May 22, 2015

Bait-and-switch petitions at SCOTUS, too?

We’ve written about bait-and-switch petitions for review in the California Supreme Court — petitions that get the court’s attention with a juicy, review-worthy issue, but then are followed by merits briefing that argues for reversing the Court of Appeal on a different and much less important ground.  Apparently, it happens at the U.S. Supreme Court also.

This week, the Court decided City and County of San Francisco v. Sheehan.  It had Bait and switchgranted certiorari on two questions presented by San Francisco, including, first, whether the Americans with Disabilities Act “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.”  San Francisco changed course, however, after the case was accepted, basing its argument on another ground.  Worse yet, according to the Court’s opinion, it was a ground that was “never hinted at” in the Court of Appeals and that “effectively concedes” San Francisco would lose on the first question it had presented.

But San Francisco got away with its strategy.  The Court dismissed the first question as improvidently granted and, opting not to “further punish” San Francisco by dumping the whole case, went on to decide the second question in San Francisco’s favor.

Justice Scalia, joined by Justice Kagan, wrote separately, stating that he “would not reward such bait-and-switch tactics.”  Doing so, he said, would “encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.”  Scalia concluded that dismissing review of the entire case was necessary “to avoid being snookered, and to deter future snookering.”


May 20, 2015

Another rehearing petition fails by one vote

In People v. Johnson, a 5-2 Supreme Court affirmed a conviction for, and special circumstances finding of, carjacking when the victim was killed during a home invasion robbery.  Justices Kathryn Werdegar and Goodwin Liu dissented.  Today, the court denied rehearing, but new Justice Mariano-Florentino Cuéllar joined the dissenters in voting to grant.  The rehearing petition failed because the other newest justice — Leondra Kruger — did not want the case reheard.  That’s exactly the same way that rehearing was denied last month in Johnson v. California Department of Justice, the case concerning the constitutionality of distinctions the Legislature made in the Sex Offender Registration Act.

There is still one more “court-in-transition” rehearing petition pending, in Berkeley Hillside Preservation v. City of Berkeley.  A ruling on that petition was expected today, the last regular weekly conference before the court’s time to rule expires, but the docket has yet to reflect a decision.

May 18, 2015

Trial court erred in not advising defendant of effect of stipulating to a prior conviction. Supreme Court addresses argument not raised in the Court of Appeal.

In People v. Cross, a unanimous Supreme Court today holds that a trial court should have warned a defendant that stipulating to a prior conviction exposed him to a longer prison term.  The court’s opinion, authored by Justice Goodwin Liu, reverses the Third District Court of Appeal.  It also disapproves a 1995 decision of the First District, Division Four, Court of Appeal, but gives props to a 1985 Fifth District Court of Appeal opinion.

Of interest to Supreme Court practitioners generally is that the court addressed an argument when it wasn’t required to do so.  The Attorney General argued that the glass-housedefendant could not complain about the absence of a trial court warning because he didn’t object at trial.  But, the Attorney General was throwing stones in a glass house, because she herself hadn’t raised in the Court of Appeal defendant’s possible trial court waiver.  The Supreme Court cited rule 8.500(c)(1) (“As a policy matter, on petition for review the Supreme Court normally will not consider an issue that the petitioner failed to timely raise in the Court of Appeal”) — which doesn’t directly apply because the Attorney General isn’t the petitioner in this case — but then said it would exercise its discretion to address the argument because “it presents a ‘pure question[ ] of law, not turning upon disputed facts.’ ”  The court then rejected the argument.


May 18, 2015

6-1 Supreme Court finds no substantial evidence of juvenile’s competency to stand trial

The Supreme Court today concluded 6-1 that there was insufficient evidence to support a juvenile court’s finding that a 16-year-old was competent to stand trial for brandishing a deadly weapon and for vandalism.  The court found that the juvenile court improperly rejected an expert’s testimony that the juvenile was incompetent.  Also in the case — In re R. V. — the court held that, in a minor’s case, the minor has the burden of rebutting a presumption of competency and that, on appeal, a juvenile court’s determination in a competency proceeding is reviewed deferentially under the substantial evidence test, not de novo.

