Towing legally- parked cars for unpaid tickets violates 4th Amendment (Coalition v. SF)

 

Warrantless tows of parked vehicles for past parking violations constitute an unlawful seizure of private property

As do other municipalities, the City and County of San Fransisco tows vehicles that are lawfully-parked at present for past violations of parking rules and resulting unpaid parking fines.  The unstated subtext, of course, is that there may be persons residing in these lawfully-parked vehicles as such vehicles may also be used for purposes of sleeping.  At the same time, such vehicles are often considered abandoned as they be left in a particular spot for several days. 

The Coalition for the Homeless (“Coalition”) sued the City and County of San Francisco, law enforcement, and the local transit authority (“San Francisco”).  The Coalition the towing, and thus seizure and search, of a vehicle violates the Fourth Amendment, which bars warrantless searches unless there are “exigent circumstances” and/or other recognized exceptions to the requirement a warrant is needed.  

The California Court of Appeal for the First District agreed. (Coalition on Homelessness v. City and County of San Fransisco (July 21, 2023) A164180.)  Despite broad-ranging issues involving civil liberties, due process, and the enforcement of parking rules, the appellate court stated the issue succinctly and therefore held a Fourth Amendment analysis was dispositive:

The principal issue on appeal is whether the challenged warrantless tows are permissible under the vehicular community caretaking exception to the Fourth Amendment’s warrant requirement. We conclude respondents have not shown that legally parked cars with unpaid parking tickets that present no threat to “public safety and the efficient movement of vehicular traffic” may be towed under that exception. In particular, we reject respondents’ argument that their interest in deterring parking violations and nonpayment of parking fines justifies warrantless tows under the vehicular community caretaking exception. Such deterrence does not justify warrantless tows of lawfully registered and lawfully parked vehicles. (Id., p. 2; footnote and citation omitted.)

As discussed below, the appellate court also rejected the argument that towing the entire vehicle for unpaid parking tickets was justified as a “forfeiture” of private property.

The supposed “community caretaking” exception to the requirement that a warrant issue before a search and/or seizure does not apply to towing legally-parked vehicles

The First District began by discussing the statute upon which San Francisco relied for the authority to tow vehicles.  Vehicle Code section 22651 permits towing of vehicles where there is notice of multiple parking violations and there is no response within 21 days. Despite this statute, the Coalition filed a Petition for Writ of Mandate and Injunctive and Declaratory Relief.  San Francisco admitted it did not obtain a warrant before towing lawfully-parked vehicles, but argued that under section 22651 no warrant was required.  The trial court found no warrant was required pursuant to the so-called “community caretaking” exception to the Fourth Amendment and the Hon. Ethan P. Schulman of the San Francisco Superior Court therefore entered judgment for San Francisco.  Plaintiff appealed.

California has adopted Federal law as to the scope of the Fourth Amendment, and the Coalition court explained it was readily-apparent that towing a car is a “seizure” as defined by said amendment.  It also held the government has the burden of showing a particular seizure falls under one of the “few” and “specifically established” exceptions to the warrant requirement:

“ ‘A seizure conducted without a warrant is per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The burden is on the Government to persuade the . . . court that a seizure comes under one of a few specifically established exceptions to the warrant requirement.’ ” (Miranda, supra, 429 F.3d at p. 862; see also City of Los Angeles v. Patel (2015) 576 U.S. 409, 419; Ovieda, supra, 7 Cal.5th at p. 1041 [“ ‘The burden is on the People to establish an exception applies.’ ”].)  (Id., p. 7.)

The appellate court found that San Francisco did not meet this burden, as it did not make any showing that a legally parked car was a public safety or health threat.  This is a crucial fact as the “community caretaking” exception has only been applied where there is such a present threat.  In point of fact, Coalition analyzed the scope and history of relevant precedent and found that, in reality, there was no “community caretaking” exception to the requirement that a warrant issue; rather, there is only a “vehicular community caretaking” exception, and such applies only where, at the time of the seizure, the vehicle is parked illegally. (Id., p 11-12; original emphasis.)  Therefore, this exception must serve an “immediate public need.” (Id.)

Coalition flatly rejected the argument that such “need” includes deterring future and hypothetical violations of parking regulations by making it possible to seize a legally-parked vehicle as a result of prior parking violations which have not yet been remedied:

We do not doubt that the threat of impoundment may encourage compliance with parking laws, by owners at all income levels. However, respondents cite no authority that such deterrence is a sufficient basis for a warrantless tow of a legally parked car under the vehicular community caretaker exception. To the contrary, the Miranda [v. City of Cornelius (9th Cir. 2005) 429 F.3d 858, at 865] court expressly rejected a deterrence rationale as justification for impoundment of a vehicle that was not “actually ‘impeding traffic or threatening public safety and convenience’ on the streets.” (Id., p. 18; other citations omitted but original emphasis.)

