Joe, Joey, Joe-Baby, Sexist: Where’s Your Imposter Syndrome?

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman responds to a recent Wall Street Journal op-ed criticizing soon-to-be First Lady Jill Biden for using the academic title she earned. Professor Grossman dissects the op-ed, penned by a retired lecturer at Northwestern University, and explains the deep and pervasive sexism behind it.

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Waterwood Enterprises, LLC v. City of Long Beach

Docket: B296830(Second Appellate District)

Opinion Date: December 18, 2020

Judge: Bendix

Areas of Law: Civil Procedure, Legal Ethics

The Court of Appeal concluded that the trial court abused its discretion in finding that defendant—who lost the only cause of action in the case—was the prevailing party. The court rejected both parties' arguments based on the definition of prevailing party in the attorney fees provision in their contract, explaining that any such definition would not trump the definition of prevailing party in Civil Code section 1717. The court also concluded that the trial court's consideration of the parties' settlement offers in determining which party achieved the greater relief under section 1717's definition of prevailing party was contrary to precedent. The court rejected defendant's argument that it prevailed because it admitted it owed plaintiff a portion of the contractual damages plaintiff was seeking, and the jury's lump sum award was for less than plaintiff's damages claim at trial. The court explained that defendant's argument is inconsistent with section 1717, subdivision (b)(2), under which a defendant who owes a debt becomes a prevailing party by tendering to the plaintiff the full amount owed and alleging such tender in the defendant's answer. The court reversed the amended judgment only insofar as it orders plaintiff to pay defendant's attorney fees. The court affirmed in all other respects, remanding for further proceedings.

State Farm General Insurance Co. v. Oetiker, Inc.

Docket: B302348(Second Appellate District)

Opinion Date: December 18, 2020

Judge: Tangeman

Areas of Law: Construction Law

The Right To Repair Act codifies a comprehensive reform to construction defect litigation applicable to residential dwellings in California. In McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241, the California Supreme Court held that the Act was intended to displace the common law and was the "virtually exclusive remedy not just for economic loss but also for property damage arising from construction defects." In this case, plaintiff raises the same argument in McMillan, contending that the Act applies to bar State Farm's complaint. The Court of Appeal explained that McMillan was distinguishable from this case because the court is dealing with a lawsuit against an individual product manufacturer whose allegedly defective part failed after it was incorporated into the structure, causing damage to the residence. Although non-builders such as product manufacturers are subject to the Act under certain circumstances, the Act treats builders and non-builders differently. Therefore, the court held that, as applied to non-builders such as plaintiff, the Act covers claims based on negligence and breach of contract, but not those based on strict liability and breach of implied warranty. Furthermore, because the statute of repose applies, State Farm's negligence cause of action is time-barred. Thus, the court reversed and remanded with directions to allow the claims based on strict liability and implied warranty to proceed. The court remanded to the trial court with directions to vacate the order granting summary judgment without prejudice to a motion for summary adjudication on the negligence cause of action.

In re A.G.

Docket: H047951(Sixth Appellate District)

Opinion Date: December 18, 2020

Judge: Bamattre-Makoukian

Areas of Law: Family Law, Juvenile Law

Based on a Welfare and Institutions Code section 300(b)(1) petition, A.G, then four years old, was placed into protective custody after his mother, S.B., twice drove a car in which A.G. was a passenger while she was under the influence. Mother's reunification services were terminated at the 12-month review hearing. At a selection and implementation hearing, S.G. requested a contested hearing on statutory exceptions to adoption and the termination of parental rights: the beneficial parental relationship and the sibling relationship. The court found her offer of proof insufficient, denied her request for a contested hearing, found the minor adoptable, and terminated S.G.'s parental rights. The court of appeal reversed the denial of a contested hearing. The offer of proof must address two components of the parental relationship exception: the parent’s regular contact with the child and the existence of a beneficial parent-child relationship. It need not address whether the existence of that relationship constitutes a compelling reason for determining that termination would be detrimental to the child. S.G.'s offer of proof was adequate, addressing both her regular contact with A.G. and the existence of a beneficial parent-child relationship. Because the termination of parental rights is at stake, the court, particularly where the parent’s regular contact with the child is not in dispute, should exercise caution before denying a contested hearing and should construe the parent’s offer of proof liberally.

11 Lagunita, LLC v. California Coastal Commission

Docket: G058436(Fourth Appellate District)

Opinion Date: December 18, 2020

Judge: Moore

Areas of Law: Government & Administrative Law, Zoning, Planning & Land Use

Generally, the California Coastal Act required a Coastal Development Permit (CDP) for any development in the coastal zone. This case involved a CDP issued by the Coastal Commission in 2015 for the reinforcement of an existing seawall, which had been installed years earlier at the base of a 1950’s era Laguna Beach home. Significantly, a condition of the CDP provided it would expire and the seawall would have to be removed if the home were “redeveloped in a manner that constitutes new development.” The homeowners reinforced the seawall, but they also remodeled the home without consulting the California Coastal Commission. The Coastal Commission found that the homeowners had violated the CDP by redeveloping the residence in a manner that constitutes new development. The Commission issued a cease and desist order requiring the removal of the seawall and further imposed a $1 million administrative penalty for the violation. The homeowners challenged those orders in court by filing a petition for writ of mandate. The trial court denied the petition for writ of mandate as to the cease and desist order (affirming the Coastal Commission’s ruling); the court granted the petition as to the penalty (reversing the Commission’s ruling). The homeowners filed an appeal as to the cease and desist order. The Commission filed a cross-appeal as to the penalty. The City of Laguna Beach (the City) filed an amicus brief in support of the homeowners. The Court of Appeal found no abuse of discretion as to Coastal Commission’s penalty order. The homeowners have shown no basis for this court to absolve them of the properly imposed $1 million administrative penalty. The Court therefore affirmed the trial court’s ruling as to the cease and desist order and reversed the court’s ruling as to the administrative penalty.