July 27, 2015

Where there’s a will . . . there might be a need for extrinsic evidence, Supreme Court says

A unanimous Supreme Court today overturns longstanding precedent that had precluded the admissibility of extrinsic evidence to reform an unambiguous will.  In an opinion written by Chief Justice Tani Cantil-Sakauye, the court holds that “the categorical bar on reformation of wills is not justified, and . . . that an unambiguous will may be reformed if clear and convincing evidence establishes that the will contains a mistake in the expression of the testator’s intent at the time the will was drafted and also establishes the testator’s actual specific intent at the time the will was drafted.”  The court thus remands the case — Estate of Duke — to the probate court to make the clear and convincing evidence determination.

Of interest generally and beyond the probate field, the court’s opinion discusses the circumstances where the Legislature, despite having enacted related statutes, has left room for the courts to change the common law.  The court says that the history of legislation concerning the admissibility of evidence of a testator’s intent does not “suggest[ ] that the Legislature intended to foreclose further judicial developments of the law concerning the admissibility of evidence to discern the testator’s intent, and ‘we see no reason to interpret the legislation as establishing a bar to judicial innovation.’ ”

The Supreme Court reverses the Second District, Division Four, Court of Appeal, but you can’t hold this one against the lower court — it was following the Supreme Court precedent that today’s opinion overrules.

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July 25, 2015

Sometimes you need more friends

Sixteen months ago, the Supreme Court agreed to answer for the Ninth Circuit several questions regarding California Wage Orders that require the provision of suitable seating to employees.  The case — Kilby v. CVS Pharmacy, Inc. — has attracted seven different amicus curiae briefs.  For the Supreme Court, however, EightIsEnough_S3Pt2apparently only eight is enough.  On Wednesday, the court invited the Division of Labor Standards Enforcement to file an amicus curiae brief expressing its views on the Ninth Circuit’s questions.

July 25, 2015

Summary of July 22, 2015 conference report for civil cases

The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, July 22, 2015. 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

California Building Industry Assn. v. State Water Resources Control Bd., S226753—Review Granted—July 22, 2015

Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate.  This case presents the following issues:  (1) Does Water Code section 181 permit the State Water Resources Control Board to approve its annual fee under the waste discharge permit program by a majority of the quorum?  (2) Does Proposition 26 apply to the waste discharge permit program fee?  (3) Does the Board have the initial burden of demonstrating the validity of its fee?  (4) Is the fee, which is based on balancing the fees and costs of the waste discharge permit program, an invalid tax unless it separately balances the fees and costs of each of the eight program areas within the program?

In a published decision, California Building Industry Assn. v. State Water Resources Control Bd. (2015) 235 Cal.App.4th 1430, the First District, Division Two, Court of Appeal affirmed the denial of an administrative mandate petition filed by the California Building Industry Association (CBIA), a petition that challenged the increase by the State Water Resources Control Board of an annual waste discharge permit fee.  The court agreed with the Board that two of the three sitting board members could approve the increase even though there were two vacancies on the five-member board, that the fee increase was not excessive, that Proposition 26 did not require a two-thirds vote of the Legislature to approve the fee increase, and that the Board did not have the initial burden of showing the fee was valid.

Delano Farms Co. v. California Table Grape Com., S226538—Review Granted—July 22, 2015

Petition for review after the Court of Appeal affirmed the judgment in a civil action.  This case presents the following issue:  Under Article 1, section 2, subdivision (a), of the California Constitution, can the California Table Grape Commission compel unwilling produce growers to contribute for generic commercial advertising?

In a published opinion, Delano Farms Co. v. California Table Grape Com. (2015) 235 Cal.App.4th 967, the Fifth District Court of Appeal affirmed the trial court’s summary judgment in favor of the California Table Grape Commission.  Grape producers challenged the constitutionality of assessments imposed on all shipments of California table grapes, assessments that fund advertising, marketing, education, research, and government relations efforts to aid the producers.  The Court of Appeal held that the Commission’s promotional activities constituted government speech and that the assessments survive both intermediate scrutiny and rational basis review and are a valid exercise of the state’s police power.

