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All Reporters → daily-journal-dar → Volume 95

Opinions in daily-journal-dar Volume 95

*108 Opinion Fanners Insurance Group and its member company Truck Insurance Exchange (collectively Truck) appeal from a judgment on a jury verdict against Truck and in favor of Larkspur Isle Condominium Owners’ Association, Inc. (LICOA) in an action for breach of a property insurance policy. Truck contends it had no liability under the policy as a matter of law, because the loss ...
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Opinion The People appeal the Penal Code section 995 dismissal of an information filed against defendants and respondents Jason Sebastian von Marschner, John Mark Eltchi and Steven Eid (collectively, defendants) alleging various sexual offenses and attempted offenses perpetrated upon an unconscious victim. 1 Specifically, the information alleged Eltchi had committed two count...
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American Home Assurance Company (American Home) prevailed in a bench trial against American President Lines (APL) on its claim that cargo carried by APL arrived at its destination freeze damaged. In APL’s appeal, we consider the amount of proof needed to negate a prima facie case under the Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq., (COGSA), the requirements of...
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43 F.3d 1285 Maria Elena CAMPOS; Milton Cardenas Alvarado; SolomonAvala Lopez; Rene Blanco Lopez; Luis AlonzoHernandez-Cruz; Manuel De Jesus Jaime-Garcia; Jose FredyRamirez-Sanchez; Mauricio Rosales-Hernandez; JustinianoSalcado-Machado; Fredy Sandoval-Mazariegos; Maria AntonioVasquez-Cortez, et al., Plaintiffs-Appellees,v.William F. NAIL, Jr.; Janet Reno,* AttorneyGeneral, Defendant...
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Opinion J.G. Durand International (Durand) appeals from a preliminary injunction order which prevents it from selling certain patterns of leaded crystal stemware in California unless it provides consumers with a notice which warns about exposure to lead. Durand contends the injunction must be set aside because the trial court (1) failed to order the plaintiff to post an injunction bond, a...
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Opinion Petitioner Jeffrey Smith is a member of the Contra Costa County Board of Supervisors. As a member of the board, Smith cast a vote that the county appeal an order entered in federal litigation involving the county. Thereafter, Kevin Degnan, real party in interest, sought injunctive relief in respondent court to set aside Smith’s vote on the ground that Smith’s participation in the decisi...
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*199 Opinion Pedro Renteria Castaneda appeals from the judgment imprisoning him for 44 years for 29 counts of child molestation involving his teenaged stepdaughter and his 7-year-old daughter, along with 2 separate enhancements due to his position of trust and substantial sexual conduct he committed. The actual charges stem from his act of raping his stepdaughter for the first time in 1984 wh...
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Opinion Penal Code section 368, subdivision (a), 1 is one component of a multifaceted legislative response to the problem of elder abuse. The statute imposes felony criminal liability on “[a]ny person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, with knowledge that he or she is an ...
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Opinion Defendant, an ex-felon, repeatedly molested his girlfriend’s 11-year-old daughter. The evidence revealed that he had sexual intercourse with the girl during each unlawful encounter. On some of these occasions, he also either orally copulated or sexually fondled the victim. Defendant was convicted under the lewd conduct statute for each act of sexual intercourse, oral copulation, and fondl...
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Opinion Defendant William Gonzales Harris was convicted by a jury of first degree murder, kidnapping for robbery, kidnapping, second degree robbery, second degree (commercial) burglary (two counts), first degree (residential) burglary, grand theft of a firearm, possession of a concealed firearm in a vehicle, fraudulent use of an automatic teller machine (ATM) access card (two counts), and auto th...
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9 Cal.4th 362 (1994) 885 P.2d 994 36 Cal. Rptr.2d 581 ADVANCED MICRO DEVICES, INC., Plaintiff and Respondent, v. INTEL CORPORATION, Defendant and Appellant. Docket No. S033874. Supreme Court of California. December 30, 1994. *366 COUNSEL Keker, Brockett & Van Nest, Robert A. Van Nest, Karin Kramer, Laird J. Lucas, Brown & Bain, Terry E. Fenzl and Michael F. Bailey for Defendant and Appell...
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OVERVIEW Ronald Lorenzo was indicted on six criminal counts in connection with selling cocaine. He was convicted on count 1, conspiracy to distribute cocaine, on October 15, 1992. After a separate trial, at which he did not testify, he was found guilty on counts 2-6, consisting of conspiracy to possess cocaine with intent to distribute; possession of cocaine with intent to distribute; and distr...
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Milton Mende appeals his conviction and sentence for conspiracy, multiple counts of mail fraud, wire fraud, and money laundering. Mende alleges that the district court erred in three ways: failing to grant his motion for mistrial based on improper prose-cutorial comments on his exercise of his Fifth Amendment privilege against self-incrimination; admitting evidence of his prior fraudulent conduct...
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Daniel Rivera appeals his jury conviction for aggravated sexual abuse of a fifteen-year old girl and for being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm. BACKGROUND Daniel Rivera, a 45-year-old member of the Crow Tribe of Indians, lived in Pryor, Montana, within the Crow Indian Reservation. In the early morning hours of May 27, 1993, a 15...
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Defendants-AppeUants Samuel A. Lewis, Director of the Arizona Department of Corrections, et al., appeal the district court’s order finding that Plaintiffs-Appellees Fletcher Casey Jr., et al., prisoners incarcerated in facilities of the Arizona Department of Corrections, were unconstitutionally denied meaningful access to the courts. Defendants also appeal the district court’s issuance of a per...
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Opinion In this case we must determine whether the offense of discharging a firearm at an inhabited dwelling house (Pen. Code, § 246)1 is a felony “inherently dangerous to human life” for purposes of the second degree felony-murder doctrine, and, if so, whether that doctrine nonetheless is inapplicable in the present case under the so-called “merger” doctrine applied in People v. Ireland (1969) 7...
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Opinion Introduction Appellant Pamela Castro appeals from judgments of the San Francisco Superior Court dismissing her action against respondents. She contends the trial court erred in sustaining respondent Paul Higaki’s 1 demurrer on the ground the action was precluded by res judicata. She claims that the issue determined in the previous action is not the same as the issu...
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*364 Opinion Dee Anna M. Brossoit, the mother of the two children who are the subjects of this proceeding, appeals from an order declining to exercise jurisdiction over her motion to modify child custody. She contends the trial court erred in leaving it to the courts of Tennessee, where her children now live with their paternal grandparents, to determine the merits of the custody...
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Opinion A dispute between the owners and the contractor over a remodeling contract was submitted to binding arbitration, resulting in an award of $30,713.35 to the contractor, Villinger/Nicholls Development Company (VNDC). The owners, Kenneth and Ann Meleyco, appeal from the judgment entered after the superior court confirmed the award. (Code of Civ. Proc., § 1286.) The Meleycos contend t...
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Opinion Question Presented The proper standard of care for a person administering a diphtheria, pertussis and tetanus (DPT) vaccine to an infant is the sole legal question in this appeal. Trying the case without a jury, the court entered judgment in favor of Frederick Frye, M.D., in the medical malpractice action of Jaridijon Salasguevara, a minor by his guardian ad litem, 1 ...
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Opinion The People of the State of California seek a writ of prohibition, which we have deemed a petition for a writ of mandate, directing respondent Superior Court of the State of California, for the County of Los Angeles, (1) to set aside its order of May 6, 1994, by which it vacated a state prison sentence pronounced on June 4, 1991, and granted probation to real party in interest, Sara Mae ...
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ORDER ON MOTION FOR RECONSIDERATION Rejecting the majority trend of District Court authority, the court holds that, for purposes of FIRREA, the federal “no duty” rule does not survive the Supreme Court’s O’Melveny decision, and does not apply to post-FIRREA suits. The court also holds that, despite California’s rule against transfer of punitive damages claims, the RTC succeeds ...
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Erik Ryberg appeals his conviction of a violation of 36 C.F.R. § 261.3(a) and (c), issued by the Secretary of Agriculture under the authority of 16 U.S.C. § 551. We affirm the judgment of the district court. FACTS On August 2, 1993 David Magers, a law enforcement officer within the U.S. Forest Service protecting the Nez Perce National Forest in Idaho, was instructed by his supervisor Specia...
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Opinion Appellant was convicted of the attempted first degree murder of Officer Epifiano Cardenas of the Fresno Police Department. (Pen. Code, §§ 664, 187.) The attempted murder qualified as first degree murder on the basis that appellant had attempted a “willful, deliberate, and premeditated” killing of Cardenas. (Pen. Code, §§664, 189.) 1 It was not disputed that appellant ha...
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Opinion Reagen’s Vacuum Truck Service, Inc., Bennie Reagen and Dennis Reynolds (Reagen’s) appeal from a judgment following entry of summary judgment in favor of Beaver Insurance Company (Beaver). Reagen’s, in its first amended complaint, had alleged causes of action against Beaver for breach of duty of good faith and fair dealing, breach of *381contract, breach of fiduciary duties, fraud, and neg...
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*405 Opinion On February 2, 1993, cross-appellants and respondents the Los Angeles County Court Reporters Association and the Los Angeles County Employees Association, Local 660 (collectively the association), filed a petition for writ of mandate in the Los Angeles Superior Court naming appellant and cross-respondent the Los Angeles County Superior Court (the court) as defendant....
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C. A. 10th Cir. Certiorari granted....
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C. A. 10th Cir. Certiorari granted....
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C. A. D. C. Cir. Certiorari granted....
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C. A. 7th Cir. Certiorari granted. Justice Breyer took no part in the consideration or decision of this petition....
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C. A. 3d Cir. Certio-rari granted, cases consolidated, and a total of one hour allotted for oral argument....
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John and Mary O’Neill (“taxpayers”), investors in a tax shelter partnership, Interser-vice Group Limited (“IGL”), filed an action in district court seeking a refund of the taxes they paid as a result of adjustments made by the Internal Revenue Service (“IRS”) to IGL’s partnership return. The district court entered summary judgment for the Government on the ground that under 26 U.S.C. § 7422(h) ...
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OPINION The district court granted summary judgment sua sponte against plaintiffs, even though the defendant had not yet appeared. Another defendant had won summary judgment on the same grounds, and the court found the case to be frivolous. We affirm. Facts Ahlstrom was the general contractor building a boiler for Louisiana Pacific Corporation. Ahlstrom hired Stevens Equipment for steel f...
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In this case, we allowed an interlocutory appeal of the district court’s order granting plaintiff-appellee’s motion for joinder. The underlying action involves the voluntary assignment of a tort claim against the United States, and implicates both the Assignment of Claims Act and the Federal Tort Claims Act. Because the district court’s ruling in this case contravenes both the language and purp...
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513 U.S. 138 (1995) INTERSTATE COMMERCE COMMISSION v. TRANSCON LINES et al. No. 93-1318. United States Supreme Court. Argued November 1, 1994. Decided January 10, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *140 Kennedy, J., delivered the opinion for a unanimous Court. Deputy Solicitor General Wallace argued the cause for petitioner. With him on the briefs were So...
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Defendants, Richard Vernon and Ron McKinsey, appeal the district court’s denial of their motions for summary judgment. Plaintiffs, a class of inmates in the North Idaho Correctional Institution, filed this action alleging due process violations in the administration of Idaho’s retained jurisdiction program. Vernon and McKinsey contend that they are entitled to qualified immunity from damages beca...
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44 F.3d 813 63 USLW 2511, 1995 Copr.L.Dec. P 27,383,33 U.S.P.Q.2d 1437 LA CIENEGA MUSIC COMPANY, Plaintiff-Appellant,v.ZZ TOP; Billy Gibbons; Joe Michael Hill, pka: Dusty Hill;Frank Beard; Bill Ham, dba: Hamstein Music Company andLone Wolf Production Company; Glad Music Company; WarnerBrothers Records, Incorporated; WEA International, Inc.;Broadcast Music, Inc., Defendants-Appellee...
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We must decide whether a manufacturer has a duty to warn of a danger posed by material which is later used in a medical implant device. I Between 1978 and 1986, Consuelo Angui-ano and twenty-one other appellants (collectively “Anguiano”) had temporomandibular (“TMJ”) implants placed in their jaws and subsequently suffered tissue reaction when the implants fragmented. The implants were constructed ...
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Georgia Leigh Wetsit appeals the decision of the federal district court denying her petition for habeas corpus brought against the chief judge and chief prosecutor of the Fort Peck Tribes. The case presents a question of tribal jurisdiction over major crimes committed by a member of the tribe, a question that has hitherto not been resolved by a federal court. We affirm the judgment of the distric...
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Opinion This case is one of first impression concerning statutory preemption. With its passage of the Z’berg-Nejedly Forest Practice Act of *422 1973 (hereafter the FPA), 1 the Legislature established a comprehensive statutory scheme regulating the conduct of timber operations. At issue here is whether the FPA preempts a county’s attempt to control, by zoning ordinance, the location of ...
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Opinion Defendant, Tony Russell Walker, appeals from his conviction of first degree residential robbery and burglary, raising several *434 issues ranging from sufficiency of the evidence to instructional errors. For the reasons stated herein, we affirm. I Facts Prosecution Evidence: On September 7, 1992, at approximately 4:45 a.m., Officer Glenn Carr of the San Bernardino Police D...
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Opinion Eloise Anderson, as the Director of the California Department of Social Services (Department), appeals from the superior court’s issuance of a writ of mandate directing the Department to reevaluate California’s “need standard” under the Aid to Families with Dependent Children (AFDC) *453program and to publish the results of the reevaluation. In issuing the writ, the court found that Calif...
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Dissenting. — It is comprehendible how the tragic but “freak” accident in this instance has led the majority to stretch to conclude as a matter of law that Government Code section 831.7 yields no liability *481immunity to the school district in this case. Most certainly, resultant quadriplegia and eventual death to this young high school gymnast would evoke sympathy in anyone but the completely in...
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C. A. 9th Cir. Cer-tiorari granted. Brief of petitioner is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, February 23, 1996. Brief of respondent is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, March 22, 1996. A reply brief, if any, is to be filed pursuant to this Court’s Rule 25.3. Rule 29.2 does not apply....
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Opinion Claudell Moore appeals from a judgment of conviction for first degree burglary. He contends the jury was improperly instructed on the “entry” element of the offense, and insufficient evidence supported its implied finding of entry. An information charged Moore with residential burglary (Pen. Code, § 459 1 ) and a prior serious felony conviction (§ 667 subd. (a)). The information was...
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Opinion In this federal civil rights action against employees of the state Department of Social Services (State DSS or Department), the County of San Mateo (County) and the County Department of Social Services (County DSS), arising out of the suspension of appellants’ foster home license, the trial court sustained a demurrer without leave to amend on the ground that the defendants were ab...
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Opinion Applying Stangvik, v. Shiley Inc. (1991) 54 Cal.3d 744 [1 Cal.Rptr.2d 556, 819 P.2d 14], the trial court dismissed the instant action on forum non conveniens grounds. We find no abuse of discretion and affirm the judgment of dismissal. Background Appellants (Frank Rinauro and his wife Jean) filed a tort complaint (negligence, strict liability, failu...
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Opinion Reggie Robinson (appellant) was charged with and convicted (by jury) of arson. (Pen. Code, 1 § 451, subd. (b).) We reverse the judgment because the district attorney withheld exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83, 87 [10 L.Ed.2d 215, 218, 83 S.Ct. 1194]; § 1054.1, subd. (e)) and committed misconduct, and the trial court erroneously excluded defense evidence. ...
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ORDER This is an action by plaintiff alleging ERISA violations. By Order dated August 12, 1994, the Court denied plaintiff’s motion for reconsideration of the Court’s April 8, 1994 Order, rejecting plaintiffs argument that the ERISA plan recognized by the Court is invalid. The Court further dismissed plaintiffs action against defendant Equicor, Inc. and the Equitable Life Assurance Societ...
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Miguel Angel Rodriguez (“Rodriguez”) appeals from his conviction and sentencing for possession of a prohibited object in a federal prison in violation of 18 U.S.C. § 1791(a)(2) (1988). 1 Rodriguez argues that the district *304 court erred by 1) failing to give Ms requested jury instruction relating to the intent required by one of the defimtions of proMbited object specified in 18 U.S.C. § 17...
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44 F.3d 1431 32 Collier Bankr.Cas.2d 1377, 26 Bankr.Ct.Dec. 735,Bankr. L. Rep. P 76,321 In re HARRIS PINE MILLS, Debtor.George MAITLAND; Neil Robblee; Cary Garman, Plaintiffs-Appellants,v.John MITCHELL; John Mitchell, Inc., an Oregon corporation;Rodgers Higgins, and Harris Pine Mills, Inc., anOregon corporation, Defendants-Appellees.In re HARRIS PINE MILLS, Debtor.George MAITLAND; Nei...
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Opinion by Judge T.G. NELSON; Dissent by Senior Circuit Judge BRIGHT. OPINION I. OVERVIEW This case involves the prosecution of a formerly immunized witness and his wife. Filiberto Montoya is a real estate salesperson who was accused of laundering money for alien drug lords by making investments in local real estate. Montoya appeals his conviction following his conditional guilty plea to conspira...
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44 F.3d 1441 63 USLW 2433 Alexis BARRERA-ECHAVARRIA, Petitioner-Appellee,v.Richard H. RISON, Warden, Respondent-Appellant. No. 93-56682. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 20, 1994.Decided Jan. 12, 1995. Emily A. Radford and Lauri Steven Filppu, U.S. Dept. of Justice, Washington, DC, for respondent-appellant. Mark D. Kemple ...
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Opinion I. Introduction Defendant, Union Bank, seeks a writ of mandate pursuant to Code of Civil Procedure section 437c, 1 subdivision (/), compelling the respondent court to enter a summary judgment on the first amended complaint against plaintiffs who are 11 individuals, a trust, and an individual retirement account. We conclude that: defendant could rely on plaintiffs’ ...
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Opinion Plaintiff McMillin-BCED/Miramar Ranch North (McMillin-BCED), a California general partnership, appeals the judgment of the superior court in favor of the County of San Diego (the County), defendant and respondent, in McMillin-BCED’s action for refund of property taxes. *550 (Rev. & Tax. Code, 1 §§51, 5097, 5149.) Pursuant to California Constitution, article...
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Defendant Campbell Industries appeals the district court judgment following a jury verdict in favor of Plaintiff Joseph Figueroa under the Jones Act, 46 U.S.C.App. § 688, and Mr. Figueroa cross-appeals the trial court’s judgment setting off, from the verdict, the amount of benefits Mr. Figueroa had previously received under state workers’ compensation statutes and the Longshore & Harbor Workers...
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In this 42 U.S.C. § 1983 action, the district court entered a permanent injunction in favor of inmates at five Kern County jails. The inmates, who are pretrial detainees and convicted prisoners, appeal the district court’s refusal to enjoin prison officials from placing mentally disturbed or suicidal prisoners in safety cells. The county defendants cross-appeal the district court’s (1) injuncti...
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Benigno Pena-Carrillo entered a conditional plea of guilty to one count of illegal reentry, and was sentenced to the maximum of five years with a 3-year term of supervised release. He appeals the denial of his motion to dismiss the indictment against him because of alleged violations of the Speedy Trial Act. He also argues that the district court erred in applying the Sentencing Guidelines. We ...
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44 F.3d 834w Victoria FECHTER; Thor Fechter; Tordis Fechter; Harry R.Fechter, Plaintiffs-Appellants,v.Jana SHIROKY, Defendant,andDiane S. Goebel; Bonnie Supin; Marcie Cherek; Dawn Hardy;State of Nevada; Dan Bixler; Fred Fisher;David Dunn; Cheryl Levin; LaurelSwetnam; Jerry Carlin, etal., Defendants-Appellees. No. 94-16047. United States Court of Appeals, Ninth Circuit. S...
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31 Cal.App.4th 595 (1994) 37 Cal. Rptr.2d 117 THE PEOPLE, Plaintiff and Respondent, v. EDWARD GALOIA, Defendant and Appellant. Docket No. G013678. Court of Appeals of California, Fourth District, Division Three. December 16, 1994. *596 COUNSEL Brian A. Wright, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assis...
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Opinion We are required by this case to decide whether public school districts sued in actions seeking declaratory and injunctive relief under the federal Voting Rights Act of 1965 (42 U.S.C. § 1973 et seq.) are entitled to a defense provided by their insurance carrier pursuant to liability policies covering “all sums which the Insured shall become obligated to pay as damages ....
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Opinion I. Introduction Appellant appeals from his conviction for first degree burglary in connection with an incident occurring at a ranch in Sonoma County. He contends, on two separate but interrelated bases, that his conviction on this count cannot stand because (a) the crime of first degree burglary is contingent upon the building in question being inhabited by a person with a “possessory...
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Opinion Plaintiffs Gerald Geernaert and his wife Pamela Geernaert brought this action for damages against two defendants who formerly owned their residence, alleging fraudulent misrepresentation and concealment regarding significant structural and foundation problems with the property. The trial court dismissed the case after determining, on a demurrer, that defendants owed no duty to pla...
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43 F.3d 1334 UNITED STATES of America, Plaintiff-Appellee,v.Jose Teofilo SOLORIO, Defendant-Appellant,UNITED STATES of America, Plaintiff-Appellee,v.Bourne Bobby THOMAS, Defendant-Appellant. Nos. 93-50507, 93-50508. United States Court of Appeals,Ninth Circuit. Jan. 17, 1995. 1 Before: D.W. NELSON, and NOONAN, Circuit Judges, and KING*, District Judge.ORDER ...
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Appellant Wanda S. Flaten appeals the ruling of the district court affirming the decision of the Secretary of Health & Human Services (the “Secretary”) to deny disability benefit payments under section 223 of the Social Security Act (the “Act”), 42 U.S.C. § 423(a)(1). Flaten argues that the district court erred because her current disability, resulting from degenerative disc disease, should rel...
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Opinion Plaintiffs filed their complaint and petition for mandamus and injunctive relief seeking to compel defendant board of trustees of the California State University to follow Education Code sections 68050 and 68062, subdivision (h). The indicated Education Code sections relate to undocumented aliens establishing residency for purposes of determining applicability of resident or nonresident...
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*688 Opinion A jury convicted the defendant of one count of arson of an inhabited structure (Pen. Code, § 451, subd. (b)) 1 and one count of presentation of a fraudulent insurance claim (former Ins. Code, § 556, subd. (a)(1) [Stats. 1988, ch. 1609, § 1, p. 5864].) The court suspended the imposition of sentence and placed the defendant on probation for five years on con...
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513 U.S. 179 (1995) ASGROW SEED CO. v. WINTERBOER et al., dba DEEBEES No. 92-2038. United States Supreme Court. Argued November 7, 1994. Decided January 18, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT *181 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Stevens, ...
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513 U.S. 219 (1995) AMERICAN AIRLINES, INC. v. WOLENS et al. No. 93-1286. United States Supreme Court. Argued November 1, 1994. Decided January 18, 1995. CERTIORARI TO THE SUPREME COURT OF ILLINOIS *221 *221 Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Kennedy, Souter, and Breyer, JJ., joined, and in which Stevens, J., joined as to Parts I (except for the last ...
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513 U.S. 196 (1995) UNITED STATES v. MEZZANATTO No. 93-1340. United States Supreme Court. Argued November 2, 1994. Decided January 18, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *198 Thomas, J.,delivered the opinion of the Court, in which Rehnquist, C. J.,and O'Connor, Scalia, Kennedy, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring statement,...
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45 F.3d 328 148 L.R.R.M. (BNA) 2257, 129 Lab.Cas. P 11,265 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.S.R.D.C., INC., Respondent. No. 93-70280. United States Court of Appeals,Ninth Circuit. Argued and Submitted October 17, 1994.Decided Jan. 18, 1995. Angela Michelle Washington, N.L.R.B., Washington, DC, for petitioner. Thomas M. Gosselin and Jonathan K. Levy...
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45 F.3d 316 1995 A.M.C. 1815 Mario MICOMONACO and Mary Micomonaco, husband and wife,Plaintiffs-Appellants,v.STATE OF WASHINGTON; Department of Transportation; MarineDivision; and M/V Evergreen State Ferry,Defendants-Appellees. No. 93-36084. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 4, 1994.Decided Jan. 18, 1995. 1 Nicholas F. Co...
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Plaintiff Richard Atwood appeals from the district court’s grant of summary judgment in favor of defendant Newmont Gold Co. (“Newmont”) on Atwood’s Employment Retirement Income Security Act (“ERISA”) action alleging that he was wrongfully denied severance pay under the company’s employee benefit plan. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm. I ...
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47 F.3d 1499 UNITED STATES of America, Plaintiff-Appellee,v.Dennis Keith McCHRISTIAN, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.John Berry INGRAM, Defendant-Appellant. Nos. 92-10644, 92-10704. United States Court of Appeals,Ninth Circuit. Submitted Aug. 10, 1994.*Decided Jan. 18, 1995. David R. Mugridge, Fresno, CA, for defendant-appellant McChri...
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Citizens Commission on Human Rights (“CCHR”) appeals the district court’s grant of summary judgment in favor of the Food and Drug Administration (“FDA”) and Eli Lilly and Company (“Lilly”). The district court rejected CCHR’s claims that the FDA did not adequately respond to its Freedom of Information Act (“FOIA”) request, 5 U.S.C. § 552 (1988), and that the agency improperly withheld responsive d...
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BACKGROUND On August 9, 1990, the Office of Thrift Supervision (“OTS”) filed a notice of charges against Petitioner Charles Keating, Jr. and other defendants. Subsequently, all defendants but Keating settled the cases against them. Keating’s hearing was conducted before Paul Clerman, an Administrative Law Judge (“ALJ”) appointed for this proceeding by Timothy Ryan, who was then Director of...
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ORDER The opinion filed in this ease on August 30, 1994, reported at 34 F.3d 781 (9th Cir.1994), is withdrawn. OPINION The executor of Dr. Doe’s estate appeals from the district court’s judgment, after a nonjury trial, denying Dr. Doe’s claim for damages under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Act). The district court had jurisdiction under 28 U.S.C...
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ORDER Upon the vote of a majority of nonreeused regular active judges of this court, it is ordered that this ease be reheard by the en banc court pursuant to Circuit Rule 35-3. ...
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Opinion — Appellant Marshall Edward Mikels was convicted on numerous charges of grand theft and the making of false financial statements; appellant Michael Gregory Counts was convicted on charges of receiving stolen property. All the charges against both appellants arose from multiple thefts of lumber from lumber companies. Appellants raise numerous contentions of error. We conclude ...
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Opinion — This is an appeal from the portion of a judgment which grants a peremptory writ of mandate commanding the Secretary of *750 State 1 to conduct primary elections to select nominees of the Green Party of California (Green Party) in accordance with two rules adopted by officials of the party in lieu of compliance with the procedures specified by the Elections Code. 2 One rule req...
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Opinion At a jury trial defendant was convicted of being a felon in possession of a firearm (count one, Pen. Code, § 12021, subd. (a)); driving recklessly while fleeing from a police officer (count two, Veh. Code, § 2800.2); and auto theft with an armed enhancement (count three, Veh. Code, § 10851, subd. (a), Pen. Code, § 12022, subd. (a)(1)). At a bifurcated trial before the court, it was foun...
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Opinion This appeal involves the construction and applicability of California Uniform Commercial Code section 4302 1 which requires a bank to give notice of dishonor or refusal to pay a check by midnight of the day following receipt of the check, otherwise known as the “midnight deadline” rule. Here, over $2 million in losses were sustained when two individuals, Tony Lam and Pe...
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OPINION I MCI Telecommunications Corporation (“MCI”) appeals an order of the bankruptcy court denying MCI’s motions to stay an adversary proceeding pending arbitration and for relief from the automatic stay to assert a counterclaim in the arbitration proceeding. We hold that a bankruptcy court must enforce an agreement to arbitrate a claim that is noneore. Accordingly, we REVERS...
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Opinion Carole Lynne Alberts was convicted in a court trial of two counts of attempted arson of an inhabited structure (Pen. Code, §§ 664, 451, subd. (b), counts I and II,) and making a terrorist threat (Pen. Code, § 422, *1426 count III). 1 She meritoriously contends that she was improperly charged and sentenced pursuant to the general attempt statute, i.e., secti...
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Sup. Ct. Ala. Certiorari granted, judgment vacated, and case remanded for further consideration *1124in light of Allied-Bruce Terminix Cos. v. Dobson, ante, p. 265....
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Opinion In consolidated cases, the People appeal from the orders of the Santa Barbara Superior Court granting Efrain Avina Samano’s and Juan Jose Castro-Gaxiola’s petitions for writs of habeas corpus.1 They sought release from custody pursuant to Penal Code section 859b on their own recognizance after the preliminary hearing was continued.2 The People contend that the superior court erred in ruli...
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513 U.S. 352 (1995) McKENNON v. NASHVILLE BANNER PUBLISHING CO. No. 93-1543. United States Supreme Court. Argued November 2, 1994. Decided January 23, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *353 Kennedy, J., delivered the opinion for a unanimous Court. Michael E. Terry argued the cause for petitioner. With him on the briefs were Elaine R. Jones, Theodore M. S...
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45 F.3d 1345 75 A.F.T.R.2d 95-1057, 95-1 USTC P 50,094,31 Fed.R.Serv.3d 1441 Ollie B. HADLEY, Plaintiff-Counterclaim-Defendant-Appellant,v.UNITED STATES of America, Defendant-Counterclaimant-Appellee. No. 93-56721. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 6, 1994.Decided Jan. 23, 1995. Robert B. Schachter and William Beverly, Hitchcock...
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45 F.3d 348 75 A.F.T.R.2d 95-758, 95-1 USTC P 50,062 David M. KELLEY; David M. Kelley, Executor; Estate ofNancy I. Kelley, Deceased, Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee.David M. KELLEY; Mary L. Kelley, Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. Nos. 93-70867, 94-70113. United States Court ...
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OPINION A minor and her guardian filed a civil suit in state court alleging that the debtor had had non-consensual sexual intercourse with *21 the minor. The debtor filed a Chapter 7 2 petition prior to the state court trial. The minor’s attorney alleged that he never received the notice of the § 341(a) meeting of creditors, but did receive actual notice of the...
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AMENDED OPINION Mason-McDuffie Mortgage Corporation (“Mason”) is the assignee of a security interest in a house owned by John Jeffrey Peters (“debtor”), a chapter 13 debtor. The debtor filed his chapter 13 petition immediately pri- or to the nonjudicial foreclosure sale of the house by Mason’s predecessor-in-interest. It was later discovered that Mason had been continuing the date of ...
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*1035 Opinion Prior to recent amendment, the State Lottery Act provided: “The right of any person to a prize shall not be assignable, except that payment of any prize may be paid . . . to a person designated pursuant to an appropriate judicial order. . . .” (Gov. Code, § 8880.32, subd. (g), as amended by Stats. 1992, ch. 500, § 3.) The sole issue presented in this appeal is wheth...
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31 Cal.App.4th 1001 (1995) 38 Cal. Rptr.2d 401 THE PEOPLE, Plaintiff and Respondent, v. PAUL GREEN, Defendant and Appellant. Docket No. A059099. Court of Appeals of California, First District, Division One. January 20, 1995. *1006 COUNSEL Michael Satris, under the appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assista...
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9 Cal.4th 493 (1995) 886 P.2d 1271 37 Cal. Rptr.2d 278 THE PEOPLE, Plaintiff and Respondent, v. JOHN MARTIN SIMON, Defendant and Appellant. Docket No. S036981. Supreme Court of California. January 23, 1995. *496 COUNSEL Thomas F. Coleman, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, C...
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Opinion Petitioners KOVR-TV, Inc., and Mark Saxenmeyer, defendants in the underlying action, seek a writ of mandate directing respondent superior court to vacate its denial of their motion for summary judgment and to grant the motion. We issued an alternative writ and stayed proceedings in the superior court. After further review of the evidence offered in the summary judgment proceedings...
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Opinion A federal statute exempts stocks and obligations of the United States government from state taxation. (31 U.S.C. § 3124(a) [hereafter section 3124(a)].) The federal statute prohibits “each form of taxation that would require the [federal] obligation, the interest on the obligation, or both, to be considered in computing a tax . . . .” We granted review in this case to determine wh...
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Opinion Defendant and appellant Albert K. Johnson (appellant) was charged in an indictment with three counts of forcible oral copulation (Pen. Code, § 288a, subd. (c)), 1 three counts of forcible penetration by a foreign object (§ 289, subd. (a)), one count of rape (§ 261, subd. (a)(2)) and one count of second degree robbery (§§ 211, 212.5, subd. (b)). The indictment also alleg...
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OPINION OVERVIEW The debtor and his spouse executed a marital settlement agreement which transferred to the spouse as her separate property a beneficial interest in a partnership held for her in trust and separate ownership of the family residence. In return, the debtor received as separate property his spouse’s community interest in his medical practice and in his legal educatio...
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OPINION I The court denied the appellant’s application to be employed as counsel for the debtor in possession on the basis that counsel was not disinterested. Later, the appellant filed a fee application requesting administrative claim status for the fees it charged in providing services to the debtor in possession. The court denied this application. We AFFIRM, but base our ruli...
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Cyrus Ghazali, a federal prisoner, appeals pro se from the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that his constitutional rights were violated while he was a pretrial detainee at the Clark County Detention Center. The district court dismissed Ghazali’s action pursuant to a Nevada district court local rule because Ghazali failed to file an opposition to the motion of Sh...
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Washington Trout, the United Food and Commercial Workers, Local 1439, and the Central Basin Audubon Society brought a Clean Water Act citizen suit against McCain Foods alleging violations of 33 U.S.C. § 1251 et seq., and R.C.W. § 90.48.010 et seq., based on the discharge of pollutants from a potato processing plant owned by the defendant. The district court dismissed the lawsuit for lack of sub...
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45 F.3d 1355 Roger Matthew WALTERS, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Respondent-Appellee. No. 92-35226. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 2, 1993.Filed Dec. 8, 1993.Rehearing Granted and Opinion Withdrawn Jan. 24, 1995.Decided Jan. 24, 1995. Charles Fadeley, Eugene, OR, for petitioner-appellant. Brenda J. ...
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Richard Santiago appeals his conviction for the first degree murder of Johnny Estrada, a fellow inmate at the United States Penitentiary at Lompoc, California (“USP-Lom-poc”). Santiago argues that the district court erred in admitting evidence relating to the Mexican Mafia, a prison gang at USP-Lompoc, because it should have been excluded under Federal Rule of Evidence 404(b) and because it vio...
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Opinion I. Introduction This is an appeal from a declaratory judgment entered in favor of the insurer, respondent Transcontinental Insurance Company (Transcontinental), and against the insured, appellant The Cooper Companies, Inc. The trial court held that two liability insurance policies issued to Cooper Laboratories (Cooper Labs), and its wholly owned subsidiary, CooperVision (late...
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Opinion Adolfo J. Torrez appeals from a judgment of conviction of two counts of driving while under the influence of alcohol (Veh. Code, §23152, subds. (a), (b)), and one count of driving while his license was suspended for a prior conviction of driving under the influence (Veh. Code, § 14601.2, subd. (a)). The first two counts were felonies *1087because appellant had incurred three prior convicti...
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Opinion This case again presents the question: when is a comprehensive release enforceable? The San Diego Hospice (Hospice) acquired land formerly owned by the County of San Diego (County), and later discovered the land was contaminated by hazardous materials. Hospice made a claim against County, which claim was settled. The settlement agreement and release contemplated that “[additional ...
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Opinion The initial questions posed by this appeal as to the validity of a residential growth control initiative, chapter 32A of the City of Oceanside Municipal Code, commonly known as Proposition A (Prop. A), adopted by the voters of the respondent City of Oceanside (the City), were answered by this court in our opinion filed July 19, 1994, in Building Industry Assn, (also ref...
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Opinion Defendant James Marshall Cowan was charged by information with possession of methamphetamine for sale (Health & Saf. Code, § 11378). After his motion to suppress evidence (Pen. Code, § 1538.5) was denied, defendant pleaded no contest to the charge. The court suspended imposition of sentence and placed defendant on probation for three years upon condition, inter alia, that he serve...
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45 F.3d 1365 63 USLW 2465 Maurice S. THOMPSON, Charles A. Green, John Gzikowski, KeithD. Williams, Ronald E. Lanphear, Chol Soo Lee, and Andrew E.Robertson, Individually and on behalf of all otherssimilarly situated, Plaintiffs-Appellants,v.James GOMEZ, Director, California Department of Corrections;George Sumner, Warden, California State Prison atSan Quentin, Defendants-Appellees. No....
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46 F.3d 895 1995 A.M.C. 850 MARYLAND NATIONAL BANK, Plaintiff-Appellant,v.The VESSEL MADAM CHAPEL, OFFICIAL NO. 924662; a.k.a. LOIKA,OFFICIAL NO. 942142; a.k.a. SEAQUESTER, OFFICIAL NO.942142, her engines, masts, anchors, cables, chains,rigging, tackle, apparel, furniture, and all the necessariestherewith appertaining in rem, Defendants,andMatthew O. Jones, Claimant-Appellee. No. 93-...
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The issue before us is whether the government was substantially justified in taking the position that an undercover informant was not an employee. I. FACTS The United States challenges the award of attorney’s fees granted to Horio under the Equal Access to Justice Act, 28 U.S.C. § 2412, for a petition for certification as a government employee brought under the Westfall Act, 28 U.S.C. § 267...
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Franklin J. Reno (“Reno”) petitions for judicial review from a final order of the National Transportation Safety Board (“NTSB”), suspending his commercial pilot certificate for 10 days. Reno failed to secure the proper endorsements on his student pilot *1377 certificate and logbook, in violation of Federal Aviation Regulations (“F.A.R.”), 14 C.F.R. §§ 61.87(d) and 61.93(c)(2). We have jurisdi...
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Appellant Ronald E. Bemis brought a civil rights action under 42 U.S.C. § 1983 against police officers Tim Edwards, Leo Lotito, Perry Aldrich, and the City of Bend, Oregon (“Appellees”) in which he claimed that the police had used excessive force against him. In his appeal from a jury verdict for the Appellees, Bemis argues that the trial judge improperly excluded from evidence portions of a ta...
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C. A. 11th Cir. Certiorari granted....
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Opinion James R. Godwin appeals from judgment entered following a jury trial in which he was convicted of possession of a destructive device *1114or explosive with the intent to injure, intimidate, or terrify any person or with the intent to wrongfully injure or destroy any property (Pen. Code, § 12303.3). He contends the trial court committed prejudicial instructional error. Statement of Facts an...
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Sup. Ct. Ala. Certiorari granted....
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Opinion Plaintiff Gould brought this action against his former employer and two management-level employees after he was terminated as a sales representative. The trial court sustained demurrers to each cause of action and dismissed the complaint. We have concluded some of Gould’s allegations state causes of action while some do not. Therefore we reverse the judgment of dismissal and reman...
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Opinion Introduction This writ proceeding, initiated by the People, was triggered by the trial court’s dismissal of a pending criminal prosecution for failure to bring the defendant to trial within the period mandated by Penal Code section 1382. This cause, therefore, requires us to determine the legality of the case management policy which led to the dismissal order. We conclude that the trial c...
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ORDER ENJOINING ELECTIONS PENDING PRECLEARANCE OF PERMANENT PLAN EXCEPT FOR COURT-ORDERED SPECIAL ELECTION IN 1995 I. INTRODUCTION This is a case in which the plaintiffs challenged the implementation of six Monterey County ordinances on the ground that they were not precleared as required by the Voting Rights Act, 42 U.S.C. § 1973c. The ordinances consolidated two municipal and seven justice ...
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Opinion The day after 12-year-old Jennifer Lawson received a transfusion, her doctor discovered the blood was contaminated with HIV antibodies. Although the same doctor continued to treat Jennifer, he never told her or her parents about the tainted blood. Three years later, Jennifer started dating Daniel Reisner and they became intimate. Two years later, the doctor told Jennifer she had A...
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Opinion We are asked in this case to extend the “good faith” exception to the Fourth Amendment’s exclusionary rule to salvage a confession obtained in violation of the Fifth Amendment. We decline. Background James Powell was at Yvonne Lane’s apartment when Appellant Val Lamar Smith (who is deaf) and four other men (“Howard,” “Vincent” and two others who remained nameless) arrived. Smith and...
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Opinion Petitioner (plaintiff) seeks a writ of mandate directing the respondent superior court to vacate its order sustaining without leave to amend the demurrer of real party in interest Dennis Montgomery (Montgomery) to the first cause of action of plaintiffs second amended complaint, and to enter an order overruling the demurrer. At issue is whether a supervisor can be held personally ...
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OVERVIEW Petitioner Giedrius Leo Kazlauskas was found deportable by an immigration judge (“IJ”) and Kazlauskas’ applications for asylum and temporary withholding of deportation were denied. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s decision, and Kazlauskas appeals. We have jurisdiction pursuant to 8 U.S.C. § 1105a, and we affirm. FACTS Kazlauskas was born in Kaunas, Lithuania in 1...
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*1466 Opinion I. Introduction In this case we hold that the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) does not require an environmental impact report (EIR) for a project that might be affected by preexisting environmental conditions but will not change those conditions or otherwise have a significant effect on the environment. Bi...
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Defendants Jose Manuel Pinto (“Pinto”) and Edgar Florez (“Florez”) appeal from their sentences under the Sentencing Guidelines following their guilty pleas for conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 846. Both defendants appeal denial of a downward departure under U.S.S.G. § 2D1.1, Application Note 16. Defendant Pinto al...
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46 F.3d 1449 63 USLW 2486, 97 Ed. Law Rep. 675 Albert C. WALKER; Roberta M. Walker; John C. Soso;Jacklyn C. Soso; Margaret Smith; Alyce Crosdale;Betty Sands, Plaintiffs-Appellees,v.SAN FRANCISCO UNIFIED SCHOOL DISTRICT, Defendant,andUnited States Department of Education; Lamar Alexander, inhis official capacity as Secretary of Education,Defendants-Intervenors-Appellants.Albert C. WALK...
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OPINION We have before us in these consolidated appeals and cross-appeals another in a series of disputes between the Hopi and Navajo tribes stemming from what was once characterized as “ ‘the greatest title problem of the West.’ ” Healing v. Jones, 210 F.Supp. 125, 129 (D.Ariz.1962), aff'd 373 U.S. 758, 83 S.Ct. 1559, 10 L.Ed.2d 703 (1963) (per curiam). The Nav...
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Kelly Kay Wegner (“Wegner”) appeals her sentence under the Sentencing Guidelines following her guilty plea for drug manufacturing and trafficking. She argues that the district court miscalculated her base offense level by erroneously applying the one kilo *925 gram to one marijuana plant conversion ratio in U.S.S.G. § 2Dl.l(e) n.*. FACTS AND PRIOR PROCEEDINGS On November 10,1992, Kelly Wegn...
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Wagon Wheel Bowl, Ine. (“Company”) petitions for review of the National Labor Relations Board’s (“Board” or “NLRB”) decision and order finding that the Company committed unfair labor practices by unlawfully polling its union employees and by other actions taken by the Company after the polling. The Company argues that the Board applied the wrong legal standard in determining the lawfulness of t...
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Gary Lamont Williams pleaded 'guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). Williams appeals from his 188-month sentence imposed under the Sentencing Guidelines. He claims his sentence was improperly enhanced by the district court’s application of the Career Offender provisions set forth in United States Sentencing Guidelines (U.S.S.G.) § 4B1.1 (Nov. 1990). The court...
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The only issue in this appeal is how we review a Board of Immigration Appeals affir-mance which adopts the decision of the immigration judge, instead of articulating the Board’s reasons in its own words. FACTS Alaelua came to the United States from Western Samoa in 1978, when he was 21. He was admitted as a lawful permanent resident. In 1987, he was convicted of selling heroin five ti...
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Opinion I. Introduction Defendant Robert Gonzales was charged by information with first degree burglary (Pen. Code, §§ 459, 460, subd. (a)). 1 The information alleged three prior serious felony convictions (§ 667.5, subd. (a)) and four prior prison terms (§ 667.5, subd. (b)). A jury found defendant guilty of the substantive charge; in a separate proceeding, the trial court found all the enh...
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Opinion This is an appeal from a judgment of nonsuit entered in a medical malpractice action. Plaintiff Ricardo C. Espinosa, Jr., brought this action through his guardian ad litem for brain damage allegedly sustained by him due to the negligence of defendants Little Company of Mary Hospital (Hospital), which performed certain prenatal care and testing, and Dr. Michael L. Friedman who was ...
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*1326 Opinion Carolina Lanes, Inc. (Lanes or judgment debtor) appeals an order denying its motion to vacate and quash a writ of execution obtained by judgment creditor Regency Outdoor Advertising, Inc. (Regency or judgment creditor). Carolina Enterprises, Inc. (Enterprises or sublessee) appeals an order denying its third party claim which asserted a sublessee interest in the...
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Opinion Plaintiffs and appellants Joel DiMarco and Linda DiMarco (collectively, DiMarco) appeal a judgment insofar as it awards $19,575 in attorney fees and other costs to defendant and respondent Dixie N. Chaney (Chaney). The essential issues are whether the arbitrator exceeded his powers by denying an award of attorney fees and costs to Chaney, and whether the trial court erred in ...
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31 Cal.App.4th 1218 (1995) 37 Cal. Rptr.2d 875 STEVEN GERVASE et al., Petitioners, v. THE SUPERIOR COURT OF SAN JOAQUIN COUNTY, Respondent; PRUDENTIAL SECURITIES, INC., et al., Real Parties in Interest. Docket No. C017925. Court of Appeals of California, Third District. January 26, 1995. *1223 COUNSEL Archibald M. Mull III and Allan S. Haley for Petitioners. No appearance for Respondent. *1224 St...
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Opinion In this appeal we consider the scope of a surety bond issued by respondent United States Fidelity and Guaranty Company (USF & G) for the benefit of its obligee, appellant Airlines Reporting Corporation (ARC). The surety bond covered the default of the principal, a travel agency, when the agency failed to pay for airline tickets issued according to an agreement between ARC and the ...
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Opinion Zador Corporation, N.V., appeals after the trial court disqualified Heller, Ehrman, White & McAuliffe (Heller) from serving as Zador’s counsel. For reasons we shall explain, we reverse. Facts and Procedural Background In 1983, Zador purchased the “Platt Property.” The Young family owned Zador. C. K. Kwan, acting as agent for the Young family, received the Platt Prope...
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OPINION The debtors filed an objection to an amended proof of claim filed by a secured party after the secured party foreclosed on the collateral eight months after repossession. The debtors assert, in an effort to bar the secured party from obtaining a deficiency judgment, that the secured party elected to retain the collateral in satisfaction of the obligation and that the sale was ...
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Robert Borregard appeals an NTSB decision affirming an FAA Emergency Order revoking his aircraft mechanic certificate and inspection authority on the charge that Bor-regard altered an aircraft’s maintenance logs for a fraudulent purpose in violation of 14 C.F.R. § 43.12(a)(3). Borregard contends that the Board’s finding that he breached § 43.12(a)(3) is not supported by substantial evidence and t...
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Raymond Mongeluzo appeals the district court’s grant of summary judgment in favor of the appellees, the Baxter-Travenol Long Term Disability Benefit Plan, Connecticut General Life Insurance Company, and Dynamic Controls, a division of Baxter Travenol Laboratories. Mongeluzo’s action is based on the denial of his claim for long-term disability benefits pursuant to section 502(a) of the Employee Ret...
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The City of Long Beach and the State of California (plaintiffs) appeal from a jury verdict against them and in favor of Exxon. They take issue with four jury instructions given by the trial court and with evidentiary rulings made during the trial. Because we find that the claimed error, if any, in the formulation of the jury instructions was harmless, and because we find that the district court di...
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James E. Bryant appeals the district court’s order granting the defendants’ motion for summary judgment. Bryant contends that the district court erred by refusing to grant him relief, pursuant to 42 U.S.C. § 1983, requiring the defendants to provide full religious Pentecostal services at the prison where Bryant is an inmate. We reject this contention and affirm. *949 We review the district co...
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Opinion Theodore Flynn appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a deadly *1390 weapon (Pen. Code, §245, subd. (a)(1)) 1 and court findings that he had suffered three prior serious felony convictions (§ 667, subd. (a)). He was sentenced to prison for a total term of eighteen years, comprised of a three-...
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Opinion In this writ proceeding Arnold Paul Mundy challenges the constitutionality of the newly enacted asset forfeiture law, *1399 Statutes 1994, chapter 314. (Health & Saf. Code, 1 § 11469 et seq.) 2 We find the law withstands constitutional scrutiny and deny Mundy’s claim for extraordinary relief. I Factual and Procedural Background Thi...
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*1366 Opinion Cesar Javier Olguin and Francisco Calderon Mora were convicted of second degree murder for the killing of John Ramirez. In addition, firearm and criminal street gang enhancements were found to be true. Both defendants appealed on several grounds, 1 and we consolidated the cases for review. I In March 1992, Olguin lived on West Elder in Santa Ana...
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46 F.3d 54 23 Media L. Rep. 1446 DESTINATION VENTURES, LTD., an Oregon corporation; LutzParalegal Services, Inc., a New York corporation; PorterCapital Corporation, a Delaware corporation; NationalFaxlist, a New Jersey sole proprietorship; James R. Lock,dba Lock Travel Service, Plaintiffs-Appellants,v.FEDERAL COMMUNICATIONS COMMISSION, a federal agency; JamesH. Quello, in his capacity...
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OPINION The appellant, Pamela J. McLeod (“McLeod”), appeals from summary judgment on her claims pursuant to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1371 (West Supp.1994). McLeod argued before the district court that the ERISA plan administrator breached a fiduciary duty under 29 U.S.C. § 1104(a)1 by failing to notify her that effective May 1, 1990, she had become ...
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The issue in this case is how to decide whether a coconspirator is responsible for an amount of drugs for the purposes of statutory minimum sentencing. Facts A Border Patrol agent in Naco, Arizona, saw a van drive across the border from Mexi- *997 eo. It drove off the road in a place where the fence was down. Its headlights were off, even though it was dark out. He chased it. It rammed thro...
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47 F.3d 336 Kamla PRASAD; Meena Kumari Prasad; Catherine SandhyaPrasad; Micky Sudesh Prasad; Ricky Sumit Prasad,Petitioners,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 94-70132. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1994.Decided Feb. 1, 1995. Alan M. Kaufman, San Francisco, CA, for petitioners. David M. McCo...
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This case presents the question of whether research expenditures made by a partnership, that was formed in order to develop new technology, were incurred in connection with the partnership’s trade or business, so as to be deductible expenses under 26 U.S.C. § 174. William Scoggins and Robert Christensen were the sole partners in the partnership. They also formed a corporation in which they held...
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Opinion Four tenants of a mobilehome park protested the park owner’s request for a rental increase. This exercise of free speech and right to protest resulted in their being named as defendants in the park owner’s action against the city for failure to grant the total relief requested. Do the tenants have to remain in the lawsuit and represent unwillingly the rest of the mobilehome park t...
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Opinion Appellants Robert Lineaweaver, Floyd King, and Ralph Ward brought actions against numerous asbestos suppliers seeking to recover for personal injuries sustained from their repeated exposure to asbestos insulation products. A bifurcated trial on the separate issues of damages and liability proceeded against a lone defendant, respondent Plant Insulation Company (Plant). A jury found each ap...
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Opinion Defendants and appellants Casa de Palms, Ltd., Tumanjan Development Corporation, Michael Tumanjan, and George Tumanjan appeal from a default judgment in favor of plaintiff and respondent Metropolitan Service Corporation and from an order denying defendants’ motion pursuant to Code of Civil Procedure section 473 to set aside the default. 1 Factual and Procedural Backgr...
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Opinion Introduction Plaintiff Maureen Mero appeals from a summary judgment in favor of defendant Armin Sadoff, M.D. Statement of Facts The following facts are undisputed: On November 14, 1989, plaintiff injured her back while at work for Shell Oil Company (Shell). She filed a claim for workers’ compensation benefits from Shell. At the time, Shell was self-insured. In ...
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Opinion Plaintiffs, owners of a family dairy farm, sued defendants, milking machine manufacturers, for lost profits and general and punitive damages. After a jury trial and various posttrial proceedings, judgment was entered for plaintiffs on two counts and for defendants on the remaining counts. Both parties appeal, raising more than 20 issues arising from virtually every stage of the ca...
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OPINION I. FACTS In September 1989 Debtor William Ramsey (“Ramsey”) entered into negotiations to borrow money to refinance his house. A group of investors (“the Investors”) 2 became the lenders under the note and are the appel-lees to the instant appeal. Vista Mortgage Corporation (“Vista”) arranged the loan as real estate broker, prepared the required federal disclosu...
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I Frank Distasio appeals a denial of disability benefits for the period after February 1990. Distasio claims that the Administrative Law Judge’s decision that he could perform light work and therefore was not disabled after that date was without foundation and was not based on substantial evidence. The government claims the denial was based on substantial evidence. We reverse and remand for an ...
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47 F.3d 350 63 USLW 2494 John GARAMENDI, Insurance Commissioner of the State ofCalifornia, in his capacity as Liquidator of MissionInsurance Company, Mission National Insurance Company,Enterprise Insurance Company, Holland-America InsuranceCompany and Mission Reinsurance Corporation, as successor toRoxani Gillespie, Insurance Commissioner of the State ofCalifornia, in her capacity as Liqui...
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ORDER The opinion, 38 F.3d 1525, is amended as follows: the last paragraph of page 13245 [p. 1532] of the slip opinion (beginning “We need not”) and the first two words of the following *970 paragraph on p. 13246 (“In addition,”) shall be deleted. ...
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These appeals address the authority of the United States to apprehend individuals on the high seas and the jurisdiction to prosecute them for violations of the Maritime Drug Law Enforcement Act (MDLEA), 46 U.S.C.App. §§ 1901-04. Defendants entered conditional guilty pleas to charges of possession of drugs with intent to distribute, 46 U.S.C. § 1903(a), and arson, 18 U.S.C. § 81. All reserved the ...
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We must decide whether a former partner can consent to extend the limitations period for the assessment of federal income tax attributable to the partnership’s activities. I Monetary II Limited Partnership (“Monetary” or “the partnership”) is a California limited partnership that invests in oil and gas properties. At its formation, the partnership had only two- general partners, Arthu...
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Opinion harles J. Pankow appeals a judgment vacating an arbitration award. 1 The issue before us is whether an arbitration award must be vacated because an arbitrator was formerly a partner in a law firm during a period when the firm represented a business entity in which one of the arbitrating parties had a financial and/or leadership interest, even though the arbitrator was n...
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Opinion Service Employees International Union Local 715, AFL-CIO (the Union), appeals from a judgment denying declaratory relief against respondents, the City of Redwood City and the Redwood City Fire Department (collectively, the City). The trial court held that the Fire Prevention Officers (FPO’s) employed by the City and represented by the Union were not “peace officers” within the mea...
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*81 Opinion In this case, a liability insurer defended its insured under a reservation of rights that created a conflict of interest between the two of them. The issue on appeal is whether a liability insurer can sue its insured’s Cumis counsel 1 for negligence based on a breach of statutory duty for failing — in contravention of Civil Code section 2860 — to...
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Opinion This consolidated proceeding involves seven petitions for writ of mandate; in four of such petitions, petitioners, plaintiffs in the action below, seek to vacate those parts of the trial court’s orders of June 27, 1994, and August 4,1994, precluding petitioners from calling Francisco Robleto, a former employee of real party in interest and defendant Commercial Building Maintenance...
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OPINION OVERVIEW More than one year prior to filing a chapter 7 petition, the debtor and his wife trans *535 muted their joint ownership in their residence into the separate property of the wife. No contemporaneous recording of the transaction was performed, but within one year of the bankruptcy filing, the debtor executed and recorded a quitclaim deed to the residen...
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ORDER AMENDING OPINION ON RECONSIDERATION By opinion filed March 18, 1994, this court granted plaintiff Staefa Control System Inc. (“Staefa”) summary judgment that defendant St. Paul Fire & Marine Insuranee/St. Paul Mercury Insurance Co. (“St. Paul”) had a duty to defend plaintiff in an underlying action pending in this district, Hudson v. Andrade, No. C-91-1772 TEH (N.D.Ca...
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We must decide whether the Maritime Drug Law Enforcement Act, 46 U.S.C. app. §§ 1901-1903, can be applied, consistent with due process, to defendants apprehended aboard a “stateless” vessel on the high seas when there is no nexus between the defendants and the United States. I. BACKGROUND This is an appeal from the district court’s order granting a defense motion to dismiss. We accept...
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47 F.3d 999 RED ALARM, INC., a California corporation, Plaintiff-Appellant,v.WAYCROSSE, INC., a Delaware corporation, doing business asSilent Knight Security Systems; Silent Knight SecuritySystems of Minnesota, Inc., a Minnesota corporation; DoesOne through Ten, inclusive, Defendants-Appellees. No. 93-16087. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. ...
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Opinion Defendant Jaime Antonio Garza was charged by information with possession of cocaine for sale. (Health & Saf. Code, § 11351.) The information further alleged various prior felony convictions. A jury found defendant guilty of the new offense and, in a bifurcated proceeding, defendant admitted all the alleged priors. The trial court sentenced defendant to seven years in state prison,...
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AMENDED ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT, (2) DENYING MOTION FOR JUDGMENT ON THE PLEADINGS, AND (3) GRANTING LEAVE TO AMEND COMPLAINT Introduction This is an action for recovery of clean up costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. § 9601, et seq. (hereina...
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Opinion The Legislature enacted in 1992, and amended in 1994, Health and Safety Code section 1418.8. That amended statute generally allows certain incompetent patients residing in skilled nursing facilities or intermediate care facilities to receive medical treatment, after a physician has determined a patient’s incapacity to give informed consent to such treatment and an interdisciplinar...
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Opinion Plaintiff State Compensation Insurance Fund (SCIF) filed an action against its former insureds, Robert and Judy Brown, alleging its right to recover premiums due on the insurance contract. 1 The defendants, doing business as Mountain Valley Trucking (MVT), successfully moved for summary judgment on the ground they were not contractually obligated to pay the premiums bec...
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Opinion Judge John Fitch of the Fresno County Superior Court, acting in propria persona, has petitioned for review of a unanimous recommendation by the Commission on Judicial Performance (Commission) that he be publicly censured for conduct which the Commission has found to constitute “conduct prejudicial to the administration of justice that brings the judicial office into disrepute.” (See Cal...
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47 F.3d 373 63 USLW 2591, Fed. Sec. L. Rep. P 98,524,31 Fed.R.Serv.3d 746 In re PACIFIC ENTERPRISES SECURITIES LITIGATION.Lee J. PRINCIPE; Ken Rudd; Steven Friedland; MyraFriedland; Leonard Held; Pisnoi Lumber & Trim Co., Inc.Pension Trust; Charles Thomas Miller; William Steiner;Pacific Enterprises, by Pisnoi Lumber & Trim Co., Inc.Pension Trust; Sheldon Shore; Edith Citr...
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48 F.3d 391 40 ERC 1289, 63 USLW 2520, 25 Envtl.L. Rep. 20,867 KLEENWELL BIOHAZARD WASTE AND GENERAL ECOLOGY CONSULTANTS,INC., a corporation, Plaintiff-Appellant,v.Sharon L. NELSON, Chairman; Richard D. Casad, Commissioner;A.J. Pardini, Commissioner; Acting in Their OfficialCapacity as Members of the Washington Utilities andTransportation Commission, Defendants-Appellees. Nos. 93-355...
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Opinion Statement of the Case On May 4, 1993, an information was filed in Kern County Superior Court charging appellant Luis Gonzales with two counts of check forgery, in *231 violation of Penal Code section 470, 1 and one count of possessing a dirk or dagger, in violation of section 12020, subdivision (a), to which he entered a plea of not guilty. Trial proceedings commenced June 30, 1...
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Opinion Herbert N. Davison appeals from his conviction for robbery. He contends that the trial court committed instructional error. We agree that the instructions were erroneous. However, we find that the error was harmless, and affirm. I. Factual and Procedural Background On the evening of February 10, 1993, Charlotte Rosebrough drove to a bank in Berkeley, parked her car in th...
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Opinion In this case we address the question whether Government Code section 831.7, 1 which provides qualified immunity to public entities and public employees for injuries sustained by a person during “hazardous recreational activity,” immunizes a school district from liability for injuries sustained by a minor student during a soccer match conducted as part of a junior high s...
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Opinion Topa Insurance Company appeals from an order denying a motion for discharge of forfeiture of a bail bond, and from the summary judgment granted in favor of the People of the State of California. It contends that because of the trial court’s delay in entering summary judgment, it lost jurisdiction to do so under the statutes in effect at the time, resulting in exoneration of the ba...
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Opinion This is an appeal from an order terminating child support upon a finding by the trial court that the child’s mother was intentionally frustrating the father’s efforts to maintain contact with the child. Contra Costa County, to whom the child support payments had been paid, appeals, arguing that mere interference with visitation, without concealment of the child, is not a sufficient grou...
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Opinion This appeal arises from the effort of plaintiff Timothy Kirk Evans, as personal representative of the estate of Larry Lloyd Royse, to enforce a money judgment against William and Emma Paye by executing on debts allegedly owed to them by their son, defendant Mark *270 Paye. 1 (Code Civ. Proc., §§ 700.040, 701.010 et seq. [under certain circumstances, these s...
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*289 Opinion While walking down a hotel hallway, two police officers passed the partially open door of a hotel room. Through the doorway, one of the officers observed defendant Fernando M. Ortiz in the room with a woman who was counting out tinfoil bindles and placing them on a table. Reasonably believing the bindles contained heroin, and fearing the contraband might be destroyed...
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Opinion Plaintiff appeals from a judgment of dismissal following an order granting defendants’ motion for summary judgment. Plaintiff’s complaint seeks damages for injuries suffered when her head struck the metal frame of a raft during a commercial rafting trip sponsored and conducted by defendants. The trial court concluded plaintiff’s negligence claim is barred by the doctrine of primar...
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Opinion Ernesto Diaz Colado appeals following revocation of his probation in case Nos. CR127310 and CR130618. We affirm. Background The facts are undisputed. Colado was, in case No. CR127310, convicted of possessing heroin for sale. While on probation from that offense he was, *262 in case No. CR130618, again convicted of sale of heroin, this time while armed with a firearm. Although se...
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*487Opinion I. Introduction Defendants, Daryl F. Gates, Matthew Hunt, Ronald Frankel, Ronald Banks, Paul Jefferson, and Bob Hansohn, all former or present senior commanders in the Los Angeles Police Department,1 seek a writ of mandate to compel the respondent court to sustain a demurrer to two of six causes of action in the first amended complaints brought by plaintiffs, Takeo Hirata, Fidel Lopez...
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Opinion Appellant Paul Hesse was injured in December 1990 while a guest at the Posada Real Best Western Hotel (the Posada) in the City of San Jose Del Cabo, Baja California, Mexico. He filed a personal injury lawsuit in 1991 in the Los Angeles County Superior Court, naming the Posada, Jig Stop Tours, a California travel agency, and respondent Best Western International, Inc. (respondent). Respo...
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Opinion The State of California seeks a prerogative writ to set aside an order of the superior court overruling its demurrer to the first amended complaint of real party in interest Allison Young. Young has sued the state for injuries she sustained when she fell off a horse on a trail in a state park. The state contends that Young cannot, as a matter of law, establish her premise for stat...
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Opinion The respondent superior court has declared unconstitutional, under the First Amendment, a San Jose city ordinance which outlaws targeted picketing within 300 feet of a targeted residence. The City of San Jose seeks expedited review of this decision by writ of mandate. Although the ordinance does not apply specifically to anti-abortion protesters, the present controversy arose when...
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Opinion This is the fourth opinion of the Court of Appeal spawned by insolvency proceedings involving Executive Life Insurance Company (ELIC), a series which threatens to eclipse in scope, if not in time, the 30-year history of similar past litigation involving Pacific Mutual Life Insurance Company of California. 1 In Texas Commerce Bank v. Garamendi (1992...
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Opinion A jury convicted appellants, David Anthony Jackson and Deon Lagrant Swayzer, of numerous counts of forcible rape, forcible oral copulation, robbery and kidnapping and found true several related enhancements for firearm use, kidnapping for sexual purposes and infliction of great bodily injury. Appellants appeal their convictions, contending the trial court made numerous sentencing and ot...
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Opinion We granted review to determine whether evidence not contained in the administrative record is admissible in a traditional mandamus action to show that a quasi-legislative administrative decision was a “prejudicial abuse of discretion” within the meaning of Public Resources Code *565 section 21168.5, a provision of the California Environmental Quality Act (CEQA) (Pub. ...
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Richard Ryerson Bernard appeals his two-count conviction for being a felon in possession of a firearm and ammunition, both in violation of 18 U.S.C. § 922(g)(1), on the ground that insufficient evidence existed to support a finding of possession in either case. Bernard also contends that the district court erred by running his sentence for the above conviction consecutively to the sentence he was...
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Jan Johnson appeals an adverse summary judgment on her claim for violation of her First Amendment right to free speech. Johnson claims that she was fired from her county job because of statements she made about her supervisor, statements she claims were protected by the First Amendment. The district court ruled that her speech was not protected, entered summary judgment against her § 1983 claim a...
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Opinion The question presented by this case is whether a killing which occurs during the perpetrator’s flight from a burglary occurs “in the perpetration” of the burglary and therefore is felony murder. We conclude that such a killing is felony murder and affirm the judgment. Facts Defendant entered a supermarket, grabbed $75 out of a cash register and ran. Several supermarket employees pur...
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Opinion Judy and William Henry appeal from a judgment dismissing their medical malpractice complaint after the trial court sustained respondent’s, Thomas Clifford, M.D., demurrer without leave to amend. The trial court ruled that the statute of limitations had run (Code Civ. Proc., § 340.5) and the action was barred by the doctrine of res judicata. We affirm and impose sanctions for the f...
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*428Opinion The parties contest the enforceability of a “gold clause,” a price-indexing contract clause used to adjust for inflation, which was contained in a 95-year ground lease executed in 1929. Plaintiffs, a small group of family trusts and individuals, are owners and lessors, and defendant is the current tenant and lessee. The parties are successors in interest to the 1929 ground lease of pr...
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Appellant Abe Ziskis, acting pro se, alleges that Arizona’s closed party primary election system violates the First and Fourteenth Amendments to the United States Constitu *1005 tion. 1 Ziskis registered as an independent voter in Maricopa County, Arizona on June 24th, 1992. As an independent voter, Ziskis could not vote in the Arizona state primary election held in September, 1992 because ...
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Defendant-Appellant Employers Health Insurance appeals the district court’s order remanding for a second time to the Arizona Superior Court Plaintiff-Appellee The Meadows’ state law action. The Meadows sued Employers Health Insurance for negligent misrepresentation, estoppel, and breach of contract arising out of an inquiry concerning coverage. The district court held that in the circumstances ...
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I. Eric Fikes appeals a district court judgment, entered upon a jury verdict, denying his claim for relief under 42 U.S.C. § 1983. Fikes argues that the district court erred in instructing the jury regarding the use of excessive force by police officers. He also contends that the district judge who initially presided over his case issued an illegal standing order requiring counsel for plaintiff...
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*448 Opinion Introduction Aura R. appeals from a 12-month status review order which continued family reunification services and denied her request for immediate return of her children, Tania and Norman. Tania (aged five) and Norman (ten months) were detained in protective custody in February 1992, pursuant to a petition alleging serious physical harm, failure to protect...
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Opinion In this appeal we determine that a defendant who uses a firearm after completing the act constituting burglary but before he has reached a place of temporary safety is subject to the firearm use enhancement of Penal Code section 12022.5, subdivision (a). A jury convicted defendant of two counts of burglary (Pen. Code, § 459), 1 being a felon in possession of a firearm (§ 12021, subd...
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Opinion Does the filing of an appeal by the People constitute a changed circumstance entitling the defendant to a bail review under Penal Code 1 section 1275? Under the facts of this case, we answer that question in the negative and deny the petition. *443 Background After jury trial with Judge Napoleon Jones presiding, Murray Weiner (Weiner) was convicted of first degree murder with pe...
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Opinion In the published portion of this opinion we will uphold the trial court’s decisions on two novel issues: (1) that plaintiff and respondent Brian E. Nordquist, a television station sports director/newscast anchor, is entitled to overtime compensation under subdivision 3 of Industrial Welfare Commission Order No. 11-80 (IWC Order No. 11-80) because he was not exempt as a professiona...
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Opinion The trial court denied Leola Kindt’s motion under Labor Code section 3856, 1 to allocate from a workers’ compensation lien an amount for attorney fees and costs she incurred in obtaining the judgment from which the lien was satisfied. She appeals, arguing there was insufficient evidence to show the lienholder actively participated in the lawsuit resulting in the judgmen...
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Opinion A 14-year-old child was killed by a third party while she was in the care of her foster parents. Plaintiffs, the natural mother and *588 siblings of the child, alleged that the foster parents’ negligent supervision caused or contributed to the child’s death. The foster parents demurred to plaintiffs’ amended complaint on the ground that plaintiffs failed to file a claim with the Foste...
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513 U.S. 374 (1995) LEBRON v. NATIONAL RAILROAD PASSENGER CORPORATION No. 93-1525. United States Supreme Court. Argued November 7, 1994. Decided February 21, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT *375 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. O'Connor, ...
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513 U.S. 1303115 S.Ct. 891130 L.Ed.2d 873 Edward J. O'CONNELL, Guardian Ad Litem for Baby Boy Richardv.Otakar KIRCHNER. John and Jane DOE v. Otakar KIRCHNER.Nos. A-555, A-558. Supreme Court of the United States Jan. 28, 1995. Justice STEVENS, Circuit Justice. 1 The guardian ad litem for Baby Boy Richard and his adoptive parents have filed with me in...
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The United States of America (“Government”) appeals the district court’s order reversing the magistrate judge’s imposition of a six month term of supervised release on Juan T. Reyes (“Reyes”) following the revocation of his probation. Reyes was convicted for driving without a valid license in violation of Hawaii law pursuant to the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. The Government c...
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49 F.3d 490 63 USLW 2546 BROOKSIDE ASSOCIATES, a California limited partnership;Douglas F. McRae, and Chad R. Turner, Plaintiffs-Appellants,v.Michael RIFKIN, husband, and Anita Rifkin, wife; FrederickWeaver, husband, and Denise Weaver, wife; Resolution TrustCorporation, as receiver for Southwest Savings and LoanAssociation, Defendants-Appellees. No. 93-15048. United States Court ...
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This case involves the offenses of moving survey markers and building a road on National Forest land. Caudle was hired by property owners to cut timber on their ranch. The ranch was surrounded by a national forest. At the rancher’s request, the government surveyed the boundary and clearly marked it, to avoid inadvertent trespass. The government charged Caudle with stealing trees, destroying a...
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47 F.3d 1015 Richard Donald CHAMBERS, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. Nos. 93-55780, 93-56031. United States Court of Appeals,Ninth Circuit. Feb. 21, 1995. 1 Before: Stephen REINHARDT and T.G. NELSON, Circuit Judges, and KAUFMAN,* District Judge. ORDER 2 The United States' motion to vacate judgment, wit...
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Opinion Plaintiff Jane D. brought suit against Father Michael Dermody. Beginning when she was 15, she sought counseling from him and he induced her to have sexual relations with him. Her suit resulted in a default judgment. Plaintiff then brought a declaratory relief action seeking to establish coverage for that judgment under a policy issued by defendant The Ordinary Mutual. Defendant’s ...
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Opinion Introduction In this case we must decide whether plaintiff Louisiana-Pacific Corporation’s (L/P) tort action against defendant Koppers Company, Inc. (Koppers) is preempted by the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). 1 We conclude the action is preempted and, hence, that the trial court correctly granted Koppers’s motion for summary judgment....
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513 U.S. 454 (1995) UNITED STATES et al. v. NATIONAL TREASURY EMPLOYEES UNION et al. No. 93-1170. United States Supreme Court. Argued November 8, 1994. Decided February 22, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT *456 *456 Stevens, J.,delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. O'Connor, J., f...
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47 F.3d 1536 148 L.R.R.M. (BNA) 2656, 63 USLW 2608,129 Lab.Cas. P 11,289 NATIONAL LABOR RELATIONS BOARD, Petitioner,v.OREGON STEEL MILLS, INC., Respondent.OREGON STEEL MILLS, INC., Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent. Nos. 92-70645, 92-70658. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 4, 1994.Decided Feb. 22, 1995. Way...
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In 1990, Joseph Meling took out several hundred thousand dollars in life insurance on his wife; in early 1991, he added accidental death benefits. All told, Meling stood to collect $700,000 if his wife happened to die in an accident. Meling was not just being prudent; he was planning for the future. Meling, however, wasn’t satisfied to leave such important matters to chance: The day after the c...
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48 F.3d 439 Ronald Ingle FORBES, Rhea Alfreda Forbes, Susan IngleForbes, Maria Ingle Forbes, Douglas Gordon Ingles Forbes,Robert Stephen Ingle Forbes, Catherine Ingle Forbes,Lawrence Richard Ingle Forbes, Elizabeth Ingle Forbes,Martin Stuart Ingle Forbes, Petitioners,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 93-70016. United States Court of Appeals,Ninth Circuit. Ar...
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*675 Opinion The then fifteen-year-old daughter of plaintiffs Nelson and Sharon Robbins left home for three days and stayed at a private nonprofit shelter for abused and troubled teenage girls, claiming that she did not want to go home because she was fighting with her parents and her father had physically abused her on three recent occasions. The suspected child abuse was report...
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Opinion A management employee claims he is entitled to payment for all the unused vacation time he accumulated over the 12 years he was employed by a company. He also claims he is entitled to compensatory pay for extensive “overtime” hours he alleges he worked for the firm. Alvaro Sequeira. appeals from the judgment of the trial court awarding him part of his claim for compensation in lieu of...
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Opinion William Thomas White appeals from the judgment (order committing him to the Department of Mental Health) entered following a jury trial at which it was found that he was a mentally disordered offender (MDO) (Pen. Code, § 2962). One of his contentions is that no evidence was presented that the person in charge of treatment evaluated appellant. [[/]] * We reject his contentions and affi...
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Opinion This case centers on the rights of a purchaser of a defective piano. Defendant and cross-complainant Dan Lofing (Lofing) purchased a Steinway grand piano from Sherman Clay & Co. (Sherman Clay), Steinway & Sons’ (Steinway) Sacramento dealer, and received financing through Sherman Clay’s finance company, Music Acceptance Corporation (MAC). 1 Lofing became disenchanted wit...
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*660 Opinion In this case we conclude that a defendant who has suffered a previous conviction for a serious or violent felony and who is convicted of two current felonies must be sentenced consecutively for the current felonies, and that the sentence for each determinate term must be doubled. Factual and Procedural Summary This case arises under the “Three Strikes” stat...
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48 F.3d 444 148 L.R.R.M. (BNA) 2649, 129 Lab.Cas. P 11,288 Frank IVALDI, et al., a California limited partnership d/b/aSunol Valley Golf Club and Recreation Co.,Petitioner-Cross-Respondent,v.NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner. Nos. 93-70608 and 93-70691. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 17, 1994.Decided Feb. 23, 1...
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In this adversary proceeding, the bankruptcy court ruled that Jereld J. and Shirley K. Michael could not claim a homestead exemption because they failed to record a declaration of homestead as required by Montana law before filing their bankruptcy petition. The district court affirmed, and the Michaels appeal. We vacate and remand. I When the Michaels filed their voluntary Chapter 7 bankruptcy pet...
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Opinion The competition privilege is an affirmative defense to the tort of interference with prospective economic advantage. We hold that to defeat the privilege plaintiff must prove defendants committed an unlawful or illegitimate act which is independently actionable. Facts 1 and Procedural History In December of 1985, plaintiff San Francisco Design Center Associate...
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Opinion The City and County of San Francisco (hereinafter the City) 1 appeals an order issuing a writ of mandate compelling the City to pay certain of its employees the difference between the salary they received in the fiscal year 1991-1992, and the salary they would have received pursuant to the *755 1991-1992 salary standardization ordinance, had it not been vet...
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Opinion Appellant Linda May Gaul-Alexander was convicted by a jury of conspiracy to commit nonviolent prison escape (Pen. Code, § 182, subd. (a)(1)), 1 aiding and abetting the attempted escape of a prisoner (§ 4534), bigamy (§ 281), and forgery (§ 470). She was placed on five years’ probation under various terms and conditions, including that she spend one year at a psychiatric...
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48 F.3d 1495 40 ERC 1225, 63 USLW 2536, 25 Envtl.L. Rep. 20,631 DOUGLAS COUNTY, a political subdivision of the State ofOregon, Plaintiff-Appellee.v.Bruce BABBITT, Secretary of the Interior, United StatesDepartment of the Interior, Defendant-Appellant.DOUGLAS COUNTY, a political subdivision of the State ofOregon, Plaintiff-Appellee,v.Bruce BABBITT, Defendant,andHEADWATERS, INC.; Umpqua Val...
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Herng Sing Wang appeals his conviction of conspiracy to bring aliens unlawfully into the United States in violation of 18 U.S.C. § 371 and 8 U.S.C. § 1324(a)(1)(A) and of his conviction of attempting to bring aliens into the United States in violation of 8 U.S.C. § 1324(a)(1)(A) and 18 U.S.C. § 2. We affirm his convictions. FACTS The government established by evidence the following facts: ...
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Opinion by Judge BEEZER; Dissent by Chief Judge WALLACE. Petitioner Theodore Weston filed a petition for a writ of habeas corpus challenging his May 1990 state court conviction of forcible oral copulation. He contends that his conviction was barred by the Double Jeopardy Clause because the state trial court ended his first trial by declaring a mistrial without his consent and in the absence of man...
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48 F.3d 456 63 USLW 2541, 47 Soc.Sec.Rep.Ser. 34,Unempl.Ins.Rep. (CCH) P 14536B Plas M. ALLEN, Plaintiff-Appellant,v.Donna E. SHALALA, Secretary of Health and Human Services,* Defendant-Appellee. No. 93-35124. United States Court of Appeals,Ninth Circuit. Submitted Sept. 16, 1994**.Decided Feb. 24, 1995. Ralph Wilborn, Eugene, OR, for plaintiff-appellant. Ernes...
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Opinion A prison inmate brought a pro se action against his former criminal defense attorney and others, alleging legal malpractice and other *790 causes of action. The former attorney cross-complained for attorney fees arising out of the prior representation. When the prisoner failed to appear at a status conference, the trial court denied his motion for appointed counsel, denied his request...
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*810 Opinion I. Factual and Procedural Summary A. Procedural. On December 22, 1992, appellant filed its first amended verified petition for writ of mandate. In its petition, appellant sought a peremptory writ of mandate compelling respondent Commission on State Mandates (the Commission) to vacate its determination that Penal Code section 1 987.9 ...
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Opinion I. Introduction Defendant, the University of Southern California, has moved to dismiss the appeal of plaintiff, Marvin Cobb. Plaintiff tried two separate claims to a jury. The first cause of action tried to the jury was for contract breach. The second cause of action tried to the jury was for race discrimination. On June 6, 1994, the jury returned a verdict in favor of plaintiff on his con...
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*961 Opinion We here review the denial of summary judgment in one of the breast implant cases currently under administration by the San Diego County Superior Court (see McGhan Medical Corp. v. Superior Court (1992) 11 Cal.App.4th 804 [14 Cal.Rptr.2d 264]). We find the case appropriate for writ relief because our intervention will terminate an action which ot...