The court’s opinion, by Chief Justice Tani Cantil-Sakauye, reverses the Fourth District, Division Three, Court of Appeal.  It also disapproves an opinion of the Second District, Division Seven, Court of Appeal, because it — like the Court of Appeal in this case — applied too deferential a substantial evidence test.  Justice Ming Chin dissents, but only on the application of the law to the facts of this particular case; he finds the evidence is sufficient to support the juvenile court’s competency determination.



May 15, 2015

Summary of May 13, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, May 13, 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

Baral v. Schnitt, S225090—Review Granted—May 13, 2015

The question presented is whether a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) authorizes a trial court to excise allegations of activity protected under the statute when the cause of action also includes meritorious allegations based on activity that is not protected under the statute?

Plaintiff and defendant owned a company, IQ BackOffice LLC (IQ), with others. Plaintiff’s original complaint contained 18 causes of action alleging the defendant engaged in fraud and multiple breaches of fiduciary duty, including seizing control and secretly negotiating the sale of IQ to his advantage. The trial court applied existing authority (see, e.g., Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90) to hold the anti-SLAPP statute does not authorize a court to excise allegations concerning protected petitioning conduct subject to the anti-SLAPP statute from a “mixed” cause of action that also contains meritorious allegations not within the purview of the statute. On that basis, the trial court denied the anti-SLAPP motion, ruling: “[The] Anti-SLAPP motion still applies to causes of action or to an entire complaint, not allegations. Cases cited state that if a cause of action contains portions that are subject to anti-SLAPP and portions that are not, the defendant can move to strike those portions that are subject, i.e. the cause of action would be considered to contain two ‘counts’; one count subject and one count not. No case allows striking allegations per se under [section] 425.16; that is within the province of a regular motion to strike.”

The Court of Appeal, Second District, Division One, affirmed in a published decision, Baral v. Schnitt (2015) 233 Cal.App.4th 1423. It held the policy behind the anti-SLAPP statute is aimed at protecting petitions for redress and free speech rights against unmeritorious claims. But the court noted there are countervailing procedural rules intended to give the parties their day in court and promote efficient pretrial and trial proceedings. The court held the balance tipped in favor of allowing “mixed causes of action containing potentially meritorious claims to proceed unencumbered by the special procedures of the anti-SLAPP statute.”

Review Denied (with dissenting justices)




May 15, 2015

Prior-conviction-stipulation, juvenile competency opinions filing Monday

On Monday morning, the Supreme Court will file opinions in two cases argued on the March calendar.

In People v. Cross, the court will decide whether the trial court erred in failing to advise defendant in accordance with In re Yurko (1974) 10 Cal.3d 857 before accepting a defense stipulation that he had a prior conviction for an offense that exposed him to an increased sentence under Penal Code section 273.5, subdivision (e)(1)?

The court will answer these questions in In re R. V.:  (1) Which party bears the burden of proof in a juvenile competency proceeding?  (2) What is the proper standard of review on appeal of a trial court’s finding that the juvenile is competent?

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

May 15, 2015

Superior Court gets invitation to argue in Brady-Pitchess case

Yesterday, two weeks before the argument in People v. Superior Court RSVP(Johnson), the Supreme Court invited the respondent superior court to argue for 15 minutes in the case.   The superior court has until the end of next week to decide whether to accept the invitation.  A lower court rarely makes an appearance at a Supreme Court argument, but it does happen sometimes.

The case involves the intersection of Brady and Pitchess in the disclosure of police personnel files, so both the San Francisco District Attorney and the San Francisco Police Department are parties.  The Supreme Court also yesterday ordered the DA and the SFPD to split 30 minutes of oral argument time.

