Click here to remove Verdict from subsequent Justia newsletter(s). | New on Verdict Legal Analysis and Commentary | Some Observations on Calls for Senate Reform: Part One of a Two-Part Series | VIKRAM DAVID AMAR | | In this first of a series of columns, Illinois Law dean and professor Vikram David Amar offers four observations about recent calls for reform of the filibuster device in the U.S. Senate. Dean Amar suggests looking at state experiences with supermajority rules, as well as the Senate’s own recent past, and he considers why senators might be reluctant to eliminate the filibuster. He concludes with a comment on President Joe Biden’s suggestion that the Senate return to the “talking filibuster” and praises a suggestion by Senator Tom Harkin (D-IA) that the cloture requirement (currently at 60 votes) could be lowered gradually, the longer a measure under consideration is debated. | Read More |
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California Courts of Appeal Opinions | San Francisco CDC LLC v. Webcor Construction L.P. | Docket: A156669(First Appellate District) Opinion Date: March 19, 2021 Judge: Sanchez Areas of Law: Business Law, Civil Procedure, Construction Law | The Contractors’ State License Law (Bus. & Prof. Code 7031), allows any person who utilizes the services of unlicensed building contractors to sue for disgorgement of all compensation paid for the performance of any act or contract, even when the work performed is free of defects. CDC brought a section 7031(b) claim for disgorgement against Obayashi in 2017, more than eight years after the completion of construction of the InterContinental Hotel in San Francisco. The issue of licensure came to light during litigation concerning construction defects. The trial court dismissed, citing Code of Civil Procedure 340(a), the one-year limitations period for statutory forfeiture or penalty causes of action. The court of appeal affirmed. The one-year statute of limitations applies to disgorgement claims brought under section 7031, and the discovery rule and other equitable doctrines do not. Even if such doctrines applied to statutory disgorgement claims, they would not apply under the circumstances presented under the pleadings. The court also upheld the trial court’s award of $231,834 in contractual attorney fees; the parties’ agreement contemplated the recovery of attorney fees for non-contractual causes of action that are initiated because of an alleged breach of the parties’ contract. | | Clark v. Super. Ct. | Docket: D077711(Fourth Appellate District) Opinion Date: March 19, 2021 Judge: Cynthia Aaron Areas of Law: Civil Procedure, Civil Rights, Government & Administrative Law, Labor & Employment Law | The issue presented for the Court of Appeal in this case centered on whether Alicia Clark exhausted her administrative remedies under the Fair Employment and Housing Act (FEHA) prior to filing suit against her former employer, Arthroscopic & Laser Surgery Center of San Diego, L.P. (ALSC). Clark filed an administrative complaint with the Department of Fair Employment and Housing (DFEH) alleging ALSC committed various acts of employment discrimination against her. While Clark’s DFEH Complaint contained an inaccuracy as to ALSC’s legal name, it clearly and unequivocally reflected Clark’s intent to name ALSC as a respondent. Specifically, Clark’s DFEH Complaint named, as respondents, “Oasis Surgery Center LLC,” and “Oasis Surgery Center, LP,” which are variants of ALSC’s registered business name, “Oasis Surgery Center.” In addition, Clark’s DFEH Complaint referenced the names of her managers, supervisors, and coworkers. The same day that Clark filed her DFEH Complaint, the DFEH issued a right-to-sue notice and Clark filed this action against “Oasis Surgery Center LLC,” and “Oasis Surgery Center, LP.” One week after filing her DFEH Complaint and the initial complaint in this action, Clark filed an amended complaint in this action, properly naming ALSC as a defendant. Notwithstanding that Clark’s DFEH Complaint clearly identified her former employer as the intended respondent, the trial court granted ALSC’s motion for summary judgment as to all of Clark’s FEHA claims brought against it because Clark “named the wrong entity in her DFEH [C]omplaint, and . . . never corrected that omission.” Clark then filed a petition for writ of mandate to the Court of Appeal, requesting that it vacate the trial court’s order granting ALSC’s motion for summary judgment. After considering the text and purpose of the relevant statutory exhaustion requirement, administrative regulations, and applicable case law, the Court of