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All Reporters → daily-journal-dar → Volume 2001

Opinions in daily-journal-dar Volume 2001

Opinion Plaintiff Tosco Corporation (Tosco) brought this action against numerous insurers to establish insurance coverage for environmental *1018cleanup costs. The appeals now before us arise from summary judgments entered in favor of three insurers on the authority of A. C. Label Co. v. Transamerica Ins. Co. (1996) 48 Cal.App.4th 1188 [56 Cal.Rptr.2d 207] (A. C. Label), which held that a compre...
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102 Cal. Rptr. 2d 668 (2000) 85 Cal. App. 4th 1024 Jose SILVA et al., Plaintiffs and Appellants, v. UNION PACIFIC RAILROAD COMPANY, Defendant and Respondent. No. A088552. Court of Appeal, First District, Division Four. December 28, 2000. *669 Perry S. Dobson, Hayward, Counsel for Appellants. Barry & Randolph, William C. Barry, Thomas A. Cregger, Michelle J. Drees, Sacramento, Counsel for Resp...
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Opinion In this action for a refund of franchise taxes, The Reader’s Digest Association, Inc. (RDA), appeals from a judgment in favor of the California tax authorities. Federal law exempts an out-of-state company from income-based state taxation if that company merely sells or *1242solicits sales through an in-state independent contractor.1 The pivotal issue here is whether a wholly owned subsidi...
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Opinion Introduction Appellant Pierre Askmo appeals from an order granting respondent Hakima Askmo’s motion for spousal support and attorney’s fees. The order was entered while a prior appeal by appellant was pending. In that appeal, appellant challenged an order granting respondent’s motion for relief from a default judgment. We remanded the case with directions to reconsider the order. {In re Ma...
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102 Cal. Rptr. 2d 673 (2000) 85 Cal. App. 4th 1042 WESTREC MARINA MANAGEMENT, INC., et al., Plaintiffs and Appellants, v. JARDINE INSURANCE BROKERS ORANGE COUNTY, INC., et al., Defendants and Appellants. No. G023980. Court of Appeal, Fourth District, Division Three. December 28, 2000. *674 Troop Steuber Pasich Reddick & Tobey, Mary K. Barnes, Lori M. Yankelevits and Kirk A. Pasich, Los Angele...
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102 Cal. Rptr. 2d 750 (2000) 85 Cal. App. 4th 1053 Dino TOMASSI et al., Plaintiffs and Respondents, v. Joseph SCARFF, as Administrator, etc., Defendant and Respondent; Reliance Insurance Company, Movant and Appellant. Giusepina Tomassi, Plaintiff and Respondent, v. Joseph Scarff, Individually and as Administrator, etc., et al., Defendants and Respondents; Reliance Insurance Company, Movant and Ap...
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The principal question before us is whether the district court erred in giving a mixed-motive rather than a pretext instruction to the jury considering plaintiffs claim of wrongful discharge and discriminatory working conditions. We conclude that in the absence of substantial evidence of conduct or statements by decisionmak-ers directly reflecting discriminatory animus, the giving of a mixed-mo...
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This appeal requires us to decide whether the Commissioner of the Social Security Administration properly denied disability benefits to a claimant for whom earnings records showed neither self-employment income nor wages for sufficient “quarters of coverage.” 1 Marion Chapman applied for disability benefits when he broke his pelvis in a tractor accident July 26, 1994. Social security records ...
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Opinion by Judge SCHROEDER; Concurrence by Judge SNEED. Plaintiffs challenge the constitutionality of an Arizona statute that criminalizes any medical “experimentation” or “investigation” involving fetal tissue from induced abortions unless necessary to perform a “routine pathological examination” or to diagnose a maternal or fetal condition that prompted the abortion. The plaintiffs include indiv...
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Plaintiffs Okanogan Highlands Alliance (OHA) and the Confederated Tribes of the Colville Reservation (Colville) challenge the adequacy of the Final Environmental Impact Statement (EIS) and Record of Decision (ROD) prepared by the United States Forest Service (Forest Service).1 Plaintiffs make three arguments: (1) The district court and the Regional Forester considered documents that were not part ...
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Opinion In Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117 [269 Cal.Rptr. 844], an appeal from a judgment entered on a class action settlement, Justice Benson, then a member of this court, began his opinion this way: “According to the parties, the appeals are about either collusion or fantasy. Appellants contend the [class action] settlements were the product of a collusive sellout between ...
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*1129 Opinion The trial court sustained a demurrer to the complaint of the Reverend John P. Conley (appellant) without leave to amend. Appellant contends that the trial court erred in finding that the complaint presented an ecclesiastical dispute not within the jurisdiction of civil authority. We conclude that judicial review of appellant’s causes of action is permissible in light of the stro...
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102 Cal. Rptr. 2d 770 (2000) 85 Cal. App. 4th 1168 FRANKLIN & FRANKLIN et al., Plaintiffs and Appellants, v. 7-ELEVEN OWNERS FOR FAIR FRANCHISING et al., Defendants and Respondents. No. A085722. Court of Appeal, First District, Division Four. December 29, 2000. *771 Anthony A. Ferrigno, Law Offices of Anthony A. Ferrigno, San Clemente, J. David Franklin, Franklin & Franklin, La Jolla, Cou...
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Opinion Gil Garcetti, District Attorney of Los Angeles County, petitions for a writ of mandate to overturn the superior court’s order sustaining a demurrer by Barry Meril Blake (Blake) to the People’s commitment petition under the Sexually Violent Predators Act (SVP Act) (Welf. & Inst. Code, § 6600 et seq.) and dismissing the commitment proceedings.1 A requisite to a commitment under the SVP Act ...
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Opinion This case presents a novel issue arising from the intersection of the Death on the High Seas Act (DOHSA), 46 United States Code appendix section 761 et seq., and the California workers’ compensation law. The question is whether DOHSA preempts an employer’s state law claim in a subrogation action to recover from a third party tortfeasor sums the employer was obligated to pay for an...
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102 Cal.Rptr.2d 684 (2000) 85 Cal.App.4th 1086 SOUTHERN CALIFORNIA EDISON COMPANY, Petitioner, v. PUBLIC UTILITIES COMMISSION, Respondent. No. B137693. Court of Appeal, Second District, Division Three. December 29, 2000. *687 Ann P. Cohn and Bruce A. Reed, Munger, Tolles & Olson and Henry Weissmann, Los Angeles, for Petitioner Southern California Edison Company. Roger J. Peters, Christopher J...
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236 F.3d 1014 (9th Cir. 2001) CHARLOTTE BLY-MAGEE, Plaintiff-Appellant,v.STATE OF CALIFORNIA; CALIFORNIA DEPARTMENT OF REHABILITATION; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; DANIEL E. LUNGREN, ATTORNEY GENERAL, Defendants-Appellees. No. 98-56523 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 12, 2000Filed January 2, 2001 [Copyri...
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Tosco Corporation (“Tosco”) claims that the district court has diversity jurisdiction over this action under 28 U.S.C. § 1332 because, under the “nerve *497center” test, its principal place of business is Connecticut. But we apply the “place of operations” test when a corporation conducts a substantial predominance of its business activities within a state. See Industrial Tectonics, Inc. v. Aero A...
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102 Cal. Rptr. 2d 711 (2001) 85 Cal. App. 4th 1279 6 ANGELS, INC., Plaintiff and Respondent, v. STUART-WRIGHT MORTGAGE, INC., et al., Defendants and Appellants. No. B128163. Court of Appeal, Second District, Division Four. January 2, 2001. *712 Burnett & Matthews, Michael W. Burnett and Arturo E. Matthews, Jr., Los Angeles, for Defendants and Appellants. Law Offices of Jody D. Angel and Jody ...
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102 Cal. Rptr. 2d 813 (2001) 85 Cal. App. 4th 1249 Greg DISTEFANO, Plaintiff and Appellant, v. John Glenn FORESTER, Defendant and Respondent. No. D035333. Court of Appeal, Fourth District, Division One. January 2, 2001. *815 The Traut Law Firm, James R. Traut and Eric V. Traut, Santa Ana, for Plaintiff and Appellant. Horvitz & Levy, Barry R. Levy, Julie L. Woods, Encino; Brownwood & Rice ...
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Appellant Rogelio Medina appeals the denial of his motion to dismiss the indictment charging him with being an illegal alien found in the United States following deportation, in violation of 8 U.S.C. § 1326. Medina entered a conditional plea of guilty to the indictment. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Medina contends that the indictment should have been dismiss...
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McCarthy M. Jeter appeals a 51-month sentence imposed after a jury convicted him of importation of marijuana, in violation of 21 U.S.C. §§ 952, and 960, and possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Jeter raises three issues: (1) whether the district court erred by granting only a one-level reduction for acceptance of responsibility; (2) whether t...
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ORDER Appellants have moved for certification of two state law questions, asking us to certify the following questions to the California Supreme Court: May the California Attorney General appeal a plea bargain entered into between a defendant charged with murder and the Orange County District Attorney on the basis that the plea bargain was unauthorized under California Penal Code section 1192...
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ORDER We certify to the California Supreme Court the question set forth in Part III of this order. We stay further proceedings in this court pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court. If the California Supreme Court accepts the certified question, the parties shall file a joint report six months af...
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William Downey appeals from the district court’s grant of summary judgment to Crowley Marine Services, Inc. on his claim of employment discrimination in violation of the Washington Law Against Discrimination, Wash. Rev.Code § 49.60.180. We reverse and remand for trial. I William Downey began working for Crowley Marine Services (“Crowley”) in 1989. In 1991, he took a position as marine operati...
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Maxwell Hoffman (“Hoffman”) appeals the district court’s dismissal of his petition for a writ of habeas corpus, in which he claims, inter alia, that the district court erred in finding that: (1) Idaho Code § 19-2719 was an adequate and independent state law ground to support the state court’s judgment that petitioner had defaulted his ineffective assistance of counsel claims; (2) petitioner’s due ...
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102 Cal. Rptr. 2d 834 (2001) 85 Cal. App. 4th 1300 GOLDEN EAGLE REFINERY COMPANY, INC., et al., Plaintiffs and Appellants, v. ASSOCIATED INTERNATIONAL INSURANCE COMPANY et al., Defendants and Respondents. No. B132448. Court of Appeal, Second District, Division 4 January 3, 2001. Rehearing Denied February 2, 2001. Review Denied April 11, 2001. *836 Zevnik Horton Guibord McGovern Palmer & Fogna...
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102 Cal.Rptr.2d 604 (2001) 85 Cal.App.4th 1289 The PEOPLE, Plaintiff and Appellant, v. Robin Marie LIM, Defendant and Respondent. No. C034940. Court of Appeal, Third District. December 19, 2000. Rehearing Denied January 8, 2001. Review Denied April 11, 2001. *606 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney Gene...
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102 Cal. Rptr. 2d 555 (2001) 24 Cal. 4th 789 14 P.3d 227 The PEOPLE, Plaintiff and Respondent, v. Mary Lucia MAZURETTE, Defendant and Appellant. No. S081661. Supreme Court of California. January 4, 2001. *556 Jonathan B. Steiner and Cheryl Lutz, under appointments by the Supreme Court, and Thomas F. Coleman, under appointment by the Court of Appeal, Los Angeles, for Defendant and Appellant. Bill ...
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102 Cal.Rptr.2d 562 (2001) 24 Cal.4th 800 14 P.3d 234 CHARLES J. VACANTI, M.D., INC., et al., Plaintiffs and Appellants, v. STATE COMPENSATION INSURANCE FUND et al., Defendants and Respondents. No. S071945. Supreme Court of California. January 4, 2001. *569 Howrey & Simon, Howrey Simon Arnold & White, John E. McDermott, Philip G. Grant and Keri R. Curtis, Los Angeles, for Plaintiffs and A...
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102 Cal. Rptr. 2d 872 (2001) 85 Cal. App. 4th 1321 BOARD OF EDUCATION of the Sacramento City Unified School District, Plaintiff and Appellant, v. SACRAMENTO COUNTY BOARD OF EDUCATION, Defendant and Respondent; Kenneth H., a Minor, Real Party in Interest and Respondent. No. C034268. Court of Appeal, Third District. January 5, 2001. *873 Law Offices of Hamilton & Young, Spector, Middleton &...
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The issue in this case is one of habeas corpus procedure, where no certificate of appealability has been issued. *551 Facts. Mikels was convicted of bank fraud. His sentence included an order that he make restitution to the bank. He appealed other aspects of the case, but not the restitution order. His appeal was dismissed as moot. Subsequently, Mikels moved to vacate, correct or set aside ...
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Upon the vote of a majority of nonre-cused regular active judges of this court, 1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. 1 . Judge Fisher was recused. ...
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Opinion This case requires us to interpret provisions of the Roberti-Roos Assault Weapons Control Act of 1989 (Pen. Code, §§ 12275-12290) (the AWCA or Act), 1 which have not heretofore been judicially construed. The questions presented are whether, under that Act, a licensed gun dealer can acquire, possess and sell unregistered assault weapons and whether he may hold assault we...
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102 Cal. Rptr. 2d 864 (2001) 85 Cal. App. 4th 1356 PAUL FOR COUNCIL, Plaintiff and Appellant, v. Ricki HANYECZ et al., Defendants and Respondents. No. B140077. Court of Appeal, Second District, Division Three. January 5, 2001. *866 William J. Cleary, Jr., Los Angeles; Paul M. Christiansen, for Plaintiff and Appellant. Reed & Davidson, Dana W. Reed and Bradley W. Hertz, for Defendants and Resp...
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Opinion We granted review to decide whether a city ordinance imposing an inspection fee on private landlords violates article XIII D of the California Constitution (article XIII D), added by initiative measure, Proposition 218, in 1996. We conclude that it does not. In July 1998, the City of Los Angeles put into effect the Los Angeles Housing Code. It is codified as article 1 of chapter XVI of th...
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Affirmed on appeal from D. C. D. C....
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C. A. 9th Cir. Motion of petitioner for leave to proceed in forma pau-peris granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi v. New Jersey, 530 U. S. 466 (2000)....
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C. A. 9th Cir. Motion of petitioner for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Apprendi v. New Jersey, 530 U. S. 466 (2000)....
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delivered the opinion of the Court. The Commissioner of Internal Revenue assessed tax deficiencies against petitioners David and Louise Gitlitz and Philip and Eleanor Winn because they used nontaxed discharge of indebtedness to increase their bases in S corporation stock and to deduct suspended losses. In this case we must answer two questions. First, we must decide whether the Internal Revenue Co...
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delivered the opinion of the Court. Section 404(a) of the Clean Water Act (CWA or Act), 86 Stat. 884, as amended, 33 U. S. C. § 1344(a), regulates the discharge of dredged or fill material into “navigable waters.” The United States Army Corps of Engineers (Corps) has interpreted § 404(a) to confer federal authority over an abandoned sand and gravel pit in northern Illinois which provides habitat f...
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102 Cal. Rptr. 2d 804 (2001) 85 Cal. App. 4th 1435 Peter BULLOCK et al., Plaintiffs and Appellants, v. MARYLAND CASUALTY COMPANY, Defendant and Respondent. Peter Bullock et al., Plaintiffs and Appellants, v. American Guaranty & Liability Insurance Company et al., Defendants and Respondents. Peter Bullock et al., Plaintiffs and Appellants, v. Fireman's Fund Insurance Company, Defendant and Res...
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OPINION A debtor appeals from an order allowing an oversecured creditor’s claim; specifically, the debtor argues that the bankruptcy court erred in permitting the creditor to recover a contractual default rate of interest and attorneys’ fees for pursuing payment on guaranties, and in denying debtor’s request for attorneys’ fees for successfully defending a relief from stay motion and ...
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236 F.3d 1035 (9th Cir. 2001) ROBERT C. KONOP, Plaintiff-Appellant,v.HAWAIIAN AIRLINES, INC., Defendant-Appellee. No. 99-55106 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 8, 2000Filed January 8, 2001 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 262 F.3D AT 972. ...
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236 F.3d 1148 (9th Cir. 2001) COUNTY OF TUOLUMNE; ERIC RUNTE, Plaintiffs-Appellants,v.SONORA COMMUNITY HOSPITAL; DONOVAN TEEL; HILLSIDE OBSTETRICS AND GYNECOLOGY; MEDICAL GROUP, INC.; LOUIS ERICH; SONORA MEDICAL GROUP, INC., Defendants-Appellees. No. 98-17424 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2000Filed January 8, 2001 ...
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Plaintiffs appeal the district court’s dismissal of their suit on the basis of forum non conveniens. Plaintiffs, citizens of New Zealand, are victims of an airplane crash in New Zealand, on a New Zealand carrier. Plaintiffs allege that the radio altimeter of the Ground Proximity Warning System (“GPWS”) malfunctioned during flight and was a causal factor of the accident. Defendants, the Canadian ma...
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Opinion This case arises from the action of Michael Botsford, principal of A.E. Wright Middle School (the middle school), in changing citizenship *4 marks on the report cards of three students from the marks given them by their teacher, James Ferris. The trial court issued a preliminary injunction requiring appellants to reinstate the original marks given by Ferris pending th...
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*33 Opinion This case involves the retroactive reclassification of local government employees from “miscellaneous” to “firefighter,” a safety membership which earns better pension benefits. (See Gov. Code, §§ 20370, subd. (c), 20420, 20433; further undesignated section references are to this code.) We agree with the trial court that the employees in this case were “firefight...
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Opinion Code of Civil Procedure 1 section 425.16 is California’s antiSLAPP suit (strategic lawsuits against public participation) statute (hereafter referred to as section 425.16 or the anti-SLAPP statute). 2 The anti-SLAPP statute was specifically enacted to provide both a summary disposition and attorney fees and costs to defendants in such actions. 3 ...
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In a case of first impression in our court, we interpret the term “habitual residence” in the Hague Convention on the Civil Aspects of International Child Abduction. I Arnon and Michal Mozes are Israeli citizens. Married in 1982, they have four children, ranging in age from seven to sixteen years. Until 1997, parents and children lived in Israel, as they had their entire lives. In Apr...
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Robert D. Slenk (“Slenk”) and his wife, Chris Slenk, appeal the United States District Court for the District of Hawaii’s (“the district court”) order granting summary judgment to Transworld Systems (“Transworld”). Slenk brought this consumer protection action alleging that Transworld had engaged in abusive debt collection practices violative of the Fail-Debt Collection Practices Act (“FDCPA”),...
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We must decide whether the federal court had removal jurisdiction over an action brought by a passenger against a cruise line and insurance companies alleging various tort and contract claims arising out of events in the port city of Bombay, India, and, if so, whether these claims were properly dismissed on summary judgment. I Ottilie Morris (“Mrs. Morris”) appeals the district court’s dismissal o...
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236 F.3d 1160 (9th Cir. 2001) DAVID WILLIS, Plaintiff-Appellant,v.PACIFIC MARITIME ASSOCIATION; INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #10.; INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, Defendants-Appellees.PAUL GOMEZ, Plaintiff-Appellant,v.PACIFIC MARITIME ASSOCIATION; INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, LOCAL #10.; INTERNATIONAL LONGSHOR...
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Appellant Joseph A. Bowie (“Bowie”) appeals a judgment originating from the Superior Court of the Commonwealth of the Northern Mariana Islands (“CNMI”) encompassing convictions for the premeditated murder in 1992 of Elaudio Laude (“Laude”), and for the kidnaping of Laude and his friend, Nilo Rivera (“Rivera”). The Supreme Court of the CNMI has signaled its affirmance of the convictions in a ...
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Antonio Gumataotao filed a petition in the United States District Court for the District of Guam seeking a redetermination of his territorial tax liability for the years 1992-1994. Specifically, he sought a ruling that Guam could not tax Guam residents on interest earned from United States bonds. Contrary to Gumataotao’s main contention, the district court concluded that the government of Guam ...
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236 F.3d 1097 (9th Cir. 2001) WASHINGTON LEGAL FOUNDATION; ALLEN D. BROWN; DENNIS H. DAUGS; GREG HAYES; L. DIAN MAXWELL, Plaintiffs-Appellants,v.LEGAL FOUNDATION OF WASHINGTON; KEVIN F. KELLY; BARBARA DURHAM, Chief Justice; GERRY L. ALEXANDER, Justice; JAMES M. DOLLIVER, Justice; RICHARD P. GUY, Justice; CHARLES WAYNE JOHNSON, Justice; BARBARA A. MADSEN, Justice; CHARLES Z. SMITH, Justice; PHI...
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Opinion This is an appeal by the People from the decision of the trial court dismissing the action below after granting defendant’s motion made pursuant to Penal Code section 1538.5. 1 Applying the recent case of Florida v. J.L. (2000) 529 U.S. 266 [120 S.Ct. 1375, 146 L.Ed.2d 254] (Florida v. J.L), the trial court ruled that the detention and patsearch of an individual identified by ...
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Opinion In 1977, plaintiffs Douglas and Jill Sutherland bought the Barracks Mall in downtown Fort Bragg, a two-story commercial and residential building that occupies the lot on which it is situated, up to the perimeter of the property line. At that time and continuing to 1997, the lot adjoining Barracks Mall to the south, owned by David Codling (Codling), was vacant. Owing to that fact, ...
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*29 Opinion The chief question in this case is whether a broker-dealer of securities has a common law duty to supervise sales by its registered representatives of investments in which the broker-dealer has no economic interest to persons who are not customers of the broker-dealer. We hold that where, as here, the registered representative is not an employee of the broker-dealer, ...
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Opinion Under subdivision (b) of Penal Code section 1202.4,1 a trial court must impose “a separate and additional restitution fine” as part of the judgment of conviction entered against a criminal defendant, “unless it finds compelling and extraordinary reasons for not doing so, and states those reasons on the record.” If the “sentence includes a period of parole,” then the court must also impose ...
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Opinion Factual Background Appellant Mario Lara was charged and convicted of first degree burglary and sentenced to the third strike term of 25 years to life, with an additional 11 years for prior serious felonies and prior prison term enhancements. *144 Appellant hired privately retained counsel, David Roberts, to represent him throughout the criminal proceedings. Appe...
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dissenting: Because I can find no record of oral consent by the parties to the magistrate judge’s authority to proceed under 28 U.S.C. § 636(c), but only consent forms filed in the district court February 28, 2000 — nearly three years after the “final” judgment was entered on December 19, 1997 and two years after the notice of appeal was filed (January 5, 1998) — I would vacate the judgment, dismi...
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*1008 ORDER Pursuant to the Stipulation of the parties, filed August 30, 2000, to Effectuate this Court’s August 15, 2000 Order, the Opinion filed^ on December 28, 1999 is withdrawn. Pursuant to Rule 42(b) of the Federal Rules of Appellate Procedure, this case is dismissed and the mandate shall issue forthwith. ...
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237 F.3d 987 (9th Cir. 2001) LANA GUEBARA, Plaintiff-Appellant Cross-Appellee,v.ALLSTATE INSURANCE COMPANY, Defendant-Appellee Cross-Appellant. Nos. 98-55458, 98-5549 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 7, 1999Filed January 12, 2001 Alan L. Geraci, Frantz & Geraci, San Diego, California, for the plaintiff-appellant-cross-...
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237 F.3d 967 (9th Cir. 2001) In re: GARY LAZAR; DIVINE GRACE LAZAR; CALIFORNIA TARGET ENTERPRISES, INC.; ALAMEDA MANAGEMENT COMPANY, INC.; LIBERTY MARKETING COMPANY, INC.; P & M SERVICE STATIONS, INC.; PRONTO MARKETING COMPANY, INC.; MISSION MARKETING GROUP, INC.; GOOD GUYS LUBE N' TUNE,INC.; CHALLENGE MARKETING CO., INC.; CALIFORNIA TARGET SUPPLY, INC. Debtor.GEORGE E. SCHULMAN, Chapter 7...
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Does the Los Angeles County Sheriffs Department (the “LASD”) in adopting and administering its policy of requiring that a records check, including review of all wants and holds received on a prisoner’s release date, act on behalf of the state of California or on behalf of the County of Los Angeles (the “County”)? The answer to this question determines whether the County may be subject to liability...
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C. A. 2d Cir. Certiorari granted. Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, February 26, 2001. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, March 28, 2001. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m...
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C. A. 2d Cir. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Monday, February 26, 2001. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Wednesday, March 28, 2001. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or before 3 p....
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Opinion This appeal having previously been dismissed, appellant moves to recall the remittitur. Respondents not only oppose the motion but request the imposition of sanctions on appellant’s counsel for factual misrepresentations made to the court. The request for sanctions raises the legal question whether an appellate court has inherent authority to impose sanctions in the form of attorn...
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Guillermo Vallejo appeals his conviction under 21 U.S.C. §§ 841(a)(1), 952, and 960 for importation and possession with intent to distribute marijuana. We consider whether expert testimony detailing the structure of drug trafficking organizations may be routinely introduced in drug importation cases, regardless of whether the defendant is charged with a drug trafficking conspiracy or otherwise ...
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This case turns on summary judgment procedure. The issue is whether a judge must consider materials outside the motion papers and things referred to therein. Facts Plaintiff Gwendolyn Carmen holds state certification to teach elementary school. For many years, she worked as a day to day substitute teacher in San Francisco. Though she does not speak, read or write Chinese, she worked as a long-term...
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Opinion by Judge D.W. NELSON; Dissent by Judge REINHARDT. William R. Stephens appeals a 180-month sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Although the penalty for this offense normally does not exceed 10 years, see 18 U.S.C. § 924(a)(2), the Armed Career Criminal Act (“ACCA”) mandates a minimum sentence of 15 years for people with three previous...
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531 U.S. 278 (2001) CITY NEWS & NOVELTY, INC. v. CITY OF WAUKESHA No. 99-1680. United States Supreme Court. Argued November 28, 2000. Decided January 17, 2001. CERTIORARI TO THE COURT OF APPEALS OF WISCONSIN *279 *280 Ginsburg, J., delivered the opinion for a unanimous Court. Jeff Scott Olson argued the cause for petitioner. With him on the briefs were Richard L. Wilson, John H. Weston, G. Ra...
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Opinion George Dallas Hill appeals his convictions, following a jury trial, of two counts of lewd or lascivious acts on his eight-year-old granddaughter (Pen. Code, § 288, subd. (a)) and one count of annoying or molesting a child with a previous conviction. (Pen. Code, § 647.6, subd. (c)(2).) In a bifurcated trial, the court found true allegations that Hill had three prior “strike convictions” ...
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*282Opinion Building Permit Consultants, Inc., and John Kaldawi appeal from an order denying a special motion to strike an action as a “SLAPP” (strategic lawsuits against public participation) suit. We affirm the order of the trial court. Factual and Procedural Background The underlying lawsuit is brought by 20th Century Insurance Company. Defendant Building Permit Consultants is a company assist...
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Opinion Does a sheriff have authority to administratively restrict a deputy’s peace officer powers to arrest and to carry a concealed firearm off *339 duty, when the deputy has shown he may present a danger to the public if he is allowed to exercise those powers? We conclude a sheriff does have such authority. However, we also conclude that a deputy has a right to admini...
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102 Cal. Rptr. 2d 921 (2001) 86 Cal. App. 4th 353 The PEOPLE, Plaintiff and Respondent, v. James PERACCHI, Defendant and Appellant. No. F031202. Court of Appeal, Fifth District. January 17, 2001. Rehearing Denied February 6, 2001. Review Denied May 2, 2001. *922 Victor Blumenkrantz, Berkeley, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Da...
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103 Cal. Rptr. 2d 1 (2000) 24 Cal. 4th 871 15 P.3d 223 Zubair M. KAZI et al., Plaintiffs and Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY et al., Defendants and Respondents; Kerns & Gradillas et al., Movants and Respondents; Gary S. Smolker, Objector and Appellant. No. S078962. Supreme Court of California. January 18, 2001. Rehearing Denied April 11, 2001. *3 Law Offices of Smolker &am...
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Opinion We granted review to decide whether the so-called rule of consistency—that the acquittal of all alleged coconspirators but one requires acquittal of the remaining alleged conspirator—requires the reversal of a conspiracy conviction in this case, and whether similar principles require the reversal of a finding as to one but not both codefendants that an attempted murder was premeditated. W...
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Opinion The petition challenges the order of Honorable Wayne R. Ellison that Deputy Public Defender Ron Perring act as “stand-by counsel” and attend Mr. Keith David Goodwin’s trial so that he would be available to pick up the case immediately should the court withdraw Goodwin’s self-representation. Petitioner contends this is unlawful in that it violates Government Code section 27706 concerning...
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This action arises from the denial of disability income insurance benefits. Dana LaVenture (“LaVenture”) appeals the district court’s summary judgment order in favor of Appellee Prudential Life & Accident Insurance Company (“Prudential”). The district court determined that LaVen-ture’s disability policy was part of an overall ERISA benefits plan. Therefore, the district court dismissed LaVentur...
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237 F.3d 1054 (9th Cir. 2001) WILLIAM J. PAWLYK, PETITIONER-APPELLANT,v.TANA WOOD, RESPONDENT-APPELLEE. No. 98-35026 U.S. Court of Appeals, Ninth Circuit Argued and Submitted January 4, 1999January 19, 2001 1 NOTE: SEE AMENDED OPINION AT 248 F.3d 815. ...
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237 F.3d 1048 (9th Cir. 2001) CARLOS MOLINA-MORALES, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-71410 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 9, 2000Filed January 19, 2001 Manuel Rios, Seattle, Washington, for the petitioner. Norah Ascoli Schwarz, U.S. Department of Justice, Washington, D.C., fo...
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C. A. 9th Cir. Certiorari granted....
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C. A. 10th Cir. Motion of Shakopee Mdewakanton Sioux (Dakota) Commu- • nity et al. for leave to file a brief as amici curiae granted. Cer-tiorari granted....
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Opinion I. Introduction Plaintiff, Gulf Insurance Company (Gulf) appeals after a final judgment was entered in its favor and against defendants, TIG Insurance Company and TIG Insurance Company of Michigan (TIG). The appeal is from an order sustaining demurrers to Gulf’s claims for breach of contract and of the implied covenant of good faith and fair dealing in the original complaint....
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Opinion Appellant Harry R. Palmer appeals the judgment following his conviction for continuous sexual abuse and misdemeanor molestation of his grandsons. After review, we reverse and remand for resentencing and affirm in all other respects. Factual and Procedural Background In accord with the usual rules of appellate review, we state the facts in the light most favorable to the judgment. (...
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103 Cal. Rptr. 2d 269 (2001) 86 Cal. App. 4th 384 CITY OF SAN DIEGO, Plaintiff and Respondent, v. Michael Kane DUNKL et al., Defendants and Appellants. Padres, L.P., Plaintiff and Respondent, v. Michael Kane Dunkl et al., Defendants and Appellants. Nos. D035559, D035585. Court of Appeal, Fourth District, Division One. January 22, 2001. Review Denied April 25, 2001.[*] *272 J. Bruce Henderson, Gle...
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237 F.3d 1066 (9th Cir. 2001) MARIA MARIE ARRINGTON, Individually; Estate of HAROLD E. ARRINGTON, Deceased; TISHA MAUNAALA ARRINGTON, a minor, a nfr Maria Marie Arrington; Estate of HAROLDLIND KEALAPULANI FITZGERALD, Deceased; PEARL MOMILANI ARRINGTON; CHARLOTTE NALANI PARKS; LYNNETTE LEILANI ARRINGTON; HAROLD EDWARD ARRINGTON, JR.; KELLY ARRINGTON; ARDELLA AHLOHA ARRINGTON; ERIC ANTHONY ARRIN...
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dissenting: I would reverse. In product liability cases involving the health and well being of Americans, such as exposure to carcinogens, or, as here, rebanee on possibly defective heart valves, a primary settlement difficulty is the inability to predict whether any given claimant will, in the future, suffer cancer or heart failure or similar harm. In the mean*1155time, however, all victims may s...
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103 Cal. Rptr. 2d 258 (2001) 86 Cal. App. 4th 404 Thomas McCORMICK et al., Plaintiffs and Appellants, v. TRAVELERS INSURANCE COMPANY et al., Defendants and Respondents. No. A088300. Court of Appeal, First District, Division Two. January 22, 2001. Review Denied April 18, 2001. *259 Gumbiner & Eskridge, Joel P. Gumbiner, Jack D. Eskridge, Walnut Creek, for Appellants. Farbstein & Blackman, ...
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Miguel Adolf Valdez-Pacheco (“Valdez”) appeals pro se the district court’s denial of his petition for a writ of audita querela, challenging his conviction and sentence resulting from his jury trial conviction in 1989 for various controlled substance offenses. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. I. FACTS AND PROCEDURAL HISTORY In 1989, Valdez was convicted after...
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Garcia-Sanchez was convicted of conspiracy to distribute more than five kilograms of cocaine in violation of 21 U.S.C. § 846 and sentenced to 121 months in prison. He previously appealed both his conviction and sentence. We affirmed the conviction but reversed and remanded for resentencing. See United States v. Garcia-Sanchez, 189 F.3d 1143 (9th Cir.1999). In this second appeal following resent...
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237 F.3d 1080 (9th Cir. 2001) EMILY SNEAD, Plaintiff-Appellant,v.METROPOLITAN PROPERTY & CASUALTY INSURANCE COMPANY, a Delaware Corporation; JAMES MCINTOSH, Defendants-Appellees. No. 99-35071 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 4, 2000Filed January 23, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrigh...
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239 F.3d 1037 (9th Cir. 2001) CARLOS CASTRO-CORTEZ, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.JOSE LUIS ARAUJO, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.FRANCISCO MARIO FUNES-QUEVADO, A.K.A. FRANCISCO MARIO FUNES, PETITIONER,v.JANET RENO, ATTORNEY GENERAL, RESPONDENT.RAMON RUEDA, PETITIONER,v.RICHARD C. SMITH, DISTRICT DIRECTOR AND JANET RENO, ATTOR...
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James A. Petralia appeals the Bankruptcy Appellate Panel (“BAP”) affirmance of the Bankruptcy Court’s order granting judgment in favor of debtor George Jer-cich in Petralia’s action seeking to have a debt excepted from discharge under 11 U.S.C. § 523(a)(6). We have jurisdiction under 28 U.S.C. § 158(d). We reverse. I. The underlying facts of this case are undisputed. From June 1981 to January...
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Opinion Defendants 1333 North California Boulevard, a limited partnership (the Partnership), Sunset Ridge, Co., Inc. (Sunset) and Sanford Diller (Diller; the Partnership, Sunset and Diller are referred to collectively as Borrowers) appeal from the order denying their motion for judgment notwithstanding the verdict after a jury found them liable to plaintiff The Nippon Credit Bank, Ltd., L...
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Opinion Appellant Axel Ernesto McPherson aided another in raping Nancy T. Immediately thereafter he raped her. He pleaded no *529contest to two counts of forcible rape (§261, subd. (a)(2)),1 and was sentenced to 12 years in prison, consisting of consecutive sentences of six years on each count.2 McPherson contends that he should not have received consecutive sentences. He claims that the trial cou...
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103 Cal. Rptr. 2d 438 (2001) 86 Cal. App. 4th 513 The PEOPLE, Plaintiff and Respondent, v. David Reyes LUERA, Defendant and Appellant. No. B134479. Court of Appeal, Second District, Division Three. January 24, 2001. *440 Thomas Hunter Russell and Robert A. Wynn, Hollywood, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wende...
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240 F.3d 795 (9th Cir. 2001) THEIS RESEARCH, INC., (TRI), an Illinois corporation, Plaintiff-Appellant,v.BROWN & BAIN, a California and Arizona law firm, and such present and former Brown & Bain partners, associates, and other personnel responsible for the management and trial of all litigation involving Peter F. Theis and Theis Research, Inc., Defendant-Appellee. No. 00-15219 ...
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Appellants Patrick and Anita Nugent (“the Nugents”), claimants in the bankruptcy proceedings of Betacom of Phoenix, Inc., Beta Communications, Inc. (collectively, the “Betacom Entities”), and American Broadcasting Systems, Inc. (“ABS”), seek parity with the general unsecured creditors of the Betacom Entities and ABS. The bankruptcy court granted partial summary judgment to the Beta com Entities an...
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237 F.3d 1101 (9th Cir. 2001) MATILDA MABE, Plaintiff-Appellant,v.SAN BERNARDINO COUNTY, DEPARTMENT OF PUBLIC SOCIAL SERVICES; KAREN PERRY; JEFF LUTHER; BRENDA WALKER; KATHY MCBRIDE; DAN SHOREE; CHUCK MCATEE; STEPHANIE RUMPLER, Defendants-Appellees. No. 98-56561 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 10, 2000Filed January 24, 2001 ...
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Defendants Lewis Tam, Robert Ng, and Co Giang, were part of a car purchasing and insurance fraud scheme involving many participants. All three co-defendants were charged with conspiracy to commit mail fraud and to transport stolen cars in foreign commerce; mail fraud; and transporting stolen cars in foreign commerce. Ng and Tam were also charged with conspiracy to launder money. Following a joint...
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237 F.3d 1113 (9th Cir. 2001) PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees,v.HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants,andUNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Defendant-Appellant.PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; BARBARA HILL, Plaintiffs-Appellees,v.HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, Defendants-Appellants,andUNITED...
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*540 Opinion Plaintiffs and appellants Hermosa Beach Stop Oil Coalition, Heal the Bay, Santa Monica Baykeeper and American Oceans Campaign (hereafter collectively referred to as Stop Oil) appeal from a judgment after a bench trial entered in favor of defendants and respondents City of Hermosa Beach and City Council of the City of Hermosa Beach (the City) and real parties in inter...
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103 Cal. Rptr. 2d 320 (2001) 24 Cal. 4th 906 15 P.3d 1071 WASHINGTON MUTUAL BANK, FA, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Jayne A. Briseno, Real Party in Interest. No. S070418. Supreme Court of California. January 25, 2001. *324 Stroock & Stroock & Lavan, Julia B. Strickland, Lisa M. Simonetti, Los Angeles, and Andrew W. Moritz, for Petitioner. O'Melveny & ...
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238 F.3d 1171 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.TUCOR INTERNATIONAL, INC.; TUCOR INDUSTRIES, INC., dba Tucor Moving & Storage Corporation; LUZON MOVING & STORAGE CORPORATION; GEORGE SCHULZE, SR.; GEORGE SCHULZE, JR., Defendants-Appellants. No. 00-10167 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 13, 2000Fi...
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Opinion Introduction These consolidated civil actions arise from the murders of Nicole Brown Simpson and Ronald Lyle Goldman. A jury found that defendant Orenthal James (O.J.) Simpson committed these homicides willfully and wrongfully, with oppression and malice. Sharon Rufo and Fredric Goldman, the parents and heirs of Ronald Goldman, were awarded $8.5 million compensatory damages o...
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Opinion Following entry of judgment in favor of defendant Tuff Boy Holding, Inc. (hereafter Tuff Boy) and against plaintiff Wilshire Insurance Company (hereafter Wilshire) on a claim for indemnity, Wilshire appeals from the judgment, challenging the trial court’s prejudgment grant *630 of a motion for good faith settlement between Tuff Boy and the plaintiffs in an underlying ...
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We address here when a paper is “received” by the clerk for purposes of fifing, under Federal Rule of Appellate Procedure 25. FACTS In substance this is an asylum case, but our decision on the substantive claim is *1146 stated in a memorandum disposition filed concurrently with this opinion. This opinion deals only with a procedural aspect. This petition for review had to be “filed” withi...
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Opinion by Judge SILVERMAN; Concurrence and Dissent by Judge NOONAN. Petitioner Kelly DePetris shot and killed her husband Dana DePetris while he was asleep in bed. At trial, she claimed “imperfect self-defense” — that is, she claimed to have had an actual, honest belief that she was in imminent danger even if such a belief was objectively unreasonable. Under California law, imperfect self-defense...
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Petitioner Duke Khan appeals denial of his asylum application on the ground that the Board erred in upholding the exclusion for lack of authentication of certain official records offered during his hearing before the immigration judge. He also appeals the exclusion of these and other documents offered into evidence on appeal and challenges the decision of the Board of Immigration Appeals (“BIA”...
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Opinion A father of minor children appeals from an order modifying his child support obligation. We affirm. *648Factual and Procedural Background Dennis Scheppers and Nancy Scheppers married in 1974. The marriage produced six children: Micah, Matthew, Amber, Joseph, Amanda, and Jennifer. When their marriage was dissolved in 1987, all six children were minors. In July of 1998, the mother applied f...
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Opinion Peggy Sue Biggums-Slayton (Mother) appeals from an order granting custody of her minor son to her former husband, Timothy E. Slayton, Sr. (Father). We affirm the order. *656 I Factual and Procedural Background The parties were married in 1980. Their first child, Timothy, Jr., was bom in 1981. The child whose custody is at issue, Turhan, was born in January 1995. In May 1997, F...
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At issue in this appeal is whether proof of true identity is an essential element of the government’s proof for a conviction pursuant to 18 U.S.C. § 1542 for using a passport obtained through the use of a false statement and making a false statement in an application for another passport. We conclude it is not and affirm the judgment of conviction. *1166 I So, as a young Capulet agonized, w...
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ORDER The opinion filed on October 3, 2000, and reported as Snake River Valley Elec. As soc. v. PacifiCorp, 228 F.3d 972 (9th Cir.2000), is withdrawn and the Amended Opinion filed concurrently with this order is substituted in its place. With the filing of the amended opinion, the panel has voted to deny the petitions for panel rehearing. Judges Tashima and McKeo...
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This case presents questions of standing to sue under the Nonintercourse and General Allotment Acts with respect to a leasehold in allotted land on an Indian Reservation in Arizona. I San Xavier Development Authority (the “Development Authority”) is a non-profit corporation chartered by the Tohono O’od-ham Indian Nation, a federally-recognized Indian tribe. The Development Authority i...
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This case requires us to decide whether the district court properly reviewed Paul Revere Life Insurance Company’s decision to terminate Penny Grosz-Salomon’s disability insurance benefits for an abuse of discretion, and if so, whether the court’s determination that Paul Revere abused that discretion in denying benefits withstands scrutiny. For the reasons explained below, we hold that the distr...
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103 Cal. Rptr. 2d 538 (2001) 86 Cal. App. 4th 664 C.J.A. CORPORATION, Cross-complainant and Respondent, v. TRANS-ACTION FINANCIAL CORPORATION et al., Cross-defendants and Appellants. No. A086348. Court of Appeal, First District, Division Three. January 29, 2001. Review Denied May 16, 2001. *539 Roger Bernhardt and Kyle G. Bach, San Francisco, CA, Counsel for Cross-defendants and Appellants. Malat...
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104 Cal.Rptr.2d 77 (2001) 86 Cal.App.4th 699 The PEOPLE, Plaintiff and Respondent, v. Larry JENKINS, Defendant and Appellant. No. B139842. Court of Appeal, Second District, Division Five. January 29, 2001. Rehearing Denied February 15, 2001. Review Denied April 25, 2001. Christine C. Shaver, under appointment by the Court of Appeal, Pacific Palisades, for Defendant and Appellant. Bill Lockyer, At...
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103 Cal.Rptr.2d 552 (2001) 86 Cal.App.4th 833 HESSIANS MOTORCYCLE CLUB et al., Plaintiffs and Appellants, v. J.C. FLANAGANS et al., Defendants and Respondents. No. G022832. Court of Appeal, Fourth District, Division Three. January 29, 2001. Review Denied May 2, 2001. *553 Law Offices of Richard M. Lester, Encino, and Randolph M. Hammock, Los Angeles, for Plaintiffs and Appellants. Ronald Talmo, f...
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Opinion Michael M., a minor (appellant) appeals from a juvenile court order sustaining a Welfare and Institutions Code section 602 petition charging him with five misdemeanor counts, consisting of two counts of violating Penal Code section 422.6, subdivision (b), 1 two counts of vandalism causing damage under $400 in violation of section 594, subdivision (a), and one count of possession of to...
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Defendants John Smith Zink and Zeeco, Inc., appeal the district court’s judgment holding them in civil contempt for violating a 1986 injunction, denying their motion to modify the injunction, and assessing attorney fees and costs against them. We affirm. I. Plaintiff John Zink Company was founded in 1929 by John Steele Zink, the father of defendant John Smith Zink. Plaintiff registere...
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Opinion This tragic case arose from a domestic dispute between defendant and his wife, Betty, lasting a few days. After Betty decided to *678 move out of her apartment, she enlisted the help of her mother, Nancy, her sister, Edna, and Edna’s husband, Aaron. While the four were at the apartment packing Betty’s belongings, defendant entered the apartment, went to the patio to retrieve a loaded ...
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Opinion By petition for a writ of mandate, the Coors Brewing Company (Coors) seeks to invalidate an amended regulation of the Department of Alcoholic Beverage Control (the Department) that effectively will prohibit alcoholic beverage licensees from continuing to conduct promotional contests in which cash prizes are given to consumers. 1 Coors contends that the regulation (Cal. ...
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Opinion Upon certification by the Appellate Division of the Sacramento County Superior Court, we ordered this appeal transferred to this court in order to settle an important question of law. (Pen. Code, § 1471.) The defendants, Prakash Vallabhdas Parmar and Rosemary Parmar, are facing a 250-count misdemeanor complaint arising out of their ownership and operation of two contiguous mo...
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OPINION The Chapter 7 trustee appeals from an order of the bankruptcy court overruling his objections to the debtor’s claim of exemption in funds held in a retirement plan. He maintains that the debtor’s receipt of all of those funds just days after bankruptcy requires disallowance of the exemption. We disagree and AFFIRM. I. FACTS At the time he filed his Chapter 7 petition, Appellee Jin...
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Edwin Gayle Browning requests leave to file a second or successive application for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (1996), arguing the Supreme Court’s recent decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2848, 147 L.Ed.2d 435 (2000), renders his sentence unconstitutional. We may grant leave to file such an application if it relies upon “a new rule of constitution...
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Michael Christakis appeals the district court’s denial of his petition for a writ of habeas corpus, filed under 28 U.S.C. § 2255. Christakis argues that he was denied effective assistance of counsel because of his attorney’s conflict of interest. We reverse. I. FACTS In August 1990, the government charged Christakis in a five-count indictment with conspiracy to distribute cocaine. The ind...
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Robert Steele appeals from the district court’s grant of summary judgment to Thiokol Corporation and two individual defendants on his claims under thé Americans with Disabilities Act (ADA), 42 U.S.C. § 12101. We affirm. I Robert Steele began his employment with Thiokol in 1987* working as a Rocket Test Technician in the main plant test area. 1 In 1988, after a year with the...
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Opinion Defendant appeals the trial court’s finding that he is a mentally disordered offender (MDO). I Facts and Procedural History On January 3, 1992, defendant pled guilty to one count of second degree robbery (Pen. Code, § 211 1 ), admitted the personal use of a firearm within the meaning of section 12022.5, and was sentenced to an aggregate term of seven year...
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103 Cal. Rptr. 2d 773 (2001) 86 Cal. App. 4th 919 Meredith S. HALE, Plaintiff and Appellant, v. SOUTHERN CALIFORNIA IPA MEDICAL GROUP, INC., et al., Defendants and Respondents. No. B137947. Court of Appeal, Second District, Division Three. January 30, 2001. *774 Gary D. Stabile, Manhattan Beach, for Plaintiff and Appellant. Sulmeyer, Kupetz, Baumann & Rothman and Elissa D. Miller, Los Angeles...
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Opinion Defendant and appellant Fred M. Charness (Charness) appeals a judgment in favor of plaintiff and respondent James Christian Sims (Sims) following a court trial. The essential issue presented is whether a fee-sharing agreement between Attorneys Charness and Sims amounted to a pure referral and thus was subject to rule 2-200 of the Rules of Professional Conduct of the State Bar of Cal...
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103 Cal. Rptr. 2d 626 (2001) 86 Cal. App. 4th 909 The PEOPLE, Plaintiff and Respondent, v. Kevin ALLEN, Defendant and Appellant. No. B136331. Court of Appeal, Second District, Division Three. January 30, 2001. Rehearing Denied February 21, 2001. Review Denied May 2, 2001.[**] *627 Judith Kahn, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, D...
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103 Cal.Rptr.2d 779 (2001) 86 Cal.App.4th 895 HILL MEDICAL CORPORATION, Plaintiff and Appellant, v. Russell R. WYCOFF, Defendant and Appellant. No. B134869. Court of Appeal, Second District, Division Three. January 30, 2001. *781 Frank Albino, Gary Ganchrow, Los Angeles, and Parker, Milliken, Clark, O'Hara & Samuelian, for Plaintiff and Appellant. Charles C. Ivie, Antoinette DeCamp, Los Angel...
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Opinion Insurance Code section 11580.2 (section 11580.2), in part, governs insurance companies in providing uninsured motorist coverage (UMC). Subdivision (c)(2) of section 11580.2 authorizes an insurer to *813 exclude UMC for bodily injury of its insured if the insured is in, upon, entering into, or alighting from, a motor vehicle that is not described in the insured’s auto ...
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103 Cal. Rptr. 2d 605 (2001) 86 Cal. App. 4th 865 CENTURY CITY MEDICAL PLAZA, Plaintiff and Appellant, v. SPERLING, ISAACS & EISENBERG, et al., Defendants and Respondents. No. B133901. Court of Appeal, Second District, Division Three. January 30, 2001. Rehearing Denied February 15, 2001. Review Denied May 16, 2001. *607 Raiskin & Revitz and Steven J. Revitz, Los Angeles, for Plaintiff and...
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Opinion A government agency pays only a portion of a judgment against it for inverse condemnation. In this case of first impression, we hold that Code of Civil Procedure section 1036 1 authorizes litigation expenses to the prevailing plaintiff in an action to enforce the inverse condemnation judgment under Government Code section 970 et seq. We therefore reverse the trial court...
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Defendant Jerry Lee Morgan was convicted by a jury of one count of kidnapping, 18 U.S.C. § 1201(a)(1), and one count of carjacking, 18 U.S.C. § 2119(2). The district court imposed concurrent sentences of 328 and 300 months in prison. Defendant appeals his conviction and sentence; the government cross-appeals the sentence. We affirm on the appeal, reverse on the cross-appeal, and remand for resent...
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240 F.3d 1185 (9th Cir. 2000) HEADWATERS FOREST DEFENSE, Plaintiff, and MOLLY BURTON; VERNELL "SPRING" M. LUNDBERG; MICHAEL MCCURDY; ERIC SAMUEL NEUWIRTH; MAYA PORTUGAL; LISA MARIE SANDERSON FOX; JENNIFER SCHNEIDER; TERRI SLANETZ; NOEL TENDICK, Plaintiffs-Appellants,v.THE COUNTY OF HUMBOLDT, a political subdivision of the State of California; HUMBOLDT COUNTY SHERIFF'S DEPARTMENT; DENNIS LEWIS,...
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Opinion In this case, we consider whether a commercial lessor’s three-day notice to quit or pay, which includes a demand for rent *1037 unpaid for more than a year before the notice was served, can support an action for unlawful detainer. We conclude that inclusion of rent due for over a year is not fatal to an unlawful detainer action, if the notice also includes a demand fo...
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*1046 Opinion I. Introduction This is an action, originally filed in Humboldt County and then transferred to San Francisco, to set aside certain Stanislaus County real property conveyances as fraudulent. The superior court sustained a demurrer to appellant’s amended complaint without leave to amend. The basis of its ruling was that the suit was barred by the applicable statute of limitation...
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Opinion By statute, the state has mandated that all noncertificated school district employees be fingerprinted. (Ed. Code, § 45125.) In conformity with the mandate, the school district tells its employee to comply. But it is the employee who decides when and where to be printed. She elects to do so on a day off. Immediately after being printed, she collides with a motorcycle. We conclude that sub...
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Opinion The law has long recognized that “[t]he duty to disclose knowledge of crime rests upon all citizens. It is so vital that one known to be innocent may be detained, in the absence of bail, as a material witness.” (Stein v. New York (1953) 346 U.S. 156, 184 [73 S.Ct. 1077, 1092, 97 L.Ed. 1522], fn. omitted; see Barry v. United States ex rel. Cun...
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103 Cal. Rptr. 2d 841 (2001) 86 Cal. App. 4th 995 Pamela T. CAMARGO, Plaintiff and Appellant, v. CALIFORNIA PORTLAND CEMENT COMPANY et al., Defendants and Respondents. No. C033137. Court of Appeal, Third District. January 31, 2001. Review Denied May 2, 2001. *842 Matthew R. Berrien and Sabrina M. Tourtlotte of Curtis & Arata, Modesto, for Plaintiff and Appellant. Elaine M. Smith, Gary F. Over...
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Opinion Defendant Michael J. Pierson was convicted of two counts of manufacturing a controlled substance (Health & Saf. Code, § 11379.6, subd. (a)), and the jury found true the allegation that he committed the second offense while released on bail (Pen. Code, § 12022.1, subd. *986 (b)). He was sentenced to eight years eight months in state prison. Defendant Patrick M. Dougher...
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103 Cal.Rptr.2d 809 (2001) 86 Cal.App.4th 970 The PEOPLE, Plaintiff and Respondent, v. Refugio Anthony SANCHEZ, Defendant and Appellant. No. C032228. Court of Appeal, Third District. January 31, 2001. *810 Frank G. Prantil, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Arnold O. Overoye, Assistant Attorneys Ge...
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Opinion This appeal is from a judgment terminating the parental rights of Julie M. to her son Steven H. The appeal asserts the judgment must be reversed because the Orange County Social Services Agency (SSA) failed to comply with the requirement of Welfare and Institutions Code section 366.23, subdivision (b)(5)(B),1 that notice of the termination hearing be served on Steven’s grandparents. We is...
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Opinion May a realtor who is sued for negligent nondisclosure of defects in real property obtain equitable indemnity from a home inspection company that allegedly breached its duty to the purchaser to discover and *1113 disclose the same defects? Yes. May that same realtor seek equitable indemnity when the home inspection company prepared its report for a different prospectiv...
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103 Cal. Rptr. 2d 662 (2001) 24 Cal. 4th 930 16 P.3d 85 STATE COMPENSATION INSURANCE FUND, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Schaefer Ambulance Service, Inc., et al., Real Parties in Interest. No. S082133. Supreme Court of California. February 1, 2001. Rehearing Denied March 21, 2001. *663 Richard A. Krimen, Charles W. Savage, San Francisco, Jody A. Hale; Sonnenschei...
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103 Cal.Rptr.2d 672 (2001) 24 Cal.4th 945 16 P.3d 94 CERTAIN UNDERWRITERS AT LLOYD'S OF LONDON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Powerine Oil Company, Inc., et al., Real Parties in Interest. No. S084057. Supreme Court of California. February 1, 2001. Rehearing Denied April 18, 2001.[*] *673 Hancock, Rothert & Bunshoft, Patrick A. Cathcart, Los Angel...
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Gerardo Parga-Rosas appeals from his conviction and sentence for being a deported alien “found in” the United States in violation of 8 U.S.C. § 1326, contending among other things that an indictment charging this offense is fatally defective unless it alleges that the defendant voluntarily entered the United States following his deportation. We conclude that an indictment which charges all statut...
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Plaintiff-Appellant Horace Oxendine (“Oxendine”) filed a lawsuit pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), on June 30, 1999, alleging that health care professionals (and various others who were later dismissed from the lawsuit 1 ) at the Federal Correctional Institute (“FCI”) in Fl...
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Petitioner-appellant Gregory Dale English appeals from the district court’s order denying his petition for a writ of habe-as corpus. This matter comes before us on English’s request for a certificate of appealability (COA). 1 This case was filed in district court prior to the AEDPA amendments to 28 U.S.C. § 2254. For this reason, we apply the pre-AEDPA version of that statute to English’s cla...
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103 Cal. Rptr. 2d 882 (2001) 86 Cal. App. 4th 1097 John DONNELLAN, Plaintiff and Appellant, v. CITY OF NOVATO et al., Defendants and Respondents. No. A090263. Court of Appeal, First District, Division Five. February 1, 2001. *883 Law Offices of William L. Williams, Jr. and William L. Williams, Jr., Counsel for Plaintiff/Appellant John Donnellan. Walter & Pistole, Jeffrey A. Walter and Veronic...
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Petitioners appeal the district court’s dismissal of their habeas corpus petition for lack of subject matter jurisdiction. Although we hold that we do have jurisdiction under 28 U.S.C. § 2241, we dismiss because Petitioners fail to state a claim upon which relief can be granted. I. Background A. Factual Background 1. Petitioners Mario and Judith Aguil-era On January 26, 1995...
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Opinion Presiding Justice Harold G. Clarke of the Georgia Supreme Court observed that “[t]he law gives the towing company a great advantage over the owner of the towed car, and creates a great potential for unfair business practices and abuse of the public.” (Porter v. City of Atlanta (1989) 259 Ga. 526, 528 [384 S.E.2d 631, 634].) While that observation was made 11 ...
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Conoco appeals the district court’s decision to submit a series of grievances filed *1301 by the plaintiffs, the Oil, Chemical & Atomic Workers International Union (AFL-CIO) and its Local 5 857 (the union) to arbitration. After staying the instant action pending the completion of arbitration, the district court issued an order explaining that it had not yet made a dispos...
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After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a)(2); 10th Cir.R. 34.1(G). The case is therefore ordered submitted without oral argument. Defendant-Appellant C.O. McDowall appeals the district court’s ruling denying her qualified immunity i...
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Opinion by Judge REINHARDT; Dissent by Judge SILVERMAN Defendant-Appellant Elizabeth Castaneda appeals the sentence imposed following her guilty plea to one count of transportation of persons for illegal sexual activity in violation of the Mann Act, 18 U.S.C. § 2421. Castaneda contests the district court’s imposition of a two-level “vulnerable victim” enhancement under § 3Al.l(b) of the Sentencin...
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Appellee, Rachel Allen, was injured when she was struck by boxes of merchandise while shopping at a store operated by Appellant, Wal-Mart Stores, Inc. (“Wal-Mart”). Allen claimed her injuries were caused by Wal-Mart’s negligence and she sought damages for medical expenses, pain and suffering, and loss of enjoyment of life. A jury returned a general verdict awarding Allen $40,000 and judgment was ...
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ORDER The opinion filed on October 2, 2000 is redesignated as a memorandum....
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241 F.3d 652 (9th Cir. 2001) JAMES S. SCOTT, Director of the Thirty-Second Region of the National Labor Relations Board, for and on behalf of the NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellant,v.STEPHEN DUNN & ASSOCIATES, Respondent-Appellee. No. 00-15416 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 3, 2000Filed February 2, 2001 ...
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Driving while drunk, defendant Juan Jose Sanchez struck another car, killing its passenger. For killing one person, he was convicted of two counts of homicide: one count of second degree murder (Pen. Code, § 187)1 and one count of gross vehicular manslaughter while intoxicated (§ 191.5, subd. (a)). The majority affirms both convictions. I would not. A defendant may not be convicted of two crimes w...
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103 Cal.Rptr.2d 890 (2001) 86 Cal.App.4th 1126 The PEOPLE, Plaintiff and Appellant, v. Rockland Faber RIGGS, Defendant and Appellant. No. C029575. Court of Appeal, Third District. February 2, 2001. Daniel E. Lungren, Attorney General, George H. Williamson, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, Harry Joseph Colombo, Supervising Deputy Attorney Gen...
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Mohammad Tavakkoly was convicted of conspiracy to sell heroin and opium while on pretrial release in another federal drug case. The district court sentenced him to a prison term of 126 months — 120 months for the drug offenses and six more for committing them while on pretrial release. Tavakkoly presses several claims of error in his trial and he challenges the district court’s application of the...
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We must decide whether an Internal Revenue Service summons issued at the request of French tax authorities under the terms of the United States-Franee Income Tax Treaty may be enforced in federal court. I Appellants Lidas, Inc. (“Lidas”) and David and Liliane Chelala (the “Chelalas”) appeal the district court’s dismissal on summary judgment of their complaint to quash, and its order s...
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I. In these consolidated appeals, we are asked to decide whether the district court erred when it dismissed these actions for lack of personal jurisdiction and improper venue. We review the district court’s dismissals de novo. See Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1319-20 (9th Cir.1998) (personal jurisdiction); Passantino v. Johnson & Johnson Consumer Prods...
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241 F.3d 674 (9th Cir. 2001) ANNE CANTRELL, an individual; LOU ANNA DENISON, an individual; KENNETH N. LARKEY, an individual; COLLETTE MARIE MCLAUGHLIN, an individual; RICHARD C. MCLAUGHLIN, an individual; BILLIE C. SCHAEFFER, an individual; GLEN UNDERHILL, an individual; MARGHERITA UNDERHILL, an individual, Plaintiffs-Appellants,v.CITY OF LONG BEACH; CITY OF LONG BEACH, acting by and through ...
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ORDER The opinion filed on May 8, 2000, as Montclair Parkowners Association v. City of Montclair, 211 F.3d 1144 (9th Cir.2000), is hereby WITHDRAWN and cannot be cited as precedent. Submission of this case is vacated pending resolution by the en banc court of Green v. City of Tucson, 234 F.3d 493 (9th Cir.2000). ...
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103 Cal. Rptr. 2d 901 (2001) 86 Cal. App. 4th 1144 Celeste DELLA ZOPPA, Plaintiff and Appellant, v. Joseph DELLA ZOPPA, Defendant and Respondent. No. A090260. Court of Appeal, First District, Division Two. February 5, 2001. *902 Law Offices of Brian D. Thiessen, Brian D. Thiessen, Alamo; Filice Law Offices and Gerald W. Filice, Sacramento, for Appellant. Fershko, Lewis & Blevans, LLP, Robert ...
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104 Cal. Rptr. 2d 108 (2001) 86 Cal. App. 4th 1176 In re Aaron COLLINS, on Habeas Corpus. No. A090799. Court of Appeal, First District, Division One. February 6, 2001. Rehearing Denied March 8, 2001. Review Denied May 23, 2001.[*] *109 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Paul D. Gifford, Senior Assistant Attorney General, Frances T. Grander, Superv...
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Opinion Where a defendant who is strictly liable for a plaintiff’s injury settles with the plaintiff and with various other joint tortfeasors and then pursues an equitable indemnity claim against a nonsettling joint tortfeasor, is the nonsettlor jointly and severally liable for the amount paid by the defendant to the plaintiff? In this case we answer this question in the negative, based on the co...
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Opinion This is an appeal by Tracor Flight Systems, Inc., the defendant below, after judgment was entered against it in an action for wrongful termination of employment. We affirm the judgment. Facts We view the evidence in the light most favorable to the party who prevailed in the trial court, resolving in that party’s favor all issues of credibility and all inferences from the...
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OPINION INTRODUCTION The chapter 7 trustee moved the bankruptcy court to abstain from hearing an action against the former trustee which had been recently filed in state court but had not been removed to bankruptcy court. The bankruptcy court determined that the claim was a core matter, and exercised its discretion to deny the motion. Finding that the bankruptcy court lacked ...
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OPINION Appellee Sans Souci Limited Partnership (“Sans Souci”) sued debtor Richard E. Tobin (“Tobin”), his father Harold Tobin, The Cottages III, Inc., and other defendants in state court on several counts. The state court awarded Sans Souci judgment on breach of contract, intentional misrepresentation, promissory fraud, negligent misrepresentation and concealment, on the theory that the ...
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OPINION After Etsuko Tsurukawa (“Debtor”) filed a chapter 7 1 petition, Nikon Precision, Inc. (“Nikon”) filed a complaint to determine dischargeability of debt under §§ 523(a)(2)(A), (a)(4), and (a)(6) (the “Complaint”). After a trial, a judgment was entered holding the debt nondis-chargeable under § 523(a) (the “Judgment”), and Debtor timely appealed. We REVERSE and R...
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238 F.3d 1090 (9th Cir. 2001) WESTERN STATES MEDICAL CENTER, a Nevada corporation; WOMEN'S INTERNATIONAL PHARMACY, a Wisconsin corporation; HEALTH PHARMACY, a Wisconsin corporation; APOTHECURE, a Texas corporation; COLLEGE PHARMACY, a Colorado corporation; LAKESIDE PHARMACY, a Tennessee corporation; WEDGEWOOD VILLAGE PHARMACY, a New Jersey corporation, Plaintiffs-Appellees,v.DONNA E. SHALALA,...
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Appellee Rory Dean Hunt filed for bankruptcy and Appellant First Card commenced an adversary proceeding to have Hunt’s debt to First Card declared nondis-chargeable under 11 U.S.C. § 523(a)(2)(A) on the ground of actual fraud. After a brief trial, the bankruptcy court entered judgment for Hunt, and that decision was not appealed. The bankruptcy court subsequently granted Hunt’s motion for attor...
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We consider the circumstances in which a criminal defendant is entitled to a hearing to determine his competency to stand trial. I James Richard Odie was tried and convicted in 1983 of two first degree murders and sentenced to death. He unsuccessfully exhausted his state court remedies and filed a federal habeas petition raising fifty-six claims. After protracted proceeding...
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Prison Legal News (“Publisher”), publisher of a non-profit newsletter, and prisoners Michael Tucker, Mark Wilson and Hung Le (“Prisoners”) appeal the district court’s grant of summary judgment on their 42 U.S.C. § 1983 claims in favor of defendant officials (“Officials”) of the Oregon Department of Corrections (“the Department”). We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and re...
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Amado Miranda sought judicial review by the district court of a final order of removal, invoking 28 U.S.C. § 2241 (habe-as corpus) and 28 U.S.C. § 1331 (federal question) as alternative grounds for jurisdiction. The district court dismissed Miranda’s case for lack of jurisdiction, finding that recent changes in immigration law precluded judicial review of his claims. We must determine whether the...
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241 F.3d 684 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JUVENILE MALE (KENNETH C.),Defendant-Appellant. No. 00-50179 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 16, 2000Filed February 7, 2001 Leslie S. Daniels, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant. Mark P. Edelm...
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238 F.3d 1123 (9th Cir. 2001) JUAN LLAMAS, PLAINTIFF-APPELLANT,v.BUTTE COMMUNITY COLLEGE DISTRICT, THE BOARD OF TRUSTEES OF THE COMMUNITY COLLEGE DISTRICT, GREG STEVENS, BETTY M. DEAN, MARTHA WESTCOAT-ANDES, DEFENDANTS-APPELLEES. No. 99-16325 U.S. Court of Appeals, Ninth Circuit Argued and Submitted December 14, 2000February 07, 2001 [Copyrighted Material Omitted] ...
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Rex Henley, Rafael Bustamante, Willie McGowan, and Garey West appeal their *1112 convictions for conspiracy to possess and distribute twelve kilograms of cocaine, in violation of 21 U.S.C. § 846, and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1). They also appeal the denial of their motion for a new trial based on allegations of juror bias and ...
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Opinion by Judge O’SCANNLAIN; Dissent by Judge BETTY B. FLETCHER. We must decide whether a public employee has qualified immunity from suit for allegedly retaliating against subordinates who accused him of illegally using federal money. I The Sacramento City Unified School District (“District”) has a total kindergarten through twelfth grade enrollment of approximately 50,000 students. Defendant J...
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104 Cal. Rptr. 2d 66 (2001) 86 Cal. App. 4th 1225 The PEOPLE ex rel. DEPARTMENT OF TRANSPORTATION, Plaintiff and Respondent, v. Nano MALDONADO, Defendant and Appellant. No. A089538. Court of Appeal, First District, Division Five. January 10, 2001. Rehearing Denied February 1, 2001. Review Denied March 28, 2001. *67 Terry J. Traktman, Novate, for defendant and appellant. Breland C. Gowan, David Go...
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104 Cal.Rptr.2d 131 (2001) 86 Cal.App.4th 1296 Charles Darnell CHERRY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; The People, Real Party in Interest. No. B144293. Court of Appeal, Second District, Division Four. February 7, 2001. Review Denied May 2, 2001.[*] Certiorari Denied October 1, 2001. *132 Michael P. Judge, Public Defender of Los Angeles County, Albert J. Menast...
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Opinion A mentally retarded person who is a danger to himself or to others may be committed to the State Department of Developmental Services under Welfare and Institutions Code section 6500. 1 Here we conclude such commitment is proper without proving that mental retardation was a cause of the dangerous condition. Defendant Willie Quinn appeals an order of commitment to Atascadero State ...
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I agree with much of the majority’s analysis, but disagree with the result. In the context of an attorney-client relationship, the doctrine of imputed knowledge is a product of public policy and pragmatism. As a matter of public policy, it is presumed that an attorney has knowledge of confidential information adverse to the opposing party in a lawsuit when the former representation of that party b...
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Opinion A jury convicted defendant Thang Van Bui of vehicular manslaughter while driving under the influence of a drug and making an unsafe lane change (Pen. Code, § 192, subd. (c)(3); Veh. Code, §§ 21658, subd. (a), 23152), and he was sentenced to state prison for the lower term of one year and four months. On appeal, defendant contends the trial court erred in admitting expert testimony ind...
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104 Cal. Rptr. 2d 173 (2001) 86 Cal. App. 4th 1309 ZILOG, INC., Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent; Pacific Indemnity Company et al., Real Parties in Interest. No. H021144. Court of Appeal, Sixth District. February 7, 2001. Rehearing Denied February 28, 2001. *175 Pillsbury Winthrop, Stephen Stublarec, John M. Grenfell, Brent W. Brougher, Margaret S. Schroeder, Sa...
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103 Cal.Rptr.2d 751 (2001) 24 Cal.4th 1057 16 P.3d 166 Wilson CURLE, a Judge of the Superior Court, Petitioner, v. The SUPERIOR COURT of Shasta County, Respondent; Andrew Madison Gleason et al. Real Parties in Interest. No. S080322. Supreme Court of California. February 8, 2001. *752 Karen Keating Jahr, County Counsel, and John L. Loomis, Deputy County Counsel, for Petitioner. No appearance for R...
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Opinion We granted review in this cause in order to settle an important issue arising under what is popularly, and singularly, known as the “Three *1075Strikes” law, a pair of statutes that are identical in part pertinent here, one enacted from a bill introduced in the Legislature (Stats. 1994, ch. 12, § 1, pp. 71-75, adding Pen. Code, § 667, subds. (b)-(i)), the other enacted from an initiative m...
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Andre L. Taylor appeals his conviction of four counts of transportation of a minor for the purposes of prostitution under 18 U.S.C. § 2423(a), and of two counts of money laundering under 18 U.S.C. §§ 1957 and 1956(a)(l)(A)(i). The main issue that this circuit has not yet addressed is whether conviction under 18 U.S.C. § 2423(a)(transportation of a minor for purposes of prostitution or commission ...
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This is another appeal arising out of the verdict and judgment of five billion dollars in punitive damages against Exxon Corporation following the disastrous 1989 Exxon Valdez oil spill into Prince William Sound, Alaska. As in an earlier appeal, we here consider whether some of the plaintiffs who settled with Exxon before certification of the mandatory punitive damages class are entitled to sha...
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We must decide whether, as a matter of law, a district court has authority under its inherent power to impose sanctions when an attorney has made reckless misstatements of law and fact, and has done so for an improper purpose. We conclude that it does have the authority and thus reverse and remand so that the district court may exercise its discretion to determine whether sanctions are appropri...
