Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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Brown v. TGS Management Co., LLC

Docket: G058323(Fourth Appellate District)

Opinion Date: November 12, 2020

Judge: Richard M. Aronson

Areas of Law: Arbitration & Mediation, Labor & Employment Law

Plaintiff Richard Brown appealed a judgment confirming an arbitration award in favor of defendant TGS Management Company (TGS) in an employment contract dispute. The specific statutory right at issue in the underlying dispute was Brown’s right to work in his chosen field free of contractual restraints on competition. The Legislature expressed that right in the simple but sweeping language of Business and Professions Code section 16600: “Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade or business of any kind is to that extent void.” Brown worked for TGS for over 10 years. During that time, a substantial portion of Brown’s compensation was a yearly bonus which rewarded Brown’s performance over the previous year with a sizable cash award to be paid over the next two years. In February 2016, TGS terminated Brown’s employment without cause effective March 2016. Over the next month, Brown and TGS attempted to negotiate a confidential separation agreement. TGS prepared a settlement offer in the form of a draft separation and general release agreement (the Draft Separation Agreement), but Brown rejected the offer. TGS terminated Brown as planned, making the termination “without cause” so Brown could keep two bonuses he had earned but not yet received (the deferred bonuses), given the two-year bonus structure in place. In October 2016, Brown filed a complaint against TGS stating claims for declaratory relief, injunctive relief, and reformation of the arbitrator-selection process in the Employment Agreement. The declaratory relief claim sought a declaration Brown could compete with TGS without risking a damages claim for breaching the Employment Agreement or jeopardizing his two deferred bonuses. Brown also sought an injunction against enforcement of the covenant not to compete. Ten days after filing the complaint, Brown filed a petition to compel arbitration. TGS consented, and answered, stating it would not seek to enforce the no-compete clause in Brown's contract, but that he forfeited the two bonuses at issue when he filed a copy of the Draft Separation Agreement, which disclosed the identity of TGS' clients and its bonus formula for computing employee bonuses. The arbitrator granted TGS' motion for summary judgment. On appeal, Brown contended the Court of Appeal had to vacate the judgment because the arbitration award exceeded the arbitrator's powers, “and the award cannot be corrected without affecting the merits of the decision[.]” The Court concluded the arbitrator exceeded his power in issuing an award enforcing provisions of an employment agreement which illegally restricted Brown’s right to work. Consequently, judgment was reversed and the matter remanded for further proceedings.

California v. Grant

Docket: D076576(Fourth Appellate District)

Opinion Date: November 12, 2020

Judge: Judith L. Haller

Areas of Law: Constitutional Law, Criminal Law

Defendant Kenneth Grant admittedly stole merchandise from a Wilsons Leather outlet store. Everything there was sold at a discount (as evidenced by a “comparable value” the store displays on tags attached to each product). At trial, the prosecution introduced evidence showing that the cumulative comparable values of the stolen merchandise exceeded the $950 felony theft threshold. However, the prosecution introduced: (1) no evidence establishing that the comparable values represented the merchandise’s actual fair market values; and (2) evidence of actual sales prices for only a few of the stolen products (totaling about $265). Presumably relying on the comparable values, the jury found the value of the stolen merchandise exceeded $950, and convicted Grant of grand theft and burglary. The trial court sentenced him to three years in local custody. On appeal, Grant contended his grand theft conviction must be reduced to petty theft, and his burglary conviction had be reversed, because: (1) the trial court erroneously instructed the jury regarding the definition of fair market value; (2) the trial court failed to instruct the jury regarding the distinction between burglary and misdemeanor shoplifting; and (3) substantial evidence did not support the finding that the value of the stolen merchandise exceeded $950. Even if the jury had been properly instructed, the Court of Appeal concluded its finding regarding the fair market value of the stolen merchandise was not supported by substantial evidence. Accordingly, the Court reduced Grant’s grand theft conviction to petty theft, reversed his burglary conviction, and remanded for resentencing.

People v. Valencia Baltazar

Docket: F078219(Fifth Appellate District)

Opinion Date: November 12, 2020

Judge: Jennifer R.S. Detjen

Areas of Law: Criminal Law

Senate Bill No. 620 gave trial courts previously unavailable discretion to strike or dismiss firearm enhancements otherwise required to be imposed by Penal Code sections 12022.5 and 12022.53. There is no dispute that these statutory amendments apply retroactively to cases in which the judgment was not yet final when Senate Bill No. 620 went into effect. The Court of Appeal dismissed defendant's appeal of the district court's denial of his application to strike the firearm enhancements found true by the jury and added to his sentence. The court explained that Senate Bill No. 620's amendment to section 12022.53, subdivision (h) applies to nonfinal judgments and, by its plain language, extends the bill's benefits to defendants who have exhausted their rights to appeal and for whom a judgment of conviction has been entered but who have obtained collateral relief by way of a state or federal habeas corpus proceeding. Because neither scenario includes defendant, the trial court lacked jurisdiction to modify his sentence. In this case, defendant's judgment became final in 2013, well before the effective date of Senate Bill No. 620.