. (j) [all subsequent statutory references are to the Penal Code unless otherwise indicated]...
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Opinion Anthony Alfred Ciani (Ciani) appeals from a judgment which denied his request for reimbursement of the attorney fees he incurred in a lawsuit and in a postlitigation administrative appeal. Both his lawsuit and his administrative appeal were directed toward preventing the destruction of the so-called “Green Dragon Colony,” which he believed should be preserved as part of the archit...
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Opinion James S. McKeown III appeals an order reestablishing a conservatorship of his person after the trial court denied his motion to dismiss the reestablishment petition for lack of jurisdiction. McKeown also contends the trial court erred in instructing the jury regarding expert testimony. We affirm. Factual and Procedural Background A one-year conservatorship for McKeown was established on A...
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Opinion May operators of medical buildings limit acceptable tenants to medical doctors or do statutory or common law prohibitions require them to lease space to other health care practitioners, in this instance, a podiatrist, or even the world at large? We conclude under the facts presented here, no legal requirement compels landlords to accept tenants who are not medical doctors. Re...
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Opinion Brenda K. appeals from juvenile court dispositional orders adjudging her minor children dependents and removing them from her custody. The mother’s alcohol abuse and emotional problems are at the root of these proceedings. On appeal, she contends her problems have not adversely affected her children and therefore the juvenile court’s findings and orders are unjustified. We will affirm. On ...
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Opinion Defendant, Anthony Jasso, was charged in count I with a lewd and lascivious act upon a child of 14 years, a felony, in violation *593 of Penal Code section 288, subdivision (c); 1 in count II with oral copulation with a person under the age of 16 years, a felony, in violation of section 288a, subdivision (b)(2); in count III with oral copulation with a person under the age of 14 yea...
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Opinion Douglas Bruce Jones appeals the sentence imposed for involuntary manslaughter on remand after his previous appeal. He challenges the trial court’s denial of probation and its imposition of the middle prison term and a greater restitution fine than previously imposed. Our published discussion concerns only the fine issue. Other than to modify the restitution fine, we affirm. F...
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25 F.3d 849 62 USLW 2768, 18 Employee Benefits Cas. 1838 CARPENTERS HEALTH AND WELFARE TRUST FUND FOR CALIFORNIA;Carpenters Pension Trust Fund for Northern California;Carpenters Vacation and Holiday Trust Fund for NorthernCalifornia; Carpenters Apprenticeship and Training TrustFund for Northern California; Carpenters Annuity Trust Fundfor Northern California, Plaintiffs-Appellants,v.TRI ...
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25 F.3d 1437 64 Fair Empl.Prac.Cas. (BNA) 1669,64 Empl. Prac. Dec. P 43,075, 62 USLW 2757,1994-1 Trade Cases P 70,604 Peter P. NGHIEM, Plaintiff-Appellant,v.NEC ELECTRONIC, INC., a California corporation; NECCorporation; Japan (Nippon Electric Company), aJapanese corporation; Hiro Hashimoto;H. Yoshizawa, Dr.; GrantHulse, Defendants-Appellees. No. 92-16155. United States Court ...
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25 F.3d 872 39 ERC 1613, 24 Envtl. L. Rep. 21,117 NORTHWEST RESOURCE INFORMATION CENTER, INC., et al.,Plaintiffs-Appellants,v.NATIONAL MARINE FISHERIES SERVICE, et al., Defendants,andBonneville Power Administration, Defendant-Appellee.NORTHWEST RESOURCE INFORMATION CENTER, INC.; TroutUnlimited; Oregon Natural Resources Council,Inc.; Idaho Steelhead and SalmonUnlimited; Sierra Club, Pla...
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25 F.3d 1443 24 Envtl. L. Rep. 21,111 PACIFIC NORTHWEST GENERATING COOPERATIVE, Plaintiff-Appellant,v.Ronald H. BROWN, in his official capacity as Secretary ofCommerce; National Marine Fisheries Service; PacificFishery Management Council; North Pacific FisheryManagement Council; U.S. Fish & Wildlife Service,Defendants-Appellees,State of Oregon, Defendant-Intervenor-Appellee.ALUMINU...
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26 F.3d 903 1994 A.M.C. 2007 Robert SUTTON; Marlene Sutton, Plaintiffs,v.Virl EARLES, Third-Party-Defendant-Appellee,v.UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant.Stephen BRENNAN, Plaintiff,v.Virl EARLES, Third-Party-Defendant-Appellee,v.UNITED STATES of America, Defendant-Third-Party-Plaintiff-Appellant.Ernest E. CHAVEZ; Carol Kemble; Terez UJJ, Individuallyand ...
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Opinion by Judge FARRIS. Randall T. Quemado appeals his conditional guilty plea conviction for driving while his license was revoked in violation of Hawaii Revised Statutes § 291-4.5. The district court rejected Quemado’s arguments that it lacked federal jurisdiction under the Assimi-lative Crimes Act, 18 U.S.C. § 13 (1988), and that H.R.S. § 291-4.5 is unconstitutional. We have jurisdiction of...
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*863Opinion by Judge HILL; Dissent by Judge ALARCON. Defendant Kenneth Keith Wiseman and four others, Vizcarra, Lopez, Murphy and Branson, were indicted in a two-count indictment for narcotics offenses. Count one charged possession of marijuana with intent to distribute it. 21 U.S.C. § 841 (1988). Count two charged conspiracy to possess marijuana with intent to distribute it. 21 U.S.C. § 846 (1988...
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Opinion In these consolidated appeals, Susan C. and movants Nancy B. and Aleda D., appeal from a final judgment granting the petitions of respondent Paula C. for termination of Susan’s parental rights and for a stepparent adoption, and denying the motion of movants to intervene. Susan also appeals from an earlier order barring her participation in the hearing on the petitions. Because we ...
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*428 Opinion Frank W. Bellows and Frank W. Bellows, Inc. (collectively Bellows), appeal from summary judgments the trial court entered in favor of respondents Aliquot Associates, Inc. (Aliquot), Gary Balsdon, the law firm of Carroll, Burdick & McDonough (Carroll, Burdick), and individual attorneys Jack T. Friedman and Wallace E. Smith. Bellows sued respondents for malicious prose...
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Opinion I. Introduction This appeal challenges the constitutionality of a statute making it a crime to burn a cross on the private property of another for the purpose of terrorizing the owner or occupant or in reckless disregard of that risk. We uphold the statute, concluding it is neither overbroad nor vague, is not an impermissible content-based prohibition on speech, and does not ...
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Opinion Defendants John Frank, in his capacity as Director of the Humboldt County Department of Health and Social Services, and the Humboldt County Board of Supervisors (the County) appeal from the trial court’s order granting the motion of plaintiffs Welfare Rights and eight individuals (plaintiffs) to enforce a consent decree. 1 The County asserts that a 1992 statutory amendm...
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Opinion Plaintiffs Arnold R. Abrams, M.D. (plaintiff or Dr. Abrams) and Arnold R. Abrams, M.D., a professional corporation (professional corporation or medical corporation) appeal from an order denying their request for a preliminary injunction. Plaintiffs sought an injunction prohibiting the defendant St. John’s Hospital and Health Center (hospital) from terminating a contract between th...
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Opinion Plaintiff and appellant Robert A. White appeals from a summary judgment in favor of defendant and respondent Southern California Edison Company (SCE). 1 Plaintiff was injured in a motor vehicle collision which occurred at night in an intersection near an inoperative streetlight owned and maintained by SCE. We conclude SCE owed no duty to plaintiff to maintain the street...
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Opinion This appeal arises from a judgment for the prospective buyers, Abdul Karim Al-Husry and his son Ghassan Al-Husry (collectively the Al-Husrys, or the buyers), of a minimarket business—including the real property on which the market was located, and an off-sale liquor license for the business, together with the liquor inventory—against the prospective sellers, Nilsen Farms Mini-Mark...
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*656 Opinion The trial court overruled a demurrer by cross-defendant Elias Shahvar to a libel claim in a cross-complaint by ASP Computer Products, Inc., Amnon Even-Kesef, Ellen Sigal, and Gerald Sigal (cross-complainants). Shahvar seeks a writ of mandate. At issue is whether Shahvar was privileged under Civil Code section 47 to transmit a facsimile copy of a complaint to a newspa...
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511 U.S. 767 (1994) DEPARTMENT OF REVENUE OF MONTANA v. KURTH RANCH et al. No. 93-144. United States Supreme Court. Argued January 19, 1994. Decided June 6, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *768 Stevens, J., delivered the opinion of the Court, in which Blackmun, Kennedy, Souter, and Ginsburg, JJ., joined. Rehnquist, C. J., post, p. 785, and O'Connor, J...
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delivered the opinion of the Court. Section 1291 of the Judicial Code confines appeals as of right to those from “final decisions of the district courts.” 28 U. S. C. § 1291. This case raises the question whether an order vacating a dismissal predicated on the parties’ settlement agreement is final as a collateral order even without a district court’s resolution of the underlying cause of ...
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delivered the opinion of the Court. Petitioner Key Tronic Corporation, one of several parties responsible for contaminating a landfill, brought this action to recover a share of its cleanup costs from other responsible parties. The question presented is whether attorney’s fees are “necessary costs of response” within the meaning of § 107(a)(4)(B) of the Comprehensive Environmental Response, Compen...
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Ct. App. Cal., 2d App. Dist. Certiorari denied....
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25 F.3d 884 62 USLW 2775, 1994 Copr.L.Dec. P 27,275,31 U.S.P.Q.2d 1037 David Pancost JACKSON, Jr., Plaintiff-Appellant,v.Hoyt AXTON, dba Lady Jane Music; Rondor MusicInternational, Inc., Defendants-Appellees.David Pancost JACKSON, Jr., Plaintiff-Appellee,v.Hoyt AXTON, dba Lady Jane Music; Rondor MusicInternational, Inc., Defendants-Appellants. Nos. 92-56580, 93-55423. United Stat...
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Opinion by Judge REINHARDT. Ronald Keith Baker and Robert Majors each pleaded guilty to one count of being an accessory after the fact to the making of a false statement on a loan application they submitted to California First Bank. See 18 U.S.C. §§ 3, 1014. The district court sentenced Baker and Majors to three years of probation. Pursuant to the Victim and Witness Protection ...
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26 F.3d 923 29 Fed.R.Serv.3d 676 UNITED STATES of America, Plaintiff-Appellee,v.87 SKYLINE TERRACE; 47 Ridge Ave., Mill Valley, California,Defendants,andJohn Olagues, Norman Olagues and Southern DiversifiedInvestors Inc., Claimants-Appellants. No. 92-16265. United States Court of Appeals,Ninth Circuit. Submitted Dec. 17, 1993*.Submission Withdrawn March 2, 1994.Resubmitted Apr...
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Opinion I. Introduction In this case we hold that claims against an employer under the Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) for physical disability discrimination based on a work-related injury are preempted by the exclusive remedy provisions of the workers’ compensation law (Lab. Code, §§ 3600, 3601, 3602). II. Background Jacqueline Langridge was employed by the Oa...
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Opinion In this petition for writ of mandate, petitioners challenge the grant of defendant corporation’s motion to change venue. The issue presented is whether a domestic corporation’s designation of the location of its “principal business office” in its annual domestic stock corporation statement filed with the Secretary of State conclusively fixes the corporation’s “principal place of ...
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Opinion Stephanie Lynne Kelley appeals from a judgment of paternity in favor of Paul Henry Comino in his action to establish a parental relationship with Joshua Paul. We conclude the court properly (1) refused to *681 apply the conclusive presumption of Evidence Code former section 621 1 to establish the paternity of Stephanie’s husband, and (2) found Paul to be a presumed father under Civi...
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Opinion Defendant West End Financial Corporation, Inc. (West End), appeals from an order setting aside a nonjudicial foreclosure and ordering West End to transfer title of certain real property to plaintiff Barbara Baker, public administrator, as administrator of the estate of Della Yates. We affirm the order. Factual Background In 1974, Della Yates purchased a home at 411 Ringwood Drive in Natio...
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Opinion Regional Steel Corporation (Regional) petitions for a writ of mandate after the court denied its motion for summary judgment in *527 this action arising from injuries to an ironworker. Regional, a subcontractor, was named in a cross-complaint for equitable indemnity, comparative contribution and declaratory relief by the general contractor after the ironworker sued the general contrac...
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26 F.3d 930 63 USLW 2032, 18 Employee Benefits Cas. 1567 Lawrence C. HARRIS, Jr.; Mary Harris, Plaintiffs-Appellants,v.PROVIDENT LIFE AND ACCIDENT INSURANCE COMPANY, Tennesseecorporation; Lincoln Memorial Park, Inc., Oregoncorporation; Service CorporationInternational, Texascorporation,Defendants-Appellees. No. 91-36128. United States Court of Appeals,Ninth Circuit. Argued a...
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Opinion by Judge HALL. In this appeal, plaintiffs raise a number of claims arising from their loss of employment and benefits when Coca-Cola sold a portion of its operations. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1441(a) and 1332.- This Court has jurisdiction under 28 U.S.C. § 1291. We affirm. I On January 31, 1989, The Foods Division of The Coca-Cola Company (Coca-Co...
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Opinion by Judge FARRIS; Concurrence by Judge RYMER. Johnnie T. Warren appeals his conviction for first degree murder. 18 U.S.C. § 1111. He argues that the district court erred by employing the blind strike method of jury selection, admitting irrelevant and prejudicial evidence, refusing to submit his theory of defense instruction; and improperly instructing the jury that it could infer malice afo...
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Opinion by Judge HUG; Concurrence by Judge WIGGINS. George Young and William Rogers challenge their sentences imposed under the United States Sentencing Guidelines. Each defendant contends that the district court erroneously enhanced his sentence under U.S.S.G. § 3C1.2 for reckless endangerment during flight. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate the sentences and remand...
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26 F.3d 935 29 Fed.R.Serv.3d 628 The WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION(WUTC), Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION; Bonneville PowerAdministration, Respondents,Public Power Council; Direct Service Industrial Customers(Aluminum Co. of America, Atochem North America, ColumbiaFalls Aluminum Company, Georgia-Pacific Corp., KaiserAluminum & Chemical Corp., In...
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OPINION Alfred and Ruth Nadel, creditors with a judgment hen against the debtor’s home, filed an objection to the debtor’s claim of homestead exemption. The bankruptcy court determined that the debtor was entitled to a homestead exemption in the amount available when the Nadéis’ lien attached to the property. The Nadéis appeal. We AFFIRM in part and VACATE in part the bankruptcy court’s d...
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ORDER On February 3, 1994, this court issued an opinion that affirmed the district court’s decision to abstain from hearing this case because of a pending state case. Akins v. Rodriguez, 15 F.3d 883 (9th Cir.1994). On February 25, 1994, we stayed the mandate pending a sua sponte call for en banc reconsideration to determine whether our opinion conflicts with Intel Corp. v. Advanced Micro Dev...
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OPINION The Unsecured Creditor’s Committee (the Committee) filed an objection to NSB Film Corporation’s (the Debtor) motion to use cash collateral pursuant to a stipulation entered into with certain secured creditors. The bankruptcy court entered a conditional order approving the Debtor’s motion. The Committee appeals. We DISMISS. STATEMENT OF FACTS On September 24, 1992, an...
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When a person who is the subject of a defamatory report has obtained a copy of the report, but does not know who prepared it, how long can he or she wait to file suit? California law requires the person to file a complaint within one year after he or she knows facts sufficient to state a cause of action for libel. The fact that the defamed person does not know who prepared the report does not chan...
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7 Cal.4th 948 (1994) 873 P.2d 1246 30 Cal. Rptr.2d 651 THE PEOPLE, Plaintiff and Respondent, v. JANET MARIE HOBBS, Defendant and Appellant. Docket No. S023739. Supreme Court of California. June 6, 1994. *954 COUNSEL Curry, Vasquez & Hansen and David W. Vasquez for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Richard B. Iglehart, Chief Assistant Attorn...
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Opinion Pamela W. (Pamela) appeals from entry of summary judgment terminating her suit against her landlords and the condominium association governing the four-unit Pacific Beach complex in which she lived. She asserts the trial court in this case improperly determined the defendants were under no duty to have taken security measures which might have prevented the rapist who assaulted her in he...
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26 F.3d 948 1994-1 Trade Cases P 70,617 HARCOURT BRACE JOVANOVICH LEGAL AND PROFESSIONALPUBLICATIONS, INC., Plaintiff-Appellee,v.MULTISTATE LEGAL STUDIES, INC., Defendant-Appellant.HARCOURT BRACE JOVANOVICH LEGAL AND PROFESSIONALPUBLICATIONS, INC., Plaintiff-Appellee,v.MULTISTATE LEGAL STUDIES, INC., Defendant-Appellant. Nos. 92-56488, 93-55324. United States Court of Appeals,Nint...
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Opinion by Judge CYNTHIA HOLCOMB HALL. The government appeals Karil Mukai’s sentence and the district court’s refusal to allow it to withdraw from its plea agreement. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the questions of law presented in this appeal, see United States v. Fernandez, 960 F.2d 7...
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Opinion by Judge NOONAN. John Rankin Simpson appeals from conviction of being a felon in possession of a firearm. The issue on appeal is whether Nevada, which had convicted him of a felony, had restored the right to have a firearm. We hold that it had not and accordingly affirm his conviction. PROCEEDINGS On March 30, 1984 Simpson pleaded guilty to a state felony charge in Nevada and was ...
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26 F.3d 942 73 A.F.T.R.2d 94-2229, 94-2 USTC P 50,294,29 Fed.R.Serv.3d 191 Analee YORKSHIRE, Plaintiff-Appellee,v.UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellee,v.S & P COMPANY, Intervenor-Appellant.Analee YORKSHIRE, Plaintiff-Appellant,v.UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellee,v.S & P COMPANY, Intervenor-Appellee. Nos. 93-55835, 93-55932. Un...
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OPINION Before: SULLIVAN 1 , RUSSELL and OLLASON, Bankruptcy JJ. The debtors sued First National Bank (“FNB”) alleging that FNB discriminated against them because the debtors are black. The debtors sought damages for violation of their civil rights. The bankruptcy court dismissed the complaint with prejudice based on res judicata principles. The debtors appe...
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OPINION The debtor appeals a money judgment and judgment of nondischargeability for $22,567 in credit card debt. The court determined the debt to be nondischargeable after considering the factors enumerated in the BAP case In re Dougherty, 84 B.R. 653 (9th Cir. BAP 1988). Debtor contends that Dougherty misconstrues 11 U.S.C. § 523(a)(2)(A) 1 basi...
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Opinion Valley View State Bank (Valley View) appeals an order awarding sanctions to Condor Enterprises, Ltd. (Condor) under Code of Civil Procedure section 128.5. Valley View and Condor were, respectively, senior and junior lienholders on a property owned by Santiago Valley I (Santiago). Valley View held a $5.2 million first deed of trust on the property, a mobilehome park, and Condor held a ...
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Opinion A person takes an overdose of a prescription medicine for the purpose of committing suicide. The label warns that the medicine can cause drowsiness. The overdose does not cause death. It renders the person unconscious so that she has no awareness of what she is doing. While in this unconscious state, she drives a car and is arrested and convicted for driving under the influence of an in...
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Opinion Arkady Dashevsky appeals from a money judgment, entered August 7, 1992, after a nonjury trial of respondent Michael C. Moustakas’s claim for payment for legal services rendered. We affirm. *754 I. The Trial Court Did Not Err * II. The trial was recorded on videotape. No court reporter was present. (See Code Civ. Proc., § 270; Cal. Rules of Court, rules 980.5 and 980.6.) Th...
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*759 Opinion In this case we consider whether double jeopardy and Penal Code section 1157 bar retrial of a large quantity enhancement when a defendant is found guilty of possession for sale but the jury is unable to reach a verdict on the enhancement. We conclude that retrial is proper under these circumstances. We modify the judgment to correct a credit miscalculation, and affir...
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Opinion We hold that a joint and several judgment debtor who satisfies the entire debt is entitled to an order of contribution from the other joint debtors under Code of Civil Procedure sections 882 and 883. The paying debtor is entitled to this order free of any offsets the other debtors may have based on unadjudicated claims. This is true even though the underlying obligation arose out ...
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Opinion This is an appeal from an award in favor of contractor Leon Slavin (respondent) and against property owner Joan W. Borinstein (appellant) for contracting costs, fees and profits relating to a residence in Bel Air. Appellant asserts one issue on appeal: that the trial court erred in not finding that an amendment to the original agreement between appellant and respondent dated Augus...
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*724 Opinion This is a companion case to Slavin v. Borinstein, ante, page 713 [30 Cal.Rptr.2d 745]. 1 In this action Leon Slavin (respondent), a building contractor, sued Albert Fink (appellant), an agent of Joan Borinstein (Borinstein), for recovery of construction fees, costs and lost profits relating to a residence being constructed by responde...
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Opinion Introduction John R. Slaught, doing business as J.R. Slaught Construction Co., appeals (Code Civ. Proc., § 1294, subd. (a)) from an order entered on March 17, 1992, denying his petition to compel arbitration and to consolidate arbitration proceedings. Because we find agreements by the parties to participate in such consolidated arbitration, we reverse. Procedural and Fac...
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*1116 Opinion Thomas Wood commenced this action on May 10, 1989. Respondent Riverside County answered and eventually was granted summary judgment predicated upon the failure of Wood to present a claim for damages before filing the action as required by Government Code section 911.2. 1 Wood argues that a “Patient Problem/Complaint Form” submitted to the hospital’s quali...
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Opinion Defendant Alexander Poplawski appeals from a judgment of conviction entered upon the jury’s verdict finding him guilty of driving under the influence of alcohol with three previous convictions (Veh. Code, §§ 23152, subd. (a), 23175—count 1), and the misdemeanor offense of driving with a suspended or revoked license (Veh. Code, § 14601.2, subd. (a)—count 2). The jury also made a true fin...
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Opinion by Judge D.W. NELSON. OVERVIEW Citadel Holding Corporation (“Citadel”) appeals the district court’s grant of summary judgment in favor of Alfred Roven (“Roven”) and American Underwriters, Inc. (“American”) in an action filed by Citadel under § 16(b) of the Securities Exchange Act of 1934 (“the Act”). 15 U.S.C. § 78p(b) (1988). Citadel seeks disgorgement of profits alleged...
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Opinion by Judge NOONAN. Tarek Ghebllawi petitions this court for review of the decision of the Board of Immigration Appeals (the Board) denying him eligibility for asylum in the United States under 8 U.S.C. § 1101(a)(42). We grant the petition and reverse the decision of the Board. FACTS Tarek Ghebllawi was born in Tripoli, Libya on February 26,1956. He is of Arab ethnicity...
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Opinion by Judge RYMER. Sherry Gasaway appeals the district court’s summary judgment in favor of Northwestern Mutual Life Insurance Co. (NML) on its counterclaim for rescission of Gasa-way’s disability insurance policy based on *958 material misrepresentations in her application. See Gasaway v. Northwestern Mut. Life Ins. Co., 820 F.Supp. 1241 (D.Haw.1993). This court has jurisdiction, 28 U...
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Opinion This petition for a writ of mandamus raises the question of whether under the California Rules of Court a complaint transmitted by a facsimile machine to a trial court after the court closes to the public for the day is deemed to have been filed that day or the next day the court is open to the public. Facts On June 29, 1993, at 9:56 p.m., counsel for plaintiff, Denise Lynda Germino...
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*776 Opinion The primary issue in this case is whether Sybil Niden Goldrich’s claims against several breast implant manufacturers are barred by limitations. Based upon undisputed evidence establishing that Mrs. Goldrich experienced excruciating pain, scarring, disfigurement and disability in July 1983, and was advised by three physicians in 1984 to have the implants permanently r...
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Opinion I. Introduction Plaintiff, Harry Jambazian, appeals from a summary judgment in favor of defendant, Joseph Borden, D.P.M., on a complaint for medical malpractice. We conclude plaintiffs failure to present legally admissible opinion testimony to controvert that submitted by defendant warranted summary judgment be granted on the medical negligence and informed consent claims. In so concl...
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Debtor’s counsel appeal from an affir-mance of the bankruptcy court’s award of costs and attorney’s fees to the trustee, arguing that the trustee is not entitled to recover his fees under either sections 105(a) or 362(h) of the Bankruptcy Code. We uphold the decision in favor of the trustee but remand for a determination of the amount of damages to be awarded under section 105(a). FACTS AN...
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*826 Opinion Appellants Chun-Yen Lien and Fong T. Lien appeal from a judgment after a court trial quieting title to real property in favor of respondent Henry G. Moeller. Appellants were bona fide purchasers for value of certain real property at a nonjudicial foreclosure sale. The trial court granted respondent relief from forfeiture pursuant to Civil Code section 3275. It ordere...
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Opinion Marlon Miller appeals from the trial court’s finding that he is a mentally disordered offender. (MDO, see Pen. Code, § 2960 et seq.) He contends: “I. Doctor Weber’s reference to the probation report in concluding appellant’s commitment offense involved force or violence violated the *916 double hearsay rule of Evidence Code section 1201. II. There is no substantial evidence of due cer...
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Opinion Frank Cornelius Thomas was convicted of felony driving under the influence of alcohol with three prior offenses (Veh. Code, §§ 23152, subd. (a), 23175) and driving with knowledge that his license was suspended or revoked (Veh. Code, § 14601.2, subd. (a)). He also admitted having served two prior prison terms within the meaning of Penal Code section 667.5 subdivision (b)). He was s...
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Opinion Plaintiff and appellant Valsan Partners Limited Partnership (Valsan) appeals from the trial court order denying its petition to compel arbitration with defendant and respondent Calcor Space Facility, Inc. (Calcor). It has also appealed the trial court order purporting to enforce the judgment entered in confirmation of one arbitration award and the order entering judgment after con...
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*872 Opinion The City of Irvine, a charter city, brought this action for declaratory relief challenging the validity of a referendum petition submitted by certain Irvine residents and Irvine Citizens Against Overdevelopment (ICAO). The referendum, if approved, would repeal a zoning amendment applying to property within Irvine’s statutory sphere of influence. The trial court enter...
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Opinion Marilyn J. Gram Hanson appeals from an order characterizing her former husband’s enhanced early retirement benefits as separate property. *861Background Marilyn J. and Allen E. Gram were married on May 28, 1960. Allen started work for the San Diego Union-Tribune Newspapers (Union-Tribune) on October 14, 1968, and began accumulating retirement credit in the Copley Press, Inc., retirement pl...
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Opinion by Judge FLETCHER. Barbara Steiner appeals the district court’s grant of summary judgment in favor of defendant-appellee Showboat Operating Company (“Showboat”), her former employer. Steiner’s complaint alleged sexual harassment and retaliation in violation of 42 U.S.C. § 2000e et seq. (“Title VII”), constructive discharge, and intentional infliction of emotional distress. We have jur...
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Opinion By this petition, Masonite Corporation (Masonite) challenges an order of the Mendocino County Superior Court dissolving a temporary restraining order and denying Masonite’s request for a preliminary injunction to prevent public release of claimed trade secret information. 1 The information at issue was supplied to the Mendocino County Air Quality Management District (MC...
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Opinion A police search of Arturo Cesar Molina’s Ford pickup truck uncovered, among other things, usable amounts of cocaine and methamphetamine, a loaded firearm, and a length of copper cable covered in rubber. Molina, accordingly, was charged by information with: count 1: possession of cocaine (Health & Saf. Code, § 11350, subd. (a)); count 2: possession of methamphetamine (Health & Saf....
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Opinion Larry Holland and his daughter Shelley Holland appeal from a judgment on the pleadings rendered in favor of defendant Sterling Casualty Insurance Company (Sterling) after the trial court found that (1) Sterling’s policy of automobile insurance for appellants had been cancelled by the financial institution which supplied the premiums for the policy, and (2) therefore there was no p...
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Opinion I. Gilbert R„ a minor, appeals from a wardship order resulting from a juvenile court determination he committed an assault with a firearm and a finding a principal in the commission of the offense was armed with a handgun. (Pen. Code, §§ 245, subd. (a)(2), 12022, subd. (d).) In the published portion of this opinion, we hold that the minor’s Fourth Amendment search and seizure rights w...
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Opinion This declaratory relief action was filed to determine whether several insurers are obligated to defend and indemnify *905 their insured in three groups of environmental contamination lawsuits. The issue is whether this action can be set for trial before the third party suits are resolved. Our answer is that, on the record before us, we cannot say one way or the other,...
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Opinion Defendant Rodney Beck, pursuant to plea bargain, pleaded guilty to one count of cultivation of marijuana. Thereafter, he moved for return of personal property (firearms), but the court refused to return the property to him, purportedly pursuant to Penal Code section 12028, which declares firearms used in the commission of a crime to be a nuisance and provides for the confiscation ...
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delivered the opinion of the Court. Cigarette consumers in New York are subject to a state tax of 56 cents per pack. Enrolled tribal members who purchase cigarettes on Indian reservations are exempt from this tax, but non-Indians making purchases on reservations must pay it. To prevent non-Indians from escaping the tax, New York has enacted a regulatory scheme that imposes record-keeping r...
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delivered the opinion of the Court. Under § 5(b) of the Longshore and. Harbor Workers’ Compensation Act, 33 U. S. C. § 905(b), a shipowner must exercise ordinary care to maintain the ship and its equipment in a *94 condition so that an expert and experienced stevedore can load and unload cargo with reasonable safety. As a corollary to this duty, the shipowner must warn the ste...
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512 U.S. 136 (1994) IBANEZ v. FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF ACCOUNTANCY No. 93-639. United States Supreme Court. Argued April 19, 1994. Decided June 13, 1994. CERTIORARI TO THE DISTRICT COURT OF APPEAL OF FLORIDA, first district *138 Ginsburg, J., delivered the opinion for a unanimous Court with respect to Part II—B, and the opinion of the Court with respect...
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delivered the opinion of the Court. The issue in this case is whether, in a suit by the Federal Deposit Insurance Corporation (FDIC) as receiver of a feder *81 ally insured bank, it is a federal-law or rather a state-law rule of decision that governs the tort liability of attorneys who provided services to the bank. I American Diversified Savings Bank (ADSB or S&L) i...
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Opinion by Judge SCHROEDER. The issue in this appeal is whether a federal tax lien had attached to the vested retirement benefits of a retired justice of the Alaska Supreme Court. We must decide whether these vested benefits represent property within the meaning of 26 U.S.C. § 6321 to which the tax lien had attached prior to bankruptcy, or whether the benefits should be regarded as “after...
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C. A. 10th Cir. Certiorari granted....
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Opinion by Judge WIGGINS. Plaintiffs below (“Appellants”) sought from the district court an order requiring the cities of Tucson and Phoenix to enlarge their mass transit systems. Specifically, Appellants asserted that Tucson and Phoenix must comply with certain mass transit proposals that Arizona submitted to the EPA in the late 1970s and early 1980s. The district court disagreed with Ap...
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24 F.3d 1070 UNITED STATES of America, Plaintiff-Appellee,v.Daniel James FOWLIE, Defendant-Appellant. No. 91-50383. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 6, 1993.Decided June 13, 1994. William J. Kopeny, James D. Riddet, and Cherif Bassiouni, Santa Ana, CA, for defendant-appellant. Patrick W. McLaughlin and Jonathan S. Shapiro, As...
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*1109 Opinion Derrick Green, also known as Steven Wade, appeals from the judgment entered following a negotiated plea of guilty to possession for sale of a controlled substance (Health & Saf. Code, § 11351) and an admission to having served a prior term of imprisonment within the meaning of Penal Code section 667.5, subdivision (b). He contends: “The trial court committed reversi...
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Opinion In this appeal, we reverse a judgment signed by a supervising judge after the trial judge died without issuing a statement of decision, Code of Civil Procedure section 632 1 requires the trial judge to, at a minimum, issue a statement of decision in order to empower a supervising judge to sign a judgment for an incapacitated trial judge pursuant to section 635. Fa...
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Opinion The City of Costa Mesa (the City) appeals a judgment setting aside its administrative decision to deny Jeffrey Harris a conditional *966 use permit for an accessory apartment. The City contends the trial court ignored the substantial evidence supporting the city council’s discretionary decision and, in the alternative, should have remanded the matter to the council for a new hearing. ...
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Opinion I. Introduction This case squarely presents the issue of the enforceability of a “traditional” surrogacy contract—an issue not addressed in California’s first two surrogacy cases, Johnson v. Calvert (1993) 5 Cal.4th 84 [19 Cal.Rptr.2d 494, 851 P.2d 776] and Adoption of Matthew B. (1991) 232 Cal.App.3d 1239 [284 Cal.Rptr. 18]. By “traditional” surrogacy we mean an arrangement whe...
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Opinion Thomas H. Wilson appeals from denial of severance damages in a condemnation action. I In 1954, the State of California (State) purchased land from Wilson’s parents for construction of the Santa Ana freeway. In 1991, it sought to purchase an additional parcel as part of its widening plan. The parties agreed on a price, but Wilson maintained he was entitled to severance damages as wel...
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*1146 Opinion Petitioner contends the trial court erred in ruling petitioner’s declaration of prejudice filed pursuant to Code of Civil Procedure, section 170.6, was untimely. We agree. Statement of the Case Petitioner filed a wrongful death action in Tulare County arising out of an aircraft accident which occurred on January 20, 1993, in Tulare County. A number of other factually related...
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26 F.3d 105 73 A.F.T.R.2d 94-2266, 94-1 USTC P 50,286 Robert L. DUFRESNE; Carolyn S. Dufresne, Petitioners-Appellants,v.COMMISSIONER, INTERNAL REVENUE SERVICE, Respondent-Appellee.Jerry DIXON; Patricia Dixon, Petitioners-Appellants,v.COMMISSIONER, INTERNAL REVENUE SERVICE, Respondent-Appellee.Richard HONGSERMEIER; Fiorella Hongsermeier, Petitioners-Appellants,v.COMMISSIONER, INTERNAL R...
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*368Opinion by Judge McLAUGHLIN. Special Concurrence by Judge REINHARDT. Kroy (Europe) Limited and Kroy, Inc. (collectively “Kroy”) appeal from the grant of summary judgment in favor of the United States. We have jurisdiction pursuant to 28 U.S.C. § 158(d). We reverse. I Standard of Review The parties stipulated to the facts. We review the grant of summary judgment de novo. Church of Scientology v...
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On December 27, 1988 Robert Usher was injured while working as a longshoreman aboard the M/V Yuhoh (now the M/V “OCEAN WAVE”). On November 12, 1991, two years and eleven months later, Robert Usher and his wife Kristi filed this action in rem against the OCEAN WAVE seeking damages for Robert’s physical injuries and Kristi’s loss of consortium. The district court dismissed both claims ...
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I concur in the judgment. After review, I have found no reversible error or other defect. I write separately, however, because I cannot concur in the majority opinion’s discussion, or lack of discussion, of three troubling issues. The first is defendant’s claim of ineffective assistance under the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitu...
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Opinion Willeta W. appeals from a judgment permanently severing her parental rights as to Daniel and ordering Daniel be placed for adoption. We conclude the juvenile court erred in holding it had no discretion to order continued reunification services beyond the 18-month review under Welfare and Institutions Code section 366.22, subdivision (a) and that such error was prejudicial. Therefore, the j...
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Opinion This appeal involves the “firefighter’s rule” (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394 [22 Cal.Rptr.2d 514]) and the doctrine of primary assumption of the risk (Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]). We conclude the trial court properly entered summary judgment for defendants under both doctrines. A highway patrol traffi...
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*1197 Opinion Does the doctrine of res judicata bar one defendant from seeking equitable indemnity from a second defendant after the plaintiff voluntarily dismisses her complaint with prejudice as to the second defendant? We hold the answer is no. Facts and Proceedings Below Kathleen Young was involved in an automobile accident in the City of Long Beach. She was taken t...
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Opinion Respondents Thomas Incho Hwang and Chung Chon Chang were held to answer by a magistrate for unlawfully taking a portion of a workman’s wages, a felony. (Lab. Code, § 1778.) 1 The superior court subsequently set aside the information and dismissed the case. (Pen. Code, § 995.) The People have appealed the order setting aside the information. There is probable cause ...
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*1186 Opinion Letters written to the editor of a magazine or a newspaper are often like elaborate costume parties. Fact and opinion disguise their identities and pose as one another. Like the invitees at such affairs, the average reader is seldom deceived by the masquerade. Here we consider a letter to the editor of a newspaper. The letter is alleged to be defamatory. The letter contains st...
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Opinion Dominick and Denise Tomaselli (Tomasellis) sued Transamerica Insurance Company (appellant), alleging appellant’s refusal to pay a claim on their homeowners policy was both a breach of contract and in bad faith. The jury awarded contract damages of $260,000, emotional distress damages totaling $500,000, and punitive damages of $11,250,000. Appellant’s claims fall into five basic ca...
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Opinion by Judge O’SCANNLAIN. We must decide whether classroom activities in a California public school district require children to practice the “religion” of witchcraft in violation of the federal Establishment Clause and the California Constitution. I Douglas E. Brown and Katherine E. Brown, parents of two students formerly enrolled in the Woodland Joint Unified School Distri...
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Opinion by Judge T.G. NELSON. OVERVIEW Bobby Lee Hopper (Hopper) appeals his sentence following a plea of guilty to several counts of an indictment charging various federal crimes arising from two robberies of the Stardust Casino in Las Vegas, Nevada. We are asked to decide whether the district court erred in denying his request for an additional one-level offense reduction for acceptance of ...
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27 F.3d 386 In re Frances PIKUSH, Debtor.James L. KENNEDY, Chapter 7 Trustee, Appellee,v.Frances PIKUSH, Appellant. No. 93-56293. United States Court of Appeals,Ninth Circuit. Submitted* June 8, 1994.Decided June 15, 1994. Frederick C. Phillips, Phillips, Campbell, Haskett, Noone & Ingwalson, San Diego, CA, for appellant. Ross G. Simmons, Ferrette & Slater,...
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Opinion Defendant and appellant Philip L. Magno appeals from an order granting a motion for judgment notwithstanding the verdict brought by plaintiffs and respondents Cumie L. Walton and Neda S. Walton after a jury verdict in favor of Magno on the issue of liability. The trial court ordered a trial on the issue of damages. We conclude the appeal is tajken from a *1239 nonappealable order and ...
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Opinion The issue presented by this appeal is whether the trial court erred by failing to award defendant credit for the number of days he spent in custody following his original sentencing, up to the time of his resentencing. The Attorney General concedes the error. Although we agree the court erred, and that defendant is entitled to additional credit, we believe the appropriate means of remed...
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Opinion When officers searched the residence of defendant Carl Edward Menius, Jr., pursuant to a warrant, they found a veritable treasure trove of contraband, paraphernalia, and chemicals used in the manufacture of methamphetamine: sodium hydroxide, red phosphorus, hydriodic acid, methamphetamine sludge, ephedrine, trichlorotrifluroroethane, finished methamphetamine in a substantial quant...
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*1262 Opinion Defendant Monica Lisa Medeiros appeals from an order imposing a second term of probation because she was unable to fully pay restitution during the original maximum term of probation. For the reasons stated below, we shall reverse the order reinstating probation. Factual and Procedural Background Between November 1985 and June 1986, defendant took 13 blank checks from her ...
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Opinion by Judge REINHARDT. I. INTRODUCTION This case involves a civil-rights suit by plaintiff-appellant Frank Cerrato, a white mathematics professor at San Francisco Community College (“SFCC”) who had applied for — and was denied — an appointment to Dean I of Instruction. Cerrato contends that the SFCC district, chancellor, and board 1 illegally discriminated against him...
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25 F.3d 1467 In re ESTATE OF FERDINAND MARCOS, HUMAN RIGHTS LITIGATION.Maximo HILAO, et al., Class Plaintiffs; Vicente Clemente,et al., Class Plaintiffs; Jaime Piopongco, etal., Class Plaintiffs. Plaintiffs-Appellees,v.ESTATE OF Ferdinand MARCOS, Defendant-Appellant. No. 92-15526. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 4, 1993.Decided June 16, 1994...
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Opinion Petitioner Richard Frank Kleefeld, D.C. (defendant), contends a malpractice action against him is barred by the one-year statute of limitations found in Code of Civil Procedure section 340.5 (section 340.5). We agree and issue the peremptory writ he requests. On October 17, 1990, Darline Cunningham died of a ruptured aortic aneurysm. Five days later, her husband, real party i...
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Opinion Civil Code section 43.8 1 provides civil immunity for a person who communicates information “intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts.” In this original proceeding, we hold that section 43.8 bars a malicious prosecution action filed by a psychologist against two indiv...
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*1304 Opinion I Introduction Appellant Leota McNall appeals from a judgment in favor of respondent psychiatrists William K. Summers, M.D., and Ferris N. Pitts, Jr., M.D., in a medical malpractice case. McNall proceeded on two theories: (1) Drs. Summers and Pitts negligently administered electroconvulsive therapy (ECT) causing her to suffer an embolic stroke with a conco...
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delivered the opinion of the Court. A Massachusetts pricing order imposes an assessment on all fluid milk sold by dealers to Massachusetts retailers. About two-thirds of that milk is produced out of State. The entire assessment, however, is distributed to Massachusetts dairy farmers. The question presented is whether the pricing order unconstitutionally discriminates against interstate com...
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Opinion by Judge BOOCHEVER. Workers at Keller Industries’ lawn furniture manufacturing plant in Merced, California brought this action against Keller when the plant was closed and they were given only one day of notice of the closure. The workers claimed that the one-day notice did not satisfy the requirements of the Worker Adjustment and Retraining Notification Act. The district court, o...
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27 F.3d 392 128 Lab.Cas. P 33,103, 2 Wage & Hour Cas.2d(BNA) 129 Neil M. HURLEY, and all other similarly situated employeesof the State of Oregon, Plaintiffs-Appellants,v.STATE OF OREGON; Fred D. Miller, in his individualcapacity; Reginald B. Madsen, in his individualcapacity, Defendants-Appellees. No. 93-35687. United States Court of Appeals,Ninth Circuit. Argued and Su...
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I. Jennifer Turpén and Donald Thomas (Plaintiffs) brought a § 1983 action against the City of Corvallis, alleging the City’s termination without notice of their water service because their landlord failed to pay the water bill violated their right to due process. The parties submitted the case for summary judgment on stipulated facts. The district court held Plaintiffs had no property righ...
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Opinion by Judge T.G. NELSON. I OVERVIEW Hugo Rincon (Rincon) was convicted on two counts of unarmed bank robbery. On Rincon’s first appeal to this court, he contended that the district court erred in refusing to admit expert testimony regarding the reliability of eyewitness identification. We affirmed the district court’s exclusion of that expert testimony in United State...
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26 F.3d 108 74 A.F.T.R.2d 94-5025, 94-1 USTC P 50,291 Anthony L. ASCIUTTO, Annetta Asciutto, Gaetano Bruni, andMary E. Bruni, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.Carl F. BRIM, Ora G. Brim, and Marshall J. Holman,Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.Cecil Z. JANOLO and Marilyn A. Janolo, Petitioners-Appell...
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25 Cal.App.4th 1660 (1994) THE PEOPLE, Plaintiff and Respondent, v. JAMES EARL HOWARD, Defendant and Appellant. Docket No. B072520. Court of Appeals of California, Second District, Division Seven. June 16, 1994. *1661 COUNSEL William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney ...
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Opinion Eligio Monette appeals from the order revoking his probation for possession of a handgun and sentencing him to three years for his conviction for the sale of cocaine. He claims his trial counsel rendered ineffective assistance by failing to object to the prosecution’s violation of the corpus delicti rule and to the admission of his inculpatory statement to his probation officer. W...
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Opinion The City of Modesto (City) appeals from a judgment granting a petition for writ of mandate filed by Kaufman & Broad Central Valley, Inc. (Kaufman & Broad). The writ ordered the City to refund, with interest, development impact fees it had collected from Kaufman & Broad in excess of those in effect when Kaufman & Broad’s vesting tentative subdivision map for its River Te...
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Opinion A jury convicted appellant Timothy Scott Craig on a single count of assault with intent to commit rape, a violation of Penal Code section 220. 1 In a bifurcated proceeding, the same jury found true allegations that appellant had suffered a prior conviction for a serious felony (§ 667, subd. (a)), and that he had served a prior prison term within the meaning of section 667.5, subdivisi...
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27 F.3d 374 63 USLW 2002, 31 Collier Bankr.Cas.2d 877,25 Bankr.Ct.Dec. 1255, Bankr. L. Rep. P 75,966 In re DAYS CALIFORNIA RIVERSIDE LIMITED PARTNERSHIP; DaysCalifornia La Palma Limited Partnership;Chesterfield Century City LimitedPartnership, Debtor.FINANCIAL SECURITY ASSURANCE, INC., Appellant,v.DAYS CALIFORNIA RIVERSIDE LIMITED PARTNERSHIP; DaysCalifornia La Palma Limited Partnership...
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Opinion by Judge HUG. In this case, we are asked to decide whether a trustee’s failure to pay the full amount of a debtor’s rent obligation, under a nonresidential real estate lease, for the period following the order for relief but prior to rejection of the lease, pursuant to 11 U.S.C. § 365(d)(3), gives rise to an administrative claim for the full amount of the rent accrued during that ...
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Opinion by Judge D.W. NELSON. Dr. Vincent Siragusa appeals from the district court’s judgment affirming the bankruptcy court’s dismissal of his complaint based on comity. The bankruptcy court dismissed the action because it already was being litigated in state court. We affirm. FACTUAL AND PROCEDURAL BACKGROUND After 15 years of marriage, Dr. Siragusa and Joanne Siragusa were divorced in 1983. I...
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Jay Johnson has brought a race discrimination complaint against the United States Department of the Treasury and related defendants (collectively, “Treasury Department”) pursuant to 42 U.S.C. § 2000e-16. See Johnson v. United States Dep’t of the Treasury, 939 F.2d 820, 821 (9th Cir.1991). The district court entered summary judgment in favor of the Treasury Department, and Johnson appealed. We a...
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26 F.3d 1479 63 USLW 2012, 128 Lab.Cas. P 33,106,2 Wage & Hour Cas.2d (BNA) 202 PAINTING INDUSTRY OF HAWAII MARKET RECOVERY FUND, Plaintiff-Appellee,v.UNITED STATES DEPARTMENT OF the AIR FORCE, Defendant-Appellant.SEATTLE BUILDING AND CONSTRUCTION TRADES COUNCIL, AFL-CIO;Rebound, Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,Defendant-Appellee.SEATT...
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Opinion by Judge TANG. I. Leroy Gibbs, an African-American, was hired by the General Motors (“GM”) Van Nuys plant in 1957. In 1977, he attained the position of “General Supervisor, Maintenance,” at Salary Level 7. In 1980, Gibbs’ department was reorganized; Gibbs was given responsibility over housekeeping, rather than other types of maintenance, though he retained the same job classi...
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Opinion by Judge TROTT. Roger Hines appeals the sentence imposed by the district court following his guilty pleas to making threats against the President, in violation of 18 U.S.C. § 871, and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He argues the district court erred in applying the Sentencing Guidelines by: (1) imposing a six-level enhancement for “condu...
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Opinion by Chief Judge WALLACE. Ullyses-Salazar challenges his sentence of 70 months’ imprisonment following his guilty plea to being present in the United States after a prior deportation, in violation of 8 U.S.C. § 1826(a), (b)(1), and (b)(2). The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal of the sentence under 18 U.S.C. § ...
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Opinion by Judge Orrick. Defendant, Michael Valentine Rosi, was found guilty by a jury of transporting stolen property interstate in violation of 18 U.S.C. § 2814. He appeals claiming the district court erred in denying (1) his motion to suppress evidence obtained in a warrantless entry and search allegedly in violation of his Fourth Amendment rights, and (2) his motion to dismiss the indictmen...
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Opinion PSC Geothermal Services Company (PGS) and Ormesa Operators are being investigated by the Imperial County District Attorney (District Attorney) and the Department of Toxic Substance Control for the alleged improper disposal of geothermal filters at a local landfill. Petitioners’ attorneys engaged the services of Environ and Analytical Technologies Inc. *1701 (ATI), env...
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27 F.3d 426 1994 A.M.C. 2587 Robert DAVIS Sr., Personal Representative of the Estate ofRobert Davis Jr.; Janice Schneider, Personal Representativeof the Estate of Matthew Schneider; and John Bauer,Personal Representative of the Estate of John Dieterich,Plaintiffs-Appellants,v.BENDER SHIPBUILDING AND REPAIR CO., INC., Defendant-Appellee. No. 92-36826. United States Court of Appeal...
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Opinion by Judge REINHARDT. I. INTRODUCTION The Secretary of Health and Human Services (“Secretary”) appeals the district court’s holding that Gerald Hodge (“Hodge”) was not required to offset a state lump-sum disability award (“lump-sum award”) against his federal social security benefits. We reverse. Under 42 U.S.C. § 424a(a)(2), Hodge must offset his lump-sum award for the months during wh...
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I. On the basis of circumstantial evidence offered through the testimony of a paid informer, Earl was convicted of possession of cocaine with intent to distribute and sentenced to 24 years imprisonment. The government relied on the doctrine of “constructive possession” to show that Earl had dominion and control over the drugs. On appeal, Earl argues that the evidence was insufficient for a “r...
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Opinion by Judge HUG; Dissent by Judge KOZINSKI. We granted rehearing en banc in United States v. Gaudin, 997 F.2d 1267 (9th Cir.), rehearing granted, 5 F.3d 374 (1993), to de *944 cide whether the element of materiality in 18 U.S.C. § 1001 is a question of fact that must be determined by the jury. We hold that it is. Michael E. Gaudin was convicted...
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Opinion by Judge TANG. Curtis White (“White”), a licensed firearms dealer, appeals the forfeiture of ninety-five firearms seized by the Alcohol, Tobacco & Firearms Service (“ATF”). The seizure and forfeiture resulted from White’s failure to maintain and retain firearms records. White argues that the statute and the regulation that required him to maintain and retain the records, 18 U.S.C....
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Opinion by Judge FARRIS. Ronald Walker appeals his sentence for illegally possessing firearms in violation of 26 U.S.C. §§ 5861(d), 5861(i). We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm. I. FACTS Walker was charged with ten counts of illegally possessing firearms. He pled guilty to Counts 1 and 10. Count 1 charged that on or about March 17, 1993, Walker ...