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Opinion The surviving wife and children of decedent Lester Bryant appeal from an order dismissing their wrongful death action against defendant Brenda Glastetter after the trial court sustained Glastetter’s demurrer without leave to amend. Decedent was a tow truck driver who was struck and killed by a third party as he attempted to remove Glastetter’s car from the side of the freeway. We ...
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The major question for decision is whether restitution is available as an additional penal *507 ty under 18 U.S.C. § 3663(a)(1) when a defendant is sentenced to a period of incarceration for a misdemeanor offense. Graden James Miguel originally was sentenced to a period of probation, including restitution, following a conviction for assault by striking, beating or wounding, in violation of 18 U...
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This search and seizure case involves a helicopter view of greenhouses, a view through a fence, and execution of a subsequently obtained search warrant without having the papers along. I. Facts Van Damme lived in a house in rural Montana. He grew marijuana, over two thousand plants, in three large greenhouses. The greenhouses, shaped like Quonset huts and made of translucent plastic, ...
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50 F.3d 644 63 USLW 2540, Fed. Sec. L. Rep. P 98,618,31 Fed.R.Serv.3d 611 Lawrence EPSTEIN, et al., Plaintiffs,andWalter Minton, Plaintiff-Appellant,v.MCA, INC.; Matsushita Acquisition Corporation; MatsushitaElectric Industrial Co., Ltd.; Matsushita HoldingCorporation; Lew Wasserman; Sidney J.Sheinberg, Defendants-Appellees.Lawrence EPSTEIN; John Linder; Jane Rockford, as trusteeof...
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Opinion Defendant Betty Jo Stanfield appeals from her conviction of making terrorist threats. She threatened that if her former attorney did not join her in bringing her “Universe Reform Party” into power, she would hire gang members to kill him. Appellate decisions conflict as to whether a threat containing such conditional language supports a conviction under Penal Code section 422. (Compare ...
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Opinion Defendant Michael W. (appellant) has been a state hospital patient intermittently since 1981 when he was found not guilty of robbery by reason of insanity under Penal Code 1 section 1026. In 1991 appellant consented to have his commitment extended for two years under section 1026.5, subdivision (b). At the close of that term the state petitioned for an additional two-year extension. M...
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This court entered a judgment in this case reversing the trial court’s judgment. Citizens Bank & Trust Co. v. Saunders, Stuckey, & Mullis, Inc., 214 Ga. App. 333 (447 SE2d 632) (1994). In Saunders, *301Stuckey & Mullis, Inc. v. Citizens Bank & Trust Co., 265 Ga. 453 (458 SE2d 337), the Supreme Court reversed this court’s decision. Accordingly, the prior judgment of this court is vacated, the judgm...
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Opinion Appellant Jeffrey Scott Eddy was originally sentenced to three years in state prison for possessing a controlled substance for sale (Health & Saf. Code, § 11378) and to a one-year consecutive term for vehicle theft (Veh. Code, § 10851). The crimes were committed in 1992 and 1991, respectively. The court subsequently suspended criminal proceedings and committed appellant to the California ...
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Opinion Defendant entered negotiated pleas of no contest to second degree murder, assault with a firearm, and shooting at an occupied motor vehicle. Defendant admitted allegations that he personally used a firearm in each offense. *1187 On the date set for pronouncement of judgment and sentence, defendant moved to withdraw his plea on the ground “his free will was overcome” by “pressure fro...
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Opinion After National American Insurance Company (National), the surety of a bail bond, obtained an order vacating the forfeiture of bail *1179 and exonerating the bond conditioned on the payment of the costs of returning the defendant to custody, National failed to pay the costs. The municipal court entered judgment against National for the full amount of the bond, and National appealed to ...
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Opinion An amended information charged defendant, a former high school music teacher, with 22 counts of improper sexual conduct involving 3 *1125 of his female students. The jury acquitted defendant of all of the charges except for two counts of misdemeanor child annoyance involving one of the three students, K.V. (Pen. Code, § 647.6; formerly Pen. Code, § 647a.) The tri...
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Opinion Background On April 8, 1991, Bruce De May caused a vehicle accident in which his passenger, Jeannette Davenport, suffered serious permanent injuries. De May and Davenport are co-owners of the automobile and co-insureds under a policy issued by Interinsurance Exchange of the Automobile Club of Southern California (Auto Club). They are not spouses or otherwise related to ea...
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*1083 Opinion Herbert Gray was dismissed from his position as a captain with the Tulare County Sheriff’s Department (Department) for, among other reasons, making statements in a local newspaper critical of the sheriff, Melvin Coley. Gray appealed his dismissal to the Tulare County Board of Supervisors (Board). A four-day evidentiary hearing followed before an administrative law judge who reco...
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Opinion Reynaldo Peneda appeals his conviction for conspiracy to transport cocaine and the transportation and possession of that cocaine for sale. The jury found the total amount of cocaine exceeded 100 pounds in weight which enhanced Peneda’s sentence by 15 years. He was then sentenced to a total of 21 years in prison. 1 Peneda contends his motion to suppress evidence was er...
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Opinion In this appeal we determine the trial court erred in dismissing the proceedings against Jesus for discovery abuses without considering the interests of justice and Jesus’ welfare. Accordingly, we reverse. *1059 I On October 5, 1993, a Welfare and Institutions Code 1 section 602 petition was filed charging Jesus with robbery. The next day, Jesus was ordered detained pending a jur...
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514 U.S. 35 (1995) SWINT et al. v. CHAMBERS COUNTY COMMISSION et al. No. 93-1636. United States Supreme Court. Argued January 10, 1995. Decided March 1, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT *36 Ginsburg, J., delivered the opinion for a unanimous Court. *37 Robert B. McDuff argued the cause for petitioners. With him on the briefs were Carlos A. Williams, ...
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Opinion Michael Dewane Brandon was convicted by a jury of kidnapping for robbery (Pen. Code, 1 § 209, subd. (b)) and robbery (§211). In connection with each offense, the jury also found true the allegation Brandon had personally used a knife. (§ 12022, subd. (b).) In separate proceedings, the court found true allegations Brandon had suffered a prior prison term 2 and...
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Opinion by Judge Harry PREGERSON; Dissent by Judge BRUNETTI. Before: BROWNING, PREGERSON, and BRUNETTI, Circuit Judges. KFC Western, Inc. (“KFC”) appeals the district court’s dismissal of its action under the Resource Conservation and Recovery Act (“RCRA”) to recover environmental clean-up costs from the prior owners of contaminated property sold to KFC. The district court dismissed KFC’s action ...
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49 F.3d 528 63 USLW 2607 UNITED STATES of America, Plaintiff-Appellee,v.Clarke Dexter WEEMS, Defendant-Appellant. No. 93-30151. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1, 1994.Submission Vacated Feb. 8, 1994.Resubmitted March 15, 1994.Decided March 1, 1995. C. James Frush, Helsell, Fetterman, Martin, Todd & Hokanson, Seattle, WA, f...
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OVERVIEW General Dynamics Corp. (“General Dynamics”) petitions for review from the decision of the Administrative Law Judge (“ALJ”), Executive Office for Immigration Review, denying General Dynamics’s request for attorney’s fees. General Dynamics successfully defended against an action brought by the United States alleging that General Dynamics engaged in a pattern or practice of citizensh...
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Opinion In this appeal, minor Ricardo A. challenges the juvenile court’s finding that he is in criminal contempt of court in violation of Penal Code section 166, former subdivision 4, because he violated the terms and conditions of his probation by possessing a knife and gang paraphernalia. His sole contention on appeal is that the true finding under Penal Code section 166, the gener...
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We must decide whether a corporation’s transfer of stock to a trust in partial satisfaction of the corporation’s obligation to fund the trust constitutes a “purchase” and a “sale” under the securities laws. I First Executive Corporation Trust (“Trust”) seeks to participate in the enormous class action settlement stemming from the American Continental Corporation (“ACC”)/Lincoln Savings and Loan Se...
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*1218 Opinion I. Appellants Veneta Greene, Randall Williams and Zephyr Tate-Mann bring this appeal following a ruling of the trial court which sustained demurrers without leave to amend. 1 The demurrers, which challenged the second amended complaint (complaint), were brought by respondents Associated Pomona Teachers (APT) and Tom Hollister, and Pomona Unified Scho...
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Chapter 11 debtors Jimmie Lee and Ferol Johnston appeal the decision of the Bankruptcy Appellate Panel affirming the bankruptcy court’s order authorizing the Chapter 11 Trustee to abandon a large residential property known as El Granada. The John-stons argue that abandonment was improper because El Granada was subject to imminent foreclosure and because the intent of the abandonment was to shif...
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The Immigration and Naturalization Service (“INS”) is seeking to deport Mohammed Baher Elramly because in 1982 he was convicted of selling $100.00 worth of hashish. Elramly sought discretionary relief based on section 212(c) of the Immigration Act, 8 U.S.C. § 1182(e). Because the Board of Immigration Appeals (“BIA”) failed to examine the particular nature of Elramly’s drug offense and categoric...
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9 Cal.4th 580 (1995) 889 P.2d 541 38 Cal. Rptr.2d 347 THE PEOPLE, Plaintiff and Respondent, v. ROMERO WILEY, Defendant and Appellant. Docket No. S034307. Supreme Court of California. March 2, 1995. *583 COUNSEL Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bas...
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48 F.3d 1536 41 Fed. R. Evid. Serv. 996 UNITED STATES of America, Plaintiff-Appellee,v.Jose A. ALONSO, Defendant-Appellant. No. 94-10082. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 12, 1994.Decided March 2, 1995. Howard Sohn, Miami, FL, for defendant-appellant. Daniel R. Schiess, Asst. U.S. Atty., Las Vegas, NV, for plaintiff-appell...
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9 Cal.4th 606 (1995) 889 P.2d 1279 38 Cal. Rptr.2d 150 INTERNATIONAL ENGINE PARTS, INC., et al., Plaintiffs and Appellants, v. FEDDERSEN AND COMPANY, Defendant and Respondent. Docket No. S037753. Supreme Court of California. March 2, 1995. *608 COUNSEL Thomas Kallay for Plaintiffs and Appellants. Garrett & Tully, Stephen J. Tully and Kevin S. Lacey for Defendant and Respondent. Pettit & M...
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48 F.3d 1508 63 USLW 2581 UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant,andRobert Rozelle; Aaron Hampton; Freddie Mack; SheltonAuntwan Martin, Defendants-Appellees.UNITED STATES of America, Plaintiff-Appellant,v.Christopher Lee ARMSTRONG, aka: Chris Armstrong, Defendant-Appellee. Nos. 93-50031, 93-50057. United State...
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*1578 Opinion Robyn R. Devereaux (appellant) appeals the dismissal of her action against Latham & Watkins et al. (collectively, respondent or the firm) for her failure to post security as required by Code of Civil Procedure section 391.3. 1 The instant appeal is only the latest installment in an acrimonious dispute between the law firm of Latham & Watkins and appella...
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Opinion Appellant Ira Phillip Murray contends the trial court failed to sentence him in accordance with a plea bargain, and that he should be permitted to withdraw from the plea bargain or be sentenced in accordance with it. In the alternative, he contends the charges should be dismissed altogether because he was denied a speedy trial and was subjected impermissibly to multiple prosecutio...
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Opinion In this product liability case, the court granted a nonsuit after plaintiff’s opening statement, even though it was conceded that plaintiff had stated a prima facie case under the “risk-benefit” theory of Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413 [143 Cal.Rptr. 225, 573 P.2d 443, 96 A.L.R.3d 1] (Barker). The court did so in order to enabl...
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Opinion The Director of Corrections appeals a superior court judgment and order on habeas corpus vacating an earlier superior court judgment against David Joseph Carpenter, including a sentence of death. We reverse. I. The Background A. The Santa Cruz “Trailside Murder” Case In the Santa Cruz Superior Court, the People charged Carpenter with the following offenses c...
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9 Cal.4th 738 (1995) 889 P.2d 970 38 Cal. Rptr.2d 650 LISA GRANBERRY et al., Plaintiffs and Appellants, v. ISLAY INVESTMENTS et al., Defendants and Appellants. Docket No. S035591. Supreme Court of California. March 6, 1995. *741 COUNSEL Hill, Schwartz & Stenson, David H. Schwartz, Michael P. Guta and Ernest L. Graves for Plaintiffs and Appellants. Daniel E. Lungren, Attorney General, Roderick...
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Opinion Appellants are (a) injured employees and (b) survivors of other employees killed in an employment-related van accident. They are assignees of the employer’s interest under a liability provision contained in an insurance policy issued by respondent, State Compensation Insurance Fund. As such, appellants sued respondent insurer for declaratory relief and damages arising from respond...
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9 Cal.4th 763 (1995) 889 P.2d 1019 38 Cal. Rptr.2d 699 RICHARD M. DeVITA et al., Plaintiffs and Appellants, v. COUNTY OF NAPA et al., Defendants and Respondents. Docket No. S037642. Supreme Court of California. March 6, 1995. *770 COUNSEL Gagen, McCoy, McMahon & Armstrong, Mark L. Armstrong, Patricia E. Curtin and Charles A. Klinge for Plaintiffs and Appellants. Michael H. Krausnick, County C...
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Opinion I. Introduction Defendant, Michael Sims Dixon, appeals his conviction for second degree murder plus a finding he personally used a firearm. (Pen. Code, 1 §§ 187, 12022.5.) He raises various contentions on appeal, but in the published portion of this opinion, we address the issue of whether the trial judge had a sua sponte duty to instruct the jury on the lesser included offenses of ...
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OPINION Housing Pioneers, Inc. (Pioneers) appeals the decision of the Tax Court denying it section 501(c)(3) status. We affirm the judgment of the Tax Court. FACTS Pioneers was incorporated March 21, 1989 as a “nonprofit public benefit corporation” *1396 under California law. Its articles of incorporation announced its “specific purpose” to be “to provide innovative and affordable housi...
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Carlos Gregorio Martinez appeals his convictions for armed carjacking, 18 U.S.C. § 2119, using or carrying a firearm during commission of a crime of violence, 18 U.S.C. § 924(c)(1), and being an armed career criminal, 18 U.S.C. § 924(e). On appeal, Martinez argues that: (1) the Anti-Car Theft Act, 18 U.S.C. § 2119, was enacted in violation of the commerce clause; (2) section 2119 is void for va...
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Loral Terracom (“Loral”) appeals the district court’s order granting Citizens Bank and Trust Company’s (“Citizens”) and Valley National Bank’s (“Valley”) joint Fed.R.Civ.P. 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Loral alleges that Citizens and Valley (“the Banks”) negligently failed or unreasonably performed investigations of the financial stre...
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AMENDED OPINION The debtor’s plan proposed a “dirt for debt” transfer to two lienholders encumbering the primary asset of the estate. The first position lienholder objected to the plan on the grounds that: (1) the plan erroneously estimated the value of the land to be exchanged; (2) the plan was not proposed in “good faith;” (3) the plan violated the “best interests of creditors” test...
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Opinion In People v. Stansbury (1993) 4 Cal.4th 1017 [17 Cal.Rptr.2d 174, 846 P.2d 756], we affirmed the judgment of death entered against defendant Stansbury for the kidnapping, rape, and murder of a 10-year-old child. The United States Supreme Court granted certiorari limited to defendant’s claim of error under Miranda v. Arizona (1966) 384 U.S. 4...
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*1697 Opinion I. Introduction Appellant brought a civil action against respondent, his former employer, in which he based various causes of action on the allegation that respondent harassed and terminated him on the basis of his sexual orientation. In response to numerous pretrial motions, the trial court dismissed all of appellant’s causes of action. On appeal, appellant se...
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Opinion Intercommunity Medical Center (IMC) appeals from the denial of its petition for writ of mandate under section 1094.5 of the Code of Civil Procedure, in which it sought review of an administrative decision of the State Department of Health Services (the Department) disallowing IMC’s cost reporting of its psychiatric unit as a separate cost entity. The Department based its decision ...
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Salvador Castrejon-Garcia (Castrejon) petitions for review of the decision of the Board of Immigration Appeals (the Board) denying him suspension of deportability and ordering his deportation. We grant his petition. FACTS Castrejon was born May 23, 1953, in Coal-coman, Michoaean, Mexico. He entered the United States without inspection in 1970 and has lived in the United States since t...
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This is an action brought under the Privacy Act of 1974, 5 U.S.C. § 552a. The district court granted the motion of defendant Department of Health and Human Services (“HHS”) for summary judgment, from which plaintiff Wilborn has appealed. 1 The appeal is timely and we have jurisdiction under 28 U.S.C. § 1291. I. THE UNCONTROVERTED FACTS Appellant Wilborn was employed as a st...
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Opinion Joseph G. appeals the juvenile court’s order declaring him a delinquent minor following true findings he carried a loaded firearm at *1738 school, carried a loaded firearm in a public place and carried a concealed weapon (Pen. Code, §§ 626.9, 1 subd. (a), 12031, subd. (a)(1), 12025, subd. (a)(2)). On the afternoon of Wednesday, October 20, 1993, the vi...
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I. Javier Ortiz-Villegas appeals a district court judgment in which he was convicted for being a deported alien found in the United States without the permission of the Attorney General, a violation of 8 U.S.C. § 1326. We affirm the district court’s judgment. ii. On October 18, 1990, Ortiz-Villegas was deported from the United States to Mexico. On the same day, he reentered the U...
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I. The Equal Employment Opportunity Commission (“EEOC”) appeals the district court’s grant of summary judgment to defendant Insurance Company of ’ North America (ICNA) in this enforcement action brought on behalf of Richard Pugh under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq. (1994). We reject the EEOC’s argument that ICNA’s refusal to interview or hire Pugh on ...
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49 F.3d 1421 40 Cont.Cas.Fed. (CCH) P 76,761 UNITED STATES of America, for the Use of C.W. HENDERSON, andWanda Henderson, husband and wife, doing businessas C.W. Henderson Construction Co., asole proprietorship,Plaintiffs-Appellants,v.NUCON CONSTRUCTION CORPORATION; A.J. Jones ConstructionCo., and a limited partnership Aetna Casualty andSurety Co.; Entities 5-100, Defendants-Appellees. ...
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Opinion by Judge TROTT. Dissent by Judge TASHIMA. John Vaneaton1 was arrested on September 9, 1992, while standing just inside the open door of his motel room in Bend, Oregon. He was arrested without a warrant by officers of the Bend Police Department. He concedes that the police who arrested him for receiving stolen property had probable cause to do so, but he contends that the warrant-less arres...
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The Oregon State. Bar (the “State Bar”), as intervenor, appeals the district court’s denial of its motion to compel production of documents and a deposition, and the district court’s grant of defendant-appellee Roger Tragesser’s (“Tragesser”) motions to enforce a settlement agreement and quash service of subpoena, and to seal the court’s file. BACKGROUND Angela Hagestad (“Hagestad”) commenced...
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Opinion I. Factual Background In the early morning hours of August 9, 1992, Jorge Verdin Mendez (Verdin) was driving east on Ralston Street in the City of Ontario. In the car with him were Manuel Rios, Marcos Rios, and Jesus Rios. 1 As Verdin slowed down for a stop sign at the intersection of Ralston and Euclid Avenue, defendant Francisco Garcia (defendant) walked fro...
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Landowners and water users within “Area I” of the Westlands Water District appeal the district court’s denial of their motion to enforce a stipulated judgment which required the United States to perform a 1963 long-term water service contract with the West-lands Water District. The district court held that the contract does not obligate the government to furnish to Westlands the full contractua...
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Opinion Michael A. Venegas appeals his convictions of two counts of felony violation of Penal Code section 12280, subdivision (b) 1 (possession of assault weapons). He contends that his convictions must be reversed because the court erred in excluding evidence that he registered weapons with the Department of Justice in March of 1993. Appellant argues this evidence would have supported an aff...
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33 Cal.App.4th 8 (1995) 39 Cal. Rptr.2d 233 KAICHEN'S METAL MART, INC., Plaintiff and Appellant, v. FERRO CAST COMPANY, Defendant and Respondent; ROHR INDUSTRIES, INC., Third Party Claimant and Respondent. Docket No. B083226. Court of Appeals of California, Second District, Division Six. March 14, 1995. *10 COUNSEL Brown, Altshuler & Spiro and Bruce J. Altshuler for Plaintiff and Appellant. *11 E...
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Opinion In this opinion we decide the constitutionality of Penal Code section 1026.5, subdivision (b), 2 which sets out the procedures for extending the commitment to the state Department of Mental Health of a person found not guilty of a felony by reason of insanity. Appellant Gary Lee Wilder (Wilder) contends he was denied due process at a trial under section 1026.5, sub...
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Opinion Defendant Hank Sexton appeals from a judgment of conviction after his guilty plea. He challenges the conditions of his grant of probation requiring restitution. We conclude that the court could properly order a restitution fine equaling the statutory minimum despite its finding that defendant lacked the ability to pay and, in the published portion of the opinion, that the court co...
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Opinion Defendant appeals from the judgment following his conviction of selling a controlled substance, cocaine. We affirm. Facts and Proceedings Below While on bicycle patrol on a clear, sunny morning in October 1993, Officers Flynn and Gale observed what they believed to be a narcotics sale in a residential driveway. Flynn saw defendant and another man, Smith, standing in the driveway. Sm...
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Opinion Introduction Petitioner Lea Purwin D’Agostino (petitioner) seeks a writ of mandate which would command real party in interest, the Los Angeles City Clerk, Elias Martinez (City Clerk), to place D’Agostino’s name on the ballot for the special election of a member of the city council for the fifth council district, which is set for April 11, 1995, on the ground that she has substantially...
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Opinion A jury convicted appellant of possession for sale of cocaine base (Health & Saf. Code, § 11378; count I), possession for sale of methamphetamine (Health & Saf. Code, § 11378; count II), and possession of a destructive device (Pen. Code, § 12303, a lesser included offense of Pen. Code § 12303.2; count III). Appellant then admitted two state prison felony allegations (Pen. Code, § 6...
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Opinion A woman has intercourse with several different men and conceives a child. Years later, she identifies one man as the father and blood tests show this man closely matches the genetic characteristics expected of the child’s father. By statute, these test results trigger a presumption of paternity. (Fam. Code, § 7555; former Evid. Code, § 895.5.) The other men are not tested. We conc...
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Opinion Defendant appeals from the judgment following his conviction of one count of first degree murder with robbery as a special circumstance and two counts of attempted robbery. Defendant argues his convictions should be reversed because, as to each victim, he committed at most the crime of attempted extortion, not attempted robbery, and he was the victim of misconduct by the prosecuto...
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Opinion In this case we hold that an “open pole bam” without walls is not a building within the scope of California’s burglary statute. Amber S. and an accomplice were caught in the act of stealing some 30 bales of hay from a structure described by the owner as an “open pole bam.” The structure was open on all sides, consisting of a roof and overhang held up by poles. Amber was charged with b...
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Opinion Bennie and Lupe R. (appellants) appeal from an order terminating their legal guardianship over Alicia O. pursuant to Welfare and Institutions Code section 366.4.1 Alicia, bom on March 15, 1976, is mentally retarded and suffers from kyphoscoliosis (curvature of the spine) and cardiac defects. She is unable to speak except through a kind of sign language and has the mental age of a two-year...
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Opinion Appellant Stanislaus Audubon Society, Inc., appeals from the judgment denying its complaint and petition for writ of mandate which *147 challenged approval by respondent County of Stanislaus (County) of a proposed project by real party in interest Willms Ranch (Willms) to construct a golf course and attendant facilities. Appellant argues the County’s certification of a negative declar...
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Opinion Respondent Kenneth Derrell Williams (hereafter Kenneth or respondent) and his brother Frederick Williams (hereafter Fredrick) were separately charged in Placer County Superior Court with the burglary, rape, robbery, kidnapping and murder, with special circumstances, of Heather Meade (hereafter Heather) in June of 1980. Attorneys Douglas Greer and Ronald Castro were appointed to represent ...
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We must reconcile an apparent conflict between a mandatory minimum sentence statute and the United States Sentencing Guidelines provisions for concurrent sentencing. I In a state proceeding, Anthony Drake was sentenced to sixty-six months in an Oregon prison for his participation in an armed robbery in which a .380 SPP semi-automatic handgun was used. Shortly after Drake began serving his s...
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Opinion This is the third appeal in which we have dealt with legal issues arising from the anomalous status of a bayfront parcel owned by *215 appellants Littoral Development Co. and Diversified Realty Services (hereafter jointly referred to as Littoral). Here, Littoral contends: (1) The bayward one-third of its parcel was not subject to the jurisdiction of the San Francisco ...
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We consider in this appeal whether an illegal alien who travels temporarily outside the United States with permission from the Immigration and Naturalization Service (INS) loses his right to a deportation hearing upon the subsequent denial of his application for registry filed pursuant to 8 U.S.C. § 1259. We agree with the district court that under the circumstances of this case the alien was e...
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C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Shalala v. Guernsey Memorial Hospital, ante, p. 87....
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50 F.3d 710 63 USLW 2594, 1995-1 Trade Cases P 70,934 DEDICATION AND EVERLASTING LOVE TO ANIMALS, a CaliforniaNon-Profit Corporation, aka D.E.L.T.A. Rescue,Plaintiff-Appellant,v.The HUMANE SOCIETY OF the UNITED STATES, INC., Defendant-Appellee. No. 93-56247. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 10, 1995.Decided March 20, 1995. Will...
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We must decide whether 18 U.S.C. § 922(j), which makes it unlawful for a person to receive “any stolen firearm” “which has been shipped or transported” in interstate commerce knowing that the firearm “was stolen,” applies to any firearm that has travelled in interstate commerce and is thereafter stolen, or only to a firearm which has travelled in interstate commerce as a stolen firearm. Joseph ...
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50 F.3d 705 63 USLW 2595 BULLION SERVICES, INC., Plaintiff-Appellee,v.VALLEY STATE BANK; Federal Deposit Insurance Corporation,as Receiver for Valley State Bank, Defendants-Appellants. No. 93-55912. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 6, 1995.Decided March 20, 1995. S. Alyssa Roberts, F.D.I.C., Washington, DC, for defendants-appel...
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Micky Joe Vaandering appeals his jury conviction and sentence under the Sentencing Guidelines for conspiracy to possess methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846, and possession of methamphetamine with intent to distribute in violation of 21 U.S.C. § 841. Jeffrey Wayne McMillan appeals his jury conviction and sentence under the Sentencing Guideline...
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9 Cal.4th 836 (1995) 890 P.2d 43 39 Cal. Rptr.2d 21 FRANCISCO SALAZAR et al., Plaintiffs and Appellants, v. DELAINE EASTIN, as Superintendent, etc., et al., Defendants and Respondents. Docket No. S032696. Supreme Court of California. March 20, 1995. *839 COUNSEL Robert K. Miller, M. Carmen Ramirez, Grant R. Specht, Barbara Macri-Ortiz, Andrew T. Koenig and Peter Roos for Plaintiffs and Appellants...
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514 U.S. 122 (1995) DIRECTOR, OFFICE OF WORKERS' COMPENSATION PROGRAMS, DEPARTMENT OF LABOR v. NEWPORT NEWS SHIPBUILDING & DRY DOCK CO. et al. No. 93-1783. United States Supreme Court. Argued January 9, 1995. Decided March 21, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT *123 Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Steven...
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The question presented on appeal is whether a district court may order forfeiture of a bail bond after finding that defendant violated a “break no laws” condition of release. Defendant and bail bond company contend that a bond cannot be forfeited except for a defendant’s failure to appear. The bond company failed to file a timely notice of appeal, and accordingly, its appeal is dismissed. We co...
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We must resolve procedural issues arising out of the arrest of protest demonstrators on the steps of the federal courthouse in San Francisco by Federal Protective Service police for violation of federal property management regulations. I On January 15,1993, Talbot and Grossman participated in a protest demonstration at the Philip Burton Federal Building and Courthouse on Golden Gate A...
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We consider here the fairness and reasonableness of a settlement in an environmental action brought under CERCLA.1 Appellants challenge the settlement (involving other parties) because, they claim, the district court did not have sufficient information before it to properly determine whether the decree— which provided for a $45.7 million settlement with the Los Angeles County Sanitation District a...
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50 F.3d 730 31 Fed.R.Serv.3d 823 MARK INDUSTRIES, LIMITED, a Washington corporation, Plaintiff-Appellee,v.SEA CAPTAIN'S CHOICE, INC., an Alaska corporation, et al., Defendants,Gregory L. Bertram, Esq., and Gregory L. Bertram &Associates, Appellant. Nos. 93-35028, 93-35173. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 9, 1994.Decided March 21, 1995...
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Opinion by Judge SCHROEDER; Dissent by Judge HUG. ORDER The proposed Brief of Amici Curiae in Support of Defendantr-Appellees’ Petition for Rehearing and Suggestion for Rehearing En Bane is ordered filed. A majority of the panel as constituted above has voted to deny the petition for rehearing. A majority of the panel has not •voted to grant the suggestion for rehearing en banc. The full court has...
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California businessmen Brady and Card-well invested in Mexican coastal land and the construction of a hotel with the help of Brown, an American citizen and Mexican resident licensed to practice law in Mexico. Because Mexican law does not allow direct foreign ownership of coastal property, Brown arranged for Mexican citizens to buy the property with funds contributed by Brady and Cardwell. Through ...
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50 F.3d 739 SALT RIVER PIMA-MARICOPA INDIAN COMMUNITY, Plaintiff-Appellant,v.YAVAPAI COUNTY, a political subdivision of the State ofArizona; Clair D. Barnett, Assessor of Yavapai County;Richard A. Jacobs, Treasurer of Yavapai County; the membersof the Board of Supervisors, Carlton Camp, Bill Feldmeier,and Gheral Brownlow; Paul Waddell, Director of the ArizonaDepartment of Revenue; and the ...
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Royal Insurance Company insured a yacht shipped by Vantare International, Inc., from Taiwan to Oakland, California. The yacht was shipped on a vessel owned by Sea-Land Service, Inc. The stevedore unloading the yacht, Container Stevedoring Company, dropped it on the dock in Oakland. The yacht was a total loss. The district court found that Vantare’s recovery was limited to $500 under a loss limi...
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50 F.3d 719 63 USLW 2602, 19 Employee Benefits Cas. 1001,Pens. Plan Guide P 23906X HOTEL EMPLOYEES & RESTAURANT EMPLOYEES INTERNATIONAL UNIONWELFARE FUND, a multiemployer employee benefitfund; Edward T. Hanley; Patrick J.Kane, as Trustees, Plaintiffs-Appellants,v.Virgil GENTNER; Virgil R. Gentner, Chartered, aProfessional Corporation, Defendants-Appellees. No. 93-15684. Unit...
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ORDER The memorandum disposition filed January 4, 1995, is redesignated as an authored opinion by Judge Farris. OPINION The question presented is whether Arizona’s Uniform Fraudulent Transfer Act prevented Marguerite Maiello from acquiring an interest in the defendant property and from asserting the “innocent owner” defense under 21 U.S.C. § 881(a)(6) and 18 U.S.C. § 981(a)(1)(A) to a forfe...
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Javier Hincapié Sanchez appeals the district court’s denial of his motion under 28 U.S.C. § 2255 to vacate his guilty plea and sentence in his criminal conviction for conspiracy to distribute cocaine, 21 U.S.C. § 846, and possession with intent to distribute cocaine, 21 U.S.C. § 841(a)(1). Hincapié Sanchez argues that (1) the government’s actions in this case constituted outrageous government c...
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Plaintiff Salt River Pima-Maricopa Indian Community (“Community”) appeals from a summary judgment for the defendants, the State of Arizona and the Director of the *735 Arizona Department of Revenue, Paul Wad-dell (“Arizona” or “State”). The Community argues that the district court erred by holding that the State may collect taxes on sales and rental transactions on the Indian reser...
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OPINION Chapter 7 debtors, Alan P. Johnson and R.N. Johnson (the “Debtors”), filed a motion seeking an order to the effect that certain payments due post-petition under an anti-competition covenant are not property of the bankruptcy estate. The bankruptcy court held the payments were property of the estate. The Debtors appeal. Factual Background Alan P. Johnson (“Johnson”), ...
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Opinion Defendant, David William Taylor, appeals from a judgment of conviction entered on jury verdicts finding him guilty of three counts of rape (Pen. Code, 1 § 261, subd. (a)(2)), one count of oral copulation (§ 288a, subd. (c)), two counts of attempted oral copulation (§§ 288a, subd. (c), 664), two counts of kidnapping and one count of kidnapping of a victim under the age of fourteen (§§ ...
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*273 Opinion While a judgment creditor is in the process of enforcing its judgment, the probate court orders a conservator for the judgment debtor’s estate. Here we hold that Code of Civil Procedure section 709.030 requires the judgment creditor to apply for payment to the probate court. 1 We affirm the order of the trial court denying the judgment creditor’s motion to require the sheriff t...
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Opinion The California Department of Education (CDE) is required by state and federal disability statutes to make reasonable accommodation for the known physical or mental limitations of its employees who have a disability. This appeal concerns whether real party in interest, CDE, unlawfully discriminated against plaintiff, its employee, by terminating him for *425 misconduct...
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Opinion James Graham (plaintiff) appeals from a judgment denying his petition for a writ of mandamus (Code Civ. Proc., § 1094.5) to set aside a decision of respondent State Board of Control (Board) which denied his application for restitution as the victim of a violent crime (Gov. Code, §§ 13959-13969.3 (hereafter the Statute); all references to sections of an undesignated code are to the...
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Opinion Plaintiff Mary E. Bertrand (wife) appeals from an order of the trial court declaring that Social Security benefits paid to the parties’ child by reason of the death of defendant James Gordon Bertrand (husband) satisfy husband’s ongoing child support obligation. Wife contends credit for such payments made on account of death is not authorized by Family Code section 4504, which expressly ...
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Opinion Hermogenes DeGuzman (DeGuzman) appeals a trial court ruling revoking his status as an outpatient and returning him to Patton State Hospital (Patton). He contends the court erred in using a lesser standard of proof than “beyond a reasonable doubt,” and in considering concerns of public safety in determining that his outpatient status should be revoked. Factual and Procedural Background...
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Opinion In February 1988, Richard Wade Farley killed numerous employees of ESL during a murderous rampage in ESL offices in a building *248 owned by ESL. Plaintiffs are the heirs of some of the ESL employees killed by Farley. Plaintiffs brought a wrongful death action against defendant TRW, Inc., and its wholly owned subsidiary ESL for negligence and premises liability. Summary judgment was e...
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Opinion This case presents the issue of whether Evidence Code 1 section 662, the common law presumption in favor of title, and its concomitant requirement of clear and convincing evidence to rebut the presumption, properly apply in family law proceedings when there is a conflict with the presumption that a husband and wife occupy a confidential relationship in their transaction...
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DECISION AFTER COURT TRIAL, FIXING DAMAGES FOR PERSONAL INJURIES, INCLUDING SEXUAL DYSFUNCTION AND LOSS OF CONSORTIUM This matter came on regularly for Court Trial on January 17, 1995, and continued daily until January 20, 1995, before the Honorable A. Andrew Hauk, United States District Judge. Upon conclusion of this non-jury trial the case was taken under submission for decision. The Court has ...
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Charles and Betty Alcock appeal an order of the Bankruptcy Appellate Panel (“BAP”) in a Chapter 11 proceeding allowing the Small Business Administration’s (“SBA”) claim for the deficiency on a loan upon which Charles Alcock signed as a guarantor. The bankruptcy judge rejected Alcock’s arguments that he should be discharged from his guaranty obligation because the SBA and its participating lende...
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Opinion May a party select issues (other than duty and punitive damages) implicated in one or more causes of action in its complaint or cross-complaint, amend that pleading to add a cause of action for declaratory relief as to those issues, and then obtain a summary adjudication of the declaratory relief cause of action? We answer that it cannot, for, if it could, the result would fully s...
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Opinion I. Introduction Petitioners, Mindy B. and David L., parents of the minors, Brittany L. and Shaundra L., have, pursuant to rule 39.IB of the California Rules of Court,1 filed separate petitions for writs of mandate seeking to compel the respondent court to set aside its order setting the underlying dependency proceedings for a hearing pursuant to Welfare and Institutions Code section2 366....
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The principal question raised in this appeal is whether Appellant’s action alleging willful violation of the automatic stay was rendered moot by dismissal of the underlying bankruptcy case. We conclude that the action was not rendered moot and reverse the bankruptcy court’s order dismissing the action. FACTS On June 24, 1992, Betty Jean Davis (Appellant) filed an action in Fresno County Superior C...
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OPINION I FACTS The debtor, Ramon F. Beltran (“Beltran”), filed for bankruptcy under Chapter 13 of the Bankruptcy Code (“Code”) 1 on February 4, *906 1992. The deadline for filing proofs of claim was June 18, 1992. The Chapter 13 plan was confirmed on November 3, 1992. Calmat Co. of Arizona (“CalMat”) filed its proof of claim for $61,754.53 on December 9, 1992. The Chapter 13 trustee,...
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50 F.3d 770 148 L.R.R.M. (BNA) 2841, 129 Lab.Cas. P 11,299,10 IER Cases 801 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,WAREHOUSEMEN & HELPERS, GENERAL TRUCK DRIVERS,OFFICE, FOOD & WAREHOUSE LOCAL 952,Plaintiff-Appellant,v.AMERICAN DELIVERY SERVICE CO., INC.; Montgomery Ward & Co.,Inc., Defendants-Appellees. No. 93-55978. United States Court of Appeals,Ninth Ci...
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Thomas M. O’Brien, Edward B. Gallup, and Patrick W. Lyon appeal the district court’s imposition of a two-level enhancement of their sentences based on victim vulnerability under United States Sentencing Guidelines (“U.S.S.G.”) § 3A1.1. A jury had convicted appellants on charges of conspiracy, mail fraud, wire fraud, interstate transmission of money obtained by fraud, and money laundering in conne...
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50 F.3d 1464 63 USLW 2601, 129 Lab.Cas. P 11,296,10 IER Cases 612 INTERNATIONAL ALLIANCE OF THEATRICAL AND STAGE EMPLOYEES ANDMOVING PICTURE MACHINE OPERATORS, AFL-CIO,Plaintiff-Appellant,v.COMPACT VIDEO SERVICES, INC.; Compact Video Group, Inc.;Meridian Studios; Image Transform, Inc.; andJohn Donlon, Defendants-Appellees. No. 93-56664. United States Court of Appeals,Ninth Circ...
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The appellants are former employees of BankAmerica Corporation (“former employees”). They appeal from the order granting BankAmerica Corporation’s (“BankAmerica”) motion for summary judgment. The former employees were originally employed by Security Pacific Bank of Washington (“Security Pacific”). On April 22, 1992, they became BankAmerica employees when BankAmerica merged with Security Pacific. B...
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Opinion Rosalinda E. and Thomas H., the parents of the minor, David H., appeal under Welfare and Institutions Code section 3951 from the order of the juvenile court, entered on November 16, 1993, which denied their motion to vacate a prior order terminating their parental rights under section 366.26.2 We affirm the court’s order. The court correctly found it had no jurisdiction to vacate its form...
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Opinion A jury convicted Fernando Salazar of two crimes against Maria G.: (1) kidnapping for sexual purposes (Pen. Code, 2 § 208, subd. (d)) and (2) assault with intent to commit rape (§ 220). With respect to the assault count, the jury found true an allegation that Salazar kidnapped Maria for the purpose of committing the sexual offense. (§ 667.8, subd. (a).) The jury also convicted Salaza...
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Opinion This is an appeal by numerous school districts (the Districts) from a judgment denying them reimbursement, pursuant to California Constitution, article XIII B, section 6, 1 for the costs of a program, formerly required by regulations of the Department of Education, to alleviate and prevent racial and ethnic segregation of students (the antisegregation regulations). The ...
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Opinion Does mandamus lie to compel a registrar of voters to accept for filing a ballot argument that a voter tried to file more than five *392 hours after the widely publicized filing deadline? Invoking, among other things, the public interest in providing voters with a balanced statement of positions on the proposed ballot measure, the superior court concluded it did and co...
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We must decide whether the district court properly barred testimony of witnesses as a sanction for failure to serve a witness list on opposing counsel. I In July 1982, Dr. Ortega filed suit in the district court against Dr. Dennis O’Connor, Executive Director of the Napa State Hospital, and various other Hospital employees (collectively “Dr. O’Connor”), alleging that the search of his...
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Plaintiff-Appellant Forest Conservation Council (“FCC”) appeals the district court’s order granting summary judgment in favor of Defendant-Appellee Rosboro Lumber Company (“Rosboro”). FCC sued Rosboro under the citizen suit provision of the Endangered Species Act, 16 U.S.C. § 1540(g)(1)(A), for violating 16 U.S.C. § 1538(a)(1)(B), which prohibits the “taking” of a federally listed threatened sp...
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DECISION GRANTING PARTIAL SUMMARY JUDGMENT INTERPRETING EARTHQUAKE INSURANCE COVERAGE LIMIT IN FAVOR OF PLAINTIFFS AND AGAINST DEFENDANT INSURANCE COMPANY INTRODUCTION This is an insurance coverage case requiring a judicial interpretation of a liability limit in an insurance contract. Plaintiffs Bertram P. Adler and Barbara L. Adler (“Adlers”) are suing Western Home Insurance Company...
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Opinion In this matter we hold that a creditor whose security interest has lapsed retains priority rights against a subsequent purchaser which acquires its interest in the collateral with actual knowledge of the first creditor’s interest. We therefore issue a writ commanding the trial court to grant petitioner’s request for a preliminary injunction restraining real party from disposing of...
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Opinion I Defendant, John Swain, appeals his conviction of second degree murder and raises the following issues: (1) his trial before a municipal court judge violated articles II, section 1, and VI, section 4 of the state Constitution, as well as the separation of powers doctrine; (2) the denial of his motion to represent himself violated his constitutional right to self-representation; (3) i...
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33 Cal.App.4th 482 (1995) 39 Cal. Rptr.2d 354 In re MARVEN C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MARVEN C., Defendant and Appellant. Docket No. B078648. Court of Appeals of California, Second District, Division Four. March 24, 1995. *483 COUNSEL Barbara Michel, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lun...
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Opinion Introduction Willie Williams (Williams) appeals from the judgment entered following a jury trial in which he was convicted of possession of a controlled substance, cocaine base, in violation of Health and Safety Code section 11350, a lesser included offense to that charged in the information filed against him. As to the offense charged, the jury found him not guilty of p...
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Opinion Introduction Kenneth Campbell appeals from a judgment denying a petition for mandamus following the Department of Motor Vehicle’s suspension of his driving license for failure to comply with the financial responsibility laws. We affirm. Facts On December 29, 1992, while driving an automobile owned by his mother, Lee Campbell, appellant was involved in a traf...
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*458 Opinion Mike Patton and Margaret Tam (appellants) appeal from an order denying attorney fees pursuant to a real estate sales contract. They contend that as prevailing parties they are entitled to attorney fees under Code of Civil Procedure sections 1032 and 1033.5. We affirm. Factual Background This litigation arises from a dispute concerning the purchase and sale ...
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Petition for writ of certiorari to the United States Court of Appeals for the Fourth Circuit granted....
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C. A. 3d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of McKennon v. Nashville Banner Publishing Co., 513 U. S. 352 (1995)....
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Mario Diaz (“Mario”) and his wife Maria (collectively “Diazes”) sue United Agricultural Employee Welfare Benefit Plan and Trust (the “Plan”) and Associated Citrus Packers (“Associated”) for medical benefits assertedly owed to Diazes under the Plan, an employee welfare benefit plan subject to the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. §§ 1001-1461, and to the Consolidated Omni...
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OVERVIEW California state prisoner James Edward Hegler appeals the district court’s decision to dismiss his 28 U.S.C. § 2254 petition for writ of habeas corpus challenging his conviction and sentence for murder. Hegler contends the district court erred by treating the violation of his derivative Sixth Amendment constitutional right to be present at the reading of trial testimony to the jur...
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51 F.3d 820 UNITED STATES of America, Plaintiff-Appellee,v.Carlos Tapia PONCE, aka Carlos Perez, Ricardo Lopez Mateos,Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.James Romero McTAGUE, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Hector Tapia ANCHONDO, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Hugo Fernando CASTILLON-ALVAREZ,...
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In this dispute over the proceeds of United States Air Force Airman Anthony Perez’s military life insurance policy, the district court granted summary judgment in favor of the deceased’s father, Carlos Perez. Airman Perez’s wife, Lori Perez, appeals, claiming that whether the form designating Carlos Perez as beneficiary was received by the United States Air Force is a disputed issue of material f...
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50 F.3d 788 Eric SCHROEDER, Plaintiff-Appellee,v.Pete McDONALD, Branch Administrator; Susan Segawa, SocialWorker; Ron Mico, Social Worker; George W.Sumner, DPS Director; Roland Leong,Prison Guard, Defendants-Appellants. No. 93-15169. United States Court of Appeals,Ninth Circuit. March 27, 1995. Before: POOLE, WIGGINS and THOMAS G. NELSON, Circuit Judges. ...
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Opinion Introduction Judgment debtors John and Barbara Pim and Pim Electric, Inc., appeal from an order of a referee appointed by the Alameda County Superior Court, ordering appellants to turn over to a levying officer 27 specific assets identified by appellants during their judgment debtor examinations to satisfy a debt owed to respondent Imperial Bank (Bank). 1 Appel...
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Opinion This is an appeal from a summary judgment ordering the California Department of Food and Agriculture (the Department) to return service charges collected from the respondent airlines and enjoining the Department from collecting such charges in the future. Introduction The service charges were levied pursuant to the California Airport and Maritime Plant Quarantine, Inspec...
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Opinion Loren J. Prostano (Prostano) appeals from a postjudgment of dissolution of marriage order of modification of child support for the son of the parties bom in September 1990. The principal issue on appeal is whether the trial court erred in treating the travel expenses of the father (Gigliotti) to Massachusetts to visit with the parties’ son as a deduction from the amount of child support m...
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*533 Opinion In this case we hold that when a criminal defendant could have raised an issue in a previous appeal but did not do so, the defendant may be deemed to have waived the right to raise the issue in a subsequent appeal, absent a showing of good cause or justification for the delay. Since we perceive no reasonable basis for the failure to raise a sentencing issue advanced for the first...
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514 U.S. 159 (1995) QUALITEX CO. v. JACOBSON PRODUCTS CO., INC. No. 93-1577. United States Supreme Court. Argued January 9, 1995. Decided March 28, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT *160 Breyer, J., delivered the opinion for a unanimous Court. Donald G. Mulack argued the cause for petitioner. With him on the briefs were Christopher A. Bloom, Edward J. Ch...
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51 F.3d 199 INTER TRIBAL COUNCIL OF ARIZONA, INC., an Arizona non-profitcorporation, individually and as Trustee of the ArizonaInter Tribal Trust Fund; the Havasupai Indian Tribe, aFederally recognized Indian Tribe; San Carlos Apache Tribe,a Federally recognized Indian Tribe; the Tonto ApacheTribe, a Federally recognized Indian Reservation; theHualapai Indian Tribe, a Federally recognized ...
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51 F.3d 834 41 Fed. R. Evid. Serv. 1221 BEECH AIRCRAFT CORPORATION, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.Stephen EVANGELISTA, Plaintiff,Personal Injury Plaintiffs' Steering Committee, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.The TAUBMAN COMPANY, INC., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. Nos. 93-1698...
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51 F.3d 203 31 Fed.R.Serv.3d 813 In re GRAND JURY SUBPOENA ISSUED TO Charles D. BAILIN.Edward SILVA, Jr.; Silva Harvesting Inc.; Edward O.C. Ord,Inc.; Ord & Norman, Appellants,v.UNITED STATES of America, Appellee.Edward SILVA, Jr., an individual; Silva Harvesting Inc.;et al., Petitioners,v.UNITED STATES DISTRICT COURT FOR the NORTHERN DISTRICT OFCALIFORNIA, Respondent,United States...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Defendants have moved for summary judgment. The motion was opposed, argued and submitted for decision. The court has reviewed the moving and opposing papers, the extensive factual record submitted in support of and in opposition to the motion, the arguments of counsel, the record in the case, and the applicable authorities. The court concludes that...
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ORDER DENYING DEFENDANT WAL*MART, INC.’s MOTION TO DISMISS PLAINTIFF ELY’S FIRST AND SEVENTH CLAIMS FOR RELIEF Defendant WaPMart, Inc.’s (WaPMart’s) motion to dismiss plaintiff Kathleen Ely’s (plaintiffs) first and seventh claims for relief in her original complaint 1 (motion) was heard on or about 10 a.m. on January 23, 1995 before the Honorable Judge Robert J. Timlin. Ma...
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Opinion In this case, we hold that a hotel has no duty to warn its guests of a dangerous condition of adjacent property over which the hotel has no control, to wit, the ocean currents. Petitioner Princess Hotels International, Inc. (Princess) is a defendant in an action for personal injuries and wrongful death brought by real parties Linda L. Pearson and the estate of her deceased former husb...
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Opinion Frank S. Zolin, as Director of the Department of Motor Vehicles (DMV), appeals from a judgment granting respondent Jeffrey Scott Gananian’s petition for writ of mandamus. The writ directs the DMV to set aside its suspension of Gananian’s driving privilege for driving with an illegal blood-alcohol concentration (BAC). The DMV contends that substantial evidence does not support the ...
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Opinion This petition for writ of mandate challenges decisions by the San Mateo County Municipal and Superior Courts refusing to stay the municipal court trial of Scott Anthony Ellis pending his appeal to the appellate department of the superior court from denial of his Penal Code *655 section 1538.5 1 suppression motion. Appeal is the only pretrial remedy for an e...
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33 Cal.App.4th 592 (1995) 39 Cal. Rptr.2d 470 Estate of JOHN GALLIO, JR., Deceased. HELEN M. GALLIO, as Executor, etc., Petitioner and Respondent, v. GLORIA CONIGLIARO et al., Objectors and Appellants. Docket No. B081175. Court of Appeals of California, Second District, Division Six. March 28, 1995. *594 COUNSEL Lowthorp, Richards, McMillan, Miller, Conway & Templeman and Patrick T. Loughman ...
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Opinion The prosecution appeals from a judgment of conviction following a guilty plea by defendant and respondent Andrew Ramirez to *562 residential burglary and his admission of a prior serious felony conviction within the meaning of Penal Code 1 section 667, subdivision (a) and subdivisions (b) through (i). We are asked to determine the appropriate sentence of a ...
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Opinion Defendant was charged by amended information as follows: counts I and II—separate incidents of forcible rape (Pen. Code, §261, subd. (a)(2)) 1 and count III—attempted forcible oral copulation (§§ 288a, subd. (c), 664). It was further alleged as to each count that defendant had been convicted of and served prison terms for two prior sex offenses (§ 667.6, subd. (b)) and ...
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Opinion Defendant Randy A. Ireland was charged by complaint in municipal court with misdemeanor offenses of driving under the influence of *685 alcohol (Veh. Code, §23152, subd. (a)), 1 and driving with .08 percent or more, by weight, of alcohol in his blood (§ 23152, subd. (b)). The jury found defendant guilty on the section 23152, subdivision (b) count, but ...
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This case arises out of a civil forfeiture of funds in an account owned by appellant Ban-co Nacional de Mexico (“Banamex”). The contents of the account were seized as funds connected to illegal money laundering, pursuant to the civil forfeiture statute, 18 U.S.C. § 981. The district court entered judgment in favor of the Government after trial. The parties agree that the forfeiture can only be ...
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The Hawaii Helicopter Operators Association (“HHOA”) petitions, pursuant to 49 U.S.C. § 46110(a), for review of the Federal Aviation Administration’s issuance of Special Federal Aviation Regulation (“SFAR”) No. 71 establishing special operating rules, procedures and limitations for airplane and helicopter air tour operators in Hawaii. The regulation was promulgated on an emergency *214 basis pu...
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50 F.3d 1493 63 USLW 2655, Fed. Sec. L. Rep. P 98,649,33 Collier Bankr.Cas.2d 270, 27 Bankr.Ct.Dec. 14,Bankr. L. Rep. P 76,446 James JACOBSON, and Arthur Fury, on behalf of themselves andall others similarly situated, et al., Plaintiffs-Appellants,v.AEG CAPITAL CORP.; Frank Maier; Gunther Ertelt; and JohnDoes 1-10, et al., Defendants-Appellees. No. 92-16603. United States Cour...
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INJUNCTION ORDERING THE STATE OF CALIFORNIA AND GOVERNOR PETE WILSON TO COMPLY WITH THE NATIONAL VOTER REGISTRATION ACT OF 1993 I. INTRODUCTION This action questions whether the National Voter Registration Act, an otherwise laudable attempt by Congress to promote nondiscriminatory voter registration standards, is nevertheless unconstitutional because it invades powers reserved to the stat...
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Opinion In this appeal and cross-appeal we consider challenges to the statutory and regulatory scheme establishing and governing the San Joaquin Valley Quality Cotton District (the district). (Food & Agr. Code, § 52851 et seq.) 1 The challenging plaintiffs are growers and breeders of cotton and the defendants are the director of the Department of Food and Agriculture, the San J...
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Opinion Phillip Vega appeals from the judgment entered on a jury verdict convicting him of inflicting corporal injury in violation of Penal Code section 273.5, subdivision (a). 1 The trial court imposed the three-year middle prison term and ordered him to pay a $200 restitution fine pursuant to former Government Code section 13967. Appellant raises four issues on appeal: (1) is...
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51 F.3d 220 MINCHUMINA NATIVES, INC., Plaintiff-Appellant,v.UNITED STATES DEPARTMENT OF INTERIOR, Defendant-Appellee,andState of Alaska; Minchumina Homeowners Association,Defendants-Intervenors-Appellees. No. 93-35841. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 3, 1994.Decided March 30, 1995. Michael J. Walleri, Tanana Chiefs Conference, Anc...
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ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT HONGKONG BANK’S MOTION TO DISMISS This matter came on regularly for hearing before this Court on January 9, 1995 before the Honorable A. Andrew Hauk, United States District Judge. This Court has fully considered all legal points and authorities, and arguments and now makes and enters its ORDER. INTRODUCTION Plaintiff, MTC ELECTRONIC TECHNOLOGIE...
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OPINION OVERVIEW The bankruptcy court authorized a sale of the debtor’s property free and clear of liens. The resulting proceeds were significantly less than the amount secured by the senior lien. The senior lienor had not received notice of the sale and consequently did not appear. The court determined that the trustee’s attempted notice to the senior lien- or satisfied due proc...
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Opinion In this case, we deal with one of the important implications of the Supreme Court’s most recent decision on a liability insurer’s duty of defense. In Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287 [24 Cal.Rptr.2d 467, 861 P.2d 1153] (Montrose I), the court recognized that a liability insurer’s duty to defend arises upon tender ...
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Opinion On December 31, 1986, John Mgrdichian (Mgrdichian), a member of the board of directors (Board) of the California Commerce Club, Inc. (Corporation), purchased 200 shares, 14 percent of the outstanding shares, of Corporation stock from fellow Board member Herbert Stem (Stem). This purchase brought Mgrdichian’s holdings to 330 shares, 23 percent of the issued and outstanding shares o...
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Opinion Thomas L. Gooch appeals the judgment on his conviction of transporting methamphetamine (Health & Saf. Code, § 11379, subd. (a)). *1006 On April 12,1993, San Diego Police Officer Spear detained Gooch after observing him driving a pickup with expired license tags. After Gooch told Spear his driver’s license was suspended, the officer arrested Gooch for driving without ...
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Opinion Petitioner Marcy A. Shaffer (Shaffer), who is not a party to the underlying malpractice action, petitions this court for a writ of mandate directing the respondent trial court to vacate its order of August 12, 1994, ordering Shaffer to disclose the hourly rate she was paid as a contract staff attorney by the law firm of Gibson, Dunn & Crutcher (defendant) while working on defendan...
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50 F.3d 789 LEGALIZATION ASSISTANCE PROJECT OF the LOS ANGELES COUNTYFEDERATION OF LABOR (AFL-CIO); et al., Plaintiffs-Appellees,v.IMMIGRATION & NATURALIZATION SERVICE; et al., Defendants-Appellants. Nos. 89-35345, 89-35593, 89-35613 and 89-35706. United States Court of Appeals,Ninth Circuit. March 31, 1995. On Remand from the United States Supreme Court. Bef...
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OPINION Appellant, a judgment creditor, seeks reversal of the order denying his motion for entry of a default judgment and dismissing his nondischargeability complaint against debtors. As debtor-transferors can have no monetary obligation under the state fraudulent transfer law which could be nondis-ehargeable, we AFFIRM. CONTEXT On 24 July 1990, Plaintiff Phillip Quarré, as...
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33 Cal.App.4th 1087 (1995) 39 Cal. Rptr.2d 530 THE PEOPLE, Plaintiff and Respondent, v. KIMBERLY JANICE JONES, Defendant and Appellant. Docket No. H011998. Court of Appeals of California, Sixth District. March 31, 1995. *1088 COUNSEL Robert Spertus, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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Opinion Plaintiff and appellant Axel Belio (Belio) appeals a judgment following a grant of summary adjudication in favor of defendant and respondent Panorama Optics, Inc. (Panorama). The issue presented is whether Panorama properly negated Belio’s action for involuntary dissolution of the corporation. We conclude Belio is not entitled to involuntary dissolution pursuant to Corpo...
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with whom Justice O’Connor joins, dissenting. Despite the Court’s lucid and thorough discussion of the relevant law, I am unable to join its conclusion for one simple reason. Like the judges of the Court of Appeals, I believe the tax at issue here and the tax that this Court held unconstitutional in Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948), are, for all relevant purposes, iden...
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33 Cal.App.4th 1052 (1995) 39 Cal. Rptr.2d 396 WHITTIER REDEVELOPMENT AGENCY, Plaintiff and Appellant, v. OCEANIC ARTS et al., Defendants and Respondents. Docket No. B085788. Court of Appeals of California, Second District, Division Seven. March 30, 1995. *1054 COUNSEL Rutan & Tucker, Jeffrey M. Oderman, Philip D. Kohn and A. Patrick Munoz for Plaintiff and Appellant. Sullivan, Workman & Dee, Hen...
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*1112 Opinion The case before us presents a unique and difficult question. Two men assert a parental interest in a child, and while both have a basis for their claim, the law allows for only one legal father. Matthew S. contends that the trial court erred in refusing to apply former Evidence Code section 621, subdivision (a) 1 , conclusively presuming him to be the father of the minor child...
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51 F.3d 843 63 USLW 2650, 129 Lab.Cas. P 33,216,2 Wage & Hour Cas.2d (BNA) 1089 Justin STEINBACH; Gary Yurina; Robert Wattez; ElizabethBlasdell; Scott Farlow; David Williams; Leslie Bannerman;Cheryl Bowman; Randy Vanderheiden; Janet Evans; DebbieTalley; Daylon Sweeney, Plaintiffs-Appellants,v.Steven HUBBARD, and the marital community of Steven andSheila Hubbard d/b/a Hubbard...
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Rick Paul Springer was convicted of failing to surrender for the service of his sentence for a previous crime. See 18 U.S.C. § 3146(a)(2). He represented himself and now claims that he was not properly questioned about his waiver of counsel. He also asserts that the district court erred in its rulings regarding his defense, which was, in effect, that because of his opposition to nucl...
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52 F.3d 207 41 Fed. R. Evid. Serv. 1137 UNITED STATES of America, Plaintiff-Appellee,v.Mark Allyn TORY, Defendant-Appellant. No. 93-50577. United States Court of Appeals,Ninth Circuit. Submitted August 3, 1994.*Decided April 3, 1995. Farris, Circuit Judge, filed dissenting opinion. Yolanda M. Barrera, Los Angeles, CA, for defendant-appellant. Brent A. Whi...
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Larson Foster Chatlin, Jr. pleaded guilty to sexual abuse of a minor on an Indian ■reservation, a violation of 18 U.S.C. §§ 1153 and 2243(a). He appeals the sentence imposed under the United States Sentencing Guidelines (the guidelines) after we vacated and remanded his previous sentence. In the prior appeal, United States v. Chatlin, 15 F.3d 1090 (9th Cir.1994), we held in an u...
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Defendant Stephen Feinstein, a former superintendent of the Eastern Oregon Psychiatric Center (“EOPC”), appeals the district court’s judgment denying him qualified immunity in Plaintiff Cathy Neely’s action against him for failing to protect her from sexual abuse while she was a patient at EOPC. Neely also named as defendants John Brown, Jane Beshore, 1 Linda Murgo, and Cecilia Hosley, other em...
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*1225 Opinion This mandate proceeding presents the question of law whether the statute of limitations provided in Penal Code section 803, subdivision (g) (effective January 1, 1994) may revive and extend the statutory limitations period which was in effect when the charged sex offenses were allegedly committed but which expired prior to the effective date of section 803, subdivis...
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OVERVIEW Robert and Mary Fadem (the Fadems) filed suit under the Quiet Title Act (QTA), 28 U.S.C. § 2409a, challenging the United States’ claim to real property in San Diego County, California. They appeal the district court’s dismissal of the case which held that the Fadems’ claim was time-barred; equitable tolling does not apply to the QTA; and the Fadems had notice of the “contours” of ...
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Two foreign corporations filed the instant action in federal district court against several foreign and domestic companies, asserting federal antitrust claims and state law causes of action for breach of contract, interference with contractual relations, and indebitatus assumpsit. The district court entered summary judgment in favor of the defendants on all claims, and the plaintiffs have appealed...
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Stephen Ralls, Esq. (“Ralls”), a criminal defense attorney, appeals the district court’s order denying in part his motion to quash a grand jury subpoena which required him to provide information regarding a client/fee-payer. Ralls also appeals from the district court’s order holding him in contempt for failure to provide information pursuant to court orders. Upon examination of Ralls’ sealed af...
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Sisters of Providence hospitals (providers) appeal from the district court’s summary judgment order affirming the determination of the Secretary of Health and Human Services (Secretary) disallowing the use of a “blended” interest rate for purposes of Medicare reimbursement. Under the Medicare Act, 42 U.S.C. § 1395 et seq., hospitals are reimbursed for interest costs that are “actual” and “necessar...
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Ted Montford appeals the district court’s award of summary judgment to Certain Underwriters at Lloyd’s. The district judge found that Montford’s misrepresentations and omissions in obtaining the insurance on his vessel and his violation of the cruising warranty rendered the policy void. We affirm. I. Background Appellant Ted Montford (“Montford”) initially sought an insurance policy f...
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Opinion I Introduction Although the statute does not define the term, Penal Code section 422 requires that the defendant’s threat cause the victim to be in “sustained fear.” *1151 In this case, the defendant threatened to kill the victim and her daughter while pointing a gun at the victim. The victim telephoned the police, who arrested the defendant in approximately 15 minutes. We hold th...
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*1121 Opinion Statement of the Case By amended information filed on October 21, 1992, defendant Mark Steven Garcia was charged as follows: rape by a foreign object and lewd act upon a child, Danielle M., on and between October 1, 1991, and December Í3, 1991 (counts I and II; Pen. Code, 1 §§ 289, subds. (a) through (j) and 288, subd. (a), respectively); lewd act upon a child, Sandra M., on...
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Opinion In this case we are asked to determine whether an employee’s injury, which occurred while she was practicing at home to pass one of the protocols in an annual physical fitness test given by her employer, is compensable under this state’s workers’ compensation laws. We conclude the employee’s subjective belief, that as a condition of her employment, she was requried to practice for...
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Opinion [[]] * Plaintiff appeals from the judgment entered after the trial court sustained defendant’s demurrer to Plaintiff’s complaint without leave to amend. [[]]* Procedural Background (E012417) On April 16, 1992, Plaintiff initiated this action against Devendrá Singh Narula, personal representative of the estate of Manjit Singh, deceased *1143 (Defendant). 1 Following Defendant’s...
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This case involves two issues, the retroactive availability of punitive damages and attorneys’ fees. Both are questions of Washington law, but Washington state law applies federal law. I. FACTS Mr. McGinnis worked as a manager for Kentucky Fried Chicken. He developed cancer and required surgery. He returned to work shortly after his surgery, but required continuing treatment. For six weeks, he o...
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The orders on appeal in these cases arose after the Office of the United States Trustee objected to fees paid and agreed to be paid to the law firm of Hessinger & Associates (“Hessinger”) by Chapter 7 debtors Deborah Sogge and Mark Elección. The bankruptcy court entered an order and memorandum decision which were given a miscellaneous case number, 94 — 102, and captioned “In re Hessinger & Asso...
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Opinion I. Introduction Yayehyerade Bekele appeals from a judgment of conviction for armed robbery, assault with a firearm, and related offenses. We hold there was substantial evidence of armed robbery of a property owner’s companion where the companion had implied authority to help stop a theft in progress, but there was no substantial evidence of assault with a firearm because there was no ...
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Opinion Appellant, Miguel Angel Gonzalez, was convicted by a jury of two counts of assault with intent to commit unlawful oral copulation (Pen. Code, §§ 220, 288a, subd. (c)) and one count of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)). The jury found that appellant used a deadly weapon in the commission of ...
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*1447 Opinion Introduction Under Health and Safety Code section 11370.4, subdivision (a), 1 a person convicted of certain drug offenses must receive a sentence enhancement based on the weight of the drug involved. The enhancement, an additional prison term ranging from three to twenty-five years, increases at specified intervals as the weight of the drug increases. In the trial court, p...
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Opinion In this mandamus proceeding, we decide a venue question where an individual is joined as a defendant on an alter ego theory in a breach of contract action against a corporation. May the individual defendant transfer the action to the county of his or her residence when the action has been properly laid in a different county as to the corporate defendant? We decide for the purposes...
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33 Cal.App.4th 1429 (1995) 39 Cal. Rptr.2d 791 DENNIS R. CARROLL, Plaintiff and Appellant, v. IMPORT MOTORS, INC., et al., Defendants and Appellants; BMW CREDIT CORPORATION et al., Defendants and Respondents. Docket No. A062754. Court of Appeals of California, First District, Division Two. April 7, 1995. *1431 COUNSEL Georgia Ann Michell for Plaintiff and Appellant. Dean Christopherson for Defend...
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Opinion A jury convicted defendant Stephen Allen Champion of two counts of murder (Pen. Code, § 187), 1 two counts of robbery (§ 211) and one count of burglary (§ 459), finding that he was armed with a firearm in the course of each offense (§ 12022, subd. (a)). On the two counts of murder, the jury found the existence of these special circumstances: robbery murder (§ 190.2, subd. (a)(17)(i)),...
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Opinion A jury convicted appellant of second degree murder (Pen. Code,1 § 187) and found true a personal use of a firearm allegation (§ 12022.5, subd. (a)). Appellant was sentenced to state prison for 20 years to life. Appellant contends (1) it was error to admit the preliminary hearing testimony of Gwendolyn Davidson because the prosecution failed to exercise reasonable diligence to procure her ...
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Appellant Lorenzo Naranjo appeals his sentence under 21 U.S.C. § 841(b)(l)(A)(ii), which imposed a mandatory 10 year term of imprisonment for conspiracy to possess with intent to' distribute five or more kilograms of cocaine. Naranjo pled guilty to violating 21 U.S.C. § 846 (conspiracy to possess with intent to distribute cocaine) and 31 U.S.C. § 5324 (cash transaction structured to evade reporti...
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51 F.3d 1449 31 Fed.R.Serv.3d 948, 19 Employee Benefits Cas. 1116,Pens. Plan Guide P 23907Z Clarence KAYES; Gene Kennedy; Sharon Kennedy; Wiley Lacy;John R. Maurer; Lester Reynolds; Shirley Reynolds;Hollis Rollins; Donald Filby; Jack Miller; James Lovell;Paul S. Brady; Wilfred A. Blain; Lloyd S. Tucker; DonaldJ. Schoenhofer, Plaintiffs-Appellants,v.PACIFIC LUMBER COMPANY; Maxxa...
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Opinion Plaintiff Alfred O. Couch worked as a campus security officer, or “monitor,” at Rio Americano High School in Carmichael. On arriving at work on the morning of February 28, 1992, he was shown a portion of an article in that day’s edition of the school newspaper. He concluded, without reading the rest of the article, that it accused him of being, among other things, a murderer and a...
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Opinion Defendant, Lawrence Hatcher, appeals after a guilty plea to a narcotics charge and his admission he had previously been convicted of serious felony. (Pen. Code, § 667, subds. (b)-(i).) In the published portion of this opinion, we hold that the use of a serious prior conviction committed prior to March 7, 1994, to enhance defendant’s sentence did not violate the ex post facto provisions ...
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*1486Opinion Charles L. Freiberg attempts to appeal the judgment of nonsuit entered against him as to the City of Mission Viejo, contending there was evidence from which the jury could have found Mission Viejo liable. Mission Viejo moved to dismiss the appeal as untimely. We grant the motion and dismiss. Because we find the appeal was not timely, only a brief summary of the facts is necessary. Fre...
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*1475 Opinion Paul J. Burchett and Doreen A. Burchett appeal the dismissal of their complaint after the court (1) sustained without leave to amend the demurrer of City of Newport Beach (City) and Bob Wynn, city manager, and (2) granted motions to quash service by certain specially appearing City officials and department heads. The Burchetts sought $8.7 million in damages for the ...
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9 Cal.4th 1026 (1995) 891 P.2d 136 39 Cal. Rptr.2d 590 In re the Marriage of JOHN H. and EDIE M. ELFMONT. JOHN H. ELFMONT, Appellant, v. EDIE M. ELFMONT, Respondent. Docket No. S038966. Supreme Court of California. April 10, 1995. *1028 COUNSEL Olsen & Olsen, Neil A. Olsen and Casey A. Olsen for Appellant. Dennis R. Dubrow and Edward J. Horowitz for Respondent. OPINION WERDEGAR, J. Under what...
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I respectfully disagree with the majority’s conclusion that the trial court did not err in its handling of the circumstances that arose on the death of Juror Coley’s father. I concur, however, in the majority’s judgment affirming defendant’s conviction and death sentence because the record on appeal does not provide a basis for determining that the error was prejudicial. Put simply, the situation ...
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54 F.3d 544 UNITED STATES of America, Plaintiff-Appellee,v.Todd Eugene CANNADY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Peter Jess OJEDA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Robert Lewis BLACK, Defendant-Appellant. Nos. 94-50207, 94-50214 and 94-50297. United States Court of Appeals,Ninth Circuit. Submitted Feb. 6, 1995.*Arg...
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52 F.3d 252 75 A.F.T.R.2d 95-1727, 31 Fed.R.Serv.3d 1015 Richard J. MARAZITI, Plaintiff-Appellant,v.Robert T. THORPE; David Simmons; Gene Carlson; JamesThibault; United States of America; Mark Van Epps; JaniceL. Platt; First Interstate Bank of California; T.P.Ferrand; City of San Diego; Oscar M. Vasquez; MichaelNichochea, Defendants-Appellees. No. 93-56632. United States...
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June Mendez, a longshore worker, appeals the district court’s dismissal of her diversity action against Ishikawajima-Harima Heavy Industries (“IHI”), the manufacturer of the vessel upon which she slipped and fell. The district court had jurisdiction pursuant to 28 U.S.C. § 1332, we have jurisdiction pursuant to 28 U.S.C. § 1291. Mendez contends that the district court improperly dismissed her c...
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51 F.3d 1473 33 Collier Bankr.Cas.2d 540, 27 Bankr.Ct.Dec. 108,Bankr. L. Rep. P 76,465 In re Michael A. FERRANTE; In re Geraldine L. Ferrante, Debtors.Edward WALSH, Chapter 11 Trustee in Bankruptcy, Plaintiff-Appellee,v.NORTHWESTERN NATIONAL INSURANCE COMPANY OF MILWAUKEE,WISCONSIN, a Wisconsin corporation, Defendant-Appellant. No. 93-16700. United States Court of Appeals,Ninth C...
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52 F.3d 255 149 L.R.R.M. (BNA) 2080, 130 Lab.Cas. P 11,311 LOUISIANA-PACIFIC CORPORATION, WESTERN DIVISION, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.LOUISIANA-PACIFIC CORPORATION, WESTERN DIVISION, Respondent. Nos. 93-70829, 93-70887. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 16, 1995.De...
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Parks School of Business appeals the district court’s dismissal of its complaint against Arizona Governor Fife Symington, United Student Aid Funds, and various of its officials for failure to state a claim. 1 It also contends that if dismissal was proper, it should have been without prejudice so that Parks could file an amended complaint revising its allegations that the defendants u...
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52 F.3d 260 149 L.R.R.M. (BNA) 2087, 130 Lab.Cas. P 11,308,41 Fed. R. Evid. Serv. 1287 ATLANTIC-PACIFIC CONSTRUCTION COMPANY, INC., d/b/aAtlantic-Pacific Management, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent.NATIONAL LABOR RELATIONS BOARD, Petitioner,v.ATLANTIC-PACIFIC CONSTRUCTION COMPANY, INC., d/b/aAtlantic-Pacific Management, Respondent. Nos. 93-70915, 93-71044. ...
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I reluctantly concur in the result. I agree generally with the substance of the lead opinion, which is that the identity of petitioner's "assistant" is discoverable and petitioner has failed to provide sufficient information to permit this court to ascertain that there is a real threat of improper retaliation to her source. While the identity of petitioner's "assistant" is not itself relevant to ...
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Opinion I. Introduction Robert and Pamela Morton brought this strict products liability action against Owens-Coming Fiberglas Corporation (OCF) and others for damages arising from Mr. Morton’s exposure to asbestos containing products and his consequent development of mesothelioma, an asbestos-caused form of cancer. Although Mr. Morton died before the trial was complete, OCF was ultim...
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John Witherow,. an inmate in the Nevada State prison system, filed this complaint pursuant to 42 U.S.C. § 1983. He alleges that defendants violated his constitutional rights by refusing to allow him to send mail to the Nevada Attorney General without a “cursory visual inspection” of the contents of the envelope in order to check for offensive or dangerous materials. The defendants are various pri...
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51 F.3d 900 John H. MEYER, Plaintiff-Appellee-Cross-Appellant,v.FIDELITY SAVINGS, et al., Defendants,andFederal Savings and Loan Insurance Corporation,Defendant-Appellant-Cross-Appellee. Nos. 89-16695, 90-16025. United States Court of Appeals,Ninth Circuit. April 12, 1995. On Remand from the United States Supreme Court. Before: TANG, FARRIS and D.W. NELSON, Circui...
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This appeal from a district judge’s denial of an extension of time to file notice of appeal raises questions of first impression concerning the interpretation of Federal Rule of Appellate Procedure 4(a)(6). Rule 4(a)(6) provides for an extension of time upon a showing that the would-be appellant did not receive notice of the entry of judgment and that no other party would be prejudiced by the e...
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Opinion We are ordered to vacate our decision of October 26, 1994, and to reconsider the cause in light of People v. Rayford (1994) 9 Cal.4th 1 [36 Cal.Rptr.2d 317, 884 P.2d 1369]. Appellant Leonard Smith appeals from a judgment entered after a jury convicted him of counts 1 and 2 for forcible rape (Pen. Code, § 261, subd. *1591 (a)(2)), 1 ...
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*1581 Opinion The minor, aged 12 at the time of the offense, was charged in a wardship petition filed with the juvenile court of one count of assault with a deadly weapon in violation of Penal Code 1 section 245, subdivision (a)(1). It was further alleged that the minor inflicted great bodily injury on the victim. The adjudication hearing commenced on May 25,1994. On May 26,1994, the pros...
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Opinion In this case of first impression, we consider whether Civil Code section 3051 or 3080 et seq. 1 governs a dispute involving a veterinary lien for services rendered to a horse. I The facts are not in dispute. We therefore summarily discuss them as background for the underlying issue. In February 1994, a blood-bay horse, owned by Frank and Tara Jakubaitis, was a...
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OPINION Appellants, chapter 7 debtors, appeal the bankruptcy court’s rejection of their application for an award of attorney’s fees and damages based on the Appellee’s alleged violation of the section 362 automatic stay. For the reasons expressed in this memorandum, we affirm the bankruptcy judge’s ruling. FACTS AND PROCEEDINGS BELOW Debtors, Gregory Alan McHenry and Michele Lee McHenry (...
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*952Opinion by Judge O’SCANNLAIN; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION We must decide whether the sale of an unregistered recording constitutes “publication” for copyright purposes. I In its copyright infringement suit against the Texas blues-rock band “ZZ Top” and others, La Cienega Music Company (“La Cienega”) accuses them of plagiarism in the composition of the so...
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53 F.3d 236 UNITED STATES of America, Plaintiff-Appellee,v.Darrell L. HARBER, Defendant-Appellant. No. 93-10665. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 16, 1994.Decided April 13, 1995. Michael Morales, Phoenix, AZ, for defendant-appellant. Matthew F. Heffron (argued) and Joan G. Ruffennach (on the briefs) Asst. U.S. Attys., Phoenix,...
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Opinion I. Introduction Terrell Javon Reed is a “second strike” defendant under California’s new “Three Strikes” law: he has been convicted of robbery (his second strike), and he has a prior conviction for residential burglary (his first strike). He contends the court erred in employing the Three Strikes law to impose twice the base term for the robbery because his first strike preda...
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Opinion In this case, we will hold that the regional welfare doctrine adopted by our Supreme Court in Associated Home Builders etc. *1673 Inc. v. City of Livermore (1976) 18 Cal.3d 582 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038] (Livermore), as a limit on a city’s power to make land-use decisions, does not apply to and cannot be used to challen...
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Opinion Petitioner PH II, Inc., seeks a writ of mandate to compel respondent superior court to set aside its order sustaining a demurrer to portions of two causes of action. We do not reach the merits but resolve this matter on a procedural issue after supplemental briefing by the parties. We affirm the rule that a party may not demur to a portion of a cause of action (Grieves ...
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Opinion Defendant and appellant Alberto Valdez 1 appeals from a judgment of conviction following a certified guilty plea in municipal court to the sale of cocaine and an admission of a prior narcotics-related conviction. Defendant contends the superior court acted in excess of its jurisdiction *1636 when it denied his motion to withdraw his guilty plea, instead of ...
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The sole issue before us is whether the defendant’s contacts with the forum adequately supported the exercise of personal jurisdiction. We affirm the district court’s dismissal, because they did not. I. FACTS The case was dismissed on what was called a motion for summary judgment based on lack of jurisdiction, but more properly should be considered a motion to dismiss pursuant to ...
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51 F.3d 1489 31 Fed.R.Serv.3d 719, 25 Envtl. L. Rep. 20,879 WASHINGTON STATE DEPARTMENT OF TRANSPORTATION,Plaintiff-Appellant-Cross-Appellee,v.WASHINGTON NATURAL GAS COMPANY, Pacificorp,Defendants-Appellees-Cross-Appellants,Advance Ross Corporation,Third-Party-Defendant-Appellee-Cross-Appellant. Nos. 93-35088, 93-35130, 93-35137, 93-35289, 93-35292 and 93-35330. United States Court...
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Opinion In April 1992, the chair of surgery informed a female physician she would have to leave the school’s residency program by June *1713 1993 if she did not repeat her third clinical year of training. The physician did not repeat the year. She filed an administrative claim in July 1993 and sued the chairman and the school in August 1993 for sex discrimination. The questio...
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33 Cal.App.4th 1613 (1995) 39 Cal. Rptr.2d 806 JUDY A. FERGUSON, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD and RALEY'S SUPERMARKETS, Respondents. Docket No. A063246. Court of Appeals of California, First District, Division Two. April 13, 1995. *1616 COUNSEL Mark E. Gearheart for Petitioner. William B. Donohoe, Joseph J. D'Andre, Mark R. Lippman and Mark R. Peterson for Respondents. OPINI...
