U.S. Ninth Circuit: October 2009 News
U.S. Ninth Circuit - The FindLaw 9th Circuit Court of Appeals Opinion Summaries Blog

9th Circuit October 2009 News

Medical Dev. Int'l. v. Cal. Dept. of Corr., No. 08-15759

In an action to recover payment for medical care provided to prisoners, the removal of the action to the district court is affirmed where the suit was against a federally-appointed receiver and the district court thus had clear jurisdiction over the matter.  However, the order dismissing the action is vacated where: 1) plaintiff was not required to obtain permission from the district court to sue defendant-receiver because the action fit within the statutory exception to the general rule requiring an appointing court's permission before suing a receiver in another jurisdiction; and 2) the receiver was not absolutely immune from suit.

Read Medical Dev. Int'l. v. Cal. Dept. of Corr., No. 08-15759

Appellate Information

Argued and Submitted July 16, 2009

Filed October 30, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Bennett J. Lee and Garrett E. Dillon, Watt, Tieder, Hoffar & Fitzgerald, LLP, San Francisco, CA

For Appellee:

Michelle M. Mitchell, Deputy Attorney General, Sacramento, CA

Martin H. Dodd, Futterman & Dupree LLP, San Francisco, CA

Gonzalez v. Brown, No. 07-56107

In a drug possession prosecution, denial of petitioner's habeas petition is affirmed where, in view of the relatively low number of peremptory challenges that the prosecutor exercised against African-American jurors, the prosecutor's ability to justify her other peremptory challenges with specificity and to the state court trial judge's satisfaction, as well as the fact that two African-American jurors remained on the jury and a third was a prospective juror, the state court of appeal's denial of petitioner's Batson claim was not contrary to Supreme Court precedent or an objectively unreasonable application of such precedent.

Read Gonzalez v. Brown, No. 07-56107

Appellate Information

Argued and Submitted August 31, 2009

Filed October 30, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Shawn R. Perez, Law Offices of Shawn R. Perez, Las Vegas, NV

For Appellees:

David F. Glassman, Office of the Attorney General of California, Los Angeles, CA

US v. Moriel-Luna, No. 08-50124

In defendant's appeal from a denial of his motion to dismiss his indictment for illegal reentry into the U.S. by a deported alien, the district court's order is affirmed where: 1) an Immigration Judge (IJ) is not required to act creatively to advise an immigrant of ways in which his legal prospects at forestalling deportation might improve with fundamental changes in his status; 2) the IJ's failure to inform defendant of his section 212(c) options did not prejudice him because he was not entitled to a section 212(c) waiver due to his commission of an aggravated felony; and 3) the IJ was not obligated to grant indefinite continuances if defendant did not produce counsel but refused to waive his right to counsel.

Read US v. Moriel-Luna, No. 08-50124

Appellate Information

Argued and Submitted August 31, 2009

Filed October 29, 2009

Judges

Opinion by Judge Gould

Counsel

For Appellant:

Douglas F. McCormick, Michael J. Raphael, Office of the U.S. Attorney, Santa Ana, CA

For Appellee:

Jonathan D. Libby, Federal Public Defender's Office, Los Angeles, CA

Standard Ins. Co. v. Morrison, No. 08-35246

In an action claiming that a state's practice of disapproving insurance policies with clauses vesting discretion in insurers violated the Employee Retirement Income Security Act (ERISA), summary judgment for defendant-state insurance commissioner is affirmed where: 1) the state's bar on discretionary clauses addresses an insurance-specific problem, because discretionary clauses generally do not exist outside of insurance plans; and 2) the commissioner's practice merely alters the terms by which the presence or absence of the insured contingency is determined; and 3) thus, the state regulatory scheme was saved from preemption under 29 U.S.C. section 1144(a) by the savings clause in section 1144(b).

Read Standard Ins. Co. v. Morrison, No. 08-35246

Appellate Information

Argued and Submitted June 3, 2009

Filed October 27, 2009

Judges

Opinion by Judge O'Scannlain

Counsel

For Appellant:

Meir Feder, Phineas E. Leahey, Shawn Hanson, Katherine Ritchey, Jones Day, LLP, New York, NY

For Appellee:

James G. Hunt, Hunt Law Firm, Helena, MT

Laster v. AT&T Mobility LLC, No. 08-56394

In a class action claiming that a telephone company's offer of a "free" phone to anyone who signed up for its service was fraudulent to the extent the phone company charged the new subscriber sales tax on the retail value of each "free" phone, denial of defendant's motion to compel arbitration is affirmed where an arbitration clause's "premium" payment in the event of an arbitral award in favor of a customer did not prevent the clause from being unenforceable under California law.

