The Future of Faithless Electors and the National Popular Vote Compact: Part Two in a Two-Part Series

VIKRAM DAVID AMAR

In this second of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector cases, Illinois Law dean and professor Vikram David Amar describes some good news that we may glean from those cases. Specifically, Amar points out that states have many ways of reducing elector faithlessness, and he lists three ways in which the Court’s decision paves the way for advances in the National Popular Vote (NPV) Interstate Compact movement.

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Impoverishing Women: Supreme Court Upholds Trump Administration’s Religious and Moral Exemptions to Contraceptive Mandate

JOANNA L. GROSSMAN

SMU Dedman School of Law professor Joanna L. Grossman comments on the U.S. Supreme Court’s recent decision upholding the Trump administration’s religious and moral exemptions to the contraceptive mandate of the Affordable Care Act (ACA). Grossman provides a brief history of the conflict over the growing politicization of contraception in the United States and argues that the exemptions at issue in this case should never have been promulgated in the first place because they have no support in science or public policy.

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Aixtron, Inc. v. Veeco Instruments Inc.

Docket: H045126(Sixth Appellate District)

Opinion Date: July 16, 2020

Judge: Greenwood

Areas of Law: Arbitration & Mediation, Civil Procedure

Saldana resigned from his position at Veeco and went to work for a competitor, Aixtron. Veeco initiated arbitration proceedings against Saldana under an arbitration clause in his employee confidentiality agreement, alleging breach of contract, breach of the duty of loyalty, and conversion, including alleged data theft. Aixtron was not a party to the arbitration. The arbitrator granted Veeco’s application for a pre-hearing discovery subpoena for Aixtron’s business records, including a demand that Aixtron produce any computers that Saldana had used for forensic examination by “an agreed-upon third-party neutral expert.” Over Aixtron’s objections, the arbitrator granted Veeco’s motion to compel. Aixtron sought judicial review; Veeco filed a separate petition to enforce the arbitrator’s discovery order, which the court granted. The court of appeal reversed, after first finding the order appealable. The arbitrator did not have the authority to issue a discovery subpoena to Aixtron in these circumstances under either the Federal Arbitration Act or the California Arbitration Act. Federal precedent indicates that there is no right to pre-hearing discovery under the FAA. There is no such right under Code of Civil Procedure section 1282.61 since the parties to the arbitration did not provide for full discovery rights in their arbitration agreement.

Altizer v. Highsmith

Docket: A157921(First Appellate District)

Opinion Date: July 16, 2020

Judge: James A. Richman

Areas of Law: Civil Procedure, Legal Ethics, Professional Malpractice & Ethics

In 1995, 17 plaintiffs sued the Highsmiths on several promissory notes. The parties entered into a stipulation; a single judgment was entered in favor of the plaintiffs in various amounts. In 2005, an attorney representing the plaintiffs renewed the judgment using the standard Judicial Council form. The attorney subsequently died. When the judgment was again due to be renewed in 2015, one of the plaintiffs (Bisordi) did so, again using the standard form. Defendants moved to vacate the 2015 renewal, arguing that it was void because to the extent one plaintiff purported to file it on behalf of the others, doing so constituted the unauthorized practice of law. The trial court agreed. The court of appeal reversed. Bisordi was acting in a “clerical” capacity, or as a “scrivener.” The statutory renewal of judgment is an automatic, ministerial act accomplished by the clerk of the court; entry of the renewal of judgment does not constitute a new or separate judgment. Bisordi did not hold himself out as any kind of attorney, offer the other creditors any legal advice, or resolve for them any “difficult or doubtful legal questions” that might “reasonably demand the application of a trained legal mind.”

California v. Financial Casualty & Surety, Inc.

Docket: E072188(Fourth Appellate District)

Opinion Date: July 16, 2020

Judge: Fields

Areas of Law: Criminal Law

Defendant-appellant Financial Casualty & Surety, Inc. (Surety), appealed an order denying its motion to set aside the summary judgment against Surety on a $25,000 bail bond. Surety claimed the court did not have jurisdiction to enter the summary judgment on the bond, because it lost jurisdiction over the bond on two prior occasions. Surety first claims the court lost jurisdiction over the bond on May 9, 2017, when the jury returned verdicts of conviction and the court allowed the defendant to remain released on bail pending judgment and sentence - without taking evidence or making express factual findings concerning the five factors listed in Penal Code section 1166. Surety argued that the failure to comply with Section 1166 was a jurisdictional error which exonerated the bond by operation of law. Alternatively, Surety claims the court lost jurisdiction over the bond on June 30, 2017, when the defendant failed to appear for judgment and sentence. At that time, the court declared the bond forfeited and continued sentencing to July 6, 2017. Surety argued the court "held" the June 30 forfeiture, along with its hold on a bench warrant for the defendant's arrest, until July 6, 2017. Surety argued the trial court lost jurisdiction over the bond because it did not expressly declare the bond forfeited in open court on July 6, 2017, or at any later time. The Court of Appeal disagreed on both arguments, concluding that the failure to comply with section 1166 did not exonerate the bond by operation of law. Pursuant to the terms of the bond, Surety agreed to be liable on the bond if the defendant failed to appear for judgment and sentence. Further, the Court found the trial court record plainly showed the court did not "hold" its June 30 order declaring the bond forfeited. Rather, it only held issuance of the bench warrant for the defendant’s arrest, pending his appearance at the continued sentencing hearing on July 6, 2017. Thus, the court never lost jurisdiction over the bond and properly entered summary judgment on the bond against Surety.