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241 F.3d 690 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JOHN LAKATOS, Defendant-Appellant. No. 00-50079 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 8, 2001Filed February 8, 2001 Richard Novak, Office of the Federal Public Defender, Los Angeles, California, for the defendant-appellant. Michael J. Raphael, Uni...
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ORDER This court’s opinion, filed August 30, 1999 is hereby amended. The amended opinion is filed simultaneously with this order. The panel has voted to deny the petition for rehearing filed September 13, 1999. Judges Fernandez and W. Fletcher have voted to deny the petition for rehearing en banc and Judge D.W. Nelson so recommends. The full court has been advised of the petition...
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103 Cal.Rptr.2d 919 (2001) 86 Cal.App.4th 1382 The PEOPLE, Plaintiff and Respondent, v. Kenneth Wayne CARLISLE, Defendant and Appellant. No. B137310. Court of Appeal, Second District, Division Five. February 8, 2001. Sharon L. Rhodes, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney Genera...
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104 Cal. Rptr. 2d 197 (2001) 86 Cal. App. 4th 1366 Marcia SPIELHOLZ et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles Cellular Telephone Company et al., Real Parties in Interest. No. B131655. Court of Appeal, Second District, Division Three. February 8, 2001. Review Denied May 23, 2001.[*] *199 Lieff, Cabraser, Heimann & Bernstein, Elizabeth J. Cabraser...
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104 Cal. Rptr. 2d 183 (2001) 86 Cal. App. 4th 1346 Lawrence BAME, Plaintiff and Appellant, v. CITY OF DEL MAR, Defendant and Respondent. City of Del Mar, Plaintiff and Respondent, v. 22nd District Agricultural Association, Defendant and Appellant. Nos. D034206, D034354. Court of Appeal, Fourth District, Division One. February 8, 2001. *186 Alexandra M. Kowka, for Plaintiff and Appellant. Bill Loc...
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239 F.3d 1096 (9th Cir. 2001) HOWARD WILLIAM FLOWERS, Petitioner-Appellant,v.KAY WALTER, Respondent-Appellee. No. 99-35552 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 6, 2000Filed February 9, 2001 1 NOTE: THIS OPINION HAS BEEN WITHDRAWN. ...
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239 F.3d 1000 (9th Cir. 2001) PACIFIC FISHERIES CORPORATION, a California corporation, Plaintiff-Appellant,v.HIH CASUALTY & GENERAL INSURANCE, LTD.; HIH MARINE INSURANCE SERVICES, INC.; HARLOCK WILLIAMS LEMON, LTD., a corporation, Defendants-Appellees. No. 99-16209 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 15, 2000Filed February 9, 2001 ...
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Opinion An insured purchased a homeowners policy containing an exclusion for bodily injury that is “a foreseeable result of an intentional or criminal act of any insured . . . .” During a disturbance at a party, the insured, holding a gun, chased a group of youths from his backyard and fired the gun to frighten them. The bullet struck James Glenn as he fled. The insured pleaded guilty to felony...
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Creditor Ganis Credit Corp. (Ganis) held liens on recreational vehicles (R.V.s) that had been traded in to debtor Jan Weilert R.V., Inc. (debtor), an R.V. dealer. The chapter 71 trustee sought to recover two payments debtor made to Ganis totaling $48,304.59 as preferential transfers under 547(b). The bankruptcy court rejected Ganis’s ordinary course of business defense under § 547(c)(2) and entere...
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239 F.3d 1108 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.THEODORE JOHN KACZYNSKI, Defendant-Appellant. No. 99-16531 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted October 3, 20001Filed February 12, 2001 [Copyrighted Material Omitted] Theodore John Kaczynski, pro per, Florence, Colorado, defendant-appellant. Robert J. Cleary...
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Plaintiffs are engaged in the commercial recording, distribution and sale of copy *1011 righted musical compositions and sound recordings. The complaint alleges that Napster, Inc. (“Napster”) is a contributory and vicarious copyright infringer. On July 26, 2000, the district court granted plaintiffs’ motion for a preliminary injunction. The injunction was slightly modified by writt...
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Carolyn Humphrey brought suit against her former employer, Memorial Hospitals Association (MHA), under the Americans with Disabilities Act (ADA) and its California counterpart, the Fair Employment and Housing Act (FEHA) for failure to reasonably accommodate her disability and wrongful termination. We reverse the district court’s grant of summary judgment in favor of MHA. I. BACKGROUND Humphre...
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This case, which arises from a trademark dispute over the use of the term “Fire-Safe,” was precipitated by the U.S. Customs Service’s detention of imported safes bearing that mark. Stuhlbarg International Sales Co., known as Sisco, brought a suit for declaratory judgment and cancellation of the “Fire-Safe” trademark owned by John D. Brush & Co. The district court granted Sisco’s request for a p...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. . Judge Wardlaw was recused. ...
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Opinion Business and Professions Code section 7031 bars unlicensed contractors from bringing suit to recover compensation for work requiring a license. In this case, we hold that an unlicensed contractor may pursue an action under 42 United States Code section 1981 for racial discrimination during the performance of his contract, but may not seek damages for the defendant’s failure to pay...
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In this appeal, we consider, inter alia, the proper venue for a suit to enjoin an arbitration. Under the circumstances presented by this case, we conclude that the Federal Arbitration Act does not require venue in the contractually-designated arbitration locale. I Textile Unlimited, Inc. (“Textile”) claims that A..BMH and Company, Inc. (“A..BMH”) is, in the parlance of the ...
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240 F.3d 754 (9th Cir. 2001) MARY SANDERS LEE, individually and as the Conservator for the Estate of KERRY SANDERS; KERRY SANDERS, Plaintiff-Appellants,v.COUNTY OF LOS ANGELES; CITY OF LOS ANGELES; STAN EFRON; A. HADDOCK, Officer, #25553; MCCALLESTER, Detective, #233680; HOLMSTROM, Detective, #320622; NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, Defendants-Appellees. No. 98-55807 UNIT...
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ORDER We certify to the California Supreme Court the question set forth in Part III of this order. We stay further proceedings in this court pending receipt of the answer to the certified question. This case is withdrawn from submission until further order of this court or the order declining to accept the certified question. If the California Supreme Court accepts the certified quest...
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239 F.3d 1033 (9th Cir. 2001) CITY OF LOS ANGELES; LOS ANGELES WORLD AIRPORTS; LOS ANGELES BOARD OF AIRPORTS COMMISSIONERS, Petitioners,v.U.S. FEDERAL AVIATION ADMINISTRATION; JANE F. GARVEY, Administrator of the Federal Aviation Administration; SUSAN L. KURLAND, Associate Administrator for Airports, Respondents. No. 99-70452 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Arg...
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Opinion Plaintiffs and appellants Lee Newman, M.D., Inc., a Medical Corporation and Lee Newman, M.D., Inc., a Medical Corporation doing business as Beverly Hills Medical Clinic (Newman) appeal from a judgment of dismissal entered after the trial court sustained without leave to amend the demurrer of defendant and respondent Wells Fargo Bank, N.A. (Wells Fargo) to the two causes of action pleade...
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Opinion Defendant and appellant Amwest Surety Insurance Company (Amwest) appeals the trial court’s order denying its renewed motion to set aside summary judgment on a bail bond forfeiture.1 We affirm the judgment. Facts Sanchez Bail Bonds (Sanchez) posted a bail bond in the amount of $5,000 on February 2, 1999, for the release of defendant Jonathan Avila Garcia in People v. Garcia, Riverside Super...
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104 Cal.Rptr.2d 53 (2001) 24 Cal.4th 1089 16 P.3d 717 VENTURA GROUP VENTURES, INC., Plaintiff and Appellants. v. VENTURA PORT DISTRICT et al., Defendants and Respondents. No. S080112. Supreme Court of California. February 15, 2001. Rehearing Denied March 28, 2001. *55 Heily & Blase, John R. Johnson, Compton, and Carol J. Covington, Ventura, for Plaintiff and Appellant. James L. McBride, Coun...
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Patrick Catalano, an attorney, leased three boats to a corporation organized under subchapter S of the Internal Revenue Code. See 26 U.S.C. §§ 1361-79. He was the sole shareholder and used the boats to entertain clients. The corporation deducted the lease payments on its federal corporate income tax returns, so that the deductions reduced the corporate income that was passed through ...
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We consider in this appeal whether discharging a firearm in violation of California Penal Code § 246.3 is a deportable firearms offense pursuant to 8 U.S.C. § 1227. We conclude that it is, and dismiss Vaierio-Ochoa’s petition for review for lack of jurisdiction pursuant to IIRIRA § 309(c)(4)(G). I Jose Valerio-Ochoa is a thirty-two-year-old native and citizen of Mexico, and a lawful p...
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Randy Gean Ellis (“Ellis”) appeals his sentence after conviction for failing to appear at sentencing, in violation of 18 U.S.C. § 3146(a)(1); assaulting a federal officer, in violation of 18 U.S.C. § 111(a)(1); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Ellis contends that the district court made several mistakes during sentencing. First, Ellis contends...
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241 F.3d 1067 (9th Cir. 2001) JANETTE HOPPER, and SHARON RUPP, Plaintiffs-Appellants,v.CITY OF PASCO, and ARTS COUNCIL OF THE MID-COLUMBIA REGION, Defendants-Appellees. No. 98-35795 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 9, 2000Filed February 15, 2001 [Copyrighted Material Omitted] COUNSEL: Paul J. Lawrence, Preston, Gates &...
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Opinion Introduction A jury convicted Calvin Crowe of second degree murder (Pen. Code, §§ 187, 189)1 and being a felon in possession of a firearm (§ 12021, subd. (a)(1)). The jury found true the sentencing enhancements that defendant personally and intentionally discharged a firearm, killing the victim (§ 12022.53), and that he personally used a firearm (§ 12022.5, subd. (a)(1)). *89In a separate ...
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531 U.S. 288 (2001) BRENTWOOD ACADEMY v. TENNESSEE SECONDARY SCHOOL ATHLETIC ASSOCIATION et al. No. 99-901. United States Supreme Court. Argued October 11, 2000. Decided February 20, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *289 *290 Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed ...
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531 U.S. 316 (2001) DIRECTOR OF REVENUE OF MISSOURI v. COBANK ACB, as successor to the NATIONAL BANK FOR COOPERATIVES No. 99-1792. United States Supreme Court. Argued November 28, 2000. Decided February 20, 2001. CERTIORARI TO THE SUPREME COURT OF MISSOURI *317 Thomas, J., delivered the opinion for a unanimous Court. James R. Layton, State Solicitor of Missouri, argued the cause for petitioner. W...
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C. A. Fed. Cir. Certiorari granted....
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C. A. 5th Cir. Certiorari granted....
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C. A. Fed. Cir. Certiorari granted. Justice O’Connor took no part in the consideration or decision of this petition....
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Opinion Defendant United Food and Commercial Workers Union, Local 588 (Union) appeals from an order granting a preliminary injunction restricting the Union’s picketing activity at the retail store of plaintiff Waremart Foods doing business as WinCo Foods (Waremart). 1 The Union originally contended the injunction was unwarranted and overbroad *148 under Code of Civ...
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Opinion I. Introduction Penal Code section 667.61,1 commonly known as the “One Strike” law (People v. Rayford (1994) 9 Cal.4th 1, 8 [36 Cal.Rptr.2d 317, 884 P.2d 1369]), mandates indeterminate life terms for those who, among other things, commit a rape “during the commission of a burglary.” (§ 667.61, subds. (b) & (e)(2).)2 In this case, we hold that the phrase “during the commission of a burglar...
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240 F.3d 845 (9th Cir. 2001) DONNELL JEFFERS, Plaintiff-Appellee,v.JAMES GOMEZ, Director, California Department of Corrections; THEO WHITE, Warden, California State Prison at Sacramento; SAM BESS, Correctional Officer at California State Prison at Sacramento; MARGARET YERBY, Correctional Officer at California State Prison at Sacramento, Defendants-Appellants. Nos. 99-15867 99-15868 99-1586...
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Victor Bazuaye appeals his conviction for money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)®, and the district court’s decision to deny a sentence reduction for acceptance of responsibility. Ba-zuaye argues (1) a rational trier of fact could not have concluded from the stipulated facts that the money laundering transaction at issue affected interstate commerce, and (2) the district cour...
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531 U.S. 425 (2001) CENTRAL GREEN CO. v. UNITED STATES No. 99-859. United States Supreme Court. Argued October 30, 2000. Decided February 21, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *427 Stevens, J., delivered the opinion for a unanimous Court. Timothy Jones argued the cause for petitioner. With him on the briefs were Thomas C. Goldstein, W. Allen Bennett, an...
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531 U.S. 356 (2001) BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA et al. v. GARRETT et al. No. 99-1240. United States Supreme Court. Argued October 11, 2000. Decided February 21, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT *358 *358 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Kennedy, J., f...
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delivered the opinion of the Court. This case concerns a seaman’s ability to sue a vessel owner in state court for personal injuries sustained aboard a vessel. Federal courts have exclusive jurisdiction over admiralty and maritime claims, but the jurisdictional statute “sav[es] to suitors in all cases all other remedies to which they are otherwise entitled.” 28 U. S. C. § 1333(1). Another ...
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531 U.S. 341 (2001) BUCKMAN CO. v. PLAINTIFFS' LEGAL COMMITTEE No. 98-1768. United States Supreme Court. Argued December 4, 2000. Decided February 21, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT *343 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Stevens, J., filed an opinion con...
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241 F.3d 765 (9th Cir. 2001) ALFRED ARTHUR SANDOVAL, Petitioner-Appellee,v.ARTHUR CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellant.ALFRED ARTHUR SANDOVAL, Petitioner-Appellant,v.ARTHUR CALDERON, Warden of the California State Prison at San Quentin, Respondent-Appellee. No. 99-99010, 99-99013 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT A...
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Overview This case involves the use of facsimile transmissions to effectuate the fraudulent sale of used helicopter rotor blades. Appellant, Ron Dean Garlick, was convicted of two counts of wire fraud under 18 U.S.C. § 1343. Count I of the indictment was based on a fax transmission Garlick sent to a prospective buyer in which he misrepresented the age of the blades. Count II was based on a fa...
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241 F.3d 696 (9th Cir. 2001) ASSOCIATION OF WASHINGTON PUBLIC HOSPITAL DISTRICTS, a Washington unincorporated association; ADAMS COUNTY PUBLIC HOSPITAL DISTRICT NO. 2; ADAMS COUNTY PUBLIC HOSPITAL DISTRICT NO. 3; AFFILIATED HEALTH SERVICES, a general partnership of Skagit County Public Hospital District No. 1 and Skagit & Whatcom Counties Public Hospital District No. 304; CHELAN COUNTY PUB...
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241 F.3d 707 (9th Cir. 2001) LINDA N. VOOHRIES-LARSON, surviving mother of Torrence Justin Voohries; BETSY KEILEN, surviving mother of Brad Keilen; CHARLENE TOWNSEND, surviving mother of Ronald Sean Townsend, Plaintiffs-Appellants,v.CESSNA AIRCRAFT CO., Defendant-Appellee,andBLACK CORPORATIONS; JOHN DOES; JANE DOES, Defendants. No. 99-15916 UNITED STATES COURT OF APPEALS FOR THE NINTH ...
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241 F.3d 722 (9th Cir. 2001) NATIONAL PARKS & CONSERVATION ASSOCIATION, Plaintiff-Appellant-Cross-Appellee,v.BRUCE BABBITT, Secretary, United States Department of the Interior; ROBERT STANTON, Director, National Park Service, Defendants-Appellees,andHOLLAND AMERICA LINE-WESTOURS, INC., Defendant-Intervenor Appellee-Cross-Appellant. Nos. 99-36065, 99-36094 UNITED STATES COURT OF APP...
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Maria Medrano appeals her sentence imposed after pleading guilty to 15 counts of embezzlement. Medrano contends the district court erred in imposing a vulnerable victim enhancement and a position of trust enhancement on her sentence. Me-drano argues that the record does not support a finding of vulnerability based on the combination of characteristics found by the district court and that the dist...
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104 Cal. Rptr. 2d 377 (2001) 24 Cal. 4th 1122 17 P.3d 735 Smith A. KETCHUM III, Plaintiff and Appellant, v. John M. MOSES, Defendant and Respondent. No. S077350. Supreme Court of California. February 26, 2001. Rehearing Denied May 16, 2001. *380 Krause & Baskin, Marshall W. Krause and Lawrence A. Baskin, San Rafael, for Plaintiff and Appellant. Bill Lockyer, Attorney General, Pamela Smith-Ste...
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Opinion Introduction Lilark W. (mother), mother of six-year-old Anthony W., four-year-old Aireal L. and two-year-old Jonathan L., appeals from the order of the juvenile court denying her motion under Welfare and Institutions Code section 3881 for a modification of an earlier order terminating reunification services. We affirm the order. Factual and Procedural Background Mother was a dependent of ...
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Opinion In making an award of backpay under Labor Code section 132a1 to an employee wrongfully denied reinstatement because of an industrial injury, may the Workers’ Compensation Appeals Board (WCAB) include prejudgment interest on the lost wages so awarded? Harmonizing the Civil Code’s mandate of entitlement to prejudgment interest on damages due on a particular day (Civ. Code, § 3287, subd. (a)...
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Opinion Penal Code section 629.50 permits a law enforcement agency to obtain an order authorizing the interception of wire, electronic digital pager, or electronic cellular telephone communications (wiretap) 1 under certain limited circumstances. The application for a wiretap order must be made in writing “to the presiding judge of the superior court or one other judge designat...
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Green Tree Financial Corp.-Ala. v. Randolph, ante, p. 79....
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C. A. D. C. Cir. Certiorari in No. 00-568 granted limited to Question 1 presented by the petition. Certiorari in No. 00-809 granted. Cases consolidated, and a total of one hour allotted for oral argument. Reported below: 225 F. 8d 667....
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241 F.3d 1242 (9th Cir. 2001) RICHARD SHAWN WILCOX, PETITIONER-APPELLANT,v.MICHAEL MCGEE, SUPERINTENDENT, COLUMBIA RIVER CORRECTIONAL INSTITUTION, RESPONDENT-APPELLEE. No. 99-35566 U.S. Court of Appeals, Ninth Circuit Argued and Submitted September 13, 2000Filed February 27, 2001 William S. LaBahn, Eugene, Oregon, argued the cause for Appellant. Jennifer S. Lloyd, ...
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*367 Opinion In 1991 appellant Richard Van Ness purchased health insurance from respondent Blue Cross of California under its prudent buyer program. That program established a two-tiered benefit schedule—the negotiated fee schedule for participating providers and the limited fee schedule for nonparticipating providers. Benefits under the negotiated fee schedule were greater becau...
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Opinion Defendant and appellant Mario A. Nicastro (Nicastro) appeals an order denying attorney fees and costs after Nicastro prevailed in an arbitration brought by plaintiff and respondent Carole Ring & Associates (Ring). Nicastro seeks attorney fees and costs he incurred at the arbitration level as well as attorney fees and costs incurred in postarbitration judicial proceedings. The...
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Opinion Introduction Petitioners, 1 African-American shoppers who claim they were beaten by security guards, sued the individual guards, 2 the guards’ employer IPC International Corporation (IPC), and others, alleging various tort causes of action. Petitioners noticed the depositions of the individual guard defendants. Fearing criminal prosecution arising from t...
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*314Opinion Introduction In a proceeding to commit Gary Briggs as a sexually violent predator pursuant to Welfare and Institutions Code section 6600 et seq., the People filed an affidavit of prejudice under Code of Civil Procedure section 170.6 to disqualify Judge Harold E. Shabo. The affidavit was not timely filed, because Judge Shabo had already conducted hearings on Briggs’s motion to exclude ...
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*322 Opinion The Los Angeles County Department of Children and Family Services (DCFS), petitions for an extraordinary writ of mandate directing the trial court to vacate its order that a minor, Jaime M., be transported to MacLaren Children’s Center. DCFS asserts that MacLaren is a nonsecure facility designed to house children detained pursuant to Welfare and Institutions Code section 300, 1 ...
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104 Cal.Rptr.2d 641 (2001) 87 Cal.App.4th 263 The PEOPLE, Plaintiff and Respondent, v. Leo CLEVELAND, Defendant and Appellant. No. B139266. Court of Appeal, Second District, Division Seven. February 27, 2001. Review Denied May 23, 2001.[*] *642 Stephen Temko, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant A...
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*331 Opinion I. Introduction The California Supreme Court has ruled that for a trial court to depart from the sentencing scheme of the “Three Strikes” law, 1 “the defendant [must] be deemed [to be] outside the scheme’s spirit, in whole or in part,” in light of “the particulars of his background, character, and prospects” and the nature and circumstances of his pre...
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Opinion this appeal, we will hold that Penal Code section 1237.1— which precludes a criminal defendant from raising an error in the calculation of presentence custody credits, at least as the sole issue on appeal, if he or she has not previously raised the error in the trial court—does not apply to juvenile appeals. I Procedural Background In a petition filed on November 13, 1998, Antwon ...
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241 F.3d 755 (9th Cir. 2001) ELIZABETH A. KELLY, individually and as Personal Representative of the Estate of Robert Eugene Kelly; MICHAEL KELLY; KENNETH KELLY; ANNE MARIE KELLY, Plaintiffs-Appellees,v.UNITED STATES OF AMERICA, Defendant-Appellant.ROCKEY R. LYNN, Personal Representative of the Estate of Randy Clifford Lynn, Deceased, on Behalf of the Estate; DENISE LYNN WARNKEN; CONNIE LYNN GO...
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Appellants Robert Panaro and Stephen Cino, both having ties to organized crime families, were charged with various criminal acts, including crimes related to the murder and extortion of Herbie Blitzstein, a person also associated with organized crime. Relevant to this appeal, Panaro was convicted of one count of conspiracy to interfere with interstate commerce by extortion in violation of the H...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court,1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. . Judge Fisher was recused. ...
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Opinion In this case we consider whether a defendant seeking to stay or dismiss an action on the basis of forum non conveniens must show that all defendants are subject to jurisdiction in the proposed alternate forum. We hold that, on the facts presented here, such a showing is required. Background Appellant American Cemwood Corporation (American Cemwood) is an Oregon corpor...
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Opinion Family Code section 852, subdivision (a), provides: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” 1 The issues we address in the published portion of this opinion are: (1) whether a grant deed signed by a ...
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Opinion Health Laboratories of North America, Inc., and its officer, Marc J. Kaplan, appeal an order denying their motion pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16)1 to strike the People’s action for a permanent injunction enjoining them from making unsubstantiated advertising claims and for civil penalties for having made false or misleading advertisements. Appellants contend...
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*454Opinion In his action for damages against Bay View Bank (Bay View), Gerald Grover alleges that Bay View negligently allowed his judgment debtor to escape a levy on bank accounts when it lost the documents necessary for levy and allowed the account holder to withdraw the money in the accounts. Bay View argues that the alleged loss of the papers is irrelevant. According to Bay View, even with th...
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Opinion Hospitals, doctors and others who provide services to Medicare beneficiaries are reimbursed based in part upon annual cost reports filed by the providers to conform to the Medicare statute and a variety of federal rules and regulations. Those cost reports are at the heart of this case, in which the primary plaintiff is a union and the primary defendant is a hospital at which there...
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Opinion Introduction Plaintiff Victor M. Rodas, doing business as Victor Rodas Wood Floors, appeals from an order dismissing his complaint as to defendants David Spiegel and Spiegel Certified Restoration. We affirm the order. *516Statement of Facts1 In October 1994, plaintiff installed hardwood flooring in Laura Keddington’s (Keddington) home. On December 6, 1994, Keddington wrote a letter to the ...
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Opinion Plaintiff brought an action for breach of implied and express warranty under the Song-Beverly Consumer Warranty Act. (Civ. Code, § 1790 et seq., the Act) 1 The jury rendered a verdict in favor of plaintiff. On appeal, defendants, Ford Motor Company and South Bay Ford, Inc., argue the court’s answer to a jury question about the meaning of “substantially” constituted reversible error. W...
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Opinion Appellants Buena Vista Mines, Inc. (BVMI) and Harold J. Biaggini (its sole shareholder) sued several insurance carriers, claiming they *485 breached insurance contracts and violated the implied covenant of good faith and fair dealing by refusing to defend BVMI in a lawsuit previously brought against it in federal court. The trial court sustained demurrers filed by thr...
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Opinion In this appeal we interpret Education Code section 44922, subdivision (e).1 Section 44922 allows school districts to establish reduced workload programs (i.e., part-time schedules) for certificated employees who are at least 55 years old and who satisfy certain other conditions. We read section 44922(e) to mean that while the reduced workload employee is paid the prorated share of his ful...
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Opinion In this appeal, we decide that where a case is concluded by a settlement after trial, there is no favorable termination for purposes of pursuing a malicious prosecution action. Frank E. Ferreira sued the law firm of Gray, Cary, Ware & Freidenrich, and two of its attorneys, Duane S. Horning and L.B. Chip Edleson (together *411 Gray, Cary) for malicious prosecution...
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104 Cal. Rptr. 2d 402 (2001) 25 Cal. 4th 1 17 P.3d 758 In re Cristeta S. PAGUIRIGAN on Discipline. No. S076968. Supreme Court of California. March 1, 2001. *403 Pansky & Markle, R. Gerald Markle and Ellen A. Pansky, South Pasadena, for Petitioner Cristeta S. Paguirigan. Karpman & Associates, Diane L. Karpman and JoAnne Earls Robbins, Los Angeles, as Amici Curiae on behalf of Petitioner Cr...
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Opinion Since January 1, 1997, the Legislature has provided for summary disbarment of an attorney convicted of a felony involving moral *13turpitude. (Bus. & Prof. Code, § 6102, subd. (c); Stats. 1996, ch. 1104, § 6.) In this attorney discipline matter, we consider whether an attorney may be summarily disbarred as a result of his felony conviction for attempting to commit a form of child molestat...
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Christopher Parker appeals his conviction under 18 U.S.C. § 2113(a) and (d) and § 924(c) for conspiracy, bank robbery, and firearms charges. Parker joins co-defendant Spencer Sawyer’s argument that the district court erred in admitting a taped conversation between Sawyer and other co-conspirators, and erred in displaying a transcript of the conversation to the jury during playback of the tape. Pa...
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241 F.3d 1121 (9th Cir. 2001) In re: CROW WINTHROP OPERATING PARTNERSHIP, a Maryland general partnership, Debtor.CROW WINTHROP DEVELOPMENT LIMITED PARTNERSHIP; CROW ORANGE COUNTY MANAGEMENT COMPANY, INC., Appellants,v.JAMBOREE LLC, Appellee. No. 99-55584 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 2000Filed March 1, 2001 COUNSE...
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Defendants Denis Doráis and Laurie Gomes became the focus of a police drug investigation after a hotel manager reported suspicious activities in their room at the New Otani Hotel. Police eventually arrested Gomes for drug possession after they stopped her because of a rental agency’s report that her rental car was overdue. During the stop, Gomes consented to a search of her purse, which yielded...
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241 F.3d 1131 (9th Cir. 2001) JEANETTE DAVITON; CANDI DAVITON-SCIANDRA, Plaintiffs-Appellants,v.COLUMBIA/HCA HEALTHCARE CORPORATION, dba San Leandro Hospital, Defendant-Appellee. No. 98-16698 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Rehearing En Banc Granted June 1, 2000Argued and Submitted En Banc September 20, 2000Filed March 1, 2001 J. Kendrick Kresse, Cal...
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240 F.3d 1156 (9th Cir. 2001) SE JONG NOH, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70982 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed March 1, 2001 1 Before: Procter Hug, Jr. and David R. Thompson, Circuit Judges, and Jane A. Restani, Court of International Trade Judge.1 ORDER 2 The Respondent'...
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*594 Opinion I. Introduction Appellant Marcus Geroy McGinnis pleaded nolo contendere to residential burglary (Pen. Code, § 459) and trespass (Pen. Code, § 602, subd. (Z)). He was sentenced to a total term of six years in state prison. On appeal, he contends that the trial court erred by failing to refer him for an evaluation to determine if he should be confined at the California Rehabili...
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104 Cal.Rptr.2d 686 (2001) 87 Cal.App.4th 534 AJIDA TECHNOLOGIES, INC., Plaintiff and Respondent, v. ROOS INSTRUMENTS, INC., et al., Defendants and Appellants. No. H020311. Court of Appeal, Sixth District. March 1, 2001. Rehearing Denied March 27, 2001. Review Denied June 13, 2001.[*] *689 Michael A. Vacchio, Wendy K. Kilbride, Morgan Lewis & Bockius, for Defendants and Appellants. Kara M. An...
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240 F.3d 1215 (9th Cir. 2001) ERLINDA UBALDO CLAMOR, Plaintiff-Appellant,v.UNITED STATES OF AMERICA, Defendant-Appellee. No. 00-15124 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 14, 2000Filed March 2, 2001 COUNSEL: Richard Turbin, and Susan R. Kern, Honolulu, Hawaii, for the plaintiff-appellant. Joachim P. Cox, Office of the U...
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Opinion by Judge ALARCON; Dissent by Judge FERGUSON Scott Osenbrock (“Osenbrock”) appeals from the order affirming the decision of the Commissioner of the Social Security Administration (“Commissioner”) that denied his claim for Disability Insurance Benefits (“DIB”) under Title II of the *1159Social Security Act. Mr. Osenbrock contends that the administrative law judge’s (“ALJ”) determination that...
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This case requires us to determine the relationship between a state attorney’s fees provision and federal labor law. Specifically, we must consider whether California Civil Code section 1717, which renders reciprocal an otherwise unilateral contractual provision for attorney’s fees, is preempted by the federal Labor Management Relations Act (“LMRA”). Because an award of fees under section 1717 wou...
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C. A. 9th Cir. Certiorari granted....
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Opinion In this case, we decide whether the 1997 amendment to Penal Code section 1025, which added subdivision (c), effectively eliminated the right to a jury trial of prior conviction allegations, and if not, whether the erroneous denial of a jury trial in this context is subject to harmless error analysis on appeal. Consistent with our opinions in People v. Wiley (1995) 9 Cal.4th 580 [38 Cal.Rp...
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104 Cal.Rptr.2d 582 (2001) 25 Cal.4th 34 18 P.3d 11 The PEOPLE, Plaintiff and Respondent, v. David Hans MORALES, Defendant and Appellant. No. S059461. Supreme Court of California. March 5, 2001. Certiorari Denied October 1, 2001. *583 Richard Jay Moller, Garberville, under appointment by the Supreme Court, for Defendant and Appellant. *584 Daniel E. Lungren and Bill Lockyer, Attorneys General, Ge...
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Opinion Jeannette Franklin, now deceased, and her husband, Darrel Franklin (respondents), 1 filed an action for personal injury, premises liability and loss of consortium against several defendants, including appellant USX Corporation (USX). Respondents contended that Jeannette had contracted mesothelioma, an asbestos-caused cancer, as a result of childhood exposure to secondha...
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Opinion The convictions in this case stem from the drive-by shootings at two residences occurring within a very short time of each other. The facts are all too familiar: one of two warring gangs exacts revenge on the other in retaliation for prior gang activity and perceived slights to pride. In the published portion of this opinion we hold that substantial evidence supports eight attempt...
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Opinion by Judge BOOCHEVER; Concurrence by Judge TASHIMA; Dissent by Judge TALLMAN Angela Ruiz (“Ruiz”) appeals from the sentence imposed by the district court after she pled guilty to charges of marijuana importation. Ruiz challenges the Government’s refusal to recommend, and the district court’s denial of, a downward departure from the applicable sentencing guideline range under the “fast track”...
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Esteban Corral-Gastelum appeals his convictions for conspiracy to possess with intent to distribute marijuana, 21 U.S.C. § 846, possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(1), and use of a firearm during a drug trafficking crime, 18 U.S.C. § 924(c). We hold that the government’s evidence was insufficient as a matter of law, and we reverse and remand to the district court wi...
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241 F.3d 1148 (9th Cir. 2001) In re: MARTHA SANCHEZ, Debtor.MARTHA SANCHEZ, Appellant,v.ROBERT L. GORDON, dba Gordon and Associates, Appellee. No. 99-56225 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 13, 2000Filed March 5, 2001 Harold Shilberg, Law Offices of Harold Shilberg, San Diego, California, for the appellant. Don E. Bo...
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Petitioner-Appellee Donald Paradis was convicted in Idaho state court of the murder of Kimberly Palmer and sentenced to death, but the State later commuted his sentence to life without parole. In November 1997, this court reversed in part the district court’s dismissal of Paradis’ second federal petition for writ of habeas corpus, and remanded the case for an evi-dentiary hearing on his claims ...
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Opinion In this class action lawsuit to recover for nonpayment of overtime compensation, the defendant, Farmers Insurance Exchange (hereafter FIE), appeals an interim order awarding attorney fees, which was entered following an order granting summary adjudication in favor of plaintiffs on defendant’s fourth affirmative defense. We find no error in the decisional underpinning of the award ...
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Opinion In this action for legal malpractice, John Robin Carlson appeals from the summary judgment granted in favor of Attorney *648James E. Blatt and James E. Blatt, a professional corporation (Blatt). (Code Civ. Proc., § 437c, subd. (c).)1 Carlson claims that he was wrongfully convicted of 13 felony counts in 1988 because of Blatt’s professional negligence. We conclude that the action is time-b...
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241 F.3d 1191 (9th Cir. 2001) ROBERT DOUGLAS SMITH, Petitioner-Appellant,v.TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. No. 96-99025 96-99026 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 17, 2000Filed March 6, 2001 S. Jonathan Young, Tucson, Arizona; John F. Palumbo, Law Offices Pima County Public De...
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In 1984, Constance Graham (“Graham”) was employed as Vice-President of Investments for the Balcor Company (“Balcor”). In the middle of the year, she was diagnosed with an illness that seriously affected her job performance. After contesting a recommendation that she be terminated, she agreed with Balcor that she would waive any wrongful discharge or employment discrimination claims against the com...
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241 F.3d 1201 (9th Cir. 2001) JOE LEONARD LAMBRIGHT, Petitioner-Appellant,v.TERRY STEWART, Director, Arizona Department of Corrections, Respondent-Appellee. No. 96-99020 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 17, 2000Filed March 6, 2001 David P. Tiers, Tucson, Arizona, for the petitioner-appellant. Scott A. Bales, Solicitor...
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241 F.3d 1186 (9th Cir. 2001) EUN KYUNG PARK, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 97-71373 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted January 8, 2001Filed March 6, 2001 1 NOTE: SEE AMENDED OPINION AT 252 F.3d 1018. ...
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*690 Opinion In this case we hold that a city is not subject to suit for damages or an injunction for offering unrestricted access to the Internet through computers at a public library. I. Record This case was filed against respondent City of Livermore by appellant Kathleen R. individually, and in her capacities as a taxpayer and as guardian ad litem for Brandon P., her...
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Opinion In this appeal, we must decide whether a loss payable clause, patterned after the ISO (Insurance Services Office, Inc.) Standard Mortgagee Clause, is a standard loss payable clause. We also must determine various coverage and exclusion issues concerning a mortgagee’s claim under an all-risk homeowners policy. While the policy was in force, the named insured transferred title and m...
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Opinion The State Board of Equalization (the Board) appeals from a summary judgment awarding a refund of sales taxes, interest, and penalties in favor of Modem Paint and Body Supply, Inc. (Modem). Modem is a business that sells products used in auto body repair. It sold items to auto repair shops which the repair shops consumed or used up during the auto repair process and which were not ...
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Opinion The People have commenced proceedings for the commitment of Terry Joseph Leake to a secure mental health facility pursuant to the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.; further section references are to the Welfare and Institutions Code unless otherwise specified.) Leake moved for a court order directing the exchange of expert witness informatio...
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Opinion The attorney-client privilege (Evid. Code, § 954), one of the oldest privileges in our jurisprudence, seeks to encourage candid and open discussion. Courts understandably are chary of efforts to turn attorneys against their clients. (But see People v. Gionis (1995) 9 Cal.4th 1196, 1208-1213 [40 Cal.Rptr.2d 456, 892 P.2d 1199].) Whether dealing with attorney-client communications or attorn...
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Opinion The trial court subjected petitioner to the rigors of class action discovery without holding an oral hearing on petitioner’s demurrer. There was a real and genuine dispute whether the complaint alleged facts sufficient to establish the elements necessary for maintenance of a class action, including a community of interest among the potential class members and a preponderance of common que...
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*714 Opinion Respondent Morton Engineering & Construction, Inc. (Morton), was hired by appellant Stanley Douglas Patscheck (Patscheck), as a subcontractor on a public works project. Patscheck failed to pay Morton for its work. Morton obtained a judgment that included penalties for failure to pay progress payments and retention proceeds within the time required by Business and Pro...
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*654Opinion In October 1996, Frederick D. Westlund was charged in a five-count information with possession of a cane knife (Pen. Code, § 12020, subd. (a));1 possession of a silencer for firearms (§ 12520); possession of a destructive device (§ 12303); possession of a substance or'material, or combination of substances or materials with the intent to make a destructive or explosive device (§ 12312)...
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Opinion by Judge McKEOWN; Dissent by Judge PREGERSON ORDER Judges Hawkins and McKeown vote to grant Appellee United Parcel Service, Inc.’s petition for rehearing. Judge Pre-gerson votes to deny the petition for rehearing. The opinion filed Sept. 6, 2000, amended Oct. 20, 2000 and reported at 229 F.3d 847 (9th Cir.2000) is hereby withdrawn. OPINION This case stems from a union grievance over the t...
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241 F.3d 1208 (9th Cir. 2001) MARLYS BEAR MEDICINE, as co-personal representative of the estate of Leland Kicking Woman; DELORES IRON SHIRT, as co-personal representative of the estate of Leland Kicking Woman; GEORGE KICKING WOMAN; MOLLY KICKING WOMAN; MARLYS BEAR MEDICINE, individually and as guardian of TanielleKicking Woman and George Lee Kicking Woman, II; DANA MURRAY, as guardian of Brand...
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104 Cal. Rptr. 2d 602 (2001) 25 Cal. 4th 62 18 P.3d 29 Bruce SWEATMAN III, Plaintiff and Appellant, v. DEPARTMENT OF VETERANS AFFAIRS, Defendant and Respondent. No. S086696. Supreme Court of California. March 8, 2001. *603 Law Office of Robert K. Scott and D. Scott Mohney, for Plaintiff and Appellant. Arnulfo Hernandez, Jr., Elizabeth C. Wied, Frank Perez Tays, Bruce A. Crane, Sacramento, Patrick...
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Opinion A prosecutor exercises peremptory challenges excusing the only three African-American males in the venire. Defendant’s motion to compel the prosecution to justify these challenges is denied by the trial judge who rules that African-American males do not constitute a cognizable class for purposes of Wheeler.1 The trial judge also refuses to permit the prosecutor to respond to the defense mo...
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I respectfully dissent. Although a challenged juror’s inability to perform his or her function must appear as a demonstrable reality to justify dismissal under Penal Code section 1089 (People v. Feagin (1995) 34 Cal.App.4th 1427 [40 Cal.Rptr.2d 918]), this limitation does not alter the fundamental principles of appellate review. The trial court is best able to observe the appearance and demeanor o...
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259 B.R. 158 (2001) In re Charlton D. ATWOOD and Jana G. Atwood, Debtors. Hank Spacone, Chapter 7 Trustee, Appellant, v. Charlton D. Atwood and Jana G. Atwood, Appellees. BAP No. EC-00-1254-RyMaP. Bankruptcy No. 99-36583-B-7. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on January 19, 2001. Filed February 7, 2001. *159 J. Russell Cunningham, Desmond, Miller ...
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OPINION I. The Chapter 7 Trustee (“Trustee”) appeals the trial court’s determination that *154 his objection to debtor’s exemptions filed more than 30 days after the conclusion of the adjourned meeting of creditors was untimely. The court rejected the Trustee’s contention that his filing with the court of a worksheet indicating that the meeting of creditors had not b...
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Gary Aquino appeals his conviction, and Robert Aquino appeals his conviction and sentence, following guilty pleas to charges of conspiracy to possess with intent to distribute methamphetamine, possession with intent to distribute methamphetamine, and carrying a firearm during a drug trafficking offense under 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 924(c). Robert contends that the district c...
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242 F.3d 867 (9th Cir. 2001) TRACY PETROCELLI, Petitioner-Appellant,v.RON ANGELONE, Respondent-Appellee. No. 97-99029 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 29, 2000Filed March 8, 2001. 1 NOTE: OPINION IS WITHDRAWN. SEE NEW OPINION AT 248 F.3d 877. ...
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Opinion The police detained appellant Ian C. for violating a city’s age-based curfew ordinance and transported him to a “curfew center” facility to await notification of his parents and their arrival at the facility where he would be released to them. The police searched appellant before placing him in the curfew center with other children, and found packets of marijuana and a large amoun...
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Opinion The Hollywood Entertainment District II Business Improvement District (BID II) is a special assessment district in the City of Los Angeles (City). The Hollywood Entertainment District Property Owners Association (the POA), a 26 United States Code section 501(c)(6) nonprofit corporation, administers the funds City raises through assessments on businesses within BID IPs boundaries. ...
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*880 Opinion This case involves interpretation of the Citrus Pest District Control Law (Pest Control Law), codified at Food and Agricultural Code section 8401 et seq. 1 We recently addressed the Pest Control Law at length in People ex rel. Lockyer v. Sun Pacific Farming Co. (2000) 77 Cal.App.4th 619 [92 Cal.Rptr.2d 115]. In that case we held, in part, that t...
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In 1996 Naseem Salman Al-Harbi (“Petitioner”) was brought by American forces to United States territory from northern Iraq, a refuge of Iraqi insurgents hostile to the reign of Saddam Hussein, as part of a massive evacuation effort led by United States government agencies. He wishes to remain here. We are charged with deciding whether he may. *885 BACKGROUND A. Al-Harbi...
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Opinion I. Introduction Angela K. Benedict appeals the trial court’s order granting Danner Press, The Press of Ohio and Bryant Whittaker (respondents) relief from default and default judgment under Code of Civil Procedure section 473, subdivision (b).1 Respondents filed a protective cross-appeal challenging the propriety of the default and default judgment. We conclude that the trial court proper...
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Opinion The petitioner and a codefendant are charged with two counts of premeditated attempted murder. In a separate criminal proceeding arising out of a different episode, the codefendant and another person were charged with the execution-style murder of one person and attempted murder of another. The cases were consolidated, so that the charges against the petitioner are to be tried together ...
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Opinion Robin R. Wilson, a nurse, and Michael C. Shea, a deputy sheriff, had a child, Amanda, in 1990. Robin, however, did not bring this *890 paternity action until June 1998, and the instant appeal arises from a move-away and child support order signed and filed in December 1999. The order was the result of Robin’s relocation to South Carolina to be with her mother. Ev...
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Opinion Is evidence of voluntary intoxication admissible, under Penal Code section 22, on the issue of whether defendant formed the required mental state for arson (Pen. Code, § 451)?1 We conclude that such evidence is not admissible because arson is a general intent crime. Accordingly, we reverse the judgment of the Court of Appeal. Facts and Procedural History On September 26, 1997, defendant t...
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242 F.3d 899 (9th Cir. 2001) BOSTON MUTUAL INSURANCE, a Massachusetts Corporation, Plaintiff-Appellant,v.ROBERT W. MURPHREE, husband, individually and as natural parent of Susan Elizabeth Murphree, a minor; GLENDYON SUE MURPHREE, wife, individually and as a natural parent of SUSAN ELIZABETH MURPHREE, a minor, Defendants-Appellees. No. 99-16239 UNITED STATES COURT OF APPEALS FOR THE NIN...
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241 F.3d 1235 (9th Cir. 2001) ON THE GREEN APARTMENTS L.L.C., a Washington limited liability company, Plaintiff-Appellant,v.CITY OF TACOMA, Pierce County Washington, a municipal corporation, Defendant-Appellee. No. 98-35976 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 20, 2000Filed March 12, 2001 [Copyrighted Material Omitted] Jack...
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241 F.3d 1220 (9th Cir. 2001) JAMES LISSNER, an individual, Plaintiff-Appellant,v.UNITED STATES CUSTOMS SERVICE; JOYCE HENDERSON, Port Director, Otay Mesa, Defendants-Appellees. Nos. 99-56465 00-55102 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 8, 2001Filed March 12, 2001 Tali M. Tuchin, (Briefed), Gray Cary Ware & Freidenrich,...
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243 F.3d 526 (9th Cir. 2001) HEADWATERS, INC., an Oregon not for profit corporation; OREGON NATURAL RESOURCES COUNCIL (ONRC) ACTION, an Oregon not for profit corporation, Plaintiffs-Appellants,v.TALENT IRRIGATION DISTRICT, an Oregon municipal corporation, Defendant-Appellee. No. 99-35373 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 8, 2000Filed F...
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241 F.3d 1224 (9th Cir. 2001) ESTHER JOSEPHINE BUNUAN AGBUYA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70965 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 16, 1999Opinion and Dissent Filed July 18, 2000Opinion Amended March 12, 2001 [Copyrighted Material Omitted] Raquel M. Perez, Encino, California, fo...
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Opinion Plaintiff Del Cerro Mobile Estates appeals an order granting defendant Margery L. Proffer’s motion for attorney fees under Civil Code 1 section 798.85 2 after Del Cerro voluntarily dismissed its lawsuit against Proffer for breach of contract and abatement of nuisance. Del Cerro contends the court should have concluded Proffer was not entitled to attorney fees on either cause of acti...
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Rocco Dipentino and Rafiq Ali appeal their convictions following their joint trial for improperly removing asbestos-containing materials from the Landmark Hotel and Casino in Las Vegas, Nevada, prior to its demolition, in violation of the Clean Air Act, 42 U.S.C. §§ 7412(f)(4) and (h), 7413(c)(1). The government cross-appeals the sentences imposed by the district court. We conclude that the distri...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, 1 it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. 1 . Judge Fisher was recused. ...
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Opinion During the initial 30-day period of medical control by the employer following an industrial injury, Daniel Ordorica refused care by the employer’s doctor and instead began treatment with a physician he chose. The Workers’ Compensation Appeals Board (WCAB) determined that Ordorica’s refusal and change of physicians was an illegal and deliberate attempt to deny the employer its right of m...
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Santillan was prosecuted under the Lacey Act for bringing ten baby parrots across the border from Tijuana. His appeal raises, among other issues, a significant question about the mens rea needed under the Lacey Act. Facts Santillan was convicted of smuggling 1 and importing wildlife in violation of the *1127 Lacey Act. 2 Santillan owne...
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Opinion Background This is an appeal from an order imposing sanctions in the amount of $2,400 on appellant Colonial Western Agency, Inc.’s counsel. The underlying matter involves a complaint by respondent Mary Martha Stewart against Colonial Western. Stewart was employed as a senior vice-president for Colonial Western from October 1, 1997, to January 8, 1998. According to Stewart, she left secure...
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Opinion Robert Friedenberg appeals a judgment and orders denying his motion for judgment notwithstanding the verdict (JNOV) and partially granting a new trial following a jury verdict finding Friedenberg committed negligence in connection with his legal representation of Michael Piscitelli. Piscitelli retained Friedenberg’s law firm to pursue claims against his employer, Prudential Securi...
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Opinion In this case of first impression, we conclude that before appointment of a guardian ad litem for a parent in a Welfare and Institutions Code section 3001 proceeding, the parent’s right to due process requires an informal hearing and an opportunity for the parent to be heard. The failure to provide the parent with an opportunity to be heard in this case requires reversal of the jurisdictio...
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Opinion Defendant Gregory Tommie Jones was convicted of acts of forcible rape, sodomy, and oral copulation against a single victim, with findings, as to each offense, of kidnapping and use of a deadly weapon. It was found that he committed the offenses on more than a “single occasion” within the meaning of Penal Code section 667.61, subdivision (g), part of the so-called one strike law, which pro...
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We deny the petition for review on the grounds stated by the tax court in Redlands Surgical Servs. v. C.I.R, 113 T.C. 47, 1999 WL 513862 (1999). Specifically, we adopt the tax court’s holding that appellant Redlands Surgical Services “has ceded effective control over the operations of the partnerships and the surgery center to private parties, conferring impermissible private benefit. [Redlands...
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Antonio Herrera-Rojas pled guilty to bringing an illegal alien into the United States for commercial gain. He appeals the district court’s sentence, claiming that the court failed to rule on his objections to the presentence report. He also claims that the court erred in enhancing his sentence for intentionally or recklessly creating a substantial risk of death or serious bodily injury to the ali...
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These three appeals are the latest round in a seemingly never-ending bout of litigation between Mydrin, Inc., and Travelers Casualty and Surety Company (formerly, Aetna Casualty and Surety Company), one of Mydrin’s insurers. All three appeals stem from a dispute over Travelers’ coverage of Mydrin for losses resulting from state-court lawsuits filed against Mydrin by two of its customers. *1106Trav...
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243 F.3d 1145 (9th Cir. 2001) JAMES J. MORRISSEY; ALAN S. BERCUTT, C.P.A.; DIANE FANTL, Co-executors of the Estate of Alice Friedlander Kaufman, Deceased, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 99-71013 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 14, 2001Filed March 15, 2001 David Duez, E...
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*1054Opinion 1. Introduction Jack D. Cochran (husband) appeals a marital dissolution judgment entered on August 24, 1999, wherein the trial court rejected his claim for reimbursement of separate property funds allegedly used for home improvements during his marriage. Husband contends that under Family Code section 26401 he is entitled to reimbursement of funds paid from his separate property port...
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242 F.3d 1119 (9th Cir. 2001) RICHARD LEO DEORLE, Plaintiff-Appellant,v.GREG RUTHERFORD, Butte County Deputy Sheriff; MICK GREY, Butte County Sheriff; COUNTY OF BUTTE, Defendants-Appellees. No. 99-17188 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 12, 2000Filed March 16, 2001 See November 19, 2001 Amended Majority Opinion at 272 F.3d...
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243 F.3d 1149 (9th Cir. 2001) THOMAS CHARLES KLEVE, Petitioner-Appellant,v.D. R. HILL, Warden CCI; J.GOMEZ; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA; DANIEL E. LUNGREN, Attorney General, Respondents-Appellees. No. 97-56182 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed March 16, 2001 Jeffrey A. Aaron, Twin Peaks, CA, for petitioner-appellant. Douglas...
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ORDER The Opinion filed November 7, 2000, and appearing at 232 F.3d 657 (9th Cir.2000) is amended as follows: 1. Page 662, third full paragraph (beginning with “The government disagrees ... ”), line 6 thereof, delete “on the section 1326 charge” and replace with “on January 14, 1999”. 2. Page 662, the final paragraph (beginning with “Here, Lopez waived ... ”), delete the first full sentence...
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*1115 Opinion Plaintiff and appellant Zoran K. Basich (Basich) appeals a judgment in this action for breach of the implied covenant of good faith and fair dealing entered in favor of defendant and respondent Allstate Insurance Company (Allstate). Judgment was entered after the trial court granted Allstate’s motion for nonsuit on the ground that Basich had failed to file his actio...
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*1074 Opinion Petitioners Donald R. Deary, executor of the Estate of Roy Grant Deary, Jr., et al. (defendants), contend that a discovery order issued by respondent Superior Court of Sacramento County requiring them to provide copies of estate tax returns to real party in interest Carolee Hendrick (plaintiff) violates their privilege to keep such returns confidential. They seek a writ of manda...
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Opinion In this writ proceeding we find the trial court’s discovery order infringes upon a witness’s psychotherapist-patient privilege as well her right to privacy. Accordingly, we grant the witness’s writ and direct the trial court to enter a new order consistent with the views we express. Summary Real party in interest Dannielle M. Kinder was severely injured on August 27, 199...
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105 Cal. Rptr. 2d 139 (2001) 87 Cal. App. 4th 1099 Marilyn PUNSLY et al., Plaintiffs and Respondents, v. Manwah HO, Defendant and Appellant. No. D036025. Court of Appeal, Fourth District, Division One. March 16, 2001. *140 Luce, Forward, Hamilton & Scripps and Charles A. Bird, San Diego, for Defendant and Appellant. Trope and Trope, Thomas Paine Dunlap and Donna Beck Weaver, Los Angeles, for ...
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Opinion In this case we find that although a petition alleging that a person is a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators Act (SVPA or Act) (Welf. & Inst. Code, § 6600 et seq.) 1 should not be filed until two psychotherapists have evaluated the alleged SVP and found that his condition meets the requirements of the Act, a failure to d...
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The Appellants are citizens of the Federated States of Micronesia who reside in the'Commonwealth of the Northern Mariana Islands (“CNMI”). This case concerns the Appellants’ claims that they are entitled to receive benefits from the Nutrition Assistance Program (NAP), even though their status is that of aliens in CNMI. The Appellants originally received benefits under the program, but because they...
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Silva Tonapetyan appeals from the district court’s summary judgment affirming the decision of the Commissioner of Social Security denying her supplemental security income disability benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Tonapetyan asserted that she was disabled as the result of a number of physical and mental impairments. She contends that the administrat...
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ORDER VACATING OPINION AND REVERSING THE DISTRICT COURT Pursuant to the stipulation of the parties we enter this order. Pursuant to the mandate of the United States Supreme Court certified on July 26, 2000, in California Democratic Party v. Bill Jones, 580 U.S. 567, 120 S.Ct. 2402, 147 L.Ed.2d 502, we vacate our opinion at 169 F.3d 646 (9th Cir.1999), reverse the district court, and remand for fur...
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delivered the opinion of the Court. Temporary road signs with warnings like “Road Work Ahead” or “Left Shoulder Closed” must withstand strong gusts of wind. An inventor named Robert Sarkisian obtained two utility patents for a mechanism built upon two springs (the dual-spring design) to keep these and other outdoor signs upright despite adverse wind conditions. The holder of the now-expire...
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Opinion February 2, 2000, a Welfare and Institutions Code section 602 petition was filed against appellant Ricky T. alleging that he made a felonious terrorist threat (Pen. 1 § 422) and threatened a teacher with the intent of preventing him from performing his duties (§ 71). *1135 On April 26, 2000, in a jurisdictional hearing, the parties stipulated that the matt...
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I. Davis first argues that his conviction for firearm possession by a felon, in violation of 18 U.S.C. § 922(g)(1), is invalid because Congress lacked authority under the Commerce Clause to deem such possession criminal. While agreeing that his position is directly contrary to circuit precedent, including United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir.1995) (§ 922(g) not facially unconst...
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Oksana Oleszko appeals the denial of her motion to compel discovery from the State Compensation Insurance Fund’s (“SCIF”) Employee Assistance Program (“EAP”). 1 The district court concluded that the federal psychotherapist-patient privilege protected the requested information from disclosure. See Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996). We hav...
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I. In this appeal, we must determine when a service mark is first used in commerce under the Lanham Act, 15 U.S.C. § 1127. Allen Chance, d/b/a/ T.A.B. Systems (“T.A.B.”), claims first use of the service mark “TeleTrak” in connection with T.A.B.’s lost and found tag service. Pac-Tel Teletrac, Inc. and related entities (collectively “Pac-Tel”) claim priority of use in connection with their radio fr...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3.The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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This is the third appeal by Defendant Southwest Marine, Inc., arising from an action brought against it by Plaintiffs Natural Resources Defense Council, San Diego Baykeeper, and Kenneth J. Moser un *1165 der the citizen suit provisions of the Clean Water Act, 33 U.S.C. § 1365(a). Southwest Marine’s first two appeals, challenging the district court’s judgment in favor of Plaintiffs ...
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Opinion I. Introduction Plaintiffs, Save the Sunset Strip Coalition, Gigi Verone and Geoffrey Smith, appeal from a judgment denying a writ of mandate. Plaintiffs challenged actions of the defendants, City of West Hollywood and its city council (collectively, the city), with respect to a development project. The developer, Sunset Millennium Associates, LLC (Sunset), is the real party ...
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delivered the opinion of the Court. In this case, we must decide whether a state hospital’s performance of a diagnostic test to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an *70unreasonable search if the patient has not consented to the procedure. More narrowly, the question is whether the interest in using the threat of criminal sanctions to deter pregnant wom...
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*1155 Opinion Appellants Y-3 Holdings, Inc., and Merv York appeal from an order denying arbitration of a lawsuit filed by respondent, ex-employee Lupe S. Romo, arising from termination of her employment. We conclude that the trial court did not err in concluding no agreement to arbitrate existed between the parties, and we affirm. Statement of Facts Respondent was conti...
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Opinion Introduction Welfare and Institutions Code 1 section 361.4, subdivision (d)(2) states that a “[dependent] child shall not be placed in the home” where the child would have contact with an adult who has been convicted of a crime, other than a minor traffic violation. The Los Angeles County Department of Children and Family Services (the department) has filed a petition for writ of ma...
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Opinion Richard Traverso doing business as Adco Outdoor Advertising appeals from an order dismissing his first amended petition for writ of mandate and complaint for damages (the complaint) against the California Department of Transportation (Caltrans) after Caltrans’s demurrer was sustained without leave to amend, This suit unsuccessfully attempts to revive permits for billboards which ...
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Opinion Defendant Jaime Ledesma Zepeda appeals after conviction, by jury trial, of first degree murder. (Pen. Code, § 187.) 1 The jury found true an allegation that defendant used a firearm (§ 12022.5, subd. (a)(1)) and an allegation that he discharged a firearm and caused death (§ 12022.53, subd. (d)). The trial court sentenced him to a term of 25 years to life for the murder,...
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Rosalba Aguirre-Cervantes (“petitioner”), a 19-year-old native of Mexico, petitions for review of an order of the Board of Immigration Appeals (“BIA”), which vacated a decision by the Immigration Judge granting her request for asylum. Over many years, the petitioner was subjected to extreme abuse by her father. She contends this abuse constituted persecution, and that it occurred on account of ...
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Peter Mackby, the owner and managing director of a physical therapy clinic called Asher Clinic, appeals the district court’s civil judgment in favor of the United States under the False Claims Act, 31 U.S.C. §§ 3729-3733 (1994). After a three-day bench trial, the district court found that Mackby knowingly caused false claims to be submitted to Medicare between 1992 and 1996 by instructing the c...
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Opinion In this case we hold that the trial court correctly sustained demurrers to a complaint seeking an order that applications for permits to erect billboard structures be deemed approved. *1219 Factual and Procedural Summary Appellant Eller Media Company constructs outdoor billboard structures for the purpose of renting to advertisers. In April, May, and June of 1999, it applied to th...
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105 Cal. Rptr. 2d 46 (2001) 25 Cal. 4th 117 18 P.3d 1198 Thomas M. THOMPSON et al., Plaintiffs and Respondents, v. DEPARTMENT OF CORRECTIONS et al., Defendants and Appellants. No. S071080. Supreme Court of California. March 22, 2001. Rehearing Denied May 16, 2001. *47 Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Peter J. Siggins, Assi...
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ORDER The district court dismissed petitioner Wayne Porter’s 28 U.S.C. § 2241 petition for writ of habeas corpus. Porter filed a notice of appeal. This court construed the notice of appeal as a request for a certificate of appealability (“COA”) and directed the district court to rule on the request. The district court subsequently denied the COA. On its face, Porter’s petition raises the same...
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Defendant Gerald Henderson appeals his conviction under 43 U.S.C. § 1733(a) for violations of two subsections of 43 C.F.R. § 3715.6, a regulation promulgated by the Bureau of Land Management (BLM). Defendant contends that the magistrate judge 1 committed reversible error when he failed to instruct the jury that 43 U.S.C. § 1733 is a “specific intent” offense, requiring the prosecutio...
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The False Claims Act (FCA) permits, in certain circumstances, suits by private parties on behalf of the United States against anyone submitting a false claim to the government. In 1986, Congress amended the FCA to include § 3730(b)(5), which provides that “[w]hen a person brings a [qui tam action], no person other than the Government may intervene or bring a related action based on the facts un...
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Mario Tellez Verdin appeals the sentence imposed after he pleaded guilty to *1176 one count of importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960. Because Verdin completed his term of incarceration and began his three-year period of supervised release one week before his appeal was argued, we must first decide whether, as the government urges, Ver-din’s appeal is moot. We hold t...
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Ernesto Espinoza-Castro, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (BIA’s) decision'affirming the Immigration Judge’s (IJ’s) finding that Espinoza was deportable pursuant to 8 U.S.C. § 1251(a)(1) because (1) he was excludable at entry under 8 U.S.C. § 1182(a)(22) for having remained outside the United States to avoid or evade military service duri...
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Opinion The Department of Motor Vehicles (DMV) suspended Irene Janina Solovij’s license for driving with 0.08 percent or more of alcohol in her blood. (Veh. Code, § 13353.2.) 1 The administrative hearing officer considered both the officer’s sworn and unsworn report. The trial court granted Solovij’s petition for writ of mandate because there was no competent evidence in the sw...
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*1224 Opinion the trial court appellants Jose C. Rodriguez and Martha O. Rodriguez 1 entered into a settlement agreement with respondents Jorge Sandoval Valencia and Maria Milan De Sandoval 2 on the record. Unknown to Sandoval and the trial court, Jose C. Rodriguez had filed a bankruptcy petition that was then pending. Shortly after the settlement, Sandoval ...
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Opinion I. Introduction After he was convicted of grand theft (Pen. Code, § 487), 1 the trial court ordered Robert Brewer to provide blood and saliva samples as a condition of probation. In so doing it relied, as authority for this condition, on section 296.1, subdivisions (c) and (d), of the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (the DNA Act)...
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Opinion Introduction Defendant and appellant Jean C. Chang (Jean) appeals from a judgment in favor of plaintiff and respondent Sanwa Bank California (Sanwa Bank), by which the trial court found her liable for fraudulent conveyance as the transferee of the family residence from her husband, George Chang (George), prior to George’s filing for bankruptcy. Jean argues that George’s discharge from...
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Opinion Introduction This appeal arises out of the following series of events. Gordon Ecker went to Raging Waters amusement park. Several adolescent boys complained to park security that Ecker was following and videotaping them. Security observed Ecker and confirmed he was surreptitiously videotaping juveniles. After uniformed security personnel approached Ecker, he *1324...
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*1277 Opinion Summary Under a memorandum of understanding (MOU) between plaintiff National City Police Officers’ Association (the association) and defendant City of National City (the city), each year police officers are permitted to sell back up to 40 hours of unused vacation time. Separate provisions of the MOU require that in addition to their hourly base pay officers receive incentive p...
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*1286 Opinion The sole issue presented by this appeal is whether California source income of an S corporation, passed through to a nonresident, is subject to California tax. Gene and Maureen Valentino (the Valentinos) appeal a judgment in favor of the State of California Franchise Tax Board (the Board) entered after the trial court denied the Valentinos’ motion for summary judgme...
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C. A. 11th Cir. Certiorari denied....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Circuit City Stores, Inc. v. Adams, ante, p. 105....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case re*939manded for further consideration in light of Circuit City Stores, Inc. v. Adams, ante, p. 105....
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C. A. 10th Cir. Certiorari granted. ...
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Plaintiffs Cheryl C. Oliver (“Oliver”) and Jo Ann Tennison (“Tennison”) (collectively, “Plaintiffs”) brought suit against Defendants Circus Circus Enterprises, Inc. and the Colorado Belle Corp. (collectively, “Management” or “Defendants”) for sexual harassment under Title VII and intentional infliction of emotional distress. The district court granted summary judgment in favor of Defendants on Pl...
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This appeal presents the question of whether ERISA plan fiduciaries are also fiduciaries within the meaning of 11 U.S.C. § 523(a)(4). We conclude that they are, but that the specific allegations of breach of ERISA fiduciary duties do not constitute defalcations within the meaning of 11 U.S.C. § 523(a)(4). I Morrison Knudsen Corporation (“MK”) was a large, publicly-held, engineering and constructio...
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Jose de Jesus Castillo-Rivera (“Castillo”), a Mexican citizen who pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § .1326, appeals the sentence enhancement for removal subsequent to conviction for an aggravated felony. Castillo contends that his prior state conviction for violating California Penal Code (“CPC”) § 12021(a) as a felon in possession of a firearm does not con...
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Appellants Christopher Owens and Cynthia Hutchins appeal from the district court’s order dismissing their Title VII action against Kaiser Foundation Health Plan, Inc. (“Kaiser”) based on the doctrine of res judicata. We affirm because we conclude that the application of the doctrine of res judicata is not barred merely because they did not receive “right to sue” letters from the Equal Employmen...
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Dennis Mark La Crosse appeals the district court’s dismissal of his petition for habeas corpus, claiming that the California Supreme Court’s denial of his claim in 1996 did not act as a bar to federal habeas review. We have jurisdiction pursuant to 28 U.S.C. § 2253 and we affirm, although on grounds different from those relied upon by the district court. I. On April 21, 1983, a Los Angeles Co...
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Petitioner Carlo Hernaez, a citizen of the Philippines, is HIV-positive and a homosexual. An Immigration Judge (“IJ”) ordered him deported on the bases of overstaying his visa and his drug addiction. The Board of Immigration Appeals (“BIA”) affirmed, denying his motions to remand for consideration of an application for suspension of deportation and to reopen for consideration of an asylum appli...
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Frank Preston Akins appeals his conviction, following a bench trial, for possession of a firearm by a person convicted of a “misdemeanor crime of domestic violence” in violation of 18 U.S.C. § 922(g)(9). Although Akins challenges his conviction on numerous grounds, we address only his contention that his firearms possession was not a federal crime under § 922(g)(9) because he did not knowingly and...
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In this diversity action, defendant-appellant National Union Fire Insurance Company of Pittsburgh (“National Union”) seeks reversal of a $12 million jury verdict for its breach of an insurance policy’s implied covenant of good faith and fair dealing. National Union contends that as a matter of law, the policy did not cover plaintiff-appellee American Medical International’s (“AMI”) underlying c...
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244 F.3d 728 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JULIAN GALINDO-GALLEGOS, aka Jose Reyes-Olague, aka Aurelio Garcia-Chairez, aka Jose Olague Reyes, Defendant-Appellant. No. 99-50585 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 12, 2000Filed March 27, 2001 NOTE: SEE AMENDED OPINION AT 255 F.3d 1154. Debra...
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ORDER AND AMENDED OPINION ORDER The opinion filed January 10, 2001 is hereby amended as follows: *677On page 342 of the slip opinion filed January 10, 2001, delete the first paragraph of part II and insert instead: II Willis and Gomez contend that the Appellees discriminated against them by failing to make a reasonable accommodation for their disabilities. They argue that “Appellees are required ...
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This federal habeas case raises issues concerning the admissibility of expert testimony on battered women’s syndrome and the proper procedure for taking judicial notice of a defendant’s prior felony convictions. This case also involves a challenge to the constitutionality of two five-year sentence enhancements. California prisoner Adrian Lamont Dillard filed a 28 U.S.C. § 2254 petition in federal ...
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Opinion In 1999 plaintiff Thomas H. Kline sued defendants Priority Records, Inc. (Priority), a recording company, and its president Bryan Turner for alleged fraudulent acts occurring in 1990. Turner and Priority moved for summary judgment, arguing the action was time-barred. The trial court granted the motion. Judgment for Priority and Turner followed. Kline appeals. Background In 1990 Kline, a t...
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Opinion This case revolves around the interpretation and application of Adoption of Kelsey S. (1992) 1 Cal.4th 816 [4 Cal.Rptr.2d 615, 823 P.2d 1216]. When Jaime T. was 20 and Annie G. was 18, they lived together for about a month. After Annie became pregnant with Jaime’s child, she moved back in with her parents. Annie wanted to place the child for adoption. Jaime wanted ...
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Opinion This case presents an issue of first impression concerning the application of the immunity provisions contained in Government Code section 850.4.1 We conclude that the immunity applies to the actions alleged against petitioner in this case, and that the action is therefore barred. Accordingly, we will grant the relief requested and direct the trial court to sustain petitioner’s demurrer w...
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Opinion Michael Carrillo pled guilty to felony possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), misdemeanor using or being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), and misdemeanor possession of controlled substance paraphernalia (Health & Saf. Code, § 11364). (Pen. Code, § 1237.5; 1 Cal. Rules of Court...
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This case requires us to decide whether there was reasonable suspicion for a traffic stop under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where the officer misapprehended the traffic law that was the basis for the stop. In view of our recent decisions in United States v. Rojas-Millan, 234 F.3d 464 (9th Cir.2000), and United States v. Twilley, ...
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ORDER The opinion filed on August 26, 1999, published in 189 F.3d 889, is withdrawn. OPINION Fortunado Dictado appeals the dismissal of his 28 U.S.C. § 2254 habeas corpus petition. The district court concluded that Dictado filed his petition after the expiration of the one-year statute of limitations established in 28 U.S.C. § 2244(d)(1), the Antiterrorism and Effective Death Penalty Act (“...
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Reynaldo Lopez-Pastrana appeals his sentence of eighty months imprisonment entered pursuant to a guilty plea to a single count of violating 8 U.S.C. § 1326 (Illegal Reentry). Lopez-Pastrana contends that the district court misapplied the Sentencing Guidelines and arrived at an improper criminal history score. We vacate the sentence and remand for re-sentencing on the grounds that Lopez-Pastra-na’s...
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Anti-abortion activists intimidated abortion providers by publishing their names and addresses. A jury awarded more than $100 million in actual and punitive damages against the activists, and the district court enjoined their speech. We consider whether such speech is protected by the First Amendment. I During a Í995 meeting called to mark the anniversary of Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705...
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Opinion Adolphus Ray Morgan appeals from a summary judgment granted in favor of the Regents of the University of California (University) in his employment discrimination action. 1 He contends the trial court erred in granting summary judgment because he presented direct evidence that respondent’s failure to rehire him after a layoff was in retaliation for his prior complaint ab...
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Opinion In this case, we address issues left undecided in People v. Hatch (2000) 22 Cal.4th 260 [92 Cal.Rptr.2d 80, 991 P.2d 165] (Hatch). We *8hold that a trial court’s postconviction dismissal of a jury’s verdict based on insufficiency of evidence is an appealable order. We further hold that judgment may be entered on that underlying jury verdict without violating the state or federal prohibiti...
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Opinion Ivan J. appeals from a judgment declaring him a ward of the juvenile court and placing him on probation. (Welf. & Inst. Code, § 602.) He contends the evidence did not support the court’s jurisdictional finding that he had falsely identified himself to a peace officer under Penal Code section 148.9, subdivision (a) (hereafter section 148.9(a)). We affirm. Facts About 10:00 p.m. on October ...
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Opinion When a witness who testified at the preliminary hearing is unavailable to testify at trial, it is statutorily and constitutionally acceptable for the former testimony to be used at trial. (See Evid. Code, § 1291; Ohio v. Roberts (1980) 448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597].) This case presents the question whether the prosecution, to establish the unavailability ...
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Opinion Michael Shane Hoffman was charged by information with transporting and possessing methamphetamine after his motion to suppress evidence was denied by the preliminary hearing magistrate. Hoffman eventually pleaded guilty to the charges in exchange for three years of formal probation. He now seeks review of the magistrate’s ruling. We conclude, however, Hoffman has waived his right to app...
