Banana Republic or Legalistic Lawlessness?

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan reflects, based on current trends, on what the legal system in the United States will look in a few years. Specifically, Buchanan considers whether the country will become a “banana republic” or whether instead we will see a system of “legalistic lawlessness.”

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Wanke, Industrial, Commercial, etc. v. AV Builder Corp.

Docket: D074392(Fourth Appellate District)

Opinion Date: February 19, 2020

Judge: Dato

Areas of Law: Antitrust & Trade Regulation, Business Law, Construction Law, Contracts

Wanke, Industrial, Commercial, Residential, Inc. (Wanke) was a company that installed waterproofing systems. It sued Scott Keck and another of its former employees in 2008 for trade secret misappropriation after they left Wanke to form a competing business, WP Solutions. The parties entered into a stipulated settlement and later litigated Keck's alleged breach of that settlement agreement. To collect, Wanke filed a creditor's suit against third party AV Builder Corp. (AVB) to recover $109,327 that AVB owed WP Solutions in relation to five construction subcontracts. Following a bench trial, the court entered judgment in Wanke's favor for $83,418.94 after largely rejecting AVB's setoff claims. Invoking assignment principles, AVB contended: (1) Wanke lacked the ability to sue given judgment debtor WP Solutions's corporate suspension; (2) Wanke's suit was untimely under section 708.230 of the Code of Civil Procedure; and (3) the trial court erred in denying its request for warranty setoffs under section 431.70. Rejecting each of these contentions, the Court of Appeal affirmed the judgment

Kinsella v. Kinsella

Docket: D074989(Fourth Appellate District)

Opinion Date: February 19, 2020

Judge: Joan Irion

Areas of Law: Civil Procedure, Family Law

The issues presented by this appeal for the Court of Appeal’s review arose in the procedural context of an anti-SLAPP motion brought by Tamara Kinsella, in defendant Kevin Kinsella’s malicious prosecution complaint. Shortly after Tamara initiated dissolution of marriage proceedings against Kevin, Tamara sued Kevin based on what she contended was his promise, prior to their marriage, that the property and income they acquired during their relationship would belong equally to both of them (Marvin Action). After Tamara voluntarily dismissed the Marvin Action, Kevin sued her for malicious prosecution in the present action. Seeking to have Kevin's malicious prosecution complaint stricken as a SLAPP, Tamara responded with an anti-SLAPP motion. In her effort to establish that Kevin could not show she lacked probable cause to prosecute the Marvin Action, Tamara relied on an interim adverse judgment rule: She (1) presented evidence that the trial court in the Marvin Action denied Kevin's motion for summary judgment, and (2) argued that this interim victory on Kevin's summary judgment motion precluded Kevin from establishing that Tamara lacked the requisite probable cause to file and prosecute the Marvin Action. In opposition, Kevin relied on the fraud exception to the interim adverse judgment rule: He argued that, because Tamara defeated Kevin's summary judgment motion in the Marvin Action by having submitted materially false facts on which the court relied in denying the motion, Tamara was not entitled to rely on the interim adverse judgment rule's presumption that resulted from the denial of his summary judgment motion in the Marvin Action. The trial court ruled that the malicious prosecution complaint was a SLAPP and struck it. Kevin appealed, arguing the trial court erred in determining that he did not establish the requisite probability of prevailing on the merits of his claim against Tamara. The Court of Appeal concurred with Kevin’s argument and reversed.

California v. Turner

Docket: D075788(Fourth Appellate District)

Opinion Date: February 19, 2020

Judge: Dato

Areas of Law: Constitutional Law, Criminal Law

James Turner pled guilty in 2007 to voluntary manslaughter, and admitted a gang allegation. While he was serving his 21- year prison term, the California Legislature enacted Senate Bill No. 1437 making certain changes to murder liability under felony-murder and natural-and-probable-consequences theories and provided a procedure for eligible defendants to petition for recall and resentencing. Turner filed a petition pursuant to newly enacted Penal Code section 1170.95(a), but the trial court summarily denied relief on the ground that he was ineligible as someone who "was not convicted of murder." On appeal, Turner argued section 1170.95 applied to defendants who were charged with murder under a felony-murder or natural-and-probable-consequences theory but pleaded guilty to manslaughter to avoid trial. The Court of Appeal found no ambiguity in the plain language of Senate Bill 1437 as to whether a defendant convicted of manslaughter was entitled to relief. Turner relied on language in section 1170.95 (a)(2) to suggest ambiguity existed. “But even if he were correct, the legislative history demonstrates that Turner is not entitled to relief.” Because the trial court did not err in summarily denying Turner's petition, the Court affirmed its order.

In re: Marriage of Brewster and Clevenger

Docket: H045050(Sixth Appellate District)

Opinion Date: February 19, 2020

Judge: Greenwood

Areas of Law: Family Law

The parties were married for 21 years before seeking dissolution. Both are physicians; they met in medical school. The trial court denied Wife’s request for spousal support orders because she suffered criminal convictions for acts of domestic violence against Husband and had not overcome the rebuttable presumption set forth in Family Code section 43251 against an award of support to a spouse convicted of domestic violence. The court of appeal affirmed, finding substantial evidence to support the trial court’s factual determinations, The court also upheld the characterization of post-separation payments Husband made to Wife by depositing $10,000 into a joint account for Wife’s use in lieu of temporary spousal support, pursuant to the agreement of the parties. The court of appeal rejected an argument that the trial court did not have jurisdiction over temporary spousal support at the time of the trial and did not have jurisdiction to make retroactive orders and that the trial court erred when it found the deposits taxable to Wife and deductible by Husband.

In re: Marriage of Grimes and Mou

Docket: H046035(Sixth Appellate District)

Opinion Date: February 19, 2020

Judge: Danner

Areas of Law: Family Law

The parties married in 2004. Husband filed a dissolution petition in 2016. The trial court held a hearing on property division and permanent spousal support and ordered Wife to transfer half of the funds then in a brokerage account to Husband and ordering Husband to pay directly to Wife his one-half share of the debt owed to her relatives on their loan to the marital community. The court of appeal affirmed. In its order, the trial court listed all of the factors under Family Code section 4320 and stated its findings for each. It considered the parties’ employment and earning histories, earning capacities, assets, obligations, and standard of living in Silicon Valley, and the length of the marriage. The court found that Wife’s “efforts [to find a job] were not appropriately and fully focused.” Only after the court imputed income to her did she “resume work ... just slightly above the imputed earnings rate.” The court concluded that she can obtain a higher-paying position with a potential salary commensurate with what she had earned several years earlier. The findings provide sufficient rationale for the amount and duration of the award.