Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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Gentile v. Securities and Exchange Commission

Court: US Court of Appeals for the Third Circuit

Docket: 19-2252

Opinion Date: September 10, 2020

Judge: Phipps

Areas of Law: Civil Procedure, Government & Administrative Law, Securities Law

The SEC investigated Gentile for his role in a penny-stock manipulation scheme in 2007-08 and civilly sued Gentile, who was indicted for securities fraud violations. The criminal prosecution was dismissed as untimely. The SEC separately investigated securities transactions through an unregistered broker-dealer in violation of the Securities and Exchange Act of 1934, 15 U.S.C. 78o(a): Traders Café, a day-trading firm, maintained an account with Gentile’s Bahamian broker-dealer, which was not registered in the U.S. The SEC issued a Formal Order of Investigation into Café in 2013. Without issuing a new Formal Order, the SEC informed Gentile that he was a target in that investigation. The SEC subpoenaed Gentile for testimony. He refused to comply. The SEC did not seek enforcement against Gentile but subpoenaed Gentile’s attorney and an entity affiliated with Gentile’s Bahamian broker-dealer, which also refused to comply. The SEC commenced enforcement actions against those entities. Gentile unsuccessfully moved to intervene; the Florida district court ordered compliance. Gentile filed suit in New Jersey, seeking a declaration that the Café investigation was unlawful, requesting the quashing of the subpoenas, and seeking an injunction to prevent the SEC from using the fruits of that investigation against him. The Third Circuit affirmed the dismissal of the suit. The APA’s waiver of sovereign immunity, 5 U.S.C. 702, includes an exception for “agency action committed to agency discretion by law,” section 701(a)(2); sovereign immunity prevents judicial review of the Formal Order of Investigation.

Texas Democratic Party v. Hughs

Court: US Court of Appeals for the Fifth Circuit

Docket: 20-50667

Opinion Date: September 10, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law, Election Law

Plaintiffs filed suit against the Texas Secretary of State Ruth Hughs under 42 U.S.C. 1983 for allegedly imposing a voter-registration requirement that violates federal law. After the district court denied the Secretary's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) and (b)(6), the Secretary noticed an interlocutory appeal, and plaintiffs moved for summary affirmance or dismissal of the Secretary's appeal as frivolous. The Fifth Circuit held that the Secretary's appeal is not frivolous because it presents an important question that has not been resolved by the court: whether and to what extent the exception in Ex parte Young, 209 U.S. 123, 157 (1908), to sovereign immunity permits plaintiffs to sue the Secretary in an as-applied challenge to a law enforced by local officials. Accordingly, the court denied the motion for summary affirmance and the motion to dismiss the appeal as frivolous.

A.F. Moore & Associates, Inc. v. Kocoras

Court: US Court of Appeals for the Seventh Circuit

Docket: 20-2497

Opinion Date: September 10, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure

The Seventh Circuit reversed the dismissal of a taxpayers' suit, challenging Cook County’s pre-2008 property tax assessments. The district court had determined that it lacked jurisdiction under the Tax Injunction Act, 28 U.S.C. 1341, because Illinois offered the taxpayers a “plain, speedy and efficient remedy.” The Seventh Circuit held that Illinois’s procedures left these taxpayers no remedy. Mandate issued in April 2020, The case returned to the district court. In June, the defendants sought a stay pending the resolution of a petition for a writ of certiorari that they planned to submit in September. The Seventh Circuit denied their request but the district court granted relief. The Seventh Circuit vacated the district court order. Declining to consider the taxpayers’ argument under 28 U.S.C. 2101(f), which governs cases in which a “final judgment” is subject to Supreme Court review, the court stated that the district court’s stay was in direct opposition to the mandate. When a court of appeals has reversed a final judgment and remanded the case, the district court is required to comply. The Seventh CIrcuit noted that it had already denied the defendants’ request for the same relief. The spirit of the mandate entailed more than changing the status of the case from “closed” to “reopen”; it presupposed that further proceeding would be at an ordinary pace.

In re Volkswagen "Clean Diesel" Marketing, Sales Practices, and Products Liability Litigation

Court: US Court of Appeals for the Ninth Circuit

Dockets: 19-16361, 19-16362, 19-16363, 19-16376

Opinion Date: September 10, 2020

Judge: Patrick J. Bumatay

Areas of Law: Civil Procedure, Products Liability

The Ninth Circuit affirmed the district court's denial of claimants' motions to enforce a settlement agreement that the district court approved between Volkswagen and owners and lessees of diesel cars that had defeat devices, which altered emissions profiles of the cars. The panel held that the district court had the authority to review claimants' motions to enforce the settlement agreement. Furthermore, the district court did not err in reaching the merits of claimants' motions without resolving their status as third-party beneficiaries. The panel also held that the district court had the authority to, and did, approve the amendment to the settlement agreement. The panel stated that the Framework is now an enforceable part of the settlement agreement. Given the settlement agreement's express modification procedures, the district court did not abuse its discretion by construing the Framework as such a modification and approving it in response to claimants' motions.