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*1688 Opinion The question presented in this appeal is whether Code of Civil Procedure section 1021.5 authorizes an award of attorney fees to a party who prevails at an administrative hearing and thereby resolves a dispute without resorting to a lawsuit. The plaintiff in this case filed an independent action for attorney fees under this statute after it had prevailed in an admini...
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Opinion This appeal revisits the dispute between Dominick and Denise Tomaselli (Tomasellis) and Transamerica Insurance Company. The dispositive issue is whether an insured, after suing his insurer for failure to pay a claim and recovering a judgment, may again sue if the insurer does not immediately pay the judgment. The trial court concluded such a cause of action could not be asserted. ...
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Opinion by Judge RYMER. This appeal turns on the construction and interpretation of local law by the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI). We must decide whether the CNMI Supreme Court violated Isidro Lizama’s due process rights by upholding Regulation 8301, a CNMI Revenue and Taxation Regulation giving customs officials the authority to conduct airport...
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In this tax refund case the Internal Revenue Service (IRS) asks us to reverse the district court’s grant of attorney fees incurred by a pro se plaintiff prior to the preparation and filing of the instant complaint. The taxpayer,, pro se, asks us to reverse the district court’s denial of his request for attorney fees under 26 U.S.C. § 7430 (1988) (“I.R.C. § 7430” or “§ 7430”). We affirm in par...
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Opinion by Judge KOZINSKI. These cases return to us following our remand in United States v. Redondo-Lemos, 955 F.2d 1296 (9th Cir.1992) (Redondo-Lemos I). In that appeal, we reviewed a district judge’s finding that the Office of the United States Attorney for the District of Arizona was committing equal protection violations by treating male drug carriers more harshly in plea bargaining th...
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Opinion Plaintiffs and appellants Curtis and Tammy Cantwell appeal a judgment dismissing their premises liability action for personal injury and loss of consortium against defendant and respondent Peppermill, Inc., after respondent’s demurrer was sustained without leave to amend on the ground that appellants’ first amended complaint was barred by Business and Professions Code section 25602. (He...
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Opinion I Factual and Procedural Background Edward Goodman, founder of Goodman Lumber Company (GLC), died on September 2, 1990. Edward left most of his approximately $ 100-million-value estate to his two daughters, Joan Zimmerman and Gloria Clumeck. 1 Edward left his son, Charles Goodman, one-third of an antique automobile collection, a bequest valued at approximately...
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Opinion Defendant and appellant San Francisco Bay Conservation and Development Commission (BCDC) appeals a judgment enjoining it from initiating enforcement proceedings based on its contention that plaintiff and respondent San Mateo County Harbor District’s (the District) policy concerning live-aboard vessels violates the McAteer-Petris Act (the Act) (Gov. Code, § 66600 et seq.; unless otherwise ...
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Opinion The case before us presents the question of whether workers’ compensation benefits may be denied because a worker who has died from a stroke contributed to his underlying hypertension through a lack of diligence in procuring medical treatment. Petitioner Janet Thompson is the widow of the decedent Jack Thompson. Thompson suffered a stroke and died at the age of 45. He had bee...
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Opinion Statement of Facts This appeal is from an order after judgment awarding attorney fees and costs to defendant Stanley Folb (Folb) and against plaintiff Garfield Bank (Garfield). The underlying case was tried before Judge Alfred L. Margolis, judge of the superior court (retired), sitting on stipulation of both parties. In its second amended complaint, the operative complai...
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Opinion Plaintiff Edward Royce Stolz II, transacting business as Royce International Broadcasting Station KWOD-FM, appeals from summary judgment entered in favor of defendants Wong Communication Limited Partnership, Kin Shaw Wong, and Fay Gum Wong (the Wong defendants), in plaintiffs action for malicious prosecution, abuse of process, and interference with economic relations. Plaintiff co...
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Opinion by Judge POOLE. Appellants (“the Cristobals”) challenge an order of the District Court of Guam Appellate Division (“Appellate Division”) affirming the grant of summary judgment by the Superior Court of Guam (“Guam Superior Court”) in favor of Appellees Jeffrey Siegel, Francis Gill, Brian Hanohano, and Coral Pit, Inc. (“Coral Pit”). Coral Pit filed a motion for summary judgment in ...
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George William Nulph, an Oregon state prisoner, appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254. Nulph claims that the Oregon State Board of Parole violated the Ex Post Facto Clause when it set his release date in accordance with statutes and regulations adopted after the date of his offense. Because the Board retrospectively applied a statute which si...
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29 F.3d 481 UNITED STATES of America, Plaintiff-Appellee,andThe Confederated Tribes of the Warm Springs Reservation ofOregon; Confederated Tribes of the Yakima Indian Nation;Confederated Tribes of the Umatilla Indian Reservation; NezPerce Tribe; and the Shoshone-Bannock Tribes,Plaintiffs-Intervenors-Appellees,v.STATE OF OREGON; State of Washington, Defendants,v.CONFEDERATED TRIBES OF the C...
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27 F.3d 1385 65 Fair Empl.Prac.Cas. (BNA) 465 Robert L. VERNON, Plaintiff-Appellant,v.CITY OF LOS ANGELES; Los Angeles City Council; Board ofPolice Commissioners of the City of Los Angeles; ZevYaroslavsky, individually and as Los Angeles CityCouncilman; Stanley Sheinbaum, individually and asCommissioner Board of Police Commissioners; Jesse Brewer,et al., Defendants-Appellees. No. ...
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Opinion - Lou V. Hughes appeals a postdissolution order on an order to show cause granting Carolyn Hughes’s requested relief. I Lou’s and Carolyn’s marriage ended in 1987. The judgment of dissolution determined their custody and visitation rights; all other issues were reserved. In 1993, a stipulated judgment upon further reserved issues was entered. It determined the parties’ property ri...
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*23 Opinion I Procedural Background The case against defendants Anthony Watkins (Watkins) and Marvin Patrick Munford (Munford) was given to the jury on the following charges: Count Defendants) Offense Sentence Enhancement Allegation(s) I Watkins Munford First degree residential robbery of Sharon Parr (Parr) (Pen. Code, § 211; see § 212.5, subd. (a)) Watkin...
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delivered the opinion of the Court. Although Medicare reimburses provider hospitals for the costs of certain educational activities, the program is forbidden by regulation from “participating] in increased costs resulting from redistribution of costs from educational institutions ... to patient care institutions.” 42 CFR § 413.85(c) (1993) (emphasis added). In denying...
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27 F.3d 1415 40 Fed. R. Evid. Serv. 1313 Duncan Peder McKENZIE, Jr., Petitioner-Appellant,v.Jack McCORMICK, Warden, Montana State Prison, Respondent-Appellee. No. 93-35142. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 1, 1994.Decided June 24, 1994. Timothy K. Ford, MacDonald, Hoague & Bayless, Seattle, WA, Gregory A. Jackson, Jackson &...
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Opinion by Judge LEAVY. In 1983, the appellant John Rambo (“Rambo”) was awarded $80.16 per week in worker’s compensation for a permanent partial disability to his back and leg. Rambo subsequently attended crane school and obtained a position as a crane operator. In 1990, Rambo’s employer, Metropolitan Stevedore Company (“Metropolitan”) moved to have his benefits terminated. Despite the fa...
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Opinion - Plaintiff and appellant Robert Barouh brought this action against defendant and respondent Morton Haberman for battery and negligent personal injury. The action was tried to a jury, which found by special verdict that defendant was not negligent (12-0) and that defendant did not commit battery (9-3). Plaintiff appeals from the judgment on the jury verdict, contending the evidenc...
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Opinion — Marie Berlin appeals after the superior court denied her mandamus petition to set aside a Department of Social Services (DSS) administrative decision reducing her grant for Aid to Families with Dependent Children (AFDC). (Code Civ. Proc., § 1094.5; Welf. & Inst. Code, § 10963.) 1 Appellant receives AFDC benefits and operates a custom T-shirt business out of her home. ...
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Opinion — In this case we interpret the language of Code of Civil Procedure section 668.5 to determine whether the date of entry of a judgment in Los Angeles Superior Court, which maintains a register of actions rather than a judgment book, is dependent upon whether the judgment is entered in the register of actions prior to being placed in the court file. *63 By way of back...
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Opinion Introduction These are cross-appeals from a $1,430,937 judgment for negligence and breach of fiduciary duty, awarded to Steve Moallem, as assignee of his *1829 corporations Midland Warehouse and Distribution, Inc., and Transmotor Express, Inc. (collectively Midland), against their real estate agents, Cold-well Banker Commercial Group, Inc., and Kent Williams (col...
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26 Cal.App.4th 78 (1994) 31 Cal. Rptr.2d 475 THE PEOPLE, Plaintiff and Respondent, v. LEOPOLDO CEJA, Defendant and Appellant. Docket No. B076169. Court of Appeals of California, Second District, Division Seven. June 23, 1994. *81 COUNSEL Martin Nebrida Buchanan, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Ass...
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The well crafted opinion of the majority has persuaded me that Mr. Ma did not have the right *1855to insist upon having counsel present at the proposed meeting with TRW’s security department. There is insufficient evidence to support the trial court’s finding that the interrogation would have been sufficiently custodial so as to trigger Mr. Ma’s Fifth Amendment right to counsel. Ma’s subjective fe...
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10 Cal.4th 578 (1995) 896 P.2d 171 41 Cal. Rptr.2d 878 ABRAHAM LEVY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOSEPH H. GOLANT, Real Party in Interest. Docket No. S035538. Supreme Court of California. June 22, 1995. *579 COUNSEL Greenberg, Glusker, Fields, Claman & Machtinger, Michael K. Collins, Harvey R. Friedman and Patricia A. Millett for Petitioner. No appeara...
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Opinion — In this case, we are asked to determine the propriety of imposing sanctions on a petition for writ of mandate and request for stay. Sanctions are warranted where counsel omits critical facts intending to create a sense of emergency solely for delay. Because, however, we believe the omissions here were unintended, a product of time pressures combined with short-sighted advocacy, ...
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*690 Opinion James S. appeals from an order terminating his parental rights (Civ. Code, 1 § 232) to his son Curtis S. Curtis’s maternal grandparents (Kenneth A. and Carol A.) petitioned for the termination approximately one year following the death of their daughter and Curtis’s mother, Kelly S. 2 The grandparents sought Curtis’s freedom from James’s custody and control on grounds he had ...
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Opinion by Judge KOZINSKI. Burks and Celestine were convicted of murdering a fellow prison inmate and sentenced to life without parole. Having exhausted state remedies, they brought a federal habeas petition raising three issues: first, that the State violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), by exercising peremptory strikes against three Blacks and two H...
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Opinion by Judge REINHARDT; Partial Concurrences and Partial Dissents by Judges NORRIS and TROTT. On appeal, Thane Carl Chew seeks the right to pursue his claims for damages resulting from dog bites inflicted on him by a police dog the Los Angeles Police Department uses to capture suspected criminals. Chew brought his action in federal district court pursuant to 42 U.S.C. section 1983. He sued th...
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Opinion by Judge CANBY. ORDER The petition of appellees for rehearing is granted. The case is re-decided on the petition for rehearing, the response thereto, and the briefs and record previously filed in this court. The opinion of this court reported at 3 F.3d 306 is hereby withdrawn, and the attached opinion is hereby adopted. OPINION In this ease, we must decide whether bid-rigging and antitrus...
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26 F.3d 1496 39 Fed. R. Evid. Serv. 972 UNITED STATES of America, Plaintiff-Appellee,v.David Peter MARSH, Defendant-Appellant. No. 92-10504. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1993.Decided June 27, 1994. Diane Marie Amann, San Francisco, CA, for defendant-appellant. Rory K. Little, Asst. U.S. Atty., San Francisco, CA, for...
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We must decide whether an offender being sentenced as an armed career criminal can *89 challenge his previous state convictions at the federal sentencing hearing. 1 James Scott Daly argues that the district court erred in relying on three previous state convictions when it sentenced him under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e). The ACCA provides for the enhan...
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Opinion James H. DeRoche, a San Francisco resident, filed a complaint against Commodore Cruise Line, Ltd. (Commodore) and International Marketing Systems, Inc. (IMS). He appeals from the judgment entered upon the order sustaining the demurrer of each defendant to the complaint without leave to amend, and from the order denying his subsequent motion for reconsideration. We will affirm. ...
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Opinion — We uphold an injunction under the McAteer-Petris Act (Gov. Code, § 66600 et seq.; the Act) 1 against the offshore mooring of certain vessels in Richardson Bay as constituting “fill” for which permits from the San Francisco Bay Conservation and Development Commission (BCDC) are required under section 66632, subdivision (a) of the Act. We also reverse the denial of reli...
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Opinion — Plaintiffs/appellants the Gitano Group, Inc., et al., (appellants), 1 appeal from the judgment entered upon the granting of the motion for summary adjudication of issues made by defendants/respondents the Kemper Group et al., (respondents). 2 Appellant had sued respondents and others for, inter alla, breach of contract in that respondents refused to indemni...
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Opinion by Judge BOOCHEVER. Petitioner-appellant, Ashley Greenwood, challenges the suspension and nonrenewal of his designation as a pilot examiner by the Federal Aviation Administration (“FAA”). The only issues properly raised are claimed due process violations, and we find that Greenwood’s procedural due process rights were not violated. Accordingly, we affirm. BACKGROUND ...
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27 F.3d 1475 R.W. BECK & ASSOC., et al., Plaintiffs,v.CITY AND BOROUGH OF SITKA, Defendant,andPROVIDENCE WASHINGTON INSURANCE COMPANY, Defendant-Appellant,v.WESTERN WORLD INSURANCE COMPANY, Defendant-Appellee.ADMIRAL INSURANCE COMPANY, et al., Plaintiffs-Appellees,v.ESTATE OF McKinley NICHOLAS, et al., Defendants.R.W. BECK & ASSOC., et al., Plaintiffs,v.CITY AND BOROUGH OF SITKA, Defen...
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OPINION An art gallery entered into a five year lease agreement with a shopping center. Within ninety days of the art gallery’s bankruptcy petition, the gallery and the shopping center entered into a termination of lease agreement with the gallery transferring about $38,000 to the shopping center. Post-petition, the art gallery, as debtor in possession, sought to avoid the $38,000 tra...
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7 Cal.4th 1027 (1994) 874 P.2d 903 31 Cal. Rptr.2d 128 THE PEOPLE, Plaintiff and Respondent, v. ROSARIO MONTOYA, Defendant and Appellant. Docket No. S030181. Supreme Court of California. June 27, 1994. *1031 COUNSEL Colin J. Heran, under appointment by the Supreme Court, and Mark E. Cutler for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorne...
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Opinion — Plaintiffs/appellants Antonia Leon Roman; Andres Leon, by and through his guardian ad litem Antonia Leon Roman; Maria del *179 Rosario Leon, by and through her guardian ad litem Antonia Leon Roman; et al. (collectively as appellants) appeal from the judgment entered against them upon the granting of the motion for summary judgment of defendants/ respondents Unigard ...
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*197 Opinion — Laurie S. petitions for a writ of mandate after the court ordered her to submit to a psychological evaluation before the jurisdictional hearing in this dependency proceeding concerning her infant daughter Ciebrianna G. Laurie contends the court lacks authority to order her to undergo a psychological evaluation before a finding of jurisdiction and the order violates her privacy ...
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Opinion — An amended information charged appellant Royce Randall Finley with one count of attempted indecent exposure in a public place, in violation of Penal Code 1 sections 664 and 314, subdivision 1, “a felony.” The information further alleged that appellant had several prior convictions for violations of section 314, subdivision 1, and that he had served prior prison terms therefor. Appel...
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Opinion — Plaintiffs 1 file this petition for extraordinary relief from an order precluding them from using their expert witness and from presenting certain evidence. We find merit in the petition and will issue a peremptory writ to vacate the challenged order. Facts In this wrongful death action, petitioners assert a product liability cause of action against real par...
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In this ease, we must decide a difficult question: under California law, at what point does a cause of action accrue, and what is the appropriate limitations period, for a medical malpractice action brought by a minor infected "with the HIV virus? Factual and Procedural Background In December 1983, at the age of four years and three months, the appellant in this case, known as minor “S.S.” (“Appel...
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Opinion by Judge POOLE. The United States appeals the district court’s grant of defendant Anthony M. Ramos’ motion to suppress evidence obtained in an inventory search of his automobile conducted after he was arrested for allegedly committing reckless driving. An Arizona peace officer had observed him make an abrupt lane change on an interstate highway while traveling at an estimated speed of b...
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Opinion — Foxborough, a general partnership, appeals after the trial court found that the statute of limitations, Code of Civil Procedure section 340.6, barred Foxborough’s legal malpractice action. 1 Foxborough had sued its former attorney, respondent David Van Atta, alleging that he failed to protect Foxborough’s interests in a condominium development transaction. 2 ...
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*241 Opinion In this case we hold an order certifying a class action should only be made upon proper notice and subject to the right of an opposing party to submit evidence in opposition. This is true whether the issue arises on the motion of a party or on the court’s own motion. This purported class action arises out of the sale of precious metal investment contracts by Car...
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Opinion — Defendant, Cesar Trejo, appeals his felony conviction after a Penal Code section 1538.5 suppression of evidence motion was denied. Because the motion was properly denied, other than modifying the amount of presentence credits, we affirm the judgment. 1 When the appropriate standard of review is applied (People v. Leyba (1981) 29 Cal.3d 591, 596-597 [174 Cal.Rptr. 867, 629 P.2d...
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Opinion — John Anthony Higgins and Melissa Jill Ayotte pleaded guilty to various narcotics offenses after the trial court denied their Penal Code section 1538.5 motions. We find the motions were properly denied and affirm the judgments. I Around 11 o’clock one evening, Officer Green responded to an anonymous report of a domestic disturbance involving “a man shoving a woman around.” Green me...
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Opinion — Plaintiff initiated an eminent domain action to acquire a portion of defendants’ parcel (hereafter the take) for street, sewer and utilities purposes. The trial court granted plaintiffs in limine motion to exclude all evidence of severance damages. After a contested court trial on the value of the take, the court found that the take was worth $22,000. Although defenda...
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512 U.S. 821 (1994) INTERNATIONAL UNION, UNITED MINE WORKERS OF AMERICA, et al. v. BAGWELL et al. No. 92-1625. United States Supreme Court. Argued November 29, 1993. Decided June 30, 1994. CERTIORARI TO THE SUPREME COURT OF VIRGINIA *823 Blackmun, J., delivered the opinion for a unanimous Court with respect to Parts I, II—A, II—C, and III, and the opinion of the Court with respect to Part II—B, i...
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delivered the opinion of the Court. Petitioners challenge the constitutionality of an injunction entered by a Florida state court which prohibits antiabortion protesters from demonstrating in certain places and in various ways outside of a health clinic that performs abortions. We hold that the establishment of a 36-foot buffer zone on a public street from which demonstrators are excluded passes m...
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512 U.S. 849 (1994) McFARLAND v. SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION No. 93-6497. United States Supreme Court. Argued March 29, 1994. Decided June 30, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *850 Blackmun, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, and Ginsburg, JJ., joined. O'Connor, J....
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Opinion by Judge BRUNETTI. Defendant Edward Larry Turner (“Turner”) appeals his jury convictions for (1) postal robbery in violation of 18 U.S.C. 1 § 2114; (2) five counts of altering money orders in violation of § 500; (3) three counts of passing altered money orders in violation of § 500; (4) possession of stolen property in violation of § 641; (5) two counts of money laundering in violatio...
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Opinion — This case concerns the constitutionality of the protest provisions regarding municipal and county service area reorganizations and annexations contained in the Cortese-Knox Local Government Reorganization Act of 1985 (the Act), Government Code section 56000 et seq. 1 Broadmoor Police Protection District (Broadmoor) appeals from a judgment on the pleadings entered in favor of respond...
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26 Cal.App.4th 400 (1994) 31 Cal. Rptr.2d 543 THE PEOPLE, Plaintiff and Appellant, v. PKS, INC., et al., Defendants and Respondents. Docket No. A061437. Court of Appeals of California, First District, Division Four. June 29, 1994. *402 COUNSEL Arlo Smith, District Attorney, and David C. Moon, Assistant District Attorney, for Plaintiff and Appellant. Peter Koehler, in pro. per., for Defendants and...
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Opinion — In this case a judgment creditor sought an order directing the trustee of a trust to withhold sums otherwise distributable to the judgment debtor and to pay those sums to it in satisfaction of the judgment. Under the trust instrument the judgment debtor was entitled to all income from the trust for life with the power to invade principal as necessary for his support, health and ...
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Opinion — In this appeal we are asked to decide whether a supporting spouse must continue to pay a supported spouse’s medical insurance premium after the supported spouse’s death, pursuant to a marital settlement agreement which limits the parties’ right to modify its terms. We answer the question in the negative and reverse the order of the trial court which denied reimbursement of amoun...
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Opinion — Theodore Demblewski appeals an order characterizing the former family residénce as community property and awarding it to his ex-wife Eleanor, and continuing jurisdiction over two pieces of real property located in New York. He contends the court failed to set forth adequate factual or legal bases for its determination, and reversal is required. We agree. Theodore and Eleanor Demblew...
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Opinion — A jury convicted Marquibe Lonnell Brooks of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), threatening to commit a crime which would result in great bodily injury (Pen. Code, § 422), and dissuading a witness (Pen. Code, § 136.1, subd. (c)(2)). As to the first two offenses, the jury further found that Brooks committed them for the benefit of a street gang. (Pen. C...
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Opinion — Richard V. appeals after the court severed his parental rights and ordered his dependent twin sons, Raymond R. and Rudy R., be *438placed for adoption. (Welf. & Inst. Code,1 § 366.26, subd. (b)(1).) Richard contends the San Diego County Department of Social Services (the Department) did not make a sufficient effort to locate him, thus the reunification services provided him were insuffi...
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Opinion — Feridoun Rezai appeals the judgment entered against him on his causes of action against the City of Tustin and for him on his breach of contract cause of action against Orange Coast Title Company, contending the trial court erred by: (1) granting Tustin judgment on the pleadings; and (2) limiting damages in the judgment against Orange Coast to $102. We affirm. In March 1989 after a ...
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Opinion — Thomas Zapara appeals a judgment against him in favor of the County of Orange in his action for refund of property taxes. The sole issue raised on appeal is whether the transfer of title to real property by a partnership to a general partner, who by virtue of having purchased all minority partnership interests has become the sole partner and sole owner of the partnership and its...
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Opinion — Defendant Andre Ceniceros appeals from conviction by jury trial of first degree murder and attempted murder, contending, inter alla, that the trial court's action in ordering defense witnesses shackled during their testimony denied defendant his constitutionally guaranteed “presumption of innocence” and precluded the jury from fairly evaluating the shackled witnesses’ credibilit...
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Opinion — A jury convicted appellant Lonnie Dale Haney of three counts of burglary (Pen. Code, § 459), two of first degree and one of second degree. During trial, the court conducted a hearing pursuant to Evidence Code section 402 to determine the admissibility of appellant’s confessions to police officers. The trial court ruled the confessions were admissible. After the jury verdicts were rend...
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Opinion by Judge CHOY; Dissent by Judge REINHARDT. I. FACTUAL AND PROCEDURAL BACKGROUND Omar Jahal Daggao (a.k.a. Omar Jahal Ali-Daggao) was charged with committing three armed bank robberies, and was arrested on August 27, 1992. He was held in custody until September 9, 1992, when he appeared before a United States magistrate for a bail hearing. The magistrate released Daggao on a $100,000 proper...
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7 Cal. 4th 1057 (1994) 875 P.2d 73 31 Cal. Rptr. 2d 358 JANET C. MANGINI, Plaintiff and Appellant, v. R.J. REYNOLDS TOBACCO COMPANY et al., Defendants and Respondents. Docket No. S034603. Supreme Court of California. June 30, 1994. *1059 COUNSEL Milberg, Weiss, Bershad, Specthrie & Lerach, Milberg, Weiss, Bershad, Hynes & Lerach, William S. Lerach, Leonard B. Simon, Eric A. Isaacson, Alan...
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7 Cal.4th 1075 (1994) 875 P.2d 36 31 Cal. Rptr.2d 321 THE PEOPLE, Plaintiff and Respondent, v. KEITH TYRONE FUDGE, Defendant and Appellant. Docket No. S004790. Crim. No. 26424. Supreme Court of California. June 30, 1994. *1086 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, and Monica Knox, Deputy State Public Defender, for Defendant and Appellant. *1087 Da...
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Opinion On December 19, 1985, defendant Jeffrey T. Sheldon was convicted of first degree murder with special circumstances and sentenced to death. On May 15, 1989, we affirmed defendant’s guilt conviction in most respects (reversing only his conviction for assault with a deadly weapon), but vacated the judgment of death and remanded to the trial court for redetermination of defendant’s application...
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Opinion Introduction Defendant Michael Kenneth Andersen appeals from a judgment of conviction entered after a jury trial. The jury found him guilty of four counts of gross vehicular manslaughter (Pen. Code, § 191.5, subd. (a)) and one count of causing injury while driving under the influence of alcohol or drugs (Veh. Code, § 23153, subd. (a)). The jury also found true the allegation that defe...
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Opinion — Appellants, Ojavan Investors, Inc., and several other real estate investment corporations, appeal judgments of dismissal entered after the trial court sustained demurrers of respondent California Coastal Commission (the Commission), without leave to amend, as to appellants’ petition for a writ of mandate and appellants’ concurrently filed complaint for *520 declaratory relief and da...
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Opinion Introduction Korea First Bank (KFB) obtained a summary adjudication permitting it to obtain a judicial foreclosure and deficiency judgment against petitioners Dong Suk Shin, Byung Kook Cheon, and Jung Soon Cheon. Petitioners then applied to this court seeking a writ of mandate to vacate that ruling on the ground that KFB had violated the “one form of action” provision of Code...
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*588 Opinion Introduction “Fair trials,” wrote Hugo Black, “are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.” (In re Murchison (1955) 349 U.S. 133, 137 [99 L.Ed. 942, 947, 75 S.Ct. 623].) One does not need to go to law school to know, as Black wrote in the same opinion, that “. . . no man can be a judge in his own case.” (...
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Opinion — The trustees of an inter vivas trust appeal from an order determining that the plaintiff beneficiary had not violated the trust’s “no contest” clause by filing the underlying petition. Because we hold the trustees do not have standing to appeal the order, we dismiss the appeal. I Paul and Marie Esslinger established an inter vivas trust in 1976 known as the Esslinger F...
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Opinion — In deciding this case, we are compelled to interpret Government Code 1 section 65961, which limits the power of a city or county to base its issuance of building (or equivalent) permits for a residential subdivision upon conditions it could have “lawfully imposed” on a previously approved tentative map. In particular, we are asked to decide whether section 65961 permi...
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The Estate of Walter F. Klosterman, deceased, elected to use the formula prescribed by 26 U.S.C. § 2032A(e)(7)(A) to value farmland for estate tax purposes. This section permits a taxpayer to value farmland by dividing the excess of the “average annual gross cash rental” received for comparable land over the “State and local real estate taxes” imposed upon such land, by the applicable Federal L...
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Delbert and Ethel Barnes (Creditors) appeal the district court’s order affirming the bankruptcy court’s confirmation of the Chapter 13 Plan of Reorganization of Lance C. and Virginia R. Barnes (Debtors). The Creditors argue that the plan’s failure to comply with 11 U.S.C. §§ 1325(a)(5)(B)(ii) and 1322(c) required the bankruptcy court to deny confirmation. We agree and we reverse. FACTS The De...
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Steven D. Robertson sued Burlington Northern Railroad Company under the Federal Employers’ Liability Act (FELA). He alleged he sustained a hearing loss and tinnitus (ringing in the ears) because during his employment Burlington Northern exposed him to excessive noise. Trial was before a jury. The court admitted evidence of noise standards established by the Occupational Safety and Health Act (O...
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32 F.3d 1346 39 ERC 1025, 24 Envtl. L. Rep. 21,264 SALMON RIVER CONCERNED CITIZENS, et al.; CaliforniaCoalition for Alternatives To Pesticides; Safe Alternativesfor our Forest Environment, Inc.; Northcoast EnvironmentalCenter, Inc., Plaintiffs-Appellants,v.Dale ROBERTSON, Chief Forester, United States ForestService, et al.; Department of Agriculture,Defendants-Appellees. No. 92-161...
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32 F.3d 1337 18 Employee Benefits Cas. 1513 Gerald E. WALLER; Robert C. Bryson; Harold Kurofsky;James E. Fenningham; Elizabeth Montgomery; Walter Boge, onBehalf of Themselves and All Others Similarly Situated andDerivatively on Behalf of the Former Non-ContributoryRetirement Program for Certain Employees of Blue Cross ofCalifornia, Plaintiffs-Appellants,v.BLUE CROSS OF CALIFORNIA, Blue...
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*617Opinion — Appellant Laura C. appeals a juvenile court order establishing a legal guardianship for her daughter Nina P. Although she raises other issues, appellant’s chief contention is that the court erred in changing the permanent plan from long-term foster care to guardianship without the filing of a petition for modification pursuant to Welfare and Institutions Code section 388.1 As we shal...
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Opinion — Appellant Sandra W. timely appeals from an order of the juvenile court sustaining a supplemental petition filed by respondent Contra Costa Social Service Department (the department) as to her granddaughters, Delleisha H. and Jonique W. The minors were originally declared dependents of the juvenile court after they were abandoned by their mother, appellant’s daughter, in May 1990...
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*154 Opinion I. Introduction Surfrider Foundation appeals from a judgment denying a petition for a writ of mandate, challenging the California Coastal Commission’s (Commission) approval of applications by the California Department of Parks and Recreation (Department) for permits to install devices for the collection of parking fees at 16 state park beaches. Surfrider contends the Commission...
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Opinion — Here we hold that the trial court did not have to advise the jury of its power to nullify a verdict and that the court correctly instructed that false imprisonment is a general intent crime. Jose Pablo Fernandez appeals from a judgment following a jury’s convicting him of felony false imprisonment by violence (Pen. Code, 1 §§ 236, 237) and battery with serious bo...
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*723 Opinion Factual and Procedural Background Paul Burtscher and his wife, Magdalena, entered into a written agreement which, among other things, gave Magdalena “unrestricted use of [the] home located at 2190 [Alessandro] Trail, Vista, California, for a period of 5 years” effective January 8, 1992. Magdalena started living in the home in January 1992, and she and Paul were ...
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26 Cal.App.4th 568 (1994) 31 Cal. Rptr.2d 595 DONNA SHAVER, Individually and as Trustee, etc., Plaintiff and Appellant, v. ROBERT A. CLANTON et al., Defendants and Appellants. Docket No. G013816. Court of Appeals of California, Fourth District, Division Three. June 30, 1994. *570 COUNSEL Carlos F. Negrete for Plaintiff and Appellant. Coontz & Matthews and M. Stephen Coontz for Defendants and ...
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Opinion — Appellants, Claude Percy, Major Bell, James Lewis, and Greg Carter, are jailers at the Oakland city jail. They and their union contend the jailers are entitled to the special disability benefits, provided by Labor Code 1 section 4850, for city police officers and other city employees whose duties “clearly fall within the scope of active law enforcement service.” We ag...
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Opinion — Kenneth Bray (Bray), a discharged employee, sought workers’ compensation benefits, alleging industrial injury to his nerves, psyche and internal system caused by termination from his employment. The workers’ compensation judge (WCJ) awarded him compensation. The Workers’ Compensation Appeals Board (Board) rescinded the award on the grounds that Bray’s injury was not one “arising...
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Opinion — Here we hold that an administrative law judge awarding payment for retroactive in-home supportive services (IHSS) benefits, pursuant to Welfare and Institutions Code1 section 10950 et seq., has the authority to award interest on retroactive payments. We also hold that appellant was an “aggrieved party” with standing to challenge the trial court’s judgment which awarded her interest but ...
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*739 Opinion — The trial court ruled that appellant Zanwil Sperber had failed to establish an equitable lien and directed the jury to return a verdict in favor of respondents on appellant’s cause of action for declaratory relief. Appellant contends: “I. The court erred in directing a verdict in favor of defendant Robinson since there was substantial evidence tending to prove a li...
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Opinion by Judge BEEZER. The Bank of Guam (“Bank”) challenges the district court’s denial of its motion for judgment as a matter of law or, alternatively, a new trial pursuant to Fed.R.Civ.P. 50(b) as to Gushi Brothers’ (“the Chutaros”) claim for violation of the Bank Holding Company Act, 12 U.S.C. §§ 1971-1978. 1 The Bank contends that the court used an improper legal standard...
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OVERVIEW Plaintiffs-appellants Pacific Rivers Council, et al. (PRC) appeal the district court’s grant of a partial injunction. This injunction bars the United States Forest Service (Forest Service) from announcing, awarding or conducting any additional timber sales, range activities, or road building projects in the Wallowa-Whitman and Umatilla National Forests until it commences consultation pr...
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We dismiss this appeal because the appellants won the case below. They lost on the issue which they want us to review, but the decision on that issue has no effect on them. The Przybylas transferred property to the Good Samaritan Church. A year later, the IRS assessed a tax deficiency against them. The IRS seized the church property on the ground that Good Samaritan Church was the nominee ...
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28 F.3d 1005 Donald Ray WELLS, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Oregon State Penitentiary,Respondent-Appellee. No. 92-36861. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1993.Decided July 7, 1994. Jane E. Ellis, Portland, OR, for petitioner-appellant. Thomas H. Denney, Deputy Atty. Gen., Salem, OR, for respondent-a...
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Opinion LILLIE, P. J. — Plaintiffs (hereinafter referred to collectively as Brown) appeal from an order of the municipal court 1 denying their motion to strike $31,300 in attorney fees and $1,346 in costs claimed by defendant West Covina Toyota (hereinafter Toyota) in a memorandum of costs filed after a judgment on directed verdict in defendant’s favor. The issue on this ap...
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Opinion — While waiting in an examining room at the UCLA Medical Center, three-year-old Jonathan Herbert got his hands on some used needles and stuck himself. His mother’s first thought was of AIDS, and although Jonathan then and later tested negative, Jonathan’s mother sued the Regents of the University of California for negligent infliction of emotional distress. The trial court granted...
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*189 Opinion — Valerie Marriage appeals from the trial court’s dismissal of her action to quiet title. She challenges the dismissal of her adverse possession cause of action, which the court found barred by the doctrine of loches, and the dismissal of a defendant as a sanction for failure to effect timely service. We reverse. Factual and Procedural Background On July 3, 1991, Valerie 1 ...
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*849 Opinion — The issue before this court is whether Dale Sandhu, an “East Indian” from Punjab, India, can sue under the Fair Employment and Housing Act for race-based employment discrimination. Lockheed argued successfully below that Sandhu was Caucasian and therefore could not bring suit on a race theory. We reject this narrow definition of race and hold that a cognizable clai...
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29 F.3d 1355 Julia ALEXANDER, as executor of the estate of Henry O.Quade, Jr., deceased, Plaintiff-Appellant,v.CITY AND COUNTY OF SAN FRANCISCO, Frank Jordan, JohnWillett, Timothy Hettrich, Joaquin Santos, MatthewCastagnola, David Seid, Bernard Sullivan, Richard Lee, DavidShinn, James Dachauer, Patrick White, Joseph Kennedy,Richard Heller, Steven Gough, Edward St. Andre, NicholasBorthne, Richa...
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The United States filed an information under § 5032 of the Federal Juvenile Delinquency Act charging David H. with committing armed bank robbery when he was seventeen, and moved to transfer David H. to adult status for criminal prosecution. Section 5032 required such a transfer if (1) the act charged was committed after the juvenile’s sixteenth birthday, (2) the act would have been a felony inv...
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*792 Opinion — Petitioner, Beverly Hills Multispecialty Group, Inc. (BHMG), sought writs of review in 10 cases in which respondent Workers’ Compensation Appeals Board (Board) affirmed orders denying BHMG’s lien claims for medical treatment and medical-legal costs. In each case, the allegedly injured worker filed a claim form or application alleging a cumulative industrial injury ...
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Opinion — In this opinion, we hold that the trial court abused its discretion in dismissing an action after appellant filed his amended complaint one day late. We also hold that where the amended complaint has been served on the defendant before the defendant moves to dismiss the action, *826 the defendant must give notice of any application or motion to dismiss or strike to ...
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Opinion — The Franchise Tax Board of the State of California appeals from the judgment entered in favor of McDonnell Douglas Corporation on its complaint for refund of franchise taxes paid under protest. McDonnell Douglas cross-appeals from the trial court’s denial of its request for attorney fees expended in pursuing its complaint. We affirm the judgment. Summary of Facts Plain...
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Opinion — Richard B. Goosmann appeals from the trial court’s order awarding child support to his ex-wife, Mary B. Goosmann (now Mary Fisher). Richard contends that the trial court erred by awarding, in 1992, child support retroactive to 1990. We conclude that although the issue of child support was raised in 1990, it was not decided. We hold that an original child support order may be ret...
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29 F.3d 495 39 ERC 1282, 24 Envtl. L. Rep. 21,273 The CHLORINE INSTITUTE, INC.; DX Systems Company; GeneralChemicals Corp.; Jones Chemicals, Inc.,Plaintiffs-Appellees,v.CALIFORNIA HIGHWAY PATROL, an agency of the State ofCalifornia; State of California, Defendants-Appellants. No. 92-16858. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 11, 1994.Deci...
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OPINION This appeal arises from a bankruptcy court’s order granting summary judgment in favor of the appellee. The appellee had filed a complaint for a determination as to the validity and priority of a deed of trust. The *399 Chapter 7 2 Trustee filed a cross-complaint asserting that the lien could be avoided under § 548(a). Cross motions for summary judgment ...
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OPINION The debtor and his wife received two refund checks, one from a real estate seller and another from an escrow company. The escrow company issued their refund check by mistake. The debtor deposited both checks. The appellee sought imposition of a constructive trust on the debtor’s subsequently purchased home based on the mistaken cheek. The bankruptcy court imposed a constructiv...
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Opinion — Defendant and appellant Luis Alberto Molina Delvalle appeals the judgment (order granting probation) entered following his conviction of two counts of attempting to buy a person. (Pen. Code, § 181.) 1 Because the evidence supports the convictions and the conditions of probation are reasonably related to Delvalle’s offense, the judgment is affirmed. Factual and Procedural Backgro...
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Opinion — A jury convicted defendant of several controlled substance offenses, including one count of receiving, without a permit, a substance from outside of California containing ephedrine which is barred from transfer under federal law. (Health & Saf. Code, § 11106.) 1 She appeals from the ensuing order of probation. Defendant concedes that she did not have a permit. Sh...
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29 F.3d 1378 39 Fed. R. Evid. Serv. 1189 UNITED STATES of America, Plaintiff-Appellee,v.Jose BARRAGAN-CEPEDA, Defendant-Appellant. No. 93-50642. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 6, 1994.Decided July 12, 1994. Karen Sue Berg, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant. Thomas W. McNamara, Asst. U....
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Opinion — In this appeal, we affirm the judgment of the trial court and hold that appellant is not eligible for indemnification pursuant to Corporations Code section 317, subdivision (d). 1 In so holding, we determine that section 317 allows indemnification for corporate “agents” sued for carrying out activities on behalf of a corporation within the common law meaning of agency...
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Opinion — The issue in this case is the sufficiency of evidence at a preliminary hearing to establish probable cause for holding the petitioner to answer felony charges and to support the denial of his subsequent motion to dismiss. Petitioner argues that the declarant, whose statement was recounted by a qualified law enforcement officer, was a coparticipant in the offense, and hence that his st...
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31 F.3d 1428 UNITED STATES of America, Plaintiff-Appellee,v.GILA VALLEY IRRIGATION DISTRICT, et al.; State of Arizona,Defendants-Appellants,v.GILA RIVER INDIAN COMMUNITY; San Carlos Apache Tribe; SanCarlos Irrigation District,Plaintiffs-Intervenors-Appellees. No. 93-15076. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 16, 1994.Submission Deferred March...
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168 B.R. 386 (1994) In re Daniel C. HANNA, Debtor. GULL INDUSTRIES, INC., an Oregon corporation, and BP Oil Company, an Ohio corporation, Appellants/Cross-Appellees, v. JOHN MITCHELL, INC., Trustee of the Estate of Daniel C. Hanna and Daniel C. Hanna, Appellees/Cross-Appellants. BAP Nos. OR-92-2283-VMeJ, OR-92-2285-VMeJ. Bankruptcy No. 390-33990-S11. Adv. No. 90-3388S. United States Bankruptcy Ap...
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Opinion — Plaintiffs and appellants Del Norte Disposal, Inc., and Del Norte Solid Waste Management Authority appeal from an order denying their motion for a preliminary injunction in an action to compel defendants and respondents State of California Department of Corrections and Eel River Disposal Co. to cancel a contract for solid waste disposal. In the contract Eel River Disposal agrees to “f...
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Opinion — Plaintiff, GTE Sprint Communications Corporation (Sprint), appeals from a judgment denying its complaint for property tax refunds *995 (Rev. & Tax. Code, § 5148) 1 for the years 1983 and 1984. In its complaint, as it did in its petitions for reassessment to the State Board of Equalization (the Board) below, Sprint contends that the Board’s appraisers unla...
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Opinion — In this case we hold that when ordering child support the trial court lacks discretion to vary from the presumptively correct amount, calculated by applying the algebraic formula in the statute, unless one or more of the statutorily enumerated rebuttal factors is found to exist. Garry Carter, in proprio persona, appeals from an order denying his motion to modify child support and to ord...
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Opinion In this case we hold that in ordering additional child support for employment-related child care costs and for uninsured medical expenses, if the parents’ income is not disparate, the trial court possesses discretion to determine whether to order these expenses shared equally or in proportion to the parents’ net disposable income. Teri D. Fini (now Pederson) appeals from a child support or...
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Opinion — In this insurance bad faith case, we consider whether an insurer must accept a settlement offer exhausting the policy in exchange for the release of only one of three insureds, leaving the remaining insureds subject to liability for a judgment that may exceed the policy limits. The trial court found no duty to settle under these circumstances, granted summary adjudication for re...
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Opinion — Defendant and appellant Heriberto Contreras appeals the judgment entered following his conviction by jury of second degree murder. (Pen. Code, § 187.) 1 Contreras also pleaded guilty to a violation of Vehicle Code section 14601, subdivision (a), and admitted two prior convictions for violations of the same section within five years of the instant offense. The trial court sentenced C...
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Opinion — Plaintiff Rhonda Hill’s infant daughter Amber tragically died while in the care of Amber’s foster mother, defendant Gean Newkirk. Hill *1051 brought a negligence action against Newkirk. The court sustained Newkirk’s demurrer without leave to amend on the ground that Hill failed to first file a claim with the Foster Family Home and Small Family Home Insurance Fund (Fund) as required ...
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Opinion — Following a jury trial, respondent Linda Murray obtained judgment against her adoptive father, Robert Athanasius Murray and his wife, Carol Ann Slater Murray. 1 The judgment quieted Linda’s title to a certain parcel of real property, awarded her damages of $60 each against Robert and Carol, and awarded her an additional $70,000 against Carol alone for attorney fees in...
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Opinion — This is an appeal following a resentencing hearing which was ordered by this court in an unpublished opinion that affirmed the convictions of appellant Virgil Dell Bullock on various felony charges but found sentencing error. In this appeal Bullock claims the trial court erred by not ordering and considering an updated probation report before imposing a new sentence. He relies on a serie...
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29 F.3d 499 63 USLW 2096, 39 Fed. R. Evid. Serv. 911 H. Jerome CLAAR; Ben Mar; Maynard Young; Donald Doll,Plaintiffs-Appellants,v.BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee.Dick EGGAR; Ray Ellison, Plaintiffs-Appellants,v.BURLINGTON NORTHERN RAILROAD COMPANY, Defendant-Appellee. Nos. 92-35337, 92-35539. United States Court of Appeals,Ninth Circuit. Argued and ...
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32 F.3d 1360 31 Collier Bankr.Cas.2d 726, 25 Bankr.Ct.Dec. 1475,Bankr. L. Rep. P 75,988 Clarence L. HEDGES, Debtor, Patricia Hedges Beckett,Personal Representative for Clarence Lee Hedges, Appellant,v.RESOLUTION TRUST CORPORATION, as Receiver for GibraltarSavings, F.A., Successor-in-Interest to CathedralMortgage Company, Inc., a Californiacorporation, Appellee.In re Clarence L. HEDGES, De...
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31 F.3d 759 The LIBERTARIAN PARTY OF WASHINGTON; Arthur Rathjen; DanBlachly; Tom Isenberg, Plaintiffs-Appellants,v.Ralph MUNRO, Secretary of State for Washington State; BrianSonntag, Auditor for Pierce County, Washington;Jane Haugh, Elections Manager, for KingCounty, Washington,Defendants-Appellees. No. 92-36620. United States Court of Appeals,Ninth Circuit. Argued and Submitte...
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29 F.3d 1382 65 Fair Empl.Prac.Cas. (BNA) 769 Jacquelin K. LINDSEY, Plaintiff-Appellee,v.Donald L. "Pat" SHALMY, Clark County Manager, et al., Defendant,andCliff Rives, Defendant-Appellant. No. 92-15938. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1993.Decided July 14, 1994. Rex Bell, Deputy Dist. Atty., Las Vegas, NV, for defendant; W...
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We must decide whether the holder of an easement burdening land which contains a hazardous waste facility is, by virtue of that interest alone, liable for cleanup costs as an “owner” or “operator” under the Comprehensive Environmental Response, Compensation and Liability Act (“CERCLA”), 42 U.S.C. § 9601 et seq. I Appellant, Long Beach Unified School District (“the district”), ...
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29 F.3d 1390 UNITED STATES of America, Plaintiff-Appellee,v.Vincent CATERINO, Defendant-Appellant. No. 93-50184. United States Court of Appeals,Ninth Circuit. Submitted April 4, 1994*.Decided July 14, 1994. David W. Wiechert, Layman, Jones & Dye, Irvine, CA, for defendant-appellant. Ronald L. Cheng, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. ...
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28 F.3d 1544 29 Fed.R.Serv.3d 733, 24 Envtl. L. Rep. 21,275 UNITED STATES of America, as trustee for the Kalispel IndianTribe and individual allottees, Plaintiff-Appellee,andKalispel Indian Tribe, Intervening-Plaintiff,v.PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1, a municipalcorp., Defendant,andDepartment of Natural Resources, State of Washington,Defendant-Intervenor-Appellant.UNITED STATE...
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29 F.3d 1386 29 Fed.R.Serv.3d 947 Lee Edward WARREN, Plaintiff-Appellee,v.Douglas GUELKER, Defendant-Appellant. No. 93-35211. United States Court of Appeals,Ninth Circuit. Submitted June 10, 1994*.Decided July 14, 1994. Daniel J. Judge, Asst. Atty. Gen., Olympia, WA, for defendant-appellant. Lee Edward Warren, pro se. Appeal from the United States Distric...
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30 F.3d 101 CHURCH OF SCIENTOLOGY OF SAN FRANCISCO; Church ofScientology of California, et al., Plaintiffs-Appellants,v.INTERNAL REVENUE SERVICE, Defendant-Appellee.CHURCH OF SCIENTOLOGY OF SAN FRANCISCO, Plaintiff-Appellant,v.INTERNAL REVENUE SERVICE, Defendant-Appellee. Nos. 91-15730, 91-15734. United States Court of Appeals,Ninth Circuit. July 14, 1994. Before: BEEZ...
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29 F.3d 1398 CONFEDERATED SALISH; Kootenai Tribes of the FlatheadReservation, Plaintiffs-Appellees,v.Mark SIMONICH,* Defendant-Appellant. No. 93-35103. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 7, 1994.Decided July 15, 1994. Harley R. Harris, Asst. Atty. Gen., Donald D. MacIntyre and Tim D. Hall, Sp. Asst. Attys. Gen., Montana Dept. of Na...
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31 F.3d 767 In re Claude E. SAUNDERS, Debtor,Claude E. SAUNDERS, Appellant,v.BAND PLUS MORTGAGE CORP.; Fidelity Home & Loan Co.;Pacific Thrift & Loan Co.; Cut-Met Mortgage Co., Appellees. No. 93-56627. United States Court of Appeals,Ninth Circuit. Submitted June 21, 1994*.Decided July 15, 1994. Claude E. Saunders, in pro. per. Stephen E. Jenkins, Hemar, R...
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Danielle Alexander, a creditor, appeals from the district court’s dismissal of her appeal as untimely from the bankruptcy court’s order authorizing the Chapter 7 trustee to abandon certain causes of action in the bankruptcy of debtor Thomas Delaney. We have jurisdiction pursuant to 28 U.S.C. § 158(d) and affirm.1 The timeliness of a notice of appeal is a question of law which we review de novo. *5...
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In 1976, the appellant Hershell Don Simmons (“Simmons”) entered into a franchise agreement with Mobil Oil Corporation (“Mobil”) to lease a gasoline service station in Peoria, Arizona, and to buy Mobil petroleum products to be retailed under the Mobil trademark. Simmons operated the station under three-year franchises with Mobil that were renewed in 1979, 1982, and 1985. On January 4, 1988,...
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29 F.3d 513 1995 A.M.C. 912 STEVEDORING SERVICES OF AMERICA; Eagle Pacific InsuranceCompany, Petitioners,v.DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, UnitedStates Department of Labor; Frank Mattera; LongBeach Container Terminal; and SignalAdministration, Inc., Respondents. No. 92-70627. United States Court of Appeals,Ninth Circuit. Submitted May 3, 1994*.Decided Ju...
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7 Cal. 4th 1144 (1994) 875 P.2d 736 31 Cal. Rptr. 2d 631 THE PEOPLE, Plaintiff and Respondent, v. ALFONSO SERGIO ARREOLA, Defendant and Appellant. Docket No. S034323. Supreme Court of California. July 14, 1994. *1147 COUNSEL J. Courtney Shevelson, under appointment by the Supreme Court, and Thomas F. Thurlow, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren...
