March 25, 2017

Chief Justice criticizes courthouse immigration enforcement, president’s disparagement of federal judges

A week after sending a letter accusing federal agents of “stalking” undocumented immigrants in California’s courthouses, Chief Justice Tani Cantil-Sakauye continued her criticism in an interview with KQED by comparing that conduct to what she saw as a trial judge in domestic violence court.  “I understand what stalking means and the fear that it instills in the victim,” the Chief Justice said.  She explained that the “enforcement tactics in the courthouses have a detrimental effect on safety in the communities,” by inhibiting people from cooperating with law enforcement efforts.

Cantil-Sakauye also had harsh words for the president’s disparaging comments about federal judges, calling the attacks “very threatening to the third branch of government.”

In the interview, the Chief Justice touched briefly on the “tremendous impact” that changes in the court’s composition have had over the last few years, and will continue to have as Justice Kathryn Werdegar prepares to leave the court.  Further, she discussed the “improving” diversity in the state’s courts, praising Governor Brown for being “very proactive in diversifying the judicial branch.”

March 24, 2017

Another Prop. 47 opinion, and one about advising criminal defendants of a plea’s immigration consequences, are filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Romanowski and People v. Patterson, which were both argued on the January calendar.

Romanowski will be the court’s second Proposition 47 opinion in four days, after yesterday’s decision that cashing a stolen check is “shoplifting.”  The Monday decision will determine whether Proposition 47, which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), applies to theft of access card information in violation of Penal Code section 484e, subdivision (d).

In Patterson, the court will decide whether defendant was entitled to withdraw his plea (Pen. Code, § 1018) because his trial counsel assertedly provided constitutionally inadequate assistance of counsel during plea negotiations by failing to investigate and advise defendant of the immigration consequences of his plea.

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

March 23, 2017

Divided Supreme Court rules cashing a stolen check is “shoplifting” under Prop. 47, allowing for misdemeanor resentencing

In People v. Gonzales, the Supreme Court today holds that, under the four-year-old Proposition 47, entering a bank to cash a stolen check under $950 is now called “shoplifting,” not theft by false pretenses.  The nomenclature is important because the change makes the defendant in the case eligible for a sentence reduction.  The court’s 5-2 opinion by Justice Carol Corrigan concludes that “shoplifting” no longer means just taking goods from a store.  Instead, Proposition 47 “creates a term of art, which must be understood as it is defined, not in its colloquial sense.”

Justice Ming Chin — joined by Justice Goodwin Liu — dissents.  He claims that the majority’s statutory interpretation cannot be what the electorate intended, because it modifies the term “shoplifting” “from its commonly understood meaning and expand[s] it beyond all recognition.”

Both the majority and dissenting opinions cite to published Court of Appeal opinions in which the Supreme Court granted review after last July 1.  Under a new publication rule, there’s nothing wrong with that.

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

March 23, 2017

Bankrupt beneficiary of spendthrift trust has only limited protection for his interest in the trust

In Carmack v. Reynolds, a case involving a bankruptcy trustee’s attempt to access funds in a spendthrift trust, the Supreme Court today answers a state law question posed by the Ninth Circuit.  The court’s unanimous opinion by Justice Goodwin Liu agrees with the federal court that “the relevant [California] statutory provisions are ‘opaque,'” and concludes that one of the statutes at issue likely “reflects a drafting error.”

The court holds, “With limited exceptions for distributions explicitly intended or actually required for the beneficiary’s support, a general creditor may reach a sum up to the full amount of any distributions that are currently due and payable to the beneficiary even though they are still in the [spendthrift trust] trustee’s hands, and separately may reach a sum up to 25 percent of any payments that are anticipated to be made to the beneficiary.”  Also, for most of those who do not practice in the field or who have not been in law school within the past year, the court explains, “A spendthrift trust is a trust that provides that the beneficiary’s interest cannot be alienated before it is distributed to the beneficiary.”

March 22, 2017

Supreme Court agrees to answer Ninth Circuit’s choice-of-law questions

Tomorrow, the Supreme Court will answer one Ninth Circuit question.  Today, it agreed to answer another one.  In Pitzer College v. Indian Harbor Insurance Company, the court granted the Ninth Circuit’s request to decide choice-of-law issues that arise in an insurance coverage case.

The court restated the California law issues this way:  (1) Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis?  (2) If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can the notice-prejudice rule apply to the consent provision in this case?

March 22, 2017

Spendthrift trust, Prop. 47 opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in Carmack v. Reynolds and People v. Gonzales, which were both argued on the January calendar.

At the Ninth Circuit’s request, the court will decide in Carmack whether Probate Code section 15306.5 imposes an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or whether the bankruptcy estate may reach more than 25 percent under other sections of the Probate Code.  When it asked for an answer to the question, the Ninth Circuit said that resolution of the appeal before it “could transform the terrain of California trust law” and that the appeal “hinges on the interpretation of opaque sections of the Probate Code.”

Gonzales is one of the many Proposition 47 cases that is or was on the court’s docket.  (It’s one of two that were argued in January.)  The issue is:  Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?

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

March 20, 2017

Divided Supreme Court finds “serious constitutional error” to be harmless

In People v. Merritt, the Supreme Court today affirms a robbery conviction even though the trial court did not instruct the jury on the elements of robbery.  The court’s opinion by Justice Ming Chin — for himself and four other justices — states that “[t]he failure to instruct on the elements of a charged crime is serious constitutional error that impacts a defendant’s fundamental right to a jury trial” and that it is the “kind of error [that] should never occur,” but holds the error was harmless in the case before it.  (The defendant in the case conceded a robbery had taken place, but denied he was the robber.)  The court concludes that one of its 1993 opinions, which had ruled that this type of instructional error is reversible per se, was made “obsolete” by a subsequent U.S. Supreme Court decision.

There are two separate opinions.  Justice Goodwin Liu concurs, stating that “some form of harmless error review is appropriate,” but that “such review is more circumscribed . . . than [the court’s] opinion suggests.”  Justice Mariano-Florentino Cuéllar dissents, contending that, “[w]hen a jury’s deliberation is in no way structured by the facts that the Legislature singled out as necessary for a conviction, jurors might as well have been asked nothing more than, ‘do you think the defendant is guilty of anything?'”  The majority finds “the dissent’s rhetoric” to be unconvincing.