Read Laster v. AT&T Mobility LLC, No. 08-56394

Appellate Information

Argued and Submitted September 17, 2009

Filed October 27, 2009

Judges

Opinion by Judge Bea

Counsel

For Appellants:

Donald M. Falk, Mayer Brown LLP, Palo Alto, CA

For Appellees:

Kirk B. Hulett, Hulett Harper Stewart LLP, San Diego, CA

California Energy Comm'n v. Dept. of Energy, No. 07-71576

In a petition for review of an order of the U.S. Department of Energy (DOE) denying petitioner's request for a waiver of preemption under the Energy Policy and Conservation Act, the petition is granted where the DOE's stated justifications demonstrated an arbitrary and capricious failure meaningfully to address petitioner's application for a waiver.

Read California Energy Comm'n v. Dept. of Energy, No. 07-71576

Appellate Information

Argued and Submitted November 17, 2008

Filed October 28, 2009

Judges

Opinion by Judge Canby

Counsel

For Petitioner:

Jonathan Blees, Assistant Chief Counsel, California Department of Energy, Sacramento, CA

For Respondent:

H. Thomas Byron, III, Civil Division, U.S. Department of Justice, Washington, DC

Westchester Fire Ins. Co. v. Mendez, No. 07-17383

In an action by an insurer seeking a declaration that it had no obligation to defend or indemnify defendant against a certain claim because he failed to give proper notice of the claim to insurer, default judgment for plaintiffs is reversed where intervenor-Northwest Airlines should have been permitted to defend the declaratory relief action on its own.

Read Westchester Fire Ins. Co. v. Mendez, No. 07-17383

Appellate Information

Argued and Submitted April 17, 2009

Filed October 28, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Jeffrey A. Eyers and Jeffrey A. Ehrich, Leonard Street and Deinard, Minneapolis, MN

For Appellee:

Erin Fury Parkinson and Margaret Diamond, McGlinchey Stafford, New Orleans, LA

Brodheim v. Cry, No. 07-17081

In a prisoner's action claiming that an official violated his First Amendment right to petition the government for redress of grievances, summary judgment for defendants is reversed where there were genuine issues of material fact as to the existence of an adverse action against plaintiff, the causation for the adverse action, the chilling of plaintiff's rights, and the relationship of any action to a legitimate correctional goal.

Read Brodheim v. Cry, No. 07-17081

Appellate Information

Argued and Submitted September 16, 2009

Filed October 28, 2009

Judges

Opinion by Judge Larson

Counsel

For Appellant:

Joseph David Elford, Americans for Safe Access, Oakland, CA

For Appellee:

Kelli Hammond, Office of the California Attorney General, Sacramento, CA

US v. Kilbride, No. 07-10528

In a prosecution arising from defendants' conduct relating to their business of sending unsolicited email, or spam, advertising adult websites, defendants' electronic mail fraud convictions and sentences are affirmed where: 1) no authority supported defendants' notion that a district court must provide a clear geographic definition of the relevant community in an obscenity prosecution; 2) a national community standard must be applied in regulating obscene speech on the Internet, but the district court's failure to instruct on this standard was not plain error; 3) defendants' as-applied vagueness challenge to the CAN-SPAM Act failed even applying a heightened requirement of clarity; and 4) the district court properly concluded that one defendant's related lawsuit was meritless and amounted to obstruction of justice.

Read US v. Kilbride, No. 07-10528

Appellate Information

Argued and Submitted June 8, 2009

Filed October 28, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellants:

Gary Jay Kaufman, Dana Milmeister, and Colin Hardacre, The Kaufman Law Group

For Appellee:

Jill Trumbull-Harris and Bonnie L. Kane, United States Department of Justice, Washington, DC

Siracusano v. Matrixx Initiatives, Inc., No. 06-15677

In a securities fraud action alleging that defendant failed to disclose material information regarding its cold remedy drug, Zicam, dismissal of the complaint is reversed where: 1) in relying on the statistical significance standard to determine materiality, the district court made a decision that should have been left to the trier of fact; and 2) the inference that defendants withheld information intentionally or with deliberate recklessness was at least as compelling as the inference that they withheld the information innocently.