Jamul Action Committee v. Simermeyer

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-16655

Opinion Date: September 8, 2020

Judge: William A. Fletcher

Areas of Law: Civil Procedure, Native American Law

The Ninth Circuit affirmed the district court's dismissal for failure to join a required party in an action challenging the Jamul Indian Village's efforts to build a casino. The panel held that the distinction JAC urges between historic tribes and other tribal entities organized under the Indian Reorganization Act is without basis in federal law. The panel held that Jamul Indian Village is a federally recognized Indian tribe with the same privileges and immunities, including tribal sovereign immunity, that other federally recognized Indian tribes possess. Therefore, the Village's tribal sovereign immunity extends to its officers in this case. Because the Village is protected by tribal sovereign immunity, the panel agreed with the district court that the Village cannot be joined in this action and that the action cannot proceed in equity and good conscience without it.

Salter v. Quality Carriers, Inc.

Court: US Court of Appeals for the Ninth Circuit

Docket: 20-55709

Opinion Date: September 8, 2020

Judge: Consuelo Maria Callahan

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiff filed a putative class action against Quality, alleging that Quality failed to provide truck drivers with meal breaks, rest periods, overtime wages, minimum wages, and reimbursement for necessary expenditures as required by California law. After Quality removed to federal court, the district court granted plaintiff's motion to remand to state court. The Ninth Circuit vacated the district court's remand order and held that plaintiff challenged the form, not the substance, of Quality's showing, and the form of that showing was sufficient under the panel's case law. In this case, because the amount in controversy was not clear from plaintiff's complaint, Quality submitted a declaration to show that more than $5 million was in controversy. The panel explained that Quality only needed to include a plausible allegation that the amount in controversy exceeds the jurisdictional threshold. Therefore, the district court erred in treating plaintiff's attack on Quality's presentation as a factual, rather than facial, challenge.

John Doe #6 v. Miami-Dade County

Court: US Court of Appeals for the Eleventh Circuit

Dockets: 15-14336, 19-10254

Opinion Date: September 9, 2020

Judge: Martin

Areas of Law: Civil Procedure, Civil Rights, Constitutional Law

Plaintiffs, former sex offenders and currently homeless residents of the County, filed suit alleging that County Ordinance No. 05-206, which restricts certain sex offenders from living within 2,500 feet of a school, violates the ex post facto clauses of both the federal and state constitutions because the residency restriction amounted to an impermissible retroactive criminal punishment. The Eleventh Circuit held that the district court did not abuse its discretion by denying plaintiffs' Federal Rule of Civil Procedure 15 motion to conform their pleadings to the evidence. The court explained that Rule 15(b) allows parties to add unpled issues to a case if those issues have been tried with the express or implied consent of the parties, but one must comply with the notice demands of procedural due process before an unpled issue can be added. In this case, plaintiffs failed to give fair notice to the County of their as-applied theory of relief, and the County says it would have defended the Ordinance differently had it known that plaintiffs sought this relief.

Anthony et al. v. Datcher, et al.

Court: Supreme Court of Alabama

Docket: 1190164

Opinion Date: September 4, 2020

Judge: Tommy Bryan

Areas of Law: Civil Procedure, Education Law, Government & Administrative Law, Labor & Employment Law

Cynthia Anthony, former interim president of Shelton State Community College; William Ashley, then-president of Shelton State; and Jimmy Baker, chancellor of the Alabama Community College System ("the ACCS") (collectively, "the college defendants"), appealed a circuit court judgment entered in favor of Khristy Large and Robert Pressley, current instructors at Shelton State, and Scheree Datcher, a former instructor at Shelton State (collectively, "the instructor plaintiffs"). Large and Pressley were instructors in the Office Administration Department ("OAD") at Shelton State; Datcher was an OAD instructor, now retired. Under college policy, an instructor was placed into one of three groups based on the instructor's "teaching area": Group A, Group B, or Group C. After an instructor was placed into a group, the instructor was ranked within the group for salary purposes according to criteria listed in the policy. The primary issue in this case was whether the instructor plaintiffs should be placed in Group A or Group B. In 2013, Joan Davis, then-interim president of Shelton State, concluded that Datcher and Pressley should have been reclassified from Group A to Group B, contrary to their credentialing document. Datcher and Pressley received higher salaries by being reclassified to Group B. When Large was hired to be an OAD instructor in 2013, she was also placed in Group B. In 2016, Chancellor Heinrich directed Anthony, then interim president, to review instructors' classifications to make sure they were properly classified. Anthony determined the instructor plaintiffs should have been classified as Group A, in accordance with the credentialing document. Thus, she reclassified the instructor plaintiffs to Group A, which resulted in decreased salaries. The trial court entered a judgment in favor of the instructor plaintiffs, concluding that they are properly classified in Group B under the policy and ordering that the instructor plaintiffs be placed in Group B. The trial court also awarded the instructor plaintiffs backpay for the period following Anthony's reclassification, during which they were classified as Group A instead of Group B. The Alabama Supreme Court determined the placement of OAD instructors in Group A was "plainly incorrect." Because the college defendants lacked discretion to classify the instructor plaintiffs as Group A, the claims for backpay against them in their official capacities were not barred by the doctrine of State immunity. When Anthony left her position as interim president, her successor was automatically substituted for her with respect to the official-capacity claims alleged against her; judgment should not have been entered against her. Therefore, judgment was reversed insofar as it was entered against Anthony. The judgment was affirmed in all other respects.