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105 Cal.Rptr.2d 387 (2001) 25 Cal.4th 136 19 P.3d 1129 The PEOPLE, Plaintiff and Respondent, v. Floyd E. MURPHY, Jr., Defendant and Appellant. No. S075263. Supreme Court of California. March 29, 2001. Rehearing Denied June 20, 2001. *389 Donald I. Segerstrom, Jr., under appointment by the Supreme Court, Sonora, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, Ge...
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244 F.3d 1037 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.FLAVIO DAVID MENDOZA, DEFENDANT-APPELLANT. No. 00-10219 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 10, 2001Filed March 29, 2001 [Copyrighted Material Omitted] Shawn Halbert, Assistant Federal Public Defender, San Francisco, California, for the defenda...
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*1207OVERVIEW This case presents the question whether a plaintiff who alleges discrimination based on sex under Title VII of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e et seq., may defeat a summary judgment motion when the evidence he presents supports only the claim that he was discriminated against because of his sexual orientation. We conclude that he may not. Medina Rene appeals from the d...
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Opinion Appellant Jennifer M. appeals from a final judgment dismissing her action against respondent Redwood Women’s Health Center (Redwood), a private medical care provider, for violation of the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.)1 and public disclosure of private facts. Jennifer contends the Information Practices Act protected the confidentiality of her medical records...
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Opinion Centennial Insurance Company (Centennial) appeals from a judgment entered in favor of respondent United States Fire Insurance Company (U.S. Fire) using the “time on the risk” method to apportion the parties’ respective defense costs accrued in defending their mutual insured. Centennial contends the trial court’s choice of a method of allocation based on the carriers’ respective time on th...
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Opinion This case concerns the jurisdiction of the appellate division of the superior court, following trial court unification, to hear a petition for writ of mandate arising out of enforcement proceedings in the small claims court. The clerk of the appellate division of the superior court rejected, for want of jurisdiction, a petition for writ of mandate challenging a postjudgment enforcement ord...
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*119Opinion William Jun purchased inventory and furniture from Michael Myers, a receiver1 in a civil action to which Jun was not a party. Several months after the purchase, Jun claimed to have discovered the assets he purchased were not as represented. He filed a motion seeking leave to sue receiver either in that action or in a separate lawsuit. The motion was denied. Jun made a subsequent motio...
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Opinion The trial court granted declaratory relief to the insured, finding that the insurer owed a duty to defend. In all other respects, the trial court entered judgment for the insurer. Both parties have appealed. Reversing the trial court’s ruling on the declaratory relief cause of action, we hold there was no duty to defend. We remand for the trial court to enter judgment for the...
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Opinion Beginning in 1979, plaintiff Charles Starzynski was employed as program director for Sacramento radio stations KXPR and *36KXJZ, which are owned and operated by defendant Capital Public Radio, Inc. (CPR). Plaintiff was orally assured by his supervisor, Phil Corriveau, that plaintiff’s employment could be terminated only for good cause. In December 1991, plaintiff signed an “Employment At-...
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Opinion Larry Barker appeals the dismissal of his wrongful death suit against Brown & Williamson Tobacco Corporation (Brown) for the *45 1962 death of his father following the sustaining of a demurrer on the ground Barker’s claim was barred by the statute of limitations. On appeal, Barker contends the Legislature’s 1997 amendments to Civil Code 1 section 1714.45 ab...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court, pursuant to Circuit Rule 35-3. The three judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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244 F.3d 1061 (9th Cir. 2001) WARREN Y.S.C. ALBANO; CAROLINE C.S. ALBANO,Plaintiffs-Appellants,v.NORWEST FINANCIAL HAWAII, INC.,Defendant-Appellee. No. 99-16109 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 12, 2001Filed March 30, 2001 Gary V. Dubin, Dubin Law Offices, Honolulu, Hawaii, for the plaintiffs-appellants. Bruce L. La...
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In this appeal, we are asked to determine whether a “finance writer” employed by an auto dealership qualifies as a vehicle salesman or serviceman within the overtime exemption of 29 U.S.C. § 213(b)(10). Under the circumstances of this case, we conclude that the position is not exempt, and reverse the judgment of the district court. I Jerry Gieg worked for Courtesy Ford, Inc., an autom...
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244 F.3d 1065 (9th Cir. 2001) PATRICIA E. GENTALA and ROBERT A. GENTALA,Plaintiffs-AppellantsCross-Appellees,v.THE CITY OF TUCSON,Defendant-AppelleeCross-Appellant. Nos. 97-17062,97-17069 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted En Banc September 19, 2000Filed March 30, 2001 Kevin H. Theriot, Lawrenceville, Georgia, for the plaintiffsappe...
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244 F.3d 1050 (9th Cir. 2001) DOUGLAS ESTRADA, Plaintiff-Appellee,v.SPENO & COHEN, Attorneys at Law; SARAH SPENO; DAVID B. COHEN,Defendants-Appellants. No. 99-56013 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 6, 2001--Pasadena, CaliforniaFiled March 30, 2001 1 NOTE: SEE NEW OPINION OF MAY 24, 2001. ...
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Opinion Willis H. appeals from juvenile court orders removing three children from his custody and denying reunification services. He maintains: (1) the district attorney’s participation in the juvenile dependency proceedings was inappropriate and prejudicial, (2) his trial counsel rendered ineffective assistance, and (3) the court erred in denying reunification. For the reasons discussed below, w...
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105 Cal.Rptr.2d 407 (2001) 25 Cal.4th 197 19 P.3d 1148 Heather PRESTON, Plaintiff and Appellant, v. STATE BOARD OF EQUALIZATION, Defendant and Respondent. No. S083632. Supreme Court of California. April 2, 2001. *411 Nicholas Blonder, Mill Valley, for Plaintiff and Appellant. Daniel E. Abraham; Nielsen, Merksamer, Parrinello, Mueller & Naylor, John E. Mueller and Eric J. Miethke, Mill Valley,...
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105 Cal.Rptr.2d 431 (2001) 25 Cal.4th 230 19 P.3d 1171 In re Hugo Rangel RESENDIZ, on Habeas Corpus. No. S078879. Supreme Court of California. April 2, 2001. Rehearing Denied June 13, 2001. *433 Cynthia M. Sorman, San Diego, and Michelle C. Rogers, under appointments by the Supreme Court; and Richard L. Waldron, Anaheim Hills, for Petitioner Hugo Rangel Resendiz. Law Offices of Norton Tooby and N...
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Opinion by Judge CYNTHIA HOLCOMB HALL; Partial Concurrence and Partial Dissent by Judge BETTY B. FLETCHER. Colorado Western Insurance Company (“CWIC”) appeals the district court’s judgment after trial holding that a policy which it issued Peggy Troutt (“Troutt”) d/b/a Little Joe’s Tavern applied to an injury suffered by Terry Engstrand (“Engst-rand”) sustained during the latter’s performance of a...
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On April 25, 1997, the Immigration and Naturalization Service (“INS”) filed a Notice to Appear (“NTA”) with the Immigration Court charging Salustia Cortez-Felipe (“Petitioner”) with removability pursuant to section 212(a)(6)(A) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1182(a)(6)(A), as an alien within the United States without being admitted. On January 26, 1998, Petitioner ad...
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Insoon Lee (“Lee”) appeals a judgment and order dismissing the qui tam action that he brought under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, against SmithKline Beecham, Inc. (“SmithKline”). We affirm the district court’s determination that Lee failed to satisfy the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). However, we reverse the district court’s decis...
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Opinion The circumstances which give rise to this appeal are tragic. Plaintiff and respondent Colleen Kane (Colleen) was severely injured and her husband, John Kane (John), was killed while they were participants in a ski clinic being conducted by defendant and appellant National Ski Patrol System, Inc. (NSPS). The clinic was for skiers who wanted to become members of a local voluntary sk...
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Opinion Defendants Longwood Management Corp. (case No. G027263) and Ira David Enterprises, Inc. (case No. G027773) appeal from a *217 denial of their petitions to compel arbitration for failure to authenticate the alleged arbitration agreement; Longwood Management also appeals from the denial of its motion to reconsider. We conclude the court erred in denying the petitions and reverse. Fact...
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Opinion This is an appeal by intervener County of San Diego (County) 2 from an order of the family law court finding a November 7, 1978 “Modified Findings and Order Re: Support,” concerning “the existing support obligation” of Thomas A. Dupont (Thomas) to Susan C. Dupont (Susan) 3 for child support, was an installment judgment subject to accruing interest “as to each...
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Opinion This case raises a single legal question concerning corporate names: may the name of a suspended corporation be reserved and *222 adopted by another corporation? The Secretary of State says yes. Appellants, whose corporate name was taken during a period of suspension, say no. We agree with the Secretary of State. Facts Appellants Bruce and Marian Boyer incor...
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244 F.3d 1092 (9th Cir. 2001) UNITED STATES OF AMERICA,Plaintiff-Appellee,v.SHO JAY MATSUMARU, Defendant-Appellant. No. 99-10334 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 13, 2000Filed April 3, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted] William L. Osterhoudt, Law Offices of William L.Osterhoudt, San Fr...
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244 F.3d 1115 (9th Cir. 2001) DORIS ROWE,Plaintiff-Appellant,v.LAIDLAW TRANSIT, INC., a foreigncorporation,Defendant-Appellee. No. 00-35197 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 5, 2001Filed April 4, 2001 Jacqueline L. Koch, Koch & Deering, Portland, Oregon, and J. Dana Pinney, Bailey, Pinney & Associates, Tualatin, Orego...
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244 F.3d 1109 (9th Cir. 2001) BYRON INGRAM, Plaintiff-Appellant,v.MARTIN MARIETTA LONG TERM DISABILITY INCOME PLAN FOR SALARIED EMPLOYEES OF TRANSFERRED GE OPERATIONS, an ERISA Plan, Defendant-Appellee. No. 99-55581 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 17, 2000Filed April 4, 2001 [Copyrighted Material Omitted] Charles ...
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244 F.3d 1119 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.HECTOR ARELLANO-RIVERA,Defendant-Appellant. No. 00-50453 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 8, 2001Filed April 4, 2001 Joseph S. Smith, Office of the United States Attorney, San Diego, California, for the plaintiff-appellee. Benjamin P. Lechm...
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245 F.3d 1058 (9th Cir. 2001) IN RE: ROBERT WAYNE DUNBAR, Debtor,IN RE: KIMBERLY ANN DUNBAR, Debtor.CONTRACTORS' STATE LICENSE BOARD OF CALIFORNIA, REGISTRAR OF CONTRACTORS STATE OF CALIFORNIA, DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, Appellants,v.ROBERT WAYNE DUNBAR, KIMBERLY ANN DUNBAR, Appellees. No. 99-16814 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argue...
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ORDER This case involves an appeal by a lawful permanent resident of the denial of cancellation of removal. We conclude that we lack jurisdiction under the Immigration and Nationality Act (“INA”) § 242(a)(2)(C), 8 U.S.C. § 1252(a)(2)(C). We also determine that transfer of this case to the district court is in the interest of justice. Accordingly, we transfer this case to the district court for fur...
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The main issue in this case is whether the defendant’s guilty plea was tainted by a coercive colloquy. I. Facts Gaither and another man robbed a bank. The other man brandished a pistol. Gaither was charged with armed bank robbery. 2 Bank robbery with a gun is punished much more severely than unarmed bank robbery. Gaither did not change his plea to guilty until the first day of trial, afte...
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Opinion In this case we consider whether Government Code section 17581 and certain budget measures that suspend the operation of administrative regulations adopted by the Department of Industrial Relations violate the separation of powers clause of the California Constitution by encroaching on the power of the executive branch of government. (Cal. Const., art. Ill, § 3.) We conclude that no separ...
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105 Cal.Rptr.2d 457 (2001) 25 Cal.4th 268 19 P.3d 1196 Russell Glen DAY, Plaintiff and Appellant, v. CITY OF FONTANA et al., Defendants and Respondents. No. S084616. Supreme Court of California. April 5, 2001. *458 Law Offices of Wayne McClean, Wayne McClean; Evan D. Marshall; Law Offices of J. Russsell Brown, Jr., and Kevin Campbell, Los Angeles, for Plaintiff and Appellant. Miles, Sears & E...
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Opinion Plaintiff Robert S. Kolodge appeals from the summary judgment granted in favor of defendant Michael E. Boyd in an action for damages for negligence and negligent misrepresentation in appraising certain real property. Appellant contends the trial court erred in concluding he made a “full credit bid” at a nonjudicial foreclosure sale, because the amount of his bid was less than the total ou...
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Opinion A jury convicted Gary Lawrence Labaer of arson of a structure, arson of the property of another, two counts of battery upon a police officer, and resisting an executive officer. (Pen. Code, 2 §§451, subds. (c) & (d), 243, subd. (b), 69.) The court sentenced Labaer to prison for four years on the arson of a structure count, and imposed a five-year probation term for the ...
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Opinion In 1994, Orange County filed for bankruptcy. To resolve this financial crisis and assist Orange County to emerge from bankruptcy, the California Legislature passed four bills allocating certain property and sales tax revenues to Orange County’s general fund that were previously allocated to other Orange County public agencies. Steven White, an Orange County taxpayer, brought ...
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260 B.R. 493 (2001) In re Leo G. DOLLAGA and Glorie F. Dollaga, Debtors. Juliet C. Ashton, Appellant, v. Leo G. Dollaga and Glorie F. Dollaga, Appellees. BAP No. NC-00-1147-RRyB. Bankruptcy No. 98-45855 N. Adversary No. 98-4735 AN. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted January 18, 2001. Decided March 23, 2001. *494 Juliet C. Ashton, San Jose, CA, Pro ...
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This appeal arises from a bitter sibling rivalry between two wealthy brothers, Frederick and Gordon Hanshaw, whose dispute wound up in a partnership dissolution proceeding in the federal district court. As the court-appointed receiver neared completion of his lengthy, often contentious accounting process and was preparing his report recommending the ultimate allocation of millions of dollars in as...
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244 F.3d 1145 (9th Cir. 2001) NANCY LEE FERLAND, Plaintiff-Appellant,v.CONRAD CREDIT CORP., a California corporation; GREGG A. MICHEL,PH.D., an individual; DOES 1-20, INCLUSIVE, Defendants-Appellees. No. 99-56625 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 9, 2001Filed April 5, 2001 [Copyrighted Material Omitted] Deborah L. Ray...
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Appellant Robert Silver (“Silver”) was convicted of one count of making false statements to the United States Department of Defense (“DOD”) in violation of 18 U.S.C. § 287. 1 Silver challenges Judge Keller’s failure to recuse himself from the case, the district court’s determination of the “actual loss,” and the district court’s determination of his criminal history category. We affirm in par...
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105 Cal. Rptr. 2d 771 (2001) 88 Cal. App. 4th 378 The PEOPLE, Plaintiff and Respondent, v. Patricia HAGEN, Defendant and Appellant. No. E025653. Court of Appeal, Fourth District, Division Two. April 6, 2001. William Flenniken, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, ...
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248 F.3d 832 (9th Cir. 2001) JOHN DOE I, JANE DOE, and JOHN DOE II, Plaintiffs-Appellants,v.RONALD O. OTTE and BRUCE M.BOTELHO, Defendants-Appellees. No. 99-35845 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 1, 2000Filed April 9, 2001 NOTE: SEE AMENDED OPINION AT 259 F.3d 979.[Copyrighted Material Omitted][Copyrighted Material Omitted...
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105 Cal. Rptr. 2d 773 (2001) 88 Cal. App. 4th 384 REDDING RANCHERIA, Petitioner, v. The SUPERIOR COURT of Shasta County, Respondent, Suzanne Hansard, Real Party in Interest. No. C036723. Court of Appeal, Third District. April 6, 2001. Review Denied June 13, 2001. *774 Rapport & Marston and David J. Rapport, Ukiah, for Petitioner. No appearance for Respondent. Dugan Barr & Associates, Redd...
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105 Cal. Rptr. 2d 782 (2001) 88 Cal. App. 4th 412 Jere A. JOBE, Plaintiff and Appellant, v. THE CITY OF ORANGE, Defendant and Respondent; Lutheran High School Association of Orange County, Real Party in Interest and Appellant. Nos. G026974, G027732. Court of Appeal, Fourth District, Division Three. April 10, 2001. *783 Maher & Maher and Michael K. Maher, Orange, for Plaintiff and Appellant. D...
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Opinion Introduction A jury found the defendant, William Murphy, guilty of petty theft with three prior convictions. (Pen. Code, § 666.) 1 It also found that each of the prior convictions was for first degree burglary, and thus each qualified as a “strike” for purposes of the three strikes law. (§ 667, subds. (b)-(i).) The court sentenced him to a prison term of 25 years to life. Murphy a...
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244 F.3d 1167 (9th Cir. 2001) LESLIE KOHLER,Plaintiff-Appellant,v.INTER-TEL TECHNOLOGIES,Defendant-Appellee. No. 99-15895 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued February 12, 2001Submission Deferred February 12, 2001Submitted February 20, 2001Filed April 11, 2001 Gregg Lowell McCurdy, McCurdy & Ku, Richmond, California, for the plaintiff-appellant...
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245 F.3d 1110 (9th Cir. 2001) In re: CALIFORNIA POWER EXCHANGE CORPORATIONCALIFORNIA POWER EXCHANGE CORPORATION, Petitioner,PACIFIC GAS AND ELECTRIC COMPANY; WESTERN POWER TRADING FORUM; NEW YORK MERCANTILE EXCHANGE; AUTOMATED POWER EXCHANGE, INC.; SOUTHERN ENERGY CALIFORNIA, LLC; SOUTHERN ENERGY POTRERO, LLC; SOUTHERN ENERGY DELTA, LLC; SAN DIEGO GAS AND ELECTRIC COMPANY; INDUSTRIAL CUSTOMERS...
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Opinion by Judge SCHROEDER; Concurrence by Judge SNEED *904ORDER AND AMENDED OPINION ORDER Appellants have filed a petition for rehearing that pertains to one sentence of the court’s opinion. The sentence reads: “But where a statute criminalizes conduct, the law may not be impermissibly vague in any of its applications.” Forbes v. Napolitano, 236 F.3d 1009, 1011 (9th Cir.2000). The petition for re...
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244 F.3d 1164 (9th Cir. 2001) MOHAVE VALLEY IRRIGATION & DRAINAGE DISTRICT, Plaintiff-Appellant,v.GALE A. NORTON, SECRETARY OF INTERIOR, Defendant-Appellee. No. 99-16927 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2001Filed April 11, 2001 Terrence S. Leek, Prescott, Arizona, for the plaintiffappellant. Jeffrey C. Dobbi...
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244 F.3d 1152 (9th Cir. 2001) LOCAL JOINT EXECUTIVE BOARD OF CULINARY/BARTENDER TRUST FUND; BARTENDERS UNION, LOCAL 165; CULINARY WORKERS UNION, LOCAL 226; HARVEY MCCOY; RON BYFORD, Plaintiffs-Appellants,v.LAS VEGAS SANDS, INC., dba Sands Hotel Casino, Defendant-Appellee.LOCAL JOINT EXECUTIVE BOARD OF CULINARY/BARTENDER TRUST FUND; BARTENDERS UNION, LOCAL 165; CULINARY WORKERS UNION, LOCAL 22...
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Opinion Introduction Appellant Chek Ngoun was convicted of the second degree murder of Kevin Martinez (count I), assault with a firearm on two unnamed victims (counts IV and V), being a felon in possession of a firearm (count VI), and participating in a criminal street gang (count VII). Allegations that appellant committed the offenses described in counts I, IV, and V to advance the interests...
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*442 Opinion Santa Barbara Pistachio Ranch and Maple Leaf Pistachio Ranch (plaintiffs) filed suit against Chowchilla Water District (the District), alleging irrigation water provided by the District resulted in the death of several of their mature pistachio trees. At trial, the court ruled the proper measure of damages was the diminution in the value of plaintiffs’ land and the c...
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244 F.3d 1182 (9th Cir. 2001) DOUGLAS GIEBEL, Plaintiff-Appellee,v.STEPHEN SYLVESTER, Dr., in his capacity as Chairman, Department of Humanities and Social Sciences, Montana State University, Northern Havre, MT, Defendant-Appellant. No. 99-36105 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted Feb. 14, 2001Filed April 12, 2001 [Copyrighted Mater...
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*490 Opinion The question before this court is the commencement of the statutory time period for filing a peremptory challenge to a newly assigned direct calendar judge. (Code Civ. Proc., § 170.6.) 1 We hold the time commences when the parties receive notice of the assignment. In this proceeding, defendant Motion Picture and Television Fund Hospital (defendant) pe...
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246 F.3d 1166 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.NORMAN ANTHONY KING, aka Norm King, aka Norman August Klause, Defendant-Appellant. No. 99-10478 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted Sept. 13, 2000Filed April 13, 2001 1 Note: See Amended Opinion at 257 F.3d 1013. ...
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When Fred Lieberman reached 65 years of age, he sold his business. The buyer agreed, in part, to pay him $13,600 per calendar quarter over a ten-year period for his three-year covenant not to compete. When the sale closed, Lieberman retired. Several years later, the Liebermans filed a Chapter 7 bankruptcy petition. They contended the quarterly payments were exempt from claims of their creditors...
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Opinion We granted review to decide whether a person may sue for the malicious prosecution of an action that the parties resolved through contractual arbitration. Because a contractual arbitration proceeding does not result in a favorable termination of a prior action, a necessary element of malicious prosecution, we conclude a person may not do so. I. The Facts and Procedural History In 1992, Tr...
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C. A. 6th Cir. Motion of National Association of Manufacturers for leave to file a brief as amicus curiae granted. Certiorari granted....
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C. A. 9th Cir. Certiorari granted limited to Question 1 presented by the petition....
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Opinion The doctrine of workers’ compensation exclusivity is a frequent subject of judicial tweaking. Like the law of search and seizure, the variety of fact patterns seems never ending, and each variation presents yet another opportunity for judicial review. This time we examine whether a claimant may sue her employer’s insurance carrier in superior court for what amounts to the insurer’...
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105 Cal.Rptr.2d 819 (2001) 88 Cal.App.4th 509 The PEOPLE, Plaintiff and Respondent, v. Eugene PROTSMAN, Defendant and Appellant. No. D034285. Court of Appeal, Fourth District, Division One. March 13, 2001. Review Denied June 13, 2001.[*] Roberta K. Thyfault, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. *820 Bill Lockyer, Attorney General, David P. Druliner, Ch...
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This case involves an action for damages against a railroad asserting an alleged failure to maintain adequate warning devices at a grade crossing near Columbia Falls, Montana. After appellant Stacey Thomas Lee (“Lee”) was injured in a collision with a train, he sued Burlington Northern Santa Fe (“BNSF”), the train’s owner and operator. Lee contended that the warning signs posted at the crossing...
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delivered the opinion of the Court. The California Labor Code (Code or Labor Code) authorizes the State to order withholding of payments due a contractor on a public works project if a subcontractor on the project fails to comply with certain Code requirements. The Code permits the contractor, in turn, to withhold similar sums from the subcontractor. The Court of Appeals for the Ninth Circ...
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Opinion Here we conclude that reports prepared by police officers in the performance of their duties are not protected by the attorney-client privilege. *534 The law firm of Green & Shinee attempts to appeal an order by the trial court that releases documents seized from the law film’s offices and sealed by a special master pursuant to Penal Code section 1524, subdivision (c...
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This case concerns the continuing problem of the home office deduction. We conclude, on the facts of this case, that a professional musician is entitled to deduct the expenses from the portion of her home used exclusively for musical practice. Facts and Procedural Background 1 Katia Popov is a professional violinist who performs regularly with the Los An-geles Chamber ©...
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Karen L. Brown appeals the district court’s grant of summary judgment in favor of Lucky Stores and John Hunt on her claims that she was terminated because of her alcoholism in violation of the Ameri-cans with Disabilities Act (“ADA”), the Rehabilitation Act and California’s Fair Employment and Housing Act (“FEHA”). Lucky Stores cross-appeals the district court’s dismissal of Brown’s state law c...
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244 F.3d 1191 (9th Cir. 2001) REVOCATO PALMA-ROJAS, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 97-70232 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT April 4, 2001, Submitted,*April 17, 2001 Lisa Ellen Seifert, Seifert Law Offices, Olympia, Washington, for the petitioner. Lorri L. Shealy, Office of Immigration Litigation, Civil Div...
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244 F.3d 1190 (9th Cir. 2001) JUAN ANIBAL AGUIRRE-AGUIRRE, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 99-70835 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT April 9, 2001, Submitted,1 San Francisco, CaliforniaApril 17, 2001, Filed NOTE: Also see Amended Order of July 31, 2001, at 258 F.3d 1116. Veronica Burris Valentine, Las Vegas,...
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248 F.3d 851 (9th Cir. 2001) JUSTIN TERRANCE MONROE, Plaintiff-Appellant,v.CITY OF PHOENIX, ARIZONA; DONALD SHERRARD, husband; JANE DOE SHERRARD, wife, Defendants-Appellees. No. 99-16974 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 13, 2001Filed April 17, 2001 [Copyrighted Material Omitted] Tony K. Behrens, Law Offices of Tony K. ...
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246 F.3d 1195 (9th Cir. 2001) ANNE J. HOLOHAN, Plaintiff-Appellant,v.LARRY G. MASSANARI, Acting Commissionerof SSA,* Defendant-Appellee. No. 00-16090 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted Feb. 15, 2001Filed April 17, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted] Phyllis A. Matyi, ...
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Opinion In some situations a proposed project approved by a local governmental entity subject to the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 may be appealed to the California Coastal Commission (Commission). The question presented by this appeal is whether, when such an appeal is taken to the Commission and it is the Commission which...
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In its capacity as a public employer, the state bears special constitutional burdens. Notably, the First Amendment restricts the state’s ability to fire employees who speak out on matters of public concern. But this doctrine is limited; after all, “the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick ...
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Petitioner argues that the BIA erred by denying her request for asylum and withholding of deportation. We must affirm the BIA-if its decision is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)(quoting 8 U.S.C. § 1105a(a)(4)). Petitioner Rodas-Mendoza...
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Derek Mahone appeals the district court’s summary judgment forfeiting $22,474.00 to the United States government pursuant to 21 U.S.C. § 881(a)(6), which statute permits the government to seize and forfeit money exchanged for or intended to be exchanged for illegal controlled substances. Mahone contends the government failed to establish a connection between the $22,474.00 and illegal drug activi...
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This case involves exemptions from state and federal overtime requirements for bona fide administrative employees. Jay Webster (‘Webster”) is a union field representative employed by the Public School Employees of Washington, Inc. (“PSE”). Webster negotiates collective bargaining agreements and handles grievances for “bargaining units” composed of local *912 school district employees. Webster c...
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We considered this appeal en banc to determine whether a violation of California Health and Safety Code § 11360(a) constitutes an aggravated felony for the purposes of sentencing pursuant to United *907 States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A). We conclude that it does not and reverse the judgment of the district court. I Javier Rivera-Sanchez...
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Barry Meyer, Dan Sellers, Richard Ri-zotto (“Employees”), and Southern California IBEW-NECA Trust Funds (“Trusts”),( the administrators of several employee benefit plans associated with unions which represent employees,1 are seeking to collect money owed for work performed on a public construction project using California’s stop notice and payment bond remedies. The district court found ERISA pree...
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*575 Opinion Background The Howard Gunty Profit Sharing Plan (the Plan) commenced this action in 1998 on behalf of itself and all others similarly situated, against Bank Plus Corporation, its chief executive officer, and its chief financial officer. The original complaint charged negligent misrepresentation, common law fraud, deceit under Civil Code sections 1709 and 1710, a...
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*586 Opinion Appellant, a high school student, had a “razor blade” in his wallet while he was on the high school’s grounds. The juvenile court found true an allegation that appellant had possessed “a razor with an unguarded blade” on school grounds in violation of Penal Code section 626.10, subdivision (a). The court issued an ordering granting appellant probation without wardshi...
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OPINION The court dismissed a complaint as untimely on a motion that must be treated as a motion for summary judgment. We hold that substantial evidence rebutted the presumption that the clerk’s file stamp accurately recorded when the complaint was filed, which left a genuine issue of material fact that precluded summary judgment. We REVERSE and REMAND. FACTS Creditor Sarah...
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106 Cal.Rptr.2d 1 (2001) 88 Cal.App.4th 595 The RATCLIFF ARCHITECTS, Cross-Complainant and Appellant, v. VANIR CONSTRUCTION MANAGEMENT, INC., et al., Cross-Defendants and Respondents. No. A089533. Court of Appeal, First District, Division Two. March 23, 2001. *3 Long & Levit, Los Angeles, J. Michael Higginbotham, Richard J. Sciaroni, Bruce N. Furukawa, San Francisco, for Cross-Complainant and...
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Opinion Defendant Michael James Lavin appeals from a judgment of conviction entered after a no contest plea. He obtained a certificate of probable cause from the trial court to appeal the denial of his motion to dismiss the charges against him for an alleged failure to comply with the Interstate Agreement on Detainers, codified by Penal Code section 1389. 1 We affirm. Procedural History A...
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Defendants Mario Silva, Jorge Zepeda-Medrano, and Alejandro Aguilar-Espinoza challenge their convictions. They contend that the district court erred in denying their motions to suppress evidence gathered by police during an investigation of a conspiracy to manufacture and distribute methamphetamine. For the reasons dis *1053 cussed below, we hold that the police did not violate the...
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Maria Ramos (“Ms.Ramos”) and Jessica Ramos (“Miss Ramos”), mother and daughter citizens of Mexico, petition for review of the decision of the Board of Immigration Appeals (“BIA”), reversing the Immigration Judge’s (“IJ”) order and denying their application for suspension of deportation under section 244(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1254(a)(1). The Ramoses contend tha...
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248 F.3d 863 (9th Cir. 2001) SUZANNE C. COSTO, as Personal Representative for Nollie P. Costo; PEDRO COSTO, husband; ROSA COSTO, wife; JEFFREY GRAHAM, as Personal Representative for Christopher J. Graham, Plaintiffs-Appellants,andNOLLIE P. COSTO; CHRISTOPHER J. GRAHAM, Plaintiffs,v.UNITED STATES OF AMERICA, Defendant-Appellee. No. 99-36101 UNITED STATES COURT OF APPEALS FOR ...
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532 U.S. 268 (2001) CLARK COUNTY SCHOOL DISTRICT v. BREEDEN No. 00-866. United States Supreme Court. Decided April 23, 2001. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *270 Per Curiam. Under Title VII of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S. C. § 2000e—3(a), it is unlawful "for an employer to discriminate against any of...
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C, A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Lujan v. G & G Fire Sprinklers, Inc., ante, p. 189....
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*626Opinion Ashok Israni filed a petition for writ of mandate after the trial court denied his application to vacate its prior order granting the City of San Diego’s (City) ex parte application in a condemnation action for an order of immediate possession (OIP) of his property. On the effective date of the OIP, and for some 10 years previously, the property had been leased to the Vietnam Veterans...
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We consider in this appeal the scope of our review of due process claims under section 309(c)(4)(E) of the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”). In this case, because Torres-Aguilar has failed to allege a colorable due process claim, we dismiss his petition for review for lack of jurisdiction. I J. Jesus Torres-Aguila...
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246 F.3d 1248 (9th Cir. 2001) BARBARA JACKSON, SUCCESSOR-IN- INTEREST, SURVIVING WIFE AND HEIR OF ROBERT JACKSON, DECEASED; SANDRA JACKSON, A MINOR, BY THROUGH HER GUARDIAN AD LITEM, MELINDA DALE PLAINTIFFS-APPELLANTS,v.EAST BAY HOSPITAL; REDBUD COMMUNITY HOSPITAL DISTRICT; MIGUEL M. OLLANDA; SPENCER STEELE; ADVENTIST HEALTH, INC. DEFENDANTS-APPELLEES. No. 98-17152 UNITED STATES COURT ...
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249 F.3d 1101 (9th Cir. 2001) CABAZON BAND OF MISSION INDIANS; PAUL D. HARE, PLAINTIFFS-APPELLANTS,v.LARRY D. SMITH, INDIVIDUALLY AND IN HIS CAPACITY AS SHERIFF OF RIVERSIDE COUNTY; RONALD F. DYE, INDIVIDUALLY AND IN HIS CAPACITY AS CAPTAIN, INDIO STATION, RIVERSIDE COUNTY SHERIFF'S DEPARTMENT; COUNTY OF RIVERSIDE, DEFENDANTS-APPELLEES. No. 99-55229 UNITED STATES COURT OF APPEALS FOR T...
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delivered the opinion of the Court. This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. I The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the director, accepted grants of financial assistance from the United States Department of Justice (D...
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delivered the opinion of the Court. The question is whether the Fourth Amendment forbids, n warrantless arrest for a minor criminal offense, such as a misdemeanor seatbelt violation punishable only by a fine. We hold that it does nbt. I A In Texas, if a ear is equipped with safety belts, a front-seat passenger must wear one, Tex. Transp. Code Ann. § 545.413(a) (1999), and the driver must secure an...
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*652 Opinion Luke W. appeals from an order sustaining a supplemental petition (Welf. & Inst. Code, § 602) that alleged he possessed a concealed dirk or dagger. (Pen. Code, § 12020, subd. (a).) He contends the knife found in his possession is not a statutorily prohibited dirk or dagger. Background Appellant was declared a ward of the juvenile court and placed on probatio...
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Opinion In 1972, our Supreme Court held that when a patient gives permission to a doctor to perform one type of surgical procedure but the doctor performs a substantially different operation, “the requisite element of deliberate intent to deviate from the consent given is present” *661 and a battery has been committed. (Cobbs v. Grant (1972) 8 Cal.3d 229...
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ORDER; Dissent by Chief Judge SCHROEDER. ORDER The petition for rehearing is GRANTED and the suggestion for rehearing en banc is DENIED. The opinion filed on August 22, 2000, published at 222 F.3d 1210 (9th Cir.2000) is WITHDRAWN. Submission of this case is DEFERRED pending a decision by the United States Supreme Court in Walker v. Artuz, 208 F.3d 357 (2d Cir.), cert. granted sub nom Duncan v. Wal...
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OPINION Introduction The issue before the Court is whether Logitech, Inc. may successfully invoke § 365(n) of the Bankruptcy Code to enforce a license in scanner technology. Although Logitech contracted prepetition for the right to the license upon default on the debtor’s payment obligation, Logitech’s rights under the agreement were frozen when Storm Technology, Inc. filed its b...
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Manuel Romo-Romo appeals his conviction and sentence for being found in the United States after he was deported therefrom. See 8 U.S.C. § 1326. He asserts that the district court erroneously instructed the jury that he did not actually have to leave United States soil in order to be deported. We agree and reverse. BACKGROUND In 1995, a warrant of deportation was issued for ...
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247 F.3d 953 (9th Cir. 2001) JOSEPH ORSINI, Plaintiff-Appellant,v.O/S SEABROOKE O.N., 614,410 her engines, gear, tackle furniture and appurtenances in rem; SEABROOKE, INC., an Alaska corporation; WILLARD S. FERRIS, Defendants-Appellees. No. 99-35588 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2001,Filed April 24, 2001 [Copyrig...
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247 F.3d 966 (9th Cir. 2001) CITY OF AUBURN; CITY OF BREMERTON; CITY OF DES MOINES; CITY OF FEDERAL WAY; A MUNICIPALITY; CITY OF LAKEWOOD; CITY OF MEDINA; CITY OF OLYMPIA; CITY OF PUYALLUP; CITY OF RENTON; CITY OF SEATAC; CITY OF TACOMA; CITY OF TUKWILA; CITY OF UNIVERSITY PLACE; CITY OF VANCOUVER, Plaintiffs-Appellees-Cross-Appellants,v.QWEST CORPORATION, Defendant-Appellant-Cross-Appell...
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247 F.3d 986 (9th Cir. 2001) FAR OUT PRODUCTIONS, INC., a California corporation, Plaintiff-Appellee,v.LEE OSKAR; MORRIS DICKERSON; BRAN AITCHISON; BRUCE SOLAR, individually and d/b/a ABSOLUTE ARTISTS, Defendants,andHOWARD SCOTT, Defendant-Counter-Claimant-Appellant,HAROLD BROWN,Plaintiff-Cross-Defendant-Appellant,v.JERRY GOLDSTEIN, Defendant-Appellee. No. 99-56739 UNITED STATES COU...
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Opinion Real party in interest Atchison, Topeka & Santa Fe Railway (Santa Fe) is a public utility that owns the Hobart Yard, an “intermodal” facility in which large shipping containers are transferred from railroad cars to trucks and vice versa. The facility is located partially within the city limits of petitioner City of Vernon (Vernon). Santa Fe has undertaken to expand *674the size and capaci...
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Opinion Introduction The primary issue raised on this appeal is one of insurance coverage. Liberty Mutual Fire Insurance Company (Liberty) issued two policies to Michael McKenzie (McKenzie). Each required that the insured own the covered vehicle. Neither policy defined “owned.” McKenzie submitted claims on each policy based upon the theft of his truck. It is undisputed that the stole...
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delivered the opinion of the Court, except as to Parts III-B and III-C.† For the second time this Term, we are faced with the question whether federal posteonviction relief is available when a prisoner challenges a current sentence on the ground that it was enhanced based'on an allegedly unconstitutional prior conviction for which the petitioner is no longer in custody. In Daniels v. United States...
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OVERVIEW Anatoly Aelkseevich Matsuk petitions for review of the order for his removal issued by the Board of Immigration Appeals (BIA) and the denial of his request for withholding of removal. Pursuant to 8 U.S.C. § 1252, we lack jurisdiction to review the order of removal and the denial of withholding. Thus, we dismiss the petition. BACKGROUND In late 1998, the INS instituted removal proce...
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Opinion Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, § 25249.5 et seq.), provides for citizen enforcement if applicable government agencies fail to undertake enforcement after service of an appropriate notice of violation. Here, appellants sent notices relating to alleged violations by various commercial establishments throughout the state...
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Opinion Appellant Terry Herrera appeals from an order denying his petition for writ of mandate in this proceeding to revoke his real estate license. The Department of Real Estate (Department) revoked Herrera’s real estate license pursuant to Business and Professions Code section 10177, subdivision (f),1 based on the suspension of Herrera’s law license. The Department’s disciplinary accusation was ...
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Opinion Defendant County of Santa Barbara (County) approved a resort hotel development on a 73-acre beachfront parcel north of the City of Santa Barbara. The parcel is within the boundaries of plaintiff Embarcadero Municipal Improvement District (EMID). The County conditioned its approval of the hotel on the annexation of the parcel to two other special districts, defendants Goleta West Sanitary ...
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106 Cal. Rptr. 2d 80 (2001) 25 Cal. 4th 327 21 P.3d 758 The PEOPLE, Plaintiff and Respondent, v. Joel Robert TOBIAS, Defendant and Appellant. No. S085471. Supreme Court of California. April 26, 2001. Rehearing Denied June 13, 2001. *81 Dallas Sacher, Santa Clara, under appointment by the Supreme Court; and Chris R. Redburn, San Francisco, under appointment by the Court of Appeal, for Defendant an...
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248 F.3d 899 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.ONE 1997 TOYOTA LAND CRUISER, California License No. 3WMX630, VIN JT3HJ85J9Vo178775, its tools and appurtenances, Defendant, and MARTHA IRENE FEREYDOUNI, Claimant-Appellant. No. 99-55661 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 5, 2000April 26, 2001, Filed ...
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Baby Tam & Co., Inc. (Baby Tam) appeals the order of the district court denying it relief in its suit against the City of Las Vegas (the City) in regard to the City’s zoning and licensing scheme. We affirm the judgment of the district court. BACKGROUND AND PROCEDURAL HISTORY The prior history of this case is set out in our two earlier decisions, Baby Tam & *1005 ...
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249 F.3d 832 (9th Cir. 2001) In re: LARRY'S APARTMENT, L.L.C., Debtor.MICHAEL A. GALAM, Appellant,v.MICHAEL W. CARMEL, Chapter 11 Trustee for the Bankruptcy Estate of Larry's Apartment, L.L.C.; ND DUCO CORPORATION, a Nevada corporation; LARRY JARNAGIN, husband; LINDA JARNAGIN, wife, Appellees. No. 00-15728 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitt...
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In this case, we address whether a police officer, when conducting a patdown search for weapons diming an investigatory stop, may lawfully go beyond a patdown and move or shake a small box in a suspect’s clothes to determine its contents. Defendant Mark Miles appeals the district court’s denial of his motion to suppress evidence, including a gun, bullets, and his statements, arguing that the poli...
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248 F.3d 907 (9th Cir. 2001) KENNETH CRAIG KRULL, Petitioner,v.SECURITIES AND EXCHANGE COMMISSION, Respondent. No. 99-70290 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 12, 2001Filed April 26, 2001 Frederick Davis Huebner, Cable, Langenbach, Kinerk & Bauer, LLP, Seattle, Washington, for the petitioner-appellant. Allan A. Ca...
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OPINION This case requires us to decide whether an entry of judgment triggers the notice of appeal period for a prior interlocutory order granting, but not disbursing, attorney’s fees. We conclude that it does. Background This litigation began in 1995 as a claim brought by subcontractors for payment for work completed on federal public works projects under the Miller Act, 40 U.S.C. § 270a et seq....
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Opinion The Newhall Land and Farming Company (Newhall) appeals from a judgment entered after the trial court granted summary judgment in favor of McCarthy Construction (McCarthy). We affirm. Contentions Newhall contends that the trial court erred in granting summary judgment because: (1) the complaint alleges defects which implicate the work of McCarthy; (2) McCarthy is not the ...
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Opinion American Surety Insurance Co. (American) appeals from an order that denied its motion to vacate a summary judgment entered on a forfeiture of a bail bond which American provided for criminal defendant Jose Garcia Magana (Magana). The bail was forfeited when Magana failed to appear for sentencing after the trial court had previously indicated to Magana that he would be sentenced to the m...
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*803 Opinion In 1998 the City of Los Angeles, through the Los Angeles Police Department (Police Department), refused respondent Arthur S. Gifford’s application for a concealed firearm license. (Pen. Code, § 12050.) Gifford filed a petition for writ of mandate (Code Civ. Proc., § 1085), alleging that the Police Department was obligated to give him the license pursuant to a stipulated judgment ...
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Opinion In this family law move-away case, the court permitted two of four children to move away. As we shall explain, a family law court may enter an order which has the effect of separating siblings only when compelling circumstances dictate that such separation is in the children’s best interest. Christopher Brett Williams (Father) and Jamia Sue Williams (Mother) dissolved their marriage and a...
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We affirm the district court’s judgment and adopt the portions of its opinion, Doe v. Unocal, 27 F.Supp.2d 1174 (C.D.Cal.1998), appearing in the Appendix as our own. See Appendix infra. Because appellants have failed to demonstrate by the “clearest showing that denial of discovery [has] resulted] in actual and substantial prejudice,” the district court did not abuse its discretion in denying disco...
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106 Cal. Rptr. 2d 93 (2001) 25 Cal. 4th 345 21 P.3d 769 The PEOPLE, Plaintiff and Respondent, v. Mauricio Rodriguez SILVA, Defendant and Appellant. No. S004727. Supreme Court of California. April 30, 2001. *99 Fern M. Laethem and Lynne S. Coffin, State Public Defenders, under appointment by the Supreme Court, Joel Kirshenbaum, Kathleen M. Scheidel, Jamilla Moore and William T. Lowe, Deputy State ...
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106 Cal. Rptr. 2d 126 (2001) 25 Cal. 4th 387 21 P.3d 797 COMEDY III PRODUCTIONS, INC., Plaintiff and Respondent, v. GARY SADERUP, INC., et al., Defendants and Appellants. No. S076061. Supreme Court of California. April 30, 2001. *128 Cooper, Kardaras & Scharf, Brand Cooper, Pasadena, Victor E. Aguilera, Sherman Oaks, James C. Potepan, Edward C. Wilde and Stuart L. Brody, Sacramento, for Defen...
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Opinion Introduction Appellant challenges the finding of a probation violation for the violation of Penal Code section 311.11 on the grounds that the statute is unconstitutional, allowing conviction when the minor “appears” to be under age 18, that expert testimony of “apparent age” is inadmissible and that there is insufficient evidence that appellant knew the actors in the video clips were ...
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Opinion This case presents the question of whether a tenant who takes an assignment of a mortgaged ground lease, expressly assuming its obligations, remains liable to the lessor after foreclosure of the mortgage. Vallely Investments, L.P. (Vallely), the lessor, sued for a declaration that BancAmerica Commercial Corporation (BACC), the assignee, was bound by the lease. Vallely argues the t...
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248 F.3d 931 (9th Cir. 2001) CHARLOTTE LAUGHON, Plaintiff-Appellant,v.INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS & ALLIED CRAFTS OF THE UNITED STATES AND CANADA, Defendant-Appellee. No. 99-15812 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 15, 2000Filed April 30, 2001 Roderick P. B...
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Opinion In this appeal, we consider whether the fine described under Penal Code section 1202.4, subdivision (a)(2), 1 which is to be “in the form of a penalty assessment in accordance with Section 1464,” requires an underlying fine upon which it can be assessed. Defendant Linda Anne Allen pleaded no contest to one count of burglary. 2 Sentenced to the upper term of six years, she was also...
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Opinion This appeal requires us to decide whether Business and Professions Code section 2305 1 —a more specific statute—impliedly repeals section 141—a more general one that covers the same subject. Section 2305, the more specific statute, mandates disciplinary action against a medical licensee based on out-of-state discipline that “would have been grounds for discip...
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Opinion Janice Lee Brimberry White,1 as successor in interest for Susan Ann Brimberry Katzberg (hereinafter collectively referred to as *977mother), appeals from an order granting the motion of respondent Richard W. Katzberg (father) to modify his child support obligations. Mother claims that the trial court failed to follow the statewide uniform guideline (hereinafter the uniform guideline) for ...
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Opinion Appellant Scarlett O’Casey was charged by amended information filed April 6, 1999, with four felony counts: making a knowingly false material statement for the purpose of obtaining workers’ compensation benefits as defined in Labor Code section 3207 (Ins. Code, § 1871.4, subd. (a)(1)) (count 1); presenting a knowingly false written or oral material statement in support of a workers’ compen...
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OPINION I Maria Pinto appeals the denial of her claims for Social Security disability benefits under 42 U.S.C. § 423 and for Supplemental Social Security Income disability *843 benefits under 42 U.S.C. § 1382. Although the administrative law judge (“ALJ”) found that Pinto speaks very little English and that she cannot bend or stoop more than occasionally, he concluded th...
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248 F.3d 815 (9th Cir. 2001) WILLIAM J. PAWLYK, PETITIONER-APPELLANT,v.TANA WOOD, RESPONDENT-APPELLEE. No. 98-35026 U.S. Court of Appeals, Ninth Circuit Argued and Submitted January 4, 1999January 19, 2001As amended May 2, 2001. 1 Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding D.C. N...
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Opinion In this dissolution action, the trial court ordered the husband to pay child support. Sometime later, the wife asked the husband for an increase in child support. They resolved the matter without the involvement of the court. The husband agreed to higher payments. The agreement was reduced to writing, which the husband and wife signed. While the agreement was still in effect, the husband ...
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Opinion We granted review in this case, limited to the issue whether state law claims against a health maintenance organization (HMO), arising out of its refusal to provide services under a Medicare-subsidized health plan, fall within the exclusive review provisions of the Medicare Act requiring exhaustion of administrative remedies. (42 U.S.C. § 1395 et seq.) *415As will appear, some disagreemen...
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La Reunion Francaise (“La Reunion”), a French insurance company, appeals a district court order dismissing its declaratory judgment action for lack of subject matter jurisdiction. The district court held there was no admiralty jurisdiction under 28 U.S.C. § 1333 over the disputed marine insurance policy because La Reunion failed to prove that the insurance contract was “wholly maritime in natur...
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532 U.S. 661 (2001) PGA TOUR, INC. v. MARTIN No. 00-24. United States Supreme Court. Argued January 17, 2001. Decided May 29, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *662 *663 *664 Stevens, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion,...
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PER CURIAM Opinion; Dissent by Judge NOONAN. ORDER A majority of the panel has voted to deny the petition for panel rehearing filed on behalf of the United States. Our colleague Judge Noonan would grant the petition for rehearing on the ground that the speedy trial clock began to run anew for Hardeman on the date that one of his co-defendants was arraigned, which was 129 days after Hardeman’s own ...
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Dung Van Chau petitions for review of a decision of the Board of Immigration Appeals (BIA), which reversed the determination of the Immigration Judge (IJ) terminating deportation proceedings. The IJ held that the Immigration and Naturalization Service (INS) failed to meet its threshold burden of establishing that Chau is an alien. The BIA, concluding that the INS had met its burden, ordered Cha...
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delivered the opinion of the Court. The Piscataqua River lies at the southeastern end of New Hampshire’s boundary with Maine. The river begins at the headwaters of Salmon Falls and runs seaward into Portsmouth Harbor (also known as' Piscataqua Harbor). On March 6, 2000, New Hampshire brought this original action against Maine, claiming that the Piscataqua River boundary runs along the Main...
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Opinion The Code of Civil Procedure empowers arbitrators in certain cases to impose the discovery sanctions available in superior court. In this case, we hold that an arbitrator’s refusal to impose a discovery sanction provides no ground to vacate the arbitration award, even if the sanction is mandatory under the discovery statutes. Maureen H. Alexander appeals from a judgment confir...
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*1095 Opinion Plainstiffs and respondents Hing Kwan Lo and Yuk Lin Fung were the owners of a condominium in Malibu. Appellant Peter Jensen (as trustee of the Las Vírgenes Trust) and Kevin Ko 1 bought the condominium at a nonjudicial foreclosure sale. On respondents’ complaint, the trial court found that Jensen and Ko violated Civil Code 2 section 2924h, subd...
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Opinion On the evening of September 16, 1997, Officer Gary Deming of the Oroville Police Department stopped a vehicle because the vehicle had no registration stickers on the rear license plate. Defendant Thomas Robert Bush was the driver and sole occupant of the car. Officer Deming radioed the dispatcher to check the vehicle registration and defendant’s license. Deming learned that t...
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Opinion Jason Dan Taylor petitions for writ of habeas corpus, claiming the trial court failed to take a Valid waiver of his right to a jury trial before the court determined he had sustained prior serious felony convictions within the meaning of the three strikes law. (Pen. Code, § 667, subds. (b)-(i).)1 Taylor asserts the United States Supreme Court decision in Apprendi v. New Jersey (2000) 530 U...
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PER CURIAM Opinion; Dissent by Judge TALLMAN. We consider the circumstances under which an unpublished disposition may be cited for the purpose of providing notice under Ninth Circuit Rule 36 — 3(b). 1. Tino Sorchini fled from police after unsuccessfully attempting to steal a car. A police dog discovered him beneath a parked truck and bit him. After his arrest, Sorchini sued the City of Covina for...
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Appellant Carl Bradley Johansson (“Jo-hansson”) pled guilty to a conspiracy to violate federal regulations which limit the number of hours operators of motor carriers may drive, and to conceal such violations by falsifying records required to be maintained by the United States Department of Transportation (“DOT”). He appeals the district court’s enhancement of his sentence pursuant to U.S.S.G. § ...
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250 F.3d 668 (9th Cir. 2001) MARY SANDERS LEE, INDIVIDUALLY AND AS THE CONSERVATOR FOR THE ESTATE OF KERRY SANDERS; KERRY SANDERS, PLAINTIFFS-APPELLANTS,v.CITY OF LOS ANGELES; A. HADDOCK, OFFICER, #25553; MCCALLESTER, DETECTIVE, #233680; HOLMSTROM, DETECTIVE, #320622; NEW YORK DEPARTMENT OF CORRECTIONAL SERVICES, DEFENDANTS-APPELLEES. No. 98-55807 UNITED STATES COURT OF APPEALS FOR THE...
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106 Cal. Rptr. 2d 295 (2001) 25 Cal. 4th 441 21 P.3d 1209 The PEOPLE, Plaintiff and Respondent, v. Arasheik Wesley WILLIAMS, Defendant and Appellant. No. S066106. Supreme Court of California. May 7, 2001. *296 Barry P. Helft, San Francisco, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant...
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Opinion Defendant Roshay D. Cleveland was convicted, following a jury trial, of two counts of attempted second degree robbery. (Pen. Code, §§ 664, 211.) He argued on appeal that the trial court erred in discharging a juror, during deliberations, for failing to deliberate and for prejudging the case. The Court of Appeal reversed the judgment of conviction. We granted the People’s petition for revie...
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Opinion Defendant Rafael Garcia Alvarez, Jr., appeals from judgment entered against him for murder (count I), 1 assault with a firearm (count II), 2 and resisting a peace officer (count III). 3 The jury further found true allegations that, as to count I, defendant intentionally discharged a firearm causing death 4 (firearm enhancement) and, as to count II, he personally used a firearm. ...
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Opinion Bill and Kimberly B., the parents of the minor Nicholas B., appeal from the jurisdictional and dispositional orders of the juvenile *1129court adjudging the minor a dependent child pursuant to Welfare and Institutions Code section 300, subdivision (b),1 removing the child from their custody and ordering family reunification services. Under subdivision (b) of section 300, it must be proved ...
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248 F.3d 938 (9th Cir. 2001) SE JONG NOH, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 98-70982 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 5, 2000Filed May 7, 2001 Stuart I. Folinsky, Los Angeles, California, for the petitioner. Nelda C. Reyna, Office of Immigration Litigation, Civil Division, United Stat...
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David R. Hawkins appeals from the district court’s order affirming the magistrate judge’s denial of his motion to suppress evidence obtained as the result of the war-rantless stop of his truck as he was about to leave McClellan Air Force Base (“McClellan”). He contends that the McClellan military police officers who stopped his truck violated his Fourth Amendment rights because the Government f...
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Gumesindo Montano appeals the sentence imposed by the district court following his guilty plea to one count of a conspiracy to smuggle merchandise and introduce unapproved drugs into interstate commerce, in violation of 18 U.S.C. §§ 371 and 545, and 21 U.S.C. §§ 331(d) and 333(a)(2). The district court sentenced Montano to 21 months’ imprisonment. Montano contends that the district court erred in...
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250 F.3d 1234 (9th Cir. 2001) FARMERS INSURANCE EXCHANGE, AN INTER-INSURANCE EXCHANGE, PLAINTIFF,v.LAW OFFICES OF CONRADO JOE SAYAS, JR., ESQ.; QUISENBERRY & KABATECK, LLP, DEFENDANTS-APPELLEES, NARENDRA DESAI, AN INDIVIDUAL; BELA DESAI, AN INDIVIDUAL, DEFENDANTS-CROSS-DEFENDANTS-APPELLANTS, AND TAYLOR MILLER & AMES; UNITED STATES SMALL BUSINESS ADMINISTRATION; CITY OF SANTA MONICA; DO...
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249 F.3d 862 (9th Cir. 2001) GEORGE H. ROBINSON, PLAINTIFF-APPELLEE,v.KINGSTON W. PRUNTY, WARDEN, CALIPATRIA STATE PRISON, CALIFORNIA; SILVIA HUERTA-GARCIA, CHIEF DEPUTY WARDEN; A. TUTT, CAPTAIN; G.J. JANDA, CORRECTIONAL LIEUTENANT; D.L. FISH, CORRECTIONAL SERGEANT; M.E. ORTIZ, CORRECTIONAL SERGEANT; W. BRUMBAUGH, CORRECTIONAL OFFICER; RUBEN R. ROSAS, CORRECTIONAL OFFICER; ARMANDO F. VALENZUEL...
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249 F.3d 1180 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.JUAN MANUEL MURO-INCLAN, DEFENDANT-APPELLANT. No. 00-50016 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2001Filed May 8, 2001 1 Maria Elena Stratton, Federal Public Defender, Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California...
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We must decide whether a state university may classify an alien temporary non-immigrant visa holder student as a nonresident for tuition purposes. I Nicole Carlson, a Canadian citizen, entered the United States in 1996 under a “TD” nonimmigrant visa and has lived in California since that time. Under the terms of the North American Free Trade Agreement (“NAFTA”), a TD visa holder is authorized to e...
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248 F.3d 1197 (9th Cir. 2001) ANDRE BRIGHAM YOUNG, PETITIONER-APPELLANT,v.MARK SELING, SUPERINTENDENT OF THE SPECIAL COMMITMENT CENTER, RESPONDENT-APPELLEE. No. 98-35377 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed May 8, 2001 1 On Remand from the United States Supreme Court. D.C. No. CV-94-00480-JCC 2 Before: Harry Pregerson and...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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UNUM Life Insurance Company of America (“UNUM”) appeals a bench trial judgment and consequent attorneys’ fee award in favor of John Dishman, an ERISA plan participant and benefits claimant. On cross-appeal, Dishman asserts that the district court erroneously dismissed as preempted his state law tort claim. We affirm in part and reverse in part. I. FACTS AND PROCEEDINGS BELOW John Dishman was Execu...
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The Washington Court of Appeals appointed new counsel to represent convicted defendant Reno Tamalini while his appeal was pending despite Tamalini’s Sixth Amendment objection to the substitution, and despite his original court-appointed appellate lawyer’s willingness to continue pro bono. In this appeal, we must decide two issues: first, whether we have jurisdiction to entertain a challenge pre...
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John Simeonoff (“Simeonoff’) injured his foot while crab fishing on a commercial vessel, the F/V SAGA (“SAGA”). Simeo-noff brought a claim pursuant to the Jones Act, 46 U.S.C. § 688 et seq., and general maritime law against the SAGA and shipowners, Clare and Todd Hiner (“Hiners”) claiming negligence and unseaworthiness. After a bench trial, the district court found the SAGA and the Hiners (“App...
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In this appeal, we must decide what the words “termination without cause” mean in the context of a stock option contract between an employer and employee. The question is whether the employer, who retains discretion to construe the contract, can define the word “cause” to mean something other than its ordinary meaning without informing the employee that the ordinary meaning is irrelevant. Under...
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Opinion This appeal is from an order awarding attorney fees and costs to respondent Warren Lee. Lee’s original request for fees and costs was denied by the trial court as untimely. Almost six months after the court’s order was entered, Lee sought relief under section 473 of the Code of Civil *1189 Procedure (hereafter section 473), which was granted. Appellant Wells Fargo Ban...
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*1142 Opinion John S., father of the minor, appeals from the judgment of the juvenile court adjudging the minor a dependent and adopting a reunification plan. (Welf. & Inst. Code, §§ 358, 395 [further undesignated statutory references are to this code].) Appellant contends the juvenile court erred in interpreting section 355.1, subdivision (d) so as to find that his status as a r...
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Opinion Academic catfighting or anti-Semitism? Dr. Wendy Slatkin claims the University of Redlands (the University) refused to grant her *1150 tenure because she is Jewish. The University responds that it refused to grant her tenure because of perceived deficiencies in her teaching. Unfortunately for the University, there was evidence that several of the people involved in th...
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We must decide whether the bankruptcy court was correct to give preclusive effect to an issue raised in a prior state court action. Because we conclude that the state court’s treatment of the issue in question does not satisfy California’s threshold requirements for the application of collateral estoppel, we reverse and remand for a nondischargeability proceeding. Background Donald Kobrin, a ...
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We must decide whether the bankruptcy court was correct to give preclusive effect to an issue raised in a prior state court proceeding. Because we conclude that the state court’s treatment of the issue in question satisfies California’s threshold requirements for the application of collateral estoppel, and because we conclude that application of collateral estoppel in this context would further...
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Kevin Matthews appeals the District Court’s summary judgment in favor of the University of Oregon in his action for damages and equitable relief. Matthews claims that the University violated state and federal law in denying him indefinite tenure upon the completion of his sixth year as an annual appointee to the faculty. After the correctness of the summary judgment had been briefed and argued in ...
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248 F.3d 1201 (9th Cir. 2001) WASHINGTON LEGAL FOUNDATION; ALLEN D. BROWN; DENNIS H. DAUGS; GREG HAYES; L. DIAN MAXWELL, Plaintiffs-Appellants,v.LEGAL FOUNDATION OF WASHINGTON; KEVIN F. KELLY; BARBARA DURHAM, CHIEF JUSTICE; GERRY L. ALEXANDER, JUSTICE; JAMES M. DOLLIVER, JUSTICE; RICHARD P. GUY, JUSTICE; CHARLES WAYNE JOHNSON, JUSTICE; BARBARA A. MADSEN, JUSTICE; CHARLES Z. SMITH, JUSTICE; PHI...
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248 F.3d 1201 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.JODY MYESHA ORSO, Defendant-Appellant. No. 99-50328 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT May 9, 2001 DC No. CR-98-24-LGB (Central California) ORDER BEFORE: SCHROEDER, Chief Judge. 1 Upon the vote of a majority of nonrecused regular active judges ...
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249 F.3d 921 (9th Cir. 2001) DAWN CASE, PLAINTIFF-APPELLANT,v.KITSAP COUNTY SHERIFF'S DEPARTMENT; KITSAP COUNTY; KITSAP COUNTY PROSECUTOR'S OFFICE; OFFICER LAFRANCE, A KITSAP COUNTY SHERIFF'S DEPARTMENT POLICE OFFICER; DEPUTY BALL, A KITSAP SHERIFF'S DEPARTMENT OFFICER; DEPUTY BERGENSON, A KITSAP COUNTY SHERIFF'S DEPARTMENT OFFICER; DEPUTY BURROWS, A KITSAP COUNTY SHERIFF'S DEPARTMENT OFFICER ...
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*1313 Opinion Statement of the Case Defendant was charged in a four-count information as follows: count 1, a violation of Penal Code 1 section 211, robbery; count 2, a violation of section 646.9, stalking; count 3, a violation of section 422, making a terrorist threat; and count 4, a violation of section 245, assault with a deadly weapon. It was further alleged that counts 1 and 4 were se...
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Opinion In this case the trial court enjoined 28 named members, including David A. Englebrecht, Jr., and all other members of the Posole street gang from engaging in various activities, e.g., possessing weapons, associating with other gang members, within a designated area of the City of Oceanside. Englebrecht appeals, arguing the trial court erred in denying him a trial by jury on the is...
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106 Cal.Rptr.2d 535 (2001) 25 Cal.4th 489 22 P.3d 313 BLUE RIDGE INSURANCE COMPANY, Plaintiff and Appellant, v. Brigitte JACOBSEN et al., Defendants and Appellants. No. S083934. Supreme Court of California. May 10, 2001. *536 McCormick, Barstow, Sheppard, Wayte & Carruth, James P. Wagoner, Wendy S. Lloyd and Paul J. O'Rourke, Fresno, for Plaintiff and Appellant. Horvitz & Levy, Peter Abra...
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250 F.3d 716 (9th Cir. 2001) LAW OFFICES OF JONATHAN A. STEIN, PLAINTIFF, v. CADLE COMPANY; BRUCE WILBANKS; FUERTE CORPORATION, DBA QUICKSILVER AIRCRAFT; RONALD J. MANDELL, DEFENDANTS, AND UNITED STATES OF AMERICA, DEFENDANT-APPELLEE,v.RANDALL WELTY, DEFENDANT-APPELLANT. No. 99-56751 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 17, 2001Filed May 1...
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The bankruptcy code excludes from discharge debt that is “for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss.” 11 U.S.C. § 523(a)(7). In this case, we must decide whether the costs of attorney disciplinary proceedings brought by the State Bar of California (State Bar) are dischargeable in Chapter 7 bankrupt...
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The prospective buyer of a parcel of property brought this action against the prospective seller for breach of an agreement to negotiate. The prospective buyer expressly did not seek reliance damages. The only damages sought by the buyer were $48,000,000 in lost profits it expected to make by constructing a shopping center on the parcel it sought to buy and leasing space to merchants. Because a...
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249 F.3d 963 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.ARTURO DANIEL VELASCO-HEREDIA, AKA ARTURO VELASCO-HEREDIA, DEFENDANT-APPELLANT. No. 00-50107 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 10, 2001Filed May 10, 2001 1 NOTE: THIS OPINION HAS BEEN WITHDRAWN. ...
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In this appeal from the Supreme Court of the Commonwealth of the Northern Mariana Islands (“CNMI”), Danny C. Charfauros, Gina T. Aldan, and John A. Atalig (collectively, “Appellees”) claim that the individual members of the CNMI Board of Elections (collectively, the “Board”) violated 42 U.S.C. § 1983 by administering pre-election day voter challenge procedures which precluded a certain class of vo...
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106 Cal.Rptr.2d 793 (2001) 88 Cal.App.4th 1353 The PEOPLE, Plaintiff and Respondent, v. Juan Gabriel HERRERA et al., Defendants and Appellants. No. B139597. Court of Appeal, Second District, Division Five. May 10, 2001. Rehearing Denied June 1, 2001. Rehearing Denied June 4, 2001. Review Denied August 22, 2001. *794 John Steinberg and Mark D. Lenenberg, Chatsworth, under appointments by the Court...
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106 Cal. Rptr. 2d 773 (2001) 88 Cal. App. 4th 1426 The PEOPLE, Plaintiff and Respondent, v. Anthony Ronald FRANZ, Defendant and Appellant. No. C034462. Court of Appeal, Third District. May 10, 2001. Rehearing Denied May 24, 2001. Review Denied August 22, 2001. *776 Kathryn Houck, Fresno, under appointment of the Court of Appeal for Defendant and Appellant Anthony Ronald Franz. Bill Lockyer, Attor...
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Appellants Arthur and Jenny Scovis (“Debtors”) filed a Chapter 13 petition in Bankruptcy. Appellee Christen Brun Henrichsen (“Henrichsen”) moved to dismiss the petition, arguing, among other things, that Debtors’ aggregate unsecured debts exceed the $250,000 statutory limitation for eligibility. The bankruptcy court denied Henrichsen’s motion to dismiss, and confirmed the plan. The Bankruptcy Appe...
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250 F.3d 729 (9th Cir. 2001) RAFAEL NAVARRO, INDIVIDUALLY, AND AS THE REPRESENTATIVE OF THE CLASS OF PERSONS DEFINED IN AVERMENT 22, PLAINTIFF-APPELLEE,v.SHERMAN BLOCK, DEFENDANT, AND MICHAEL D. ANTONOVICH; YVONNE BURKE; DONALD KNABE; GLORIA MOLINA; ZEV YARASLOVSKY; PETER F. SCHABARUM; DEANE DANA, DEFENDANTS-APPELLANTS. No. 99-55623 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ...
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In this appeal, we are called upon to determine whether a federal agent’s interrogation of Shawn Percy violated his Sixth Amendment right to counsel because the interrogation occurred in the absence of counsel, but after Percy’s tribal arraignment on charges stemming from the same incident. We hold that the interrogation was proper because, even if Percy’s Sixth Amendment right to counsel attache...
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248 F.3d 1197 (9th Cir. 2001) In the Matter of the Requested Extradition of Kevin John ArttUnited States of America, Appellee,v.Kevin John Artt, Appellant.In the Matter of the Requested Extradition of Pol BrennanUnited States of America, Appellee,v.Pol Brennan, Appellant.In the Matter of the Requested Extradition of Terence Damien KirbyUnited States of America, Appellee,v.Terence Damien Kirby,...
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delivered the opinion of the Court. A jury found petitioner guilty of unfair competition and awarded respondent $50,000 in compensatory damages and $4.5 million in punitive damages. The District Court held that the punitive damages award did not violate the Federal Constitution. The Court of Appeals concluded that “the district court did not abuse its discretion in declining to reduce the amount o...
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532 U.S. 504 (2001) MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION v. GARVEY No. 00-1210. United States Supreme Court. Decided May 14, 2001. ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *506 Per Curiam. The Court of Appeals for the Ninth Circuit here rejected an arbitrator's factual findings and then resolved the merits of the parties' dispute instead ...
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106 Cal.Rptr.2d 548 (2001) 25 Cal.4th 508 22 P.3d 324 HOECHST CELANESE CORPORATION, Plaintiff and Appellant, v. FRANCHISE TAX BOARD, Defendant and Respondent. No. S085091. Supreme Court of California. May 14, 2001. *552 Morrison & Foerster, Eric J. Coffill, Carley A. Roberts and Lisa R. Brenner, Sacramento, for Plaintiff and Appellant. Bill Lockyer, Attorney General, Lawrence K. Keethe and Ge...
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I concur in the opinion of the court. It has long been my position that we should vacate a sentence of death imposed on a criminal defendant as unreliable, in violation of both the cruel and unusual punishments clause of the Eighth Amendment to the United States Constitution and also the cruel or unusual punishment clause of article I, section 17 of the California Constitution, if trial counsel in...
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Jamalur Rashid Chowdhury petitions for review of the Board of Immigration Appeals’ (“BIA”) decision finding him removable under the Immigration and Nationality Act (“INA”) as an “alien who is convicted of an aggravated felony.” 8 U.S.C. § 1227(a)(2)(A)(iii). We have jurisdiction to determine whether jurisdiction is available under 8 U.S.C. § 1252(a)(2)(C). Chowdhury argues that his conviction f...
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OPINION Samson Andrew Gillett appeals his conviction for embezzlement from a federal reserve bank in violation of 18 U.S.C. § 656. In this case we must decide whether an employee of an armored car service, which contracted with a bank to transport night deposit bags from the bank’s branches to the bank’s cash vault, can be prosecuted under 18 U.S.C. § 656 which proscribes theft by a bank office...
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107 Cal. Rptr. 2d 29 (2001) 88 Cal. App. 4th 1381 LOS ANGELES TIMES, Plaintiff and Appellant, v. ALAMEDA CORRIDOR TRANSPORTATION AUTHORITY, Defendant and Respondent. No. B143895. Court of Appeal, Second District, Division Seven. May 14, 2001. Review Denied September 12, 2001. *31 Gibson, Dunn & Crutcher, Theodore J. Boutrous, Jr. and Timothy L. Alger, Los Angeles; and Karlene W. Goller, Deput...
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*1374 Opinion Jesse Raul Duran, Jr., appeals from a judgment sending him to prison for life plus 17 years. 1 We reverse his carjacking conviction because, as the Attorney General concedes, it was a necessarily included offense within the kidnapping-for-carjacking charge. 2 Duran contends the evidence is insufficient to support the remaining convictions of ki...
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262 B.R. 80 (2001) In re Andrew STAFFER, Debtor. Robert Predovich, Appellant, v. Andrew Staffer, Appellee. BAP No. CC-00-1507-PBMa. Bankruptcy No. LA 93-43127 TD. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on February 22, 2001. Filed April 30, 2001. *81 Thomas H. Casey, Law Offices of Thomas H. Casey, Rancho Santa Margarita, CA, for Robert Predovich. John ...
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248 F.3d 1198 (9th Cir. 2001) RANDALL AMSTER, PLAINTIFF-APPELLEE,v.CITY OF TEMPE, DEFENDANT-APPELLANT. No. 00-15387 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 23, 2001* Filed May 15, 2001 Marlene A. Pontrelli, Deputy City Attorney, Tempe, Arizona, for the defendant-appellant. Randall Amster, Pro Se, Tempe, Arizona, plaintiff...
