July 4, 2015

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

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.

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July 2, 2015

One defendant wins, another loses in Three Strikes Reform Act opinion. Death penalty affirmed.

The Supreme Court today addresses two issues concerning resentencing provisions in the Three Strikes Reform Act of 2012, which was adopted by the voters’ approval of Proposition 36.  The court also affirms a death sentence.  Both opinions are unanimous, although why there is total agreement in the death penalty case is a bit mysterious.

The Reform Act changed the Three Strikes law so that no longer do all third felony convictions automatically require a minimum 25-years-to-life sentence; that sentence is now limited mostly to those third felonies that are “serious” or “violent.”  The Reform Act also provides that prisoners previously sentenced under the old Three Strikes law for many non-serious and non-violent third-strike felonies can petition for resentencing.  In the consolidated opinion deciding People v. Johnson and People v. Machado, Chief Justice Tani Cantil-Sakauye writes for the court that Machado can be resentenced but Johnson can’t.

Machado had two third strikes; he was convicted at the same time of both a serious felony and a felony that was neither serious nor violent.  Affirming Division One of the Second District Court of Appeal, the Supreme Court holds that he can seek resentencing for the non-serious, non-violent felony, which could lead to an earlier parole.  Johnson’s third strike was a felony that was neither serious nor violent when he committed it, but, in between the commission of the crime and the enactment of the Reform Act, the felony was re-classified as serious and violent.  Affirming Division Three of the Second District Court of Appeal, the court concludes it’s the classification of the crime at the time the Reform Act took effect that counts.

Johnson’s and Machado’s cases both involved ambiguous language in the Reform Act.  The opinion resolving the cases is a smorgasbord for statutory construction mavens.

Justice Kathryn Werdegar’s opinion in People v. Cunningham affirms the death penalty for a triple murderer.  The guilt phase of the case was a bench trial; only the penalty phase was to tried to a jury.  One argument rejected by the court was that defendant was coerced into waiving a jury trial for the guilt phase because of what the defendant called his “painful, excessive, and unnecessary shackling” during pretrial proceedings.

Cunningham also involves some jury selection issues that have been on the court’s radar recently.

Earlier this week, the court reversed a death sentence in People v. Leon because the trial court had erroneously dismissed jurors for cause based on their asserted inability to be impartial jurors in a capital case.  Today, the court addresses the same issue, but finds no error in a juror’s dismissal for cause.

The court also concludes there was no Batson violation in the prosecution’s peremptory dismissal of several African-American jurors, even though the trial court had erred in its legal analysis of the defendant’s claim as to one excused juror.  How to evaluate claims of racial discrimination in the jury selection process is an issue that has divided the court before, but not today.

Interestingly, however, it seems like the Batson issue could have divided the court today.  The court finds nothing wrong with one peremptory challenge because, even though the prosecutor had actually stated his reasons for the challenge, the court is able to “discern at least one race-neutral reason . . . that is ‘apparent from and “clearly established” in the record.’ ”  As precedent for this method of rejecting a Batson claim, the court relies on its opinion last month in People v. Scott.  But that very analytic method — discerning a race-neutral reason for a peremptory challenge despite the prosecutor having in fact stated reasons — appears to have been the target of a critical concurring opinion by Justices Goodwin Liu and Leondra Kruger in Scott itself.  Today, there are no separate opinions.

July 2, 2015

Peace officer personnel file discovery opinion filing Monday

On Monday morning the Supreme Court will file its opinion in People v. Superior Court (Johnson), a case that concerns the intersection of the prosecution’s duty to disclose exculpatory evidence and the requirement of a hearing about whether a police officer’s personnel file must remain confidential.

Johnson, which was argued on the late-May calendar, raises these issues:  (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.)

This is the case in which the Supreme Court specifically extended an invitation to the superior court to participate in the oral argument.  The invitation was accepted.

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

July 1, 2015

Three Strikes Reform Act, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions deciding three cases.

People v. Johnson and People v. Machado, which were argued together and will be decided in one opinion, are Three Strikes cases.  The issue in Johnson is whether, 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]), an offense is 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.  Machado raises the issue whether 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, is 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.

The Johnson and Machado opinion will be the first one for cases argued on the court’s late-May calendar.

People v. Cunningham, which was argued on the early-May calendar, is an automatic appeal from a January 1996 judgment of death.

