Written by Justice Eileen Moore*
California civil law.......................................................p.99
California criminal law..................................................p. 100
California family law...................................................p. 101
The Feres Doctrine and sexual assaults in the military.....................p. 101
Incarcerated veterans in HUBs in California prisons........................p. 102
The National Guard....................................................p. 103
New court form........................................................p. 104
Religious freedom in the United States military............................p. 104
30th Anniversary of the Vietnam Nurses' Statue..........................p. 105
Transgender lawsuit against the Secretary of Defense.....................p. 106
USERRA, the Uniformed Services Employment and Reemployment Rights Act ... p. 106 Veterans Justice Commission............................................p. 107
As of January 1, 2023, an action on behalf of or for the benefit of a veteran to redress unfair or deceptive acts or practices or unfair methods of competition may allow for increased damages An amendment to Civil Code § 3345 provides the increase may be as much as three times what would otherwise be awarded.
Before veterans were added as of January 1, 2023, Civil Code § 3345 protected only senior citizens and disabled persons There is some case authority analyzing § 3345 prior to the addition of its application to veterans.
In Clark v. Superior Court (2010) 50 Cal 4th 605, the plaintiffs were senior citizens who sued an insurance company under California's unfair
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competition law, Business & Professions Code § 17200 et seq., alleging deceptive business practices relating the purchase and sale of annuity contracts. The plaintiffs sought a monetary award, and contended that under Civil Code § 3345, they were entitled to a trebling of the award. In Clark, the California Supreme Court noted that the remedy in private actions brought under the unfair competition laws are generally limited to injunctions and restitution. The court concluded that because restitution is not a penalty, an award of restitution under the unfair competition law is not subject to § 3345's trebling provision.
However, the Clark plaintiffs did not suffer a complete loss. With regard to the defendants' contention that recovery under § 3345's trebling provision is limited to actions brought under the Consumer Legal Remedies Act, Civil Code § 1750 et seq., the Supreme Court rejected it in Clark The protections of Civil Code § 3345 are in play whenever a trier of fact is authorized to impose a penalty.
In Abbott Laboratories v. Superior Court (2020) 9 Cal.5th 642, a district attorney sued a drug manufacturer in the name of the People of the State of California, alleging violation of unfair competition laws because the drug company intentionally delayed the sale of a less expensive generic drug. The district attorney sought injunctive relief as well as trebled penalties for injuries to senior citizens and disabled persons under Civil Code § 3345. The California Supreme Court held that neither the civil penalties nor restitution were limited to the geographic boundaries of the district attorney's county.
Penal Code § 1170.91 is the statute that requires sentencing judges to consider post-traumatic stress disorder, traumatic brain injury, military sexual trauma, substance abuse issues and mental health issues resulting from service in the United States military as mitigating factors when sentencing a veteran. The statute also permits incarcerated veterans to return to court to ask for a lower sentence if the sentencing judge did not consider those conditions as mitigating factors during sentencing.
Prior to amendments to § 1170.91 that took effect on January 1, 2023, defendants who had stipulated to a sentence were ineligible for relief when they returned to court seeking a lower sentence. (see, People v. King (2020) 52 Cal.App.5th 783.)
Thus, when defendant Ronnie Keith Harrell, a convicted veteran who suffers from one of the statutory conditions, returned to court in 2020 requesting a lower sentence, his petition was denied because he had entered into a plea agreement. The Court of Appeal affirmed. (People v. Harrell (2021) EO76604 [unpub opn.].)
But in 2023, Harrell again returned to court asking for a lower sentence because the statute was amended. Once more, the trial court denied relief for the same reason This time around, the appellate court found the court erred, stating that § 1170.91 now has language permitting courts to reduce a conviction or a sentence "regardless of whether the original sentence was imposed after a trial or plea " (People v. Harrell (2023) 95 Cal.App.5th 161.)
Another change to § 1170.91 was the addition of subdivision (c) to the statute: "This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290." This statement of ineligibility of veterans convicted of super-strike offenses was challenged in People v. Sherman (2023) 91 Cal. App.5th 325. Sherman argued he was entitled to relief under the version of § 1170.91 that was in effect at the time of his trial court proceedings in 2020. The Court of Appeal held that subdivision (c) of § 1170.91 applies to cases pending when it became effective, finding Sherman categorically ineligible for relief.
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Family Code § 211.5 became effective January 1, 2024 The statute attempts to bridge a gap between veterans and resources Three important things should be kept in mind by family law courts and practitioners: 1) the legislative history of the statute provides important findings regarding veterans; 2) when the statute refers to the Department of Veterans Affairs, it is referring to the California agency, commonly known as CalVet. It is not referring to the federal agency, commonly known as the VA, because a state legislature cannot order a federal agency to do anything; and 3) the Judicial Council form to which the statute refers, MIL-100, is found on the Judicial Council's website at: https://www.courts.ca.gov/documents/mil100.pdf. The MIL-100 is presently being amended, so users should make sure the current version is used.
The legislative intent of Section 1 of Family Code § 211.5 states in relevant part that nearly one in five veterans lives with a service-connected mental health disorder or cognitive disorder; the rate of major depression among soldiers was five times as high as civilians and the rate of post-traumatic stress disorder was nearly 15 times higher than the general public; having a mental health disorder, including a service-linked disorder, does not inherently make one more violent; a mental health disorder should not be used as a sole predictor of future violence; service-linked mental health issues come with their own unique barriers, stigma, and complications; there are existing services for veterans who have a criminal case pending; many veterans who find themselves involved in family court proceedings do not have a criminal case and are unable to access many of the wrap-around services provided to veterans that do; veterans should not have to break the law to be connected to services designed to support them; individuals with mental health issues are fully capable of being loving and supportive parents; and, no parent should lose custody of their child due solely to a manageable mental health issue.
Section 2 of Family Code § 211.5 requires specific action on the part of family law courts and attorneys. That section states that in family law proceedings, a court "shall" provide self-identified veterans with a list of resources for veterans...
