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All Reporters → daily-journal-dar → Volume 93

Opinions in daily-journal-dar Volume 93

Opinion We hold in this case that a party ordered to pay attorney fees on the authority of Code of Civil Procedure section 128.5 is precluded by Insurance Code section 533 from recovering such fees under the provisions of a comprehensive general liability insurance policy insuring against liability for malicious prosecution. I. Facts and Procedural History The underlying facts o...
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*1516 Opinion Driving School Association of California (hereafter Driving School) appeals from a judgment dismissing a petition for writ of mandate to compel San Mateo Union High School District (hereafter School District) to desist from charging high school students fees for driver training classes offered in its adult school and to refund fee payments that it has received. ...
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Opinion In Carpenters So. Cal. Admin. Corp. v. El Capitan Development Co. (1991) 53 Cal.3d 1041 [282 Cal.Rptr. 277, 811 P.2d 296] (cert. *1541 den. Nov. 12, 1991, _ U.S. _ [116 L.Ed.2d 450, 112 S.Ct. 430]), our Supreme Court held that Civil Code section 31 ll 1 , which creates liens on real property in favor of trust funds established pursuant to ...
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Opinion This appeal involves a decade-long battle over claims for subvention by two county superintendents of schools for reimbursement for mandated special education programs. Section 6 of article XIII B of the California Constitution directs, with exceptions not relevant here, that “[w]henever the Legislature or any State agency mandates a new program or higher level of service on any l...
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4 Cal.4th 911 (1993) 844 P.2d 545 16 Cal. Rptr.2d 226 GRUPE DEVELOPMENT COMPANY, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; CHINO UNIFIED SCHOOL DISTRICT, Real Party in Interest. Docket No. S020909. Supreme Court of California. February 11, 1993. *913 COUNSEL Nossaman, Guthner, Knox & Elliott, Alvin S. Kaufer, Winfield D. Wilson and Johnny D. Griggs for Petitioner...
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Opinion Plaintiffs Zeph Thorning and Robbie Crump, retired board members of defendant Hollister School District (hereafter, District), sought a *1602 writ of mandate directing District to pay for postretirement continuation of health benefits after District reversed an earlier authorization and suspended payment. The trial court sustained a demurrer to their second amended pe...
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805 F. Supp. 1484 (1992) SAFEWAY, INC., Plaintiff, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA, Defendant. NO. C-88-3440 DLJ. United States District Court, N.D. California. October 22, 1992. *1485 John J. Dacey, of McKenna & Fitting, San Francisco, Cal., for plaintiff. David B. Paynter, of Lewis, D'Amato, Brisbois & Bisgaard of San Francisco, Cal., and Jonathan Thier, of Ca...
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OPINION The debtor’s Chapter 7 trustee, Arnold Kupetz (“the trustee”), sought to avoid the postpetition transfer of funds to the appellant, the California State Board of Equalization (“the Board”). The bankruptcy court entered a judgment on the pleadings in favor of the trustee, rejecting the Board’s sovereign immunity defense. We REVERSE the bankruptcy court’s judgment. FACTS T...
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*1552 Opinion Carlton Clifford Meredith appeals from his conviction after a negotiated plea of guilty to one count of possession of cocaine base for sale. (Health & Saf. Code, § 11351.5; count 1.) Meredith pled guilty to one count of a two-count information after the trial court denied his motion under Penal Code section 1538.5 to suppress the evidence against him. 1 H...
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In an order filed on October 29, 1992, we granted appellant’s petition for rehearing and withdrew our prior opinion. We now file this substitute opinion. Joseph Scott Hunter appeals the denial of his petition for a writ of habeas corpus. He contends that the district court erroneously relied on the harmless error doctrine when rejecting his due process challenge to the state-imposed sentence. W...
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Eugene Fred Connor appeals pro se the denial of his habeas corpus petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Connor was convicted of first-degree murder and sentenced to life imprisonment under California’s Indeterminate Sentencing Law (ISL). Following his sentencing, California repealed the ISL and enacted the current Determinate Sentencing Law (DSL). Connor has been...
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Opinion Defendant was convicted of violating his duty to stop and report an injury-producing accident (Veh. Code, § 20001, subd. (b)(1)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), exhibition of a deadly weapon (Pen. Code, § 417, subd. (a)(1)), possession of heroin (Health & Saf. Code, § 11350) and two counts of perjury (Pen. Code, § 118). The jury found that defendant...
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4 Cal.4th 652 (1992) 842 P.2d 138 14 Cal. Rptr.2d 839 FREEDOM NEWSPAPERS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; B. RICHARD GOULD, as Executor, etc., Real Party in Interest. Docket No. S018076. Supreme Court of California. December 31, 1992. *654 COUNSEL Helsing & Wray, Duffern H. Helsing, Halina F. Osinski and George D. Straggas for Petitioners. No app...
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4 Cal.4th 742 (1992) 842 P.2d 1192 15 Cal. Rptr.2d 432 THE PEOPLE, Plaintiff and Respondent, v. RODNEY JAMES ALCALA, Defendant and Appellant. Docket No. S004724. Crim. No. 25693. Supreme Court of California. December 31, 1992. *754 COUNSEL Marshall Warren Krause and Joseph Baxter, under appointments by the Supreme Court, for Defendant and Appellant. John K. Van de Kamp and Daniel Lungren, Attorne...
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I am in general agreement with the views expressed in Justice Kennard’s concurring and dissenting opinion. However, I cannot embrace the ill-advised concession that the trial court’s order “did pose a potential for disruption of a function of the legislative branch” although the degree of potential disruption “is not great” and the purported infringement on the legislative function is “not substan...
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Opinion This is an appeal after an order of dismissal for failure to serve the summons within two years after commencement of the action. Appellants, American Western Banker (AWB) and guarantors of some of its corporate debt, sued two certified public accounting firms (collectively respondents) for negligence, fraud and related causes of action. In various ways, all causes of action alleg...
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Opinion First Nationwide Savings (FNS) sued Sunrise Trust for unjust enrichment and money had and received. Sunrise demurred to the second *1661 amended complaint. The demurrer was sustained without leave to amend. Judgment was entered against FNS. On appeal, we consider whether a beneficiary (FNS) can recover for unjust enrichment from a nonassuming grantee of a purchas...
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Opinion Plaintiffs ask this court to reverse the entry of a summary judgment in their “toxic-tort” action. We will reverse the summary judgment. In the published portion, we hold that the cost of future medical monitoring, to detect the onset of disease caused by exposure to pollutants, is a “detriment” under Civil Code section 3333. Statement of Case and Facts Defendants m...
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MEMORANDUM AND ORDER This action came on for hearing October 2, 1992, before the Court, the Honorable William J. Rea presiding, on Appellant and Debtor F.A.B. Industries’ appeal from the United States Bankruptcy Court for the Central District of California. After full consideration of the authorities submitted by the parties, and oral argument of counsel, the Bankruptcy Court’s order gran...
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Archer Frey appeals from the district court’s dismissal of his action alleging that the California National Guard violated the *400 Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, by requiring him to separate from active duty on his sixtieth birthday pursuant to Section 167 of the California Military and Veterans’ Code. Frey filed this action against the State of...
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11 Cal. App. 4th 1672 (1992) 15 Cal. Rptr. 2d 305 THE PEOPLE, Plaintiff and Respondent, v. RAUL TORRES SERRANO, Defendant and Appellant. Docket No. B054554. Court of Appeals of California, Second District, Division One. December 31, 1992. *1673 COUNSEL Patricia L. Watkins, under appointment by the Court of Appeal, for Defendant and Appellant. *1674 Daniel E. Lungren, Attorney General, George H. W...
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Opinion Nicki P. and Benjamin R. appeal from the order terminating their parental relationship (Welf. & Inst. Code1, § 366.26) with their son, Edward R. The parents contend termination hearings conducted pursuant to this code provision deprive them of equal protection under the law. They assert section 366.26 does not permit evidence of present circumstances to be adduced while consideration of a...
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Opinion Defendant Juniper Garden Town Homes, Ltd. (Juniper), appeals from the denial of its motion to vacate a sister state money judgment entered in favor of plaintiff Tsakos Shipping and Trading, S.A. (Tsakos). Juniper contends: (1) the underlying judgment was void because: (a) process was never properly served on Juniper, (b) Juniper’s former general partner had no actual or apparent a...
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Opinion This case involves the pleading and notice requirements of a summary judgment proceeding, We are presented with the *62 question whether the trial court may grant a motion for summary judgment upon a ground of law not explicitly tendered by the moving party, i.e., a ground of law identified by the trial court rather than by the movant, if application of that law to a...
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Opinion In October 1990 a Portland, Oregon court entered a judgment against Tom Metzger arising out of the beating death of a Black man. On December 18, 1990, an abstract of the judgment was recorded in San Diego County. On February 21, 1991, the San Diego County Superior Court executed the judgment on a home owned by Metzger. On May 14, 1991, the court granted Metzger a $45,000 exemption...
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Opinion This is an appeal after a judgment entered in favor of defendants Hee Duk Kang and Inja Kang (hereafter, collectively, Kang), who purchased an apartment complex from plaintiffs EPA Real Estate Partnership and Jack Horton (a partner of EPA Real Estate Partnership) (hereafter, collectively, EPA). On appeal, EPA contends the trial court misapplied the parol evidence rule to exclude evidenc...
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OPINION AND ORDER FOR JUDGMENT I. Plaintiff 1 brings this action for a refund of federal income taxes. The claim for refund arises from a charitable contribution deduction which plaintiff claimed on its 1987 income tax return. The charitable contribution was for plaintiff’s alleged donation of real property to the State of California in 1987. Defendant denied the charitabl...
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MEMORANDUM OF DECISION Gerald J. Cennamo and Sharon K. Cenna-mo (“Debtors”) claim that an invalid assessment listed on a Notice of Federal Tax Lien for 26 U.S.C. §§ 6700 and 6701 tax penalties renders the lien invalid. Alternatively, if the lien is valid, the Debtors seek to invoke the doctrine of equitable subordination under 11 U.S.C. § 510(c) of the Bankruptcy Code (“Code”) so as to su...
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OPINION OVERVIEW The trial court held that the defendant in this preference action gave “new value” by executing a vehicle certificate of title in return for payment for a vehicle that the defendant had given to the debtor to sell and which the debtor had sold to a third party. The trustee argues that the sale to the third party transferred title to the vehicle and cut off the rights...
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The petitioners challenge the decision of the Merit Systems Protection Board (Board), sustaining their indefinite suspensions without pay from their jobs at the Norfolk Naval Shipyard. The suspensions followed the termination of their access to classified information, and were to continue until the agency determined whether to cancel their security clearances. After the agency had decided not t...
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Carl Wesley Thomas, who unsuce$essfully charged the members of the Nevada Gaming Commission and others with violating his civil rights, appeals the district court’s award of attorneys’ fees to the defendants. Because the award is contrary to law, we reverse. Thomas brought a § 1983 action in which he alleged that the Commission’s decision to exclude him from licensed gaming establishments violated...
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982 F.2d 1374 UNITED STATES of America, Plaintiff-Appellee,v.Robert M. PETTY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jordan Rodrigues QUINTAL, Jr., Defendant-Appellant. Nos. 90-30291, 90-30294. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 7, 1992.Decided Jan. 7, 1993. Richard J. Troberman, Seattle, WA, for defendant-...
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Opinion Judgment was entered for defendants on plaintiffs’ complaint. Defendants filed a memorandum of costs and plaintiffs moved to tax those costs. Plaintiffs then filed a notice of appeal. Plaintiffs’ motion to tax costs was subsequently denied and defendants were awarded expert witness fees pursuant to Code of Civil Procedure 1 section 998. Plaintiffs assert that the trial ...
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983 F.2d 156 Elynor Rudnick FALK, Plaintiff-Appellant,v.MT. WHITNEY SAVINGS & LOAN ASSOCIATION, Federal Savings &Loan Insurance Co.; Federal Deposit Insur.Corporation; Ticor Title InsuranceCompany, Defendants-Appellees. No. 91-15920. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 8, 1992.Decided Jan. 8, 1993. William A. Anderson, and Th...
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Because of the government’s bad faith actions, the laboratory equipment seized from Apotheosis Research lies broken and buried in a toxic waste dump. This equipment cannot be introduced at trial. It can neither support nor undermine Wayne Cooper and Vincent Gammill’s repeated assertion that their lab lacked the physical capability to manufacture methamphetamine. We consider here whether Cooper ...
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concurring: I concur in the opinion, but write separately because I have misgivings about the condition in which we now leave the law. I concur because it is eminently sensible to hold that a search incident to an illegal arrest cannot stand. I have misgivings because that produces some rather strange legal results. We know that the legality of a search does not depend “on the law of the particula...
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982 F.2d 1378 UNITED STATES of America, Plaintiff-Appellee,v.Glen BUTZ; Danner L. Boone, Defendants-Appellants. Nos. 91-30374, 91-30409. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1992.Decided Jan. 8, 1993. Ellison M. Matthews, Boise, ID, E. Alexander DeSalvo, Denver, CO, for defendants-appellants. Monte J. Stiles, Asst. U.S. Atty.,...
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ORDER RE: DEFENDANT’S MOTION TO STRIKE AND MOTION TO DISMISS Introduction Plaintiff James Darby Jr., has brought suit against the city of Torrance, the Torrance Company, and two City of Torrance Police Officers, John Senger and Thomas Aldrich, alleging that the defendants individually and as a group deprived him of his federal civil rights in violation of 42 U.S.C. Section 1983. Plaintiff h...
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ORDER DENYING MOTION FOR LEAVE TO WITHDRAW AS ATTORNEY OF RECORD Introduction Plaintiff James Darby Jr. (Darby) has brought suit against the city of Torrance, *276 the Torrance Company, and two City of Torrance Police Officers, John Senger and Thomas Aldrich, alleging that the defendants individually and as a group deprived him of his federal civil rights in violation of 42 U.S.C. Section...
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ORDER RE: PETITIONER’S MOTION TO AMEND THE PETITION FOR WRIT OF HABEAS CORPUS On August 18, 1992, petitioner moved to amend his petition and add six new claims pursuant to Rule 15 of the Federal Rules of Civil Procedure. Rule 15(a) states that once a responsive pleading has been served, “a party may amend the party’s pleadings only by leave of court or by written consent of the adverse party; a...
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OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS I. INTRODUCTION Petitioner, William George Bonin, has filed a petition for a writ of habeas corpus challenging his 1982 convictions in Los An-geles of ten counts of first degree murder and his subsequent death sentence. 1 After his Los Angeles trial, petitioner stood trial in Orange County where he was convicted of four additional coun...
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Opinion Defendant and appellant Kermis T. Thompson appeals from the judgment after a jury trial in which he was convicted of first degree murder with special circumstances and attempted rape. In the published portion of this opinion, we conclude a defendant may be guilty of attempted rape when the defendant intends to have nonconsensual intercourse with a live victim, but unbeknownst to t...
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Universal Canvas, Inc. appeals the Armed Services Board of Contract Appeals denial of an equitable adjustment and of a motion to vacate its decision for lack of jurisdiction. Universal Canvas, Inc., ASBCA No. 36141, 1991 WL 104149, 1991 WL 130398 (April 29, 1991; July 3, 1991). We reverse. Background On August 31, 1984, the Natick Army Research, Development and Engineering Center (Natick) awarde...
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MEMORANDUM OF DECISION Creditors, Emery E. (“Bill”) Lampman, Ralph James Lampman, as Trustee of the *933 James Lampman Trust, and Ralph James Lampman, as Executor of the Estate of James Frank Lampman (collectively, “Creditors”) object to James J. Witwer’s (“Debt- or”) claim that his profit sharing plan is exempt from creditors’ claims. The Debtor contends that his profit shar...
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983 F.2d 939 16 Employee Benefits Cas. 1433 Roberta L. FRANKLIN, Plaintiff-Appellant,v.Jack W. THORNTON, Thornton & Franklin Money Purchase PensionPlan, Thornton & Franklin Profit Sharing Plan,Defendants-Appellees.Roberta L. FRANKLIN, Plaintiff-Appellant,v.Jack W. THORNTON, Defendant-Appellee. Nos. 90-16274, 90-16717. United States Court of Appeals,Ninth Circuit. Argued...
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The main issue we must decide in this case is whether the exclusion of an attorney from the witness preparation stage of a pretrial lineup violated the Sixth Amendment right to counsel. We find any constitutional error harmless and affirm the district court’s denial of Leland Jordan’s habe-as corpus petition. *935 I. Responding to a radio broadcast about a wallet theft in the area and a des...
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*1242 Opinion I. Introduction In the published portions of this opinion, we address certain legal issues raised by a dispute between a city and a county, concerning the provision of emergency medical services to areas within the county, but outside the city. II. Procedural History and Facts The City of Petaluma (City) appeals from a judgment construing two sections...
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Opinion Avis Rent A Car System, Inc. (Avis), is being sued by a motorist injured when her car was rammed by a stolen Avis vehicle being chased from the scene of a shoplifting. Avis’s liability is premised upon its failure to take adequate precautions to prevent theft of its vehicles. We conclude that the “special circumstances” doctrine arising from the California Supreme Court decision in Ric...
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*211 Opinion Introduction Petitioner, Russell Hartsuiker, seeks review of an opinion and order of respondent Workers’ Compensation Appeals Board (WCAB or Board) denying reconsideration of a decision of the workers’ compensation judge (WCJ) declining to reserve jurisdiction to award further temporary total disability indemnity in the event of hospitalization or surgery occurr...
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*410Opinion This is an appeal by Linda H. (mother) from a judgment terminating her parental rights as to her two children, Crystal J. and Scott S., following a selection and implementation hearing held in accordance with Welfare and Institutions Code1 section 366.26. Mother contends the judgment should be reversed and a new hearing held because (1) the assessment report prepared by the department ...
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delivered the opinion of the Court. Respondent Ernest C. Brown, a former employee of petitioner Bath Iron Works Corp., learned after he retired that he suffered from a work-related hearing loss. The parties agree that under the Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., respondent is entitled to disability...
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506 U.S. 139 (1993) PUERTO RICO AQUEDUCT AND SEWER AUTHORITY v. METCALF & EDDY, INC. No. 91-1010. United States Supreme Court. Argued November 9, 1992. Decided January 12, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT *140 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., j...
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506 U.S. 194 (1993) ROWLAND, FORMER DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS, et al. v. CALIFORNIA MEN'S COLONY, UNIT II MEN'S ADVISORY COUNCIL No. 91-1188. United States Supreme Court. Argued October 6, 1992. Decided January 12, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *195 *196 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., a...
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In this appeal and cross-appeal we must .decide whether a civil action can be dismissed as a sanction for failure to comply with discovery rules and whether a summary judgment motion on a counterclaim can be granted based solely on failure of the opposing party to file an answering memorandum under local court rules. I Del P. Henry, Jr., (“Henry”) brought suit against Gill Industries,...
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Opinion In this case the trial court prevented plaintiff’s traffic expert from offering any testimony about reconstruction of the accident in which plaintiff was injured. We reverse because there is no dispute the expert was qualified to give reconstruction testimony and the record discloses the expert’s identity was disclosed, along with a description of his *428 proposed te...
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Opinion Petitioner General Motors Corporation (General Motors) sought summary judgment on the ground that the real party in interest, James Ticich (Ticich) had relinquished his right to pursue this action against it when he executed a release of “any and all persons, firms, and corporations.” We hold that this general release operates to release General Motors even though it was not speci...
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Opinion Introduction Arlene and Donald Warner appeal from a judgment granting specific performance of an oral agreement to purchase real property in favor of respondents Gloria and Kenneth Sutton. The Warners contend on appeal that substantial evidence does not support the judgment and that numerous errors of law compel reversal. *418 The Suttons cross-appeal the de...
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Opinion A jury convicted Charles Burnett and Herbert Shedd (appellants) of first degree murder (Pen. Code, 1 § 187) and the trial court sentenced each of them to a 25-years-to-life state prison term. They contend the judgment must be reversed because the trial court: (1) made disparaging comments about defense counsel, (2) prematurely determined prosecution witnesses were not accomplices, (3)...
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Opinion Appellants Enrique Carlos Arango (Arango) and Pedro Antonio Rizo 1 (Rizo) were charged with sale or transportation of cocaine (Health & Saf. Code, 2 § 11352, subd. (a)), possession for sale of cocaine (§11351), and conspiracy to sell or transport cocaine (Pen. Code, § 182). A 10-year enhancement (the cocaine exceeded 25 pounds by weight) was alleged as to eac...
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with whom Justice Blackmun joins, dissenting. After the Civil War, Congress enacted legislation imposing on the Federal Judiciary the responsibility to remedy both abuses of power by persons acting under color, of state law and lawless conduct that state courts are neither fully competent, nor always certain, to prevent.1 The Ku Klux Act of 1871,17 Stat. 13, was a response to the massive, organize...
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983 F.2d 1497w UNITED STATES of America, Plaintiff-Appellee,v.Brian HUTCHISON, Defendant-Appellant. Nos. 91-10225, 91-10598. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 6, 1992.Decided Jan. 13, 1993. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 22 F.3d 846. ...
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982 F.2d 1389 25 Fed.R.Serv.3d 293 STOCK WEST CORPORATION, an Oregon corporation, Plaintiff-Appellant,v.Manuel LUJAN, Jr., in his official capacity as Secretary ofthe United States Department of Interior; Stanley Speaks,in his official capacity as Portland Area Director, Bureauof Indian Affairs; Interior Board of Indian Appeals,Defendants-Appellees. No. 91-35799. United States Co...
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*497 Opinion Mercury Insurance Group filed a declaratory relief action against its insured, Steven Negrette, and his employer, Checkerboard Pizza, seeking confirmation of its decision to deny coverage to Negrette based on an exclusion for business use of a nonowned vehicle. The trial court granted summary judgment in favor of Mercury, and Checkerboard Pizza appeals. We reverse. I Mercury ...
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OPINION Plaintiffs, The Association of National Advertisers, et al., bring this action against defendant Daniel Lungren, in his official capacity as Attorney General of the State of California. 1 Plaintiffs challenge section 17508.5 of the California Business and Professions Code, which regulates certain environmental claims used in advertising, on the grounds that: (1) the sta...
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concurring. I join in the carefully-reasoned and well-written opinion of Judge Newman. With regard to Part I dealing with the PTO procedure, her explanation of the meaning and application of the ‘prima facie case’ concept should help clarify an area that remains marked by a lack of clarity. The *1449need for that discussion, however, illustrates the pitfalls of the ‘prima facie’ practice of the PT...
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OPINION AND ORDER Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions, [cite omit...
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Todd Neville appeals the district court’s affirmance of the magistrate’s revocation of Neville’s term of supervised release and the imposition of a six month sentence of imprisonment under 18 U.S.C. § 3583(e) (Supp.1991). Neville violated the terms of his supervised release before the supervisory period expired. However, Neville argues that the district court lacked jurisdiction to revoke his sup...
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982 F.2d 1400 25 U.S.P.Q.2d 1570 LINDY PEN COMPANY, INC.; Blackfeet Plastics, Inc.,Plaintiffs-Appellants, Cross-Appellees,v.BIC PEN CORPORATION, Defendant-Appellee, Cross-Appellant. Nos. 90-55248, 90-55249. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 8, 1992.Decided Jan. 14, 1993. 1 Thomas A. Turner, Jr., Los Angeles, CA, for plaint...
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Opinion Defendant National Union Fire Insurance Company of Pittsburgh, Pa., appeals from a judgment for more than $7 million obtained against it by plaintiff Xebec Development Partners, Ltd. (XDP) on claims assigned to XDP by insureds under a policy of directors and officers liability and corporate reimbursement insurance (the D&O policy) issued by National Union. XDP cross-appeals from t...
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977 F.2d 587w NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.BFI MEDICAL WASTE SYSTEMS; BFI Medical Waste Systems ofCalifornia, Incorporated; Browning-FerrisIndustries, Limited, Plai...
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984 F.2d 283 35 ERC 2028, 61 USLW 2441, 23 Envtl.L. Rep. 20,546 FAIRCHILD SEMICONDUCTOR CORPORATION, Plaintiff-Appellant,v.U.S. ENVIRONMENTAL PROTECTION AGENCY; Daniel McGovern, inhis official capacity as Regional Administrator ofRegion IX, Defendants-Appellees. No. 91-16435. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1992.Decided Jan. 15, 1993....
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The claimant appeals from an order of the district court denying attorney’s fees under the Equal Access to Justice Act, (“EAJA”), 28 U.S.C. § 2412(d), on the ground that the government’s position was substantially justified. On appeal, the government raises for the first time a jurisdictional issue. It argues that as a result of the Supreme Court’s decision in Melkonyan v. Sullivan, — U.S. -, 111 ...
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Opinion On this appeal from a judgment granting a petition of Chrysler Corporation (Chrysler) for a peremptory writ of mandate under Code of Civil Procedure section 1094.5, we are presented with a question of statutory construction concerning the directory or mandatory effect, and the meaning of, the Vehicle Code 1 section 3067 phrase: “If the board fails to act within 30 days ...
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Opinion Petitioner Cedars-Sinai Medical Center (Cedars) seeks a writ of mandate directing the trial court to vacate its order denying Cedars’s request for a protective order. The trial court’s order permitted real parties in interest Hendel Schwartz, Eric Schwartz, and Daniel Schwartz, by and through his guardian, Hendel Schwartz, (collectively, the Schwartzes) to discover in the course of their ...
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In this case, plaintiff Telectronics charged defendant Ventritex with patent infringement, alleging that Ventritex had engaged in activities that were not exempt under 35 U.S.C. § 271(e)(1) (1988) as activities “solely for uses reasonably related” to obtaining FDA approval of its implantable defibrillator. In addition, plaintiff sought a declaratory judgment that, upon FDA approval, sales of Ve...
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Opinion The Sierra Club petitioned the superior court for a writ of mandate (Code Civ. Proc., § 1094.5) against a decision of the California *606 Coastal Commission (Commission) approving and certifying a land-use plan (LUP) of real party in interest, the County of Mendocino (County), as consistent with the California Coastal Act of 1976 (Coastal Act or Act) (Pub. Resources C...
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Richard Krantz, an Alaska state prisoner now on probation, appeals the district court’s denial of his 28 U.S.C. § 2254 *962 habeas corpus petition. 1 Krantz contends that his conviction is invalid because he was not informed of his Miranda rights before he made certain incriminating statements to the police and because statements he made subsequent to receiving a Miranda warning were not ...
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This admiralty case arises from an alleged rape on board a cruise liner. We must decide whether the Supreme Court has implicitly overruled this circuit’s law that a ship owner is absolutely liable for a crew member’s assault on a passenger. *290 I Plaintiffs Susan and William Morton paid to take a cruise in 1989 on the M/V Carni-vale, a ship owned and operated by Carnival Cru...
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The United States appeals from the United States Claims Court judgment in Krapf v. United States, 17 Cl.Ct. 750 (1989), which held that 26,000 shares of stock in Mechtron Industries, Inc. (Mechtron), donated to the University of Delaware (the University) by Frederick G. Krapf, Jr., on September 2, 1976, had a value of $112,840 ($4.34 per share) at the time of donation. We reverse and...
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Opinion This case arises from a dispute regarding the property tax assessment of geothermal power plants owned by appellant Freeport-McMoran Resource Partners (Freeport). Appellant contends the county overvalued the property by basing its assessment on capitalization of the income stream of fixed price contracts under which appellant sells electricity to Pacific Gas and Electric Company (...
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Opinion In 1984 William and Kathleen Capogeannis bought land from William and Rita Spence. At the time of the *672 purchase the Capogeannises did not know that there were underground fuel storage tanks on the land, or that the tanks had leaked and had contaminated soil and groundwater with petroleum hydrocarbons, but by early December 1987 the Capogeannises were fully aware o...
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12 Cal.App.4th 647 (1993) 16 Cal. Rptr.2d 16 HILDEGARD LEE BORELLI, Plaintiff and Appellant, v. GRACE G. BRUSSEAU, as Executor, etc., Defendant and Respondent. Docket No. A055685. Court of Appeals of California, First District, Division Four. January 19, 1993. *649 COUNSEL Fitzgerald, Abbott & Beardsley, Richard T. White, Virginia Palmer and Maria I. Lawless for Plaintiff and Appellant. Steve...
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Background The plaintiff is a former facilities clerk at the Naval Air Station Miramar Navy Exchange in San Diego. She has filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16 (1988) alleging harassment and discrimination. Defendants include the Secretary of the Navy, and three civilian employees. Two motions to dismiss are before the court; the first...
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ORDER RE MOTION TO VACATE DECISION I. INTRODUCTION Plaintiff Independent Union of Flight Attendants (“IUFA”) seeks an order of this court vacating its prior decision on the ground that the case was mooted while on appeal. II. FACTS IUFA brought this action in 1988 against defendants Pan American World Airways, Inc. and Pan American Corporation (“Pan Am”), seeking to compel arbitration of a grievan...
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Claude Dallas, who was convicted of killing two Idaho game wardens, appeals the district court’s denial of his petition for a writ of habeas corpus. His claims, challenging his conviction and sentence, are based upon the faulty premises that each of the jury's verdicts must be consistent with the other verdicts, and that the sentence must be based upon the jury’s factual findings. We affirm the o...
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Luscier appeals from the sentence the district court imposed upon his pleas of guilty to two counts of assault with a dangerous weapon, 18 U.S.C. §§ 1151, 1153, and one count of second degree murder, 18 U.S.C. §§ 1111, 1151, 1153. BACKGROUND The offenses for which Luscier was convicted occurred on the Quinault Indian Reservation in Taholah, Washington. After an evening of heavy drinking and s...
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Opinion Appellant Robert Findleton, the owner of a parcel of real property in El Dorado County (County), petitioned the trial court for a writ of mandate to order respondent County Board of Supervisors (Board) to issue him a certificate of compliance with the Subdivision Map Act (Gov. Code, § 66410 et seq.; hereafter SMA) so that he could make use of his property. 1 The trial court denied Fin...
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Opinion The State Water Resources Control Board (State Board) and the Regional Water Quality Control Board for the San Francisco Bay Region *700 (Regional Board) appeal from a judgment insofar as it denied their petition for writ of mandate seeking to overturn a determination by the Office of Administrative Law (OAL). 1 The Bay Planning Coalition, which had initiated the matter by seeking t...
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*801 Opinion Appellant was charged with one count each of murder and robbery, in violation of Penal Code sections 1 187, subdivision (a) and 211. Both counts were alleged to be serious felonies. Both counts had a special allegation that appellant was armed with a firearm within the meaning of section 12022, subdivision (a)(1). After a jury trial, appellant was found guilty of first degree m...
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On November 16, 1992, the Supreme Court vacated this court’s September 10, 1991 order which had dismissed this appeal as moot and remanded the case for further proceedings. Church of Scientology of California v. United States, — U.S. -, -, 113 S.Ct. 447, 453, 121 L.Ed.2d 313 (1992). The Court held that compliance with the Internal Revenue Service summons enforcement order did not render the app...
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ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS I. STATEMENT OF FACTS A. The Parties Scripps-Miles, Inc. (“Scripps-Miles”) was a corporation jointly owned by Plaintiff Miles, Inc. (“Miles”), a pharmaceutical company, and Defendant Scripps Clinic and Research Foundation (“Scripps”), a non-profit research foundation. One purpose of forming the corporation was to prepare and ...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY .JUDGMENT INTRODUCTION Plaintiffs Robert E. Bailey and Frances C. Bailey (“the Baileys”) are the owners of fee title to real property located at 1892 Cummings Road, Brentwood, California. The Baileys brought an action against State Farm Insurance Co. (“State Farm”) and Fidelity National Title Insurance Co. (“Fidelity”) for Declaratory Relief. The...
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In this case we are called upon to decide whether California may restrict the Que-chan Indian Tribe’s regulation of the sale of fireworks on its reservation pursuant to Pub.L. 83-280, § 2,18 U.S.C. § 1162 (1988). The district court held that California could enforce its fireworks law on the Fort Yuma Indian Reservation and granted the State’s motion for summary judgment. We have jurisdiction ov...
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ORDER The opinion filed August 31, 1992, 973 F.2d 1463, is withdrawn. A new opinion will be filed. OPINION This case arises from denial of a claim for benefits under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950 (1988) (“the Longshore Act”). An administrative law judge (AU) denied Shirley A. Smiley’s claim for permanent total disability benefits as com...
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Daniel Douglas Martin appeals his sentence on revocation of supervised release. Because we hold that Martin’s due process right to confrontation was violated, we reverse and remand. I Martin pleaded guilty to possession with intent to distribute heroin and was sentenced to 24 months’ imprisonment and four years of supervised release. He was released from prison on January 23, 1992. On March 1...
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Allen Rea Taylor appeals his sentence under the United States Sentencing Guidelines, following his conviction on a guilty plea, for one count of engaging in a monetary transaction in property derived from specified unlawful activity in violation of 18 U.S.C. §§ 1957 and 982. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, and we affirm in part and vacate and remand in...
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983 F.2d 1487 UNITED STATES of America, Plaintiff,v.ALPINE LAND & RESERVOIR COMPANY, a Corporation, Defendant,andNevada State Engineer, Defendant-Appellee,Pyramid Lake Paiute Tribe of Indians, Applicant-Appellant,Truckee-Carson Irrigation District; Water Right TransferApplicants, Applicants-Appellees. No. 90-16460. United States Court of Appeals,Ninth Circuit. Argued and Submi...
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ORDER PARTIALLY GRANTING SUMMARY JUDGMENT; DENYING SASS’S REQUEST FOR LEAVE TO AMEND; DENYING SASS’S MOTION TO STAY PROCEEDINGS I. INTRODUCTION Plaintiffs, M.D. Sass Investment Services, et al. (“Sass”), brought suit in this court against its liability insurer, defendant Reliance Insurance Company of Illinois (“Reliance”). Reliance has denied coverage under its policy and refused to ...
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Opinion Plaintiff sued a public entity to recover for personal injuries after he slipped and fell on public property. The Court of Appeal held that the doctrine of res ipsa loquitur precluded summary judgment for the public entity even though there was no evidence to show how the slippery object came to be on the floor or that the public entity had notice of the hazard. We reverse. Background Pla...
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Daniel D. Clark appeals from the district court’s imposition of sentence following revocation of his probation. In a separate case, he was also sentenced following revocation of his supervised release. Both revocations were based on a single violation. Clark contends that the district court lacked jurisdiction to sentence him for violating his supervised release because he was in custody, rather ...
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Rogers pled guilty to mail fraud and was sentenced to eight years imprisonment and ordered to pay $70.7 million in restitution. The government concedes that the imposition of restitution was improper, but the parties disagree on the proper remedy. Rogers also contends that his plea was coerced by the imposition of an IRS jeopardy assessment. We vacate Rogers’ sentence and remand for resentencin...
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Opinion Defendant was convicted by jury of first degree murder. (Pen. Code, §§ 187, 189.) On appeal, he contends the trial court committed prejudicial instructional error. Among other things, he challenges CALJIC No. 8.25, which informed the jury that murder immediately preceded by lying in wait is first degree murder, and defined the term “lying in wait.” *789 We reject def...
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Opinion A jury convicted appellant, Gregory Cabral, of the following crimes: two counts of penetration by a foreign object (Pen. Code, § 289, subd. (a) 2 , counts l 3 and 3), sodomy (§ 286, subd. (c), count 2), four counts of rape (§ 261, subd. (a)(2), counts 4, 5, 8, and 9) two counts of oral copulation upon a child under the age of 14 (§ 288a, subd. (c), counts 6 and 7), six counts of lew...
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*690 Opinion Respondent State Compensation Insurance Fund (State Fund) issued a workers’ compensation and employer’s liability insurance policy to appellants Warren W. Wong and George Ewers, individually, and W. Wong, Ewers & Co., a general partnership (collectively Wong). Gregory McClellan filed a suit in superior court seeking damages from Wong for an alleged constructive wrong...
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12 Cal.App.4th 812 (1993) 15 Cal. Rptr.2d 861 HECTOR MORFIN et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA, Defendant and Respondent. Docket No. D012220. Court of Appeals of California, Fourth District, Division One. January 22, 1993. *814 COUNSEL Virginia R. Gilson and Gary A. Sernaker for Plaintiffs and Appellants. Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assis...
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Opinion Defendant Wesley William Clark (appellant) was charged in a complaint with continuous sexual abuse of a child under the age of 14 years (Pen. Code, 1 § 288.5), commission of a forcible lewd act upon a child under the age of 14 years (§ 288, subd. (b)), and oral copulation of a child under the age of 14 years and more than 10 years younger than appellant (§ 288a, subd. (c)). The compla...
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506 U.S. 461 (1993) GRAHAM v. COLLINS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION No. 91-7580. United States Supreme Court. Argued October 14, 1992. Decided January 25, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *462 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. ...
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the opinion of the Court. Section 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 2, makes it an offense for any person to “monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States . . . .” The jury in this case returned a verdict finding that petitioners had monopol...
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INTRODUCTION These actions have been related before this court because they involve the same parties and substantially the same set of facts. The following motions to dismiss and strike by Kentucky Central Life Insurance Company (“Kentucky Central”) and certain directors and officers of Kentucky Central (“Individual Defendants”) are before the court: (1) Kentucky Central’s motion to strike...
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David Beaver appeals from his sentence, imposed following a guilty plea, for conspiracy to manufacture marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 846. Beaver contends that the district court erred by applying the plant-to-weight conversion table set forth in the United States Sentencing Guidelines because (1) the table conflicts with 21 U.S.C. § 841(b)(1)(B)(vii), and (2) because the Se...
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Sherman Hawkins appeals the dismissal of his 42 U.S.C. § 1983 action against several officials of the State of Montana. 1 We have jurisdiction under 28 U.S.C. § 1291 and affirm. I. Montana police arrested Sherman Hawkins while he was on work furlough from a life sentence for murder; during processing, Hawkins attacked an officer and fled to Arizona. After he was apprehended...
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982 F.2d 1527 61 USLW 2451, 25 U.S.P.Q.2d 1241 In re HAYES MICROCOMPUTER PRODUCTS, INC. PATENT LITIGATION.VEN-TEL, INC., Plaintiff-Appellant,v.HAYES MICROCOMPUTER PRODUCTS, INC., Defendant/Cross-Appellant.HAYES MICROCOMPUTER PRODUCTS, INC., Plaintiff/Cross-Appellant,v.VEN-TEL, INC., Defendant-Appellant. Nos. 91-1301, 91-1302. United States Court of Appeals,Federal Dec. 23, 1992...
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Opinion Charged with murder (Pen. Code, § 187; unless otherwise noted, statutory references are to the Penal Code), appellant was convicted by a jury of voluntary manslaughter (§ 192, subd. (a)) while using a firearm (§ 12022.5). He was sentenced to state prison for 10 years. Appellant contends the trial court erred: (1) by giving a statute (Evid. Code, § 1103) ex post facto application, (2) ...
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Opinion In this case, which appears to be one of first impression, we are called upon to determine whether the State of California’s (State) demand for equitable indemnity against the City of Ontario (City) is barred by the State’s failure to precede its lawsuit by the filing of a claim pursuant to the Government Tort Claims Act. (Gov. Code, § 810 et seq.) 1 The State argues th...
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Opinion Petitioner (defendant) seeks a writ of mandate directing respondent superior court to set aside its order denying defendant’s motion *840 for security, brought pursuant to the vexatious litigant statute. (Code Civ. Proc., § 391 et seq.; further statutory references to sections of an undesignated code are to the Code of Civil Procedure.) While represented by counsel, real party in in...
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Opinion TJD, Inc. (defendant), appeals from a judgment entered on a jury verdict awarding respondents (plaintiffs) damages for breach of a lease between the parties. On appeal defendant contends the superior court *832 erred in denying its motion for summary judgment, and that the court failed in its order of denial adequately to state its reasons. We shall conclude that defe...
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The government appeals from the July 3, 1991 decision of the Court of Veterans Appeals (CVA), Appeal No. 89-5, reversing the decision of the Board of Veterans’ Appeals, which affirmed the Veterans Administration’s (VA’s) decision denying eligibility for retroactive release from liability on a VA-guaranteed home loan:. The court remanded the case for a new evaluation. 1 Vet.App. 344. We find tha...
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Opinion Anthony Holmes appeals his conviction by jury trial of first degree murder (Pen. Code, § 187), second degree robbery (Pen. Code, § 211) and a finding of firearm use. (Pen Code, § 12022.5). He raises instructional and identification error. We affirm. *1097 Facts In resolving this appeal we are required by established rules of appellate procedure to view the evidence in the light mo...
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Opinion Plaintiff Regina Compton (Compton) appeals from a judgment entered in favor of defendant City of Santee (City) after the granting of City’s motion for summary judgment. City’s motion urged, among other things, that City was immune from liability pursuant to Government Code 1 section 830.6. Compton contends the trial court erred in granting the motion, arguing a genuine ...
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Opinion In this case, we hold a one-year sentence enhancement under Penal Code section 667.5, subdivision (b), may be imposed for a prior prison term that is the basis of a conviction for petty theft with a prior under Penal Code section 666. A jury convicted Melvin Julio Darwin of petty theft with a prior, and he admitted having served four prior prison terms for petty theft. The court sente...
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12 Cal.App.4th 1073 (1993) 15 Cal. Rptr.2d 874 DEREK PAOLI, Plaintiff and Appellant, v. CIVIL SERVICE COMMISSION OF MENDOCINO COUNTY, Defendant; COUNTY OF MENDOCINO, Real Party in Interest and Respondent; MENDOCINO COUNTY EMPLOYEES' ASSOCIATION, Intervener and Appellant. Docket No. A053816. Court of Appeals of California, First District, Division Two. January 26, 1993. *1075 COUNSEL William L. Wi...
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Opinion Appellants in this action, the former owners of a 44-unit apartment complex, appeal from a judgment awarding respondent Delta Costanzo the balance due on 11 promissory notes appellants had issued. Appellants claim respondent was barred from recovering a judgment against them by the antideficiency provisions of Code of Civil Procedure section 580b. 1 We agree and will reverse the decis...
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984 F.2d 991 Charles K. ELDER; Beverly S. Elder, husband and wife,Plaintiffs-Appellants,v.R.D. HOLLOWAY; Other Unknown Employees and/or Agents,individually and in their official capacity aspolice officers for the Ada CountySheriff's Office, et al.,Defendants-Appellees. No. 91-35146. United States Court of Appeals,Ninth Circuit. Jan. 27, 1993. Prior Report: 975 F.2d 13...
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OPINION FACTS On or about June 9, 1986, the Federal Deposit Insurance Corporation, as receiver for Heritage Bank (“FDIC”), obtained a judgment against debtor Thomas Morgan (“Morgan”) in the amount of $53,174.18. After recording an abstract of judgment, the FDIC initiated a proceeding in California state court to levy on real property owned by Morgan. On February 21, 1990, the Ca...
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Johnnie Warren appeals his convictions for first degree murder (18 U.S.C. § 1111), attempted murder (18 U.S.C. § 1113), and assault with a deadly weapon (18 U.S.C. § 113). We reverse Warren’s murder conviction. I. On January 5, 1991, 19-year-old Johnnie Warren and a group of his friends were drinking beer at the home of one of the group when Derek Johnson, another friend, arrived and ...
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Opinion Following jury trial, appellant was convicted on 14 of the 19 counts alleged against him in the information. Except for the prior felony conviction enhancement allegations charged against him pursuant to Penal Code sections 667, 667.6 and 667.9, 1 which had been bifurcated on appellant’s motion, all of the enhancement allegations charged against him were found by the ju...
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Jose Dominguez Lim, Jr. (“Lim”) appeals his conviction after a jury trial on one count of conspiracy to distribute and possess with intent to distribute ten or more grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1) and on one count of possession with intent to distribute ten or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. We af...
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984 F.2d 1507 142 L.R.R.M. (BNA) 2321, 61 USLW 2458,124 Lab.Cas. P 10,532 HOTEL EMPLOYEES AND RESTAURANT EMPLOYEES INTERNATIONALUNION; John Wilhelm; Donald M. Taylor; Mark D.Atkinson, Plaintiffs-Appellants,v.NEVADA GAMING COMMISSION, et al., Defendants-Appellees. No. 91-15188. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 11, 1992.Decided Jan. 27, 1...
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Opinion Kurtz, Richards, Wilson & Co., Inc. (KRW) appeals from a judgment that it take nothing on its cross-complaint against respondents, entered after a demurrer was sustained without leave to amend as to two causes of action and summary judgment was granted as to the remaining cause of action. We reverse the judgment and remand the case to the trial court with directions to sustain the...
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Opinion In this case we hold that in a medical malpractice action claiming injury and damages from psychologist-patient sexual contact, the trial court has discretion to admit evidence of plaintiffs sexual history for the purpose of determining proximate cause, but only to the limited extent the history is relevant and its probative value outweighs its prejudicial effect. I. Backgrou...
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12 Cal.App.4th 1130 (1993) 15 Cal. Rptr.2d 882 In re KHAMPHOUY S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. KHAMPHOUY S., Defendant and Appellant. Docket No. D016240. Court of Appeals of California, Fourth District, Division One. January 26, 1993. *1132 COUNSEL Elizabeth A. Barranco, under appointment by the Court of Appeal, for Defendant and Appellan...
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DECISION Transamerica Insurance Corporation appeals from a bench ruling of the United States Claims Court which granted the United States’ motion to dismiss Trans-america’s complaint for lack of subject matter jurisdiction. The Claims Court found that the contractor’s submissions did not *1574 constitute a claim under the Contract Disputes Act of 1978 (CDA), 41 U.S.C. § 601, because they did ...
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984 F.2d 1015 36 ERC 1081, 61 USLW 2472, 23 Envtl.L. Rep. 20,540 STANTON ROAD ASSOCIATES, Plaintiff-Appellee,v.LOHREY ENTERPRISES, Electronic Valet Systems, Inc., DavidLohrey, Nathan Pang, Defendants-Appellants. No. 91-15729. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1992.Decided Jan. 28, 1993. Robert H. Bunzel, Bartko, Tarrant & ...
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Defendant Richard Miller has the distinction of being the first FBI officer in history convicted of espionage. He appeals his conviction on two grounds. First, he claims that the FBI used his Mormon religious beliefs and other improper tactics to psychologically coerce him into confession. Second, he argues that the district court erred by denying his mid-trial motion to suppress wiretap eviden...
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984 F.2d 1033 Jennifer MARTIN; Elizabeth Martin, By and Through theirGuardian ad Litem, Vikki MARTIN; and VikkiMartin, individually, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.Jennifer MARTIN; Elizabeth Martin, By and Through theirGuardian ad Litem, Vikki MARTIN; and VikkiMartin, individually, Plaintiffs-Appellees,v.UNITED STATES of America, Defendant-Appellant. ...
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984 F.2d 340 142 L.R.R.M. (BNA) 2388, 124 Lab.Cas. P 10,531 SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS,Plaintiff-Defendant in Intervention-Appellee,v.BERRY CONSTRUCTION, INC., Defendant-Appellant,andL & M Plumbing, Inc., Plaintiff in Intervention-Appellant.SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS,Plaintiff-Defendant-Intervenor-Appellee,v.BERRY CONSTRUCTION, INC., Defenda...
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Appellants-defendants and appellants-in-tervenors-defendants (this court previously held them to have a right to intervene as parties affected by the settlement) appeal the district court’s order interpreting a settlement agreement between appellees-plain-tiffs and appellants-defendants. At issue is a term in the settlement agreement that the parties neglected to define. The elusive term is “nonwi...
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Hugo Rincon was convicted on two counts of unarmed bank robbery. On appeal, he contends that the district court erred in refusing to admit expert testimony regarding the reliability of eyewitness testimony. He also argues the district court committed error when it allowed the jury to view Rincon next to a surveillance photograph after jury deliberations had begun. The district court had ju...
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984 F.2d 1025 36 ERC 1089, 23 Envtl. L. Rep. 20,558 KEY TRONIC CORPORATION, a Washington Corporation, Plaintiff-Appellee,v.UNITED STATES of America; United States Department of theAir Force; Donald B. Rice, Secretary of theUnited States Air Force, in his officialcapacity, Defendants-Appellants. No. 91-36021. United States Court of Appeals,Ninth Circuit. Argued and Submitted N...
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985 F.2d 446 STANDARD FIRE INSURANCE COMPANY and Aetna Casualty & SuretyCompany, Inc., a Connecticut corporation,Plaintiffs-Appellants,v.PEOPLES CHURCH OF FRESNO, a California corporation,Defendant-Appellee. No. 90-16213. United States Court of Appeals,Ninth Circuit. Argued Dec. 6, 1991.Submission deferred Dec. 27, 1991.Resubmitted: Jan. 15, 1993.Decided Jan. 28, 1993. ...
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Craig Von Mitchell appeals his sentence imposed under the United States Sentencing Guidelines following our remand in United States v. Shields, 939 F.2d 780 (9th Cir.1991). Von Mitchell’s original appeal was consolidated with that of codefendant Jon Barton Shields. Von Mitchell was convicted by guilty plea of introducing steroids in interstate commerce without a prescription and aiding and abet...
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12 Cal.App.4th 1174 (1993) 16 Cal. Rptr.2d 267 THE PEOPLE, Plaintiff and Respondent, v. WILLIAM ERIK MONROE, Defendant and Appellant. Docket No. A053694. Court of Appeals of California, First District, Division Two. January 27, 1993. *1177 COUNSEL Marvin Kayne, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assi...
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Opinion Introduction Plaintiff Stanley M. Seidler appeals from an order of dismissal entered after the trial court sustained without leave to amend a demurrer to plaintiffs first amended complaint. *1232 Statement of Facts The facts as alleged in plaintiff’s first amended complaint, which are deemed to be true (Thompson v. County of Alameda (1...
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Opinion Here we hold that where a person has been committed as a mentally disordered sex offender (MDSO), the maximum term of commitment under Welfare and Institutions Code 1 section 6316.1 does not run while the person is on outpatient status. We grant the People’s petition for a writ of mandate. Facts Charles Edward Henry was convicted of one count of child molestation (Pen. Code, § 288...
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Opinion In this case we hold that when a retirement plan administrator determines that a marital judgment dividing community interests in the plan is not a qualified domestic relations order (QDRO) as defined by federal law, state and federal courts have concurrent jurisdiction to review that determination. In 1988, the Laborers Pension Trust Fund for Northern California (Fund) was joined as ...
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Opinion I. Introduction Raul Fabela and Teddy Lapina appeal from the judgments entered following a jury trial in wMch they were convicted of second degree robbery in wMch Mr. Lapina used a firearm. (Pen. Code, §§ 211, 12022.5,12022, subd. (a)(1).) Mr. Fabela admitted that he had suffered a prior felony conviction for wMch he served a separate prison term. (Pen. Code, § 667.5, subd. (b).) Mr. ...
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Opinion Introduction Appellant and real party in interest, Azusa Land Reclamation Company, Inc. (ALR), appeals from a final judgment denying its motion for a supplemental writ of mandate to direct the State Water Resources Control Board (State Board): (1) to set aside the State Board’s reversal of its own previously granted approval of ALR’s application for revised waste discharg...
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This matter represents yet another chapter in the litigation over rights to the waters of the Carson and Truckee Rivers. See, e.g., Nevada v. United States, 463 U.S. 110, 108 S.Ct. 2906, 77 L.Ed.2d 509 (1983); United States v. Alpine Land & Reservoir Co., 697 F.2d 851 (9th Cir.), cert. denied, 464 U.S. 863, 104 S.Ct. 193, 78 L.Ed.2d 170 (1983). We are here conce...
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984 F.2d 1040 61 USLW 2514 UNITED STATES of America, Plaintiff-Appellee,v.Brian Edward HENLEY, Defendant-Appellant. No. 91-10439. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 17, 1992.Decided Jan. 29, 1993. Jared O. Smith, Tempe, AZ, for defendant-appellant. Michael J. Bidwill, Asst. U.S. Atty. (argued), Phoenix, AZ, for plaintiff-ap...
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984 F.2d 1050 61 USLW 2500, Fed. Sec. L. Rep. P 97,335 In re: LYONDELL PETROCHEMICAL COMPANY SECURITIES LITIGATION.Joseph H. LEVIT; Walter Bely; Elsie Bely; The Elsie BelyIRA; Lucy Feder; Rosalind Jacobson; RonaldKassover; Hedy-Ann Kassover,Plaintiffs-Appellants,v.LYONDELL PETROCHEMICAL COMPANY; Bob G. Gower; Fred P.Rullo; Dan F. Smith; Robert E. Wycoff; Atlantic RichfieldCo....
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AMENDED OPINION BACKGROUND In 1980, at the age of 17, Volker Keith Meinhold enlisted in the United States Navy. Over the last twelve years, Meinhold has established a reputation for being a dedicated and disciplined sailor. As such, he earned his position as a Naval airborne sonar analyst and instructor. He has consistently received outstanding evaluations and has never been the subj...
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Opinion Plaintiff Lula Wallace (plaintiff) appeals from a judgment of nonsuit entered in her action against defendants the City of Los Angeles (the City) and Detective Donald Richards (Detective Richards). Detective Richards is a member of the City’s police department. The sole cause of *1388 action alleged against defendants was for the negligent wrongful death of plaintiffs 18-year-old daug...
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Opinion Kenneth and Sally Wagner petition for a writ of mandamus compelling the Orange County Superior Court to vacate its order denying an extension of a discovery cutoff date set by the court in their products liability case against General Motors Corporation (GM). The case is in the court’s expedited trial program. The Wagners contend the trial court erred in setting a discovery cutoff date ...
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Opinion Plaintiff was injured in a traffic accident in which her foster daughter was killed. Defendants contend the trial court erroneously allowed plaintiff to recover damages for the emotional distress she suffered from witnessing the fatal injuries to her foster daughter. Defendants also contend the court erred when it refused to allow them to present evidence on the lack of seat belts in pl...
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Opinion Shortly after giving birth to her daughter in 1982, appellant, Sheri R. Traxler, received a blood transfusion. By 1988, when Sheri Traxler first learned that she, tragically, had become one of the approximately 600,000 women worldwide who are now afflicted with Acquired Immune *1326 Deficiency Syndrome (AIDS), the human immunodeficiency vims (HIV) had been identified ...
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12 Cal.App.4th 1407 (1993) 16 Cal. Rptr.2d 305 J. DAVID NICK, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES et al., Defendants and Respondents. Docket No. A054300. Court of Appeals of California, First District, Division One. January 29, 1993. *1410 COUNSEL Hancock, Rothert & Bunshoft, Paul J. Killion and Kathleen E. Justice for Plaintiff and Appellant. Daniel E. Lungren, Attorney ...
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In this case, the Catawba Indian Tribe (the Tribe) alleges a series of wrongful acts by the United States Government which, the Tribe contends, caused substantial financial harm to the Tribe through the loss of some, if not all, of their ancestral lands. After having failed in its effort to recover the actual lands themselves,1 the Tribe now asks compensation for the loss, and, on the basis of the...
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Opinion I. Introduction Santa Ana’s Bristol Street has been described by the city’s mayor as “the biggest embarrassment” in the county. City council members have termed it *1338 a “disaster,” “troubled,” and in need of “help.” Residents of the city have described it as “unsightly, congested,” and a “mess.” The street was developed as a residential area in the 10 yea...
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Defendant Janice Penny-Feeney and her husband, co-defendant Sean Feeney, appeal the district court’s denial of their various motions to suppress physical evidence in their federal drug and firearm prosecution. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. The Feeneys’ appeal was timely filed under Fed.R.App.P. 4(b). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm....
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984 F.2d 1518 61 USLW 2494, 16 Employee Benefits Cas. 2013 GENERAL AMERICAN LIFE INSURANCE COMPANY, Plaintiff-Appellant,v.Lee CASTONGUAY, Jerry Fitzpatrick, Charles Kilmer, et al.;Alex G. Sieben, Defendants-Appellees. No. 91-16072. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 20, 1992.Decided Feb. 1, 1993. Andrew W. Lafrenz, William R. Hill...
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985 F.2d 451 140 P.U.R.4th 461, Util. L. Rep. P 13,917,23 Envtl. L. Rep. 20,687 SAYLES HYDRO ASSOCIATES, a California General Partnership;Joseph M. Keating, Plaintiffs-Appellees,v.W. Don MAUGHAN; Darlene E. Ruiz; Danny Walsh; Edwin H.Finster; Eliseo M. Samaniego, Defendants-Appellants,State Water Resources Control Board, Intervenor-Appellant. No. 91-15934. United States Court o...
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This action for patent infringement and inducement to infringe relates to the use of a patented medical device in violation of a “single use only” notice that accompanied the sale of the device. Mallinckrodt sold its patented device to hospitals, which after initial use of the devices sent them to Medi-part for servicing that enabled the hospitals to use the device again. Mallinckrodt claimed t...
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Opinion In this case we are called upon to determine whether the police pursuit policy adopted by the City of Perris Police Department complies with Vehicle Code section 17004.7 1 such that defendant is immune from any liability for the death of plaintiffs’ decedent. The trial court, on defendant’s motion for summary judgment, concluded that the policy in question complied with...
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*1586 Opinion Wendy Davaris (appellant) appeals the dismissal of her wrongful termination action against Vasa Cubaleski (respondent) entered after the trial court sustained a demurrer without leave to amend. 1 We accept as true the allegations of appellant’s complaint. (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 747 [7 Cal.Rptr.2d 808, 828 P.2d 1195, A.L.R.4th 2575].) Appell...
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OPINION The bankruptcy court held that the debt- or’s payment made pursuant to a civil contempt order was a voidable preference under 11 U.S.C. § 547 1 , We AFFIRM. I.FACTS Debtor/Appellee Dale Mantelli (“Mantel-li”) and Appellant/Creditor Shari Babitzke (“Babitzke”), formerly husband and wife, executed a marital settlement agreement which was made a part of their divorce decree. Purs...
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OPINION John Luther Johnston appeals an order of the bankruptcy court for conversion from a Chapter 11 bankruptcy case to one under Chapter 7 based on the inability of the debtor to propose an effective plan of reorganization. We affirm. STATEMENT OF THE FACTS The debtor John Johnston owned a trucking and hauling company. In 1986 Johnston sold his business to his nephew Bradley ...
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984 F.2d 1533 UNITED STATES of America, Plaintiff-Appellee,v.Rogab S. TAWAB, Defendant-Appellant. No. 91-50537. United States Court of Appeals,Ninth Circuit. Submitted Jan. 7, 1993.*Decided Feb. 2, 1993. Mitchell W. Egers, Hanson & Egers, Los Angeles, CA, for defendant-appellant. Russell G. Petti, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee. ...
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California state prisoner Palmer appeals from the district court’s denial of his petition for habeas corpus pursuant to 28 U.S.C. § 2254. Palmer challenges his conviction for second degree murder and assault with a deadly weapon on the ground that the selection of his jury violated the requirements of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) (Batson). This appeal pr...
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985 F.2d 459 RICO Bus.Disp.Guide 8233 EMPIRE BLUE CROSS AND BLUE SHIELD; Blue Cross and BlueShield of Connecticut, Inc., Plaintiffs-Appellees,v.JANET GREESON'S A PLACE FOR US, INC., Defendant,Bellflower Doctors Hospital; Los Angeles DoctorsCorporation, dba Los Angeles Doctors Hospital,Defendants-Appellants. No. 92-56272. United States Court of Appeals,Ninth Circuit. Argued an...
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Opinion Appellant and plaintiff Jeff L. Preach doing business as Terrace Realty Company (plaintiff), appeals from a judgment entered in favor of respondents and defendants Monter Rainbow, Gray Family Corporation and Dudley Gray, Sr. (Gray) (collectively defendants) after their motion for summary judgment was granted. *1446 In a fifth amended complaint (the complaint), plaint...
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Opinion This case involves plaintiff Tri-Continent International Corporation’s (Tri-Continent) attempt to buy unimproved land from defendant Paris Savings and Loan Association (Paris), later declared insolvent. Tri-Continent appeals the summary judgment in favor of defendants American Federal Bank, F.S.B. (American Federal) and the Federal Deposit Insurance Corporation (FDIC) as receiver ...
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Opinion Statement of the Case Hardistene Howard filed a petition with the State Bar of California seeking reimbursement of the sum of $1,000 from the Client Security Fund 1 as the sum he paid to Attorney Charles B. Johnson for the purpose of hiring him to process a claim for attorney malpractice. He sought reimbursement on the basis that Mr. Johnson had neither pursued the claim nor refunde...
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Opinion Introduction Respondent Robin L. Moomjian, a Georgia resident, was convicted in Georgia of two driving under the influence of alcohol (DUI) offenses more than five years apart. Georgia treats DUI offenses more than five years apart as first offenses, and first offenders’ licenses remain valid if they complete a basic drinking driver program. Because Moomjian completed such programs, h...
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Opinion The People appeal following the defendants’ successful motion to set aside the information pursuant to Penal Code section 995. 1 The motion was granted on the grounds that multiple hearsay evidence introduced by the People through a police officer’s testimony at the preliminary hearing was inadmissible under section 872, subdivision (b) (enacted as a part of Prop. 115, ...
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Opinion We reverse an order dismissing Plaintiff Lillian Jurado’s slip-and-fall action against Defendant Toys “R” Us, Inc. Facts Jurado sued Toys “R” Us for personal injuries. The matter was initially set for trial on May 6, 1991, but was continued on the court’s own motion to *1617 July 16. On July 12, Jurado successfully moved for a continuance on the ground that ...
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Opinion I. Introduction Respondents’ trial attorney, Peter M. Williams (Williams), was handed a subpoena for his own deposition on December 13, 1989, by appellant, Richard A. DeSantis (DeSantis), attorney for Robert R. Ruchti II (Ruchti). The subpoena was served during Ruchti’s deposition, in which Williams was doing the questioning. The subpoena set the Williams’s deposition fo...
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Opinion Appellant Clinton Hale Fisher was convicted by a jury of two counts of violating Penal Code section 422, which makes it a crime to threaten another with death or great bodily injury under certain circumstances, and two counts of violating section 242 (misdemeanor battery). 1 Appellant attacks the constitutionality of section 422 on the ground that the statute is overbro...
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Michael Donine pleaded guilty to four counts of mail fraud in violation of 18 U.S.C. §§ 1841 and 2(b). He was sentenced to 18 months imprisonment, 3 years of supervised release, a fine of $5,000, and restitution of $24,898. He appeals his sentence. We affirm. PROCEEDINGS Between December 1985 and October 1987 Donine was employed as a stockbroker by Paine Webber in Los Angeles, California. Bet...
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This appeal presents the question whether a defendant who buys drugs from an undercover officer should receive a base *1002 offense level under the Sentencing Guidelines that is derived from the quantity of drugs the defendant contracted or conspired to buy, or from the quantity of drugs actually delivered. We conclude that the negotiated amount determines the offense level. I Pheiix Henry ...
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Opinion Statement of the Case On December 2, 1991, respondent Lucio Bemabe Lopez was charged by information filed in Stanislaus County Superior Court with possession of *1734 heroin for sale, a violation of Health and Safety Code section 11351. The information also alleged Lopez served a prior prison term within the meaning of Penal Code 1 section 667.5, subdi...
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Opinion Appellants Joseph Raul Uribe (Uribe) and Jorge Adrian Nunez (Nunez) were each charged with one count of transportation of cocaine (Health & Saf. Code, § 11352) and one count of possession of cocaine for sale (Health & Saf. Code, § 11351). As to both counts it was alleged appellants were personally armed with a firearm within the meaning of Penal Code 2 section 12022, su...
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984 F.2d 1056 Jan ACEWICZ, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.Henryk BRELYK, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.Albin CZYZ, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.Tadeusz NOGACKI, Petitioner,v.U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.Andrzej ANDRZELACHAJ, Petitioner,v.U.S. IMMIGRATI...
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OPINION The creditor appeals the bankruptcy court’s authorization of the refiling of a new bankruptcy petition by the debtors after dismissal of a previous petition which was improperly filed within the 180-day period proscribed by 11 U.S.C. § 109(g)(2) 1 . We AFFIRM. *602 I.FACTS The facts are not in dispute. On January 5, 1989, appellant Paul Greenwell (“Green-well”) was awarded...
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Opinion Appellant Hameed A. Khan, M.D., brings this appeal following the denial of his petition for writ of administrative mandamus. (Code Civ. *1838 Proc., § 1094.5.) The superior court ruled in favor of respondent Division of Medical Quality of the Medical Board of California after the court reviewed the findings of a panel comprised of members of the Eleventh District Medi...
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*1755 Opinion In this appeal we address the court’s power under Penal Code 1 section 1170, subdivision (d), to recall a prison sentence and impose a new and different sentence. This power may be exercised by the court only within 120 days of the date of original prison commitment. The court has no discretion or power to extend this 120-day period, its jurisdiction to recall the sentence exp...
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Opinion The issue raised by this petition for writ of mandate is whether the trial court may refuse to rule on the merits of a summary adjudication motion made pursuant to Code of Civil Procedure section 437c, subdivision (f), when such an adjudication would not dispose of an entire cause of action because two separate and distinct wrongfiil acts are combined in the same cause of action. ...
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MEMORANDUM OF DECISION AND ORDER Plaintiffs are California residents who have moved or relocated to the State of California within the past twelve months and seek welfare benefits under the Aid to Families with Dependent Children (“AFDC”) program. 1 California recently enacted a durational residency requirement of one year for full AFDC benefits; until the applicant for AFDC ha...
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Opinion This case presents the following question. When a primary insurer pays $500,000 of its insured’s $1.1 million settlement of a claim against the insured, and when the insured’s excess insurer pays the remaining $600,000 of the claim, and when the insured recovers indemnification of $500,000 from a third party, which of the two insurers is entitled to be reimbursed with the $500,000...
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PPG Industries, Inc. appeals the judgment of the United States Court of International Trade holding (1) that substantial evidence supports the United States International Trade Administration’s (ITA) determination that the parties to the suspension agreement did not receive prohibited countervailable Certificados de Devolución de Impuesto (CEDIs) during the period of review, (2) that Fidelicomi...
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I. Arturo Lopez-Vasquez was deported May 3, 1991. On August 28, 1991, he attempted to enter the United States from Mexico through a border patrol checkpoint. He told border patrol agents he was a United States citizen but had no identification because his wallet had been stolen. Lopez-Vasquez consented to a search of his bag and agents found a card with the name “Arturo Vasquez.” A computer sea...
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Jose Gonzalez-Mendoza (Gonzalez) appeals his conviction of being a deported alien found in the United States in violation of 8 U.S.C. § 1326. We remand. BACKGROUND On October 6, 1987 a person named “Jose Alonzo” was arrested in Los Ange-les, California for possession of cocaine for sale in violation of California Health and Safety Code § 11351. On December 17, 1987 Jose Alonzo entered...
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AMENDED OPINION ON DEFENDANT'S MOTION TO DISMISS COMPLAINT I. INTRODUCTION In this leveraged buyout case the trustee has brought several causes of action against the former owners of the debtor corporation. Defendants have moved to dismiss the entire complaint, under Fed. R.Bankr.P. 7012(b) and Fed.R.Civ.P. 12(b)(6), on the grounds that these causes of action are barred by the two-ye...
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*1693 Opinion Plaintiff appeals from the judgment of dismissal on May 21, 1991, pursuant to Code of Civil Procedure section 583.420, subdivision (a)(2)(A), authorizing discretionary dismissal for unreasonable delay in the prosecution of one’s case; and from the order of July 2, 1991, denying reconsideration and relief under section 473 of the Code of Civil Procedure. We affirm. ...
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*1715 Opinion California Rules of Court, rule 980 1 absolutely prohibits photography or electronic media coverage of courtroom proceedings unless authorized by written order. In this case we are asked to decide whether the confiscation by the court of photographic negatives of a criminal defendant, taken by a journalist in the courtroom in violation of rule 980, runs a...
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Opinion After respondent superior court dismissed all but one count of the criminal information filed in this case, the People petitioned this court to issue a writ of mandate and requested that the trial of real party in interest Miguel Angel Quinteros (defendant) be stayed until this court determined the merits of the petition. We have stayed the trial proceedings and issued an alternat...
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Opinion Defendant and respondent Nick Pappalardo (respondent) was charged by plaintiff and appellant People (appellant) with seven counts of grand theft (Pen. Code, § 487, subd. 1), one count of attempted grand theft (Pen. Code, § 487, subd. 1), three counts of selling unregistered securities (Corp. Code, §§ 25110, 25540), three counts of securities fraud (Corp. Code, § 25541), and three ...
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The Secretary of Labor appeals the district court’s award of pre- and post-judgment interest on damages awarded to Barbara Reynolds in her wrongful discharge suit under the Rehabilitation Act. We hold that the Civil Rights Act of 1991 entitles Reynolds to pre- and postjudgment interest on her award. Thus, we affirm. BACKGROUND Plaintiff-appellee Barbara Reynolds was an employee of the Depa...
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ORDER REVERSING IN PART, AFFIRMING IN PART, AND REMANDING IN PART Appellants Ranadive et ah, Plaintiffs in the Bankruptcy proceedings, initiated two complaints to determine the non-discharge-ability of their claims against Bankruptcy Defendants H. Beck Grabau (“Grabau”) and Vincent Brown (“Brown”). The cases were consolidated and tried in the Bankruptcy Court before the Honorable Marilyn ...
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OPINION The debtor Richard Anderson appeals an order of the bankruptcy court granting summary judgment in favor of the United States of America and holding that the debtor’s interest in an ERISA retirement trust is subject to a federal tax lien. We affirm. STATEMENT OF THE FACTS The facts in this case were either stipulated or are not disputed. On October 13, 1987, Richard Ander...
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Opinion Shannon Hopson appeals a judgment on his two convictions of taking or driving a vehicle (Veh. Code, § 10851). In CR94974 in March 1988 Hopson was found in a stolen Datsun. In CR97210 on July 17, 1988, he was driving a stolen Toyota with a switched vehicle identification number. Hopson entered negotiated guilty pleas in both cases conditioned on being “sentenced to no more than the mid...
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Opinion Christward Ministry (Christward), a nonprofit corporation owning 640 acres of land located to the east of the San Marcos Landfill (Landfill), appeals a judgment entered upon Christward’s petition for a writ of mandate challenging the adequacy of an environmental impact report (EIR) prepared by the County of San Diego (County) in connection with a planned vertical and horizontal expansio...
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Opinion In this opinion we consider whether a defendant may inspect his probation file. On May 4, 1992, petitioner through counsel requested from the probation department a copy of his own probation file under the provisions of the Public Records Act. (Gov. Code, § 6250 et seq.) On May 26, 1992, the department through its counsel, the city attorney, refused the request contending that the rec...
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Defendant-appellant James Michael Brown challenges the district court’s refusal, in sentencing him following his convic *480 tion on three counts of bank robbery, to depart downward from the applicable guideline range. Because we conclude that the district court acted under the erroneous impression that it lacked authority to depart, we vacate Brown’s sentence and remand his case for resentenci...
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MEMORANDUM OF DECISION John F. Znider and Janet Znider (“Debtors”) claim that 11 U.S.C. § 545(2) of the Bankruptcy Code (“Code”) permits a debt- or-in-possession, as a hypothetical bona fide purchaser in a Chapter 11 proceeding, to avoid federal tax liens as to property enumerated in 26 U.S.C. §§ 6323(b)(1) and (b)(2) of the Internal Revenue Code (“IRC”). I. STATEMENT OF FACTS T...
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Opinion Plaintiffs and appellants Gregory Galvis (Galvis), Angelica Lopez (Lopez), and Maria Torres (Torres) (collectively, plaintiffs) appeal from a judgment in favor of defendant and respondent Orlando Petito (Petito) based on the grant of the latter’s motion for summary judgment. Because we conclude Petito is liable to plaintiffs under Vehicle Code section 17150 1 as th...
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*118 Opinion Thang Van Nguyen appeals his conviction on multiple counts of robbery, burglary, assault with a deadly weapon, shooting at an occupied building, and false imprisonment, with numerous enhancements. He contends: (1) the abstract of judgment must be corrected to accurately reflect his convictions were for second degree robbery on two counts; (2) his conviction for discharging a weap...
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Opinion This is an appeal from the trial court’s judgment directing the Stanislaus County Board of Supervisors (Board) to place on the 1992 general election ballot a slow-growth ordinance known as Measure F. Respondents on appeal, Save Stanislaus Area Farm Economy and certain named individuals (SAFE), filed a petition for writ of mandate in the trial court. The Board was respondent in that proc...
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Opinion Pursuant to a plea agreement with the People, defendant pled guilty to a charge of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) 1 and admitted the truth of the allegation of firearm use. (§ 12022.5, subd. (a), § 1192.7, subd. (c)(8).) The court sentenced defendant to a four-year aggravated term for the assault with a firearm, and a consecutive five-year enhancement for the ...
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Opinion Defendant Pedro Maestas Martinez was charged in an information in count I with kidnapping for robbery (Pen. Code, § 209, subd. (b)) 1 ; *25 in count II with robbery (§ 211); in counts III through VI with rape (§261, subd. (2)); in counts VII through X with sodomy (§ 286, subd. (c)); in count XI with oral copulation (§ 288a, subd. (c)); and in count XII with dissuading a witness from...
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Opinion A provision in an agreement allows for the recovery of attorney fees to the prevailing party in any action or proceeding arising out of the agreement. Here we hold that such a provision permits attorney fees to the prevailing party in a tort cause of action under Code of Civil Procedure section 1021. George and Jane Ward (the Wards) appeal from the trial court’s denial of the...
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The Supreme Court, — U.S. -, 113 S.Ct. 314, 121 L.Ed.2d 235, remanded this case for further consideration in light of Patterson v. Shumate, 504 U.S. -, 112 S.Ct. 2242, 119 L.Ed.2d 519 (1992). We hereby withdraw our previous Opinion in this case, filed December 11, 1991, and substitute this Opinion. In light of Shumate, we now reverse. BACKGROUND Mr. Reed appeals the determination that h...
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Opinion Procedural History By information, appellant and codefendant Ronald Thompson 1 were charged with one count (count 1) of murder, a violation of Penal Code section 187, subdivision (a), 2 and two counts (counts 2 and 3) of attempted murder, violations of sections 664 and 187, subdivision (a). As to each count it was also alleged that a principal in the offense was armed with a firea...
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Opinion acre lot in the Santa Monica Mountains, overlooking Tuna Canyon and the Pacific Ocean. What he had in mind was building a modest, three-bedroom home for his family. What he got was a long-term nightmare. Facts Healing’s property (located at 2640 South Chard Avenue, in the County of Los Angeles) is within the inland boundaries of the coastal zone and is regulated by the Ca...
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OPINION Plaintiffs, Doris Smallwood and Marla Gladney-Smallwood, .on behalf of various alleged heirs and dependents, bring this action for the alleged wrongful death of Lloyd C. Smallwood. Mr. Smallwood was a professional welder who ignited a high pressure hydraulic gas line while working on an oil tanker and died in the ensuing fire. Plaintiffs bring this action under the general maritime law as...
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delivered the opinion of the Court. This case requires us to consider whether disclosure of the home addresses of federal civil service employees by their employing agency pursuant to a request made by the employees’ collective-bargaining representative under the Federal Service Labor-Management Relations Statute, 5 U. S. C. §§7101-7135 (1988 ed. and Supp. IV), would constitute a “clearly unwarran...
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Opinion involving conflicting child custody orders of the courts of France and Texas. Father, Dan Alexandre Zenide, petitioner herein, seeks to enforce a Texas child custody order awarding him custody of his two minor daughters. Mother, Rita Ignaccolo, real party in interest herein, seeks to enforce a French child custody order awarding her custody of her two minor daughters. Respondent co...
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*1309 Opinion counts of robbery (Pen. Code, 1 § 211) while personally armed with a firearm (§ 12022.5, subd. (a)) and admitted that he had been three times in possession of a firearm while a convicted ex-felon (§ 12021.1, subd. (a)). He also admitted suffering prior felony convictions of rape while armed with a firearm (§§ 261, 12022, subd. (a), 667.5, subd. (a)), robbery (§§ 211, 667.5, su...
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Opinion Ocean just offshore from the private beach owned by the Cyprus Shore Community Association in San Clemente include riptides, submerged rocks and a hazardous drop-off. A friend of a guest at a beach party was badly injured in that surf, and brought this lawsuit against the association and the homeowner who allowed the beach party to take place, charging them with failing to warn him...
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Opinion found 17-year-old Rodrigo O. to be a fit subject to be dealt with under juvenile court law. The People contend the court erroneously based its finding on irrelevant alibi evidence and that Rodrigo failed to rebut the presumption of unfitness under Welfare and Institutions Code 1 section 707, subdivision (c). 2 We agree and grant the petition. Factual and Procedural Background T...
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Opinion Alyssa, free from his parental custody and control pursuant to Civil Code former section 232, subdivision (a)(2) and (a)(7). 1 The minor was adjudicated a dependent child of the juvenile court prior to January 1, 1989. (See *1251 Welf. & Inst. Code, § 366.26 [procedures applicable to minors adjudicated dependent children on or after Jan. 1, 1989].) Appellant...
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Opinion I. Introduction “Do you have any legal cause to show why judgment should not be pronounced against you?” *1238 Many attorneys have heard these words spoken prior to imposition of sentence in criminal proceedings, without giving much thought to what the question means. The inquiry, which is called “allocution,” has ancient roots in the common law and is statutori...
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Opinion robbery and assault, claiming error in the admission of his confession, insufficiency of evidence, sentencing error, and a due process violation in the “reasonable doubt” instruction. We find no error and affirm the judgment. Factual and Procedural Summary This case involved four separate incidents. On the afternoon of July 11, 1992, an altercation arose between appellant and several indiv...
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Opinion by another attorney for improperly withdrawing money held in a joint account pending resolution of a fee dispute between them. The petitioner, then represented by counsel, was deposed and, at the deposition, he was asked “legal contention” questions, calling upon him to state all facts, list all witnesses and identify all documents that support the affirmative defenses he had asser...
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*1275 Opinion I. Background This is an appeal from a judgment granting a motion to confirm an arbitration award pursuant to Code of Civil Procedure section 1286. 1 Plaintiffs are seven residents of the Stallion Meadows Mobile Home Park: Lydia McGregor; Barbara Robinson; Michael Robinson; David Seim; Pamela Seim; Jerald Vincent; and Marilyn Jewell-Vincent as well a...
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Opinion Defendant Clinton Anthony Martin appeals from the judgment entered after his conviction for first degree murder. He charges instructional and other trial court error. We affirm. *78 Statement of Procedure A jury convicted the 18-year-old defendant of murder in the first degree and found true the enhancements as alleged in the information: discharge of a firearm at an occupied mo...
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Opinion ment in favor of defendants, Sedgwick, Detert, Moran & Arnold and Lenore Duncan. We determined that the notice of appeal was not timely filed. Accordingly, the appeal is dismissed. On October 28, 1993, defendants served a notice of entry of judgment. Additionally, defendants likewise served a notice of ruling concerning the denial of plaintiff’s various posttrial motions. Both...
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510 U.S. 471 (1994) FEDERAL DEPOSIT INSURANCE CORPORATION v. MEYER No. 92-741. Supreme Court of United States. Argued October 4, 1993. Decided February 23, 1994. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *472 THOMAS, J., delivered the opinion for a unanimous Court. Deputy Solicitor General Bender argued the cause for petitioner. On the briefs were Solicitor General Da...
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843 F.Supp. 616 (1994) Harol BEISEL and Wilma Beisel, Plaintiffs, v. AID ASSOCIATION FOR LUTHERANS, Defendants. And Related Cross-Actions. No. SACV 93-1049-GLT. United States District Court, C.D. California. February 9, 1994. *617 Richard L. Scott, Timothy P. Prince, Wilson, Borror, Dunn, Scott & Davis, San Bernardino, CA, for plaintiffs. Radcliff, Rose & Frandsen, Richard P. Tricker, Los...
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843 F. Supp. 614 (1994) Steven C. TEITELBAUM, Plaintiff, v. Warren J. SOLOSKI, etc., et al., Defendants. No. CV 94-0013 AWT. United States District Court, C.D. California. February 8, 1994. Jeffrey A. Slott, Andrew W. Hawthorne, Slott & Diamond, Encino, CA, for plaintiff. Rodney M. Perlman, Stephen M. Cohen, Joi C. True, Wehner and Perlman, Los Angeles, CA, for defendants Warren J. Soloski, a...
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Opinion I. Introduction Bruce Shpiller (cross-complainant) purports to appeal from an order and “notice of ruling” announcing the dismissal, pursuant to Code of Civil Procedure sections 583.410 and 583.420, 1 of both his cross-complaint against Harry C’s of Redlands (cross-defendant) and cross-defendant’s complaint against him. A “notice of ruling” is not an appealable judgment or order a...
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*1184 Opinion I. Introduction Vincent Leroy Smith (defendant) was found guilty, following a jury trial, of robbery (Pen. Code, § 211) 1 and kidnapping (§207), a lesser offense necessarily included in the charged offense of kidnapping for robbery. The jury also found to be true the sentence enhancement allegations that (1) defendant personally used a deadly and dangerous weapon, to wit, ...
