July 24, 2014

Summary of July 23, 2014 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, July 23, 2014.  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

DKN Holdings v. Faerber, S218597—Review Granted, Issues Limited—July 23, 2014

The lessor of a commercial property brought an action against three co-leasees for past due rents.  The lessor dismissed without prejudice two of the parties and received a $3 million judgment against the third party which remains unsatisfied.  The lease specified all lessees were “jointly and severally responsible.”  The lessor then brought the present action against the other two lessees for the unpaid rent.  The trial court sustained the two lessees’ demurrers without leave to amend.

In a published opinion, DKN Holdings LLC v. Faerber (2014) 225 Cal.App.4th 1115, the Court of Appeal, Fourth District, Division Two, affirmed.  It held “the complaint does not and cannot state a cause of action against [the lessees] for monies due under the lease, because [the lessor’s] claims against [the lessees] in the present action are barred by the claim preclusion aspect of the res judicata doctrine.”

In granting review the Supreme Court limited the issues to the following: (1) Whether parties that are jointly and severally liable on an obligation can be sued in separate actions, and (2) whether the opinion of the Court of Appeal conflicts with the opinion of this court in Williams v. Reed (1957) 48 Cal.2d 57.

People v. Safety National Casualty Insurance Co., S218712—Review Granted—July 23, 2014

Safety National Casualty Company executed a bail bond on behalf of Eshaddai Bent in the amount of $25,000.  When Bent failed to personally appear at a pretrial conference, the trial court ordered the bail amount forfeited. Safety National moved to vacate the forfeiture, and the trial court denied that motion.

In a published opinion, People v. Safety National Casualty Insurance Co. (2014) 225 Cal.App.4th 438, the Court of Appeal, Second District, Division Eight, reversed, ordering the trial court to vacate the bond forfeiture. The Court of Appeal held: (1) the statement “bail will stand” did not equate to an order for the defendant to appear at the next hearing; (2) the conference in question was not a “readiness” conference which requires the defendant’s presence under California Rules of Court, Rule 4.112; and (3) case law did not require the defendant’s presence under Penal Code section 977. With the defendant not being required to attend by law or by court order, the Court of Appeal determined the order forfeiting the bond amount was improper, and should be vacated.

The questions presented are whether the trial court abused its discretion in ordering the bond amount forfeited, or whether the forfeiture was proper in light of the defendant’s absence at the pretrial conference.

deSaulles v. Community Hospital of the Monterey Peninsula, S219236—Review Granted—July 23, 2014

Plaintiff, an employee of the defendant hospital, brought suit alleging seven causes of action.  The parties entered a settlement agreement where the defendant paid $23,500 in exchange for dismissal with prejudice of two of plaintiff’s claims.  As to her remaining causes of action, the trial court granted summary adjudication in favor of defendant as to one, and then ruled in defendant’s favor on the remainder.  After entry of judgment, both parties moved for costs as the “prevailing party” under Code of Civil Procedure section 1032. The trial court ruled the defendant was the prevailing party, granting its motion for $12,731.92 in costs, and denying the plaintiff’s motion.

In a published opinion, deSaulles v. Community Hospital of Monterey Peninsula (2014) 225 Cal.App.4th 1427, the Sixth District Court of Appeal reversed, holding that “since the parties’ settlement was silent regarding costs, [the defendant’s] payment of $23,500 triggered mandatory costs as a ‘net monetary recovery’ under the plain language of the statute.”

The question presented is whether an award of costs to either party as the “prevailing party” was proper, given the settlement award to plaintiff despite judgment in favor of defendant on all the remaining claims.

Review Denied (with dissenting justices)

Imburgia v. DIRECTV, S218686—Review Denied [Baxter, J., voting for review]—July 23, 2014

The plaintiff filed a class action against DIRECTV on a variety of grounds, alleging DIRECTV was improperly charging its customers early termination fees. DIRECTV moved to stay or dismiss the action, decertify the class, and compel arbitration based on the arbitration provision in its consumer agreement. The trial court denied DIRECTV’s motion.

In a published opinion, Imburgia v. DIRECTV, Inc. (2014) 225 Cal.App.4th 338, the Court of Appeal, Second District, Division One, affirmed the trial court’s ruling holding that “the parties’ entire arbitration agreement is unenforceable, pursuant to the agreement’s express terms, because the law of plaintiffs’ state would find the class action waiver unenforceable.”

The question presented was whether the motion to compel arbitration was properly denied based on the parties’ contract and prevailing law.

Depublished

None.

July 23, 2014

Sentencing, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in two criminal law cases, both of which were argued on the early-May calendar.

