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.

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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.”

April 20, 2016

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Townsel, an automatic appeal from a September 1991 judgment of death.  Although the court’s website does not list issues for these direct appeals, the court did ask for supplemental briefing about the effect on the appeal of the superior court’s acknowledgement that it is unable to produce the records the superior court reviewed in ruling on the appellant’s Pitchess motion.

Townsel will be the first opinion for cases argued on the February calendar.

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

April 15, 2016

Summary of April 13, 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 13, 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

Kim v. Toyota Motor Corporation, S232754 – Review Granted—April 13, 2016

The question presented is the following: Is evidence of industry custom and practice admissible in a strict products liability action?

Plaintiff’s pickup truck when he swerved to avoid another vehicle and suffered severe injuries. Plaintiffs alleged the accident occurred because the pickup lacked electronic stability control (ESC), also known as vehicle stability control (VSC), and that the absence of that device or system was a design 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 the trial court did not abuse its discretion in denying plaintiff’s motion in limine to exclude all evidence of industry custom and practice.

King v. CompPartners, Inc., S232197 – Review Granted—April 13, 2016

This case presents the following issues: (1) Is an injured worker’s claim for medical malpractice against a workers’ compensation utilization review company barred by workers’ compensation as the exclusive remedy? (2) Does a workers’ compensation utilization review company that performs medical utilization reviews on behalf of employers owe a duty of care to an injured worker? (3) Did the Court of Appeal err in finding that plaintiffs should be given leave to amend their complaint in this case?

As part of a Workers’ Compensation utilization review, defendant physician determined a drug was unnecessary and decertified it.  Plaintiff later experienced seizures and physical injury, allegedly due to the sudden cessation of the drug.  The Court of Appeal, Fourth District, Division Two, held in a published decision King v. CompPartners, Inc. (2016) 243 Cal.App.4th 685, that: (1) the trial court erred in prohibiting plaintiffs from amending their complaint because their failure to warn claim was not subject to Workers’ Compensation exclusivity; (2) defendants owed plaintiff a duty of care because a doctor-patient relationship existed between the parties; (3) the trial court properly sustained the demurrer to plaintiffs existing complaint because the scope of the duty was uncertain due to the lack of details in plaintiff’s complaint.

Renwick v. Sutter Medical Foundation, S232289– Review Granted and Held—April 13, 2016

The court ordered briefing deferred pending decision in Winn v. Pioneer Medical Group, Inc., S211793, which presents the following issue:  Does “neglect” within the meaning of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15657) include a health care provider’s failure to refer an elderly patient to a specialist if the care occurred on an outpatient basis, or must an action for neglect under the Act allege that the defendant health care provider had a custodial relationship with the elderly patient?

The Court of Appeal, Third District, ruled in an unpublished opinion, Renwick v. Sutter Medical Foundation (2016) 2016 WL 128692, that plaintiff could not state a claim for elder abuse because: (1) plaintiff’s mother was not in defendant’s custody when she was injured; (2) the complaint failed to allege facts showing defendant was aware plaintiff’s mother was likely to become injured; (3) plaintiff could not amend the complaint because the one-year MICRA statute of limitations had passed.

Review Denied (with dissenting justices)

None.

Depublished

None.

April 13, 2016

“Before Ted Ligety, Park City’s most famous native son”

The Park Record (of Park City, Utah) reminisces about former Chief Justice Roger

Roger Traynor with fellow members of the 1916-17 Park City High School Debate Team.

Roger Traynor with fellow members of the 1916-17 Park City High School Debate Team.

Traynor, who was born and raised in Park City.  The article notes that “Traynor’s teachers (one of whom would later serve on the Utah Supreme Court) recognized Traynor’s talents and encouraged him to attend college.”  (Ted Ligety, for those like me who didn’t know, is a two-time Olympic gold medalist giant slalom skier.)