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Opinion Deane Gardenhome Association (the Association) filed suit against Haluk and Mary Denktas for injunctive relief and damages after the Denktases allegedly painted their house in violation of the Association’s *1396 restrictive covenants (CC&R’s) encumbering the Denktases’ property. The CC&R’s contained an attorney fees provision. The trial court entered judgment in favo...
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Opinion Plaintiff Gloria Dolan appeals from the summary judgment dismissing her medical malpractice case against defendant Lawrence Borelli, M.D., on limitations grounds. We affirm the judgment. Facts Dolan, a 3-M Company factory worker, injured her right wrist at work in June 1984. Dolan’s symptoms, pain radiating to her right shoulder and numbness, tingling, and sharp stabbing...
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Opinion Touche Ross & Co. (Touche) appeals from an order granting the motion of plaintiff and cross-appellant Industrial Indemnity Co. (Industrial) for a new trial on the issue of damages. It contends that the trial court abused its discretion in granting the motion. Applying the Supreme Court’s recent *1089 decision in Bily v. Arthur Young & Co. (1992) ...
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Opinion By these consolidated appeals, appellant Sheila Donahue Miller seeks to reverse a judgment of dismissal of her petition for writ of mandate. She also seeks review of the denial of her request for a preliminary injunction to enjoin construction of a beachfront hotel following issuance of a building permit by respondent City of Hermosa Beach (the City). The hotel project was underta...
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Opinion Charles Philip Lathrop appeals the trial court’s denial of presentence credits in imposing a 16-month prison sentence for his drunk driving conviction. We affirm the judgment of conviction, but remand to allow a proper award of credits. On May 17, 1991, Lathrop was arrested in Riverside County on an assault charge and bail was set at $20,000. The same day, Orange County placed a *140...
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Opinion The question before us is whether a plaintiff in pursuit of an award of punitive damages can satisfy her obligation to present evidence of the defendant’s financial condition without some proof of his net *1063 worth or something akin to “net worth.” We hold that where, as here, the evidence is limited to proof of the defendant’s annual income, there is insufficient evidence to suppor...
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delivered the opinion of the Court. This is yet another dispute arising out of legislative redistricting and reapportionment. See, e. g., Growe v. Emison, ante, p. 25. Today we consider whether Ohio’s creation of several legislative districts dominated by minority voters violated §2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U. S. C. § 1973. I Under the Ohio Constitu...
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Opinion In this action for attorney malpractice plaintiff Joyce Hensley appeals from a summary judgment in favor of defendant William Caietti predicated upon the bar of the statute of limitations, Code of Civil Procedure section 340.6. The gist of her claim is that defendant *1168 William Caietti committed malpractice by inducing her to enter into a binding unfavorable marital settlement agre...
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*1475 Opinion In this writ proceeding, we consider whether a cause of action is stated for wrongful termination in violation of public policy when the employer’s conduct is not specifically prohibited by a statutory or constitutional provision. We conclude that such a provision is a foundational requirement to establish wrongful termination on public policy grounds. Accordingly, we hold that ...
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delivered the opinion of the Court. We granted certiorari to decide whether a federal court may apply a “heightened pleading standard” — more stringent than the usual pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure — in civil rights cases alleging municipal liability under Rev. Stat. § 1979, 42 U. S. C. § 1983. We hold it may not. We review here a decision granting ...
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ORDER The opinion filed August 21, 1992, 973 F.2d 752, is amended as follows: The first full sentence of the slip opinion at page 10044 (973 F.2d at 758): “The decision also indicated that without these amendments the marketing order should be terminated. Id.” is deleted. Appellee’s petition for rehearing and clarification is DENIED. ...
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delivered the opinion of the Court.1 This case requires us once again to interpret the provisions of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970, Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U. S. C. §§ 1961-1968 (1988 ed. and Supp. II). Section 1962(e) makes it unlawful “for any person employed by or associated with any en...
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Opinion This is a defendants’ appeal from a judgment after a court trial in an action for breach of contract to pay a real estate broker’s *1593 commission and for damages for interference with contract relations and conspiracy to interfere with contract relations. Defendant John L. Sullivan entered into a written agreement to pay a commission if he purchased property presented to him by R. J...
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Opinion The plaintiff in this matter, Pacific States Enterprises, Inc. (Pacific), appeals from the dismissal of its first amended complaint as against two defendants pursuant to section 581, subdivision (f)(1) and (2) of the Code of Civil Procedure after their demurrers to the first amended complaint were sustained. 1 On appeal, Pacific contends that: (1) With regard to the def...
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*686ORDER Previously pending on this court’s law and motion calendar for January 7, 1993, was plaintiff’s motion to compel production of documents and further answers to interrogatories. The parties filed a timely stipulation regarding their discovery disagreement, pursuant to E.D.Cal.R. 251(c). The court has carefully reviewed the moving papers and heard oral argument, and hereby issues the foll...
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Pan-Pacific and Low Ball Cable Television Company appeals from the district *596court’s order imposing sanctions in the amount of $161,720.36, pursuant to Fed. R.Civ.P. 11. The issue of sanctions was before the district court on remand, following our reversal of the imposition of sanctions on Farrow, Schildhause & Wilson, the law firm representing Low Ball. See Pan-Pacific and Low Ball Cable Telev...
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The United States government appeals the decision of the district court to release Michael Howard Hunter from observation and treatment at the Federal Medical Center at Rochester, Minnesota. The major issue in this appeal is whether the court may grant a defendant’s pro se motion for a discharge hearing under 18 U.S.C. § 4247(h) (1988) once he has been committed to a psychiatric facility under 18...
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I. OVERVIEW A jury convicted appellant Jose Arambu-la-Ruiz (Arambula) for conspiracy to possess a controlled substance with intent to distribute, possession of a controlled substance with intent to distribute, and aiding and abetting in violation of 21 U.S.C. § 841(a)(1) (1984), 21 U.S.C. § 846 (1984) and 18 U.S.C. § 2 (1979). He was sentenced to a ninety-month jail term followed by four year...
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986 F.2d 1568 81 Ed. Law Rep. 439, 23 Envtl. L. Rep. 20,691 MT. GRAHAM RED SQUIRREL, (Tamiasciurus hudsonicusgrahamensis), an endangered species; National AudubonSociety, a non-profit corporation; Sierra Club, Inc.;National Wildlife Federation, a non-profit association,Arizona Wildlife Federation, a non-profit corporation;Maricopa Audubon Society, a non-profit association; TucsonAudubon...
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dissenting to grant of petition for rehearing: The fact is that the district court did apply our five-part test as set forth in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986) and specifically determined that, among other things, there was no reasonable possibility that this particular introduction of extrinsic information, if it occurred, affected the verdict. The majority believes that D...
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988 F.2d 883 61 USLW 2557 Howard T. KREISNER, et al., Plaintiffs-Appellants,v.CITY OF SAN DIEGO, Defendant-Appellee. No. 90-55354. United States Court of Appeals,Ninth Circuit. Argued April 3, 1991.Submission Deferred April 3, 1991.Submitted Feb. 19, 1993.Decided March 3, 1993. Michael A. Jacobs, John F. Delaney, Susan St. Amour, Morrison & Foerster, San Francisc...
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Opinion Charles Lee Graham (plaintiff) appeals after the trial court, sitting as fact finder, concluded that the machine which caused injury to plaintiff was not a “power press” within the meaning of Labor Code section 4558. 1 That section creates an exception to the exclusive remedy provision of the workers’ compensation system. (§ 3602; Bingham v. CTS Corp. ...
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Opinion In this case, we apply Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d, 834 P.2d 696] and conclude that the trial court erred in granting summary judgment against appellant on the now rejected doctrine of implied reasonable assumption of the risk. Factual and Procedural Summary Since this case reaches us after a full grant of summary judgment ...
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Opinion The sole issue in this appeal is whether the trial court properly imposed a five-year sentence enhancement under Penal Code section 667, subdivision (a). (All further statutory references are to the Penal Code unless otherwise noted.) Gregory Byron Bow argues that his current offenses are not serious felonies within the meaning of section 667, subdivision (a) and therefore do not ...
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Opinion Petitioners seek a peremptory writ of mandate to compel respondent court to reconsider its ruling denying real party in interest’s, Pacific Club Homeowners Association (PCHOA), motion for a determination a settlement was made in good faith. The trial court denied the motion out of concern over the binding effects of any such finding on nonparty, nonparticipating insurers based on ...
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Opinion The matter before us consists of a separate appeal by each of four criminal defendants who were tried together. By name, the four defendants are David James Farrow (David), Douglas Gregory Farrow (Douglas), David Wayne Jackson (Jackson) and Keith Benjamin Fletcher (Fletcher).1 In general terms, all four defendants were charged by a three-count information that set forth allegations of fir...
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Opinion The question on this appeal is whether a recorded abstract of judgment attaches to property previously conveyed by an unrecorded quitclaim deed. It does not. Facts In March 1979, a money judgment later assigned to Dudley Gray was entered against Scott Berglund. In September 1979, Berglund and his partner, Daniel Casey, purchased real property in San Pedro. On February 1,...
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987 F.2d 618 UNITED STATES of America, Plaintiff-Appellee,v.Jose Natalio MARTINEZ-GUERRERO, Defendant-Appellant. No. 92-50118. United States Court of Appeals,Ninth Circuit. Submitted Dec. 11, 1992*.Decided March 4, 1993. Janice R. Mazur, San Diego, CA, for defendant-appellant. David P. Curnow, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee. Appeal fr...
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Attorney Stephen Yagman appeals from two orders of the district court for the Central District of California: (1) denying a motion to recuse Chief Judge Manuel Real of that district from a case in which Yag-man was both a party and counsel for himself, and (2) imposing sanctions on Yag-man for certain acts and omissions made during the consideration of that motion. The district court had j...
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987 F.2d 608 25 Fed.R.Serv.3d 421 Raymond PEDRINA, et al., Plaintiffs-Appellants,v.Han Kuk CHUN; Y.Y. Valley Corp.; Tetsuo Yasuda; RobertCarter; Masanori Kobayashi; Yoshinori "Ken" Hayashida;City and County of Honolulu; Frank F. Fasi, Mayor; HiroshiKobayashi; Eugene Lum; Nora Lum; Ernest Souza,Defendants-Appellees. No. 92-15065. United States Court of Appeals,Ninth Circui...
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Martin Allen Johnson attempts to appeal the district court’s denial of his former Rule 35(a) motion to correct his sentence. Specifically, Johnson contends that our decision in United States v. Gomez, 911 F.2d 219 (9th Cir.1990), renders illegal the sentence imposed for his conviction on Count Three of the Indictment, a violation of 18 U.S.C.App. § 1202(a) (“Convicted Felon in Posses...
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Fulton appeals from his sentence under the Sentencing Guidelines following his guilty plea to abusive sexual contact with a minor on an Indian reservation, in violation of 18 U.S.C. §§ 1153 and 2244(a)(3). He contends that the district court erred in assigning to him a base offense level of 16 on the ground that he used force within the meaning of U.S.S.G. § 2A3.4(a). He also argues that the dist...
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987 F.2d 611 61 USLW 2562 Dale L. CARTER; David A. Johnson; Fred Emery; James R.Straw, on behalf of all in the State of Idahosimilarly situated, Plaintiffs-Appellees,v.Edward J. DERWINSKI, Secretary of the Department of VeteransAffairs, or his successor, Defendant-Appellant. No. 91-35530. United States Court of Appeals,Ninth Circuit. Argued and Submitted En Banc Sept. 24, 19...
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MEMORANDUM OPINION FACTS In 1970, Hoyt Axton rented a recording studio and hired several musicians to record a demonstration tape of his musical compositions. David Pancost Jackson, Jr. was one of the musicians. There was studio time left after the demonstration tape was recorded, so Axton and the musicians completed the notes and lyrics, and then recorded, a song that Axton was writing. That...
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Opinion This action for personal injuries arose out of an automobile accident. Grace Ramirez (plaintiff) was a passenger in a car driven by her sister, defendant Gloria Pastran, when it was struck by an automobile driven by defendant Cathryn MacAdam. Plaintiff appeals from a judgment in her favor after a jury verdict in the amount of $3,000. Plaintiff raises numerous contentions on appeal relat...
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Opinion Carpenters Health and Welfare Trust Fund for California, and other multiemployer trust funds (the Trust Funds), filed a complaint against David Barry, Community Construction, and Surety Company of the Pacific (Surety). The complaint alleged, as relevant here, that Barry, doing business as Community Construction, had failed to deposit certain fringe benefits into the Trust Funds as...
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Theodore Stephens (petitioner), an Administrative Law Judge (AU), appeals from a decision of the Merit Systems Protection Board (Board), which dismissed his complaint for lack of subject matter jurisdiction. In re Stephens, 52 M.S.P.R. 522 (1992). The Board held that it lacked jurisdiction because Stephens failed to show that the program and course of instruction which his agency required him t...
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In this death penalty case, shortly before trial was to begin, the prosecution gained access to a confidential tape recording that contained details of defense counsel’s trial strategy and references to privileged communications between defendant and his attorney. A member of the prosecution team then unlawfully destroyed the tape recording. This act of destruction prevented the defense from showi...
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Opinion Petitioner Hector Miranda is awaiting trial on charges of unlawful possession of controlled substances while armed with a loaded firearm (Health and Saf. Code, § 11370.1), ex-felon in possession of a firearm (Pen. Code, § 12021, subd. (a)), and possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)). The evidence which is expected to support these charges was...
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Opinion Defendant appeals his conviction by plea of guilty to one count of robbery with a firearm use enhancement also admitted. On *1656 appeal defendant contends that the court erred in refusing to grant his motion for a continuance which he brought on the eve of trial immediately after the court granted his motion to proceed in propria persona (pro. per.) thereby denying his right to effec...
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C. A. 8th Cir. Certiorari granted....
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I Larry Eirven appeals from a sentence for armed robbery. To save trees and our readers’ patience, we dispose of most of Eirven’s claims in an unpublished memorandum. In this opinion, we address only his obstruction of justice argument. Eirven had a long criminal record even before he committed this robbery. He also had a serious drug problem, which his lawyer says made it hard for him to rem...
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Wayde Lynn Kurt brings this appeal from his conviction on consolidated charges of unlawful possession of an unregistered machine gun, in violation of 26 U.S.C. § 5861(d), and failure to appear, in violation of 18 U.S.C. § 3146(a), for which he was sentenced to consecutive imprisonment terms of sixteen and twenty-one months respectively. Kurt contends that the district court erred by denying his...
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John F. Garfield, a federal prisoner, appeals the district court’s denial of his 28 U.S.C. § 2255 motion to vacate his conviction and sentence. Garfield contends: (1) the district court improperly participated in the plea discussion in violation of Fed. R.Crim.P. 11(e)(1); (2) he was denied effective assistance of counsel; and (3) the district court failed to make adequate findings regarding disp...
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In this trademark infringement action Metro Publishing (“Metro”), the publisher of the weekly tabloid Metro, a regular feature of which is a column called “Public Eye,” appeals the district court’s denial of its motion for a preliminary injunction to stop San Jose Mercury News (“Mercury News”) from publishing a competing weekly tabloid called “eye.” We reverse and remand. ...
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John Hoyt Curtis appeals his conviction for discharging a pollutant into the surface waters of the United States in violation of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1311(a), 1319(c)(2)(A). He argues that the CWA does not apply to federal employees whose alleged violations occurred in the course of their employment. We reject the argument. Since Curtis is a “person” subject to the enforcemen...
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987 F.2d 648 UNITED STATES of America, Plaintiff-Appellee,v.Charles Cornelius JAMES, Defendant-Appellant. No. 92-10043. United States Court of Appeals,Ninth Circuit. Submitted Feb. 1, 1993.*Decided March 8, 1993. J. Frank McCabe, Goorjian & McCabe, San Francisco, CA, for defendant-appellant. Rodolfo M. Orjales, Asst. U.S. Atty., San Francisco, CA, for plaintiff...
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Opinion Here we hold that the trial court abused its discretion in denying attorney fees to real parties in interest for defense of a writ of mandate brought pursuant to Elections Code section 5025. We reverse the trial court’s order. Jeffrey Young and Joanne Miller appeal from denial of their motion for attorney fees under Code of Civil Procedure section 1021.5.1 In the spring of 1991 a fierce el...
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*1773 Opinion Mark Fitzpatrick appeals from the denial of his petition to set aside an order by the Department of Motor Vehicles (DMV) suspending his driving privilege for one year for failure to submit to or complete a chemical test of his breath, urine or blood to determine his blood-alcohol level. (Veh. Code, §§ 23157, 13353.) We find Fitzgerald was improperly denied the opportunity to con...
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989 F.2d 1021 Elsie BREWER, individually and as next friend of John GeorgeBrewer, Petitioner-Appellant,v.Samuel LEWIS, Director of the Arizona Department ofCorrections, et al., Respondents-Appellees,John George Brewer, Real Party In Interest. No. 93-99003. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 1, 1993.Decided March 2, 1993. Robert Barte...
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The trial court in this case refused to permit the self-represented defendant to stand mute during the trial. In this respect, the case is indistinguishable from People v. Clark (1992) 3 Cal.4th 41 [10 Cal.Rptr. 554, 833 P.2d 561], in which this court held that a trial court may terminate self-representation if the pro se defendant’s announced intention to stand mute is “part of a deliberate cours...
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The government appeals from the district court’s order granting Singleton’s motion to suppress evidence seized pursuant to a warrantless search of his father’s house. The government challenges the district court’s determination that Singleton had standing to challenge the legality of the search. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this tim...
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David Lee Baldwin appeals his conviction on one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (1988), and two counts of dis *1435 tributing cocaine in furtherance of the conspiracy, in violation of 21 U.S.C. § 841(a)(l)-(b)(l)(C) (1988). He argues that his residence was searched pursuant to an invalid warrant, that the district court improperly ins...
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Michael Sandsness appeals his sentence for selling drug paraphernalia in interstate commerce. He claims that 21 U.S.C. § 857 (1988) (now 21 U.S.C. § 863 (1992)), the statute defining the crime to which he pleaded guilty, is vague and overbroad. He also claims that the sentencing judge erred in enhancing his sentence for his managerial role in the offense because the statute is vague as applied wi...
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George appeals from his conviction after a jury trial for intentionally importing into the United States over 100 grams of heroin in violation of 21 U.S.C. §§ 952(a), 960(a), and 960(b)(2)(A), and possessing with intent to distribute over 100 grams of heroin in violation of 21 U.S.C. § 841(a)(1). George contends that the district court erred in failing to suppress (1) certain statements; (2) evid...
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Jose Luis Garcia was charged with engaging in a continuing criminal enterprise (“CCE”) in violation of 21 U.S.C. § 848, *967 conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, possession with intent to distribute and distribution of cocaine in violation of 21 U.S.C. § 841, unlawful use of a communication facility in violation of 21 U.S.C. § 843, and money laundering in violation ...
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Opinion Juan Lopez (Lopez) appeals following his conviction by jury of arson of an inhabited structure in violation of Penal Code section 451, subdivision (b). On this appeal Lopez asserts the trial judge committed prejudicial error in (1) excusing a juror for cause, (2) failing to instruct the jury properly on the appropriate mental state required for conviction, and (3) failing to instruct th...
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Opinion On October 7, 1992, a petition was filed alleging the minor, Brianna, was at risk of physical and sexual abuse due to her mother’s substance abuse (Welf. & Inst, § 300, subds. (b) and (d)). The child was placed in a confidential foster home. At the detention hearing on December 10, 1992, the minor’s biological father, Brian C., with the concurrence of the department of social serv...
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Opinion Florence H., the natural mother of Ronald V., appeals from an order denying her request for a modification because of *1805changed circumstances (Welf. & Inst. Code, § 3 88)1 of an order terminating her parental rights which issued at the conclusion of a permanency planning hearing (§ 366.26). The issue before us is a very simple one. May a parent whose rights have been terminated subsequ...
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Opinion Robert Gangemi was convicted of filing false deeds of trust in connection with an elaborate scheme to unlawfully shield a friend’s personal assets from collection by judgment creditors. (Pen. Code, §§ 115, 115.5.) 1 He contends on appeal that the two $75,000 fines imposed under section 115.5 were improper, and, alternatively, imposition of more than one fine violated th...
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Clifford L. Paschall, Jr. appeals his conviction, following a bench trial, and his sentence under the Sentencing Guidelines for attempted possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841(a)(1) (1988) and carrying a firearm during a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1). Paschall was arrested during an aborted purchase of cocaine from a con...
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ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 Petitioner has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. In the underlying action, Petitioner pleaded guilty to three counts of a seven count bank robbery indictment. Petitioner entered into a plea agreement with the government and was sentenced to forty-six months in the custody of the Bureau of Prisons. Petitioner n...
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4 Cal.4th 1076 (1993) 846 P.2d 792 17 Cal. Rptr.2d 210 HORACE MANN INSURANCE COMPANY, Plaintiff and Respondent, v. BARBARA B. et al., Defendants and Appellants. Docket No. S025417. Supreme Court of California. March 11, 1993. *1078 COUNSEL Kinkle, Rodiger & Spriggs and James W. Parker for Defendants and Appellants. Latham & Watkins, David L. Mulliken, Kristine L. Wilkes, Daniel E. Butcher...
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*1580 Opinion In these companion cases, consolidated for appeal, the Corona-Norco Unified School District (District) sought writs of mandate to compel the City of Corona and its city council (collectively, City) to rescind approvals of tentative tract maps for two residential development projects. The District contended the tentative tract maps were inconsistent with the City’s g...
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Opinion An attorney who is not of record files a motion on behalf of a party in an action. Does the trial court have jurisdiction to impose sanctions against such an attorney? Yes, because he represents a party even though he is not attorney of record. *68 Attorney Henry W. Bockman appeals an order imposing $500 sanctions against trim under Code of Civil Procedure section 128.5. 1 Here, t...
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Opinion Plaintiff dismissed his personal injury action with prejudice and signed a release of all claims. This release applied to the defendants who were the driver and the owner of the other vehicle, and to any other person or entity responsible for the accident. The trial court held that the dismissal and release barred subsequent litigation against the defendant driver’s employer. The trial ...
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Opinion The novel issue presented by this appeal is whether a Tameny 1 cause of action for breach of a contract in violation of public policy exists outside the employment situation. We conclude it does not. Statement of the Case Appellant David B. Harris appeals from the judgment entered on his lawsuit against Atlantic Richfield Company (ARCO) and ARCO’s cross-compla...
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Sheriff Brad Gates and the other defendants appeal the district court’s award of $100,000 in attorney fees under 42 U.S.C. § 1988. Defendants do not dispute the $2539.24 award for costs incurred by plaintiffs’ attorneys. The underlying civil rights litigation concerns prison conditions in Orange County, California. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand the fee awa...
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The Korobkins were allegedly involved in several abusive tax shelter transactions, and were assessed over $300,000 in penalties under I.R.C. § 6700. People who disagree with a penalty assessment can contest it by (1) paying 15% of the assessment and filing an administrative refund claim within 30 days of notice of the penalty, (2) waiting until the IRS denies the claim or until 6 months elapse (w...
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Douglas Henry Carson pleaded guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) (1988), and now challenges the calculation of his criminal history score and the constitutionality of his sentence under the United States Sentencing Guidelines (“U.S.S.G.”). Specifically, Carson alleges sections 4A1.1 and 4A1.2 of the guidelines violate the Ex Post Facto Clause, equal protectio...
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*117 Opinion The Civil Service Commission (the Commission) appeals after the court issued a writ of administrative mandate (Code Civ. Proc., 1 § 1094.5) compelling it to hear Rebecca Velez’s appeal following her termination as a protected employee of the air pollution control district. Velez filed her notice of appeal five days after the ten-day period prescribed in San Diego County Civil S...
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Opinion This appeal raises the question, to what extent may private oil company pipelines which run through more than one county be centrally assessed by the State Board of Equalization. For the reasons stated below, we affirm the trial court’s judgment, as modified, and hold that lands and rights-of-way through which such pipelines run must be locally assessed and taxed and that only the...
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Opinion Appellant Elizabeth Schmidt appeals from a judgment entered against her following the grant of a motion by respondent Southern California Rapid Transit District for judgment on the pleadings. In a twist from the usual circumstance, this case involves a situation in which appellant complied with the filing deadlines requisite in making a claim against respondent, but did not f...
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Opinion Plaintiff Michael Schwoerer (plaintiff) appeals from a judgment of dismissal entered after the trial court granted summary judgment in favor of defendants Union Oil Company of California (Union), Ashland Chemical, Inc. (Ashland), E. R. Vine & Co. (Vine), and Ebbetts Pass Gas Service (Ebbetts). 1 Plaintiff’s action is based on injuries allegedly caused by inhalation of a...
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Opinion This appeal is from a judgment denying appellant Henry Jefferson’s petition for peremptory writ of mandate in which he sought reinstatement to his position as a principal in Compton Unified School District, respondent (District). The District reassigned appellant from principal to classroom teacher. At the time of the events leading to this action, appellant had been employed by the D...
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987 F.2d 1454 Joel C. WOODS, Jr., Petitioner-Appellant,v.Major General J.J. SHEEHAN, U.S. Marine Corps; ThomasStarr, Commanding Officer-Inspector 6th Engineer SupportBattalion; Lt. Colonel Swanson, Commanding Officer 6thEngineer Support Battalion, Respondents-Appellees. No. 91-35695. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1992.Decided March 15,...
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Opinion Appellant Mark Anthony Groomes pleaded nolo contendere to one count of lewd and lascivious conduct upon a child under the age of 14 years, a violation of Penal Code 1 section 288, subdivision (a). He also admitted an enhancement allegation that he had substantial sexual conduct with the victim, who was under the age of 11 years within the meaning of section 1203.066, su...
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I concur in the majority opinion because the broad language employed by the Legislature in drafting Civil Code section 846 compels the conclusion that plaintiff, at the time he was injured, was using defendant’s property for a “recreational purpose” within the meaning of that statute. But I agree with the observation, made in the dissenting opinion, that it is incongruous to immunize a landowner f...
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*18 Opinion We affirm the summary judgment granted in favor of defendants. Background James Farenbaugh went to Hollywood Park on June 14, 1989, and put down $4,860 on a “Pick-9” ticket. A Pick-9 requires the bettor to pick the winners of the nine races run that day. Picking all nine winners results in a large return. But Farenbaugh had something else in mind. He ca...
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Opinion Petitioner Wilbert Cadell Bright (Bright) seeks writ review of an order of the trial court denying Bright pretrial bail in a pending prosecution for murder with special circumstances, specifically, murder committed during the commission of a robbery. (Pen. Code, §§ 187, 190.2, subd. (a)(17)(i).) 1 Although the People do not seek the death penalty, the *1666 ...
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*1685 Opinion Appellant Mission Community Hospital appeals from a judgment denying appellant’s petition for writ of administrative mandamus seeking to compel respondent State of California, Department of Health Services to accept appellant’s amended 1985 Medi-Cal cost report. Appellant contends respondent had a mandatory duty to accept the amended cost report. Alternatively, appe...
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Opinion This matter arises on the petition of the Public Employment Relations Board (Board) for a writ of mandate directing the respondent superior court to enforce administrative subpoenas served upon the Department of Personnel Administration (DPA). The subpoenas were issued in a proceeding to determine whether, in failing to meet and confer with state employee organizations prior to pr...
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Son Anh Chu appeals his convictions for possession of heroin with intent to distribute, 21 U.S.C. § 841(a)(1) (1988), and importation of heroin, 21 U.S.C. § 952(a) (1988). Chu contends the district court erroneously instructed the jury that possession of a substantial quantity of a controlled substance alone may be sufficient to support a finding of knowing possession. We have jurisdiction under ...
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ORDER The “[t]wo recent state court opinions [that] refused to follow our decision in Hall [v. City of Santa Barbara, 833 F.2d 1270 (9th Cir.1986)],” Sierra Lake Reserve v. City of Rocklin, 938 F.2d 951, 955 (9th Cir.1991), have proven prescient. See Yee v. City of Escondido, — U.S.-,-, 112 S.Ct. 1522, 1527, 1531, 118 L.Ed.2d 153 (1992). We therefore vacate Part I of the Sierra Lake Rese...
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The Memorandum disposition filed November 16, 1992, 979 F.2d 856, is redesig-nated an authored opinion by Judge Fein-berg. The Trustees of the Electrical Workers Health and Welfare Trust, et al. (the Trustees), appeal from judgments of the United States District Court for the District of Nevada, Lloyd D. George, J., holding that the Employee Retirement Income Security Act (ERISA) preempts their c...
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James Kenneth Gardner appeals his 147-month sentence under the United States Sentencing Guidelines (“U.S.S.G.”) for one count of bank robbery, in violation of 18 U.S.C. § 2113(a); two counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a)(d); and one count of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c). Gardner contends the district court erred by enh...
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Opinion Ad Way Signs, Inc. (hereafter, Ad Way) 1 erected a billboard next to Highway 101 in Santa Clara County as specified in its permit, moved the billboard without a new permit, and returned it to the *191 original location when the California Department of Transportation (hereafter, Caltrans) either cancelled or threatened to cancel the original permit. Several...
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Opinion Appellant Donald Alan Box raises the narrow issue of whether the trial court erred in failing to permit an evidentiary hearing in accordance with Franks v. Delaware (1978) 438 U.S. 154 [57 L.Ed.2d 667, 98 S.Ct. 2674], We conclude appellant failed to make a substantial showing of deliberate or reckless falsification by law enforcement in the search warrant aff...
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*167 Opinion Appellants/defendants Operation Rescue of Southern California (ORSC) and Greg Aakhus, Anna and Riccardo Lemos, and Garvan Kuskey (Aakhus) challenge the trial court’s order awarding respondent/plaintiff Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc., attorney fees in the amount of $36,365 pursuant to Code of Civil Procedure section 1021.5. We affir...
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989 F.2d 1045 38 Fed. R. Evid. Serv. 1138 UNITED STATES of America, Plaintiff-Appellee,v.Ramon P. TARAZON, Defendant-Appellant. No. 92-10204. United States Court of Appeals,Ninth Circuit. Submitted Feb. 5, 1993.*Decided March 17, 1993. Sandra Lynn Slaton, Paradise Valley, AZ, for defendant-appellant. Vincent Q. Kirby, Asst. U.S. Atty., Phoenix, AZ, for plaintif...
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Opinion Myron Bishop entered a changed plea of guilty to one count of cocaine possession (Health & Saf. Code, § 11350, subd. (a)), with other *206 charges dismissed in a negotiated disposition, after the superior court denied his renewed motion to suppress evidence. Granted felony probation with a nine-month jail term condition, he appeals challenging the suppression ruling. ...
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OPINION AND ORDER GRANTING DEBTOR’S MOTION REGARDING USE OF INCOME FROM DEBTOR’S BUSINESS OPERATIONS This matter is before the Court pursuant to Debtor’s Emergency Motion for Interim Order Regarding Use of Income from Debtor’s Business Operations filed on November 30, 1992. After due consideration of the motion, the applicable law, the record herein, the January 8, 1993 transcript of the ...
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Thomas Henrique appeals the district court’s denial of his Fed.R.Crim.P. 35(a) motion to correct an illegal sentence imposed following entry of a guilty plea to conspiracy to possess and distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Henrique contends his sentence illegally prohibits him from being released on parole prior to completion of his entire term of imprisonment. We h...
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Pedro L. Bueno, an Arizona state prisoner, appeals pro se the denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for eight counts of attempted trafficking in stolen property. He contends that the state trial court violated due process by admitting hearsay evidence, requiring him to elect defenses, and enhancing his sentence on the basis of pri- or convictions. We hav...
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We consider whether a criminal defendant is entitled to change retained counsel at the last minute before trial. A. Dean Lillie was charged with tax evasion and conspiracy to obstruct the IRS. On the morning trial was to start, Lillie told the court he wanted to replace his appointed counsel, Emily Simon, with William A. Cohan, a lawyer retained by Lillie’s family. Though Lillie didn’t claim Si...
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This case requires us to decide whether an incarcerated pro se litigant completes “service” of discovery responses at the time he submits the responses to prison authorities for forwarding to the party being served. We hold that he does, and reverse and remand. I Brian S. Faile alleges that his use of the prescription drug Xanax, manufactured by defendant The Upjohn Company (“Upjohn”)...
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We consider whether conspiring to make the government’s job harder is, without more, a federal crime. I Patricia Caldwell was a bookkeeper for the Northwest Community Exchange. The Exchange was a “warehouse bank,” a device people use to keep their financial transactions secret. It used numbered accounts, promised to keep no records of clients’ transactions and vowed not to disclose in...
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The panel has voted unanimously to deny the petition for rehearing. Circuit Judge Pregerson has voted to reject the suggestion for rehearing en banc, and Circuit Judge Goodwin so recommends. Circuit Judge Alarcon has voted to accept the suggestion for rehearing en banc. The full court has been advised of the suggestion for rehearing en banc. An active judge requested a vote on whether to rehear th...
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4 Cal.4th 1116 (1993) 847 P.2d 45 17 Cal. Rptr.2d 365 THE PEOPLE, Plaintiff and Respondent, v. RONALD GUITON, Defendant and Appellant. Docket No. S026003. Supreme Court of California. March 18, 1993. *1119 COUNSEL Kathleen Bryan, under appointment by the Supreme Court, for Defendant and Appellant. Fern M. Laethem, State Public Defender, and Philip M. Brooks, Deputy State Public Defender, as Amici...
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Alameda County Waste Reduction and Recycling Act of 1990 (Measure D) imposes a $6 “surcharge” per ton of solid waste deposited in landfills located in Alameda County. The majority conclude that the surcharge is a valid regulatory fee. I believe the trial court properly found this surcharge to be a special tax imposed in violation of article XIII A, section 4 of the California Constitution. A munic...
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Opinion Defendant was convicted of first degree murder. The jury was allowed to consider two theories of first degree murder: (1) a deliberate *1137and premeditated killing; and (2) murder by means of lying in wait. The Court of Appeal found insufficient evidence to support the theory of lying in wait and therefore reversed the conviction. We granted review to determine whether there was sufficien...
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Opinion The trial court granted defendant’s motion for summary judgment, finding that based upon the undisputed facts, the doctrine of respondeat superior did not apply when an employee of defendant was involved in an automobile accident while on his way home from work. Plaintiff contends the fact the employee was receiving payment for his travel expenses meant the employee was acting wit...
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988 F.2d 989 23 Envtl. L. Rep. 20,530 FRIENDS OF THE PAYETTE, and Idaho Rivers United, Inc.,Plaintiffs-Appellants,v.HORSESHOE BEND HYDROELECTRIC CO.; United States Army Corpsof Engineers; Robert Volz, District Engineer ofUnited States Army Corps of Engineers,Defendants-Appellees. No. 92-36611. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 5, 1993.Dec...
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Opinion These appeals present numerous challenges to the constitutionality of the parade permit ordinance of the City of Long Beach (City), Long Beach Municipal Code Chapter 5.60 (hereafter cited by section and referred to as Chapter 5.60.) 1 . The City, defendant below, appeals from the superior court’s judgment insofar as it holds that section 5.60.030(C) of the ordinance imparts unconstitu...
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Opinion Bruce D. Stuart, a defendant in a legal malpractice action, seeks a writ of mandate directing the respondent court to grant his summary judgment motion. On August 8, 1986, plaintiff Carmen Robledo Andrade suffered an injury while on the premises of Ron Rose Arco Station (Arco). He hired Mr. Stuart to represent him in a personal injury lawsuit. On March 6, 1987, Mr. Stuart fil...
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C. A. 9th Cir. Certiorari granted....
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Opinion This appeal is from an order dissolving a preliminary injunction and denying permanent injunctive relief in a dispute between two school districts concerning the division of property incident to a reorganization. Natomas Union School District (Natomas) seeks to bar the sale of real property by the Grant Joint Union High School District (Grant) pending an arbitration of the dispute. Nato...
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In 1985, Kelvin R. Steele pled guilty to two counts of armed bank robbery, both pre-Guidelines offenses. The district judge sentenced Steele to concurrent twenty-five year prison terms. The judge also ordered that Steele would become eligible for parole under 18 U.S.C. § 4205(b)(2). This section provides for parole at the discretion of the Parole Commission. In 1990, this Court vacated Steele’s s...
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Jearold Williams and George Allen appeal, on various grounds, their convictions for conspiracy to manufacture and distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 and 18 U.S.C. § 2, possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a...
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14 Cal.App.4th 383 (1993) 17 Cal. Rptr.2d 688 THE PEOPLE, Plaintiff and Respondent, v. JOHN CALVIN BABCOCK, Defendant and Appellant. Docket No. A054926. Court of Appeals of California, First District, Division Two. March 22, 1993. *384 COUNSEL Rita L. Swenor, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Willaimson, Chief Assist...
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Opinion In this case the liability insurance policies obtained by the plaintiffs provided coverage for “accidents.” Alleged misrepresentations made by the plaintiffs for the purpose of inducing participation in a *364 business venture are not “accidents” within the meaning of those policies. Accordingly the defendant insurer did not owe the plaintiffs any duty to defend them ...
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Joe Sherman Maxey appeals his sentence to a mandatory minimum term of 15 years’ imprisonment pursuant to 18 U.S.C. § 924(e) imposed after conviction by jury trial of unlawful possession of a firearm by a felon, a violation of 18 U.S.C. § 922(g)(1). The district court had jurisdiction under 18 U.S.C. § 3231, and this Court has jurisdiction over Maxey’s timely appeal pursuant to 18 U.S.C. § 3742....
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The government appeals from the district court’s judgment imposing a sentence of eight months on defendant Larry Lewin-son. This sentence represents a downward departure under Section 5K2.13 of the United States Sentencing Guidelines (“§ 5K2.13”). We affirm. BACKGROUND On February 12, 1992, Larry Lewinson pled guilty to one count of mail fraud un *1006 der 18 U.S.C. § 1341. At the plea hear...
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The Reillys appeal pro se the district court’s order dismissing their adversary complaint. Because their notice of appeal was filed while a motion for rehearing was pending in the district court, we lack jurisdiction to hear their appeal. FACTS AND PROCEDURAL HISTORY In February 1977, the Reillys negotiated a loan from the Federal Land Bank of Spokane and gave as security a deed of tr...
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Albert Young appeals his 235 month sentence under the United States Sentencing Guidelines (“U.S.S.G.”) following his jury conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Young argues (1) that the district court erred by sentencing him under the Armed Career Criminal provision, *1003 U.S.S.G. § 4B1.4, because one of the prior convictions considered ...
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Appellant Mori Seiki USA, Inc. (“Mori Seiki”) was the consignee of a precision lathe that was damaged while being transported from Nagoya, Japan to Houston, Texas. The lathe was damaged after it was unloaded from an ocean vessel at the Port of Los Angeles, but before it was released from the seaport. Mori Seiki filed suit in district court seeking damages from *447the ocean carrier (Mitsui O.S.K. ...
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990 F.2d 1518 61 USLW 2582 James ELLIS, Plaintiff-Appellee,v.CITY OF LA MESA, et al., Defendants-Appellants.Philip PAULSON, Howard T. Kreisner & Society ofSeparationists, Inc., Plaintiffs-Appellees,v.CITY OF SAN DIEGO, Defendant-Appellant.John MURPHY, Plaintiff-Appellee,v.Brian BILBRAY, George Bailey, Susan Golding, Leon Williams,and John MacDonald, in their official capacities as memb...
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507 U.S. 380 (1993) PIONEER INVESTMENT SERVICES CO. v. BRUNSWICK ASSOCIATES LIMITED PARTNERSHIP et al. No. 91-1695. United States Supreme Court. Argued November 30, 1992. Decided March 24, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *381 White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Stevens, and Kennedy, JJ., joined. O'Con...
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507 U.S. 410 (1993) CITY OF CINCINNATI v. DISCOVERY NETWORK, INC., et al. No. 91-1200. United States Supreme Court. Argued November 9, 1992. Decided March 24, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *411 Stevens, J., delivered the opinion of the Court, in which Blackmun, O'Connor, Scalia, Kennedy, and Souter, JJ., joined. Blackmun, J., filed a concurring opini...
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507 U.S. 447 (1993) UNITED STATES by and through INTERNAL REVENUE SERVICE v. McDERMOTT et al. No. 91-1229. United States Supreme Court. Argued December 7, 1992. Decided March 24, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Kennedy, and Souter, JJ., joined. *448 Thomas, ...
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This case poses the question whether the United States Sentencing Commission is subject to the Freedom of Information Act (“FOIA”). We agree with the district court that it is not. Appellant Andrade brought this action seeking to compel the Sentencing Commission to release certain records. The district court dismissed the complaint for lack of subject matter jurisdiction and for failure to...
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OVERVIEW Phoenix Newspapers, Inc. (“PNI”) appeals the district court’s grant of summary judgment and award of attorneys’ fees in favor of Phoenix Mailers Union Local 752 (“the Union”). PNI filed a complaint in district court to vacate an arbitration award and moved for summary judgment. The Union filed a cross-motion for summary judgment, seeking enforcement of the arbitration award and at...
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We consider the meaning of “extortion” under the Armed Career Criminal Act. Background Brian Anderson pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). If a felon in possession has three or more previous convictions for “violent felon[ies]” his sentence increases precipitously under the Armed Career Criminal Act, 18 U.S.C. § 924(e). 1 Anderson ha...
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*545 Opinion On appeal from an adverse judgment entered after a trial de novo, defendant Zachary Brandstetter contends the trial court erred in denying his motion to enter judgment on a judicial arbitration award. We disagree. Accordingly, we shall affirm. Background Plaintiffs William G. and Vivian D. Marracino sued defendant for breach of contract, fraud and other causes of action arisi...
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*577 Opinion The Orange County Employees Association (OCEA) unsuccessfully sued in declaratory relief, seeking a ruling that the County of Orange and the county’s municipal courts could not preclude certain special sheriff’s officers, deputy coroners, and court service officers from carrying concealed firearms off duty. We reverse with directions to enter judgment for OCEA. ...
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Opinion In this declaratory relief action defendant Foster appeals from a summary judgment in favor of plaintiff insurer, urging he was not an “owner” of the motor vehicle herein, and as a consequence, does not fall within a coverage exclusion contained in the uninsured motorist provision of a policy issued by plaintiff, The appeal presents one basic question: Is a person who parts with ...
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Opinion The Restaurant Enterprises Group, Inc. (appellant) appeals an order by the superior court compelling production of documents pursuant to an administrative subpoena duces tecum (subpoena) issued by the Division of Labor Standards Enforcement (DLSE). The DLSE seeks to determine whether appellant is subject to California Labor Code section 227.3 1 , which prohibits tiie fo...
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George Cann appeals the district court’s decision that he is entitled to only $19,847.00 of the $51,600.24 in attorneys’ fees that he requested under ERISA’s attorneys’ fees provision, 29 U.S.C. § 1132(g)(1). The issues are whether the statute allows for attorneys’ fees for the administrative phase of the claims process, and whether it allows for enhancement for contingency. We hold that it all...
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Opinion Petitioner Enriqueta Silva, M.D., seeks a writ of mandate directing respondent superior court to set aside its order denying her petition for writ of administrative mandamus. The real party in interest, the Medicial Board of California (Board), obtained an administrative interim order suspending Silva’s medical license, pursuant to Government Code section 11529. 1 Although Silva ass...
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Guy Val Bliss and Stanley B. Ritter were convicted of conspiracy to make an unregistered pipe bomb and to cause travel in interstate commerce in the commission of murder-for-hire, making an unregistered pipe bomb and aiding and abetting, and receipt and possession of an unregistered pipe bomb. Ritter was also convicted of transferring an unregistered pipe bomb. Both defendants appeal. The gover...
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990 F.2d 1531 36 ERC 1177, 61 USLW 2627, 143P.U.R.4th 110,23 Envtl. L. Rep. 20,678 CENTRAL ARIZONA WATER CONSERVATION DISTRICT, Central ArizonaIrrigation and Drainage District, Maricopa-StanfieldIrrigation & Drainage District, New Magma Irrigation &Drainage District, and Harquahala Valley IrrigationDistrict, Petitioners,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent,Sa...
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Opinion The minor George M. contends the juvenile court considered an improper factor when deciding to commit him to the California Youth Authority. He also contends the court improperly applied two enhancement statutes. George M.’s point with respect to one of the enhancement statutes is well taken. We therefore modify the judgment to reduce the maximum term of commitment by three years and,...
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CHIN, J. I. Introduction Jeffrey Allen Wallace appeals from a judgment of conviction for multiple sex offenses. The primary issues are (1) whether the court should have excluded deoxyribonucleic acid (DNA) analysis evidence, and (2) whether the court should have instructed the jury that an element of the five-year *655 enhancement for infliction of great bodily injury in ...
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Opinion Plaintiff Josefina Hernandez filed an unverified third amended complaint against the City of San Jose (City) and others on October 27, 1987. 1 The complaint sought damages due to the alleged wrongful death of plaintiff’s 15-year-old son, Robert. 2 City filed an answer to the complaint on March 3, 1988, generally denying all allegations in the complaint. On September 10, 1991, City m...
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Opinion This petition is on behalf of a juvenile ward of the court. It seeks a ruling from this court reversing the denial by the superior court judge of a peremptory challenge filed on behalf of the minor. The challenge was filed in connection with a juvenile court hearing of a supplemental petition brought under Welfare and Institutions Code 1 section 777, which alleged that ...
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*593 Opinion Jim Delaney appeals from the summary judgment entered against him in his action alleging employment discrimination by defendant Superior Fast Freight (Superior) based upon sexual orientation. (No. B063458.) Superior appeals from the trial court’s denial of its request for attorney fees. (No. B066035.) In a telephone call to a company official, Delaney threatened...
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Opinion In this prosecution for obstructing and resisting a peace officer in the performance of his duty, we shall hold that the existence or not of exigent circumstances, upon which the People relied to justify the entry of peace officers into defendant’s home to arrest him without a warrant, is an issue for the jury invoking the trial court’s duty sua sponte to instruct thereon. Defendant w...
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Opinion In this action by a retailer against a distributor of beauty supplies, plaintiff and appellant Isaiah Khoury appeals from the trial court’s order of dismissal in favor of defendants and respondents Maly’s of California, Inc., and John Maly, following the sustaining of demurrer, without leave to amend, to the second amended complaint. The factual allegations of appellant’s unv...
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Antonio Urbina-Mauricio (Urbina), a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ dismissal of the Immigration Judge’s denial of his application for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(d) and 1253(h). We deny the petition. I. FACTS AND PRIOR PROCEEDINGS 'Urbina entered the United States illegally in...
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In Castillo-Villagra v. INS, 972 F.2d 1017 (9th Cir.1992), a Nicaraguan national *1112and her two daughters appealed to the Board of Immigration Appeals an adverse decision of an immigration judge who had denied the aliens’ request for asylum or withholding of deportation. The aliens contended that they would be persecuted because of their stated anti-Sandinista sentiments were they to return to t...
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Opinion Steven John Babich was charged in the first count of an information with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), 1 in the second count with felony false imprisonment by violence (§§ 236, 237), and in the third count with battery on a person in a dating relationship with defendant (§ 243, subd. (e)). The jury convicted defendant of the crimes charged in the secon...
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Opinion This case presents the question whether a real estate broker had a duty to advise her client that the client’s real estate transactions could have adverse tax consequences. Plaintiff Ernest Carleton, an experienced real estate investor, employed defendant Mary Tortosa, a real estate broker, in the sale of two residential rental properties and the purchase of two residential r...
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Opinion In this case, we consider the interplay between the jury’s responses to special interrogatories, disclosing the amount of damages attributable to plaintiffs various theories of recovery, and the jury’s general verdict, setting forth the total amount of damages awarded to plaintiff. Here, plaintiff sued defendants on several different causes of action, including defamation. The jury’s gener...
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Opinion In this discovery proceeding we consider whether the trial court may order the production of an insurance policy in a personal injury action. Petitioners Irvington-Moore, Inc., and U.S. Natural Resources, Inc., are defendants in a personal injury action brought against them by real party in interest Charles David Jordan. 1 Defendants seek a writ of mandate compelling the respondent su...
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Opinion Plaintiffs Jose Zubia, Anita Zubia, Suzanne Zubia, Sylvia Zubia, and Jesus Ramos, Sr. (plaintiffs) appeal from a judgment in favor of defendant Farmers Insurance Exchange (Farmers). The trial court held a reimbursement provision in an automobile insurance policy issued by Farmers to plaintiff Jose Zubia was valid and enforceable as applied to medical expense payments made under th...
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The 550 West Ina Road Trust appeals the Bankruptcy Appellate Panel’s (BAP) judgment affirming the bankruptcy court’s confirmation of Barry and Patricia Tucker’s Chapter 13 plan. The Trust primarily argues the plan should not have been confirmed because the Tuckers, shortly before filing for bankruptcy, concealed funds and prevented a deputy sheriff from seizing those funds in partial satisfaction...
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William Andrew Vigil appeals from his conviction of two counts of possession with intent to distribute cocaine and heroin in violation of 21 U.S.C. § 841(a)(1). He contends that evidence used against him should have been suppressed and that the evidence at trial was insufficient to establish his guilt beyond a reasonable doubt. We affirm. SUPPRESSION HEARING At the suppression hearing...
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Patricia B. Farr brought this action against her employer, United Air Lines, Inc. (United) and against the United States after the Internal Revenue Service (IRS) levied upon her wages. The IRS claimed that Farr had unpaid federal income tax liabilities and United turned over certain monies that it was holding on her behalf. She asserts defects in the levy procedures and also asserts that United...
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Citicorp Mortgage, Inc. (“Citicorp”) appeals the denial of its request for attorney’s fees and costs expended in protecting its lien in a forfeiture action brought by the United States pursuant to 21 U.S.C. § 881(a)(7) (1988). In its lienholder claim, Citicorp requested interest, attorney’s fees and costs incurred in defending the forfeiture. The government offered to pay principal and interest t...
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Filemon Bernal-Obeso appeals his conviction by a jury of conspiracy to possess a controlled substance, in violation of 21 U.S.C. §§ 846 and 841(a)(1), and possession of a controlled substance with intent to distribute and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. His primary complaint on appeal is in two parts. First, he alleges that during the discovery phas...
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I. OVERVIEW On June 11, 1986, an explosion occurred at Caelus Devices, Inc. (“CDI”), a munitions contractor for the United States. Appellant Isabel Yanez, a CDI employee, suffered third degree burns and lost her left lower arm. On February 6, 1987, Yanez filed suit in California Superior Court against Broco, Inc., J.S. Brower & Associates, and J.S. Brower (collectively “Broco”) alleging that Broco...
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*633 Opinion Under Code of Civil Procedure 1 former section 377 may adult children maintain an action for the wrongful death of their parent if the parent’s entire estate is community property bequeathed to the other parent, the surviving spouse? Our answer is yes. Accordingly we reverse the summary judgment awarded respondents. We also modify the trial court’s order a...
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Opinion Eldred J. Makabali appeals after he pled no contest to one count of lewd conduct with a child (Pen. Code, § 288, subd. (a)) and was sentenced to three years in prison. He contends an attorney specifically appointed to investigate possible ineffective assistance by appellant’s trial counsel was himself ineffective because he refused to file a motion to withdraw the plea. Consequently, ...
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Opinion Defendant and appellant Duane Wood (Wood) appeals a judgment following a bench trial in favor of plaintiff and respondent Birgit Bergen (Bergen). The essential issue in this “palimony” case is whether the trial court erred in awarding support to Bergen. Because the parties never cohabited and the services Bergen rendered to Wood are not the type which is considered valuable consider...
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delivered the opinion of the Court. In this original action, we resolve another dispute among States that assert competing claims to abandoned intangible personal property. Most of the funds at issue are unclaimed securities distributions held by intermediary banks, brokers, and depositories for beneficial owners who cannot be identified or located. The Special Master proposed awarding the right t...
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Opinion This is an eminent domain action. The condemnor is the State of California, ex relatione the California Department of Transportation (hereinafter, the State), and the condemnee is Diversified Properties Company III (hereinafter, DPC), a limited partnership which is the owner/ prospective developer of the commercially zoned realty which was condemned by the State in this action (he...
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Palomar Mobilehome Park Association (“Palomar”) filed suit in federal court, challenging the City of San Marcos’s (“City”) mobilehome park rent control ordinance. The district court dismissed the case because it was barred by the doctrine of res judicata. The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331(a) and 1343(3). We have jurisdiction pursuant to 28 U.S.C. § 1291. We affir...
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Mission Oaks Mobile Home Park (“Mission Oaks”), a mobilehome park in Hollis-ter, California, brought suit in federal court challenging the City of Hollister’s (“City”) Mobilehome Park Rent Control Ordinance. Mission Oaks had filed a challenge to the rent control ordinance in state court, alleging the same basic violations prior to filing the federal suit. The district court dismissed the federal ...
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Ford appeals from his sentence imposed after he pleaded guilty to tax evasion in violation of 26 U.S.C. § 7201 and filing a false federal income tax return in violation of 26 U.S.C. § 7206(1). The district court exercised jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part, reverse in part, vac...
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This case involves a conditional plea of guilty to drug offenses and being a felon in possession of a firearm. Mendonsa contests the order denying suppression of evidence obtained from his residence in the execution of a search warrant. He asserts that there was not probable cause for the issuance of the warrant, that there was not good faith in executing it, and that the officers violated the “k...
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We are asked to decide in this case whether a civil arrest pursuant to deportation proceedings starts the clock under the Speedy Trial Act, 18 U.S.C. § 3161 et seq., for criminal charges which are later filed against the detainee. We hold that except in cases of collusion between Immigration and Naturalization officials and criminal authorities, where the civil detention is merely a ruse to avo...
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Appellant Jack Gerritsen (“Gerritsen”) appears pro se, challenging the district court’s grants of motions to dismiss and motions for summary judgment in favor of the defendants. 1 Specifically, he claims error in the district court’s dismissal of the claims against the Federal Bureau of Investigation (“FBI”) and FBI agent Carlos Berrios (“Berrios”); he also challenges the district co...
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Opinion This is the second case to reach us as a result of the insolvency of Executive Life Insurance Company (ELIC). In the first, Texas Commerce Bank v. Garamendi (1992) 11 Cal.App.4th 460 [14 Cal.Rptr.2d 854], we held that municipal bond guarantee contracts (Muni-GIC’s) issued by ELIC in 1986 were annuities and hence “life insurance” within the meaning of Insuranc...
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Opinion Ronnie Charles Foster appeals the trial court’s judgment dismissing his suit after granting respondent San Luis Obispo County’s motion for summary judgment. We affirm. The issue in this appeal is whether respondent can be sued for legal malpractice based upon the alleged negligent performance of the lawyer it provided for appellant when he was an indigent criminal defendant. ...
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Opinion Plaintiffs/appellants Tensor Group, 116 W. Maple Avenue, and 1815 Orchard Avenue (collectively as Tensor) appeal from the judgment of dismissal entered upon the sustaining of the demurrer, without leave to amend, of defendant/respondent City of Glendale (the City). Tensor’s complaint against the City had sought damages for injuries allegedly caused by the City’s alleged inverse condemna...
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Opinion Settimo Associates (Settimo) appeals a judgment on the pleadings in favor of Environ Systems, Inc., Otto F. Newton, Site Preparation, Inc., and Developers Insurance Co. (collectively Environ) on Settimo’s complaint for intentional or negligent interference with prospective economic advantage. Settimo contends the court erred in determining that Environ’s bidding on private contrac...
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*863 Opinion An information charged Adam Timothy Mortera with murder (Pen. Code, 2 § 187) with allegations he was armed with a firearm (§ 12022, subd. (a)(1)), personally used a firearm (§ 12022.5, subd. (a)) and caused the death of the victim as a result of discharging a firearm from a motor vehicle (§ 12022.55). Mortera pleaded not guilty and denied the allegations. ...
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*868 Opinion This is an appeal by plaintiffs, John Lucas and his mother, Vicki L. Lucas, from a judgment entered in favor of defendant Fresno Unified School District (District) following the grant of District’s motion for summary judgment. The question presented is whether the doctrine of implied assumption of risk bars plaintiffs from holding District liable for the negligent fa...
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Opinion Shannon M., also known as Shannon R., (Shannon or the mother) appeals from an order of the juvenile court granting sole legal custody of her daughter Jennifer to Jennifer’s father, Michael R. (Michael or the father). Because we find the court’s order was in the best interest of the minor and supported by substantial evidence, we affirm. Background In September 1990 the San Diego County Dep...
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ORDER Appellees move to dismiss this appeal from a magistrate judge’s order for lack of appellate jurisdiction. We grant the motion. On December 1, 1992, Magistrate Judge Thomas M. Coffin filed a document entitled “Findings and Recommendation and Order” in this case, indicating that the “defendants’ motion to dismiss should be allowed and this action dismissed.” On December 10, 1992, plaintif...
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990 F.2d 467 Robert H. MATTHEWS, Jr.; Ernie R. Sanders, Petitioners-Appellants,v.Edward A. MACANAS, Special Agent, Federal Bureau ofInvestigation; Charles Butt, Special Agent, United StatesCustom Service; Larry Hedberg, Special Agent, DrugEnforcement Administration; Larry Courtney, Special Agent,Drug Enforcement Administration; John P. Pierce, AssistantUnited States Attorney, Respondents-...
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Young appeals from his sentence following his guilty plea to unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). He contends that the district court erred by sentencing him as a career criminal offender pursuant to section 4B1.1 of the United States Sentencing Guidelines (Guidelines). This appeal presents the sole issue of whether, for purposes of section 4B1.1, the unlawful possession of ...
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Dawood Momeni traveled to Hawaii on eight occasions between February, 1986 and November, 1987, and charged his hotel and miscellaneous expenses to credit cards not owned by him. He appeals his conviction and sentence on multiple counts of mail, wire and credit fraud. I Momeni argues there was insufficient evidence he was the person involved in the events at the hotels alleged in count...
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Wallace Sheft, special administrator of the estate of Roy Fitzgerald, aka Rock Hudson (“the Estate”), appeals from an order granting summary judgment in favor of Aetna Casualty & Surety Company (“Aetna”), in its declaratory judgment action. Aetna sought a declaration that it is not required to indemnify or defend the Estate for a judgment against it in a state court action brought by...
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989 F.2d 1093 G & G JEWELRY, INC., dba United Jewelry Mart; Robert P.Goldstone, Plaintiffs-Appellants,v.CITY OF OAKLAND, Henry L. Gardner, City Manager; George T.Hart, Chief of Police; Thomas O. Donahue, Deputy Chief ofPolice; Jay Crawford, Sergeant; Craig D. Stewart,Sergeant; Jonathan Madarang, Officer; Jane W. Williams,City Attorney; Wendy P. Rouder, Assistant City Attorney,Defen...
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Opinion Sean Jensen seeks reversal of a judgment of nonsuit following his opening statement at the trial of his defamation action against his former employer, Hewlett-Packard Company, and one of its supervisors, Rod Smith. In a nutshell, the lawsuit involves a difference of opinion between an employer and an employee about the quality of the employee’s work. A Hewlett-Packard supervisor, Hank P...
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*1049 Opinion Appellants David Morgan and James Morgan seek to reverse a judgment, following an eminent domain trial, in favor of respondent Long Beach Community Redevelopment Agency (the Agency). The judgment determined that the Agency had a right to lawfully take appellants’ property by eminent domain and fixed the amount of compensation at $193,000. Appellants maintain that: t...
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Opinion The underlying litigation in this case arises from an automobile accident in which plaintiff sustained personal injuries. The matter was tried to a jury which assessed plaintiff’s comparative fault at 27 percent and awarded her $13,000 in economic damages and $25,000 in noneconomic damages. Plaintiff unsuccessfully sought a new trial based primarily on alleged juror misconduct. We...
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Felipe Gutierrez was convicted of possession with intent to distribute approximately 243 grams of cocaine within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1) & 860 (formerly § 845a). Gutierrez appeals the district court’s failure to grant his motion to dismiss for selective prosecution, and its failure to instruct the jury on the lesser included offense of simple possession. We ...
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Opinion The California Department of Corrections and the director of the department, James Rowland (hereinafter collectively the Department), appeal a trial court injunction that limits the Department’s ability to conduct *516random searches of prison visitors’ vehicles on prison property. The Department asserts the injunctive conditions effectively prevent it from conducting the vehicle searches,...
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Opinion Arthur L. Harris appeals from an order entered on October 22, 1991, finding him not competent to stand trial. While this appeal was pending, appellant was certified competent and criminal proceedings were reinstituted. In a second Penal Code section 1368 proceeding, a jury found appellant competent to stand trial, and he has since been convicted of several felonies. Although seve...
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Appellant Dixon, a state prisoner, sued under 42 U.S.C. § 1983, claiming that prison officials denied him adequate medical treatment in violation of his Eighth Amendment rights. The case went to trial. The magistrate judge granted defendants’ motion for a directed verdict. Dixon appeals, claiming that: (1) he was entitled to have an Article III judge, not a magistrate judge, try his case; (2) he ...
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Harry Hurston petitions for review of the Benefits Review Board decision and order denying him benefits under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950. We must decide whether a structure built on pilings that reaches from land to navigable water is a “pier” which is a covered situs under § 903(a) even though it is not used for a traditional maritime activity su...
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Opinion The minor, Asean D., admitted two allegations of robbery (Pen. Code, § 211) and one allegation of the unlawful taking or driving of a vehicle (Veh. Code, § 10851). On this appeal, he argues that the trial court violated Penal Code section 654 by employing consecutive terms for the second robbery and the vehicle taking in computing the maximum term of confinement pursuant to Welfar...
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Opinion The County of San Diego (County) appeals a judgment requiring it to indemnify Sheriff Lieutenant John Tenwolde (Tenwolde) for attorney fees awarded against him in an underlying lawsuit, California Common Cause v. Duffy (1987) 200 Cal.App.3d 730 [246 Cal.Rptr. 285] (hereafter Common Cause). By special verdict, a jury found (1) Tenwolde was represent...
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Opinion Queen T. (minor) was found in violation of Vehicle Code 1 section 23153, subdivision (a), driving under the influence of alcohol and causing injury, and an allegation she inflicted great bodily injury was found true. The issue presented on this appeal is whether steering a vehicle, without controlling the accelerator or brakes, constitutes “driving.” We hold that it does. I At app...
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Opinion Fred John Felix and David Walter Pedrico were each convicted of four counts of robbery (Pen. Code, § 211) 1 and three counts of false imprisonment (§ 236). Felix was found to have personally used a firearm in three of the robberies. All the charges arose from the armed robbery of a supermarket by two men. The defense for both defendants was misidentification, and neither testified. Ov...
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Opinion Defendant Christopher James McGuire pleaded guilty to transporting methamphetamine (Health & Saf. Code, § 11379), possessing methamphetamine for sale (Health & Saf. Code, § 11378), being under the *691 influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), driving a vehicle under the influence of a drug (Veh. Code, § 23152, subd. (a)), and givin...
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Opinion The Home Insurance Company and H. L. Yoh Company (appellants) appeal from a judgment entered in favor of the Hertz Corporation and Fireman’s Fund Insurance Companies (respondents) in a declaratory *1074 relief action. The parties had disputed the question of who was obligated to fund the settlement entered into with two third party victims injured in an accident invol...
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Juan Carlos Zuniga was convicted of bank robbery in violation of 18 U.S.C. § 2113(a). He was sentenced to prison. He appeals because the trial court failed to give the jury an alibi instruction. We have jurisdiction under 28 U.S.C. § 1291. We reverse. At 5:45 p.m., April 19, 1991, the Valley National Bank in Phoenix, Arizona was robbed. A lone robber gave a bank teller a demand note that stated...
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Appellants, the 3250 Wilshire Building and the 3250 Wilshire Partners (collectively “Wilshire”), appeal the district court’s award of approximately $1.2 million in attorney’s fees and expenses to appellee Metropolitan Life Insurance Company (“Met-Life”). MetLife incurred these expenses in defense of Wilshire’s unsuccessful diversity lawsuit for breach of fiduciary duty, breach of the implied du...
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Appellant Jose Sandoval appeals his conviction for concealment and sale of narcotics in violation of 21 U.S.C. § 174 (repealed 1971). The primary question before us is whether Sandoval’s right to a speedy trial under the Sixth Amendment has been violated. Sandoval was arrested for selling heroin and cocaine to undercover federal agents on September 10, 1970. Released on $15,000 bond shortly aft...
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4 Cal.4th 1164 (1993) 847 P.2d 1031 17 Cal. Rptr.2d 815 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; YAHYA LAVI, Real Party in Interest. Docket No. S022419. Supreme Court of California. April 1, 1993. *1169 COUNSEL Ira Reiner, District Attorney, Maurice H. Oppenheim, Robert W. Carney, Arnold T. Guminski, Donald J. Kaplan and Brentford J. Ferreira, Deputy Distri...
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Opinion The State Board of Control and several of its members (hereinafter collectively referred to as the Board) appeal from a judgment compelling the Board to deem the cost of medical services provided to indigent crime victims at Highland General Hospital in the County of Alameda, a “pecuniary loss” as defined by Government Code section 13960, subdivision (d). We will hold that ne...
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ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT On December 22, 1992, the Court denied Defendants’ Motion to Dismiss. The parties have now filed cross-motions for summary judgment which squarely present the issue of whether California state courts have the authority to determine whether a Domestic Relations Order is a Qualified Domestic Relations Order (“QDRO”) for purposes of ERIS...
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Opinion Introduction Michael Tyrone Williams appeals following his conviction by a jury of two counts of attempted murder (Pen. Code, §§ 664/187, subd. (a)), with findings that he had inflicted great bodily injury on the victim as a result of discharging a firearm from a motor vehicle (Pen. Code, § 12022.55). The attempted murders occurred during a gang-related drive-by shooting. Appellant wa...
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Opinion Defendant Jeffery Burnell Healy was charged with numerous violations of Penal Code 1 section 273.5, subdivision (a), corporal injury to victims, Rhodona B., and Laura L. The charges pertaining to Rhodona B. *1139 took place over a period of nearly a year and involved frequent and brutal beatings causing severe injuries. Healy was also charged with torturing Laura L. in violation of ...
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I concur in the judgment of affirmance. A. The Redacted Affidavit for Search Warrant Established Probable Cause for Its Issuance Assuming arguendo, as Justice Kline’s lead opinion indicates, that the tape recording was made in violation of title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.1 § 2510 et seq.) (hereafter the Act or Title III), after excision of all referenc...
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Opinion This is an eminent domain action brought by the City and County of San Francisco (City) to acquire a single lot owned by Golden Gate Heights Investments (GGHI). The property is a vacant, steep hillside in the Sunset neighborhood of the city. The property is known as the “Rock Outcropping” because it bears large and unique rock outcroppings visible from the Pacific Ocean. The City ...
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delivered the opinion of the Court. In this case we decide the question left open in West Virginia v. United States, 479 U. S. 305, 312-313, n. 5 (1987): whether Congress intended the Debt Collection Act of 1982 to abrogate the United States’ federal common-law right to collect prejudgment interest on debts owed to it by the States. We hold that it did not. Texas incurred the instant debts as a re...
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*140 Opinion Introduction Plaintiffs Raymond Fielder and others appeal from a summary judgment entered in favor of defendant City of Los Angeles. Factual Background On May 31, 1991, defendant’s city council enacted ordinance No. 166976. The ordinance imposes upon each deed or instrument in writing that transfers or conveys real property to a purchaser a tax of $2.2...
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Bernard J. Atkinson appeals his conviction for personal income tax evasion and corporate income tax fraud under 26 U.S.C. §§ 7201 and 7206(1). At the request of the panel originally assigned this case, we granted en banc consideration of the appropriate standard of review for Atkinson’s claim that his conviction is supported by insufficient evidence. 981 F.2d 1109 (9th Cir.1992). I Atkinson w...
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Defendant Edmund Miller Goodell appeals from his sentence after pleading guilty to being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Specifically, Goodell objects to the two-point sentencing enhancement for possession of a stolen firearm because he had no knowledge that the weapon was stolen. Goodell argues that the enhancement violates due process because pu...
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Eads Transfer, Inc. ("Eads”) petitions for review of a decision and order issued by the National Labor Relations Board (“Board”), and the Board cross-petitions for enforcement of its order issued on August 27, 1991 and reported at 304 N.L.R.B. No. 90. The Board ruled that Eads violated § 8(a)(1) and (3) of the National Labor Relations Act (“NLRA”), 29 U.S.C. § 158(a)(1) and (3) by failing to in...
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Appellant Mark Brock Palmer appeals his conviction for manufacturing 100 or more marijuana plants, in violation of 21 *492U.S.C. § 841(a). Palmer argues that the district court erred in (1) denying his motion to suppress, (2) admitting his post-arraignment statement and (3) denying his motion to dismiss. We affirm in part, reverse in part and remand. I. On the afternoon of February 11, 1991, a Spo...
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Opinion Victor Anthony Valenzuela appeals from the judgment entered following his negotiated pleas of guilty to second degree robbery *839 (Pen. Code, § 211) 1 and grand theft of a motor vehicle (§ 487h, subd. (a)) and admissions that he used a knife in the commission of both crimes. (§ 12022, subd. (b).) He contends: “I. The trial court should have dismissed the Penal Code section 487h(a) ...
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Opinion I. Introduction Petitioner, the City of Los Angeles, seeks a writ of mandate directing the respondent court to grant its motion for summary judgment. Because plaintiffs’ lawsuit and petition for relief from the claims requirement were not *624 timely filed, the summary judgment motion should have been granted. Accordingly, the petition is granted. 1 II. Facts and Procedural Hist...
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MEMORANDUM AND ORDER Defendant Resolution Trust Corporation (“RTC”) moves to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) on the ground that plaintiff Elnora Feise failed to exhaust the administrative procedure provided in the Financial Institutions Reform Recovery and Enforcement Act of 1989 (“FIRREA”). BACKGROUND Plaintiff filed her complai...
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Opinion Pursuant to Welfare and Institutions Code section 11350.1, the Orange County District Attorney filed a complaint on behalf of Jennifer K. against Leslie B. and Gregory Z. to establish paternity and to provide support. Gregory was married to and lived with Jennifer’s mother Catherine K. when Jennifer was conceived, but they separated and divorced shortly thereafter. Leslie was having a s...
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Opinion Statement of the Case Defendant Francisco Javier Vasquez appeals from a judgment entered after the trial court found him guilty of possession of marijuana for sale and *1161two counts of selling marijuana. (Health & Saf. Code, §§ 11359, 11360, subd, (a).) On appeal, he claims the court erred in denying his motion to suppress marijuana seized from him. We affirm the judgment. Facts At ...
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4 Cal.4th 1187 (1993) 847 P.2d 1044 17 Cal. Rptr.2d 828 GERALD S. RUBIN, Plaintiff and Appellant, v. NORMA GREEN et al., Defendants and Respondents. Docket No. S025858. Supreme Court of California. April 5, 1993. *1190 COUNSEL Grebow & Barish, Arthur Grebow, Patricia A. Brown, Lincoln Stone and Susan Gruskin for Plaintiff and Appellant. David Spangenberg, Hart, King & Coldren, Robert S. C...
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Opinion This appeal arises from a heated public debate about the placement of a parole office in the San Gabriel Valley by the State of California (the State) Department of Corrections (the Department). Responding to complaints from citizens of Alhambra and Monterey Park, the State agreed to relocate a parole office from that area to the Pasadena area. The State selected a site in an exis...
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This case arises out of a claim by an ERISA plan against a beneficiary. The case turns on which statute of limitations applies, that of the state selected in a contractual choice of law provision, or that of the state where the claim was filed. We conclude that the choice of law provision in the plan controls. The plan won a summary judgment in district court, which we affirm. I. Facts. ...
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Eduardo Perez (“Perez”) timely appeals his conviction of carrying a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c). Perez contends the dis *1113 trict court incorrectly instructed the jury on the elements of section 924(c). We affirm. I. FACTS AND PRIOR PROCEEDINGS On August 6, 1991, Detective Clifford Morgan of the Boise, Idaho Police Department, acting under ...
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MEMORANDUM AND ORDER I. Background Plaintiff is a former employee of Round Valley Indian Health Center (“Round Valley”). Defendant Round Valley is a health care provider serving the Round Valley Indian community in Northern California. Gerald 0. Kane is the Director of Round Valley. Plaintiff filed a complaint against Round Valley and Kane, alleging that Kane physically and sexually assau...
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MEMORANDUM AND ORDER I. Background In a patent lawsuit filed by Charles Prior Hall (“Hall”) and WBX Partners (“WBX”) against Del Astra Industries (“Del Astra”) in the Central District of California (“the Central District action”), Del Astra tendered its defense to Continental Insurance Company (“Continental”). Continental refused the tender and filed an action seeking a declaration that it has no...
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Opinion Appellant Dirk S. appeals from the dispositional order, declaring his son, Dirk S., to be a dependent child of the court. (Welf. & Inst. Code, § 300.) 1 Appellant asserts that the court prejudicially erred when it admitted into evidence the hearsay declarations of a witness who was subsequently found incompetent to testify at the hearing; and the court impermissibly del...
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Opinion Donald Lynn Ellis appeals from the judgment entered following his plea of guilty to driving a motor vehicle with a blood-alcohol level of *1200 more than .08 percent with five prior convictions of driving a motor vehicle under the influence (Veh. Code, §§ 23152, subd. (b), 23175) and his admission of a prior felony conviction for which he served a separate prison term (Pen. Code, § 66...
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Opinion The development of the common law is often thought to be the province of creative lawyers. There are times, however, when persons without formal legal training play a significant role in bringing issues to the attention of the courts. In this case Alfred Banks, appearing in propria persona, was declared a vexatious litigant under the standards set forth in Code of Civil Procedure sectio...
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Opinion Plaintiff Holly Roach appeals from the order dismissing her action against defendants Donald Vaughn Lewis, Jr., Donald V. Lewis, Sr., and Ann H. Lewis for failure to prosecute. (Code Civ. Proc., § 583.420, subd. (a).) We affirm. Background On July 13,1988, with four days remaining under the applicable statute of limitations, Roach filed a complaint alleging that, as a result of havi...
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Gray, Cope and Simon present one common issue: the constitutionality of section 27A of the Securities Exchange Act of 1934 (“1934 Act”). Appellees argue that section 27A is unconstitutional in several respects: (1) it violates the separation of powers doctrine, as interpreted in United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1872), by directing a rule of decision in pending cases wi...
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990 F.2d 1133 RICO Bus.Disp.Guide 8269 Jean C. DURNING; Marvin B. Durning, Plaintiffs-Appellants,United States Attorney General, Intervenor,v.CITIBANK, INTERNATIONAL; The First Boston Corp.; FirstInterstate; Wyoming Community DevelopmentAuthority, Defendants-Appellees.Jean C. DURNING; Marvin B. Durning, on behalf of themselvesand all other persons similarly situated,Plaintiffs-Appelle...
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The United States appeals an order of the district court suppressing evidence in its prosecution of Judith Kay Levinson, Elliot Lane Levinson and Equs Distributing, Inc. (the defendants) for conspiracy against the United States and the transportation of obscene materials in interstate commerce. United States v. Levinson, 790 F.Supp. 1472 (D.Nev.1992). We reverse the district court. PROCEEDING...
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This appeal raises two questions. First, did an unlawful search and seizure occur, when a traveler’s luggage being held by the airline for transport on the next available flight was subjected to a dog sniff test by the DEA? Second, were references by the trial judge during voir dire to narcotics trafficking as a widespread scourge improper and prejudicial? We answer no to both questions and affir...
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991 F.2d 497 61 USLW 2636 OLYMPIC CLUB, Plaintiff-Counterclaimant-Appellant,v.THOSE INTERESTED UNDERWRITERS AT LLOYD'S LONDON, whosubscribed to Directors and Officers LiabilityIncluding Organization ReimbursementInsurance Policy No. NP 00400,Defendants-Appellees. No. 91-16180. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 21, 1992.Decided April 7, 1993...
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Phillip Fairchild appeals his conviction of causing false statements to be made to the General Services Administration (GSA) in violation of 18 U.S.C. §§ 1001 and 2. We affirm. FACTS In August 1986 So-Cal Plastics, Inc. (So-Cal) entered into a contract with the GSA to provide plastic bags. Fairchild was president of So-Cal and signéd the contract, which specified the thickness of the bags, ...
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Defendant Leonard Lee Williams appeals his conviction for possession with intent to distribute PCP, in violation of 21 U.S.C. § 841(a). He claims that he is entitled to a new trial based on (1) improper comments made by the prosecutor during rebuttal regarding the defense’s failure to call a *509 witness; (2) erroneous jury instructions that possession of a substantial quantity of narcotics may...
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Opinion Defendants Maureen and Herbert Balter (defendants) appeal from a judgment entered in favor of plaintiffs Lorene and Robert Reid (plaintiffs). Following a jury trial on the merits, defendants challenge an order which vacated a prior order of dismissal that had been entered after plaintiffs had failed to appear at a scheduled pretrial status conference. Defendants also challenge a s...
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Opinion Fair Political Practices Commission (FPPC) appeals from judgment granting peremptory writ of mandamus setting aside FPPC’s decision of July 9, 1991, assessing a $6,000 monetary penalty against Los Angeles Taxpayers Alliance (LATA) and Fred Huebscher for three violations of Government Code section 84305.5, subdivision (a)(2), 1 requiring that “slate mailers” contain a pr...
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James Henry Meador, Jr. (“Meador”) petitioned the district court for a writ of habeas corpus alleging that (1) the United States Parole Commission (“the Commission”) erred by not notifying him prior to his 1982 parole revocation hearing that his *505 “street time” (time spent on parole) was subject to forfeiture and (2) the Commission erred by failing to pursue the 1988 DUI conviction in a time...
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*1287 Opinion Plaintiff insured appeals from an order denying her petition to compel arbitration of uninsured motorist claim. (Code Civ. Proc., § 1294, subd. (a); Ins. Code, § 11580.2, subd. (f).) 1 Facts In 1989, plaintiff and her grandfather, Bryson Russell, purchased a 1987 Mazda pickup truck. On April 7, 1989, Russell contacted Steven Kennedy, a State Farm a...
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989 F.2d 1574 Thomas E. CREECH, Petitioner-Appellant,v.A.J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy,Director, Idaho State Board of Corrections; JimJones, Attorney General, State of Idaho,Respondents-Appellees. No. 86-3983. United States Court of Appeals,Ninth Circuit. April 9, 1993. On Remand from the United States Supreme Court. Before BEEZER, HALL an...
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Opinion A jury convicted defendant Toby Kirk Jones of first degree murder (Pen. Code, § 187). In an earlier appeal, this court filed an unpublished opinion on April 26, 1990, reversing the judgment of conviction because of instructional error. (People v. Jones (Apr. 26, 1990) E006297.) In the new trial on remand, a jury convicted Jones of second degree murder, and the court sentenced him ...
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4 Cal.4th 1213 (1993) 848 P.2d 244 18 Cal. Rptr.2d 128 GRANT DAVID RHINER, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, TED JONES et al., Respondents. Docket No. S022239. Supreme Court of California. April 8, 1993. *1215 COUNSEL William A. Herreras for Petitioner. Phillip N. Bruce as Amicus Curiae on behalf of Petitioner. Hogen J. Kallemeyn and Charles E. Stevenson for Respondents. Mark R....
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990 F.2d 513 16 Employee Benefits Cas. 2032 KYLE RAILWAYS, INC., Plaintiff-Appellant,v.PACIFIC ADMINISTRATION SERVICES, INC.; Adjustco, Inc.,Successor in Interest to Pacific Administration Services,Inc.; Guarantee Mutual Life Company; National BenefitResources Group Services, Inc., Defendants-Appellees. No. 91-16391. United States Court of Appeals,Ninth Circuit. Argued and S...
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Naim Butros petitions for review of a decision of the Board of Immigration Appeals (Board) dismissing his motion to reopen a denial of waiver of deportation. We grant the petition for review and remand for further proceedings. BACKGROUND Naim Butros entered the United States in February 1975. He was six years old. His status at the time of entry was that of a lawful permanent resident, that is, on...
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Opinion This appeal from a judgment dismissing an action for a tax refund challenges the validity of a provision of Proposition 103, approved by the electorate in 1989, which raised the rate of the insurance premium tax imposed by California Constitution article XIII, section 28. The State Compensation Insurance Fund (hereafter State Fund) is an “insurer” as defined by subdivision (a) of articl...
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Opinion Hector Adolfo Avina appeals his conviction on one count of continuous sexual abuse of a child (Pen. Code, § 288.5). 1 He contends he was deprived of his right to a unanimous jury verdict by an instruction, derived from language in the statute, allowing conviction without jury unanimity on which individual acts of abuse occurred. We find ourselves in agreement with the only previous de...