Read Siracusano v. Matrixx Initiatives, Inc., No. 06-15677

Appellate Information

Argued and Submitted June 9, 2009

Filed October 28, 2009

Judges

Opinion by Judge Tashima

Counsel

For Appellant:

Joseph D. Daley, Coughlin Stoia Geller Rudman & Robbins LLP, San Diego, CA

For Appellees:

Michael G. Yoder, O'Melveny & Myers LLP, Newport Beach, CA

Stormans, Inc. v. Selecky, No. 07-36039

In a First Amendment action seeking to require pharmacies to deliver lawfully prescribed FDA-approved medications and prohibit discrimination against patients, a preliminary injunction in favor of plaintiffs is reversed where the district court incorrectly applied a heightened level of scrutiny to a neutral law of general applicability, and the injunction was overbroad. (Superseding opinion)

Read Stormans, Inc. v. Selecky, No. 07-36039

Appellate Information

Argued and Submitted July 8, 2008

Filed October 28, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Appellants:

Alan D. Copsey, Assistant Attorney General, Olympia, WA

Rima J. Alaily, Seattle, WA

For Appellees:

Kristen K. Waggoner, Seattle, WA

US v. Rivera-Alonzo, No. 08-10081

Defendant's conviction and sentence for assaulting a federal officer with a dangerous weapon is affirmed where: 1) a district court does not abuse its discretion in refusing to give an instruction on a lesser included offense, where, as here, a rational jury could not have convicted the defendant of the lesser-included offense without finding the element that would convert the lesser offense into the greater offense; and 2) the district court did not commit clear error in finding on sentencing that defendant's conduct was motivated by the victim's official status.

Read US v. Rivera-Alonzo, No. 08-10081

Appellate Information

Argued and Submitted February 9, 2009

Filed October 26, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Alex D. Gonzalez, Gonzalez & Smith, PC, Chandler, AZ

For Appellee:

Karla H. Delord, Assistant United States Attorney for the District of Arizona, Phoenix, AZ

Barker v. Riverside County Office of Educ., No. 07-56313

In an action alleging a teacher's constructive termination arising out of plaintiff's complaints regarding the treatment of disabled students, dismissal of the complaint for lack of standing is reversed where the broad statutory language in section 504 of the Rehabilitation Act and its corresponding anti-retaliation provision in Title VI of the Civil Rights Act did not demonstrate that Congress intended to limit standing under section 504 to only those with disabilities.

Read Barker v. Riverside County Office of Educ., No. 07-56313

Appellate Information

Argued and Submitted December 12, 2008

Filed October 23, 2009

Judges

Opinion by Judge Pregerson

Counsel

For Appellant:

Janice S. Cleveland, Law Offices of Janice S. Cleveland, Riverside, CA

Gary S. Bennett, Law Offices of Gary S. Bennett, Laguna Hills, CA

For Appellee:

Jennifer D. Cantrell and Mark W. Thompson, Atkinson, Andelson, Loya, Ruud & Romo, Riverside, CA

Parth v. Pomona Valley Hosp. Med. Ctr., No. 08-55022

In an action alleging that defendant's use of different base hourly rates violated the Fair Labor Standards Act (FLSA) by denying unionized employees overtime pay, summary judgment for defendant is affirmed where, when an employer changes its shift schedule to accommodate its employees' scheduling desires, the mere fact that pay rates changed, between the old and new scheduling schemes in an attempt to keep overall pay revenue-neutral, does not establish a violation of the FLSA's overtime pay requirements.

Read Parth v. Pomona Valley Hosp. Med. Ctr., No. 08-55022

Appellate Information

Argued and Submitted March 9, 2009

Filed October 22, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Frank J. Coughlin, Santa Ana, CA

For Appellee:

Douglas R. Hart and Beth Anne Scheel, Los Angeles, CA

US v. Van Alstyne, No. 07-50105

Defendant's mail fraud and money laundering convictions are affirmed in part where returning certain victims' investment in defendant's scheme was intended to "promote the carrying on," of the "scheme" at the heart of the mail fraud counts, by discouraging detection of that scheme.  However, they are reversed in part where another transaction that fully refunded one investor's outlay could not be regarded as a crucial element of the "scheme to defraud."  Defendant's sentence is vacated where the district court erred in calculating the enhancement to the money laundering sentence under U.S.S.G. section 2S1.1, in determining defendant's fraud offense level under U.S.S.G. section 2F1.1(b)(1), and in imposing the restitution requirement.

