How Mike Huckabee and Robert Bork Could Help Center Neil Gorsuch

SHERRY F. COLB

Cornell law professor Sherry F. Colb analyzes an unusual comment by former Arkansas Governor Mike Huckabee that a government restriction on the size of people’s Thanksgiving gathering would violate the Fourth Amendment’s guarantee against unreasonable searches and seizures. Colb describes a similar statement (in a different context) by conservative Supreme Court nominee Robert H. Bork during his (unsuccessful) confirmation hearings in 1987 and observes from that pattern a possibility that even as unenumerated rights are eroded, the Court might be creative in identifying a source of privacy rights elsewhere in the Constitution.

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Domestic Linen Supply Co., Inc. v. L J T Flowers, Inc.

Docket: B292863(Second Appellate District)

Opinion Date: December 4, 2020

Judge: Arthur Gilbert

Areas of Law: Arbitration & Mediation

The Court of Appeal affirmed the trial court's order denying a petition to compel arbitration and awarding attorney fees to respondent. The court held that the trial court could reasonably determine that there was no agreement to arbitrate where the form of the rental agreement is deceptive. In this case, the arbitration clause is not above the purchaser's signature, where one would expect to find it. Rather, it is after the purchaser's signature, on the back of the agreement, which is filled from top to bottom with closely spaced lines of small type. Furthermore, appellant's sales representatives are not trained to bring attention to the arbitration clause and there is no mention of arbitration in the personal guaranty. The court agreed with respondent that, under the circumstances, Civil Code section 1717 should apply to make the attorney fee clause mutual, and to award fees to the prevailing party in the contract action. Furthermore, the court concluded that Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515, does not prohibit the award of attorney fees. Finally, the court rejected appellant's claim under the doctrine of unclean hands.

Hildebrandt v. Staples the Office Superstore, LLC

Docket: B294642(Second Appellate District)

Opinion Date: December 4, 2020

Judge: Egerton

Areas of Law: Class Action, Labor & Employment Law

Plaintiff appealed the trial court's grant of summary judgment in favor of Staples. The Court of Appeal held that the trial court erred in applying the class action tolling rules articulated in Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103. The court explained that plaintiff was entitled, due to the pendency of the Wesson and Hatgis class certification proceedings, to claim the benefit of the class action tolling rule established by the United States Supreme Court in American Pipe & Construction Co. v. Utah (1974) 414 U.S. 538, as adopted by Jolly. Therefore, with the exception of the claim for failure to furnish accurate itemized wage statements, the trial court erred in ruling that plaintiff's claims were time barred. In this case, because plaintiff concedes his claim for failure to furnish accurate itemized wage statements is time barred, even if tolling applies, the court affirmed the summary adjudication of that claim. The court reversed summary judgment in all other respects.

People v. Joaquin

Docket: A152786A(First Appellate District)

Opinion Date: December 4, 2020

Judge: Simons

Areas of Law: Criminal Law

In March 2017, Joaquin fired a shotgun at the victim. He was charged with premeditated attempted murder with an allegation that he personally and intentionally discharged a firearm, possessing a firearm having been previously convicted of a felony, and assault with a firearm. The complaint also included a firearm use allegation and a prior prison term allegation. (Penal Code 12022.5(a), 667.5(b).) The prior prison term was based on a conviction for infliction of corporal injury on a spouse or cohabitant. Joaquin pled no contest to attempted murder without premeditation and admitted a firearm use allegation and a prior prison term. The parties stipulated to a 12-year sentence: the seven-year middle term for unpremeditated attempted murder, the four-year middle term for the firearm use allegation, and one year for the prior prison term. The trial court accepted the plea. The court of appeal remanded with directions to strike the one-year prior prison term enhancement. Senate Bill 136, effective January 1, 2020, applies retroactively and prohibits the imposition of the prior prison term enhancement except for a prior prison term served for a sexually violent offense. On remand, the parties may enter into a new plea agreement but, if they do, the court may not impose a longer sentence than that in the original agreement.

Szarowicz v. Birenbaum

Docket: A156312(First Appellate District)

Opinion Date: December 4, 2020

Judge: Richman

Areas of Law: Entertainment & Sports Law, Personal Injury

Szarowicz and Birenbaum played on opposing recreational ice hockey teams in a no-check league. When the puck was hit laterally toward the players’ bench. Szarowicz followed the puck; Birenbaum, who was defending the goal, took several strides parallel to the side of the rink along the players’ bench. The puck ricocheted off the board. Szarowicz intended to slap toward the goal so that his offensive teammate could shoot. Birenbaum collided with him, propelling him into the air, causing him to fall to the ice. Szarowicz was briefly knocked unconscious. He left the ice with assistance and was taken to the hospital. He suffered extensive injuries, including six broken ribs, a dislocated shoulder with three fractured bones, a torn rotator cuff, a fractured sternum, a fractured scapula, and a collapsed lung. Szarowicz sued Birenbaum for negligence and intentional tort. The trial court granted Birenbaum summary judgment, concluding checking is an inherent risk of the game and the assumption of risk doctrine barred Szarowicz from recovering damages. The court of appeal reversed. Summary judgment was inappropriate; a triable issue of material fact exists as to whether Birenbaum breached a limited duty of care owed to Szarowicz not to increase the risks to him beyond those inherent in the game. Szarowicz also raised triable issues of material fact as to his intentional tort claim and his prayer for punitive damages.