June 28, 2016

Historical Society previews its history of the Supreme Court book

The California Supreme Court Historical Society [disclosure:  I serve on the Society’s board] just published its spring/summer newsletter.  This newsletter is devoted entirely to a preview of the Society’s comprehensive history of the court — “Constitutional Governance and Judicial Power” — which is scheduled to be published next month.  The newsletter includes extended excerpts from each of the book’s seven chapters:CSCHS-2016-Newsletter-Spring-Summer_Page_01

Chapter one:
Pioneers on the Bench 1849–1879
Charles J. McClain

Chapter Two:
Creating a Court System 1880–1910
Gordon Morris Bakken

Chapter Three:
The Age of Reform 1910–1940
Lucy E. Salyer

Chapter Four:
The Gibson Era 1940–1964
Charles J. McClain

Chapter Five:
The Liberal Court:  Ascendency and Crisis 1964–1987
Harry N. Scheiber

Chapter Six:
The Lucas Years 1987–1996
Bob Egelko

Chapter Seven:
Defining a Branch, Finding the Center:  The George Court 1996–2010
Molly Selvin

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June 27, 2016

Supreme Court affirms one death sentence, reverses another

The Supreme Court today issues opinions in two direct death penalty appeals, reversing in one and affirming the other.  Both decisions are unanimous.

The reversal comes in People v. Becerra.  Possibly setting a brevity record for a death penalty case, the court’s 11-page opinion by Justice Carol Corrigan finds Faretta error, holding the trial court erroneously terminated the defendant’s right to self-representation.

People v. Clark is the opposite of Becerra, both in length and result.  The court’s 162-page opinion by Justice Mariano-Florentino Cuéllar affirms the death sentence, although it does reverse two of five special circumstance findings.

June 24, 2016

Temporary archive of May and June oral argument live streams

The Supreme Court today announced a temporary archive of the live-streamed oral arguments from the early-May, late-May, and June calendars.  The court reports over 7,000 live views of those arguments.

According to the announcement, a permanent archive will be established at the time of the court’s next calendar, in September.

June 24, 2016

Two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Becerra and People v. Clark, which were both argued on the April calendar.

Becerra is an automatic appeal from an October 1997 judgment of death.  Prior to oral argument, the court sent a focus letter stating it would concentrate primarily on the issue whether the trial court arbitrarily revoked the defendant’s self-representation in violation of the 6th and 14th amendments.

Clark is an automatic appeal from a December 1997 judgment of death.

Opinions in the other two undecided April calendar cases — People v. Sanchez (a Sixth Amendment right to confrontation case) and People v. Conley (a Three Strikes Reform Act case) — should be filing on Thursday, because that’s the last regular filing day before the 90-day deadline for decisions in those cases.

The Becerra and Clark opinions can be viewed Monday starting at 10:00 a.m.

June 23, 2016

Supreme Court limits component parts doctrine defense

In Ramos v. Brenntag Specialties, Inc., the Supreme Court today holds a foundry worker can continue with his lawsuit against companies that supplied products for use in the foundry’s manufacturing process, where participating in that process allegedly sickened the worker.  [Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]  The unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that the suppliers could not assert the component parts doctrine as a defense because the doctrine “does not apply when the product supplied has not been incorporated into a different finished or end product but instead, as here, itself allegedly causes injury when used in the manner intended by the product supplier.”

The court stresses, however, that, although the component parts doctrine is inapplicable to the case, the worker still has remaining obstacles to establishing liability.  The opinion expressly does “not address the applicability or scope of other products liability doctrines that may be implicated.”

The court affirms the Second District, Division Four, Court of Appeal, which had reversed an order sustaining the defendants’ demurrer.  It disapproves a 2012 decision by the Second District, Division Three.

June 23, 2016

Supreme Court affirms death sentence, with a concurring opinion about a Batson issue

The Supreme Court today unanimously affirms the death sentence in People v. Sánchez.  The death penalty was imposed for, among other things, the murder of a police officer.  As is typical of decisions in these automatic direct appeals, the court’s opinion — by Justice Ming Chin for himself and five others — rejects a host of arguments, although it does reverse the conviction on one of 26 robbery counts.

Justice Goodwin Liu writes a separate concurring opinion, about two issues he says “are ripe for reconsideration by this court” — the way to evaluate allegations based on Batson that the prosecution racially discriminated in jury selection and instructing the jury about the reliability of eyewitness identification evidence.  Justice Liu has expressed his differences about Batson issues before.

June 22, 2016

Products liability, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Sánchez, which was argued on the April calendar, and in Ramos v. Brenntag Specialties, Inc., which was argued on the early-May calendar.

Ramos will decide whether negligence and strict liability claims by an employee of a processing company against a supplier of raw materials for injuries allegedly suffered in the course of processing those materials are barred by the component parts doctrine.
[Disclosure:  Horvitz & Levy is counsel for one of the defendants and filed the merits briefs in which the other defendants joined.]

Sánchez is an automatic appeal from a March 1995 judgment of death.

Multiple opinion filing days are likely to continue next week.  After Ramos and Sánchez file tomorrow, there will still be four opinion-less cases from the April calendar, and next Monday and Thursday are the last regular filing days before the 90-day deadline for decisions in those cases.

The opinions can be viewed tomorrow starting at 10:00 a.m.

June 17, 2016

Summary of June 15, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 15, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Rubinstein v Doe 1, S234269—Review Granted—June 15, 2016

This case presents the following questions: (1) Does the delayed discovery rule in Code of Civil Procedure section 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made? (2) Does Government Code section 905, subdivision (m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009?

The Court of Appeal, Fourth District, Division One, held in a published decision, Rubinstein v. Doe 1 (2016) 245 Cal.App.4th 1037, that: (1) a delayed discovery rule applies to determine accrual of a cause of action against a public entity, (2) former student was not required to refile certificates of merit after the trial court granted her petition for relief from claims presentation requirements; (3) certificates were not required to be filed under penalty of perjury; (4) former student should have been granted leave to amend to include supporting facts in the certificates of merit; (5) former student should have been granted leave to amend to clarify allegations against fictitiously named individual defendants; and (6) erroneous service of complaint on public entity before obtaining in camera review of certificates of merit was not a proper ground for dismissal.

Dismissal in case presenting certified question of state law

Gradillas v. Lincoln General Insurance Company, S227632—Matter Dismissed—June 15, 2016

Pursuant to California Rules of Court, rule 8.548, the Supreme Court previously agreed to decide a question of California law certified by the U.S. Court of Appeals for the Ninth Circuit.  The Supreme Court had phrased the question presented as follows: “For purposes of coverage under an automobile insurance policy, what is the proper test for determining whether an injury arises out of the ‘use’ of a vehicle?”  This week, the Supreme Court dismissed the matter after the Ninth Circuit case was dismissed following a settlement.

A passenger who was sexually assaulted on an insured party bus brought action against the insurer of the party bus company, alleging the insurer breached its duty to defend and indemnify its insured.  In a published decision, Gradillas v. Lincoln Gen. Ins. Co. (9th Cir. 2015) 792 F.3d 1050, a three-judge panel of the Ninth Circuit issued an order certifying the following question of California law to the Supreme Court: “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”

Review Denied (with dissenting justices)

None.

Depublished

None.

June 16, 2016

No reduction of parole time for person resentenced under Prop. 47

In its first interpretation of an initiative enacted two years ago that converts certain felony offenses to misdemeanors, the Supreme Court today holds that a person resentenced under the new law cannot use credit for time served on a felony conviction to reduce a one-year parole required by the ballot measure.  The court’s unanimous opinion in People v. Morales, authored by Justice Ming Chin, concludes that the electorate who approved Prop. 47 “was informed, and it intended, that a person who benefitted from the new legislation by receiving a reduced sentence would be placed on parole for one year after completion of the reduced sentence, subject to the court’s discretion to release the person from that parole.”