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

 

July 1, 2015

No conference this week

The Supreme Court is taking this holiday-shortened week off, at least as far as holding a conference is concerned.  There is at least one week each month in which the court doesn’t conference.  This week is that week for July.

June 30, 2015

New California Supreme Court Historical Society newsletter

The California Supreme Court Historical Society has published its Spring/Summer 2015 newsletter.  (Disclosure:  I serve on the Society’s board.)  The first two articles are about Hong Yen CSCHSChang and the Supreme Court’s decision earlier this year to posthumously grant him admission to the California Bar.  Another article is about Governor Brown’s January swearing in of his two most recent appointees, Justices Mariano-Florentino Cuéllar and Leondra Kruger.

Here is the table of contents:

Righting a Historic Wrong
The Posthumous Admission
of Hong Yen Chang
Jeffrey L. Bleich, Benjamin J. Horwich
& Joshua S. Meltzer

Bury My Bones in America
A Family History of Hong Yen Chang
Lani Ah Tye Farkas

‘I’m Looking for Real Wisdom’
Governor Swears In
Two New Justices

Creating a Repository for California
Judicial History
Special Collections & Archives
Martha R. Noble & Noah D. Pollaczek

Scales, Swords, and Squares
The Seals of the Supreme Court
Sebastian A. Nelson

Are Our Courts Keeping Step?
The State of the Judiciary in 1934
Chief Justice William H. Waste

Message From the President

June 29, 2015

Erroneous exclusion of prospective jurors leads to death sentence reversal

The Supreme Court today reverses the death sentence (but not the conviction) in People v. Leon because of the improper exclusion of three prospective jurors.  This is not a Batson, racially-motivated-peremptory-challenge case.  Rather, the trial court error was in improperly granting challenges for cause based on the prospective jurors’ death penalty views.  The Supreme Court concludes, “Written and oral voir dire responses of the three excused panelists did not give the court sufficient information to conclude they were incapable of performing their duties as capital jurors.”

Like three other recent death penalty reversals, Leon is a unanimous decision written by Justice Carol Corrigan.  Well, it’s almost unanimous — Justice Goodwin Liu, joined by Justice Mariano-Florentino Cuéllar, writes a very brief concurring opinion distancing himself from the court’s rejection of two other of the defendant’s jury selection arguments.  There was another death penalty reversal, in an opinion written by Justice Ming Chin, just last month.

June 28, 2015

Supreme Court reverses Court of Appeals to affirm Supreme Court, kinda

Yes, the title of this post is obtuse.  And we’re a bit late in commenting on this.  But the US Supreme Court on June 18 in a sense validated a 15-year-old California Supreme Court decision affirming a death penalty.

The state high court, by a 5-1 vote, had found error in the trial judge’s ex parte handling of the defendant’s Batson challenge to the prosecution’s peremptory dismissal of seven prospective jurors, but it found the error harmless.  (People v. Ayala (2000) 24 Cal.4th 243.)  Then-Chief Justice Ronald George dissented, stating that “applicable state and federal precedent clearly requires that we reverse defendant’s conviction and remand this case for a new trial.”

Last year, a divided Ninth Circuit panel held that the error wasn’t harmless and ordered habeas corpus relief.  (Ayala v. Wong (9th Cir. 2014) 756 F.3d 656.)  Ten days ago, the federal high court reversed the Ninth Circuit by a 5-4 vote.  (Davis v. Ayala (2015) __ U.S. __ [2015 WL 2473373].)

The US Supreme Court decision can’t be considered a full vindication of the California Supreme Court’s opinion, however, because the federal high court applied a standard of review that is much more deferential to the state high court than the standard the state high court was required to apply in originally reviewing the trial court Batson error.  On direct appeal, to avoid reversal, a Batson error must be found harmless beyond a reasonable doubt.  On habeas review, however, the standard is practically the opposite — it is the prisoner who has the burden of establishing that the error resulted in actual prejudice.

Harmless error is a hot button issue at the California Supreme Court.  (See here and here.)  So is Batson error.  (Here.)  The US Supreme Court’s decision might not make much of a difference to the California Supreme Court’s handling of those issues in the future, however, because the US Supreme Court applied the dramatically different federal habeas standard of review for harmless error and presumed Batson error.

