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.

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Planet Bingo LLC v. The Burlington Ins. Co.

Docket: E074759(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Manuel A. Ramirez

Areas of Law: Business Law, Insurance Law, Products Liability

An electronic gaming device designed and supplied by Planet Bingo, LLC caused a fire in the United Kingdom. Several third parties made demands that Planet Bingo pay their damages resulting from the fire. However, Planet Bingo’s liability insurer, the Burlington Insurance Company (Burlington), denied coverage. Planet Bingo filed this action for breach of contract and bad faith against Burlington. In a previous appeal, the Court of Appeal held that Burlington’s policy did afford coverage, though only if one of the third-party claimants filed suit against Planet Bingo in the United States or Canada. Such a suit was then filed. Burlington accepted the defense and managed to settle the suit for its policy limits. In this action, the trial court granted summary judgment for Burlington, ruling that Burlington had provided all of the benefits due under the policy. Planet Bingo appealed, contending that Burlington conducted an inadequate investigation, and that Burlington wrongfully failed to settle the third-party claims, instead, denying coverage in the hope that the claimants would sue Planet Bingo in the United Kingdom, which would have let Burlington off the coverage hook. Planet Bingo claimed (and Burlington did not dispute) that it lost profits because the fire claims remained pending and unsettled. The Court of Appeal held Planet Bingo made out a prima facie case that Burlington was liable for failure to settle. Even though none of the claimants made a formal offer to settle within the policy limits, one subrogee sent a subrogation demand letter; according to Planet Bingo’s expert witness, in light of the standards of the insurance industry, this represented an opportunity to settle within the policy limits. The Court therefore did not address Planet Bingo’s claim that Burlington conducted an inadequate investigation. The Court also did not decide whether lost profits were recoverable as damages, because this issue was not raised below.

Contreras-Velazquez v. Family Health Centers of San Diego, Inc.

Docket: D075577(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Judith McConnell

Areas of Law: Civil Procedure, Civil Rights, Labor & Employment Law

Rosario Contreras-Velazquez (Velazquez) sued her former employer, Family Health Centers of San Diego, Inc. (Family Health), alleging disability discrimination and related causes of action after she suffered a work-related injury and Family Health terminated her employment. A jury found Family Health not liable, but the trial court ordered a new trial as to three of Velazquez’s causes of action after finding the evidence was insufficient to support the jury’s verdict—a ruling, the Court of Appeal affirmed in a prior appeal. After retrial, a jury found in favor of Velazquez. The jury awarded her $915,645 in compensatory damages and $5 million in punitive damages. However, the trial court granted in part a motion for judgment notwithstanding the verdict (JNOV) and reduced the punitive damages award to $1,831,290 (a 2:1 ratio of punitive to compensatory damages). The court reasoned a punitive damages award equal to twice the compensatory damages award was the maximum amount permissible under the due process clause of the Fourteenth Amendment to the United States Constitution. Family Health appealed, contending certain special verdict findings returned by the first jury estopped Velazquez from prevailing at the retrial under the issue preclusion doctrine. Family Health also appealed the JNOV order on the basis that the reduced punitive damages award remained grossly excessive in violation of Family Health’s due process rights. The Court of Appeal concluded the first jury’s special verdict findings did not constitute a final adjudication of any issue and, therefore, the trial court correctly ruled that the issue preclusion doctrine did not require entry of judgment in Family Health’s favor. Further, the Court concluded the trial court properly reduced the punitive damages award to an amount equal to twice the compensatory damages award—and no further. Therefore, both the judgment and the JNOV order were affirmed.

Vendor Surveillance Corporation v. Henning

Docket: D076079(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Dato

Areas of Law: Civil Procedure, Government & Administrative Law, Labor & Employment Law

Vendor Surveillance Corporation (VSC) appealed an adverse judgment in its action seeking refund unemployment insurance taxes assessed by the California Employment Development Department (EDD). The outcome turned on whether project specialists hired by VSC between January 1, 2011 and December 31, 2013 (the audit years) were classified as employees or independent contractors. The issue presented by this appeal was one of first impression: whether in making that determination, the trial court should apply (1) the ABC test announced in Dynamex Operations W. v. Superior Court, 4 Cal.5th 903, (2018); or instead (2) the Borello factors (S.G. Borello & Sons, Inc. v. Department of Industrial Relations, 48 Cal.3d 341 (1989). "With little case law for guidance and an eye on appeal," the trial court analyzed the evidence alternatively under each standard and determined that project specialists were VSC’s employees. The Court of Appeal held that Borello provided the applicable standard in assessing unemployment insurance taxes during the audit years. Because the court’s findings under that standard were supported by substantial evidence and its qualitative weighing of the Borello factors was an appropriate exercise of the court’s discretion, the Court of Appeal affirmed.

California v. Miranda

Docket: E071542(Fourth Appellate District)

Opinion Date: March 18, 2021

Judge: Raphael

Areas of Law: Constitutional Law, Criminal Law

Defendant-appellant Michael Miranda was convicted on 13 counts charging sex crimes against two minor girls, including oral copulation of an unconscious person, rape of an unconscious person, and sexual penetration of an unconscious person. He was sentenced under the One Strike law. On appeal, he contended in part that the jury should have been instructed on lesser included offenses, and that his ineligibility for youth offender parole hearings violated equal protection. The Court of Appeal agreed that battery was a lesser included offense of oral copulation of an unconscious person, rape of an unconscious person, and sexual penetration of an unconscious person. Given that battery required only an offensive touching, it was impossible to commit any of these crimes without also committing battery against that person. Because of the evidence presented, the Court concluded the trial court was required to instruct the jury on battery as a lesser included offense as to one of Miranda’s crimes, oral copulation of an unconscious person. Therefore, that conviction was reversed and the sentence vacated, as there was a reasonable probability that, absent the error, the jury would have convicted him of only battery if instructed as to that option. As to Miranda’s other two crimes, the Court found the notion that Miranda committed battery but not the greater crimes lacked a grounding in the evidence, so the trial court had no duty to instruct on battery as a lesser included offense. In addition, the Court rejected Miranda’s other challenges to his convictions, including his equal protection challenge.