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248 F.3d 942 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.ANTONIO REYES-PACHECO, AKA ANTONIO REYES PACHECO, DEFENDANT-APPELLANT. No. 00-50409 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted May 7, 2001*May 15, 2001 Olivia W. Karlin, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant. Jeremy D. Matz,...
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*1413 Opinion Introduction This is a medical malpractice case in which Nathaniel Galvez sues defendant Michael Frields, M.D., for wrongful life, contending that Frields failed to make reasonable efforts to ensure Nathaniel’s mother, Michelle Sepulveda, was given a blood test to detect the presence of the neural tube defect from which Nathaniel suffers. Plaintiff filed this a...
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107 Cal. Rptr. 2d 39 (2001) 88 Cal. App. 4th 1394 Emil POLLAK, Plaintiff and Appellant, v. STATE PERSONNEL BOARD, Defendant and Respondent; State Board of Equalization, Real Party in Interest and Respondent. No. C036231. Court of Appeal, Third District. May 15, 2001. *40 Ben Allamano, for Plaintiff and Appellant. Elise S. Rose, Chief Counsel and Bruce A. Monfross, Staff Counsel, for Defendant and...
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249 F.3d 1089 (9th Cir. 2001) TEAMSTERS LOCAL UNION 58, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,v.BOC GASES, A DIVISION OF THE BOC GROUP, INC.; THE BOC GROUP, INC., DEFENDANTS-COUNTER-CLAIMANTS-APPELLEES.TEAMSTERS LOCAL UNION 58, PLAINTIFF-COUNTER-DEFENDANT-APPELLEE,v.BOC GASES, A DIVISION OF THE BOC GROUP, INC.; THE BOC GROUP, INC., DEFENDANTS-COUNTER-CLAIMANTS-APPELLANTS. Nos. 98-35573, 98...
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249 F.3d 1087 (9th Cir. 2001) JOAN PLASTIRAS MYERS, PLAINTIFF-APPELLANT,v.MERRILL LYNCH & CO., INC.; PAINEWEBBER GROUP, INC.; MORGAN STANLEY; DEAN WITTER; TRAVELERS GROUP, INC.; LEGG MASON INC.; BEAR, STEARNS & CO., INC., DEFENDANTS-APPELLEES,ANDH. J. MEYERS & CO., DEFENDANT. No. 99-17113 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 11...
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The district court granted petitioner Nello L. Grassi’s petition for habeas corpus. The government appeals. We review de novo, Bowen v. Hood, 202 F.3d 1211, 1218 (9th Cir.2000), and we reverse. FACTS AND PROCEDURAL HISTORY In January 1999, Petitioner was convicted in federal court of conspiring to manufacture and distribute marijuana in violation of 21 U.S.C. §§ 841 and 846. He was sentence...
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259 B.R. 371 (2001) In re Mohammad & Kausar AKRAM, Debtors. No. LA 00-42035-KM. United States Bankruptcy Court, C.D. California. March 6, 2001. *372 Edwina Dowell, Los Angeles, CA, Chapter 13 Trustee. David Workman, Torrance, CA, for Debtors. OPINION RE ORDERS GRANTING LAM MOTIONS IN PART AND DENYING LAM MOTIONS IN PART KATHLEEN P. MARCH, Bankruptcy Judge. I. Issue Presented In a "Chapter 20"...
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Opinion Ten years ago in People v. Axell (1991) 235 Cal.App.3d 836 [1 Cal.Rptr.2d 411], in an opinion authored by Presiding Justice Stone, we were the first California appellate court to approve the use of deoxyribonucleic acid (DNA) typing evidence to prove identity in a criminal case. Since then, the scientific methodology, while fundamentally the same, has become ...
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Opinion Alfred Frazier appeals from the judgment following his conviction on one count of committing a lewd act with a child under age 14 and one count of annoying or molesting a child under 18. We hold the jury was improperly instructed under former CALJIC No. 2.50.01 and this error prejudiced defendant. Therefore, we reverse. *33 Facts and Proceedings Below Defendant’s convictions follo...
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Opinion A jury convicted defendant Milton Otis Lewis of one count of first degree murder (Pen. Code, § 187),1 and found true the special circumstance allegations of robbery murder (§ 190.2, former subd. (a)(17)(i) [now subd. (a)(17)(A)]), and burglary murder (§ 190.2, former subd. (a)(17)(vii) [now subd. (a)(17)(G)]). The jury also convicted defendant of two counts of robbery, one count of burgla...
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We once again consider at what point a “border inspection detention” may have evolved into “custody” triggering the requirement of Miranda warnings prior to questioning. In this case, while agents conducted an intensive inspection of the defendant’s car, he was taken to the inspection station’s security office, patted-down, and placed in a locked holding cell where his shoes and belt were confi...
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Opinion by Judge NOONAN; Concurrence by Judge WARDLAW In these consolidated cases, Phillip Mulder, Charles Buck, Leon Gibbons, Glenn Hilton, Rebecca McReynolds and Barbara Kipp (the petitioners) petition for review of an order of the National Labor Relations Board (the Board or the NLRB) holding that they as nonmembers of a union may be charged under union security agreements with their employers...
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Opinion I. Introduction Cross-defendants Financial Indemnity Company (Financial), Allstate Insurance Company (Allstate), Dennis B. Kass, and Manning & Marder, Kass, Ellrod, Ramirez (the Manning law firm), appeal from orders denying special motions to strike the third amended cross-complaint of Naum “Neil” Shekhter pursuant to Code of Civil Procedure 1 section 425.16 and co...
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Opinion Appellants Videotape Plus, Inc., and Marshall W. Brehm appeal from the judgment on the pleadings dismissing their malicious prosecution complaint against respondents Vincent J. Lyons, Dubs, Inc., and Gerald P. Cunningham. After review, we reverse and remand. *159 Procedural And Factual Background 1 Respondent Vincent J. Lyons owns Dubs, Inc., a company i...
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244 F.3d 1192 (9th Cir. 2001) ROBERT LEE MASSIE, By and Through Michael A. Kroll, Next Friend, Petitioner-Appellant,v.JEANNE S. WOODFORD, Warden, Respondent-Appellee. No. 01-99002 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted by telephone March 25, 2001Filed March 25, 2001 Gail R. Weinheimer, San Anselmo, California and Robert F. Kane, San Fr...
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We decide an issue of first impression: Whether, under California Business and Professions Code § 10471(a), a title insurance company that satisfied its obligations to its insured following embezzlement by a mortgage broker is entitled to payment from the State of California Department of Real Estate Recovery Account to recover a portion of an unsatisfied judgment against the embezzling brokers. W...
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delivered the opinion of the Court. These cases raise an important question concerning what degree of protection, if any, the First Amendment provides to speech that discloses the contents of an illegally intercepted communication. That question is both novel and narrow. Despite the fact that federal law has prohibited such disclosures since 1934,1 this is the first time that we have confronted su...
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delivered the opinion of the Court. The Constitution’s Compensation Clause guarantees federal judges a “Compensation, which shall not be diminished during their Continuance in Office.” U. S. Const., Art. Ill, § 1. The Court of Appeals for the Federal Circuit held that this Clause prevents the Government from collecting certain *561Medicare and Social Security taxes from a small number of federal j...
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C. A. 3d Cir. Certiorari granted....
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106 Cal. Rptr. 2d 824 (2001) 25 Cal. 4th 680 22 P.3d 871 The PEOPLE, Plaintiff and Respondent, v. Guadalupe TORRES, Defendant and Appellant. No. S079575. Supreme Court of California. May 21, 2001. Rehearing Denied July 11, 2001. Cynthia A. Thomas, Sacramento, under appointment by the Supreme Court, for Defendant and Appellant. Ron Boyer for California Public Defenders Association as Amicus Curiae...
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Opinion These are three appeals from a final judgment and satellite orders entered by the San Francisco County Superior Court in a suit for damages for breach of contract, interference with prospective economic advantage, and defamation. We are asked by plaintiff-appellant to rule the sustention of a demurrer to the amended complaint without leave to amend was erroneous as a matter of law, the ru...
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Opinion Introduction After she was injured while at work in the Dominican Republic, plaintiff Gina Tucci brought a personal injury action in California against her employer, defendant Club Med. 1 Once the case was at issue, the parties filed competing motions for summary judgment. In her motion, Tucci relied on the provision in the California workers’ compensation law (Lab...
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Opinion I. Introduction Renewal of a judgment is a ministerial act performed by a court clerk upon receipt of an application for renewal. (Code Civ. Proc., §§ 683.120, subd. (b), 683.150, subd. (a); 1 Beneficial Financial, Inc. v. Durkee (1988) 206 Cal.App.3d 912, 915 [254 Cal.Rptr. 351].) Section 683.150, subdivision (a) states: “Upon the filing of the a...
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249 F.3d 1121 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,v.SCOTT F. SHERBURNE; JOSEPH J. MCKAY; BLAZE CONSTRUCTION, DEFENDANTS-APPELLEES.UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.SCOTT F. SHERBURNE, DEFENDANT-APPELLANT.UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.WILLIAM HARVEY AUBREY, DEFENDANT-APPELLANT. No. 99-30213, 99-30214, 99-30218 UNITED STATES COURT O...
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249 F.3d 1132 (9th Cir. 2001) THE FAIR HOUSING COUNCIL OF RIVERSIDE COUNTY, INC.; THE INLAND MEDIATION BOARD, INC., PLAINTIFFS,ANDEUGENIA GREEN, AS AN INDIVIDUAL AND AS GUARDIAN AD LITEM FOR IRAN GREEN, WENDI GREEN, AND KAMDEN GREEN, MINORS; SHANNON STAPLES, AS AN INDIVIDUAL AND AS GUARDIAN AD LITEM FOR JORDAN PALMS AND BRIANNA STAPLES,MINORS; PAMELA JACKSON BOYNES, AS AN INDIVIDUAL AND AS GUA...
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Opinion Doctor Jack L. Gilliland (Gilliland) and Jose Rivera (Rivera) appeal from the denial of their petition for writ of administrative mandamus. Ron Joseph (Joseph), the Executive Director of the Medical Board of California and Acting Director of the Department of Consumer Affairs, charged Gilliland and Rivera with violating Business and Professions Code section 805 1 becaus...
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At sentencing following a guilty plea in a drug case, the district court increased Claudio Salcido-Corrales’ base offense level by two levels. The district court justified its decision on two independent grounds: (1) an adjustment based on the defendant’s role as an organizer, leader, manager, or supervisor; and (2) an upward departure based on the defendant’s involvement of his son in his crimes...
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Jeffrey G. Harden appeals the district court’s order compelling arbitration. Roadway Package Systems, Inc. (“RPS”) sought summary judgment or in the alternative mutually binding arbitration of Harden’s claims under the California Fair Employment and Housing Act (“FEHA”). The principal issue in this case is whether the district court erred in compelling arbitration. We conclude that the Federal ...
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Brad Hufford alleges that the defendants violated his clearly established First Amendment rights when they discharged him for reporting that fellow firefighters had downloaded a large cache of hard core pornographic files on the firestation’s computers. Defendants appeal from the denial of their summary judgment motion asserting qualified immunity under 42 U.S.C. § 1983. We affirm in part and reve...
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*285 Opinion I. Introduction Plaintiff and cross-complainant Patricia A. Cochran appeals from the judgment of dismissal entered after the trial court sustained without leave to amend the demurrers which defendant and cross-defendant Johnnie L. Cochran, Jr., brought to her cross-complaint for rescission of their 1983 property settlement agreement. 1 She also appeals from the summary judgme...
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Opinion Upon learning its former in-house counsel planned to sue for wrongful termination of employment, a company struck first by suing the *298 former counsel for disclosing confidential and privileged information to the attorneys handling her wrongful termination case. The former in-house counsel moved to strike the company’s complaint as a SLAPP suit. 1 The com...
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Opinion Following defendant’s plea of no contest to felony vandalism (Pen. Code, § 594, subd. (b)(2); further undesignated section references are to the Penal Code), the trial court imposed the upper term of three years in state prison but suspended execution of sentence and placed defendant on probation. Shortly thereafter, defendant admitted violating probation and the trial court imposed the...
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George Edward Dudley and Carmen Mae Dudley bring two consolidated appeals. In appeal no. 99-56440, the Dud-leys appeal the district court’s order affirming the bankruptcy court’s denial of their claim to an exemption of their individual retirement accounts (“IRAs”) from claims of their creditors in their joint Chapter 7 bankruptcy estate. They contend their IRAs are exempt as “private retiremen...
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250 F.3d 1262 (9th Cir. 2001) TONY EUGENE SAFFOLD, Petitioner-Appellant,v.ANTHONY NEWLAND, Respondent-Appellee. No. 99-15541 U.S. Court of Appeals for the Ninth Circuit Argued and Submitted February 14, 2000Filed July 17, 2000Amended May 23, 2001 Mary Katherine McComb, Davis, California, for the petitioner-appellant. Stan Cross, Deputy Attorney General, Sacramento,...
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Fenner appeals from the district court’s order denying his petition for habeas corpus relief. Almost three years after his release from federal custody, Fenner filed a pro se habeas petition challenging his special parole term. Less than one month later, he was arrested for parole violations. Fenner’s amended petition contends (1) that his sentence did not include a special parole term, and (2)...
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107 Cal. Rptr. 2d 323 (2001) 25 Cal. 4th 703 23 P.3d 563 The PEOPLE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Gary Laff et al., Real Parties in Interest. No. S063662. Supreme Court of California. May 24, 2001. Rehearing Denied June 27, 2001. *327 Gil Garcetti, District Attorney, Brent Riggs, Natasha S. Cooper and Patrick D. Moran, Deputy District Attorneys, for Petitio...
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107 Cal. Rptr. 2d 149 (2001) 25 Cal. 4th 688 23 P.3d 43 Daniel GRISET et al., Plaintiffs and Appellants, v. FAIR POLITICAL PRACTICES COMMISSION, Defendant and Respondent. No. S077219. Supreme Court of California. May 24, 2001. *150 Bopp, Coleson & Bostrom, James Bopp, Jr.; Reed & Davidson, Darryl R. Wold, Dana W. Reed, Bradley W. Hertz *151 and Rondi J. Walsh, Los Angeles, for Plaintiffs ...
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*410 Opinion Appellant Pink Dot, Inc. (Pink Dot), a grocery delivery service which relied heavily on customers’ telephone orders, sued respondent Teleport Communications Group (Teleport), alleging that when negotiating for a centralized telephone system Teleport falsely represented its reliability and falsely claimed the ability to implement Caller ID. Pink Dot further complained...
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Opinion This case requires us to determine whether a trial judge may find an alleged prior conviction “not true” based on the trial judge’s personal belief the prosecution should have to prove the validity of the waiver of Boykin-Tahl 1 rights, even in the absence of a challenge on that ground by the defendant. After rehearing, 2 we conclude the prosecution is not required to prove, as an e...
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*404Opinion Dan R. and Geraldine W., father and mother of 19-month-old Dani, appeal from a judgment declaring their son a dependent of the court and removing him from their parental custody. Father contends the juvenile court’s jurisdictional findings under Welfare and Institutions Code section 300, subdivision (b) and order removing Dani from his physical custody are not supported by substantial ...
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Opinion Petitioner, Garden Grove Police Department, argues the trial court abused its discretion when it ordered the police department to disclose the birth dates of three police officers to the Orange County District Attorney for the purpose of running criminal records checks. The police department contends the court should have required the defendant to comply with the Pitchess process (Pitches...
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After prevailing in a jury trial on her claim under the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213, against Paradise Valley School District (“District”), Linda Johnson appeals from the district court’s order granting judgment as a matter of law to the District and conditionally granting the District’s motion for a new trial. We reverse. BACKGROUND A. The Evidence Favor...
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Opinion Evidence Code section 1360 establishes a procedure whereby evidence of a statement made by a victim under the age of 12 that would otherwise be treated as hearsay may be admitted in criminal prosecutions for specified sex offenses if (among other requirements) the trial court determines that “the time, content, and circumstances of the statement provide sufficient indicia of relia...
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Opinion Plaintiff Daniel R. Solin, an attorney, retained O’Melveny & Myers, LLP (O’Melveny) to obtain advice regarding Solin’s representation of Edith Reich and Brigitte R. Jossem (together referred to as the Clients). In that regard, Solin disclosed certain privileged and confidential information of the Clients (the Secrets), which implicated them in criminal activities. Solin sued ...
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Opinion Appellant Marcus T. appeals from judgment of the juvenile court declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 and placing him home on probation after finding that he threatened a public officer in violation of Penal Code section 711 and made a terrorist threat in violation of Penal Code section 422.2 He contends the court erred in finding he commit...
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Opinion Appellant Michelle Lynn Shoup appeals from Sacramento County action Nos. 98M09139 and 96F07655. It appears that action No. 98M09139 was at all times a prosecution for misdemeanor offenses only, which resulted in misdemeanor convictions by a jury. Action No. 96F07655 was a proceeding to revoke probation in a felony case which was consolidated for hearing with action No. 98M09139. At th...
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Ct. App. Cal., 2d App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Cooper Industries, Inc. v. Leatherman Tool Group, Inc., ante, p. 424....
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532 U.S. 706 (2001) NATIONAL LABOR RELATIONS BOARD v. KENTUCKY RIVER COMMUNITY CARE, INC., et al. No. 99-1815. United States Supreme Court. Argued February 21, 2001. Decided May 29, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *707 Scalia, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I a...
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delivered the opinion of the Court. Numerous federal statutes allow courts to award attorney’s fees and costs to the “prevailing party.” The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the def...
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delivered the opinion of the Court. In Montana v. United States, 450 U.S. 544 (1981), we held that, with limited exceptions, Indian tribes lack eivü authority over the conduct of nonmembers on non-Indian fee land within a reservation. The question with which we are presented is whether this general rule applies to tribal attempts to tax nonmember activity occurring on non-Indian fee land. We hold ...
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Baltazar Pernillo-Fuentes appeals his conviction and thirty-month sentence for attempted entry following deportation in violation of 8 U.S.C. § 1326. We reverse. On February 16, 2000, the grand jury returned a one-count indictment in which it charged Pernillo-Fuentes as follows: On or about November 20, 1999, within the Southern District of California, defendant BALTAZAR PERNILLO- *1032 FUE...
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ORDER This case is before us on remand from the United States Supreme Court, which vacated this court’s previous judgment of dismissal for lack of jurisdiction and remanded the case for further consideration. See Interactive Flight Techs., Inc. v. Swissair Swiss Air Transp. Co., — U.S. -, 121 S.Ct. 1184, 149 L.Ed.2d 101 (2001). Specifically, the Court directed that we further consider the cas...
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Opinion Fowler v. Superior Court (1984) 162 Cal.App.3d 215 [208 Cal.Rptr. 408], a criminal case, holds that a county’s obligation to preserve “recordings of telephone and radio communications” for more than 100 days arises only when the county has actual notice that such recordings “are evidence in any claim filed or any pending litigation.” (Gov. Code, § 26202.6.) 1 ...
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Opinion Under Civil Code 1 section 2924c, subdivision (e), the trustors under a deed of trust have the right to cure a default and reinstate the loan “at any time . . . until five business days prior to the date of sale” set forth in the initial or subsequent notice of sale or orally declared on the date of any postponement. Under section 2924g, subdivision (d), a foreclosure s...
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*594 Opinion Juan Salazar-Merino pled guilty to “using a false document to conceal his . . . true citizenship or resident alien status” in violation of Penal Code section 114, and was sentenced to five years in state prison, with probation denied. 1 Appellant contends on appeal that: (1) his trial counsel rendered ineffective assistance by recommending a guilty plea wi...
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*532 Opinion Cotrastees appeal from an order of the probate court directing payment of the unsatisfied portion of a judgment entered against the decedent from assets of the decedent’s revocable inter vivos trust. They contend the probate court erred in concluding Probate Code section 19001 authorized payment to judgment creditors from trust assets without requiring the creditors to first sue ...
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*607 Opinion The demurrers of defendants and respondents Health Industries of America, Inc., et al. 1 (defendants) to the third amended complaint of plaintiffs and appellants William Leader and Leader Psychiatric Medical Group (plaintiffs) were sustained with leave to amend. Plaintiffs did not file a fourth amended complaint within the time specified by the court. More...
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Opinion A jury found that Motor Sound Corporation (Motor Sound) committed fraud in inducing Zaxis Wireless Communications, Inc. (Zaxis) to remain as its subagent in selling wireless services. Zaxis was awarded $190,000 in compensatory damages. In a bifurcated proceeding the jury awarded Zaxis $300,000 in punitive damages. Motor Sound does not contest the finding of fraud, the magnitude of harm to...
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On June 19, 1998, Donald Ray Patterson filed a petition for writ of habeas corpus in federal court challenging the constitutionality of his conviction for sexual assault, kidnapping, aggravated assault and burglary. The district court dismissed Patterson’s petition as untimely, concluding that Patterson had filed his petition one day too late. Patterson now appeals, claiming the district court fa...
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Evelyn Gonzalez-Caballero appeals the district court’s denial of her petition to return her daughter, Danelsy, to her custody in Panama. The district court found that Gonzalez-Caballero consented to the removal and retention of Danelsy from Panama to Arizona by Danelsy’s father, Ramon Mena, an American citizen. Because this decision was based on a correct application of the Hague Convention on th...
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Defendants Lee Baca, et al., appeal a preliminary injunction prohibiting the use of a stun belt on prisoners appearing in Los Angeles County courts. We conclude the injunction was too broad, and remand for further proceedings. I. Background Plaintiff and Appellee Ronnie Hawkins was a convicted criminal defendant scheduled to appear for sentencing. Before the hearing, t...
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251 F.3d 795 (9th Cir. 2001) GERARDO DENNIS PATRICKSON; RODOLFO BERMUDEZ ARIAS; BENIGNO TORRES HERNANDEZ; FERNANDO JIMENEZ ARIAS; SANTOS LEANDROS; HERMAN ROMERO AGUILAR; ELIAS ESPINOZA MERELO HOOKER ERA CELESTINO; ALIRIO MANUEL MENDEZ; CARLOS HUMBERTO RIVERA, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,v.DOLE FOOD COMPANY, INC.; DOLE FRESH FRUIT COMPANY; DOLE...
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The majority upholds the trial court’s grant of summary judgment to defendants, at whose apartment complex plaintiff, a Federal Express employee who was trying to deliver a package, suffered a brutal sexual assault by three men who were never apprehended. Only by bending both the rules of summary judgment and the legal causation element of negligence can the majority reach its result. The holding ...
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Opinion Which statute of limitations applies to a general contractor’s claims against an architect and construction manager for economic losses sustained due to their alleged professional negligence during construction? Instead of the two-year statute governing claims for breach of an oral contract (Code Civ. Proc., § 339, subd. 1), the general contractor in this case urges us to apply the four-y...
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Opinion Liang Tai Knitwear Co., Ltd. (Manufacturer) and Hong Yuan Industrial Co., Ltd. (Marketer) (collectively defendants) are in the garment business here in Los Angeles. Lou Yu Jie (Wife) and Fu E. Min (Husband) (collectively plaintiffs) both worked for defendants in the garment business. After defendants laid off plaintiffs, plaintiffs sued, alleging their terminations were retaliator...
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Opinion Defendant and appellant Stephen Paley (Paley) appeals a postjudgment order in favor of plaintiffs and respondents Martha Rose Ames, Rose J. Schurter, as trustee of the Rose J. Schurter Revocable Trust, and Rojo Corporation (hereafter plaintiffs), modifying the judgment so as to make interest thereon retroactive. The essential issue presented is whether the trial court had the inherent powe...
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*626 Opinion 1. Introduction In September 1999, Sports Illustrated and an HBO television program, Real Sports, used the 1997 team photograph of a Little League team to illustrate stories about adult coaches who sexually molest youths playing team sports. Plaintiffs, all of whom appear in the photograph, were formerly players or coaches on the Little League team. The ...
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Six environmental organizations sued the National Marine Fisheries Service (“NMFS”) for declaratory and injunctive relief to challenge four biological opinions which had the effect of clearing the way for 23 proposed timber sales in the Umpqua River watershed in southwestern Oregon. The district court granted substantial relief and the defendant agency, together with intervening timber operators, ...
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We heard this case en banc to resolve an intra-circuit conflict in our Double Jeopardy jurisprudence. Our cases have reached inconsistent results as to whether a defendant who has engaged in a single overall conspiracy to commit acts proscribed by more than one statute may be convicted and punished for committing two offenses, one under the general conspiracy statute, *1034 ...
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Opinion This case involves the differing tax consequences between a contractor’s consumption of “materials” and its sale of “fixtures” as defined in section 1521 of the Board of Equalization’s (Board) Sales and Use Tax Regulations (Cal. Code Regs., tit. 18, § 1521; hereafter Regulation 1521). Richard Boyd Industries, Inc. (Boyd) manufactures and installs various kinds of signs on real pro...
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Opinion Lawrence Anthony Cuevas was convicted of robbing three banks in Alameda County during the fall of 1997. Because of his lengthy felony criminal record, Cuevas was sentenced under the “Three Strikes” law to a total prison term of 85 years to life. He appeals his conviction and sentence on the following grounds: (1) ineffective assistance of counsel for failure to make a suppression ...
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Opinion When appointed counsel in a conservatorship appeal fails to discover an arguable issue, must the Court of Appeal independently review the record upon a request per People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071]?1 Yes. I A unanimous jury found Margaret L. gravely disabled, and the court extended her existing conservatorship.2 We appointed an attorney to represent he...
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Opinion Introduction Community Redevelopment Agency of the City of Los Angeles (CRA) and the County of Los Angeles (County) dispute the manner in which *721 property tax revenue is shared. The dispute centers on County’s interpretation of Revenue and Taxation Code section 95.3 (section 95.3), which reduces the amount of revenue that CRA receives. We uphold County’s inter...
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*787 Opinion In proceedings authorized by Welfare and Institutions Code section 6600 et seq., 1 the district attorney petitions for an extraordinary writ of mandate. He seeks an order directing the trial court not to hold a scheduled probable cause hearing on a petition to recommit real party as a sexually violent predator. We conclude that the trial court correctly interpreted the Sexually...
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*749 Opinion Defendant and appellant Northridge Park Townhome Owners Association, Inc. (Northridge Park) appeals an amended judgment obtained by plaintiff and respondent Robert E. McClellan doing business as McClellan Design and Construction (McClellan) naming Northridge Park as an additional judgment debtor. The essential issue presented is whether substantial evidence supp...
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Opinion Plaintiff and appellant First Commercial Mortgage Company doing business as FCMC Mortgage Company (First Commercial), an Arkansas corporation, appeals a judgment following a grant of summary judgment in favor of defendants and respondents Donald R. Reece (Reece), John Andrade and Andrade Financial, a California corporation (Andrade) (collectively, defendants). *735The defendants allegedly...
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The district court departed downward from Appellant Alex Caperna’s applicable sentencing guidelines range because two of Caperna’s co-defendants received what the court deemed to be lesser sentences in light of their relative culpabilities. The government timely appealed, and we have jurisdiction pursuant to 28 U.S.C. § 1291 (2000) and 18 U.S.C. § 3742(b) (2000). We conclude that a district cou...
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251 F.3d 809 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,v.2.6 ACRES OF LAND, MORE OR LESS, SITUATED IN WHATCOM COUNTY, STATE OF WASHINGTON; CANADA CONNECTIONS, INC., A WASHINGTON CORPORATION, OWNER; CITY OF BLAINE, A MUNICIPAL CORPORATION; UNKNOWN OWNERS, DEFENDANTS-APPELLEES. No. 99-35887 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted ...
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The main issue we must decide is whether the district court is foreclosed from enhancing a sentence for an offense committed on pretrial release when the defendant has not been specifically warned in the pretrial release order that committing a new offense while on release would result in an additional enhancement pursuant to 18 U.S.C. § 3147 and its implementing guideline, USSG § 2J1.7. ...
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In a case of first impression in this Circuit, James Carbullido (“Carbullido”) appeals the district court’s order conditionally releasing him from custody pursuant to 18 U.S.C. § 4243(f). Carbullido argues that the governing statute — 18 U.S.C. § 4243(e) — only permits his commitment or unconditional release. He is correct. Conditional release is only appropriate under 18 U.S.C. § 4243(f) after a...
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Stuart Groten appeals the district court’s dismissal of his amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Groten brought his complaint under 42 U.S.C. § 1983 and 12 U.S.C. § 3351 against the State of California and state officials in the Office of Real Estate Appraisers. Groten alleges that the appellees violated his constitutional rights when they denied him the opportun...
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Pool halls conjure up images of green felt tables, low-hanging lights, and billiard cues. But can a pool hall’s overall image constitute protectable trade dress? To answer that question in this dispute between two pool hall operators, Appellant Clicks Billiards, Inc. (“Clicks”), and its competitor, Sixshooters, Inc. (“Sixshooters”), we must address whether Clicks’ claimed trade dress was nonfun...
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532 U.S. 811 (2001) NORFOLK SHIPBUILDING & DRYDOCK CORP. v. GARRIS, administratrix of the ESTATE OF GARRIS, DECEASED No. 00-346. United States Supreme Court. Argued April 18, 2001. Decided June 4, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT *813 Scalia, J., delivered the opinion of the Court, Parts I, II—A, and II—B-1 of which were unanimous, and Part II—B-2 ...
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delivered the opinion of the Court. Under § 172(b)(l)(I) of the Internal Revenue Code of 1954, a taxpayer may carry bach its “product liability loss” up to 10 years in order to offset prior years’ income. The issue here is the method for calculating the product liability loss of an affiliated group of corporations electing to file a consolidated federal income tax return. We hold that the group’s ...
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C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of PGA TOUR, Inc. v. Martin, ante, p. 661....
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Opinion In an action against a city for allegedly imposing and collecting a general tax on its residents without the voter approval mandated by Proposition 62 (Gov. Code, §§ 53720-53730), when does the statute of limitations begin to run? Defendant, the City of La Habra (the City), contends the statute started to run on the date the City enacted its ordinance authorizing the tax. Plaintiffs, thre...
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107 Cal. Rptr. 2d 381 (2001) 25 Cal. 4th 796 23 P.3d 611 Clarence ALBERTSON, Petitioner, v. The SUPERIOR COURT of Ventura County, Respondent, The People of the State of California, Real Party in Interest. No. S085899. Supreme Court of California. June 4, 2001. *382 Kenneth Claman, Public Defender, Michael C. McMahon, Chief Deputy Public Defender, and Todd W. Howeth, Deputy Public Defender, for Pe...
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This is a direct appeal from a federal conviction for arson resulting in death, in violation of 18 U.S.C. § 844(i). The appellant, Tanh Huu Lam, raises two types of claims: First, he argues that his constitutional and statutory rights to a speedy trial were violated. Second, Lam claims that the government violated his due process and double jeopardy rights by knowingly presenting false testimon...
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251 F.3d 1268 (9th Cir. 2001) BOULDER FRUIT EXPRESS & HEGER ORGANIC FARM SALES; CONTINENTAL SALES CO.; HEALTH & LEJEUNE; GOLD INC.; NATURAL SELECTION FOODS, L.L.C.; NEW HARVEST ORGANICS; PACIFIC ORGANIC PRODUCTION, PACIFIC ORGANIC PRODUCE S.A.; AMERICAN 4-STAR MARKETING INC., DBA RAINBOW VALLEY ORCHARDS; SUNDANCE NATURAL FOODS, PLAINTIFFS-APPELLANTS,v.TRANSPORTATION FACTORING, INC., A ...
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Petitioner seeks review of a decision of the Board of Immigration Appeals (“BIA”) denying his motion to reopen his exclusion proceedings under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention Against Torture” or “Convention”). We are asked to decide an issue of first impression in this circuit: whether an alien who has been...
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Warren K. Steffen was convicted after a jury trial of two counts of mail fraud, in violation of 18 U.S.C. § 1343, and one count of so-called “travel fraud,” in violation of 18 U.S.C. § 2314. The district court sentenced him to sixty months imprisonment for each of the first two counts, and seventy months for the third. The court ordered that these sentences run concurrently with each other, but c...
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OPINION INTRODUCTION The bankruptcy court ruled that monetary claims asserted in a state court consumer protection action against the debtor were not exempt from the automatic stay, under the exception for an action to enforce a governmental unit’s police or regulatory power. The Commonwealth of Massachusetts (“Commonwealth”) appealed, and we REVERSE that portion of the order...
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Opinion by Judge KOZINSKI; Partial Concurrence and Partial Dissent by Judge WILLIAM A. FLETCHER; Dissent by Judge MICHAEL DALY HAWKINS. It was, in the words of Justice Kennedy, the genius of the Founding Fathers to “split the atom of sovereignty.” U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (Kennedy, J., concurring). What this means in practical t...
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Opinion Summary This case addresses whether the 45-day period specified in Labor Code section 3725 for filing a petition for writ of mandate from an order of the *893 Labor Commissioner is extended five days under the provisions of Code of Civil Procedure section 1013. We conclude that section 1013 does not apply to the jurisdictional time limit for filing a writ petitio...
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Opinion I. Introduction Under the “Three Strikes” law, the court must impose a consecutive sentence for each current offense “not committed on the same occasion, and not arising from the same set of operative facts . . . -” 1 (Pen. Code, §§ 667, subd. (c)(6), (7), 1170.12, subd. (a)(6), (7).) Conversely, if the current offenses were committed on the same occasion a...
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We reheard this case en banc in order to resolve some inconsistencies in our case law regarding what a district court must *405 do, when revoking a defendant’s probation or supervised release, to provide the defendant with due process and ensure an adequate record for our review. Federal Criminal Procedure Rule 32.1(a)(2) provides that, in the context of a revocation proceeding, a defendant mus...
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This case concerns sufficiency of the pleadings in a securities fraud case. I. FACTS The district court dismissed this case for failure to state a claim upon which relief could be granted, so we state the facts as they are stated in the complaint to determine whether the complaint states a claim upon which relief could be granted. In the context of securities litigation under the Private Securit...
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251 F.3d 862 (9th. Cir. 2001) VAN CAMP & BENNION, A PROFESSIONAL SERVICE CORPORATION, PLAINTIFF-APPELLANT,v.UNITED STATES OF AMERICA; PAUL BEENE, DISTRICT DIRECTOR OF INTERNAL REVENUE, WASHINGTON DISTRICT, DEFENDANTS-APPELLEES. No. 96-36068 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 2000--Seattle, WashingtonFiled June 6, 2001 ...
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253 F.3d 410 (9th Cir. 2001) WAYNE BLOCK; ANICK CHARRON; EUGENE GREENE; ROBERT B. HYDE; DAVID G. LEATHERMAN; SHU TAN, PLAINTIFFS-APPELLEES,v.CITY OF LOS ANGELES, DEFENDANT-APPELLANT, AND DEPARTMENT OF WATER AND POWER, DEFENDANT.WAYNE BLOCK; ANICK CHARRON; EUGENE GREENE; ROBERT B. HYDE; DAVID G. LEATHERMAN; SHU TAN, PLAINTIFFS-APPELLEES,v.CITY OF LOS ANGELES, DEFENDANT, AND DEPARTMENT OF WATER ...
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252 F.3d 1039 (9th Cir. 2001) IN RE: CYBERNETIC SERVICES, INC., D/B/A SILENT RADIO, INC., DEBTOR. PETITIONING CREDITORS; BYRON Z. MOLDO, CHAPTER 7 TRUSTEE OF THE ESTATE OF CYBERNETIC SERVICES, INC., DBA SILENT RADIO, INC. ("MOLDO"), APPELLANTS, v. MATSCO, INC., APPELLEE. IN RE: CYBERNETIC SERVICES, INC., D/B/A SILENT RADIO, INC., DEBTOR.BYRON Z. MOLDO, CHAPTER 7 TRUSTEE, APPELLANT,v.MATSCO, IN...
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In this appeal, we consider whether, in a Chapter 7 bankruptcy proceeding, an obligation to pay for pre-petition legal services is subject to automatic stay under 11 U.S.C. § 362 and discharge under 11 U.S.C. § 727, when the debtor has agreed to pay for those services in installments pursuant to Federal Rule of Bankruptcy Procedure 1006(b). We also review the bankruptcy court’s decision to redu...
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The central issue in this case is whether an anonymous tip provided law enforcement officers with reasonable suspicion to believe that the defendants’were engaged in criminal activity. Because we agree with the district court that the tip did not exhibit sufficient “indicia of reliability” to establish reasonable suspicion, we affirm the district court’s order granting the defendants’ motion to s...
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We must decide whether a former collegiate soccer player may pursue her federal antitrust challenge to an intercollegiate athletic association rule that discourages student-athletes from transferring to member institutions during the course of their collegiate athletic careers. I A star high school soccer player, Rhiannon Tanaka (“Tanaka”) was heavily recruited by the athletic program...
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Jesse Javier Alvarado (“Alvarado”) appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. Alvarado maintains that his federal constitutional rights were violated by an Oregon law mandating that juveniles between the ages of 15 and 17 charged with the commission of specified crimes be tried and sentenced as adults. We affirm the denial of the writ. I On May 30, ...
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Opinion Angel Valdez appeals from his involuntary commitment as a mentally disordered offender (MDO) under Penal Code section 2960 et seq. 1 He contends the evidence was insufficient to prove three of the five criteria required for an MDO commitment because (1) his underlying conviction of sexual battery under section 243.4 did not involve force or violence and did not otherwise qualify as an...
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Opinion Pinkerton, Inc., 1 seeks review of an order of the Workers’ Compensation Appeals Board (Board) denying its petition for reconsideration and affirming an award in favor of Tinishia Samuel. Pinkerton contends that it gave sufficient notice of change of the primary treating physician. While the statute and regulation are not clear as to what notice is required, we conclude...
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Opinion Plaintiff and appellant National Technical Systems (plaintiff or the subcontractor) appeals a postjudgment order denying its motion to summarily enforce a judgment against United Pacific Insurance Company (the surety), the surety on a stop notice release bond. The essential question presented is whether plaintiff is entitled to enforce a money judgment against the surety pursuant to the s...
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*977Opinion The Lanterman-Petris-Short Act (LPS Act)1 is intended to provide prompt, short-term, community-based intensive treatment, without stigma or loss of liberty, to individuals with mental disorders who are either dangerous or gravely disabled. (Conservatorship of Chambers (1977) 71 Cal.App.3d 277, 282 [139 Cal.Rptr. 357].) When involuntary intensive treatment is indicated, the LPS Act aut...
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Opinion Plaintiff and respondent Mike Lenk (Lenk) filed suit against his former employer, defendant and appellant Total-Western, Inc. (TWI), for breach of contract and fraud. In a bifurcated trial, the jury found in favor of Lenk and awarded him $210,320 in compensatory damages, $50,000 in emotional distress damages and $1 million in punitive damages. In the unpublished portion of th...
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The plaintiff in this action, Kwan Fai Mak, is also a defendant in a pending state capital proceeding. Mak filed this action in the United States District Court pursuant to the Administrative Procedure Act (APA) to compel the Federal Bureau of Investigation (FBI) to disclose information that may be useful to his defense in his capital sentencing proceedings. The present action is in federal court...
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Opinion On the evening of January 31, 1997, plaintiff Jamal Hassoon was wounded when he was hit by a round fired from a semiautomatic weapon by a passerby. The shooting occurred as Hassoon stood in Daldas Grocery, defendants’ grocery store on Eddy Street in the Tenderloin district of San Francisco. Plaintiff filed this suit for personal injury damages against the store’s.owners and one of their...
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Opinion In this action for indemnification, the trial court found the indemnification clause in the parties’ contract to be unenforceable because there was no mutual consent of the parties and because the clause was “procedurally” unconscionable. We reverse the judgment. Facts The Agreement Marin Storage & Trucking, Inc., doing business as Reliable Crane & Rigging (hereafter Reliable), is in th...
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Opinion This is an appeal from a judgment entered after the superior court denied a petition for writ of mandate, filed by appellants, by which they sought to compel the City of Pleasanton (the City) to set aside Measure P, a referendum measure defeated at a June 8, 1999 municipal election. We will affirm. Background Appellants are the owners and the proposed developer of a 45.75-acre parce...
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Opinion On May 24, 2000, the Orange County Juvenile Court declared Nada R. and Reema R. dependents and placed them in the physical custody of their mother, Maria G. Father Abdulaziz R. petitioned for a writ of habeas corpus and also appeals the judgment. Both have been consolidated for review.1 He argues (1) the juvenile court lacked subject matter jurisdiction, (2) certain evidentiary rulings dep...
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Opinion Plaintiff and real party in interest Ryan N. (Ryan), then 13 years of age, was sexually assaulted by another minor, defendant Joseph W. (Joseph) who was then 16 years of age, 1 while both teenagers were visiting a teenage son of petitioners and defendants Nicanor Romero and Gail Romero (together petitioners or the Romeros) in petitioners’ home. Ryan’s mother, real party...
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Opinion In San Bernardino Valley Audubon Society v. Metropolitan Water Dist. (1999) 71 Cal.App.4th 382 [83 Cal.Rptr.2d 836], we reversed a trial court judgment which approved a mitigated negative declaration for a project consisting of the adoption of the Lake Mathews Multiple Species Habitat Conservation Plan and Natural Community Conservation Plan (MSHCP/NCCP or Project). We foun...
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delivered the opinion of the Court. The Racketeer Influenced and Corrupt Organizations Act (RICO or- Act), 18 U. S. C. § 1961 et seq., makes it “unlawful for any person employed by or associated with any enterprise ... to conduct or participate ... in the conduct of such enterprise’s affairs” through the commission of two or more statutorily defined crimes — which RICO calls “a ...
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dissenting. The Milford Central School has invited the public to use its facilities for educational and recreational purposes, but not for “religious purposes.” Speech for “religious purposes” may reasonably be understood to encompass three different categories. First, there is religious speech that is simply speech about a particular topic from a religious point of view. The film in Lamb's Chapel...
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delivered the opinion of the Court. The Arkansas River rises in the mountains of Colorado just east of the Continental Divide, descends for about 280 miles to the Kansas border, then flows through that State, Oklahoma, and Arkansas and empties into the Mississippi River. On May 20, 1901, Kansas first invoked this Court’s original jurisdiction to seek a remedy for Colorado’s diversion of water from...
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C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Penry v. Johnson, 532 U. S. 782 (2001)....
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253 F.3d 1147 (9th Cir. 2001) CADENCE DESIGN SYSTEMS, INC., a Delaware corporation, Plaintiff-Appellant-Cross-Appellee,v.AVANT! CORPORATION, formerly Arcsys, Inc., a Delaware corporation, Defendant-Appellee-Cross-Appellant. Nos. 99-17648, 99-17649 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed June 11, 2001 D.C. No. CV-95-20828-RMW 1 Before: Joseph ...
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253 F.3d 443 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.THOMAS JAMES GARRETT, DEFENDANT-APPELLANT. No. 00-50303 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 11, 2001Filed June 11, 2001 [Copyrighted Material Omitted] Todd W. Burns, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-...
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252 F.3d 1102 (9th Cir. 2001) ROYAL FOODS CO. INC., PLAINTIFF-APPELLANT,v.RJR HOLDINGS INC., D/B/A T.G.I. FRIDAYS; RONALD BRENDZEL; JOSEPH KHOURY; CREDIT MANAGERS ASSOCIATIONS OF CALIFORNIA, A CALIFORNIA CORPORATION, DEFENDANTS-APPELLEES. No. 99-55634 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 6, 2001--Pasadena, CaliforniaFiled June 11, 2001 ...
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We have before us the question of whether the district court erred in dismissing appellant-debtors’ complaint under Federal Rule of Civil Procedure 12(b)(6) on the basis that reaffirmation and settlement agreements entered into by appellant-debtors during prior bankruptcy proceedings bar their later action against the same creditor for alleged violations of the automatic stay and discharge prov...
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Opinion Plaintiffs and appellants Jaimie and Christopher Fuller, and Brooke, Jamie and Robin Knowles, filed actions for wrongful death when their decedents were killed in an automobile accident on Highway 395 near the community of Olancha in Inyo County. Plaintiffs sued the other motorists involved, as well as defendant and respondent State of California, Department of Transportation (hereafter...
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Opinion 1. Introduction Real party in interest and appellant, Inland Counties Regional Center, Inc., doing business as Inland Regional Center, a California nonprofit corporation (IRC), appeals judgment entered in favor of plaintiff and respondent Ion Morgan Mason (Morgan). The State Department of Developmental Services (DDS) is also a respondent in this case and has filed a r...
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253 F.3d 1151 (9th Cir. 2001) KEVIN MURPHY, Plaintiff-Appellant,v.ROBERT SHAW, Unit Sergeant; LARRY BEARLEY, Hearings Officer; MICHAEL MAHONEY, Bureau Warden; MYRON BEESON, Bureau Warden; and RICHARD S. DAY, Director, Department of Corrections, Defendants-Appellees. No. 97-35989 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed June 12, 2001 On Remand from the U...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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*825 ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel memorandum disposition shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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Opinion Notwithstanding a negotiated plea agreement that stipulated defendant was vulnerable to a six-year prison term, he challenges his six-year sentence. On our own motion, we noted that defendant had failed to obtain a certificate of probable cause and we asked the parties to file supplemental briefs addressing the significance of this fact. As discussed below, the appeal will be dismissed bec...
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Carlos Arias was convicted of witness intimidation in violation of 18 U.S.C. § 1512(b), but acquitted of conspiracy to distribute and to possess with intent to distribute 5 kilograms of cocaine, possession with intent to distribute 4 kilograms of cocaine, and use of a handgun in relation to a drug trafficking crime. Arias appeals his conviction, which we affirm, and the government cross-appeals...
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ORDER This court’s opinion, filed March 12, 2001, is amended as follows: 1. On page 3110 of the slip, the first sentence of the second full paragraph reads: Here, while Bragg appealed his conviction in the state court alleging that facts on the record established ineffective assistance of counsel, he never moved for an evidentiary hearing to resolve any factual ambiguities. The foregoing ...
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Opinion An employer delayed in paying workers’ compensation benefits. When the employer made a retroactive payment, it failed to include accrued interest. The Workers Compensation Appeals Board (WCAB) imposed two consecutive 10 percent penalties: one for the late benefit payment and one for the failure to pay interest. (Lab. Code, § 5814.) We hold that when an employer or carrier makes a late work...
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The district court dismissed with prejudice federal prisoner Alejandro Ordonez’s civil rights action for failure to timely file an amended complaint. Although the district court received Ordonez’s complaint within the filing deadline, the district court rejected and returned the complaint because it did not comply with the Central District of California Local Civil Rule 3.5.1. Ordonez appealed. W...
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Myron S. Gritchen filed, a complaint with the Long Beach Police Department about the conduct of Gordon W. Collier, a Long Beach police officer who stopped Gritchen for speeding. Collier took umbrage and threatened to sue Gritchen for defamation. Most complaints about public officials are privileged in California, but state law allows peace officers to bring an action for defamation against someon...
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Opinion by Judge CANBY; Partial Concurrence and Partial Dissent by Judge REINHARDT. This appeal is an outgrowth of a dispute over the right of union representatives to visit the construction sites of a non-union general contractor in order to inspect for unsafe conditions or violations of prevailing wage policies applicable to governmental construction contracts. The plaintiffs are four represent...
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254 F.3d 802 (9th Cir. 2001) HERMAN FAMILY REVOCABLE TRUST, PLAINTIFF-COUNTER-DEFENDANT, AND HOWARD W. LITTELL, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,v.TEDDY BEAR, THE VESSEL TEDDY BEAR, OFFICIAL NO. 569,147, HER ENGINES, TACKLE, FURNITURE, MACHINERY, EQUIPMENT AND APPURTENANCES, ETC., IN REM; MARLINEER INTERNATIONAL, INC., A CORPORATION, IN PERSONAM; TED TATE, IN PERSONAM, DEFENDANTS-COUNTER-...
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Opinion Introduction Plaintiff Denver D. Darling, Inc., doing business as Darco Construction (Darco), a subcontractor, sued the general contractor, defendant Controlled Environments Construction, Inc. (Controlled) to recover the retention proceeds being withheld by Controlled. Darco also filed suit against Aetna Casualty & Surety Company of America (formerly Travelers’ Insurance, ref...
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*1246 Opinion A party testified falsely while under oath at his deposition. The original transcript of the deposition, unseen by the deponent, is sent to. his counsel where it remains. Here we conclude; that, although the testimony purportedly was false, it was contained in a document that was yet to be delivered and, therefore, did not constitute perjury in violation of Penal Co...
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108 Cal.Rptr.2d 145 (2001) 25 Cal.4th 868 24 P.3d 1174 The PEOPLE, Plaintiff and Respondent, v. Samuel Earl ANSELL, Jr., Defendant and Appellant. No. S079744. Supreme Court of California. June 14, 2001. *147 William O'Neill III, Sacramento, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, Chief Assistant Attorneys General...
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ORDER On March 13, 2001, upon a vote of a majority of nonrecused regular active judges of this court, we ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. 1 By the same order, we directed that the three-judge panel opinion, Martirosyan v. INS, 229 F.3d 903 (9th Cir.2000), “shall not be cited as precedent by or to this court or any district court of the Ni...
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This case requires us to draw the line between the jurisdiction of our court and the jurisdiction of the Court of Appeals for the Federal Circuit. It also illustrates the relationship between pleading in the district court and federal appellate jurisdiction and serves as a reminder that pleading a patent claim in the complaint will, in all likelihood, put the case on the path to the Federal Circui...
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S.D. Myers, Inc. (Myers) appeals from a summary judgment in favor of the City and County of San Francisco (City). Myers argues that Chapter 12B of the San Francisco Administrative Code (Ordinance) is invalid under the dormant Commerce Clause, Due Process Clause, and California law. The Ordinance requires contractors with the City to provide nondiscriminatory benefits to employees with registere...
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Opinion I. Introduction The People of the State of California (People), represented by the Attorney General and a number of district and city attorneys, sought civil penalties, restitution, and injunctive relief against Fremont Life Insurance Company (Fremont Life) and its parent company, Fremont General Corporation (defendant) in an action alleging unfair business practices and false *1263 ...
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*1287 Opinion Introduction Phillip Gangwish, injured while a firefighter/inspector for the City of Los Angeles Fire Department (City), petitions this court for increased compensation under Labor Code section 4650 for late payment of permanent disability (PD) benefits, and under section 5814 for nonpayment under section 4650. 1 The Workers’ Compensation Appeals Board (WCAB) denied the incr...
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Opinion by Judge RONALD M. GOULD; Dissent by BETTY B. FLETCHER. This is a products liability action involving pacemakers containing the allegedly defective ENCOR Bipolar Passive Fixation Pacing Lead Model 380-854 (“854 lead”). Plaintiff-Appellant Robin Zinser (“Zinser”) filed a class action complaint alleging negligence, products liability, negligent misrepresentation, fraud and deceit, breach of...
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533 U.S. 218 (2001) UNITED STATES v. MEAD CORP. No. 99-1434. United States Supreme Court. Argued November 8, 2000. Decided June 18, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *219 *220 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenti...
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533 U.S. 262 (2001) IDAHO v. UNITED STATES et al. No. 00-189. United States Supreme Court. Argued April 23, 2001. Decided June 18, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *263 *264 Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia, Kennedy...
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Opinion Plaintiffs Rebecca Craddock and Ronald Craddock sued defendant Kmart Corporation for personal injury and premises liability arising out of an accident suffered by Rebecca Craddock at a Kmart store. Plaintiff Ronald Craddock, Rebecca’s husband, alleged loss of consortium. (We sometimes refer to the plaintiffs by their first names for clarity.) After jury trial, plaintiffs won a special verd...
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Opinion Defendant Antonio Trujillo Garcia appeals from the judgment entered after a jury convicted him of spousal rape. He raises several claims of trial court error, primarily centered around the requirement of corroboration mandated by Penal Code section 262, subdivision (b). 1 He contends: (1) the trial court erred in denying the motion to dismiss the charge of spousal rape for lack of cor...
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C. A. Fed. Cir. Certiorari granted....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Tuan Anh Nguyen v. INS, ante, p. 53....
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254 F.3d 825 (9th Cir. 2001) LORI GUIDROZ-BRAULT; FREDERICK BRAULT; JOYCE MATTHEWS; BRYNN C. MATTHEWS; WENDY STODDARD, INDIVIDUALLY, AND AS REPRESENTATIVE OF THE CLASS OF THOSE SIMILARLY SITUATED, AND AS PARENT OF SEAN STODDARD AND DUSTIN STODDARD, MINOR, PLAINTIFFS-APPELLANTS,v.MISSOURI PACIFIC RAILROAD COMPANY; UNITED PACIFIC RAILROAD COMPANY, A DELAWARE CORPORATION; SOUTHERN PACIFIC TRANSPO...
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The Major Crimes Act, 18 U.S.C. § 1153, (“the MCA”) provides for federal jurisdiction over certain major crimes committed by Indians on Indian Reservations. Because some of these offenses are punishable by the federal government only when they occur on Indian Reservations or other federal enclaves, federal definitions do not exist for certain MCA crimes. The MCA fills this gap by instructing that...
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254 F.3d 832 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.ESTEBAN CORRAL-GASTELUM, DEFENDANT-APPELLANT. No. 99-10582 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT June 18, 2001 D.C. No. CR-99-00224-FRZ BEFORE: Stephen Reinhardt, Edward Leavy, and Barry G. Silverman, Circuit Judges. ORDER 1 A majority of the panel h...
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Opinion by Judge LEAVY; Partial Concurrence and Partial Dissent by Judge REINHARDT. Shelley Sommatino (“Sommatino”) appeals the district court’s dismissal, with prejudice of her action in which ghe asserted claims under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e. The district court concluded that Sommatino did not sta...
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Opinion Respondent James A. Petricka was arrested for driving under the influence of alcohol (Veh. Code, § 23152). A chemical test of his blood revealed a blood-alcohol level of .15 percent. Appellant Department of Motor Vehicles (DMV) suspended Petricka’s driver’s license after an administrative hearing. Petricka sought judicial review of the suspension by a petition for writ of mandate, in wh...
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Opinion California Constitution, article I, section 14, provides in part, “A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.” We are called upon to determine if the failure to follow the procedures regarding noncertified interpreters set forth in California Rules of Court, rule 984.2, 1 in and of itself, ...
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I. Overview Appellant Curtis Freeman (“Freeman”) appeals the district court’s judgment, following a bench trial, allowing Allstate Life Insurance Company (“Allstate”) to rescind a life insurance policy issued to Freeman’s deceased wife, Shelley. The district court found that Mrs. Freeman had made a material misstatement while applying for the policy. Freeman argues that his wife’s innocent miss...
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Opinion by Judge RASHIMA; Dissent by Judge FERGUSON I. Appellant Yoji Oyama filed an adversary proceeding to determine the debt of Michael Sheehan nondischargeable. Sheehan moved to dismiss for failure to serve the complaint on the debtor within the 120-day period provided in Rule 4(m) of the Federal Rules of Civil Procedure. The bankruptcy court granted Sheehan’s motion to dismiss, finding that ...
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253 F.3d 520 (9th Cir. 2001) IN RE: FIRST T.D. & INVESTMENT, INC.; JOINT DEVELOPMENT, INC., DEBTORS.R. TODD NEILSON, CHAPTER 7 TRUSTEE, PLAINTIFF-APPELLEE,v.ANGELA SHIU RONG CHANG; ANGELA SHIU RONG CHANG, F/B/O THE ANGELA CHANG FAMILY TRUST; CYNTHIA L. LIEN; GALAXY INDUSTRIAL CORPORATION; ANNA P. JEN KIN; WEN F. KUO; TSU C. KUO; SZE MING MA; CHENG H. MA; IRENE WERNER; HAITANG LI; RU LIN WU...
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In 1993, Appellant Pantelis Antonakeas was arrested in California, where he lived at the time, and was brought to Hawaii to stand trial in U.S. district court for one count of conspiracy to distribute cocaine and two counts of possession of cocaine with intent to distribute. A jury convicted him of all three counts, and he was released on bail pending sentencing. However, instead of appearing f...
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*1364 Opinion Joe Quintana was convicted by a court of foreign object penetration of a minor who was under age 14 and more than 10 years younger than he (Pen. Code, § 289, subd. (j)), and was sentenced to the low term of three years in state prison. He argues that the judgment must be reversed because: (1) there was no substantial evidence of vaginal penetration; or (2) he was un...
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Opinion by Judge TROTT: Dissent by Judge BERZON This appeal arises from the sentence imposed on defendant-appellant, Michael D. Pirello, who pled guilty to using the Internet to commit wire fraud in violation of 18 U.S.C. § 1343. The district court applied a two-level enhancement to Pirel-lo’s base offense level under United States Sentencing Guidelines § 2Fl.l(b)(3) (“U.S.S.G. § 2Fl.l(b)(3)”) fo...
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Although we have previously upheld application of a two-level adjustment for obstruction of justice under USSG § 3C1.1 (Nov. 1998) for providing false information to a probation officer, we have never considered whether submission of a false financial affidavit to a magistrate judge for the purpose of obtaining appointed counsel is sufficiently related to the offense of conviction to support the ...
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We review denial of leave to proceed in forma pauperis for an abuse of discretion. Minetti v. Port of Seattle, 152 F.3d 1113, 1115 (9th Cir.1998) (per curiam). Because Calhoun’s complaint sought monetary relief for actions taken in the course of employment by persons who are immune from suit, the district court properly denied in forma pauperis status. See Bogan v. Scott-Harris, 523 U.S. 44, ...
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The Center for Biological Diversity (the “Center”) appeals the district court’s grant of summary judgment in favor of the Secretary of the Interior (the “Secretary”). The district court rejected the Center’s effort to compel the Secretary to issue certain findings in response to petitions to list two species for protection under the Endangered Species Act (“ESA”). 16 U.S.C. § 1531 et seq. We fi...
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Opinion Introduction This is an appeal by Wilshire Center Marketplace (WCM) from an order denying its motion to quash and recall a writ of execution on a judgment issued to the Los Angeles Unified School District of Los Angeles County (LAUSD). The primary issues presented are (1) whether the judgment became final before WCM was awarded its appellate litigation expenses; (2) whether t...
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Opinion In this case arising under the “Three Strikes” law, defendant Steve Byrd appeals from a judgment following his conviction for 12 counts of robbery (Pen. Code, § 211 1 ), one count of mayhem (§ 203), one count of attempted premeditated murder (§§ 664/187, subd. (a)), and one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), with enhancements for personal us...
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108 Cal. Rptr. 2d 181 (2001) 25 Cal. 4th 894 24 P.3d 1204 The PEOPLE, Plaintiff and Respondent, v. Michael Thomas CHEEK, Defendant and Appellant. No. S083305. Supreme Court of California. June 21, 2001. *182 Steven Fama, under appointment by the Supreme Court, for Defendant and Appellant. *183 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Ass...
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Opinion by Judge WARDLAW: Concurrence by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge RONALD M. GOULD. High County Resources (“HCR”) and Glacier Energy Company (“Glacier”) (collectively “Petitioners”) petition for review of two Federal Energy Regulatory Commission (“FERC”) orders dismissing their license applications for hydroelectric projects on tributaries of the Skagit Riv...
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Ronald Zimmerman, Steffi Zimmerman, Jim Hines, and the Jim Hines Foundation (collectively, “Plaintiffs”) appeal the dismissal of their complaint against the City of Oakland and various individuals employed by the city (collectively, “Defendants”). We reverse in part, affirm in part, and remand. I According to the complaint, the Zimmer-mans own property in Oakland that is zoned for light industrial...
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Opinion In mandamus proceedings alleging failure to comply with the California Environmental Quality Act (CEQA), the petitioner is required to request a hearing within 90 days of filing the petition. (Pub. Resources Code, § 21167.4, subd. (a).) 1 In Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644 [11 Cal.Rptr.2d 850] (Dunn-Edwards), 2 this court held t...
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Opinion Maria Carrillo Corona, a Mexican national, pleaded guilty to conspiracy to transport marijuana (Pen. Code, § 182) and was placed on formal probation for three years. Corona appeals, contending the court erroneously denied her motion to suppress incriminating statements she made to the police officers. She contends that the officers did not (1) advise her of her rights under the Multilat...
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108 Cal.Rptr.2d 262 (2001) 90 Cal.App.4th 22 Judith NEAL, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; Herman NEAL, Real Party In Interest. No. G028185. Court of Appeal, Fourth District, Division Three. June 21, 2001. *263 Law Offices of McGregor & Mosier, Holly H. McGregor and Robert A. Mosier, Laguna Hills, for Petitioner. No appearance for Respondent. Martin & McCormick, Joh...
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Opinion Denise Rossi appeals from a postjudgment order in this dissolution case, awarding all the lottery winnings concealed by Denise *36during the dissolution proceedings to her ex-husband, Thomas Rossi.1 Her argument is twofold: that Thomas had unclean hands and therefore was not entitled to a share of the lottery prize, and that her conduct did not meet the statutory definition for the penalt...
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108 Cal.Rptr.2d 266 (2001) 90 Cal.App.4th 28 GREAT WESTERN BANK, Plaintiff, v. Herman KONG, Defendant and Appellant; Frank Lee et al., Defendants and Respondents. No. F034149. Court of Appeal, Fifth District. June 22, 2001. *267 Thomas & Snell and Marcus D. Magness, Fresno, for Defendant and Appellant. Arter & Hadden, Irvine, Ralph A. Kerstetter, San Francisco, and Carol A. Jasinski, for Defendan...
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108 Cal.Rptr.2d 198 (2001) 90 Cal.App.4th 45 Richard Crawford WYCKOFF, et al., Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent. No. H020015. Court of Appeal, Sixth District, Division Four. June 4, 2001. Review Denied September 12, 2001. *199 Stuart B. Esner and Andrew N. Chang, Los Angeles, Esner & Chang; Greene, Broillet, Taylor, Wheeler & Panish, Browne G...
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108 Cal. Rptr. 2d 409 (2001) 25 Cal. 4th 1046 25 P.3d 618 Shawn Garfield PRICE, Petitioner, v. The SUPERIOR COURT of Riverside County, Respondent; The People, Real Party in Interest. No. S085852. Supreme Court of California. June 25, 2001. *411 David Joseph Macher, Murrieta, for Petitioner. No appearance for Respondent. Grover Trask, District Attorney, and Elaina Gambera Bentley, Deputy District ...
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delivered the opinion of the Court. Deboris Calcano-Martinez, Sergio Madrid, and Fazila Khan are all lawful permanent residents of the United States subject to administratively final orders of removal. They conceded that they are deportable based upon their past criminal convictions, but each filed both a petition for review in the Second Circuit pursuant to 8 U. S. C. § 1252(a)(1) (1994 ed., Supp...
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533 U.S. 483 (2001) NEW YORK TIMES CO., INC., et al. v. TASINI et al. No. 00-201. United States Supreme Court. Argued March 28, 2001. Decided June 25, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *485 *485 *486 Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., f...
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533 U.S. 431 (2001) FEDERAL ELECTION COMMISSION v. COLORADO REPUBLICAN FEDERAL CAMPAIGN COMMITTEE No. 00-191. United States Supreme Court. Argued February 28, 2001. Decided June 25, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT *433 *433 *434 *435 *436 Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined. Thom...
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delivered the opinion of the Court. This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. I Respondent Hicks1 is one of about 900 members of the Fallon Paiute-Shoshone Tribes of western Nevada. ...
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533 U.S. 289 (2001) IMMIGRATION AND NATURALIZATION SERVICE v. ST. CYR No. 00-767. United States Supreme Court. Argued April 24, 2001. Decided June 25, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *290 *291 Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed a dissenting opinion, post, p....
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Theodore Chester Rulas, an Arizona state prisoner, appeals pro se the district court’s judgment for the defendant following a bench trial in his 42 U.S.C. § 1983 claim against police officer Jaime Flores. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. I.FACTUAL AND PROCEDURAL BACKGROUND In July 1998, Rulas filed several § 1983 claims against Flores stemming from Rulas’ arrest...
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We must decide whether a conviction “set aside” pursuant to the California probation statute is an “expunged” conviction under the United States Sentencing Guidelines. I In a superseding indictment filed in the Northern District of California on August 27, 1991, the government charged Alfonso Hayden and his 16 co-defendants with 92 counts of cocaine and heroin trafficking, possession ...
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We must decide in this case whether an allegation of bias by an immigration judge (“IJ”) presents a colorable due process claim reviewable by this court despite the jurisdictional limitations of IIRIRA’s transitional rules, and whether such a claim requires administrative exhaustion. We conclude that a bias claim is reviewable, but must be exhausted before the Board of Immigration Appeals (“BIA...
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Plaintiffs Lester G. and Jean D. Adams (the “Adamses”) bring this second appeal to determine the scope of their rights as inholders, owners of private property completely surrounded by federally owned National Forest System lands. In the first appeal, we remanded the matter to the district court to determine the rights and responsibilities of both parties to ensure access and stewardship of pub...
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When federal law enforcement officers take a juvenile into custody, 18 U.S.C. § 5033 requires that they notify the juvenile’s parents of the custody and “of the rights of the juvenile.” In several recent cases, we have clarified the meaning of § 5033. We have explained that “children need parental involvement during interrogation” and that the purpose of § 5033 is to provide “meaningful protectio...
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108 Cal. Rptr. 2d 188 (2001) 25 Cal. 4th 1111 24 P.3d 1210 The PEOPLE, Plaintiff and Respondent, v. Ejaan Dupree McCOY et al., Defendants and Appellants. No. S087893. Supreme Court of California. June 25, 2001. Rehearing Denied August 22, 2001. *190 Mark D. Greenberg, Oakland, under appointment by the Supreme Court, for Defendant and Appellant Ejaan Dupree McCoy. David McNeil Morse, San Francisco...
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Ct. App. Wis. Motion of respondent *928for leave to proceed in forma pauperis granted. Certiorari granted....
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C. A. 7th Cir. Certiorari granted, judgment vacated, and ease remanded for further consideration in light of United States v. Mead Corp., ante, p. 218....
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108 Cal. Rptr. 2d 385 (2001) 25 Cal. 4th 1082 25 P.3d 598 The PEOPLE, Plaintiff and Respondent, v. Travis SIMON, Jr., Defendant and Appellant. No. S077866. Supreme Court of California. June 25, 2001. *389 L. Richard Braucher, Richmond, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner...
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108 Cal.Rptr.2d 553 (2001) 90 Cal.App.4th 215 Michael Frank GOODWIN, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Los Angeles County Sheriff's Department et al., Real Parties in Interest. No. B149818. Court of Appeal, Second District, Division Five. June 26, 2001. *555 Jeffrey S. Benice, Irvine, for Petitioner. Steve Cooley, District Attorney, Brentford J. Ferreira and Shi...
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Opinion The statewide uniform guideline for determining child support permits the court, in lieu of using actual income, to impute income to a parent based on his or her earning capacity. Earning capacity, in turn, requires that the parent have both the ability and the opportunity to work. In State of Oregon v. Vargas (1999) 70 Cal.App.4th 1123 [83 Cal.Rptr.2d 229], we held this same earning capa...
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255 F.3d 661 (9th Cir. 2001) TRUSTEES OF THE DIRECTORS GUILD OF AMERICA-PRODUCER PENSION BENEFITS PLANS, a collectively bargained, joint-trusteed labor-management trust, Plaintiff-Appellee,v.SUZANNE R. TISE, an individual, Defendant-Appellee,CYBELE TISE-MYERS, an individual; CHLOE TISE-MYERS, an individual, Defendants,andYVONNE CURRY, an individual, Defendant-Appellant.TRUSTEES OF THE DIRECTOR...
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OPINION California state prisoner Ahmad J. Ha-san (“Hasan”) appeals the district court’s dismissal of his habeas petition as untimely under 28 U.S.C. § 2244(d). 1 We have jurisdiction pursuant to Section 2253. We reverse and remand for further proceedings consistent with this opinion. Background In August 1993 a Contra Costa County Superior Court jury convicted Hasan of attempted first ...
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254 F.3d 859 (9th Cir. 2001) QUIRINO CANEDO OCHAVE AND FELICITAS PAGADOR OCHAVE, PETITIONERS,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 99-70739 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted April 17, 2001*Filed June 26, 2001 [Copyrighted Material Omitted] Judith L. Wood, Los Angeles, California, for the petitioners. Mary Jane ...
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Defendant Thomas Andrew Pierre, Jr., appeals his conviction, after a jury trial, of assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3) and 1153. We reverse and remand. FACTS AND PROCEDURAL HISTORY Defendant, who is a member of the Confederated Tribes of the Umatilla Reservation, stabbed Nelson John in the neck, chest, abdomen, and arm. The stabbing took place on the Umati...
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The Securities and Exchange Commission (SEC) sought a permanent injunction and civil penalties against Kenneth D. Ough for alleged violations of Section 17(a) of the Securities Act, 15 U.S.C. § 77q(a) (1994), amended by Pub.L. 106-554 § 302(b), 114 Stat. 2763, 2763A-452 (Dec. 21, 2000); Section 10(b) of the Exchange Act, 15 U.S.C. § 78j(b) (1994), amended by Pub.L. 106-554...
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Plaintiff Joseph Midgett brought this action against Defendant Tri-County Metropolitan Transportation District of Oregon (“Tri-Met”), seeking a permanent injunction and compensatory damages for alleged violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 to 12213. The district court granted summary judgment to Tri-Met. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Plai...
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254 F.3d 882 (9th Cir. 2001) CITY OF LOS ANGELES, HARBOR DIVISION, A MUNICIPAL CORPORATION, PETITIONER-APPELLANT, AND KAISER INTERNATIONAL, A CORPORATION, PETITIONER,v.SANTA MONICA BAYKEEPER, A NON- PROFIT CORPORATION; TERRY TAMMINEN, AN INDIVIDUAL, RESPONDENTS-APPELLEES. Nos. 00-55396, 00-55397 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 5, 2001F...
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C. A. 8th Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted limited to the question presented by the Solicitor General in his brief for the United States as amicus curiae....
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*231Opinion An heir hunter locates a missing or lost heir. As consideration for information concerning the inheritance, the heir executes an assignment giving the heir hunter a percentage of the inheritance. She also signs, but later revokes, a general power of attorney in favor of the attorney who represents the heir hunter. She also refuses to sign a letter authorizing the attorney to represent...
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Petitioner David Murtishaw, a California death row inmate, appeals the district court’s denial, on the merits and after an evidentiary hearing, of his habeas corpus petition challenging: 1) his 1979 conviction for three counts of first degree murder and one count of assault with attempt to commit murder; and 2) his 1983 sentence of death. We conclude that the district court properly denied Murt...
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James Allen was convicted in state court of robbery in violation of California law. His conviction became final on December 10, 1996. He filed a state habeas petition on October 30, 1997, which was denied on November 24, 1998. He filed his federal habeas petition pro se on January 20, 1999, which the district court dismissed as untimely, and Allen appeals. I Allen’s federal habeas petition ...
