Constitutional Law

When the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial, so the SEC must proceed in court, and not before its own administrative tribunals to recover civil penalties.  Securities fraud replicates common law fraud. The 7th Amendment applies to all actions, including statutory claims, not within equity or… Read More

In a Domestic Violence Restraining Order proceeding, the plaintiff wife was unrepresented by counsel; the defendant, her former husband had counsel. The trial court did not violate defendant's due process rights by assisting plaintiff during her testimony by asking her very broad, open-ended questions designed to allow her to tell the court about the incidents on which she based her… Read More

The CFPB's funding mechanism is constitutional.  Congress acts in accordance with the Appropriations Clause if it enacts a measure that identifies the source from which money may be drawn for a specified purpose.  Congress need not set the amount; it can allow the executive or agency draw on the authorized source up to a stated cap.  The appropriation also need… Read More

Government entities and actors are free to speak and do so forcefully on issues of public importance.  However, government actors may not use their governmental powers via veiled threats of adverse governmental action to coerce private parties to suppress speech that the government actors view unfavorably.  Here, the NRA alleged a viable claim for such coerced third party suppression of… Read More

Dodging the question whether the takings clause of the Fifth Amendment as applied to the states through the Fourteenth Amendment creates by its own force a cause of action authorizing suits for just compensation, the Supreme Court finds that the precondition for any such constitutional claim would be the absence of any other available remedy.  Since Texas state law and… Read More

Plaintiff chose to read aloud various Bible passages which he thought were anti-homosexual during and near gay pride parades.  The paraders and their sympathizers heckled plaintiff and then some began assaulting him.  For his own safety, the police told him to move away from the parade and arrested him when he refused to do so.    Held, the police violated plaintiff's… Read More

To pass 5th Amendment restraints on public taking of private property, a condition that a government entity imposes on a permit for development of private property must have an “essential nexus” to the government’s land-use interest and  have “rough proportionality” to the development’s impact on the land-use interest.  This decision holds that those tests apply to any condition imposed on… Read More

By removing plaintiff from its no-fly list, the FBI did not moot plaintiff's claim that the US had violated his due process rights by adding him to that list without notice or any means of redress.  The removal didn't prevent the FBI from adding plaintiff to the list once again later and equally without notice or redress, and the FBI… Read More

On remand from the Supreme Court, the Court of Appeal holds that substantial evidence supports USC's determination that plaintiff engaged in intimate partner violence warranting expulsion from the university.  The decision also holds that it is not a due process violation for a private association, such as a university, to follow the inquisitorial model (with a single person or body… Read More

California Rule of Court 3.1322 requires that a motion to strike be brought with a demurrer or within 30 days after service of complaint and requires a notice of a motion to strike "quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense."  This decision… Read More

The Eleventh Amendment bars a federal court from exercising jurisdiction over a claim against a California superior court, which is an arm of the state government or against the judges of that court, acting in their judicial capacity.  Ex parte Young,  209 U.S. 123 (1908) offers no end around the Eleventh Amendment immunity.  A court cannot be sued in an… Read More

A civil harassment injunction entered in favor of an attorney for one of a divorcing couple against the attorney for the other spouse was reversed.  Insofar as the injunction was based on emails that defendant sent plaintiff about the divorce, the emails didn't threaten violence and so were protected First Amendment speech which could not be considered in support of… Read More

A forum selection clause in defendant corporation's Delaware by-laws selecting the Delaware Chancery Court as the forum for any shareholder disputes was unenforceable in California state court because there is no right to a jury trial in Delaware Chancery Court so the forum selection clause operated as a pre-suit waiver of the constitutional right to a jury trial which cannot… Read More

Applying the test for conduct in furtherance of First Amendment activities stated in Filmon.com v. DoubleVerify, Inc. (2019) 7 Cal.5th 133, this decision holds that while the production of a TV program about rich Asian-Americans' adjustment to life in LA was an exercise of constitutionally protected expression, the wrongful conduct alleged in the complaint--denying the plaintiff a role in producing… Read More

The Judicial Council had constitutional authority to adopt Emergency Rule 9 extending statutes of limitation by six months due to the COVID-19 pandemic.  Governor Newson's executive order granting the Judicial Council authority to adopt that rule was itself authorized by Gov. Code 8571. Read More

A news organization sent UC Irvine a records request under the California Public Records Act for documents about a professor's postpublication communications about her articles which UCI had withdrawn from publication due to concerns about plagarism and accuracy of citations.  The professor filed this lawsuit to prevent UCI from producing documents in response to the request. Held, the suit arose… Read More

The trial court erred and denied defendant due process by sua sponte changing the plaintiff (from the HOA to its manager) and cause of action (from CCP 527.8 to 527.6) at the end of trial without prior notice.  On the other hand, the trial court also erred in holding that 527.8 (workplace violence prevention) did not apply when threats were… Read More

A private university must comply with the common law doctrine of fair procedure by providing accused students with notice of the charges and a meaningful opportunity to be heard, but the university is not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in… Read More

Oregon's wiretapping statute violates the First Amendment and is unenforceable.  It is a content-based regulation of speech since it excepts from its scope police recordings of conversations in which the policeman is a party and is performing official duties.  The law doesn't meet strict scrutiny because it is too broad, banning audio or visual recording on any conversation without consent--thus,… Read More

The First Amendment bars Colorado from applying its law banning discrimination in places of public accommodation to a person whose business is creating websites to celebrate and document the couple's wedding.  The website designer's collaborative effort with the couple to create a website that celebrates the story of their marriage is pure speech, not commercial speech, and it is speech… Read More