Cal Law Trends and Developments

Index

Wed, 03 Nov 2010 11:55:25 PDT

Table of Codes and Rules

Wed, 03 Nov 2010 11:55:24 PDT

Table of Cases

Wed, 03 Nov 2010 11:55:23 PDT

Selected Problems in the Administration of Criminal Justice

Alvin H. Goldstein Jr. — Wed, 03 Nov 2010 11:55:22 PDT

What follows is an effort to focus attention on certain problem areas in the day-to-day administration of justice. They are problems not so much because of their complexity, but rather because uncertainty persists despite considerable discussion of the rules governing each area. I have selected preliminary hearings, bail, appointment of counsel, sua sponte judicial dismissals, and reasonable doubt as appropriate topics for this chapter. There are, of course, numerous others entitled to treatment, but each of those selected relates to a subject over which the trial judge may exercise an extremely broad discretion. The exercise of this discretion may alter the course of a criminal proceeding, and once exercised, is often beyond the reach of an appellate court.

Welfare Law in California

Peter E. Sitkin — Wed, 03 Nov 2010 11:55:22 PDT

In California, over 1,500,000 people are dependent on public assistance for all or part of their means of subsistence. To provide aid to these individuals, a large and complex bureaucracy has developed over the years that expends more than a billion dollars a year, and is governed by an evergrowing set of federal, state, and local rules and regulations. Notwithstanding the size of the bureaucracy and the complexity of the laws governing the system, until recently there had been few instances of judicial review of welfare practices or laws. With a few exceptions,4 the court decisions relating to welfare prior to 1968 dealt with situations where conflicts between county and state welfare agencies were resolved, or where appeals were taken from convictions in welfare fraud prosecutions. It was unusual to have a recipient seek affirmative judicial redress on the grounds that welfare aid was illegally or unconstitutionally denied. Despite the substantial efforts of a few scholars - most notably Dr. Jacobus ten Broek - little serious discussion of the legal issues raised by the welfare system was undertaken.

Much of the welfare litigation in California in 1969 has been directed to the enforcement of existing law as well as to the challenge, on constitutional grounds, of welfare laws, regulations, and practices. Some of these court actions have resulted in increasing the cost of public assistance programs. For the most part, however, these added costs have resulted from judicially ordered compliance with existing law; the implication is that for years welfare administrators have been, and still are, illegally depriving thousands of persons of welfare aid to which they are legally entitled.

Juvenile Law

Kenneth Hecht — Wed, 03 Nov 2010 11:55:21 PDT

Review of the 1969 decisions in juvenile law reveals that the courts in California, as elsewhere, have been traumatized by the recent transplant of constitutional due process into the formerly barren soil of the juvenile code. For sixty years, children in most American jurisdictions were hidden from constitutional view. The fiction persisted that they were not tried but treated. If a child carne to the attention of the juvenile court, he did so because his parents had failed to fulfill their function. The court succeeded to their role and, in the name of parens patriae, exercised only the power it had thus derived to fashion an appropriate cure. Juvenile law was said to be noncriminal. The forum was viewed not so much as a court but as a social services laboratory, in which the specimen unfortunately might be required to languish until his majority rendered him judicially cognizable. As every lawyer knows, the United States Supreme Court has now finally discovered a place for juveniles within the Constitution. Kent v. United States and In Re Gault have found that a largely unfulfilled promise of corrective treatment does not justify the immunity of the juvenile process from constitutional scrutiny. In the following Court term, Tinker v. Des Moines Independent Community School District brought the Constitution through the schoolhouse door. Taken together, these three cases at least sketch the dimensions of the proposition that children, too, are citizens, entitled to fundamental constitutional rights and liberties. It is within this still-obscure outline that the courts are working. The present article, accordingly, traces the California response to Gault's imperative that the Constitution be applied to those who are under the age of twenty-one.

Labor Relations

Joseph R. Grodin — Wed, 03 Nov 2010 11:55:21 PDT

While primary responsibility for regulating labor relations affecting interstate commerce lies with the National Labor Relations Board, there are a number of significant areas in which state courts may exercise jurisdiction; during 1969, California courts had opportunity to determine a variety of issues raising fundamental conflicts of position: The State Supreme Court was called on to decide a case of classic tension between constitutional rights of free speech and private property and the Courts of Appeal passed on the issue of employees' basic right to organize, a claim of duress by an employer who contended he was "forced" to sign a collective bargaining agreement, and competing contentions with respect to the arbitrability of certain disputes. It was familiar territory for labor law, but some new guidelines were posted.

Insurance

Robert A. Seligson — Wed, 03 Nov 2010 11:55:20 PDT

Contracts

Claude D. Rowher — Wed, 03 Nov 2010 11:55:19 PDT

Recent decisions have brought about a number of changes in the area of contract interpretation. Although the general trends seem clear and commendable, the details are often obscure and bothersome.