Campbell v. City of Gardendale

Court: Supreme Court of Alabama

Docket: 1180778

Opinion Date: September 4, 2020

Judge: Greg Shaw

Areas of Law: Civil Procedure, Government & Administrative Law, Tax Law

Jay Campbell, on behalf of himself and a certified class of "other persons similarly situated," appealed the grant of summary judgment on claims challenging the constitutionality of two municipal taxes adopted in 2013 by the City of Gardendale in connection with Gardendale's planned creation of a municipal school system. After review, the Alabama Supreme Court concluded Campbell did not demonstrate that the Gardendale school taxes were rendered invalid by operation of Local Amendment 14. The Court therefore pretermitted discussion of the alternate arguments for affirmance presented by Jefferson County and Smallwood. The judgment of the trial court was affirmed.

Casey v. Beeker

Court: Supreme Court of Alabama

Docket: 1190400

Opinion Date: September 4, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Government & Administrative Law

Laura Casey appealed a circuit court judgment entered against Chris "Chip" Beeker, Jr., Twinkle Andress Cavanaugh, and Jeremy Oden ("the commissioners"), in their official capacities as commissioners of the Alabama Public Service Commission ("the PSC"). In her complaint, Casey asserted that a gathering of the commissioners at a public hearing held by the PSC in November 2019 constituted a "meeting" under the Alabama Open Meetings Act, section 36-25A-1 et seq., Ala. Code 1975 ("the Act"). She alleged that proper notice of the hearing was not given as required by the Act and that she was prohibited from recording the hearing in violation of the Act. The trial court, however, ruled that a "meeting" had not occurred at the hearing and that the Act therefore does not apply. Finding no reversible error, the Alabama Supreme Court affirmed.

Ex parte Blue Cross & Blue Shield of Alabama.

Court: Supreme Court of Alabama

Docket: 1190232

Opinion Date: September 4, 2020

Judge: Stewart

Areas of Law: Civil Procedure, Health Law, Insurance Law

After her claim for coverage under the Public Education Employees' Health Insurance Plan ("PEEHIP") was denied, Marilyn Player sued Blue Cross and Blue Shield of Alabama ("BCBS") at the Macon Circuit Court ("the trial court") asserting claims of breach of contract and bad faith. BCBS sought a writ of mandamus to direct the trial court to transfer Player's case to the Montgomery Circuit Court pursuant to section 16-25A-7(e), Ala. Code 1975. A complaint seeking judicial review of a decision of a PEEHIP claims administrator could be heard only by the Montgomery Circuit Court. Player argued that 16-25A-7(e) did not apply to her complaint because her claims, she contended, did not constitute an action for a dispute over the denial of benefits and her complaint could not be characterized as an appeal of any administrative action. Rather, the breach-of-contract and bad-faith claims, Player argued, were regular tort claims recognized by the common law of Alabama and therefore did not fall within the purview of 16-25A-7(e). The Alabama Supreme Court was not persuaded: "Player cannot avoid the legislature's exclusive-venue provision by recasting her claims using artful labels." The trial court exceeded its discretion in denying BCBS's motion for a change of venue from Macon County to Montgomery County. Despite Player's attempt to cast the issues in her complaint as regular tort claims, Player's breach-of-contract and bad-faith claims are, in essence, disputes over a final decision allegedly made by BCBS regarding Player's insulin medication. Section 16-25A-7(e) controlled in this action; therefore, venue was proper in Montgomery County. The Supreme Court granted the petition and issued the writ. The trial court was ordered to transfer the action to the Montgomery Circuit Court.

Ex parte Gulf Health Hospitals, Inc., d/b/a Thomas Hospital.

Court: Supreme Court of Alabama

Docket: 1180596

Opinion Date: September 4, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

Deborah Faison ("Deborah") died from cardiac arrest while she was a patient at Thomas Hospital in Fairhope, Alabama. Her husband Larry Faison ("Faison") then sued Gulf Health Hospitals, Inc. ("Gulf Health"), which owned and operated the hospital. Over a year after filing suit, Faison was allowed to amend his complaint by making additional factual allegations to support his claims. Gulf Health petitioned the Alabama Supreme Court for a writ of mandamus to direct the trial court to strike the amended complaint. Gulf Health argued the the amendment was untimely and without good cause. The Supreme Court determined Gulf Health did not meet its burden of showing that a postjudgment appeal was an inadequate remedy. Therefore, petition was denied.

