June 26, 2017

Summary of June 21, 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 June 21, 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

Scholes v. Lambirth Trucking, S241825 – Review Granted – June 21, 2017

In this published opinion, Scholes v. Lambirth Trucking (2017) 10 Cal.App.5th 590, a fire from defendant’s storage site damaged plaintiff’s property. Plaintiff alleged negligent trespass, intentional trespass and strict liability. This case presents the following issue: Are the double damages provisions of Civil Code section 3346 applicable to negligently caused fire damage to trees?

Defendant demurred, arguing the plaintiff’s claims were barred by the statute of limitations and that the complaint failed to state a viable cause of action for intentional trespass or strict liability.  The trial court sustained the demurrer without leave to amend on statute of limitations grounds.  The Third District Court of Appeal affirmed, ruling consistent with its holding in Gould v. Madonna (1970) 5 Cal.App.3d 404, that double damages do not apply to fires negligently set.

Melamed v. Cedars-Sinai Medical Center, S241146 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Plaintiff, a physician, operated on a 12-year-old patient, causing complications requiring corrective surgery. Defendant hospital suspended plaintiff who requested a peer review hearing challenging the suspension. Each administrative review upheld the suspension. Plaintiff filed suit against the hospital, its medical staff, and the doctors involved in the suspension decision. Defendants filed an anti-SLAPP motion. The trial court granted the motion and the Court of Appeal, Second District, Division One, affirmed in a published opinion, Melamed v. Cedars-Sinai Medical Center (2017) 8 Cal.App.5th 1271,

The issues presented for review were: (1) whether the defendant made a prima facie showing that the challenged cause of action arose from a protected activity, here the medical staff’s peer review process, and (2) whether the plaintiff has shown a probability of prevailing on the claim. The Supreme Court granted review and transferred the matter back to the Court of Appeal for reconsideration in light of Park v. Board of Trustees of the California State University (2017) 2 Cal.5th 1057.

Scaccia v. Superior Court, S241695 – Review Granted and Transferred to Court of Appeal – June 21, 2017

Code of Civil Procedure section 639 (section 639) concerns the appointment of referees—including discovery referees—in civil actions.  Section 639, subdivision (d)(6)(B), provides: “In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider among other things, the estimated cost of the referral and the impact of the proposed fees on the party’s ability to proceed with the litigation.”  Subdivision (d)(3) states: “all appointments of referees pursuant to this section shall be by written order and shall include . . . the subject matter or matters included in the reference.”

In Scaccia v. Superior Court, C084225, the petitioner filed a writ petition to reverse the trial court’s appointment of a discovery referee under section 639 on the grounds that the petitioner is indigent.  The Third District Court of Appeal summarily denied the petition. The Supreme Court granted review and transferred the matter back to the Court of Appeal with directions to vacate the denial of the writ petition, to issue an alternative writ, and “to reconsider the appropriate scope of the reference under Code of Civil Procedure section 639, subdivision (d)(3) and the parties’ ability to pay under Code of Civil Procedure section 639, subdivision (d)(6)(B).”

Review Denied (with dissenting justices)

None.

Depublished

In re Isabella M., S242008 – Review Denied and Depublished – June 21, 2017

In In re Isabella M. (2017) 10 Cal.App 5th 535, the alleged father of Isabella M., a minor, was incarcerated from the time of her birth until she was 20 months old. The juvenile court denied alleged father’s petition to adjust his parental status from alleged to presumed father and thereafter terminated his paternal rights. The Court of Appeal, Second District, Division Seven, affirmed.  The Supreme Court denied review and ordered the Court of Appeal’s opinion depublished.

June 26, 2017

Non-employee physician at public hospital can be charged with criminal self-dealing

In People v. Superior Court (Sahlolbei), the Supreme Court today allows the Riverside County DA to proceed with the prosecution of a surgeon for allegedly pressuring a public hospital to hire another physician whose contract would benefit the surgeon.  Government Code section 1090 prohibits certain public “officers or employees” from being “financially interested in any contract made by them in their official capacity.”  The surgeon — and the Court of Appeal — said section 1090 doesn’t apply to him because he practices at the hospital as an independent contractor, not an employee.  The court’s unanimous opinion by Justice Goodwin Liu holds the distinction doesn’t matter in this case, concluding that, although not “all independent contractors are covered by section 1090,” the statute does apply “to independent contractors who can be said to have been entrusted with ‘”transact[ing] on behalf of the Government.”‘”

More specifically, the court finds no problem in exposing physicians at public hospitals to section 1090 liability.  The justices say they “are not convinced that the practice of medicine cannot bear the weight of conflicts of interest statutes.”

The court reverses a 2-1 decision from the Fourth District, Division Two, Court of Appeal.  It also disapproves a 2013 opinion by the Second District, Division One.

Sahlolbei was argued on the April calendar.  There are still five undecided cases from that calendar, and only two more regular filing days within the 90-day deadline to issue opinions in those cases.

June 22, 2017

Ninth Circuit asks for help on procedural issue arising in limited-civil debt-collection cases

The Ninth Circuit today asks the Supreme Court to decide a California procedural issue that arises in limited civil cases, including debt collection actions.  The federal court says “an answer from the California Supreme Court will help simplify litigation procedures in these low value cases, which are responsible for the vast majority of civil filings in California. . . . . It will also provide guidance to California consumers, creditors, and debt collectors and purchasers who litigate thousands of debt collection cases each year.”  The issue is of importance in the Ninth Circuit case — Meza v. Portfolio Recovery Associates, LLC — which concerns whether the defendants misused a litigation procedure and thus violated the federal Fair Debt Collection Practices Act.

Under Code of Civil Procedure section 98, a party in a limited civil case can substitute a witness’s declaration for live testimony, but the declaration must, under certain circumstances, include “a current address of the affiant that is within 150 miles of the place of trial, and the affiant [must be] available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.”  In the collection action underlying the Meza case, the debt collector submitted the declaration of a person who lives more than 150 miles from the courthouse, but the declaration included the address of the debt collector’s attorneys, who were authorized to accept service of process on the witness’s behalf.

The question the Ninth Circuit poses is:  “Under § 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”  The Court of Appeals says that the only relevant case authority is from the appellate divisions of the California Superior Court, and those decisions are inconsistent.  (The court cites one unpublished opinion that is inconsistent with two published opinions.)

The Supreme Court likely will decide by the end of August — give or take — whether it will answer the Ninth Circuit’s question.  It probably will.

June 22, 2017

Video of judicial elections program available

At last year’s State Bar meeting, the California Supreme Court Historical Society presented a program — “Thirty Years After a Hundred Year Flood:  Judicial Elections and the Administration of Justice” — on the occasion of the 30th anniversary of one of the most significant events in the court’s history:  the 1986 election at which three justices lost their seats.  The program panel included two of those justices — Joseph Grodin and Cruz Reynoso — and Dean Erwin Chemerinsky of the UC Irvine School of Law (soon to be dean of the UC Berkeley School of Law).

The Society has posted on its website the program materials and a video of the program.  The video is also on the Society’s YouTube channel.

[Disclosure:  I’m on the Society’s board of directors and I moderated the program.]

June 21, 2017

Justice Liu critical of Attorney General’s briefing

When the Supreme Court earlier this week affirmed the death penalty judgment in People v. Sivongxxay, Justices Goodwin Liu and Mariano-Florentino Cuéllar both dissented in part, asserting the penalty should be reversed because, they said, an inadequate jury trial waiver was prejudicial error.  The majority found the error to be harmless, based on a theory — Justice Liu’s separate opinion reports — first suggested by the court when it solicited supplemental briefing after oral argument.

The Attorney General’s supplemental brief endorsed the new theory, but Justice Liu takes the brief to task for the way it did so.  In a long parenthetical (Justice Liu doesn’t use footnotes), his opinion says in part, “I find it troubling that the Attorney General’s supplemental brief contends — at the eleventh hour, with no explanation for its belated epiphany — that our precedent ‘virtually compels’ the harmless error analysis in today’s opinion.  The absence of any explanation risks the perception that the Attorney General’s new contention is opportunistic or that his initial briefing, having missed a theory ‘virtually compel[led]’ by our precedent, was of questionable competence.  Neither does wonders for the government’s credibility.”