Not surprisingly, San Francisco argued the failure to tow legally-parked vehicles would mean that parking citations could be ignored with “impunity.”  But Coalition explained there in fact other remedies to collect these monies other than towing a legally-parked vehicle.  For example, where there has actually been an adjudicative process as to unpaid fines, the resulting default judgment may result in towing and impoundment of a vehicle even if legally parked. (Id., p. 26.)  Further, Coalition stressed its holding did not apply where, for example, there was an immediate need for a tow, the vehicle was unregistered, or the vehicle was otherwise illegally parked. (Id., p. 20.)

Finally, the First District rejected the claim that towing a legally-parked vehicle in order to collect unpaid parking violations was akin to a “forfeiture” of private property, i.e., a supposed “progressive forfeiture” based upon the fact the vehicle may, at some point, be legally sold in order to pay unpaid parking tickets.  Cases implying a vehicle may be sold after impoundment as a “forfeiture” were not analogous because here the vehicles were not subject to forfeiture at the time of towing and therefore would only be forfeited at a later date if the amounts owed were not paid.

The appellate court’s public policy analysis was less than robust

Other than responding to the arguments set forth in the briefs, the appellate court did not utilize this opportunity to fully discuss the public policy implications of its ruling vis a vis the towing policy.  On the one hand, one may argue that Fourth Amendment protections should not depend on how courts interpret ever-shifting public policy considerations. 

But it cannot be said that exceptions to the Fourth Amendment are not based, at least in part, upon rationales that involve public policy.  For example, the well-recognized “exigent circumstances” exception is rooted in concerns for public safety and the harm to public safety from the delay occasioned by obtaining a warrant, and therefore the application of this exception cannot be divorced from public policy.  

There is no doubt that the public policy issues involved in towing a vehicle which is presumably worth several times the amount of unpaid parking tickets have many dimensions.  For example, to the extent someone lives in the vehicle, such persons may now have nowhere to sleep.  

Further, the primary beneficiary of the towing policy may often be the towing company itself when one considers the increasingly large fees charged to tow and impound vehicles.  At the same time, general knowledge that warrantless tows of legally-parked vehicle are forbidden does nothing to encourage payment of parking tickets.  Further, the due process which a default judgment affords a vehicle owner prior to the vehicle being impounded benefits the owner but not necessarily the municipality.  The rejoinder is that the Fourth Amendment is not designed for the purpose of making law enforcement more efficient but in order to protect private citizens from governmental intrusion, and therefore applies even where its effect is quite the opposite.

Justice Thomas'' concurrence in the landmark case Students for Fair Admissions v. Harvard

Justice Thomas’ concurrence declares “[t]wo discriminatory wrongs cannot make a right” and we should not pick “winners and losers” based upon “the color of their skin”

With Students for Fair Admissions v. Harvard 600 U. S. ____ (2023), a six to three majority held that using race in admissions to universities violates the equal protection clause of the 14th Amendment.  Justice Roberts wrote the majority opinion, and Justices Sotomayor, Kagan, and Jackson dissented.  Much attention has been given to the dissent of Justice Jackson and her citation to facts in turn cited by amicus curie. [1]  

This brief article, however, will focus solely upon the concurrence of Justice Clarence Thomas and his rationale for both supporting the majority and also for writing his strongly-worded concurrence. [2]  Justice Thomas explained that “all such discrimination,” including what is referred to as either race-based admissions or “affirmative action,” has what he called pernicious effects:

Because the Court today applies genuine strict scrutiny to the race-conscious admissions policies employed at Harvard and the University of North Carolina (UNC) and finds that they fail that searching review, I join the majority opinion in full. I write separately to offer an originalist defense of the colorblind Constitution; to explain further the flaws of the Court’s Grutter jurisprudence; to clarify that all forms of discrimination based on race—including so-called affirmative action—are prohibited under the Constitution; and to emphasize the pernicious effects of all such discrimination. (Concurrence by Thomas, p. 2.)

Justice Thomas was especially critical of Grutter v. Bollinger, 539 U. S. 306, 326, a decision of 20 years ago, which applied strict scrutiny to policies favoring one race over another in school admissions but noted that such preferences — ostensibly to redress past wrongs by virtue of student admissions today — should have an ending time-limit.  As Griutter held, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” (539 U. S., at 343.)  Thomas made it clear Grutter was wrongfully decided and should be overturned:

I wrote separately in Grutter, explaining that the use of race in higher education admissions decisions—regardless of whether intended to help or to hurt—violates the Fourteenth Amendment. Id., at 351 (opinion concurring in part and dissenting in part). In the decades since, I have repeatedly stated that Grutter was wrongly decided and should be overruled. Fisher v. University of Tex. at Austin, 570 U. S. 297, 315, 328 (2013) (concurring opinion) (Fisher I ); Fisher v. University of Tex. at Austin, 579 U. S. 365, 389 (2016) (dissenting opinion). Today, and despite a lengthy interreg- num, the Constitution prevails.  (Id., p. 3)