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

March 20, 2017

Supreme Court upholds sex offender probation conditions

Noting that “[h]ow to manage and supervise [registered sex] offenders is one of the most difficult challenges facing government policymakers today,” the Supreme Court today upholds parts of 2010 legislation that imposes conditions the offenders must accept as prerequisites to probation.  Under that law, mandatory treatment for a sex offender includes requiring the offender to waive “any” self-incrimination privilege and psychotherapist-patient privilege, and also to participate in polygraph examinations.

The court’s opinion — in People v. Garcia — by Justice Mariano-Florentino Cuéllar explains that “any” should not be interpreted literally regarding the self-incrimination-privilege-waiver condition, so as not to run afoul of the Fifth Amendment.  The court concludes, in an anti-textualist approach to statutory construction, “The condition is properly read . . . to require that probationers answer all questions . . . fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding.”

Although signing the court’s opinion, Justice Leondra Kruger writes a concurring opinion to “elaborate” why the condition requiring a waiver of any privilege against self-incrimination should not include an “anticipator[y] waive[r]” by offenders of the “right to object if the state later uses their answers against them in criminal proceedings.”  Justice Goodwin Liu signs only Justice Kruger’s concurrence, not the court’s opinion.

The court affirms the Sixth District Court of Appeal.

March 20, 2017

Supreme Court mostly unanimous in affirming death sentence

The Supreme Court today affirms the death sentence in People v. Brooks.  The court’s 143-page opinion is by Chief Justice Tani Cantil-Sakauye, for herself and five other justices.  Justice Goodwin Liu writes a separate concurring and dissenting opinion.  Among many other holdings, the court finds instructional errors and also two instances of jury misconduct — one occurred during the penalty phase, when the jurors asked “to hear from” the defendant — but nothing that requires reversal.

Like the majority, Justice Liu would not reverse the death sentence, but he disagrees with the court that there was sufficient evidence to support one of two special circumstance findings — the one for kidnapping-murder.  Justice Liu recognizes that although winning a substantial evidence argument on appeal is difficult, he says that “[t]he sufficiency standard is deferential but not toothless.”

March 19, 2017

Two votes for review in case involving mom’s murder of children

In People v. McCarrick, the First District, Division Four, Court of Appeal affirmed the life-without-parole judgment against a mom who murdered her twin three-year-old daughters with a sword.  The appeal concerned jury instructions given during the sanity phase of the trial.

Last week, the Supreme Court denied the defendant’s petition for review.  Justices Kathryn Werdegar and Mariano-Florentino Cuéllar recorded votes to grant review, however.

Record votes are worth noting, because dissents from denials of review are not always known outside the court; a justice must affirmatively request that his or her dissent be publicly recorded.  (Separate statements that explain those dissents are especially rare.)   That’s why our weekly conference reports keep track of record votes in civil cases.

March 17, 2017

Summary of March 15, 2017 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 15, 2017. 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

Elliott Homes, Inc. v. Superior Court, S239804 – Review Granted and Held – March 15, 2017

Plaintiffs and real parties in interest filed an action against the builder of their homes, seeking damages for construction defects.  The builder moved to stay proceedings until real parties in interest complied with the prelitigation procedure set forth in what is commonly referred to as “SB 800” or the “Right to Repair Act,” Civil Code sections 895 through 945.5. Real parties in interest opposed the motion, arguing the prelitigation procedure did not apply because they had not alleged a statutory violation of the Act.  The trial court denied the stay. In a published opinion, Elliott Homes, Inc. v. Superior Court (2016)  6 Cal.App.5th 333, the Third District Court of Appeal granted the builder’s petition for writ of mandate, ordering the trial court to vacate its order and enter a new order granting the stay.

Following a depublication request, the Supreme Court ordered review on its own motion and deferred briefing pending its decision in McMillin Albany LLC v. Superior Court, S229762, which presents the following issue: Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?  (Full disclosure: Horvitz & Levy LLP has filed an amicus curiae brief in McMillin Albany.)

Review Denied (with dissenting justices)

None.

Depublished

None.

March 17, 2017

Three criminal case opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Merritt, People v. Brooks, and People v. Garcia.  All three were argued on the January calendar.

In Merritt, the issue is:  Is the failure to instruct the jury on the elements of a charged offense reversible per se or subject to harmless error review?  (See Neder v. United States (1999) 527 U.S. 1; People v. Mil (2012) 53 Cal.4th 400; People v. Cummings (1993) 4 Cal.4th 1233.)

Garcia raises the issue whether the conditions of probation mandated by Penal Code section 1203.067, subdivision (b), for persons convicted of specified felony sex offenses – including waiver of the privilege against self-incrimination, required participation in polygraph examinations, and waiver of the psychotherapist-patient privilege – are constitutional.

Brooks is an automatic direct appeal from a July 2001 judgment of death.

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

March 17, 2017

A new sua sponte grant of review

The Supreme Court this week granted review in a case on its own motion, something it does occasionally.  This one isn’t as big a deal as the last two (here and here), however.  In those, it appears that nobody brought the cases to the court’s attention, and the court ordered a straight grant, meaning it ordered briefing, held (or will hold) an oral argument, and issued (or will issue) an opinion.  In the new case, Elliott Homes, Inc. v. Superior Court, although there was no petition for review, a non-party filed a request to depublish the Court of Appeal opinion and the Supreme Court issued a grant-and-hold order, so there likely will be no briefing, oral argument, or opinion.

The Elliott Homes case is on hold for McMillin Albany, LLC v. Superior Court, which raises the issue, “Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?”  [Disclosure:  Horvitz & Levy has filed an amicus curiae brief in McMillin Albany.]

March 16, 2017

Chief Justice to feds: stop using courthouses as ICE “bait”

In a strongly worded letter to the United States Attorney General and the Secretary of Homeland Security, Chief Justice Tani Cantil-Sakauye — speaking in her role as head of California’s judiciary — expressed deep concern about reports that federal immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”  The “vast majority” of those immigrants “pose no risk to public safety” and the courthouse arrest policies “are neither safe nor fair,” the Chief Justice said.  Rather, she said, those policies “not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice.”