Justice Liu has expressed similar criticisms before.

June 19, 2017

SCOTUS reverses California Supreme Court personal jurisdiction decision

The U.S. Supreme Court today reverses the 4-3 California Supreme Court decision in Bristol-Myers Squibb Company v. Superior Court, where the state court held that hundreds of non-California plaintiffs could sue a pharmaceutical manufacturer in a California court for injuries allegedly caused by one of the defendant company’s drugs, even though the company is neither incorporated nor headquartered in the state.  [Disclosure:  Horvitz & Levy was co-counsel for defendant Bristol-Myers in the California Supreme Court.]

The 8-1 high court opinion is by Justice Samuel Alito.  It says that the state court’s opinion is “difficult to square with our precedents.”  Justice Sonia Sotomayor dissents, asserting “there is nothing unfair about subjecting a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.”

The California Supreme Court opinion was written by Chief Justice Tani Cantil-Sakauye and was signed by Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger.  Justice Kathryn Werdegar dissented, for herself and Justices Ming Chin and Carol Corrigan.

June 19, 2017

The New York Times interviews the Chief Justice

The California Today section of the New York Times includes excerpts of an interview with Chief Justice Tani Cantil-Sakauye.  From the introduction:  “While Ms. Cantil-Sakauye says she does not think of herself as political, she has not shown any signs of backing off from her criticisms of President Trump, calling his comments about the judiciary damaging.”  (See, e.g., here and here.)

June 19, 2017

Divided Supreme Court affirms death penalty

The Supreme Court today affirms the death penalty in People v. Sivongxxay by a 5-2 vote.  All seven justices agree that the conviction must stand, but two justices want to reverse the special circumstances finding that made the defendant eligible for capital punishment.

The point of disagreement is the defendant’s waiver of a jury trial on the special circumstances issue.  The court’s opinion by Chief Justice Tani Cantil-Sakauye holds the waiver did not comply with a statute (although it was constitutionally adequate), but the error did not require automatic reversal and was harmless.

Justices Goodwin Liu and Mariano-Florentino Cuéllar each write their own separate opinions, asserting that the waiver violated both the constitution and the statute and that the error requires automatic reversal.  (Justice Liu also disagrees with the majority’s conclusion that the defendant’s waiver of a penalty phase jury was sufficient.)  Justice Liu says the court’s harmless error holding “may understandably cause a bit of whiplash:  The court, having found error under the statute, excuses the error through reasoning that defeats the statute’s very purpose.”

A trial judge was the fact finder on all issues, and the defendant claimed his waiver of a jury trial in general — not just as to the special circumstances issue — was not a knowing one.  The court rejects that argument, concluding, “the circumstances surrounding defendant’s jury waiver demonstrate that it was knowing and intelligent.”  However, the court also “emphasize[s] the value of a robust oral colloquy [by a trial judge] in evincing a knowing, intelligent, and voluntary waiver of a jury trial” and makes specific — but non-exclusive — recommendations about what a judge should be telling a defendant who is considering a waiver.

Here’s an interesting fact about the case:  the opinion indicates that current Fifth District Court of Appeal Justice Jennifer Detjen was the trial prosecutor.

June 17, 2017

LACBA magazine reviews Supreme Court history book

The current issue of Los Angeles Lawyer — the magazine of the Los Angeles County Bar Association — includes a book review by Dennis Hernandez of the California Supreme Court Historical Society’s recently published history of the court:  “Constitutional Governance and Judicial Power.”  (The Society hosted a book event last year, featuring Chief Justice Tani Cantil-Sakauye and former Chief Justice Ronald George.)

The review calls the book “a worthwhile read” and “a comprehensive history of the court that is readable, educational, and enjoyable for lawyers and lay persons alike.”  It says that “even the footnotes are interesting.”

June 16, 2017

Summary of June 14, 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 June 14, 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

De La Torre v. Caschcall, S241434 – Request to Answer Certified Question of State Law Granted – June 14,  2017

The Supreme Court agreed to answer the following question of state law certified to it by the U.S. Court of Appeals for the Ninth Circuit in De La Torre v. CashCall (April 21, 2017, D.C. No. 3:08-cv-03174-MEJ Nos. 14-17571, 15-15042):  Finance Code section 22303 governs the interest rate on consumer loans of $2,500 or more but provides no interest rate limitations on such loans. Accordingly, can the interest rate on such loans be unconscionable in violation of section 22302 and thus be the predicate for a private cause of action under the Unfair Competition Law, Business & Professions Code section 17200 et seq.?

Dr. Leevil v. Westlake Health Care Center, S241324 – Review Granted; Issues Limited

The Supreme Court limited review to this issue:  Does Code of Civil Procedure section 1161a require a purchaser of real property at a foreclosure sale to perfect title before serving a three-day notice to quit on the occupant of the property?

The Court of Appeal, Second District, Division Six, held in a published decision, Dr. Leevil, LLC v. Westlake Health Care Center (2017) 9 Cal.App.5th 450, that: (1) a lease with automatic and permissible subordination clauses was subordinate to a deed of trust, (2) a notice to quit served after a purchaser buys property but before recording title to it is not premature, and (3) Code of Civil Procedure section 1161a does not require a purchaser at a foreclosure sale to perfect its title in the property before serving the occupants with a notice to quit.

McClain v. Sav-On Drugs, S241471 – Review Granted – June 14, 2017

The Court of Appeal, Second District, Division Two, held in a published decision, McClain v. Sav-on Drugs (2017) 9 Cal.App.5th 684, that: (1) no direct cause of action was available to customers who brought a class action against retail pharmacies and the Board of Equalization to compel the pharmacies to seek a refund of sales tax reimbursements paid by the customers for skin puncture lancets and test strips and (2) the failure to provide for such a direct right of action did not violate due process.

K.J. v. Los Angeles Unified School District, S241057– Review Granted– June 14, 2017

In an unpublished opinion, K.J. v. Los Angeles Unified School District (Feb. 23, 2017 BC505356), the Court of Appeal, Second District, Division Three, dismissed the plaintiff’s appeal from an order requiring her attorney to pay attorney fees and costs as a discovery sanction. The court concluded the plaintiff was not aggrieved and thus had no standing to appeal because she was not sanctioned and her attorney had not appealed.

Spear Education v. Superior Court (CAD-RAY), S241197–Review Granted and Held– June 14, 2017

The Supreme Court granted review and deferred further action pending finality of the court’s decision in Bristol-Myers Squibb v. Superior Court (2016) 1 Cal.5th 783, which is currently awaiting a decision from the U.S. Supreme Court on certiorari.  That case presents the following question:  “Whether a plaintiff’s claims arise out of or relate to a defendant’s forum activities when there is no causal link between the defendant’s forum contacts and the plaintiff’s claims – that is, where the plaintiff’s claims would be exactly the same even if the defendant had no forum contacts.”

Review Denied (with dissenting justices)

Jane Doe v. United States Youth Soccer Association, Inc., S241038–Review Denied [Chin, J., voting for review]  –  June 14, 2017

In this case, a minor was sexually abused by her former soccer coach.  The question presented is whether the defendants had a duty to protect the plaintiff from criminal conduct by a third party.  In a published opinion — Doe v. United States Youth Soccer Association, Inc. (2017) 8 Cal.App.5th 1118 — the Sixth District Court of Appeal held there was a duty to conduct criminal background checks of all adults who would have contact with children involved in defendant’s programs.

