Trump’s Upcoming Refusal to Leave Office: The Very Bad News

NEIL H. BUCHANAN

In this second of a two-part series of columns considering the likelihood that President Trump will refuse to leave the White House even if he loses the election, UF Levin College of Law professor and economist Neil H. Buchanan describes the bad news that Trump and his supporters seem likely to use violence to keep him in office.

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Latest Twist in the Flynn Case Highlights the Danger of Judicial Deference to Trump’s Administration

AUSTIN SARAT

Austin Sarat—Associate Provost, Associate Dean of the Faculty, and William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College—comments on a decision by a panel of the U.S. Court of Appeals for the D.C. Circuit holding that U.S. District Judge Emmet G. Sullivan exceeded his power by refusing to grant the Justice Department’s motion to dismiss the case against Michael Flynn, President Trump’s former national security advisor. Sarat explains the relationship between the judiciary and prosecutors and points out that that judicial deference toward prosecutorial decisions can only be reconciled with constitutional governance if prosecutors respect, and are guided by, canons of integrity and professionalism. Sarat argues that the current leadership of the Justice Department shows utter disdain for such canons.

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Pankey v. Petco Animal Supplies, Inc.

Docket: D072779(Fourth Appellate District)

Opinion Date: June 24, 2020

Judge: Richard D. Huffman

Areas of Law: Animal / Dog Law, Civil Procedure, Personal Injury

Plaintiff Andrew Pankey (Andrew) filed a products liability claim against Petco Animal Supplies, Inc., after his son Aidan contracted a rare bacterial infection from a rat purchased at Petco. Aidan later died as a result of complications related to his infection. Andrew alleged, among other things, that Petco was strictly liable for injuries resulting from the sale of the pet rat, which he argued was a product for purposes of strict products liability. The trial court instructed the jury on negligence under ordinary negligence and negligent failure-to-warn theories, as well as three theories of strict products liability: (1) failure to warn, (2) manufacturing defect, and (3) design defect under a risk-benefit test. The jury returned verdicts in favor of Petco. On appeal, Andrew contended the trial court erred by refusing to instruct the jury on an alternative strict liability design defect theory, the "consumer expectations test." He argued there was sufficient evidence from which the jury could have concluded the pet rat purchased from Petco failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. The Court of Appeal affirmed, finding a live pet animal sold in its unaltered state was not a product subject to the design defect consumer expectations theory of strict products liability. The Court therefore did not reach a conclusion regarding applicability of the consumer expectations test or the prejudicial effect of its exclusion.

Universal Home Improvement, Inc. v. Robertson

Docket: A157067(First Appellate District)

Opinion Date: June 24, 2020

Judge: James A. Richman

Areas of Law: Civil Procedure, Legal Ethics

UHI and Lavine, its president, sued five defendants for fraudulent transfer. Following a two-day bench trial, the court held that the transfer was made in satisfaction of an antecedent debt, and entered judgment for defendants. The defendants then moved for costs of proof attorney fees under Code of Civil Procedure section 2033.420(a). A different judge awarded one defendant $35,595 in fees. The court of appeal held that the appeal from the judgment was not well taken and affirmed it. The court rejected an argument that a creditor whose debt is time-barred by the governing limitations period no longer has a “right to payment.” The statute of limitations is an affirmative defense that can be waived. The court struck the costs of proof award as improper. A defendant cannot, at the very inception of litigation, at a time when no discovery had taken place, and no deposition, serve requests for admission essentially seeking responses admitting that plaintiff had no case, and then, if plaintiff ultimately proves unsuccessful, recover costs of proof attorney fees.

California v. Bradley

Docket: C087347(Third Appellate District)

Opinion Date: June 24, 2020

Judge: Ronald B. Robie

Areas of Law: Constitutional Law, Criminal Law

Defendant Stephen Bradley was committed to the custody of the Department of State Hospitals for treatment and confinement as a sexually violent predator. Due to a series of continuances, defendant’s commitment trial did not begin until approximately three years after his probable cause hearing, and one year after he initially requested a trial. On appeal, defendant contended the Court of Appeal should have reversed the trial court’s judgment and order his release because the delay denied him his federal constitutional due process right to a timely trial. To this the Court disagreed and affirmed the trial court.