Ex parte N.G., Jr.

Court: Supreme Court of Alabama

Docket: 1190390

Opinion Date: September 4, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Trusts & Estates

N.G., Jr. ("father"); B.J.U., the father's legal guardian; and the N.G., Jr. Special Needs Trust, petitioned the Alabama Supreme Court for mandamus relief, to direct the Russell Juvenile Court to vacate an order transferring to the Russell Circuit Court a claim asserted by P.W. ("mother") alleging the fraudulent transfer of the father's assets in a case she filed seeking past-due child support. In 2005, the father was involved in an automobile accident and was rendered permanently disabled. His mother, B.J.U., was appointed as his guardian. Through B.J.U., the father commenced a personal-injury action seeking to recover compensation for injuries he sustained in the accident. The personal-injury action settled, and, in 2013, the settlement proceeds were placed in the special-needs trust. In August 2019, the mother filed a petition in the Russell Juvenile Court seeking to recover approximately $70,000 in past-due child support allegedly owed by the father. The mother also named B.J.U., in her individual capacity and as the father's guardian, as a defendant and alleged that she had secreted the father's assets. The mother asserted that placing the proceeds of the father's personal-injury settlement in the special-needs trust was a fraudulent transfer. She also added the special-needs trust as a defendant. The Alabama Supreme Court determined petitioners did not demonstrate the juvenile court was without power to transfer the mother's fraudulent-transfer claim to the circuit court. Accordingly, the Supreme Court denied the petition for relief.

Ex parte Sam Smith

Court: Supreme Court of Alabama

Docket: 1180834

Opinion Date: September 4, 2020

Judge: Greg Shaw

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury, Trusts & Estates

Defendants below, Sam Smith, director of the Calhoun County Department of Human Resources ("CCDHR"); Pamela McClellan, an adult-protective-services caseworker with CCDHR; and Teresa Ellis, McClellan's supervisor (referred to collectively as "petitioners"), petitioned the Alabama Supreme Court for a writ of mandamus to direct the circuit court to vacate its order denying their motion for a summary judgment in a wrongful-death action filed by William David Streip ("David"), as the personal representative of the estate of his sister, Jerrie Leeann Streip ("Leeann"), and to enter a summary judgment in their favor on the basis of immunity. Leeann suffered from numerous serious physical, mental, and emotional conditions since birth; those conditions were exacerbated by brain surgery in 2013. Following that surgery, Leeann was released to a nursing-home facility before being discharged into the care of her father. Leeann subsequently reported to a CCDHR social worker that her father had raped her. As a result, an adult-protective-services case was opened under Alabama's Adult Protective Services Act ("the APSA"), and McClellan was assigned as Leeann's caseworker. Upon the conclusion of the ensuing investigation, CCDHR removed Leeann from her father's care. Leeann was placed at a Leviticus Place, a boarding home where she remained for approximately one week. There were no concerns about Leeann's well being, but McClellan was notified Leann had left Leviticus Place and did not return. A body located in Birmingham was later identified as Leeann's; her cause of death remains "undetermined." After review, the Alabama Supreme Court determined petitioners established they were entitled to statutory immunity. They had a clear legal right to a summary judgment in their favor on that ground. The trial court was accordingly directed to vacate its order denying the petitioners' motion for a summary judgment and to enter a summary judgment in the petitioners' favor.

Kidd v. Benson

Court: Supreme Court of Alabama

Docket: 1190413

Opinion Date: September 4, 2020

Judge: Sellers

Areas of Law: Civil Procedure, Real Estate & Property Law

James Kidd, Jr., and Carolyn Kidd appealed the grant of summary judgment in favor of Edwin and Dianne Benson in their action against the Bensons arising out of a real-estate transaction. In this case, the Kidds signed a purchase agreement expressly stating that they were accepting the property in its "AS IS, WHERE IS, CONDITION." Despite "heightened" knowledge, they did not have the property or its structures professionally inspected. Because the Kidds purchased the property in its "as is" condition, without having a bluff area inspected, they could not invoke the health-or-safety exception to the doctrine of caveat emptor in an attempt to impose upon the Bensons a duty to disclose. Accordingly, the Kidds failed to present sufficient evidence creating a genuine issue of material fact not only as to their fraud claims, but also as to their negligence and wantonness claims. Therefore, the Supreme Court affirmed.

