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September 2014 Archives

Prop. 46: Malpractice Awards, Doctor Shopping, and ... Drug Tests?

Welcome to the first in a series about this year's California ballot propositions. Hopefully we can help sort out the wheat from the chaff when it comes to claims about what these propositions do and don't do.

Rudely interrupting my "Law & Order" marathons are commercials for Proposition 46, which I'm told was written by "trial lawyers" seeking more money. Those grubby trial lawyers! They're apparently behind all bad things, according to the Chamber of Commerce. But if there's one thing that law school -- and those "Encyclopedia Brown" novels -- taught me, it's to examine the evidence. And never trust Bugs Meany.

Vinod Khosla Loses in Court, but Beach Access Battle Continues

The last time we saw Voldemort, I mean Vinod Khosla, the Silicon Valley billionaire was playing the role of mystical villain to local beachgoers. The venture capitalist purchased property in San Mateo County that contained a private access road -- the only access to Martin's Beach, which is otherwise surrounded by cliffs -- and closed off the road.

The history nerd in us quivered: The case involved property rights derived from the freaking Treaty of Guadalupe Hidalgo. Yeah, that one, the one that predated America and ended the Mexican-American War. These exact land rights were upheld by the U.S. Supreme Court in 1860, a few years before the California Constitution was revised to protect water access. Last October, a judge ruled that because the grant and treaty predated California's Constitution, Khosla's land was exempt from state law.

Yesterday, in a parallel case, a second judge reopened access to the beach, but it may be only temporary -- her holding was that Kosla was missing a permit. Still, two more challenges, in the legislature and in a state agency, are pending.

Gov. Brown Signs 'Yelp Bill' to Bar Non-Disparagement Agreements

You've heard the horror stories before. Businesses getting offensive with bad reviews on Yelp have been requiring customers to sign non-disparagement agreements. Those customers purportedly can't write negative reviews (though they're more than free to write stellar reviews).

In another case, a dentist's office required a potential patient to sign over to them the copyrights to any future reviews she might write about the dentist.

California has had enough.

Uber 'Gratuity' Lawsuit Can Move Forward, Federal Judge Rules

Uber is finding itself "disrupted" right into federal court, this time over allegations that it's charging users a 20 percent gratuity but not paying that to employees -- excuse me, partners (because they're not employees and Uber isn't operating a transportation company).

On Wednesday, Judge Edward Chen in San Francisco granted part of Uber's motion to dismiss, but left in place an unfair trade practice claim.

'Six Californias' Left Off Ballot; Our Own Scottish Moment Must Wait

As Scotland prepares to vote whether to end its 307-year affiliation with the United Kingdom, we're left to wonder what could have been if California were put to the same question.

As you might know, Tim Draper, a Silicon Valley venture capitalist, sponsored a ballot initiative to split our beloved Golden State into six different states: a northern state called "Jefferson" from Chico to Oregon, a band surrounding Sacramento from the ocean to Nevada ("North California"), a "Central California" state, a Los Angeles-centric state called "West California," a Bay Area and coastal state ("Silicon Valley" -- really?), and a San Diego-based state called "South California."

Sadly, however, our billionaire's ballot initiative won't be appearing anytime soon.

Lawsuit: SRO Owners in S.F. Illegally Renting to Airbnb Guests

We've all suspected for a while now that Airbnb is decreasing the housing stock in San Francisco, where housing units are a precious asset. Though Airbnb either disputes the claim or says it's not a big deal, investigations by the San Francisco Chronicle suggest that Airbnb hosts in San Francisco aren't just renting a room in their apartment or renting the apartment when they're not there; a significant number of hosts may be leasing a totally separate apartment from where they live as a side business.

Attempted Threats Must Be Objectively Threatening: Cal. Sup. Ct

In the wake of Facebook threats, which are becoming all the rage these days at the U.S. Supreme Court, the California Supreme Court had occasion to address the law of attempting to make a criminal threat.

Fairly recently -- just in 2001 -- the state supreme court recognized the existence of attempting to make a criminal threat. The elements are basically the same as in the completed crime, except that, because of circumstances outside the defendant's control, the threat doesn't reach the intended victim, or the victim doesn't understand the threat, or doesn't construe it as a threat.

In People v. Chandler, the court -- in an opinion by newish Justice Goodwin Liu -- had to decide whether attempting to make a threat required only a subjective intent to threaten, or additionally required that the threat be objectively threatening to a reasonable person.

2 Calif. Judges Censured for Intimate Relations in Chambers

Yes, judges behave badly, too. But when they behave badly, it makes lawyers and courts look bad.

This week, the Commission on Judicial Performance issued a pair of sanctions to two different superior court judges who both engaged in some inappropriate conduct in camera.

Prosecutor Points to Lesbianism as Motive for Molestation

"[She is] attracted to women. OK? She has the motive. I'm not saying that everyone who's attracted to women is going to attack children or going to molest children, but we know that she is attracted to females, and [the victim] is a female child."

That, folks, is an improper argument: sexual orientation as motive for molesting a child. And when the defendant's counsel pointed out the impropriety of the argument in his own closing, and argued that the prosecutor showed them the booking photo of the accused to further that argument, the prosecutor doubled down:

"Does she look like a lesbian to you? Of course, not every lesbian looks like that. But you have to ask yourself, why would a woman dress this way? Why would a woman have her hair that short? Is it because she is sexually attracted to other females? It had evidentiary value. And the defendant is charged with sexually molesting a female child, so her sexual orientation and whether or not she's ever had a boyfriend or whether or not she's attracted to females or whether or not she looks like this when she's arrested and then looks like that for trial is absolutely relevant."