Latest 6 Cases: Dos Vientos v. CalAtlantic Group, Inc. (Arbitration & Mediation), Gamma Eta Chapter of Pi Kappa Alpha v. Helvey (Arbitration & ...

Dead Letter Office: What’s Left of the Impeachment Power After Trump’s Acquittal

DEAN FALVY

Dean Falvy, a lecturer at the University of Washington School of Law in Seattle, discusses what happens now, after Senate Republicans voted to acquit President Trump. Falvy predicts that (1) President Trump will be emboldened to commit further abuses of power, (2) future presidents will be less constrained by fear of impeachment, and (3) impeachment may become more routine as political practice and significantly less effective as a constitutional remedy.

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Dos Vientos v. CalAtlantic Group, Inc.

Docket: B291731(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Arthur Gilbert

Areas of Law: Arbitration & Mediation, Real Estate & Property Law

After the condominium association sued the developer alleging construction defects, the association began arbitration without obtaining a vote of its members. However, the association's governing documents required arbitration of such disputes and a vote of at least 51 percent of the association's membership prior to beginning arbitration. The members later overwhelmingly voted to pursue the arbitration, but the arbitrator dismissed the arbitration for lack of a membership vote prior to its commencement. The Court of Appeal reversed the trial court's confirmation of the award and entry of judgment for the developer. The court disagreed with Branches Neighborhood Corp. v. CalAtlantic Group, Inc. (2018) 26 Cal.App.5th 743, which held that unless the association has obtained approval by a vote of at least 51 percent of its members prior to beginning arbitration, it has forever forfeited its right to pursue its claims in any forum in spite of an overwhelming ratifying vote. The court stated that this interpretation directly violates the public policy expressed in Code of Civil Procedure section 1286.2, subdivision (a)(4). In this case, the court held that the language of section 7.01B of the covenants, conditions, and restrictions (CC&R's) violates explicit legislative expressions of public policy. Furthermore, the Legislature has also determined that provisions such as section 7.01B are unconscionable. The court stated that Senate Bill No. 326 bars the use of provisions such as section 7.01B as a defense for developers against claims of condominium associations.

Gamma Eta Chapter of Pi Kappa Alpha v. Helvey

Docket: B295667(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Wiley

Areas of Law: Arbitration & Mediation

The chapter filed suit against defendant and the housing corporation for constructive fraud, breach of fiduciary duty, unjust enrichment, negligent misrepresentation, and others. The Court of Appeal reversed the trial court's denial of the housing corporation's motion to compel arbitration and held that the chapter must arbitrate its claims against the housing corporation. In this case, the international fraternity is an overarching and governing international organization, and the local chapter of this fraternity is merely a subordinate fraternal component of the international fraternity. Furthermore, the international fraternity and the housing corporation wanted arbitration, and thus this was in effect a stipulation for arbitration. Therefore, the chapter lacked legal power to disregard the instruction from the international fraternity. The court also held that the housing corporation has not waived its right to arbitrate.

Downey v. Public Storage, Inc.

Docket: B291662(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Brian M. Hoffstadt

Areas of Law: Class Action

The Court of Appeal held that where, as here, a proposed class action lawsuit seeks restitution for violations of the Unfair Competition Law and false advertising law based on a series of allegedly deceptive advertisements offering a special promotional rate but defines the class as everyone who received the special promotional rate, the plaintiffs must establish that the following "elements" are "susceptible of common proof"—namely, (1) that the class members were exposed to the advertisements, and (2) that the various permutations of the advertisements were deceptive. The court held that the language in In re Tobacco II Cases (2009) 46 Cal.4th 298, is not to the contrary. The court also held that the trial court's finding that the issues of exposure and deceptiveness were not susceptible of common proof was supported by substantial evidence.

Shaeffer v. Califia Farms, LLC

Docket: B291085(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Brian M. Hoffstadt

Areas of Law: Consumer Law

Plaintiff filed suit under the Unfair Competition Law, the false advertising law, and the Consumer Legal Remedies Act, alleging that the Cuties Juice label for tangerine juice was fraudulent because it was likely to deceive reasonable consumers in its implications. The Court of Appeal held that where, as here, a product label accurately states that the product has "no sugar added," a reasonable consumer is not likely to view that statement as a representation that competing products do have sugar added, which, if untrue, renders the product label at issue deceptive. The court held that the allegations underlying plaintiff's remaining claims were also deficient. Accordingly, the court affirmed the trial court's order sustaining a demurrer without leave to amend.

People v. Torres

Docket: B296587(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Frances Rothschild

Areas of Law: Criminal Law

Penal Code section 1237.2, which was enacted to allow trial courts to correct errors in fines and assessments notwithstanding a pending direct appeal, does not apply after the defendant's direct appeal has concluded. The Court of Appeal dismissed defendant's appeal of the trial court's denial of his motion to modify his sentence by reducing his restitution fine based on his inability to pay it. The court held that defendant's motion to modify his sentence was filed after the conclusion of his direct appeal and there was no other basis for trial court jurisdiction over his motion, and thus the order denying his motion was nonappealable.

In re D.P.

Docket: B295780(Second Appellate District)

Opinion Date: February 6, 2020

Judge: Egerton

Areas of Law: Family Law

After seven-year-old D.P. was removed from his mother's physical custody and returned home to father's custody, mother appealed the removal order under Welfare and Institutions Code section 361, subdivision (e). The Court of Appeal held that the juvenile court failed to state the facts supporting removal, and that there was a reasonable probability that the juvenile court would have adopted the alternative to removal specified in section 361, subdivision (c)(1)(A) had it considered the option. In regard to mother's challenge regarding the parts of the disposition order restricting her to monitored visitation and requiring her to participate in a full drug and alcohol treatment program, the court held that the juvenile court reasonably exercised its discretion to impose visitation restrictions and services. Accordingly, the court reversed the removal portion of the disposition order and affirmed in all other respects.