Read US v. Van Alstyne, No. 07-50105

Appellate Information

Argued and Submitted March 9, 2009

Filed October 22, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellant:

James H. Locklin, Sean K. Kennedy, Los Angeles, CA

For Appellee:

Douglas F. McCormick, Thomas P. O'Brien, Robb C. Adkins, Santa Ana, CA

Lone Star Sec. & Video, Inc. v. Los Angeles, No. 07-56521

In a 42 U.S.C. section 1983 action alleging the improper towing of plaintiff's vehicles under an ordinance that plaintiff contended was preempted by the California Vehicle Code, partial summary judgment for defendant is affirmed in part where due process did not require the city to provide advance notice each time it towed one of plaintiff's trailers.  Partial summary judgment for plaintiff is reversed in part where: 1) plaintiff could not plausibly assert a substantive due process violation; and 2) plaintiff could not make out a colorable procedural due process claim simply by asserting that the ordinance contravened state law.  (Superseding opinion)

Read Lone Star Sec. & Video, Inc. v. Los Angeles, No. 07-56521

Appellate Information

Argued and Submitted May 7, 2009

Order and Opinion Filed October 21, 2009

Judges

Opinion by Judge Fisher

Counsel

For Appellant:

George M. Wallace, Wallace, Brown & Schwartz, Pasadena, CA

For Appellee:

Rockard J. Delgadillo, Laurie Rittenberg, Michael D. Nagle, Deputy City Attorneys, Los Angeles, CA

In defendants' appeal from the district court's dismissal of their counterclaim and the district court's award of quantum meruit compensation subsequent to a bench trial, judgment for plaintiffs is affirmed in part where: 1) defendants' counterclaims were based on privileged attorney-client communications; and 2) the agreement allegedly breached by plaintiffs did not require that any and all communications with the client regarding costs include both attorneys.  However, the order is vacated in part where the district court clearly erred in failing to account for the value of the attorney referral at issue.

Read Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, No. 07-16191

Appellate Information

Argued and Submitted April 16, 2009

Submission Withdrawn April 27, 2009

Filed October 21, 2009

Judges

Opinion by Judge Nelson

Counsel

For Appellants:

Mark A. Hutchison, Scott A. Flinders and Michael K. Wall, Hutchison & Steffen, LLC, Las Vegas, NV

For Appellees:

Joice B. Bass, Lewis & Roca, LLP, Las Vegas, NV

Samuel S. Lionel, Lionel Sawyer & Collins, Las Vegas, NV

US v. Todd, No. 08-30360

Defendant's sex trafficking convictions are affirmed where the government's evidence showed that defendant had the necessary mens rea in the sense of being aware of an established modus operandi that would in the future coerce a prostitute to engage in prostitution.  However, his sentences as to certain counts are reversed where the jury did not find that the offenses were "effected by fraud, force or coercion," as required by 18 U.S.C. section 1591(b)(1).

Read US v. Todd, No. 08-30360

Appellate Information

Argued and Submitted August 5, 2009

Filed October 20, 2009

Judges

Opinion by Judge Noonan

Counsel

For Appellant:

Suzanne Lee Elliott, Seattle, WA

For Appellee:

Ye-Ting Woo, Assistant United States Attorney, Seattle, WA

US v. $186,416.00 in US Currency

In a civil forfeiture action seeking the proceeds of medical marijuana distribution, judgment for the government is reversed where the evidence relied upon by the district court was itself tainted by the illegal search and should have been suppressed, and without the suppressed evidence, the government lacked probable cause to connect the defendant currency to a violation of federal law.

Read US v. $186,416.00 in US Currency

Appellate Information

Argued and Submitted March 12, 2009

Filed October 20, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellant:

Paul L. Gabbert, Santa Monica, CA

For Appellee:

Christine C. Ewell, Steven R. Welk, P. Greg Parham, Assistant U.S. Attorneys, Los Angeles, CA

McSherry v. Long Beach, No. 06-55837

In a 42 U.S.C. section 1983 action arising from the faulty imprisonment of now-exonerated plaintiff for almost fourteen years, summary judgment for defendants is affirmed where: 1) there was insufficient evidence that defendants acted in bad faith or without probable cause in apprehending plaintiff; and 2) no municipal liability could exist where no underlying constitutional violation occurred.  (Superseding opinion)

Read McSherry v. Long Beach, No. 06-55837

Appellate Information

Argued and Submitted February 14, 2008

Order and Opinion Filed October 20, 2009

Judges

Opinion by Judge Trott

Counsel

For Appellant:

Mark A. Borenstein, Overland Borenstein Scheper & Kim LLP, Los Angeles, CA

For Appellees:

Michael M. Mullins and Nowland C. Hong, Akerman Senterfitt LLP, Los Angeles, CA

US v. Wesson, No. 08-30177

In a drug distribution prosecution, the denial of defendant's motion for reduction of his sentence is affirmed where defendant was sentenced as a career offender, and was thus not eligible for a reduction of his prison sentence under Amendment 706 to the Sentencing Guidelines.