April 8, 2016

No conference held the week of April 4, 2016, and no civil petitions for review granted on March 30

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.  While in LA, the justices were guests of honor at the annual luncheon of the Appellate Courts Section of the Los Angeles County Bar Association.  Full disclosure: Horvitz & Levy partner Brad Pauley (yours truly) is Chair of the Section.

Last week, in its conference on March 30, the Court granted no petitions for review in civil cases (not counting grant-and-transfers), no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

 

April 8, 2016

The Chief Justice on “What I Told My Daughter(s)”

Today’s Daily Journal [subscription] includes an excerpt of Chief Justice Tani Cantil-Sakauye’s contribution to the recently published book, “What I Told My Daughter.”  In the book, a diverse group of dozens of powerful women — Mia Hamm, Justice Ruth Bader Ginsburg, Laura Bush, Nancy Pelosi, Whoopi Goldberg, Dolores Huerta, to name a few — share advice they’ve given their daughters.

Among other things, the Chief Justice explains how life is like basketball.  A former Foulhoopster herself, she told her daughters when they played that the rules could be followed strategically.  If they were being kicked around on the court without consequence, her daughters were told to use four of their five fouls.  “Use the rules to your advantage; don’t waste opportunities,” is her advice.

The Chief Justice also reflects on career paths, which, she says, should have no rules.  She did not have a master plan to become chief justice, or to be appointed to any of her three previous judicial positions.  Instead, she explains, “I met lawyers who saw the future of the bench and bar as something other than patrilineal institutions” and “who saw the future and me in it.”

April 4, 2016

17-case (!) early-May calendar announced

Because the Supreme Court doesn’t hear oral arguments in July and August, its two or three calendars before the summer are traditionally heavy ones.  This year is no exception.  May is the only month with two oral argument sessions, and the just announced early-May calendar has 17 cases over three days.  The calendar is fairly evenly divided between civil and criminal cases.

In two of the cases (In re Richards and People v. Macabeo), the court will deal with the aftermath of prior decisions having been unfavorably received by the Legislature (Richards) or the U.S. Supreme Court (Macabeo).

On May 3, 4, and 5, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Property Reserve, Inc. v. Superior Court:  (1) Do the geological testing activities proposed by the Department of Water Resources constitute a taking?  (2) Do the environmental testing activities set forth in the February 22, 2011, entry order constitute a taking?  (3) If so, do the precondemnation entry statutes (Code Civ. Proc., §§ 1245.010-1245.060) provide a constitutionally valid eminent domain proceeding for the taking?

Sandquist v. Lebo Automotive, Inc.:  Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on the issue?

People v. Fuentes:  Does the trial court have the power under Penal Code section 1385 to dismiss a Penal Code section 186.22 enhancement for gang-related crimes, or is the court limited to striking the punishment for the enhancement in accordance with subdivision (g) of section 186.22?

In re Isaiah W.:  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 United States is one of the amici curiae in this case.

In re Abbigail A.:  Do rules 5.482(c) and 5.484(c)(2) of the California Rules of Court conflict with Welfare and Institutions Code section 224.1, subdivision (a), by requiring the juvenile court to apply the provision of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) to a child found by a tribe to be eligible for tribal membership if the child has not yet obtained formal enrollment?
The United States is an amicus curiae in this case, too.  Here, however, the court solicited the amicus brief, asking the federal government six months ago to discuss “whether rules 5.482(c) and 5.484(c)(2) of the California Rules of Court are preempted to the extent those rules purport to require California courts to apply the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA) in child custody proceedings involving a minor who is not an ‘Indian child’ as defined in ICWA.  (See 25 U.S.C. § 1903(4); cf. id., §§ 1902 & 1921.)”

In re Richards:  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).
The court is revisiting this conviction after legislation overruled its earlier decision.

Friends of the College of San Mateo Gardens v. San Mateo County Community College District:  When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Ramos v. Brenntag Specialties, Inc.:  Are 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 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.]

People v. Ikeda:  (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?