Spencer v. Remillard

Court: Supreme Court of Alabama

Docket: 1180650

Opinion Date: September 4, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Medical Malpractice

Kimberlee Spencer ("Kimberlee"), as personal representative of the estate of James Scott Spencer ("Scott"), her deceased husband, appealed a judgment as a matter of law entered by the circuit court at the close of Kimberlee's medical malpractice case against Michael Remillard, M.D., and Helena Family Medicine, LLC, the entity through which Dr. Remillard operated his family-medicine clinic ("the clinic"). On a visit in 2006 for a physical, Scott informed Dr. Remillard that his father had been diagnosed with early-stage prostate cancer. Scott had blood work and lab tests done during the 2006 visit, including a blood test used to assess a man's risk for developing prostate cancer. At that time, Scott's PSA level was 1.9, which was within the normal range for a man his age, 46 years old. In 2009, Scott again visited Dr. Remillard. Scott told Dr. Remillard that he had seen some blood in his stool, and Dr. Remillard performed a rectal examination on Scott. Dr. Remillard concluded from that exam that Scott's prostate was firm and normal, so he recommended that Scott get a colonoscopy to determine if there was a problem with his colon. Scott also had blood work done during the 2009 visit. At that time, Scott's PSA level was 14.3, which Dr. Remillard and Kimberlee's medical experts agreed was an elevated PSA level for a 49-year-old. A pivotal factual dispute in this case centered on when Dr. Remillard and Helena Family Medicine first informed Scott of the 2009 elevated PSA level. Scott next visited the clinic in 2011. During that visit, Dr. Remillard did not tell Scott about his 2009 elevated PSA level, but he did perform a rectal examination, and he determined that Scott's prostate was enlarged. Dr. Remillard diagnosed Scott with benign prostatic hyperplasia, and he prescribed Scott some medication for the condition. Scott was ultimately diagnosed with stage IV metastatic prostate cancer; he died as a result of the cancer on March 6, 2014. The Alabama Supreme Court concluded Kimberlee presented competent expert-witness testimony regarding the standard of care and causation. In the interest of judicial economy, the Court also addressed other rulings by the trial court challenged by Kimberlee in this appeal. Concerning those rulings, Kimberlee's CMA nursing expert should have been permitted to testify, but the trial court properly excluded Kimberlee's counsel from directly questioning Dr. Remillard about his failure to tell Scott about his 2009 abnormal PSA lab-test result during his April 7, 2011, visit to the clinic. The judgment of the trial court was reversed, and the case remanded for a new trial.

Martinez v. Government Employees Insurance Company, et al.

Court: Alaska Supreme Court

Docket: S-17041

Opinion Date: September 4, 2020

Judge: Peter J. Maassen

Areas of Law: Civil Procedure, Insurance Law, Personal Injury

In 2011, Joshua Martinez was driving a pickup truck when he lost control and crashed into a cabin, injuring the cabin owner Charles Burnett, and causing damage, including a spill of heating fuel. Burnett asked Martinez's insurance company, Government Employees Insurance Company (GEICO) to pay him to do the cleanup himself, but the insurance company refused because the cabin owner did not have the qualifications required by the Alaska Department of Environmental Conservation. Cleanup stalled for over a year while the effects of the spill on the property and the owner’s health allegedly worsened. Martinez and the truck’s owner (his father) Robert Martinez, settled with the Burnett for the maximum limits of the insurance policy, but Burnett sought additional damages from the insurance company for its failure to promptly clean up the property. Following summary judgment for the insurance company and a reversal and remand by the Alaska Supreme Court, the superior court held an evidentiary hearing to decide whether the insurance company had assumed a duty to the cabin owner independent of the duty it owed its insureds. The superior court found there was no such duty. Burnett and the insureds appeal. Burnett contended the superior court erred by finding no actionable duty, and that it deprived him of due process by failing to consider his arguments before entering proposed findings of fact and conclusions of law and awarding attorney’s fees. The insureds argued the superior court erred by deciding that they were precluded from further participation in the litigation once they entered into a settlement and were voluntarily dismissed from the case. The Supreme Court concluded the superior court did not clearly err in its findings of fact about the existence of an independent duty and that it did not violate Burnett’s due process rights. The Court also concluded the insureds were no longer parties to the case at the time they sought to renew their participation in it, and their arguments that they were entitled to either joinder or intervention were waived for lack of briefing.

Burchell v. Faculty Physicians & Surgeons etc.

Court: California Courts of Appeal

Docket: E071146(Fourth Appellate District)

Opinion Date: September 10, 2020

Judge: Raphael

Areas of Law: Civil Procedure, Health Law, Medical Malpractice, Personal Injury

In 2014, plaintiff-respondent Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. His surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected, believing the mass was malignant. Without consulting either Burchell (who was under anesthesia) or the person Burchell had designated as his medical proxy, Barker removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. Burchell suffered serious side effects, some of which are permanent and irreversible. The mass turned out to be benign. Burchell brought suit, alleging professional negligence and medical battery. A jury returned a verdict for Burchell on both causes of action, awarding him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages against Dr. Barker and defendant-appellant Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (FPS). On appeal, FPS argued the award of noneconomic damages should have been reduced to the $250,000 limit on such damages in “any action for injury against a health care provider based on professional negligence” provided by Civil Code section 3333.2(a), part of the Medical Injury Compensation Reform Act of 1975 (MICRA). In the alternative, FPS argued the award of noneconomic damages was excessive and the product of improper argument by Burchell’s counsel, so the Court of Appeal should reverse and remand for new trial unless Burchell accepts a reduction of the award to an amount we deem reasonable. Finally, FPS argued Burchell’s offer to compromise pursuant to Code of Civil Procedure section 998 was invalid, so the award of expert witness fees and prejudgment interest should also be reversed. After review, the Court of Appeal rejected FPS' first two arguments, but concurred that Burchell’s section 998 offer was invalid, and therefore reversed the award of expert witness fees and prejudgment interest.