According to the Chief Justice, the new courthouse stalking policies interfere with trial courts’ ability “to mitigate fear to ensure fairness and protect legal rights” for “millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives,” including “[c]rime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families.”

Stating that “[c]ourthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” the Chief Justice concluded by asking the Attorney General and Secretary to “refrain from this sort of enforcement in California’s courthouses.”

March 15, 2017

Ninth Circuit sends The Turtles to the Supreme Court [Updated]

As it suggested at a December oral argument that it might do, the Ninth Circuit today asks for the Supreme Court’s help in answering questions of state copyright law in a lawsuit brought by the band The Turtles.  In Flo & Eddie, Inc. v. Pandora Media, Inc., the federal appeals court requests that the Supreme Court decide:  “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance?  2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?”

Flo & Eddie, Inc. (i.e., The Turtles), have been pursuing similar litigation around the country.  (See, e.g., here [subscription] and here.)  In two of those cases, the Eleventh Circuit has certified to the Florida Supreme Court and the New York Court of Appeals answered for the Second Circuit questions of state copyright law that are related to those the Ninth Circuit is now asking of California’s high court.  Noting these similar cases, the Ninth Circuit states, “We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California.  As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions.”

The Supreme Court should decide by mid-May — give or take — whether it will answer the Ninth Circuit’s question.  Usually, the Supreme Court, as a matter of comity, will grant those requests in order to keep the two courts happy together.

[March 17 update:  The Supreme Court docketed the Ninth Circuit’s request yesterday.]

March 14, 2017

Unusual un-hold and re-hold orders

There are many grant-and-hold cases on the Supreme Court’s docket, particularly in criminal matters since a 2015 change in internal court procedure.  Most of these cases are disposed of summarily, in light of a decision in another Supreme Court case.  Occasionally, however, the court will un-hold a grant-and-hold, and order briefing, hear oral argument, and issue an opinion.  (E.g., here and here.)

The court un-held another case last month.  But, uncommonly, the briefing order in that case — People v. Guerrero — came only one week after the grant of review.  It’s possible the court, running up against a deadline to act on the petition for review, wanted to grant review but needed a little extra time to determine what issue it would decide.

More unusual was a hold order issued last week in People v. Enriquez.  First, it was actually a re-hold order, because the case originally was a grant-and-hold and had been un-held in November 2015.  Second, the re-hold order came just before the case was to be argued on the March calendar.  Unique circumstances led to this procedure.  Enriquez was one of three consolidated cases.  Five days before the argument, the court was informed that Enriquez’s counsel had “suffered an injury that will interfere with her ability to present oral argument as scheduled.”  Counsel for a defendant in one of the other consolidated cases stepped up and agreed to argue the matter instead.  Enriquez’s counsel asked that the argument be continued, but, although her injury is probably sufficient cause for a continuance, the court instead severed Enriquez from the other two cases, re-docketed Enriquez under a separate case number, heard argument in the still-consolidated two other cases, and ordered Enriquez held pending a decision in the two cases.  The court probably doesn’t expect to see something like that happen again.

March 13, 2017

“As Justice Kathryn Werdegar prepares to retire, Brown will soon have a Democratic majority on state’s top court”

Maura Dolan reports on the front page of this morning’s Los Angeles Times:  Justice Werdegar “is viewed as the most moderate of the Republican appointees, a cerebral judge who in recent years was as likely to vote with the liberals as with the conservatives.  When she first joined the court, colleagues described her as a conservative, a label that turned out to be not quite right.  Although legally conservative — she tries not to expand the law beyond what is necessary to decide a dispute — she has been a force for civil rights on the court.”

March 12, 2017

One vote short of a Ninth Circuit ask

Occasionally, three justices will want to grant a petition for review, but cannot garner the fourth vote to hear the case.  Here’s a variation on that theme:  recently, one Ninth Circuit judge (actually, a Fourth Circuit judge sitting by designation) wanted to refer a state law question to the Supreme Court for decision under rule 8.548 of the California Rules of Court, but he couldn’t get either of his two colleagues to go along with the ask.  The case is Archer Western Contractors v. National Union Fire Ins. Co. of Pennsylvania and the issue was one of insurance law.

The Ninth Circuit’s requests for Supreme Court help are often in insurance cases (see, e.g., here, here, and here), but this one a majority of the Ninth Circuit panel felt comfortable handling themselves.

March 9, 2017

Justice Kathryn Werdegar retiring after nearly 23-year Supreme Court career

Saying that “it has been a great privilege and honor to serve the people of California,” Justice Kathryn Werdegar announced that she is ending her nearly 23-year career as a Supreme Court justice.  (See reports in the Los Angeles Times, Sacramento Bee, San Francisco Chronicle, Daily Journal [subscription], and The Recorder [subscription].)  In a statement released yesterday afternoon, Justice Werdegar said, “I have had the privilege of serving with three outstanding Chief Justices and many wonderful colleagues, and the opportunity to address some of the state’s most challenging issues.”  Her retirement will be effective August 31.

The last of the Chief Justices with whom Justice Werdegar served — current Chief Justice Tani Cantil-Sakauye — praised the retiring jurist as “a respected jurist and a valued colleague.”  Former Chief Justice Ronald George singled out “her meticulous work in crafting the opinions that she authored for the court and those that she wrote separately, as well as the contributions that she made to the work of her fellow justices.”

Justice Werdegar has served the longest of all the current Supreme Court justices.  However, her tenure on the court is less than half of her 55-year career in public service.  In addition to her high court service, Justice Werdegar was on the Court of Appeal, a senior staff attorney to Supreme Court Justice Edward Panelli (whom she would eventually replace on the court), a Court of Appeal staff attorney, a dean and professor at University of San Francisco School of Law, and an attorney in the Civil Rights Division of the U.S. Department of Justice.  Although she finished her studies at George Washington University, she was first in her class at the University of California School of Law (Boalt Hall) and was the first woman to be elected editor-in-chief of the California Law Review.