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?

People v. Morales:  Can excess custody credits 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 court’s docket is filled with Proposition 47 cases, raising a variety of issues.  Morales is just one of them, but there are at least a half dozen grant-and-hold cases waiting for the Morales decision.

People v. Macabeo:  (1) May law enforcement officers conduct a search incident to the authority to arrest for a minor traffic offense, so long as a custodial arrest (even for an unrelated crime) follows?  (2) Did Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] require the exclusion of evidence obtained during the warrantless search of the suspect’s cell phone incident to arrest, or did the search fall within the good faith exception to the exclusionary rule (see Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419, 180 L.Ed.2d 285]) in light of People v. Diaz (2011) 51 Cal.4th 84?
Macabeo raises an issue in the wake of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision.

City of Perris v. Stamper:  (1) In this eminent domain case, was the constitutionality of the dedication requirement — that the city claimed it would have required in order to grant the property owner permission to put the property to a higher use — a question that had to be resolved by the jury pursuant to article I, section 19, of the California Constitution?  (2) Was the dedication requirement a “project effect” that the eminent domain law required to be ignored in determining just compensation?

Baral v. Schnitt:  Does a special motion to strike under Code of Civil Procedure section 425.16 authorize a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute?

People v. Espinoza:  (1) Did the trial court err in continuing trial in defendant’s absence without a valid waiver of his trial rights or appointment of counsel after defendant, who was out of custody and representing himself, voluntarily failed to appear for his ongoing trial?  (2) Was reversal required because the trial court refused to grant defendant a one-day continuance after it granted his motion during jury selection to represent himself?

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

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

April 4, 2016

Supreme Court offers California employees a seat

In Kilby v. CVS Pharmacy, Inc., the Supreme Court today re-frames and answers questions posed by the Ninth Circuit about when California employers must provide suitable seating for their employees.  The unanimous opinion by Justice Carol Corrigan interprets wage orders, adopted by the now-defunded Industrial Welfare Commission, that provide, “[a]ll working employees shall be provided with suitable seats when the nature of the work reasonably permits the use of seats.”

The court concludes:  (1) “The ‘nature of the work’ refers to an employee’s tasks performed at a given location for which a right to a suitable seat is claimed, rather than a ‘holistic’ consideration of the entire range of an employee’s duties anywhere on the jobsite during a complete shift,” (2) “Whether the nature of the work reasonably permits sitting is a question to be determined objectively based on the totality of the circumstances” and “[a]n employer’s business judgment and the physical layout of the workplace are relevant but not dispositive factors,” and (3) “The nature of the work aside, if an employer argues there is no suitable seat available, the burden is on the employer to prove unavailability.”

April 2, 2016

Don’t get too excited about that extension order

You’ve just filed a depublication request in a case where nobody filed a petition for review, and the Supreme Court issues an order stating, “The time for granting review on the court’s own motion is hereby extended to” a date about two months later.  You think, “Wow!  I knew I wrote a great depub request, but it was so good the court is now seriously thinking about taking the case and deciding it, even though no party asked the court to do that and even though the court hardly ever grants review on its own motion.”

Or, you’ve lost a case in the Supreme Court and you’ve just filed a rehearing petition and the court issues an order stating, “The time for granting or denying rehearing in the above-entitled case is hereby extended to,” again, a date about two months away.  This time, you think, “Wow!  I knew I could convince the court that its opinion sets California law back decades, even though the court hardly ever grants rehearing.”

In either situation, your second thought is, “I’ve got to call my clients to tell keep-calm-and-don-t-get-excited.jpgthem this amazing news!”  Our advice:  step away from the phone.

In both cases, the extension orders are routine.  As far as we can tell, the court now always extends its time to grant review on its own motion when a depublication request is filed in a case without a petition for review and it always extends its time to rule on a rehearing petition.  The court is just keeping its options open.  While it’s still possible the court will grant review on its own motion or will grant rehearing (but don’t bet on it), the extension order is no indication that that action is more likely than in any other case.

