Archive for July, 2007

Is the Landlord Responsible for Gang Violence?

Tuesday, July 31st, 2007

The California Supreme Court has granted protection for civil liability (if not the flying bullets) to landlords with its decision in Castaneda v. Olsher.  The court ruled that a mobilehome park landlord had no specific duty to avoid renting spaces to gang members or to evict gang members who were renters.  As the court noted, California law allows park owners only two reasons to refuse rental of a space on which the mobilehome is installed:  inability to pay rent or past history of violating park rules.  Imposing a new duty to avoid rentals to gang members would, in the view of the Supreme Court, require landlords to risk civil liability for basing decisions on ethnicity, clothing, or presence of teenage children.


The court also ruled that the plaintiff had not established enough facts to impose liability for failure to have more street lights or an on-site security guard.  In dissent, Justice Kennard argues that this portion of the court’s decision confuses duty with breach.  In her view, the question was whether the landlord failed to act reasonably (by failing to install more lighting or to hire a security patrol), and that is a question that should be decided by the jury.

Attorney Fees Free Rider!

Monday, July 30th, 2007

Normally, a contractual provision providing for an award of attorney fees is enforceable against either party to the contract.  What happens, however, when the contract is assigned for the benefit of creditors?  If the assignee sues and loses, who bears the burden of the attorney fees?


According to the Second District Court of Appeal, the assignee gets a free ride.  In this case, the assignee for a bankrupt tenant sought to invoke the attorney fees for the benefit of the creditors when it brought the law suit against the tenant’s landlord.  When the assignee lost, however, it argued that it had no obligation to pay attorney fees.   Since it was not bound by the contract, the assignee argued, it could not be liable for attorney fees under that contract.  The appellate court agreed, and the landlord was left to try to collect the fee award from the bankrupt tenant.

California Supreme Court Strikes Down Local Forfeiture Law

Friday, July 27th, 2007

Finding implied preemption, the California Supreme Court struck down the City of Stockton’s ordinance providing for forfeiture of cars used in solicitation of prostitution or purchase of illegal drugs.


Preemption is different under state law differs significantly from the federal preemption doctrines you may have studied in law school.  State constitutions often vest local governments with some portion of the “police power.”  Under the California Constitution, local governments not only have the power to legislate on items not covered by state law, they also have the power to displace conflicting state pronouncements on matters of “local concern” (a term that the courts have yet to successfully define).


With that background in mind, understand that preemption in California law comes in four flavors:  the state law expressly preempts local regulation, the state law fully occupies the field and thus preempts local measures by implication, the local law duplicates the state law, or the local measure contradicts state law.  In any circumstance, however, since the local government has a constitutional grant of the police power, a crucial step in the analysis is whether the matter at issue is a matter of local or statewide concern.


In the case of the local forfeiture law, there were state laws that provided for forfeiture of vehicles used in certain drug transactions.  There was no express provision of the state law displacing local regulation.  However, the court ruled that the state law’s comprehensive scheme of regulation and punishment for purchasing, selling, and possessing illegal drugs preempted local efforts at regulation by implication.

Some Precedent Lasts Forever

Tuesday, July 24th, 2007

What happens if a bill approved by the House is not quite the same as the bill approved by the Senate?  Non-lawyers in the audience will be quick to point out that the bill cannot become law.  After all, to become law the bill has to be approved by both the House and the Senate and then signed by the President.


Of some interest, the application of the rule results in a “nonmerits dismissal.”  The case is dismissed before the court determines whether the parties have standing to sue.  That is, the rule cuts off the court’s authority even to consider a claim.  It does not even fall under the rubric of a motion to dismiss for failure to state a claim.  Thus, the court need not take the allegations of the complaint as true when ruling on the motion to dismiss.  Instead, the district court determines “whether the presiding officers of the House and Senate in fact signed the enrolled bill.”  If so, the only question left is whether the enrolled bill requires dismissal as a matter of law.

Give the Court a Chance To Decide the Issue

Monday, July 23rd, 2007

The California Supreme Court today reminded appellate practitioners that many of the choices they make in the course of the appeal may limit what the court can or will do in the ultimate decision.