May 7, 2015

Three cases on the Supreme Court’s June calendar

A week after hearing 16 arguments on its late-May calendar in San Francisco, the Supreme Court will travel to Los Angeles to hear 3 more.  All three are criminal cases, including two automatic death penalty appeals.  The 19 late-May/June arguments are two more than during the same time period last year.  The court will then have an argument-free July and August.

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

People v. Prunty:  Is evidence of a collaborative or organizational nexus required before multiple subsets of the Norteños can be treated as a whole for the purpose of determining whether a group constitutes a criminal street gang within the meaning of Penal Code section 186.22, subdivision (f)?

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

People v. Romero and Self:  This is an automatic appeal from August 1996 judgments of death.  The court’s website does not list issues for such appeals.

May 7, 2015

Supreme Court holds state antitrust law can limit patent holder “reverse payments”

Patent holders can’t necessarily buy off a would-be competitor who is challenging a patent’s validity, a unanimous Supreme Court ruled this morning.  The court’s In re Cipro Cases I & II opinion, authored by Justice Kathryn Werdegar, interprets California antitrust law as a 2-year-old U.S. Supreme Court decision construed federal law and concludes, “Some patents are valid; some are not.  Sometimes competition would infringe; sometimes it would not.  Parties illegally restrain trade when they privately agree to substitute consensual monopoly in place of potential competition that would have followed a finding of invalidity or noninfringement.”  Today’s decision reverses the Fourth District, Division One, Court of Appeal.

May 6, 2015

3-day, 16-argument late-May calendar announced [UPDATED x2]

The Supreme Court today announced its late-May calendar, and it’s a big one.  There will be 16 arguments over three days.  As mentioned, May is the only double-calendar month and each calendar often includes more arguments than usual.  In fact, this month’s total of 25 arguments is almost as much as the previous 5 calendars combined.

The late-May calendar will clear out some of the oldest non-death-penalty cases on the court’s docket.  In three of the cases (Estate of Duke, City of San Diego, and Fluor Corporation), the court granted review in 2012.  Another 2012 case was argued yesterday.  The new oldest, un-argued cases on the docket are People v. Schaeffer, in which review was granted in October 2012, and Gillette Co. v. Franchise Tax Board, in which review was granted in January 2013.

The court gave the bare minimum 20-day notice of the arguments (minimum, that is, for the first day of the calendar).  Counsel in the three oldest cases will have less than three weeks to re-learn what the cases are about.

On May 26, 27, and 28, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Fluor Corporation v. Superior Court:  Are the limitations on assignment of third party liability insurance policy benefits recognized in Henkel Corp. v. Hartford Accident & Indemnity Co. (2003) 29 Cal.4th 934 inconsistent with the provisions of Insurance Code section 520?
[Disclosure:  Horvitz & Levy represents the real party in interest.]

City of San Diego v. Board of Trustees of the California State University:  Does a state agency that may have an obligation to make “fair-share” payments for the mitigation of off-site impacts of a proposed project satisfy its duty to mitigate under the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by stating that it has sought funding from the Legislature to pay for such mitigation and that, if the requested funds are not appropriated, it may proceed with the project on the ground that mitigation is infeasible?
[Disclosure:  Horvitz & Levy represents the defendant.]

DKN Holdings LLC v. Faerber:  (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?

Estate of Duke:  Should the “four corners” rule (see Estate of Barnes (1965) 63 Cal.2d 580) 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?

Lee v. Hanley:  Does the one-year statute of limitations for actions against attorneys set forth in California Code of Civil Procedure section 340.6 apply to a former client’s claim against an attorney for reimbursement of unearned attorney fees advanced in connection with a lawsuit?