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Opinion In this case we have explored the difficult question of the extent to which a police officer may rely upon computer-generated data furnished by the judicial system in carrying out searches and seizures. We conclude, consistent with the recent announcement by the United States Supreme Court in Arizona v. Evans (1995) 514 U.S._[131 L.Ed.2d 34, 115 S.Ct. 1185], 1 that where errors ex...
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Opinion In these proceedings, the members of the San Diego County Board of Supervisors seek a writ of review directing the respondent *1729 superior court to vacate its order issued August 29, 1994, adjudging the board members to be in contempt of court and imposing fines for willful disobedience of a consent decree arising out of a jail crowding lawsuit. 1 The trial court also held in cont...
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33 Cal.App.4th 1659 (1995) 40 Cal. Rptr.2d 49 THE PEOPLE, Plaintiff and Respondent, v. TROY PAUL RACKLEY, Defendant and Appellant. Docket No. H011451. Court of Appeals of California, Sixth District. April 13, 1995. *1661 COUNSEL Michael P. Thorman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorne...
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Opinion The City of Long Beach, the Long Beach Harbor Department, and the Long Beach Board of Harbor Commissioners (collectively the City) appeal a judgment entered after a jury trial ordering the City to pay $913,425 in damages to Leland R. Hill for breach of contract. Leland R. Hill cross-appeals the sustaining of the demurrers of the City and the individual defendants to his noncontrac...
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Opinion RAMIREZ, P. J. Plaintiff Edward L. Taggart (Taggart), a police officer, was thrown from his motorcycle during training. Afterwards, he developed symptoms which were eventually diagnosed as epilepsy. Taggart and his wife Sarah (collectively plaintiffs) then filed this action against Super Seer Corporation (Super Seer), 1 the manufacturer of the helmet Taggart had bee...
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Pro se petitioner Fred Whitaker has filed a petition for writ of certiorari and requests leave to proceed in forma pauperis under Rule 39 of this Court. Pursuant to Rule 39.8, we deny petitioner’s request to proceed informa pauperis.* Petitioner is allowed until May 8, 1995, to pay the docketing fees required by Rule 38 and to submit his petition in compliance with this Court’s Rule 33. For the re...
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Sup. Ct. N. C. Certiorari granted....
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In a case of first impression in this circuit, we hold that the offense of indecent liberties with a minor, in violation of Washington state law, is a crime of violence for purposes of the career offender provisions of the Sentencing Guidelines. U.S.S.G. §§ 4B1.1, 4B1.2 (Nov. 1993). . BACKGROUND Paul Bradley Wood pleaded guilty in the district court to a single count of mailing a threatening ...
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Defendant Eduardo Garcia-Camacho. and Defendant Jose Jesus Gutierrez-Rosales appeal the denial of their motions to suppress evidence seized after an investigatory stop by U.S. Border Patrol Agents. Defendants claim the agents did not have reasonable suspicion to stop their pickup truck and thus conducted an illegal search and seizure in violation of the Fourth Amendment. The district court held...
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Opinion Johnette M. appeals an order of the juvenile court terminating her parental rights to her minor daughter, Tameka M. Johnette *1749contends the court erred by denying her competent representation by an attorney at the six-month review hearing preceding the termination hearing. She also contends there was insufficient evidence in support of the court’s findings at the six-month review heari...
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Opinion Plaintiff appeals from an order denying her permission to file a late tort claim against a governmental entity (Gov. Code, § 946.6). 1 Statement of the Case On December 8, 1993, plaintiff’s counsel prepared a claim for damages to be presented to the State Board of Control (Gov. Code, § 911.2). The claim alleged medical personnel of the California Correctional Ins...
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delivered the opinion of the Court. The question presented in this case is whether § 27A(b) of the Securities Exchange Act of 1934, to the extent that it requires federal courts to reopen final judgments in private civil actions under § 10(b) of the Act, contravenes the Constitution’s separation of powers or the Due Process Clause of the Fifth Amendment. I In 1987, petitioners brought a civil acti...
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Stephen Louis O’Brien pleaded guilty to a single-count information charging him with conspiracy to distribute cocaine and marijuana, in violation of 21 U.S.C. § 846. O’Brien had two prior felony drug convictions. He *278 was sentenced to twenty years in prison. In this appeal, he challenges only his sentence. He argues the district court erred by enhancing his sentence pursuant to 21 U.S.C. § 8...
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This appeal requires us to decide whether a local law enforcement officer who is cross-deputized as a special United States marshal and acting at the direction of a federal agent loses the protection of 18 U.S.C. § 111 because he was assaulted while intervening in a state law crime. We hold that such an officer is protected by 18 U.S.C. § 111. Steven Darrell Diamond appeals his sentence and con...
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Debtor/Appellant Frank H. Dominguez appeals a bankruptcy appellate panel’s reversal of a bankruptcy court’s dismissal, for failure to meet the limitation requirement of Fed. R.Bankr.P. 4004(a), 1 of Creditors/Appellees David and Denyse Millers’ complaint objecting to discharge of Dominguez’ debt. We affirm the bankruptcy appellate panel’s decision. FACTUAL AND PROCEDURAL BACKG...
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*810 ORDER The opinion of this court, Henry v. Estelle, 993 F.2d 1423 (9th Cir.1993) and amended at 33 F.3d 1037 (9th Cir.1994), is vacated. Duncan v. Henry, — U.S. -, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995). The judgment of the district court is reversed. The petition for writ of habeas is denied for failure to exhaust state remedies. We remand to the district court with direction to reman...
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Arthur Clawson appeals the district court’s denial of habeas relief under 28 U.S.C. § 2255 on Clawson’s claim that his federal sentence under the then existing Armed Career Criminal Act (ACCA), 18 U.S.CApp. § 1202 (1982 & Supp. Ill 1985) (repealed 1986), was improperly enhanced through use of a state conviction that later became nonfi-nal when his appeal from the state judgment was reopened, an...
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34 Cal.App.4th 65 (1995) 40 Cal. Rptr.2d 207 THE PEOPLE, Plaintiff and Respondent, v. JOHN THOMAS BRADY, Defendant and Appellant Docket No. D021274. Court of Appeals of California, Fourth District, Division One. April 18, 1995. *66 COUNSEL Russell S. Babcock, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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*254ORDER We AFFIRM, and adopt the opinion of the Bankruptcy Appellate Panel, 158 B.R. 485 (9th Cir. BAP 1993), as the opinion of this court. AFFIRMED....
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514 U.S. 386 (1995) STONE v. IMMIGRATION AND NATURALIZATION SERVICE No. 93-1199. United States Supreme Court. Argued November 28, 1994. Decided April 19, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *388 *388 Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J.,and Stevens, Scalia, Thomas, and Ginsburg, JJ.,joined. Breyer, J., filed a dissenti...
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514 U.S. 300 (1995) CELOTEX CORP. v. EDWARDS et ux. No. 93-1504. United States Supreme Court. Argued December 6, 1994. Decided April 19, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT *302 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, and Breyer, JJ., joined. Stevens, J., filed a dissenting opinion, in which...
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Opinion The sole issue is whether appellant, when he committed a battery against Officer Nagle, inflicted an injury upon Officer Nagle within the meaning of Penal Code 1 section 243, subdivision (c). We find substantial evidence of such injury and affirm the judgment. Procedural and Factual Background The charges against appellant were battery with injury upon Officer...
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Opinion Following a contested jurisdictional hearing, the juvenile court found that the minor Romeo C., along with co-accuseds James C. and Low Ching S., had committed a felony violation of Penal Code section 246 (unlawfully and maliciously discharging a firearm at an inhabited dwelling). 1 The court also found in enhancement that a principal in the offense was armed with a shotgun (§ 12022, ...
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Opinion After the Department of Consumer Affairs (Department) revoked his locksmith’s permit, plaintiff Sammy Lam filed a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) to overturn the Department’s decision. The trial court denied his petition. On appeal, plaintiff contends the Department’s actions were barred by laches, and further suggests that revocation of hi...
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Opinion A general partnership and its individual general partners, residents of Georgia, sued their insurance company for breach of contract and bad faith insurance practices for refusing to defend a federal *4 case brought in California. The insurance company, a Georgia corporation, obtained an order quashing service of process for lack of jurisdiction. We reverse the order,...
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*1830 Opinion In aworkers’ compensation proceeding, the workers’ compensation judge (WCJ) ruled that dependency, pursuant to Labor Code sections 3501 and 3502, could be determined as of “the date of last industrial exposure,” rather than “the date of injury” set forth in Labor Code section 5412. This ruling meant that dependency status could be determined so as to entitle adult, ...
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Opinion We hold in this case that section 1989 of the Code of Civil Procedure means what it says—a witness is not obliged to appear in court in California unless he is a resident of the state at the time of service. 1 For this reason, a notice to attend trial and bring documents (§ 1987, subds. (b), (c)) served on the custodian of records of a nonresident party is void and unen...
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ORDER ON MOTION FOR SUMMARY JUDGMENT Petitioners are an employer association and one employer member of that association. They bring this action to compel the respondent labor unions to arbitrate grievances brought by the employer under the collective bargaining agreement (CBA).1 The employer filed ten grievances, but respondents declined to participate in the procedures to submit the grievance...
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54 F.3d 549 25 Envtl. L. Rep. 21,043 STATE OF ALASKA, Plaintiff-Appellant,v.Bruce BABBITT, Secretary of the Interior, et al.,Defendants-Appellees.Katie JOHN, et al., Plaintiffs-Appellees,v.UNITED STATES of America, et al., Defendants-Appellants. Nos. 94-35480, 94-35481. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 8, 1995.Decided April 20, 1995. ...
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In this appeal, we consider whether an applicant who was convicted for an “aggravated felony” before the effective date of the Anti-Drug Abuse Act of 1988 (ADAA), Pub.L. No. 100-690, 102 Stat. 4181, 4469-73, §§ 7342-50 (1988), is statutorily barred from applying for discretionary waiver of deportation under Immigration and Nationality Act (INA) § 212(c), 8 U.S.C. § 1182(c) (1988 & Supp. V 1993)...
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Opinion Defendant Charles Roland Stevens was charged by information with four counts of intercepting cordless telephone communications. *58 (Pen. Code, § 632.6, subd. (a).) 1 He pleaded nolo contendere to two of the counts. He appeals the judgment of conviction, contending that section 632.6 is invalid because the area is preempted by federal law. We affirm. ...
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34 Cal.App.4th 73 (1995) 40 Cal. Rptr.2d 223 THE PEOPLE, Plaintiff and Respondent, v. MICHAEL C. HERNANDEZ, Defendant and Appellant. Docket No. F021341. Court of Appeals of California, Fifth District. April 20, 1995. *75 COUNSEL Robert D. Platt, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney G...
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Opinion On November 4, 1994, after granting Attorney H. Peter Young 19 extensions of time to file the appellant’s opening brief in the case of People v. Hayes (S004725, app. pending), this court ordered Young to file the brief on or before December 5, 1994. Young failed to comply with that order and, instead, sought a 20th extension of time to file the brief. On January 11, 1995, in response to an...
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*1816 Opinion In the trial court, plaintiff-employer successfully sought a preliminary injunction precluding defendant, a former employee, from using its trade secrets. However, the trial court denied the employer’s application for injunctive relief to enforce a covenant not to compete. Each party appeals. We conclude that the trial court properly declined to enforce the noncompe...
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53 F.3d 961w 1995 A.M.C. 1755 GALT G/S, Plaintiff,v.HAPAG-LLOYD AG; Can Transport Inc.; Crystal Ice & ColdStorage Co.; D & D Services,Defendants-third-party-plaintiffs-Appellees,v.SAFEWAY STORES, INC., Third-party-defendant-Appellant.GALT G/S, Plaintiff,v.HAPAG-LLOYD AG; Can Transport Inc.; Crystal Ice & ColdStorage Co.; D & D Services; Europe-NorthAmerica Services, Defendants-Appel...
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Appellants appeal the district court’s Fed. R.Civ.P. 12(b)(1) dismissal of their wrongful death and personal injury action brought under the Warsaw Convention. 1 Appellants contend that the district court erred by concluding that it lacked subject matter jurisdiction before allowing them to conduct discovery and holding an evidentiary hearing on the. question of jurisdiction. We have...
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The National Labor Relations Board (“the Board”) found that the company, Mike Yuro-sek & Son, Inc. (“Yurosek”), violated 29 U.S.C. § 158(a)(1) by discharging four employees after they refused to obey their supervisor’s directive to work an extra hour. The Board held that the employees’ refusal to work constituted a protected concerted activity, and the Board ordered Yurosek to offer the employe...
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Today we must clarify our holding in United States v. Becerra, 992 F.2d 960 (9th Cir. 1993). In that case, we held that a defendant is responsible for the amount of drags possessed by a eoconspirator only if that amount was reasonably foreseeable to the defendant. We now hold that a defendant is responsible for the total amount of drugs in his own possession, regardless of whether the amount wa...
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OPINION * James Adolphis Boyd, a Kansas state prisoner housed at the Washington State Penitentiary pursuant to the Interstate Corrections Compact (ICC), appeals pro se the district court’s 28 U.S-.C. § 1915(d) dismissal of his 42 U.S.C. § 1983 action alleging that Washington state prison authorities have denied him meaningful access to the courts because the law library at the Washington Stat...
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52 F.3d 1499 40 ERC 1970, 25 Envtl. L. Rep. 20,893 OREGON NATURAL RESOURCES COUNCIL; Oregon Guides & PackersAssociation, Inc.; Rogue Flyfishers, Inc.;Waterwatch of Oregon, Inc.; andAmerican Rivers, Inc.,Plaintiffs-Appellants,v.Ernest J. HARRELL, in his official capacity as Commander andDivision Engineer, North Pacific Division, Corps ofEngineers, United States Department of the Army...
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Opinion Resolution Trust Corporation, the receiver for HomeFed Bank, F.S.B., and 405 Hotel Associates appeal the judgment of nonsuit entered against them by the trial court, contending they established sufficient *98 proof of their causes of action for nuisance, trespass, and negligence against Rossmoor Corporation and LHC Associates. 1 We affirm. In July 1972...
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This appeal concerns a district court’s order expunging a lis pendens pursuant to California law. Orange County, California Airport Hotel Associates, a California Limited Partnership (Partnership) appeals from the district court’s order granting the motion of the Hongkong and Shanghai Banking Corporation Limited (Bank) to expunge the Partnership’s lis pendens concerning the Crown Sterling Suite...
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The United States appeals the district court’s grant of summary judgment in favor of the County of San Diego. We review de novo the district court’s grant of summary judgment. Atwood v. Newmont Gold Co., 45 F.3d 1317, 1320 (9th Cir.1995). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. I BACKGROUND General Atomics, a private scientific research f...
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54 F.3d 555 40 ERC 1777, 63 USLW 2756, 25 Envtl.L. Rep. 20,899,26 UCC Rep.Serv.2d 734,Prod.Liab.Rep. (CCH) P 14,216 TAYLOR AG INDUSTRIES, a general partnership; Salt RiverValley Farms, a general partnership; 5J Farms, ageneral partnership, Plaintiffs-Appellants,v.PURE-GRO, a California corporation; Nor Am Chemical Co.;Miles Inc., an Indiana corporation (formerlyMobay); Black & Whit...
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*119 Opinion Plaintiff and appellant Martin G. Laffer brought this action for intentional interference with economic relations, conspiracy, and intentional infliction of emotional distress, against the following defendants and respondents (who are a law firm and two of its partners and an associate attorney): Levinson, Miller, Jacobs & Phillips (hereafter LMJ&P), Steven B. Yankel...
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Opinion At issue in this case is “whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity, fearful of that information’s effect upon its disseminators and its recipients.” (Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 773 [48 L.Ed.2d 346, 365, 96 S.Ct. 1817].) We decide, as did the U...
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Opinion The right to recover workers’ compensation benefits is the sole and exclusive remedy of an employee against an employer for injury arising *1059 out of and in the course of employment. (Lab. Code, §§ 3600, 3602.) 1 We granted review to resolve a conflict in decisions of the Courts of Appeal on the issue whether a person convicted of crime but not incarcerat...
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53 F.3d 970 40 ERC 1851, 25 Envtl. L. Rep. 20,904 MOUNT GRAHAM COALITION, et al., Plaintiffs-Appellees,v.Jack Ward THOMAS, Chief of the United States Forest Service;Michael Espy, Secretary of the Department of Agriculture;Bruce Babbitt, Secretary of the Department of Interior; andMollie Beattie, Director of the United States Fish andWildlife Service, Defendants-Appellants,State of Arizona...
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Opinion The Court of Appeal invalidated, on constitutional grounds, an ordinance of the City of Santa Ana (Santa Ana) which banned “camping” and storage of personal property, including camping equipment, in designated public areas. We granted the petitions for review of Santa Ana and the People to consider whether the ordinance is valid on its face and whether either of the actions involved in th...
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53 F.3d 979 149 L.R.R.M. (BNA) 2138, 63 USLW 2684,130 Lab.Cas. P 11,318,19 Employee Benefits Cas. 1351,Pens. Plan Guide P 23910J LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERNCALIFORNIA; Laborers Vacation-Holiday Trust Fund forNorthern California; Laborers Pension Trust Fund forNorthern California; Laborers Training and Retraining TrustFund for Northern California, Plaintiffs-Appe...
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53 F.3d 1000 63 USLW 2692 Jo Marie AGRIESTI; Glen Arnodo, on behalf of themselves andall others similarly situated, Plaintiffs-Appellants,v.MGM GRAND HOTELS, INC.; Clark County Nevada; MichaelShalmy, in his official capacity as County Managerfor Clark County, Nevada, Defendants-Appellees. No. 94-16472. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 1...
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53 F.3d 984w 1995 A.M.C. 1617, Prod.Liab.Rep. (CCH) P 14,211 SARATOGA FISHING CO., Plaintiff-Appellee,v.MARCO SEATTLE INC., Defendant-Appellant,v.J.M. MARTINAC & CO.; Caterpillar Tractor Co.; SouthwestMarine Hardware, Inc., Defendants.SARATOGA FISHING CO., Plaintiff-Appellant,v.MARCO SEATTLE INC.; Southwest Marine Hardware, Inc.;Caterpillar Tractor Co.; J.M. Martinac & Co.,Defendants-A...
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We must determine the constitutionality of a sentence premised upon hearsay statements contained in a presentence report. I Huekins confessed to having committed a series of bank robberies in the states of Oregon and Washington. Huekins ultimately pled guilty to six counts of unarmed bank robbery in violation of 18 U.S.C. § 2113(a). The Probation Office, in its presentence report (“PSR”), c...
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Opinion The Department of Motor Vehicles (DMV) provides a state-approved form (DS 367A) for reporting chemical test results to the DMV when a police officer administratively suspends a licensee’s driving privilege pursuant to Vehicle Code section 13353.2 (driving with a blood-alcohol concentration (BAC) of 0.08 percent or more). This form, which the officer forwards to the forensics laboratory ...
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Opinion Two attorneys representing one party in litigation brought a defamation action against the opposing party based on statements he made in letters to his counsel and to the district attorney. The trial court found the alleged defamatory statements absolutely privileged and dismissed the attorneys’ complaint after sustaining defendant’s demurrer without leave to amend. We affirm. ...
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Opinion Petitioner is the plaintiff in a superior court action against his former employer, the Regents of the University of California (Regents), and several individual defendants, alleging he was the victim of sexual harassment in violation of the Fair Employment and Housing Act (FEHA). (Gov. Code, § 12900 et seq.) 1 The individual defendants demurred to petitioner’s amended ...
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Opinion Shawnn F., a minor, appeared before the juvenile court on two Welfare and Institutions Code section 602 petitions. After trial, the court found that Shawnn drove without a valid driver’s license and committed a battery. Shawnn claims in his appeal: (1) the juvenile court denied him the right to represent himself, (2) the “rule of convenience” does not apply to the burden of proof upon t...
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Opinion Warren Lemar Green II, also known as Warren Lee Green, appeals from a judgment entered following a jury trial in which he was convicted of unlawful driving of a vehicle (Veh. Code, § 10851, subd. (a), hereafter section 10851(a)) and a court trial in which it was found that he had suffered six prior felony convictions for which he served separate prison terms. He was found not guil...
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53 F.3d 1012 AMERICAN NATIONAL FIRE INSURANCE COMPANY,Plaintiff-Counter-defendant-Appellant,v.Mark C. HUNGERFORD; W. Douglass Smith; Allen V. Hirsch;Robert N. Tidball; Steven L. Pease; Herbert D. Montgomery;Robert S. Leichtner; Robert W. Laversin,Defendants-Counter-claimants-Appellees,andShirley B. Daniels, and Barney and Rachel Milione,Defendants-Appellees,andGreat American Insurance Com...
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Opinion We granted review in this case to determine whether, in making the decision to release an accused from custody on his or her own recognizance (OR) prior to judgment, a court or magistrate may condition such release upon the defendant’s agreement to submit to random drug testing and warrantless search and seizure during that period. Petitioners maintain that the imposition of such ...
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Opinion In October of 1984 Sherrie Spann received an infusion of more than 130 units of blood plasma and platelets as treatment for a life-threatening blood disease known as thrombotic thrombocytopenic purpura (TTP). Although the treatment regimen was apparently successful, Ms. Spann contracted human immunodeficiency virus (HIV) from the infused blood products; she died in May of 1990 fro...
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Opinion Appellant Alfonso Longines appeals from his conviction of sale of marijuana and use of a minor to sell marijuana. (Health & Saf. Code, §§ 11360, subd. (a), 11361, subd. (a).) We affirm. I. Factual Background Napa County Sheriff’s Deputy James Clark was working undercover on a drug investigation in St. Helena. A confidential informant introduced Deputy Clark to a min...
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Opinion Mohammad Haider was convicted by a jury of one count of selling or giving away cocaine. (Health & Saf. Code, § 11352.) The trial court found Haider was previously convicted of possession of a controlled substance. (Health & Saf. Code, §§ 11350, 11370, subds. (a) & (c).) Haider appeals from the judgment. *664 He contends (1) that the trial court erred in sustaining th...
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Hardev Singh appeals a decision of the district court remanding his case to the Board of Immigration Appeals (the Board). We remand to the district court. PROCEEDINGS Singh entered the United States using an alias and was therefore excludable under 8 U.S.C. § 1182(a)(6)(C). He did not contest his excludability but sought asylum under 8 U.S.C. § 1158(a) and withholding of deportati...
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54 F.3d 587 INTERNATIONAL EVANGELICAL CHURCH OF The SOLDIERS OF THECROSS OF CHRIST, Plaintiff-Appellant,v.CHURCH OF the SOLDIERS OF THE CROSS OF CHRIST OF the STATEOF CALIFORNIA; Defendant-Appellee,andRolando Gonzalez, Defendant. Nos. 93-56210, 94-55067. United States Court of Appeals,Ninth Circuit. Argued and Submission Deferred Feb. 10, 1995.Resubmitted Feb. 17, 1995.Decided Apr...
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We revisit a Title VII employment discrimination case which comes back to us after remand for further findings surrounding the plaintiff’s six attempts to transfer out of a hotel laundry and into the hotel’s accounting department. I Odima is a Nigerian-born black man who was employed in the laundry at the Westin La Paloma Resort in Tucson, Arizona. After six unsuccessful attempts to transfer ...
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We consider two questions. First, we examine whether in a suit brought on behalf of a bankrupt common carrier for recovery Of the carrier’s filed rate, the district court must refer the issue of the reasonableness of the filed rate to the Interstate Commerce Commission for an initial determination. Although we have addressed this question before, we revisit it in light of the Supreme Court’s deci...
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Defendants Nevada Bonding Corporation and Douglass Financial Corporation appeal the district court’s remand to the Nevada state district court of state law claims brought by Paul and Mary Curtis. The district court determined that it had subject matter jurisdiction over the Curtises’ claims pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq...
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54 F.3d 579 63 USLW 2771 UNITED STATES of America, Plaintiff-Appellee,v.William WUNSCH; Beverly Wunsch; Teri Lee Sowers, Defendants,andFrank L. Swan, Respondent-Appellant. No. 93-50671. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 3, 1994.Decided April 28, 1995. Carol A. Sobel, ACLU Foundation of Southern California, Los Angeles, CA, for ...
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Carl Eugene Cook appeals his convictions of, and sentence for, bank robbery in violation of 18 U.S.C. § 2113(a). We affirm the judgment of the district court. FACTS At trial, the government established the following: On November 30, 1988, Cook entered the Bank of America at 5700 South Vermont Avenue, Los Angeles, approached a teller, Sam Latkins, and said, “Give me your money,” adding, “I...
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Opinion Debra Candiotti 1 appeals from an order, in a family law custody and visitation proceeding, restraining her from disseminating information to third parties about the background of her ex-husband Thomas’s present wife, Donna. The order spoke both to information obtained during discovery and to information independently acquired. We conclude, under *720 the c...
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Opinion In this case, we uphold a defendant’s waiver of the right to appeal, given in the context of a plea bargain entered into after denial of a suppression motion. Because we conclude the waiver is effective, we shall dismiss the appeal. Factual and Procedural Summary The appellant, Charles K. Berkowitz, appeals after a conviction of attempted grand theft (Pen. Code, §§ 664/487, subd. (a...
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*697 Opinion Rodney Dorsey and Charles S. Hall appeal from jury convictions of second degree robbery and assault with force likely to produce great bodily injury. They contend that the trial court erred in denying a mistrial based on juror misconduct, and by refusing a requested jury instruction on grand theft as a lesser included offense of robbery. In addition, Dorsey claims sentencing erro...
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34 Cal.App.4th 707 (1995) 40 Cal. Rptr.2d 391 THE PEOPLE, Plaintiff and Respondent, v. H. JOSHUA DAYAN, Defendant and Appellant. Docket No. H012265. Court of Appeals of California, Sixth District. April 28, 1995. *708 COUNSEL Philip H. Pennypacker for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Assistant Attorn...
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C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., ante, p. 645....
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53 F.3d 1044 1995 A.M.C. 1740 Kary BRINSON, Plaintiff-Appellant,v.LINDA ROSE JOINT VENTURE; Simonson Enterprises III, Inc.;Thornton VI, Inc.; F/T Linda Rose, Official Number 633219,her engines, tackle, equipment, appurtenances, freights, andcargo, in Rem, Defendants-Appellees. No. 93-36067. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 3, 1994.Decide...
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Raymond E. Andrews appeals the district court’s entry of summary judgment for the Secretary of Health and Human Services, affirming the Secretary’s denial of Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Andrews argues that the Administrative Law Judge improperly rejected the conclusions of the examining psychologist without giv...
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Four members of the Zapon family — a husband and wife and their two elder children (collectively “Zapons”) appeal the denial of them application for an award of attorney’s fees against the United States under the Equal Access to Justice Act (“EAJA,” 28 U.S.C. § 2412(d)(1)(A)). EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government. Instead Section...
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Petition for writ of certiorari to the United States Court of Appeals for the Sixth Circuit granted....
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Petition for writ of certiorari to the United States Court of Appeals for the First Circuit granted....
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Opinion This case comes to us following the trial court’s refusal to reconsider a default judgment entered against appellant. Although this court *742 must give deference to a trial court’s finding of fact (see generally, Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500 [29 Cal.Rptr.2d 903]), we find the error in this case turns on a question of...
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9 Cal.4th 1154 (1995) 892 P.2d 1185 40 Cal. Rptr.2d 442 PELE THOMAS, Plaintiff and Appellant, v. CITY OF RICHMOND et al., Defendants and Respondents. Docket No. S038958. Supreme Court of California. May 1, 1995. *1155 COUNSEL Beatrice Taines and Gail A. Fritschle for Plaintiff and Appellant. Gerald A. Clausen as Amicus Curiae on behalf of Plaintiff and Appellant. *1156 Gibbons, Lees & Edringt...
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Opinion Defendant is imprisoned for life without possibility of parole after a jury trial involving two separate incidents: robberies and first degree felony murder with special circumstances at a Taco Bell restaurant on July 4, 1992, and robbery and attempted premeditated murder at a Gas and Food market on August 11, 1992. On appeal, defendant primarily challenges the joinder of the two ...
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In this case we must decide whether on September 1, 1988, the University of Guam (“the University”) was a “subdivision” of the government of Guam, for purposes of the Longshore and Harbor Workers’ Compensation Act (“LHWCA”), §§ 1, et seq.; 33 U.S.C. §§ 901, et seq. We hold that the University was not a subdivision of Guam within the meaning of 33 U.S.C. § 903(b) at that ti...
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The bankruptcy trustee of debtor Hamilton Taft & Company (Taft) appeals the bankruptcy court’s dismissal of his suit to recover from S & S Company (S & S) payments Taft *287 made to the Internal Revenue Service (IRS) on behalf of S & S. The trustee also appeals the court’s denial of his motion for partial summary judgment. The question presented in both aspects of the appeal is whe...
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Opinion In this case, we are asked to decide whether a nonsettling defendant who opposes a good faith settlement motion is entitled to see the settlement agreement. We conclude a nonsettling defendant has a right to review the agreement notwithstanding the settlors’ protests that the confidential terms and contingencies do not affect the offset. The nonsettling defendant must be given an ...
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Opinion A child walks on a hiking trail in a state park. Suddenly a mountain lion leaps out from the brush and mauls the child. May the child sue the state for his injuries? No. Government Code section 831.2 protects public entities and employees from liability for injuries caused by natural conditions on unimproved public property. Here we hold that mountain lions are part of the na...
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34 Cal.App.4th 766 (1995) 40 Cal. Rptr.2d 633 THE PEOPLE, Plaintiff and Respondent, v. RICKY T. FOSTER, Defendant and Appellant. Docket No. F021241. Court of Appeals of California, Fifth District. May 1, 1995. *768 COUNSEL Jim Fahey, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robe...
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Opinion On January 22, 1989, San Francisco 49’ers quarterback Joe Montana led his team to a 20-16 come-from-behind victory against the Cincinnati Bengals in Super Bowl XXIII. The following day, the San Jose Mercury News (SJMN) ran a front page story chronicling the 49’ers’ feat and depicting four players, including Montana, celebrating on the field. The next year, the 49’ers were even more impr...
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34 Cal.App.4th 986 (1995) 40 Cal. Rptr.2d 727 SANDRA TODD, Plaintiff and Respondent, v. THRIFTY CORPORATION, Defendant and Appellant. Docket No. B081426. Court of Appeals of California, Second District, Division One. April 6, 1995. *987 COUNSEL Haight, Brown & Bonesteel, Rita Gunasekaran and Brian J. Fields for Defendant and Appellant. Ellis & Kingston, Phillip M. Dezen and Howard Gertz for Plain...
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Opinion In this lawsuit, plaintiff challenges the new statutory procedure for contesting parking tickets. Two issues are presented: (1) May the contestant constitutionally be required to pay the parking penalty before an administrative hearing is held? (2) May the contestant lawfully be required to pay a fee of $25 to defray the costs of administrative review? Legal Background ...
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*176 Opinion The issue in this case is whether a misdemeanor hit-and-run charge (which by statute involves property damage only) is subject to disposition by way of a civil compromise. We hold that it is and thus decline to follow two appellate department decisions to the contrary, People v. McWhinney (1988) 206 Cal.App.3d Supp. 8 [254 Cal.Rptr. 205] and ...
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54 F.3d 596 UNITED STATES of America, Plaintiff-Appellee,v.Okwudiri R. ARISHI, aka Remy Arishi, R. Arisi, Defendant-Appellant. No. 94-50088. United States Court of Appeals,Ninth Circuit. Submitted April 7, 1995*.Decided May 4, 1995. Morton H. Boren, Hauptman & Boren, Los Angeles, CA, for defendant-appellant. Dean G. Dunlavey, Asst. U.S. Atty., Los Angeles, CA, ...
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34 Cal.App.4th 1025 (1995) 40 Cal. Rptr.2d 744 JOAN MEIGHAN, Plaintiff and Appellant, v. SAMUEL SHORE et al., Defendants and Respondents. Docket No. B073932. Court of Appeals of California, Second District, Division Four. May 4, 1995. *1029 COUNSEL Howard A. Kapp for Plaintiff and Appellant. Samuel Shore and James R. McGrath for Defendants and Respondents. OPINION EPSTEIN, Acting P.J. In this cas...
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Opinion Defendant Fadelli Concrete Pumping, Inc., was convicted in a court trial of violating Vehicle Code section 35551, which prohibits operating a vehicle over certain statutory weight limits without a permit. The municipal court imposed a fíne of $482. The People appealed, claiming that the applicable fine should have been in excess of $22,000, and that the municipal court had no disc...
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Opinion On October 3, 1988, Aissa Marie Wayne and her friend Roger Luby were brutally assaulted by two men. Four men were arrested, including defendant Thomas Gionis, Wayne’s former husband. At defendant’s trial, the prosecutor argued that Wayne and defendant had been locked in a bitter custody battle over their young daughter, Anastasia, and that defendant was behind the assault. John Lueck, an ...
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*1180 Opinion Penal Code section 2900.5 provides that a convicted person shall receive credit against his sentence for all days spent in custody, including presentence custody (subd. (a)), but “only where the custody to be credited is attributable to proceedings related to the same conduct for which the defendant has been convicted” (subd. (b), italics added...
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10 Cal.4th 1 (1995) 892 P.2d 1224 40 Cal. Rptr.2d 481 THE PEOPLE, Plaintiff and Respondent, v. TRACY DEARL CAIN, Defendant and Appellant. Docket No. S006544. Supreme Court of California. May 4, 1995. *17 COUNSEL Cooper, White & Cooper, Willard P. Norberg and Kathleen A. Callaghan for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney Gene...
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54 F.3d 599 GREGORIO T., By and Through His Guardian Ad Litem JOSE T.,et al., Plaintiffs-Appellees,andCalifornia Association of Catholic Hospitals, et al.,Plaintiffs-Intervenors,v.Pete WILSON, Governor of the State of California, et al.,Defendants-Appellants.LEAGUE OF UNITED LATIN AMERICAN CITIZENS, Plaintiff-Appellee,v.Pete WILSON, Governor of the State of California, et al.,Defendants-Appell...
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53 F.3d 1054 149 L.R.R.M. (BNA) 2193, 63 USLW 2698,130 Lab.Cas. P 11,328 Lawrence MOORE, Plaintiff-Appellant,andWalter F. Whelan; Walter F. Woblan, Jr., Plaintiffs,v.LOCAL 569 OF the INTERNATIONAL BROTHERHOOD OF ELECTRICALWORKERS; Paul Blackwood; Wayne Lovin; Jim Westfall; TomPridemore; Joe Heisler; Dick Smith; Terry Godshalk, etal.; International Brotherhood of Electrical Worker...
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34 Cal.App.4th 1047 (1995) 40 Cal. Rptr.2d 680 WILLIAM ROSSE, Cross-complainant and Respondent, v. DeSOTO CAB COMPANY, Cross-defendant and Appellant. Docket No. A065749. Court of Appeals of California, First District, Division Two. May 4, 1995. *1048 COUNSEL Brekhus, Williams, Wester & Hall and Matthew D. Brekhus for Cross-defendant and Appellant. *1049 Stenberg, Sunseri, Roe & Pickard and Christ...
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Opinion A jury found Byron Summersville guilty of the second degree murder (Pen. Code, 1 § 187, subd. (a)) of Timothy Burke with personal knife use (§ 12022, subd. (b)) (count 1) and assault with a deadly weapon (§ 245, subd. (a)(1)) on Alberto Fox with personal knife use and personal infliction of great bodily injury (§ 12022.7) (count 2). The court sentenced him to twenty-three years to lif...
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Opinion Defendant Swinerton & Walberg Company (Swinerton), a general contractor, appeals the judgment entered against it in a personal injury action brought by plaintiff Ralph Whitford (Whitford). The relevant facts are as follows: On April 28, 1989, Swinerton was the general contractor on the construction of a 52-floor high-rise building in downtown Los Angeles known as the Mitsui B...
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Opinion This case presents the issue whether the coach portion of a motorhome is subject to the provisions of the Song-Beverly Consumer Warranty Act (Civ. Code, 2 § 1790 et seq.). We conclude it is. Facts In May 1990, Julius E. Foreman and his wife, Maxine I. Foreman, purchased a new 1990 Dolphin motorhome from 10,000 R.V. Sales for $56,905.41. National R.V., Inc., (N...
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53 F.3d 1064 149 L.R.R.M. (BNA) 2268, 63 USLW 2690,27 Bankr.Ct.Dec. 309,Bankr. L. Rep. P 76,494 In re RUFENER CONSTRUCTION, INC., Debtor.CARPENTERS HEALTH AND WELFARE TRUST FUNDS FOR CALIFORNIA, etal., Creditors-Appellants,v.Jerome ROBERTSON, Trustee-Appellee. No. 93-16098. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 15, 1994.Decided May 8, 1995. ...
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53 F.3d 1073 34 U.S.P.Q.2d 1720 SEBASTIAN INTERNATIONAL, INC., Plaintiff-Appellee,v.LONGS DRUG STORES CORPORATION, Defendant-Appellant. No. 94-55461. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 7, 1994.Decided May 8, 1995. Ferguson, J., filed concurring opinion. 1 E. Lynn Perry, Mark T. Jansen, Townsend and Townsend K...
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34 Cal.App.4th 1085 (1995) 40 Cal. Rptr.2d 700 BRITZ, INC., et al., Plaintiffs and Appellants, v. ALFA-LAVAL FOOD & DAIRY CO. et al., Defendants and Respondents. Docket No. F020306. Court of Appeals of California, Fifth District. May 8, 1995. *1090 COUNSEL Thomas E. Campagne, Cotkin & Collins, Joan M. Dolinski and Jeffrey L. Garland for Plaintiffs and Appellants. McCormick, Barstow, Shepp...
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Opinion Appellant Kirby Hudgins (hereafter appellant or Hudgins) seeks review of a judgment entered upon stipulated facts presented in connection with the parties’ cross-motions for summary judgment. After a long and tortuous series of proceedings—involving first an order granting appellant’s motion, then a mistaken issuance of an order granting the motion of respondent Neiman Marcus Grou...
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10 Cal.4th 85 (1995) 893 P.2d 1160 40 Cal. Rptr.2d 839 DONNA R. POWERS et al., Plaintiffs and Appellants, v. CITY OF RICHMOND, Defendant and Respondent. Docket No. S039547. Supreme Court of California. May 8, 1995. *89 COUNSEL Pelletreau, Moses, Alderson & Cabral and Alfred A. Cabral for Plaintiffs and Appellants. Malcolm Hunter, City Attorney, and Everett Jenkins, Assistant City Attorney, fo...
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54 F.3d 601 UNITED STATES of America, Plaintiff-Appellee,v.AMWEST SURETY INSURANCE COMPANY; Tito's Bail Bonds,Defendants-Appellants. No. 93-16902. United States Court of Appeals,Ninth Circuit. Submitted March 15, 1995.*Decided May 9, 1995. E. Alan Nunez, Nunez & Bernstein, Fresno, CA, for defendants-appellants. John F. Gisla, Asst. U.S. Atty., Sacramento, CA, ...
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This case, a sequel to General American Life Ins. Co. v. Castonguay, 984 F.2d 1518 (9th Cir.1993), is an action by a creditor of an ERISA trust against the Trustees in their representative capacity. The creditor seeks to enforce a judgment against a portion of the assets of the trust which the Trustees contend were marked by practice as “in re *1079 serve,” to be returned on termination to th...
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Opinion Petitioner Craig Anthony Ross seeks relief on habeas corpus from the judgment of death entered against him in Los Angeles Superior Court, Case No. A365075. On direct appeal, we affirmed that judgment and a judgment of death against the codefendant, Steven Allen Champion. (People v. Champion (1995) 9 Cal.4th 879 [39 Cal.Rptr.2d 547, 891 P.2d 93].) In this matter, we issued an order to show ...
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34 Cal.App.4th 1173 (1995) 40 Cal. Rptr.2d 714 MEIR NAVE, Plaintiff and Appellant, v. ANNETTE TAGGART et al., Defendants and Respondents. Docket No. F019626. Court of Appeals of California, Fifth District. May 9, 1995. *1174 COUNSEL Richard A. Hofman for Plaintiff and Appellant. Anderson, Ablon, Lewis & Gale and Farhad Kazemzadeh for Defendants and Respondents. OPINION BUCKLEY, J. — PROCEDURAL H...
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Opinion The Department of Motor Vehicles (Department) suspended the driver’s license of appellant Gary Lynn Poland based upon a finding that he drove an automobile while possessing a blood-alcohol content (BAC) higher than 0.08 percent. The superior court denied appellant’s petition for a writ of mandate to set aside the suspension. Appellant challenges that order on numerous grounds. We find n...
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34 Cal.App.4th 1242 (1995) 40 Cal. Rptr.2d 576 NANCY J. SCHREIDEL, Plaintiff and Respondent, v. AMERICAN HONDA MOTOR CO., INC., Defendant and Appellant. Docket No. B075776. Court of Appeals of California, Second District, Division Three. April 3, 1995. *1245 COUNSEL Robert W. Beck for Defendant and Appellant. Alan R. Golden for Plaintiff and Respondent. OPINION ALDRICH, J. — INTRODUCTION Defenda...
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Opinion Defendant and appellant Ranger Insurance Company appeals after the trial court denied its motion to set aside a summary *1143 judgment on bail bond forfeiture and to exonerate the bail. We previously issued an opinion affirming the judgment, but Ranger brought to the court’s attention a change in the law, which became effective while the appeal was pending. We granted...
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Opinion In this case, we consider whether a person who possesses illegal drugs prior to ingesting them may be convicted of the offense of possessing those drugs. As will appear, we conclude that the offender may be so convicted despite having ingested the drugs prior to arrest. To rule otherwise would read into the drug possession statutes a “possession when arrested” requirement that wou...
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Opinion Appellant Nai Ian Saelee was convicted of various crimes, including first degree murder. Included in his sentence was a restitution fine under Government Code section 13967 in the amount of $10,000. We publish the brief portion of this opinion which addresses the ex post facto implications of Government Code section 13967 as applied to the circumstances of this case. Ultimately, w...
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Opinion The principal issue presented by this appeal is whether a school district is precluded by section 48907 of the Education Code1 and article I, section 2 of the California Constitution, from requiring, on the ground of educational suitability, that a film arts class instructor have his students delete the profanity2 in a student-produced film. We hold that school authorities may restrain su...
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Zhen Tau Liu appeals the denial of his petition for writ of habeas corpus, in which he sought review of the Board of Immigration Appeals’ (“BIA”) order denying a waiver of excludability and ordering deportation. I. BACKGROUND Liu, a native and citizen of China, entered the United States in 1982, when he was 12 years old. Liu, his parents, three siblings, and both sets of grandparents ...
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John Bennett and others sued the United States pursuant to the Federal Tort Claims Act. They alleged that the United States was negligent in controlling a forest fire that broke out in the Toiyabe National Forest, as a result of which they suffered damages. The district court denied the government’s motion for summary judgment, and this appeal ensued. We affirm for the reasons set forth in our ...
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OPINION Defendant Hector Rene Gomez-Rodriguez is charged by indictment with illegal reentry into the United States after deportation and conviction for an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Now before the court is defendant’s motion to dismiss the indictment on the grounds that his prior conviction is not an aggravated felony within the meaning of 8 U.S.C. §§ 132...
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Opinion Alan Ice, an off-duty Long Beach police officer, shot and nearly killed the driver of another vehicle following a heated verbal dispute over a trivial driving incident. The Long Beach Police Department terminated Ice’s employment on the grounds that Ice unnecessarily engaged in a traffic dispute that ultimately required police response; unnecessarily armed himself; and acted either negl...
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34 Cal.App.4th 1204 (1995) 40 Cal. Rptr.2d 734 HAND REHABILITATION CENTER et al., Petitioners, v. WORKERS' COMPENSATION APPEALS BOARD and VONS COMPANIES, Respondents. Docket No. G016645. Court of Appeals of California, Fourth District, Division Three. April 21, 1995. *1207 COUNSEL O'Flaherty & Belgum and Robert M. Dato for Petitioners. Tharp & Adcock and Charles Adcock for Respondents. OPINION WA...
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OPINION OVERVIEW The debtor appeals an order of the bankruptcy court modifying the automatic stay to allow a claimant to pursue an employment discrimination action against the debtor in the district court. We AFFIRM. FACTS AND PROCEEDINGS BELOW The Santa Clara Fair Association terminated Deirdre Sanders’ employment as assistant bookkeeper in November 1991. On February 3, 1992, Sanders f...
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OPINION Nelson filed a Chapter 7 petition and scheduled $20,000 as exempt under Washington Revenue Code § 6.15.020 (RCW) as it pertains to an IRA. The trustee asserts that the exemptions found in RCW § 6.15.020 im-permissibly connect ERISA and IRA treatment, and are therefore invalid. The bankruptcy court allowed the exemption. We affirm. *586 FACTUAL BACKGROUND The...
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34 Cal.App.4th 1378 (1995) 41 Cal. Rptr.2d 63 ROBERT FLEMING, as Personal Representative, etc., et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. B074475. Court of Appeals of California, Second District, Division Two. May 10, 1995. *1380 COUNSEL Howrey & Simon, J. Michael Hennigan, John L. Amsden and Mary H. Chu for Plaintiffs and App...
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OPINION I The bankruptcy court held that a guaranty executed postpetition was invalid under Section 524 of the Bankruptcy Code because it was based on a discharged debt. The creditor appeals from the summary judgment entered against it. We AFFIRM. II FACTS On November 20, 1991, Getzoff Accountancy Corporation (“GAC”) signed a promissory note and obtained a loan from SafraBank Californ...
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OPINION Before ASHLAND, VOLINN and MEYERS, Bankruptcy Judges. LCO Enterprises leased warehouse space from Lincoln. LCO and Lincoln amended their lease agreement to lessen the amount of the lease payments and the leased space, and to lengthen the lease. LCO assumed the lease in their bankruptcy. The trustee unsuccessfully attempted to recover pre-petition lease payments for the es...
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ORDER In this matter, Ray Harold Edwards, III was indicted, inter alia, for the unlawful possession of firearms in a school zone in violation of 18 U.S.C. § 922(q)(l)(A) (1988 ed., Supp. V.). Edwards filed a motion to dismiss this charge. He argued that section 922(q)(l)(A) was unconstitutional because it violated the Tenth Amendment. The district court denied the motion. Pursuant to a plea a...
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Opinion Petitioner City of Huntington Park (the City) seeks a writ of mandate which directs the respondent court to vacate its order on demurrer, which allows plaintiff Gadi Flores (Flores) to proceed with an action under 42 United States Code Annotated section 1983 (hereafter section 1983). Flores’s action was filed within one year of the time Flores obtained his majority, but more than a year...
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Opinion Introduction Appellant Marilyn Husted Green filed an action against State Center Community College District (respondent or District) for personal injuries. In this appeal we are confronted with the issue of whether the trial court erred in sustaining without leave to amend respondent’s demurrer to appellant’s second amended complaint for personal injuries based upon its finding that t...
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514 U.S. 673 (1995) KANSAS v. COLORADO No. 105, Orig. United States Supreme Court. Argued March 21, 1995. Decided May 15, 1995. ON EXCEPTIONS TO REPORT OF SPECIAL MASTER *674 Rehnquist, C. J., delivered the opinion for a unanimous Court. John B. Draper, Special Assistant Attorney General of Kansas, argued the cause for plaintiff. With him on the briefs were Robert T. Stephan, Attorney General, Jo...
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delivered the opinion of the Court. The Fair Housing Act (FHA or Act) prohibits discrimination in housing against, inter alijos, persons with handicaps.1 Section 807(b)(1) of the Act entirely exempts from the FHA’s compass “any reasonable local, State, or Federal restrictions regarding the maximum number of occupants permitted to occupy a dwelling.” 42 U. S. C. § 3607(b)(1). This case presents the...
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OPINION This case involves the enforceability of dragnet clauses in Arizona. The appellant, creditor Western Farm Credit Bank (“WFCB”), contends the debtors’ personal guarantee of loans made to a partnership and corporation is secured by dragnet clauses in security agreements and mortgages the debtors executed to obtain unrelated personal loans. The bankruptcy court found the dragnet ...
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Lyndall Rhoden brought this action for false arrest and imprisonment against the United States under the Federal Tort Claims Act (“FTCA”) after being detained by the Immigration and Naturalization Service (“INS”) for six days without a hearing upon his return to California from a trip to Jamaica. The district court granted summary judgment for the government. Rhoden appeals. I. Lyndal...
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Lonnie J. Sammaripa, Sr. was convicted of one count of committing assault resulting in serious bodily injury on an Indian reservation in violation of 18 U.S.C. §§ 113(a)(7) and 1153. At his first trial, after the jury was selected and sworn, the government moved for a mistrial alleging that Sammaripa had exercised his peremptories in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712,...
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55 F.3d 443 63 USLW 2771 UNITED STATES of America, Plaintiff-Appellee,v.Pedro Pablo HERNANDEZ, Defendant-Appellant. No. 94-30109. United States Court of Appeals,Ninth Circuit. Submitted Feb. 9, 1995.*Decided May 17, 1995. Arturo Hernandez, San Jose, CA; Santiago E. Juarez, Espanola, NM, for defendant-appellant. Klaus P. Richter, Asst. U.S. Atty., Billings, MT,...
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ORDER The order filed on January 19, 1995, 44 F.3d 836, is amended as follows: on slip opinion page 791, line 5, 44 F.3d at 836 please insert the following text: [Editor’s note: amendments incorporated for purposes of publication]. With this amendment, Simpson’s and Molina’s petitions for rehearing are denied. AMENDED ORDER Donald Lake Simpson (Simpson) and Rodolfo Molina, Jr. (Molina) appealed th...
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ORDER On October 12, 1994, the Court heard arguments on cross-motions for summary judgment. Mr. Gabel represented himself, and Assistant United States Attorney Jay R. Weill represented the IRS. Having considered the arguments of the parties and the papers submitted, the Court hereby GRANTS the IRS’s motion for summary judgment and DENIES Gabel’s summary judgment motion. Gabel’s motion for a Vaugh...
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53 F.3d 1085 Nadja Sahliger SCHEP, Petitioner,v.RESOLUTION TRUST CORPORATION, Respondent. No. 93-70905. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 4, 1995.Decided May 17, 1995. Thomas A. McWatters III, James M. Harris, Sidley & Austin, Los Angeles, CA, for petitioner. Roy A. Jeys, Wilson & Becks and Constance G. Brigham, Los Ange...
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AMENDED OPINION I The bankruptcy court held that in determining whether a judgment hen attached to a debtor’s property under California law, the equity in the property should be determined as of the date the debtor filed her bankruptcy petition. The debtor appealed, contending that the equity should have been determined ón the date the abstract of judgment was recorded. We AFFIRM. II FACTS The fa...
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Opinion Appellants Devin Feagin and Terrill Ross appeal from the judgment entered following their convictions by jury trial of murder (Pen. Code, § 187). As to Feagin, the jury found true the special circumstance allegations of first degree residential robbery and burglary, within the meaning of Penal Code section 190.2, subdivision (a)(17). In addition, both appellants suffered convictions for...
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Coley, an Arizona State prisoner, appeals from the denial of his 28 U.S.C. § 2254 habe-as petition challenging his conviction for conspiracy to commit first degree murder, conspiracy to hinder prosecution, and hindering prosecution. Coley argues that the district court’s ruling that he is procedurally barred from bringing his claims is erroneous. We have jurisdiction over this timely appeal pur...
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This appeal challenges the trial court’s admission of evidence of prior inconsistent statements for use as impeachment. We affirm. We also must decide sentencing guidelines issues concerning adjustments for abuse of a position of trust and for obstruction of justice. A Supreme Court decision which came down after the sentencing requires additional findings on the obstruction of justice issue. ...
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OVERVIEW Diamond Walnut Growers, Inc. petitions for review of a decision and order of the National Labor Relations Board. The Board found that Diamond violated Section 8(a)(1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), by filing a libel suit. The Board cross-petitions for enforcement and asks us summarily to affirm its finding that Diamond violated Section 8(a)(1) and (5) of th...
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Duncan Peder McKenzie has been on death row for two decades. In his third federal habeas petition, he claims inter alia that the state of Montana’s inordinate delay in carrying out his sentence constitutes cruel and unusual punishment, a claim similar to that raised in Texas by Clarence Allen Lackey. See Lackey v. Texas, — U.S. -, 115 S.Ct. 1421, 131 L.Ed.2d 304 (1995) (Stevens, J., respecting the...
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Opinion Introduction This breach of contract action by a policyholder against its insurance company raises the following question. When an employee embezzles funds from an employer over a period of years during which the employer carries insurance against employee dishonesty from the same insurer, may the employer recover up to the insurer’s limit of liability for each year in which the embezzlem...
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34 Cal.App.4th 1527 (1995) 41 Cal. Rptr.2d 104 DONALD L. BUEHLER, Plaintiff and Appellant, v. ROBERT SBARDELLATI, Defendant and Respondent. Docket No. D017900. Court of Appeals of California, Fourth District, Division One. May 19, 1995. *1531 COUNSEL Mazzarella, Dunwoody, Wilson & Petty, Mark C. Mazzarella and Joe B. Stansell for Plaintiff and Appellant. Butz, Lucas, Dunn & Enright, Dougl...
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Opinion The City of Fremont filed a petition for a writ of mandate and administrative mandamus challenging a decision by the San Francisco Bay Area Rapid Transit District (BART) to certify a final environmental impact report (EIR) which was prepared in connection with BART’s plan to extend one of its transit lines. Fremont opposed the project because part of the extension would run on ele...
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Opinion Petitioner Ronald S., the father of the minor Dylan H., has filed a petition for extraordinary relief pursuant to Welfare and Institutions Code section 366.26, subdivision (l) (referred to hereafter as section 366.26). Petitioner raises no substantive issues but requests this court to provide guidance to trial counsel who find no arguable claims to be raised by the petition for writ rel...
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We must decide whether to revisit an issue previously resolved by this court — whether isolated, seasonally dry intrastate waters used only by migratory birds are within the regulatory reach of the Clean Water Act. We also decide whether, in the event of violations of the Act, civil fines are mandatory or discretionary. I Cargill, Inc., the corporate successor to Leslie Salt Co., owns a 153-acre t...
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Gerald Faust and Faust Management Corporation (collectively “Faust”) appeal the district court’s summary judgment in favor .of Faust’s liability insurer, The Travelers (“Travelers”), in Faust’s action seeking reimbursement of certain attorneys’ fees, and other defense costs incurred during Faust’s defense of a lawsuit. Faust contends the district court erred by: (1) finding Travelers *47...
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54 F.3d 613 UNITED STATES of America, Plaintiff-Appellee,v.Gary MEZZANATTO, Defendant-Appellant. No. 92-50261. United States Court of Appeals,Ninth Circuit. Decided May 22, 1995. On Remand from the United States Supreme Court. Before: WALLACE, Chief Judge, SNEED and HALL, Circuit Judges. ORDER 1 Pursuant to the Supreme Court's decision in...
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Glenn Demon Carr was convicted of possession with intent to distribute 66.92 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1). Because Carr had been convicted of two prior felony controlled substance offenses, the district court enhanced his base offense level to 34 under the career offender *39 provision of the United States Sentencing Guidelines, § 4B1.1. The adjustment was based o...
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Plaintiffs-appellants Emilio Figueroa, Jack Andrews, and The Export Group (collectively “Export Group”) appeal from the district court’s grant of relief from a default judgment it had entered against defendant-appel-lee, the Mexican Coffee Institute or Instituto Mexicano del Cafe (“INMECAFE”), in Export Group’s diversity action alleging, inter alia, interference with contract rights....
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Opinion In January 1989, Residents for Adequate Water and respondents Michael E. Sweeney and Oliver L. Sause obtained a writ of mandate halting the connection of new residential water service by appellant Redwood Valley County Water District. In July 1993, the district unsuccessfully moved to dissolve the writ of mandate and to set aside the subsequent judgment. (Code Civ. Proc., § 473.) ...
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Opinion In this dog attack case we conclude the injured plaintiff raised a triable issue whether defendant landlord knew about the vicious propensities of his tenant’s two rottweilers. The landlord filed a declaration denying he possessed this knowledge. We hold plaintiff introduced sufficient evidence casting doubt on the landlord’s credibility to create a triable issue whether he did kn...
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Opinion The California Horse Racing Board (Board) upheld the exclusion of a gambler from all racetracks in California, although his *1828 misdemeanor bookmaking conviction was by plea of nolo contendere and was expunged after a period of probation. The superior court denied the gambler relief on other grounds, but we conclude the Board acted properly in excluding him as a con...
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Opinion The trial court dismissed plaintiff Timothy P. Peltier’s personal injury suit for failure to bring the case to trial within three years (Code Civ. Proc., § 583.410; all further undesignated section references are to this code). He moved for relief under section 473, asserting that his attorney’s decision not to move the case forward until plaintiff’s condition had stabilized const...
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55 F.3d 474 149 L.R.R.M. (BNA) 2391, 130 Lab.Cas. P 11,339 BEACH AIR CONDITIONING AND HEATING, INC.,Plaintiff-Counter-Defendant-Appellee,v.SHEET METAL WORKERS INTERNATIONAL ASSOCIATION, LOCAL UNIONNO. 102, Defendant-Counter-Claimant-Appellant. No. 93-55620. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1, 1994.Decided May 23, 1995. Ray Van ...
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54 F.3d 1422 32 Fed.R.Serv.3d 840 Lawrence EPSTEIN; John Linder; Jane Rockford, as trusteeof the Michael J. Rockford Trust; Maurice Karlin;Ruth Karlin; Beth Ann Karlin; Bert P.Karlin; Walter Minton, Plaintiffs,v.MCA, INC.; Matsushita Acquisition Corporation; MatsushitaElectric Industrial Co., Ltd.; Matsushita HoldingCorporation; Lew Wasserman; Sidney J.Sheinberg, Defendant-Appel...
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Opinion Appellant Joseph Bellizzi contends the trial court erred in denying his motion to suppress evidence, in this prosecution for possession of cocaine for purposes of sale. (Health & Saf. Code, § 11351.) We conclude the trial court wrongly found exigent circumstances supported the legality of the warrantless search. We, therefore, reverse. I. Facts and Procedural History App...
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*3 Opinion Jesse Barnett was convicted of second degree burglary (Pen. Code, § 459) and theft of items with a value in excess of $400. (Pen. Code, § 487.1.) An allegation that Barnett had suffered a prior conviction was found true. The trial court sentenced Barnett to a total of three years in state prison, further imposing on him a $200 restitution fine. The court, however, then...
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Opinion We hold, in the published portion of this opinion, that a potential creditor with actual notice of the pendency of estate proceedings cannot excuse the untimely filing of a creditor’s claim on the ground that the administrator failed to send a formal notice of administration of the estate, as required by Probate Code section 9050. 1 Daniel S. Venturi (hereinafter appe...
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Defendant, Brian Hill, entered a conditional guilty plea to various weapons offenses. He appeals on the grounds' that the district court erred by denying a motion to suppress evidence seized at his home. We reverse and remand for further proceedings. I. Probable Cause Hill first contends the warrant authorizing the search of his home was not supported by probable cause. The affidavit in sup...
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Julieta Vitug Biggs petitions for review of a Board of Immigration Appeals (BIA) decision finding her deportable and denying her application for discretionary relief. Although we agree that Biggs is deportable, we find that the BIA abused its discretion in evaluating her claim for relief from deportation. Accordingly, we remand to the BIA to allow Biggs to supplement her medical evidence and to...
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Opinion The trial court granted a judgment on the pleadings, declaring certain ordinances of the City of Escondido (the City) to be facially valid, in the City’s complaint in intervention in an underlying action *36 between plaintiff Mobilepark West Homeowners Association (the residents) against their landlord, Escondido Mobilepark West and Charles E. Jacobson (the owners). T...
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Opinion Appellant Maurice Desi Font was tried with codefendants Glover and Hines for second degree robbery (Pen. Code, 1 § 211). A jury convicted appellant and found true a firearm allegation (§ 12022, subd. (a)(1)) but was unable to reach verdicts regarding codefendants Glover and Hines. 2 Appellant contends the prosecutor committed Griffin (Griffin v. ...
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On April 21, 1989, California Sansome Company and Polk Market Company (“San-some”) filed an action against United States Gypsum Company and W.R. Grace & Company (“U.S. Gypsum”) claiming asbestos-related damages in two of their buildings located in San Francisco, California. The action was brought pursuant to federal diversity jurisdiction, 28 U.S.C. § 1382. U.S. Gypsum manufactured the asbestos...
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Gordon Finlay (Finlay) appeals his conviction of two conspiracies to defraud the United States in violation of 18 U.S.C. § 371, the first occurring between January and October of 1987 by transporting nuclear materials in violation of law and in this connection falsifying records for submission to the Nuclear Regulatory Commission (the NRC); the second, a conspiracy between August 1987 and Novembe...
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Opinion Plaintiffs and appellants Operating Engineers Pension Trust, Operating Engineers Health and Welfare Fund, Operating Engineers Vacation-Holiday Savings Trust and Operating Engineers Training Trust (the Trusts) appeal a judgment following a grant of summary judgment in favor of defendant and respondent Insurance Company of the West (West). The Trusts seek to collect on certain ...
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Opinion Defendants, FSR Brokerage, Inc., doing business as Fred Sands Realtors (Sands), Prichett Realty Corp. (Prichett), and Gary Marquis, seek a writ of mandate to compel the respondent court to enter summary judgment on consolidated personal injury and wrongful death complaints of 36 plaintiffs. The consolidated complaints were filed as a result of the collapse of a balcony on an oceanfront re...
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Opinion This is an appeal by a custodial parent, wife Vera Roberts Perez, from an order reducing money in arrears and waiving interest due as to the child support obligation of the absentee parent, husband Richard Joseph Perez. Since the court acted in excess of its jurisdiction in reducing from $5,000 to $2,000 the balance owed and in eliminating the statutorily required interest on the unpaid...
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Opinion by Judge REINHARDT; Concurrence by Judge KLEINFELD. It has been almost fifteen years since Richard Louis Arnold Phillips was convicted of murder and first sentenced to death, and ten years since the state supreme court affirmed his conviction and vacated his sentence. The question before us is whether we should now review the constitutionality of Phillips’ conviction or require him to con...
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James F. Boccardo and Lorraine Y. Boc-cardo appeal from a judgment of the United States Tax Court denying them a deduction. We reverse and direct the entry of judgment for the Boceardos. FACTS James Boccardo is a partner in a law firm (the firm), whose practice consists primarily of personal injury cases. During the tax years in question, 1982 and 1983, there were twenty lawyers i...
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56 F.3d 1039 63 USLW 2786 Steven Albert MAHER and Rebecca Maher, husband and wife,Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 93-16398. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 16, 1994.Decided May 26, 1995. Sheldon Lazarow, Lazarow & Lazarow, Tucson, AZ, for plaintiffs-appellants. Roger L. Duncan...
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We granted en banc review of this case to consider whether to overrule our decision in United States v. Harvey, 701 F.2d 800, 803-04 (9th Cir.1983), which held that the Fourth Amendment requires that authorities arrest a suspect prior to a non-eonsen-sual taking of a sample of the suspect s blood without a warrant. In the case we review, a three-judge panel reversed Daniel Chapel’s conviction f...
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The United States appeals the district court’s ruling on the constitutionality of John George Sahhar’s confinement under 18 U.S.C. § 4246. That statute provides for the continued hospitalization of a person who has been charged with a federal offense but not tried because of a continuing mental disease or defect. The district court ruled § 4246 is unconstitutional as applied to a defendant who ha...
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I F.H. and her son K.W. appeal a district court order granting St. Paul Fire and Marine Insurance Company summary judgment in this declaratory judgment action. The district court held that an insurance policy St. Paul issued to Big Brothers and Big Sisters of Alaska (BB/BS) does not provide coverage to BB/BS executive director Kenneth McQuade for damages arising out of McQuade’s sexual abu...
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What constitutes “excusable neglect” when the appellant fails to file a notice of appeal on time? We must interpret what, the Supreme Court did not say in a recent ease. I . In 1982, the Dale C. Eckert Corporation (“Eckert”), a general contractor, entered into a construction contract with Orange Tree *1427 Associates, a developer. Pursuant to that contract, Eck...
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Opinion Lisa A. Jensen sued BMW of North America, Inc., for willful violation of the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.) 1 and the Magnuson-Moss Warranty Act (15 U.S.C. § 2301 et seq.). She alleged the low-mileage 1988 BMW she leased in 1989 was subject to the manufacturer’s new car warranty, but BMW refused to replace the vehicle or refund her money ...
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Sup. Ct. Ga. Certiorari denied....
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Opinion Nadine S. appeals from the order terminating her parental rights (Welf. & Inst. Code, § 366.26) to Pedro N. and Margie N.1 Claiming her children came within the ambit of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), she contends respondent Fresno County Department of Social Services (Department) gave inadequate notice to the proper authorities as required by the ICWA. Co...
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Opinion In this habeas corpus proceeding we review a decision of the Board of Prison Terms rescinding a life prisoner’s parole. *163 I. Background A. Petitioner Chester Johnson was convicted of the first degree murders of Loren Silliphant and Dr. Glen Olsen in 1970 and was sentenced to death. The sentence was later modified to life imprisonment. Those familiar...
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Opinion Joseph Levesque appeals his convictions of violating Penal Code section 288, subdivision (a), 1 (count one) and section 647.6 (count two). The court also found true allegations of a prior section 288, subdivision (a) conviction and prior felony convictions for rape and burglary. Pursuant to section 667.51, subdivision (d) the court sentenced appellant to imprisonment fo...
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Opinion State Farm Mutual Automobile Insurance Company (State Farm) appeals from an order granting a motion by St. Paul Fire and Marine Insurance Company (St. Paul) to tax costs incurred by State Farm as the successful appellant in a prior appeal (Ramirez v. State Farm * (Cal.App.)), and from a subsequent judgment directing in part that State Farm should recover its costs entirely from on...
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Opinion Defendant, Byron James Wilder, appeals his dmg conviction and findings concerning enhancements imposed because of his substantial prior record of criminality. In the published portion of this opinion, we conclude that the trial court’s failure to advise defendant, who represented himself at trial, of the disadvantages of self-representation where the waiver of counsel was voluntar...
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Memorial Rehabilitation Hospital of Santa Barbara (“Memorial”) challenges the conclusion of the Secretary of Health and Human Services (“the Secretary”) that it does not qualify as a “new hospital,” exempt from ceilings on hospital rates by regulations enacted under the Tax Equity and Fiscal Responsibility Act of 1982 (“TEFRA”), 42 U.S.C. § 1395. The district court granted summary judgment upholdi...
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Plaintiffs-appellants are “cottage couples” employed by Nevada to supervise children who are wards of the state. “Cottage couples” or “cottage parents” are a husband- and-wife team living in a simulated home environment and supervising up to ten abused or neglected children. Twenty-two cottage couples sued Nevada under the federal Fair Labor Standards Act (FLSA), 29 U.S.C. § 201 et seq., seekin...
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55 F.3d 1430 63 USLW 2773 STANDING COMMITTEE ON DISCIPLINE OF the UNITED STATESDISTRICT COURT FOR the CENTRAL DISTRICT OFCALIFORNIA, Plaintiff-Appellee,v.Stephen YAGMAN, Defendant-Appellant. No. 94-55918. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1994.Decided May 30, 1995. Ramsey Clark, Lawrence W. Schilling, New York City, Marion R. ...
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ORDER The opinion filed September 6, 1994, 33 F.3d 1210, is amended as follows: *42On 33 F.3d at 1220, please add the following footnote at the end of the text and renumber the footnotes accordingly: Our adoption of this categorical approach is also compelled by the Supreme Court’s recent decision in Department of Revenue of Montana v. Kurth Ranch, — U.S. -, 114 S.Ct. 1937, 128 L.Ed.2d 767 (1994)....
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56 F.3d 1053w 75 A.F.T.R.2d 95-2615, 95-1 USTC P 50,295 WWSM INVESTORS, dba Advanced Plastics Engineering Co.,Plaintiff-Counter-claimant-Defendant-Appellant,v.UNITED STATES of America,Defendant-Counter-claimant-Plaintiff-Appellee. No. 93-17072. United States Court of Appeals,Ninth Circuit. Argued and Submission Deferred April 4, 1995.Resubmitted May 17, 1995.Decided May 31, 19...
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56 F.3d 1055 Pens. Plan Guide P 23910OAnnie M. BOLTON, Plaintiff-Appellee,v.CONSTRUCTION LABORERS' PENSION TRUST FOR SOUTHERNCALIFORNIA; Louie Bravo; Donna Davidson; RogerJaska; Robert Kruse; Armando Lopez;William Middleton, et al.,Defendants-Appellants.Annie M. BOLTON, Plaintiff-Appellee,v.CONSTRUCTION LABORERS' PENSION TRUST FOR SOUTHERNCALIFORNIA; Louie Bravo; Donna Davidson; Roger ...
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The defendant pled guilty to several counts of making false statements in loan applications in violation of 18 U.S.C. § 1014. The loan applications concerned loans secured by deeds of trust on four separate residences. The defendant defaulted on the loans, and the lender, Home Savings of America, foreclosed the deeds of trust. The district court sentenced the defendant to twelve months and one ...
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55 F.3d 1466 40 ERC 1795, 25 Envtl. L. Rep. 21,247 SYSTECH ENVIRONMENTAL CORPORATION, Petitioner,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent.NATIONAL CEMENT COMPANY OF CALIFORNIA, INC., Petitioner,v.UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Respondent. Nos. 94-70419, 94-70631, 94-70422 and 94-70483. United States Court of Appeals,Ninth Circuit. Argued and S...
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Opinion A party in a personal injury action intends to have her treating doctor testify as to her injuries, treatment, and prognosis. Must she provide opposing counsel an expert witness declaration required by Code of Civil Procedure section 2034, subdivision (a)(2) for retained experts? 1 No. A treating doctor is not a retained expert for purposes of section 2034. Pl...
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35 Cal.App.4th 775 (1995) 41 Cal. Rptr.2d 534 In re ROSALIO S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ROSALIO S., Defendant and Appellant. Docket No. D021701. Court of Appeals of California, Fourth District, Division One. June 1, 1995. *776 COUNSEL Lynne G. McGinnis, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. L...
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Opinion Ronald L. Saathoff appeals from a judgment in favor of the City of San Diego et al., (hereafter the City or City Council) arising from the trial court’s denial of his petition for writ of mandate. Saathoff asserted in his writ of mandate petition that the City Council’s passage of a resolution based on a majority vote, awarding a paramedic system management contract to American Me...
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Opinion I. Introduction The complaint alleged a conspiracy between an insurer and a psychiatrist to deprive the plaintiff, Robert A. Villa, of disability benefits. In November *736 1993, the trial court entered a summary judgment in favor of defendant, Dr. Glen McFerren, a psychiatrist. Plaintiff appealed. We conclude defendant, in his moving papers, did not meet his bur...
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Opinion This appeal arises from the construction of the Villa Mallorcas condominium project (Project) in the late 1970’s. The ensuing construction defect litigation began in 1984 and continued in various forms over the next decade, culminating in this appeal. 2 The remaining parties include appellant Maryland Casualty Company (Maryland), the primary liability insurer for the Pr...
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Opinion Robert Francis Corey appeals from the judgment (order granting probation) entered following a jury trial which resulted in his conviction of selling an unqualified, unexempt security (Corp. Code, § 25110) and selling a security by means of false statements or omissions (Corp. Code, § 25401). 1 Appellant contends that the trial court committed several instructional error...
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Opinion We granted review in this matter to consider the holding of the Court of Appeal that the Unfair Insurance Practices Act (Ins. Code, § 790 et seq.) does not supersede or displace insurance-industry-related claims under the Cartwright Act (Bus. & Prof. Code, §§ 16720-16770) and/or the Unfair Competition Act (Bus. & Prof. Code, § 17200 et seq.) Simply stated, the issue is whether life insura...
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Opinion In this case we examine the “provocative act” (or Washington-Gilbert) theory of murder, under which a person may be liable for the death of an accomplice. (People v. Washington (1965) 62 Cal.2d 777 [44 Cal.Rptr. 442, 402 P.2d 130], People v. Gilbert (1965) 62 Cal.2d 690 [47 Cal.Rptr. 909, 408 P.2d 365].) A jury convicted defen...
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Johnaton Sampson George appeals his conviction and sentence following a jury trial on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). George contends that the district court erred in (1) denying his motion for mistrial following the admission of certain hearsay evidence, (2) denying his motion for a new trial on the basis of alleged juror misconduct i...
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58 F.3d 1355 Francisca Elena ORTEGA de ROBLES, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 93-70461. United States Court of Appeals,Ninth Circuit. Argued and Submitted Jan. 11, 1995.Decided June 2, 1995. Raul M. Montes (Armando M. Montes and Gilbert M. Montes with him, on the brief) of Montes Montes & Montes, San Diego, CA, for petitioner. ...
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Opinion In this appeal, Voeurn O. contends there is insufficient evidence to sustain the juvenile court’s finding he gave false information to a police officer within the meaning of Penal Code section 148.9, subdivision (a). 1 He also maintains section 148.9 is unconstitutionally vague and he was singled out for prosecution because of his suspected gang status. We find Voeurn’s...
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*803 Opinion Petitioner Steve J. seeks extraordinary writ review (Welf. & Inst. Code, 1 § 366.26, subd. (l); Cal. Rules of Court, rule 39.1B) from respondent court’s order that a section 366.26 hearing be held June 13, 1995. He contends he received inadequate services for the purpose of reunifying with his dependent child, Jason J. On review, we find respondent did not...
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C. A. 6th Cir. Certiorari granted, judgment vacated-, and case remanded for further consideration in light of North Star Steel Co. v. Thomas, ante, p. 29....
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*566Opinion Appellant Vue Pao Yang was insured by respondent State Farm Mutual Automobile Insurance Company. State Farm brought a declaratory relief action against Yang and sought an adjudication that Yang was not covered by the “Uninsured Motor Vehicle” and “Medical Payments” coverages of his State Farm automobile insurance policy for damages he suffered as a result of being shot by a gunman who...
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Opinion Plaintiffs appeal from a summary judgment disposing of their claims against defendant employer for wrongful termination of employment. They also seek reversal of an order compelling them to return certain documents to defendant. We affirm the judgment and the order. *626 Background In 1983, plaintiffs Kendra and Ronald Camp, husband and wife, were indicted on se...
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Opinion The California Department of Motor Vehicles (DMV) and its director, Frank S. Zolin, appeal a judgment granting respondents a permanent injunction requiring the DMV to issue new and renewal vehicle registrations and renewal drivers’ licenses and identification (ID) cards to aliens who are ineligible for a Social Security account number (SSN). 1 Facts With the exce...
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Respondent-Appellant’s motion for stay pending appeal is DENIED. 1 This case is expedited, and a briefing schedule will be issued shortly. Judge O’SCANNLAIN would grant the motion for stay. I respectfully disagree that we should order the release pending appeal of a double murderer who was sentenced to death by a jury of his peers and whose conviction was affirmed in a lengthy decision by...
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56 F.3d 46 Jose Ramon MORALES, aka: Pablo Jose Ramon Morales,Petitioner-Appellant,v.CALIFORNIA DEPARTMENT OF CORRECTIONS, Director; E.R.Meyers, Warden; Attorney General of the State ofCalifornia; Board of Prison Terms,Respondents-Appellees. No. 92-56262. United States Court of Appeals,Ninth Circuit. June 5, 1995. On Remand from the United States Supreme Court. ...
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56 F.3d 1087 63 USLW 2792 UNITED STATES of America, Plaintiff-Appellee,v.Maria Cecilia BARONA, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Janet MARTINEZ, aka: Luz Janet Martinez & Luz JanethMartinez, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Brian BENNETT, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Mario ERNESTO ...
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In all respects save one, I concur in the judgment. The Court of Appeal was correct to uphold the second *317degree robbery convictions of defendants Clifton C. Wims and Wilbert Ford under Penal Code sections 211 and 212.5 and also the sentence enhancement of defendant Ford for a prior serious felony conviction under Penal Code sections 667, subdivision (a), and 1192.7, subdivision (c). As to the ...
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Opinion Linda A. Dresser (formerly Linda D. Brown) appeals an order denying her request to modify spousal support. She contends the superior court erred in concluding it lacked jurisdiction to extend the duration of Richard E. Brown’s spousal support obligation beyond the 60-month limit set forth in the judgment of dissolution incorporating the parties’ marital settlement agreement (Agreement). We...
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OPINION I The bankruptcy court held that a state agency’s claim for reimbursement of workers’ compensation benefits paid to the debt- or’s employee was nondischargeable as an excise tax. We REVERSE. II FACTS Karen Camilli (“Camilli”) owned a janitorial business in Arizona called Final Touch. Arizona law required Camilli to provide workers’ compensation benefits for her employees, using either Stat...
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OVERVIEW Frank Fuentes-Mendoza (“Fuentes”) was arrested along with several others for selling a large quantity of marijuana to a confidential informant working under the direction of undercover Drug Enforcement Administration agents. Fuentes pled guilty to one count of conspiracy to possess with intent to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846. He was sentenced to 78 mon...
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Gina Shaw appeals the district court’s dismissal of her civil rights action against the City of Los Angeles and former and current members of the Los Angeles City Attorney’s Office. Shaw, who is African-American, claims that the defendants violated her equal protection rights by exercising a peremptory challenge to remove her from a venire panel on the basis of her race. We have jurisdiction and ...
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Frank R. Alber appeals his guilty plea conviction and sentence. Alber pleaded guilty to one count of mailing a threatening communication, in violation of 18 U.S.C. § 876, and one count of conspiring to mail a threatening communication, in violation of 18 U.S.C. § 371. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part and remand in part. I. FACTS AND PRIOR PROCEEDINGS In Nov...
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During jury deliberations in appellant Raymond F. Riley’s state court trial for sexual assault and first-degree kidnapping, the jury asked the court to read back part of the trial testimony. The trial judge was not available to respond to the request. In his absence, and without any input from the judge, the jury was assembled in the courtroom with the defendant Riley, his lawyer, and the prosecu...
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Everett Todd Faber sued the United States in tort for its failure to warn of the existence of diving hazards in a national park. The district court granted summary judgment in favor of the United States on the basis that the discretionary function exception to the Federal Tort Claims Act (“FTCA”) rendered the court without subject matter jurisdiction to adjudicate Faber’s claim. Faber appealed. W...
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Opinion In a matter involving issues of insurance coverage, plaintiff and appellant Truck Insurance Exchange (Truck) appeals from the summary judgment entered in favor of defendant and respondent Amoco Corporation (Amoco) in a declaratory relief action alleging Amoco to be the “de facto” insurer for Cyprus Amax Minerals Company (Cyprus), a former wholly owned subsidiary, based on the pare...
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OPINION This appeal arises from the partial granting of a motion for summary judgment declaring a state court judgment for legal malpractice to be nondischargeable pursuant to § 523(a)(6) 1 . The debtor appeals. We REVERSE and REMAND. I. FACTS 2 The appellee, Chris Okoye (“Okoye”) was terminated from his employment as a senior accountant in Los Angeles, Ca...
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OVERVIEW United Health Care Benefits Trust (“UHBT”) provides health benefit plans to small businesses. The State of California is trying to regulate UHBT as an insurance company. Dean Moideen, a trustee of UHBT, and others filed this action against the California Insurance Commissioner, contending that the federal Employee Retirement Income Security Act (ERISA) preempts the California Insurance Co...
