LAW OFFICES OF MICHAEL PAYMAN KADE

For the first time, inmates earned bachelor's degrees from the University of California system. Twenty-three inmates from the Richard J. Donovan Correctional Facility in San Diego received sociology degrees from UC Irvine, as part of a partnership with the state.

Supreme Court to Weigh Bans on Transgender Medical Treatments — The Wall Street Journal Justices agree to hear Biden administration’s challenge to Tennessee law banning gender-transition care for minors

CALONGE V. CITY OF SAN JOSE

Court of Appeals for the Ninth Circuit

Opinion Date: June 7, 2024

Rosalina Calonge sued Officer Edward Carboni and the City of San Jose under 42 U.S.C. § 1983, alleging that Officer Carboni used excessive deadly force when he shot and killed her son, Francis Calonge. The incident occurred when police officers responded to 911 calls reporting a man with a gun. They located Francis Calonge, who had what appeared to be a gun in his waistband. Officer Carboni shot and killed Calonge after following him for about a minute as he walked down a street.

The United States District Court for the Northern District of California granted summary judgment in favor of Officer Carboni, ruling that he was entitled to qualified immunity because the plaintiff had failed to identify specific caselaw clearly establishing that Officer Carboni’s conduct violated the Fourth Amendment.

The United States Court of Appeals for the Ninth Circuit reversed the district court's decision. The appellate court found that, construing the facts in the light most favorable to the plaintiff, a reasonable jury could decide that Officer Carboni violated Calonge’s Fourth Amendment right to be free from excessive force. The court also concluded that the relevant law was clearly established at the time, so Officer Carboni was not entitled to qualified immunity. The court resolved three disputed facts in the plaintiff’s favor for purposes of the appeal: Calonge was not drawing his gun or making a threatening gesture when Officer Carboni shot him; there were no bystanders in Calonge’s vicinity when he was shot; and officers did not instruct Calonge to get on the ground or otherwise stop. The court held that the totality of the circumstances did not justify deadly force.

P. v. Mayberry

California Courts of Appeal

June 4, 2024

The case revolves around the defendant, Darryn Mayberry, who was found ineligible for resentencing under Penal Code section 1172.75 by the trial court. Mayberry was initially charged with second-degree robbery and had previously suffered a juvenile adjudication and a serious felony conviction, both of which qualified as strike convictions under the Three Strikes law. He also served two separate prison terms. Mayberry pled nolo contendere to the robbery charge and admitted both strike priors and both prior prison term enhancements. The sentencing court struck one strike prior and imposed a doubled upper term of 10 years. The court also pronounced that it was exercising discretion and staying imposition of the two one-year prison priors, making the total term 10 years in the Department of Corrections.

The trial court reasoned that the original sentence was "illegal" due to the section 667.5, former subdivision (b) enhancements being imposed but stayed, the sentence was not appealed, and the court therefore did not have the "ability" to "go back in time and do anything about those illegal sentences." Mayberry appealed from that ruling.

The Court of Appeal of the State of California Fifth Appellate District disagreed with the trial court's interpretation of Penal Code section 1172.75. The appellate court concluded that section 1172.75 applies to prior prison term enhancements that have been imposed and stayed. The court reversed the trial court's decision and remanded the case for the trial court to recall Mayberry's sentence and resentence him in compliance with section 1172.75. The appellate court found that the trial court had erred in staying the two prior prison term enhancements, and that section 1172.75 statutorily conferred jurisdiction on the trial court to resentence Mayberry.

Southern California Edison Co. v. Superior Court
California Courts of Appeal
(Second Appellate District)

May 31, 2024

The case revolves around a dispute between Southern California Edison Company (SCE) and 21st Century Insurance Company and other insurance companies (plaintiffs). The plaintiffs, who paid policyholders for losses resulting from a fire known as the Creek Fire, sued SCE under a subrogation theory to recover their payments. They alleged that an arc from SCE's electric powerlines caused the fire. During discovery, SCE withheld certain documents, asserting they were generated during an attorney-led internal investigation into the cause of the fire and were protected by attorney-client privilege and the attorney work product doctrine. The plaintiffs moved to compel the production of these documents, arguing that SCE's primary reason for conducting the investigation was to comply with state law requiring it to publicly report any involvement it had in causing the fire. The trial court agreed with the plaintiffs and compelled the production of the documents.

The Court of Appeal concluded that the trial court's order improperly invaded the protection afforded by the attorney work product doctrine.

Even where the dominant purpose of an attorney-directed internal investigation is to comply with a client's public reporting requirement, attorney work product generated in connection with gathering facts to assist counsel in advising the client on how to comply with that statutory or regulatory reporting requirement remains protected.

Two felonies against my client with security clearance dismissed.
Nice running into my friend John Rogers

“The Court of Appeal found that the defendant's trial counsel did not exhibit racial bias.”