In People v. Whitmer, the court is faced with the issue whether the defendant was properly sentenced on multiple counts of grand theft or whether his multiple takings constituted a single offense under People v. Bailey (1961) 55 Cal.2d 514.

People v. Boyce is an automatic appeal from a September 2000 judgment of death.

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

July 22, 2014

Stanford law professor Mariano-Florentino Cuéllar nominated to Supreme Court [UPDATED]

Governor Brown this morning announced the nomination of Mariano-Florentino Cuéllar to the Supreme Court.  Cuéllar is a law professor at Stanford.  His was among the names being mentioned for the court.  [UPDATE:  Cuéllar was reported to have been on the governor's short list in 2011 of possible replacements for Justice Carlos Moreno.  That appointment went to Goodwin Liu.]

Although announced today, Cuéllar will not join the court for over five months, because he is being nominated to fill the vacancy that will be created by Justice Marvin Baxter’s retirementFirst, he must be confirmed by the Commission on Judicial Appointments and then by the voters at the November election.  If both occur, he will take his seat when Justice Baxter’s term expires on January 5, 2015.Cuellar

The governor still has one high court vacancy to fill, an appointee to replace Justice Joyce Kennard.  Because of the different ways that Justices Baxter and Kennard chose to leave their positions, Justice Kennard’s successor could be seated on the court before Cuéllar.

With the nomination of Cuéllar, Governor Brown continues his trend (if two is a trend) of appointing northern California law professors in their early 40′s to the Supreme Court.  Cuéllar is 41.  Justice Goodwin Liu, who was appointed almost three years ago to the day, was teaching at UC Berkeley’s law school.

According to the governor’s press release, Cuéllar was born in Matamoros, Mexico, and for a number of years walked across the border each day to attend school in neighboring Brownsville, Texas.  At age 14, he moved with his family to the Imperial Valley of California.  His undergraduate degree is from Harvard College, he graduated from Yale Law School, and he earned a Doctor of Philosophy degree in political science from Stanford University, where he started teaching in 2001.  Cuéllar served as special assistant to President Obama for Justice and Regulatory Policy at the White House Domestic Policy Council and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group.  He served as a law clerk to Ninth Circuit Judge Mary M. Schroeder and was a senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.  Cuéllar is married to U.S. District Judge Lucy H. Koh of the Northern District of California.

July 18, 2014

Summary of July 16, 2014 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, July 16, 2014.  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

Horiike v. Coldwell Banker Residential Brokerage Company, S218734—Review Granted—July 16, 2014

This case presents the following issue:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality and counseling to both?

In this case, the salesperson misinformed the buyer of the amount of living area insisting there were 15,000 square feet of living space when he knew there were less than 9,500.  After completing the property transaction, the buyer discovered the misinformation and filed a complaint against both the brokerage company and the salesperson for, among other things, breach of fiduciary duty.

The trial court found in favor of the salesperson, holding that although the salesperson made a false representation of material fact, he was not liable since he “honestly believed, and had reasonable grounds for believing, the representation was true when he made it.”

In a published opinion, Horiike v. Coldwell Banker Residential Brokerage Company, B246606, the Court of Appeal, Second District, Division Five, reversed and remanded.  The Court cited Civil Code section 2079.13, subdivision (b) which states, “[t]he agent in the real property transaction bears responsibility for his or her associate licensees who perform as agents of the agent.  When an associate licensee owes a duty to any principal, or to any buyer or seller who is not a principal, in a real property transaction, that duty is equivalent to the duty owed to that party by the broker for whom the associate licensee functions.”

Accordingly, since the salesperson was an associate licensee acting on behalf of the brokerage company, he owed the same fiduciary duty owed by the broker.

Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., S218497—Review Granted—July 16, 2014

This case presents the following issues:  (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code section 1371.4, subdivision (e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay?  (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees?

Under Health and Safety Code section 1371.4, subdivision (e), an HMO must reimburse physicians for emergency health care services provided to its enrollees even when the physicians are not under contracts to the HMO’s.  In this case, the defendant HMO delegated its health care obligations to an IPA, making the IPA liable for any payments to the physicians.  When the IPA failed to make payments because of financial hardship, the physicians sought payment from the HMO.  When the HMO failed to reimburse the physicians, they sued the HMO for negligent delegation of its responsibility to the IPA.

In a published decision written by Justice Walter Croskey, the Court of Appeal, Second District, Division Three, held the HMO liable to the physicians on the ground that an HMO has a duty not to delegate its obligation to reimburse emergency physicians to an IPA it knows or has reason to know will be unable to pay.

Review Denied (with dissenting justices)

None.

Depublished

None.