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Byron Gizoni appeals after a jury trial in which the jury found that he was not a “seaman” under the Jones Act, 46 App. U.S.C. § 688. Gizoni argues that the trial court erred in instructing the jury on the definition of “seaman.” We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse and remand. I FACTS Byron Gizoni worked for Southwest Marine as a shore-based rigger and r...
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We must decide whether the Internal Revenue Service has demonstrated that certain appraisal documents in its possession are “return information,” and thus exempt from disclosure under the Freedom of Information Act. I In 1986, in conjunction with a collection action against a taxpayer, the Internal Revenue Service (“IRS”) seized Indian jewelry and other objects. After the taxpayer pleaded gui...
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Dennis Blackstone appeals his conviction for possession of a firearm by a felon, 18 U.S.C. § 922(g)(1). He claims the district court erred in 1) admitting overly prejudicial evidence of drug paraphernalia, expert testimony connecting guns and drugs, and the nature of his prior conviction; 2) refusing to allow surrebuttal testimony; and 3) refusing to suppress evidence of the search of his truck a...
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We must decide whether an arbitrator exceeded his authority or violated public policy by ordering a make-whole remedy that extended beyond the expiration of a collective bargaining agreement. I The facts surrounding this controversy were not disputed. Before it ceased operating its Union City, California plant on November 1, 1986, McKesson Chemical Company (“McKesson”), a division of ...
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56 F.3d 1147 23 Media L. Rep. 1929 Earle A. PARTINGTON, Plaintiff-Appellant,v.Vincent T. BUGLIOSI; Bruce B. Henderson; W.W. Norton &Company, Inc.; Random House Inc.; CBS Inc.; Green EpsteinProductions, Inc.; Columbia Pictures Television, Inc.;Matthew O'Connor; Tommy L. Wallace; Jim Green; AlanEpstein; and James Henderson, Defendants-Appellees. No. 94-15094. United Sta...
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57 F.3d 712 63 USLW 2779, 130 Lab.Cas. P 57,917,19 Employee Benefits Cas. 1409,2 Wage & Hour Cas.2d (BNA) 1291,Pens. Plan Guide P 23913H DILLINGHAM CONSTRUCTION N.A., INC., a CaliforniaCorporation; Manuel J. Arceo, dba Sound SystemsMedia, Plaintiffs-Appellants,v.COUNTY OF SONOMA; Division of Labor Standards Enforcement;Department of Industrial Relations, Division ofApprenticeship St...
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56 F.3d 979 40 ERC 1801, 63 USLW 2777, 25 Envtl.L. Rep. 21,250 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.Opinion Filed Dec. 10, 1993.Opinion Withdrawn June 7, 1995.Decided June 7, 1995...
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The United States appeals the district court’s judgment after a bench trial in favor of Dr. William Chin and his spouse Cecily Chin in Dr. Chin’s action for a refund of federal income taxes for the 1985 tax year. The government claims the district court clearly erred in finding that Chin was an independent contractor, rather than an employee, of the Agency for International Development (“AID”)....
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58 F.3d 404 40 Cont.Cas.Fed. (CCH) P 76,790 UNITED STATES, ex rel., Plaintiff-Appellee,andAra B. Papazian, and Nabil D. Hanna, Plaintiffs-Appellants,v.AMERICAN PRODUCTION INDUSTRIES, INC., dba Paramount CitrusAssociation, fka Paramount Citrus Association;Mohammed Ali Karbalai; Elvin Wood, Defendants. No. 93-56672. United States Court of Appeals,Ninth Circuit. Argued and Submit...
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57 F.3d 746 PAM TRANSPORT, an Arkansas corporation; Andrew Mertyris,Plaintiffs-Appellants,v.FREIGHTLINER CORPORATION, a Delaware corporation; TRW RossGear, a division of TRW, Inc., an Ohio corporation; JohnDoes I through X; Black Corporations I through X; WhitePartnerships I through X, Defendants-Appellees. No. 92-16059. United States Court of Appeals,Ninth Circuit. Argued and...
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57 F.3d 747 68 Fair Empl.Prac.Cas. (BNA) 119, 64 USLW 2046 Arthur J. MIER, Plaintiff-Appellant,v.Donald L. OWENS, in his official capacity as AdjutantGeneral of the Arizona State Army National Guard;Michael P.W. Stone, in his officialcapacity as Secretary of theArmy, Defendants-Appellees. No. 93-15923. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, ...
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Defendant-Appellant Frederick Yazzie appeals from a jury verdict finding him guilty on fourteen counts of sexual abuse on and abusive sexual contact with his nine-year-old stepson (the victim). In his appeal, we consider several evidentiary rulings made by the district court, which Yazzie contends were erroneous and violated his rights under the Confrontation Clause and his right to a fair tria...
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We must decide whether physicians who were officers of a corporation operating a clinic are also employees of the corporation for federal income tax purposes. I Idaho Ambucare Center (“Ambucare”), an Idaho corporation, provides an out-patient surgery facility and support staff for physicians in the Nampa, Idaho area. Incorporated in 1982, Ambucare was initially owned by nine physician...
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Opinion The Court of Appeal reversed murder and conspiracy convictions entered against defendants Lance Christopher (Chris) Badgett and John Badgett on the ground the trial court erred in denying their motion to exclude the assertedly coerced testimony of the prime prosecution witness. We reverse the judgment of the Court of Appeal. Although defendants had standing under due process principles to...
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Opinion Plaintiff Rafael Radovich appeals from a judgment, for defendants William F. Locke-Paddon (an attorney) and the law firm by which Locke-Paddon was employed, based on summary adjudication of issues in consolidated civil actions. The trial court was called upon to answer two questions of law: (1) Did Locke-Paddon or the law firm, in preparing a will for a client who died withou...
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Opinion Statement of the Case and Facts Wine World, Inc. (Wine World) is a producer and supplier of wines, including Beringer, Napa Ridge, Chateau Souverain and Meridian. Wine World distributes its wines through a network of independent distributors located throughout the United States. Brand Wines & Spirits, Inc. (Brand) and Varni Bros. Corporation (Varni) are former distributors fo...
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Charles D. Marshall, Warden of Pelican Bay State Prison, appeals the district court’s grant of Cedric Roshwan Harmon’s habeas corpus petition. Harmon challenges two of the twelve counts of which he was convicted because no instruction was given to the jury defining the elements of the offense constituting those two counts. Marshall concedes that the failure to instruct amounts to constitutional...
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We consider here claims that the government has some obligation to make available a discretionary plea agreement to a defendant who: (a) fails to meet fair and uniformly applied time requirements; and (b) in any event, refuses to unconditionally accept the government’s offer. We hold the government has no such obligation. Defendant Martin Estrada-Plata (“Estrada”) was convicted and sentenced to...
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Dissenting: The majority recognizes that under Supreme Court and Ninth Circuit precedent we must only look to what the jury actually decided in determining an essential element of a crime not what we as judges believe the jury would have decided if it had been properly instructed. See Carella v. California, 491 U.S. 263, 268-69, 109 S.Ct. 2419, 2422, 105 L.Ed.2d 218 (1989) (Scalia, J., concurring)...
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This appeal requires us to decide the constitutionality of a stop and detention at a temporary immigration checkpoint that is open for up to 10 days each month and is put into operation in part based on intelligence about the movement of drugs across the border. Guadalupe Soto-Camacho was stopped at the Jacumba Checkpoint, two miles north of the United States-Mexiean border on the westbound lan...
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Manning appeals from his conviction following a jury trial and life sentence for murder by mail bomb, in violation of 18 U.S.C. §§ 1716(a) and 2. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm the conviction and life sentence, but remand for the court to correct Manning’s parole eligibility. I On July 14, 1980, a cardboard box was mailed to the of...
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delivered the opinion of the Court. Section 22 of the Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), 44 Stat. 1437, as amended, 33 U. S. C. § 922, allows for modification of a disability award *293“on the ground of a change in conditions or because of a mistake in a determination of fact.” The question in this case is whether a party may seek modification on the ground of “change i...
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with whom Justice Ginsburg joins, dissenting. Instead of deciding this case in accordance with controlling precedent, the Court today delivers a disconcerting lecture about the evils of governmental racial classifications. For its text the Court has selected three propositions, represented by the bywords “skepticism,” “consistency,” and “congruence.” See ante, at 223-224. I shall comment on each o...
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515 U.S. 70 (1995) MISSOURI et al. v. JENKINS et al. No. 93-1823. United States Supreme Court. Argued January 11, 1995. Decided June 12, 1995.[*] CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT *72 *72 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. O'Connor, J., post, p. 103, and Thomas, J., post, p. 114,...
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delivered the opinion of the Court. This is an admiralty case in which the plaintiff’s loss was primarily attributable to its own negligence. The question presented is whether that fact, together with the existence of a genuine dispute over liability, justified the District Court’s departure from the general rule that prejudgment interest should be awarded in maritime collision cases. ...
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Seth Rosenfeld sued the Department of Justice and the Federal Bureau of Investigation (the government) under the Freedom of Information Act (FOIA) to obtain information about FBI investigations of several individuals and 1960s protests at the University of California, Berkeley. The government appeals from the district court’s grant of summary judgment, which ordered the government to release va...
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We must decide whether biological connection, standing alone, gives a grandmother a constitutionally protected liberty interest in the adoption of her grandchildren. We conclude that it does not and affirm the district court’s dismissal of this case. I. This case concerns the lives of two Oregon children. Loraine and Charles Mullins, both Washington residents, wish to adopt the two children. ...
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57 F.3d 797 Florence BILLINGS, Plaintiff-Appellant,v.UNITED STATES of America; Marilyn Quayle; JeffEisenbeiser; Tony Guilbault; David Cahill; RossDvorak; Scott Kecskes; County of SanBernardino, et al.,Defendants-Appellees. No. 94-55013. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 2, 1994.Decided June 12, 1995. Rosario Perry, Santa Monic...
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Appellant Seven Resorts, Inc., a Nevada corporation, appeals the district court’s dismissal for lack of subject matter jurisdiction of its petition in admiralty for indemnification pursuant to a rental contract and limitation of liability under 46 U.S.C. § 183 (1988). We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1988), and we affirm. *772 I. FACTS On Ma...
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OVERVIEW Chapter 7 debtor Dale Visness initiated this adversary action during his bankruptcy proceeding to determine the dischargeability of his debt to Contra Costa County (“County”) for Aid for Families with Dependent Children (“AFDC”) disbursements made to his spouse for the support of their three minor children. The County appeals the district court judgment affirming the bankruptcy co...
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The Independent Guard Association of Nevada, Local No. 1 (“IGAN”), appeals the district court’s grant of summary judgment to the Secretary of Energy in IGAN’s suit to enjoin the application of the Department of Energy’s (“DOE” or “agency”) Nuclear Explosive Safety Order 5610.11 (Oct. 10, 1990) (“Order”). IGAN objected to the DOE’s promulgation of the Order, which is an extensive personnel regulati...
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Opinion Petitioner James “Terry” B. is the father of two dependent children of the juvenile court, Aaron B. and Justin B. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order terminating reunification services *1016 and setting a permanency planning hearing pursuant to Welfare and Ins...
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Opinion Petitioner Roxanne H. is the mother of four dependent children of the juvenile court, Jessica G., Samantha G., Brandi G., and O’Ryan G. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order setting a permanency planning hearing pursuant to Welfare and Institutions *1010 Code se...
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Opinion The People appeal the order setting aside an information charging Wyatt Silver with assault by a prisoner likely to cause great bodily injury (Pen. Code, 1 § 4501). On May 13, 1994, the People filed a complaint in Imperial County charging Silver with assault by a prisoner likely to cause great bodily injury. When correctional officer Sergeant Mason testified at the preliminary heari...
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with whom Justice Stevens, Justice O’Connor, and Justice Souter join, concurring in part and dissenting in part. I dissent from the portion of the Court’s decision that permits Oklahoma to tax the wages that (1) the Tribe pays (2) to members of the Tribe (3) who work for the Tribe (4) within Indian country, but (5) who live outside Indian country, and, apparently, commute to work. The issue is whe...
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The principal question presented is whether the district court abused its discretion in denying Marshall’s motion for discovery based upon his claim of discriminatory prosecution. I. BACKGROUND From 1985 to 1992, Marshall possessed and distributed cocaine, cocaine base, and heroin in Southern California and Seattle, Washington. In June 1990 officers searched Marshall’s apartment and seized 5,...
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In these cross-appeals we confront the aftermath of a verdict from a jury that was not properly instructed on inconsistent charges as 'required by United States v. Gaddis, 424 U.S. 544, 96 S.Ct. 1023, 47 L.Ed.2d 222 (1976). Joe Willie MeLaurin was tried for bank robbery in violation of 18 U.S.C. § 2113(a), and receipt of stolen bank funds in violation of subsection (c) of the same st...
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Appellant hospitals appeal from a decision of the Secretary of Health and Human Services (“the Secretary”) declining to reimburse the hospitals for stock options granted to certain employees. The hospitals participate in the Medicare program and seek reimbursement from the Secretary under that program. The Secretary refused reimbursement for the stock options, finding that under generally accepted...
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Ernest J. Franceschi, Jr., a California attorney (State Bar No. 112893), appeals the judgment of the district court 1) dismissing his 42 U.S.C. § 1983 action for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) and 2) awarding attorneys’ fees to the defendants pursuant to 42 U.S.C. § 1988. We affirm. I. Franceschi bases his 42 U.S.C. § 1983 action upon the incidents which oc...
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10 Cal.4th 424 (1995) 895 P.2d 469 41 Cal. Rptr.2d 362 ARKITA L. HOWARD, Plaintiff and Appellant, v. THRIFTY DRUG AND DISCOUNT STORES, Defendant and Respondent. Docket No. S035703. Supreme Court of California. June 15, 1995. *428 COUNSEL Errol J. Gordon for Plaintiff and Appellant. Lynberg & Watkins, Charles A. Lynberg and Hellar Ann Hancock for Defendant and Respondent. *429 OPINION MOSK, J....
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Opinion The sole issue in this case is whether Code of Civil Procedure 1 section 12a, which extends the time period for performing an act when the last day falls on a holiday, is applicable to the 30-day time limit within which to file a complaint after service of an arbitration award in an attorney fee dispute. We conclude that it does, and reverse the judgment. Facts and Procedural Histor...
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Opinion Appellants Steve and Sharon Munkdale seek review of a judgment by which the San Mateo Superior Court denied their claim for a refund of property taxes paid. The trial court found that the respondents, County of San Mateo and its assessor, Roland Giannini, had properly reassessed 100 percent of certain parcels of real estate upon transfer of those *1107 properties from...
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Jerry Lee France appeals from his 96-month sentence, imposed following his guilty pleas, for two counts of bank robbery in violation of 18 U.S.C. § 2113(a). France contends that the district court erred by increasing his offense level under the United States Sentencing Guidelines for making an “express threat of death” during one of the robberies. We have jurisdiction under 28 U.S.C. § 1291, and ...
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Ronald Reiser shot Victor Romero, paralyzing him from the waist down. The shooting occurred inside the boundaries of Fort Peck Indian Reservation in Montana. Reiser was indicted and convicted of violating 18 U.S.C. § 113(f) (assault resulting in serious bodily injury). He is currently serving a prison term of 71 months. He raises on appeal two claims regarding his conviction: *849 ...
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Opinion by Judge T.G. NELSON; Concurrence by Judge TROTT. OPINION Jaeobo Ramos-Vasquez (“Ramos-Vasquez”), a native and citizen of Honduras, petitions for review of a decision of the Board of Immigration (“BIA” or “the Board”). The BIA denied Ramos-Vasquez’s request for withholding of deportation under 8 U.S.C. § 1253(h) and for asylum under 8 U.S.C. § 1158(a). Finding Ramos-Vasquez not credible, ...
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*1143 Opinion May a court order payment of temporary spousal support and litigation expenses, including attorney fees, in a civil action by one spouse to enforce the other’s duty of support during the marriage? Although this precise question has not been previously decided, closely related precedent dictates an affirmative answer. We therefore affirm the interim support orders under review, w...
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delivered the opinion of the Court. This case requires us to interpret the Carriage of Goods by Sea Act (COGSA), 46 U. S. C. App. § 1300 et seq., as it relates to a contract containing a clause requiring arbitration in a foreign country. The question is whether a foreign arbitration clause in a bill of lading is invalid under COGSA because it lessens liability in the sense that COGSA prohibits. Ou...
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concurring. One reason for difficulty in adapting 42 U. S. C. § 1983 to an action attacking a state tax is, in my view, that § 1983 was not intended for claims based on the Commerce Clause at all. See Dennis v. Higgins, 498 U. S. 439, 451 (1991) (Kennedy, J., dissenting) (violations of the Commerce Clause do not give rise to a cause of action under § 1983); see also Golden State Transit Corp. v. L...
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Mr. James Moorehead appeals his conviction under 18 U.S.C. § 922(g), possession of a firearm by a felon. He makes four claims of error: evidence obtained in violation of the Fourth Amendment was submitted at trial; evidence of bad character was presented to the jury in violation of Federal Rule of Evidence 404(b); the district court wrongfully cross-examined one of the defense witnesses; and, las...
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Paul L. Faber appeals his conviction for conspiracy to manufacture and possess with intent to distribute marijuana. Faber contends that his criminal sentence should be vacated in light of the recently decided Ninth Circuit case, U.S. v. $405,089.23 U.S. Currency, which held that criminal proceedings and civil forfeiture proceedings based on the same acts may subject a defendant to double jeopar...
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Section 611(a) of the Internal Revenue Code (I.R.C.) provides: In the case of ... timber, there shall be allowed as a deduction in computing taxable income a reasonable allowance for depletion ..., according to the peculiar conditions in each case; such reasonable allowance in all cases to be made under regulations prescribed by the Secretary. I.R.C. § 611(a). For purposes of calculat...
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C. A. 9th Cir. Motion of Business Roundtable for leave to file a brief as amicus curiae granted. Certiorari granted limited to Question 1 presented by the petition....
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C. A. D. C. Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Wilton v. Seven Falls Co., ante, p. 277....
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C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Gutierrez de Martinez v. Lamagno, ante, p. 417....
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 449 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 450 OPINION Petitioner is presently incarcerated at Pelican Bay State Prison. He filed a petition for writ of habeas...
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Opinion Defendant and appellant Alexander Rutan Joehnk was convicted of driving under the influence of an alcoholic beverage (Veh. Code, 1 § 23152, subd. (a)), and of driving with a blood-alcohol level of 0.08 or higher (§ 23152, subd. (b)). He appeals, arguing the trial court erred in allowing a police officer to use findings from horizontal gaze nystagmus (HGN) testing as a b...
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*1119 Opinion Defendant and appellant City of Compton (the City) appeals the judgment entered following court trial granting plaintiff and respondent Shell California Pipeline Company (SCPC) concurrent, nonexclusive, subsurface pipeline easements for two oil product pipelines that run under the City’s streets. Because SCPC is a public utility entitled to condemn the instant ...
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Opinion Linda E. Stanley (appellant) timely appeals from a judgment of nonsuit entered as to her claims for breach of fiduciary duty, legal malpractice, and breach of contract. These claims against respondents Diana Richmond (Richmond or respondent) and her law firm, Richmond & Chamberlin (collectively, hereinafter, respondents), arose out of a dissolution proceeding in which Richmond rep...
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Opinion This case considers the simple question of whether a paternity blood test may be judicially compelled at the behest of a father who is seeking to vacate a three-year-old paternity judgment. Appellant City and County of San Francisco (City) contends that the court abused its discretion in ordering paternity blood testing at the behest of respondent Jose Cartagena, the judicially determin...
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Opinion I. Introduction The County of Ventura and its district attorney, Michael Bradbury, appeal from an order dismissing an action by which they seek to compel the State Bar of California to permit Bradbury to challenge, on behalf of employees for whom they paid compulsory bar dues, the State Bar’s calculation of the voluntary portion of dues used for political or ideological purpo...
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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 April 28, 1989, the District Attorney of Ventura County filed an amended information against defendant Larry David Davis in the superior court of that county. Count I charged that, on or about August 28, 1988, defendant ...
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Brady-Hamilton Stevedore Company and Manhattan Re-Insurance Company (“Brady-Hamilton”) petition for review of a decision and order of the Benefits Review Board (“Board”) affirming an administrative law judge’s (“ALJ”) award of disability benefits to Henry Anderson pursuant to the Long-shore and Harbor Workers’ Compensation Act, (“LHWCA”) as amended, 33 U.S.C. § 901 et seq., for back injuries sust...
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59 F.3d 102 UNITED STATES of America, Plaintiff-Appellee,v.Reggie Neon BROWN, Defendant-Appellant. No. 94-30271. United States Court of Appeals,Ninth Circuit. Submitted May 5, 1995*.Decided June 20, 1995. David T. McDonald, Cross & McDonald, Portland, OR, for defendant-appellant. Baron C. Sheldahl, Asst. U.S. Atty., Portland, OR, for plaintiff-appellee. A...
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We hold that the equal protection analysis in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. *423 1712, 90 L.Ed.2d 69 (1986) does not apply to prohibit peremptory strikes on the basis of obesity. The defendant in this case was convicted on felony drug charges and now seeks to use the striking of obese venire persons to overturn his conviction. A detailed recitation of the facts is not necessary...
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Opinion Plaintiff Daniel Hussey appeals from the judgment entered following the grant of summary judgment in favor of defendant Operating Engineers Local Union No. 3 of the International Union of Operating Engineers (the Union). 1 We have determined summary judgment was properly granted. I Procedural and Factual Background Hussey filed a complaint against the Union and its business agen...
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Opinion Plaintiff Sherri Lynn Dutton (Dutton), through her guardians ad litem, appeals from a judgment in favor of defendants City of Pacifica (the City) and Pacifica Police Officer Anthony Risso (Risso). Dutton contends that the trial court’s order granting summary judgment must be reversed because there is a triable issue of material fact as to whether Risso owed her a duty of care. We ...
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Opinion Marco Antonio Castaneda appeals his convictions for drug possession on two separate occasions after the trial court denied his motion to suppress evidence. He raises the same issue on appeal as he did in his motion: did the police officers unreasonably detain and frisk him? We affirm. Facts In 1989, a police officer contacted Castaneda while he was seated in the passenger seat of an illega...
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Opinion by Judge REINHARDT; Dissent by Judge FERNANDEZ. This appeal presents various factual and legal questions regarding the sentence and conviction of the defendant, Fernando Vizcarra-Martinez. Although we decline the defendant’s invitation to reverse his conviction based upon the insufficiency of the evidence and find no merit in his claim that the evidence seized during the search of his car ...
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The government appeals the district court’s suppression of evidence seized pursuant to a search warrant. We have jurisdiction under 18 U.S.C. § 3731 and affirm. FACTS On October 15, 1990, FBI agents entered the offices of the defendants’ business, Hong Kong T.V. Video Program, Inc. (“HK Video”), and seized essentially all of the business’s records, computer hardware and software, file...
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When Jeanne Herman, a member of an office-worker’s union, was abruptly terminated after 36 years of service, she brought suit against her employer, a local of the Carpenter’s union, asserting a variety of claims. This appeal from a grant of summary judgment in favor of Herman’s employer raises several questions: 1) Under what circumstances may a union member bring a breach of contract claim dir...
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57 F.3d 1495 1995 A.M.C. 2022, 64 USLW 2012 Christopher Gerald GLYNN, Plaintiff-Appellant-Cross-Appellee,v.ROY AL BOAT MANAGEMENT CORP.; Daniel J. Shawhan, inpersonam; F/V No Problem, O.N. 650399, her engines,equipment, appurtenances, catch, in rem; F/V Full Moon, herengines, equipment, appurtenance, cargo freight and catch,in rem, Defendants-Appellees-Cross-Appellants. Nos. 93-1554...
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Opinion Plaintiffs Domingo and Katherine Legarra brought a declaratory action seeking to establish defendant Federated Mutual Insurance Company’s duty to defend and indemnify them in connection with a demand by the California Regional Water Quality Control Board for certain response costs for groundwater contamination on their property. Defendant successfully moved for summary judgment on...
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Opinion State law protects public safety officers from being compelled to submit to polygraph examinations against their will. (Gov. Code. § 3307.) 1 We conclude that a city police department may require a polygraph examination for officers who voluntarily seek to be promoted or transferred into a few specialized divisions where the work is unusually sensitive and requires the ...
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Petitioner, Mr. Yang, claims that the Board of Immigration Appeals abused its discretion in refusing to grant him a discretionary waiver under Section 241(a)(1)(H) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a)(1)(H) (West Supp.1994). Mr. Yang concedes that he is deportable, but argues that the BIA improperly considered impermissible factors in denying the waiver. The BIA con...
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OPINION I. In this appeal, we determine whether section 5E1.2(i) of the United States Sentencing Guidelines was validly promulgated under the version of the Sentencing Reform Act in effect at the time of Zakhor’s sentencing, and whether the section violates the Due Process Clause of the Fifth Amendment. Siamac Zakhor pleaded guilty to two counts of mail fraud, in violation of 18...
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Jack Ritter appeals from a grant of summary judgment in favor of Hughes Aircraft Co. Ritter claims that Hughes unlawfully discharged him: 1) because of his age, in violation of § 4 of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623, 1 and 2) in order to prevent his retirement benefits from vesting, in violation of § 510 of the Employee Retirement Income Security Ac...
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Annette T. New, the successor in interest of Joseph J. New, (New), deceased, appeals from the judgment of the district court dismissing New’s action against Armour Pharmaceutical Company (Armour). The single issue on appeal is when the California statute of limitations begins to run on causes of action for the wrongful infliction of AIDS. Holding that the issue cannot be decided on the pleading...
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58 F.3d 430 64 USLW 2003, Fed. Sec. L. Rep. P 98,788,31 Fed.R.Serv.3d 1329 Richard T. SCHWARZSCHILD, Plaintiff-Appellant,v.Bernard K. TSE, et al.; Lawrence D. Lummis; Robert C.Wilson; Phillip E. White; James P. Lally; WyseTechnology, Inc.; WT Acquisition Corp.; and ChannellInternational Corporation, Defendants-Appellees. No. 93-16681. United States Court of Appeals,Ninth Ci...
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Plaintiff William Earl Warren III appeals the district court’s grant of summary judgment in favor of defendants, the City of Carlsbad and city employees (collectively “the City”), and the district court’s grant of Fed.R.Civ.P. 11 sanctions against him and Thomas Gill, an attorney (not of record) who helped him with the case. Warren alleges that the defendants violated Title VII of the CM Rights...
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I. John Stone brought this action against his employer, The Travelers Corporation, alleging that Travelers’ manner of providing for Stone’s early retirement violated the Age Discrimination In Employment Act (ADEA), 29 U.S.C. §§ 621, et seq., and the Employee Retirement Income Security Act (ERISA), 29 U.S.C. §§ 1001, et seq. Stone also asserted an age discrimination cl...
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We are presented with the question whether, and under what circumstances, a district court may deny the government’s request for leave to file a dismissal of an indictment. In the ease before us, after the defendant fulfilled his agreement to cooperate with the prosecution, the government sought to dismiss one of two remaining counts against him. The district judge refused leave to dismiss. The d...
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10 Cal.4th 578 (1995) 896 P.2d 171 41 Cal. Rptr.2d 878 ABRAHAM LEVY, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOSEPH H. GOLANT, Real Party in Interest. Docket No. S035538. Supreme Court of California. June 22, 1995. *579 COUNSEL Greenberg, Glusker, Fields, Claman & Machtinger, Michael K. Collins, Harvey R. Friedman and Patricia A. Millett for Petitioner. No appeara...
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I agree with the majority’s conclusion in part III that article XIII A of the California Constitution applies to property owned by a local government outside its boundaries. Having so concluded, I would not contort our interpretation of article XIII, section 11 (hereafter section 11), in an attempt to reconcile it with article XIII A. I would instead recognize frankly that article XIII A has effec...
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Opinion George Bostrom was severely injured when the small plane he was piloting crashed on takeoff from Chino Airport. The County of San Bernardino (the County) owns Chino Airport. The County leased land at the airport to Cal West Aviation for the purpose of providing jet fueling and other services. The crash occurred because an employee of Cal West Aviation fueled the plane with jet fue...
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Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent Edward Donald Monaghan, Jr.’s, petition for writ of mandate, which sought to set aside the suspension of Monaghan’s driving privilege for driving with an illegal blood-alcohol concentration (BAG). The judgment grants the writ without prejudice to the DMV’s holding of an administrative hearing to review th...
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Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting respondent John Robert Baldwin’s petition for writ of mandamus, in which Baldwin sought to overturn the DMV’s order revoking his driver’s license. The DMV issued the order after receiving notice of Baldwin’s third conviction for driving under the influence of alcohol. The judgment directs the DMV to vacate its...
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Opinion This is the second appeal before us in this action by a home seller against an escrow agent for various misdeeds which allegedly occurred in connection with the sale of plaintiff’s house. In the first appeal we held that the trial court properly concluded that plaintiff’s claims for impairment of security were barred by plaintiff’s full credit bid at the trustee’s sale. But we als...
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Opinion The City of Pismo Beach and its city council (City) appeal from a trial court order overruling their demurrer to and granting a petition *1603 for writ of mandate filed by former City Police Officer Mark Stewart (Stewart). The writ compels the City to provide Stewart with a defense, i.e., separate counsel, in a federal civil rights action filed against him, the City, ...
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Opinion The issue presented is whether a jury can award exemplary damages when it has expressly determined that the plaintiffs were entitled to “0.00” compensatory damages. Our answer is No. Background The latest episode in a bitter and protracted dispute concerning a rundown residential property under the control of Ron Daley was a complaint in which neighbors to the property a...
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Opinion In this appeal, we conclude that the Knox-Keene Health Care Service Plan Act of 1975 (Act) (Health & Saf. Code, § 1340 et seq.) and section 1300.46 of title 10 of the California Code of Regulations (hereafter regulation 1300.46) prohibit a broker of health care service plans from rebating commissions to his clients. Plaintiff James R. Schmidt worked as an independent broker f...
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Opinion In this breach of insurance contract action, the trial court granted summary judgment motions for the insurer (Sun Insurance Company of New York; Sun) and its managing general agent (Wm. H. McGee & Co., Inc.: McGee), entered a judgment of dismissal for the insurance broker (Sander A. Kessler & Associates, Inc.; Kessler), granted a summary judgment motion for the insurer on its cro...
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Opinion Plaintiff General Motors Corporation brought an action for a refund of business taxes imposed by the defendant City of Los Angeles pursuant to provisions of its municipal code on the ground that the taxes are discriminatory and violate both the California and the United States Constitutions. After a bench trial, judgment was entered in favor of the city. General Motors appeals. I In...
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OPINION SUMMARY Appellant, Henry M. Ramirez, Esq. (“Ramirez”), is an attorney practicing law in San Diego, California. To collect on a judgment against Ramirez, the appellee, Leonard Goldberg (“Goldberg”), a chiropractor whose *586practice is also located in San Diego, obtained a writ of execution from the San Diego County Municipal Court on July 13, 1998. The writ placed a levy upon money and e...
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ORDER ON PETITION FOR WRIT OF HABEAS CORPUS Petitioner Philip Senegal is a prisoner of the State of California. He was convicted by a state court jury of one count of murder and one count of attempted murder, and was sentenced to state prison. In this petition for a writ of habeas corpus, he alleges several grounds of constitutional error. I. Petitioner and his codefendant William Chane...
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OPINION I The bankruptcy court granted the trustee’s motion to reopen the debtor’s bankruptcy case. The trustee sought to reopen the case in order to pursue a fraudulent transfer action against the debtor’s wife. The debt- or’s wife moved to set aside the order, but the court denied that motion. The wife has appealed; however, she lacks standing, Therefore, the appeal is DISMISSED, jj FAC...
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Opinion This case presents the unusual question whether the alleged gender bias of the trial judge requires us to set aside his judgment. Appellant, Marie Catchpole, commenced this litigation in the Superior Court of Humboldt County, asserting claims of sexual harassment, assault and battery, and intentional and negligent infliction of emotional distress against respondents, Melody a...
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Opinion This appeal and the related cross-appeal involve the sufficiency of monetary damages awarded to a landlord after a long-time commercial tenant vacated and left the premises in disrepair. The property in question is a commercial building on La Cienega Boulevard in Culver City, which was operated at all relevant times as the Dorman-Winthrop men’s clothing store. Appellant and c...
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*1768 Opinion This is an appeal from an order denying a motion to set aside a default judgment in an action for declaratory and injunctive relief regarding Lisle Steven Saum’s claimed right-of-way easements over property owned by Leroy and Sally Reppert. The Repperts answered the Saum complaint and filed a cross-complaint. Saum failed to answer the cross-complaint and his de...
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Opinion In this petition for extraordinary relief, we determine an indigent parent is entitled to appointed appellate counsel where that parent’s rights have been terminated in a proceeding freeing his or her child from custody and control (Fam. Code, 1 § 7822) or in a proceeding declaring that parent’s consent unnecessary for a stepparent adoption. (§§ 9000, 8604.) Relying on ...
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Opinion Following an accident with an underinsured motorist, plaintiffs Michael and Mary Sutton who held three separate automobile insurance policies on three separate vehicles with defendant Farmers Insurance Exchange (Farmers), unsuccessfully sought coverage under the policy with the highest underinsured motorist liability limit. Thereafter, plaintiffs filed the instant action for declaratory...
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Opinion In this case we are called upon to consider the authority of the juvenile court to extend the time parameters ordinarily applicable to dependency proceedings in an unusual circumstance where a parent’s hospitalization for mental illness compromises her ability to participate in reunification services. The mother, Rebecca, was hospitalized for all but five months of the reunification phase...
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MEMORANDUM OPINION AND ORDER I. Background In June of 1987, plaintiffs Aiad Barakat and Naim Sharif applied for legalization under the Immigration Reform and Control Act of 1986, 8 U.S.C. § 1255a (“IRCA”). Legalization under IRCA is a two-step process. First, the Attorney General grants temporary resident status to any alien who establishes: (1) that he has maintained a continuous, u...
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59 F.3d 112 95 Daily Journal D.A.R. 8477 Matthew LAURENCE, et al., Plaintiffs-Appellants,v.DEPARTMENT OF the NAVY; U.S. Department of Housing andUrban Development; United States of America,Defendants-Appellees. No. 94-16011. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 14, 1995.Decided June 28, 1995. Richard L. Bowers, The Boccardo Law Fi...
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“We are told that Contract, like God, is dead.”1 In this computer age case, we learn that Contract, at least, is very much alive and well in the Ninth Circuit. I Apollo Group, Inc. (“Apollo”) purchased software from Oracle Corporation (“Oracle”), a software vendor. Apollo’s purchase included both a database system and Oracle Finan-cials, an accounting software package. Apollo then sought to purcha...
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The Teamsters have been very, very good to Earl Bush. From 1987 to 1989, Bush worked both as a representative of the International Brotherhood of Teamsters (the International) and as an officer of Teamsters Local 399 (the Local). The Local paid him $100,000 in salary and the International paid him $64,000; both entities gave him generous car allowances; both paid his portion of the Social Securit...
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delivered the opinion of the Court. The University of Virginia, an instrumentality of the Commonwealth for which it is named and thus bound by the First and Fourteenth Amendments, authorizes the payment of outside contractors for the printing costs of a variety of student publications. It withheld any authorization for payments on behalf of petitioners for the sole reason that their student *823pa...
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delivered the opinion of the Court. We held in Shaw v. Reno, 509 U. S. 630 (1993), that a plaintiff may state a claim for relief under the Equal Protection Clause of the Fourteenth Amendment by alleging that a State “adopted a reapportionment scheme so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, *739an...
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concurring. My agreement with the Court is founded on two understandings. First, the challenged regulation is limited to significant habitat modification that causes actual, as opposed *709to hypothetical or speculative, death or injury to identifiable protected animals. Second, even setting aside difficult questions of scienter, the regulation’s application is limited by ordinary principles of pr...
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58 F.3d 1386 32 Fed. R. Serv. 3d 1016, 95 D.A.R. 8582,Pens. Plan Guide P 23912N Dale A. CRULL and Theresa M. Crull, husband and wife,Plaintiffs-Appellants,v.GEM INSURANCE COMPANY, a Utah corporation, Defendant-Appellee. No. 94-15159. United States Court of Appeals,Ninth Circuit. Submitted* June 14, 1995.Decided June 29, 1995. Jan E. Cleator, Phoenix, AZ, for plaintif...
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We must decide whether a federal court may at sentencing consider information revealed by a defendant in exchange for state transactional immunity. We hold that, in the absence of an independent and legitimate source for that information, a federal district court may not. ** I In an unrelated state matter, the Missoula County Attorney’s office granted Gene Camp and Victor Camp...
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59 F.3d 114 95 Daily Journal D.A.R. 8589 Antonio C. YAMASHITA, Petitioner for Registration of Lot No.368, "Guaifan," Municipality of Inarajan, Guam,Petitioner-Appellant,v.The PEOPLE OF the TERRITORY OF GUAM, Respondent-Appellee. No. 93-16206. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 1, 1994.Decided June 29, 1995. Joaquin V.E. Manibusan,...
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59 F.3d 117 76 A.F.T.R.2d 95-5398, 95-2 USTC P 50,371,95 Daily Journal D.A.R. 8591 John H. FORTNEY, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 94-15250. United States Court of Appeals,Ninth Circuit. Submitted June 16, 1995.*Decided June 29, 1995. John H. Fortney, Carson City, NV, in pro per for the plaintiff-appellant. Janet A. Bra...
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58 F.3d 494 64 USLW 2078, 32 Fed.R.Serv.3d 795,27 Bankr.Ct.Dec. 554,Bankr. L. Rep. P 76,564,95 Daily Journal D.A.R. 8594 John DOE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.In re John DOE, Debtor.John DOE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. Nos. 93-56367, 94-55552. United States Court of Appeals,Ninth Circuit. Argued an...
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10 Cal.4th 594 (1995) 896 P.2d 776 42 Cal. Rptr.2d 50 MARY ANN WARFIELD, Plaintiff and Appellant, v. PENINSULA GOLF & COUNTRY CLUB et al., Defendants and Respondents. Docket No. S031285. Supreme Court of California. June 29, 1995. *598 COUNSEL Belli, Belli, Brown, Monzione, Fabro & Zakaria, Melvin M. Belli, Kevin R. McLean, Shelley R. Antonio, Vincent M. O'Brien and Randall H. Scarlett fo...
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Opinion In this case, we decide that when a lender does not require in its contract that the borrower obtain earthquake insurance on the property securing the loan, it has no right under the contract to receive or control the insurance proceeds paid as a result of earthquake damage to the property. Factual and Procedural Summary On June 27, 1988, petitioner Phyllis Ziello (borro...
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Opinion Plaintiff and appellant John O. Robertson (Robertson) appeals a judgment striking his complaint and dismissing his action pursuant to Code of Civil Procedure section 425.16 and awarding $15,000 in attorney *352 fees to defendants Alex Rodriguez (Rodriguez), Jack Cluck, Joseph Graffio and David Silva (collectively, defendants). 1 Defendants also appeal, se...
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Opinion Defendants Jerry J. Tepper and C.F. Group, Ltd. (together Tepper) appeal an order finding plaintiff Ralph Brienza’s (Brienza) attorney’s lien for contingency fees in the underlying lawsuit against Tepper was entitled to priority over a subsequently acquired offset obtained by Tepper (the judgment debtor) against Brienza (the judgment creditor). We affirm. Facts The parti...
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Opinion Stanton Road Associates (Stanton), a limited partnership, appeals from two judgments entered after the trial court sustained the demurrers of three insurers without leave to amend and granted summary adjudication in favor of a fourth. We ordered the appeals consolidated and now affirm both judgments. Background This case involves a continuous property loss and claims mad...
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OPINION John Doe, a fourteen year old member of the Salt River Pima-Marieopa Indian Com-mumty, appeals his conviction on two counts of juvenile delinquency. He contends that use of his inculpatory statements violated the Fifth Amendment and the Federal Rules of Criminal Procedure. We have jurisdiction, 12 U.S.C. § 1291, and affirm. *546 I. BACKGROUND Doe was convicted after a one day benc...
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Opinion This case of first impression presents the question of whether the “three strikes” law prevents a trial judge from sentencing a “wobbler” as a misdemeanor. We hold that it does not. The People appeal from a judgment entered following respondent Kenneth Lester Vessell’s no contest plea to a charge that he violated Penal Code section 273.5, subdivision (a), 1 after h...
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36 Cal.App.4th 393 (1995) 42 Cal. Rptr.2d 260 ROBERT DEMYER et al., Plaintiffs and Appellants, v. COSTA MESA MOBILE HOME ESTATES et al., Defendants and Respondents. Docket No. G013481. Court of Appeals of California, Fourth District, Division Three. June 30, 1995. *394 COUNSEL Peter L. Recchia and Stephen I. Blanchfill for Plaintiffs and Appellants. Swanson & Dowdall, Swanson & Gieser and...
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Opinion The Insurance Commissioner of the State of California (the Insurance Commissioner) was appointed as the conservator and liquidator of Title U.S.A. Insurance Corporation (Title U.S.A.) in a proceeding brought under section 1010 et seq. of the Insurance Code.1 The Insurance Commissioner filed suit against the law firm of Armato, Gaims, Weil, West & Epstein (Armato) to recover from it money ...
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Opinion This case arises under the so-called “three strikes” legislation (Pen. Code, § 667, subds. (b)-(i); Stats. 1994, ch. 12, §§1-2). In late 1993 defendant entered a plea of guilty to one count of residential burglary (Pen. Code, § 459; all further statutory references are to the Penal Code unless otherwise specified), a serious felony under section 1192.7, subdivision (c)(18). He was...
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Opinion California lettuce grower and distributor KGM Harvesting Company (hereafter seller) had a contract to deliver 14 loads of lettuce each week to Ohio lettuce broker Fresh Network (hereafter buyer). When the price of lettuce rose dramatically in May and June 1991, seller refused to deliver the required quantity of lettuce to buyer. Buyer then purchased lettuce on the open market in o...
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Opinion Ernest Dwaine Butler was charged with first degree burglary (Pen. Code, §§ 459-460, subd. 1) and grand theft (Pen. Code, § 487, former subd. 1.) A jury returned a verdict acquitting appellant of the burglary charge, but finding him guilty of grand theft. Appellant appeals from the judgment entered upon this verdict. His sole contention on appeal is that he was deprived of the effective ...
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59 F.3d 852 95 Daily Journal D.A.R. 8730 Thomas DODD and Doris Dodd, Plaintiffs-Appellants,v.HOOD RIVER COUNTY, An Oregon Municipal Corporation, Defendant-Appellee,andState of Oregon, Defendant-Intervenor-Appellee. No. 93-35207. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 14, 1994.Decided June 29, 1995. John M. Groen, Pacific Legal Founda...
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58 F.3d 1406 95 D.A.R. 8741 BANK MELLI IRAN; Bank Mellat, Plaintiffs-Appellants,v.Shams PAHLAVI, aka H.I.H. Princess Shams Pahlavi, Defendant-Appellee. No. 94-55292. United States Court of Appeals,Ninth Circuit. Argued and Submitted June 6, 1995.Decided June 29, 1995. Steven D. Atkinson, Atkinson, Andelson, Loya, Ruud & Romo, Cerritos, CA, for plaintiffs-appella...
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58 F.3d 1392 41 ERC 1207, 32 Fed.R.Serv.3d 774, 25Envtl. L. Rep. 21,265,95 Daily Journal D.A.R. 8746 IDAHO FARM BUREAU FEDERATION, a non-profit corporation;Idaho Cattle Association, a non-profitcorporation, et al.,Plaintiffs-Appellees-Cross-Appellants,v.Bruce BABBITT, Secretary of Interior, et al., Defendants-Appellees,andIdaho Conservation League, Inc., an Idaho non-profitcorporation; Co...
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Opinion In Prudential-LMI Com. Insurance v. Superior Court (1990) 51 Cal.3d 674 [274 Cal.Rptr. 387, 798 P.2d 1230] (Prudential-LMI), we examined the issue of allocation of indemnity among insurers in a first party property insurance case, where a loss had occurred over several policy periods but was not discovered until several years after it commenced. We found the “manifestation of loss rule” a...
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I concur in the judgment. The majority’s disposition is correct, and I join in it. But I cannot agree with the majority’s analysis of Penal Code sections 422.6 and 422.7 (all statutory references are to this code). I. The majority have misconstrued the intent requirement of section 422.6 in a manner that will make prosecuting hate crimes more difficult. Section 422.6 provides, “No person . . . sha...
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Opinion In this case we construe Penal Code section 422.75, one of California’s “hate crimes” statutes.1 Section 422.75 provides for imposition of a sentence enhancement for felonies committed because of the victim’s race, color, nationality, country of origin, ancestry, disability or sexual orientation. The trial court granted real parties’ pretrial motion to dismiss the section 422.75 allegation...
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Opinion In this declaratory relief action brought by an insurance company against two third party claimants that had obtained a liability judgment against the carrier’s insured, the trial court held that the claimants, having been dragged into this coverage dispute by the carrier, had no standing to litigate the carrier’s waiver of its right to deny coverage. We reverse. Background ...
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Opinion This appeal stems from the purchase of a single family residence by Bruce A. Loken in 1987. After discovering a crack in the *266 cement slab of the building in 1990, Loken brought this action against various individuals and real estate brokerages involved in the sales transaction, including the seller’s real estate brokerage and agent, Century 21-Award Properties and Jim E. Carmichae...
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Opinion This case presents a unique problem created by the efforts of the trial courts to coordinate the work of the municipal and superior courts in criminal cases. Here, the same superior court judge sat as a magistrate at the preliminary examination and later as a superior court judge after the bindover and filing of an information. Apparently, confusing the statutory authority of the magist...
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Opinion In the latter part of 1994, appellant Reginald Green was convicted by a jury of selling rock cocaine to an undercover police officer (Health & Saf. Code, § 11352, subd. (a)). Following a jury waiver, prior convictions for petty theft with a prior and first degree burglary were found true by the trial court. *282 Since the prior burglary conviction qualified as a “fir...
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*277 Opinion In this case we hold that a trial court may order joinder of a personal injury action with a related uninsured motorist arbitration proceeding, where such joinder is necessary to prevent inconsistent rulings. Real parties in interest Melissa and Ronald Louie are plaintiffs in a personal injury action against two motorists, each of whom rear-ended the Louies’ car...
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Stevedoring Services of America (SSA) appealed from an order vacating a writ garnishing funds allegedly held by one of its debtors. We dismissed SSA’s appeal in the belief that we lost jurisdiction of the appeal when the district court relinquished control over the funds, the basis for jurisdiction of SSA’s admiralty action. 941 F.2d 1378 (9th Cir.1991). The Supreme Court vacated our opinion and r...
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59 F.3d 121 40 ERC 1993, 64 USLW 2064, 25 Envtl.L. Rep. 21,272,95 Cal. Daily Op. Serv. 5144,95 Daily Journal D.A.R. 8842 Pamela DURFEY; Paulene Echo Hawk; Dorothy George,Plaintiffs-Appellants,v.E.I. DuPONT DE NEMOURS COMPANY; General Electric Company, aNew York corporation; UNC Nuclear Industries Inc., aDelaware corporation; Atlantic Richfield Company, aDelaware corporation; Rockwell...
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Opinion by Chief Judge WALLACE; Dissent by Judge PREGERSON. Bras appeals from the district court’s summary judgment in favor of the California Public Utilities Commission (Commission), dismissing his equal protection claims for lack of standing. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We reverse and remand. I From 1969 to 1991, Bras provided architectural servic...
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59 F.3d 884 101 Ed. Law Rep. 640, 11 A.D.D. 1050,95 Cal. Daily Op. Serv. 5136,95 Daily Journal D.A.R. 8852 CAPISTRANO UNIFIED SCHOOL DISTRICT, Plaintiff-Appellant,v.Jeremy WARTENBERG, By and Through His Parents, Wayne &Charlene WARTENBERG, in Their Individual Capacity and onBehalf of Jeremy Wartenberg; California Department ofEducation; California Superintendent of Public Instruction...
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Opinion Plaintiff Robert Barber appeals from the summary judgment granted for defendants Marina Sailing, Inc., Harold Crum, Mike *561 Jones, Moore and Associates and Larry Moore. For the reasons set forth below, we reverse the judgment. Facts and Procedural History Plaintiff and appellant Robert Barber (Barber) is a highly experienced sailor. On August 25,1992, at t...
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Opinion This is a “second strike” case under the new “three strikes” law, yet another complex sentence law overlaying an existing complex sentencing scheme. 1 David McKee pled guilty to four counts of forgery. (Pen. Code, § 470.) 2 He was sentenced to prison for six years, eight months and appeals contending: “I. The trial court erred in imposing consecutive subordin...
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59 F.3d 815 95 Daily Journal D.A.R. 8895 William George BONIN, Petitioner-Appellant,v.Arthur CALDERON, as Warden of San Quentin State Prison;James Rowland, Director of the CaliforniaDepartment of Corrections, Respondents-Appellees. Nos. 92-56299, 93-99000. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 5, 1994.Decided June 28, 1995. Emry J. A...
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58 F.3d 1425 95 D.A.R. 8918 Farid Faham Gamal GHALY, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 93-70926. United States Court of Appeals,Ninth Circuit. Argued and Submitted March 9, 1995.Decided July 6, 1995. Ronald H. Bonaparte, Bonaparte & Joannes, Los Angeles, CA, for petitioner. Mark C. Walters and Anthony W. Norwood, Office of...
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58 F.3d 502 95 Daily Journal D.A.R. 8922 UNITED STATES of America, Plaintiff-Appellee,v.Alfonso R. FIGUEROLA, Defendant,Veronica Mas; Fernando Quillahauquy; Maria Sabrogal; DoraBruckman; Elliana Sorreila; Glen Jahnsen,Sureties-Appellants. No. 93-50368. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 5, 1994.Decided July 6, 1995. Victor M...
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59 F.3d 126 95 Daily Journal D.A.R. 8926 Elaine G. CARUTH, Plaintiff-Appellant,v.INTERNATIONAL PSYCHOANALYTICAL ASSOCIATION, Defendant-Appellee. No. 93-56256. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 6, 1995.Decided July 6, 1995. Robert S. Gerstein, Santa Monica, CA, and James Fizzolio, Fizzolio, Fizzolio & McLeod, Sherman Oaks, CA,...
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59 F.3d 902 35 U.S.P.Q.2d 1342, 95 Daily Journal D.A.R. 8929 SELF-REALIZATION FELLOWSHIP CHURCH, a Californiacorporation, Plaintiff-Counter-Defendant-Appellant,v.ANANDA CHURCH OF SELF-REALIZATION, a California corporation,Defendant-Counter-Claimant-Appellee. Nos. 93-16345, 93-16570. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 4, 1995.Decided July 6,...
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Opinion by Judge TANG; Partial Concurrence and Partial Dissent by Judge REINHARDT. Lawrence Buchanan appeals his eighteen-month sentence, which was imposed after Buchanan pleaded guilty to one count of mail fraud and one count of failure to appear. Specifically, Buchanan contends that the district court erroneously calculated his criminal history score. The government argues that Buchanan cannot c...
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58 F.3d 1414 42 Fed. R. Serv. 527, 95 Daily JournalD.A.R. 8949UNITED STATES of America, Plaintiff-Appellee,v.John Jario GIL, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Daniel MONTOYA, Defendant-Appellant. Nos. 93-50458, 93-50646. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 6, 1995.Decided July 6, 1995. Michael Ian Garey...
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Defendants Donovan Dwayne Oliver, Darryl Lee McMillan, and Nathaniel Jones appeal their convictions and sentences for carjacking/aiding and abetting, in violation of 18 U.S.C. §§ 2 and 2119, and using a firearm *549 during a crime of violenee/aiding and abetting, in violation of 18 U.S.C. §§ 2 and 924(c). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, and vacate an...
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Opinion Under governing statutes, a plaintiff is required to serve a defendant, with the summons and complaint within three years of filing the complaint in order to avoid a dismissal. (Code Civ. Proc., §§ 583.210, subd. (a), 583.250.) 1 Section 583.240 provides, however, for the tolling of the three-year period under a number of specified circumstances. The issue in the case b...
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Opinion Gwendolyn Matthews (Matthews) petitions for a writ of mandate after the court denied her peremptory challenge to a judge under Code of Civil Procedure 1 section 170.6. Matthews had previously exercised one challenge pursuant to section 170.6 and attempted to exercise another challenge after the second trial judge granted a summary judgment motion and was partially rever...
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Opinion Respondents Thomas E. Kaljian and Todd Merrill recovered judgment based on a jury’s special verdict against appellants Richard Menezes, 1 Herman Menezes, John Menezes, and Triple M Cattle Company. The judgment was for $2,165,111, consisting of $2,090,375 in contract damages, $49,736 in fraud damages, and $25,000 in punitive damages. The action arose from Menezes’ termin...
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Opinion A jury convicted Gerald Frank Stanley of the first degree murder of Cindy Rogers Stanley (Pen. Code, §§ 187, 189) 1 (count I), arson of an inhabited dwelling (§ 451) (count II) and burglary of an inhabited trailer coach (§ 459) (count III). The jury also found that defendant personally used a firearm in the commission of the murder. (§ 12022.5.) The jury found true the special circums...
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Opinion Plaintiff Kathryn Castaneda brought this medical malpractice action against the physicians who provided her with care and treatment before, during, and immediately after her birth. She alleged defendants’ negligence caused her to suffer brain damage which resulted in mental retardation. The trial court granted a nonsuit in favor of defendant Machikawa, the consulting “OB/GYN” and ...
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Opinion Plaintiff and appellant Wilhelmina B. Pruyn (plaintiff) appeals from a judgment which dismissed her complaint brought against multiple insurance companies under the “direct action” provisions of the Insurance Code. (Ins. Code, § 11580, subd. (b)(2).) 1 The trial court sustained the objections to plaintiff’s pleading by the defendant and respondent insurers 2 ...
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59 F.3d 130 76 A.F.T.R.2d 95-5560, 95-2 USTC P 50,372,95 Daily Journal D.A.R. 9055 TWENTY-THREE NINETEEN CREEKSIDE, INC.; Michael E. Baldigo,Petitioners-Appellants,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 93-70687. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 15, 1995.Decided July 7, 1995. Gary V. Judd, Petaluma, CA, f...
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60 F.3d 1370 1995 A.M.C. 2289, 95 Daily Journal D.A.R. 9058 GALT G/S, Plaintiff,v.HAPAG-LLOYD AG; Can Transport Inc.; Crystal Ice & ColdStorage Co.; D & D Services, Defendants-thirdparty-plaintiffs-Appellees,v.SAFEWAY STORES, INC., Third-party-defendant-Appellant.GALT G/S, Plaintiff,v.HAPAG-LLOYD AG; Can Transport Inc.; Crystal Ice & ColdStorage Co.; D & D Services; ...
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Opinion Plaintiffs/appellants Norton Kamo et al. appeal the dismissal of their legal malpractice action against defendants/respondents W. Craig Biddle et al. 1 after respondents’ demurrer was sustained without leave to amend on statute of limitations grounds. (Code Civ. Proc., § 340.6, subd. (a)(1), (2).) 2 Appellants contend the trial court erred regarding the comme...
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Opinion Plaintiff/appellant Willie Thompson, a minor, by and through his guardian ad litem Patricia Thompson, appeals a summary judgment in favor of defendants/respondents Paul N. Halvonik, Halvonik & Halvonik, Fred J. Hiestand, and Deborah Hinkel Halvonik in his action for legal malpractice. He principally contends there are triable issues of fact as to whether respondents failed to pros...
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Opinion Rejecting defendant’s claims that a defense witness should have been compelled to testify, we affirm his cocaine trafficking conviction. We hold that a convicted defendant retains his Fifth Amendment privilege as to subsequent proceedings against other defendants at least until the time he no longer retains the right to file a timely notice of appeal. Background An undercover officer appro...
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Sabil M. Mujahid, also known as Terry Smith, a prisoner at the Halawa Confinement Facility, appeals pro se the district court’s summary judgment for prison officials in his 42 U.S.C. § 1983 action. Mujahid alleged that prison officials violated his constitutional rights by finding him guilty of violating prison regulations for speaking with an inmate from another residence area. Mujahid was pla...
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59 F.3d 134 149 L.R.R.M. (BNA) 2859, 95 Cal. Daily Op.Serv. 5315,95 Daily Journal D.A.R. 9089 Barbara LAMBERT; Santa Ana City; Santa Ana City EmployeesAssociation, Plaintiffs-Appellees,v.Robert RICHARD, Director, Library Department Director;David Ream, City Manager; City of Santa Ana,Defendants-Appellants. No. 94-55129. United States Court of Appeals,Ninth Circuit. Submitted...
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Opinion Plaintiff and appellant Thomas Shelley appeals seeking review of a class certification order on the ground that a broader class should have been included. Because we believe that an order partially certifying a class is not a final judgment and therefore not appealable, we dismiss. I In May of 1986, appellant was cited for allegedly parking in a “no parking” zone, which resulted in his ca...
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Opinion Defendant Robert C. Weatherford (Weatherford) appeals from the trial court’s order denying his petition for equitable relief from a judgment in favor of plaintiff County of Alameda (the County). Weatherford contends that he is entitled to equitable relief from the judgment on the *668 ground that it is not clear and definite on the issue of interest. 1 We a...
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Opinion Following her plea of no contest to one count of possession of methamphetamine, defendant Theresa May Mitchell appeals on the sole ground that her motion to suppress evidence was erroneously denied. We disagree and affirm the judgment. We hold here that pursuant to the arrest of an occupant of a vehicle, police may search the passenger compartment and any containers therein, inclu...
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Opinion Plaintiffs and appellants Louie Vance et al. are mobilehome owners renting spaces in a mobilehome park owned and operated by defendants and respondents Villa Park Mobilehome Estates et al. in the City of Long Beach. Appellants brought this action for declaratory relief and an accounting, alleging that certain provisions of their leases specifying formulas for future rent increases...
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Opinion In this case, we are called upon to interpret a construction lender’s obligation to an “original contractor" under the “stop notice” provisions of former Civil Code sections 3159 and 3162.1 1 The precise issue before us is whether the second, italicized sentence in each of the statutes *686 conditions a construction lender’s obligation to withhold funds aft...
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Opinion by Judge SCHROEDER; Dissent by Judge ALDISERT. Dennis Lee Stephens appeals the district court’s denial of a writ of habeas corpus challenging his California state court convictions for first degree murder with use of a deadly weapon, Cal-Penal Code §§ 187, 12022(b), and assault with a deadly weapon, Cal.Penal Code §§ 245, 1181.6. He was sentenced to state prison for 31 years to life. In th...
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58 F.3d 1441 149 L.R.R.M. (BNA) 2833, 64 USLW 2115,19 Employee Benefits Cas. 1745,95 Cal. Daily Op. Serv. 5331,95 Daily Journal D.A.R. 9121,Pens. Plan Guide P 23911D Ken MacKILLOP; Kathy Morris; Ken Gabriel; CarlWojciechowski; Harold Carlson, as Trustees forthe Oregon Federation of ButchersPension Trust; et al.,Plaintiffs-Appellees,v.LOWE'S MARKET, INC., d/b/a St. Helens Shop N' Kart,...
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Opinion I. Introduction In this action coordinated from separate complaints filed in Alameda, Los Angeles, San Bernardino, and San Diego Counties, plaintiffs (or Card Clubs) obtained an injunction against defendant state and local officials from enforcing prohibitions against the play of jackpot poker. Specifically, in August 1989 through January 1990, plaintiffs filed actions seeking dec...
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Opinion Appellant Isaías Frausto pled guilty to a violation of Penal Code section 264.1, rape while acting in concert. He appeals from an order requiring him to undergo AIDS testing pursuant to section 1202.1 of the Penal Code, arguing that section 264.1 is not specifically listed in section 1202.1 as one of the offenses on which an order for compulsory AIDS testing can be based. We hold that a...
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Opinion Petitioner Angela S. is the mother of two dependent children of the juvenile court, Octavio S. and Melissa S. Pursuant to California Rules of Court, rule 39.IB, petitioner filed a petition for extraordinary relief seeking review of the trial court’s order setting a permanency planning hearing pursuant to Welfare and Institutions Code section 366.26. 2 The hearing is currently schedule...
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59 F.3d 942 33 Collier Bankr.Cas.2d 1574, 27 Bankr.Ct.Dec. 646,Bankr. L. Rep. P 76,579,95 Cal. Daily Op. Serv. 5376,95 Daily Journal D.A.R. 9173 In re John R. LINDSAY, Debtor.John R. LINDSAY; Lindsay Enterprises, Inc., A CaliforniaCorporation; IMA 79-6, A California LimitedPartnership; and, IMA 81-3, ACalifornia LimitedPartnership,Plaintiffs-Appellants,v.BENEFICIAL REINSURANCE COMPANY,...
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Robert Price appeals from a judgment of civil forfeiture against his 29.6 acres of property, including his own barn-residenee, another residence, and outbuildings. Price argues that (1) summary judgment in favor of the United States was improper because its evidence was obtained through an illegal search in violation of the Fourth Amendment, (2) his due process rights were violated when his proper...
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Opinion by Judge Skopil; Dissent by Judge Ferguson. Trident Seafoods Corporation (“Trident”) appeals a civil penalty imposed for violating the Clean Air Act. The issue presented is whether Trident’s failure to notify officials of its intent to remove asbestos constitutes a “one-time” violation or a “continuous” violation for purposes of determining a lawful penalty. The district court concluded t...
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We must decide whether to enforce an arbitration award which grants over $7 million in attorneys’ fees to an attorney notwithstanding his ethical improprieties. I Arizona Electric Power Cooperative, Inc. (“AEPCO”) is a rural electric cooperative, headquartered in Benson, Arizona. Berkeley is a lawyer licensed in Washington, DC, who specializes in regulatory matters pertaining to the production, sa...
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Opinion by Judge KOZINSKI; Dissent by Judge FARRIS. Can an unsecured creditor be better off when the debtor defaults rather than paying off the debt? Yes: Law can be stranger than fiction in the Preference Zone. I Powerine Oil Company (the debtor here) obtained a $250.6 million line of credit from a syndicate consisting of several banks and insurance companies; the loan was secured by most of Pow...
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In this case, we address an important and difficult question involving the qui tam provisions of the False Claims Act, 31 U.S.C. §§ 3729 et seq. We must determine whether the release of a qui tam claim, when entered into without the United States’ knowledge or consent, and prior to the filing of an action based on that claim, is enforceable. We hold that it is n...
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We consider here whether a 5-month sentence for failure to appear for trial violates either the sentencing guidelines or double jeopardy principles where, in a prior ease, the defendant’s sentence was enhanced based on the same conduct. I. Background On June 30, 1992, Defendant Luke Jerni-gan was charged with passing counterfeit notes and conspiracy to possess cocaine with the intent to dis...
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Opinion A judgment was entered against defendants Gussman, Dopp and Stillwater Institute after a jury trial despite the trial court’s discovery that defendants’ attorney was not authorized to practice law. The trial court refused to grant a mistrial and denied a motion for new trial on grounds that the defendants knew or should have known their attorney was not an attorney. Defendant Dopp...
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Opinion Just before midnight on Friday, February 4, 1994, 17-year-old Erik D. Taylor was driving his 2 friends home from a school dance in his *814 Toyota pickup truck. He was not exceeding the speed limit. Scotts Valley Police Officer Hohmann was driving northbound on Scotts Valley Drive, and Taylor’s truck was southbound on the same street. As Hohmann’s car passed by Taylor...
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Petitioner Saeed Foroughi, an alien under a final order of deportation, seeks review of an order of the Board of Immigration Appeals denying his motion to reopen his deportation proceedings. Foroughi moved to reopen so that the Board could consider his application for discretionary relief under section 212(c) of the Immigration Act, 8 U.S.C. § 1182(c). To qualify for relief under that statute, ...
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OVERVIEW Scott M. Karterman was convicted by a jury of two counts of making false statements on his income tax returns. He was acquitted on a count of attempted income tax evasion and two drug-related counts. The district court sentenced him to a 21-month prison term and one year of supervised release, imposed a $10,000 fine, and assessed $8,640.28 for costs. Karterman timely appeals both his c...
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I. OVERVIEW Chapter 7 debtor John L. Glass appeals a decision of the Bankruptcy Appellate Panel (BAP) which reversed the bankruptcy court’s decision overruling the trustee’s objection pursuant to 11 U.S.C. § 522(g) to Glass’s claim of a homestead exemption in property Glass had transferred to his son prior to filing for bankruptcy. We have jurisdiction pursuant to 28 U.S.C. § 158(d), and we a...
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60 F.3d 591 64 USLW 2080, Fed. Sec. L. Rep. P 98,806,32 Fed.R.Serv.3d 144,95 Cal. Daily Op. Serv. 5428,95 Daily Journal D.A.R. 9266 In re GLENFED, INC. SECURITIES LITIGATION.John Paul DECKER; Arnold Cohen; Gary Haskins; LarrySchwartz; Gary F. Young; Elbridge Ruhl Graef, Trustee u/wof Charlotte R. Graef on behalf of themselves and all otherssimilarly situated, Plaintiffs-Appellants,v....
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We reverse the summary judgment the Internal Revenue Service (“IRS”) won below, because there are genuine issues of fact as to whether Mr. Jones was a “responsible person” for certain unpaid trust fund taxes, and whether assessment was timely. I. Facts Mr. Jones and Mr. Russell each owned half the stock in Silver State Airlines, Inc. One served as chairman of the board, the other as president...
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Juan Carlos Rendon-Abundez appeals from his conviction following the district court’s denial of his request for discovery of government records to support his claim that *1002 his prosecution for being a deported alien found in the United States, 8 U.S.C. § 1826(b)(1) and (b)(2), was the result of impermissible selective prosecution on the basis of race. We remand. Since the district court’s ...
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Opinion Aljerome McCain pled guilty to possessing cocaine base in violation of Health and Safety Code section 11350, subdivision (a) and admitted a serious felony prior pursuant to Penal Code 1 section 667, subdivisions (d) and (e). He was sentenced to a total term of 32 months, consisting of the lower term for the crime of possessing cocaine base, which was doubled because of his qualificati...
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62 F.3d 320 In re CHARGE OF JUDICIAL MISCONDUCT. No. 94-80370. Judicial Council forthe Ninth Circuit. July 13, 1995. Before: J. CLIFFORD WALLACE, Chief Judge. ORDER 1 A complaint of misconduct has been filed against a bankruptcy judge of this circuit. Administrative consideration of such complaints is governed by the Rules of the Judicial ...
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Ronald Chick interloeutorily appeals the district court’s denial of a motion to dismiss his criminal prosecution on the basis of double jeopardy. Chick is charged with one count of conspiring to sell illegally modified satellite descramblers in violation of 18 U.S.C. § 371 and § 2512(l)(b), and seventeen counts of selling descramblers in violation of 18 U.S.C. § 2512(l)(b). Chick contends the cri...
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ORDER The judgments of the district court are AFFIRMED. Regarding Appellant’s 28 U.S.C. § 2255 motion, the district court accurately held that Valdivia was not denied effective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The counsel’s actions were not outside the wide range of professionally competent assistanc...
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OPINION I The trial court dismissed the appellant’s adversary action with prejudice, because the appellant had failed to serve the debtors within 120 days as required by Fed.R.Civ.P. 4(j). We AFFIRM. II FACTS Jeffrey E. Waldner and Brenda K. Wald-ner (“Debtors”) were the sole shareholders, officers and directors of Waldner Enterprises, Inc. (“Waldner Enterprises”)...
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59 F.3d 1002 95 Cal. Daily Op. Serv. 5463 GREGORIO T., by and through His Guardian Ad Litem JOSE T.;Xiomara T.; Maria R.; Carlos P., by and throughHis Guardian Ad Litem Ana P., Plaintiffs-Appellees,andCalifornia Association of Catholic Hospitals; City of LosAngeles, Plaintiffs-Intervenors,v.Pete WILSON, Governor, of the State of California; DanielE. Lungren, Attorney General, for the S...
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Opinion I. Introduction This is an appeal from a judgment of the San Francisco Superior Court entered after respondents’ demurrer to the appellant’s complaint was sustained without leave to amend. The case presents the issue of whether a 1993 order of the Nevada County Superior Court, entered in an minor’s personal injury action, and purporting to deny appellant’s quantum meruit lien...
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Opinion This appeal arises out of a freeway collision in which the car driven by plaintiff/appellant rear-ended defendants/respondents’ car. At trial, the issue was whether the accident was a straight *1030 rear-end collision in which appellant was clearly at fault or whether respondent Clifford Alesso, who drove the other car, suddenly changed lanes and cut off appellant. Each side called an...
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Opinion Civil Code section 1719, subdivision (a) 1 provides in part that any person who draws a check that is dishonored due to insufficient funds shall be liable to the payee for the amount owing upon the check and treble damages of at least $100, not to exceed $500. In this section 1719 action, we conclude the maker of a dishonored check may raise defenses under the Uniform Commercial Cod...
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Opinion Defendant was convicted by jury of diversion of construction funds (Pen. Code, § 484b) and petty theft (Pen. Code, § 488). The court struck the theft count and granted defendant probation. On appeal defendant contends there were several instructional errors. We find the *846 failure to give a unanimity instruction when defendant offered differing defenses to various acts that could co...
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OPINION A jury convicted Jorge Calderon of two counts of first degree murder with the special circumstance of multiple murder and one count of grand theft, and he was sentenced to life imprisonment without the possibility of parole. After exhausting his state court remedies, Calderon filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254 (1988). In his petition for habeas relief, ...
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I. James Earl Smith appeals his conviction for bank robbery, entered upon his plea of guilty. He argues that his plea must be set aside because the district court failed to explain the nature of the charges to him in open court, as required by Fed.R.Crim.P. 11(c)(1). We vacate Smith’s plea and conviction, and remand for entry of a new plea and further appropriate proceedings. II. ...
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Opinion by Chief Judge WALLACE; Dissent by Judge PREGERSON. Kimberly Belshe, Director of the California Department of Health Services (Department), appeals from the district court’s order enjoining it from implementing section 54 of California’s Senate Bill 35, Welfare & Institutions Code § 14132(h) (1993) (Bill 35). Bill 35 restricts the eligibility of patients to be treated for certain dental p...
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10 Cal.4th 844 (1995) 897 P.2d 530 42 Cal. Rptr.2d 592 ALFONSO MACIAS et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents. Docket No. S039245. Supreme Court of California. July 17, 1995. *846 COUNSEL Litt, Marquez & Fajardo, Litt & Marquez, Barrett S. Litt, Anne Richardson and Ben Margolis for Plaintiffs and Appellants. Patti A. Goldman, Kriste...
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Opinion The crux of this appeal is whether a municipality, consistent with applicable ordinances and without overreaching areas occupied by state law, can bar a contractor from bidding on its public works projects for five years, on a declaration of irresponsibility for knowingly *1081 filing a false claim. We conclude it can and reverse the order preliminarily enjoining the ...
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Opinion A worker is injured while repairing a cable television line. He sues the general contractor who hired his employer, an independent *1035 contractor, for breach of a nondelegable duty. He asserts that the doctrine of “nondelegable duties” survives Privette v. Superior Court (1993) 5 Cal.4th 689 [21 Cal.Rptr.2d 72, 854 P.2d 721]. It does. The worke...
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OPINION The debtors moved to avoid a judicial lien pursuant to § 522(f)(1) 1 as impairing the debtors’ homestead exemption. The bankruptcy court denied the motion, stating that the issue was controlled by In re Chabot, 992 F.2d 891 (9th Cir.1993). The debtors appeal. We AFFIRM. I.FACTS The facts are not in dispute. The debtors/appellants, Akbar and Manijeh A...
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60 F.3d 616 68 Fair Empl.Prac.Cas. (BNA) 625, 64 USLW 2088,19 Employee Benefits Cas. 1648,95 Cal. Daily Op. Serv. 5541,95 Daily Journal D.A.R. 9429,Pens. Plan Guide P 23911I Paul L. SPINK, Plaintiff-Appellant,v.LOCKHEED CORPORATION; Daniel M. Tellep; Robert A. Furman;Vincent N. Marafino; K.H. Anderson; L. Bernard; R.W.Berry; P.N. Braun-Agel; D.L. Bronco; R.H. Northcutt;W.E. Skowron...
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59 F.3d 1556 64 USLW 2115, 95 Cal. Daily Op. Serv. 5535,95 Daily Journal D.A.R. 9438 Erik C. RISE; David R. Durham; Jeffery F. Rhodes; DavidA. English; and Michael Milligan, Plaintiffs-Appellants,v.STATE OF OREGON; Fred Pearce; Director, Department ofCorrections; Department of State Police; Reginald B.Madsen, Superintendent, Department of State Police;Catherine Knox, Administrator,...
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OVERVIEW Francis L. Gill appeals the District Court of Guam, Appellate Division’s affirmance of his jury conviction in Guam Superior Court for conspiracy to commit theft of immovable property, attempted theft, and conspiracy to tamper with records. We have jurisdiction over this timely appeal pursuant to 48 U.S.C. § 1424-3(c). We affirm the jury conviction on all three charges, but remand for...
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60 F.3d 608 95 Cal. Daily Op. Serv. 5528, 95 Daily JournalD.A.R. 9458Steven Ray LAWSON, Petitioner-Appellee,v.Robert G. BORG, Warden, Respondent-Appellant. No. 95-15062. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 11, 1995.Decided July 18, 1995. Thomas Y. Shigemoto, Deputy Atty. Gen., Sacramento, CA, for respondent-appellant. Dennis P. ...
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Opinion A fast-food restaurant hires a security guard to protect its patrons. Some youths threaten a patron of the restaurant in the presence of the security guard. A fight ensues in which the patron is injured. Under such circumstances there is a duty on the part of the restaurant to protect its patron and there is a triable issue of fact as to whether the security guard acted reaso...
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Opinion Plaintiff Edgemont Community Services District (District) appeals from judgment entered in an action filed against defendant City of Moreno Valley (City) for declaratory relief and an injunction. Under the judgment the District is required to collect from its customers and remit to the City a utility user’s tax imposed by the City on the sewer services rendered by the District to ...
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Opinion Defendant Theodore Whight discovered that the automated teller machine (ATM) card connected to his defunct checking account could still be used to obtain cash at four local Safeway stores. For several weeks he availed himself freely of this happenstance to obtain thousands of dollars. This led to his conviction by a jury of four counts of fraudulent use of an access card or “ATM” ...
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Opinion Appellant Rita Gentry (Gentry) raises virtually every conceivable objection under the California Environmental Quality Act (CEQA) (Pub. Resources Code, § 21000 et seq.) 1 to the approval by respondent City of Murrieta (City) of a plan of respondent McMillin Communities (McMillin) to build 198 homes. The City found that the project, as mitigated, would have no significan...
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Opinion In this opinion, we must determine whether or not the City and County of San Francisco (City) may lawfully prevent persons between the ages of 18 and 20 from entering or remaining on the premises of after-hours clubs in the City. We conclude that the City may do so. *1182 Article 15.2 of the San Francisco Police Code (SFPC) (§§ 1070 through 1070.25) establishes entert...
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Kim Hoa Huynh appeals her conviction for extortion affecting interstate commerce in violation of the Hobbs Act, 18 U.S.C. § 1951. We affirm. I Huynh was employed as a social worker at the Washington Department of Social and Health Services. State and federal law enforcement officers went to Huynh’s office, informed her that she was under arrest for extortion, advised her of her Miranda righ...
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OVERVIEW Francis L. Gill appeals the District Court of Guam, Appellate Division’s reversal of the Guam Superior Court’s order dismissing on double jeopardy grounds the second of two indictments charging Gill with conspiracy to commit theft of government land. The Appellate Division determined that by successfully opposing the government’s motion to consolidate the two indictments, Gill had reli...
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Opinion The Department of Motor Vehicles (DMV) appeals from the superior court’s grant of mandamus overturning the administrative license suspension of respondent Dr. Craig A. Johanson. The court below found Johanson was not properly arrested for driving under the influence of alcohol. We disagree and reverse. Statement of the Case Johanson was arrested on October 21, 1993, for ...
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Opinion Pursuant to a plea agreement, defendant pleaded guilty to second degree vehicle burglary. Defendant was granted supervised probation for three years with one hundred eighty days to be served in the county jail. The court imposed certain conditions on defendant’s probation including the condition that defendant submit to warrantless searches. The court also made a finding that a motor ve...
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Opinion In a postdissolution proceeding, respondent John A. Marshall, Jr. (husband) was ordered to pay appellant Suzanne F. Marshall (wife) $34,966.43 as reimbursement for federal taxes and related costs incurred when she was assessed for a tax liability husband assumed under the dissolution judgment but failed to satisfy. In an effort to enforce the order, wife tried to garnish husband’s...
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Opinion The People appeal the decision of the trial court to sentence Michael Joseph Trausch to county jail after he plead guilty to second degree burglary (Pen. Code, § 459), 1 “a wobbler,” and admitted prior convictions which qualify as “strikes” under the “three strikes” law, section 667, subdivisions (b) through (i). 2 The People contend that because the three st...
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Opinion This appeal raises the issue of when “actual injury” occurs for purposes of the four-year limitations period for legal malpractice actions. *1196 (Code Civ. Proc., § 340.6, subd. (a)(1).) 1 Appellants Aldis and Nancy Baltins sued their former attorney, respondent Duncan M. James, in August 1990. They asserted James negligently advised them in 1984 about tra...
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36 Cal.App.4th 1219 (1995) 42 Cal. Rptr.2d 888 THE PEOPLE, Plaintiff and Appellant, v. JED WILLIAM TEMPLE, Defendant and Respondent. Docket No. F021054. Court of Appeals of California, Fifth District. July 19, 1995. *1221 COUNSEL Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Joel ...
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184 B.R. 356 (1995) In re William W. and Mary SHELLEY, Debtors. William W. and Mary SHELLEY, Appellants, v. John T. KENDALL, Trustee, Appellee. BAP No. NC-94-2059-MeAsV. Bankruptcy No. 94-4-2530. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted February 23, 1995. Decided June 23, 1995. *357 Edward S. Levinson, Oakland, CA, for appellants. Leonardo D. Drubach, Sa...
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OPINION OVERVIEW The debtor filed a chapter 11 petition and ceased business operations eighteen days later. The employees’ benefit plan sought administrative priority payment for the debt- or’s monthly contribution to its employees’ health plan and damages due on default under the terms of the debtor’s unrejected collective bargaining agreement and ERISA. The court allowed only 1...
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60 F.3d 1390 1995-2 Trade Cases P 71,067, Util. L. Rep. P 14,060,95 Cal. Daily Op. Serv. 5642,95 Daily Journal D.A.R. 9617 COLUMBIA STEEL CASTING CO., INC., an Oregon corporation,Plaintiff-Appellee,v.PORTLAND GENERAL ELECTRIC COMPANY, an Oregon corporation,Defendant-Appellant.COLUMBIA STEEL CASTING CO., INC., an Oregon corporation,Plaintiff-Appellant,v.PORTLAND GENERAL ELECTRIC COMPANY, a...
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We reject a federal challenge to the fairness of the Hawaii dental board admissions procedure as applied to Dr. Misischia. Because he did not appeal the state administrative determination in the state courts, the administrative decision therefore has preclu-sive effect. I. Facts. Dr. Misischia, a doctor of dental medicine (D.M.D.), lives in Missouri. He is licensed to practice dentistry in Missour...