People v. Jackson:  [This is an automatic appeal from a November 2005 judgment of death.  The court’s website does not list issues for such appeals.]
[May 15 Update:  The Supreme Court announced yesterday that the argument in the case will be continued to a future calendar.  The case likely won’t be argued before September; the June calendar is already set and there are no arguments in July or August.]
[May 22 Update:  This explains the argument continuance — two days ago, the court ordered supplemental briefing to address these questions:  What is the significance, if any, of Evidence Code section 1108 with respect to the cross-admissibility of evidence of the sexual assault on Myrna Mason?  Among the subsidiary questions counsel may wish to address are the following:  1. In light of the amended information (CT 713-714) and the jury instruction given in this case on the elements of burglary (CALJIC No. 14.50; CT 4138), was defendant accused of a sexual offense against Geraldine Myers within the meaning of Evidence Code section 1108 and People v. Story (2009) 45 Cal.4th 1282, 1294?  2. What evidence, other than the Mason sexual offenses, would support a jury finding that defendant entered Myers’s home with the intent to commit a sexual offense?  (See People v. Falsetta (1999) 21 Cal.4th 903, 920, 923.)  3. Assuming defendant was accused of a sexual offense against Myers, would the trial court have been required to exclude evidence of the Mason sexual offenses under Evidence Code section 352 in a separate trial of the Myers charges?  (Falsetta, supra, 21 Cal.4th at pp. 916-919.)  4. Do the provisions of Evidence Code section 1108 provide a basis to uphold the trial court’s denial of defendant’s motion to sever the Mason charges from the Myers charges?]

People v. Johnson:  For the purpose of determining eligibility for resentencing under the Three Strikes Reform Act of 2012 (Prop. 36, Gen. Elec. (Nov. 6, 2012) [Pen. Code, § 1170.126]), is an offense considered a serious or violent felony if it was not defined as a serious or violent felony on the date the offense was committed but was defined as a serious or violent felony on the effective date of the Act?
Johnson will be argued with —
People v. Machado:  Is an inmate serving an indeterminate term of life imprisonment under the Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(j), 1170.12), which was imposed for a conviction of an offense that is not a serious or violent felony, eligible for resentencing on that conviction under the Three Strikes Reform Act if the inmate is also serving an indeterminate term of life imprisonment under the Three Strikes Law for a conviction of an offense that is a serious or violent felony?

Poole v. Orange County Fire Authority:  Did a daily log about firefighters, which was maintained by a supervisor and used by the supervisor to prepare annual performance evaluations, qualify under the Firefighters Procedural Bill of Rights Act (Gov. Code, § 3250 et seq.) as a personnel file and/or as a file used for personnel purposes?

Cordova v. City of Los Angeles:  May a government entity be held liable if a dangerous condition of public property existed and caused the injuries plaintiffs suffered in an accident, but did not cause the third party conduct that led to the accident?

People v. Blackburn:  Did the trial court prejudicially err by failing to advise defendant of his right to jury trial and obtain a personal waiver of that right?

People v. Tran:  Did the trial court prejudicially err by failing to advise defendant of his right to jury trial and obtain a personal waiver of that right, and does the Court of Appeal have authority to declare a rule of procedure for the trial courts?

People v. Brown:  (1) Was defendant detained when a deputy sheriff stopped his patrol car immediately behind defendant’s parked vehicle and activated the patrol car’s emergency lights?  (2) In the alternative, did the deputy have reasonable suspicion to detain defendant?

J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company:  After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured?
[Note: the argument in this case was continued from the early-May calendar.]
[Disclosure:  Horvitz & Levy represents the petitioner on review.]

People v. Superior Court (Johnson):  (1) Does the prosecution have a duty to review peace officer personnel files to locate material that must be disclosed to the defense under Brady v. Maryland (1963) 373 U.S. 83?  (2) Does the prosecution have a right to access those files absent a motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531?  (3) Must the prosecution file a Pitchess motion in order to disclose such Brady material to the defense?
The court also ordered briefing on this issue:  Would the prosecution’s obligation under Brady v. Maryland (1963) 373 U.S. 83 (Brady) and its progeny be satisfied if it simply informs the defense of what the police department has informed it (that the two officers’ personnel files might contain Brady material), which would allow the defense to decide for itself whether to seek discovery of that material pursuant to statutory procedures?  (See People v. Gutierrez (2003) 112 Cal.App.4th 1463, 1475.)