The court also can extend its time to rule on a petition for review.  It doesn’t do that in every case, but the (lack of) significance of an extension order there is about the same as when the court extends its time to grant review on its own motion or to grant rehearing.  When a client hopefully asked whether it was good news that the court extended its time to rule on a petition for review, our founder Ellis Horvitz, would accurately respond, “The extension is better than a denial, but not as good as a grant.”  There’s not much more you can glean from an extension order.

April 1, 2016

Employee seating opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Kilby v. CVS Pharmacy, Inc., the last case from the January calendar that hasn’t been decided yet.

The court will be answering these questions at the request of the Ninth Circuit:  For purposes of IWC Wage Order 4-2001 § 14(A) and IWC Wage Order 7-2001 § 14(A), “(1) Does the phrase ‘nature of the work’ refer to an individual task or duty that an employee performs during the course of his or her workday, or should courts construe ‘nature of the work’ holistically and evaluate the entire range of an employee’s duties? (a) If the courts should construe ‘nature of the work’ holistically, should the courts consider the entire range of an employee’s duties if more than half of an employee’s time is spent performing tasks that reasonably allow the use of a seat?  (2) When determining whether the nature of the work ‘reasonably permits’ the use of a seat, should courts consider any or all of the following: the employer’s business judgment as to whether the employee should stand, the physical layout of the workplace, or the physical characteristics of the employee?  (3) If an employer has not provided any seat, does a plaintiff need to prove what would constitute ‘suitable seats’ to show the employer has violated Section 14(A)?

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

March 31, 2016

“A dissenting voice shakes up state’s high court”

Maura Dolan reports in today’s Los Angeles Times about Justice Goodwin Liu’s two dissents (see here and here) from denials of review.

The article includes a mention of this blog (thank you!) and also quotes me.  One minor correction.  The defendant in the case which drew Justice Liu’s first dissent — In re Joseph H. — has petitioned the U.S. Supreme Court for certiorari.  The article reports that I said the certiorari petition cites Justice Liu’s dissent.  The petition probably does cite the dissent, but I haven’t seen the petition.

March 28, 2016

Supreme Court upholds arbitration agreement

In Baltazar v. Forever 21, Inc., the Supreme Court today unanimously enforces an arbitration agreement that precludes a court trial on an employee’s action alleging harassment, race and sex discrimination, and retaliation.  The employee claimed the agreement unreasonably favored her employer because, although it allowed either party to seek from a court preliminary injunctive relief even if a claim is being arbitrated, the employer was more likely than an employee to seek that relief.  The court’s opinion by Justice Leondra Kruger rejects the argument because the agreement’s injunctive relief provision just restates a right the parties have by statute anyway.  The court concludes that “an arbitration agreement is not substantively unconscionable simply because it confirms the parties’ ability to invoke undisputed statutory rights.”

The court affirms the Second District, Division One, Court of Appeal.  It disapproves a 2010 decision by the First District, Division Four, Court of Appeal.

March 28, 2016

Supreme Court affirms death penalty, straightens out inconsistency about forfeiting an argument

The Supreme Court today affirms the death penalty in People v. Rangel.  The court’s opinion, authored by Justice Leondra Kruger, rejects numerous arguments, including the claim that the trial court violated the defendant’s Sixth Amendment right to a jury with a representative cross-section of the community because Hispanic prospective jurors were underrepresented.

On another Sixth Amendment issue — concerning forfeiture of a confrontation-clause objection under the U.S. Supreme Court’s Crawford v. Washington (2004) 541 U.S. 36 decision — the court “acknowledge[s] that our approach to this issue has not been entirely consistent.”  The court holds that, “in a case tried before Crawford, a defendant does not forfeit a Crawford challenge by failing to raise a confrontation clause objection at trial,” and it “expressly reject[s] any . . . suggestion” in four of its earlier cases “that counsel may be faulted for failing to object on Crawford grounds in a case tried before Crawford was decided.”