The court reverses the Fourth District, Division Three, Court of Appeal.

June 16, 2016

Supreme Court reinstates conviction of former school official

In People v. Hubbard, the Supreme Court today reinstates the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The Court of Appeal had reversed the conviction (in an unpublished opinion) because it concluded the defendant did not come within the statutory definition of those who can be liable for misappropriation — “Each officer of this state, or of any county, city, town, or district of this state, and every other person charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”

The Supreme Court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes the statute doesn’t apply to all public officers, but only to those “charged with the receipt, safekeeping, transfer, or disbursement of public moneys.”  (There’s an extended discussion on this point, with lots of useful statutory construction tidbits.)  Unlike the Court of Appeal, however, the Supreme Court holds that the defendant was one of those “public officers imbued with such responsibility over public moneys.”  This was so because of the defendant’s “explicit contractual responsibilities to oversee the ‘budget and business affairs’ of the District, testimony that superintendents like [the defendant] owe a duty to safeguard school district funds, and [the defendant’s] responsibility to ensure such public funds were spent in accordance with the law.”

The court reverses the Second District, Division One, Court of Appeal.

June 15, 2016

Re-sentencing, misappropriation of public funds opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Hubbard, which was argued on the April calendar, and in People v. Morales, which was argued on the early-May calendar.

Hubbard involves the conviction — for misappropriation of public funds — of a former superintendent of the Beverly Hills Unified School District.  The case includes the issue:  Does Penal Code section 424 apply only to public officers who are charged with the receipt, safekeeping, transfer, or disbursement of public moneys, or does the statute apply to a public officer who authorizes the disbursement of public funds even if the actual authority to approve the disbursement lies elsewhere?

Morales, one of many cases on the Supreme Court’s docket raising Proposition 47 issues, will decide whether excess custody credits can be used to reduce or eliminate the one-year parole period required by Penal Code section 1170.18, subdivision (d), upon resentencing under Proposition 47.

The opinions can be viewed tomorrow starting at 10:00 a.m.

June 10, 2016

Summary of June 8, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, June 8, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

T.H. v. Novartis Pharmaceuticals Corp., S233898—Review Granted—June 8, 2016

The Court limited review to the following issue: May the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug be held liable for injuries caused years later by another manufacturer’s generic version of that drug?

Minors injured in utero through their mothers’ use of generic asthma medication brought action against the former manufacturer of a brand name medication and other drug companies, physicians, and hospital, alleging negligence, concealment, intentional misrepresentation, and negligent misrepresentation. The trial court sustained the former manufacturer’s demurrer without leave to amend, and the minors appealed.

Under the rationale of Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, the Court of Appeal, Fourth District, Division One, held in a published decision that the minors provided sufficient additional information on appeal to demonstrate they may amend their complaint to state a claim for negligent failure to warn and negligent misrepresentation based on acts or omissions by the former manufacturer before 2001, which allegedly caused or contributed to the minors’ injuries in 2007.  The Court rejected both the former manufacturer’s invitation to follow other states’ authorities (which have held a brand-name manufacturer cannot be liable for an injury caused by a product other than its own), and the contention that Conte is no longer viable after the Supreme Court decision in O’Neil v. Crane Co. (2012) 53 Cal.4th 335.  The court reversed and remanded with directions to enter a new order sustaining the demurrer with leave to amend the negligence and negligent misrepresentation causes of action.

Sweetwater Union School District v. Gilbane Building Company, S233526—Review Granted—June 8, 2016

This anti-SLAPP case presents the following issues: (1) Is testimony given in a criminal case by persons who are not parties in a subsequent civil action admissible in that action to oppose a special motion to strike? (2) Is such testimony subject to the conditions in Evidence Code section 1290 et seq. for receiving former testimony in evidence?

The Court of Appeal, Fourth District, Division One, held in a published decision that: (1) when considering anti-SLAPP motion, trial court is permitted to consider plea forms entered by individuals who were criminally prosecuted in connection with contracts ; (2) trial court was also permitted to consider grand jury exhibits and transcripts; (3) the plaintiff school district’s complaint arose from protected activity, thereby triggering the anti-SLAPP statute; (4) the defendant contractors did not concede the illegality of conduct alleged in complaint, and thus conduct did not lose protection of the anti-SLAPP statute on that basis; (5) evidence did not conclusively establish that the conduct at issue was illegal as a matter of law; but (6) the plaintiff district demonstrated a probability of prevailing against the defendant contractors, thereby defeating their anti-SLAPP motion.

Original Proceedings

Ayers v. Commission on Judicial Performance, S233333.  The petitioner in this case is Ventura County Superior Court Judge Nancy Ayers.  She challenged a decision by the Commission on Judicial Performance to issue an advisory letter—colloquially known as a “stinger” letter—to her for keeping a service dog she was training in her courtroom.  The Supreme Court issued an alternative writ of mandate directing the Commission to withdraw the advisory letter or to show cause why the relief sought in the petition should not be granted.

Review Denied (with dissenting justices)

None.

Depublished

None.

June 10, 2016

With Supreme Court’s permission, Legislature places new anti-Citizens United measure on the ballot

The Legislature approved placing a measure on the 2014 ballot that was to ask voters for their non-binding opinion whether the United States constitution should be amended to overturn the United States Supreme Court’s 2010 Citizens United decision.  The California Supreme Court removed the measure from that ballot so the court could decide whether the Legislature had the authority to use a ballot measure for that purpose.

Five months ago, the court held the Legislature’s 2014 measure was in fact proper, but it also ruled that new legislation was necessary to put an advisory question on the 2016 ballot.  The Legislature has now passed that legislation, which became law yesterday without Governor Jerry Brown’s signature.  (The Governor did the same thing with the 2014 legislation, stating that, although he disagreed with the Citizens United opinion, “we should not make it a habit to clutter our ballots with nonbinding measures as citizens rightfully assume that their votes are meant to have legal effect.”)

Not that it should matter to the validity of the Legislature’s action, but the question for the 2016 ballot is a bit broader than the one that the voters would have faced in 2014.  The 2014 version asked whether Congress should propose and the California Legislature ratify a constitutional amendment to overturn Citizens United.  In five months, however, the voters will weigh in on whether “California’s elected officials [should] use all of their constitutional authority, including, but not limited to, proposing and ratifying one or more amendments to the United States Constitution” to overturn Citizens United.  (Emphasis added.)  This would presumably encourage California’s Legislature not just to wait for Congress to propose a constitutional amendment, but also to affirmatively call for a constitutional convention to propose an amendment.

June 9, 2016

Court-awarded attorney fees properly considered when determining constitutionality of punitive damage judgment

When determining if a jury’s punitive damage verdict exceeds constitutional limits — including whether the ratio of punitive to compensatory damages is appropriate — a court may consider as part of the compensatory damages those attorney fees that are awarded as damages, even if the trial court rather than the jury decided the amount of fees to award.  That is the Supreme Court’s holding today in Nickerson v. Stonebridge Life Insurance Company.  The unanimous opinion by Justice Leondra Kruger concludes that an examination of the punitive-to-compensatory-damages ratio is part of a process “designed to govern postverdict judicial review of the amount of a jury’s award, not the adequacy of the jury’s deliberative process,” and, thus, “there is no apparent reason why a court . . . may not consider a postverdict compensatory damages award in its constitutional calculus.”

A fuller analysis of Nickerson will be available on Horvitz & Levy’s other blog, California Punitive Damages — An Exemplary Blog.

