Raiders Lose on Independent Review of Order Granting New Trial

Congratulations!  The court has granted your motion for a new trial!

Now, just pray the trial judge doesn’t screw it up.

Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657.  In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts the burden of persuasion from the party appealing the order granting the new trial to the party defending the appeal . . .
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Confusing Jurisdiction with Forum Selection

It’s common to see forum selection clauses in contracts.  It’s also common to see such clauses purport to limit “jurisdiction” to the courts of a given state or even a specific county within the state.

Nice try.  No matter the skill of the lawyers, parties simply cannot strip a court of subject matter jurisdiction by private agreement, as we are reminded by the Third District Court of Appeal in Miller-Leigh, LLC v. Henson, case no. C051652 (June 28, 2007).  The parties to a lease guaranty for leased property in Arizona included a provision stating that the guaranty was governed by Arizona law and that “Arizona is the proper jurisdiction for any matters relating to” the lease or guaranty.  The lease provisions was more restrictive, stating that “any court action relating to this Lease shall be instituted and prosecuted only in a court of competent jurisdiction in Maricopa County, Arizona, and each party waives his rights, if any, to institute or prosecute suit in any forum other than Maricopa County, Arizona.”  The California trial court sustained defendants’ demurrer brought on the ground that it lacked subject matter jurisdiction over the claims for breach of guaranty, fraud, account stated and open book account, but denied their motion for attorney fees because it held it likewise lacked jurisdiction to decide the fee motion.

The Court of Appeal reverses.  While the trial court could have chosen to enforce the forum selection clause, it erred in dismissing for lack of jurisdiction.  The trial court’s subject matter jurisdiction over these claims cannot be limited by the agreement of the parties.  The concepts of subject matter jurisdiction and forum selection are distinct, and the forum selection clause cannot be enforced by a demurrer asserting lack of subject matter jurisdiction.

This is not to say, of course, that the forum selection clause is unenforceable.  Two statutory procedures exist for challenging the forum.  Code Civil Procedure section 418.10, subdivision (a)(2) authorizes a motion to dismiss on the ground of inconvenient forum, and Code of Civil Procedure section section 410.30, subdivision (a) provides that a court may dismiss an action “in whole or in part on any conditions that may be just” where “in the interest of substantial justice an action should be heard in a forum outside this state.”

Exclusionary Rule Beats the Criminal Rap — but not the Administrative One

A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen.  While detaining the driver during the check on the ownership of the vehicle, the officer notes signs of drinking and the driver admits to having been drinking.  He is arrested and later blows a 0.12 breathalyzer.

In his criminal prosecution, he moves to suppress all evidence obtained or seized in connection with the traffic stop.  Easy call.  Case dismissed.

When the DMV holds an administrative review of his driving privileges, the driver makes the same motion.  Denied, and driver’s license is suspended for a year.  The superior court denies his petition for writ of mandate, finding no error.  Driver appeals. One can better settle such disputes if they were to hire attorneys from places like, who iron out the situations in a diplomatic manner.

In Park v. Valverde, case no. G037778 (June 26, 2007), the Fourth District Court of Appeal affirms.  Supreme Court precedent requires a balancing of “the policies underlying the rules and the purposes and nature of the proceeding” when determining whether to apply exclusionary rules.  Given that the purpose of the DMV proceeding is to get drunk drivers off the road rather than to impose punishment and excluding evidence would only marginally increase any deterrent effect on unlawful police conduct, the court finds that the exclusionary rule does not carry over into the administrative proceedings under the facts of this case.

California Supremes Split on when Solicitation to Murder Becomes Attempt

Well, it’s not much of a split. It’s a 6-1 decision with Justice Werdegar dissenting.

The California Supreme Court holds in People v. Superior Court (Decker), case no. S130489 (May 21, 2007), that a defendant who hired an undercover detective as a “hit man,” made a down payment, provided the hit man all of the details necessary for him to carry out the killing — including descriptions of the intended victim and her home, car, workplace, and daily routine — and then stated his unequivocal wish that the hit man follow through with the killing, can be charged with attempted murder.