Abatti v. Imperial Irrigation Dist.

Docket: D072850(Fourth Appellate District)

Opinion Date: July 16, 2020

Judge: Cynthia Aaron

Areas of Law: Environmental Law, Government & Administrative Law, Zoning, Planning & Land Use

The Imperial Irrigation District (District) supplied water from the Colorado River system to California's Imperial Valley, holding its water rights in trust for the benefit of its users, and was empowered by California law to manage the water supply for irrigation and other beneficial uses. In 2013, the District implemented an equitable distribution plan with an annual water apportionment for each category of users (2013 EDP). Michael Abatti presently owns and farms land in the Imperial Valley. Abatti, as trustee of the Michael and Kerri Abatti Family Trust, and Mike Abatti Farms, LLC (collectively, Abatti) filed a petition for writ of mandate to invalidate the 2013 EDP on the grounds that, among other things, the farmers possess water rights that entitle them to receive water sufficient to meet their reasonable irrigation needs—and the plan unlawfully and inequitably takes away these rights. Abatti's position, fairly construed, is that farmers are entitled to receive the amounts of water that they have historically used to irrigate their crops. The District contended the farmers possessed a right to water service, but not to specific amounts; the District was required to distribute water equitably to all users, not just to farmers; and that the 2013 DEP allowed the District to do so, while fulfilling its other obligations, such as conservation. The superior court granted the petition, entering a declaratory judgment that prohibited the District from distributing water in the manner set forth in the 2013 EDP, and required the District to use a historical method for any apportionment of water to farmers. The District appealed, and Abatti cross-appealed an earlier order sustaining the District's demurrer to his claims that the District's adoption of the 2013 EDP constitutes a breach of its fiduciary duty to farmers and a taking. The Court of Appeal concluded the farmers within the District possessed an equitable and beneficial interest in the District's water rights, which was appurtenant to their lands. "Although the superior court acknowledged certain of these principles, its rulings reflect that it took an unduly narrow view of the District's purposes, thus failing to account for the District's broader obligations, and took an overly expansive view of the rights of farmers." The superior court was directed to enter a new judgment: (1) granting the petition on ground that the District's failure to provide for equitable apportionment among categories of water users constituted an abuse of discretion; and (2) denying the petition on all other grounds, including as to declaratory relief.

Church v. San Mateo County Assessment Appeals Board

Docket: A155034(First Appellate District)

Opinion Date: July 16, 2020

Judge: Stuart R. Pollak

Areas of Law: Government & Administrative Law, Tax Law

The San Mateo County Assessment Appeals Board invalidated escape assessments imposed by the County Assessor based on the value of machinery and equipment (M&E) at Genentech’s San Mateo County facility. The fair market value of the M&E on which property tax is imposed is determined with reference to either the cost of equipment purchased in a finished state or, if the equipment is not purchased in a finished state, costs incurred to bring the equipment to a finished state. The Board determined that Genentech purchased all of the M&E in a finished state and that the assembly of the equipment into a production line did not render the equipment “self-constructed property” justifying the inclusion of the additional costs in determining fair market value. The trial court determined that none of the equipment was in a finished state until put to use in a functioning production line and that the additional costs capitalized for accounting purposes add to the value of the property for purposes of the property tax. The court of appeal reversed. The trial court adopted a standard for determining when equipment is in a finished state for which there is no justification, and erroneously rejected Board findings that are supported by substantial evidence. Fair market value and net book value are separate concepts with separate purposes; the assessor may not rely on Genentech’s capitalization of expenses for accounting purposes to establish that those expenses increase the value of the equipment and are subject to assessment.

Savaikie v. Kaiser Foundation Hospitals

Docket: B291120(Second Appellate District)

Opinion Date: July 16, 2020

Judge: Stratton

Areas of Law: Personal Injury

The Court of Appeal affirmed the trial court's judgment in favor of Kaiser in an action brought by plaintiffs, alleging that Kaiser was vicariously liable for a driver who hit and killed plaintiffs' son. The driver drove to an assisted living facility in his own vehicle and provided pet therapy to a Kaiser patient. The court held that the facts do not support a reasonable inference that Kaiser expressly or implied required the driver to use his own vehicle as a condition of his volunteer work. In this case, the evidence shows that Kaiser permitted pet therapy volunteers to select the means of transportation for themselves and their animals, assigned the therapists to provide therapy at a variety of locations, checked the liability insurance of all Kaiser volunteers who either provided a driver's license or used their own vehicles, had at one time offered to reimburse the driver for his mileage, and had an "arrangement" with the driver that he would use his own vehicle. The court also held that the driver's use of his personal vehicle did not provide an incidental benefit to Kaiser; the driver did not use a special mode of transportation; and the coming and going rule applies to the driver's drive.