Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

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Roche v. Hyde

Docket: A150459(First Appellate District)

Opinion Date: July 1, 2020

Judge: Streeter

Areas of Law: Business Law, Civil Procedure

In 2006, Ram’s Gate purchased a Sonoma County winery from the Roches. Ram’s Gate later sued the Roches for breach of contract, fraud, and negligent nondisclosure, claiming they withheld seismic information about the property and made misstatements concerning the ability to build on an existing building pad. Protracted litigation ultimately ended with Ram’s Gate dismissing the action, Roche paying nothing to Ram’s Gate, and Ram’s Gate paying most but not all of Roche’s attorney fees. Roche then brought a malicious prosecution suit against Ram’s Gate, two of its members, and their attorney, Hyde, alleging they withheld documents in discovery that would have proved they knew or should have known the seismic information they claimed was kept from them when they bought the property from Roche. The defendants filed unsuccessful special motions to strike the complaint as a strategic lawsuit against public participation (anti-SLAPP motions). The court of appeal affirmed the denial of the motion under Code Civ. Proc., 425.16(b)(1). A cause of action for malicious prosecution fits by definition into the scope of the anti-SLAPP statute but Roche is likely to succeed on the merits and is now entitled to proceed to trial.

Bayramoglu v. Nationstar Mortgage LLC

Docket: C084299(Third Appellate District)

Opinion Date: July 1, 2020

Judge: Cole Blease

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

Plaintiffs Sukru and Gulay Bayramoglu, like many others, sought to modify their home loan in the midst of the 2008 financial crisis. They eventually succeeded in doing so in late 2011, obtaining a lower interest rate and a lower monthly payment from their loan servicer, Nationstar Mortgage LLC (Nationstar). According to plaintiffs, Nationstar, among other things, unlawfully inserted an inflated loan balance, rather than their actual loan balance, in the loan modification agreement. And for that and other reasons, plaintiffs filed suit against Nationstar. The trial court rejected plaintiffs’ claims and granted Nationstar’s motion for summary judgment. According to the court, because plaintiffs had served “factually devoid” responses to Nationstar’s discovery, these responses tended to show that plaintiffs did not possess and could not reasonably obtain needed evidence to support most of their claims. And because, the court further found, plaintiffs never presented evidence to overcome this finding, it granted Nationstar’s motion. On appeal, plaintiffs contended the trial court wrongly found their discovery responses were factually devoid and, even if they were factually devoid, the court nonetheless should have found triable issues of fact precluded summary judgment. After review, the Court of Appeal agreed with the first part of plaintiffs' argument. The trial court found plaintiffs’ interrogatory responses were factually devoid because plaintiffs, rather than directly state responsive facts, told Nationstar that the answers to its interrogatories could be found in certain identified documents. "Although these responses may have been improper and warranted a motion to compel further responses, they were not the equivalent of factually devoid discovery responses." The trial court's decision was reversed to the extent it was grounded on that reasoning.

Alford v. County of Los Angeles

Docket: B293393(Second Appellate District)

Opinion Date: July 1, 2020

Judge: Elizabeth A. Grimes

Areas of Law: Civil Procedure

Plaintiff filed a petition for writ of mandate under Code of Civil Procedure section 1094.5, seeking to overturn the decision to keep his name on the Child Abuse Central Index. The Court of Appeal reversed the trial court's grant of summary judgment in favor of the Department, holding that the Department did not serve notice of its decision in compliance with section 1094.6 and thus the statute of limitations did not bar his petition. Pursuant to section 1094.6, an agency must not add confusing information to the required notice that could mislead affected parties about the timing for seeking judicial review.

In re Chavez

Docket: H046921(Sixth Appellate District)

Opinion Date: July 1, 2020

Judge: Franklin D. Elia

Areas of Law: Criminal Law

In 1994, Chavez was convicted by plea of assault with intent to commit rape, a sex offense requiring sex offender registration under Penal Code section 290 He was sentenced to nine years in state prison. In 1999, Chavez pleaded guilty to failing to register as a sex offender and admitted five strike allegations. Chavez was sentenced to a Three Strikes term of 25 years to life. In 2018, Chavez’s request to be granted early parole consideration under Proposition 57 was denied. Proposition 57 added to the state constitution a provision that any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his primary offense. Chavez filed a petition for a writ of habeas corpus challenging the California Department of Corrections and Rehabilitation’s (CDCR) refusal to grant him early parole consideration. The superior court granted Chavez’s petition, and ordered the CDCR to “provide Chavez with early parole consideration within 60 days.” The court of appeal affirmed. A CDCR regulation, which excluded from eligibility for early parole consideration under Proposition 57 any inmate who had a prior conviction for a sexual offense that required sex offender registration was inconsistent with Proposition 57.