After a lengthy discussion of the phrase “equal protection under the law” the enactment of both the post-Civil War constitutional Amendment and the Civil Rights Acts of 1866 and 1875, Justice Thomas then discussed the supposed rationale for allowing admissions to be a deciding factor in school admissions.  Specifically, the arguments that such mesas meet the “strict scrutiny” the Constitution demands where the government itself (or those taking government aid) distinguishes between citizens based on their race.  He therefore discussed the rationale that “racial diversity” improves education, noting the lack of any argument that such improves, for example, text scores, and noting that Harvard and similar universities argue that racial diversity increases the viewpoints students may be exposed to while, at the same time, such schools do not considere diversity of viewpoints important in areas other than race qua race:

More fundamentally, it is not clear how racial diversity, as opposed to other forms of diversity, uniquely and independently advances Harvard’s goal. This is particularly true because Harvard blinds itself to other forms of applicant diversity, such as religion. See 2 App. in No. 20–1199, pp. 734–743. It may be the case that exposure to different perspectives and thoughts can foster debate, sharpen young minds, and hone students’ reasoning skills. But, it is not clear how diversity with respect to race, qua race, furthers this goal. Two white students, one from rural Appalachia and one from a wealthy San Francisco suburb, may well have more diverse outlooks on this metric than two students from Manhattan’s Upper East Side attending its most elite schools, one of whom is white and [sic] other of whom is black. If Harvard cannot even explain the link between racial diversity and education, then surely its interest in racial diversity cannot be compelling enough to overcome the constitutional limits on race consciousness. (Id., pp. 25-26.)

Justice Thomas was therefore critical of the arguments set forth by Harvard and the University of North Carolina which, according to Justice Thomas, used vague goals of societal diversity — without explanation as to any specifics — to justify the use of admissions to disadvantage specific students in their admissions to specific universities. [3]  Justice Thomas therefore concluded that permitting consideration of race by publicly-funded universities gives the impression, and, indeed, constitutes a policy whereby race is used to pick “winners and losers:”

Most troubling of all is what the dissent must make these omissions to defend: a judiciary that picks winners and losers based on the color of their skin. While the dissent would certainly not permit university programs that discriminated against black and Latino applicants, it is perfectly willing to let the programs here continue. In its view, this Court is supposed to tell state actors when they have picked the right races to benefit. Separate but equal is “inherently unequal,” said Brown. 347 U. S., at 495 (emphasis added). It depends, says the dissent. (Id., p. 38.)

Therefore attempts to redress past discriminatory wrongs by virtue of discriminating in the present must do the following in order to withstand Constitutional muster:

First, to satisfy strict scrutiny, universities must be able to establish an actual link between racial discrimination and educational benefits. Second, those engaged in racial discrimination do not deserve deference with respect to their reasons for discriminating. Third, attempts to remedy past governmental discrimination must be closely tailored to address that particular past governmental discrimination.  (Id., p. 23.)

Such a standard is difficult to meet, noted Justice Thomas, where we are applying broad societal goals in a fashion that discriminates against specific students — such a Chinese-American applicant — applying for college today:

How, for example, would JUSTICE JACKSON explain the need for race-based preferences to the Chinese student who has worked hard his whole life, only to be denied college admission in part because of his skin color? If such a burden would seem difficult to impose on a bright-eyed young person, that’s because it should be. History has taught us to abhor theories that call for elites to pick racial winners and losers in the name of sociological experimentation. (Id., p. 53.)

In his characteristic style, Justice Thomas reinforces this point by noting the persons the dissenting Justices argue may be discriminated against today — Asian-Americans — have historically been discriminated against just as African-Americans have, noting law specifically targeting Asians and, of course, the forced internment and theft of property from Japanese-Americans during World War II. Indeed, the irony of the negative effect of Harvard’s admissions policies upon Asian-Americans should not go unnoticed:

As the Court’s opinion today explains, the zero-sum nature of college admissions—where students compete for a finite number of seats in each school’s entering class—aptly demonstrates the point. Ante, at 27. Petitioner here represents Asian Americans who allege that, at the margins, Asian applicants were denied admission because of their race. Yet, Asian Americans can hardly be described as the beneficiaries of historical racial advantages. To the contrary, our Nation’s first immigration ban targeted the Chinese, in part, based on “worker resentment of the low wage rates accepted by Chinese workers.” 