BNSF Railway Co. v. Superior Court, S226284—Review Granted and Held—July 22, 2015

Petition for review after the Court of Appeal granted a petition for peremptory writ of mandate.  The court ordered briefing deferred pending decision in Bristol-Myers Squibb Co. v. Superior Court, S221038, which presents the following issues:  (1) Did the plaintiffs in this action who are not residents of California establish specific jurisdiction over their claims against the nonresident pharmaceutical drug manufacturer?  (2) Does general jurisdiction exist in light of Daimler AG v. Bauman (2014) 571 U.S. __ [134 S.Ct. 746, 187 L.Ed.2d 624]?

In a published opinion, BNSF Railway Co. v. Superior Court (2015) 235 Cal.App.4th 591, the Second District, Division Four, Court of Appeal granted a writ petition and ordered the trial court to quash service of process for lack of general personal jurisdiction.  The plaintiffs in the underlying asbestos exposure case were the survivors of a deceased employee who had worked in Kansas for a Texas-based railway company incorporated in Delaware.  The Court of Appeal concluded that general jurisdiction was lacking because, although the company transacted substantial business in California, such business was a relatively small portion of its overall operations.

Review Denied (with dissenting justices)
None.

Depublished
None.

July 24, 2015

Will interpretation opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Estate of Duke, which was argued on the late-May calendar.  We could see a precedent shift in Duke, which raises the issue whether the “four corners” rule (see Estate of Barnes (1965) 63 Cal.2d 580) should be reconsidered in order to permit drafting errors in a will to be reformed consistent with clear and convincing extrinsic evidence of the decedent’s intent.

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

July 20, 2015

Supreme Court makes it harder to get relief from default

The Supreme Court’s opinion today in Even Zohar Construction and Remodeling, Inc. v. Bellaire Townhouses, LLC makes it a bit more difficult for defendants in civil cases to get relief from default.  In a unanimous decision written by Justice Kathryn Werdegar, the court holds that a renewed application for relief under Code of Civil Procedure section 473 based on attorney fault must comply with Code of Civil Procedure section 1008’s requirement of “showing what ‘new or different facts, circumstances, or law are claimed’ . . . to justify the renewed application, and show[ing] diligence with a satisfactory explanation for not presenting the new or different information earlier.”

The court construes the two statutes and finds them to not be in conflict.  By the way, if you’re looking for a decision interpreting what “whenever” means, this opinion is for you.

The Supreme Court affirms the Second District, Division Four, Court of Appeal, which had reversed a superior court order granting relief from default.  It also disapproves three Court of Appeal opinions:  a 2010 opinion from the Sixth District (a case in which the Supreme Court denied review, with Justice Carol Corrigan recording a vote to grant), a 2010 opinion from the Fourth District, Division Two (review was also denied in that case), and a 2002 opinion from the Second District, Division Seven (which the Supreme Court had already disapproved once before).

July 20, 2015

“Living separate and apart” means separate residences for community property purposes

Spouses living separate lives in the same residence are still living together for purposes of determining whether acquired property belongs to the marital community, the Supreme Court holds today.  A statute provides that property is the separate property of a spouse who gets it “while living separate and apart from the other spouse.”  In its opinion in In re Marriage of Davis, the court concludes that “[t]he statute requires the spouses to be living in separate residences in order for their earnings and accumulations to be their separate property.”

The court’s unanimous opinion, authored by Chief Justice Tani Cantil-Sakauye, traces the statutory language to legislation enacted in 1870, legislation the court finds “was intended to afford married women some additional protection from the rigors of the law generally denying them control over their earnings and separate property.”  Justice Goodwin Liu, joined by Justice Kathryn Werdegar, writes a concurring opinion to address an issue the lead opinion expressly declines to decide.  Both Liu and Werdegar signed the court’s opinion, but they stress that legislative history does not preclude spouses living under the same roof from “living separate and apart” for purposes of the statute.  According to them, spouses can be living separate and apart if they “have a living arrangement that clearly and objectively signals a complete and final termination of the marital relationship.”

Liu and Werdegar are less charitable to the 1870 Legislature than is the lead opinion.  While the court characterizes the legislation as giving married women “some additional protection,” the concurring opinion notes that the Legislature could have given even more protection, but that would have come “at the expense of the male-controlled property regime, and there is no indication that the Legislature in 1870 had any interest in fundamentally changing that regime.”