Justice Werdegar won reelection to a new 12-year term in 2014.  The governor’s appointment to succeed her, if confirmed by the Commission on Judicial Appointments and by the voters in 2018 (assuming the appointment is confirmed before the middle of August 2018), will inherit the remainder of that term.

March 9, 2017

Supreme Court upholds presumptive right to complete free transcript, but holds violation of the right can be harmless

In People v. Reese, which was argued on the January calendar, the Supreme Court today holds that the constitutional right that an indigent criminal defendant — facing a retrial after a mistrial — presumptively has to a free transcript of trial court proceedings includes a transcript not only of testimony, but also of opening statements and closing arguments.  A divided Court of Appeal, finding persuasive the dissent in a divided 2004 Ninth Circuit opinion in a habeas corpus proceeding, found the defendant had to make a showing of why he needed a transcript of more than testimony.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar disagrees, concluding instead it is the prosecution that has the burden of rebutting the presumption that a full transcript is necessary for the defense on retrial.  The court says that “[i]t is simply inconsistent with the purpose of [equal protection guarantees] to distinguish between transcripts of witness testimony and transcripts of counsel’s statements — both of which a wealthy defendant is certain to purchase — when determining whether [the] presumption applies.”

Although the total denial of a transcript requires an automatic reversal, the court today holds that, “when the denial of the right to a previous trial transcript is less than total, appellate courts will often have little difficulty conducting harmless error review.”  And the court finds the denial to be harmless in the case before it today, therefore affirming the judgment of the Second District, Division Eight, Court of Appeal.

March 7, 2017

No conference held the week of March 6, 2017

The Court will hold no conference this week because it will hear oral argument in San Francisco. Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

March 6, 2017

Minor’s suit against school district tossed for noncompliance with Claims Act

In J.M. v. Huntington Beach Union High School District, the Supreme Court today holds that a lawsuit for a student’s injuries in a football game and at a later practice is barred for failing to comply with the Government Claims Act.  The court’s opinion by Justice Carol Corrigan concludes that the student was required to timely obtain relief in court after his application to his school district to file a late claim was not acted on and was thus denied by operation of law, even though it was an application the district was obligated to grant.  The court says that the student had “a clear avenue to challenge the denial of his application,” but that “[h]is counsel simply failed to take advantage of it.”

The opinion is signed by all the justices, but Justice Goodwin Liu writes a concurrence, which is joined by Justices Mariano-Florentino Cuéllar and Leondra Kruger.  The separate opinion points out “an apparent anomaly that the Legislature may wish to address.”  A footnote in the court’s opinion recognizes the same anomaly, although it doesn’t label it as such, and notes that “[t]he Legislature remains free” to consider a statutory amendment.  A Liu separate opinion has influenced legislation before.

The court affirms the Fourth District, Division Three, Court of Appeal.  It disapproves a 2011 opinion by the Second District, Division Three.

March 3, 2017

Nine arguments on the April calendar in Los Angeles [Updated]

The Supreme Court announced its April calendar.  There will be 9 arguments in 10 cases (two cases are consolidated).

On April 4 and 5, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Superior Court (Sahlolbei):  If an individual performing work for and on behalf of a public entity would qualify as an independent contractor for purposes of tort liability at common law, can that individual be subject to the criminal conflict-of-interest provisions of Government Code section 1090?

Jacks v. City of Santa Barbara:  Is the City of Santa Barbara’s 1 percent increase on its electricity bills (i.e., the 1 percent surcharge) a tax subject to Proposition 218’s voter approval requirement or a franchise fee that may be imposed by the City without voter consent?

People v. Chaney and People v. Valencia:  Does the definition of “unreasonable risk of danger to public safety” (Pen. Code, § 1170.18, subd. (c)) under Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply retroactively to resentencing under the Three Strikes Reform Act of 2012 (Pen. Code, § 1170.126)?

Ryan v. Rosenfeld:  Is the denial of a motion to vacate the judgment under Code of Civil Procedure section 663 separately appealable?

Parrish v. Latham & Watkins:  (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith?  (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6?

926 North Ardmore Avenue v. County of Los Angeles:  Does Revenue and Taxation Code section 11911 authorize a county to impose a documentary transfer tax based on a change in ownership or control of a legal entity that directly or indirectly holds title to real property?

In re Bell:  In this case, which is related to the automatic appeal in People v. Bell (2007) 40 Cal.4th 582, the court issued an order to show cause why petitioner is not entitled to relief on the ground of juror misconduct.

K.R. v. Superior Court:  Was the juvenile entitled to a disposition hearing before the same judge who accepted his admissions to a criminal offense and probation violations even though he did not make an affirmative showing of individualized facts in the record establishing that this was an implied term of the plea agreement?  (See People v. Arbuckle (1978) 22 Cal.3d 749.)

People v. Hopson:  Was defendant’s right of confrontation under the Sixth Amendment violated when the trial court permitted the prosecution to introduce out-of-court statements made by her deceased codefendant?

[March 15 update:  The court today continued the Parrish argument to the June calendar.  We’re not sure why the argument was continued, but the docket reflects that the court found without good cause plaintiff’s counsel’s apparently timely request to not schedule argument in April and that defendant’s counsel yesterday filed a request to continue oral argument.  We don’t know what was in either counsel’s letter.

In addition to the continuance, the court added a new case to take Parrish‘s place on the April calendar:

Scher v. Burke:  Does Civil Code section 1009 preclude non-recreational use of non-coastal private property from ripening into an implied dedication of a public road?]

March 3, 2017

Summary of March 1, 2017, 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 1, 2017.  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

Wilson v. Cable News Network, Inc., S239686 – Review Granted and Held – March 1, 2017

In a 2-1 published opinion, Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th 822, the Court of Appeal, Second District, Division One, reversed a judgment after the granting of an anti-SLAPP motion against a former CNN producer, who alleged race and age discrimination, retaliation, wrongful termination, and defamation.  The court majority held that the defendant’s alleged conduct was outside the scope of the anti-SLAPP statute, stating, “This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights.”  The dissenting justice, on the other hand, concluded, “a news organization’s employment decisions concerning a person, like Wilson, who has an undisputedly central role on the content of the news concerns an act in furtherance of the organization’s First Amendment rights and made in connection with issues of public interest.”