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Opinion — Juan Carlos Martinez (appellant), Nelson Salvador Castillo, and Jesse James Tarver were charged with a special circumstance murder, robbery, and several attempted robberies. The prosecution’s severance motion was granted and appellant was tried alone. A jury convicted appellant of first degree murder (Pen. Code,1 § 187; count I) and found true as special circumstances (§ 190.2, subd. (a...
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Opinion — If the defendant-shooter, in one trial, is acquitted of murder, may the defendant-aider and abettor, in another trial, be convicted of murder? Our answer is yes. Collateral estoppel, as we explain, does not bar the aider and abettor’s conviction. We correct the judgment and, as corrected, affirm the judgment. *1091Procedural and Factual Background On May 22, 1990, the Los Angeles County...
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Opinion — On June 1, 1991, Jason Billester, then 13 years old, was injured when the vehicle in which he was a passenger was broadsided by a vehicle driven by a juvenile suspected of vehicle theft fleeing from a Corona police officer. The officer had pursued the juvenile through a red traffic signal and a stop sign. The juvenile was travelling at 55 to 65 miles an hour when the collision occurre...
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29 F.3d 1408 RED MOUNTAIN MACHINERY COMPANY, an Arizona corporation,Plaintiff-Appellant,v.GRACE INVESTMENT COMPANY, an Arizona corporation; CanadianImperial Bank of Commerce, a foreign corporation,Defendants-Appellees. No. 92-16825. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 9, 1994.Decided July 18, 1994. Lawrence C. Wright, Mesa, AZ, for pl...
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29 F.3d 1418 Jess T. SIMPSON, former President and Chairman of the Boardof Directors, Cascade Savings Bank, Everett,Washington, Petitioner,v.OFFICE OF THRIFT SUPERVISION, Respondent. Nos. 92-70797, 93-70050. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1994.Decided July 18, 1994. Jonathan B. Noll, Foster Pepper & Shefelman, Seattle, WA,...
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29 F.3d 1413 63 USLW 2056, 6 A.D.D. 175, 5 NDLR P 196 UNITED STATES of America, Plaintiff,andElayne Cohen-Strong, Intervenor-Appellant,v.CALIFORNIA MOBILE HOME PARK MANAGEMENT CO.; and BrianDougher, d/b/a Costa Mesa Mobile Estates,Defendants-Appellees. Nos. 92-55568, 92-56026. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1993.Decided July 18, 1994...
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29 F.3d 1426 39 Cont.Cas.Fed. (CCH) P 76,686 Calvin G. WRIGHT; Jack Critchfield; Desert ForestProducts, Inc., d/b/a Hutchinson, Carter Company,Plaintiffs-Appellants,v.U.S. POSTAL SERVICE, Defendant-Appellee. No. 93-55069. United States Court of Appeals,Ninth Circuit. Submitted June 8, 1994*.Decided July 18, 1994. Brian S. Case, Case & Associates, Costa Mesa, CA...
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26 Cal.App.4th 1139 (1994) 32 Cal. Rptr.2d 464 RANCHO SANTA PAULA MOBILEHOME PARK, LTD., Plaintiff and Respondent, v. BARBARA J. EVANS et al., Defendants and Appellants. Docket No. B075289. Court of Appeals of California, Second District, Division Six. July 15, 1994. *1141 COUNSEL Richard A. Weinstock, Channel Counties Legal Services Association, Andrew Koenig, Robert K. Miller, M. Carmen Ramirez...
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Plaintiff Denard M. Fobbs, M.D. seeks judgment against defendant St. Agnes Hospital and Medical Center (“St. Agnes” or “hospital”) and various individual physician defendants who were on the Medical Staff and served on various peer review committees at the hospital for the summary suspension of his staff privileges. In 1987, Dr. Fobbs, an African American, was granted privileges by the hospital to...
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30 F.3d 1077 74 A.F.T.R.2d 94-5363, 63 USLW 2076,94-2 USTC P 50,386 Jack R. HAWKINS, Cynthia J. Hawkins, husband & wife,Plaintiffs-Appellees,v.UNITED STATES of America, Defendant-Appellant. No. 93-15828. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 11, 1994.Decided July 19, 1994. Gary R. Allen, Edward T. Perelmuter, Tax Div., U.S. Dep...
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29 F.3d 1432 UNITED STATES of America, Plaintiff-Appellee,v.Nazareth ANDONIAN, Vahe Andonian, Ruben Saini, Raul Vivas,and Juan Carlos Seresi, Defendants-Appellants. Nos. 91-50622, 91-50623, 91-50624, 91-50625 and 91-50626. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1, 1993.Submission Deferred Dec. 23, 1993.Resubmitted Feb. 9, 1994.Decided July 19, 1994....
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Opinion We granted review to consider an attorney’s status as “in-house” counsel as it affects the right to pursue claims for damages following an allegedly wrongful termination of employment. Specifically, we are asked to decide whether an attorney’s status as an employee bars the pursuit of implied-in-fact contract and retaliatory discharge tort causes of action against the employer tha...
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Opinion — A jury convicted defendant of willful diversion of construction funds (Pen. Code, § 484b) and found the taking exceeded $25,000 (Pen. Code, § 12022.6, subd. (a)). Imposition of sentence was suspended and defendant was granted probation for five years. *1181 In the published part of this opinion we shall reject defendant’s contention that the trial court erred in instructing the ju...
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Opinion — Consistent with all of the out-of-state authorities which have considered the issue, in this case we hold an insured homeowner may recover the replacement cost of fire damage to an insured home by purchasing another home at another location. Accordingly, we reverse the judgment entered in favor of the defendant insurer. Factual and Procedural Summary The facts which gi...
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*1196 Opinion — The single issue in this appeal is the proper interpretation of a contractual clause by which the owner of property waived certain claims for damages against its contractors. Lloyd’s Underwriters et al. (appellants), the insurers for the owner, argue the damages for which they have sued respondents (the contractors for the job) fall outside the ambit of the waiver...
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Opinion MIHARA, J. — Defendant Cave Imaging Systems, Inc., appeals from a judgment entered in favor of plaintiffs John and Ruth Rosh. 1 Defendant provided security services for Mr. Rosh’s employer, Conner Peripherals. In his management capacity at Conner Peripherals Mr. Rosh terminated an employee. The employee then returned to the premises and shot Mr. Rosh. Plaintiffs brought ...
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31 F.3d 768 The CROW TRIBE OF INDIANS, Plaintiff-Appellant,v.CAMPBELL FARMING CORPORATION; Robert Earl Holding;Sinclair Oil Corporation, d/b/a Sunlight RanchCompany; Sun Valley Company; and KMHRanch Company, Defendants-Appellees. No. 92-36612. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 5, 1994.Decided July 20, 1994. Robert S. Pelcyger, Fre...
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Opinion — In this case, we are asked to decide whether Code of Civil Procedure section 206, subdivision (f) requires the court to provide the defense with addresses and telephone numbers of jurors posttrial upon request. We hold the answer is no, not after jurors have exercised their “absolute right” to refuse to discuss the deliberations or verdict with counsel under subdivision (a). ...
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30 F.3d 1105 24 Envtl. L. Rep. 21,282 KEY TRONIC CORPORATION, a Washington Corporation, Plaintiff-Appellee,v.UNITED STATES of America; United States Department of theAir Force; Donald B. Rice, Secretary of theUnited States Air Force, in his officialcapacity, Defendants-Appellants. No. 91-36021. United States Court of Appeals,Ninth Circuit. July 21, 1994. On Remand ...
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31 F.3d 772 63 USLW 2078, Fed. Sec. L. Rep. P 98,331 James G. MONROE and Penelope E. Monroe, individually and onbehalf of all similarly situated persons,Plaintiffs-Appellants,v.Gary C. HUGHES; Thomas R. Hudson; and Deloitte & Touche,fka Deloitte, Haskins & Sells, Defendants-Appellees. No. 92-35306. United States Court of Appeals,Ninth Circuit. Argued and Submitted Au...
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Opinion — Richard and Marion Lewinter (plaintiffs) appeal from the summary judgment entered in favor of Genmar Industries, Inc. We affirm. Background In 1989, plaintiffs purchased a used 61-foot motor yacht from a private party for recreational use. On March 14, 1989, while plaintiffs were at sea, the yacht experienced a catastrophic hull failure allegedly caused by defective la...
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*1259 Opinion — The primary issue before us is whether the standard cooperation clause included in every third party liability insurance policy operates as a contractual waiver of the insured’s attorney-client privilege in the event of coverage litigation between the insured and its insurer. For the reasons explained below, our answer is a resounding no. Background From...
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*1282 Opinion — Following the denial of his Penal Code section 1538.5 motion, John Michael Bouser pleaded guilty to unlawfully possessing tar heroin (Health & Saf. Code, § 11350, subd. (a)). We find the heroin was legally seized and affirm the judgment. I One afternoon, Santa Ana Police Officer Brad Sadler saw Bouser in an alley known for drug dealing. Bouser was standi...
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Appellant Carpenters Pension Trust Fund for Northern California (“the Fund”) is a multiemployer pension plan for the carpenters who are .represented by Carpenters 46 Northern California Counties Conference Board of the United Brotherhood of Carpenters and Joiners of America (AFL-CIO). The trustees of the Fund administer the plan pursuant to a Trust Agreement. Appellee Underground Construction C...
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This is an admiralty action brought by crewmen seeking unpaid wages for work they performed on three fishing vessels. The vessels have been arrested and sold, and this litigation concerns the disposition of the proceeds. The intervenor-appellant, Aizawa K. Gyo-gyo (Aizawa), is a Japanese corporation that has been assigned the ownership interest in equipment that was on board the vessels when th...
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30 F.3d 1115 22 Media L. Rep. 2313 Ian Y. LIND, Plaintiff-Appellee,v.Gary G. GRIMMER; Linda K. Rose-Hill; James C.F. Wang;Robert Y. Watada, Individually, and in their capacities asCommissioners of the Campaign Spending Commission, State ofHawaii; and Jack M.K. Gonzales, Individually, and in hiscapacity as the Executive Director of the Campaign SpendingCommission, State of Hawaii, Defend...
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30 F.3d 1106 Francisco NARANJO-AGUILERA; Candelario Orozco-Macias;Juventino Tafolla-Ramirez; Hector Orozco-Flores;Celestino Gaona,Plaintiffs-Appellees-Cross-Appellants,v.U.S. IMMIGRATION & NATURALIZATION SERVICE; William P. Barr,in his official capacity as Attorney General ofthe United States,Defendants-Appellants-Cross-Appellees. Nos. 92-16653, 92-16933. United States Court of ...
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Steve Martini went to trial instead of accepting a plea agreement that would have resulted in a 70-month minimum sentence. He was convicted of two drug-related crimes and sentenced to ten years in prison. He now appeals his conviction, claiming he received ineffective assistance of counsel from a lawyer who advised him to reject the plea offer. Martini received conflicting advice about the plea...
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7 Cal.4th 1193 (1994) 875 P.2d 1279 31 Cal. Rptr.2d 776 VIVIENNE LUNDQUIST, Plaintiff and Respondent, v. HEINZ REUSSER et al., Defendants and Appellants. Docket No. S030738. Supreme Court of California. July 21, 1994. *1196 COUNSEL Archbald & Spray, Barry Clifford Snyder, Katherine H. Bower and Douglas B. Large for Defendants and Appellants. Glen M. Reiser, Cynthia H. Reiser, Nordman, Cormany...
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Opinion Pacific Lumber Company submitted two timber harvesting plans covering old-growth forest in Humboldt County to the Department of Forestry (department). In response to a request by the Department of Fish and Game (Fish and Game), the department asked Pacific Lumber Company to provide information on old-growth-dependent wildlife species within the plan areas. Pacific Lumber Company r...
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Opinion — Steve Bloom appeals from the judgment denying his petition for a writ of mandate to compel the California Department of Health Services (Department) to set aside the permits it issued in October of 1992 to Integrated Environmental Systems (IES) for continued operation of a medical waste treatment facility. We affirm. I. Background The facility has operated at 4...
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Opinion — Defendant was convicted in a jury trial of committing a lewd act upon a child under 14 (Pen. Code, § 288, subd. (a)). The jury also found defendant was a stranger to the victim so as to make him ineligible for probation (Pen. Code, § 1203.066, subd. (a)(3)). In a bifurcated proceeding the trial court found the allegations of prior convictions to be true so as to make defendant ineli...
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Opinion — Ethel and Walter Benson (the Bensons) appeal from the judgment entered after the jury rendered a special defense verdict in favor of Honda Motor Company, Ltd. et al. (Honda). We affirm. Facts While stopped at a red light, the Bensons’ 1984 Honda Accord sedan was struck in the rear by a significantly larger, full-sized 1978 GMC Jimmy pickup whose brakes had failed. The pickup struc...
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*1353 Opinion — We hold that delinquency penalties, collected on special taxes imposed pursuant to the Mello-Roos Community Facilities District Act of 1982, “follow the tax” and go to the public entity that levied the tax. (Gov. Code, §§ 53312, 53340, 53340.5.) 1 County of Ventura, Norman R. Hawkes in his capacity as Ventura County Auditor-Controller, and Harold S. Pit...
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Opinion — In this case, we hold that a defendant may be convicted of only one kidnapping offense where there is but one abduction and detention of a solitary victim. Appellant, Lamar Donnell Thomas, was convicted by a jury of five counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), three counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), one count of sodomy (Pen. Code, §...
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Opinion — After the trial court denied his suppression motion, defendant pied no contest to charges of drug and firearm possession. (Health & Saf. Code, §§ 11055, subd. (d)(2), 11377; Pen. Code, § 12021, subd. (a).) The court granted probation with the condition that defendant serve a nine-month jail term (which was stayed pending appeal). Defendant renews his efforts to quash the search ...
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30 F.3d 1138 24 UCC Rep.Serv.2d 75 In re BLUE LAKE FOREST PRODUCTS, INC., a Californiacorporation, Debtor.The HOOPA VALLEY TRIBE, a federally-recognized Indian Tribe,on its own behalf and as parens patriae for itsmembers, Plaintiff-Appellee,v.HONGKONG AND SHANGHAI BANKING CORPORATION, LIMITED, aforeign corporation, Defendant-Appellant,andBlue Lake Forest Products, Inc., a California corpor...
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Harpal Singh Ahluwalia appeals the conviction entered on his conditional plea of guilty to conspiracy to bribe a public official, 18 U.S.C. § 371. He bribed Gregory Ward, the Chief Legalization Officer at the Salinas office of the Immigration and Naturalization Service, to get temporary work authorization cards (TWACs). The district court denied Ahluwalia’s motion to dismiss the indictment on the...
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Opinion by Judge CHOY; Dissent by Judge NOONAN. On July 2, 1992, appellant Daniel Chischilly (“Chisehilly”) was convicted by a jury in the United States District Court for the District of Arizona of aggravated sexual abuse and murder in violation of 18 U.S.C. §§ 1111, 1153 and 2241(b)(1). Chisehilly appeals, challenging six aspects of the court’s ruling and one aspect of sentencing, including (1)...
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Opinion by Judge FLETCHER. Daryl Alan Freter appeals his jury conviction for failing to notify federal authorities of the release of a reportable quantity of a hazardous substance from a facility in his charge in violation of 42 U.S.C. § 9603(b)(3). We have jurisdiction, and we affirm. I In the late 1980’s, Freter entered into an agreement with two investors, Carl Long and John ...
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*1361 Opinion — In this action involving an accident between an automobile and pedestrian, defendant appeals from a judgment entered on special verdict in favor of plaintiff for $538,000 plus costs. On appeal, defendant contends that the judgment should be reversed due to prejudicial jury misconduct during deliberations, when a juror allegedly communicated to the other jurors inf...
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Opinion — Franchise Tax Board (Board) appeals from a judgment entered following a court trial adjudging recovery from the Board by John L. *1669 Krumpotich and Claire M. Krumpotich (plaintiffs/respondents) the principal sum of $66,863.00 plus interest and costs of suit. The Board contends the court erred in determining that plaintiffs were entitled to claim a tax credit autho...
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Opinion — Paramount Unified School District (District) appeals from a judgment confirming an arbitration award directing that District pay its former probationary teacher L. Mason Frelix (Frelix) compensatory damages in the sum of $24,685.69. 1 The primary issue on appeal is whether the trial court erred in failing to vacate an arbitration award on the ground that the arbitrato...
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Opinion — In this case, we are called upon to decide whether the court may prohibit the media from publishing the name or likeness of a minor charged with murder at a juvenile court detention hearing when the minor’s name and image were broadcast by the media at her arrest a few days before the hearing. Murder is one of the serious offenses which opens the door to a public hearing. T...
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*1688 Opinion — Valle de Oro Bank, N.A. (Bank) appeals from a judgment following a jury verdict in favor of respondent Henry Gamboa (Gamboa) and from the trial court’s denial of its motion for judgment notwithstanding the verdict. The Bank brought this action for damages for the balance due on a promissory note executed by Gamboa in consideration for a loan to purchase a motor ho...
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30 F.3d 1174 128 Lab.Cas. P 33,114, 2 Wage & Hour Cas.2d(BNA) 299 Gregory BERRY; Forrest Fasig; Phillip Marcus; DennisMcAllister; Francis Oravetz; and N. Tom Siebe,Plaintiffs-Appellees, Cross-Appellants,v.COUNTY OF SONOMA; Sonoma County Sheriff's Department;Sonoma County Board of Supervisors; Janet Nicholas; JamesHarberson; Tim Smith; Nick Esposito; Ernest Carpenter;and Ric...
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Opinion by Judge SCHROEDER. Thomas Phillip Nehez petitions for review of the National Transportation Safety Board’s (“NTSB”) decision that he violated Federal Aviation Regulation 91.9. He contends that there was no evidence that he had “endangered the life or property of another” within the meaning of that regulation. 1 He also contends that the Administrator’s sanction, suspension of his air...
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Michael Wayne Eaton appeals his conviction and sentence under 18 U.S.C. § 922(g)(1), which makes it unlawful for a felon convicted of a crime punishable by more than one year of imprisonment to “knowingly possess in or affecting commerce any firearm or ammunition.” Eaton contends that he is not a felon within the meaning of 18 U.S.C. § 922(g)(1) because Montana restored his civil rights after he ...
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Thomas Lavell McClain appeals his 97-month sentence imposed following entry of a guilty plea to possession of cocaine hydrochloride and cocaine base with intent to distribute in violation of 21 U.S.C. § 841(a)(1) and use of firearms during the commission of a drug trafficking crime in violation of 18 U.S.C. § 924(c). McClain contends that the district court erred by denying him a downward adjustm...
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Opinion by Judge SCHROEDER. Miguel Navarro-Espinosa appeals his conviction and sentence for conspiracy to distribute heroin, 21 U.S.C. § 846; distribution of heroin, 21 U.S.C. § 841(a)(1); and aiding and abetting distribution of heroin, 18 U.S.C. § 2. His challenges to the underlying conviction are without merit and can be disposed of easily. His challenge to the district court’s authority to c...
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PER CURIAM: The United States appeals the 24-month sentence imposed on Jose Angel Sanchez-Montoya following his conditional guilty plea to being found in the United States after having been deported following an aggravated felony conviction, in violation of 8 U.S.C. § 1326(b)(2). Although the applicable Guidelines range is 57 to 71 months, the district court limited Sanchez-Montoya’s sentence t...
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We explore the nether reaches of two areas of antitrust law: the statutory labor exemption and the Noerr-Pennington doctrine. *804I USS-POSCO Industries (UPI) is a joint venture between USX Corporation (formerly U.S. Steel) and Pohang Iron and Steel Co. of South Korea, formed to modernize and operate an old steel facility in Pittsburg, California (PITCAL). Interested unions allegedly attempted to ...
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31 F.3d 812 SUBAFILMS, LTD.; The Hearst Corp.,Plaintiffs-counter-defendants-Appellees,v.MGM-PATHE COMMUNICATIONS CO., fka MGM/UA Communications Co.and as United Artists Corporation; MGM/UA Home Video, Inc.;Warner Home Video, Inc.; Warner Bros. Inc.,Defendants-counter-claimants-Appellants.SUBAFILMS, LTD.; The Hearst Corp., Plaintiffs-Appellants,v.MGM-PATHE COMMUNICATIONS CO., fka MGM/UA Com...
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8 Cal.4th 30 (1994) 876 P.2d 999 32 Cal. Rptr.2d 200 DORIS HELLER, Plaintiff and Appellant, v. NORCAL MUTUAL INSURANCE COMPANY et al., Defendants and Respondents. DORIS HELLER, Petitioner, v. THE SUPERIOR COURT OF FRESNO COUNTY, Respondent; NORCAL MUTUAL INSURANCE COMPANY et al., Real Parties in Interest. Docket No. S034539. Supreme Court of California. July 25, 1994. *34 COUNSEL Roger K. Vehrs, ...
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Opinion The parties in this case ask the court to determine the statute of limitations applicable to a complaint in inverse condemnation which alleges a taking of real property resulting from the adoption, or application *7 to the plaintiff’s property, of an ordinance enacted pursuant to the Subdivision Map Act. (Gov. Code, § 66410 et seq.) We conclude that an action in inver...
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Opinion Plaintiff James M. Turner asserts he was forced by his employer, defendant Anheuser Busch, Inc. (ABI), to quit his job after he complained of ABI’s alleged illegal activity. Although ABI prevailed on summary judgment in the trial court, Turner persuaded the Court of Appeal to reinstate his claim. We now consider the elements of a cause of action for constructive wrongful discharge in viol...
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Opinion — In this action we determine that the holders of a deed of trust, recorded in December of 1977, have a right to exercise the private power of sale granted in the deed of trust even though the statute of limitations has expired on the secured debt, since the date for payment of the debt does not appear in the public records. Factual and Procedural Background On December ...
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Opinion — David D. Maytag (husband) appeals an order dismissing his order to show cause (OSC) for modification of spousal support for lack of jurisdiction. The issue presented is whether the trial court had jurisdiction to modify the parties’ support agreement. For the reasons discussed below, the trial court had jurisdiction to proceed. The order therefore is reversed and the matter is remanded f...
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Opinion Procedural History On November 24, 1992, an amended information was filed in Madera County Superior Court, charging appellant Ronald Flournoy with forcible *1697 rape (Pen. Code, 1 § 261, subd. (a)(2)). The amended information contained enhancement allegations concerning convictions previously suffered by Flournoy in Madera County Superior Court case N...
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Opinion I. Plaintiffs appeal from judgments in their favor in these two consolidated personal injury actions. (Robbins v. Wong (Super. Ct. Santa Clara County, No. 663024) and Robbins v. Schmelzer (Super. Ct. Santa Clara County, No. 691893)) They claim that evidentiary rulings and attorney misconduct tainted the trial, resulting in jury verdicts which failed to compensate them for the...
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California state prisoner Lee Max Barnett, a death row inmate, appeals pro se the district court’s summary judgment in favor of corrections officials in Barnett’s 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings. I. Background In January 1992, Barnett wrote a harassing letter to the parents of ...
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Appellant Lawrence D. Caldwell, a prisoner incarcerated at the federal penitentiary in Lewisburg, Pennsylvania, appeals pro se from the district court’s ruling that his motion for judgment N.O.V. was untimely. We reverse and remand. I. BACKGROUND In 1987, Caldwell brought a civil action alleging that Appellees, U.S. Marshals, damaged personal property confiscated during a search of Caldwell...
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Roberta Charmaine Garberding is a 42-year-old Canadian citizen in the United States as a lawful permanent resident. She pleaded guilty in Montana state court to possession of more than sixty grams of marijuana, a felony. She was placed on probation and imposition of sentence was suspended for three years. When the Immigration Service learned of her criminal conviction it charged her with d...
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30 F.3d 1209 63 USLW 2131, 25 Bankr.Ct.Dec. 1513,Bankr. L. Rep. P 75,998 In re Gary Ronald PEREZ, Debtor.Frank EVERETT, Appellant,v.Gary Ronald PEREZ, Appellee. No. 92-15971. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1993.Decided July 27, 1994. Barbara Peyton, Peyton & Associates, Sacramento, CA, for appellant. Michael A. P...
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30 F.3d 1203 39 ERC 1211, 24 Envtl. L. Rep. 21,286 PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff-Appellant,v.SHOSHONE-BANNOCK TRIBES; Kelsey Edmo, Sr.; Captain J.Weisbacher, Acting Chief of Tribal Police,Defendants-Appellees. No. 92-35206. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 5, 1993.Decided July 27, 1994. David W. Kerber, Kerber ...
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30 F.3d 1191 UNITED STATES of America, Plaintiff-Appellee,v.Manuel Bustamante LOMAS, aka: Manuel Lomas Bustamante;Manuel Bustaman; Manuel Bustamante Gonzalez; ManuelBustamante; Manuel Manuel Bustamante Gonzales; PorfirioCadena; Juan Alvarado Mendoza; Martin Garary Camacho;Manuel Alvarado Gonzalez; Manuel Bustamente Lomas,Defendant-Appellant. No. 93-50655. United States Court of...
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30 F.3d 1195 UNITED STATES of America, Plaintiff-Appellee,v.Richard OLVERA, Defendant-Appellant. No. 93-50234. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 8, 1994.Decided July 27, 1994. Robert L. Swain, Swain & Vance, San Diego, CA, for defendant-appellant. Alana M. Wong, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. ...
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*1740 Opinion Introduction Appellant Phillip Patino was convicted of two counts of forcefully committing lewd and lascivious acts on a child under the age of 14 in violation of Penal Code section 288, subdivision (b). He was also convicted of two counts of false imprisonment in violation of Penal Code section 236, and one count of forcible oral copulation in violation of Penal Code section ...
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Opinion Appellant was committed to the California Youth Authority after the juvenile court found true allegations that he had committed attempted murder (Pen. Code, §§ 187, 664), and assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The court also found true allegations that appellant had personally inflicted great bodily injury (Pen. Code, ...
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Opinion by Senior District Judge McGOVERN. The Corporation appeals the district court’s denial of its motion to quash a grand jury subpoena served on its corporate counsel. The Corporation also challenges the district court’s order to submit the subpoenaed documents for in camera review to establish whether they fall within the crime-fraud exception to the attorney-client privilege. This case...
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30 F.3d 1220 63 USLW 2090, 93 Ed. Law Rep. 146 Heidi Sargent JELDNESS, Jenny Costa, Helen Jodi Bedell,Gretchen M. Schumacher, Plaintiffs, Appellants,and Cross-Appellees,v.Fred B. PEARCE, et al., Defendants, Appellees, and Cross-Appellants. Nos. 91-36271, 93-36350. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 4, 1993.Decided July 28, 1994. 1 ...
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30 F.3d 1235 Charles R. TOMLIN, Petitioner-Appellant,v.E. MYERS, Superintendent, Respondent-Appellee. No. 93-15247. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1993.Decided July 28, 1994. Gerson S. Horn, William S. Pitman, Law Offices of Gerson S. Horn, Beverly Hills, CA, for petitioner-appellant. Janet Bangle, Deputy Atty. Gen., Sacr...
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Opinion by Judge CHOY. On January 22, 1993, Appellant Patrick Hinton was convicted of one count of assault with intent to murder under 18 U.S.C. § 113(a). He was sentenced to 121 months imprisonment and three years supervised release. Hinton brings this appeal to challenge four aspects of his conviction and one aspect of his sentence. We affirm. BACKGROUND Hinton’s conviction stems from an ...
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Opinion — Frank N. Jones, Donna M. Jones and Snowcreek, Inc. (Jones), appeal from the judgment entered in favor of respondent Aetna Casualty and Surety Company (Aetna), following the order sustaining the *1721 demurrer without leave to amend to Jones’s first amended complaint for tortious breach of insurance contract. Factual and Procedural Background Our review of ...
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Opinion by Judge FARRIS; Dissent by Judge TROTT. The district court held that Albert Alshe-skie, president of Lion Manufacturing, Inc., was not liable for penalties assessed against him under 26 U.S.C. § 6672 based on Lion Manufacturing’s failure to pay its 1986 taxes in full. The government appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. The controlling law is settled. The ...
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During a search of Terrence Wayne Clark’s home, law enforcement agents discovered several firearms and numerous marijuana plants. After the district court denied his motions to suppress evidence, Clark pleaded guilty to two marijuana-related offenses. The written plea agreement preserved his right to appeal the district court’s denial of the suppression motions. Clark argues that the distr...
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Defendant Gary Lee Wickham entered a conditional guilty plea to a charge of escape from custody in violation of 18 U.S.C. § 751. He appeals the district court’s denial of his motion to dismiss the information for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq. We affirm. I. Wickham was serving a federal sentence at the Gateway Community Correctional Center in Los Angeles, Californ...
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ORDER The parties to this appeal are the Ber-nards, debtors in a Chapter 7 bankruptcy proceeding pending in the Central District of California; creditors Clement and Mary Sheaffer; and Jeffrey C. Coyne, the Chapter 7 trustee. The central question presented in the case (which will not be answered here) is whether the trustee’s objection to certain exemptions claimed by the debtors was time...
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ORDER The opinion of this court filed January 11, 1994 is withdrawn. Before: FLETCHER, REINHARDT, and NOONAN, Circuit Judges. OPINION Michael Licciardi appeals his conviction under 18 U.S.C. § 371 of conspiracy to defraud the United States by obstructing the functions of the Bureau of Alcohol, Tobacco and Firearms (the BATF); of two convictions under 18 U.S.C. § 1341 of mail fraud; and of his con...
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8 Cal.4th 68 (1994) 876 P.2d 519 32 Cal. Rptr.2d 33 In re TYRELL J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TYRELL J., Defendant and Appellant. Docket No. S030266. Supreme Court of California. July 28, 1994. *73 COUNSEL Carol A. Navone, under appointment by the Supreme Court, for Defendant and Appellant. Stuart R. Rappaport, Public Defender (Santa C...
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8 Cal.4th 100 (1994) 876 P.2d 1062 32 Cal. Rptr.2d 263 WESTERN STEAMSHIP LINES, INC., Plaintiff and Appellant, v. SAN PEDRO PENINSULA HOSPITAL, Defendant and Appellant. Docket No. S033710. Supreme Court of California. July 28, 1994. *104 COUNSEL Kussman & Whitehill, Michael H. Whitehill and Russell S. Kussman for Plaintiff and Appellant. Rushfeldt, Shelley & Drake, Allan L. Rushfeldt, Lin...
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Opinion Scottsdale Insurance Company (Scottsdale) appeals a judgment for damages and attorney fees and costs in the amount of $626,513.74 entered against it after court trial in an action by Camelot by the Bay Condominium Owners’ Association, Inc. (Camelot). Camelot brought this action for damages for breach of the covenant of good faith and fair dealing as assignee of a policyholder of S...
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*1785 Opinion — Plaintiff Hartford Casualty Insurance Company (hereafter, Hartford) appeals from the judgment entered after a court trial on stipulated facts. Hartford sued Mid-Century Insurance Company (hereafter, Mid-Century) contending it was equitably entitled to indemnity for settlement costs of $35,000 and defense costs of $26,500 in the underlying action. The trial court found that Har...
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31 F.3d 860 Tomas ARMENDARIZ; Rosa Armendariz; Harry Julian Brown,Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,v.James F. PENMAN; W.R. Holcomb; David M. Stachowski; CecilDillard; Kenneth J. Henderson, et al.,Defendants-Appellants.Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown,Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,v.James F. PENMAN; W.R. Holcomb; D...
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Opinion by Senior District Judge WILL. Dr. James W. Cleary sued News Corporation, the publishers of Robert’s Rules of Order, under the Lanham Act, 15 U.S.C. § 1125, for alleged misattribution of his work product. He also brought state law claims for unfair competition, breach of contract, and intentional or negligent infliction of emotional distress. The district court granted ...
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Mihaly and Agnes Kotasz, husband and wife, and their two children, Matyas and Erika, petition for review of the Board of Immigration Appeals’ (“BIA”) decision denying their applications for asylum and withholding of deportation. All four members of the Kotasz family are natives and citizens of Hungary. Although the BIA did not question the reliability of evidence showing that Mihaly Kotasz...
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OPINION William Rilling seeks to escape the effect of a settlement agreement he made with Burlington Northern. Burlington Northern had not told him when he signed the settlement that it was being sued in another action by a similarly situated plaintiff. The other plaintiff won, after Rilling had settled. We affirm the District Court decision holding Rilling to his agreement. Facts ...
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Opinion This juvenile dependency action commenced in January 1991 with the filing of a petition, under Welfare and Institutions Code *93section 300, subdivision (c),1 by the San Francisco Department of Social Services (the department). At that time appellant, Liana M., and her now-former husband, Edward M., were in the midst of a contentious divorce and custody dispute over their children, Katheri...
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Opinion We consider whether the Workers’ Compensation Appeals Board (Board) properly overruled a workers’ compensation judge (WCJ) and allowed “integration” of the private benefits plan of defendant employer Pacific Bell with the California workers’ compensation system, by permitting Pacific Bell a credit against an injured employee’s permanent disability indemnity for payments made to th...
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*1827 Opinion — In this appeal, we examine the merits of a judgment for compensatory and punitive damages, as well as a statutory award of attorney fees, entered in favor of the plaintiffs and respondents, Florence E. Barber (Florence) and Joe L. Barber (Joe) (collectively, the Barbers), following a six-day jury trial. The judgment was based, in substantial part, on alleged viola...
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Opinion — In this matter, we conclude that the “firefighter’s rule” bars the claim of a privately employed tow truck driver who was injured during the normal discharge of his duties at the scene of a freeway automobile accident. Plaintiffs James Holland (Holland) and Kathleen Holland, husband and wife (collectively, the Hollands), and plaintiff-in-intervention State Compensation Insu...
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Opinion In this appeal, we consider whether a public entity is required to indemnify public employees for legal fees incurred in successfully defending themselves against criminal prosecutions arising from actions taken within the course and scope of their employment. We conclude that indemnification for such criminal defense costs is discretionary on the part of the public entity rather than m...
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27 Cal. App. 4th 25 (1994) 32 Cal. Rptr. 2d 371 WILLIAM H. LOVELADY et al., Plaintiffs and Appellants, v. BRYSON ESCROW, INC., et al., Defendants and Respondents. Docket No. B072189. Court of Appeals of California, Second District, Division Six. July 28, 1994. *27 COUNSEL Nordman, Cormany, Hair & Compton, Larry L. Hines, Kent M. Kellegrew and William E. Winfield for Plaintiffs and Appellants....
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Opinion The County of Los Angeles (the County) and Zsa Zsa Maxwell, a children’s services worker (CSW) in the County’s department of children’s services (DCS), appeal from the judgment of the superior court after a jury verdict. The jury awarded the seven-year-old plaintiff, Jimmee Scott, $1,191,692 in economic damages and $1,040,000 in general noneconomic damages, for a total of $2,231,6...
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Opinion The issue presented in this case is whether a private entity in the business of selling criminal background information to the public is entitled to obtain a compilation of data from a data base maintained by the Municipal Courts of Los Angeles County, including the name, birth date and zip code of every person against whom criminal charges are pending in those courts, together wi...
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concurring: I agree with the result reached by the majority; however, I write separately to limit my holding to the unreasonableness of the officers’ conduct in detaining Curry in a semi-nude condition while they executed a search warrant. In this case, 23 members of the Portland Police Bureau, under the direction of defendant Foxworth, executed a valid search warrant based on probable cause at th...
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31 F.3d 882 18 Employee Benefits Cas. 1987 Vanessa SERRATO, an incapacitated person, by and through herguardian ad litem, Dora Serrato, Plaintiff-Appellant,v.JOHN HANCOCK LIFE INSURANCE COMPANY, Defendant,andNorton Lilly & Company, Inc. Employee Benefits Plan,Defendant-Appellee.Vanessa SERRATO, an incapacitated person, by and through herguardian ad litem, Dora Serrato, Plaintiff-Appell...
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32 F.3d 411 UNITED STATES of America, Plaintiff-Appellee,v.Thomas Lee MYERS, Defendant-Appellant. No. 94-30102. United States Court of Appeals,Ninth Circuit. Submitted July 14, 1994*.Decided Aug. 2, 1994. Stephen R. Sady, Chief Deputy Fed. Public Defender, Portland, OR, for defendant-appellant. Deborah J. Dealy-Browning, Asst. U.S. Atty., Portland, OR, for plainti...
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31 F.3d 872 UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant,andRobert Rozelle; Aaron Hampton; Freddie Mack; SheltonAuntwan Martin, Defendants-Appellees.UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee. Nos. 93-50031, 93-50057. United States Court of Appeals...
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Opinion —The Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) 1 declares, as a public policy of this state, a necessity to protect and safeguard the right and opportunity to seek, obtain, and hold employment without discrimination on various grounds, among which is age. (§ 12920.) 2 In furtherance of that policy the FEHA declares that the right to ...
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27 Cal. App. 4th 60 (1994) 32 Cal. Rptr. 2d 400 ZERREL BREEDLOVE, Petitioner, v. THE MUNICIPAL COURT FOR THE BAY JUDICIAL DISTRICT OF CONTRA COSTA COUNTY et al., Respondents; THE PEOPLE, Real Party in Interest. Docket No. A065396. Court of Appeals of California, First District, Division One. July 29, 1994. *61 COUNSEL Charles H. James, Public Defender, David C. Coleman III, Chief Assistant Public...
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Opinion Introduction The district attorney appeals from the grant of a motion to set aside an ex parte order for child support enforcement. The question presented is whether a child support order terminates by operation of law upon the death of the custodial parent. We hold that the order does not automatically terminate when the custodial parent dies. Even if the noncustodial pa...
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27 Cal.App.4th 197 (1994) 32 Cal. Rptr.2d 388 CYNTHIA DIANE LEE, Plaintiff and Appellant, v. BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, Defendant and Respondent. Docket No. G012606. Court of Appeals of California, Fourth District, Division Three. July 29, 1994. *201 COUNSEL James R. Goff for Plaintiff and Appellant. Payne & Fears, Daniel F. Fears, Timothy M. Freudenberger, Linda ...
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Louis W. Brock, currently confined pursuant to the Washington Sexually Violent Predators Act at the Special Commitment Center of the Washington State Penitentiary, appeals the district court’s dismissal of his pro se 28 U.S.C. § 2254 habeas corpus petition for lack of subject matter jurisdiction. In his petition, Brock challenges the constitutionality of his 1974 assault conviction. Although the ...
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31 F.3d 891 65 Fair Empl.Prac.Cas. (BNA) 857, 63 USLW 2163 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,v.FARMER BROTHERS COMPANY, Defendant-Appellant-Cross-Appellee,v.Diana ESTRADA, Plaintiff-Intervenor-Appellee-Cross-Appellant. Nos. 92-56012, 92-56123. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1994.Decided Aug. 3, 1994. Stephe...
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The Attorney General of California appeals the district court’s grant of habeas corpus to Michael Taylor. Taylor was convicted of first-degree murder based solely on a fingerprint of his that police found on the victim’s windowsill and the inferences drawn from that print. The district court concluded that this fingerprint was not sufficient evidence to support the conviction and granted Taylor’s...
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Marian Aldan-Pierce, Plaintiff-Appellant, appeals from a final judgment of the Supreme Court of the Commonwealth of the Northern Mariana Islands (“CNMI Supreme Court”) reversing the judgment of the Commonwealth of the Northern Mariana Islands Superior Court (“CNMI Superior Court”) in favor of Aldan-Pierce in a title dispute. We reverse and reinstate the CNMI Superior Court’s judgment. ■ I ...
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Ralph Barnett belonged to Kaiser Foundation Health Plan, Inc. (“Kaiser”), a Health Maintenance Organization (“HMO”). After consulting with various doctors about his deteriorating health condition, Barnett formally requested financial approval from Kaiser for a liver transplant. Kaiser denied Barnett coverage. Following an expedited trial, the district court denied Barnett’s request for a perman...
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Opinion JENKINS, J. * Tracy Arthur Stone appeals his conviction on numerous charges arising from his abduction of and sexual assaults on two young children. During the court trial, he stipulated to admission of one victim’s grand jury testimony and to having the sanity-phase evidence heard before the court made a finding on the guilt phase. On appeal, he contends the advisements he received...
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27 Cal. App. 4th 426 (1994) 32 Cal. Rptr. 2d 660 ANGELES ELECTRIC COMPANY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; STEVEN M. SPECTOR, Real Party in Interest. Docket No. B078927. Court of Appeals of California, Second District, Division Four. August 3, 1994. *428 COUNSEL Hunt, Ortmann, Blasco, Palffy & Rossell, Dale A. Ortmann and Paula Gerber for Petitioner. No ap...
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Opinion I. Introduction Defendant, Vaimoe Sekona, appeals from his convictions of mayhem (Pen. Code, § 203) 1 and assault with great bodily injury and with a deadly weapon (§ 245, subd. (a)(1)); plus findings he used a deadly weapon (§ 12022, subd. (b)) and had previously been convicted of a serious felony. (§ 667, subd. (a).) Defendant contends the trial court committed r...
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Opinion SUGASAWARA V. HAYASHI CORPORATION This is an appeal from an order vacating an entry of default. The order was made pursuant to section 473 of the Code of Civil Procedure. 1 Appellants contend that the motion to vacate came after the six-month period recognized by section 473. They base their argument on the claim that the period runs from the entry of default. We do not agree. The p...
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27 Cal. App. 4th 458 (1994) 32 Cal. Rptr. 2d 486 THE PEOPLE, Plaintiff and Respondent, v. JEMAL BERNARD, Defendant and Appellant. Docket No. D018363. Court of Appeals of California, Fourth District, Division One. August 3, 1994. *461 Marcia C. Levine, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Atto...
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Opinion — Juan Consuegra, Esther Consuegra, Victor Hugo Mejia and Ramon Eugenio Calderon appeal their convictions for conspiracy to possess *1730 cocaine for sale and possession of cocaine for sale, with quantity enhancements, contending: (1) the trial court erred by instructing the jury that possession for sale requires only knowledge that the drugs would be sold eventually ...
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32 F.3d 1370 63 USLW 2163, 31 Collier Bankr.Cas.2d 1136,Bankr. L. Rep. P 76,029 In re UNITED STATES TRUSTEE.Anthony G. SOUSA, U.S. Trustee, Appellee,v.Paul Anthony MIGUEL, Patricia Ann Miguel, dba Miguel DairySystems, et al., and Michael D. McGranahan,Chapter 7 Trustee, Appellant. No. 92-16496. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 14, 1994.De...
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Calvin Dayea pleaded guilty to charges of involuntary manslaughter and assault resulting in serious bodily injury, both charges stemming from an automobile accident he caused while intoxicated. He now appeals his sentence. We vacate his sentence and remand for resentencing. BACKGROUND In this case, as in too many others, the common criminal activity of drunken driving ended in tragedy. Early ...
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31 F.3d 911 Genevieve ZAMALLOA, a single person, Plaintiff, Counter-Defendant,v.Robert HART, Defendant,LIGON NATIONWIDE INCORPORATION, a Kentucky Corporation,Defendant, Cross-Claimant, Appellee-Cross-Appellant,v.KEN-RAY TRUCKING CORPORATION, a Wisconsin Corporation,Defendant, Counter-Claimant, Cross-Claimant,Appellant-Cross-Appellee. Nos. 93-15207, 93-15461. United States Court of Appe...
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27 Cal. App. 4th 503 (1994) 32 Cal. Rptr. 2d 521 FIDELITY MORTGAGE TRUSTEE SERVICE, INC., Plaintiff and Appellant, v. RIDGEGATE EAST HOMEOWNERS ASSOCIATION et al., Defendants and Respondents. Docket No. B078773. Court of Appeals of California, Second District, Division Five. August 4, 1994. *505 COUNSEL Friedlandre & Werlin, Leslie M. Werlin and Lloyd K. Chapman for Plaintiff and Appellant. L...
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27 Cal. App. 4th 489 (1994) 32 Cal. Rptr. 2d 504 LEO F. KENNEALLY et al., Plaintiffs and Respondents, v. MEDICAL BOARD OF CALIFORNIA et al., Defendants and Appellants. Docket No. B075024. Court of Appeals of California, Second District, Division Five. August 4, 1994. *492 COUNSEL Daniel E. Lungren, Attorney General, Calvin W. Torrance and Adrian K. Panton, Deputy Attorneys General, for Defendants...
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AJi Moyo, a black corrections officer with the California Department of Corrections, appeals the district court’s dismissal of his action brought pursuant to Title VII of the CM Rights Act of 1964, 42 U.S.C. § 2000e et seq. Moyo’s amended complaint alleges that he was fired by the California Department of Corrections for protesting against and refusing to cooperate with defendants’ practice of all...
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Ali Moyo, a black corrections officer with the California Department of Corrections, appeals the district court’s dismissal of his action brought pursuant to Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq. Moyo’s amended complaint alleges that he was fired by the California Department of Corrections for protesting against and refusing to cooperate with defendants’ practice of a...
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Consistent with the Supreme Court’s decision in United States v. Carlton, — U.S. -, 114 S.Ct. 2018, 129 L.Ed.2d 22 (1994), we remand to the district court for entry of judgment in favor of the United States. REMANDED. ...
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Opinion Plaintiffs Ronald Rewald (Ronald) and Nancy Rewald (Nancy; collectively plaintiffs) appeal from orders of dismissal entered in favor of defendants San Pedro Peninsula Hospital (Hospital) and Dr. Melvin Snyder (Snyder; collectively defendants) after the court sustained, without leave to amend, defendants’ demurrers to plaintiffs’ fourth amended complaint for medical malpractice and...
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27 Cal. App. 4th 578 (1994) 32 Cal. Rptr. 2d 529 THE PEOPLE, Plaintiff and Respondent, v. JOSEPH AGUERO CASTRO, JR., Defendant and Appellant. Docket No. C015195. Court of Appeals of California, Third District. August 5, 1994. *580 COUNSEL Janice M. Lagerlof, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assista...
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*561 Opinion After a court trial, appellant Otis Elevator Company (Otis) was ordered to indemnify respondent Toda Construction of California (Toda) for Toda’s payment of damages to a plaintiff who was injured in an elevator installed by Otis. On appeal (H010706), Otis contends that a contract requiring Otis to indemnify Toda was superseded by a later temporary agreement shifting ...
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Opinion Defendant lessee Eleanor Nilsson appeals from a judgment in unlawful detainer in favor of plaintiff lessor WDT-Winchester (WDT). On appeal, Nilsson makes the following claims: (1) the trial court abused its discretion when it denied her request for relief from jury trial waiver; (2) the trial court erred in relying upon Code of Civil Procedure 1 section 1161.1 as that p...
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In this appeal, we must decide whether the bankruptcy court properly dismissed this case for failure to prosecute under Fed. R.Civ.P. 41(b). We have jurisdiction under 28 U.S.C. § 1293(a). Because we find dismissal warranted in this case, we affirm the decision of the Bankruptcy Appellate Panel, which affirmed the bankruptcy court’s dismissal of the action. I. FACTS AND PRIOR PROCEEDINGS ...
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OPINION Arthur Hobbs appeals his conviction based on a conditional guilty plea for possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). Hobbs contends that the district court abused its discretion by precluding two defense witnesses from testifying at a suppression hearing after the witnesses violated a witness sequestration order. We have jur...
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Michael Thomas appeals his conviction and sentence for twenty counts of mail fraud in violation of 18 U.S.C. §§ 371 and 1341. The alleged fraud occurred when the defendant reported false prices to his customers in the course of his produce marketing operations. We reverse and remand for a new trial, because we find that the district court erred in limiting the evidence that defendant was permitte...
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Opinion HANING, J. Appellant Keet Nerhan, doing business as KN Properties (Nerhan) appeals the dismissal of his petition for writ of mandate to compel granting of a zoning variance. Respondent Stinson Beach County Water District’s demurrer was sustained without leave to amend on the grounds that the petition failed to state a claim because appellant did not own the subject property. W...
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27 Cal. App. 4th 551 (1994) 32 Cal. Rptr. 2d 676 MICHAEL APPELTON, Plaintiff and Appellant, v. CHRISTOPHER PERRY WAESSIL, Defendant and Respondent. Docket No. B074938. Court of Appeals of California, Second District, Division Two. August 5, 1994. *553 COUNSEL Vana Parler Margolese for Plaintiff and Appellant. Grace, Skocypec, Cosgrove & Schirm, Philip R. Cosgrove, Patricia M. Coleman and Lisa...
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Opinion Appellants Paul S. (father) and Marlene B. (mother) appeal from a judgment terminating their rights to parent their four minor children. They contend the judgment must be reversed because they were not provided with adequate reunification services. Mother also contends the minors should have been returned to her at the time of the permanency planning hearing, that she was wrongfully dep...
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Opinion Alan H. appeals after the court changed his dependent daughter Autumn H.’s permanent plan from long-term foster care to adoption and terminated Alan’s parental rights under Welfare and Institutions Code1 section 366.26. Alan contends the exception to termination of parental rights in section 366.26, subdivision (c)(1)(A), is unconstitutionally vague because it does not define the word “ben...
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Opinion by Chief Judge WALLACE. On this appeal, we consider whether a party that sells spent automotive batteries to a lead reclamation plant may be liable under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601 et seq., for the costs of cleaning up the property where lead-containing remnants of the batteries are eventua...
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LaBarbara Poletti (“Petitioner”) is a mixed-blood Ute Indian who in 1983 received from the Ute Distribution Corporation (“UDC”) distributions of monies generated by oil, mineral, and gas production on the Ute Indian Reservation. Representing herself and the estate of her late husband, Robert Poletti, Petitioner appeals the decision of the tax court which found that the distributions received by...
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On October 22,1990, Appellant Joseph Pa-lomba (Palomba) was convicted of mail fraud, wire fraud and making false statements to a federal agency, in violation of 18 U.S.C. §§ 1341, 1343 and 1001. He was sentenced to 71 months imprisonment and three years supervised release. Palomba challenges his conviction on the basis of ineffective assistance of counsel and the district court’s lack of subjec...
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Opinion by Judge KOZINSKI; Dissent by Judge ZILLY. There may be no loyalty among thieves, but there sometimes is among drug dealers. When called by the government, such witnesses occasionally change their story. The principal issue raised in these consolidated appeals is whether and when their inculpato-ry out-of-court statements may be admitted in the teeth of a hearsay objection. I Some days not...