The court reverses the First District, Division One, Court of Appeal.  It also approves of a divided 2002 Sixth District opinion.

July 19, 2015

Summary of July 15, 2015 conference report for civil cases

The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, July 15, 2015. 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

Association of California Ins. Companies v. Jones, S226529—Review Granted—July 15, 2015

This case presents the following issues:  (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act?  (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance?  The court specifically directed the parties to brief the second issue.

The Insurance Commissioner promulgated a regulation under the authority of the Unfair Insurance Practices Act (UIPA), Insurance Code sections 790-790.15 that controls the way property insurers communicate replacement cost information to homeowners.  The Association of California Insurance Companies and the Personal Insurance Federation of California brought an action challenging the validity of the regulation.  The trial court granted a declaratory judgment that the Commissioner did not have the authority to issue the regulation and the Court of Appeal, Second District, Division One, affirmed in a published opinion, Association of California Insurance Companies et al. v. Jones (2015) 235 Cal.App.4th 1009.  The court reasoned that (1) the UIPA, read as a whole, did not give the Commissioner authority to promulgate the regulation, (2) the Commissioner’s reliance on section 790.10 did not sufficiently credit other portions of the UIPA and was not consistent with the structure of the UIPA, and (3) the legislative evolution of the UIPA as well as other sections in the Insurance Code supported the conclusion that the Commissioner was without authority to promulgate the regulation.

Flethez v. San Bernardino County Employees Retirement Association, S226779—Review Granted—July 15, 2015

This case includes the following issue:  If a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, is prejudgment interest under Code of Civil Procedure section 3287 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?

Plaintiff, a former county employee, petitioned for writ of mandamus seeking retroactive disability retirement.  The trial court granted the petition and awarded prejudgment interest from the time of the employee’s last day of regular compensation.  In a published opinion, Flethez v. San Bernardino County Employees Retirement Association (2015) 236 Cal.App.4th 65, the Court of Appeal, Fourth District, Division One, reversed, holding that a retiring member is entitled to recover prejudgment interest from the day on which his or her right to recover those benefit payments became vested, i.e. after filing an application for disability retirement benefits and proving entitlement thereto.

Boyce v. T.D. Service Co., S226267—Review Granted & Held—July 15, 2015

The court ordered briefing deferred pending decision in Yvanova v. New Century Mortgage Corp., S218973, which presents the following issue:  In an action for wrongful foreclosure on a deed of trust securing a home loan, does the borrower have standing to challenge an assignment of the note and deed of trust on the basis of defects allegedly rendering the assignment void?

A $1.155 million promissory note, secured by a deed of trust on the house of appellant and his wife, was transferred to Wells Fargo Bank.  Appellant then made payments for three and a half years, but stopped making payments and later filed for bankruptcy.  Wells Fargo subsequently purchased the property and brought an unlawful detainer action to evict appellant.  The bankruptcy judge allowed the foreclosure to go forward and rejected appellant’s theory of “wrongful foreclosure.”  Thereafter, appellant sued everyone involved with the loan.  The trial court sustained demurrers based on res judicata principles and the Court of Appeal, Second District, Division Six, affirmed in a published decision, Boyce v. T.D. Service Company (2015) 235 Cal.App.4th 429.  The court held that the borrower lacked standing to challenge foreclosure on the basis that purported assignments of the note and deed of trust had been made after the mortgage investment pools closed, since the assignments did not change the borrower’s obligations on the note.

Review Denied (with dissenting justices)

Glassner v. Smith, S227057—Review Denied [Werdegar, J., voting for review]—July 15, 2015

The issue was whether the trial court erred in granting motions to strike — under the anti-SLAPP statute, Code of Civil Procedure section 425.16 — as to one defendant but not as to the remaining defendants.

Plaintiff, a homeowners’ association board member, sued for defamation concerning statements made about him on a website and at a board meeting during a dispute between association members.  Defendants moved to strike the complaint under the anti-SLAPP statute.  The trial court granted the motion as to one defendant, but otherwise denied the motion.  In an unpublished opinion, Glassner v. Smith (2015, A140876), the Court of Appeal, First District, Division One, ruled for all the defendants.  The court reasoned that plaintiff failed to show a probability of prevailing on his defamation claims.