The Supreme Court ordered briefing deferred pending decision in Park v. Board of Trustees of California State University, S229728, which was argued last month and presents the following issue:  Does Code of Civil Procedure section 425.16 authorize a court to strike a cause of action in which the plaintiff challenges only the validity of an action taken by a public entity in an “official proceeding authorized by law” (subd. (e)) but does not seek relief against any participant in that proceeding based on his or her protected communications?

Review Denied (with dissenting justices)

None.

Depublished

None.

March 3, 2017

Government Claims Act opinion filing Monday

As expected, the Supreme Court will file on Monday morning its opinion in J.M. v. Huntington Beach Union High School District, which was argued on the December calendar.

The case raises the issue whether a claimant under the Government Claims Act must file a petition for relief from Government Code section 945.4’s claim requirement, as set forth in Government Code section 946.6, if he has submitted a timely application for leave to present a late claim under Government Code section 911.6, subdivision (b)(2), and was a minor at all relevant times.

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

March 2, 2017

In holding public employees’ communications on private accounts are subject to disclosure, does Supreme Court offer commentary about presidential tweets?

Recognizing that, “in today’s environment, not all employment-related activity occurs during a conventional workday, or in an employer-maintained workplace,” the Supreme Court in City of San Jose v. Superior Court today holds that “when a city employee uses a personal account to communicate about the conduct of public business, the writings may be subject to disclosure under the California Public Records Act.”  Otherwise, the court says, “government officials could hide their most sensitive, and potentially damning, discussions in [personal] accounts.”  The court’s unanimous opinion by Justice Carol Corrigan potentially exposes to public view certain redevelopment-related emails and text messages on private electronic devices by San Jose’s mayor, two city council members, and their staffs.

The case raises an interesting question of statutory interpretation.  As the opinion states, the issue “concerns how laws, originally designed to cover paper documents, apply to evolving methods of electronic communication.”tweet

In describing that evolution, the court observes, “the ease and immediacy of electronic communication has encouraged a commonplace tendency to share fleeting thoughts and random bits of information, with varying degrees of import, often to broad audiences.”  Whether it was intended or not, that comment is descriptive of communications by executive officeholders other than the mayor of San Jose.

The court reverses the Sixth District Court of Appeal, rejecting the lower court’s reliance on a presumption that “public officials conduct official business in the public’s best interest.”

March 2, 2017

Supreme Court reduces prejudgment interest on wrongfully calculated disability retirement benefits

In Flethez v. San Bernardino County Employees Retirement Association, the Supreme Court today cuts back on the amount of prejudgment interest owed when the start date for a county employee’s disability retirement benefits is wrongfully determined.  The interest runs from the time the employee is wrongfully denied retroactive benefits, not from the date on which those benefits should have started.   The decision will apparently cost a former San Bernardino County equipment operator around 8 years worth of interest, over $130,000.

The court’s opinion, by Chief Justice Tani Cantil-Sakauye, is unanimous, but Justice Mariano-Florentino Cuéllar writes a brief concurring opinion, which Justices Kathryn Werdegar and Goodwin Liu join.  The concurrence states the court should have stated a rule for determining when a wrongful denial of retroactive benefits occurs.

The court affirms the Fourth District, Division One, Court of Appeal.  It also disapproves a 1989 decision of the Second District, Division Three.

March 1, 2017

“Convicted killer Daniel Covarrubias will not be retried to get death sentence”

The Monterey Herald reports on the aftermath of the Supreme Court’s September unanimous reversal of the death penalty, but not the conviction, in People v. Covarrubias.

March 1, 2017

Opinions filing tomorrow about public officials’ emails, prejudgment interest; two more opinions probably coming Monday [Updated]

Tomorrow morning, the Supreme Court will file its opinions in City of San Jose v. Superior Court, which was argued on the December calendar, and Flethez v. San Bernardino County Employees Retirement Association, which was heard in January.

City of San Jose is a high-profile case, having attracted briefs from numerous amici curiae, including news organizations, the ACLU, and public employee associations.  The case raises this issue:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?

In Flethez, the court will decide whether, if a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, prejudgment interest under Code of Civil Procedure section 3287 is calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits.

Once the City of San Jose opinion issues, there will be two one undecided cases from the December calendar for which this Monday will be the last regular opinion-filing day within the 90-day deadlinePeople v. Sivongxxay, a death penalty appeal, and J.M. v. Huntington Beach Union High School District, concerning procedural issues under the Government Claims Act.  The opinion in the one other undecided December case — McGill v. Citibank, N.A. — is not due until mid-May because, after the argument, the court vacated submission and ordered supplemental briefing; the 90-day clock did not re-start until two weeks ago when the last additional brief was filed.

The San Jose and Flethez opinions can be viewed starting at 10:00 a.m.

[March 2 update:  The Sivongxxay opinion will not file Monday.  Yesterday, as it had done in McGill, the court vacated submission and ordered supplemental briefing.  The briefs are to discuss “whether any state-law error as to a special circumstance jury waiver (see People v. Memro (1985) 38 Cal.3d 658, 700-704) may be found harmless based on an evaluation of the likelihood that, absent the error, defendant would have chosen not to waive a jury trial as to the special circumstance allegation.  (Cf. People v. Blackburn (2015) 61 Cal.4th 1113, 1130-1137; People v. Tran (2015) 61 Cal.4th 1160, 1168-1170; People v. Martinez (2013) 57 Cal.4th 555; People v. Superior Court (Zamudio) (2000) 23 Cal.4th 183; People v. Sanchez (1995) 12 Cal.4th 1, 30-31; People v. McClellan (1993) 6 Cal.4th 367; In re Alvernaz (1992) 2 Cal.4th 924; U.S. v. Williams (7th Cir. 2009) 559 F.3d 607, 610-616; Fortune v. U.S. (D.C. 2013) 59 A.3d 949, 955-957; State v. Little (Minn. 2014) 851 N.W.2d 878, 883-886; State v. Williams (Or.Ct.App. 2005) 104 P.3d 1151, 1153; see 6 RT 903-905.)”  Briefing is to be completed within 3 weeks, at which time the case will be re-submitted and the 90-day clock will re-start, making an opinion due around the middle of June.]

