What Good Is a Treaty That Congress Can Simply Discard? Quite a Bit, as the Creek Nation’s Victory in the Supreme Court Shows

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the recent decision by the U.S. Supreme Court in McGirt v. Oklahoma, holding that a substantial portion of the state of Oklahoma is an Indian reservation of the Creek Nation. Dorf observes that the majority’s approach in McGirt makes it more likely that courts will find the existence of reservations for other tribes, but there could be collateral consequences in many other contexts.

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Torrecillas v. Fitness International, LLC

Docket: B296194(Second Appellate District)

Opinion Date: July 21, 2020

Judge: Wiley

Areas of Law: Arbitration & Mediation

The Court of Appeal reversed the trial court's denial of Fitness's motion to compel arbitration in an employment dispute with plaintiff. The court held that the arbitration agreement was not procedurally unconscionable where both the 2008 and 2013 agreements had no elements of surprise. Furthermore, plaintiff failed to point to any instances of oppression. The court also held that the arbitration agreement was not substantively unconscionable where plaintiff's deal with Fitness does not shock the conscience, for its terms are standard rather than shocking. Finally, the court rejected plaintiff's claim of issue preclusion.

Hein v. Hein

Docket: F076581(Fifth Appellate District)

Opinion Date: July 21, 2020

Judge: Donald R. Franson, Jr.

Areas of Law: Family Law

In this marital dissolution case, mother contends that the trial court did not properly determine father's annual gross income under Family Code section 4058 and thus erred in calculating the amount of child support owed. After the trial court issued its decision, the Court of Appeal decided the question of statutory construction involving depreciation in In re Marriage of Rodriguez (2018) 23 Cal.App.5th 625, 635. In Rodriguez, the court held that a self-employed parent's depreciation deductions for motor vehicles did not constitute expenditures required for the operation of the business for purposes of section 4058, subdivision (a)(2). The court now extends the statutory interpretation for motor vehicles to depreciation deductions for equipment and other assets used in the self-employed parent's businesses. The court explained that the term "expenditure" describes an actual outlay of cash. The court held that claiming a depreciation deduction on an income tax return does not require an outlay of cash and thus does not reduce the funds available for child support. The court also held that the burden of proving that the expenses claimed on the tax returns constitute expenditures required for the operation of the businesses is properly allocated to the self-employed parent who controls the corporations. Accordingly, the court reversed and remanded for further proceedings.

In re T.S.

Docket: B293453(Second Appellate District)

Opinion Date: July 21, 2020

Judge: Dennis M. Perluss

Areas of Law: Family Law

The Court of Appeal reversed the juvenile court's orders terminating jurisdiction over 10 year old T.S. and six year old Christian pursuant to Welfare and Institutions Code section 364, granting sole legal and physical custody to the children's mother; and granting visitation to father. The court held that father was entitled to an evidentiary hearing before the juvenile court terminated jurisdiction and issued exit orders; the juvenile court properly requested an offer of proof; and father's offer of proof was sufficient to warrant an evidentiary hearing.

Moreno v. Cal. State Teachers' Retirement System

Docket: C089558(Third Appellate District)

Opinion Date: July 21, 2020

Judge: Louis Mauro

Areas of Law: Government & Administrative Law, Labor & Employment Law, Public Benefits

The California State Teachers’ Retirement System (CalSTRS) determined that Ernest Moreno’s retirement benefits had been incorrectly calculated and initiated proceedings to adjust Moreno’s retirement benefits and collect the overpayment. The trial court denied Moreno’s petition for writ of administrative mandamus challenging the CalSTRS actions. Moreno appealed, contending: (1) CalSTRS’s adjustment of his retirement benefits and collection of the overpayment were barred by the statute of limitations found in Education Code section 22008 (c) because CalSTRS was on inquiry notice of the problem as early as 2008; and (2) CalSTRS should have been equitably estopped from adjusting his retirement benefits and collecting the overpayments. After review, the Court of Appeal concluded: (1) CalSTRS was not on inquiry notice of the reporting error that led to overpayment until December 2014 when it began an audit of Moreno’s retirement benefits, and, therefore, CalSTRS’s adjustments to Moreno’s retirement benefits and collection of overpayments were not barred by the statute of limitations; and (2) CalSTRS was not equitably estopped because CalSTRS was not apprised of (or on notice about) the overpayments until December 2014.