In subsequent years, “strong anti-Asian sentiments in the Western States led to the adoption of many discriminatory laws at the State and local levels, similar to those aimed at blacks in the South,” and “segregation in public facilities, including schools, was quite common until after the Second World War.” Indeed, this Court even sanctioned this segregation—in the context of schools, no less. In Gong Lum v. Rice, 275 U. S. 78, 81–82, 85–87 (1927), the Court held that a 9-year-old Chinese-American girl could be denied en- try to a “white” school because she was “a member of the Mongolian or yellow race.” 

Also, following the Japanese attack on the U. S. Navy base at Pearl Harbor, Japanese Americans in the American West were evacuated and interned in relocation camps.  Over 120,000 were removed to camps beginning in 1942, and the last camp that held Japanese Americans did not close until 1948. . . . In the interim, this Court endorsed the practice. Korematsu v. United States, 323 U. S. 214 (1944). 

Given the history of discrimination against Asian Americans, especially their history with segregated schools, it seems particularly incongruous to suggest that a past history of segregationist policies toward blacks should be remedied at the expense of Asian American college applicants. But this problem is not limited to Asian Americans; more broadly, universities’ discriminatory policies burden millions of applicants [4] who are not responsible for the racial discrimination that sullied our Nation’s past. (Id., p.  42-44; citations and footnotes omitted but emphasis added.)

____________________________

1 - Justice Jackson’s dissent makes several points worthy of further discussion, including her citation to the claims in amici briefs, which are worthy of further discussion.

2- Where this opinion will lead us in the future is also outside the scope of this relatively brief article and is also worthy of further discussion.

3 - As the majority opinion discussed, the current use of race lessens the percentage of certain racial groups, such as Asian-American or European-American students, in order to increase the number of members of other racial groups, such as African-American or Hispanic students.  However, it must be noted that the two universities at issue in Students for Fair Admissions have admitted their current practices are not based upon remediation of any specific past harm at their institution.

4 - There is no doubt the majority of such students of Asian-American and European-American ancestry were born in years from the late 1990's to the early 2000's.

Employer owes no duty to employee's spouse to prevent employee's exposure to COVID-19 (Kuciemba v. Victory)

Though an employee’s wife may sue the employer in tort, no duty is owed to the spouse to prevent COVID exposure to the employee

A unanimous California Supreme Court has ruled in favor of an employer whose alleged negligence caused the employee to become exposed to COVID-19 who in turn exposed his wife. (Kuciemba v. Victory Woodworks, Inc. (July 6, 2023) S274191.)  Plaintiff and appellant Corby Kuciemba brought suit and defendant and respondent Victory Woodworks filed a demurrer arguing, inter alia, that the wife’s“exclusive remedy” against the employer was a claim under the Worker’s Compensation system.  After the United States District Court for the Northern District of California granted a motion to dismiss the action under Federal Rules of Civil Procedure, rule 12(b)(6), plaintiff appealed to the Ninth Circuit Court of Appeal certified the following questions of law to the California Supreme Court which it deemed necessary to decide the appeal:

(1) If an employee contracts COVID-19 at the workplace and brings the virus home to a spouse, does the California Workers’ Compensation Act (WCA; Lab. Code, § 3200 et seq.) bar the spouse’s negligence claim against the employer? (2) Does an employer owe a duty of care under California law to prevent the spread of COVID-19 to employees’ household members? (Id., p. 1.)

The California Supreme Court assumed, for purposes of its opinion, that the facts plead were indeed true.  Plaintiff alleged negligence on the part of the husband’s employer which led to his exposure to COVID at a job site and, in turn, exposure to plaintiff, his wife:

On May 6, 2020, Robert Kuciemba began working for defendant Victory Woodworks, Inc. (Victory) at a construction site in San Francisco. About two months later, without taking precautions required by the county's health order, Victory transferred a group of workers to the San Francisco site from another location where they may have been exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. (Id., p. 3; footnotes omitted.)

Plaintiff also alleged she became ill with COVID and therefore required hospitalization.

The Supreme Court concluded the doctrine of Workers Compensation Exclusivity did not bar the wife’s complaint

While it did not ultimately change the outcome of the case, the Supreme Court agreed with appellant on the issue of workers’ compensation exclusivity.  Kuciemba thus held the suit by the wife was not barred by the fact her husband was the employee of the defendant, meaning the employer could be sued by the wife in a tort action.