February 27, 2017

Supreme Court clears way for lumber company challenge to salmon protections

In Central Coast Forest Association v. Fish and Game Commission, the Supreme Court today holds that a lumber company can proceed with its challenge to the Fish and Game Commission’s decision to not remove coho salmon south of San Francisco from the state’s endangered species list.  The court’s unanimous opinion by Justice Ming Chin is procedural only.  It reverses a 2-1 decision by the Third District Court of Appeal, which had held that a petition to “delist” a species could not be used to challenge an “original listing” decision.

Not only are the justices in agreement about the result, so are the parties.  As the court reports, “Notably, the Commission agrees with plaintiffs that the Court of Appeal erred, and that a delisting petition may, based on new evidence, challenge an earlier listing decision.”  The opinion remands the case for the Court of Appeal to address in the first instance the substantive issues about which the parties do not agree.

February 27, 2017

Death sentence affirmed for prison murders

The Supreme Court today affirms the death penalty judgment in People v. Delgado for the 1998 and 1999 murders by the defendant of two fellow inmates at Corcoran State Prison.  The court’s unanimous opinion by Justice Carol Corrigan, as is typical in many automatic direct death penalty appeals, rejects numerous arguments.  Regarding the issue that is given the most attention, the court finds no error in the trial court’s having ordered — with defense counsel’s consent — two correctional officers to be present during consultations between defendant and his attorney.

February 24, 2017

Endangered species, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Central Coast Forest Association v. California Fish and Game Commission and People v. Delgado, which were both argued on the December calendar.

The Central Coast case has been around awhile; review was granted four years ago.  The court limited review to these issues — Under the California Endangered Species Act, Fish and Game Code section 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error?  If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?

Delgado is an automatic appeal from a June 2000 judgment of death.

The Central Coast and Delgado opinions can be viewed Monday starting at 10:00 a.m.

 

 

 

February 23, 2017

Declaration of undisclosed expert inadmissible to oppose summary judgment

In Perry v. Bakewell Hawthorne, LLC, the Supreme Court today holds that a failure to timely comply with requirements for the exchange of expert witness information can hurt a party not only at trial but also in summary judgment proceedings.  The court’s unanimous opinion by Justice Carol Corrigan reasons that, because only “admissible evidence” can be considered on a summary judgment motion and because not responding to a demand for expert witness information makes an expert opinion inadmissible, “A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial.”  A failure to comply is not necessarily irremediable, however.  The court advises that relief should be sought from a blown expert exchange deadline “as soon as the party discovers the need to submit a declaration by a previously undisclosed expert.”

The court affirms the Second District, Division Two, Court of Appeal.  In doing so, it overrules one its own 1985 decisions and it disapproves a 1990 Fifth District opinion.  The court notes that the earlier opinions, in addition to being erroneously reasoned, “reflect the more restrictive approach to summary judgment prevailing when they were decided” and that summary judgment “is now seen as ‘a particularly suitable means to test the sufficiency’ of the plaintiff’s or defendant’s case.”

Horvitz & Levy filed an amicus curiae brief, and presented oral argument, in Perry on behalf of the Association of Southern California Defense Counsel.  The court’s opinion cites the brief.

 

February 22, 2017

Opinion about expert witness exchange filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Perry v. Bakewell Hawthorne, LLC, which was argued on the January calendar.  This will be the first opinion in a case argued in 2017.

Perry will decide whether 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, applies to a motion for summary judgment.  [Disclosure:  Horvitz & Levy filed an amicus curiae brief, and presented oral argument, on behalf of the Association of Southern California Defense Counsel.]

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

February 17, 2017

Summary of February 15, 2017 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, February 15, 2017. 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

Goonewardene v. ADP, LLC, S238941 – Review Granted – February 15, 2017

This case presents the following question:  Does an aggrieved employee in a lawsuit based on unpaid overtime have viable claims against the outside vendor that performed payroll services under a contract with the employer?

In a published opinion, Goonewardene v. ADP, LLC (2016) 5 Cal.App.5th 154, the Court of Appeal, Second District, Division Four, reversed the trial court’s dismissal of the plaintiff employee’s claims against an outside payroll services vendor related to alleged violations of labor laws and inadequate compensation.  The court reversed because the trial court denied the plaintiff leave to file an amended complaint asserting claims for breach of contract, negligent misrepresentation, and negligence against the vendor.

Review Denied (with dissenting justices)

None.

Depublished

None.

February 16, 2017

Supreme Court allows preserving evidence during pending death penalty appeal, expresses no opinion about the effect of Prop. 66

In People v. Superior Court (Morales), the Supreme Court today holds that a superior court has jurisdiction to order preserved evidence relating to a death penalty case in which there is an automatic direct appeal pending in the Supreme Court, even though the evidence is potentially relevant only to a future habeas corpus petition for which counsel has yet to be appointed.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes that courts “have the inherent power . . . [to] entertain[ ] motions for the preservation of evidence that will ultimately be subject to discovery . . . when the movant is appointed habeas corpus counsel.”

The court reverses the Fourth District, Division Two, Court of Appeal.  In finding no jurisdiction to order evidence preserved, the Court of Appeal had believed its hands were tied by a 1990 Supreme Court decision and one justice said at oral argument that it was up to the high court to “clean[ ] up their own mess.”  The Supreme Court today concludes, however, that “the Legislature has partially abrogated” the rule from the 1990 case and that the Court of Appeal “failed to give sufficient consideration” to current statutory provisions.

This case also serves as an example of how long the death penalty litigation process can take.  The defendant here was sentenced to death in 2005.  It was not until four years later that the Supreme Court appointed counsel — the State Public Defender — to represent defendant in his automatic appeal.  The court recently granted counsel’s 41st request for an extension of time to file the opening brief.  Almost a dozen years after the death sentence was imposed, no counsel has yet been appointed to represent the defendant in habeas corpus proceedings, which the court today says is due to the “regrettable reality” that there is “a shortage of qualified attorneys willing to accept appointment.”  The court’s recognition of the difficulty in finding habeas counsel is nothing new.