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Opinion In Osborn v. Irwin Memorial Blood Bank (1992) 5 Cal.App.4th 234, 271 [7 Cal.Rptr.2d 101], we held that a blood bank sued for negligent failure to safeguard its blood supply is subject to a professional standard of care. Thus, if negligent failure to prevent transmission of the AIDS virus is alleged, it must be shown that the blood bank failed to exercise the degree of care ordinaril...
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MEMORANDUM AND ORDER ON MOTION FOR ATTORNEYS’ FEES This is plaintiffs’ renewed motion for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. §. 2412 (EAJA). A short history of this long case is necessary to the disposition of the motion. BACKGROUND This action was brought to challenge the constitutionality of the .regulations promulgated by the United States Inform...
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Susan and Robert Hallstrom appeal the dismissal on summary judgment of their 42 U.S.C. § 1983 action. They describe themselves as self-taught “legalists” active and vocal in defending their constitutional rights. They claim violations of their rights stemming from the conduct of Ada County, Garden City, and each governmental entity’s officers during the arrest of Mr. Hallstrom in March 1982 and...
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The government appeals from the district court’s order granting Erickson’s pretrial motion to suppress evidence seized pursuant to a search of his residence. The sole issue on appeal is whether the probable cause and warrant requirement of the Fourth Amendment apply when a police officer pulls back a plastic sheet covering a window and looks inside a basement during a burglary investigation. The ...
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Opinion When an application to annex unincorporated territory to a city has been filed with a local agency formation commission (LAFCO), is the city obligated to agree with the county to an exchange of property tax revenues? If the city does not so agree, must the LAFCO nonetheless proceed to hear and determine the annexation application? In this case the trial court answered both of thes...
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Opinion Defendant and appellant Troy Earl Seals appeals from a judgment after a jury trial in which he was convicted of robbery with the use of a firearm and evading an officer, and a court trial in which it was found he had suffered a prior serious felony conviction and two prior prison terms for felony convictions. He contends the trial court erred in sentencing him to the upper terms for the...
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ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION. This suit arises as.a result of an agreement between Electronic Arts, Inc. (“Electronic Arts”) and defendant Humongous Entertainment Company (“Humongous”), granting Electronic Arts the right to distribute Humongous’ products, including a computer video game entitled Putt Putt Joins the Parade. Humongous’ principals are former emp...
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Opinion Defendant appeals from the judgment entered below upon his conviction by jury of one count of forcible rape (Pen. Code, § 261, subd. *1396 (a)(2)) and one count of sexual battery (Pen. Code, § 243.4, subd. (a)). 1 On appeal, defendant has raised the following contentions: (1) There is insufficient evidence of “wrongful touching” to support the conviction of felony sexual battery in ...
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OPINION BACKGROUND Debtors Thomas and Lynne Mantz (“the Mantzes”) filed their Chapter 7 petition on December 28, 1988 without listing the Internal Revenue Service (“IRS”) on their schedules or providing other notice to the IRS.1 The Mantzes had failed to file tax returns for the years 1986 and 1987. The § 3412 meeting of creditors was scheduled for January 26,1989. The IRS had 90 days from that ...
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Following his conditional guilty plea to manufacturing marijuana plants in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Traynor appeals the district court’s denial of his motions to dismiss the indictment and to suppress evidence. Traynor also challenges his sentence. The district court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Traynor’s plea agreement expressly reserved his...
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991 F.2d 536 143 L.R.R.M. (BNA) 2001, 61 USLW 2636,125 Lab.Cas. P 10,677 Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, FOR AND ON BEHALFOF the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellant,v.CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellee.Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, FOR AND ON ...
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I. OVERVIEW A jury convicted appellant Mario Taylor (Taylor) of aiding and abetting the counterfeiting of United States currency and possession of counterfeit currency in violation of 18 U.S.C. § 2 and 18 U.S.C. § 472. He was sentenced to a fifty-one month jail term followed by three years of supervised release. He appeals claiming that the district court erred in interpreting the sentencing ...
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Opinion Joseph L. Walkkein and Antonio Royal Watson were charged by information with attempted robbery (count 1; Pen. Code, *1404§ 664/211)1 and burglary (count 2; §459). During their court trial, over Watson’s objection, extrajudicial statements by Walkkein which incriminated Watson were admitted into evidence as to Walkkein only. Watson’s appeal raises the issue of whether the rule of People v. ...
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Opinion Defendant appeals from a judgment following his conviction on three counts of robbery and one count of kidnapping. We conditionally reverse the kidnapping conviction. In addition, errors committed in sentencing defendant require the sentence be vacated, and the matter remanded for new sentencing proceedings. Facts and Proceedings Below On a July evening at approximately ...
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*1457 Opinion At night, four men entered a family residence and during a one- to one-and-one-half-hour period robbed four and assaulted two family members. Appellants were two of the four men. A jury convicted them of all charges. The sole contention of appellant Phan is the trial court erred in admitting the trial identification and pretrial photo identification by a robbery victim. Appell...
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Opinion Appellants 1 (Marco Aurelio Guzman and Ruben Correa) were tried without a jury and found guilty of narcotics-related offenses. 2 The Attorney General concedes the record “does not reflect an express waiver of the right to a jury trial by appellants].’’ The dispositive question is this: does the record, under the totality of circumstances, show a voluntary an...
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Opinion A jury convicted Robert Arthur Gutierrez and Antonio Rosales Ambriz 1 of first degree murder (Pen. Code, 2 187) and two counts of first degree attempted murder (§§ 664/187). Firearm allegations (§§ 12022, subd. (a)(1), 12022.5 [appellant Ambriz only]) were found true. Appellants, singly or jointly, contend: (1) gang expert testimony was improperly admitt...
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ORDER Pursuant to the opinion of the United States Supreme Court, the prior judgment of this court is vacated and the case is remanded to the district court, where the motion for leave to file in forma pauperis must be denied. Rowland v. California Men’s Colony, — U.S. -, -, 113 S.Ct. 716, 726, 121 L.Ed.2d 656 (1993). ...
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ORDER DENYING REQUEST FOR ATTORNEYS’ FEES Before WALLACE, Chief Judge, POOLE, Circuit Judge, and MARSH,* District Judge. ORDER Davis has requested an award of attorneys’ fees in this case, on the ground that the appeal was frivolous. Davis’s opening brief in this appeal, however, failed to indicate that a request for attorneys’ fees would be made. Ninth Circuit Rule 28-2.3 states that any party “w...
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MEMORANDUM DECISION AND ORDER On January 25,1993, motions for summary judgment by plaintiffs Joseph Silverman and Joseph Silverman doing business as Calendar Chemicals, and by defendant United States of America came on for hearing before the Honorable Earl B. Gilliam. Grant Clark appeared for plaintiffs, Donald Shanahan appeared for the government. At the conclusion of the hearing, the court ...
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OPINION The United States appeals a bankruptcy court order holding the IRS liable for $2,000 in attorney’s fees incurred by the debtor in defending attempts to collect taxes in violation of a discharge order. We AFFIRM. I. FACTS Mary Germaine (“Germaine”) filed a Chapter 13 1 petition. Her plan was confirmed on May 12, 1986. The Internal Revenue Service (“IRS”) filed ...
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Opinion Defendant appeals after a misdemeanor conviction of possession of less than one ounce of marijuana. (Health & Saf. Code, § 11357, subd. (b).) We transferred the case to this court pursuant to rule 62(a), California Rules of Court to settle an important question of law, to wit, whether diversion from criminal proceedings under Penal Code section 1000 is available for a first such o...
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Opinion At a contested jurisdictional hearing, the juvenile court found Prentiss C. committed the following crimes: rape (Pen. Code, § 261. subd. (2)); 1 forcible oral copulation (§ 288a, subd. (c)); rape by foreign *1486 object (§ 289, subd (a)); attempted robbery (two counts) (§§ 211/664); false imprisonment (two counts) (§ 236); exhibiting a firearm (§ 417, subd...
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Opinion William L. Harris and individuals associated with Concerned Citizens for Human Life and Shield of Roses (hereafter sometimes *1388 collectively referred to as Harris) appeal the issuance of a permanent injunction prohibiting anti-abortion picketing in the parking lot, interior walkways and grass areas of the Fletcher Parkway Medical Center (hereafter Medical Center). ...
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Opinion This case involves a lawsuit by a number of individual consumers and corporate sales agents, including Cellular Plus, Inc., and others (Cellular Plus), against the two licensed providers of cellular telephone service in San Diego County. The trial court granted demurrers to causes of action for wholesale price fixing and retail price fixing under the Cartwright Act. Its decision a...
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Opinion In this case a San Diego jury returned a verdict assessing $6.5 million in exemplary damages against a Wisconsin corporation. The corporation’s liability insurers, residents of Connecticut, Alabama, *640 Texas and Illinois, filed a declaratory relief action alleging they were not required to provide the corporation with any indemnity for the exemplary damages. The cor...
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Opinion In this case we hold that time spent at home in an electronic monitoring program as a condition of probation does not qualify for good conduct credits upon revocation of probation. Defendant Stephen Nelson Cook appeals from a judgment of imprisonment for false imprisonment (Pen. Code, §§ 236-237 [case No. 112367]) and petty theft with a prior (Pen. Code, §§ 484, 666 [case No. 137753])...
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ORDER GRANTING REVIEW OF AND REVERSING MAGISTRATE JUDGE’S ORDER OF JANUARY 28, 1993, ORDERING GLENN TOBIAS TO SUBMIT TO A PRE-TRIAL DEPOSITION. Background This suit arises out of a related foreign proceeding filed on December 22,1992, in the High Court of Justice, Chancery Division, in London, England. The foreign action involves approximately thirty-million dollars in misappropriated trust fun...
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Opinion In this case, we hold that the Workers’ Compensation Appeals Board (Board) did not have jurisdiction to alter the permanent and stationary date of the earliest industrial injury sustained by respondent Thelma Swain Gill (applicant), in order to apply the principles enunciated in Wilkinson v. Workers’ Comp. Appeals Bd. (1977) 19 Cal.3d 491 [138 Cal.Rptr. 696, 564 P.2d 848] (Wilkins...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS . INTRODUCTION AND PROCEDURAL BACKGROUND Plaintiffs John Van Dyke and Mario Majorski are extension students at the University of California at Los Angeles (UCLA) and members of the Church of Scientology. On June 8, 1992 they instituted this action against the Regents of the University of California; the Chancellor of the University, Charles Young; ...
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Unimex, Inc. is a corporation convicted of conspiring to launder drug money and to fail to file currency transaction reports in violation of 18 U.S.C. § 371, and of willfully failing to file currency transaction reports in violation of 31 U.S.C. §§ 5313, 5322(b). We have affirmed, in a separate unpublished disposition, the conviction of Unimex’s president, Raul Velasquez, on related charges. We...
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Concurring in part and dissenting in part: I concur in various aspects of the majority’s opinion, but must respectfully dissent because the majority does not give due deference to the district court’s discretion in sentencing. The unique combination of factors in this case constitutes a sufficient mitigating circumstance justifying a downward departure from the Sentencing Guidelines range. See Uni...
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Opinion Does the California Environmental Quality Act apply to a city council’s decision to call for a special election to have the electorate decide whether to amend a general plan and zoning ordinance? We hold it does not. Steven C. Lee and Anthony Marvin Armas appeal from a judgment denying issuance of a writ of mandate. They brought this action to challenge the adequacy of enviro...
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Opinion Introduction On June 5, 1990, the electorate adopted Proposition 115, the “Crime Victims Justice Reform Act.” (Raven v. Deukmejian (1990) 52 Cal.3d 336, 340 [276 Cal.Rptr. 326, 801 P.2d 1077].) Among its avowed purposes, as stated in the preamble, was “ . . to create a system ... in which violent criminals receive just punishment, . . .’ ” (Id. at p. 342.) Toward that end, Penal...
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Opinion The plaintiff, Linda Thiele (Thiele), appeals from a judgment of the superior court dismissing her complaint following the sustaining of defendant American Arbitration Association’s (AAA) demurrer without leave to amend. The central issue on appeal is whether the immunity shielding arbitrators from civil liability extends to organizations sponsoring arbitrations, and, if so, ...
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Lula Mae Hobbs was convicted of conspiracy to defraud the Internal Revenue Service, structuring financial transactions to evade currency reporting requirements, and money laundering. Under 26 U.S.C. § 6103(h)(5), she had a right to know whether any of the prospective jurors had been audited or investigated by the IRS. 1 The relevant statutory language is as follows: (4) Disclosure in judicial...
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991 F.2d 560 71 A.F.T.R.2d 93-1536, 25 Fed.R.Serv.3d 777 CHURCH OF SCIENTOLOGY OF SAN FRANCISCO; Church ofScientology of California et al., Plaintiffs-Appellants,v.INTERNAL REVENUE SERVICE, Defendant-Appellee.CHURCH OF SCIENTOLOGY OF SAN FRANCISCO, Plaintiff-Appellant,v.INTERNAL REVENUE SERVICE, Defendant-Appellee. Nos. 91-15730, 91-15734. United States Court of Appeals,Ninth Circ...
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Leonard B. Panther appeals the district court’s denial of his petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 (1988). Panther seeks relief from his Alaska conviction for criminally negligent homicide in violation of Alaska Statute 11.41.130(a) (1989). He contends that (1) Alaska’s criminally negligent homicide statute is unconstitutionally vague; (2) the jury i...
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Jesus Velasquez-Carbona appeals his jury conviction for conspiracy to distribute cocaine, possession with intent to distribute cocaine, possession of a firearm during a drug offense, and possession with intent to distribute heroin. He claims that (1) the evidence presented by the government was insufficient to support his convictions, and (2) his due process rights were violated as a result of ...
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Appellant Harold Norse is a Beat poet and writer who was a colleague of the writer William Burroughs. Appellee Ted Morgan is the author of a biography, Literary Outlaw: The Life and Times of William S. Burroughs (“Literary Outlaw ”), and appellee Henry Holt and Company, is the book’s publisher. Norse charges Morgan and Holt with copyright infringement for copying in Literary Ou...
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The debtors in this bankruptcy appeal challenge the district court’s holding that a junior judicial lien did not impair their homestead exemption and therefore could not be avoided under 11 U.S.C. § 522(f). 131 B.R. 720. We affirm the district court and deny avoidance. I. FACTS AND PRIOR PROCEEDINGS . This case involves a dispute over a judicial lien on the Chabots’ residence hel...
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Opinion Defendant appeals from his conviction by jury of one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b))—attended by a true finding (the truth of which had been admitted by defendant) that he had suffered a prior conviction of a serious felony within the meaning of section 667, subdivision (a). 1 On appeal, defendant raises only one contention: The trial court erred...
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Opinion Defendant and cross-complainant Moshe E. Cukierman (appellant) appeals from the trial court’s judgment awarding relief to plaintiff and cross-defendant City of Berkeley (City or respondent) in an action brought to collect unpaid taxes under the Berkeley Business License Tax Ordinance. I. Factual and Procedural Background A. Regulatory Scheme In 1977 the City...
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Opinion The trial court ruled that appellants could not shift to an insurer the costs of defending and settling a claim for sexual harassment, since the incidents of sexual harassment in issue here constituted intentional acts, for which coverage would be barred by language in the policy and by Insurance Code section 533. We agree with this conclusion and affirm. 1. Facts and Procedu...
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Opinion Petitioner and appellant David Sharp (Sharp) appeals from the judgment of the court below denying his petition for writ of mandate in which he sought to set aside the action of respondent, the Los Angeles County Civil Service Commission (the Commission), in adopting the findings and conclusions of a hearing officer it appointed to hear Sharp’s grievance or, alternatively, to compel resp...
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Opinion Introduction Plaintiff and appellant Clarice Hayman (appellant) appeals from a judgment entered against her and in favor of defendants and respondents Sitmar Cruises, Inc. (Sitmar) and Princess Cruises, Inc. (Princess) (Sitmar and Princess are referred to collectively as respondents) after the grant of respondents’ motion for summary judgment on the ground appellant’s action ...
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Opinion Class action plaintiffs engaged in the construction of a residential care facility (the Helicon Project) in Riverside County (the County) *1580 petitioned the superior court for writ of mandate against a decision by the Director of the Department of Industrial Relations (the Director) that the project was not a “public works” project under Labor Code section 1720 or 1...
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In these two cases that have been consolidated for appeal, Garcia and Carrillo challenge the sentences,they received following their convictions. Garcia pleaded guilty to several counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a); Carrillo was convicted, after a jury trial, of one count of armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d). Both were sentenced as ca...
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On September 28, 1988, Dominic Gezzi arrived at London Heathrow Airport from Rome on the first leg of his return trip to Los Angeles. Gezzi is a diabetic, weighed 277 pounds at the time of the accident, and had difficulty walking as a result of an operation to remove one of his toes. Gezzi requested wheelchair assistance at Heath-row. Anthony Hutt, a wheelchair attendant, met Gezzi when he arrived...
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991 F.2d 583 61 Fair Empl.Prac.Cas. (BNA) 948,61 Empl. Prac. Dec. P 42,196, 61 USLW 2649,125 Lab.Cas. P 35,818, 25 Fed.R.Serv.3d 834,1 Wage & Hour Cas.2d (BNA) 641 Phyllis MILLER, Plaintiff-Appellant,v.MAXWELL'S INTERNATIONAL INC., dba Maxwell's Plum, Debtor inpossession; Carlo Galazzo, Gen. Mgt., Dino LaRosa; Don Bohn; Don Schupak, et al.,Defendants-Appellees. No. 90-16286. ...
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This interlocutory appeal raises an important issue of first impression: what, if any, statute of limitations applies to a civil enforcement action brought by the Securities and Exchange Commission (Commission). We must also decide whether the right to a jury trial guaranteed by the Seventh Amendment attaches where the Commission sues for disgorgement of illegal profits. The district court held...
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In this Title VII case, we are called upon to consider whether employment discrimination is proved when the district court fails to make specific findings regarding each explanation proffered by the employer for allegedly discriminatory promotion decisions. I Peter Odima is a black man who was born in Nigeria. He completed his high school education in Nigeria, where classes are conducted in Englis...
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Opinion I. This is a loan guaranty case. Appellant Tom Y. Lee guaranteed a $5.2 million loan from Cathay Bank to a hotel firm of which he was the corporate secretary and a director. The loan was secured by a Quality Inn in Buena Park. The hotel firm defaulted, and the bank foreclosed in a private sale. There was a deficiency between the amount realized at the sale and the amount owin...
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Opinion MOORE, J. In a bifurcated personal injury trial against two defendants, the jury rendered a verdict finding one defendant liable and the other not *1645 liable for the plaintiffs injuries. Before the jury reached a decision on damages, both defendants settled and obtained an order under Code of Civil Procedure section 877.6 1 finding the settlement to b...
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Opinion Defendants, ITT Consumer Financial Corporation, Aetna Finance Company, ITT Lyndon Property Insurance Company, ITT Lyndon Life Insurance Company, and John M. Higgins (collectively ITT), appeal from an order denying their petition to compel arbitration and prohibiting them from confirming arbitration awards in the City and County of San Francisco. Plaintiffs Abbe Kanarek Patterson e...
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delivered the opinion of the Court. This case presents the issue whether, under § 167 of the Internal Revenue Code, 26 U. S. C. § 167, the Internal Revenue Service (IRS) may treat as nondepreciable an intangible asset proved to have an ascertainable value and a limited useful life, the duration of which can be ascertained with reasonable accuracy, solely because the IRS considers the asset to be g...
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ORDER GRANTING MOTION TO. DISMISS THIRD AND FOURTH CAUSES OF ACTION This case raises the issue, on apparent first impression, whether the petroleum exclusion provision of California’s Hazardous Substance Account Act excludes refined petroleum from the Act’s regulation. The court holds that, like the federal act (CERCLA, or “Superfund”) after which it is modeled, the California Act exclude...
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MEMORANDUM AND ORDER I. Background Plaintiff is a twenty-nine year old citizen of El Salvador who entered the United States without inspection or about March 7, 1992. On April 27, 1992, Plaintiff applied to the United States Immigration and Naturalization Service (INS) for political asylum and temporary employment authorization. In Plaintiff’s asylum application, prepared in...
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991 F.2d 605 Henry DEUTSCHER, Petitioner-Appellant-Cross-Appellee,v.Harol WHITLEY, Warden of the Nevada State Prison, and BrianMcKay, Attorney General of the State of Nevada,Respondents-Appellees-Cross-Appellants. Nos. 88-2552, 88-2579. United States Court of Appeals,Ninth Circuit. April 20, 1993. David J. Burman, Perkins Coie, Seattle, WA, for petitioner-appellant-cross...
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Appellant Richard Lee Mills pled guilty to bank robbery in January of 1992. The district court ordered him to make restitution to the victim banks, and also ordered that $2,400 seized from Mills at the time of arrest be applied to the restitution obligation. The district court denied Mills’ motion brought pursuant to Fed.R.Crim.P. 41(e) seeking the return of the 12,40o. 1 Mills app...
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Paul Parker (“Paul”) and Jeannette Parker (“Jeannette”) were convicted of (I) smuggling psittacine bird eggs from Australia, in violation of 18 U.S.C. § 545, (II) conspiracy to smuggle these eggs, in violation of 18 U.S.C. § 371, (III) aiding and abetting their smuggling, in violation of 18 U.S.C. § 2, and (IV) unlawful sale of the hatched baby birds, in violation of 16 U.S.C. §§ 3372(a)(1) and 3...
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Opinion Appellant was convicted by jury of two counts of robbery, in one of which he had used a deadly or dangerous weapon. (Pen. Code, §§ 211, 12022, subd. (b).) The court imposed a total sentence of five years and directed that it be served in the California Youth Authority. (Welf. & Inst. Code, § 1731.5, subd. (c).) He appeals contending: “I. Appellant was denied his right to a fa...
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Opinion The underlying action is a third party bad faith insurance case brought by plaintiffs Alex Tiffany et al„ against defendants State Farm Mutual Automobile Insurance Company (State Farm) et al. This appeal involves only a collateral order which imposed a monetary sanction of $2,500, payable to plaintiffs, against appellants State Farm and its attorneys, Spray, Gould & Bowers. The sanction w...
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Opinion Unemployment Insurance Code section 1253, subdivision (c) disqualifies an applicant from receiving unemployment benefits for any period during which she is not able or available to work. (Further statutory *1794 references to sections of an undesignated code are to the Unemployment Insurance Code.) In this appeal we conclude an undocumented alien who does not have wor...
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Opinion Union Oil Company of California et al. (Union) appeals from the $5,298,198 judgment of the trial court for injecting offsite wastewater into the mineral estate owned by respondents, Gus Cassinos et al. 1 We affirm, except for part of the prejudgment interest awarded by the trial court. Before 1917, Escolle owned the subject property in fee simple absolute. In 1917,...
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ORDER This case requires the Court to revisit issues of gill nets, rockfish, and preemption in deciding whether to permanently enjoin a particular aspect of California Proposition 132. On January 13, 1993, the Court heard plaintiffs’ motion for summary judgment. Alan W. Sparer and Anne E. Mudge of Howard, Rice, Nemerovski, Canady, Robertson & Falk and Mary L. Hudson appeared for plaintiff...
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ORDER On December 9, 1992, the Court heard defendants’ motion to dismiss plaintiffs third and fifth causes of action and defendants Chia Lee and Fang Ling’s motion to quash plaintiffs complaint. Christopher Brancart of Brancart & Brancart appeared for plaintiff. Jeremy Sugerman of Morton & Lacy appeared for defendants. Having considered the papers submitted, the arguments of counsel, and ...
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Thomas E. and Judith C. Charlton (taxpayers) appeal from an order of the United States Tax Court denying their motion to vacate or revise the tax court’s earlier decision in favor of the Commissioner. We have jurisdiction pursuant to 26 U.S.C. § 7482(a) (1988), and we affirm. I. Taxpayer Thomas E. Charlton was a limited partner in Diabetics CME Associates (Diabetics). Diabetics was a ...
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Opinion Defendant, Bonnie Lucille Willett 1 , pled guilty to being an accessory to an assault. (Pen. Code, § 32.) 2 On June 29, 1987, the court withheld pronouncement of judgment and granted defendant three years’ supervised probation. On June 19, 1990, the probation department petitioned the court to revoke defendant’s probation because she had been arrested and held to answer in Sacrame...
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Opinion I Defendants Conway, Robinson, and Jackson were each convicted by a jury of various attempted murder, kidnapping, burglary, attempted robbery, and assault offenses arising out of an attempted robbery of a check-cashing business, and a subsequent shoot-out with sheriff’s deputies. On appeal, they each raise numerous trial and sentencing issues. We consider those issues in...
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Taxpayers in these consolidated appeals are residents of Hawaii. Their residences are situated on lots which they formerly leased. As lessees of houselots, they acquired rights under the Hawaii Land Reform Act of 1967 (HLRA) to acquire the fee interest in the lots at fair market value. 1 They exercised those rights and acquired the fee interests by paying the lessors fair market value plus “bli...
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*1164 ORDER The opinion filed July 13, 1992 and appearing at 970 F.2d 602 (9th Cir.1992) is amended as follows: 1. The second complete sentence on page 607, beginning “The government agreed to a stipulation ...” is stricken, and replaced with “The government entered into a specific agreement to charge “a quantity of cocaine (less than five kilos).” In Anderson’s view, this amounted to a sti...
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ORDER The opinion filed December 9, 1992, 982 F.2d 354, is withdrawn. OPINION Andre Smith appeals the sentence he received after pleading guilty to two counts of student loan fraud (20 U.S.C. § 1097 (1988)) and one count of making false statements to a government agency (18 U.S.C. § 1001). Smith contends that the district court erred in its application of the United States Sente...
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991 F.2d 1501 Thomas R. WAGGONER, Patricia Waggoner,Plaintiffs-Third-Party Defendants-Appellants,v.SNOW, BECKER, KROLL, KLARIS & KRAUSS, a New YorkCorporation; Snow, Becker, Krauss, a New YorkCorporation; Elliot H. Lutzker,Defendants-Third-PartyPlaintiffs-Appellees,andStaar Surgical Company, a Delaware corporation, Third-Party-Defendant. No. 91-56288. United States Court of Appea...
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Opinion Assume A is insured under an automobile liability policy with underinsured motorist coverage limits of $15,000 per person/$30,000 per occurrence. A is injured in a collision for which B is liable. B is insured under a policy with $15,000/$30,000 liability limits. Because other persons were also injured in the accident, the amount of benefits under B’s policy actually available to A is $...
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Opinion This case presents the question of when, and by which court, the two-year on-bail enhancement provided for in Penal Code 1 section 12022.1 should be imposed under the circumstances described in subdivision (d) 2 of that statute, i.e., when the defendant has reoffended (i.e., committed a “secondary” offense) while on bail or own-recognizance release on charges...
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*14 Opinion Revenue and Taxation Code 1 section 19055 provides that an administrative claim for refund of income taxes when “filed for or on behalf of a class of taxpayers shall do all of the following: [ft] (a) Be accompanied by written authorization from each taxpayer sought to be included in the . class, [ftl (b) Be signed by each taxpayer or taxpayer’s authorized r...
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Opinion Debbie L. and Robert U. appeal from the order terminating their parental relationship with Roderick U. (Welf. & Inst. Code,1 § 366.26). They raise a variety, of procedural claims related to the section 366.26 hearing and the fact that a referee conducted the proceeding without the parents’ stipulation. They also attack the sufficiency of the evidence to support the referee’s adoptability ...
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*25 Opinion San Francisco’s rent control ordinance allows a landlord to evict a tenant to permit a designated relative to occupy the premises, but specifies no time limit within which that occupancy shall commence, Under the facts in this case, we hold that the question of when the former tenant discovered or should have discovered the relative never occupied the premises, so as...
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152 B.R. 615 (1993) In re David March RAIHL and June Shirley Raihl, Debtors. David March RAIHL and June Shirley Raihl, Appellants, v. UNITED STATES of America and William Barstow, Trustee, Appellees. BAP No. AK-91-2200-RMJ, Bankruptcy No. A90-00786-DMD, Adv. No. A90-00786-001. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted on January 21, 1993. Decided April 6,...
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OPINION AND ORDER Defendant Hung Khac Pham (“Pham”) moves to suppress statements he made to government investigators on June 20 and June 22,1992. Pham claims that those statements were obtained in violation of Rule 5 of the Federal Rules of Criminal Procedure, 18 U.S.C. § 3501, and the Due' Process Clause of the Fifth Amendment to the Constitution of the United States. For the reasons stated he...
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Paul Bowhay appeals from the district court’s denial of his motion to suppress the evidence found in a black satchel which was seized when Bowhay was arrested. Bowhay argues that because the officer who searched the bag had an investigative as well as an inventory motive to search, the search could not be valid under the “inventory” exception to the Fourth Amendment. We reject this argument, and ...
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OVERVIEW James A. Knight, John A. Knight, and Mary Katherine Knight (collectively “the Knights”) own commercial rental property (“the Property”) in Santa Ana, California. David Goodman, a Chapter 11 debtor in bankruptcy as of September 1, 1988 (“the Debtor”), was a subordinate sub-sublessee of a portion of the Property. The Debtor acquired this leasehold interest from International Packaging Cor...
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We are presented with cross appeals. Appellants Joe Juarez and Esteban Juarez, who were convicted on charges stemming from the sale of firearms and the possession of unregistered suppressors (silencers), present questions of entrapment and improper and vindictive prosecutorial conduct. The government appeals from the district court’s downward departure from the sentencing guidelines recommendat...
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15 Cal.App.4th 56 (1993) 18 Cal. Rptr.2d 726 CHAMPION/L.B.S. ASSOCIATES DEVELOPMENT COMPANY, Plaintiff and Respondent, v. E-Z SERVE PETROLEUM MARKETING, INC., Defendant and Appellant. Docket No. G012930. Court of Appeals of California, Fourth District, Division Three. April 22, 1993. *57 COUNSEL Cain & Cain and Gene Cain for Defendant and Appellant. Timothy D. Reuben and Ronny Sendukas for Pl...
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Opinion Bayscene Resident Negotiators (Negotiators) appeals from an order dismissing its petition to correct and confirm an arbitration award against the Bayscene Mobilehome Park (the Park) and its owners (collectively, the owners). The court dismissed the petition, finding a provision of the city ordinance mandating binding arbitration of mobilehome rent disputes unconstitutional. The co...
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991 F.2d 1509 61 USLW 2706 UNITED STATES of America, Plaintiff-Appellee,v.Bruce Loren LATIMER, Defendant-Appellant. No. 91-50420. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 17, 1992.Decided April 26, 1993. Carlton F. Gunn, Asst. Federal Public Defender, Los Angeles, CA, for defendant-appellant. John J. Byrne, Jr., Asst. U.S. Atty., ...
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Opinion Plaintiffs appeal from the judgment of dismissal following the sustaining without leave to amend demurrers to the second amended complaint of defendants Highland Federal Bank (Highland), Ben Karmelich (Karmelich), Selina Elizabeth Pratt (Pratt), and H.F.S. Corporation (HFS; collectively, the Highland defendants). The court found the complaint failed to state a cause of action for ...
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Applicants. Graeme I. Bell, Leslie B. Rail, and James P. Merryweather (Bell) appeal from the March 10, 1992 decision of the U.S. Patent and Trademark Office (PTO) Board of Patent Appeals and Interferences, Appeal No. 91-1124, affirming the examiner’s final rejection of claims 25-46 of application Serial No. 065,673, entitled “Pre-proinsulin-Like Growth Factors I and II,” as unpatentable on the gr...
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MEMORANDUM AND ORDER I. BACKGROUND On August 29, 1991, Defendant Jesus Aguilar was indicted for conspiracy and possession with intent to distribute heroin. On October 3, 1991, he was released from custody on a $100,000 property bond after his family members (the “Sureties”) posted their home as security. On October 24, 1991, Defendant pled guilty to the charges brought against- him. ...
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MEMORANDUM AND ORDER I. Background Plaintiff is a California Partnership which owns and operates China Basin Landing, a San Francisco commercial real estate development. Defendant One Pass is a video recording and post-production business incorporated in Delaware. One Pass is a wholly owned subsidiary of Defendant Banta, a Wisconsin corporation with its principal place of busines...
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Mychal Stevens Lahey brought an action of habeas corpus seeking credit against his sentence for time spent on bail under court orders to observe certain conditions of conduct and residence. The district court denied his petition. Finding that the conditions of his bail did not approach those of official custody, we affirm. *235 FACTS Lahey was arrested on September 23,1988 for possession ...
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OVERVIEW The Internal Revenue Service appeals from the district court’s order denying its petition to enforce a summons directing Robert T. Gilleran to appear before an IRS revenue agent, pursuant to I.R.C. § 7602, in connection with the IRS’s investigation of Gilleran’s tax liability for 1987 and 1988. We reverse and remand. DISCUSSION The district court held that service of an ...
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Following sentencing upon a guilty plea to charges of securities fraud and mail fraud, Parrott filed a motion under 28 U.S.C. § 2255 challenging the terms of his sentence. The district court reduced the amount of restitution and left all other terms of Par-rott’s sentence unchanged. In 92-55305, the United States appeals the reduction in the amount of restitution and in 92-55410, Par-rott appeals...
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ORDER Plaintiff Rodney Dangerfield has filed a motion to compel responses in the above-captioned action. Defendants Star Editorial, Inc., et al., have opposed the motion. This Court heard oral argument on the matter on March 8, 1993, and took the matter under submission for disposition based on the briefs and argument pursuant to Federal Rule of Civil Procedure 78. Now having careful...
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Opinion Quy Van Pham was convicted by a jury of second degree burglary of a motor vehicle (Pen. Code, § 459), 1 count I; second degree robbery of John Guevara (§ 212.5, subd. (b)), count II; petty theft from John Guevara with a prior theft conviction (§ 666), count III; second degree robbery of Steve Oravec, count IV; petty theft from Steve Gravee with a prior theft conviction, count V; and a...
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Opinion Petitioner seeks relief from an order adjudicating him in contempt for his failure to make monthly installment payments under a judgment ordering him to reimburse real party in interest, the County of El Dorado (county), for public assistance benefits provided by the county to petitioner’s children. We shall hold that such a judgment is not enforceable by contempt. Accordingly, w...
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Opinion Edward Stolz II appeals from an order dismissing his action against Bank of America because he failed to furnish security as required by the vexatious litigant statutes (Code Civ. Proc., § 391 et seq.) 1 He challenges the order (judgment of dismissal) on assorted grounds, none of which has merit. In the published portion of the opinion 2 we hold that pri...
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*138 Opinion Factual and Procedural Background Appellant Nashon Chapman was charged by information in count 1 with brandishing a firearm in a threatening manner in a police officer’s presence (Pen. Code, 1 § 417, subd. (b)) and in count 2 with being a felon in possession of a firearm (§ 12021). The information also alleged that Chapman had a prior felony conviction for possession of narco...
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Opinion Respondents Lee and Shirley Prentiss sought a building permit for construction of an addition to their single family home, from appellants the City of South Pasadena, its building and planning division, and its building and planning director. Respondents’ application for the building permit became embroiled in controversy after appellants asserted that respondents’ home was a “qua...
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*1263 Opinion Procedural History Petitioner has been charged by information with rape (Pen. Code, § 261, subd. (2)), robbery (Pen. Code, §211), residential burglary (Pen. Code, § 459) and first degree murder (Pen. Code, § 187, subd. (a)). The first degree murder charge also alleges special circumstances of rape, robbery and burglary (Pen. Code, § 190.2, subd. (a)(17)). He ha...
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Opinion During an argument, defendant stabbed the victim with a knife. A jury convicted defendant of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and found true the allegation he used a deadly weapon in the commission of the offense (Pen. Code, § 12022, subd. (b); further section references are to the Penal *110 Code unless ...
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Opinion If a defendant, by force, takes two purses from a purse owner while the other purse owner, four to five feet away, shouts “What are you doing? Stop!,” may the defendant be convicted of two counts of robbery? Our answer is yes. We affirm the judgment. Factual and Procedural Background The facts may be stated simply. Our perspective favors the judgmen...
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Opinion On June 30, 1976, Aminoil, Inc. (Aminoil), acquired the rights, as lessee under a geothermal lease, to drill for and produce geothermal steam from certain lands located in what is known as “The Geysers” area of Lake and Sonoma Counties, with the ultimate purpose of converting the steam to commercially valuable electric power. In October 1984 Phillips Petroleum Company (Phillips) a...
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Opinion The question in this case is whether a judgment creditor may sue a judgment debtor’s insurance company under subdivision (b)(2) of section 11580 of the Insurance Code before an appeal from the judgment in the underlying action is resolved or the time within which to pursue an appeal has passed. Our answer is no. Facts In 1985,14-year-old Dwayne McKee was shot and injured by 13-year-old Je...
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OPINION The bankruptcy court disallowed the post-petition portion of the creditor’s application for attorney's fees under § 506(b). REVERSED and REMANDED. I. FACTS Creditor-Appellant James T. Takisaki (“Takisaki”) loaned the Debtor-Appellee Alpine Group, Inc. (“Alpine”) $1.37 million as 100% financing for the purchase of unimproved real property known as Three Tree Point. The loan was secur...
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MEMORANDUM AND ORDER I. BACKGROUND Plaintiff Capri Trading Corporation (“Capri”) is a Bahamian corporation and the beneficial owner of a minority interest in shares of Carrian Investments Limited (“CIL”), a Hong Kong company. Plaintiff sues Defendants for violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq., and pendent claims of fraud and...
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SENTENCING OPINION On April 14, 1992, the defendant Johnny Patillo pled guilty to a single count indictment that charged him with possession with intent to distribute approximately 680.7 grams of crack cocaine. 21 U.S.C. § 841(a)(1) (1988 and Supp. Ill 1991). On December 18, 1992, the court sentenced defendant, after orally making findings that it was compelled to impose a mandatory minim...
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MEMORANDUM AND ORDER I. BACKGROUND Plaintiff Dr. John Doe,'Ph.D., alleges that he was offered, and in June of 1991 accepted, a position as physicist with the Defendant Lawrence Livermore National Laboratory (“LLNL”). 1 The offer for employment included a salary of $6100.00 per month and a requirement that Plaintiff obtain a security clearance from the U.S. Department o...
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Opinion Statement of the Case Plaintiff Keith Curties appeals from the judgment entered after a jury verdict in favor of defendant Hill Top Developers, Inc., on Curties’s complaint for personal injuries. Curties slipped and fell on a sloping lawn on Hill Top’s property. Although the jury found that Hill Top was negligent in the management of the property and that its negligence was the legal ...
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992 F.2d 920 DuFRESNE'S AUTO SERVICE, INC.; Bobby L. Chaney; DenmanBird; Gerald Cochran; Bruce Chapman; Doll's Service Co.,Inc.; Robert Peck; Dwight Estby Enterprises, Inc.; GordonOlson; Norris Olson, Plaintiffs-Appellants,v.SHELL OIL COMPANY, a Delaware corporation, Defendant-Appellee. No. 91-35709. United States Court of Appeals,Ninth Circuit. Argued and Submitted March ...
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This appeal is from the decision of the Trademark Trial and Appeal Board (Board) of the United States Patent and Trademark Office (PTO), affirming the Examining Attorney’s refusal to grant a trademark registration to foreign applicant De Luxe, N.Y. (De Luxe) for its mark IVOIRE DE BAL-MAIN. 1 The Board refused registration on the ground that De Luxe is not the owner of the foreign registration ...
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Opinion Appellant Charles Wayne Johnson (Johnson) appeals from his conviction by jury in count 1 of second degree murder with personal use of a deadly weapon, in count 2 (on the same facts) of vehicular manslaughter with gross negligence, and in count 3 of unlawful taking and driving a vehicle. Johnson thereafter admitted two prior felony convictions and a prison term. Counsel on appeal challen...
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Opinion Facts A petition was filed under Welfare and Institutions Code sections 602 and 777 to declare Donald R. (Donald) a ward of the court. The petition alleged that Donald committed lewd and lascivious acts upon a child under the age of 14 with force (Pen. Code,1 § 288, subd. (b)) and committed lewd and lascivious acts upon a child under the age of 14 (§ 288, subd. (a)). Donald waived the rig...
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Opinion Appellant Mickey Dora sued Frontline Video, Inc. (Frontline), among others, 1 for common law and statutory appropriation of name or likeness. He appeals from a summary judgment granted in favor of respondent. We affirm. Facts and Procedural History In the 1950’s, appellant surfed at Malibu Beach. According to respondent’s evidence in support of its summary judgment motion, appella...
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508 U.S. 49 (1993) PROFESSIONAL REAL ESTATE INVESTORS, INC., ET AL. v. COLUMBIA PICTURES INDUSTRIES, INC., ET AL. No. 91-1043. United States Supreme Court. Argued November 2, 1992. Decided May 3, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *50 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, Scalia, Kennedy, and Soute...
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508 U.S. 1 (1993) UNITED STATES v. IDAHO ex rel. DIRECTOR, IDAHO DEPARTMENT OF WATER RESOURCES No. 92-190. United States Supreme Court. Argued March 29, 1993. Decided May 3, 1993. CERTIORARI TO THE SUPREME COURT OF IDAHO *2 Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, O'Connor, Scalia, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed an opinion concu...
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delivered the opinion of the Court. The question presented in this case is whether § 801 of the Department of Housing and Urban Development Reform Act of 1989, 103 Stat. 2057, violates the Due Process Clause of the Fifth Amendment by abrogating respondents’ contract rights to certain rental subsidies. I A In 1974, Congress amended the United States Housing Act of 1937 (Housing Act) to cre...
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*550 Opinion The Supreme Court in Knight v. Jewett (1992) 3 Cal.4th 296 [11 Cal.Rptr.2d 2, 834 P.2d 696] and Ford v. Gouin (1992) 3 Cal.4th 339 [11 Cal.Rptr.2d 30, 834 P.2d 724] has recently outlined a set of rules for the proper application of the “assumption of risk” doctrine in negligence cases in light of California comparative faul...
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Opinion After denial of his motion to compel disclosure of a confidential surveillance location, appellant Sean Michael Hollins pled no contest to one count of sale of cocaine. (Health & Saf. Code, § 11352.) Having obtained a certificate of probable cause, he appeals the adverse ruling, contending that the court erred in upholding the officer’s claim of privilege and in failing to strike ...
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Opinion A government agency builds a dam many years prior to the enactment of the California Environmental Quality Act (CEQA). The application to build the dam provides for the storing and annual release of water for various uses. Here we hold that the agency’s annual decision to release varying amounts of water to competing interests is part of an ongoing project, and is therefore exempt from ...
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*301 Opinion Plaintiffs John and Carolyne Wilson bought a home in Walnut Creek and later brought this action against the seller’s real estate brokerage and agent, Century 21 Great Western Realty (Century 21) and Harry Kraft, after realizing that the home had foundation problems. The case was tried to a jury on theories of fraud, negligent misrepresentation and negligence, but the...
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I dissent. In concluding that the judgment against each of the defendants must be reversed in its entirety, I do not ignore the strong evidence adduced at trial bearing on both guilt and penalty. But the record requires reversal in spite of such evidence. As to defendant Cummings, there was Wheeler error in the prosecutor’s peremptory challenge to Black prospective juror Leon Passmore on grounds *...
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Opinion After his motion to suppress evidence was denied, appellant Glenn Ray Alcorn pleaded nolo contendere to one count of possession *654 of methamphetamine in violation of Health and Safety Code section 11378. Pursuant to the terms of a plea bargain, other counts were dismissed, and Alcorn was sentenced to 16 months in state prison. On appeal Alcorn challenges the de...
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Opinion Desiree Rae Lankster, a minor, sued Alpha Beta Company for damages for personal injuries. Alpha Beta won (by a vote of nine to three) and Desiree moved for a new trial on grounds of juror misconduct. Her motion was denied and she appealed, presenting us with a record sufficient to establish juror misconduct but insufficient to determine whether the misconduct was prejudicial. We hold that...
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*715 Opinion Defendant, Kenneth Noel Hord, was convicted of one count of lewd and lascivious acts committed by use of force or fear (Pen. Code, § 288, subd. (b)) 1 and one count of continuous sexual abuse of a child (§ 288.5), arising from his molestations of his stepdaughter Monica. Defendant appeals, claiming numerous errors. The contentions discussed in the unpublished portion of this op...
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ORDER GRANTING REQUEST FOR ENFORCEMENT OF SUBPOENAS AND DENYING REQUEST FOR COSTS AND ATTORNEY’S FEES. I. This proceeding comes before the court on the application of the United States Equal Employment Opportunity Commission (“the Commission”) for an order enforcing three administrative subpoenas served by the Commission upon respondent, County of San *290 Benito, and aw...
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ORDER Appellee Foglér’s petition for rehearing is granted and the orders filed December 21, 1992 are withdrawn. This Order does not affect the withdrawal of the October 25, 1991 opinion, 947 F.2d 419, and dissenting opinion. OPINION Ronald S. Garlikov and James Flindall filed voluntary petitions for bankruptcy protection under Chapter 7 of the bankruptcy code on April 29, 1988. Reda S. Garlikov fi...
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MacDonald was convicted of various crimes involving unlawful possession and sale of firearms. He appeals on two issues, whether his army court-martial conviction was a sufficient basis for felon in possession under 18 U.S.C. § 922(g)(1), and whether the judge erred in the guidelines calculation of offense level for the gun sales. We affirm. MacDonald was court-martialed forty years ago for frau...
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I OVERVIEW In order to resolve a dispute with the Internal Revenue Service (IRS) regarding the tax treatment of certain partnership property, Ronald and Marla Pack (the Packs) executed a closing agreement with the IRS. The Packs filed this suit against the United States (Government) seeking a tax refund for interest assessed on their tax deficiency. They contend that the closing agree...
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This case presents a conflict between a federal bankruptcy proceeding and a state criminal proceeding, in which the bankruptcy court opinion (as applied by the federal district court) effected the release of an Oregon State prisoner convicted of rape by voiding the State’s probation revocation. We vacate and remand. FACTS & PROCEDURAL HISTORY On the night of December 15,1989, Appe...
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ORDER REMANDING STATE LAW CLAIM In April 1991, defendant ADP Automotive Claims Services, Inc. (“ADP”) hired plaintiff Sandra Barraclough as a temporary employee. This cause of action arises out of plaintiffs allegation that on September 30, 1991, ADP wrongfully terminated her because of her speech impairment and physical handicap. Barraclough sued ADP in Superior Court of the State of Cal...
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Opinion The instant case presents an issue of first impression, i.e.: May school districts qualify as “special districts” within the meaning of the Landscaping and Lighting Act of 1972 (the Act)? (Sts. & Hy. Code, § 22500 et seq.) The trial court concluded they do and entered summary judgment in favor of defendants Whittier Union High School District and Bonita Unified *732 S...
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ORDER Defendant is one of six individuals charged with a series of violations of 15 U.S.C. § 1984, an offense popularly referred to as odometer fraud. Defendant pled guilty to three counts of this offense. Two of his co-defendants were also charged with, and pled guilty to, money laundering (18 U.S.C. § 1956). Following the pleas, a presentence investigation was ordered and a presentence repo...
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ORDER VACATING BANKRUPTCY COURT’S DECLARATORY RELIEF IT IS HEREBY ORDERED: Appellant INTERNAL REVENUE SERVICE [hereinafter “I.R.S.”] appeals from a declaratory judgment by the Bankruptcy Court authorizing IRVING SULMEYER [hereinafter “Trustee”] to file a consolidated tax return. This Court VACATES the Bankruptcy Court’s judgment because the Bankruptcy Court lacked jurisdiction. ...
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This appeal is from the decision of the Trademark Trial and Appeal Board (TTAB or Board) of the United States Patent and Trademark Office (PTO), affirming the Examining Attorney’s refusal to register the mark FOUR SEASONS BILTMORE of Four Seasons Hotels Limited (Four Seasons), for “resort innkeeping services,” 1 on the basis of likelihood of confusion under section 2(d) of the Lanham...
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Opinion Pursuant to California Rules of Court, rule 62 et seq., we accepted a transfer of this case from the Appellate Department of the Riverside Superior Court. The sole issue presented by this appeal is the adequacy of the advance publicity of a sobriety checkpoint. The trial court found there was insufficient advance publicity for the checkpoint, and consequently, it granted a motion brough...
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Opinion The Agricultural Labor Relations Board (ALRB) petitions for a writ of mandate after the superior court stayed ALRB administrative proceedings seeking to impose derivative liability on Mario Saikhon, the *751 Saikhon Family Trust dated June 3, 1988, and its trustees. We conclude the derivative liability proceedings are properly before the ALRB and should not have been stayed by the sup...
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Opinion A jury convicted appellant of possessing a deadly weapon while lawfully confined in a jail. (Pen. Code, 1 § 4574, subd. (a).) 2 Appellant admitted three state prison prior felony convictions (§ 667.5, subd. (b)). *741 Appellant contends three errors require reversal: instructional error, admitting a People’s exhibit, and ineffective assistance of counsel. We find no prejudicial ...
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15 Cal.App.4th 41 (1993) 18 Cal. Rptr.2d 617 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; EARL FRANK WESTBROOK, Real Party in Interest. Docket No. D017961. Court of Appeals of California, Fourth District, Division One. April 22, 1993. *43 COUNSEL Edwin L. Miller, Jr., District Attorney, Evan G. Miller, Deputy District Attorney, Daniel E. Lungren, Attorney General...
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991 F.2d 746 127 Lab.Cas. P 33,061, 1 Wage & Hour Cas.2d(BNA) 637 George C. ARMITAGE, Alan P. King, Ronnie A. Lewis, Kerry B.Swiggum, Michael D. Sword, Eric Aikin, Brian C. Cornett,Charles August Franco, William J. Greaves, John E.Griffiths, Jr., Scott W. Haygood, William J. Hull, RichardC. Kohr, Jesse R. Lewis, Jr., Lisa K. Lyons, Terry F. Lyons,Mark D. Marr, D.J. Moore, Dale Wayne P...
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Appellant Richard Carlton Risher claims that his counsel’s failure to advise him before he pleaded guilty that he might be sentenced under the Sentencing Reform Act constituted ineffective assistance of counsel in violation of the Sixth Amendment. The district court rejected the claim and denied his petition for habeas corpus under 28 U.S.C. § 2255. We reverse and remand to the district court f...
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Alton Clark Bingham lied about his name when he sold securities through a brokerage firm. We consider whether that lie constituted securities fraud under 17 C.F.R. § 240.10b-5 (1992) (“Rule 10b-5”). Bingham sold securities through a brokerage firm under the name of his recently deceased client, Howard Láveme Crow, for whom Bingham had served as an accountant. The securities he sold were is...
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Anthony W. Karambelas appeals from the district court’s order which dismissed his complaint for wrongful termination against Hughes Areraft Company (Hughes) with prejudice. Karambelas had filed his complaint in the California Superior Court, but Hughes removed it to the district court. Karambelas claims, among other things, that the district court did not have removal jurisdiction. We agree, re...
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992 F.2d 977 23 Envtl. L. Rep. 20,845 INLAND EMPIRE PUBLIC LANDS COUNCIL, a Washington non-profitcorporation; Kettle Range Conservation Group, a Washingtonnon-profit corporation; Pend Oreille Environmental Team, aWashington non-profit corporation; The SpokaneMountaineers, a Washington non-profit corporation; SpokaneAudubon Society, a Washington non-profit corporation;Inland Northwest W...
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994 F.2d 595 1993-1 Trade Cases P 70,213, 38 Fed. R. Evid.Serv. 1180FEDERAL TRADE COMMISSION, Plaintiff-Appellee,v.FIGGIE INTERNATIONAL, INC., Defendant-Appellant. No. 91-55367. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 7, 1992.Decided May 7, 1993. Jack R. White, Hill, Farrer & Burrill, Los Angeles, CA, for defendant-appellant. Da...
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Opinion Plaintiff, Native Sun/Lyon Communities, a California general partnership (Native Sun), appeals “from the ‘Statement of Decision,’ filed on *896 March 12, 1992, rendering judgment in favor of respondents on the first, second and third causes of action of plaintiffs First Amended Petition for Writ of Mandate and Complaint, as modified and confirmed in the ‘Order On Appl...
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992 F.2d 984 Charles CAMPBELL, Petitioner-Appellant,v.James BLODGETT, Superintendent, Washington StatePenitentiary, Walla Walla, Washington; Kenneth O.Eikenberry, Attorney General, State ofWashington, Respondents-Appellees. No. 89-35210. United States Court of Appeals,Ninth Circuit. May 7, 1993. James E. Lobsenz, Carney, Badley, Smith & Spellman, Seattle, WA, for pe...
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Cheryl Smith appeals a summary judgment which denied. her claim for loss of consortium in her action against the shipowner on whose vessel her husband sustained an injury. We affirm. The Supreme Court in Miles v. Apex Marine Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) precluded actions for loss of society under the Jones Act, 46 U.S.C.App. § 688, and general admiralty law. We ag...
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ORDER On April 19, 1993, we issued an unpublished order denying the application to this case of the automatic stay provision of Ninth Circuit Rule 9-1.2(d). On the same day, appellant filed an emergency motion for reconsideration of the court’s order, which was denied the following day. We issue this published order to explain the court’s decision. On March 5, 1993, the district court sentenc...
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Scott C. Smith, an inmate in the Washington State Penitentiary, appeals from a district court’s dismissal of his 42 U.S.C. .§ 1983 civil rights action that alleged that he was denied due process when prison officials placed him in administrative segregation (ad-seg). The district court dismissed his action, holding that prison officials were entitled to qualified immunity. We AFFIRM on other grou...
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993 F.2d 676 36 ERC 1657, 23 Envtl. L. Rep. 20,843 MONTANA POLE & TREATING PLANT and Torger L. Oaas, Plaintiff-Appellant,v.I.F. LAUCKS AND COMPANY; Monsanto Chemical Company,Reichhold Chemicals, Inc.; Dow Chemical Company,Inc., Defendants-Appellees.MONTANA POLE & TREATING PLANT and Torger L. Oaas, Plaintiff-Appellee,v.I.F. LAUCKS AND COMPANY; Monsanto Chemical Company, Defendant...
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James Lonczak appeals his 120-month sentence imposed following his guilty plea to two counts of arson on the public domain, in violation of 18 U.S.C. § 1855 (1988). Lonc-zak contends the district court erred by sentencing him as a career offender under United States Sentencing Guidelines (“U.S.S.G.”) §§ 4B1.1 and 4B1.2 (Nov. 1989). He argues that his prior felony conviction on June 7, 1965 for ...
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The National Labor Relations Board (the “Board”) applies for enforcement of its second supplemental decision and order issued against the International Brotherhood of Electrical Workers, Local 112, AFL-CIO (the “Union”). The Board’s order requires the Union to pay four journeymen electricians the sum of $241,830.15, to compensate them for losses of pay suffered because of the Union’s discrimina...
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Opinion Plaintiff filed this action to recover for personal injuries sustained when she was injured by defendants’ dog. The complaint alleges two counts sounding respectively in strict liability and negligence. A jury returned a verdict in favor of defendants. On appeal, plaintiff contends the trial court erred in admitting certain evidence and in refusing to give certain instructions, including ...
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Opinion Factual and Procedural History The issues in this case are (1) whether defendant, who spent most of the time before sentencing on house arrest as a condition of release on his own *1162 recognizance, is entitled to presentence custody credit pursuant to Penal Code section 2900.5, as amended in 1991; (2) if not, whether denying him such credits, while allowing the...
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Opinion This is an appeal by the Caiafa Professional Law Corporation from an order denying a petition to compel arbitration and staying further proceedings in the matter. We affirm. Facts and Proceedings Below Attorney Douglas Caiafa, practicing law as “Caiafa Professional Law Corporation” entered into a written agreement with State Farm Fire & Casualty Company (hereafter State ...
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Opinion This original writ proceeding arises out of a dispute over an application for a license for the construction and operation of a low-level radioactive waste disposal facility in Ward Valley near the City of Needles in the Southern California desert. 1 The petitioners challenge an order of the Department of Health Services (the department) for administrative proceedings i...
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Appellees, forty migrant and seasonal agricultural workers, sued appellants, Washington farmers, for violations of the Migrant and Seasonal Agricultural Worker Protection Act (MSAWPA), Fair Labor Standards Act *998 (FLSA), and Washington law. The case was tried before a magistrate judge, who found in favor of the workers and awarded them actual and statutory damages under the MSAW-...
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Walter Donald Beamon and Jeffrey John MeMillin appeal their convictions following guilty pleas for attempted possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) & 846. They both argue that their convictions should be reversed because their Sixth Amendment right to a speedy trial was violated. Beamon also appeals his sentence, arguing that the district ...
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Quintín L. Beck appeals his sentence imposed after pleading guilty to being a felon in possession of a firearm. He argues that the district court erred by departing upward from the applicable sentencing guideline range. We affirm the district court’s decision to depart, but we vacate and remand for resentencing to allow the court to explain the extent of its departure. DISCUSSION Beck argues ...
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Dr. Basil N. Spirtos, Debtor, appeals the Bankruptcy Appellate Panel’s (BAP) decision that Debtor’s interest in two pension plans maintained by Debtor’s medical corporation was not exempt under California law. We conclude that this appeal is not moot, but we vacate the decisions of the bankruptcy court and the BAP regarding exemption and remand the case for a determination of whether the plans ar...
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995 F.2d 1448 UNITED STATES of America, Plaintiff-Appellee,v.Windyceslau D. LORENZO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Roger ELVICK, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Nathan K. BROWN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Ron KNUTT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.T...
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993 F.2d 1405 37 Fed. R. Serv. 686 UNITED STATES of America, Plaintiff-Appellee,v.Sharon Ann RAHM, Defendant-Appellant. No. 92-10429. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1993.Decided May 11, 1993. Brian P. Berson, Asst. Federal Public Defender, San Francisco, CA, for defendant-appellant. Martha Boersch and Harry Litman, As...
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Kessee was convicted of conspiracy, possession with intent to distribute, and carrying a firearm during a narcotics transaction in connection with sales of cocaine base. 18 U.S.C. § 924(c)(1); 21 U.S.C. §§ 841(a)(1) and 846. We reverse, because he was entitled to present his entrapment defense to the jury, and was prevented from doing so. Kessee participated in sales of cocaine base to an under...
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*1176 Opinion Introduction Elizabeth C. A. Armondo appeals from the denial of a peremptory writ challenging the Department of Motor Vehicles’ (DMV) suspension of her driving privilege. The appeal poses two questions: first, whether a “disappearing lawful arrest”—i.e., an arrest which, by operation of law, is subsequently deemed only a detention—may support an administrative per se suspensio...
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Opinion Petitioner Sharon French Wallace seeks a writ requiring respondent superior court to dismiss or stay a motion to modify child custody in deference to Kentucky where a child custody proceeding is pending. Although we disagree with the court’s conclusion that Kentucky does not have jurisdiction under the Uniform Child Custody Jurisdiction Act *1184 (UCCJA), we conclude ...
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Opinion Raymond James Bradley appeals a judgment convicting him of kidnapping with the intent to commit rape (Pen. Code, 1 §§ 207, 208, subd. (d)), assault with the intent to commit rape (§ 220), and sexual battery (§ 243.4, subd. (a)). Bradley contends his slight movement of the victim cannot support a conviction of kidnapping as a matter of law; there was insufficient evidenc...
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OPINION FACTS Debtors Ray and Carolyn Davenport (“Debtors”) are farmers who own 24.22 acres of land in California worth $354,462. In August of 1989, the Debtors filed a petition under Chapter 12 of the Bankruptcy Code, 11 U.S.C. §§ 1200-1241. 1 *552 The Debtors’ land secures an obligation to Western Farm Credit Bank and Sierra-Bay Federal Land Bank Associati...
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ORDER In appeal No. 91-10584, Percy James Pearce appeals from his conviction following his guilty plea to armed bank robbery in violation of 18 U.S.C. § 2113(a) & (d). He contends that the district court erred by denying his motion to withdraw his plea. The government contends that we lack jurisdiction to consider this appeal. We remand. I. Pearce pled guilty on Decemb...
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Victor E. Braun (“Braun”) appeals the decision of the Board of Immigration Appeals (“BIA”) finding him statutorily ineligible for a waiver of deportation under Section 241(f) of the Immigration and Nationality Act, 8 U.S.C. § 1251(f) (“the Act”). Braun also appeals the BIA’s alternative ruling that, even if it had found him to be statutorily eligible, it still would exercise its discretion to d...
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992 F.2d 1480 143 L.R.R.M. (BNA) 2249, 125 Lab.Cas. P 10,681 Nick MARINO, Plaintiff-Appellant,v.WRITERS GUILD OF AMERICA, EAST, INC.; Writers Guild ofAmerica, West, Inc.; Francis Ford Coppola; andMario Puzo, Defendants-Appellees. No. 91-56497. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 6, 1993.Decided May 12, 1993. Gary E. Gans, Keno...
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Opinion We affirm the trial court’s grant of summary judgment to the defendant. Background Plaintiff Bao Tan Diep, doing business as Maxim’s Mattress Co., housed his business in a warehouse, which was covered by an insurance policy issued by defendant California Fair Plan Association. Plaintiff leased the property from Wendy and Allen Hart. The Harts contracted with Gruver Const...
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Opinion The subject of this case is the proper method to be used in valuing, for property tax purposes, a possessory interest held by a franchisee selling food and beverages at San Diego’s Jack Murphy Stadium. The interest was reassessed in 1983 because of an amendment to the existing concession agreement between the City of San Diego (City) and Service America Corporation (Service Americ...
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Opinion Plaintiffs and appellants Ronald A. Cawdrey (Cawdrey) and Mark Conte (Conte) appeal the judgment denying their petition for writ of mandamus and application for injunctive relief from the refusal of defendants and respondents City of Redondo Beach (the City) and City Clerk John L. Oliver to permit Cawdrey to seek reelection to a third term on the city council. The primary iss...
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Richard C. Price appeals from the August 7, 1991, decision of the United States Patent and Trademark Office Board of Patent Appeals and Interferences, awarding the subject matter of the count in Patent Interference No. 102,101 to Dale R. Sym-sek and Nancy P. Regelin (collectively “Symsek”). The board’s decision is vacated and the case is remanded to the board. I. BACKGROUND On Fe...
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The Facts Defendant Thomas Spiegel was the Chief Executive Officer and Chairman of Columbia Savings and Loan, a thrift institution that— like so many others — collapsed in the twilight of the 1980’s. Having discovered what it believed were violations of various statutes and regulations in Spiegel’s conduct at Columbia, the Office of Thrift Supervision starts ed an administrative proceeding...
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991 F.2d 1518 UNITED STATES of America, Plaintiff-Appellee,v.Homer Lee TUCKER, Defendant-Appellant. No. 87-5090. United States Court of Appeals,Ninth Circuit. May 13, 1993. Before: WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O...
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Opinion We granted review in this case to settle questions regarding the scope of discovery of peace officers’ personnel records under Evidence *50 Code section 1045. We must determine whether a juvenile is entitled to discover the outcome of disciplinary proceedings stemming from an earlier citizen’s complaint filed against an arresting officer (see Pen. Code, § 832.5; Evid....
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Opinion This appeal is from a trial court order directing California’s Insurance Commissioner to accept three late claims in the liquidation proceeding against an insolvent insurer. We reverse as to one of the claims and affirm as to the others. Factual Background Carboline Company, a Missouri corporation, manufactured and sold roofing and surface coating products. Carboline was insured by ...
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Opinion Teresa Diaz brought suit for medical malpractice against Samuel Merritt Hospital (Hospital) and several physicians (Doctors). Diaz *1270 appeals from a judgment entered pursuant to the terms of a settlement. (Code Civ. Proc., § 664.6.) 1 She contends section 664.6 was inapplicable because the written settlement on which the court based its judgment was signed only by Diaz’s attorney...
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MEMORANDUM AND ORDER This is a wrongful death action alleging design defect, manufacturing defect, negligence and failure to warn. The action arises out of the death of plaintiffs’ decedent, Air Force Captain Steven C. Sundstrom, when he ejected from his F-16 fighter jet after a head-on collision with another F-16 jet during a test flight over Germany. On October 11,1991, defendants moved for...
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994 F.2d 570 Jack GERRITSEN, Plaintiff-Appellant,v.CITY OF LOS ANGELES, et al., Defendants-Appellees.Jack GERRITSEN, Plaintiff-Appellant,v.CITY OF LOS ANGELES, et al., Defendants-Appellees. Nos. 91-55470, 92-55103. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 3, 1993.Decided May 14, 1993. Jack Gerritsen, Monterey Park, CA, for plaintiff-appell...
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Opinion Defendant, Walk on Water, Inc., appeals from postjudgment orders taxing costs, denying relief under Code of Civil Procedure section 473, and denying reconsideration. The combined effect of these orders was to preclude appellant from recovering contractual attorney fees, in a case in which it had prevailed, because of failure to file a motion together with the cost bill claiming them. We...
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Opinion Michael James Moriarty appeals from a judgment against him on a promissory note, arguing that the judgment is not supported by substantial evidence. Plaintiff Peter K. White, as trustee for his wife and Mr. and Mrs. John Fall, cross-appeals, arguing statute of limitations issues. We determine that the trial court applied the wrong statute of limitations and remand for recalculatio...
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C. A. 9th Cir. Certiorari granted....
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delivered the opinion of the Court. The question presented is whether the affirmance by the Court of Appeals for the Federal Circuit of a finding that a patent has not been infringed is a sufficient reason for vacating a declaratory judgment holding the patent invalid. Respondent, Morton International, Inc. (Morton), is the owner of two patents on chemical compounds used in polyvinyl chloride (PVC...
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HWE, Inc. (HWE) brought suit against JB Research, Inc., Hammaeher Schlemmer, and Does I-X (all defendants here styled as JB) for appropriation of the trade dress of its massage table in violation of the Lanham Act, 15 U.S.C. § 1125(a) and Cal.Bus. & Prof. Code § 17200. JB counterclaimed. Finding that there was no factual dispute as to HWE’s product’s lack of non-functional design and lack of se...
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In this drug conspiracy case involving a “reverse sting,” we must decide whether, for sentencing purposes, the government or the defendant bears the burden of proving facts relevant to determining the object of the conspiracy. *682 I Barnes negotiated on behalf of his code-fendants and himself for the purchase of fifty kilograms of cocaine from undercover government agents. The transaction ...
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993 F.2d 1419 UNITED STATES of America, Plaintiff-Appellee,v.Reshat SHABANI, a/k/a Lee Shabani, Defendant-Appellant. No. 91-30224. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 8, 1992.Decided May 17, 1993. Alan M. Caplan, Bushnell, Caplan & Fielding, San Francisco, CA, for defendant-appellant. Karen L. Loeffler, Asst. U.S. Atty., Anch...
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On July 26, 1990, the United States brought suit to reduce to judgment unpaid federal tax assessments made against Orville Wayne McGee that totalled $92,957.28, plus interest. McGee moved to dismiss the suit for failure to state a claim on the ground that it was not brought within the six-year limitations period of 26 U.S.C. § 6502(a)(1988). McGee asserted that the complaint failed to allege th...
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Ronald Henderson pleaded guilty to being a felon in possession of a firearm. Henderson has prior convictions for murder and child molestation. At Henderson’s sentencing, the district court found that Henderson did not qualify as a career offender. The court made the preliminary finding that Henderson’s base offense level was 12 and with acceptance of responsibility his adjusted offense level was 1...
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Opinion This petition, brought under Code of Civil Procedure section 437c, subdivision (l), seeks a writ of mandate directing the superior *1191 court to reverse its order granting summary adjudication. The complaint which was the subject of the summary judgment motion contained five causes of action. Summary judgment was denied because the court found certain of the causes of action to be ...
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5 Cal.4th 59 (1993) 851 P.2d 27 19 Cal. Rptr.2d 233 THE PEOPLE, Plaintiff and Respondent, v. SAMMY KING III, Defendant and Appellant. Docket No. S026827. Supreme Court of California. May 17, 1993. *62 COUNSEL Carmella F. Simoncini, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Harley D...
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Plaintiff Transamerica Insurance Company (Transamerica) was the performance bond surety on two construction contracts with defendant United States (United States or government), the second of which was defaulted on by the contractor. Trans-america sued the government, under the doctrine of equitable subrogation, for recovery of funds payable by the government to the contractor under an equitabl...
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K. Kay Shearin appeals the order of the United States Claims Court 1 dismissing her claim. 2 We affirm. Issue Whether the Claims Court properly dismissed Shearin’s claim for attorney fees under the Criminal Justice Act. Facts Ms. Shearin represented four indigent appellants in criminal proceedings before the United States Court of Appeals for th...
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ORDER On September 14, 1992, the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for a 1978 conviction in Belfast, Northern Ireland. 1 Smyth has indi *500 cated that he will raise a defense to extradition pursuant to Article 3(a) of the Supplemental Extradition Treaty between the Government of the United States and the G...
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In 1988, Pacific Telesis Group (PTG) brought an action against International Tel-esis Communications (ITC) for infringement of its service mark in violation of the Lanham Act, 15 U.S.C. § 1114 and Cal.Bus. and Prof. Code § 14400; for false designation of origin contrary to the Lanham Act, 15 U.S.C. § 1125(a); and for unfair competition contrary to Cal.Bus. and Prof.Code § 17200. The district co...
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993 F.2d 1423 37 Fed. R. Serv. 267 Robert E. HENRY, Petitioner-Appellee,v.Wayne ESTELLE, Warden, Respondent-Appellant. No. 91-55691. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 9, 1991.Decided May 18, 1993. Everett B. Clary, O'Melveny & Myers, Los Angeles, CA, for petitioner-appellee. David F. Glassman, Deputy Atty. Gen., Los Ang...
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ORDER We make clear today that we will not entertain appeals from a litigant who refuses to comply with a previous order of this court. Because Hymes has not paid $1000 in sanctions, which we imposed in 1990, we dismiss his appeal. I Since 1977, Hymes has been locked in a dispute with the Internal Revenue Service. It insists that he owes unpaid taxes, now amounting to nearly $60,...
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ORDER The Supreme Court granted the petition for writ of certiorari, vacated the judgment, and then remanded this cáse to this court for further consideration, — U.S. -, 113 S.Ct. 1038, 122 L.Ed.2d 348, in light of Farrar v. Hobby, — U.S. -, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992). This court now remands the matter to the district court to re-examine its determination of the reasonableness of...
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992 F.2d 243 Jenny Lisette FLORES, a minor, by next friend Mario HughGALVEZ-MALDONADO; Dominga Hernandez-Hernandez, a minor, bynext friend Jose Saul Mira; Alma Yanira Cruz-Aldama, aminor, by next friend Herman Perililo Tanchez, Plaintiffs-Appellees,v.Edwin MEESE, III; Immigration & Naturalization Service;Harold Ezell, Defendants-Appellants. No. 88-6249. United States Court of Ap...
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Fruit of the Loom, Inc. (FOL) brought suit against Ken Girouard, d/b/a Two Left Feet (TLF), contending that TLF had infringed its trademarks in violation of the Lanham Act, 15 U.S.C. 8 1114(1); had used marks falsely indicating the origin of its goods in violation of 15 U.S.C. § 1125(a); was engaged in unfair competition with FOL in violation of California Bus. & Prof.Code, § 17200, ...
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Aleñe Gates (Gates) brought a civil rights action under 42 U.S.C. § 1983 against John Rivera (Rivera), a Santa Ana police officer, for using excessive force against her son, Marvin McGensey by intentionally shooting him to death. A jury returned a verdict for Rivera, and judgment was entered in his favor. Finding the evidentiary rulings attacked on appeal to be correct or, in two cases, harmless ...
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FACTS AND PROCEEDINGS Mark Hirsch Horodner appeals the district court’s denial of his petition filed under 28 U.S.C. § 2265. In 1987, Horodner bought a shotgun. It didn’t work properly so he took it back to the dealer to have it repaired. He was subsequently charged and convicted of two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). One count was pr...
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Opinion Irving Mouton appeals his convictions for second degree murder (Pen. Code, § 187) 1 and being an accessory to a felony (§ 32). He raises several issues regarding application of the “natural and probable consequences” rule for extended liability of an aider and abettor, as well as other claims of error. We conclude the court’s failure to instruct on the target crimes def...
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Opinion The trial court, in a summary judgment proceeding, concluded Redwoods Community College District (District) improperly denied Kathleen Kistler, Allen Keppner, and Gary Peterson (respondents), certain of its outgoing administrators, their accrued vacation pay. The District had reassigned respondents to work as faculty members, but ordered them off the premises in order to use up th...
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Opinion Plaintiff Sharon A. Schaffield appeals from a verdict in favor of defendant Pierre G. Abboud, doing business as AM/PM Mini *1136 Market, on Schaffield’s action against Abboud for negligently selling an alcoholic beverage to an obviously intoxicated minor. Schaffield contends the court erred in (1) improperly instructing the jury on the definition of obvious intoxication, (2) granting ...
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Opinion Michael Schaefer sued Leon L. Williams and M. Larry Lawrence for breach of contract and defamation over a 1990 campaign brochure. Lawrence successfully demurred to the contract cause of action. Williams prevailed on the contract cause of action against him by securing a judgment on the pleadings. Subsequently, the trial court granted summary *1245 judgment in favor of both defendants ...
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MEMORANDUM OPINION Defendants the Robert Mayer Corporation, the Robert Mayer Corporation Employee Benefit Plan, Ocean View Estates Management, Inc., the Waterfront, Inc., and the Waterfront Hilton moved to dismiss Plaintiff Hoag Memorial Hospital’s (“Hoag Memorial”) First Amended Complaint (“FAC”) for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Defend...
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993 F.2d 1428 Util. L. Rep. P 13,938, 23 Envtl. L. Rep. 20,862 MUCKLESHOOT INDIAN TRIBE, Petitioner,v.FEDERAL ENERGY REGULATORY COMMISSION, Respondent,City of Seattle, Respondent-Intervenor. No. 91-70519. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 1, 1993.Decided May 19, 1993. Robert L. Otsea, Jr., Office of the Tribal Atty., Muckleshoot...
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994 F.2d 646 61 USLW 2723, 83 Ed. Law Rep. 957 UNITED STATES of America, Plaintiff-Appellee,v.Fred C. WILLIAMS, Defendant-Appellant. No. 92-15042. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 15, 1993.Decided May 19, 1993. Jonathan Rothschild, Mesch, Clark & Rothschild, Tucson, AZ, for defendant-appellant. James D. Whitney, Asst....
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Eric Kelly challenges his sentence under the Guidelines for counterfeiting steroids. He disputes the district court’s measurement of the extent of his fraud and its decision to enhance his sentence for “more than minimal planning” and, at the same time, for his leadership role in the offense. See U.S.S.G. §§ 2F1.1(b)(2) & 3Bl.l(a). Kelly also argues that the district court erred in c...
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994 F.2d 1370 143 L.R.R.M. (BNA) 2305, 61 USLW 2740,126 Lab.Cas. P 10,834,83 Ed. Law Rep. 963 Debra J. GRUNWALD; Lewis N. Adams; Vicki S. Burdeaux;Maria Buselle, et al., Plaintiffs-Appellants,v.SAN BERNARDINO CITY UNIFIED SCHOOL DISTRICT; ShelbyObershaw, President, SBCUSD; Hardy L. Brown, VicePresident, SBCUSD; Elisa Diaz, School Board Member, et al.;San Bernardino Teachers Associati...
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Pedro Aponte (Aponte), a California state prisoner, appeals pro se the district court’s denial of his habeas petition. The district court had jurisdiction under 28 U.S.C. §§ 2241, 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. §§ 1291, 2253 and affirm. I. FACTS AND PROCEDURAL HISTORY Aponte was arrested on November 1,1987, for various drug off...
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Opinion As a result of a trial by jury, appellant Jeffrey Hawkins was convicted of battery with serious bodily injury, in violation of Penal Code section 243, subdivision (d). The jury also found true an enhancing allegation that appellant intentionally inflicted great bodily injury on the victim, within the meaning of Penal Code section 12022.7. The trial court sentenced appellant to the low...
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On August 29, 1988, the district court sentenced petitioner Michael Owen Brannan (“Brannan”) to imprisonment for a term of 15 years for use of a counterfeit access device in violation of 18 U.S.C. § 1029(a)(1) and misuse of a social security number in violation of 42 U.S.C. § 408(g)(2). Brannan was deemed eligible to partake in a study pursuant to 18 U.S.C. § 4205(d), and on December 19, 1988, ...
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993 F.2d 1439 UNITED STATES of America, Plaintiff-Appellee,v.Douglas Elmo CANON, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Robert John DELANG, Defendant-Appellant. Nos. 91-50853, 91-50854. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 3, 1993.Decided May 20, 1993. Carolyn Chapman, San Diego, CA, for defendant-appellant C...
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993 F.2d 1435 61 USLW 2795 UNITED STATES of America, Plaintiff-Appellee,v.Mark Roy ANDERSON, Defendant-Appellant. No. 91-50395. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 9, 1992.Decided May 20, 1993. Loretta Shartis, Sherman Oaks, CA, for defendant-appellant. George Cardona, Asst. U.S. Atty., Los Angeles, CA, for plaintiff-appellee...
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994 F.2d 658 36 ERC 1730, 23 Envtl. L. Rep. 20,854 UNITED STATES of America, Plaintiff-Appellant,v.James Allen FERRIN, Defendant-Appellee. No. 92-50288. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 10, 1992.Decided May 20, 1993. Melanie K. Pierson, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellant. Thomas H. Senters, San Diego,...
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Donald McAnineh, who pleaded guilty to mail fraud and mailing threatening communications, appeals the sentence imposed by the district court. We affirm. FACTS AND PROCEDURAL HISTORY From April of 1990 through March of 1991, McAnineh waged a campaign of harassment and intimidation against several individuals in Oregon and Washington whom he did not know but believed to be interracially married...
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Opinion Appellant was adjudicated a ward of the court (Welf. & Inst. Code, § 602) and placed on probation after the juvenile court found true allegations that appellant had resisted arrest (Pen. Code, § 148) and possessed cocaine (Health & Saf. Code, § 11351). Appellant asserts that he was unlawfully detained without reasonable suspicion. He therefore claims that (1) there was insufficien...
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Opinion After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant James Arthur Souza pleaded no contest to possession of methamphetamine for sale while armed with a firearm (Health & Saf. Code, § 11378; Pen. Code, §§ 12022, subd. (c), 1203.073, subd. (b)(2)), driving with a suspended or revoked driver’s license (Veh. Code, § 14601.1, subd. (a)), resisting arrest (P...
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Opinion Introduction In this shareholder derivative action plaintiff Rodney B. Shields is suing on behalf of Teledyne, Inc. (the Company) to recover for the Company damages it allegedly suffered due to the unlawful activities of certain employees of a subsidiary of the Company. The defendants to this action may be divided into three groups: The directors of the Company (Henry E. ...
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Opinion Elia Najor appeals a judgment in favor of George Ateeq after the jury returned a special verdict in Ateeq’s favor and the court subsequently denied Najor’s motion for judgment based on a statute of limitations defense. Najor asserts the court erred in finding he was estopped from pleading the statute of limitations defense because of the duress he imposed on Ateeq through wrongful...
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Opinion This case involves the ongoing dispute between two neighbors, plaintiff Arnold Luster and defendant R.S. Collins, over an easement 30 feet wide and about 1,200 feet long, located on the borders of their respective properties. The easement burdens Collins’s property. Collins appeals the judgment entered after Luster successfully moved to confirm three arbitration awards dated ...
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5 Cal.4th 122 (1993) 851 P.2d 42 19 Cal. Rptr.2d 248 In re WILBUR F. LITTLEFIELD on Habeas Corpus. Docket No. S025426. Supreme Court of California. May 20, 1993. *124 COUNSEL Wilbur F. Littlefield, Public Defender, in pro. per., Laurence M. Sarnoff, Stuart Alan Chapman and Albert J. Menaster, Deputy Public Defenders, for Petitioner. Chase, Rotchford, Drukker & Bogust, John A. Daly, Joan E. He...
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*87Opinion In this case we address several of the legal questions raised by recent advances in reproductive technology. When, pursuant to a surrogacy agreement, a zygote1 formed of the gametes2 of a husband and wife is implanted in the uterus of another woman, who carries the resulting fetus to term and gives birth to a child not genetically related to her, who is the child’s “natural mother” und...
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Appellant Anthony Myers challenges both the district court’s finding that he was competent to enter into a plea agreement, in which he pled guilty to conspiracy to manufacture methamphetamine with intent to distribute, and the district court’s sentence for this crime. We affirm the district court in all respects. *714 I. FACTS AND PRIOR PROCEEDINGS In December of 1989, undercover govern...
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993 F.2d 710 83 Ed. Law Rep. 53 Michael E. TAYLOR, Plaintiff-Appellant,v.The REGENTS OF the UNIVERSITY OF CALIFORNIA, Clara SueKidwell, Daniel F. Melia, Joseph Cerny, Lucien Lecam,Rudolph Beran, Nora B. Lee, Eric L. Lehmann, Jim Pitman, andDavid Brillinger, Defendants-Appellees. No. 92-16022. United States Court of Appeals,Ninth Circuit. Submitted May 12, 1993.*Decided May 21, ...