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108 Cal.Rptr.2d 278 (2001) 90 Cal.App.4th 142 DANA COMMERCIAL CREDIT CORPORATION, Plaintiff and Respondent, v. FERNS & FERNS et al., Defendants and Appellants. No. B133453. Court of Appeal, Second District, Division Three. June 27, 2001. *279 Ferns, Adams & Associates, Barry Ferns, Paasadena, and Laurel Adams, Concord, for Defendants and Appellants. Younesi & Yoss, Jan A. Yoss, Los An...
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Opinion Mr. Harrott is an attorney. He received a gun collection in payment for legal services rendered to clients who had pleaded guilty to receiving stolen property. The Kings County Sheriff’s Department, which was in possession of the gun collection, did not assert that one of the weapons, a semiautomatic rifle (the rifle), was stolen property, but nevertheless refused to deliver it to Mr. Har...
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108 Cal.Rptr.2d 436 (2001) 25 Cal.4th 1124 25 P.3d 641 PEOPLE, Plaintiff and Respondent, v. Susan Lee RUSSO, Defendant and Appellant. In re Susan Lee Russo on Habeas Corpus. No. S088368. Supreme Court of California. June 28, 2001. *438 Jim Fahey, Areata, under appointment by the Supreme Court; George Nunez, Fresno; and Ralston L. Courtney, for Defendant and Appellant. Daniel E. Lungren and Bill L...
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255 F.3d 974 (9th Cir. 2001) MARK STEVEN VAN BUSKIRK, PETITIONER-APPELLANT,v.GEORGE H. BALDWIN, RESPONDENT-APPELLEE. No. 00-35640 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 9, 2001--Portland, OregonFiled June 28, 2001 1 NOTE: THIS OPINION HAS BEEN AMENDED. SEE AMENDED OPINION AT 265 F.3d 1080. ...
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Opinion Defendant Duke Kimberly Bolter, an inmate at Pelican Bay State Prison (PBSP), is charged with the murder of fellow inmate William Stanton Boyd. The trial court granted defendant’s Penal Code section 995 motion as to one of three alleged special circumstances, and dismissed the charge under section 190.2, subdivision (a)(10), that the victim was a witness to a crime and was intentionally ki...
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108 Cal.Rptr.2d 753 (2001) 90 Cal.App.4th 288 COUNTY OF SAN LUIS OBISPO, Petitioner, v. The SUPERIOR COURT of San Luis Obispo County, Respondent; Jack Munari, Real Party in Interest. No. B147202. Court of Appeal, Second District, Division Six. June 28, 2001. Rehearing Denied July 27, 2001. Review Denied October 10, 2001. *755 James B. Lindholm, Jr., San Luis Obispo, County Counsel, Raymond A. Bie...
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109 Cal.Rptr.2d 145 (2001) 90 Cal.App.4th 275 Barry A. FISHER, as Receiver, etc., Plaintiff and Respondent, v. Ronald Gene GIBSON, Defendant and Appellant. No. B139450. Court of Appeal, Second District, Division Two. June 28, 2001. *147 Cole & Loeterman and Dana M. Cole, Los Angeles, for Defendant and Appellant. Saltzburg, Ray & Bergman and Paul T. Dye, Los Angeles, for Plaintiff and Resp...
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108 Cal.Rptr.2d 739 (2001) 90 Cal.App.4th 255 Carla R. DUDLEY, Plaintiff and Appellant, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent No. C036154. Court of Appeal, Third District. June 28, 2001. *741 Martinez-Senftner Law Firm, Gloria P. Martinez-Senftner, Sacramento, and Jonathan Regent Tyrell, for Plaintiff and Appellant. Bruce A. Behrens, Chief Counsel, Breland C. Gowan, Deputy Chi...
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C. A. 9th Cir. Certiorari granted limited to the following question: *949“Whether the Court of Appeals properly determined that a temporary moratorium on land development does not constitute a taking of property requiring compensation under the Takings Clause of the United States Constitution?”...
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Opinion by Judge McKEOWN; Concurrence by Judge PREGERSON. This case sits at the intersection of two complicated bodies of law: the dual sovereignty exception to double jeopardy, and the sovereign power of Indian tribes. We must determine whether an Indian tribe and the federal government may twice prosecute a “non-member Indian”1 for the same conduct without offending the Double Jeopardy Clause. ...
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Sup. Ct. S. C. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Palazzolo v. Rhode Island, ante, p. 606....
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C. A. 9th Cir. . Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Motion of respondent for *945leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Zadvydas v. Davis, ante, p. 678....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of INS v. St. Cyr, ante, p. 289....
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109 Cal.Rptr.2d 154 (2001) 90 Cal.App.4th 297 Andrew HOLMES et al., Plaintiffs and Respondents, v. CALIFORNIA NATIONAL GUARD et al., Defendants and Appellants. Andrew Holmes, Plaintiff and Appellant, v. California National Guard et al., Defendants and Respondents. Nos. A083451, A085180. Court of Appeal, First District, Division Three. June 29, 2001. Review Denied October 17, 2001. *158 Howard, Ri...
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108 Cal. Rptr. 2d 471 (2001) 25 Cal. 4th 1194 25 P.3d 670 Nicholas F. COSCIA, Plaintiff and Appellant, v. McKENNA & CUNEO et al. Defendants and Respondents. No. S089226. Supreme Court of California. July 2, 2001. *472 Nicholas F. Coscia, in pro. per.; Milberg & De Phillips, Russell M. De Phillips and Roy L. Carlson, Jr., Cardiff By The Sea, for Plaintiff and Appellant. Gene Moran as Amicu...
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108 Cal.Rptr.2d 599 (2001) 25 Cal.4th 1180 25 P.3d 1081 The PEOPLE, Plaintiff and Respondent, v. Robert Louis MARTIN, Defendant and Appellant. No. S087880. Supreme Court of California. July 2, 2001. *600 Sharon M. Jones, under appointment by the Supreme Court, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons, Assistan...
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The Supreme Court has held that the Eleventh Amendment to the Constitution grants the states immunity from suit, in federal court, by private individuals seeking money damages for violations of the Americans with Disabilities Act. Because the district court should have dismissed this federal lawsuit against the California Senate Rules Committee when the Committee asserted its Eleventh Amendment...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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Frank Najjor appeals his conviction and sentence for two counts of bank fraud in violation of 18 U.S.C. § 1344 and 18 U.S.C. § 2. The district court sentenced Najjor to thirty-three months in custody and ordered Najjor to pay restitution to Home Federal Savings and Loan (“Home Federal”) and Torrey Pines Bank (“Torrey Pines”). On appeal, Najjor contends that Count One of the indictment was barred ...
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108 Cal.Rptr.2d 669 (2001) 90 Cal.App.4th 466 Carl E. JONES et al., Plaintiffs, Cross-defendants and Appellants, v. Raymond J. WAGNER et al., Defendants, Cross-complainants and Respondents. No. E026412. Court of Appeal, Fourth District, Division Two. June 8, 2001. *671 Caldwell, Kennedy & Porter and Ruth Ann Magnuson, for Plaintiffs, Cross-defendants and Appellants. Thorpe and Thorpe, Vincent...
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OPINION Debtor Lillian B. Maynard (“Debtor”) filed a motion to value the real property securing a claim held by Appellant Highland Federal Bank (“Highland”) at $180,000. The motion sought avoidance of Highland’s lien under § 506(d) 2 to the extent the lien exceeded the value of the property. Shortly before the hearing on the motion, Debtor amended her motion to reduce the reque...
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Opinion by Judge GREENBERG; Concurrence by Judge RAWLINSON I. INTRODUCTION AND BACKGROUND John Leonard Rousseau, Jr. appeals from his conviction on two counts of possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Rousseau raises three issues on appeal: (1) he was arrested unconstitutionally because the police did not have probable cause for the arrests; (2) the dis...
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Opinion by Judge O’SCANNLAIN; Dissent by Judge BERZON We must decide whether the trial judge must formally determine at the plea colloquy whether a statutorily-authorized sentence enhancement will apply as a matter of law, notwithstanding the defendant’s acknowledgment in open court that he understands the maximum possible penalty including such potential enhanced sentence. I Fabian Barrios-Gutier...
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255 F.3d 990 (9th Cir. 2001) U.S. WEST COMMUNICATIONS, INC., A COLORADO CORPORATION, PLAINTIFF-APPELLEE,v.WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION, AN AGENCY ORGANIZED AND EXISTING UNDER THE LAWS OF THE STATE OF WASHINGTON; ANNE LEVINSON, AS MEMBER OF THE WASHINGTON UTILITIES AND TRANSPORTATION COMMISSION; RICHARD HEMSTAD, AS MEMBER OF THE WASHINGTON UTILITIES AND TRANSPORTATION COMM...
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Appellant Gordon T. Carey (“Carey”) filed suit against United Airlines (“the airline”) for damages arising out of an incident between him and a flight attendant while flying from Costa Rica to Los Ange-les. Carey brought claims of intentional infliction of emotional and mental distress, *1046 negligent infliction of emotional and mental distress, and false imprisonment. Carey appea...
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255 F.3d 1035 (9th Cir. 2001) JOSE A. SONODA, PLAINTIFF-APPELLANT,v.ANTONIO R. CABRERA, PERSONALLY AND IN HIS OFFICIAL CAPACITY AS SECRETARY OF DEPARTMENT OF FINANCE; FROILAN C. TENORIO, PERSONALLY AND IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE COMMONWEALTH OF THE NORTHERN MARIANA ISLANDS, DEFENDANTS-APPELLEES. No. 00-15426 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argu...
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Opinion by Judge BETTY B. FLETCHER: Dissent by Judge O’SCANNLAIN Jaswant Lai and his family, citizens of Fiji of Indo-Fijian ethnic origin, petition this court for review of a decision of the Board of Immigration Appeals (“BIA”). In May 1994, an Immigration Judge (“IJ”) granted asylum to the family, finding persecution based on religion and political opinion. The INS appealed and the BIA reversed...
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255 F.3d 1054 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.JESUS RODRIGUEZ-CRUZ, DEFENDANT-APPELLANT.UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.CARLOS JAVIER GUTIERREZ-SANCHEZ, DEFENDANT-APPELLANT.UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.LUIS ALBERTO MEZA-ROSARIO, DEFENDANT-APPELLANT. No. 00-50351, No. 00-50352, No. 00-50366 UNITED STATES COURT OF APPEALS FO...
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108 Cal.Rptr.2d 821 (2001) 90 Cal.App.4th 494 Henry BARNETT, Plaintiff and Appellant, v. PENSKE TRUCK LEASING CO., L.P., et al., Defendants and Respondents. No. B140195. Court of Appeal, Second District, Division One. July 3, 2001. Review Denied September 26, 2001. *822 Law Offices of A. Jay Norton and A. Jay Norton for Plaintiff and Appellant. Ford, Walker, Haggerty & Behar and Maxine J. Leb...
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Opinion Appellant David A. Clark, Jr. (Clark), a bail bondsman, appeals from an order that found he had no interest in certain real property obtained by one of his bail bond clients with embezzled funds, and enjoined him from executing or recording any instrument affecting the property. 1 On appeal, Clark challenges the order on jurisdictional, legal and constitutional ground...
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Opinion Alberto Camargo was killed when his tractor rolled over as he was driving over a large mound of manure in a corral belonging to Tjaarda Dairy. Camargo was an employee of Golden Cal Trucking, and Golden Cal Trucking was an independent contractor Tjaarda Dairy had hired to scrape the manure out of its corrals and to haul it away in exchange for the right to purchase the manure at a discount...
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108 Cal.Rptr.2d 484 (2001) 25 Cal.4th 1212 25 P.3d 681 The PEOPLE, Plaintiff and Respondent, v. Linda Jean MASLOSKI, Defendant and Appellant. No. S088091. Supreme Court of California. July 5, 2001. *485 Ivy K. Kessel, Encino, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant Attorney General, Steven ...
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108 Cal. Rptr. 2d 610 (2001) 25 Cal. 4th 1225 25 P.3d 1090 The PEOPLE, Plaintiff and Respondent, v. Eddie VASQUEZ, Defendant and Appellant. No. S085584. Supreme Court of California. July 5, 2001. *611 Susan S. Bauguess, under appointment by the Supreme Court, Running Springs, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol We...
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Dror Sar-Avi appeals from the district court’s denial of his Motion to Remit Bond Forfeiture pursuant to Rule 46(e)(4) of the Federal Rules of Criminal Procedure. We affirm the district court’s summary denial. I It is fortuitous that “Yiddish is quickly supplanting Latin as the spice in American legal argot;” 1 otherwise we might be bereft of a satisfactory description of d...
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Appellant Abraham Gale (“Gale”) worked for ten weeks for Packard-Bell NEC, Inc. (“PBNEC”). After being fired by PBNEC, Gale filed a qui tam action against that company under the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3733, alleging that it had committed fraud by selling computers to the government as new even though they contained used parts. The government declined to intervene in Gale’s FCA...
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Opinion by Judge WILLIAM A. FLETCHER; Dissent by Judge NOONAN. WILLIAM A. FLETCHER, Circuit Judge: The town of Fernley, Nevada, has applied to the Nevada State Engineer to change the manner and place of use of rights to roughly 280 acre-feet of water from the federal Newlands Reclamation Project. The Pyramid Lake Paiute Tribe of Indians and the federal government oppose the proposed transfers, con...
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256 F.3d 922 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.RONALD JORDAN, DEFENDANT-APPELLANT. No. 97-10255 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 3, 2000Filed July 5, 2001 Patience Milrod, Fresno, California, for the defendant-appellant. Dawrence W. Rice, Jr., Office of the U.S. Attorney, Sacramento, Cal...
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Opinion In late 1996 and early 1997 MedPartners, Inc. (MedPart-ners), and a different entity, Southern California Medical Corporation (SCMC), filed lawsuits against appellants Albert E. Barnett, Gloria Mayer (G. Mayer) and Thomas Mayer (T. Mayer) (the underlying action). In the underlying action, MedPartners and SCMC alleged appellants engaged in a variety of misconduct, including making ...
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In 1982, actor Dustin Hoffman starred in the movie “Tootsie,” playing a male actor who dresses as a woman to get a part on a television soap opera. One memorable still photograph from the movie showed Hoffman in character in a red long-sleeved sequined evening dress and high heels, posing in front of an American flag. The still carried the text, “What do you get when you cross a hopelessly stra...
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Mariano Murillo appeals his conviction after a third jury trial for possession with intent to deliver methamphetamine and cocaine. Murillo challenges certain eviden-tiary rulings, the district court’s refusal to compel discovery of unrelated case files in the government’s possession, and the district court’s refusal to grant a two-level reduction for a minor role in the offense. We have jurisdict...
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255 F.3d 1061 (9th Cir. 2001) IN RE: DEBBIE REYNOLDS HOTEL & CASINO, INC. DEBTOR. IN RE: DEBBIE REYNOLDS MANAGEMENT COMPANY, INC. DEBTOR. IN RE: DEBBIE REYNOLDS RESORTS, INC. DEBTOR. DEBBIE REYNOLDS HOTEL & CASINO, INC., A NEVADA CORPORATION; DEBBIE REYNOLDS MANAGEMENT COMPANY, INC., A NEVADA CORPORATION; DEBBIE REYNOLDS RESORTS, INC., A NEVADA CORPORATION, APPELLANTS,v.CALSTAR CORPORA...
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Opinion Mother appeals from the order terminating her parental rights under Welfare and Institutions Code section 366.26.1 Mother also petitions for a writ of habeas corpus seeking reversal of the order on the ground of ineffective assistance of counsel occurring in connection with the termination hearing. In the published portion of this opinion, we conclude mother is entitled to seek habeas corp...
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*539 Opinion Dana K. Ferrell appeals a judgment awarding him damages in his inverse condemnation action against the County of San Diego (County). Ferrell contends the trial court erred by (1) excluding the testimony of his appraisal expert, and (2) not awarding him certain costs and attorney fees under Code of Civil Procedure section 1036. 1 County filed a cross-appeal and contends the tria...
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108 Cal.Rptr.2d 642 (2001) 26 Cal.4th 1 25 P.3d 1117 FOXGATE HOMEOWNERS' ASSOCIATION, INC., Plaintiff and Respondent, v. BRAMALEA CALIFORNIA, INC., et al., Defendants and Appellants; Ivan K. Stevenson, Objector and Appellant. No. S087319. Supreme Court of California. July 9, 2001. *644 Law Offices of Ivan K. Stevenson, Ivan K. Stevenson, Rollin Hills Estate, Jeffrey L. Boyle; Horvitz & Levy, ...
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255 F.3d 1073 (9th Cir. 2001) ENVIRONMENTAL PROTECTION INFORMATION CENTER, A NON-PROFIT CORPORATION, PLAINTIFF-APPELLANT,v.THE SIMPSON TIMBER COMPANY; SIMPSON REDWOOD COMPANY; ARCATA REDWOOD COMPANY; UNITED STATES FISHAND WILDLIFE SERVICE, DEFENDANTS-APPELLEES. No. 99-15896 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 2, 2000--San Francisco, Cal...
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This matter comes before the court on three related appeals. Defendant C. Elvin Feltner, Jr. (“Feltner”) appeals from a jury verdict awarding the plaintiff, Columbia Pictures Television Inc. (“Columbia”), $31.68 million in statutory damages for violations of the Copyright Act of 1976 (“Copyright Act”), 17 U.S.C. § 101, et seq. In a separate appeal, Columbia asserts that the district court erred in...
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255 F.3d 1086 (9th Cir. 2001) ASPEN GREEN, NEALE ALLEN, JON MICHAEL, DORITA BRADY, WALLACE L. CRAIG, JUDY LESTER, RESIDENTS AND QUALIFIED ELECTORS IN TORTOLITA, PLAINTIFFS-APPELLANTS,v.CITY OF TUCSON, AN ARIZONA MUNICIPAL CORPORATION, DEFENDANT-APPELLEE. No. 99-15625 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Rehearing En Banc Granted November 30, 2000Argued and Submitted...
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255 F.3d 1104 (9th Cir. 2001) KEVIN COOPER, PETITIONER-APPELLANT,v.ARTHUR CALDERON, WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE. No. 97-99030 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted January 20, 2000--Pasadena, CaliforniaFiled July 9, 2001 [Copyrighted Material Omitted] Robert B. Amidon, Burbank, California...
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J.J.C., a minor, was arrested in connection with the stabbing death of Anthony Sabían, Jr. At the time of his arrest, J.J.C. was eight months shy of his eighteenth birthday. The government filed a juvenile delinquency complaint against J.J.C., charging him with conspiracy to commit murder and solicitation to commit murder. 1 *1071 Soon thereafter, the government filed a motion to transfer t...
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In this case we must decide whether a consignor of goods named in a bill of lading has standing to sue the carrier for misdelivery of goods and breach of contract where there is evidence that the consignee, and not the consignor, entered into the shipment contract with the carrier. We answer this question affirmatively, and hold that, in this situation, the consignor of goods was a party to the co...
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Plaintiff Christopher Forrester suffered severe injuries when an American Model 840DE locomotive crane operated by his employer, General Metals, dragged a large metal beam over his leg. We must decide whether the Locomotive Inspection Act (the Act), 49 U.S.C. §§ 20701-20703 (West 2000), preempts Forrester’s state law product liability claims against the locomotive crane’s manufacturer based on the...
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255 F.3d 1118 (9th Cir. 2001) NOEL PUENTE GOMEZ; LEE MAZUR HAYS; BOB JONES; ALFREDO ROMAN; PATRICK HALL; MARQ BARTLETT; GREGORY JOSEPH NELSON, PLAINTIFFS-APPELLEES,v.RICHARD A. VERNON, DIRECTOR, IDAHO DEPARTMENT OF CORRECTIONS; DAVE PASKETT, WARDEN, IDAHO STATE CORRECTIONAL INSTITUTION; JAMES C. SPALDING, DIRECTOR, IDOC; JOE KLAUSER, WARDEN, ISCI; DEFENDANTS-APPELLANTS,ALAN LEE BRANDT, DEFENDA...
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255 F.3d 1136 (9th Cir. 2001) RON BIRD, INDIVIDUALLY AND ON BEHALF OF GLACIER CONSTRUCTION, INC.; HERB GILHAM, INDIVIDUALLY AND ON BEHALF OF GLACIER CONSTRUCTION, INC.; AND SCOTT SHERBURNE, INDIVIDUALLY AND ON BEHALF OF GLACIER CONSTRUCTION, INC., PLAINTIFFS-COUNTERDEFENDANTS-APPELLEES,v.GLACIER ELECTRIC COOPERATIVE, INC., DEFENDANT-COUNTERCLAIMANT-APPELLANT. No. 99-35162 UNITED STATES...
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255 F.3d 1196 (9th Cir. 2001) NATHAN KIMMEL, INC.; NATHAN KIMMEL, LLC; KNF CORP., FORMERLY KNOWN AS KENNEDY NYLON FILM CORP., PLAINTIFFS-APPELLANTS,v.DOWELANCO, DEFENDANT-APPELLEE. No. 99-56746 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted June 6, 2001 Pasadena, CaliforniaFiled July 10, 2001 1 NOTE: OPINION HAS BEEN WITHDRAWN. SEE NEW OPINION DATE...
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260 F.3d 1160 (9th Cir. 2001) CITY OF AUBURN; CITY OF BREMERTON; CITY OF DES MOINES; CITY OF FEDERAL WAY; A MUNICIPALITY; CITY OF LAKEWOOD; CITY OF MEDINA; CITY OF OLYMPIA; CITY OF PUYALLUP; CITY OF RENTON; CITY OF SEATAC; CITY OF TACOMA; CITY OF TUKWILA; CITY OF UNIVERSITY PLACE; CITY OF VANCOUVER, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,v.QWEST CORPORATION, DEFENDANT-APPELLANT-CROSS-APPELLEE. ...
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109 Cal.Rptr.2d 233 (2001) 90 Cal.App.4th 637 Keli CWYNAR et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. No. A089841. Court of Appeal, First District, Division Two. July 10, 2001. Review Denied September 26, 2001. *238 John E. Mueller, Nielsen, Merksamer, Parrinello, Mueller & Naylor, LLP, Los Angeles; Barbara E. Herzig, Herzig & Berlese, ...
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109 Cal.Rptr.2d 359 (2001) 90 Cal.App.4th 579 AICCO, INC. et al., Plaintiffs and Appellants, v. INSURANCE COMPANY OF NORTH AMERICA et al., Defendants and Respondents. No. A092096. Court of Appeal, First District, Division Five. July 10, 2001. Rehearing Denied July 31, 2001. Review Denied October 10, 2001. *362 Barger & Wolen, Irvine, Roxani M. Gillespie, Kent R. Keller, Los Angeles, *363 Stev...
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255 F.3d 1153 (9th Cir. 2001) STEVE GARVEY, Petitioner-Appellant,v.THOMAS T. ROBERTS, Arbitrator; MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, Respondents-Appellees. Nos. 00-56080, 98-55263 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed July 11, 2001 1 On Remand from the United States Supreme Court, D.C. No. CV-97-05643-WJR 2 Before:...
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The issue in this case is whether state legislation allowing people to vote by mail over an extended period violates a federal statute requiring that the election shall be held on a particular day. Voting Integrity Project, Inc. and several individuals brought a federal civil rights suit for declaratory and injunctive relief, 2 to establish that an Oregon statute that allows Ore...
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109 Cal. Rptr. 2d 1 (2001) 26 Cal. 4th 63 26 P.3d 332 Stacy CORNETTE et al., Plaintiffs and Appellants, v. DEPARTMENT OF TRANSPORTATION, Defendant and Respondent. No. S089010. Supreme Court of California. July 12, 2001. Rehearing Denied August 22, 2001. *2 Grassini & Wrinkle and Roland Wrinkle, Woodland Hills, for Plaintiffs and Appellants. William M. McMillan, Breland C. Gowan, Sacramento, D...
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109 Cal.Rptr.2d 14 (2001) 26 Cal.4th 42 26 P.3d 343 Norton STYNE, Plaintiff and Appellant, v. Connie STEVENS et al., Defendants and Respondents. No. S086787. Supreme Court of California. July 12, 2001. *18 Bronson, Bronson & McKinnon, Stroock & Stroock & Lavan, Barry B. Langberg, Deborah Drooz and Michael J. Niborski, for Plaintiff and Appellant. Rosoff, Schiffres & Barta, Howard ...
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Opinion In this case we decide that the Career Executive Assignment (CEA) program does not violate the civil service mandate of the California Constitution. However, the implementing regulations that allow selection and transfer of applicants without ranking them violate statutes implementing the constitutional requirement of a “system based on merit ascertained by competitive examination.” As we ...
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Opinion Defendant Gary P. Pietak appeals from a trial court ruling denying his motion under Code of Civil Procedure section 473 1 to “reopen” an interpleader action dismissed by plaintiff State Farm Fire & Casualty Company (State Farm) so that he may file a cross-complaint against State Farm. In a published opinion issued on February 22, 1999, this court reversed, concludi...
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108 Cal.Rptr.2d 833 (2001) 90 Cal.App.4th 617 In re the MARRIAGE OF Carol C. and William H. DUNCAN, Jr. Carol C. Duncan, Appellant, v. William H. Duncan, Jr., Appellant. No. D033482. Court of Appeal, Fourth District, Division One. July 11, 2001. Review Denied October 10, 2001. *835 Law Offices of Marjorie G. Fuller, Marjorie G. Fuller, Fullerton; Seltzer Caplan *836 Wilkins & McMahon, Gerald ...
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The Bank of Southern Oregon (the “Bank”) appeals from a portion of the district court’s summary judgment against it and in favor of Western Surety Company (“Western”) on Western’s claim that the Bank failed to honor its drafts under letters of credit. The Bank claims there was a genuine issue of material fact on its defense that Western fraudulently sought payment on one letter. Exercising plena ...
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265 F.3d 1017 (9th Cir. 2001) DELTA SAVINGS BANK, A CALIFORNIA SAVINGS ASSOCIATION; YOUNG I. KIM, AN INDIVIDUAL AND SHAREHOLDER, PLAINTIFFS-APPELLANTS,v.UNITED STATES OF AMERICA; DAVID HENRY; JENNIFER JONES, DEFENDANTS-APPELLEES. No. 98-56775 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 10, 2000Filed July 12, 2001 [Copyrighted Materia...
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257 F.3d 937 (9th Cir. 2001) VENETIAN CASINO RESORT, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY, PLAINTIFF-APPELLANT,v.LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS; CULINARY WORKERS UNION, LOCAL NO. 226, AN UNINCORPORATED ASSOCIATION; BARTENDERS UNION, LOCAL NO. 165, AN UNINCORPORATED ASSOCIATION;CLARK COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF NEVADA; STEWART L. BELL, IN HIS CAPACITY AS DI...
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Opinion After joint jury trial of brothers Mario Dwayne and Tyrone Dushawn Griffin, Mario was convicted of first degree burglary, felonious assault, and two counts of vandalism, and Tyrone was convicted of first degree burglary and one count of vandalism. 1 Mario appeals from his conviction and sentence on the grounds that; (1) the trial court failed to correctly instruct the jury regarding t...
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*769Opinion Robyn R. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26., subd. (b)(1))1 and an order denying a section 388 petition to return her children. The trial court found that the children were adoptable and that adoption was the least detrimental placement alternative. (§ 366.26, subd. (c)(1).) We affirm. Facts and Procedural History On October 17, 1997...
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Opinion Tyrone J. and Corinna C., the parents of Marinna (the minor), appeal from orders of the juvenile court directing that the Yolo County Department of Social Services (DSS) make efforts to locate an appropriate adoptive family for the minor, denying a motion by Corinna for modification, and terminating their parental rights. (Welf. & Inst. Code, §§ 366.26, 388, 395; further unspecified secti...
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Opinion In this dependency proceeding, Rosie H. (appellant), the mother of the minors, Manolito and Paradise, appeals from an order of the juvenile court denying appellant visitation with the minors. (Welf. & Inst. Code, §§ 388, 395; further unspecified statutory references are to this code.) *756Appellant claims that, in finding by a preponderance of the evidence that visits would be detrimental...
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Table Bluff Reservation (Wiyot Tribe) and nineteen other Indian tribes (“Tribes”) sued Philip Morris and other tobacco companies (“Tobacco Companies”) after the companies signed a settlement agreement with state and territorial governments, settling claims for, among other things, reimbursement of medical costs incurred in treating smoking-related illnesses. The Tribes contended (among other claim...
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Plaintiffs Binti Watts and Christopher Pryor sued the County of Sacramento, and Sheriffs Deputies Jeffrey Morace, Lorie Timberlake, Donald Black, and Sergeant Bryan Munn for damages under 42 U.S.C. § 1983 for the unlawful entry of their home pursuant to an arrest warrant and their wrongful arrest and detention until the officers discovered that Pryor was not the murder suspect named in the warran...
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256 F.3d 864 (9th Cir. 2001) MICHELLE NICHOLS, AN INDIVIDUAL; ANTONIO SANCHEZ, AN INDIVIDUAL; ANNA CHRISTINE LIZARRAGA, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS,v.AZTECA RESTAURANT ENTERPRISES, INC., A CORPORATION, DEFENDANT-APPELLEE No. 99-35579 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 16, 2001Filed July 16, 2001 [Copyrighted Materi...
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255 F.3d 801 (9th Cir. 2001) JOHN DEMONTINEY, D/B/A EARTHWALKER ENGINEERING, PLAINTIFF-APPELLANT,v.UNITED STATES OF AMERICA, ON BEHALF OF ITS AGENCY, THE DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS; CHIPPEWA CREE TRIBE OF ROCKY BOY'S RESERVATION, DEFENDANTS-APPELLEES No. 99-35874 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 8, 2001--Seattle, ...
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108 Cal.Rptr.2d 863 (2001) 90 Cal.App.4th 843 DEAUVILLE RESTAURANT, INC., Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Lawrence N. Taylor et al., Real Parties in Interest. No. B148105. Court of Appeal, Second District, Division Seven. July 16, 2001. Review Denied October 17, 2001.[*] *864 Troy & Gould and Jeffery W. Kramer, for Petitioner. Morrison & Foerster, Raymond L. W...
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108 Cal.Rptr.2d 860 (2001) 90 Cal.App.4th 837 Pamela Warren PORTER, Plaintiff and Appellant, v. UNITED SERVICES AUTOMOBILE ASSOCIATION, Defendant and Respondent. No. B145178. Court of Appeal, Second District, Division Five. July 16, 2001. Law Offices of Janice Weberman and Janice Weberman, for Plaintiff and Appellant. *861 Law Offices of David Mains, Long Beach, Margaret A. Klug; and Law Offices ...
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109 Cal.Rptr.2d 343 (2001) 90 Cal.App.4th 775 Kelly MORSON et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent; Medline Industries, Inc., et al., Real Parties in Interest. No. D037161. Court of Appeal, Fourth District, Division One. June 15, 2001. Review Denied October 10, 2001. *345 Rose, Klein & Marias, Encino, David A. Rosen, Arlyn M. Latin, Peter H. Crossin, Los Ang...
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108 Cal.Rptr.2d 870 (2001) 90 Cal.App.4th 810 CALIFORNIA STATE UNIVERSITY, Fresno Association, Inc., Petitioner, v. The SUPERIOR COURT of Fresno County, Respondent, McClatchy Company, Real Party in Interest. The Board of Trustees of the California State University et al., Petitioners, v. The Superior Court of Fresno County, Respondent, McClatchy Company, Real Party in Interest. Nos. F037383, F037...
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108 Cal.Rptr.2d 888 (2001) 90 Cal.App.4th 864 Steven P. HASKETT, as Trustee, etc., Plaintiff and Appellant, v. The VILLAS AT DESERT FALLS et al., Defendants and Appellants. No. D033915. Court of Appeal, Fourth District, Division One. July 17, 2001. *890 James S. Graham, San Diego, for Plaintiff and Appellant. Middlebrook, Kaiser & Popka, Michael R. Kaiser, Palm Springs, Jeff M. Yoss; Payne &a...
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257 F.3d 1124 (9th Cir. 2001) JOHN ANCHUSTEGUI, PLAINTIFF-APPELLANT,v.DEPARTMENT OF AGRICULTURE, NAMED AS THE SECRETARY OF THE UNITED STATES DEPARTMENT OF AGRICULTURE; U.S. FOREST SERVICE, NAMED AS CHIEF OF THE UNITED STATES FOREST SERVICE; REGIONAL FORESTER, OF THE INTERMOUNTAIN REGION OF THE UNITED STATES FOREST SERVICE; BOISE NATIONAL FOREST, NAMED AS FOREST SUPERVISOR FOR THE BOISE NATIONA...
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ORDER Respondent moves to dismiss this petition for review of the order of removal by the Board of Immigration Appeals (“BIA”) for lack of jurisdiction under 8 U.S.C. § 1252(a)(2)(C). 1 Respondent contends that petitioner Efren Castro-Espi-nosa’s convictions for harboring and aiding and abetting the harboring of an illegal alien under 8 U.S.C. § 1324(a)(l)(A)(iii) are aggravated felonies. We ...
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I. Background Armondo Walter believed that Ronald Merrit, Jr. stole several hundred dollars from him. To get revenge, Walter sent a letter addressed to President Clinton, signed with Merrit’s name, including violent threats against the President and his family. The subsequent investigation led to Walter, who readily admitted that he sent the letter. He explained that he did not wish to harm the...
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108 Cal.Rptr.2d 904 (2002) 90 Cal.App.4th 887 The PEOPLE, Plaintiff and Respondent, v. Ty L. TRUONG, Defendant and Appellant. No. A091063. Court of Appeal, First District, Division Two. July 18, 2001. *905 Ford Greene, under appointment by the Court of Appeal, Hub Law Offices, San Anselmo, CA, for Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Rona...
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109 Cal. Rptr. 2d 308 (2001) 26 Cal. 4th 189 26 P.3d 1044 Rodney Scott PEARL, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and Board of Trustees of the California State University, Respondents. No. S090553. Supreme Court of California. July 19, 2001. *309 Lemaire, Faunce, Pingel & Singer, Edward L. Faunce, Cerritos, Steven R. Pingel, Seal Beach, and Larry J. Roberts, for Petitioner. Jos...
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109 Cal. Rptr. 2d 303 (2001) 26 Cal. 4th 181 26 P.3d 1040 The PEOPLE, Plaintiff and Respondent, v. Willie Ross MITCHELL, Defendant and Appellant. No. S090791. Supreme Court of California. July 19, 2001. Linn Davis, under appointment by the Supreme Court, Norco, for Defendant and Appellant. *304 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wendelin Pol...
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110 Cal.Rptr.2d 270 (2001) 28 P.3d 32 Richard W. KATZBERG, M.D., Defendant and Appellant, v. The REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Respondent. No. S097445. Supreme Court of California. July 18, 2001. Petition for review GRANTED. The issue to be briefed and argued before this court shall be limited to whether the department chair person at a university hospital terminated foll...
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108 Cal.Rptr.2d 914 (2002) 90 Cal.App.4th 944 The PEOPLE, Plaintiff and Respondent, v. Juan Ramon DUBON, Defendant and Appellant. No. B142170. Court of Appeal, Second District, Division Three. July 19, 2001. Review Denied October 24, 2001. *916 Carlos Vellanoweth, John Wolfgang Gehart and Elena Yampolsky, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorne...
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108 Cal.Rptr.2d 924 (2002) 90 Cal.App.4th 937 In re EDUARDO C, a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Eduardo C, Defendant and Appellant. No. B142094. Court of Appeal, Second District, Division Four. July 19, 2001. Fay Arfa, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. D...
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109 Cal.Rptr.2d 429 (2001) 90 Cal.App.4th 968 The PEOPLE, Plaintiff and Respondent, v. Creighton O'Dell SCHOFIELD, Defendant and Appellant. No. B149435. Court of Appeal, Second District, Division Six. July 19, 2001. *430 Robert B. Lilley, Atascadero, for Appellant. Gerald T. Shea, District Attorney, County of San Luis Obispo and Curtis A. Rankin, Deputy District Attorney, for Respondent. YEGAN, A...
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Opinion Tenants leased a single-family residence. The lease had an attorney’s fees and costs provision. The landlord failed to provide a habitable dwelling. A fire resulted, destroying the tenants’ personal property. At the time, the tenants were behind in their rent. This lawsuit ensued, and the tenants recovered damages for the loss of their property, and the landlord recovered the back rent. T...
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109 Cal.Rptr.2d 436 (2001) 90 Cal.App.4th 958 PACLINK COMMUNICATIONS INTERNATIONAL, INC., et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Ivan Yeung et al., Real Parties in Interest. No. B149318. Court of Appeal, Second District, Division Four. July 19, 2001. *437 Gronemeier & Associates, Dale L. Gronemeier, South Pasadena, Kristine L. Olsen; Law Offices of Alber...
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257 F.3d 971 (9th Cir. 2001) SOGHOMON ABOVIAN; LOUSINE ABOVIAN; ISKOUI ABOVIAN, Petitioners,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 98-70934 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Order Filed July 5, 2001Order Filed July 20, 2001 INS Nos. Axp-vnw-rcj, Alh-bgx-gwp, Aqd-uap-pqk Before: J. Clifford Wallace, Harry Pregerson and Sidney R....
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PER CURIAM Opinion; Opinion by Judge FERGUSON: Opinion by Judge KOZINSKI; Concurrence by Judge TASHIMA; Concurrence by Judge RONALD M. GOULD; Concurrence by Judge PAEZ. A majority of the en banc court (Judge Ferguson, joined by Chief Judge Schroeder and Judges Pregerson, Tashima, Paez and Berzon) concludes that the officers did not have probable cause to enter Johnson’s *898property, and were not...
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Jose Abonce-Barrera appeals from his convictions for conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846; distribution of methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S....
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This case has its genesis in a high school student’s poem, which led to his temporary, emergency expulsion from school. It arises against a backdrop of tragic school shootings, occurring both before and after the events at issue here, and requires us to evaluate through a constitutional prism the actions school officials took to address what they perceived was the student’s implied threat of viole...
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I. INTRODUCTION A criminal defense attorney accused assistant district attorneys of framing him for suborning perjury, offering false documents, and soliciting bribery. He sued under 42 U.S.C. § 1983 for due process violations and malicious prosecution. The district court dismissed his second amended complaint on the basis of absolute pros-ecutorial immunity, and this appeal followed. Because c...
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*1000 CERTIFICATION ORDER ORDER Pursuant to Rule 5 of the Nevada Rules of Appellate Procedure, we certify to the Nevada Supreme Court two questions of law that may be determinative of the matter pending before this court and as to which there is no clearly controlling precedent in the decisions of the Nevada Supreme Court. I. BaCkground This case stems from an emplo...
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295 F.3d 955 KA MAKANI `O KOHALA OHANA INC., a Hawai`i nonprofit corporation, Plaintiff-Appellant,v.WATER SUPPLY, Department of, County of Hawai`i; Milton Pavao, in his capacity as Department Manager of the Department of Water Supply, County of Hawai`i; United States Geological Survey; William Meyer, in his capacity as District Chief of the United States Geological Survey; Department of Housin...
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109 Cal.Rptr.2d 327 (2001) 26 Cal.4th 200 26 P.3d 1061 The PEOPLE, Plaintiff and Respondent, v. Jimmie Dale OTTO, Defendant and Appellant. No. S088807. Supreme Court of California. July 23, 2001. Rehearing Denied September 12, 2001. *329 Ozro William Childs, under appointment by the Supreme Court, Santa Rosa, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief As...
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109 Cal. Rptr. 2d 315 (2001) 26 Cal. 4th 221 26 P.3d 1051 The PEOPLE, Plaintiff and Respondent, v. Ryan Patrick TOLEDO, Defendant and Appellant. No. S089957. Supreme Court of California. July 23, 2001. *317 David P. Lampkin, Los Angeles, under appointment by the Supreme Court, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol W...
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109 Cal.Rptr.2d 482 (2001) 90 Cal.App.4th 977 Robert HANSEN, Plaintiff and Respondent, v. AEROSPACE DEFENSE RELATED INDUSTRY DISTRICT LODGE 725 of the International Association of Machinists and Aerospace Workers, Defendant and Appellant. Maria Des Ermia, Plaintiff and Respondent, v. Aerospace Defense Related Industry District Lodge 725 of the International Association of Machinists and Aerospace...
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109 Cal.Rptr.2d 454 (2001) 90 Cal.App.4th 987 Jill KLAJIC, et al., Plaintiffs and Appellants, v. CASTAIC LAKE WATER AGENCY, Defendant and Respondent. No. B137258. Court of Appeal, Second District, Division Three. July 20, 2001. Review Denied October 24, 2001. *456 Jennifer Kilpatrick, for Plaintiffs and Appellants. Robert H. Clark, General Counsel, and Kane, Ballmer & Berkman, R. Bruce Tepper...
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109 Cal.Rptr.2d 489 (2001) 90 Cal.App.4th 1081 Douglas F. HENSLEY, Plaintiff and Appellant, v. Patricia E. McSWEENEY, Defendant and Appellant. No. F029415. Court of Appeal, Fifth District. July 23, 2001. Review Denied October 31, 2001.[**] Michael Linn, for Plaintiff and Appellant. Askew & Archbold, James A. Askew and Richard M. Archbold, Stockton, for Defendant and Appellant. Certified for P...
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Lamont Aukland (“Aukland”) appeals the district court’s summary judgment affirming the Commissioner of Social Security’s (the “Commissioner”) termination of his disability insurance benefits. Diagnosed with leukemia in 1991, the Commissioner awarded Aukland disability insurance benefits. Aukland was found to be “not disabled” as of April 1, 1995, after a determination that his disability had impr...
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257 F.3d 1058 (9th Cir. 2001) DAVID R. BROWER, AN INDIVIDUAL; SAMUEL F. LABUDDE, AN INDIVIDUAL; EARTH ISLAND INSTITUTE, A CALIFORNIA NONPROFIT CORPORATION; HUMANE SOCIETY OF THE UNITED STATES, A DELAWARE NONPROFIT CORPORATION; AMERICAN SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, A NEW YORK NONPROFIT CORPORATION; DEFENDERS OF WILDLIFE, A DISTRICT OF COLUMBIA NONPROFIT CORPORATION; INTERNA...
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Defendant Michael Carrasco appeals his conviction for being a felon in possession of a firearm or ammunition in violation of 18 U.S.C. § 922(g)(1). Carrasco contends that: (1) the trial court erred in admitting evidence that Carrasco was engaged in drug trafficking, (2) insufficient evidence supports the finding that Carrasco constructively possessed the firearm or ammunition, (3) the trial court...
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Chebchoub petitions for review of a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. Chebchoub asserts persecution on the basis of political opinion and imputed political opinion. The Board exercised jurisdiction pursuant to 8 C.F.R. § 3.1(b) and concluded that Chebchoub failed to meet his burden of establishing eligibility for asylum or withholding of d...
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Trapp appeals from the sentence imposed following his guilty plea pursuant to a plea agreement. The issues before us are whether the government breached the plea agreement and if so, whether the sentence should be vacated. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely filed appeal pursuant to 28 U.S.C. § 1291, and we affirm. I On July ...
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We reheard this case en banc to resolve a discrepancy between our existing case law and the current version of Federal Rule of Criminal Procedure 32(e). In 1983, the rule governing a defendant’s withdrawal of a guilty plea was amended to read: If a motion to withdraw a plea of guilty or nolo contendere is made before sentence is imposed, the court may permit the plea to be withdrawn if the defe...
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Opinion May parties engaged in private dispute resolution stipulate to the appointment of a judicial referee or judge pro tempore to secure a *1108settlement enforceable by the court under Code of Civil Procedure section 664.6?1 Not unless they seek the reference in pending litigation. This appeal was taken from an order of the Superior Court of San Francisco County purporting to enforce an insura...
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109 Cal.Rptr.2d 515 (2001) 90 Cal.App.4th 1151 LANCE CAMPER MANUFACTURING CORPORATION, Plaintiff and Appellant, v. REPUBLIC INDEMNITY COMPANY OF AMERICA, Defendant and Appellant. No. B131976. Court of Appeal, Second District, Division Two. July 23, 2001. Rehearing Denied August 22, 2001. Review Denied November 20, 2001. *517 Mahoney, Coppenrath & Jaffe, Walter G. Coppenrath, Jr., Howard M. Ja...
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Opinion The dispute underlying this appeal arose out of a series of real estate transactions in which developer Craig Caldwell, one of the defendants below, persuaded respondent Lawrence. Saks, M.D., to invest. Dr. Saks’s financial involvement with Caldwell began in May 1990 and ended a few months later in August 1990. During that time, Dr. Saks became embroiled in approximately half a dozen land...
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109 Cal.Rptr.2d 583 (2001) 90 Cal.App.4th 1094 Marcelino OREGEL, Plaintiff and Respondent, v. AMERICAN ISUZU MOTORS, INC., Defendant and Appellant. No. D036615. Court of Appeal, Fourth District, Division One. June 25, 2001. *584 Bacalski, Byrne & Koska and Christopher J. Workman, San Diego, for Defendant and Appellant. Law Offices of Michael E. Lindsey and Michael E. Lindsey, Los Angeles, for...
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Opinion In this action arising out of a judgment lien obtained by plaintiff and respondent F. M. Bratcher, doing business as Bratcher Construction Co. (Bratcher) against defendant and appellant Robert Buckner (Buckner), Bratcher obtained a writ of execution and levy against certain real property located in Dulzura, California, owned by Buckner (the Dulzura property). Bratcher thereafter s...
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257 F.3d 1071 (9th Cir. 2001) ENVIRONMENTAL PROTECTION INFORMATION CENTER, INC. AND SIERRA CLUB, INC., PLAINTIFFS-APPELLEES,v.PACIFIC LUMBER COMPANY, SCOTIA PACIFIC HOLDING COMPANY AND SALMON CREEK CORPORATION, DEFENDANTS-APPELLANTS. Nos. 99-16042, 99-16915 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 13, 2000--San Francisco, CaliforniaFiled Ju...
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257 F.3d 1077 (9th Cir. 2001) In re: ERNIE ROE,Warden ERNIE ROE, Warden, Petitioner,v.UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA,Respondent,GLEN NICKERSON, JR., Real Party in Interest. No. 01-70967 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted June 15, 2001* San Francisco, CaliforniaOrder filed June 15, 2001Order withdrawn July 24, 2001Fil...
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Opinion The petitioner, 20th Century Insurance Company, seeks a writ of mandate directing the trial court to vacate and set aside an order granting the motion of the real party in interest, Linda P. Ahles, to reconsider an earlier order sustaining a demurrer to Ahles’s complaint without leave to amend. 1 Ahles had filed a complaint against 20th Century for breach of a contrac...
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109 Cal.Rptr.2d 591 (2001) 90 Cal.App.4th 1221 Craig A. MOBLEY, Plaintiff and Appellant, v. LOS ANGELES UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents. No. B144531. Court of Appeal, Second District, Division Four. July 24, 2001. Rehearing Denied August 3, 2001. Review Denied October 17, 2001. *593 Craig A. Mobley, in pro. per., for Plaintiff and Appellant. Bergman, Wedner & Dacey,...
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*1321Opinion I. Introduction Petitioner Arlene Robertson (Robertson) seeks a writ of mandate to overturn an order of the trial court overruling her demurrer to real party’s second amended complaint. That complaint implicated title to real property, including Robertson’s home, in Marin County, and her demurrer was based on statute of limitations grounds. In overruling it, the trial court held that ...
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109 Cal.Rptr.2d 674 (2001) 90 Cal.App.4th 1403 ESTATE OF Earl GUIDOTTI, Deceased. Darlene Guidotti, Petitioner and Appellant, v. Bill Lockyer, as Attorney General, etc., Claimant and Respondent. No. B145085. Court of Appeal, Second District, Division Six. July 25, 2001. *675 J.K. George and Anne C. Cyr, Los Osos, for Petitioner and Appellant. No appearance for Claimant and Respondent. GILBERT, P....
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109 Cal.Rptr.2d 638 (2001) 90 Cal.App.4th 1294 Ronald PANICO et al., Plaintiffs and Appellants, v. TRUCK INSURANCE EXCHANGE, Defendant and Respondent. No. G024336. Court of Appeal, Fourth District, Division Three. July 25, 2001. *639 John K. Saur, Laguna Hills, for Plaintiffs and Appellants. Hollins, Schechter, Feinstein & Condas and Jack H. Snyder, for Defendant and Respondent. OPINION SILL...
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Opinion In California, the penalty for first degree murder is either death or life imprisonment without possibility of parole if the prosecution proves one or more of the special circumstances specified in Penal Code section 190.2.1 (See People v. Bacigalupo (1993) 6 Cal.4th 457, 467-468 [24 Cal.Rptr.2d 808, 862 P.2d 808].) One of these special circumstances, commonly known as the prior-murder sp...
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Walter Amos (Trustee), trustee of the estate of his deceased son, Burton Amos (Amos), appeals from a decision of the district court dismissing his action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Trustee brought this 42 U.S.C. § 1983 action against the City of Page, Arizona, the City of Page Police Department, and several Page police officers (collectively, City)...
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Mark V. Scheehle, an attorney in Mari-copa County, Arizona, challenges the system of appointing arbitrators in Maricopa County Superior Court. Scheehle alleges that requiring certain attorneys to serve as arbitrators in civil cases constitutes a taking of his property without just compensation and violates his rights under the Equal Protection Clause of the Fourteenth Amendment. We reject these ar...
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Opinion by Judge SILVERMAN; Dissent by Judge PREGERSON. We previously have held that the INS can prove alienage with a properly authenticated INS form 1-213. Espinoza v. INS, 45 F.3d 308, 311 (9th Cir.1995). The issue in this case is whether an authenticated INS form WR-424 also is admissible to prove alienage. Although the WR-424 is smaller than the 1-213, it contains the same information that w...
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109 Cal.Rptr.2d 725 (2001) 90 Cal.App.4th 1409 The PEOPLE, Plaintiff and Respondent, v. Mark GORDON, Defendant and Appellant. No. D035265. Court of Appeal, Fourth District, Division One. July 27, 2001. Review Denied October 31, 2001.[*] *726 Gisela Caldwell, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief A...
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OPINION *574 One month before filing their chapter 7 1 petition, the appellees entered into an oral agreement for legal services with the appellant, a paralegal awaiting bar results. Subsequent to the petition, the appellant prepared several documents on their behalf for which he billed them. The appel-lees received their discharge, having not paid their debt to hi...
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257 F.3d 1116 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.PATRICIA KING HILL, DEFENDANT-APPELLANT. No. 00-30023 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 7, 2001--Portland, OregonFiled July 27, 2001 1 NOTE: THIS OPINION HAS BEEN WITHDRAWN. SEE NEW OPINION AT 268 F.3d 1140. ...
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257 F.3d 1095 (9th Cir. 2001) KIM HO MA, PETITIONER-APPELLEE,v.JOHN D. ASHCROFT, ATTORNEY GENERAL; AND ROBERT S. COLEMAN, JR., DISTRICT DIRECTOR OF THE IMMIGRATION AND NATURALIZATION SERVICE, SEATTLE, WASHINGTON, RESPONDENTS-APPELLANTS. No. 99-35976 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT July 27, 2001 [Copyrighted Material Omitted] Quynh Vu, United St...
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109 Cal. Rptr. 2d 575 (2001) 26 Cal. 4th 249 27 P.3d 289 Alex MONTENEGRO, Plaintiff and Respondent, v. Deborah DIAZ, Defendant and Appellant. No. S090699. Supreme Court of California. July 30, 2001. *576 Covington & Crowe, Katrina West and Donald C. Haslam, Ontario, for Defendant and Appellant. Tuckerman & Thompson and Byron C. Thompson, Claremont, for Plaintiff and Respondent. Starre &am...
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OPINION The appellant filed an administrative claim against a chapter 111 debtor in possession (“DIP”) from whom it had subleased office space. The basis for the claim was an alleged postpetition breach of the sublease by the DIP-sublessor for which liability was premised on § 365(d)(3) and § 503(b). After confirmation, the plan trustee objected to the claim and moved for summary judgment. The ...
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*567 OPINION Darryl S. Chapman (“Debtor”) owned a home in Silverdale, Washington (the “Property”) that was the subject of a civil forfeiture action (the “Action”) brought by the United States in the United States District Court, Western District of Washington, at Tacoma (the “District Court”). The Property was arrested and seized because the government alleged that it was used fo...
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OPINION Debtor filed an adversary proceeding seeking to set aside the foreclosure sale of his residence and damages arising out of the creditor’s actions connected with the foreclosure. The primary issue is whether a lender must give new notice of a foreclosure sale after a bankruptcy case is dismissed, where a properly noticed sale that was pending at the time the bankruptcy petition was...
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Opinion by Judge SNEED; Dissent by Judge GRABER Appellant AmHS Insurance Company, Risk Retention Group (“RRG”) and Appel-lee Mutual Insurance Company of Arizona (“MICA”) provided professional liability insurance to Dr. Wesley Romberger (“Dr. Romberger”). ' Following a jury trial, Dr. Romberger was found negligent in his care and treatment of Christina Beery. RRG defended Dr. Romberger and satisfi...
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110 Cal.Rptr.2d 72 (2001) 90 Cal.App.4th 1427 Gagik BALTAYAN, Plaintiff and Appellant, v. ESTATE OF Maro GETEMYAN, et al., Defendants and Respondents. No. B136807. Court of Appeal, Second District, Division Seven. July 30, 2001. *74 Law Office of Philip E. Carey and Philip E. Carey, Sacramento, for Plaintiff and Appellant. Law Offices of Ira Cohen and Ira Cohen, Agoura Hills, for Defendants and R...
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Opinion Introduction When an employer unlawfully fires or discriminates against an employee, recent federal and California cases hold that the employer may not necessarily escape liability through so-called after-acquired evidence of other wrongdoing by the employee showing he would have been fired for other reasons. At issue here is whether that rule bars expert medical testimony of...
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*60Opinion Petitioner seeks a writ of prohibition directing the trial court to dismiss count 2 of a pending information charging appellant with conspiracy to commit murder. This petition raises the question whether a defendant, whose conviction for conspiracy to commit second degree murder was reversed on appeal for trial error, may now be retried for conspiracy to commit first degree murder with...
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Opinion The defendant accumulated 92 cats and kept them in a 7%-foot by 11-foot trailer, providing less than one square foot for each cat. Convicted by jury of felony animal cruelty and placed on probation, she appeals. She asserts the trial was tainted by instructional error, due process violations, and evidence that should have been suppressed. We affirm. Procedure The defenda...
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Opinion In this case, we review two orders entered in a marital dissolution action. One order modifies spousal support and the other awards sanctions. In the first order, the trial court retroactively reduced the husband’s spousal support obligation and allowed him a partial recovery of his support overpayments. Both parties challenge that order. Arguing against the husband’s recovery of any supp...
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258 F.3d 1127 (9th Cir. 2001) EMMA MARY ELLEN HOLLEY; DAVID HOLLEY; MICHAEL HOLLEY, A MINOR; BROOKS BAUER, INDIVIDUALLY AND ON BEHALF OF THE GENERAL PUBLIC, PLAINTIFFS-APPELLANTS,v.GROVE S. CRANK, SR., INDIVIDUALLY, DBA TRIAD REALTORS; TRIAD INC., INDIVIDUALLY, DBA TRIAD REALTORS DEFENDANTS, AND DAVID MEYER, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT AND DESIGNATED OFFICER/BROKER OF TRIAD, ...
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Vicente Roberto Jimenez appeals his sentence of 70 months imprisonment entered pursuant to a guilty plea to a single count of violating 8 U.S.C. § 1326 (Illegal Reentry). Jimenez contends that the district court plainly erred in concluding that he had committed a prior aggravated felony. Without the finding of prior aggravated felony, Jimenez would have faced a maximum sentence of 27 months, far ...
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*1117ORDER The INS’ motion to correct the order filed on April 17, 2001 is GRANTED. The order is hereby amended as follows: At slip opinion page 4692 the sentence: “October 26,1999, this court remanded the case to the Board” is replaced with: “October 26, 1999, this court denied Aguirre’s petition for review.”...
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This case presents a constitutional challenge to the City of San Diego’s adult entertainment zoning ordinance. The appellant, George Isbell, Jr., contends that the City’s ordinance violates the First Amendment and the Equal Protection Clause by preventing him from operating an adult entertainment business. 1 The district court granted summary judgment for the City on all claims. ...
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258 F.3d 1117 (9th Cir. 2001) REGINA SANFORD; KEAIRA SMITH, THE MINOR DAUGHTER OF REGINA SANFORD, BY AND THROUGH HER GUARDIAN AD LITEM, REGINA SANFORD, PLAINTIFFS-APPELLANTS,v.D. MOTTS, COMPTON POLICE DEPARTMENT OFFICER, IN HIS PERSONAL AND OFFICIAL CAPACITY; CITY OF COMPTON, A GOVERNMENTAL ENTITY, DEFENDANTS-APPELLEES. No. 00-56926 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ...
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Opinion In this case of first impression, we address administrative regulations implemented in 1995 to govern reimbursement of private hospitals that provide acute psychiatric care to Medi-Cal beneficiaries. Plaintiffs Glendale Memorial Hospital & Health Center, Long Beach Community Hospital, Northridge Hospital Medical Center, and Presbyterian Intercommunity Hospital (Hospitals) sought a...
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Opinion I. Introduction Defendant, Greenwood Auto Center, appeals from portions of a judgment awarding damages and attorney fees to plaintiff, Carmen Moreno, in an action brought for fraud, conversion, and violation of the Vehicle Leasing Act (the act). (Civ. Code, § 2985.7 et seq.) 1 In the published portion of the opinion, we discuss whether prejudgment interest may be recovered in a conv...
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*147Opinion In this case, we must decide whether the People are required to present evidence supporting “Three Strikes” prior conviction allegations at preliminary hearings. Petitioner Jermaine Marquice Thompson was charged with possession of cocaine. The complaint also alleged he had suffered two prior convictions within the meaning of the Three Strikes law. While acknowledging that California c...
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Opinion The respondent superior court held petitioner, Steven G. Hanson, an attorney, in contempt for comments he made while representing a client in a criminal proceeding. Petitioner primarily argues the respondent’s court order should be annulled because it fails to set out facts in its *78 support. Because we conclude the respondent’s court order of contempt constitutes an...
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Opinion In these consolidated class actions against Apple Computer, Inc. (Apple), the court entered judgment certifying a nationwide class and approving a class settlement. Francis X. Doherty and James S. Rudolph, who objected to the class settlement in the trial court, appeal. They argue that the settlement was not fair and reasonable, that the trial court applied improper criteria in ce...
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Opinion Euel Branch (appellant) was convicted by a jury of two sexual offenses: (1) committing a lewd and lascivious act upon a child under the age of 14; and (2) using a foreign object to penetrate the genital opening of a child under the age of 14 who was more than 10 years younger than the perpetrator. For both offenses, appellant’s victim was Sarah G. An allegation that appellant had had su...
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Opinion Healthand Safety Code section 11379, subdivision (a),1 provides: “[E]very person who transports . . . any controlled substance . . . shall be punished by imprisonment in the state prison . ...” A jury convicted defendant Matthew Paul LaCross of two counts of violating this statute. Defendant contends he did not “transport” methamphetamine because he used his bicycle to carry it. Section 1...
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Opinion A jury convicted defendant Raymond Anthony Lewis of the first degree murder (Pen. Code,1 §§ 187, 189) and robbery (§211) of Sandra Simms, and found true the allegation that he personally used a deadly weapon, i.e., a wooden object, to commit the crimes. (§ 12022, subd. (b).) The jury also found true the special circumstance allegation that defendant committed the murder in the course of a...
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Opinion In this case we must determine the validity of a criminal defendant’s waiver of a jury trial, when the trial court, in advising the defendant before accepting the waiver, informed him that he would receive “some benefit” if he waived his right to a jury trial, although the court could not specify what the benefit would be. The Court of Appeal, in a divided decision, determined that the ju...
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258 F.3d 930 (9th Cir. 2001) KARLUK M. MAYWEATHERS; DIETRICH J. PENNINGTON; JESUS JIHAD; TERRANCE MATHEWS; ASWAD JACKSON; ANSAR KEES, PLAINTIFFS-APPELLEES,v.ANTHONY C. NEWLAND, INDIVIDUALLY AND IN OFFICIAL CAPACITY; BARRY SMITH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY; CAL A. TERHUNE; N. BENNETT; M.E. VALDEZ, DEFENDANTS-APPELLANTS. No. 00-16708,, 01-15170 UNITED STATES COURT OF APPEA...
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258 F.3d 958 (9th Cir. 2001) THE BOEING COMPANY, AND CONSOLIDATED SUBSIDIARIES; BOEING SALES CORPORATION, PLAINTIFFS-APPELLEES,v.UNITED STATES OF AMERICA, DEFENDANT-APPELLANT.THE BOEING COMPANY, AND CONSOLIDATED SUBSIDIARIES, PLAINTIFF,ANDBOEING SALES CORPORATION, PLAINTIFF-APPELLANT,v.UNITED STATES OF AMERICA, DEFENDANT-APPELLEE. No. 99-35818,, No. 99-35857 UNITED STATES COURT OF APPE...
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This case involves whether a confession was tainted by an earlier interrogation that violated the suspect’s constitutional rights. Facts We take the facts from the state appellate court opinion. 1 *953 Garvin worked as a waitress in a restaurant, under the name “Jessica.” She had a sexual relationship with the elderly owner of the restaurant, and about a month before the murder, began a...
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Defendant Charles Robinson Berry appeals his thirty-month sentence for possession of stolen mail in violation of 18 U.S.C. §§ 1708 and 2. Berry challenges the district court’s finding that he was an organizer or leader for purposes of United States Sentencing Guidelines § 3Bl.l(a) (“U.S.S.G. § 3Bl.l(a)”). We have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM the sentence imposed by the di...
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258 F.3d 939 (9th Cir. 2001) SECURITIES AND EXCHANGE COMMISSION, PLAINTIFF-APPELLEE,v.ELIZABETH L. COLDICUTT, DEFENDANT-APPELLANT, AND EDPOF CALIFORNIA INC.; WILLIAM L. WOSLOW; ANTHONY AJ WILLIAMS; FIONA C. WILLIAMS; BURNETT GREY & CO., INC.; FCN FINANCIAL SERVICES, INC.; THOMAS D. COLDICUTT; ELY J. MANDELL, DEFENDANTS. No. 99-56169 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRC...
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258 F.3d 958 (9th Cir. 2001) SHIRLEY BREEDEN, PLAINTIFF-APPELLANT,v.CLARK COUNTY SCHOOL DISTRICT, DEFENDANT-APPELLEE. No. 99-15522 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT August 2, 2001 D.C. No. CV-97-365-DWH(RJJ) Before: William C. Canby, Jr., Stephen Reinhardt, and Ferdinand F. Fernandez, Circuit Judges. 1 On Remand from the Uni...
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258 F.3d 978 (9th Cir. 2001) HARRY TOSCANO, AN INDIVIDUAL, PLAINTIFF-APPELLANT,v.PROFESSIONAL GOLFERS' ASSOCIATION, A MARYLAND NONPROFIT CORPORATION, DBA SENIOR PGA TOUR; JIM COLBERT, AN INDIVIDUAL; BRUCE DEVLIN, AN INDIVIDUAL; TERRY DILL, AN INDIVIDUAL; DALE DOUGLASS, AN INDIVIDUAL; RAYMOND FLOYD, AN INDIVIDUAL; GIBBY GILBERT, AN INDIVIDUAL; BOB GOALBY, AN INDIVIDUAL; MIKE HILL, AN INDIVIDUAL...
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The government appeals from Basalo’s sentence, requesting that it be reversed due to a downward departure of eight levels from the applicable Sentencing Guidelines range. The district court determined that such departure was warranted because “Basalo was prejudiced by two unusual postoffense circumstances-failure of the government to disclose potential impeachment material and gross misconduct by...
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258 F.3d 986 (9th Cir. 2001) SANDRA HENSLEY; JOHN WIEST, JR.; DONNA HOHNSTEIN; LINDA ONHEIBER, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,v.NORTHWEST PERMANENTE P.C. RETIREMENT PLAN & TRUST, A DEFINED CONTRIBUTION PENSION PLAN; NORTHWEST PERMANENTE P.C., AN OREGON CORPORATION; RETIREMENT PLANS COMMITTEE OF THE NORTHWEST PERMANENTE P.C. RETIREMENT PLAN &...
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We must decide whether an objection to discretionary jurisdiction is waived on appeal by failure to raise it first in the bankruptcy court. I Zdenek Kieslich filed a petition for bankruptcy relief under Chapter 7 on August 6, 1986. 1 On July 28, 1988, the IRS filed a proof of claim for $460,000 in federal income taxes owed from tax years 1984 and 1985. On November 20, 1990,...
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258 F.3d 905 (9th Cir. 2001) WILLIAM CHARLES PAYTON, PETITIONER-APPELLEE,v.JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLANT. WILLIAM CHARLES PAYTON, PETITIONER-APPELLANT,v.JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE. No. 00-99000,, No. 00-99003 UNITED STATES COURT OF APPEALS FOR THE NINTH CI...
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Opinion Appellant Robert Lee Kennedy was convicted of a misdemeanor violation of Business and Professions Code section 4060 (hereafter section 4060), after he was found in possession of Valium without a prescription. Appellant contends the misdemeanor conviction must be reversed, because possession of Valium without a prescription may not be punished under section 4060. We reject this arg...
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Opinion Welfare and Institutions Code section 14124.70 et seq., allows the state to place a lien on a settlement or judgment obtained by a *327 Medi-Cal beneficiary against a third party when Medi-Cal payments were used to treat an injury for which the third party is liable. We conclude that an award under the National Vaccine Injury Compensation Program (NVICP) (42 U.S.C. § ...
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Opinion Real Party in Interest Eller Media Company (Eller) requested certain documents from the Los Angeles County Metropolitan Transportation Authority (the MTA) pursuant to the California Public Records Act (Gov. Code, § 6250 et seq.). 1 When the MTA refused to turn the documents over, Eller filed a petition for a writ of mandate in the Los Angeles County Superior Court (case...
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Opinion John Ronald Brown was convicted by a jury of one count of second degree murder and one count of the unlawful practice of medicine. (Bus. & Prof. Code, § 2053.) He pleaded guilty to an additional seven counts of the unlawful practice of medicine. As to the unlawful practice of medicine count, the jury found true that appellant inflicted great bodily injury on a person 70 years of a...
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258 F.3d 1004 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.DANNY LEE KYLLO, DEFENDANT-APPELLANT. No. 96-30333 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT August 3, 2001 On Remand from the United States Supreme Court D.C. No. CR-92-00051-1-HJF Before: Melvin Brunetti, John T. Noonan, and Michael Daly Hawkins, Circuit Judges. ORDER...
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258 F.3d 1004 (9th Cir. 2001) UNITED STATES OF AMERICA, EX REL. LEOCADIO BARAJAS, PLAINTIFF-APPELLANT,v.UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.NORTHROP CORPORATION, DEFENDANT. No. 99-55599 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 12, 2000--Pasadena, CaliforniaFiled August 3, 2001 Counsel Donald R. Warren, San Diego, Cali...
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In this appeal, we must explain how the criminal and civil provisions of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961-1968 (“RICO”) interact, and decide under what circumstances a civil RICO plaintiff may collaterally estop a defendant from contesting the facts proven against him in a previous criminal trial. We conclude that under the specific facts of this case, an...
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258 F.3d 1024 (9th Cir. 2001) POOL WATER PRODUCTS, A CALIFORNIA CORPORATION; AQUA TRI, A CALIFORNIA CORPORATION, PLAINTIFFS-APPELLANTS,v.OLIN CORPORATION, A VIRGINIA CORPORATION; SUPERIOR POOL PRODUCTS, A DELAWARE CORPORATION, DEFENDANTS-APPELLEES. No. 99-56933 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 11, 2001--Pasadena, CaliforniaAugust 3, 2001...
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Opinion On July 1, 1993, Gian Luigi Ferri killed eight people and wounded six—and then killed himself—during a shooting rampage at 101 California Street, a high-rise office building in San Francisco. Survivors and representatives of some of Ferri’s victims (plaintiffs) sued defendant Nave-gar, Inc. (Navegar), which made two of the three weapons Ferri used. We granted review to determine whether p...
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Opinion A jury convicted defendant Sergio Ochoa of two counts of first degree murder (Pen. Code, § 187; all further statutory references are to *416this code unless otherwise indicated) and one count of attempted second degree robbery (§§ 664, 211). The jury also found true the allegations that a principal was armed with respect to all three offenses (§ 12022, subd. (a)(1)) and that defendant pers...
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Defendant James Kim Laskie was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He appeals, arguing that his previous state conviction had been “set aside,” as that term is used in 18 U.S.C. § 921(a)(20), by an “honorable discharge” that he received from a Nevada court in 1985. We agree and vacate Defendant’s conviction. FACTUAL AND PROCEDURAL HISTOR...
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Amir Soltani, Amir Dowlatshahi, Ruben Raul Vega, and Abdul K. Kabir (“Appellants”) appeal the district court’s grant of summary judgment in favor of Defendant Western & Southern Life Insurance Company (‘Western-Southern”) The appeal presents two related questions of California law: Whether contractual provisions that (1) shorten statutes of limitations to six months (applied to a sui...
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260 F.3d 984 (9th Cir. 2001) ROBERT K. DILS, PETITIONER-APPELLANTv.LARRY SMALL, WARDEN; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES No. 99-55412 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued November 13, 2000Submission Deferred December 18, 2000Submitted July 30, 2001Filed August 6, 2001 Counsel: Lauren Eskenazi, Deputy Federal Public...
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259 F.3d 1036 (9th Cir. 2001) CALIFORNIA IRONWORKERS FIELD PENSION TRUST, A JOINTLY TRUSTEED MANAGEMENT LABOR TRUST FUND; CALIFORNIA AND VICINITY FIELD IRONWORKERS ANNUITY TRUST, A JOINTLY TRUSTEED MANAGEMENT LABOR TRUST FUND; CALIFORNIA IRONWORKERS FIELD WELFARE PLAN; RICHARD ZAMPA, MICHAEL NEWINGTON; THOMAS J. BERNSEN; JIM BUTNER; JAMES MURPHY; JAMES PRUETT; JOE ROTH; JOE STANDLEY; ELWOOD TW...
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259 F.3d 1029 (9th Cir. 2001) JOHN LONBERG, AN INDIVIDUAL; RUTHEE GOLDKORN, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS AND UNITED STATES OF AMERICA, INTERVENORv.SANBORN THEATERS INC, A CALIFORNIA CORPORATION D/B/A MARKET PLACE CINEMA; SALTS, TROUTMAN & KANESHIRO INC., A CALIFORNIA CORPORATION; WEST COAST REALTY INVESTORS INC., A DELAWARE CORPORATION, DEFENDANTS-APPELLEES No. 99-56221 UNI...