Read US v. Wesson, No. 08-30177

Appellate Information

Submitted October 19, 2009

Filed October 19, 2009

Judges

Opinion by Judge Tallman

Counsel

For Appellant:

Tracey A. Staab, Federal Defenders of Eastern Washington and Idaho, Spokane, WA

For Appellee:

Robert A. Ellis, Assistant United States Attorney, Spokane, WA

Padgett v. Wright, No. 08-16720

In a 42 U.S.C. section 1983 action, defendant's appeal from the denial of summary judgment on qualified immunity grounds is dismissed as moot where the trial already occurred and there was no longer any compelling reason for the court of appeals to deviate from the general rule preventing it from reviewing denials of summary judgment.

Read Padgett v. Wright, No. 08-16720

Appellate Information

Submitted October 5, 2009

Filed October 14, 2009

Judges

Per Curiam

Counsel

For Appellant:

Todd H. Master, Redwood City, CA

For Appellees:

M. Jeffery Kallis, Andrew V. Stearns, and Steven M. Berki, San Jose, CA

Sprint PCS Assets, L.L.C. v. Palos Verdes Estates, No. 05-56106

In an action under the Telecommunications Act of 1996 claiming that defendant-city improperly denied plaintiff permission to construct two wireless telecommunications facilities in the city's public rights of way, summary judgment for plaintiff is reversed where the city's denial was supported by substantial evidence, and disputed issues of material fact precluded a finding that the decision amounted to a prohibition on the provision of wireless service.

Read Sprint PCS Assets, L.L.C. v. Palos Verdes Estates, No. 05-56106

Appellate Information

Argued and Submitted July 6, 2009

Filed October 14, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Appellants:

Scott J. Grossberg, Richard R. Clouse, Amy R. von Kelsch- Berk, Cihigoyenetche, Grossberg & Clouse, Ranco Cucamonga, CA

Daniel P. Barer, Pollak, Vida & Fisher, Los Angeles, CA, for the appellants.

For Appellee:

John J. Flynn III, Gregory W. Sanders, and Michael W. Shonafelt, Nossaman, Guthner, Knox & Elliott, LLP, Irvine, CA

Barrientos v. 1801-1825 Morton LLC, No. 07-56697

In an action under the Housing and Community Development Act challenging eviction notices issued by defendant-landlord, summary judgment for plaintiffs is affirmed where the Department of Housing and Urban Development's "good cause" regulation did not preempt the operation of the City of Los Angeles's eviction control ordinance.

Read Barrientos v. 1801-1825 Morton LLC, No. 07-56697

Appellate Information

Argued and Submitted March 2, 2009

Filed October 9, 2009

Judges

Opinion by Judge Wardlaw

Counsel

For Appellant:

Chris J. Evans, Kimball, Tirey & St. John, LLP, Irvine, CA

For Appellees:

Michael E. Soloff, Munger, Tolles & Olson, LLP, Los Angeles, CA

A. Christian Abasto, Legal Aid Foundation of Los Angeles, Los Angeles, CA

Proctor v. Vishay Intertechnology Inc., No. 07-16527

In a derivative action against a corporation's majority shareholder claiming that defendant misappropriated the company's assets and breached its fiduciary duties to the company and the other shareholders, dismissal of the action is affirmed in part where the action was subject to removal under the Securities Litigation Uniform Standards Act and removal was timely and procedurally proper.  However, the order is reversed in part where the district court erroneously gave effect to a Delaware state court injunction.

Read Proctor v. Vishay Intertechnology Inc., No. 07-16527

Appellate Information

Argued and Submitted February 10, 2009

Filed October 9, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellants:

Maxwell M. Blecher and James Robert Noblin, Los Angeles, CA

James A. Hennefer, San Francisco, CA

For Appellee:

Peter A. Wald and David M. Friedman, San Francisco, CA

J. Andrew Heaton, Washington, DC

US v. Milner, No. 05-35802

In an action against certain waterfront homeowners for common law trespass and violations of the Rivers and Harbors Appropriation Act of 1899 and the Clean Water Act, because the ambulatory tideland property boundary came to intersect shore defense structures the homeowners erected, judgment for plaintiff is affirmed in part where: 1) the U.S. owned the tidelands at issue and held them in trust for an Indian tribe; 2) because both the upland and tideland owners had a vested right to gains from the ambulation of the boundary, the homeowners could not permanently fix the property boundary, thereby depriving the Indians of tidelands that they would otherwise gain; and 3) the intent requirement for common law trespass was satisfied because the government requested that the encroaching parts of the structures be removed, but the homeowners failed to do so.