The court notes that Prop. 66 — passed by the voters in November but stayed while under review by the court — transfers responsibility for the appointment of capital habeas counsel from the Supreme Court to the superior court, but “expresses no view regarding the effect of that enactment.”

 

February 16, 2017

Supreme Court limits suits against winners of public works contracts

Finding that “[t]he costs of recognizing a tort remedy . . . are simply too high,” the Supreme Court today holds in Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., that the second lowest bidders on 23 public works contracts valued at over $14,000,000 cannot sue the winning bidder for wrongful conduct during the bidding process.  The winner was allegedly able to underbid by not paying prevailing wage and overtime compensation to its workers.

The court’s unanimous opinion by Justice Carol Corrigan concludes that, in the “highly regulated circumstances” of public works contracts, which are “a unique species of commercial dealings,” there could be no action for intentional interference with prospective economic advantage because the runner-ups “had ‘at most a hope for an economic relationship and a desire for future benefit.'”  Warning that “[c]ourts must act prudently when fashioning damages remedies ‘in an area of law governed by an extensive statutory scheme'” like public contracts, the opinion states that an unsuccessful bidder can instead challenge the award of a contract by seeking injunctive relief by petitioning for a writ of mandate.

The court reverses a 2-1 decision by the Second District, Division Eight, Court of Appeal.

February 15, 2017

Clean-up-their-own-mess, intentional interference opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in People v. Superior Court (Morales) and Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., which were both argued on the December calendar.

It was in the Morales case that a Court of Appeal justice said at oral argument that the “problem” in the case is one “of their [the Supreme Court’s] creation,” and that he “always believe[s] in someone cleaning up their own mess,” comments that were quoted in the successful petition for review.  The issue is whether the superior court had jurisdiction to order various entities to preserve materials that might at a later date be included in a motion for post-conviction discovery under Penal Code section 1054.9.

The Roy Allan Slurry Seal case raises these questions:  (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded?  (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder?

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

February 10, 2017

No conference held the week of February 6, 2017

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

February 9, 2017

Supreme Court upholds no-gun, no-drugs probation conditions without express knowledge requirement, and it identifies a related issue for possible later review

In People v. Hall, the Supreme Court today holds that probation conditions prohibiting a defendant from possessing firearms or illegal drugs are valid even if they don’t specifically bar knowing possession of those things.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar rejects the argument that the conditions are unconstitutionally vague.  Because “revocation [of probation] requires knowledge,” the court reasons, it is unnecessary “to modify those conditions simply to make explicit what the law already makes implicit.”

The court also identifies an issue that could be ripe for review in another case.  Citing cases from other jurisdictions, the opinion expressly leaves undecided the question “whether sustaining a probation violation requires a showing of willfulness where the probation violation poses a direct threat to public safety or otherwise frustrates the assumptions underlying the grant of probation.”

The court affirms the First District, Division One, Court of Appeal.  It disapproves of 2016 and 2015 decisions by the First District, Division Four, a 2013 decision by the Sixth District, and a 2009 decision by the Third District.  (The 2016 case — In re Ana C. — is a grant-and-hold case and needed to be disapproved because, under a recent rule change, the grant of review did not automatically depublish the Court of Appeal’s opinion.)

February 8, 2017

Probation conditions opinion filing tomorrow

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

Hall raises these issues:  (1) Are probation conditions prohibiting defendant from:  (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague?  (2) Is an explicit knowledge requirement constitutionally mandated?

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

February 6, 2017

Historical Society’s annual journal focuses on UCLA’s law school

The annual journal of the California Supreme Court Historical Society — not to be confused with thelegal-hist-v-11-web-summary_page_001 Society’s semi-annual newsletter — is available.  [Disclosure:  I’m on the Society’s board of directors.]  This volume is mostly about the UCLA School of Law, and includes personal reminiscences by numerous judicial alums.  The journal also features the first place essay — A Model for Juvenile Parole Reform:  California’s Youth Offender Parole Hearings Challenge the Modern Parole System and Apply the Fundamental Principles in Graham and Miller to the Release Decision-Making Process — in the Society’s law student writing competition.  The competition is named after the journal’s current editor-in-chief, the legendary Selma Moidel Smith.

February 3, 2017

Summary of February 1, 2017 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, February 1, 2017. 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

None.

Order to Show Cause Issued

Briggs v. Brown, S238309 – Order to Show Cause Issued  – February 1, 2017

In this original proceeding, the Court ordered respondents Jerry Brown, Governor of the State of California; Xavier Becerra, Attorney General of California; and the Judicial Council of California to show cause why the relief sought by petitioners should not be granted.

This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).

Review Denied (with dissenting justices)

None.

Depublished

None.

February 1, 2017

Prop. 66 on extended hold as Supreme Court agrees to hear challenge [Updated]

The Supreme Court today decided to hear on the merits a writ petition — Briggs v. Brown — challenging Prop. 66, the initiative passed in November to speed up California’s death penalty system.  In December, the court stayed implementation of the law while it considered the writ petition and preliminary oppositions.  That stay will now continue “pending the court’s decision in this matter.”

Because Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused, the Acting Chief Justice — Carol Corrigan — will appoint two pro tem justices to sit on the case.  Today’s order does not say — and we can only speculate — who those two will be.

The court has set an expedited briefing schedule.  Formal returns (oppositions to the writ petition) are due February 27, a reply to the returns must be filed by March 20, and the court’s order to show cause states, “The court does not anticipate granting any extensions of time regarding the due dates.”

[Update:  The court has made all documents in the writ proceeding available online.]

January 30, 2017

Summary of January 25, 2017 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, January 25, 2017. 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

United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544 – Review Granted  – January 25, 2017

In a partially published opinion, United Auburn Indian Community of the Auburn Rancheria v. Brown (2016) 4 Cal.App.5th 36, the Third District Court of Appeal held that (1) the Governor’s concurrence that land is suitable for Indian gaming is not a legislative act and thus does not violate the separation of powers doctrine, and (2) the Governor did not exceed his authority in conducting negotiations before a parcel became “Indian land.”