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Opinion We affirm the trial court’s order denying Code of Civil Procedure section 473 (hereafter section 473) relief for plaintiffs’ failure to timely file a motion to tax costs. *289 Background Plaintiffs Teri and Richard Douglas attended counseling for several years at the Family Counseling Center. Eventually learning that the counselor, Miriam Tarsky, was unlicensed,...
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33 F.3d 1047 Miguel Angel GONZALEZ, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee. Nos. 92-36820, 92-36821. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1993.Decided Aug. 11, 1994. Constance Crooker, Portland, OR, for petitioner-appellant. Charles F. Gorder, Jr., Asst. U.S. Atty., Portland, OR, for respondent-app...
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31 F.3d 1478 1994-2 Trade Cases P 70,679 John Phillip SMITH, Plaintiff-Appellant,v.William B. RICKS, et al., Defendants-Appellees.John Phillip SMITH, Plaintiff, Jerome Berg, Esq., Appellant,v.William B. RICKS, et al., Defendants-Appellees.John Phillip SMITH, Plaintiff-Appellant,v.William B. RICKS, et al., Defendants-Appellees.John Phillip SMITH, Plaintiff-Appellant,v.William B. RICKS, et ...
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Opinion A jury found Raymond Edward McLemore guilty of the sale of cocaine. (Health & Saf. Code, § 11352, subd. (a).) A separate jury found him guilty of petty theft. (Pen. Code, § 484.) In a bifurcated proceeding the court found he had suffered prior convictions for theft. (Pen. Code, § 666.) Defendant was sentenced on both convictions simultaneously. Defendant appealed from both judgmen...
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*596 Opinion Plaintiff acquired title to thousands of acres of ranchland in southern Santa Clara County in 1965. Though not separately described in the deed, the three parcels at issue herein were part of the land included in this 1965 grant deed, and the deed did not purport to merge the separate and distinct individual parcels within the deeded property. In 1991, plaintiff applied for certi...
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Edward Darnell Fondren appeals his sentence after a conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He was sentenced to the ■ mandatory minimum of fifteen (15) years under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). We have jurisdiction over this timely appeal and AFFIRM. Fondren raises only one issue on appeal. He challenges the valid...
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Opinion Petitioner, R. Clark Davis (Davis), seeks a writ of mandate directing the superior court to set aside an order denying his motion to strike that portion of real party in interest’s complaint praying for punitive damages. Real party, Carlos Fuentes, sued three physicians, including Davis, all of whom treated him after he was injured during the course and scope of his employment. Also n...
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Opinion These appeals from the judgment of dissolution of the 22-year marriage of Claudia Nichols (wife) and Richard Nichols (husband) *664 and from a postjudgment order awarding attorney fees and costs center on a dispute over the value of a community asset, husband’s shareholder interest in his law firm. Wife’s expert valued the interest by determining the book value o...
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This case, of first impression in any circuit, turns on whether license fees, paid by a licensee for the use of technology, patents, and proprietary rights, are “royalties” within the meaning of 11 U.S.C. § 365(n)(2)(B) and, as such, must continue to be paid after the licensor in bankruptcy has exercised its statutory right to reject the contract. FACTS With slight alterations we adopt the ...
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This appeal arises out of various transactions involving the Adam Grant building, 114 Sansome Street, San Francisco, where appellant, the law firm of Pillsbury, Madison & Sutro (Pillsbury), rents office space, and the effect of those transactions on the amount of rent to be paid by Pillsbury. Pillsbury appeals the district court’s Fed.R.Civ.P. 12(b)(6) dismissal for failure to state a claim of its...
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Congress passed a law requiring true odometer disclosures on transfers of vehicles. The Secretary of Transportation wrote a regulation exempting large trucks. We hold that the regulation is invalid. FACTS Orea Bay Seafoods bought a truck in which the odometer showed much less than the true mileage, so it sued the used truck dealer from which it bought the truck, Northwest Truck Sales, and the...
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Kent Harper was convicted of mail fraud, equity skimming and conspiracy to commit mail fraud and equity skimming. See 18 U.S.C. §§ 371 and 1341; 12 U.S.C. § 1709-2; 18 U.S.C. § 2. He claims that the district court erred in determining the amount of his victims’ losses when it calculated his Guideline score. Thus, he appeals from his sentence. 1 Because we agree with his co...
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James Anthony Pruitt appeals the denial of his federal habeas corpus action pursuant to 28 U.S.C. § 2255, attempting to set aside *432 his sentence as imposed in violation of the Constitution of the United States. We affirm the denial of his motion. PROCEEDINGS Pruitt was indicted on September 19, 1990 for conspiracy to possess methamphetamine with intent to distribute and for the possess...
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Opinion by Judge THOMPSON; Dissent by Judge SNEED. First Capital Holdings Corporation (FCH), through its subsidiaries, issued annuities and life insurance policies to over 500,-000 policyholders. Shearson Lehman Brothers, a wholly-owned subsidiary of Shearson Lehman Brothers Holdings, which is a wholly-owned subsidiary of American Express Company, issued many of the policies. In Máy 1991, FCH fel...
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Opinion The ultimate legal question presented in this litigation is this: Did the City of Berkeley Rent Stabilization Board (Board) abuse its discretion, by exceeding the authority and powers imposed by its enabling ordinance, when it adopted new regulations it contends were designed to avoid unconstitutional confiscatory effects on landlords and to ensure landlords fair and reasonable levels of ...
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27 Cal. App. 4th 700 (1994) 34 Cal. Rptr. 2d 10 GEORGE CRESPIN et al., Plaintiffs and Respondents, v. MOLLY COYE, as Director, etc., et al., Defendants and Appellants. Docket No. A061044. Court of Appeals of California, First District, Division One. August 12, 1994. *702 COUNSEL Daniel E. Lungren, Attorney General, and Charlton G. Holland III, Assistant Attorney General, for Defendants and Appell...
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27 Cal.App.4th 641 (1994) 32 Cal. Rptr.2d 624 ANNETTE J. BRUN, Plaintiff, v. STEVEN D. BAILEY, Defendant and Appellant; MICHAEL D. HANLEY, Movant and Appellant. Docket No. C011911. Court of Appeals of California, Third District. August 11, 1994. *645 COUNSEL Favor Moss & Enochian, Steward C. Altemus and J. Michael Favor for Defendant and Appellant. Halkides & Morgan and Annette R. Skene for Movan...
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Opinion Landlord S. James Bevill prevailed in an unlawful detainer action against his tenant Latif Zoura. Zoura appeals, asserting defects in the three-day notice to pay rent or quit. We reverse the judgment. Factual Background In August 1989, Bevill, the owner of a Chula Vista shopping center, entered into a commercial lease agreement with Zoura. On November 25, 1992, Bevill served Zoura w...
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*718 Opinion Appellants San Joaquin Raptor/Wildlife Rescue Center and John Mataka appeal from the judgment entered denying their complaint and petition for writ of mandate challenging the approval by respondent County of Stanislaus (County) of a proposal by respondent Arambel and Rose Development, Inc. (Arambel), to build a residential development near the existing community of G...
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33 F.3d 34 1994-2 Trade Cases P 70,693, RICO Bus.Disp.Guide 8620 CUBIC CORPORATION, a Delaware Corporation, Plaintiff-Appellant,v.INSURANCE COMPANY OF NORTH AMERICA, a PennsylvaniaCorporation; Continental Insurance Company, a New HampshireCorporation; United States Fidelity & Guaranty Company, aMaryland Corporation; Hartford Insurance Company, anIndiana Corporation, Defendants-Appe...
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We consider two technical but important questions of bankruptcy law: (1) Are state court findings that the debtor committed fraud and breach of fiduciary duty binding on the debtor in dischargeability proceedings? And, (2) does Bankruptcy Code section 523(a)(4) preclude discharge of punitive damages? A. Bugna and McArthur were business partners. Bugna, a licensed real estate broker, agreed...
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John David Roettgen, an Arizona state prisoner, appeals pro se the district court’s dismissal of his 28 U.S.C. § 2254 petition for habeas corpus. The district court determined that Roettgen had not fairly presented his claims to the Arizona Supreme Court, and dismissed his petition for failure to exhaust available state remedies. We have jurisdiction pursuant to 28 U.S.C. § 2253, *38 ...
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171 B.R. 79 (1994) In re GOLDEN TRIANGLE CAPITAL, INC., Debtor. GOLDEN MORTGAGE FUND # 14, a joint venture, Appellant, v. James KENNEDY, Trustee of Golden Triangle Capital, Inc., Appellee. BAP No. SC-92-1545-AsVO. Bankruptcy No. 91-05063-H7. Adv. No. 91-90441-H7. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted November 17, 1993. Decided July 28, 1994. *80 Jean ...
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Opinion —This case reaches us again after a retrial following this court’s reversal of defendant’s conviction and death sentence. In reversing, we concluded that the prosecution failed to sustain its burden of showing that the challenged prospective jurors were not excluded because of group bias, and the trial court failed to discharge its duty to inquire into and carefully evaluate the prosecuto...
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Opinion Introduction Henry De Rosans (appellant) appeals from a conviction of second degree robbery and three related offenses. His principal contention is that the trial court erred in denying his challenge to the jury panel as unrepresentative of the community and in also denying his motion for a continuance for the purpose of complying with the procedural requirements for the ...
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32 F.3d 1399 EXXON CORPORATION, Plaintiff-Appellant-Cross-Appellee,v.Harold C. HEINZE; Charles E. Cole, Attorney General for theState of Alaska; Ronald Swanson, Director of the Divisionof Lands; James E. Eason, Director of the Division of Oiland Gas, Defendants-Appellees-Cross-Appellants. Nos. 92-35266, 92-35323. United States Court of Appeals,Ninth Circuit. Argued and Submitted...
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The parents of an emotionally and learning disabled student, referred to as “Student W.,” appeal from summary judgment for defendant Puyallup School District, No. 3 (hereinafter “District”) and a denial of their request for attorney’s fees. The parents brought suit under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. §§ 1400 et seq., after their claims were dismissed by an ...
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We must decide whether an insurer may be estopped from denying disability coverage for unreasonable delay in processing the insured’s application. I In January 1989, Paul Ranes, a surgeon living in Washington State, applied for disability insurance with Paul Revere Life Insurance Company. The application had two parts. Part I required general health and financial information, which Ra...
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Opinion Thomas Pace appeals from a jury determination that he is a mentally disordered offender (MDO; see Pen. Code, § 2960 et seq.). The effect of this order is that he will be an “inpatient” unless the State Department of Mental Health certifies to the Board of Prison Terms that there is reasonable cause to believe appellant can be safely and effectively treated as an outpatient. (Pen. Code, ...
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27 Cal.App.4th 832 (1994) 33 Cal. Rptr.2d 438 MARK SAUNDERS et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; CALIFORNIA REPORTING ALLIANCE et al., Real Parties in Interest. Docket No. B080453. Court of Appeals of California, Second District, Division Seven. August 16, 1994. *836 COUNSEL Brobeck, Phleger & Harrison, James L. Miller, Thomas M. Peterson, Meredith N. ...
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Opinion Parties enter into an agreement for the sale and purchase of a note. After the sale, the purchaser sues the seller for breach of *791 contract, fraud, conspiracy and restitution. Seller prevails on all causes of action relating to the sale of the note. The trial court, however, finds that a payment due on the note was wrongfully received by seller after the close of escrow. The trial ...
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Opinion In her petition for writ of mandate Sondra Wilcox, a cross-defendant below, challenges the ruling of the trial court denying her motion to strike the cross-complaint against her for damages and injunctive relief based on restraint of trade and defamation. The motion to strike was based on California’s anti-SLAPP (strategic lawsuits against public participation) suit statute (Code ...
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Opinion This appeal by the Building Industry Association of San Diego, Inc., a California nonprofit corporation (BIA), presents questions as to the validity of a residential growth control initiative, chapter 32A of the City of Oceanside Municipal Code, commonly known as Proposition A (Prop. A), adopted by the voters of the respondent City of Oceanside (the City or Oceanside). Actions for...
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CIIF Associates, a Massachusetts general partnership (CIIF), appeals the grant of a preliminary injunction in favor of Century Southwest Cable Television Inc., a Delaware corporation (Century). The case, of first impression in this circuit, involves the rights of an apartment owner to exclude a franchised cable television operator from servicing its apartments. We reverse the grant of the preli...
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I. INTRODUCTION This ease involves the question whether the Bankruptcy Appellate Panel (“BAP”) properly directed that a bankruptcy court order be dismissed for lack of jurisdiction. The BAP held that (i) the bankruptcy court lacked jurisdiction to turn over the sale proceeds of the debtor’s homestead property to his ex-wife’s lawyer, but that (ii) it was nevertheless proper for the lawyer to ke...
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The government appeals from a district court judgment in favor of the bankruptcy trustee and against the Internal Revenue Service (IRS). The government contends that a claim for tax liabilities retains its priority status under 11 U.S.C. § 507(a)(7) and its position in the order of distribution under section 726(a)(1) regardless of when proof of the claim is filed. The district court had jurisdic...
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Charles and Glenna Jo Canum Ward appeal a summary judgment for Westinghouse Canada, Inc. and Westinghouse Electric Corporation (Westinghouse) in the Wards’ diversity action for personal injury and loss of consortium. The court concluded that the Wards’ claim was barred by California’s one-year statute of limitations for personal injury actions, Cal.Civ.Proe.Code § 340(3) (Deering 1991). Ward v. We...
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Opinion Plaintiffs Israel Freeman and Dean M. Williams appeal from the judgment entered following the trial court’s granting the City of Beverly Hills’ motion for summary judgment. We affirm. Factual and Procedural History In May 1986, plaintiff Freeman became owner and operator of Dolores’ Restaurant in the City of Beverly Hills (City). In June 1987, plaintiff Williams entered into partn...
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Opinion The trial court sustained a demurrer without leave to amend and dismissed the complaint as to one defendant (Thomas J. Patterson) and sanctioned plaintiff (Mark S. Simonian) and his attorney (Gordon J. Zuiderweg) $2,500 for their frivolous tactics taken solely to harass Mr. Patterson. (Code Civ. Proc., § 128.5.) Both plaintiff and his attorney have appealed. This litigation c...
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Opinion At issue in this appeal is the applicability and scope of the “impostor rule,” which makes an indorsed check effective if the drawer was induced to issue the check by an impersonator of the payee. (Cal. U. Com. Code, § 3404, subd. (a); Cal. U. Com. Code, former § 3405, subd. (l)(a).) Plaintiff Title Insurance Company of Minnesota contends the trial court erroneously applied this r...
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OVERVIEW In 1963, Gregory Powell and his co-defendant kidnapped two Los Angeles police officers and drove them to a field outside of Bakersfield, California. Rather than releasing the officers as he had promised, Powell shot at both officers. One officer died of the wounds and the other officer escaped. After two trials, a Los Angeles County Superior Court jury convicted Powell of first deg...
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Stacey Koon and Laurence Powell (“appellants”) appeal their jury convictions for deprivation of rights under color of state law in violation of 18 U.S.C. § 242. The United States appeals Koon’s and Powell’s sentences under the Sentencing Guidelines. We affirm the convictions but remand for resentencing. BACKGROUND The arrest of Rodney King occurred in the early morning of March 3,1991...
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Robert Roth pleaded guilty to one count of conspiracy to manufacture and possess methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846. The plea agreement reserved to Roth his right to appeal the legality of any sentence imposed. Roth cooperated with and provided substantial assistance to the authorities, and as a result the government moved at sentencing for ...
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8 Cal.4th 216 (1994) 878 P.2d 566 32 Cal. Rptr.2d 807 20th CENTURY INSURANCE COMPANY et al., Plaintiffs and Respondents, v. JOHN GARAMENDI, as Commissioner, etc., Defendant and Appellant. 20th CENTURY INSURANCE COMPANY et al., Plaintiffs and Respondents; v. JOHN GARAMENDI, as Commissioner, etc., Defendant and Appellant; VOTER REVOLT, Intervener and Appellant. HARTFORD STEAM BOILER INSPECTION AND ...
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*903Opinion Plaintiff Goodstein appeals from a September 11, 1990, order granting defendant’s motion to recover expert witness fees, awarding fees and costs of $138,421, and denying plaintiff’s motion to tax costs. On appeal, plaintiff challenges the trial court’s award of expert witness fees under Code of Civil Procedure section 998 and the cost award on several grounds. Factual and Procedural Ba...
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Opinion A jury found appellant, Enrique Diaz Sanchez, guilty of aiding and abetting the manufacture of methamphetamine in violation of Health and Safety Code 1 section 11379.6 because he permitted his ranch to be used as the location for a methamphetamine laboratory. In addition, the jury found true the 10-year enhancement allegation that the amount of methamphetamine exceeded 10 pounds (§ 11...
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The United States appeals the district court’s decision (1) affirming a bankruptcy court order directing payment of an outstanding Claims Court judgment owed to chapter 7 debtor Cascade Roads, Inc.; (2) upholding a bankruptcy court award of sanctions against the government for willful violation of the automatic stay; and (3) granting attorneys’ fees and costs to Cascade for its appeal from the ...
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32 F.3d 1415 Linda MARTINEZ; Gilbert Acosta; Aurora Acosta; City ofLos Angeles Area Agency on Aging; International Instituteof Los Angeles; Altamed; Watts Labor Community ActionCommittee; Associacion Nacional Pro Personas Mayores;National Caucus and Center on Black Aged; NationalPacific/Asian Resource Center on Aging; National IndianCounsel of Aging, Inc.; City of San Francisco; Cou...
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This case involves an environmental challenge to a timber sale and harvest, known as the Gatorson Sale, in the Colville National Forest in Washington. The United States Forest Service has authorized the sale to Vaagen Timber Products, a logging company. The plaintiff-appellant, Mitchell Smith, a frequent recreational user of the area affected by the sale, sued both the Forest Service and Vaagen...
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Opinion This appeal presents a single narrow question: when a statute requires the superior court to award “reasonable attorney’s fees,” may a local court rule limit the amount of that award? Specifically, the court determined a “reasonable” fee was $65,000. However, San Diego County Superior Court Rules, 1 rule 6.1 provided that in contested actions no attorney fees could be a...
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*856 Opinion Anne Rizzo and Thomas Thai appeal a summary judgment entered against them in favor of defendants the Board of Trustees of the California State University System, Barry Munitz, Chancellor of the California State University System, and Thomas Day, President of San Diego State University, and intervener Associated Students, San Diego State University. In 1969, the ...
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*929 Opinion This appeal arises out of a slander of title action initiated by plaintiffs in June 1983. Plaintiffs prevailed at a jury trial, but this court reversed and remanded for a new trial on defendant’s statute of limitations defense because the trial court had failed to instruct the jury that the knowledge of plaintiffs’ attorney was imputed to plaintiffs. After remittitur...
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Alaska Sportfishing Association and four individual sportfishers (hereinafter “plaintiffs” or “sportfishers”) appeal the dismissal of their class action complaint against Exxon Corporation, et al., seeking damages for loss of use and enjoyment of natural resources resulting from the 1989 Exxon Valdez oil spill. The district court held that the doctrine of res judicata barr...
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ORDER The opinion filed April 25, 1994, slip op. 3973, and appearing at 22 F.3d 909 (9th Cir.1994), is withdrawn. The petition for rehearing, filed May 24, 1994, is denied. OPINION Byron Paredes-Urrestarazu (“Petitioner”) petitions this court for review of a decision of the Board of Immigration Appeals (“BIA” or “Board”) that found him deportable under section 241(a)(2)(A)(...
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*942 Opinion Donald Washington, an inmate at Pelican Bay State Prison, appeals from his convictions of battery by an inmate on a noninmate (Pen. Code, § 4501.5), resisting arrest (Pen. Code, § 148) and assault likely to produce great bodily injury (Pen. Code, § 245). Washington contends (1) that he was deprived of his right to a Marsden hearing (People v. Marsden (1970) 2 Cal.3d 118 [84...
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Opinion May evidence of statements made during mediation be admitted in court to prove the parties orally settled the dispute? The trial *1008court concluded it may. We disagree. Admission of such evidence violates the prohibition of Evidence Code section 1152.5 which protects statements made in mediation from use in litigation. Accordingly, we reverse. Facts and Procedure In 1989, plaintiffs Dona...
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dissenting: Although I agree with the majority that the videotaped interview between Proctor and Heather was not admissible pursuant to the medical diagnosis exception, I dissent from the majority’s conclusion that Heather’s videotaped statements were not admissible pursuant to the residual exception because they lacked particularized guarantees of trustworthiness. The Supreme Court has held that ...
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27 Cal. App. 4th 1079 (1994) 33 Cal. Rptr. 2d 163 JOHN R. JOHNSON, Plaintiff and Appellant, v. FIRST STATE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. B073879. Court of Appeals of California, Second District, Division Six. August 23, 1994. *1080 COUNSEL Kircher & Nakazato and C. William Kircher, Jr., for Plaintiff and Appellant. Hawkins, Schnabel, Lindahl & Beck and K...
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Opinion Introduction In a lawsuit filed against defendants and respondents, James S. Gordon, M.D., and his partners in medical practice, Marki J. Knox, M.D., Karen Blanchard, M.D., and Associates, Inc., and the Women’s Medical Group of Santa Monica, a California general partnership, plaintiff and appellant, Jean R. Kerins, sought general and punitive damages, including health car...
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Opinion The courts try to provide a semblance of certainty in an otherwise uncertain world. Perhaps that is why judges are reputed to feel uncomfortable about making educated guesses. Such discomfort is *1088 unwarranted when a judge must decide whether a settlement is made in good faith. In such cases judges are required to make educated guesses. Here we hold that the t...
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I. INTRODUCTION The Internal Revenue Service (“IRS”) appeals the district court’s decision on an appeal from a bankruptcy court decision involving the Chapter 11 proceedings of Chugach Alaska Corporation (“Chugach”). This appeal addresses two issues, each of which requires us to interpret section 60(b)(5) of the Deficit Reduction Act of 1984, Pub.L. No. 98-369, 98 Stat. 494, 579 (1984) (“DEFRA ...
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These consolidated appeals require us to decide a previously unresolved question of federal consumer protection law: Whether it is lawful for a seller to represent a product as “effective” when its efficacy results solely from a “placebo effect.” 1 We conclude that the answer is no and that the representation constitutes a “false advertisement” under the Federal Trade Commission Act....
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27 Cal.App.4th 946 (1994) 33 Cal. Rptr.2d 27 In re STERLING B. SCOTT II on Habeas Corpus. Docket No. A065063. Court of Appeals of California, First District, Division Four. August 23, 1994. *947 COUNSEL Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Kenneth C. Young, Assistant Attorney General, Karl S. Mayer and Susan J. King, Deputy Attorneys General, f...
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Opinion Forest Place Residential Health, a business entity licensed to operate a residential care facility, and its management company, Superior *1019 Care Facilities, petition for a writ of review of the Workers’ Compensation Appeals Board (Board) order compelling them to provide the applicant, Ramona Calderon, her statutory remedies for her wrongful termination following a work-related inju...
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Appellant GC Micro Corporation brought an action under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(a)(4)(B), challenging appellee Defense Logistics Agency’s (“the DLA”) denial of access to certain records that the DLA maintains regarding the utilization, of small disadvantaged businesses by federal defense contractors. The district court granted summary judgment in favor of the DLA,...
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In this diversity action, Mariann Hopkins sued Dow Corning Corporation to recover for injuries suffered as a result of two sets of breast implants manufactured by Dow, which she received in breast reconstruction surgeries in 1977 and 1986. The jury found Dow liable for Hopkins’ injuries and awarded Hopkins $840,000 in compensatory damages and $6.5 million in punitive damages. Dow appeals. ...
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Lorna Kreines appeals from an order denying her post-judgment motion for attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (1988). The district court ruled that because Kreines prevailed in her civil action against two federal officers in their individual capacities, she is not entitled to attorney’s fees under the EAJA. Kreines v. Un...
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Appeal from the United States District Court for the Eastern District of California. I. FACTUAL AND PROCEDURAL BACKGROUND Appellant John Hanoum was convicted after a jury trial of conspiring to manufacture and distribute methamphetamine, manufacturing and aiding and abetting the manufacture of methamphetamine, possession with intent to distribute methamphetamine, and the use of a fir...
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OPINION A secured creditor filed a motion for relief from the automatic stay under § 362(d)(1) and (2). 2 Since there was no equity in the property and the debtor’s plan was uncon-firmable as a matter of law, the bankruptcy court granted the motion for relief under § 362(d)(2). The debtor appeals. We AFFIRM. I. FACTS The debtor/appellant, Sun Valley Newspaper, Inc...
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Opinion Statement of the Case * Procedural History Petitioner James Jones was charged by an amended information with committing the following offenses in Kern County: counts I and V, burglary; *1035 counts II and VI, receiving stolen property; count III, possession of a firearm by a felon; and count IV, possession of a short-barreled rifle. The amended information, People v. Jones (Supe...
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The executor of Dr. Doe’s estate (Doe) appeals from the district court’s judgment, after a nonjury trial, denying Doe’s claim for damages under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Act). The district court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I Doe, who died in 1992, wa...
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Emily Oatman challenged the Department of Treasury’s refusal to return her share of a joint tax refund, which it withheld to satisfy her husband’s past-due child support. She filed her action individually and on behalf of a class of similarly situated taxpayers. The district court dismissed for lack of jurisdiction, 814 F.Supp. 912. We vacate the judgment and remand. 1 FACTS AND PRIOR PROCEED...
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34 F.3d 790 65 Fair Empl.Prac.Cas. (BNA) 1195,65 Empl. Prac. Dec. P 43,238, 74 A.F.T.R.2d 94-6115,63 USLW 2142, 94-2 USTC P 50,455 John A. SCHMITZ, Mary B. Schmitz, Petitioners-Appellees,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. No. 93-70960. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 11, 1994.Decided Aug. 30, 1994. Gary...
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Trina Devay Harper and Aziz Sharrieff appeal their convictions for conspiracy in violation of 18 U.S.C. § 371, attempted bank robbery in violation of 18 U.S.C. § 2113(a), and carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). Harper and Sharrieff both assert that the district judge denied them their right to exercise the full complement of perem...
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Lali Sorrentino Pimentel appeals the 23-month sentence imposed after her convictions, following a jury trial, for one count of *800 conspiracy and eight counts of subscribing and presenting false statements in immigration amnesty applications in violation of 18 U.S.C. §§ 2(a), 371, 1546(a). She contends the district court erred by failing to group pursuant to U.S.S.G. § 3D1.2 all counts of conv...
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OPINION Richard Bracey (“Bracey”), a former chapter 7 debtor, appeals an order of the bankruptcy court holding that the appellee, the California Franchise Tax Board (“FTB”) did not violate the discharge injunction provisions of section 524 by attempting to collect delinquent prepetition taxes. The issue centers on whether the taxes were discharged in Braeey’s chapter 7 case. For the r...
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Opinion Respondent Antonio Vianna sued The Doctors’ Management Company (Doctors) and three individuals for damages arising out of the termination of his employment with Doctors. Doctors appeals from an order denying its petition to compel arbitration pursuant to Code of Civil Procedure section 1281.2. 1 We reverse. I. Vianna began his employment at Doctors on May 29, ...
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The United States appeals from the decision of the district court granting summary judgment in favor of James and Joan Flood in their claim for an income tax refund. The sole issue before us is whether the amount of investment interest that could be carried forward under § 163(d) of the Internal Revenue Code in effect between 1983 and 1986, 1 26 U.S.C. § 163(d), was limited by the ta...
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In this case, we consider issues arising from chapter 11 debtor Acequia, Inc.’s ten-year effort to recover certain prebankruptcy conveyances made to Vernon Clinton, founder and former controlling shareholder of the corporation. Clinton appeals the magistrate judge’s determination that he fraudulently transferred Acequia’s assets to himself. Acequia, now under the control of adverse parties, cross-...
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34 F.3d 1469 65 Fair Empl.Prac.Cas. (BNA) 1132,65 Empl. Prac. Dec. P 43,198, 63 USLW 2150 Volker Keith MEINHOLD, Plaintiff-Appellee,v.UNITED STATES DEPARTMENT OF DEFENSE; United StatesDepartment of the Navy, Defendants-Appellants.Volker Keith MEINHOLD, Plaintiff-Appellee,v.UNITED STATES DEPARTMENT OF DEFENSE; United StatesDepartment of the Navy, Defendants-Appellants. Nos. 93-55242, ...
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35 F.3d 382 63 USLW 2244, 18 Employee Benefits Cas. 1982 Shirley SALTARELLI, individually and as the Administrator ofthe Estate of Joseph Saltarelli, Plaintiff,v.The BOB BAKER GROUP MEDICAL TRUST; All-AmericanChevrolet-Geo; Bob Baker Enterprises, Inc.,Defendants-cross-claimants-Appellants,v.DAVE HAGEN FACTORS, INC., d/b/a VIP Chevrolet;Downtown/Future Ford Health Protection Plan,Defendan...
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33 F.3d 1159 ST. PAUL FIRE & MARINE INSURANCE COMPANY,Plaintiff-Appellant-Cross-Appellee,v.AMERICAN BANK, f/k/a Western State Bank, a Montana BankingCorporation; Northern Lines Layers, Inc., aMontana Corporation,Defendants-Appellees-Cross-Appellants. Nos. 92-35319, 92-35368. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1993.Decided Aug. 31, 1994....
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Richard Dota appeals his conviction and sentence for conspiracy, murder for hire, and use of a firearm during a crime of violence. We affirm. FACTS Though disputed in some instances, testimony showing the following facts was presented at Dota’s jury trial. Julius Sehill was president of APS, a company that made and sold self-operated photo booths and business card machines. Cynth...
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Opinion by Judge T.G. NELSON; Partial Concurrence and Partial Dissent by Judge FERGUSON. I OVERVIEW Sergio Moreno-Flores (Moreno-Flores) and Sergio Alberto Rodriguez-Molina (Rodriguez-Molina) appeal their jury convictions for conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. § 846 (count one), and attempt to possess cocaine with intent to distribute in violation of ...
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Mavety Media Group Ltd. appeals the May 5, 1993 decision of the Trademark Trial and Appeal Board (Board) of the United States Patent and Trademark Office (PTO) affirming the Examiner’s refusal to register Mavety’s trademark because it comprises immoral or scandalous matter under 15 U.S.C. § 1052(a) (1988). In re Mavety Media Group Ltd., Ser. No. 74/066,893 (TTAB May 5, 1993). We vaca...
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Opinion Plaintiff, Jaime Perez, appeals from an order of dismissal after the trial court sustained without leave to amend the demurrer to his first amended complaint for negligence. We conclude that Perez has failed to state a cause of action because the defendant, the City of Los Angeles (hereinafter, the city), is statutorily immune from suit for injury from the hazardous recreational activit...
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27 Cal. App. 4th 1427 (1994) 33 Cal. Rptr. 2d 190 BORIS KORBEL, Plaintiff and Respondent, v. SHEUNG-CHI CHOU et al., Defendants and Appellants. Docket No. G014897. Court of Appeals of California, Fourth District, Division Three. August 30, 1994. *1429 COUNSEL Callahan, McCune & Willis, George W. Coleman, Brown & Brown and John J. Tasker for Defendants and Appellants. John A. Barclay and J...
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Opinion In this action by Sea World, Inc. (Sea World) for refund of property taxes paid in 1989, we revisit the fascinating world of real property reassessments after the passage of Proposition 13 1 to determine whether the trial court properly granted the County of San Diego’s (County’s) motion for summary judgment. The court held that Sea World had failed to exhaust its admin...
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34 F.3d 825 29 Fed.R.Serv.3d 1225 Sebastian BENAVIDEZ; Enrique Reyes, Jr.; Shirley Castillo;Dolores Marques; Jose C. Casio; Thomas Requejo; EstherEstrada; Jose Armando Villejas; Martin Gutieruiz; Tony DeLa Rosa; Carmen De La Rosa; Luis Hernandez,Plaintiffs-Intervenors-Appellants,andMembers of the California Democratic CongressionalDelegation, Plaintiffs,v.March Fong EU, Secretary...
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The Board of Immigration Appeals (BIA) summarily dismissed petitioner Luis Alberto Gonzalez-Julio’s appeal of an Immigration Judge’s deportation order on the basis that the appeal was untimely filed. Gonzalez-Julio petitions for review of the dismissal, joined by amicus curiae American Immigration Lawyers Association, Hawaii Chapter, claiming that the regulations for filing notices of appeal vi...
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35 F.3d 388 25 Envtl. L. Rep. 20,291 NATIVE VILLAGE OF QUINHAGAK; Native Village of GoodnewsBay; the Association of Village CouncilPresidents; Louie Smith; AnnieCleveland, Plaintiffs-Appellants,v.UNITED STATES of America; Manuel Lujan, Jr., in hisofficial capacity as Secretary of the United States Dept. ofthe Interior; State of Alaska; Carl Rosier, in hisofficial capacity as the Com...
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Opinion by Judge O’Scannlain; Dissent by Judge Norris. We must decide whether an ERISA plan health insurer has a cause of action against its insured for reimbursement of medical expenses advanced under the policy when the insured recovers a full award against a third party. I Scott Martin was insured under a pre-paid health plan pursuant to a group subscriber agreement between Pacificare, a feder...
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Henry Lee Peters filed a petition for habe-as relief from his conviction for conspiracy to commit murder, in violation of California Penal Code §§ 182(i) & 187. The district court granted his petition, concluding that he was unconstitutionally denied his right to self-representation. Bryan S. Gunn and other California state prison officials appeal. We have jurisdiction over the timel...
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Leanne Dees appeals her jury conviction for mail and wire fraud in violation of 18 U.S.C. §§ 1341 and 1343. We have jurisdiction over defendant’s timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I. On January 13,1989, Dees responded to an advertisement in a local Arkansas newspaper placed by Carolyn Burteh, a California resident hoping to privately adopt a child. Dees identified herself...
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Opinion In these six consolidated appeals Joseph L. Alioto, Angela M. Alioto, and Alioto & Alioto (hereinafter, Joseph L. Alioto Group), Joseph M. Alioto and John I. Alioto, 1 appeal numerous orders of the trial court enjoining some or all of the appellants to comply with a receiver order and assessing sanctions for the willful failure to comply with the order. Joseph M. Alioto...
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Opinion We decide this case, although technically moot, to effect the legislative mandate for speedy resolution of the permanent status of dependent children. This case involves the rights of dependent children whose parents are no longer receiving reunification services and for whom adoptive parents or guardians are not generally forthcoming, but whose caretakers are likely to assume one of thos...
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27 Cal. App. 4th 1155 (1994) 33 Cal. Rptr. 2d 354 THE PEOPLE, Plaintiff and Respondent, v. TOMMIE LEE OWENS, Defendant and Appellant. Docket No. A062377. Court of Appeals of California, First District, Division Five. August 31, 1994. *1156 COUNSEL Ozro William Childs, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chi...
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Opinion Plaintiff and appellant Benito DiPalma (DiPalma) appeals a judgment following a grant of nonsuit in favor of defendants and respondents Norman Seldman (Seldman) and Garcia & Seldman, Inc., a professional corporation (Garcia & Seldman) (sometimes collectively referred to as Seldman). The essential issue presented is whether the trial court properly granted nonsuit in this lega...
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Opinion This is our second encounter with this case, the first of which also resulted in a published decision—National Union Fire Ins. Co. v. Lynette C. (1991) 228 Cal.App.3d 1073 [279 Cal.Rptr. 394] (National *1438 Union I). The subject is insurance coverage for a foster parent who negligently fails to protect his or her foster child from ...
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27 Cal. App. 4th 1466 (1994) 33 Cal. Rptr. 2d 217 THE PEOPLE, Plaintiff and Respondent, v. ROBERT EARL GIBSON, Defendant and Appellant. Docket No. C017016. Court of Appeals of California, Third District. August 31, 1994. *1467 COUNSEL Richard I. Targow, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant At...
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Opinion Felix Frankfurter once made fun of the tendency of courts to look at legislative history rather than the actual words of the statute. “[Tjhis *1571is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute,” he wrote. (Greenwood v. United States (1956) 350 U.S. 366, 374 [100 L.Ed. 412, 419, 76 S.Ct. 410].) The instant ...
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Mario Mark Garcia is a California state prisoner serving a sentence of 33 years to life imposed upon his 1986 conviction on counts of first-degree murder and assault with a deadly weapon. He appeals the district court’s denial of his 28 U.S.C. § 2254 petition regarding his conviction. 1 In an ex parte hearing on the morning of trial, defense counsel Craig Holmes announced that he h...
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34 F.3d 845 PORTLAND FEMINIST WOMEN'S HEALTH CENTER, an Oregon nonprofitcorporation; Amy Aycrigg; Geri Craig, et al.,Plaintiffs-Appellees,v.ADVOCATES FOR LIFE, INC., an Oregon nonprofit corporation;et al., Defendants-Appellants. No. 91-35512. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 16, 1992.Submission Withdrawn Oct. 29, 1992.Resubmitted Aug. 25, 1...
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Taxpayers Alexander Shokai, Inc., Edward Alexander and Estelle Alexander appeal the decision of the tax court denying them a redetermination of approximately $2 million in back taxes and penalties asserted by the Commissioner. The tax court had jurisdiction under 26 U.S.C. §§ 6213, 6214 and 7442. We have jurisdiction pursuant to 26 U.S.C. § 7482, and we affirm. I. Facts In the 1960’s,...
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Opinion On July 22, 1987, respondent Emory Thomas was employed as an “aircraft repairer” at the Alameda Naval Air Station. While disassembling a jet engine in the course of his employment duties, respondent used a Garland No. 4 split-head hammer (hereafter the hammer), which he obtained from the “special tool rack,” to remove a disk from the turbine shaft of the jet engine. As he swung the hammer...
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*1601 Opinion Defendants and appellants Charles Banasky (Banasky) and David G. Van Horn (Van Horn) (collectively, the dentists) appeal a judgment following a grant of summary judgment in favor of plaintiff and respondent Delta Dental Plan of California (Delta). The essential question presented is whether Delta’s determination as to what constitutes the usual, customary and r...
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27 Cal.App.4th 1471 (1994) 33 Cal. Rptr.2d 243 JEHAN ZEB MIR, Plaintiff and Respondent, v. CHARTER SUBURBAN HOSPITAL, Defendant and Appellant. Docket No. B066660. Court of Appeals of California, Second District, Division Three. August 31, 1994. *1474 COUNSEL Weissburg & Aronson, Lowell C. Brown and Shirley J. Paine for Defendant and Appellant. Jeffer, Mangels, Butler & Marmaro, Suzanne F....
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27 Cal.App.4th 1527 (1994) 33 Cal. Rptr.2d 305 In re the Marriage of MARIE P. ANGOCO and PRIESTLY SAN NICOLAS. MARIE P. ANGOCO, Respondent, v. PRIESTLY SAN NICOLAS, Appellant. Docket No. D018047. Court of Appeals of California, Fourth District, Division One. August 3, 1994. *1531 COUNSEL Mark Wright Rossi for Appellant. Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Att...
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Opinion Two men—one White, one Black—robbed a coin store in Newport Beach and murdered two people in the process. The police arrested Eric Wick, who is White, and Thomas Read Merrill, who is Black. In a lineup conducted before their joint preliminary hearing, eyewitnesses positively identified Eric Wick, who had already admitted to the police that he committed the crime. But another witne...
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27 Cal.App.4th 1557 (1994) 33 Cal. Rptr.2d 366 TUSTIN PLAZA PARTNERSHIP, Plaintiff and Appellant, v. KEN WEHAGE et al., Defendants and Respondents. Docket No. G013806. Court of Appeals of California, Fourth District, Division Three. August 31, 1994. *1560 COUNSEL Stephen C. Chen for Plaintiff and Appellant. Marvin Zinman for Defendants and Respondents. OPINION SONENSHINE, J. Tustin Plaza Partners...
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Opinion This action arises out of the sale of a house by Michael and Mary West to Wayne and Beverly Willerth. Willis M. Allen Company (Willis Allen) and two of its agents represented the parties in the sale. The Willerths sued the Wests, Willis Allen and the agents. After having prevailed on a summary judgment motion on the basis of a statute of limitations bar, the broker defendants sett...
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Opinion The juvenile court entered a disposition order which in part denied reunification services (Welf. & Inst. Code,1 § 361.5, subd. (b)) to the mother, Terri S. In a later, separate disposition order it denied services to the father, Robert R. Both parents appealed. The mother raised the denial of services as well as the juvenile court’s jurisdictional finding under section 300, subdivision (...
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Dwayne Bartholomew, a Washington State prisoner, was convicted of aggravated first degree murder. Although he was originally sentenced to death, the Washington Supreme Court reversed his sentence, and after a sentencing retrial he received a sentence of life without possibility of parole. Upon exhausting his remedies in the state courts, he brought this habeas corpus petition, which the district ...
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Gert Helmut Dielmann (“Petitioner” or “Dielmann”) petitions for review of the denial by the Board of Immigration Appeals (“BIA”) of his motion to reopen his deportation proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1105a and deny the petition for review. FACTS AND PRIOR PROCEEDINGS Dielmann, a citizen of Germany, entered the United States on a tourist visa on January 12, 19...
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35 F.3d 395 Alvaro ECHAVARRIA-OLARTE, Petitioner-Appellant,v.Janet RENO, Attorney General for the United States ofAmerica,* Respondent-Appellee. No. 93-15752. United States Court of Appeals,Ninth Circuit. Submitted July 25, 1994**.Decided Sept. 6, 1994. Rebecca Donaldson, San Diego, CA, for the petitioner-appellant. Michael J. Yamaguchi, U.S. Atty., San Francisco, ...
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This appeal presents us with the question of the constitutionality of an ordinance requiring all speakers, demonstrators, and entertainers to obtain a permit before making use of the public parks. Under former section 20.08.010 of the Portland City Code, it was unlawful for any person “to conduct or participate in any organized entertainment, demonstration, or public gathering, or to make ...
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34 F.3d 854 63 USLW 2165 George D. MACE, Jr., Plaintiff-Appellant,v.Samuel K. SKINNER, Secretary, Department of Transportation;James B. Busey, IV, Administrator, FAA; C. Dean McGrath,Jr., Acting General Counsel, Department of Transportation;Neil R. Eisner, Assistant General Counsel, Department ofTransportation; Kenneth P. Quinn, Chief Counsel, FAA;Gregory S. Walden, former Chief Counsel,...
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John Blount was convicted of offenses related to his spiking of trees in the Clearwater National Forest. He now appeals his conviction under 18 U.S.C. § 1864(a)(2) (1988), arguing that the reinstatement of two counts of tree spiking as misdemeanors one day after the trial court had granted his motion for acquittal on felony tree spiking counts violated his right not to be subject to double jeopar...
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Jose Luis Cupa-Guillen appeals the district court’s 100-month sentence which was imposed after he was found guilty of being a deported alien found in the United States after conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Cupa-Guillen contends that § 1326(b)(2) violates the due process clause and that the sentence imposed thereunder constitutes cruel and unusual punishm...
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This case involves the constitutional limits on the government’s ability to seek criminal penalties and civil forfeiture based on the same violations of law. The government brought a criminal prosecution against the claimants at approximately the same time as it instituted this separate and parallel civil forfeiture action under 18 U.S.C. § 981(a)(1)(A) and 21 U.S.C. § 881(a)(6). The question i...
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Opinion —Classified employees of the state’s community colleges are entitled to the paid holidays enumerated in Education Code section 88203, *336including “every day appointed by the President, or the Governor of this state . . . for a public fast, thanksgiving or holiday . . . .” We must decide whether President George Bush “appointed” days of thanksgiving, within the meaning of the Education C...
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Opinion —Jasmon O. is now seven and a half years old. She has resided with her foster parents, who wish to adopt her, since she was an infant of six months. Her natural father asserts that it is in Jasmon’s best interests not to terminate his parental rights but to transfer Jasmon’s custody to him. A court hearing an action to terminate parental rights under former Civil Code section 2321 must co...
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8 Cal.4th 361 (1994) 878 P.2d 1275 33 Cal. Rptr.2d 63 NATORE A. NAHRSTEDT, Plaintiff and Appellant, v. LAKESIDE VILLAGE CONDOMINIUM ASSOCIATION, INC., et al., Defendants and Respondents. Docket No. S029132. Supreme Court of California. September 2, 1994. *367 COUNSEL Joel F. Tamraz for Plaintiff and Appellant. Wilner, Klein & Siegel, Leonard Siegel, Laura J. Snoke and Thomas M. Ware II for De...
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27 Cal. App. 4th 1722 (1994) 33 Cal. Rptr. 2d 313 HERBERT A. CROCKER & COMPANY et al., Plaintiffs and Appellants, v. TRANSAMERICA TITLE INSURANCE COMPANY et al., Defendants and Respondents. Docket No. A060416. Court of Appeals of California, First District, Division Four. August 8, 1994. *1723 COUNSEL Mark B. Scott for Plaintiffs and Appellants. *1724 Knox, Anderson & Blake, Robert Knox, ...
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Jose Chacon, a former Washington State prisoner, appeals the district court’s denial of his petition for habeas corpus, 28 U.S.C. § 2254. Chacon claims that his guilty plea was involuntary and that he was denied effective assistance of counsel. Both of these claims center on allegations that a court interpreter deliberately failed to translate trial counsel’s advice fully or accurately to Cha-c...
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35 F.3d 400 30 Fed.R.Serv.3d 360 Douglas Gary HOUSLEY, Plaintiff-Appellant,v.UNITED STATES of America, John C. Lawn, individually and asdirector of the Drug Enforcement Administration, WilliamWebster, individually and as director of the Federal Bureauof Investigation, David Paull, L. Anthony White, OtherAgents of the Department of Justice Yet Unknown, Defendants-Appellees. No. 93-15446...
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Baker & Drake, Inc. (“Baker”) appeals the district court’s decision that the Bankruptcy Code, 11 U.S.C. § 1 ei seq., does not preempt Nevada Administrative Code, eh. 706, § 706.-371 (1992) [hereinafter “NAC 706.371”], a state regulation which requires that the drivers for taxicab companies be employees of the companies rather than independent contractors. We have jurisdiction pursuan...
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Victor Corona appeals his conviction and sentence for conspiracy to possess and dis *878 tribute cocaine and three substantive counts stemming from this conspiracy. Corona was tried in the District of Nevada, which is where Corona’s coconspirators initially agreed to the drug transaction. The actual distribution, which formed the basis for the three substantive counts, took place in California....
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Appellant Delbert L. Dotson was arrested on the Fort Lewis Military Reservation while driving his moped under the influence of alcohol. He was charged and convicted under the Assimilative Crimes Act (ACA), 18 U.S.C. § 13, which makes it a federal crime for a person on a military base to commit a violation of the criminal law of the state in which the base is located. The sole question presented i...
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35 F.3d 408 63 USLW 2260, 18 Employee Benefits Cas. 2106 Robert DeVOLL and Patricia M. DeVoll, Plaintiffs-Appellants,v.BURDICK PAINTING, INC. and Bay Area Painters and TapersHealth Fund, Defendants-Appellees. No. 93-15366. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 14, 1994.Decided Sept. 8, 1994. Michael Willemsen, Palo Alto, CA and Eliza...
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35 F.3d 402 65 Fair Empl. Prac. Cas. (BNA) 1554,65 Empl. Prac. Dec. P 43,250Lena R. JOHNSON, Plaintiff-Appellant,v.Donna W. SHALALA, Secretary, Defendant-Appellee. No. 93-36077. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 1, 1994.Decided Sept. 8, 1994. Barbara A. Norris, Law Office of Barbara A. Norris, and Johnny O. Gibbons, Dickerson & G...
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33 F.3d 1477 Fed. Sec. L. Rep. P 98,433SHAWMUT BANK, N.A., as Trustee; Eaton Vance CaliforniaMunicipals Trust, Plaintiffs,andMunicipal Securities Trust High Income Series 10; MunicipalSecurities Trust High Income Series 11,Plaintiffs-Appellants,v.KRESS ASSOCIATES; Paul F. Klapper; Brobeck, Phleger &Harrison; Jones, Hall, Hill & White; Freytag &LaForce; Bear, Stearns & C...
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34 F.3d 893 UNITED STATES of America, Plaintiff-Appellee,v.Daniel G. CHAPEL, Defendant-Appellant. No. 93-30236. United States Court of Appeals,Ninth Circuit. Submitted Aug. 1, 1994*.Decided Sept. 8, 1994. David M. Ortley, Kalispell, MT, for defendant-appellant. Dennis Hester, Kalispell, MT, for plaintiff-appellee. Appeal from the United States District Court ...
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Sonja Harrison appeals her conviction for money laundering in violation of 18 U.S.C. *888 § 1956(a)(1)(B). She argues that the district court erred in admitting a statement she gave to federal agents at the time of her arrest and in instructing the jury regarding the coconspirator exception to the hearsay rule. We have jurisdiction, 28 U.S.C. § 1291, and we reverse. I In 1990, Harrison purc...
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Defendants Walker and Michlin pled guilty to conspiracy, armed bank robbery, and use of a firearm during commission of a crime of violence. On appeal, they challenge the district court’s denial of their motion to withdraw their guilty pleas, as well as various aspects of their sentences. We dismiss the appeals because we conclude that, pursuant to valid plea agreements, defendants waived their ri...
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Appellant Frank Rose appeals the imposition of a $25,000 fine for violations of a bingo ordinance enacted by the Morongo Band of Mission Indians (the “Band”). The case is on its second visit to this court. In the first sojourn, we held that a suit to enforce the tribal ordinance against a non-Indian presented a federal question of the Band’s “disputed ability, under the principles of federal co...
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35 F.3d 414 UNITED STATES of America, Plaintiff-Appellee,v.James Eugene SMALLWOOD, Defendant-Appellant. No. 92-50695. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 3, 1993.Decided Sept. 8, 1994. Amy Fan, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Robert T. Scott, Asst. U.S. Atty., Los Angeles, CA, for plainti...