The Supreme Court reverses the Second District, Division Three, Court of Appeal.  It also disapproves a 2010 opinion by the Second District, Division Two.

June 8, 2016

Insurance bad faith punitive damage opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Nickerson v. Stonebridge Life Insurance Company, which was argued on the April calendar.  The court limited the issue in the case to whether an award of attorney fees under Brandt v. Superior Court (1985) 37 Cal.3d 813 is properly included as compensatory damages where the fees are awarded by the jury, but excluded from compensatory damages when they are awarded by the trial court after the jury has rendered its verdict.

The opinion can be viewed tomorrow starting at 10:00 a.m.

June 6, 2016

Supreme Court clears path for Governor’s criminal justice initiative

Construing a two-year old change to the initiative qualification process, the Supreme Court today overturns a superior court order that would have prevented an initiative sponsored by Governor Jerry Brown from appearing on this November’s ballot.  In Brown v. Superior Court, the court’s 6-1 opinion by Justice Carol Corrigan holds that the Governor and others properly utilized a new procedure allowing proponents to amend a proposed initiative during a public review period and before the initiative is circulated for signatures.  If it has enough signatures and if the voters approve it, the initiative — as amended — will change the law regarding parole reviews and the transferring of minors to adult criminal court.

Under the new initiative process law, any amendment to a proposed initiative must be “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”  The superior court — on the writ petition of the California District Attorneys Association — ruled the Governor’s amendments were not “reasonably germane.”  The Supreme Court disagrees, even while acknowledging that the changes “were, in certain respects, quite extensive.”

The court concludes that “[t]he proponents of an initiative measure are captains of the ship when it comes to deciding which provisions to take on board” and that “the Legislature has granted them substantial leeway to make amendments before the measure is presented to the public for signatures.  The statute permits even sweeping changes, so long as they are reasonably germane to the theme, purpose, or subject of the original proposal.”

Justice Ming Chin dissents.  He says the case is about whether the new initiative process “can function as a true reform to achieve its intended purpose, or if it is an empty shell — just another rule that can easily be evaded with a little imagination.”  Justice Chin sees it as the latter.  Under the majority’s approach, he believes, “future initiative proponents can evade the period of public review . . . [by] merely . . . hijack[ing] a vaguely similar measure that was in the process of qualifying.”

June 3, 2016

No conference held the week of May 30, 2016

The Court held no conference this week because it heard oral argument in Los Angeles. Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

June 3, 2016

Supreme Court to rule Monday on Governor’s criminal justice initiative

On Monday morning, the Supreme Court will file its opinion in Brown v. Superior Court, which was argued — with just six days’ notice — on the early-May calendar.

Brown is a high-profile case.  It concerns whether Governor Jerry Brown’s criminal justice initiative is eligible to qualify for the November ballot, and was called by the Los Angeles Times one that “carries high stakes for the state’s criminal justice system and Gov. Jerry Brown’s political legacy.”

The initiative is now pending signature verification by the Secretary of State.  However, even if there are enough valid signatures, the measure will not go to the voters if the Supreme Court affirms a superior court ruling that the initiative was improperly amended under recent legislation changing the initiative qualification procedure.

The opinion can be viewed Monday starting at 10:00 a.m.

June 2, 2016

Supreme Court reverses conviction for carrying open Swiss Army knife

In People v. Castillolopez, the Supreme Court today holds a defendant cannot be convicted of carrying a concealed “dirk or dagger” for having in his pocket a Swiss Army knife with one of the blades fully extended.  The applicable statute defines “dirk or dagger” as including a knife “that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death” and provides that “a pocketknife is capable of ready use as a stabbing weapon that may inflict great bodily injury or death only if the blade of the knife is exposed and locked into position.”

The unanimous opinion by Justice Leondra Kruger concludes, “Although a blade might be held open in a particular position by means of friction, a blade that can be closed simply by applying pressure to the back of the blade . . . is not ‘locked into position’ as the term is ordinarily understood.”  Justice Kruger writes, “the essential difference between a nonlocking folding knife and a locking folding knife has been understood to be whether the exposed knife blade[ ] is immobile, thereby preventing accidental collapse while the knife is in use.”

The Supreme Court affirms the Fourth District, Division One, Court of Appeal.

June 1, 2016

Published Court of Appeal opinions will no longer be automatically depublished by the grant of Supreme Court review

The Supreme Court today announced adoption of rule changes that will end the automatic depublication of published Court of Appeal opinions when the Supreme Court grants review.  The changes, which were subject to extended comment and consideration periods, take effect on July 1.

The current, soon-to-be-replaced system provides that a published Court of Appeal opinion is depublished — and thus no longer citeable — when the Supreme Court grants review in the case, but allows the court to order the opinion published again at any time after review is granted.

Under the new rule, a published Court of Appeal opinion will remain published pending review unless the Supreme Court affirmatively orders the opinion depublished.  Because it is published, the opinion will be citeable while the Supreme Court decides whether it was correct or not.  But the new rule also specifically addresses the precedential effect of the opinion.

The Supreme Court opted for the so-called “Alternative B” regarding precedential effect.  Thus, while the case is on review, unless the Supreme Court orders otherwise, a published Court of Appeal opinion will have “no binding or precedential effect, and may be cited for potentially persuasive value only.”  That means superior courts throughout the state can, but will not be required to, follow the law stated in the opinion.

Alternative B was the better choice.  Under the other alternative — having the opinion remain binding precedent pending review — if the Supreme Court ends up reversing the Court of Appeal, superior courts would be making flawed rulings in the interim under the compulsion of the still-published (and binding) Court of Appeal opinion.

Of course, Alternative B can cause problems if the opinion under review creates a conflict with an earlier, unreviewed published opinion and the Supreme Court ultimately decides to disapprove the earlier case law.  In that situation, the superior courts will have necessarily been following the law stated in the opinion that is later disapproved.  As the new rule’s comment states, “when a decision that is pending review conflicts with another published Court of Appeal decision that is not under review, only that other published decision will continue to have binding or precedential effect on the superior court.”

The rule will further provide that, once the Supreme Court issues its decision, and unless the court orders otherwise, the Court of Appeal opinion again becomes “citable and has binding or precedential effect,” but only “to the extent it is [not] inconsistent with the decision of the Supreme Court or is disapproved by that court.”  This will revive the Court of Appeal opinion’s impact on those issues it decided that were not reviewed by the Supreme Court.

The new rule also requires that, when citing an opinion pending review, the citation “note the grant of review and any subsequent action by the Supreme Court.”

June 1, 2016

Successful livestreaming continues in audio only for today’s and tomorrow’s Los Angeles arguments

The livestreaming of all Supreme Court oral arguments, which started last month, continues today with the June calendar, beginning in just a few hours.  However, although you could watch the early-May and late-May calendars held in San Francisco, the June arguments in Los Angeles will be audio only.

The May livestreaming was excellent.  The video had real-time captioning below it, and next to it on the screen was the court’s calendar and links to the argued cases’ docket and briefs.  The video itself was good quality, with multiple cameras used to switch between views of the attorneys, the court as a whole, and individual justices when asking questions.  The only quibble is that the justices’ voices sometimes came through a bit softer than the attorneys’.

June 1, 2016

Concealed pocketknife opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Castillolopez, which was argued on the April calendar.

The issue in Castillolopez is whether defendant’s possession of a concealed and opened pocketknife with the blade in its fully extended position was sufficient to sustain his conviction for carrying a concealed dirk or dagger in violation of Penal Code section 21310.  The case attracted amicus briefs from the Knife Rights Foundation, the America Knife & Tool Institute, and the Second Amendment Foundation.

The opinion can be viewed tomorrow starting at 10:00 a.m.