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(AMENDED) 3 OPINION This is a case of first impression where a secured creditor has objected to court-ordered adequate protection payments for fear that acceptance of the payments might violate California’s “one action” rule, California Civil Procedure Code § 726, and the related antideficiency statutes §§ 580a, 580b and 580d, and bar foreclosure of its real property col...
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Opinion Defendant Leonard Myers (Myers) appeals from a judgment in favor of plaintiff Fatmeh Badih (Badih) on her cause of action for wrongful discharge in contravention of public policy. In its special verdict, the jury found that Myers had terminated Badih’s employment because she was pregnant. On appeal, Myers contends that the judgment must be reversed because there is no fundamental ...
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*875Opinion The Commission on Judicial Performance (Commission) has filed in this court its recommendation that G. Dennis Adams, a judge of the Superior Court of San Diego County (petitioner), be removed from office. (See Cal. Rules of Court, rule 919(a).)1 In support of its recommendation, the Commission submitted findings of fact and conclusions of law determining that petitioner had committed ...
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Opinion Defendant Jeffrey Hawkins was found guilty by a jury of two counts of first degree murder, as well as one count each of robbery and attempted murder. The jury also found true two special circumstances— felony murder (Pen. Code, § 190.2, subd. (a)(17)(i)) 1 for a murder committed in the course of a robbery, and multiple murder (§ 190.2, subd. (a)(3)). After the first jur...
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Opinion This is an appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P.2d 1071] (hereafter Wende) from a conviction, after a plea of no contest, on charges of robbery (Pen. Code, § 211), attempted carjacking (Pen. Code, §§ 215/664), possession for sale of rock cocaine (Health & Saf. Code, § 11351.5) and child abuse (Pen. Code,...
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Opinion This appeal presents for the first time an occasion to interpret and apply sections 1953.10 through 1953.13 of the Code of Civil Procedure. These sections detail a procedure for establishing the prior existence and authenticity of a private record destroyed in a conflagration or other public calamity. 1 Shirlyn Daddario (plaintiff) fell while skiing at the Snow Valley...
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Opinion John S. Garrison (Garrison) appeals the trial court’s dismissal of his suit against respondent/defendant Board of Directors of the United Water Conservation District (United), following the court’s sustaining of United’s demurrer to Garrison’s first amended petition for writ of mandate without leave to amend. We reverse the judgment of dismissal. Background United held public hearings in...
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60 F.3d 645 95 Cal. Daily Op. Serv. 5687 NATIVE AMERICANS for ENOLA; Cascade Geographic Society;Friends of Enola Hill; Rip Lone Wolf, Plaintiffs-Appellants,v.U.S. FOREST SERVICE, Defendant-Appellee,andCaffall Bros. Forest Products, Inc.; and Ray SchoppertLogging, Inc., an Oregon corporation,Defendants-Intervenors-Appellees. No. 93-36130. United States Court of Appeals,Ninth Circ...
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Jimmy Byrnes appeals the district court’s summary judgment in favor of the Secretary of Health and Human Services in his action challenging the denial of his application for supplemental security income (SSI) benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381. The administrative law judge (ALJ) found Byrnes’s subjective complaints of diabetic episodes incredible. Byrnes argues t...
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OVERVIEW Lonnie L. Wharf (‘Wharf’) sued his employer, Burlington Northern Railroad (“Burlington”), under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, after a workplace injury to a finger on his left hand. A jury trial was conducted by a magistrate of the United States District Court for the Eastern District of Washington. The jury, finding that Burlington’s negligence...
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Clinton and Rose Mary Love brought suit against the United States and various federal agents seeking damages resulting from the manner in which their farm equipment and livestock were foreclosed upon by the Farmers Home Administration (FmHA). The Loves asserted claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 ...
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Opinion This petition presents a challenge to the constitutionality of the statutory framework for certifying 14- and 15-year-old offenders for trial as adults. Briefly summarized, since 1976, minors who are 16 or older at the time of committing a crime can under certain circumstances be tried as adults in criminal court, but 14- and 15-year-olds have always been tried as juveniles. As of...
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Opinion Appellant/petitioner Maryemma Hargrave appeals from a postjudgment order enforcing obligations under a 1983 dissolution judgment. Appellant contests the court’s power to impose liability for delinquent income taxes on one declared to be an “innocent spouse” by the Internal Revenue Service. Appellant also disputes the court’s allocation of interest due on the tax liability, and its...
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Opinion Appellants the Salvation Army, Guide Dogs for the Blind, Inc., and Masonic Homes of California, charitable beneficiaries under a testamentary trust (Trust B) of Corinne W. Reisinger, appeal an order distributing the trust’s assets. Respondent Kristen A. Wheaton Price is one of five residuary beneficiaries under Trust B. Appellants contend the court erred in ruling that the interest of t...
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Opinion Charles Okoli filed a charge of discrimination against his employer, Lockheed Technical Operations Company (Lockheed), with the California Department of Fair Employment and Housing (DFEH). The charge alleged that Okoli’s supervisor had denied him a promotion based on Okoli’s race and national origin and had made derogatory comments to him. While DFEH was investigating the charge, ...
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Opinion In this case we are called upon to consider the consequences of the voluntary dismissal of a postarbitration request for a trial de novo. A judicial arbitrator’s award was issued in favor of Susan Kane and Theodore Abbott (Kane) in a case brought by Miriam G. Calderon and Orlando Espinoza (Calderon). Calderon, the losing party, then sought a trial de novo. (Code Civ. Proc., § 1141...
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Opinion In 1988, Robert Anthony Von Villas and codefendant Richard Ford were convicted, following a joint trial before separate juries, of conspiracy to commit murder (Pen. Code, §§ 182, 187) and the first degree murder of Thomas Weed. (Pen. Code, § 187.) Each jury found the special circumstance allegation that the murder was committed for financial gain to be true. (Pen. Code, § 190.2, s...
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60 F.3d 1411 64 USLW 2070, 95 Cal. Daily Op. Serv. 5761,95 Daily Journal D.A.R. 9798 VOTING RIGHTS COALITION; Coalition for an African-AmericanCommunity Agenda; League of Women Voters of California;California Common Cause; '94 Committee; Stella Dominquez;Cynthia Moreno; and Veronica Moreno, Plaintiffs-Appellees,v.Pete WILSON, Governor of the State of California; TonyMiller, Acting Se...
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60 F.3d 647w 95 Cal. Daily Op. Serv. 5747, 95 Daily JournalD.A.R. 9802ALASKA WILDERNESS RECREATION AND TOURISM ASSOCIATION;Organized Village of Kake; Southeast Alaska ConservationCouncil; Natural Resources Defense Council; The WildernessSociety, Plaintiffs-Appellants,v.Gary A. MORRISON, Forest Supervisor, Chatham Area, TongassNational Forest; Abigail Kimbell, ForestSupervisor, Stikine Area...
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Tony E. Collins was convicted by a jury of violating 18 U.S.C. §§ 922(g)(1) and 922(g)(2), prohibiting felons and fugitives from possessing firearms. He was sentenced as an armed career criminal pursuant to 18 U.S.C. § 924(e)(1). He contends on appeal that his prior felony convictions cannot serve as predicate offenses for sections 922(g)(1) and 924(e) because his civil rights, including the ri...
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Opinion by Judge FLOYD R. GIBSON; Dissent by Judge FERGUSON. Creative Technology appeals the district court’s forum non conveniens dismissal of its copyright infringement action. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 (1988), and we affirm. I. BACKGROUND Appellant Creative Technology, Ltd. (Creative) and Appellee Aztech Systems Pte. Ltd. (Aztech) are competing Singapor...
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OVERVIEW In January 1994, a jury convicted Steaven M. Basinger of establishing a drug manufacturing facility in violation of 21 U.S.C. § 856(a)(1), and manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1). He was sentenced to 151 months on each count, to be served concurrently. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. FACTS Steaven M. Basin...
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Opinion Plaintiff and appellant Meydad Cohen (Cohen) appeals an order dismissing his personal injury action against defendant and respondent Hughes Markets, Inc. (Hughes) for lack of prosecution. 1 The issue presented is whether the trial court’s ruling constituted an abuse of discretion. We conclude the trial court erred in dismissing the action for lack of prosecution ...
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Opinion Introduction Defendants are members of the Naevus Syndicate which owned a stallion named Naevus, retired from racing to stud. Plaintiffs are Australian horse breeders and their joint venturer, who negotiated an agreement with the manager of the Naevus Syndicate to have Naevus transported to Australia to breed with mares there during the Southern Hemisphere breeding season. At...
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Opinion This appeal arises from an action for inverse condemnation. Plaintiffs’ complaint alleged an impairment of access from their property onto Flower Street caused by the construction of the Long Beach-Los Angeles Rail Transit Project known as the “Blue Line.” The trial court found no substantial impairment of access and denied relief. We affirm. Facts and Proceedings Below Plaintiffs, Stanle...
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Opinion Introduction Following a court trial, defendant Larry W. Fraize was convicted of two counts of violating Penal Code section 288a, subdivision (e) which prohibits a jail inmate from engaging in oral copulation, even if consensual. On this appeal, defendant contends the statute does not apply to his actions because the statute only criminalizes oral copulation by a jail inmate and at th...
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Opinion Defendant and appellant Terry L. Douglas appeals from the judgment entered following his conviction by jury of six counts of second degree robbery with the personal use of a firearm (counts 1, 4-8—Pen. Code §§211, 12022.5, subd. (a)) and two counts of attempted second degree robbery with the personal use of a firearm (counts 3 & 9—Pen. Code, §§ 664/211, 12022.5, subd. (a)), and th...
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This case requires us to reconcile the mandatory arbitration mechanism of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq., and the statutory protections provided by Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. The issue of first impression is whether a Title VII claim of employment discrimination is a “minor dispute” under the RLA and therefore sub...
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ORDER The memorandum disposition filed June 22,1995, is redesignated as an authored opinion by Judge Gibson. OPINION Albany Insurance Company appeals the district court’s grant of summary judgment in favor of the M.V. Istrian Express in Albany’s in rem action against the M.V. Istrian Express for damage to goods sustained in transport. We reverse. The district court granted the M.V. Istr...
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OPINION OVERVIEW Lessor’s guarantors under a commercial real property lease appeal an order of the bankruptcy court allowing them an unsecured claim for damages due to termination of the lease. The court limited all damages by the provisions of § 502(b)(6) 1 and did not include amounts under various nonrental covenants within the definition of “rent reserved” under the...
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Debtor appeals the bankruptcy court’s orders overruling his objection to his employee’s claim for indemnification, and denying his motion for reconsideration. We AFFIRM. STATEMENT OF FACTS Charles Ankeny (“Ankeny”) was president and largest shareholder of Willett’s Brewing Company (“Willett’s”), a restaurant and mi-erobrewery, in Napa, California. Stephen Meyer (“Meyer”) was employed ...
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ORDER On June 8,1995, this court issued an order directing appellants to pay the filing fees for this appeal or file a motion for leave to appeal in forma pauperis. Appellants’ response to that order asserts that they were proceeding in the district court in forma pau-peris, and that such status continues automatically for the appeal pursuant to Fed. R.App.P. 24(a). We hold that the district ...
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Opinion This action for malicious prosecution, abuse of process and intentional infliction of emotional distress had its genesis more than 15 years ago. It is the fourth in a series of related lawsuits. Appellant Thomas M. Bells appeals from a judgment of dismissal entered upon the sustaining of a demurrer without leave to amend in favor of respondents Seymour Rosenblum, 1 Cres...
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Opinion In these two related appeals, appellants Metro-Goldwyn-Mayer, Inc. and Credit Lyonnais Bank Nederland N.V. (CLBN) seek to overturn the trial court’s denial of two motions to disqualify counsel for defendants, Christensen White, Miller Fink & Jacobs (hereafter referred to as Christensen White or the Christensen firm). We reverse the judgment in case No. B084939. The appeal in ...
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Opinion A. M. Castle & Co. (Castle) appeals after the trial court denied its claim for a refund of corporate franchise taxes for the tax years 1975 through 1978. The court concluded Castle was unitary with its wholly owned subsidiary, Hy-Alloy Steels Co. (Hy-Alloy), and found that California could therefore include Hy-Alloy’s income in its tax calculation, even though Hy-Alloy did not dir...
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Opinion With a blood-alcohol level of .22 percent, defendant and appellant Kenneth Autry recklessly drove on a freeway, swerved into the median strip, struck and killed two highway construction workers, and injured his two passengers. A jury convicted appellant of two counts of second degree murder (People v. Watson (1991) 30 Cal.3d 290 [179 Cal.Rptr. 43, 637 P.2d 27...
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This case involves a claim by a logging contractor against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., for property damage sustained by his road grader while it was parked in a national forest. FACTS During the summer of 1989, a timber sale and a ponderosa pine tree study required logging in the same area of the Colville National Forest in Washington state...
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This is a proceeding brought by the United States on behalf of the United Kingdom to extradite James J. Smyth to Northern Ireland. Smyth was convicted of the attempted murder of a prison officer in Belfast, Northern Ireland in 1978 and sentenced to 20 years’ imprisonment. He escaped from the Maze Prison in Northern Ireland in September of 1983 and arrived in San Francisco several months later. The...
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Nevada state correctional officers Robert Meecham, Daniel Morris, and Glen Cox appeal the district court’s denial of their motion for reconsideration of the district court’s order denying their motion for summary judgment. Inmate Charles L. Robins sued the correctional officers for violating his Eighth Amendment rights, pursuant to 42 U.S.C. § 1983. Robins was injured when bird shot fired by Meec...
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In this Federal Tort Claims Act action, we must decide whether the United States can be held liable for its alleged negligence in issuing a permit to a bulk mail delivery driver who, while driving a mail truck under the influence of drugs and alcohol, ran a stop light and crashed into a car resulting in the deaths of two passengers, Lesley Hines and her daughter Alexis. Lesley Hines’ husba...
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Sabrina Johnson (“claimant”) appeals the denial of her claim for social security disability benefits. The final decision of the Secretary of Health and Human Services was affirmed by the district court. We affirm. FACTS AND PROCEDURAL HISTORY On March 3, 1981, claimant injured her back while lifting her child. To be eligible for disability benefits, claimant had to establish permanent disability b...
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We consider whether a tying arrangement foreclosing a single customer can ever affect a “not insubstantial” volume of commerce and so be illegal per se under the Sherman Act, § 1 (15 U.S.C. § 1). Datagate, Inc. appeals the district court’s order granting summary judgment in favor of Hewlett-Packard Company (“HP”) on Datagate’s claim that HP imposed illegal tying arrangements on its c...
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OPINION AND ORDER Defendants Schools Excess Liability Fund’s and Employers Reinsurance Corporation’s motions to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure having come before the Court, and the Court, having considered the pleadings and having had the benefit of oral argument of counsel, grants the motions to dismiss. I. General Star Indemnity Compa...
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Opinion The juvenile court found that Alejandro G. committed two counts of assault with a firearm, one against Darrick Freeman and one against Tony Campbell (Pen. Code, 1 § 245, subd. (a)(2)), discharged a firearm at an unoccupied motor vehicle (§ 247, subd. (b)), and, in a separate incident, used words in a public place that were inherently likely to provoke an immediate violent reaction. 2...
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*144 Opinion The Santa Cruz Redevelopment Agency (Agency) sought an easement over a private parking area owned by appellants. 1 Agency adopted a resolution of necessity and then filed a complaint in eminent domain. After prohibiting appellants from introducing any evidence except for a four-page document, the trial court ruled that Agency possessed the right to take. C...
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Opinion In this case, we confront a narrow but important issue: are individual members of an elected school board immune from a suit seeking damages against them personally for their successful votes to terminate the employment of the school district’s superintendent, even when the complaint *976 alleges race and age discrimination in violation of California’s Fair Employment...
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Opinion Vacaville Unified School District (hereafter School District) appeals a judgment awarding damages to a former student for injuries she suffered in an attack by another student. The plaintiff, Tracy Rae Skinner (hereafter Tracy or plaintiff), appearing through her guardian ad litem, Linda Skinner, alleged a cause of action for negligence against the School District and a separate c...
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I agree with the majority that a person may be armed in the commission of a continuing drug offense at any time during the offense, not only at the time of arrest or search. To the extent my opinion for the Court of Appeal in People v. Balbuena (1992) 11 Cal.App.4th 1136 *1007[14 Cal.Rptr.2d 640] appeared to suggest otherwise, the suggestion was inadvertent. I also agree with the majority’s clear ...
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Opinion California Youth Authority inmates Freddie Chacon and Raul Alberto Lopez kidnapped a librarian during an attempted escape. They inflicted “bodily harm” and exposed her to a “substantial likelihood of death.” Appellants were apprehended, convicted, and sentenced to state prison for life without the possibility of parole. The amended information charged appellants with escape by means of fo...
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Opinion An insurer which had issued a directors and officers (D & O) liability policy sought a summary judgment in a bad faith action brought by three director insureds who alleged that the insurer had unreasonably failed to defend or indemnify them in a timely manner thus causing them economic loss and emotional distress. The trial court denied the summary judgment and the insurer seeks ...
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Opinion Petitioner Glen Ludwig, defendant in the action below, seeks a writ of mandate to compel the trial court to grant his special motion to strike under Code of Civil Procedure section 425.16. 1 We conclude that real party the City of Barstow 2 , plaintiff below, has failed to show a “probability” of success on the merits within the scope of the statute, and that...
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Opinion Defendant and appellant Manuel Ranjel Madrigal appeals from a judgment following revocation of his probation. We conclude the *794 trial judge acted in excess of his jurisdiction when he revoked defendant’s probation, after defendant’s probation violation matter had been duly assigned to another judge in accordance with local court rules. We reverse. Facts and Procedural Background ...
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Opinion by Chief Judge WALLACE; Dissent by Judge KOZINSKI. Cohen brought a class action against the Resolution Trust Corporation (RTC), in its capacity as conservator of Imperial Savings Association (Imperial), for bonus compensation allegedly owed to himself and similarly situated Imperial employees pursuant to a corporate bonus plan. Summary judgment was entered by the district court in favor of...
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Edgardo Manguin Alquisalas, a native and citizen of the Philippines, appeals the Board of Immigration Appeals’ (“BIA”) denial of his motion to reopen deportation hearings for a consideration of his application for a waiver of deportation under 8 U.S.C. § 1251(f)(1). The BIA refused to grant the motion because it found Alquisalas’ 1984 marriage in the Philippines was entered into for the purpose...
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OVERVIEW On June 24, 1987, Steven Kelley was an inmate at Folsom Prison, in the Security Housing Unit. The unit was in a lockdown state. Workers from Lawson Mechanical Contractor (“Lawson”) were working on the air supply ducts. Kelley complained to California Department of Corrections (“CDC”) Officers Hudson and Ferryance that fumes were entering his cell, and requested that they let him out. T...
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OPINION I The Chapter 7 trustee appeals from a summary judgment in a preference action. We REVERSE. II FACTS National Lumber & Supply, Inc. (“Debt- or”) was in the retail hardware and home improvement business. The Installers installed garage doors for National Lumber’s customers. Orange Commercial Credit (“Orange”) was in the business of purchasing or factoring a...
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OVERVIEW Plaintiffs-Appellants (“Appellants”) are thirty-two property owners who sold property in Oregon and Washington to Butterfield Savings & Loan (“Old BSL”) in exchange for preferred stock in the bank holding company that was the sole owner of Old BSL. Shortly thereafter, Old BSL was declared insolvent and was placed into a receivership by federal banking regulators. As a result, the bank hol...
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Opinion River Valley Preservation Project (RVPP) appeals an order denying its petition for writ of mandate to require the Metropolitan Transit Development Board (MTDB) to prepare a supplemental or subsequent environmental impact report (SEIR) with respect to the Mission Valley West Light Rail Transit Project (LRT or Project). RVPP also appeals an order awarding MTDB its costs in preparing...
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Opinion This appeal is brought by the plaintiffs from a summary judgment in favor of all defendants. Plaintiffs, purchasers of a residence in *606 the City of Poway, sued defendant sellers as well as the sellers’ real estate representatives. The trial court ruled that no triable issues of fact existed as to certain crucial issues upon which the plaintiffs’ complaint depended,...
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Opinion This appeal is from a final order of dismissal after appellants Claire Levine and Passport Auto Shippers, Inc. (collectively appellants) failed to bring their action to trial within five years from the date it was *131 initially filed. 1 Appellants challenge an order made by the trial court relating to an award of attorney fees in favor of respondents and a...
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Opinion Brandon Lee Branco (hereafter Branco) appeals from a summary judgment in favor of Kearny Moto Park, Inc. (hereafter KMP), Debbie Badders, Jerry Badders, the American Bicycle Association (hereafter ABA), and the City of San Diego (hereafter sometimes referred to collectively as defendants) 1 arising from Branco’s complaint alleging, inter alia, that the negligent design of an expert ca...
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Opinion A jury convicted defendant Billy Joe Jeffery, Jr., of manufacture of methamphetamine (Health & Saf. Code, § 11379.6), possession of methamphetamine for sale (Health & Saf. Code, § 11378), and five counts of sale of methamphetamine (Health & Saf. Code, § 11379). In a bifurcated trial, the court found defendant possessed in excess of three pounds of methamphetamine for sale. (Health...
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Opinion This action involves a dispute over the allocation of liability between two insurance companies which had insured a single *198 insured, Hacienda Roofing, Inc. (Hacienda). Appellant National American Insurance Company of California (NAICC) insured Hacienda under two liability policies covering the 1984-1985 and 1985-1986 periods. Those policies contained a “broad-form...
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61 F.3d 731 17 ITRD 1871, 95 Cal. Daily Op. Serv. 5949,95 Daily Journal D.A.R. 10,210 PENTAX CORPORATION, a Delaware corporation, Plaintiff-Appellant,v.Donald W. MYHRA, in his official capacity as DistrictDirector of Customs for the District of GreatFalls, MT; U.S. Customs Service, anagency of the U.S.,Defendants-Appellees. No. 94-35277. United States Court of Appeals,Ninth Circui...
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Opinion In Planned Parenthood Shasta-Diablo, Inc. v. Williams (1994) 7 Cal.4th 860 [30 Cal.Rptr.2d 629, 873 P.2d 1224] (Planned Parenthood I), this court upheld an injunction limiting the protest activities of petitioners, anti-abortion activists, to the sidewalk across the street from a women’s health clinic operated by Planned Parenthood, Shasta-Diablo, Inc. *1012(Planned Parenthood). Thereafte...
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Opinion Has a trustee the right to appeal an order determining that a trust beneficiary’s proposed claim would not violate the trust’s no *1077contest clause? For the following reasons, we conclude the trustee does. Accordingly, we reverse the Court of Appeal, which held to the contrary. Background. 1 On August 23, 1992, Donald R. Scott Goulet (Goulet) and Esther Montello (Montello), acquaint...
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10 Cal.4th 1043 (1995) 898 P.2d 891 43 Cal. Rptr.2d 445 Adoption of MICHAEL H., a Minor. JOHN S. et al., Plaintiffs and Appellants, v. MARK K., Defendant and Respondent. Docket No. S039871. Supreme Court of California. July 31, 1995. *1047 COUNSEL Janis K. Stocks, Douglas R. Donnelly, Orrick, Herrington & Sutcliffe, William F. Abrams and Carl W. Chamberlin for Plaintiffs and Appellants. Eliza...
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Opinion We hold that the People have a right to appeal an order by the juvenile court sustaining, without leave to amend, a demurrer to an enhancement allegation pled in a petition brought pursuant to Welfare and Institutions Code section 602. We further hold that Penal Code section 12022.1 applies to a minor who has been released from custody, pending a jurisdictional hearing, under a “g...
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Opinion In this case we hold an allegation that, among other breaches of professional duty, a lawyer charged a client excessive, unreasonable or unconscionable fees for professional services does not take the action outside the one-year statute of limitations for wrongful acts or omissions by an attorney in the performance of professional services. As to such a claim, we further hold the ...
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Opinion Gloria Ann Graham is a beneficiary of an inter vivos trust created by her parents, who are now deceased. Graham filed an application *252 seeking a determination under Probate Code section 21320 1 of whether any of the claims asserted in her proposed petition to determine the validity of certain trust provisions would be a contest within the meaning of the ...
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*223 Opinion vThomas Hill challenges his sentence under the new so-called “three strikes” law (Pen. Code, § 667, subds. (b)-(i); Stats. 1994, ch. 12, §§ 1-2). He received his first “strike” in 1991 when he was convicted of robbery (Pen. Code, §211). In the spring of 1994, he was charged in separate complaints with two new felonies, possession of cocaine (Health & Saf. Code, ...
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Opinion Thomas Smith, former pharmacist-in-charge of the Parkway Pharmacy in San Diego (Parkway), appeals a judgment denying his petition for a writ of administrative mandamus. Smith seeks to set aside a decision of the California State Board of Pharmacy (Board) adopting a decision of an administrative law judge (ALJ) revoking his license to practice pharmacy. The ALJ found Smith’s licens...
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62 F.3d 299 95 Cal. Daily Op. Serv. 6005 COMPASSION IN DYING, a Washington nonprofit corporation;Jane Roe; John Doe; James Poe; HaroldGlucksberg, M.D., Plaintiffs-Appellees,v.STATE OF WASHINGTON; Christine Gregoire, Attorney Generalof Washington, Defendants-Appellants. No. 94-35534. United States Court of Appeals,Ninth Circuit. Aug. 1, 1995. Prior report: 49 F.3...
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We review in this appeal a district court’s decision to set aside a verdict in favor of a defendant in a wrongful death action after the court discovered that defendant’s in-house counsel participated in a scheme to defraud the court. The court ordered a new trial over defendant’s objection that its conduct did not rise to the level of fraud upon the court, and even assuming that it did, that a...
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Ronald Branson appeals pro se the district court’s dismissal of his pro se 42 U.S.C. § 1983 civil rights action and award of attorney’s fees to defendants pursuant to 42 U.S.C. § 1988. We affirm the district court’s dismissal of Branson’s claim, but vacate the grant of attorney’s fees. I. Branson’s § 1983 claim arises out of a purported tort suit that he filed in propria persona in California stat...
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62 F.3d 294 149 L.R.R.M. (BNA) 3058, 130 Lab.Cas. P 57,964,95 Cal. Daily Op. Serv. 5996,95 Daily Journal D.A.R. 10,325,Pens. Plan Guide P 23911X CONTRACT SERVICES NETWORK, INC., a New York corporation;Preferred Employer Services, Inc., a California corporation;Contract Services Union, Local 211, a Division of FinancialConsultants Guild of America, Inc., an Oklahoma not forprofit corporati...
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Opinion Denise Lambe filed an order to show cause for modification of a support order for her allegedly disabled adult child. Clement Meehan, Lambe’s ex-husband and father of the child, filed a motion to dismiss the order to show cause based on a previous stipulation between Lambe and himself, which terminated support as of a definitive date and waived future family law court jurisdiction...
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Opinion Kali D., a minor (appellant), admitted automobile burglary (Pen. Code, 1 § 459) as alleged and, after a jurisdictional hearing, the court found true allegations of forcible rape (§ 261, subd. (a)(2)), possession of a controlled substance (Health & Saf. Code § 11350), and receiving stolen property (§ 496). The court found insufficient evidence to sustain an additional th...
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Opinion A workers’ compensation judge (WCJ) apportioned 50 percent of applicant’s permanent disability to subsequent noncompensable events—applicant’s pregnancy and unemployment—relying on Labor Code section 4750.5. Applicant petitioned for reconsideration, which the Workers’ Compensation Appeals Board (Board) denied. Applicant then petitioned for a writ of review, which this court grante...
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Opinion In this case we decide that the doctrine of unconscionability applies to invalidate an express condition on transfer in a commercial lease, despite the Legislature’s broad authorization of transfer restrictions and reaffirmation of the principle of freedom of contract in a commercial setting. Citing an express clause in the lease, the lessor of a shopping center refused to allow a...
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Kim Lipsey appeals his sentence under the Sentencing Guidelines following his guilty plea conviction for armed bank robbery. He argues that a two-level enhancement pursuant to USSG § 3C1.2 1 for reckless endangerment and a five-level enhancement pursuant to § 2B3.1(b)(2)(C) for brandishing a weapon were clearly erroneous. He also argues that the district court’s refusal to grant him release pen...
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ORDER The order denying the petition for rehearing and rejecting the suggestion for re hearing en banc, filed on July 5, 1995, is ordered published, along with Judge Reinhardt’s dissent from the order rejecting the suggestion for rehearing en banc. Before: Thomas TANG, Stephen S. TROTT, and Ferdinand F. FERNANDEZ, Cii’cuit Judges. ORDER The panel has voted to deny rehearing and to reject rehearing...
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Petitioner-Appellant Robert Turner appeals the district court’s denial of his petition for a writ of habeas corpus arising from his state court conviction for felony murder, robbery, burglary, and use of a dangerous weapon in committing a felony. Turner alleges that he was convicted in violation of his federal constitutional rights because (1) the prosecutor impermissibly used peremptory challe...
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61 F.3d 1402 32 Fed.R.Serv.3d 1342, 40 Cont.Cas.Fed. (CCH)P 76,811,95 Cal. Daily Op. Serv. 6063,95 Daily Journal D.A.R. 10,411 UNITED STATES of America, ex rel. Murray W. LINDENTHAL;Donald B. Willis, Plaintiffs-Appellants,v.GENERAL DYNAMICS CORPORATION, Defendant-Appellee.UNITED STATES of America, ex rel. Murray W. LINDENTHAL;Donald B. Willis, Plaintiffs-Appellees,v.GENERAL DYNAMICS CORPOR...
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Opinion In this case, we hold that Contra Costa Water District (District), a county water district 1 formed under Water Code section 30000 et seq., and expressly authorized by statute (Wat. Code, § 31483) to issue revenue bonds under the Revenue Bond Law of 1941 (Gov. Code, § 54300 et seq.) to finance construction of facilities for the storage, transmission, distribu...
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Opinion After plaintiff Honey Baked Hams, Inc. (HBH), voluntarily dismissed its action for unlawful detainer against defendant E. Robert Dickens, the trial court awarded the defendant his attorney fees pursuant to the express terms of the commercial lease between the parties. HBH appeals from the order, claiming the defendant may not recover attorney fees because HBH voluntarily dismissed...
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*488 Opinion Appellant Leo Anthony Goodloe was convicted by a jury of rape and assault with force likely to produce great bodily injury. (Pen. Code, §§261, 245, subd. (a)(1).) 1 Intentional personal infliction of great bodily injury enhancement allegations were found true as to each offense. (§§ 12022.8, 12022.7, subd. (a).) At the bifurcated second phase of the trial, the jury found true a...
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Opinion Welfare and Institutions Code section 602 1 petitions were filed against Benjamin P. and Ricardo C., respondents, charging each of them with the felony of willingly setting fire to and burning a structure, Citrus Middle School. 2 In addition, each was charged with misdemeanor malicious destruction of personal property. The trial court granted their motions to...
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Opinion The Department of Children and Family Services, represented by County Counsel, filed a petition for a writ of mandate accompanied by a request for an order changing the placement of Aquela P. (known to her family as Amber) or, in the alternative, for an order staying enforcement of an order of the juvenile court which permitted Hellen Jones, Amber’s great-aunt and court-appointed foster mo...
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Opinion In this decision, we hold that a defendant who provokes a gun battle by shooting at a victim may be guilty of proximately causing the murder of the victim, even if the victim is killed by shots fired by a third party during the gun battle. We also hold that, in such a situation, CALJIC No. 8.12 is properly modified by deleting the requirement, imposed in other contexts, that the d...
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Per Curiam; Concurrence by District Judge McLAUGHLIN. The appellant Connie Wray arrived at the emergency room of St. Mary’s Hospital in Reno, Nevada, on March 31, 1985, suffering from severe abdominal pain and low blood pressure. Wray was twenty-eight to twenty-nine weeks pregnant. As she was waiting in the emergency room, she went into shock. *1416Attending physicians diagnosed abruptio placenta...
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62 F.3d 1138 64 USLW 2147, 95 Cal. Daily Op. Serv. 6115,95 Daily Journal D.A.R. 10,470 UNITED STATES of America, Plaintiff-Appellee,v.George KHOURY, Defendant-Appellant. No. 94-50394. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 4, 1995.Decided Aug. 3, 1995. Michael J. McCabe, San Diego, CA, for defendant-appellant. Amalia L. Meza, A...
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Opinion Have the City of Monterey and the Office of Parking Violations (collectively Monterey) afforded liana Love (Love) due process by requiring her to deposit the amount of the parking penalty on a parking ticket in order to contest it at an administrative hearing? The answer is yes, according to the First District Court of Appeal (Division One) in Tyler v. County of A...
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Opinion Plaintiff Sang Y. Han (plaintiff) appeals from an order which denied his petition for relief from failure to file a timely tort *555 claim with defendant, the City of Pomona. The trial court found that plaintiff showed a lack of diligence throughout the nearly four and one-half years between the time plaintiff’s cause of action arose and the day his petition for relie...
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Opinion S. S. (appellant) was adjudged a ward of the court based on his participation in the theft of an automobile. On appeal he challenges an *545order requiring him to make restitution to the victim. He contends that the amount of the victim’s losses was not adequately proven at the restitution hearing and that the court erred by declaring his obligation “joint and several” with that of anothe...
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OVERVIEW Catherine Kearns (“Kearns”) was convicted of conspiring to distribute marijuana, in violation of 21 U.S.C. §§ 841 and 846, and of possessing marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. The district court sentenced Kearns to a 33-month prison term and a 60-month term of supervised release on each count, to run concurrently. As to co...
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60 F.3d 1460w 27 Bankr.Ct.Dec. 785, 95 Cal. Daily Op. Serv. 6164,95 Daily Journal D.A.R. 10,539 In re Aarl HUNTER, Debtor.Sherwin KALT, Appellant,v.Aarl HUNTER, individually and as Trustee of the HunterFamily Trust, and as Trustee of the Aarl R.Hunter, D.D.S., Inc. Profit and PensionFund, Appellees. No. 93-17327. United States Court of Appeals,Ninth Circuit. Argued and Submitte...
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69 F.3d 1432 1995 A.M.C. 2908, 64 USLW 2283, 95Cal. Daily Op. Serv. 8322,95 Daily Journal D.A.R. 14,405 SARATOGA FISHING CO., Plaintiff-Appellee,v.MARCO SEATTLE INC., Defendant-Appellant,andJ.M. Martinac & Co.; Caterpillar Tractor Co.; SouthwestMarine Hardware, Inc., Defendants.SARATOGA FISHING CO., Plaintiff-Appellant,v.MARCO SEATTLE INC.; Southwest Marine Hardware, Inc.;Caterpilla...
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Federal prisoner and alien Edmundo Campos appeals the district court’s summary judgment in favor of the Immigration and Naturalization Service (“INS”) in Campos’ mandamus action seeking an expedited deportation hearing pursuant to 8 U.S.C. § 1252(i). We must decide whether Congress in 1994 legislatively overruled the law of this circuit that permitted an incarcerated alien to seek such mandamus...
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This appeal requires us to decide when there has been “final action” on an official request for evidence in a foreign country, where the court has suspended the running of the statute of limitations pursuant to 18 U.S.C. § 3292. 1 Stephen Bisehel was convicted of numerous offenses arising out of “broker’s crosses” on investments sold by La Jolla Trading Group, which he owned. Becau...
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Circuit-wide discovery of the criminal history and prior deportations of defendants prosecuted for illegal reentry by a deported alien in violation of 8 U.S.C. § 1326 was ordered by the district court before our decision in United States v. Armstrong, 48 F.3d 1508, 1512 (9th Cir.1995) (en banc). The government declined to comply, and Maximi-liano Gomez-Lopez’s indictment was dismisse...
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62 F.3d 307 95 Cal. Daily Op. Serv. 6175, 95 Daily JournalD.A.R. 10,563UNITED STATES of America, Plaintiff-Appellee,v.Joel CRETACCI, Defendant-Appellant. No. 94-10235. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 14, 1995.Decided Aug. 4, 1995. Thomas Hoidal, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant. Stanley L. P...
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Opinion This is an appeal from an order denying a motion to compel arbitration. Factual and Procedural Background In October 1993, respondents Hayes Children Leasing Company (hereafter, Hayes Leasing) and Automatic Rain Company, Inc. (hereafter, Automatic Rain) filed an action against NCR Corporation and several of its employees, Gregory Peck, Jean Claude Littee and M. Ted Senem...
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*599 Opinion Petitioner Dexter L. Homan asks this court to declare unconstitutional a provision of the state Budget Act which excludes persons convicted of certain sex crimes from receiving family visits in prison. We agree with petitioner that the provision violates the California Constitution’s “single subject” rule and direct respondent James Gomez, as Director of the Californ...
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Opinion Plaintiff William C. Shoemaker, M.D., was removed from the administrative positions he held with the Charles R. Drew University of Medicine and Science (the University) and the Los Angeles County Martin Luther King, Jr./Drew Medical Center (the Medical Center). Upon Shoemaker’s application, the trial court issued a mandatory preliminary injunction reinstating him to those position...
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OPINION Lawrence Diamant (“trustee”) is the Chapter 7 trustee for the debtor, Advent Management Corporation (“Advent”). The trustee commenced an action against Taylor Associates (“Taylor”) to recover sums alleged to be either avoidable preferences under section 547, 1 or fraudulent transfers under section 548. The bankruptcy court granted partial summary judgment to the tru...
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I. OVERVIEW Gerald E. Alexander appeals the district court’s summary judgment in favor of the United States in his personal injury action. Alexander was injured aboard the S.S. Santa Adela which was chartered to the United States by his private employer. The district court held the government was not responsible for Aexander’s injuries because it was not in operational control of the ship ...
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After being arrested in Arizona, indicted in California and subsequently re-indicted in Arizona, Carlos Antonio Duque was tried and convicted of possession with intent to distribute cocaine and conspiracy to do the same, in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. Duque was arrested while unloading cocaine from a truck that had been driven from Mexico to the United States at the be...
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62 F.3d 1152 95 Cal. Daily Op. Serv. 6229, 95 Daily JournalD.A.R. 10,612UNITED STATES of America, Plaintiff-Appellee,v.Johnny Mateo VANCE, Defendant-Appellant. No. 94-10245. United States Court of Appeals,Ninth Circuit. Argued and Submitted Feb. 14, 1995.Decided Aug. 7, 1995. Howard Trapp, Howard Trapp Inc. (on the briefs), Agana, Guam; and Jan Rubinstein, Agana, Guam ...
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Opinion by Judge FLETCHER; Partial Concurrence and Partial Dissent by Judge RYMER. The Faheemi brothers — Adbul Aziz Fahee-mi and Abdul Majeed Faheemi — appeal a summary judgment in the Government’s favor. The district court forfeited to the government funds seized from Abdul Aziz as he was boarding an airplane for a flight to the United Arab Emirates. We reverse and remand. What defenses and cla...
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In a case arising under the Employee Retirement Income Security Act (“ERISA”), we are called upon to determine whether the termination of an insurance policy was consistent with the terms of the plan documents. In so doing we must consider what constitutes the plan documents and whether because of an ambiguity or mistake, those documents should be reformed. Alfred Cinelli appeals the district cour...
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Opinion Plaintiff and appellant Harry Frank Scolinos (Scolinos) appeals a judgment following a grant of summary judgment in favor of defendants and respondents Raymond G. Kolts, Kathleen Landgraf Kolts and Kolts & Nawa, attorneys at law (collectively, defendants). Because it is uncontroverted there was a failure by the parties to comply with the ethical rules pertaining to fee-splitt...
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Opinion This petition, brought by a nonsettling defendant in a multiparty construction defect case, challenges an order made by the trial court which found the plaintiff’s settlement with a number of codefendants to be “in good faith” in accordance with the terms of Code of Civil Procedure section 877.6. 1 The action was brought by Cambridge Terrace Owners’ Association, a homeo...
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62 F.3d 1175 76 A.F.T.R.2d 95-5948, 95 Cal. Daily Op. Serv. 6254,95 Daily Journal D.A.R. 10,653 In re GRAND JURY PROCEEDINGS, Petition for Disclosure ofGrand Jury Materials,George P. BALLAS; Ann T. Ballas; Samuel H. Booker; SaraC. Booker; Robert J. David; Donald Housman;Frank Poorman; Margaret W. Poorman,Petitioners-Appellants,v.UNITED STATES of America, Respondent-Appellee. No. ...
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62 F.3d 315 76 A.F.T.R.2d 95-5919, 95-2 USTC P 50,448,95 Cal. Daily Op. Serv. 6256,95 Daily Journal D.A.R. 10,657 Jeffrey FEILER; Kathy Feiler; Inman, Weisz & Steinberg,Plaintiffs-Appellants,v.UNITED STATES of America; United States TreasuryDepartment; United States Internal RevenueService, Defendants-Appellees. No. 92-56378. United States Court of Appeals,Ninth Circuit. ...
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The National Labor Relations Board petitions for enforcement of its order prohibiting Sheet Metal Workers International Association, Local 104, AFL-CIO (the “Union”) from imposing discipline on one of its members, Douglas Henry. The Board held that the Union violated section 8(b)(1)(B) of the Act, 29 U.S.C. § 158(b)(1)(B), because its discipline had the effect of coercing Henry in his collectiv...
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Opinion In this case we hold that a deed granting a nonexclusive easement of a specified width does not, as a matter of law, give the owner of the dominant tenement the right to use every portion of the easement. The trial court properly interpreted this easement to give the owner of the servient tenement the right to place improvements upon the easement as long as they do not unreasonabl...
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*712 Opinion During the trial of four defendants for the attempted murder of a police officer, a juror committed misconduct by having repeated contact with the uncle of two defendants. After a hearing, the trial court denied new trial motions finding the presumption of prejudice had been rebutted. We affirm the judgments. 1 Factual and Procedural Background Because the only issues invol...
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Opinion In this case we construe Penal Code section 1026.5 (hereafter, section 1026.5), which governs state hospital commitments for those found not guilty by reason of insanity. Section 1026.5, subdivision (a), sets forth a “maximum term of commitment” (equal to the maximum prison term had there been a conviction); and section 1026.5, subdivision (b), sets forth an exception to this “max...
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*724Opinion Los Angeles County Department of Children's Services (DCS) appeals from an order entered pursuant to section 366.26 of the Welfare and Institutions Code,* 1 determining that although the minors Teneka W. (Teneka) and Drake W., Jr. (Drake Jr.), were adoptable, termination of the parental rights of their father Drake W., Sr. (Drake Sr.), would be detrimental to them.2 The court subseque...
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*678 Opinion A workers’ compensation judge (WCJ), applying the rebut-table presumption of compensability provided in Labor Code section 5402, 1 barred evidence offered by defendant State Compensation Insurance Fund (SCIF) concerning its admitted noncompliance with the statute and determined that an applicant was 100 percent permanently disabled due to industrial injury...
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Opinion This is a consolidated appeal by cross-defendants Louis W. Varga and R. Agnus Varga from a judgment by court after default entered *753 April 8, 1992, and from an earlier order of January 22, 1992, ordering appellants and their attorneys to pay sanctions in the amount of $2,190 in connection with appellants’ motion for relief from default. A fire at appellants’ restau...
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We consider here whether a district court has discretionary authority to depart downward from the sentence mandated by United States Sentencing Guideline (“USSG”) § 2L1.2(b)(2), which requires a 16-level upward adjustment for immigration defendants convicted of aggravated felonies. At sentencing, in response to defense counsel’s question, the district court stated that it lacked authority to depa...
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Opinion by Judge O’SCANNLAIN; Dissent by Judge REINHARDT. The Supreme Court having decided that the presence of alternate jurors during deliberations was not erroneous, we now decide, among myriad remaining issues, whether a juror’s stipulated absence from a half-day of trial testimony is permissible. I Olano and Gray participated in a complicated kickback scheme in which individuals abused their...
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Simcoe and Erie General Insurance Co. et al. (“Simcoe”) insured Bell Lavalin, Inc. (“Bell Lavalin”) under a professional liability insurance policy. Bell Lavalin, the prime contractor of a North Slope Alaskan construction project, was sued by one of its subcontractors, Conam Alaska (“Conam”). The jury awarded Conam over $7,000,000 in damages. Bell Lavalin, through its receiver, sued Simcoe for ind...
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Opinion Plaintiffs appeal the stipulated judgment entered following grant of summary adjudication of plaintiffs’ causes of action for breach of contract and breach of the covenant of good faith and fair dealing in favor of defendant Consolidated American Insurance Company (Consolidated). Plaintiffs contend that they were entitled to a defense of certain third party claims pursuant to the ...
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*1105 Opinion Under California Rules of Court, rule 31(d), 1 an appeal taken from a conviction obtained by plea of guilty or nolo contendere is “operative” without issuance of a certificate of probable cause (Pen. Code, § 1237.5) 2 only if the notice of appeal states the appeal is based on either of two broad categories of grounds not requiring a certificate...
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Opinion In 1992, California enacted an anti-SLAPP statute. (Stats. 1992, ch. 726, § 2; Code Civ. Proc., 1 § 425.16.) SLAPP is an acronym for Strategic Lawsuit Against Public Participation. SLAPP litigation, generally, is litigation without merit filed to dissuade or punish the exercise of First Amendment rights of defendants. (Hull v. Rossi (1993) 13 Cal.A...
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*814 Opinion Paul Vincent Lunardi and Denise Lunardi, executor of the estate of Ralph Lunardi, brought this action for breach of contract and negligence after respondent Great-West Life Assurance Company (Great-West) rescinded the insurance policy it had issued on Ralph’s life. The trial court ruled that Great-West validly rescinded the policy because Ralph and Paul had concealed...
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*908 Opinion Under recent amendments to Code of Civil Procedure section 473 (section 473), upon a timely filed motion for relief a trial court must vacate a default or resulting default judgment upon the sworn affidavit of the defaulting party’s attorney attesting to his mistake, inadvertence, surprise or neglect “unless the court finds that the default. . . was not in...
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Opinion Defendant Larry Thomas Dibb appeals from judgment after he was sentenced to 16-month concurrent prison terms upon his guilty pleas to charges of possessing methamphetamine for sale and possessing a controlled substance in jail. Earlier he had challenged, both in municipal and superior courts, the seizure of a bag containing methamphetamine from his person, based on evidence presented at...
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Opinion Southern California Edison Company (SCE) has long-term contracts to purchase electricity generated by wind-powered turbines owned by Energy Development and Construction Corporation and San Gorgonio Farms, Inc. (referred to collectively as Energy Development). Each contract is divided into two “periods.” During the 10-year “first period,” Edison is required to pay a substantially higher ...
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*1038 Opinion Petitioners David Kleis, Inc., doing business as Beaumont Convalescent Hospital (Kleis), and Anthony Raoul David, its administrator (David), seek a writ of mandate directing the superior court to vacate its order denying their motion to stay the trial in their declaratory relief action against California Insurance Company (CIC) and Pacific Rim Assurance Company (Pac...
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62 F.3d 1233 102 Ed. Law Rep. 491, 95 Cal. Daily Op. Serv. 6352,95 Daily Journal D.A.R. 10,854 Phyllis Wright HARRIS, on her own behalf and on behalf ofher three children; Beverly Harris Butler,formerly Beverly Harris; Samuel Harris,Plaintiffs-Appellants,v.JOINT SCHOOL DISTRICT NO. 241; Board of Trustees ofDistrict No. 241; Trent Woods, Chairperson ofBoard; Al Arnzen, Superintendent,D...
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Opinion In this case we are asked to consider the extent of a homeowner association director’s rights to inspect the records of the association under Corporations Code section 8334.1 Here a director asks us to conclude his inspection rights are absolute and include an unfettered right to review and copy the ballots cast by the association’s homeowner members in its annual election of its board of...
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Opinion By information filed in Merced County Superior Court on December 28, 1993, appellant, Antonio Morales Garcia, was charged with the following offenses: (1) the murder of Maria Prado, in violation of Penal Code section 187; (2) gross vehicular manslaughter while intoxicated in violation of Penal Code section 191.5; (3) driving while under the influence of alcohol or drugs resulting in inj...
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MEMORANDUM AND ORDER Previously pending on this court’s law and motion calendar for March 2, 1995 was plaintiff Kathleen Roberts’ motion to compel the deposition of defendant Michael E. Sweat-man and Sweatman’s motion to stay his deposition and for a protective order. Also pending was defendant Americable’s related motion to compel production. 1 The parties timely filed a j...
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63 F.3d 828 4 A.D. Cases 1278, 11 A.D.D. 21, 7 NDLR P 7,95 Cal. Daily Op. Serv. 6385,95 Daily Journal D.A.R. 10,915 Martin D. COLLINGS, Plaintiff-Appellant,v.LONGVIEW FIBRE COMPANY, Defendant-Appellee.Richard James BEAMER; James C. Banes; James Miller;Michael Shay; Guy Yeager; Billy R. Staggs;Barry J. Reeves, Plaintiffs-Appellants,v.LONGVIEW FIBRE COMPANY, Defendant-Appellee. Nos. ...
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OVERVIEW The Paul Revere Life Insurance Company (“Paul Revere”) appeals the district court’s grant of summary judgment for Karen Varta Babikian, holding that it was obligated to provide Babikian with lifetime maximum benefits of one million dollars for treatment of her breast cancer. We reverse and remand. FACTS AND PROCEDURAL BACKGROUND In August 1989, Paul Revere issued a group...
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We must decide whether the nonresident defendants had sufficient minimum contacts with California to subject them to specific jurisdiction there. I. Ziegler was the Chief Executive Officer of Justin International, a San Francisco-based domestic fruit brokerage firm. Riverfront Groves, Inc. grows and packs citrus fruit in Florida. Justin International purchased large quantities of citrus from River...
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ORDER On April 19, 1995, the Court heard arguments on plaintiffs and defendant’s motions for summary adjudication of two issues: (1) whether defendant Atlantic Mutual Ins. Co. (“Atlantic Mutual”) had a duty to defend plaintiff First Pacific Networks, Inc. (“FPN”) in Phase I of the underlying lawsuit, Arthur Bass v. First Pacific Networks (the “Bass lawsuit”); and (2) whether At...
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10 Cal.4th 1114 (1995) 899 P.2d 67 43 Cal. Rptr.2d 681 THE PEOPLE, Plaintiff and Appellant, v. JOSE CARBAJAL, Defendant and Respondent. Docket No. S036146. Supreme Court of California. August 14, 1995. *1118 COUNSEL Michael D. Bradbury, District Attorney, Kent Baker, William Redmond and Kevin G. Denoce, Deputy District Attorneys, for Plaintiff and Appellant. Kenneth I. Clayman, Public Defender, C...
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Opinion Richard Lee Irizarry appeals from the judgment entered following a jury trial resulting in his conviction for first degree burglary, with court findings he had two prior felony convictions for which he had served separate prison terms. (Pen. Code, §§ 459, 667.5, subd. (b).) Appellant contends: I. “The trial court erred in refusing appellant’s request for instruction on unauthorized en...
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Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Chief Judge WALLACE. Pano Concha, M.D. and his ex-wife Marta Concha (“the Conchas”), on behalf of the Pano Concha, M.D., Professional Corporation Defined Benefit Plan (“the Plan”), appeal the district court’s decisions in two separate actions. In Appeal No. 93-55478 (“Concha I ”), the Conchas appeal the district court’s dismis...
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OPINION This appeal arises from the granting of a motion for summary judgment in favor of the chapter 7 1 trustee based upon a finding that an abstract of judgment which was recorded 91 days prior to the debtor’s bankruptcy was actually within the 90 day statutory preference period due to an enlargement of that period by Rule 9006(a). The judgment creditor appeals. We REVERSE and REMAND. ...
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OPINION Debtor brought a § 547(b) preference action against a corporation to recover funds already paid. The corporation objected to personal jurisdiction. The debtor argued that the creditor corporation consented to jurisdiction when it filed proofs of claim. The bankruptcy court agreed, denying the creditor’s summary judgment motion based on jurisdiction, and granting debtor’s summa...
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Opinion In this case, in adjusting a child support order between former spouses, we hold that the trial court erred in disregarding the provisions of new section 4057.5 of the Family Code.1 Camilla Wood Casparis (Camilla) appeals from the judgment entered following a hearing on an order to show cause re child support filed by her ex-husband, William D. Wood, Jr. (William2). William’s 1993 motion ...
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Opinion I Appellant Tung Yiu Tai was charged by information with fraudulent use of a credit access card (Pen. Code, 1 § 484g), forgery of a credit access card (§ 484f, former subd. (1)), and commercial burglary (§ 459). The information also set forth allegations that Tai had suffered two prior felony convictions, making him ineligible for probation (§ 1203, subd. (e)(4)), and one enhancemen...
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Opinion Defendant Eddie Lee Rand (defendant) appeals his conviction of first degree murder of Clinton Sharp III. (Pen. Code, § 187.) The jury found true enhancement allegations that defendant personally used a firearm, that a principal was armed, and that defendant discharged a firearm from a motor vehicle causing injury or death. (Pen. Code, §§ 12022.5, subd. (a), 12022, subd. (a)(1), 12022.55...
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Opinion Michael Ray Rogers (appellant) appeals from a judgment of conviction following a jury verdict finding him guilty of attempted voluntary *1055 manslaughter and assault with a firearm and finding that he used a firearm in the commission of the offenses. (Pen. Code, §§ 664/192, subd. (a), 245, subd. (a)(2), 12022.5.) Appellant admitted a prior serious felony conviction. ...
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Opinion The facts in this case are uncomplicated and undisputed, but the same cannot be said about the pertinent law. At issue is the applicability of Government Code section 66499.20/2, a seldom cited section of the Subdivision Map Act (Gov. Code, § 66410 et seq.) (the Act). 1 The section provides in part, “Subdivided lands may be merged and resubdivided without reverting to a...
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Opinion A long-range development plan for a university projects increased enrollment in a local elementary school district. A supplemental environmental impact report (SEIR) describes impacts of the plan. It proposes options which include building classrooms to accommodate additional students. Must the SEIR commit the university to provide funds to the district to build classrooms? No. ...
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Opinion The question presented is whether an order setting aside a default judgment qualifies as a “new trial” order for purposes of Code of Civil Procedure section 583.320, which provides a three-year period *1151 within which to again bring the matter to trial when a new trial is granted by the trial court or ordered by an appellate court. 1 We conclude it does n...
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62 F.3d 1233 95 Cal. Daily Op. Serv. 6441, 95 Daily JournalD.A.R. 11,035UNITED STATES of America, Plaintiff-Appellant,v.John Byrnes EVANS, Defendant-Appellee. No. 95-10175. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 18, 1995.Decided Aug. 16, 1995. Robert L. Miskell, Asst. U.S. Atty., Appellate Section, Tucson, AZ, for plaintiff-appellant. ...
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Petitioner, a native and citizen of the Philippines, seeks review of the Board of Immigration Appeals’ (“BIA”) denial of her motion to reopen deportation proceedings to allow her to seek either adjustment of her status under section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, or suspension of deportation, section 244(a)(1) of the Act, 8 U.S.C. § 1254(a)(1). We have jurisdiction...
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*1123 Opinion In this opinion we are called upon to determine the appropriate procedure for a trial court to follow when the proponent of a referendum petition challenges by petition for writ of mandate a determination by a county election department that certain persons who signed the referendum petition did not also print their names in a fashion acceptable to the election department. Her...
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*1075 Opinion The City of Oxnard (Oxnard) appeals the judgment in favor of respondents Twin City Fire Insurance Company (Twin City) and First State Insurance Company (First State). Oxnard had sued respondents for breach of contract and bad faith in failing to contribute to its defense in another action. We affirm the judgment. Facts Since 1975, Oxnard has maintained...
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Opinion Gordon and Vera Gunderson appeal from a grant of summary judgment in their action against respondent Fire Insurance Exchange *1109 for breach of their insurance contract and tortious bad faith, arising out of respondent’s denial of appellants’ tender of the defense of a third party lawsuit. Appellants contend that the trial court erred in granting summary judgment in ...
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Opinion Defendants, Robert B. Cassil and William F. Raymond, seek review of an order of the respondent court holding them in contempt for failure to comply with an order to transfer security deposits to a receiver. Because there was no substantial evidence defendants had the ability to comply with the order to transfer security deposits, we grant the habeas corpus and certiorari requests and annu...
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The district court reversed a bankruptcy court order, which avoided the penalty portion of a tax lien against Douglas P. DeMa-rah’s real property. The district court also remanded the case to the bankruptcy court for allocation of the tax lien among various tax periods and types of taxes. DeMarah appealed. We affirm. FACTS AND PROCEDURAL HISTORY DeMarah failed to pay various federal income ta...
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62 F.3d 1240 41 ERC 1193, 25 Envtl. L. Rep. 21,483,95 Cal. Daily Op. Serv. 6482,95 Daily Journal D.A.R. 11,089 Thomas A. BECK; Melvin R. Beck; Robert Evans, Plaintiffs-Appellants,v.ATLANTIC RICHFIELD COMPANY, a Delaware Corporation; and TheMontana Department of Fish, Wildlife and Parks,Defendants-Appellees.Thomas A. BECK; Melvin R. Beck; Robert Evans, Plaintiffs-Appellees,v.ATLANTIC R...
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On January 6, 1992, Plaintiff/Appellant Capital Tracing, Inc. (“Capital”) filed a wrongful levy action against the United States under 26 U.S.C. § 7426 1 based on the Internal Revenue Service’s (“IRS”) notice of levy filed on August 22, 1985. The district court dismissed the action on May 8, 1992, for lack of subject matter jurisdiction, finding that the time for filing a wrongful le...
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63 F.3d 863 RICO Bus.Disp.Guide 8870, 95 Cal. Daily Op. Serv. 6485,95 Daily Journal D.A.R. 11,097,95 Daily Journal D.A.R. 11,143 FEMINIST WOMEN'S HEALTH CENTER, Plaintiff-Appellee,andBeverly Whipple, Diane Hale, Kimberly Boyd, Deborah Barton, Plaintiffs,v.Sharon CODISPOTI, Defendant-Appellant,andDottie Roberts, Curtis Beseda, Carl Codispoti, et al., Defendants.FEMINIST WOMEN'S HEALTH CENTE...
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Manuel Contreras, a citizen of Mexico, appeals his conviction for Aggravated Illegal Reentry into the United States, 8 U.S.C. § 1326(a) and (b)(2). The conviction is affirmed. Background On July 29, 1988, Contreras was arrested on a charge of possession with intent to distribute cocaine. On August 9, 1988, while in custody on this charge, Contreras was served with an Order to Show Cau...
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Opinion Government Code section 18671.11 specifies the time within which the California State Personnel Board (the Board) must render a *1138decision following a hearing or investigation of a state employee’s appeal from a departmental disciplinary action. For most investigations and hearings the decision must be rendered in no more than six months from the date the petition is filed or ninety da...
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Opinion Appellants, Citizens’ Committee to Save Our Village et al., appeal from a judgment denying a peremptory writ of mandate ultimately seeking to compel preparation of a formal environmental impact report (EIR). Respondent City of Claremont prepared a mitigated negative declaration (MND) in lieu of a formal EIR in connection with a building project proposed by respondent Pomona Colleg...
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ORDER The memorandum disposition filed January 19, 1995 is withdrawn. With the memorandum disposition withdrawn, the Petition for Rehearing and the Motion to Certify Questions of State Law to the Oregon Supreme Court are moot. OPINION We must decide whether the City of Portland’s ordinance requiring non-residents to consent to annexation as a condition of receiving a subsidy, or reduction i...
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OPINION I The bankruptcy court ruled that social security disability payments are included in determining disposable income which must be paid to creditors under a Chapter 13 plan. The court denied plan confirmation and dismissed the debtors’ bankruptcy case. We AFFIRM. II FACTS Ken and Mary Hagel (“Debtors”) filed a Chapter 18 bankruptcy petition and proposed pla...
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Opinion In Diamond Heights Homeowners Assn. v. National American Ins. Co. (1991) 227 Cal.App.3d 563, 582 [277 Cal.Rptr. 906] (Diamond Heights), we suggested that an excess insurer could stand in the position of a co-obligor on a contract debt and should be permitted to utilize Code of Civil Procedure section 877.6 1 proceedings to object to a settle...
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Plaintiff-Appellant Roland Charles Eber-hardt (“Eberhardt”), the father of decedent Allan Eberhardt, appeals the district court’s grant of summary judgment in favor of Defendants-Appellees San Pedro Peninsula Hospital and Dr. Larry Orosz. Eberhardt sued the hospital and Dr. Orosz for discharging his son in an unstable mental condition, in violation of the Emergency Medical Treatment and Active Lab...
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Dagoberto Rodriguez-Lopez (Rodriguez) appeals from his conviction and sentence for drug smuggling. He contends his conviction should be reversed because a statement he *893 made to Customs agents was admitted at trial in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also contends he should not have been sentenced to the mandatory minimum for his crime...
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OVERVIEW The bankruptcy court denied all fees and costs requested by the law firm of Neben & Starrett, which represents the debtor, Park-Helena Corporation. The bankruptcy court found that Neben & Starrett had violated various bankruptcy statutes and court rules by willfully failing to disclose (1) the source of a $150,000 retainer paid to the firm, and (2) the firm’s connections to a rela...
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FACTS On six occasions between February 1993 and January 1994, computer-related items were stolen from offices at the Emergency Operation Facility (“EOF”) of the Southern California Edison San Onofre Nuclear Generator Site (“SONGS”). The nature of the thefts suggested an inside job, and in early 1994, the investigation focused on defendant-appellant Kyle T. Robinson, who was a security officer ...
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Acting Comptroller of the Currency Stephen L. Steinbrink (the Comptroller) appointed a conservator for First National Bank & Trust (the Bank) pursuant to 12 U.S.C. § 203(a) (Supp. II 1990). The Bank and certain of its shareholders sued the Comptroller to terminate the conservator-ship, contending he had violated their rights to procedural due process and had acted arbitrarily and capriciously. On ...
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This appeal arises from the district court’s grant of summary judgment in favor of the Secretary of the Department of Health and Human Services upholding the validity of its regulation governing “sole community hospital” status under the Medicare Act, 42 C.F.R. § 412.92(a) (1994). The San Bernardino Mountains Community Hospital District (“the District”) operates Mountains Community Hospital, which...
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Appellants Kenneth M. Baker and Ralph Hale (defendants) were convicted in federal district court of one count each of conspiring to traffic in contraband cigarettes, in violation of 18 U.S.C. § 2342 and 18 U.S.C. § 371; two counts each of trafficking in contraband cigarettes, in violation of 18 U.S.C. § 2342(a); one count each of conspiring to commit racketeering activity, in violation of 18 U.S.C...
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Opinion Penal Code section 1237.5 precludes a criminal defendant from appealing a conviction based on a guilty plea, on grounds going to the validity of the plea or the preplea proceedings, unless the defendant has filed with the trial court a statement of grounds for appeal and the trial court has issued a certificate of probable cause. The question presented here is whether, once the court ha...
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Opinion In Becker v. IRM Corp. (1985) 38 Cal.3d 454 [213 Cal.Rptr. 213, 698 P.2d 116] (hereafter Becker), this court concluded that under California’s products liability doctrine (which provides generally that manufacturers, retailers, and others in the marketing chain of a product are strictly liable in tort for personal injuries caused by a defective pro...
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Opinion Lucia R., the natural mother of Ronald R., appeals from a juvenile court order terminating her parental rights and ordering adoption as the appropriate permanent plan for Ronald. We will affirm. Procedural History On November 3, 1992, respondent Fresno County Department of Social Services (DSS) filed a petition alleging that one-week-old Ronald R. was a minor within the jurisdiction of the...
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Opinion Petitioner, Angie M. (Angie), seeks extraordinary relief after the trial court sustained real party in interest Robert Hiemstra’s (Hiemstra) demurrer to her unlawful seduction/childhood sexual abuse and intentional infliction of emotional distress causes of action and granted a motion *1221 to strike her claim for punitive damages. The primary question presented is wh...
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Opinion Retirement Board of the City and County of San Francisco Employees (appellant) appeals from a judgment granting Joanne Schmidt’s (respondent) petition for a peremptory writ of mandate. The writ of mandate commanded appellant to set aside its decision denying respondent a continuation of her deceased husband’s retirement benefits. Appellant contends that the trial court erred in ru...
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Opinion When a building is constructed with asbestos-containing materials, does a property owner’s cause of action for strict liability or negligence accrue on the owner’s discovery of the mere presence of asbestos in the building or when asbestos contamination occurs? In this case, we hold—consistent with the vast majority of other jurisdictions that have considered this issue—that the o...
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Opinion by Judge SCHROEDER; Dissent by Judge WRIGHT. The Secretary of the Interior appeals the district court’s decision that the plaintiff group of Samish Indians, and their Chairman, Margaret Greene, receive a formal adjudication under the Administrative Procedure Act, 5 U.S.C. § 554, to determine whether or not the Samish are entitled to be recognized as a “tribe” by the federal government. The...
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The question on appeal is whether Shirley Daniels was an “employee” of the Environmental Protection Agency (“EPA”) for purposes of bringing an age discrimination suit against the federal agency under the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 633a. Daniels worked at the EPA as part of the Senior Environmental Employment Program (“SEE”) pursuant to the Older American Community S...
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64 F.3d 456 76 A.F.T.R.2d 95-6498, 64 USLW 2145,95-2 USTC P 50,454,95 Cal. Daily Op. Serv. 6615,95 Daily Journal D.A.R. 11,309 WWSM INVESTORS, dba Advanced Plastics Engineering Co.,Plaintiff-Counter-claimant-Defendant-Appellant,v.UNITED STATES of America,Defendant-Counter-claimant-Plaintiff-Appellee. No. 93-17072. United States Court of Appeals,Ninth Circuit. Submission deferr...
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OPINION Petitioner-appellee Harpinder Singh is a Sikh who attempted to enter this country illegally from India. He filed a habeas corpus petition in district court after the Board of Immigration Appeals (“BIA”) deemed him excludable and denied his applications for asylum pursuant to 8 U.S.C. §§ 1101(a) & 1158(a) and withholding of deportation pursuant to 8 U.S.C. § 1253(h). The district court hel...
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63 F.3d 1512 64 USLW 2161, 33 Fed.R.Serv.3d 543,40 Cont.Cas.Fed. (CCH) P 76,828,95 Cal. Daily Op. Serv. 6608,95 Daily Journal D.A.R. 11,325 UNITED STATES of America, ex rel., William J. SCHUMER,Plaintiff-Appellant-Cross-Appellee,v.HUGHES AIRCRAFT COMPANY, Defendant-Appellee-Cross-Appellant. Nos. 92-55759, 92-55857. United States Court of Appeals,Ninth Circuit. Argued and Submit...
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The issue is priority of subordinated debenture holders after a bank failure. When a bank fails, and the Resolution Trust Corporation (RTC) repudiates the bank’s subordinated debentures, do subordinated debenture holders get the same priority as holders of other debt? No. Their interest remains subordinated. I. Facts. No facts were disputed. The district court granted summary judgment in favor o...
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OPINION I. FACTS Appellee and Debtor, Sateesh Apte (“Dr. Apte”), is a neurologist. He is also the founder of several corporations, including Apte Group, Inc. (“Apte Group”), a management company. In August, 1989, Apte Group leased a 48,000 square foot office building in Pleasanton, California from Rosewood Associates (“Rosewood”). Dr. Apte intended to sublease the office space to other medi...
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Opinion On June 5, 1990, by adoption of an initiative designated on the ballot as Proposition 115 and entitled the “Crime Victims Justice Reform Act,” the voters of California authorized reciprocal discovery in criminal cases. The voters did not intend to apply the reciprocal discovery provisions to juvenile delinquency proceedings. (Robert S. v. Superior Court (1992) 9 Cal.App.4th 1417, 14...
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Opinion In this case of first impression, we hold that the crime of stalking (Pen. Code,1 § 646.9) does not require an intent to kill or cause great bodily injury, but only a specific intent to make a “credible threat” so as to make the threatened person reasonably fear death or great bodily injury. Accordingly, we affirm the stalking conviction and judgment. Factual and Procedural Background Ther...
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Opinion Defendants were convicted by jury of multiple felonies. They have raised various claims on appeal and by petitions for writs of habeas corpus. Their primary complaints involve challenges to the sufficiency of evidence; inadequacy of jury instructions; admission of expert testimony, “profile” and “other crimes” evidence; the failure to sever the cases against each for trial; and ma...
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OPINION OVERVIEW Debtor claimed exemptions for full equity in a vehicle and residence that facially exceeded the statutory exemptions. The bankruptcy trustee did not file an objection to the claimed exemptions within the statutorily prescribed period. Prior to the expiration of the time for the trustee to object to the claimed exemptions, the trustee sold the vehicle and paid Deb...
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Appellants Young Ho Kim and Jeong Suk Kim appeal their convictions for conspiracy to “structure” cash transactions in violation of the Currency Transaction Reporting Act. See 18 U.S.C. § 371; 31 U.S.C. § 5324(a)(3). The Act makes it illegal to structure transactions — i.e., break up a single cash transaction above the reporting threshold into two or more separate transactions — for t...
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64 F.3d 1292 76 A.F.T.R.2d 95-6127, 64 USLW 2152,34 Collier Bankr.Cas.2d 402,Bankr. L. Rep. P 76,604,95 Cal. Daily Op. Serv. 6646,95 Daily Journal D.A.R. 11,401 In re PACIFIC-ATLANTIC TRADING COMPANY, a Californiacorporation, Debtor.Edward F. TOWERS, Trustee, for Pacific Atlantic TradingCompany, a California corporation, Plaintiff-Appellee,v.UNITED STATES of America and Internal Revenue S...
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Jeff Bradley, an Oregon prisoner, sued Frank Hall, the director of the Oregon Department of Corrections (“ODOC”) under 42 U.S.C. § 1983 to challenge the constitutional validity of prison regulations prohibiting the use of “hostile, sexual, abusive or threatening” language, Or.Admin.R. 291-105-015(2)(f) and (g). Bradley contended that subjecting him to discipline under these rules for his use of di...
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ORDER The Bankruptcy Appellate Panel held that fraudulently inducing a creditor’s extension of the due date for repayment of a loan was sufficient under 11 U.S.C. § 523(a)(2) to support a claim of nondischargeability against a debtor in bankruptcy, and it was not necessary for the creditor to show that “new money” was lent to the debtor. We agree. The opinion of the Bankruptcy Appellate Panel in I...
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OVERVIEW This ease considers whether 28 U.S.C. § 1447(c) authorized the district court to award defendants their fees incurred between removal and remand, where both removal and the subsequent remand were proper. Section 1447(e) authorizes the district court when remanding a ease to award costs and fees incurred as a result of the removal. Shortly after this action was properly removed to fed...
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Safeway Inc. (“Safeway”) appeals and National Union Fire Insurance Company of Pittsburgh (“National Union”) cross-appeals from the district court’s judgment in this insurance coverage dispute over the settlement of several class actions against Safeway. Safeway contends that the district court erred by (i) holding that a large dividend paid out as part of the settlement was not a loss covered by S...
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Opinion Where class-action plaintiffs allege they have suffered no personal injury or property damage from a vehicle they claim is defectively designed, and it is impliedly conceded that their vehicles have—since the date of purchase—remained fit for their ordinary purpose, can plaintiffs state a cause of action in breach of implied warranty? We conclude they cannot, and that the superior...
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Opinion In this case we hold that recent statutory amendments adopted the burden-shifting characteristics of federal law for California summary judgment motions. William Hunter has sued multiple defendants, including asbestos manufacturers, asbestos installers, premises owners and others, alleging injuries resulting from his occupational exposure to asbestos. The court granted summar...
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Opinion Does “Three Strikes—The Legislation,” Penal Code section 667, subdivisions (b) through (i), apply to California convictions predating its March 7, 1994, effective date? 1 Four recent cases have held the law applies: People v. Anderson (1995) 35 Cal.App.4th 587 [41 Cal.Rptr.2d 474] (Anderson); People v. Reed (1995) 33 Cal....
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*1276 Opinion Plaintiff filed an action against defendant County of Santa Cruz for personal injuries she received when she was assaulted by a man who was confined with her in a holding room at the Santa Cruz County jail while they were both in the process of being booked on criminal charges. 1 Defendant sought summary judgment on the ground that it was immune from liab...
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This is an appeal from the judgment of conviction for violation of 18 U.S.C. §§ 2111, 2114 and 924(c)(1), and the ensuing sentence. Because we must reverse the conviction on one issue, we also address the other issues which are likely to arise on a new trial. However, “we refuse to speculate as to the outcome of this hypothetical second trial and therefore decline to address [defendant’s] sentenc...
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We decide whether the definition of aggravated felony contained in 8 U.S.C. § 1101(a)(43) is ambiguous; more specifically, we decide whether a five-year minimum term of imprisonment provision in that statute applies only to the immediately preceding listed offense or to all listed offenses. Elvidio Andrino-Carillo appeals his conviction of one count of being an alien present in the United ...
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Joseph V. Nash appeals his convictions of bank fraud in violation of 18 U.S.C. § 1344 and making false statements to a federally insured lending institution in violation of 18 U.S.C. § 1014. The district court had jurisdiction pursuant to 18 U.S.C. § 3231, and this court has jurisdiction pursuant to 28 U.S.C. § 1291. We reverse in part and affirm in part. I. FACTS AND PROCEEDINGS BELOW ...
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63 F.3d 915 41 ERC 1129, 64 USLW 2139, 25 Envtl.L. Rep. 21,479,95 Cal. Daily Op. Serv. 6699,95 Daily Journal D.A.R. 11,470 Brad BENNETT; Mario Giordano; Langell Valley IrrigationDistrict, a political subdivision of the state of Oregon;Horsefly Irrigation District, a political subdivision of theState of Oregon, Plaintiffs-Appellants,v.Marvin L. PLENERT, in his official capacity as Regiona...
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63 F.3d 909 41 ERC 1537, 64 USLW 2155, 33Fed.R.Serv.3d 151,26 Envtl. L. Rep. 20,058,95 Cal. Daily Op. Serv. 6717,95 Daily Journal D.A.R. 11,476 UNITED STATES of America, Plaintiff-Appellee,v.V-1 OIL COMPANY, d/b/a V-1 Propane, Defendant-Appellant. No. 94-36178. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 18, 1995.Decided Aug. 24, 1995. Pet...
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The Bigelows timely appeal from a decision of the Tax Court. They argue that the Tax Court’s ruling is void because it violated the automatic stay that took effect upon filing of their bankruptcy petition. The Tax Court had jurisdiction under 26 U.S.C. §§ 6213, 6214, and 7442. We have jurisdiction pursuant to 26 U.S.C. § 7482. We affirm. BACKGROUND During 1981 and 1982, the IRS issued roughly...
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64 F.3d 497 150 L.R.R.M. (BNA) 2065, 64 USLW 2142,130 Lab.Cas. P 11,386,2 Wage & Hour Cas.2d (BNA) 1495,95 Cal. Daily Op. Serv. 6703,95 Daily Journal D.A.R. 11,483 CHAMBER OF COMMERCE of the UNITED STATES, on behalf of itsmembers, Plaintiff-Appellee,v.Harvey BRAGDON, Contra Costa City Zoning Administrator andDirector of Community Development; Contra Costa CountyDepartment of Building...
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Gregory Johnson appeals pro se the District Court’s denial of his post-conviction petition under 28 U.S.C. § 2254. An Arizona jury convicted Johnson of kidnapping, armed robbery and aggravated assault for his part in savagely beating and attempting to kill a man on the orders of his superior in the drug business. The Arizona courts upheld the conviction, 1 and Johnson sought habeas relief. The ...
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Gabriel Andaverde appeals from his criminal conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and for possessing a stolen firearm in violation of 18 U.S.C. § 922(j). He contends that 18 U.S.C. § 922(g)(1) violates the Fifth and Tenth Amendments, that several of his post-arrest statements were inadmissible, and that an insufficient interstate commerce ne...
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Opinion by Judge McKAY; Dissent by Judge FERNANDEZ. Michael Saunders, the plaintiff, is the third child born to Mrs. Saunders. Mrs. Saunders prematurely gave birth to her first child on September 15, 1983. He died a few days later from a brain hemorrhage. On October 1, 1984, Mrs. Saunders gave birth to her second child, Brian, by caesarian section at Columbus Air Force Base Hospital in Mississippi...
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OPINION The United States of America (“the United States”) appeals the bankruptcy court’s order of October 22, 1993, which denied its motion to vacate the order disallowing claims of the Internal Revenue Service (“the IRS”). The United States contends that notice of the debtors’ objections to the proofs of claim was insufficient, pursuant to Federal Rule of Bankruptcy Procedure 7004 ...
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Opinion Former Civil Code section 4800.2 (hereafter section 4800.2), now Family Code section 2640, provides that when community property is divided upon dissolution of the marriage, either spouse shall be reimbursed for his or her contributions of separate property to the acquisition of any property being divided as community property, unless the contributing spouse has waived the right o...
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Opinion Defendant and appellant Lester Davis (Davis) appeals from a judgment after trial by the court, in a declaratory relief action, that he was not insured under the commercial general liability policy, No. 2 95 MZX 80232301 (policy) issued by plaintiff and respondent Fireman’s Fund Insurance Company (Fireman’s Fund). The basis for the judgment was a finding of fact by the trial court ...
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Opinion In this action for legal malpractice, plaintiff Marshall appeals from judgment of dismissal entered after the court sustained without leave to amend the demurrer to complaint of defendants Gibson, Dunn & Crutcher, Ronald E. Gother, Anne K. Hilker, and David H. Kennedy on the ground that the action was barred by the statute of limitations. Allegations of the Complaint and Proc...
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Opinion Having pled guilty to one count of embezzlement (Pen. Code, § 503), defendant appeals to challenge a victim *1387 restitution order made after a lengthy restitution hearing. Specifically, she contends that the trial court erred (1) in awarding interest on the actual losses to the victim; (2) expressly finding that she had the ability to pay for the services of court-a...
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Opinion Appellant Calvin Jones was convicted of assault with a deadly weapon, and the enhancing allegation of personal infliction of great bodily injury was found to be true. The jury also found to be true the allegations of three prior felony convictions. The sole issue raised on appeal is whether sufficient evidence supported the jury’s finding regarding two of the alleged prior convictions. ...
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Opinion In this matter we issued an alternative writ of mandate to consider whether real party, the Press-Enterprise newspaper, is entitled to obtain certain records from petitioner, the City of Hemet (City), under the California Public Records Act (CPRA). (Gov. Code, § 6250 et seq.) 1 The trial court ordered disclosure of certain records; however, we conclude that real party is not entitled ...
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This is another volley in the litigation battle between the State of Nevada and the United States government over the potential placement of a repository for high-level nuclear waste at Yucca Mountain, Nevada. The battle was generated by the passage of the Nuclear Waste Policy Act of 1982, Pub.L. No. 97-425, 96 Stat. 2211 (1983), requiring evaluation of potential repository sites. It has been f...
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64 F.3d 510 33 Fed.R.Serv.3d 476, 48 Soc.Sec.Rep.Ser. 816,95 Cal. Daily Op. Serv. 6740,95 Daily Journal D.A.R. 11,591 Mark JONES, individually and on behalf of all similarlysituated persons; Orlando Corona, individuallyand on behalf of all similarly situatedpersons, Plaintiffs-Appellants,v.Donna E. SHALALA, Secretary of the U.S. Department of Healthand Human Services; Shirley Chater, Com...
