Rethinking Retroactivity in Light of the Supreme Court’s Jury Unanimity Requirement

MICHAEL C. DORF

In light of the U.S. Supreme Court’s decision Monday in Ramos v. Louisiana, in which it held that the federal Constitution forbids states from convicting defendants except by a unanimous jury, Cornell law professor Michael C. Dorf discusses the Court’s jurisprudence on retroactivity. Dorf highlights some costs and benefits of retroactivity and argues that the Court’s refusal to issue advisory opinions limits its ability to resolve retroactivity questions in a way that responds to all the relevant considerations.

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Ajaxo, Inc. v. E*Trade Financial Corp.

Docket: H042999(Sixth Appellate District)

Opinion Date: April 23, 2020

Judge: Eugene M. Premo

Areas of Law: Business Law, Contracts, Intellectual Property

In 2003, jury found E*Trade liable for trade secret misappropriation and for breach of a mutual nondisclosure agreement with Ajaxo. The jury awarded damages only for the breach of contract after the court granted a nonsuit on the issue of damages for trade secret misappropriation. On remand, in 2008, a jury found no net damages for unjust enrichment and awarded nothing. The court denied Ajaxo’s request to seek a reasonable royalty under the California Uniform Trade Secret Act (Civ. Code 3426-3426.11). On second remand, the court held a bench trial, declined to award any royalty, and awarded E*Trade its costs as the prevailing party. The court of appeal affirmed. The trial court did not abuse its discretion by declining to award any reasonable royalty despite the available evidence from which a reasonable royalty theoretically might have been derived, considering its findings on the evidence, application of apportionment principles from patent law, exclusion of expert testimony and analysis of Ajaxo’s royalty model, and treatment of the “Georgia-Pacific factors” for determining a royalty rate in intellectual property disputes. The trial court did not err in its prevailing party determination and costs award despite the practical effect of Ajaxo having already obtained full satisfaction of what became a separate, final judgment in its favor following the 2006 remittitur from the first appeal, including costs.

Pinter-Brown v. The Regents of the University of California

Docket: B290086(Second Appellate District)

Opinion Date: April 23, 2020

Judge: Stratton

Areas of Law: Civil Rights, Constitutional Law

Plaintiff filed suit against The Regents for gender discrimination based on a series of events that took place while she was a Professor of Medicine at UCLA. The jury found in favor of plaintiff, awarding her economic and noneconomic damages. The Court of Appeal reversed and held that the trial court committed a series of grave errors that significantly prejudiced The Regents' right to a fair trial by an impartial judge. In this case, the trial court delivered a presentation to the jury highlighting major figures in the civil rights movement, and told the jury their duty was to stand in the shoes of Dr. Martin Luther King and bend the arc of the moral universe toward justice; the trial court allowed the jury to hear about and view a long list of discrimination complaints from across the entire University of California system that were not properly connected to plaintiff's circumstances or her theory of the case; the trial court allowed the jury to learn of the contents and conclusions of the Moreno Report, which documented racial discrimination occurring throughout the entire UCLA campus; and the trial court allowed plaintiff to resurrect a retaliation claim after the close of evidence despite having summarily adjudicated that very claim prior to trial. The court held that these errors were cumulative and highly prejudicial, and were evidence of the trial court's inability to remain impartial, creating the impression that the trial court was partial to plaintiff's claims.

California v. Landowski

Docket: C080210(Third Appellate District)

Opinion Date: April 23, 2020

Judge: Andrea Lynn Hoch

Areas of Law: Constitutional Law, Criminal Law

Defendant Michael Reyes, Jr., an active Norteno gang member (from the Broderick Boys subset), confronted a former Norteno gang member (from the Franklin Boys subset), "S.," about a physical altercation that occurred between S. and Reyes’s stepfather over a debt. That earlier altercation had taken place in front of Reyes’s autistic younger brother. Reyes pulled out a handgun and asked S. if he had a problem. S., who was riding his bicycle with his wife, "R.," when Reyes confronted him with the gun, stopped briefly, told Reyes to put the gun down if he wanted to fight, and then started to ride away. This angered Reyes, prompting him to fire six rounds at S. from behind. S. Was hit but survived. R. Was a short distance in front of S., but was not hit. Defendants Liberty Landowski and Lisa Humble were with Reyes at the time of the shooting and aided in his efforts to avoid being apprehended by law enforcement authorities. Reyes, Landowski, and Humble were tried together before the same jury. Reyes was convicted of one count of attempted murder (Count 1), two counts of assault with a semiautomatic firearm (Counts 2 and 4), one count of possession of a firearm by a convicted felon (Count 5), and one count of possession of ammunition by a convicted felon (Count 6). In addition to various firearm and other enhancements, the jury found Reyes committed the crimes for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, or assist in criminal conduct by gang members. The jury convicted Landowski and Humble of being accessories to Reyes’s criminal conduct (Count 9) and also found true gang enhancement allegations attached to that crime. Reyes challenged the sufficiency of the firearm evidence presented to support his conviction, and all defendants challenged the sufficiency of the evidence supporting their gang enhancements. The Court of Appeal determined Senate Bill 620 (2017-2018 Reg. Sess.) gave the trial court discretion to strike firearm enhancements in the interest of justice and applied retroactively; and Senate Bill 136 (2019-2020 Reg. Sess.) eliminated such enhancements, and also applied retroactively. To these issues, the Court remanded for the trial court's consideration. The Court affirmed the trial court in all other respects.

In re S.R.

Docket: B300214(Second Appellate District)

Opinion Date: April 23, 2020

Judge: Bendix

Areas of Law: Criminal Law

Father appealed the juvenile court's dispositional ruling removing daughter from his custody, arguing that his mere possession of child pornography does not demonstrate that he poses a substantial risk of harm to his daughter. The Court of Appeal affirmed the order and held that there is substantial evidence of risk of great harm to daughter—no matter how low the probability— that father will sexually abuse his daughter if he is provided unfettered access to her.

People v. Bell

Docket: B288528(Second Appellate District)

Opinion Date: April 23, 2020

Judge: Stratton

Areas of Law: Criminal Law

Defendant was convicted of one count of attempted robbery, one count of second degree murder, and one count of hit and run driving. The jury found not true the allegation that a principal was armed in the commission of the attempted robbery. The trial court found true the allegations that defendant had served four prior prison terms within the meaning of Penal Code section 667.5, subdivision (b). Defendant raised 13 claims of error on appeal. The Court of Appeal held that the section 667.5, subdivision (b) enhancement terms must be stricken and the matter remanded to the trial court for resentencing. The court also held that defendant forfeited some of his substantive claims and other lack merit. Finally, the court held that, if there is instructional error, the errors are harmless under any standard of review. Accordingly, the court affirmed the judgment of conviction.

El Rovia Mobile Home Park, LLC v. City of El Monte

Docket: B295640(Second Appellate District)

Opinion Date: April 23, 2020

Judge: Laurence D. Rubin

Areas of Law: Real Estate & Property Law, Zoning, Planning & Land Use

The Court of Appeal affirmed the trial court's judgment denying El Rovia's first amended petition for administrative mandamus. At issue is the City's 2015 rent control Ordinance No. 2860, which at least for some purposes states that in the calculation of rents, the base year is the "2012 calendar" year. El Rovia argued that 2015, not 2012, is the lawful base year for the determination of base rent adjustments and that the ALJ's contrary decision was not supported by substantial evidence. The court found no error in the City's selection of 2012 as the base year, and there was no error in using comparable 2012 rental rates to determine base year rent. The court also held that substantial evidence supported the base rent determination of $525.