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The Ninth Circuit vacated the district court's order granting plaintiff's motion to remand a putative class action alleging that Monterey recorded or monitored its telephone conversations with plaintiff without giving her notice. The panel held that plaintiff did not meet the requirements of the Class Action Fairness Act's (CAFA), 28 U.S.C. 1332, home-state controversy exception because she did not prove that two-thirds of all class members were California citizens. In this case, plaintiff seeks to remand an otherwise valid CAFA case to state court when only a portion of the class meets the two-thirds citizenship requirement. The size of the entire class is unknown and plaintiff failed to prove that two-thirds of class members are California citizens because there was no evidence regarding the citizenship of class members who made or received a phone call from Monterey while located in, but not residing in, California or Washington. Accordingly, the panel remanded for further proceedings. View "Brinkley v. Monterey Financial Services, Inc." on Justia Law

Posted in: Class Action

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California consumers who can seek in California state court an order requiring the manufacturer of an allegedly falsely advertised product to cease the false advertising may also seek such an order in federal court. A consumer's inability to rely in the future upon a representation made on a package, even if the consumer knew or continued to believe the same representation was false in the past, is an ongoing injury that may justify an order barring the false advertising.The Ninth Circuit reversed the dismissal of an action alleging that Kimberly-Clark falsely advertised that four cleansing wipes they manufactured and sold were flushable. The action was filed in state court and then removed to federal court. The panel held that plaintiff plausibly alleged that Kimberly-Clark engaged in false advertising and that she will suffer further harm in the absence of an injunction. Accordingly, the panel remanded for further proceedings. View "Davidson v. Kimberly-Clark Corp." on Justia Law

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Anthony Jones's parents filed suit against the Police Department and all of the officers involved in the restraining, tasing, and resulting death of Jones. The district court granted summary judgment for defendants on all claims. At issue on appeal were the claims against Officers Hatten and English. The Ninth Circuit held that the district court abused its discretion by failing to give plaintiffs a reasonable opportunity to substitute the proper party under Federal Rule of Civil Procedure 17 and thus cure the defective complaint. The panel also held that a jury could reasonably conclude that the officers knew or should have known that their use of tasers created a substantial risk of serious injury or death, and thus there were triable issues of fact as to whether the officers' continuous and simultaneous tasing was reasonable under the circumstances, and whether the officers were on notice that the force they used could cause serious injury or death. Furthermore, there was clearly established Fourth Amendment law at the time of the tasing and a jury could reasonably conclude that the officers used excessive force. Therefore, the court reversed as to this issue. The panel affirmed as to the Fourteenth Amendment claim and the false arrest/imprisonment claims, but remanded as to the state law battery and negligence claims. View "Jones v. Las Vegas Metropolitan Police Dept." on Justia Law

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The Ninth Circuit reversed defendant's conviction on two counts of aggravated sexual abuse of a child. The panel held that there were a number of trial errors and, considering that evidence of guilt was not overwhelming, their cumulative effect prejudiced defendant. The trial errors included the following: (1) improper witness testimony that bolstered the victim's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of defendant's ex-wife's testimony regarding a child-incest fantasy defendant allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on defendant's decision not to testify, witness vouching, and misstating the evidence in summation. Accordingly, the panel remanded for a new trial. View "United States v. Preston" on Justia Law

Posted in: Criminal Law

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The Ninth Circuit denied a petition for review of the denial of petitioner's unfair labor practice complaint. The panel held that the NLRB properly applied a new standard for deferring to arbitral decisions only prospectively. Accordingly, the panel affirmed the arbitral decision under the previous deferral standard. The panel applied a five-factor analysis in Montgomery Ward & Co. v. FTC, 691 F.2d 1322, 1333 (9th Cir. 1982), to balance the interests in considering retroactive application of a new standard and held that the NLRB properly applied the new standard only prospectively. Although petitioner's case was one of first impression before the Board, the other four factors of the retroactivity test substantially outweighed that one factor. View "Beneli v. NLRB" on Justia Law

