Local Control: Massachusetts Law Provides Stronger Protection Against Sexual Harassment than Federal Law

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on a recent decision by a federal district court applying Massachusetts law that demonstrates the power of tough state antidiscrimination laws. Grossman describes the facts of the case and the differences between Massachusetts and federal law and explains why robust state laws have the power to hold institutions liable when they delegate authority to those who abuse it.

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Marriage of Everard

Docket: D075110(Fourth Appellate District)

Opinion Date: March 30, 2020

Judge: Patricia D. Benke

Areas of Law: Civil Procedure, Family Law

Appellant Kyle Linley Everard (Kyle) appealed a trial court's order granting reciprocal domestic violence restraining orders (DVROs) against Kyle and respondent spouse Valerie Ann Everard (Valerie). In issuing the DVROs, the trial court found, pursuant to Family Code section 6305, both parties acted as primary aggressors and neither acted primarily in self-defense in multiple domestic violence incidents. Kyle claimed the trial court erred in including him in the DVROs based on its admission of an unauthenticated 2013 police report offered by Valerie, which report Kyle claimed was allegedly the exclusive basis for the court's findings against him under section 6305. Because the Court of Appeal conclude substantial evidence in the record supported the court's findings independent of the 2013 police report, and because it further concluded the court's findings satisfied section 6305, the DVRO against Kyle was affirmed.

Dougherty v. Roseville Heritage Partners

Docket: C087224(Third Appellate District)

Opinion Date: March 30, 2020

Judge: Krause

Areas of Law: Consumer Law, Contracts, Health Law, Trusts & Estates

In January 2017, plaintiffs Lori Dougherty and Julie Lee's 89-year-old father passed away while living in Somerford Place, an elder residential care facility owned and operated by defendants Roseville Heritage Partners, Somerford Place, LLC, Five Star Quality Care, Inc., and Five Star Quality Care-Somerford, LLC. In July 2017, plaintiffs sued defendants, alleging elder abuse and wrongful death based upon the reckless and negligent care their father received while residing in defendants’ facility. Defendants appealed the trial court’s denial of their motion to compel arbitration and stay the action, contending the arbitration agreement did not contain any unconscionable or unlawful provisions. Alternatively, defendants argued the court abused its discretion by invalidating the agreement as a whole, rather than severing the offending provisions. The Court of Appeal found the arbitration agreement at issue here was "buried within the packet at pages 43 through 45," and "[b]ased on the adhesiveness of the agreement, and the oppression and surprise present," the Court concluded the trial court properly found the Agreement was imposed on a “take it or leave it” basis and evinced a high degree of procedural unconscionability. Under the sliding scale approach, only a low level of substantive unconscionability was required to render the arbitration agreement unenforceable. Likewise, the Court concurred that the arbitration agreement was substantively unconscionable, "particularly given the accompanying evidence of procedural unconscionability." The Court found no abuse of discretion in the trial court's declination to sever the offending provisions of the agreement, rather than invalidate the entire agreement.

People v. Mariscal

Docket: B262278A(Second Appellate District)

Opinion Date: March 30, 2020

Judge: Laurence D. Rubin

Areas of Law: Criminal Law

Defendant was convicted of two counts of murder, three counts of attempted murder, street terrorism, and possession of a firearm by a felon. In the initial opinion, the court affirmed defendant's convictions but reversed the trial court's imposition of a $200 parole revocation fine and order denying defendant custody credit. On remand from the Supreme Court and in light of People v. Canizales (2019) 7 Cal.5th 591, the Court of Appeal held that the kill zone instruction should not have been given, but that the error was harmless beyond a reasonable doubt in light of the overwhelming evidence that defendant intended to kill all five of the men at whom he shot. The court restated its original opinion without change in all other respects.

Zolly v. City of Oakland

Docket: A154986(First Appellate District)

Opinion Date: March 30, 2020

Judge: Margulies

Areas of Law: Government & Administrative Law, Government Contracts, Tax Law

Oakland requested proposals for franchise contracts regarding garbage and residential recycling services. Following a lawsuit, a settlement provided that WMAC would receive garbage and mixed materials and organics contracts; CWS would receive the residential recycling contract. WMAC and CWS agreed to pay franchise fees to the city, which redesignated part of WMAC’s franchise fee as a fee to compensate the city for the cost of implementing the Alameda County Waste Management Plan, under Public Resource Code 41901. Plaintiffs challenged the fees as improperly imposed taxes under the California Constitution, article XIIIC. The court of appeal affirmed the dismissal of claims concerning the Redesignated Fee as not ripe for adjudication but reversed dismissal as to the franchise fees. A franchise fee, arguably subject to an article XIIIC, section 1(e) exemption, must still be reasonably related to the value of the franchise to be exempt from the “tax” definition. The court cited Proposition 26: To qualify as a nontax 'fee’ under article XIII C, as amended, a charge must satisfy both the requirement that it be fixed in an amount that is 'no more than necessary to cover the reasonable costs of the governmental activity,’ and the requirement that 'the manner in which those costs are allocated to a payor bear a fair or reasonable relationship to the payor’s burdens on, or benefits received from, the governmental activity.