June 27, 2015

“Same-sex marriage rights in trailblazing California now extend to all”

Maura Dolan and Lee Romney report on the front page of today’s Los Angeles Times about California’s role in the historic US Supreme Court same-sex marriage opinion, including the California Supreme Court’s 4-3 decision seven years ago that reached the same conclusion as the high court did yesterday.  Just as Perez v. Sharp (1948) 32 Cal.2d 711 preceded Loving v. Virginia (1967) 388 U.S. 1 concerning interracial marriage, so did In re Marriage Cases (2008) 43 Cal.4th 757 precede Obergefell v. Hodges (2015) __ U.S. __ [2015 WL 2473451] on same-sex marriage.

The article recounts the story, which has been public knowledge, that then-Chief Justice Ronald George, the author of the In re Marriage Cases opinion, wrote two drafts of the decision — one for and one against recognizing a right to same-sex marriage under the state constitution — and cast his own vote only after eliciting comments from other members of the court.

The Obergefell Court does not give In re Marriage Cases its due.  The California opinion is mentioned only in an appendix list — a long list — of other same-sex marriage decisions.  The California Supreme Court’s part is more than a footnote to some, however.  In the Los Angeles Times article, George tells how, just last year, while he was on an Arctic cruise with his wife, two lesbian couples sent to his table a bottle of wine with a note, “Can we come over and give you a hug?”

June 26, 2015

Summary of June 24, 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, June 24, 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

City of San Buenaventura v. United Water Conservation District, S226036—Review Granted—June 24, 2015

The Supreme Court has limited review to the following issues: (1) Do the defendant Water District’s ground water pumping charges violate Proposition 218 or Proposition 26? (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?

The defendant Water District manages the groundwater resources in Ventura County. The plaintiff City of San Buenaventura (City) pumps groundwater from District territory for its residential customers and, in return, the District collects a fee from the City based on the volume of water it pumps. The Water Code authorizes this fee and requires the District to set different rates for different uses. The City contended the District unlawfully increased the City’s rate to pump water and thereby violated article XIII C and D of the California Constitution. The trial court agreed.

In a published opinion, City of San Buenaventura v. United Water Conservation District (2015) 235 Cal.App.4th 228, the Court of Appeal, Second District, Division Six, held the rate charged by the District was not property-related (and thus not subject to article XIII D of the California Constitution, which governs property-related fees via Proposition 218). The court further held that even if the rate were property-related, it did not conflict with constitutional provisions governing property-related fees imposed by local governments. The Court of Appeal further held the fees charged by the District were not “taxes” contemplated by Proposition 26. It reasoned the fees conferred a specific benefit to the City as payor and did not exceed the District’s reasonable costs.

FTR International v. Board of Trustees of the Los Angeles Community College District, S226521—Review Granted and Held—June 24, 2015

The Supreme Court ordered briefing deferred pending its decision in City of Montebello v. Vasquez (2014) 226 Cal.App.4th 1084 (Montebello), which presents the following issue: Did votes by city officials to approve a contract constitute conduct protected under Code of Civil Procedure section 425.16 (the anti-SLAPP statute) despite the allegation that the officials had a financial interest in the contract?

In an unpublished opinion, FTR International, Inc. v. Board of Trustees of the Los Angeles Community College District (Apr. 7, 2015, B242220) 2015 WL 1577128, the Court of Appeal, Second District, Division Two, held public officials’ votes were a protected activity within the scope of the anti-SLAPP statute and declined to strip public officials of anti-SLAPP protection. Because the Supreme Court had earlier ordered Montebello depublished, the Court of Appeal relied on Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1354-1355 (Schwarzburd), which held that board members of a public agency who were sued because of how they voted were entitled to the protections of the anti-SLAPP statute.

Ultimately, the Court of Appeal held the trial court improperly denied the officials’ anti-SLAPP motion to strike the plaintiffs’ complaint as to their personal capacity claim. The court further held a second anti-SLAPP motion should have been granted as to plaintiffs’ causes of action for intentional interference with contract and/or prospective economic advantage and for negligence.

Review Denied (with dissenting justices)

None.

Depublished

None.

June 26, 2015

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Leon, an automatic appeal from an October 1996 judgment of death.  Leon was argued on the court’s April calendar.

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

June 25, 2015

“2014-2015 California Supreme Court Round-Up”

On July 7, the Federalist Society and the Libertarian Law Council are sponsoring a program, “2014-2015 California Supreme Court Round-Up.”  The panel will be Horvitz & Levy partner Jeremy Rosen, former Horvitz & Levy partner (and current Directing Attorney of Public Counsel’s Appellate Law Program) Lisa Jaskol, and former Court of Appeal Justice (and current Gibson, Dunn & Crutcher partner) Daniel Kolkey.