July 16, 2014

The Judicial Council’s administrative arm will no longer be known as the “Administrative Office of the Courts”

The much-maligned Administrative Office of the Courts (AOC) is no more.  Well, sort of.  The Daily Journal[subscription required] reported recently that the Judicial Council voted to stop using the title “Administrative Office of the Courts” when referring to the Council’s administrative arm.  According to leaders of the judicial branch, the name had become an obstacle and a source of confusion during budget negotiations.  The Daily Journal quotes recently retired AOC director Steven Jahr as saying the name gave the misimpression that the AOC functions separately from the Judicial Council and caused lawmakers to conclude incorrectly that the AOC had “direct authority over trial court operations.”

All that may be true.  But, as we have often noted, for several years the AOC has been a lightning rod for critics of centralized court administration in California.  It is therefore not too surprising that those critics have been underwhelmed by what they perceive to be the current effort at “‘[r]ebranding.’”  The Daily Journal quotes Judge Maryanne Gilliard, a leader of the Alliance of California Judges, the AOC’s longtime critic, as saying:  “‘The fact that they are dumping their name should be a wakeup call that instead of just a name change we need a regime change.’”

The Daily Journal piece notes that valid criticisms concerning inefficiency and unaccountability have been leveled at the AOC in recent years.  But it also notes that, “[u]nder [Chief Justice Tani] Cantil-Sakauye, the branch has sought to implement reforms, reorganizing the leadership structure, withdrawing autonomy formerly granted to its director positions and redefining the role of its various offices. It’s currently using outside contractors to audit and review the AOC’s staffing as well.”

Only time will tell if the name change brings about “‘a perceptual change, perhaps even a cultural change,’” as Jahr predicts.  But in the meantime, we assume the owners of a certain Los Angeles dining establishment are pleased.

July 12, 2014

Employment compensation opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Peabody v. Time Warner Cable, Inc.  In that case, the court will answer this question at the Ninth Circuit’s request:  May an employer, consistent with California’s compensation requirements, allocate an employee’s commission payments to the pay periods for which they were earned?  Peabody was argued in June.

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

July 11, 2014

Summary of July 9, 2014 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, July 9, 2014.  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

Ramos v. Brenntag Specialties, S218176—Review Granted—July 09, 2014

The defendants in this case include companies that supply aluminum and other raw materials to manufacturers.  The plaintiff worked for one of those manufacturers, and allegedly breathed fumes emitted from the melting of aluminum during the manufacturing process.  The plaintiff sued the defendants under a product liability theory, but the trial court sustained the defendant’s demurrer based on Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, which held that a supplier of a nondefective multiuse material (like aluminum) is not responsible for injuries resulting from the manufacturing of the raw material.

The Court of Appeal, Second Appellate District, Division Four, reversed in a published opinion, expressly disagreeing with Maxton.  It held that a duty to workers in plaintiff’s position arises where it is foreseeable that the raw material will be used in processes that may pose health hazards, even where the raw material posed no health hazard when transferred from the supplier to the manufacturer.

The Supreme Court granted review to resolve the conflict between this case and Maxton.  The Supreme Court’s decision reflects its renewed scrutiny of the application of products liability doctrines outside the traditional context in which those doctrines were developed.  In O’Neil v. Crane Co. (2012) 53 Cal.4th 335, the Supreme Court rejected a plaintiff’s effort to hold a manufacturer responsible for injuries caused by third-party replacement parts.  Webb v. Special Electric, S209927, currently pending before the Supreme Court, raises a question similar to the issue presented in Ramos:  whether a broker who sold raw asbestos to a manufacturer of asbestos-containing products can be liable for injuries allegedly caused by exposure to those products, where undisputed evidence shows that the manufacturer knew more than the supplier about the potential hazards of asbestos.  [Full disclosure: Horvitz & Levy LLP represents one of the defendants who petitioned for review in Ramos.  Horvitz & Levy also represents the defendant in Webb, and represented the defendant in O'Neil. ]

Citizens for Environmental Responsibility v. 14th District Agricultural Association (Stars of Justice), S218240—Review Granted and Held—July 09, 2014

The 14th District Agricultural Association (District), owner of Santa Cruz County Fairground, contracted with Stars of Justice to operate a rodeo at the Fairground.  Pursuant to the California Environmental Quality Act (CEQA), the Fairground was prohibited from partaking in activities that would contaminate the water sources in the nearby areas.  However, the Class 23 categorical exemption allowed the continuation of “normal operations of existing facilities for public gatherings for which the facilities were designed, where there is a past history of the facility being used for the same or similar kind of purpose” (Cal. Code Regs., tit. 14, § 15323), which included rodeos and other events involving livestock.  The plaintiffs, including the Citizens for Environmental Responsibility and Stop the Rodeo, contended that livestock runoff from the rodeo would pollute surrounding ground water.

