Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Coughenour v. Del Taco

Docket: E072772(Fourth Appellate District)

Opinion Date: November 20, 2020

Judge: Miller

Areas of Law: Arbitration & Mediation, Civil Procedure, Contracts, Labor & Employment Law

Plaintiff-respondent Sarah Coughenour worked for defendant-appellant Del Taco, LLC, starting when she was 16 years old. When she was first employed by Del Taco, she signed a “Mutual Agreement to Arbitrate” (Agreement). After Coughenour reached the age of 18, she continued working for Del Taco for four months. Coughenour quit and filed a lawsuit against Del Taco for sexual harassment committed by one of their employees, wage and hour claims brought pursuant to the Labor Code, and other claims under the Fair Housing and Employment Housing Act. Del Taco moved to compel arbitration. The trial court denied the Motion, finding that Coughenour’s filing of the lawsuit was a disaffirmance of the Agreement within the meaning of Family Code section 6710, which allowed a person upon reaching majority age to disaffirm a contract entered into while a minor. Del Taco appealed the denial of its motion, arguing that by working for Del Taco for four months after she reached the age of majority, Coughenour ratified the Agreement, which estopped her power to disaffirm the Agreement. In the alternative, Del Taco argued that Coughenour did not disaffirm the Agreement within a “reasonable time” after reaching the age of 18 as required by Family Code section 6710. The Court of Appeal affirmed denial of Del Taco's motion: [t]he filing of the lawsuit was notice that [Coughenour] disaffirmed the Agreement." The trial court did not abuse its discretion by concluding that Coughenour disaffirmed the Agreement within a reasonable time.

Triyar Hospitality Management v. WSI (II) – HWP, LLC

Docket: B301158(Second Appellate District)

Opinion Date: November 20, 2020

Judge: Arthur Gilbert

Areas of Law: Business Law, Civil Procedure

The Court of Appeal affirmed the trial court's order amending a judgment to add alter ego judgment debtors. After Triyar entered into a contract to purchase a hotel property from WSI, Triyar filed suit against WSI for causes of action including fraud and specific performance. The trial court found that WSI had not breached the contract, because Triyar's failure to learn of the Hyatt agreement's termination was due to Triyar's fault in failing to conduct a sufficient investigation. The trial court then awarded WSI $2,172,615 in attorney fees and costs. After Triyar appealed, the trial court awarded an additional $193,273.20 in fees and costs. After WSI was unable to collect any amount of the judgment, WSI made a motion to amend the judgment to add Steven Yari and Shawn Yari. The trial court found that Triyar is not capitalized for buying major hotels, and the finding that the Yaris were alter egos was a fair outcome. The trial court also found that even if the alter ego doctrine does not strictly apply, the inequities are such that an exception can be made. Under either de novo or abuse of discretion review, the court held that WSI prevailed on its motion to add the Yaris as judgment debtors. In this case, the Yaris concede that they had control of the underlying litigation and were virtually represented in that proceeding. The court also concluded that there is overwhelming evidence of a unity of interest and ownership such that the separate personalities of the entity and the owners do not exist. Furthermore, it would be inequitable to preclude WSI from collecting its judgment by treating Triyar as a separate entity.

Marriage of Sawyer

Docket: H046558(Sixth Appellate District)

Opinion Date: November 20, 2020

Judge: Danner

Areas of Law: Civil Procedure, Family Law

In 2001, a Minnesota state court ordered James to pay $89,582.15 in child support arrears to his ex-wife, Rosemary, for their two children. James was then living in California. In 2005 the Minnesota order was registered for enforcement purposes in Santa Cruz County Superior Court under the Uniform Interstate Family Support Act. In 2018, in connection with registration in California of a renewed judgment from Minnesota, the Santa Cruz County court stayed enforcement of a portion of James’s child support arrears determined by the 2001 Minnesota order because the children had intermittently lived with James between 1993 and 2002. The trial court found the remainder of the arrears enforceable. The Santa Cruz County Department of Child Support Services, which has assisted in the enforcement and collection of James’s child support arrears, contends that the court lacked authority under the Uniform Interstate Family Support Act to stay the arrears owed by James because the 2001 Minnesota order at issue was registered and confirmed in California in 2005, and James did not timely challenge its registration. The court of appeal agreed and reversed the portion of the 2018 order staying enforcement of $28,890 of the arrears, while affirming that the remainder of the arrears ($60,692.15) was enforceable.