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C. A. 4th Cir. Certiorari denied. Justice Thomas took no part in the consideration or decision of this petition. Opinion of respecting the denial of the petition for writ of certiorari. Whether it is constitutional for a State to have a men-only military school is an issue that should receive the attention of this Court before, rather than after, a national institution as venerable as the Virgini...
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Petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit. Granted....
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App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari granted....
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508 U.S. 200 (1993) KEENE CORP. v. UNITED STATES No. 92-166. United States Supreme Court. Argued March 23, 1993. Decided May 24, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *201 Souter, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Blackmun, O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinio...
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delivered the opinion of the Court.† In this case, we are concerned with the legality of an employer’s contributions of unencumbered property to a defined benefit pension plan. Specifically, we must address the *154question whether such a contribution, when applied to the employer’s funding obligation, is a prohibited “sale or exchange” under 26 U. S. C. §4975 so that the employer thereby incurs t...
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The district court ruled California’s statutory scheme for providing work credits to convicted murderers violates the equal protection clause. Brodheim v. Rowland, 783 F.Supp. 1245 (N.D.Cal.1991). The court’s interpretation of California law was expressly repudiated by In re Singer, 13 Cal.App.4th 1755, 17 Cal.Rptr.2d 395 (6th Dist.1993). “We are bound by that state court’s construction of it...
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993 F.2d 1442 Energy Mgt. P 26,679, 23 Envtl. L. Rep. 20,833 STATE OF NEVADA, Petitioner,v.UNITED STATES DEPARTMENT OF ENERGY, Respondent. No. 92-70055. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 12, 1993.Decided May 24, 1993. Harry L. Swainston, Deputy Atty. Gen., Carson City, NV, and James H. Davenport, Special Deputy Atty. Gen., Olymp...
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994 F.2d 666 Hugh H. HOLMAN and Gayle L. Holman,Plaintiffs-Appellants-Cross-Appellees,v.LAULO-ROWE AGENCY; George Laulo, individually; Terry Rowe,individually; George Laulo and Terry Rowe, d/b/aLaulo-Rowe Agency,Defendants-Appellees-Cross-Appellants. Nos. 91-35771, 91-35772. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1992.Decided May 24, 1993. ...
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In our previous amended opinion, Maag v. Wessler, 960 F.2d 773 (9th Cir.1992), we remanded to the district court for consideration of the appellants’ request for attorney fees under 42 U.S.C. § 1988. Upon remand, the district court issued an order that required the defendants to submit a motion and a brief in support of their request for attorney’s fees. On July 16, 1992, the distric...
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Opinion I. Introduction Defendant William Robert Turner appeals from a judgment of conviction entered upon his plea of nolo contendere to one count of the continuous sexual abuse of a child (Pen. Code, § 288.5) and an allegation that he *1693 occupied a position of special trust and committed an act of substantial sexual conduct, rendering him presumptively inel...
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*1677 Opinion Introduction Plaintiff appeals from summary judgments (Code Civ. Proc., § 437c) in a legal malpractice action arising from an industrial accident. 1 Facts In December 1987, Zurn Industries employed the 46-year-old plaintiff at a cogeneration plant construction project in Crow’s Landing, Stanislaus County. Zurn was a subcontractor and Kiewit In...
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MEMORANDUM AND ORDER These consolidated cost recovery actions arise under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), as amended by the Superfund Amendments and Reauthorization Act of 1986 (“SARA”), 42 U.S.C. § 9601 et seq. The actions concern Iron Mountain Mine, a parcel of land northwest of Redding, California, that for 100 ye...
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The order of the district court suppressing the evidence is vacated, and the case is remanded to the district court for further proceedings consistent with the decision of the Supreme Court of the United States in United States v. Padilla, — U.S. -, 113 S.Ct. 1936, 123 L.Ed.2d 635 (1993)....
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993 F.2d 1444 38 Fed. R. Serv. 1206 UNITED STATES of America, Plaintiff-Appellee,v.Glenn Randal FOPPE, Defendant-Appellant. No. 91-50606. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 4, 1992.Decided May 25, 1993. Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Stephen G. Larson, Asst. U.S. At...
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Opinion In this case we hold, in light of the Legislature’s intent to protect California citizens from the wilful misconduct of minors by specifically *1707 regulating parental supervision, that nonresident parents who send their minor child to obtain an education at a public institution cause a sufficient effect in California to enable its courts to exercise specific personal jurisdiction ov...
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Opinion An action is brought against a governmental entity. The governmental entity asserts as a defense the party’s failure to comply with the governmental claims statute. We hold, among other things, that through its conduct a governmental entity may be estopped from asserting failure to comply with the claims statute. We also hold the governmental entity breached a covenant of goo...
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*1582 Opinion Plaintiffs appeal from summary judgments granted in favor of defendants George T. R. Murai Farms, Inc., Murai Farms Retirement Trust, and George Murai (collectively referred to as Murai) and Ramon Navarro, doing business as Chiquito Navarro Ranch (collectively Navarro). (Code Civ. Proc., § 437c.) 1 Plaintiffs Esteban Raul Lucas and Jorge Reyes (plaintiffs...
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Opinion Hieu Chi Nguyen appeals from a sentence imposed on convictions for two counts of robbery (Pen. Code, § 211) 1 and one count of assault with a firearm (§ 245, subd. (a)(2)). We remand for the trial court to consider whether Nguyen should be transferred to the California Youth Authority for purposes of housing and rehabilitation. (Welf. & Inst. Code, § 1731.5, subd. (c).)...
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Opinion This case involves the imposition of two fees on a developer by a municipality as conditions of approval of a development project: (1) a $280,000 fee to mitigate the impact of a land-use change (the mitigation fee); and (2) a $33,220 fee in lieu of a requirement that art be placed on the development project (the in lieu art fee). The City of Culver City, the City Council of Culver...
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Opinion Petitioners Dee Rowe and S. Glover Rowe (collectively Rowe) seek a writ of mandate to overturn the trial court’s refusal to permit the amendment of Rowe’s complaint against the Church of Scientology of Orange County (Scientology) 1 to allege a claim for punitive damages. Such pre-pleading permission by the court is a requirement imposed by Code of Civil Procedure sectio...
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994 F.2d 670 20 U.C.C. Rep. Serv. 2d (West) 912 RUDIGER CHAROLAIS RANCHES, a Canadian corporation, Plaintiff-Appellant,v.VAN DE GRAAF RANCHES, a Washington corporation, Defendant-Appellee. No. 91-36002. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 5, 1993.Decided May 27, 1993. Stephen D. Phillabaum, Phillabaum & Ledlin, Spokane, WA, fo...
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ORDER DENYING MOTIONS TO REMAND On July 30, 1992, Trans World Airlines (“TWA”) flight 843, departing New York’s John F. Kennedy Arport for San Francisco, experienced an interruption of takeoff and crashed, igniting on impact. The plane was completely destroyed by flames but, miraculously, all passengers survived. Flight 843 passengers filed five lawsuits in San Francisco Superior Cou...
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*1823 Opinion I. Introduction In this case we hold that a Nevada cause of action to enforce gambling debts incurred at a casino for the purpose of providing the debtor with funds for gambling violates California’s public policy against gambling on credit and thus is unenforceable in this state. Metropolitan Creditors Service of Sacramento (MCS) challenges a municipal co...
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5 Cal.4th 228 (1993) 851 P.2d 802 19 Cal. Rptr.2d 520 THE PEOPLE, Plaintiff and Respondent, v. KATHRYN MARIE WELCH, Defendant and Appellant. Docket No. S025387. Supreme Court of California. May 27, 1993. *230 COUNSEL Bruce Hudson Towne for Defendant and Appellant. Fern M. Laethem, Public Defender, Ellen J. Eggers, Deputy Public Defender, and Madeline McDowell as Amici Curiae on behalf of Defendan...
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Opinion The cost of Anjanette Farace’s bone marrow transplant and chemotherapy exceeded half a million dollars. Fortunately, she was covered by the health plans provided by each of her divorced parents’ respective employers. In fact, both plans—to their credit—paid for the treatment, leaving Children’s Hospital of Orange County overpaid by some $511,000. The hospital deposited this m...
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Opinion Marine Wholesale/Warehouse Co., Inc. (Marine) appeals from a judgment granted in favor of the City of Los Angeles (City) in the amount of $10,034.06. *1837 We affirm based upon our finding that the City’s imposition of a gross receipts and payroll tax on Marine’s business operations is not preempted under the supremacy clause. Additionally, the tax does not violate t...
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Opinion Plaintiff and appellant Virginia G., a minor, by her guardian ad litem Kathleen Navejas (Virginia G.), appeals the judgment on the pleadings entered in favor of defendant and respondent ABC Unified School District (the District) in an action for damages for personal injuries allegedly sustained by Virginia G. due to sexual molestation by a teacher. Because Virginia G. may be able to s...
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Opinion Michael Peter Rush appeals from the judgment entered following a jury trial that resulted in his conviction of second degree robbery *23and grand theft of an automobile (Pen. Code, § 211 and former § 487h, subd. (a), now § 487, subd. 3), each with the use of a firearm (Pen. Code, § 12022.5), as alleged in a two-count information. He was sentenced to concurrent seven-year prison terms, comp...
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994 F.2d 674 143 L.R.R.M. (BNA) 2540, 61 USLW 2753,125 Lab.Cas. P 10,706 LOCAL JOINT EXECUTIVE BOARD OF LAS VEGAS, BARTENDERS UNIONLOCAL 165, CULINARY WORKERS' LOCAL UNION #226,Plaintiffs-Appellants,v.EXBER, INC., dba El Cortez Hotel, Defendant-Appellee. No. 91-16615. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 14, 1993.Decided May 28, 1993. ...
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994 F.2d 684 UNITED STATES of America, Plaintiff-Appellee,v.Kimbel A. LeMAUX, Defendant-Appellant. No. 92-10007. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1993.Decided May 28, 1993. Dennis P. Riordan, Riordan & Rosenthal, San Francisco, CA, for defendant-appellant Kimbel LeMaux. Thomas E. Flynn, Asst. U.S. Atty., Sacramento, CA,...
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994 F.2d 676 HISPANIC TACO VENDORS OF WASHINGTON, an unincorporatedassociation; Miguel Mejia; Antonio Mejia; CelsoPeralta; Joaquin Tiscareno; CeliaGarcia, Plaintiffs-Appellants,v.CITY OF PASCO, a municipal corporation, et al., Defendants-Appellees. No. 91-36031. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 5, 1993.Decided May 28, 1993. An...
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5 Cal.4th 266 (1993) 851 P.2d 1321 19 Cal. Rptr.2d 712 CHARLES GOOCH et al., Plaintiffs and Respondents, v. HANK HENDRIX et al., Defendants and Appellants. Docket No. S028315. Supreme Court of California. June 1, 1993. *269 COUNSEL Anthony P. Capozzi for Defendants and Appellants. Perez, Makasian & Williams and Rayma Church for Plaintiffs and Respondents. OPINION LUCAS, C.J. May an election b...
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5 Cal.4th 242 (1993) 851 P.2d 1307 19 Cal. Rptr.2d 698 CYNTHIA D., Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; SAN DIEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest. Docket No. S025807. Supreme Court of California. June 1, 1993. *244 COUNSEL Glenn J. Cox for Petitioner. Thor O. Emblem and Tracy L. Emblem as Amici Curiae on behalf of Petitioner. Llloyd M. Ha...
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*187 Opinion In this case, we conclude that property owners are not entitled to recover under an “all risk” homeowners policy indemnifying them against damage to their property unless there is some manifestation of physical damage to the property during the policy period. Since there was no such manifestation during the policy period in this case (which extended until the sale of...
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Steven Dave Avery pleaded guilty to bank robbery in violation of 18 U.S.C. § 2113(a). He was found to be a career criminal and sentenced to 168 months in prison. He appeals his sentence. We affirm. PROCEEDINGS After Avery had pleaded guilty, the government, in order to show he was a career criminal, produced evidence of three prior convictions of crimes of violence: a May 13, 1976...
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994 F.2d 692 16 Employee Benefits Cas. 2684 Elgen LONG, Robert Bax, Oakley Smith; John Keenan,Plaintiffs-Appellants,v.FLYING TIGER LINE, INC. FIXED PENSION PLAN FOR PILOTS; theFlying Tiger Line, Inc., et al., Defendants-Appellees. No. 91-16761. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 12, 1993.Decided June 1, 1993. Jeffrey Lewis, Sig...
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994 F.2d 690 62 Empl. Prac. Dec. P 42,471, 2 A.D. Cases 881 ESTATE OF Barbara L. REYNOLDS, Plaintiff-Appellee,v.Lynn MARTIN, Secretary of Labor, Defendant-Appellant. No. 91-15237. United States Court of Appeals,Ninth Circuit. June 1, 1993. Before: FERGUSON, REINHARDT, and KOZINSKI, Circuit Judges. 1 Prior Report: 985 F.2d 470. ORDER ...
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Opinion Debbie S. obtained a judgment based on a theory of premises liability against United Mortgage, Inc. She appeals from the trial court’s order granting a motion to vacate the judgment brought by David L. Ray, who was appointed receiver for United Mortgage after the judgment was entered. The trial court based its order on appellant’s failure to serve a statement of damages required by Code...
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*1214 ORDER Defendant Eastman Kodak Company (“Kodak”) brings a motion to disqualify plaintiffs’ counsel, the Coudert Brothers Law Firm (“Coudert”). Upon consideration of the briefs and arguments of the parties, and good cause appearing therefrom, Kodak’s motion to disqualify the Coudert firm is GRANTED. FACTS AND BACKGROUND The Coudert firm has provided legal services to Eastman Chemi...
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994 F.2d 703 61 Fair Empl. Prac. Cas. (BNA) 1505,62 Empl. Prac. Dec. P 42,511William L. NESBIT, Plaintiff-Appellant,v.PEPSICO, INC., Defendant-Appellee.Charles A. SELBY, Plaintiff-Appellant,v.PEPSICO, INC., Defendant-Appellee. Nos. 91-16802, 91-16887. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 12, 1993.Decided June 2, 1993. Ellen Lake, Oakla...
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994 F.2d 706 61 USLW 2767 In re Joseph B. PREJEAN, Debtor.Ursula MADDOX, Appellant,v.Jerome E. ROBERTSON, Appellee. No. 91-16741. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 13, 1993.Decided June 2, 1993. Stanley A. Zlotoff, Bluer & Zlotoff, San Jose, CA, for appellant. Cathleen Cooper Moran, Law Offices of Cathleen Cooper Moran...
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After Fred Kennerley received a discharge under § 727 of the Bankruptcy Code (11 U.S.C. § 727), 1 the bankruptcy court barred further state court proceedings against him. The bankruptcy court determined that the fraud claim at issue in the state court action had been discharged along with Kennerley’s other debts because Larry Allred, the creditor, had failed to file a complaint of no...
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994 F.2d 699 UNITED STATES of America, Plaintiff-Appellee,v.Albert J. KINSEY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Joseph KINSEY, Defendant-Appellant. Nos. 92-10013, 92-10014. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1992.Decided June 2, 1993. Candace A. Fry, Sacramento, CA; Glenn M. Kottcamp, Nevada City,...
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DeMont R.D. Conner, a Hawaii state prisoner serving a thirty-years-to-life sentence, appeals pro se the district court’s grant of the state’s motion for summary judgment, and the district court’s denial of his cross-motion for summary judgment, on his § 1983 suit against a number of prison officials 1 and the State of Hawaii. We reverse, as to certain of the defendants, the district ...
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ORDER Plaintiff Lauren Smedley has filed a motion for summary judgment on her Cal. Labor Code § 1101 claim. Defendant has filed a motion to dismiss plaintiffs emotional distress claims. Upon review of the briefs and arguments of the parties in support of and in opposition to these motions, and good cause appearing therefrom, plaintiffs motion is DENIED; defendants’ motion is DENIED in...
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Opinion Palmco Corporation petitions for a writ of mandate directing the superior court to vacate an order for an accounting of its profits from a business conducted after operations were enjoined but while the injunction was stayed on appeal. It contends the court exceeded its jurisdiction. We conclude the trial court acted within its equitable powers and deny the writ petition. *223 Chul ...
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Opinion Plaintiff Palomar Mobilehome Park Association, owner of two mobilehome parks in the city of San Marcos (City), appeals the denial of its petitions for writ of mandate to compel the City and its Mobile Home Rent Review Commission (Commission) to grant a requested increase in the rents which can be charged for spaces in the Palomar Estates West and Palomar Estates East mobilehome parks. W...
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Opinion Following a trial without a jury, judgment was entered against defendant Clinical Data, Inc. (hereinafter, Clinical), for damages in the amount of $296,510.66. The damages reflected the total cost necessary to remedy various code violations which arose from structural changes made by Clinical’s subtenant on a commercial lease of real property owned by Louis Glasier 1974 Revocable ...
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Opinion Here we hold that the protest provisions of Government Code section 57075, subdivision (a)(3), allowing detachment of a large segment of the Oxnard Harbor District without voter confirmation by the registered voters within the affected territory, do not violate appellants’ constitutional rights either facially or as applied. Oxnard Harbor District (District), Stanley J. Daily...
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This case presents the interesting question of whether a federal tax lien on real property, filed in the proper location but outside the property’s direct chain of title, is valid under 26 U.S.C. § 6323(f)(4) as against a subsequent purchaser for value who took the property with actual knowledge of the tax lien. We affirm the district court and hold that under this particular statutory scheme, th...
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995 F.2d 154 Charles H. KEATING, Jr.; Andrew Ligget; Charles A.Keating, III; Robert Wurzelbacher; Robert J.Hubbard; Robert J. Kielty; JamesGrogan; Judy J. Wischer,Plaintiffs-Appellees,v.NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA.,Defendant-Appellant. No. 90-56265. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 6, 1991.Submission Deferred...
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concurring in part and dissenting in part: This panel previously ruled on West’s claim for compensatory and punitive damages under Montana law. West v. Northwest Airlines, 923 F.2d 657 (9th Cir.1991). In that opinion, we held that West’s claim for punitive damages was preempted by the Airline Deregulation Act (“ADA”), § 1305(a)(1) of the FAA, but that his claim for compensatory damages was not. 92...
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ORDER This bankruptcy appeal presents the question whether debtors who have filed a petition under Chapter 7 of the Bankruptcy Code are entitled to the homestead exemption provided under CCP § 704.710 et seq. The Bankruptcy Court concluded that the debtors are so entitled. This court reverses. The Bankruptcy Court misinterpreted the plain meaning of the homestead exemption statute and misappl...
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Roger Alan Lee appeals his sentence under the Sentencing Guidelines of 20 months’ imprisonment upon his conviction by guilty plea of counterfeiting obligations of the United States, in violation of 18 U.S.C. § 471. Lee argues that the district court erred in counting a sentence he received for an un-counseled misdemeanor battery conviction in determining Lee’s criminal history category because ev...
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994 F.2d 1441 61 USLW 2778 STATE OF IDAHO, DEPARTMENT OF FINANCE, Plaintiff-Appellant,v.Robert C. CLARKE, in his capacity as the Comptroller of theCurrency; U.S. Bancorp, an Oregon corporation;First National Bank, aka U.S. Bank ofIdaho, N.A., Defendants-Appellees.STATE OF IDAHO, DEPARTMENT OF FINANCE, Petitioner,v.FEDERAL RESERVE SYSTEM, Respondent.U.S. Bancorp, Intervenor. Nos. 92-35...
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Convicted of murder in the first degree and sentenced to life imprisonment without the possibility of parole, Warren Robert Standen seeks a writ of habeas corpus. At his trial his original plea of guilty, which he had lawfully withdrawn, was introduced by the prosecution, and the jury was instructed by the court that the plea could be considered as evidence against Standen. We hold that this instr...
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994 F.2d 709 37 ERC 1100, 23 Envtl. L. Rep. 20,995,37 Fed. R. Evid. Serv. 1218 FOREST CONSERVATION COUNCIL, an unincorporated Oregonassociation; Umpqua Watersheds; John Talberth,an individual and citizen of the stateof Oregon, Plaintiffs-Appellants,v.Robert J. DEVLIN, in his official capacity as a supervisor;Umpqua National Forest; F. Dale Robertson, in hisofficial capacity, Defendants-...
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Peter Bellucei appeals his conviction upon a jury verdict of making false statements to a financial institution, in violation of 18 U.S.C. § 1014. Bellucei claims there was insufficient evidence that he knowingly made false statements to a bank because he personally made no statements to a bank, and he did not knowingly cause false statements to be made *159 to a bank. He also argues that his S...
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994 F.2d 1426 61 USLW 2774, 125 Lab.Cas. P 10,751,16 Employee Benefits Cas. 2505,Pens. Plan Guide P 23880L INTERNATIONAL UNION OF OPERATING ENGINEERS-EMPLOYERSCONSTRUCTION INDUSTRY PENSION, WELFARE ANDTRAINING TRUST FUNDS, Plaintiff-Appellant,v.Richard D. KARR, d/b/a/ Alaska Unlimited Company, Defendant-Appellee. No. 91-35846. United States Court of Appeals,Ninth Circuit. Argu...
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Opinion WALLIN, J.—Golden West Baseball Company (GWBC), which owns the California Angels baseball team, sued the City of Anaheim (Anaheim) when Anaheim issued a conditional use permit for Anaheim Stadium Associates (ASA) to construct an office complex on part of the parking lot of Anaheim Stadium. GWBC claimed the proposed development violated the terms of its *19 “lease” ...
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Debtor Gilbert G. Beezley appeals the decision of the Ninth Circuit BAP, affirming the bankruptcy court’s denial of his motion to reopen his bankruptcy case under 11 U.S.C. § 350(b). We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we affirm. Beezley argues that the bankruptcy court abused its discretion by failing to grant his motion to reopen his case. See In re Herzig, 96 B.R. 264, 266 ...
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Opinion We hold that an ex parte, lawful, and extant order appointing a temporary conservator of the estate of the conservatee constitutes an adjudication that the conservatee lacks the capacity to give away his or her real property. Michael O’Brien appeals from the judgment entered following a court trial. The trial court found that a gift deed from octogenarian Nadine Gamelin, O’Br...
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Opinion Kenneth Kovacevich appeals from a judgment entered in favor of defendants McKinney & Wainwright et al. (respondents) following a July 15, 1991, order granting respondents’ motion for nonsuit. In a bifurcated trial, the court determined the provisions of Code of Civil Procedure 1 section 340.6 barred Kovacevich’s March 4, 1986, action for damages for legal mal...
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Opinion Respondent, David Dean Richards, was convicted of two counts of first degree burglary, six counts of forcible rape, two counts of attempted forcible sodomy, and two counts of forcible oral copulation. On August 31, 1989, the Los Angeles Superior Court sentenced respondent to a total term of 61 years and 4 months imprisonment. Respondent was given 590 days credit for time actually ...
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Opinion Diesel Electric Sales and Service, Inc. (Diesel) appeals a nonsuit judgment in favor of Marco Marine San Diego, Inc. (Marco or, alternatively, Marco San Diego) which dismissed Diesel’s action against Marco alleging secret, unearned discounts in violation of Business and Professions Code 1 section 17045. After Diesel completed presenting its evidence at trial, the court ...
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508 U.S. 402 (1993) GOOD SAMARITAN HOSPITAL et al. v. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES No. 91-2079. United States Supreme Court. Argued March 22, 1993. Decided June 7, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *403 *404 White, J.,delivered the opinion of the Court, in which Rehnquist, C. J.,and Blackmun, O'Connor, Kennedy, and Thomas, JJ.,joined....
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C. A. 6th Cir. Certiorari granted. Justice Blackmun took no part in the consideration or decision of this petition....
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OPINION On Remand from the Supreme Court of the United States. Before: PREGERSON, BEEZER and KOZINSKI, Circuit Judges. This case was remanded to us for further consideration in light of Doggett v. United States, — U.S. -, 112 S.Ct. 2686, 120 L.Ed.2d 620 (1992). In our earlier disposition, we held there was no violation of defendant’s Sixth Amendment right to a speedy trial and affirmed the distric...
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ORDER The memorandum disposition filed June 30, 1992, is withdrawn and the attached opinion, authored by Judge Hall, is filed in its stead. Before: ALARCON, HALL and KLEINFELD, Circuit Judges. Appellant Edward Smith, a Nevada state prisoner, filed an action under 42 U.S.C. § 1983 alleging violations of his constitutional rights resulting from unreasonable restrictions on visitation, denial ...
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Opinion We determine whether the trial court erred in denying defendant Steven Delgado’s motion for a new trial based on a witness’s posttrial declaration, and whether the trial court engaged in a prejudicial ex parte communication with the jury. The Court of Appeal found error on both of these bases, and reversed defendant’s conviction for second degree murder and misdemeanor child abuse. We disa...
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Opinion This is one of several cases we have taken to resolve issues involving juvenile dependency proceedings pursuant to Welfare and Institutions Code section 300 et seq.1 The issue we address in this case is whether the statutory framework gives the juvenile court discretion to consider returning the minors to the parent at the section 366.26 selection and implementation hearing, and, if not, ...
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Opinion Introduction Petitioner Anita L. Kahn appeals from a judgment denying her petition for a writ of mandate by which she sought to compel respondent Department of Motor Vehicles (DMV) to return her personalized license plates. Procedural and Factual Background Petitioner is a certified court reporter employed by the Culver City Municipal Court. In approximately 1972, when petitioner ...
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Opinion On August 23, 1991, an information was filed in Kern County Superior Court charging appellant Samuel Lee Shoemake with two counts of forcible sodomy in violation of Penal Code section 286, subdivision (c), one count of forcible oral copulation in violation of Penal Code section 288a, subdivision (c), and one count of rape by means of force in violation of Penal Code section 261, s...
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Opinion Does the Vehicle Code preempt an ordinance enacted by a charter city to ban vending from vehicles parked on public streets in residential areas? Yes. I Per the allegations of the complaint, plaintiffs are street vendors licensed by the City of Anaheim. All have sold produce from vehicles on streets in residential areas for at least seven years, some many years lo...
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Opinion In this appeal from a consent judgment entered in favor of respondent in a medical malpractice action, appellant contends that *83 the trial court erred in granting respondent’s motion in limine to exclude from the trial any expert testimony of appellant’s only orthopedic expert. We affirm. Facts Plaintiff and appellant Jerry Ann Richaud filed a m...
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Opinion Introduction This appeal raises the issue of the length of the period in which the State Board of Equalization (Board) may bring an action to collect delinquent taxes pursuant to Revenue and Taxation Code section 6711. Plaintiff and appellant the People of the State of California (the People), acting by and through the Board, appeal from the judgment in favor of *359 defendants an...
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Opinion This case requires us to interpret the California Public Records Act. (Gov. Code, § 6250 et seq. [hereafter CPRA].) 1 The particular provision at issue (§ 6254, subd. (f)) exempts law enforcement investigatory files from the act’s general requirement of public disclosure. The underlying dispute arose out of a newspaper’s request for access to a county sheriff’s records ...
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Opinion The chief question presented by this appeal is whether a trial court may dismiss a dependency proceeding after ordering a long-term placement as the permanent plan. In an unpublished portion of the opinion, we address the additional contention that the trial court failed to comply with the Indian Child Welfare Act despite indications in social workers’ reports and in testimony that the act...
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Opinion Defendant was convicted of first degree burglary, and allegations that he had suffered prior serious felony convictions (Pen. Code, § 667) and a prison prior (Pen. Code, § 667.5, subd. (b)) were found true. Defendant was sentenced to 30 years in state prison. On appeal he makes numerous assertions of error including claims that (1) the trial court committed prejudicial error when it fai...
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Opinion This appeal concerns the dismissal of a complaint filed in the Superior Court of Contra Costa County on November 28, 1990, by twenty-one individuals and the fiduciaries of three estates (hereafter appellants) against six defendants—East Bay Municipal Utility District (hereafter EBMUD), the City of Concord (hereafter City), State of California (hereafter State), Contra Costa County Water D...
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Westvaco Corporation brought suit in the United States District court for the Eastern District of Virginia against International Paper Company (IPC) for a declaratory judgment that IPC’s Reissue Patent No. 33,376 is invalid and unenforceable, that Westvaco’s product does not infringe the patent, and that Westvaco is entitled to intervening rights. IPC denied Westvaco’s claims and counterclaimed...
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OPINION GRANTING SUBSTANTIVE CONSOLIDATION OF ESTATES OF FIVE DEBTORS I. FACTS The present motion to substantively consolidate involves the following undisputed facts: A. All Five DIPs Have Always Operated as a Consolidated Entity There are five Chapter 11 debtors involved in this motion, all of them corporations. All five are debtors in possession. These are Standa...
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994 F.2d 792 38 Cont.Cas.Fed. (CCH) P 76,520 INFORMATION SYSTEMS AND NETWORKS CORPORATION, Plaintiff-Appellant,v.The UNITED STATES, Defendant-Appellee. No. 92-5153. United States Court of Appeals,Federal Circuit. May 25, 1993. Michael W. Clancy, Atty., Law Office of Pettit & Martin, Washington, DC, argued for plaintiff-appellant. With him on the brief was David...
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Dennis Chinnock is a veteran who applied for disability benefits for disabilities resulting from a brain tumor that he contends was caused by radiation exposure while he was serving in the United States Air Force. The Air Force and, subsequently, the Board of Veterans’ Appeals denied his application for benefits. • The radiation exposure which Chinnock asserts caused the tumor occurred while he w...
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Plaintiffs (“the Christensens”) contend that defendants, by adopting a zoning agreement, (1) exercised a taking of their property in violation of the Fifth and Fourteenth Amendments; (2) violated the Due Process and Equal Protection Clauses; and (3) violated the Commerce Clause. Plaintiffs appeal pro se the district court’s grant of defendants’ motion for summary judgment. We affirm. I. FA...
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993 F.2d 1453 Michael ROMBERG; Debra Romberg, Plaintiffs/Appellees-Cross-Appellants,v.Robert NICHOLS; Dennis Lazzari; Hugh Lloyd; JohnnyJurtado; Thomas Laing; Diane Hannon; R.D.Campbell, Defendants/Appellants-Cross-Appellees. Nos. 90-56125, 91-55012. United States Court of Appeals,Ninth Circuit. June 8, 1993. Stephen Yagman, Yagman & Yagman, Venice, CA, for pl...
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OVERVIEW AND JURISDICTION Wendell Woods appeals the district court’s order revoking his conditional release pursuant to 18 U.S.C. § 4246(f). The district court had jurisdiction under 18 U.S.C. §§ 3231, 4246(f). This court has jurisdiction under 28 U.S.C. § 1291. We reverse. BACKGROUND On November 5, 1979, Mr. Woods was sentenced to twelve years imprisonment for bank robbery. Whil...
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994 F.2d 1462 72 A.F.T.R.2d 93-5175, 61 USLW 2783,Bankr. L. Rep. P 75,303 In re Alfred L. CISNEROS; In re Colleen Collins Cisneros, Debtors.Alfred L. CISNEROS; Colleen Collins Cisneros, Appellants,v.UNITED STATES of America; Department of Treasury; InternalRevenue Service, Appellees. No. 91-55883. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 3, 1...
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995 F.2d 1469 LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiff,andRoger Gibson, Plaintiff-Appellant,v.Daryl F. GATES, Chief of Police, et al., Defendant-Appellee.LOS ANGELES POLICE PROTECTIVE LEAGUE, Plaintiffs-Appellees,v.Daryl F. GATES, Chief of Police, et al.; Marvin Iannone;Donald Vincent; Charles Dinse; Robert Kellar;Kenneth Colby; Harry Nearing; City ofLos Angeles, Defendants-Appella...
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Opinion Appellant Bravo Vending (Bravo) appeals from a judgment against it on its action for declaratory relief and a permanent injunction and its petition for a writ of mandate, both of which sought to prevent the enforcement of an ordinance adopted by the City of Rancho Mirage (City). We affirm. *391 Factual and Procedural Background On December 6, 1990, the City adop...
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OPINION Under a marital settlement agreement, the debtor, Thelma Spirtos, assumed one-half of a judgment debt owed by her ex-husband, Dr. Basil Spirtos (“Dr. Spirtos”) to the appellee, Irene Moreno. The debtor objected to Moreno’s proof of claim, contending that Moreno’s claim against her should be precluded or reduced by the damages she suffered because of Dr. Spirtos’ breach of the settlement ag...
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*369 Opinion This is a class action brought on behalf of the policyholders of the defendant and respondent State Farm Mutual Automobile Insurance Company (State Farm) by the plaintiff and appellant Benjamin G. Barnes (Barnes). By this action, in its final form prior to appeal, Barnes sought to preclude State Farm from spending premium revenues on political activities opposed by d...
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995 F.2d 911 143 L.R.R.M. (BNA) 2642, 125 Lab.Cas. P 57,399,1 Wage & Hour Cas.2d (BNA) 745 BABLER BROS., INC., an Oregon corporation; Oregon-ColumbiaChapter of the Associated General Contractors ofAmerica, Inc., an Oregon non-profitcorporation, Plaintiffs-Appellants,v.Mary Wendy ROBERTS, in her official capacity as Commissionerof the Bureau of Labor and Industries; Donald E.Forbes, ...
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994 F.2d 714 UNITED STATES of America, Plaintiff-Appellee,v.Demetrius Jerome HAYES, Defendant-Appellant. No. 91-30432. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 3, 1993.Decided June 9, 1993. Carol Koller, Asst. Federal Public Defender, Seattle, WA, for defendant-appellant. Douglas B. Whalley, Asst. U.S. Atty., Seattle, WA, for plaintiff...
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Robert Shackley appeals the sentence imposed following his conviction of violating 26 U.S.C. § 5861(d) for possession of an unregistered, sawed-off shotgun. The sentence was enhanced by the district court’s consideration of related conduct. We affirm. FACTS In December 1991, Shackley was an employee of Volcano House, a hotel in Hawaii Volcanoes National Park. Early in the morning of December ...
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We consider, among other things, whether a public defender has standing to challenge the constitutionality of a state statutory scheme that makes him an at-will employee on the ground that the scheme interferes with the Sixth Amendment rights of his clients. I Portman was employed as the Chief Public ■Defender of Santa Clara County from 1968 to 1986. Until the last year of his employm...
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995 F.2d 916 72 A.F.T.R.2d 93-5139 CHURCH OF SCIENTOLOGY INTERNATIONAL, Plaintiff-Appellee,v.UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant.CHURCH OF SCIENTOLOGY INTL., Plaintiff-Appellee,v.UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant.CHURCH OF SCIENTOLOGY, Plaintiff-Appellee,v.UNITED STATES INTERNAL REVENUE SERVICE, Defendant-Appellant. Nos. 92-55817, 92-55...
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16 Cal.App.4th 421 (1993) 20 Cal. Rptr.2d 97 NOLA M., Plaintiff and Respondent, v. UNIVERSITY OF SOUTHERN CALIFORNIA, Defendant and Appellant. Docket No. B059833. Court of Appeals of California, Second District, Division One. June 9, 1993. *423 COUNSEL Christian E. Markey, Jr., Mireille F. Gotsis, J. Andrew Coombs, Horvitz & Levy, Frederic D. Cohen and Douglas G. Benedon for Defendant and App...
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Opinion Introduction Concluding that the Legislature violated no constitutional or statutory provision in enacting section 97 and related sections of the California Revenue and Taxation Code, we deny a writ of mandamus challenging the implementation of that statute. On April 11, 1991, in the California Supreme Court, petitioners filed a petition for writ of mandate and requested...
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Opinion plaintiffs appeal after the trial court denied their motion for class certification. 1 Facts This case basically involves the consolidation of six real estate limited partnerships (which the parties refer to as “the Centennial Partnerships”) and other private companies into a single corporate entity, defendant The Centennial Group, Inc., a Delaware corporation (w...
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Opinion Respondent Boyd Wayne Austin was employed by respondent Kirschenman Enterprises for approximately 25 years until March 17, 1987, when he became disabled. Austin suffered from major recurrent depression. Petitioner Western Growers Insurance Company (Western) and respondent Industrial Indemnity (Industrial) were the workers’ compensation carriers for Kirschenman Enterprises during t...
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Dow appeals the denial of a writ of habeas corpus, 779 F.Supp. 139. The district court found that it lacked jurisdiction to entertain this petition, holding that mandatory class attendance does not amount to a severe restraint on an individual’s liberty and that appellant is therefore not “in custody” within the meaning of 28 U.S.C. § 2254(a). We reverse. Appellant was convicted by a Hawaii sta...
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Opinion The People appeal from an order of dismissal in favor of defendants Antonio Pastor Cruz and Victor Pastor Cruz. The trial court dismissed the case because the police negligently lost a knife allegedly used in the charged crime of assault with a deadly weapon, to wit, a knife. We reverse. Facts The facts appear to be generally undisputed. A quarrel arose between defendants and the al...
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Jimmy John Gutierrez appeals his conviction, following a jury trial, for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). Gutierrez argues that the evidence was insufficient to support the verdict, and that the district court erred in admitting evidence. We affirm the conviction. I. On December 22, 1990, CHP Sgt. Rade-macher and his partner, Officer Maddox, saw a silv...
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998 F.2d 648 UNITED STATES of America, Plaintiff-Appellee,v.Raymond James HOSLETT, Defendant-Appellant. Nos. 91-50868, 91-50869. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 5, 1992.Decided June 10, 1993. Gerald V. Scotti, Beverly Hills, CA, for defendant-appellant. Robert Brosio, Barbara M. Scheper, Asst. U.S. Attys., Los Angeles, CA, fo...
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In his direct appeal in United States v. Garcia, No. 90-50316, Joaquin Garcia appeals his convictions after a bench trial on five counts of possession with intent to distribute cocaine and heroin, 21 U.S.C. § 841(a)(1); two counts of weapons possession, 26 U.S.C. §§ 5861(i) and 5871 and 18 U.S.C. §§ 922(o )(1) and 924(d); and one count of using a machine gun during and in relation to...
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Ruben Taren-Palma appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(A)(ii). Ismael Calderon-Perez appeals his conviction and sentence for conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(l)(A)(ii), and for unlawfully carryin...
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Eastman Kodak Company (Kodak) appeals from the decision of the Trademark Trial and Appeal Board (Board) of the Patent and Trademark Office (PTO) in an intent-to-use application proceeding under the Lanham Act, as amended by the Trademark Law Revision Act of 1988,15 U.S.C. §§ 1051-1127 (1992), 1 Eastman Kodak Co. v. Bell & Howell Document Management Prods. Co., Nos. 86,083, 86,...
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Opinion This appeal involves matters of insurance coverage for numerous asbestos-in-building claims asserted against appellant Fibreboard *497 Corporation (Fibreboard). We are asked to decide three issues: (1) whether causes of action based on collective liability, in which a given defendant need not have supplied the harmful product, come within the policies’ “products hazar...
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Opinion Upon his plea of guilty to attempted murder, assault with a deadly weapon, and several enhancements—infliction of great bodily injury, a prior serious felony conviction and 2 prior prison terms—Delgado was sentenced to a total term of 10 years, offset by 342 days of credits. He complains that he should have received no more than seven years which was the indicated sentence originally of...
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Opinion This case concerns the application of Health and Safety Code section 11488.4, subdivision (a), which provides in pertinent part that a complaint for forfeiture of the alleged proceeds of drug trafficking must be filed “within one year of the seizure of the property which is subject to forfeiture . . . .” 1 The trial court concluded that a forfeiture complaint was barred by this statut...
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Opinion Gustavo Rojas Granados appeals from the judgment entered upon his plea of no contest to possession of money or instruments in excess of $100,000 involved in the unlawful sale or purchase of cocaine (Health & Saf. Code, § 11370.6, subd. (a)), following the denial of his motion to declare the statute under which he was charged unconstitutional. He contends: “Section 11370.6 of the Health an...
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MEMORANDUM DECISION & ORDER The Defendants’ Motion to Dismiss came on for hearing before this Court on Monday, October 19, 1992, at 10:00 a.m. Having considered the moving and opposition papers and' arguments of counsel, the Court rules as follows: I. Background Plaintiff Peter Morton owns the rights to the Hard Rock Cafe trademark in the western half of the United State...
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Opinion In this proceeding, petitioners 1 seek a writ of mandate to compel the trial court to consider and rule on the merits of their motion, *526 made pursuant to Code of Civil Procedure section 425.13, subdivision (a),* 2 for leave to amend their complaints to allege claims for punitive damages against the Medical Center of North Hollywood, Valentine ...
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Opinion Appellant was convicted following a jury trial of misdemeanor indecent exposure in violation of Penal Code section 314, subdivision l.1 On appeal, he challenges that part of this sentence which requires him to register as a sex offender pursuant to section 290. The evidence presented at trial shows that Renee Lepre (hereafter Renee) was working as a street artist in front of the Shreve’s B...
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Opinion Introduction United Pacific Insurance (UPI) appeals from a judgment of the Contra Costa County Superior Court, ordering UPI as surety to pay attorney fees incurred by respondent subcontractor Liton General Engineering Contractor, Inc. (Liton), in its action against UPI on a public works payment bond, where the bulk of fees were incurred in arbitration of Liton’s contractual dispute with...
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508 U.S. 581 (1993) LOCAL 144 NURSING HOME PENSION FUND ET AL. v. DEMISAY et al. No. 91-610. United States Supreme Court. Argued January 11, 1993. Decided June 14, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *582 Scalia, J.,delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, and Thomas, JJ., joined. Stevens, J., filed an ...
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508 U.S. 656 (1993) NORTHEASTERN FLORIDA CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS OF AMERICA v. CITY OF JACKSONVILLE, FLORIDA, et al. No. 91-1721. United States Supreme Court. Argued February 22, 1993. Decided June 14, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. *657 Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Ste...
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C. A. 10th Cir. Certiorari granted limited to Question 3 presented by the petition....
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C.W. and Anna Lyons, owners of real property as tenants in common with Chapter 7 debtor Billy Lyons, appeal the district court’s order affirming the bankruptcy court’s decision that the bankruptcy trustee is not required to initiate an adversary proceeding to obtain authority to sell the real property free of the non-debtor cp-owners’ interests. We reverse and remand. I The trustee moved to s...
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508 U.S. 602 (1993) CONCRETE PIPE & PRODUCTS OF CALIFORNIA, INC. v. CONSTRUCTION LABORERS PENSION TRUST FOR SOUTHERN CALIFORNIA No. 91-904. United States Supreme Court. Argued December 1, 1992. Decided June 14, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *603 *604 Souter, J., delivered the opinion of the Court, which was unanimous except insofar as O'Connor, J...
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The question in this case is whether, under § 19(e) of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq., and the supporting regulation, service on the parties must be effected before a compensation order is deemed “filed.” We hold that it must, and remand Nealon’s case to the Benefits Review Board with instructions to remand to the Administrative Law Judge ...
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In its petition for rehearing, the government contends for the first time in this appeal that Miranda warnings were not given, and that hence, pursuant to Fletcher v. Weir, *883 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982), the evidence regarding post-arrest silence was properly admitted and did not constitute error under Doyle v. Ohio, 426 U.S. ...
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Richard Louis Durham appeals his sentence for possession with intent to distribute methamphetamine, 21 U.S.C. § 841(a)(1), and possession of a firearm in relation to a drug trafficking offense, 18 U.S.C. § 924(c)(1). In United States v. Durham, 941 F.2d 858 (1991), we vacated his prior sentence and remanded for resentencing because the court failed to articulate its reasons for departure. Thi...
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The California Department of Health Services (“California DHS”) appeals the decision of the Bankruptcy Appellate Panel that its claim against Robert Burns Jensen and Rosemary Tooker Jensen for cleanup of hazardous waste at the Jensen’s former business property was discharged in the couple’s bankruptcy. We have jurisdiction over California DHS’s timely appeal pursuant to 28 U.S.C. § 158(d) (1988...
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Roy L. Barton appeals from the judgment of conviction and the sentence imposed following the entry of his conditional guilty plea to manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). Law enforcement officers discovered a marijuana manufacturing operation in Barton’s home during the execution of a search warrant. Barton moved to suppress the evidence seized from his home on the gro...
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Opinion William Lipari appeals from a judgment dismissing his petition for writ of mandate, in which he sought an order setting aside the suspension of his driver’s license by respondent Department of Motor Vehicles (DMV). He contends that the trial court erred in finding that, under Vehicle Code section 13559, 1 it lacked jurisdiction to hear his petition. We agree. Therefore,...
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Opinion Petitioner, plaintiff in a personal injury action, seeks a writ of mandate to vacate a superior court order requiring petitioner to produce a videotaped conversation between her attorney and herself. Because substantial evidence supports the trial court’s finding that petitioner *715 waived her attorney-client privilege (Evid. Code, 1 § 912, subd. (a)) we d...
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Opinion I. Introduction Plaintiff, A Local and Regional Monitor (ALARM) appeals from the denial of its petition for writ of mandate to compel the City of Los Angeles to set aside and rescind the certification of an environmental impact report (EIR) which was adopted for a 40-story commercial office building project located on the northwest corner of Sixth and Boylston Streets which w...
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Opinion Here, we hold that a governmental entity and its agents may not offer a grant of public funds on condition that the recipient waive the constitutional right to privacy. We thus agree with the trial court which found that defendants, City of Santa Maria (City), its mayor, and city council, could not impose a grant restriction that conditioned the receipt of public funds upon the recipien...
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*544 Opinion The trial court awarded attorney fees to defendant Kenneth K. Wang (Wang) following his successful defense of the fraud complaint filed by Super 7 Motel Associates (appellant). Appellant claims the attorney fee award was improper. We agree. 1. Facts Appellant sued numerous parties in connection with its purchase of certain property. Appellant’s comp...
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Opinion Plaintiff-appellant Warren Cohen, a veterinarian, appeals from a summary judgment 1 in favor of defendant-respondent Suzanne McIntyre and her parents in plaintiffs action for negligence brought as a result of injuries he suffered while treating defendant’s dog Lobo. This case is on remand from the California Supreme Court for reconsideration in light of Knight v. Jewett (1992) 3 C...
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Opinion After being convicted of possessing methamphetamine for sale (Health & Saf. Code, § 11378), the defendant appeals. We affirm. Factual and Procedural Background Acting on a tip from a confidential informant, Officer Hatfield of the Cathedral City police applied for and obtained a warrant for the search of the defendant’s apartment. When the warrant was executed on May 22,...
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Opinion Petitioners contend that after trials on parking infractions, the court erred because it refused to settle statements on appeal with relevant pleadings and factual evidence. As we conclude that the court should have included the issue of the right to a speedy trial, the petition for a writ of mandate is granted. Factual and Procedural Synopsis Petitioners are defendants in two parki...
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Opinion Introduction Plaintiffs Rod and Helene Violette appeal from a judgment of the San Mateo County Superior Court dismissing their action against defendants Richard L. Shoup and ManEquity, Inc., following the court’s grant of summary judgment in favor of defendants. Plaintiffs contend the court erred in granting summary judgment. We shall affirm. Statement of Facts ...
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*698 Opinion The dispositive issue on this appeal is whether the trial court denied plaintiff-appellant his right to a jury trial. We conclude it did and reverse the judgment. Procedural Background We need not again fully recount the procedural history of this matter. On February 20, 1991, in an unpublished opinion (Cohill v. Nationwide Auto Service Inc., B044848) we provided that his...
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This case has one issue, intervention as a matter of right. The Sierra Club sued the EPA under the Clean Water Act for a declaratory judgment and an injunction. The relief sought' would require the EPA to change the terms of permits issued to the City of Phoenix for two of its wastewater treatment plants. The district court denied the City’s motion to intervene. We reverse, and hold that the Ci...
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Opinion Gertrude C. Daley (Gertrude) appeals from an order appointing a receiver to bring property she owns into compliance with the San Francisco Municipal Code. 1 She contends the trial court lacked the authority to appoint a receiver, abused its discretion by appointing a receiver, and denied her a fair hearing prior to the appointment. We affirm. *737 I. Factu...
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We consider whether a creditor whose legal rights would be changed under a Chapter 11 plan is “impaired” under the plan as that term is defined by the Bankruptcy Code. I L & J Anaheim Associates (“L & J”), a limited partnership, owned a single piece of real property, a hotel. Kawasaki Leasing International, Inc. (“Kawasaki”) held a security interest in the hotel as collateral to secur...
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Grant S. Lyddon contests the district court’s award of $54,728.05 in attorney’s fees, double costs, and related damages to Geothermal Properties, Inc. (GPI). This award was made pursuant to this court’s order imposing Fed.R.App.Pro. 38 sanctions. The district court had jurisdiction under 28 U.S.C. § 1332(a)(1). This court has jurisdiction under 28 U.S.C. § 1291. For the reasons stated below we ...
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Opinion The court, sitting without a jury, found defendant1 guilty of manufacturing methamphetamine (count I), conspiracy to manufacture methamphetamine (count II), possession of methamphetamine for purposes of sale (count III) and conspiracy to possess methamphetamine for sale (count IV); and found true special allegations, as to counts I and II, that the substance containing methamphetamine exce...
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Opinion Background Plaintiff Leslie Galardi, an accomplished equestrian, sustained personal injuries when she fell from a horse while training for an upcoming horse show. On the theories of general negligence and premises liability, plaintiff sued two defendants, the owner of the stables (Judy Martin doing business as Seahorse Riding Club) and the instructor (Lisa Jacquin). Specifically, the ...
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Opinion Petitioner, the girlfriend of decedent William E. Kane, seeks a peremptory writ of mandate/prohibition to vacate a January 4, 1993, order directing the personal representative of decedent’s estate to destroy all of the decedent’s sperm in the custody and control of California Cryobank, Inc. The real parties in interest are the administrator of the decedent’s estate, (Robert L. Gre...
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Opinion I. Defendant Steven Armendariz appeals from the sentence he received after pleading guilty to attempted robbery (Pen. Code, §§ 664/211), attempted murder (Pen. Code, §§ 664/187), and robbery (Pen. Code, § 211). He also admitted three firearm-use enhancements (Pen. Code, § 12022.5) and infliction of great bodily injury on the attempted murder charge (Pen. Code, § 12022.7). The...
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Opinion In this case, a worker sued the manufacturer of a hand-held power grinder which severely injured his eye. The trial court granted summary judgment on grounds the grinder was “misused” by attaching the wrong disc to the machine. We reverse because the defendant failed to sustain its burden of proving the “misuse” caused the injury or of demonstrating the manufacturer provided an adequate...
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Opinion Colleen Manthey filed a complaint for personal injuries against San Luis Rey Downs Enterprises, Inc. (San Luis Rey) and others. Manthey also received workers’ compensation from Fairmont Insurance Company (Fairmont) since Manthey was within the course and scope of her employment with Sam Austin Birch (Birch) at the time of her injury. Prior to trial, *785 Manthey offer...
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Opinion Defendant, Jeramian Preston Parnell, was convicted by jury of felony murder and attempted robbery and sentenced to life imprisonment without possibility of parole. His appeal challenges his convictions *866 and the restitution order made part of his sentence. We affirm the convictions and remand the matter to the trial court for a redetermination as to restitution. Facts and Proceed...
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with whom Justice Stevens joins, dissenting. I join Part I of Justice Blackmun’s dissent. In my view, the Court should vacate and remand this case for consideration of the various threshold problems, statutory and regulatory, that may moot the constitutional question urged upon us by the parties. “It is a fundamental rule of judicial restraint ... that this Court will not reach constitutional ques...
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delivered the opinion of the Court. This petition joins two separate suits, each challenging a different regulation issued by the Immigration and Naturalization Service (INS) in administering the alien legalization program created by Title II of the Immigration Reform and Control Act of 1986. In each instance, a District Court struck down the regulation challenged and issued a remedial order direc...
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Arctic Vessel Management, Inc. appeals from the district court’s judgment in favor of Stephen Havens, in Havens’s action for personal injuries under the Jones Act, 46 U.S.CApp. § 688 (1988), and under the doctrine of seaworthiness. We have jurisdiction pursuant to 28 U.S.C. § 1291 (1988). We affirm. I. Havens began working aboard the F/T Polar Mist, a ship owned by Arctic, on September 19, 19...
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We confront the metaphysical question, what is a search warrant? In more prosaic terms, we must decide whether a search warrant may be comprised of pieces of paper that are not physically attached to each other. I On May 27, 1990, Sutter County Municipal State Court Judge Robert Damron issued a search warrant for the residence of Dane Treiber (“Treiber”). The warrant was executed by C...
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delivered the opinion of the Court. In Davis v. Michigan Dept. of Treasury, 489 U. S. 803 (1989), we held that a State violates the constitutional doctrine of intergovernmental tax immunity when it taxes retirement benefits paid by the Federal Government but exempts from taxation all retirement benefits paid by the State or its political subdivisions. Relying on the retroactivity analysis of Chevr...
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Opinion Security Pacific Business Credit, Inc., now known as BankAmerica Business Credit, Inc., but which for the sake of continuity will be referred to herein as “Security,” appeals an order imposing a $1,500 discovery sanction. The court imposed the sanction after Security opposed a motion to compel discovery without substantial justification for doing so. (Code Civ. Proc., § 2023, subd...
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*319 Opinion Jack Dale Sovereign appeals his conviction by guilty plea to attempted murder (Pen. Code, §§664, 187), 1 with great bodily injury (§ 1203.075) and by use of a deadly weapon (§ 12022, subd. (b)). He contends his plea is constitutionally defective because he did not expressly waive his right to a jury trial. We affirm. Facts and Procedural History ...
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*922 Opinion Appellant Heide V. Betz appeals the denial of her petition to vacate an arbitration award in favor of respondent Charles J. Pankow. She contends the award by two male members of a three-person arbitration panel was improperly influenced by gender bias against her and in favor of respondent. We conclude the record supports the trial court’s conclusion that appellant h...
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C. A. 7th Cir. Certiorari granted....
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Opinion Appellant Heide V. Betz appeals an order denying her motion to vacate a judgment confirming an arbitration award in favor of respondent Charles J. Pankow, and imposing sanctions against her attorney. She contends the court erred in determining it was without jurisdiction to decide the motion on its merits while the judgment was pending on appeal. Facts and Procedural History An arbitratio...
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delivered the opinion of the Court. The President has directed the Coast Guard to intercept vessels illegally transporting passengers from Haiti to the United States and to return those passengers to Haiti without first determining whether they may qualify as refugees. The question presented in this case is whether such forced repatriation, “authorized to be undertaken only beyond the territorial ...
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John Brown appeals the district court’s denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254, challenging his state conviction for driving under the influence of intoxicating liquor in violation of Nev. Rev.Stat. § 484.379. Although Brown’s notice of appeal arrived at district court a day late, we deem it timely. See Sudduth v. Arizona Attorney General, 921 F.2d 206 (9th Cir.199...
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The United States appeals the district court’s ruling that, in an action brought by the United States for a deficiency judgment on a promissory note that was secured by a deed of trust, the United States is subject to a six-year limitations period. In addition the United States challenges the district court’s determination that, because the government’s cause of action accrued on the date the d...
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16 Cal.App.4th 887 (1993) 20 Cal. Rptr.2d 418 RONALD S., a Minor, etc., Plaintiff and Respondent, v. COUNTY OF SAN DIEGO, Defendant and Appellant. Docket No. D012893. Court of Appeals of California, Fourth District, Division One. June 17, 1993. *890 COUNSEL Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, David Froman and Deborah Peterson-Lee, Deputy County Couns...
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995 F.2d 1566 27 U.S.P.Q.2d 1136 INTEL CORPORATION, Plaintiff-Appellee,v.ULSI SYSTEM TECHNOLOGY, INC., Defendant-Appellant. No. 92-1116. United States Court of Appeals,Federal Circuit. June 10, 1993.Order Denying Rehearing and Rehearing In Banc Aug. 26, 1993. John W. Keker, Keker & Brockett, San Francisco, CA, argued for plaintiff-appellee. With him on the brie...
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ORDER The opinion filed February 18, 1993, 986 F.2d 1267, is withdrawn. This case involves an alleged scheme in which Gaudin purchased houses, then entered into sham sales transactions at inflated appraised prices, obtained loans on the basis of the inflated prices, reacquired the property, rented it, failed to make the mortgage payments, and applied the rents to his own use. He was convicted...
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Richard Blake Draper appeals sentences imposed following his guilty pleas to an indictment and an information, each charging a separate count of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Draper contends the district court erred in adjusting his offense level upward for obstruction of justice pursuant to U.S.S.G. § 3C1.1. We affirm. I. In July 1991, Draper was charged ...
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997 F.2d 550 Elsie BREWER, individually and as next friend of John GeorgeBrewer, Petitioner-Appellant,v.Samuel LEWIS, Director of the Arizona Department ofCorrections, et al., Respondents-Appellees,John George Brewer, Real Party In Interest. No. 93-99003 United States Court of Appeals, Ninth Circuit. June 22, 1993. 1 Prior Report: 989 F.2d 1021. DISSENT F...
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995 F.2d 947 72 A.F.T.R.2d 93-6533 FIRST FEDERAL SAVINGS BANK OF WASHINGTON, a corporation,Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 91-35690. United States Court of Appeals,Ninth Circuit. Submitted June 8, 1993*.Decided June 22, 1993. Bruce E.H. Johnson, Davis Wright Tremaine, Seattle, Washington, and James K. Hayner, Minnick Hayner, Wa...
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*964 Opinion Armando Chris Quiroga (hereafter appellant) appeals a judgment of conviction after a jury trial for charges of possession of cocaine (Health & Saf. Code, § 11350, subd. (a)) and resisting a peace officer (Pen. Code, § 148). The court placed him on probation for 3 years and ordered him to serve 180 days in county jail with credits of 163 days for time served. The...
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*996 Opinion Plaintiff and appellant 1119 Delaware, a California general partnership (Delaware), appeals an order of dismissal following the sustaining of a demurrer to its original complaint without leave to amend. 1 The demurrer was interposed by defendants and respondents Continental Land Title Company (Continental) and Lawyers Title Insurance Corporation (Lawyers T...
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MEMORANDUM DECISION AND ORDER Defendants’ Motion to Dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), was scheduled for hearing before this Court, Honorable Richard A. Gadbois, Jr., presiding, on October 26, 1992. Peter N. King, the Deputy City Attorney appeared on behalf of Defendants, City of Los Angeles, et. al. Robert Mann appeared on behalf of Plaintiff. After hearing oral argument and after ful...
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This case involves whether a defendant may be held to have knowingly, as opposed to recklessly, created a substantial risk of death or serious bodily injury for purposes of a sentencing enhancement under section 2K1.4 of the Sentencing Guidelines. I In the predawn hours of three separate Mondays in May and June 1990, appellant Lorenz Vilim Karlic and his partner, Rodney Burl Smith, us...
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Opinion Petitioner Flowmaster, Inc. (Flowmaster), is the defendant in plaintiff Donald Von Dohlen’s (hereafter plaintiff) civil action for personal injuries incurred by him while operating a hydraulic power press manufactured by Flowmaster. Plaintiff is Flowmaster’s employee and was injured while performing his duties as a “parts maker.” Flowmaster moved for summary judgment on the ground that pl...
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Opinion The East Bay Municipal Utility District (hereafter appellant or the District) is a municipal utilities district which provides water to customers in Alameda and Contra Costa Counties, including the City of Lafayette (hereafter respondent or the City). The District owns property in the City on which it has operated a filter plant since 1929. The property, consisting of approximatel...
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Opinion Michael Richard Fares was convicted by a jury of grand theft. (Pen. Code, 1 487, subd. 1.) His probation for two prior convictions was revoked and he was sentenced on all three convictions. Fares’s appeal does not challenge the trial or verdict in any respect. His one contention of error relates to the computation of presentence custody credits made by the trial court a...
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16 Cal.App.4th 1034 (1993) 20 Cal. Rptr.2d 453 LAMBERT STEEL COMPANY, INC. et al., Plaintiffs and Appellants, v. HELLER FINANCIAL, INC., Defendant and Respondent. Docket Nos. B065073, B065187. Court of Appeals of California, Second District, Division Two. June 23, 1993. *1037 COUNSEL Gibbs, Giden, Locher & Fleming, Glenn E. Turner III, Leon F. Mead II, Polston, Schwartz, Hamilton & Fenste...
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Opinion The primary issue presented by this case is whether a property owner whose land is condemned for a jail may value his property *1050 based on a highest and best use as a private detention facility. We conclude the answer is no and therefore reverse. Facts The property here is a parcel of about 525 acres of primarily vacant, undeveloped property in the Otay M...
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509 U.S. 312 (1993) HELLER, SECRETARY, KENTUCKY CABINET FOR HUMAN RESOURCES v. DOE, by his mother and NEXT FRIEND, DOE, et al. No. 92-351. United States Supreme Court. Argued March 22, 1993. Decided June 24, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *313 *314 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Scalia, and Thoma...
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High Technology Careers appeals the district court’s summary judgment in favor of the San Jose Mercury News in HTC’s antitrust action alleging that Mercury News violated the Sherman Act, 15 U.S.C. § 2, by refusing to continue to publish HTC’s advertising insert. We have jurisdiction of the timely appeal pursuant to 28 U.S.C. § 1291. We reverse. FACTS The San Jose Mercury News is a...
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Masoner, a California state prisoner, appeals from the district court’s order denying his petition for a writ of habeas corpus. The district court exercised jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm. I On March 4, 1987, Masoner attended a cocktail party where he consumed alcoholic beverages. As he pr...
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996 F.2d 993 UNITED STATES of America, Plaintiff-Appellee,v.Silvestre M. RIVERA, Defendant-Appellant. No. 92-10063. United States Court of Appeals,Ninth Circuit. Submitted Oct. 8, 1992.*Decided June 24, 1993. John R. Hannah, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. W. Allen Stooks, Asst. U.S. Atty., Phoenix, AZ, for plaintiff-appellee. ...
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Opinion I. Introduction Defendant was charged with grand theft (Pen. Code, § 487, subd. I) 1 but convicted of petty theft (§ 488)—ordinarily a misdemeanor offense. 2 However, defendant received a felony sentence pursuant to section 666 because he had prior convictions for theft-related offenses for which he had served prison terms. 3 On appeal, defendant contends he was improperly convi...
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Opinion In this case we answer three questions. Does the California Public Records Act (Gov. Code, § 6250 et seq.) require public disclosure of a letter from the city attorney distributed to members of the city council, expressing the legal opinion of the city attorney regarding a matter pending before the council? 1 Is the transmission of the written legal opinion at issue in ...
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Opinion In this case, we hold that a complete work stoppage on a public work of improvement for 30 days constitutes a “cessation” of labor and a “completion” of the project. (Civ. Code, § 3086.) 1 The cessation of labor on or completion of the project commences the period during which stop notices must be filed under California’s lien laws. (§ 3184.) Here, a subcontractor’s fai...
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Opinion The Board of Podiatric Medicine, Medical Board of California, Department of Consumer Affairs (the California Board) appeals from a judgment granting a writ of administrative mandamus (Code Civ. Proc., § 1094.5) brought by Dr. Neal Allen Marek and Dr. Robert G. Basinger (petitioners). Petitioners had successfully challenged in the superior court the California Board’s disciplinary ...
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509 U.S. 502 (1993) ST. MARY'S HONOR CENTER et al. v. HICKS No. 92-602. United States Supreme Court. Argued April 20, 1993. Decided June 25, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *504 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Whi...
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announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice Blackmun join, and in which Justice Kennedy joins as to Parts I and IV. In a common-law action for slander of title, respondents obtained a judgment against petitioner for $19,000 in actual damages and $10 million in punitive damages. The question we granted certiorari to decide is whether that pun...
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Opinion Delfino Muniz was charged with conspiracy to commit an assault with a firearm. He waived his right to a jury trial, submitted the matter to the trial court on the transcript of his preliminary hearing, and was convicted. We affirm. Facts Muniz was originally charged with one count of conspiracy to commit murder. At his preliminary hearing, the prosecutor called only one witness, Dep...
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The Governor of Guam (the Governor) appeals the decision of the Secretary of Health and Human Services (the Secretary) disapproving the Governor’s change in designation of an agency in Guam to protect and advocate the rights of persons with developmental disabilities under 42 U.S.C. § 6042. We dismiss the appeal for lack of jurisdiction in this court. PROCEEDINGS Under 42 U.S.C. § 604...
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William J. Calise was convicted of the knowing possession of an unregistered shotgun with a barrel less than 18 inches in length in violation of 26 U.S.C. § 5861(d); with the knowing transportation and delivery in interstate commerce of an unregistered shotgun with a barrel less than 18 inches in length in violation of 26 U.S.C. § 5861(j); and knowingly making a shotgun with a barrel less than 18...
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Opinion Appellant Billy Trimble appeals from his conviction of one count of second degree burglary of a trailer coach. (Pen. Code, § 459.) He contends on appeal that the trial court was in error in failing to instruct the jury that for the appellant to be guilty of burglary the jurors must find that the trailer coach was locked. Additionally, he claims the trial court erred in not instructing t...
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Opinion We can safely say, without fear of contradiction, that the attorneys in this case know their way to the Court of Appeal. Before this *1264 latest round, the various parties had petitioned this court for some type of extraordinary relief on no less than five occasions, resulting in four summary denials and one unpublished opinion. 1 If we could issue frequent flyer miles, these parti...
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Opinion We transferred this case from the appellate department of the superior court on our own motion (Cal. Rules of Court, rule 62(a)) to determine whether an employer can unilaterally dismiss an action after it had appealed a Labor Commission award by seeking a trial de novo in municipal court. Consistent with the practice concerning trial de novo following arbitration, we hold an employer d...
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Opinion Paul D. Maloney appeals from the summary judgment entered in favor of defendants ANR Freight System, Inc. (ANR) and International Brotherhood of Teamsters, Local 63 (Local 63) in Maloney’s action for damages and injunctive relief to remedy unlawful employment discrimination based on physical handicap in violation of the Fair Employment and Housing Act (the FEHA, Gov. Code, § 12920...
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Opinion I. Introduction In this case of contractual arbitration we hold that when a dispute arises over the appointment of an arbitrator, or between an arbitrator and one of the parties concerning the arbitrator’s fee, the remedy is to petition the court to resolve the dispute. Delay in seeking such relief which prevents the arbitration from going forward does not toll the five-year ...
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Galicia-Gonzalez’s first run-in with federal law was when he was convicted for importing aliens for immoral purposes. See 8 U.S.C. § 1328. After he served his sentence, the INS issued Galicia-Gonzalez (an undocumented alien) an order to show cause why he should not be deported. He waived his deportation hearing, conceded deportability and was deported on January 23, 1992, through port of entry ...
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This case involves a question of first impression regarding the transfer of probation jurisdiction. We conclude that no liberty interest was at stake in the transfer of appellant’s probation jurisdiction from the district where the original crime was committed to the district where the appellant resided and the probation violations were committed. Therefore, no notice or hearing was required befo...
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We consider sentencing issues raised by the person responsible for launching mortar *596 attacks and planting car bombs designed to damage four government buildings in three California cities between 1987 and 1991. I As part of an ongoing effort to disrupt the functioning of the Internal Revenue Service, Dean Harvey Hicks initiated a series of attacks against IRS building...
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In this case we review a district court’s entry of summary judgment in an antitrust suit on the basis of the plaintiffs’ lack of standing. Because we conclude that appellant Hillis Motors, Inc., has standing to bring this action, we reverse. 1. BACKGROUND In June 1984 Hillis Motors, Inc., an automobile dealership, voluntarily filed a petition for relief under Chapter 11 of the Bankruptcy Code. Bec...
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5 Cal.4th 405 (1993) 853 P.2d 992 20 Cal. Rptr.2d 537 THE PEOPLE, Plaintiff and Respondent, v. MITCHELL CARLTON SIMS, Defendant and Appellant. Docket No. S004783. Supreme Court of California. June 28, 1993. *418 COUNSEL Leon Letwin and Richard A. Wasserstrom, under appointments by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assista...
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5 Cal.4th 382 (1993) 853 P.2d 978 20 Cal. Rptr.2d 523 SCOTT RUSSELL DuBOIS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, ROBERT A. ROHRER et al., Respondents. Docket No. S018824. Supreme Court of California. June 28, 1993. *385 COUNSEL William A. Herreras for Petitioner. Phillip N. Bruce as Amicus Curiae on behalf of Petitioner. John M. Rea, Leland D. Starkey, Vanessa L. Holton, Raoul Thor...
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5 Cal.4th 478 (1993) 853 P.2d 1037 20 Cal. Rptr.2d 582 THE PEOPLE, Plaintiff and Respondent, v. MARK STEVEN CAHILL, Defendant and Appellant. Docket No. S020126. Supreme Court of California. June 28, 1993. *481 COUNSEL Janice M. Lagerlof, under appointment by the Supreme Court, for Defendant and Appellant. Fern M. Laethem, State Public Defender, Robert D. Bacon, Deputy State Public Defender, Wilbu...
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*1293 Opinion A minority partner sued to recover his share of the proceeds of a sale of partnership property which occurred after he withdrew from the partnership, claiming he had relied on the majority partner’s representation that he intended to develop the property and would not sell it in bulk to third persons. The issue on this appeal is whether the representation supports a...
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Opinion Code of Civil Procedure section 337.15, 1 enacted in 1971, imposes “an absolute requirement that a suit against a contractor to recover damages for a construction defect be brought within 10 years of the date of substantial completion of construction, regardless of the date of discovery of the defect.” (Regents of University of California v. Hartford Ac...
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Opinion Insurance Code section 11873, subdivision (a) exempts the State Compensation Insurance Fund (the Fund) from most provisions of the Government Code: “[T]he fund shall not be subject to the provisions of the Government Code made applicable to state agencies generally or collectively, unless the section specifically names the fund as an agency to which the provision applies.” The Cal...
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Opinion This case addresses the propriety of a temporary child custody order issued in an action brought pursuant to the Domestic Violence Prevention Act (Code Civ. Proc., § 540 et seq.). We conclude the act confers jurisdiction on the superior court to enter a temporary child custody order only if the minor is the child of the petitioner and respondent in the Domestic Violence Prevention...
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Opinion This case involves cross-appeals from a declaratory relief judgment concerning the rights of the parties to a commercial lease and the rights of the beneficiary under a deed of trust who eventually purchased the property at a nonjudicial foreclosure sale. The primary issues presented are whether the foreclosure under the trust deed extinguished the lease itself, whether the foreclosure ...
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*1400 Opinion The principal issue in this case is whether a plaintiff whose action is assigned to a trial court delay reduction program, and against whom no affirmative relief is sought, generally retains the right to voluntarily dismiss the action without prejudice prior to trial. We conclude that this plaintiff retained that right, and that the trial court acted in excess of it...
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Tai Chiu Wong, a native and resident of Hong Kong, appeals from the district court’s summary judgment entered against him in his action to enjoin the District Director of the United States Immigration and Naturalization Service (INS), the Attorney General of the United States, and the Commissioner of the INS from deporting him. See Wong v. Ilchert, 785 F.Supp. 822, 825 (N.D.Cal.1991)...
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16 Cal.App.4th 1361 (1993) 20 Cal. Rptr.2d 506 THE PEOPLE, Plaintiff and Respondent, v. DAMON L. COOKE, Defendant and Appellant. Docket No. A056548. Court of Appeals of California, First District, Division Four. June 29, 1993. *1363 COUNSEL Mark D. Greenberg, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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A grand jury indicted ORS, Inc., under § 1 of the Sherman Act for conspiring to allocate territories and customers in the refuse collection business on the Island of Oahu. The district court dismissed the indictment. We have jurisdiction pursuant to 18 U.S.C. § 3731. We affirm. I.Facts On September 11, 1991, a grand jury sitting in the District of Hawaii indicted ORS, Inc., and Oahu Refuse Sy...
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997 F.2d 641 William S. HILO; Mansour Azizian; Mehdi C. Ghassemi;Nabil Helo; Pastor Apeles; Hossain Meftagh, etal., Plaintiffs-Appellants,v.EXXON CORPORATION; Exxon Company, USA; ChevronCorporation; Chevron U.S.A. Products Company,Defendants-Appellees. No. 92-56496. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 2, 1993.Decided June 30, 1993. ...
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We must decide, among other issues, whether the Railway Labor Act, 45 U.S.C. § 151, et seq., preempts a state law prohibiting employment discrimination on the basis of physical handicap. We hold that it does. We affirm the summary judgment dismissal of Croston’s action against his railroad-employer and his union. I. Croston, a machinist employed by Burlington Northern ...
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Lingenfelter, Marolf, and Morgan appeal from their judgments of conviction following conditional guilty pleas to conspiracy to import approximately 900 kilograms of marijuana in violation of 21 U.S.C. § 963. Lingen-felter and Morgan also challenge their conditional plea convictions for conducting a financial transaction involving the proceeds of drug trafficking in violation of 18 U.S.C. § 1956(a...
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OVERVIEW Adalberto Rubio-Topete was convicted of conspiracy to distribute heroin in violation of 21 U.S.C. § 846 and possession of heroin with the intent to distribute in violation of 21 U.S.C. § 841(a)(1). Rubio-Topete challenges the district court’s decision to exclude the testimony of Gabriel Soto and a defense investigator. He also contends that a two-level upward adjustment in his offens...
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We are called upon to consider whether the federal courts should abstain from deciding a case which turns on a state law preemption question not yet resolved by California state courts, notwithstanding the existence of an Attorney General’s opinion directly on point. I This lawsuit is a challenge to a city ordinance banning the use of wood shake and shingle roofing materials in new co...
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997 F.2d 604 62 USLW 2037 OUTDOOR SYSTEMS, INC., an Arizona corporation; Milton Lee,Trustee for the Danny O. Lee Trust, Plaintiffs-Appellees,v.CITY OF MESA, an Arizona municipal corporation, Defendant-Appellant.OUTDOOR SYSTEMS, INC., an Arizona corporation; Milton Lee,Trustee for the Danny O. Lee Trust, Plaintiffs-Appellants,v.CITY OF MESA, an Arizona municipal corporation, Defendant-App...
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Opinion Aram B. James, an attorney employed by a county public defender’s office, sued a newspaper and one of its employees for libel. The employee, acting as a bylined columnist for the newspaper, had written, and the newspaper had printed, a column which named James in the context of a discussion of asserted violations of law by defense attorneys in criminal cases involving child victim...
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Opinion In one of several matters involving San Benito County grower Paul W. Bertuccio, the Agricultural Labor Relations Board (the Board) found Bertuccio guilty of refusal to bargain in violation of the Agricultural Labor Relations Act (the ALRA) and ordered (among other things) that he make whole his employees for economic losses caused by the refusal. (Paul W. Bertuccio (Dec...
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Opinion Plaintiffs and Appellants Timothy Buhl, Jerald Bowman, Guru Bir Singh Khalsa and Peter Daniels appeal from a court order denying their motion for a preliminary injunction. 1 Plaintiffs seek to enjoin the state from enforcing California’s Mandatory Motorcycle Helmet Law, Vehicle Code section 27802 et seq. 2 (helmet law) during the pendency of their action to h...
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For the second time, Appellants Paul Ono and Benjamin Langshaw appeal their sentences imposed after being convicted for conspiracy to manufacture a controlled substance analogue and procuring the manufacture of a controlled substance analogue. In the Ono appeal we are now presented with a question left open in Ono’s earlier appeal and relating to reliance on the potency of the drug for sentenci...
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ORDER The opinion, filed on May 19, 1993, is withdrawn, and the attached opinion is filed in its place. OPINION In multiple-defendant cases, the government sometimes negotiates a “package deal” plea agreement, under which each defendant must agree to the deal before any will be allowed to partake of it. We consider whether such a plea is valid where the district court does not make its volu...
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Adebola Olumbunm Ajala, who was convicted in England and transferred to the United States to serve the remainder of her sentence, challenges the determination of the United States Parole Commission (“Commission”) establishing her release date pursuant to 18 U.S.C. § 4106A. Ajala claims that the Commission erred in two respects. First, the Commission failed to account for good time credit earned...
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Opinion Penal Code section 272 (hereafter section 272) provides that every person who commits any act or omits any duty causing, encouraging, or contributing to the dependency or delinquency of a minor is guilty of a misdemeanor. A 1988 amendment thereto (hereafter the amendment) provides that for the purposes of this section, parents or guardians “shall have the duty to exercise reasonab...
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Opinion Numerous California penal statutes allow increased punishment to be imposed upon a defendant if the prosecution alleges and proves that the defendant has suffered one or more prior convictions. In People v. Bracamonte (1981) 119 Cal.App.3d 644, 654 [174 Cal.Rptr. 191], the Court of Appeal held that the defendant is entitled to have the determination of the truth of such allegations bifurc...
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Opinion Plaintiff Elydia Zavala appeals from a judgment of nonsuit in her medical malpractice action against defendants. We affirm the judgment. On March 18, 1987, plaintiff filed a complaint in which she alleged that physician Judith Brillman failed to properly diagnose and treat plaintiff on June 5, 1986. Plaintiff claimed that, as a result of this alleged negligence, necessary sur...
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Opinion Defendant entered a plea of nolo contendere to second degree robbery (Pen. Code, §§ 211/212.5, subd. (b)—count l) 1 and forgery of an access card transaction (§ 484f, subd. (2)—count 2), and admitted four prior state prison commitments (§ 667.5, subd. (b)). Following the denial of defendant’s motion to withdraw his plea, he was sentenced to state prison for a total term of 10 years, 8...
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Opinion We find that plaintiff Patricia A. Walker was entitled to entry of a $15,000 judgment against defendant Michelle Belvedere pursuant to statutory liability imposed by the Vehicle Code. We reverse that part of the judgment denying Walker such relief. Background In February of 1987, Belvedere and Sydney Jane Allen lived together and were co-owners of the automobile involved in the acci...
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Richard Gerace argues that he is entitled to a new sentencing hearing or to withdraw his plea of guilty because the government breached a plea agreement providing that it would “stand silent at sentencing” when it argued against leniency at a subsequent probation revocation hearing. In addition, Ge-race contends that the district court violated Fed.R.Crim.P. ll’s prohibition against judicial part...
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We are called upon to decide whether a district court, on its own initiative, can refuse to enforce a judgment order because of a change in the law after the judgment became final. I In August of 1976, Clifton was convicted in California state court of first degree murder and sentenced to death. On direct appeal, his sentence was modified to life imprisonment with the possibility of p...
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999 F.2d 1341 1994 A.M.C. 1809 E.P. PAUP COMPANY; Insurance Company of North America, Petitioners,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, UNITEDSTATES DEPARTMENT OF LABOR; Arthur McDougall, Respondents,State of Washington, Department of Labor and Industries,Respondent-Intervenor.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS, Petitioner,v.E.P. PAUP COMPANY; Insurance Com...
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Opinion The Case Linda Kay Ingram appeals from the judgment entered on a jury verdict convicting her of possession of methamphetamine for sale (Health & Saf. Code, § 11378) and misdemeanor possession of marijuana (Health & Saf. Code, § 11357, subd. (b)). She was placed on probation for three years on condition, inter alia, she serve one year in the county jail. On appeal, she contend...
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*1721 Opinion We hold here that an attorney representing a partnership does not necessarily have an attorney-client relationship with an individual partner for purposes of applying the conflict of interest rules. Whether such a relationship exists turns on finding an agreement, express or implied, that the attorney also represents the partner. Respondent Superior Court of Fr...
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*1739 Opinion The Case Elisha Lee Glower appeals from the judgment entered on his guilty plea to one violation of Health and Safety Code section 11351.5, possession of cocaine base for sale. 1 The court sentenced appellant to the five-year upper term and imposed a $2,000 restitution fine and a $10,000 fine. Appellant contends the court (1) erroneously excluded evidence and denied his moti...
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John Lunstedt appeals his conviction for possession of a firearm in a Federal court facility under 18 U.S.C. § 930(d)(1). Lun-stedt contends that his conviction and ten-month sentence should be reversed because (1) the district court erred in denying his motion to dismiss the prosecution’s indictment; (2) there is insufficient evidence to support the jury’s verdict; and (3) the court gave the jur...
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Killer Music, Inc., doing business as HLC Partnership; TTBB, Inc., doing business as Killer Tracks; and Ron Hicklin (collectively, “Killer Music”) appeal the district court’s grant of Zurich Insurance Co.’s (“Zurich”) motion for summary judgment on Zurich’s declaratory judgment action and the dismissal of Killer Music’s counterclaims on a motion for summary judgment. The issues are whether Zurich ...
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On June 13, 1990, a federal grand jury returned a seven count indictment against defendant Paul Fairfax Soares. The indictment charged Soares with four counts of having received kickbacks “because of’ his fiduciary position as the investment advisor for an employee pension plan, in violation of 18 U.S.C. § 1954 (counts one through four), and with three counts of embezzling money from the same emp...
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ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS RE INVERSE CONDEMNATION I. INTRODUCTION The City brought its Motion for Judgment on the Pleadings pursuant to Rule 12(c), *697 Fed.R.Civ.P., on the grounds that Plaintiff Hira Patel’s claim for inverse condemnation fails to state a claim upon which relief can be granted. Clifford Greenberg appeared on behalf of the City...