Here are the details:

Tuesday, July 7, 2015
12 noon
Morton’s The Steakhouse
735 S. Figueroa Street
Los Angeles, California 90017

MCLE Credit: One Hour

Please reply via email to la.fedsoc@gmail.com if you wish to attend.

The cost of the luncheon is $30.  Dues-paying members of The Federalist Society may pay a discounted rate of $20.  Payment may be submitted in advance by mailing a check made payable to the Federalist Society to:  Andrew Pappas, Gibson, Dunn & Crutcher LLP, 333 South Grand Avenue, Los Angeles, California 90071.  Payment (cash or check only) will also be accepted at the door.

June 25, 2015

Supreme Court busts internet gaming, finds Miranda violation to be harmless

The Supreme Court filed two unanimous opinions this morning, extending to certain internet gaming a general prohibition of slot machines and devices and finding to be harmless a Miranda violation.

In People v. Grewal, Justice Ming Chin writes for the court in what can rank no higher than the second most important statutory construction case decided today.  The court concludes that the statutory ban on “‘one-armed bandits'” — a nickname for slot machines that the court notes could puzzle “younger users” — encompasses “devices that resemble traditional casino-style slot machines in some ways and offer users the chance to win sweepstakes prizes,” but that, “[b]ecause they employ modern technology, . . . differ from traditional slot machines in some ways.”  The court says that, “[w]hen the user, by some means (here swiping a card or entering a number), causes the machine to operate, and then plays a game to learn the outcome, which is governed by chance, the user is playing a slot machine.”

The Grewal decision affirms the Fifth District Court of Appeal, and in fact quotes extensively from that court’s opinion in one of the four cases under review.  Grewal also speaks approvingly of a 2000 divided opinion by the Second District, Division One, and of a 2013 decision by a federal district court judge in the Southern District of California.

In People v. Elizalde, the court’s opinion by Justice Carol Corrigan finds a Miranda violation, but concludes it was harmless to introduce evidence gained from the violation.  Questioning the defendant about his gang affiliation while processing him into jail exceeded the scope of the Miranda booking exception, the court holds.  “[I]t is permissible to ask arrestees questions about gang affiliation during the booking process,” the court explains, but the “answers to the unadmonished gang questions posed here were inadmissible in the prosecution’s case-in-chief.”  Admitting the inadmissible was harmless beyond a reasonable doubt, however, because the defendant’s gang membership was established by the uncontroverted testimony of three witnesses.

Elizalde affirms the First District, Division Two, Court of Appeal.  It also disapproves a 2011 decision by the Fourth District, Division Two, Court of Appeal, and states that the Supreme Court’s approving citation of that decision in a 2013 opinion “no longer provides persuasive authority.”

June 24, 2015

Internet gaming, Miranda opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two opinions, deciding three cases.  All three cases were argued on the early-May calendar.

In the consolidated cases of People v. Grewal and People v. Nasser, the court will determine whether the internet café games at issue in the cases are subject to Penal Code section 330b, subdivision (d), on the ground they constitute “slot machine[s] or device[s]”?  Subdivision (a) of section 330b broadly prohibits allowing the operation of slot machines and devices.

In People v. Elizalde, the court will answer these questions:  (1) Was defendant subjected to custodial interrogation without the benefit of warnings under Miranda v. Arizona (1966) 384 U.S. 436, when he was questioned about his gang affiliation during an interview while being booked into jail, or did the questioning fall within the booking exception to Miranda?  (2) If the questioning fell outside the booking exception, was defendant prejudiced by the admission of his incriminating statements at trial?

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

June 22, 2015

Supreme Court denies habeas relief to mass murderer

In a unanimous opinion by Justice Goodwin Liu, the Supreme Court denied the habeas corpus petition of a death row inmate, who had killed six people in Oakland almost 30 years ago.  In In re Welch, the court ten years ago, with a minimum four votes, issued an order to show cause concerning issues of jury misconduct and ineffective assistance of counsel.  (Now-retired Justice Joyce Kennard alone voted to also investigate issues regarding the defendant’s competency to stand trial.)

