Should the Law Prohibit Anti-Fat Discrimination?

SHERRY F. COLB

Cornell law professor Sherry F. Colb explores the problem of fat discrimination and considers what a law of anti-fat discrimination might look like, and why it could be important. Professor Colb explores the similarities and differences between legally protected characteristics and fatness and expresses optimism that a change in law could persuade some individuals to recognize fat people for the colleagues, students, friends, partners, and neighbors that they are.

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Members-Only Unionism is Lawful and Can Make Sense

SAMUEL ESTREICHER

NYU law professor Samuel Estreicher responds to an op-ed by Ron Holland criticizing the recent announcement of a members-only union of 300 Google workers. Professor Estreicher points out several errors and assumptions in Mr. Holland’s piece, and he argues that, in sum, there is no good public policy case for barring or restricting members-only unionism.

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Midway Venture LLC v. County of San Diego

Docket: D078375(Fourth Appellate District)

Opinion Date: January 22, 2021

Judge: Guerrero

Areas of Law: Business Law, Civil Procedure, Constitutional Law, Government & Administrative Law

At issue in this appeal was a preliminary injunction prohibiting the County of San Diego, its public health officer Wilma Wooten, the California Department of Public Health (CDPH), and Governor Gavin Newsom from enforcing COVID-19-related public health restrictions against any business offering restaurant service in San Diego County, subject to safety protocols. Two San Diego businesses that offer live nude adult filed suit claiming the State and County restrictions on live entertainment violated their First Amendment right to freedom of expression. The State and County eventually loosened their restrictions on live entertainment, but as the COVID-19 pandemic worsened, they imposed new restrictions on restaurants. These new restaurant restrictions severely curtailed the adult entertainment businesses’ operations. But these new restrictions were unrelated to live entertainment or the First Amendment. Despite the narrow scope of the issues presented, the trial court granted expansive relief when it issued the injunction challenged here. "It is a fundamental aspect of procedural due process that, before relief can be granted against a party, the party must have notice of such relief and an opportunity to be heard." The Court of Appeal determined that because restaurant restrictions were never part of the adult entertainment businesses’ claims, the State and County had no notice or opportunity to address them. The trial court therefore erred by enjoining the State and County from enforcing COVID-19-related public health restrictions on restaurants. Because the procedure used by the trial court was improper, the trial court’s actions left the Court of Appeal unable to address the substance of this challenge to restaurant restrictions.

Searles v. Archangel

Docket: B296011(Second Appellate District)

Opinion Date: January 22, 2021

Judge: Dennis M. Perluss

Areas of Law: Civil Procedure

After the superior court dismissed plaintiff's petition for a civil harassment restraining order when she was unable to personally serve defendant with a copy of the petition and notice of hearing as required by Code of Civil Procedure section 527.6, subdivision (m), plaintiff appealed and argued that the superior court erred in denying her motion to waive traditional service and allow her to serve defendant through social media. Although the Court of Appeal acknowledged the practical merit to plaintiff's request, the court concluded that the superior court properly concluded it was obligated to follow Code of Civil Procedure section 527.6's express requirement for personal service. The court explained that current law requires personal service of the petition, temporary restraining order, and notice of hearing in civil harassment restraining order cases and does not permit the court to approve alternative methods of service; section 413.30 does not authorize alternative methods of service in civil harassment restraining order cases; and requiring personal service of the notice of hearing did not violate plaintiff's due process rights. Accordingly, the court affirmed the superior court's order of dismissal.

Murphy v. Twitter, Inc.

Docket: A158214(First Appellate District)