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Opinion A party aggrieved by a decision of the Public Employment Relations Board (PERB) must file a petition for writ of extraordinary relief challenging the decision within 30 days after issuance of the board’s final order. (Gov. Code, § 3542, subds. (b) & (c).) We address here PERB’s motion to dismiss as untimely a challenge to one of its rulings. San Mateo Federation of Teachers, AFT Local 149...
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27 Cal. App. 4th 1611 (1994) 33 Cal. Rptr. 2d 276 CHRISTOPHER SCHULTZ, a Minor, etc., et al., Plaintiffs and Appellants, v. DAVID M. HARNEY et al., Defendants and Respondents. Docket No. B071678. Court of Appeals of California, Second District, Division Three. September 1, 1994. *1615 COUNSEL Harry Frank Scolinos for Plaintiffs and Appellants. David M. Harney, in pro. per., Thomas Kallay, Vincent...
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Opinion This is a plaintiffs’ appeal from an order after judgment. The defendant failed to answer the plaintiffs’ complaint and his default was entered. An ex parte hearing on the issue of damages was held, evidence taken, and a default judgment entered for damages. The trial court vacated the default judgment and set aside the default. We conclude that the default judgment was prope...
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Opinion Christopher H. appeals the juvenile court’s order declaring his minor children, Terry, Tracie, and Elizabeth H., dependents (Welf. & Inst. Code,1 § 300, subd. (b)) and removing them from the custody of their *1849mother, Becky H. (§ 361, subd. (b)). He contends he was improperly denied reunification services.2 We affirm. Factual and Procedural Background Terry, Tracie, and Elizabeth were ...
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Opinion We are called upon to decide whether a sentencing court may properly order a defendant committed to prison to pay the full amount of restitution, rather than an apportioned share, under circumstances where his codefendant has been ordered to reimburse the same loss. Given the facts of the present case, we find that joint and several orders for payment of restitution made pursuant to Gov...
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35 F.3d 1355 147 L.R.R.M. (BNA) 2285, 128 Lab.Cas. P 11,172 BUD ANTLE, INC., dba Bud of California, Plaintiff-Appellant,v.J. Antonio BARBOSA, personally and in his official capacityas Executive Secretary of the California Agricultural LaborRelations Board; Bruce J. Janigan, personally and in hisofficial capacity as Chairman of the California AgriculturalLabor Relations Board; Ivonne Ram...
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On March 12,1990, Alexander Komarenko, a former Soviet citizen and a lawful perma *434 nent resident of the United States, was convicted of assault with a deadly weapon in violation of California Penal Code § 245(a)(2) and sentenced to four years of imprisonment. The I.N.S. commenced deportability proceedings against Komarenko under 8 U.S.C. § 1251(a)(2)(C) for being an alien convi...
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35 F.3d 1371 39 ERC 1486, 24 Envtl. L. Rep. 21,516 NORTHWEST RESOURCE INFORMATION CENTER, INC.; TroutUnlimited; Oregon Natural Resources Council,Inc.; Idaho Steelhead and SalmonUnlimited; The WildernessSociety; Petitioners,andPuget Sound Power & Light Company; Northwest IrrigationUtilities, Inc. ("NIU"); Columbia/Snake River IrrigatorsAssociation, Inc. ("CSRIA"); Port of Lewist...
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Jose Luis Ayala appeals his conviction and sentence for illegal re-entry into the United States after five prior deportations and four prior convictions for aggravated felonies in violation of 8 U.S.C. § 1326(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. FACTS Ayala was charged with one count of illegal re-entry into the United States after five prior deportations (in 1987, 1989, ...
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George Benitez, Javier Ramirez, and Jose Camilo Lizarraga (“appellants”) appeal their conditional guilty plea convictions for assaulting and interfering with government agents and using firearms during a crime of violence. Appellants appeal the district court’s denial of their motion to dismiss for violation of the Speedy Trial Act and Fed.R.Crim.P. 48(b). Ramirez and Lizarraga also appeal the co...
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Does the savings clause in a statute of limitations preserve the government’s late-filed action to recover damages from a defaulting scholarship recipient? I Te Selle received a one-year scholarship award from the National Health Service Corps (“NHSC”) Program in 1981, which she applied toward her 1981-82 dental school tuition. In 1982, she received another award ' for the next academic year,...
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ORDER Upon the vote of a majority of nonrecused 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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ORDER Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en bane court pursuant to Circuit Rule 35-3. ...
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Opinion Cecily Kagy appeals from the order of the superior court denying her petition for leave to file a late claim against Napa State Hospital and various members of its staff. The claim, in essence, alleged that on January 1,1992, Kagy was seriously injured due to the negligence of the hospital and its staff. It alleged that as of that date Kagy had been deemed an incompetent, and...
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Opinion Introduction This appeal contests that portion of a judgment which set aside as a fraudulent conveyance Yukio Tamura’s gift of $243,206 to his sons made one month after a jury had returned a verdict compelling him to pay in excess of $2 million. Because the funds were derived from a defined benefit pension plan, Yukio Tamura maintained that the moneys were entitled to the statutory ex...
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34 F.3d 914 63 USLW 2200, 18 Employee Benefits Cas. 2116 BOARD OF TRUSTEES OF THE CONSTRUCTION LABORERS PENSION TRUSTFOR SOUTHERN CALIFORNIA, Plaintiff-Appellant,v.Russell L. THIBODO; Gary R. Thibodo; Thibodo ConstructionCo. Inc.; Drainage Construction Co.,Defendants-Appellees.BOARD OF TRUSTEES OF THE CONSTRUCTION LABORERS PENSION TRUSTFOR SOUTHERN CALIFORNIA, Plaintiff-Appellant-Appell...
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34 F.3d 918 1994 A.M.C. 2941, 25 Envtl. L. Rep. 20,020 Clifton B. CRAFT; Jack Dean Ferguson; Donald L. Jernigan;Michael Patrick King; Thomas D. Stocks; WilliamLee Wilson, Plaintiffs-Appellants,v.NATIONAL PARK SERVICE; National Oceanic and AtmosphericAdministration; National Marine FisheriesService; United States of America,Defendants-Appellees. No. 93-55140. United States Co...
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James Emery appeals his sentence following a plea of guilty to various charges arising from his participation in a large marijuana growing and trafficking operation. We affirm. BACKGROUND On March 3, 1992, Alaska state law enforcement authorities executed a search warrant at Emery’s house in Fairbanks, Alaska. Inside, they discovered a room with several live marijuana plants, approxim...
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Joshua Carl Redman appeals his sentence under the Sentencing Guidelines imposed following his guilty plea on charges of conspiracy to aid and assist an escape, in violation of 18 U.S.C §§ 752(a), 371. We affirm. BACKGROUND In late December 1992, Redman agreed to assist a federal prisoner awaiting trial in his escape from a jail in Washington. On January 6, 1993, he broke into the jail...
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28 Cal.App.4th 185 (1994) 34 Cal. Rptr.2d 39 JUDITH KRUPNICK et al., Plaintiffs and Appellants, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY et al., Defendants and Respondents. Docket No. E006810. Court of Appeals of California, Fourth District, Division Two. September 9, 1994. *187 COUNSEL Weldon Diggs and Linda M. Wilde for Plaintiffs and Appellants. Hawkins, Schnabel & Lindahl, Kelley K. Bec...
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Does a bank violate federal law when it serves, at the same time, as trustee of a pension plan and creditor of a company whose stock is held as a plan trust asset? *468I Carson Friend was the sole trustee of the Carson Lighting, Inc. Profit Sharing and Pension Plans (“Plans”) until 1990. He was the sole beneficiary of the profit sharing provisions. He and his family were the beneficiaries of the p...
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Opinion by Judge HILL. In this opinion we hold that bankruptcy debtors may claim the California homestead exemption. We reverse a district court decision which held to the contrary. FACTS William H. Pladson and Barbara J.P. Snethen, a married couple residing together, filed a joint Chapter 7 bankruptcy petition which claimed a homestead exemption of $52,000 in their residence. John Kendall, the co...
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The Department of the Interior appeals interlocutorily from the district court’s order that a plaintiff in an inverse condemnation action under the Mining in the Parks Act, 16 U.S.C. §§ 1901-12 (1988), is entitled to a jury determination of just compensation. We review the question of entitlement to a jury trial in a federal court de novo. SEC v. Rind, 991 F.2d 1486, 1493 (9th Cir.), cert. den...
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36 F.3d 821 UNITED STATES of America, Plaintiff-Appellee,v.Richard Glen MATHEWS, Defendant-Appellant. No. 93-50359. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 5, 1994.Decided Sept. 13, 1994. Michael Dowd, Milberg, Weiss, Bershad, Specthrie & Lerach, San Diego, CA, for defendant-appellant. Larry Burns, Asst. U.S. Atty., San Diego, C...
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34 F.3d 1508 UNITED STATES of America, Plaintiff-Appellee,v.Gregory A. McFARLAND, Defendant-Appellant. No. 93-10322. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 10, 1994.Decided Sept. 13, 1994. 1 Karen L. Landau, San Francisco, CA, for defendant-appellant. 2 Kent Walker and George L. Bevan, Jr., Asst. U.S. Attys., Sa...
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Defendant Wynn Lewis Robinson appeals his sentence of 63 months, pursuant to his plea of guilty to manufacturing marijuana with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). Robinson’s appeal presents a number of challenges to the district court’s finding that Robinson, at the time of his arrest, was cultivating 156 marijuana plants. He argues that the district court erred in counti...
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Is a federal drug law offender entitled to an evidentiary hearing during sentencing to challenge the constitutionality of a prior conviction used to enhance the sentence? I Dale Stephens was arrested at his residence on July 16, 1992 by agents of the Bureau of Alcohol, Tobacco and Firearms *452 who had acted on a tip from an informant that Stephens was selling cocaine. On July 31, 1992, t...
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OPINION This is an appeal from the bankruptcy court’s judgment declaring that an award of attorney’s fees and costs in a California marital dissolution proceeding constituted nondis-chargeable alimony, maintenance, or support under 11 U.S.C. § 523(a)(5). 2 We AFFIRM. JURISDICTION Original subject-matter jurisdiction was founded on 28 U.S.C. § 1334(b). This was...
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OPINION Renee Stewart Irizarry, the Debtor, filed a complaint in bankruptcy court against Marion Luette Schmidt. The bankruptcy court denied the Debtor’s request for a restraining order, and granted Schmidt’s motion for summary judgment. The Debtor appeals these rulings. We AFFIRM. I. FACTS The parties do not dispute the relevant facts. The Debtor owns real property located at 16621 Kenne...
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*261 Opinion The trial court ordered appellant Marcus K. Johnson to pay child support of $1,660 per month and $56,576 in arrears. Johnson appeals, 1 contending that (1) his total obligation in arrears was only $22,649; and (2) the current support order is unjust and inappropriate under the facts of this case. We affirm the judgment. I. Facts In 1981, Aerial J...
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Opinion California State Personnel Board (Board) appeals from a judgment granting peremptory writ of administrative mandamus (Code Civ. Proc., § 1094.5, subds. (f), (g)) to compel reversal of David Larson’s (Larson) termination as a teacher with real party in interest Department of Developmental Services (DDS). 1 Statement of the Case DDS discharged Larson as a teacher a...
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This is an action by taxpayers seeking abatement of interest and penalty interest on the ground that IRS personnel delayed in providing them with settlement documentation that the IRS had provided to similarly situated taxpayers. The district court dismissed the action under Fed.R.Civ.P. 12(b)(6) *473 for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291, and we...
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Delara Nasseri appeals the district court’s judgment denying her petition for a writ of habeas corpus contesting a final order of exclusion. The district court affirmed the decision of the Board of Immigration Appeals (“the Board”) finding her excludable under 8 U.S.C. §§ 1158 and 1253(h), and denying her application for asylum and withholding of deportation under 8 U.S.C. §§ 1158(a) and 1253(h...
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Defendant-appellant Enrique Fonseca-Martinez petitioned the district court, requesting that it exercise its power to issue the little-used common law writ of audita querela to vacate his 1987 conviction on a federal drug offense. The district court denied defendant’s petition and Fonseca-Mar-tinez appealed. For the reasons that follow, we affirm the judgment of the district court. ...
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A jury convicted Defendant-Appellant Wai Chong Leung (‘Wai Chong”) of importation of heroin and four counts of conspiracy to import and distribute heroin. The district court sentenced Wai Chong to 360 months in prison and five years supervised release. On appeal, Wai Chong contends that there was insufficient evidence to convict him, and that the district court erred in finding that he was an “or...
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Karen Thompson, who was arrested at an airport after cocaine was found in her suitcase, appeals her conviction and sentence for possession of cocaine with intent to distribute, a violation of 21 U.S.C. § 841(a)(1). She argues that the district court erred in preventing her from commenting at trial on the lack of fingerprint and other evidence tying her to knowledge of the contents of the suitcase...
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*165 Opinion This appeal challenges a Contra Costa County Board of Supervisors resolution which establishes lower general assistance payments for parents who live with their adult children and adult children who live with their parents. In effect, the resolution reduces payments to recipients who live with “legally responsible” relatives, and presumptively includes adult children and the pare...
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Opinion The “collateral source rule” provides that where a person “suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of damages reduced by the receipt by him of payment for his loss from a source wholly independent of the wrongdoer. . . .” (Anheuser-Busch, I...
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Opinion Plaintiff Cheri L. Craig, a low-income resident of the City of Poway, brought an action against Poway, Poway’s city council, and the Poway Redevelopment Agency (collectively Agency), challenging various aspects of the Agency’s implementation of its redevelopment plan. 1 Craig claimed inter alia (1) the Agency had not properly funded its low- and moderate-income housing ...
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35 F.3d 1407 63 USLW 2216, Fed. Sec. L. Rep. P 98,393 In re WORLDS OF WONDER SECURITIES LITIGATION.Rosetta MILLER; Walter Untermeyer; Alan Nisselson; TrudyWhitman Nisselson; Paul Greenstein; Howard H. Weston, asTrustee for the Florida Municipal, Inc., Restated DefinedBenefit Trust and Plan; Sylvia Wind, on behalf ofthemselves and the certified class of purchasers ofsecurities of Wor...
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Opinion by Judge T.G. NELSON; Dissent by Judge FERGUSON. I. Overview Jose Manuel Leon-Leon (Leon-Leon) reentered the United States after being deported and, as a result, was convicted of violating 8 U.S.C. § 1326. He appeals the district court’s decision that the deportation order could be used to prove an element of § 1326. He also appeals the district court’s exclusion of evidence regarding h...
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Opinion Penal Code section 12076, a part of the Dangerous Weapons’ Control Law (Pen. Code, § 12000 et seq.), governs the scope of the investigation to be made by the Department of Justice for the purpose of determining whether an individual is disqualified from obtaining possession of a firearm by sale or otherwise. In 1989 the Court of Appeal in Gray v. State of Californ...
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Opinion Assemblyman Dean Andal, the petitioner in this writ proceeding, is a candidate for a seat on the Board of Equalization at the General Election scheduled for November 8, 1994. One of his opponents is State Senator Robert Presley, the real party in interest. Andal commenced this original mandamus proceeding against Acting Secretary of State Tony Miller seeking a writ of mandate from...
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Lisa and Macintosh are Apple computers. Each has a graphical user interface (“GUI”) which Apple Computer, Inc. registered for copyright as an audiovisual work. Both GUIs were developed as a user-friendly way for ordinary mortals to communicate with the Apple computer; the Lisa Desktop and the Macintosh Finder 1 are based on a desktop metaphor with windows, icons and pull-down menus w...
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John R. Olsen wants to know for whom the statute tolls; it tolls for thee. The two-year limitation period on the bankruptcy trustee’s action to void a postpetition transfer of estate property was equitably tolled by the petitioner’s conduct. Raymond and Gladys Olsen (Olsens) were sole owners of Olsen & Sons Logging, Ltd. (O & S). In the summer of 1984, both the Olsens and O & S filed for C...
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36 F.3d 73 29 Fed.R.Serv.3d 789 Cheri LANG; Henry Lang; Lillian D'Antignac, Plaintiffs,andYagman & Yagman, P.C., Real-Party-in-Interest-Appellant,v.Daryl F. GATES, Chief of Police; Reva Tooley; RobertTalcott; Herbert F. Boeckmann, II, Defendants-Appellees. No. 93-55185. United States Court of Appeals,Ninth Circuit. Argued and Submitted August 1, 1994.Decided Sept. 19, ...
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George Maiden appeals the district court’s denial of his petition for a writ of habeas corpus. Maiden was convicted in state court of first degree murder and attempted robbery. His defense attorney at trial formerly worked as a prosecutor and had successfully brought a felony burglary prosecution against Maiden three years earlier. Maiden argues that this was an impermissible conflict of interest...
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36 F.3d 69 RICO Bus.Disp.Guide 8649 James STEELE; Randa Steele; James Steele, Jr., et al.,Plaintiffs-Appellants,v.HOSPITAL CORPORATION OF AMERICA, a West VirginiaCorporation; General Health Ser., a Delawarecorporation; Stuart Wyckoff, M.D., etal., Defendants-Appellees. No. 92-17035. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 18, 1994.Decided Se...
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In response to the 1988 Fair housing Act (“FHA”) Amendments prohibiting discrimination based on familial status, a mobilehome park owner terminated the park’s adults-only status. A city-appointed arbitrator concluded that this change in policy decreased the housing services provided by the park to its *834 tenants and accordingly required the owner to reduce the rent pursuant to a ...
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On June 29, 1993, appellant Alfredo Davi-la-Escovedo was tried before a jury on a two-count indictment charging importation of marijuana with intent to distribute (Count One) and possession of marijuana with intent to distribute (Count Two) in violation of 21 U.S.C. §§ 952, 960, and 841(a)(1). The following day, the jury returned a verdict of guilty on both counts. On October 4, 1993, appellant w...
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Under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq., parents and school officials must try to reach agreement on the appropriate educational program for a disabled student. We consider what happens when they fail. I Ryan K. is a fifteen-year-old student with Tourette’s Syndrome and Attention Deficit Hyperactivity Disorder (ADHD). Prior to the events ...
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35 F.3d 1449 Rodolfo RABANG; Jose Tion Guillo; Leonora Ver Sanidad;Alfredo Maglinao; Josephine Ycaro; MichaelYcaro; John Ycaro, Plaintiffs-Appellants,v.IMMIGRATION AND NATURALIZATION SERVICE, Defendant-Appellee. No. 91-16125. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 8, 1992.Decided Sept. 20, 1994. Ronald T. Oldenberg, Honolulu, HI, for...
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36 F.3d 77 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Lee KHANG, Defendant-Appellant-Cross-Appellee.UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Say Pha KHANG, Defendant-Appellant-Cross-Appellee. Nos. 93-50174, 93-50265, 93-50180 and 93-50270. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 7, 1994.Decided Sept. 20, 199...
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37 F.3d 454w 63 USLW 2190 UNITED STATES of America, Plaintiff-Appellee,v.Jose Teofilo SOLORIO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Bourne Bobby THOMAS, Defendant-Appellant. Nos. 93-50507, 93-50508. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 2, 1994.Decided Sept. 20, 1994. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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Opinion Plaintiff and appellant Ralph Armenio appeals a summary judgment in favor of defendant and respondent County of San Mateo in his action for personal injuries. He contends the trial court erroneously concluded respondent was immune from liability by virtue of Government Code section 831.4, 1 and that triable issues of fact exist concerning the purpose of the trail on which his injuries...
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Opinion Respondent Robert L. Hutchins filed a seaman’s personal injury action under the Jones Act (46 U.S.C. § 688 et seq.) and general maritime law against appellant Juneau Tanker Corporation (Juneau) 1 and OMI Corporation (OMI). The action was filed in superior court pursuant to the “savings to suitors clause” which provides state courts with concurrent maritime jurisdiction....
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Opinion The Friends of Cuyamaca Valley (Friends), a citizens group, appeals from a judgment denying its petition for a writ of mandate to compel the Lake Cuyamaca Recreation and Park District (District) 1 to make an environmental assessment under the California Environmental Quality Act (CEQA) (Pub. Resources Code, 2 § 21000 et seq.) with respect to the 1992-1993 duck hunting season. We rej...
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Opinion The defendant was tried on eight identical counts of committing lewd and lascivious acts on the body of his thirteen-year-old stepdaughter during the period of January 1, 1990, through September 11, 1990 (Pen. Code, § 288, subd. (a)), 1 and on one count of possessing a short-barreled shotgun (§ 12020, subd. (a)). The jury found him guilty on the weapon possession charge...
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Opinion A jury convicted Michael J. Minor of one count of driving under the influence of alcohol or drugs causing injury (Veh. Code, 2 § 23153, subd. (a)) and one count of driving with a measurable blood-alcohol of .08 percent or more causing injury (§ 23153, subd. (b)), counts 2 and 3. The jury acquitted Minor of count 1, vehicular marslaughter without gross negligence (Pen. Code, § 192, sub...
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This appeal involves a 1992 Sentencing Guideline amendment that made it possible for a defendant to receive an additional reduction in the applicable base offense level for acceptance of responsibility. Section 3El.l(a) of the Guidelines allows for a two-level reduction “[i]f the defendant clearly demonstrates acceptance of responsibility for his offense.” In 1992, section (b) was added, which pr...
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Opinion Margaret Bockover appeals from a judgment the trial court entered after sustaining the demurrer of respondents Robert Perko, Frank Robles, Richard Van Slyke, Joseph E. Krueger, and the Regents of the University of California, individually and doing business as Lawrence Livermore National Laboratory (Laboratory). She contends that the trial court erred in dismissing her action for ...
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Opinion Plaintiff and appellant Ophra Griego sought a writ of ordinary mandamus (Code Civ. Proc., § 1085) to compel defendants and respondents Los Angeles Unified School District et al. (District) to classify her as a permanent employee. The trial court denied the writ, concluding on *517 undisputed facts that as a matter of law Griego did not meet the statutory qualification...
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*464 Opinion Appellant claims that the trial court erred when failing to award him attorney fees as the prevailing party on a cross-complaint. We affirm. Facts The underlying action was filed on behalf of Cinema Force Production, Inc. (Cinema Force) and Blood Law, Ltd., a California Limited Partnership (Blood Law) and against Hilltop Investment Associates and Filmservic...
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Opinion DeVaughn Peace, M.D., and DeVaughn Peace, M.D., Inc. (Peace) appeal from judgment entered following the granting of a motion for nonsuit in favor of defendant St. Francis Medical Center (Medical Center). Statement of Facts and Procedural History On March 1, 1989, Peace filed a third amended complaint for breach of contract, breach of the covenant of good faith and fair dealing, negl...
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Opinion A jury convicted appellant of first degree murder (Pen. Code,1 § 187) and found true a robbery special circumstance (§ 190.2, subd. (a)(17)) and a firearm allegation. (§ 12022, subd. (a)(1).) Financial gain (§ 190.2, subd. (a)(1)) and lying-in-wait (§ 190.2, subd. (a)(15)) special circumstances were found not true. Appellant was sentenced to state prison for life without the possibility of...
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Opinion This declaratory relief action construes a subrogation clause in a commercial vehicle insurance policy. The trial court held the insurer cannot assert its contractual right to repayment from the insured’s recovery against the third party tortfeasor, because the total amount available from the insurance and the third party is insufficient to compensate the full loss suffered by the...
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Opinion We decide here that the antideflciency statutes do not bar an action under the following circumstances: 1) The seller/beneficiary holds two trust deeds on the same real property, each securing a separate note for $300,000; 2) The seller/beneficiary reacquires the property at a nonjudicial foreclosure sale of the senior deed of tmst with a credit bid which is less than th...
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*561 Opinion Petitioner Patricia A. Yancey was struck on the head by a discus thrown by a classmate during a community college physical education class. This case raises an issue left unaddressed in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696]: whether the limited duty of care applicable to coparticipants in such sports as football,...
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Opinion Erika W. was removed from the custody of her mother (hereafter appellant), and the juvenile court took jurisdiction over her under Welfare and Institutions Code section1 300, subdivisions (b), (d) and (j). She was placed in the custody of her father, Charles W., and family maintenance services were provided to him. Reunification services were not provided to appellant. Appellant filed a no...
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I. Clyde Blincoe, d/b/a Instead Sky Sports, filed a claim with the Federal Aviation Administration’s San Francisco Airports District Office alleging the Airport Authority of Washoe County had discriminated against him in violation of 49 U.S.C.A.App. § 1349(a) by requiring him to carry a $1,000,000 comprehensive general liability insurance policy for his skydiving, hot air balloon repair and aer...
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36 F.3d 848 157 P.U.R.4th 263 INDEPENDENT ENERGY PRODUCERS ASSOCIATION, INC., et al.,Plaintiffs-Appellants,v.CALIFORNIA PUBLIC UTILITIES COMMISSION, Defendant-Appellee,andSan Diego Gas and Electric Company; Pacific Gas andElectric Company, et al., Defendants-Intervenors-Appellees. No. 92-16201. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1994.Wit...
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Paul Richard Arnpriester (Arnpriester) appeals from the judgment of the district court denying his motion for a new trial following his conviction of conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. § 846; of money laundering in violation of 18 U.S.C. § 1956(a)(l)(B)(i); of being an accessory after the fact in violation of 18 U.S.C. § 3; and of making a fa...
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Opinion Plaintiff, Thomas J. Barnes, appeals from an order taxing costs after this court had reversed a summary judgment and remanded for trial. In an order to show cause, we raise the issue of whether an order taxing costs is appealable. The parties have briefed the issue. We conclude such an order is not appealable and dismiss the appeal. On December 18, 1991, summary judgment was entered at th...
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Opinion Danny Lavel Brown appeals from judgment entered following a jury trial in which he was convicted of three counts of kidnapping (Pen. Code, § 207, subd. (a)), nine counts of forcible rape (Pen. Code, § 261, subd. (a)(2)), one count of sodomy with a child under fourteen years of age with “ten years difference” (Pen. Code, § 286, subd. (c)) and one count of forcible lewd act upon a child (Pen...
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Opinion William Levine, a husband in a dissolution of marriage action, appeals from a postjudgment order filed on March 29, 1994. His wife, Teresa Levine, has moved to dismiss the appeal from the postjudgment order. We grant the motion. On October 12, 1990, the judgment of dissolution was entered. Paragraph 2.2 of the judgment contained a guarantee by Ms. Levine that her husband would receive...
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38 F.3d 402 SYCUAN BAND OF MISSION INDIANS; Barona Band of MissionIndians, a/k/a Barona Group of the Capitan Grande Band ofMission Indians, a federally-recognized Indian Tribe;Viejas Band of Mission Indians, a/k/a Viejas Group of theCapitan Grande Band of Mission Indians, afederally-recognized Indian Tribe, Plaintiffs-Appellees,v.Jim ROACHE, individually and as Sheriff of San Diego County, De...
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On June 10, 1993, Robert Dale Johnson robbed the Division Branch of Washington Mutual Bank in Portland, Oregon. Police arrested him a few hours after the robbery. Upon Johnson’s arrest, police discovered an unloaded firearm concealed in his pants. Johnson admitted he carried the weapon in his pants during the robbery, but he never showed it to anyone inside the bank, nor did he inform the bank te...
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Opinion In an asbestos personal injury action and related claim, a partial directed verdict was entered in favor of an asbestos insulation distributor for plaintiff’s failure to prove exposure to the distributor’s product. We, too, find insufficient evidence of exposure and affirm the judgment. Statement of Facts Edward G. Dumin (Dumin) sued for personal injuries sustained in wo...
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*677 Opinion In this action for title abstractor’s negligence, we hold that the negligence of the abstractor did not cause the property to lose value. Therefore, the property owner is not entitled to damages measured by the loss in value of the property. We also hold the trial court correctly determined other aspects of the award of damages. We affirm. Facts In 1976, He...
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Opinion Amwest Surety Insurance Company appeals from an order denying motion to set aside summary judgment and exonerate bail and *578 denial of motion for reconsideration of that order. 1 Amwest contends that the trial court acted in excess of its jurisdiction in declaring the appeal bond forfeited while the appeal was still pending and before the defendant was re...
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Opinion Here we hold that arson of an inhabited structure or property (Pen. Code, § 451, subd. (b))1 is a general intent crime. Paul Hyun Lee appeals from a judgment, following court trial, of one count of arson of an inhabited structure or property (§ 451, subd. (b)) and *661one count of arson of property of another (§ 451, subd. (d)). He asserts that the trial court erred in holding that arson o...
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Opinion We granted an alternative writ of mandate in this case to decide a single issue: the validity of the policy of the Los Angeles Superior Court Appellate Department that the time to file a notice of appeal runs from the date the clerk mails a notice of ruling. We conclude the policy is invalid because it conflicts with California Rules of Court, rule 122, which governs the subject. Unde...
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Opinion When George and Elizabeth Green went to a mortgage broker to obtain a loan for the new $440,000 house they wanted to buy in Coto de Caza, they had a monthly income in excess of $16,000, more than $50,000 in savings, and six pieces of real property with a net value of $290,000. Their debts (exclusive of encumbrances on their real property) were less than $35,000, and ove...
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Opinion Procedural History On October 1,1990, plaintiffs Gerald Garcia, Jr., and Laura Garcia filed a complaint against defendant/respondent Hyster Company. The complaint charged that, while operating an “order picker” designed and manufactured by Hyster Company, Gerald Garcia was crushed between the order picker and a cross-beam. The complaint sought damages for Gerald Garcia’s phys...
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Opinion by Judge BEEZER; Concurrence by Judge KOZINSKI; Dissent by Judge D.W. NELSON Elizabeth Gonzalez-Rincon (“Gonzalez”) appeals from the judgment entered upon her conviction for possession of cocaine with intent to distribute, 21 U.S.C. § 841(a)(1), and importation of cocaine, 21 U.S.C. §§ 952(a) and 960. She argues that the district court erred in denying her motion to suppress cocaine seized...
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Opinion I. Introduction A. Background This is an appeal and cross-appeal from the second multimillion dollar judgment rendered in bad faith actions brought by investors in Technical Equities Corporation (Technical Equities) against National Union, 1 the company’s primary insurance carrier. Respondents and cross-appellants herein are the plaintiff-investors in ...
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Opinion In this action for declaratory relief plaintiff sought a declaration that he is entitled to advertise his business as an “accounting” service even though he is not a certified public accountant. The State Board of Accountancy successfully demurred to the complaint, and the action was dismissed. Plaintiff appeals. Facts Plaintiff is not a certified public accountant. He h...
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Opinion Gonzalo and Felicitas Tovar and their son Nefi Tovar appeal from a judgment entered in favor of Agostino and Catherine Tassone for *767 fraudulent transfer. Appellants argue that there cannot be a fraudulent transfer, as to a creditor, of property subject to a declaration of homestead because such property is exempt from creditors up to the value of the homestead. We agree and reverse...
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Opinion Plaintiffs appeal from a judgment of dismissal following an order granting defendants’ motion for summary judgment. Plaintiffs seek damages for an arm injury suffered by plaintiff Wattenbarger during a major league baseball tryout conducted by defendants. The trial court concluded plaintiffs’ claim is barred by the doctrine of assumption of risk. We shall reverse. I Defe...
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*759 Opinion Gorgonia Alvarez Burgos appeals a judgment dismissing her first amended complaint for damages for personal injury against Karen Tamulonis as personal representative of Armando Moscaritolo, deceased, after the court sustained Tamulonis’s demurrer without leave to amend. (Code Civ. Proc., 1 § 581d.) The basis for sustaining the demurrer was that the action a...
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Francisco Ortiz-Gutierrez appeals his conviction and sentence for being found in the United States after having been deported subsequent to a conviction for an aggravated felony. 8 U.S.C. § 1326. We affirm. I We reject the argument that the “found in” provision of 8 U.S.C. § 1326(a) is unconstitutionally vague. United States v. Ayala, 35 F.3d 423 (9th Cir.1994). II We affirm the sentenc...
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OPINION Debtors’ counsel, Mayer, Glassman & Gains (“MG & G”), submitted an application for allowance and payment of attorney’s fees and expenses. The bankruptcy court denied the application. MG & G appeals. We affirm. I. Background Harold and Linda Hanson (“debtors”) filed their joint petition for relief under chapter 7 of the United States Bankruptcy Code 1 on De...
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Opinion Introduction Petitioner, a defendant in a criminal trial, seeks to prohibit the county sheriff’s department from supplying the bailiff in petitioner’s trial, in which deputies from that sheriff’s department will also testify for the prosecution. Petitioner contends that the common affiliation of bailiff and sheriff’s deputy witnesses imposes too great a burden on defense atte...
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Opinion The primary issue raised in defendant’s appeal is whether costs awarded after a successful appeal were properly considered pre-offer costs in determining whether the plaintiff received a more favorable result at trial after rejecting an offer of settlement pursuant to Code of Civil Procedure section 998. We affirm the trial court’s finding those costs should be included in determining pla...
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Opinion Defendant and appellant Servando Marquez appeals from the judgment entered following a jury trial that resulted in his conviction of three counts of lewd conduct upon a child under the age of 14. He *1318 contends: the trial court erred in (1) limiting defense counsel’s cross-examination of a codefendant who pleaded guilty to molesting the victim; (2) refusing to inst...
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Opinion The issue presented in this appeal is: may a former spouse be ordered to divest herself of her interest in a policy insuring her former husband’s life because he objects to her continued retention of the policy? We hold that she cannot. Appellant Karen Mick Bratton appeals an order in favor of respondent Ronald E. Bratton, entered in their marriage dissolution proceeding, directing he...
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37 F.3d 1354 30 Fed.R.Serv.3d 795, Bankr. L. Rep. P 76,173 In re Salvatore James MARINO; Dolores Carmen Marino, Debtors.CLASSIC AUTO REFINISHING, INC., Appellant-Cross-Appellee,v.Salvatore James MARINO, Appellee-Cross-Appellant. Nos. 92-56202, 92-56303. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 2, 1994.Decided Sept. 29, 1994. Lary Alan...
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36 F.3d 871 Floyd SCOTT, Plaintiff-Appellant,v.Ronald A. LAWRENCE; Richard W. Scicluna; Gilbert R.Hudson; and Jean Rupert, Defendants-Appellees. No. 92-16078. United States Court of Appeals,Ninth Circuit. Submitted April 15, 1994*.Decided Sept. 29, 1994. 1 Floyd Scott, in pro se. 2 Michael G. Lee, Deputy Atty. Gen., Sacramento, CA, for defe...
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Ronald Olen Burrows appeals from his conviction for drug trafficking crimes, arguing that two of the district court’s jury instructions wer.e erroneous. Burrows also attacks four aspects of the sentence imposed by the district court. We affirm the conviction, and conclude that the district court ruled correctly on three of the four sentencing issues raised by Burrows. We remand so that the cour...
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OPINION OVERVIEW Debtors appeal a default judgment denying their discharge pursuant to § 727(a). 1 We VACATE the judgment. STATEMENT OF FACTS On April 5, 1993, appellee Federal Deposit Insurance Corporation (FDIC) filed a complaint objecting to the debtors’ discharge pursuant to § 727. The complaint alleged jurisdiction and then restated, without any addition...
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Opinion A driver has an accident with another vehicle driven by an uninsured motorist. The driver has uninsured motorist coverage for the vehicle he is driving. He also has uninsured motorist coverage with a different insurance company for another vehicle he owns. Here we hold that under Insurance Code section 11580.2, the driver may not claim uninsured motorist coverage under the po...
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Opinion Conrad Coronado appeals from a court trial determination that he is a mentally disordered offender. (MDO; Pen. Code, § 2960 et seq.) He contends: “I. There was insufficient evidence to support the court’s finding that the MDO criteria had been proven. II. Granting a petition releasing the appellant from confinement as an MDO prevented the Board of Prison Terms from re-certifying him an ...
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Opinion Concern about potential for arbitrariness in punitive damage awards by juries has recently led to recognition of certain constitutional, due process limitations on the imposition of such awards. In this case, the appellant contends that one of those limitations, the requirement of judicial review, must apply to a punitive damage award assessed not by a court or a jury, but by a pr...
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*702 Opinion This is an appeal of a second degree murder conviction based solely on circumstantial evidence. On May 17, 1991, Fritz Bieth was severely beaten and shot to death. Apparently new and unused dildos, “x-rated” publications, a container of body oil, ajar of petroleum jelly, lingerie, and a G-string were found with his body inside his van which was parked next to a motel well known f...
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Opinion Lois J. Christie appeals a portion of a September 1992 order of the family court terminating the court’s jurisdiction over the matter of spousal support as of June 1, 1994, subject to its jurisdiction to alter, terminate or modify support in the interim, and immediately terminating its jurisdiction to extend spousal support or spousal support jurisdiction beyond June 1, 1994. Finding ...
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Opinion Defendants and appellants Ana Al-Rad Levi Guinn and Jamal Hussein Johnson appeal their convictions of murder (Pen. Code, § 187) and robbery (Pen. Code, § 211). Defendant Guinn was also charged with a special circumstance allegation that the murder was committed during the commission of a robbery. The special circumstance was found true. (Pen. Code, § 190.2, subd. (a)(17)(i).) An e...
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Opinion Defendant Cruz Alberto Valenzuela appeals following a guilty plea to transportation of cocaine (Health & Saf. Code, § 11352, subd. (a)). He contends the trial court erred in denying his motion to suppress evidence seized from his vehicle when he was stopped and questioned at an agricultural inspection station. We agree and reverse. Facts The facts are essentially undispu...
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Carson Harbor Village Ltd. appeals the dismissal of its complaint alleging that laws regulating mobile home parks in the City of Carson, California violate the Due Process and Takings Clauses of the United States Constitution. We affirm. I Carson Harbor Village Ltd. (“Carson Harbor”) owns a mobile home park containing 409 rental spaces in the City of Carson (“city”). Residents of the ...
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We must decide whether the district court based its upward departure from the Sentencing Guidelines on proper factors and explained adequately the extent of its departure. I On November 21, 1988, Samuel Donaghe was sentenced for making a false statement in a passport application in violation of 18 U.S.C. § 1542. The district court did not apply the Sentencing Guidelines, because it wa...
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37 F.3d 489 UNITED STATES of America, Plaintiff-Appellee,v.ONE 1978 PIPER CHEROKEE AIRCRAFT, TAIL NO. N 5538V,INCLUDING ITS TOOLS AND APPURTENANCES, Defendant,Perry A. McCULLOUGH, Claimant-Appellant. No. 92-15350. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 16, 1994.Decided Sept. 30, 1994. Richard F. Cornell, Reno, NV, for the claimant-appell...
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OPINION The Federal Deposit Insurance Corporation (“FDIC”), as successor-in-interest, filed a complaint to determine the nondischarge-ability of debt pursuant to 11 U.S.C. §§ 523(a)(2)(A)1 and 523(a)(2)(B) of the Bankruptcy Code. The bankruptcy court determined that the debt owing to the FDIC was nondisehargeable under § 523(a)(2)(B) since it had reasonably relied on a materially false financia...
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ORDER The Supreme Court vacated our opinion, reprinted at 8 F.3d 1442, and remanded the case to this court for further consideration in light of Howlett v. Birkdale Shipping Co., S.A., — U.S. —, —, 114 S.Ct. 2057, 2064, 129 L.Ed.2d 78 (1994). Accordingly, consistent with the Howlett decision, we now affirm the district court’s grant of summary judgment to the vessel. The district court’s de...
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Opinion This is an appeal from a judgment finding in favor of defendant in an action for declaratory relief, following a nonjury trial. The trial court found, inter alia, that defendant Lawyers Title Insurance Corporation 1 had no obligation to prosecute an action on behalf of plaintiffs Paul A. Manneck and Jennifer H. Manneck-Regina or to indemnify them for any losses since th...
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*1238 Opinion The question presented is whether, as prevailing parties in a declaratory relief action brought against the Insurance Commissioner as conservator of an insolvent insurance company to challenge the commissioner’s designation of priority status, appellant policyholders are entitled to attorney fees and costs as provided for in their contract with the insurance company. We hold tha...
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Opinion At issue in this case is whether a mobilehome park owner may charge resident mobilehome owners for the cost of capital improvements as a variable-expense item supplemental to a fixed base rent. We hold that nothing in Civil Code section 798.31 (undesignated section references will be to this code) precludes this practice, capital expenses being a traditional component of rent and there ...
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Opinion David Parsons, M.D., appeals the court order dismissing his action with prejudice and vacating his previously obtained dismissal without *869 prejudice when he voluntarily dismissed following the sustaining of a demurrer during the period of time in which he was given leave to amend. For the following reasons, we reverse with directions to enter an order dismissing Parsons’s complaint...
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Opinion Conrad Andresen (husband) appeals from an order denying his motions to set aside a 1987 default and vacate a 1991 default judgment in this marital dissolution action. We affirm. Statement of Case and Facts In May 1986, Elizabeth Andresen (wife) filed a standard form petition for dissolution of the parties’ marriage. Part 5 of her petition was completed as follows: “5. Declaration ...
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Kevin McKinley and Seamus Moley appeal the district court’s order denying their motions to dismiss the indictment brought against them in Arizona. They assert that the indictment subjects them to double jeopardy and that it is vindictive. In it the grand jury has charged them with placing explosive materials in a motor vehicle employed in *429interstate commerce (18 U.S.C. § 33); shipping explosiv...
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Michael Mitchell Paul was convicted of voluntary manslaughter in violation of 18 U.S.C. § 1112. The district court instructed the jury using the Ninth Circuit model jury instructions for voluntary and involuntary manslaughter. We hold that the district court’s instructions constituted plain error because they failed to adequately distinguish the different mental state requirements of voluntary ...
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36 F.3d 83 Rigoberto YEPES-PRADO, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 91-70114. United States Court of Appeals,Ninth Circuit. Oct. 3, 1994. Before: FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges. 1 Concurrence by Judge FERGUSON; Concurrence by Judge REINHARDT; Dissent by Judge KOZINSKI. ORDER ...
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Opinion I. Introduction In this case we hold that the standard of malice set forth in New York Times Co. v. Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct. 710, 95 *1255 A.L.R.2d 1412], requiring a public official or public figure to prove knowledge of falsity or reckless disregard of the truth in order to establish a news media defendant’s l...
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Opinion Defendant was convicted in a jury trial of driving or taking a vehicle (Veh. Code, § 10851, subd. (a)), and was placed on probation for three years. On appeal he challenges the instructions given to the jury differentiating the charged offense from the lesser included offense of joyriding (Pen. Code, § 499b). We find the instructions defective, and we reverse the conviction. Facts D...
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Opinion We confront yet another “move away” case in family law. We revisit our previous opinion in In re Marriage of McGinnis (1992) 7 Cal.App.4th 473 [9 Cal.Rptr.2d 182], and the California Supreme Court precedent upon which it was based. Where, as here, the parents of a kindergartner are going to live a thousand miles from one another, a shared parenting arrangement cannot work. The trial court...
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Opinion This appeal addresses the constitutionality of a curfew regulation aimed at controlling civil unrest. We conclude that the curfew regulation passes constitutional muster in that it is neither overly broad nor impermissibly vague. Facts On April 29, 1992, widespread rioting, looting, arson, violence, and general civil disorder broke out in the County of Los Angeles. Milit...
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Opinion Shelley C. appeals from a determination of the juvenile court declaring minors Derek, Darren, and David free from her custody and control. (Welf. & Inst. Code, § 366.26.)1 We conclude inadequate reunification services were provided to this family, and also conclude the juvenile court erroneously denied regular visitation between this mother and her children after terminating reunification...
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Opinion In this appeal, we interpret a procedural provision in the California Endangered Species Act (CESA). (Fish & G. Code, § 2050 et seq.; all further references to undesignated code sections will be to the Fish and Game Code unless otherwise specified.) That provision guides the Fish and Game Commission (Commission) in determining whether to list a species as a candidate for “endanger...
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Opinion Christopher Coulter was an amateur sleuth. By hiding two small tape recorders in his pockets, he boasts, he covertly *925 recorded over 160 private conversations with his supervisors and coworkers at Bank of America, where he was employed. In this case, his sleuthing has cost him $132,000, the damages awarded the bank and 11 of its employees under the Privacy Act (Pen. Code, § 630 et ...
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Opinion Frank Gomon appeals from a summary judgment entered against him in his action against TRW, Inc. Although he raises a plethora of arguments, the primary issue is whether TRW impermissibly disclosed “a consumer report” or a “consumer credit report” on him, as those terms are defined in the Consumer Credit Reporting Agencies Act (Civ. Code, § 1785.1 et seq., hereafter CCRAA) 1 ...
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Opinion In this mandate proceeding (Code Civ. Proc., § 1085) challenging the validity of the housing element and, to a lesser extent, the land use element of the April 24, 1990, version of the general plan for the City of Encinitas (City), three of the six petitioners (Plaintiffs Ismael Hernandez, Hildeberto Garcia and Buenaventura Ayala) are homeless day laborers working for years in Nor...
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*911Opinion Jose O. (Father) appeals an order of the Juvenile Court establishing jurisdiction over his two minor children, Carmen O. (age four) and her younger brother, Francisco O. (age three), and removing the children from his custody. The order was based on a finding under Welfare and Institutions Code section 300, subdivisions (d) and (j) that Father had sexually abused Carmen and that Franci...
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Opinion May a convenience store, with a parking lot design typical of the vast majority of such businesses, be held liable when a third party negligently drives his car over a concrete wheelstop and curb, onto the storefront sidewalk injuring a pedestrian? When there is nothing requiring customers to stand in a fixed location adjacent to the parking area, and when there have been no prior such ...
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Opinion A jury convicted Charles Earl Ross (Ross) of voluntary manslaughter in violation of Penal Code section 192, subdivision (a), 1 and also found it true that Ross personally used a firearm in the commission of the offense within the meaning of section 12022.5, subdivision (a). 2 Ross was sentenced to the lower term of three years for the voluntary manslaughter conviction. The court t...
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Opinion These appeals require answers to four questions: *1010 (1) Whether the trial court properly rejected the contention of the California Superintendent of Public Instruction, and other plaintiffs, that a public school district may never lawfully contract for classroom display of “Channel One,” a current events video program which contains commercial advertisements; ...
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Opinion William Melton and Judith Anne Wells (formerly Melton) dissolved their marriage in 1983. They divided their community property and in March 1985, entered into a stipulation for entry of judgment and order, which settled the remaining issues. By this stipulation William agreed to make various payments to Judith. In paragraph F, under dispute here, the parties provided for division of Willia...
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Cacoperdo was convicted in Nevada state court of ten counts of sexually assaulting his three teenaged stepdaughters. After unsuccessfully pursuing - a direct appeal and state habeas corpus relief, Cacoperdo filed a petition for a writ of habeas corpus in federal district court. He now appeals from the district court’s order denying his petition. The district court had jurisdiction under 28 U.S.C....
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37 F.3d 517 94 Ed. Law Rep. 1159 John E. PELOZA, Plaintiff-Appellant,v.CAPISTRANO UNIFIED SCHOOL DISTRICT; Board of Trustees ofthe Capistrano Unified School District; Paul B. Haseman;Crystal Kochendorfer; Marlene M. Draper; Annette B. Gude;Kathryn I. Itzel; E.G. Kopp; A. Edward Westberg; JeromeR. Thornsley; William D. Eller; Geraldine Jaffe; ThomasR. Anthony; Ross Velderraine; ...
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36 F.3d 891 RESOLUTION TRUST CORPORATION AS RECEIVER FOR OCCIDENTALNEBRASKA SAVINGS BANK, F.S.B., Plaintiff-Appellant,v.TITAN FINANCIAL CORPORATION, a California Corporation;Frances Pikush, Defendants,andGilbert Sellan, Defendant-Appellee. Nos. 92-15419, 92-16194. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 1, 1993.Decided Oct. 4, 1994. Gilda...
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I. OVERVIEW Darnell Garcia, a former Special Agent of the Drug Enforcement Administration *1362 (“DEA”) appeals his conviction and sentence in the district court following a five-month jury trial for violating 21 U.S.C. § 846, narcotics conspiracy; 18 U.S.C. § 641, theft of government property; 21 U.S.C. § 841(a)(1), possession with intent to distribute heroin; and 18 U.S.C. §§ 1956(a)(1)...
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Defendant-Appellant Danny Lee Kyllo was convicted on one count of manufacturing *528 marijuana in violation of 21 U.S.C. § 841(a)(1) and sentenced to 63 months. Before trial, Kyllo filed a motion to suppress all the evidence obtained in a search of his residence. The district court denied his motion. We vacate this conviction and remand for further proceedings. I Factual ...
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36 F.3d 886 UNITED STATES of America, Plaintiff-Appellee,v.Mario Alonzo MILLAN, Defendant-Appellant. No. 93-10641. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 8, 1994.Decided Oct. 4, 1994. John Lambrose, Chief, Asst. Public Defender, Las Vegas, NV, for defendant-appellant. Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, for plaintiff...
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Opinion The County of Riverside (County) appeals from a judgment against it in an action brought by a rape victim, Amylou R. We modify the judgment to eliminate any recovery for tortious acts for which the County is statutorily immune, and affirm the judgment as modified. Factual and Procedural Background On March 24, 1986, Amylou, then aged 15, and her friend, Diane Harper, wer...
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Opinion I Introduction Florita Lee Jackson (Jackson) appeals from the trial court’s order denying her motion to set aside the clerk’s default and a default judgment (order) 1 and from the default judgment and order of forfeiture (judgment). II Factual and Procedural Background In March 1990, officials at an elementary school in Redlands contacted the lo...
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Opinion I Introduction Defendants Rodney J. Davis and Mihan Davis (defendants) appeal from a judgment in favor of plaintiffs James C. Rogers and Sonhui Rogers (plaintiffs). 1 Plaintiffs had sued defendants, asserting two “causes of action,” for specific performance, or alternatively, damages, based on the allegations that defendants had breached a contract to sell to ...
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35 F.3d 491 147 L.R.R.M. (BNA) 2697, 129 Lab.Cas. P 11,218 John D. NELSON, Regional Director of the Nineteenth Regionof the National Labor Relations Board, for and onbehalf of the NATIONAL LABOR RELATIONSBOARD, Plaintiff-Appellee,v.PLUMBERS AND PIPEFITTERS LOCAL NO. 32; United Associationof Journeymen and Apprentices of the Plumbing andPipe Fitting Industry of the UnitedStates and Canada...