Today, the court concludes that neither issue warrants habeas relief.  The court finds no credible evidence of jury misconduct.  It also holds that, although there was “a strong argument” that a referee correctly found there had been an inadequate penalty phase investigation by defense counsel, there was an insufficient showing that counsel’s ineffective performance was prejudicial.  “[I]n light of the enormity of Welch’s crimes and the lack of evidence of any positive qualities he possessed,” the court says, “we doubt that any sympathy for Welch based on the abuse he suffered as a child would have altered the jury’s penalty verdict.”

Welch was argued on the court’s early-May calendar, and is the first opinion in any of that calendar’s cases.

June 19, 2015

Summary of June 17, 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, June 17, 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

In re R.T., S226416 —Review Granted; issues limited—June 17, 2015

Petition for review after the Court of Appeal affirmed orders in a juvenile dependency proceeding. The court limited review to 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?

In a published opinion, In re R.T. (2015) 235 Cal.App.4th 795, the Court of Appeal, Second District, Division Two, held that a showing of parental blame is not required for a juvenile court to assert dependency jurisdiction over a child placed in “substantial risk of physical harm or illness due to her parent’s ‘failure or inability . . . to adequately supervise or protect’ her.” There, the mother of a “ ‘rebellious,’ ‘incorrigible,’ and ‘out of control’ teenager” argued that the juvenile court erred in invoking dependency jurisdiction without proving that her inability to supervise or protect her child stemmed from being “unfit or neglectful.” The Court of Appeal disagreed, reasoning that “the text and purpose of the first clause of section 300, subdivision (b)(1) point to the conclusion that a showing of parental blame is not required.”

Barnes v. Dahan, S226500—Review Granted and Transferred—June 17, 2015

In this action arising from a landlord-tenant dispute, the Court of Appeal, Second District, Division Two, dismissed the tenants’ appeal based on their failure to comply with an order to pay monetary sanctions to the respondent landlord within 15 days of the order, and in light of the appellants’ “pattern of conduct.”

The Supreme Court granted review and transferred the matter to the Court of Appeal, Second District, Division Two, with directions to vacate its order dismissing the appeal. The Court directed the Court of Appeal to reconsider the respondent’s motion for sanctions and for dismissal of the appeal in light of In re Marriage of Flaherty (1982) 31 Cal.3d 637, 654, and California Rules of Court, rule 8.276(c)-(e).

Dole Food Company v. Superior Court, S226364—Review Granted and Transferred—June 17, 2015

The Supreme Court granted review and transferred the matter to the Court of Appeal, Second District, Division Three, with directions to vacate its order denying the requested petition for writ of mandate and to issue a new order directing the respondent trial court to show cause why the relief sought should not be granted.

Review Denied (with dissenting justices)

None.

Depublished

None.

June 15, 2015

Affordable housing advocates, criminal defendant win in Supreme Court opinions

In two opinions written by Chief Justice Tani Cantil-Sakauye, the Supreme Court today hands victories to affordable housing advocates and to a criminal defendant.

The long opinion in California Building Industry Association v. City of San Jose applies a generally deferential standard of judicial review to so-called inclusionary zoning ordinances, in this case a San Jose enactment requiring all new residential development projects of 20 or more units to sell at least 15 percent of the for-sale units at a price affordable to low or moderate income households.  Recognizing that “significant problems arising from a scarcity of affordable housing . . . have reached what might be described as epic proportions in many of the state’s localities,” the court rejects the California Building Industry Association’s argument that, under the takings clause of the federal and state constitutions, San Jose should be required to show that the city’s affordable housing problem was caused by or attributable to the proposed new developments subject to the ordinance’s requirements.  The court concluded that, unlike imposing an in lieu monetary fee, the San Jose price controls do “not constitute an exaction for purposes of the takings clause so as to bring into play the unconstitutional conditions doctrine,” even though developers could avoid the price controls by paying an in lieu fee.  The court affirms the Sixth District Court of Appeal and disapproves a 2009 Fifth District Court of Appeal opinion.

There are two concurring opinions, one by Justice Kathryn Werdegar, who signed the majority opinion, and one by Justice Ming Chin, who did not.  Justice Chin stresses that he agrees with the majority bottom line because the San Jose ordinance does not require the developer to provide subsidized housing, such as mandating the sale of some units below cost.