Opinion Date: January 22, 2021

Judge: Margulies

Areas of Law: Communications Law, Contracts, Internet Law

Murphy, a journalist with approximately Twitter 25,000 followers, had a Twitter “verification badge,” which “lets people know that an account of public interest is authentic.” Murphy “writes primarily on feminist issues, including the Me Too movement, the sex industry, sex education, third-wave feminism, and gender identity politics.” Murphy argues “that there is a difference between acknowledging that transgender women see themselves as female and counting them as women in a legal or social sense.” Murphy posted several tweets critical of transgender women. Twitter removed her posts and informed her she had violated its hateful conduct rules. After she posted additional similar messages, Twitter permanently suspended her account. Murphy filed suit, alleging breach of contract, promissory estoppel, and violation of the unfair competition law. The trial court dismissed the complaint, concluding Murphy’s suit was barred by the Communications Decency Act of 1996, 47 U.S.C. 230, under which interactive computer service providers have broad immunity from liability for traditional editorial functions undertaken by publishers—such as decisions whether to publish, withdraw, postpone or alter content created by third parties. The court of appeal affirmed. Each of Murphy’s causes of action seeks to hold Twitter liable for its editorial decisions. Murphy also failed to state a cognizable claim under California law. The Hateful Conduct Policy was in place when Murphy began posting her deleted tweets; Twitter expressly reserved the right to remove content, and suspend or terminate accounts “for any or no reason.”

People v. Hernandez

Docket: B302815(Second Appellate District)

Opinion Date: January 22, 2021

Judge: Segal

Areas of Law: Criminal Law

Defendant appealed from the superior court's order denying his petition under Penal Code section 1170.95, which allows certain defendants convicted of murder under a felony murder or natural and probable consequences theory to petition the court to vacate their convictions and for resentencing. The Court of Appeal affirmed the order denying the petition under section 1170.95, concluding that the superior court correctly ruled that Penal Code section 189, subdivision (f), does not require the prosecution to prove the defendant acted with malice. The court also concluded that, contrary to defendant's contentions, the law of the case doctrine did not preclude the superior court from finding he could be convicted of first degree felony murder under current law and that the superior court did not apply the wrong legal standard in determining whether he had the requisite knowledge under section 189, subdivision (f).

People v. Taylor

Docket: H047540(Sixth Appellate District)

Opinion Date: January 22, 2021

Judge: Elia

Areas of Law: Criminal Law

Proposition 64, “the Control, Regulate and Tax Adult Use of Marijuana Act" (2016), added Health and Safety Code section 11362.1. With specified exceptions, section 11362.1(a) declares it “lawful under state and local law" .for persons 21 years of age to possess, process, transport, purchase, obtain, or give away to persons 21 years of age, without compensation, not more than 28.5 grams of cannabis. Section 11361.8 establishes a post-judgment procedure to recall or dismiss a sentence when “[a] person currently serving a sentence for a conviction . . . would not have been guilty of an offense, or . . . would have been guilty of a lesser offense under" the Act. Taylor moved to dismiss a 1999 felony conviction for possession of a controlled substance in prison, Penal Code 4573.6, and a 2000 felony conviction of conspiracy to commit a crime. The court of appeal affirmed the denial of the motions. Penal Code 4573.6 makes exceptions to the prohibited possession in prison and other custodial settings only where possession is authorized by the rules of the Department of Corrections, rules of the institution, or by specific authorization. Proposition 64 does not address that prohibition. The most logical inference is that the Legislature sought to keep unauthorized substances out of custodial settings to maintain institutional supervision, discipline, and safety.

Southern California School of Theology v. Claremont Graduate University

Docket: B295488(Second Appellate District)

Opinion Date: January 22, 2021

Judge: Victoria Gerrard Chaney

Areas of Law: Real Estate & Property Law

This cases concerns a dispute regarding terms included in a 1957 grant deed (and incorporated by reference into various other documents) transferring the land on which SCST's campus sits from Claremont College to SCST. The deed at issue contained two conditions subsequent, one regarding permissible uses of the property (Educational Use Clause) and one regarding conditions that would require SCST to offer the property for sale to Claremont on agreed terms (First Offer Clause), enforceable by a power of termination and right of reentry. On appeal, Claremont challenges the trial court’s use of the forfeiture doctrine to decline to enforce the deed's First Offer Clause and to create a first right of refusal in its stead. The Court of Appeal reversed the trial court's judgment, agreeing with Claremont that the forfeiture doctrine has no application under these circumstances. The court need not decide whether the Marketable Record Title Act (MRTA) applies to the parties' dispute because even if it does apply, the First Offer Clause is an equitable servitude that the MRTA does not extinguish. The court concluded that enforcing the First Offer Clause as written would operate no forfeiture to either party; indeed, each party would receive that for which they bargained, and that to which they agreed. The court remanded with instructions.