May 29, 2016

Summary of May 25, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 25, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Bianka M. v. Superior Court, S233757—Review Granted—May 25, 2016

The petitioner is a teenage girl from Honduras who entered the United States without documentation in 2013.  She was briefly detained by federal immigration authorities, then resettled in Los Angeles where she now lives with her mother.  The petitioner’s mother and biological father never married.  He resides in Honduras. The question presented is whether the trial court erred in denying the juvenile petitioner’s request for an order making findings concerning Special Immigrant Juvenile status (8 U.S.C. § 1101(a)(27)(J); see Code Civ. Proc., § 155) and placing her in her mother’s sole legal and physical custody.

The Second District Court of Appeal, Division Three, held in a published decision, Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406, that (1) as a matter of first impression, abandonment, as used under the Special Immigrant Juvenile statute (SIJ), means leaving a child without provision for reasonable and necessary care or supervision;(2) as a matter of first impression, SIJ findings are to be made after or in connection with a judicial custody determination after a full and fair evidentiary hearing; (3) as a matter of first impression, a parentage action is not a bona fide custody proceeding, as required for the trial court to make SIJ findings; (4) the trial court did not abuse its discretion by requiring the father’s joinder; (5) the trial court did not abuse its discretion by considering due process in making joinder decision; (6) the fact that trial court had subject matter jurisdiction over the child custody proceeding did not indicate that court necessarily had authority to issue a custody order; and (7) the juvenile was required to provide her father with notice of the specific SIJ findings she sought.

Review Denied (with dissenting justices)

None.

Depublished

None.

May 26, 2016

Supreme Court follows Legislature’s lead, grants habeas relief it had previously denied

In In re Richards, the Supreme Court today grants habeas corpus relief to, and vacates the murder conviction of, a defendant whose habeas corpus petition a 4-3 court rejected four years ago.  The unanimous opinion by Chief Justice Tani Cantil-Sakauye states that the reason for the opposite result now is the intervening action of the Legislature in amending a statute to overrule the court’s first decision.  The opinion recognizes “it is apparent that the Legislature agreed with the dissent’s conclusion in” the court’s first Richards opinion.

The court originally held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  (In re Richards (2012) 55 Cal.4th 948.)  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.  Two years later, the Legislature changed the definition of “false evidence” to “include opinions of experts that have either been repudiated by the expert who originally provided the opinion at a hearing or trial or that have been undermined by later scientific research or technological advances.”

Justice Goodwin Liu writes a concurring opinion and Justice Carol Corrigan writes a separate concurring opinion to critique Justice Liu’s opinion.  Justice Liu states that, in evaluating the importance of the bite-mark testimony, “it is also relevant that two previous juries were unable to reach a verdict without this evidence.”  Justice Corrigan responds that “it is very difficult to read any significance into the fact that two other juries hung in this case.  Juries fail to agree for a variety of reasons and the rules of evidence prohibit inquiry into the jurors’ subjective reasoning process.”

The court reverses the Fourth District, Division Two, Court of Appeal, which had reversed the superior court’s grant of habeas corpus relief.  In the first Richards opinion, of course, the Supreme Court affirmed the Court of Appeal.

May 26, 2016

Murder committed by juvenile cannot be automatically punished by functional equivalent of life without parole; additional sentencing hearing established

In People v. Franklin, the Supreme Court affirms a sentence of 25 years to life for murder committed by a juvenile.  In the process, however, the court extends a constitutional protection for certain defendants convicted of crimes committed when they were minors and establishes a new right to a sentencing hearing even when a particular constitutionally appropriate sentence is mandatory.

Based on U.S. Supreme Court precedent that precludes automatic life-without-parole sentences for juvenile crimes, the state high court held four years ago that the constitution also proscribes mandatory sentences for nonhomicide offenses that are the “functional equivalent” of life without parole, like the 110-years-to-life term imposed in the case that was before it.  Today, in a 6-1 opinion authored by Justice Goodwin Liu, the court holds that the “functional equivalent” rule applies to homicide offenses as well.

The Franklin defendant’s original mandatory sentence made him ineligible for parole for 50 years, but the court doesn’t analyze that sentence under the “functional equivalent” test because intervening legislation reduced his parole eligibility to 25 years.  The court does conclude, however, that delaying parole eligibility for 25 years, when the defendant is 41 years old, is not functionally equivalent to life without parole.  It does so even though the defendant did not argue to the contrary.

Besides having his sentence reduced according to the new legislation, the defendant receives some additional relief.  The legislation provides that the Board of Parole Hearings “shall give great weight to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity.”  The court remands the case to the trial court “for a determination of whether Franklin was afforded sufficient opportunity to make a record of information relevant to his eventual youth offender parole hearing.”

Justice Kathryn Werdegar writes a concurring and dissenting opinion, disagreeing with the majority’s remand decision.  She objects to imposing “a new, judicially created, extra statutory procedure entitling [youthful] offenders to a type of penalty phase trial, replete with opposing experts and family members and friends, subject to cross-examination, testifying to the offender’s youthful immaturity.”

The court mostly affirms a decision by the First District, Division Three, Court of Appeal.  (The Court of Appeal had affirmed the legislatively reduced 25-years-to-life sentence, but did not afford the possibility of an additional hearing to make a better record for a future parole hearing.)

May 26, 2016

Supreme Court affirms death sentence, upholding use of prior juvenile murder conviction to support special circumstance

The Supreme Court today affirms the death sentence in People v. Salazar.  In a unanimous opinion by Justice Carol Corrigan, the court holds that a conviction for a prior murder committed when the defendant was a minor can support a special circumstance finding, which is a prerequisite to eligibility for the death penalty.  Among other arguments, the defendant claimed that using the prior conviction for that purpose violates the constitutional bar against imposing the death penalty for crimes committed by juveniles.  The court concludes, however, that “[t]he punishment is not imposed for the juvenile offense, but for the crime committed as an adult, considered in light of the defendant’s criminal history.”

Justice Mariano-Florentino Cuéllar signs the court’s opinion, but also writes separately to explain why he believes it is a difficult question whether a prior juvenile murder conviction can make a defendant eligible for the death penalty.

May 25, 2016

What was the question again?

The Ninth Circuit has been waiting for the California Supreme Court’s help in determining a question of state habeas corpus procedure for a long time.  A really long time.  Today, there is some light at the end of the tunnel.

In 2008, the federal appeals court asked the Supreme Court how to determine the timeliness of a state habeas petition (Chaffer v. Prosper (9th Cir. 2008) 542 F.3d 662), but the Supreme Court turned down the request.  Ten months ago, in Robinson v. Lewis, the Ninth Circuit asked again, telling the state high court, we know you’re busy, but “we remain uncertain about the scope of California’s rule” and getting an answer is very important.

The Supreme Court did agree to answer the Ninth Circuit’s question in Robinson, but accepting the question took an unusually long time.  Then, two days later, the court put the case on hold, deferring all briefing until it decides whether to restate the Ninth Circuit’s question.  (Cal. Rules of Court, rule 8.548(f)(5).)  That was over six months ago, and the Supreme Court has taken no action since.  Until today, that is.

Today, the court restates the question and restarts the briefing schedule.  The newly restated question that will be briefed is:  “When a California court denies a claim in a petition for writ of habeas corpus, and the petitioner subsequently files the same or a similar claim in a petition for writ of habeas corpus directed to the original jurisdiction of a higher court, what is the significance, if any, of the period of time between the earlier petition’s denial and the subsequent petition’s filing (66 days in this case) for the purpose of determining the subsequent claim’s timeliness under California law?”

May 25, 2016

Child imprisonment, false evidence, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in People v. Franklin and People v. Salazar, the last undecided cases from the March calendar.  It will also file an opinion in In re Richards, which was argued on the early-May calendar just three weeks ago.  Franklin and Richards will likely garner much attention.