Depublished
None.

July 17, 2015

Retired judge criticizes newest Supreme Court justices for death penalty reversals

In an op-ed piece in yesterday’s Daily Journal [subscription], a retired superior court judge expresses his displeasure with US Supreme Court Justice Stephen Breyer’s recent dissent in Glossip v. Gross, a separate opinion that was joined by Justice Ruth Bader Ginsburg and that questioned the death penalty’s constitutionality.  While he was at it, the retired jurist also threw in some digs at California Supreme Court Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger.  They were cheap shots.

The op-ed piece says, “The state Supreme Court and its three new, inexperienced justices who have never tried or presided over any trial, and unaware or familiar with California legal history, have already reversed five death penalty cases. . . . Perhaps the new members of the court have been reading cases from the 9th Circuit undermining the death penalty for the last decade, or subscribe to the Justice Stephen Breyer model:  dispense with precedent and impose personal opinion.”  It goes on to ridicule “court opinions written by judges who have never tried a case and sit on an appellate level justifying reversals in academic language jurors would have ignored.”

Singling out the three newest justices for criticism is misleading at best.  It takes more than three to make a majority on the court.  And, indeed, unmentioned in the op-ed is that all five of the death penalty reversals to which the piece apparently refers were unanimous decisions.  (See here, here, here, and here.)  Also not mentioned is that none of the five opinions were “written by judges who have never tried a case” — four were authored by Justice Carol Corrigan, who was a Senior Deputy District Attorney and Deputy District Attorney for a dozen years and a trial judge for seven years; one was written by Justice Ming Chin, who was a trial judge for over two years.  Finally, two of the five opinions were issued before Justices Cuéllar and Kruger were even on the court.

Instead of factually inaccurate ad hominem attacks, critics of California Supreme Court decisions should address the merits of the decisions themselves.  The closest the op-ed piece comes to doing that is to grudgingly concede that two of the five death penalty reversals “are arguably correct.”

July 17, 2015

Family law, relief-from-default-reconsideration opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases argued on the early-May calendar.  This will leave Sanchez v. Valencia Holding Co. as the only case from that calendar without an opinion (that opinion is due August 3).

Marriage of Davis will decide whether, for the purpose of establishing the date of separation under Family Code section 771, a couple may be “living separate and apart” when they reside in the same residence.

Even Zohar Construction and Remodeling, Inc. v. Bellaire Townhouses, LLC raises the question:  Do the requirements of Code of Civil Procedure section 1008, subdivision (b), which govern motions to renew previously denied motions, apply to renewed motions under Code of Civil Procedure section 473, subdivision (b), for relief from default judgment?

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

July 16, 2015

Ninth Circuit upholds Supreme Court-approved death sentence

The Ninth Circuit today affirms the denial of habeas corpus relief to a death row inmate whose death penalty sentence was affirmed by the California Supreme Court nine years ago in People v. Boyer (2006) 38 Cal.4th 412.  In Boyer v. Chappell, the appeals court applies a deferential standard of review to the Supreme Court’s decision — ” ‘[a] state court’s determination that a claim lacks merit precludes federal habeas relief so long as “fairminded jurists could disagree” on the correctness of the state court’s decision.’ ”  In another death penalty habeas case decided today by the Ninth Circuit, the Nevada Supreme Court does not fare as well.

July 15, 2015

“The Biggest Calif. Court Decisions So Far In 2015″

Erin Coe reports for Law360.com [subscription] on the top half of the Supreme Court’s calendar year, discussing “five significant rulings from the first six months of 2015.”  The five decisions are In re Cipro Cases I & II (2015) 61 Cal.4th 116, California Building Industry Association v. City of San Jose (2015) 61 Cal.4th 435, Richey v. AutoNation, Inc. (2015) 60 Cal.4th 909, Williams v. Chino Valley Independent Fire District (2015) 61 Cal.4th 97, and In re Hong Yen Chang (2015) 60 Cal.4th 1169.