People v. Nieto

Docket: F078693(Fifth Appellate District)

Opinion Date: March 18, 2021

Judge: Snauffer

Areas of Law: Criminal Law

A jury convicted defendant of committing lewd acts and found true a special allegation that he kidnapped the victim. The Court of Appeal concluded that the pattern jury instruction for kidnapping, CALCRIM No. 1201, wrongly permits a jury to find deception itself sufficient to prove general kidnapping. However, the court concluded that the instructional error was harmless beyond a reasonable doubt where the evidence was otherwise sufficient to prove kidnapping. The court explained that the error in this case—equating deception with physical force—did not contribute to the verdict.

Rush v. State Teachers' Retirement System

Docket: A160558(First Appellate District)

Opinion Date: March 18, 2021

Judge: Pollak

Areas of Law: Government & Administrative Law, Public Benefits

Rush retired in 2012. The California State Teachers Retirement System (CalSTRS) calculated his pension as 92.58 percent of his final compensation. Rush disputed the determination of his “final compensation,” defined as “the highest average annual compensation earnable by a member during any period of 12 consecutive months” For 12 consecutive months over portions of two school years, Rush served as an associate dean at a salary significantly higher than his salary during the other portions of those years. CalSTRS applied Education Code section 22115(d): If a member worked at least 90 percent of a school year at the higher pay rate, compensation earnable was to be calculated as if the member earned all service credit for the year at the higher rate. If the member worked less than 90 percent of the year at the higher rate, as Rush did, compensation earnable “shall be the quotient obtained when creditable compensation paid in that year is divided by the service credit for that year.” The court of appeal upheld CalSTRS’s calculation as within the range of reasonable statutory construction.

City of Los Angeles v. Superior Court of Los Angeles County

Docket: B308909(Second Appellate District)

Opinion Date: March 18, 2021

Judge: Audrey B. Collins

Areas of Law: Personal Injury

Plaintiff filed suit against the City, alleging negligence and a dangerous condition of public property under Government Code section 835. Plaintiff alleged that her husband, an LAPD officer, contracted typhus from unsanitary conditions in and around the Central Community Police Station where he worked. Plaintiff alleged that she also contracted typhus as a result of sharing a living space with her husband. The trial court overruled the City's demurrer, and the City filed a petition for writ of mandate. The Court of Appeal issued an alternative writ and granted the City's petition, The court held that a public entity's liability must be based on statute, and section 835 does not extend liability to members of the public whose alleged injuries do not arise from use of the property at issue or any adjacent property. Therefore, plaintiff has failed to allege a cognizable duty by the City because she never visited the property at issue and has not alleged exposure to any condition of the subject property. Furthermore, even if the City had a duty to plaintiff, it was nevertheless immune from liability under section 855.4, which bars liability for decisions affecting public health.

Felkay v. City of Santa Barbara

Docket: B304964(Second Appellate District)

Opinion Date: March 18, 2021

Judge: Tangeman

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

Before seeking damages for a governmental taking of property through inverse condemnation, the property owner must generally submit more than one proposal to the permitting authority seeking zoning variances or reducing environmental impacts to the extent necessary to allow at least some economically beneficial or productive use of the property. In this case, the Court of Appeal held that multiple applications are not required where the permit denial makes clear that no development of the property would be allowed under any circumstance. The court affirmed the trial court's judgment and fee award in this inverse condemnation action. In this case, the trustee submitted plans to build an ocean-front residential property, but the planning commission rejected the development permit. The court concluded that substantial evidence established that the city would not permit any development below the 127-foot elevation, and that the limited area above that elevation was unbuildable. Therefore, submission of an additional application would have been futile. Furthermore, substantial evidence establishes that it would have been futile to submit modified plans because the agency's decision was certain to be adverse. Finally, the court rejected the city's contention that the trustee failed to litigate his writ petition to conclusion because he did not argue the Public Resources Code section 30010 claim in those proceedings.

Eyford v. Nord

Docket: A157962(First Appellate District)

Opinion Date: March 18, 2021

Judge: Fujisaki

Areas of Law: Trusts & Estates

Kay died in 2016 at age 90. In a trust instrument she executed months earlier, she named St. Jude Children’s Hospital the sole beneficiary of her estate, which was worth approximately $2 million. She disinherited her surviving son and her two granddaughters, who filed a petition contesting the validity of the trust instrument on the ground that Kay had a mental disorder with symptoms including delusions or hallucinations that allegedly caused Kay to devise her property in a way she would not otherwise have done. (Probate Code 6100.5(a)(2)). The court found that the granddaughters failed to carry their burden of proving that Kay was suffering from a delusion at the time she executed the trust. The court of appeal affirmed, rejecting an argument that the trial court erred in wrongly selecting a single false belief Kay had about her granddaughters—i.e., that they “wanted her out of the way in order to get her money”—and then wrongly determining it was not a delusion, while the court should have found that Kay’s multiple false beliefs about her granddaughters all constituted delusions negating Kay’s testamentary capacity. There was substantial evidence that Kay did not have “a mental health disorder” at the time she executed the trust.