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998 F.2d 1452 37 Fed. R. Evid. Serv. 296 UNITED STATES of America, Plaintiff-Appellee,v.Gary MEZZANATTO, Defendant-Appellant. No. 92-50261. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 2, 1993.Decided July 7, 1993. Mark R. Lippman, La Jolla, CA, for defendant-appellant. Shane P. Harrigan, Asst. U.S. Atty., San Diego, CA, for plaintiff...
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Defendants Martin Enriquez-Estrada (Estrada), Jorge Enriquez-Galaz (Galaz), and Donald Selig were charged with conspiracy and possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841 and 846. A jury convicted them on all counts. The district court had jurisdiction pursuant to 18 U.S.C. § 3231 (1988). We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291....
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ORDER Pursuant to the order of remand of the United States Supreme Court in Reno, Attorney General, et al. v. Catholic Social Services, Inc., et al., — U.S.-, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), this case is remanded to the district court for further proceedings consistent with that opinion....
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ORDER Pursuant to the order of remand of the United States Supreme Court in Reno, Attorney General, et al. v. Catholic Social Services, Inc., et al., — U.S.-, 113 S.Ct. 2485, 125 L.Ed.2d 38 (1993), this ease is remanded to the district court for further proceedings consistent with that opinion. ...
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988 F.2d 1165 14 ITRD 2481, 26 U.S.P.Q.2d 1018 TEXAS INSTRUMENTS INCORPORATED, Appellant,v.UNITED STATES INTERNATIONAL TRADE COMMISSION, Appellee,andAnalog Devices, Inc., and Cypress Semiconductor Corporation,Integrated Device Technology, Inc., LSI LogicCorporation and VLSI Technology, Inc.,Intervenors.CYPRESS SEMICONDUCTOR CORPORATION, Integrated DeviceTechnology, Inc., LSI Logic Corporat...
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The United States appeals from the March 30, 1992 judgment of the United States Claims Court 1 awarding attorney fees and costs against the United States as a sanction for its failure to comply with several discovery orders. Because the United States has waived its sovereign immunity in the Claims Court with respect to this sanction, we affirm. I The single issue raised in ...
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We explore the limits of the district court’s powers to impose conditions of supervised release. Background. Johnson pled guilty to possessing five or more identification documents with the intent to use them unlawfully. See 18 U.S.G. § 1028(a)(3). The court sentenced him to 12 months in prison. In addition to several standard conditions of supervision, the court imposed, for a term of one ...
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Donald Miller, a California prisoner serving an indeterminate life sentence for conspiracy to commit murder, appeals the denial of his petition for writ of habeas corpus. He claims his due process and contract clause rights were violated by the California Department of Correction’s refusal to grant him work credits pursuant to Cal.Penal Code § 2933. I. Until May 1983, Miller earned cr...
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Ralph G. Hatley appeals his conviction for three counts of distribution of cocaine and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) (1988). Hatley alleges on appeal that a search by police officers of an automobile that turned out to be inoperable violated his Fourth Amendment rights, and that the fruits of that search should therefore have been ...
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The Secretary of the Interior, the Northwest Forest Resource Council, The Association of 0 & C Counties and Benton County, along with various forest products companies, appeal the district court’s grant of summary judgment in favor of the Portland Audubon Society and other environmental groups (PAS) in PAS’s action challenging the Secretary’s decision not to supplement Timber Management Plans (TMP...
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We are called upon to consider, yet again, a takings challenge to mobile home rent control laws. I Levald, Inc. owns a mobile home park in the city of Palm Desert, California. Residents of the park own their mobile homes but rent pads from Levald. Levald provides private streets and common areas, along with other lesser amenities. The vast majority of mobile homes are never moved once...
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Marvin Carpenter was found by this court to have been wrongly convicted under the Lacey Act, 16 U.S.C. § 3372, and his case was remanded for sentencing for the other offenses he had committed. United States v. Carpenter, 933 F.2d 748, 762 (9th Cir.1991). He now appeals his new sentence. We reverse and remand for resentencing. PROCEEDINGS Carpenter was convicted of making a false statement...
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Opinion Larry E. Rembold, Jr., was convicted of a criminal offense and given the opportunity to complete 78 hours of community service in lieu of paying a fine. 1 He was fulfilling the community service option as a groundskeeper on the campus of California State University, Fullerton, when he was injured in a fall. He filed a claim for workers’ compensation benefits against the...
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5 Cal.4th 610 (1993) 854 P.2d 80 20 Cal. Rptr.2d 788 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL JOSEPH WADER, Defendant and Appellant. Docket No. S004792. Crim. No. 26426. Supreme Court of California. July 8, 1993. *625 COUNSEL David R. Pettit, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorne...
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Opinion This controversy between a real estate broker and his clients presents the following issues: (1) With respect to a contract arranged by their broker, can the clients ratify less than the whole of the contract? (2) Is the Invasion of Privacy Act (Pen. Code, §§ 630-637.6) 1 violated if a surreptitious recording of a confidential communication is not published to a third person? (3) Is a...
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*1800 Opinion Appellants, the City of Long Beach (hereafter the City), and James C. Hankla, City Manager of the City of Long Beach (hereafter Hankla), appeal from the judgment of the superior court granting a peremptory writ of mandamus in favor of respondent, Lawrence L. Binkley, the embattled Chief of Police for the City of Long Beach. The writ set aside appellants’ directive of March 2, 19...
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Opinion Alexis R. Austin appeals from an order taxing costs following a judgment entered in her favor on an arbitration award against respondent, Allstate Insurance Company. The court ruled that the only item appellant could recover against respondent was the $14 fee for filing her petition to confirm the arbitration award. Appellant had an automobile insurance policy issued by respo...
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ORDER GRANTING PARTIAL JUDGMENT ON THE PLEADINGS (F.R.C.P. 12(c)) I. INTRODUCTION Defendants Peralta Community College District (the “District”) and various named employees and board members of the District (collectively, the “moving defendants”) seek partial judgment on' the pleadings, 1 as regards all claims against them. Plaintiff Russel L. Moran (“Moran”) opposes the moving defendants’ ...
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ORDER The opinion in the above-entitled case at 983 F.2d 145 (9th Cir.1992) is amended as follows: Page 148, [4], line 16, strike “Where” through line 21, first column,' page 149. Replace with the following: Castillo contends that his chaining falls within this class of error. He points to Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525 (1986), describing shackl...
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This case involves the issue of whether the State of Washington’s retroactive application of a law authorizing the Indeterminate Sentence Review Board to set minimum.terms of incarceration for inmates serving mandatory life sentences is a violation of the Ex Post Facto Clause, of the United States Constitution. I. In 1975, Robert Patrick Powell was convicted in the State of Washington for first de...
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Donald Fetterly comes to us sentenced to death by the State of Idaho. Among his claims on appeal from a denial by the district court of his petition for a writ of habeas corpus is a claim that he should have been granted a stay to exhaust in state court newly identified Constitutional claims. Fet-terly’s newly appointed counsel had discovered these claims and wanted to include them in Fetterl/s p...
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Opinion Defendant Benjamin Lawrence Apodaca was charged by information in count I with possession of methamphetamine for sale (Health & Saf. Code, § 11378); in count II with possession of marijuana for sale (Health & Saf. Code, § 11359); in count III with possession of cocaine for sale (Health & Saf. Code, § 11351); and in count V with a misdemeanor offense of possession of drug paraphern...
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Jerrold S. Flemming, an Oregon state prisoner, appeals the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254. Flemming contends that the district court erred in concluding that the Oregon Board of Parole (“Board”) did not violate the Ex Post Facto Clause, U.S. Const. art. I, § 10, cl. 1, when it applied a regulation retroactively in calculating Flemming’s parole release da...
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Jacinto Garcia-Orozco was convicted of importation of marijuana and possession with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a) and 952, after Customs agents on December 31, 1991, discovered 120 pounds of marijuana in the vehicle Garcia-Orozco was driving across the Mexican border. Because Garcia-Orozco was prejudiced by the erroneous admission of his prior arrest for poss...
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Greg Searles, a resident of Arizona, brought an action in the Central District of California against Cincinnati Insurance Company (“Cincinnati”), which has its principal place of business in Cincinnati, Ohio. Searles alleged that Cincinnati breached its insurance contract when it failed and refused in bad faith to indemnify Searles for damages and costs of defense resulting from an action broug...
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998 F.2d 718 In re ALTABON FOODS, INC., a California Corporation, Debtor.COSSA & SONS, Appellant,v.TANI FARMS; Los Dos Valles Harvesting & Packing Co., Inc.;LCB Holding, Inc.; Martin A. Rechnitzer, Trustee;Fidelcore Business Credit Corp.; Aetna Life InsuranceCompany; George Griffith, Appellees. No. 91-56472. United States Court of Appeals,Ninth Circuit. Argued and Submi...
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Opinion North Coast Business Park (North Coast) appeals from the judgment entered after the trial court granted the motion for summary judgment filed by Erreca, Inc. (Erreca). Erreca’s motion was based on the statute of limitations. The trial court concluded (1) there was no triable issue of fact as to when North Coast first had notice of the defective condition; and (2) the statute of li...
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Opinion In this case, we consider the conditions under which certain time limits on commencing proceedings for workers’ compensation death benefits are suspended in favor of dependent minors by section 5408 of the Labor Code. (All statutory references are to that code unless otherwise indicated.) Section 4700 et seq. provides for payment of death benefits to persons dependent for support upon an ...
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Opinion Plaintiffs Frances Marie Jackson, individually and as special administrator, etc., et al., appeal from a summary judgment in favor *1835 of defendant Ryder Truck Rental, Inc. (Ryder) in plaintiffs’ lawsuit for wrongful death. We shall reverse the summary judgment. Factual and Procedural Background A. Facts. Stated most favorably to plaintiffs, e...
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This ease raises several previously unsettled issues regarding the claim of retaliation for whistleblowing. Janet Clark, the petitioner, appeals a decision of the Merit Systems Protection Board (MSPB or Board) that upheld two Department of the Army (Army) actions: demoting her through reduction-in-force procedures, and removing' her for failure to follow instructions and delay in carrying out i...
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FURTHER ORDER RE MOTION FOR SUMMARY JUDGMENT 1. INTRODUCTION Defendants United Van Lines, Turlock Van and Storage, LDM Moving Services, and Jerry John Van Lengen (collectively “.United”) move for summary judgment on the ground that plaintiff State Farm Fire and Casualty’s (“State Farm”) Carmack Amendment 1 claims are barred by failure to file a timely written notice of...
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Benjamin Meno Muna appeals the judgment of the Appellate Division for the District Court of Guam affirming his jury conviction in the Guam Superior Court for robbery, attempted robbery and criminal sexual assault. Muna contends that the Guam Superior Court made a variety of legal errors both prior to and during his trial. The Appellate Division had jurisdiction under 48 U.S.C. § 1424-3(b). We hav...
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998 F.2d 730 In re Jay S. SODERLING, Debtor.FEDERAL DEPOSIT INSURANCE CORPORATION, as manager of theFederal Savings and Loan Insurance ResolutionFund, Plaintiff-Appellee,v.Jay S. SODERLING, an individual, and Evelyn Ruth Soderling,his spouse, Defendants-Appellants.In re Leif David SODERLING, Debtor.FEDERAL DEPOSIT INSURANCE CORPORATION, as manager of theFederal Savings and Loan Insurance Resol...
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998 F.2d 735 62 Empl. Prac. Dec. P 42,424, 62 USLW2068, 2 A.D. Cases 1009,2 A.D.D. 532, 4 NDLR P 75 Melvin BUCKINGHAM, Plaintiff-Appellee,v.UNITED STATES of America, United States Postal Service, andAnthony M. Frank, Postmaster General, Defendants-Appellants. No. 91-56236. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1993.Decided July 13, 1993. ...
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Howard Lee Montgomery appeals his conviction of conspiracy to distribute and distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Montgomery also appeals the denial of his motion for relief under 28 U.S.C. § 2255. His main contention in both appeals is that the government did not use “reasonable efforts” to produce a confidential informant for a pretrial interview, the...
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ORDER DENYING PLAINTIFF’S MOTION FOR JURY TRIAL I. Background Plaintiff Dale Shadoan (“Shadoan”) brings this action pursuant to various sections of the *908 Employee Retirement Income Security Act (“ERISA”) in order to recover long term disability benefits (“LTDB”) under a plan sponsored and offered by his employer, Big Three Industries (“Big Three”). On July 14, 19...
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ORDER The issue before the court is whether a state prisoner who has petitioned for a writ of habeas corpus in federal court must obtain a certificate of probable cause to appeal the denial of a post-judgment motion for relief under Fed.R.Civ.P. 60(b). We conclude the petitioner must obtain a certificate of probable cause and remand this action to the district court for the limited purpose of d...
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Opinion Oryx Energy Company (hereinafter Oryx) was the lessee and the United States of America was the lessor of three mineral leases during the tax years 1983-1984, 1985-1986 and 1986-1987. 1 The leases granted to Oryx the right to take oil and gas from the federally owned land, and required Oryx to pay to the United States government a rent or “royalty” of approximately 13 pe...
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Opinion Permea, Inc., and its subsidiary, Zeks Air Dryer Corporation (collectively Zeks) appeal after a jury awarded plaintiff Anthony J. Roslan approximately $563,000 in his action for personal injuries. One third of the award was for noneconomic damages. The primary problem with this case is *112 that the trial court did not allow the jury to assess the comparative fault of two defendants w...
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Opinion Both plaintiff-homeowners and defendant-contractors appeal from a judgment in favor of plaintiffs Charles and Betty Shaffer for damages based on theories of negligence and breach of warranty arising from the construction of a custom home. A detailed review of the lengthy record in this case is unnecessary for the purposes of the issues raised in this appeal. It is sufficient to no...
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MEMORANDUM AND ORDER INTRODUCTION On September 14, 1992, the United Kingdom filed a formal request for the extradition of James Joseph Smyth to serve the remainder of his sentence for a 1978 conviction in Belfast, Northern Ireland. 1 Smyth has indicated that he will raise a defense to extradition pursuant to Article 3(a) of the Supplemental Extradition Treaty between the Government of the U...
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998 F.2d 754 GOVERNMENT OF GUAM; Joaquin Blaz, Director, Dept. ofRevenue & Taxation, Petitioners-Appellees,v.SUPERIOR COURT OF GUAM, Respondent,Guam Dai-Ichi Hotel, Inc., Real Party In Interest-Appellant. No. 92-15060. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 17, 1993.Decided July 14, 1993. David W. Dooley, Carlsmith, Ball, Wichman, Mu...
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The opinion filed October 5,1992, slip opinion 11929, and appearing at 976 F.2d 592 (9th Cir.1992), is amended as follows: 1. At slip op. at 11936, in the first sentence of the fourth full paragraph, at 976 F.2d at 595, in the first sentence of the last full paragraph, at slip op. at 11937, in the first sentence of the second full paragraph, and at 976 F.2d at 596, in the first sentence of the ...
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998 F.2d 743 143 L.R.R.M. (BNA) 2834, 62 FairEmpl.Prac.Cas. (BNA) 489,62 Empl. Prac. Dec. P 42,449,125 Lab.Cas. P 10,768, 26 Fed.R.Serv.3d 1158 Rosario RAMIREZ, Plaintiff-Appellant,v.FOX TELEVISION STATION, INC.; Chuck Ammann; NancyFerguson, Defendants-Appellees. No. 91-56233. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1993.Decided July 14, 19...
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Simoy appeals his conviction for felony murder, in violation of 18 U.S.C. § 1111, and robbery, in violation of 18 U.S.C. § 2111. Appellant contends that the district court erred in .finding that a witness’s identification of appellant was reliable, and therefore admissible at trial, despite an unnecessarily suggestive identification procedure. In addition, he claims that the district court abused...
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999 F.2d 1374 1994 A.M.C. 1214 Richard L. EDWARDS, Claimant-Petitioner,v.DIRECTOR, OFFICE OF WORKERS COMPENSATION PROGRAMS; ToddShipyards Corporation; Aetna Casualty and SuretyCompany, Inc., Respondents. No. 91-70648. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 8, 1993.Decided July 14, 1993. Diane L. Middleton and Marc Coleman, Middleto...
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Opinion In this personal injury action, plaintiff-appellant appeals from an adverse summary judgment and contends the release she signed was invalid because against public interest (Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 [32 Cal.Rptr. 33, 383 P.2d 441, 6 A.L.R.3d 693]) and because she couldn’t read it. We affirm the judgment. Procedural and Factual Background The facts a...
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Opinion On July 29, 1987, plaintiff and respondent, Arciero Ranches (Arciero) filed a verified complaint alleging that defendants and appellants Amador Meza, Raquel Meza, and Does 1 through 100 had willfully trespassed, and would continue to trespass, on a certain road (the farm road) located on the Brothers Ranch in Kern County and owned by Arciero. Arciero sought, inter alia, a permanen...
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Stephen Baker and Philip L. Caban appeal their convictions and sentences under the Sentencing Guidelines for bank robbery in violation of 18 U.S.C. § 2113(a). We reverse the convictions and remand for a new trial because appellants’ due process rights were violated when the government impermissibly commented in closing rebuttal argument on their post-Mircmda' silence. 1 BACKGROUND On Octobe...
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999 F.2d 1376 Viggo Thor BRANDT-ERICHSEN, Plaintiff-Appellant,v.UNITED STATES DEPARTMENT OF THE INTERIOR, BUREAU OF LANDMANAGEMENT; United States Department of Interior, NationalParks Service; Manuel Lujan, in his official capacity asSecretary of Interior; Charles Budge, in his officialcapacity as Superintendent of the Wrangell-St. EliasNational Park; Richard H. Martin, in his official cap...
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MEMORANDUM OPINION GRANTING THE UNITED STATES POSTAL SERVICE’S MOTION TO DISMISS I INTRODUCTION The United States Postal Service (“USPS”) moves this Court to dismiss defendant, USPS, and remand this case to state court. For the reasons stated herein, the USPS’s motion is GRANTED. II BACKGROUND STATEMENT On April 10, 1992, plaintiff filed a complaint in Municipal- ...
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Opinion On February 18, 1992, defendant Charles Robert Beck was charged by information with nine counts of grand theft (Pen. Code, §§ 484, 487, subd. T, counts 1-9), one count of securities fraud (Corp. Code, § 25401; count 10), and two counts of tax evasion (Rev. & Tax. Code, § 19406; counts 11-12). The information further alleged that appellant was ineligible for probation because the l...
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OPINION The appellee, Howard Weitzman, filed a malicious prosecution action in state court against, inter alia, the debtor’s Chapter 7 trustee, counsel for the trustee and the chairman of the debtor’s creditors’ committee. The trustee removed the action to the bankruptcy court. Weitzman dismissed the trustee and filed a motion requesting that the bankruptcy court abstain and remand the acti...
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The bankruptcy court sustained an objection by the Chapter 13 trustee to the confirmation of the debtors’ Chapter 13 plan of reorganization. Although numerous issues are raised in this appeal, the sole basis for denial of confirmation by the bankruptcy court was that the plan provided for payments extending over a period longer than three years without court approval as required under § 1322(c)...
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Petitioners, Dr. Robert Hunt and .physical therapist Leon DiPalma, appeal the Benefits Review Board’s decision that medical providers are not entitled to recover interest or attorney’s fees in conjunction with an award of medical fees under the Longshore and Harbor Workers’ Compensation Act (LHWCA). We have jurisdiction under 33 U.S.C. § 921(c), and we reverse. I In September of 1982, Paul Bj...
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998 F.2d 756 29 Collier Bankr.Cas.2d 347, 24 Bankr.Ct.Dec. 798,Bankr. L. Rep. P 75,378 In re DEL MISSION LIMITED, Debtor.The STATE OF CALIFORNIA STATE BOARD OF EQUALIZATION; TheState of California Employment DevelopmentDepartment, Appellants,v.Harold S. TAXEL, Trustee, Appellee. No. 91-56286. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1993.Deci...
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Bivens 1 defendant Steven Silverman appeals the district court’s denial of his. motion for summary judgment on the ground of qualified immunity. This is the second time he has filed a pre-trial appeal in connection with his assertion of a qualified immunity defense in this action. We dismiss the present appeal for lack of jurisdiction. I The facts are simple. On June 24, 1988, plaintiff Lin...
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Opinion Charged with the willful, deliberate, premeditated attempted murder (Pen. Code, 1 §§ 664/187) of his 15-year-old son, appellant was convicted of assault with a firearm (§ 245, subd. (a)(2)). The jury found true gun use (§ 12022.5) and great bodily injury (§ 12022.7) allegations. Prior felony conviction (§ 667, subd. (a)) and habitual offender (§ 667.7) allegations were bifurcated and,...
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998 F.2d 1480 62 Fair Empl.Prac.Cas. (BNA) 525,62 Empl. Prac. Dec. P 42,456, 62 USLW 2055 Priscilla GARCIA; Maricela Buitrago; United Food andCommercial Workers International Union, AFL-CIO,Plaintiffs-Appellees,v.SPUN STEAK COMPANY, a California corporation, Defendant-Appellant. No. 91-16733. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1992.Deci...
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Opinion Factual And Procedural Background 1 1. The Report of Child Abuse On the morning of May 9, 1989, eight-year-old Alicia W. complained of pain when she went to the bathroom. Her parents brought her to the Navy medical unit by 8:30 a.m. The family was then escorted to Children’s Hospital where staff determined Alicia had been raped and sodomized, and filed a report under the Child A...
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*232 Opinion Julie Ann Snow appeals the judgment denying her petition for a writ of mandate ordering the Department of Motor Vehicles (Department) to delete from its files references to her driving with excessive blood alcohol and suspension of her driver’s license. On July 21, 1991, California Highway Patrol Officer Eric Flynn arrested Snow for driving under the influence o...
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Opinion In this case there is no evidence the defendant plastic surgeon acted below the standard of care for plastic surgeons or that he acted in an intentional or outrageous manner. Accordingly we reverse a $400,000 judgment entered against him for failing to perform promised breast surgery on the plaintiff. Factual and Procedural Background I Plaintiff’s Medical History Plaintiff an...
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MEMORANDUM AND ORDER INTRODUCTION Plaintiffs and defendants have filed cross-motions for partial summary judgment. Plaintiffs seek a ruling that defendants are not entitled to assert a defense of qualified immunity in this matter. Defendants’ cross-motion seeks a ruling that they have qualified immunity for their actions on the date in question. Upon consideration of the briefs and arguments of...
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MEMORANDUM AND ORDER BACKGROUND: Plaintiff sues Defendants for the cost of an environmental cleanup under the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9601 et seq. (“CERCLA”). Defendants are seventeen can companies, a metal reclamation facility, two individual officers of that facility, and a corporation that operated a site adjace...
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Max C. McElmurry and White River Technologies, Inc. (WRT) appeal the February 10, 1992 Judgment of the U.S. District Court for the Eastern District of Arkansas, Northern Division, granting a motion for summary judgment filed by Arkansas Power & Light Company (AP & L) and Entergy Corporation. 1 The district court held that there were no relevant or material factual disputes precluding...
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Sahel Yámini Shamsi, a native and citizen of Iran, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of *762 her appeal as untimely. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we grant the petition for review. The oral decision of the Immigration Judge was rendered on March 19,1987. The parties agree that Shamsi had ten days, or until Marc...
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Alexandru, Sabina, Daniel, and Daniela Vlaidu, natives and citizens of Romania, petition for review of an order' of the Board of Immigration Appeals ("BIA"). The order in question dismissed as untimely their appeal from the decision of the Immigration Judge denying their application for asylum and withholding of deportation. We have jurusdiction pursuant to 8 U.S.C. § 1105a(a), and we grant the...
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ORDER AND OPINION Defendant John Henry Turner moves to suppress evidence seized subsequent to the stop and search of his vehicle and person. Mr. Turner argues that the National Park Service Ranger who detained him cannot articulate specific facts sufficient to support the reasonable suspicion of criminal activity that is necessary to justify the stop. Having heard proffers from both plaintiff a...
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Opinion Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others. By imposing such liability without fault on the person who hires the independent contractor, the doctrine seeks to ensure that injuries caus...
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Opinion Defendant and appellant Steven A. Wilson was convicted by a jury of two counts of attempted voluntary manslaughter and two counts of assault with a firearm. As to each count, the jury found the allegation that appellant personally used a firearm within the meaning of Penal Code section 12022.2, subdivision (a) to be true. On this appeal, appellant challenges the admission of two p...
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*67 Opinion Plaintiffs appeal from a judgment after a court trial in favor of defendant Great Southwest Insurance Company. The sole issue is whether a third party claim, resulting from an auto accident, is covered under a business liability policy which purports to exclude coverage for automobile-related losses. We conclude that the policy does not provide coverage for the losses...
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Appellant Luis Francisco Contreras-Ce-ballos 1 appeals his conviction on a narcotics charge. Contreras-Ceballos contends that the district court erred in refusing to transfer his ease from Anchorage to Juneau, Alaska. He also maintains that the district court should have suppressed evidence seized in a search of his apartment because the officers executing the search warrant did not comply with...
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Gregory Alan Morton appéals his jury conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He presents several issues; we need consider only one. We reverse and remand for a new trial because the district court erred in refusing to instruct the jury on self-defense. I. On an April morning in 1992, the U.S. Marshal and San Diego Police raided Morton’s apartment looking f...
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This case presents the question of whether research expenditures made by a partnership in order to develop a new technology were incurred in connection with its own trade or business, within the meaning of 26 U.S.C. § 174, where the partnership had contracted another firm to conduct the research and had granted that firm the opportunity to obtain for a nominal sum the exclusive right to market ...
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998 F.2d 1491 39 Fed. R. Evid. Serv. 320 UNITED STATES of America, Plaintiff-Appellee,v.David ARIAS-VILLANUEVA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Carlos Humberto ORANTES-ARRIAGA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Adolfo PLANCARTE-RAYA, Defendant-Appellant. Nos. 91-30393, 91-30403 and 92-30280. United States Court of ...
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Opinion In this appeal we consider an employee’s entitlement to attorney fees under Labor Code section 3856, subdivision (b), and *313 the interplay of that statute with Code of Civil Procedure section 1141.21. The first statute authorizes the recovery of litigation expenses and attorney fees when an injured employee alone prosecutes an action against a third party tortfeasor while the second...
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Opinion Plaintiff Dorothy Bush sustained personal injuries when she slipped and fell while dancing. She sued the organization sponsoring the *325dance and the public agency owning the dance hall. The trial court granted summary judgment against plaintiff based upon her assumption of the risk. We shall reverse. Factual and Procedural History Plaintiff filed a complaint for personal injury against ...
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Williams appeals from the district court’s summary judgment for I.B. Fischer Nevada, I.B. Fischer Properties, Inc., and Ira Fisch- *447 bein (together Fischer) and Foodmaker, Inc. (Foodmaker). Williams argues that the court erred in rejecting his antitrust claims against Fischer and Foodmaker on the ground that they constitute a common enterprise, incapable of conspiring to restrai...
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The government appeals from the district court’s order suppressing all evidence seized during a warranted search of Reeves’s law office. The government argues that the district court clearly erred in finding .both that Federal Bureau of Investigation Agent Per-eira (Agent) made false statements to' the federal magistrate who issued the warrant and that the resulting search exceeded the scope of...
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Opinion Appellant Felipe Evangelista Sixto was sentenced to die for the capital murder of five-year-old Jorge Garza. His convictions were overturned due to the ineffectiveness of his trial attorneys. Upon retrial, with representation by new counsel, he was again convicted but sentenced to life imprisonment without the possibility of parole. In the published portion of this opinion, we will cons...
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Opinion Michael Berry appeals from the judgment entered upon his conviction by jury of first degree murder, two counts of attempted murder, and one count each of second degree robbery and first degree burglary, with findings the murder was committed with personal use of a firearm and during the commission of the robbery and burglary. (Pen. Code, §§ 187, 664/187, 211,459,12022.5,190.2, subd. (a)...
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17 Cal.App.4th 405 (1993) 21 Cal. Rptr.2d 193 THE PEOPLE, Plaintiff and Respondent, v. DONYELL DEVONE SCOTT, Defendant and Appellant. Docket No. B065317. Court of Appeals of California, Second District, Division Seven. July 21, 1993. *407 COUNSEL Joseph Balistocky, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief ...
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Opinion Sexual harassment does not necessarily involve sexual conduct. It need not have anything to do with lewd acts, double entendres or sexual advances. Sexual harassment may involve conduct, whether blatant or subtle, that discriminates against a person solely because of that person’s sex. In this writ proceeding, we hold that sexual harassment occurs when an employer creates a h...
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999 F.2d 379 72 A.F.T.R.2d 93-5575, 93-2 USTC P 50,437 Richard L. JENSEN, Deceased; Fern M. Jensen, Petitioners,v.COMMISSIONER OF INTERNAL REVENUE SERVICE, Respondent. No. 92-70438. United States Court of Appeals,Ninth Circuit. Submitted April 27, 1993. 1 NOTE: THE COURT HAS WITHDRAWN THIS OPINION. SEE 999 F.2d 381. ...
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William P. Cuff, Jr. appeals his sentence imposed under the United States Sentencing Guidelines following a plea of guilty to theft of mail by a postal employee in violation of 18 U.S.C. § 1709. Cuff contends that the district court erred by adjusting his base offense level upward pursuant to Guidelines § 3B1.3 for abuse of trust. We have jurisdiction under 28 U.S.C. § 1291. We vacate the sentenc...
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999 F.2d 1387 72 A.F.T.R.2d 93-5495, 93-2 USTC P 50,430 TOWE ANTIQUE FORD FOUNDATION, a Nonprofit MontanaCorporation, Plaintiff-Appellant,v.INTERNAL REVENUE SERVICE; Department of Treasury; UnitedStates of America, Defendants-Appellees. No. 92-35317. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 6, 1993.Decided July 22, 1993. Gerald Murphy...
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999 F.2d 1362 72 A.F.T.R.2d 93-5403, 93-2 USTC P 50,388 TRANSAMERICA CORPORATION, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 90-16674. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 10, 1991.Submission Withdrawn Feb. 5, 1992.Resubmitted Feb. 26, 1993.Decided July 7, 1993. Cameron W. Wolfe, Jr., Orrick, Herrington...
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Opinion One spouse employed by a close corporation is record shareholder of 30 percent of its stock. The stock is community property. We must decide the scope of the other spouse’s right to discover records of the corporation in a marriage dissolution proceeding. The trial court and Court of Appeal ordered the corporation to produce business records and corporate and quarterly payrol...
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*238 Opinion At the close of evidence in a bench trial, plaintiffs Jan F. Wilson and Redondo Investments, Inc. (Redondo), a Texas corporation wholly owned by Wilson’s husband, George Cl eland, moved for judgment on the pleadings. Defendants, S.L. Rey, Inc., San Ysidro Associates, III (SYA), and Juan Orendain moved for judgment under Code of Civil Procedure section 631.8. The tria...
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Opinion In this action we consider whether the complaint filed by plaintiffs Mathew Zaherí Corporation, doing business as Hayward Mitsubishi, and Mathew Zaherí was properly dismissed for failure to exhaust their *291 administrative remedy. We conclude it was and affirm the judgment in favor of defendant Mitsubishi Motor Sales of America, Inc. Procedural History 1 On July 12, 1991, plain...
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Opinion Defendants Los Angeles Unified School District (LAUSD) and seven individual members of the Los Angeles City Board of Education (the Board) 1 appeal from a preliminary injunction enjoining them from using tiie work time of public employees and “public funds or other public resources to adopt, prepare, print, distribute, or disseminate a promotion or advocacy position in ...
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Opinion Plaintiffs appeal from summary judgment in favor of defendants on plaintiffs’ complaint for $200 million damages alleging various contract and tort theories. 1 The underlying dispute arises out of a concession agreement with the City of Los Angeles for operation of an equestrian facility on City-owned land in Griffith Park. In 1988, plaintiffs lost their interest in the...
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ORDER GRANTING MOTION FOR CONTEMPT UPON RECONSIDERATION On April 26, 1993, at 10:30 a.m., REEBOK’s motion for reconsideration came on for hearing. The hearing was conducted telephonieally, and the court stated that it would file this order shortly. The Court has fully considered this matter, including review *623 of the papers filed by the parties, the authorities cited there...
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Richard Gordon and the United States appeal interlocutorily the district court’s order reinstating Lieutenant Colonel Richard Gordon, M.D., as a defendant in a medical malpractice action and refusing to substitute the United States in his place. We consider the interrelationship of the Federal Tort Claims Act, the Federal Employees Liability Reform and Tort Compensation Act, the Gonzalez Act, a...
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ORDER ADDRESSING MOTIONS FOR RECONSIDERATION, FOR SUMMARY JUDGMENT FOR LACK OF SUBSTANTIAL SIMILARITY AND FOR CONTRIBUTORY INFRINGEMENT. On May 5, 1993, at 2:00 p.m., the court conducted a hearing to address the following issues: (1) Hewlett-Packard Company’s (“HP”) and Microsoft Corporation’s (“Microsoft”) motions for summary judgment for lack of substantial similarity; (2) App...
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Opinion More than a century ago, the United States Supreme Court declared, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . ‘The right to one’s person may be said to be a...
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Opinion An information charged defendant Victor Manuel Limón with possessing heroin for sale (count one; Health & Saf. Code, § 11351) and possessing cocaine for sale (count two; Health & Saf. Code, § 11351). Defendant made an unsuccessful suppression motion at his *529preliminary hearing. He renewed the suppression motion in the superior court based on the transcript of the preliminary hearing an...
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ORDER A review of subsequent events in this matter demonstrates that this ease finally has been disposed of and all appellate matters thereby rendered moot. Accordingly, our opinion filed February 3,1993, 985 F.2d 1003, and amended on March 3, 1993 (Slip op. No. 90-30252) is ordered vacated and withdrawn from publication. Any remaining aspects of this appeal are ordered dismissed. ...
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Opinion In this insurance coverage dispute, State Farm Mutual Automobile Insurance Company (State Farm) appeals from a judgment in favor of Viking Insurance Company (Viking). The issue on appeal is whether under California law an underinsurance carrier, faced with claims from several insureds arising from one accident, can offset from the amount it owes to one of these insureds the amount...
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We consider how a defendant goes about establishing that a prosecutor’s race-neutral justifications for a peremptory strike are pre-textual. Background Changco was convicted by a jury of robbing a Post Office, carrying a firearm during a crime of violence and kidnapping. See 18 U.S.C. §§ 924(c)(1), 1201(a)(5), 2114. Although neither the government nor the defendant challenged any member of ...
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We are called upon to decide whether an alcoholic who is able to remain sober for considerable periods of time is entitled to disability benefits. I Tylitzki filed applications for Disability Insurance Benefits and Supplemental Security Income (“benefits”) based on alcoholism, nerves, mental problems, and depression. Benefits were denied both initially and, following a hearing, by the administrati...
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1 F.3d 830 WELLS FARGO BANK, Trustee of that Certain Testamentary TrustEstablished Under the Will of Anita Johnson Wand,Now Deceased, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant;Occidental College, Charity Remainderman of that CertainTestamentary Trust Established Under the Will ofAnita Johnson Wand, Now Deceased,Real-Party-In-Interest-Appellee. No. 91-55692. Uni...
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2 F.3d 870 62 USLW 2119 UNITED STATES of America, Plaintiff-Appellee,v.Juan Dale REESE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Scott Matthew DWYER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Daniel Wayne BROUSSARD, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Larry Marcel HOUSTON, Defendant-Appellant. Nos. 91-103...
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*558 Opinion Michael James Siravo was convicted by a jury of sexually assaulting his wife’s housemate. The primary issue on appeal is whether the trial court properly compelled Mrs. Siravo’s testimony after she asserted the marital privilege. (Evid. Code, § 970.) We conclude that there is no marital testimonial privilege here because the victim was a “cohabitant” of appellant’s spouse. (Evid....
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OPINION Debtors appeal money judgments based on final fee awards. The judgments were entered after the bankruptcy case was dismissed and while an appeal from one of the fee awards is pending before the Ninth Circuit. For the reasons set forth below, we AFFIRM. FACTS AND PROCEEDINGS BELOW The bankruptcy case below arose out of the debtors’ attempt to preserve ownership of inc...
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1 F.3d 843 1993 A.M.C. 2739 Renate CRETAN, Widow of John Cretan; Nicole Cretan,Daughter of John Cretan, Petitioners-Cross-Respondents,v.BETHLEHEM STEEL CORPORATION, Respondent-Cross-Petitioner,andDirector, Office of Workers Compensation Programs, Respondent. Nos. 90-70589, 90-70634. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 14, 1993.Decided July 28...
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This is an appeal from the district court’s dismissal of an action against a foreign corporation for lack of personal jurisdiction. We affirm. BACKGROUND The Panay Sampaguita, a ship sailing from Singapore to France, collided with an oil platform in Egyptian waters. The ship was owned by a Panamanian corporation and bareboat chartered 1 by Leonis Navigation (“Leonis”), a Ph...
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Opinion Following a jury trial, defendant Kevin Lamar Lipscomb was convicted of one count of first degree robbery (Pen. Code, §§ 211-212.5); 1 one count of false imprisonment by means of violence (§§ 236-237); one count of assault with a firearm (§ 245, subd. (a)(2)); and related firearm use enhancements (§ 12022.5). On appeal, defendant contends, inter alia, that his assault conviction must ...
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Opinion We review a decision of the Workers’ Compensation Appeals Board (Board) after reconsideration in which the Board ordered payment of $7,060 to applicant’s landlord, lien claimant Kenneth A. Hilton, from applicant’s workers’ compensation award of $12,000. Applicant has petitioned for a writ of review, contending that the order violated Labor Code sections 4901 and 4903 and that the Board fa...
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Opinion The San Jacinto Unified School District (School District) appeals from the judgment entered in favor of California Ranch Homes Development Company of Hemet (CRH) on CRH’s petition for writ of mandate. The judgment required the School District to refund to CRH school impact fees totaling $73,143.20 plus interest. On appeal, the School District contends the court erred in determining that...
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AMENDED OPINION United California Savings Bank, formerly known as Anaheim Savings & Loan Association, appeals an order of the bankruptcy court confirming the Chapter 13 plan of the debtor Dannette M. Martin. We affirm. STATEMENT OF THE FACTS On January 29, 1991 the debtor, Dan-nette Martin, executed and delivered a promissory note to Liberty Federal Service Corporation f...
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Gary Doupnik appeals the district court’s grant of summary judgment in favor of General Motors in its diversity action for equitable indemnity under California law. The court ordered indemnity from Gary Doupnik for 80 percent of a $1.6 million loss of consortium judgment that was rendered in favor of Sally Doupnik, Gary’s spouse, in an underlying state action. We have jurisdiction pursuant to 2...
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Trustee James Rigby appeals the district court’s affirmance of the bankruptcy court’s decision that debtors William and Eleanor Hall exempted their residence from the estate. We have jurisdiction under 28 U.S.C. § 158(d), and we affirm. I On December 26, 1985, the Halls petitioned for Chapter 11 bankruptcy and, under a federal statute, claimed a homestead exemption of “all” value in their res...
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998 F.2d 764 P.O.P.S., a Washington non-profit corporation, Plaintiff-Appellant,v.Booth GARDNER, Governor, State of Washington; RichardThompson, Secretary, Washington Department ofSocial & Health Services; WashingtonState Office of SupportEnforcement,Defendants-Appellees. No. 91-36118. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 10, 1993.Decided Ju...
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dissenting: The majority holds that Floyd’s sentence must be vacated so that the district court may conduct a hearing pursuant to Federal Rule of Criminal Procedure 11 on whether to accept the “acknowledgment” as an effective amendment of the original plea agreement. If under the provisions of the original plea agreement the government was not obligated to move for a downward departure because Flo...
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I. OVERVIEW Edward S. Nielsen and two others formed Mid-Pacific Airlines in 1979. Nielsen was vice-president and responsible for most financial matters, including accounting and paying transportation tax. Nielsen was convicted of willfully aiding, assisting in, procuring, counseling, and advising the presentation of Quarterly Federal Excise Returns for three quarters of 1985 that were fals...
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AMENDED ORDER This case involves challenging questions concerning the applicability of work product immunity and state law privileges in protecting the prosecution files of deputy district attorneys employed by the County of Sacramento from discovery in a subsequent, related federal civil rights action. With understanding that there exist reasonable arguments on both sides of the issue, the court...
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ORDER DENYING PLAINTIFFS’ REQUEST FOR PRELIMINARY INJUNCTION I. FACTS AND BACKGROUND On August 20, 1992, the Academy of Motion Picture Arts and Sciences (the “Academy”) invited Uruguay, along with several other foreign countries, to submit films for consideration for the 1992 Oscar nomination for Best Foreign Language Film. In response, the director of Cinemateca Uruguaya (“C...
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Opinion Charles Harris was convicted of second degree murder (Pen. Code, §§ 187, 189; all further statutory references are to the Penal Code unless otherwise indicated), seven counts of attempted murder (§§ 664, 187), and two counts of robbery (§ 211).1 He seeks a writ of habeas corpus, claiming, inter alia, that the superior court lacked subject matter jurisdiction over him because he had not at...
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Opinion Anita Marie Sutherland (defendant) appeals from the judgment after a jury convicted her of forgery (Pen. Code, § 470), burglary (Pen. Code, § 459), and soliciting a minor to commit a felony (Pen. Code, § dSSj). 1 She argues the judgment must be reversed because the court failed to give proper jury instructions, because the prosecutor committed prejudicial misconduct, and because she w...
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Opinion The San Francisco Bay Guardian, Inc., and Bruce B. Brugmann, the Bay Guardian’s publisher (petitioners), seek a writ to require respondent court to grant their motion for summary judgment. We issue the writ for the reasons explained below. Facts In the March 27, 1991, issue of the paper, the Bay Guardian included a parody of itself lampooning various issues, public officials and pri...
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I generally agree with the reasoning and conclusions in the majority opinion, but write separately to emphasize a few points. 1. The Supreme Court Policies Regarding Cases Arising From Judgments of Death As the majority opinion recognizes, this court promulgated the Supreme Court Policies Regarding Cases Arising From Judgments of Death, policy 3 (hereafter Supreme Court Policies), to facilitate an...
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*596 Opinion Defendant, Donald E. Peel, was charged with attempted murder (Pen. Code, §§ 664, 187), 1 possession or explosion of a destructive device (§ 12303.3), assault with a deadly weapon (§ 245, subd. (a)(1)), and possession of materials with the intent to make a destructive device (§ 12312). It was also alleged he personally used a firearm in the commission of the offenses charged in ...
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Robert William Weinert appeals his 151-month sentence imposed following his conviction by guilty plea to three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). W^einert contends that the district court erred by sentencing him as a career offender under U.S.S.G. § 4B1.1 because his prior California state conviction for shooting at an inhabited building does not qualify as a crim...
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998 F.2d 770 UNITED STATES of America, Plaintiff-Appellee,v.Robert John UMAGAT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellant,v.Cassandra Pangelinan BELANGER, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellant,v.Diana M. ROBERTO, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellee,v.Cassandra Pangelinan BELANGER, Defendant-Appellant.UNITED STATES o...
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BACKGROUND Michael Jackson is a California condemned prisoner at San Quentin State Prison. After receiving from the federal district court a number of stays of execution to allow him time to prepare a habeas corpus petition, Jackson filed an ex parte request for an order compelling Daniel Vasquez, warden of the prison, to transport Jackson to the University of California at Irvine, College...
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In this appeal, we consider whether a public housing tenant is entitled to a hearing before the denial of her request to add an additional family member to her lease. Appellant Lora Saxton (“Saxton”) brought suit against the Housing Authority of the City of Tacoma and its Executive Director (collectively, “THA”) after THA refused to restore her husband Ben Saxton (“Ben”) to the family’s lease. ...
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Jason McKinley Ward is the only Orthodox Jewish prisoner at Ely State Prison in Ely, Nevada. He brought suit under 42 U.S.C. § 1983, arguing that the prison infringes upon his First Amendment right to exercise freely his religion by not providing him with a kosher diet, clothes made of a single fabric, or an Orthodox rabbi; by not allowing him to have candles in his cell; and by refusing to gua...
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Opinion Ultramar, Inc., and South Coast Air Quality Management District (AQMD) each appeal from portions of a judgment. Therein, *696 the trial court upheld AQMD’s power to issue a regulation challenged by Ultramar, but found that AQMD had violated a provision of the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; hereafter CEQA) relating to a 30-d...
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Opinion Ronald Lesinski and Ruth Lesinski, objectors and appellants, appeal from an order granting the appointment of a provisional director to the board of ANNRHON, Inc., pursuant to Corporations Code section 308. On July 21, 1992, a hearing was held on the matter. On July 22, 1992, the court filed an order granting the petition and appointing Gene Deetz as the provisional director. On July 23, 1...
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FACTS On April 19, 1988, G.I. Trucking Company (“G.I.”) transported a shipment of intraocular lenses from Los Angeles to Calexico, California, for Eye Technology, Inc. (“Eye Tech”). The shipment was damaged, and Eye Tech sought and received compensation for its damages from its insurer, Insurance Company of North America (“INA”). Having paid Eye Tech’s claim, INA became the subrogee of...
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This is an appeal by officials of the State of Arizona (hereinafter, “the State”) from the grant of habeas corpus to Mitchell Thomas Blazak pursuant to 28 U.S.C. § 2254. The district court granted relief on Blazak’s claim that his due process rights were violated by the state trial court’s failure to determine his competency to stand trial. Blazak cross-appeals the denial of relief as to the remai...
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Opinion Once again we address a question which comes before us all too frequently—the right of a litigant to a jury after failing to post fees in a timely manner. We start with an admonition from Estate of Meeker (1993) 13 Cal.App.4th 1099, 1106 [16 Cal.Rptr.2d 825]: “[W]e need to remember that all of us are here to serve the public and that this cannot be done when judges are inundated with ...
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Opinion This appeal presents the question whether changed circumstances trigger a ministerial duty requiring a city to review and reevaluate a previously established speed limit on its streets. The trial court ruled there is such a ministerial duty and issued a writ of mandate directing the defendant City of Sacramento (City) to conduct engineering and traffic surveys of a segment of H St...
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Opinion Following trial by jury, appellant Ruben Contreras was found guilty of first degree murder with special circumstances (murder *816 during commission of robbery), attempted murder, conspiracy to commit robbery and two counts of robbery. The jury also found that Contreras personally used a deadly and dangerous weapon, a knife, in committing the offenses, and that he personally inflicted...
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Opinion Pierre B. Madison appeals from an order imposing a previously suspended four-year prison term after appellant’s exclusion from the California Rehabilitation Center. He contends the trial court erred in calculating his credits for time served. *786 Statement of the Case Appellant was committed to the California Rehabilitation Center (CRC) after pleading guilty to...
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John A. Breda brought suit against Alan M. Scott and Scott’s former law firm, Galton, Popick & Scott, for legal malpractice. The district court granted summary judgment for Scott, holding that the attorneys were immune from liability under 29 U.S.C. § 185(b), Section 301(b) of the Labor Management Relations Act. Breda appeals. We affirm. We review a grant of summary judgment de novo. ...
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Russell Bishop appeals his convictions for bank robbery and for conspiracy to commit bank robbery. He also challenges his classification as a career offender for purposes of sentencing. We affirm his convictions, but vacate his sentence and remand for resen-tencing. I Bishop argues that the district court abused its discretion in admitting evidence that he committed an earlier, unrelated bank robb...
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Michael H. Weitzenhoff and Thomas W. Mariani, who managed the East Honolulu Community Services Sewage Treatment Plant, appeal their convictions for violations of the Clean Water Act (“CWA”), 33 U.S.C. §§ 1251 et seq., contending that 1) the district court misconstrued the word “knowingly” under section 1319(c)(2) of the CWA; 2) the court improperly permitted witnesses to testify as to the meani...
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Opinion In dependency proceedings, an indigent parent is entitled to court-appointed counsel who “shall continue to represent the parent . . . unless relieved by the court upon the substitution of other counsel or for cause. . . (Welf. & Inst. Code, § 317, subd. (d).)1 Without reference to this statute, the Los Angeles Juvenile Dependency Court adopted a “policy memorandum” providing that attorne...
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Reebok International Limited and Reebok International Ltd. (“Reebok”) appeal from the order of the United States District Court for the District of Kansas denying Reebok’s motion for a preliminary injunction enjoining Payless Shoesource, Inc. from infringing Reebok’s trademarks, trade dress, and design patents. Payless Shoesource, Inc. v. Reebok Int’l Ltd., 804 F.Supp. 206, 25 USPQ2d...
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Federal prisoner Barbara Fraley appeals the district court’s dismissal of her 28 U.S.C. § 2241 petition for writ of habeas corpus. Fraley was convicted of passing counterfeit currency in violation of 18 U.S.C. § 472 and sentenced to ten months’ imprisonment followed by two years of supervised release. She seeks credit against her sentence for the seven months she spent under house arrest prior to...
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This case requires us to decide whether the new value “exception” to the absolute priority rule survives the enactment of the Bankruptcy Reform Act of 1978 (better known as the Bankruptcy Code), which replaced the Bankruptcy Act of 1898. 1 The new value exception allows the shareholders of a corporation in bankruptcy to obtain an interest in the reorganized debtor in exchange for new...
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Opinion Defendants Mary A. Carlson, the City Clerk of Dana Point, and the City of Dana Point appeal from a judgment ordering Carlson to certify a referendum petition to the city council that challenges the council’s passage of a resolution adopting a general plan and a local coastal program land use plan amendment (hereafter the plan). The primary issue is whether the referendum is invali...
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Opinion Peter and Adelia Pozzuoli (Insureds) appeal from a judgment in favor of Truck Insurance Exchange (Insurer). Insureds claim language in a “pollution exclusion” clause is ambiguous, and should be construed in *858 favor of Insureds. 1 The trial court found the language unambiguous, and granted summary judgment in favor of Insurer. We affirm. Background In December 1985, the Insure...
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Opinion In a dissolution, husband (David) claimed community interest in a corporation formed during the marriage, Gas Turbine Services Corporation (GTS), whose stock had been issued to wife (Barbara). In bifurcated proceedings the court found: (1) Barbara was the title holder to the GTS stock; 1 (2) judicial estoppel did not bar David from asserting community interest in GTS; (3) the increase...
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*802Opinion C. appeals a judgment of the juvenile court terminating her parental rights under Welfare and Institutions Code2 section 366.26 as to her minor daughter Vanessa W. Geiselle contends: (1) the court erred in finding she had not maintained frequent contact with Vanessa and continuing the relationship would not benefit Vanessa; (2) the court erred in failing to order visitation for Geisell...
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Clark Sullivan was prosecuted in a California court for first-degree murder based on theories of both premeditated murder and felony murder. The trial judge instructed the jury that it could find Sullivan guilty of first-degree murder without jury unanimity as to which theory had been proved. 1 Sullivan was convicted of first-degree murder and ten other counts, and sentenced to 49 years to life...
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1 F.3d 930 72 A.F.T.R.2d 93-5664, 93-2 USTC P 50,464 Berniece AWMILLER, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 91-35913. United States Court of Appeals,Ninth Circuit. Submitted June 11, 1993.*Decided August 5, 1993. Thomas F. Kelly, Kirkland, WA, for plaintiff-appellant. Bridget M. Rowan, Tax Div., U.S. Dept. of Justice, Washin...
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We must decide whether a corporate president may be held personally liable for his corporation’s failure to pay over federal withholding taxes to the Internal Revenue Service when he had delegated responsibility for all financial matters to his chief financial officer. I Joseph Purcell (“Purcell”) was president and sole shareholder of Purcell Temporaries, Incorporated (the “Company”)....
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*989 Opinion Petitioner Corona-Norco Unified School District (District) filed a petition for writ of mandate against the City of Corona and its city council (collectively, City). The petition challenged the City’s approval of a zone change for a residential project on the grounds that: (1) the zone change was inconsistent with the City’s general plan (General Plan); and (2) the City had faile...
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*882 Opinion I This appeal follows the trial court’s denial of an application for order of sale of a dwelling filed by plaintiffs and appellants, judgment creditors who sought to enforce judgments against defendant and appellant Nick Troy by having his residence sold. Concluding that appellants could not obtain a minimum bid under Code of Civil Procedure section 704.800, ...
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Opinion Statement of the Case Defendant Ignacio Miranda appeals from a judgment entered after his motion to suppress evidence (Pen. Code, § 1538.5) was denied and he pleaded guilty to possession for sale and sale of phencyclidine (PCP). (Health & Saf. Code, §§ 11378.5,11379.5.) He claims the trial court erred in *921 denying his motion to suppress evidence against hi...
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Opinion Does the implied covenant of good faith and fair dealing require a workers’ compensation insurer to defend and resolve claims with due regard to the impact of outstanding claims and reserves on the premiums *890 the insured will be assessed and on policy dividends it may receive? Alleging it had been damaged by defendant State Compensation Insurance Fund’s (SCIF) systematic failure to...
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Opinion We hold that in a paternity action under the Uniform Parentage Act, a nonattorney mother cannot represent her minor son as *962 guardian ad litem in propria persona, even though she cannot afford counsel and her son is a necessary party to the proceeding. We reach this conclusion because in California, as in other jurisdictions, absent specific statutory authorization...
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Opinion Statement of Facts Three defendants appeal following their convictions for murder. As none of the defendants directly raises a sufficiency of the evidence claim, we will briefly summarize, in accord with the traditional rule of appellate review (People v. Johnson (1980) 26 Cal.3d 557, 562 [162 Cal.Rptr. 431, 606 P.2d 738, 16 A.L.R.4th 1255]), the operative events of this murder-...
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ORDER AND MEMORANDUM DECISION The above-captioned case came on for hearing on April 26, 1993 at 10:30 a.m., in Courtroom 1 of the above-entitled court, the Honorable Gordon Thompson, Jr., presiding. Theresa Castagneto McAteer of Schall, Bou-dreau & Gore, Inc., appeared on behalf of plaintiffs; Peter H. Klee of Luce, Forward, Hamilton & Scripps appeared on behalf of defendant. The Court ha...
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1 F.3d 947 1994 A.M.C. 1216 CERAMIC CORPORATION OF AMERICA; Caffco Import Inc.; CaffcoInternational Inc.; C.C.C. Associates Inc., etal., Plaintiffs-Appellants,v.INKA MARITIME CORPORATION INC.; NSB NiederelbeSchiffahrtsgesellchaft mbH & Co. KG; Deutsche SeereedereiRostock GmbH & Co.; Senator Linie GmbH & Co. KG; Cho YangShipping Co., Ltd.; The Vessel M/V BREMEN SENATOR,D...
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The Department of Energy (DOE) loaned $99.6 million to two subsidiaries of the Parsons Corporation so they could develop a geothermal power plant. See The Geothermal Loan Guaranty Program, 10 C.F.R. pt. 790 (1990). In return, Parsons guaranteed it would pay DOE up to $3 million if its subsidiaries defaulted. A year later that’s what happened: The project collapsed, the borrowers defa...
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*1001 Opinion I. Introduction In this case we hold that when imposing an aggravated sentence on the ground the defendant committed perjury at trial, the sentencing court is constitutionally required to make on-the-record findings as to all the elements of a perjury violation. John Emmett Howard appeals from a judgment of conviction for forcible oral copulation (Pen. Code, § 288a, subd. (c...
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Opinion In a consolidated information defendant, Leonard A. Allen, was charged in counts I, II, and III with possession of cocaine base *1217 for sale. (Health & Saf. Code, § 11351.5.) He was also charged with one count of possession of marijuana. Defendant’s motion to suppress was denied. Pursuant to a plea bargain, defendant entered guilty pleas to counts I and III for poss...
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Opinion Hugh Binyon (appellant) appeals the judgment of dismissal of his petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) for lack of prosecution. 1 Respondents are the State of California, the California State Personnel Board and Charles W. Walter (collectively, the State). Appellant was employed as a senior special investigator with the California...
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Opinion In this writ proceeding we clarify an issue which evidently has been causing some conftision in certain trial courts. We construe the Supreme Court’s Foley decision (Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654 [765 P.2d 373]) to exempt from the statute of frauds oral employment contracts which are terminable within one year even when those contracts provide the term of em...
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Opinion The question on this appeal is whether a recorded order expunging a lis pendens affects a previously recorded abstract of judgment. We hold that it does not. Facts While living in Texas, Concepcion Steinberg guaranteed a loan made by Coronado Bank to a business she owned with her husband. Within seven months of each other, Steinberg and her husband died, leaving the loan...
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*1075 Opinion We hold in this case that an administrative subpoena duces tecum issued to obtain a third party witness’s personal records must be preceded by notice to the witness. Facts Ellen Sehlmeyer complained to the Board of Psychology of the State of California about Craig Stempf, a licensed clinical psychologist. The board initiated disciplinary action against Stempf and a hearing w...
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Opinion Plaintiffs appeal from a summary judgment granted in favor of defendant, contending that defendant violated various duties it owed plaintiffs, who had taken out a construction loan from defendant. Defendant appeals from the order denying its motion for attorney fees. We affirm the judgment and reverse the order. *977 Factual and Procedural Synopsis I. Fact...
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*1087 Opinion J. Alexander Securities, Inc., appeals from the judgment entered against it following the trial court’s denial of a motion to correct an arbitration award that included punitive damages. We affirm the judgment. Facts and Procedural History In 1980, respondent Signe Mendez, an elderly widow, opened a securities account with appellant J. Alexander Securities...
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In this case, we must decide whether bid-rigging and anti-trust claims brought by a trustee on behalf of a bankrupt estate are barred by the res judicata effect of a bankruptcy court’s sale order. BACKGROUND International Nutronics, Inc., the estate in bankruptcy, was in the business of sterilizing medical instruments and other equipment by gamma radiation. The sterilization process involved the u...
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Appellants Rocha and Sustaita were sentenced to 136 months and 169 months in prison, respectively, for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841 and 21 U.S.C. § 846 and for distribution and aiding and abetting the distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We affirm the sentence of Rocha. We reverse the sen...
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In this case, we once again are asked to review the relevant conduct provisions of the Sentencing Guidelines, U.S.S.G. § 1B1.3. Appellant Peter Chui Lin Wong contends that these provisions, which allow the consideration of total losses from groupable offenses as identified in section 3D1.2(d), violate the statutory mandate of the Sentencing Guidelines’ authorizing legislation. He asks us to determ...
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Opinion Samuel D. Dakin appeals from a judgment of dismissal of a petition for writ of mandate, which challenged the approval of a timber *684 harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition under the authority of Public Resources Code 1 section 21167.4, for failure to request...
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Opinion In these consolidated appeals, plaintiffs John and Irene Yee, owners of two contiguous mobilehome parks in the City of Escondido (the City) subject to rent control, appeal the denial of their petitions for writ of mandate seeking to invalidate the City’s decision authorizing only a $27.50 increase in rents. We conclude that the decision of the Escondido Mobilehome Rental Review Board (t...
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Lucy Ko Yao, a native of the Philippines and citizen of the Republic of China, entered the United States as a nonimmigrant visitor in June 1985 authorized to stay for six months. On September 27, 1988 she applied for adjustment of status as a special agricultural worker (“SAW”) pursuant to 8 U.S.C. § 1160. The next day the INS apprehended her and charged her with deportability for overstaying h...
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ORDER DENYING RESPONDENT’S MOTION TO VACATE STAY OF EXECUTION Respondent moves the Court in this death penalty case to vacate a 45-day stay of execution. The motion is DENIED. I. BACKGROUND Petitioner is a death-sentenced prisoner. In February 1993, petitioner filed a request for appointment of counsel in his federal habeas corpus proceeding, and moved to stay his April 1998 execution. Respondent...
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Opinion The instant case is an appeal from an order denying a petition to compel arbitration of a medical malpractice claim. *1229 Plaintiff Russell Coon (respondent herein) filed a complaint in Kern County Superior Court against defendant (appellant herein) George Nicola, Jr., M.D. Appellant treated respondent on or about April 4,1990, for injuries sustained by respondent in...
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Opinion Franklin S. Chadwick and Charlene D. Mandel (homeowners) were the insureds under a broad peril homeowners insurance policy issued by Fire Insurance Exchange (FIE). They noticed cracking in their walls, the cause of which was found to be substandard design and construction of the house’s wall and floor framing. FIE denied coverage on the grounds the policy excluded loss from “crack...
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17 Cal.App.4th 1128 (1993) 21 Cal. Rptr.2d 855 LEO R. HOUGHTALING, Petitioner, v. THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent; ANTHONY J. ROSSI et al., Real Parties in Interest. Docket No. E010985. Court of Appeals of California, Fourth District, Division Two. August 11, 1993. *1131 COUNSEL Leo R. Houghtaling, in pro. per., for Petitioner. No appearance for Respondent. John T. Borje f...
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1 F.3d 954 72 A.F.T.R.2d 93-5755, 93-2 USTC P 50,477 Dennis W. SCHILLINGER; Monica L. Schillinger, Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 91-70386. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 3, 1993.Decided Aug. 12, 1993. Arthur H. Boelter, Boelter & Gale, Seattle, WA, for petitioners-app...
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Appellant Alfred Adams seeks direct review of Federal Aviation Administration (“FAA”) Flight Standards Service Director Thomas Accardi’s decision not to renew his Pilot Examiner Designation. We conclude that we lack jurisdiction to review the FAA administrator’s decision. Accordingly, Adams’ petition is dismissed. Adams was designated as a Pilot Examiner, pursuant to the Federal Aviation (“FA”)...
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1 F.3d 1537 62 USLW 2107, 1 Wage & Hour Cas. 2d 897 William BIGGS, et al., Plaintiffs-Appellants-Cross-Appellees,v.Pete WILSON, Governor; Kathleen Brown, Treasurer; GrayDavis, Controller, et al.,Defendants-Appellees-Cross-Appellants. Nos. 92-15334, 92-15936. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 11, 1993.Decided Aug. 12, 1993. ...
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ORDER Plaintiffs Yolanda Baugh (“Baugh”) and her daughter, Donyelle Baugh, have filed suit alleging various torts arising from an episode of “STREET STORIES,” a weekly news magazine produced and broadcast by Defendant Columbia Broadcasting System, Inc. (“CBS”). Plaintiffs have also named Group W Television, Inc., the owner of CBS’ San Francisco affiliate KPIX-TV (“Group W”), and Dan Mogul...
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Opinion A general contractor was owed money for its work on a construction project. The attorney who had been representing the contractor in connection with the project recorded a mechanic’s lien but thereafter failed to serve a stop notice on the project’s construction lenders and failed to file a complaint to foreclose the mechanic’s lien. As a result of the attorney’s omissions, the contractor...
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5 Cal.4th 877 (1993) 855 P.2d 1277 21 Cal. Rptr.2d 705 THE PEOPLE, Plaintiff and Respondent, v. RICHARD GALVAN MONTIEL, Defendant and Appellant. Docket No. S004756. Supreme Court of California. August 12, 1993. *897 COUNSEL Gary M. Sirbu, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, R...
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Opinion Defendant and appellant Watson Land Company (Watson) appeals from a judgment in this eminent domain action brought by plaintiff and respondent Los Angeles County Sanitation District No. 8 (the District). Watson contends that the trial court erred in granting the District’s *1273 motions in limine excluding testimony of Watson’s expert regarding the value of...
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Opinion Introduction On July 7, 1993, this court issued a written order to Liang-Houh Shieh (Shieh) to show cause before this court on July 28 why we should not declare him to be a vexatious litigant as defined by Code of Civil Procedure section 391, subdivision (b)(4), and issue a prefiling order pursuant to Code, of Civil Procedure section 391.7, subdivision (a), prohibiting him fr...
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Opinion Introduction Appellant Daniel Patrick Rooney appeals from a conviction for possession of a short-barreled rifle. Appellant contends that the trial court used the wrong method to measure the rifle, and that if another method had been used, the weapon would have been over the minimum legal length. Statement of the Case By information filed on October 1, 1991, the Solano County Distr...
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*1252 Opinion Defendant and appellant Steven L. Edwards appeals the judgment entered following his conviction by jury of first degree burglary and two counts of grand theft. (Pen. Code, §§ 459, 460, subd. (a), 487, subd. 1.) Edwards admitted he had suffered a prior serious felony conviction within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced E...
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Opinion We reverse the trial court’s decision denying appellant Ronald Raygoza’s petition for a writ of mandate compelling reinstatement to his job. Background Raygoza, a Los Angeles County deputy marshal, applied for workers’ compensation on December 12, 1983, claiming injury to his psyche, as the result of a May 21, 1982, shootout. On October 24, 1986, the Workers’ Compensation Appeals Bo...
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Opinion H. Tim Hoffman appeals from a judgment dismissing his action against respondent J & D Painting following the court’s grant of summary judgment to respondent. In the dismissed action, appellant, who had already recovered the cost of repair for fire damage to his house, sought additional damages to compensate him for the decline in market value that his house suffered during the fiv...
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3 F.3d 300 37 Fed. R. Evid. Serv. 855 UNITED STATES of America, Plaintiff-Appellee,v.Mark Brock PALMER, Defendant-Appellant. No. 91-30291. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 4, 1992.Opinion April 5, 1993.Opinion Withdrawn Aug. 16, 1993.Order and Opinion Aug. 16, 1993. Peter S. Schweda, Waldo & Schweda, Spokane, WA, for defenda...
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Ogio seeks review of a decision of the Board of Immigration Appeals (“BIA”). Because we lack jurisdiction, we dismiss Ogio’s petition for review. I The BIA affirmed the immigration judge’s order of deportation on January 13, 1992. On March 17, 1992, Ogio filed a motion for reconsideration of this decision before the BIA. Subsequently, on April 9, 1992, Ogio filed this petition for review. I...
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Homer Penny appeals the judgment of the district court affirming the Secretary’s denial of his application for disability insurance benefits and supplemental security income benefits (SSI). The district court affirmed the ALJ’s conclusion that Penny was not “under any disability within the meaning of the Act at any time through the date of this decision” — May 17, 1989. Penny argues that the de...
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2 F.3d 948 FEDERAL DEPOSIT INSURANCE CORPORATION, as manager of theFederal Savings and Loan Insurance Fund, successor ininterest to the Federal Savings and Loan InsuranceCorporation, as receiver for Central Illinois Savings andLoan Association, Plaintiff-Appellee,v.Jeff SHOOP, a/k/a Jeffrey W. Shoop; Bill Boyer, a/k/aWilliam L. Boyer; Ronald J. Slovak; John C.Kafka, Defendants,andRobert F. ...
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MEMORANDUM OPINION AND ORDER RE: WESTLANDS WATER DISTRICT’S MOTION TO DISMISS AND FEDERAL DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND JUDGMENT ON THE PLEADINGS This matter comes before the Court based on motions made by two sets of defendants named in Plaintiffs’ “Second Amended Complaint For Equitable and Monetary Relief,” filed on February 18, 1992. Westlands Water District (“Westlands”...
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2 F.3d 961 Leon NOTRICA, Plaintiff-Appellant-Cross-Appellee,v.FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver of VernonSavings and Loan Association, FSA,Defendant-Appellee-Cross-Appellant. Nos. 92-55236, 92-55939. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 13, 1993.Decided Aug. 17, 1993. Carolyn Chapman, San Diego, CA, for plaintiff-appell...
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Wattson Pacific Ventures (“WPV”) appeals the district court’s order affirming a decision of the bankruptcy court that the revenues which Safeguard Self-Storage Trust receives from leasing storage space do not constitute cash collateral under 11 U.S.C. § 363(a). WPV argues that the contrary result is compelled under California law because the storage agreements are leases rather than licenses. W...
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Opinion In pertinent part, subdivision (b) of Penal Code section 4532 (undesignated section references will be to this code) provides that a violent or forcible escape from county jail by a prisoner convicted of (or facing prosecution for) a felony shall be punished by a term of two, four, or six years in the state prison “to be consecutive to any other term of imprisonment, commencing from the...
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*1402Opinion In this appeal we are faced with two troubling and recurring problems, one substantive, the other procedural. The substantive problem is this: If a minor becomes a dependent under the Welfare and Institutions Code because the minor’s parent is incarcerated, what reunification services are appropriate and reasonable? The issue is important because reunification services are a major com...
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Opinion Orr Brown appeals his conviction by a jury of molesting a child under the age of 14 years (Pen. Code, § 288, subd. (a)). Brown contends his conviction must be reversed because the court improperly admitted evidence of prior uncharged molestations and gave incomplete instructions on the subject. We reverse. Facts The Prosecution’s Case In 1987, Brown lived with his wife, Tena, an...
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Opinion Jose Godinez appeals from judgment entered after a jury found him guilty of attempted murder and conspiracy to commit murder, and found to be true allegations that he personally used a firearm and that the crimes were committed for the benefit of, at the direction of, and in association with, a criminal street gang, under Penal Code section 186.22, subdivision (b)(2). 1 In the publi...
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Opinion The Kaiser Foundation Health Plan, Inc., the Permanente Medical Group, Inc., and Kaiser Foundation Hospitals (hereafter Health Plan or Kaiser) appeal a judgment of the Alameda County Superior Court requiring extensive changes in the third party liability provision in service agreements with members. The theories alleged in the original complaint, filed by the plaintiff, Arthur Bra...
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Opinion Gregory Smart Hampton appeals from a judgment holding that $47,050 found in a search of Hampton’s residence is forfeited pursuant to Health and Safety Code section 11470. Facts On May 31, 1990, Hampton filed a claim asserting an interest in $47,050 that was seized in a search of his home. On June 18, 1990, the district attorney filed a petition instituting a civil action...
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Opinion East County Dodge was in the business, among other things, of selling vehicles supplied to it by Chrysler Credit Corporation (Chrysler) under a security agreement. For reasons which will be discussed, East *1308 County Dodge ostensibly deposited the proceeds from the sales of the vehicles in an account at Bank of the West to which both it and Chrysler were signatories...
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*1374 Opinion I Statement of the Case Following a jury trial, defendant Cruz Magana was found guilty of one count of first degree murder and two counts of attempted murder. The jury found true several enhancement allegations, including the allegations that as to the attempted murder counts, defendant personally inflicted great bodily injury upon the two victims. (Pen. Code, § 12022.7.) Se...
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The Government appeals the district court’s order granting Mr. Ramsden’s motion for the return of illegally seized documents pursuant to Fed.R.Crim.P. 41(e). The district court had jurisdiction under 28 U.S.C. § 1331. This court has jurisdiction under 28 U.S.C. § 1291. FACTUAL BACKGROUND On July 23,1991, the District Court for the Central District of California issued a provisional ar...
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This case is one of first impression as to the subpoena powers of the United States Customs Service (Customs). Invoking 19 U.S.C. § 1510, the United States sought enforcement of an administrative subpoena issued by the Customs under authority of 19 U.S.C. § 1509 and directed to I.D. Enterprises, Inc. and its president, Israel Rubin (here collectively I.D.). The district court ordered enforcement....
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*1360 Opinion The underlying action was brought by plaintiff Diane Barton against defendant and respondent Ahmanson Developments, Inc., and others for breach of contract. Appellant Vin A. Fichter, an attorney, formerly represented Barton in the lawsuit. During the time appellant was counsel of record, the trial court imposed a $2,850 sanction against Barton and appella...
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OPINION The guarantors Charles and Bette Alcock appeal the order of the bankruptcy court *25 allowing the claim of the lender, the Small Business Administration (“SBA”). The bankruptcy court found that the SBA’s claim against Alcock was not affected or barred under California Commercial Code §§ 3606, 9504, or California Civil Code § 2819. We affirm. STATEMENT OF THE ...
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ON MOTION ORDER Sanders Associates, Inc. and Calcomp, Inc. move to dismiss the appeal of Summagraph-ics Corporation and James David Jacobs for lack of jurisdiction. Summagraphics and Jacobs oppose. On March 31, 1993, the United States District Court for the District of Connecticut issued an order imposing sanctions against Summagraphics and Jacobs, attorney for Summagraphics...
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Grant Shaw fraudulently obtained a line of credit for $2 million from El Camino Bank by misrepresenting financial reports. Shaw was charged with and pled guilty to bank fraud under 18 U.S.C. § 1344, and was sentenced under the 1989 United States Sentencing Guidelines to one year in prison. The district court based Shaw’s sentence on the “intended loss” associated with the loan under U.S.S.G. § 2F...
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1 F.3d 960 Diana C. FERREIRA, Plaintiff-Appellant,v.Rosalia Mafnas BORJA; Isidora Mafnas Salas; Feliza M.Babauta; Carmen M. Guerrero; William M. Borja;Jose M. Borja; Juan M. Borja; Luna M.Borja; Patricia B. Robert,Defendants-Appellees. No. 92-15523. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1992.Decided Aug. 19, 1993. Donn Dimiche...
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Opinion In October 1984 defendant General Dynamics (GD) terminated plaintiff Randall Holmes, a 13-year management employee. Finding GD fired Holmes in violation of public policy by retaliating against him for disclosing to management the company’s violation of the false statements act (18 U.S.C. § 1001), 1 a jury determined Holmes was entitled to $106,000 for lost wages and be...
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ORDER Submission of this case is deferred and the case is temporarily remanded. Martin appealed from an order that left the amount of damages undetermined. Counsel for the parties stipulated before this court at oral argument that the amount of damages is an undisputed sum certain and that there are no remaining issues regarding damages. Specifically, the parties stipulated that Pacificare is...
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Opinion In this appeal from a judgment granting a permanent injunction imposing time, place and manner restrictions on the activities of antiabortion demonstrators at plaintiff’s Sacramento clinic, and from an order awarding attorney fees to plaintiff pursuant to Code of Civil Procedure section 1021.5, we reject defendants’ various challenges to the propriety and scope of the injunction. As we sha...
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Opinion Jose Oscar Esqueda was jury-convicted of second degree murder (Pen. Code, 1 § 187, subd. (a)) by use of a firearm (§ 12022.5) for the death of Ana Castillo and of possessing a firearm silencer (§ 12520). The trial court sentenced him to a total 23 years to life term and imposed restitution fines under Government Code section 13967 for $5,000 and $1,000 for each crime, respectively. ...
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2 F.3d 330 62 USLW 2133 UNITED STATES of America, Plaintiff-Appellant,v.Chong-Biao CHEN; Ok Son Chen, aka Debbie Chin; Xue DuanChen; Guan Chong Chen; Rong Hua Chen; Kan Chong Chen;Kong Gian Chen; Jia Zhun Chen, aka Chong Tia Chen; PingXae Chen, Defendants-Appellees. No. 92-50210. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 5, 1993.Decided Aug....
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1 F.3d 964 David Edwin MASON, By and Through Charles C. MARSON,Petitioner-Appellant,v.Daniel E. VASQUEZ, Warden of the California State Prison atSan Quentin, Respondent-Appellee.David Edwin MASON, Petitioner,andRandy Alana, Patrick Tafoya and Lee Terry Farmer, as nextfriends of David E. Mason, Applicants inintervention/Appellants,v.Daniel B. VASQUEZ, Warden of the California State Prison atSan...
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ORDER Having considered the merits of the above captioned appeals and having filed an opinion herein and the court being aware that a stay of execution was entered by the district court which shall remain in effect pending further action by this court and it appearing that further time may be required for consideration by this court whether to grant en bane reconsideration, now therefore, it is, O...
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Opinion On February 9, 1991, James Cleveland (decedent) died intestate. This appeal concerns whether appellant Andre Cleveland is entitled to a share of decedent’s estate. Appellant filed two petitions in probate court which sought to order respondent Annette May Thomas, trustee of the James Cleveland Trust, to convey certain real and personal property to the personal representative of de...
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Opinion Plaintiff Brad C. Westlye fell while snow skiing and was injured, allegedly due to defective ski equipment rented from defendant Klein’s Ski Shop (Klein’s) and distributed by defendants Look Sports, Inc., Look U.S.A., Inc., and Nórdica U.S.A., Inc. (the distributor defendants). 1 Plaintiff filed suit alleging claims of strict products liability, negligence, breach of wa...
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Opinion In this action alleging breach of contract, fraud, misrepresentation, and negligence in the sale of residential real property, plaintiffs/buyers Jess Brasier, Deborah Brasier, J. Raymond Brasier and Christine Hansen appeal on the judgment roll from a judgment following court trial in favor of defendant/seller Melvin E. Sparks. 1 Plaintiffs contend (1) the trial court erred in finding ...
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SENTENCING MEMORANDUM INTRODUCTION Four Los Angeles Police Officers, Stacey C. Koon, Laurence M. Powell, Timothy E. Wind, and Theodore J. Briseno, were indicted by the United States in a Two-Count Indictment filed August 4, 1992. The Indictment charges in Count One that defendants Laurence M. Powell, Timothy E. Wind, and Theodore J. Briseno violated Title 18, United States Code, ...
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Galvez-Villareal pled guilty to two counts of transporting undocumented aliens in violation of 8 U.S.C. § 1324(a)(1)(B). On appeal, he claims that the district court sentenced him erroneously under the Sentencing Guidelines by both failing to adjust downward because the offense was not committed for profit and improperly departing upward. We affirm the district court on both issues. I. FACTS ...
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Jorge Carrillo-Alvarez appeals his sentence on the ground that the district court improperly departed upward under § 4A1.3 of the sentencing guidelines. That section permits a departure if the defendant’s criminal history category under the guidelines inaccurately reflects his or her prior criminal conduct. We vacate and remand for resen-tencing. I. Jorge Carrillo-Alvarez (“Carrillo”)...
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Opinion I. Introduction Insurance claims arising out of leaking underground storage tanks raise the question of who will pay for the cleanup of millions of tons of toxic waste produced in the United States since World War II. This problem has sparked a legal war that has raged in both federal and state courts from Maine to California. (See Northern Ins. Co. v. Aardva...
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Opinion This is an appeal from a discretionary dismissal of an attorney malpractice action under Code of Civil Procedure sections 583.410 and 583.420, subdivision (a)(1), for failure to make service of summons on the defendant within two years after the action was commenced. 1 Plaintiff Jack Scarzella contends that the trial court abused its discretion in granting the motion fo...
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ORDER DENYING PETITION UNDER § 2255 Michael James O’Mara moves under 28 U.S.C. § 2255 to vacate his sentence. On October 15, 1990, O’Mara was convicted after jury trial of possessing an unregistered machine gun in violation of the National Firearms Act, 26 U.S.C. § 5861(d). He was sentenced to 21 months imprisonment. On May 8, 1992, the Ninth Circuit affirmed O’Mara’s conviction. Se...
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Eduardo Gallegos-Gonzalez appeals his sentence under the Sentencing Guidelines for his guilty plea conviction of distribution of phencyclidine in violation of 21 U.S.C. § 841(a)(1). The district court had jurisdiction under 18 U.S.C. § 3231, and this Court has jurisdiction over Gallegos’ timely appeal pursuant to 18 U.S.C. § 3742. We affirm. I Gallegos was convicted of selling $200 wo...
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*1236 OPINION Gary Spires appeals the district court’s denial of his motions to suppress evidence and disclose the identity of the government’s confidential informant. Because the district court erred in not holding an in camera hearing on the disclosure motion, we reverse that denial and direct that such a hearing be held. We also remand to permit Spires to withdraw his plea pursuant to Fe...
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Michael J. Muldoon appeals the dismissal of his personal injury action against Tropi-tone Furniture Company and The Marriott Corporation. The district court dismissed the action as time barred. We vacate and remand. I. Muldoon allegedly suffered an injury on September 12,1989, during a stay at the San Diego Marriott Hotel, when he adjusted a lounge chair manufactured by Tropitone Furn...
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Deno Price filed suit to recover damages against Provident Life and Accident Insurance Company for its failure to pay medical expenses incurred by his decedent son under an insurance contract issued through his employer. The district court granted summary judgment in favor of Provident, holding that the statute of limitations had run on Price’s claim. We reverse. Deno Price was provided medic...
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In May of 1987, an electrical transformer ruptured at the Piti Power Plant on the United States Naval Base in Guam, releasing a variety of toxic chemicals. Appellant Bartolome Abuan and a similarly situated class of plaintiffs (“Plaintiffs”) sued General Electric Company (“GE”) and Monsanto Company (“Monsanto”) for injuries arising from the accident. The district court granted defendants’ motio...
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Opinion This matter is before us on the State of California’s (hereafter the State) petition for writ of mandate and/or prohibition after *34 respondent superior court denied the State’s motion for summary judgment. Real party in interest Wilson has sued the State for failing to suspend or revoke the driver’s license of a diabetic person who ran head-on into the car driven by Wilson. We con...
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Opinion Pursuant to a plea bargain, appellant was convicted of rape (Pen. Code, § 261, subd. (a)(2)) and sentenced to eight years in prison. In a previous appeal (F015491) appellant contended the trial court failed to provide a hearing when appellant requested new counsel. (See People v. Marsden (1970) 2 Cal.3d 118 [84 Cal.Rptr. 156, 465 P.2d 44].) This court agreed,...
