Latest 8 Cases: Dorit v. Noe (Arbitration & Mediation), Mosley v. Pacific Specialty Ins. Co. (Civil Procedure), Third Laguna Hills Mutual v. ...

Before She Died, “Jane Roe” Said She Was Never Really Pro-Life: Does It Matter?

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the revelation that before she died, Norma McCorvey—the woman who was the plaintiff in Roe v. Wade and who had subsequently become a prominent spokesperson for overturning the decision—said she was never really pro-life after all. Using this example, Dorf explains why, in some ways, the individual plaintiff’s identity does not matter for the purpose of deciding an important legal issue, yet in other ways, the plaintiff’s underlying story can be very important for other reasons.

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Dorit v. Noe

Docket: A157433(First Appellate District)

Opinion Date: May 26, 2020

Judge: Brown

Areas of Law: Arbitration & Mediation, Legal Ethics

Noe hired attorney Dorit to evaluate the medical records of Noe’s deceased mother for a potential medical malpractice suit. Noe agreed to pay Dorit a $10,000 non-refundable retainer fee, intended to cover Dorit’s time spent evaluating the claim, plus “the costs of additional medical records and/or expert medical review if indicated.” The agreement stated, “Should there arise any disagreement as to the amount of attorney fees and/or costs, Client agrees to enter into binding arbitration of such issue or dispute before the Bar Association of San Francisco.” Ultimately, Dorit said he did not think a malpractice claim was viable. Noe later asked Dorit to return some or all of the retainer fee. Dorit refused. Noe filed a request for arbitration. An arbitrator awarded Noe nothing and allocated him the entire filing fee. Because neither party requested a trial de novo, the award became binding under the Mandatory Fee Arbitration Act MFAA). Months later, Dorit sued Noe for malicious prosecution based on the initiation of arbitration. Noe filed a special motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The court of appeal reversed the denial of his motion. A malicious prosecution claim cannot be based on an MFAA arbitration.

Mosley v. Pacific Specialty Ins. Co.

Docket: E071287(Fourth Appellate District)

Opinion Date: May 26, 2020

Judge: Carol D. Codrington

Areas of Law: Civil Procedure, Insurance Law, Real Estate & Property Law

Plaintiffs-appellants James and Maria Mosley rented out a home they owned that defendant-respondent Pacific Specialty Insurance Company (PSIC) insured under a homeowners’ policy (the Property). The Mosleys’ tenant started growing marijuana in the Property. To support his marijuana-growing operation, the tenant re-routed the Property’s electrical system to steal power from a main utility line. The tenant’s re-routed electrical system caused a fuse to blow, which started a fire that damaged the Property. PSIC denied coverage, citing a provision in the Mosleys’ policy that excluded any loss associated with “[t]he growing of plants” or the “manufacture, production, operation or processing of . . . plant materials.” The Mosleys sued, but the trial court granted summary judgment in favor of the insurance company, finding that the Mosleys had control over their tenant's conduct. A divided Court of Appeals reversed, finding no evidence the Mosleys were aware of their tenant's marijuana growing operation, and because the record was silent as to what the Moseleys could or should have done to discover it. "[T]he Mosleys did not use the Property in a prescribed way that would have allowed PSIC to suspend their insurance and deny all coverage. More importantly, contrary to PSIC’s assertion and the trial court’s finding, there was no evidence Mosleys knowingly increased a risk of fire hazard. In addition, a fact issue remains as to whether [the Tenant's] hazard-increasing conduct was within their control. If it was, then PSIC properly denied coverage. But by denying the Mosleys coverage for Lopez’s conduct, regardless of the Mosleys’ control over or knowledge of it, the Policy did not provide 'substantially equivalent' coverage to that required under [Insurance Code] section 2071."

Third Laguna Hills Mutual v. Joslin

Docket: G057230(Fourth Appellate District)

Opinion Date: May 26, 2020

Judge: Moore

Areas of Law: Civil Procedure, Real Estate & Property Law

Third Laguna Hills Mutual (a homeowner’s association, “the HOA”) filed a complaint alleging homeowner Jeff Joslin violated its covenants. Joslin filed a cross-complaint alleging the HOA unlawfully prevented him from renting out his home. The HOA filed an anti-SLAPP motion to strike the cross-complaint: “It is clear that Joslin is suing the [HOA] for suing him.” The court denied the motion. The HOA appealed. The Court of Appeal affirmed the trial court's denial of the HOA's anti0SLAPP motion. "The filing of a complaint is a protected activity under the anti-SLAPP statute (the right to petition). But to some degree, every party that files a cross-complaint is suing because it is being sued. Here, Joslin’s cross-complaint arises from the HOA’s alleged tortious acts, but not from the HOA’s protected act of filing a complaint."

California v. Prado

Docket: G058172(Fourth Appellate District)

Opinion Date: May 26, 2020

Judge: Moore

Areas of Law: Constitutional Law, Criminal Law

Defendant Manuel De Jesus Prado filed a Penal Code section 1170.95 petition, stating that he was convicted of murder and was entitled to a dismissal because of the Legislature’s amendments to Penal Code sections 188 and 189. The court denied defendant’s petition, finding the Legislature violated the constitutional limitation on amending or repealing initiative statutes when it passed Senate Bill 1437. The Court of Appeal reversed, finding "Sections 188 and 189 were enacted by the Legislature; ergo, sections 188 and 189 are legislative statutes. The Legislature did not violate the constitutional limitation on amending initiative statutes when it passed Senate Bill 1437 and amended sections 188 and 189 because they are not initiative statutes." Section 1170.95 was a new statute that established a procedure for eligible defendants convicted of murder to petition for relief. The Court determined the Legislature did not violate the constitutional limitation on amending or repealing an initiative statute when it passed Senate Bill 1437 and enacted section 1170.95 because it was itself a legislative statute that neither amended nor repealed any other statute.