Martinez v. County of Mendocino, S241398–Review Denied [Chin, J., voting for review]–June 14, 2017

The issue in this case was the legality of a program in which criminal defendants charged with marijuana-related felonies are offered the opportunity to reduce their charges in exchange for a set payment determined by the amount of marijuana seized.  In an unpublished opinion, Martinez v. County of Mendocino (Cal. Ct. App., Mar. 10, 2017, No. A146710)  the Court of Appeal, First District, Division One, did not resolve the issue because: (1) it held the plaintiff was not entitled to a preliminary injunction because he failed to demonstrate that the balance of harm favored him; and (2) the plaintiff lacked standing to seek disgorgement of payments made in criminal cases.

Depublished

None.

June 16, 2017

Optional, then mandatory, e-filing coming soon to the Supreme Court

The Supreme Court today announced that it will soon start e-filing documents.  Voluntary e-filing will start on July 10.  It will be required as of September 1.

The court will conduct live training sessions next week in Los Angeles and San Francisco.  Videos of the trainings will then be made available online.

June 16, 2017

Upcoming program: 2016-17 California Supreme Court Round-Up

The Los Angeles chapter of the Federalist Society will present a luncheon program on Thursday, June 29, at noon, that will review the California Supreme Court’s most significant decisions in 2016-17.  Appellate lawyers Laura W. Brill (Partner at Kendall Brill & Kelly LLP), Daniel M. Kolkey (Partner at Gibson, Dunn & Crutcher LLP, and former Justice of the California Court of Appeal), and Jeremy B. Rosen (Partner at Horvitz & Levy LLP) will be the panelists.

The luncheon costs $45; $35 for Federalist Society members.

The program will be held at The California Club, 538 South Flower Street, in Los Angeles.  Email la.fedsoc@gmail.com if you would like to attend what is sure to be an enlightening presentation, not to mention the one hour of MCLE credit.

June 16, 2017

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Sivongxxay, which was argued on the December 2016 calendar.  Yes, December.  But there’s a good reason for the delay.  (Video of the oral argument is here; briefs are here.)

Sivongxxay is an automatic direct appeal from an April 1999 judgment of death.  Unlike for other cases, the court in death penalty appeals doesn’t state the issues in advance of its opinion.  However, we do have an idea of what’s involved in this case because the court twice asked for supplemental briefing.

Before argument, the court told the parties to address, “If the trial court fails to obtain a capital defendant’s separate waiver of his right to a jury determination of the special circumstance allegation, does that failure compel automatic reversal of the special circumstance finding?  (See Ring v. Arizona (2002) 536 U.S. 584; Neder v. United States (1999) 527 U.S. 1; People v. Sandoval (2007) 41 Cal.4th 825.)”  After argument, the court directed briefing on this:  “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.)”

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

June 15, 2017

Supreme Court applies statutory restriction on implied dedication to noncoastal property used for nonrecreational purposes

The Supreme Court today delivers bad news to two Topanga Canyon residents who want to access their property by driving on roadways that cross their neighbors’ land.  In Scher v. Burke, the court holds that a statutory restriction on finding dedications of property to the public applies to noncoastal property regardless of whether the property is being used for recreational or nonrecreational purposes.

The statute was enacted in response to a 1970 Supreme Court decision that found coastal property owners who allowed the public to use the property for recreational purposes could be determined to have impliedly dedicated property rights to the public.  By its terms, the statute applies to both coastal and noncoastal property, and the court’s unanimous opinion by Justice Leondra Kruger concludes that the legislation makes no distinction between recreational and nonrecreational uses of noncoastal property.

The court affirms the Second District, Division Three, Court of Appeal.  It disapproves 2015 and 2004 Third District Court of Appeal opinions and a 2002 opinion by the Fourth District, Division One.

June 15, 2017

Denials of motions to vacate judgments are appealable

Appellate jurisdiction might not interest many practitioners other than appellate lawyers, but it sure is on the Supreme Court’s radar of late.  Last month, the court addressed the appealability of superior court rulings on administrative mandate petitions.  Yesterday, the court agreed to review a decision regarding standing to appeal a discovery sanctions order.  Today, in Ryan v. Rosenfeld, the Supreme Court holds that an order denying a statutory motion to vacate a judgment is appealable.

The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar holds that a superior court order denying a motion under Code of Civil Procedure section 663 to vacate a final judgment is appealable because the Legislature has authorized appeals from orders made after appealable judgments.  The court concludes, “A statutory appeal from a ruling denying a section 663 motion is indeed distinct from an appeal of a trial court judgment and is permissible without regard to whether the issues raised in the appeal from the denial of the section 663 motion overlap with issues that were or could have been raised in an appeal of the judgment.”

The court vacates the order of the First District, Division Four, Court of Appeal that had dismissed the plaintiff’s appeal.  It overrules — as an apparent “oversight” and an “unexplained departure” from precedent — a statement on appealability in one of its 1978 opinions.  The court also disapproves 2008 and 1928 (!) Third District opinions, a 2007 opinion by the Second District, Division Seven, and a 2004 opinion by the First District, Division Four.

June 14, 2017

Supreme Court again says “yes” to the Ninth Circuit, will answer consumer loan/UCL question

The Supreme Court today agreed to answer another question of California law for the Ninth Circuit.  In De La Torre v. CashCall, Inc., the federal appeals court wants to know the Supreme Court’s take on the issue “whether the interest rates on consumer loans of $2500 or more that are governed by California Finance Code § 22303, which provides no interest rate limitations on such loans, can be deemed unconscionable under California Finance Code § 22302 and thus be the predicate for a private cause of action under the California Unfair Competition Law (‘UCL’).”  The Ninth Circuit case is a class action alleging consumer loans with interest rates of 90 percent or higher.

Today’s grant of the Ninth Circuit’s request is consistent with the Supreme Court’s commitment to comity.  Over the last five years, it has turned down federal appellate courts just once in the last 18 requests, and even then it wasn’t really a denial.

June 14, 2017

Implied dedication, appellate procedure opinions filing tomorrow; December calendar death penalty opinion expected Monday

Tomorrow morning, the Supreme Court will file its opinions in Scher v. Burke and Ryan v. Rosenfeld:, which were both argued on the April calendar.  (See the oral arguments here.)

Scher will address whether Civil Code section 1009 precludes non-recreational use of non-coastal private property from ripening into an implied dedication of a public road.

Ryan raises the issue whether the denial of a motion to vacate the judgment under Code of Civil Procedure section 663 is separately appealable.

Not filing tomorrow is the opinion in People v. Sivongxxay, an automatic direct death penalty appeal that was argued more than six months ago.  How is that possible when an opinion is due within 90 days of a case’s submission, which typically occurs as soon as oral argument concludes?  As it occasionally does, the Supreme Court asked for post-argument supplemental briefing in Sivongxxay, and it vacated submission, resubmitting the case when the last supplemental brief was filed on March 22.  The resubmission restarted the 90-day clock, which runs out this coming Tuesday.  After tomorrow, Monday is the only regular filing day within the 90-day period, so look for the Sivongxxay opinion then.

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

June 12, 2017

50 years since Loving; 69 years since Perez

While the country today commemorates the 50th anniversary of the U.S. Supreme Court’s decision in Loving v. Virginia (1967) 388 U.S. 1, holding to be unconstitutional those state statutes that banned inter-racial marriages, it’s worth also remembering that the California Supreme Court came to the same conclusion almost two decades earlier, in Perez v. Sharp (1948) 32 Cal.2d 711.

The Perez case is a footnote — literally — to the Loving decision.  The high court mentioned only in passing, and not in the opinion’s text, “The first state court to recognize that miscegenation statutes violate the Equal Protection Clause was the Supreme Court of California.”  (Loving, 388 U.S. at p. 6, fn. 5.)  A similarly understated acknowledgment of a trailblazing California Supreme Court opinion occurred two years ago when SCOTUS ruled in favor of same-sex marriages in Obergefell v. Hodges (2015) 135 S.Ct. 2584.

June 9, 2017

No conference held the week of June 5, 2017

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

June 9, 2017

Supplemental briefing ordered in Prop. 66 case

The Supreme Court heard oral argument on Tuesday in Briggs v. Brown, the writ petition challenging Proposition 66, the initiative to speed up California’s death penalty system.