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Opinion Plaintiff transportation firm appeals from a defense judgment in an action for termination of a contract for vacuum truck services. 1 *6 Statement of the Case On January 31, 1991, plaintiff filed a complaint for breach of written contract, naming Shell Western E&P, Inc., and 50 Does as defendants and praying for compensatory damages according to proof. D...
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Opinion A jury convicted defendant of first degree murder prosecuted solely on a felony-murder theory and, further, found true the special circumstance allegation that defendant committed the murder while engaged in the commission or attempted commission of a robbery within the meaning of Penal Code section 190.2, subdivision (a)(17). Thereafter the trial court sentenced defendant to state pris...
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Opinion In an earlier proceeding, defendant pled guilty to assault with a deadly weapon and admitted inflicting great bodily injury in the commission of that offense. (Pen. Code, §§ 245, subd. (a)(1), 12022.7.) The sentencing court in that prior case then struck the great bodily injury enhancement. The issue in this appeal is whether that striking prevented the trial court in this subsequent ca...
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17 Cal.App.4th 1841 (1993) 22 Cal. Rptr.2d 220 DONNA E. MARSHALL et al., Plaintiffs and Appellants, v. LINDA S. McMAHON, as Director, etc., et al., Defendants and Respondents. Docket No. D015184. Court of Appeals of California, Fourth District, Division One. August 25, 1993. *1843 COUNSEL Charles Wolfinger for Plaintiffs and Appellants. Marilyn Holle and Sande Pond as Amici Curiae on behalf of Pl...
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Opinion Plaintiff Gai Thompson (owner) sued the defendant City of Lake Elsinore (the City), the building department, the city *52 council, and other individuals (all defendants referred to collectively as defendants), for damages allegedly resulting from the City’s failure to issue a building permit and its failure to issue a certificate of occupancy for owner’s renovated building after the f...
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Opinion Plaintiff Laura Malick (appellant) appeals from a judgment that dismissed her petition for a writ of mandate to command the Department of Transportation; James W. van Loben Seis, Director; and Preston Kelley, Director, District #4 (respondents), to cease building sound walls on Scenic Highway Interstate 680 and to remove those already installed. A demurrer to the petition had been susta...
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3 F.3d 1244 26 Fed.R.Serv.3d 835 UNITED STATES of America, Plaintiff-Cross-Defendant-Appellee,v.HIGH COUNTRY BROADCASTING COMPANY, INC.,Defendant-Cross-Claimant-Appellant,andC.R. Crisler, Applicant in Intervention-Appellant. No. 92-15581. United States Court of Appeals,Ninth Circuit. Submitted August 13, 1993*.Decided Aug. 27, 1993. John P. Greenspan, F.C.C., Washing...
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Appellant Alan Nohara (“Nohara”) appeals his conviction for distributing methamphetamine in violation of 21 U.S.C. § 841(a). The primary issue is whether Nohara had a reasonable expectation of privacy in the hallway outside his apartment in his high security, high rise apartment building. We hold that he did not and affirm. I. FACTS AND PRIOR PROCEEDINGS At 11:40 p.m. on February 6, 1992,...
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The Internal Revenue Service (IRS) challenged the returns of numerous taxpayers who invested in a tax shelter marketed by Encore Leasing Corporation (Encore). One of them, Wolf, appeals from a decision of the tax court upholding the IRS’s disallowance of several deductions on Wolfs 1979-1982 federal, income tax returns and affirming the IRS’s assessment of additions to tax and penalties. The ta...
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OPINION The bankruptcy court ruled over the objection of James L. Kennedy, trustee in bankruptcy, that three single-premium annuity contracts that the debtor had purchased for cash prior to the date of her Chapter 7 petition were exempt. The trustee appeals. We reverse. I. FACTS Before filing her voluntary petition under Chapter 7 of the Bankruptcy Code, debtor sold her non-exem...
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*422 Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting a writ of mandate (Code Civ. Proc., § 1094.5) directing it to set aside an order suspending Charles Ray Mosier’s driving privilege. Mosier’s license was suspended under Vehicle Code section 13353.2, subdivision (a), 1 after he was arrested for driving with a blood-alcohol level of .08 ...
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Opinion This action arose from a dispute among several water districts, all members of Kern County Water Agency (KCWA), over how certain costs charged to KCWA by the State of California Department of Water Resources (State) should be allocated among the member districts. Following a month-long nonjury trial, the court below issued a declaratory judgment generally favorable to two member d...
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Opinion I. Introduction This case presents the question whether a third party defendant which, pursuant to Witt v. Jackson (1961) 57 Cal.2d 57, 72 [17 Cal.Rptr. 369, 366 P.2d 641], seeks to reduce any judgment against it by the amount of workers’ compensation benefits paid to an injured employee, may compel the employer’s participation as a cross-defendant in th...
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Opinion Statement of the Case and Pertinent Facts On May 21, 1992, Delano police officers seized several items of property in connection with an arrest for sale of cocaine. Seized were $400 and $42 in United States currency, $8,445.56 cash from a Bank of America account, and a 1990 Acura two-door sedan, vehicle identification No. JH4DA9460LS010441. On May 27, 1992, apparently af...
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On June 30, 1992, a grand jury indicted James Eugene Smallwood on .one count of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). Ultimately, Smallwood pleaded guilty, and the district court sentenced him to 160 months of incarceration followed by three years of supervised release. Smallwood appeals his sentence. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. ...
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2 F.3d 335 144 L.R.R.M. (BNA) 2107 Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, for and on behalfof the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellant,v.CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellee.Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, for and on behalfof the NATIONAL LABOR RELATIONS B...
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3 F.3d 1246 62 USLW 2200, 17 Employee Benefits Ca 1022 John FLANAGAN; Joseph Missett, individually and on behalfof all others similarly situated, Plaintiffs-Appellants,v.INLAND EMPIRE ELECTRICAL WORKERS PENSION PLAN & TRUST; PaulL. Briggs; Ralph R. Ecker; Don H. Swartz; Glen L. Evans;George R. Elgin; Clayton M. Smith; John Doe, its namedfiduciaries, Defendants-Appellees. No....
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2 F.3d 335 26 Fed.R.Serv.3d 832, 37 Fed. R. Evid. Serv. 1008 Michael A. MONTIEL, Plaintiff-Appellant,v.CITY OF LOS ANGELES; L.A. Police Sergeant S. Alvarez, LosAngeles Police Officers Charles L. Scott, AmyNelson, Stanley K. Morishima, andRichard J. Mercado,Defendants-Appellees. No. 92-55157. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 9, 1993.Decide...
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OPINION In an adversary proceeding brought by the Debtor, Richard E. Shaw, the bankruptcy court found for the defendant, Sherry Mohageri, pursuant to Bankruptcy Code Section 549(c). Richard E. Shaw appeals and we REVERSE. STATEMENT OF FACTS: On January 21,1987, the Debtor, Richard E. Shaw, (hereinafter Shaw) filed a petition for relief under Chapter 11 of Title ll. 2 ...
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Opinion Donald R. Johnston appeals a judgment annulling his marriage to Brenda Johnston. I After a 20-month marriage, Brenda sought to have her marriage to Donald annulled. (Civ. Code, § 4425, subd. (d).) Donald agreed the marriage should be terminated but requested a judgment of dissolution be entered. At the trial, Brenda testified she was unaware of Donald’s severe drinking problem unt...
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*430 Opinion In Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1 [10 Cal.Rptr.2d 183, 832 P.2d 899], the California Supreme Court stated in no uncertain terms that, with limited exceptions, an arbitrator’s decision is not reviewable for errors of fact or law. Purporting to apply two statutory exceptions, the superior court here has vacated an arbitration award beca...
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Opinion Penal Code section 1534 1 requires that a search warrant be executed “within 10 days after date of issuance.” In this case of first *442 impression in California, we must decide how that 10-day period is to be computed. I. Facts At 11 a.m. on July 15, 1992, a magistrate signed a warrant authorizing the search of 4719 Melrose Avenue in Oakland. Pol...
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5 Cal.4th 950 (1993) 857 P.2d 1099 22 Cal. Rptr.2d 689 THE PEOPLE, Plaintiff and Respondent, v. RICHARD DEAN CLARK, Defendant and Appellant. Docket No. S004791. Crim. No. 26425. Supreme Court of California. August 30, 1993. *970 COUNSEL Paul G. Bower and Mary Lee Wegner, under appointments by the Supreme Court, William R. Lindsay, Daniel S. Floyd, Howard A. Jacobson, Chad S. Hummel, Karen N. Fred...
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Chapter 7 debtors Massoud and Susan Vasseli (“Vasselis”) appeal the Bankruptcy Appellate Panel’s (“BAP”) reversal of the bankruptcy court’s award of attorney’s fees to the Vasselis pursuant to 11 U.S.C. § 523(d) (1988). We have jurisdiction pursuant to 28 U.S.C. § 158(d) (1988). We review the decisions of the BAP de novo. In re Dewalt, 961 F.2d 848, 850 (9th Cir.1992); In re Two “S” Corp., ...
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3 F.3d 1263 AMERICAN INTERNATIONAL ENTERPRISES, INC., Cheker Karam,Plaintiffs-Appellants,v.FEDERAL DEPOSIT INSURANCE CORPORATION, as agency of theUnited States of America, as successor in interestto Federal Savings and Loan InsuranceCorporation, Defendant-Appellee. No. 91-56309. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 9, 1993.Decided Aug. 31, 1993. ...
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3 F.3d 1289 62 USLW 2164, 1993 Copr.L.Dec. P 27,139 ITSI TV PRODUCTIONS, INC., Plaintiff-Appellee,v.AGRICULTURAL ASSOCIATIONS, for the 2nd (also referred to asSan Joaquin Co Fair), 7th (also) referred to as Monterey CoFair), 9th (also referred to as Redwood Acres Fair), 15th(also referred to as Great Kern Co Fair), 19th (alsoreferred to as Santa Barbara National Horse and FlowerShow), 21st...
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Walt Disney Incorporated (“Disney”) brought this action for redetermination of the Commissioner of Internal Revenue’s assessment of a $453,197 federal income tax deficiency for Disney’s tax year ended January 28, 1982. Pursuant to Rule 91 of the Rules of Practice and Procedure of the United States Tax Court, the facts were stipulated by the parties, and the case was submitted to the Tax Court f...
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Joaquim Paulo Da Cruz, a lawful permanent resident of the United States and a native of Portugal, appeals the Board of Immigration Appeals’ (“BIA”) decision reversing the original order of the Immigration Judge and ordering Da Cruz deported. On appeal, Da Cruz claims that the BIA did not have jurisdiction in this case because the Immigration and Naturalization Service (“INS”) filed an untimely ...
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Terry Harvey appeals his conviction and sentence for bank robbery in violation of 18 U.S.C. § 2113(a). He claims the district court erred in: (1) finding police officers were conducting a valid investigatory stop at the time they detained and searched him; (2) finding the officers’ pat-down search within the permissible scope of a Terry frisk; and (3) failing to entertain Harvey’s collateral at...
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Ala Moana Pawn Shop appeals the district court’s judgment that, in dealing with George Burnett, Pawn Shop violated Hawaii law prohibiting deceptive trade practices and the federal Truth in Lending Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s judgment. We remand for determination of an appropriate award for Burnett’s attorney fees on appeal. I Pa...
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3 F.3d 1254 Lester ADAMS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.Lester ADAMS, Plaintiff-counter-defendant-Appellee,Jean D. Adams, individually and as Trustees of the 1984Living Trust, Plaintiff-counter-defendant-Appellee,v.UNITED STATES of America, Defendant-Appellant. Nos. 91-16762, 91-16840. United States Court of Appeals,Ninth Circuit. Argued and Sub...
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4 F.3d 723 23 Envtl. L. Rep. 21,357 UNITED STATES of America, Plaintiff-Appellee,v.Richard HEUER, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Eugene HOLDERNESS, Defendant-Appellant. Nos. 92-10545, 92-10546. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 11, 1993.Decided Aug. 31, 1993. N. Patrick Flanagan, III, Beckley, S...
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3 F.3d 1271 62 Fair Empl.Prac.Cas. 1414,62 Empl. Prac. Dec. P 42,534Olimpia TOVAR, Petitioner,v.UNITED STATES POSTAL SERVICE, Respondent. No. 91-70027. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 12, 1992.Decided Aug. 31, 1993. Stephanie Garrabrant, Brobeck, Phleger & Harrison, San Francisco, CA, for petitioner. Matthew M. Collette...
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*465 Opinion Penal Code section 872, subdivision (b), enacted as part of the “Crime Victims Justice Reform Act” (Proposition 115) in 1990, permits hearsay testimony at a preliminary hearing by a “law enforcement officer.” 1 At issue in this case is whether an investigator for the Franchise Tax Board qualifies as a “law enforcement officer” for purposes of section 872, ...
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*696 Opinion Statement of the Case and the Facts Defendant was convicted by jury of two counts of first degree murder. The jury found true the special circumstance of multiple murder. Defendant was also convicted of residential burglary. In addition, a firearm-use enhancement (Pen. Code, § 12022.5) was found true for each count. Defendant admitted the on-bail enhancement. (Pen. Code, § 1202...
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Opinion Michael Alan Sousa appeals from a judgment entered upon his plea of no contest to a charge of cultivation of marijuana (Health & Saf. Code, § 11358). He contends that the warrant issued for search of his residence was illegal because it was not based on an affidavit setting forth probable cause, and that the trial court therefore erred in denying his motion to suppress pursuant to...
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Opinion Fortino Perez Covarrubias appeals from the judgment (order granting probation) entered after he was convicted in a court trial of possessing cocaine. (Health & Saf. Code, § 11350, subd. (a).) He unsuccessfiilly contends: “The court erred in denying appellant participation in the diversion program.” Ventura Police Officer Raymond Harer, Jr., saw a vehicle driven by appellant. ...
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Opinion Plaintiff Gary G. Kelecheva timely appeals from a judgment of dismissal entered in favor of defendant Multivision Cable T.V. Corp. on *525 motion for summary judgment. The superior court ruled that each of the three causes of action alleged in plaintiff’s wrongful termination complaint was within the exclusive jurisdiction of the National Labor Relations Board (NLRB) ...
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Opinion Introduction Donald Wesley Plyler was convicted after jury trial of three counts of committing a lewd and lascivious act upon a child by force or duress (Pen. Code, § 288, subd. (b)). 1 He was acquitted of one count of rape with a foreign object by force. The trial court reduced the offenses to violations of section 288, subdivision (a) (lewd and lascivious act upo...
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Opinion Mark A. Wilton appeals from a judgment of dismissal after the demurrer of respondent Mountain Wood Homeowners Association, Inc., to his cross-complaint for slander of title was sustained without leave to amend. The trial court ruled that the publication of respondent’s liens on appellant’s property was protected by the litigation privilege under Civil Code section 47, subdivision ...
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*682 Opinion David A. Vaillette appeals from a judgment of dismissal of his breach of contract/bad faith/fraud action against Fireman’s Fund Insurance Company (Fireman’s Fund). The case was dismissed after the court sustained the insurer’s demurrer to Vaillette’s second amended complaint without leave to amend. The appeal presents the following issue: When an insurer pays a ...
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2 F.3d 989 Bob GEARY; Robert Silvestri; Dennis Mark; MelissaGundrun; Wayne Johnson; David Soule; Max Woods; PeterJohnson; Robert Gebert; Election Action; TerenceFaulkner; Sudi Trippet, Plaintiffs-Appellees,v.Louise RENNE, San Francisco City Attorney; Diane Feinstein;Jay Patterson; San Francisco Board of Supervisors; Cityand County of San Francisco; San Francisco Registrar ofVote...
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Opinion The petitioner, County of Los Angeles (herein the County), seeks extraordinary writ relief to compel the trial court to vacate its order requiring the County to generate and disclose to the real party in interest, J. Ara Kusar (herein Kusar), certain recorded information regarding every person arrested (for certain particular offenses) by two specifically named deputy sheriffs ove...
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3 F.3d 1297 72 A.F.T.R.2d 93-5845, 93-2 USTC P 50,520 Irwin KOFF; Darline Ruth Koff, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 91-16839. United States Court of Appeals,Ninth Circuit. Submitted Oct. 8, 1992*.Memorandum Disposition Oct. 23, 1992.Memorandum Withdrawn Sept. 1, 1993.Decided Sept. 1, 1993. Irwin Koff, Darline Ruth Koff, pr...
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The issue on appeal is whether Jeff Lie-bling, a non-signatory to a contract entered into by a company he later purchased, may invoke the contract’s arbitration clause. We find that Liebling may not invoke the contract’s arbitration clause because: (1) Plaintiffs1 are not estopped from claiming Liebling has no standing to compel arbitration; (2) Liebling was not a third party beneficiary or succes...
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4 F.3d 749 26 Fed.R.Serv.3d 1162 UNITED STATES of America, ex rel. James R. RICHARDS,Inspector General, U.S. Department of theInterior, Petitioner-Appellee,v.Lorenzo De LEON GUERRERO, Governor and Custodian of Recordsfor the Department of Finance, Commonwealth of theNorthern Mariana Islands, Respondent.Herman S. Sablan, et al., Applicants-Appellants.UNITED STATES of America, ex rel. James ...
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Opinion Petitioners Ada Solorzano, America Rodriguez and Dolores Morales (plaintiffs) filed suit against defendant and respondent Family Health Plan (FHP) alleging, inter alia, FHP engaged in unfair business practices and misleading advertising in the solicitation of subscribers to its senior plan. Plaintiffs brought suit on these theories in their individual capacities and on behalf of t...
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Opinion In this action for breach of an employment contract, a jury awarded a verdict of $81,401.70 for the employee, plaintiff and respondent Kenneth Evan Chyten, against defendants and appellants Lawrence & Howell Investments, a partnership, and its partners Arthur G. Lawrence and Lorraine Howell. Appellants appeal from the judgment entered on the verdict following denial of their motio...
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Opinion Plaintiff Stephen J. Caro appeals an order denying his motion for class certification of his lawsuit against defendants The Procter & Gamble Company (P&G), N.W. Ayer, Inc. (Ayer), and The Vons Companies, Inc. (Vons). Caro contends in denying class certification the superior court applied improper legal criteria, impermissibly weighed the lawsuit’s merits, and made unsupported find...
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Opinion Penal Code 1 section 1054.3 requires defense counsel to disclose to the prosecuting attorney the names of expert witnesses who are to *675 be called to testify at trial, and further requires the production of reports or statements prepared by the experts in connection with the case. This petition raises the question whether a trial judge, when convinced that a defense attorney plans...
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Opinion Ronald B. appeals from an order of the juvenile court declaring his minor children Kailee and Nicolas, aged two and one-half and one and one-half, respectively, to be dependents of the court under Welfare and Institutions Code section 300. He contends: “I. The court erred by refusing to strike the minor’s hearsay statements contained within the written social study report where the court l...
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*736 Opinion Defendants and appellants Board of Harbor Commissioners of the City of Long Beach and the City of Long Beach, a municipal corporation (jointly referred to as the Board), appeal from a judgment of the ' trial court ordering that a writ of mandate issue commanding the Board, due to noncompliance with the California Environmental Quality Act (CEQA), to: (1) vacate its c...
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ORDER Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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Reyes Emilio Ibarra appeals his conviction for violating 8 U.S.C. § 1326(b)(1), illegal reentry into the United States after having been previously deported. On appeal, Ibarra contends that the district court erred in precluding him from introducing evidence on the issue of alienage; that the district court should have allowed him to collaterally attack the legality of his prior deportation befor...
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Mary E. Whitaker and Jerry M. Soyland appeal their convictions for conspiracy and possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both defendants appeal their sentences. We have jurisdiction under 28 U.S.C. § 1291. We affirm Whitaker’s convictions and vacate and remand her sentence. We reverse Soyland’s convictions. *1314I On October 14, 1990, ...
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Emilia Pietromonaco (“Emilia”) appeals from the Tax Court’s decision that she was ineligible for relief from tax liability under the “innocent spouse” provision, 26 U.S.C. § 6013(e) (1990). 1 Emilia contends that she was “innocent” within the meaning of the provision and that she should have been shielded from liability arising out of a tax deficiency. That deficiency was the result of income o...
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The United States appeals from a sentence imposed upon Sean Robert Mulloy after a jury convicted him of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court refused to enhance Mulloy’s sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). It found after an evidentiary hear *1339 ing that two of the four prior violent felony convicti...
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Andre Johnson, a California prisoner, appeals from the district court’s judgment that dismissed his petition for a writ of habeas corpus. Johnson alleges that the state prosecutor excused an African-American woman from the venire on the basis of her race, thereby violating the Equal Protection Clause as interpreted by the Supreme Court in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d...
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5 Cal.4th 1067 (1993) 856 P.2d 1134 22 Cal. Rptr.2d 278 THE PEOPLE, Plaintiff and Respondent, v. MARC EDWARD BROUSSARD, Defendant and Appellant. Docket No. S024399. Supreme Court of California. September 2, 1993. *1068 COUNSEL Jim Fahey, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Jo...
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Opinion This consolidated appeal concerns the denial of two motions to compel arbitration made in the same case. We hold that the plaintiffs’ allegations of fraud are sufficient to support the denial of the motions, and that the denial does not conflict with Prima Paint v. Flood & Conklin (1967) 388 U.S. 395 [18 L.Ed.2d 1270, 87 S.Ct. 1801], Facts Robert an...
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Opinion We granted review to consider whether the California Fair Employment and Housing Act (FEHA or Act) (Gov. Code, § 12900 et seq.) prohibits employment discrimination on the basis of a person’s weight. 1 We conclude that weight may qualify as a protected “handicap” or “disability” within the meaning of the FEHA if medical evidence demonstrates that it results from a physio...
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*784 Opinion Appellants Richard and Debbie Frazer (appellants) timely appeal from the denial of their petition for a writ of mandate and for declaratory relief against respondents Dixon Unified School District and its governing board (Board) and superintendent, J. Gerry Laird (Superintendent) (collectively, hereafter respondents or the District), which was originally filed in Solano Superior ...
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Kenneth Alan Clagett appeals pro se the decision of the district court denying his Fed.R.Crim.P. 41(e) motion for return of $14,700 seized from the house where Clagett was arrested in 1989. The district court denied the motion on the ground that the money was administratively forfeited to the United States prior to Clagett’s motion. We reverse and remand for further proceedings. I. In...
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Howard Weldon Martin appeals his jury-convictions for conspiring to possess more than 100 grams of methamphetamine with intent to distribute, in violation of 21 U.S.C. §§ 841(a) and 846, and for aiding and abetting the possession of said methamphetamine with intent to distribute,- in violation of 18 U.S.C. § 2 and 21 U.S.C. § 841(a). Martin argues duplicitous indictment, insufficiency of the ev...
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3 F.3d 1348 Elmer H. SWANSON; Livingston Silver, Inc., Plaintiffs-Appellants,v.Bruce BABBITT, Secretary of the United States Department ofthe Interior; Mike Espy, Secretary of the UnitedStates Department of Agriculture,* Defendants-Appellees. No. 91-36341. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 9, 1993.Decided Sept. 3, 1993. John B. Ing...
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MEMORANDUM OF DECISION AND ORDER This case is before the court on plaintiffs and defendants’ cross-motions for summary judgment on plaintiffs First and Fifth Amendment challenges to his discharge from the United States Navy. I. FACTUAL AND PROCEDURAL BACKGROUND. The. undisputed facts relevant to these summary judgment motions are as follows. Plaintiff enlisted in the Navy on...
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Opinion We modify conditions of probation to strike the restitution order, and affirm the judgment as modified. Background Defendant pled guilty to embezzlement from her employer, a small preschool/kindergarten, owned by two partners, Bea Elliott and Linda Huss. At a hearing to determine restitution, the amount of the loss was set at over $47,000. Defendant’s father, giving her an advance o...
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OPINION Defendants’ motions for judgment as a matter of law, for remittitur and/or for a new trial, to amend the judgment, and for relief from operation of judgment having come before the Court, the Court having considered the briefs and having had the benefit of oral argument, grants in part the motion for judgment as a matter of law, and orders the entry of judgment for defendant John F...
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4 F.3d 772 27 Fed.R.Serv.3d 373 Robert Burdett BUTLER, Plaintiff-Appellant,v.Peggy LEEN, Individually and in her capacity as PublicDefender; Julie Goldman-Wilson, in her capacityas Representative of Goldman Estate;The Estate of Paul S. Goldman,Defendants-Appellees. No. 93-15362. United States Court of Appeals,Ninth Circuit. Submitted Aug. 2, 1993*.Decided Sept. 7, 1993. ...
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Imperial Irrigation District (“Irrigation District”) petitions for review of a “Finding of Imminent and Substantial Endangerment to the Health of Persons and Administrative Order” entered against it by the Environmental Protection Agency (“EPA”) on December 22, 1992. The EPA invoked its emergency powers to issue the order, pursuant to section 1431(a) of the Safe Drinking Water Act of 1974 (“SDWA”...
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Sharon Legail Welch appeals her criminal convictions on the basis that the district court erroneously denied her motion to suppress incriminating evidence seized from her purse. We agree that the search of Welch’s purse violated her Fourth Amendment rights and therefore reverse and remand. I. Background Welch and her co-defendant David Anthony McGee were gambling at the Circus Circus Hotel ...
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I. On September 27,1991, respondent James B. Busey (Administrator) issued an emergency order revoking petitioner Robert Albert Tur’s Commercial Pilot Certificate on the basis of a finding that petitioner lacked the qualifications required of a helicopter pilot. The order charged petitioner with five counts of violations of Federal Aviation Regulations. Tur appealed this order by notice dat...
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5 F.3d 1229 38 Fed. R. Evid. Serv. 1264 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.Victor Manuel Lee ARMIJO, Defendant-Appellant-Cross-Appellee. Nos. 90-30408 and 91-30034. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 7, 1993.Decided Sept. 7, 1993. Charles S. Dorn and Patrick K. Stiley, Stiley & Kodis, Spokane, WA, fo...
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OPINION AND ORDER Plaintiff, Richard Lyster, moves to remand this case to the Superior Court for the State of California in and for the County of San Francisco. Defendants First Nationwide Bank, First Nationwide Financial Corporation, Ford Motor Company (“Ford”), and Lucile Reid (collectively “defendants”) move to dismiss several causes of action in the complaint they removed to this Cour...
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18 Cal.App.4th 856 (1993) 22 Cal. Rptr.2d 659 WILBUR F. LITTLEFIELD, as Public Defender, etc., Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; EDDIE CLYDE JACKSON, Real Party in Interest. Docket No. B075503. Court of Appeals of California, Second District, Division Four. September 7, 1993. *857 COUNSEL Wilbur F. Littlefield, Public Defender, Karen Gee and John Hamilton Scott,...
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Opinion An attorney was sued for allowing the statute of limitations to expire on his client’s medical malpractice claim. A jury found the attorney liable for malpractice, and assessed damages for negligent infliction of emotional distress against him as well. On appeal, the attorney contends that the suit against him is barred by the statute of limitations. We conclude that the action was ti...
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Opinion Nielsen Construction Company (Nielsen), a general contractor on a construction project, appeals a judgment of dismissal following the sustaining of a demurrer on its action claiming a subcontractor, International Iron Products (International), was contractually obligated to defend and to indemnify Nielsen from damages and injuries suffered by an International employee on the const...
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AMENDED ORDER On June 23,1993, the following motions by defendants Qiang Jing Ma (“Ma”) and Sam Tong Chan (“Chan”) were scheduled to be heard by the Court: (1) Ma’s motion to suppress his post-Miranda statements; (2) Chan’s motion for discovery regarding special agent Stephen Tse; (3) Chan’s motion to suppress evidence; and (4) Chan’s motion to sever trials. Steven F. Gruel, Assistant U.S. Atto...
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Modesto Delgado was convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848(c)(2), conspiracy to distribute cocaine, unlawful use of a communication facility, and distribution of cocaine. We reverse Delgado’s conviction of engaging in a continuing criminal enterprise, but affirm the convictions on the other counts. The evidence was insufficient to establish that D...
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4 F.3d 792 UNITED STATES of America, Plaintiff-Appellant,v.Jesse Clarence MILLER, aka: J.C. Miller; Robert SebastianTolmaire; John Leo Edner; Roger Raul Garcia;Stephen Wayne Polak; Edward DanielJamison, Defendants-Appellees. No. 92-50236. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 13, 1993.Decided Sept. 8, 1993. Michael W. Emmick, Asst. ...
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OVERVIEW A jury convicted Arik Ben Bachsian of one count of possession, of stolen goods from interstate commerce, in violation of 18 U.S.C. § 659. Bachsian was sentenced to a term of twelve months 1 and ordered to pay restitution in the amount of $23,243.53. Bachsian appeals his conviction on the grounds that the district court erred in admitting certain documents under Federal Rule of Eviden...
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4 F.3d 777 CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellee,v.FIBREBOARD CORPORATION, Defendant-Appellee,v.PACIFIC INDEMNITY CO., Applicant in Intervention-Appellant.CONTINENTAL CASUALTY COMPANY, Plaintiff-Appellant,v.FIBREBOARD CORPORATION, Defendant-Appellee. Nos. 90-16519, 91-15331. United States Court of Appeals,Ninth Circuit. Sept. 8, 1993. Donald T. Ramsey, David M...
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Opinion I. Introduction This is an appeal from the dismissal of three consolidated medical malpractice actions brought by parents, individually, and on behalf of their minor daughter, alleging damages for negligence and for wrongful life arising from the birth of a child with neural tube defects, commonly known *873 as spina bifida. 1 Plaintiffs and appellants Raksha and Naran Gami (the G...
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Opinion Kathy Rine (wife) appeals from a post judgment order modifying child support and awarding attorney fees. On appeal, she contends the trial court abused its discretion in reducing the support obligation of the child’s father, Lance Rine (husband), and in ordering inadequate attorney fees. Wife also claims the court erred in failing to set forth the mandatory *955 findi...
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Opinion We granted review in this matter to determine whether a municipal court has standing to initiate an action in mandamus (Code Civ. Proc., § 1085) against a superior court to set aside a ruling of the superior court, and, if so, whether a municipal court’s practice of using court commissioners to make the probable cause determination required by County of Riverside v. McLaughlin (1991) 500 U...
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Opinion Appellant, Roy Hardison (hereafter appellant), injured in an automobile accident, appeals from a defense verdict. He contends the verdict is not supported by the evidence. We reverse. *25 Facts and Procedural History On January 29, 1986, appellant was the middle passenger in a pickup truck driven by Danny Ray Smith. The truck was traveling north on Old River Roa...
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Opinion Cynthia Laughner appeals from an order of dismissal following the trial court’s sustaining of a demurrer without leave to amend to the second cause of action of the complaint for personal injuries filed by her on behalf of her minor son and herself August 27, 1990. She contends that the trial court erred in ruling that she, as a parent, could not state a separate and distinct cause of a...
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5 Cal.4th 1082 (1993) 858 P.2d 568 23 Cal. Rptr.2d 101 GERALD D. MIRKIN et al., Plaintiffs and Appellants, v. FRED W. WASSERMAN et al., Defendants and Respondents. Docket No. S020465. Supreme Court of California. September 9, 1993. *1086 COUNSEL Milberg, Weiss, Bershad, Specthrie & Lerach, William S. Lerach, Erick A. Isaacson, Blake M. Harper, Helen J. Hodges, Leonard B. Simon, Barrack, Rodos...
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4 F.3d 815 UNITED STATES of America, Plaintiff-Appellee,v.Alfonso MENDOZA-FERNANDEZ, Defendant-Appellant. No. 92-50761. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 15, 1993.Decided Sept. 10, 1993. Patrick N. Smith, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant. Edward B. Moreton, Jr., Asst. U.S. Atty., Los Ange...
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OVERVIEW In their complaint filed in the district court, Rosemary Weissieh and her three children (“the Weissichs”) asserted two claims against the United States. First; they alleged that the Bureau of Alcohol, Tobacco and Firearms (“ATF”) and the United States Probation Service (“USPS”) negligently failed to warn William Weissieh of an impending threat posed by Malcolm Schlette, a federal prob...
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4 F.3d 805 UNITED STATES of America, Plaintiff,v.PRESIDIO INVESTMENTS, LTD., Defendant.Edward SANDQUIST, Defendant-Appellee,v.Janet BLAIR, Applicant in Intervention-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.PRESIDIO INVESTMENTS, LTD., Defendant.Edward SANDQUIST, Defendant-Appellee,v.Janet BLAIR, Applicant in Intervention-Appellant. Nos. 92-15176, 92-15254. United States ...
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Opinion Defendant Ferdinand Gustave Schaefer appeals from the judgment entered on his negotiated guilty plea to six counts of robbery and his admission that the Penal Code section 12022.5, subdivision (a) enhancement as to each count and the three Penal Code section 667, subdivision (a) prior felony convictions were true. Schaefer’s sole contention is that he is similarly situated to the defend...
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3 F.3d 1584 42 Soc.Sec.Rep.Ser. 222 Edward E. GRAY, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 91-55380. United States Court of Appeals,Ninth Circuit. Sept. 13, 1993. Steven L. Whiteside, Santa Barbara, CA, for plaintiff-appellant. Michael R. Power, Asst. Regional Counsel, Dept. of Health and Human Services, San Franci...
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A manufacturer seeks a preliminary injunction barring a rival company from producing similar looking audio speakers. The district court denied the preliminary injunction and, for the reasons stated below, we affirm. I. BACKGROUND International Jensen, Inc., the Appellant, manufactures car and truck loudspeakers. The speakers are covered by a detachable metallic grille; Jensen’s name a...
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*922 Opinion Plaintiff and petitioner Teogenes Rodriguez Palay, a minor, by and through his mother Inocente Palay, as guardian ad litem, and petitioner Inocente Palay, individually, seek a writ of mandate to compel respondent superior court to vacate an order made during the course of discovery requiring production of Inocente Palay’s medical records relating to prenatal care at ...
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18 Cal.App.4th 981 (1993) 22 Cal. Rptr.2d 852 CHARLES WASHINGTON et al., Plaintiffs and Appellants, v. BOARD OF SUPERVISORS OF SAN DIEGO COUNTY et al., Defendants and Respondents. Docket No. D017859. Court of Appeals of California, Fourth District, Division One. September 13, 1993. *982 COUNSEL Rosemary Bishop, Carol Ratsamy Bracy, Anson B. Levitan, Gregory E. Knoll, Robert D. Newman and Richard ...
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Opinion The Regents of the University of California (Regents) appeal from an order of the probate court which rejected their claim to the remainder of a testamentary trust. We will reverse. We will *940 apply the common law preference for early vesting and hold that, absent evidence of the testator’s intent to the contrary, the identity of “heirs” entitled to trust assets mus...
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5 Cal.4th 1142 (1993) 857 P.2d 1163 22 Cal. Rptr.2d 753 THE PEOPLE, Plaintiff and Respondent, v. MONROE JONES, Defendant and Appellant. Docket No. S027672. Supreme Court of California. September 13, 1993. *1144 COUNSEL Scott F. Kauffman, under appointment by the Supreme Court, for Defendant and Appellant. Kathleen Kahn and J. Bradley O'Connell as Amici Curiae on behalf of Defendant and Appellant....
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This action was brought by present and former employees of General Dynamics (“Re-lators”) under the qui tam provisions of the False Claims Act (“FCA”), 31 U.S.C. §§ 3729-3732. General Dynamics Corporation (“General Dynamics”) challenges the district court’s denial of its motion to dismiss under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Three issues have been certified for appeal. T...
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No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance____ Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681(a). The major question raised by the cross-motions for summary judgment now before t...
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*1011 Opinion I. Introduction In this case we hold that the provisions of nine San Jose redevelopment plans do not prohibit indebtedness extending beyond the plans’ expiration dates, and thus the projects may be financed with bonds which mature after those expiration dates. The County of Santa Clara (County) and the Santa Clara Unified School District (District) filed s...
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Opinion The law firm of Lasky, Haas, Cohler & Munter (appellant) appeals from an order imposing monetary sanctions against it in connection with its representation of Aerojet-General Corporation and Cordova Chemical Company (collectively, Aerojet or plaintiffs) in the underlying action. The sanction order is based on the conduct of Scott DeVries, an attorney who at all times relevant to t...
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Charles Compton appeals his conviction of attempted aircraft piracy in violation of 49 U.S.C.App. § 1472® and of interference with a fight crew in violation of 49 U.S.C.App. § 1472®. Cases construing these statutory *359 provisions are few. The offenses involved are great, and of much interest to air travelers. No prior published case in this circuit has addressed the crime of attempted aircraf...
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4 F.3d 843 UNITED STATES of America, Plaintiff-Appellee,v.Joel Victor ANGULO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Fidel Barragan VARGAS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Octavio Galvez ANGULO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Jaime LIMON, Defendant-Appellant. Nos. 92-10178, 92-10183, 92-10221...
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5 F.3d 360 Jaime Salvador FLORES-ARELLANO, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 92-70129. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 16, 1993.Decided Sept. 15, 1993. Sonia Saldivar (law student intern argued) and Lillia S. Velasquez, San Diego, CA, for petitioner. David M. McConnell and Karen Fletcher Tor...
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4 F.3d 832 23 Envtl. L. Rep. 21,520 NATIONAL AUDUBON SOCIETY; Oregon Natural Resources Council,Inc.; Lane County Audubon Society; Friends ofGreensprings; Headwaters; Soda Mountain WildernessCouncil; Sky Lakes Wilderness Committee, Plaintiffs-Appellants,v.U.S. FOREST SERVICE, Defendant-Appellee,andBill Christie, Jr.; Huffman and Wright Logging Company,Defendant-Intervenors-Appellees....
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OPINION I The bankruptcy court held that actual disbursement of receipts is a prerequisite to allowance and payment of interim fees to a Chapter 11 trustee. We REVERSE and REMAND. *895 II FACTS On January 16, 1991, J. Wayne and Jean M. Stewart (“Debtors”) filed a voluntary petition under Chapter 11 of the Bankruptcy Code (“Code”). On December 18, 199...
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Opinion A jury convicted appellant of kidnapping (Pen. Code, 1 § 207; count I; victim Melynda Moncrief), two counts of assault with a firearm (§ 245, subd. (a)(2); count II, victim Melisa Moncrief; count III, victim Penne Moncrief) and found true three firearm use (§ 12022.5) allegations. Three state prison prior felony allegations (§ 667.5) were bifurcated and admitted. Appell...
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4 F.3d 1467 85 Ed. Law Rep. 724 OJAI UNIFIED SCHOOL DISTRICT; Ventura County Superintendentof Schools, Plaintiffs-Appellees,v.Bion JACKSON, a minor; Elizabeth Jackson; Richard W.Jackson, Defendants-Appellants,California Special Education Hearing Office, Raymond C.Brown; California State Dept. of Education; BillHonig; State Superintendent of PublicInstruction; State ofCalifornia, Def...
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Opinion Petitioner Seibert Security Services, Inc. (hereinafter Seibert), a defendant in the action below, seeks reversal of an order denying its motion for summary judgment and/or adjudication of issues. (Code Civ. Proc., § 437c.) Seibert’s contention is that it established, as a matter of law, a complete defense in that plaintiff and real party in interest John Migailo’s action is barred by the...
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Opinion Upon revocation of appellant’s probation, he was sentenced to the middle term of three years for aggravated assault (Pen. Code, § 245, subd. (a)(1)).1 He was awarded 217 days of presentence custody credits and 108 days of conduct credits. On appeal, he challenges only the award of credits. First, he contends that the trial court miscalculated his presentence custody credits, due primarily ...
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The United States Supreme Court has affirmed the judgment of this court published at 959 F.2d 853. The case is remanded to the district court for further proceedings consistent with the decision of the Supreme Court in Helling, et al. v. McKinney, — U.S. —, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). ...
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Beverley pleaded guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). The presentence report determined that Beverley had two prior felony convictions qualifying him as a career offender: (1) a 1985 conviction for selling marijuana; and (2) a 1989 robbery conviction. Prior to sentencing, Beverley filed a “Position Re: Sentencing” contesting the validity of his 1985 marijuana ...
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William Roberts (“Roberts”) appeals pro se the denial of his 28 U.S.C. § 2255 motion. The primary issue is whether the district court violated Fed.R.Crim.P. 11 when it failed to advise Roberts of a term of supervised release at his plea hearing. We hold it did and vacate Roberts’s sentence and remand to the district court with instructions. I. FACTS AND PRIOR PROCEEDINGS Roberts owned Gemin...
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dissenting: I respectfully dissent. It seems to me that the trial court’s determination that the September 21, 1991 letter supports the finding of an “account stated.” I do not believe that the finding is clearly erroneous. There is absolutely no evidence of a “mistake” by any “party” to the transaction. Although the amount of interest could have been calculated differently, there is no evidence o...
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ORDER Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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Opinion Defendant and appellant Donald Lernard Proctor appeals from a judgment after a jury trial in which he was convicted of conspiracy to defraud another of property by theft (Pen. Code, § 182, subd. (a)(4)), a felony. He contends the confidence scheme for which he was convicted, the so-called “Jamaican Switch,” should have been charged under the special statute criminalizing confidenc...
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Opinion I. Babak S., a minor, appeals from an order committing him to the California Youth Authority after the juvenile court sustained a petition filed pursuant to Welfare and Institutions Code 1 section 777, alleging that the minor had violated the conditions of his probation by living in the United States with his parents, and by associating with a known probationer or gang member. On ap...
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Carlissa Churchill, personal administrator of the estate of Patrick Churchill, and Dale Carlough (“Claimants”) appeal from the order granting exoneration of the limitation bond posted by vessel owner William McLinn in this wrongful death and personal injury action. The Claimants contend the district court erred in granting the motion for exoneration, notwithstanding the fact the vessel owner an...
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Appellant Alaska Cargo Transport, Inc. (“Alaska Cargo”) appeals the district court’s dismissal of its complaint with prejudice as to federal claims and without prejudice as to state claims. The court held that appellee Alaska Railroad Corp. (“ARRC”) is immune from suit under the Eleventh Amendment. We have jurisdiction over the timely filed appeal pursuant to 28 U.S.C. § 1291 (1988). We affirm. ...
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5 F.3d 391 26 Fed.R.Serv.3d 1406 Heather C. HINTON, Plaintiff-Appellant,v.PACIFIC ENTERPRISES, formerly known as Pacific LightingCorporation, as Employer, Plan Administrator, Plan Sponsorand Plan Fiduciary, Pacific Lighting Corporation DisabilityBenefit Plan, Pacific Lighting Corporation Medical Plan,Pacific Lighting Corporation Dental Plan, Pacific LightingCorporation Pension Plan, Pacifi...
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James Richard Scarce, a Ph.D. student at the Washington State University, refused to answer certain questions propounded to him by a federal grand jury on the ground that he was entitled to a “scholar’s privilege” under the First Amendment and the common law, akin to that of a reporter. On April 6, 1993, the district court rejected this claim and held Scarce in civil contempt pursuant to 28 U.S...
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ORDER DENYING THE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING THE DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT The plaintiff appeals the Secretary’s denial of her application for disability benefits. Both the plaintiff and the defendant move for summary judgment. Because the court finds the denial of benefits did not violate substantive or procedural due process, the court grants the def...
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SUPERSEDING ORDER This matter came before the Court on June 21,1993 on Plaintiffs motion to remand to state court. After hearing argument from counsel, we ordered Mr. Gerhard Stoll, counsel for Defendant Dianne Dunne, to provide additional information to the Court. On August 2, 1993, after reviewing all available information and carefully considering all arguments presented, we granted Pl...
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Wood-Ivey Systems Corporation appeals the decision of the United States Claims Court1 dismissing its claim for failure to file a timely appeal. We vacate the dismissal, and remand for determination of the merits of the claim. Background Wood-Ivey and the Department of the Navy entered into a contract for a shipboard aircraft altitude positioning system. Upon completion of the contract, Wood-Ivey...
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Jerry Don Mainard appeals his sentence under the Sentencing Guidelines for conspiracy and aiding and abetting the attempt to manufacture methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) & 846 and 18 U.S.C. § 2. The only issue we address is whether the district court erred by enhancing Mai-nard’s offense level for the use of special skills in imposing a sentence of 188 months. 1 ...
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The question is whether the district court has jurisdiction under the False Claims Act (the Act), 31 U.S.C. § 3729 et seq., over claims a qui tam plaintiff added to his complaint by amendment based on information disclosed by the United States in a criminal indictment returned after the plaintiff filed the original complaint. I. Boeing Corporation selected Northrop Corporat...
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The United States appeals the district court’s apportionment of liability among the parties involved in a 1986 midair collision between an Aeromexico jetliner and a single-engine Piper aircraft over Cerritos, California. The government argues that the district court erred by failing to apply Cal.Evid.Code § 669(a) and by improperly articulating the standard of vigilance for pilots under 14 C.F....
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OPINION Susan Brooke appeals her conviction on charges of conspiracy, manufacture of a destructive device (26 U.S.C. § 5861(f)), possession of a destructive device (26 U.S.C. § 5861(d)), and malicious damage to property resulting in personal injury (18 U.S.C. § 844(i)). At trial, the prosecution introduced extensive testimony that Brooke falsely told her friends and acquaintances that she...
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Opinion Defendant entered a plea of guilty to a charge of burglary (Pen. Code, § 459), in return for a promise to strike two 5-year enhancement allegations charged under Penal Code section 667. 1 It was also agreed that he would receive the upper term of six years, but that it would run concurrently with a four-year sentence recently imposed in a separate case, with full credits. On this ap...
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AMENDED ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS 1 Petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. Section 2254 alleging ineffective assistance of counsel at a pre-trial stage of his state court criminal proceeding. For the reasons stated herein, the petition for writ of habeas corpus is GRANTED. I. Background The facts of the underlyin...
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We are faced with the question whether under California law a husband’s occupation of his family residence with his second wife *419can create a duty in a bona fide purchaser for value or a bankruptcy trustee to inquire as to whether his former wife still retains the ownership interest in that property that appears of record. Guided by reality, our answer is yes. I. Factual and Procedural Backgrou...
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Kong Yin Chu (a.k.a. Chu Kong Yin) appeals his conviction for making a material false statement under oath on an immigration application in violation of 18 U.S.C. § 1546. We affirm. BACKGROUND On November 15, 1983, Chu completed an Application for Status as a Permanent Resident at the offices of the Immigration and Naturalization Service. That application included the following questi...
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The state of Oregon appeals the district court’s partial summary judgment in favor of Medicaid Nursing Homes in the nursing homes’ 42 U.S.C. § 1983 action challenging the state’s reclassification of nursing services into rate categories receiving lower reimbursement under the state’s Medicaid plan (No. 91-36075). The state also asks that this court vacate the district court’s award of attorney’s f...
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5 F.3d 428 FEDERAL INSURANCE COMPANY, Plaintiff,v.PUEBLO INTERNATIONAL INSURANCE, Defendant,American Savings Bank, Defendant-Cross-Claimant-Appellee,Citibank (New York State), Defendant-Cross-Claimant-Appellant. No. 91-55637. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 9, 1993.Decided Sept. 21, 1993. Catherine D. Meyer, Pillsbury, Madison &...
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5 F.3d 423 72 A.F.T.R.2d 93-6080, 62 USLW 2230, 93-2USTC P 50,634,29 Collier Bankr.Cas.2d 1039,Bankr. L. Rep. P 75,444 In re Beverly Dell WEST, Debtor.Beverly Dell WEST, Appellant,v.UNITED STATES of America, Appellee.In re Robert Wesley WORTHEN, Debtor.Robert Wesley WORTHEN, Appellant,v.UNITED STATES of America, Appellee. Nos. 92-35286, 92-35293. United States Court of Appeals,Ni...
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4 F.3d 1490 RESOLUTION TRUST CORPORATION, in its capacity as Receiver ofMidwest Federal Savings Bank of Minot; et al.,Counter-Defendants/Appellants,v.MIDWEST FEDERAL SAVINGS BANK OF MINOT, a federally charteredsavings association, as Trustee; Centennial Estates, Inc.;La Plata Investors; John F. Nolan; Gregory M. Beck;Gerald G. Wilson; TKMB Associates; John S. Tighe; WilliamD. McBrearty;...
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Opinion The County of Lake (County) appeals from a child support order that set respondent Gerald Anthony Antoni’s support payment obligation at less than file presumptive amount under Civil Code section 4721. 1 The County contends that the trial court erred by the way in which it considered Antoni’s support of his stepdaughter and his substantial consumer debt monthly payments...
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Opinion A jury found that the City of Oakland, its fire chief, and its city manager (collectively appellants) had wrongly refused to grant merit promotions to John J. Lucich, Jr., James R. Catalano, and Bob B. Means II (respondent firefighters). The jury awarded the three respondent firefighters a total of $650,000 in backpay and other damages. Appellants contend the judgment must be reve...
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DECISION AND ORDER RE: PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT On June 10, 1992, Plaintiff filed this complaint alleging breach of a written guaranty contract, requesting judicial foreclosure of a mortgage on real property and a deficiency judgment. In answer, the Defendants raised, as an affirmative defense, expiration of the six year statute of limitations set forth in 28 U.S.C. § 2415(...
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6 F.3d 581 72 A.F.T.R.2d 93-6103, 93-2 USTC P 50,635 In re Linda Jane STONE, dba The Broiler; aka Linda JaneDuviek Stone; aka Linda Jane Haskins, Debtor.UNITED STATES of America, Appellant,v.Linda Jane STONE; Alaska Hotel & Restaurant Trust Funds; K& L Distributors, Inc.; C.R. Kennelly; State ofAlaska; Fairbanks North Star Borough, Appellees. No. 91-36338. United St...
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Appellants Netters and Freeman were indicted as a result of an FBI sting operation aimed at identifying corruption in the California state legislature. Netters was convicted of one count of violating RICO, three counts of extortion in violation of the Hobbs Act, four counts of money laundering, and one count of subscribing to a false tax return. He challenges all of his convictions, except subs...
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Opinion In this workers’ compensation proceeding, we granted the applicant’s petition for a writ of review to decide the question *1182 whether California Labor Code section 3208.3, subdivision (d), as applied to petitioner, violates her constitutional rights to equal protection of the law and due process. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7, subd. (a).) 1 Labor Code secti...
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6 F.3d 1347 David B. HARRISON; Penny L. Harrison; Timothy E. Harrison;Gary D. Harrison; Bruce A. Harrison; Donald R. Harrison;Estate of Louis R. Harrison, Jr.; Heirs of Louis R.Harrison and Owners of Native Allotment No. 053702,Plaintiffs-Appellants,v.Walter J. HICKEL, Governor; State of Alaska; John Glass,Lt.; Dan Lowden, Sgt.; Nova RiverRunners, Inc.; RandallHobbs; Hobbs Industrie...
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Melecio Aldana-Ortiz appeals his 33-month sentence following a conditional guilty plea to importation of marijuana in violation of 21 U.S.C. §§ 952, 960. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Aldana-Ortiz’s counsel submitted a supplemental brief which identifies one possible issue for review: whether the district court erred by failing to award ...
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This is another sentencing appeal. John Salazar, while an inspector at a port of entry from Mexico,- allowed vans containing 1,615 kilograms of cocaine to pass through his inspection lane. He argues that his sentence should not have been computed on the cocaine volume for the reason that he agreed to favor importation of marijuana, but not cocaine. We reject his argument and affirm. Salazar ple...
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Ronald Liquori Sr. (“Liquori”) was convicted of conspiracy to manufacture and possess methamphetamine with intent to distribute and of manufacture and attempted manufacture of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(a)(1). 1 The district court found that Liquori had two prior convictions for felony drug offenses and sentenced him to a mandatory term of life imprisonm...
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5 F.3d 431 62 USLW 2215, 23 Envtl. L. Rep. 21,503 LOUISIANA-PACIFIC CORPORATION, a Delaware corporation,Plaintiff-Appellee,v.ASARCO, INC., a New Jersey corporation, Defendant-Appellant,v.INDUSTRIAL MINERAL PRODUCTS, INC., a dissolved Washingtoncorporation, Third-Party Defendant-Appellee. No. 91-36170. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 7, 1...
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Having entered a conditional plea of guilty to violating the Anti-Apartheid Act, Pieter van den Berg appeals the denial of his motion to dismiss the prosecution on the ground of abatement. Because we conclude that the General Savings Statute applies to the Act, we affirm. I. Facts and Proceedings Over President Reagan’s veto, Congress passed the Comprehensive Anti-Apartheid Ac...
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6 F.3d 1332 37 ERC 1345, 62 USLW 2188, 23 Envtl.L. Rep. 21,504 LOUISIANA-PACIFIC CORPORATION; Port of Tacoma, Plaintiffs-Appellees,v.ASARCO INCORPORATED, Defendant-Third-Party Plaintiff-Appellant,v.William FJETLAND; B & L Trucking and Construction Co.,Inc.; Industrial Mineral Products, Inc.; Murray PacificCorporation; Portac, Inc.; Cascade Timber Company;Executive Bark Inc.; Was...
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4 F.3d 1505 PEOPLE of the STATE OF CALIFORNIA, et al., Petitioners,New York Telephone Company and New England TelephoneCompanies (The "Nynex Telephone Companies"), etal., Intervenors,v.FEDERAL COMMUNICATIONS COMMISSION, et al., and United Statesof America, Respondents.MCI TELECOMMUNICATIONS CORPORATION, Petitioner,National Telephone Cooperative Association, Intervenor,v.FEDERAL COMMUNICATIONS ...
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Opinion This appeal by Robert and Audrey Parks (appellants) is from judgment in an eminent domain proceeding initiated by the Glendale Redevelopment Agency (Agency). The court below denied appellants’ motion for litigation costs, for interest on a deposit of funds made prior to possession and their challenge to the constitutionality of Code of Civil Procedure section 1268.350, setting the...
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Opinion In this case we are asked to interpret recent amendments to the Subdivision Map Act. (Gov. Code, § 66410 et seq.) 1 In 1985 the Legislature amended section 66452.6, subdivision (a) to grant automatic 36-month extensions to file final maps provided a developer, who is required as a condition of approval of a tentative map to spend large sums of money on off site improvem...
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I. Background In 1989 Sergio and Rosemary Ter an were arrested for possession of marijuana with intent to distribute. Sergio’s parole was revoked and he was sent back to a federal penitentiary. However, Rosemary agreed in writing to “work off’ the charges by acting as an informant for the Glendale (Arizona) Police Department. In prison, Sergio met appellant James Kearns, who was serving a lif...
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OPINION OVERVIEW The Arizona Department of Corrections appeals an order granting partial summary judgment in favor of a certified plaintiff class of Arizona state prisoners and enjoining the Department from (a) prohibiting contact vis*1518its between inmates and their attorneys, and (b) denying food-service jobs to HIV-positive1 inmates. The inmates brought this action under 42 U.S.C. § 1983 (198...
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Opinion Kong L. appeals from the order terminating her parental rights (Welf. & Inst. Code, § 366.26) as to her daughter Tracy X. She claims the trial court improperly excluded evidence on whether the department of *1462social services (DSS or the department) complied with Civil Code1 section 222.35 et seq. regarding racial and ethnic placement preferences in adoption matters. Upon review, it app...
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*1471 Opinion In the published portion of this opinion we hold that the trial court properly admitted a California Law Enforcement Telecommunications System (CLETS) computer printout of appellant’s criminal information history (rap sheet) under the official records exception to the hearsay rule (Evid. Code, § 1280) as evidence that appellant served two prior prison terms for which his sentenc...
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Opinion This is an appeal from a summary judgment in favor of the defendant in a personal injury lawsuit. The facts of the case are not in dispute, and we state them as reflected in the moving papers in the summary judgment motion, and as set forth in the appellate briefs of both appellant and respondent. The issue is whether the negligent failure of defendant, Lisa Loo (Loo), to war...
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I OVERVIEW John Robert Powell (Powell) appeals the sentence imposed as a result of his guilty *612 plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). He contends that the district court erred in applying the official victim enhancement which added three points to his base offense level. Because we conclude that the district court correctly applied the off...
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Raymond Joseph Johns, Jr., was indicted for and pled guilty to armed bank robbery. 18 U.S.C. § 2113(a) & (d). At sentencing the district judge determined that an amendment to the Sentencing Guidelines precluded her from giving Johns a downward departure based upon his asserted youthful lack of guidance. Johns claims that application of the amendment to him violated the Ex Post Facto ...
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5 F.3d 1255 26 Fed.R.Serv.3d 1428, 85 Ed. Law Rep. 1070,Prod.Liab.Rep.(CCH)P 13,640 SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant,v.ACandS, INC., a Pennsylvania corporation, et al.; E.J.Bartells Company, a Washington corporation; A.P.Green Refractories Company,Defendants-Appellees.SCHOOL DISTRICT NO. 1J, MULTNOMAH COUNTY, OREGON, Plaintiff-Appellant,v.ACandS, INC....
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*461 OPINION RE OBJECTION TO HOMESTEAD EXEMPTION I. INTRODUCTION. Merolin Norman (“Debtor”) filed a Chapter 7 petition on April 22, 1993. The first meeting of creditors pursuant to 11 U.S.C. § 341 1 was held on May 24, 1993. John Monte (“Trustee”), the trustee appointed in this case, timely filed an objection (“Motion”) to the Debtor’s homestead exemption on June 23, 1993. Debtor schedu...
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I. INTRODUCTION Plaintiff-Appellant Amy Carrillo appeals from the district court’s entry of summary judgment against her in this Federal Tort Claims Act (“FTCA”) action. Carrillo claims that the United States is liable for the alleged negligence of Dr. Carl Ozimek, a civilian pediatrician whose employer, Pediatric Providers, P.S., contracted to provide pediatric care at Madigan Army Medical Cen...
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Terabyte International, Inc., Jean Hsu and Kenneth Hsu (collectively referred to as “Terabyte”) appeal the district court’s judgment following a bench trial in Intel Corporation’s (“Intel”) trademark infringement action under the Lanham Act, 15 U.S.C. §§ 1051-1127 and California state law. Terabyte contends that the district court erred by concluding that it had misappropriated Intel’s trademar...
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David Hayashi appeals his conviction of taking a marine mammal in violation of 16 U.S.C. § 1372(a)(2)(A). We hold that the Marine Mammal Protection Act (MMPA) and the regulations implementing the act do not make it a crime to take reasonable steps to deter porpoises from eating fish or bait off a fisherman’s line. Therefore, we conclude that insufficient evidence supported Haya-shi’s conviction, a...
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This appeal presents the question whether an investigative author, at work on a forthcoming book, may be compelled to testify and produce notes and tape recordings of interviews he conducted with a source who happens to be a defendant in a defamation action. We hold, under the circumstances of this ease, that he may not. I Appellant Ronald Watkins is an investigative author of books on topical and...
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Robert R. Cervantes appeals the dismissal, under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, of his First Amended Complaint. The district court concluded that the action, brought under 42 U.S.C. § 1983, was barred by the applicable statute of limitations. Because we conclude that Cervantes’ amended complaint adequately alleges facts supporting equitable tolling of the limitations period, w...
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Appellants Mkhsian, Meliksetian, and So-goyan appeal their convictions for violating 21 U.S.C. §§ 846, 841(a)(1) (conspiracy to possess cocaine with intent to distribute) and 21 U.S.C. § 841(a)(1) (possession of cocaine with intent to distribute). Meliksetian and Sogoyan also appeal their sentences. We have jurisdiction over appellants’ timely appeals pursuant to 28 U.S.C. § 1291. We affirm Mel...
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Opinion The People appeal from an order of the superior court denying their motion to reinstate a criminal complaint against defendants Raymond Howard and Tina Rose. (Pen. Code, §§ 871.5, 1238, subd. (a)(9).) The principal question on appeal is whether an officer who has complied with Penal Code section 1531 (§ 1531) before entering a house to execute a search warrant must again observe t...
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ORDER RE DISCOVERY INTRODUCTION Defendants ATX Sky Valley, Ltd., ATX, Inc., Ronald Volkman and John Airhart (hereafter collectively referred to simply as ATX) have moved the court for an order compelling plaintiffs and counter-defendants Sky Valley Limited Partnership, Tang Industries, Inc., as well as counter-defendants Cyrus Tang, Dan Chambers, and CT Nine, Inc. (hereafter collectively referred...
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18 Cal.App.4th 1092 (1993) 23 Cal. Rptr.2d 170 In re ANDRES M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ANDRES M., Defendant and Appellant. Docket No. D016868. Court of Appeals of California, Fourth District, Division One. September 17, 1993. *1094 COUNSEL Howard C. Cohen, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel ...
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Opinion Clinton Roe appeals a custody order permitting his former wife, Laurie Keiko Cooper (Keiko), to remove their son, M., from the state. We review the evidence in the light most favorable to the order. (In re Marriage of Carlson (1991) 229 Cal.App.3d 1330, 1337 [280 Cal.Rptr. 840].) The parties separated in January 1988, when M. was four years old. Keiko took M. and moved into a house owned b...
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Nevada state prisoner Lester Tellis appeals pro se from a district court order granting summary judgment in favor of defendant prison officials. Tellis brought this action under 42 U.S.C. § 1983, alleging that prison authorities violated his due process rights by withholding interest earned on funds in his personal prison bank account.1 We reverse. BACKGROUND Lester Tellis is a Nevada state prison...
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Gary A. Newman appeals his conviction and sentence, following a jury trial, for one count of setting a fire willfully and without authority in a National Forest in violation of 18 U.S.C. § 1855. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291. We affirm Newman’s conviction, but we vacate his sentence and remand for recalculation of the offense level and reconsideration of re...
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Defendant Craig Lee Childs appeals his conviction on four counts of possession of a stolen vehicle in violation of 18 U.S.C. § 2313 and his sentence of one year incarceration and five years probation. Childs argues that (A) venue was improper in the District of Arizona, (B) documents were admitted as business records without proper foundation, (C) duplicate copies of documents were erroneously ...
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Michael Anthony Favorito appeals the fine imposed on him by the district court in connection with his guilty plea to three counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a) (1988). The court sentenced Favorito to three concurrent terms of 135 months each and ordered him to pay restitution, a special assessment, and a fine. Favorito contends that: (1) the district court clearly ...
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C.R.A. Realty Corp. (C.R.A.) brought a stockholder’s suit for the recovery of short-swing profits under § 16(b) of the Securities Exchange Act, 15 U.S.C. § 78p(b), against Fremont General Corp. (Fremont) and Lee Emerson McIntyre (McIntyre). The precise issue before the district court was one of first impression. That court gave judgment for McIntyre. We reverse and direct that judgment be enter...
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Rickey Bradley and Edward L. Powell challenge their convictions for conspiring and attempting to kill a witness scheduled to testify against one of their associates in a federal criminal trial. At the conclusion of a joint trial, each defendant was convicted of conspiracy to kill a witness to prevent testimony in an official proceeding in violation of 18 U.S.C. § 371, attempt to kill a witness to...
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The United States appeals the district court’s refusal to sentence Randolph Parker to a fifteen-year term of imprisonment upon his conviction of possession of a firearm by a felon, 18 U.S.C. § 922(g). We conclude that, in determining whether a prior conviction following a jury trial was a “violent felony” for purposes of the armed career criminal provision, 18 U.S.C. § 924(e), the sentencing co...
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5 F.3d 452 SUBAFILMS, LTD.; The Hearst Corp.,Plaintiffs-counter-defendants-Appellees,v.MGM-PATHE COMMUNICATIONS CO., fka MGM/UA Communications Co.and as United Artists Corporation; MGM/UA Home Video, Inc.;Warner Home Video, Inc.; Warner Bros. Inc.,Defendants-counter-claimants-Appellants.SUBAFILMS, LTD.; The Hearst Corp., Plaintiffs-Appellants,v.MGM-PATHE COMMUNICATIONS CO., fka MGM/UA Comm...
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Opinion In this case we consider whether former employees of East Bay Municipal Utility District (EBMUD) who are participants in EBMUD Employees’ Retirement System (Retirement System) may file an action for breach of fiduciary duty and denial of equal protection against EBMUD, the Retirement System and EBMUD Retirement Board (Retirement Board) without first filing a claim pursuant to the ...
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Opinion This action is against operators of a skilled nursing facility, seeking damages for elder abuse. It alleges conduct occurring after the Legislature defined elder abuse and made it a crime under some circumstances, but before it amended the statutes to provide attorney fees for persons bringing civil actions and to allow heirs to recover damages for the pain and suffering of deceas...
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*1538 Opinion In this action by a secured lender against a real estate appraiser for professional negligence, the trial court granted summary judgment in favor of the defendant (Code Civ. Proc., § 437c, subd. (c)) on the ground the plaintiff’s action is barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. 1.) There is no dispute as to the underlying ...
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OPINION A debtor in possession sued in the Northern District of California to recover on a preference claim of $547.88 which had been paid to a vendor in Akron, New York. Finding venue improper pursuant to 28 U.S.C. § 1409(b), the court dismissed the complaint. In re Little Lake Industries, Inc., 146 B.R. 463 (Bankr.N.D.Cal.1992). FACTS AND PROCEEDINGS BELOW The r...
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OVERVIEW E.J. Friedman Company, Inc. (“Friedman”) 1 brought an action in district court to compel the United States to discharge a federal tax lien encumbering several parcels of property. Friedman advanced several theories to support its request for relief. The district court dismissed all of Friedman’s claims. Friedman appeals, and we affirm. FACTS AND PRIOR PROCEED...
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C. A. 11th Cir. Certiorari granted. Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, November 9, 1993. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, December 7, 1993. 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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5 F.3d 1344 CHoPP COMPUTER CORPORATION, INC., a British ColumbiaCorporation, Plaintiff-Appellant,v.UNITED STATES of America; PaineWebber Incorporated, aDelaware Corporation, Defendants-Appellees. No. 91-15991. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 20, 1992.Decided Sept. 29, 1993. William T. Bisset, Hughes, Hubbard & Reed, Los Angele...
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OPINION BIC Corporation appeals the entry of judgment resulting from a jury verdict in favor of plaintiff Patsy S. Glover for $36,048 in general damages and $1,300,000 in punitive damages. Glover’s claims arose from the death of her father allegedly caused by a defective BIC lighter. We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm in part, reverse in part, and remand for a new t...
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MEMORANDUM OPINION ON ORDER SANCTIONING ATTORNEY FOR GENDER-BASED DISCRIMINATION I. INTRODUCTION On May 10, 1993, the government brought a Motion for a Penalty Pursuant to the Local Rules against attorney Frank Swan. The government seeks imposition of a monetary sanction and referral of this matter to the Standing Committee on Discipline for the United States District Court ...
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Opinion Appellant Mercury Casualty Company issued an auto policy which covered a Renault automobile. The policy stated that it did not provide liability coverage for bodily injury sustained by an insured. The policy defined insureds to include permissive users of an owned automobile and resident relatives of permissive users, including those related by marriage. Cross-appellant Anthony Ch...
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Opinion Patrick J. Barkley appeals after the superior court dismissed two separate actions to collect a money judgment against the City of Blue Lake (the City) on the ground that both actions were barred by the 10-year limitations period for enforcing a monetary judgment against a local public entity. (Gov. Code, §§ 970.1, subd. (a), 970, subd. (b).) We affirm the judgment dismissing Bark...
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Opinion California Real Estate Loans, Inc. (CREL), a California corporation, appeals from a judgment denying a petition for writ of mandate, in which it challenged the revocation of its real estate broker’s license by the Real Estate Commissioner (the Commissioner). The revocation was based on a determination by the Commissioner that a civil judgment had been entered against CREL based on...
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Opinion Daniel Gene Calvert appeals his convictions of manufacturing, possessing for sale and transporting methamphetamine (Health & Saf. Code, §§ 11379.6, subd. (a), 11379, 11378) and convictions of conspiracy to manufacture, transport and possess methamphetamine for sale (Health & Saf. Code, §§ 11379.6, (subd. (a), 11379, 11378, Pen. Code, § 182, subd. (a)(1)). The court additionally fo...
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Opinion This case is a dispute between two health care service plans over which must pay for emergency medical services rendered to a patient who was covered under both plans. Kaiser Foundation Health Plan, Inc., paid for the services and sued Lifeguard, Inc., for reimbursement. The trial court found that Kaiser was responsible for all of the costs in question and entered judgment for Lif...
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Under section 241(a)(4) 1 of the Immigration and Nationality Act, an alien becomes deportable if convicted of “two crimes involving moral turpitude.” 8 U.S.C. § 1251(a)(4). Yet deportation is not automatic. An alien may get a waiver under section 212(e), 8 U.S.C. § 1182(e). We consider whether the INS may base a deportability determination in part on a crime it has used to support a previous de...
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MEMORANDUM AND ORDER I. Background Plaintiff, a California resident, is a trustee of the Iraj Zandi-Dulabi, M.D. Professional Corporation Defined Benefit Pension Trust and the Iraj Zandi-Dulabi, M.D. Professional Corporation Profit Sharing Trust (“the Pension Plan”). Defendant Pacific Retirement Plans, Inc. (“PRP”), a California Corporation, administers, manages, and advises ...
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Opinion A physician’s duty to disclose to a patient information material to the decision whether to undergo treatment is the central constituent of the legal doctrine known as “informed consent.” In this case, we *1176 review the ruling of a divided Court of Appeal that, in recommending a course of chemotherapy and radiation treatment to a patient suffering from a virulent fo...
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Opinion We are asked to decide whether a jury or, if jury trial has been waived, the court may look beyond the statutory elements of a crime of which a defendant was convicted in another state and consider the record of the prior conviction to determine whether the term “enhancement” created by Penal Code section 667, subdivision (a) (hereafter section 667(a)), 1 has been established. The C...
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Opinion I The trajectory of the case law now governing malicious prosecution claims arising out of family law proceedings arcs toward one destination: a bright line barring any such claims, no matter how egregious the defendant’s conduct in the family law action. The present case (at least as pled) is egregious indeed, and forces us to ponder whether the arc should be completed. After the trial c...
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*4 Opinion In this medical malpractice action involving a foreign object left in plaintiff’s right hip following surgery, plaintiff appeals from a judgment in favor of the surgeon, William A. Elliot, M.D. Plaintiff claims the trial court erred prejudicially when it foreclosed the jurors from using their common knowledge in evaluating the question of negligence. We agree and reverse the judgme...
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Opinion Television station KUSI owned by defendant McKinnon Broadcasting Co. (KUSI) employed plaintiff John Ellis as an advertising salesman. Ellis’s written employment contract contained a forfeiture provision which purported to deny him commissions on advertising he sold if the station had not received payment for the advertising before Ellis terminated his employment. After Ellis succe...
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Opinion In eminent domain cases, the “date of valuation” generally precedes the date of trial at which the value of the property is *1810 determined. The question here is whether a jury, in determining the amount of compensation due the property owner, is required to consider facts discovered during this lag which tend to reduce the property’s fair market value. We conclude t...
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Opinion I One of the recurrent problems revolving around capital punishment is whether certain benefits or liabilities extend to defendants who are charged with “capital” crimes but who nevertheless do not actually face the death penalty. 1 For example, the right to bail may depend on a defendant’s not having been charged with a “capital crime,” while the right ...
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19 Cal.App.4th 1215 (1993) 23 Cal. Rptr.2d 243 McMILLIN SCRIPPS NORTH PARTNERSHIP, Plaintiff and Appellant, v. ROYAL INSURANCE COMPANY OF AMERICA, Defendant and Respondent. Docket No. D014527. Court of Appeals of California, Fourth District, Division One. September 30, 1993. *1218 COUNSEL Jennings, Engstrand & Henrickson, Gerald Smolin, Jr., Karen M. Stuckey, Sobel & Custer, Janet E. Sobe...
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Opinion The City of Glendale (City) seeks a writ of mandate directing the trial court to vacate its order finding that the City had breached a long term lease of City-owned property to the real party in interest, Giovanetto Enterprises, Inc. (GEI), by exercising its power of eminent domain prior to the end of the term. *1773 As we conclude that the condemnation of a leasehol...
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MEMORANDUM AND ORDER GRANTING PLAINTIFF’S MOTION TO DISQUALIFY DEFENDANTS’ ATTORNEY This action came on for hearing June 14, 1993, before the Court, the Honorable William J. Rea, United States District Judge presiding, on Plaintiff Robert W. Allen’s Motion to Disqualify Defendants’ Attorney of Record, Steven A. Wright, and the law firm of Seyfarth, Shaw, Fairweather & Geraldson. After ful...
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Opinion After his motion to suppress evidence was denied, appellant Manuel Gorrostieta pleaded guilty to one count of transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and one count of possession, for sale, of heroin (Health & Saf. Code, § 11351). He also admitted various enhancement allegations, and was sentenced to a prison term of eight years, consisting of four years for t...
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*88 Opinion The sole issue presented in this appeal is the constitutionality of Penal Code 1 section 288.5, which created the crime of “continuous sexual abuse of a child.” A jury convicted Kevin Gear of one count of section 288.5. The jury also found true an allegation that Gear occupied a position of special trust to the victim within the meaning of section 1203.066, subdivision (a)(9)....
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OPINION The appellants filed adversary proceedings to determine the dischargeability of debts after the deadline set forth in the original notice sent by the bankruptcy court but before the deadline set forth in a later notice which the bankruptcy court subsequently vacated. These appeals arise from the bankruptcy court’s orders dismissing the complaints as untimely. We REVERSE the bankruptcy...
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Sup. Jud. Ct. Mass. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, November 16, 1993. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Tuesday, December 14, 1993. A reply brief, if any, is to be filed with the Clerk and served upon opposing counsel on or be...
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Peter J. Baxter appeals the district court’s order dismissing his claim for the defendant property because he lacked standing. Frank Edward Gegax appeals the district court’s order denying his motion to file a late claim. We affirm the judgment of the district court. PROCEEDINGS On April 9, 1991 the United States filed a complaint of forfeiture in rem of vacant land located at Tenth Street/...
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A jury convicted Yusuf D. Reeves of being a felon in possession of a handgun. 18 U.S.C. § 922(g)(1). He was sentenced to a term in prison and three years of supervised release. We consider in this opinion his argument that the district court erred in denying his motion to suppress evidence taken from a briefcase found in his car after a traffic stop. We affirm. Reeves raises other issues that we ...
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5 F.3d 1360 UNITED STATES of America, Plaintiff-Appellee,v.TWO TRACTS OF LAND IN CASCADE COUNTY, MONTANA; OneResidence Located at 2109 Central Avenue West,Great Falls, Montana, et al., Defendants,Henry G. Garcia, Claimant-Appellant. No. 92-36799. United States Court of Appeals,Ninth Circuit. Submitted Aug. 31, 1993*.Decided Oct. 4, 1993. John Keith, Great Falls, MT, for...
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6 F.3d 656 ESTATE OF Marilyn Marie CONNERS, by its administrator,Howard MEREDITH; Howard Meredith; LillianBeatty, individuals, as sole heirs ofMarilyn Marie Conners,Plaintiffs-Appellees,Cross-Appellants,v.Dennis M. O'CONNOR; Thaddeus Kostrubala,Defendants-Appellants, Cross-Appellees. Nos. 92-15241, 92-16414, 92-16775 and 92-16917. United States Court of Appeals,Ninth Circuit. Ar...
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Dieter Neubronner appeals the district court’s dismissal with prejudice of his fifth amended complaint against Michael Milken purporting to state a cause of action for securities law fraud under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b), and Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.-10b-5. Neubronner alleged that Milken engaged in “insider” t...
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Opinion 1. Introduction We determine below a question of first impression: What is the proper venue for an action based on the negligent design and construction of a building? Petitioners Foundation Engineers, Inc., and The Twining Laboratories, Inc., seek a statutory writ of mandate following denial of a motion to change venue to the county where the buildings are locat...
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Opinion Plaintiff and appellant August W. Bennett appeals a summary judgment in favor of defendants and respondents John McCall, Jr., and Riede, Rosenberg, McCall & Cahill in appellant’s action for legal malpractice. Appellant contends the trial court erred in ruling his action was barred by the statute of limitations. (Code Civ. Proc., § 340.6.) 1 We affirm. Facts In...
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*192Opinion After a contested five-day hearing, the juvenile court declined to take jurisdiction over Sheila B. It therefore ordered the petition alleging Sheila came within the jurisdiction of the juvenile court dismissed. Is this order appealable? We conclude it is. On the merits, we also conclude the juvenile court did not err in failing to assume jurisdiction over Sheila. Since we also conclud...
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5 Cal.4th 1203 (1993) 858 P.2d 611 23 Cal. Rptr.2d 144 THE PEOPLE, Plaintiff and Respondent, v. DEREK LATIMER, Defendant and Appellant. Docket No. S027839. Supreme Court of California. October 4, 1993. *1205 COUNSEL Janyce Keiko Imata Blair, under appointment by the Supreme Court, for Defendant and Appellant. Jack Funk, Deputy Public Defender (Contra Costa), as Amicus Curiae on behalf of Defendan...
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*117 Opinion Subdivision (a)(2) of section 340.6 of the Code of Civil Procedure 1 provides that the statute of limitations for legal malpractice is tolled during the period that the attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged malpractice occurred. In this case we hold this statutory tolling period is unaffect...
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Opinion This is anappeal by Hawthorne Savings and Loan Association (Hawthorne) from a judgment denying a peremptory writ of mandate *153 under section 1094.5 of the Code of Civil Procedure and thereby affirming the City of Signal Hill’s order requiring demolition of substandard residential buildings belonging to Hawthorne. We issued an order staying demolition of the building...
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Opinion In these consolidated appeals, plaintiff and appellant Blue Cross of California appeals a judgment confirming a private arbitration award in favor of defendants and respondents Grant and Laurie Jones in a dispute over health care benefits. Appellant contends the arbitrators acted in excess of their powers in reaching a “completely irrational” result. Facts In April 1985 ...
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Appellant, Timothy Pitts, appeals his conviction for two counts of cocaine distribution in violation of 21 U.S.C. § 841(a)(1) (1988). Appellant argues on appeal that the district court erred when it denied his motion to suppress evidence obtained from his residence on September 27, 1991 pursuant to a search warrant. He also argues the court erred when it admitted evidence, pursuant to Federal R...
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We must decide whether a sentencing court may determine a convicted defendant’s offense level based upon the total volume of a liquid mixture containing methamphetamine and whether being an accessory after the fact to murder for hire is a crime of violence under the 1989 Sentencing Guidelines. I In 1988, Patrick Innie failed to appear for sentencing after pleading guilty to being an accessory afte...
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Defendants Juan Carlos Bautista-Avila, Gabriel Figueroa-Levya, and Jorge Armen-ta-Estrada appeal their convictions for conspiracy and possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & 846. We have jurisdiction over their timely appeals pursuant to 28 U.S.C. § 1291. We reverse the convictions of Bautista-Avila and Figueroa-Levya and remand to the district cou...
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Opinion Here we decide whether parents are liable in tort because their adult son negligently shot a cousin with his own firearm. The victim, David Todd, appeals from a summary judgment entered in favor of respondents, David Dow and Carol Dow (parents). The issue presented is whether parents breached a duty of care by not controlling their son’s use of a firearm. We affirm the grant of su...
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Opinion Christopher P., a minor, through his guardian ad litem (appellant), appeals from an order denying his petition, pursuant to Government *168 Code section 946.6, 1 for relief from the claim filing statutes. The issue presented is whether Mojave Unified School District (District) is estopped from relying on Christopher’s noncompliance with the claims statutes because its employee’s adm...
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Opinion MaryBeth Smith had a brief sexual encounter with her therapist which destroyed her marriage to Cain Smith. The offended husband sued the therapist and the therapist’s employer. California abolished the torts of alienation of affection and criminal conversation (a euphemism for a third party’s sexual intercourse with an adulterous spouse) 1 more than 50 years ago, so the...
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Opinion Introduction Michael Bello and M.B. Contractors, Inc. (Bello) appeal from a judgment confirming an arbitration award (Code Civ. Proc., § 1294) 1 in favor of Grubb & Ellis Company (Grubb). We affirm. Facts Bello entered into exclusive listing agreements with Grubb, a real estate broker, to sell real property located at 1041 and 1047 West Gladstone in San D...
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Opinion This appeal is from judgments in favor of defendants in two lawsuits consolidated for trial. In action No. 96878 plaintiffs are a general partnership, a joint venture and a corporation. It relates to a parcel of real property, 11.45 acres in size, located in the City of Thousand Oaks. *246 Defendants are the Conejo Valley Unified School District (hereinafter the District), its gover...
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6 F.3d 673 62 USLW 2295 UNITED STATES of America, Plaintiff-Appellant,v.Kenneth D. GOOCH, Defendant-Appellee. No. 92-35428. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 4, 1993.Decided Oct. 6, 1993. Timothy J. Ohms, Asst. U.S. Atty., Spokane, WA, for plaintiff-appellant. Daniel J. Keane and Brian L. Meck, Keane & Rasmussen, Spokane...
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5 F.3d 1226 David Edwin MASON, By and Through Charles C. MARSON,Petitioner-Appellant,v.Daniel B. VASQUEZ, Warden of the California State Prison atSan Quentin, Respondent-Appellee.David Edwin MASON, Petitioner,Randy ALANA, Patrick Tafoya and Lee Terry Farmer, as nextfriends of David E. Mason, Applicants inintervention-Appellants,v.Daniel B. VASQUEZ, Warden of the California State Prison atSan Q...