March 26, 2016

Another dissenting statement from the denial of review . . . but you shouldn’t have to learn about it here

Justice Goodwin Liu has written a(nother) long dissenting statement from the denial of a petition for review. He is critical of a First District, Division Two, Court of Appeal unpublished opinion concerning the natural and probable consequences doctrine as used to determine accomplice liability.  He says he would have granted review “[b]ecause this case would enable us to provide useful guidance to the trial courts, and because defendants present a strong argument that they were convicted of second degree murder on a theory unsupported by sufficient evidence.”

Dissenting statements from denials of review are getting to be a thing for Justice Liu.  He filed one five months ago, but that apparently was the first one by a California Supreme Court justice in almost 60 years.

So, where can you read the dissent?  You have to know where to look.  The dissent is on the Supreme Court’s docket in the case — People v. Cruz-Santos —  but not in an easy-to-read format.  It’s also available at the end of the Court of Appeal’s opinion that was re-posted to include the dissent.  At some point, it’s possible that the dissent will appear on Westlaw and Lexis.

The more important question is how do you find out in the first place that a justice has issued a dissenting statement?  That’s more difficult to answer.  Atypically, the denial of review did not happen at the court’s regular Wednesday conference and thus nothing about the dissent even appears on the court’s posted conference list, which itself is relatively obscure.  I found out about the dissent from fellow appellate lawyer and blogger Ben Shatz, who noticed an unusual “S” at the end of the case number on the webpage with links to unpublished Court of Appeal opinions.

If justices are going to write separate statements when the court denies review, those statements should not be buried as they are now.  Justice Liu’s earlier dissenting statement was in a high-profile case, so that denial of review attracted media attention in general.  A ruling on the petition for review in Cruz-Santos, however, was probably being watched for by nobody other than the parties to the case.

There should be a better way.  As we wrote when Justice Liu’s filed his first dissenting statement, separate statements concerning the denial of a petition tree-falls-in-the-forestfor review are important and deserve better.  They should be published in the official reports.  There should also be some notice that a separate statement has been issued.  Maybe something like a notice of forthcoming filing that the court posts the day before an opinion is issued, except the notice could be after the fact for a separate statement.  Also, the separate statement should be posted with other Supreme Court opinions and opinion modifications.

Justice Liu’s dissenting statement prompted Chief Justice Tani Cantil-Sakauye to issue a brief concurring statement, which also appears on the Supreme Court docket and at the end of the re-posted Court of Appeal opinion.  She “note[d] that reasonable minds may differ about the characterization of the record below” and added that “it is well established that this court’s denial of a petition for review is not an expression of the court’s opinion concerning the correctness of the underlying appellate decision, or its result, or of any law stated in that decision.”  Justices Kathryn Werdegar, Ming Chin, and Carol Corrigan concurred in the Chief Justice’s concurring statement.  Justice Leondra Kruger was absent and did not participate.  Justice Mariano-Florentino Cuéllar apparently did not concur in the Chief Justice’s or Justice Liu’s statement, and either simply did not vote to grant review or decided not to record a dissenting vote. Without an eagle eye like Ben Shatz’s, however, you probably wouldn’t know about any of this.

 

 

March 25, 2016

Summary of March 23, 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, March 23, 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

Great Oaks Water Company v. Santa Clara Valley Water District, S231846—Review Granted and Held—March 23, 2016

The Supreme Court granted review and deferred further action pending disposition of City of San Buenaventura v. United Water Conservation District, S226036, which raises the issues: (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26? (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?