The court is forced to draw the line in this case between solicitation and attempt, and it’s not an easy thing to do. Both the majority opinion and Justice Werdegar’s dissent are persuasively written.

Professor Martin has this post about the case at California Appellate Report, in which he writes:

But, according to the majority, what does it take for an “attempt”? Not much. Basically, just the tiniest thing. Just add a tiny little bit of movement (e.g., a downpayment) to a solicitation and, boom, you’ve got an attempt.

I’d say that’s a little unkind to the majority. Even though the majority does rely heavily on the “slight-acts rule,” the opinion makes clear that neither making the down payment nor any other act in addition to solicitation will necessarily suffice as an “attempt.” Key to the majority seems to be the notion that Decker had set all of the wheels in motion such that without interference, the crime would be completed with no further participation from him:

In finding the record sufficient to hold Decker to answer to the charges of attempted murder here, we do not decide whether an agreement to kill followed by a downpayment is always sufficient to support a charge of attempted murder. Whether acts done in contemplation of the commission of a crime are merely preparatory or whether they are instead sufficiently close to the consummation of the crime is a question of degree and depends upon the facts and circumstances of a particular case. A different situation may exist, for example, when the assassin has been hired and paid but the victims have not yet been identified. In this case, however, Decker had effectively done all that he needed to do to ensure that Donna and her friend were executed. (Emphasis added, citations omitted.)

But I agree with Professor Martin that the case is a “good review of the elements of solicitation and attempt.”

Jusice Werdegar’s dissent intrigues by raising, but not reaching a conclusion, on the issue of whether Decker actually did everything necessary for the crime to be committed in light of the fact that the undercover detective posing as the hit man had no intention of carrying out the crime.

California: Pay for Missed Breaks is a Wage Rather than a Penalty for Statute of Limitations Purposes (Updated)

A second important holding out of Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), is that the “one additional hour of pay” provided for in Labor Code section 226.7 constitutes a wage or premium pay, a claim for which is subject to a three-year statute of limitations (Code Civ. Proc., § 338) rather than a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340). The court finds the language of section 226.7 ambiguous and thus sets out on a lengthy and comprehensive analysis of:

extrinsic sources, such as the ostensible objectives to be achieved by the statute, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction and the statutory scheme of which the statute is a part.

The end result seems consistent with the policy that “statutes regulating conditions of employment are to be liberally construed with an eye to protecting employees.”

Update (5/16/07): In a post called “Defense Firms Weigh In on Murphy,” the Wage Law blog notes that the Supremes have denied a petition to modify the opinion in a way designed to head off negative consequences to employers that “will flow from the Supreme Court’s designation of the hour of pay as a wage.” The post includes a round-up of commentary on the case by “large firm” blogs.

California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional

In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining whether an injunction restraining defamation may be issued, therefore, it is crucial to distinguish requests for preventive relief prior to trial and post-trial remedies to prevent repetition of statements judicially determined to be defamatory.”

The majority concludes from U. S. Supreme Court decisions upholding injunctions against speech adjudicated to be obscene or in violation of gender discrimination laws that these decisions were consistent in holding that “an injunctive order prohibiting the repetition of expression that had been judicially determined to be unlawful did not constitute a prohibited prior restraint of speech.” Finally, noting that the Sixth Circuit Court of Appeals and the supreme courts of Ohio, Georgia and Minnesota had upheld injunctions against speech already proven to be defamatory, the majority holds that “following a trial at which it is determined that the plaintiff defamed the defendant, the court may issue an injunction prohibiting the defendant from repeating the statements determined to be defamatory.”

The Court nonetheless upholds the Court of Appeal’s decision striking down the injunction, but only because the majority found the injunction too broad. It remanded the case to allow the injunction to be tailored more narrowly and consistent with its opinion.

Justices Kennard and Werdegar, in two solo “concur and dissent” opinions, agree that the injunction should be struck down, but would not remand to allow a more narrowly tailored injunction to replace it. Neither would allow any prior restraint in the absence of a compelling state interest or public policy in tension with free speech rights, and neither found such a competing consideration in this case.