Read US v. Milner, No. 05-35802

Appellate Information

Argued March 13, 2008

Submitted October 9, 2009

Judges

Opinion by Judge B. Fletcher

Counsel

For Appellants:

Richard M. Stephens, Groen Stephens & Klinge LLP, Bellevue, WA

For Appellee:

Brian Kipnis, Office of the United States Attorney, Seattle, WA

Comm. Concerning Cmty. Improvement v. Modesto, No. 07-16715

In an action claiming that defendant city and county failed to provide plaintiffs, Latino residents of neighborhoods in the city, with adequate municipal services for discriminatory reasons, summary judgment for defendants is affirmed in part where: 1) given defendants' evidence of a lack of disparity in actual access to sewer services, plaintiffs' statistical evidence was insufficient to give rise to an inference of discriminatory intent; and 2) defendant-county presented valid reasons why it chose to undertake certain infrastructure projects first.  However, the order is reversed in part where: 1) the district court erred in dismissing the parties' 2004 property tax agreement as merely an automatic renewal of a past action, and thus dismissing plaintiffs' claims on statute of limitations grounds; and 2) plaintiffs presented evidence of the discriminatory impact of certain city policies which, in turn, created a sufficient inference of discriminatory intent.

Read Comm. Concerning Cmty. Improvement v. Modesto, No. 07-16715

Appellate Information

Argued and Submitted May 11, 2009

Filed October 8, 2009

Judges

Opinion by Judge Pollak

Counsel

For Appellants:

Brian Brosnahan, Kasowitz, Benson, Torres & Friedman LLP, San Francisco, CA

For Appellee:

John E. McDermott, Howrey LLP, Los Angeles, CA

Los Altos El Granada Investors v. Capitola, No. 07-16888

In a Takings Clause challenge to a rent control ordinance, judgment on the pleadings for defendant is reversed where the district court erred in determining that prior state court decisions striking plaintiff's "England reservations" of its federal constitutional claims meant there was no valid reservation.

Read Los Altos El Granada Investors v. Capitola, No. 07-16888

Appellate Information

Argued and Submitted March 12, 2009

Filed October 7, 2009

Judges

Opinion by Judge Bybee

Counsel

For Appellant:

Robert S. Coldren, C. William Dahlin, and Mark D. Alpert, Santa Ana, CA

For Appellees:

John G. Barisone, Santa Cruz, CA

Henry E. Heater and Linda B. Reich, San Diego, CA

In re: Greene, No. 07-16067

In debtor's appeal from the district court's order affirming a bankruptcy court's decision limiting the debtor's homestead exemption in his bankruptcy petition to $125,000 pursuant to 11 U.S.C. section 522(p), the order is affirmed in part where no pre-petition appreciation of the property at issue occurred.  However, the order is reversed in part where "any amount of interest that was acquired," as used in section 522(p)(1), meant the acquisition of ownership of real property and the monetary cap in section 522(p) did not apply to property to which a debtor acquired title more than 1215 days before she or he filed a bankruptcy petition.

Read In re: Greene, No. 07-16067

Appellate Information

Argued and Submitted May 7, 2008

Filed October 5, 2009

Judges

Opinion by Judge Timlin

Counsel

For Appellant:

David Rankine and Michael Lehners, Reno, NV

For Appellee:

Robert C. Vohl, Reno, NV

US v. Estrada-Eliverio, No. 07-50191

Defendant's conviction and sentence for illegal reentry into the U.S. are affirmed where: 1) the Federal Rules of Criminal Procedure permitted authentication of official documents under Fed. R. Evid. 901; and 2) defendant's prior California offense of assault with a deadly weapon or by means likely to produce great bodily injury constituted a crime of violence under U.S.S.G. section 2L1.2(b)(1)(A)(ii).

Read US v. Estrada-Eliverio, No. 07-50191

Appellate Information

Argued and Submitted May 7, 2008

Filed October 5, 2009

Judges

Opinion by Judge Paez

Counsel

For Appellant:

Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA

For Appellee:

Mark R. Rehe, Assistant United States Attorney, San Diego, CA

Klein v. San Clemente, No. 08-55015

In a First Amendment challenge to a city ordinance prohibiting all leafleting of unoccupied vehicles, the district court's denial of a preliminary injunction is reversed where plaintiffs were likely to succeed in demonstrating that the city's justification for its prohibition was insufficient and they otherwise met the requirements for obtaining a preliminary injunction enjoining enforcement of the prohibition.