Department of Fair Employment and Housing v. Cathy's Creations, Inc.

Court: California Courts of Appeal

Docket: F077802(Fifth Appellate District)

Opinion Date: September 9, 2020

Judge: Meehan

Areas of Law: Civil Procedure, Legal Ethics

An award of attorneys' fees under Code of Civil Procedure section 1021.5 was properly denied to the prevailing defendants in an action brought by DFEH under Government Code section 12974. This case arose out of an administrative complaint filed with DFEH by a same-sex couple who alleged they were denied services at a bakery because of their sexual orientation. The Court of Appeal held that section 12974's unilateral attorneys' fee provision conflicts with Code of Civil Procedure section 1021.5, and the two statutes cannot reasonably be harmonized. The court explained that because section 12974 is the more specific, later-enacted statute, it governs. Therefore, the court held that a prevailing defendant in a section 12974 action is not entitled to an award of fees against DFEH under section 1021.5, and the trial court did not err in denying defendants' attorneys' fee request.

Department of Fair Employment and Housing v. Superior Court of Kern County

Court: California Courts of Appeal

Docket: F078245(Fifth Appellate District)

Opinion Date: September 9, 2020

Judge: Meehan

Areas of Law: Civil Procedure, Constitutional Law

The underlying Government Code section 12974 civil action was initiated by DFEH in December 2017 by a petition seeking provisional relief to temporarily enjoin Tastries from refusing to sell wedding cakes to same-sex couples. The trial court denied DFEH's requests for a temporary restraining order and a preliminary injunction. The Court of Appeal granted DFEH's petition for writ of mandate, holding that the trial court's interpretation of a section 12974 civil action as the equivalent of a section 12965 action was incorrect, and its order on the preliminary injunction requested under section 12974 was not a merits-based determination of the merits of the DFEH's Unruh Civil Rights Act (UCRA) claim to be presented in a civil action under section 12965. Furthermore, regardless of the procedural context of the preliminary injunction request, the court held that the trial court's decision on it could not constitute a merits-based adjudication of the UCRA claim: the trial court's order related to an issue of law that was decided with reference to extrinsic factual evidence that had not been fully investigated at the administrative level or fully pleaded in a claim for permanent relief. The court finally held that the trial court's incorrect construction of its preliminary injunction order as a final, merits-based determination of the DFEH's UCRA claim in its order on the motion to enforce the judgment led the trial court to circumscribe DFEH's statutory duties in a manner that violated the separation of powers doctrine.

Rowan v. Kirkpatrick

Court: California Courts of Appeal

Docket: A160568(First Appellate District)

Opinion Date: September 4, 2020

Judge: Fujisaki

Areas of Law: Civil Procedure

In January 2020, Rowan and Kirkpatrick sought civil harassment restraining orders against one another. Rowan After hearings, the court granted Rowan’s restraining order request, dismissed Kirkpatrick’s request (due to her failure to appear at the hearing), and granted Rowan’s motion to declare Kirkpatrick a vexatious litigant. On February 25, Rowan served Kirkpatrick with notice of entry of the order dismissing Kirkpatrick’s restraining order request. On February 26, Rowan served Kirkpatrick with notice of entry of the order granting Rowan’s restraining order request. On March 6, Rowan served Kirkpatrick with notice of entry of the order granting Rowan’s vexatious litigant motion. On March 17, the Napa County Superior Court announced that due to the COVID-19 pandemic, it would reduce court operations, reducing calendars to time-sensitive and public safety matters. The court was closed, March 18-May 29, 2020; under Government Code 68115(a)(4), and superior court general orders, the days of closure were deemed “holidays.” The court of appeal issued emergency and implementation orders extending the deadlines under the California Rules of Court by 30 days for events occurring within specified time frames. The court of appeal held that Kirkpatrick’s July 14, 2020 notice of appeal was untimely; the last day for Kirkpatrick to file a timely notice of appeal from the first two orders was June 1, the day the superior court reopened, and the last day to file a timely appeal from the third order was June 4.

Vosburg v. County of Fresno

Court: California Courts of Appeal

Docket: F078081(Fifth Appellate District)

Opinion Date: September 9, 2020

Judge: Donald R. Franson, Jr.

