Is Retribution Worth the Cost?

SHERRY F. COLB

Cornell law professor Sherry F. Colb discusses the four purported goals of the criminal justice system—deterrence, incapacitation, retribution, and rehabilitation—and argues that retribution may preclude rehabilitation. Colb considers whether restorative justice—wherein a victim has a conversation with the offender and talks about what he did to her and why it was wrong—might better serve the rehabilitative purpose than long prison sentences do.

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The Other Epidemic

KATHRYN ROBB

Kathryn Robb, executive director of CHILD USAdvocacy, comments on a public-health crisis that is getting relatively less attention right now: the scourge of child sex abuse. To address this crisis, Robb calls for greater public awareness, stronger laws protecting children, and legislative action

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Citizens for Responsible Caltrans Decision. v. Department of Transportation

Docket: D074374(Fourth Appellate District)

Opinion Date: March 24, 2020

Judge: Patricia D. Benke

Areas of Law: Civil Procedure, Environmental Law, Government & Administrative Law

In 2017, the California Department of Transportation (Caltrans) released a final environmental impact report (FEIR) for the construction of two freeway interchange ramps connecting Interstate 5 and State Route 56 (SR 56) (the Project). However, before the public comment period for the FEIR commenced and without issuing a notice of determination (NOD), Caltrans approved the Project a few days later and then filed a notice of exemption (NOE) two weeks later. The NOE stated that the Project was exempt from the California Environmental Quality Act (CEQA) pursuant to Streets and Highways Code section 103,1 which was enacted January 1, 2012. Citizens for a Responsible Caltrans Decision (CRCD) did not become aware of the NOE filing until after the 35-day statute of limitations period for challenging the NOE had run. CRCD filed a petition for writ of mandate and declaratory relief alleging, inter alia, that Caltrans erroneously claimed the Project was exempt from CEQA under section 103 and that Caltrans is equitably estopped from relying on the 35-day statute of limitations for challenging notices of exemption. Caltrans demurred to the petition on the grounds that the causes of action were barred by the applicable statute of limitations and that the Project was exempt from CEQA under section 103. CRCD opposed the demurrer. On appeal, CRCD contended the trial court erred by sustaining Caltrans's demurrer to the petition because: (1) section 103 did not exempt Caltrans from complying with CEQA in its approval of the Project; and (2) the petition alleged facts showing equitable estoppel applies to preclude Caltrans from raising the 35-day statute of limitations. The Court of Appeal agreed that the court erred by sustaining Caltrans's demurrer and therefore reversed the judgment of dismissal.

In re D.S.

Docket: D076517(Fourth Appellate District)

Opinion Date: March 24, 2020

Judge: Guerrero

Areas of Law: Civil Procedure, Family Law, Government & Administrative Law, Native American Law

M.J. (Mother) appeals the order entered following the jurisdiction and disposition hearing in the juvenile dependency case of her minor child, D.S. D.S. was living with his paternal aunt (Aunt), later determined to be his presumed mother. The Agency alleged D.S.'s father was deceased, Mother had previously caused the death of another minor, and Aunt was no longer able to care for D.S. As discussed in the detention report, Mother's parental rights were terminated after she was charged and convicted of killing D.S.'s brother. D.S. had been placed in the care of his father, who subsequently died suddenly in March 2018. Aunt assumed care for D.S., but reported to the Agency that she could not currently care for D.S. due to her own health issues. In a report prepared for the jurisdiction and disposition hearing, the Agency detailed its inquiry into whether the Indian Child Welfare Act applied to the proceedings. The Agency stated: (1) Mother denied having any Indian heritage; (2) D.S.'s great-grandmother stated that her great-grandmother (D.S.'s great-great-great-great-grandmother) was "affiliated with the Sioux and Blackfeet tribes;" (3) Aunt denied that she or [her grandmother] have ever lived on an Indian reservation, have a tribal enrollment number or identification card indicating membership/citizenship in an Indian tribe; and (4) Aunt denied she has any reason to believe D.S. was an Indian child. Mother contended the court erred by not complying with the inquiry provisions of the Indian Child Welfare Act. The Court of Appeal concluded after review that the juvenile court's finding that the Agency completed its further inquiry was supported by the evidence. Similarly, there is substantial evidence supporting the juvenile court's conclusion that "there is no reason to believe or know that [ICWA] applies."

Lopez v. Ledesma

Docket: B284452(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Elwood G.H. Lui

Areas of Law: Civil Procedure, Personal Injury

In the absence of any clear legislative statement on the issue, a physician assistant acts within the scope of his or her license for purposes of Civil Code section 3333.2, subdivision (c)(2) if he or she has a legally enforceable agency agreement with a supervising physician, regardless of the quality of actual supervision. After plaintiff prevailed in her negligence claims, the trial court awarded noneconomic damages, but reduced them under section 3333.2, subdivision (b). The Court of Appeal affirmed the trial court's reduction of the damages awarded, rejecting plaintiff's claim that the negligence of the physician assistants is included within the scope of the proviso excluding certain conduct from statutory damages because the physician assistants acted without the supervision of a physician in violation of the governing statutes and regulations.