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

People v. Seumanu:  [This is an automatic appeal from a December 2000 judgment of death.  The court’s website does not list issues for such appeals.]

May 6, 2015

No conference held the week of May 4, 2015

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

May 6, 2015

Drug antitrust opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in In re Cipro Cases I & II, which asks:  May a suit under the Cartwright Antitrust Act (Bus. & Prof. Code, § 16720 et seq.) be brought to challenge “reverse exclusionary payments” made by pharmaceutical manufacturers to settle patent litigation with generic drug producers and prolong the life of the patents in question?  The court also asked for supplemental briefing about the relevance of FTC v. Actavis, Inc. (2013) 570 U.S. __ [133 S.Ct. 2223, 186 L.Ed.2d 343] to the issues in the case.

Cipro is the first of the March calendar cases to be decided, but review was granted almost three and a half years ago (briefing was stayed, however, for separate periods of nine months and then five months).  Also, the case atypically garnered only four votes for review.

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

May 5, 2015

Too much to ask? Ninth Circuit requests that Supreme Court answer another state law question [UPDATED]

For the third time in a little over two months, the Ninth Circuit is asking the Supreme Court to resolve an issue of California law, this time about the Song-Beverly Credit Card Act.  In Davis v. Devanlay Retail Group, Inc., the federal appeals court has posed this question:  “Does section 1747.08 of the California Civil Code prohibit a retailer from requesting a customer’s personal identification information at the point of sale, after a customer has paid with a credit card and after the cashier has returned the credit card to the customer, if it would not be objectively reasonable for the customer to interpret the request to mean that providing such information is a condition to payment by credit card?”

The Ninth Circuit says that, “[b]ecause we find no controlling precedent, and because the meaning of the statute is ambiguous, we are uncertain whether the district courts are correctly applying California law in construing Song-Beverly to require an objective test of consumer perceptions.”  The court’s sales pitch to the Supreme Court is that the answer to the question asked “could have a significant impact on the practices of thousands of California retailers.”

The Supreme Court usually agrees to answer questions when the Ninth Circuit asks.  It did so in two different cases last week.  Indeed, of the last 14 requests (dating back to the beginning of 2011), the Supreme Court has said “no” only twice (here and here), and the last eight requests have been granted.  But the Supreme Court might at some point balk at having the Ninth Circuit add cases to its docket, especially when that docket is comprised of a substantial number of automatic death penalty appeals, which the Supreme Court must decide.

[May 6 Update:  The Supreme Court has docketed the case.]

May 4, 2015

Supreme Court limits costs against unsuccessful FEHA plaintiffs

In a unanimous opinion by Justice Kathryn Werdegar, the Supreme Court today limits the circumstances under which a court can assess costs against an unsuccessful plaintiff in an action alleging a violation of the California Fair Employment and Housing Act (FEHA).  The court decides in Williams v. Chino Valley Independent Fire District that a FEHA statute provides an exception to the general rule that a prevailing party is entitled to recover costs.  According to the court, the Legislature intended an asymmetrical standard — “a prevailing plaintiff should ordinarily receive his or her costs and attorney fees unless special circumstances would render such an award unjust,” but “[a] prevailing defendant . . . should not be awarded fees and costs unless the court finds the action was objectively without foundation when brought, or the plaintiff continued to litigate after it clearly became so.”

Admitting that it “spoke too broadly” in a 1998 opinion, the Supreme Court disapproves dictum in that earlier decision.  In Williams, the court reverses the Court of Appeal, Fourth District, Division Two, and it also disapproves three Court of Appeal opinions — a 2003 Sixth District Court of Appeal opinion, a 2005 First District, Division Two, opinion, and a 2013 Second District, Division Three, opinion.  The Supreme Court concludes that the Second District, Division Seven, got it right in a 1992 opinion.


May 1, 2015

Summary of April 29, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 29, 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. As we have already noted, the Court agreed this week to answer two questions of state law pursuant to the Ninth Circuit’s request.