P. v. Coleman
Court: California Courts of Appeal

May 2, 2024

The case involves a defendant who was convicted of first-degree murder with special circumstances and an enhancement for personally and intentionally discharging a firearm causing great bodily injury or death.

The defendant appealed his conviction, arguing that his trial counsel exhibited racial bias towards him in violation of the California Racial Justice Act of 2020 (RJA) by advising him to use Ebonics and slang when he testified. He also contended that the trial court erred in imposing two sentence enhancements and a parole revocation restitution fine after sentencing him to life without the possibility of parole.

The Court of Appeal found that the defendant's trial counsel did not exhibit racial bias.

The court noted that the counsel's advice to the defendant to "speak how you speak" when testifying was a valid tactical decision aimed at ensuring the defendant appeared authentic and genuine before the jury.

The court also found that the defendant had not demonstrated by a preponderance of the evidence that his counsel's advice indicated racial animus or bias towards him. Therefore, the court concluded that there was no violation of the RJA.

San Antonio Regional Hospital v. Super. Ct.

California Courts of Appeal

E082481(Fourth Appellate District)

May 28, 2024

This case involves a wrongful death claim against San Antonio Regional Hospital, brought by Joseph Musharbash, following the death of his adult son, Michael, who was treated for a traumatic brain injury at the hospital. Musharbash alleges that the hospital provided inadequate care by failing to properly evaluate Michael's injuries and undertake appropriate courses of action. Specifically, he claims that surgical intervention was performed too late and that the nursing staff failed to adequately monitor Michael, inform his doctors of his status, and advocate for the need for earlier surgical intervention.

The hospital moved for summary judgment, arguing that Musharbash's only expert, Rhona Wang, a certified registered nurse anesthetist, lacked the requisite skill or experience to opine on the standard of care or causation elements of the claim. The trial court denied the hospital's motion for summary judgment, finding that Wang's declaration demonstrated triable issues about the standard of care and causation elements of Musharbash's claim. The hospital then petitioned for writ relief.

The Court of Appeal of the State of California, Fourth Appellate District, Division Two, granted the petition. The court found that Wang's qualifications did not establish that she had the specialized knowledge required to opine on the standard of care applicable to an intensive care unit neurosurgeon deciding whether a severe traumatic brain injury requires immediate surgical intervention, or whether that standard of care was breached. The court also found that Wang's declaration did not establish she was competent to opine on causation. As Wang was Musharbash's only proffered expert, her lack of competence to opine on the applicable standard of care and causation was fatal to his claim. The court directed the trial court to vacate its order denying the hospital's motion for summary judgment and to enter a new order granting the motion for summary judgment.

Lawyer, no longer attorney of record, can still be sanctioned for discovery abuse.

Counsel NO LONGER ATTORNEY OF RECORD CAN BE SANCTIONED FOR DISCOVERY ABUSE. CA Court of Appeal rules.

Michael P. Kade, Esq.
670 AM
TODAY 3:30 PM
TRUMP’s Presidency

The appellate court agreed that the regional center had a duty to protect A.L. from sexual assault by the transportation service's employees only if the regional center had actual knowledge of the employee's propensity to engage in such conduct.

A.L. v. Harbor Developmental Disabilities Foundation

California Courts of Appeal
(Second Appellate District)

Opinion Date: May 30, 2024

The case involves a developmentally disabled woman, referred to as A.L., who was sexually assaulted by an employee of a transportation service. The transportation service was contracted by Harbor Developmental Disabilities Foundation, a regional center under the Lanterman Developmental Disabilities Services Act. The regional center's role is to assess the needs of developmentally disabled individuals and contract with service providers to meet those needs. A.L. sued the employee, the transportation service, and the regional center, arguing that the regional center had a duty to protect her from sexual assault by the transportation service's employees.

The trial court granted summary judgment in favor of the regional center, concluding that the regional center did not have a duty to protect A.L. from sexual assault by the transportation service's employees unless the regional center had actual knowledge of the employee's propensity to engage in such conduct. The trial court's decision was based on the fact that the regional center had no such knowledge in this case.

On appeal, the Court of Appeal of the State of California Second Appellate District affirmed the trial court's decision. The appellate court agreed that the regional center had a duty to protect A.L. from sexual assault by the transportation service's employees only if the regional center had actual knowledge of the employee's propensity to engage in such conduct.

Girl went to a plastic surgeon and got an injection to increase the size of her ... Ended up in ICU and now cannot communicate.

Lorch v. Superior Court
(Fourth Appellate District)
Opinion Date: May 16, 2024

The case involves Leah Lorch, who filed a peremptory challenge against Judge Timothy B. Taylor, who was newly assigned to preside over her trial. Lorch's challenge was denied by Judge Taylor, who ruled that the challenge was untimely under the master calendar rule. This rule requires a party to file a challenge to the judge supervising the master calendar not later than the time the cause is assigned for trial. After the denial of the challenge, Judge Taylor proceeded with a two-day jury trial, which resulted in a defense verdict and judgment in favor of the defendant, Kia Motors America, Inc. Lorch then filed a petition within the statutory 10-day period, arguing that her challenge was timely because it was filed before the trial started.

