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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RGC Gaslamp v. Ehmcke Sheet Metal Co.

Docket: D075615(Fourth Appellate District)

Opinion Date: October 23, 2020

Judge: Dato

Areas of Law: Business Law, Civil Procedure, Construction Law, Real Estate & Property Law

Subcontractor Ehmcke Sheet Metal Company (Ehmcke) recorded a mechanic’s lien to recoup payment due for sheet metal fabrication and installation work done on a luxury hotel project in downtown San Diego. Project owner RGC Gaslamp, LLC (RGC) secured a bond to release the lien. Thereafter Ehmcke filed three successive mechanic’s liens, each identical to the first, prompting RGC to sue it for quiet title, slander of title, and declaratory and injunctive relief. The trial court granted Ehmke’s special motion to strike under the anti-SLAPP statute. The trial court found that Ehmcke met its moving burden because the filing of even an invalid lien was protected petitioning activity. Thereafter, the court found that RGC failed to make a prima facie showing that its sole remaining cause of action for slander of title could withstand application of the litigation privilege. RGC appeals both findings, arguing that the duplicative filing of mechanic’s liens after the posting of a bond was not protected activity. The Court of Appeal concluded after review that RGC erroneously imported substantive requirements of the litigation privilege into the first step of the anti-SLAPP inquiry. Ehmcke met that moving burden once its erroneously excluded reply declarations were considered. With the burden shifted on prong two, RGC failed to make a prima facie showing that the litigation privilege did not bar its slander-of-title cause of action. The anti-SLAPP motion was thus properly granted, and Court likewise affirmed the subsequent attorney’s fees and costs award.

Santana v. FCA US, LLC

Docket: G057244(Fourth Appellate District)

Opinion Date: October 23, 2020

Judge: Raymond J. Ikola

Areas of Law: Civil Procedure, Consumer Law, Products Liability

A jury held defendant FCA US, LLC (Chrysler) liable on three causes of action arising from plaintiff Jose Santana’s defective vehicle: breach of the express and implied warranty under the Song-Beverly Consumer Warranty Act, and fraudulent concealment. After an award of fees and costs, the total judgment amounted to $1,740,169.58. Chrysler contended most of those damages should have been vacated because there was no substantial evidence of fraudulent concealment. To this, the Court of Appeal agreed: Santana’s fraud theory was that Chrysler concealed an electrical defect in Santana’s vehicle. But the Court found there was no evidence Chrysler was aware of the defect until after Santana purchased his vehicle, and thus no evidence that Chrysler concealed it. Because the fraud judgment could not be supported, the separate award of economic damages, the noneconomic damages, and the punitive damages fell with it. In addition, Chrysler contended there was no evidence of a willful violation of the Song-Beverly Act. To this the Court disagreed, finding that by the time Chrysler’s duty to repurchase arose, it was aware of the electrical defect in Santana’s vehicle, which it chose not to repair adequately. The Court affirmed the trial court in all other respects, and remanded the case for the trial court to enter judgment in favor of Chrysler on the fraud cause of action, striking the additional economic damages of $33,839.91, the noneconomic damages of $100,000, and the punitive damages of $1 million.

Carroll v. Commission on Teacher Credentialing

Docket: C083250(Third Appellate District)

Opinion Date: October 23, 2020

Judge: Harry E. Hull, Jr.