Franklin involves the constitutional limits on the length of sentences for crimes committed by minors, an issue in a number of cases on the Supreme Court’s docket.  It’s also an issue addressed frequently by the U.S. Supreme Court, most recently four months ago in Montgomery v. Louisiana.

Franklin is an un-hold case.  Briefing was originally deferred pending resolution of two cases —  In re Alatriste and In re Bonilla — raising these issues:  (1) Did Senate Bill 260 (Reg. Sess. 2013-2014), which includes provisions for a parole suitability hearing after a maximum of 25 years for most juvenile offenders serving life sentences, render moot any claim that such a sentence violates the Eighth Amendment to the federal Constitution and that the petitioner is entitled to a new sentencing hearing applying the mitigating factors for such juvenile offenders set forth in Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455]?  If not:  (2) Does Miller apply retroactively on habeas corpus to a prisoner who was a juvenile at the time of the commitment offense and who is presently serving a sentence that is the functional equivalent of life without the possibility of parole?  (3) Is a total term of imprisonment of 77 years to life (Alatriste) or 50 years to life (Bonilla) for murder committed by a 16-year-old offender the functional equivalent of life without possibility of parole by denying the offender a meaningful opportunity for release on parole?  (4) If so, does the sentence violate the Eighth Amendment absent consideration of the mitigating factors for juvenile offenders set forth in Miller?

When the court un-held Franklin, it ordered briefing in the case to include these issues:  (1) Did defendant’s sentence of 50 years to life for a homicide committed when he was a juvenile violate the Eighth Amendment?  (2) Was the first issue rendered moot by the enactment of Penal Code section 3051?

Richards is noteworthy because it is before the court for a second time, following the Legislature’s overruling of the court’s first decision.  Four years ago, a 4-3 opinion held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  (In re Richards (2012) 55 Cal.4th 948.)  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.  After the legislative action, the defendant filed another habeas corpus petition, this time directly in the Supreme Court, and the court issued an order to show cause why relief should not be granted on the ground that petitioner was convicted on the basis of false evidence as defined in Penal Code section 1473, subdivision (e).

Salazar is an automatic appeal from a March 1999 judgment of death.

All three opinions can be viewed tomorrow starting at 10:00 a.m.

May 23, 2016

Supreme Court addresses sophisticated intermediary doctrine in products liability cases

In Webb v. Special Electric Company, Inc., the Supreme Court today discusses the duty — to someone injured by hazardous material in a product — of a company that supplies the hazardous raw material to the product manufacturer.  In a 5-2 opinion by Justice Carol Corrigan, the court concludes that the supplier can be relieved of a duty to warn under the sophisticated intermediary doctrine, but only if the supplier “show[s] not only that it warned or sold to a knowledgeable intermediary, but also that it actually and reasonably relied on the intermediary to convey warnings to end users.”

The court disapproves a 2010 opinion by the Second District, Division Five, Court of Appeal, which had concluded the sophisticated intermediary defense applied only when the manufacturer warns the intermediary.  The Supreme Court states, “Although in most cases a warning to the intermediary will be necessary, warnings are not required if the intermediary was so sophisticated that it actually knew or reasonably should have known about the potential harm.”

A concurring and dissenting opinion by Chief Justice Tani Cantil-Sakauye — joined by Justice Ming Chin — would restrict the sophisticated intermediary defense further than the majority.  She believes that the defense should not apply when the supplier “knows only that the intermediary ‘should be’ rather than ‘is actually’ aware of the dangers.”

The Supreme Court affirms the Second District, Division One, Court of Appeal.

[Disclosure:  Horvitz & Levy is counsel for defendant Special Electric.]

May 23, 2016

Supreme Court overturns modification of convictions to lesser included offense

In People v. Robinson, there was insufficient evidence to support convictions of sexual battery by fraudulent misrepresentations that touchings served a professional purpose; the evidence was inadequate that two victims had consented to the touchings because of the defendant’s representations.  The Court of Appeal — concluding that misdemeanor sexual battery was a lesser included offense — converted the convictions to convictions of the lesser crime.  Today, in a unanimous opinion by Justice Carol Corrigan, the Supreme Court holds that was error because the jury did not consider whether the victims’ consent was negated by means other than misrepresentations.

The Supreme Court reverses the Fourth District, Division Three, Court of Appeal.  It also disagrees with some reasoning — but not the result — in a 2009 Second District, Division Four, Court of Appeal opinion, an opinion with which the Robinson Court of Appeal had disagreed.

May 20, 2016

Asbestos, sexual battery opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Webb v. Special Electric Company, Inc. [disclosure:  Horvitz & Levy is counsel for Special Electric] and People v. Robinson, which were both argued on the March calendar.

After Webb and Robinson, there will be two opinion-less cases left from the March calendar.  Decisions in those cases — People v. Franklin and People v. Salazar — should file Thursday.

In Webb, the court is expected to answer these questions:  (1) Should a defendant that supplied raw asbestos to a manufacturer of products be found liable to the plaintiffs on a failure to warn theory?  (2) Was the trial court’s decision to treat defendant’s pre-trial motions for nonsuit and for a directed verdict as a post-trial motion for judgment notwithstanding the verdict procedurally improper, and if so, was it sufficiently prejudicial to warrant reversal?

Robinson raises the issue whether misdemeanor sexual battery (Pen. Code, § 243.4, subd. (e)(1)) is a lesser included offense of sexual battery by fraudulent representation (Pen. Code, § 243.4, subd. (c)).

The opinions can be viewed Monday starting at 10:00 a.m.

May 19, 2016

Summary of May 18, 2016 conference report for civil cases

In its conference on Wednesday, May 18, 2016, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

May 19, 2016

Supreme Court narrows Elder Abuse Act liability for healthcare providers

In Winn v. Pioneer Medical Group, Inc., the Supreme Court today holds that healthcare providers are not exposed to heightened liability under the Elder Abuse and Dependent Adult Civil Protection Act unless they “had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.”  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar warns that “[b]lurring the distinction between neglect under the Act and conduct actionable under ordinary tort remedies — even in the absence of a care or custody relationship — risks undermining the Act’s central premise.”

The court reverses the Second District, Division Eight, Court of Appeal, which had issued a divided opinion.  This is the second time in 10 days that the Supreme Court has reversed a 2-1 decision from that Court of Appeal.  The Supreme Court also disapproves a 2000 opinion by the Third District Court of Appeal.

May 18, 2016

Elder Abuse Act opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Winn v. Pioneer Medical Group, Inc., which was argued on the March calendar.

This will be the first opinion in any of the five March cases.  The court has until a week from tomorrow — and two more regular filing days — to file opinions in the other four.

In Winn, the court will decide whether “neglect” within the meaning of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15657) includes a health care provider’s failure to refer an elder patient to a specialist if the care took place on an outpatient basis, or whether an action for neglect under the Act must allege that the defendant health care provider had a custodial relationship with the elder patient.

The opinion can be viewed tomorrow starting at 10:00 a.m.

 

May 13, 2016

Summary of May 11, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 11, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.  This week, we also note that the Court has limited the issues to be decided in a pending case, and has vacated submission in another matter in order to take additional briefing on defined issues.

Review Granted

Alvarado v. Dart Container Corporation of California, S232607- Review Granted- May 11, 2016

This case presents the following question:  What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus?

The Court of Appeal, Fourth District, Division Two, held in a published opinion, Alvarado v. Dart Container Corporation of California (2016) 243 Cal.App.4th 1200, that held that employer’s formula for calculating the overtime rate for per-shift payments did not violate state law.