Areas of Law: Civil Procedure, Election Law, Legal Ethics

As the foundation for the application of Code of Civil Procedure section 1021.5 to this case, the Court of Appeal held that an unincorporated association has standing to appear in an election contest as a representative of its members if (1) its members live in the area affected by the outcome of the election, (2) its members would suffer injury from an adverse outcome in the election contest, and (3) the questions involved were of a public nature. In this case, the court held that the unincorporated association met these requirements where it is undisputed that the patients residing at CSH-Coalinga are in an area affected by the referendum vote on Measure C; the members of DACE would have been harmed in at least two ways if the election contest was successful; and the specific challenge of illegal votes raised in this election contest involves questions of a public nature. The court held that the trial court's analysis of DACE's right to intervene in the election contest in the order denying the motion for attorney fees did not accurately reflect California law governing an unincorporated association and (2) DACE qualified for permissive intervention. Furthermore, as a de facto intervenor and based on its unique contribution to the evidence and argument presented in the trial court, DACE qualified as a party for purposes of section 1021.5's "successful party" requirement. The court rejected the remaining contentions, reversing the order denying the motion for attorney fees.

State Farm v. Spine Care Delaware

Court: Delaware Supreme Court

Docket: 469, 2019

Opinion Date: September 9, 2020

Judge: Karen L. Valihura

Areas of Law: Civil Procedure, Health Law, Insurance Law

A superior court determined State Farm Mutual Auto Insurance Company and State Farm Fire and Casualty Company’s (collectively, “State Farm”) payment practices with Spine Care Delaware, LLC (“SCD”) for medical fees incurred by its Personal Injury Protection (“PIP”) insureds in connection with covered multi-injection spine procedures contravened 21 Del. C. 2118(a)(2). When State Farm received SCD’s charges for a multi-injection procedure performed on one of its PIP insureds, it unilaterally applied a Multiple Payment Reduction (“MPR”) to the charges for injections after the first injection in a manner consistent with Medicare guidelines, paying SCD less than what it charged. SCD sought a declaration that State Farm's application of its MPRs was inconsistent with section 2118(a)(2)’s requirement of reasonable compensation for covered medical expenses, and sought a declaration that State Farm had to pay SCD any reasonable amount charged for PIP-related medical expenses, without applying MPRs. Both parties then moved for summary judgment. The superior court held that State Farm failed to show that the MPR reductions correlated to reasonable charges for the multiple-injection treatments, and thus contravened section 2118(a)(2). On appeal, State Farm contended the superior court incorrectly placed the burden of proof on State Farm to demonstrate that its application of MPRs was reasonable, and that SCD failed to meet its burden of demonstrating that State Farm’s application of MPRs was a failure to pay reasonable and necessary expenses under the statute. Alternatively, State Farm argued that even if it had the burden of proof, it satisfied that burden. The Delaware Supreme Court agreed with State Farm's first premise, that the superior court erred in assigning State Farm the burden of proof. Judgment was reversed and the matter remanded for further proceedings.

Windsor I, LLC v. CWCapital Asset Mgmt, LLC

Court: Delaware Supreme Court

Docket: 443, 2019

Opinion Date: September 10, 2020

Judge: Karen L. Valihura

Areas of Law: Business Law, Civil Procedure, Real Estate & Property Law

Windsor I, LLC appealed a superior court's decision to grant defendants' CWCapital Asset Management LLC (“CWCAM”) and U.S. Bank National Association (“U.S. Bank”) motion to dismiss. Windsor owned a 48,000 square foot commercial property and building encumbered by debt eventually held by U.S. Bank. In 2015, after learning that the Property’s sole tenant intended to vacate, Windsor sought special servicing to refinance the debt. After nearly two years of negotiation and litigation, CWCAM, the special servicer, offered to sell the loan to Windsor in a proposed transaction for $5,288,000, subject to credit committee approval. The credit committee, however, rejected the transaction, and Defendants filed a foreclosure action against Windsor in 2017. Defendants thereafter held an online auction to sell the loan. A Windsor representative participated in the auction. After the auction, Defendants sold the loan to a third party, WM Capital Partners 66 LLC (“WM Capital”), and Windsor ultimately paid $7.4 million to WM Capital in full satisfaction of the loan. In its action seeking relief based upon quasi-contractual theories of promissory estoppel and unjust enrichment, Windsor alleged that but for the credit committee’s arbitrary rejection of the proposed transaction, Windsor would have purchased the note and loan nearly a year earlier for over $2,112,000 less than it paid to WM Capital. The Superior Court ultimately held that Windsor failed to state claims for promissory estoppel and unjust enrichment, and that the claims were barred because Windsor’s representative had agreed to a general release as part of an auction bidding process. Finding no reversible error, the Delaware Supreme Court affirmed dismissal.