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In this diversity action based on California law, primary insurer Continental Casualty Co. appeals from a judgment of the district court that it failed to negotiate a claim settlement in good faith and was therefore liable for the amount paid by excess carrier Highlands Insurance Co. Continental also appeals the district court’s prioritization of the four insurance policies involved, its ruling...
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*1499 Opinion On August 5,1991, plaintiff Philip Stanchfield filed suit against Hamer Toyota, Inc., and other defendants (referred to collectively as Hamer Toyota) seeking damages for breach of an employment agreement and specific performance of a stock purchase agreement. His complaint also included other causes of action which are not pertinent here. The matter proceeded t...
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Opinion Plaintiff Betty Schall sued her employer, defendant Lockheed Missiles and Space Company, Inc., for sexual harassment. During in limine proceedings, the trial court ruled plaintiff incompetent to testify about the harassment because her only memory of the behavior occurred after she had been hypnotized by her therapist. Plaintiff then conceded that she had no evidence of...
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OPINION ON PROVENANCE This case requires the court to resolve the ownership of a work of art. The word “provenance” has developed in the art world as a term for the subject of title to works of art. The case was tried to the court, sitting without a jury, and was briefed, argued, and submitted for decision. The court heard the testimony of the witnesses and has reviewed the relevant portions of...
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ORDER OF REMAND On April 26, 1995, the Court heard arguments on plaintiff’s motion for remand. Having considered the arguments of counsel, the applicable law, and the papers submitted, the Court hereby GRANTS plaintiffs motion. I. BACKGROUND A. Procedural History Plaintiff Joe Le’s Second Amended Complaint was filed on January 24, 1995. Defendants timely answered the complaint in San Ma...
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Francisco Leon-Yanez conditionally pled guilty to conspiracy and to possession with intent to distribute marijuana in violation of *532 21 U.S.C. §§ 841(a)(1), 846. Laura Michelle Morning conditionally pled guilty to misprision of Leon-Yanez’s possession with intent to distribute felony. 18 U.S.C. § 4. Both reserved the claim that evidence should have been suppressed because it was...
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Opinion We granted review to decide the recurring issue whether a commercial general liability insurer is required to defend a third party action that seeks incidental emotional distress damages caused by the insured’s noncovered economic or business torts. The Court of Appeal below concluded that allegations of incidental emotional distress damages flowing from noncovered causes of action fall o...
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*1522 Opinion Plaintiff brings this action as a test case to establish the right of a construction worker on public works projects to recover prevailing wages from his employer. While we agree with the plaintiff that common law contract causes of action are generally available to the employee, we find that plaintiff has not established a right to recover under the facts of this c...
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Opinion We here determine whether a lender’s acquisition of security property by full credit bid at a nonjudicial foreclosure sale bars the lender as a matter of law from maintaining a fraud action against third party nonborrowers who fraudulently induced the lender to make the loans. The Courts of Appeal are in conflict on this issue. We granted review to resolve the conflict, and now conclude t...
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Opinion E.R. Fairway Associates I et al. (collectively defendant) appeal from a postjudgment order awarding plaintiff California Housing Finance Agency (CHFA) attorney fees and costs totaling $243,808.68. In awarding attorney fees the trial court concluded: (1) CHFA was the prevailing party in the action for breach of contract (Civ. Code, § 1717); and (2) *1511 various agreem...
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OPINION The debtors in this case moved to avoid two judicial liens pursuant to § 522(f)(1) 1 as impairing their homestead exemption. The bankruptcy court held that the exemption was not impaired and therefore denied the motion. We AFFIRM. I. FACTS The facts are not in dispute. On November 8, 1991, the debtors/appellants, David and Willie Mae Ball (“Balls”) filed a joint chapter 7 petiti...
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OPINION I The Chapter 7 trustee requested compensation. The appellants objected, arguing that the trustee failed to submit time records to support the request and had already received sufficient compensation for his role as attorney to the trustee in the case. The bankruptcy court allowed most of the fees requested. We REVERSE. II FACTS Roderick Timber Company (“D...
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Opinion In this case we hold an appeal from an order made pursuant to Probate Code section 7241, subdivision (b) for the purpose of preventing injury or loss to a person or property, does not stay enforcement of the order. Thus, while such an order may be appealable (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1626, fn. 1 [24 Cal.Rptr.2d 190]), the order must nevertheless be c...
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Opinion A jury found appellant, Alfred Gilbert Flores, guilty of committing perjury in an application for a duplicate driver’s license. (Pen. Code, § 118.) He appeals from his conviction claiming the trial court erred in refusing an instruction which would have prevented the jury from finding him guilty unless they also found the application containing the false statements was an applicat...
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OPINION OVERVIEW Creditor filed a nondisehargeability complaint nearly three months after the deadline for filing. On debtor’s motion to dismiss for untimely filing, creditor alleged it never received actual notice of the bankruptcy filing or the attendant deadline for filing nondis-chargeability complaints. The bankruptcy court determined that the clerk’s certificate of mailing ...
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OPINION This appeal arises from the denial of an application for an administrative expense priority pursuant to § 503(b)(1) 2 for a claim arising from a postpetition industrial accident and a postpetition worker’s compensation award. We REVERSE and REMAND. I. FACTS 3 On March 10, 1988, the debtor, Sierra Pacific Broadcasters, Ltd. (“Sierra”) filed a volunt...
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OPINION This appeal arises from the bankruptcy court’s orders dismissing Debtor’s chapter 11 case pursuant to section 1112(b) and denying reconsideration of the dismissal. We AFFIRM the bankruptcy court. I. FACTS Debtor and Appellant, St. Paul Self Storage Limited Partnership (Debtor), is an Arizona limited partnership and successor in interest to St. Paul One Self Storage (St. Paul One), a...
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Opinion A subcontractor on a public works project sued the general contractor for money claimed due. The subcontractor also *1657 sued the surety on the contractor’s payment- and stop-notice release bonds. At trial, the subcontractor asserted the surety could not raise the contractor’s defenses and setoffs because the contractor was in corporate suspense because of nonpayment...
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Opinion In 1987 defendant pled no contest to driving under the influence (Veh. Code, § 23153, subd. (a)) and was sentenced to two years in *1615 prison. 1 Seven years later, defendant moved to vacate the judgment of conviction pursuant to Penal Code section 1016.5 on the ground that he was not advised of the possible immigration consequences of his plea. The trial ...
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Opinion The People appeal from the dismissal of the charge of possession of narcotics by defendant Salvador Besetta Martinez. The trial court concluded defendant’s right to a speedy trial had been violated. We affirm. Background On March 25, 1991, defendant was arrested by San Jose Police Officer Gilbert Torres, after the officer saw him and another person leave a known heroin sale location...
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Opinion Statement of the Case On April 27,1994, an information was filed in the Tulare County Superior Court charging appellant, Robert Sierra, with three counts. In count I appellant was charged with transportation of methamphetamine in violation of Health and Safety Code section 11379, subdivision (a). Appellant was charged in count II with transportation of marijuana in violation of Health...
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Opinion Former wife appeals from a trial court order which states that former husband’s obligation to provide support for the minor daughter of the parties is to terminate no later than the daughter’s 19th birthday. Under the original Oregon judgment of dissolution, support was to continue until the daughter reached the age of 21 provided she attended school up to that time. Appellant argues that...
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64 F.3d 1330 1995 Copr.L.Dec. P 27,470, 33 Fed.R.Serv.3d 468,36 U.S.P.Q.2d 1028, 95 Cal. Daily Op. Serv. 6889,95 Daily Journal D.A.R. 11,821 TRIAD SYSTEMS CORPORATION, a California corporation, Plaintiff,andJeffrey J. Lederman; Michael J. Madison, Plaintiffs-Appellants,v.SOUTHEASTERN EXPRESS COMPANY, a Georgia de factopartnership, dba Southeastern Brokerage Companyand dba Southeastern Sys...
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MEMORANDUM AND ORDER This is a product liability action in which plaintiff, a nurse at Mercy General Hospital in Sacramento, seeks to recover both compensatory and punitive damages for injuries allegedly resulting from being accidentally *1038 stuck with a needle which had previously been in contact with AIDS infected blood. The action was originally filed in state court ...
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11 Cal.4th 50 (1995) 900 P.2d 648 44 Cal. Rptr.2d 399 THE STATE OF CALIFORNIA ex rel. STATE LANDS COMMISSION, Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent; RICHARD K. LOVELACE et al., Real Parties in Interest. Docket No. S037729. Supreme Court of California. August 31, 1995. *55 COUNSEL John K. Van de Kamp and Daniel E. Lungren, Attorneys General, Roderick E. Walston, Chief ...
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Opinion We granted review in this case to resolve some of the widespread confusion that has arisen regarding the application of our opinion in Seaman’s Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752 [206 Cal.Rptr. 354, 686 P.2d 1158] (Seaman’s). We held in that case that a tort cause of action might lie “when, in addition to breaching the contract, [defendant] seeks to shiel...
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Opinion Joyce E. Penner appeals from a summary judgment granted to the County of Santa Barbara (County) in this action for a property tax refund. After Penner transferred real estate to a limited partnership wholly owned by herself and her adult children, the County issued a supplemental assessment increasing the property’s assessed value from $337,276 to $2.3 million She argues that the ...
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*1774 Opinion Plaintiffs Henry Winig and Robert Desruisseaux appeal from summary judgments in favor of the State of California (the State) in an action for damages for personal injuries caused by a dangerous condition of public property. The alleged dangerous condition is an inadequately protected 18-inch deep excavation running parallel to and about 5 feet from the fast lane of a freeway. ...
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Opinion Appellant, Jose Luis Carrillo, appeals from a judgment of conviction for drug-related offenses. He contends the trial court erred in denying his motion to suppress evidence of the cocaine found in his car. He also contends the trial court erred in denying his motion to dismiss based on Wheeler (People v. Wheeler (1978) 22 Cal.3d 258 [148 Cal.Rptr. 890, 583 P....
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Under Welfare and Institutions Code section 3201, subdivision (c), a convicted felon committed to the California Rehabilitation Center (CRC) for treatment because of actual or potential drug addiction may be confined for no longer than “a period of time . . . equal to that which he or she would have otherwise spent in state prison had sentence been executed, including application of good behavior ...
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11 Cal.4th 184 (1995) 900 P.2d 1170 44 Cal. Rptr.2d 620 In re IVAN O.B. MORSE on Discipline. Docket No. S041048. Supreme Court of California. September 1, 1995. *189 COUNSEL Hughes & Associates, Ralph D. Hughes, C. Timothy Genovese, Morse & Associates and Aaron M. Gumbinger for Petitioner. Diane C. Yu, Richard J. Zanassi and Jill A. Sperber for Respondent. OPINION THE COURT.[*] During a p...
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11 Cal.4th 138 (1995) 900 P.2d 690 44 Cal. Rptr.2d 441 BARBARA SMILEY, Plaintiff and Appellant, v. CITIBANK (SOUTH DAKOTA) N.A., Defendant and Respondent. Docket No. S041711. Supreme Court of California. September 1, 1995. *141 COUNSEL Chimicles, Burt & Jacobsen, Chimicles, Jacobsen & Tikellis, Nicholas E. Chimicles, Michael D. Donovan, Pamela P. Bond, Euguene Mikolajczyk and Patrick J. G...
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Opinion The superior court confirmed an arbitration award and entered judgment for plaintiff Richard Parker, including costs based on his Code of Civil Procedure section 998 offer. This was a true arbitration, however; and Code of Civil Procedure section 998 has no application. Moreover, pursuant to the parties’ agreement, defendants are entitled to a release and dismissal. Accordingly, we reve...
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37 Cal.App.4th 1720 (1995) 44 Cal. Rptr. 725 SCRIPPS MEMORIAL HOSPITAL, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. D022953. Court of Appeals of California, Fourth District, Division One. August 31, 1995. *1722 COUNSEL Weissburg & Aronson, Carol Isackson, Lowell C. Brown and Shirley J. Paine for Petitioner. Catherine I. Han...
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Opinion This purported appeal is brought by the Los Angeles District Attorney on behalf of the People from an order of the superior court sealing certain documents seized during a search of respondents’ law offices pursuant to a valid search warrant. The putative respondents are the law offices of Bauman & Rose, Lake and Levine and Donald Lake and Howard Levine, and Denise Breakman. ...
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I have before me an application for a stay of execution pending disposition of a petition for writ of certiorari to the Court of Criminal Appeals of Texas. Petitioner seeks direct review of that court’s judgment, entered May 17, 1995, affirming his conviction and death sentence. The petition was timely filed on August 15, 1995, and petitioner’s application states that he is scheduled to be execut...
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I have before me an application for extension of time in which to file a petition for a writ of certiorari to the Court of Criminal Appeals of Texas. Counsel seek a 59-day extension of the filing deadline “because of the voluminous record below and the breadth of errors that were committed below which warrant review by this Court.” Counsel explain: “The petitioner’s brief to the Court of Crimin...
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The State of South Carolina seeks relief from an order of the Court of Appeals for the Fourth Circuit, in which that court refused to stay the issuance of a writ of habeas corpus to respondents, defendants in criminal proceedings in South Carolina. The State asks that I stay the District Court’s order and allow the State to resume its prosecution of respondents, and stay the enlargement of respon...
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In this case we are called upon to determine whether a district court properly dismissed for lack of subject matter jurisdiction a petition for writ of habeas corpus, filed by a resident alien seeking review of the denial of his request for discretionary relief from deportation. For the reasons which follow, we conclude that the district court had jurisdiction to entertain the petition. Accordingl...
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We must determine whether a court, in resentencing a defendant pursuant to a retroactive amendment to the Sentencing Guidelines, must apply the Guidelines in effect at the time of the resentencing or those in effect at the time of the offense. I In October 1989, an agent of the Bureau of Alcohol, Firearms and Tobacco discovered that Oran Hamilton had purchased a Moss-berg 12-gauge shotgun ear...
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I. Dr. Alfredo Cesar Ubau-Marenco, his wife Sandra Zuniga de Ubau-Zuniga, and two of their children (collectively “petitioners”) appeal a final order of the Board of Immigration Appeals (“BIA”). The BIA dismissed their appeal from the Immigration Judge’s order denying their applications for asylum and withholding of deportation. 8 U.S.C. §§ 1158(a) & 1253(h). Petitioners appeal only the denial of ...
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Willie Easter, Paul Jemerigbe, and Ronnie Lea were convicted by a jury of various charges relating to their participation in an armed bank robbery. They raise several issues concerning their joint trial, and Lea also contests his sentence. We affirm the convictions of all three Appellants and we affirm Lea’s sentence. BACKGROUND In February 1994, Jemerigbe and Easter were tried by a jury for armed...
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OVERVIEW Ollie Johnson appeals a 10-year sentence imposed after he pled guilty to possession of heroin with intent to distribute. In the plea agreement he waived his right to appeal. He now argues that the waiver does not encompass appeal of issues arising out of a law enacted in the period between his plea and sentencing. We are not persuaded. Accordingly, we dismiss Johnson’s appeal as waived...
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OPINION Congress has tried for many years to solve the problem of fractionation of Indian lands. The Supreme Court held Congress’ first effort, Section 207 of the Indian Land Consoli*196dation Act, an unconstitutional taking without just compensation. Congress’ second effort, amended Section 207, is before us now. The district court held that amended Section 207 of the Indian Land Consolidation Ac...
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OVERVIEW Tony Duckett is a Nevada state prisoner serving a sentence of life imprisonment without the possibility of parole. He was convicted of burglary and two counts of first-degree murder. He appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges the State of Nevada violated his rights to a fair trial and sentencing heari...
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Opinion Introduction In the underlying action for ejectment, filed by plaintiff First Boston Credit Corporation, now named California Maryland Funding, Inc., defendant Wyonna Dell Lowe cross-complained to quiet title to the same property, claiming acquisition by adverse possession. Defendant has appealed from the judgment entered in favor of plaintiff, contending it is not supported ...
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Opinion Plaintiff Aspen Enterprises, Inc. (Aspen) sued defendants Gerald and Karen Bodge (collectively Bodge) on a promissory note secured by both real property and personal property. At the outset of the action Aspen repossessed personal property collateral consisting of an inventory of new tires. At trial, the court granted Bodge’s motion for nonsuit based on what was stipulated to be A...
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Plaintiff-Appellant Lena Mullahon brought an action under the Federal Employers Liability Act (“FELA”), 45 U.S.C. § 51, alleging that Defendant-Appellee Union Pacific Railroad (the “Railroad”) is liable for the death of an employee, Glenn Chiquito, who was murdered by a fellow employee, Roberto Perez. Mullahon, administratrix of Chiquito’s estate, appeals the district court’s grant of summary j...
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64 F.3d 1352 64 USLW 2162, 95 Cal. Daily Op. Serv. 7044,95 Daily Journal D.A.R. 12,046 STATE OF ALASKA, Plaintiff-Appellee,v.UNITED STATES of America, Bruce Babbitt, Secretary of theInterior; Edward F. Spang, State of AlaskaDirector, Bureau of Land Management;John M. Morehead; WalterSteiglitz,Defendants-Appellants,andDoyon, Ltd., and Chalkyitsk Native Corp., Defendants. No. 94-36176....
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OVERVIEW The City of Ketchikan (“the City” or “Appellant”) appeals a District Court order granting Cape Fox Corporation’s (“Cape Fox”) motion for summary judgment. The City sought conveyance from Cape Fox of fee title to 38 acres upon which the City’s Beaver Falls hydroelectric powerhouse is located. The district court ruled that the City was not entitled to the land under the Alaska Native Claims...
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Opinion Appellants, defendants below, Jude C. DeJesus (DeJesus) and Ian S. Duncan (Duncan), appeal their convictions, after a jury trial, of one count of murder (Pen. Code, § 187 subd. (a)). With respect to the murder convictions of both appellants, the jury found true the special circumstances that the murder was intentional and carried out for financial gain (Pen. Code, § 190.2, subd. (a)(1))...
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*1833 Opinion Defendant Patrick Michael Hennessey pleaded guilty to attempting to dissuade a witness (Pen. Code, § 137, subd. (b)), two counts of second degree robbery (Pen. Code, § 211), two counts of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)), and six counts of possession of prohibited weapons (Pen. Code, § 12020, subd. (a)). He also admitted three firea...
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Opinion This is an action between two attorneys concerning attorney fees. The fees were earned by work under a contingent fee contract in a personal injury action in which Joseph E. Di Loreto represented Ann M. O’Neill. Defendant Brian Shumake assumed representation of Ms. O’Neill after Di Loreto secured a judgment in her favor. The trial court directed a verdict in favor of Di Loreto on ...
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65 F.3d 758 42 Fed. R. Evid. Serv. 1398, 95 Cal. Daily Op.Serv. 7077,95 Daily Journal D.A.R. 12,085UNITED STATES of America, Plaintiff-Appellee,v.Robert MURPHY, Defendant-Appellant. No. 94-10233. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 4, 1995.Decided Sept. 7, 1995. Michael J. Holston, Drinker, Biddle & Reath, Philadelphia, PA, for de...
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J. Lauritzen A/S and Lauritzen Reefers A/S (“Lauritzen”) appeal the district court’s dismissal of their maritime attachment action for lack of admiralty subject matter jurisdiction. Lauritzen contends that the district court erred in concluding it lacked admiralty jurisdiction over the alleged tortious interference with a contract. Dashwood Shipping Ltd. (“Dashwood”) argues that this court lack...
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Patrick King sued defendants AC & R Advertising, Inc. (“AC & R”), Alvin Cheres-kin, and Harry Koenig, for wrongful termination and age discrimination under California state laws. The district court dismissed King’s claim against Chereskin and Koenig (as individuals) for age discrimination under the California Fair Employment and Housing Act, and granted the defendants summary judgment on King’s...
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Opinion Defendants Lisa and Dan Young accepted plaintiff Jan Ardeene Hofer’s statutory offer to compromise a personal injury action for $11,000 (Code Civ. Proc., § 998; all further section references are to the Code of Civil Procedure unless otherwise indicated) and judgment was taken in accordance with the terms and conditions stated in the offer. Plaintiff moved to vacate the judgment, ...
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Opinion Welfare and Institutions Code section 827, subdivision (a) permits juvenile court records to be inspected by certain specified persons and “any other person who may be designated by court order of the judge of the juvenile court upon filing a petition therefor.” We interpret this language to entrust to the juvenile court’s discretion whether to grant the press access to particular...
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Opinion In this appeal we consider whether common law contractual remedies are available to a purchaser of tax-defaulted real property at a public tax sale. We conclude the exclusive remedies available to such a purchaser are those provided by the Revenue and Taxation Code. Facts and Procedural Background In January 1991, Albert A. Van Petten attended a public auction of tax-def...
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Opinion I. Introduction This appeal is from an order denying a petition to compel arbitration and refusing to stay the action until the dispute had been arbitrated. Because there was no evidentiary basis for the court’s order, we reverse. II. Background Plaintiff, Ronald L. Owens, filed an unverified complaint against defendants, Intertec Design, Inc., and Leon Kopyt, for: breach of an em...
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Susan Barnes appeals from the district court’s grant of summary judgment in favor of Independent Automobile Dealers Association of California Health & Welfare Benefit Plan (“the Plan”). The district court found that the subrogation clause in the Plan’s benefit agreement prevented Barnes from recovering for medical expenses. We conclude that Barnes is entitled to recover for medical expenses and re...
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ORDER Sua sponte, we recall the mandate. Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988). It has come to the attention of the court that Congress adopted the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb-l to 2000bb — 4 (“RFRA”), prior to the date our opinion was filed. RFRA was not called to our attention by the parties in a post-filing petition. Our research did not d...
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This appeal involves a suit to recover for damage sustained by a laser wire bonder during overseas transport. Plaintiff-appellant Amdahl Corporation (Amdahl) appeals an order of the Northern District of California granting partial summary judgment to defendants-appellees Lep Profit International (Lep) and Atlas Consolidated Container, Inc. (Atlas). The district court determined that 46 U.S.C.Ap...
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The defendants, prison officials at Calipat-ria State Prison (“Calipatria”), appeal a district court order requiring them to improve inmates’ access to the prison’s law library. The district court issued the order after entering summary judgment in favor of plaintiff Daniel Dilley, an inmate at Calipatria, on his claim that the defendants violated his right of access to the courts by failing to pr...
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66 F.3d 1025 64 USLW 2169, 95 Cal. Daily Op. Serv. 7123,95 Daily Journal D.A.R. 12,151 Richard MACK, Sheriff of Graham County, Arizona,Plaintiff-Appellee-Cross-Appellant,v.UNITED STATES of America, Defendant-Appellant-Cross-Appellee.Jay PRINTZ, Sheriff/Coroner, Ravalli County, Montana,Plaintiff-Appellant-Cross-Appellee,v.UNITED STATES of America, Defendant-Appellee-Cross-Appellant. Nos...
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dissenting: Athough not discussed by the majority, there is a threshold question of whether plaintiffs may assert their breach of fiduciary duty claims. Plaintiffs’ breach of fiduciary duty claims are brought solely on behalf of Barker and Brown. It is settled law, however, that remedies for alleged fiduciary breaches under ERISA must inure to the benefit of the entire Plan or to all plan particip...
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I On the evening of September 18, 1980, Laura Webster left work with some friends and went to the Green Dolphin, a Tucson bar frequented by students from the University of Arizona. Sometime around midnight, she left the bar with three strange men. The next morning, Webster’s naked body was found lying in the dry bed of the Santa Cruz River. Wrapped in a bloody sheet, Webster had been strangled wit...
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Opinion On March 4, 1993, defendant William Henry DeRouen burglarized two vacation homes, two trailers and a shed in Calaveras County. He was convicted of four counts of first degree burglary, one count of second degree burglary, and one count of receiving stolen property. On appeal, he contends there was insufficient evidence the vacation homes or trailers were “inhabited dwellings” to support...
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Opinion In the first appeal, we concluded that appellant Sim J. had not been adequately advised of his privilege against self-incrimination at the time he admitted a violation of Welfare and Institutions Code section 871, subdivision (b) (felony escape by force from juvenile custody) and a violation of Penal Code section 594 (misdemeanor vandalism). (In re Sim J. (May 26, 1994)...
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*109 Opinion Petitioner Gregory Zazueta appeals from a judgment of dismissal after the trial court sustained a demurrer without leave to amend to his petition for writ of mandate. His petition sought to overturn an arbitration award which upheld the termination of his employment as a public safety officer with respondent County of San Benito Sheriff’s Department. On appeal, petit...
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Opinion The People and defendant Ronnie Lee Nobleton both appeal from the judgment entered following defendant’s plea of guilty to possession of a firearm by a felon and admissions that he suffered a prior felony conviction and served a prior prison term. Their respective contentions are as follows: (1) the People contend the trial court erred in refusing to sentence defendant pursuant to Penal...
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Brenda L. Brock appeals the district court’s dismissal of her claim under the Federal Torts Claim'Act, 28 U.S.C. § 1346(b), § 2671 et seq. (FTCA). The district court found that she had failed to state a claim upon which relief could be granted based on its conclusion that Brock’s FTCA claim was precluded by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII). Broc...
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We affirm in most but not all respects the district court decision dividing land between the Hopi and Navajo tribes. The issues *1450arise from application of a statute Congress passed to deal specifically with this dispute. I. Litigation History. For centuries, the Hopi and Navajo peoples have disagreed on their tribes’ respective rights to lands in northeastern Arizona. The dispute has been the ...
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Richard and Alice Cramer, Warren and Susi Boynton, and Kevin and Dina Monaghan appeal from a decision of the Tax Court upholding deficiencies and various penalties assessed by the Commissioner of Internal Revenue against their 1982 federal income tax payments. We have jurisdiction pursuant to I.R.C. § 7482(a), and we affirm. FACTS AND PROCEEDINGS BELOW In 1972, Richard Cramer founded ...
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65 F.3d 771 103 Ed. Law Rep. 583, 95 Cal. Daily Op. Serv. 7153,95 Daily Journal D.A.R. 12,247 John DOE, Ph.D., and all others similarly situated,Plaintiffs-Appellants,v.LAWRENCE LIVERMORE NATIONAL LABORATORY, John Nuckolls,Director, Defendants,andThe Regents of the University of California, Defendant-Appellee. No. 93-16792. United States Court of Appeals,Ninth Circuit. Argued a...
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Opinion We hold here that a mechanic’s lien claim recorded more than 90 days after completion of the work of improvement is ineffective notwithstanding a later filed notice of completion which erroneously recites a completion date postdating the claim of lien. As we read the applicable statutes, 1 a valid notice of completion serves to shorten the lien-claim filing period. An i...
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Opinion In November 1992, 19-year-old Jerrold Hall, who was Black, was shot and killed by a White police officer employed by the Bay Area Rapid Transit District (BART). The underlying litigation was commenced against BART by Mr. Hall’s parents, Cornelius and Rose Mary Hall (the Halls), who seek damages for wrongful death and for civil rights violations made actionable by the Bane Act (Civ. Code...
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Opinion Adamson Gbadebo-Soda appeals from the judgment entered on a jury verdict finding him guilty of burglary of Bank of America *164 under Penal Code 1 section 459 (count II) and grand theft of Union Bank in violation of section 487 (count V). Appellant does not appeal the jury convictions of receiving stolen property under section 496 (count I), burglary under section 459 (count III) or...
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OPINION Before VOLINN, RUSSELL and OLLASON, Bankruptcy Judges. OVERVIEW Under California law, a debtor does not have automatic homestead protection against a judgment hen that attaches to real property at a time prior to the debtor having made the property a dwelling place. In the order on review, the bankruptcy court held state law governed and denied the debtors’ motion to...
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64 F.3d 1427 95 Cal. Daily Op. Serv. 7200, 95 Daily JournalD.A.R. 12,281UNITED STATES of America, Plaintiff-Appellee,v.Shawn A. DUMAS, Defendant-Appellant. No. 94-30313. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 1, 1995.Decided Sept. 12, 1995. Phillip J. Wetzel, Spokane, WA, for defendant-appellant. Rolf H. Tangvald, Assistant United St...
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Because Benjamin Harris was deprived of his Sixth Amendment right to effective assistance of counsel, we hold that the district court properly granted his petition for a writ of habeas corpus. His defense counsel’s many deficiencies cumulatively prejudiced the defense. The court granted Benjamin Harris’s petition for a writ of habeas corpus for relief from his conviction for aggravated first degre...
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In this ease we are called upon to determine whether the government is precluded from bringing criminal charges against an individual whose property had been subject to a prior civil administrative forfeiture proceeding. For the reasons which follow, we conclude that double jeopardy does not apply- FACTS AND PRIOR PROCEEDINGS On May 19, 1994, United States Border Patrol agents discovered several s...
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ORDER I. Richard Lopez was convicted of conspiring to steal a large shipment of cigarettes and aiding and abetting the theft. 18 U.S.C. §§ 371, 659. We affirmed in an unpublished memorandum disposition. On a motion for court-appointed counsel and an extension of time to file a second petition for rehearing, Lopez argues, inter alia, that the district court (1) failed to determine the cigarett...
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Law enforcement officers conducted a military-style raid to search for a methamphetamine laboratory on rural property in Pierce County, Washington. We decide whether a warrant affidavit procured in part through false statements contained sufficient untainted information to support the existence of probable cause. We also address whether plaintiffs may maintain a suit against an intergovernmental t...
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Petitioner Rafael Arnoldo Castillo-Manza-narez, a native and citizen of Nicaragua, petitions for review of the Board Immigration *794 Appeals’ (BIA) summary dismissal of his appeal from a deportation order denying him asylum and withholding of deportation. Petitioner argues that the BIA erroneously concluded that his Notice of Appeal was not sufficiently specific and that the dismi...
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Opinion Alan Baughman appeals from the judgment after jury verdict in favor of respondents, the State of California et al. 1 Baughman’s suit states that respondents wrongfully destroyed floppy computer disks containing his research while they searched premises in which he rented space pursuant to a search warrant describing various computer hardware and software. The warrant did not describe ...
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Opinion Vince Lombardi is reputed to have said “Winning isn’t everything; it’s the only thing.” These words may have been in defense counsel’s mind when he made his closing argument to the jury. He warned the jurors that a verdict in favor of plaintiff could result in the loss of social services. Counsel took Lombardi’s words too literally. That is why he loses for winning. For ...
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OPINION This appeal concerns Debtors’ claimed exemption of an annuity. The bankruptcy court sustained the objection of the bankruptcy trustee to the claimed exemption, citing In re Pikush, 157 B.R. 155 (9th Cir.BAP 1993), aff'd, 27 F.3d 386 (9th Cir.1994).2 Debtors timely appealed the court’s final order entered on November 1, 1993. We Remand. PACTS AND PROCEDURE BELOW Stephen and Pamela Turner...
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OPINION Before YOLINN, RUSSELL and HAGAN, Bankruptcy Judges. OPINION OVERVIEW Prior to filing his chapter 11 petition, the debtor commenced a suit against defendants for breach of contract in a state court. After the filing, the debtor in possession voluntarily continued with the litigation. Ultimately, defendants prevailed and were awarded attorneys’ fees pursuant ...
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OPINION Before VOLINN, JONES and OLLASON, Bankruptcy Judges. OVERVIEW The debtor’s former wife and her attorney appeal a summary judgment which concluded that transfer of certain proceeds from the sale of the family residence pursuant to post-dissolution orders by the Superior Court issued within 90 days of the debtor’s bankruptcy constituted an avoidable preference pursuant...
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This appeal arises from a grant of summary judgment denying declaratory relief in a coverage dispute between two insurance companies. We vacate pursuant to Continental Cas. Co. v. Robsac Indus., 947 F.2d 1367, 1374 (9th Cir.1991), and American National Fire Insurance Co. v. Hungerford, 53 F.3d 1012, 1019 (9th Cir.1995), and remand with instructions to decline jurisdiction and dismiss. I. On Janu...
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Lynn Dudden cooperated with federal authorities in their investigation of cocaine conspiracies in California and Montana. She was later indicted and convicted for conspiracy to distribute methamphetamine on one occasion, involving the same coconspirators who had been the target of the cocaine investigation. On appeal, she claims the district court should have dismissed the indictment because it wa...
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In this ease, we must determine whether the Federal Aid in Sport Fish Restoration Act (“the Act”), 16 U.S.C. §§ 777-777k, confers a right enforceable under 42 U.S.C. § 1983 to access certain waterways for specified recreational purposes. We hold that the Act does confer rights enforceable under section 1988 and, accordingly, reverse the district court’s decision to the contrary. FACTS The City o...
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Rafael Arreola, a California state prisoner, appeals pro se the district court’s summary judgment for M.O. Mangaong, M.D. (“Dr. Mangaong”). We are compelled by Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir.1988), to vacate and remand because the district court did not advise Arreola, a pro se prisoner litigant, of the requirements of the summary judgment rule, Fed.R.Civ.P. 56. Although ...
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Opinion Statement of the Case Annie Alexander, acting warden of the Correctional Training Facility at Soledad, appeals from an order of the trial court granting Craig Carr’s petition for a writ of habeas corpus, vacating an order revoking his parole, and ordering his immediate discharge from custody. (Pen. Code, § 1507. 1 ) She claims the court erred in concluding that the Department of C...
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We consider the constitutional rights of “jailhouse lawyers.” Appellee Terry Newell, a prisoner at Spring Creek Correctional Center in Seward, Aaska, sued prison superintendent Frank Sauser and other prison officials pursuant to 42 U.S.C. § 1983. Newell alleged that prison officials violated his civil rights by confiscating legal materials from his cell. The district court denied defendants’ motio...
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Queen of Angels/Hollywood Presbyterian Medical Center brought this class action on behalf of all hospitals (“the Hospitals”) that have participated in the Medicare program (a health insurance program for the aged and disabled) since July 1, 1991, against the Secretary of Health and Human Services (“the Secretary”). The Hospitals challenge the Secretary’s interpretation of 42 U.S.C. § 1395cc(a)(l)(...
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OPINION William H. Broach (“trustee”) is the chapter 7 trustee for Lucas Dallas, Inc. (“debt- or”). The trustee filed an adversary proceeding to recover numerous alleged fraudulent transfers by the debtor to GE Capital Mortgage Services, Inc. (“GE Mortgage”), and General Electric Auto Lease, Inc. (“GE Auto”), among others. (Collectively, GE Mortgage and GE Auto shall be referred to as...
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Opinion I. Introduction In this case we modify a $13,971,830 judgment in a class action which challenged the assessment of fees by First Interstate Bank (FICAL) against breaching credit card customers who failed to make minimum monthly payments when due or exceeded their credit limits. We reduce the judgment by $9,076,304, which represents the amount the trial court found to be net r...
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Opinion In this appeal, the defendants and appellants, County of Los Angeles, Michael D. Antonovich, an elected member of the Los Angeles County Board of Supervisors (collectively, the County defendants), Western Jewelry Mart Joint Venture (Joint Venture), Kirkor Suri and Jak Sukyas (collectively, the WJM defendants) seek to overturn a seven-figure judgment, including both compensatory an...
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Pursuant to the United States Supreme Court’s decision in Vemonia School District v. Acton, — U.S. —, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995), and because we are of the opinion that the Oregon Supreme Court would not offer greater protection under the provisions of the Oregon Constitution in this case,1 we affirm the judgment of the district court. AFFIRMED. . We deny the request to certify this q...
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In this case we must decide whether a federal court may, in the context of a Title VII discrimination case, review the Executive’s decision to revoke a security clearance or the equivalent thereof. We conclude that the court lacks jurisdiction to conduct such a review, and we therefore affirm the district court’s grant of summary judgment in favor of the Department of the Navy. FACTS AND PROCEDURE...
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Calvin Jones appeals the district court’s denial of his petition for a writ of habeas corpus. In this court, Jones presses three issues he argues entitle him to habeas relief: (1) racial discrimination in the prosecutor’s exercise of peremptory challenges; (2) failure of the prosecution to disclose Brady material; and (3) ineffective assistance of trial counsel. We review the district court’s d...
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I. Bob Jack Washman appeals from the district court’s denial of his motion to withdraw his guilty plea. Because we find that the district court had not accepted the agreement at the time Washman attempted to withdraw, we hold that the district court erred in refusing to allow him to withdraw. We therefore reverse Washmaris conviction and remand with instruction to allow Wash-man to plead anew. ...
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66 F.3d 213 41 ERC 1861, 26 Envtl. L. Rep. 20,061,95 Cal. Daily Op. Serv. 7295,95 Daily Journal D.A.R. 12,435 STATE OF ARIZONA, Grant Woods, the Arizona Attorney General,Arizona Department of Environmental Quality,Edward Z. Fox, Director, Plaintiffs-Appellees,v.COMPONENTS INCORPORATED, a Delaware Corporation,Plaintiff-Intervenor-Appellant,v.NUCOR CORPORATION, Defendant-Appellee. No. 93...
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We are called upon to decide whether the district court had personal jurisdiction over an Austrian bank. The district court granted a motion to dismiss under Fed.R.Civ.P. 12(b)(2) for lack of jurisdiction. We reverse. I. Appellant Elizabeth Ballard (“Ballard”) brought this class action lawsuit on behalf of herself and other victims of an alleged Ponzi scheme in which investors were pr...
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65 F.3d 1502 25 Envtl. L. Rep. 21,539, 95 Cal. Daily Op.Serv. 7290,95 Daily Journal D.A.R. 12,451 SIERRA CLUB; Headwaters, Inc.; Forest ConservationCouncil; and Oregon Natural Resources Council,Plaintiffs-Appellees,v.Bruce BABBITT, Secretary, U.S. Department of Interior, Defendant,andSeneca Sawmill Company, an Oregon corporation,Defendant-intervenor-Appellant.SIERRA CLUB, Plaintiff-Appe...
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*312 Opinion Plaintiff Leslie Scott (Scott) appeals from a summary judgment entered in favor of CIBA Vision Corporation (CIBA). CIBA manufactures and distributes a contact lens cleaning product called AOSEPT. The trial court determined that Scott’s products liability claims against CIBA, based on inadequate warnings on the AOSEPT bottle, were preempted by the Medical Device Amend...
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Opinion After the denial of his motion to suppress, defendant Scott Monroe Fisher pled guilty to felony possession of methamphetamine, a controlled substance (Health & Saf. Code, § 11377, subd. (a)), and the misdemeanor of being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a)). Defendant also admitted that he had a prior conviction of a serious or violent fe...
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Opinion Defendant Twig Gerald Smith appeals from the denial of his “motion to determine arrearages.” He claims he is entitled to a credit on his child support obligations for withholdings apparently appropriated by his absconded bankrupt employer. After our initial examination of the record, we requested supplementary briefing from the parties regarding the statutory basis for the motion,...
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Hector Zuniga appeals a 30 month prison sentence imposed following his guflty plea to conspiracy to possess stolen goods from interstate shipment in violation of 18 U.S.C. § 371. He charges that the district court erred when it applied section 2B1.(b)(5)(B) of the Sentencing Guidelines to increase his offense level for being “in the business of receiving and selling stolen property.” FACTUAL BA...
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OPINION Various officials of the California Department of Corrections (“DOC”) appeal the district court’s grant of a preliminary injunction against them. The district court found that Pratt, a state prisoner, had demonstrated a likelihood of success on his claim that prison officials had transferred him from one facility to another and had placed him in a double cell in retaliation for Pr...
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Appellant John Allen Newton appeals his conviction of two counts of carjacking (Counts I & III), two counts of use of a firearm during a crime of violence (Counts II & IV), and one count of being a felon in possession of a firearm (Count V). See 18 U.S.C. §§ 2119, 924(c), and 922(g)(1). We affirm. I. Appellant argues that his convictions for carjacking and for the use of a ...
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Eugene Camper appeals the sentence imposed following his guilty plea to trafficking in counterfeit access devices in violation of 18 U.S.C. § 1029(a)(1). Camper contends the sentencing court 1) erred by finding that he merited an upward adjustment for being an organizer or manager of criminal activity involving five or more participants, and 2) engaged in impermissible double counting when it adj...
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OVERVIEW Erma Miller appeals the district court’s grant of summary judgment in favor of the Internal Revenue Service (IRS) on count I of her complaint, holding that she could not recover damages under § 7433 of the Internal Revenue Code for alleged misconduct by the IRS. Miller also appeals the district court’s judgment after trial on count II, awarding Miller the minimum of $1,000 pursuant to ...
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Anthony Farina sued defendant, Mt. Bachelor, Inc., in tort for personal injuries suffered while skiing at Mt. Bachelor’s facility. The district court had diversity jurisdiction over the case. The district court granted summary judgment in favor of Mt. Bachelor on the basis that the release clause which was in Farina’s signed application for a season pass was enforceable. Farina appealed. We rev...
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*381 Opinion Marcos Ortiz appeals following a jury conviction of second degree murder with a knife. 1 He contends the trial court committed Wheeler 2 error and erroneously admitted statements made by the victim, Evelia Juarez. Appellant claims admission of the victim’s statements violated People v. Hamilton (1961) 55 Cal.2d 881 [362 P.2d 473] (Hamilton) (revd. on other grounds in P...
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Opinion David and Nancy Stecks brought an action for libel per se, slander per se, and intentional infliction of emotional distress against psychologist Candace Young. The action concerned an oral and a written report *369 Young made to the child protective services regarding the Steckses and others in which she accused these individuals of child abuse and participation in cult activities. Th...
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Opinion The narrow issue presented in this mandamus proceeding is whether a trial court’s long-established statutory authority to declare an alternative felony, or “wobbler,” a misdemeanor under Penal Code 1 section 17, subdivision (b) was abrogated by the recently enacted “three strikes” law. 2 We conclude it was not and accordingly deny the People’s writ petition. ...
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Opinion Introduction In November 1986, San Mateo County voters enacted Measure A, “The Coastal Protection Initiative,” amending the county’s local coastal program, *532 making further amendments to the local coastal program essentially conditional upon voter approval (with limited exceptions) and providing that the county board of supervisors, by a four-fifths majori...
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65 F.3d 1523 33 Fed.R.Serv.3d 287, RICO Bus.Disp.Guide 8894,95 Cal. Daily Op. Serv. 7352,95 Daily Journal D.A.R. 12,569 ALLWASTE, INC., a Delaware corporation; Allwaste Recycling,Inc., a Delaware corporation; Golden State Recycling, LP, aCalifornia partnership; Circo Glass Company, Inc., aCalifornia corporation, d/b/a Circo Recyclers; TheBassichis Company, Inc., an Ohio corporation, Pl...
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66 F.3d 236 41 ERC 1701, 64 USLW 2196, 32Fed.R.Serv.3d 1451,26 Envtl. L. Rep. 20,063,95 Cal. Daily Op. Serv. 7354,95 Daily Journal D.A.R. 12,580 Josie RAZORE; John Banchero, Plaintiffs-Appellants,v.The TULALIP TRIBES OF WASHINGTON; The Tulalip Section 17Corporation; The Bureau of Indian Affairs; Carol Browner,Administrator of the United States Environmental ProtectionAgency, Defendants...
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Opinion by Judge GONZALEZ; Concurrence by Judge KLEINFELD. On February 1, 1989, Honolulu police arrested Assistant United States Attorney Leslie E. Osborne Jr. for drunk driving. Two days later, he hired solo practitioner Benjamin B. Cassiday III to represent him in connection with that charge. Sometime later in February, petitioner Center Art Galleries — Hawaii Inc. (“Center Art”), whom Osborne ...
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896 F.Supp. 982 (1995) UNITED STATES of America, Plaintiff, v. Emanuel LACY, et al., Defendants. No. CR-94-0384 MHP. United States District Court, N.D. California. August 18, 1995. William Weiner, William Weiner Law Offices, San Francisco, CA, for defendant Gerome Lacy aka Red. Frank Z. Leidman, Frank Z. Leidman Law Offices, San Francisco, CA, for defendant Lamarr Lacy. Judd C. Iversen, Judd C. I...
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896 F.Supp. 1492 (1995) Gary L. HILL, et al., Plaintiffs, v. RALPHS GROCERY COMPANY, et al., Defendants. No. CV 94-806-AAH. United States District Court, C.D. California. August 7, 1995. *1493 *1494 Roxanne A. Davis, Frank Hakim, Law Offices of Kourosh Sadighpour, Los Angeles, CA, for plaintiffs. Mark W. Robbins, Robert F. Millman, Littler, Mendelson, Fastiff, Tichy & Mathiason, Los Angeles, ...
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ORDER AND OPINION GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES Before the Court is plaintiff Johanna Trevino’s motion for attorney’s fees pursuant to 42 U.S.C. § 1988, which came for hearing regularly on March 20, 1995. This case, juxtaposed with two previous cases in which the Court awarded attorney’s fees to the same counsel, Gomez v. Gates, 804 F.Supp. 69 (C.D.Cal.1992), ...
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MEMORANDUM OF DECISION Plaintiff Federal Home Loan Mortgage Corp. (“Freddie Mae”) filed a complaint against the Defendant Robert O. Potter (“Potter”) seeking a determination of the non-dischargeability of a $4.9 million fraud judgment (“fraud judgment”) that was previously entered in Freddie Mac’s favor by the District Court. Freddie Mac filed a Motion for Summary Judgment contending that...
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66 F.3d 241 64 USLW 2187, 130 Lab.Cas. P 11,411,10 IER Cases 1697,95 Cal. Daily Op. Serv. 7388,95 Daily Journal D.A.R. 12,627 CHAUFFEURS, SALES DRIVERS, WAREHOUSEMEN & HELPERS UNIONLOCAL 572, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,AFL-CIO, Plaintiff-Appellant,v.WESLOCK CORPORATION; Westinghouse Electric Corporation,Defendants-Appellees. No. 94-55613. United States Court of Ap...
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Webster S. Lucas, a California state prisoner, appeals pro se the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 action. Lucas alleged that the Department of Corrections and the California Men’s Colony-West (“CMC-West”) (collectively “appel-lees”) showed deliberate indifference to his safety and serious medical needs when they maintained an unsafe prison drainage system and provide...
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Opinion Florentino Frank Dominguez was convicted by jury of second degree robbery and carjacking, both with the use of a firearm (Pen. Code, §§211, 215, 12022.5), and the court found true allegations of a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)), and of three prior convictions for which he had served a separate prison term (Pen. Code, § 667.5, subd. (b)) and that a...
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*430 Opinion Convicted by jury of assault with a firearm (Pen. Code, § 245, subd. (a)(2); count I; statutory references, unless otherwise noted, are to the Penal Code) and discharging a firearm at an occupied building (§ 246; count II) appellant contends: (1) the intent required by section 246 is “the intent to strike the building”; (2) imposition of the upper term on count II was an abuse of...
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*458 Opinion Introduction Appellant Patricia M. Edwards (Wife) appeals from an order after a hearing on her order to show cause seeking enforcement orders against respondent Leslie E. Edwards (Husband) arising from their 1981 marital dissolution judgment. Wife sought orders to enforce a provision of that judgment which stated each party would maintain a will giving one-...
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Opinion This case presents issues regarding the application of Penal Code section 832.7, Evidence Code section 1043, and the constitutional right to privacy to a novel factual situation. Specifically, we are asked to determine whether, when a former police officer testifies against a police department in a lawsuit, the law enforcement agency which employed the officer may allow its lawyer...
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*450 Opinion I Doris and Victor Hardin married in 1961. On June 28, 1969, Victor walked out of their apartment and although he and Doris continued their economic relationship, saw each other often, and communicated regularly, they eventually dissolved their marriage. None of the above is so unusual. Many couples experiencing marital problems stop living in the same resi...
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Joseph E. Sharpe appeals from an order of the district court granting summary judgment to his former employer, American Telephone & Telegraph, Co. (AT & T), on his state law claims alleging disability discrimination in violation of Washington Revised Code § 49.60, breach of contract, negligent and intentional infliction of emotional distress, and negligence. Sharpe also appeals vario...
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Kevin Lee Nelson appeals his conviction for attempting and conspiring to structure a money laundering transaction. Undercover government agents posing as drug dealers came to the car dealership where Nelson worked, proposing to buy a car with cash. Nelson suggested ways to structure the cash purchase of a car to avoid the dealership’s requirement under federal law to report cash transactions ov...
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ORDER This is an appeal from the district court’s denial of a second petition for habeas corpus by Jimmie Wayne Jeffers, an Arizona prisoner under a sentence of death scheduled to be carried out at 12:01 tomorrow morning, September 13, 1995, about four hours from now. The district court denied the petition and the stay of execution, but granted a certificate of probable cause. Jeffers now asks us ...
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dissenting from the order. We dissent from the majority’s order. For substantially the reasons stated in the three-judge panel’s order granting a stay of execution to allow briefing and argument to the three-judge panel, we would stay Jeffers’s execution so that the en banc panel can be properly briefed and hear argument....
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Opinion Appellant Robert Lee Young appeals a judgment of May 25, 1994, which requires him to pay $19,507.53 in restitution to the victim of his crime, P.C. Sacchi, Inc. We conclude the trial court properly imposed this restitution requirement upon appellant, despite the fact that it was not included as part of the initial sentence, execution of which was suspended, but rather was imposed as a c...
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38 Cal.App.4th 834 (1995) 45 Cal. Rptr.2d 322 THE PEOPLE, Plaintiff and Appellant, v. $1,930 UNITED STATES CURRENCY, Defendant; JOSE MARTINEZ TREJO, Claimant and Respondent. Docket No. B082486. Court of Appeals of California, Second District, Division Seven. September 21, 1995. *836 COUNSEL Gil Garcetti, District Attorney, Patrick D. Moran, Richard De La Sota and Dirk L. Hudson, Deputy District A...
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*467 Opinion The petition in this case seeks reversal of summary adjudication granted by the trial court in favor of attorney defendants as to the professional negligence and breach of fiduciary duty counts contained in a broader action by certain limited partners against attorneys and their client. The lawyers, Sheppard, Mullin, Richter & Hampton and Christopher B. Neils (hereaf...
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ORDER DENYING DEFENDANT’S § 2255 MOTION ISSUE The issue before the Court is whether a civil forfeiture to which a defendant explicitly consented in the plea agreement disposing of his criminal case, and which consent was a specifically bargained-for term of the agreement, violates his rights under the Double Jeopardy Clause of the Fifth Amendment. The Court finds that it does not. BACKGROUN...
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We must decide whether 20 U.S.C. § 1091a(a)(2)(B), which retroactively abrogates time-bars on the collection of student loans, applies to Kay Millard’s loans. We hold that the statute does apply to the loans at issue. The court granted defendants’ motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I In 1967, Kay Millard obtained two student loans, eac...
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Plaintiffs-appellants, the American Jewish Congress and individual members (collectively “the Jewish Congress”), challenge under the religion clauses of the United States and California constitutions the action of defendants-appellees, the City of Beverly Hills and individual officials (collectively “the City” or “Beverly Hills”) in permitting defendant-in-tervenor-appellee Chabad of California, I...
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Ronnie Von Robinson, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition seeking 119 days additional custody credits toward his sentence. Robinson argues that California Penal Code § 2900.51 violates the Equal Protection Clause by making an arbitrary distinction between multiple offenders sentenced to concurrent sentences on the same day ...
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Opinion In this appeal, we hold that freedom of speech is unconstitutionally abridged by a statute which requires a proponent of an initiative measure to certify that no dedicated appropriation has been included in the measure in exchange for a campaign contribution for purposes of qualifying the measure for the ballot. Senate Bill No. 424, 1991-1992 Regular Session (Stats. 1991, ch....
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Opinion I. Introduction The District Attorney for the County of Los Angeles appeals from an order determining that Sydnia Carole Salas was not required to pay interest on child support arrearages owed by her for the support of her minor child. We reverse. II. Background On April 14, 1993, a judgment was entered ordering Ms. Salas to pay $400 and $100 per month for child support and care costs res...
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ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT The Equal Employment Opportunity Commission brought this age discrimination suit against a school district and the union representing the district’s teachers. The defendants negotiated a salary structure that gives higher pay to teachers with greater experience. The district prefers to hire inexperienced teachers to minimize its payr...
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This appeal arises from the now infamous “Rodney King incident” of March 3, 1991. Plaintiff-appellant Bryant Allen was a passenger in Rodney King’s car when it was pulled over by police officers. King had been speeding and failed to obey police directions to stop. During the time King was being beaten, Allen was forced at gunpoint to lie on the ground, handcuffed, frisked, placed in a police car, ...
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66 F.3d 1489 41 ERC 2033, 33 Fed.R.Serv.3d 589, 25Envtl. L. Rep. 21,546,95 Cal. Daily Op. Serv. 7459,95 Daily Journal D.A.R. 12,787 FOREST CONSERVATION COUNCIL; Maricopa Audubon Society;Carlson Forest Watch; Greater Gila BiodiversityProject; Southwest Center forBiological Diversity, et al.,Plaintiffs-Appellees,v.UNITED STATES FOREST SERVICE, Defendant,The State of Arizona, ex rel. M.J. ...
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The government appeals the district court’s order granting the motions of defendants-appellees Felipe Zermeno, Ramon Flores-Rivas and Guillermo Silva-Sosa (collectively “defendants”) to suppress evidence found pursuant to a search of a “stash house.” The government claims the district court erred in ruling that Zermeno and Silva-Sosa have standing to challenge the search, that the search warrant w...
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OPINION In an action brought pursuant to 42 U.S.C. § 1983, we consider whether the City of Seattle’s refusal to provide water service to the new tenant of a residence based on a prior tenant’s unpaid water bill is constitutionally permissible. The City of Seattle (the “City”) appeals the district court’s grant of partial summary judgment in favor of Maria O’Neal and the issuance of a permanent in...
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Opinion by Judge THOMPSON; Dissent by Judge FERGUSON. Carlos Oswaldo Cordova-Perez was convicted in federal district court of violating 8 U.S.C. § 1326(b)(2). In this appeal, he contends his prosecution was precluded by a state court plea agreement. He also contends the district court violated Rules 11(e) and 32(b)(3) of the Federal Rules of Criminal Procedure when, after accepting his plea of gui...
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67 F.3d 203 1995 A.M.C. 2888, 95 Cal. Daily Op. Serv. 7465,95 Daily Journal D.A.R. 12,807 John PAPAI, Joanna Papai, Plaintiffs-Appellants,v.HARBOR TUG AND BARGE COMPANY, Defendant-Appellee. No. 93-15132. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 9, 1994.Decided Sept. 25, 1995. 1 Thomas J. Boyle, Law Offices of Thomas J. Boyle, San F...
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Opinion A jury convicted appellant Rodney Allen Wrice of two counts of first degree burglary and one count each of felony driving a vehicle without consent, misdemeanor resisting arrest, felony reckless driving while evading a police officer, and misdemeanor reckless driving. The information alleged enhancements for one prior serious felony and two *770 separate prior prison terms. During tri...
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*750 Opinion This case presents the issue of whether a de facto parent has standing to challenge the denial of reunification services or contest the reasonableness of services offered. Because a de facto parent, like a stepparent, has no right to reunification services, we conclude that a de facto parent lacks standing to raise reunification issues. Factual and Procedural Background Cliff...
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Opinion Ralphs Grocery Company (Ralphs or the employer) seeks a writ of review after the Workers’ Compensation Board (the Board) granted Dawn R. Lara’s (Lara) petition for reconsideration and awarded her a 10 percent penalty under Labor Code 1 section 5814 for Ralphs’s “unreasonable” delay in providing medical treatment and temporary disability benefits. Lara had requested a se...
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Opinion Plaintiff Heritage Cablevision of California, Inc., sued defendant Ron Pusateri in the municipal court for civil liability under Penal Code section 593d (unauthorized connection to cable television system) 1 and conversion. The trial court rendered judgment for defendant following a court trial. It disposed of the section 593d cause of action by granting defendant’s pretrial motion fo...
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Terry N. Taylor appeals his conviction of five counts of filing false claims against the United States in violation of 18 U.S.C. § 287, and one count of making false statements in violation of 18 U.S.C. § 1001. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, in part, and vacate and remand, in part. Taylor contends that the district court erred by refusing to submit materiality, an e...
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OVERVIEW Appellant/Cross-Appellee General Signal Corporation (“GSX”) appeals the district court’s judgment in favor of appellee/cross-appellant MCI Telecommunications Corporation (“MCI”) in its diversity action alleging fraud and breach of contract arising out of an *1504 agreement to develop the INpath, a telecommunications device. MCI cross-appeals from the district court’s ...
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ORDER Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this ease be reheard by the en bane court pursuant to Circuit Rule 35-3. ...
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Morales and Golb were two of twelve defendants named in a fifteen-count indictment charging numerous counts of money laundering, drug trafficking, conspiracy and forfeiture. Following a four-month trial, a jury convicted Morales of five counts of money laundering and one count of conspiracy to import drugs, and Golb of four counts of money laundering. Both defendants’ money-laundering counts were ...
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The Idaho District Court held that the state of Idaho does not recognize a general duty of care owed by attorneys to former clients. Accordingly, the district court granted Herzog’s motion for summary judgment. Damron appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291 and we reverse and remand to the Idaho District Court for trial. FACTS In 1982 Plaintiff-Appellant Paul Damron...
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Yin Fen Flores, a.k.a. Eileen York, a native and citizen of Taiwan, appeals the decision of the Board of Immigration Appeals (“BIA”), affirming the Immigration Judge’s (“IJ”) denial of Flores’s request for suspension of deportation pursuant to section 244(a)(1) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1254(a)(1). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). I ...
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67 F.3d 766 32 Fed.R.Serv.3d 1126, Comm. Fut. L. Rep. P 26,506,95 Cal. Daily Op. Serv. 7490,95 Daily Journal D.A.R. 12,869 COMMODITY FUTURES TRADING COMMISSION, Plaintiff-Appellee,v.NOBLE METALS INTERNATIONAL, INC., Moorgate Ltd., et al.,Defendants-Appellants.COMMODITY FUTURES TRADING COMMISSION, Plaintiff-Appellee,v.NOBLE METALS INTERNATIONAL, INC., Defendant,andRichard Schulze, Defendant...
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Opinion Plaintiff and appellant Allstate Insurance Company (Allstate), a corporation, appeals a judgment denying its prayer for declaratory relief. Defendant and appellant Daniel Gonzalez (Gonzalez) cross-appeals the judgment. The essential issues presented are whether Gonzalez’s uninsured motorist claim against Allstate is barred by the statute of limitations or by his unreason...
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Opinion Larry Jack Vacca appeals from the judgment entered following a jury trial that resulted in his conviction of assault with a firearm on a peace officer in which he personally used a firearm (Pen. Code, §§ 245, subd. (d)(1), 12022.5). 1 He contends: “I. The trial court erred by failing to exercise its discretion as to whether to impose the firearm use enhancement^] [^Q II...
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Opinion Plaintiffs and appellants Ruth Hightower (Hightower), Alicia Flowers (Flowers) and Coralene Hayes (Hayes) (sometimes collectively referred to as Hightower) appeal a judgment following a grant of judgment on the pleadings in favor of defendant and respondent Farmers Insurance Exchange (Farmers). The issues presented are whether exhaustion of administrative remedies under the C...
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Opinion A patient died from the complications of an undiagnosed ectopic pregnancy after seeking medical care from respondent Hosni Nagib Fahmy, M.D. The Medical Board of California, Division of Medical Quality (the Medical Board) took disciplinary action against Fahmy as a result of the patient’s death. The discipline imposed by the Medical Board was overturned by the trial court on a lac...
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Opinion Plaintiff appeals from a judgment of dismissal entered after he failed to furnish security as ordered by the superior court 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.) Plaintiff contends the finding he is a vexatious litigant is not supported by th...
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Opinion David Duran Jimenez was charged with failing to appear on a felony charge under Penal Code section 1320.5, 1 and the trial court dismissed the action under section 995. The district attorney appeals, contending it presented sufficient evidence to justify a trial of the matter. We reverse. *798 Jimenez was convicted on felony drug charges and we affirmed. A...
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66 F.3d 1002 32 Fed.R.Serv.3d 1094, 95 Cal. Daily Op. Serv. 7526,95 Daily Journal D.A.R. 12,909 In re Aarl HUNTER, Debtor.Sherwin KALT, Appellant,v.Aarl HUNTER, individually and as Trustee of The HunterFamily Trust, and as Trustee of the Aarl R.Hunter, D.D.S., Inc. Profit and PensionFund, Appellees. No. 93-17327. United States Court of Appeals, Ninth Circuit. Argued and Submitt...
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66 F.3d 255 1995-2 Trade Cases P 71,137, 36 U.S.P.Q.2d 1377,95 Cal. Daily Op. Serv. 7532,95 Daily Journal D.A.R. 12,913 The WILLIAM H. MORRIS CO., Plaintiff-counter-defendant-appellant,v.GROUP W, INC.; Jerry Wilson,Defendants-counter-claimants-appellees.The WILLIAM H. MORRIS CO., Plaintiff-counter-defendant-cross-appellee,v.GROUP W, INC.; Jerry Wilson,Defendants-counter-claimants-cross-...
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In the primary appeal, we are called on to put an end to a lawsuit that a bankruptcy court in a collateral proceeding has already held is released and barred. In the cross-appeal, we consider how much attorney misconduct a court should tolerate before imposing sanctions. I. This ease began with the bankruptcy of the Marbella Golf and Country Club (the Country Club), which had operated at a loss si...
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*880 Opinion A person is injured when a train hits his truck. In an effort to mitigate its liability for damages the railway sues the injured person’s employer under the Americans With Disabilities Act. (42 U.S.C. § 12101 et seq., hereinafter ADA.) Does the railway have standing? No. Facts John Romines was employed by Hadley Auto Transport. He was injured when a train operated by the Vent...
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Opinion Petitioner seeks a writ of prohibition directing the superior court to set aside its order denying his Penal Code section 995 1 motion to dismiss an allegation of prior felony convictions. *904 Petitioner, charged with two prior felony convictions under section 667, subdivisions (b) through (i) 2 , popularly known as the “Three Strikes” law, mak...
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Opinion Penal Code section 790 is a venue statute. It provides that jurisdiction of a criminal action for murder may be in one of three counties: where the fatal injury was inflicted, where the injured party dies, or where the body was found. Here we hold that the constitutional right of vicinage is satisfied if the trial is held in any of the three counties specified in Penal Code section 790. *8...
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Opinion Defendant was convicted of possession and cultivation of marijuana and possession of illegal firearms. He argues the guns were *868 recovered as fruit of a coerced confession and, thus, should have been suppressed. We agree and reverse the firearms convictions. Statement of Facts Based upon information from defendant’s estranged wife, Sheriff’s Detective Smiley obtained a warran...
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*894 Opinion Appellants are three of the several thousand plaintiffs 1 seeking relief for injuries resulting from the alleged airborne release of hazardous material stored at General Chemical Company (GCC) in Richmond, California. The present appeal is from the judgment of dismissal as to defendant and respondent Contra Costa County (the County) entered after the court...
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OPINION Appellant/Cross-Appellee Martin Jimeno appeals the district court’s judgment as a matter of law in favor of Appellee/Cross-Appellant Mobil Oil Corporation (“Mobil”) on Jimeno’s claim of employment discrimination because of a physical disability, in violation of California’s Fair Employment and Housing Act (“FEHA”), Cal.GoVt Code §§ 12920-12940. The district court found that Jimeno...
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This is an appeal from a decision of the Bankruptcy Appellate Panel of the Ninth Circuit (“BAP”) affirming the bankruptcy court’s grant of summary judgment to Plaintiffs-Appellees John and Miriam Gayden (the “Gaydens”) on their claim of nondischarge-ability. See 11 U.S.C. § 523(a)(2)(A). We have jurisdiction under 28 U.S.C. § 158(d) and affirm. FACTS Debtor-Appellant Emil Nourbakhsh (“Nourbakhsh”)...
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Opinion by Judge BRUNETTI; Dissent by Judge LAY. Melanie Rose Ceniceros sued the Board of Trustees of the San Diego School District (the District) seeking declaratory and injunc-tive relief and damages. Her complaint alleged that, by denying her religious club the opportunity to meet during lunch as other clubs were allowed to, her high school, University City High School (UCHS), violated her righ...
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68 F.3d 1131 64 USLW 2287, Bankr. L. Rep. P 76,652,95 Cal. Daily Op. Serv. 7577,95 Daily Journal D.A.R. 12,982,Pens. Plan Guide P 23,914 G. Steven PARKER, Plaintiff-Appellant,v.David L. BAIN, Esq.; Pacific Ship Repair & FabricationProfit Sharing Plan, Inc.; Bank of AmericaNational Trust & Savings Association,Defendants-Appellees. No. 94-55123. United States Court of Appe...
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OPINION Vernon Watts appeals his conviction and sentence for possessing with the intent to distribute crack cocaine. We affirm the conviction but vacate Watts’s sentence and remand for resentencing. I. FACTUAL BACKGROUND The events leading to Watts’s arrest and conviction began with the suspicions of Watts’s probation officer, John Demmel. Although California’s probationers are ...
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Pima County Sheriff Clarence Dupnik and several of his deputies appeal a series of district court judgments and orders in favor of prisoner Mustafa B. Shabazz, formerly known as Anthony D. Mitchell, resulting from multiple actions that Shabazz had brought under 42 U.S.C. § 1983. We affirm in part, reverse in part, and remand for further proceedings. BACKGROUND I. Appeal No. 93-16955 Shabazz was he...
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Larry Joseph Lewis appeals his jury conviction on twelve counts of bank fraud under 18 U.S.C. § 1344 and two counts of wire fraud under 18 U.S.C. § 1343. This appeal requires us to resolve a statutory construction issue of first impression — whether a state chartered, non-federally insured branch of a foreign bank is subject to the bank fraud statute. We also consider Lewis’ challenge to jury i...
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Opinion by Judge T.G. NELSON; Dissent by Judge LEAVY. Douglas E. Canon and Robert J. Delang appeal their sentences contending that it was a violation of the Ex Post Facto Clause of the Constitution for the district court to consider a sentencing guideline provision adopted after the date of the crime as a guide in an upward departure. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1...
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Opinion A local agency proposed a sales tax to fund certain transportation projects, and the tax was approved by a majority but less than two-thirds *227of the electors voting on it. The agency filed this original proceeding in the Court of Appeal for a writ of mandate to validate the tax, contending the tax does not violate either (1) the requirement of a two-thirds voter approval imposed by Gov...
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Opinion American President Lines, Ltd. (APL), paid over $4.2 million in additional fees assessed by the Department of Motor Vehicles (DMV), for registering its fleet of truck trailers during 1989-1991. This appeal and related writ petition question the DMV’s determination of those fees and place under scmtiny the procedures for challenging them. We conclude the DMV wrongly assessed additi...
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Opinion Petitioners Las Tunas Beach Geologic Hazard Abatement District and the board of directors thereof (the District) seek a writ of mandate directing the trial court to vacate its order denying the District’s motion for summary judgment and to enter instead an order granting the motion. The essential issue is whether real party in interest City of Malibu (the City) was entitled i...
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Opinion I Introduction A jury convicted appellants Wallace Arthur Bills and Maurice Frederick Alston of first degree murder, robbery, and burglary, with the special circumstances that the murder was committed in the course of robbery and burglary, and with enhancements that each personally inflicted great bodily injury and that Alston personally used a knife. The prosecution sou...
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Opinion This medical malpractice case involves the application of Code of Civil Procedure section 667.7 (all further references to undesignated sections are to the Code of Civil Procedure). Section 667.7 was enacted as part of the Medical Injury Compensation Reform Act of 1975 (MICRA). The section allows a medical malpractice judgment awarding “future damages” of at least $50,000 to be paid on a ...
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Opinion Appellants William M. and Tona E. Moores brought this action for declaratory and injunctive relief, claiming that they had an easement over property owned by respondent William D. Walsh. Following a court trial, judgment was entered in favor of respondent. We affirm. I. Background In 1993, appellants purchased a 40-acre parcel of unimproved land (the Moores parcel) ...
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*998 Opinion The Retirement Board of the Santa Barbara County Employees’ Retirement System appeals a judgment in administrative mandamus that directs it to grant a disability retirement to Fairy Levingston. The trial court’s findings are final. The board does not have a second opportunity for another hearing. (Code Civ. Proc., § 1094.5.) We affirm. Facts On July 25, 1991, Fairy Levingston...
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Opinion Summary The principal issue on appeal in this eminent domain proceeding is whether the defendant landowner properly disclosed the valuation evidence he offered at trial. We find that he did not. Plaintiff and appellant Padre Dam Municipal Water District (Padre) acquired 4.2 acres of land owned by defendants and appellants Joseph M. Burkhardt et al. (Burkhardt). 1 Prior to trial Bu...
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Among the issues raised in this case are what a lawyer can do when she feels her client presents a danger in court, whether she must be relieved as counsel, and whether in a perjury prosecution the element of materiality must be submitted to the jury. Issues *805 of invited error and sentencing guidelines are also raised. I. Facts Keys was serving time in federal prison f...
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These eases arise out of prior litigation brought by various railroads challenging provisions of the Oregon property tax scheme under the Railroad Revitalization and Regulatory Reform Act. Pending the outcome of the primary litigation, the disputed taxes were placed into escrow accounts pursuant to a consent order entered upon stipulation of the parties. Eventually, Oregon prevailed on the merits....
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Linda Lujan appeals the dismissal of her qui tam and retaliation claims brought pursuant to the False Claims Act, 31 U.S.C. § 3729 et seq. (1983 & Supp.1994) (FCA), against her former employer, Hughes Aircraft Company. The district court dismissed Lujan’s complaint because Lujan disclosed the nature and existence of her qui tam claim to the Los Angeles Tim...
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ORDER We affirm the district court’s order on remand for the reasons stated in the district court’s Memorandum and Order Re Attorneys’ Fees and Costs (On Remand), filed September 14,1993, attached as Appendix A. APPENDIX A UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA Jack Wayne Friend, et al., Plaintiffs, v. Ronald Kolodzieczak, et al., Defendants. No. C 87-0161 MHP MEMORANDUM AND ...
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Opinion In this case we examine the specific terms of the insurance policies before us to determine whether a third level insurer “drops down” to assume the obligations of a second level insurer when the second level insurer becomes insolvent. We agree with the trial court that the third level policy incorporates an endorsement that unambiguously precludes it from “dropping down" to provi...
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Opinion Defendant Mid-Century Insurance Company appeals a portion of the judgment favoring plaintiff Gary Hughes on his third party complaint against Mid-Century for benefits under its liability insurance policy issued to Hughes’s judgment debtor. Mid-Century contends the superior court erred in concluding the policy’s language involving supplementary cost payments was ambiguous and thus ...
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Opinion On this appeal we are asked to determine the statute of limitations for an action by a bank against a former customer for repayment where the bank honored a check drawn by the customer but neglected to debit the customer’s account. We conclude the applicable limitations period for such an action is three years from the time the bank discovers its mistake, pursuant to Code of Civil...
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*1201 Opinion Appellant Linda Romero filed this discrimination action against her current employer, respondent American President Lines, Ltd. (APL). Appellant contends she should have received certain internal transfers or a promotion to similar positions within APL. Appellant claims the failure to grant her these other positions constituted discrimination based upon her sex, her...
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Opinion I Ronald and Lori L. Padilla’s marriage ended in 1990. Pursuant to a written agreement incorporated into their interlocutory decree, Ronald was ordered to pay $550 in monthly child support. In 1993, after new child support guidelines were enacted and the visitation schedule changed. Lori filed an order to show cause seeking an increase in child support and a contribution towa...
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Opinion Mohammed Chowdhury died in an automobile accident when his vehicle was broadsided in an intersection. The driver of the other vehicle failed to stop before proceeding through the intersection even though the traffic signals were inoperative in all directions due to an area-wide electrical power outage. The decedent’s wife and daughter sued the City of Los Angeles (the City) for failing ...
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11 Cal. 4th 274 (1995) 902 P.2d 259 45 Cal. Rptr. 2d 241 SORRELL TROPE et al., Plaintiffs and Appellants, v. BERTRAM BERNARD KATZ, Defendant and Respondent. Docket No. S043227. Supreme Court of California. October 2, 1995. *277 COUNSEL Trope & Trope and Thomas Paine Dunlap for Plaintiffs and Appellants. Lorraine C. Gollub, Gordon Law Offices, Frieda Gordon, Hill, Farrer & Burrill and Stev...
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Opinion This appeal is from a judgment in favor of defendants following the grant of their motion for nonsuit in a legal malpractice action. We conclude that in granting a nonsuit, the trial court erroneously mled as a matter of law on an issue which, under the circumstances of this case, is one of fact: whether defendants breached the professional standard of care by adequately and timel...
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*1343 Opinion Cross-complainants and appellants Arthur Young & Company, Richard E. Lamping, Thomas W. Blumer and Ernst & Young (collectively Young) appeal an order dismissing their cross-complaint against attorneys James B. Helmer, Jr., and Robert L. Neff, Jr. (Helmer & Neff), cross-defendants and respondents, pursuant to a “good faith” settlement. The essential issue presen...
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Defendants Nevada County and Nevada County Sheriff, Bill Heafey (collectively “the County”), appeal the district court’s award to plaintiffs of $38,061 in attorney’s fees pursuant to 42 U.S.C. § 1988. Having jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291, we affirm the district court’s award of costs to plaintiffs, but vacate and remand the attorney’s fee award. I. ...
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Opinion by Chief Judge WALLACE; Dissent by Judge REINHARDT. Vargas challenges the sentence imposed for his securities fraud conviction. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm. I In 1985, Vargas began working for Reserve Financial Group, which was formed in 1984 by John Anthony Genetti for t...
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Opinion In People v. Wims (1995) 10 Cal.4th 293 [41 Cal.Rptr.2d 241, 895 P.2d 77] our Supreme Court examined both the nature of the sentence enhancement for personal use of a deadly or dangerous weapon required by Penal Code section 12022, subdivision (b), and also the standard for reviewing instructional error. 1 In this case we undertake the same examina...
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Opinion Appellant Ord & Norman (Ord), a law firm, contends the trial court wrongly granted summary judgment against Ord’s claims that the Surplus Line Association of California (SLA) negligently breached a duty of care owed to Ord regarding its purchase of insurance from a foreign, nonadmitted insurer that later became insolvent. We find no breach of duty on the part of SLA and therefore ...
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Opinion After the trial court denied Major Lee Thomas’s motion to suppress evidence obtained in a warrantless search of his “residence”—a cardboard box located on a public sidewalk—Thomas pled no contest to one count of receiving stolen property. He now appeals, contending he had a reasonable expectation of privacy in his box and that his motion should have been granted. We affirm. Facts Ea...
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Opinion Plaintiffs and appellants Naomi and Jeolfa Campanano appeal from a summary judgment entered against them and in favor of defendant and respondent California Medical Center (Hospital). We are asked to determine the accrual date of a cause of action for “bystander” negligent infliction of emotional distress. We conclude, as a general rule, that the cause of action accrues at the tim...
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Opinion The trial court ordered a referendum measure removed from the November 1994 Merced County election ballot. Proponents of the referendum measure appealed and sought a stay in this court to permit the measure to remain on the ballot while the appeal was pending. We denied the stay on August 11, 1994. We now affirm the judgment. Facts and Procedural History The underlying f...
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Opinion On October 5, 1993, a jury convicted appellant Sally Ann Whitham of murdering 11-year-old Denise Z. by the administration of poison. (Pen. Code, 1 §§ 187, subd. (a); 190.2, subd. (a)(19).) Whitham was also convicted of holding Denise and her sister, Crystal Z., in involuntary servitude (§ 181) and of physically and sexually abusing both girls (§§ 273a, subd. (1) [now § 273a, former su...
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Appellant Norman Gotcher (“Gotcher”) appeals the district court’s dismissal of his civil rights action against Tana Wood, the Superintendent of the Washington State Penitentiary, and others (collectively ‘Wood”). Goteher’s appeal presents two issues: (1) does Gotcher possess a due process liberty interest in the accrual of good conduct time, and (2) does he possess a due process liberty interes...
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67 F.3d 830 104 Ed. Law Rep. 48, 12 A.D.D. 689,95 Cal. Daily Op. Serv. 7771,95 Daily Journal D.A.R. 13,329 Lionel POOLAW, and Daphne Poolaw, as next friends of LionelB. Poolaw III, Minor Child, Plaintiff-Appellant,v.Diane BISHOP, Superintendent of Public Instruction; ArizonaDepartment of Education, Parker United SchoolDistrict No. 27; and Parker UnifiedSchool District, Defendants-Appelle...
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67 F.3d 234 41 ERC 2113, 26 Envtl. L. Rep. 20,071,95 Cal. Daily Op. Serv. 7774,95 Daily Journal D.A.R. 13,335 PUBLIC SERVICE COMPANY OF COLORADO, Plaintiff,andUnited States of America, Plaintiff-Appellant,v.Phillip E. BATT, in his official capacity as Governor of theState of Idaho; State of Idaho, Defendants-Appellees. No. 95-35608. United States Court of Appeals,Ninth Circuit. ...
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This litigation concerns the validity of regulations promulgated by the Secretary of the United States Department of Agriculture, and the Director of the Oregon Department of Human Resources, to implement the anti-fraud provisions of the Food Stamp Act, 7 U.S.C. § 2015. The statute provides that any person found guilty of violating the Food Stamp Act “shall, immediately upon the rendering of such ...
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OPINION Appellee, Leon Pizante (the “Debtor”) filed a petition for relief in bankruptcy on January 4, 1991. The trustee instituted a § 548 1 action against the Debtor and his wife (“Mrs. Pizante”), which resulted in a judgment in favor of the trustee. In the § 548 proceedings, Mrs. Pizante defaulted in her discovery responses. The court deemed her default to be admissions. ...
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Eugene Davis Washington was convicted of bribing one of the jurors in his earlier trial on drug charges. Washington challenges his sentence on the ground that the district court erred in applying U.S.S.G. § 2J1.2(c)(l)’s cross-reference to U.S.S.G. § 2X3.1 (“Accessory After the Fact”). We agree with Washington and remand for re-sentencing. 1 I. In April 1988, Eugene Davis Washington was ind...
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Opinion I. Introduction In this case we hold that declarations on a special motion to strike a SLAPP suit (strategic lawsuit against public participation) (Code Civ. Proc., § 425.16) may not include averments on information and belief. We affirm a judgment dismissing a defamation action by A. Peter Evans against 10 individual defendants for failure to establish a probability he would...
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Opinion We dispose of two related appeals in this opinion. In appeal No. A066477, River Bank America (River Bank) appeals from a summary judgment granted in favor of defendants Sanford N. Diller and Helen P. Diller (individually and as trustees of the DNS Trust) and Prometheus Development Company, Inc. (Prometheus Development). In the underlying action, River Bank sought to enforce guaran...
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Opinion Appellants Marcellus L. Joslyn, Roland M. Joslyn, Marcia Joslyn Sill, Leslie Poleri, Lysbeth Drenick Lam and David Drenick are beneficiaries of the will of their grandmother, Alice Joslyn. They appeal from judgment determining that respondent Helen Melayne Davis is also a beneficiary under the will by virtue of the fact that she is the adopted daughter of Alice N. Joslyn’s son, Ma...
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Opinion Appellant, Timothy Jerome Mack, shot at two uniformed sheriff’s deputies. He was convicted by a jury of two counts of attempted murder with the personal use of a firearm (Pen. Code, §§ 664/187, subd. (a), 12022.5, subd. (a)) 1 , two counts of assault with a firearm upon a peace officer, with the personal use of a firearm (§§ 245, subd. (d)(1), 12022.5, subd. (a)), and one count of pos...
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Opinion Defendant Carla Jean Glade appeals from the entry of summary judgment in favor of plaintiff Martin Glade as trustee of the Martin and Sally Glade Revocable Family Trust, along with the denial of her motion for reconsideration of that judgment. For the reasons set forth below, we hold that the summary judgment should have been denied by the trial court upon reconsideration. Fa...