In re F.T., S233479- Review Granted and Held- May 11, 2016

The Supreme Court granted review and ordered briefing deferred pending its decision in In re Isaiah W., S221263, which presents the following issue: “Does a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights?”  The Court of Appeal, Fifth District, held in In re F.T. (Mar. 1, 2016, F072329) 2016 WL 800722 (nonpub.opn.) upheld an order terminating parental rights.

In re R.R., S233253- Review Granted and Held- May 11, 2016

In re R.R. presents the same issue as In re F.T. above, and the Supreme Court likewise ordered briefing deferred pending its decision in In re Isaiah W., S221263.  The Fifth District Court of Appeal in In re R.R. (Feb. 11, 2016, F070994) 2016 WL 544826 (nonpub. opn.), upheld a dependency court’s order terminating parental rights.

Review Denied (with dissenting justices)

None.

Depublished

None.

Issues Limited

Kim v. Toyota Motor Corporation, S232754- Issues Limited- May 11, 2016

The Supreme Court granted review in this case on April 13, 2016.  On May 11, the Court ordered the issue to be briefed and argued limited to the following: Did the trial court commit reversible error in admitting, as relevant to the risk-benefit test for design defect, evidence of industry custom and practice related to the alleged defect?

The Court of Appeal, Second District, Division Seven, held in a published decision, Kim v. Toyota Motor Corporation (2016) 243 Cal.App.4th 1366 that: (1) the jury could consider evidence of industry custom and practice in the risk-benefit analysis to determine whether a product has a defect supporting strict products liability;(2) the jury could consider a manufacturer’s compliance or noncompliance with Federal Motor Vehicle Safety Standards (FMVSS) and industry custom in applying the risk-benefit test;(3) the trial court acted within its discretion in concluding that manufacturer’s slideshows about electronic stability control systems were unduly prejudicial;(4) the consumer expectations test was inapplicable to a motorist’s products liability claim; and(5) trial court acted within its discretion in instructing plaintiff’s counsel to finish rebuttal argument within three more minutes.

Submission Vacated

Friends of the College of San Mateo Gardens v. San Mateo County Community College District, S214061 – Submission Vacated- May 11, 2016

This case was argued and submitted on May 4.  A week later, on May 11, the Supreme Court vacated submission and directed the filing of supplemental briefs on the following questions: (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration? (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479–1482.) (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute? (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073–1074 with Benton at pp. 1479–1480.)

The Court of Appeal, First District, Division One, held in Friends of the College of San Mateo Gardens v. San Mateo County Community College District (Sept. 26, 2013, A135892) 2016 WL 5377849 (nonpub. opn.) that the demolition project at issue was a new project not subject to an addendum and thus required additional environmental review.

May 12, 2016

June calendar has seven cases

The Supreme Court today announced its June calendar.  These will be the last oral arguments of the court’s 2015-2016 term.  We’re not sure whether “term” is an official, well, term for California’s Supreme Court as it is for the U.S. Supreme Court, but it’s appropriate, because the state high court does not hear oral arguments in July or August.

On June 1 and 2, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Armstrong:  This is an automatic appeal from a January 2005 judgment of death.  The court’s website does not list issues for such appeals.

People v. Rinehart:  Does the Mining Act of 1872 (30 U.S.C. § 22 et seq.) preempt California Fish and Game Code sections 5653 and 5653.1 with respect to the use of vacuum and suction dredging equipment?

People v. Covarrubias:  This is an automatic appeal from an October 1998 judgment of death.  The court’s website does not list issues for such appeals.

Bristol-Myers Squibb Company v. Superior Court:  (1) Did the plaintiffs in this action who are not residents of California establish specific jurisdiction over their claims against the nonresident pharmaceutical drug manufacturer?  (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]?
[Disclosure:  Horvitz & Levy is co-counsel for Bristol-Myers.]

Department of Finance v. Commission on State Mandates:  Are the requirements in the National Pollutant Discharge Elimination System (NPDES) permits issued to real parties in interest by the regional water quality control board state mandates subject to reimbursement under article XIII B, section 6, subdivision (b), of the state Constitution?

Horiike v. Coldwell Banker Residential Brokerage:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality and counseling to both?
[Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]

Kesner v. Superior Court:  If an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?
[Disclosure:  Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC.]

 

May 9, 2016

Supreme Court reinstates murder conviction

In  People v. Cortez, the Supreme Court today reverses the Second District, Division Eight, Court of Appeal, which, in a divided opinion, had reversed the murder conviction of one of two defendants.  The Court of Appeal had found three separate bases for overturning the conviction, but the Supreme Court’s opinion by Justice Ming Chin concludes there was no error.

The defendant in the case loses today, but she scores a point for the defense bar in general.  The court disapproves two of its own pro-prosecution opinions, one from 1988 and the other from 1981, concerning when it is acceptable to instruct jurors that, in evaluating the evidence against a testifying defendant, they could consider the defendant’s failure to explain or deny that evidence if the defendant could reasonably be expected to have done so based on what the defendant knew.

The court is unanimous, but only regarding the bottom line.  Justice Kathryn Werdegar — joined by Justices Goodwin Liu and Mariano-Florentino Cuéllar — writes a concurring opinion, mostly focusing on an issue of prosecutorial misconduct in describing the beyond-a-reasonable-doubt standard of proof.  Although she finds the prosecutor’s statements to the jury to be harmless, she is not as forgiving of the conduct as is the majority.  She colorfully writes, “The majority characterizes the prosecutor’s remarks as ‘correct’ but ‘incomplete.’  [Citation.]  This is a bit like describing the maiden voyage of the Titanic as ‘incomplete.'”

May 9, 2016

Supreme Court upholds firearms charge

In People v. Wade, the Supreme Court today holds that a person wearing a backpack containing a loaded revolver can be guilty of carrying a loaded firearm “on the person.”  The unanimous opinion by Justice Ming Chin affirms the Second District, Division Five, Court of Appeal.  That Court of Appeal had disagreed with reasoning in a 2013 opinion by the Second District, Division One, which held that a knife in a backpack was not carried “on the person.”  The Supreme Court disapproves reasoning in the earlier opinion, although “not necessarily” its holding.  It agrees with a 1976 opinion by the appellate department (now appellate division) of the Los Angeles County Superior Court, as well as with appellate decisions from New York, Oregon, and Alaska.

The court concludes that the statute which the defendant was convicted of violating is to be “applied consistent with the Legislature’s concern with the threat to public safety from those with control over and ready access to loaded guns in public.”

May 6, 2016

Two criminal opinions filing Monday, one quickly, the other not so much

Monday is the last day for the Supreme Court to file its opinion in the last February calendar case yet to be decided.  And file its opinion the court will.  It will also file its first opinion for cases argued on the April calendar, even though we haven’t seen any opinions from the five-case March calendar.

The difference in time from oral argument to opinion mirrors the difference in how quickly (or slowly) the cases were scheduled for argument in the first place.  The court granted review in the February calendar case — People v. Cortez — in September 2013.  Review was granted in the April calendar case — People v. Wade — in April 2015.  In fact, Wade is so much ahead of Cortez that Supreme Court briefing was completed in Cortez before the Wade case was even on the Court of Appeal docket.  The temporal contrast is not unusual.

In Cortez, two defendants were convicted of murder and attempted murder.  The Court of Appeal reversed one defendant’s conviction and affirmed the other in an unpublished opinion.  A dissenting justice wrote that both convictions should have been affirmed.

The losing defendant petitioned the Supreme Court for review.  So did the People, as to the conviction that was overturned.  The Supreme Court granted the People’s petition and denied the defendant’s.  The issue stated on the Supreme Court’s website is:  Did the Court of Appeal err by reversing the conviction of defendant Cortez due to error in admitting a statement made by defendant Bernal to his nephew, error in instructing the jury with CALCRIM No. 361, and prosecutorial misconduct?