The trial court denied the plaintiffs’ petition for writ of mandate and complaint for declaratory and injunctive relief, concluding that the rodeo project was a normal activity of the Fairground within the meaning of the exemption.  The Third District Court of Appeal affirmed in a published decision.

The Supreme Court granted review and deferred briefing pending consideration and disposition of a related issue in Berkeley Hillside Preservation v. City of Berkeley, S201116, which presents the following issue: “Did the City of Berkeley properly conclude that a proposed project was exempt from the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) under the categorical exemptions set forth in California Code of Regulations, title 14, sections 15303, subdivision (a), and 15332, and that the ‘Significant Effects Exception’ set forth in section 15300.2, subdivision (c), of the regulations did not operate to remove the project from the scope of those categorical exemptions?”

Gillespie v. Svale Del Grande, S218704—Review Granted and Held—July 09, 2014

After purchasing a used car from defendant’s car dealership, the plaintiff filed a class action alleging violations of the Civil Code, Vehicle Code, Public Resources Code, and Business & Professions Code.  The defendant filed a petition to compel arbitration, relying on the parties’ arbitration agreement and class action waiver.  The plaintiff argued the class action waiver was illegal under the Consumers Legal Remedies Act, and that the arbitration clause was unenforceable on grounds of unconscionability.  The trial court held the class action waiver was enforceable but it refused to sever the unconscionable provisions of the arbitration clause.  It therefore declined to enforce the arbitration agreement.

The Sixth District Court of Appeal held in an unpublished opinion that the class action waiver was enforceable but the three other provisions in the arbitration clause were unconscionable.  It reversed the trial court’s order denying the petition to compel arbitration, and remanded for a determination whether to sever the three unconscionable provisions.

The Supreme Court granted reviewed and deferred briefing pending consideration and disposition of a related issue in Sanchez v. Valencia Holding Co., S199119, which presents the following issue:  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. __, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?”

Center for Biological Diversity v. California Department of Fish and Game (Newhall and Farming Company),  S217763—Review Granted—July 09, 2014

The plaintiffs challenged Los Angeles County’s approval of the Newhall Ranch Resource Management and Development Plan, including the environmental impact statement and impact report.  The trial court entered a judgment in favor of the plaintiffs, issuing a writ of mandate requiring the County to void its certification of the impact report with respect to five different issues. The Court of Appeal, Second District, Division Five, reversed in a partially published opinion, with directions that judgment be entered in favor of the defendants.

The question presented is whether the County properly certified the environmental impact report and development plan.

Gray1 CPB, LLC v. SCC Acquisitions, Inc., S218699—Review Granted and Held—July 09, 2014

The plaintiff obtained a judgment for $9.1 million.  After several attempts to collect the judgment, the defendant’s attorney hand-delivered a cashier’s check to plaintiff for almost $13 million in satisfaction of the judgment. Twelve days later, plaintiff filed a motion for postjudgment costs, claiming it spent $3.1 million in attorney’s fees to collect the judgment.  The defendant, citing Code of Civil Procedure section 685.080, argued the plaintiff’s motion was untimely because “a motion for costs, including attorney fees permitted by section 685.040 [must] be filed before the judgment has been fully satisfied.”  The defendant asserted the judgment was satisfied upon plaintiff’s receipt of the cashier’s check.  The plaintiff, however, argued the judgment was not satisfied until the check was honored by the issuing bank.

The Court of Appeal, Fourth District, Division Three, held in a published opinion that, under Commercial Code section 3310 (UCC §3310), a judgment paid by a cashier’s check is deemed satisfied upon acceptance of the payment by the receiving party.  (Comm. Code § 3310 [“[u]nless otherwise agreed, if a . . . check is taken for an obligation, the obligation is discharged to the same extent discharge would result if any amount of money equal to the amount of the instrument were taken in payment of the obligation”].)  The court thus held plaintiff’s costs motion untimely because it was not filed until twelve days after it accepted the defendant’s cashier’s check.  The court rejected plaintiff’s reliance on Code of Civil Procedure section 724.050 subdivision (c), on the ground that it only “addresses the timing of a judgment creditor’s obligation to file an acknowledgement of satisfaction, not when a judgment is deemed to have been fully satisfied.”

The Supreme Court granted reviewed and deferred briefing pending consideration and disposition of a related issue in Conservatorship of McQueen, S209376, which presents the following issue:  “Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc., § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)?”

Review Denied (with dissenting justices)

None.

Depublished

Pielstick v. Midfirst Bank, S217575—Depublished—July 09, 2014

The trial court denied the plaintiff’s request for voluntary dismissal on the ground the request was made after the commencement of the hearing on the defendant’s demurrer.  Instead, the court sustained the defendant’s demurrer without leave to amend.