It’s interesting that no criminal or habeas corpus cases are mentioned.  An argument could be made that the list could include In re Taylor (2015) 60 Cal.4th 1019 (throwing into doubt the constitutionality throughout the state of the residency restriction for registered sex offenders) or People v. Superior Court (Johnson) (2015) __ Cal.4th __ [2015 WL 4069243] (concerning the process for disclosure of defendant-favorable evidence in police personnel files).

 

July 13, 2015

Supreme Court approves separate lawsuits against jointly and severally liable parties, clears up “confusion” about the difference between “claim” and “issue” preclusion

In a unanimous opinion by Justice Carol Corrigan, the Supreme Court today “clarif[ies] a bedrock principle of contract law,” concluding that “[p]arties who are jointly and severally liable on an obligation may be sued in separate actions.”  The opinion in DKN Holdings LLC v. Faerber reverses the Fourth District, Division Two, Court of Appeal, which had held that “[j]oint and several obligors may not be sued in separate actions when . . . the claim or claims against them are barred by a prior judgment under the claim preclusion aspect of the res judicata doctrine.”  The Supreme Court disagrees that the claim preclusion doctrine overrides the joint and several liability doctrine:  “Judgment in the first action does not bar judgments in later actions, even when they allege the same claim of wrongdoing, as long as the suits are against different parties.”

The Court of Appeal said that part of a 1957 Supreme Court decision was wrong and “incorrectly states the law.”  The Supreme Court does not appreciate the criticism, stating that the Court of Appeal “erred” and pointing out that “[t]he principle it rejected is fundamental to the concept of joint and several liability and is set out in the Restatements of both Contracts and Judgments.”

This should have been “an easy case,” the Supreme Court says, although the court goes on to blame itself for possibly causing confusion by previously using inconsistent “terminology in discussing the preclusive effect of judgments.”  From now on, the court pledges to “follow the example of other courts and use the terms ‘claim preclusion’ to describe the primary aspect of the res judicata doctrine and ‘issue preclusion’ to encompass the notion of collateral estoppel.”

July 12, 2015

Summary of July 8, 2015 conference report for civil cases [UPDATED]

The following is a summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, July 8, 2015. 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

County of Los Angeles Board of Supervisors v. Superior Court, S226645—Review Granted—July 8, 2015

The case presents the following issue:  Are invoices for legal services sent to the County of Los Angeles by outside counsel within the scope of the attorney-client privilege and exempt from disclosure under the California Public Records Act (CPRA), even with all references to attorney opinions, advice, and similar information redacted?

The ACLU of Southern California petitioned for mandamus under the CPRA to compel the Los Angeles County Board of Supervisors and the Los Angeles County Counsel to release invoices from outside attorneys used in connection with nine lawsuits brought by inmates alleging violence by the Sheriff’s Department.  The superior court granted the petition, but the Court of Appeal reversed in a published opinion.  In Los Angeles County Bd. of Supervisors v. Superior Court (2015) 235 Cal.App.4th 1154, the Second District, Division Three, concluded that the invoices were confidential communications protected from disclosure by the attorney-client privilege.
[Update and Disclosure:  Horvitz & Levy filed an amicus curiae letter in the Court of Appeal on behalf of the Association of Southern California Defense Counsel in support of the Board of Supervisor’s writ petition.]

Szanto v. Szanto, S226726—Review Granted and Held—July 8, 2015

The court ordered briefing deferred pending decision in John v. Superior Court, S222726, which presents the following issue:  Must a defendant who has been declared a vexatious litigant and is subject to a prefiling order (Code Civ. Proc., § 391.7, subd. (a)) obtain leave of the presiding judge or justice before filing an appeal from an adverse judgment?

The defendant had previously been deemed a vexatious litigant who must obtain court approval before filing new litigation.  He applied for approval to appeal an adverse judgment, but the Court of Appeal, First District, Division Five, denied his application and dismissed his appeal.

Pouzbaris v. Prime Healthcare Services-Anaheim, S226846—Review Granted and Held—July 8, 2015

The court granted review, but ordered briefing deferred pending decision in Flores v. Presbyterian Intercommunity Hospital, S209836, which presents the following issues:  (1) Does the one-year statute of limitations for claims under the Medical Injury Compensation Reform Act (Code Civil Proc., § 340.5) or the two-year statute of limitations for ordinary negligence (Code Civil Proc., § 335.1) govern an action for premises liability against a hospital based on negligent maintenance of hospital equipment?  (2) Did the injury in this case arise out of “professional negligence,” as that term is used in section 340.5, or ordinary negligence?