In Wade, the court will decide whether a defendant is carrying a firearm “on his person” within the meaning of Penal Code section 25850, subdivision (a), if he is wearing a backpack containing a firearm.  The Court of Appeal’s published opinion answered the question affirmatively.

The opinions can be viewed Monday starting at 10:00 a.m.

May 5, 2016

A dozen cases on the late-May calendar

May is the only month with two oral argument calendars, and both are typically larger than normal.  So, as the court today finishes its 15-case early-May calendar, it announces a 12-case late-May calendar.

Two of the cases made their ways onto this calendar by procedurally rare routes.  One is a death penalty case in which the court granted rehearing more than a year ago.  The other is a case in which review was granted on the court’s own motion.

On May 26 and 27, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

City of Montebello v.Vasquez:  Did votes by city officials to approve a contract constitute conduct protected under Code of Civil Procedure section 425.16 despite the allegation that they had a financial interest in the contract?

City of Perris v. Stamper:  (1) Is the constitutionality of an otherwise reasonably probable dedication requirement that a governmental entity claims it would have required in order to grant the property owner permission to put his or her property to a higher use a question that must be resolved by a jury pursuant to article I, section 19 of the California Constitution?  (2) Was the dedication requirement claimed by the City of Perris a “project effect” that the eminent domain law requires to be ignored in determining just compensation?
This argument was continued at the last minute from the early-May calendar.

McLean v. State of California:  (1) When bringing a putative class action to recover penalties against an “employer” under Labor Code section 203, may a former state employee sue the “State of California” instead of the specific agency for which the employee previously worked?  (2) Do Labor Code section 202 and 203, which provide a right of action for an employee who “quits” his or her employment, authorize a suit by an employee who retires?

People v. Vidana:  Can a defendant be convicted of both embezzlement (Pen. Code, § 503) and grand theft by larceny (Pen. Code, § 487(a)) for the same conduct?

People v. Simon:  This is an automatic appeal from a November 2001 judgment of death.  The court’s website does not list issues for such appeals.

People v. Grimes:  This is the rehearing case and it will be the third argument in the matter.  It’s an automatic appeal from a January 1999 judgment of death.  The court’s website does not list issues for such appeals, but one of the issues is the standard of review for whether an error is prejudicial.  In another case, at the end of last year, the court indicated how the justices might divide on that issue.

Laffitte v. Robert Half International Inc.:  Does Serrano v. Priest (1977) 20 Cal.3d 25 permit a trial court to anchor its calculation of a reasonable attorney’s fees award in a class action on a percentage of the common fund recovered?

Maas v. Superior Court:  Does Code of Civil Procedure section 170.6 permit a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus?
This is the case in which the court granted review on its own motion.

People v. Nelson:  This is an automatic appeal from a September 1995 judgment of death.  The court’s website does not list issues for such appeals.

People v. Burgener:  This is an automatic appeal from a December 2009 judgment of death.  The court’s website does not list issues for such appeals.

People v. Rodriguez:  (1) Does Penal Code section 1538.5, subdivision (p) vest the trial court with discretion to determine whether the judge who heard a defendant’s original motion to suppress is “available” to hear a subsequent motion, and if so, what considerations should guide the trial court in exercising that discretion?  (2) Did the trial court err in concluding that the original judge was “unavailable” to hear a renewed motion to suppress within the meaning of Penal Code section 1538.5, subdivision (p)?

People v. Moran:  Was the condition of probation barring defendant from all Home Depot stores and their parking lots after he was convicted of shoplifting at a single Home Depot store unconstitutionally overbroad as impinging on his constitutional right to travel?
Like the City of Perris case, this case was continued from the early-May calendar.

May 5, 2016

Vexatious-litigant defendant doesn’t need permission to appeal adverse judgment

Concluding that “[a] different interpretation would impede . . . access to the appellate courts without advancing the underlying purpose of the vexatious litigant statutes,” the Supreme Court in John v. Superior Court today holds that defendants who have been declared vexatious litigants need not get the presiding justice or judge’s permission before appealing judgments against them.  A vexatious-litigant plaintiff does need that permission.

The court’s unanimous opinion by Justice Ming Chin affirms the Second District, Division Seven, Court of Appeal.  It disapproves a 2009 Fifth District opinion and a 1998 First District, Division Four, opinion. The Supreme Court likes a 2008 Fourth District, Division One, opinion, although the court does disapprove language in the opinion “to the extent it could be interpreted as precluding a Court of Appeal from declaring an in propria persona defendant on appeal to be a vexatious litigant.”

May 5, 2016

No conference held the week of May 2, 2016

The Court held no conference this week because it is hearing oral argument in San Francisco on 15 cases (including the Governor’s writ petition seeking to qualify his Justice and Rehabilitation Act initiative for the November ballot).  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

May 5, 2016

MICRA statute of limitations bars patient’s action

In Flores v. Presbyterian Intercommunity Hospital, the Supreme Court holds the one-year statute of limitations in the Medical Injury Compensation Reform Act (MICRA) applies to the lawsuit brought by a patient injured when a rail on her hospital bed collapsed.  By its terms, the limitations period applies to those actions that are “for injury or death against a health care provider based upon such person’s alleged professional negligence.”  The lawsuit would have been timely only if it had been governed by the two-year statute of limitations applicable to personal injury actions in general.

Resolving long-standing uncertainty about the meaning of “based upon . . . goldilocks1professional negligence,” the unanimous opinion by Justice Leondra Kruger uses a Goldilocks approach, settling on an interpretation of the statutory language that is in between those the parties advocated.  The patient’s proposed rule “is too narrow” and the defendant hospital’s proposed rule “is too broad,” the court finds.  Instead, the court concludes, “Because plaintiff’s injury resulted from alleged negligence in the use and maintenance of equipment needed to implement the doctor’s order concerning her medical treatment, . . . plaintiff’s claim sounds in professional, rather than ordinary, negligence.”

The court reverses the Second District, Division Three, Court of Appeal.

May 4, 2016

MICRA, vexatious litigant opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two cases argued on the February calendar.

Flores v. Presbyterian Intercommunity Hospital raises these questions:  (1) Does the one-year statute of limitations for claims under the Medical Injury Compensation Reform Act (Code Civ. Proc., § 340.5) or the two-year statute of limitations for ordinary negligence (Code Civ. Proc., § 335.1) govern an action for premises liability against a hospital based on negligent maintenance of hospital equipment?  (2) Did the injury in this case arise out of “professional negligence,” as that term is used in section 340.5, or ordinary negligence?

In John v. Superior Court, the court will address whether a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) must obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment.

The opinion can be viewed tomorrow starting at 10:00 a.m.

May 3, 2016

Summary of April 27, 2016 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 27, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Leider v. Lewis, S232622—Review Granted—April 27, 2016

The Supreme Court limited review to the following issues: (1) Does Civil Code section 3369 bar taxpayer actions brought under the authority of Code of Civil Procedure section 526a seeking to enjoin violations of Penal Code provisions concerning animal abuse? (2) Does the law of the case doctrine foreclose petitioners’ reliance upon that legal argument in this appeal?

The Court of Appeal, Second District, Division Eight, held in a published decision, Leider v. Lewis (2016) 243 Cal.App.4th 1078, that (1) the prior Court of Appeal decision was law of the case as to the argument that a taxpayer was precluded from obtaining injunctive relief for conduct that violated the Penal Code; (2) refusing to apply a statute prohibiting issuance of injunction to enforce penal law would not create substantial injustice; (3) an order to rototill soil and to make sure elephants received exercise was proper; (4) substantial evidence supported findings that conditions at exhibit did not amount to abuse or cruelty as defined by animal cruelty provisions of Penal Code; (5) trial court properly denied relief under statute making failure to care for animals a misdemeanor; and (6) reversal in favor of taxpayer was not compelled under injury prong element of statute governing actions against officers for injury to public property.

