He Said/She Said, Save Our Sons, and the Stories that Stick: Part Two of a Two-Part Series of Columns

SHERRY F. COLB

In this second in a series of columns on the U.S. Department of Education’s recent push toward a higher burden of proof in determinations of sexual harassment or assault under Title IX, Cornell Law professor Sherry F. Colb suggests that gendered narratives play a role in people’s willingness to regard an acquaintance rape case as “he said/she said.” Colb describes several examples in which people prefer a story that confirms a pre-existing bias over truth based on evidence.

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Kramer v. Traditional Escrow

Docket: G058522(Fourth Appellate District)

Opinion Date: October 20, 2020

Judge: Moore

Areas of Law: Civil Procedure, Labor & Employment Law

Plaintiff Michelle Kramer filed a wage and hour lawsuit against her employer, defendants Traditional Escrow, Inc. (Traditional), and its alleged alter ego, Annette Scherrer-Cosner. A few months after defendants answered the initial complaint, their counsel withdrew, and defendants subsequently chose not to participate in this case. Plaintiff continued to serve defendants with all case documents, including an amended complaint, at their address of record. But, in violation of the California Rules of Court, defendants changed their mailing address without giving notice to plaintiff or the trial court. As a result, they did not receive any of the documents that plaintiff served on them after their counsel withdrew. Eventually, default and default judgment were entered against them due to their failure to answer the amended complaint. Defendants moved to set aside the default and vacate the judgment, arguing they were entitled to equitable relief because they had been prevented from responding to the amended complaint due to extrinsic fraud and extrinsic mistake. The trial court granted the motion, finding that defendants were unaware the complaint had been amended. It also found that after filing the amended complaint, plaintiff’s counsel misrepresented to Cosner’s divorce attorney, who was unaffiliated with this matter, that defendants were in default and could not file an answer. Plaintiff appealed the trial court’s ruling, arguing equitable relief was unwarranted. To this, the Court of Appeal agreed: "Defendants cannot deliberately neglect this lawsuit and go off-grid, so to speak, and then complain that they lacked notice of the proceedings." The trial court's order was reversed and the matter remanded for further proceedings.

In re Von Staich

Docket: A160122(First Appellate District)

Opinion Date: October 20, 2020

Judge: Kline

Areas of Law: Civil Rights, Constitutional Law, Criminal Law, Health Law

Von Staich is incarcerated at San Quentin State Prison, based on 1986 second-degree murder and attempted murder convictions. In May 2020, he sought habeas corpus relief, citing the COVID-19 pandemic. Shortly thereafter, San Quentin suffered a COVID-19 outbreak that infected approximately 75 percent of the inmate population and dozens of prison staff in just weeks. Von Staich is 64 years old and suffers respiratory problems resulting from bullet fragments lodged in his lung; he claimed that he and a 65-year-old cellmate, both of whom had tested positive for COVID-19 (Van Staich was asymptomatic), were in an extremely small open cell and that there is no opportunity for social distancing. The court directed the Warden to transfer Von Staich to a suitable quarantine location, finding that the Warden and the California Department of Corrections and Rehabilitation (CDCR) have acted with deliberate indifference. There is ongoing federal litigation concerning inadequate medical care due to severe overcrowding in the California correctional system and San Quentin has particular risk factors, caused by the age and architecture of the facility. The court acknowledged that the existing Eighth Amendment violation will continue until the population at San Quentin can be reduced to the 50 percent level. Unless CDCR’s existing expedited release programs are sufficient to promptly achieve this population reduction—which, the sheer numbers indicate they cannot be—CDCR will have to find additional means of releasing or transferring prisoners out of San Quentin.

California v. Marquez

Docket: G058719(Fourth Appellate District)

Opinion Date: October 20, 2020

Judge: Richard D. Fybel

Areas of Law: Constitutional Law, Criminal Law

Mario Marquez appealed a postjudgment order striking his petition for resentencing made pursuant to Penal Code section 1170.95, enacted as part of Senate Bill No. 1437 (2017-2018 Reg. Sess.). The trial court struck Marquez’s petition on the ground that Senate Bill No. 1437 violated article II, section 10, subdivision (c) of the California Constitution by amending Proposition 7 (Ballot Pamp., Gen. Elec. (Nov. 7, 1978)) and Proposition 115 (Ballot Pamp., Primary Elec. (June 5, 1990)). In 2007, a jury found Marquez guilty of first degree murder, second degree robbery, carjacking, willful evasion of a police officer with reckless disregard for the safety of persons or property, and unlawful possession of a firearm by a felon. The trial court sentenced Marquez to a term of 70 years 8 months to life in prison. A panel of the Court of Appeal affirmed the judgment (modified to strike the one-year sentence enhancement under Penal Code 667.5(b). Marquez argued that retroactive application of Senate Bill No. 1437 by means of the petitioning process of section 1170.95 conflicted with the Victims’ Bill of Rights Act of 2008 (Marsy’s Law) and violated the separation of powers doctrine. The Court of Appeal reversed with directions to consider the petition on the merits, and partially published its opinion because the issues of whether Senate Bill No. 1437 conflicted with Marsy’s Law and whether Senate Bill No. 1437 violated the separation of powers doctrine have not been addressed in a published opinion of this division. On those issues, the Court concluded Senate Bill No. 1437 neither conflicted with Marsy’s Law nor violated the separation of powers doctrine. In the nonpublished part of the opinion, the Court concluded Senate Bill No. 1437 did not unconstitutionally amend Proposition 7 or Proposition 115.

People v. Douglas

Dockets: B301302(Second Appellate District) , B306176(Second Appellate District)

Opinion Date: October 20, 2020

Judge: Wiley

Areas of Law: Criminal Law

The Court of Appeal affirmed the trial court's denial of defendant's request for resentencing under Penal Code section 1170.95 and denial of habeas relief. Defendant was convicted of murder after robbing a video store. The court held that defendant was a major participant in a felony who acted with reckless indifference to human life and does not qualify for resentencing. In this case, defendant planned and led an armed robbery; when his partner shot and killed the clerk, defendant reacted as though this development were unfortunate but entirely predictable; and defendant and his gun partner robbed again a few days later, but did not adjust their method in response to the clerk's shooting.