Latest 4 Cases: Provost v. YourMechanic, Inc. (Arbitration & Mediation), In re McDowell (Civil Rights), People v. Montelongo (Criminal Law)

Is the So-Called Mandate Without Any Tax Consequences Unconstitutional? And If So, How Should a Court Remedy That? Part Three in a Series Examining Underexplored Issues in the California v. Texas Affordable Care Act Case

VIKRAM DAVID AMAR, EVAN CAMINKER, JASON MAZZONE

In this third of a series of columns examining underexplored issues in the California v. Texas case challenging the Affordable Care Act (ACA), Illinois law dean Vikram David Amar, Michigan Law dean emeritus Evan Caminker, and Illinois law professor Jason Mazzone consider whether the so-called individual mandate of the ACA, now without any tax consequences, is unconstitutional, as the challengers argue. The authors explain why, in their view, the challengers are incorrect, regardless of whether the word “shall” in the ACA is interpreted as obligatory or not.

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Provost v. YourMechanic, Inc.

Docket: D076569(Fourth Appellate District)

Opinion Date: October 15, 2020

Judge: Patricia D. Benke

Areas of Law: Arbitration & Mediation, Labor & Employment Law

Defendant YourMechanic, Inc. sought to compel plaintiff Jonathan Provost to arbitrate whether he was an “aggrieved employee” within the meaning of the California Labor Code before he could proceed under the Private Attorneys General Act of 2004 (PAGA) with his single-count representative action alleging various Labor Code violations against company. The Court of Appeal determined that requiring Provost to arbitrate whether he was an “aggrieved employee” with standing to bring a representative PAGA action would have required splitting that single action into two components: an arbitrable “individual” claim and a nonarbitrable representative claim. The Court concluded that a PAGA-only representative action was not an individual action at all, but instead was one that was indivisible and belonged solely to the state. Therefore, YourMechanic could not require Provost to submit by contract any part of his representative PAGA action to arbitration. The trial court therefore properly denied YourMechanic's motion.

In re McDowell

Docket: A157020A(First Appellate District)

Opinion Date: October 15, 2020

Judge: Burns

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

McDowell and Hutchison planned and executed a burglary and an attempted armed robbery of a drug dealer. Hutchison shot and killed the drug dealer. McDowell was sentenced to life imprisonment without the possibility of parole after a jury convicted him of first-degree murder and found true robbery-murder and burglary-murder special circumstances. McDowell filed a habeas corpus petition, challenging the special circumstance findings. The California Supreme Court returned the case to the court of appeal with directions to reconsider the case in light of its 2020 Scoggins opinion. The court of appeal again concluded that the special circumstance findings are adequately supported. Under the first-degree felony-murder rule, a defendant who aided and abetted the underlying felony but was not the actual killer may only be subject to life imprisonment without parole if the prosecution proves special circumstances: either the defendant intended to kill or aided and abetted the commission of a specified felony “with reckless indifference to human life and as a major participant.” McDowell helped plan the robbery, knocked on the door, and entered first, brandishing a knife to facilitate Hutchison’s entrance. McDowell’s decision to arm himself should be viewed in combination with the particularly risky crime that he planned —a home invasion robbery of a methamphetamine dealer. The potential for violence was obvious. McDowell had an opportunity to restrain Hutchison, or otherwise intervene, either when he entered the house and realized they would be outnumbered or after Hutchison fired a warning shot.

People v. Montelongo

Docket: B294095(Second Appellate District)

Opinion Date: October 15, 2020

Judge: Segal

Areas of Law: Criminal Law, Juvenile Law

The Court of Appeal affirmed defendant's sentence of life without the possibility of parole plus one year for robbery and felony murder with a special circumstance finding under Penal Code section 190.2, subdivision (a)(17), which mandates a sentence of death or life in prison without the possibility of parole. Defendant was 18 years old at the time that he stabbed and killed a 15 year old boy. The court held that the felony murder special circumstance statute is not unconstitutionally vague as applied to defendant where the trial court instructed the jury on the independent felonious purpose rule, and defendant had notice of the conduct proscribed by section 190.2 and does not claim discriminatory prosecution. The court explained that the fact that the prosecutor had discretion to charge defendant under two statutes with different penalties does not render the statutory scheme unconstitutional. The court also held that defendant's sentence is not cruel and unusual under the Eighth Amendment; defendant forfeited his right to challenge the restitution fine and assessments; and the trial court's sentencing minute order and the abstract of judgment must be corrected because the trial court erred in imposing a parole revocation fine.

Garcia-Brower v. Premier Automotive Imports of California, LLC

Docket: A156985(First Appellate District)

Opinion Date: October 15, 2020

Judge: Sanchez

Areas of Law: Labor & Employment Law

Labor Code section 432.7 prohibits an employer from asking a job applicant to disclose any conviction that has been judicially dismissed and bars an employer from using any record of a dismissed conviction as a factor in the termination of employment. Molina was hired by Premier in 2010; she did not disclose a dismissed 2010 conviction for misdemeanor grand theft on her job application. She passed Premier’s criminal background check and had been working for four weeks when the DMV mistakenly reported that Molina had an active criminal conviction. Rather than investigate the discrepancy, Premier terminated Molina for “falsification of job application,” although she explained that her conviction had been dismissed. The DMV issued a corrected notice three weeks later. Molina was not rehired and filed a retaliation complaint with the Labor Commissioner, which determined that Molina had been unlawfully discharged and ordered her reinstatement with back pay. Premier’s administrative appeal was denied. When Premier did not comply, the Commissioner filed an enforcement action. The court of appeal reversed the dismissal of the suit. Premier was not entitled to judgment as a matter of law. The Commissioner presented sufficient evidence that Premier was aware or had reason to believe that Molina’s criminal conviction had been dismissed and to allow a jury to infer that Premier retaliated against Molina for failing to disclose her dismissed conviction and that Premier used the dismissed conviction as an impermissible factor in her termination.