The Court of Appeal, Second District, Division Two, held in a published opinion, Pielstick v. Midfirst Bank (2014) 224 Cal.App.4th 1452, that the plaintiff had not made his request “before the actual commencement” of the demurrer hearing.  It relied on Mary Morgan, Inc. v. Melzark (1996) 49 Cal.App.4th 765, where the court denied a party’s attempt to voluntarily dismiss its case during a summary judgment hearing.  The court analogized here that a plaintiff should similarly not be allowed to request voluntary dismissal during a demurrer hearing.  The court reasoned that a contrary rule would allow a plaintiff to restart his complaint if it was not initially going well, as the plaintiff appeared to seek to do in the present case.

The Supreme Court ordered that the Court of Appeal’s opinion not be published in the official reports.

July 9, 2014

Lesser included offense, three strikes opinions filing tomorrow

Tomorrow morning, the Supreme Court will file two criminal law opinions.

People v. Eid raises the question:  Can a defendant be convicted of two separate, uncharged, lesser included offenses of a single charged offense if the lesser offenses are not included in each other?

In People v. Vargas, the Supreme Court limited the parties’ argument to the issue whether the trial court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, by failing to dismiss one of defendant’s two strikes, given that they arose from the same act.

Vargas was argued in early MayEid was on the court’s late-May calendar.

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

July 7, 2014

SCOTUS sometimes more liberal on criminal law issues than California’s Supreme Court

The U. S. Supreme Court recently disagreed with the California Supreme Court on the issue of cell phone privacy, holding that police must get a warrant to search an arrested suspect’s cell phone.  Emily Green reports in today’s Daily Journal [subscription required] that the cell phone issue is not the only one where the country’s high court has taken a more defendant-friendly position than the state high court.  This could change with Governor Brown’s opportunity to reshape the California court.  One area where new appointments to the court might make a difference is in reviewing claims of racial discrimination in jury selection, an issue where Justice Liu is on record as saying that the court’s “jurisprudence . . . appears noticeably out of step with principles set forth by the United States Supreme Court.”

July 3, 2014

One for the books

When the Supreme Court orders an opinion depublished, the opinion disappears (or, as Presiding Justice Arthur Gilbert memorably put it, the opinion “never happened”); the opinion does not appear in the official reports and cannot be cited as precedent in other cases.  A recent depublication request and the court’s handling of it raise questions about the practice that are not clearly covered by the rules.

In People v. Spriggs (2014) 224 Cal.App.4th 150, the Court of Appeal transferred a case from the appellate division of the superior court and reversed a conviction.  (According to the Court of Appeal, and contrary to the appellate division’s opinion, the statute that prohibits the ”using” of a cellphone “while driving” does not bar a driver from looking at a map on a cellphone.)  No problem so far, but things then went unconventional.

The Court of Appeal asked the Supreme Court to depublish the appellate division’s opinion, which was published (215 Cal.App.4th Supp. 1).  Was that a proper request?  I’m not so sure, and not just because the request was filed a day after the 30-day deadline (Cal. Rules of Court, rule 8.1125(a)(4)) for depublication requests.

First, can a Court of Appeal be the one to request depublication?  The rule provides that “[a]ny person” can make a request.  Another rule generally defines “ ’[p]erson’ ” as including “a corporation or other legal entity as well as a natural person.”  OK, so maybe a court can be considered an “other legal entity” under that definition.  But the more troublesome question is whether the Supreme Court can depublish an appellate division opinion, regardless of who is making the request.

The Supreme Court’s depublication authority comes from article VI, section 14, of the California constitution, which says, “The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate, and those opinions shall be available for publication by any person.”  The Supreme Court can thus decide which of its own opinions and which Court of Appeal opinions are “appropriate” to publish.  But the constitution does not appear to give the Supreme Court the power over publication of superior court appellate division opinions.  The depublication rules seem to allow the Supreme Court to depublish an appellate division opinion (rule 8.1105, subds. (b) and (e)(2)), but the rules were specifically adopted under article VI, section 14, and the rules can’t be inconsistent with the constitution.

None of this bothered the Supreme Court, however.  It ordered the appellate division opinion depublished.  But then things got even weirder.

It turns out that the appellate division opinion — which was filed in March 2013 — had already been in the bound volumes of the official reports for about five months when the Supreme Court ordered it depublished.  When the Reporter of Decision’s office pointed this out, the court last week vacated its depublication order.tearingpages

Spriggs shows not only that the Supreme Court might depublish superior court appellate division opinions (even if its authority to do so isn’t clear), but that the Supreme Court can reconsider its depublication orders.  Thus, questions of publication status can theoretically be left unresolved indefinitely.  We learned that when the court last year ordered published a Court of Appeal opinion almost two months after it had dismissed review in the case.  Now we also know that depublication orders can be vacated, although we don’t expect to see that happen again any time soon, if ever.  It might be appropriate to amend the rules to specify some time limits for Supreme Court publication and depublication actions.