Appeal concluded Clark exhausted her administrative remedies against ALSC. "This is particularly true in a case such as this, in which the plaintiff’s error could not possibly have hampered any administrative investigation or prejudiced the defendant in any judicial proceedings." Accordingly, Clark’s writ petition was granted and the trial court directed to vacate its order granting ALSC’s motion for summary judgment. | | California v. Andahl | Docket: C090707(Third Appellate District) Opinion Date: March 19, 2021 Judge: Renner Areas of Law: Constitutional Law, Criminal Law | Defendant Jason Andahl appealed a July 2019 judgment revoking his probation and executing a prison sentence of seven years eight months imposed in 2018 when he was first placed on probation. The sentence included two prior prison term enhancements of one year under Penal Code section 667.5 (b). Effective January 1, 2020, Senate Bill 136 (2019-2020 Reg. Sess.) amended section 667.5 (b) to limit qualifying prior prison terms to those served for sexually violent offenses, which defendant’s prior offenses were not. The parties did not contest that Senate Bill 136 was retroactive under In re Estrada, 63 Cal.2d 740 (1965). On appeal, defendant claimed he was entitled to the benefit of Senate Bill 136 under the California Supreme Court’s decision in California v. McKenzie, 9 Cal.5th 40 (2020). The Attorney General responded that McKenzie did not govern because the 2018 order at issue here suspended the sentence’s execution, as opposed to its imposition, and was therefore a final judgment for retroactivity purposes. The Court of Appeal concluded that by virtue of the retroactive change in the law, defendant’s one-year enhancements were unauthorized and must be stricken. | | Travis v. Brand | Dockets: B298104(Second Appellate District) , B301479(Second Appellate District) Opinion Date: March 19, 2021 Judge: Wiley Areas of Law: Constitutional Law, Election Law, Government & Administrative Law | After a political action committee and two political candidates successfully campaigned for a ballot measure in a Redondo Beach municipal election, two citizens filed suit against the committee and the candidates, claiming the candidates had controlled the committee, which had used an improper title for itself. The trial court ruled in favor of the committee and candidates, awarding them attorney fees. In consolidated appeals, the Court of Appeal concluded that the nonparties have standing to appeal the judgment; substantial evidence supported the trial court's finding that Rescue was a general purpose committee and that neither candidate controlled it; and the trial court acted beyond its authority by issuing a judgment against nonparties to the action. The court affirmed the trial court's award of attorney fees to defendants, who were unquestionably the prevailing party. Finally, the court denied the request for sanctions because the appeal of the attorney fees was not frivolous. | | People v. Rivera | Docket: A158284(First Appellate District) Opinion Date: March 19, 2021 Judge: Humes Areas of Law: Criminal Law | Rivera pleaded no contest to second-degree murder and admitted a prior strike in exchange for the dismissal of special-circumstances allegations. In 2017, he was sentenced to 35 years to life in prison. Penal Code sections 188 and 189 subsequently limited liability for murder under the doctrines of felony murder and natural and probable consequences, and established a procedure, Penal Code 1170.95, for eligible defendants to petition to have their murder convictions vacated and be resentenced. The trial court denied Rivera’s petition for section 1170.95 relief, finding that Rivera failed to make a prima facie showing of eligibility because he “entered a plea to second-degree murder with malice” and nothing in the record of conviction supported the conclusion that the murder was “anything other than an intentional killing in which [he] harbored such malice.” The court of appeal reversed. A defendant who entered a plea to murder “with malice aforethought” is not categorically incapable of making a prima facie showing under section 1170.95(c). Such a plea is not necessarily an admission that the crime was committed with actual malice. A defendant who stipulated to a grand jury transcript as the factual basis of the plea may make a prima facie showing of eligibility for relief by identifying a scenario under which he was guilty of murder only under a now-invalid theory, even if the record of conviction does not demonstrate that the indictment rested on that scenario. | |
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