A hospital patient slipped and fell on a recently mopped floor that lacked any warning signs.  She sued the hospital almost two years later.  Reversing a summary judgment for the hospital in a published opinion, Pouzbaris v. Prime Healthcare Services-Anaheim, LLP (2015) 236 Cal.App.4th 116, the Court of Appeal, Fourth District, Division Three, held that the patient’s claims were governed by the two-year limitations period for ordinary negligence, rather than the one-year period for professional negligence.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 10, 2015

Joint and several liability opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in DKN Holdings LLC v. Faerber, which was argued on the court’s jumbo late-May calendar.  The case raises these questions:  (1) Can parties who are jointly and severally liable on an obligation be sued in separate actions?  (2) Does the opinion of the Court of Appeal in this case conflict with the opinion of this court in Williams v. Reed (1957) 48 Cal.2d 57?

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

July 9, 2015

“New justices seen in court’s subtle changes”

John Roemer reports in today’s Daily Journal [subscription] about a change in the Supreme Court’s grant-and-hold policy in criminal cases, a change he attributes to the two newest justices, Mariano-Florentino Cuéllar and Leondra Kruger.  Previously, instead of granting review and deferring action in cases raising criminal law issues that were already before the court in other matters, the court would deny review, forcing the defendant to file a separate habeas corpus petition to take advantage of any favorable decision in the pending case.  Now, the court is using the grant-and-hold procedure, remanding the held case to the Court of Appeal when appropriate for reconsideration in light of the opinion in the lead case.  At yesterday’s conference, for example, the court issued grant-and-hold orders in 10 criminal cases.

The article quotes the court’s chief supervising attorney Jake Dear as saying that “[s]ome changes [in court policy] are triggered by external inquiries about long employed procedures that may deserve to be rethought.  When you have new justices and staff coming on to the court, you get even more questions about why things are done in a certain way.  Sometimes, in giving an explanation, people realize there should be changes.  When new people join the court, it can be a very productive and invigorating time.”

The new policy should make things easier for the parties and for the lower courts who would otherwise be dealing with separate habeas petitions, although it might add a bit to the Supreme Court’s workload because the court will need to evaluate the appropriate disposition for more grant-and-hold cases.  It will also give the Supreme Court additional flexibility.  The court occasionally un-holds a grant-and-hold case and asks for briefing in that case.  However, there can be no further briefing in a case in which the petition for review has already been denied.  By increasing the number of grant-and-holds, the court keeps more of its options open.

July 9, 2015

Supreme Court limits LWOP accomplice felony-murder in one case, and affirms death sentence in another

The Supreme Court today issues two opinions, affirming a death sentence in one and, in another, giving some relief to a defendant who had been sentenced to life without parole under the felony-murder doctrine.

In People v. Banks, the court’s unanimous opinion by Justice Kathryn Werdegar holds there is no substantial evidence to support a special circumstance finding that led to a life-without-parole sentence.  The defendant was a getaway driver for an armed robbery in which someone else shot a robbery victim.  Even though the prosecution did not seek the death penalty against the defendant, the court interprets California’s statute (enacted by Proposition 115 in 1990) — which provides the special circumstances under which a defendant can be sentenced to death or, at a minimum, life without parole — as being limited by federal constitutional constraints placed on sentencing felony-murder participants to death.  After examining US Supreme Court precedent, the state high court concludes the defendant “is statutorily ineligible for life imprisonment without parole” because he did not meet what it considers to be the constitutional test:  “felony-murder participants [are] eligible for death only when their involvement is substantial and they demonstrate a reckless indifference to the grave risk of death created by their actions.”  The opinion reverses the Second District, Division Two, Court of Appeal.

This is the second time in the last two months that the court has reversed a factual finding based on a lack of substantial evidence.