July 3, 2014

Supreme Court to file three opinions after the holiday weekend

Giving an extra day’s notice because of the July Fourth holiday, the Supreme Court announced today that it will file three opinions on Monday morning.

In City of Los Angeles v. County of Kern, the court will decide whether 28 U.S.C. section 1367(d) requires a party to refile its state law claims within 30 days of their dismissal from a federal action in which they had been presented, or whether it instead suspends the running of the limitations period during the pendency of the claims in federal court and for 30 days after their dismissal.

Conservatorship of McQueen presents this issue:  Is a trial court award of statutorily-mandated fees and costs incurred on appeal subject to the Enforcement of Judgments Statutes (Code Civ. Proc., § 685.040 et seq.) if the statutory authority underlying the award is the Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.)?  [Disclosure:  The California Academy of Appellate Lawyers submitted an amicus curiae brief in this case.  A number of Horvitz & Levy attorneys are Academy members.]

The third case — People v. Weatherton – is an automatic appeal from an April 2002 judgment of death.

City of Los Angeles and McQueen were argued in early May.  Weatherton was on the court’s late-May calendar and will be the first case from that two-day oral argument session to have an opinion issued.

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

July 2, 2014

No conference held the week of June 30, 2014

The Court is holding no conference this week.  Accordingly, no action will be taken on petitions for review and no opinions will be ordered published or depublished.

July 2, 2014

State senator mentioned as Supreme Court candidate

There have been many people mentioned as a possible appointee (or nominee) to the California Supreme Court.  (See here, here, and here.)  Add one more name to the list:  State Senator Darrell Steinberg.

Veteran California government writer Timm Herdt suggests in his weekly column in today’s Ventura County Star that Steinberg, the current Senate President Pro Tem who will soon be termed out of the Legislature, would be “an inspired choice” for one of the two current vacancies on the court.  The Nooner political blog agrees.  According to Herdt, Governor Jerry Brown’s selection of Steinberg “would anchor the court with someone with knowledge of California law that is far broader, if potentially not as deep in some areas, than anyone who comes from a judicial background.”  Steinberg is also a law school classmate of Chief Justice Tani Cantil-Sakauye.

It’s been a long time since an elected public official has been chosen for the California Supreme Court (or the United States Supreme Court, for that matter).  For California, I believe it’s been 50 years, since Governor Pat Brown appointed then California Attorney General Stanley Mosk to the court.

Herdt’s column shouldn’t be brushed off.  Six months before Governor Jerry Brown appointed Goodwin Liu to the court, another political writer suggested Liu as a good candidate when Liu’s name was not on many people’s radars.

July 2, 2014

Justice Kennard’s final opinions

It is worth recognizing a significant milestone that occurred this week:  the official end of a 25-year Supreme Court career.

Justice Joyce Kennard retired from the Supreme Court soon after the court’s April calendar.  But she continued to serve as a pro tem justice on those cases in which she heard oral argument and in which opinions had not been issued before her retirement.  Opinions in the last two of those cases were filed Monday.

In Ayala v. Antelope Valley Newspapers, she concurred in the the five-justice lead opinion (there were two concurring opinions).  She authored the court’s opinion for six justices in People v. Sattiewhite (one justice concurred separately).

July 2, 2014

Architect liability, unemployment insurance opinions filing tomorrow, but 25 more cases remain in the pipeline

Tomorrow morning, the Supreme Court will file two civil law opinions.  Both cases were on the court’s early-May calendar.

In Beacon Residential Community Association v. Skidmore Owings and Merrill LLP, the court will decide whether an architect who provides services to a residential developer can be liable to the eventual purchasers of the residences for negligence in the rendition of those services.  [Disclosure:  Horvitz & Levy represents the defendant in this case.]

Paratransit Inc. v. Unemployment Insurance Appeals Board presents this issue:  Did the trial court properly find that employee misconduct within the meaning of Amador v. Unemployment Ins. Appeals Bd. (1984) 35 Cal.3d 671 disqualified a discharged employee from receiving unemployment insurance benefits?

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

The court has been filing opinions at a steady clip as of late, but there are still over two dozen argued and opinion-less cases remaining in the pipeline.  This is due to the court’s (typical) extra-heavy calendars before July and August, when the court hears no arguments.  Because of that – and the 90-day rule – there remain, after tomorrow’s filings, 8 opinions to be filed by August 4 from the court’s early-May calendar, 12 opinions to be filed by August 25 from the court’s late-May calendar, and 5 opinions to be filed by August 28 from the court’s June calendar.  (The filing deadlines are based on the assumption that the opinions will be issued only on the court’s normal Monday and Thursday filing days.)