In People v. Le, a 6-1 court holds that a court cannot impose both a firearm enhancement and a gang enhancement when both enhancements depend on the defendant’s firearm use.  Justice Chin dissents, claiming that the majority opinion “overrides [a] clear legislative mandate and prohibits imposition of the enhanced penalty for committing a serious felony to benefit a criminal street gang.”  The court affirms the Fourth District, Division One, Court of Appeal.

June 14, 2015

Justice Ginsburg in conversation with Justice Liu

Justice Goodwin Liu yesterday interviewed his former boss, US Supreme Court Justice Ruth Bader Ginsburg, at the annual national convention of the American Constitution Society.

June 14, 2015

A thimble-full of sarcasm

Professor Richard Hasen of the University of California, Irvine, recently published a sarcasm index for the justices of the US Supreme Court.  (Rick is also a former Horvitz & Levy attorney and current consultant to the firm.)  Rick’s study shows that Justice Antonin Scalia is the Court’s hands-down sarcasm champion.

Sarcasm doesn’t show up much at the California Supreme Court.  (The justices appear to be a rather collegial bunch.  They certainly can’t hold a candle to Wisconsin.)  When sarcasm does appear (and when we notice it), it’s worth at least a passing mention.

Last week, the court decided People v. Scott, a death penalty case we’ve been following.  Justice Goodwin Liu, joined by Justice Leondra Kruger, wrote separately, claiming that the majority’s decision of a Batson/Wheeler issue “puts this court at odds with the majority of state high courts and federal circuit courts that have considered the issue.”  The majority was counting differently, because it brushed aside Justice Liu’s authorities as “a handful of cases that have taken an approach similar to the one he espouses.”  Justice Liu was equally unimpressed by the number of cases on which the majority relied, responding, “If the cases I have cited are a mere handful, then the pertinent non-California authority cited by the court could fit in a thimble.”

That’s pretty mild.  Or, as Justice Scalia would likely scoff at the California justices, “Amateurs!”

June 12, 2015

Summary of June 10, 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, June 10, 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. This week we note that the Court has granted outright review, or granted and held, in no fewer than 21 civil and criminal cases. We can’t say for sure, but this may be due to a backlog caused by the Court’s recent heavy oral argument calendars. We summarize the civil cases below.

Review Granted

Jacks v. City of Santa Barbara, S225589—Review Granted—June 10 , 2015

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

Southern California Edison (SCE) provides electricity to the City of Santa Barbara (City) pursuant to a series of franchise agreements allowing SCE to use the City’s streets and other property. In 1999, SCE and the City agreed to the City’s increase of the franchise fee contingent upon the Public Utilities Commission (PUC) treating the additional 1 percent as a surcharge. In 2005, the PUC approved the 1 percent surcharge and SCE began billing and collecting it from the City’s electricity users and remitting the revenues to the City. The 1 percent surcharge was expected to generate approximately $600,000 in revenue each year and increase the monthly electricity bill for a typical residential customer by about 54 percent. It was never submitted to, or approved by, city voters.

Appellants filed a class action seeking an order declaring the 1 percent surcharge invalid under Proposition 218 as a tax imposed without voter approval. The trial court accepted the argument that the 1 percent surcharge was part of the franchise fee and does not qualify as a tax under Proposition 218. The court held the 1 percent surcharge did not constitute a tax under Proposition 26 because Proposition 26 does not apply retrospectively to the 1999 franchise agreement.

The Court of Appeal, Second District, Division Six, held in a published opinion, Jacks v. City of Santa Barbara (2015) 234 Cal.App.4th 925, that the City imposed the 1 percent surcharge without complying with Proposition 218, and directed the trial court to grant the appellants’ motion for summary judgment. The court held that the surcharge had all the hallmarks of a utility user tax because its primary purpose was for the City to raise revenue from electricity users for general spending purposes, rather than for SCE to obtain the right of way to provide electricity. This constitutes a tax under Proposition 218 and is subject to approval by the electorate.

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc., S225398—Review Granted—June 10, 2015

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

American Asphalt South, Inc. (American) outbid Roy Allan Slurry Seal, Inc. (Allan), and jointly, Doug Martin Contracting, Inc. (Martin), on 23 public works cases totaling $14.6 million dollars. Allan and Martin sued American for intentional interference with prospective economic advantage, claiming American was only able to submit the lowest bid because it paid its workers less than is required by Labor Code sections 1770 and 1771. American demurred to the complaints, contending the plaintiffs did not have the required existing relationship and reasonable probability of being awarded the contracts that was required to show intentional interference with prospective economic advantage.