First off, if you think there is a problem with the way the Court of Appeal stated the facts in its decision, you need to call that to the appellate court’s attention with a petition for rehearing.  Otherwise, the Supreme Court will feel free to take its “statement of facts largely from [the Court of Appeal] opinion.”

Second, be aware of what issues are encompassed in the grant of review.  Today’s decision involved a question of who had the burden of proof on various issues in an eminent domain compensation proceeding.  The court ruled that the burden at issue was for the production of evidence rather than proof.  The analysis of the record stopped at that point, since the issue of whether the plaintiff had carried its burden of presenting evidence on the question was not included in the grant of review.

Finally, the Supreme Court punctuated this series of rulings by noting:

Having now determined the respective roles of the judge and jury in connection with severance damages and the nonexistence of a burden of persuasion with respect to such damages, we have no cause to determine whether the trial court overstepped its bounds in excluding evidence of certain severance damages prior to trial or whether the trial court erred in finding that certain other severance damages had not been established at trial, inasmuch as MWD (with one exception) has not challenged here any part of the Court of Appeal’s opinion relating to severance damages, nor did Campus Crusade challenge in its answer any such ruling by the trial court. 


Duck the SLAPP – Twice!

Thursday, July 19th, 2007

What if the trial judge rules in your favor based on an erroneous view of the law?  You may still have a chance to preserve the favorable ruling on appeal, if your appellate standard of review is “independent judgment.”


Midland Pacific Corp. v. King involved a contract dispute over development of property owned by King.  According to the complaint, Midland agreed to pay King a set amount per approved developable lot, based on the assumption that the city would approve a plan for 120 lots.  During the city approval process, the housing market took off.  Midland alleges that King threatened to submit a plan for 190 lots unless Midland agreed to an increase in the sales price.  King’s filing of a plan for 190 lots resulted in the breach of contract action.

King responded to the suit by filing a special motion to strike under Code of Civil Procedure §425.16 (the so-called Anti-SLAPP motion).  King argued that the basis of the suit was his filing of the proposed tract map – an exercise of his rights to petition government under the First Amendment.  The trial judge rejected that argument and denied the motion. 

The Court of Appeal held that the trial judge erred, since the filing of the tract map was indeed protected by the right to petition and thus also protected by the Anti-SLAPP law.  However, the motion to dismiss under Section 425.16 can still be defeated if the plaintiff demonstrates a probability of prevailing on the claim.

Although the trial court rested its decision on an erroneous basis, the Court of Appeal reviews legal issues under an independent judgment standard.  In this case, that was enough for the Court of Appeal to decide that it could decide, in the first instance, whether the plaintiff demonstrated a probability of success on the merits.  Finding that Midland had demonstrated a probability of success, the Court of Appeal upheld denial of the motion to dismiss.

Do You Have a Right to Privacy if You Know Your Privacy Will Be Invaded?

Wednesday, July 18th, 2007

The California Constitution protects the right to privacy against both government and private intrusion.  To state a cause of action under the constitution, you must demonstrate the existence of a legally protected informational or personal autonomy privacy interest and show that you have a “reasonable expectation of privacy.” 

In Sheehan v. The San Francisco 49ers, Ltd., the panel majority agreed that conducting pat down searches of everyone entering the football stadium did implicate a legally protected interest in personal autonomy.  However, since the Sheehans knew of the pat down policy, the Court ruled they had no reasonable expectation of privacy and that the complaint could be dismissed at the pleading stage.


The interesting twist in this case is that the original complaint alleged violations of privacy rights for searches conducted during the 2005 season.  In order to maintain a live controversy, the parties agreed to amend the complaint to state the same claim for the 2006 season.  The Court ruled that since the Sheehans learned of the searches in 2005, before they purchased the 2006 season tickets, they no longer had a reasonable expectation of privacy that would support a claim under the constitution.  Since the complaint sought only declaratory and injunctive relief, the only relevance of the 2005 searches was to destroy the expectation of privacy for the 2006 season.  This allowed the court to dismiss the Sheehans’ complaint at the pleading stage.