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259 F.3d 1063 (9th Cir. 2001) MOTION PICTURE INDUSTRY PENSION & HEALTH PLANS, PLAINTIFF-APPELLEE,v.N.T. AUDIO VISUAL SUPPLY, INC., DEFENDANT-APPELLANT. No. 98-55611 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 1, 1999Filed August 7, 2001 Counsel Lisa F. Rosenthal, Woodland Hills, California; Michael J. Rand (argued), Law Offices ...
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259 F.3d 1077 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.NOLAN L. POOCHA, DEFENDANT-APPELLANT. No. 00-10283 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 9, 2001Filed August 7, 2001 Counsel Quin Denvir, Federal Defender, and Oliver E. Vallejo, Assistant Federal Defender, Fresno, California, for the petitioner-appellan...
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Oakridge School District No. 76 and individual school authorities in their official capacities (collectively the District) appeal the judgment of the district court in favor of Mae Culbertson, certain parents, and the Child Evangelism Fellowship of Oregon (collectively CEF). The district court *1063 entered a permanent injunction requiring the District to provide the plaintiffs the same access ...
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259 F.3d 1086 (9th Cir. 2001) YANG MING MARINE TRANSPORT CORPORATION, PLAINTIFF-APPELLEE,v.OKAMOTO FREIGHTERS LTD., DEFENDANT-CROSS-DEFENDANT,ANDLAUFER FREIGHT LINES LTD., DEFENDANT-X-CLAIM-3RD-PARTY-PLAINTIFF-APPELLANT,v.G.E. INTERNATIONAL INC. (USA); BRITISH AMERICAN TOBACCO; THIRD-PARTY-DEFENDANTS,OCEANBRIDGE SHIPPING INTERNATIONAL INC., DEFENDANT-CROSS-DEFENDANT-3RD-PARTY-PLAINTIFF,ANDAMER...
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This case requires us to determine the standard for discovery of loss for purposes of notice under a fidelity policy. Gulf USA Corporation (“Gulf’) sued Federal Insurance Company (“Federal”), seeking a declaratory judgment that Federal breached its obligations under the employee theft coverage clause of Crime Policy No. 80948166-D (“Crime Policy”). Gulf contended that Federal improperly denied ...
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259 F.3d 1097 (9th Cir. 2001) MARK J. BENNETT; CHARLES S. FRUMIN; BOBBIE CARINIO; MARK R. SPENGLER; JERRY BECK; LET THE PEOPLE DECIDE; CITIZENS FOR A CONSTITUTIONAL CONVENTION, ON BEHALF OF THEMSELVES AND OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,v.DWAYNE D. YOSHINA, CHIEF OF ELECTIONS OFFICER OF THE STATE OF HAWAII; MAZIE K. HIRONO, LIEUTENANT GOVERNOR OF THE STATE OF HAWAII, IN THEIR ...
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Opinion Appellant Patricia O. is the natural mother of Patricia T., Arturo T., and Damian S.1 Appellant contends that she did not understand that her waiver of a contested dispositional hearing would result in the denial of reunification services. We affirm. Relevant Factual and Procedural Background Respondent Jose T. is the natural father of Patricia and Arturo, who were bom, respectively, in 1...
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Opinion The defendant, Marcus A., appeals from an order committing him to the California Youth Authority (CYA) after a contested dispositional hearing, arguing that the proceedings were improperly initiated pursuant to Welfare and Institutions Code section 777. 1 The People concede that prejudicial error occurred. We agree and reverse. *425 Facts and Procedural Hi...
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Opinion The issue presented by this appeal is whether a litigant can peremptorily challenge a judge pursuant to Code of Civil Procedure section 170.6, subdivision (2)1 after the judge’s dismissal of the action based on the allegations in the complaint is reversed on appeal. In this action, the trial court granted defendant’s motion to dismiss the complaint concluding the action was barred by the s...
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260 F.3d 997 (9th Cir. 2001) HOWARD M. LEE, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,v.AMERICAN NATIONAL INSURANCE COMPANY; AMERICAN NATIONAL INSURANCE COMPANY OF TEXAS, DEFENDANTS-APPELLEES. No. 99-15846 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 13, 2000Filed August 8, 2001 [Copyrighted Mat...
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ORDER The Opinion filed on May 16, 2001, is amended as follows: On slip opinion page 6224, lines 8 through 8, replace the sentence “As relevant to this appeal, both .... ” with: As explained in the BOP’s 1995 program statement, the BOP defined “crimes of violence” to include drug-trafficking convictions in which the offender received a two-level enhancement under U.S.S.G. § 2D1.1 for posses...
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259 F.3d 1140 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,v.MIGUEL TRINIDAD-AQUINO, DEFENDANT-APPELLEE. No. 00-10013 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 13, 2000--San Francisco, California Submission Vacated May 8, 2001Resubmitted June 8, 2001Filed August 8, 2001 Counsel Michael A. Rotker (argued), Assi...
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259 F.3d 1132 (9th Cir. 2001) MENG LI, PETITIONER-APPELLANT,v.ROBERT C. EDDY, DISTRICT DIRECTOR, INS, RESPONDENT-APPELLEE. No. 97-35814 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 11, 2000Filed August 8, 2001 Counsel Margaret D. Stock, Jeffrey Scott Moeller, Stock & Moeller, Llc, Anchorage, Alaska, for the petitioner-appellant....
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Penny Bachelder 1 claims that her employer, America West Airlines, violated the Family and Medical Leave Act of 1993 (“FMLA” or “the Act”) when it terminated her in 1996 for poor attendance. The district court granted partial summary judgment to America West, holding that Bachelder was not entitled to the Act’s protection for her 1996 absences. Bachelder also appeals from the distric...
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259 F.3d 1101 (9th Cir. 2001) YETI BY MOLLY LTD, A MONTANA CORPORATION; MOLLY STRONG-BUTTS, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,v.DECKERS OUTDOOR CORPORATION; JAMES E. GRANVILLE, DEFENDANTS-APPELLANTS-CROSS-APPELLEES. Nos. 99-36112, 99-36132 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 14, 2001Filed August 8, 2001 [Copyrighted Material...
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110 Cal.Rptr.2d 412 (2001) 26 Cal.4th 519 28 P.3d 151 CONSERVATORSHIP OF the Person of Robert WENDLAND. Rose Wendland, as Conservator, etc., Petitioner and Appellant, v. Florence Wendland et al., Objectors and Respondents; Robert Wendland, Appellant. No. S087265. Supreme Court of California. August 9, 2001. Rehearing Denied September 26, 2001. *414 Law Offices of Lawrence J. Nelson and Lawrence J...
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This case turns on the preclusive effect of a prior state court judgment of conversion. Under 11 U.S.C. § 523(a)(6), a debt for “willful and malicious injury by the debtor to another entity or to the property of another entity” is not dischargeable in bankruptcy. The specific question in this case is whether a civil judgment in California court for conversion under California law necessarily in...
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259 F.3d 1157 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.CALVIN WAYNE BUCKLAND, DEFENDANT-APPELLANT. No. 99-30285 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted August 8, 2000Submission vacated August 9, 2000Resubmitted December 4, 2000Filed August 9, 2001 1 [Copyrighted Material Omitted] 2 Counse...
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260 F.3d 1018 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.FRED JAMES LEMAY, III, DEFENDANT-APPELLANT. No. 00-30193 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 5, 2001Filed August 9, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted] Counsel John P. Rhodes, Federal Defenders of Montana, Missoula, ...
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Opinion In this case, the trial court found that a dissolution judgment properly recorded by appellant Dana J. Gregg and duly indexed under the name of the judgment debtor, appellant’s former spouse James Michael Cloney, was not constructive notice to respondent Lloyd A. Launer as the subsequent purchaser of real property from that same judgment debtor holding title to the subject property under ...
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110 Cal.Rptr.2d 627 (2001) 91 Cal.App.4th 454 CONSUMER CAUSE, INC., Plaintiff and Appellant, v. SMILECARE et al., Defendants and Respondents. No. B147727. Court of Appeal, Second District, Division One. August 9, 2001. Rehearing Denied August 21, 2001. *630 Law Offices of Morse Mehrban and Morse Mehrban, Los Angeles, for Plaintiff and Appellant. Bill Lockyer, Attorney General, Richard M. Frank, C...
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Opinion Rental Equipment, Inc., appeals from a judgment in favor of respondents McDaniel Builders, Inc. and Developers Insurance Company, on its action for foreclosure on a mechanic’s lien. We affirm. Summary A preliminary notice under Civil Code 1 section 3097 is a necessary prerequisite to enforcement of a mechanic’s lien. (§ 3097, subd (a).) Such a notice must incl...
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Opinion Plaintiffs Jack N. Martin and Anita L. Martin (the Martins), appeal from a judgment of dismissal entered upon an order sustaining the demurrer of defendant Wells Fargo Bank (the bank) to their first amended complaint. The bank issued business credit cards to the Law Offices of Jack Martin, one in the name of plaintiff Jack N. Martin, and one in the name of plaintiff Anita L. ...
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Opinion Petitioner Karen H., mother of the minor Kairra, seeks an extraordinary writ (Cal. Rules of Court, rule 39.IB) to vacate the orders of the juvenile court made at the dispositional hearing denying her reunification services and setting a Welfare and Institutions Code section 366.26 hearing (further undesignated section references are to this code). Petitioner also requests a stay of proc...
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Barbara’Kae Hayden (“Hayden”) appeals from a conviction for four counts of theft of personal property from her employer on a U.S. naval base in violation of 18 U.S.C. § 661 (1994), covering theft within the special maritime and territorial jurisdiction of the United States under Chapter 31 (“Embezzlement and Theft”) of Title 18. 1 Among other matters, Hayden argues that section 661 does not cov...
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Michael T. Herbst (“Herbst”) pled guilty to arson in Oregon state court. His federal habeas corpus petition alleging, inter aha, ineffective assistance of counsel was denied sua sponte by the district court as time-barred pursuant to the one-year limitations period enacted under the Antiter-rorism and Effective Death Penalty Act. (“AEDPA”). See 28 U.S.C. § 2244(d). Herbst moved for reconsider...
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Shirley Vertigan appeals the district court’s affirmance of a final decision of the Commissioner of Social Security (“Commissioner”) denying her disability insurance benefits under Title II of the Social Security Act (“Act”), 42 U.S.C. § 401-33. On appeal, Ms. Vertigan contends that there was no substantial evidence on the record as a whole to support the Administrative Law Judge’s (“ALJ”) conclu...
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110 Cal.Rptr.2d 516 (2001) 26 Cal.4th 556 28 P.3d 239 In re RANDY G., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Randy G., Defendant and Appellant. No. S089733. Supreme Court of California. August 13, 2001. *518 Robert S. Gerstein, Santa Monica, under appointment by the Supreme Court; and Michele A. Douglass, Long Beach, under appointment by the Court o...
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110 Cal.Rptr.2d 809 (2001) 26 Cal.4th 572 28 P.3d 860 Leslie FLANNERY, Plaintiff, Cross-defendant and Appellant, v. John F. PRENTICE et al., Defendants, Cross-complainants and Respondents. No. S080150. Supreme Court of California. August 13, 2001. *811 Nagley & Meredith, Nagley, Meredith & Miller and Lawrence N. Hensley, Sacramento, for Plaintiff, Cross-defendant and Appellant. Joe Ross M...
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Opinion Traditionally, minors could be tried as adults only when a juvenile court found them unfit for that court’s jurisdiction. But Proposition 21, the Gang Violence and Juvenile Crime Prevention Act, passed by the electorate on March 7, 2000, changed that. Now 14- through 17-year-olds accused of certain crimes are subject to mandatory direct filing in adult court (Welf. & Inst. Code, §...
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*590 Opinion Francisco G., father of the child Esmeralda G., files this petition for extraordinary writ challenging the findings and orders of the juvenile court in setting a hearing pursuant to Welfare and Institutions Code section 366.26. 1 (§ 366.26, subd. (/); Cal. Rules of Court, rule 39.IB.) Father argues that the juvenile court erred in ordering a bypass of reunification services pur...
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Rick L. Myers, Tadeusz Nogacki, and Bronislaw Kuchczynski (collectively Myers) brought this in rem class action in admiralty against the fishing vessel F/V American Triumph (the Vessel), and asserted various causes of action allegedly arising out of the Vessel’s taking of ferae nature fish pursuant to a Certificate of Documentation and Fishery Endorsement (Certificate) issued by the United States ...
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This case stems from the efforts of Seven Words LLC to register sixteen Internet domain names 1 based on the George Carlin “Seven Dirty Words” routine. 2 When Network Solutions, Inc. (“NSI”) refused to register the names, Seven Words brought suit for declaratory and injunctive relief, claiming that NSI’s refusal to register the names infringed its rights under the “liberty...
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This case raises issues at the intersection of administrative, Indian, and anti-discrimination law. We must decide whether the district court properly enforced an administrative subpoena issued to an Indian tribe in connection with an age-discrimination investigation. Robert Grant, a member of the Karuk Tribe (“the Tribe”) and an employee of the Karuk Tribe Housing Authority (the “Housing Autho...
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Opinion by Judge BEEZER; Concurrence by Judge BERZON This is an appeal in a civil suit from a final judgment of dismissal on forum non conveniens grounds. We have jurisdiction, and we affirm. I Appellant Ingo Leetsch is an attorney admitted to practice in the Federal Republic of Germany. He filed suit in the Central District of California seeking a judgment for attorney fees and costs for services...
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260 F.3d 1083 (9th Cir. 2001) CLARINDA TAVU VALDERRAMA, PETITIONERv.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT No. 99-71591 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 17, 2001Filed August 13, 2001 Counsel: Johnson P. Lazaro, San Francisco, California, for the petitioner. Lyle Jentzer, Washington, D.C. (argued); John M. M...
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OPINION The principal issue in this appeal is whether certain private cordless telephone conversations are protected from interception by Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic Communication Privacy Act of 1986 (hereafter the “Wiretap Act”). See 18 U.S.C. §§ 2510, 2511. The district court granted summary judgment for th...
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Defendant Alberto Castro-Hernandez appeals his sentence for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and possession of marijuana with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1). He argues that the district court erred by applying a two-level upward adjustment, under U.S.S.G. § 3B1.4, for the use of a minor to assist in *1059 avoiding d...
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Chad Taylor appeals his conviction for disorderly conduct. For the following reasons, we reverse the judgment of the district court. I. On May 4, 2000, Park Ranger Arthur Gunzel was dispatched to Lost Arrows Cabins at the Yosemite National Park to settle a dispute between some employees. He interviewed three employees, one of whom identified Chad Taylor as a witness to the dispute. Officer Gu...
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Juan Jose Lopez appeals the imposition of related conditions of supervised release: that he participate in a program of mental health treatment, and that he consent to the release of evaluations and treatment information to the probation officer and the court. The district court imposed these conditions sua sponte, and we must decide whether presentence notice was required by Fed.R.Crim.P. 32 and...
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260 F.3d 987 (9th Cir. 2001) SARAH BAKER, A MINOR, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST TO HENRY BAKER, DECEASED, BY AND THROUGH HER GUARDIAN AD LITEM, LORIE MCKINNON, PLAINTIFF-APPELLANT,v.ADVENTIST HEALTH, INC.; REDBUD COMMUNITY HOSPITAL DISTRICT; WOLFGANG SCHUG, M.D.; JANZEN, JOHNSTON & ROCKWELL EMERGENCY MEDICAL GROUP OF CALIFORNIA, INC., DEFENDANTS-APPELLEES. No. 00-15273 ...
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261 F.3d 771 (9th Cir. 2001) JUAN MANUEL MURILLO-ESPINOZA, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE; JOHN ASHCROFT,* ATTORNEY GENERAL, RESPONDENTS. No. 00-70096 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 12, 2001--San Francisco, CaliforniaFiled August 14, 2001 Counsel Michael Franquinha (argued), Stender & Larkin, Phoeni...
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Opinion Appellants Ashley and Alexa Arnold, through Michelle Arnold, as guardian ad litem, appeal from a judgment entered after the trial court granted summary judgment in favor of respondents Q.B. Scott Company, Inc. (Scott), Lumber City Corporation (Lumber City), Ezell Nursery Supply, Inc. (Ezell), Dow Agrosciences, LLC, and The Dow Chemical Company (collectively referred to as Dow), Va...
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Opinion In July 1996, Carlos R. Tapia pled guilty to one count of robbery. A three-year state prison sentence was imposed and *740 suspended, and “formal” probation was granted for a term of three years (which meant it would expire on July 10, 1999). Tapia was ordered to spend one year in jail, then to report to the probation department “within 24 hours of [his] release”; if he left the C...
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*626Opinion The jury found defendant and appellant Frederick Ray Brown guilty of forcible rape (Pen. Code, § 261, subd. (a)(2); count l)1 and incest (§ 285; count 2). The trial court found true the special allegations that Brown had suffered two prior serious felony convictions within the meaning of section 667, subdivision (a), and the “Three Strikes” law (§ 1170.12), and had served five prior p...
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James C. Coutchavlis appeals from a conviction for disorderly conduct, in violation of 36 C.F.R. § 2.34(a)(2), for which he was- ordered to pay a fíne of $100 and serve one year of probation. His primary challenge relates to interpretation of the regulation, which defines disorderly conduct as undertaking certain acts “with intent to cause public alarm, nuisance, jeopardy or violence,” 36 C.F.R. ...
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261 F.3d 810 (9th Cir. 2001) BORDEN RANCH PARTNERSHIP; ANGELO K. TSAKOPOULOS, PLAINTIFFS-APPELLANTSv.UNITED STATES ARMY CORPS OF ENGINEERS; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, AN AGENCY OF THE UNITED STATES, DEFENDANTS-APPELLEES No. 00-15700 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 9, 2001Filed August 15, 2001 [Copyrighted...
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263 F.3d 862 (9th Cir. 2001) IN RE: THOMAS M. BANKS, DEBTOR. THOMAS M. BANKS, APPELLANTv.GILL DISTRIBUTION CENTERS, INC., OPINION RONALD RICHARDSON; TRANSWORLD DISTRIBUTION SERVICES, INC. DBA RICHARDSON WAREHOUSE COMPANY, APPELLEES No. 00-55339 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 10, 2001Filed August 15, 2001 1 [Copyrighted...
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261 F.3d 789 (9th Cir. 2001) JACALYN THORNTON, PLAINTIFF-APPELLANTv.MCCLATCHY NEWSPAPERS, INC., DEFENDANT-APPELLEE No. 99-15857 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 15, 2000Filed August 15, 2001 [Copyrighted Material Omitted][Copyrighted Material Omitted] Counsel: Walter W. Whelan (argued), Fresno, California, for the p...
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261 F.3d 775 (9th Cir. 2001) ROY BAUER, PLAINTIFF-APPELLEEv.CEDRIC A. SAMPSON, DEFENDANT-APPELLANT Nos. 99-56964, 00-55408 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 8, 2001Filed August 15, 2001 1 NOTE: SEE CORRECTED OPINIONS OF OCTOBER 15, 2001 ...
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Opinion In an initial custody determination the trial court awarded primary physical custody to the mother, who intends to move with the children to New Mexico. Because the trial court found the move was not motivated by bad faith, it did not abuse its discretion. We affirm. Facts Michael A. and Laurel C. Bryant1 were married in 1985. They have two children of their marriage, ages six and nine. B...
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Opinion On August 9, 2000, the trial court made a true finding that Joshua M. (minor) had committed the crime of unlawful peeking. (Pen. Code, § 647, subd. (i).) 1 At the dispositional hearing, the minor was declared a ward of the court, placed on probation, and ordered to serve 18 days in juvenile hall. The minor contends that the true finding in this matter must be reversed because section ...
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Opinion In this quiet title action, plaintiffs appeal from the trial court’s refusal to grant an injunction compelling the removal of certain encroachments by defendants on plaintiffs’ residential property. The court granted the defendants an interest in plaintiffs’ land in order to protect defendants’ use of the disputed areas. The court labeled that interest “an easement.” However, the ...
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ORDER DENYING MOTION TO REMAND AND CASE MANAGEMENT ORDER I. Introduction Following the Ninth Circuit’s ruling in Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495 (9th Cir.2001), the court raised sua sponte the question of Ikon’s corporate citizenship. *1164 In order to determine Ikon’s “citizenship,” we must identify the state that is...
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261 F.3d 843 (9th Cir. 2001) KAISER ALUMINUM & CHEMICAL CORPORATION, PETITIONER, PUBLIC POWER COUNCIL, INTERVENORv.BONNEVILLE POWER ADMINISTRATION, RESPONDENT VANALCO INC., PETITIONER, PUBLIC POWER COUNCIL, INTERVENORv.BONNEVILLE POWER ADMINISTRATION, RESPONDENT, AVISTA CORPORATION, RESPONDENT-INTERVENOR ALCOA INCORPORATED, PETITIONER, AVISTA CORPORATION; PUBLIC POWER COUNCIL, INTERVENORSv...
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110 Cal.Rptr.2d 828 (2001) 26 Cal.4th 735 28 P.3d 876 RENEE J., Petitioner, v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent; Orange County Social Services Agency et al., Real Parties in Interest. No. S090730. Supreme Court of California. August 16, 2001. *830 Carl C. Holmes, Public Defender, Marri Derby and Paul T. DeQuattro, Deputy Public Defenders, for Petitioner. Bradley A. Bristow, Sacrame...
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*707Opinion Plaintiffs, passengers in an automobile that had been pulled over by a California Highway Patrol officer into the center median strip of a highway for a traffic violation, were injured when a pickup truck ran into their automobile from behind, while the automobile was stopped in the median strip. Plaintiffs thereafter filed this personal injury action against (1) the driver of the pic...
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ORDER AND OPINION ORDER The government’s petition for rehearing is granted. The opinion filed March 21, 2001 and published at 243 F.3d 1159 (9th Cir.2001), is withdrawn. In its stead, the panel substitutes the opinion filed contemporaneously with this order. OPINION Peter Mackby, the owner and managing director of a physical therapy clinic called Asher Clinic, appeals the d...
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Appellant Petitioner Freddy Leon Wild-man (“Wildman”), convicted in Oregon state court of attempted murder, assault, arson and menacing, appeals the federal district court’s order dismissing his petition for habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. See Dows v. Wood, 211 F.3d 480, 482 (9th Cir.), cert. denied, 531 U.S. 908, 121 S.Ct. 254, 148 L.Ed.2d 183 (200...
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Opinion This case involves two consolidated appeals. In the first (B137602), American Contractors Indemnity Company (American Contractors) appealed from orders denying its motions to vacate forfeiture of a bond. In the second (B144246), the County of Los Angeles (County) appealed from an order setting aside summary judgment and exonerating the same bond. Both appeals present the issue of whether ...
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Opinion This is an action under Welfare and Institutions Code 1 section 14124.70 et seq. Under that statutory scheme, “[w]hen benefits are . . . provided to a beneficiary . . . because of an injury for which another person is liable . . . the director [of the Department of Health Services] shall have a right to recover from such person ... the reasonable value of benefits so pr...
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ORDER A majority of the panel has voted to deny the petition for rehearing. Judge Reinhardt voted to grant the petition for rehearing. Judges Reinhardt and Rymer voted to deny the petition for rehearing en banc and Judge Brunetti so recommends. The full court has been advised of the petition for rehearing en banc. An active judge called for an en banc vote, and a majority of the active judges of t...
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Kimberly Associates (“Kimberly”), owner of a low-income housing project in Twin Falls, Idaho, argues that it is not barred from bringing a quiet title action against the United States on property subject to a government loan. Under the circumstances presented by this case, we agree with the district court that the United States has waived sovereign immunity. However, we disagree that the unmist...
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261 F.3d 871 (9th Cir. 2001) CABLE ARIZONA CORPORATION, AN ARIZONA CORPORATION DBA CABLEAMERICA CORPORATION, PLAINTIFF-APPELLANT,v.COXCOM, INC., A DELAWARE CORPORATION DBA COXCOM PHOENIX AKA COX COMMUNICATIONS, INC.; FEIGA PARTNERS LP, A PARTNERSHIP; BLDG ASSOCIATES, INC., A CORPORATION; CLK MANAGEMENT CORP., A PURPORTED CORPORATION; BERNARD/FINNEY MANAGEMENT SERVICES, INC., AN ARIZONA CORPORA...
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261 F.3d 877 (9th Cir. 2001) RODGER M. CRIPE; BRAD J. MARTIN; JAMES P. O'KEEFE; THOMAS F. PALMER; VINCE FEARHEILEY; BRIAN J. ARVIN, PLAINTIFFS-APPELLANTS,v.CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES. BRIAN J. ARVIN; MERCEDES HELEN PHILLIPS, PLAINTIFFS-APPELLANTS,v.CITY OF SAN JOSE; SAN JOSE POLICE OFFICERS ASSOCIATION, DEFENDANTS-APPELLEES. No. 99-15253,, ...
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261 F.3d 896 (9th Cir. 2001) PATRICK HUGH MORRISON, PLAINTIFF-APPELLANT,v.FRANK HALL, DIRECTOR OF THE OREGON DEPARTMENT OF CORRECTIONS; MANFRED MAASS, SUPERINTENDENT OF THE OREGON STATE PENITENTIARY; TAMARA BLAIN, STAFF MEMBER AT THE OREGON STATE PENITENTIARY, DEFENDANTS-APPELLEES. No. 98-35468 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 5, 2001Fi...
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110 Cal.Rptr.2d 844 (2001) 26 Cal.4th 758 28 P.3d 889 SAFECO INSURANCE COMPANY OF AMERICA, Plaintiff and Appellant, v. ROBERT S. et al., Defendants and Respondents. No. S078199. Supreme Court of California. August 20, 2001. *847 LaTorraca and Goettsch, Raymond H. Goettsch and Scott K. Murch, Long Beach, for Plaintiff and Appellant. Greines, Martin, Stein & Richland, Irving H. Greines and Edwa...
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111 Cal. Rptr. 2d 2 (2001) 26 Cal. 4th 876 29 P.3d 103 26 Cal. 4th 876 The PEOPLE, Plaintiff and Respondent, v. Ward Francis WEAVER, Jr., Defendant and Appellant. No. S004665. Supreme Court of California. August 20, 2001. *13 Marvin Rous, San Francisco, and Mark Farbman, San Rafael, under appointments by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys...
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We must determine in this case whether we have jurisdiction to review the petition of an alien opposing deportation on the ground that he is not removable for a criminal conviction because it occurred pri- or to the granting of his visa application. Under 8 U.S.C. § 1252(a)(2)(C) we lack jurisdiction to review final orders of removal if the petitioner is removable for committing an enumerated c...
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This is a Federal Tort Claims Act ease raising the question of whether a certification by the United States Attorney under the Westfall Act 1 was proper under California scope of employment law. FACTS This case was dismissed for lack of subject matter jurisdiction on a motion pursuant to Federal Rule of Civil Procedure 12(b)(1). Declarations were submitted on both sides...
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Appellant Plaintiff Angelica Garduño Arpin (“Arpin”) appeals the district court’s summary judgment in favor of Santa Clara County (“County”), Santa Clara County Sheriffs Department (“Sheriffs Department”), Officer R. Stone (“Stone”), and Officer D. Barnes (“Barnes”) (jointly “County Defendants”) on her claims of false arrest and imprisonment in violation of state law, excessive force in violation ...
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Barbara Waks appeals the district court’s summary judgment in favor of defendant Empire Blue Cross / Blue Shield (“Empire”) in this diversity action. Waks asserts state-law claims based on allegations that Empire improperly refused to make payments under Waks’ individual insurance policy. The district court granted summary judgment to Empire on the ground that the Employee Retirement Income Securi...
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Chrysler Corporation (“Chrysler”)1 appeals sanctions and attorneys’ fees awarded by the district court. Chrysler has twice attempted to remove plaintiffs’ class actions from California state court to federal court. After Chrysler’s second attempt, the district court held that several of Chrysler’s arguments were frivolous, and awarded sanctions and fees. We believe that removal was improper, but w...
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Opinion Alexandra Patarak and other residents of Hilltop Mobile Manor (residents), a mobilehome park in Atascadero, sued the park’s owner, Linda Williams (landlord), for violating the Mobilehome Residency *828 Law (MRL). They alleged and proved that she willfully did not maintain the park’s septic system and willfully denied reasonable access to the common areas of the park. ...
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OPINION Transferees of real property appeal from an order (1) denying their motion to annul the automatic stay and (2) finding that a judgment creditor did not violate the automatic stay. We AFFIRM. I. FACTS This appeal involves an unusual set of facts in that neither appellants nor appel-lee were parties in interest during pen-dency of this bankruptcy case. Instead,...
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*165 OPINION In this case the debtor filed inaccurate schedules showing ownership of non-existent assets and claiming them as exempt. When the trustee attempted to sell unscheduled assets, the debtor convinced the bankruptcy court that those assets were the same as those he had claimed exempt. Byron Z. Moldo, chapter 7 1 trustee (the “Trustee”), appeals from t...
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ORDER This is an appeal from an order dismissing appellant’s chapter 13 bankruptcy case. Appellant has requested the Bankruptcy Appellate Panel (“BAP”) grant a stay of the order pending appeal. We publish to resolve any confusion regarding the bankruptcy court’s ability to stay its own order after a notice of appeal has been filed. FACTS Appellant Jennifer Ho filed a volunta...
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262 F.3d 856 (9th Cir. 2001) GARY EDWARDS, PLAINTIFF-APPELLANT,v.CITY OF COEUR D'ALENE; KOOTENAI COUNTY COMMISSIONERS; PIERCE CLEGG, SHERIFF, IN HIS OFFICIAL CAPACITY AS SHERIFF OF KOOTENAI COUNTY; STEVE JUDY, IN HIS OFFICIAL CAPACITY AS MAYOR OF COEUR D'ALENE; NANCY SUE WALLACE, IN HER OFFICIAL CAPACITY AS CITY COUNCIL PRESIDENT OF COEUR D'ALENE; DICK WHITE, SHERIFF'S DEPUTY, IN HIS OFFICIAL ...
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Opinion Plaintiff CBS Broadcasting Inc. (CBS), a New York corporation, petitions this court for a writ of mandate to compel the Los Angeles County Superior Court to grant its motion for injunctive relief to restrain defendant State Department of Social Services (DSS) from refusing to comply with its request for disclosure under the California Public Records Act (PRA). (Gov. Code, § 6250 et seq.)1 ...
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Opinion Appellant Kim David Lockley appeals from a judgment of dismissal upon the trial court’s order sustaining a demurrer without leave to *879 amend in favor of respondent Law Office of Cantrell, Green, Pekich, Cruz & McCort et al. (hereinafter Law Office) on Lockley’s cause of action for legal malpractice. Lockley alleged Law Office failed to protect Lockley’s legal inter...
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Opinion This is an employment discrimination case under the California Fair Employment and Housing Act. In the unpublished portion *862 of this opinion, we hold the trial court did not commit prejudicial error in admitting certain documents used by respondents to impeach appellant’s testimony. Accordingly, we affirm the verdict in favor of respondents. However, in the publish...
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Opinion When is possession more than possession? When an unconstitutional statute creates a legal presumption that possession means a great deal more. *855 A petition filed under Welfare and Institutions Code section 602 alleged appellant Christopher K. possessed a firearm (Pen. Code, § 12101, subd. (a); count I), and obliterated the identification of a firearm (Pen. Code, § 12090; count II...
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Opinion I. Introduction This appeal from the denial of an anti-SLAPP suit motion requires us to come to the following conclusions: (1) Because the Legislature has specified that the anti-SLAPP suit law (Code Civ. Proc., § 425.16) is to be construed broadly, the provision in the law that a special motion to strike “may be filed within 60 days of the service of the complaint” (§ 4...
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Leticia Gonzalez appeals the 24-month sentence imposed following her guilty-plea conviction for one count of passing and possessing counterfeit currency, in violation of 18 U.S.C. § 472. Gonzalez contends that she did not know that the individual she used to commit the offense was a minor, so her sentence should not have been enhanced under U.S.S.G. § 3B1.4 (use of a minor). She further contends ...
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Jose Mendoza-Ortiz and Jose Cano appeal the district court’s denial of their motion to suppress evidence seized by *884 Customs Service agents in a warrantless search of their workplace and challenge the judgment sentencing them for possession of, and conspiracy to possess with intent to distribute, marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. We have jurisdiction, 28 U.S.C. § 129...
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We are presented with the issue of whether the presence of a Latin cross on *889 private property surrounded by publicly maintained park land atop Mount Soledad in San Diego, California, violates the California and United States Constitutions. The cross sits on land previously owned by the city of San Diego. The district court earlier had issued an injunction against the cross’s pr...
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The district court dismissed this civil rights action brought under 42 U.S.C. § 1983. We disagree with the district court’s narrow reading of the complaint. It adequately alleged a violation of Fonta-na’s civil rights. We reverse and remand for further proceedings. /. Facts and Procedural History In the early morning of August 22, 1997, Mia Fontana (“Fontana” or “plaintiff’) w...
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Opinion Dixie Jane Fraizer (Fraizer) appeals from judgment entered following order granting summary judgment in favor of defendant Hymavathi Velkura, M.D. (Velkura). She contends the trial court erroneously granted summary judgment in that she had standing to assert the claim for the wrongful death of her granddaughter. Statement of Facts and Procedural History Julia Marie Fraizer-Calderon ...
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*926 Opinion Introduction Vincent J. Duffy appeals from that portion of the judgment which finds that he breached his fiduciary duty of disclosure to his spouse, Patricia A. Duffy, and awards her damages for the breach of $400,684. Patricia Duffy appeals from that portion of the judgment which denies her attorney’s fees incurred in asserting and trying her breach-of-fiduciar...
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Opinion In this personal injury case, we hold that defendant County of San Diego (County) and its employees did not have a mandatory duty to *978 prevent an adolescent from running away from Polinsky Children’s Center (Polinsky), where he was placed after being taken into protective custody. Because there was no statutory basis to impose negligence liability on the defendants...
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262 F.3d 897 (9th Cir. 2001) ELLIOT M. KATZ; IN DEFENSE OF ANIMALS, PLAINTIFFS-APPELLEES,v.UNITED STATES OF AMERICA; CORBIN LEE, MAJOR; BRIAN O'NEILL; STEVEN PARKER, SERGEANT; GLYNN C. MALLORY, JR., GENERAL, DEFENDANTS, AND DONALD SAUCIER, PRIVATE, DEFENDANT-APPELLANT. No. 98-16298 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed August 23, 2001 1 Before:...
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Opinion Plaintiff, a disabled employee, resigned from her job after a five-year period during which she claimed her employer was unwilling to effectively accommodate her disability. She sued her employer for disability discrimination and harassment, and the jury found in her favor, awarding substantial sums as damages to compensate for severe emotional distress and lost salary. Many of the incide...
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Opinion Thirty years ago, we examined the mental state for assault and concluded assault requires only a general criminal intent and not a specific intent to cause injury. (People v. Rocha (1971) 3 Cal.3d 893, 899 [92 Cal.Rptr. 172, 479 P.2d 372] (Rocha).) Seven years ago, we reaffirmed Rocha and reiterated that assault was a general intent crime. (People v. Colantuono (1994) 7 Cal.4th 206, 215-2...
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We must decide whether military participation in a civilian criminal investigation violated the Posse Comitatus Act or 10 U.S.C. § 375. Because we conclude that the military’s participation falls under the “independent military purpose” exception, we affirm the district court’s order denying Hitchcock’s motion to dismiss the charges against him or to suppress all evidence because of a violation o...
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Opinion Under the Civil Discovery Act of 1986, the trial court must impose monetary sanctions against anyone engaging in conduct that is a misuse of the discovery process, and must order the abuser to pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. Under Trope v. Katz (1995) 11 Cal.4th 274, 277 [45 Cal.Rptr.2d 241, 902 P.2d 259], a pro se la...
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Opinion I. Introduction This case involves a postpayment audit of a Medi-Cal provider’s claims. Such audits are required under both federal and state law. (42 C.F.R. §§ 447.45(f)(2), 456.3 (2000); Welf. & Inst. Code, § 14170, subd. (a)(1).) No Medi-Cal payments were withheld from the provider. The California Department of Health Services (DHS) administers MediCal, the federal Me...
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*964Opinion Phillip Stanley Wolfe (Phillip) and Joyce Davis Wolfe (Joyce) separated in May 1994, following an 11-year marriage. Phillip appeals from the August 25, 1999, judgment of dissolution following trial on the property issues. He argues the court erred in: (1) dividing equally the $60,000 equity line debt; (2) reimbursing Joyce for separate property payments toward daily living expenses in...
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Opinion Cesar V., biological and presumed father of Anthony and presumed father of Annissa, and Cesar’s mother, Elvia E., seek extraordinary relief from the order of the juvenile court refusing to place the children with Elvia. They claim the social worker failed to assess Elvia properly under the relative placement preference, and the juvenile court should have independently evaluated he...
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111 Cal.Rptr.2d 129 (2002) 26 Cal.4th 834 29 P.3d 209 The PEOPLE, Plaintiff and Respondent, v. Julio Cesar SANCHEZ, Defendant and Appellant. No. S088025. Supreme Court of California. August 27, 2001. *131 Melvyn Douglas Sacks, Los Angeles; Solomon, Saltsman & Jamieson, Ralph Barat Saltsman and Stephen Warren Solomon, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, Da...
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111 Cal. Rptr. 2d 148 (2002) 26 Cal. 4th 860 29 P.3d 225 The PEOPLE, Plaintiff and Respondent, v. Israel CERVANTES, Defendant and Appellant. No. S083267. Supreme Court of California. August 27, 2001. *149 Philip M. Brooks, under appointment by the Supreme Court, Berkeley, for Defendant and Appellant. Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson and David P. Druliner, C...
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Opinion I. Introduction On August 5, 1998, before the present proposed class action was ever filed, the Los Angeles County District Attorney and the Attorney General, each acting on behalf of the People of the State of California, secured separate judgments against defendants in the present lawsuit, Trans World Airlines, Inc. (TWA) and National Collection Systems, Inc., doing business as National...
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Opinion A retailer sold gasoline using a two-tier pricing system, one price for cash, another for credit cards. Signs that were “clear as day” were posted at each gas station to show the difference: *1073 [[Image here]] This opinion explains why, on the facts of this case, the retailer’s pricing system was a permissible discount, not an unlawful surcharge. Facts ...
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263 F.3d 942 (9th Cir. 2001) DANJAQ LLC, A DELAWARE LIMITED LIABILITY COMPANY; METRO-GOLDWYN-MAYER, INC., A DELAWARE CORPORATION; UNITED ARTISTS CORPORATION, A DELAWARE CORPORATION; UNITED ARTISTS PICTURES INC., A DELAWARE CORPORATION; SEVENTEEN LEASING CORPORATION, A DELAWARE CORPORATION; EIGHTEEN LEASING CORPORATION, A DELAWARE CORPORATION; MGM/UA COMMUNICATIONS CO., PLAINTIFFS-APPELLEES,v.S...
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OVERVIEW Gary Fisher and Michael Collins were convicted in California state court in 1992, of murder. Ernest Roe and Theo White, the wardens of the prisons in which Fisher and Collins are incarcerated, appeal the district court’s order granting Fisher and Collins writs of habeas corpus. The appel-lees’ petitions for federal habeas relief were based on a single incident alleged to have occurred ...
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262 F.3d 897 (9th Cir. 2001) PATELCO CREDIT UNION; PATELCO CREDIT UNION HEALTH PLAN; AMANDA JONES, PLAINTIFFS-APPELLEES,v.SUDHIR SAHNI; SAHNI & ASSOCIATES, INC.; SUDHIR SAHNI & ASSOCIATES, DEFENDANTS-APPELLANTS.PATELCO CREDIT UNION; PATELCO CREDIT UNION HEALTH PLAN; AMANDA JONES, PLAINTIFFS-APPELLEES,v.SUDHIR SAHNI; SAHNI & ASSOCIATES, INC.; SUDHIR SAHNI & ASSOCIATES, DEFENDANT...
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Daniel Mendoza was convicted of conspiracy, 1 sale of false immigration documents, 2 and impersonating a United States official. 3 He appeals the two-level vulnerable victim enhancement made to his sentence pursuant to U.S.S.G. § 3Al.l(b). Facts Mendoza won asylum in this country on the ground that he faced persecution in Nicaragua on account of being ...
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262 F.3d 923 (9th Cir. 2001) LOUIS G. NAVELLIER, AN INDIVIDUAL AND TRUSTEE AND SHAREHOLDER OF THE NAVELLIER SERIES FUND (RECENTLY RENAMED THE MFS SERIES TRUST); ROSEMARY J. MCLACHLAN; MARTIN BILLETT; WILLIAM RAUTENBERG; FAITH C. RAUTENBERG; MARK SCHULZ; GAIL SULLIVAN; THOMAS SULLIVAN, PLAINTIFFS-APPELLANTS,v.KENNETH SLETTEN, AN INDIVIDUAL AND TRUSTEE OF THE NAVELLIER SERIES FUND (RECENTLY RENA...
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255 F.3d 683 (9th Cir. 2001) LLOYD W. CRAMER; DANIEL E. LIPICH, PLAINTIFFS-APPELLANTS,v.CONSOLIDATED FREIGHTWAYS INC., DEFENDANT-APPELLEE.GUILLERMO ALFARO, PLAINTIFF,ANDDENNIS R. BLEVINS; RAY R. CASIO; STEVE CUNNINGHAM; RICK DEWOODY; ALEJANDRO GARCIA; DAVID V. GARCIA; RAUL C. GARCIA; JAMES A. GRECO; BRUCE A. HARVEY; JOHN K. HATFIELD; ROBERT W. HATFIELD; LEE A. INGRAM; ZENO KING, JR.; JOHN L. L...
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Opinion The principal issue in this writ proceeding is whether the trial court erred in granting real party in interest summary adjudication, terminating a cause of action brought under the unfair competition law (UCL). 1 The cause of action asserts that a bank was responsible for false and misleading advertising in promoting a credit program as “Same-As-Cash” when it was not. ...
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Opinion Under Family Code section 3653 a party who makes overpayments of support may obtain reimbursement. We conclude that retroactive application of section 3653 is constitutional.1 Jean Marie Dandona appeals a modification order requiring her to reimburse William Araluce for child and spousal support overpayments he made to her over a 14-month period, beginning February 1, 1999.2 We conclude th...
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Opinion Defendant, Orlando James, was charged with possession of marijuana for sale (Health & Saf. Code, § 11359), sale or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and resisting, obstructing or delaying a peace officer in the performance of the officer’s duty (Pen. Code, § 148, subd. (a)(1)). He was also charged with having two prior serious or violent felony ...
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Opinion Following the denial of his motion to suppress evidence under Penal Code section 1538.5, Harold Lee Britton pleaded guilty to a charge under Health and Safety Code section 11350, subdivision (a), for possession of heroin. He asserts the magistrate erred by permitting the prosecution to respond orally to his motion rather than requiring it to file and serve a timely written response, the...
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Opinion Following his convictions of first degree murder and robbery, Vernon Leroy Barker appeals, asserting that the trial court (1) improperly instructed the jury they could convict him of murder based only upon his possession of property stolen from the victim and “slight” corroborating evidence, (2) erroneously failed to give the jury an instruction on the lesser included offense of theft, ...
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The Railroad Retirement Board’s Bureau of Hearings and Appeals upheld the termination of Appellant Cleto Rivera’s disabled child’s annuity under the Railroad Retirement Act (the “Act”). The Railroad Retirement Board (the “Board”) dismissed Rivera’s subsequent appeal as untimely. We dismiss for lack of jurisdiction. I. The government began providing Rivera with a disabled child’s annui...
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We decide whether the Federal Deposit Insurance Corporation (“FDIC”), when it acts as receiver, can avoid liens on real property securing delinquent tax penalties, when the liens were imposed before the FDIC was appointed receiver. We also determine whether the FDIC must pay California redemption charges and “Mello-Roos” taxes. FACTS In December 1994, Orange County, California filed for Chapter 9 ...
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262 F.3d 972 (9th Cir. 2001) ROBERT C. KONOP, PLAINTIFF-APPELLANT,v.HAWAIIAN AIRLINES, INC., DEFENDANT-APPELLEE. No. 99-55106 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 8, 2000 August 28, 2001 Appeal from the United States District Court for the Central District of California D.C. No. CV-96-04898-SJL (JGx) J. Spencer Letts, Distric...
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Plaintiff-Appellee Dr. Tariq Ahmed brought suit in federal district court against Defendants-Appellants Washington Department of Social and Health Services (“DSHS”) and two of its supervisory employees under 42 U.S.C. § 1983 for al- ’ leged violation of his First Amendment rights. He ultimately won a jury verdict for $8,026,009. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, a...
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Trung Tran Nguyen (Nguyen) was convicted by a jury of three methamphetamine offenses, in violation of 21 U.S.C. §§ 963, 960, 952(a), 841(a)(1), 846 and 18 U.S.C. § 2. We hold that Nguyen was denied his Sixth Amendment right to counsel and we reverse the judgment of the District Court. I. At the pretrial conference, Anthony Camacho, a private defense attorney, informed the District Judge that ...
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Alberto Pinela-Hernandez was convicted of conspiracy to possess marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and of possession of marijuana with intent to distribute, and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He was arrested after driving a car that was found to contain more than two hundred pounds of marijuana. Befor...
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This appeal presents the question of whether a statutory anti-assignment restriction on lottery payments justifies departure from the Department of Treasury’s annuity tables when determining the asset’s present value in calculating estate tax. Under the circumstances of this case, we conclude that it does and affirm the judgment of the district court. *1030 I Fran Lebowitz ma...
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This is a case in which an ousted business partner has attempted to force an involuntary bankruptcy in order to gain a business advantage. It calls for this Court to determine the test to be used in determining whether a dispute is “bona fide” for the purposes of filing an involuntary bankruptcy petition under 11 U.S.C. § 303. We adopt the objective test used by the other, circuits and affirm the ...
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Frank Rodriguez, Jose Ramon Lapra-da-Trevino, Pedro Hernandez and Roberta Hernandez appeal their convictions following a jury trial and sentences for drug dealing and money laundering. In a separate memorandum disposition filed with this opinion, we affirm the judgments of conviction. In this opinion, we address, the Apprendi issue raised by the sentences imposed. PROCEEDINGS Defendants were found...
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Opinion In this family law case, the husband sought to reduce spousal and child support in connection with a request for custody of one of the children of the marriage. The trial court granted the custody request but increased the husband’s support payments based on two factors. First, the trial court assigned the husband a tax filing status of “married filing jointly.” In fact, the husband had r...
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Opinion Introduction Plaintiff and appellant Stephen Craig Nicolopulos appeals from a judgment of dismissal following the sustaining of a demurrer without leave to amend to his first amended complaint against the City of Lawndale, the Lawndale City Council, and individual members of the Lawndale City Council. Appellant was the elected city clerk of Lawndale. In February 2000, th...
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Opinion Defendant and appellant, Wesley Eugene Scott, appeals from the judgment entered following his conviction, by jury trial, for assault with a firearm and felon in possession of a firearm, with firearm use, great bodily injury, prior prison term and prior serious felony enhancements (Pen. *1201 Code, §§ 245, 12021, 12022.5, 12022.7, 667.5, 667, subd. (a)(1)). 1 Sentenced to a state pri...
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Opinion Mary Etta Bowen (appellant) filed an order to show cause, seeking a share of the Flying Tiger Lines (Flying Tiger) pension plan *1294benefits of her former husband, Edmund L. Bowen (respondent). In affixing the share to be paid to appellant, the court took into consideration not only the number of years respondent worked for Flying Tiger, but also the number of years respondent worked for ...
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Opinion Appellants, Rick Webb and Mary Leon, challenge the trial court’s finding that a business automobile liability policy issued by respondent, Allied Mutual Insurance Company (Allied), to Dallas Brothers Farms (Dallas Brothers) did not provide coverage for an accident caused by a Dallas Brothers employee. The trial court concluded that, although the subject pickup truck was covered as...
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Opinion After two unsuccessful attempts to provide armed correctional officers in the Santa Clara County jail when control of the jail was transferred from the sheriff (Sheriff or Sheriff’s Office) to the newly formed county Department of Correction (Correction), in 1997 the Santa Clara County Board of Supervisors retransferred jail functions requiring armed officers to the Sheriff. Correctional ...
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In this pro se petition for review, Robert Hall raises procedural and substantive *931 challenges to the Environmental Protection Agency’s (“EPA”) approval of a revision to the air quality plan adopted by Clark County, Nevada, 2 which modifies existing rules for new stationary sources seeking permits to emit pollutants in Clark County. The most significant iss...
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Defendant-appellant Javier Sanchez Barragan appeals from the judgment of conviction for conspiracy to distribute narcotics and distribution of narcotics, in violation of 21 U.S.C. §§ 841(a)(1) & 846, and for money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)®. Barragan contends that the evidence offered at trial is insufficient to support his convictions for conspiracy and money launde...
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263 F.3d 888 (9th Cir. 2001) CALIFORNIA TEACHERS ASSOCIATION; NORMA STEINER; IRELLA PEREZ; KRISTIN WORTHMAN; ASSOCIATION OF MEXICAN AMERICAN EDUCATORS; CALIFORNIA ASSOCIATION FOR ASIAN-PACIFIC BILINGUAL EDUCATION; NATIONAL ASSOCIATION OF BILINGUAL EDUCATORS; EMILY PALACIO; ASSOCIATION OF CALIFORNIA SCHOOL ADMINISTRATORS, PLAINTIFFS-APPELLANTS,v.STATE BOARD OF EDUCATION, AND ITS MEMBERS; YVONNE...
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Opinion Real parties in interest Crystal B., Steven G., and Anita G. (hereinafter Minors) have asserted personal injury claims against County of Los Angeles (County) for the physical and psychological abuse they allegedly received while placed in foster care. County denied their application to file late tort claims under the relevant provisions of what is popularly, albeit *1306not officially, kn...
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Opinion May a trial court defer entry of judgment for a child molester, absent the People’s consent? No. Contrary to defendant’s view, a statute precluding judges from doing so does not violate the separation of powers doctrine. The People charged defendant with eight counts of child molestation, alleging substantial sexual conduct as to one count. (Pen. Code, §§288, subd. (a), 1203.066, subd. (a...
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111 Cal.Rptr.2d 439 (2001) 91 Cal.App.4th 1276 Sue GAMET et al., Plaintiffs and Appellants, v. Christopher BLANCHARD et al., Defendants and Respondents. No. G020908. Court of Appeal, Fourth District, Division Three. August 29, 2001. Review Denied November 14, 2001. *441 Sue Gamet, in pro. per.; and Kurt A. Stiefler, Woodland Hills, for Plaintiffs and Appellants. Martin P. Eramo, Laguna Beach, for...
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*1000Opinion Under an exception to the exclusivity of workers’ compensation remedies, an injured employee may bring a civil action against another employee “[w]hen the injury or death is proximately caused by the willful and unprovoked physical act of aggression of the other employee.” (Lab. Code,1 § 3601, subd. (a)(1).) The question we address is whether, as a general rule, a trial court properl...
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Opinion In this marital dissolution action, appellant Joseph A. Destein, Jr., challenges the amount of guideline child support awarded. In *1388significant part, the court derived the award by imputing a rate of return to appellant’s separate property real estate, which was non-income-producing. Appellant contends the trial court erred principally because it had no discretion to impute income to ...
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Opinion Here we consider whether a bicycle lock on a chain may be a “slungshot” within the scope of the Dangerous Weapons Control Law. (Pen. Code, § 12000 et seq.) We conclude that it may be, if the evidence proves the defendant carried it as a weapon. The San Mateo County District Attorney charged Johnny Ralph Fannin with possessing a slungshot, in violation of Penal Code section 12020, *1401sub...
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Opinion In what is often perceived to be the typical case involving the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq. [further undesignated statutory references are to the Public Resources Code]), a zealous citizens group challenges the approval of a development project by asserting that a government entity failed to consider possible adverse environmental effec...
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Ronald Earl Geiger murdered Hank Dawson in Palmer, Alaska, by attaching a bomb to Dawson’s pickup truck and blowing it up. Geiger confessed to the crime, but claimed he had been coerced into doing it by John Wheeler, who was having an affair with Dawson’s wife. Geiger was ultimately convicted of malicious destruction of a vehicle used in and affecting interstate commerce in violation of 18 U.S.C....
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This case presents the question of when an independent fair housing services provider engaged in advocacy efforts may sue the city with whom it contracts for retaliating against the provider in response to that advocacy. We hold that, as a general matter, retaliation against independent providers can be actionable under the federal Fair Housing Act, 42 U.S.C. § 3617, and the California Fair Emp...
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Robin Lynn Bailey appeals the judgment denying his petition for a writ of habeas corpus. He argues that his appellate counsel provided ineffective assistance by failing to challenge the California superior court’s denial of his motion to suppress evidence seized from a motel room after he was arrested outside the room. I. Factual and Procedural History Bailey was convicted in California super...
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Ronnie Dean Purdy (“Purdy”) challenges the constitutionality of his federal court conviction as “an unlawful user of ... a[ ] controlled substance” in possession of a firearm, in violation of 18 U.S.C. § 922(g)(3). Specifically, Purdy claims that he was convicted in violation of due process because the definition of “unlawful user” contained in § 922(g)(3) is too vague to supply him with adequate...
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263 F.3d 1041 (9th Cir. 2001) LABOR/COMMUNITY STRATEGY CENTER; BUS RIDERS UNION; SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE OF GREATER LOS ANGELES COUNTY; KOREN IMMIGRANT WORKERS ADVOCATES; MARIA GUARDADO; RICARDO ZELADA; NOEMI ZELADA; PEARL DANIELS, PLAINTIFFS-APPELLEES, AND HENRY FREDERICK RAMEY, JR.; O. HOWARD WATTS; WILLIAM TUT HAYES; VICTOR DIBAS, PLAINTIFFS-INTERVENORS,v.LOS ANGELES COUNTY...
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Opinion In action No. A091354 plaintiff and appellant Concord Communities, L.P. (Communities), doing business as Diablo Mobile Lodge, appeals from a judgment of the Contra Costa County Superior Court denying Communities’ petition for writ of administrative mandamus and dismissing Communities’ cause of action for violation of due process against defendant and respondent City of Concord (City). Simi...
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Opinion Melanie Welch (Welch) and Mark Petrofsky (Petrofsky) separately filed petitions for peremptory writ of mandate after they were dismissed from their teaching positions with the Oakland Unified School District (District) on a 15 days’ notice of termination. The trial court granted the petitions, finding that they were probationary employees entitled to 30 *1424 days’ notice and a right ...
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Opinion In this case, we consider whether five statutory programs that fall within the general rubric of “affirmative action” violate state and federal principles of equal protection and are contrary to article I, section 31, of our state Constitution, added by the adoption of Proposition 209 at the November 1996 General Election (hereafter Proposition 209). The litigation, commenced...
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Opinion Appellants Jose and Elsa Chavez brought this civil action for the wrongful death of their adult son, who was killed by a drunk driver. The trial court granted the defendant’s motion for summary adjudication on the ground that appellants lacked standing to sue for their son’s death. Because we conclude that there are triable issues of material fact on the question of appellants’ st...
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Opinion After a court trial in a marital dissolution action, the court entered judgment regarding the character and disposition of certain property of the parties. On appeal, the husband contends that the trial court erred with regard to wife’s severance pay, certain stock options, and a diamond ring. We find no error by the trial court with regard to wife’s severance pay and the stock options, b...
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264 F.3d 817 (9th Cir. 2001) MARICA OVE; JOHN BROWN; JASON FORREST, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS,v.CASEY GWINN, INDIVIDUALLY AND AS CITY ATTORNEY OF SAN DIEGO; WILLIAM KOLENDER, INDIVIDUALLY AND AS SHERIFF OF SAN DIEGO COUNTY; SAN DIEGO COUNTY; CITY OF SAN DIEGO; AMERICAN FORENSIC NURSE, LLC; FAYE BATTISTE OTTO; PATTY KASTEN; HELEN SAMSON; TH...
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266 F.3d 959 (9th Cir. 2001) ROBIN A. DUBNER, PLAINTIFF-APPELLANT,v.CITY AND COUNTY OF SAN FRANCISCO; MICHAEL HENNESSEY, SHERIFF; FRED LAU, POLICE CHIEF, SAN FRANCISCO POLICE DEPARTMENT; LT. EHRLICH, BADGE #1367, SAN FRANCISCO POLICE DEPARTMENT; DEPARTMENT OF PUBLIC HEALTH; JAIL HEALTH SERVICES; NARDA ZIEGLER, SGT. DEFENDANTS-APPELLEES. No. 99-17319 UNITED STATES COURT OF APPEALS FOR T...
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Opinion by Judge TALLMAN: Dissent by Judge WALLACE. Charles Roger Jorss, a California state prisoner, appeals pro se the district court’s dismissal of his habeas petition as time-barred under 28 U.S.C. § 2244(d). Jorss argues that equitable tolling should apply because he diligently pursued his claims and his petitions were found to be time-barred due to extraordinary circumstances beyond his cont...
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Edward Howick appeals his jury convictions of possession of counterfeit currency, possession of fictitious documents, and bringing counterfeit currency into the United States. We affirm. 1 I. A. Discovery and Delivery of the Unlawful Instruments In 1999, a Customs Inspector in Anchorage, Alaska intercepted a suspicious package entrusted to Federal Express for delivery. Addressed to defe...
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This appeal requires us to define the limits on a district court’s discretion to depart downward under U.S.S.G. § 5K2.13 because of a criminal defendant’s significantly reduced mental capacity when the court finds that the defendant’s criminal history demonstrates a need for incarceration to protect the public. We conclude that the United States Sentencing Guidelines prohibit a departure in tho...
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264 F.3d 860 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.REAL PROPERTY LOCATEDAT 22 SANTA BARBARA DRIVE, DEFENDANT,ANDADALINE B. GARCIA; DARNELL GARCIA; MARK A. BORENSTEIN; OPINION TUTTLE & TAYLOR; OVERLAND, BERKE, WESLEY, GITS, RANDOLPHAND LEVANAS, A CALIFORNIA PROFESSIONAL CORPORATION, CLAIMANTS-APPELLANTS. No. 99-57000 UNITED STATES COURT OF APPEALS FOR THE NI...
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OVERVIEW Plaintiff-Appellant Eunice Subia filed a complaint in federal district court to compel the Social Security Administration (“SSA”) to grant her a benefits eligibility hearing. The district court dismissed the action for lack of jurisdiction and entered judgment for the Commissioner of the SSA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and AFFIRM the district court. D...
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Marvin Guthart appeals the district court’s grant of summary judgment in favor of Appellees/Cross-Appellants, trustees of a union trust fund from which Gut-hart claims entitlement to health benefits. Guthart also appeals the award of attorneys’ fees against him. Respondents cross-appeal the district court’s award of only partial attorneys’ fees. We affirm as to the merits.1 I. Background Guthart, ...
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I. Since April 24, 1996, state prisoner ha-beas petitions have been subject to the statute of limitations enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See 28 U.S.C. § 2244(d)(1)(A). Under that statute, state prisoners have one year from the date on which their convictions became final to commence federal habeas corpus proceedings. That ...
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ORDER The opinion filed May 31, 2001, slip op. 6689 and appearing at 253 F.3d 1137 (9th Cir.2001) is amended as follows: At slip op. 6707 and 253 F.3d at 1147, delete the last paragraph and replace with: The district court held that the NMFS acted “arbitrarily and capriciously” when it concluded that three sales of timber that grew in or partly in riparian reserves, Salvage II, Sugar Pine Density ...
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The United States appeals the district court’s order granting Michael Watson Cannon’s motion to suppress evidence seized during the search of his property. Cannon is charged with conspiracy to manufacture, possess with intent to distribute, and distribution of marijuana (Count One), in violation of 21 U.S.C. §§ 846 and 841(a)(1); manufacturing of marijuana (Counts Four and Five), in violation of ...
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264 F.3d 832 (9th Cir. 2001) METABOLIFE INTERNATIONAL, INC., A CALIFORNIA CORPORATION, PLAINTIFF-APPELLANT,v.SUSAN WORNICK, AN INDIVIDUAL; GEORGE BLACKBURN, AN INDIVIDUAL; HEARST-ARGYLE TELEVISION, INC., A DELAWARE CORPORATION, D/B/A WCVB-TV, DEFENDANTS-APPELLEES. No. 99-56814 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 9, 2001--Pasadena, Californi...
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This is a drug conspiracy case in which the main issue is sufficiency of evidence of participation in the conspiracy. I. FACTS This case was tried and the jury convicted. We therefore report the facts based on the evidence introduced at trial. Herrera-Gonzalez was apprehended at a ranch where methamphetamine was being manufactured. The evidence established overwhelmingly that...
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We must decide whether the Younger abstention doctrine requires the dismissal of a federal lawsuit brought to vindicate rights under the Takings Clause of the federal Constitution. I In July 1998, the City of Montclair, California, (“Montclair”) adopted Ordinance number 98-777, a rent-control provision regulating trailer parks. The ordinance prohibits a trailer park owner from increasing th...
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Opinion by Judge TASHIMA; Concurrence by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge KLEINFELD. Plaintiff Robert Devereaux brought suit in federal district court for alleged violations of his federal civil rights, and also on various state law grounds. The district *1073court granted summary judgment in favor of all defendants as to the federal claims and then declined to ex...
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Opinion Kathleen S., the mother of minor Jonathan D., appeals from the juvenile court’s order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)1 The mother contends the juvenile court erred by failing to require compliance with the notice provisions of the Indian Child Welfare Act (the Act). (25 U.S.C. § 1901 et seq.) We agree. Factual and Procedural Background In May 1999 a ...
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Opinion Defendant Donald Laroy Stevens entered a negotiated plea of no contest to one count of evading a police officer (Veh. Code, § 2800.2) and one count of driving with more than 0.08 percent alcohol in his blood (Veh. Code, § 23152, subd. (b)), admitted a prior prison term enhancement (Pen. Code, § 667.5, subd. (b)) and two prior convictions for driving under the influence (DUI), and ...
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Opinion This action arises from “one of our Nation’s newest problems of public policy”: the question of where to dispose of low-level radioactive waste (LLRW). (New York v. United States (1992) 505 U.S. 144, 149 [112 S.Ct. 2408, 2414, 120 L.Ed.2d 120].) In 1985, the State Department of Health Services (Department) selected plaintiff US Ecology, Inc. (Ecology) to develop and ope...
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*158 Opinion Angela Moran sued the Oso Valley Greenbelt Association (Association) for failure to produce the Association’s minutes for inspection. Although the court found the board of directors’ meeting minutes had been “wrongfully” withheld and ordered the minutes produced, the court declined to award Moran her attorney fees and costs pursuant to Corporations Code section 8337....
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Timothy Alan Bishop was convicted of one count of conspiracy to manufacture methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 and one count of establishment of a methamphetamine manufacturing operation in violation of 21 U.S.C. §§ 856(a)(1), 856(b), and 18 U.S.C. § 2. He was subsequently sentenced to 188 months imprisonment. On appeal, Bishop argues that the district c...
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This case involves a dispute between a union representing professors at the University of Alaska and two professors who have not joined the union, object to paying union dues, and contest the manner in which the agency union fee for collective bargaining purposes is determined and collected. BACKGROUND Appellants Robert Carlson and John Morack are professors of the University of Alaska at Fai...
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264 F.3d 952 (9th Cir. 2001) IN RE: FORD MOTOR COMPANY/CITIBANK (SOUTH DAKOTA), N.A., CARDHOLDER REBATE PROGRAM LITIGATIONJOHN B. MCCAULEY, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED; GERALD ESSIG; THOMAS WALTERS, ON BEHALF OF THEMSELVES AND ON ALL OTHERS SIMILARLY SITUATED; JEFFREY SCOTT MERRICK; JOHN LAGROU; HOWARD S. HORNREICH; LYNETTE M. HORNREICH, HUSBAND AND WITH ON THE...
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264 F.3d 929 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.MICHAEL ANDREW GILL, DEFENDANT-APPELLANT. No. 00-10304 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 9, 2001--San Francisco, CaliforniaFiled September 6, 2001 Counsel Eric V. Kersten, Assistant Federal Public Defender, Fresno, California, for the defendant-appell...
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18 U.S.C. § 5032 sets forth a certification requirement to be followed when the federal government undertakes to prosecute a juvenile in federal court. The Attorney General (or by delegation pursuant to regulation, the United States Attorney) must certify, among other things, “that there is a substantial Federal interest in the case or the offense to warrant .the exercise of Federal jurisdictio...
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Opinion Background After the juvenile court entered an order denying reunification services and setting a hearing under Welfare and Institutions Code section 366.26, Linda B.’s (Mother) attorney filed a notice of appeal from the order, instead of a petition for extraordinary writ. 1 Shortly after filing an opening brief, Mother’s appellate counsel also filed a petition for writ of habeas co...
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265 F.3d 811 (9th Cir. 2001) JULIO ABRAHAM; PAUL AGAZZI; GIUSPPE AIELLO; BENNIE ANSELMO, SR.; THOMAS ARENS; RENATO AVANZINO; LILY BACIGALUPI; PETER BACIGALUPI, JR.; DAVID E. BALLESTRAZZE; MIKE BALLESTRAZZE; WILLIAM BANDETTINI; MARY BARIERI; JOHN BARONI; PIETRO BATTILANA; ANTOINETTE BAVOSO; MICHAEL J. BIAGINI; WILLIAM BIONDINI, SR.; FRANKLIN BISHOP; HERBIE BOYD; MADELINE BRANDI; PAUL BRUNETTA; ...
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Mark Leroy Sparks was convicted and sentenced following a bench trial. We must decide whether his prior criminal record qualifies him as an Armed Career Criminal. This is contingent on whether either a prior attempted burglary or a theft from storage lockers qualifies as a violent felony under 18 U.S.C. § 924(e). In respect to his current conviction, Sparks claims that the search of the car and...
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265 F.3d 846 (9th Cir. 2001) IN RE: MOSHE ELIEZER CUKIERMAN, DEBTOR.MOSHE ELIEZER CUKIERMAN, APPELLANT,v.SUSAN L. UECKER, TRUSTEE FOR THE ESTATE OF TRANS-ACTION COMMERCIAL MORTGAGE INVESTORS, LTD.; DAVID L. BRADLOW, TRUSTEE FOR THE ESTATE OF TRANS-ACTION COMMERCIAL INVESTORS, LTD.; JOHN T. KENDALL, TRUSTEE FOR THE ESTATE OF MOSHE ELIEZER CUKIERMAN; LINDA EKSTROM STANLEY, UNITED STATES TRUSTEE,...
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We must decide whether the fact that a defendant attempted to suppress his confession and chose to proceed to trial rather than to plead guilty makes the defendant ineligible under the United States Sentencing Guidelines for a downward adjustment for acceptance of responsibility. Because we conclude that the Sentencing Guidelines create no such categorical ineligibility, we vacate the district co...
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Opinion by Judge BRUNETTI; Dissent by Judge ALARCON. In this case, two utility workers were terminated after their company learned from its medical review officer, whom the company believed was a licensed physician, that both workers had failed federally-required random drug tests. Shortly thereafter, the medical review officer was arrested for impersonating a licensed physician. Once the workers...
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*164 Opinion Defendant Jason Robert Ruiz was convicted of two counts of robbery and one count of attempted robbery and was sentenced to an 80-year-to-life term in prison. He appeals, claiming (1) his absence from the trial requires reversal; (2) an aggregate term approach should have been used to calculate his minimum sentence under the three strikes law 1 or, alternat...
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265 F.3d 869 (9th Cir. 2001) IN RE: GENERAL TEAMSTERS, WAREHOUSEMEN AND HELPERS UNION, LOCAL 890, DBA TEAMSTERS LOCAL 890, AN UNINCORPORATED ASSOCIATION, DEBTOR.SECURITY FARMS; EL DORADO FARMS; MANRIQUEZ & ACUNA, INC.; HIGASHI FARMS, INC.; PISONI FARMS; FREITAS FARMS; SAN YSIDRO FARMS; J.J.C., INC., APPELLANTS,v.GENERAL TEAMSTERS, WAREHOUSEMEN AND HELPERS UNION, LOCAL 890, DBA TEAMSTERS LO...
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Defendant Pfizer Inc. (“Pfizer”) appeals a district court order awarding attorneys’ fees to plaintiffs Susan Kanter and Sharon Plunk (“Plaintiffs”) under 28 U.S.C. § 1447(c). The district court awarded those fees after Pfizer and its three co-defendants removed Plaintiffs’ state-law class action from California court and the district court remanded. Because we agree with the district court that...
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The petitioner Fredy Orlando Ventura petitions for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal of the denial of his asylum application. He contends the record compels a finding that he established past persecution on account of imputed political opinion, and the INS’s evidence of changed country conditions failed to rebut the presumption of future persecution. ...
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This is a consolidated appeal involving 174 separate but virtually identical civil' actions which were filed in the district court by seamen who formerly worked aboard the S.S. Independence, the S.S. Constitution, or both ships. Each plaintiff claims to have been exposed to asbestos in the course of employment on board the vessels. None of these plaintiffs has been diagnosed with any asbestos-rela...
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Opinion Plaintiffs and appellants El-Com Hardware, Inc. (El-Com), Paul Zamberg, and Elie Vrobel appeal a summary judgment granted in favor of defendant and respondent Fireman’s Fund Insurance Company on appellants’ action for breach of an insurance contract and breach of the covenant of good faith and fair dealing. They contend respondent was obligated to defend them under the insurance ...
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Opinion Plaintiff City of Stockton (City) moved to exclude the testimony of the valuation expert for defendant Albert Brocchini Farms, Inc., in this action for eminent domain. The trial court found the expert’s opinion did not have a sufficient factual basis and excluded it. The defendant then stipulated to entry of judgment at the value that the plaintiff’s experts assigned. On appeal, t...
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Opinion Appellant, Crystal J., appeals the juvenile court’s denial of her motion to declare her aunt and uncle, Deborah and Orrie G., her de facto parents. In addition, she claims the juvenile court abused its discretion in failing to place her with Deborah and Orrie. In the published portion of this opinion we find that appellant lacks standing to appeal the court’s ruling on the de facto parent...
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Opinion The criminal law often punishes more harshly an accused who already has a criminal conviction than an accused who has none. The three strikes law is one example. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (b)-(e).) Petty theft with a prior is another. (Pen. Code, § 666.) Vehicle Code sections 23152 and 23550 constitute yet another. 1 Normally punishable as a mi...
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266 F.3d 1201 (9th Cir. 2001) ROBERTA BUGENIG, PLAINTIFF-APPELLANT,v.HOOPA VALLEY TRIBE; THE HOOPA VALLEY TRIBAL COUNCIL; THE TRIBAL COURT OF THE HOOPA VALLEY TRIBAL RESERVATION; HONORABLE BYRON NELSON, JR., JUDGE OF THE HOOPA VALLEY TRIBAL COURT; MERV GEORGE, CHAIRMAN OF THE HOOPA VALLEY TRIBAL COUNCIL, DEFENDANTS-APPELLEES. No. 99-15654 UNITED STATES COURT OF APPEALS FOR THE NINTH CI...
