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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Moore v. Teed

Docket: A153523(First Appellate District)

Opinion Date: April 24, 2020

Judge: Sanchez

Areas of Law: Construction Law, Contracts, Personal Injury, Real Estate & Property Law

Teed promoted himself online as a real estate agent with “over 25 years of experience as a building contractor” with “an extensive background in historic restorations.” Moore believed that Teed was a general contractor. Moore toured homes that Teed had renovated and retained Teed as his agent. Moore bought a large San Francisco fixer-upper house for $4.8 million. The home was built in 1912 and was last updated in the 1950s. Moore borrowed significantly. Teed received a commission from the sale. Teed was not a licensed contractor; his team of contractors gutted large parts of the house and excavated the lot but the foundation was defective. After Moore became aware of the defects, he halted all work and engaged consultants, who concluded, despite Teed's strong resistance, that the foundation had to be torn out and replaced. Teed’s structural engineer agreed and privately apologized to Moore. Moore had paid about $265,000 of the $900,000 promised cost for Teed’s renovations. A jury awarded Moore his out-of-pocket expenses for replacing the foundation and benefit-of-the-bargain damages for the additional cost he incurred in obtaining the promised renovations. Conceding liability, Teed challenged the award. The court of appeal affirmed that benefit-of-the-bargain damages are available to fully compensate a plaintiff for all the detriment proximately caused by a fraudulent fiduciary’s actions and the award of statutory attorney fees and costs based on the jury’s special verdict finding that Teed violated the Contractors’ State License Law.

Mikhaeilpoor v. BMW of North America, LLC

Docket: B293987(Second Appellate District)

Opinion Date: April 24, 2020

Judge: White

Areas of Law: Consumer Law, Legal Ethics

Mikhaeilpoor sued BMW and an auto dealership, asserting claims under the Song-Beverly Act (Civ. Code, 1790) stemming from her lease of a 2013 BMW. Mikhaeilpoor alleged that the defendants: failed to promptly replace her car or make restitution; failed to commence repairs aimed at conforming the car to its warranty; failed to make available adequate service and repair facilities; and breached express and implied warranties. A jury awarded $17,902.54 in compensatory damages and $17,902.54 in civil penalties. Mikhaeilpoor sought attorney fees of $344,639 under section 1794(d): $226,426, plus a 0.5 multiplier enhancement and $5,000 for the fee resolution process. Her motion was opposed as vastly overstating the work performed with excessive hourly rates and an unwarranted adjustment. The judge “went through all the bills” and was “aghast” that counsel sought $343,000 in fees for “a very simple case.” The court did not consider whether Mikhaeilpoor should have accepted a Code of Civil Procedure section 998 offer, but calculated 225 hours at a $350 hourly rate and found that $95,900 was the reasonable amount of attorney fees. The court of appeal affirmed. The trial court was in the best position to evaluate the professional services rendered before it; its decision is supported by substantial evidence.

In re G.C.

Docket: E072514(Fourth Appellate District)

Opinion Date: April 24, 2020

Judge: Miller

Areas of Law: Family Law, Government & Administrative Law

Defendants-appellants A.C. (Father) and K.C. (Mother) were the parents of G.I., G.A. and J.C. Father, with Mother joining, appealed the juvenile court’s dispositional order removing G.I., J.C., and G.A. (collectively, the children) from Father’s and Mother’s (collectively, Parents) custody. In 2019, plaintiff-respondent San Bernardino County Children and Family Services (CFS) received an immediate response referral alleging general neglect of the children by Mother. It was reported that the home was filthy, the floors were covered in feces and urine, a majority of the food in the refrigerator was expired, the food in the cabinets had mold, and the home smelled of marijuana. When a social worker arrived at the home, Mother had already been taken into custody, and she was having suicidal disclosures. Law enforcement was at the home with the children because Father was deployed and no one was available to care for the children. Following a hearing, the juvenile court found true: (1) Mother failed to provide adequate care and shelter for the children because the home was found to be filthy, creating a hazard due to dirty clothing, trash, feces and lack of provisions, which placed the children at substantial risk of serious physical harm; (2) Mother had an untreated substance abuse issue that prevented her from being able to adequately parent the children, and marijuana was within reach of the children; (3) Mother had been diagnosed with ADHD, anxiety, depression and other mental health issues, Mother had failed to take medication since it was stolen, and if her mental health issues were left untreated, she placed the children at risk of serious physical harm; (4) and Father failed to protect the children from Mother’s behavior, and he knew or should have known the dangers to which they were exposed while under her care. An allegation that Father was deployed and unable to make appropriate arrangements for the children was found not true. After review of the juvenile court record, the Court of Appeal was satisfied substantial evidence was presented to support removal of the children from the parents' custody.

In re Aubrey T.

Docket: B296810(Second Appellate District)

Opinion Date: April 24, 2020

Judge: Laurie D. Zelon

Areas of Law: Family Law, Juvenile Law

Anthony and Taylor, the parents of Aubrey, born in 2011, had an on-again-off-again relationship. At the time of the birth, Taylor was staying with Aubrey’s maternal great-grandparents. Anthony was present at Aubrey’s birth but was not named on the birth certificate. Weeks later, Taylor and Aubrey moved in with Anthony; when Aubrey was six months old, they got married. According to Taylor, Anthony was often absent because he had a serious alcohol and drug abuse problem and sometimes committed acts of domestic violence against Taylor. When Aubrey was three years old, Anthony and Taylor separated. Taylor and Aubrey moved in with Aubrey's great-grandparents. Taylor obtained a temporary restraining order against Anthony that precluded contact with her or Aubrey. After the TRO was lifted, Taylor allowed Anthony to have visits with Aubrey outside the great-grandparents’ home. In November 2015, after learning that Taylor was missing, Anthony filed a petition for the dissolution of the marriage and sought custody of Aubrey. The juvenile court terminated Anthony’s paternal rights under Family Code section 7822 and declared Aubrey free for adoption by her great-grandparents. The court of appeal reversed. The evidence did not support a finding that Anthony’s efforts to have contact with Aubrey were mere token communications that did not overcome the statutory presumption of abandonment; there was no substantial evidence that Anthony intended to abandon Aubrey during the relevant period.