In re Smith

Docket: E073871(Fourth Appellate District)

Opinion Date: May 26, 2020

Judge: Manuel A. Ramirez

Areas of Law: Constitutional Law, Criminal Law

A jury found petitioner Tom Smith guilty of first degree murder, assault by means likely to produce great bodily injury, dependent adult abuse, conspiracy to commit murder, custodial possession of a weapon, custodial manufacture of a weapon, and misdemeanor damage to prison property, along with various enhancements, arising from an attack on a fellow inmate at Patton State Hospital. Petitioner was sentenced to an aggregate term of 168 years to life. He appealed, raising, among other issues, the ineffectiveness of his trial counsel based on defense counsel’s closing argument, in which he conceded petitioner’s guilt of the crime but asked the jury to find him guilty of second degree murder, rather than first degree. The judgment was affirmed on direct appeal. Petitioner did not seek review by the California Supreme Court. However, he did file multiple petitions seeking to collaterally attack the judgment. One such attack, filing a habeas petition in light of the federal Supreme Court's decision in McCoy v. Louisiana, 584 U.S. ___ (2018). When that petition was denied, he raised the same issue to the Court of Appeal, which denied the petition. Petitioner then pursued the issue with the California Supreme Court, which issued an order to show cause to the Court of Appeal as to why petitioner was not entitled to relief based on McCoy, and why McCoy should not have applied retroactively to final judgments on habeas corpus. The Court of Appeal disagreed McCoy applied to this case; according to petitioner, his trial testimony demonstrated his intent to assert his innocence of the murder, as did his statements made in open court after counsel’s closing argument. The Court found the record did not show petitioner made an express and unambiguous intent to maintain factual innocence at that time. Thereafter, defense counsel made his closing argument, conceding petitioner’s involvement in the murder, at which point petitioner objected. "While petitioner did object during closing argument, it was after the concession had been made, so it cannot be said that at the time counsel made the concession, it was over petitioner’s intransigent and unambiguous objection."

People v. Machuca

Docket: F076580(Fifth Appellate District)

Opinion Date: May 26, 2020

Judge: Jennifer R.S. Detjen

Areas of Law: Criminal Law

A violation of Vehicle Code section 23153 is not a lesser included offense of gross vehicular manslaughter while intoxicated when, as here, the offenses involve separate victims. Defendant contends that his convictions for driving under the influence causing bodily injury (count 3) and driving with a blood alcohol concentration of 0.08 percent or more and causing bodily injury (count 4) must be reversed because they are lesser included offenses of gross vehicular manslaughter while intoxicated. The Court of Appeal held that defendant's convictions were proper because counts 3 and 4 arose from injuries to a different victim than the conviction on count 2.

People v. Smith

Docket: A155689(First Appellate District)

Opinion Date: May 26, 2020

Judge: Mark B. Simons

Areas of Law: Criminal Law

Smith pled no contest to assault with intent to commit rape and admitted prior conviction and prison term allegations. Before his release on parole in 2010, he was declared a sexually violent predator (SVP) under Welfare and Institutions Code 6600 and was committed to Coalinga State Hospital. He was released in November 2015 and placed in the Conditional Release Program. In March 2016, Smith sought unconditional discharge. The court found Smith had established probable cause that he was no longer a public safety risk. The matter was continued to allow the state to prepare an expert evaluation. In May 2017, the government filed a petition to revoke conditional release. The court granted the petition and recommitted Smith, then determined that the unconditional discharge petition was superseded by the hearing. Smith filed a Marsden motion based on his counsel’s failure to pursue an unconditional discharge. The court determined its previous ruling that Smith's petition was superseded was erroneous and set a jury trial. The government successfully sought reconsideration, arguing the court had inherent authority to reconsider its probable cause finding and that an SVP must be on conditional release for at least one year before seeking unconditional discharge. The court of appeal affirmed, in favor of the government. The statute requires a committed person to have been on conditional release for at least one year when the unconditional discharge petition is filed and to remain on that status throughout the duration of the unconditional discharge proceedings.

In re Samantha H.

Docket: B300065(Second Appellate District)

Opinion Date: May 26, 2020

Judge: Stratton

Areas of Law: Family Law

The Court of Appeal affirmed the juvenile court's order selecting adoption as the permanent plan for mother's daughter. The court held that mother's challenge to the juvenile court's order of adoption is waived; the trial court was under no obligation sua sponte to inquire whether M.W. (the mother of Samantha's godmother) had been advised of and rejected the option of guardianship in favor of adoption; and where, as here, all statutory requirements to terminate parental rights have been met, the non-relative prospective adoptive parent has been clear and consistent in her willingness and desire to adopt the child, and the court has found the adoptive parent suitable and the child thriving in the adoptive parent's care and custody, the court saw no reason whatsoever to derail this adoption.