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

Plaintiff Kathleen Carroll sued her former employer, defendant California Commission on Teacher Credentialing (Commission), for terminating her employment in retaliation for her reporting Commission mismanagement to the state auditor. Prior to bringing this action, plaintiff appealed her termination to the State Personnel Board (Board), claiming the Commission fired her in retaliation for her whistleblower activities. She also filed a separate whistleblower retaliation complaint with the Board. The Board denied her claims. After the Commission removed the matter to federal court, the district court dismissed the section 1983 claim and remanded the matter to state court. A jury found for plaintiff and awarded her substantial damages. The Commission appealed, contending: (1) the district court’s judgment was res judicata as to this action; (2) the Board’s decisions collaterally estopped this action; (3) the trial court abused its discretion in evidentiary matters by (a) permitting plaintiff’s counsel to question witnesses on and asking the jury to draw negative inferences from the Commission’s exercise of the attorney-client privilege, (b) denying the admission of the Board’s findings and decisions, (c) denying the admission of after-acquired evidence, and (d) denying the admission of evidence mitigating plaintiff’s emotional distress; and (4) the damages award was unlawful in numerous respects. Although the district court’s judgment was not res judicata and the Board’s decisions did not collaterally estop this action, the Court of Appeal reversed, finding the trial court committed prejudicial error when it allowed plaintiff’s counsel to question witnesses on and ask the jury to draw negative inferences from the defendants’ exercise of the attorney-client privilege and did not timely instruct the jury with the mandatory curative instruction provided in Evidence Code section 913. Because judgment was reversed on this ground, the Court did not address the Commission’s other claims of error.

Tellez v. Superior Court

Docket: E074244(Fourth Appellate District)

Opinion Date: October 23, 2020

Judge: Menetrez

Areas of Law: Constitutional Law, Criminal Law

Jeremy Tellez was charged with DUI offenses and sought pretrial mental health diversion. The issue presented for the Court of Appeal's review was which of the two statutes prevailed: Vehicle Code section 23640 or Penal Code section 1001.36. Like the trial court, the Court concluded that Vehicle Code section 23640 prevailed and barred pretrial mental health diversion for defendants charged with DUI offenses. the Court therefore denied Tellez’s petition for a writ of mandate.

The People v. J.W.

Docket: B303310(Second Appellate District)

Opinion Date: October 23, 2020

Judge: Brian M. Hoffstadt

Areas of Law: Criminal Law, Juvenile Law

Consistent with People v. Elizalde (2015) 61 Cal.4th 523, the Court of Appeal held that the routine booking question exception to Miranda v. Arizona (1966) 384 U.S. 436, categorically applies to all of the core booking questions enumerated in Pennsylvania v. Muniz (1990) 496 U.S. 582, 601-602, and authorizes the admission of the defendant's answers to those specific questions into evidence without the need to assess those questions' incriminatory nature on a case-by-case basis. The Court of Appeal affirmed the juvenile adjudication in this case, holding that the trial court did not err in admitting the officer's testimony regarding the minor's answers to the booking questions about his age and date of birth, both of which fall squarely within Muniz's categories of basic biographical data. Therefore, there was sufficient evidence to support the juvenile court's adjudication.

Lacayo v. Superior Court

Docket: A160793(First Appellate District)

Opinion Date: October 23, 2020

Judge: Petrou

Areas of Law: Criminal Law

On February 24, 2020, Lacayo was arraigned for possession of a firearm by a felon and related felonies. He waived his right under Penal Code 859b to a preliminary hearing within 10 court days but did not waive his right to a preliminary hearing within 60 days. On April 24, after the Governor proclaimed a state of emergency due to the COVID-19 pandemic, the parties appeared and announced they were ready to proceed. The court acknowledged it was “the 60th day” but continued the preliminary hearing to April 28, citing the pandemic and the lack of prejudice to Lacayo, who was out of custody. Defense counsel objected but the court cited “exceptional, extraordinary circumstances.” At the April 28 hearing, Lacayo unsuccessfully moved for dismissal. The information was filed on May 5. On June 18, Lacayo moved to set aside the information based on the 60-day rule violation. The People requested dismissal without prejudice and a good cause finding for purposes of section 1387(c)(1), which provides that dismissal does not bar re-filing if “good cause is shown why the preliminary examination was not held within 60 days.” On August 5, the court denied Lacayo’s motion, adding specific facts to establish good cause. Lacayo filed a petition for a peremptory writ. The court of appeal granted relief. There is no good-cause exception to the 60-day rule; the pandemic emergency orders did not extend the rule. The court should not have continued the preliminary hearing beyond April 24 without Lacayo's personal waiver.