Today, the court asked for supplemental briefing to address “[w]hether the authorization of an appeal to the Court of Appeal from the decision of a superior court on an initial capital habeas corpus petition (Pen. Code, § 1509.1, subd. (a)) conflicts with the grant of appellate jurisdiction to this court ‘when judgment of death has been pronounced’ (Cal. Const., art. VI, § 11, subd. (a); see id., § 12, subd. (d)).”

In keeping with the expedited schedule the court has so far set in this case, the supplemental briefing has tight due dates.  Initial briefs, including any amicus briefs, must be filed in 10 days and any replies are due by June 29.

The briefing request will not re-start the 90-day period for filing the court’s opinion, unlike in other cases.  The court’s order provides, “The cause remains submitted as of June 7, 2017.”  (Sic:  that probably should be June 6.  However, whether the submission date is June 6 or June 7, the last regular opinion-filing day within the 90-day period is August 31.)

June 8, 2017

Supreme Court denies death row prisoner’s habeas petition that had alleged jury misconduct

The substantial evidence rule is a formidable obstacle.  The death row prisoner in In re Bell had that basic principle reinforced today.  Bell beat the odds when — years after the Supreme Court had affirmed his death sentence on direct automatic appeal — the court issued an order to show cause on his habeas corpus petition and directed the appointment of a referee to evaluate the petition’s claim of jury misconduct.  But the court now denies the petition in a unanimous opinion by Justice Kathryn Werdegar.

After an evidentiary hearing about the alleged misconduct — a holdout juror supposedly changed her vote to support the death sentence based on advice she had solicited from her husband — the appointed referee concluded the misconduct never occurred.  The Supreme Court rejects the prisoner’s claims that the referee improperly excluded evidence and, “[g]iving great weight to the referee’s factual findings,” determines that the referee’s decision is supported by substantial evidence.

June 7, 2017

“How a recent California high court decision may be a harbinger for change on the bench”

KPCC’s Larry Mantle interviews appellate lawyer Kirk Jenkins about the Supreme Court’s recent People v. Gutierrez decision, which reversed three criminal convictions because of racially discriminatory jury selection (see here).

According to KPCC, “The decision will have wide-ranging implications for how a criminal case is tried in the state.  But it also points to how the California Supreme Court’s attitude toward weighing criminal cases might be changing and what role Gov. Jerry Brown’s appointees have had and are having on the court’s rulings.”

June 7, 2017

Jury misconduct opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Bell.  This will be the first opinion in a case argued on the April calendar.

Bell is a habeas corpus proceeding that is related to the automatic appeal in People v. Bell (2007) 40 Cal.4th 582, disapproved by People v. Sanchez (2016) 63 Cal.4th 665 (see here), where the court affirmed Bell’s death sentence.  The habeas petition was filed in 2007.  In 2014, the court issued an order to show cause why petitioner is not entitled to relief on the ground of juror misconduct.  From a quick look at some of the briefing (found here), it looks like Bell claims one juror spoke with, and got advice from, her husband during penalty phase deliberations, but a referee — in a March 2016 report — found as a factual matter that the alleged misconduct did not occur.

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

June 6, 2017

“California’s top court appears divided on ballot measure to speed up executions”

Maura Dolan reports in the Los Angeles Times on this morning’s argument of the challenge to Proposition 66.  Much of the questioning apparently focused on the five-year limit the initiative sets for the Supreme Court to decide death penalty appeals.  (See here.)

As mentioned, a Supreme Court death penalty opinion filed just yesterday relates that an innocent man was wrongly convicted for one of the murders actually committed by the death penalty defendant, spending 16 years in prison before being exonerated.  Proposition 66 provides a five-year deadline for state courts to “complete the state appeal and the initial state habeas corpus review in capital cases.”

[Update:  Bob Egelko reports in the San Francisco Chronicle:  “State Supreme Court skeptical about key death penalty provision.”]

June 5, 2017

Supreme Court finds taxpayer standing to challenge government impounding of vehicles

After limiting taxpayer standing in one respect last week, the Supreme Court today expands it in another area.  In Wheatherford v. City of San Rafael, the Supreme Court holds that an individual need not be a property tax payer to have taxpayer standing to challenge an illegal use of government funds, in this case the alleged improper impounding of vehicles.  Like many Supreme Court opinions, Wheatherford is a statutory interpretation case, this one determining whether the plaintiff qualifies as a resident “who is assessed for and is liable to pay [or has paid] a tax” in the governmental jurisdiction being sued.

The court’s opinion, by Justice Mariano-Florentino Cuéllar, finds that the applicable statute “does narrow the category of taxpayers able to sue to enjoin certain expenditures of governmental funds,” but it concludes that “limiting its application to property taxpayers reflects an unduly constrained view of the statute’s requirements.”  Rather, the court states, “it is sufficient for a plaintiff to allege she or he has paid, or is liable to pay, to the defendant locality a tax assessed on the plaintiff by the defendant locality.”

All seven justices sign the court’s opinion, but Chief Justice Tani Cantil-Sakauye writes a separate concurring opinion (joined by Justice Goodwin Liu), urging “the Legislature to revisit [the taxpayer standing statute] and amend the statute in a manner that makes clear what kinds of taxes are sufficient to establish standing to sue a particular government entity for alleged wasteful or illegal expenditures.”  She notes the statute contains a “single sentence” with “87 words parsed by 19 commas,” and laments, “It is not a model of clarity.”

Justice Leondra Kruger writes her own concurring opinion (which Justice Liu also signs) identifying questions unanswered by this case, such as whether the statute “imposes a direct-assessment requirement,” a requirement which might omit sales taxes (assessed against merchants even though passed on to customers).

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

June 5, 2017

Supreme Court affirms death penalty for “Bedroom Basher”

The Supreme Court today affirms the death sentence in People v. Parker for six brutal murders committed in Orange County almost 40 years ago by the media-nicknamed “Bedroom Basher.”  All seven justices agree with the bottom line result, but two justices — although finding the error harmless as to the death penalty verdict — conclude that the defendant’s Miranda rights were violated.

Among other things, the defendant argued that the prosecution committed Batson/Wheeler error in dismissing two African-American prospective jurors.  Unlike last week, however, the court finds no Batson/Wheeler error.

Justice Kathryn Werdegar writes the majority opinion.  Justice Goodwin Liu writes the concurring and dissenting opinion (which Justice Mariano-Florentino Cuéllar joins) finding Miranda error.  Chief Justice Tani Cantil-Sakauye signs the majority opinion, but also separately concurs to question the continued viability of a 1983 Supreme Court opinion that held the Right to Truth-in-Evidence provision of Proposition 8, a 1982 ballot initiative, curtailing application of the exclusionary rule in criminal proceedings, does not apply in cases where the tried crimes occurred before the proposition’s effective date.

The court’s opinion notes that the husband of one victim (the victim survived the defendant’s attack, but her almost full-term fetus did not) was falsely convicted of second degree murder and served 16 years in prison before being released based on DNA evidence that incriminated the defendant.  In related news, the court tomorrow hears argument on a challenge to Proposition 66, which could lead to the execution, well within 16 years, of someone falsely convicted of murder.

June 5, 2017

Taxpayer must exhaust administrative remedies regarding taxed property it claims not to have owned, Supreme Court rules prospectively

In Williams & Fickett v. County of Fresno, the Supreme Court today holds that taxpayers who claim they did not own property that has been taxed are generally required to exhaust administrative remedies before going to court for a tax refund.  The court’s 5-2 opinion by Chief Justice Tani Cantil-Sakauye concludes that, unless the assessor and county board of equalization agree that the matter involves only a nonvaluation question, “an assessment appeal must be pursued to resolution before the county board to preserve the taxpayer’s right to later bring a refund action after payment of the tax.”

A concurring and dissenting opinion by Justice Ming Chin, signed by Justice Carol Corrigan, disagrees with the type of administrative exhaustion that must be pursued by a putative non-owner, asserting that “a refund claim is, by itself, a fully adequate avenue of administrative exhaustion.”