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266 F.3d 1064 (9th Cir. 2001) AIR TRANSPORT ASSOCIATION OF AMERICA; AIRLINE INDUSTRIAL RELATIONS CONFERENCE; FEDERAL EXPRESS CORPORATION; UNITED AIR LINES, INC., PLAINTIFFS-APPELLANTS,v.CITY AND COUNTY OF SAN FRANCISCO; SAN FRANCISCO HUMAN RIGHTS COMMISSION; SAN FRANCISCO AIRPORTS COMMISSION, DEFENDANTS-APPELLEES. No. 99-16391 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Ar...
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266 F.3d 1045 (9th Cir. 2001) HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-APPELLANT,v.UNITED STATES OF AMERICA; HECTOR BERELLEZ; BILL WATERS; PETE GRUDEN; JACK LAWN; ANTONIO GARATE-BUSTAMANTE; FRANCISCO SOSA, AND FIVE UNNAMED MEXICAN NATIONALS CURRENTLY IN THE FEDERAL WITNESS PROTECTION PROGRAM, DEFENDANTS-APPELLEES.HUMBERTO ALVAREZ-MACHAIN, PLAINTIFF-APPELLEE,v.FRANCISCO SOSA, AND FIVE UNNAMED MEXICA...
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This is an appeal from denial by the Board of Immigration Appeals (“BIA”) of a Chinese citizen’s application for asylum and withholding of removal pursuant to § 208(a) and § 241(b)(3) of the Immigration and Nationality Act (“I.N.A.”), 8 U.S.C. §§ 1158(a), 1231(b)(3). We reverse and find the Petitioner is eligible for a discretionary grant of asylum, as well as a mandatory grant of withholding o...
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266 F.3d 1083 (9th Cir. 2001) TAMMY NICHOLAS; SHERYL ALLBERT; JONATHAN T. DUTCZAK; DAVID L. HARDING; ABRAHAM HINSON; VINCENT HUGER; JOAN L. ILES; MICHAEL G. LEFRANCIS; ALLISON M. DETEMPLE-MASS; FRED R. MCKINNEY; KENNETH E. MORANO; DAVID H. RICHARDSON, JR.; WENDY RUTH WARREN, PLAINTIFFS-APPELLANTS,v.ARTHUR WALLENSTEIN, DIRECTOR, KING COUNTY DEPT. OF ADULT DETENTION; ARTHUR AND JANE DOE WALLENST...
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Murphy Wayman Carter, alias Scottie Pimpin, appeals his sentence imposed for conviction under 18 U.S.C. § 2423(a), contending that his crime was not one of violence. We affirm the judgment of the district court. FACTS Carter is a male weighing 235 pounds and 63 in height. In June 1999, Carter took Jane Doe, aged 14, against her will ' from the state of Washington to the state of California in...
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Pro se Plaintiff Robert W. Hall, a resident of Las Vegas, Nevada, brought this action against the Secretary of the Interi- or, alleging that the Bureau of Land Management (BLM), in approving an exchange of public land in the Las Vegas Valley for environmentally sensitive land owned by Del Webb Conservation Corporation (Del *972 Webb), violated the National Environmental Poli...
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Maureen Little (“Little”) appeals from an order granting summary judgment on her claims of hostile work environment and retaliation in violation of Title VII, and wrongful discharge in violation of Washington state law. Because genuine issues of material fact exist on these claims, we reverse the judgment of the district court. We affirm the dismissal of her state law claim of negligent inflict...
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265 F.3d 917 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.GAMMA TECH INDUSTRIES, INC., DEFENDANT-APPELLANTUNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.MICHAEL J. GALLEGOS; TIDELANDS TESTING, INC., DEFENDANTS-APPELLANTSUNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.DEAN STANLEY, DEFENDANT-APPELLANT Nos. 99-50730, 99-50731, 00-50009 UNITED STATES COURT OF APPEALS FOR THE...
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In this appeal, we consider whether the Federal Arbitration Act preempts state law governing the unconscionability of adhesion contracts. Under the circumstances presented by this case, we conclude that it does not, and we affirm the order of the district court denying the motion to compel arbitration. I In 1998, James Ticknor and the Ticknor Lodging Corporation (collectively, “Tick-nor”) executed...
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It has been said that bad credit is like a “Scarlet Letter.” 1 As Americans’ reliance on credit has increased, so-called “credit repair climes” have emerged, preying on individuals desperate to improve their credit records. These organizations typically promise they can have any negative information removed permanently from any credit report ... for a fee. On September 30, 1996, Congress enacte...
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Anthony Alexander Campbell (“Campbell”) appeals from the denial of his 28 U.S.C. § 2254 habeas petition. In his petition, Campbell challenges the constitutionality of his state court convictions for eighteen counts of first-degree burglary and one count of attempted burglary on the grounds that he was deprived of the effective assistance of counsel. Specifically, Campbell asserts that, at the t...
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concurring in part and dissenting in part: I respectfully dissent from Part IV.B but concur in the remainder of the revised majority opinion. I commend the majority for revising the opinion to correct and clarify the law on the First Amendment claims in this appeal. However, I must dissent from its failure to consider all of the evidence adduced by Keyser and Rob-ledo and to view the evidence in t...
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Plaintiff Robert Rodriguez brought this action against Defendant Airborne Express (“Airborne”) for discrimination based on disability in violation of California’s Fair Employment and Housing Act (“FEHA”). After removing the case to federal court on the ground of diversity of citizenship, Airborne moved for summary judgment. The district court granted the motion, dismissing Rodriguez’s action fo...
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Opinion Relying on People v. Garcia (1999) 21 Cal.4th 1 [87 Cal.Rptr.2d 114, 980 P.2d 829], Mark Anthony Jensen contends in this proceeding that the trial court erroneously treated a prior juvenile adjudication as a strike. We issued an order to show cause and, having reviewed the matter, agree with Jensen’s contention. Accordingly, we grant the writ. *264 ...
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Opinion The scope of Penal Code section 591 (section 591)—which makes it a crime unlawfully and maliciously to injure or obstruct a telephone *222 line “or appurtenances or apparatus connected therewith”—seems to have become a recurring appellate issue. Here, we will hold that the jury could properly find defendant Michael Martin Tafoya guilty under section 591 based on the evidence that, dur...
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Shannon Paine was arrested on July 4, 1993, in Pismo Beach, California, by police officers from the Cities of Pismo Beach and Lompoc. He was charged with resisting arrest and with battery on a police officer. The prosecutor later dropped the charges. In a § 1983 suit against the municipalities and several individual police officers {“Paine /”), Paine claimed that he was subjected to excessive...
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West Coast Aluminum Heat Treating Company (“West Coast”) appeals the sentence imposed by the district court following its conviction of six counts of making false statements in violation of 18 U.S.C. § 1001 and one count of conspiracy in violation of 18 U.S.C. § 371. We conclude that the district court did not err in utilizing a loss calculation based on the government’s net profit analysis, an...
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265 F.3d 994 (9th Cir. 2001) GEORGE DOWNING, AN INDIVIDUAL; PAUL STRAUCH, AN INDIVIDUAL; RICK STEERE, AN INDIVIDUAL; RICHARD BUFFALO KEAULANA, AN INDIVIDUAL; BEN AIPA, AN INDIVIDUAL; MIKE DOYLE, AN INDIVIDUAL; JOEY CABELL, AN INDIVIDUAL, PLAINTIFFS-APPELLANTS,v.ABERCROMBIE & FITCH, AN OHIO CORPORATION, DEFENDANT-APPELLEE. Nos. 00-55363, 00-55834 UNITED STATES COURT OF APPEALS FOR T...
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Plaintiff-appellant Michael Batían (“trustee”) appeals the district court’s judgment affirming the decision of the bankruptcy court. Batían filed an action to recover payments made by a chapter 11 debtor to defendant-appellee Transamerica Commercial Finance Corporation (“TCFC”). The bankruptcy court found that the payments were not avoidable transfers under 11 U.S.C. § 547(b). We agree with the ba...
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Opinion A jury convicted defendant of transportation of 135.3 grams of marijuana in his car. (Health & Saf. Code, 1 § 11360, subd. (a).) Defendant contends the trial court erred by (a) failing to instruct the jury, sua sponte, on mistake of fact because defendant believed he was entitled to transport marijuana under the Compassionate Use Act of 1996 (§ 11362.5); 2 (b...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by this or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. ...
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ORDER Upon the vote of a majority of nonre-cused regular active judges of this court,1 *1080it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court. . Judge Berzon was recused. ...
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266 F.3d 979 (9th Cir. 2001) LATRELL F. SPREWELL, Plaintiff-Appellant,v.GOLDEN STATE WARRIORS; NATIONAL BASKETBALL ASSOCIATION, Defendants-Appellees.LATRELL F. SPREWELL, Plaintiff,andROBERT THOMPSON, JR.; GORDON J. ROSE; STEPHEN G. WEIZENECKER; THOMPSON & ASSOCIATES; ROBERT A. GIST; PAUL F. UTRECHT; GIST, KENNEDY & ASSOCIATES,Appellants,v.GOLDEN STATE WARRIORS; NATIONAL BASKETBALL ASS...
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Opinion by Judge B. FLETCHER; Dissent by Judge FERNANDEZ. In this case, we consider whether an alien’s right to equal protection is violated if, in the course of removal proceedings, the Immigration and Naturalization Service (“INS”) refuses to recognize the effects of a British expungement1 statute *1001on a simple drug possession offense that would have qualified for federal first offender trea...
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Opinion This is a marital dissolution action. At issue on appeal are child support, spousal support, and attorneys’ fees. Because the trial court erred in setting support and in denying fees, we reverse and remand. *280Facts and Procedural History Appellant Iris M. Fraser (Iris) and respondent David R. Cheriton (David) were married in February 1980.1 They have four children, all bom between 1980 ...
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AMENDED OPINION In 1997, appellant Jamie Nahman (“Nahman” or “plaintiff’) obtained a state court judgment against Zeus Medical Corporation (“Zeus”) and its alter ego, debtor Brian Paul Jacks (“Jacks” or “defendant”), for $116,882.25 (including interest and costs), on breach of contract and common counts. Jacks filed for chapter 7 1 relief on 2 July 1998. Thereafter, Nahman file...
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OPINION INTRODUCTION The bankruptcy court avoided the lien of Culver, LLC (“Culver”) on the debtors’ former homestead property, which had been voluntarily sold to a third party before the reopening of the debtors’ bankruptcy case. The bankruptcy court ruled that such lien avoidance related back to the date of the filing of the bankruptcy petition. Culver appeals, and contends...
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OPINION INTRODUCTION Charles Douglas Warfel (“debtor”) has appealed the bankruptcy court’s dismissal of his complaint to determine that a civil judgment for restitution was dischargeable *208in his chapter 71 bankruptcy case. The civil restitution judgment was owed to the City of Saratoga (“City”) and was originally imposed as a condition of the debtor’s probation in a criminal proceeding. We ...
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William Lomow pled guilty to one count of money laundering, 18 U.S.C. § 1956(a)(1)(A)© and (B)(i), and one count of conspiracy, 18 U.S.C. § 371, in relation to a scheme to defraud. He appeals the legality of his plea entry and various aspects of the sentence imposed on him. We affirm in part and reverse in part. I Central Contra Costa Sanitary District (“the District”) had the exclusive autho...
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266 F.3d 1023 (9th Cir. 2001) CARL MICHAEL, AN INDIVIDUAL, PLAINTIFF-APPELLANT,v.RIVERSIDE CEMENT COMPANY PENSION PLAN, DEFENDANT-APPELLEE. No. 99-55519 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 15, 2000Filed September 17, 2001 Joseph Ribakoff, Long Beach, California, for the plaintiff-appellant. Thomas N. Charchut, Haight, ...
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266 F.3d 1030 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.JODY MYESHA ORSO, DEFENDANT-APPELLANT. No. 99-50328 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 21, 2001Filed September 17, 2001 Elizabeth A. Newman (argued), Emily S. Uhrig, and Maria E. Stratton, Federal Public Defender, Los Angeles, California, for the defen...
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ORDER AND OPINION ORDER This court’s Memorandum disposition, filed June 5, 2001, is hereby withdrawn. The attached Opinion is filed in its place. The petition for rehearing and petition for rehearing en banc, filed June 29, 2001, are denied as moot. OPINION Salvador Martinez appeals the district court’s dismissal of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. The di...
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Opinion Before serving a professional negligence complaint against a licensed engineer, the plaintiffs attorney must file a certificate of merit declaring that “there is reasonable and meritorious cause” for filing the action. The declaration must be based on the attorney’s consultation with a licensed engineer who is not a party, whom the attorney “reasonably believes is knowledgeable in...
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*374 Opinion Petitioners herein and defendants below, Barmas, Inc., doing business as Hair At Fred Segal, Michael A. Baruch and Paul DeArmas (Baruch hereafter unless context requires otherwise) petition this court for a writ of mandate and/or prohibition or other appropriate relief challenging an order of the Los Angeles County Superior Court, Warren L. Ettinger, judge presiding, granting the...
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Opinion In this class action lawsuit alleging contractual breach and unfair business practices, General Motors Acceptance Corporation (GMAC) appeals from the part of the judgment finding a breach of contract and from the trial court’s orders denying its motions to vacate the judgment and for judgment notwithstanding the verdict (case No. C032862); GMAC also appeals from an order awarding ...
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Opinion Isiah S. appeals from the order granting Fredrick W. de facto parent status in the dependency proceedings filed on behalf of Isiah’s daughter, Leticia S. Isiah contends the court abused its discretion by granting Fredrick de facto parent status because Fredrick’s conduct was the reason the court found Leticia to be a dependent child. We reverse. Factual and Procedural Background Leticia w...
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266 F.3d 1104 (9th Cir. 2001) MICHAEL A. BALDWIN; CONSTANCE J. BALDWIN, HUSBAND AND WIFE, AND THE MARITAL COMMUNITY COMPOSED THEREOF, PLAINTIFFS-APPELLANTS,v.TRAILER INNS, INC., A CORPORATION REGISTERED IN THE STATE OF WASHINGTON; DON KRAMER, DEFENDANTS-APPELLEES. No. 00-35412 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued March 5, 2001Submitted April 26, 2001Filed Sep...
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Douglas Crawford appeals the Tax Court’s denial of his petition for redetermi-nation of income taxes for tax year 1991 arguing that the Special Trial Judge of the Tax Court lacked jurisdiction to decide constitutional claims and that appointment of special trial judges violates the separation of powers doctrine. We affirm. We have jurisdiction pursuant to 26 U.S.C. § 7482(a) and review United S...
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Opinion Petitioner, Continental Casualty Company (Continental), seeks a writ of mandate compelling the trial court to vacate its order determining that Continental owed a duty to defend a particular lawsuit filed against its insureds, the real parties in interest, Paragon Homes, Inc., and related individuals and entities. 1 Continental also seeks an order requiring the trial co...
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Opinion Plaintiff and appellant John Sanabria appeals from the order awarding costs and attorney fees in favor of defendants and respondents Robert and Gloria Embrey. Sanabria contends the Embreys failed to timely file their memorandum of costs and motion for attorney fees following the voluntary dismissal of his complaint. We agree and reverse. Facts and Procedural Background O...
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*1045OPINION We must decide whether a wholesale energy supplier is entitled to injunctive relief from orders issued by the Governor of California commandeering its contractual rights to deliver electricity to public utilities within the state. I A The electricity contracts at issue in this appeal are the products of the restructuring of the California electricity market, which commenced with the ...
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265 F.3d 1080 (9th Cir. 2001) JOE KENNEDY, as successor in interest and a personal representative of the Estate of Ellen Marie Kennedy; SHAWN KENNEDY; ERIC KENNEDY; SHANNON KENNEDY, by and through her parent and guardian Joe Kennedy; and CHAD KENNEDY, by and through his parent and guardian Joe Kennedy, Plaintiffs-Appellants,v.SOUTHERN CALIFORNIA EDISON COMPANY; COMBUSTION ENGINEERING, INC., De...
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Opinion Plaintiff appeals from summary judgment entered against him in this wrongful termination action. The summary judgment was granted based upon final determinations in an earlier administrative action. We find no triable issue of material fact and affirm the judgment. Factual and Procedural Summary Edward Castillo, Jr., worked for the Bureau of Engineering in the Department...
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Opinion Plaintiff Paykar Construction, Inc. (Paykar), a subcontractor, sued defendant Spilat Construction Corporation (Spilat), the general contractor, for breach of contract and a common count for book account. The jury found that Spilat owed Paykar $259,813. The court entered judgment for Paykar in that amount and denied Spilat’s motion for judgment notwithstanding the verdict. Spilat a...
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*472 Opinion International Fidelity Insurance Company (IFIC), surety on a bail bond, appeals from an order denying its motion to set aside a May 7, 1999, summary judgment and exonerate bail. 1 The principal issue on appeal is whether the May 7, 1999, summary judgment was void for premature entry because a previous February 16, 1999, order properly tolled the 185-day pe...
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Opinion After an unsatisfactory divorce—almost, but not quite, a redundancy—Phillip Laborde sued his wife’s former attorney, Evan L. Ginsburg, and Susan Aronson, the psychologist retained to conduct a custody evaluation in his marital dissolution proceeding. The complaint alleges breach of contract, malpractice, defamation, conspiracy to defame, invasion of privacy, conversion, interferen...
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Opinion by Judge CANBY; Concurrence by Judge GRABER. Plaintiff, Leisnoi, Inc., brings an action under the Quiet Title Act, 28 U.S.C. § 2409a, to quiet title against the United States in property conveyed to Leisnoi as a Native village corporation pursuant to the Alaska Native Claims Settlement Act, 43 U.S.C. § 1601 et seq. The issue is whether the Quiet Title Act conferred jurisdiction upon the d...
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267 F.3d 1013 (9th Cir. 2001) THOMAS JAMES WELCH, PETITIONER-APPELLANT,v.ANTHONY C. NEWLAND, WARDEN, RESPONDENT-APPELLEE. No. 00-15366 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 13, 2001--San Francisco, CaliforniaFiled September 24, 2001 Counsel David M. Porter, Assistant Federal Defender, Sacramento, California, for the petitioner-app...
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266 F.3d 1130 (9th Cir. 2001) FRANK REGULA, PLAINTIFF-APPELLANT,v.DELTA FAMILY-CARE DISABILITY SURVIVORSHIP PLAN, DEFENDANT-APPELLEE. No. 98-55853 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 6, 1999Filed September 24, 2001 [Copyrighted Material Omitted] Lawrence D. Rohlfing, Santa Fe Springs, California, for the plaintiff-appel...
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Appellant’s opening brief cites Rice v. Chater, No. 95-35604, 1996 WL 583605 (9th Cir. Oct.9, 1996). Rice is an unpub *1159 lished disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir.1996). The full text of the disposition ca...
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266 F.3d 1187 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.SHANNON WAYNE TIGHE, DEFENDANT-APPELLANT. No. 00-30263 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted June 13, 2001Filed September 24, 2001 [Copyrighted Material Omitted] Michael Donahoe, Assistant Federal Defender, Helena, Montana, for the defendant-appellant. ...
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I. Tommy Lee Gilbert appeals from the district court’s finding that he violated 26 U.S.C. § 7202 of the Internal Revenue Code (“IRC”) by failing to remit to the Internal Revenue Service (“IRS”) withholding tax that he collected for the employees of his business. Gilbert owned and operated a business called Best in the West Security (“BITW”) between 1988 and 1993. The business provided securit...
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C. A. 9th Cir. Motion of Housing and Development Law Institute et al. for leave to file a brief as amici curiae granted. Certiorari granted. Justice Breyer took no part in the consideration or decision of this motion and this petition....
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Opinion by Judge NOONAN; Dissent by Judge McKEOWN James T. Sinyard and his wife Monique T. Sinyard (the Sinyards) appeal the judgment of the Tax Court determining a deficiency in their income tax for the taxable year 1992. At issue is the taxpayer’s liability for attorneys’ fees paid pursuant to court order approving the settlement of two class actions brought under the Age Discrimination in Empl...
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dissenting: I dissent because the facts in this case present a clear cut violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), and there is no basis in law for the unprecedented legal theory upon which the majority bases its contrary ruling. As my colleagues recognize, in Edwards, the Supreme Court established a bright-line rule prohibiting the interrogation of a su...
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Opinion COFFEE, J. Plaintiffs and appellants George and Carol Goebel own real property that has been condemned due to landslide conditions which began in February of 1998 during the El Niño rainstorms. The Goebels sued defendant and respondent City of Santa Barbara (the City) on the theory that a break in one of its water mains damaged their property and caused the landslide that led ...
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Opinion This case involves a dispute over attorney fees in an inverse condemnation action. Defendant City of West Sacramento (the City) appeals from an order awarding $54,017.33 in attorney fees to plaintiff Josie Andre as trustee of the Josephine De Anda Trust. The City contends there was no evidence that fees in this amount were “actually incurred,” as required by *534Code of Civil Procedure sec...
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Opinion After defendant waived his right to a jury trial, the trial court found him guilty of possessing a deadly weapon, to wit, metal knuckles (Pen. Code, § 12020, subd. (a)(1)).1 As a result, defendant was sentenced to the midterm of two years in state prison. On appeal, defendant contends his conviction should be reversed because the trial court erroneously applied a strict liability standard...
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Carlos Adelzo-Gonzalez appeals his conviction following a plea of guilty to criminal charges of hostage taking, transporting illegal aliens, and harboring illegal aliens. At issue is whether the district court abused its discretion in denying Adelzo-Gonzalez’s repeated requests for appointment of substitute counsel. We conclude that the district court did not make an adequate inquiry and failed...
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268 F.3d 781 (9th Cir. 2001) CHARLES EDWARDSEN, JR., BILL TEGOSEAK, ABEL AKPIK, ROSEMARY AHTUANGARUAK, JOSEPH AKPIK, MABEL KALEAK, GREENPEACE, INC., PETITIONERS,v.UNITED STATES DEPARTMENT OF THE INTERIOR, MINERALS MANAGEMENT SERVICE, RESPONDENT,ANDBP EXPLORATION (ALASKA) INC., STATE OF ALASKA, INTERVENOR-RESPONDENTS. No. 99-71397 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ...
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268 F.3d 791 (9th Cir. 2001) COLUMBIA BASIN APARTMENT ASSOCIATION; BERNARD SHAW; JEAN SHAW; ROBERT LAWRENCE; JOAN LAWRENCE; ROBERT LEE GAINES; BILLIE JEAN S. GAINES; MANUEL VALA; MARIA GALEANA, PLAINTIFFS-APPELLANTS,v.CITY OF PASCO, DEFENDANT-APPELLEE. No. 00-35041 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 12, 2001Filed September 26, 2001 ...
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268 F.3d 763 (9th Cir. 2001) JOE KENNEDY, AS SUCCESSOR IN INTEREST AND A PERSONAL REPRESENTATIVE OF THE ESTATE OF ELLEN MARIE KENNEDY; SHAWN KENNEDY; ERIC KENNEDY; SHANNON KENNEDY, BY AND THROUGH HER PARENT AND GUARDIAN JOE KENNEDY; AND CHAD KENNEDY, BY AND THROUGH HIS PARENT AND GUARDIAN JOE KENNEDY, PLAINTIFFS-APPELLANTS,v.SOUTHERN CALIFORNIA EDISON COMPANY; COMBUSTION ENGINEERING, INC., DEF...
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Opinion Applying the provocative act murder doctrine, a jury convicted appellant Khyle Armando Briscoe of first degree murder, first degree robbery, and first degree burglary. It also found true a special circumstances allegation on the murder charge and firearm use allegations associated with all three offenses. (See Pen. Code, 1 §§ 187, subd. (a), 190.2, subd. (a)(17), 211, 4...
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*615 Opinion We find that a conviction under Penal Code section 245, subdivision (a)(1) for an assault with intent to create great bodily injury is not a serious felony within the meaning of Penal Code section 1192.7, subdivision (c)(31), when it is not an “assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or...
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Opinion Appellants Rita and Virgil Palub bought a Hartford all risk homeowners policy that included property and liability insurance. In 1998, their home was badly damaged. To quote their complaint, their home “was destroyed, rendered uninhabitable, and collapsed as a result of a slope failure above and behind their property.” Appellants sought coverage, alleging that their property damag...
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*628 Opinion This appeal challenges a trial court’s $25,992 sanctions award under Code of Civil Procedure section 128.5 1 against Gerald H. Blum (Blum) and his attorney, Gibson, Dunn & Crutcher LLP (Gibson) (collectively appellants), in favor of Joseph W. Levy (Levy), Bret Levy, Felicia Weston, and Jody Schlesinger (the Levy children) (collectively respondents). A...
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Opinion Jaime Bandal Mabini appeals from the judgment entered following his conviction by jury on two counts of committing a lewd act upon a child. (Pen. Code, § 288, subd. (a).)1 He was sentenced to prison for eight years. The counts involved different victims: Sheila R. and Kayla C. Appellant challenges his conviction only on the count involving Sheila R. The generally applicable six-year statu...
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Opinion Defendant Gary Brian Evans was sentenced to an aggregate term of seven years in prison in three cases stemming from acts of domestic *666 violence against his wife. On appeal, defendant contends the admission of other incidents of domestic violence under Evidence Code section 1109 violated his state and federal due process rights to a fair trial. He also contends the trial court erred...
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Opinion The County of San Bernardino (County) appeals from an order expunging its lien for medical services rendered to Alberto Mares, deceased. It claims that its lien under Government Code section 23004.1 (hereinafter section 23004.1) applies to any settlement that plaintiffs obtained from defendants in this action. We disagree and affirm. Facts and Procedural History On Octob...
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Opinion The trial judge dismissed this action after sustaining a demurrer to the first amended complaint without leave to amend. William and Leslie Turner (the Turners) appeal from the judgment, contending the trial court erred in determining a third party libel and slander action did not trigger a potential for coverage or a duty to defend under a rental dwelling insurance policy. We dis...
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Opinion The appellate department of the Riverside Superior Court affirmed a trial court holding that knowledge is not an element of the crime defined in Penal Code section 466.5, possession of a master key with the intent to commit an unlawful act. 1 The appellate department then granted defendant’s request that the case be certified to this court pursuant to Code of...
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268 F.3d 829 (9th Cir. 2001) DP AVIATION, a Washington general partnership consisting of M.C. Pietromonaco, Inc. and Microm, Inc., Washington corporations; M.C. PIETROMONACO, INC., a Washington corporation; MICOM, INC., a Washington corporation, Plaintiffs-Appellees,v.SMITHS INDUSTRIES AEROSPACE AND DEFENSE SYSTEMS LTD, a foreign corporation, Defendant-Appellant. Nos. 99-35913, 00-35029 ...
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Opinion by Judge RYMER; Dissent by Judge THOMAS Felix Severino appeals his sentence for one count of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846, and seven counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1). The district court sentenced him to a mandatory minimum term of 120 months as a recidivist under 21 U.S.C. § 841(b)(1)(B)....
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268 F.3d 868 (9th Cir. 2001) STEVEN KING AINSWORTH, PETITIONER-APPELLEE-CROSS-APPELLANT,v.JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLANT-CROSS-APPELLEE. Nos. 99-99024, 99-99026 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 12, 2001Filed September 28, 2001 [Copyrighted Material Omitted] ...
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112 Cal. Rptr. 2d 80 (2001) 26 Cal. 4th 1061 31 P.3d 760 Elgin HAYNIE, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; County of Los Angeles, Real Party in Interest. No. S089115. Supreme Court of California. October 1, 2001. *81 Adam Axelrad, Robert Mann, Donald W. Cook; Litt and Associates and Barrett S. Litt, Los Angeles, for Petitioner. Daniel P. Tokaji, Los Angeles, Alan ...
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Opinion A doctor’s obligation to obtain a patient’s informed consent to medical treatment includes “a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Cobbs v. Grant (1972) 8 Cal.3d 229, 243 [104 Cal.Rptr. 505, 502 P.2d 1].) We hold that, as a matter of law, a tre...
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274 F.3d 1276 (9th Cir. 2001) MARJATI WINARTO, PLAINTIFF-APPELLANTv.TOSHIBA AMERICA ELECTRONICS COMPONENTS, INC., ROGER E.A. TAYLOR, WAYNE LIEM, BILL MCKINLEY, RON BIRTCH, NANCY ALEXANDER, DEFENDANTS-APPELLEES No. 99-55448 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 11, 2000Filed Dec. 21, 2001 [Copyrighted Material Omitted][Copyright...
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*714 Opinion I. Introduction Plaintiffs sued their employer for injuries they sustained from exposure to a hazardous chemical substance the employer gave them to clean a film processing lab. The trial court found that the exclusive remedy provision of the Workers’ Compensation Act (WCA) barred plaintiffs’ independent civil action, and granted judgment notwithstanding the ver...
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Saucier v. Katz, 533 U. S. 194 (2001)....
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Ct. App. Ga. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424 (2001)....
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OPINION Debtor attorney appeals the bankruptcy court’s refusal — on grounds of sovereign immunity and Younger abstention — to derail a state bar disciplinary proceeding relating to a $31,000 sanction award for having prosecuted a frivolous action. We grant leave to appeal the interlocutory order granting a motion to dismiss and denying a motion for preliminary injunction, and A...
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*813Opinion Petitioner Ventura Unified School District (District) filed this petition requesting issuance of a writ of mandate directing the respondent court to vacate its order denying a motion for change of venue and to enter in its place an order transferring the case to Ventura County for trial. (Code Civ. Proc., § 394.)1 Following our review of the petition and the relevant law, we reached th...
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Opinion On December 13, 1989, the first of several informations was filed in Fresno County Superior Court against appellant Carl Franklin Harrison. On November 2, 1994, a jury convicted him as follows: *783 — Count one: Penal Code 1 section 286, subdivision (c) (forcible sodomy with child under age 14 and more than 10 years younger than Harrison; victim Tony R.). ...
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Appellant Mirza Ali (“Ali”) was convicted of one count of bank fraud, in violation of 18 U.S.C. § 1344(1), and one count of making a false statement to obtain a bank loan, in violation of 18 U.S.C. § 1014. He was sentenced to 30 months’ imprisonment, four years of supervised release, and was ordered to pay restitution to the victim bank. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we r...
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ORDER The panel has voted unanimously to withdraw the Opinion filed December 29, 2000. The petition for rehearing is DENIED. OPINION The central question before us is whether the district court erred in giving a mixed-motive instruction to the jury considering plaintiffs claim of discriminatory working conditions and wrongful discharge. We conclude that in the absence of sub...
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*805Opinion In Ziello v. Superior Court (1995) 36 Cal.App.4th 321 [42 Cal.Rptr.2d 251] and Foothill Village Homeowners Assn. v. Bishop (1999) 68 Cal.App.4th 1364 [81 Cal.Rptr.2d 195], this court held that property owners rather than lenders must be allowed to control earthquake insurance proceeds where the pertinent deeds of trust did not require earthquake insurance as a condition for the loans,...
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*794 Opinion In this case we consider the application of Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] (Knight), to the recreational activity of boating. A minor child and her siblings brought a negligence claim against the owner and operator of a ski boat for damages arising out of her fall from the ski boat and the subsequent near amputation of her arm by the ...
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267 F.3d 918 (9th Cir. 2001) ROGER A. LONG; RONALD RAY SMITH; AND DISABLED RIGHTS ACTION COMMITTEE, A UTAH NONPROFIT CORPORATION, PLAINTIFFS-APPELLANTS-CROSS-APPELLEESv.COAST RESORTS, INC., A NEVADA CORPORATION; COAST HOTELS AND CASINOS, INC., A NEVADA CORPORATION; COAST WEST, INC., A NEVADA CORPORATION, DEFENDANTS-APPELLEES-CROSS-APPELLANTS Nos. 99-16468, 99-16497 UNITED STATES COURT ...
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267 F.3d 895 (9th Cir. 2001) DONNELL JEFFERS, PLAINTIFF-APPELLEE,v.JAMES GOMEZ, DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS; THEO WHITE, WARDEN, CALIFORNIA STATE PRISON AT SACRAMENTO; SAM BESS, CORRECTIONAL OFFICER AT CALIFORNIA STATE PRISON AT SACRAMENTO; MARGARET YERBY, CORRECTIONAL OFFICER AT CALIFORNIA STATE PRISON AT SACRAMENTO, DEFENDANTS-APPELLANTS. Nos. 99-15867, 99-15868, 99-15...
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Opinion Plaintiff Rachelle Stull (Stull) appeals from a postjudgment order denying her motion for costs and fees under Code of Civil Procedure 1 section 2033, subdivision (o). 2 She claims that the trial court erred in determining that the defendants’ admission of liability on the eve of trial precluded the order she sought. We disagree and affirm. Facts and Pro...
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*872 Opinion Petitioner County of San Luis Obispo (County) seeks review of an order of the Workers’ Compensation Appeals Board (WCAB) awarding respondent Russell Barnes a 10 percent penalty under Labor Code section 5814 1 on all medical benefits, past, present and future, for a single instance of delay in paying a previously assessed penalty of $97.87. The County has been paying medical ben...
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Opinion On August 31, 1999, a jury found appellant Michael Eddie Towey guilty of felony transportation of methamphetamine and the misdemeanors of possession of marijuana, being under the influence of a controlled substance, and giving false identification to a police officer. The trial court found as true enhancement allegations of a prior serious or violent felony conviction for attempted robbery...
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268 F.3d 910 (9th Cir. 2001) HUMETRIX, INC., A CALIFORNIA CORPORATION; BETTINA EXPERTON, DOCTOR, PLAINTIFFS-APPELLEES,v.GEMPLUS S.C.A., A FRENCH CORPORATION; GUY GUISTINI, DEFENDANTS-APPELLANTS,ANDMARC LASSUS; BRUNO LASSUS, DOCTOR; INOVACTION S.A.R.L., A FRENCH CORPORATION; PIERRE ANDREI; MAX MICOUD, DOCTOR, DEFENDANTS.HUMETRIX, INC., A CALIFORNIA CORPORATION, PLAINTIFF-APPELLEE,ANDBETTINA EXP...
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*637 OPINION Olumuyiwa O. Olabanji appeals the sentence imposed upon the revocation of his probation. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we reverse. I. FACTS AND PROCEDURAL HISTORY On September 9, 1998, Olabanji pleaded guilty to one count of forging an endorsement on a treasury c...
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Opinion I. Introduction In 1994, Charles T. Black 1 and Corinne E. Black (the Blacks), then 68 and 67 years of age respectively, entered into a reverse mortgage with Freedom Investment Fund, Inc. (Freedom Investment), using their home as the basis for the mortgage. In 1998, the Blacks, as trustees for the Charles T. Black and Corinne E. Black Trust Agreement, brought this ...
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Opinion Plaintiff, Community Assisting Recovery, Inc., a nonprofit corporation, filed this action on March 6, 1998, against 194 insurance companies which do business in the State of California. The second amended complaint is the operative pleading and alleges that plaintiff was formed to provide “consumer information and education for the full and proper restoration of earthquake-damaged...
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Opinion In a session with his psychotherapist, a patient makes threatening statements about his ex-girlfriend. Penal Code section 4221 makes it a crime to threaten another with great bodily injury or death even when that threat is made to a third party with the intent that it be conveyed to the victim. Here we conclude, among other things, that the patient’s statements do not constitute a violatio...
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Plaintiff Trina Richardson contends on appeal that the district court incorrectly computed the amount of penalty wages owed to her, under state law, by Defendant Sunset Science Park Credit Union and incorrectly determined that she was not entitled to statutory damages under state law because of Defendant’s unlawful deduction from her paycheck. We affirm in part and reverse in part. FACTUAL...
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268 F.3d 924 (9th Cir. 2001) BRENDA LEE NADELL; BRIAN SIDNEY NADELL, PLAINTIFFS-APPELLANTS,HUGH M. DAVIS; CURT OBRONT; WILLIAM WHITEHEAD, III; ROBERT J. KOSSACK, INTERVENORS,v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT; S. LEYBA, OFFICER; M. ETHERTON, OFFICER; G. ZEIL, OFFICER, DEFENDANTS-APPELLEES.BRENDA LEE NADELL; BRIAN SIDNEY NADELL, PLAINTIFFS-APPELLEES,HUGH M. DAVIS; CURT OBRONT; WILLIAM W...
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Appellant Jeannine Jackson (“Jackson”) originally brought this action under 42 U.S.C. § 1983 and Washington state tort law against nine individual police officers (“the officers”), the City of Bremerton, and Police Chief Paul DuFresne. On appeal Jackson claims the officers violated her Fourth Amendment rights by using excessive force in arresting her at a family barbecue in a public park when she ...
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Opinion Joseph Debro appeals from a judgment following the sustaining of respondent’s demurrer to his second amended complaint without leave to amend. Debro contends the trial court erred because one of his causes of action, based on the California False Claims Act (Gov. Code, §§ 12650-12655), was not time-barred. We disagree and affirm the judgment. I. Facts and Procedural History On August 7, 1...
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*959 Opinion Plaintiff Michael J. Mack appeals from the order dismissing his complaint against the State Bar of California after the court granted the State Bar’s motion for judgment on the pleadings. For the reasons set forth below, we affirm the order. Facts and Procedural History Plaintiff and appellant Michael J. Mack (Mack) is an attorney licensed to practice law i...
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C. A. 9th Cir. Certiorari granted, case consolidated with No. 00-1770, Department of Housing and Urban Development v. Rucker et al. [certiorari granted, 533 U. S. 976], and a total of one hour allotted for oral argument. Justice Breyer took no part in the consideration or decision of this petition and this order....
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Ct. App. Cal., 4th App. Dist. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424 (2001)....
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Charles M. Vander commenced this Federal Tort Claims Act (FTCA) action against the United States for injuries he received while he was an inmate at the Federal Correctional Institution at Saf-ford, Arizona. 28 U.S.C. §§ 1346(b), 2671-2680. The district court granted summary judgment against him because he was injured while working on a prison work detail and, as a result, he was limited to the fe...
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Opinion Can staring at a fellow employee—“to gaze fixedly . . . with eyes wide open,” is how the Oxford English Dictionary defines the word— *997 constitute actionable sexual harassment under the California Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) (FEHA)? We hold that under the circumstances disclosed by the record in this case, such conduct may indeed violate FEHA’s pro...
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Opinion This is a libel action in which the defendants (a corporation and its president) claim the plaintiff (an individual) ought to *989 be compelled to arbitrate simply because he is president of another corporation that had a licensing agreement with the defendant corporation. The essence of the defendants’ position is that the plaintiff, who happens to have signed the li...
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Opinion With the court’s approval, a father agreed to pay child support over and above the Statewide Uniform Child Support Guideline amount. (Fam. Code, § 4050 et seq.) 1 About a year later, the father asked the trial court to modify his child support obligation downward simply because he had agreed to pay more than the guideline amount. His request was granted. The mother appe...
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*970 Opinion This case illustrates the danger of using preprinted wills. Decedent Haskell J. Dye had two natural sons who were adopted away (with his consent) by his first wife’s new husband (Arthur Battles) in 1959. Under the law at that time, this cut off their right to inherit from him. The law was changed, effective 1985, to permit some adopted-out children to inherit from th...
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268 F.3d 671 (9th Cir. 2001) ESTER DAZO, AN INDIVIDUAL, PLAINTIFF-APPELLANT,v.GLOBE AIRPORT SECURITY SERVICES, A DELAWARE CORPORATION; TRANS WORLD AIRLINES, INC., A DELAWARE CORPORATION; CONTINENTAL AIRLINES, INC., A DELAWARE CORPORATION; AMERICA WEST AIRLINES, A DELAWARE CORPORATION, DEFENDANTS-APPELLEES. No. 00-15058 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted ...
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Opinion Plaintiff David Cuenllas appeals from an order quashing service of summons in favor of defendant VRL International, Ltd. (respondent). In the published portion of this opinion, part I, we address our jurisdiction to hear the appeal. We conclude that service of a minute order which notes the date of entry in the order but which is not entitled “notice of entry” does...
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Opinion I. Introduction Defendant, Los Angeles Times Communications, a news-gathering organization, appeals from an order denying a special motion to strike the complaint of plaintiff, American Humane Association, pursuant to Code of Civil Procedure 1 section 425.16, the anti-strategic lawsuit against public participation statute. In the published portion of this opinion, ...
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Opinion Petitioner Michael P., a party to a juvenile dependency action, served subpoenas duces tecum on real parties in interest *1040 Orange County Sheriff’s Department and the Westminster Police Department prior to the jurisdictional hearing. Petitioner sought to discover forensic evidence and various investigative reports compiled by real parties during their ongoing crimi...
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Daniel Clark Summers was convicted, after a jury trial, on one count of being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) & 924(e) and one count of possession of an unregistered sawed-off shotgun under 26 U.S.C. §§ 5861(d) & 5871. Summers appeals the district court’s denial of his motion to suppress evidence and the district court’s jury instructions. H...
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267 F.3d 926 (9th Cir. 2001) WARREN WESLEY SUMMERLIN, PETITIONER-APPELLANTv.TERRY L. STEWART, DIRECTOR OF ARIZONA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE No. 98-99002 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 10, 2000--Pasadena, CaliforniaFiled October 12, 2001 1 NOTE: OPINION HAS BEEN WITHDRAWN. ...
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C. A. 6th Cir. Certiorari granted limited to Question 2 presented by the petition....
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Opinion Introduction Mother, Susan S., appeals from the order terminating her parental rights over Vincent S. (Welf. & Inst. Code,1 § 366.26.) We hold that the court committed procedural error because California Rules of Court, rule 1463(a) prohibits the juvenile court from terminating the rights of one parent at a time. However, because the parental rights of father, Charles C., were terminated ...
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Opinion California’s anti-SLAPP statute (Code Civ. Proc., § 425.16; all further unspecified statutory references are to this code) allows dismissal, at an early stage, of a lawsuit designed primarily to chill the *1070 exercise of First Amendment rights. 1 It permits a special motion to strike any cause of action designed to deter acts in furtherance of a person’s ...
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268 F.3d 719 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.JOSE TRINIDAD CHAVEZ-VALENZUELA, DEFENDANT-APPELLANT No. 00-50075 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2001Filed October 15, 2001 1 NOTE: SEE AMENDED OPINION AT 279 F.3d 1062. ...
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268 F.3d 695 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLANTv.PETER MORROS, DEFENDANT,ANDSTATE OF NEVADA; R. MICHAEL TURNIPSEED; NEVADA AGENCY FOR NUCLEAR PROJECTS, DEFENDANTS-APPELLEES No. 00-17330 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 14, 2001Filed October 15, 2001 [Copyrighted Material Omitted] John Cruden, A...
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Opinion by Judge REINHARDT; Dissent by Judge KLEINFELD California prisoner Richard Louis Arnold Phillips appeals the district court’s denial, without an evidentiary hearing, of his 28 U.S.C. § 2254 habeas corpus petition. We conclude that Phillips has asserted a colorable claim that the combined prejudicial effect -of his counsel’s ineffective assistance, and the State’s presentation of false test...
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*1107Opinion The trial court set bail at 10 times the amount specified in the bail schedule but failed to state specific grounds for its decision. The role of this court in reviewing a bail setting is to determine whether the trial court abused its discretion. (Ex parte Duncan (1879) 53 Cal. 410, 411; Ex parte Hoge (1874) 48 Cal. 3, 5; People v. Norman (1967) 252 Cal.App.2d 381, 398 [60 Cal.Rptr....
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OPINION This appeal involves the “relation back” of an amended pleading in the context of the dichotomy between bankruptcy “adversary proceedings” and “contested matters.” It is another instance of how issues arising under the Federal Rules of Civil Procedure (“Civil Rules”) acquire new nuances when incorporated by the Federal Rules of Bankruptcy Procedure (“Bankruptcy Rules”). Concluding...
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268 B.R. 548 (2001) In re Jill D. HILL, Debtor. Michael H. Meyer, Chapter 13 Trustee, Appellant, v. Jill D. Hill, Appellee. BAP No. NC-01-1043-KRB. Bankruptcy No. 00-11847. United States Bankruptcy Appellate Panel of the Ninth Circuit. Submitted July 26, 2001. Filed September 28, 2001. *549 *550 Michael H. Meyer, Santa Rosa, CA, pro se. Michael C. Fallon, Santa Rosa, CA, for Jill D. Hill, Appelle...
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This case construes an appropriation made under the Indian Self-Determination and Education Assistance Act. We hold that the agency’s interpretation of the congressional appropriation of funds was consistent with congressional intent and reverse the district court’s award of additional funding for contract support costs. Facts Under the Indian Self-Determination and Education Assistance Act,1 Indi...
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This appeal requires us to decide how to compute the offset to which an employer owing benefits under the Longshore and Harbor Workers’ Compensation Act (LHWCA) is entitled under 33 U.S.C. § 933(f) when a claimant receives a third-party tort recovery that includes ongoing, periodic payments funded by an annuity contract. The Director of the Office of Workers’ Compensation Programs (Director) al...
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269 F.3d 956 (9th Cir. 2001) KARLA SCHIKORE, PLAINTIFF-APPELLEE-CROSS-APPELLANT,v.BANKAMERICA SUPPLEMENTAL SI RETIREMENT PLAN, DEFENDANT-APPELLANT-CROSS-APPELLEE. Nos. 99-16952, 99-17017 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted April 13, 2001Filed October 16, 2001 [Copyrighted Material Omitted] Margaret M. Farley, Esq., Farley Law O...
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Shotgun Delivery, Inc. (“Shotgun”) appeals the district court’s grant of summary judgment in favor of the United States. The district court upheld the Internal Revenue Service’s (IRS’) assessment of more than $450,000 in delinquent employment taxes, plus interest and penalties, based on the determination that Shotgun should have paid such taxes on compensation paid to its delivery employees. Inste...
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Opinion This is an action by a citizens group challenging a decision on how to use park lands. Save Mile Square Park Committee (SMSPC), a nonprofit corporation, argues the trial court improperly granted summary judgment in favor of the County of Orange and its Board of Supervisors, Cynthia P. Coad, James W. Silva, Charles V. Smith, Todd Spitzer and Thomas W. Wilson.1 We disagree, and affirm. Mile ...
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Opinion Thai Bao Tran petitioned for a writ of mandate to compel the superior court to grant his request for ancillary funding for his capital *1152 murder case. We originally denied the petition summarily. Tran petitioned the Supreme Court for review, which that court granted. The Supreme Court ordered us to consider the petition on its merits, and we have complied. Tran contends the trial...
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Opinion Telles Transport, Inc. (Telles) petitions this court by a writ of review challenging the decision of the Workers’ Compensation Appeals Board (WCAB or Board). On reconsideration, the WCAB remanded the matter to the workers’ compensation administrative law judge (WCJ) to admit medical evidence that respondent Luis Zuniga purposely excluded from the record. We find Zuniga’s trial tactics c...
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“Nothing is more ungainly than a fisherman pulled into the water by his catch. ” —Louis Nizer, My Life in Court I. Introduction A fisherman filed for bankruptcy a year- and-a-half before the Secretary of Commerce promulgated regulations creating post-filing fishing quota rights based on the fisherman’s pre-filing catch history. We hold that these qu...
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269 F.3d 974 (9th Cir. 2001) JOHN W. DISHMAN, PLAINTIFF-APPELLEE-CROSS-APPELLANT,v.UNUM LIFE INSURANCE COMPANY OF AMERICA; THE ADAMS, DUQUE & HAZELTINE LONG TERM DISABILITY INCOME PLAN, DEFENDANTS-APPELLANTS-CROSS-APPELLEES. Nos. 99-55963, 99-56077 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 13, 2001Filed October 17, 2001 [Copyr...
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Opinion A woman shot and injured a man. As a result of the shooting, the woman entered a nolo contendere plea to a felony (assault with a firearm), and she also suffered a civil judgment against her and in favor of the man. The woman is bankrupt but she had homeowner’s insurance at the time of the shooting, and the man wants to collect his judgment from her insurer. The policy excludes coverage f...
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112 Cal. Rptr. 2d 561 (2001) 26 Cal. 4th 1076 32 P.3d 1073 The PEOPLE, Plaintiff and Appellant, v. Dominic D. SLAYTON, Defendant and Respondent. No. S086153. Supreme Court of California. October 18, 2001. *562 Dennis L. Stout, District Attorney, Grover D. Merritt and William Lee, Deputy District Attorneys, for Plaintiff and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assis...
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Tyrus Follet, a resident of the Fort Peck Indian Reservation in Montana, had a two-year, intermittent sexual relationship with his niece, beginning when she was approximately 14 years old. After she complained of his behavior to a school counselor, Follet was indicted for sexual abuse of a minor. He pleaded guilty. Before Follet was sentenced, the victim sought and received psychological counse...
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268 F.3d 1133 (9th Cir. 2001) ORION TIRE CORPORATION, A CALIFORNIA CORPORATION; CHINA TIRE HOLDINGS LIMITED, A BERMUDA CORPORATION, PLAINTIFFS-APPELLANTS,v.GOODYEAR TIRE & RUBBER COMPANY, INC.; GOODYEAR INTERNATIONAL CORPORATION, DEFENDANTS-APPELLEES. No. 99-56639 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 12, 2001Filed: October 18, 2001 ...
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270 F.3d 1272 (9th Cir. 2001) JULIO CESAR OTAROLA, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. No. 99-71405 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 9, 2001Filed October 18, 2001 Alexander N. Lopez, Glendale, California, and Maziar Razi, Pasadena, California, for the petitioner. Kurt B. Larson and Brian G. ...
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The United States appeals the district court’s grant of summary judgment in favor of Jay R. Orme and Julie Ann Orme. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse. The Ormes had transferred real property to Clyde M. Burgess and Janice K. Burgess pursuant to a land sales contract. *993 During the term of the contract, the United States filed a federal tax lien on the proper...
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Roberto Echavama-Escobar (“Echavar-ria”) appeals his sentence of 46 months imprisonment for illegal reentry into the United States following deportation and an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a). He challenges the increase of his sentence by 16 levels pursuant to United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(l)(A), contending that because his prior the...
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Opinion Panyiotis and Andriana Katelaris appeal from summary judgment in favor of the County of Orange, arguing declarations offered in support of the motion were inadmissible. We hold the declarations were properly received, so the judgment is affirmed. The Katelarises own land along Santiago Canyon Road in an unincorporated area of Orange County.1 They believe improvements to the county’s roadsi...
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*1236 Opinion This case arises from a dog attack resulting in tragic injuries to 11-year-old Cody F. The attack occurred on a private road within a subdivision and was witnessed by Cody’s mother and sister. The respondents, property owners and association members in the Rancho Tehama Subdivision Association (RTA), owned access easements over the road. Respondents obtained favorab...
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Opinion Introduction Defendants The Beverly Highlands Homes Association, Dmitri Villard, 1 Walter DeCaen, Lee Bronson and Margie Oswald appeal from a summary judgment in favor of plaintiffs The Committee to Save the Beverly Highlands Homes Association, Sidney Smilove and Arlene Cohen. We reverse the summary judgment. Statement of Facts Defendant The Beverly Highl...
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Opinion Introduction The trial court, feeling compelled by the Indian Child Welfare Act, ordered the minor in this dependency case removed from the home of the only parents the minor knows, and transferred to a home on a Chippewa Indian reservation in Minnesota. We apply the “existing Indian family doctrine” to reverse the trial court’s placement order. *1279Summary In a hearing under Welfare and...
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Opinion The Braille Institute of America, Inc., American Heart Association, Cancer Research Fund of the Damon Runyon-Walter Winchell *1326 Foundation, Hi-Desert Memorial Hospital, and Salvation Army, beneficiaries under a testamentary trust, have appealed from two adverse orders issued in favor of Union Bank of California (Union Bank), the trustee under a testamentary trust created by a will....
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Opinion The trial court found defendant and appellant Anthony Jesus Villegas guilty of attempted first degree murder (count I),1 mayhem (willfully, unlawfully and maliciously disabling and rendering useless the legs of Richard Mercado) (count II),2 and assault with a firearm (count III).3 The court also found true the following enhancement allegations: (1) with regard to counts I and II, defendant...
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268 F.3d 1140 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.PATRICIA KING HILL, Defendant-Appellant. No. 00-30023 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed October 22, 2001 D.C. No. CR-99-60010-1-HO Before: Thomas G. Nelson, Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges. ORDER 1 The Opinion fil...
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Opinion Plaintiff Nattie Thunderburk appeals summary judgment entered against her and in favor of defendant United Food & Commercial Workers’ Union, Local 324 (Local 324). Plaintiff was formerly employed by Local 324 as a secretary. After Local 324 terminated her employment, she sued Local 324 for wrongful termination. Local 324 filed a motion for summary judgment, which the trial court g...
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269 F.3d 1042 (9th Cir. 2001) NICANOR E. CASUMPANG, JR., PLAINTIFF-APPELLANT,v.INTERNATIONAL LONGSHOREMEN'S AND WAREHOUSEMEN'S UNION, LOCAL 142, DEFENDANT,ANDJOHN DOES 1-10; INTERNATIONAL LONGSHORE & WAREHOUSE UNION, LOCAL 142; EUSEBIO LAPENIA, JR., DEFENDANTS-APPELLEES. No. 99-16674 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued February 15, 2001Submission deferre...
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We have jurisdiction pursuant to 28 U.S.C. § 1291. In a separate memorandum disposition we affirmed on all issues raised in this appeal but one. As to that issue, we conclude that the district court erred when it found that the defendant was in constructive possession of a weapon and applied a sentencing enhancement. Accordingly, we vacate the sentence and remand for resentencing. We review the...
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270 F.3d 794 (9th Cir. 2001) ROSALBA AGUIRRE-CERVANTES AKA MARIA ESPERANZA CASTILLO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent, No. 99-70861.I & NS No. Aen-vkc-fqa UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed October 23, 2001 Before: SCHROEDER, Chief Judge. ORDER 1 Upon the vote of a majority of nonrecused...
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Ramon Velarde-Gomez (“Velarde”) appeals his conviction under 21 U.S.C. §§ 952 and 960 for importation of marijuana, and under 21 U.S.C. § 841(a)(1) for possession of marijuana with intent to distribute. The government elicited testimony about Velarde’s post-arrest, pre-Mi-randa non-responses to questions during an interview by border agents, characterizing Velarde’s non-reaction as “demeanor” evid...
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OPINION Bob Wondries Motors, Inc., Toyota Town, Inc., Wondries Nissan, Inc., Country Nissan, Quality Motor Cars of Stockton, Bob Wondries Associates, Inc., Robert S. Zamora and Christina Zamora (taxpayers) appeal the Tax Court’s decision upholding tax deficiencies assessed by the Commissioner of the Internal Revenue Service.1 Taxpayers are automobile dealerships that deferred part of their prepai...
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After a three-and-a-half-week trial, a jury convicted Allen Elias of four offenses, the most serious of which was disposing of hazardous waste without a permit, knowing that his actions placed others in imminent danger of death or serious bodily injury in violation of 42 U.S.C. § 6928(e). Elias appeals on numerous grounds. We address several of them here and the remainder in a memorandum dispos...
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OPINION Federal prisoner Gary Lee Gunderson contends that because the Bureau of Prisons (“BOP”) Program Statement 5162.04 is inconsistent with BOP regulations and has a substantive effect upon him, the BOP may not employ it to deny him early release as a result of his drug rehabilitation program participation. We do not agree that the program statement is substantive rather than interpret...
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Mudher Jassim Mohamed Al-Saher, a native and citizen of Iraq, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal and for protection under the Convention against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252(b). Facts and Procedure Al-Saher ar...
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Opinion Ryan N., a juvenile at the time of the incidents at issue in this criminal case, appeals from juvenile court findings and orders sustaining a petition under Welfare and Institutions Code section 602 alleging he had willfully and deliberately aided, advised or encouraged a suicide in violation of Penal Code section 401. 1 He contends (1) there is insufficient evidence to...
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Opinion The underwriter of an initial public offering of a now-defunct corporation brought this action for damages against the corporation’s accounting firm, alleging the firm prepared false and misleading financial and audit reports knowing and intending the underwriter would rely on these reports in agreeing to underwrite the offering. The trial court applied a “Bily club” ...
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Opinion Defendant William Joseph Garrett pled guilty to a residential burglary, a second degree burglary, and a vehicle theft all occurring in 1998, and the trial court found true five “Three Strikes” priors. The court sentenced defendant to 25 years to life in state prison on May 12, 2000, after the March 7, 2000 passage of Proposition 21 amended the definition of serious felony burglary, Penal C...
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270 F.3d 863 (9th Cir. 2001) CARSON HARBOR VILLAGE, LTD., A LIMITED PARTNERSHIP DBA CARSON HARBOR VILLAGE MOBILHOME PARK, PLAINTIFF-COUNTER-DEFENDANT-APPELLANT,v.UNOCAL CORPORATION, A DELAWARE CORPORATION, DEFENDANT-CROSS-DEFENDANT, AND CITY OF CARSON, DEFENDANT-CROSS-DEFENDANT-CROSS-CLAIMANT-APPELLEE. Nos. 98-55056, 98-55107, 98-55210, 98-55213, 98-55215 and 98-55422 UNITED STATES COU...
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This case should serve as a reminder to employers of their obligation to keep their workplaces free of discriminatory harassment. Although much of what happened here was characterized as “jokes,” neither the discrimination nor the jury verdict is a laughing matter. Troy Swinton, a worker in the shipping department of a cardboard company, was subject to repeated “jokes” by co-workers featuring u...
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112 Cal.Rptr.2d 669 (2001) 93 Cal.App.4th 51 Alexander REESE, Plaintiff and Appellant, v. Hung Kim WONG et al., Defendant and Respondents. No. A093684. Court of Appeal, First District, Division One. October 24, 2001. Review Denied January 3, 2002. *670 Thomas J. LaLanne, San Francisco, for Appellant. John F. Hughes, Dennis J. Leader, Gordon & Rees, LLP, San Francisco, for Respondents. SWAGER,...
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112 Cal.Rptr.2d 677 (2001) 93 Cal.App.4th 37 TRADERS SPORTS, INC. et al., Plaintiffs and Appellants, v. CITY OF SAN LEANDRO, Defendant and Respondent. No. A092448. Court of Appeal, First District, Division Two. October 24, 2001. Review Denied January 16, 2002. *679 James Leonard Crew, San Ramon, Jack Leavitt, Counsel for Appellants. Meyers, Nave, Riback, Silver & Wilson, Andrea J. Saltzman, B...
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*96 Opinion Introduction Real party in interest, plaintiff Peggy Smith (plaintiff), was a woman over the age of 70. A stroke left her incompetent. After the stroke, she became an inpatient at petitioner and defendant Alcott Rehabilitation Hospital (Alcott). Approximately 10 months after the stroke, both of plaintiffs legs were amputated as a result of Alcott’s failure to pro...
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Opinion Introduction This is an action by a creditor to set aside, as a fraud upon her, a conveyance of the debtor’s home to his stepsons. After plaintiff presented her evidence at trial, the court, pursuant to Code of Civil Procedure section 631.8, granted judgment in favor of the defendants, because plaintiff failed to prove that the value of the property exceeded encumbrances and ...
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112 Cal.Rptr.2d 797 (2001) 93 Cal.App.4th 62 The PEOPLE, Plaintiff and Respondent, v. John Richard BARRO, Defendant and Appellant. No. B144905. Court of Appeal, Second District, Division Four. October 24, 2001. Rehearing Denied November 16, 2001. *798 Law Offices of Perliss & Gross, Sanford H. Perliss and Thomas D. Shambaugh, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney Ge...
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Opinion Roman Ramos Cruz appeals from conviction for forcible rape, forcible sodomy, and forcible penetration with a foreign object. He claims that the misadministration of the jury oath rendered the verdict reversible per se. In the published portion of this opinion, we find no reversible error with respect to this issue. He also claims that the trial court erred in failing to instruct the jury s...
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Opinion Assessment bonds provide a means for private property owners to borrow, and to pay over time for, the costs of public infrastructure benefiting their property. In tandem with assessment bonds, reserve bonds are issued as a means of providing bondholders with a degree of assurance that debt service due on the assessment bonds will be paid in the event of credit difficulties. Plaintiff ...
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Opinion A jury convicted defendant of second degree robbery (Pen. Code, §211; undesignated section references are to this code) and false imprisonment by violence (§ 236) and found that he was armed with a *17firearm during the commission of the offenses (§ 12022, subd. (a)(1)). In bifurcated proceedings, the court found that defendant had a prior felony conviction within the meaning of the “Three...
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Opinion Stacy Gordon appeals from a judgment entered in favor of Havasu Palms, Inc. (Havasu), after the trial court granted Havasu’s motion for summary judgment. Gordon argues the trial court erroneously granted summary judgment because there was a triable issue of material fact regarding (1) whether the assumption of risk defense was applicable because Havasu failed to properly design and maintai...
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Opinion 1. Introduction A jury found that defendant Patrick Villa, a San Bernardino County deputy sheriff, committed battery on plaintiff Mark McFadden, for which the jury awarded McFadden $25,000. The jury also found Villa did not violate plaintiff’s civil rights under title 42, United States Code, section 1983, by use of excessive force or otherwise.1 After plaintiff’s motion for new trial or f...
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Opinion In what appears to be a case of first impression in California, we are called upon to address the question whether the plaintiff, in *175 serving the 90-day notice of intent to commence an action against a medical practitioner (Code Civ. Proc., § 364), 1 must allege the specific factual basis of each cause of action in the lawsuit to be filed. We hold: (1) the 90-day notice requirem...
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*167Opinion Here we conclude that the movement of a victim nine feet is sufficient to support a conviction for kidnapping to commit rape. Reno Keith Shadden appeals a judgment after conviction of kidnapping to commit rape (Pen. Code, § 209, subd. (b)(1)),1 assault with intent to commit rape (§ 220), false imprisonment (§ 236), burglary (§ 459), and second degree robbery (§ 211). The court sentence...
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Opinion These consolidated proceedings involve the question whether a health care service plan may enforce an arbitration clause contained in the plan and in related subscriber agreements which does not comply with the statutory disclosure requirements applicable to such clauses. In case No. B145004, the petitioner, George Rivera, seeks a writ of mandate vacating a trial court order grant...
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Opinion Vehicle Code section 17004.7 (hereafter section 17004.7) provides that, when a law enforcement agency adopts a written policy on vehicular pursuits which complies with statutory requirements, the agency is immune from liability for civil damages “resulting from the collision of a vehicle being operated by an actual or suspected violator of the law who is being, has been, or believ...
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Opinion A person violates Penal Code section 245, subdivision (a)(1) (hereafter section 245(a)(1)) by “commit[ting] an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury . . . .” (All statutory references are to the Penal Code unless otherwise specified.) The issue presented in this case is wheth...
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In this case, we decide whether contract language between a stevedoring company and the time charterer of a ship creates a duty for the time charterer to supervise the stevedore’s loading operation. We hold that this contract language does not impose such a duty upon the charterer, and we affirm the district court’s grant of summary judgment for Bowhead. I. FACTS AND PROCEDURE Appellant-Plain...
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Edward Michael Moore, a member of the Yurok Indian Tribe, filed a petition for habeas corpus in the federal district court to challenge a judgment of the Hoopa Valley Tribal Court ordering Moore to pay a penalty of $18,508.50 for cutting timber on the Hoopa Valley Reservation without a permit. The petition was filed pursuant to a provision of the Indian Civil Rights Act that makes the writ of hab...
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Opinion The trial court sustained a demurrer to plaintiff’s complaint against the County of Contra Costa (the County) on the ground that the action was time-barred by Government Code section 946.6.1 In opposition to the demurrer, plaintiff claimed he substantially complied with section 946.6 and argued that the County was estopped from disputing timeliness of the action. Although the complaint was...
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Opinion Sometime in the late 1980’s, Robert W. Carrau purchased over 50 windows from Marvin Lumber and Cedar Company (Marvin), a window manufacturer, which were incorporated into a residence Carrau built for himself and his wife in Orinda, California. The windows proved to be defective, and, on October 17, 1997, Carrau filed suit against Marvin, seeking damages on the theories, as relevan...
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Opinion If, prior to any litigation, an insurer pays the policy limits on a potential claim against its insured in return for a complete release of all claims, does Code of Civil Procedure1 section 877.6 bar its later bid for equitable indemnity against other tortfeasors who enter into good faith settlements with the injured party after litigation commences against them? We conclude it does and h...
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Opinion A jury awarded $99,064 to plaintiff Karen Nishihama for injuries sustained when she tripped and fell in a crosswalk maintained by the City and County of San Francisco (City). The City appeals from a judgment entered on the jury’s verdict, and from denials by operation of law of the City’s motions for judgment notwithstanding the verdict and for a new trial. We reject the City’s cl...
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C. A. 9th Cir. Certiorari granted....
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C. A. 0th Cir. Certiorari granted....
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Opinion Defendant Danny George Raviart was convicted by a jury of two counts of robbery, one count of being a convicted felon in possession of a firearm, one count of possession of methamphetamine, and two counts of assault with a firearm on a peace officer. On appeal, defendant contends there was insufficient evidence to support one of his assault convictions and the jury was improperly ...
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OPINION This appeal presents a basic problem of federal trial practice and illustrates the role of Federal Rule of Civil Procedure 54(b) (“Rule 54(b)”) in distinguishing final from interlocutory orders in appeals involving bankruptcy adversary proceedings. In an adversary proceeding on a two-count complaint to determine nondis-chargeability of a debt, the bankruptcy court granted...
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ORDER WITHDRAWING OPINION The Opinion filed on July 26, 2001 and cited at 257 F.3d 1082 (9th Cir.2001), is withdrawn....
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269 F.3d 1124 (9th Cir. 2001) THOMAS JAMES WELCH, Petitioner-Appellant,v.ANTHONY C. NEWLAND, Warden, Respondent-Appellee. No. 00-15366D.C. No. CV-99-05371-DLB UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed October 29, 2001 Before: Canby, Hawkins, and Gould, Circuit Judges. ORDER 1 The mandate in this matter is ordered STAYED pending ...
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Opinion Jesse W. (father), a parent of three children made dependents of the juvenile court in proceedings initiated in December of 1998, appeals from a final-stage order of January 4, 2001, denying his motion for modification (Welf. & Inst. Code, § 388; all unspecified section references are to this code), appointing his parents guardians of the children, and vacating the dependencies. He claims...
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Opinion Plaintiff Bill Chavez appeals a judgment dismissing his complaint against defendants Whirlpool Corporation (Whirlpool) and Howard’s after the court sustained a demurrer without leave to amend. He alleges that Whirlpool has required Howard’s and other retailers to maintain minimum resale prices for its products and contends the practice constitutes *367an unlawful combination under the Car...
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Opinion In this juvenile dependency proceeding, we conclude the sustained allegations of the petition are insufficient to establish juvenile court jurisdiction. Accordingly, we reverse the court’s jurisdiction and disposition orders and remand the matter to the juvenile court. Facts and Proceedings Below Appellant Tricia T. is the mother of six children. Two of mother’s children are adults and liv...
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Opinion A jury convicted defendant of the following charges: count two, assault with a firearm on Darryl Lavan (Pen. Code, § 245, subd. (a)(2); further references to sections of an undesignated code are to the Penal Code); count three, attempted robbery of Shunn Oliver (§§ 664, 211); count four, assault with a firearm on Oliver (§ 245, subd. (a)(2)); and count seven, being a convicted felon in pos...
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Opinion I. Introduction In this child support modification case, the mother, a successful insurance agent, tried to upwardly modify a child support order against her ex-husband, a recently unemployed stockbroker who had just lost his license and started an unrelated business, without first obtaining his most current tax returns. Rather, she merely presented “lifestyle” evidence based on a series ...
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Opinion Stanley Wirick appeals from a summary judgment in favor of the State Board of Equalization (the Board) in the amount of $431,894.20 in sales tax, interest, and penalties. Wirick contends the provisions of Revenue and Taxation Code section 6829 (all further section references are to this code unless otherwise specified), imposing personal liability on corporate officers upon termination ...
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Opinion In brief, petitioner Wallace Reed Phelps seeks relief from a conviction of violating provisions of the Home Equity Sales Contract Act. (Civ. Code, § 1695 et seq.) 1 He argues that his conduct did not violate any law and that, accordingly, trial counsel rendered constitutionally defective assistance in permitting him to enter a guilty plea. 2 We agree. Th...
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113 Cal.Rptr.2d 195 (2001) 93 Cal.App.4th 422 Brent Howard WOOTEN et al., Petitioners, v. The SUPERIOR COURT of San Bernardino County, Respondent; The People, Real Party in Interest. No. E028089. Court of Appeal, Fourth District, Division Two. October 30, 2001. Review Denied January 29, 2002. *196 Roger Jon Diamond, Santa Monica, for Petitioners. No appearance, for Respondent. Dennis L. Stout, Di...
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*396Opinion Under the “Three Strikes” law, a defendant is subject to increased punishment for his current offense if he has previously been convicted of specified offenses. (Pen. Code, §§ 667. subds. (b) -(i), 1170.12.)1 Defendant, William Leo Fox, appeals claiming his Oregon conviction for second degree rape, which is defined as sexual intercourse with a minor under the age of 14, does not consti...
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Opinion James D. Devine, a cotrustee of the Mary S. Sigourney Award Trust, a charitable trust, petitioned the trial court for instructions concerning the appointment of a successor trustee. The American Psychoanalytic Association (APA), Stephen K. Firestein, and Newell Fischer replied and opposed the petition on the basis that' the underlying orders that had amended Mary Sigourney’s testamentary ...
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*846ORDER Judges Browning and B. Fletcher have voted to reject the petition for rehearing. Judge Gould would have granted the petition. Judges Browning and B. Fletcher recommended denial of the petition for rehearing en banc. Judge Gould voted to grant the en banc hearing. The full court was advised of the petition for rehearing en banc. An active judge requested a vote on whether to rehear the ma...
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OPINION A jury convicted William Bushyhead of first-degree murder in the Indian Country of the United States in violation of 18 U.S.C. §§ 1111, 1151, and 1153. The district court sentenced him to the statutorily required term of life imprisonment. Bush-yhead appeals on three grounds: First, he argues that a new trial is required because the petit jury pool did not include jurors drawn from Indi...
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We must determine whether a police officer who conducts a coercive, custodial interrogation of a suspect who is being treated for life-threatening, police-inflicted gunshot wounds may invoke qualified immunity in a civil suit for damages under 42 U.S.C. § 1983 (2001). Under the circumstances of this case, we hold he may not. I On November 28, 1997, police officers Maria Pena and Andrew Salina...
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270 F.3d 821 (9th Cir. 2001) FOAD CONSULTING GROUP, INC., A CALIFORNIA CORPORATION PLAINTIFF-APPELLANT,v.MUSIL GOVAN AZZALINO, AN ARCHITECTURAL DEVELOPMENT, A CALIFORNIA CORPORATION; LARRY MUSIL; AGRA LLC; CANYON PARTNERS, INC., A CALIFORNIA CORPORATION; HAWKEYE INVESTMENTS LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, DEFENDANTS-APPELLEES. No. 98-56017 UNITED STATES COURT OF APPEALS FO...
