Latest 4 Cases: Taniguchi v. Restoration Homes LLC (Banking), Loeb v. County of San Diego (Civil Procedure), California v. Warner (Constitutional Law)

Evaluating the Lawsuit Attacking Mississippi’s Distinctive Method of Picking Governors: Part Three in a Series

VIKRAM DAVID AMAR, JASON MAZZONE

In this third of a series of columns on a legal challenge to Mississippi’s method of selecting governors, Illinois law dean Vikram David Amar and professor Jason Mazzone discuss the merits of the challenge, with a particular focus on the plaintiffs’ contention that the method violates the one-person, one-vote principle enshrined in the Equal Protection Clause of the Fourteenth Amendment. Amar and Mazzone discuss the relevant precedents and argue that based on those precedents, the challenge has solid legal ground on which to proceed.

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Taniguchi v. Restoration Homes LLC

Docket: A152827B(First Appellate District)

Opinion Date: December 16, 2019

Judge: Miller

Areas of Law: Banking, Consumer Law, Real Estate & Property Law

If the principal secured by a mortgage or deed of trust becomes due because of the borrower’s default in making payments Civil Code 2924c allows the borrower to reinstate the loan and avoid foreclosure by paying the amount in default, plus specified fees and expenses. Under section 2953, the right of reinstatement cannot be waived in any agreement “at the time of or in connection with the making of or renewing of any loan secured by a deed of trust, mortgage or other instrument creating a lien on real property.” The borrowers missed four monthly payments on a mortgage loan that had been modified after an earlier default. The modification deferred amounts due on the original loan and provided that any default would allow the lender to void the modification and enforce the original loan. The borrowers sought to reinstate the modified loan by paying the four missed payments, plus fees and expenses. The lender argued that section 2953 does not apply to the modified loan and that the borrowers may reinstate the original loan by paying the amount of the earlier default on the original loan plus the missed modified payments. The court of appeal ruled in favor of the borrowers. Modification is appropriately viewed as the making or renewal of a loan secured by a deed of trust and is subject to the anti-waiver provisions. Section 2924c gives the borrows the opportunity to cure their precipitating default (the missed modified monthly payments) by making up those missed payments and paying the associated late charges and fees, to avoid the consequences of default on the modified loan.

Loeb v. County of San Diego

Docket: D074347(Fourth Appellate District)

Opinion Date: December 16, 2019

Judge: Judith L. Haller

Areas of Law: Civil Procedure, Government & Administrative Law, Personal Injury

Sally Loeb sued the County of San Diego (County) for personal injuries she allegedly sustained when she tripped on an uneven concrete pathway in a County park. The County filed successive motions for summary judgment based on a "trail immunity" defense, which provided absolute immunity to public entities for injuries sustained on public trails that provide access to, or are used for, recreational activities. The trial court denied these motions, finding disputed facts existed regarding whether the pathway was used for recreational purposes. But when Loeb conceded during argument over the proposed special verdict forms that the pathway was used, at least in part, for recreational purposes, the trial court granted a nonsuit in the County's favor. Loeb contended the trial court erred procedurally and substantively. Finding no reversible error in the grant of a nonsuit, the Court of Appeal affirmed.

California v. Warner

Docket: C077711A(Third Appellate District)

Opinion Date: December 16, 2019

Judge: Cole Blease

Areas of Law: Constitutional Law, Criminal Law

On a Saturday night of a long July 4th holiday weekend, defendant Shane Warner took a semiautomatic hand gun, concealed in his waistband into a bar. He shot across the bar’s semidark dance floor, illuminated by a strobe light, at I. Smith, who had attacked him a few weeks earlier. Defendant emptied the gun’s clip of 10 bullets and wounded, but did not kill his primary target, Smith, and wounded, but did not kill an innocent bystander, N.C. Defendant claimed to have acted in self-defense, but there was no evidence that Smith was armed. The prosecution charged defendant with two counts of attempted murder and one count of assault with a semiautomatic firearm, the latter predicated on a "kill zone" theory. The jury was unable to reach a verdict on the attempted murder of Smith, acquitted him of the attempted murder of N.C., but found him guilty of the lesser included offense of attempted voluntary manslaughter. The trial court sentenced defendant to a total of 22 years in prison. Defendant argued there was insufficient evidence to sustain his conviction for attempted voluntary manslaughter; he argued it was error to allow the prosecution to infer intent from a “kill zone” theory, and to so instruct the jury. After review, the Court of Appeal concluded the trial court did not err in allowing the prosecutor to argue defendant intended to kill N.C. under a “kill zone” theory, and in so instructing the jury. Even though the sentence for attempted voluntary manslaughter was stayed, defendant petitioned the California Supreme Court for review, raising the issue of the “kill zone” instruction. The Supreme Court granted review, and directed the Court of Appeal to vacate its decision and reconsider the case in light of California v. Canizales, 7 Cal.5th 591 (2019), decided after the appellate court's opinion was filed. After reconsidering the matter, judgment was again affirmed, and the case remanded to allow the trial court to consider whether to exercise its discretion to strike the sentencing enhancement.

In re Anthony L.

Docket: A154220(First Appellate District)

Opinion Date: December 16, 2019

Judge: Tucher

Areas of Law: Criminal Law, Juvenile Law

Five teenagers attacked a 61-year-old man in his driveway. The incident was captured on security cameras. Minor’s teacher identified him from photographs. San Francisco Police Sergeant Smith contacted Minor’s mother, stating that he was investigating a crime and needed to meet with Minor, age 15. Officer Martinez, who spoke Spanish, accompanied Smith to the home. Martinez’s body camera recorded the events. Mother led them to Minor’s bedroom, where he was sleeping, and stayed in the room. Smith handed Minor a “Juvenile Know Your Rights” form and told Minor, “I’m going to read you your rights just because you’re a juvenile… you’re not under arrest.” When asked if he understood each statement, Minor answered “Yes.” Minor was largely unresponsive but eventually said that he hit the victim. Smith then placed Minor under arrest. The court of appeal affirmed a juvenile court order placing Minor on probation. Although police must arrange for the youth to consult with counsel before interrogating a 15-year-old in custody, (Welf. & Inst. Code 625.6(a)), the statute does not provide for exclusion of the minor’s statements as a remedy. Minor’s constitutional rights were not violated. Minor knowingly waived his Miranda rights and was not subjected to deception or trickery. The court struck, as vague, a probation condition, requiring Minor to “[c]onsult with the Probation Officer without hesitation when you are in need of advice.”