California Courts on Active Duty

• Publication year: 2015
• Author: By Justice Eileen C. Moore

California Courts on Active Duty

By Justice Eileen C. Moore

In many ways, we Americans have progressed in the way we treat our service members and veterans. During the Vietnam War, it was not uncommon for people to spit on soldiers as they walked through airports. One wonders what Vietnam vets are thinking when they see current veterans being applauded in the same setting. At least today's better treatment shows Americans have learned we can hate a war but still love our warriors.

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The United States has more than a million members of the military and almost 22 million veterans. About ten percent are from California. With contemporary favorable attitudes about our military, it is little wonder legal issues involving members of the service and veterans are appearing in all areas of our courts.

Both federal and state statutes set forth procedures specially directed to those who are presently serving and those who previously served our country. The reasons service members and veterans deserve this special consideration are too numerous to list here. Suffice it to say, they had our back. This article is intended merely as a primer on military and veteran issues to alert lawyers and judges about matters most of us do not usually think about.

Civil Law

A 2003 federal statute, the Servicemembers' Civil Relief Act (SCRA, 50 U.S.C. App. § 501 et seq.) was called the Soldiers' and Sailors' Civil Relief Act when first passed in 1940. The SCRA provides many protections for members of the military, National Guard, and Reservists. As examples, section 526 states the period of military service may not be included in computing "any period limited by law." Section 527 places limitations on the amount of interest that may be charged, and mandates restrictions on when a member of the armed services may be evicted. Section 531 provides protections in contract and repossession situations. Sections 532 and 533 place limitations on foreclosures and property seizures.

The idea behind the SCRA is to ensure that service members can focus on accomplishing their mission. It is hoped they will do their best when they know their families are not being evicted from their homes, their property isn't being repossessed, their stored goods aren't being sold, and court judgments won't be entered against them while they are serving their country. Justice William O. Douglas explained the original statute's purpose in Le Maistre v. Leffers (1948) 333 U.S. 1: "the Act must be read with an eye friendly to those who dropped their affairs to answer their country's call."

Some examples of cases applying the SCRA:

In Gordon v. Pete's Auto Services of Denbigh, Inc. (E.D.Va. 2012) 838 F.Supp.2d 436, the plaintiff was a member of the military who sought damages for the loss of his car. While deployed by the Navy, Gordon left his jeep in his apartment complex parking lot, and a representative of the complex requested the jeep be towed. Defendant, a towing company, sold the vehicle to itself at auction. Gordon sued the towing company under the SCRA and won his case, along with attorney fees.

Hurley v. Deutsche Bank Trust Co. Americas (6th Cir. 2010) 610 F.3d 334, involved a case brought by a member of the military service and his wife. Their action was against a lender for violating the SCRA by foreclosing on their home while he was serving in Iraq. The matter eventually settled following several years of litigation and summary judgment in favor of the plaintiff against the mortgage company.

The Hurley case may have been the driving force behind Congress's 2010 amendment to the SCRA, which now clearly provides for private rights of action in section 597(a). That section states any person aggrieved by a violation of the Act in a civil action may "recover all other appropriate relief, including monetary damages." It also provides for an award of costs and attorney fees.

It is unclear whether punitive damages are obtainable under the SCRA, but there have been hints that they might be available. First, sections 597 and 597a of the SCRA, both enacted as part of the 2010 amendment, do not limit other legal remedies. Second, in an earlier unreported Hurley v. Deutsche Bank decision, the federal trial judge denied defendants' motion to strike plaintiff's punitive damages claim. In that decision, the court stated punitive damages are available under the SCRA in appropriate cases. Third, in what is probably dictum in Gordon, as well as in several unreported cases, courts have noted that punitive damages are available under the SCRA. Lastly, in Brewster v. Sun Trust Mortgage, Inc. (9th Cir. 2014), 742 F.3d 876, 878 fn. 4, the Ninth Circuit asked for briefing on the issue, but ultimately did not decide it.

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The SCRA has been used against a service member as well. In First Tennessee Bank National Association v. Newham (Neb. 2015) 859 N.W.2d 569, Newham borrowed money and bought property in California in 2005 while he was in the Air Force. Years later, when he was out of the service, an action was brought against him on the promissory note, and he argued the statute of limitations. Citing section 526(a) of the SCRA, the Nebraska Supreme Court found the statute of limitations was tolled while he was in the service.

Another federal statute, the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA, 38 U.S.C. § 4501 et seq.) prohibits employment discrimination and is geared toward eliminating or minimizing the disadvantages to civilian careers and employment resulting from serving in the military. In Staub v. Proctor Hospital (2011) 131 S.Ct. 1186, the Supreme Court heard a case in which the supervisors of an Army Reservist were hostile to his military obligations. The plaintiff contended he was fired as a result of that hostility and brought an action under USERRA in which a jury awarded him $57,640 against the employer. The federal intermediate court reversed, finding instructional error because the jury was told a corporation can act only through its employees and the animus shown toward plaintiff due to his military obligations was not shown by the person who fired him. The high court said it was obvious the plaintiffs' supervisors acted within the scope of their employment when they took the alleged actions against the plaintiff, and the decision of the federal appeals court was reversed.

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In Paxton v. City of Montebello (C.D.Cal. 2010) 712 F.Supp.2d 1007, Army National Guard members sued for violation of USER-RA, claiming the city failed to employ them as police officers upon their return from active duty, with the same seniority and rate of pay, and by...