Of course, in Kuciemba the wife’s suit was arguably “derivative” of her husband’s exposure to COVID.  Nonetheless, the Supreme Court found workers’ compensation was not her “exclusive remedy.”  Her claim was not “derivative” of his injury because, unlike a claim for loss of consortium, the claim of the wife depended on the husband’s exposure to COVID but not actual work-place injury to the husband: 

Accordingly, Victory's sole focus on viral transmission as a factual “but for” cause is misplaced. For the derivative injury rule to apply, Robert's infection must not only be the factual cause of Corby's illness; Corby's claim must also be “legally dependent on injuries suffered by” Robert. Robert's infection may have been a necessary factual step in the causal chain that led to Corby's illness. But it is not necessary for Corby to allege or prove injury to Robert to support her own negligence claim. The difference becomes clear when her claim is compared to a derivative claim like loss of consortium. If Corby had sought recovery for loss of consortium, she would have been required to prove that an injury to her spouse, Robert, in turn injured her by affecting their marital relationship. To support her negligence claim here against Victory, however, she need only show that Robert was exposed to the virus at the workplace and carried it home to her. (Id., p. 11; emphasis added)

This ruling was in accord with See’s Candies, Inc. v. Superior Court (2021) 73 Cal. App. 5th 66 (review denied April, 13, 2022, S272923).  It should be noted the Court of Appeal opinion in Sees was decided after the Ninth Circuit had already certified its question to the California Supreme Court.

However, dismissal of the suit was proper as no duty of due care was owed to the plaintiff by her husband’s employer

The wife being able to sue her husband’s employer in tort, the case then turned upon the second issue related to duty.  The Supreme Court explained that the scope of duty in California is statutorily-defined by Civil Code section 1714(a), stating broadly that “everyone” owes a duty of care “to another:” 

Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.

In Rowland v. Christian (1968) 69 Cal. 2d 108, the Supreme Court held that not all persons owe a duty of due care to all other persons in all circumstances.  As the Supreme Court later clarified, Rowland provides there are several considerations that, when balanced by the court, may justify an exception to the general duty of reasonable care embodied in section 1714. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764.)  These “Rowland factors” include, as Cabral explained, all of the following: 

. . . [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id., p. 771.)

Cabral further explained that despite the landmark holding in Rowland, courts only balance these factors and consider whether or not a duty of due care is owed where there are clear “public policy reasons” for doing so because “in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where ‘clearly supported by public policy.’ [Citations.]” (Id., quoting Rowland, 69 Cal. 2d at 112.) 

Kuciemba grouped these Rowland factors into two categories, to wit, those that involved the foreseeability of harm and those involving public policy.  “Foreseeability” factors are forward-looking and the “public policy” factors are backward-looking. (Id., p. 30.)  The Supreme Court found the Rowland factors involving foreseeability indicated a duty of due care was owed to the plaintiff, but that this was not dispositive.  Rather, the factors related to public policy must also be considered, and these factors did not indicate a duty of due care was owed.  For example, consideration of “prevention of future harm” indicated no duty was owed: 

The next Rowland factor, the “policy of preventing future harm is ordinarily served, in tort law, by imposing the costs of negligent conduct upon those responsible.”  . . . This factor thus examines both the positive and the negative societal consequences of recognizing a tort duty. Public policy strongly favors compliance with health orders to prevent the spread of COVID-19. Recognizing a duty of care beyond the workplace could enhance employer vigilance in this regard. However, there is only so much an employer can do. Employers cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees. Employers have little to no control over the safety precautions taken by employees or their household members outside the workplace. Nor can they control whether a given employee will be aware of, or report, disease exposure. There is also a possibility that imposing a tort duty not covered by workers’ compensation could lead some employers to close down. . . . (Id., p. 38; citations omitted.) 

In summary, the economic and other consequences of imposing a duty upon employers to prevent COVID transmission from their employees to third parties indicated no such duty was owed.  As Justice Corrigan stated succinctly, such a duty could not be imposed because of the broad swatch of potential liability which would result:

. . . [A] duty to prevent secondary COVID-19 infections would extend to all workplaces, making every employer in California a potential defendant. (Id., p. 38; original emphasis.)

Why the discussion of public policy in Kuciemba is important

The Supreme Court opinion in Cabral has been interpreted by many courts something like this: as a general rule, everyone owes everyone else a duty of due care unless there is a crystal-clear public policy reason for not imposing a duty.  In particular, this approach has been used by many trial courts as an excuse to not consider public policy vis a vis the facts of the case even though such is required to rule upon a demurrer and or motion for summary judgment.

Trial courts therefore refuse to dismiss claims by way of demurrer or motion under the rubric the defendant broadly owes the plaintiff a duty of due care, no matter the tenuous nature of fatal causation.  Causation being a question of fact for the jury, the trial court does not conduct any detailed analysis of the facts of the case in terms of whether public policy indicates there should be liability, instead simply finding the case must proceed to a jury trial. 

As discussed in our prior post, one such example is Razoumovitch v. Hudson Ave. LLC (May 1, 2023) B316606.  The Second District, Division Seven held a tenant who accesses a roof area after being locked out of their apartment is owed a “duty of care” by their landlord to prevent injury from re-entering their apartment by attempting to “swing” up to roof ledge not designed to be accessed by tenants.  Razoumovitch concluded the general duty of due care applied because the defense had not shown there were clear public policy considerations that indicated otherwise.  Razoumovitch discussed the oft-cited proposition that someone is not owned a duty of due in regards to warning of an obvious defect.  But it also noted that this rule had a crucial exemption and does not apply where the injury is “foreseeable” because plaintiff has a “necessity” to encounter the harm, citing to Kinsman v. Unocal Corp. (2005) 37 Cal. 4th 659, at 673.

