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…
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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…
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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A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen.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…
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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…
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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…
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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…