Spencer v. Mowat

Docket: B295738(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Laurence D. Rubin

Areas of Law: Civil Rights, Constitutional Law

Plaintiffs filed suit against the Lunada Bay Boys, alleging that defendants, sometimes with the tacit approval of city officials who did nothing to stop them, engaged in what is known as "localism" – a practice of keeping outsiders away from the surf site through threats and violence. The Court of Appeal affirmed the trial court's denial of Defendant Thiel and Mowat's anti-SLAPP motions, holding that defendants failed to establish that the cause of action arose from protected activity. In this case, the causes of action against Thiel and Mowat are pursued on a theory of conspiracy – conspiracy being a doctrine of liability and not a cause of action itself. The court focused on the tortious acts in which defendants are alleged to have conspired – the harassment of non-locals, the trail-obstructing, the rock-throwing, the running over with surfboards, the punching, the theft, the vandalism, the sexual harassment, the threats, and the intimidation. The court concluded that none of the actions are protected speech or petitioning activity.

Reeve v. Meleyco

Docket: C085867(Third Appellate District)

Opinion Date: March 24, 2020

Judge: Louis Mauro

Areas of Law: Contracts, Legal Ethics

Attorney Robert Reeve sued attorney Kenneth Meleyco to enforce a referral fee agreement after Reeve referred a client to Meleyco but Meleyco did not pay the referral fee. A jury found that Reeve was entitled to recover for breach of contract and also under a quantum meruit theory, and the trial court awarded Reeve prejudgment interest. Meleyco appealed, arguing among other things that Reeve could not recover for breach of contract because the client did not provide written consent to the arrangement, the quantum meruit claim was barred by the applicable statute of limitations, and Reeve was not entitled to prejudgment interest. The Court of Appeal determined Meleyco wrote a letter to the client explaining that the referral fee would not come from the client’s percentage of any settlement, and the client signed an acknowledgement at the bottom of the letter indicating that he received the letter and understood its contents. The client subsequently testified that his acknowledgement expressed his agreement that the referral fee could be paid to Reeve. The Court found the client’s written acknowledgement that he received and understood the letter did not constitute written consent to the referral fee agreement under former California Bar Rule of Professional Conduct 2-200, and the client’s subsequent testimony did not remedy the deficiency. The referral fee agreement was unenforceable as against public policy and Reeve could not recover for breach of contract. Furthermore, the Court agreed with Meleyco that Reeve’s quantum meruit claim was barred by the two-year limitations period.

People v. Wang

Docket: B294888(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Elwood G.H. Lui

Areas of Law: Criminal Law

The Court of Appeal affirmed the trial court's judgment entered after a jury trial in which defendant was convicted of the first degree murders of his mother-in-law and father-in-law. The court held that the erroneous omission of a heat of passion instruction as to the count 2 killing was harmless; the trial court properly denied defendant's request for heat of passion and imperfect self-defense instructions as to the count 1 killing; the trial court did not abuse its discretion in admitting evidence of the 2013 domestic violence incident; the improper admission of the double hearsay evidence of defendant's threat was harmless; the trial court did not abuse its discretion in allowing defendant's wife to testify that she believed defendant was going to get a gun during one of their arguments; the prosecutor did not improperly question defendant about the invocation of his right to remain silent; the prosecutor did not misstate the law or lower the People's burden of proving the element of premeditation and deliberation for first degree murder; defense counsel's failure to call defendant's middle child to testify at trial was a rational tactical choice and did not demonstrate ineffective assistance of counsel; and there was no cumulative error. Finally, the court held that remand for resentencing was unwarranted.

Reynaud v. Technicolor Creative Services USA

Docket: B290836(Second Appellate District)

Opinion Date: March 24, 2020

Judge: Judith Ashmann-Gerst

Areas of Law: Labor & Employment Law, Personal Injury

The Court of Appeal affirmed the trial court's judgment in favor of plaintiffs on their negligence cause of action against Technicolor. The jury found that Technicolor had been negligent and that its negligence was a substantial factor in causing harm to plaintiffs, assigning 95 percent responsibility to Technicolor. After the trial court reduced the jury's damages awards, judgment was entered in the amount of $803,838.30 for economic damages and $2,083,920 for noneconomic damages, for a total award of $2,887,758.30. The court held that substantial evidence supported the verdict where there was substantial evidence that Technicolor could have satisfied the labor verification requirement, and that Technicolor's negligence left plaintiffs in a worse position. The court also held that workers' compensation exclusivity was inapplicable and rejected Technicolor's remaining claims.