Review Granted

Augustus v. ABM Security Services, S224853 – Review Granted – April 29, 2015

This case presents the following issues: (1) Do Labor Code, § 226.7, and Industrial Welfare Commission wage order No. 4-2001 require that employees be relieved of all duties during rest breaks? (2) Are security guards who remain on call during rest breaks performing work during that time under the analysis of Mendiola v. CPS Security Solutions, Inc. (2015) 60 Cal.4th 833?

Plaintiff and other former security guards employed by defendant allege that defendant failed to provide rest periods in accordance with California law. Specifically, they allege that defendant required its security guards to remain on-call during their breaks, thereby allegedly failing to relieve the security guards of all their duties during rest breaks. The trial court granted the Plaintiffs’ motion for summary adjudication finding that an employer must relieve its employees of all duties during rest breaks, including the obligation to remain on-call and their motion for class certification.

The Court of Appeal, Second District, Division One, reversed in a published opinion, Augustus v. ABM Security Services (2014) 233 Cal.App.4th 1065. The court noted that the summary adjudication and summary judgment orders depend on the notion that California law requires employers to relieve their workers of all duties during rest breaks. The Court of Appeal rejected this notion, holding that Labor Code section 226.7 does not require that an employee be relieved of all of his or her duties and instead requires only that the employee not be required to work. According to the Court of Appeal, remaining on-call itself does not constitute performing work.

[Note: Horvitz & Levy submitted an Amicus Curiae on behalf of Defendant and Appellant]

Citizens for Fair REU Rates v. City of Redding, S224779 – Review Granted – April 29, 2015

The Court limited review to the following issues: (1) Is a payment in lieu of taxes (PILOT) transferred from the city utility to the city general fund a “tax” under Proposition 26 (Cal. Const., art. XIII C, § 1, subd. (1)(e))? (2) Does the exception for “reasonable costs to the local government of providing the service or product” apply to the PILOT (Cal. Const., art. XIII C, § 1, subd. (1)(e)(2))? (3) Does the PILOT predate Proposition 26?

In 1978 voters adopted Proposition 13 requiring any “special taxes” for cities, counties, and special districts to be approved by a two-thirds vote. Throughout the years, several other propositions, including Proposition 26, were passed to fine tune the two-thirds vote requirement. This led to the addition of article XII C requiring that new taxes imposed by a local government be subject to a two-thirds vote by the electorate. Additionally, Proposition 26 defined a tax to be “any levy, charge, or exaction of any kind imposed by a local government.”

The City of Redding annually conducts a budget transfer from the Redding Electrical Utility to Redding’s general fund. Functionally, this transfer (PILOT) is equivalent to the ad valorem tax the Utility would be required to pay if privately owned. The PILOT is not set by ordinance, but is part of the Redding biennial budget. Plaintiffs challenge the PILOT, claiming that it constitutes a tax for which article XII C requires a vote by two-thirds of the electorate. Redding, however, argues that the PILOT is not a tax and, even if it were, it would be grandfathered-in because it precedes the adoption of Proposition 26. The trial court found the PILOT predated Proposition 26 and therefore was not subject to the two-thirds vote requirement.

The Third District Court of Appeal reversed in a published decision, Citizens for Fair REU Rates v. City of Redding (2015) 233 Cal.App.4th 402, holding the PILOT was not grandfathered-in because it preceded Proposition 26’s adoption. Additionally, The court ruled the PILOT was a tax under Proposition 26 unless Redding is able to prove the money collected was necessary to cover the reasonable costs to the city to provide electric service. According to the court, this factual question regarding reasonableness was not properly determined by the trial court and therefore remanded.

Review Denied (with dissenting justices)

None in a civil case. But three justices dissented from the denial of review in a criminal case, as we noted here.