June 27, 2014

Summary of June 25, 2014 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 25, 2014.  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

Property Reserve v. Superior Court (Department of Water Resources), S217738—Review Granted—June 25, 2014

In order to construct a tunnel diverting water from Northern California to Central and Southern California, the State sought to identify land parcels it might acquire to achieve that goal.  As part of its environmental investigation of certain parcels, it sought to documenting each parcel’s plant and animal life, and geological activities.  This required the State to conducting soil testing and boring activities on the parcels.  The State therefore filed petitions to obtain rights of entry to conduct its environmental and geological activities on those parcels.

In a published opinion, Property Reserve, Inc. v. Superior Court (2014) 224 Cal.App.4th 828, the Third District Court of Appeal held geological and environmental activities are considered intentional takings, ruling that geological activities are a permanent physical occupation of private property, which is a taking per se under the Constitution.   It therefore ruled the statutory pre-condemnation procedure on which the State relied cannot be used to avoid the eminent domain requirements.  Justice Cole Blease dissented.

The questions presented are: (1) whether the geological activities constituted a taking under the California Constitution, and if so, (2) whether those activities constituted a direct condemnation requiring the State to pay the landowners under the eminent domain doctrine.

People v. Grewal, S217896—Review Granted—June 25, 2014;  People v. Nasser, S217979—Review Granted—June 25, 2014

These cases were consolidated at the trial court level, but addressed separately on appeal.  Defendants operated Internet cafes that sold, among other things, prepaid telephone cards.  The cards allowed customers to play slot machine games on the cafes’ computers and earn sweepstakes points that could be redeemed for cash.  For every 100 points earned, customers could redeem $1.  The defendants claimed their sweepstakes program was a legitimate means to promote the sale of their telephone cards, and were not unlawful gambling practices under the Penal Code, which the People claimed them to be.

The trial court granted the People’s motions for preliminary injunctions.  The Fifth District Court of Appeal affirmed in a published opinion, People v. Grewal (2014) 224 Cal.App.4th 527, and an unpublished opinion, People v. Nasser, 2014 WL 906798.  It held the defendants violated the prohibitions against slot machines or gambling devices under Penal Code section 330b, subdivision (d).  The question presented is whether the trial court erred in granting a preliminary injunction.

Ybarra v. Apartment Investment and Management Company, S217994—Review Granted and Held—June 25, 2014

When defendant Aimco hired the plaintiff as a manager for one of its apartment communities, the parties signed an arbitration agreement prohibiting class and representative actions.  When the plaintiff filed a complaint against Aimco for violations of the Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, § 2698 et seq.), Aimco moved to compel arbitration to terminate the representative claim.  The trial court denied the motion, ruling the arbitration agreement was unconscionable and therefore unenforceable.  The Court of Appeal, Second District, Division Two, reversed in an unpublished opinion, holding the waiver was valid and enforceable because it furthered the purpose of the Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms.

The Supreme Court granted and held, ordering briefing deferred “pending consideration and disposition of a related issue in Iskanian v. CLS Transportation of Los Angeles, S204032 (see Cal. Rules of Court, rule 8.512(d)(2)), or pending further order of the court.”  This grant-and-hold order is a bit unusual since the Court decided Iskanian on June 23, two days before issuing the grant-and-hold.  But perhaps the Court has simply placed Ybarra on hold while it decides whether further briefing is required in light of its holding in Iskanian.

Cheroti v. Harvey & Madding, S218724—Review Granted and Held—June 25, 2014

The question presented is whether the trial court erred in denying the defendant’s petition to compel arbitration on grounds of unconscionability.  The Court of Appeal, First District, Division One, held in an unpublished decision that the arbitration agreement at issue was not substantively unconscionable and procedurally unconscionable only in a trivial sense.  The court therefore reversed the trial court’s denial of the petition to compel arbitration and enforce the arbitration agreement.

The Supreme Court granted review and ordered briefing deferred “pending decision in Sanchez v. Valencia Holding Co. LLC, S199119, 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. __ [131 S.Ct. 1740], preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?”

City of San Jose v. Superior Court (Smith), S218066—Review Granted—June 25, 2014

The plaintiff submitted a request to the City seeking specific public records, including conversations between public officials on their private cell phones or email accounts.  The City denied the request to access the private communications on the ground they are not included in the definition of “public records” under the California Public Records Act (CPRA) (Gov. Code, § 6250 et seq.).  The plaintiff brought an action for declaratory relief seeking disclosure of the disputed records.