The Court of Appeal, Sixth District, held in a published opinion, Great Oaks Water Company v. Santa Clara Valley Water District (2015) 242 Cal.App.4th 1187, that: (1) extraction fee was property-related charge generally subject to constitutional provision, but exempt from requirement of voter ratification; (2) extraction fee did not serve regulatory purpose; (3) district gave timely notice of hearing preceding imposition of proposed extraction fee; (4) pre-suit claim was insufficient to sustain monetary relief based on procedural defects or on theory that district charged disproportionate part of fee to non-agricultural users and charged retailer for services not used by or immediately available to it; but (5) pre-suit claim did not preclude monetary relief on theory that district had charged more than was required to provide property-related service on which fee was predicated; (6) rates adopted by district for extraction fee were not arbitrary, capricious, or unsupported by evidence in violation of water district act; and (7) district did not violate act by spending proceeds of extraction fee on activities outside scope of act, by commingling groundwater revenue with other monies, or by engaging in practices that resulted in a reserve fund.

Marina Coast Water District v. P.U.C., S230728—Review Granted and Held—March 23, 2016

The Supreme Court granted review in this original proceeding following a Public Utilities Commission decision.  It deferred further action pending disposition of Los Angeles County Board of Supervisors v. Superior Court, S226645, which raises the issue: are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act, even with all references to attorney opinions, advice and similar information redacted?

Review Denied (with dissenting justices)

None.

Depublished

None.

March 25, 2016

Arbitration, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in Baltazar v. Forever 21, Inc. and People v. Rangel.  Both cases were argued on the January calendar.

Baltazar raises the issue whether an employment arbitration agreement is unconscionable for lack of mutuality if it contains a clause providing that either party may seek provisional injunctive relief in the courts and the employer is more likely to seek such relief.  It is an un-hold case.  Review was originally granted three years ago, but briefing was deferred pending a decision in Wisdom v. Accentcare.  However, the court dismissed review in Wisdom after that case settled and the court then asked for briefing in Baltazar.

Rangel is an automatic appeal from a February 1999 judgment of death.

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

 

March 18, 2016

Summary of March 16, 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, March 16, 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

Heckart v. A-1 Self Storage, S232322 – Review Granted – March 16, 2016

This case presents the following issue: Was a self-storage facility’s storage rental agreement, which included provisions arguably meeting the definition of “insurance” (see Ins. Code, §§ 22, 1758.75), subject to regulation under the Insurance Code when the principal purpose of the agreement was the rental of storage space rather than the shifting and distribution of risk?

The Court of Appeal, Fourth District, Division One, held in a published decision, Heckart v. A-1 Self Storage, Inc. (2015) 243 Cal.App.4th 525, that: (1) the storage facility’s rental agreement was not an “insurance contract” subject to regulation under the Insurance Code, and (2) the agreement was not a contract for the “sale or lease of goods or services” within the meaning of the Consumers Legal Remedies Act.

United Riggers & Erectors v. Coast Iron & Steel Co., S231549 – Review Granted – March 16, 2016

The Court limited review to the following issue: May a contractor withhold retention payments when there is a good faith dispute of any kind between the contractor and a subcontractor, or only when the dispute relates to the retention itself?

The Court of Appeal, Second District, Division One, held in a published decision, United Riggers & Erectors, Inc. v. Coast Iron & Steel Co. (2015) 243 Cal.App.4th 151, that a contractor may withhold a retention payment only when the dispute with the subcontractor relates to the retention itself.

Review Denied (with dissenting justices)

None.

Depublished

None.

March 18, 2016

California Supreme Court Historical Society annual journal is out

The latest edition of “California Legal History,” the annual journal of the California Supreme Court Historical Society (disclosure:  I’m a Society board member) has been published.  Here is what’s inside:CSCHS_Page_001

 