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6 F.3d 1373 38 Fed. R. Evid. Serv. 404 William Orr SWAN; Kathleen Roland Swan, Petitioners-Appellants,v.Kurt S. PETERSON, Warden of Washington Correctional Center;Eldon Vail, Warden of Washington Correctional Center forWomen; Chase Riveland, Secretary of Department ofCorrections, Respondents-Appellees. No. 92-35493. United States Court of Appeals,Ninth Circuit. Argued and Sub...
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ORDER The judgment of the district court is reversed and the ease is remanded to it for trial in accordance with the opinion of the Supreme Court. Hartford Fire Insurance Co. v. California, — U.S. —, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993)....
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This appeal is by Ranger Insurance Company (Ranger) from an order denying its motions to discharge the *355 forfeiture of two bail bonds which Ranger had posted on Andrea Gonzales and James Martinez, defendants in a criminal case. 1 On November 1, 1990, Andrea Gonzales, James Martinez and Fernando Valencia were charged in a criminal complaint with a violation of Health and Safety Code secti...
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Opinion John Fraker appeals the trial court’s granting of respondent Sentry Life Insurance Company’s motion for summary judgment on count one of his complaint and the court’s granting of respondent’s motion for judgment on the pleadings on appellant’s amended second count. Count one of appellant’s original complaint sought declaratory relief that he was entitled to insurance payments from...
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Michele Dee Shorthouse appeals the sentence imposed after she had pleaded guilty to procuring the use of fire to commit the felony of interstate travel to commit arson and to travelling in interstate commerce with the intent to commit murder. The district court sentenced her to ten years for the latter offense and five years for the former offense, to be served consecutively, and on release from ...
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Opinion The plaintiff and appellant, Jeffrey A. Rochlis (Rochlis) appeals from a summary judgment entered against him on his four-count first amended complaint. He had sued the defendants and respondents, The Walt Disney Company (Disney), Walt Disney Imagineering (WDI) and Martin A. Sklar (Sklar) (collectively, the defendants) for damages arising out of his employment by Disney and WDI an...
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7 F.3d 152 8 IER Cases 1546 David B. BOTEFUR, Plaintiff-Appellant,v.CITY OF EAGLE POINT, OREGON, a municipal corporation andpolitical subdivision of the State of Oregon;Leon Sherman, an individual; StevenJenny, an individual,Defendants-Appellees. No. 92-35261. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 13, 1993.Decided Oct. 7, 1993. Jeff...
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6 F.3d 1385 28 U.S.P.Q.2d 1641 OFFICIAL AIRLINE GUIDES, INC., Plaintiff-Appellant,v.Mindy GOSS; Sandy Vanderzanden, d/b/a Mindy's AnsweringService; Churchfield Publications, Inc.; Ashbyweb LimitedCompany, d/b/a American Concepts; Anne-Lise Fleisher, anindividual, Defendants-Appellees.OFFICIAL AIRLINE GUIDES, INC., Plaintiff-Appellant-Cross-Appellee,v.CHURCHFIELD PUBLICATIONS, INC.; As...
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Francisco Martinez-Cano, Eduardo Arren-dondo-Martinez, and Jorge Martinez-Castillo pled guilty to conspiracy to produce false identification documents. 18 U.S.C. §§ 371 and 1028(a)(1). They were sentenced under the 1992 version of the Sentencing Guide1 lines. The district court increased the base offense level for each of them by six points, based in part upon the number of documents involved. The...
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN PART AND DENYING IT IN PART AND DENYING DEFENDANTS’ CROSS MOTION FOR SUMMARY JUDGMENT Plaintiffs’ motion for partial summary judgment and defendants cross motion for summary judgment came on regularly for hearing on August 12, 1993, before the Honorable Robert P. Aguilar. All parties appeared represented by counsel. Based on th...
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Opinion In the published portion of this opinion, we address an apparent conflict between Penal Code section 1170.1 and Health and Safety Code section 11353.1. We conclude that the limitations on consecutive sentencing which appear in Penal Code section 1170.1, subdivision (a), do not prohibit the imposition of a mandatory Health and Safety Code section *1842 11353.1 enhancem...
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Opinion Statement of the Case Petitioner, Newhall Land and Farming Company (Newhall), seeks review of an order sustaining a demurrer without leave to amend to three of its causes of action against real parties in interest, Amerada Hess Corporation and Amerada Petroleum Corporation (collectively Amerada) and Mobil Oil Corporation (sued as Socony Mobil Company) and Mobil Exploration an...
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AMENDED ORDER GRANTING MOTION TO DISMISS By order, entered December 28, 1992, this court granted the motions of defendants Hughes Aircraft Company and GM Hughes Electronics and intervenor United States to dismiss plaintiffs’ action. The court indicated that an opinion would follow, setting forth in detail the basis of its decision. That opinion is set forth below. I. FACTS This ...
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OPINION AND ORDER Plaintiffs, three associations and fifteen individuals, brought this -class action lawsuit, 1 challenging defendants’ use of the California Basic Educational Skills Test (“CBEST”) as a requirement for certification to teach in the California public schools. Cal.Educ.Code §§ 44252(b), 44830(b) (West Supp.1993). Defendants are the State of California (“State”) a...
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Jack Sherman Steward appeals from his convictions for attempting to sell methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846, and use of a firearm in relation to a drug offense, in violation of 18 U.S.C. § 924(c). Steward also appeals his sentence. We affirm the judgment of conviction and the sentence. Steward was convicted of attempting to sell undercover agent Bernard Za...
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7 F.3d 158 SEATTLE FUR EXCHANGE, INC., a Washington corporation,Plaintiff-Appellant,v.FOREIGN CREDIT INSURANCE ASSOCIATION, and its membercompanies: American Credit Indemnity Co. of New York;Hartford Accident & Indemnity Company; Liberty MutualInsurance Company; The Travelers Indemnity Company; U.S.Export/Import Bank; and First Interstate Bank of Oregon,N.A., a National banking associ...
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6 F.3d 1407 72 A.F.T.R.2d 93-6305, 93-2 USTC P 50,622 UNITED STATES of America; Ronald Sheresh, Revenue Agent,Internal Revenue Service, Plaintiffs/Petitioners/Appellees,v.DYNAVAC, INC.; Donald J. Helmer; and Morgan T. Wright,Defendants/Respondents/Appellants.UNITED STATES of America; Ronald Sheresh, Revenue Agent,Internal Revenue Service, Plaintiffs/Petitioners/Appellees,v.Curtis J. C...
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Opinion I. Introduction Defendant appeals his convictions for two counts of first degree burglary (Pen. Code, § 459)1 plus one finding that he had previously experienced a serious felony conviction (§ 667, subd. (a)) and two findings he had served prior prison terms. (§ 667.5, subd. (b).) On appeal, he contends: (1) his due process and confrontation rights were violated; (2) there was instructiona...
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7 F.3d 180 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee,v.Walter Allen DAVIS; Brian J. Painter; David Allen Roberts;Fremont Indemnity Co., Defendants,andShellie A. Keukelaar; Charles Rubin Keukelaar; CharlesRubin Keukelaar, a minor, by Shellie A. Keukelaar,Defendants-Appellants. No. 92-55415. United States Court of Appeals,Ninth Circuit. Argued and Submitt...
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The Internal Revenue Service (IRS) appeals from the district court’s denial of the IRS’ motion to enforce two summonses, one against C.E. Hobbs Foundation for Religious Training and Education, Inc. (Foundation) and the other against the Washington Trust Bank (Bank) as third party record keeper of the Foundation’s financial records. The district court refused to enforce either summons because it f...
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*419 Opinion Appellant Dean Julius Adams was convicted of multiple counts of sexual assault with various enhancements. He was sentenced to a term of 59 years in state prison. He raises four issues on appeal: (1) the conviction was based on partially false testimony; (2) the provision of Penal Code section 868.5 for “support persons” for sexual assault victims is unconstitutional; 1 (3) the ...
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Opinion Appellant Adrian Little was charged by information with possession of cocaine base for sale within 1,000 feet of a school while personally armed with a firearm (Health & Saf. Code, §§ 11351.5, 11353.6, *451 subd. (b); Pen. Code, § 12022, subd. (c) 1 —count 1), and the following misdemeanors: giving a false name to a peace officer (§ 148.9—count 2), conceali...
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7 F.3d 1399 Kristina Anne DAHL, M.D., Kanda Boykin, Karen Reitz, CarolGraham, Jack Swickard, Ward Karns, Cindy Stratton, DuffLilly, Nora Jacobsen, Peter Frith, Kenneth E. Miller, CindyBoren, Candance Rogers-Dickie, Karen Ferguson, Kim Phillips,Le Anne Hyneman, Cheryl Gates, Susan Thomas, Betty Guthrie,Ginger Oliver and Gino Oliveri, Plaintiffs-Appellees,v.HEM PHARMACEUTICALS CORPORATION, a Pen...
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These consolidated cases present the question whether structuring financial transactions with domestic financial institutions to avoid currency reports, in violation of 31 U.S.C. §§ 5324(a)(3) and 5322(b), is a crime involving moral turpitude within the meaning of the Immigration and Nationality Act (“INA”). We hold that it is not. Accordingly, we grant the petition for review in No. 91-70573, ...
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OPINION Scottsdale Medical Pavilion (“debtor”) appeals an order concluding that rents collected by it prepetition are cash collateral as defined by 11 U.S.C. § 363(a) and denying the debtor use of that collateral. We AFFIRM. FACTS The debtor executed a promissory note payable to the order of Mutual Benefit Life Insurance Company (“Mutual”) 1 secured by a deed of trust...
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Opinion Petitioners, Morite of California, a general partnership, Red Robin International, Inc., a corporation, William M. Morrow, Mary Lou Waite, Emerson G. Hess, Earl Soller, Scott Seller, and George Cottom seek writs of certiorari, mandate, prohibition and other appropriate relief 1 to compel respondent, Los Angeles County Superior Court, to vacate its order setting for trial the declarato...
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Petitioner, Star Editorial, Inc. (“the Star”), seeks a writ of mandamus directing the district court to vacate its March 22, 1993, discovery order compelling the Star to disclose the identities of its confidential sources of information for an article it published about Rodney Dangerfield, a well-known entertainer, the real party in interest. We deny the petition. I. FACTS On September 11...
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Kilgore was sentenced to a term of 92 months for being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Kilgore appeals from his sentence, and the government cross-appeals. The government argues that Kilgore’s prior burglary and assault convictions mandated sentencing him as an armed career criminal under 18 U.S.C. § 924(e). Kilgore argues that he should have re...
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INTRODUCTION Petitioners Del Aekels, Stanley C. Ryba-chek, Rosalie A. Rybachek, Glenn Bouton, Donald Stein, Lela Bouton, and Richard Ger-aghty, are individual miners who have engaged in gold placer mining in Alaska. They filed this petition pro se asking us to review permits issued to them by the Environmental Protection Agency. The permits are National Pollutant Discharge Elimination System ...
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Opinion Petitioner William Rogers seeks review of an order of respondent court denying his request for disclosure of public records from real party in interest, the City of Burbank (the City), 1 pursuant to the California Public Records Act (Gov. Code, § 6250 et seq., 2 hereinafter the Act). He contends: (1) respondent court erred in finding that telephone numbers co...
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Opinion The question presented is whether an injunctive consent judgment, in a federal age discrimination in employment case brought by the United States Equal Employment Opportunity Commission (EEOC), operates as res judicata to bar the complaining employee’s original action for damages under California law. We conclude that in this case the element of privity between the employee and th...
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5 Cal. 4th 1218 (1993) 859 P.2d 96 23 Cal. Rptr. 2d 397 SHIRLEY ALEXANDER et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; SHAIK M. SAHEB et al., Real Parties in Interest. Docket No. S026431. Supreme Court of California. October 14, 1993. *1220 COUNSEL Louise A. Lewis, Donald E. Werner, Girardi and Keese and James B. Kropff for Petitioners. No Appearance for Responden...
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Opinion Petitioners, Kaiser Foundation Hospitals, Inc., Kaiser Foundation Health Plan, Inc., and Southern California Permanente Medical Group (Kaiser), seek a writ of mandate directing the superior court to set aside its order of January 20, 1993, granting real parties’ motion to vacate an arbitration award. *515 Real parties’ wrongful death action against Kaiser was submitted to binding ar...
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OPINION The Bankruptcy Court entered an order requiring the Washington State Lottery Commission to pay all gross winnings to the bankruptcy trustee, without withholding any of the proceeds. The United States, on behalf of the Internal Revenue Service, appeals. WE REVERSE. I. FACTS Pre-petition, the debtor won the Washington State Lottery, entitling him to an annual payment of $50,000, before taxes...
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Opinion In this case we are confronted with the conflicting interests of fish and fowl at Batiquitos Lagoon. We find the California Coastal Act gives the Coastal Commission the power to resolve this conflict and that the commission acted properly in doing so. *551 Factual and Procedural History 1. Batiquitos Lagoon The factual setting which gives rise to th...
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8 F.3d 650 27 Fed.R.Serv.3d 633 Floyd KOCH; Janice Koch; William Lowe; Phyllis Lowe;Colin Wong; Mark Burr; Suzanne Borges; Herman Duran;Walter Hashimoto; Shoge Kimura; Hercules Fini; DamienChang; Ken Takeda; Bill Parrish; Ken Kemp; James Fong;Yui Lee Fong; F. Allen Whitaker; Bob Lugg; Joe Kimura;Beverly Chinn; Harold Chew; Ken Lee; Charles Di Bari;Russell Di Bari; Richa...
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19 Cal.App.4th 578 (1993) 23 Cal. Rptr.2d 671 CHARLENE I. HARROLD et al., Plaintiffs and Appellants, v. ROLLING J RANCH et al., Defendants and Respondents. Docket No. B036168. Court of Appeals of California, Second District, Division Seven. October 15, 1993. *580 COUNSEL Shernoff, Scott & Bidart and Marian H. Tully for Plaintiffs and Appellants. Cassidy, Warner, Brown, Combs & Thurber and...
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*325 Opinion The primary issue in this case is whether a standard comprehensive general liability policy (CGL) which includes coverage for “advertising injury” potentially affords coverage for inducing or contributing to patent infringement so as to trigger an insurer’s duty to defend. Facts and Procedural Background Aetna Casualty and Surety Company and Industrial Inde...
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Opinion Twenty California paint manufacturers, contractors, and dealers (the Paint Companies) appeal from portions of the judgment granting in part and denying in part their petition for writ of mandate to compel the South Coast Air Quality Management District (the District) to further assess the environmental implications of certain amendments to District rule 1113, adopted on February 2...
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Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit granted....
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OPINION The Flintkote Company (“Flintkote”) appeals from the district court’s judgment in favor of the government following cross-motions for summary judgment in this action for refund of federal income taxes plus interest paid by Flintkote for the years 1970-73. Flintkote contests the Internal Revenue Service’s (“IRS”) partial disallowance of Flint-kote’s deduction of $3.5 million paid t...
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OPINION Petitioners Donald Hateley, Wendy Sere-tan and The Cambridge Group, Inc. (collectively “Petitioners”) challenge a decision by respondent Securities and Exchange Commission (“SEC”) affirming a $55,000 disgorgement order imposed against them jointly and severally. We conclude that the amount of the disgorgement is excessive and unreasonable but deny the petition for review in all ot...
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OPINION Petitioner Charles H. Henderson, a helicopter pilot, challenges the National Transportation Safety Board’s sixty-day suspension of his commercial pilot license. The Board’s action stemmed from Henderson’s allegedly unsafe operation of his helicopter while transporting television journalists to photograph a derailed train in Corvallis, Oregon. We now affirm in part and reverse in part, a...
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5 Cal.4th 1229 (1993) 859 P.2d 102 23 Cal. Rptr.2d 403 THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF MONTEREY COUNTY, Respondent; JOSEPH D. MITCHELL, JR., Real Party in Interest. Docket No. S026362. Supreme Court of California. October 18, 1993. *1231 COUNSEL Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, John H. Sugiyama and Ronald A. Bass, Assistant...
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Opinion I. Introduction By information filed in San Mateo County Superior Court, defendant Láveme Johnson was charged with two counts of murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), and one count of arson of an inhabited dwelling (§451, subd. (b)). The information alleged the murders constituted a special circumstance of multiple murder (...
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Steve Garrett appeals the district court’s dismissal of his petition to vacate an arbitration award entered in favor of Garrett’s employer, Merrill Lynch, Pierce, Fenner & Smith, Inc. Because the district court correctly determined that it had no subject-matter jurisdiction over Garrett’s petition, we affirm. I. On July 9, 1991, Garrett filed a statement of claim against Merrill Lynch...
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Benjamin Omoruyi appeals his conviction for possession of counterfeit securities in violation of 18 U.S.C. § 513. I. Omoruyi argues that the district court erred by permitting the government to peremptorily challenge female prospective jurors on the basis of gender. The first government peremptory challenge was exercised against an unmarried white woman, and the second against an unmarried ...
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8 F.3d 15 PORTLAND FEMINIST WOMEN'S HEALTH CLINIC, an Oregon nonprofitcorporation; Amy Aycrigg; Geri Craig, et al.,Plaintiffs-Appellees,v.ADVOCATES FOR LIFE, INC., an Oregon nonprofit corporation;et al., Defendants-Appellants. No. 91-35512. United States Court of Appeals,Ninth Circuit. Oct. 19, 1993. Before: BEEZER, NOONAN and TROTT, Circuit Judges. ORDER ...
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7 F.3d 1405 Eladio T. FIGUEROA, et al., Plaintiffs-Appellees,v.UNITED STATES of America, A.D. Loizeaux, G.E. Monroe, T.J.Johnson, et al., Defendants-Appellants.Eladio T. FIGUEROA, Leo A. Abilo; Bartolome E. Abuan, RomeoA. Acejo, et al., Plaintiffs-Appellants,v.UNITED STATES of America, et al., Defendants-Appellees. Nos. 92-15914, 92-16602. United States Court of Appeals,Ninth Circuit....
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Opinion I. Introduction In No. A058473, appellant Jerry C. seeks review of the jurisdictional and dispositional orders by which his children, Brandon and Summer, were declared dependents of the juvenile court and removed from his care and custody pending successful completion of a reunification plan. Appellant contends that he was deprived of due process when the trial court allowed the Sonom...
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Opinion Statement of the Case On February 21, 1992, the Kern County District Attorney filed a five-count information against Luis Alberto Lomeli, Jr. (defendant), charging him in count 1 with oral copulation (Pen. Code, § 288a, subd. (c)), 1 in count 2 with touching an intimate part of the victim (§ 243.4, subd. (a)), in count 3 with assault with intent to accomplish an act of sexual interc...
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Opinion Roberto Gamboa was killed when he was struck, while riding his bicycle, by a tractor-trailer owned by the Fred Alberg Trucking Company (Alberg Trucking) and driven by its employee, Leland Ray Demele. At the time of the accident, Alberg Trucking was subhauling freight for Conti Trucking, Inc. (Conti Trucking). Appellants, Araceli Gamboa (Roberto Gamboa’s widow) and her three minor ...
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Opinion This is an expedited appeal from an order of the trial court filed June 4, 1993, denying a preliminary injunction, the effect of which is to prevent the owners of a twin towers hotel, known as the San Diego Marriott Hotel and Marina (the Hotel), managed by Marriott Hotels, Inc. (MHI), 1 from statutorily terminating MHI’s management contracts pending resolution of the ow...
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Opinion A group of 21 California paint manufacturers, contractors, and dealers (the Paint Companies) sued several air pollution control districts (the Districts), the Air Resources Board (ARB), the California Air Pollution Control Officers Association, Inc. (CAPCOA), and Technical Review Group (TRG), challenging certain amendments to environmental regulations (Rule Amendments) limiting th...
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Opinion These consolidated actions arising from automobile-pedestrian accident were tried by the court. Judgment was in favor of the injured person, plaintiff and respondent Lisandro Ramirez Azucena, and in favor of plaintiff and respondent Fremont Compensation Insurance Company, which paid workers’ compensation benefits to Azucena on behalf of Azucena’s employer. The judgment, in the total amo...
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7 F.3d 1413 62 USLW 2252, 29 Collier Bankr.Cas.2d 1487,27 Fed.R.Serv.3d 255, 24 Bankr.Ct.Dec. 1308,Bankr. L. Rep. P 75,490 In re SAN JOAQUIN ROAST BEEF, a California Corporation, Debtor.James M. FORD, as Trustee of the Estate of San Joaquin RoastBeef, a California Corporation, Plaintiff-Appellant,v.UNION BANK, Federal Savings and Loan Insurance Corporation,Presidio Savings and Loan Associ...
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Lorenzo Garcia appeals his jury conviction for aggravated sexual abuse of a child. He requests that his conviction be vacated and his ease remanded for a new trial, arguing (1) that the district court violated his Sixth Amendment right to confrontation by allowing the minor victim to testify at trial via two-way closed circuit television, and (2) that the district court erroneously refused to ins...
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Opinion When a trial court orders a new damages trial, may the plaintiff designate new expert witnesses? Our answer is yes. Accordingly we grant petitioner’s application for a writ of mandate. Procedural Background On March 20, 1989, petitioner, while detained by a Bargains Unlimited employee, was injured. He sued real parties in interest (RPI) for assault, battery, and negligence. Prior ...
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Opinion Susan Ann Vincent appeals from the judgment of conviction entered after a jury found her guilty of forgery (Pen. Code, § 470) and making a false financial statement (Pen. Code, § 532a, subd. (1).) She asserts that the conviction for forgery must be reversed because a signature card cannot be the subject of a forgery; that there was no evidence of a false financial statement; and that pr...
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*780 Opinion After a prison guard, Sergeant Dean Burchfield, was speared to death inside San Quentin Prison, three inmates affiliated with the Black Guerilla Family (BGF) were charged with conspiracy to murder (Pen. Code, 1 § 182) and murder (§ 187). A special circumstance, the murder of a peace officer, was also alleged. (§ 190.2, subd. (a)(7).) Appellant Andre J...
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7 F.3d 891 WACKERMAN DAIRY, INC., a California Corporation; Hollis E.Reimers, Plaintiffs-Appellants,v.George G. WILSON, Angle Decree Water Master; Orland UnitWater Users' Association, a CaliforniaCorporation; United States of America,Defendants-Appellees. No. 91-16515. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 3, 1993.Decided Oct. 21, 1993. ...
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7 F.3d 902 144 L.R.R.M. (BNA) 2525, 126 Lab.Cas. P 10,893 RAILWAY LABOR EXECUTIVES' ASSOCIATION; InternationalAssociation of Machinists, Aerospace Workers,International Brotherhood of ElectricalWorkers, Plaintiffs-Appellants,v.SOUTHERN PACIFIC TRANSPORTATION COMPANY; Denver & RioGrande Western Railroad Company, et al.,Defendants-Appellees. No. 91-16745. United States Court o...
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Opinion The City of Oakland appeals from a judgment in favor of Robert W. Copeland and his wife, Margaret Copeland, in a personal injury case arising out of the overturn of their truck at an intersection in Oakland. The city argues that there was insufficient evidence that it had accepted the street on which the accident occurred into the city’s street system. Absent such acceptance, the ...
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*742 Opinion As to two defendants, the superior court dismissed one count (murder) of a twelve-count multiparty indictment on the ground that prosecution of the murder charge against them is barred by Penal Code section 1387. 1 That section provides that further prosecution of a felony is barred if the action has twice been previously terminated. The People seek a writ of mandate compelling...
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*732 Opinion The issue in this case is whether the City of Santa Monica Rent Control Board’s absolute limitation on annual rental increases is constitutional as applied. Our answer is that it is not. Facts A. In 1979, the City of Santa Monica adopted a rent control charter amendment and created an elected Rent Control Board “empowered to regulate rentals ... so tha...
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Carl and Mary Shelden appeal from the June 24, 1992 decision of the United States Claims Court, 1 Shelden v. United States, 26 Cl.Ct. 375 (1992) (Shelden II), vacating the same court’s January 12, 1990 decision, Shelden v. United States, 19 Cl.Ct. 247 (1990) CShelden I). In Shelden II the Claims Court held that the Sheldens, as mortg...
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Opinion In this case, we decide that the stipulation giving the defendant an open extension of time to plead to the complaint did not bar dismissal of the action for delay in prosecution when the stipulation was for the benefit of the plaintiff, and upon giving notice, he could require the defendant to file a responsive pleading. Factual and Procedural Background On April 14, 19...
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7 F.3d 1427 1994 A.M.C. 365 ALL PACIFIC TRADING, INC., a corporation, Plaintiff,andTokio Fire & Marine Ins. Co., Ltd.; Fireman's FundInsurance Co.; International Cargo & Surety InsuranceCompany; Malayan Overseas Insurance Corporation; Shin KongFire & Marine Insurance Co., Ltd.; Compass International,Janka, Ltd.; Rockwell International Corp.; USA Maxam,Inc.; A.O.K. Inter...
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Appellant Jaime De Anda appeals the district court’s adverse judgment in his civil rights action and its denial of his motion for a new trial. De Anda argues that the district court erred in (1) separating his trial into phases, (2) excluding evidence of the result of the state court preliminary hearing, and (3) limiting his examination of one of the defendants. We affirm in part, reverse in pa...
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19 Cal.App.4th 795 (1993) 23 Cal. Rptr.2d 632 THE PEOPLE, Plaintiff and Respondent, v. DANNY DEE SUTTON, Defendant and Appellant. Docket No. C013235. Court of Appeals of California, Third District. October 22, 1993. *796 COUNSEL David J. Briggs, under appointment by the Court of Appeal, for Defendant and Appellant. *797 Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attor...
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Opinion Defendant Lawrence Lancellotti appeals from judgment and sentence of five years in state prison for manufacturing methamphetamine. Authorities were notified when the manager of defendant’s rented public storage locker noticed an unusual odor. Appellant contends that manufacturing the drug was physically impossible because a necessary piece of equipment and a necessary chemical wer...
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Opinion Three insurance sales representatives employed by defendant California State Automobile Association (CSAA) appeal from a judgment *766 dismissing their breach-of-contract complaint against their employer, and from a postjudgment order denying their motion to tax costs. The judgment followed a ruling by the trial court excluding all evidence of CSAA’s alleged promises ...
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James Allan Huss (Huss) was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Huss was sentenced under the Armed Career Criminal Act, 18 U.S.C. § 924(e), which imposes a mandatory minimum sentence of fifteen years on those convicted under § 922(g)(1) who have at least three prior violent or drug-related felony convictions. Huss argues on appeal that his...
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10 F.3d 598 Edwin L. BRICKER; Cynthia Bricker, husband and wife,Plaintiffs-Appellants,v.ROCKWELL INTERNATIONAL CORPORATION; Rockwell HanfordCorporation; Westinghouse Corporation;Westinghouse Hanford Corporation,Defendants-Appellees. No. 91-36153. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 12, 1993.Decided Oct. 25, 1993. Thad Guyer, T.M. Gu...
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8 F.3d 657 Bishop COLLINS; Mario Valdez; Gary Taylor; Billy Bell;Robert Halstien; Daniel Evans, and Randy Reed,suing on behalf of themselves and allothers similarly situated,Plaintiffs-Appellants,v.Gerald THOMPSON, et al., Defendant-Appellee. No. 93-35245. United States Court of Appeals,Ninth Circuit. Submitted* Oct. 15, 1993.Decided Oct. 25, 1993. Robert A. Stalker,...
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concurring: I concur in the majority opinion, but file this separate concurrence to the discussion of the alleged Lanham Act violation in Part II of the opinion. I am of the opinion that the law in this circuit regarding the Lanham Act permits a more direct dismissal of Summit’s claim of reverse palming off. The contract between Summit and the Chinese manufacturer ZMTW, provides that Summit has th...
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Opinion The People appeal from an August 14, 1992, order granting a new trial on the ground of insufficiency of the evidence. This is the trial court’s second order granting a new trial in this case, and the People’s second appeal. Appellant contends that after the issuance of our remittitur in a prior appeal directing the trial court to deny the motions for new trial, the trial court had no juris...
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Opinion Mark D. (Mark), a resident of Pennsylvania and the father of Joseph D. (Joseph), appeals a judgment under Welfare and Institutions Code section 300 declaring Joseph a dependent of San Diego County *681Juvenile Court. Mark, who had been awarded custody of Joseph in an earlier proceeding in family court in Pennsylvania, contends the San Diego proceeding violated the Uniform Child Custody Jur...
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6 Cal.4th 62 (1993) 859 P.2d 708 23 Cal. Rptr.2d 628 THE PEOPLE, Plaintiff and Respondent, v. PASCUAL HERNANDEZ RUBACALBA, Defendant and Appellant. Docket No. S030158. Supreme Court of California. October 25, 1993. *63 COUNSEL Geoffrey R. Pope for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Assistant At...
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James A. Walsh appeals the judgment of the district court, 783 F.Supp. 546, entered against him for violation of section 112 of the Clean Air Act (the Act), 42 U.S.C. § 7412 (prior to its November 15, 1990 amendment), and the National Emission Standards for Hazardous Air Pollutants for asbestos, 40 C.F.R. § 61, Subpart M (NESHAP) (prior to their November 20, 1990 amendment). There is little publi...
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The government appeals from a judgment of the district court dismissing five counts of a sixteen count indictment charging that Nukida tampered with consumer products *667 affecting interstate commerce, in violation of 18 U.S.C. § 1365(a). In granting Nukida’s Federal Rule of Criminal Procedure 12(b) motion to dismiss, the district court concluded that the products allegedly tamper...
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ORDER The district court held Witness/Appellant Kimberly Trimiew in contempt of court and ordered her confined for refusing to answer questions before the grand jury. The district court also denied Trimiew’s motion for bail pending appeal. Trimiew filed a timely notice of appeal. Trimiew now moves for bail pending appeal in this court. Under the recalcitrant witness statute, no person confine...
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Idaho appeals the district court’s grant of James Woolery’s petition for a writ of habeas corpus. Woolery’s petition alleged that he was entitled to relief because evidence of a blood alcohol test introduced at his trial in state court was obtained in violation of his Fourth Amendment rights. In its response to Woolery’s petition in district court, the State of Idaho neglected to assert that the c...
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ORDER The Interstate Commerce Commission (the “ICC”) sued Transcon Lines (“Trans-con”) and its bankruptcy trustee, Leonard Gumport (the “Trustee”), to enjoin the Trustee from collecting filed freight charges. The ICC contended that the collection would violate its credit regulations. The district court granted summary judgment to the Trustee, and the ICC appealed. We affirmed in part, vaca...
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Opinion This appeal concerns an exculpatory clause contained in the declaration of covenants, conditions and restrictions (CC&R’s) governing the relationship between an association of condominium homeowners and the condominium owners. If applied to this case, the exculpatory clause will relieve the association of its contractual liability to pay the plaintiff condominium owner for water d...
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The United States appeals the granting of defendant’s motion to correct his sentence. Because we hold that the district court correctly concluded that the government breached its plea agreement with the defendant by failing to request, on the basis of substantial assistance, a sentence below the statutory mandatory minimum, we affirm. I Alberto De la Fuente was arrested at the Guam Arport on ...
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Opinion Procedural History Defendants, Willie Neal and Patrick Shelton, appeal from multiple convictions for a series of armed robberies which they committed at various places during January of 1991. They were jointly charged by an amended information with 17 counts (1 through 6, 8 through 10, 13 through 15, 17 through 20, and 22) of second degree robbery (Pen. Code, § 211),1 2 counts (7 and 25) ...
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Opinion Plaintiff, a nonprofit corporation comprised of pharmacists throughout California, appeals from a judgment denying its petition for writ of mandamus and for injunctive relief wherein plaintiff challenged various *1141 regulations promulgated by defendant California State Board of Pharmacy (Board) pertaining to pharmacy technicians. Plaintiff contends that the regulati...
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Opinion Richard Utley appeals from an adverse declaratory relief judgment entered in favor of his insurer, Allstate Insurance Company (Allstate). Appellant was sued by a third party for indemnity after his son fell off a bicycle and injured himself. Appellant brought the instant action for declaratory relief when Allstate advised him that his homeowners insurance policy provided no covera...
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*1048 Opinion Petitioner Kenneth Dean Cox, a defendant in a criminal prosecution below, contends he was illegally committed because the magistrate, relying on local court rules, refused to let him move for suppression of evidence at the preliminary hearing on the ground the motion was untimely under local rules. We shall hold that the relevant portions of the local rules are invalid because t...
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7 F.3d 1449 72 A.F.T.R.2d 93-6548, 93-2 USTC P 50,599 Robert E. SESSLER; Natalie R. Sessler, in their capacity asTrustees of the Sessler Trust, Dated July 18,1985, a Revocable Trust, Plaintiffs-Appellees,v.UNITED STATES of America, Defendant-Appellant.Robert E. SESSLER; Natalie R. Sessler, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. Nos. 92-55031, 92-55042....
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Atkinson-Baker & Associates, Inc., a court reporting service, appeals the district court’s judgment for James G. Kolts in Atkinson-Baker’s action seeking declaratory and in-junctive relief because Kolts barred Atkinson-Baker from continuing to provide court reporting services in a case over which he served as special master. The district court found that Special Master Kolts was absolutely immu...
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Tyrone Powe and Robert Juarez appeal their convictions for conspiracy in violation of 18 U.S.C. § 371 and theft of funds from a government project in violation of 18 U.S.C. § 666. Powe also appeals his conviction for providing a false statement on a tax return in violation of 26 U.S.C. § 7206(1). We affirm. 1 *69 i. In 1986, Tyrone Powe, Robert Juarez, Daniel Garner and Virgil Bartlett, a...
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After a trial by jury, appellant Linda Kay Richardson was convicted under 18 U.S.C. § 1001 for making false statements to the Department of Labor in order to obtain disability benefits under the Federal Employees Compensation Act (“FECA”). Richardson challenges her conviction on the ground that section 1001, the general federal false-statement statute, is limited by 18 U.S.C. § 1920, a specific f...
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6 Cal.4th 86 (1993) 859 P.2d 1301 23 Cal. Rptr.2d 786 In re CHRISTOPHER R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CHRISTOPHER R., Defendant and Appellant. Docket No. S029234. Supreme Court of California. October 28, 1993. *88 COUNSEL Kerry C. Connor, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney Ge...
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Opinion Timothy Sherrick was convicted of 3 counts of violating Penal Code section 288, subdivision (c), i.e., being 10 years older than the 14-year-old victim and committing lewd acts upon her. As part of the written *659 negotiated disposition, appellant agreed: “I now waive and give up my right to appeal in this case. I understand that based on this agreement, I will ...
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Opinion In In re B. G. (1974) 11 Cal.3d 679 [114 Cal.Rptr. 444, 523 P.2d 244], this court established an important rule of procedure for child *71custody and dependency cases. We held that one who is not the child’s parent or legal custodian, but who has become a “de facto parent” by assuming that daily role over substantial time, may be privileged to participate as a party to the court proceedin...
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19 Cal.App.4th 1102 (1993) 23 Cal. Rptr.2d 865 In re the Marriage of CAROLYN S. and JOHN G. DANIELS. CAROLYN S. DANIELS, Appellant, v. JOHN G. DANIELS, Respondent. Docket No. A059833. Court of Appeals of California, First District, Division Five. October 27, 1993. *1103 COUNSEL Patricia Lee Culley for Appellant. Richard L. Howard for Respondent. *1104 OPINION PETERSON, P.J. Appellant Carolyn S. D...
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Opinion In this case, we hold that orders awarding discovery sanctions are not separately appealable orders. Procedural Background The order at issue here arises from a discovery dispute in a wrongful death and personal injury action brought by plaintiff Dale Peterson and his children against defendant General Motors Corporation and others after a vehicle accident in which Cheryl Peterson (...
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Opinion Statement of the Case Defendant Wade William Fry appeals from a judgment entered after a court trial in which he was found guilty of arson of a structure and four counts of arson of a vehicle. (Pen. Code, § 451, subds. (c) and (d).) The court imposed the four-year midterm sentence for arson of a structure and concurrent two-year midterm sentences for the other arson offenses. The cour...
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Opinion Charles Lee Carter (defendant) appeals from the judgment after he was convicted of murder and several lesser offenses and sentenced *1240 to life imprisonment without possibility of parole. He claims the trial court erred by admitting evidence linking him with a prior similar murder, and by denying his request for immunity in connection with any testimony he might give to rebut that e...
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*1258 Opinion The question in this case is whether a trial court must hold a hearing before acting upon a discovery referee’s report. We hold that the trial court must independently consider the referee’s findings and any objections submitted by the parties before accepting or rejecting the referee’s recommendations but that this may be done in whatever manner the trial court deems appropriat...
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Opinion Defendant Theresa Groat was indicted by the Grand Jury of Santa Clara County on December 16, 1991, on one count of misappropriating public funds (Pen. Code, § 424). 1 She moved to set aside the indictment (§ 995, subd. (a)(1)(B)) arguing that section 424 was inapplicable to her. The motion was dismissed. After waiving her right to a jury trial, she submitted the issue of her guilt on ...
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*1281 Opinion In this mandate petition, Eric Belton challenges the granting of the People’s motion to consolidate two murder cases for trial. He argues that while the two offenses are of the same class, their joinder will result in substantial prejudice to him, thus rendering consolidation improper. Petitioner’s argument relies on case law which preceded the adoption of Proposition 115. The...
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Opinion Procedural History By an information filed September 7, 1990, appellant and codefendants Phy Chhem, Cheng James Chhem, and David Tam Oum were charged in 12 counts involving murder, robbery, burglary, and forcible rape. After arraignment and entry of plea, appellant’s trial was severed from that of his three codefendants. Appellant’s motion for appointment of cocounsel pursuant to Pena...
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Opinion In this case we hold a mistrial, new trial or reversal of the judgment on appeal automatically restarts the time limitations on discovery. Thus, where a mistrial was declared, plaintiff’s subsequent demand for exchange of expert witness information was timely because it was made more than 70 days before the date set for retrial. Facts and Proceedings Below This is a medi...
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We consider how the government may go about proving a defendant’s prior crimes when they are an element of the charged offense. Background A jury convicted Breitkreutz of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and the court sentenced him to 15 years in prison as a career criminal pursuant to 18 U.S.C. § 922(e). When he was arrested, Breitkreutz was driving a p...
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8 F.3d 695 Val John GREEN, Plaintiff-Appellee,v.Gordon L. HALL, Personal Representative of the Estate ofMichael D. Coffman; The Estate of Michael D.Coffman, Defendants-Appellants.Richard M. ROBERTSON; The Salvation Army, a non-profitcorporation, Defendants,v.Gordon L. HALL, Personal Representative of the Estate ofMichael D. Coffman; The Estate of Michael D.Coffman, Third-party-plaintiffs-Ap...
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This is an appeal from the dismissal of a class action seeking injunctive and declaratory relief to prevent Operation Rescue and others from interfering with women’s access to abortion clinics and preventing and hindering state law enforcement officials from securing to women the ability to exercise that constitutional right, 721 F.Supp. 1168. During the pendency of this appeal, the United States ...
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We are called upon in this appeal to consider the limits on our supervisory powers. Tucker contends that we have the power and obligation to reverse his criminal conviction and dismiss the indictment against him because of excessive delay in hearing his appeal due to the failure of a court reporter to file a transcript of his trial in a timely manner. We hold that we may not exercise our superviso...
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Appellant Carl Lee Simington was charged with attempted murder (Pen. Code, §§ 187, 664—count 1), assault with a deadly weapon *1377 (Pen. Code, § 245, subd. (a)(1)—count 2), and battery with serious bodily injury (Pen. Code, § 243, subd. (d)—count 3). He was acquitted of the attempted murder charge, as well as the lesser offense of attempted voluntary manslaughter. He was found guilty as charge...
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Opinion Diane L. appeals from a juvenile court order made pursuant to Welfare and Institutions Code1 section 387 permanently removing her great-nephew Joel H., bom June 6, 1984, from her physical custody. Pursuant to an earlier juvenile court order for out-of-home placement, appellant had been Joel’s care provider for more than three years. The appeal raises numerous issues, including whether the...
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Opinion On August 19, 1993, the Supreme Court, having accepted this case for review, issued its order directing us to reconsider our decision in light of Cynthia D. v. Superior Court (1993) 5 Cal.4th 242 [19 Cal.Rptr.2d 698, 851 P.2d 1307]. In Cynthia D., the question was whether Welfare and Institutions Code section 366.261 offends due process rights by allowing the juvenile court to terminate pa...
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Opinion David Duran Jimenez demurred to the information charging him with violation of Penal Code section 1320.5 on the ground that the statute does not apply to bail pending appeal. The demurrer was sustained and the case was dismissed; the People appeal. We reverse. Jimenez was sentenced to 14 years in prison following his guilty plea to a charge of offering to sell cocaine. (Health & Saf. Code...
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*1419 Opinion Kern County (the county) appeals from a judgment declaring its landfill assessment ordinance a “special tax” invalidly adopted in violation of article XIII A, section 4 of the California Constitution (section 4). 1 We find the landfill assessment is not a “special tax” and is valid, whether characterized as a regulatory/service fee or as a benefit assessm...
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Opinion This appeal challenges the validity of an excise tax enacted by the City of Vallejo by Ordinance No. 1058. Appellants, Centex Real Estate Corp., Davidon Homes and The Lusk Company, real estate developers, contend that the ordinance was enacted to circumvent the requirements of Government Code 1 section 66000 et seq. which restrict the imposition of development fees and that the excise...
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Opinion Petitioner was found guilty by jury in superior court of second degree murder with personal use of a deadly weapon and two counts of assault with a deadly weapon and great bodily injury. During his probation interview petitioner asserted he was a juvenile at the time of the offense. The court found that petitioner was a minor and ruled he had waived his right to be tried and sente...
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Opinion The sole issue presented by this petition for extraordinary relief is whether the Vehicle Code 1 section 11205 requirement that the California Department of Motor Vehicles (Department) publish a list of all licensed traffic violator schools, permits a private cause of action against the state by a school negligently omitted from the published list? As we shall explain, ...
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159 B.R. 546 (1993) In re Clifford and Christie BISCH, Debtors. Clifford and Christie BISCH, Appellants, v. UNITED STATES of America, Appellee. BAP No. WW-92-2066-RAsB, Bankruptcy No. 91-05148. United States Bankruptcy Appellate Panel Ninth Circuit. Argued and Submitted July 23, 1993. Decided October 13, 1993. *547 John S. Woodburne, Bellevue, WA, for appellants. W. Carl Hankla, Washington, DC, f...
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510 U.S. 942 Digital Equipment Corp.v.Desktop Direct, Inc. No. 93-405. Supreme Court of United States. November 1, 1993. 1 Appeal from the C. A. 10th Cir. 2 Certiorari granted. Reported below: 993 F. 2d 755. ...
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OPINION The Debtor’s wife filed a motion to determine the appropriate disposition of the proceeds after the sale of joint tenancy property by the Chapter 7 trustee. 2 The court ruled the proceeds were community property and the estate was entitled to all of the property. The wife appeals. We REVERSE. I. FACTS On or about November 6, 1972, John T. Gorman, (“Debtor”) and Gloria Gorman (“A...
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Defendant Eva Harper appeals an order of the district court correcting an earlier judgment and denying Rule 60(b) relief from that judgment. Insofar as Harper’s appeal challenges the earlier judgment, entered after remand from this court, we dismiss the appeal. To the extent that the judgment challenges the denial of Rule 60(b) relief, we affirm. FACTS This action was originally broug...
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Debtor-appellant Plaid Pantries, Inc. (“Plaid”) appeals from the district court’s decision that creditor-appellee Employers Insurance of Wausau’s (“Wausau”) claim for unpaid workers’ compensation insurance premiums was entitled to priority payment from Plaid’s bankruptcy estate, 137 B.R. 405. We have jurisdiction under 28 U.S.C. § 158(d), and review the conclusions of the district and bankruptc...
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David Kevin Cox appeals the sentence imposed by the district court after a jury convicted him of possessing and manufacturing two destructive devices in violation of 18 U.S.C. § 2, 26 U.S.C. § 5822 (must obtain approval from Secretary of Treasury and pay tax to manufacture firearms), 5861(d) (possession) & (f) (manufacture), & 5871. Cox appeals the court’s seven-level upward departure; the denial ...
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Filipinas Lucero Casern faces deportation for lying about her marriage. Finding the Immigration and Naturalization Service did not consider all relevant factors in making its decision, we reverse and remand for proceedings consistent with the following opinion. I. BACKGROUND In November 1983 Filipinas Lucero Ca-sern, a citizen of the Philippines, applied for a visa to the United States as an unmar...
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*1385 Opinion Late one night, defendant Robert Morales acted as a lookout while his brother, Johnny Morales, broke into a locked car which was parked in the lot of an apartment complex. 1 Confronted by a resident of the complex, defendant and Johnny fled on foot. They were pursued by several apartment residents, including Terry McFarland and John Fitzgerald. Defendant, who was armed with a ...
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Opinion Defendant, Andres C. Redondo, was a deputy sheriff for the Merced County Sheriff’s Department. He was convicted of felony embezzlement (Pen. Code, § 504) 1 and misdemeanor theft (§ 488). These charges arose when defendant used his assigned sheriff’s department vehicle to steal a lawnmower. Defendant appeals, claiming opinion testimony was improperly admitted and asserti...
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Opinion Agatha B. appeals the juvenile court’s order declaring her children Christina and Daniel B. dependents (Welf. & Inst. Code, § 360, subd. (c)), removing them from her physical custody (Welf. & Inst. Code, § 361, subd. (b)(1)), and placing them with their father Walter B. (Welf. & Inst. Code, § 361.2, subd. (b).) She contends the court erred in appointing her a guardian ad litem and in acce...
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Opinion Allied-Sysco Food Services, Inc. (Allied-Sysco) appeals from a judgment awarding American Motorists Insurance Company (AMICO) $55,376.27 in a declaratory relief action in which the court found *1346 coverage under Allied Sysco’s excess policy for humiliation damages resulting from sexually discriminatory hiring practices. Allied-Sysco asserts that the trial court erre...
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8 F.3d 1348 62 USLW 2297 NEVADA ENTERTAINMENT INDUSTRIES, INC., a Nevada Corporation;Daniel Bishop, Plaintiffs-Appellants-Cross-Appellees,v.CITY OF HENDERSON, a Nevada Municipal Corporation; JamesGoff, Chief of Police and the City of Henderson,Defendants-Appellees-Cross-Appellants. Nos. 92-17054, 93-15052. United States Court of Appeals,Ninth Circuit. Argued and Submitted May ...
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In 1986 the U.S. Forest Service (“Service”) adopted a Land and Resource Management Plan (“LRMP”) for the Toiyabe National Forest. The appellant Nevada Land Action Association (“NLAA”) is a citizens’ organization comprised of ranchers who have permits to use the forest for .livestock grazing. NLAA challenges the LRMP on the grounds that the Service violated the National Environmental Policy Act,...
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The matter before the Court concerns the interpretation and application of §§ 1962(c), (d) of the Racketeer Influenced and Corrupt Organizations (RICO) chapter of the Organized Crime Control Act of 1970, Pub.L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U.S.C. §§ 1961-1968 (1988 ed. and Supp. II). Plaintiffs/appellants are some of approximately eighty investors in a California limited partn...
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Rene Ramos-Rascon and Alejandro Gonzalez-Villegas appeal their convictions for conspiracy to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. We hold that insufficient evidence exists to support their convictions, and reverse. 1 A. Background Some time be...
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Robert Halmi appeals the district court’s affirmance of the bankruptcy court’s decision disallowing his claim for administrative fees and expenses. We affirm. I. BACKGROUND Halmi was a director and shareholder of Qintex Entertainment Inc. (“QEI”). Additionally, pursuant to an employment agreement signed in April 1988, Halmi produced TV programs for QEI. The agreement required Halmi to...
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Opinion We ordered this small claims case transferred to this court (rule 62, Cal. Rules of Court) after the superior court certified the case (rule 63, Cal. Rules of Court) on the ground that it presents important questions of law which are matters of first impression regarding the extent of the superior court’s jurisdiction in a small claims appeal. Those issues are whether an appeal fr...
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Plaintiffs (hereafter “Resources Limited”) challenge the Flathead National Forest Land and Resource Management Plan (“Plan”) and the forest-wide Environmental Impact Statement (“EIS”). Resources Limited asserts the defendants (“Forest Service”) violated the National Environmental Policy Act (“NEPA”), the National Forest Management Act, and the Endangered Species Act. In-tervenor Intermountain Fore...
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8 F.3d 1403 Robert Haden KING, Jr., Petitioner-Appellant,v.Neil BROWN, Superintendent, Clallam Bay Corrections Center,Respondent-Appellee. No. 92-35471. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 3, 1993.Decided Nov. 3, 1993. Phillip M. Margolin, Margolin & Margolin, Portland, OR, for petitioner-appellant. Robert M. Atkinson, and Rob...
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8 F.3d 1379 62 USLW 2355 UNITED STATES of America, Plaintiff-Appellant, Cross-Appellee,v.Armando REYES, Defendant-Appellee, Cross-Appellant. Nos. 92-30030, 92-30059. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1992.Decided Nov. 3, 1993. Charles F. Gorder, Jr., Asst. U.S. Atty., Portland, OR, for plaintiff-appellant-cross-appellee. ...
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8 F.3d 1365 144 L.R.R.M. (BNA) 2652, 62 USLW 2356,126 Lab.Cas. P 10,918,17 Employee Benefits Cas. 1705,Pens. Plan Guide P 23887E CARPENTERS HEALTH AND WELFARE TRUST FUND FOR CALIFORNIA,Carpenters Pension Trust Fund for Northern California;Carpenters Vacation & Holiday Trust Fund for NorthernCalifornia; Carpenters Apprenticeship and Training TrustFund for Northern California; Carpent...
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Opinion Procedural History On March 8, 1991, a 32-count complaint was filed against respondent, Kevin Merritt, by the Los Angeles County District Attorney’s office. Contained in the complaint were counts involving allegations of grand theft of real and personal property, procuring or offering a false or forged instrument for recordation, fraud or unfair dealing by a foreclosure consultant, an...
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*1544 Opinion Statement of the Case On January 6, 1992, an information was filed in Tulare County Superior Court charging appellant Gerardo Cervantes Tinajero with felony sale or transportation of cocaine (Health & Saf. Code, § 11352) with an enhancement for a prior drug conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and service of ...
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Opinion Appellants Pamela and Michael Duckett and Leader Industries, Inc., appeal from the grant of summary judgment in favor of Pistoresi Ambulance Service, Inc., and James Sherrell on all causes of action alleged against them. The summary judgment affects the Ducketts’ complaint and the cross-complaint filed by Leader Industries against Pistoresi Ambulance Service and James Sherrell for...
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OPINION After a trial on stipulated facts, the bankruptcy court rendered judgment declaring that a debt for $210,447.21, as set by an order of restitution entered in state court as part of a criminal sentence im *909 posed upon conviction, was nondischargeable under both 11 U.S.C. §§ 523(a)(7) and (a)(9). Debtor appeals. WE AFFIRM. I.FACTS On June 4, 1987 Steiger caused an automobile ac...
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concurring: I join in the majority opinion except as to the discussion of the trustee being an individual; thus, I join with Judge Jellen’s concurrence as to Part I only....
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Appellant Robert Elzay Depew was convicted of manufacturing marijuana, 21 U.S.C. §§ 841(a)(1) and 841(b), possession of a firearm in relation to a drug trafficking crime (the manufacture of marijuana), 18 U.S.C. § 924(c), and possession of an unregistered gun, 26 U.S.C. §§ 5861(d) and 5845(a)(5) & (e). Depew contends that the district court erred on several grounds, including the denial of his ...
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Zelma Weinfield appeals the district court’s summary judgment in favor of the United States in her action challenging the calculation of benefits she receives under the Survivor Benefit Plan (“SBP”). We review de novo, United States v. Hatcher, 922 F.2d 1402, 1405 (9th Cir.1991), and we affirm. I. Factual & Procedural Background In 1972, Congress created the SBP to provide ...
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9 F.3d 783 72 A.F.T.R.2d 93-6512, 62 USLW 2305, 93-2USTC P 50,600 Louis M. GIOVANINI, Plaintiff-Appellee,v.UNITED STATES of America, Defendant-Appellant. Nos. 91-35779, 91-35640. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 6, 1992.Decided Nov. 4, 1993. Bruce R. Ellison, Tax Div., U.S. Dept. of Justice, Washington, DC, for defendant-appell...
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The federal government sold a landlocked parcel of real estate accessible by a road over Mr. Fisealini’s property. Several lawsuits arose regarding the sale and the easement. The government condemned the easement to settle the disputes. Mr. Fiscalini appeals the district court’s decision, claiming that the government did not have the power to condemn the easement. We affirm. I. Facts. In 1983...
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Robert Brownlee, now deceased, held a check closing out his mutual fund account for three years. Now the question is, who is entitled to the interest accrued on the funds evidenced by the uncashed check? The district court granted summary judgment for the defendants (hereinafter “Price”). We affirm in part and reverse and remand in part. I Brownlee’s financial consultant requested that Price close...
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Opinion Labor Code section 4703.5 obligates an employer to pay a special death benefit to the “totally dependent minor children” of an employee who dies as the result of a work-related injury. In this petition for writ of review, we affirm the Workers’ Compensation Appeals Board’s (Board’s) interpretation of section 4703.5 as extending this special death benefit to a totally dependent minor grandc...
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Opinion Plaintiff/appellant Yvonne Perez appeals a judgment dismissing her action for personal injuries against defendant/respondent Sallee Smith on grounds of untimely service. (Code Civ. Proc., §§ 583.210, 583.410.) 1 We affirm. Facts On September 30, 1988, appellant filed her original complaint in the municipal court. On August 21, 1991, her motion to transfer the case to the superior ...
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Opinion In this proceeding in mandate we must decide whether the apparently conflicting subdivisions of Penal Code 1 section 1335 allow or prohibit the People to examine witnesses conditionally in death penalty cases. Based on the century-old prohibition on such examinations and the absence in legislative history of reason to depart from the prohibition, we conclude the People may not conduct...
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Opinion In thepublished portion of this opinion, we shall hold that the filing of an information tolls the period of limitations as to lesser related offenses which are based on the “same conduct” (Pen. Code, § 803, subd. (b)) as that which underlies the charged offense. 1 Defendant was charged with a variety of sexual offenses committed against Margaret T. and Adonica H. A jury convicted h...
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Opinion Quality Hotels, Inns and Resorts, Inc. (Quality) 1 appeals from judgment entered in favor of Drew Herrick on his complaint for intentional infliction of emotional injury. Quality contends the emotional distress inflicted on Herrick was remediable solely within the workers’ compensation system, that there was no substantial evidence of ratification of the alleged tortious act by respon...
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Opinion Joan Weiss (hereinafter Weiss) appeals from three orders pertaining to the administration of the estate of her deceased aunt, Frances B. Hammer, by Weiss’s estranged husband, Robert Weiss, executor of Frances Hammer’s estate. The two orders specifically challenged by Weiss on appeal are (1) the February 18, 1993, order instructing and authorizing the executor to employ the law firm of Mil...
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8 F.3d 1429 144 L.R.R.M. (BNA) 2696, 126 Lab.Cas. P 10,940,17 Employee Benefits Cas. 1843,Pens. Plan Guide P 23893C Cedric CLARK, Plaintiff-Appellee,v.WASHINGTON TEAMSTERS WELFARE TRUST, Defendant-Appellant. No. 92-35054. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 31, 1993.Decided Nov. 5, 1993. Russell J. Reid and Kim Williams, Davies, R...
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Jerrold S. Heller appeals a district court judgment and a jury verdict in favor of EBB Auto Company in Heller’s action alleging that EBB unlawfully terminated him in violation of Title VII, its Oregon statutory counterpart, and Oregon common law. Because we find that EBB failed to initiate any effort to reasonably accommodate Heller’s religious practice of attending the ceremony in which his wi...
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*1585Opinion This appeal involves a decision of the juvenile court terminating appellant’s parental rights as to Leo M. and Angel G. Insofar as only the mother has appealed, the statement of the case, as well as the facts, will include only those items relevant to her claim. On December 6, 1989, a petition was filed against appellant in Kern County Superior Court alleging that Leo M., then three y...
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*1664 Opinion In this case, we will hold a court lacks the authority to rule that an arbitrator, who is given the right to decide all matters in question arising out of or relating to a contract dispute, exceeds his powers in ruling which arbitrating party prevailed for purposes of awarding attorney fees the contract allows. I. Factual and Procedural Background In July ...
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Opinion A jury convicted Benjamin Howard Van Fossan of first degree murder, during which he used a knife. He was sentenced to prison and appeals claiming evidence was improperly excluded and admitted at trial, prosecutorial misconduct occurred and the jury was misinstructed. We reject his contentions and affirm. Facts For about two weeks, the victim, his roommate, Van Fossan, and the latter...
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*1676 Opinion This case involves the question of whether a product label may be introduced as an exception to the hearsay rule. Under the facts presented, our answer is yes. Factual and Procedural History Michael G. appeals from the order declaring him to be a ward of the court (Welf. & Inst. Code, § 602) by reason of his possession of a substance containing toluene wit...
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ORDER REVERSING MAGISTRATE JUDGE’S ORDER Plaintiff-Appellant United States of America (“Plaintiff’) appeals Magistrate Judge Garrett’s January 7, 1993 order granting Defendant-Appellee Paul M. Ziegler’s (“Defendant”) motion to suppress evidence of driving under the influence of alcohol obtained when Defendant was stopped at a sobriety checkpoint. Because the Court finds that the Magistrate Judg...
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ORDER INTRODUCTION On October 12, 1991, two consolidated actions, C 90-3035 BAC and C 90-3072 BAC, were reassigned to this court. The plaintiff, Vladimir Zatko, has since filed more than 63 papers concerning these matters alone. Zatko, presently a prisoner in Corcoran State Prison, has been and continues to be a notoriously vexatious litigant. Subject to prefiling review in the Northern D...
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8 F.3d 1442 1994 A.M.C. 331, 62 USLW 2319 Michael RIGGS, Plaintiff-Appellant,v.SCINDIA STEAM NAVIGATION COMPANY and the ShippingCorporation of India, Defendants-Appellees. No. 92-55139. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 15, 1993.Decided Nov. 8, 1993. Marc Coleman, Middleton & Coleman, San Pedro, CA, for plaintiff-appellant. ...
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Opinion I. Introduction In this case we hold that kidnapping for extortion does not require the person extorted be someone other than the kidnapped victim. Mamdouh Ibrahim and Atif Ibrahim appeal from a judgment of conviction for multiple offenses, including murder, rape, and kidnapping for extortion resulting in death. We affirm. II. Background Mamdouh and Atif are brother...
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Opinion Donald J. Helmer sought a declaration that Penal Code 1 section 12021, subdivision (a) (felon in possession of a firearm), was unconstitutional. The trial court sustained without leave to amend the demurrer of defendants Edwin L. Miller, District Attorney of San Diego County, and Daniel E. Lungren, Attorney General of the State of California (collectively defendants). Judgment was ent...
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Opinion I Statement of the Case Following a jury trial, defendant Thomas Ray Gadson was convicted of first degree burglary, two counts of robbery, forcible oral copulation in concert, forcible sodomy, two counts of forcible rape, and grand theft auto. The jury found true the enhancement allegations that the crimes were committed with use of a firearm. Sentenced to state prison, defendant ap...
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510 U.S. 7 (1993) FLORENCE COUNTY SCHOOL DISTRICT FOUR et al. v. CARTER, A MINOR, BY AND THROUGH HER FATHER AND NEXT FRIEND, CARTER No. 91-1523. Supreme Court of United States. Argued October 6, 1993. Decided November 9, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT. *8 O'CONNOR, J., delivered the opinion for a unanimous Court. Donald B. Ayer argued the cause for p...
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delivered the opinion of the Court. In this case we consider the definition of a discriminatorily “abusive work environment” (also known as a “hostile work *19environment”) under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. (1988 ed., Supp. III). I Teresa Harris worked as a manager at Forklift Systems, Inc., an equipment rental company, from Apri...
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Ruben Alexander and Grace Alexander (the Alexanders) appeal the order of forfeiture of the defendant real property at 10936 *75 Oak Run Circle, Moreno Valley, California (the property). The United States obtained a judgment of forfeiture under 21 U.S.C. § 881 by means of summary judgment. The basis for that judgment has been overruled by a decision of the United States Supreme Court, United St...
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9 F.3d 792 SNAKE RIVER FARMERS' ASSOCIATION, INC., Plaintiff-Appellee,v.DEPARTMENT OF LABOR; Lynn Martin, Secretary of Labor, U.S.Department of Labor; G. Edward Leslie, Employment andTraining Administration; Ruth Kapetan, Certifying Officer,U.S. Department of Labor; Richard Thornburg, AttorneyGeneral of the United States; Immigration andNaturalization Service, Defendants-Appellees,v.Louis...
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8 F.3d 1449 42 Soc.Sec.Rep.Ser. 548, Unempl.Ins.Rep. (CCH) P 17547AHerbert RAMIREZ, Plaintiff-Appellant,v.Donna SHALALA, Secretary of Health and Human Services,* Defendant-Appellee. No. 92-55163. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 15, 1993.Decided Nov. 9, 1993. Robert Hoad, Henry N. Ernecoff, Matty M. Sandoval, Robert Hoad, A Professi...
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Opinion Plaintiffs Francis Russell and Virginia Russell appeal from a judgment in favor of defendants Trans Pacific Group, Brent Lee, and Yolanda Lee, following a court trial of plaintiffs’ action seeking legal and equitable relief due to defendants’ alleged breach of a joint venture agreement to acquire real property at a bankruptcy sale. Defendants cross-appeal, claiming the trial court...
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*1763 Opinion After a court trial, James Anatole Rehmeyer was convicted of the following felonies: two counts of residential burglary (Pen. Code, 2 §§ 459/460); one count of unlawful entry for indecent exposure (§ 314, subd. 1, hereafter referred to as felony indecent exposure); and one count of attempted felony indecent exposure (§§ 664/314, subd. 1). The trial court also found true an all...
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Opinion Appellants were jointly tried but by separate juries. Both appellants were found guilty 1 of kidnapping for robbery (Pen. Code, 2 § 209; count I), attempted forcible oral copulation in concert (§§ 664/288a, subd. (d); count III), second degree robbery (§211; count VI), and three counts of forcible rape in concert (§ 264.1; counts II, IV, V). Firearm allegatio...
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Opinion This appeal requires us to consider the California State University system’s (hereafter trustees or respondent) administrative procedures for terminating the employment of tenured faculty members who are more than 70 years old. We also consider the appropriate standard of review of the administrative decision under mandamus petition to the superior court. Facts and Procedural History ...
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Opinion An employee is injured on the job. Her employer is a corporation. The owners of the property on which the corporation does its business, and where the employee was injured, all owned stock in the corporation at the time of the injury. The injured employee receives workers’ compensation benefits from her corporate employer. May she also bring a legal action against the owners of the prop...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 § 187) 2 and second degree robbery (§211) with great bodily injury (§ 12022.7) appellant contends the trial court erred by giving an incorrect causation instruction (CALJIC No. 3.40 (1992 Rev.)) and by refusing to give a defense requested correct one. We conclude the contention is mistaken and affirm the judgment. Factual Ba...
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*1688Opinion Patricia B. appeals from a dispositional order on a second supplemental petition under Welfare and Institutions Code1 section 342. At this hearing, the juvenile court ordered that appellant’s daughter, Shawna M., remain a dependent of the juvenile court under section 300, subdivisions (b), (c) and (d); ordered her retained in out-of-home custody, and ordered that supervised visitation...
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BACKGROUND Gilbert L. Weber was convicted, following a jury trial, of three counts of making threats against the President of the United States in violation of 18 U.S.C. § 871(a). Pursuant to a motion filed by the government, the district court determined that Weber suffered from á mental disease or defect and imposed a provisional sentence of fifteen years during which Weber was to be hospital...
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MEMORANDUM DECISION AND ENTRY OF JUDGMENT Plaintiffs Winterland Concessions Co. d/b/a Winterland Productions, Big Geoff Overseas, Ltd., Big Step Productions, Inc., Boy Toy, Inc., Bustin’ Productions, Inc., and FYC Tours, Inc., the holders of exclusive licenses to sell products that exhibit pictures of the popular music artists Madonna, George Michael, New Kids on the Block, Hammer, and th...
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Opinion A jury found that, from September 1990 through May 1991, defendant committed nine acts of lewd conduct with his nine-year old daughter. The jury determined that six of the acts, in which the daughter either orally copulated defendant or masturbated his penis with her hand, were accomplished by means of force. On one occasion, with his hand defendant “push[ed] [the victim’s] head down .....
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Mitchell Anns, Inc. (Mitchell), appeals from the April 14, 1992 judgment of the United States Claims Court dismissing its complaint under Rule 12(b)(4) of the United States Claims Court (RUSCC) for failure to state a claim upon which relief could be granted. 1 In its complaint, Mitchell contended that the actions of the Bureau of Alcohol, Tobacco, and Firearms (ATF) revoking permits issued to M...
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CLASS ACTION ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT; ORDER DENYING DEFENDANT’S MOTION TO STRIKE This matter comes before the Court on the parties’ cross-motions for summary judgment and Defendant’s motion to strike portions of Plaintiffs’ summary judgment motion. The motions came on for hearing on July 9, 1993. Good Cause Appearing therefor, Defendant’s motion to strike is ...
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OPINION AND ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT This is an action under the Fair Labor Standards Act, 29 U.S.C. §§ 201, et seq. (the “FLSA”). Plaintiffs are employees of defendant City and County of San Francisco (the “city”), earning between approximately $40,-000 and $100,000 per year. 1 The FLSA originally excluded government employees. In 1974, Congress amended the FLSA to inc...
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9 F.3d 800 62 USLW 2317, 39 Cont.Cas.Fed. (CCH) P 76,595 In re LIBERTY CONSTRUCTION.CONCRETE TIE OF SAN DIEGO, INC., United States, For the Useof dba Atlas Construction Supply, Plaintiff,v.LIBERTY CONSTRUCTION, INC., a California corporation, etal., Defendants.Lucille KURTIN, et al., Third-Party-Plaintiffs-Appellants,v.SMALL BUSINESS ADMINISTRATION, Third-Party-Defendant-Appellee.LIBERTY C...
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9 F.3d 802 Frederic NOLTIE, Petitioner-Appellant,v.Kurt PETERSON, Superintendent, Washington CorrectionsCenter, Respondent-Appellee. No. 92-36757. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1993.Decided Nov. 12, 1993. Sean A. Ayres, Scales & Associates, Seattle, WA, for petitioner-appellant. Paul D. Weisser, Asst. Atty. Gen., Oly...
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Defendants California Department of Corrections (“CDC”), E.R. Myers, Joe Basso, Jim Marsh and David Tristan move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants’ argue that Plaintiffs complaint fails to state a claim under 42 U.S.C. § 1983 because (1) Plaintiff has not identified the deprivation of a constitu...
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Opinion Appellant Evan R. Flavell filed a petition for writ of mandate and a complaint for declaratory relief against the City of Albany seeking to invalidate Ordinance No. 91-04 which amends the city’s residential off-street parking requirements. 1 The trial court denied the petition and granted judgment in favor of the city. We affirm. I In 1978, residents of Albany approved “Measure D,...
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Opinion This is an appeal from the award of attorney fees to respondent for a previous appeal in an action for damages caused by *1840 dissemination of the positive HIV status of respondent’s decedent. We find that respondent was not a “successful party” within the meaning of Code of Civil Procedure section 1021.5 and reverse. 1 Background Decedent Gary Urbaniak was injured at work, and...
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Opinion Darrell James Tatman appeals his conviction by jury trial of conspiracy to violate Fish and Game Code statutes governing the harvesting of abalone. (Pen. Code, § 182, subd. (a)(1); Fish & G. Code, §§ 2000, 2002, 8301, 8305, subd. (a).) 1 Appellant contends he could not be convicted of felony conspiracy for violation of specific misdemeanor statutes. He also asserts inst...
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9 F.3d 807 SOUTHERN PACIFIC TRANSPORTATION COMPANY, Plaintiff-Appellant,v.PUBLIC UTILITY COMMISSION OF the STATE OF OREGON, and itsmembers, Defendants-Appellees. No. 91-35105. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1992.Withdrawn from Submission Oct. 16, 1992.Resubmitted Sept. 22, 1993.Decided Nov. 15, 1993. James H. Clarke, Lane, Powe...
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OPINION INTRODUCTION Appellant Kimberly Trimiew appeals from the district court judgment holding her in contempt for refusing to testify before the grand jury. This court reviews the district court’s adjudication of civil contempt for abuse of discretion. United States v. Grant, 852 F.2d 1203, 1204-1205 (9th Cir.1988). This court has jurisdiction pursuant to 28 U.S.C. § 1291 and 28 U.S.C....
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9 F.3d 955 George PARARAS-CARAYANNIS, Petitioner,v.DEPARTMENT OF COMMERCE, Respondent. No. 93-3352. United States Court of Appeals,Federal Circuit. Nov. 10, 1993. George Pararas-Carayannis, pro se. Robert J. Krask, Atty., Commercial Litigation Branch, Dept. of Justice, of Washington, DC, for respondent. With him on the brief were Frank W. Hunger, Asst. Atty. Gen.,...
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ORDER REMANDING ACTION The. parties to this action are before the court on defendants’ motion to dismiss plaintiffs complaint and plaintiffs motion to remand this case to the California Superior Court. Upon consideration of the briefs and declarations filed in support of and in opposition to these motions, and good cause appearing therefrom, plaintiffs motion to remand is GRANTED. In light of...
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8 F.3d 791 39 Cont.Cas.Fed. (CCH) P 76,588 ALASKA AIRLINES, INC., American Airlines, Inc., ContinentalAirlines Corporation, Delta Air Lines, Inc., EasternAirlines, Inc., Northwest Airlines, Inc., Pan American WorldAirways, Inc., Trans World Airlines, Inc., United Airlines,USAir, Inc., Plaintiffs/Cross-Appellants,v.Roger W. JOHNSON, Administrator, General ServicesAdministration, General Ser...
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9 F.3d 813 42 Soc.Sec.Rep.Ser. 631, Unempl.Ins.Rep. CCH (P) 17552AJim ERICKSON, Plaintiff-Appellant,v.Donna SHALALA,* Defendant-Appellee. No. 92-55882. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 8, 1993.Decided Nov. 16, 1993. Robert Hoad, of counsel, Thomas Garrett Roche, Ernecoff & Roche, San Diego, CA, for plaintiff-appellant. Don...
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Opinion —This petition for a writ of mandate raises an issue of first impression regarding application of the discovery privilege under Evidence Code section 1157, subdivision (a), which protects “proceedings” and “records” of a hospital staff committee “having the responsibility of evaluation and improvement of the quality of care rendered in the hospital. . . .” We hold that the statute...
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Opinion Elizabeth Ellen Cramer appeals from the trial court’s denial of her motion for an order directing the San Bernardino County *75Employees’ Retirement Association to pay pension benefits to her following the death of her former husband. Facts Appellant Elizabeth Ellen Cramer and decedent James Milton Cramer were married in 1959. During the marriage decedent was employed by San Bernardino Co...
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Opinion Albion River Watershed Protection Association and Friends of Salmon Creek (Albion) appeal from a judgment dismissing their petition for writ of mandate. The petition had challenged the approval of a timber harvest plan (THP) by respondent California Department of Forestry and Fire Protection (Forestry). The trial court dismissed the petition, ruling *36 Albion had fai...
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Opinion I. Introduction In this case we hold that multiple monetary sanctions may not be aggregated to meet the $750 threshold for appealability established by Code of Civil Procedure section 904.1, subdivision (k). George Calhoun purports to appeal from an order denying his motion for change of venue and imposing monetary sanctions on his attorney. We dismiss the appeal. II. Ba...
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*68 Opinion —Applying governing precedent, we hold that a defendant is entitled to the benefit of an amendment to an enhancement statute, adding a new element to the enhancement, where the statutory change becomes effective while the case was on appeal, and the Legislature did not preclude its effect to pending cases. We also hold that the People are entitled to an opportunity, o...
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Opinion Suzan Lake appeals from an order sustaining the demurrer of respondents Lakewood Chiropractic Center (Lakewood) and Phillis Hickman 1 to her second amended complaint without leave to amend, and the judgment of dismissal entered thereon. She contends that she was entitled to maintain this tort lawsuit for medical malpractice and damages *49 even though in a previous workers’ compensa...
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*58 Opinion * Emmanuel Strozier appeals from a judgment of conviction entered after a jury found him guilty of attempted murder with intent to inflict great bodily injury. We affirm. Factual Summary Approximately 9 p.m. on March 17, 1989, appellant and some of his friends arrived at the home of “Junior” who was a friend of appellant’s. “Chris,” a friend of Junior’s was already there. Ev...
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Opinion The Environmental Protection Information Center, Inc. (EPIC) appeals from an order dismissing its purported “supplemental petition” for writ of mandate challenging the reapproval of a timber harvest plan (THP). EPIC objects to the dismissal on two procedural grounds. We find no merit to EPIC’s contentions. In affirming the order of dismissal, we hold that, after an alternative wri...
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11 F.3d 853 UNITED STATES of America, Plaintiff-Appellee,v.John Lee MOLINARO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Donald P. MANGANO, Sr., Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Donald P. MANGANO, Sr., Defendant-Appellant. Nos. 90-50131, 90-50133 and 90-50375. United States Court of Appeals,Ninth Circuit. Submitted on the Br...
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11 F.3d 865 62 USLW 2372, Fed. Sec. L. Rep. P 97,820 In re VERIFONE SECURITIES LITIGATION.Martin HALKIN; Michael Minichino; Lois Steen; RichardMarchesi; David J. Steinberg; Chaille Steinberg,Plaintiffs-Appellants,v.VERIFONE INC.; Robertson Stephens, Robertson Stephens andCompany, Defendants-Appellees.Martin HALKIN; Michael Minichino; Lois Steen; RichardMarchesi; David J. Steinbe...
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OPINION After the confirmation of the debtor’s Chapter 11 2 plan, the debtor brought a complaint asserting various lender liability causes of action which arose out of a prepetition lending arrangement. Neither the plan nor the disclosure statement mention these causes of action. The bankruptcy court dismissed the complaint as barred by the doctrines of res judicata ...
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Opinion On December 12, 1991, in two municipal court cases, David Johnson entered a nolo contendere plea to the willful violation of a restraining order (case No. 91R15743) and assault with a deadly weapon (case No. 91R12642). (Pen. Code, §§ 273.6, subd. (a)(2); 245, subd. (a)(1).) In each case, imposition of sentence was suspended and Johnson was placed on 36’ months’ formal probation on the c...
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Charles 0. Draper, personal representative of the estate of llene Draper, appeals from the district court’s dismissal of his action against Harney County, Oregon, 755 F.Supp. 331, alleging that the County, as operator of the Harney County Hospital, violated the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. ...
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Mitchell Terry (Terry) was convicted of possession of 1,000 grams or more of a liquid containing methamphetamine. He appeals, assigning as error the district court’s (1) denial of his motion for judgment of acquittal under Fed.R.Crim.P. 29 and (2) denial of his motion to suppress. I. Denial of Motion to Suppress The crux of Terry’s appeal on the denial of his motion to suppres...
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Anthony Camacho Ignacio (“Ignacio”) appeals from a ruling of the District Court of Guam, Appellate Division affirming his jury conviction for first degree criminal sexual conduct. The jury found that Ignacio had sexually molested a three-year-old girl, and the court sentenced him to seven years imprisonment. We have jurisdiction under 48 U.S.C. § 1424-3(c). Ignacio makes three claims on ap...
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Opinion In this appeal, we consider a challenge to a municipal real estate transfer tax. R. Frederic Fisher and Susan K. Fisher (hereafter Fishers), brought a suit for declaratory relief and tax refund against the City of Berkeley and the County of Alameda (hereafter respondents), alleging that the city’s real estate transfer tax violated section 4 of Proposition 13 (now art. XIII A, § 4,...
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In this claim of negligent infliction of emotional distress, the issue in dispute is whether a pharmacy owes parents a duty of *134care when it fills a prescription for their two-month-old infant. “Damages for severe emotional distress ... are recoverable in a negligence action when they result from the breach of a duty owed the plaintiff that is assumed by the defendant or imposed on the defendan...
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6 Cal.4th 215 (1993) 861 P.2d 1107 24 Cal. Rptr.2d 421 THE PEOPLE, Plaintiff and Respondent, v. JEFFREY DEAN WASH, Defendant and Appellant. Docket No. S004780. Crim. No. 26414. Supreme Court of California. November 18, 1993. *229 COUNSEL John Patrick Dwyer, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant ...
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6 Cal.4th 140 (1993) 862 P.2d 664 24 Cal. Rptr.2d 664 THE PEOPLE, Plaintiff and Respondent, v. ROBERT FREDERICK GARCEAU, Defendant and Appellant. Docket No. S004776. Crim. No. 26410. Supreme Court of California. November 18, 1993. *155 COUNSEL Doron Weinberg, under appointment by the Supreme Court, Denis Kendall and Lynne Shatzkin Coffin for Defendant and Appellant. John K. Van de Kamp and Daniel...
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Opinion We reverse the trial court’s order denying defendant physicians’ motion to compel arbitration in a medical malpractice case. Background According to plaintiff Kate Michaelis’s brief on appeal, she consulted defendant Dr. Janet Schori for medical care related to her pregnancy. She was under the impression Schori would be solely responsible for her care. During her first v...
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Opinion Moisés O. Jaramillo appeals from his conviction of first degree murder. He claims his trial counsel rendered ineffective assistance by “opening the door” to evidence of premeditation. He challenges the constitutional validity of CALJIC No. 2.90, the standard jury instruction on reasonable doubt, in light of the United States Supreme Court’s grant of certiorari on that issue in People ...
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Opinion This is the second of two appeals challenging the manner in which the City of Sacramento (the City) maintains and manages H Street. In Hutchinson v. City of Sacramento (1993) 17 Cal.App.4th 791 [21 Cal.Rptr.2d 779], an appeal resulting from two property owners’ successful petition for writ of mandate, we held the City’s authority to decide whether and when to...
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Ronald Neimi, a sergeant with the California Highway Patrol, appeals from the order denying a new trial and from the judgment against him after a jury found him liable for the false arrest of Brian Larson. Neimi contends that the district court should have instructed the jury on the standard for general Fourteenth Amendment substantive due process claims rather than on the more specific standar...
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This ease arises out of the efforts of a property owner to prevent a natural gas company from entering his property to conduct surveys federal law requires of those carrying natural gas by pipeline. The company brought suit in federal court and obtained an injunction based on a right-of-way agreement it had negotiated in 1960 to build a pipeline. The property owner appeals. We affirm the narrow in...
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In this breach of contract suit, the district court dismissed Arlyn Nordhom’s claim against Ladish Company and Armco, Inc. on res judicata grounds, holding that Nordhorn should have raised this claim in an earlier suit against HITCO, a former sister company of Ladish. Nordhorn appeals. We reverse because Nordhorn’s claim in this case is based on a different contractual relationship and is again...
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Opinion Appellant William Lester Crowles was convicted by a jury on one count of violating Penal Code section 664/Health and Safety Code 1 section 11350, subdivision (a), attempted possession of cocaine. At the sentencing hearing the trial court suspended sentence and placed appellant on three years’ probation. One of the conditions of probation was that appellant spend one yea...
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Opinion This is our second review of this case. In the first (GO10983), we reversed a count of attempted robbery with directions to dismiss because it was a lesser included offense of a completed robbery set forth in another count. This would have potentially reduced Manuel Lopez Calderon’s twenty-three-year, four-month sentence by one year. We remanded for resentencing to allow the court to re...
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Opinion —Defendant Larry Dale Pritchett appeals from an order which “recalled” his sentence pursuant to Penal Code 1 section 1170, subdivision (d) and reinstated the precise sentence he had originally received. Because the appeal has been taken from a nonappealable order, we dismiss. Facts and Procedure The facts adduced at trial established that defendant used a sawed-off shotgun as a cl...
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*182 Opinion In this matter we are called upon to decide whether a tortfeasor seeking partial equitable indemnity may claim the benefit of Civil Code section 1714.1 1 , which imposes financial responsibility upon the parents of an errant minor. We hold that the statute’s provisions do run in favor of the third party tortfeasor, and are not limited to the injured party. We therefore conclude...
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Opinion Appellant Manuel Mata, a Los Angeles police officer, was terminated after being charged in disciplinary proceedings with six counts of misconduct and found guilty of two counts. In this action he sought and obtained a writ of mandate directing respondents City of Los Angeles and its chief of police to reinstate him. He also sought compensatory damages for violation of his civil rights p...
