Latest 6 Cases: Bacall v. Shumway (Arbitration & Mediation), Collondrez v. City of Rio Vista (Civil Procedure), Foster v. Sexton (Civil Rights)

How Not to Criticize the American Rescue Plan Act of 2021

MICHAEL C. DORF

Cornell law professor Michael C. Dorf responds to three broad-based objections by Republican opponents to the American Rescue Plan Act of 2021: (1) that the already-recovering economy doesn’t need stimulus; (2) that many of the Act’s provisions have nothing to do with COVID-19; and (3) that there will be waste, fraud, and abuse. Professor Dorf explains why these objections ring hollow and argues that while the Act is not perfect legislation and will likely face challenges in implementation, it is a much better option than anything Republicans were offering.

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Bacall v. Shumway

Docket: B302787(Second Appellate District)

Opinion Date: March 16, 2021

Judge: Ohta

Areas of Law: Arbitration & Mediation

The Court of Appeal affirmed the trial court's confirmation of an arbitration award against appellants and in favor of respondents in a contract dispute. The arbitrator partially rescinded the contract after finding Appellant Shumway provided legal services without an active license. The court concluded that the trial court was not required to independently review the legality of the 2016 and 2017 agreements at issue; the award does not violate public policy or appellants' statutory rights; the arbitrator did not exceed his powers by finding Shumway engaged in the unlicensed practice of law; the arbitrator did not exceed his powers by ruling that Shumway is personally liable for the award; and the arbitrator did not engage in misconduct. The court declined to impose sanctions against appellants for filing a frivolous appeal and denied without prejudice respondents' request for attorney fees on appeal.

Collondrez v. City of Rio Vista

Docket: A159246(First Appellate District)

Opinion Date: March 16, 2021

Judge: Petrou

Areas of Law: Civil Procedure, Communications Law, Government & Administrative Law, Labor & Employment Law

Rio Vista Officer Collondrez responded to a hit-and-run accident. According to an internal affairs investigation, Collondrez falsified his report, arrested a suspect without probable cause, used excessive force, applied a carotid control hold on the suspect, and failed to request medical assistance. After hearings, the city agreed to pay Collondrez $35,000. Collondrez resigned. The agreement provides that Collondrez's disciplinary reports will only be released as required by law or upon legal process issued by a court of competent jurisdiction, after written notice to Collondrez. Penal Code section 832.71 was subsequently amended to require the disclosure of police officer personnel records concerning sustained findings of dishonesty or making false reports. The city responded to media requests under the Public Records Act for records, giving Collondrez prior notice of only some of the disclosures. Media outlets reported the misconduct allegations. His then-employer, Uber, fired Collondrez. Collondrez sued. The trial court partially granted the city’s to strike the complaint under California’s anti-SLAPP statute, Code of Civil Procedure 425.16, finding that Collondrez had shown a probability of prevailing on his claims for breach of contract and invasion of privacy but not on claims for interference with prospective economic advantage and intentional infliction of emotional distress. The court of appeal reversed in part, in favor of the city. The complaint arises from speech protected by the anti-SLAPP statute, but the trial court erred in finding Collondrez established a likelihood of prevailing two counts.

Foster v. Sexton

Docket: F078387(Fifth Appellate District)

Opinion Date: March 16, 2021

Judge: Donald R. Franson, Jr.

Areas of Law: Civil Rights, Constitutional Law

Plaintiff filed suit alleging that prison officials retaliated against him because he disclosed information to the Office of Internal Affairs of the California Department of Corrections and Rehabilitation (CDCR) about prison officials covering up a murder and he filed administrative grievances addressing misconduct by officials at Corcoran State Prison. Plaintiff filed a petition for a writ of replevin directing prison officials to return his personal property or pay its value. The trial court dismissed the action based on failure to exhaust. The Court of Appeal reversed and remanded for further proceedings. On a question of properly pleading the excuse of unavailability, the court concluded that plaintiff must allege specific facts showing how, when, where, to whom, and by what means the machinations, misrepresentations or intimidations were accomplished. In this case, the papers plaintiff filed in the trial court and in this appeal demonstrate he could amend his petition to allege specific facts showing the administrative process is unavailable to him because prison officials have thwarted his use of the inmate grievance procedure through misrepresentations and machinations.

People v. Hoffman

Docket: B306360(Second Appellate District)

Opinion Date: March 16, 2021

Judge: Kenneth R. Yegan

Areas of Law: Criminal Law

The Court of Appeal affirmed the trial court's judgment committing appellant as a sexually violent predator (SVP). In this case, appellant is a 74-year-old self-admitted child molester, who, in a moment of candor, said that he could not guarantee that he would not molest another child upon release. The trial court believed appellant to the extent that he might molest another child upon release. The court concluded that this credibility determination, coupled with expert testimony, was sufficient to support the SVP determination.

In re F.P.

Docket: B307313(Second Appellate District)

Opinion Date: March 16, 2021

Judge: Victoria M. Chavez

Areas of Law: Family Law

The Court of Appeal affirmed the juvenile court's dispositional orders denying mother visitation with her son and allowing the child's therapist to decide when conjoint counseling should occur. The court concluded that substantial evidence supports the juvenile court's finding that visitation with mother would be detrimental to the child. In this case, the record shows that mother was physically and emotionally abusive to him, hitting, kicking, or pinching him on a regular basis, frequently causing bruises; she often pretended to strike the child and laughed at him when he flinched; and his adult siblings confirmed that they had been abused as children while in mother's care and expressed concern for the child's safety. Furthermore, the child engaged in self-harming behaviors and refused all contact with mother, becoming anxious and stressed when mother made harassing phone calls to his caregiver and insisted on speaking to him. The court also concluded that mother forfeited her challenge to the order for conjoint counseling by failing to raise any objection in the juvenile court. Finally, the juvenile court's decision to order conjoint counseling when deemed appropriate by the child's therapist was not an improper delegation of judicial power.

Zuniga v. Cherry Avenue Auction, Inc.

Docket: F078402(Fifth Appellate District)

Opinion Date: March 16, 2021

Judge: Donald R. Franson, Jr.

Areas of Law: Landlord - Tenant, Personal Injury

The Court of Appeal affirmed the trial court's judgment in favor of plaintiff in an action brought against defendants, the owners and operators of an outdoor swap meet, where plaintiff and her husband rented two vendor spaces. When plaintiff and her husband were setting up their booth, a 28-foot metal pole holding their advertising banner touched an overhead power line. Plaintiff and her husband were electrocuted, and he died. A jury found that defendants were 77.5 percent at fault and plaintiff's damages totaled $12.25 million. Defendants contend that they owe no duty of care to plaintiff because the danger presented by the overhead power line was open and obvious. The court concluded that the evidence presented in this case did not establish as a matter of law that the danger was open and obvious. The court explained that it was not obvious that the line was uninsulated, that it was energized, or that the amount of electricity being transmitted was lethal. Therefore, a warning would not have been superfluous; it would have provided information that was not obvious. The court also concluded that, because no workers' compensation insurance covered the injuries to plaintiff and her husband, the Privette doctrine should not be extended to the landlord-tenant relationship that existed in this case.