The Court of Appeal, Fourth Appellate District Division One, held that Lorch's section 170.6 challenge was timely filed before the commencement of the trial and rejected Kia's laches argument. The court also concluded that the Superior Court of San Diego County's local rule, which purports to provide any superior court judge with the power to act as a master calendar department for purposes of assigning cases for trial, is inconsistent with section 170.6 and case law interpreting the statute. The court granted the petition with directions to vacate the void orders and judgment entered by Judge Taylor after denying the peremptory challenge.

Coinbase v. Suski
US Supreme Court

May 23, 2024

The case involves a dispute between Coinbase, Inc., a cryptocurrency exchange platform, and its users. The users had agreed to two contracts with Coinbase. The first contract, the User Agreement, contained an arbitration provision stating that an arbitrator must decide all disputes, including whether a disagreement is arbitrable. The second contract, the Official Rules for a promotional sweepstakes, contained a forum selection clause stating that California courts have sole jurisdiction over any controversies regarding the promotion. The users filed a class action in the U.S. District Court for the Northern District of California, alleging that the sweepstakes violated various California laws. Coinbase moved to compel arbitration based on the User Agreement’s arbitration provision. The District Court denied the motion, ruling that the Official Rules’ forum selection clause controlled the dispute. The Ninth Circuit affirmed this decision.

The Supreme Court of the United States affirmed the Ninth Circuit's decision. The Court held that when parties have agreed to two contracts—one sending arbitrability disputes to arbitration, and the other either explicitly or implicitly sending arbitrability disputes to the courts—a court must decide which contract governs.

Williams v. J-M Manufacturing Company
California Courts of Appeal
(First Appellate District)
May 22, 2024

This case involves a lawsuit filed by Cornelius Williams against J-M Manufacturing Company, Inc. (JMM), a supplier of asbestos-cement pipe. Williams alleged that he developed mesothelioma due to secondary exposure to asbestos from his brother Nathan's work with asbestos-cement pipe over a period of more than 20 years.

The jury found JMM liable under theories of design defect and failure to warn, concluding that the pipe sold by JMM was a substantial factor in increasing Williams' risk of developing cancer. JMM appealed the decision.

The Court of Appeal affirmed.

Happy Birthday to my dearest friend, the finest criminal trial lawyer Meghan Blanco It’s an honor to know you & work with you. 🎂

US Supreme Court Opinions
Smith v. Spizzirri
Docket: 22-1218
Opinion Date: May 16, 2024
Judge: Sonia Sotomayor
Areas of Law: Arbitration & Mediation, Labor & Employment Law
The case involves the interpretation of Section 3 of the Federal Arbitration Act (FAA), which outlines procedures for enforcing arbitration agreements in federal court. The petitioners, current and former delivery drivers for an on-demand delivery service operated by the respondents, filed a lawsuit alleging violations of federal and state employment laws. The respondents moved to compel arbitration and dismiss the suit. The petitioners agreed that their claims were arbitrable but argued that Section 3 of the FAA required the District Court to stay the action pending arbitration rather than dismissing it entirely. The District Court issued an order compelling arbitration and dismissed the case without prejudice. The Ninth Circuit affirmed the decision.

The Supreme Court held that when a district court finds that a lawsuit involves an arbitrable dispute and a party has requested a stay of the court proceeding pending arbitration, Section 3 of the FAA compels the court to issue a stay, and the court lacks discretion to dismiss the suit.

The area where Helm fell was a trail for purposes of section 831.4 & subject to Government immunity.

Helm v. City of Los Angeles
Docket: D083075(Fourth Appellate District)
Opinion Date: May 14, 2024

The plaintiff, Brady Helm, tripped and fell on a wire cable while walking to a recreational area at Diaz Lake. The wire cable was suspended between two wooden poles and was intended to prevent vehicles from accessing a pedestrian pathway.

The defendants prevailed on summary judgment in the Superior Court of Inyo County, arguing that Helm tripped while walking along a trail, and thus, they were immune under Government Code section 831.4 (trail immunity).

The Court of Appeal, Fourth Appellate District Division One State of California found that the area where Helm fell was a trail for purposes of section 831.4 and the wooden poles and wire cable were incorporated into the design of the trail. Therefore, the court affirmed the judgment.

https://www.harpersbazaar.com/uk/culture/culture-news/a41763360/nazanin-boniadi-womens-rights-iran/

Nazanin Boniadi on the "tyrannical" treatment of women in Iran, and how we can all be allies "I am outraged and angry and devastated that it's taken this degree of loss of life for the world to pay attention"