While it would be speculative to say whether or not Razoumovitch would have been decided differently had Kuciemba been decided first, there is considerable language in the latter opinion which may be cited to rebut the contention that every defendant owes a duty of due care to every plaintiff with no exception.  Specifically, the Supreme Court in Kuciemba made it plain the burden to society caused by imposing a duty of due care, and, in particular, imposing a duty under novel circumstances, is an important factor for courts to consider.

Defendants may therefore wish to cite to Kuciemba’s discussion as to the scope of the potential liability imposed, as the Supreme Court aptly noted that virtually every employer in the state would become a potential defendant if a duty were owed by employers to family members to prevent employee exposure to COVID.  

The court continued this analysis by noting the impracticability of imposing liability upon employers given they “cannot fully control the risk of infection because many precautions, such as mask wearing and social distancing, depend upon the compliance of individual employees.” (Id., p. 38.)  Moreover, even though imposing such liability night encourage employers to enact more stringent safety measure, it is also true that measures taken by employers to lessen their liability might impede the delivery of essential services. (Id., p. 43.)  

Courts deciding issues of duty in other contexts should be asked to undertake a detailed public policy analysis -- as part of their ruling upon a demurrer or motion for summary judgment -- with similar rigor rather than simply finding the defendant owes anyone and everywhere a duty of due care under Civil Code section 1714(a).  Where a trial court refuses to do so and the economics of the case warrant such, a writ petition, such as a Petition for Peremptory Writ made pursuant to Code of Civil Procedure section 437c(m)(1), may be filed arguing the trial court did not properly consider the issue of duty as it did not undertake the analysis required by Rowland, Cabral, and Kuciemba.

Who should argue before the Court of Appeal: the appellate or trial lawyer?

Should the lawyer with the most knowledge of the case or the one who has the most appellate experience appear before the Court of Appeal?

One of the questions most frequently asked of appellate practitioners is whether the trial lawyer or the appellate specialist should conduct the oral argument.  The answer might appear obvious —  the appellate attorney — but there are advantages and disadvantages to having either the trial attorney or appellate attorney at the lectern.  

In making this decision one should recall what oral argument entails.  Such an argument requires extensive preparation because it must not be a regurgitation or even a summary of the brief the panel of justices has already read.  Rather, such an argument should focus on the key argument — and, hopefully, the various issues briefed in writing may be distilled into an argument in the singular — upon which the decision should rest.   Preparation is also necessary to be able to quickly rebut arguments made by your opponent as well as to be able to decisively answer questions posted by the court. 

Notice of the argument may be sent out eight to 12 weeks prior to the actual date. [1]  This ordinarily occurs after the parties have given their estimate of how long the argument will take, with each party providing their own estimate.  While there is a maximum amount of time, often 30 or 45 minutes, which may be allotted, there is no “average” or “default” amount.  

That being said, 10, 15, or 20 minutes are common estimates.  Bear in mind that if one reserves time for any rebuttal to your opponent’s argument, these minutes are included in your total time estimate, meaning rebuttal time will reduce the amount of time you have during your initial argument.

It may not be possible to hire someone to conduct the argument

Looking at this from a practical view, there may be financial concerns involved, as a client who may wish to pay to have an appellate brief written may not be able to pay for the cost of having the appellate attorney travel to, and prepare for, an appellate argument.  

On the other hand, the trial lawyer may have a scheduling conflict which may make it impossible to prepare for the argument and/or travel to attend such.  The worst-case scenario occurs if a trial lawyer without sufficient appellate experience who has hired an appellate lawyer to brief the matter then plans to argue before the Court of Appeal but is prevented from actually preparing by an unexpected emergency that arises in another matter.

Ethical implications to consider in deciding who should argue the appeal

This brings us to ethical parameters which may inform the decision of trial counsel to seek assistance. California Rules of Professional Responsibility, rule 11, sets forth the minimum competency required in a particular matter, explaining that such competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”  A lawyer who does not meet or have the time to attain minimal competence may therefore meet this standard by referral to a lawyer who has.

Consider whether the presence of the trial lawyer will constrain the arguments which may be made before the appellate court

The cost of hiring an appellate lawyer to conduct the argument may be money well-spent for a number of reasons, some obvious and some less so.  As but one example, the appellate practitioner may be much better suited to making an argument including an admission about what occurred at trial, such as an admission the trial lawyer may have missed a deadline coupled with an argument that there was no real prejudice from this error.   While the trial lawyer could theoretically make the same admission, given human nature and the healthy ego many lawyers possess, it is less likely they will do so.