The court overrules one of its own opinions, from 1954, stating the opinion “has been overtaken by intervening developments in the law.”  The overruling is prospective only, however, so, although disagreeing with the Fifth District Court of Appeal’s decision in this case, the Supreme Court affirms the Court of Appeal’s judgment.  And, because of that, Justices Chin and Corrigan concur in the affirmance.

June 2, 2017

Supreme Court issues opinions clarifying the criminal threats statute and explaining the showing required to overcome a Batson/Wheeler challenge

The Supreme Court issued two criminal opinions yesterday.  The first clarifies what constitutes a verbal threat under the criminal threat statute, Penal Code section 422.  The second addresses the nature of the showing that a prosecutor must make to overcome a Batson/Wheeler challenge alleging unconstitutional discrimination in jury selection.

In People v. Gonzalez, S223763, the Court addressed whether 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.  The defendant, a gang member, made a gang hand-sign at an off-duty police officer and his friends at a restaurant.  The defendant then drew his finger across his neck in a cutting motion and shaped his hand like a gun and pointed it at the group.  The defendant was charged under section 422 with making criminal threats.  The defendant sought to set aside the criminal threats counts, arguing his hand gestures were not a statement “made verbally” within the meaning of the statute.  The trial court agreed and dismissed the counts.  The Court of Appeal reversed.

In a unanimous opinion authored by Justice Corrigan, the Supreme Court reversed the opinion of the Court of Appeal.  The Court ruled, “Penal Code section 422’s express reference to a statement―made verbally seems to exclude nonverbal conduct, at least when such a statement is not in writing or made via an electronic communication device.”  The court observed, with reference to the legislative history of other statutes, that “the Legislature fully understands how to define the reach of a statute more broadly in keeping with its intent. Here, it did not do so.”  The Court added, “As the high court has stated with respect to symbolic speech in the First Amendment context, ―’[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.’ ”  (Typed opn. 13, quoting United States v. O’Brien (1968) 391 U.S. 367, 376.)

In three consolidated cases, People v. Gutierrez, Case No. S224724; People v. Ramos, Case No. S224724; and People v. Enriquez, Case No. S240419, the Court directed the parties to brief whether the Court of Appeal erred in upholding the trial court’s denial of defendants’ Batson/Wheeler motions.  In People v. Wheeler (1978) 22 Cal.3d 258, the Court explained, it “held that discrimination in jury selection based on race, ethnicity, or similar grounds offends constitutional guarantees.”  The U.S. Supreme Court later so held in Batson v. Kentucky (1986) 476 U.S. 79.

The three defendants, alleged Latino gang members charged in connection with a shooting, made a Batson/Wheeler motion during jury selection. They contended that “the prosecutor had improperly excluded prospective jurors on account of Hispanic ethnicity, after the prosecutor exercised 10 of 16 peremptory challenges to remove Hispanic individuals from the jury panel.”  The trial court concluded the defendants had set forth a prima facie case, but it denied the defendants’ motion after finding the prosecutor’s proffered reasons to be neutral and nonpretextual. The Court of Appeal affirmed the defendants’ convictions.

The Supreme Court reversed in a unanimous opinion authored by Justice Cuellar.  It held the record did not support the denial of the Batson/Wheeler motion with respect to one prospective juror, a Hispanic female from the same town as one of the defendants.  The Court explained:  “On this record, we are unable to conclude that the trial court made ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation” regarding the decision to strike the juror.  (Typed opn., 26.)  It added, “[t]he court may have made a sincere attempt to assess the [same hometown] rationale, but it never explained why it decided this justification was not a pretext for a discriminatory purpose. Because the prosecutor’s reason for this strike was not self-evident and the record is void of any explication from the court, we cannot find under these circumstances that the court made a reasoned attempt to determine whether the justification was a credible one.” (Ibid.)  The Court held the error to be “structural, damaging the integrity of the tribunal itself.”

The Court further held that the Court of Appeal erred in refusing to conduct a comparative juror analysis.  The Court explained:  “By avoiding comparative juror analysis in this context, the Court of Appeal went against the grain of established holdings from both our court and the high court, which recognize comparisons between panelists who are challenged and those who are not to be valuable tools in determining the credibility of explanations.” (Typed opn., 29.)  The Court added: “We are mindful that comparative analysis is subject to inherent limitations, especially when performed for the first time on appeal.  [Citation.] But it was error for the Court of Appeal to categorically conclude that a court should not undertake a comparative analysis for the first time on appeal — regardless of the adequacy of the record.”  (Id. at pp. 29-30.)

Justice Liu penned a separate 11-page concurrence to “to review key principles of Batson/Wheeler analysis and to make a few observations about the nature of the legal inquiry.”  (Conc. opn. of Liu, J., 1.)  He noted that a Batson/Wheeler analysis “requires a searching review of the record as well as sensitivity to the disproportionate effect that certain reasons — such as the gang-related reasons in this case — may have in excluding members of cognizable groups.”  (Id. at 10.) He also observed that the preponderance of the evidence standard for determining whether a challenge to a juror was improperly motivated “is not designed to elicit a definitive finding of deceit or racism. Instead, it defines a level of risk that courts cannot tolerate in light of the serious harms that racial discrimination in jury selection causes to the defendant, to the excluded juror, and to ‘public confidence in the fairness of our system of justice.’ ” (Id. at p. 11.)

 

 

June 2, 2017

No conference held the week of May 29, 2017

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

May 31, 2017

Criminal threat, Batson/Wheeler opinions filing tomorrow; three more likely on Monday

Tomorrow morning, the Supreme Court will file opinions in People v. Gonzalez and the consolidated cases of People v. Gutierrez, People v. Ramos, and People v. Enriquez.  The cases were argued on the March  calendar.

Gonzalez will decide whether 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.

Gutierrez/Ramos/Enriquez are un-hold cases.  When the court un-held the cases, 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.

The Gutierrez/Ramos/Enriquez matters are among the most procedurally complex on the court’s docket.  Case consolidation, grant-and-hold orders (with different lead cases for the different consolidated cases), un-hold orders, a re-hold order, an un-re-hold order, an un-consolidation order, a re-consolidation order, last-minute changes in which counsel will argue, waivers of oral argument.  See here and the re-docketed Enriquez docket for details.

With the end of the 90-day deadline fast approaching for filing opinions in March calendar cases, there will probably be one more heavy filing day on Monday.  We are thus expecting the court to that day issue opinions in Wheatherford v. City of San Rafael, People v. Parker, and Williams & Fickett v. County of Fresno.

In Wheatherford, the court will address whether a plaintiff must 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 whether the payment of other taxes confer standing.
There have been papers filed in the case after oral argument raising questions about possible mootness.

Parker is an automatic direct appeal from a January 1999 judgment of death.

Williams & Fickett raises these questions:  (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?

The Gonzalez and Gutierrez/Ramos/Enriquez opinions can be viewed tomorrow starting at 10:00 a.m.

The Wheatherford, Parker, and Williams & Fickett opinions probably can be viewed Monday starting at 10:00 a.m.

May 28, 2017

“Standing Her Ground” — LA Times profile of the Chief Justice

Now in her seventh year as California’s Chief Justice, Tani Cantil-Sakauye is the subject of an extensive profile by Maura Dolan in today’s Los Angeles Times.  (The online version includes a 3-minute video of parts of Dolan’s interview with the Chief.)

The piece is subtitled, “She was dismissed as a lightweight, but California’s top judge has found her voice — and uses it to call out Trump policies.”  A substantial part of the article talks about the Chief Justice’s high-profile protests to the federal government about immigration agents making arrests in California courthouses (see also here), and also about her State of the Judiciary address this year when she warned that “the rule of law is being challenged.”