In a unanimous opinion written by Chief Justice Tani Cantil-Sakauye, the court also today affirms a death sentence in People v. Johnson.  The defendant was sentenced to death for two murders, but the court affirms just one, reversing one death sentence because it was imposed for a second degree murder.  The court also sets aside a kidnap-murder special circumstance finding because of instructional error.  Among other things, the court — in a lengthy analysis — rejects the defendant’s Batson claim that the peremptory removal of three African-American prospective jurors was racially motivated, a hot-button issue at the court.

 

July 8, 2015

Felony-murder LWOP, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two criminal cases from the early-May calendar.

In People v. Banks, where the defendant was sentenced to life without parole for aiding and abetting a felony that resulted in a murder, the court will address these questions:  (1) Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2, subdivision (d)?  (2) Does the true finding on the special circumstance violate due process?  (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)

The court will also decide People v. Johnson, not to be confused with the recently decided People v. Johnson or People v. Superior Court (Johnson).  This People v. Johnson is an automatic appeal from an April 2002 judgment of death.

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

July 7, 2015

“A setback for due process”

The Los Angeles Times doesn’t like yesterday’s Supreme Court decision in People v. Superior Court (Johnson) limiting the prosecution’s access to police personnel files that, the paper says, interferes with the prosecution’s constitutional duty to disclose exculpatory evidence to defendants.  “[T]he police should not be expected to be their own watchdogs.”

July 6, 2015

Supreme Court limits prosecution’s Brady duty regarding police personnel records, puts burden on defense counsel to make Pitchess motions

In People v. Superior Court (Johnson), a unanimous Supreme Court today maintains protections for confidential police officer personnel files and puts the burden on defense counsel to obtain possibly exculpatory evidence from those files.  The opinion, written by Justice Ming Chin, explains the procedure for when a police department tells the prosecution that an officer’s personnel file might contain evidence favorable to a criminal defendant.

Under the court’s opinion, the prosecution “does not have unfettered access” to the file, but must make a Pitchess motion to look at the file.  On the other hand, to fulfill its duty under Brady to disclose exculpatory evidence to the defendant, the prosecution is now not required to file a Pitchess motion or look at the file at all; it only needs to pass on the police department’s tip to the defendant who can then decide whether to file his or her own Pitchess motion.  The court states that “the prosecution has no Brady obligation to do what the defense can do just as well for itself.”  The court presaged this result when, seven weeks after granting review, it specifically asked the parties to brief the viability of the procedure it adopts today.

The court’s opinion reverses the First District, Division Five, Court of Appeal.  It also approves of a 2014 decision on a related issue by the Fourth District, Division One, Court of Appeal.

The Supreme Court moved relatively quickly on this case.  Today’s opinion comes just a little more than eight months after the court granted review.

July 4, 2015

Ninth Circuit asks (will ask?) Supreme Court to interpret an insurance policy [UPDATED]

The Ninth Circuit wants help construing an insurance policy and it’s hoping the California Supreme Court will do that work for it.  So says an order requesting the Supreme Court to answer a question of California law under rule 8.548.  The odd thing about the order is that it’s post-dated for two days from today.

In Gradillas v. Lincoln General Insurance Company, the federal appeals court is dealing with an insurance coverage issue arising out of a rape on a party bus by the bus driver.  The court has asked (will ask on Monday?) the Supreme Court to answer this question:  “When determining whether an injury arises out of the ‘use’ of a vehicle for purposes of determining coverage under an automobile insurance policy and an insurance company’s duty to defend, is the appropriate test whether the vehicle was a ‘predominating cause/substantial factor’ or whether there was a ‘minimal causal connection’ between the vehicle and the injury?”  The Ninth Circuit heard argument in the case less than a month ago.

The Supreme Court has been especially accommodating of Ninth Circuit requests in the last several years, but we’ve questioned whether this streak of agreeing to take on more work at the Ninth Circuit’s behest will continue.  We might know as early as this Wednesday, when the Supreme Court might rule on the other pending Ninth Circuit request, in Davis v. Devanlay Retail Group, Inc.

It’s also worth noting that the last time the Supreme Court turned down a Ninth Circuit request (over three years ago), it was in an insurance coverage case.

The Supreme Court will likely decide by around Labor Day, give or take, whether to answer the Gradillas question.

[July 7 Update:  The Supreme Court has docketed the case.]