Perhaps the best approach is to have both trial and appellate counsel attend, with the appellate lawyer arguing the legal issues and trial counsel present but silent at the counsel table in front of the justices.  This gives the impression the trial lawyer takes the matter seriously enough to both hire appellate counsel and attend the hearing.

Further, while appellate counsel should be prepared to argue the case without any “prompts” from the trial lawyer, it remains the trial lawyer’s presence means it is possible — if the need arises — for the appellate lawyer to discreetly confirm a key fact from the trial lawyer. [2]

1 - Because most appellate courts do not request input from counsel as to available dates, the argument may be set on a date conflicting with your most ambitious trial to date, daughter’s wedding, surgery, etc.  A prompt call to the Clerk of the Court should inform you as to whether or not the Court of Appeal will entertain flexibility in scheduling the argument.   Being prepared with alternative dates which are feasible for all other counsel will smooth this process.

2 - One should not count on being able to interrupt the argument to confirm a key fact with trial counsel.  Still, I have observed appellate counsel who has been asked a very specific factual question as to what occurred at trial then politely ask the appellate panel whether they may briefly request confirmation from trial counsel sitting adjacent to the lectern.  One panel I observed answered in the affirmative and trial counsel was permitted to nod yes and confirm this fact to appellate counsel.

Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.

Sanctions May Be Imposed for Frivolous Appeal Intended to Delay (Champlin v. Avery)

 

Plaintiff is sanctioned $15,000 for filing an appeal with no merit in an attempt to delay the removal of a mechanic’s lien

The Second District, Division Six, has sanctioned counsel for appellant Avery and his counsel of record, Steven Slavitt, $15,000 for filing and maintaining a frivolous appeal designed for the purpose of delay. (Champlin/GEI Wind Holdings v. Avery (June 2, 2023) B319563.)  Plaintiff and respondent Champlin/GEI Wind Holdings (“respondent”) entered into an agreement to develop a wind energy project in Oahu.  Appellant and defendant Keith Avery (“appellant”) was to receive both a return on capital and a “monthly services fee:”

Appellant, acting through West Wind Works, LLC (3W). . . and respondent entered into a Development Services Agreement (DSA) to develop a wind energy project on Oahu, Hawaii. Pursuant to the DSA and related agreements, appellant had a 5 percent interest in Champlin Hawaii, an entity formed to jointly develop wind energy projects on Oahu. These agreements provided that all distributions from Champlin Hawaii would be made to respondent until respondent received a 15 percent internal rate of return on its invested capital. Then, appellant’s limited liability company, 3W, would participate in distributions. Appellant was paid a monthly services fee, starting at $2,000 per month, with a cap of $250,000. 

About two years after these agreements were made, appellant assigned his 5 percent interest in Champlin Hawaii to respondent. . .  The parties also amended the DSA. . . . [and] provided for a bonus to be paid to appellant after the project achieved its commercial operation date (COD) or was sold, and respondent achieved its 15 percent pre-tax internal rate of return. (Id., pp. 2-3.)

When the project was terminated, appellant maintained he was entitled to additional compensation and filed a mechanic’s lien in Hawaii:

Respondent terminated the DSA in March 2015, after appellant stopped working on project-related matters and the project missed many of its development milestone dates. . . .  In December 2018, respondent sold its interest to a third party. . . resulting in an actual internal rate of return of 8.60676 percent. 

In May 2020, appellant filed a mechanic’s lien in Hawaii, alleging he was entitled to additional compensation under the amended DSA. Respondent filed its complaint against appellant in California. It alleged that appellant breached the DSA by, among other things, failing to mediate before filing the mechanic’s lien and ignoring the DSA’s choice of law and forum selection provisions. Appellant’s cross-complaint alleges only that respondent breached the DSA when it “sold the project . . . without [appellant’s] knowledge or approval,” resulting “in the termination of [appellant’s] compensation . . . .” (Id., pp. 3-4; footnote omitted.)

Respondent brought a motion for summary judgment and/or summary adjudication upon its complaint and/or the cross-complaint.  Appellant, however, did not oppose the motion until the day before the hearing, failing to properly oppose the motion for summary judgment by filing opposing papers 14 days in advance providing admissible contrary evidence cited in a separate statement as to what facts were or were not disputed. (See, e.g., Code of Civil Procedure section 437c(b).)  

Appellant also acknowledged his cross-complaint did not reflect the legal theory upon which his claim was made and made a last-minute oral request to amend the complaint, which was denied.  The Hon. Thomas P. Anderle, of the Superior Court County of Santa Barbara therefore granted summary judgment in favor of respondent upon both the complaint and the cross-complaint.