Bullock v. Superior Court

Docket: A160153(First Appellate District)

Opinion Date: June 24, 2020

Judge: Mark B. Simons

Areas of Law: Criminal Law, Government & Administrative Law

On March 13, 2020, as the COVID-19 pandemic took hold in California, the Superior Court of Contra Costa County announced it would be closed to the public between March 16 and April 1 and ceased conducting most, but not all, proceedings. Bullock, charged with human trafficking and pimping, contends his custodial preliminary hearing should have occurred during the March closure period under Penal Code section 859b, which establishes a 10-court-day timeframe for a preliminary hearing. The court of appeal dismissed Bullock’s petition for a writ of mandate. Good cause to delay the hearing was not established: the Superior Court’s finding that “the unprecedented [COVID-19] pandemic conditions that California was facing directly impacted the court operations” is insufficient. In the absence of a particularized showing of a nexus between the pandemic and the Superior Court’s purported inability to conduct Bullock’s preliminary hearing in a timely fashion, the Superior Court abused its discretion in finding no violation of section 859b. However, Bullock recently pled no contest to one of the charges against him pursuant to a negotiated disposition.

P. v. E.B.

Docket: H046693(Sixth Appellate District)

Opinion Date: June 24, 2020

Judge: Nathan D. Mihara

Areas of Law: Criminal Law

In 1995, E. pleaded guilty to oral copulation with a minor. He successfully completed his probation. In 2011, he sought relief under Penal Code 1203.4. The superior court permitted E. to withdraw his guilty plea and dismissed the complaint. In 2018, the court granted E. a certificate of rehabilitation and later granted E.’s motion to reduce the offense to a misdemeanor. E. was removed from the sex offender registry. E. filed a petition to seal his arrest records under section 851.91. The court denied the petition, finding that E.’s dismissal under section 1203.4 did not satisfy the requirements for section 851.91 relief: “I take ... the use of the word vacate to mean on appeal ... I don’t think … 1203.4 constitutes a vacation of conviction as contemplated" by section 851.91. The court of appeal affirmed. While section 851.91 created a statutory right to have arrest records sealed in certain circumstances, relief under section 1203.4 is not one of those circumstances. E. cannot bootstrap section 1203.4’s requirement that a successful petitioner be released from further “penalties or disabilities” to create an entitlement to relief under section 851.91. Any penalty or disability is the result of actions by the person possessing and using the information, not by the state.

Oliver v. Konica Minolta Business Solutions U.S.A., Inc.

Docket: H045069(Sixth Appellate District)

Opinion Date: June 24, 2020

Judge: Patricia Bamattre-Manoukian

Areas of Law: Labor & Employment Law

Plaintiffs, Konica service technicians, were required to drive their personal vehicles, containing Konica’s tools and parts, to customer sites. Technicians did not report to an office but usually drove from home to the first customer of the day and, at the end of the day, from the last customer to home. Plaintiffs sought wages for time spent commuting to and from the first and last work locations and reimbursement for mileage incurred during those commutes. The court determined that the commute time was not compensable, citing wage order 4-2001 and Labor Code 2802. The court of appeal reversed. If carrying tools and parts in a technician’s personal vehicle during the commute was optional, then the technician was not “subject to the control of [defendant]” for purposes of determining “hours worked.” Even if a technician was required “as a practical matter” to carry tools and parts during the commute, the technician would not be “subject to the control of [defendant]” during the commute if the technician was able to use the time effectively for the technician’s own purposes. However, if a technician was required during the commute to carry a volume of tools and parts that did not allow the technician to use 'the time effectively for his own purposes, the technician would be “subject to the control of [defendant]” for purposes of determining “hours worked” and entitlement to wages. There are triable issues of material fact regarding those issues.

Hanouchian v. Steele

Docket: B291609(Second Appellate District)

Opinion Date: June 24, 2020

Judge: Egerton

Areas of Law: Personal Injury

After plaintiff was attacked suddenly, and without provocation, by two other men at a Phi Mu sorority party at SCUN, he filed suit against members of Phi Mu alleging a claim for negligence based on their alleged failure to follow certain risk management protocols adopted by CSUN and its fraternal organizations pertaining to off-campus events. The Court of Appeal affirmed the trial court's decision sustaining defendants' demurrers and dismissal. The court held that defendants did not owe plaintiff a legal duty to follow CSUN's fraternal organizational safety protocols to prevent a third party criminal attack. In this case, plaintiff cannot allege sufficient facts to establish the high degree of foreseeability necessary to charge defendants with a legal duty to take highly burdensome measures to prevent the type of sudden and unprovoked third party criminal attack that allegedly occurred here. The court also held that defendants' agreement to CSUN's fraternal organization safety protocols does not support a negligent undertaking claim.