Read Klein v. San Clemente, No. 08-55015

Appellate Information

Argued and Submitted August 4, 2008

Filed October 2, 2009

Judges

Opinion by Judge Berzon

Counsel

For Appellants:

Michael J. Kumeta, La Mesa, CA

William G. Gillespie, Poway, CA

For Appellee:

Steve Klein, Edwin J. Richards, Julie R. Beaton, M. Courtney Koger, Kutak Rock LLP, Irvine, CA

Libberton v. Ryan, No. 07-99024

In a capital habeas matter, the denial of petitioner's petition is affirmed as to the guilt phase of petitioner's trial where: 1) the Antiterrorism and Effective Death Penalty Act (AEDPA) applied to the petition because the district court had dismissed petitioner's pre-AEDPA petition and 2) an alleged secret deal between the prosecution and a witness was not material; but reversed as to the penalty phase where counsel failed to call a sufficient number of mitigating witnesses and to pursue evidence of another perpetrator's primary responsibility for the crime.

Read Libberton v. Ryan, No. 07-99024

Appellate Information

Argued and Submitted June 3, 2009

Filed October 2, 2009

Judges

Opinion by Judge W. Fletcher

Counsel

For Petitioner:

Jose A. Cardenas, Lewis & Roca, Phoenix, AZ

Denise Irene Young, Tucson, AZ

For Respondent:

Robert J. Gorman, Jr., Kent E. Cattani, Office of the Arizona Attorney General, Tucson, AZ

Jones v. Ryan, No. 07-99000

In a capital habeas matter, the denial of petitioner's petition is reversed where petitioner was denied constitutionally effective assistance of counsel at sentencing because counsel failed to: 1) secure the appointment of a mental health expert; 2) timely move for neurological and neuropsychological testing; and 3) present additional mitigation witnesses and evidence.

Read Jones v. Ryan, No. 07-99000

Appellate Information

Argued June 11, 2009

Submitted July 6, 2009

Judges

Opinion by Judge Thomas

Counsel

For Petitioner:

Jon M. Sands, Leticia Marquez and Sylvia J. Lett, Office of the Public Defender, Tucson, AZ

For Respondents:

Terry Goddard, Kent E. Cattani, Jeffrey A. Zick, Office of the Attorney General, Phoenix, AZ

Balen v. Holland Am. Line Inc., No. 07-36011

In an action for unpaid wages under the Seamen's Wage Act, the district court's order granting defendant's motion to compel arbitration is affirmed where claims under the Act are subject to arbitration pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and plaintiff's claim was subject to a valid arbitration agreement.

Read Balen v. Holland Am. Line Inc., No. 07-36011

Appellate Information

Argued and Submitted May 6, 2009

Filed October 2, 2009

Judges

Opinion by Judge Smith

Counsel

For Appellant:

Gregory M. Miller, Reed, Longyear, Malnati & Ahrens, PLLC, Seattle, WA

For Appellee:

Stephen R. Rummage and Roger A. Leishman, Davis Wright Tremaine LLP, Seattle, WA

Loya v. Starwood Hotels & Resorts Worldwide, Inc., No. 07-35571

In a tort action arising out of a scuba diving accident, the dismissal of the action on forum non conveniens grounds is affirmed where a claim implicating the Death on the High Seas Act is within the admiralty jurisdiction of the federal courts, and is thus subject to discretionary dismissal on forum non conveniens grounds.

Read Loya v. Starwood Hotels & Resorts Worldwide, Inc., No. 07-35571

Appellate Information

Argued and Submitted October 21, 2008

Submission Vacated October 30, 2008

Resubmitted August 21, 2009

Filed October 2, 2009

Judges

Opinion by Judge Rymer

Dissent by Judge Kleinfeld

Counsel

For Appellants:

Scott E. Stafne, Stafne Law Firm, Arlington, WA

Martin D. Fox, Martin D. Fox, Inc., Seattle, WA

For Appellees:

Melissa O. White, Rodney Q. Fonda, Cozen O'Connor, Seattle, WA

In re Greene, No. 07-16067

In a debtor's appeal from the bankruptcy court's order limiting the homestead exemption in his bankruptcy petition, the order is affirmed in part where there was no pre-petition appreciation of the property at issue; but reversed in part, where perfection of a homestead exemption does not constitute acquisition of a property interest for purposes of 11 U.S.C. section 522(p)(1), and thus the debtor's homestead was not subject to the $125,000 cap contained in section 522(p).

Read In re Greene, No. 07-16067

Appellate Information

Argued and Submitted December 12, 2008

Filed October 2, 2009

Judges

Opinion by Judge Timlin

Counsel

For Appellant:

David Rankine and Michael Lehners, Reno, NV

For Appellee:

Robert C. Vohl, Reno, NV

Irigoyen-Briones v. Holder, No. 07-71806

In a petition for review of the BIA's denial of petitioner's motion to reconsider its rejection of petitioner's appeal as being untimely filed, the petition is denied where 8 C.F.R. section 1003.38(b) is ambiguous regarding the BIA's jurisdiction to consider late filings, and the BIA's interpretation barring petitioner's filing was not plainly erroneous or inconsistent with the language of the regulation.