Jones v. Secretary of State

Court: Maine Supreme Judicial Court

Citation: 2020 ME 111

Opinion Date: September 8, 2020

Judge: Per Curiam

Areas of Law: Civil Procedure, Election Law

In this challenge to the superior court's judgment on a petition for judicial review challenging a decision of the Secretary of State the Supreme Judicial Court held that execution of the judgment was automatically stayed on appeal. The superior court vacated the Secretary of State's determination that insufficient signatures had been collective to place on the November 2020 ballot a people's veto of An Act to Implement Ranked-choice Voting for Presidential Primary and General Elections in Maine. Appellants moved to stay execution of the judgment pending their appeals to the Supreme Judicial Court. The Supreme Judicial Court dismissed both motions to stay as moot, holding that execution of the judgment was automatically stayed upon appeal.

Red Oak Apartment Homes, LLC v. Strategis Floor & Decor, Inc.

Court: New Hampshire Supreme Court

Docket: 2019-0012

Opinion Date: September 9, 2020

Judge: James P. Bassett

Areas of Law: Civil Procedure, Consumer Law, Products Liability

Plaintiff Red Oak Apartment Homes, LLC, appealed a superior court decision dismissing its complaint against defendant Strategis Floor & Decor, Inc. (Strategis), and dismissing plaintiff’s claims against Strategis on grounds that the court lacked personal jurisdiction. Plaintiff contracted with New Hampshire-based Holmes Carpet Center, LLC to install plank-style flooring in approximately 195 of its apartment units. Holmes recommended vinyl plank flooring that it represented would withstand rental use for many years. The majority of the floors installed by Holmes consisted of Versaclic LVT vinyl plank flooring manufactured by Strategis. The flooring was sold with a fifty-year warranty for residential applications. Shortly after the flooring was installed, plaintiff’s residents and employees began noticing that the flooring was shifting and large gaps were appearing between the flooring planks, near walls, and in doorway thresholds. Holmes performed repair work on the flooring in two of the affected units. Plaintiff thereafter filed a complaint in New Hampshire against Holmes, alleging breach of contract and violations of the Consumer Protection Act. Plaintiff amended its complaint to add: (1) N.R.F. Distributors, Inc. (N.R.F.), a flooring distributor that sold the flooring at issue to Holmes and, although a foreign corporation, was registered to do business in New Hampshire and had a registered business address in Augusta, Maine; (2) eight other defendants, seven of whom were subcontractors hired by Holmes to perform the flooring installation at plaintiff’s properties; and (3) Strategis, a foreign corporation with a principal business address in Quebec, Canada, that marketed and sold the flooring to N.R.F. The New Hampshire Supreme Court concurred with the trial court that plaintiff failed to establish Strategis, through in-state contacts, purposefully availed itself of the protection of New Hampshire's laws. None of Strategis' actions, either separately or jointly, constituted purposeful availment sufficient for the court to exercise personal jurisdiction. Thus, the Court affirmed dismissal of plaintiff's complaint against Strategis.

Crenshaw v. Erskine College

Court: South Carolina Supreme Court

Docket: 27993

Opinion Date: September 9, 2020

Judge: Few

Areas of Law: Civil Procedure, Contracts, Labor & Employment Law

William Crenshaw, a tenured professor of English at Erskine College, filed suit claiming he was wrongfully fired. A jury found in favor of Dr. Crenshaw and awarded him $600,000. However, after review of the College's appeal, the South Carolina Supreme Court determined the trial court properly granted Erskine's motion for judgment notwithstanding the verdict because, as a matter of law, Erskine did not breach its contract with Dr. Crenshaw.

SC Coastal Conservation League v. Dominion Energy

Court: South Carolina Supreme Court

Docket: 27994

Opinion Date: September 9, 2020

Judge: Few

Areas of Law: Civil Procedure, Government & Administrative Law, Utilities Law

At issue in this case was a Public Service Commission order setting rates an electric utility had to pay to solar and other qualifying renewable energy producers for electricity the utility will then sell to its customers. The South Carolina Supreme Court dismissed the appeal because two of the appellants lacked standing to appeal, and the appeal was moot as to the remaining appellant.

Borton & Sons, Inc. v. Burbank Properties, LLC

Court: Washington Supreme Court

Docket: 97690-2

Opinion Date: September 10, 2020

Judge: Yu

Areas of Law: Civil Procedure, Contracts, Real Estate & Property Law

When a lessee does not timely exercise an option contained in a lease agreement, special circumstances may warrant granting them extra time to exercise the option. In this case, petitioner Burbank Properties LLC mailed its notice shortly after the deadline had passed, and the trial court awarded Burbank an equitable grace period to exercise the option on summary judgment where it was undisputed that no valuable permanent improvements were made. The Washington Supreme Court granted review to decide valuable permanent improvements to the property were a necessary prerequisite to granting the equitable grace period. The Court held that granting an equitable grace period was proper only when a lessee made valuable improvements to property that would result in an inequitable forfeiture if the lessee was not given a grace period.