Perry v. Bakewell Hawthorne, S233096—Review Granted—April 27, 2016

The Supreme Court limited review to the following issue: Does Code of Civil Procedure section 2034.300, which requires a trial court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to comply with the rules for exchange of expert witness information, apply to a motion for summary judgment?

The Court of Appeal, Second District, Division Two, held in a partially published decision, Perry v. Bakewell Hawthorne (2016) 244 Cal.App.4th 712, that (1) a premises owner, who participated in an exchange of expert witness information with the premises occupant, had standing to object to a visitor’s expert declarations in personal injury action, even if the occupant, rather than the owner, served the demand, and (2) the visitor unreasonably failed to disclose his expert witnesses such that trial court could exclude the visitor’s expert declarations.

Ryan v. Rosenfeld, S232582—Review Granted—April 27, 2016

The Supreme Court limited review to the following issue: Is the denial of a motion to vacate a judgment under Code of Civil Procedure section 663 separately appealable?

The Court of Appeal, First District, Division Four dismissed the appeal (A145465; nonpublished order).  The court held the pro per plaintiff had failed to file a timely notice of appeal from the judgment of dismissal.  It further held that the plaintiff’s appeal from the denial of his motion to vacate the judgment was an appeal from a non-appealable order.  It reasoned that “[t]o permit an appeal from an order denying a motion to vacate would effectively authorize two appeals from the same decision.”

Sheppard, Mullin, Richter & Hampton v. J-M Manufacturing, S232946—Review Granted—April 27, 2016

This case presents the following issues: (1) May a court rely on non-legislative expressions of public policy to overturn an arbitration award on illegality grounds? (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest? (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work?

The Court of Appeal, Second District, Division Four, held in a published decision, Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing (2016) 244 Cal.App.4th 590, that (1) the question of enforceability of the parties’ agreement was for the court, rather than an arbitrator, to decide; (2) the attorneys in question violated the rules of professional conduct by representing a client while also representing an adverse party in prior litigation in unrelated matters; (3) the attorneys’ violation of the rules of professional conduct rendered the parties’ agreement unenforceable; and (4) the attorneys’ violation of the rules of professional conduct precluded attorneys from collecting attorney fees from client for work done while actual conflict existed.

Review Denied (with dissenting justices)

None.

Depublished

Seacrist v. Southern California Edison Co., S233332—Depublished Court of Appeal Opinion—April 27, 2016

The Court ordered depublished the opinion, filed January 27, 2016, which appears at 244 Cal.App.4th 308.

The Court of Appeal, Fourth District, Division Two, held in Seacrist v. Southern California Edison Company (2016) 197 Cal.Rptr.3d 834, that: (1) homeowners were not bound by the theory that the trial court’s jurisdiction was based upon the defendant electric company’s violation of rule prohibiting utilities from using ground or earth as a normal neutral to return electricity along the circuit; (2) the trial court had authority to decide whether the electric company was negligent; (3) the trial court had authority to determine nuisance, trespass, and intentional infliction of emotional distress claims; and (4) the trial court had authority to determine products liability, breach of implied warranty of fitness, and ultra-hazardous activity claims.

May 3, 2016

Live streaming of oral arguments begins this morning

Live streaming of Supreme Court oral arguments, which the Chief Justice announced in her State of the Judiciary address two months ago, starts with the court’s early-May calendar, which begins this morning.

According to a notice on the California Courts website, “The webcast can be accessed through website buttons posted at the time of oral argument on the California Courts website (the home page, the court’s home page and calendar page).”

The live stream sounds like it will be quite user friendly.  There will be “real-time captioning in English and Spanish” and a “companion document [that] will identify the justices as seated on the bench, the cases in each session, the counsel representing the parties in each case, and the issue(s) under review by the court.”  There will also be a “link to the case Docket and the Briefs filed for each case.”

April 29, 2016

Governor’s initiative writ petition a late addition to the early-May calendar

The Supreme Court today announced that it will hear oral argument in six days on Governor Jerry Brown’s writ petitionBrown v. Superior Court — that seeks to eliminate a roadblock to qualifying his Justice and Rehabilitation Act initiative for November’s ballot.  Less than two months ago, the court issued an order to show cause on the petition and set an expedited briefing schedule.

The early-May calendar initially had a whopping 17 cases on it.  It’s now down to 15, even with the addition of Brown v. Superior Court, because one appeal was abated and two others have been continued to the late-May calendar (here and here).  One of the continuances was prompted by a request filed just today.

April 26, 2016

Summary of April 20, 2016 conference report for civil cases

 

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 20, 2016. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

In re J.B., S232895—Review Granted and Held—April 20, 2016

The Court of Appeal affirmed an order terminating parental rights. The Supreme Court granted review and ordered briefing deferred pending decision in In re Isaiah W., S221263, which presents the following issue: Does a parent’s failure to appeal from a juvenile court order finding that notice under the Indian Child Welfare Act was unnecessary preclude the parent from subsequently challenging that finding more than a year later in the course of appealing an order terminating parental rights?

The Fifth District Court of Appeal, in an unpublished opinion, In re J.B. (Feb. 5, 2016, F072070) 2016 WL 463318, affirmed a juvenile court order terminating a mother’s parental rights to her biological son because she failed to comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.).

Review Denied (with dissenting justices)

None.

Depublished

None.

April 22, 2016

Defendant’s death ends Fourth Amendment appeal

In People v. Ikeda, the Supreme Court was poised to address these questions:  (1) After detaining a person outside a hotel room, may law enforcement officers enter the detainee’s room to conduct a protective sweep under Maryland v. Buie (1990) 494 U.S. 325 based on a reasonable suspicion the room harbors a person posing a danger to officer safety?  (2) Did law enforcement officers have reasonable suspicion in this case to believe defendant’s hotel room harbored a person who posed a danger to officer safety?

After the court scheduled argument in the case for the early-May calendar, however, the Attorney General told the court that the defendant had died and then moved to abate the appeal.  (See People v. St. Maurice (1913) 166 Cal. 201, 202 [defendant’s death pending appeal causes “all proceedings in the matter [to] incurably abate”.)  The court granted the motion and canceled oral argument.

The court wasn’t required to dump the appeal.  It could have still resolved the issues raised in the case.  (See In re Sheena K. (2007) 40 Cal.4th 875, 879 [exercising court’s “inherent authority” to decide a “technically moot” appeal after defendant’s death].)  In fact, the Ikeda defense counsel opposed the motion to abate.  As with settlements before decision, a criminal defendant’s death might or might not prevent a Supreme Court opinion.

April 21, 2016

Supreme Court affirms death sentence, finding inadequate appellate record to be not prejudicial

The Supreme Court today affirms the death penalty in People v. Townsel.  Although the death sentence remains intact, the unanimous opinion by Justice Kathryn Werdegar does reverse one special circumstance finding and the conviction for one charge against the defendant.  The reversal is based on instructional error.

The court also finds that, because of lost superior court records regarding a Pitchess motion the defendant made about a penalty phase witness, the appellate record was inadequate to review the defendant’s claim that the superior court’s ruling on the motion was erroneous.  However, this does not require a reversal because, the court concludes, there is “no reasonable possibility defendant would have received a more favorable result in this proceeding, even assuming an adequate record would have enabled us to conclude the trial court improperly failed to disclose material responsive to defendant’s Pitchess motion.”