Commercial Transactions and Consumer Protection

James R. McCall — Wed, 03 Nov 2010 11:55:19 PDT

Because the preceding edition of this publication did not contain an article on trends in commercial transactions or consumer protection in California, this article will discuss selected decisions and developments in those fields during the years 1968 and 1969. The principal focus of this article will be the significant decisions made during this period that interpret or relate to the principal statutes in the two fields: the California Commercial Code, the Rees-Levering Automobile Sales Finance Act, and the Unruh Retail Installment Sales Act. These legislative enactments establish a comprehensive statutory pattern for regulation of all aspects of commercial law in this state.

Secured Transactions - Real Property

Marshall Cornblum — Wed, 03 Nov 2010 11:55:18 PDT

As in most fields of the law, the law pertaining to real property security transactions is continually evolving. That evolving process is highlighted by the current trend of the California Supreme Court allowing the parties, at the inception of their transaction, to freely elect the true nature of the transaction and thereafter be bound by that election. At the inception of a security transaction, the true nature of that transaction is limited only by the imagination and relative bargaining positions of the parties. In determining this true nature, the court will look to substance rather than form. Once the true nature is established, the rights, duties, and obligations of the parties are determined by the applicable law.

Real Property

Roger Bernhardt — Wed, 03 Nov 2010 11:55:17 PDT

"Real property" as a topic exists only in a law professor's mind. Practicing attorneys may specialize in representing title companies or developers or brokers or any of the other entrepreneurs who make their living in one way or another from real estate, but none of these lawyers would claim that his proper field of expertise is real estate per se. Consequently, any article on developments in the field of real property law really becomes a series of separate articles on developments in some real estate specialties, rather than a cohesive whole. I have tried, here, to cover the three specialties which have undergone the greatest growth during 1969, and that may be of some interest to those who do not devote their entire time to these matters.

Trusts and Estates

James D. Hill — Wed, 03 Nov 2010 11:55:17 PDT

The most significant development in 1969 in the area of trusts and estates was the codification of the law regarding powers of appointment. Other legislation subjects irrevocable inter vivos trusts to the jurisdiction of the Superior Court. In the area of judicial developments, there were two cases of first impression. Estate of Pernas, dealt with the allocation as to principal or income of gains distributed from mutual funds. The other, Estate of Phillips, concerned the admission to probate of a will executed by a Californian who had been adjudicated an incompetent in Illinois prior to his coming to California.

Torts

Frederick J. Moreau — Wed, 03 Nov 2010 11:55:16 PDT

Community Property and Family Law: The Family Law Act of 1969

Aidan R. Gough — Wed, 03 Nov 2010 11:55:15 PDT

The year 1969 marked the decade's principal accomplishment in family law, the passage of the Family Law Act. The last several years have seen a sharply rising discontent with our traditional procedures for handling the dissolution of marriages, and numerous reform proposals have been advanced both in this country and abroad.

The Family Law Act brings some of these proposals to fruition; it marks the first legislative eradication of marital fault as the governing principle of divorce in any American jurisdiction. Because the passage of the new law virtually eclipses the past year's decisional developments in family law and community property, this article will attempt to focus on its highlights in summary form, not to provide an exhaustive catalogue of all its points, but rather to set out its structure and indicate some directions of future growth.

Administrative Law

Wiley W. Manuel — Wed, 03 Nov 2010 11:55:14 PDT

The year 1969 produced little in the way of legislation affecting administrative law, and the cases reviewing administrative action noted here are not necessarily included because they indicate anything new, but because they indicate someone did not understand what is old. The decisions of the Department of Motor Vehicles, in particular, have been the subject of most of the litigation during the past year. These cases present most clearly the struggle of the courts to evolve some unifying principles in the application of the law to the driver who drinks. Not all the cases are in harmony, but trends seem to be developing.

Workmen's Compensation

Jack E. Goshkin — Wed, 03 Nov 2010 11:55:14 PDT

The reviewing Courts in 1969, enjoyed an open season in reviewing Workmen's Compensation Appeals Board factual determinations, much in the manner reported in last year's article. The comments made by the legislature (and some members of the State Supreme Court) on the courts' hunting without a license have been to no avail.

The legislature, for all practical purposes, was inactive in the field of workmen's compensation. There were important developments in case law, but some of the cases that may well work important changes in the field of workmen's compensation law are presently in various stages of appeal.

Corporations

Harry C. Sigman — Wed, 03 Nov 2010 11:55:13 PDT

The major 1969 corporate law developments of particular interest to the California practitioner were: (1) California appellate decisions which, at least by implication, greatly broaden the scope of a controlling shareholder's duty to minority shareholders; (2) amendments to the California Corporations Code; and (3) amendments to the Delaware General Corporation Law.

Constitutional Law

James E. Leahy — Wed, 03 Nov 2010 11:55:12 PDT

This was a year in which the reviewing courts in California were confronted with contemporary problems of constitutional law.

Evidence

Joseph B. Harvey — Wed, 03 Nov 2010 11:55:12 PDT

The principal developments and trends to be noted in the law of evidence appeared this year in appellate Court decisions. The legislative changes were few. Only one legislative change seems likely to be of any significance and will be felt primarily by drivers accused of being under the influence of intoxicating liquor. For lawyers, the notable developments appear in the case law; it is likely that the courts will remain the primary arena for the development of the law of evidence for some time to come.