Read Irigoyen-Briones v. Holder, No. 07-71806

Appellate Information

Argued and Submitted March 10, 2009

Filed September 29, 2009

Judges

Opinion by Judge Smith

Dissent by Judge Kleinfeld

Counsel

For Petitioner:

Charles E. Nichol, Law Offices of Charles E. Nichol, San Francisco, CA

For Respondent:

Charles Canter and Ronald E. LeFevre, U.S. Department of Justice, Washington, DC

Provincial Gov't. of Marinduque v. Placer Dome, Inc., No. 07-16306

In an action by a Philippine island claiming that an American company polluted its waters, dismissal of the action on forum non conveniens grounds is reversed where the district court lacked subject matter jurisdiction under the act of state doctrine because none of the conduct by the Philippine government referenced by defendants was essential to any of the plaintiff's causes of action.

Read Provincial Gov't. of Marinduque v. Placer Dome, Inc., No. 07-16306

Appellate Information

Argued and Submitted December 7, 2007

Filed September 29, 2009

Judges

Opinion by Judge McKeown

Counsel

For Appellant:

Walter J. Scott, James D. McCarthy and David H. Ammons, Diamond McCarthy LLP, Dallas, TX

For Appellees:

Steve Morris, Rex D. Garner, Morris Pickering & Peterson, Las Vegas, NV

Aguilar-Turcios v. Holder, No. 06-73451

In a petition for review of the BIA's order dismissing petitioner's appeal from an Immigration Judge's order finding him removable as an alien convicted of an aggravated felony, the petition is granted where petitioner was not convicted of an aggravated felony as his conviction for violating Article 92 of the Uniform Code of Military Justice did not categorically involve a depiction of a minor engaging in sexually explicit conduct.

Read Aguilar-Turcios v. Holder, No. 06-73451

Appellate Information

Argued and Submitted December 7, 2007

Filed September 29, 2009

Judges

Opinion by Judge Nelson

Dissent by Judge Bybee

Counsel

For Petitioner:

David B. Landry, San Diego, CA

For Respondent:

Siu P. Wong and Greg D. Mack, Department of Justice, Washington, DC

Turcios v. Holder, No. 05-72258

In a petition for review of the BIA's denial of petitioner's motion to reconsider its rejection of his appeal of an Immigration Judge's decision as being untimely filed, the petition is dismissed where the BIA's denial of petitioner's motion was an exercise of routine discretion.

Read Turcios v. Holder, No. 05-72258

Appellate Information

Argued and Submitted April 15, 2009

Filed September 29, 2009

Judges

Opinion by Judge Siler

Dissent by Judge Kleinfeld

Counsel

For Petitioner:

Martin Avila Robles, San Francisco, CA

For Respondent:

Allen W. Hausman, U.S. Department of Justice, Washington, DC

Sternberg v. Johnston, No. 07-16870

In an adversary proceeding in bankruptcy court for violation of an automatic stay, judgment for defendant is affirmed in part where plaintiff violated his duty to ensure that his actions did not prolong a violation of the stay that resulted from a state court motion seeking relief against defendant that plaintiff filed prior to the bankruptcy.  However, the damages award entered by the district court is vacated where defendant could recover as actual damages only those attorney's fees related to enforcing the automatic stay and remedying the stay violation, not the fees incurred in prosecuting the bankruptcy adversary proceeding in which he pursued his claim for those damages.

Read Sternberg v. Johnston, No. 07-16870

Appellate Information

Argued and Submitted March 6, 2009

Filed October 1, 2009

Judges

Opinion by Judge Clifton

Counsel

For Appellants:

Michael W. Carmel, Phoenix, AZ

For Appellee:

Ronald J. Ellett, Phoenix, AZ

Pedroza v. Benefits Rev. Bd., No. 05-75449

In a petition for review of the Benefits Review Board's determination that petitioner was not entitled to disability benefits under the Longshore and Harbor Worker's Compensation Act, the petition is denied where psychological injuries that result from legitimate personnel actions are not compensable under the Act.

Read Pedroza v. Benefits Rev. Bd., No. 05-75449

Appellate Information

Argued and Submitted October 23, 2008

Filed October 1, 2009

Judges

Opinion by Judge Collins

Counsel

For Petitioner:

Joshua T. Gillelan II, Longshore Claimaint's National Law Center, Washington, DC

For Respondent:

Roy D. Alexrod, Law Offices of Roy Alexrod, Solana Beach, CA