Mahon v. City of San Diego

Docket: D074877(Fourth Appellate District)

Opinion Date: November 20, 2020

Judge: Cynthia Aaron

Areas of Law: Civil Procedure, Government & Administrative Law, Tax Law, Utilities Law

Proposition 218, the Right to Vote on Taxes Act, generally required local governments obtain voter approval prior to imposing taxes. Plaintiffs Jess Willard Mahon, Jr. and Allan Randall brought this certified class action against the City of San Diego (City) claiming that the City violated Proposition 218 by imposing an illegal tax to fund the City’s undergrounding program. Specifically, plaintiffs contended the City violated Proposition 218 through the adoption of an ordinance that amended a franchise agreement between the City and the San Diego Gas & Electric Company (SDG&E). The ordinance, together with a related memorandum of understanding, further specifies that part of the money to fund the undergrounding budget will be collected by SDG&E through a 3.53 percent surcharge on ratepayers in the City that will be remitted to the City for use on undergrounding (Undergrounding Surcharge). Plaintiffs claim that the surcharge is a tax. Plaintiffs further claim that the surcharge violates Proposition 218 because it was never approved by the electorate. Plaintiffs note that the City has imposed more than 200 million dollars in charges pursuant to the Undergrounding Surcharge during the class period. Through this action, plaintiffs seek a refund of those amounts, among other forms of relief. The City moved for summary judgment, which the trial court granted on two grounds: (1) the Undergrounding Surcharge constituted compensation for franchise rights and thus was not a tax; alternatively, (2) the Undergrounding Surcharge was a valid regulatory fee and not a tax. After review, the Court of Appeal concluded the trial court properly granted the City’s motion for summary on the ground that the Undergrounding Surcharge was compensation validly given in exchange for franchise rights and thus, was not a tax subject to voter approval.

Big Lots Stores v. Super. Ct.

Docket: D077486(Fourth Appellate District)

Opinion Date: November 20, 2020

Judge: Dato

Areas of Law: Civil Procedure, Labor & Employment Law, Legal Ethics

In this case, the real parties in interest and plaintiffs were former store managers for petitioner-defendant Big Lots Inc., who claimed they spent less than 50 percent of their worktime on managerial tasks and, as a result, should have been paid overtime compensation for hours worked in excess of a standard 40-hour week. Big Lots was an Ohio corporation. When this lawsuit was first filed, it retained a California law firm, Haight Brown & Bonesteel LLP (Haight Brown), as counsel of record. Big Lots later sought the superior court’s permission for attorneys from an Ohio law firm, Vorys, Sater, Seymour & Pease LLP (Vorys), to also represent it. The trial judge ultimately granted applications filed by three different attorneys in the Vorys firm. But after later being advised that these Ohio attorneys were attempting to represent various current and former Big Lots managers in depositions noticed by plaintiffs, the court revoked pro hac vice authorization for all three lawyers. Big Lots petitioned for a writ of mandamus to overturn that order. The Court of Appeal agreed with the trial judge that there was a between an attorney’s representation of the defendant corporation in a lawsuit and his or her representation of current or former employee witnesses. "Pro hac vice admission as to one client does not necessarily allow a lawyer to represent a different client even if substantive law does not otherwise prohibit it." The Court nonetheless concluded the total revocation of pro hac vice status for the Vorys attorneys was not supported by the record then before the trial court. The petition to vacated the revocation order was granted, but the matter was returned to the trial court for additional hearings/orders deemed necessary.

In re Edgerrin J.

Docket: D076461(Fourth Appellate District)

Opinion Date: November 20, 2020

Judge: Dato

Areas of Law: Constitutional Law, Criminal Law, Juvenile Law

After receiving a citizen’s tip that Black males in a Mercedes were “acting shady,” four San Diego Police Department (SDPD) officers drove to the scene in two marked vehicles, activating emergency lights in one. Parking behind the Mercedes, the officers positioned themselves beside each of its four doors and asked the three teenagers inside for their names and identification. A records check later indicated that the driver was on probation subject to a Fourth Amendment waiver. The officers searched the vehicle and recovered a loaded firearm and sneakers linking the minors to a recent robbery. The minors moved to suppress the evidence found in the car, claiming their initial detention was not supported by reasonable suspicion. Finding the encounter was consensual rather than a detention, the juvenile court denied the motions. Two of the minors pleaded guilty to a subset of the charges originally filed. In a consolidated appeal, two of the minors, Edgerrin J. and Jamar D. challenged the denial of their motions to suppress, arguing the juvenile court erred in finding the encounter consensual, and claimed the citizen’s tip did not establish reasonable suspicion to detain them. To this, the Court of Appeal agreed on both points. However, the Court found conflicting evidence as to whether officers knew other facts that might furnish reasonable suspicion for the stop, or justify the detention and search pursuant to Edgerrin’s active Fourth Amendment waiver. Because the rationale for its ruling made it unnecessary for the juvenile court to address these other issues, judgment was reversed and remanded for a new hearing to permit it to assess witness credibility and reach factual findings in the first instance.