The Court of Appeal, Second District, Division Eight, held in a published opinion, Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2015) 234 Cal.App.4th 748, that (1) a bidder on a government contract who submits a superior bid and loses out only because a competitor manipulated the bid selection process through illegal conduct has been the victim of actionable intentional interference; and (2) an actionable economic expectancy arises once the public agency awards a contract to an unlawful bidder, thereby signaling that the contract would have gone to the second lowest qualifying bidder.

In her dissenting opinion, Justice Grimes asserted that the plaintiff must allege it had a preexisting economic relationship with a third party with probable future benefit, and mere interference by another bidder is not sufficient to establish that relationship.

HSU v. California Department of Toxic Substances Control, S225332—Review Granted and Held—June 10, 2015

The Court granted review and deferred further action pending the Court’s consideration and disposition of a related issue 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?

HSU v. California Department of Toxic Substances Control, S226143—Review Granted and Held—June 10, 2015

The Court granted review and deferred further action pending the Court’s consideration and disposition of a related issue 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?

Trabert v. Consumer Portfolio Services, S225749—Review Granted and Held—June 10, 2015

Petition for review after the Court of Appeal reversed an order denying a petition to compel arbitration in a civil action. The Court ordered briefing deferred pending its decision in Sanchez v. Valencia Holding Co. LLC, S199119 (#12-33), which includes the following issue: Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. 321, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

Plaintiff purchased a used vehicle from a car dealer under a preprinted industry-drafted installment sales contract. The dealer then assigned the contract to the creditor assignee, Defendant. Defendant later repossessed Plaintiff’s vehicle, and Plaintiff filed a class action alleging Defendant’s repossession/default notices were defective under consumer statutes. Defendant moved to compel arbitration under a lengthy arbitration provision in the parties’ sales contract. In opposition, the Plaintiff argued the arbitration agreement was unenforceable because it contained two sets of unconscionable provisions: (1) provisions creating exceptions to the finality of the arbitrator’s decisions; and (2) provisions allowing the parties to seek relief outside the arbitration process through self-help remedies or small claims court. The trial court found both sets of challenged provisions were unconscionable and denied Defendant’s motion to compel arbitration.

The Court of Appeal, Fourth District, Division One, held in a published decision, Trabert v. Consumer Portfolio Services, Inc. (2015) 234 Cal.App.4th 1154, that the arbitration agreement was not permeated with unconscionable provisions. The provisions held to be unconscionable were collateral to the core purpose of both the arbitration agreement and the sales contract. The court thus held that only one discrete portion of the arbitration agreement – provisions setting forth finality exceptions that are contained in two consecutive sentences – were unconscionable and thus unenforceable. Striking these two sentences would leave intact the rest of the lengthy arbitration provision and sales agreement. The court ruled that the parties therefore should arbitrate their dispute and would be limited to challenging the award under the statutory provisions. This would ensure that the parties would receive the benefit of their bargain.

Universal Protection Service v. Superior Court (Franco), S225450—Review Granted and Held—June 10, 2015

The court ordered briefing deferred pending decision in Sandquist v. Lebo Automotive, Inc., S220812 (#14-127), which presents the following issue: Does the trial court or the arbitrator decide whether an arbitration agreement provides for class arbitration if the agreement itself is silent on that issue?

In 2008, Franco signed an agreement to arbitrate any and all disputes with his employer, defendant Universal, including employment disputes. The agreement states that the arbitration is to be conducted “in accordance with the National Rules for the Resolution of Employment Disputes set forth by the American Arbitration Association [AAA].” In 2014, Franco, on behalf of herself and others similarly situated, filed a claim for class arbitration with the AAA. Universal responded by filing a declaratory relief action in the trial court. It sought judicial declarations that (1) the court, not an arbitrator, decides whether class, collective or other representative arbitration is available under the arbitration agreement; and (2) the arbitration agreement required Franco to arbitrate her claims on an individual basis only.

The Court of Appeal, Fourth District, Division One, held in a published opinion, Universal Protection Service, L.P. v. Superior Court (2015) 234 Cal.App.4th 1128, that the parties’ agreement to resolve their arbitration under the AAA rules constitutes clear and unmistakable evidence of their intent that the arbitrator, not the court, interpret the arbitration agreement and decide whether it permits arbitration of class and/or representative claims.

Review Denied (with dissenting justices)

None.

Depublished

None.