  • Special Section:   Honoring Joseph R. Grodin
  • In Search of California’s Legal History:   A Bibliography of Sources
  • The Loeb Firm and the Origins of Entertainment Law Practice in Los Angeles, 1908-1940
  • Laura’s Law:    Concerns, Effectiveness and Implementation (Excerpt)
  • Inverse Condemnation:    California’s Widening Loophole (Excerpt)
  • Oral History:   Supreme Court Associate Justice Cruz Reynoso (1982-1987) (Excerpt)
  • Agrarian Lifeways and Judicial Transitions for Hispanic Families in Anglo California:   Sources for Legal History in the Autry National Center of the American West (Excerpt)
  • Student Symposium – Introduction:   Three Intersections of Federal and California Law
  • Student Symposium – The Death Penalty Debate:   Comparing the United States Supreme Court’s Interpretation of the Eighth Amendment to that of the California Supreme Court and a Prediction of the Supreme Court’s Ruling in Glossip v. Gross (Excerpt)
  • Student Symposium – Gender Equity in the Workplace:   A Comparative Look at Pregnancy Disability Leave Laws in California and the United States Supreme Court (Excerpt)
  • Student Symposium – Protecting Children:   The California Public School Vaccination Mandate Debate (Excerpt)
  • Book Reviews

 

 

March 17, 2016

Supreme Court orders Court of Appeal opinion republished and then cites the opinion

In today’s decision in Ardon v. City of Los Angeles, the Supreme Court considerably relies on a 2015 opinion by the First District, Division One, Court of Appeal.  But, that opinion was automatically depublished when the Supreme Court granted review in the case and rule 8.1115(a) prohibits the citation of unpublished opinions.  (That case became a grant-and-hold case, pending a decision in Ardon.)  No worries.  At the same time as it issued its Ardon opinion, the Supreme Court ordered the Court of Appeal opinion republished, which the Supreme Court is authorized to do.

If the court adopts a proposal to do away with the rule that a grant of review automatically depublishes the Court of Appeal’s opinion, the Supreme Court won’t need to order republished a review-granted opinion to be able to cite it.

March 17, 2016

Inadvertent Public Records Act disclosure does not waive privilege; impending settlement does not delay Supreme Court decision

In Ardon v. City of Los Angeles, the Supreme Court today holds that a governmental entity’s inadvertent release of privileged documents in response to a Public Records Act request does not waive attorney-client or work product privileges as to those documents.  The unanimous opinion by Justice Ming Chin (who also authored the court’s other opinion filed today) concludes “it is doubtful the Legislature intended to enact a statutory scheme that would prevent government agencies from minimizing the damage caused by the inadvertent disclosure of private and confidential information.”

The Ardon opinion includes an interesting practice point.  Settlements sometimes will and sometimes won’t stop the court from issuing an opinion in a case.  Ardon is one of the “won’ts.”  The court wasn’t told about an impending settlement until the plaintiff did so and also asked for a stay after the defendant had filed its opening brief on the merits.  The court denied the stay request and today notes that “[s]ettling the underlying lawsuit would not make this separate dispute moot.”

The opinion reverses the Court of Appeal, Second District, Division Six.

March 17, 2016

Supreme Court blocks end run around two-dismissals rule

In People v. Juarez, the Supreme Court today enforces a statute that generally bars a felony charge from being dismissed and refiled more than once.  The unanimous opinion by Justice Ming Chin holds that the People’s two dismissals of attempted murder charges against the defendants barred a subsequent prosecution for a different crime — conspiracy to commit murder — based on the same underlying facts.  The court concludes that, if the rule were otherwise, “[o]nly the prosecution’s creativity and the size of the Penal Code and penal provisions in other codes would limit the number of possible filings.”

The opinion reverses the Court of Appeal, Fourth District, Division Three, which had felt its “hands [were] tied” by a 2009 Supreme Court decision.  The Supreme Court today says that the Court of Appeal “read too much into” the prior opinion.

March 16, 2016

Opinions filing tomorrow about inadvertent disclosure of privileged documents, multiple criminal complaints

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

In Ardon v. City of Los Angeles, the court will address these questions:  (1) Does inadvertent disclosure of attorney work product and privileged documents in response to a Public Records Act request waive those privileges and protections?  (2) Should the attorney who received the documents be disqualified because she examined them and refused to return them?