Of more parochial interest to Supreme Court practitioners is this report on the Chief Justice’s suggestion to Governor Jerry Brown concerning his upcoming appointment of a new justice:  “She described the [three] Brown appointees [currently on the court] as ‘incredibly bright people who ask a lot of questions and are careful thinkers.’  Still, none had been a judge, and she said she hopes Brown will name a person with state judicial experience to replace Justice Kathryn Mickle Werdegar, who will retire this summer.”

May 26, 2017

Summary of May 24, 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 May 24, 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

Segovia v. Chipotle Mexican Grill, S241233 – Review Granted and Held – May 24,  2017

In this case, the Supreme Court granted review of the Court of Appeal, Second District, Division Three’s dismissal of an appeal of a wage and hour class action settlement.  In an unpublished opinion, Segovia v. Chipotle Mexican Grill, Inc. (Mar. 2, 2017, B266570), the Court of Appeal held the appellant lacked standing to appeal because, although he was a class member, he did not intervene in the litigation. The Supreme Court has deferred further action pending its decision in Hernandez v. Restoration Hardware, Inc. (2016) 245 Cal.App.4th 651, review granted June 22, 2016, S233983, which presents the following question: “Must an unnamed class member intervene in the litigation in order to have standing to appeal?  (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)”

Review Denied (with dissenting justices)

Wilson v. County of Napa, S241208 – Review Denied [Chin and Corrigan, J, voting for review] – May 24, 2017

The questions presented in this case were: (1) does the “text” of a ballot measure within the meaning of the Elections Code mean only the actual words of the measure and any documents it expressly incorporates, or does “text” also include every cross-referenced provision that arguably creates a “new legal obligation” or is implicitly “enacted”?, and (2) does an initiative petition substantially comply with the Elections Code requirement to attach the “full text of the proposed ordinance” where it accurately sets forth every word of the proposed ordinance but not the text of existing guidelines it cross-references?

The Court of Appeal, First District, Division Three, held in a published opinion Wilson v. County of Napa (2017) 9 Cal.App.5th 178, that (1) the proposed measure did not simply cross-reference another provision of law but would enact those cross-referenced provisions as binding conditions, and (2) that the proposed initiative did not comply with the full text requirement because of the measure’s omission of provisions incorporated by reference.

Depublished

None.

May 26, 2017

“If I couldn’t speak out as chief justice, I don’t know who could”

U.S. News & World Report reports on Chief Justice Tani Cantil-Sakauye’s appearance yesterday at a meeting of the Sacramento Press Club.  [“California Chief Justice:  Governor Brown Still Unpredictable.”]  (Additional coverage in the Los Angeles Times and Capital Public Radio.)

Among other things, the Chief Justice discussed reaction to her high-profile protests to the federal government about immigration agents making arrests in California courthouses.  “There were . . . many telephone calls, mostly from other states, from ‘profane and very angry people.  And I received a lot of letters that said “This is not your job. . . .  This is political.  You shouldn’t be involved in politics.”‘”  She said she also received a lot of support.  ‘If I couldn’t speak out as chief justice, I don’t know who could,’ she said.”

The Chief Justice also commented on Governor Jerry Brown.  She said, “I still don’t know what to expect” from meetings with him, but, “Our relationship is honest.  And he’s always pressing for greater efficiencies (in the state’s court system) — and shorter opinions.”

May 25, 2017

Taxpayers’ elephant-abuse lawsuit fails

In Leider v. Lewis, the Supreme Court today holds that it was the district attorney’s job, not that of a private litigant in a taxpayer action, to ask a trial court to find a city zoo had violated Penal Code statutes proscribing animal abuse.  The taxpayers’ action in this case asked for injunctive and declaratory relief to stop alleged abuse of elephants at the Los Angeles Zoo.  The court’s unanimous opinion by Justice Carol Corrigan states that prosecutorial discretion is a “fundamental tenet of our criminal justice system” that supports a “reluctance to recognize violations of penal statutes as a basis for the issuance of equitable relief on behalf of private parties.”

The opinion also concludes that an earlier appellate opinion in the litigation did not establish a law of the case precluding the defendant from arguing this was an improper taxpayer action.

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

May 25, 2017

Remand order on administrative mandamus petition can be appealable

Resolving what it calls “a long-standing conflict,” the Supreme Court in Dhillon v. John Muir Health today holds to be appealable a superior court order that granted an administrative mandate petition’s request that the matter be remanded for proceedings before an administrative body.  [Disclosure:  Horvitz & Levy is appellate counsel for John Muir Health.]  The court’s unanimous opinion by Justice Leondra Kruger finds to be important that “[t]he issuance of the writ did not definitively resolve the dispute between the parties, but it did mark the end of the writ proceeding in the trial court.”

The court also illuminates the “important differences” in the type of review a party gets on appeal as opposed to an appellate writ petition.  (In the case before it, the appealing party had also challenged the superior court’s remand order by petitioning the Court of Appeal for discretionary writ relief, and the writ petition was summarily denied.)  Only on appeal does a party have the right to oral argument and a written opinion.

The court reverses the First District, Division Three, Court of Appeal.  It disapproves four Court of Appeal decisions:  a 2012 opinion from the First District, Division One; a 2002 opinion from the Second District, Division Two; a 1999 opinion from the Fourth District, Division One; and a 1998 from the Second District, Division Three.

[Updated to include the disclosure.]

May 25, 2017

Supreme Court finds criminal restitution award to be excessive

In People v. Martinez, the Supreme Court today holds a superior court erred in awarding restitution to a crime victim for injuries sustained in an accident involving a defendant who was convicted and sentenced not for any crime involving the causing of the accident, but only for leaving the scene of the accident.  The court’s unanimous opinion by Justice Leondra Kruger interprets a statute as providing that the trial court could “order restitution for those injuries that were caused or exacerbated by defendant’s criminal flight from the scene of the accident, but it was not authorized to award restitution for injuries resulting from the accident itself.”  The court distinguished this limitation from the power of courts to order broader restitution — not directly connected to criminal conduct — as a condition of probation.

The court affirms the Fourth District, Division Two, Court of Appeal.  It disapproves a 2006 opinion of the Fourth District, Division One.

May 24, 2017

Supreme Court grants another posthumous law license, to a civil rights hero

Continuing its effort to right old wrongs, the Supreme Court today grants posthumous honorary membership in the California bar to Sei Fujii, who earned a law degree from USC in 1911, eight years after immigrating from Japan, but who apparently never took the bar exam or applied for bar admission.  The court notes that seeking bar admission at the time “would have been futile” because of anti-Asian federal immigration laws and the court’s own 1890 decision barring Hong Yen Chang — a Chinese immigrant — from practice.  Two years ago, the court renounced its 1890 opinion and posthumously granted Chang his law license.  Now, the court says barring Fujii from law practice “was an injustice that we repudiate today.”

The court’s order recounts the “extraordinary efforts” Fujii took “to apply his education and talents to advancing the rule of law in California,” despite the lack of a law license.  This included a decades-long, and ultimately successful, fight against what the court today calls the “xenophobic” Alien Land Law of 1913.  Fujii was also among the many thousand people of Japanese ancestry whom the government herded into internment camps at the beginning of America’s involvement in World War II.  After federal law changed, he finally became a U.S. citizen in 1954, less than two months before his death.  The court says that “Fujii’s work in the face of prejudice and oppression embodies the highest traditions of those who work to make our society more just.”

The court’s action comes on the motion of the Little Tokyo Historical Society and the Japanese American Bar Association, a motion that was supported by 72 organizations and individuals.

May 24, 2017

Criminal restitution, appealability, taxpayer-lawsuit opinions filing tomorrow

Tomorrow will be one of those expected heavy filing days, as the Supreme Court will file opinions in People v. Martinez, Dhillon v. John Muir Health, and Leider v. Lewis.  All three were argued on the March calendar.

In Martinez, the court will decide whether a defendant, who is convicted of hit-and-run and sentenced to prison rather than placed on probation, can be required to pay restitution for the injuries the victim suffered in the collision.

The question in Dhillon:  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.]

Leider will address these 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?

For the March calendar, that will be three down and five to go by June 5.