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Eyler was convicted by a jury of possession of unregistered machine guns and of *1388 being a felon in possession of a firearm. He fully admitted his guilt on those charges. He appeals only from his sentence of 66 months imprisonment and from the conditioning of his supervised release upon repayment of the costs of his defense, in particular the attorneys fees paid to his court-app...
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BACKGROUND In 1962, the Bureau of Land Management (“BLM”) granted the State of Alaska (“Alaska”) a right-of-way, pursuant to 23 U.S.C. § 317, for the construction of the George Parks Highway. The right-of-way grant was amended in 1969 to include a slightly different section of land. In June 1971, Evelyn Foster applied for a Native allotment of land pursuant to the Allotment Act, 43 U.S.C. §§ 270-1...
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Opinion by Judge WIGGINS; Dissent by Judge FERNANDEZ. Marian Broekamp, the administrator and sole beneficiary of the estate of her father, Stanley B. McGill, brought an action for a refund of his April 1984 income tax overpayment. The district court granted summary judgment in favor of the United States, holding that the suit was precluded by the statute of limitations. We reverse and remand for ...
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We consider here the statutory duty of an officer of the United States to enforce the will of Congress when a Medicare provider is convicted of program fraud. The Secretary of Health and Human Services (the “Secretary”) appeals the district court’s grant of a permanent injunction to Dr. Bruce Erickson and his ophthalmological clinic, the Great Falls Eye Surgery Center (collectively, “plaintiffs...
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A nationwide class of Medicare beneficiaries who received or will receive lump-sum insurance settlement awards from third parties in connection with Medicare-covered injuries (beneficiaries) appeal the district court’s grant of summary judgment in favor of the Secretary of Health and Human Services (HHS). The beneficiaries sued HHS, claiming that under Title XVIII of the Social Security Act, 42 U....
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I. Jones Intercable of San Diego, Inc., brought this action in district court against the City of Chula Vista. Jones alleged that the City had denied Jones’ constitutional and statutory rights when it refused to permit Jones to operate a cable television system in areas newly annexed by the City. The district court granted summary judgment to the City, and Jones appeals. We affirm the district cou...
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Opimon by Judge WIGGINS; Dissent by Judge FERNANDEZ. OVERVIEW Paul Sanders pled guilty to a 1993 bank robbery and to using a firearm during a crime of violence, in violation of 18 U.S.C. § 2113(a) and (d); and 18 U.S.C. § 924(c)(1). He was sentenced to 50 months imprisonment for the bank robbery and 60 months for the use of the firearm. He was also sentenced to a five-year term of supervised relea...
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11 Cal. 4th 294 (1995) 902 P.2d 272 45 Cal. Rptr. 2d 254 GLENDA KRAFT DOAN, a Judge of the Municipal Court, Petitioner, v. COMMISSION ON JUDICIAL PERFORMANCE, Respondent. Docket No. S043789. Supreme Court of California. October 5, 1995. *304 COUNSEL Kenneth B. Brock for Petitioner. Daniel E. Lungren, Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, Behre...
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11 Cal. 4th 342 (1995) 902 P.2d 297 45 Cal. Rptr. 2d 279 CALIFORNIA FEDERAL SAVINGS AND LOAN ASSOCIATION et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent. Docket No. S043694. Supreme Court of California. October 5, 1995. *344 COUNSEL Rogers & Wells, Dickson, Carlson & Campillo, Aaron M. Peck, Donald R. Brown and Jennifer L. Sokol for Plaintiffs and Appel...
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*1536 Opinion This appeal raises the question of whether a standard choice-of-law provision (which states that a contract shall be governed by the “laws” of a particular jurisdiction) incorporates the statutes of limitations of the chosen state. We hold that it does and further conclude that the choice-of-law provision in this case requires the application of a foreign statute of...
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Opinion I Petitioner seeks an extraordinary writ, pursuant to rule 39.IB of the California Rules of Court, to vacate the order of the respondent court directing that a selection and implementation hearing be held pursuant to Welfare and Institutions Code section 366.26 to consider a permanent plan for petitioner’s minor child. 1 The petition for writ is substantively mea...
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Opinion This case illustrates the wisdom of the commonly-used phrase, “Timing is everything in life.” In this instance, appellant Bartholemew Cargill was arrested in the possession of cocaine base about 10:15 p.m. on March 7, 1994. That rather uneventful statistical fact becomes more important in light of the action at 2:45 p.m. on the same day in Sacramento when the Governor signed and f...
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Opinion When a defendant enters a conditional plea of guilty, what must a trial court do to comply with Penal Code section 1192.5? Is counsels’ stipulation to a factual basis for the plea sufficient? And if not, is the error harmless? These are the issues before us in this case. Appellant Mickey Mickens appeals his conviction, contending that he should have been allowed to withdraw h...
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*1528 Opinion The only issue on appeal is whether a personal firearm use enhancement (Pen. Code, § 12022.5) applies to a conviction of assault with a semiautomatic firearm (Pen. Code, § 245, subd. (b).) 1 The answer is yes for the reasons stated below, so we will affirm the judgment. In the early morning hours of August 1, 1994, defendant Matthew Julius Joachim confronted the victim Scott...
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OPINION The debtor sought a temporary restraining order to enjoin state contempt of court hearings involving his failure to pay a spousal support judgment. The bankruptcy court denied the application, having granted his former spouse relief from stay eleven months earlier to proceed with state remedies to enforce the judgment. The debtor alleges abuse of discretion on the part of the court in...
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We must determine whether ERISA § 205(c)(6), 29 U.S.C. § 1055(e)(6), absolves a pension plan of all liability to a surviving widow after her deceased husband waived her right to benefits without obtaining her consent. *303I From 1961 to 1976 (and briefly in 1986), James Hearn’s employer made contributions on his behalf to the Western Conference of Teamsters Pension Plan. In 1991, Mr. Hearn applied...
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Craig Esselstrom appeals the district court’s order affirming the decision of the Secretary of Health & Human Services denying his application for disability insurance benefits under Title II of the Social Security Act. Esselstrom claims that he is disabled by schizophrenia. We reverse. BACKGROUND FACTS Esselstrom, who was born in 1950, worked in a timber mill from 1974 to 1979, at which time he q...
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Opinion In this case, we hold that a trial court is not authorized to allow a child support hardship deduction to a noncustodial parent based on that party’s voluntary support of nonadopted children of his spouse in a subsequent marriage. Factual and Procedural Summary This case is presented to us on an agreed statement, pursuant to California Rules of Court, rule 6. Through this method, co...
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Opinion This appeal involves issues of coverage for members of a joint powers insurance authority. The matter arises from a declaratory relief and breach of contract action seeking a determination of a joint powers authority’s duty to defend and indemnify a member city against a lawsuit for damages caused by the enactment of an anti-noise ordinance. Defendant and appellant Southern C...
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Opinion Insurance Code section 2071 requires that all fire insurance policies include a provision requiring disputes as to the amount of a loss to *1650 be arbitrated by a panel composed of “disinterested” appraisers selected by the insurer and the insured. State Farm General Insurance Company instead placed in its policy a provision describing the party-designated appraisers...
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Opinion This case concerns the California Department of Health Services’ (DHS) approval of an environmental impact report (EIR) and license for the construction and operation of a low-level radioactive waste (LLRW) disposal facility at Ward Valley, San Bernardino County, in the Mojave Desert. Petitioners, the Fort Mojave Indian Tribe (Tribe) and three nonprofit corporations, 1 ...
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Opinion Raising a variety of sentencing errors, a criminal defendant appeals from the judgment entered after he pleaded guilty to receiving stolen property. Finding merit in some of his contentions, we reverse part of the judgment. Factual and Procedural Background A felony complaint charges the defendant with violating Penal Code section 496 1 by receiving and holdin...
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ORDER A hearing was held on November 30, 1994 on defendant and cross-complainant’s motion for reconsideration and partial summary judgment. Kathleen E. Hegen appeared for plaintiff and cross-defendant American Economy Insurance Company (“American States”) and Kenneth M. Seeger appeared for defendant and cross-complainant Re-boans, Inc. (“Reboans”). For the reasons stated below, defendant ...
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OPINION Debtor appeals the bankruptcy court’s dismissal of his complaint for failure to state a claim upon which relief may be granted. Debtor alleged that the City of Santee had willfully violated the automatic stay by demurring and obtaining dismissal of his cross-complaint in a state court action. We Affirm. STATEMENT OF FACTS Richard W. White (“Debtor”) filed a voluntary Cha...
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OPINION I. FACTS In June, 1993, Gary Richardson, president of Southern California Law and Accounting Services (“SCLAS”), called Jorge and Lupe Sandoval on the telephone. Richardson said that he had discovered that the Sandovals were being sued by a creditor, and suggested that the Sandovals meet with him to discuss their options. Mr. Sandoval met with Richardson later that day and pa...
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C. A. 4th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Briefs of petitioners are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Thursday, November 16, 1995. Briefs of respondents are to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, December 15, 1995. Reply briefs, if any, a...
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ORDER AWARDING PLAINTIFF HAN-NON DECLARATORY AND INJUNC-TIVE RELIEF AND ATTORNEY’S FEES I. Introduction and Background Plaintiff T. Patrick Hannon, an attorney representing himself with associated co-coun *1278 sel, was previously granted partial summary judgment on his claim that, while applying to become an administrative law judge (“ALJ”) with the Social Secur...
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*446 MEMORANDUM AND ORDER Plaintiffs seek to quiet title to a roadway which provides access to their property in Yuba County, California. They also seek related damages. The parties are before the court on defendants’ several motions for summary judgment, the United States’ motion to dismiss for lack of subject matter jurisdiction based on the statute of limitations, and plaintiffs cross-mo...
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ORDER On August 2, 1995, the Court heard arguments on Hessinger & Associates’ appeals from three related orders of the United States Bankruptcy Court. Joseph Johnson of Hessinger & Associates appeared on behalf of appellant. Peter H. Carroll III of the Office of the United States Trustee appeared on behalf of appellee. Having considered the arguments of counsel, the papers submitted, the ...
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Opinion by Judge BRUNETTI; Concurrence by Judge REINHARDT. I. INTRODUCTION Appellant Fred Meyer, Inc. (“Fred Meyer”) brought a 42 U.S.C. § 1983 claim against appellee defendants. Fred Meyer is a Dela*1413ware corporation which operates approximately forty freestanding, large retail stores in Oregon. The defendants are organizers and proponents of two initiative petitions. The district court dismis...
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In a previous appeal for these cases, we held that certain provisions of the California Almond Marketing Order (Order), 7 C.F.R. § 981, violated the free speech and free association rights of several almond handlers. Cal-Almond, Inc. v. Department of Agriculture, 14 F.3d 429 (9th Cir.1993) (Cal-Almond I). We remanded the case to the district court to conduct the fact-intensive inquiry necessary to...
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Albert J. Kindt, an owner of rental property, appeals the district court’s summary judgment in favor of the Santa Monica Rent Control Board and its past and current members in his action under 42 U.S.C. §§ 1983 and 1985. He claims that the defendants conspired to violate his First Amendment right to free speech by ejecting him from public board meetings and by discriminating between speakers who s...
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67 F.3d 1394 33 Fed.R.Serv.3d 249, Bankr. L. Rep. P 76,673,95 Cal. Daily Op. Serv. 7974,95 Daily Journal D.A.R. 13,674 In re Fred LOWENSCHUSS, Debtor.RESORTS INTERNATIONAL, INC., Appellee,v.Fred LOWENSCHUSS, Appellant. No. 94-16287. United States Court of Appeals,Ninth Circuit. Argued and Submitted July 12, 1995.Decided Oct. 10, 1995. Alan R. Smith, Smith & Cope...
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67 F.3d 1404 41 ERC 1762, 26 Envtl. L. Rep. 20,076,95 Cal. Daily Op. Serv. 7962,95 Daily Journal D.A.R. 13,681 AMERICAN TUNABOAT ASSOCIATION; Bonjenval Holdings, Ltd., acorporation individually and on behalf of allpersons similarly situated, Plaintiffs-Appellants,v.Ronald H. BROWN, Secretary of Commerce, et al., Defendants-Appellees. No. 94-16275. United States Court of Appeals,Ni...
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Opinion by Chief Judge Wallace; Dissent by Circuit Judge KOZINSKI. The Taffis (Debtors) appeal from the district court’s judgment in favor of the Internal Revenue Service (IRS). The district court held that for purposes of valuing a secured tax lien on the residence the Debtors will retain, the residence should be valued at its “fair market” value and that “hypothetical costs of sale” should not b...
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902 F. Supp. 1103 (1995) CHIRON CORPORATION, Plaintiff, v. ABBOTT LABORATORIES, Defendant. No. C-93-4380 MHP. United States District Court, N.D. California. September 14, 1995. *1104 *1105 *1106 Harold J. McElhinny, Michael A. Jacobs, Morrison & Foerster, San Francisco, CA, for Chiron Corp. Curtis E.A. Karnow, Stephen C. Lewis, Landels Ripley & Diamond, San Francisco, CA, for Abbott Labor...
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AMENDED DECISION, FINDINGS, CONCLUSIONS, AND REASONING SUPPORTING SUMMARY JUDGMENT FOR DEFENDANTS AS TO THE FIRST CAUSE OF ACTION IN THE SECOND AMENDED COMPLAINT BASED ON THE STATUTE OF LIMITATIONS (To Make Minor Changes) INTRODUCTION The United States and the State of California (“Plaintiffs”) brought suit through a second amended complaint on August 16, 1991 for violations under th...
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Debtor Terry Alsberg, dba Alsberg Brothers Boatworks, (“Alsberg”) appeals the Bankruptcy Appellate Panel’s (“the BAP”) decision that Alsberg is entitled only to the $45,000 homestead exemption allowed under California law from proceeds from the sale of his residence. Alsberg argued to the BAP that he was additionally entitled to the value of post-bankruptcy-petition appreciation in the value of hi...
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MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT I. INTRODUCTION This is an action under the Federal Tort Claims Act (“FTCA”) against the United States and the Department of the Navy for negligence and emotional distress. Plaintiffs, husband and wife Don and Elizabeth Noel, allegedly sustai...
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Opinion At the time of the proceedings at issue in this appeal, Code of Civil Procedure section 664.6 provided; “If parties to pending litigation stipulate, in writing or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement.” (Stats. 1981, ch. 904, § 2, p. 3437.) (All subsequent statutory referen...
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The Court is advised that the case has been settled. Accordingly, the appeal is dismissed as moot and the decision filed May 2, 1995, appearing at 53 F.3d 285, is vacated. ...
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MICHAEL DALY HAWKINS, Circuit Judge: On June 25, 1991, a federal grand jury returned an indictment charging the defendants herein, along with nine other individuals (the “Regas defendants”), with numerous counts of drug trafficking and related criminal activity. The grand jury subsequently returned four superseding indictments. All of the indictments were sealed by order of the district court. The...
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Terry L. Henderson appeals his convictions for bank robbery. He contends the district court abused its discretion under Federal Rules of Evidence 701 and 403 by allowing a police officer to testify that Henderson was the person shown robbing two banks in surveillance photographs taken during the robberies. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. FACTS AND PROCEDURAL BA...
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This case provides an example of how arbitrary and unreasonable interpretations of our disability benefits laws deprive individuals of *320 much needed financial aid and frustrate the underlying statutory purposes. BACKGROUND The facts are not in dispute. David Gamble injured both lower legs in a childhood farming accident. As the result of increasing deformity and pain d...
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Plaintiffs-Appellants, Sue Kruse and Lance Caspary, filed a 42 U.S.C. § 1983 action in state court against the State of Hawaii and employees of Hawaii’s Department of Human Services (“DHS”) for allegedly violating their various rights under the U.S. Constitution and state law. The State removed the case to federal court. The district court granted the State’s motion for judgment on the pleadings o...
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OPINION Richard Edward Stearns pled guilty to two counts of bank robbery. 18 U.S.C. § 2113(a). He was sentenced and did not appeal, but about two years later he filed a petition which alleged that his attorney had failed to file a notice of appeal, as requested. 28 U.S.C. § 2255. The district court denied the petition, and Stearns appeals. We reverse and remand for further proceedings. BACKGR...
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Opinion by Judge HALL; Dissent by Judge WIGGINS. ORDER The order filed August 1, 1995, is hereby withdrawn and the opinion below filed in its stead. OPINION Appellants Livingston Union School District (the “school district”) appeal the district court’s preliminary injunction ordering them to accommodate three schoolchildren’s religious practices until this dispute under the Religious Freedoms Rest...
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68 F.3d 1141 64 USLW 2235, 95 Cal. Daily Op. Serv. 8010,95 Daily Journal D.A.R. 13,793 Cathy FREESTONE, individually, on behalf of their minorchildren and on behalf of all others similarly situated;Susan Harrington, individually, on behalf of their minorchildren and on behalf of all others similarly situated;Sonya Madrid, individually, on behalf of their minorchildren and on behalf of all ...
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11 Cal.4th 376 (1995) 902 P.2d 740 45 Cal. Rptr.2d 436 JOHN DELLA PENNA, Plaintiff and Appellant, v. TOYOTA MOTOR SALES, U.S.A., INC., Defendant and Respondent. Docket No. S044053. Supreme Court of California. October 12, 1995. *377 COUNSEL Korda, Johnson & Wall, Michael J. Korda and J. Joseph Wall, Jr., for Plaintiff and Appellant. *378 William A. Plourde, Jr., David D. Laufer, Gibson, Dunn ...
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11 Cal. 4th 354 (1995) 902 P.2d 729 45 Cal. Rptr. 2d 425 THE PEOPLE, Plaintiff and Respondent, v. RONNY GLASER, Defendant and Appellant. Docket No. S042656. Supreme Court of California. October 12, 1995. *359 COUNSEL Peter Dodd, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. A...
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Opinion Plaintiffs and appellants Alameda County Land Use Association et al. 1 appeal the dismissal of their action for injunctive and declaratory relief after the demurrer of defendants and respondents City of Hayward et al. 2 was sustained without leave to amend. They contend the trial court erred in ruling their action was not ripe because they had not been injure...
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Opinion MASTERSON, J. Defendant Daniel Dent entered pleas of no contest to two “wobbler” offenses which the trial court found to be misdemeanors under Penal Code section 17, subdivision (b)(1). 1 The People appeal from the ensuing judgment, contending that the “three strikes law” 2 abrogated the trial court’s discretion to declare wobbler offenses to be misdemean...
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Opinion Defendant Michael Allen Bradford was charged by information with the following offenses: Count Violation I Cultivation of marijuana (Health & Saf. Code, § 11358) II Possession of marijuana for sale (Health & Saf. Code, § 11359) HI Possession of a deadly weapon (Pen. Code, § 12020, subd. (a)) *1736 IV Vehicle theft (Veh. Code, § 10851, subd. (a)) ...
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Opinion Apprehended in a car containing over 32 kilograms of cocaine, Donato Pena Meza and Rosario Molina Labrada were convicted of possessing cocaine for sale (Health & Saf. Code, § 11351, subd. (a); all statutory references are to the Health and Safety Code unless otherwise specified) and transporting cocaine (§ 11352, subd. (a)). The jury also found true an allegation the cocaine weigh...
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*1713 Opinion Plaintiff was injured as a result of the absence of a “point of operation guard” on the pasta machine she was operating in the course of her employment for defendant. She brought a civil action for damages against defendant. Defendant moved for summary judgment on the ground that plaintiff was limited to workers’ compensation. Defendant asserted that Labor Code section 4558, the...
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This case arises out of efforts to facilitate travel exchanges between the United States and republics of the former Soviet Union. International Ambassador Programs (“Ambassador”) appeals the district court’s ruling vacating a judgment in its favor. The court determined that Ambassador’s judgment arose out of the same cause of action as a subsequent judgment in favor of Archexpo Commerce and Indus...
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Michael Savage appeals his judgment of conviction and sentence following a jury trial. Savage defrauded people of over $6 million by claiming that if they sent him $5000, he could obtain foreign loans and eventually pay each investor $10 million. Savage was convicted of mail and wire fraud, international money laundering, transferring criminally derived proceeds, and several other counts not at...
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Opinion Petitioners Ernest P. Mansour and the law firm of Mansour, Gavin, Gerlack & Manos Co. L.P.A. (MGGM), Sue Anna Cellini and Emil Askew separately moved to quash service of summons for lack of personal jurisdiction. The superior court denied each motion and the parties have petitioned this court to overturn the superior court’s rulings. Since each petition arises from the same case a...
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Opinion This is a dispute between aunts over the custody of an orphaned child. After the juvenile court declared the minor a dependent, it awarded temporary custody of the child to the paternal aunt and her husband. Despite mother’s nomination of the maternal aunt as the minor’s guardian, maternal aunt was only allowed “relative standing” in the juvenile court proceedings. The maternal aunt appea...
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C. A. 9th Cir. Certiorari granted....
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67 F.3d 1445 76 A.F.T.R.2d 95-6825, 95-2 USTC P 50,581,95 Cal. Daily Op. Serv. 8089,95 Daily Journal D.A.R. 13,903 INTEL CORPORATION AND CONSOLIDATED SUBSIDIARIES,Petitioner-Appellee-Cross-Appellant,v.COMMISSIONER, INTERNAL REVENUE SERVICE,Respondent-Appellant-Cross-Appellee. Nos. 94-70105, 94-70158. United States Court of Appeals,Ninth Circuit. Argued and Submitted Aug. 15, 1...
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68 F.3d 342 130 Lab.Cas. P 58,001, 2 Wage & Hour Cas.2d(BNA) 1606,95 Cal. Daily Op. Serv. 8088,95 Daily Journal D.A.R. 13,915,Pens. Plan Guide P 23916P ASSOCIATED BUILDERS AND CONTRACTORS, INC., Golden GateChapter; Golden Gate Chapter Associated Builders andContractors Training Trust Fund; Golden Gate Chapter ofAssociated Builders and Contractors Bat Training Program,Plaintiffs-Appe...
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Opinion Appellants Heriberto Fuentes, Jr., Robert R. Villa, and Ronald R. Jones, police officers employed by the City of Alameda (appellants or the officers), brought an action for malicious institution of a civil proceeding (commonly referred to as “malicious prosecution”) against respondents Virlee Berry (Berry), her husband Edward Berry, and her sister *1803 Betty Williams...
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Opinion Rodney D. appeals from orders issued at the dispositional hearing of a dependency proceeding denying him placement of his six children. In this opinion, we conclude the court failed to apply Welfare and Institutions Code1 section 361.2, subdivisions (a) and (b), the proper statutory provision to determine whether the children should have been placed with Rodney. We further decline to impl...
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67 F.3d 1462 64 USLW 2304, 19 Employee Benefits Cas. 2033,95 Cal. Daily Op. Serv. 8124,95 Daily Journal D.A.R. 13,943,Pens. Plan Guide P 23913S Robert L. RICHARDSON; William Alexander; Larry L. Aman;Kenneth R. Anderson; Jimmie L. Arrington, et al.,Plaintiffs-Appellants,v.The PENSION PLAN OF BETHLEHEM STEEL CORPORATION ANDSUBSIDIARY COMPANIES; The Pension Trust of Bethlehem SteelCorpora...
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68 F.3d 343 131 Lab.Cas. P 58,058, 2 Wage & Hour Cas.2d(BNA) 1603,95 Cal. Daily Op. Serv. 8112,95 Daily Journal D.A.R. 13,948 ABC NATIONAL LINE ERECTION APPRENTICESHIP TRAINING TRUST,Plaintiff-Appellant,v.Lloyd AUBRY, JR., in his official capacity as the Directorof the Department of Industrial Relations for the State ofCalifornia and Victoria Bradshaw in her official capacity asthe La...
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Spierer was paid an attorney’s fee in advance of the work to be done, and disgorged it when a conflict of interest prevented him from doing the work. His counterclaim was an attempt to have his malpractice insurer pay him the attorney’s fee for the work he did not do, with interest. He lacked entitlement to the money. Also, his claim was barred by the statute of limitations, because he did not sue...
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Defendants/appellants the California Public Utilities Commission and various individual employees (collectively “the PUC”) appeal from judgment after a jury verdict awarding (1) plaintiff/appellee Maurice Crommie $151,-920 plus 10% interest and costs, and (2) plaintiff/appellee Arthur Mangold $164,052 plus 10% interest and costs against the PUC for violating the Age Discrimination in Employment Ac...
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*10 Opinion In this personal injury action, plaintiff Patrick Connelly (Connelly) sued defendant Mammoth Mountain Ski Area (Mammoth) after colliding with a ski lift tower. In granting summary judgment for Mammoth, the trial court rejected Connelly’s claim that Mammoth improperly padded the tower; instead, the court found the collision with the tower to be an obvious, avoidable an...
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Opinion Joseph Caprai, an employee of appellant Southern California Permanente Medical Group (employer), was seated as a juror in the case People v. Kwee (Super. Ct. San Bernardino County, 1994, No. RCR-21654). After Caprai was seated as a juror, he discovered that the employer’s jury duty policy was to pay him only for those days he actually served as a juror. Juror Caprai complained to the co...
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Opinion I. Introduction This is an appeal from an order appointing a successor receiver to bring property owned by appellants into compliance with the San Francisco Municipal Code. Appellants appealed the original order appointing a receiver and this court upheld the same in an earlier decision. Appellants now renew their challenge upon the original receiver’s resignation and trial c...
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Opinion Effective in 1994, the Judicial Council promulgated rules of court allowing electronic recording of superior court proceedings, despite *18 a statutory scheme authorizing official shorthand reporting of these proceedings and the Legislature’s rejection of legislation authorizing electronic recording. (See Cal. Rules of Court, rules 33(e), 891, 892, 980.3.) As rules of...
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The National Park Service (NPS) and Seven Resorts, Inc. (SRI) appeal from the district court’s grant of summary judgment in favor of the Lake Mohave Boat Owners Association (LMBOA). The district court held that NPS violated the Freedom of Information Act (FOIA), 5 U.S.C. § 552, because NPS did not publish in the Federal Register its rate-setting guidelines for marinas that operate in national park...
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This case involves an attempt by an abortion clinic to identify and to use a legal remedy to prevent anti-abortion activists from disrupting the performance of the clinic’s services to women. The plaintiff, Portland Feminist Women’s Health Center (“PFWHC”), sued right-to-life activists under, inter alia, 42 U.S.C. §§ 1985(3) and 1986 on behalf of a class of women who sought to exercise their right...
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39 Cal. App. 4th 84 (1995) 45 Cal. Rptr. 2d 859 JOHN E. HUPP, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, COUNTY OF SANTA BARBARA et al., Respondents. Docket No. B089385. Court of Appeals of California, Second District, Division Six. October 18, 1995. *85 COUNSEL John E. Hupp, in pro. per., for Petitioner. Stephen Shane Stark, County Counsel, Martin G. McKenzie and David Allen, Deputy Cou...
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ORDER AND OPINION GRANTING DEFENDANTS’ MOTION FOR DISCOVERY RE SELECTIVE PROSECUTION Before the Court are the motions for discovery concerning alleged selective prosecution of defendants Alvin Debois Turner, William Earl Jones, Michael Joel Davis, and Frederick Banks. These motions were heard on September 27, 1995. In deciding the motions, the Court need only determine whether the to...
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Mark Koch appeals from the district court’s ruling on remand that his original notice of appeal was untimely. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse on the ground of Federal Rule of Appellate Procedure 4(e). I. Background Mark Koch was one of several Arizona state prisoners who sued prison officials under 42 U.S.C. § 1983 for alleged violations of the prisoners’ c...
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OPINION * Both Lottfie “Lou” Adray and Adry-Mart, Inc. operate consumer electronics stores under the name “Adray’s” in Southern California. Lou Adray sued for trademark infringement and unfair competition under state and federal law and filed this appeal from the final judgment. We reverse in part and remand. I. Facts Lou Adray has operated an “Adray’s” discount electron...
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Michael J.S. Torre appeals his conviction of three counts on first degree criminal sexual conduct in violation of 9 Guam Code Ann. § 25.15(a)(6), two counts of second degree criminal sexual conduct in violation of 9 Guam Code Ann. § 25.20(a)(6); and one count of second degree kidnapping in violation of 9 Guam Code Ann. § 22.20(a)(2). FACTS Torre was a security officer at the Naval Station i...
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OPINION Hector Fuentes-Montijo (Fuentes) and Ruben Campoy-Silva (Campoy) appeal their jury convictions on the ground that the district court abused its discretion in instructing the jury on the use of English translation transcripts of Spanish language tape recordings. We hold that the district court did not abuse its discretion. FACTS AND PROCEEDINGS On November 17, 1993, a superseding ind...
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ORDER Rule 8(c) of the Rules Governing Section 2255 Proceedings in the United States District Courts states that “[i]f an evidentiary hearing is required, the judge shall appoint counsel for [an indigent] movant....” Rule 8(c) of the Rules Governing Section 2255 Proceedings, 28 U.S.C. foil. § 2255 (emphasis added). All of the circuits that have discussed the issue agree that the rule makes th...
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Petitioner Domingo Guevara Caruncho, along with his wife and three sons as additional petitioners (Petitioner), requests review of the Board of Immigration Appeals’ (BIA) summary dismissal of his appeal from a final deportation order. Petitioner argues that his Notice of Appeal form EOIR-26 was sufficiently specific, and that the dismissal procedures used by the BIA did not comport with due proces...
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Opinion I. Introduction Plaintiff, Steven L. Re, appeals from a judgment on his complaint against his sister, defendant, Pamela Ann Re, 1 for partition of two parcels of real property which they had received by grant deed as joint tenants with their *94 mother, Jane Re Norman. 2 The sole contention on appeal is the trial court erred in determining the effect of a grant deed to Pamela wh...
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Opinion Plaintiffs own and reside on real property which lies south of the San Benito County Fairgrounds (hereafter the fairgrounds). Defendant *63is the governmental entity which owns and operates the fairgrounds. Defendant began utilizing the fairgrounds for non-fair-time motorcycle races in the mid-1980’s. Plaintiffs complained about these races, and they became increasingly annoyed by noise a...
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186 B.R. 695 (1995) In re Seong Koo LEE and Jyung Sig Lee, Debtors. CITIBANK (SOUTH DAKOTA) N.A., Appellant, v. Seong Koo LEE and Jyung Sig Lee, United States Trustee, Appellees. BAP No. CC-94-1655-JOMe. Bankruptcy No. LA-91-76529-SB. Adv. No. LA-91-06419-SB. United States Bankruptcy Appellate Panel of the Ninth Circuit. Argued and Submitted July 19, 1995. Decided August 17, 1995. *696 Darvy Mack...
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AMENDED OPINION Gary A. Plotkin (“Trustee”) is the Trustee for Pacific Land Sales, Inc. (“Debtor”), a Chapter 7 Debtor. The Trustee recovered a radio station from Dale J. Parsons, Jr. and Virginia Parsons (collectively, “the Parsons”), and Blue Wave Broadcasting, Inc. (“Blue Wave”), as an unauthorized postpetition transfer from the Debtor. Howard Green (“Receiver”) was appointed as a ...
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68 F.3d 1194 64 USLW 2279, 131 Lab.Cas. P 33,307,2 Wage & Hour Cas.2d (BNA) 1633,95 Cal. Daily Op. Serv. 8206,95 Daily Journal D.A.R. 14,133 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 357,AFL-CIO, Plaintiff-counter-defendant-Appellee,v.Ronnie J. BROCK; Charles Brush, Jr.; Dennis Chapman;Kenneth N. Harvey; James E. Herndon; Michael F. Jordan;Gilbert Medina; Joseph N. M...
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Prudential Insurance Company of America (“Prudential”) appeals the district court’s summary judgment for the L.A. Mart (“L.A. Mart”), in Prudential’s diversity action for declaratory relief establishing the parties’ duties to pay the costs of seismic upgrading undertaken by Prudential upon the “Mart Building,” a commercial structure owned by Prudential and leased to L.A. Mart. Prudential mainta...
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67 F.3d 1489 76 A.F.T.R.2d 95-6859, 95-2 USTC P 50,564,33 Fed.R.Serv.3d 915, 95 Cal. Daily Op. Serv. 8210,95 Daily Journal D.A.R. 14,145 William G. NORDVIK; Claire N. Nordvik, Petitioners-Appellants,v.COMMISSIONER INTERNAL REVENUE SERVICE, Respondent-Appellee. No. 93-70434. United States Court of Appeals,Ninth Circuit. Argued and Submitted Dec. 14, 1994.Decided Oct. 20, 1995....
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Opinion Petitioners, husband and wife, seek a writ of mandate directing the superior court to set aside an order overruling their demurrer to the first, second and third causes of action set forth in real party’s second amended complaint. Code of Civil Procedure, 1 section 340.1 extends the statute of limitations for a civil action based on childhood sexual abuse. We are asked to determine ...
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Opinion This case involves a suit brought by nine low-income renters against defendants the U.D. Registry, Inc. (UDR) and its president Harvey Saltz for alleged violations of the state and federal statutes that govern the activities of consumer credit reporting and investigative agencies. Both sides appeal from a judgment granting relief to plaintiffs Ruth Cisneros and Rudine Pettus on th...
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Opinion The issue in this case is whether a law firm must be disqualified as counsel in a lawsuit after employing the retired judge who had presided over the action and had received ex parte confidences from the opposing party in the course of settlement conferences. We conclude that screening procedures are not sufficient to preserve public trust in the justice system in these circumstan...
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*109 Opinion Introduction Kenneth McCoy was injured at work while operating a printing press. McCoy sued, inter alia, his employer, Zahniser Graphics, Inc. To avoid the exclusivity provisions of the workers’ compensation system, McCoy relied upon Labor Code section 4558. 1 That section permits an employee to file a personal injury action against the employer when the injury results from u...
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39 Cal. App. 4th 71 (1995) 46 Cal. Rptr. 2d 8 In re the Marriage of LESLIE and NORLENE STEPHENSON. LESLIE STEPHENSON, Respondent, v. NORLENE STEPHENSON, Appellant. Docket No. D018407. Court of Appeals of California, Fourth District, Division One. September 26, 1995. *74 COUNSEL Scott B. Tepper and Robert M. Garland for Appellant. Andrew J. Parrott for Respondent. OPINION WORK, Acting P.J. Followi...
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39 Cal. App. 4th 100 (1995) 45 Cal. Rptr. 2d 874 GARY LINCOLN et al., Plaintiffs and Respondents, v. MARK A. SCHURGIN et al., Defendants and Appellants. Docket No. B050676. Court of Appeals of California, Second District, Division Four. October 19, 1995. *101 COUNSEL Lurie & Zepeda, Bruce J. Lurie and Paul B. Beach for Defendants and Appellants. Howrey & Simon, James W. Mercer, Kathryn M....
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This appeal presents two principal issues. First, does the Veterans’ Judicial Review Act of 1988, 38 U.S.C. § 7251 et seq. (1991) (“the VJRA”), provide an exclusive remedial structure that precludes Appellant from asserting a Bivens cause of action in district court? Second, did the district court properly determine that it lacked subject matter jurisdiction under 38 U.S.C...
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ORDER The memorandum disposition filed June 13,1995, is redesignated as an authored opinion by Judge Hall. OPINION Monica Roberts, who is in her mid-thirties, suffers from morbid obesity, arthritis, and various mental and emotional impairments including depression. She has one child and lives on public assistance. She applied for SSI benefits on the basis of alleged disability in 1989 and her appl...
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Opinion I Introduction Petitioner and appellant, Citizens for Responsible Development in West Hollywood (Citizens), is composed of neighbors who oppose the April 4, 1994, approval of a 40-unit low-income housing project by the City of West Hollywood (City) and the City Council of the City of West Hollywood (City Council) to be located in their neighborhood at 976-988V2 Palm Aven...
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Opinion Meg Garstang has petitioned this court for an extraordinary writ of mandate directing the superior court to set aside its order denying her motion to compel further answers to deposition questions. We are asked to decide whether communications disclosed during mediation sessions before an ombudsperson employed by a private educational institution are privileged. We conclude they are p...
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39 Cal. App. 4th 538 (1995) 45 Cal. Rptr. 2d 888 JANE DOE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THE PEOPLE, Real Party in Interest. Docket No. B094986. Court of Appeals of California, Second District, Division One. October 23, 1995. *540 COUNSEL Michael P. Judge, Public Defender, Albert J. Menaster, Verah Bradford and Alex Ricciardulli, Deputy Public Defenders, for...
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*586 Opinion In this mandamus proceeding, Raymond Handling Concepts Corporation and the Raymond Corporation (petitioners) ask this court to prohibit dissemination of confidential discovery to counsel in other pending similar litigation. We decline to do so having concluded that the court did not abuse its discretion in the protective order it formulated to protect the discovery. Procedural ...
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Opinion Plaintiff Cynthia Haggard alleged that Kimberly Quality Care, Inc., and Kimberly Home Health Care, Inc. (collectively KQC) breached an implied contract to terminate her employment only for cause, and that KQC and certain employees discriminated against her on the basis of disability. A jury awarded plaintiff damages of $250,000 on her breach of contract claim, but no recovery on h...
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In this case, the Internal Revenue Service (“IRS”) levied upon funds due to a company without notifying the company that it had done so. The debt that the IRS was attempting; to collect was owed by the company’s former lawyers, not the company, as the IRS knew. In fact, the company owed no money to the IRS at all. When the company finally discovered what had happened to its funds and tried to f...
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Appellants, cable television operators Colony Communications, Inc. (“Colony”) and Palmer Communications, Inc. (“Palmer”), in-terlocutorily appeal the district court’s denial of their motion to dismiss on federal preemption grounds competitor Total TV’s diversity action. We granted permission to appeal pursuant to 28 U.S.C. § 1292(b), and we affirm. 1 I. Background Colony is a ...
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MEMORANDUM OPINION Cross-motions for summary judgment as to whether defendant Allstate Ins. Co. had a duty to defend plaintiffs Jon-Marc Dobrin and Jon-Marc Dobrin, A Professional Corporation came on for hearing before the Court, the Honorable William J. Rea, Judge, presiding, on April 24, 1995. After reviewing the papers submitted in support of and in opposition to the motions, the file ...
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Opinion by Judge REINHARDT; Dissent by Judge NOONAN. We consider here a narrow question of procedure involving notices in class action cases. We must decide whether a defendant who has succeeded in obtaining summary judgment may subsequently compel the named plaintiff to give the class the Rule 23(c)(2) notice that is ordinarily given shortly after class certification, or whether by obtaining jud...
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We are called upon to determine whether the complete failure to instruct a jury in a criminal ease with respect to a particular offense requires automatic reversal of a conviction on collateral review. At the outset, we emphasize that this case does not involve the failure to instruct on a single element of an offense, but the failure to instruct on any element of a particular offense. As did the ...
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Opinion James J. and Delores D. appeal a judgment under Welfare and Institutions Code1 section 300, subdivision (j), declaring their son, Joshua J., a dependent of the San Diego County Juvenile Court and removing him from their custody. James contends the trial court erred by (1) not allowing him to relitigate the basis of a prior dependency proceeding regarding Joshua’s half-sibling, and (2) admi...
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Opinion I. Introduction Appellant, Rhonda P., appeals from a juvenile court order terminating her parental rights to the minor, Anthony P., pursuant to Welfare and Institutions *637Code, section 366.26.1 Appellant contends the order must be reversed because the juvenile court failed to consider adequately the minor’s wishes about placement and adoption as well as neglected to provide for his ongo...
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ORDER On November 14, 1994, the Court heard oral argument on motions to dismiss filed in this action by several individual school district employees (collectively “Defendants”), the Santa Rosa City School District, and Drew Ibach (“Ibach”). In an order issued on November 23, 1994, the Court ruled on several of those motions. The Court also ordered the parties to submit supplemental br...
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The en banc court, having lifted the stay of execution in its order filed on September 13, 1995 and the sentence having been carried out, dismisses this appeal as moot. All pending motions are denied as moot and the mandate will issue forthwith. The dismissal of this appeal as moot does not affect the en banc court’s order lifting the stay of execution published in Jeffers v. Lewis, No. 95-99...
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Opinion Statement of the Case This appeal arises out of a disciplinary action taken against a deputy sheriff, Craig Calzada. After Calzada pled nolo contendere to the misdemeanor charge of receiving stolen property—a charge based upon his purchase of three items of electronic equipment from a friend of his brother-in-law—the Los Angeles County Sheriff’s Department fired Ca...
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Opinion Robert M. Webman, M.D., appeals from a judgment denying his petition for a peremptory writ of mandate to compel his reappointment to the medical staff of Little Company of Mary Hospital (LCMH). (Code Civ. Proc., § 1094.5.) He contends: “[I.] The denial of appellant Webman’s application for reappointment was neither reasonable nor necessary. [II.] Neither the facts as found by the ...
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OVERVIEW Jose Arturo Armenta was indicted for conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 846. Armenta entered a guilty plea conditioned on his right to appeal the trial court’s summary denial of his pretrial suppression motion. On appeal, a panel of this court remanded for an evidentiary...
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Opinion Introduction A jury convicted defendant Ernest Angel Mora and codefendant Alex Arredondo on four counts: (1) first degree murder with the special circumstances that the murder was committed in the course of burglary and robbery, (2) burglary, (3) robbery, and (4) attempted robbery. Defendant and Arredondo (not a party to this appeal) planned an armed robbery of a drug dealer in the de...
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OVERVIEW This case considers what record is properly before a federal district court considering a petition for habeas corpus under 28 U.S.C. § 2254. After the petitioner pursued his claims in a direct appeal to the highest state court, the record was expanded in state collateral proceedings, but petitioner procedur-ady defaulted on the expanded claims by failing to present them to the highest sta...
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*949 Opinion I. Introduction This appeal arises from a tax refund action brought by Joel Neecke (Neecke) against the City of Mill Valley (City) and other defendants. 1 Neecke, on behalf of himself and others similarly situated, challenged the City’s “municipal services tax,” which was levied on real property owners beginning in fiscal year 1985-1986 and continuing...
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Opinion This is an appeal from a judgment terminating the parental rights of appellant father, after a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26.1 Counsel appointed for appellant filed a brief which summarized the procedural and factual background of the case, advised that no substantive issues warranting reversal on appeal could be identified,2 ...
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Opinion Introduction In this case we hold the safeguards afforded parents by section 361 of the Welfare and Institutions Code apply just as much to supplemental petitions filed under section 387 of the same code as they do to initial petitions. We further hold that mere chronic messiness in housekeeping, absent unsanitary conditions or resulting illness or accident, is not the clear and convincin...
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39 Cal.App.4th 691 (1995) 46 Cal. Rptr.2d 119 TERRY LANDRY, a Minor, etc., et al., Plaintiffs and Appellants, v. BERRYESSA UNION SCHOOL DISTRICT, Defendant and Respondent. Docket No. H013458. Court of Appeals of California, Sixth District. October 25, 1995. *694 COUNSEL Jessie Serna for Plaintiffs and Appellants. Rankin, Luckhardt, Vandeweghe, Landsness & Lahde and Michael C. Severian for Defenda...
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39 Cal. App. 4th 643 (1995) 46 Cal. Rptr. 2d 112 THE PEOPLE, Plaintiff and Respondent, v. JUAN ABUNDIO MEDINA, Defendant and Appellant. Docket No. F022731. Court of Appeals of California, Fifth District. October 24, 1995. *645 COUNSEL Kathleen Ann Dovidio, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant...
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39 Cal.App.4th 666 (1995) 46 Cal. Rptr.2d 123 ALYSON C. CONIGLIO, Plaintiff and Respondent, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Appellant. Docket No. H013273. Court of Appeals of California, Sixth District. October 25, 1995. *670 COUNSEL Daniel E. Lungren, Attorney General, Robert R. Buell and Gregory J. Rolen, Deputy Attorneys General, for Defendant and Appellant. Hudson, Martin, Ferr...
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*688 Opinion Herein, we hold defendant cannot object for the first time on appeal to the imposition of a restitution fine on the ground of an inability to pay. Defendant appeals from separate judgments following (1) his plea of guilty to second degree murder and his admission of the use of a deadly weapon and the intentional infliction of great bodily injury, and (2) the revocation of his pro...
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Opinion American States Insurance Company (American States) appeals from a judgment ordering it to pay $487,500 on an action for equitable contribution. The trial court ruled that American States and another excess carrier, Truck Insurance Exchange (Truck), were co-insurers and share equally in the excess cost of settling a personal injury action brought against their insureds. We affirm....
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Opinion This appeal involves a dispute between lawyers for the litigants below. Plaintiffs’ counsel appeal, on their own behalf, from the *1034 court’s imposition of sanctions for the filing of a frivolous lawsuit. They allege the court’s order was unconstitutional, exceeded its jurisdiction, was defective in form, and was inconsistent with the court’s denial of sanctions to ...
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69 F.3d 309 95 Cal. Daily Op. Serv. 8329, 95 Daily JournalD.A.R. 14,391UNITED STATES of America, Plaintiff-Appellee,v.Jario A. MEJIA, Defendant-Appellant. No. 94-50406. United States Court of Appeals,Ninth Circuit. Argued and Submitted April 4, 1995.Decided Oct. 26, 1995. Callie A. Glanton, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant....
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A third party candidate and a voter sued to obtain a judicial prohibition against contributions from citizens of other states to a congressional campaign. The complaint was properly dismissed for lack of standing. The claim is frivolous as well. I. FACTS Plaintiff Whitmore ran for Congress on a third party ticket, the Green Party, in 1994. She submitted evidence showing that she appeared at nume...
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OPINION Defendant Dia appeals his resentencing on a conviction for aggravated sexual abuse, claiming the district court erred in not reducing his offense level based on “acceptance of responsibility.” We review under the clearly erroneous standard, and affirm. I. Dia denied all wrongdoing when first approached about the allegations against him. He claimed to have never had sex with complain...
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Douglas and Sue Clements, former employees of the Airport Authority of Washoe County, filed this federal action under § 1983 alleging that their terminations violated the Due Process guarantee of the 14th Amendment and were in retaliation for First Amendment protected whistle-blowing activity. They also asserted ancillary state law claims. The district court granted summary judgment to the defenda...
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Opinion John Lucas appeals from the orders of the trial court sustaining the demurrers to his complaints against respondents, the Santa Maria Public Airport District and the members of its board of directors (District), and denying his motion for reconsideration thereof. The gist of Lucas’s complaints is that the District improperly entered into an employment contract with its general manager, ...
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Opinion Eighteen tenants brought this action against their landlord, Albert Sassoon, for breach of the warranty of habitability, nuisance and other torts. A jury awarded the tenants $187,500 in general and special damages and $350,000 in punitive damages. Sassoon appeals. We affirm. *1047 Facts and Proceedings Below From December 1989 to January 1992 Albert Sassoon owned rental property c...
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Opinion The question presented in this case is whether jurors are employees within the meaning of the Workers’ Compensation Act (Lab. Code, § 3600 et seq., hereinafter the Act), or are otherwise subject to the provisions of the Act, such that the Act provides the exclusive remedy to a juror injured while on jury service. Facts Plaintiff and appellant Rosemary Waggener alleges th...
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Opinion In this case we consider whether corporate depositors may pursue causes of action against their bank for the negligent payment of forged checks when they failed to discover and report the forgeries to the bank in a timely manner. We hold that the statutory provisions of the California Uniform Commercial Code 1 preclude the depositors from asserting the forged checks aga...
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Former Chapter 11 debtors, Mr. & Mrs. Howard Atkins (“debtors”), appeal the decision of the Bankruptcy Appellate Panel (“BAP”) affirming the bankruptcy court’s nunc pro tune order that both retroactively authorized services an accounting firm rendered to the estate on an emergency basis and awarded the firm fees for those services. Because we agree that exceptional circumstances exis...
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Triton Energy Corporation, Page Airport Services, Inc., and Continental Loss Adjusting, Inc. (Triton) appeal the district court’s final judgment which granted Square D Company’s motion for summary judgment and denied Triton’s motion to alter or amend. We affirm the district court’s grant of summary judgment.1 I. FACTS & PROCEEDINGS BELOW The circumstances of this ease are quite unusual. It begin...
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OPINION Ms. Florence Beardslee and Natural Beverage Distributors (collectively “Beardslee”) appeal the district court’s Orders granting partial summary judgment to plaintiff An-heuser-Busch, Inc. (“Anheuser”), ordering a new trial on her counterclaim against Anheu-ser, and ultimately dismissing her counterclaim. We affirm all three rulings. I. For many years, Beardslee solely-ow...
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39 Cal.App.4th 1095 (1995) 46 Cal. Rptr.2d 332 SCIENCE APPLICATIONS INTERNATIONAL CORPORATION, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DEPARTMENT OF GENERAL SERVICES, Real Party in Interest. Docket No. D024039. Court of Appeals of California, Fourth District, Division One. October 27, 1995. *1098 COUNSEL Gray, Cary, Ware & Freidenrich, Merrill F. Storms, Jr., Marcel...
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C. A. 9th Cir. Certiorari denied....
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MEMORANDUM OPINION ON EXTRADITED DEFENDANT’S MOTION TO DISMISS THE INDICTMENT Introduction Defendant Vincent Marconi has been indicted on eighteen counts of mail fraud in violation of 18 U.S.C. § 1341. The Defendant was arrested in the United Kingdom and extradited pursuant to the Extradition Treaty between the United States and the United Kingdom. He now moves to dismiss the indictment on ...
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Circuit Justice. The Federal Communications Commission (FCC) has applied to me in my capacity as Circuit Justice for the Sixth Circuit to vacate a stay entered by the Court of Appeals on October 18,1995. The stay prevented the FCC from taking any action in furtherance of a nationwide auction of a portion of the electromagnetic spectrum. Apparently, the Court of Appeals feared that completion of th...
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69 F.3d 355 27 UCC Rep.Serv.2d 1386, 95 Cal. Daily Op.Serv. 8413,95 Daily Journal D.A.R. 14,523 DEL E. WEBB McQUEEN DEVELOPMENT CORPORATION, an ArizonaCorporation, Plaintiff-Appellant,v.RESOLUTION TRUST CORPORATION, a United States governmentcorporation as Receiver for Sun State Savings,FSA, as successor to Sun State Savingsand Loan Association,Defendant-Appellee. No. 94-15266. Uni...
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Gregory Ivory (“Debtor”) became delinquent in the payment of property taxes on real property located in Multnomah County, Oregon. In response, the County filed a foreclosure action, obtaining judgment on September 20, 1988. Under Oregon law, Debtor then had a two year period in which to pay his taxes and redeem his property. ORS § 312.120. While this redemption period would have normally expire...
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Opinion Plaintiff and appellant David E. Idding (appellant) appeals from a judgment entered in favor of defendants and respondents North Bay Construction Company, Inc., R & R Maher Construction Company, Inc., McBail Company and Wes Bailey (respondents) which was entered following their successful motions for summary judgment. The sole issue presented is whether appellant’s second amended ...
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Opinion This case presents the question of whether on appeal of a proceeding conducted under Family Code section 7822 which terminates parental rights the Court of Appeal must conduct an independent review of the record when counsel for the appealing parent can find no arguable issue to raise before us. (People v. Wende (1979) 25 Cal.3d 436 [158 Cal.Rptr. 839, 600 P....
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Opinion Westinghouse Electric Corp. attempts to state causes of action sounding in tort and breach of contract against attorneys who allegedly conspired to disclose documents covered by a secrecy agreement in a previous lawsuit. The trial court held the attempt failed. We agree. Facts and Proceedings Below Westinghouse was the defendant in a suit brought by the Southern Californ...
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*1119 Opinion The sole question presented by this writ petition is whether running of the one-year period allowed by Government Code section 12960 for the filing of an administrative complaint under the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) was tolled during the plaintiff’s minority by application of Code of Civil Procedure section 352, or...
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Opinion In 1990 the California voters passed the Proposition 132 (Cal. Const, art. X B) 1 initiative. Among other things, Proposition 132 banned the use of certain types of fishing gear along large portions of the California coastline. Appellants are fishermen adversely affected by this ban and seek to void Proposition 132. I Factual and Procedural History Ap...
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39 Cal. App. 4th 1123 (1995) 46 Cal. Rptr. 2d 351 THE PEOPLE, Plaintiff and Respondent, v. JOHN EARL CARTWRIGHT, Defendant and Appellant. Docket No. C019075. Court of Appeals of California, Third District. October 30, 1995. *1129 COUNSEL Wesley A. Van Winkle, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assist...
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delivered the opinion of the Court. We must decide whether the creditor of a debtor in bankruptcy may, in order to protect its setoff rights, temporarily withhold payment of a debt that it owes to the debtor in bankruptcy without violating the automatic stay imposed by 11 U.S. C. § 362(a). I On January 25,1991, when respondent filed for relief under Chapter 13 of the Bankruptcy C...
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delivered the opinion of the Court. Like the shifting river channel near the property in dispute, this litigation has traversed from one side of our docket to the other. We must first recount this procedural history. In an earlier action, Mississippi citizens sued in the United States District Court for the Southern District of Mississippi to quiet title to the subject property. Certain Louis...
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Opinion This case illustrates that settling an unlawful detainer action does not necessarily settle all disputes arising from a residential landlord-tenant relationship and that, in order to assure finality of litigation, the settlement documents must be comprehensive. Introduction Plaintiffs and appellants Pauline and Jesus Landeros were formerly tenants in a home owned by defendants and r...
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69 F.3d 361 24 Media L. Rep. 1039, 95 Cal. Daily Op. Serv. 8449,95 Daily Journal D.A.R. 14,570 Ralph UNDERWAGER, Plaintiff-Appellant,v.CHANNEL 9 AUSTRALIA; "60 Minutes" of Australia; AnneSchlebaum; Mike Munro, Defendants,andJames Peters, Sr.; Anna Salter; Kim Oates; Charles R.Vaughn, Defendants-Appellees. No. 94-55227. United States Court of Appeals,Ninth Circuit. Argued ...
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Appellant Angelo Redmond seeks review of the district court’s order on remand from this court revoking his probation and sentencing him to thirty-three months imprisonment. On June 9, 1992, a grand jury in the District of Oregon returned an indictment against Angelo Redmond and two other individuals. As part of an agreement with the government, Redmond pleaded guilty to one count in the indictmen...
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Defendant Raniel Bonifacio Amparo appeals from his jury convictions on federal firearms charges. On appeal he argues that the district court erred by instructing the jury that as a matter of law possession of an unregistered sawed-off shotgun is a crime of violence under 18 U.S.C. § 924(c)(3)(B). We affirm. I. FACTS AND PRIOR PROCEEDINGS An undercover ATF agent arrested Amparo after f...
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Mr. Sacks invested in solar energy devices. The Internal Revenue Service disallowed his depreciation deductions and investment tax credits on the ground that his sale and leaseback transactions were shams. The IRS prevailed in Tax Court, but we reverse. I. FACTS In the 1970’s, after the country suffered through the Arab oil embargo and a sharp increase in the price of oil, some pe...
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Vincente Cepeda appeals his convictions for two counts of second-degree robbery and one count of theft by receiving stolen property. He argues that the trial court erred in admitting certain hearsay, and that the government failed to prove elements necessary to one of the robbery convictions and the theft by receipt conviction. We have juris *371 diction pursuant to 48 U.S.C. § 142...
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Opinion Last April, Division Four of our court held that subdivision (a)(3) of section 1785.13 of the Civil Code 1 —which limits the information a credit agency may report regarding a tenant’s involvement in unlawful detainer actions—unconstitutionally infringes upon First Amendment rights by prohibiting the truthful reporting of public information. (U.D. Registry, Inc. ...
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Opinion Introduction Plaintiffs and appellants Ohannes Tchorbadjian and Magy Tchorbadjian (plaintiffs or the Tchorbadjians) appeal from the judgment entered following *1214 the grant of the motion for summary judgment of defendants and respondents Kane & Whelan and Allan Whelan (Whelan). Plaintiffs sued Whelan for legal malpractice. Whelan’s motion for summary judgment w...
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Opinion Peram, a California limited partnership, appeals the trial court’s judgment in favor of Chumash Hill Properties, Inc. (Chumash) on Chumash’s complaint against Peram, as well as appealing the court’s dismissal of Peram’s cross-complaint against Chumash. We conclude the trial court properly determined Chumash’s subleasehold survived its sublessor’s rejection of the primary lease in ...
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*1237 Opinion Jairo Carrea Estrada, Javier Ruiz-Serrano, and Raul Serrano-Ruiz appeal their convictions for conspiracy to transport cocaine, transportation of cocaine, and possession of cocaine for sale, with quantity enhancements as to Javier and Raul. 1 Estrada contends his consecutive sentence for possession for sale of cocaine was unauthorized because it merged wit...
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Opinion By information filed in Stanislaus County Superior Court on January 13, 1994, appellant, Kathleen O’Connell, was charged with the attempted premeditated murder of her two minor children in violation of *1185 Penal Code sections 664/187 and two related counts of felony child endangerment in violation of Penal Code section 273a, subdivision (l). 1 Each count ...
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Opinion In this appeal we decide whether dismissal is mandatory or discretionary under Business and Professions Code section 6201, subdivision (a), for a lawsuit filed by an attorney against a client to recover fees if the attorney fails to give notice of the client’s right to arbitration. The trial court concluded dismissal was mandatory. Because we conclude that dismissal is discretiona...
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We consider whether the district court had jurisdiction to enforce a settlement agreement that resolved a federal case. We conclude that it did not and vacate. We have jurisdiction under 28 U.S.C. § 1291. I. BACKGROUND In 1991, a dispute arose among Colvin, O’Connor and others about the ownership of certain computer programs. O’Connor sued Colvin and other defendants in state court, and t...
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Surinder Pal Singh, a native of Punjab, India, appeals the district court’s denial of his petition for habeas corpus brought pursuant to 28 U.S.C. § 2254 and section 106(b) of the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1105a(b). Singh contends that the Board of Immigration Appeals (“BIA”) erred in denying his application for asylum and withholding of deportation. We have jurisdiction ...
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Opinion A jury convicted appellant of forcible rape (Pen. Code, 1 §261, subd. (a)(2); count II), forcible sodomy (§286, subd. (c); count V), and forcible oral copulation (§ 288a, subd. (c); count IX). 2 The trial court found true four felony conviction allegations (§§ 667, former subd. (a), 667.6, former subd. (a)) and imposed a 35-year state prison sentence. Appellant contends his trial ...
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*1279 Opinion Plaintiff the 3250 Wilshire Boulevard Building, a limited partnership, appeals from an order of dismissal, entered June 23, 1993, after a demurrer was sustained, without leave to amend, to the claims pleaded in its first amended complaint against respondents Employers Insurance of Wausau and Wausau Underwriters Insurance Company. (A co-plaintiff, Housing Affiliates, Inc., pleade...
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Opinion Larry F. Brooks, Yuba County Planning and Building Services Director, and Frank D. Ellis II, the deputy director, sued individual members of the 1993-1994 Yuba County Grand Jury claiming they were defamed in two grand jury reports about the operation of their department. *1290Plaintiffs cited Penal Code section 930,1 and alleged the reports were not privileged because the grand jury retur...
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Opinion There is currently no tort liability in California for refusal to renew a professional liability insurance policy for reasons in violation of public policy. Whether such liability should be imposed is a matter for the people of California to decide, either by initiative or through the Legislature. We may not legislate on the subject in their stead. Procedure NORCAL Mutua...
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Opinion Statement of the Case Defendant Joel Medina Murillo was convicted of residential burglary after a court trial. The court further found true allegations that he suffered two prior serious felony convictions. Thereafter the court struck one of the prior convictions. It sentenced defendant under the three strikes law (Pen. Code, § 667, subds. (b)-(i) 1 ) and impos...
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69 F.3d 381 1995 Copr.L.Dec. P 27,461, 36 U.S.P.Q.2d 1654,95 Cal. Daily Op. Serv. 8503,95 Daily Journal D.A.R. 14,671 ALLARCOM PAY TELEVISION, LTD., a Canadian corp., Plaintiff-Appellant,v.GENERAL INSTRUMENT CORP., a Delaware corp.; Cable HomeCommunication Corp., a Delaware Corp.; ShowtimeNetworks, Inc., a Delaware corp.,Defendants-Appellees. No. 93-56222. United States Court of ...
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Guillermo JaramiUo appeals his conviction for making false declarations under 18 U.S.C. § 1623(c). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse. I Standard of Review The district court’s statutory interpretation is reviewed de novo. United States v. Polizzi 801 F.2d 1543, 1547 (9th Cir.1986). A district court’s factual findings are reviewed for clear error. United States v. Schmid...
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39 Cal. App. 4th 1309 (1995) 46 Cal. Rptr. 2d 507 MARTIN SUMAN, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BMW OF NORTH AMERICA, INC., Real Party in Interest. Docket No. B094591. Court of Appeals of California, Second District, Division Three. November 2, 1995. *1312 COUNSEL Lawrence J. Hutchens for Petitioner. No appearance for Respondent. Lewis, D'Amato, Brisbois &...
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Opinion During arbitration proceedings, plaintiffs and defendants settle their lawsuit. Plaintiffs then renege. At a second arbitration hearing the arbitrator finds the settlement to be valid. Three years later, defendants obtain a judgment confirming the arbitration award which upheld the settlement. Plaintiffs sue the attorneys who negotiated the settlement. Does the statute of limitations for ...
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*1351 Opinion CQL Original Products, Inc. (OP) appeals an order granting National Hockey League Players’ Association’s (NHLPA) motion to dismiss OP’s first amended complaint pursuant to Code of Civil Procedure 1 section 410.30 enforcing the forum selection clause contained in the parties’ license agreement. OP contends enforcing the combined choice-of-forum/choice-of-l...
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Opinion Will a good faith settlement between the issuer of a blanket excess liability policy of insurance and its insureds, with respect to an occurrence assertedly covered by the policy, bar the claim of the issuer of a second excess liability policy, which assertedly covers the same occurrence, against the first insurer, for contribution of a proportionate share of amounts the second in...
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C. A. 4th Cir. Certiorari granted limited to Question 5 presented by the petition....
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C. A. 3d Cir. Motion of petitioner for leave to proceed in forma pauperis granted. Certiorari granted....
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OVERVIEW Christopher Mackinney appeals the district court’s grant of summary judgment in favor of defendants Garon Nielsen, Dash Butler, A1 Littles, and the City of Berkeley in his 42 U.S.C. § 1983 action. Mackinney alleges that his constitutional rights were violated when he was arrested and detained for writing on a sidewalk with chalk. We have jurisdiction under 28 U.S.C. § 1291. We affirm i...
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OPINION OVERVIEW Carlos Martinez pled guilty to conspiracy to possess with intent to distribute cocaine base. At the sentencing hearing, the district court found Martinez’s criminal history category to be II, based on his prior conviction for vandalism and his commission of the instant offense while on probation. The district court sentenced Martinez to 120 months in custody, which it found t...
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Opinion Handlery Hotels, Inc. (Handlery) appeals from the trial court’s grant of summary judgment in favor of the Franchise Tax Board (the Board). (Code Civ. Proc., § 437c.) In its complaint, Handlery sought a refund of taxes, contending that it had overpaid its 1991 franchise tax. The only issue before this court is a purely legal one—whether Handlery’s 1991 franchise tax should be calcu...
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*400ORDER The Constitution of the United States, Article VI, provides: “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” The plaintiffs in this petition for rehearing renew their motion that I recuse myself because my “fervently-held religious beliefs would compromise [my] ability to apply the law.” This contention stands in confl...
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The Federal Bureau of Investigation (“FBI”) appeals from the portion of the district court’s order requiring that the FBI produce certain documents pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, in an action filed by Lyman D. Spurlock (“Spurlock”) seeking “all FBI records concerning himself.” The FBI contends that reversal is compelled because the district court erred in o...
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This case involves a protracted dispute between Arizona Public Service Company (“APS”) and the Navajo Nation over whether the Navajo Nation can regulate certain APS employment policies affecting the hiring of Navajos who wish to work in APS’s Four Corners Power Plant. The plant is operated on tribal trust land in northwestern New Mexico that APS leased from the Navajo Nation in agreements that req...
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Jacklyn Tull 1 appeals from the district court’s judgment 2 in favor of the United States in which the court determined that she was responsible for the failure to pay over taxes withheld from employees’ wages by Hatfield Trucking Service, Inc. The sole issue is Tull’s contention that the district court erred when it determined that Hatfield did not have the ability to dir...
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71 F.3d 723 In re GRAND JURY PROCEEDINGS.Roland MORA, Witness-Appellant,v.UNITED STATES of America, Appellee. Nos. 95-56436, 95-56439. United States Court of Appeals,Ninth Circuit. Submitted to Motions Panel.Decided Nov. 6, 1995. Carlton F. Gunn, Federal Public Defender, Los Angeles, California, for Appellant. Ronni B. MacLaren, Assistant United States Attorney, Lo...
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Opinion In this case, we hold that a prevailing defendant on a special motion to strike brought pursuant to Code of Civil Procedure 1 section 425.16 is entitled to recover attorney fees and costs only for the motion to strike, not for the entire action. I. Factual And Procedural Background This case is the follow-up to Lafayette Morehouse, Inc. v. Chr...
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*1373 Opinion Victor Q. Ramirez was convicted by a jury of second degree robbery (Pen. Code, §§ 211, 212.5) and assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1), a lesser included offense within the charged offense of attempted murder. (Pen. Code, §§ 664, 187.) 1 The jury also found that Ramirez intentionally inflicted great bodily injury upon the victim (§ 12022.7) and used a d...
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Opinion Defendant Lasance Ravon Douglas (defendant) was convicted of kidnapping for robbery, robbery, forcible oral copulation and rape. Sentence enhancement allegations that he kidnapped the victim for purposes of forcible oral copulation and rape were found true. In this appeal, he contends that: 1. It was unconstitutional for the case to be tried before a municipal court judge, pursuant to...
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John Washington interlocutorily appeals the district court’s denial of a motion to dismiss his criminal indictment on the basis of double jeopardy. Washington is charged with one count of conspiracy to possess and distribute cocaine base in violation of 21 U.S.C. § 846, six counts of possession and distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1), and one count of use of a commu...
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69 F.3d 1475 69 Fair Empl.Prac.Cas. (BNA) 408, 64 USLW 2312,43 Fed. R. Evid. Serv. 64,95 Cal. Daily Op. Serv. 8618,95 Daily Journal D.A.R. 14,885 Sheryl G. HEYNE, aka Sheryl G. Hill, Plaintiff-Appellant,v.Mario CARUSO, individually, and in his capacity as Trusteefor The Mario Caruso & Anneliese Caruso RevocableFamily Trust, Defendant-Appellee. No. 94-15124. United States Court ...
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The district court dismissed Robert R. Estrada’s § 1983 action when he attended his deposition but refused to testify. Because a party who appears at a deposition but refuses to testify does not “fail to appear” for the purposes of Federal Rule of Civil Procedure 37(d), we reverse and remand. I In 1991, Estrada brought a § 1983 prisoner’s action against several employees of the California Dep...
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70 F.3d 1045 95 Cal. Daily Op. Serv. 8608, 95 Daily JournalD.A.R. 14,893AMERICAN-ARAB ANTI-DISCRIMINATION COMMITTEE; Arab AmericanDemocratic Federation; Association of American UniversityGraduates; Irish National Caucus; Palestine Human RightsCampaign; League of United Latin American Citizens;Michael Bogopolsky; Darrel Meyers; Southern CaliforniaInter-Faith Task Force on Central America...
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Opinion Introduction Plaintiff Terry Van Ryn, as guardian ad litem of two minor children, has appealed from the trial court rulings granting the motion of defendant Korean Air Lines Co., Ltd. (KAL) to enforce a compromise of the minors’ *1600 claims against KAL and approving the settlement. In 1983, Rebecca Scruton, the sole parent of the minors, was a passenger on KAL flight 007 and died w...
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Opinion In a contested jurisdictional hearing, the family court determined that Christopher Elaine Wilson, a resident of Texas, had consented to jurisdiction in California. Wilson appeals from the court’s order, contending that her contacts with California were limited to opposing custody and visitation orders under the Uniform Child Custody Jurisdiction Act (UCCJA; Fam. Code, § 3400 et seq.), wh...
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OPINION Introduction This appeal raises the issue of the validity of an administrative regulation of the Department of Social Services to limit reimbursement to the County of Los Angeles for emergency shelter costs for abused children. The County of Los Angeles contends the regulation which places a time limitation on social services provided at MacLaren Children’s Center is in excess of the ...
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Opinion There are two issues in these cross-appeals from a judgment in favor of Matthew Poire against C.L. Peck/Jones Brothers Construction Corporation, Inc. (Peck/Jones) for injuries suffered in a construction accident. Peck/Jones argues the trial court erred by refusing to reduce the judgment by an offset for amounts paid to plaintiff by settling defendants. Plaintiff argues that he was...
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39 Cal.App.4th 1561 (1995) 46 Cal. Rptr.2d 667 FAMILY PLANNING SPECIALISTS MEDICAL GROUP, INC., et al., Plaintiffs and Respondents, v. ROBERT POWERS, Defendant and Appellant. Docket No. A066362. Court of Appeals of California, First District, Division Two. November 9, 1995. *1563 COUNSEL Michael Millen for Defendant and Appellant. Smith, Merrill & Peffer and Mary B. Yudien for Plaintiffs and Resp...
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Opinion Sonny Le appeals from a judgment sentencing him to state prison for four years upon convictions of felony assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1), hereinafter ADW), misdemeanor battery (Pen. Code, § 242), and misdemeanor petty theft (Pen. Code, § 484). At the trial, appellant was charged only with second d...
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Opinion Defendant Toby Titus Wade appeals from a judgment of conviction for second degree murder (Pen. Code, § 187), 1 with a finding of personal use of a deadly weapon (knife) in the commission of a felony (§ 12022, subd. (b)). Defendant contends (1) the trial court erroneously failed to instruct sua sponte on lesser included offenses, (2) other jury instructions were improper...
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Opinion In this case we hold that provisions in a decedent's will, which was executed during a marriage that had been dissolved prior to his death, granting certain bequests in the event his spouse predeceased him to “my children and my spouse’s children” and “my issue and my spouse’s issue” fail as to “my spouse’s children” and “my spouse’s issue,” absent an expression of intent that the...
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Opinion The United States appeals an order establishing the relative priority of claims to the proceeds of the sale of real property owned by *1536decedent Howard Silberman. The United States contends that, pursuant to the federal insolvency statute (31 U.S.C. § 3713) its unnoticed tax liens take priority over the prior recorded judgment liens of respondents Household Finance Corporation and Hous...
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Opinion Petitioner seeks a writ of habeas corpus vindicating his claim the Sacramento Superior Court lacked jurisdiction to sentence him in *1550 absentia under Penal Code section 1203.2a. 1 We hold that under section 1203.2a the superior court must impose sentence within 30 days of receipt of a prisoner’s request to be sentenced in absentia, failing whi...
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39 Cal. App. 4th 1478 (1995) 46 Cal. Rptr. 2d 651 POWAY UNIFIED SCHOOL DISTRICT, Plaintiff and Appellant, v. JIH JUNG CHOW et al., Defendants and Respondents. Docket No. D019826. Court of Appeals of California, Fourth District, Division One. November 9, 1995. *1480 COUNSEL Lloyd M. Harmon, Jr., County Counsel, Diane Bardsley, Chief Deputy County Counsel, Lewis P. Zollinger and Michael B. Poyner, ...
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*1502 Opinion A portion of Rambla Pacifico Road 1 in what is now the City of Malibu (City) and earlier was within the County of Los Angeles (County) was blocked by earth movement and closed by the County in 1984. Re-Open Rambla, Inc. (ROR), whose members include affected homeowners, wants the Road reopened but first must determine who owns the portion lying within the City, incorporated in ...
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OPINION OVERVIEW Appellant, State Accident Insurance Fund Corporation (SAIF), is liable to the debtor for compensation for a permanent partial disability she suffers due to a work-related injury. SAIF seeks to reduce the amount of the award by a sum equal to an excess of temporary disability payments which SAIF overpaid to the debtor on her claim. 1 On cross-motions fo...
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188 B.R. 413 (1995) In re Glicerio D. RAMIREZ, Debtor. Glicerio D. RAMIREZ, Appellant, v. John WHELAN and Patricia Douce, Appellees. BAP No. CC-94-1409-JKV. Bankruptcy No. SB-93-22083-MG. United States Bankruptcy Appellate Panel of the Ninth Circuit. Submitted February 22, 1995. Decided June 2, 1995. Glicerio D. Ramirez, Adelanto, CA, in pro. per. No appearance made for appellees. Before JONES, K...
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OPINION The sole question raised in this appeal is whether a trustee who has been awarded the maximum compensation permissible under 11 U.S.C. § 326(a) 2 may receive additional compensation for services performed by a paraprofessional employed by the trustee. We hold that such additional compensation is barred by section 326(a) and REVERSE the contrary ruling of the bankrup...
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ORDER The Court heard arguments on defendants’ motion to dismiss or for summary judgment, defendants’ motion to amend answer, plaintiffs motion for reconsideration, plaintiff’s *1073 motion to strike, and the temporary receiver’s motion for compensation on October 26, 1994. Parties have subsequently filed supplement memoranda. Appearing for plaintiff Commodity Futures Trading...
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902 F. Supp. 1130 (1995) Ravinder Kumar SHARMA, Petitioner, v. Janet RENO, United States Attorney General, and Thomas Schiltgen, District Director, Immigration and Naturalization Service, Respondents. No. C 95-2175 SBA. United States District Court, N.D. California. September 29, 1995. *1131 *1132 *1133 Merle D. Kahn, Angela M. Bean & Associates, San Francisco, CA, for Plaintiff. Michael J. Y...
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C. A. 4th Cir. Certiorari granted limited to Question 1 presented by the petition....
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69 F.3d 1034 150 L.R.R.M. (BNA) 2839, 131 Lab.Cas. P 11,452,95 Cal. Daily Op. Serv. 8699,95 Daily Journal D.A.R. 15,055 NORTHERN CALIFORNIA DISTRICT COUNCIL OF LABORERS, on its ownBehalf and on Behalf of Laborers Local Union No.185, Plaintiff-Appellee,v.PITTSBURG-DES MOINES STEEL CO., Defendant,andPitt-Des Moines, Inc., Defendant-Appellant. No. 93-16645. United States Court of App...
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ORDER The opinion at 57 F.3d 766 (9th Cir.1995) is amended as follows: Page 770, right hand column, second full sentence should be removed beginning “The record ... guards.” Insert the following new sentence after the first sentence in the last paragraph of the opinion: ‘We express no opinion as to whether the military function exception may apply to personnel other than the contract guards who ar...
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Opinion C. Byron Scott and A1 Johnson were engineers employed by Pacific Gas and Electric Company (PG&E) in a senior managerial capacity when they were demoted. The demotion resulted in an approximately 25 percent reduction in salary and benefits, as well as a loss of all supervisorial authority. They sued, claiming, among other things, that PG&E had breached an implied-in-fact contract t...
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Opinion Gordon Vann, individually and doing business as Vann’s Auto Body Shop, Inc., (Vann) brought a declaratory judgment action against its liability insurer, the Travelers Companies (Travelers), seeking a declaration that Travelers was obligated to defend it in connection with a third party action alleging environmental contamination arising out of the operation of Vann’s auto body rep...
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*1575Opinion On November 4, 1992, Kenneth Lisi filed a petition to dissolve his marriage to Pamela Lisi. A bitter battle developed over the custody of the parties’ two minor children. Pursuant to Family Code section 3150, which authorizes the court to appoint private counsel to represent the interests of children in a custody proceeding, the court appointed respondent Pearl Franklin Vogel to repr...
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Opinion Plaintiff and appellant Jean T. Weber, “individually and as trustee for the Jean T. Weber Trust,” brought this action *1581 against Unique Funding, Inc., and its assignees defendants and respondents Langholz and Wolveck, under the federal Truth in Lending Act (15 U.S.C. § 1601 et seq., hereafter the Act), seeking return of interest and fees paid on a loan secured by r...
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Introduction Plaintiff Kevin Coplin 1 was suspended from high school for allegedly engaging in sexual harassment of a number of female students. During the suspension, school officials began expulsion proceedings. Coplin’s parents met with the officials and then signed a form, waiving their r...
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Claimant Michael Finnegan petitions this court for review of a decision by the Benefits Review Board, U.S. Department of Labor, Office of Workers’ Compensation Programs. Finnegan maintains that the Board reduced the hourly rate to be paid to the attorneys representing him in his disability claim under the Longshoremen’s and Harborworker’s Compensation Act, 33 U.S.C. § 901 et seq., without adequate...
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69 F.3d 1485 64 USLW 2326, 95 Cal. Daily Op. Serv. 8710,95 Daily Journal D.A.R. 15,103 Marsha Kaye GOTRO, Plaintiff-Appellee,v.R & B REALTY GROUP; R & B Management Co., Inc.; Howard F.Ruby; Edward R. Broida, et al., Defendants-Appellants.Marsha Kaye GOTRO, Plaintiff-Appellee,v.R & B REALTY GROUP; Howard F. Ruby; Edward R. Broida;Oakwood Management Company, Inc.; Robert J....
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Opinion Plaintiff Saltarelli & Steponovich, a law firm, appeals from an order dismissing its action against Peter J. Douglas, a former client. The primary question presented is whether plaintiff’s contractual lien on defendant’s prospective recovery in the lawsuit for which the firm had been retained to represent defendant survived defendant’s discharge in bankruptcy. We hold it does. ...
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39 Cal.App.4th 1826 (1995) 46 Cal. Rptr.2d 688 JONATHAN M., Petitioner, v. THE SUPERIOR COURT OF MENDOCINO COUNTY, Respondent; MENDOCINO COUNTY DEPARTMENT OF SOCIAL SERVICES, Real Party in Interest. Docket No. A071305. Court of Appeals of California, First District, Division Five. November 14, 1995. *1827 COUNSEL Mason & Morrison and Timothy J. Morrison for Petitioner. No appearance for Respo...
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39 Cal. App. 4th 1811 (1995) 46 Cal. Rptr. 2d 836 THE PEOPLE, Plaintiff and Respondent, v. HENRY DAVID FLORES, Defendant and Appellant. Docket No. B087747. Court of Appeals of California, Second District, Division Six. November 14, 1995. *1812 COUNSEL Raymond L. Girard, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, C...
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Opinion This appeal involves apparent conflicts between the provisions of Penal Code section 4011.6 and Welfare and Institutions Code sections 6550 and 6551, each authorizing the treatment of a minor offender referred to and detained in an appropriate state mental health facility (facility) pursuant to the Lanterman-Petris-Short (LPS) Act, Welfare and Institutions Code section 5000 et seq...
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Opinion Here we hold that the superior court located within the county in which an inmate is convicted of the crime that serves as the foundation for his placement in a state hospital as a mentally disordered offender (MDO) is the proper court to hear a petition for involuntary treatment under Penal Code section 2970. 1 Thus, the prosecutor who obtains the conviction that results in the place...
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Opinion Appellants Mary Havlicek and Stephen C. Havlicek, directors of respondent Coast-to-Coast Analytical Services, Inc. (CCAS), sought an *1849 order from the superior court allowing them to inspect the books and records of CCAS. In addition, appellants unsuccessfully sought to enjoin a pending merger by CCAS until they had completed their inspection. Appellants contend they have an “absol...