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Saideh Fisher and her son Kian Hosseini Lavasani are natives and citizens of Iran. An immigration judge (“IJ”) denied their requests for asylum and withholding of deportation brought pursuant to Immigration and Nationality Act (“INA” or “Act”) sections 208(a) and 243(h), 8 U.S.C.A. §§ 1158(a), 1253(h)(1) (West Supp.1993), and denied Fisher’s application for voluntary departure under section 244...
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Employees of the County of San Diego sued the County of San Diego (“County”), claiming it failed to pay overtime compensation in accordance with the Fair Labor Standards Act (“FLSA”). 29 U.S.C. §§ 201-219. The district court issued three orders granting partial summary judgment for plaintiffs. *485 See Service Employees Int’l Union, Local 102 v. County of San Diego, 784 F.Su...
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36 F.3d 893 39 ERC 1726, 63 USLW 2227, 24 Envtl.L. Rep. 21,530 UNITED STATES DEPARTMENT OF COMMERCE, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.The NEZ PERCE TRIBE, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent.NATIONAL WILDLIFE FEDERATION; Idaho Wildlife Federation, Petitioners,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent. Nos. 93-70282, 93-70...
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Opinion Roland Richie appeals from convictions of evading a pursuing police officer and joyriding. With respect to the former, he raises three separate objections: that the judge (1) failed to instruct the jurors on an element of the offense, (2) failed to instruct the jury sua sponte on the meaning of the terms “willful” and “wanton” as they appear in Vehicle Code section 2800.2, and (3) direc...
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Opinion I. Introduction In this case, we bring into question a practice followed in some superior courts in Los Angeles County. Some superior courts do not file judicial arbitration awards when they are delivered to the court. Instead, some courts date-stamp the awards when received. The awards are then held outside the case file until the time for filing a trial de novo r...
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ORDER The petition for rehearing is GRANTED. The opinion filed on May 9, 1994 is hereby WITHDRAWN and the attached opinion shall be filed in lieu thereof. OPINION We consider the power of the State of California to tax offtrack betting activities on Indian reservations. I Plaintiffs Cabazon Band of Mission Indians and Sycuan Band of Mission Indians (“the Bands”) c...
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This appeal by Stanley Chenault from the district court’s denial of his motion to amend his complaint and dismissal of his action after a two-day bench trial by a magistrate judge requires us to determine whether certain sections of the Civil Rights Act of 1991 may be applied retroactively. Specifically, we must examine Section 102, which provides for compensatory and punitive damages as well a...
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On July 25,1989, certain inmates at the old Lassen County Jail (“Old Jail”) brought suit against the County of Lassen (“County”) and the Sheriff of the County of Lassen under 42 U.S.C. § 1983 alleging that conditions in the Old Jail violated the First, Fourth and Eighth Amendments of the Constitution of the United States as applied to the states through the Fourteenth Amendment. Among Other thi...
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Opinion by Judge CANBY; Dissent by Judge RYMER. Cesar Zamora appeals a five-level upward departure from the applicable guideline range in his sentence for distribution of cocaine and possession of cocaine with intent to distribute. We vacate his sentence and remand for resentencing. BACKGROUND On the evening of June 3, 1992, Zamora and several accomplices gathered in the parking lot of a Motel 6 i...
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Opinion James Thom and his business, Glendale Spa City, Inc. (Spa City), appeal from a judgment upon demurrer entered in favor of the City of Glendale (Glendale) in their action against Glendale and its employee and fire marshal, John Orr, for fire damage to Spa City. The complaint alleges that Orr set a fire at Spa City while acting in his official capacity and that Glendale is liable fo...
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Appellant Judy Breitman raises two issues in this appeal. First, Breitman challenges the district court’s denial of her motion to remand to state court on the basis that the court improperly determined that jurisdiction based on diversity of citizenship was proper in California. Second, Breitman challenges the district court’s grant of summary judgment to May Company on her breach of...
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37 F.3d 550 18 Employee Benefits Cas. 2505 Dean CORDER; Lorna Corder, Plaintiffs-Appellants,andGary Baugh, Defendant-Appellant,andBruce Chadwick; Betty Chadwick, Plaintiffs-Appellants,andBaugh Construction & Engineering Co. Profit Sharing Plan,Third-Party-Plaintiff-Appellant,v.HOWARD JOHNSON & COMPANY, Third-Party-Defendant-Appellee. No. 93-35242. United States Court of A...
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36 F.3d 1480 66 Fair Empl. Prac. Cas. (BNA) 186 Samuel W. RATTRAY, Jr., Plaintiff-Appellant,v.CITY OF NATIONAL CITY; City of National City PoliceDepartment; Terry Hart, individually, and as Chief ofPolice; Thomas W. Fowler, individually, and as Captain ofthe Police Department, San Diego, Defendants-Appellees. No. 92-55791. United States Court of Appeals,Ninth Circuit. Argued...
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37 F.3d 573 SIMULNET EAST ASSOCIATES, a New York limited partnershipd/b/a Simulnet L.P.; Cable/Mac Services, Inc., aNew York corporation, general partner,Plaintiffs-Appellants,v.RAMADA HOTEL OPERATING COMPANY, a Delaware corporation;Jose L. Torres, an individual, Defendants-Appellees. No. 92-16737. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 11, 1994.De...
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This is a class action brought on behalf of 44 employees (“plaintiffs”) of EG & G Energy Measurements Group, Inc. (“EG & G”), who took an early retirement option offered by EG & G. The plaintiffs were participants in a savings plan established by EG & G for its employees and filed this action in state court for damages pursuant to section 501(a)(1)(B) of the Employee Retirement Income Security ...
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Daniel Duran appeals -his sentence for armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d); and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c)(1). He claims the district court erred by imposing an enhancement for reckless endangerment when no nexus existed between the crime for which he was convicted and his reckless behavior. Duran also claims that th...
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The only significant issue in this case is whether the district judge participated in plea bargaining in such a manner as to enti- *899 tie the defendant to -withdraw his plea. We decide that he did not. Facts Frank was charged with various narcotics offenses and went to trial. On the third day of trial, April 9, 1992, the lawyers were to be in the courthouse at 8 a.m., to appear in court f...
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Luis Enrique Gallegos-Corrales was convicted, among other things, for using or carrying a firearm “during and in relation to” a drug trafficking crime in violation of 18 U.S.C. § 924(c). He challenges his conviction on the ground that the district court’s jury instructions were inadequate. The court instructed the jury as follows: And in order for the defendant to be found guilty of violating T...
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We must decide, among other' issues, whether a substantive crime and a conspiracy to commit that crime are separate offenses for sentence enhancement purposes. I During September 1991, the Drug Enforcement Agency (“DEA”) was conducting an investigation of appellants Fuentes and Lopez. Special Agent Jose Martinez arranged a meeting with them through informants Maria Arellano and Arturo Rodrigu...
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Opinion Appellant contends that the trial court erred by denying his motion to vacate a stipulation for paternity blood tests. Appellant bases his appeal on four contentions: (1) that the stipulation constituted an unknowing and unintelligent waiver of his constitutional right to a fair trial, (2) that the trial court exceeded its jurisdiction by giving effect to a stipulation that violates pub...
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Opinion The Travelers Indemnity Company of Illinois (Travelers) appeals from an order dismissing its first amended complaint after the demurrer of the respondents 1 was sustained without leave to amend. The pivotal issue in this case relates to the application of the 180-day limitations period set out in Code of Civil Procedure section 3493A. We *1436 conclude...
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Opinion Factual and Procedural Background Lilian Hale (Hale) was driving on the wrong side of the road when she collided with a car driven by Carol DeFelice (DeFelice). Hale was taken to a hospital where it was determined she had severe left-side paralysis and multiple malignant brain tumors. She died 10 days later. DeFelice and her husband (DeFelices) filed a personal injury action against...
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*1467 Opinion Petitioners Thomas P. Nagle, Director of the California Employment Development Department (EDD), and Molly Coye, former Director of the California Department of Health Services (DHS), seek a writ of mandate to compel respondent superior court to grant a protective order prohibiting their depositions (Code Civ. Proc., § 2025, subd. (i)) in a lawsuit brought by real party in inter...
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Opinion We review a decision of respondent Workers’ Compensation Appeals Board (Board) that 80 percent of petitioner’s permanent disability should be apportioned to preexisting disability. Because we agree with petitioner that the evidence does not support apportionment, we will annul the Board’s order after reconsideration. Factual and Procedural History Petitioner’s employment with respon...
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Opinion Maurice Overten appeals a judgment entered after a jury convicted him of first degree residential robbery (Pen. Code, 1 §§ 211, 212.5, subd. (a)) and found true the special allegation he was armed with a firearm during the commission of the offense (§ 12022, subd. (a)(1) 2 ). He contends the true finding to the firearm enhancement should be set aside because the *1500 prosecutor’s...
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The Estate of one spouse sued in district court to challenge the IRS determination that the other spouse was “innocent” of liability on the joint returns. FACTS Silvio and Martha Ravetti were divorced in 1982. They agreed to share tax liability arising out of past returns, and specifically provided for how to apportion liability if Martha were determined to be an “innocent spouse.” Silvio die...
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William Kaplan appeals the district court’s grant of summary judgment to the defendants in his class action alleging securities violations against Medstone International, Inc., various Medstone officers and directors, and an underwriter (hereinafter collectively referred to as “Medstone,” or “the defendants,” unless individual identification is required). Georgiane Kramer appeals the dismissal as ...
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OPINION Greg and Gene Malone are members of the Wintun Indian Tribe in California. After they were denied higher education grants by the Bureau of Indian Affairs (“BIA”), they initiated this action in federal district court, seeking a declaration that the BIA’s administration of the Higher Education Grant Program violated the Administrative Procedure Act (“APA”), and an order enjoining th...
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38 F.3d 1068 STATE OF ALASKA, Plaintiff-Appellant,v.Bruce BABBITT, Secretary of the United States Department ofthe Interior; Thomas Albert; and Virginia Alberton behalf of Sammy Albert, a minor,Defendants-Appellees. No. 93-35684. United States Court of Appeals,Ninth Circuit. Submitted June 9, 1994.*Decided Oct. 11, 1994. 1 John T. Baker, Asst. Atty. Gen., Anchora...
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Opinion by Judge LETTS I. OVERVIEW Neil T. Nordbroek’s (“Nordbrock”) failure to turn over requested tax returns or taxpayer information to the Internal Revenue Service (“IRS”) resulted in an IRS assessment of $75,000 against Nordbrock and a lifetime injunction prohibiting him from preparing tax returns for others. Nordbrock now appeals from the district court’s judgment for t...
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Opinion Plaintiff Constance Jean Chatwood Hull appeals the judgment of dismissal entered by the trial court after it sustained the demurrers of defendants Elizabeth Irwin, M.D. and Elizabeth Irwin, M.D., Inc. (herein together referred to as Dr. Irwin) and Central Pathology Service Medical Clinic (the Laboratory). Facts The facts, as alleged in the complaint, are as follows: In October 1987,...
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Opinion Grace Joyce Ford appeals judgments in favor of Miller Meat Company (Miller) and Alpha Beta Company (Alpha Beta) in a nonjury *1199 trial. Ford sought to recover damages for injuries sustained when she bit into a fragment of bone contained in ground beef purchased at an Alpha Beta supermarket. We affirm. Our Supreme Court in Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617 [4...
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Opinion Ed Robinson and Audrey Wilson (residents) appeal from the trial court’s denial of their petition for a writ of administrative mandamus. Residents sought to set aside a decision of the Mobilehome Rent Review Commission (Commission) of the City of Yucaipa (City) allowing a capital improvement rent increase to real party in interest, C. Mouchawar, the owner of Hidden Village Mobile H...
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Alex V. Stein appeals his convictions and sentence for mail fraud, wire fraud, securities fraud and money laundering. He argues that mailings by a state government agency warning investors of his fraudulent scheme did not constitute a violation by him of the mail fraud statute. He also challenges the jury instructions on the money laundering counts. He further contends his sentence is invalid bec...
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Opinion Lisa P. (Lisa) and Kenneth L. (Kenneth) each appeal from an order terminating their parental rights to Cicely L. (Cicely). Kenneth alone appeals from a subsequent order similarly terminating their parental rights to Cicely’s older brother, David L. (David). Kenneth contends that reasonable reunification services were not provided to him because he was not allowed any visitation with David...
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Opinion A jury convicted defendant Alejandro M. Lee as charged in count 1 of attempted murder of Turk Young, Jr., with premeditation and deliberation (Pen. Code, §§ 664, 187) 1 and in count 2 of assault with a firearm against Sean Green (§ 245, subd. (a)(2)). The jury found true the special allegations as to both counts that Lee had personally used a firearm (§ 12022.5, subd. (a)) and as to c...
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Opinion Decedent, William Stanley Petersen (William), and respondent, Loretta Victoria Petersen (Loretta), were married for 32 years prior to his death on February 26, 1992. William is also survived by his only child from a previous marriage, Shirley Ann Orr, her husband who is the executor of William’s estate, appellant James C. Orr, and their two children. Loretta has two daughters from a pre...
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37 F.3d 1414 39 ERC 1923, 25 Envtl. L. Rep. 20,016 OREGON NATURAL RESOURCES COUNCIL, INC., an Oregon non-profitcorporation; Wendell Wood; Mark Gaffney,Plaintiffs-Appellants,v.BUREAU OF RECLAMATION; United States Department ofInterior; Kirk Rodgers, in his capacity as Project Manager,Klamath Project Mid-Pacific Region, Bureau of Reclamation,United States Department of the Interior; Den...
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Appellant Elmar Lee Pettit is a plumbing contractor who, with appellant Audrey Pettit, his wife, owns both Nor-Cal Plumbing, Inc. and North Bay Plumbing, Inc. Nor-Cal is union, and North Bay is non-union. Appel-lees, Local 343 and the employee trust funds in which it participates, brought this action under Section 301 of the Labor Management Relations Act (“LMRA”) and Section 502 of the Employee R...
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OPINION ** Sanchez was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The government sought a sentence enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), which requires a minimum fifteen-year sentence if a defendant found guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g) has at least three previous conviction...
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Randall Weaver appeals his conviction of failure to appear for his trial in violation of 18 U.S.C. § 3146. We affirm. I On January 18, 1991, Weaver was arraigned on charges of violating federal firearms laws. 1 He was informed, orally and in writing, that his trial was set for February 19, and was released on bail. Some days after Weaver’s release, the court clerk informed ...
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The holder of a mechanic’s lien against property subject to forfeiture appeals from that portion of the district court’s judgment denying costs, fees, and interest on the lien principal, arguing that the district court erred by concluding that an innocent lien-holder was not entitled to interest under federal forfeiture law. For the reasons which follow, we reverse and remand. FACTS AND PRIOR PROC...
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Opinion —In People v. Howard (1992) 1 Cal.4th 1132 [5 Cal.Rptr. 268, 824 P.2d 1315] (Howard), we held that the defendant validly admitted having served an alleged prior prison term, despite the trial court’s failure to advise him expressly of the privilege against self-incrimination, because, “considering the totality of the relevant circumstances, . . . defendant’s admission of the prior...
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Opinion A celebrated decision by Division Five of this court construed the Uniform Partnership Act (Corp. Code, § 15001 et seq.) as requiring that income generated by the winding up of a dissolved law firm’s unfinished business is—absent a contrary agreement—to be allocated to the former partners according to their respective interests in the defunct partnership. (Jewel v. ...
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Opinion Plaintiffs Jesus Hernandez and his wife Mary Hernandez 1 appeal a judgment on their third amended complaint against defendants Carde Pacific Corporation (Carde) and Badger Construction Equipment Company (Badger) for damages for personal injury arising from Employee’s on-the-job injury on the premises of his employer National Steel and Shipbuilding Company (NASSCO). Plai...
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Opinion Section 1985.3 of the Code of Civil Procedure provides a procedural mechanism designed to give notice to a “consumer” when the consumer’s “personal records” are being subpoenaed by a “subpoenaing party.” In this case, we conclude that when a county is a defendant in a civil *1842 action alleging sexual harassment and seeks to subpoena personal records (here, medical r...
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Atlas Turner appeals the district court’s denial of its motion to set aside a default judgment. Atlas Turner contends that the district court lacked jurisdiction because service of process was not effective under the Foreign Sovereign Immunities Act. We have jurisdiction of the timely appeal under 28 U.S.C. § 1291. We remand to determine whether Atlas Turner had actual notice in 1986 of the com...
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39 F.3d 919 The PEOPLE OF the STATE OF CALIFORNIA, et al., Petitioners,Public Service Commission of the District of Columbia, etal., Petitioners-Intervenors,v.FEDERAL COMMUNICATIONS COMMISSION, et al., Respondents,BellSouth Corporation, et al., Respondents-Intervenors.MCI TELECOMMUNICATIONS CORPORATION, Petitioner,Maryland People's Counsel, et al., Petitioners-Intervenors,v.FEDERAL COMMUNICATI...
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29 Cal.App.4th 272 (1994) 34 Cal. Rptr.2d 490 CITY OF EL MONTE et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; RUDY LEE BULLEN, Real Party in Interest. Docket No. B084361. Court of Appeals of California, Second District, Division Five. October 14, 1994. *274 COUNSEL James Francis Wilson for Petitioners. No appearance for Respondent. R. Samuel Paz, David A. Xavier and...
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Opinion I Introduction Robert Lee Jenkins (Jenkins) appeals the judgment entered following his conviction by jury of two counts of torture (Pen. Code, § 206), one count of mayhem (Pen. Code, § 203), two counts of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), one count of corporal injury to a cohabitant (§ 273.5, subd. (a)) and one count of possession of a firearm by a felon...
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Opinion The owners of a house rented to a tenant they knew had a drinking problem and kept firearms in the rented dwelling. While under the influence of alcohol, the tenant accidentally shot a visitor. We hold the landlords did not owe a duty of care to the visitor because the injury was not foreseeable. Facts and Procedure On February 8, 1992, plaintiff Lisa Sturgeon visited a ...
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In this case, we again consider the securities-fraud claims raised by disappointed investors in Software Toolworks, Inc., who appeal the district court’s summary judgment in favor of auditors Deloitte & Touche and *1082underwriters Montgomery Securities and PaineWebber, Inc. We affirm in part, reverse in part, and remand. I. In July 1990, Software Toolworks, Inc., a producer of software for person...
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ORDER Judges Tang and D.W. Nelson voted to deny respondent’s petition for rehearing and reject the suggestion for rehearing en banc. Judge Choy voted to grant the petition for rehearing and recommended granting the suggestion for rehearing en banc. The full court was advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The ...
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Opinion Appelant, Cynthia Gudger, made two telephone calls to the secretary of the presiding judge of the municipal court during which she threatened to buy a gun and shoot another judge handling an unlawful detainer matter against her if she was evicted from her apartment and became homeless. Appellant contends that her conviction for threatening the life of a judge (Pen. Code, § 76) 1 must ...
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Opinion A magistrate purported to reduce two felony charges to misdemeanors because she believed the evidence presented at the preliminary hearing was insufficient to hold the defendant to answer felony charges. Neither offense was a felony-misdemeanor (wobbler) as to which the reduced crime was a misdemeanor. We conclude the magistrate was without power to reduce the offenses to these misdemea...
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Opinion Plaintiff and appellant Charles John “Chuck” Davis, Sr., appeals after the trial court granted summary judgment in favor of defendant Consolidated Freightways (CF) and other defendants in plaintiff’s action arising out of plaintiffs alleged wrongful termination by CF, his former employer. 1 We conclude plaintiff failed to raise triable issues of material fact concerning...
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Opinion The County of San Bernardino (the county) and Richard Williams, Sheriff of the county (appellants), have appealed from a judgment granting the petition for writ of mandate (Code Civ. Proc., § 1085) of Deputy Sheriff Jeanette Tapia (Tapia). The judgment ordered the county to pay Tapia her salary and benefits for the period she was away from work because of work-related injuries. 1 Appe...
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Opinion Apellant Carol Butcher was an overnight guest at the home of Donald and Peggy Gay in Pine Mountain on August 4, 1990. On February 20, 1991, appellant filed this action against respondent Donald Gay. She alleged that she had contracted Lyme disease “as a result of exposure to infested ticks” on respondent’s property, and that respondent had “failed to spray the area, post signs or preven...
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38 F.3d 462w 30 Fed.R.Serv.3d 477, 40 Fed. R. Evid. Serv. 985 Maria E. ESPINOZA; Gilbert Espinoza; Mary Ellen Cale,guardian ad litem, Plaintiffs-Appellees,v.Brian DUNN; Geody Okamoto; Patrick Martin; Dan Smith,Defendants-Appellants. Nos. 91-56353, 91-56389 and 92-56018. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 7, 1993. Decided Oct. 20, 19...
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38 F.3d 455w Mark KOCH, Plaintiff-Appellant,v.James G. RICKETTS, Defendant-Appellee. No. 92-16517. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 14, 1994.Decided Oct. 20, 1994. NOTE: THE COURT HAS WITHDRAWN THIS OPINION ...
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Robin and Diane Miller (“Taxpayers”) seek a refund of federal income taxes withheld from their wages. They filed an action in district court pursuant to 28 U.S.C. § 1346(a)(1). The district court dismissed the action as untimely. We have jurisdiction over the final judgment pursuant to 28 U.S.C. § 1291 and affirm the district court. FACTS Taxpayers failed to prepare a timely income tax return...
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Appellant United States of America (the “government”) appeals the acquittal of Kenneth Steven Bailey (“Defendant”) of charges involving production of, and trafficking in, counterfeit access devices in violation of 18 U.S.C. § 1029(a). We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse the district court. I. Background A. Facts A cellular phone places a call by transmitting its pe...
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Juveniles # 1 and # 2 pleaded guilty to simple assault. The district court sentenced them to probation. One of the conditions of probation is that the juveniles not possess a firearm until they are 21 years old. The juveniles are members of the Confederated Tribes of the Umatilla Indian Reservation. They contend it is a religious tenet of their tribe that participation by young men in tribal hu...
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We consider the effect of subsequent changes in Title 18 of the United States Code on our holding in United States v. Myers, 451 F.2d 402 (9th Cir.1972), that a federal defendant subject to state prosecution can enter a federal guilty plea knowingly and intelligently only if he or she has been informed that the court lacks authority to impose a sentence to be served concurrently with any state ...
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This case concerns the application of the rule that evidence obtained as a result of an “egregious violation” of the Fourth Amendment must be suppressed in administrative proceedings. See Gonzalez-Rivera v. I.N.S., 22 F.3d 1441 (9th Cir.1994); Adamson v. C.I.R., 745 F.2d 541 (9th Cir.1984). Jacob Ikperha Orhorhaghe, a Nigerian citizen, petitions for review of the decision ...
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I. INTRODUCTION Drug Emporium, Inc. appeals a permanent injunction granted by the district court on summary judgment in Parfums Givenchy, Inc.’s (“Givenchy USA’s”) action for copyright infringement under 17 U.S.C. § 602(a). Givenchy USA owns the United States copyright to the box design of Amarige perfume. Givenchy USA brought the instant action after its representatives purchased a bottle...
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This appeal requires us to consider whether a sentence may be challenged on a petition pursuant to 28 U.S.C. § 2255 despite the fact that the challenge could have been made on direct appeal but was not. Background Petitioner Alvin Schlesinger was indicted on one count of distributing approximately one kilogram of cocaine, in violation of 21 U.S.C. § 841(a)(1). On December 7, 1990, Schlesinger...
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OPINION The debtor in possession failed to make postpetition contributions to its employees’ health plans and pension funds in breach of its obligation under collective bargaining agreements (CBAs) with its unions. It sought and was granted an interim order pursuant to 11 U.S.C. § 1113(e) providing prospective downscaling of benefits in four CBAs and sanctioning, nunc pro tunc, ...
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Opinion If this case is an example, the term “civil procedure” is an oxymoron. Plaintiff’s attorney appeals a discovery order that he pay $950 in sanctions. We echo the trial court’s comment when he reviewed the facts that gave rise to this order: “Unbelievable.” What is believeable, however, is that the order is not appealable. Nevertheless, we treat it as a writ petition. No court should ha...
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Opinion Robert Gruntz appeals from the judgment entered following a jury trial in which he was convicted of the misdemeanor of failing to provide for his two minor children (Pen. Code, § 270). He was sentenced to 360 days in county jail. He appealed to the superior court, which affirmed the judgment in an opinion filed September 1, 1993, which was certified for partial publication. We ord...
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Opinion This writ petition arises from the effort by real party in interest Landmark Insurance Company (Landmark) to extricate itself from a “bad faith” lawsuit. Landmark’s insured had alleged that numerous insurers including Landmark had provided coverage for a claim, that they had failed to defend and indemnify in connection with that claim, and that this failure breached their contract...
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Opinion Defendant and cross-complainant Ike Naber owns a condominium unit in a property development managed by plaintiff and cross-defendant Park Place Estates Homeowners Association, Inc. (Association). After Naber refused to permit the Association to conduct repairs in his unit, the Association filed suit and obtained preliminary injunctive relief. Naber later cross-complained, alleging...
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Opinion Factual and Procedural Background In 1990, David Balestrieri and Michael Keenan (collectively investors) opened securities accounts with Titan/Value Equities Group, Inc. (Titan). At the time of opening the accounts, they signed forms agreeing to submit any dispute to arbitration before the National Association of Securities Dealers *485 (NASD). In 1992, however, ...
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OPINION OVERVIEW The Appellant Karen Raiman, a Chapter 7 Debtor, filed a motion to enforce discharge in the bankruptcy court relating to certain tax claims asserted against her by the California State Board of Equalization. In addition, Debtor requested compensatory sanctions be imposed against the creditor. The bankruptcy court found that the tax claims were not dischargeable and en...
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Opinion In this action seeking rescission of agreements relinquishing a child for adoption through a licensed private adoption agency, plaintiffs Lea Tyler and Matthew Darrah 1 appeal from the trial court’s judgment in favor of defendants Children’s Home Society of California (CHS), Davis Crisis Pregnancy Center, Inc. (DCPC), Kathy Huntziker, and Dee Heszler. On appeal plaintif...
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Opinion These consolidated cases represent two attempts to place defendant on outpatient status from Patton State Hospital, pursuant to *619 Penal Code section 1600 et seq. 1 The trial court refused to authorize outpatient status. 2 The first appeal, No. E012545, was filed after a hearing on January 14 and 15, 1993. The second appeal, No. E013445, was ...
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Opinion Renita S. petitioned for a writ of mandate after she was taken into custody under an arrest warrant issued by the juvenile court. Renita claims her arrest and detention were illegal because as a nondetained minor, she should have been personally served with a notice to appear at the initial *555 hearing as prescribed by Welfare and Institutions Code 1 section 660, subdivision (c). T...
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This is an appeal brought by Plaintiff-Appellant Hillel Aronson (“Aronson”) to recover $1.5 million in pension benefits he alleges are owed him by the Resolution Trust Corporation (“RTC”), as receiver for Columbia Savings and Loan Association (“Columbia”), a federally insured savings association. After the RTC denied Aronson’s claim for payment of the alleged benefits, he brought the present ac...
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38 F.3d 1100 LAS VEGAS NIGHTLIFE, INC., d/b/a Club Tabu; G. Group, Inc.,d/b/a Black Garter; Springston, Inc., d/b/a Nasty's; G ofL Corp., d/b/a Chaser's; Las Vegas Afterdark, Inc., d/b/aNight Gallery; Smart Alley, Inc., d/b/a Alley's; and AscotPromotions, Inc., d/b/a Black Dominion, Plaintiffs-Appellants,v.CLARK COUNTY, NEVADA, et al., Defendants-Appellees. Nos. 93-15864, 93-16184. ...
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38 F.3d 1490 63 USLW 2279, 24 UCC Rep.Serv.2d 1224 Patrick J. MURPHY, et al., Plaintiffs-Appellees,v.FEDERAL DEPOSIT INSURANCE CORPORATION, et al.,Defendants-Appellants.Patrick J. MURPHY, an individual; Murphy's Markets, Inc., aCalifornia Corporation; Ramsey Marketing and Management Co.("RAMCO"), aka: Ramsay Marketing and Management Co., aCalifornia Corporation, Plaintiffs-Appellants,v....
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Defendant George Ancheta appeals his convictions for distribution of crystal methamphetamine and conspiracy to possess crystal methamphetamine with intent to distribute. Ancheta also appeals the sentence imposed on him under the Sentencing Guidelines, contending that the district court should not have increased his offense level based on his obstruction of justice. We affirm the district court in...
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• Opinion by Judge D.W. NELSON; Dissent by Judge BEEZER. OVERVIEW Mark William Paul Staufer was convicted after a jury trial on a one count indictment, charging him with possession with intent to distribute “LSD” (lysergic diethamide acid). He raises a variety of claims on appeal, challenging both his conviction and his sentence. We conclude that his challenges to his conviction are without meri...
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Opinion Here we complete a trilogy of cases in which we consider discovery of financial records of people living with ex-spouses. *724 In In re Marriage of Tapia (1989) 211 Cal.App.3d 628 [259 Cal.Rptr. 459], we held that contributions by third persons to an ex-spouse’s living expenses should be considered by the trial court in determining the ex-spouse’s ability ...
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Opinion A subcontractor provided the underlying base material for streets in a new subdivision and contracted with Granite Construction Company to pave these streets. After Granite finished the paving, the sub-base proved defective, damaging Granite’s work, and government inspectors refused to approve the street work. After protracted negotiations, Granite applied a seal coat to the stree...
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*732 Opinion SW-846 is not the name of some new gasoline additive marketed by an oil company. It is the title of a manual compiled by the United States Environmental Protection Agency (EPA) dealing with the collection and testing of hazardous waste. The former plant manager of an Anaheim paint manufacturing company, Marion Hale, was convicted under state law of five counts of put...
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37 F.3d 1421 UNITED STATES of America, Plaintiff-Appellant,v.Jerry NACHTIGAL, Defendant-Appellee. No. 91-10212. United States Court of Appeals,Ninth Circuit. Oct. 27, 1994. On Remand from the United States Supreme Court. Before: CHAMBERS, TANG, and PREGERSON, Circuit Judges. 1 The judgment of this court is reversed and the case is remanded to...
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Opinion An individual was injured by an intraocular lens that had been surgically implanted in his eye. He sued the manufacturer and distributor of the device for damages. His suit was dismissed by the trial court. We conclude that the victim’s claims of negligence and strict liability under state tort law are preempted by federal law. His claim for breach of the implied warranty of ...
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Opinion Introduction It is hard to imagine another set of legal terms with more soporific effect than indemnity, subrogation, contribution, co-obligation and joint tortfeasorship. Perhaps because the words describe legal relationships between multiple parties, they are vaguely reminiscent of complex mathematical equations which, after all, also describe relationships, except in numbe...
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Opinion —This case presents the question whether a private safety employee who has occasional firefighting duties may state a cause of action against a third party, not the employer, for injuries caused by the third *535 party’s negligence in starting a fire. We conclude that a private safety employee may state such a cause of action, and that such a claim is not barred by th...
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—I respectfully dissent. I do not join the majority in its conclusion that a horizontal gaze nystagmus (HGN) test administered as a field sobriety test by a police officer is based on a “novel scientific principle” and may not be relied on by an experienced police officer in support of a conclusion that a suspect is intoxicated unless it is shown to meet the Kelly/Frye criteria. (People v. Kelly (...
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*556Opinion —Plaintiff’s ankles were badly injured when her General Motors (GM) car collided with another vehicle. She sued GM, asserting that defects in her automobile allowed its left front wheel to break free, collapse rearward, and smash the floorboard into her feet. GM denied any defect and claimed that the force of the collision itself was the sole cause of the injuries. Expert witnesses de...
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Opinion I. Introduction In this case we hold that a tort action for an employer’s negligent or reckless failure to provide adequate premises security despite knowledge of danger to its employees is precluded by the exclusive remedy provisions of the workers’ compensation law (Lab. Code, §§ 3600, 3601, 3602). Thomas J. Arendell and Chase Wilson appeal from a summary judgment, based on worker...
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Opinion Timothy M. (M.) appeals from an order following a hearing on an order to show cause regarding child support and attorney fees and costs. 1 He contends the trial court erred in refusing to apply the conclusive presumption of paternity pursuant to Family Code section 7540 (Evid. Code, § 621) and finding him to be the biological father of Lindsay (the child). 2 Statement of Facts and...
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Opinion Donald Park, doing business as Century Auto Body & Painting, appeals from a special judgment (Lab. Code, § 3726) 1 assessing a penalty of $2,000 against him for failure to obtain workers’ compensation insurance in violation of section 3700. He challenges the constitutionality of the statutory scheme and in particular section 3726 which, he contends, violates the separat...
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*1009 Opinion Introduction Appellant Rudy L. appeals from an order declaring him to be a ward of the court pursuant to Welfare and Institutions Code section 602 based on his commission of vandalism in violation of Penal Code section 594. Statement of Facts On the afternoon of April 29, 1993, appellant spray-painted the letter “A” on the wall of an empty building located at 5327 East Bev...
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Opinion Introduction Defendant and appellant James S. Hamada, M.D. (Hamada) and plaintiff and respondent G. Karlin Michelson, M.D. (Michelson), both of whom practice orthopedic surgery, entered into several agreements providing that Hamada would share his office facilities with Michelson and provide certain billing and other services through his office personnel in exchange for payme...
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Opinion Plaintiff, Wen Chang, appeals from a summary judgment in favor of defendant, Redding Bank of Commerce (the Bank), in Chang’s action for unjust enrichment and to impose a constructive trust on funds he claims the Bank misappropriated. The action arises out of the Bank’s setoff of $200,000 against a debt owed the Bank from the business account of Paragon Development Enterprises, Inc...
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Opinion A jury convicted defendant of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(2)), grossly negligent discharge of a firearm (Pen. Code, § 246.3) and possession of a firearm by a convicted *978 felon (Pen. Code, § 12021, subd. (a)). The jury found defendant personally used a firearm (Pen. Code, § 12022.5, subd. (a)), inflicted great bodily injury (Pen. Code, ...
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Opinion This appeal presents two issues. Is a 1991 amendment to Welfare and Institutions Code section 11350, subdivision (a)(2) to be applied retroactively? It states a noncustodial parent’s reimbursement to the county for welfare benefits paid on behalf of a minor must be equivalent to “[t]he amount of support which would have been specified in an order for the support and maintenance of...
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Opinion Investor appeals from an order declaring her to be a vexatious litigant (Code Civ. Proc., § 391 et seq.) and awarding sanctions in favor of defendant brokers. 1 Statement of the Case Procedural History of Case No. 217876: On October 15, 1991, plaintiff filed a complaint for damages against defendant in Kern County Superior Court. Plaintiff alleged causes...
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Is evidence obtained from continued eavesdropping by a hotel operator who inadvertently intercepts a telephone call admissible under the Federal Wiretapping Statute? I On October 24, 1980, John Schweizer was murdered while driving his taxi in Las Vegas. On November 5, 1980, a clerk at a Las Vegas hotel had been connecting a telephone call to Maggie Jo Adams’ hotel room when he inadvertently h...
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39 F.3d 936 John ALLEN, Plaintiff-Appellee,v.CITY & COUNTY OF HONOLULU, Defendant,andRobert Johnson, Sgt.; Richard Salgado, Sgt.; JohnRodrigues, Jr., A.C.O.; A.C.O. Friedl; A.C.O.Ramseyer; Dane Griffin, A.C.O.,Defendants-Appellants. No. 93-16802. United States Court of Appeals,Ninth Circuit. Submitted Oct. 3, 1994.*Decided Oct. 28, 1994. Thomas D. Farrell, Deput...
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This case arises out of years of effort by the NLRB and Roofers’ Local Union No. 40 (“the Union”) to obtain documents from an employer relevant to the Union’s collective bargaining agreement. The failure to produce documents has resulted in civil and criminal contempt proceedings, first against the employer, and later against the employer’s secretary, Phyllis Wesson. We appointed a special mast...
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The Native Village of Noatak (“Noatak”) appeals the dismissal, after remand from the United States Supreme Court and this court, of its action against the Commissioner of the Alaska Department of Community and Regional Affairs (the “Commissioner”). Noa-tak’s action on remand alleged that the Commissioner racially discriminated against Noa-tak by implementing certain regulations under a revenue-...
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Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit granted limited to the following question: Whether petitioner’s convictions under 18 U.S.C. 1001 for knowingly making false statements in pleadings filed with the bankruptcy court are barred by the so-called “judicial functionn” exception of Section 1001....
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38 F.3d 1514 Celestus BLAIR, Jr., Plaintiff-Appellee,v.Steven SHANAHAN; James Lassus; Stephen Paulson; FrankJordon; City of San Francisco, Defendants-Appellants,andPeople of the State of California, Intervenor.Celestus BLAIR, Jr., Plaintiff-Appellee,v.PEOPLE OF the STATE of California, Intervenor-Appellant,andSteven Shanahan; James Lassus; Stephen Paulson; FrankJordon; City of San Fran...
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39 F.3d 940 GTE CALIFORNIA, INC., Petitioner,Pacific Bell; Nevada Bell; National Cable TelevisionAssociation, Inc. ("NCTA"); Pacific TelesisGroup, Intervenors,v.FEDERAL COMMUNICATIONS COMMISSION; United States ofAmerica, Respondents,California Cable Television Association; National CableTelevision Association, Inc., Respondents-Intervenors. No. 93-70924. United States Court of App...
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39 F.3d 222 63 USLW 2285, 95 Ed. Law Rep. 513 Grace KEAMS; Jolene Cordero; Pandora Lee; Bunny McCorkey,Individually and on Behalf of All Others SimilarlySituated, Plaintiffs-Appellants,v.TEMPE TECHNICAL INSTITUTE, INC., Defendant,andAccrediting Bureau of Health Education Schools/Program,(ABHES); National Association of Trade andTechnical Schools, (NATTS), Defendants-Appellees. No. ...
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James Wayne McGeshick appeals his conviction for distributing cocaine in violation of 21 U.S.C. §§ 841(a) and 859. He entered a conditional plea of guilty reserving the right to appeal the district court’s decision to give an instruction requiring the Government to prove that a “detectable” amount of cocaine was delivered, rather than McGeshick’s requested instruction requiring the Government t...
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Opinion For 30 years, the state has attempted to build a freeway through South Pasadena (the City). However, that attempt has been unavailing because the City has refused to enter into freeway agreements required by statute. (See Sts. & Hy. Code, § 100.2; hereafter undesignated code citations are to the Streets and Highways Code.) In 1982, section 100.4 was *1284 enacted to a...
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Opinion In a multidefendant trial involving various drug charges, a jury convicted Juan Manuel Perez of one count of selling and *1317 furnishing cocaine (Health & Saf. Code, 2 § 11352, subd. (a)), one count of possession of cocaine (§ 11350, subd. (a)) and one count of possession of cocaine for sale (§ 11351). The jury also convicted Guadalupe Onate of one count o...
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Opinion This case concerns the validity of California’s obscene matter statutes, Penal Code 1 sections 311 and 311.2, as applied to distributors of such matter under the right to privacy set forth in article I, section 1, of the California Constitution. Finding section 311.2 invalid on this privacy right ground, the Municipal Court, San Diego Judicial District, sustained a demu...
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Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge POOLE. I. Facts In 1979, debtor Victoria Farms, Inc. (“Victoria Farms”) mortgaged its farm to Equitable Life Assurance Society of the United States (“Equitable”). See S.E.R. tab 1, Ex. A, at 7. The mortgage took the form of a “deed of trust,” which simply granted Equitable a lien on the property. In return, Victoria Farm...
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Opinion —An impartial and independent judiciary is indispensable to our legal system. Of equal importance is public confidence in the independence and integrity of the judiciary, because the effective functioning of our legal system is dependent upon the public’s willingness to accept the judgments and rulings of the courts. (Cal. Code Jud. Conduct, com. to canon l.) 2 As a con...
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*709 Opinion —We focus for the second time in two years on Code of Civil Procedure section 425.13, subdivision (a) (section 425.13(a)). 1 This section bars inclusion of a punitive damages claim in certain actions against health care providers unless the plaintiff first demonstrates a “substantial probability” that he “will prevail” on the claim. In Central Pathol...
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A wealthy businessman, with a net worth estimated at $10 million, dies. Instead of leaving his estate—or any part of it—to his wife, as might be expected, his will directs that the entire fortune go to his lawyer, a man who happens to be his neighbor and, we are told, best friend. Can any sensible person doubt that, whatever the testator’s intent, these facts are a compelling blueprint for a will ...
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Opinion When Joseph Miranda sued respondent Fireman’s Fund Insurance Company and its agent, appellant Edward J. Haslam, for negligence and bad faith, Fireman’s Fund settled with Miranda for $1,050,000 and cross-complained against Haslam for indemnity. In a special verdict, the jury held Haslam liable to Fireman’s Fund for the full amount of this settlement. After Haslam’s posttrial motion...
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Opinion The issue presented is whether a secured creditor who obtains a defaulted debtor’s property can be subject to restitution for the amount of the value of goods furnished the debtor by a third party. The answer is no: unless there are unusual circumstances the equitable remedy of restitution must defer to the rights given a secured creditor by the California Uniform Commercial Code....
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Opinion We affirm the summary judgment granted to the City of Long Beach in this drowning case. Background A four-year-old girl drowned in an apartment house swimming pool, owned by the Azar family and its alter ego, Grande Properties. For approximately the three previous years, the City of Long Beach had, pursuant to its *1372 municipal code, routinely inspected th...
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Cindy Blanco, a resident of Yuba County, and Karen Wilson and Melissa Goetz, residents of Humboldt County, and others similarly situated, sued Eloise Anderson as Director, California Department of Social Services (DSS), and S. Kimberly Belshe as Director, California Department of Health Services (DHS). The plaintiffs contended that the defendants were in violation of the federal Food Stamp Act, 7 ...
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39 F.3d 1420 John R. GASHO, Sr.; Sharon L. Gasho, Plaintiffs-Appellants,v.UNITED STATES of America; Northrop Worldwide AircraftServices, Inc., an Oklahoma corporation, et al.,Defendants-Appellees.John R. GASHO, Sr.; Sharon L. Gasho; Millardair, Ltd., aCanadian corporation, Plaintiffs-Appellants,v.William L. BALL; Roger Mannhalter; John J. Howe, Jr.,Defendants-Appellees. Nos. 92-16988...
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39 F.3d 963 GREENHORN FARMS, a Partnership, Plaintiff-Appellant,v.Mike ESPY, Secretary of the U.S. Department of Agriculture;and U.S. Department of Agriculture, an agency ofthe United States Government,Defendants-Appellees. No. 92-36546. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1993.Decided Nov. 2, 1994. C. Tom Arkoosh and Michael Day, ...
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39 F.3d 951 63 USLW 2293, 1994-2 Trade Cases P 70,816 LEGAL ECONOMIC EVALUATIONS, INC., a California Corporation,Plaintiff-Appellant,v.METROPOLITAN LIFE INSURANCE COMPANY, et al., Defendants-Appellees.IBAR SETTLEMENT CO., Plaintiff-Appellant,v.METROPOLITAN LIFE INSURANCE COMPANY; TransamericaOccidental Life; Manufacturers Life; MLSettlement Services, Inc.; NationalStructured Settlemen...
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39 F.3d 912 Doris A. SCOTT, individually and as Personal Representativeof the Estate of John William Scott, deceased,Plaintiff-Appellant,v.James L. HENRICH; David J. Flamand; Butte-Silver Bow LawEnforcement Agency; City of Butte; County ofSilver Bow, Defendants-Appellees. No. 91-35429. United States Court of Appeals,Ninth Circuit. Submitted June 3, 1992.*Decided Sept. 9, 1994.O...
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39 F.3d 966 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,Plaintiff-counter-defendant-Appellant,v.Betty FALNESS, Personal Representative of the Estate of AnnaHugg and the Estate of John Hugg,Defendant-counter-claimant-Appellee. No. 91-15626. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 12, 1992.Submission Deferred March 17, 1993.Resubmitted June 23, 1994....
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39 F.3d 957 63 USLW 2306, 10 IER Cases 11 UNITED STATES of America ex rel., Plaintiff,Harold R. FINE, Plaintiff-Appellant,v.CHEVRON, U.S.A., INC.; Bechtel Petroleum Operations, Inc.;and Williams Brothers Engineering Company,Defendants-Appellees.UNITED STATES of America ex rel., Plaintiff,Harold R. FINE, Plaintiff-Appellant,v.The UNIVERSITY OF CALIFORNIA, and The Board of Regents ofthe Uni...
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ORDER The government’s request for publication is GRANTED. The memorandum filed August 22,1994, is redesignated as an authored opinion by Judge Goodwin. OPINION After pleading guilty to charges of conspiracy and mail fraud, Rice Aircraft, Inc., a distributor of high-technology aircraft fasteners, and Bruce Rice, its chief executive officer (collectively “Rice”) appeal a final judgment ord...
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Opinion This appeal is from a wardship order (Welf. & Inst. Code, § 602) based on findings that appellant Jerry R. violated Vehicle Code sections 10851 (auto theft) and 12500, subdivision (a) (driving without a license) and Penal Code section 246.3 (willful discharge of a firearm in a grossly negligent manner). Appellant, who was only 12 years old, was removed from the custody of his pare...
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*1342 Opinion Asefa Taye (Taye), doing business as Pride Home Care Medical, was a provider in the state medical program, administered by the Department of Health Services (Department). Following an audit by the State Controller, it was determined that Taye had been overpaid in the amount of $235,099 for the period from January 1, 1989, through March 31, 1990. Taye filed an administrative appe...
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Opinion The City of Los Angeles (City) appeals the dismissal of its action against Centex Telemanagement, Inc. (Centex) for money due on an unpaid tax assessment on grounds the action was barred by the statute of limitations. Centex provides telecommunications management services for a fee to small and medium-sized businesses located in the City. Centex paid the City an annual busine...
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Opinion In this wrongful death action, appellants contend that the City of San Buenaventura (City) and the County of Ventura (County) and their *1404 agents, failed to adequately “confine” a patient. Tragically, this patient, Kevin Kolodziej (Kolodziej) walked out of a hospital and stabbed 90-year-old Mrs. Velasta Johnson to death. The trial court sustained demurrers wit...
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*1425 Opinion Introduction Plaintiff and appellant Robert Roman (Roman) appeals from the order of dismissal of his action for wrongful termination against defendants and respondents Usary Tire and Service Center and Dan Usary (collectively, Usary) for failure of his counsel to appear at a hearing on an order to show cause (OSC). Roman contends the trial court erred and abused its discretion...
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Opinion Barry J. Spinello sued Amblin Entertainment, Universal City Studios, Inc., and Steven Spielberg for damages, alleging they had appropriated his ideas and were using them for a new movie. Relying on a written agreement which included an arbitration clause, the defendants moved to compel arbitration. The motion was denied and the defendants appeal. We reverse and remand with directi...
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Opinion San Benito County Superior Court (hereafter the Superior Court) issued a writ of prohibition ordering the Agricultural Labor Relations Board (hereafter the ALRB) to “cease and desist any and all further attempt to impose liability on Heublein in connection with the Hat case.” The ALRB petitioned this court for a writ of mandate ordering the Superior Court to vacate its order grant...
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The estate of Brian Barlow appeals from an order of the district court dismissing Barlow’s civil rights action for failure to substitute the estate within the 90 day period provided by Federal Rule of Civil Procedure 25(a)(1). The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and we have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and reman...
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The issue in this case is the validity of an Immigration and Naturalization Service (“INS”) regulation requiring nonimmigrants to provide truthful answers to all questions asked of them by immigration officers, regardless of materiality. The Board of Immigration Appeals (“BIA”) upheld the immigration judge’s (“IJ”) finding that Conchita Romero was deportable because she had given a false statemen...
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Anthony Barone appeals his convictions on one count of conspiracy and nine counts of uttering forged securities. See 18 U.S.C. §§ 371, 2, 513(a). He claims, inter alia, that the government faded to prove the necessary interstate jurisdictional element of the offenses, and that his conduct therefore did not constitute a federal crime. We agree and reverse his convictions. I. The facts of...
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We originally decided this appeal on the briefs. Subsequently we granted the petition for rehearing. We now withdraw the memorandum disposition filed October 6, 1993 and substitute this opinion. In this appeal, Fredrick Garcia-Cruz appeals his 41-month sentence, imposed following remand from this court for resentencing. Garcia-Cruz was originally sentenced to 200 months, following a jury trial,...
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38 F.3d 1547 UNITED STATES Of America, Plaintiff-Appellee,v.Willie ROBERTS, Jr., Defendant-Appellant.UNITED STATES Of America, Plaintiff-Appellee,v.Alvin Charles JOHNSON, Defendant-Appellant. Nos. 93-10067, 93-10122. United States Court of Appeals,Ninth Circuit. Nov. 3, 1994. Before: POOLE, BEEZER, and NELSON, Circuit Judges. 1 It is ordered that t...
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Opinion I. Introduction In this case we hold that an absence of legal representation in administrative proceedings, and purported misadvice by an agency official as to the proper method of taking an administrative appeal, do not excuse a prospective litigant from the requirement of exhausting administrative remedies as a jurisdictional prerequisite to resort to the courts. Park ...
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39 F.3d 247 SHEE ATIKA, Plaintiff-Counterclaim Defendant-Appellee,v.SEALASKA CORP., Defendant-Counterclaimant Plaintiff-Appellant.SHEE ATIKA, Plaintiff-Counterclaim Defendant-Appellant,v.SEALASKA CORP., Defendant-Counterclaimant Plaintiff-Appellee,Atikon Forest Products, Inc.; Silver Bay Logging,Incorporated, Defendants-Counterclaimants-Appellants. Nos. 93-35187, 93-35258. United Stat...
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A consent decree entered into by various California state officials and a class, including all inmates at the California Medical Facility (“CMF”) in Vacaville, California, gives rise to these three separate appeals and a cross-appeal. The inmates brought an action under 42 U.S.C. § 1983 to challenge deficient medical and psychiatric care, indecent confinement conditions, and treatment and segregat...