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

May 23, 2017

Heavy opinion filing days ahead

The Supreme Court has yet to file any opinions in the eight cases argued on the March calendar.  There are only three regular filing days left within the 90-day deadline for issuing opinions (one Monday, two Thursdays).  Unless the court makes some last-minute supplemental briefing/vacating submission orders, there will be one or two big opinion filing days within the next two weeks.

May 22, 2017

Summary of May 17, 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 May 17, 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

Samara v. Matar, S240918 – Review Granted – May 17, 2017

In a published decision, Samara v. Matar (2017) 8 Cal.App.5th 796, the Court of Appeal, Second District, Division Seven, reversed the lower court’s judgment that a patient’s claim against her doctor’s employer for vicarious liability was barred by claim preclusion.  In a prior appellate decision in the same action, the court had ruled the statute of limitations barred the patient’s malpractice claim against her doctor only, but declined to decide the issue of causation.  Here, the Court of Appeal held that claim preclusion did not apply to the claim against the employer because the patient had sued the doctor and the employer in a single action and therefore the patient did not file successive lawsuits.  It also ruled that issue preclusion did not apply because the court expressly did not reach the issue of causation in the prior decision and thus the court had not decided if the doctor had committed malpractice.

This case includes the following issue: When a trial court grants a summary judgment motion on two alternative grounds, and the Court of Appeal affirms the judgment on only one ground and expressly declines to address the second, does the affirmed judgment have preclusive effect as to the second ground?

Flo & Eddie, Inc. v. Pandora Media, Inc., S240649 – Request to Answer Certified Question Granted – May 17, 2017

In Flo & Eddie, Inc. v. Pandora Media, Inc. (9th Cir. 2017) 851 F.3d 950, the Ninth Circuit certified questions to the Supreme Court in a pending copyright dispute over public performance rights.  The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548.

The questions presented are: “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?”

Atascadero Glass, Inc. v. David A. Bush, Inc., S240818 – Review Granted and Held – May 17, 2017

In an unpublished decision, Atascadero Glass, Inc. v. David A. Bush, Inc. (Feb. 14, 2017, F071426) 2017 WL 589111, the Fifth District Court of Appeal affirmed in part and reversed in part the trial court’s ruling that a contractor for a school construction project had a legal right to withhold retention payments owed to a subcontractor until the subcontractor’s claim for extra work was resolved.  The Court of Appeal held that Public Construction Code section 7107, subdivision(e), which applies to public works of improvement, did not permit withholding of retention payments.  However, the court recognized a split existed among the courts of appeal on this issue.

The Supreme Court ordered briefing deferred pending its decision in United Riggers & Erectors, Inc. v. Coast Iron & Steel Co., S231549, which presents 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?

Review Denied (with dissenting justices)

None.

Depublished

None.

May 18, 2017

Four cases join Prop. 66 challenge on June calendar [UPDATED x 2]

The Supreme Court today announced its June calendar, the last oral argument session before September.  As known yesterday, one of the cases on the calendar is Briggs v. Brown, the writ petition challenging Proposition 66, the initiative to, among many other things, speed up automatic direct death penalty appeals in the Supreme Court.  There are four other cases to be argued in June, including — not without significance — a 16-year-old death penalty appeal.

With the lighter-than-normal late-May calendar, the court will hear only nine cases in the final two weeks before heading into the usual argument-less months of July and August.  During that same two-week period in the last three years, the court heard 19, 18, and 17 cases.  The court usually puts an extra amount of cases into the ready-for-opinion pipeline at the end of the term.  The fewer cases in the pipeline this year will free up some of the justices’ time to work on the opinion(s) in Briggs, time they didn’t have before argument because of the expedited briefing schedule.

The June calendar will be Justice Kathryn Werdegar’s last before she retires at the end of August.

On June 6, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

Briggs v. Brown:  This case presents issues regarding the validity of the Death Penalty Reform and Savings Act of 2016 (Prop. 66, Gen. Elec. (Nov. 8, 2016)).
There are two pro tem justices for the case — Justices Andrea Hoch (Third District Court of Appeal) and Raymond Ikola (Fourth District, Division Three) — because Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused.
This case is a big deal.

American Civil Liberties Union Foundation of Southern California v. Superior Court:  Does information collected by police using “automated license plate readers” – high-speed cameras that automatically scan and record the license plate numbers and time, date and location of every passing vehicle without suspicion of criminal activity – constitute law enforcement “records of . . . investigations” that are permanently exempt from disclosure under the Public Records Act in accordance with Government Code section 6254, subdivision (f)?
In March, the court asked for supplemental briefing concerning whether the catchall exemption of Government Code section 6255, subdivision (a) applies to any or all of the automatic license plate reader (ALPR) data collected by real parties during the one-week period in August, 2012, that is the subject of this court’s review under the California Public Records Act. (Gov. Code, § 6250, et seq.)

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?
Parrish was continued from the April calendar.

People v. Page:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18?

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

[Same day update:  The court has already amended the June calendar, continuing the argument in People v. Page to the September calendar.]

[May 19 update:  While it’s true that the end-of-term calendars are considerably lighter than in previous years, the court is not hearing fewer cases overall.  In fact, reviewing entire-term calendars (September through June), it looks like the court will hear a total of five more cases this term than in 2015-2016.]

May 17, 2017

Prop. 66 case to be argued on June calendar

The Supreme Court hasn’t posted its June calendar yet, but the docket shows that one of the cases to be argued then is Briggs v. Brown, the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative.  The scheduling of the argument is unusually fast, but not surprising.  As with the late-May calendar (which was revised today), the court is giving the minimum 20 days’ notice for the Briggs argument, which will be held on June 6.

May 17, 2017

Rock on! Supreme Court will answer Ninth Circuit’s questions in The Turtles case

The Supreme Court today granted the Ninth Circuit’s request to answer questions about state copyright law in an action brought by the band The Turtles.  The questions are:  “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?”

The answer to the questions might affect a recent settlement in a related class action against Sirius XM Radio.

The Supreme Court is very accommodating of the Ninth Circuit.  It has now denied just one of the Ninth Circuit’s last 17 requests for help deciphering California law, and even the one wasn’t really a denial.

May 15, 2017

SCOTUS shows some interest in gold-mining-limits opinion

Last summer, the California Supreme Court — in People v. Rinehartheld that California’s temporary ban on a particular method of gold mining pending adoption of suitable regulations is not preempted by federal law, including the Mining Law of 1872.  The defendant petitioned the U.S. Supreme Court for certiorari.  The petition has the high court’s attention, as demonstrated by the court’s invitation today to the Acting Solicitor General to file a brief expressing the views of the United States about the case.

SCOTUS might take this case.  Besides raising a question of federal preemption, another enticing factor is that the California Supreme Court disagreed with an Eighth Circuit Court of Appeals decision.

 

May 12, 2017

Summary of May 10, 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 May 10, 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

Mathews v. Harris, S240156 – Review Granted – May 10, 2017

In a published decision, Mathews v. Harris (2017) 7 Cal.App.5th 334, the Court of Appeal, Second District, Division Two, affirmed the trial court’s judgment that a provision of the Child Abuse and Neglect Reporting Act (CANRA), requiring therapists to report patient disclosures that they have accessed child pornography, did not violate patients’ constitutional rights to privacy.  The court determined no fundamental right existed in this case, and CANRA satisfied the rational basis test because the state had a legitimate interest in identifying and protecting sexually abused children.

This case includes the following issues: (1) Does a psychotherapy patient have a constitutional right of privacy in seeking psychotherapeutic treatment, even if the treatment entails a communication with a psychotherapist that refers to conduct constituting a crime? (2) Does the Child Abuse and Neglect Reporting Act (Pen. Code, § 11164 et seq.) violate a patient’s rights under the California Constitution by compelling disclosure of communications demonstrating “sexual exploitation,” which includes, among other things, downloading, streaming, and accessing through any electronic or digital media a depiction of a child engaged in an act of obscene sexual conduct?