The trial court granted declaratory relief, concluding the CPRA does not exclude individual officials from the definition of a “public agency,” since agencies may only act through their officers and employees.  The Sixth District Court of Appeal reversed, holding the CPRA does not require public access to communications between public officials who exclusively used their private cell phones or email accounts.

The question presented is:  “Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, ‘public records’ within the meaning of the California Public Records Act?”

Review Denied (with dissenting justices)

None.

Depublished

None.

June 27, 2014

Class action and two death penalty opinions filing Monday

On Monday morning, the Supreme Court will file three opinions:

Ayala v. Antelope Valley Newspapers presents questions concerning the determination of whether common issues predominate in a proposed class action relating to claims that turn on whether members of the putative class are independent contractors or employees.  A year ago, the court ordered the parties to file supplemental briefs discussing the relevance of Martinez v. Combs (2010) 49 Cal.4th 35, 52-57, 73, and IWC wage order No. 1-2001, subdivision 2(D)-(F) (Cal. Code Regs., tit. 8, § 11010, subd. 2(D)-(F)), to the issues in this case.  (See also Sotelo v. Medianews Group, Inc. (2012) 207 Cal.App.4th 639, 660-662; Bradley v. Networkers Internat., LLC (2012) 211 Cal.App.4th 1129, 1146-1147.)

People v. Sattiewhite is an automatic appeal from an April 1994 judgment of death.

People v. Avila is an automatic appeal from a July 2005 judgment of death.

Ayala and Sattiewhite were argued in AprilAvila was on the court’s early May calendar.

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

June 25, 2014

SCOTUS reverses California Supreme Court (sorta) on cell phone privacy

A 5-2 California Supreme Court held in People v. Diaz (2011) 51 Cal.4th 84 that police can conduct a warrantless search of an arrested suspect’s cell phone.  Today, the United States Supreme Court came to the opposite conclusion in Riley v. California and a related case.  (Adam Liptak reports in the New York Times.)

As mentioned, the California Legislature passed a bill to overrule Diaz, but Governor Brown vetoed the legislation.  Now the United States Supreme Court has conclusively overruled Diaz, although it did so indirectly.  In Riley, the Court was reviewing a California Court of Appeal decision that followed Diaz.

The Diaz majority consisted of retired Chief Justice George and Justices Kennard, Baxter, Chin (the majority opinion author), and Corrigan.  Justice Werdegar filed a dissenting opinion in which Justice Moreno joined.  Today’s Riley decision was unanimous; Chief Justice Roberts wrote the Court’s opinion and Justice Alito concurred separately.

June 25, 2014

Employment opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Salas v. Sierra Chemical Company, which was argued in April.

Initially, Salas presented the issues whether the trial court err in dismissing plaintiff’s claims under the Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) on grounds of after-acquired evidence and unclean hands, based on plaintiff’s use of false documentation to obtain employment in the first instance, and whether Senate Bill No. 1818 (2001-2002 Reg. Session) precludes application of those doctrines in the case (see Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000; Lab. Code, § 1171.5).  Later, the court asked for supplemental briefing on this issue:  Does federal immigration law preempt state law and thereby preclude an undocumented worker from obtaining, as a remedy for a violation of “state labor and employment laws” (Lab. Code, § 1171.5; Civ. Code, § 3339; Gov. Code, § 7285; Health & Saf. Code, § 24000), an award of compensatory remedies, including backpay? (See Hoffman Plastic Compounds, Inc. v. NLRB (2002) 535 U.S. 137.)

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

June 24, 2014

Article explores Governor Brown’s opportunity to reshape the Court with three appointments

In an article in Monday’s Daily Journal[subscription required], Emily Green explores the fact that Governor Brown now has the opportunity to appoint a total of three justices to the Supreme Court.  He appointed Justice Goodwin Liu in 2011, and now must appoint replacements for Justice Joyce Kennard (who retired in April) and Justice Marvin Baxter (who will not seek reelection this year).

So what kind of justices is Brown likely to appoint?  Green quotes First District Court of Appeal Justice J. Anthony Kline, who served as Brown’s legal affairs secretary in the 1970’s, as saying Brown wants to appoint more justices like Liu.  Green interprets that to mean accomplished progressive intellectuals who “stir[] the pot” and “‘question conventional attitudes.’”

Green describes the present Court (other than Justice Liu) as embodying “what might be described as old school Republicanism: business-friendly, but not overwhelmingly so, conservative on criminal cases, and moderately progressive on social issues.”  No doubt the addition of two more smart, left-leaning justices could cause some ripples and might alter the balance of power on such a court.  But only time will  tell if former Second District Court of Appeal Justice Miriam Vogel is correct to be concerned that, as a result, the Court may become “‘less friendly to business.’”