Headnotes: one-sentence summaries of this week’s below-the-fold cases

Tim Kowal July 3, 2024

This is the inaugural edition of Headnotes—cases I did not have time to write up, but seemed either important or irritating enough to mention anyway:

Arb Fees. Keeton v. Tesla, Inc. (D1d1 Jun. 26, 2024 No. A166690) (published), held the Cal. Arb. Act 30-day pay-arb-fees-or-forfeit provision CCP 1281.98 is not preempted by the FAA, making a clear split on the issue. See in Hernandez v. Sohnen Enters. (D2d5 May 22, 2024 No. B323303) [cert. for pub.], writeup here. Supreme Court granted review of the issue in *Hohenshelt v. Superior Court.* (Prediction: Hernandez is right, but Supreme Court will side with Keeton.)
Anti-Tax Initiative Killed as a “Revision.” In Legislature v. Weber (Jun. 20, 2024 No. S281977), the Cal. Supreme Court held that a far-reaching voter-initiative ban on taxes without voter approval was a structural change—and thus not an “amendment” but a “revision” that must be initiated by the legislature. It’s now struck from the ballot. (Hot Take: After looking at examples of what has counted as an “amendment” and what strays into “revision” territory, all the ones that have been upheld as amendments seem much narrower than this initiative that calls for all tax increases to be subject to voter approval.)
HOA Can’t Nix Religious Celebration. In Morris v. W. Hayden Estates First Addition Homeowners Ass'n, No. 19-35390 (9th Cir. June 17, 2024), a divided panel producing three opinions was led by Judge Berzon. The majority reversed JNOV and reinstated the jury verdict finding the HOA opposing a Christmas program was motivated in part by the owners’ religious expression. Dissenting, Judge Tashima thought the HOA was just worried about the scale of the program. Concurring and dissenting, Judge Nelson would have dealt even more harshly with the HOA. (Non-Legal Observation: Fences make good neighbors, but lawsuits don’t.)
Restraining order for being "seriously annoying" but not for being regular annoying. In Saenz v. Martinez (D4d2 Jul. 1, 2024 No. E081471) [nonpub. opn.], an attorney sought a restraining order against opposing counsel. Court agreed he was “annoying” but you can only get a restraining order for being “seriously annoying.” (Comment: The bar for restraining orders is low, but at least there are some limits.)

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.

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"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

"A judge is a law student who grades his own papers."

— H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.

— Leviticus

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

— Rubin v. Green (1993) 4 Cal.4th 1187

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

— Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

Headnotes: one-sentence summaries of this week’s below-the-fold cases

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"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality." — Will Durant

"A judge is a law student who grades his own papers." — H.L. Mencken

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly. — Leviticus

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else." — Hon. Sir Owen Dixon, Chief Justice of Australia

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor." — Rubin v. Green (1993) 4 Cal.4th 1187

"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind." — Sir Thomas More in Robert Bolt's A Man for All Seasons

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody." —T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws." — Plato (427-347 B.C.)