Oops!! Take Care What You Say in Your Brief

Tuesday, July 17th, 2007

An apparent off-hand comment in your trial brief can end up sinking your claim to a measure of damages.


Plaintiff’s closing brief to the trial court contained the following statement:  “Should the court find that [defendant] and its authorized agents were negligent or made negligent misrepresentations about the project, the damages are essentially the same as the damages claimed by [plaintiff] in his breach of contract claim.”  In fact, however, the appellate court noted that the damages were not the same, and in the unpublished portion of the decision, ruled that plaintiff’s trial brief “did in fact concede his contract and tort damages were the same. As a result, he cannot show what further he would have gained if the trial court had determined Polyzos committed negligent misrepresentation.”


The dispute concerned a contract for custom cabinets.  The homeowner was dissatisfied with the finished product (the disagreement resulted in competing charges of assault and battery) and filed suit for breach of contract and negligent misrepresentation.

The court ruled that contract damages are either out-of-pocket cost of completion (what it would cost to finish the job as specified in the original contract) or expectation damages (the difference between the value of what you got and the value of what you bargained for) but not both.  Under these facts, the Court of Appeal ruled that contract damages were limited to the expectation damages.  The only way for the plaintiff to also receive the out-of-pocket damages would be to prevail on the negligent misrepresentation theory.  However, since the trial brief mistakenly asserted that the damages for the two claims “are essentially the same,” the plaintiff had waived the negligent misrepresentation claim.

Do Expert Panels Make Better Appellate Decisions?

Tuesday, July 17th, 2007

Would we get “better” appellate judging if cases were assigned to panels of “experts” in a particular area of the law?  A draft law review article suggests that expert panels are at least perceived by other federal judges to render more “accurate” appellate decisions.  In “An Empirical Investigation into Appellate Structure and the Perceived Quality of Appellate Review,” Professors Nash and Pardo studied decisions from Bankruptcy Appellate Panels and Federal District Court decisions in bankruptcy appeals over a three-year period.  The authors discovered that there was only a slight edge to the Bankruptcy Appellate Panels in decisions upheld by the Courts of Appeals.  However, the decisions of those appellate panels were cited as authoritative far more frequently by other federal courts than were similar bankruptcy appeal decisions by District Court Judges.

Does this mean that the expert panels produce better decisions?  The authors are careful to claim only that the evidence suggests that there is a perception that those decisions are more accurate, or at least more authoritative. 

There has long been tension between counsel seen as “subject matter experts” and the “generalist” courts to which they submit their cases for decisions.  The “experts” can often be heard to argue that the judge or appellate panel simply did not understand the arcane legal issue in the case.  Perhaps that is true in some cases, yet care must be taken before we move toward “expert panels.”  No set of legal rules operates in a vacuum.  Ultimately, legal policy (and the courts certainly see themselves as policy makers) must be made on the basis of how the rule fits into the universe of legal rules – not just how it works in a narrow niche.

The Trial Court Is Not a “Potted Plant”

Monday, July 16th, 2007

Just how de novo is de novo review?  The Third District Court of Appeal has warned that de novo review does not mean that appellants can ignore the trial court ruling altogether.  In Vineyard Area Citizens v. City of Rancho Cordova, the Court of Appeal acknowledged that in a CEQA case it reviews the agency’s action, not the trial court’s ruling.  That does not mean, however, that the trial court’s decision is irrelevant.  “Treating de novo review as if the trial court’s ruling in a CEQA case is merely a ticket of admission to the Court of Appeal improperly denigrates the trial court’s role.” 

So, just what does that mean in practice?  How will the court treat the trial court ruling?  The Court of Appeal in this case is instructing appellate counsel to treat the trial court ruling with respect.  The court quotes from the trial ruling in the decision and almost treats it as a “super amicus” in the case.  Appellate counsel should confront the rationale and conclusions of the trial court in their argument to Court of Appeal.  Treat the trial court decision as something similar to an amicus brief from the Attorney General – entitled to respect, but not deference.