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A housing loan, made by an employer to an employee as a key part of a compensation package, qualified as a non-consumer debt. The Ninth Circuit affirmed the Bankruptcy Appellate Panel's decision affirming the bankruptcy court's denial of creditor's motion to dismiss debtor's Chapter 7 bankruptcy petition for abuse under 11 U.S.C. 707(b)(1). As a preliminary matter, the panel held that the bankruptcy court's order denying creditor's motion to dismiss under section 707(b) was final and appealable. On the merits, the panel held that the bankruptcy court did not err by finding that the housing loan was a non-consumer debt. The panel agreed with the bankruptcy court that debtor incurred the housing loan primarily for a non-consumer purpose connected to furthering his career. View "Aspen Skiing Co. v. Cherrett" on Justia Law

Posted in: Bankruptcy

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The question of whether a particular constitutional right is "clearly established," as part of the qualified immunity analysis, is within the province of the judge. The Ninth Circuit affirmed in part and vacated in part the district court's judgment in an action alleging that police officers used excessive force in a May Day protest. The panel held that the district court erred in submitting the "clearly established" inquiry to the jury. The panel held that the error was not harmless with respect to plaintiff's claims against Officer Fry and remanded to the district court with instructions for it to either employ a general verdict form, or submit special interrogatories to the jury regarding the disputed issues of material fact. The panel also held that the district court properly denied Officer Rees's renewed motion for judgment as a matter of law on qualified immunity where, based on the evidence presented at trial, the jury could have reasonably decided that Rees's use of the pepper spray against plaintiff was retaliatory. Finally, the district court did not abuse its discretion in awarding attorney's fees. View "Morales v. Fry" on Justia Law

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The Ninth Circuit filed an order granting petitions for panel rehearing, denied petitions for rehearing en banc, withdrawing the opinion, and directing the filing of a new opinion. The panel also filed a new opinion, holding that the City of Los Angeles, which operates LAX, can require businesses at the airport to accept certain contractual conditions aimed at preventing service disruptions. One such condition, section 25, requires service providers to enter a "labor peace agreement" with any employee organization that requests one. The panel reasoned that the City was acting as a market participant when it added section 25 to its LAX licensing contract, and the preemption provisions of the National Labor Relations Act (NLRA), the Railway Labor Act (RLA), and the Airline Deregulation Act (ADA), did not apply to state and local governmental actions taken as a market participant. Accordingly, the panel affirmed the dismissal of plaintiffs' preemption claim for failure to state a claim on which relief could be granted. Furthermore, the district court did not err by denying leave to amend. View "Airline Service Providers Assoc. v. L.A. World Airports" on Justia Law

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The Ninth Circuit affirmed the district court's denial of a petition for habeas relief challenging petitioner's conviction and death sentence for four counts of first degree murder. The panel held that, because petitioner failed to prove that any of the eyewitnesses provided material, false testimony or that the prosecution knew they committed perjury, the state court's rejection of petitioner's Mooney-Napue claims relating to the eyewitnesses was neither contrary to clearly established federal law nor objectively unreasonable; the state court reasonably denied petitioner's claim that certain testimony from non-eyewitnesses was false; the state court reasonably denied petitioner's claims under Brady v. Maryland, 373 U.S. 83 (1963); the state court reasonably denied petitioner's claims relating to the exposure of two eyewitnesses; and the court affirmed the district court's denial of petitioner's habeas petition with respect to the Mesarosh claim, lineup card claim, Massiah claim, ineffective assistance of counsel claim, and cumulative error claim. View "Sanders v. Cullen" on Justia Law

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A state court's alteration of the number of presentence credits to which a prisoner was entitled under California law constitutes a new, intervening judgment under Wentzell v. Neven, 674 F.3d 1124, 1125 (9th Cir. 2012). The Ninth Circuit reversed the dismissal of a California state prisoner's habeas corpus petition and remanded for further proceedings. In this case, the amendment to the judgment was clearly a new judgment under Magwood v. Patterson, 561 U.S. 320, 341–42 (2010). The panel explained, so too, with the amendment to petitioner's presentence credits, and thus to his sentence. View "Gonzalez v. Sherman" on Justia Law