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Jose Carlos Gonzalez-Alvarado is a Mexican citizen who lawfully entered the United States in September 1985 as a permanent resident alien married to a United States citizen. According to the government, soon after his arrival Gonzalez had sexual intercourse with his 11-year-old stepdaughter on at least two occasions. He was subsequently convicted in Washington state on two counts of first degre...
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39 F.3d 991 KONIAG, INC., Plaintiff-Appellee,v.KONCOR FOREST RESOURCE; Ouzinkie Native; Natives of KodiakVXM, Inc.; HZB, Inc., Defendants-Appellants.KONIAG, INC., Plaintiff-Appellant,v.KONCOR FOREST RESOURCE; Ouzinkie Native; Natives of KodiakVXM, Inc.; HZB, Inc., Defendants-Appellees. Nos. 93-36138, 93-36164. United States Court of Appeals,Ninth Circuit. Argued and Submitted...
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39 F.3d 238 24 UCC Rep.Serv.2d 1041 Michael R. MASTRO, an unmarried man, individually, andMichael R. Mastro, as executor for the Estate of Joan KellyMastro, Deceased, and Michael R. Mastro as Beneficiary ofthe Estate of Joan Kelly Mastro, Deceased, and the Estate ofJoan Kelly Mastro, Deceased, Plaintiffs-Appellants-Cross-Appellees,v.Winifred Q. WITT, an unmarried woman, individually, andWi...
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Opinion by Judge WIGGINS; Dissent by Judge NOONAN. FACTS AND PRIOR PROCEEDINGS E. Robert Nigro is a federal prisoner. During the events relevant to this appeal, Nigro was a pretrial detainee at the Federal Correctional Institute (FCI) at Terminal Island, California. On March 6, 1988, FCI officials required Nigro to provide a urine sample. This sample tested positive for illegal drugs. Prison offi...
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Appellant attacks his guilty plea. He claims that the judge impermissibly participated in plea bargaining, his attorney rendered ineffective assistance, and his plea was coerced. The record does not support him. I. FACTS Andrade-Larrios pleaded guilty to two drug charges. In exchange, the government promised a 151 month prison sentence and dismissal of a firearms charge. His attorney had nego...
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Opinion Plaintiff Jordan-Lyon Productions, Ltd. (J-L) appeals from summary judgment granted in favor of defendant Cineplex Odeon Corporation (Cineplex) on plaintiff’s complaint for damages based on allegations that Cineplex violated J-L’s lien rights under Code of Civil Procedure sections 491.440 and 491.460. The complaint alleges that in another action by J-L against New Visions Entertai...
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Opinion This insurance declaratory relief action arises from an incident in which Anthony Yamamoto was shot by a minor, Bruce B. (Bruce), who used his father’s gun. Relying on factual findings of intentional conduct made in juvenile court and applying collateral estoppel, the trial court granted summary judgment in favor of Western Mutual Insurance *1478 Company (Western), th...
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*1491 Opinion I. Introduction Plaintiff appeals from a judgment entered after the trial court determined, on a summary judgment motion, that plaintiff’s attorney malpractice action was time barred. The applicable statute of limitations (Code Civ. Proc., § 340.6) 1 is tolled during that period “[t]he attorney continues to represent the plaintiff regarding the speci...
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Gloria Price, the owner of a house resting on a contaminated former landfill, appeals from various orders of the district court in her private action for recovery of response costs under CERCLA 1 and for injunctive relief under RCRA 2 against the United States Navy and Harry Moses. In particular, Price appeals from the orders of the court which (1) dismissed Price’s claim ...
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42 F.3d 486 41 Fed. R. Evid. Serv. 434 UNITED STATES of America, Plaintiff-Appellee,v.John Nez BEGAY, Donald Benally, Paul Kinlicheenie, Earl RoyLee, Peter MacDonald, Sr., Ned M. McKensley, Alfred Scott,Sr., Anna Sorrell, Evangeline Begay Wauneka, Kee Ike Yazzie,Defendants-Appellants. Nos. 93-10165, 93-10167 to 93-10175. United States Court of Appeals,Ninth Circuit. Argued and ...
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*1502 Opinion Petitioner, La Seigneurie U.S. Holdings, Inc. (LSUS), seeks a writ of mandate directing the superior court to set aside an order denying its Code of Civil Procedure section 170.6 1 motion to disqualify Judge Ronald M. Sohigian. On January 7, 1994, real party in interest, Paul M. Clark, Jr. (Clark), filed a complaint against, among others, LSUS. Judge Jerold A. Krieger was as...
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513 U.S. 18 (1994) U. S. BANCORP MORTGAGE CO. v. BONNER MALL PARTNERSHIP No. 93-714. United States Supreme Court. Argued October 4, 1994. Decided November 8, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *20 Scalia, J., delivered the opinion for a unanimous Court. Brandford Anderson argued the cause for petitioner. With him on the briefs were Dale G. Higer and David...
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An attorney was subpoenaed to produce material before a grand jury which he obtained from a client. The district court ruled that the attorney-client privilege would not be violated, and denied a motion to quash. We affirm. I. FACTS Mr. Alexiou, an attorney, deposited money in his law firm bank account. The deposit included a $100 bill which turned out to be counterfeit. The Secret Service ev...
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Carolyn Kainuma, a supervisor in the Adult Probation Division of the First Circuit Court of the state of Hawaii, and Warren Asaeda, a probation officer, appeal the district court’s denial of their summary judgment motion asserting qualified immunity from suit as to the 42 U.S.C. § 1983 claims raised in Susan Bator’s action against them. Bator claimed that she suffered racial and sexual harassment ...
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39 F.3d 1046w 65 Empl. Prac. Dec. P 43,349 Bobby Rydell MARSHALL, Plaintiff-Appellant,v.Daryl F. GATES, etc., et al., Defendants-Appellees. No. 93-55022. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 4, 1994.Decided Nov. 8, 1994. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 44 F.3d 722. ...
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Opinion by Chief Judge Wallace; Dissent by Judge Reinhardt. Yasser Abdulrahim Shooshtary seeks review of the judgment of the Board of Immigration Appeals (Board) denying his application for relief from deportation based on extreme hardship. The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(B)(2), 242.21 (1992). We have jurisdiction over this timely application pursuant to 8 U.S.C. § 1105a(a)...
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Opinion by Judge TANG; Dissent by Judge NOONAN. The government appeals the district court’s grant of summary judgment in favor of Albert Joseph Alexander. The district court concluded the government did not establish probable cause that $30,060 seized from Alexander was connected to drugs as required to warrant forfeiture under 21 U.S.C. § 881(a)(6). The government argues the narcotics detection ...
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Berry appeals pro se the district court’s grant of the prison officials’ motion for a directed verdict in his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291 and affirm. We review de novo a grant of a directed verdict. Zamalloa v. Hart, 31 F.3d 911, 913 (9th Cir.1994). A directed verdict is proper when the evidence permits only one reasonable conclusion. ...
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39 F.3d 1054 J. Bruce McCUBBREY, Donald L. Bartels, Virginia H. Meyer,Calvin B. Ward, and McCubbrey, Bartels, Meyer &Ward, a California partnership,Plaintiffs-Appellants,v.Dolores M. VENINGA, George Hook and McBride, Baker & Coles,an Illinois partnership, Defendants-Appellees. No. 93-15579. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 14, 1994.De...
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Opinion Carlos Isaguirre Salazar (appellant) pled guilty to one count of sale of cocaine. (Health & Saf. Code, § 11352.) The court suspended imposition of sentence and placed appellant on three years of probation upon condition that he serve one year in county jail. Appellant violated probation twice, and each time probation was revoked and reinstated on the condition that he waive credit...
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29 Cal.App.4th 1597 (1994) 35 Cal. Rptr.2d 470 QUAIL BOTANICAL GARDENS FOUNDATION, INC., Plaintiff and Appellant, v. CITY OF ENCINITAS et al., Defendants and Respondents. Docket No. D020059. Court of Appeals of California, Fourth District, Division One. November 8, 1994. *1599 COUNSEL Johnson, O'Connell & McCarthy, Kevin K. Johnson and John Evan Edwards for Plaintiff and Appellant. Mark A. Po...
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Opinion Ronald P. and Carol Thon, Rolling Hills Estates, Ltd., Rolling Hills Sanitation, Inc., and Raymond Grimm, Sr. (Plaintiffs) *1548 appeal a postjudgment order awarding certain costs to Ronald Thompson and Jack Wireman. After the Rainbow Municipal Water District (the District) rejected their proposed sewer plan in the Fallbrook area, Plaintiffs filed a complaint, followed by several am...
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Lazaro Garcia is a citizen of Cuba and a permanent resident of the United States. He is also a person who is serving a sentence in federal prison after having been convicted of distribution of cocaine. See 21 U.S.C. § 841(a)(1). That conviction makes him an aggravated felon. See 8 U.S.C. § 1101(a)(43); 18 U.S.C. § 924(c)(2). As an aggravated felon he is subject to the prov...
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40 F.3d 298 In re Ray Gordon DAVENPORT & Carolyn Jean Davenport, Debtors.WESTERN FARM CREDIT BANK; Sierra-Bay Federal Land BankAssociation, Appellants,v.Ray Gordon DAVENPORT; Carolyn Jean Davenport, Appellees. No. 93-15989. United States Court of Appeals,Ninth Circuit. Submitted Nov. 4, 1994.*Decided Nov. 4, 1994. Marsha D. Galinsky, Sheppard, Mullin, Richter &...
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OPINION The Chapter 7 trustee filed an adversary proceeding seeking to recover certain renewal commissions paid to the debtor postpetition. The bankruptcy court denied the trustee’s motion for summary judgment and granted the debtor’s motion for summary judgment, determining that the renewal commissions represented earnings from postpetition services of the debtor that were not property o...
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Opinion In this appeal, we are asked to review the continued validity of County of Los Angeles v. Hartford Acc. & Indem. Co. (1970) 3 Cal.App.3d 809 [83 Cal.Rptr. 740], with respect to the liability of a surety on a subdivision tax bond required for condominium conversion. On April 17, 1990, Amador Oaks Partners, as principal, and Golden Eagle Insurance Company ...
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Opinion In this personal injury automobile collision lawsuit, plaintiffs-appellants were awarded a $10,000 verdict. Claiming the award was inadequate they moved for a new trial. The motion was denied. Appellants contend the trial court erred in denying their new trial motion because the jury rendered a quotient verdict, defense counsel committed misconduct during jury voir dire, and defen...
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Opinion In this personal injury action, plaintiffs sued the defendant (Dye Creek) after their car struck one of Dye Creek’s black Angus bulls that was positioned on the roadway of State Highway 44 in Lassen County. The collision occurred at night and pitted the plaintiffs’ 1977 Toyota Corolla against a bull that weighed approximately 1,200 to 1,500 pounds. Finding that Dye Creek owed no duty to...
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Opinion Defendant Jose Juan Garnica appeals his convictions of two counts of first degree murder (Pen. Code, § 187, subd. (a)), and one count of *1560 conspiracy to commit murder (Pen. Code, §§ 182, 187). The jury found true a multiple-murder special-circumstance allegation (Pen. Code, § 190.2, subd. (a)(3)) and, with respect to each of the murder counts, found true allegations that defendant...
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OPINION I The Debtors in these two appeals filed Chapter 13 plans which separately classified nondischargeable student loans. In both cases, the plans provided for 100% payment on the student loans, with much smaller percentages on the remaining unsecured claims. The trustee objected to both plans on the ground that the classification, and different treatment, constituted unfair disc...
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8 Cal. 4th 728 (1994) 883 P.2d 388 35 Cal. Rptr. 2d 270 THE PEOPLE, Plaintiff and Respondent, v. DEBRA JEANIE ROMERO, Defendant and Appellant. In re DEBRA JEANIE ROMERO on Habeas Corpus. Docket No. S030160. Supreme Court of California. November 10, 1994. *734 COUNSEL Joan Temko Anyon, under appointment by the Supreme Court, and Jill M. Bojarski, under appointment by the Court of Appeal, for Defen...
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Opinion In this proceeding, plaintiffs challenge the constitutionality of Welfare and Institutions Code section 14016.5, which provides that MediCal beneficiaries will be assigned to and enrolled in a managed care plan *1762 unless the Medi-Cal beneficiary timely elects to obtain services from a fee-for-service provider and certifies that he or she has an established relation...
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Opinion Kenny Wayne Tate appeals from a trial court finding that he is a mentally disordered offender (MDO) within the meaning of Penal Code section 2962. 1 Appellant concedes the order is supported by substantial evidence but argues that the trial court should have ordered his discharge pursuant to section 2968 because of an improvement in his mental condition. We affirm and h...
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Opinion Petitioners, Fairmont Insurance Company (Fairmont) and Transamerica Insurance Company (Transamerica) (collectively referred to as petitioners), seek to have us reverse an order granting summary adjudication of a cause of action for declaratory relief relating to their duty to defend. In connection with their request, we issued an alternative writ. After considering the matter, inc...
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Opinion A jury found Daniel Joseph Forster guilty of one count of driving under the influence of alcohol in violation of Vehicle Code 1 section 23152, subdivision (a), one count of driving while having a blood-alcohol concentration of .08 percent or more in violation of section 23152, *1750 subdivision (b), and one count of driving with a suspended license in violation of section 14601.2, s...
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Opinion San Diego Police Officers Association (POA) and Harold Goudarzi appeal a judgment for the City of San Diego (City) on the grounds it *1739 was error to conclude an underlying action (the Loche action), against Goudarzi and the City, did not arise out of an act or omission in the scope of Goudarzi’s employment as a police officer, within the meaning of Government Code ...
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Opinion Noreen Martin, a long-term employee of Lockheed Missiles & Space Company, Inc., was laid off at age 65. She sued Lockheed, alleging sex and age discrimination under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) and the cognate provision of the California Constitution (Cal. Const., art. I, § 8). Lockheed’s motion for summary judgment was granted; Marti...
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*1688 Opinion Penal Code section 667 authorizes imposition of an additional five-year prison term on “any person convicted of a serious felony” for each separate prior conviction of “a serious felony in this state” the person has suffered. Section 667 defines “serious felony” by reference to subdivision (c) of Penal Code section 1192.7. We revisit these provisions in a case in which the Peo...
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I dissent from the decision affirming the district court’s order finding Reinhold Mar-soner in contempt of court. The district court ordered Marsoner to sign the disclosure directive authorizing disclosure of information and production of all documents in possession of a bank, including Austrian banks, under threat that noncompliance would result in his incarceration and imposition of a fine. Mars...
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The United States appeals the district court’s judgment that Stephen Rykoff did not act “willfully,” within the meaning of 26 U.S.C. § 6672, in failing to pay delinquent withholding taxes during the period beginning February 12, 1982, until his resignation on March 18, 1982. We affirm. *306 BACKGROUND Stephen R. Rykoff (“Rykoff’) was President of Fox Drilling Company (“Fo...
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Ernesto Segura-Gallegos appeals his convictions for conspiracy to possess with intent to distribute cocaine and for possession with intent to distribute cocaine. Segura-Galle-gos was the passenger in a van used as a lookout during a cocaine transaction with an undercover officer. After trial, a jury found Segura-Gallegos guilty of conspiracy to possess and distribute cocaine in violation of 21 U....
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34 F.3d 731 29 Fed.R.Serv.3d 1117 Angel MARTEL, Plaintiff-Appellant,v.COUNTY OF LOS ANGELES, Sherman Block, Sheriff of Los AngelesCounty, Elias Cuevas, Harry DeLong, Richard Mariadiaga, MarkShaugnessy, Herb Howland, Jeffrey Lammers, Margarito Robles,and Frank Yanes, Defendants-Appellees. No. 91-56268. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 7, 1...
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40 F.3d 1001 John ALLEN; Terry Smith, Plaintiffs-Appellees,v.Ted SAKAI; Harold Falk; John Cabral; Clayton Frank;Adele Fujita; Leonard Gonsalves; Leiann Kaimikaua; GaryKaplan; Gerald Mendiola; Cinda Sandin; Francis Sequiera;Laurence Shohet; William Oku; Malcolm Lee; TerrenceAllen; and Ray Suenaga, in their official and individualcapacities, Defendants-Appellants. No. 93-16780....
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Opinion by Judge THOMPSON; Dissent by Judge PREGERSON. Richard Allan Moran pleaded guilty to three counts of capital murder and was sentenced to death by a Nevada state court. After exhausting his state court appeals, he filed a petition for habeas corpus in the United States District Court for the District of Nevada pursuant to 28 U.S.C. § 2254. The district court denied his petition and Moran a...
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41 F.3d 421 63 USLW 2326 RUMSEY INDIAN RANCHERIA OF WINTUN INDIANS; Table MountainRancheria; Cher-Ae Heights Indian Community of the TrinidadRancheria; San Manual Band of Mission Indians, ViejasReservation of the Capitan Grande Band of DieguenoMission Indians and Hopland Band of Pomo Indians; BaronaBand of Mission Indians; Sycuan Band of Mission Indians;Agua Caliente Band of Cahuilla ...
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Opinion I. Introduction Appellant Robin Re Sharp timely appeals from his conviction after a jury trial of seven felony counts of forcible lewd and lascivious conduct with a child under the age of fourteen years (Pen. Code, § 288, subd. (b) [counts 3, and 5, relating to Joann G.; counts 20, 22, 24 and 26, relating to Tammy G.; count 44, relating to Vanessa P.]), 1 one felony count of forcibl...
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Opinion I. Introduction Frederick Douglas Stills appeals from judgment of conviction for battery with serious bodily injury (Pen. Code, § 243, subd. (d)). He contends that the trial court committed reversible error by (a) failing to obtain a voluntary and intelligent waiver of his constitutional rights before he admitted a prior conviction, (b) not excluding evidence of the prior conviction i...
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41 F.3d 429 CHEMSTAR, INC., Plaintiff-Appellee,v.LIBERTY MUTUAL INSURANCE COMPANY, Defendant-Appellant,andGenstar Corporation; National Union Fire Insurance Companyof Pittsburgh, Pa.; Industrial Insurance Company of Hawaii,Ltd.; American Home Assurance Company; Employers Insuranceof Wausau; United Insurance, Defendants.CHEMSTAR, INC., Plaintiff-Appellant,v.LIBERTY MUTUAL INSURANCE CO.; G...
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We decide whether an award of both statutory copyright infringement damages and trademark infringement damages for the sale of video game cartridges constitutes an inappropriate “double recovery.” I George Sheng, the sole proprietor of Dragon Pacific International, imports electronic products from China. Nintendo of America, Inc.’s (“Nintendo”) principal business is the marketing of h...
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Edmond Paul Khaton appeals the sentence imposed on him under the Sentencing Guidelines for bank robbery and use of a firearm during a crime of violence. Khaton contends that the district court (1) erroneously concluded that it lacked discretion to depart downward, even though his “career offender” status significantly over-represented his criminal history, and (2) should have granted him a two-po...
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Opinion Appellant, Brenelli Amedeo, S.P.A., appeals from a judgment of dismissal after the trial court sustained respondents’ demurrer without leave to amend his complaint. Appellant contends the doctrine of res judicata does not preclude the present action as it involves a different primary right. It also contends an action seeking to impose alter ego liability may be brought outsid...
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*1800 Opinion Frank Boccato and Ronald Duffaut (Boccato and Duffaut or appellants) appeal the dismissal of their action challenging an ordinance enacted by the City of Hermosa Beach (the City) that required them to obtain conditional use permits in order to continue to sell alcoholic beverages at their respective businesses, Boccato’s Groceries and Dan’s Liquor. Boccato’s Gr...
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40 F.3d 1013 Shirley BROCKMAN, as natural mother and special conservatorof Michael D. Brockman, an incapacitated person,Plaintiff-Appellee,v.MERABANK, a federal savings bank, Defendant,andResolution Trust Corporation, a corporation, instrumentalityan agency of the United States, Defendant-Appellant. No. 93-15505. United States Court of Appeals,Ninth Circuit. Argued and Submitted Se...
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OPINION Transamerica Premier Insurance Company (“Appellant”) appeals from a district court’s affirmance of a bankruptcy court’s summary judgment holding Appellant liable to the customers of an escrow agent to whom Appellant had issued a bond. We affirm. FACTS AND PRIOR PROCEEDINGS E. Robert Brown and his wife, Montana residents, owned an escrow business named Guaranty Escrow Ser...
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OPINION A Chapter 7 1 debtor had his discharge revoked based on fraud and concealment of insurance proceeds. The debtor appeals. We REVERSE. I. FACTS The debtor/appellant, Ron Dean Bowman (“Bowman”) received his Chapter 7 discharge on October 1,1992. On October 19,1992, the appellee, Belt Valley Bank (“Belt Valley”) filed a complaint to revoke Bowman’s dis ...
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Opinion Donald Gordon Black (Black), Catherine Black and six related companies owned and/or controlled by Black (collectively, appellants) appeal the dismissal of their action against respondents Bank of America N.T. & S.A. (the Bank) and certain bank officers. They assert the court improperly sustained without leave to amend respondents’ demurrer to their first amended complaint. We affi...
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Opinion At the time the instant judgment was entered Code of Civil Procedure section 1 685.040 did not allow attorney fees incurred in enforcing a judgment to be included as costs. The section was later amended to allow such fees where the underlying judgment includes an award of attorney fees arising from contract. Here we hold that an award of attorney fees incurred after the date of the ...
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Opinion In this action Dr. W. Thomas Coombe (Dr. Coombe) sues San Diego Hospital Association, doing business as Sharp Healthcare and Sharp *12 Memorial Hospital (Sharp Memorial or the hospital), and the manufacturer of a KTP laser to recover damages for injuries he allegedly sustained while performing surgery at the hospital. The hospital’s demurrer to the strict liability ca...
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44 F.3d 726 63 USLW 2348, 25 Envtl. L. Rep. 20,183,22 Media L. Rep. 2513 ASSOCIATION OF NATIONAL ADVERTISERS, INC.; GroceryManufacturers of America, Inc.; Soap and DetergentAssociation; National Food Processors Association; TheSociety of the Plastics Industry, Inc.; The American Paperand Forest Association; The American AdvertisingFederation; The American Association of AdvertisingA...
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41 F.3d 447 63 USLW 2328, 95 Ed. Law Rep. 892 Phyllis Wright HARRIS, on her own behalf and on behalf ofher three children; Beverly Harris Butler,formerly Beverly Harris; Samuel Harris,Plaintiffs-Appellants,v.JOINT SCHOOL DISTRICT NO. 241; Board of Trustees ofDistrict No. 241; Trent Woods, Chairperson ofBoard; Al Arnzen, Superintendent,Defendants-Appellees,v.CITIZENS PRESERVING AMERICA...
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Opinion —Historically, under the common law fresh-complaint doctrine, evidence that the alleged victim of a sexual offense disclosed or reported the incident to another person shortly after its occurrence has been held admissible, as part of the prosecution’s case-in-chief, in a subsequent criminal prosecution for that offense. In California, the governing decisions have explained that th...
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*116 Opinion With the support of the district attorney who successfully prosecuted him, appellant Jose Barraza moves for “stipulated reversal” of his misdemeanor conviction. We shall deny the motion. After an eight-day trial in the San Francisco Superior Court, appellant was acquitted of attempted murder, attempted voluntary manslaughter and assault with a deadly weapon, but was convicted o...
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Opinion Introduction This appeal contests the trial court’s order imposing a $1,500 sanction on each party’s attorney in a civil liability action. After examining the entire record, we find that the court’s order violated due process because counsel were neither notified of the court’s intent to impose sanctions nor given an opportunity to respond before the court imposed the sanctio...
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Opinion Plaintiff appeals from a judgment entered in favor of defendant after jury verdict. On or about March 17, 1989, appellant DRG/Beverly Hills, Ltd. (hereinafter DRG), as lessor, and respondent Chopstix Dim Sum Cafe & Takeout III, Ltd., through its general partner, Chopstix III, Inc. (hereinafter collectively Chopstix), as lessee, entered into a written lease agreement for premi...
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*280 Opinion In this opinion we hold that Los Angeles County’s (County) policy of deeming its off-duty safety police officers to not be engaged in the performance of their duties is ineffective to insulate the County from respondeat superior liability for the alleged wrongful conduct of an off-duty safety police officer in the course of making an arrest. We therefore reverse a summary judgmen...
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Opinion Following denial of his motion to dismiss on speedy trial grounds, defendant and appellant Marcos A. Gutierrez pleaded nolo contendere to first degree residential burglary, one prior serious felony conviction, and two prior prison terms. The court sentenced appellant to a term of nine years in state prison. Appellant appeals from the judgment with a certificate of probable cause pursuan...
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Opinion This action upon an indemnity contract was tried by the court upon agreed facts. The court found that appellant United States Elevator Corporation (Elevator) is not entitled to indemnity from respondent Pacific Investment Company (Pacific) for Elevator’s costs of defending a third party lawsuit. We reverse. Background Pacific owned a building in Pacific Palisades. Pacifi...
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Opinion In this medical malpractice case arising out of an emergency room visit, plaintiff Kay James appeals from a judgment of nonsuit in favor of defendants St. Elizabeth Community Hospital and Christopher Louisell, M.D. Nonsuit was granted after plaintiff’s expert was deemed unqualified to testify under Health and Safety Code section 1799.110, subdivision (c). (All *76 fur...
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Opinion Tony M. Grissom (Husband) appeals the April 22, 1992, order granting the motion of Marilyn Grissom (Wife) to set aside an April 25, 1980, “Interlocutory Judgment of Dissolution of Marriage” as well as a marital settlement agreement, on the grounds Wife was fraudulently induced to sign a document stipulating to property and support provisions and the placement of the dissolution petition...
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Opinion Appellant Westwinds Mobile Home Park, a general partnership (hereafter Owner), owns a mobilehome park in Escondido, *88 California (hereafter City). That park is subject to an Escondido rent control ordinance which has generated significant appellate activity. 1 Owner sought a rate increase under that ordinance, and the review board granted only a fraction ...
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Debra Eggar and Roger L. Nuttbrock appeal the district court’s grant of summary judgment in favor of the City of Livingston, Montana (“the City”) as well as the court’s dismissal of their claims for injunctive and declaratory relief. 1 Eggar and Nuttbrock brought a 42 U.S.C. § 1983 action against the City and Judge Travis, alleging the City had a policy of imprisoning indigent defend...
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This bankruptcy case presents both a procedural and a substantive question: first, whether objections to a debtor’s claimed exemptions were timely under Bankruptcy Rule 4003(b); and second, whether a fully matured annuity policy is exempt under California law. *1030I On October 7, 1991, Alan and Linda Bernard filed for relief under Chapter 7 of the Bankruptcy Code. Among the assets they claimed as...
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40 F.3d 1023 FIRST PACIFIC BANK; First Pacific Bancorp, Inc.,Plaintiffs-Appellants,v.James E. GILLERAN; California State Banking Department;Federal Deposit Insurance Corporation, as Receiverfor First Pacific Bank, Defendants-Appellees.FIRST PACIFIC BANK; First Pacific Bancorp, Inc., Plaintiffs-Appellees,v.James E. GILLERAN; California State Banking Department,Defendants-Appellants. Nos...
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*183 Opinion I. Introduction In this case we hold that a petition to compel arbitration may not be denied on the ground of fraud alleged in an unverified pleading, but only upon evidentiary support by an affidavit or declaration under penalty of perjury submitted in opposition to the petition. II. Background Leo Strauch and the Milton Strauch Family Trust (hereafte...
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*212 Opinion After a 10-week jury trial, defendants Jesus Serrano Salcedo (Serrano), Marcos Nava, and Moisés Serrano Chavez (Chavez) 1 were each convicted on one count of conspiracy to sell or transport cocaine during the period from January 1, 1986, to November 21, 1991 (count 1; Pen. Code, § 182/Health & Saf. Code, § 11352), and multiple counts charging substantive o...
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Opinion In this defamation action, plaintiff Edward R. Stolz II, doing business as KWOD 106.5 FM, appeals from a judgment upon a jury’s verdict in favor of defendants KSFM 102 FM, Genesis Broadcasting Co., and Chris Collins. Plaintiff contends the trial court erred in (1) determining he is a public figure and the speech involved matters of public concern, (2) instructing the jury that to ...
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Opinion Plaintiff Conor O’Donoghue appeals after the trial court granted summary judgment against him on his cause of action for personal injuries he suffered while skiing at Bear Mountain Ski Resort. The court granted summary judgment for defendant Bear Mountain on the basis of “primary assumption of the risk.” (See Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696].) W...
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Opinion On April 29, 1993, an information was filed in Stanislaus County Superior Court charging appellant with three counts of rape in *147 violation of Penal Code section 261, subdivision (a)(4). 1 Counts IV through VI charged appellant with, alternatively, having committed rape in violation of section 261, subdivision (a)(3). 2 Appellant was also charged with the felony false imprisonm...
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Opinion Defendants Martin Santos, Chad Powers and Jose Johnny Romero were involuntary residents of the Sierra Conservation Center, a *173 penal institution located in Jamestown, California. Early in the morning of May 3, 1992, defendants attacked fellow inmate Rene Villareal, beating and stabbing him several times. The attack turned into a generalized brawl in which numerous other inmates, in...
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The cry, “There’s gold in them thar hills!” has long lured investors, dreamers, and sometimes deceivers. So it did in this case. Arizona investors laid out over $1.8 million to obtain interests in mining operations, only to discover that there was neither gold nor any hills. The mines were nonexistent, the shares worthless, and the mine promoter, Stephen Christian, 1 and his cohorts had spent t...
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40 F.3d 1033 Thomas L. GOULD, individually and as Personal Representativefor the Estate of Lyn Joanne Gould, Plaintiff-Appellee,v.AEROSPATIALE HELICOPTER CORPORATION, a Delaware corporation,Defendant-Appellant.Thomas L. GOULD, individually and as Personal Representativefor the Estate of Lyn Joanne Gould, Plaintiff-Appellee,v.SOCIETE NATIONALE INDUSTRIELLE AEROSPATIALE, a Frenchcorporation, Def...
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Dane T. Roundtree brought this action against the United States under the Federal Tort Claims Act. 28 U.S.C. §§ 1346(b), 2671-2680. In it he asserted that the Federal Aviation Administration (FAA) tortiously suspended his pilot’s certificate and revoked the operating certificate of a corporation, Alaskan Island Air, Inc. (ALA). At root, the basis of his action is that the FAA has no authority t...
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Nichols and other deputies of the Los Angeles County Sheriffs Department (“LASD”) stole nearly $8 million of confiscated drug money. Nichols was charged with a number of crimes, among them violating 18 U.S.C. § 666, which makes it a federal offense in certain circumstances to steal from organizations that receive federal funding. Nichols unsuccessfully moved to dismiss the section 666 charge, and...
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Opinion Before trial appellant admitted two alleged felony convictions—a 1991 robbery conviction in Los Angeles County and a 1988 receiving stolen property conviction in Ohio. After trial, a jury convicted appellant of robbery (Pen. Code,1 § 211), and he was sentenced to an 11-year state prison term. On appeal, appellant contends the trial court erred by conferring with the jury in the absence of ...
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Opinion Plaintiffs Tricor California, Inc., Tricor America, Inc., and Tricor International (collectively, Tricor) appeal from the judgment dismissing their case against their workers’ compensation insurer, defendant State Compensation Insurance Fund (SCIF.) Tricor alleged SCIF engaged in bad faith claims handling resulting in Tricor’s paying unjustified higher premiums and wrongly being denied ...
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Opinion Defendant Ricardo Levon Strong (defendant) was arrested while driving a stolen pickup truck. He was convicted of unlawfully taking or driving a vehicle, and of receiving stolen property. In this appeal, he contends that: 1. Defendant’s conviction of unlawful taking or driving under Vehicle Code section 10851 (section 10851) was not supported by substantial evidence, in that: a. Th...
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Opinion A jury convicted Johnaton Sampson George of one count of possession of a controlled substance in jail. (Pen. Code, 1 § 4573.6.) The trial court sentenced George to the middle term of three years in state prison, with two years stayed, to be served consecutively to an eight-year prison term *266 previously imposed in another case. On appeal, George, subseque...
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41 F.3d 471 BANK OF THE WEST, a California Banking Corporation,Plaintiff-Appellee-Cross-Appellant,v.The VALLEY NATIONAL BANK OF ARIZONA, an Arizona BankingCorporation, Defendant-Appellant-Cross-Appellee. Nos. 92-16278, 92-16382. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 13, 1993.Decided Nov. 23, 1994. Michael D. Torpey, Orrick, Herrington &a...
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Until she was terminated for involving two judicial officers in a private dispute with the Las Vegas Metropolitan Police Department, Elizabeth Gini was a Courtroom Deputy Clerk for the United States District Court for the District of Nevada. She had filed theft charges against the girlfriend of an LVMPD officer, and when the police failed to pursue the charges as she wished, filed an *10...
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40 F.3d 1046 UNITED STATES of America, Plaintiff-Appellee,v.Dominick Lee ROBERTSON, aka Dominick Lee Bruno, aka NickBruno, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Dominick Lee ROBERTSON, aka Dominick Lee Bruno, aka NickBruno, Defendant-Appellant. Nos. 93-50194, 93-50195. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 6, 1994.Deci...
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41 F.3d 480 UNITED STATES of America, Plaintiff-Appellee,v.Joshua William SANDERS, Defendant-Appellant. No. 93-10780. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 13, 1994.Decided Nov. 23, 1994. Ann C. McClintock, Asst. Federal Public Defender, Sacramento, CA, for defendant-appellant. Miguel Rodriguez, Asst. U.S. Atty., Sacramento, CA, for...
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There being a genuine issue of material fact as to the existence of a “Ponzi” scheme, the judgment of this court, 921 F.2d 968 (9th Cir.1990), is REVERSED and the case is *318 REMANDED to the district court for further proceedings. ...
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Opinion On the evening of August 21, 1993, Clarence Johnson (appellant) drove his car under the influence of alcohol. At one point that evening, he drove over the center line on the Silverado Trail in Calistoga (Napa County) and struck a car driven by Walter Dominguez, killing Dominguez. Appellant was convicted by a jury of the second degree murder of Dominguez. He was sentenced to a term of 15...
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*222 Opinion Appellant, Jerry Land, was convicted by a jury of numerous criminal offenses committed during a one-night crime spree. He appeals his conviction, contending: (1) insufficient evidence supports the finding he aided and abetted the robbery, assault with a firearm and attempted murder of Gabriel Sandoval; (2) insufficient evidence supports the conviction for receiving s...
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Opinion Following trial to the court, the court reappointed John Crane, the Director of the Nevada County Department of Social Services, as conservator of the person and estate of James M. under the Lanterman-Petris-Short Act. (Welf. & Inst. Code, § 5350 et seq.; further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) The court found the conserva...
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Opinion In this matter we are asked to join those unfortunate few of our colleagues who have been compelled to parse a statute which the mildest court has called “complicated” and the most forthright has accurately described as a “mass of cumbersome phraseology”—section 394 of the Code of Civil Procedure. 1 (Cf. Colusa Air Pollution Control Dist. v. Superior Co...
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Opinion In this proceeding we are asked to determine whether Code of Civil Procedure 1 section 425.13, which governs inclusion of a punitive damage claim in an action for professional negligence against a health care provider, applies. The underlying action was brought by Jenny S. Williams, a phlebotomist, allegedly injured while drawing blood from a violent patient at the San ...
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Opinion Defendant was convicted of six counts of lewd conduct on a child (Pen. Code, § 288, subd. (a)), and an allegation that he had committed a prior serious felony (Pen. Code, § 667, subd. (a)) was found true. He was committed to state prison for 23 years. On appeal, he contends that (1) the trial court prejudicially erred in excluding testimony of a psychotherapist that the victim was lying...
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C. A. 4th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Hess v. Port Authority Trans-Hudson Corporation, ante, p. 30....
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We have carefully reviewed the record and the district court’s decision. We affirm for *1050 the reasons fully explicated in the district court’s excellent published opinion —Ferrel v. Brown, 847 F.Supp. 1524 (W.D.Wash.1993). We adopt that opinion as our own. Ferrel does raise one issue that was mentioned in her complaint but was not decided in the district court’s opinion. She asserts th...
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We affirm a bankruptcy court disgorgement order directed to an attorney. I. FACTS On April 25,1991, John and William Decker retained The Law Offices of Ivan Halperin to represent themselves and several firms they controlled. The purpose of Halperin’s representation of the Deckers, as stated.in their retainer agreement, was: To review and analyze the financial and legal affairs of the Clients, to r...
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A former bank officer petitions for review of an order issued by an administrative agency that forever bans him from working in the American banking industry. For the reasons which follow we grant the petition and vacate the order. FACTS AND PRIOR PROCEEDINGS Delta Savings Bank (“Delta”) was a minority-owned, state-licensed savings and loan institution catering to the immigrant Asian ...
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40 F.3d 1063 Luis J. PARDO, Jr.; Julian Ramo, Co-PersonalRepresentatives of the Estate of Luis J. Pardo, Deceased, onbehalf of said Estate of Luis J. Pardo; Luis J. Pardo;Luis J. Pardo, Jr.; Dyanara Pardo, a minor; and Julian L.Pardo, a minor, Plaintiffs-Appellants,v.OLSON & SONS, INC., a Minnesota corporation; Chas. Olson &Sons, Inc., a Minnesota corporation; LillyEnterprises, a...
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A jury convicted Ladonna Riggins (“Rig-gins”) of assault with a dangerous weapon and misdemeanor assault by striking, in violation of 18 U.S.C. § 113(e) and (d). Riggins was sentenced to 24 months of incarceration after the district court adjusted her base offense level and departed downward five levels. Riggins appeals her conviction under 18 U.S.C. § 113(e) on the ground that the belt and sho...
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8 Cal. 4th 812 (1994) 884 P.2d 55 35 Cal. Rptr. 2d 598 WILLET H. BROWN et al., Plaintiffs and Respondents, v. JOSEPH GREEN et al., Defendants and Appellants. Docket No. S034105. Supreme Court of California. November 23, 1994. *816 COUNSEL N. Mark Lam, Lawrence A. Agran, Moreno, Purcell & Schindler and Hermez Moreno for Defendants and Appellants. Selman, Bretiman & Burgess, Jeffrey C. Sega...
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8 Cal. 4th 836 (1994) 884 P.2d 46 35 Cal. Rptr. 2d 589 ROSE HADIAN, Plaintiff and Respondent, v. EDWARD SCHWARTZ, Defendant and Appellant. Docket No. S037890. Supreme Court of California. November 23, 1994. *839 COUNSEL Esner, Marylander, Zakheim & Higa, Grant Marylander, Rosalyn S. Zakheim, Billie Ann U. Higa and Stuart B. Esner for Defendant and Appellant. Barton, Klugman & Oetting and ...
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8 Cal.4th 885 (1994) 884 P.2d 70 35 Cal. Rptr.2d 613 THE PEOPLE, Plaintiff and Respondent, v. DONALD E. BRANSFORD et al., Defendants and Appellants. Docket No. S033486. Supreme Court of California. November 23, 1994. *887 COUNSEL Gregg L. McDonough, Public Defender, under appointment by the Municipal Court, and Stephan Van Decker, Deputy Public Defender, for Defendants and Appellants. Margaret H....
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8 Cal.4th 765 (1994) 884 P.2d 645 35 Cal. Rptr.2d 814 VOTERS FOR RESPONSIBLE RETIREMENT, Plaintiff and Appellant, v. BOARD OF SUPERVISORS OF TRINITY COUNTY et al., Defendants and Respondents. Docket No. S034268. Supreme Court of California. November 23, 1994. *769 COUNSEL Alfred S. Wilkins for Plaintiff and Appellant. John W. Anderson, County Counsel, David L. Cross, District Attorney, and W. Jam...
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Opinion I. Introduction This is an appeal from a judgment in a consolidated proceeding involving the estate of Kathryne J. Auen (Auen) who left most of her substantial estate to her attorney, Patricia A. Carson, also known as Patricia C. Major (Carson), and to Carson’s family. The primary ruling at issue in this appeal is the trial court’s finding that Carson exerted undue influence ...
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Opinion Edward Charles Sykes, accused of burglarizing a music store and robbing a security guard, seeks dismissal of the robbery charge and other allegations. “Robbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” (Pen. Code, *481 § 211.) 1 The issue we address ...
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Opinion This writ proceeding is ancillary to a combined action and proceeding pending in respondent Sutter County Superior Court (the Sutter County action). Petitioners are plaintiffs in the Sutter County action and the real parties in interest are defendants. 1 This writ application was filed after respondent superior court denied plaintiffs’ motion to change venue. Plain...
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Opinion Baker Construction Company (Baker) sued real party in interest Butte Valley Unified School District (District) in superior court in Siskiyou County, where the District is situated, claiming balances due on a construction project completed for the District. The District filed a cross-complaint against Baker in the same court for breach of contract and fraud based on alleged constru...
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Opinion Appellant, Enrique Z., a minor, was adjudged a ward of the court in June 1992 after he admitted an allegation contained in a petition filed pursuant to Welfare and Institutions Code section 602 that he committed grand theft, in violation of Penal Code section 487. Appellant was continued as a ward of the court in October 1992 after admitting allegations, contained in a supplementa...
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513 U.S. 64 (1994) UNITED STATES v. X-CITEMENT VIDEO, INC., et al. No. 93-723. United States Supreme Court. Argued October 5, 1994. Decided November 29, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *66 Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed a concurring...
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OVERVIEW Attorney Richard N. Bigelow appealed pro se to the district court an order of the bankruptcy court imposing sanctions on Bigelow and his clients Harold Masunaga and Yukio Ayabe based on their failure to appear at a scheduled deposition. The district court dismissed Bigelow’s appeal as untimely. Bige-low appeals, contending a motion for rehearing filed by Masunaga and Ayabe in the ...
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41 F.3d 1272 30 Fed.R.Serv.3d 1491 Eric SCHROEDER, Plaintiff-Appellee,v.Pete McDONALD, Branch Administrator; Susan Segawa, SocialWorker; Ron Mico, Social Worker; George W.Sumner, DPS Director; Roland Leong,Prison Guard, Defendants-Appellants. No. 93-15169. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1, 1993.Decided Nov. 29, 1994. Steve...
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Michael Ray Williams appeals from the district court’s sentence of 108 months rendered after his plea of guilty to manufacturing and storing explosives without a license, 18 U.S.C. § 842(a)(1) and § 842(j), and possession of a firearm by a felon, 18 U.S.C. § 922(g). He originally was sentenced to 120 months in prison to be followed by three years of supervised release. Williams appealed, and on c...
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41 F.3d 493 Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown,Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,v.James F. PENMAN; W.R. Holcomb; David M. Stachowski; CecilDillard; Kenneth J. Henderson, et al.,Defendants-Appellants.Tomas ARMENDARIZ; Rosa C. Armendariz; Harry Julian Brown,Jr.; Lance A. Bukouskis, et al., Plaintiffs-Appellees,v.James F. PENMAN; W.R. Holcomb;...
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8 Cal.4th 791 (1994) 883 P.2d 960 35 Cal. Rptr.2d 418 EDWARD T. GHIRARDO et al., Plaintiffs, Cross-defendants and Respondents, v. RONALD F. ANTONIOLI et al., Defendants, Cross-complainants and Appellants. Docket No. S032435. Supreme Court of California. November 28, 1994. *794 COUNSEL Richard A. Hirsch for Defendants, Cross-complainants and Appellants. *795 Howard, Rice, Nemerovski, Canady, Rober...
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8 Cal. 4th 851 (1994) 884 P.2d 116 35 Cal. Rptr. 2d 659 DANIEL GRISET et al., Plaintiffs and Appellants, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant and Respondent. Docket No. S029701. Supreme Court of California. November 28, 1994. *853 COUNSEL Reed & Davidson and Darryl R. Wold for Plaintiffs and Appellants. Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Altshuler, Berzon, Nuss...
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I concur in the majority’s holding that the sale of documents (i.e., drawings, designs, manuals, and procedures) by Navistar International Transportation Corporation to Caterpillar Inc. is subject to the sales tax. I respectfully dissent, however, from the majority’s further holding that the computer programs are subject to sales tax. As the majority acknowledges, Revenue and Taxation Code section...
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Opinion —Do collateral estoppel principles mandate that after a judgment is reversed on appeal, the original jury’s finding on a sentence enhancing allegation affects retrial of a murder charge, even though the same jury convicted defendant of that murder? This important question, implicating California’s ability to effectively prosecute violent crime, has divided the Courts of Appeal. Finding th...
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*532 Opinion Bertrand E. Albert (Albert) appeals judgment entered against him in his action against Southern Pacific Transportation Company (SP or respondent) after the court granted respondent’s motion for summary judgment. (Code Civ. Proc., § 437c, subd. (c).) While working for SP on March 28, 1991, Albert, then 55 years old, suffered a heart attack. He had never experienc...
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Opinion Appellants spent 15 years attempting to develop a parcel of real property in the City of Thousand Oaks (City). After many denials of their applications and modification of the plans, the planning commission finally approved the proposed subdivision map and development applications with the imposition of approximately 500 conditions. The city council (Council) appealed the decision to it...
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Opinion Plaintiff and appellant Harnethia Mansell (Mansell), in propria persona, appeals a judgment denying her petition for writ of mandamus (Code Civ. Proc., § 1094.5) against defendant and respondent Board of Administration of the Public Employees’ Retirement System (PERS) (hereafter referred to as the Board). The issue is not Mansell’s basic entitlement to retirement benefits but only whe...
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Opinion Defendants appeal from an order of the trial court granting plaintiff’s motion for attorney fees following voluntary dismissal of the underlying action. 1 We shall conclude the cost of litigation was not out of proportion to plaintiffs individual stake in the outcome, and therefore plaintiff was not functioning as a private attorney general. (See Code Civ. Proc., § 1021...
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42 F.3d 1185 1995 A.M.C. 1763, 25 Envtl. L. Rep. 20,523 Randal T. BARBER, Plaintiff-Appellant,andHawaiian Navigable Waters Preservation Society, a non profitcorporation and on behalf of its members and allothers similarly situated, Plaintiff,v.STATE OF HAWAI'I, et al.; United States of America,Defendants-Appellees,andUnited States of America, et al., Defendants.HAWAIIAN NAVIGABLE WATERS P...
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I. Overview On June 7, 1993 a jury found Appellant, Wendy DeSalvo guilty on eleven counts of an indictment charging conspiracy to defraud the United States and mail fraud. Pursuant to this verdict, on October 27, 1993, District Court Judge D. Lowell Jensen sentenced DeSalvo to 60 months imprisonment and ordered her to pay restitution in the amount of $970,166.75. DeSalvo’s conviction ...
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ORDER The opinion filed July 29, 1993 and reported at 1 F.3d 853 (1993) is withdrawn. With the opinion vacated, the petition for rehearing with suggestion for rehearing en banc is moot. The parties may file a renewal of the petition for rehearing with suggestion for rehearing en banc upon the filing of a new decision by the court. ...
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OPINION The debtor attempted to modify a confirmed Chapter 11 1 plan. The bankruptcy court ruled that the confirmed plan was “substantially consummated”, thereby statutorily barring modification. The debtor appeals. We AFFIRM. I. FACTS The debtor/appellant, Antiquities of Nevada, Inc., aka Antiquities International (“Antiquities”), is a retailer in the Forum Shopping Center at Caesar’s ...
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ORDER On September 12, 1994, the Bankruptcy Appellate Panel Clerk’s office issued a Notice of Deficient Appeal and Possible Dismissal in this appeal because the notice of appeal was filed beyond the ten day time period allowed by Federal Rule of Bankruptcy Procedure 8002. Appellant’s response to the notice of deficiency has been received and reviewed. The record indicates that the notice of a...
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Opinion A city sues various defendants for damages stemming from installation of asbestos in its buildings. The statute of limitations for injury to city’s real property is three years. (Code Civ. Proc., § 338, subd. (b).) The statute of limitations begins to run when city suffers an appreciable and actual harm. Here we hold, among other things, appreciable harm is not limited to the...
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Opinion Defendant was convicted by a jury of murder of the second degree and found to have used a deadly weapon in the commission of the offense. The trial court struck the enhancement and imposed the term prescribed by law. Defendant’s salient contention on appeal is that the trial court prejudicially erred in giving an instruction which implied that voluntary intoxication has no bearing on the ...
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41 F.3d 527 1995 A.M.C. 305 Vika L. HOWARD, individually and as Personal Representativeof the Estate of Kenneth James Howard, Deceased,Plaintiff-Appellant,andRolf Howard, Plaintiff,v.CRYSTAL CRUISES, INC., a California corporation, Defendant-Appellee. No. 93-15489. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 14, 1994.Decided Dec. 1, 1994. ...
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41 F.3d 535 Jayantilal LATHIGRA; Sandhya Lathigra; Lillam Jayantilal;Reekha Nimchand; Shashi Shah, Plaintiffs-Appellants,v.BRITISH AIRWAYS PLC, a U.S. holding of British Airways,P.L.C., a Michigan corporation, Defendant-Appellee. No. 93-35072. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 8, 1994.Decided Dec. 1, 1994. Howard Alan Coleman, Rid...
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Victoria Trent appeals the district court’s grant of partial summary judgment in favor of defendants on her retaliatory discharge claim under § 704 of Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e-3(a) (1981). We reverse and remand. BACKGROUND On February 8, 1988, the Valley Electric Association (“VEA”), a rural public utility company, hired Victoria Trent to read residential electric ...
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BACKGROUND Charley Wesley Arlt was convicted of conspiring to manufacture methamphetamine and money laundering. He appeals his conviction on various grounds. Here we address only Arlt’s self-representation claim. In a memorandum disposition accompanying this opinion, we deal with Arlt’s other claims, as well as those of his codefendants. During a pretrial hearing, Arlt requested t...
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Appellants Maria Duran and Lilia Vazquez appeal from their convictions and sentences. At a jury trial, Maria Duran was convicted of conspiracy to obstruct justice and commit perjury, two counts of aiding and abetting *543 perjury, filing a false tax return, two counts of structuring transactions, and filing a false loan application. Lilia Vazquez was convicted of conspiracy to obstruct justice ...
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In this appeal we are called upon to determine whether a district court may consider a defendant’s post-offense conduct as a ground for departing upward in imposing sentence under section 4A1.3 of the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”). For the reasons which follow, we hold that the district court in the instant case did not err by taking such conduct into considerat...