People v. Juarez raises the issue whether Penal Code section 1387 requires dismissal of a criminal complaint if two prior complaints have been dismissed but the third complaint charges that the identical criminal act violates a different section of the Penal Code than had the two previous complaints.

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

March 13, 2016

The Judicial Council is not like Bruno Mars

Chief Justice Tani Cantil-Sakauye recently spoke with the Sacramento Bee editorial board.  A condensed version of the interview was published this weekend.

The wide-ranging discussion included the Chief Justice’s explanation why most Supreme Court opinions are unanimous, the disclosure that 25 percent of the court’s resources are spent on automatic death penalty appeals and related habeas corpus petitions, and her identification of emerging areas of the law (“whether arbitration is delaying the development of the law,” the Elder Abuse Act as a potential way around MICRA, and CEQA litigation concerning, “importantly, the emerging area of greenhouse emissions”).  The Chief Justice said, “We’re seeing a mix of science and humanity at the Supreme Court.”

When the interview turned to the impending live streaming of Supreme Court oral arguments and the Chief Justice mentioned that the Judicial Council already live streams its meetings, she was asked whether she knew how many people watch the Judicial Council proceedings.  She responded, “No.  (Laughs.)  We’re not like Bruno Mars, who gets 1.4 million hits.”

[Note:  why the semi-frivolous title for the post when the interview covered much more significant topics?  See Frankie Valli.]

March 11, 2016

Summary of March 9, 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, March 9, 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

Prometheus Real Estate Group v. Superior Court, S232576—Review granted and held—March 9, 2016.

Review granted and action deferred pending consideration and disposition of Williams v. Superior Court, S227228 (see Cal. Rules of Court, rule 8.512(d)(2)), which raises the following issues:   (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed? (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

After issuing a temporary stay of a discovery order and asking for preliminary opposition, the Court of Appeal, First District, Division Four, summarily denied the writ petition.

Lizardo v. Sandeen, S231980—Review granted and transferred—March 9, 2016.

The Court of Appeal, First District, Division Three, dismissed the appeal as untimely because the notice of appeal was filed “far more than 180 days after the . . . judgment.”  The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to reconsider its ruling in light of California Rules of Court, rule 8.25(b)(1) [“A document is deemed filed on the date the clerk receives it”] and Rapp v. Golden Eagle Ins. Co. (1994) 24 Cal.App.4th 1167, 1172.

Brown v. Superior Court, S232642— Order to Show Cause— March 9, 2015

This case concerns a controversial ballot proposition, Governor Brown’s major prison and parole initiative that would make certain nonviolent felons eligible for early parole.  The California District Attorneys Association sought and obtained a Superior Court order preventing the circulation of the initiative for voter signatures.

Governor Brown and other proponents of the measure submitted amendments to the measure, but the trial court ruled the amendments were not, as required by Elections Code section 9002, “reasonably germane to the theme, purpose, or subject of the initiative measure as originally proposed.”

The Governor sought emergency writ relief.  The Supreme Court has now issued an order to show cause directing the California District Attorneys Association and Anne Marie Schubert as real parties in interest to show cause why the relief prayed for in the petition for writ of mandate should not be granted.

Review Denied (with dissenting justices)

Sturgeon v. County of Los Angeles, S231977—Review denied [Werdegar, J. voting for review]—March 9, 2016.

Petitioner  brought action against the county for declaratory judgment challenging the county’s compliance with the constitutional requirement that the Legislature prescribe compensation for judges.

The Court of Appeal, Fourth District, Division Three, held in a published decision, Sturgeon v. County of Los Angeles (2015) 242 Cal.App.4th 1437, that (1) legislation generally requiring counties to continue paying supplemental judicial benefits provides for a status quo that may go on indefinitely without offending the state constitution, but (2) the part of the statute providing that a “county is also authorized to elect to provide benefits for all judges in the county” is unconstitutional surplusage.

Depublished

None.