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Opinion The dictionary definitions of “decay” include a general sense of gradual deterioration in strength or soundness, and a more specific sense of rot or organic decomposition, This case presents the question whether a property insurance policy covering collapse of a building due to “hidden decay” applies to the unexpected failure of wooden roof trusses, with no evidence of rot. We co...
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113 Cal.Rptr.2d 294 (2001) 93 Cal.App.4th 544 CONSERVATORSHIP OF the Person and Estate of Joel M. LEVITT. Frumeh Labow, as Conservator, etc., Petitioner, v. Marc B. Hankin, Claimant and Appellant. Conservatorship of the Person and Estate of Peggy Page. Frumeh Labow, as Conservator, etc., Petitioner, v. Marc B. Hankin, Claimant and Appellant; Kathryn Stanley, as Executor, etc., Claimant and Respon...
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Opinion Petitioner Janet DeLong (DeLong) seeks a writ of habeas corpus directing respondent superior court to sentence her to probation with no incarceration pursuant to Proposition 36, the drug probation initiative. (Pen. Code, § 1210 et seq.) 1 The essential issue presented is the applicability of Proposition 36 to a defendant such as DeLong who was adjudged guilty prior to...
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Opinion Defendant appeals his carjacking and robbery convictions. He raises three issues, but we need only discuss one, since that one requires reversal. The trial court substituted in an alternate juror to replace a juror who was ill, but failed to give the newly constituted jury the mandatory instruction that it disregard its previous deliberations and begin deliberations anew. That is ...
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Opinion In Arden Carmichael, Inc. v. County of Sacramento,1 this court held that a fee imposed on nonprofit organizations by the County of Sacramento (the County) based upon a percentage of their gross receipts earned from bingo games violated article XIII, section 26, subdivision (d) of the state Constitution (hereinafter sometimes referred to as subdivision (d)). Subdivision (d) provides that a...
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113 Cal.Rptr.2d 271 (2001) 93 Cal.App.4th 518 The PEOPLE, Plaintiff and Respondent, v. Jose RUGAMAS, Defendant and Appellant. No. C035576. Court of Appeal, Third District. October 31, 2001. Roeser & Roeser and Michael J. Roeser, Zephyr Cove, NV, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistan...
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113 Cal.Rptr.2d 284 (2002) 93 Cal.App.4th 525 ANCHOR MARINE REPAIR CO., Plaintiff and Appellant, v. Jeff MAGNAN, Defendant and Respondent. No. G028751. Court of Appeal, Fourth District, Division Three. October 31, 2001. Review Denied January 16, 2002. *285 William J. Kopeny & Associates, William J. Kopeny, Irving; and Sterling Scott Winchell, Santa Ana, for Plaintiff and Appellant. Aires Rayn...
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113 Cal.Rptr.2d 328 (2001) 93 Cal.App.4th 633 UNITED SERVICES AUTOMOBILE ASSOCIATION, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; John Moore et al., Real Parties in Interest. No. B150551. Court of Appeal, Second District, Division Four. November 1, 2001. Review Denied February 27, 2002. *329 Robie & Matthai, James R. Robie, Pamela E. Dunn, Natalie A. Kouyoumdjian, Los Ang...
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OPINION After Thomas and Nancy Beaty (“Debt*841ors”) received a chapter 71 discharge, David Selinger obtained a state court default judgment against Thomas (the “Default Judgment”). Selinger then filed an adversary proceeding seeking to revoke Debtors’ discharge under § 727 (the “ § 727 Action”). After a hearing, Debtors were granted summary judgment. Later, Selinger filed a second complaint (t...
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113 Cal. Rptr. 2d 27 (2001) 26 Cal. 4th 1100 33 P.3d 450 The PEOPLE, Plaintiff and Respondent, v. Martin James KIPP, Defendant and Appellant. No. S009169. Supreme Court of California. November 1, 2001. Rehearing Denied January 29, 2002. *36 Ross Thomas, San Francisco, and John Ward, Berkeley, under appointments by the Supreme Court, for Defendant and Appellant. Bill Lockyer, Attorney General, Dav...
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Opinion When an employee is injured at work through the fault of someone other than the employer, the Workers’ Compensation Act (Lab. Code, § 3200 et seq.)1 permits the employee not only to claim workers’ compensation benefits from the employer but also to recover personal injury damages from the party at fault. (§ 3852.) To obtain reimbursement for the cost of the benefits paid to the employee, t...
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Concurring in part and Dissenting in part: I agree with the Majority’s conclusion in Part II that Andrade filed the functional equivalent of a timely notice of appeal. I respectfully dissent, however, from the Majority’s conclusion in Parts IV and V that Andrade’s sentence violates the Eighth Amendment. The sentence imposed in this case is not one of the “exceedingly rare” terms of imprisonment pr...
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Rigoberto Castellanos-Gareia was convicted of entering the United States after having been deported. 8 U.S.C. § 1326. He was given an enhanced sentence because he had committed an aggravated felony before his deportation. 8 U.S.C. § 1326(b). He appeals his conviction on the theory that the government did not prove that he was free from official restraint and, therefore, did not prove that he had ...
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Plaintiffs appeal the district court’s decision that Nevada rather than California law should be applied to a claim that usurious interest rates were charged on six loans made by defendants, as well as to a conversion claim arising out of the application of a payment on one loan to an outstanding balance on another loan. Applying Nevada law, the district court found that the interest rates were...
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113 Cal.Rptr.2d 357 (2001) 93 Cal.App.4th 691 David MELLINGER et al., Plaintiffs and Appellants, v. TICOR TITLE INSURANCE COMPANY OF CALIFORNIA, Defendant and Respondent. No. A092663. Court of Appeal, First District, Division Four. November 2, 2001. Rehearing Denied November 28, 2001. Review Denied February 13, 2002. *358 Law Offices of Robert J. Kahn, Robert J. Kahn, San Ramon, for Appellants. M...
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Opinion Diana C. Blake (plaintiff) worked for Gordon Ecker Productions, Inc. After allegedly suffering sexual harassment, she left and sued *733 the company and various individuals with whom she had worked (defendants), all of whom she claimed were responsible for such harassment. 1 Defendants moved to compel arbitration, their motion was granted, and plaintiff’s c...
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Opinion Plaintiffs David and Erma Wright appeal from the judgment in favor of the City of Los Angeles, acting by and through the Los Angeles Department of Water and Power (City), entered after its demurrer was sustained without leave to amend by the trial court. 1 Procedural Background and Facts “Because this is an appeal of a judgment of dismissal entered after the sust...
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113 Cal. Rptr. 2d 70 (2001) 26 Cal. 4th 1142 33 P.3d 487 Peter VU, Plaintiff and Appellant, v. PRUDENTIAL PROPERTY & CASUALTY INSURANCE COMPANY, Defendant and Respondent. No. S078271. Supreme Court of California. November 5, 2001. *72 Gruber & Kantor, Glenn R. Kantor, Daniel S. Gruber, Encino, Lisa S. Kantor, Northridge, and Sara Smith Ray, for Plaintiff and Appellant. Bill Lockyer, Attor...
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269 B.R. 413 (2001) In re Gregory Dewitt CANTRELL, Debtor. Gregory Dewitt Cantrell, Appellant, v. Cal-Micro, Inc.; Cal-Micro, Inc. Employee Stock Option Plan; The Pauline Countryman 1990 Trust, Appellees. BAP No. NC-01-1114-RRyK. Bankruptcy No. 99-49461-TS. Adversary No. 00-4136-AT. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted September 21, 2001. Filed Octob...
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OPINION After LPM Corporation, dba La Jolla Patio & Mattress (“Debtor”), filed a chapter 11 1 petition, Debtor failed to make timely payments of postpetition rent. Later, the bankruptcy court deemed Debtor’s lease with Kir Temecula L.P. (“Kir Teme-cula”) rejected and ordered Debtor to (1) surrender the leased premises and (2) pay Kir Temecula $43,529.08 within two weeks (the “R...
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Plaintiff-appellant Lawrence Hamilton appeals the district court’s grant of summary judgment for Defendant-appellee State Farm Fire and Casualty Company on Hamilton’s bad faith and breach of contract claims. We hold that Hamilton is judicially estopped from asserting these claims, and affirm. FACTS This action arises out of a claim that Hamilton filed under his State Farm homeowne...
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ORDER AND AMENDED OPINION ORDER Appellee’s petition for rehearing filed on June 25, 2001, is hereby granted without further oral argument. Judge O’Scannlain and Judge Fletcher have voted to deny Appellee’s petition for rehearing en banc. Judge Kelleher so recommends. The amended opinion is filed herewith. OPINION We have before us the question of whether the district court ...
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Opinion Defendant Stephen Richard Bianco was granted probation subject to certain conditions. On appeal, defendant claims a probation condition prohibiting him from using or possessing marijuana impinges on his right to the medical use of marijuana under state law. (Health & Saf. Code, § 11362.5.)1 We conclude that the trial court acted within its traditional discretion in imposing the probation ...
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Opinion Defendant homeowners association appeals from a trial court order granting plaintiffs’ request for attorney fees pursuant to Civil Code section 1717. 1 The case presents for decision the interesting question of whether section 1717, subdivision (b)(2) precludes any award of attorney fees to the prevailing party when the parties sign a settlement agreement which provid...
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113 Cal.Rptr.2d 453 (2001) 93 Cal.App.4th 817 Mark POLLOCK, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent; Northwestern Mutual Life Insurance Company, Real Party in Interest. No. B150627. Court of Appeal, Second District, Division One. November 6, 2001. *454 Cheong, Denove, Rowell, Antablin & Bennett, Wilkie Cheong and Mary L. Wachsmith, Glendale, for Petitioner. Cotkin,...
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Opinion Juvenile offender challenges two conditions of probation. Conceding that he made no objection to them in the juvenile court, he contends that the issue is not waived, invoking our opinion in In re Tanya B. (1996) 43 Cal.App.4th 1 [50 Cal.Rptr.2d 576]. We reexamine and overrule Tanya B., but nevertheless conclude that there has been no waiver under the circumstances of this case. Background...
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113 Cal.Rptr.2d 437 (2001) 93 Cal.App.4th 757 The PEOPLE, Plaintiff and Respondent, v. Moises ACEVEDO, Defendant and Appellant. No. F034485. Court of Appeal, Fifth District. November 6, 2001. *438 Marilyn Drath, San Rafael, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson,...
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This is an appeal of a $5 billion punitive damages award arising out of the Exxon Valdez oil spill. This is not a case about befouling the environment. This is a case about commercial fishing. The jury was specifically instructed that it could not award damages for environmental harm. The reason is that under a stipulation with the United States and Alaska, Exxon had already been punished for envi...
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C. A. 4th Cir. Motion of respondent for leave to *1016proceed in forma pauperis granted. Certiorari granted....
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C. A. Fed. Cir. Certiorari granted limited to Questions 1 and 3 presented by the petition....
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*849Opinion Plaintiffs Donald J. and Helen Flores, husband and wife, are senior citizens who obtained a reverse mortgage on their home from defendant Transamerica HomeFirst, Inc. (HomeFirst). After plaintiffs filed suit against HomeFirst for unfair business practices and other tortious conduct, HomeFirst petitioned to compel arbitration pursuant to arbitration clauses contained in the loan agreem...
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Opinion Penal Code section 2933.1 imposes a 15 percent limitation on worktime custody credits for prisoners convicted of violent felonies “listed in Section 667.5.”1 Here, we decide that section 2933.1 incorporates subsequent amendments to section 667.5, not only the version in effect when section 2933.1 was enacted. Leodes Van Burén was convicted of second degree robbery. (§211.) He admitted a pr...
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Opinion Susan Jurcoane sought review of an order denying her marital privilege claim (Evid. Code, §§ 970-973) 1 and requiring her to testify at a preliminary hearing to be conducted to determine whether her husband, Josif Jurcoane, committed two 1984 murders. We stayed Susan’s participation in any preliminary hearing and issued an order to show cause. The issue is whether Susan may claim th...
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George Akootchook, Mary T. Akoot-chook, Daniel Akootchook, Sergie Alexan-deroff, and Adeline Jim (as heir of George Jim, Sr.), are five native Alaskans who challenge the Department of Interior’s decision denying their applications for land allotments under the Alaska Native Allotment Act. The Department concluded that the claims to allotments were not valid because, prior to withdrawal of the lan...
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271 F.3d 953 (9th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee,v.RUBEN ZUNO-ARCE, Defendant-Appellant. No. 98-56770D.C. No. CV-98-2930-ER UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed May 23, 2001Order Published November 8, 2001 Before: Browning, Goodwin, and Graber, Circuit Judges. ORDER 1 This case is stayed pending iss...
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Opinion This is an appeal from a judgment for defendant in an action alleging violations of the Ralph M. Brown Act, Government Code section 54950 et seq. (hereafter the Brown Act). 1 The trial court concluded the first amended complaint failed to state a cause of action and granted defendant’s motion for summary judgment. Of particular concern to us is statutory language permitting a public a...
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272 F.3d 1207 (9th Cir. 2001) BENJAMIN K. ORIN, PLAINTIFF-APPELLANTv.RICHARD BARCLAY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL AND OFFICIAL CAPACITY; ROBERT WALLACE, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; ALAN HORNBERG, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; RICK MCCLUSKEY, AND HIS MARITAL COMMUNITY, IN HIS INDIVIDUAL CAPACITY; CITY OF BREMERTON, A MUNICIPAL...
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534 U.S. 1 (2001) UNITED STATES POSTAL SERVICE v. GREGORY No. 00-758. United States Supreme Court. Argued October 9, 2001. Decided November 13, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *2 *3 O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ.,joined. Thomas, J.,fileda concu...
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271 F.3d 825 (9th Cir. 2001) MARIN TUG & BARGE, INC., AS OWNER OF THE BARGE MARIN TENOR, PLAINTIFF,ANDJEFFREY L. MUDGETT; SUSAN MUDGETT, PLAINTIFFS-APPELLANTSv.WESTPORT PETROLEUM, INC.; SHELL OIL PRODUCTS COMPANY, DEFENDANTS-APPELLEES No. 99-17154 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted September 13, 2000Filed November 14, 2001 Jeff ...
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271 F.3d 835 (9th Cir. 2001) WASHINGTON LEGAL FOUNDATION; ALLEN D. BROWN; DENNIS H. DAUGS; GREG HAYES; L. DIAN MAXWELL, PLAINTIFFS-APPELLANTSv.LEGAL FOUNDATION OF WASHINGTON; KEVIN F. KELLY; BARBARA DURHAM, CHIEF JUSTICE; GERRY L. ALEXANDER, JUSTICE; JAMES M. DOLLIVER, JUSTICE; RICHARD P. GUY, JUSTICE; CHARLES WAYNE JOHNSON, JUSTICE; BARBARA A. MADSEN, JUSTICE; CHARLES Z. SMITH, JUSTICE; PHILI...
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Opinion Among the crimes of violence, illicit drugs, and illegal possession of weapons of which defendant James Patrick Taylor was convicted is the possession of a cane sword. (Pen. Code, § 12020, subd. (a); further section references are to the Penal Code unless otherwise specified.) In the published portion of this opinion, we agree with defendant that the trial court erred in failing to instru...
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Opinion The Department of Transportation (Caltrans) filed a complaint in eminent domain against Bertrand H. Woodson and Besse M. Woodson as trustees of the B. H. & B. M. Woodson Family Trust dated May 16, 1990 (Woodsons). The jury awarded the Woodsons $1,876,750 as just compensation for their property. This figure exceeded Caltrans’s final offer by $476,750. Nonetheless, the Woodsons’ motion for ...
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Opinion Issues on Appeal For over a century and a half, the judiciary has had the implied power to regulate the practice of law. (Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 336-337, and fn. 5 [178 Cal.Rptr. 801, 636 P.2d 1139], citing People v. Turner (1850) 1 Cal. 143, 150.) The judiciary traditionally has deferred to legislative enactment of “...
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Opinion Statement of the Case Mary E. Ingham filed a complaint against respondent Luxor Cab Company alleging wrongful ejectment and intentional and negligent infliction of emotional distress. The trial court granted respondent summary judgment and denied appellant’s motion for reconsideration. We reverse. Statement of Facts 1 Appellant is a 57-year-old woman who has...
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Opinion I. Introduction Respondent and plaintiff Gerald Mizel (Mizel) slipped and fell on a unidirectional access ramp. He suffered severe and permanent injuries. He sued appellants and defendants the City of Santa Monica (the City) and Shutters bn the Beach (Shutters). During trial, the trial court refused to permit defendants’ undisclosed expert to testify for impeachment purposes. (Code Ci...
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Opinion Defendant Fireside Thrift Co. (Fireside) appeals from an award of attorney fees in favor of plaintiffs Charles and Lisa Ritzenthaler, contending the Ritzenthalers waived their right to recover attorney fees when they accepted Fireside’s offer to compromise under Code of Civil Procedure section 998 (hereafter section 998). We agree with the trial court that the section 998 compromise agr...
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113 Cal.Rptr.2d 625 (2001) 93 Cal.App.4th 993 COMPUTERXPRESS, INC., Plaintiff and Respondent, v. Lee JACKSON et al., Defendants and Appellants. No. E027841. Court of Appeal, Fourth District, Division Two. November 15, 2001. *631 Law Offices of Yvonne M. Renfrew and Yvonne M. Renfrew, Santa Monica, for Defendants and Appellants. Best Best & Krieger, Douglas S. Phillips, G. Henry Welles and Jam...
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113 Cal.Rptr.2d 584 (2001) 93 Cal.App.4th 1022 The PEOPLE, Plaintiff and Appellant, v. Paul Mortimer WHITE, Defendant and Respondent. No. E029989. Court of Appeal, Fourth District, Division Two. November 15, 2001. John Roth, Public Defender and Michael Kennedy, Deputy Public Defender, for Defendant and Respondent. Dennis Stout, District Attorney, Mark Vos, Lead Deputy District Attorney and Lyvia ...
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Opinion I. Introduction This is an unusual dependency case in which there are appeals from opposite sides. Remberto, the father of five children with his now estranged wife, Kimberly, appeals from an order adjudicating him to have committed sexual abuse on his eldest daughter. Specifically, he was found to have fondled her breasts and asked her to take pictures of him nude. The five ...
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Opinion Irene Conlin Drapeau appeals from the trial court’s ruling that Louis Claude Drapeau’s “Early Retirement Benefit” (ERB) was his separate property.1 She contends the ERB was derived from a contractual right acquired during the parties’ marriage, and must therefore be characterized as community property. We agree, and reverse and remand on that issue. Jennifer also contends the trial court ...
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Opinion In these consolidated appeals, Levetus B., mother of the minor, Angel W., appeals from orders of the juvenile court denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, §§ 388, 366.26 [further undesignated statutory references are to this code].) In the published part of this opinion, we find the court erred in denying appellant’s request to repr...
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dissenting: The essential facts are not disputed. Plaintiff Richard Deorle was deranged and out of control when Deorle’s wife made her 911 call to the police. When Deorle saw his wife on the telephone calling for help, he told her that they would have to come kill him. After the first deputy sheriff (Mahon) arrived at the scene, Deorle was observed holding a two-by-six board with nails protruding ...
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Opinion In juvenile dependency proceedings, Mario A. and Kevin W. each petitioned the juvenile court to be declared the presumptive father of Kiana A. (May 1988). At the time of disposition, the juvenile court found in Kevin W.’s favor. Mario A. appeals. We affirm the juvenile court’s order. Factual and Procedural Background Kevin W. removed the minors Kiana A. and her half sibling, Mykea M. (June...
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*1103 Opinion Objector Catherine M. Osier appeals from an order allocating attorney fees as part of a minor’s compromise. She contends the trial court had no jurisdiction to divide attorney fees between her and claimant G. John Jansen. She also maintains the court’s allocation of fees was improper under a theory of quantum meruit in that claimant’s services were of little or no b...
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We agree with and adopt the well reasoned opinion of the district court. R.L. Inv. Ltd. Partners v. INS, 86 F.Supp.2d 1014 (D.Haw.2000). R.L. Investment Limited Partners argues for the first time on appeal that the INS’s new rules were impermissibly retroactive, that the Administrative Appeals Office’s (AAO) addition of new grounds for affirming the regional director’s denial of...
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113 Cal.Rptr.2d 690 (2001) 93 Cal.App.4th 1129 FLYING DUTCHMAN PARK, INC., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Respondent. No. A092504. Court of Appeal, First District, Division Two. November 20, 2001. As Modified December 25, 2001. Review Denied February 13, 2002. *692 Law Offices of J. Brian McCauley, J. Brian McCauley, for Appellant. Louise H. Renne, Cit...
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Opinion I. Introduction Defendant American Equity Insurance Company (American Equity) appeals from a judgment of the Alameda County Superior Court following the *1146 grant of summary judgment in favor of plaintiff Travelers Casualty and Surety Company (Travelers) on Travelers’ complaint for indemnity and contribution against American Equity. The trial court concluded th...
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113 Cal.Rptr.2d 700 (2001) 93 Cal.App.4th 1159 Jeffrey Peter LUSHBAUGH, Plaintiff and Appellant, v. HOME DEPOT U.S.A., INC., et al., Defendants and Respondents. No. B143326. Court of Appeal, Second District, Division Four. November 20, 2001. Gronemeier & Associates and Dale L. Gronemeier, South Pasadena, for Plaintiff and Appellant. Katten Muchin Zavis, Thomas J. Leanse, Stacey McKee Knight a...
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113 Cal.Rptr.2d 708 (2001) 93 Cal.App.4th 1171 The PEOPLE, Plaintiff and Respondent, v. Titus GRAVES, Defendant and Appellant. No. B146634. Court of Appeal, Second District, Division Four. November 20, 2001. Review Denied February 13, 2002. *709 H. Clay Jacke II, Los Angeles, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Acting Chief Assistant Attorney General, ...
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Opinion This case represents another example of what regrettably has become an all too familiar scenario, men engaging in reigns of *1124 terror against women who attempt to break off sexual relationships with them. It never ceases to amaze and sadden us that there are men out there who believe that violence can “win back her heart” or who simply relish in violently maintaining control over w...
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271 F.3d 891 (9th Cir. 2001) TARZA R. NELSON, PLAINTIFF-APPELLANT-CROSS-APPELLEE,v.BARBARA HEISS; K.W. PRUNTY, WARDEN; JAMES GOMEZ, DIRECTOR OF CORRECTIONS; DOES I THROUGH X, INCLUSIVE; SYLVIA H. GARCIA, DEFENDANTS-APPELLEES-CROSS-APPELLANTS,ANDDOES I THROUGH X, INCLUSIVE, DEFENDANT. Nos. 00-55523, 00-55567 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted October 17, ...
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ORDER The United States Internal Revenue Service moves this court to vacate its memorandum disposition and the underlying decisions of the district court and bankruptcy court, and to dismiss this appeal as moot. We grant the motion. 1 *900 I. The issue on appeal in this case was whether the Pattullos were eligible for Chapter 13 bankruptcy relief. Their eligibility turned on whether the...
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Rudy A. Ortiz and Rudy A. Ortiz & Associates, P.C., a Virginia corporation,1 appeal the district court’s order denying their motion to set aside the entry of default and to enlarge time to answer. We affirm. BACKGROUND Speiser, Krause & Madole, P.C., a California law firm, entered into an agreement with Ortiz, an attorney, for the purpose of dividing the legal representation responsibilities arisi...
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Opinion In a joint trial defendant Michael Delano Adams was found guilty of murder in the second degree and defendant Byron Jae Peterson was found guilty of involuntary manslaughter. In addition it was found true both men proximately caused the death of a senior citizen within the meaning of Penal Code2 section 368, subdivision (b)(3)(A). Both were sentenced to prison. Adams and Peterson appeal, a...
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114 Cal.Rptr.2d 37 (2001) 93 Cal.App.4th 1229 Marion Reynolds STOGNER, Petitioner, v. The SUPERIOR COURT of Contra Costa County, Respondent; The People, Real Party in Interest. No. A094828. Court of Appeal, First District, Division Five. November 21, 2001. Rehearing Denied December 17, 2001. Review Denied February 27, 2002. *39 William W. Veale, Contra Costa County Alternate Public Defender, Robe...
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 1243 Appellant, Randy Alan Valentine (Valentine) was convicted following jury trial of 21 counts1 of sex offenses against two young victims, N.C. and V. R. Valentine was thereafter sentenced to a total term of 81 years and four months in state prison and given...
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*1259Opinion Introduction Appellant Jason Viramontes challenges his murder and attempted murder convictions on the ground the trial court erred in refusing to instruct on imperfect self-defense. We conclude the evidence supported an instruction on imperfect self-defense and the trial court erred in failing to so instruct. Given the state of the evidence at trial, the error was not harmless. Backgr...
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Opinion Chanh Minh Dang was convicted by jury verdict of 16 counts, including residential burglary, false imprisonment, assault with a firearm or deadly weapon, and dissuading a witness by force or threat. In the published portion of this opinion, we reject appellant’s argument that the *1295 trial court erred in permitting his former attorney to testify about appellant’s thr...
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*1305 Opinion This is an appeal from an order of dismissal following the grant of respondent Joe Titzer’s motion to quash service of process on a complaint filed by appellant Nam Tai Electronics, Inc. We affirm. Factual and Procedural Background The essential facts are not in dispute. Appellant is a consumer electronic products manufacturer incorporated under the laws o...
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271 F.3d 910 (9th Cir. 2001) CABAZON BAND OF MISSION INDIANS; PAUL D. HARE, Plaintiffs-Appellants,v.LARRY D. SMITH, Individually and in his capacity as Sheriff of Riverside County; RONALD F. DYE, Individually and in his capacity as Captain, Indio Station, Riverside County Sheriff's Department; COUNTY OF RIVERSIDE, Defendants-Appellees. No. 99-55229 UNITED STATES COURT OF APPEALS FOR TH...
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Opinion by Judge TASHIMA; Dissent by Judge GRABER. Plaintiff-Appellant Deborah Anne Wells appeals from the order of the district court granting summary judgment in favor of Defendant-Appellee Clackamas Gastroen-terology Associates, P.C. (Clackamas) on her claim under the Americans With Disabilities Act of 1990 (ADA). The district court held that Clackamas was not an “employer,” and therefore not ...
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ORDER AND DISSENT ORDER The majority opinion filed November 2, 2000, and appearing at 231 F.3d 488 (9th Cir.2000), is amended by attaching Judge Rymer’s dissent which was inadvertently omitted when the majority opinion was sent for filing....
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271 F.3d 1169 (9th Cir. 2001) TITO IMER ALVARENGA-VILLALOBOS, PETITIONER-APPELLANT,v.JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES; CHARLES H. DEMORE, DISTRICT DIRECTOR, U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS-APPELLEES. No. 00-17525 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submitted* November 5, 2001Filed November 26, 2001 Frank P. Sp...
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We granted certiorari to review for a second time whether the Court of Appeals was correct when it concluded that the Department of Transportation’s (DOT’s) Disadvantaged Business Enterprise (DBE) program is consistent with the constitutional guaranty of equal protection. But upon full briefing and oral argument we find that the current posture of this case prevents review of that important quest...
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113 Cal.Rptr.2d 793 (2001) 93 Cal.App.4th 1323 Richa VAHLE et al., Plaintiffs and Appellants, v. Jill E. BARWICK, Defendant and Respondent. No. A093671. Court of Appeal, First District, Division Four. November 27, 2001. *794 Perry, Johnson, Murray, Anderson & Miller, Michael G. Miller, Santa Rosa, Jessica R. Flores, for Appellants. Law Offices of Barwick and Gill and Thomas B. Gill, San Franc...
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113 Cal.Rptr.2d 800 (2001) 93 Cal.App.4th 1315 Gary PROVENZANO, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. No. D036898. Court of Appeal, Fourth District, Division One. November 27, 2001. Gary Provenzano, in pro. per., for Plaintiff and Appellant. Bill Lockyer, Attorney General, Dennis W. Dawson and Kathryn M. Megli, Deputies Attorney General, for Defendant...
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Opinion Hundreds of workers at Coastal Berry Company believed their employer was pressuring them to accept the United Farm Workers union (UFW). They reacted by engaging in a protest and work stoppage, after which Coastal Berry discharged or refused to rehire 12 of them, including the 7 real parties in interest. The Agricultural Labor Relations Board (ALRB or Board) found that these termin...
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Jeffrey Timothy Landrigan was convicted of the murder of Chester Dean Dyer in the state of Arizona and was sentenced to death. His conviction was affirmed by the Supreme Court of Arizona on direct review, his state petition for post-conviction relief was denied by the state courts, and his petition for habeas corpus under 28 U.S.C. § 2254 was denied by the district court. He appealed and his pr...
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Plaintiff-Appellant Norman Hutton (“Hutton”) sued his former employer, De-fendanb-Appellee Elf Atochem North America, Inc. (“Elf’), for disability discrimination under Title I of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-12117 (1995), and Oregon’s disability discrimination law, Or.Rev. Stat. §§ 659.405, 659.436 (1999), in state court. The case was removed to federa...
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Rossitza Koleva Popova (“Popova”), a Bulgarian native and citizen, petitioned for review of the Board of Immigration Appeals’ (“BIA’s”) decision to deny her request for asylum and withholding of deportation. The BIA recognized that Popova suffered “reprehensible” treatment in Bulgaria, but denied Popova’s petition because she failed to establish that this treatment was “on account of’ her polit...
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Opinion Harry N. (the Minor), bom mid-January 1999, was declared a dependent of the juvenile court soon after his birth. He was bom with symptoms of drug withdrawal; both parents had histories of drug abuse, and his father had a history of arrests and convictions for violent offenses. He is currently in the care of respondents, his foster parents, with whom he was placed virtually at birth and wh...
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Opinion Introduction After 17 years of marriage, appellant Jenness Brewer (Brewer) and respondent Ovidio Federici (Federici) entered into a marital settlement agreement and stipulated to a judgment of dissolution based thereon. Subsequently, based upon mistake, Federici filed a motion to set aside the judgment and a motion to set aside the marital settlement agreement. Brewer appeals...
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113 Cal.Rptr.2d 804 (2001) 93 Cal.App.4th 1350 The PEOPLE, Plaintiff and Respondent, v. ROBERTO v. Defendant and Appellant. No. B142127. Court of Appeal, Second District, Division Three. November 28, 2001. *807 Randy Short, under appointment by the Court of Appeal, Torrance, for Defendant and Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Carol Wen...
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Opinion In this case we hold the juvenile court erred in refusing to hear live witness testimony at the hearing on appellant’s petition for modification pursuant to Welfare and Institutions Code section 388,1 where the declaration testimony was in conflict and the declarants’ credibility was at issue. *1402Facts and Proceedings Below Appellant Ajah B. (mother) gave birth to Clifton V. in January ...
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Opinion Civil Code section 47 provides generally that statements made in the course of an official proceeding are absolutely privileged. Those statements therefore cannot serve as a basis for civil liability. Civil Code section 47.5, however, creates an exception, allowing a peace officer to bring a defamation action against an individual who knowingly and maliciously files a false compla...
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Sanko Steamship Co. appeals the district court’s dismissal for lack of jurisdiction in a published order, 2000 A.M.C. 83 (N.D.Cal.1999), of its claim that the United States of America breached a duty to warn of a shoal in the Sacramento Deepwater Ship Channel. In determining that the United States was immune under the Flood Control Act, 33 U.S.C. § 702c, the district court relied on the “wholly u...
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Joseph Murl Bennett (“Bennett”) appeals the district court’s order adopting the Magistrate Judge’s Report and Recommendation denying his Petition for Writ of Habeas Corpus on the state procedural ground of untimeliness. We must decide whether the district court erred in concluding that the California Supreme Court’s denial of Bennett’s petition “on the merits and for lack of diligence” constitute...
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In this appeal, we consider whether the district court properly dismissed for lack of jurisdiction a petition for habeas corpus seeking review of a final removal order. We conclude that, under the circumstances presented by this case, transfer to the Court of Appeals is appropriate under 28 U.S.C. § 1631. After consideration on the merits, we deny the petition for review. I Abel Chave...
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Opinion I. Introduction This matter arises out of a petition for writ of mandate filed by respondent Robert E. Morris, M.D., a board-certified physician in pediatrics and adolescent medicine, against appellant Jerry L. Harper, then Acting Director of the California Youth Authority (CYA). Morris’s petition sought mandamus relief to require Harper to comply with state law by obtai...
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Opinion Robert Brown (Brown) appeals from a judgment of dismissal entered after the trial court sustained a demurrer to his complaint without leave to amend. Brown sued Robert S. Kennard (Kennard) for abuse of process after Kennard enforced a purported money judgment by levying on Brown’s *43deposit account pursuant to a writ of execution. The purported judgment was entered against Robert Womack ...
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Francisco Pacheco-Camacho was an exemplary prisoner. Serving his sentence of a year and a day, he earned the maximum number of good time credits permissible under federal law. Pacheco says that number is fifty-four days, but Bureau of Prisons (BOP) regulations allow him only forty-seven. This appeal is about the disputed seven days. 1 I A federal prisoner may receive “up to fi...
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Opinion Defendant Robert Clarence Taylor appeals from a judgment of the Orange County Superior Court imposing the death penalty following his conviction of first degree murder (Pen. Code, § 187),1 attempted murder (§§ 664, 187), burglary (§ 459), and two counts of robbery (§ 211), accompanied by a special circumstance finding that he committed the murder while engaged in the commission of a burgl...
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*67Opinion John Roe filed a complaint claiming the Office of Real Estate Appraisers violated a confidentiality clause in the stipulation by which an administrative disciplinary action against him was settled. The trial court sustained respondents’ demurrer without leave to amend. Appellant contends the trial court abused its discretion because all his causes of action showed entitlement to relief...
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Opinion We are asked to decide whether Sergeant Robert Smith is entitled to arbitrate the decision of the Los Angeles Police Department to transfer him to a different assignment with the reduced pay applicable to that assignment. Appellant argues the issue is arbitrable because it *79 constitutes a downgrade in pay. Respondents argue it is not because transfers are reviewable...
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C. A. 8th Cir. Certiorari granted limited to Question 1 presented by the petition....
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272 F.3d 1133 (9th Cir. 2001) ESSIC FAIL, PETITIONER-APPELLANT,v.SUZANNE HUBBARD, WARDEN, RESPONDENT-APPELLEE. No. 99-15548 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Submission Deferred February 16, 2001Resubmitted for Decision July 10, 2001Filed December 3, 2001 Matthew C. Bradford, Downey, Brand, Seymour & Rohwer, LLP, Sacramento, California, for the pet...
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272 F.3d 1136 (9th Cir. 2001) BRADLEY BERGENE, HUSBAND; ELIZABETH BERGENE, WIFE, PLAINTIFFS-APPELLANTS,v.SALT RIVER PROJECT AGRICULTURAL IMPROVEMENT AND POWER DISTRICT, AN AGRICULTURAL IMPROVEMENT DISTRICT CREATED PURSUANT TO THE LAWS OF THE STATE OF ARIZONA, DEFENDANT-APPELLEE. No. 99-17205 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 15, 2001...
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Opinion An insurer refused to indemnify its insured for the settlement of an action alleging that the insured engaged in the market manipulation of *106 stock in violation of Corporations Code sections 25400 and 25500. 1 We hold that liability under section 25500 requires a “wilful act” within the meaning of Insurance Code section 533, which precludes coverage unde...
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Opinion Summary This case presents the question whether an insurer, Golden Eagle Insurance Corporation, had a duty to defend its insureds, Rocky Cola Café, Inc., and several of its employees, in a lawsuit brought by Krista Boilman, a waitress formerly employed by Rocky Cola Café. Boilman’s suit included claims for sexual harassment and defamation, among other causes of action. The in...
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In this appeal we consider, inter alia, whether a brief hiatus in otherwise continuous observation of a deported alien reentering the country is sufficient to establish that the alien was free from official restraint. Under the circumstances presented by this case, we conclude that sufficient evidence exists to support the defendant’s conviction for being a deported alien found in the United St...
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273 F.3d 843 (9th Cir. 2001) WILLIAM GERBER, Plaintiff-Appellant,v.RODERICK HICKMAN, Warden, Defendant-Appellee, No. 00-16494D.C. No. CV-99-01315-FCD UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed December 4, 2001 Before: MARY M. SCHROEDER, Chief Judge. ORDER 1 Upon the vote of a majority of nonrecused regular active judges of this c...
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Opinion Plaintiff California Medical Association, Inc. (CMA) appeals a judgment dismissing this lawsuit after the court sustained without leave to amend the demurrer of defendants Aetna U.S. Healthcare of California, Inc., et al. 1 to CMA’s second amended complaint. CMA contends the court erred in sustaining defendants’ demurrers to CMA’s second amended complaint’s claim for th...
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Overview This appeal presents the question of how a professional employed in the course of a Chapter 11 bankruptcy proceeding can be assured that its fees will be reviewed under the standards of 11 U.S.C. § 328, rather than § 330. Section 328(a) permits a professional to have the terms and conditions of its employment pre-approved by the bankruptcy court, such that the bankruptcy court may...
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Due to some creative lawyering, this seemingly run-of-the-mill alien smuggling case requires us to confront a melange of novel legal issues. A jury convicted Defendant-Appellant Victor Ramirez-Martinez (“Ramirez”) of two counts of attempting to transport and transporting undocumented aliens, in violation of 8 U.S.C § 1324(a)(1)(A)(ii) (2000), and one count of aiding and abetting bringing t...
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Abdul Hakeem, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum and withholding of removal. I Abdul Hakeem, a native and citizen of Pakistan, first entered the United States *814 in 1984. In 1993, he returned to Pakistan...
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273 F.3d 817 (9th Cir. 2001) TERESA TWOHEY, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF WILLIAM R. TWOHEY, DECEASED, INDIVIDUALLY AND ON BEHALF OF ALL PERSONS SIMILARLY SITUATED, PLAINTIFF-APPELLANT,v.LINCOLN NATIONAL LIFE INSURANCE COMPANY, DEFENDANT-APPELLEE. No. 00-16514 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 6, 2001Dece...
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272 F.3d 1176 (9th Cir. 2001) OSCAR SOCOP-GONZALEZ, PETITIONER,v.IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT No. 98-70782 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted February 7, 2000Opinion Filed March 27, 2000Rehearing En Banc Granted September 29, 2000Argued and Submitted December 20, 2000Filed December 5, 2001 [Copyrighted Material...
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ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING The opinion filed September 14, 2001 [266 F.3d 993], is amended as follows: At slip op. 13284, line 14 [266 F.3d at 1010], insert footnote number 9 after “... opinion.” 9 Because the district court’s grant of summary judgment on Jinro’s fraud claim expressly assumed that Jinro’s “claims all rest on proof that the parties intended to be boun...
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234 F.3d 415 (9th Cir. 2000) TRUSTEES OF THE DIRECTORS GUILD OF AMERICA-PRODUCER PENSION BENEFITS PLANS, a collectively bargained, joint-trusteed labor-management trust, Plaintiff-Appellee,v.SUZANNE R. TISE, an individual, Defendant-Appellee,CYBELE TISE-MYERS, an individual; CHLOE TISE-MYERS, an individual, Defendants,andYVONNE CURRY, an individual, Defendant-Appellant.TRUSTEES OF THE DIRECTOR...
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273 F.3d 916 (9th Cir. 2001) MARIO RICHARDS-DIAZ, PETITIONER-APPELLANT,v.ADELE J. FASANO, DISTRICT DIRECTOR, RESPONDENT-APPELLEE. No. 99-56530D.C. No. 99-CV-327 BTM (A35 001 128) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Filed December 6, 2001 On Remand From the United States Supreme CourtBefore: Boochever, Tashima, and Richard C. Tallman, Circuit Judges. ...
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Opinion Plaintiff and appellant minor Leana Maria Sambrano, by her guardian ad litem Art Sambrano, et al., sued defendant and respondent City of San Diego (the City) for personal injuries suffered when she climbed into and was burned in a fire ring containing sand-covered hot coals at a beach park owned and operated by the City. In addition, Leana’s relatives (mother and sisters) brought ...
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Opinion At issue in this action is the applicability of Corporations Code 1 sections 25400 and 25500 to defendants who did not both 1) sell and/or offer to sell, or buy and/or offer to buy securities, and 2) make misleading statements for the purpose of inducing the purchase or sale of a security. We hold that a defendant must have engaged in both activities in order to be liab...
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273 F.3d 826 (9th Cir. 2001) BRUCE WAYNE MORRIS, PETITIONER-APPELLANT,v.JEANNE WOODFORD, ACTING WARDEN CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE.BRUCE WAYNE MORRIS, PETITIONER,v.UNITED STATES DISTRICT COURT, EASTERN DISTRICT OF CALIFORNIA (SACRAMENTO), RESPONDENT,JEANNE WOODFORD, WARDEN, SAN QUENTIN PRISON, REAL PARTY IN INTEREST. No. 99-99028, 01-71622 UNITED STATES ...
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Jose Mendez-Casillas, a citizen of Mexico, stands convicted of having illegally reentered the United States following deportation, pursuant to 8 U.S.C. § 1326. He appeals his conviction on the ground that a clerical error rendered the warrant accompanying his prior deportation defective. Mendez Casillas therefore contends that he was never previously arrested or deported, as required for the gove...
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Opinion Daniel LaPlante appeals from a summary judgment rendered against him and in favor of defendants Wellcraft Marine Corp., Genmar Holdings, Inc., and Galaxie Miller’s Landing, Inc., on LaPlante’s complaint for negligence, strict liability and breach of warranty. His claims arose from serious personal injuries he suffered in a boating accident. The trial court granted summary judgment...
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534 U.S. 124 (2001) J. E. M. AG SUPPLY, INC., dba FARM ADVANTAGE, INC., et al. v. PIONEER HI-BRED INTERNATIONAL, INC. No. 99-1996. United States Supreme Court. Argued October 3, 2001. Decided December 10, 2001. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *125 *126 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, Souter, a...
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Opinion Sandra Bonifield, individually and as the guardian of Jessica Rose Saunders-Krueger, and the Estate of Kimberly Anne Saunders (collectively plaintiffs) brought this wrongful death action after dismissing their related federal action without prejudice. 1 Defendants demurred on the ground that the state action was untimely. The superior court sustained the demurrer without leave to amen...
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273 F.3d 1220 (9th Cir. 2001) ROSALBA AGUIRRE-CERVANTES AKA MARIA ESPERANZA CASTILLO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent, No. 99-70861I&NS No. Ann-vfb-ssq UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FILED DEC. 7, 2001 BEFORE: SCHROEDER, Chief Judge. ORDER 1 Pursuant to the parties' stipulation, the opin...
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*420 Opinion The Lake County District Attorney Family Support Division (county) appeals in these three consolidated cases after the Lake County Child Support Commissioner (trial court) entered orders denying the county’s requests to enter default child support judgments against Christopher Falla, Douglas R. Hill and Harry R. Abram (defendants), pursuant to Family Code section 174...
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Opinion By an order separately filed, we consolidate the appeals from two related actions heard in the Superior Courts of Alameda and San Francisco Counties. In part I of this decision, we consider plaintiffs’ 1 appeal from a judgment entered in the Alameda action, following the granting of a motion for summary judgment in favor of defendants Major League Baseball, Major League...
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Opinion Mario (plaintiff) and Janelle Solis sued Kirkwood Resort Company (defendant, the true name of which is Kirkwood Mountain Resort, LLC), after a ski accident. The trial court granted defendant’s motion for summary judgment, finding plaintiff signed a release of negligence liability which embraced this accident, and that defendant owed no duty to plaintiff under the primary assumptio...
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Opinion Facts Marci S., a married woman, engaged in a brief sexual relationship with Mark L. in late December 2000, during which they conceived a child. A petition to dissolve Marci’s marriage had been filed in January 1997, but she had not obtained a final judgment of dissolution. The child, named Alexander, was born in September 2000, and Marci immediately relinquished *433him for adoption to J...
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*318 Opinion The Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) is a comprehensive statutory scheme that regulates the use, sales and labeling of all pesticides sold in the United States. (7 U.S.C. § 136 et seq.) FIFRA expressly prohibits states from imposing “any requirements for labeling or packaging in addition to or different from those required” under the act. (7 U.S.C. § 13...
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ORDER The Petition for Panel Rehearing or Clarification is DENIED. The opinion filed August 29, 2001, is hereby AMENDED as follows: 1. On page 11797 [263 F.3d 926, 934] of the slip opinion, the phrase “Lacking ‘force of law,’ ” is deleted, and the word “interpretations” is capitalized. After “SIP....”. and before “Interpretations” the following text and footnote is inserted: “Th...
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I. Glenn K. Jackson, Inc., d.b.a. Jackson & Donahue, and Glenn K. Jackson individually (collectively “J & D”) appeal the district court’s granting of summary judgment in favor of Stuart, Maue, Mitchell & James (“Stuart Maue”) in J & D’s diversity action seeking relief under California law. The action arises out of an audit conducted by Stuart Maue of J & D’s billing statements sent to Gold...
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Rolen applied for Social Security disability benefits in 1991, claiming that he had been disabled since 1989. The Administrative Law Judge dismissed his application on procedural grounds. A notice accompanying the dismissal order advised Rolen that “[i]f you disagree with the enclosed order of dismissal, you have the right to appeal.” The notice did not advise Rolen that he could file a new app...
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Juan Gonzalez-Torres (“Torres”) was convicted by a jury of entering the United States in violation of 8 U.S.C. § 1325, being a deported alien “found in” the United States in violation of 8 U.S.C. § 1326, and smuggling aliens in violation of 8 U.S.C. § 1324(a)(2)(B)(iii). The district court erred by finding Torres was not under official restraint. Accordingly, we reverse the convictions based on...
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William Hibbs brought suit in district court against the Nevada Department of Human Resources, its director, Charlotte Crawford, and Hibbs’ supervisor, Nikki Firpo (collectively “Defendants”), for violations of the Family and Medical Leave Act of 1993 ( “FMLA”), 29 U.S.C. §§ 2601-2654, and 42 U.S.C. § 1983 and the Fourteenth Amendment, as well as various state-law claims. He timely appeals the ...
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Opinion This appeal raises an unsettled question under the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.): Does the ICPC prevent a California court from ordering visitation between a dependent child and his noncustodial parent where a previous ICPC evaluation found the parent’s home unsuitable for placement? Under the circumstances of this case, we conclude it does...
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Opinion I. Introduction In the decision of In re Michael (1945) 326 U.S. 224, 227 [66 S.Ct. 78, 80, 90 L.Ed. 30], Associate Justice Hugo Black wrote: “All perjured relevant testimony is at war with justice . . . .” California has virtually surrendered in this war when it comes to perjury during depositions. As will be noted, we conclude that unless a deposition transcript ...
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Opinion Defendant was convicted by jury trial of violating the sex offender registration statute (Pen. Code, former § 290, subd. (f)) by failing to notify law enforcement that he had changed his residence address. The jury also found true allegations that defendant had suffered four prior convictions within the meaning of Penal Code sections 667, subdivisions (b) to (i) and 1170.12. Defen...
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Dissenting: I believe that this case is controlled by United States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir.2000). As the majority opinion notes, Herrera fled into an area from which there was no escape. See supra page 1216. He was undisputably “de*1220prived of [his] liberty and prevented from going at large within the United States.” United States v. Pacheco-Medina, at 1164 (quoting Ex parte C...
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273 F.3d 1204 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEEv.RODNEY BLACKMON, AKA SEAL A, DEFENDANT-APPELLANT No. 99-50534 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted October 12, 2000Filed December 12, 2001 Richard M. Steingard; Los Angeles, California, for defendant-appellant Rodney Blackmon. Michael Terrell, Assistant ...
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Opinion Edward Ramirez pleaded guilty to charges of robbery and second degree murder, and is serving a term of 15 years to life. The murder victim was an accomplice to the robberies, who died in an automobile accident during a high-speed chase by the police. Ramirez has been incarcerated since 1982. The Board of Prison Terms (the Board) denied his applications for a parole release date in...
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*523 Opinion Juvenile court dependent Kristine W. appeals the court’s order permitting the San Diego County Health and Human Services Agency (the Agency) to receive certain information from her therapist regarding her therapy. She contends the court was not authorized to disregard her invocation of the psychotherapist-patient privilege. We affirm. Background Kristine’s ...
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Opinion Larry and Marilyn Conway (collectively the Conways unless the context indicates otherwise) and United Business Ventures, Inc. (United), 1 appeal from an order denying their motion to vacate a default *543 judgment entered against them in favor of Henry A. and Lillian Ellard (the Ellards). The Conways argue the default judgment was void because they were not...
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Under the “prison mailbox rule” of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court. We consider how the rule applies if the petition is never received or filed by the court. Huizar is a California state prisoner convicted of fi...
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Valerie Jo Schwartz appeals the district court’s denial of her motion under 28 U.S.C. § 2255 to vacate, set aside, or correct her sentence. We hold that Schwartz’s § 2255 motion is barred by the statute of limitations, notwithstanding: (1) the possibility of a sentence reduction under Rule 35 of the Federal Rules of Crimi *1222 nal Procedure; and (2) her continuing obligation under a plea agree...
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Opinion by Judge GOULD; Dissent by Judge B. FLETCHER. ORDER The majority opinion filed June 15, 2001, is amended as follows: 1) Add the following sentence to the end of the third paragraph of section III. B. 4 (Superiority, Rule 23(b)(3)(D)): Of course, we do not suggest that the causation difficulties necessarily render class certification impossible. Judges O’Scannlain and Gould have voted to de...
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114 Cal. Rptr. 2d 459 (2001) 26 Cal. 4th 1185 36 P.3d 2 UTILITY COST MANAGEMENT, Plaintiff and Appellant, v. INDIAN WELLS VALLEY WATER DISTRICT, Defendant and Respondent. No. S091117. Supreme Court of California. December 17, 2001. *460 Paul G. Kerkorian, Fresno, for Plaintiff and Appellant. John L. Bukey, Corona, Richard L. Hamilton; Somach, Simmons & Dunn, Michael E. Vergara, Sacramento, an...
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Opinion Summary In the General Election held November 7, 2000, the voters of California passed Proposition 36, the Substance Abuse and Crime Prevention Act of 2000 (the Act or Proposition 36). The Act requires probation and drug treatment, not incarceration, for the commission of “nonviolent drug possession offenses”, i.e., possession, use, transportation of controlled substances and similar ...
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Opinion Defendants Alaska Insurance Company and its successor in interest New Hampshire Insurance Company (collectively New Hampshire) appeal a judgment requiring New Hampshire, as a primary insurer, to reimburse plaintiff United Services Automobile Association (USAA), as an excess insurer, the money USAA paid to settle a bad faith action brought against it by an injured third party claimant as...
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*661 Opinion Defendant Maciej Andrzej Madeyski purports to appeal from an order forfeiting certain items of computer-related equipment. 1 He contends Ms federal constitutional rigMs were abridged by the demal of his right to have appointed counsel, the denial of his right to a jury trial, and by failing to have the facts justifying forfeiture proved beyond a reasonable...
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273 F.3d 1229 (9th Cir. 2001) ARIZONA CATTLE GROWERS' ASSOCIATION, JEFF MENGES, PLAINTIFFS-APPELLEES-CROSS-APPELLANTS,v.UNITED STATES FISH AND WILDLIFE, BUREAU OF LAND MANAGEMENT, DEFENDANTS-APPELLANTS-CROSS-APPELLEES,ANDSOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY, DEFENDANT-INTERVENOR-APPELLANT. Nos. 99-16102, 99-16103, 00-15322 and 00-15511 UNITED STATES COURT OF APPEALS FOR THE NINTH ...
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Appellant Mario Portillo-Mendoza was arrested after illegally crossing the border near Yuma, Arizona. He was charged with illegally entering, attempting to enter, and being found in the United States after a prior deportation in violation of 8 U.S.C. § 1326(a). After a jury found him guilty, his sentence was enhanced from 18 to 84 months on the basis of his having previously committed “aggravated...
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275 F.3d 744 (9th Cir. 2001) RODRIGO GANDARELA, PETITIONER-APPELLANT,v.DAN JOHNSON, SUPERINTENDENT, SNAKE RIVER CORRECTIONAL FACILITY RESPONDENT-APPELLEE. No. 00-35596 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 6, 2001Filed December 18, 2001 1 NOTE: SEE ORDER AND AMENDED OPINON OF MARCH 11, 2002. ...
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Appellant, Thomas Pearson (“Pearson”), was convicted of violating criminal provi *1228 sions of the Clean Air Act (“CAA”), 42 U.S.C. §§ 7412(f)(4) and (h), and 7413(c)(1). Pearson appeals his conviction on several grounds. First, he contends the district court improperly instructed the jury regarding the elements of the charged offense. Next, Pearson asserts the district court proh...
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*698Opinion In this case, we will hold that General Order No. 55, adopted by the San Francisco Superior Court to help manage its complex asbestos litigation, does not violate California Rules of Court, rule 981.1, which preempts generally applicable local rules. I. Factual and Procedural Background By the early 1980’s, the complexity and volume of asbestos-related litigation in state and federal ...
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Opinion Plaintiffs Angelo Gouskos and Pete Gouskos sued defendants Aptos Village Garage, Inc. (Aptos), and Don Brownell for various causes of action arising from an automobile repair dispute. The trial court granted defendants’ motion for directed verdict as to the fifth cause of action (violation of the Rosenthal Fair Debt Collection Practices Act (Civ. Code, § 1788 et seq.) (Act)), ...
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Opinion Paul L. appeals a juvenile court order made at the six-month hearing denying him visitation with his son, Mark L. We affirm the order because the court’s finding that visitation would be detrimental to Mark at that time is supported by substantial evidence. However, we are persuaded by Paul’s contention that the court erred by determining at the six-month hearing that Mark’s invocation of ...
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Marvin L. Wiseman and William D. Mett (“Defendants”) were convicted in 1997 of embezzling money from a pension benefit plan governed by the Employee Retirement Income Security Act (ERISA). This court reversed their convictions on appeal and remanded for a new trial. United States v. Mett, 178 F.3d 1058 (9th Cir.1999). After the district court rejected Defendants’ proposed jury instructions, Def...
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Appellant-Petitioner David C. Smith (“Smith”) appeals the district court’s grant of Appellee-Respondent W.A. Duncan’s (the “Government’s”) motion to dismiss Smith’s federal petition for habeas corpus as untimely. When ruling on the motion, the district court was faced with an incomplete record. The facts, as they were presented to the district court, are recounted in the “Background” section of t...
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273 F.3d 1271 (9th Cir. 2001) WILLIAM CHARLES PAYTON, PETITIONER-APPELLEE,v.JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLANT.WILLIAM CHARLES PAYTON, PETITIONER-APPELLANT,v.JEANNE WOODFORD, ACTING WARDEN OF CALIFORNIA STATE PRISON AT SAN QUENTIN, RESPONDENT-APPELLEE. No. 00-99000, No. 00-99003 UNITED STATES COURT OF APPEALS FOR THE NINTH CIR...
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Daniel McGowan appeals his convictions for importation of marijuana in violation of 21 U.S.C. § 952 and § 960, and for possession of marijuana with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He argues, inter alia, that the district court erred in admitting expert testimony regarding the structure of drug trafficking organizations in a non-conspiracy importation case. Under the ...
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Domingo Alexander petitions for review of a decision of the Benefits Review Board (the BRB) of the Department of Labor. The question presented is whether settlements he made with others of his employers should be credited against the amount owed by the last responsible employer, Triple A Machine Shop (Triple A). Holding that denial of the credit is compelled by 33 U.S.C. § 903(e) of the Longsho...
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Opinion We granted review to decide under what circumstances, if any, a store owner may be liable for injuries to a business invitee from a dangerous condition on its premises where the evidence fails to show how long the dangerous condition existed prior to the injury. The cases require that an owner must have actual or constructive notice of the dangerous condition before incurring liability. (...
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Opinion Summary Subsequent to the expiration of a three-day notice to pay rent or quit, appellants, commercial tenants Sofa U Love and Ercicona Corporation, submitted a partial rent payment to respondent Woodman Partners, their landlord. Respondent accepted the payment and sent a letter within two days of receipt, informing appellants that it intended to proceed with the unlawful detainer act...
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274 F.3d 1262 (9th Cir. 2001) THE LINCOLN CLUB OF ORANGE COUNTY, A CALIFORNIA NON-PROFIT MUTUAL BENEFIT CORPORATION ON BEHALF OF ITSELF AND ITS MEMBERS; THE LINCOLN CLUB OF ORANGE COUNTY STATE PAC; THE LINCOLN CLUB OF ORANGE COUNTY INDEPENDENT EXPENDITURES PAC, PLAINTIFFS-APPELLANTS,v.CITY OF IRVINE, CALIFORNIA, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE. No. 00-56444 UNITED STATES CO...
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114 Cal.Rptr.2d 680 (2001) 94 Cal.App.4th 998 The PEOPLE, Plaintiff and Respondent, v. Felix D. HIGHTOWER, Defendant and Appellant. No. A081424. Court of Appeal, First District, Division Four. December 20, 2001. Review Denied March 20, 2002.[**] *681 David Y. Stanley, Truckee, for Appellant. *682 Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, ...
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Opinion Raymond Balikov appeals from judgment entered dismissing his complaint against Southern California Gas Company (the Gas Company), following the sustaining, without leave to amend, the demurrer of the Gas Company. Balikov contends the court erred, because Public Utilities Code section 799, subdivision (a)(4), does not apply and because Los Angeles Municipal Code section 21.1.5 does not p...
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Opinion Caught in a dispute reminiscent of a tennis match between the Los Angeles and San Luis Obispo Superior Courts, petitioner meritoriously contends that his petition for writ of habeas corpus should be adjudicated in Los Angeles. Game, set, and match; not to San Luis Obispo, but to petitioner and all inmates similarly situated who are entitled to timely decisions on petitions for writs of ...
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114 Cal.Rptr.2d 672 (2001) 94 Cal.App.4th 823 Crystal Lynn MORRIS, Plaintiff and Appellant, v. Michelle Ann BLANK, Defendant and Respondent. No. B147087. Court of Appeal, Second District, Division One. December 20, 2001. *673 Selman Breitman, Eldon S. Edson, Kelly M. Lynch, Los Angeles, and Lynette Klawon, for Plaintiff and Appellant. Calendo, Puckett, Sheedy & DiCorrado, Kim B. Puckett, Glen...
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114 Cal.Rptr.2d 575 (2001) 94 Cal.App.4th 797 George T. O'BYRNE et al., Plaintiffs and Appellants, v. SANTA MONICA-UCLA MEDICAL CENTER et al., Defendants and Respondents. No. B143702. Court of Appeal, Second District, Division One. December 20, 2001. *577 The Ronin Law Group and Kevin M. Clarke, Los Angeles, for Plaintiffs and Appellants. Ballard Rosenberg Golper & Savitt, Linda Miller Savitt...
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Opinion A jury convicted defendant Richard John Baldine of transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)) and possession of marijuana for sale (Health & Saf. Code, § 11359). In a bifurcated proceeding, the jury found true an attempted robbery strike allegation (Pen. Code, §§ 664/211, 667, subds. (b)-(i), 1170.12) and two prison term allegations (Pen. Code, § 667.5, s...
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Opinion Desert Healthcare District (Desert Healthcare) appeals from an order dismissing its second amended complaint following an order sustaining the demurrer of PacifiCare, FHP, Inc. (PacifiCare). Desert Healthcare alleges that PacifiCare (1) violated Health and Safety Code section 1371 of the Knox-Keene Health Care Service Plan Act of 1975 (Knox-Keene Act) (Health & Saf. Code, § 1340 et seq.);...
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In 1985, Kevin Cooper was convicted of murder in the deaths of Douglas and Peggy Ryen, their ten-year-old daughter Jessica, and an eleven-year-old friend of the Ryen family, Christopher Hughes, and of the attempted murder of the Ryens’ eight-year-old son Joshua, who survived the attack. The facts of the case are described in the opinion in our case No. 97-99030. Cooper filed his first federal h...
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Opinion I. Introduction In these original proceedings, we consider an issue of first impression arising from elder abuse litigation: whether the statute of limitations applicable to a civil action for damages against a health care provider convicted of felony elder abuse (Pen. Code, § 368) is Code of Civil Procedure section 340.5, which provides a maximum three-year limitations perio...
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114 Cal.Rptr.2d 733 (2001) 94 Cal.App.4th 944 The PEOPLE, Plaintiff and Respondent, v. Daniel George ZICHWIC, Defendant and Appellant. No. H021621. Court of Appeal, Sixth District. December 21, 2001. Review Denied March 27, 2002.[*] *736 Andrew Parnes, Attorney for Appellant. Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Atto...
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Opinion This case concerns the extent of insurance coverage provided under an “additional insured” endorsement to a commercial general liability policy. The trial court held the policy covers the additional insured for the factual circumstances presented here as constituting “liability arising out of’ the work of the named insured. At issue are (1) whether the notice of appeal was timely ...
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Opinion The False Claims Act (hereafter sometimes referred to as the Act) (Gov. Code, § 12650 et seq.) imposes treble damage liability on one who, among other things, “[k]nowingly presents or causes to be presented to an officer or employee of the state or of any political subdivision thereof, a false claim for payment or approval.” (Gov. Code, § 12651, subd. (a)(1).) Where the Attorney G...
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Opinion In this action by a mobile-home homeowners association against the owners of the mobilehome park, a jury awarded punitive damages in the amount of $6 million after the trial court instructed the jury that it was “an established fact” that defendants had violated Civil Code section 798.41, 1 causing actual damages of $36,401.85, which had already been paid. The trial cou...
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*983 Opinion I. Introduction The People petition for extraordinary relief from the orders of respondent court denying the People’s motions to quash the notices of deposition issued by real parties in interest Michael Thomas Cheek (Cheek) and Gregory Grant (Grant). The trial court’s orders allow the depositions of several Atascadero State Hospital physicians and psychologists...
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Opinion In the published portion of this opinion, we hold plaintiffs’ malicious prosecution cause of action was subject to a special motion to strike under California’s anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) In the unpublished portion of the opinion, we conclude plaintiffs met their burden to establish a probability they would prevail on ...
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*1026 Opinion At the conclusion of his second trial a jury found defendant Juan A. Merced guilty as charged of the attempted premeditated murder of a peace officer involving the personal use of a firearm (Pen. Code, §§ 187, 664, subd. (e), 12022.5, subd. (a)) and being a past-convicted felon in possession of a firearm (Pen. Code, § 12021, subd. (a)). After finding true allegation...
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274 F.3d 1297 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.DUANE A. WILLFONG, DEFENDANT-APPELLANT. No. 00-10227 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 16, 2001Filed Dec. 21, 2001 Kenneth M. Bareilles, Eureka, California, and Duane Willfong, Pro per, for the defendant-appellant. Miquel Rodriguez, Assistant U.S...
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ORDER AND AMENDED OPINION ORDER The opinion filed on August 27, 2001, slip op. 11597, and reported at 262 F.3d 963, is amended by adding a new footnote 3, at the end of the fourth sentence (first paragraph) of Part III.A, slip op. at 11610, 262 F.3d at 970, as follows: We need not decide whether good cause is required for submission of new evidence to the Appeals Council, as May...
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Order; Dissent by Judge Reinhardt ORDER Petitioner Anderson has filed with this Court a series of emergency motions asking to reopen this case and to rehear en banc certain claims, all of which relate to our recent opinion in Mayfield v. Wood-ford, 270 F.3d 915 (9th Cir.2001). Anderson asserts that our en banc court’s adverse treatment in Mayfield of the performance of Anderson’s trial attorney, D...
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*1113Opinion In this appeal, we consider whether Civil Code section 8461 immunity precludes suit by a child who suffered injuries when he attempted to retrieve his kite from an overhead power line. We determine the utility is immune from suit under these circumstances and none of the statutory exception applies. Further, we conclude Public Utilities Code section 2106 does not abrogate the immunit...
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Opinion These appeals involve a multifaceted legal controversy that arose after Australian John Ryan, in August 1997, came to America to repeat the 12th grade at Rancho Buena Vista High School (RBV) and to participate in its basketball and football programs, but was later declared ineligible to participate in extracurricular California Interscholastic Federation (GIF) athletics. After exh...
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Opinion California Interscholastic Federation (CIF), 1 CIF Executive Director John Hayes, California Interscholastic Federation-San Diego Section and CIF San Diego Section Commissioner Jan Jessop (collectively CIF-SDS) appeal a mandamus judgment directing CIF-SDS to vacate its internal affirmed as modified undue influence ruling arising from the athletic eligibility application...
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275 F.3d 769 (9th Cir. 2001) ROBERT FREDERICK GARCEAU, PETITIONER-APPELLANT,v.JEANNE WOODFORD, ACTING WARDEN OF SAN QUENTIN STATE PRISON, RESPONDENT-APPELLEE. No. 99-99022 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted May 17, 2001Filed Dec. 26, 2001 [Copyrighted Material Omitted] Lynne S. Coffin, San Francisco, California, and Denise Ken...
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275 F.3d 784 (9th Cir. 2001) UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,v.JAMES H. GALLAHER, JR., DEFENDANT-APPELLANT. No. 00-30068 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted July 10, 2001Filed Dec. 26, 2001 [Copyrighted Material Omitted] Kenneth K. Watts, Spokane, Washington, for the defendant-appellant. Joseph H. Harrington,...
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Lucas Automotive Engineering, Inc. (“Lucas Automotive”) appeals the district court’s grant of summary judgment to Coker Tire Company, Inc. (“Coker Tire”). We have jurisdiction pursuant to 28 U.S.C. § 1291. I. The following statement of facts is taken in part from this court’s decision in Lucas Auto. Eng’g, Inc. v. Bridgestone/Firestone, Inc., 140 F.3d 1228 (9th Cir.1998). Coker Tire and Luc...
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275 F.3d 797 (9th Cir. 2001) FRANK ATONIO; ALAN LEW; CURTIS LEW; JOAQUIN ARRUIZA; RANDY DEL FIERRO; CLARKE KIDO; LESTER KURAMOTO, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED; BARBARA VIERNES, AS ADMINISTRATRIX OF THE ESTATE OF GENE ALLEN VIERNES, PLAINTIFFS-APPELLANTS,v.WARDS COVE PACKING COMPANY, INC., A FOREIGN CORPORATION; BUMBLE BEE SEAFOODS, INC., A DOMESTIC CORPORATION; COL...
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Opinion Plaintiffs Deltakeeper, San Joaquin Audubon Society, California Sportfishing Protection Alliance, and the Sierra Club (collectively plaintiffs) appeal from an order granting a motion to dismiss the action for failure to join indispensable parties. (Code Civ. Proc., § 389, subd. (b).) 1 The named defendants, Oakdale Irrigation District (Oakdale), South San Joaquin Irri...
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Petitioner Barton Lee Murphy (Murphy) appeals from the district court’s denial of his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241. The petition was filed after he was admitted to the Bureau of Prison’s (BOP) drug treatment program but was later denied the opportunity to complete the program because he was deemed a flight risk based upon a prior escape conviction. This de...
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275 F.3d 751 (9th Cir. 2001) LYN EVERHART, PLAINTIFF-APPELLANT,v.ALLMERICA FINANCIAL LIFE INSURANCE COMPANY, DBA STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA, DEFENDANT-APPELLEE. No. 99-17094 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted March 14, 2001Filed Dec. 27, 2001 Charles J. Wisch, San Francisco, California, for the plaintiff-appellan...
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Opinion Appellant Kim Ostler seeks to collect past due child support from her former husband, respondent George Vroenen. The trial court found *1178she was estopped from collecting the portion of the arrearage that accumulated when she actively concealed the whereabouts of the parties’ children. We conclude the defense of estoppel based on concealment was not available in this case because the co...
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Opinion Appellant Steve Eng appeals his judgment of conviction following a no contest plea to possession for sale of heroin (Health & Saf. Code, § 11351) (count 1) and possession for sale of methamphetamine (Health & Saf. Code, § 11378) (count 2), with admitted allegations of two prior felony convictions for possession of dangerous drugs (Pen. Code, § 667.5, subd. (b); Health & Saf. Code,...
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I respectfully dissent. I Although I agree with my colleagues’ determination that parol evidence was admissible in determining whether Maria’s domestic partnership claim would be a contest within the meaning of the no contest clause in Viljo’s will, I do not adopt the majority’s narrow interpretation of the remedies available under the safe harbor provisions of Probate Code1 section 21320. As they...
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On Remand from United States Supreme Court ORDER The district court’s decision is AFFIRMED. TRW Inc. v. Andrews, — U.S.-, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001). ...
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*1145Opinion Robert V. Cross (husband) appeals from a judgment dissolving his marriage to Judith C. Cross (wife), and dividing their assets and obligations. On appeal, husband contends that the trial court erred in failing to (1) reimburse husband and/or the community for improvements made to wife’s separate property with husband’s separate property funds; (2) award husband a pro tanto interest i...
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Opinion Impco Technologies, Inc. (Impco) appeals from an order vacating a previous order that the matter should proceed to binding arbitration. Impco argues there was a stipulation signed by the attorneys after each received its client’s authorization. Respondent CPI Builders, Inc. (CPI) claims that it withdrew its consent to its attorney to enter into binding arbitration, and the court p...
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*1152 Opinion Intervener Crum & Forster appeals from a trial court’s order granting a motion to strike its complaint in intervention filed in an action against defendants Astron Computer Products and John Lee. Intervener contends the court abused its discretion. We agree and remand for further proceedings. Facts Plaintiff Mary Ellen Lohnes sued defendants for damages sh...
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275 F.3d 884 (9th Cir. 2001) MICHAEL BRADLEY, DBA CHEM-DRY OF CAMPBELL/SARATOGA; PATRICIA SMITH BRADLEY, DBA CHEM-DRY OF CAMPBELL/SARATOGA, PLAINTIFFS-APPELLEES,v.HARRIS RESEARCH, INC., A UTAH CORPORATION, DEFENDANT-APPELLANT. No. 00-16021 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted November 7, 2001Filed Dec. 28, 2001 Timothy C. Houpt, Salt ...
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This case requires us to decide whether the Shasta County Sheriffs Department, when investigating crime, acts on behalf of the state of California or on behalf of Shasta County. If the sheriff is a county actor, Shasta County may be subject to liability under 42 U.S.C. § 1983 and Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for the sheriffs c...
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Sebastian H. Jiminez appeals the dismissal with prejudice of his 28 U.S.C. § 2254 (1994 & Supp. II 1996) petition. Because Jiminez did not exhaust state remedies before filing his federal habeas petition, the district court granted Warden Bertram Rice’s motion to dismiss. We have jurisdiction pursuant to 28 U.S.C. § 2253 (Supp. II 1996), and we affirm. I Jiminez is serving ...
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Order; Concurrence by Judge O’SCANNLAIN; Dissent by Judge TROTT ORDER A sua sponte call for full court en banc rehearing was made by a member of the Court. The full court was advised of the call. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of full court en banc reconsideration. See Fed. R.App. P. 35; Ninth Cir. R. 35-3. The sua sponte call for full...
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