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Petitioner conceded deportability, asked for a six month delay, and got it. She appealed to the Board of Immigration Appeals (BIA), arguing that the immigration judge should have granted her husband’s unadjudi-cated petition to obtain immediate relative preference for her. Her husband had died before the petition was adjudicated. The BIA held that the immigration judge lacked jurisdiction to gran...
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Brenda Linville appeals her sentence under the Sentencing Guidelines after her guilty plea conviction of conspiracy to defraud the U.S. Department of Agriculture (USDA) in violation of 18 U.S.C. § 371. Lin-ville contends that her base offense level under the Sentencing Guidelines should not have been increased pursuant to U.S.S.G. § 2F1.1(b)(3)(B) 1 for violation of administrative pr...
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Opinion This declaratory relief action presents issues relating to the scope of a liability insurer’s duty to defend its insured in an underlying third party lawsuit. The parties before us—carriers who issued comprehensive general liability (CGL) policies and the pesticide manufacturer to which the policies were sold—disagree on the proper use of extrinsic evidence in determining the scope of the...
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Opinion The central issue in this appeal is whether the crime of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) is a lesser and *241 necessarily included offense of willfully and maliciously discharging a firearm at an occupied vehicle (Pen. Code, § 246). 1 We hold assault with a deadly weapon is not necessarily included in the offense of discharging a firearm at an occupied ...
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Opinion Plaintiff and her attorney appeal from an order awarding $3,100 in discovery sanctions to defendants. We modify and affirm the order as to the plaintiff. We reverse as to her attorney. 1 Facts and Proceedings Below Plaintiff, Dalia Ghanooni, sued defendant Super Shuttle and others for personal injuries she suffered on board a Super Shuttle passenger van. Defendants served plaintif...
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Opinion * Real party in interest, Jacqueline Parks-Butcher, claims to have suffered injuries as a result of actions of petitioner, Payless Drug Store. According to Parks-Butcher, Payless’s delay in filling her prescription for an antibiotic, allegedly because Payless mistakenly believed that Parks-Butcher was allergic to the prescribed antibiotic, caused her to suffer a severe infection. Payl...
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*252 Opinion Under Civil Code section 4800, subdivision (a), the value of community assets and liabilities is generally determined as near as practicable to the time of trial. However, on a showing of good cause, the court may value all or any portion of the assets and liabilities at a date after separation and prior to trial. In this case, the trial court denied Ms. Stevenson’s ...
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*220 Opinion —Defendant Arden Van Upp (Van Upp) appeals from the trial court’s judgment in favor of plaintiff Laurence E. Badgley (Badgley). Van Upp raises several contentions on appeal, including the following: (1) the trial court should have sustained her demurrers to Badgley’s complaints on the grounds the subject matter of the complaints was subject to contractual arbitration and (2) the ...
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10 F.3d 626 27 Fed.R.Serv.3d 609 Fred R. GASKELL, et al., Plaintiffs,andRichard A. Canatella, Appellant,v.S.L. WEIR; Leo J. Schiavello; Christina C. Schiavello;Michael D. Meadows; Taylor & Meadows; Kenneth P. Gray,Esq.; Pamela W. Levin; Susan E. Hayes; Thornton, Taylor,Downs & Becker, Defendants-Appellees. No. 92-16769. United States Court of Appeals,Ninth Circuit. ...
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Jose Amador-Galvan and Rodolfo Molina were convicted of conspiracy to possess "with intent to distribute over five kilograms of cocaine in violation of 21 U.S.C. § 846, and possession with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(l)(A)(ii)(II). This opinion addresses the district court’s refusal to disclose the identities of non-witne...
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The Internal Revenue Service appeals from the district court’s judgment on a jury verdict in favor of Lawrence Richey in Rich-ey’s action for return and abatement of civil penalties imposed for preparing false tax returns, pursuant to 26 U.S.C. § 6694. Richey was convicted in 1987 of willfully aiding and abetting the preparation of fraudulent tax returns in violation of 26 U.S.C. § 7206 (affirmed...
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10 F.3d 616 62 USLW 2357 CECELIA PACKING CORPORATION, a California corporation, Plaintiff,Harris Farms, Inc., a California corporation; Kencarol,Inc., a California corporation; John Doe One;John Doe Two, a California corporation;and John Doe Three,Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF AGRICULTURE/AGRICULTURALMARKETING SERVICE; Sunkist Growers, Inc.,Defendants-Appellees. ...
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The government appeals from an order suppressing evidence of a machine gun that was seized during a warrantless search. Permission to search was given by a live-in sitter, whom the judge ruled had neither *1429 actual nor apparent authority to consent, We consider only the requirements of apparent authority. We affirm. I. FACTS Ronald Dearing is the single custodial paren...
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Nilo Cueto pled guilty to one count of attempted possession with intent to distribute methamphetamine and two counts of possession with intent to distribute methamphetamine and cocaine. Cueto raises four challenges to his sentence on appeal: (1) he is entitled to a one-level reduction for acceptance of responsibility because the 1992 amendment to Sentencing Guideline § 3E1.1 should apply retroact...
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North Star Alaska Housing Corporation (North Star) brought this action in district court seeking reformation of an Outlease it had entered into with the United States Army. The district court determined that it had no jurisdiction and dismissed the complaint without prejudice. North Star timely appeals. We have taken this ease en banc to resolve a conflict between North Side Lumber Co. v. Block,...
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Harold Nichols was convicted of one count of conspiracy to defraud the United States, three counts of tax evasion and two counts of using a false social security number. He challenges the district court’s refusal to give a lesser included offense instruction regarding the crime of failure to file a tax return. 1 We affirm. A defendant is entitled to an instruction on a lesser included offense...
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The United States appeals the district court’s downward departure in sentencing James Russell Crook after a plea of guilty to manufacturing 751 marijuana plants, in violation of 21 U.S.C. § 841(a)(1). The district court departed one level based on its finding that Crook believed he was growing the plants for personal use, and one level because Crook lost his family home in civil forfeiture procee...
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9 F.3d 1433 Kenneth R. PALMER, a/k/a Kelly Palmer, Plaintiff-Appellee,v.Timothy SANDERSON and Jane Doe Sanderson, husband and wife;and Dennis Morrisette and Jane Doe Morrisette,husband and wife, Defendants-Appellants. Nos. 92-35290, 92-35311. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 4, 1993.Decided Nov. 23, 1993. Jack L. Burtch, Aberdeen, W...
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10 F.3d 633 62 USLW 2350, 87 Ed. Law Rep. 412 The NATIONAL COLLEGIATE ATHLETIC ASSOCIATION, anunincorporated association, Plaintiff,Michael Alsup, Intervenor,andJerry Tarkanian, and Lois Tarkanian, Counter-Claimants-Appellants,v.Robert F. MILLER, Governor, State of Nevada, et al., Defendants,andThe National Collegiate Athletic Association, Walter Byers,S. David Berst, and Robert Stoup,Coun...
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Opinion Shawn D. was found to have committed burglary. (Pen. Code, §§ 459/460, subd. (a).) He was remanded to the California Youth Authority (CYA) for a maximum period of six years. On appeal, he argues that his confession should have been suppressed because it was involuntary. For reasons we shall explain, we agree. The judgment is reversed. Facts and Procedural Background Henry Han live...
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Opinion —Ramiro Moreno Oseguera (defendant) appeals from the judgment following remand for resentencing after we found in his favor in an earlier appeal. 1 He contends the court erred by failing to direct preparation of a supplemental probation report, and that the court did not state adequate reasons for imposing a consecutive sentence. We affirm. Facts and Procedural History We adopt ...
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Opinion A jury convicted Victor Manuel Solis (Solis) of murder in the second degree of Kenneth O’Brien (O’Brien) (Pen. Code, 2 § 187, subd. (a)) and found Solis had been personally armed with a handgun (§ 12022, subd. (a)(1)). The trial judge sentenced Solis to a total term of 16 years to life. O’Brien was shot by a confederate of Solis. Solis’s conviction was based upon h...
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Opinion This case requires us to make a de novo interpretation of certain language in the Arthur Leonard Marshall Trust. Wells Fargo Bank, as *450 trustee, brought a petition in the probate court for an order construing the trust instrument. (Prob. Code, § 17200, subd. (b)(1).) 1 The probate court ruled that respondent Alisa Marshall (Alisa), the granddaughter of t...
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Appellant Robert Chesney was convicted following a jury trial of knowing conversion of public funds, in violation of 18 U.S.C. § 641, filing false claims, in violation of 18 U.S.C. § 287, and money laundering, in violation of 18 U.S.C. § 1956. We affirm. I Chesney’s convictions stem from an elaborate scheme to defraud the Social Security Administration. Special Agent Joseph Malfero of the Dep...
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Acuna appeals from his sentence imposed under the United States Sentencing Guidelines (Guidelines) for various narcotics and weapons offenses. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I On April 19,1991, Acuna, a California resident, telephoned Geo-Data Chemicals (Geo-Data), ...
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Opinion —This writ proceeding raises the question whether an adult plaintiff, whose claim for damages for childhood sexual abuse lapsed in 1988 under then-governing law, may take advantage of the liberalized statute *283 of limitations enacted in 1990. We have concluded that the statutory amendments of 1990 did not revive previously lapsed claims and that this action is there...
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Opinion A jury convicted Anna Jeannette Humiston of conspiracy to commit murder (Pen. Code, 2 § 182, subd. (a)(1)) and first degree murder (§ 187, subd. (a)). The court sentenced Humiston to prison for 25 years to life on each count but stayed imposition of sentence on the conspiracy count under section 654 and ordered that she be housed at the California Youth *466 ...
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Opinion Pursuant to rule 62, California Rules of Court, we transferred this matter from the appellate department of the superior court in order to settle an important question of law. (1) Contrary to the appellate department, we conclude that after convicting a defendant of a traffic infraction the trial court is not required to state its reasons for denying the defendant’s request for traffic ...
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Opinion The Department of Motor Vehicles (DMV), pursuant to Vehicle Code section 13353.2, issued an order suspending the driver’s license of Glen McNabb on the grounds that he had driven with a blood-alcohol concentration greater than .08 percent. 1 McNabb challenged the order at a DMV administrative hearing. The hearing officer determined that the evidence supported the order ...
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Opinion In this case we conclude that an order by the juvenile court under Welfare and Institutions Code section 782 1 dismissing a delinquency petition against a minor in “the interests of justice” must be reversed because the trial court failed to state its reasons in the minutes, as required by rule 1493 of the California Rules of Court. Factual and Procedural Summary On May 29, 1992, ...
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Opinion This is an appeal from the trial court’s judgment on a petition for court supervision of the winding up of a dissolved law corporation, the two shareholders of which were appellant Norman M. Dolin and respondent Daniel L. Rothman. In early 1982, appellant and respondent were each 50 percent shareholders of Dolin & Rothman, a professional corporation (the Firm). By mutual agre...
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*737 Opinion Wilshire Westwood Associates and Platt Development Corporation appeal from summary judgment entered against them in their action seeking damages from former lessees for the costs of abating soil contamination on a parcel of property. They assert error in the court’s grant of summary adjudication of two issues: that operation of a gasoline service station is not an ul...
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Opinion Here we consider whether a court has the authority to order a deponent to perform a physical reenactment of an event at a deposition. We hold that a court is without any such authority and shall grant a writ of mandate. On May 4, 1990, the five-week-old infant daughter of petitioners, William and Margery Stermer, died when a car seat in which she was riding allegedly failed t...
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Opinion Appellants the City of Poway (City) and CF Pomerado (Developer) appeal from the judgment in favor of respondent John Housley (Housley). The jury awarded $40,000 against City as damages for inverse *805 condemnation and $112,452 against Developer for fraud damages. The central issue on appeal is whether the damage instructions were correct. 1 I. Fact...
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Opinion Plaintiff Marie Heacock and defendants Ivor Sack and Ivorette-Texas, Inc. (collectively Sack) appeal from a judgment awarding Heacock nominal compensatory damages of $1 and punitive damages of $150,000 arising out of Heacock’s expulsion from a joint venture with Sack and defendant David Pain. We affirm the judgment of liability against Sack and the judgment in favor of Pain. We conclude...
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20 Cal.App.4th 760 (1993) 25 Cal. Rptr.2d 192 THE PEOPLE ex rel. JOHN GARAMENDI, as Insurance Commissioner, etc., Plaintiff and Respondent, v. AMERICAN AUTOPLAN, INC., et al., Defendants and Appellants. Docket No. B070317. Court of Appeals of California, Second District, Division Five. November 24, 1993. *764 COUNSEL Rosner & Goodman and Dennis Neil Jones for Defendants and Appellants. Daniel...
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10 F.3d 1448 Ronald John SMITH, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.HARTFORD ACCIDENT & INDEMNITY COMPANY, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.INSURANCE COMPANY OF NORTH AMERICA, Plaintiff-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellant.Ronald John SMITH; Hartford Accident & Indemnity Company,Plaintiffs-Appellees,v.HU...
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Khalid Alexander appeals the district court’s dismissal of his action for failure to pay a five dollar partial filing fee. We review the district court’s decision to impose a partial fee pursuant to the in forma pauperis statute, 28 U.S.C. § 1915, for an abuse of discretion. See O’Loughlin v. Doe, 920 F.2d 614, 616 (9th Cir.1990). Although “[district courts enjoy wide discretion in deciding whe...
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The issue in this case is whether the ex post facto clause is violated when a statutory amendment that increases a penalty to be imposed upon the revocation of supervised release is applied in a case in which the underlying offense was committed before the amendment was adopted but the conduct that led to revocation of supervised release occurred afterwards. We conclude that applying the amendm...
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OVERVIEW The Huffs, pro se plaintiffs, filed a seven count complaint against the IRS. Counts I-III are best characterized as challenges to the procedural validity of tax hens under 28 U.S.C. § 2410. Count TV most resembles a request for a refund pursuant to 28 U.S.C. § 1346(a)(1). Counts V-VII seek damages for unauthorized disclosures of tax return information under 26 U.S.C. §§ 6103 and 7...
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*439 Opinion This suit is the result of an automobile accident involving a truck owned by the City of Los Angeles (City). Liability for the accident was admitted by the City and the trial was limited to the issue of damages. A jury awarded the plaintiff $5.5 million in damages. On motion of the City the trial court conditionally granted a new trial in the event the plaintiff did not agree to ...
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ORDER DENYING PLAINTIFF’S REQUEST FOR APPOINTMENT OF COUNSEL Plaintiff has filed a “Request for Court Appointed Attorney in Civil Action.” For the following reasons, the court hereby DENIES plaintiffs request. I. Procedural History On August 12, 1993, plaintiff filed a complaint for damages and injunctive relief, alleging civil rights causes of action under 42 U.S.C. §§ 1983,1985, and 1986, consti...
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OPINION Shirley F. Crowell, Alan Julian and Lora G. Horner appeal from the sentences imposed upon them after their convictions of conspiracy and possession with intent to distribute dilaudid, a prescription drug which contains hydromorphone, a Schedule II controlled substance. 21 U.S.C. §§ 841(a), 846. The single question we address in this opinion is whether the district court shall use ...
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OPINION William T. Mayo appeals a denial by the district court of a preliminary injunction sought by him against the United States Government Printing Office (the GPO) enjoining the GPO from denying Mayo direct personal access to the GPO’s electronic Federal Bulletin Board containing Supreme *1451 Court slip opinions. We affirm the judgment of the district court. FACTS According to Mayo’s...
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10 F.3d 1457 Lawtis Donald RHODEN, Petitioner-Appellant,v.James ROWLAND, Director, California Department ofCorrections, et al., Respondents-Appellees. No. 91-56350. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 1, 1993.Decided Nov. 29, 1993. Carl R. Katz, Denise Meyer and Charles D. Weisselberg, The Law Center, University of Southern California...
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OPINION Vollrath Company (‘Vollrath”) appeals the district court’s order granting the defendants’ motion for judgment notwithstanding the verdict in Vollrath’s antitrust action. Vollrath contends there was sufficient evidence from which the jury could have concluded that the defendants violated sections 1 and 2 of the Sherman Antitrust Act by a predatory pricing scheme for stainless steel...
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Opinion Defendant and appellant Ralph G. Allen (Allen) appeals the judgment entered following his conviction by jury of three counts of *849 misdemeanor failure to file California personal income tax returns in violation of California Revenue and Taxation Code section 19401, subdivision (a). 1 We affirm based on our finding that willfulness is not an element of s...
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Opinion This writ proceeding was brought after the respondent court refused to honor a motion to a trial filed under Code of *862 Civil Procedure section 170.6. 1 The motion was made after we reversed an earlier judgment and remanded the case for an evidentiary hearing and determination of a factual issue. We issued an alternative writ and, following full briefing and oral argument, we now ...
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510 U.S. 27 (1993) IZUMI SEIMITSU KOGYO KABUSHIKI KAISHA v. U. S. PHILIPS CORP. et al. No. 92-1123. Supreme Court of United States. Argued October 12, 1993. Decided November 30, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *28 Herbert H. Mintz argued the cause for petitioner. With him on the briefs were Robert D. Litowitz, Jean Burke Fordis, David S. Forman, and ...
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Donald Lake Simpson (Simpson) and Rodolfo Molina, Jr. (Molina) appeal their convictions and sentences for conspiracy to distribute and to possess with intent to distribute 5 kilograms or more of cocaine in violation of 21 U.S.C. § 846. Simpson also appeals his conviction and sentence for possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. I. Conspiracy: Failure...
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10 F.3d 663 UNITED STATES of America, Plaintiff-Appellant,v.Christopher FRUSHON, Defendant-Appellee.UNITED STATES of America, Plaintiff-Appellee,v.Christopher FRUSHON, Defendant-Appellant. Nos. 93-10042, 93-10045. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 5, 1993.Decided Nov. 30, 1993. Jennifer Levy, Asst. U.S. Atty., Washington, DC, for pla...
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The Equitable Life Assurance Society of the United States appeals the district court’s judgment in favor of Morris J. Taft. The district court held that Equitable abused its discretion in violation of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461, by terminating Taft’s disability benefits. Because we find that the district court erred at trial by examining evi...
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10 F.3d 667 24 Envtl. L. Rep. 20,530 WESTLANDS WATER DISTRICT; San Benito County Water District,Plaintiffs-Appellants,v.FIREBAUGH CANAL, Firebaugh Canal Water District; CentralCalifornia Irrigation District; Columbia Canal Co.; SanLuis Canal Co.; Friant Power Authority; Friant Water UsersAuthority; City of Fresno; Madera Irrigation District;Stone Corral Irrigation District; Floren...
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9 F.3d 1464 9 IER Cases 285 AMERICAN FEDERATION of GOVERNMENT EMPLOYEES, AFL-CIO;Benita Mays; American Federation of GovernmentEmployees, AFL-CIO (AFGE), Plaintiffs-Appellees,v.Rob ROBERTS, Warden; Michael Quinlan; Janet Reno,* Attorney General of the UnitedStates, Defendants-Appellants. No. 92-16298. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1,...
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OPINION Paul G. Shultz appeals the district court’s judgment in favor of the government in his action to quiet title under 28 U.S.C. § 2409a *653 to a public light (or rights) of way across Fort Wainwright. He argues that the district court erred in finding that no rights of way existed within the meaning of 43 U.S.C. § 932 (“RS 2477 rights of way”), 1 or that, if ...
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Opinion George Baker appeals from dismissal of his action after the court sustained without leave to amend the demurrer of Mid-Century Insurance Company to Baker’s first amended complaint. Baker sought to hold Mid-Century liable for payment of attorney fees he incurred in prosecuting a personal injury action against Mid-Century’s insured, Bruce Thompson. He alleged the prior action was se...
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Opinion Elliott Friedman (appellant), defendant in a “Marvin” action (Marvin v. Marvin (1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] [Marvin /]), appeals from an order awarding temporary spousal support pending trial to Terri Friedman (respondent), plaintiff in that action. We reverse. I. Background A. Procedural History On January 13, 1992, respondent filed a complaint, ...
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Opinion In this appeal by the minors from juvenile court orders following a disposition hearing (Welf. & Inst. Code, §§ 360, 395; further section references are to this code), we consider the appropriate standard of review to apply to orders denying placement of minors with relatives. (§ 361.3.) We shall conclude the abuse of discretion standard is appropriate in reviewing such orders. Ap...
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Opinion We are faced here with an interesting paradox. It is well established a capital offense is one which carries the maximum possible penalty of death. It is also well established a person under the age of 18 years cannot, by law, be punished with the death penalty. Petitioner asks us to hold that Kim—a minor—faces a capital offense because, although he cannot, by law, be punished wit...
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Opinion Jose Arranda Lopez appeals his conviction of conspiracy to sell methamphetamine (Pen. Code, § 182, subd. (a)(1); Health & Saf. Code, § 11379) and an enhancement based on a conspiracy to sell more than three pounds of methamphetamine (Health & Saf. Code, § 11370.4, former subd. (b)(1)). On appeal, Lopez contends the enhancement should be stricken because there was no evidence of an...
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*869 Opinion Petitioners Albert G. Lew and B. K. Lew, owners of an apartment building in Berkeley, seek a peremptory writ of mandate to compel respondent superior court to set aside its judgment in favor of 75 plaintiffs in a consolidated small claims matter. We issued an alternative writ at the direction of the Supreme Court and, having considered the merits of the petition, now...
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Opinion Angelo Valencia pleaded nolo contendere to transporting cocaine (Health & Saf. Code, § 11352, subd. (a)) and was sentenced to prison. He appeals, contending his motion to suppress (Pen. Code, § 1538.5) was erroneously denied. We reject his contentions and affirm. Facts Officer Gray of the California Highway Patrol (CHP) testified that around 8:40 a.m. on January 24, 1991...
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Opinion —We hold here that a person certified to use chemical Mace in self-defense, but who does so not in self-defense, may be prosecuted *957 under the special provisions of Penal Code 1 section 12403.7, subdivision (a)(8), but not under the more general provisions of section 375, subdivision (d). Facts and Procedural Background On the night of April 6, 1991, appellant was working a...
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We are compelled to reverse because of an error in the duress instruction. I. Facts Solano rented a storage locker for a methamphetamine laboratory. His defense was duress, that a man whom he reasonably feared would otherwise kill him forced him to rent the locker. The jury acquitted him of two counts of manufacturing, but convicted him of six counts of attempting to manufacture and possessio...
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This is an appeal from the district court’s denial of a petition for habeas corpus filed pursuant to 28 U.S.C. § 2254 (1988). We have jurisdiction under 28 U.S.C. § 1291 (1988), and we affirm. We hold that the Nevada Board of Pardons Commissioners (“the Board”) did not deny Robert Maxwell Kelch, a Nevada state prisoner, substantive due process under the Fourteenth Amendment when it rescinded it...
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This appeal carries us into uncharted waters concerning the authority conferred upon administrative officers ,to impose sanctions against a claimant who in bad faith initiates or continues workers compensation proceedings under the Longshore & Harbor Workers’ Compensation Act (“LHWCA”). We conclude that sanctions may not be imposed by an administrative officer under the LHWCA and affirm the ord...
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12 F.3d 154 Verna EDWARDS, Guardian Ad Litem for Verna Edwards, PamelaEdwards and Ericka Edwards; Barbara Moore, Guardian AdLitem for Rebiana Robi; Derral Robi, Delisha Jaa andRayleisha Taylor et al., Plaintiffs-Appellees,v.John HEALY, in his official capacity as Acting Director ofthe California Department of Social Services; Thomas Hayes,in his official capacity as Director, California Dep...
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On this appeal we decide whether citizens may bring a suit seeking penalties against a violator of the Clean Water Act, 38 U.S.C. § 1251 et seq. (Act), when the Environmental Protection Agency (EPA) has already instituted an administrative compliance action in the same matter. The district court had jurisdiction over the Washington Public Interest Research Group’s (WashPIRG) citizen ...
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The appellant, David Wyncoop, embezzled approximately $65,000 from Trend College, a private technical school where he was employed. Based on this conduct, he was indicted on one count of theft of federal funds in violation of 18 U.S.C. § 666. After the district court refused to dismiss the indictment, appellant entered a conditional guilty plea, reserving the right to appeal the denial of his mot...
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11 F.3d 114 144 L.R.R.M. (BNA) 2824, 127 Lab.Cas. P 10,964 TOYOTA LANDSCAPING COMPANY, INC., Plaintiff-Appellant,v.SOUTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS;Affiliated Laborers Local Union 652; AffiliatedLaborers Local Union 300; AffiliatedLaborers Local Union 1082, etal., Defendants-Appellees. Nos. 91-55721, 91-55986. United States Court of Appeals,Ninth Circuit. Arg...
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6 Cal.4th 342 (1993) 862 P.2d 723 24 Cal. Rptr.2d 723 In re SANDY LEE MOSER on Habeas Corpus. Docket No. S026837. Supreme Court of California. December 2, 1993. *344 COUNSEL Richmond M. Flatland, under appointment by the Supreme Court, Riordan & Rosenthal, Dennis P. Riordan and Dylan L. Schaffer for Petitioner. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney G...
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6 Cal.4th 367 (1993) 862 P.2d 739 24 Cal. Rptr.2d 739 THE PEOPLE, Plaintiff and Respondent, v. GREGORY McCLELLAN, Defendant and Appellant. Docket No. S028225. Supreme Court of California. December 2, 1993. *369 COUNSEL Florence V. Hoffman, under appointment by the Supreme Court, and Thomas W. Condit, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorne...
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6 Cal.4th 322 (1993) 862 P.2d 710 24 Cal. Rptr.2d 710 THE PEOPLE, Plaintiff and Respondent, v. ALBERT GREENWOOD BROWN, JR., Defendant and Appellant. Docket No. S010071. Supreme Court of California. December 2, 1993. *326 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Steffan Imhoff, Nancy Aspaturian, Jessica K. McGuire and Musawwir Spiegel, Deputy State Pu...
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Opinion Automotive Management Group, Inc. (AMG) protested its termination as a franchised dealer of respondent/real party in interest Mitsubishi Motor Sales of America, Inc. (MMSA). AMG’S protest was rejected because it was untimely. AMG petitioned for a writ of mandate. The trial court found that substantial evidence supported the administrative law judge’s (ALJ) determination that AMG’s prote...
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Opinion Plaintiff Department of Health Services, through its director, appeals from a judgment entered in favor of defendants Nathaniel J. Friedman and Nathaniel J. Friedman, Inc. (referred to collectively as respondent) after the trial court granted a motion in limine for nonsuit. It contends: “Reviewing the entire statutory scheme of Welfare and Institutions Code § 14124.70 e...
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Opinion The People appeal a judgment of dismissal after the court determined an embezzlement by a tenant could not be charged under Penal Code 1 section 484, the general theft statute, because the rule that a specific statute controls over general statutes requires prosecutors to charge such offenses as violations of section 507. For the following reasons, we reverse the judgme...
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11 F.3d 129 17 Employee Benefits Cas. 2239 Janelle Susan SPAIN, an individual, and Jenna MargaretSpain, a minor, by and through her Guardian adLitem, Janelle Spain, Plaintiffs-Appellants,v.AETNA LIFE INSURANCE COMPANY, Defendant-Appellee. No. 93-55303. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1993.Decided Dec. 6, 1993. Sharon J. Arki...
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Victorino Villacrusis, Philippine Goods, Inc., and Transamerica Corporation (collectively PGI) appeal from the order of the Supreme Court of the Commonwealth of the Northern Mariana Islands (CNMI Supreme Court) asserting jurisdiction over an appeal pending before this court, Wabol v. Villacrusis, 898 F.2d 1381 (9th Cir.), as amended, 908 F.2d 411 (9th Cir.1990), as a...
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At the trial of these Appellants and others for charges of using or carrying a firearm during the commission of various drug trafficking offenses under 18 U.S.C. § 924(c), the district court did not instruct the jury that the use or carrying of the firearm had to be “in relation to” the drug offenses. We hold the failure to instruct the jury on this element of the crime was reversible error. BA...
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10 F.3d 1478 73 A.F.T.R.2d 94-501, 62 USLW 2375, 94-1USTC P 50,074,30 Collier Bankr.Cas.2d 440, 25 Bankr.Ct.Dec. 25,Bankr. L. Rep. P 75,671 In re DEER PARK, INC., aka Deer Park Ski Area, Debtor,UNITED STATES INTERNAL REVENUE SERVICE, Appellant,v.CREDITORS COMMITTEE; Deer Park, Inc., Appellees. No. 92-15802. United States Court of Appeals,Ninth Circuit. Argued and Submitted O...
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Opinion In this case, Deborah C. appeals certain juvenile court orders, including an order terminating her parental rights to her son, Matthew C. Prior to the Welfare and Institutions Code section 366.26 hearing at which Deborah’s parental rights were terminated, the juvenile court issued an order terminating reunification services for Deborah, and setting the section 366.26 hearing. The issue we...
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Opinion In this case we determine whether the juvenile court properly declined to order either reunification services for Javan W. with his biological son, Zacharia D., or Javan’s custody of Zacharia. In particular, we decide whether one who is a biological but not a presumed father is entitled to reunification services under Welfare and Institutions Code section 361.5, and whether such services ...
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Opinion We granted review to decide whether an agreement between law partners is enforceable if it requires withdrawing partners to forego certain contractual withdrawal benefits if they compete with their former law firm. We conclude that an agreement among law partners imposing a reasonable toll on departing partners who compete with the firm is enforceable. We reverse the judgment of the Court...
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*950 Opinion Facts and Procedural History The County of Stanislaus brought an action on behalf of Kayla Marie L. (hereinafter Kayla) against Robert Wayne L. (hereinafter Robert) to establish that Robert is the father of Kayla, and to obtain reimbursement from Robert for public assistance moneys allegedly paid by the county for the support of Kayla. Robert, the alleged father...
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*1019 Opinion The issue in this case is whether a motel employee who is required to live on the motel premises and who, on average, works no more than five hours a day, must be paid for the entire time he spends at the motel or simply the time he provides actual services. We will conclude the employee must be paid only for the time he provides actual services. I. Factual and...
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Opinion A jury, convicted defendant and appellant Lee Rivers of robbery (Pen. Code, § 211) 1 ; defendant having waived a jury on enhancement allegations, the court then found true the allegation that defendant had suffered a prior serious felony conviction within the meaning of section 667, subdivision (a). Defendant was sentenced to a total term of eight years, comprised of the three-year mi...
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10 F.3d 1485 63 Fair Empl.Prac.Cas. (BNA) 738,63 Empl. Prac. Dec. P 42,715, 62 USLW 2379 Frank ATONIO; Alan Lew; Curtis Lew; Eugene Bacliq;Joaquin Arruiza; Randy Del Fierro; BarbaraViernes; Clarke Kido; Lester Kuramoto;Margaret Baclig, Plaintiffs-Appellants,v.WARDS COVE PACKING COMPANY, INC., a foreign corporation;Bumble Bee Seafoods, Inc., a domestic corporation;Columbia Wards Fish...
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10 F.3d 1505 TOWN OF NORTH BONNEVILLE, a municipal corporation of theState of Washington, Plaintiff-Appellant,v.Howard A. CALLAWAY, Secretary of the Army; William C.Gribble, Jr., Lt. Gen., U.S.A., Chief, United States ArmyCorps of Engineers; Harvey P. Arnold, Col., U.S.A.,District Engineer, Portland District, United States ArmyCorps of Engineers, and the United States of America,Defendants-A...
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Opinion The Eighth Amendment to the United States Constitution, which prohibits the infliction of “cruel and unusual punishments,” imposes various restrictions on the use of the death penalty as a punishment for crime. One such restriction is that any legislative scheme defining criminal conduct for which death is the prescribed penalty must include some narrowing principle that channels jury dis...
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6 Cal.4th 494 (1993) 862 P.2d 779 24 Cal. Rptr.2d 779 THE PEOPLE, Plaintiff and Respondent, v. DENNIS DUANE WEBB, Defendant and Appellant. Docket No. S006938. Supreme Court of California. December 7, 1993. *502 COUNSEL Harry M. Caldwell and Anthony Miller, under appointments by the Supreme Court, for Defendant and Appellant. *503 Daniel E. Lungren, Attorney General, George Williamson, Chief Assis...
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Opinion James William Herring appeals from a judgment following conviction by jury that he committed assault with intent to commit rape (Pen. Code, 1 § 220), attempted rape (§§ 664/261, subd. (a)(2)), and sexual battery (§ 243.4), and the trial court’s finding that he had suffered a prior conviction for first degree burglary, a serious felony within the meaning of section 667, subdivision (a)...
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Opinion Convicted by jury of first degree murder (Pen. Code, 1 §§ 187, 189; count I) with two special circumstances found true (§ 190.2, subds. (a)(6) and (a)(17)), arson causing great bodily injury (§ 451, subd. (a); count II), arson of an inhabited structure (§451, subd. (b); count III), explosion of a destructive device causing death (§ 12310, subd. (a); count IV), and explosion of a destr...
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Opinion The Workers’ Compensation Appeals Board (Board) upheld a determination by a workers’ compensation judge (WCJ) that applicant, Jerry D. Fisk, had sustained new and further industrial disability involving his heart and vascular system but was not entitled to further medical treatment. We have concluded that the refusal to award further medical treatment was erroneous and that the Board’s ...
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Opinion Vincent B., the father of Clara B., appeals a judgment under Welfare and Institutions Code2 section 300, subdivisions (b) and (d), declaring Clara a dependent of the San Diego County Juvenile Court. With respect to a finding that he sexually abused Clara, Vincent raises insufficiency of the evidence arguments, including the arguments it was error to admit hearsay statements made by Clara b...
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Opinion C. Robert and Joan Karl (plaintiffs) sued defendant Commonwealth Land Title Insurance Company (insurer), alleging that insurer had wrongfully failed to pay a claim on their title policy, to wit, a tax lien purportedly senior, and hence threatening, to plaintiff’s trust deed. Insurer moved for summary judgment, arguing plaintiffs had not suffered any loss insured by the policy beca...
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Opinion A jury convicted appellant of making “terrorist threats” (Pen. Code, 1 § 422; counts 5 and 6), intimidating witnesses (§ 136.1, subd. (c)(1); counts 7 and 8), being a felon in possession of a firearm (§ 12021, subd. (a); counts 9 and 10) and found true firearm use (§ 12022.5; counts 5, 6, 7, and 8) and prior felony conviction allegations (§§ 667.5, subd. (b) and 667, subd. (a)). 2 A...
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12 F.3d 1464 Wilfredo REYES and Bernardita Reyes, Plaintiffs-Appellants,v.ATLANTIC RICHFIELD COMPANY, ARCO Petroleum Products Co.,Terry Firestone, Edward Loza, T.R. Murphy, NancyDicks, Cynthia Weston, and Does 1through 200, inclusive,Defendants-Appellees. No. 91-56106. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 6, 1992.Decided Dec. 8, 1993. 1...
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In 1981 Roger Walters approached a 13-year old girl and lured her into his vehicle by offering her money to help him find a fictitious white dog. He then kidnapped, raped, and sodomized the girl. In 1987, not long after having been released from prison for these crimes, Walters approached a 13-year old girl and attempted to lure her into his vehicle by offering her money to help him find a fictiti...
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12 F.3d 1474 Gregorio JIMENEZ, Petitioner-Appellant,v.E.R. MYERS, Warden; Attorney General of California,Respondents-Appellees. No. 91-56476. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 2, 1993.Decided Dec. 8, 1993. Howard C. Cohen, Appellate Defenders, Inc., San Diego, CA, for petitioner-appellant. Peggy S. Ruffra, Deputy Atty. Gen., ...
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Opinion After the municipal court denied appellant’s motion to quash and traverse a search warrant (Pen. Code, § 1538.5, subd. (f)), appellant entered a “certified plea” of guilty, 1 and the municipal court transferred the matter to the superior court, which then sentenced appellant. We hold that, pursuant to subdivision (m) of section 1538.5, this court lacks jurisdiction to r...
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Opinion In this appeal we consider the authority of the State Controller (Controller) to refuse to implement salary reductions established in 1991 by the Department of Personnel Administration for certain employees of the state who are not entitled to engage in collective bargaining under the Ralph C. Dills Act. 1 (Gov. Code, § 3512 et seq., especially § 3524 [unless otherwise ...
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Opinion Plaintiff and appellant, Freedom Financial Thrift & Loan (Freedom), appeals from a judgment of dismissal following the sustaining of a demurrer to its original complaint filed by defendant and respondent, Golden Pacific Bank (Golden). This case presents the issue whether a second lending institution, not a party to the original loan, can be responsible for a deficiency in the payo...
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Appellant Christine Holt Spinelli sued claiming she was fired in retaliation for exercising her rights under ERISA. We consider whether she was entitled to a jury trial. I Prior to her discharge, Spinelli served as a bartender at the Gold Coast Hotel and Casino in Las Vegas, Nevada. On July 19, twelve days before being fired, she wrote a letter to Michael Gaughan, the managing partner...
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6 Cal.4th 539 (1993) 863 P.2d 167 25 Cal. Rptr.2d 97 JORGE RAMIREZ, a Minor, etc., Plaintiff and Appellant, v. PLOUGH, INC., Defendant and Respondent. Docket No. S029777. Supreme Court of California. December 9, 1993. *542 COUNSEL Leonard & Lyde and Robert L. Davis for Plaintiff and Appellant. Edward M. Chen, Robin S. Toma, Paul L. Hoffman, Mark D. Rosenbaum, Esteban Lizardo, Arthur H. Bryant...
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Opinion We granted review in this case to resolve a conflict among the Courts of Appeal on the question whether an abstract of judgment and a state prison commitment form, considered in light of the unrebutted presumption that an official duty is regularly performed (Evid. Code, § 664), constitute sufficient evidence to support a finding that a defendant completed a prior prison term for purposes...
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Opinion Penal Code section 12022.11 permits the imposition of an additional two-year term (enhancement) to be served consecutively to the term being imposed for a criminal offense (secondary offense), and for consecutive service of the secondary offense term, if the defendant committed the secondary offense while on bail or own recognizance release pending trial or appeal on another charge (primar...
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MEMORANDUM ORDER ON MOTION TO DISMISS Failed bar examination applicants are continually looking for ways to bring their grievances to a court other than the admitting authority. This is one of those back-door attempts, plaintiff being a failed applicant for the California bar examination. BACKGROUND This is a diversity action against the National Conference of Bar Examiners (NCBE). Defendan...
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Jerald Oakes, Jr. appeals his mandatory minimum sentence of five years imprisonment for violating 21 U.S.C. § 841(a)(1), 21 U.S.C. § 841(b)(l)(B)(vii). Oakes, a first offender, argues (1) that the government violated his due process and equal protection rights by prosecuting his ease in federal court; and (2) that his sentence violates the Eighth Amendment because it is disproportionate to his pe...
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Kenneth William Brown, an Oregon state prisoner, appeals the dismissal of his federal petition for a writ of habeas corpus. The district court dismissed Brown’s petition because he had procedurally defaulted on his state court remedies by failing to present his federal claims to the Oregon Supreme Court for review. We reverse. Brown filed his federal habeas petition on January 24,1990. As of th...
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concurring in part and dissenting in part: Because I believe the majority opinion fails to perceive the Ex Post Facto Clause implications of the enhanced sentence imposed on Morales, I must respectfully dissent. Implicit in the majority’s approach to Morales’s challenge to the length of his sentence is the idea that he actually committed, and was sentenced for, one, big ongoing offense. Given the ...
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12 F.3d 1485 62 USLW 2373, 23 UCC Rep.Serv.2d 150 Patrick J. MURPHY, et al., Plaintiffs-Appellees,v.FEDERAL DEPOSIT INSURANCE CORPORATION, et al.,Defendants-Appellants.Patrick J. MURPHY, an Individual; Murphy's Markets, Inc., aCalifornia Corporation; Ramsey Marketing and Management Co.("Ramco"); aka Ramsay Marketing and Management Co., aCalifornia Corporation, Plaintiffs-Appellants,v.FE...
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11 F.3d 900 62 USLW 2395, 24 Envtl. L. Rep. 20,238 NORTHWEST ENVIRONMENTAL ADVOCATES, A Non-Profit OregonCorporation and Nina Bell, Plaintiffs-Appellants,v.CITY OF PORTLAND, Defendant-Appellee. No. 92-35044. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 6, 1993.Decided Dec. 10, 1993. 1 Patrick A. Parenteau, Perkins Coie, Portland, OR, f...
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Opinion Following settlement of a lawsuit against its insureds, Anton and Cynthia Berkovich, Golden Eagle Insurance Company initiated this action against the Berkoviches and Foremost Insurance Company for equitable contribution and subrogation. The Berkoviches filed a cross-complaint seeking reimbursement from Foremost for the amount they contributed to the settlement of the underlying su...
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Opinion The issue presented in this writ proceeding is whether same gender sexual harassment may be the basis of a cause of action for sexual harassment in violation of the Fair Employment and Housing Act. (Gov. Code, § 12940, subd. (h).) After review, we answer this question in the affirmative and issue a writ of mandate directing respondent superior court to vacate its orders sustaining...
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510 U.S. 1023 Key Tronic Corp.v.United States et al.; andStanton Road Associatesv.Lohrey Enterprises, Inc., et al. No. 93-376. Supreme Court of United States. December 13, 1993. 1 Appeal from the C. A. 9th Cir. 2 Certiorari granted. Reported below: 984 F. 2d 1025 (first case) and 1015 (second case). ...
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Marian Aldan-Pierce, Plaintiff-Appellant, appeals from a final judgment of the Supreme Court of the Commonwealth of Northern Mariana Islands (“CNMI Supreme Court”) reversing the judgment of the Commonwealth of Northern Mariana Islands Superior Court (“CNMI Superior Court”) in favor of Aldan-Pierce in a title dispute. We reverse and reinstate the CNMI Superior Court’s judgment. *924 ...
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The case is remanded to the district court for the limited purpose of reexamining the admissibility of the expert testimony offered by the defendant in light of Dauberb v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. -, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In complying with this mandate, the district court may hold such hearings as it deems appropriate, and shall enter an appropriate order,...
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with whom Justice O’Connor and Justice Kennedy join, dissenting. Insurance companies hold more than $332 billion in their general accounts pursuant to group annuity contracts with pension plans. See American Council of Life Insurance, 1993 Life Insurance Fact Book Update 27. Today, the Court abruptly overturns the settled expectations of the insurance industry by deeming a substantial portion of t...
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510 U.S. 43 (1993) UNITED STATES v. JAMES DANIEL GOOD REAL PROPERTY ET AL. No. 92-1180. Supreme Court of United States. Argued October 6, 1993. Decided December 13, 1993. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *44 *45 KENNEDY, J., delivered the opinion for a unanimous Court with respect to Parts I and III, and the opinion of the Court with respect to Parts II and I...
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Opinion We find the trial court abused its discretion in denying appellants’ motion under Code of Civil Procedure 1 section 473 (“The court may . . . relieve a party . . . from a[n] . . . order . . . taken against him . . . through his . . . mistake, inadvertence, surprise or excusable neglect.”). Factual and Procedural Background Christopher Bonzer (respondent) was promoted from police o...
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Opinion Bernard Teamer contends his conviction of vehicular burglary must be reversed because the only felony he intended to commit when he broke into a car was the theft of the car he broke into. We disagree, and therefore affirm his conviction. Facts At about 8:30 p.m. one evening, Valencia Oldham parked her red Nissan in front of her house, locked the car, went into her house and ultimat...
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Opinion During 1984-1986, plaintiff Marc D. Wilson played quarterback for the Los Angeles Raiders. In the off-season during those years, *1443 Wilson lived in Washington State and thus was not a California resident for California income tax purposes. However, because Wilson’s income from his Raiders contract derived from a California source, he paid California income tax on a...
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Opinion I Relocation Assistance Introduction In February of 1986, appellant California Department of Transportation (Caltrans) acquired by condemnation property belonging to respondent United Auto Workers’ Local 887 (the UAW), paying $1.275 million. The property was acquired for the Century Freeway, a project which was partially federally funded. 1 Under bo...
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*1485 Opinion A jury convicted Gary Anthony Maestas (appellant) and Lynton Young (appellant) of assault with a deadly weapon (Pen. Code, 1 § 245, subd. (a)(1)) causing great bodily injury. (§ 12022.7.) Appellant Maestas admitted a state-prison prior-conviction allegation (§ 667.5, subd. (b)) and the trial court found true 2 a serious-felony-conviction allegation. (§ 667, subd. (a).) Appel...
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Reverend In Gun Choe has lived in the United States as a legal permanent resident since 1982. In 1988, however, the Immigration and Naturalization Service (“INS”) began deportation proceedings against Choe. The Immigration Judge terminated the proceedings; the Board of Immigration Appeals (“BIA”) reversed the decision of the Immigration Judge and ordered Choe deported. The INS claimed that when Ch...
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*598Opinion In this death penalty case, a jury convicted defendant Armenia Levi Cudjo of the first degree murder of Amelia P. (Pen. Code, §187; all further statutory references are to this code unless otherwise indicated); it found that defendant used a deadly weapon to commit the murder (§ 12022, subd. (b)) and that defendant committed the murder while engaged in the commission of robbery (§ 190...
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OPINION This appeal arises from an order granting summary judgment on the ground that the debts arising from sanction orders by the California Court of Appeal were nondis-ehargeable under § 523(a)(6) 1 as a matter of law, since the findings by the California Court of Appeal were entitled to collateral estoppel effect. The debtor appeals. We AFFIRM. I. FACTS In 1986, G...
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Opinion Orders for spousal support ordinarily terminate upon the death of the obligor spouse. (Civ. Code, § 4801, subd. (b).) 1 To remedy the financial burden that may flow from such a death, the Legislature has enacted section 4801.4. This section gives the trial court discretion to order the obligor spouse to maintain life insurance for the benefit of the supported spouse “. ...
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*1522 Opinion Beverly Usher appeals from a judgment entered on a motion for summary adjudication in favor of American Airlines, Inc. (American). We conclude that appellant’s causes of action for breach of contract and handicap discrimination were subject to the exclusive remedy provisions of the California workers’ compensation law and were properly dismissed. Factual and Pr...
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Opinion Western Union Financial Services, Inc., sued First Data Corporation and its wholly owned subsidiary, Integrated Payment Systems (IPS), alleging violations of the Unfair Practices Act (Bus. & Prof. Code, § 17000 et seq.) 1 arising from First Data’s sale of certain money transfer services below cost during a five-month promotion aimed at Western Union’s customers. We...
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Opinion Procedural History By information appellants Enrique Sanchez Valenzuela and Juan Jose Orozco were charged with one count of murder (count 1), a violation of Penal Code section 187, subdivision (a); 1 two counts (counts 2 and 3) of attempted willful, deliberate and premeditated murder, violations of sections 664 and 187, subdivision (a); and two counts (counts 4 and 5) of assault wit...
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*1545 Opinion Introduction This appeal is taken by the District Attorney for the County of Los Angeles from an order of the superior court granting the Penal Code section 995 motion of respondent and defendant, Paul Vernon Erwin. In the context of a preliminary hearing conducted on the sworn testimony of a law enforcement officer under Penal Code section 872, subdivision (b), this case pr...
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Opinion Ray Henriksen appeals from the trial court’s grant of summary judgment in favor of the City of Rialto (hereinafter Rialto) on his cross-complaint arising out of an accidental injury inflicted by Henriksen, an off-duty police officer, on another off-duty officer. Appellant argues that Rialto was obligated as a matter of law to indemnify him for any damages recovered against him. We agree w...
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Opinion This is a case about the discretion of a trial court in ruling on a motion to deem matters admitted under Code of Civil Procedure section 2033. 1 The defendant was involved in a multicar accident on the Hollywood Freeway. The plaintiff, who was driving one of the other cars, filed a lawsuit against her. Despite substantial efforts to locate the defendant, none of the ...
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11 F.3d 1460 1993-2 Trade Cases P 70,445 In re DUAL-DECK VIDEO CASSETTE RECORDER ANTITRUST LITIGATION,GO-VIDEO, INC., a Delaware Corporation, Plaintiff-Appellant,v.MATSUSHITA ELECTRICAL INDUSTRIAL CO., LTD., Victor Companyof Japan, Ltd., Sony Corporation, Defendants-Appellees. No. 92-16709. United States Court of Appeals,Ninth Circuit. Dec. 15, 1993. Joseph M. Aliot...
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11 F.3d 948 27 Fed.R.Serv.3d 1035, 17 Employee Benefits Cas. 1971 Martin PATTERSON, Plaintiff-Appellant,v.HUGHES AIRCRAFT CO.; Hughes Salaried Employees' IncomeInsurance Plan, Defendants-third-party-Plaintiffs-Appellees,v.CENTENNIAL LIFE INSURANCE COMPANY, Third-party-Defendant-Appellee. No. 92-55069. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 10, ...
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Surabhan Ratanasen, a doctor who filed for bankruptcy under Chapter 11, appeals the district court’s order affirming the bankruptcy court’s finding that Ratanasen owed the California Department of Health Services $125,789 under the Medi-Cal program based on an audit conducted through sampling and extrapolation. We find the use of such audit methods proper and that Ratanasen was afforded an opport...
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*1691 Opinion We hold that a public entity which allows a sporting event to take place on its property has no legal duty to provide a distraction barrier to prevent a passing motorist from seeing or hearing the event. In this situation, the public entity has no liability for injuries caused by the inattentive motorist. Pleadings and Evidence On October 11, 1991, Mic...
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Opinion After a jury verdict in her favor on her action for violation of San Francisco’s Residential Rent Stabilization and Arbitration Ordinance (Ordinance) (S.F. Admin. Code, ch. 37), respondent Irma Aguirre was *1650 awarded $75,000 from Tony and Shaw Lee. The Lees appeal, 1 contending that (1) section 12.19 of the Rules and Regulations (Regulations, section 12...
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Opinion Appellant Joanne Delfino suffered serious injuries when she fell from her bicycle, after being chased and knocked down by a dog which was running loose on the public streets in Contra Costa County. She brought this lawsuit against the owners of the dog she testified had caused the accident. We will hold, inter alia, that a local ordinance, penalizing an owner whose dog is allowed to roa...
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We are called upon to decide whether a federal district court in California should exercise personal jurisdiction over four doctors in Sweden who allegedly defamed a California corporation in articles published in international medical journals. I Until very recently, Core-Vent was a California corporation with its headquarters in Encino.1 Core-Vent and its principal competitor, Nobelpharma AB (“N...
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12 F.3d 155 1993-2 Trade Cases P 70,456 LIBERTY LAKE INVESTMENTS, INC., successor in interest toWells B. McCurdy Trust, Plaintiff-Appellant,andWells B. McCurdy, Trustee, Plaintiff,v.Harry F. MAGNUSON and Jane Doe Magnuson; Antone Plese;Sundena Plese; Orville L. Barnes and Jane Doe Barnes;University City, Inc.; McCarthy Management and DevelopmentCompany; West 514, Inc., et al., Defenda...
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11 F.3d 1473 CHEVRON U.S.A. INC., a Pennsylvania corporation,Plaintiff-Counterdefendant-Appellee-Cross-Appellant,v.W. Scott SCHIRMER, Defendant-Counterclaimant-Appellant-Cross-Appellee. Nos. 91-16580, 91-16601, 92-15688 and 92-15821. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 2, 1993.Decided Dec. 16, 1993. N. Warner Lee, Charles L. Chester, a...
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*670Opinion We granted review in this case to determine whether the scope of the duty owed by the owner of a shopping center to maintain common areas within its possession and control in a reasonably safe condition includes providing security guards in those areas. We conclude that, under the facts of this case, the owner did not owe a duty to provide security guards. I. Background This case aris...
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*687Opinion A defendant pleads guilty to felony charges pursuant to a plea bargain. Prior to sentencing, he seeks to withdraw the plea, and claims his court-appointed attorney provided ineffective assistance. Under what circumstances must the trial court substitute new counsel in place of the first attorney for future representation, including investigating and, if appropriate, presenting a claim ...
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Opinion We granted review to decide three issues. First, we must determine whether a postjudgment order denying an award of attorney fees under Code of Civil Procedure section 2033, subdivision (o), is appealable. For the reasons that follow, we conclude that it is. Second, we must *649 determine where the burden of proof lies when a plaintiff in a personal injury case claims...
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*1755 Opinion Appellant, Ruben Odell Boulware, appeals his conviction by jury verdict of three counts of second degree robbery (Pen. Code, § 211; all further code citations are to the Penal Code unless otherwise indicated) together with a five-year enhancement for a prior serious felony conviction (robbery) and a one-year enhancement for a prior prison term for possession of a co...
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*1738 Opinion I. Introduction In this case we hold that: (1) orders imposing monetary discovery sanctions are not made appealable by subdivision (k) of Code of Civil Procedure section 904.1, and (2) even if they were, the order challenged in this case could not be appealed because the amount of the sanction did not exceed the statutory appealability threshold of $750. Thomas O. Ballard purp...
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*1658 Opinion The question in this case is whether the Lancaster Redevelopment Agency may issue bonds secured by funds earmarked for low- and moderate-income housing to fund an “improvement” which has little, if anything, to do with the construction of affordable housing for the persons intended to be benefitted by the Community Redevelopment Law (CRL), section 33000 et seq. of t...
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Opinion Michelle Garcia appeals from a judgment in favor of the County of Yolo (the County) directing that she pay child support under Welfare and Institutions Code section 11350.1 The judgment awards the County restitution of a portion of the Aid to Families With Dependent Children (AFDC) benefits paid Garcia on behalf of her older son, during a period when he was in foster care. Garcia contends ...
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ORDER Petitioner Benny Felt seeks review of an order of the Benefits Review Board issued on April 23, 1992. The Board affirmed the Administrative Law Judge’s denial of Felt’s claim for compensation under the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. §§ 901-950. We do not reach the merits of Felt’s petition, as we lack jurisdiction to review it. A petition to review a final det...
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Opinion Introduction Appellant Delta Towers Joint Venture (appellant) owned a large office building in Century City and gave its consent to a tenant, respondent law corporation of Dem, Mason, Swerdlow, & Floum (DMF), 1 to sublease a portion of its leasehold to cross-defendant WFI, Inc. (WFI), which was already a subtenant of respondent Mediacom, Inc. (Mediacom). Because ap...
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George Rombach appeals the district court’s entry of summary judgement in favor of the government in its suit to enforce Rom-bach’s guaranty of a Small Business Administration loan. We vacate the judgment and remand for further proceedings. I. BACKGROUND On February 23, 1977, Orangematic, Inc. executed a note in the amount of $388,000 and received loan proceeds in that amount from Uni...
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*1609 Opinion A jury convicted Fredrico Yanez Gonzales of two counts of residential burglary. (Pen. Code, 2 §§ 459/460.) Gonzales subsequently admitted the truth of allegations concerning two serious prior felony convictions (§§ 667, subd. (a), 1192.7, subd. (c)(8)), as well as those concerning three prior prison terms (§ 667.5, subd. (b)), alleged in the amended information. The trial cour...
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*1810 Opinion Defendant Jack Dewayne Riley appeals his convictions of second degree murder and accessory after the fact to the murder. We conclude that defendant’s contentions on appeal are without merit, and affirm. Facts On the night of June 11, 1991, Carol Romine was working as a prostitute. Scott Hayden, riding a motorcycle, approached Romine; Romine agreed to a sexual act in exchange...
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Opinion Plaintiff and appellant Carl Wayne Smith appeals from a judgment entered after a demurrer to his first amended complaint was sustained without leave to amend. 1 His action is based on his claim that, through its operation of Kern Medical Center, respondent Kern County negligently performed a laboratory test for acquired immuno-deficiency syndrome (AIDS), and that he was...
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Opinion In our recent opinion in Sandeffer v. Superior Court (1993) 18 Cal.App.4th 672 [22 Cal.Rptr.2d 261] we had occasion to construe certain aspects of Penal Code 1 section 1054.3, the new criminal discovery statute resulting from the approval in 1990 of Proposition 115. The trial court in that case had ordered the defense to produce certain documents pertaining to a defense expert wit...
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Opinion Defendant Lawrence G. Randolph appeals from conviction of violation of Penal Code section 459. 1 His sole contention is that the trial court erred in refusing to give CALJIC No. 4.02. We will affirm, finding insufficient evidence of “legal insanity” to warrant provision of that instruction. Statement of Facts On the evening of July 22, 1989, Terry Katzakian was awakened in his hom...
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The plaintiffs filed a class complaint with the Department of Navy alleging racial discrimination. For more than ten years, their case vacillated between the Navy and the Equal Employment Opportunity Commission (“EEOC”), until the Navy cancelled the class complaint for failure to prosecute. The plaintiffs filed in district court pursuant to 42 U.S.C. § 2000e-16(c) (1988). ■ The district court gran...
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12 F.3d 875 27 Fed.R.Serv.3d 1235, 25 Bankr.Ct.Dec. 85,Bankr. L. Rep. P 75,639 In re ROXFORD FOODS, INC., Debtor.CIVIC CENTER SQUARE, INC., Plaintiff-Appellee,v.James M. FORD, as trustee of the Estate of Roxford Foods,Inc., Defendant-Appellant.PURINA MILLS, INC.; James M. Ford, as trustee of the Estateof Roxford Foods, Inc., Plaintiffs-Appellants,v.CIVIC CENTER SQUARE, INC., Defendant-Ap...
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John Jarrette Sandlin (Sandlin) appeals the district court’s order suspending him from practice as a member of the bar of the United States District Court for the Eastern District of Washington for six months for violating Rule 1.2(f)(2) of the Local Rules of that court and Rule 8.2(a) of the Rules of Professional Conduct of the Washington State Bar Association by stating, falsely or with reckless...
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OVERVIEW The United States appeals the five-year probation sentence for Jesse Saldana who pled guilty to three cocaine charges and stipulated to facts in the plea agreement which established food stamp fraud offenses. The Government objects to the district court’s disregard of the food stamp fraud offenses in the calculation of the base offense level under the sentencing guidelines. We vacate a...
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Opinion I. Introduction In this case, we determine that plaintiff, Say & Say, Inc., a corporation, is subject to the vexatious litigant law. (Code Civ. Proc., 1 § 391 et seq.) Accordingly, we issue a prefiling order pursuant to section 391.7, subdivision (a) 2 and direct that Say & Say, Inc., within 10 days secure an order from the presiding justice of this divi...
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OPINION The appellees filed an adversary proceeding seeking a determination that a state court judgment debt owed them by the debt- or was nondischargeable under 11 U.S.C. § 523(a)(4). The bankruptcy court granted the appellees’ motion for summary judgment, determining that the state court decision established all necessary elements under section 528(a)(4). We REVERSE the bankruptcy court...
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Opinion Propositions 73 (Gov. Code, tit. 9, ch. 5, art. 1 et seq.)1 and 68 (ibid.), both designed to implement campaign contribution reform, were each approved by the voters at the June 1988 Primary Election. The former garnered more affirmative votes than the latter. In Taxpayers to Limit Campaign Spending v. Fair Pol. Practices Com. (1990) 51 Cal.3d 744 [274 Cal.Rptr. 787, 799 P.2d 1220] (herea...
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6 Cal.4th 784 (1993) 863 P.2d 714 25 Cal. Rptr.2d 469 THE PEOPLE, Plaintiff and Respondent, v. ERIC TOMONT HICKS, Defendant and Appellant. Docket No. S026853. Supreme Court of California. December 20, 1993. *786 COUNSEL Dallas Sacher, under appointment by the Supreme Court, and Howard J. Specter, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney Ge...
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Opinion Beatrice Company (Beatrice) asks this court to clarify whether an assumption of liabilities by a commencing subsidiary corporation in exchange for a transfer of tangible personal property by the parent corporation constitutes consideration for the transferred property which subjects the transaction to taxation under Revenue and Taxation Code sections 6051 and 6006, subdivision (a)...
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6 Cal.4th 738 (1993) 863 P.2d 725 25 Cal. Rptr.2d 480 CITY OF SAN DIEGO, Plaintiff and Respondent, v. FRITZ NEUMANN et al., Defendants and Appellants. Docket No. S029018. Supreme Court of California. December 20, 1993. *741 COUNSEL Asaro & Keagy, Roscoe D. Keagy, Richard R. Freeland, Arnold Neves, Jr., Crosby, Heafey, Roach & May, Gideon Kanner and M. Reed Hunter for Defendants and Appell...
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Opinion Defendant Jose Luis Abrego was charged in an information in count 1 with infliction of corporal injury on a spouse (Pen. Code, § 273.5, subd. (a)) 1 and in count 2 with assault with a deadly weapon (§ 245, subd. (a)(1)). Each count specially alleged that the crimes had been committed while Abrego was released on his own recognizance (§ 12022.1). A jury found Abrego guil...
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Opinion Section 12022.1 of the Penal Code increases the period of imprisonment for a felony if the offender committed it while free on bail or his own recognizance (O.R.) pending resolution of earlier felony charges of which he is ultimately found guilty. We granted review to decide whether this “bail/O.R.” enhancement applies in juvenile court proceedings under section 602 of the Welfare...
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Opinion Donald Maescher appeals an order requiring him to reimburse his former wife, Daphne Smith, for education expenses she advanced to their son Peter for his senior year of college. He contends their marital separation agreement defining his obligation to pay college expenses created a third party beneficiary contract for the breach of which only Peter could recover damages. He also c...
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Opinion * Joan Marselle was injured on May 26, 1987, when she slipped and fell while walking from her place of employment to her car, which was parked in an adjacent parking lot. She brought an action for personal injuries against Richard H. Meyers, Sr., and Marilyn Meyers 1 , who had an ownership interest in the parking lot. Aetna Casualty and Surety Company, the worker...
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*126 Opinion In this case we hold that a spouse’s waiver of her right to take the statutory share of a spouse omitted in her husband’s will is valid when the waiver is contained in a premarital agreement. The trial court found the waiver ineffective because the spouse was not represented by independent counsel in the preparation of the premarital agreement. We disagree, find...
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This ease is a challenge brought pursuant to the Administrative Procedure Act (APA) 5 U.S.C. §§ 701-706, by Hecla Mining Company (Hecla) to decisions of the Environmental Protection Agency (EPA) made pursuant to §§ 304(i)(l)(B) and (C) of the Clean Water Act. 33 U.S.C. §§ 1314(0(D(B) and (C). The district court dismissed the action. We affirm for the reason that the challenged decisions of the EP...
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12 F.3d 166 73 A.F.T.R.2d 94-498, 94-1 USTC P 50,004 Gerald W. and Geraldine M. BERGFORD, William G. and BarbaraAlhouse, John N. and Nancy M. Damas, William A.and Judith Tauskey, and Monte S. andJerilyn F. Preece,Petitioners-Appellants,v.COMMISSIONER, INTERNAL REVENUE SERVICE, Respondent-Appellee. Nos. 92-70241, 92-70242, 92-70443, 92-70445 and 92-70519. United States Court of App...
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Keith Ahue, the current Director of Labor and Industrial Relations for the State of Hawaii, and the Air Line Pilots Association, International (“ALPA”) appeal the district court’s summary judgment in favor of Aloha Airlines, Inc. (“Aloha”) in Aloha’s action seeking declaratory judgment that Hawaii Payment of Wages Law, Hawaii Revised Statute (“H.R.S.”) § 388-6(6) is preempted by section 514(a) ...
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. Ray Harold Edwards, III appeals from his judgment of conviction for violating the Gun Free School Zones Act, 18 U.S.C.A. § 922(q)(l)(A) (West Supp.1993). Pursuant to a plea agreement, Edwards entered a conditional guilty plea in exchange for the Government’s dismissal of charges for possession of a sawed-off rifle in violation of 26 U.S.C. § 5861(d). Edwards specifically reserved the right to a...
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Opinion Madeline Tucker 1 brought this malpractice action in April 1991 against her former attorneys, alleging that they allowed her meritorious claim in a federal bankruptcy proceeding to be dismissed for lack of prosecution and that this dismissal had adverse res judicata effects in her related state court action. 2 Defendants John Paulsen and Robert Davis brought ...
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Opinion Plaintiff and appellant Ramona Convent of the Holy Names (Ramona) appeals a judgment in favor of defendant and respondent City of Alhambra (the City) following the grant of a motion for summary adjudication which disposed of all issues between the parties. Ramona desires to sell 1.97 acres of its campus to generate funds for school purposes. The essential issue presented is w...
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Opinion Defendants, cross-complainants and appellants Douglas Furniture of California, Inc., Harold E. Applebaum, Stuart A. Applebaum, Daniel Feldman, Diane Feldman, Douglas E. Cohen and Howard I. Cohen (sometimes collectively referred to as Douglas or the owners) appeal a judgment in favor of plaintiff, cross-defendant and respondent John B. Kilroy Company, and cross-defendants and respo...
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Opinion Plaintiff Paula Parris appeals a judgment, after jury trial, in favor of defendant Doctor James Sands. We affirm and hold Doctor Sands had no duty to inform patient Parris of “schools of thought” regarding asplenic patients and prophylactic antibiotics. Facts In 1975, physicians diagnosed plaintiff Paula Parris as having Hodgkin’s disease, a cancer of the lymph nodes. To determine w...
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Opinion Jorge O. Bojorquez Perez was charged with second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b), & 213, subd. (a)(2)); 1 personally using a deadly and dangerous weapon (§ 12022, subd. (b)); and a prior serious felony conviction (§ 667, subd. (a)). A jury convicted Perez of second degree robbery and found the weapon use allegation true. In the bifurcated court trial...
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*3 Opinion We affirm defendant’s conviction of a violation of Penal Code section 12303.2, prohibiting possession of “any explosive on a public street or highway, in or near any theater, hall, school, college, church, hotel, other public building, or private habitation, in, on, or near any aircraft, railway passenger train, car, cable road or cable car, vessel engaged in carrying passengers fo...
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Opinion I On October 27, 1992, Diandre Lamont Lopez pleaded guilty to one count of second degree robbery (Pen. Code, §§ 211, 212.5, subd. (b)), 1 and admitted the gun use enhancement allegation (§ 12022.5, subd. (a)) was true. Pursuant to an indicated sentence, he was sentenced to the midterm of three years on count one and the enhancement was stricken. The district attorney claims the tr...
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14 F.3d 429 62 USLW 2405 CAL-ALMOND, INC., a California corporation Plaintiff-Appellant,v.UNITED STATES DEPARTMENT OF AGRICULTURE Defendant-Appellee.CAL-ALMOND, INC., a California corporation, SaulsburyOrchard and Almond Processing, Inc., CarlsonFarms, a sole proprietorship Plaintiffs-Appellants,v.UNITED STATES DEPARTMENT OF AGRICULTURE Defendant-Appellee.CAL-ALMOND, INC., a California cor...
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*206 Opinion This is a complex construction defect case brought by plaintiffs Dale Village Apartment Company and related entities (Dale Village) against Pieri-Debbas Enterprises, the developer and general contractor on an apartment building project owned by Dale Village. Various subcontractors on the project have also been sued as defendants. Petitioners are certain of those subc...
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Opinion Defendant appeals from his conviction of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), false imprisonment (Pen. Code, § 236), petty theft (Pen. Code, §§ 484/488), and joyriding (Pen. Code, § 499b). Defendant argues the trial court improperly denied his motion for new trial based on jury misconduct and improperly instructed the jury on false imprisonment. He also contend...
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Opinion On December 11, 1992, a second amended information was filed in which defendant was charged with having committed eight crimes, seven on July 16, 1992 and one on May 3, 1992. This information also alleged as sentence enhancements that on June 8, 1992, defendant had been convicted of a prior serious felony within the meaning of Penal Code section 667. 1 and that he had committed the al...
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*312 Opinion Under Civil Code section 846, landowners who permit others to use their property for recreational purposes, are immune from liability for injuries suffered by such recreational use of their land. 1 A company owns land which it allows the public to use without charge for recreation purposes. Groups or persons using the land must sign a form which, among o...
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Opinion Plaintiff David Berman appeals from a summary judgment entered in favor of defendants City of Daly City (Daly City) and Police Officer Joseph Crivello on his complaint for damages for personal injuries and for violation of his civil rights which occurred when the car of a fleeing criminal suspect being pursued by Officer Crivello struck a car driven by *279 Berman. ...
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Opinion The People appeal from orders sustaining demurrers without leave to amend (Pen. Code, § 1002 et seq.) and setting aside (Pen. Code, § 995), and judgments dismissing, all counts of a second amended indictment charging defendants Charles H. Keating, Jr., and Ray C. Fidel with selling unqualified securities. (Corp. Code, §§25110, 25540.) 1 The People theorized that the def...
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Opinion Plaintiff and appellant California Air Resources Board (the Board) appeals the judgment of dismissal entered in favor of defendant and respondent Lawrence T. Hart, individually and doing business as' Bellflower Harley-Davidson (Hart), on the ground the Board is without standing to sue in this matter. *293 Because Health and Safety Code sections 7 and 43154, subdivisi...
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Opinion Mynor Arnold Rodriguez, a minor tried as an adult, appeals from his conviction of second degree murder. He contends the identification of him as a suspect resulted from a photograph obtained during an illegal “gang sweep” field interrogation and thus his motion to suppress the photograph and subsequent identifications should have been granted. He also contends the court erroneousl...
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*304 Opinion Introduction The issue in this mandate proceeding is whether the trial court erred in finding that Zaharias M., a 16-year-old accused of committing, along with 3 companions, a bank robbery while using a gun, was fit to be dealt with under the juvenile court law. Our analysis of case precedent and the governing statutory scheme compels the conclusion that the trial court’s decis...
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12 F.3d 882 145 L.R.R.M. (BNA) 2109 UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, UNITEDSTATES BORDER PATROL, Petitioner-Cross-Respondent,v.FEDERAL LABOR RELATIONS AUTHORITY, Respondent-Cross-Petitioner,andNational Border Patrol Council, American Federation ofGovernment Employees, Local 1613, AFL-CIO, Intervenor. Nos. 92-70119, 92-70218. United States Court of Appeals,Ninth...
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Opinion I Introduction Donald W. appeals from orders of the juvenile court adjudging his son, Barry W., a dependent of the court and issuing guardianship letters pursuant *361to Welfare and Institutions Code section 300 et seq. (All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.) In the nonpublished portion of this opinion, we reject appellant’s m...
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Opinion William and Tanya Desmond appeal from a judgment denying their petition for writ of administrative mandate. That petition sought to set aside the decision of the Board of Supervisors (Board) of the County of Contra Costa (County) denying their application for a land use permit. Appellants contend that the administrative findings of the Board are not supported by substantial eviden...
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Opinion We reverse the judgment in part because of error committed during jury selection and affirm the judgment in part. Background Defendant Timothy L. Smith was convicted by a jury of first degree murder (Pen. Code, §§ 187, subd. (a), 189) 1 (count one) and street terrorism (§ 186.22, subd. (a)) (count two) in the shooting death of a security guard at a taco stand. Firearm enhancements...
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Opinion Defendants and appellants Director of Motor Vehicles and Department of Motor Vehicles (collectively referred to as DMV) appeal from a judgment granting a peremptory writ of administrative mandamus to set aside the suspension of plaintiff and respondent Elizabeth D.’s driving privileges. We find that since the trial court was not provided with either the administrative record or a ...
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Opinion While his appeal from a judgment imposing the death penalty was pending before this court (see People v. Neely, ante, p. 877 [26 Cal.Rptr.2d 189, 864 P.2d 460]), petitioner Charles Frederick Neely filed the petition for writ of habeas corpus which gave rise to the present proceeding. This petition, in part reiterating petitioner’s contentions on appeal, alleged, among other claims, that nu...
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Opinion By filing a second petition for a writ of mandate following summary denial of a prior identical petition, Emil E. “Chuck” Manzetti and Aleo Cad Nickel Plating Corporation ask this court to again review and consider the disposition of a motion to compel access to real property to conduct an inspection pursuant to Code of Civil Procedure *375 section 2031, subdivision (...
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I dissent. California’s Open Meeting Law1 requires legislative bodies to give notice of the time and place of their meetings and to make such meetings open and accessible to the public. The stated purpose of this law is to assure that Californians can be fully informed about the legislative decisionmaking process of elected and appointed officials. Under the majority opinion, however, a legislativ...
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Opinion Real party in interest, Pamela Kelso who is now 26 years old, has accused her stepfather, Jack Arthur Blackburn, the petitioner herein, of sexually molesting her while she was between 13 and 18 years old. Kelso claims that the molestations started in 1980 and continued through 1985. If true, these alleged acts would constitute violations of Penal Code sections 261, 288, and 288, subdivi...
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6 Cal.4th 926 (1993) 863 P.2d 769 25 Cal. Rptr.2d 524 THE PEOPLE, Plaintiff and Respondent, v. MARY LOUISE BANKS, Defendant and Appellant. Docket No. S030479. Supreme Court of California. December 23, 1993. *930 COUNSEL Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Havlena and Alan J. Crivaro, Deputy Public Defenders, for Defendent and Appellant. Amitai S...
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Opinion Alarmed by the death and destruction that drunk drivers cruelly perpetrate upon our highways, the Legislature has empowered the Department of Motor Vehicles (DMV) to promptly suspend the drivers’ licenses of those who drive while intoxicated. We are asked to decide whether a determination in a criminal prosecution that a defendant had been *845illegally arrested for driving under the infl...
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6 Cal.4th 877 (1993) 864 P.2d 460 26 Cal. Rptr.2d 189 THE PEOPLE, Plaintiff and Respondent, v. CHARLES FREDERICK NEELY, Defendant and Appellant. Docket No. S004516. Crim. No. 23020. Supreme Court of California. December 23, 1993. *880 COUNSEL Karen S. Sorensen, under appointment by the Supreme Court, for Defendant and Appellant. John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Steve ...
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12 F.3d 892 J.R. MAFFEI; Richard Maffei; Betty J. Maffei, Plaintiffs-Appellants,v.NORTHERN INSURANCE COMPANY OF NEW YORK; Maryland CasualtyCo., Defendants-Appellees. No. 92-15651. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 7, 1993.Decided Dec. 27, 1993. Philip Borowsky and Dennis Kruszynski, Cartwright, Slobodin, Bokelman, Borowsky, Wartni...
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Opinion Appellant was convicted after a jury trial of attempted voluntary manslaughter (Pen. Code, §§ 664, 192),1 and brandishing a deadly weapon (§ 417, subd. (a)(1)). The jury further found that appellant inflicted great bodily injury upon the victim within the meaning of section 12022.7, and used a deadly or dangerous weapon in commission of the offense under section 12022, subdivision (b). Th...
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Opinion In these consolidated appeals, Ivan O.B. Morse challenges the trial court’s issuance of a preliminary injunction that enjoined him from mailing to the public solicitations concerning homestead declarations without complying with Business and Professions Code section 17537.6, 1 and a subsequent judgment that granted a permanent injunction, imposed $400,000 in civil penal...
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Opinion We granted review in this case to consider whether a superior court has (1) personal jurisdiction over the Workers’ Compensation Appeals Board, and (2) subject matter jurisdiction over an action to declare *1033 provisions of the Workers’ Compensation Act (Lab. Code, § 3200 et seq.) 1 invalid and enjoin enforcement of those provisions. The Court of Appeal h...
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Opinion This is an automatic appeal (Pen. Code, § 1239, subd. (b)) from a judgment of death under the 1978 death penalty law (id., § 190 et seq.). On November 2, 1987, the District Attorney of Kern County filed an information against defendant Rodney Berryman in the superior court of that county. *1062 Count I charged that on or about September 6, 1987, defen...
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6 Cal.4th 965 (1993) 863 P.2d 795 25 Cal. Rptr.2d 550 FRANK POTTER et al., Plaintiffs and Respondents, v. FIRESTONE TIRE AND RUBBER COMPANY, Defendant and Appellant. Docket No. S018831. Supreme Court of California. December 27, 1993. *973 COUNSEL Kaye, Scholer, Fierman, Hays & Handler, Pierce O'Donnell, Gerard Fox, Jeffrey Miles, McCutchen, Doyle, Brown & Enersen, John W. Fowler, John R. ...
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Defendant John Doe appeals his adjudication of juvenile delinquency for knowingly engaging in sexual contact with a person younger than twelve years of age, in violation of 18 U.S.C. §§ 5031 and 2244(a)(1). Defendant contends that the district court never acquired jurisdiction because the government failed to comply with 18 U.S.C. § 5032, and that the court improperly relied on groundless inferen...
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We must decide whether spousal abuse is a crime of moral turpitude upon the basis of which an alien can be deported. I Petitioner Alvaro Palafox Grageda seeks reversal of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“U”) deportation order under section 241(a)(4) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(4), which allows for deportation of a...
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Intel Corporation (Intel) appeals the district court’s order staying its copyright action against Advanced Micro Devices, Inc. (AMD). The stay was granted pending final state court appellate review of an arbitration award of license that, if upheld, would provide AMD with a defense to Intel’s claims of copyright infringement. Because we do not find that exceptional circumstances exist justifying ...
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The order filed October 29, 1993, with dissent, is ordered published. The panel, with Judge Boochever dissenting, has voted to deny appellees’ petition for rehearing. Judges Noonan and O’Scannlain have voted to reject the suggestion for rehearing en banc and Judge Boochever has recommended acceptance of the suggestion for rehearing en banc. The full court was advised of the suggestion for rehearin...
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12 F.3d 901 27 Fed.R.Serv.3d 1038 John S. HERRINGTON; David S. Herrington; Quail Hill Ranch,Plaintiffs-Appellants,v.COUNTY OF SONOMA, Defendant-Appellee.John S. HERRINGTON; David S. Herrington, and Quail HillRanch Co., a partnership, Plaintiffs-Appellants,v.COUNTY of SONOMA, Defendant-Appellee.John S. HERRINGTON; David S. Herrington; Quail Hill Ranch,Plaintiffs-Appellants,v.COUNTY of ...
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ORDER This matter is before the court on defendants Frank Aiello, Beverly Aiello, and R.S. Management Co.’s motions to dismiss plaintiffs first claim for failure to plead fraud with sufficient particularity pursuant to Fed. R.Civ.P. 9(b), and her second claim for failure to state a cause of action pursuant to Fed.R.Civ.P. 12(b)(6). 1 For the reasons explained below, both mo...
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*550 Opinion I Sometimes breaking up is hard to do. Such is the case here. Indeed, this is the third opinion we have written, and the Supreme Court has also authored one. (Schnabel v. Superior Court (1993) 5 Cal.4th 704 [21 Cal.Rptr.2d 200, 854 P.2d 1117].) And still the parties are married. “The relevant facts are undisputed. Terry and Marilyn Sch...
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21 Cal.App.4th 434 (1993) 26 Cal. Rptr.2d 305 J.A. SAVAGE, Plaintiff and Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Respondent. Docket No. A057595. Court of Appeals of California, First District, Division One. December 27, 1993. *438 COUNSEL Scott L. Fielder, Bradlee S. Welton and Hugh B. Fielder for Plaintiff and Appellant. Peter Arth, Anne K. Mester, Helen W. Yee and Irene K....
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21 Cal.App.4th 555 (1993) 26 Cal. Rptr.2d 320 THE PEOPLE, Plaintiff and Respondent, v. MARIA ANN VELASQUEZ, Defendant and Appellant. Docket No. G013337. Court of Appeals of California, Fourth District, Division Three. December 28, 1993. *556 COUNSEL Ronald Y. Butler, Public Defender, Carl C. Holmes, Chief Deputy Public Defender, Thomas Hazlena and Brooks S. Talley, Deputy Public Defenders, for De...
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Opinion Defendants Thiep Van Nguyen, Ahn Van Tran, and Dung Van Nguyen were each sentenced to state prison after suffering criminal convictions for multiple counts of robbery (Pen. Code, §211 [unless otherwise specified further section references are to the Penal Code]), one count of genital penetration with a foreign object in concert (§§ 264.1, 289), and one count of being accessories t...
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I. OVERVIEW The City of Beaumont (Beaumont) appeals the district court’s discretionary remand of pendent state claims. Beaumont asserts the district court had a mandatory duty to rule on the sufficiency of service of process before remanding the pendent state claims. We have no jurisdiction to review-the remand order pursuant to Beaumont’s appeal and decline to treat the appeal as a petition ...
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13 F.3d 305 24 Envtl. L. Rep. 20,225 COMMITTEE TO SAVE MOKELUMNE RIVER, a California non-profitcorporation, Plaintiff-Appellee,v.EAST BAY MUNICIPAL UTILITY DISTRICT, a California MunicipalUtility District, et al., Defendants-Appellants. No. 93-15999. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 1, 1993.Decided Dec. 29, 1993. Edward Berlin,...
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Purchasers of Wells Fargo & Co. common stock (“shareholders”) appeal from the district court’s order dismissing their securities fraud class action with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6).1 In their Amended Complaint, the shareholders allege that Wells Fargo & Co. and certain of its senior officers and directors (collectively ‘Wells Fargo”) violated § 10(b) of the Secur...
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ORDER AND OPINION RE DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON ALL CLAIMS ' BASED ON DISCLOSURE OR USE OF ALLEGED TRADE SECRETS OR CONFIDENTIAL INFORMATION I. PRINCIPAL ISSUE ADDRESSED While defendants’ motion -for summary judgment and plaintiffs opposition constrain us to confront many questions, by far the most difficult and significant issue that we address is this: under Califor...
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