The actions of appellant in the trial and appellate courts showed a lack of understanding of basic civil procedure

The appellate court affirmed all rulings of the trial court.  Moreover, it found the entire appeal to be without merit and noted the willful ignorance of the appellant and his counsel as to these merits warranted reiteration of the “duties of counsel” toward the court: 

. . .[W]e must opine on the duties of counsel as an officer of the court. We expect counsel to know and follow basic law relating to civil procedure. That did not happen here. We will impose sanctions for the filing of a frivolous appeal from a discretionary trial court ruling. We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal. We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago. [Citations.] We borrow the phrase from our previous opinion: This appeal “was ‘dead on arrival’ at the appellate courthouse.” [Citation.]  This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here. (Id., pp. 1-2.)

As Champlin pointed out, appellant did not make a formal request to amend or otherwise file a motion to amend the complaint.  Appellant thereafter filed a notice of appeal from both the denial of oral request to amend the cross-complaint and the order granting the motion for summary judgment, both of which are non-appealable orders and not final judgments.  Nonetheless, the appellate court utilized its discretion to treat the appeal as if it had been from an actual judgment following the granting of the motion, and therefore considered the merits of the appeal.

Which, of course, the appellate court found lacking.  In particular, the appellate court was critical of the failure of appellant to follow correct procedure in the trial and appellate courts.  This included appellant’s improper reliance upon “facts” which had not been established by citation to a separate statement supported by admissible evidence, such as appellant’s claims that he was entitled to additional monies under the amended DSA.  

Appellant also failed to appreciate the importance of the standard of review, to wit, the manner in which an appellate court looks at trial court rulings.  While an appellate court ordinarily utilized a “de novo” review whereby the appellate court looks at the evidence without deference to the trial court’s determinations, appellant’s failure to provide a proper opposition to the motion for summary judgment made this impossible:  

Trial counsel at the motion for summary judgment also represents appellant in this court. He ignores all of the traditional rules of appeal. He is correct that our review of a grant of summary judgment is de novo. That does not mean we consider counsel’s conclusion that there are issues of fact to be resolved at trial. These “facts” are not in the record, i.e., not in a separate statement of disputed facts or supported by declarations or other evidence. (Champlin, p. 11.)

The appellate court also noted appellant did not understand that the trial court’s ruling denying the motion to amend was left to the sound discretion of that court, meaning it would be disturbed absent an abuse of discretion:

He is also correct in saying that pleadings are to be liberally construed. That does not mean his oral motion to amend the cross-complaint should have been granted. This is a discretionary ruling. Again, counsel does not appreciate traditional rules on appeal. [Citation.]

The Second District therefore upheld the grant of summary judgment, finding appellant was not entitled to any additional monies beyond what he had already been paid.  Writing for a unanimous panel, Justice Yegan explained the appellate court’s finding there was no merit to any of appellant’s claims should “end” this matter and result in the removal of the mechanic’s lien filed in Hawaii.

Champlin is a stark lessen for practitioners who wish to avoid sanctions at the appellate level

One crucial lesson is that if counsel is not fluent in the procedural nooks and crannies of motion practice and has no experience in appellate procedure it is incumbent upon said counsel to seek assistance. (See California Rules of Professional Responsibility, rule 11, setting forth the minimum competency required in a particular matter and noting this competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”)

The appellate court in turn concluded the subject appeal was frivolous, and, even worse, was intended for the purpose of delay.  As Champlin aptly pointed out, despite a choice of law provision that disputes were to be decided in Santa Barbara county, appellant filed a mechanic’s lien in Hawaii.  Worse, the filing and maintenance of the appeal delayed the resolution of the mechanic’s lien, to the detriment of respondent.

Parties who intend to file an appeal where said filing extends the life of a lien or other encumbrance should consider whether this filing will later be viewed as a frivolous tactic designed for purposes of delay.  Counsel should also consider whether they have a good-faith basis to ignore a clearly-worded choice of law provision by making the deliberate choice to file in another jurisdiction.

Here, of course, the failure to consider the merits of the appeal resulted in appellant and counsel being ordered to pay respondent $10,000 and the Clerk of the Court $5,000. [1]  In summary, a 

trial lawyer may need the help of an attorney with particular expertise in 1) civil motion practice, and, 2) appellate procedure, including someone with sufficient experience to determine whether an appeal has sufficient merit to avoid a claim it is “frivolous.” [2]

1 - These sums were chosen to deter future conduct and to compensate for the harm caused by defending against the appeal and the mechanic’s lien.  However, respondent claimed these expenses were much greater than the $10,000 awarded, leaving open the question as to whether respondent may seek the remainder of its attorney fees in a California or Hawaii court.  This is because the opinion does not set forth whether, in addition to its mandatory arbitration and choice of law provisions, the amended DSA contained an attorney fee clause provision.  The opinion is also silent as to whether respondent’s complaint pled entitlement to attorney fees.

2- Such practitioners may include those certified by the California Bar as Certified Specialists in the area of Appellate law.