Communities for a Better Environment v. Energy Resources Conservation & Development Commission

Docket: A157299(First Appellate District)

Opinion Date: November 20, 2020

Judge: Tucher

Areas of Law: Constitutional Law, Energy, Oil & Gas Law, Environmental Law, Government & Administrative Law, Utilities Law

Environmental groups challenged the constitutionality of Public Resources Code section 25531, which limits judicial review of decisions by the Energy Resources Conservation and Development Commission on the siting of thermal power plants. Section 25531(a) provides that an Energy Commission siting decision is “subject to judicial review by the Supreme Court of California.” The plaintiffs contend this provision abridges the original jurisdiction of the superior courts and courts of appeal over mandate petitions, as conferred by California Constitution Article VI, section 10. Section 25531(b) provides that findings of fact in support of a Commission siting determination “are final,” allegedly violating the separation of powers doctrine by depriving courts of their essential power to review administrative agency findings (Cal. Const., Art. III, section 3; Art. VI, section 1). The court of appeal affirmed summary judgment in favor of the plaintiffs. The Article VI grant of original jurisdiction includes the superior courts and courts of appeal and may not be circumscribed by statute, absent some other constitutional provision. Legislative amendments to section 25531 have broken the once-tight link between the regulatory authority of the Public Utilities Commission (PUC) and Energy Commission power plant siting decisions, such that the plenary power Article XII grants the Legislature over PUC activities no longer authorizes section 25531(a). Section 25531(b) violates the judicial powers clause by preventing courts from reviewing whether substantial evidence supports the Commission’s factual findings.

People v. Daniel

Docket: A157422(First Appellate District)

Opinion Date: November 20, 2020

Judge: Humes

Areas of Law: Criminal Law

In 2015, a jury convicted Daniel of second-degree murder in the death of his girlfriend. He was sentenced to 15 years to life in prison. In 2018, Senate Bill 1437 altered liability for murder under the theories of felony murder and natural and probable consequences and established a procedure, Penal Code section 1170.95, for eligible defendants to seek resentencing. Daniel filed a petition for relief, alleging that he was convicted of murder under the natural and probable consequences doctrine or the felony murder doctrine and could no longer be convicted of murder because of Senate Bill 1437’s changes to the law. The trial court summarily denied the petition, reasoning that the jury was not instructed on either theory of liability and the record showed Daniel was the actual killer. The court of appeal affirmed. Although the judge who ruled on the petition failed to appoint counsel and was not the sentencing judge, both violations of section 1170.95, the errors were harmless. A court’s failure to appoint counsel after a petitioner files a facially sufficient petition for relief is not prejudicial error when records in the court’s own file—here, the jury instructions— demonstrate that the petitioner is ineligible for relief as a matter of law.

People v. Shelp

Docket: B298753(Second Appellate District)

Opinion Date: November 20, 2020

Judge: Kenneth R. Yegan

Areas of Law: Criminal Law

The Court of Appeal held that custody credits do not accrue with each Post Release Community Supervision (PRCS) flash incarceration or jail sanction, thereby shortening the PRCS three-year supervision period. The court stated that the very thought of custody credits whittling down a PRCS supervision period is counter-intuitive and counterproductive. The court exercised its discretion to resolve the appeal, despite claims of mootness, rejecting defendant's claims that custody credits accrue with each PRCS flash incarceration and jail incarceration, and the custody credits automatically shorten the three-year PRCS supervision period. The court explained that PRCS was enacted to rehabilitate nonviolent felons at the local level, not to reward the felon with custody credits that can theoretically reduce the PRCS supervision period to zero. Furthermore, the word "supervision" in PCRS means just that. Because PRCS supervision is not a sentence, the supervision period is not shortened by custody credits. Finally, the court held that this appeal is consistent with People v. Espinoza (2014) 226 Cal.App.4th 635. The court affirmed the order revoking PRCS and ordering 180 days county jail, and order denying motion to terminate PRCS supervision.

People v. Williams

Docket: A157917(First Appellate District)

Opinion Date: November 20, 2020

Judge: Petrou

Areas of Law: Criminal Law

In 1969, then 20-year old Williams and two juveniles committed an attempted robbery of a milkman; the milkman was fatally shot. Williams was convicted of first-degree murder. The court noted that the overwhelming evidence that Williams was present and participated. After serving seven years, Williams was released on parole. In 1979, he committed another murder. Williams was convicted of second-degree murder. In 2019, Williams sought to vacate his 1969 conviction. He cited the sentencing transcript in which the court had stated the crime was “senseless and cruel" but "not deliberate and premeditated,” and the expression of “some doubt" that Williams "did the actual killing’” and a 2014 decision by former Governor Brown reversing a favorable parole recommendation, stating that “Williams’ crime partners shot and killed a milkman.” The court found Williams not eligible for resentencing because he could have been found guilty of first-degree murder under the newly-amended Penal Code 189 as a major participant who acted with reckless indifference to human life in the commission of felony murder. The court of appeal affirmed. The robbery was planned at Williams's home. Williams held the gun, which contained at least three bullets; the court could reasonably infer that Williams had a reasonable expectation that death could result. He had an opportunity to act as a restraining influence on the attempted robbery and the juveniles. After the shooting, the three fled without calling for assistance or attempting to render aid to the victim who did not die at the scene.