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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Paul Blanco's Good Car Co. Auto Group v. Superior Court

Docket: A159623(First Appellate District)

Opinion Date: October 21, 2020

Judge: Needham

Areas of Law: Civil Procedure, Government & Administrative Law

The state filed an unverified complaint against the entities and one of their principals, asserting unfair practices and false advertising. The defendants filed an unverified “Answer” with a general denial of the complaint’s allegations and affirmative defenses. The judge struck the answer as to the entities because they failed to verify the answer as required by Code of Civil Procedure section 446 and asserted only a general denial in contravention of section 431.30(d). The court concluded that section 446(a)'s exception to the verification requirement was coextensive with the Fifth Amendment privilege against self-incrimination and a corporation may not invoke that privilege. In response to a “show cause order” following the defendants’ petition for extraordinary writ relief, the court issued an order noting that the case had been reassigned. After a hearing, a new judge vacated the previous order. The court of appeal agreed that the exception applies to corporations and that the defendants could file a general denial under section 431.30(d), which requires a defendant to answer each material allegation of a verified complaint with specific admissions or denials, but allows a defendant to file a general denial if the complaint is not verified. There is no reason for deeming the state’s complaint verified. The court also noted that an order to show cause, unlike an alternative writ, does not invite the trial court to change the challenged order and that superior court judges generally may not overturn the order of another judge unless the other judge is unavailable.

Guerrero v. Hestrin

Docket: E072470(Fourth Appellate District)

Opinion Date: October 21, 2020

Judge: Raphael

Areas of Law: Civil Rights, Construction Law, Criminal Law

In 2014, a single Riverside County, California Superior Court judge signed 602 orders authorizing wiretaps, which was approximately 17 percent of all wiretaps authorized by all the state and federal courts in the nation. In 2015, the same judge and one other authorized 640 wiretaps, approximately 15 percent of all wiretaps in the country. Plaintiff-appellant Miguel Guerrero was targeted by a wiretap that a Riverside County judge authorized in 2015. Guerrero, who had never been arrested or charged with a crime in connection with the wiretap, wanted to know why he was targeted, and he believed the sheer number of wiretaps in those years raised significant doubts about whether the wiretaps complied with constitutional requirements. Relying on California's wiretap statutes and the First Amendment, he asked a trial court to allow him to inspect the wiretap order, application and intercepted communications. The trial court denied this request. After review, the Court of Appeal determined the trial court applied the wrong standard in considering Plaintiff's application under wiretap statutes, which closely paralleled statutes under federal law. The matter was remanded so that the trial court could properly exercise its discretion, and the Court provided guidance on the appropriate standard. Given this holding on the statutory issue, the Court declined to address the contention, advanced by Guerrero and an amicus brief, that the public had a First Amendment right of access to the wiretap materials.

California v. Wilson

Docket: D074992(Fourth Appellate District)

Opinion Date: October 21, 2020

Judge: Guerrero

Areas of Law: Constitutional Law, Criminal Law

Luke Wilson was convicted by jury on one count of oral copulation of a child 10 years or younger and and three counts of committing a lewd act upon a child. The court sentenced Wilson to an indeterminate prison term of 45 years to life. Wilson appealed, contending: (1) the trial court erred in denying his motion to suppress; (2) the evidence was insufficient to support his convictions under Penal Code section 288(a); (3) he was denied his due process right to notice of the nature of the charges against him; (4) the prosecution knowingly introduced false evidence at trial; (5) the prosecution failed to produce exculpatory evidence before trial in violation of Brady v. Maryland, 373 U.S. 83 (1963); (6) the trial court’s jury instructions and answers to jury questions were incomplete, misstated the law, and were unduly prejudicial; (7) prosecutorial misconduct and the court’s failure to address the misconduct denied him his right to a fair trial; (8) the mandatory sentence was cruel and/or unusual as applied to Wilson; and (9) cumulative error. Finding no merit to any of these contentions, the Court of Appeal affirmed.

In re Nelson

Docket: F079378(Fifth Appellate District)

Opinion Date: October 21, 2020

Judge: Jennifer R.S. Detjen

Areas of Law: Criminal Law

People v. Gallardo (2017) 4 Cal.5th 120 (Gallardo), which limited a sentencing court's factfinding abilities with respect to prior conviction enhancement allegations, does not apply retroactively on collateral review of final convictions. In this case, the Court of Appeal denied the petition for writ of habeas corpus pursuant to Gallardo. The court also held that petitioner is not entitled to relief even if Gallardo is retroactive, because it is readily apparent that petitioner's statement of his own conduct contained in the "Motion for Order Accepting Plea of Guilty" constituted the factual basis for his guilty plea. Therefore, it could properly be considered by the sentencing court — even under Gallardo — in determining the nature of the Oregon convictions. Finally, the court held that petitioner's remaining claims are barred because they were not raised on direct appeal.