May 1, 2015

FEHA costs opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Williams v. Chino Valley Independent Fire District, which raises the issue whether a prevailing defendant in an action under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) is required to show that the plaintiff’s claim was frivolous, unreasonable, or groundless in order to recover ordinary litigation costs.  After scheduling the case for oral argument, the court directed the parties in Williams to file supplemental briefs, due after the argument, regarding “the significance, if any, of Assembly Bill No. 1915 (1977-1978 Reg. Sess.) and its legislative history.”

Williams was argued on the court’s February calendar, but the post-argument briefing delayed submission of the case by two weeks.

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

April 30, 2015

Save the Date – National appellate summit to be held in Washington, D.C., this November

The Appellate Judges Education Institute (AJEI) is holding its twelfth annual nationwide appellate Summit at the Omni Shoreham Hotel in Washington, D.C., on November 12 through 15, 2015. The summit is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys. As in years past, this year’s summit will present excellent speakers on topics of interest to appellate practitioners. There will be numerous top-notch social events, including a cocktail reception at the Great Hall of the Supreme Court, a Summit dinner, and dine-arounds. More information will follow as the program is finalized.  As attendees of past AJEI Summits will confirm, this is one appellate CLE program you really should attend. (Full disclosure: Horvitz & Levy partner Brad Pauley is Chair of the ABA’s Council of Appellate Lawyers.)

April 30, 2015

Three is not enough, continued

Coming up one vote short of the four needed to grant a petition for review doesn’t happen every day, but yesterday was one of those days.  In People v. Almanza, Justices Kathryn Werdegar, Goodwin Liu, Mariano-Florentino Cuéllar — and nobody else — voted for review, even though the Court of Appeal itself was certainly inviting that the case be taken up.  (One caveat:  three votes for review can happen more often than we know; justices don’t always make public their dissenting votes on petitions for review.)

Werdegar, Liu, and Cuéllar are the same solitary three justices who voted for a rehearing in different case last week.  Also, Cuéllar and Liu were the only recorded votes for one petition for review at Cuéllar’s first Supreme Court conference.  Analysts seem intent on determining whether Governor Brown’s three appointees — Liu, Cuéllar, and Leondra Kruger — will be a bloc and some expressed surprise when Kruger did not join Liu and Cuéllar in voting for the rehearing petition.  It would be better to wait to see if any significant disagreements develop among the three in opinions the court files.  By our count, there have been no such disagreements in any of the ten opinions in which Cuéllar and Kruger have participated, unless you count Liu’s concurring opinion in Coffey v. Shiomoto.

April 30, 2015

Supreme Court affirms death penalty judgment

The Supreme Court this morning affirmed the judgment of death in People v. Kopatz.  The unanimous opinion by Justice Ming Chin rejects (1) the defendant’s claim of a Miranda violation, (2) his challenge to the admission of a deceased witness’s prior consistent statement, (3) his argument that an officer’s testimony about the officer’s conversation with someone else violated the defendant’s confrontation right, (4) the contention that victim impact evidence was prejudicially excessive, (5) the defendant’s assertion that there should have been separate penalty verdicts as to each of the two victims, and (6) other routinely rejected arguments that attack jury instructions and the death penalty.

April 29, 2015

Rehearing denied in sex offender residency restriction case

The Supreme Court today denied rehearing in People v. Mosley, one of five cases in which a change in the court’s composition could have led to second opinions.  In Mosley, the dissenters — Justices Goodwin Liu and Kathryn Werdegar — voted for rehearing, but new Justices Mariano-Florentino Cuéllar and Leondra Kruger did not.

Last month, Cuéllar and Kruger joined Werdegar and Liu to force a rehearing in People v. Grimes.  Last week, the court almost granted rehearing in Johnson v. California Department of Justice, but came up one vote short when Cuéllar but not Kruger joined Werdegar and Liu.

In Mosley, a 5-2 court held that, under Apprendi v. New Jersey (2000) 530 U.S. 466, a judge without a jury can make the required “findings underlying his or her discretionary order that a convicted criminal defendant must register as a sex offender” even if that order “includes registered sex offender residency restrictions.”