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Opinion A child died as the result of a motor vehicle accident caused by a drunk driver. The child’s parents became involved with Mothers *19 Against Drunk Driving (M.A.D.D.). M.A.D.D. banned them from membership because of their allegedly disruptive conduct. The parents, Carol and James Harris, sued respondents, M.A.D.D., and its general counsel, H. Dean Wilkerson, for arbit...
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This case involves an important issue, one which undoubtedly occurs with some regularity, and yet one that appears to remain a question of first impression, at least so far as a complete examination is concerned. At times, the United States seizes property, especially cash, and is ultimately found to have no proper claim to the property. When the property must be returned to its owner, the questi...
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We must decide whether an antitrust claim is a compulsory counterclaim in a prior patent infringement suit. We conclude that it is not, and reverse the district court’s dismissal of the complaint. I. Facts. Under the Saline Water Conversion Act of 1971, the government was to contract for water desalinization research. Title to any inventions resulting from the research was to vest in ...
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Opinion After a jury trial defendant Ralph E. Johnson was convicted of one count of violating Penal Code section 288, subdivision (b) (lewd act *26 on a child by force) and ten counts of violating Penal Code section 288, subdivision (a) (lewd act on a child). 1 [[/]] * [[/]]* We affirm. [[Facts]]* Discussion [[I, II]]* III Johnson [[/]]* contends the prosecution abused its d...
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40 Cal. App. 4th 398 (1995) 46 Cal. Rptr. 2d 498 JOHN A. BAUGHMAN, Plaintiff and Appellant, v. MEDICAL BOARD OF CALIFORNIA, Defendant and Respondent. Docket No. B075018. Court of Appeals of California, Second District, Division Four. October 23, 1995. *399 COUNSEL Ginsburg & Hlywa and Evan L. Ginsburg for Plaintiff and Appellant. Daniel E. Lungren, Attorney General, Barry D. Ladendorf and Hei...
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OPINION Ford Motor Company (“Ford”) and General Motors Company (“GM”) appeal an order of the bankruptcy court compelling GM and Ford to accept assignment of Debtors’ franchise agreements to Worthington Dodge, Inc. (“Worthington Dodge”) which is owned by Cal Worthington (‘Worthington”). The questions presented by these appeals are: (1) whether the bankruptcy court erred in applying California Ve...
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70 F.3d 539 26 Envtl. L. Rep. 20,232, 95 Cal. Daily Op.Serv. 8761,95 Daily Journal D.A.R. 15,182 Pietro PARRAVANO; Wayne Heikkila; Marguerite Dodgin; EarlCarpenter; David Bitts; Liz Henry; Norman L. De Vall;Pacific Coast Federation of Fishermen's Associations, Inc.;Humboldt Fishermens' Marketing Association; CaitoFisheries, Inc.; Golden Gate Fisherman's Association;Salmon Trollers ...
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Appellants are self-employed legal and business advisors who own shares in, and provide services to, several S corporations. They appeal from the district court’s grant of summary judgment against them in their income tax refund action against the United States. Their complaint alleged that the Internal Revenue Service (IRS) improperly disallowed Keogh plan deductions which they claimed in thei...
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BACKGROUND For almost three years, until his arrest in December 1993, Jay Franklin Yought was involved in a cocaine distribution ring in Alaska, conducting the operation with the help of at least seven other individuals. Although he was arrested and briefly jailed in early 1993 for a parole violation, *1500 Vought continued to direct the cocaine operation through Deanna Maurer. While Vought...
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Opinion A law firm performs services which significantly increase the benefits received by an injured worker. We hold that under such circumstances it is error to apply the Goler 1 rule in setting the attorney fees. We therefore annul the decision of the Workers’ Compensation Appeals Board (Board) denying reconsideration of the attorney fees awarded. Facts ...
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Opinion This case presents a new twist to the statute of limitations case law evolving in asbestos personal injury litigation. On October 28, 1987, John Darden (plaintiff) filed suit against General Motors Corporation (GM) and others for personal injuries based on exposure to asbestos (Darden I) . 1 On June 12, 1990, plaintiff stipulated to settlements totaling over $200,000 ag...
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Opinion Hector Encinas Valenzuela pled guilty to two counts of gross vehicular manslaughter while intoxicated. (Pen. Code, § 191.5.) He was sentenced to prison and appeals, claiming defects in the pleadings and sentencing error. We reject his contentions and affirm. Facts During the early morning hours of New Year’s Day 1993, Valenzuela, while intoxicated, drove down a Riverside street in excess o...
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40 Cal.App.4th 367 (1995) 47 Cal. Rptr.2d 288 Estate of GUISEPPE CASTIGLIONI, Deceased. ANNIE J. CASTIGLIONI, Petitioner and Respondent, v. ELIZABETH DEL POZO, as Special Administrator, etc., Objector and Appellant. Docket No. D022217. Court of Appeals of California, Fourth District, Division One. November 16, 1995. *369 COUNSEL Garry J. Bowman for Objector and Appellant. Atherton, Allen & Ge...
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Allan Bowlun Ing and Richard St. Clair were convicted of conspiracy to possess with intent to distribute cocaine and attempted possession with intent to distribute cocaine. Ing challenges his sentence on the ground that the district judge erred in denying him a downward adjustment for acceptance of responsibility. St. Clair challenges his sentence on the ground that the district court failed to ma...
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ORDER The memorandum disposition filed October 5, 1995, is redesignated as a per curiam opinion. OPINION George Goldman, a debtor in Chapter 7 bankruptcy, appeals the district court’s order overruling the bankruptcy court and denying him an extra homestead exemption under California Code of Civil Procedure § 704.730(a)(3). We reverse and remand. Section 704.730(a)(3)(C) provides a special $100,000...
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Opinion In this appeal, we are required to determine if the trial court or the jury should decide the issue of whether an insurer had “proper cause” to pursue a declaratory relief action in which it disputed insurance coverage. (Love v. Fire Ins. Exchange (1990) 221 Cal.App.3d 1136, 1151-1152 [271 Cal.Rptr. 246].) This question arises in the context of an insured’s c...
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*407Opinion Following denial of his suppression motion (Pen. Code,1 § 1538.5), appellant Jesse Chris Applin pleaded guilty to possession of cocaine base (Health & Saf. Code, § 11350, subd. (a)) and admitted having suffered a prior felony conviction (§ 667, subds. (c)-(j)). He was sentenced to 32 months in prison, calculated as the lower term of 16 months doubled pursuant to section 667, subdivisi...
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Opinion A defendant convicted of first degree murder with at least one special circumstance found true will be sentenced to either death or life *572 imprisonment without the possibility of parole. (Pen. Code, § 190.2; all further statutory references are to this code.) One of these special circumstances is the felony-murder special circumstance under which a murder occurred ...
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40 Cal. App. 4th 446 (1995) 46 Cal. Rptr. 2d 730 THE PEOPLE, Plaintiff and Respondent, v. CARLTON WILLIAMS, Defendant and Appellant. Docket No. B087667. Court of Appeals of California, Second District, Division Seven. November 20, 1995. *450 COUNSEL Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Ch...
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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 March 18, 1981, the District Attorney of Los Angeles County filed an information against defendant Ricardo Rene Sanders and Carletha Stewart and Franklin Freeman, Jr., in the superior court of that county, in connection with ...
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Valentine Rodriguez-Solel Botello appeals his conviction for communicating false information that a product was tampered with in violation of 18 U.S.C. § 1365(c). He disputes a jury instruction regarding the interstate commerce element of subsection 1365(c). Jurisdiction lay in the district court under 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm. I In June 1...
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40 Cal.App.4th 477 (1995) 46 Cal. Rptr.2d 871 NORMA LAURA MEDINA et al., Plaintiffs and Appellants, v. HILLSHORE PARTNERS et al., Defendants and Respondents. Docket No. B089355. Court of Appeals of California, Second District, Division Six. November 21, 1995. *479 COUNSEL William L. Veen, Kevin Lancaster and Gary Alexander for Plaintiffs and Appellants. Henderson & Wohlgemuth, James B. Cole a...
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40 Cal.App.4th 492 (1995) 46 Cal. Rptr.2d 744 DEBORAH B. ANDREWS, Plaintiff and Respondent, v. BEATRIZ VALDEZ, as Registrar/Recorder, etc., Defendant and Appellant. Docket No. B083581. Court of Appeals of California, Second District, Division Three. November 21, 1995. *493 COUNSEL De Witt W. Clinton, County Counsel, and Halvor S. Melom, Principal Deputy County Counsel, for Defendant and Appellant...
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Opinion This is the second appeal arising out of litigation between Structural Steel Fabricators, Inc. (Structural) and the City of Orange. In the first, Structural Steel Fabricators, Inc. v. City of Orange (1991) 234 Cal.App.3d 1206 [286 Cal.Rptr. 24], we reversed a summary judgment in favor of the city on its Civil Code section 3210 1 statute of limitations defense to Structural’s actio...
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Opinion A creditor attaches real property. The party claiming ownership of the property asserts a third party claim pursuant to Code of Civil Procedure section 720.110 et seq. 1 The third party has the burden of proving an interest in the subject property by a preponderance of the evidence. (§ 720.360.) We hold that when a creditor resists the claim by asserting the proper...
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Opinion The primary issue in this case is whether Nguyen committed burglary when he entered a house with the intent to steal property by giving the victim a worthless check in exchange for various items. We conclude the conduct constitutes burglary. Hung Hao Nguyen was convicted of three counts of burglary (Pen. Code, 1 § 459). In each count the victim advertised an item for sale in a local...
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40 Cal. App. 4th 539 (1995) 46 Cal. Rptr. 2d 880 PAUL MATSON, Plaintiff and Appellant, v. EUGENE J. DVORAK, Defendant and Respondent. Docket No. C020162. Court of Appeals of California, Third District. November 21, 1995. *541 COUNSEL Siegel, Yee & Jonas and Dan Siegel for Plaintiff and Appellant. Norman & Eames and James K. Norman for Defendant and Respondent. [Opinion certified for parti...
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A California jury convicted Edgar M. Hendricks of two counts of first degree murder with use of a firearm; one count of robbery with use of a firearm; one count of burglary with use of a firearm; and one count of grand theft. The jury in the penalty phase found multiple murders and felony-murder special circumstances and returned a death verdict. After exhausting his state appeals, Hendricks sough...
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70 F.3d 1090 95 Cal. Daily Op. Serv. 8880, 95 Daily JournalD.A.R. 15,411PEOPLE OF the TERRITORY OF GUAM, Plaintiff-Appellee,v.Francis A.C. CRUZ, Defendant-Appellant. No. 94-10548. United States Court of Appeals,Ninth Circuit. Submitted Nov. 8, 1995.*Decided Nov. 22, 1995. Lawrence J. Teker, Agana, Guam, for defendant-appellant. J. Andrew Artero-Boname, Assistant At...
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OPINION J. Burk Voigt appeals from the dismissal of this action against Richard D. Saveli, Presiding Judge of the Fourth Judicial District of the Alaska Court System, and several senior members of the Alaska Comí; System’s administrative staff. 1 Voigt contends that the district court erred in granting summary judgment in favor of the defendants on his claims under 42 U.S.C. § ...
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OPINION Following inmate Clarence Richard Wallis’ assignment to a prison work detail required to clean prison attics without any protection from exposed asbestos, Wallis brought a 42 U.S.C. § 1983 action for damages against defendants individually and in their official capacities as employees of the Eastern Oregon Correctional Institution (“EOCI”). Wallis now appeals the district court’s grant of ...
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70 F.3d 1078 Fed. Sec. L. Rep. P 98,946, 33 Fed.R.Serv.3d 658,95 Cal. Daily Op. Serv. 8802,95 Daily Journal D.A.R. 15,422 Max FECHT, On behalf of himself and all others similarlysituated; Errol Marcus; Norman Cooper; HamiltonJ. Sah, et al., Plaintiffs-Appellants,v.The PRICE COMPANY; Robert W. Price; Dennis R. Zook;Theodore Wallace, et al., Defendants-Appellees. No. 93-55541. ...
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70 F.3d 1071 95 Cal. Daily Op. Serv. 8808, 95 Daily JournalD.A.R. 15,426UNITED STATES of America, Plaintiff-Appellee,v.Heriberto BAHENA-CARDENAS, Defendant-Appellant. No. 94-50639. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 13, 1995.Decided Nov. 20, 1995. 1 Michael G. Wheat, Assistant United States Attorney, San Diego, California, for...
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This case represents another episode in Lawrence B. Smith’s unrelenting quest to establish that the Federal Aviation Administration (FAA) lacks authority to revoke pilot certificates in response to safety violations. Due to Mr. Smith’s litigious behavior, he has helped to develop his own adverse body of law in several circuits across this country.1 In the present action, Mr. Smith represents Jerre...
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We affirm the district court’s grant of Franklin’s petition for writ of habeas corpus. We agree with the analysis and conclusions reached by the district court and hereby adopt the district court opinion which is reported Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995). We supplement the opinion of the district court by including verbatim the prejudicial closing argument of the state prosec...
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11 Cal.4th 583 (1995) 904 P.2d 1205 46 Cal. Rptr.2d 594 KATHERINE ADAMS, Plaintiff and Appellant, v. AARON PAUL, Defendant and Respondent. Docket No. S041623. Supreme Court of California. November 22, 1995. *585 COUNSEL Barry Balamuth and Kelly Balamuth for Plaintiff and Appellant. Melamed & Birkley, Howard R. Melamed, Hansen, Boyd, Culhane & Watson, Kevin R. Culhane, Betsy S. Kimball and...
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Opinion The grandmothers of the plaintiff-appellants in this case ingested the drug diethylstilbestrol (DES) while pregnant with appellants’ mothers. It is claimed that, as a result of the ingestion, appellants’ mothers suffered disabilities that manifested themselves at various points after birth and that their children (appellants) suffered similar injuries when they were bom...
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Opinion Petitioner, the City of Los Angeles (City), seeks an extraordinary writ of mandate directing the superior court to set aside orders issuing writs of mandate in two related cases filed by real parties in interest, 1 Kang and Miyamoto. *596 I. Factual and Procedural History Since April 1985, the City has required a conditional use permit for off-site al...
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OPINION Before JELLEN 1 , PERRIS 2 , and MEYERS, Bankruptcy Judges. On motion of the debtor’s former spouse, an unsecured claimant, the bankruptcy court dismissed the debtor’s voluntary Chapter 7 petition pursuant to Bankruptcy Code § 305(a)(1) 3 . The debtor appeals. We reverse and remand. I. FACTS On April 15, 1994, the ...
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Opinion The word “enhancement” is bound to send shivers down the spine of any person charged with a felony. In some cases, such as the instant one, punishment for the enhancement may exceed the punishment for the underlying substantive offense. As the moving party in a criminal action, it is the People’s obligation not only to plead and prove an enhancement, but also to tender adequate in...
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*763 OPINION Proposition 187 is an initiative measure which was submitted to the voters of the State of California in the November 8, 1994 general election. It was passed by a vote of 59% to 41% and became effective the following day. The stated purpose of Proposition 187 is to “provide for cooperation between [the] agencies of state and local government with the federal governme...
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OPINION I The bankruptcy court for the District of Alaska refused to appoint a New York resident as Chapter 7 trustee, on the basis that he did not have an office in Alaska. Several creditors appeal this ruling. We AFFIRM. II FACTS On December 19, 1993, Martech USA, Inc. filed a Chapter 11 bankruptcy petition. The case was converted to Chapter 7 on December 21, 1994. Kenneth W. Batt...
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C. A. D. C. Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument....
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C. A. 9th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Waller v. Truck Ins. Exchange, Inc., 11 Cal. 4th 1, 900 P. 2d 619 (1995)....
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C. A. 9th Cir. Certiorari granted....
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Sup. Ct. Ala. Certiorari granted....
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70 F.3d 1093 95 Cal. Daily Op. Serv. 8912, 95 Daily JournalD.A.R. 15,597Irving LANCE, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 94-56579. United States Court of Appeals,Ninth Circuit. Submitted Nov. 14, 1995.*Decided Nov. 27, 1995. Barry S. Zelner, Beverly Hills, California, for plaintiff-appellant. Suzette Clover, Assistant United Sta...
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OPINION I. The Chapter 7 trustee, Kenneth W. Batt-ley, filed a complaint against the United States of America, Internal Revenue Service (“United States” or “IRS”) to avoid a federal tax lien. The bankruptcy court entered a judgment in favor of the trustee and it is from this judgment that the United States appeals. For the reasons set forth below, we REVERSE the bankruptcy court’s or...
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ORDER At a hearing held June 1, 1995, the Court denied defendants Julio Ramos-Oseguera, Roberto Ramirez, and Samuel Robles-Lopez’ motions to dismiss the Superseding Indictment on the. grounds of double jeopardy. That same day, defendants filed notices of appeal of the Court’s Order. Julio Ramos-Oseguera contended that the Court’s denial of his double jeopardy motion was immediately appeal...
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OPINION In this qualified immunity case we decide whether a prisoner’s First Amendment right to use his religious name in conjunction with his committed name on outgoing mail was clearly established in 1990. We also determine whether a prison notary public violated a clearly established law when she refused to attest to a document on which the inmate’s signature did not match his identification. ...
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Opinion Appellant, Local 21, International Federation of Professional and Technical Engineers, AFL-CIO (Local 21),1 appeals the denial of its *673petition for writ of mandate seeking to enforce an arbitration award concerning wages and benefits of certain school district employees. This case arises out of the passage of Proposition B, which amended the Charter of the City and County of San Francis...
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Opinion The time has come to reassert a well-established but apparently not well-known rule about monetary sanctions in discovery, The rule is that it is an abuse of discretion for a trial court to issue a terminating sanction for failure to pay the sanction. A monetary sanction is immediately enforceable as a judgment, unless the court rules that it is not. In an appropriate case failur...
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*640 Opinion Introduction Plaintiffs and appellants Rodney A. and Nancy Briggs own a home in the city of defendant and respondent City of Rolling Hills Estates. As a condition of permitting a substantial addition to plaintiffs’ house, the city required that an unapproved patio/deck which intruded on a neighbor’s privacy be removed. Plaintiffs did not seek judicial review of ...
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Opinion Introduction Community property is liable for debts incurred by either spouse during marriage. (Fam. Code, § 910, formerly Civ. Code, § 5120.110, subd. (a).) But exactly when is a debt “incurred”? The Family Code provides that “[i]n the case of a contract,” it is “at the time the contract is made.” (Fam. Code, § 903, formerly Civ. Code, § 5120.040.) So what does it mean ...
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40 Cal. App. 4th 651 (1995) 46 Cal. Rptr. 2d 925 FOOD 4 LESS SUPERMARKETS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; TABATHA FLETCHER, Real Party in Interest. Docket No. B092807. Court of Appeals of California, Second District, Division Four. November 28, 1995. *652 COUNSEL Morrison & Foerster, Timothy F. Ryan and Janie F. Schulman for Petitioners. No...
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James Lester challenges the Commissioner’s denial of his application for Social Security disability benefits. He argues that the Commissioner erred in failing to take into account the combined impact of his mental and physical impairments in determining whether his condition “equalled” a listed impairment, in disregarding the opinions of his treating physician and examining psychologist, and in re...
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Opinion I. Introduction Defendant, Fred L. Turner, 1 appeals from the judgment entered after a jury trial in which he was convicted of first degree residential robbery (Pen. *737 Code, 2 § 211) and false imprisonment by violence. (§ 236.) Defendant was found not guilty of a charge of second degree robbery in violation of section 211 in an unrelated incident. The trial court also found t...
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*752 Opinion Petitioner Greg Kreitman was convicted of 42 counts of contempt for failing to make spousal support and other payments required by a marital dissolution order. He was sentenced to 210 days in jail. In this petition for writ of habeas corpus he contends he was denied his right to a jury trial. We agree and remand the matter to the trial court with directions to resentence petition...
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*693 Opinion Defendant pled guilty to several narcotics offenses pursuant to a plea bargain, and a six-year prison term was imposed on May 31, 1988. However, the criminal proceedings were suspended, and he was committed to the California Rehabilitation Center (CRC). At that time, he was given 80 days of credit for actual time served. Defendant was received by the CRC on June 25, ...
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*746 Opinion The Department of Motor Vehicles (DMV) appeals from a judgment granting William Pybum’s petition for a writ of mandate and ordering DMV to reinstate Pybum’s driving privilege. For reasons we shall explain, we reverse the judgment. Facts On October 11, 1991, Pybum was involved in an accident that caused bodily injury. A peace officer investigating the accident believed Pybum w...
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Opinion Hansen Mechanical, Inc. (Hansen) seeks a petition for writ of mandate to vacate the trial court’s June 14, 1995, order denying its motion for summary adjudication as to the third and fourth causes of action of the cross-complaint of cross-complainant and real party in interest Northridge Equipment Co., Inc. (Northridge), and to enter a new order granting summary adjudication in fa...
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OPINION A creditor has appealed the bankruptcy court’s order denying its motion to extend time to file a notice of appeal. It argues that a disposition designated as an “order” granting summary judgment was not a final, ap-pealable order. It also argues that its failure to file a timely notice of appeal was due to excusable neglect, and that its excusable neglect can be based on the oppos...
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ORDER The Amended Opinion, 66 F.3d 185 (9th Cir.1995), is withdrawn....
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This appeal concerns a 42 U.S.C. § 1983 action against state officials for breaching a private dam and the consequent draining of a private lake. The dam was breached by officials of the California Division of Safety of Dams (“DSOD”) because they believed it was in a damaged condition and dangerous to the homeowners downstream. The DSOD is responsible for inspecting non-federally owned dams in Cal...
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71 F.3d 1447 1996 A.M.C. 379, 95 Cal. Daily Op. Serv. 8999,95 Daily Journal D.A.R. 15,743 In re The GLACIER BAY.UNITED COOK INLET DRIFT ASSOC., an Alaska Cooperative Corp.,on Behalf of a Class Comprising Its Members andIts Members' Deckhands, Plaintiffs,v.TRINIDAD CORPORATION; West of England Ship Owners; MarkHawker; Kee Leasing Co.; Mathiasen's TankerIndustries, Inc.; Glacier BayTran...
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Opinion Defendant was convicted of two counts of lewd and lascivious conduct (Pen. Code, § 288, subd. (a)) and one count of possession of marijuana (Health & Saf. Code, § 11357, subd. (b)), and an allegation that he had suffered a prior serious felony conviction was found true (Pen. Code, § 667, subd. (a)). He was committed to state prison for 15 years. On appeal, he challenges the suffic...
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Opinion Frances S. (mother) appeals from a judgment of the juvenile court terminating her parental rights and releasing minors Gary P., Brittany P., and David P., for adoption. (Welf. & Inst. Code, § 366.26.) The sole ground for this appeal is mother’s contention the judgment is not in the best interest of minors because adoption would sever ties with the maternal grandmother, depriving them of t...
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Opinion In this case, Kevin J.’s parental rights were terminated at a selection and implementation hearing (Welf. & Inst. Code, § 366.26). He exercised his statutory right to appeal. Because he is unable to afford counsel, this court appointed a competent attorney to represent him at taxpayer’s expense (Cal. Rules of Court, rule 1435(b); In re Simeth (1974) 40 Cal.App.3d 982, 984 [115 Cal.Rptr. 6...
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40 Cal.App.4th 787 (1995) 47 Cal. Rptr.2d 326 FRANK BURNABY, Plaintiff and Respondent, v. STANDARD FIRE INSURANCE COMPANY, Defendant and Appellant. Docket No. B080612. Court of Appeals of California, Second District, Division One. November 30, 1995. *788 COUNSEL Haight, Brown & Bonesteel and Roy G. Weatherup for Defendant and Appellant. Berger & Norton, Steven A. Blum, George M. Soneff an...
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Opinion Appellant Robert Earl McCoy was charged by information with murder, with a prior second degree murder special circumstance, personal knife use and great bodily injury enhancements, and two prior serious felonies. (Pen. Code, §§ 187, 190.2, subd. (a)(2), 12022, subd. (b), 1203.075.) 1 Appellant pled not guilty and not guilty by reason of insanity. Trial was by jury, whic...
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Opinion The juvenile court placed appellant Ramon A. in a county camp facility based in part on a finding that he violated Penal Code section 12034, subdivision (a), which makes it a misdemeanor for a driver “knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 12031 of this code or Section 2006 of the Fish and Game Code.” (Pen. Co...
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Opinion Introduction Defendant Erick L. Womack appeals from a judgment of conviction entered after a jury found him guilty of willful, deliberate and premeditated attempted murder (Pen. Code, §§ 187, subd. (a), 664), in the course of which he used a deadly weapon (id., § 12022, subd. (b)), and attempting to induce a witness to give false or to withhold true testimony (id., § 137, subd. (b...
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*895 Opinion This products liability case requires our consideration of the evolving tort of intentional spoliation of evidence. Balancing relevant factors, we will hold that the trial court erred in submitting to the jury a cause of action for intentional spoliation of a manufacturer’s design documents, when the destruction occurred before the plaintiff’s injury and after the pr...
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I concur in the judgment. I agree with the Chief Justice and Justices Mosk and Werdegar that this court may not issue a writ of mandate commanding *679enforcement of Proposition 73 and that we may not reform Proposition 73 to avoid constitutional infirmity. Unlike my colleagues, however, I do not base these conclusions on a determination that Proposition 73 is not amenable to judicial reformation...
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Concurrence by Judge NOONAN. Appellant Juan Ramon Matta-Ballesteros appeals his convictions following jury trial on the following charges: (1) committing a crime of violence in aid of racketeering in violation of 18 U.S.C. § 1959; (2) conspiring to kidnap a federal agent engaged in his official duties in violation of 18 U.S.C. § 1201(c); and (3) kidnapping a federal agent engaged in his official ...
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71 F.3d 1434 150 L.R.R.M. (BNA) 3002, 131 Lab.Cas. P 11,455,19 Employee Benefits Cas. 2882,95 Cal. Daily Op. Serv. 9031,95 Daily Journal D.A.R. 15,862 NATIONAL LABOR RELATIONS BOARD, Petitioner,Beverage Dispensers' Union, Local 165, Hotel Employees &Restaurant Employees International Union, AFL-CIO,Petitioner-Intervenor,v.UNBELIEVABLE, INC., d/b/a Frontier Hotel & Casino, Responde...
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Opinion by Judge REINHARDT; Concurrence by Judge NOONAN. OPINION This action arises out of decisions by the Nevada State Private Investigators Licensing Board (“the Board”), denying the plaintiffs’ applications for licenses in the fields of private investigation, private patrol, and process serving. The plaintiffs contend that one of the Board members had a pecuniary interest in the outcome and w...
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Opinion Introduction Respondents, the City of Long Beach (the City), the City’s Manager, James C. Hankla and the City’s Chief of Police, William C. Ellis (the Chief), appeal from the grant of a peremptory writ of mandate ordering them to *963 provide petitioner, Gary Runyan, a police officer with the City, an administrative appeal before the City’s civil service commission in accordance wit...
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40 Cal. App. 4th 1024 (1995) 47 Cal. Rptr. 2d 348 JEFFREY R. BREWER, Plaintiff and Appellant, v. ANITA TEANO, as Executor, etc., Defendant and Respondent. Docket No. B082617. Court of Appeals of California, Second District, Division Four. December 1, 1995. *1026 COUNSEL Donald T. Whitson for Plaintiff and Appellant. Thomas & Price and Christian E. Sanne for Defendant and Respondent. *1027 OPI...
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Opinion Plaintiffs Gary Lorenz and Mary Ross appeal after the trial court vacated a $2,250,000 default judgment against defendant Commercial Acceptance Insurance Co. (hereafter, CAIC). (Code Civ. Proc., § 473.) *985 Plaintiffs contend the trial court erred in vacating the default judgment. 1 For reasons we shall explain, we conclude the trial court did not err. We ...
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Opinion The mother of Johnny S. and Geneva R. contends that the juvenile court erred in placing the children with their father in Texas without complying with the provisions of the Interstate Compact on Placement of Children (ICPC) (Fam. Code, § 7900 et seq.). We hold that compliance with the ICPC is not mandatory when a California court places a child with a parent residing in another state. W...
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Opinion In this appeal, we review the judgments entered in favor of two defendant entities, Security Pacific National Bank (the Bank), and Michael Yurosek, David Yurosek and Mike Yurosek & Son (the Yuroseks), in an action brought by plaintiff Charles J. Lyons, Jr., a cosignatory with the Yuroseks on a $2,350,000 promissory note to the Bank. The complaint alleged three counts of conspiracy...
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Opinion In People v. Memro (1985) 38 Cal.3d 658 [214 Cal.Rptr. 832, 700 P.2d 446] (Memro I), we reversed a judgment imposing a death sentence *811under the 1977 death penalty statute. The district attorney filed a new information in Los Angeles County Superior Court on May 13, 1986, charging defendant with the murders of Scott Fowler and Ralph Chavez, Jr., in July 1976, and of Carl Carter, Jr., i...
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11 Cal.4th 694 (1995) 906 P.2d 2 47 Cal. Rptr.2d 165 THE PEOPLE, Plaintiff and Respondent, v. TEOFILO MEDINA, JR., Defendant and Appellant. Docket No. S012644. Supreme Court of California. November 30, 1995. *721 COUNSEL Fern M. Laethem, State Public Defender, under appointment by the Supreme Court, Virginia C. Lindsay, Acting Chief Deputy State Public Defender, Victor J. Morse, Leslie Rose and I...
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40 Cal.App.4th 825 (1995) 47 Cal. Rptr.2d 604 In re ANDREW B. et al., Persons Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. HERBERT B., Defendant and Appellant. Docket No. G017193. Court of Appeals of California, Fourth District, Division Three. November 30, 1995. *827 COUNSEL Linda M. Fabian, under appointment by the Court of Appeal, for ...
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*979 Opinion Joseph Menna (hereafter applicant) is permanently disbarred from the practice of law in New Jersey as a result of his felony convictions for theft of client funds, failure to file a state income tax return, and manufacture of methamphetamine. Subsequent to his disbarment, he moved to California, passed the bar examination, and sought admission to the State Bar. ...
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Opinion A jury convicted defendant John Donald Dunn of first degree murder (Pen. Code, §§ 187, 189)1 and found he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The trial court modified the verdict (§1181, subd. 6) to second degree murder because the court was not satisfied beyond a reasonable doubt that the killing was deliberate and premeditated. Sentenced to ...
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Opinion Not long after midnight on January 5, 1988, the body of Esther “Goosey” Alvarado, a homeless prostitute and heroin addict, was found lying facedown on the edge of a country road near Grayson, a small town in Stanislaus County about 15 miles west of Modesto, California. She *910had shotgun and small-caliber bullet wounds in her chest and abdomen. Beside her body, scrawled in the wet ground...
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516 U.S. 124 (1995) THINGS REMEMBERED, INC. v. PETRARCA No. 94-1530. United States Supreme Court. Argued October 2, 1995. Decided December 5, 1995. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT *126 Thomas, J., delivered the opinion for a unanimous Court. Kennedy, J., fileda concurring opinion, in which Ginsburg, J., joined, post, p. 129. Ginsburg, J.,filed a concurring o...
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Opinion by Judge THOMPSON. The Government of Guam (Guam) appeals the district court’s grant of summary judgment in favor of Hotels of the Marianas (Guam Hilton). The dispute is over the amount of rebate due the Guam Hilton on taxes payable to Guam on corporate income for tax years 1986 through 1990. Pursuant to a statutory scheme designed to promote investment in Guam, the Governor of Guam (G...
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Opinion This appeal raises an issue regarding the scope of personal injury coverage in a policy of insurance issued to appellants Martin Marietta Corporation, Martin Marietta Carbon, Inc., and Martin Marietta Aluminum (Martin Marietta) by respondent Insurance Company of North America (INA). Specifically, we are asked to determine whether policy language insuring Martin Marietta’s liabilit...
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40 Cal. App. 4th 1090 (1995) 47 Cal. Rptr. 2d 386 RITA MARTINS, Petitioner, v. WORKERS' COMPENSATION APPEALS BOARD, FARM BOY RESTAURANT et al., Respondents. Docket No. B088736. Court of Appeals of California, Second District, Division Six. December 5, 1995. *1091 COUNSEL Haynes, Wilkison & Stone and Donald W. Haynes for Petitioner. John I. Gilman and Timothy M. Ehritt for Respondents. OPINION...
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Opinion We are called upon to delicately balance precious First Amendment rights against the government’s interest in protecting minors from viewing harmful matter. Wayne C. Berry, who distributes an “adult” publication from sidewalk newsracks, challenged enforcement of a city ordinance of the City of Santa Barbara (City) on the theory that it violated the United States Constitution. The trial ...
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*1100 Opinion Gary Schlessinger, an attorney, and Rosenfeld, Meyer & Susman (RM&S), his former law firm, could not agree on the payment due Schlessinger upon his resignation from the partnership. Pursuant to the partnership agreement, the dispute proceeded to arbitration before the American Arbitration Association. The arbitrator disposed of the principal issues by way of two mot...
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Opinion Appellant Gregory Brandon was sentenced to four years in prison after he was found guilty in a court trial of first degree burglary. A jury was initially impaneled to decide the matter, but was discharged after appellant’s counsel moved for a mistrial for reasons we shall explain more fully in this opinion. Appellant objected to the mistrial. He contends in this appeal that the judgment...
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11 Cal.4th 992 (1995) 906 P.2d 440 47 Cal. Rptr.2d 478 FARMERS INSURANCE GROUP et al., Plaintiffs and Appellants, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents. Docket No. S041795. Supreme Court of California. December 6, 1995. *996 COUNSEL Carroll, Burdick & McDonough, Christopher D. Burdick, David M. Rice and Martin R. Gran for Plaintiffs and Appellants. *997 Silver, Shaeffer ...
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*1052 Opinion This case presents the question whether former Insurance Code section 11580.2, subdivision (i) (hereafter section 11580.2(i)), 1 establishing certain conditions precedent to a claim for coverage under an uninsured motorist policy, applied to claims on an underinsured motorist policy. The Court of Appeal found the subdivision inapplicable, and we agree. ...
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Opinion In this action challenging the City of Santa Cruz’s (City’s) adoption of a general plan, the trial court ordered City’s planning director and commissioners to reveal in depositions “whether there was an agreement among the council and commission members to refuse to consider any zoning for the greenbelt properties other than agricultural, regardless of the facts or evidence presented.” ...
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Opinion Defendants and cross-complainants Urban West Communities, UWC-Valley Circle, UWC-Canoga and the American Insurance Company appeal from the judgment following bench trial entered for plaintiff and cross-defendant Royster Construction Company. For the reasons set forth below, we modify the judgment both in regard to its award of attorney fees and its award of prejudgment interest. ...
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40 Cal. App. 4th 1137 (1995) 47 Cal. Rptr. 2d 343 THE PEOPLE, Plaintiff and Respondent, v. ALONZO HAMILTON, Defendant and Appellant. Docket No. E015214. Court of Appeals of California, Fourth District, Division Two. November 30, 1995. *1139 COUNSEL Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assis...
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902 F.Supp. 1178 (1995) DEPARTMENT OF WATER AND POWER OF the CITY OF LOS ANGELES, Southern California Edison Company, the City of Pasadena the City of Glendale and the City of Burbank, Plaintiffs, v. ABB POWER T & D COMPANY, Defendant. No. CV 94-3070-SVW(BQRx). United States District Court, C.D. California. September 8, 1995. *1179 *1180 Henry J. Bogust, William C. Falkenhainer, Clay Robbins ...
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70 F.3d 1111 33 Fed. R. Serv. 3d 671, 95 Cal. Daily Op. Serv. 9288,95 Daily Journal D.A.R. 16,197 Virginia Espinoza GUERRERO; Marcos Albert Guerrero,Plaintiffs-Appellants,v.William CUMMINGS; City of Nyssa, Defendants-Appellees. No. 93-36065. United States Court of Appeals,Ninth Circuit. Submitted Nov. 16, 1995*.Decided Dec. 7, 1995. Sanford Jay Rosen, Rosen, Bien &...
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71 F.3d 1484 76 A.F.T.R.2d 95-7887, 95 Cal. Daily Op. Serv. 9296,95 Daily Journal D.A.R. 16,199 UNITED STATES of America; Leslie M. Nishimura, RevenueAgent of the Internal Revenue Service, Plaintiffs-Appellants,v.Laddie F. JOSE, Trustee of Jose Business Trust and JoseFamily Trust, Defendant-Appellee. No. 93-17028. United States Court of Appeals,Ninth Circuit. Argued and Submit...
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71 F.3d 1469 41 ERC 1925, 64 USLW 2388, 26 Envtl.L. Rep. 20,236,95 Cal. Daily Op. Serv. 9289,95 Daily Journal D.A.R. 16,203 HANFORD DOWNWINDERS COALITION, INC., a nonprofitcorporation, on its own behalf and on behalf of its members;Beatrice A. Christoph; Kathi Steinke; and Gloria D.Tinder, as individuals, Plaintiffs-Appellants,v.Dr. Walter DOWDLE, in his capacity as Administrator of theA...
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*1201Opinion In this case we review the trial court’s decision that a document containing eight words, seven of them proper names and an appellation, constituted a holographic will. Tai-Kin Wong (Tai) was a successful 44-year-old businessman who until just before death had a history of good health. He was living with his girlfriend Xi Zhao (Xi), and he enjoyed a close and loving relationship with...
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40 Cal. App. 4th 1274 (1995) 48 Cal. Rptr. 2d 229 GUADALUPE HERNANDEZ et al., Plaintiffs and Appellants, v. MODESTO PORTUGUESE PENTECOST ASSOCIATION, Defendant and Respondent. Docket No. C017923. Court of Appeals of California, Third District. December 6, 1995. *1276 COUNSEL Bernardino & Associates and Rafael Bernardino, Jr., for Plaintiffs and Appellants. Mason & Thomas and Bradley S. Th...
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Opinion Charlotte Biss appeals the order dismissing the case, contending the trial court erred: (1) by finding she had failed to make timely service on Robert J. Bohr and Daniel E. Kaplan; and (2) by refusing to consider her assertion of estoppel against John Mitchell’s claim she failed to make timely service on him. We affirm in part and reverse in part. *1249 Biss sued Boh...
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40 Cal.App.4th 1177 (1995) 47 Cal. Rptr.2d 389 MICHAEL LENT, Plaintiff and Appellant, v. JOHN DOE, Defendant and Respondent. Docket No. C018471. Court of Appeals of California, Third District. December 5, 1995. *1180 COUNSEL Mary R. Williams for Plaintiff and Appellant. California Women Lawyers, Dawn M. Schock and Mary Ann Soden as Amici Curiae on behalf of Plaintiff and Appellant. Moss & Eno...
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Opinion Introduction The issue in this case is the meaning of the word “request” in Labor Code section 5405.5. 1 That section states: “Except as otherwise provided in Section 5410, the period within which an employee may request vocational rehabilitation benefits provided by Section 139.5 is one year from the date of the last finding of permanent disability by the appeals ...
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Opinion The San Diego Daily Transcript (Transcript) appeals from a judgment in favor of respondent San Diego Commerce (Commerce), rejecting Transcript’s efforts to have Commerce’s adjudication as a newspaper of general circulation set aside. Transcript contends (as it did below) that in order for Commerce to qualify as a newspaper of general circulation under *1231 Government Code section 600...
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Opinion Convicted after jury trial of transportation and possession for sale of controlled substances, 2 defendant appeals from the judgment of conviction. Defendant’s sole contention on appeal is that his criminal prosecution violated the proscriptions against double jeopardy in the United *1270 States and California Constitutions because of the government’s prior...
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71 F.3d 779 76 A.F.T.R.2d 95-7894, 95 Cal. Daily Op. Serv. 9337,95 Daily Journal D.A.R. 16,255 ESTATE OF Gentry E. McKINNEY, By and Through its PersonalRepresentative, Virginia McKINNEY; VirginiaMcKinney, personally, Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee. No. 94-30415. United States Court of Appeals,Ninth Circuit. Argued and Submitted Sept. 11, 1...
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70 F.3d 1114 95 Cal. Daily Op. Serv. 9339 Erna E. NEWTON, Plaintiff-Appellant,v.SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee. No. 94-35900. United States Court of Appeals,Ninth Circuit. Argued and Submitted Nov. 16, 1995.Decided Dec. 8, 1995. Appeal from the United States District Court for the District of Oregon. Jon R. Stouffer and Maureen E. La...
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71 F.3d 776 77 A.F.T.R.2d 96-435, Bankr. L. Rep. P 76,778,95 Cal. Daily Op. Serv. 9338,95 Daily Journal D.A.R. 16,258 Danilo NESOVIC, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee. No. 94-55128. United States Court of Appeals,Ninth Circuit. Argued and Submitted May 3, 1995.Decided Dec. 8, 1995. A. LaVar Taylor, Santa Ana, California, for plainti...
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40 Cal. App. 4th 1254 (1995) 47 Cal. Rptr. 2d 399 SPRINT COMMUNICATIONS COMPANY L.P., Plaintiff and Respondent, v. STATE BOARD OF EQUALIZATION, Defendant and Appellant. Docket No. A067452. Court of Appeals of California, First District, Division Five. December 8, 1995. *1257 COUNSEL Daniel E. Lungren, Attorney General, and Julian O. Standen, Deputy Attorney General, for Defendant and Appellant. R...
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Opinion Plaintiff Mark J. Penning appeals from a judgment dismissing his class action complaint 1 after demurrer by defendants Glendale Federal Bank, its former and current parent companies, and its securities brokerage subsidiary. We reverse. Facts Glendale Federal Bank (the Bank) is a federally chartered savings and loan association organized and operating under the...
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40 Cal.App.4th 1300 (1995) 47 Cal. Rptr.2d 723 THE PEOPLE, Plaintiff and Respondent, v. MARK ANTHONY PLANAVSKY, Defendant and Appellant. Docket No. G015750. Court of Appeals of California, Fourth District, Division Three. December 8, 1995. *1301 COUNSEL John S. Olson, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chi...
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Appeal from D. C. D. C. Further consideration of question of jurisdiction postponed to hearing of case on the merits. Brief of appellant is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, January 19, 1996. Brief of appellees is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, February 16, 1996. This Court’s Rule 29.2 ...
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C. A. 7th Cir. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon oppos*1021ing counsel on or before 3 p.m., Friday, January 19, 1996. Brief of respondents is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, February 16, 1996. This Court’s Rule 29.2 does not apply....
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D. C. D. C. [Probable jurisdiction postponed, ante, p. 1020.] Appeal dismissed under this Court’s Rule 46.1....
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C. A. D. C. Cir. Motions of Screen Actors Guild, Inc., et al., Major League Baseball Players Association, and National Hockey League Players et al. for leave to file briefs as amici curiae granted. Certiorari granted. Brief of petitioners is to be filed with the Clerk and served upon opposing counsel on or before 3 p.m., Friday, January 19, 1996. Brief of respondents is to be filed with the Clerk ...
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Opinion Defendant Zsa Zsa Gabor and her husband, defendant Frederic Von Anhalt, appeal from a judgment on a special verdict in favor of plaintiff Bike Sommer in her action for defamation. On appeal, defendants contend the court erred in (1) applying California, rather than German, defamation law; (2) instructing the jury; and (3) admitting evidence the defamation caused distress to Sommer...
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73 F.3d 884 1996 A.M.C. 342, 64 USLW 2394, 95Cal. Daily Op. Serv. 9371,95 Daily Journal D.A.R. 16,335 In the Matter of the Petition of F/V CAROLYN JEAN, INC., forLimitation of or Exoneration From Liability,Petitioner-Appellee,v.Robert J. SCHMITT, for the Estate of Timothy SCHMITT,Claimant-Appellant. No. 94-35583. United States Court of Appeals,Ninth Circuit. Argued and Submitte...
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Calvin Dayea appeals an award of restitution granted to Mrs. Susan Zesiger, the widow of Sgt. David Zesiger, an Arizona police officer killed while on duty by Dayea’s drunken driving. We reverse the district court’s restitution order in favor of Mrs. Zes-iger because, although she lost more from Dayea’s crime than any court order could ever replace, we conclude that she was not eligible under the...
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73 F.3d 867 41 ERC 1865, 26 Envtl. L. Rep. 20,359,95 Cal. Daily Op. Serv. 9368,95 Daily Journal D.A.R. 16,341 ENVIRONMENTAL DEFENSE CENTER, a non-profit corporation,Plaintiff-Appellee,v.Bruce BABBITT, Secretary of the Interior; Mollie Beattie,Director, U.S. Fish and Wildlife Service,Defendants-Appellants. No. 95-56255. United States Court of Appeals,Ninth Circuit. Argued and S...
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Plaintiff, the widow of an Army sergeant who died in a military hospital in Japan, appeals the dismissal of her action against the government for negligent infliction of emotional distress. The issues on appeal are: (1) whether the foreign country exception of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(k), in conjunction with the exclusive remedy provision of the Federal Employees Liab...
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Connie K. Han (“Han”) appeals from the grant of summary judgment in favor of Mobil Oil Corporation (“Mobil”). The district court held that the Han’s claims for breach of contract, bad faith denial of the existence of contract and contractual breach of the covenant of good faith and fair dealing under the Reimbursement Agreement executed by the parties were barred by a contractual limitations pe...
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ORDER The opinion is amended as follows: change the third sentence of the first paragraph under the heading “The Supplementary Extradition Treaty” at 61 F.3d 711, at 713 to read: . “The Provisional Irish Republican Army (“IRA”) of which Smyth reputedly is a member ...” ...
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Opinion California Constitution, article VI, section 4, provides: “In each county there is a superior court of one or more judges. The Legislature shall prescribe the number of judges and provide for the officers and employees of each superior court. . . . [¡D The county clerk is ex officio clerk of the superior court in the county.” (See also Gov. Code, § 26800; all further section references ar...
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Opinion I. Introduction In this case we hold that Judge R. Bryan Jamar erred by failing to state reasons for imposing upper terms of imprisonment, and we remand the cause for resentencing by another judge because of Judge Jamar’s persistent failure or inability to perform the fundamental duty of a sentencing court to state reasons for its sentencing choices. II. Background ...
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Opinion I. Introduction Gayle K. and Sandra K. appeal from an order denying their petition to be appointed as guardians of Stephen G., a minor. They contend that the trial court applied an erroneous standard of proof when it required them to show by clear and convincing evidence that Stephen would suffer detriment if returned to his mother, objector Julie B., and that an award of cus...
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40 Cal. App. 4th 1334 (1995) Conservatorship of the Person and Estate of ALBERTA V. IRVINE. CLAIRE M. FLETCHER, Petitioner and Respondent, v. CHILDREN'S HOSPITAL MEDICAL CENTER FOUNDATION, Objector and Appellant. Docket No. D022423. Court of Appeals of California, Fourth District, Division One. November 21, 1995. *1336 COUNSEL Bell, Rosenberg & Hughes, Robert Rosenberg and James C. Nelson for...
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Opinion Defendant Timothy Ingram appeals from a judgment of conviction after a jury found him guilty of two counts of residential burglary (Pen. Code, 1 §§ 459, 460) and the trial court found true allegations he had suffered two prior convictions for residential burglary and had served a prior prison term for possession of stolen property. Because of the two prior residential burglary convict...
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Opinion This case presents the issue of whether the retail transactions and use tax of one-tenth of 1 percent (popularly known as the “Arts to Zoo” tax) authorized by the Fresno Metropolitan Projects Act (Gov. Code, § 68056 et seq.) violates article XI, section 11, subdivision (a) of the California Constitution. The constitutional provision states: “The Legislature may not delegate to a p...
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72 F.3d 717 64 USLW 2463, 95 Cal. Daily Op. Serv. 9443,95 Daily Journal D.A.R. 16,435 UNITED STATES of America, Plaintiff-Appellee-Cross-Appellant,v.James Albert McCLELLAND, Defendant-Appellant-Cross-Appellee. Nos. 94-30385, 94-30423. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oct. 17, 1995.Decided Dec. 12, 1995. Kathleen A. Felton, United Sta...
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72 F.3d 740 64 USLW 2397, 105 Ed. Law Rep. 885,11 IER Cases 352,95 Cal. Daily Op. Serv. 9438,95 Daily Journal D.A.R. 16,440 UNITED STATES of America ex rel., Plaintiff,Harold R. FINE, Plaintiff-Appellant,v.CHEVRON, U.S.A., INC.; Bechtel Petroleum Operations, Inc.;and Williams Brothers Engineering Company,Defendants-Appellees.UNITED STATES of America ex rel., Plaintiff,Harold R. FINE, Plai...
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OPINION We must decide whether a sentence was properly amended to include a three-year general parole term and a consecutive three-year special parole term. I Materne pleaded guilty to manslaughter (9 Guam Code Ann. § 16.40) and possession and use of a deadly weapon in the commission of a felony (9 Guam Code Ann. § 80.37). On October 15, 1981, the Guam Superior Court orally sentenced Matern...
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OPINION The plaintiffs are beneficiaries of the Astoria Seafood Company Profit Sharing Plan (“the Plan”). They brought this action on behalf of the Plan, alleging that Darren Du-Pree and his co-defendants violated the Employee Retirement Income Security Act of 1974 (ERISA). According to the plaintiffs, DuPree, a chauffeur for the company’s owner, improperly received funds totalling $89,-000 from ...
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Opinion The parties call on us to decide two separate but related issues: (1) May a final judgment providing for periodic payments of future damages be amended at the request of the plaintiff to require a cash advance against future damages in the amount necessary to pay her attorney fees? (2) In determining the maximum attorney fees allowable under MICRA,1 how should the trial court calculate th...
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40 Cal.App.4th 1521 (1995) 48 Cal. Rptr.2d 325 THE PEOPLE, Plaintiff and Respondent, v. GILBERT ANTHONY KWOLEK, Defendant and Appellant. Docket No. H012939. Court of Appeals of California, Sixth District. December 12, 1995. *1524 COUNSEL Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorn...
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Opinion This case reaches us again after a penalty phase retrial following this court’s affirmance of defendant John Galen Davenport’s 1980 first degree murder conviction (Pen. Code, §§ 187, subd. (a), 189), 1 and torture-murder special-circumstance finding (§ 190.2, subd. (a)(18)), and reversal of his death sentence based on instructional error. In reversing the penalty phase, we concluded t...
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Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION Mr. Lorenzini, the defendant in this case, pleaded guilty to one count of bank fraud, 18 U.S.C. § 1344(2) and was sentenced to five years probation with the following conditions: (1) he serve six months home confinement; (2) he acknowledge responsibility for and pay $25,000 of restitution at $600 per m...
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ORDER At Appellant’s request, we remanded this matter on June 2, 1995, to the District Court of Guam, Territory of Guam, Appellate Division for the limited purpose of obtaining a ruling from that court on the question whether excusable neglect exists for the late filing of the notice of appeal. On September 6, 1995, the Appellate Division found that the failure to file a timely notice of appe...
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Opinion This appeal raises a difficult legal issue from the arcane world of insurance premium financing. When an insurance agent arranges a fraudulent insurance premium financing transaction for an insured which purports to be—but is not—authorized or ratified by the insured, is the risk of liability for the insured’s subsequent loss of premium borne by *1635 the insurer issu...
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Opinion Appellant Mansour Jahangiri, M.D., appeals from the denial of his petition for a writ of administrative mandamus following the revocation of his medical license by respondent Medical Board of California. In this case we are asked to determine whether, under Government Code section 11523, 1 payment for transcript preparation must occur at the same time the request to prepare the record...
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40 Cal.App.4th 1615 (1995) 47 Cal. Rptr.2d 749 THE PEOPLE, Plaintiff and Respondent, v. DARRELL ANTOINE HAMILTON, Defendant and Appellant. Docket No. B088802. Court of Appeals of California, Second District, Division Seven. December 13, 1995. *1616 COUNSEL Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and Appellant. *1617 Daniel E. Lungren, Attorney General, George William...
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Opinion A jury convicted appellant of attempted injury upon a cohabitant (Pen. Code1 §§ 664/273.5, subd. (a)), battery (§ 242), and assault (§ 240) and acquitted him of injury upon a cohabitant (§ 273.5, subd. (a)). In a bifurcated proceeding, the trial court found true three serious felony allegations (§ 667, subds. (b)-(i)): a 1986 attempted robbery conviction (§§664/211), a 1987 robbery convict...
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*1604 Opinion Kenneth Liebler (Liebler) appeals a judgment in favor of defendant Point Loma Tennis Club Community Corporation (PLTC), following a determination the PLTC declaration of covenants, conditions and restrictions did grant PLTC the authority to enact rules which exclude Liebler, a nonresident owner, from using the common area recreational facilities. Liebler conten...
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*1562 Opinion Defendant and appellant Nita Almuete Paddit Palma appeals from the judgment (order granting probation) entered following a jury trial in which she was convicted of six counts of receiving unlawful remuneration—Medi-Cal fraud, a violation of Welfare and Institutions Code section 14107.2, subdivision (a). This section prohibits the receipt of remuneration, including k...
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Opinion Plaintiffs brought this action for declaratory relief and to quiet title based on a forged reconveyance of a deed of trust on property purchased by defendants. The trial court awarded damages to the plaintiffs equivalent to the principal of the note secured by the trust deed and compound interest from the date of inception of the loan. Plaintiffs were also awarded attorney fees. D...
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Opinion Because the civil service commission acted well within its discretion in discharging Deputy Probation Officer Earl Cummings, Jr., for misusing his authority, violating confidential records, and lying to other governmental officials and his own superiors, we affirm the judgment. We also affirm the principles Justice Johnson expressed recently and well for this unanimous court: a deputy prob...
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Opinion I Introduction This case arises out of a dispute between partners in a joint venture to produce a failed television series entitled Catwalk. Kidron, 1 the originator of the concept, complained that his former partners Franklin/Waterman, 2 the producers of the series, stole his rights to Catwalk and ousted him from production of...
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Opinion Following the guilt phase of a jury trial, defendant James F. Horton II was convicted of one count of first degree murder (Pen. Code, §§ 187, 189)1 and one count of robbery (§ 211), and the jury found true the special circumstance allegations that the murder occurred in the course of a robbery (§ 190.2, subd. (a)(17)) and that defendant had suffered a prior murder conviction (§ 190.2, sub...
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Opinion In 1988, the voters approved Proposition 103, an initiative measure entitled the Insurance Rate Reduction and Reform Act. Among other provisions affecting certain types of insurance, Proposition 103 imposed a rate rollback and required that any subsequent rate increase, prior to its use, be approved by the Insurance Commissioner. Section 8(b) of Proposition 103 provides: “The provisions o...
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*1678 Opinion Terry H., a minor, 1 appeals his conviction of violating Health and Safety Code section 11680 2 (possession of an imitation controlled substance), challenging the application and constitutionality of such section. Facts On December 18, 1993, Riverside County Deputy Sheriff John Powers went to defendant’s home in response to a call regarding possible narcotics at that loc...
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*1668 Opinion In this appeal by the People of an alleged unauthorized sentence (Pen. Code, 1 § 1238, subd. (a)(10)), we conclude the trial court properly exercised its discretion under section 12022.5, subdivision (d) to stay execution of the additional term for Lamont Anthony Campbell’s admitted personal use of a firearm enhancement (§ 12022.5, subd. (a)) and affirm. Factual Summary In...
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Opinion This appeal raises various issues related to Penal Code 1 section 667, former subdivisions (b)-(j), commonly known as the “three strikes" legislation, 2 including several constitutional attacks. We will find that some of appellant’s attacks are moot in his case and we will reject all of appellant’s other contentions. Statement of Case Following a preliminary examination, defenda...
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Opinion After defendant Teddy Brian Sanchez waived his right to a jury trial at the guilt and special circumstances phases, and submitted the case for a court trial on the basis of the preliminary hearing transcripts, the trial court found him guilty of the first degree murders of Juan Bocanegra, Juanita Bocanegra, and Woodrow Wilson Tatman (Pen. Code, § 187; all statutory references are to the P...
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Dissent by Judge PREGERSON. This appeal presents two questions: (1) whether § 104(b)(4) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. § 1024(b)(4), requires a plan administrator to furnish individual participants upon request with the names and addresses of other plan participants. We hold that it does not because such a list is not an “instrumente ] unde...
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OPINION Appellees-creditors Thomas and Elisa Ma-taya sued appellant-debtor Michael Kissinger in state court for legal malpractice arising out of Kissinger’s representation of Thomas Mataya in connection with the death of Mata-ya’s son. Kissinger represented himself at trial. Following the presentation of evidence on liability and compensatory damages, the trial judge, sua sponte, granted a two ...
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Opinion I. Introduction and Background This appeal involves yet another insurance squabble in the tangle of litigation stemming from the demise of Technical Equities Corporation (TEC), a diversified investment services company that sought bankruptcy court protection in February 1986. Appellant is Employers Insurance of Wausau (Wausau), provider of second layer excess general liability insuran...
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Opinion Presently pending before this court is the appeal of Richard and Pamela C. from an order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26, subdivision (b)(1)1 over their daughter Mary C., bom September 30, 1992. The trial court, *74acting pursuant to section 317, subdivision (c), appointed counsel to represent the minor.2 Counsel appointed by the ...
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MEMORANDUM AND ORDER The State of California brings this CERCLA cost recovery action in an effort to recoup expenses it incurred cleaning up a contaminated lumber mill site in Trinity County. The State moves for summary judgment against each defendant on the grounds that there is no dispute of material fact as to liability under 42 U.S.C. § 9607. Defendants oppose the State’s motion a...
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72 F.3d 110 Terry F. NEWELL, Plaintiff-Appellee,v.Frank SAUSER; Lou Easter; Sharon Starr, Sgt.;Disciplinary Committee Chairperson; Tom Reimer, Sgt.;Robert Hartzler, Officer of the Spring Creek CorrectionalCenter; in their individual and official capacities,Defendants-Appellants. No. 94-35243. United States Court of Appeals,Ninth Circuit. Dec. 18, 1995. Before: WRIGH...
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ORDER Federal prisoner Paul Masuru Ono appeals pro se the district court’s denial of his motion under 18 U.S.C. § 3582(c)(2) to modify his term of imprisonment. The government contends that we lack jurisdiction over this appeal because the notice of appeal was filed more than ten days after the order was entered by the district court. See Fed. RApp.P. 4(b). In order to determine if an appea...
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72 F.3d 751 95 Cal. Daily Op. Serv. 9632, 95 Daily JournalD.A.R. 16,756UNITED STATES of America, Plaintiff-Appellee,v.Giovanni Fontes SCOLARI, Defendant-Appellant. No. 94-50223. United States Court of Appeals,Ninth Circuit. Argued Oct. 19, 1995.Decided Dec. 18, 1995. William V. Gallo, Assistant United States Attorney, San Diego, California, for plaintiff-appellee. ...
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Opinion On our own motion, we review an order of the State Bar Court publicly reproving John Michael Brown, an attorney admitted to practice in this state. The public reproval is based on Brown’s conviction of three misdemeanor counts of failure to remit to the state certain funds withheld from the wages of his law corporation’s employees (Unemp. Ins. Code, §2118). The conduct underlying ...
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*90 Opinion this case, we must determine the validity of an order, issued by the California Public Utilities Commission (Commission) in January 1995, directing the disposition of funds (then exceeding $50 million) that had been deposited by Pacific Telesis into a designated account pursuant to a November 1993 order of the Commission. In the latter decision, the Commission found t...
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Opinion In a criminal trial, it is ordinarily the trial court’s duty to instruct the jury not only on the crime with which the defendant is charged, but also on any lesser offense that is both included in the offense charged and shown by the evidence to have been committed. Here, defendant was charged with murder. At trial, the parties presented evidence from which the jury could rea...
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Opinion Government Code section 23004.1 1 gives a county a first lien for the cost of medical care it has provided to an injured person against any judgment that person recovers from a third person who is responsible for the injury. The issue in this case is whether that lien is subject to equitable reduction for a portion of the attorney fees incurred by the injured party in r...
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Opinion Juan Zuniga and his extended family were residents of the Jordan Downs public housing project in the City of Los Angeles, which was operated by the Housing Authority of the City of Los Angeles (the Authority). After a fire set by arsonists killed five members of the family, the surviving members (appellants) filed a lawsuit against the Authority and the *90City of Los Angeles (the City) f...
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72 F.3d 754 151 L.R.R.M. (BNA) 2134, 64 USLW 2419,28 Bankr.Ct.Dec. 394,Bankr. L. Rep. P 76,733,95 Cal. Daily Op. Serv. 9658,95 Daily Journal D.A.R. 16,806 John L. DEAN, Plaintiff-Appellant,v.TRANS WORLD AIRLINES, INC.; Air Line Pilots Association,International, Defendants-Appellees. Nos. 92-35470, 92-35537. United States Court of Appeals,Ninth Circuit. Argued and Submitted Oc...
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ORDER The opinion filed April 20, 1995, and published at 54 F.3d 549 (9th Cir.1995) is withdrawn. It is replaced by the opinion and dissent filed concurrently with’ this order. OPINION These appeals arise from the efforts of Katie John, Doris Charles and the other *700upper Ahtna Athabaskan Indians of Mentas-ta Village to continue subsistence fishing at Batzulnetas as they and their ancestors hav...
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ORDER In view of the California Attorney General’s recognition of the complexity of death penalty cases and of the fact that such cases require far more time to prepare than does the ordinary case, respondents’ request for an extension of time until February 16, 1996, in which to file its brief, is granted. Respon *110 dents’ request to increase the page limit for its brief to 90 pages is als...
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Lung Van Nguyen appeals his conviction for bringing aliens into the United States at a location other than a designated port of entry, in violation of 8 U.S.C. § 1324(a)(1)(A). We have jurisdiction, and we reverse because *889 the district court failed to instruct the jury regarding an essential element of the offense. I Nguyen’s arrest resulted from a federal investigati...
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Opinion An insurer failed to provide a defense to its insured for a potentially covered claim. The insured then settled the suit by agreeing to dismiss a counterclaim in exchange for a dismissal of the original suit. This case raises the issue of whether the loss of a chose in action is a contractual loss under the policy issued to the insured. The trial court entered judgment for defenda...
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Opinion I. ISSUES The questions raised by this appeal are whether: 1) an unrecorded deed of trust on real property creates a security interest under California law in the proceeds from the sale of the subject real property; 2) debtors’ actions in selling property subject to an unrecorded deed of trust and using the proceeds to purchase other property gave rise to a nond...
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72 F.3d 757 64 USLW 2463, 95 Cal. Daily Op. Serv. 9700,95 Daily Journal D.A.R. 16,841 In re Audrey E. NOBLIT, Debtor.James FOX, Successor Trustee, Plaintiff-Appellee,v.Arlan SMOKER, husband and Donna Smoker, wife, Defendants-Appellants. No. 94-16062. United States Court of Appeals,Ninth Circuit. Submitted Nov. 15, 1995.*Decided Dec. 20, 1995. Allan D. NewDelman, Phoe...
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OPINION I. FACTS On August 23, 1989, the debtor, Jordan H. Chappel (“Chappel” or “debtor”), filed for bankruptcy relief under chapter ll. 1 On August 19,1989, four (4) days before the debtor filed his petition, the debtor’s mother, Nadine M. Hunter (“Hunter” or “testatrix”) died. At the time of her death, Hunter was a resident of California and the assets in her estat...
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Opinion Petitioner Carolyn R. seeks extraordinary writ review (Welf. & Inst. Code 1 , § 366.26, subd. (7); Cal. Rules of Court, rule 39.IB) from respondent court’s order that a section 366.26 hearing be held February 20, 1996. She challenges the court’s refusal to grant her 12 additional *162 months of reunification services after it sustained a supplemental petiti...
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Opinion Plaintiff Joe Abandonato appeals a postjudgment order persona, $4,500 in attorney fees pursuant to Code of Civil Procedure section 128.5. We affirm. *266I In February 1992, Robert Kayyem filed a complaint for declaratory relief against Abandónate to determine the enforceability of a $525,000 promissory note purportedly written in 1982. Kayyem alleged no such note was ever made and he did ...
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*172 Opinion Mayme I. Hagen died in 1991, at the age of 96. Her two grandchildren, Michael and Amy Hagen, were her only surviving issue; her only child, John Hagen (the grandchildren’s father) had died in 1980. In 1988 the decedent had executed a revocable living trust, supplemented by a pour-over will, which gave almost all of her property to her cousin, Terry Hickenbottom, upon...
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Opinion This case presents the sometimes knotty question of the proper application of the “shifting burdens of proof” applicable to employment discrimination cases as first set forth in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 [36 L.Ed.2d 668, 93 S.Ct. 1817] (hereafter, McDonnell Douglas). Due to the confusion which is attendant to application ...
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*226 Opinion Glennell Witcher (appellant) was charged by information with two counts of petty theft with a prior conviction. (Pen. Code, 1 § 666.) Two separate priors were charged in connection with the section 666 counts—a 1987 second degree robbery conviction and a 1990 second degree burglary conviction. 2 The 1987 robbery conviction was also alleged as a ...
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Opinion In the entertainment industry, talent agents and personal managers perform valuable services for their clients. Talent agents, *250 who seek to procure employment for artists, must be licensed under the Talent Agencies Act (Lab. Code, §§ 1700-1700.47). In contrast, personal managers, who advise and direct artists in the development of their careers, are not subject to...
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Opinion Defendants and appellants City of Vernon (Vernon) and Victor H. Vaits, Vernon’s director of community services (Vaits) (sometimes collectively referred to as Vernon), appeal a judgment granting a petition for writ of mandate sought by plaintiff and respondent Southern California Gas Company (the Gas Company). The essential issue presented is whether Vernon can purport to regu...
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Opinion Plaintiffs and appellants Jerri Lynn Smith and Adrian Paul Faskas appeal from a summary judgment entered in favor of defendant and respondent Premier Alliance Insurance Company (Premier). In the published portion of this opinion, we conclude a defendant in a wrongful death action owes no duty to nonsettling heirs not to settle with only one of the heirs. In the unpublished portion...
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Opinion Gilbert John Anderson, Jr., as trustee of the Margaret K. Anderson Trust, appeals from the dismissal of his action against his brother, Nolan Anderson, as executor of the estate of their father, Gilbert J. Anderson, Sr. (Anderson Sr.) and as trustee of the Anderson Sr. living trust, *137 following the trial court’s sustaining respondent’s demurrer on statute of limita...
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OPINION OVERVIEW The Chapter 7 1 trustee (“the trustee”) has appealed summary judgment in favor of Southern California Bank (“the bank”). The bank had obtained a temporary lien on the personal property of Reuben and Maureen Hilde (“the debtors”) by serving subpoenas upon them to attend judgment debtors’ examinations. See Cal.Civ.Proc.Code § 708.110 (West 198...
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*128Opinion When a prior felony conviction is used against a defendant to establish the ex-felon element of a charge under section 12021 of the Penal Code1 (possession of a firearm by an ex-felon), may the prison term resulting from that prior conviction be used to enhance the defendant’s sentence under section 667.5, subdivision (b) (section 667.5(b))? The Court of Appeal below concluded that Pe...
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12 Cal.4th 145 (1995) 906 P.2d 1232 48 Cal. Rptr.2d 77 THE PEOPLE, Plaintiff and Respondent, v. ANTONIO CORONADO, Defendant and Appellant. Docket No. S043032. Supreme Court of California. December 21, 1995. *148 COUNSEL Matthew Alger, under appointment by the Supreme Court, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Rober...
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Like the majority, I agree with the findings of misconduct made by the Commission on Judicial Performance (Commission). I nonetheless believe this misconduct is not serious enough to warrant public censure. I therefore concur in rejecting the Commission’s disciplinary recommendation. Unlike the majority, however, I take the 1987 “offensive remark” incident into account when reaching my conclusion ...
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12 Cal.4th 315 (1995) 906 P.2d 1242 48 Cal. Rptr.2d 87 RAYMOND L. BROSTERHOUS et al., Plaintiffs and Appellants, v. THE STATE BAR OF CALIFORNIA et al., Defendants and Respondents. Docket No. S043692. Supreme Court of California. December 21, 1995. *318 COUNSEL Ronald A. Zumbrun, Anthony T. Caso and Deborah J. La Fetra for Plaintiffs and Appellants. Diane C. Yu, Lawrence C. Yee, Starr Babcock, Ric...
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Opinion A jury convicted appellant of one count of robbery (Pen. Code, § 211) 1 (count 1) and one count of attempted murder (§§ 187, subd. (a), 664) (count 2). With respect to the robbery count, an allegation that appellant personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)) was found to be true. With respect to the attempted murder count, allegations that appell...
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Opinion Pacific Inland Bank (PIB) appeals from a judgment granting Charles Ainsworth and Ainsworth Appraisal Services’ (Ainsworth) motion for summary judgment and dismissal of its complaint. The court concluded the full credit bid rule barred PIB from maintaining a negligence action against Ainsworth, a third party nonborrower. We agree and affirm. I Santiago Investors, wishing ...
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Opinion Jimmy D. appeals from the order of the superior court declaring his daughter, Dolly D., a dependent child of the juvenile court and taking custody from him. We find that the court’s decision to decide the case based only on the social worker’s report, and refusing the request of appellant’s attorney to cross-examine, denied appellant his right of confrontation. For this reason, we...
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*450 Opinion Jose Louis Demara appeals a judgment convicting him of three counts of unlawfully taking or driving a vehicle (Veh. Code, § 10851, subd. (a)) and three counts of unlawfully receiving stolen property (Pen. Code, 1 § 496, subd. (a)). On appeal, Demara contends the court erred by: (1) denying his request for new counsel without conducting a proper hearing; (2...
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Opinion In this case the plaintiff employees made preparations to establish a competing business. The central issue on appeal is whether the defendant employer had good cause to terminate the employment of plaintiffs under the circumstances. We hold that it did. Plaintiffs Kenneth E. Stokes and Harley G. Embrey appeal from a summary judgment entered in favor of defendant Dole Nut Com...
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*300 Opinion I. Introduction In this case we hold that California’s minimum wage laws are not unconstitutional as applied to an organization whose purpose is political advocacy, because the compelling state interest in ensuring a minimum wage adequate to maintain a decent standard of living justifies any incidental infringement on the organization’s First Amendment freedoms. II. Backgroun...
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72 F.3d 759 95 Cal. Daily Op. Serv. 9769, 95 Daily JournalD.A.R. 17,019UNITED STATES of America, Plaintiff-Appellee,v.Gene CAMP, Victor Camp, Todd Oatman, Defendants-Appellants. Nos. 94-30292, 94-30303 and 94-30304. United States Court of Appeals,Ninth Circuit. Submitted* June 6, 1995.Decided Dec. 22, 1995. Michael Donahoe, Assistant Federal Public Defender, Helena, Mont...
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This appeal requires us to consider the scope of a district court’s discretion to reduce the lodestar in a civil rights action for the time devoted to dismissed claims that the court found unrelated to a successful claim. We must also decide whether a reasonable attorney’s fee under 42 U.S.C. § 2000e-5(k) must be calculated by reference to the rates generally charged by attorneys in the area wh...
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Opinion Petitioners United Farm Workers of America, AFL-CIO (the UFW) and interveners Father Joseph Tobin (Father Tobin), Mytyl Glomboske (Glomboske) and Rudolph N. Rico (Rico) (collectively, interveners) seek review of a decision by respondent Agricultural Labor Relations Board (ALRB) finding the UFW had violated Labor Code section 1154, subdivision (d), by conducting an illegal secondar...
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Opinion We reject Michael Angel Plaza’s claims of evidentiary, instructional and sentencing error and affirm his conviction of five sex offenses. Facts Plaza and Elizabeth W. had a sexually intimate relationship for about nine months. About a week after the relationship ended, Elizabeth returned home to find several abusive messages from Plaza on her answering machine. Later tha...
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Opinion Defendant and appellant Markee Carter appeals from a judgment following a jury trial in which he was convicted of the premeditated attempted murders of three victims on a single occasion and of being an ex-felon in possession of a firearm. He admitted a single prior serious felony conviction within the meaning of Penal Code 1 sections 667, subdivision (a) and subdivisions (b) through ...
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Appellants Morris Herring et al. (“the shareholders”) appeal the summary judgment in favor of the Federal Deposit Insurance Corporation (“FDIC”) in their independent action to set aside a state-court judgment for fraud on the court. We affirm. I. Factual and Procedural Background In September 1981, the Arizona Superintendent of Banks placed Southwestern Bank (“Southwestern”) in receivership. On Ma...
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12 Cal.4th 278 (1995) 906 P.2d 1306 48 Cal. Rptr.2d 151 CHARLES HALE LARSEN, Plaintiff and Appellant, v. DEPARTMENT OF MOTOR VEHICLES, Defendant and Respondent. Docket No. S040219. Supreme Court of California. December 26, 1995. *280 COUNSEL Michael R. McDonnell, David Joseph Macher and Jeffrey D. Kent for Plaintiff and Appellant. Daniel E. Lungren, Attorney General, Robert L. Mukai, Chief Assist...
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12 Cal.4th 226 (1995) 906 P.2d 1275 48 Cal. Rptr.2d 120 In re BRYCE C., a Minor. VERNON S., Petitioner and Appellant, v. JEROME C., Objector and Respondent. Docket No. S040932. Supreme Court of California. December 26, 1995. *228 COUNSEL H. Dennis Beaver and Ronald P. Kaplan for Petitioner and Appellant. Bradley A. Bristow, under appointment by the Supreme Court, for Objector and Respondent. No a...
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I dissent. The majority holds that, as a matter of law, a hospital employee was not acting within the scope of his employment when he sexually molested a pregnant woman while purportedly conducting an ultrasound examination necessitating that he have physical contact with intimate areas of the woman’s body. I disagree. Scope of employment in this case, as in most cases, is a question of fact to be...
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Opinion In People v. Gould (1960) 54 Cal.2d 621 [7 Cal.Rptr. 273, 354 P.2d 865] (hereafter Gould), this court held that a testifying witness’s out-of-court identification “that cannot be confirmed by an identification [of the defendant] at the trial is insufficient to sustain a conviction in the absence of other evidence tending to connect the defendant with the crime.” (Id. at p. 631.)...
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*740 Opinion Plaintiff, Doina D. Filipescu, appeals from a judgment entered after demurrers were sustained without leave to amend to her second amended complaint for wrongful termination. Defendant, California Housing Finance Agency, has moved to dismiss the appeal as untimely. The dismissal motion is granted. The demurrers were sustained without leave to amend on June 19, 1995. On June 30,...
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Opinion Plaintiff Dr. Jon Stenseth filed the instant action against defendant Wells Fargo Bank for allowing plaintiff’s employee to cash insurance checks on his forged endorsement. The jury found in favor of plaintiff. 1 On appeal defendant raises issues relating to the admissibility and sufficiency of the evidence. Plaintiff has filed a cross-appeal and contends the trial court erred by excl...
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Opinion Catherine Jenae Tussy-Garber (Tussy-Garber) allegedly pricked her finger on a hypodermic needle in the pocket of a jacket that had been returned to Macy’s California, Inc. (Macy’s), by another customer. Tussy-Garber is now suing Macy’s for negligence, asserting a right to emotional distress damages because she fears contracting acquired immune deficiency syndrome (AIDS) 1 ...
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Opinion The defendant, Joseph James Bogle, murdered Tom and Joan Bromley, then set fire to their house and shot himself in the head to cover up the murders. The defendant had lived with the victims and labored around the house in exchange for boarding. *775 During the trial, the prosecution presented evidence that the Bromleys’ safe, which contained personal items belonging ...
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Appellant Sheila Conkle (“Conkle”) appeals the summary judgment for defendants in her action against her former employers and union for breach of § 301 of the Labor Management Relations Act, 29 U.S.C. § 185, for slander, and for intentional interference with prospective economic advantage. We affirm. I. Factual and Procedural Background Conkle began working at Laird’s Market (“Laird’s...
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72 F.3d 770 95 Cal. Daily Op. Serv. 9866, 95 Daily JournalD.A.R. 17,153UNITED STATES of America, Plaintiff-Appellee,v.Rafael VALENCIA-ANDRADE, Defendant-Appellant. No. 95-50093. United States Court of Appeals,Ninth Circuit. Submitted Dec. 14, 1995.*Decided Dec. 27, 1995. Michael L. Crowley, San Diego, California, for defendant-appellant. Mary A. Schneider, Assistan...
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Thomas Michael McCormick and Tracy L. McCormick appeal their convictions for a number of offenses arising out of the creation and use of the identity “Michael Parris Boner”. A jury convicted both of the McCor-micks of bankruptcy fraud, in violation of 18 U.S.C. § 152. Thomas alone was convicted of: (1) fraudulent use of a social security number, in violation of 42 U.S.C. § 408(g)(1); (2) use of a ...
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Ernesto Isidro Pablo, a native and citizen of the Philippines, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his application for a waiver of deportation. The BIA concluded that Pablo’s equities failed to outweigh the adverse nature of his multiple criminal convictions. We deny review. I Pablo entered t...
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72 F.3d 1396 64 USLW 2410, 19 Employee Benefits Cas. 2494,95 Cal. Daily Op. Serv. 9859,95 Daily Journal D.A.R. 17,163,Pens. Plan Guide P 23915O PILKINGTON PLC; Pilkington Visioncare, Inc.; PilkingtonVisioncare Pension Plan, Plaintiffs-Appellants,v.Ronald O. PERELMAN; Howard Gittis; Jewel S. LaFontant;Bruce Slovin; Fred R. Sullivan; Pierre A.Rinfret; Revlon, Inc., Defendants-Appellee...
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72 F.3d 767 95 Cal. Daily Op. Serv. 9858, 95 Daily JournalD.A.R. 17,169PEOPLE of the TERRITORY OF GUAM, Plaintiff-Appellee,v.Edward R.C. DELA PENA, Defendant-Appellant. No. 94-10504. United States Court of Appeals,Ninth Circuit. Submitted Nov. 8, 1995.*Decided Dec. 27, 1995. William C. Bischoff, Agana, Guam, for defendant-appellant. Richard Parker Arens, Assistant ...
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We affirm the judgment of the district court dismissing with prejudice plaintiff’s spurious civil RICO claim against the defendants, and imposing sanctions against plaintiffs attorney, Henry M. Steinberg.1 The relevant facts as explained in the district court’s well-reasoned opinion, Burnette v. Godshall, 828 F.Supp. 1439 (N.D.Cal.1993), are as follows: Velma Burnette brought this action in Califo...
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Opinion I Introduction This is the second time Dennis Ray Howie (Howie) has appeared before this court. The first time he requested we prevent the relitigation of the constitutional validity of a prior conviction, and we did. This time he *732 requests we enforce the appellate court’s prior ruling, and we will. In this case, we decide the trial court is estopped from using a constitutiona...
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Opinion Here we hold that, when a qualified injured worker signs a compromise and release which states he is not interested in receiving vocational rehabilitation services and which also states that the agreement *762 does not release any claim to rehabilitation benefits, the Workers’ Compensation Appeals Board is not required to make a finding pursuant to California Code of ...
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72 F.3d 775 Jackson Chambers DANIELS, Jr., Petitioner,v.UNITED STATES DISTRICT COURT FOR the CENTRAL DISTRICT OFCALIFORNIA, Respondent.Arthur Calderon, Warden, San Quentin State Prison; theAttorney General of the State of California, RealParties in Interest. No. 94-70295. United States Court of Appeals,Ninth Circuit. Dec. 28, 1995. Before: FERGUSON, NORRIS, and TROTT, ...
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*534 Opinion In this prosecution for driving while under the influence of alcohol, the parties agree that the arrest was violative of Penal Code section 836, subdivision (a)(1) which requires that a warrantless arrest for a misdemeanor be committed in the presence of the arresting officer. The parties also agree that the judicially created exclusionary rule mandating that evidence obtained in...
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