This case presents the following issue:  May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?

Additional Issues Added

Shaw v. Superior Court, S221530 – Additional Issues Added – January 25, 2017

In a published opinion, Shaw v. Superior Court (2014) 229 Cal.App.4th 12, the Court of Appeal, Second District, Division Three, held that (1) a petition for writ of mandate was the correct method of review for the wrongful termination claim; (2) a statute granted the right to a jury trial; and (3) the employee had a constitutional right to a jury trial.  The Supreme Court granted review on November 12, 2014.  The parties submitted briefs addressing the following issues: (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal? (2) Is there a right to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5?

In addition to the points raised in the briefs filed, the Court last week requested that the parties be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, and an action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).

Review Denied (with dissenting justices)

None.

Depublished

None.

January 26, 2017

Supreme Court grants review on its own motion in juvenile LWOP case

The Supreme Court yesterday granted review on its own motion in People v. Padilla.  The court does that occasionally.

The last time the court granted review on its own motion, the Attorney General lost in the Court of Appeal, decided not to seek review, but was dragged into the Supreme Court anyway, only to lose againPadilla could be a replay of that scenario.  In Padilla, the Court of Appeal reversed a sentence of life without the possibility of parole for a murder committed by a 16-year-old.  The Attorney General did not petition for review, but will now need to defend the case again in the Supreme Court.

The Supreme Court has limited the issue to be briefed and argued to this:  Did Montgomery v. Louisiana (2016) 577 U.S.___, 136 S.Ct. 718, 193 L.Ed.2d 599, clarify that Miller v. Alabama (2012) 567 U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (Miller) bans a sentence of life without the possibility of parole on a specific class of juvenile offenders whose crimes reflect the transient immaturity of youth, thereby requiring that trial courts determine that the crime reflects “irreparable corruption resulting in permanent incorrigibility” before imposing life without parole, or does a trial court comply with the constitutional mandates of Miller by giving due consideration to the offender’s youth and attendant circumstances in exercising its sentencing discretion under Penal Code section 190.5, subdivision (b)?

Lengthy sentences for crimes committed by minors is of continuing interest to the court.

January 26, 2017

Supreme Court unanimously affirms death sentence, with concurring opinion on Batson/Wheeler issues

The Supreme Court today affirms the death sentence in People v. Winbush.  As is typical in automatic direct death penalty appeals, the court’s unanimous opinion — by Justice Carol Corrigan — requires almost 100 pages to reject a host of arguments.

One of the defendant’s arguments is that the prosecution had a racially discriminatory motive in peremptorily challenging three African-American prospective jurors.  The court upholds what it calls the superior court’s “unusually detailed, careful ruling” that had found no racial discrimination.  Justice Goodwin Liu signs the court’s opinion, but writes a concurring opinion to discuss “two aspects of our Batson/Wheeler jurisprudence that merit reexamination in an appropriate case.”  Justice Liu has similarly written separately in other cases.

The court will be revisiting Batson/Wheeler issues in the future, including in People v. Enriquez, which will be argued on the March calendar.

January 25, 2017

Eight cases on the March calendar

The Supreme Court today announced its March calendar.  There are eight cases to be argued in San Francisco, evenly split between criminal and civil.

On March 7 and 8, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Gonzalez:  Can nonverbal, threatening gestures constitute a “statement, made verbally, in writing, or by means of an electronic communication device” as required for making a criminal threat in violation of Penal Code section 422?

Wheatherford v. City of San Rafael:  Must a plaintiff have paid or be liable to pay a property tax to a government entity in order to bring a taxpayer waste action against that entity under Code of Civil Procedure section 526a, or can the payment of other taxes confer standing?

People v. Enriquez:  This is an un-hold case.  When the court un-held the case, it directed the parties to brief the issue whether the Court of Appeal erred in upholding the trial court’s denial of defendants’ Batson/Wheeler motions.  Batson issues are frequently before the court, sometimes dividing the justices.

People v. Martinez:  Can a defendant, who is convicted of hit-and-run and sentenced to prison rather than placed on probation, be required to pay restitution for the injuries the victim suffered in the collision?

People v. Parker:  This is an automatic direct appeal from a January 1999 judgment of death.  The court’s website does not list issues for such appeals.

Williams & Fickett v. County of Fresno:  (1) Must a taxpayer against whom an escape assessment on personal property has been made exhaust administrative remedies by filing an application with the county’s board of equalization to reduce the assessment if the taxpayer claims that it does not own and has no interest in the assessed property, or does the taxpayer fall within the “nullity” exception to the exhaustion requirement?  (2) Is a taxpayer who files an application for changed assessment with the county’s board of equalization subject to a one-year limitations period for paying the assessment and filing an action challenging the assessment, or does the period within which the taxpayer may file such an action begin to run only after the taxpayer has paid the disputed taxes?

Leider v. Lewis:  (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?

Dhillon v. John Muir Health:  Is a trial court order granting in part and denying in part a physician’s petition for writ of administrative mandate regarding a hospital’s disciplinary action and remanding the matter to the hospital for further administrative proceedings an appealable order?
[Disclosure:  Horvitz & Levy is appellate counsel for John Muir Health.]

January 25, 2017

Death penalty opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in People v. Winbush, which is the last undecided case from the November calendar.  Winbush is an automatic direct appeal from a July 2003 judgment of death.

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

January 23, 2017

Supreme Court rejects challenge to Insurance Commissioner’s regulation for homeowners coverage

In Association of California Insurance Companies v. Jones, the Supreme Court today holds that the Unfair Insurance Practices Act authorized the Insurance Commissioner to enact a regulation regarding replacement cost coverage in homeowners insurance.  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar rejects one challenge to the 2011 regulation, a part of which, in a footnote, takes up almost three pages of the court’s opinion.  The court, however, remands the case to allow lower courts to evaluate other arguments against the regulation, including that it violates insurers’ rights to free speech.

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