Daniel v. Wayans, S240704 – Review Granted and Held – May 10, 2017

In a published decision, Daniel v. Wayans (2017) 8 Cal.App.5th 367, the Court of Appeal, Second District, Division One, affirmed the trial court’s order granting a special motion to strike an actor’s complaint that alleged defendant had racially harassed the actor while filming a movie.  The trial court held that filming of the movie constituted an act of free speech protected under the anti-SLAPP statute, the film concerned an issue of public interest within the statute’s protection, and that plaintiff failed to meet his burden of prevailing on the merits.

The Supreme Court ordered briefing deferred pending its decision in Park v. Board of Trustees of California State University, S229728, which was decided on May 4, but is not yet final.  In Park, the Court held, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

In re Samantha D., S240694 – Review Granted and Held – May 10, 2017

The Court of Appeal, Second District, Division Four, affirmed orders in a juvenile dependency proceeding in a nonpublished opinion, In re Samantha D., B270405.  The Supreme Court ordered briefing deferred pending decision in In re R.T., S226416, which presents the following issue:  Does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

Review Denied (with dissenting justices)

None.

Depublished

None.

May 10, 2017

Relatively small late-May calendar announced [UPDATED]

The Supreme Court today announced its late-May calendar.  Five cases will be argued, which is not out of the ordinary for most calendars, but is on the light side for late May.  The calendar was announced with the minimum 20 days’ notice.

Not on the calendar is Briggs v. Brown, the writ proceeding challenging Prop. 66.  It could still be argued on the June calendar, the week after the late-May calendar.

On May 30, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

California Cannabis Coalition v. City of Upland:  Is a proposed initiative measure that would impose a tax subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election?

Rubenstein v. Doe No. 1:  For the purpose of the distinction between felony and misdemeanor forgery, is the value of an uncashed forged check the face value (or stated value) of the check or only the intrinsic value of the paper it is printed on?

F. P. v. Monier:  Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se?

People v. Pennington:  Did the People prove that the named victim, a harbor patrol officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant’s conviction for battery on a peace officer?
This is not a sua sponte grant of review case, but it’s in the neighborhood.  The defendant filed a rule 8.508 petition for review, which is “an abbreviated petition . . . for the sole purpose of exhausting state remedies before presenting a claim for federal habeas corpus relief.”  Defendant’s counsel was looking to get his card stamped on the way to federal district court, but, probably much to his surprise, he will be arguing his case to the Supreme Court in less than three weeks.

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

[May 17 update:  The relatively light late-May calendar just got a bit lighter as the court today continued F. P. v. Monier to the September calendar.]

May 8, 2017

Supreme Court clarifies day of rest statutes in response to Ninth Circuit’s certified questions

In Mendoza v. Nordstrom, Inc., the Supreme Court today answered certified questions of state law from the U.S. Court of Appeals for the Ninth Circuit concerning the operation of California’s day of rest statutes, Labor Code sections 550 through 558.1.  In a unanimous opinion by Justice Kathryn Werdegar, the Court gave the following answers to the Ninth Circuit’s questions:

  • “A day of rest is guaranteed for each workweek. Periods of more than six consecutive days of work that stretch across more than one workweek are not per se prohibited.”
  • “The exemption for employees working shifts of six hours or less applies only to those who never exceed six hours of work on any day of the workweek. If on any one day an employee works more than six hours, a day of rest must be provided during that workweek, subject to whatever other exceptions might apply.”
  • “An employer causes its employee to go without a day of rest when it induces the employee to forgo rest to which he or she is entitled. An employer is not, however, forbidden from permitting or allowing an employee, fully apprised of the entitlement to rest, independently to choose not to take a day of rest.”

Under the decision, the Court concluded that Labor Code sections 551 and 552, “fairly read in light of all the available evidence, are most naturally read to ensure employees at least one day of rest during each week, rather than one day in every seven on a rolling basis.”  The Court was “unpersuaded by the concern that this reading of the statutory scheme will permit employers regularly to impose on employees schedules in which they may rest no more than one day in 12.” The Court also rejected the argument that the “the general employee-protective thrust of the Labor Code” compelled adoption of the interpretation favored by the plaintiffs.  The Court concluded that “the Legislature intended to ensure employees, as conducive to their health and well-being, a day of rest each week, not to prevent them from ever working more than six consecutive days at any one time.”

But the Court further held that the plaintiffs had the better argument with respect to the “six-hour day” exception of Labor Code section 556, which provides that “[s]ections 551 and 552 shall not apply to any employer or employee when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.”   The Court ruled, “[c]onsistent with the import of the complete text of section 556 and the views of the relevant state agencies,” that “the six hours or less daily exception is satisfied only if every daily shift that week has entailed six hours or less of work.”

With respect to the meaning of “cause” under Labor Code section 552, which provides that an employer may not “cause his employees to work more than six days in seven,” an employer‘s “obligation is to apprise employees of their entitlement to a day of rest and thereafter to maintain absolute neutrality as to the exercise of that right. An employer may not encourage its employees to forgo rest or conceal the entitlement to rest, but is not liable simply because an employee chooses to work a seventh day.”

In the proceedings that preceded the Ninth Circuit’s issuance of certified questions, the federal district court held a bench trial on the plaintiffs’ day of rest claims. It concluded: (1) “Labor Code section 551 guarantees a day of rest on a rolling basis, for any seven consecutive days”; but (2) “under section 556, the guarantee does not apply so long as an employee had at least one shift of six hours or less during the period,” as the plaintiffs did; and (3) the defendant employer “did not cause [the plaintiffs] to work more than six consecutive days because it did not force or coerce them to do so.”

May 5, 2017

No conference held the week of May 1, 2017

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

May 5, 2017

Employment opinion filing Monday

As expected, the Supreme Court on Monday will file its opinion in Mendoza v. Nordstrom, Inc., the last undecided case argued on the February calendar.

At the Ninth Circuit’s request, the court will answer these questions in Mendoza:  “(A) California Labor Code section 551 provides that ‘[e]very person employed in any occupation of labor is entitled to one day’s rest therefrom in seven.’  Is the required day of rest calculated by the workweek, or is it calculated on a rolling basis for any consecutive seven-day period?  (B) California Labor Code section 556 exempts employers from providing such a day of rest ‘when the total hours of employment do not exceed 30 hours in any week or six hours in any one day thereof.’  (Emphasis added.)  Does that exemption apply when an employee works less than six hours in any one day of the applicable week, or does it apply only when an employee works less than six hours in each day of the week?  (C) California Labor Code section 552 provides that an employer may not ’cause his employees to work more than six days in seven.’  What does it mean for an employer to ’cause’ an employee to work more than six days in seven:  force, coerce, pressure, schedule, encourage, reward, permit, or something else?”

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

May 4, 2017

Supreme Court limits reach of anti-SLAPP motions

The Supreme Court today holds in Park v. Board of Trustees of the California State University that California’s anti-SLAPP statute, which allows for an early screening of claims that could chill constitutionally protected free speech or petition rights, does not cover as many lawsuits as some Courts of Appeal had found.  The court’s unanimous opinion by Justice Kathryn Werdegar states, “a claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”

Under the decision, a college professor’s tenure discrimination action can proceed, at least without being subject to an anti-SLAPP motion.  The court explained, “while discrimination may be carried out by means of speech, such as a written notice of termination, and an illicit animus may be evidenced by speech, neither circumstance transforms a discrimination suit to one arising from speech.  What gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden, on account of a discriminatory or retaliatory consideration.”  It is proper, the court says, to “differentiat[e] between individual speech that contributes to a public entity’s decision and the public entity decision itself.”

The court reverses a divided opinion by the Second District, Division Four, Court of Appeal.  It disapproves a 2015 decision of the Fourth District, Division One, and a 2012 decision of the Fourth District, Division Two, both of which, the court concludes, “overread” a 2006 Supreme Court opinion applying the anti-SLAPP statute in a case concerning hospital peer review proceedings.  The court also disapproves a 2011 decision by the Fourth District, Division Two.