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Opinion Factual and Procedural Background Real parties in interest James and Alice Porsche (the Porsches) filed a complaint in the municipal court alleging one cause of action for “fraud and deceit” against appellant Marvin D. Doyle, a licensed real estate broker, arising out of a real estate transaction. The Porsches prayed for damages in the amount of $15,000. The case went to judi...
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Opinion Introduction This appeal arises from the denial of a petition to compel arbitration. The petition raised the question whether a collective bargaining agreement excluded from arbitration a managerial decision to lay off an employee because of lack of funding or lack of work. In answering this question, the trial court properly made factual findings in ruling on arbitrability. The contract,...
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Opinion Petitioners Southern California Rapid Transit District (District), Ernesto Fuentes (Fuentes) and Nick Patsaouras (Patsaouras) (collectively, defendants) 1 seek a writ of mandate from this court compelling the trial court to grant their summary judgment motion on the complaint of the real parties in interest, Allen Laster (Laster) and Richard Yeats (Yeats) (collectively,...
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*681 Opinion Once again we return to the dispute between Bob Baker, a local automobile dealer, and Chrysler Corporation. Our review of our own records discloses that no less than 14 appeals and writ petitions have been filed in this court with respect to Baker’s attempt to sell both Ford and Chrysler products from the same location and Chrysler’s attempt to open a competing deale...
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Opinion In this petition for writ of mandate we are asked to interpret recently enacted legislation (Code Civ. Proc., § 425.16) designed to curtail a growing number of SLAPP (Strategic Lawsuits Against Public Participation) suits. 1 *737 Factual and Procedural Background At the heart of this controversy is a 22-acre portion of the California State University...
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Opinion Terry L. Schnabel appeals pretrial attorney fees and support orders payable to Marilyn J. Schnabel. I If the names of the parties sound familiar, there is good reason. We have written several opinions and the Supreme Court has authored one—Schnabel v. Superior Court (1993) 5 Cal.4th 704 [21 Cal.Rptr.2d 200, 854 P.2d 1117], Suffice it to say, this dissolution has gone on for a long time.1 ...
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Opinion This case presents an interesting twist on the old adage, “three’s a crowd.” Orange Container, Inc. (Orange Container), a close corporation in which the Schnabels own 30 percent of the stock, has become *760 a partisan in the war between them. The corporation has taken sides, and has done so in an egregious manner, implicating every single ground supporting...
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Opinion Chad S., a minor, was adjudged a ward of the court pursuant to Welfare and Institutions Code section 602. 1 A supplemental petition was filed (§§ 602 and 777). At the dispositional hearing, the court committed Chad to the California Youth Authority (CYA); the court granted a stay of the CYA commitment. Several months later, a further petition was filed. At this dispositional hearing, ...
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*663 Opinion I Statement of the Case Defendant Alejandro Garibay Lara appeals from a judgment entered after a jury convicted him of battery on a peace officer with a deadly weapon (Pen. Code, §§ 242, 243, subd. (c), 12022, subd. (b)), battery against a different peace officer, resisting arrest with a weapon (Pen. Code, § 148, subd. (b)), assault on a peace officer w...
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OVERVIEW The Cranes appeal the district court’s grant of summary judgment in favor of Co-noco, Inc., on all claims relating to injuries Daryl Crane sustained while working for an independent contractor at Conoco’s oil refinery. We affirm the district court. FACTS AND HISTORY OF PROCEEDINGS On September 10,1988, Plaintiff-Appellant Daryl Crane (“Crane”), an employee of Scaffold Re...
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41 F.3d 1306 Robert GREENSTREET; Dotti Greenstreet; Billy FrancisGreenstreet; Cindy Ehlinger Greenstreet,Plaintiffs-Appellants,v.COUNTY OF SAN BERNARDINO; Floyd Tidwell, San BernardinoSheriff; Dana Williams, Deputy Sheriff; Michael Mascetti,Deputy Sheriff; Scott Sasseen; John Powell, DeputySheriff; Buzzard, Senior Deputy; William Zehms, DeputySheriff; Steve Hauer, Deputy Sheriff; G...
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41 F.3d 1300 46 Soc.Sec.Rep.Ser. 191, Unempl.Ins.Rep. (CCH) P 14241BHaroutinoun GHOKASSIAN, Plaintiff-Appellant,v.Donna E. SHALALA, Secretary of Health and Human Services,Defendant-Appellee. No. 93-55188. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 11, 1994.Decided Dec. 2, 1994. Stephanie M. Simpson, Northridge, CA, for plaintiff-appellant. ...
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Deborah Cox appeals from the district court’s decision affirming the bankruptcy court’s finding that she was not entitled to a discharge under 11 U.S.C. § 727(a)(3) because she was not justified in failing to maintain books and records of her financial circumstances. We have jurisdiction under 28 U.S.C. § 158(d). We reverse. I. BACKGROUND This is the second time this case has ...
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We decide whether a Nevada state prison inmate is an “employee” under the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq. I Walter Morgan is an inmate at Ely State Prison in Nevada. From October 1989 to September 1990, he worked at the Ely State Prison Education Center. Like all other inmates, Morgan was required under Nevada law to work or receive vocational training for 40 ...
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Opinion —Under the Uniform Determinate Sentencing Act of 1976 (Pen. Code, § 1170 1 et seq.), the Legislature has established an elaborate sentencing scheme that prescribes terms of imprisonment for enumerated offenses and sets forth sentencing “enhancements,” which, under specified circumstances, increase the length of a defendant’s incarceration. Certain enhancements specify a...
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8 Cal. 4th 965 (1994) 884 P.2d 136 35 Cal. Rptr. 2d 679 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL TODD MASTERSON, Defendant and Appellant. Docket No. S039341. Supreme Court of California. December 1, 1994. *966 COUNSEL William Flenniken, Jr., under appointment by the Supreme Court, and Joyce Meisner Keller for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson,...
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8 Cal.4th 975 (1994) 884 P.2d 126 35 Cal. Rptr.2d 669 HAL RAPPLEYEA, Plaintiff and Respondent, v. KEN CAMPBELL et al., Defendants and Appellants. Docket No. S035028. Supreme Court of California. December 1, 1994. *978 COUNSEL Mendes & Mount, Donald K. Fitzpatrick, Joan E. Havens and Michael S. Patterson for Defendants and Appellants. Mark S. Simonian for Plaintiff and Respondent. OPINION MOSK...
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8 Cal.4th 1060 (1994) 885 P.2d 1 36 Cal. Rptr.2d 235 THE PEOPLE, Plaintiff and Respondent, v. JOSE ARNALDO RODRIGUES, Defendant and Appellant. Docket No. S007779. Supreme Court of California. December 1, 1994. *1094 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Irene Kiebert and Joel Kirshenbaum, Deputy State Public Defenders, for Defendant and Appellant....
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Opinion Petitioners (defendants below and their attorney) seek a writ to vacate an order sanctioning them for failing to personally attend a mediation session and requiring them to participate in further mediation. Plaintiffs, real parties in interest, respond by urging us to rule that once an attorney orally agrees to mediate a dispute neither that attorney nor the client ...
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Opinion Introduction This case arises from the failure of the American Bankers Insurance Company of Florida (American Bankers) to pay accident policy benefits after an insured, Phyllis Olson, drowned in a hot tub. Prior to her death, the insured had ingested a quantity of both alcohol and Valium. American Bankers refused payment based upon a policy exclusion for loss caused wholly or...
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Opinion Defendant appeals from a judgment following conviction by jury of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)) and personal use of a firearm (Pen. Code, §§ 1203.06, subd. (a)(1), 12022.5, subd. (a).) 1 Defendant alleges the court’s instruction that the word “firearm” includes “handgun” violated due process by removing a necessary element of the use clause from the jury’...
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Opinion Appellant, Attorney Jonathan B. Cole, appeals from an order requiring him to pay sanctions to the trial court for bad faith actions, pursuant to Code of Civil Procedure section 128.5. 1 Although appellant raises a number of contentions on appeal, we need resolve only one. We conclude section 128.5 sanctions may not be ordered payable to the trial court. We reverse. ...
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Opinion In this appeal we address questions related to the creation and use of personal sureties to stay execution of judgment. We conclude the 1982 enactment of a comprehensive Bond and Undertaking Law (Code Civ. Proc., § 995.010 et seq.) substantially changed the requirements for personal sureties contained in former Code of Civil Procedure section 1057. Plaintiff, Hossam Buzgheia, appeals ...
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30 Cal.App.4th 775 (1994) 37 Cal. Rptr.2d 59 THE PEOPLE, Plaintiff and Respondent, v. THOMAS C. CARTER, Defendant and Appellant. Docket No. G014447. Court of Appeals of California, Fourth District, Division Three. November 30, 1994. *777 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief ...
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Opinion Christine Mitchell appeals her conviction for possessing over $100,000 obtained from drug sales and conspiracy to commit that crime, contending: (1) Health and Safety Code section 11370.6 is unconstitutional; (2) the trial court erred by failing to grant her motion to dismiss at the end of the prosecution’s case; (3) section 11370.6 and CALJIC No. 12.37 unconstitutionally affect t...
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On December 30, 1993, we filed an opinion concerning various disputes between Albertson’s and the Internal Revenue Service. 38 F.3d 1046 (9th Cir.1993). We granted the government’s petition for rehearing as to Part II.B of the opinion, which concerned the appropriate tax treatment of deferred compensation agreements. Today we vacate Part II.B of the original opinion and affirm the Tax Court’s d...
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41 F.3d 553 Dale BARBER, Guardian Ad Litem for Candace Crytzer, BlaizeBarber, Chandra Barber, and Alissa Alexander,Minors, Plaintiffs-Appellants,v.CINCINNATI BENGALS, INC., a Foreign Corporation; LewisBillups; James Brooks; Carl Carter, et al.,Defendants-Appellees. No. 93-35854. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 4, 1994.Decided Dec. 5, 1994....
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41 F.3d 1318 GRiD SYSTEMS CORP., a California Corporation, Plaintiff,andFenwick & West, Appellant,v.JOHN FLUKE MANUFACTURING COMPANY, INC., a Washingtoncorporation; Dynatec System Corp., an Illinoiscorporation, Defendant-Appellee. No. 93-15582. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1994.Decided Dec. 5, 1994. David W. Slaby and Do...
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OVERVIEW John P. McKenzie (McKenzie) brought suit against The Travelers Insurance Company (Travelers), GTEL, GTE Corporation, and GTE Long Term Disability Plan (Plan) pursuant to the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, to recover long-term disability benefits. 1 Specifically, McKenzie relies on 29 U.S.C. § 1132(a)(1)(B) which provides...
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Maynard C. Campbell appeals his felony convictions for violating 18 U.S.C. §§ 641 (theft of government property) and 1361 (depredation against government property). Campbell harvested and sold federal timber taken from Forest Service land, and constructed berms on Forest Service roads, without authorization. We have jurisdiction under 28 U.S.C. § 1291. We affirm. I. BACKGROUND This ap...
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30 Cal.App.4th 874 (1994) 35 Cal. Rptr.2d 905 LARRY IGOR BORDEN, Plaintiff and Respondent, v. DIVISION OF MEDICAL QUALITY, Defendant and Appellant. Docket No. D018801. Court of Appeals of California, Fourth District, Division One. December 2, 1994. *876 COUNSEL Daniel E. Lungren, Attorney General, Alvin J. Korobkin, Assistant Attorney General, Billie Jan Goldstein and Anne L. Mendoza, Deputy Atto...
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Opinion Defendant was convicted of kidnapping to commit robbery (Pen. Code, § 209, subd. (b)), robbery (Pen. Code, § 211) and escape (Pen. Code, § 4532, subd. (b)), and he was found to have personally used a firearm in the commission of the kidnapping and robbery (Pen. Code, § 12022.5) and *868 to have suffered a prior serious felony conviction (Pen. Code, § 667) for which he had served a pri...
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513 U.S. 88 (1994) FEDERAL ELECTION COMMISSION v. NRA POLITICAL VICTORY FUND et al. No. 93-1151. United States Supreme Court. Argued October 11, 1994. Decided December 6, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT *90 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. S...
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41 F.3d 562 39 ERC 1918, 63 USLW 2415, 25 Envtl.L. Rep. 20,357 CADILLAC FAIRVIEW/CALIFORNIA, INC., Plaintiff,v.UNITED STATES OF AMERICA, Defendant-cross-claimant-Appellee,andCabot, Cabot & Forbes Interim Co., Inc., et al.,Defendants-third-party-Plaintiffs,andDOW CHEMICAL COMPANY, et al.,Defendants-third-party-Plaintiffs-Appellants,v.UNIROYAL GOODRICH TIRE CO.; Goodyear Tire & Rubb...
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42 F.3d 546 COMMONWEALTH OF the NORTHERN MARIANA ISLANDS, Plaintiff-Appellee,v.William C. CAMPBELL, II, Defendant-Appellant. No. 93-16669. United States Court of Appeals,Ninth Circuit. Submitted Oct. 31, 1994*.Decided Dec. 6, 1994. William C. Campbell, II, in pro per. Charles R. Rotbart, Asst. Atty. Gen., Saipan, CM, for plaintiff-appellee. Appeal from the Su...
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42 F.3d 1206 RESOLUTION TRUST CORPORATION, as Receiver forConcord-Liberty Savings and Loan Association, aFederal Savings and Loan Association,Plaintiff-Appellee,v.BVS DEVELOPMENT, INC., a California Corporation, Defendant,andWolfgang W. Wagner; and Charlotte Wagner, Defendants-Appellants.RESOLUTION TRUST CORPORATION, as Receiver forConcord-Liberty Savings and Loan Association, aFederal Saving...
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8 Cal.4th 992 (1994) 884 P.2d 142 35 Cal. Rptr.2d 685 DARLENE FLOWERS, Plaintiff and Appellant, v. TORRANCE MEMORIAL HOSPITAL MEDICAL CENTER et al., Defendants and Respondents. Docket No. S033331. Supreme Court of California. December 5, 1994. *995 COUNSEL Gittler & Wexler, Gittler, Wexler & Bradford, Harlan L. Bransky, Robert M. Moss and Ronald P. Kaplan for Plaintiff and Appellant. Robe...
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Appellant Roger Haggard challenges the criminal sentence imposed upon him by the United States District Court for the Northern District of California. For the reasons that follow, we affirm. I. In 1988, eight-year-old Michaela Garecht was abducted near her home in Hayward, California. She has not been seen since. A few years after the kidnapping, appellant Haggard contacted the Federal Bureau...
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*929Opinion The trial court terminated the parental rights of appellant Candy M. and freed minor siblings Barbara and Shannon P. for adoption. Candy appeals,1 contending that her due process rights were violated when the trial court (1) terminated reunification services on the same day that jurisdiction was found on the subsequent petitions; (2) based its decision to terminate reunification servi...
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Opinion This case illustrates that there are limits to the “good faith exception” to the exclusionary rule announced by the United States Supreme Court in United States v. Leon (1984) 468 U.S. 897 [82 L.Ed.2d 677, 104 S.Ct. 3405]). Paraphrasing Mr. Justice White, the name “Leon” is not a mere talisman in whose presence the exclusionary rule inexorably fades away and ...
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*911 Opinion The critical question presented on this appeal is whether the defendant city could have reduced the risk of injury to the plaintiffs by altering the physical characteristics of a street the city owns. Because the plaintiffs have not suggested any such alteration, we affirm the summary judgment entered in favor of the city. Factual Background The circumstanc...
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Opinion On June 22, 1990, Jesus Palafox 1 Huerto pleaded guilty to possession of cocaine for sale and was placed on probation. On October 10, under the name of Miguel Morales Perez, he was found to have violated that probation by failing to report. On September 30, 1993, he was found again to have violated probation, this time by selling cocaine. The case reaches us because Per...
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The Government appeals from the order granting Kevin Poulsen’s motion to suppress computer tapes turned over to the pohce after they were seized by the manager of the Menlo-Atherton Storage Facihty (“Menlo”) because Poulsen failed to pay rent when due on a storage locker. Poulsen filed a motion to suppress. The Government requested dismissal of the motion on the ground, inter alia, t...
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William Wilcox instituted a section 1983 action against the City of Reno (City) and three of its police officers after an officer twice punched him in the face in the course of an arrest. The jury found that the City of Reno had a policy that resulted in the use of excessive force and that the policy proximately caused Wilcox’s injuries. It awarded *552 him one dollar in damages. The District C...
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Opinion This case involves an interpretation of section 5402 of the Labor Code. Section 5401 of the Labor Code provides that an injured *1427 employee who seeks workers’ compensation benefits shall file with the employer a completed claim form advising the employer of the employee’s name and address, Social Security number, time of the injury and address where the injury occurred, the nature ...
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42 F.3d 1244 COEUR D'ALENE TRIBE OF IDAHO, in its own right and as thebeneficially interested party subject to the trusteeship ofthe United States of America; Ernest L. Stensgar; LawrenceAripa; Margaret Jose; Domnick Curley; Al Garrick; NormaPeone; Henry Sijohn, individually, in their officialcapacity and on behalf of all enrolled members of the CoeurD'Alene Tribe of Idaho, Plaintiffs-A...
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42 F.3d 1541 63 USLW 2380, Fed. Sec. L. Rep. P 98,475,30 Fed.R.Serv.3d 1416 In re GLENFED, INC. SECURITIES LITIGATION.John Paul DECKER, Arnold Cohen, Gary Haskins, LarrySchwartz, Gary F. Young, Elbridge Ruhl Graef, Trustee u/w ofCharlotte R. Graef on behalf of themselves and all otherssimilarly situated, Plaintiffs-Appellants,v.GLENFED, INC., Norman M. Coulson, Raymond D. Edwards, DannV. ...
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Opinion —After investigating a treating physician’s report that Susan T.1 was a schizophrenic and a danger to herself and to others, the Lake County Mental Health Department (department) dispatched a crisis services worker to Susan T.’s home. She was living amidst bagged human and animal waste, without water, heat or electricity. She was taken to a psychiatric hospital. Several hours later, anoth...
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Opinion Petitioner Donald Jackson seeks a writ to require respondent court to overrule a demurrer to a cause of action under the Unruh Civil Rights Act (Civ. Code, § 51). 1 Procedural History - Facts On April 4, 1994, petitioner filed a complaint against Home Savings of America and Maria G. Delucchi-Kahale, an employee of Home Savings. The complaint alleges in relevant part as follows: Pe...
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Opinion Plaintiff, James Dennis Ellenberger, D.D.S., appeals from a judgment entered against him and in favor of defendant Jennie Espinosa, (hereinafter defendant) based on the trial court’s action of sustaining her demurrer to plaintiffs second amended complaint without leave to amend. *947 Procedural Background On April 10, 1992, plaintiff filed his second amended complaint against defe...
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513 U.S. 123 (1994) NEBRASKA DEPARTMENT OF REVENUE v. LOEWENSTEIN No. 93-823. United States Supreme Court. Argued October 11, 1994. Decided December 12, 1994. CERTIORARI TO THE SUPREME COURT OF NEBRASKA *125 Thomas, J., delivered the opinion for a unanimous Court. L. Jay Bartel, Assistant Attorney General of Nebraska, argued the cause for petitioner. With him on the briefs was Don Stenberg, Attor...
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43 F.3d 424 148 L.R.R.M. (BNA) 2035, 129 Lab.Cas. P 11,244,18 Employee Benefits Cas. 2567 Clyde ALLEN; Jack Allen; Michael Bach; Ronnie Berry;Russell Bryarly; et al., Plaintiffs-Appellants,v.UNITED FOOD & COMMERCIAL WORKERS INTERNATIONAL UNION,AFL-CIO, CLC; Local No. 554 United Food andCommercial Workers; Sara Lee Corp.,Defendants-Appellees. No. 93-35807. United States C...
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George Nikaido brought this action against The Centennial Life Insurance Company (“Centennial”), Hughes Aircraft Company Income Insurance Plan (“Plan”), and Hughes Aircraft Company (“Hughes”) to recover disability benefits allegedly due under the Plan. The district court granted Centennial’s motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), holding that the action is barred by the statute of...
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Manuel Raya-Ledesma (Raya-Ledesma) seeks review of the final order of the Board of Immigration Appeals (BIA), which found him statutorily ineligible for relief from deportation under § 212(c) of the Immigration and Nationality Act (Act), 8 U.S.C. 1182(c) (1988 & Supp. V 1993). We have jurisdiction pursuant to 8 U.S.C. § 1105a, and now deny Raya-Ledesma’s petition. I. Raya-Ledesma is a...
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Universal Painting and Sandblasting Corporation (“UPS”), through its general contractor Southwest Marine, Inc. (“SWM”) 1 seeks review of the District Court decision dismissing UPS’s application for attorneys’ fees and costs under the Equal Access to Justice Act, 5 U.S.C. § 504 (“EAJA”). The court below found that the EAJA does not waive sovereign immunity as to a subcontractor who su...
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OVERVIEW Roby. Taylor Chapel, Jr. (Chapel) appeals his jury conviction for armed robbery of the First Federal Savings and Loan Association of San Bernardino (Bank). He challenges his conviction on the grounds that the Government failed to provide sufficient evidence that the Bank was federally insured. He also contends the district court erred by taking judicial notice of the Bank’s insured sta...
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Opinion This is an action for declaratory relief brought by an insured, American Cyanamid Company, to determine the duty of its various insurers to defend and indemnify American Cyanamid in an underlying lawsuit for anticompetitive conduct. The action was brought against three primary insurers and numerous excess insurers, all of whose policies were in effect from 1966 to 1986. The t...
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Opinion Appellant Jimmie Garrett was convicted by a jury of one count of threatening another person with immediate great bodily injury (Pen. Code, § 422 1 ). The jury was unable to reach a verdict on the charge that appellant was an ex-felon in possession of a firearm, and a mistrial was granted as to that count. Additionally, appellant admitted a prior felony conviction for which he served a...
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Opinion Kelli Jeanette Head appeals after pleading guilty to felony and misdemeanor possession of a narcotic (Health & Saf. Code, § 11350, subds. (a) and (b)). Granted probation with imposition of sentence suspended, she challenges denials of her motions to suppress evidence seized under warrant on grounds that a delay in filing a return to the warrant violated her Fourth Amendment rights. We uph...
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Janicki Logging Company, Inc. appeals from the district court’s dismissal of its action against two officials of the United States Forest Service, Bruce Mateer and Dale Robertson. Janicki sued them in their individual, not official, capacities. It claimed that its constitutional rights were violated when a portion of its logging contract with the USFS was cancelled after the discovery of a Nort...
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Opinion LUCAS, C. J. —We granted review to decide whether the County of San Diego may constitutionally amend its charter to provide for the creation of a citizens board to review public complaints about the county sheriff and probation departments, and vest that board with power to subpoena witnesses and documents. We conclude the County of San Diego has authority under California Constitution, ar...
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8 Cal.4th 1041 (1994) 884 P.2d 1022 36 Cal. Rptr.2d 74 In re PEDRO T., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. PEDRO T., Defendant and Appellant. Docket No. S032514. Supreme Court of California. December 12, 1994. *1043 COUNSEL Howard C. Cohen, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, G...
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8 Cal. 4th 1030 (1994) 884 P.2d 1015 36 Cal. Rptr. 2d 67 THE PEOPLE, Plaintiff and Appellant, v. FRANK JOE LAGUNAS, Defendant and Respondent. Docket No. S032503. Supreme Court of California. December 12, 1994. *1032 COUNSEL Ira Reiner and Gil Garcetti, District Attorneys, Maurice H. Oppenheim, Harry B. Sondheim, Natasha Cooper and Patrick D. Moran, Deputy District Attorneys, for Plaintiff and App...
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Opinion Here we face two primary questions: (1) the remedy available to subsequent purchasers when a prior land sale transaction to which they were not parties violates the Subdivided Lands Act (Bus. & Prod. Code, § 11000 et seq.), and (2) the subsequent purchasers’ rights pursuant to a release clause contained in a blanket deed of trust which the , original parties did not perform. ...
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44 F.3d 740 63 USLW 2385 NATIONAL BROILER COUNCIL; American Meat Institute;Arkansas Poultry Federation, Inc., Plaintiffs-Appellees,v.Henry J. VOSS, Director, California Department of Food andAgriculture, Defendant-Appellant.NATIONAL BROILER COUNCIL; American Meat Institute;Arkansas Poultry Federation, Inc., Plaintiffs-Appellees,v.Henry J. VOSS, Director, California Department of Food and...
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This case involves a negligence action by an injured longshore worker against the owner of the vessel. The district court granted summary judgment for the vessel. We reverse. BACKGROUND On July 6, 1991, Stevedoring Services of America assigned longshore worker Denise Thomas to assist with the discharging and loading of cargo from the vessel “Imperial”. At approximately 2:30 p.m., Thomas and...
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Opinion It has been said, and it is doubtless true, that the “. . . courtroom is a temple of justice.” (Featherstone v. United States (5th Cir. 1974) 491 F.2d 96, 97, fn. 1.) A prosecutor may not use the courtroom as a place to intentionally and surreptitiously listen to, i.e., eavesdrop upon, a defendant’s conversation with his attorney. Indeed, eavesdropping on an ...
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Opinion William Rosso appeals from the judgment entered following denial of his suppression motion (Pen. Code, § 1538.5) and *1003 his negotiated guilty plea to possessing more than 10 kilograms of cocaine for sale. (Health & Saf. Code, §§ 11351, 11370.4, subd. (a)(3).) In the published portion of this opinion, we reject the People’s argument that Rosso waived his appellate r...
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Opinion Appellants ask that the state pay for driver training for public high school students. They claim moneys from the Drivers Training Penalty Assessment Fund (DTPAF) should be used for this purpose. (Pen. Code, § 1464; Ed. Code, § 41304.) After the trial court denied their petition for a writ of mandamus and preliminary injunction, appellants filed this appeal. 1 On appe...
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This case involves two issues, the retroactive availability of punitive damages and attorneys’ fees. Both are questions of Washington law, but Washington state law applies federal law. I. FACTS Mr. McGinnis worked as a manager for Kentucky Fried Chicken. He developed cancer and required surgery. He returned to work shortly after his surgery, but required continuing treatment. For ...
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Rarogal petitioned for relief from deportation. We remand. The Board of Immigration Appeals apparently did not consider rehabilitation, even though the Immigration and Naturalization Service stipulated that relief from deportation was appropriate for that reason. I. FACTS Rarogal came from the Philippines to Hawaii in 1980. He was admitted as á lawful permanent resident. His wife could not ge...
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OPINION C.F. Brookside, Ltd. (“Brookside”) appeals an order of the bankruptcy court reaffirming its prior grant of summary judgment in favor of Skyview Memorial Lawn Cemetery (“Sky-view”). We affirm in part and reverse and remand in part. I. Background In 1979, Brookside sold an apartment project located in Redondo Beach, California (the “Project”), to Affordable Housing Corpora...
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OPINION I A car dealer perfected its security interest in a motor vehicle twelve days after the security interest became effective between the parties. The bankruptcy trustee brought an action to avoid the security interest pursuant to Bankruptcy Code (“Code”) Section 547. Oregon law contains a twenty day grace period for perfection of such interests. The bankruptcy court ruled that the Orego...
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Opinion The County of San Diego (County) appeals an order of the superior court in its action for reimbursement of aid to families with dependent children (AFDC) moneys paid on behalf of the minor child of respondent Guy C. (Guy) for out-of-home placements pursuant to a judgment of dependency. (Welf. & Inst. Code, §§ 300, 11350.) In making its order for child support, the trial court revi...
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Opinion Defendant David Scott Curtis (defendant) had an affair with a married woman, Abigail Camacho Medina (Abby). 1 This brought him into conflict—sometimes violent conflict—with Abby’s husband, brother, and other members of her family. Defendant’s relationship with Abby herself was not free from conflict. They broke up and got back together many times. Abby gave birth to a child, Nicole....
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Opinion Ricky Sandoval (Sandoval) was convicted by a jury of 11 armed robberies, 1 attempted robbery, and attempted murder, with Sandoval’s having personally used a firearm on all counts and having inflicted great bodily injury on the victim of the attempted robbery and murder also found true by the jury. In separate proceedings, the court found true allegations *1293 Sandoval had suffered tw...
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43 F.3d 428 The FORT BELKNAP INDIAN COMMUNITY OF the FORT BELKNAP INDIANRESERVATION, Plaintiff-Appellee,v.Joseph P. MAZUREK, as Attorney General for the State ofMontana; Donald A. Ranstrom, as County Attorneyfor Blaine County, Montana, Defendants-Appellants. No. 93-36086. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1994.Decided Dec. 16, 1994. ...
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42 F.3d 1278 SHOSHONE-BANNOCK TRIBES, Plaintiff-Appellant,v.FISH & GAME COMMISSION, IDAHO, sued as: Idaho Fish & GameCommission; Jerry Conley, individually and in his officialcapacity as Director of Idaho Fish and Game; RichardMeiers; Norm Guth; Louis Racine; Wesley Rose, et al.,Defendants-Appellees. No. 94-35280. United States Court of Appeals,Ninth Circuit. Argued a...
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ORDER The opinion filed February 10, 1994 and published at 16 F.3d 348 is withdrawn and the attached per curiam opinion is filed in its place. With the opinion withdrawn, the petitions for rehearing with suggestions for rehearing en banc are moot. The parties may file a renewal of the petition for rehearing with suggestion for rehearing en banc upon the filing of a new decision by the court. ...
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OPINION The former counsel for the Chapter 12 1 debtors and debtors in possession filed his first and final fee application following his withdrawal as the debtors’ counsel. The debtors objected to the fee application. Following a hearing on the fee application and objection, the bankruptcy court entered an order which awarded fees and costs to the debtors’ former counsel. The debtors appea...
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OPINION The debtor objected to the Internal Revenue Service (“IRS”) claim on the grounds that the statute of limitations had expired and that consents executed between the tax matter partner and the IRS were invalid. In addition, the debtor attempted to set aside a closing agreement based on an alleged misrepresentation by the IRS. The bankruptcy court overruled the objection to the IRS claim. T...
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8 Cal. 4th 1220 (1994) 885 P.2d 877 36 Cal. Rptr. 2d 464 FORD & VLAHOS, Plaintiff, Cross-defendant and Appellant, v. ITT COMMERCIAL FINANCE CORP., Defendant, Cross-complainant and Appellant. Docket No. S035748. Supreme Court of California. December 15, 1994. *1223 COUNSEL Kline & Joseph, Stephen L. Joseph, Richard Collier Sears, Nossaman, Guthner, Knox & Elliott, William T. Bagley and...
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Opinion Plaintiffs Fireman’s Fund Insurance Company, General Star Indemnity Company, and North Star Reinsurance Corporation (together Insurers) appeal a judgment of dismissal entered after the superior court sustained without leave to amend the demurrer of defendants McDonald, Hecht & Solberg et al. (together Law Firm) 1 to Insurers’ cause of action in subrogation for legal mal...
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Opinion Plaintiffs appeal from a summary judgment entered against them in their action for damages for personal injuries and loss of consortium. We reverse. In doing so, we hold that (1) the consumption of alcoholic beverages is not an activity which is within the range of activities involved in the sport of downhill snow skiing; (2) to the extent the consumption of alcohol increases the ...
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INTRODUCTION Six companies that lease rail cars to railroads and shippers brought suit under § 306 of the Railroad Revitalization and Regulatory Reform Act of 1976, 90 Stat. 54, recodified as *1288 amended at 49 U.S.C. § 11503, 1 to enjoin California’s collection of ad valorem property taxes. The California State Board of Equalization appeals the district court’s or...
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C. Marshall, Warden of the California State Department of Corrections, and the Attorney General of the State of California appeal the district court’s issuance of the 28 U.S.C. § 2254 habeas corpus writ for California state prisoner John Gregory Lee, who was convicted in state court of conspiracy to commit murder in 1982. The district court, in Lee v. Marshall, 843 F.Supp. 608 (C.D.Cal.1993),...
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Tracer Research Corporation appeals the district court’s order dissolving a preliminary injunction that had prevented National Environmental Service Company, Lab One Analytical, Eddy Paterson and Albert McCut-chan from pursuing their business in tank and pipeline leak detection using chemical tracers. We have jurisdiction to review the district court’s order dissolving the preliminary injunctio...
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Opinion Plaintiff Lincoln National Life Insurance Company (LNL) filed suit against defendant State Board of Equalization of the State of California (Board) seeking a refund of gross premium taxes assessed and collected pursuant to article XIII, section 28, subdivision (c) of the California Constitution. Southern California Gas Company (SCG) was an intervener in the suit. The trial court found L...
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Ana Cristina Delmundo was found to have fraudulently entered the United States and was ordered by an immigration judge to be involuntarily deported. Delmundo appealed the decision to the Board of Immigration Appeals (“BIA”) and moved to reopen her deportation proceedings to consider her application for waiver of deportation under § 212® of the Immigration and Nationality Act. 1 The B...
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42 F.3d 1299 66 Fair Empl.Prac.Cas. (BNA) 933,65 Empl. Prac. Dec. P 43,365, 63 USLW 2404 The PRUDENTIAL INSURANCE CO. OF AMERICA, a New JerseyCorporation, Petitioner-Appellee,v.Justine LAI; Elvira Viernes, Respondents-Appellants. No. 92-55902. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 10, 1993.Decided Dec. 20, 1994. John S. West and Mic...
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Opinion When coterminous landowners are uncertain as to the true location of their common boundary, they may establish that boundary by agreement, pursuant to a legal theory commonly referred to as the “agreed-boundary” doctrine. This case presents the question whether a court should *50apply that doctrine to resolve a boundary dispute where available legal records provide a reasonable basis for ...
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9 Cal. 4th 27 (1994) 884 P.2d 1048 36 Cal. Rptr. 2d 100 LA JOLLA BEACH AND TENNIS CLUB, INC., et al., Plaintiffs and Appellants, v. INDUSTRIAL INDEMNITY COMPANY, Defendant and Respondent. Docket No. S036170. Supreme Court of California. December 19, 1994. *31 COUNSEL H. Paul Kondrick, Seltzer, Caplan, Wilkins & McMahon and Michael H. Riney for Plaintiffs and Appellants. Craig R. Berne, James ...
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9 Cal.4th 1 (1994) 884 P.2d 1369 36 Cal. Rptr.2d 317 THE PEOPLE, Plaintiff and Respondent, v. JESSIE RAYFORD, Defendant and Appellant. Docket No. S035821. Supreme Court of California. December 19, 1994. *5 COUNSEL Terrence Verson Scott, under appointment by the Supreme Court, and Andrew E. Rubin for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant A...
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Opinion Appellant Suzanne Carlton, successor in interest to plaintiff Mark A. Carlton, deceased (Carlton), appeals a judgment following a grant of summary judgment in favor of defendant and respondent St. Paul Mercury Insurance Company (St. Paul or the insurer) in a bad faith action alleging unreasonable delay in paying a claim. The essential issue presented is whether the trial cour...
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Opinion Appellant Interinsurance Exchange of the Automobile Club of Southern California filed a complaint for subrogation recovery against Matthew Joseph Collins. 1 Appellant submitted a request to enter default, which was rejected by the clerk of the court. The clerk informed counsel for appellant that the default could not be entered because the declaration of Mr. Collins’s n...
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Opinion Former section 621 of the Evidence Code 1 provided that “the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage” absent rebuttal under certain specified circumstances, inapplicable here, within two years of the child’s birth. The sole issue before us is whether the trial court erred in applying this presu...
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43 F.3d 443 41 Fed. R. Evid. Serv. 86 The MONOTYPE CORPORATION PLC, a corporation organized andexisting under the laws of England,Plaintiff-Appellee, Cross-Appellant,v.INTERNATIONAL TYPEFACE CORPORATION, organized and existingunder the laws of New York, Defendant-Appellant,Cross-Appellee.INTERNATIONAL TYPEFACE CORPORATION, Third-Party Plaintiff,v.MONOTYPE, INC., an Illinois corporation; a...
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Thomas and William Merino pled guilty to Unauthorized Flight to Avoid Prosecution (“UFAP”), in violation of 18 U.S.C. § 1073. They both challenge their sentences. We have jurisdiction over these timely appeals pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold that the Sentencing Guidelines apply to the Merinos’ crimes, and that the district court properly applied the Sentencing Guidel...
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43 F.3d 457 39 ERC 1993, 25 Envtl. L. Rep. 20,371 WESTLANDS WATER DISTRICT; San Benito County Water District;San Luis Water District; Panoche Water District,et al., Plaintiffs-Appellees,v.NATURAL RESOURCES DEFENSE COUNCIL; United Anglers ofCalifornia; Save San Francisco Bay Association; CaliforniaWaterfowl Association; Sierra Club; Bay Institute of SanFrancisco; Environmental Defen...
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Opinion Gregory Williams appeals his conviction by jury verdict of first degree murder with special circumstances of robbery (Pen. Code, *1760 §§ 187, 190.2, subd. (a)(17)(i)) 1 and sale of cocaine base. (Health & Saf. Code, § 11352.) Appellant asserts instructional and sentencing error, and the erroneous denial of a new trial on the basis of newly discovered evide...
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Opinion Coastal Construction Company (hereafter seller) appeals from a declaratory relief judgment enjoining it from foreclosing on a purchase *1714 money deed of trust. The trial court ruled that Probate Code section 9391 barred enforcement of the trust deed because seller failed to file a creditor’s claim with the debtor’s estate waiving recourse against other property in the estate. 1 Se...
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Opinion An attorney negligently fails to diligently prosecute an action. Code of Civil Procedure section 473 1 provides that upon a proper motion the court shall vacate a default judgment or dismissal entered because of an attorney’s mistake, inadvertence, surprise, or neglect. Does that mean that a trial court may not dismiss an action for failure of the attorney to diligently...
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Opinion An attorney wishes to file a complaint in the Ventura Municipal Court. The clerk will not accept the complaint for filing unless the attorney first submits a completed “case information sheet” required by a local court rule. We are called upon to answer a question, universal to the legal profession, “Can they do that?” Here we offer our answer to this weighty inquiry — “Sure.” The...
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Opinion During a drought condition, a city supplies its citizens with water it draws from the ground. The groundwater pumping causes subsidence resulting in damage to buildings. Here we hold the city is liable in inverse condemnation to the owner of the buildings. We affirm the judgment of the trial court that appellant, the City of San Luis Obispo (the City), is liable in inver...
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Opinion Winfred Bell appeals from the order extending his commitment to the Department of Mental Health after a jury found that he continued to be a mentally disordered offender (MDO). (Pen. Code, §§ 2962, 2966, subd. (c).) He contends: “I. The trial court erred in failing to correctly instruct on the time parameter for proof of the MDO criteria and its error was prejudicial. II. The trial cour...
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Opinion A jury convicted defendant and appellant Balwinder Singh Tung of four felonies, including one count of attempted murder, and one misdemeanor. The jury also found various enhancement allegations were true. 1 Appellant was sentenced to a prison term of life plus four years. 2 Appellant raises three issues here. First, he claims his conviction for attempted murder must be reversed be...
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Opinion I. Introduction In this case we hold that a hearing on the necessity of a “support person” (Pen. Code, § 868.5) for a six-year-old victim, while testifying in a prosecution for child molestation, was waived by failure to request it. II. Background Lord molested six-year-old Myisha at a motel in Hayward on December 20,1992. Myisha was staying in room 154 with her mother, Marla, and...
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Opinion In a joint trial with codefendant Mark Regó, a jury convicted defendant of second degree burglary (Pen. Code, §§ 459, 460) and failure to appear (Pen. Code, § 1320, subd. (b)). Defendant was sentenced to state prison for the two-year middle term for burglary, plus eight months consecutive for failure to appear. On appeal, defendant contends that an instruction to the jury in terms of ...
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Opinion Appellant Gloria B., mother of the minor children and objector in the court below, appeals from the trial court order granting the petition filed by petitioners Jose and Jennie R. (respondents herein) seeking to be appointed guardians of the minor children, Diana (also referred to in the record and in this opinion as Deana) and Brenda, born in 1980 and 1982, respectively. The sole...
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Opinion After Brenda B.’s parental rights to her daughter Krystle D. were terminated, she and her former husband, Krystle’s former *1786stepfather, John U., separately appeal. Brenda asserts that the proceedings were defective for lack of proper notice to her tribe under the Indian Child Welfare Act, 25 United States Code section 1901 et seq. (hereafter, the Act). John contends that the court err...
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43 F.3d 1251 129 Lab.Cas. P 33,188 Ubaldo BARAJAS, Tito Peneda Davila, Alberto Media, and RamonMurillo, individually and on behalf of otherssimilarly situated, Plaintiffs-Appellants,v.Elias BERMUDEZ and Dora Bermudez; Natalia Medina; JesusJose Bermudez, Marcos J. Flores, husband,Enriqueta Bermudez Flores, wife andAlbert S. Medina; Centro deProgreso,Defendants-Appellees. No. 92-1703...
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9 Cal.4th 69 (1994) 885 P.2d 83 36 Cal. Rptr.2d 333 THE PEOPLE, Plaintiff and Respondent, v. TONY JUAN CALDERON, Defendant and Appellant. Docket No. S030127. Supreme Court of California. December 22, 1994. *71 COUNSEL Thomas M. Bohl, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol ...
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9 Cal.4th 83 (1994) 885 P.2d 887 36 Cal. Rptr.2d 474 THE PEOPLE, Plaintiff and Respondent, v. STEVEN EDWARD CRITTENDEN, Defendant and Appellant. Docket No. S010685. Supreme Court of California. December 22, 1994. *103 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Albert W. Brodie and Ellen J. Eggers, Deputy State Public Defenders, for Defendant and Appell...
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*1012 Opinion We consider the statute of limitations in an action alleging diesel fuel pollution caused by defects in the installation of an underground storage tank. The issue is whether a property owner who might otherwise be entitled to indemnification for abating a “continuing nuisance” is barred by the statute of limitations applicable to latent construction defects. Code of...
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Opinion Introduction These consolidated appeals contest rulings made by the trial court at a hearing to vacate two bail forfeitures. We first reject the contention made by *16 the two sureties (National and Ranger) that the trial court lacked jurisdiction to order the bail forfeitures in the first instance. We affirm the trial court’s ruling denying National’s motion to ...
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OPINION This appeal concerns the timely issue of the length of the statute of limitations provision applicable to a trustee that is appointed pursuant to § 546 of the Bankruptcy Code. Some courts have found Softwaire Centre and San Joaquin in disagreement on this issue. The debtor in possession operated the estate for seven years at which time the case was converted ...
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OPINION I The bankruptcy court allowed a law firm with a prepetition secured claim against the debtor’s property to represent that debtor as general counsel in the bankruptcy case. We hold that a professional with a claim secured by the debtor’s property should be viewed as not disinterested as a matter of law. We REVERSE. II FACTS CIC Investment Corporation (“Deb...
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OPINION OVERVIEW The Franchise Tax Board of the State of California (the FTB) continued to receive money from a wage garnishment of the debtors after receiving notice of the debtors’ Chapter 13 bankruptcy and instigated other proceedings against the debtors for a period of some five years. On motion by the debtors, the court assessed against the FTB the debtors’ attorney’s fees a...
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OPINION Jose Antonio Santiago (“debtor”) is the debtor in the above-captioned chapter 11 case. Floyd Irons (“Irons”) filed an adversary proceeding against the debtor and several other parties not in bankruptcy. The bankruptcy court dismissed the complaint as untimely filed. From this order, the plaintiff appeals. For the reasons stated herein, we reverse the decision of the bankruptcy court. ...
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Opinion The City and County of San Francisco (City) seeks a writ of mandate to compel respondent superior court to grant its motion for summary judgment. City is defendant in a personal injury action brought by real party in interest Bridget Colbert, who was stabbed while riding on a City-operated bus and now sues City for failing to prevent the incident. City contends it is not liable to real ...
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Opinion In this appeal we are asked to decide whether the City of Fresno’s municipal ordinance which restricts the door-to-door distribution of certain categories of written materials is constitutional. We are concerned with two parts of the ordinance. First, the ordinance prohibits-door-to-door distribution of advertisements and unauthorized newspapers when the owner or occupant of a residence...
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In this appeal, we address the effect of a claimant’s failure to pursue administrative remedies before the expiration of the claims bar date specified in the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (“FIRREA”). We have jurisdiction over this appeal under 28 U.S.C. § 1291. Because we find that the district court properly dismissed this case for lack of subject matter ...
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Taxpayers, A. Sidney Malbon and Helene Malbon, appeal the district court’s denial of a refund for the 1987 tax year. The taxpayers contend that they are entitled to a refund for individual income tax paid on Sidney Mal-bon’s lump-sum credit payment received pursuant to the Civil Service Retirement System (“CSRS”). The taxpayers also contend that the “deemed deposit” received as part of the lump-s...
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44 F.3d 758 25 Envtl. L. Rep. 20,531 UNITED STATES of America, Plaintiff-Appellant,andKlamath Allottees Water Users Association; Klamath Tribe,Plaintiffs-Intervenors,v.STATE OF OREGON, Water Resources Department, and William H.Young, Director, Defendants-Appellees.UNITED STATES of America, Plaintiff,andKlamath Allottees Water Users Association, Plaintiff-Intervenor,andKlamath Tribe, Plain...
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OVERVIEW The debtor and others formed a “Massachusetts Trust” which acted as surety for certain investment loans. The surety failed to pay on claims after the loans had defaulted. When the debtor filed his chapter 7 petition, the creditors brought an action under 11 U.S.C. § 523 to bar discharge of their claims. After trial, the bankruptcy court adjudged the debts nondischargeable. We AFFI...
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OPINION Counsel for a Chapter 11 2 debtor and debtor in possession filed its first and final fee application following successful confirmation of the debtor’s plan of reorganization. The bankruptcy court entered an order which awarded fees in an amount less than requested by counsel and costs in full. Counsel filed a motion for clarification of the bankruptcy court’s order...
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OPINION James Kaczmarczik filed an adversary proceeding against Jerry and Geraldine Van Meter, the debtors. Kaczmarczik mailed the complaint and summons to the Van Meters, and concurrently filed the same. As a result, • the Van Meters received an unfiled complaint and an unissued summons. The Van Meters were never served with a filed complaint or an issued summons. Recognizing that th...
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Opinion August G. Smith (Smith) worked as a pipe fitter for 30 years, his work often exposing him to asbestos dust. Smith retired with good health in 1971 at the age of 67. Twenty years later, in 1991, Smith became ill and was diagnosed with the respiratory afflictions of asbestosis and asbestos-related pleural disease. Smith and his wife, Marie, brought this action for damages again...
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Opinion In this insurance bad faith suit, defendant Allstate Insurance Company appeals the judgment entered following a jury’s verdict *64 in favor of plaintiff Gary Lehto. Prior to the instant action, Allstate’s insureds, Israel and Raul Carbajal, entered into a stipulated judgment in the amount of $2.6 million in favor of plaintiff, in exchange for a covenant not to execute...
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43 F.3d 472 UNITED STATES of America, Plaintiff-Appellant,v.Ramon EDMOND, aka Looney; Calvin Springer, aka Cat, akaCardell Starr; Alondras Saunders, aka C-Nut, akaLon; and Joseph Dion Hill, aka J.D.,Defendants-Appellees. No. 93-10543. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 14, 1994.Decided Dec. 29, 1994. Joseph Douglas Wilson, U.S. Dep...
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9 Cal.4th 161 (1994) 885 P.2d 934 36 Cal. Rptr.2d 521 DOMAR ELECTRIC, INC., Plaintiff and Appellant, v. CITY OF LOS ANGELES, Defendant and Respondent; BAILEY CONTROLS COMPANY, Intervener and Respondent. Docket No. S036526. Supreme Court of California. December 28, 1994. *164 COUNSEL Kamine, Steiner & Ungerer, Bernard S. Kamine and Phyllis M. Ungerer for Plaintiff and Appellant. James K. Hahn,...
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Opinion We granted review in this legal malpractice action to consider the scope of an attorney’s duty to give advice when severing a relationship with a new or prospective client after learning that the representation—involving the filing of a lawsuit—would conflict irreconcilably with the duty of loyalty owed to an existing client, the target of the contemplated litigation. We conclude that the...
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Opinion This is a professional negligence action brought against an attorney, defendant Edward I. Niles, based on Niles’s alleged failure to exercise reasonable care in preparation of loan documents for plaintiff ITT Small Business Finance Corporation (hereafter ITT). Although Niles prevailed on summary judgment after the trial court concluded that the action was time barred, ITT persuaded the Co...
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9 Cal. 4th 263 (1994) 885 P.2d 976 36 Cal. Rptr. 2d 563 JAMES P. LENNANE et al., Plaintiffs and Respondents, v. FRANCHISE TAX BOARD, Defendant and Appellant. Docket No. S034345. Supreme Court of California. December 28, 1994. *265 COUNSEL Daniel E. Lungren, Attorney General, Timothy G. Laddish, Assistant Attorney General, and Richard F. Finn, Deputy Attorney General, for Defendant and Appellant. ...
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Opinion When a person takes “flight” at the sight of a police officer, may the officer temporarily detain the person for questioning? Because under the Fourth Amendment the lawfulness of a temporary detention depends not on any one circumstance viewed in isolation, but upon the totality of the circumstances known to the detaining officer, we decline to establish a “bright-line” rule that flight w...
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*135 Opinion Introduction Plaintiff and appellant Katheryn Kidd (Kidd) appeals from the order of dismissal of her action for legal malpractice against defendants and respondents Steven Kopald (Kopald) and the law firm Kopald & Mark (collectively Kopald) for failure to bring the case to trial within three years. Kidd contends reversal is in order because the trial court ...
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*171 Opinion This case tenders the question whether a county is precluded from the regulation of groundwater because state law has preempted the field. We will conclude that state law, while regulating aspects of groundwater, does not wholly preclude county regulation. The defendant County of Tehama (Tehama) appeals from a judgment declaring invalid an ordinance by which it ...
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Opinion Eastern Municipal Water District (District), plaintiff below, appeals from a trial court judgment entered after the court refused to enjoin enforcement of a local ordinance enacted by defendant City of Moreno Valley (City) which placed on the District the obligation to collect from its customers and remit to the City a 6 percent utility user’s tax on the services provided by the Distric...
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