People v. Foley

Docket: B299677(Second Appellate District)

Opinion Date: October 23, 2020

Judge: Lee Anne Edmon

Areas of Law: Criminal Law

Defendant was convicted of sexually molesting his two granddaughters, F. and A. The Court of Appeal held that defendant's previous conviction for molesting A.—suffered in an entirely separate proceeding that concluded long before the trial of his offenses against F.— does not fall within Penal Code 667.61, subdivision (e)(4)'s multiple victim circumstance as a matter of law. Therefore, the trial court should not have instructed on the multiple victim circumstance or submitted it to the jury. The court explained that, because sentencing under the One Strike law in the absence of a valid qualifying circumstance is an unauthorized sentence, the One Strike sentences on counts 6, 7, and 8 are unauthorized. The court struck the multiple victim circumstances and remanded for resentencing. The court affirmed in all other respects.

People v. Ford

Docket: B300043(Second Appellate District)

Opinion Date: October 23, 2020

Judge: Nora M. Manella

Areas of Law: Criminal Law

After the People petitioned to extend appellant's involuntary commitment, the state hospital failed to transport appellant to the hearing. Appellant's counsel waived his right to a jury on his behalf and, following a bench trial, the trial court found the People's petition true and extended appellant's commitment. Appellant contends that the trial court erred by, inter alia, deciding in his absence that he was incompetent to decide whether to waive this right, and by accepting his counsel's waiver. The Court of Appeal was unpersuaded by the Attorney General's contention that appellant's presence would have made no difference in the trial court's assessment of appellant's capacity to waive his right to a jury trial. The court explained that, in enacting Penal Code 1026.5, the Legislature envisioned a pre-trial hearing at which the not guilty by reason of insanity defendant is not only present but is also addressed directly by the court concerning his or her right to a jury trial. That the trial court found appellant incompetent in his absence may have deprived him of the opportunity to present his strongest evidence of his own competence. Furthermore, appellant's subsequent testimony at trial suggests that had he been present at the hearing, he might well have been able to dispel any doubt about his capacity to understand the jury-waiver decision. The court rejected the Attorney General's claims to the contrary and held that the violation of appellant's right to be present at the hearing was not harmless beyond a reasonable doubt.

Lares v. Los Angeles County Metropolitan Transportation Authority

Docket: B293850(Second Appellate District)

Opinion Date: October 23, 2020

Judge: Thomas L. Willhite, Jr.

Areas of Law: Labor & Employment Law

MTA's failure to count the days an employee is on California Family Rights Act (CFRA) leave when calculating the 60-day clearance period does not violate the CFRA. Plaintiff, a bus operator for MTA, was terminated from his employment after he had eight non-excluded absences. This appeal concerns the discipline provision in a collective bargaining agreement (CBA) between MTA and the union representing all operations employees of MTA. Under a section of that provision (the absenteeism rule), an employee is subject to progressive discipline, up to and including termination, if he or she has a certain number of absences. To avoid discipline, the employee may remove (or clear) an absence from his or her count by not having any absences for 60 consecutive calendar days. However, certain kinds of absences are expressly excluded from the absenteeism rule, such as an absence covered under the federal Family and Medical Leave Act (FMLA) or the CFRA. The Court of Appeal held that where, as here, an employer's no-fault absenteeism policy provides that an employee may clear absences that otherwise would count for purposes of disciplinary action by working (or being available to work) during a certain clearance period, the employer does not violate the CFRA by extending the absence clearance period by the number of days the employee was on CFRA leave during that period. The court also held that plaintiff failed to raise a triable issue of fact that MTA treats other kinds of unpaid leave differently than CFRA leave. Therefore, the court affirmed the trial court's grant of summary judgment for MTA on plaintiff's claims for retaliation based on his use of CFRA leave, failure to prevent retaliation, and interference with CFRA leave.