October 20, 2017

Summary of October 18, 2017 conference report for civil cases

In its conference on Wednesday, October 18, 2017, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered depublished.

October 18, 2017

Supreme Court will not lower bar exam passing score, at least not now

A few months ago, it looked like the Supreme Court might make it easier to pass the California bar exam.  Today, the court said it will not do so “at this time,” even while acknowledging that California’s passing score is the second highest in the country.

The court is not closing the door to future action, however, saying it “will consider any appropriate recommendation to revisit the pass score in the next review cycle, or sooner if the court so directs.”  Additionally, the court encourages the State Bar and California law schools to examine “whether potential improvements in law school admission, education, and graduation standards and in State Bar testing for licensure, combined with effective regulatory oversight of legal education, could raise bar exam pass rates.”

October 18, 2017

The Chief Justice is a Harvard blogger

The Harvard Law Review launched a blog yesterday.  One of the inaugural posts is by Chief Justice Tani Cantil-Sakauye — “Costs of money bail to justice.”

The Chief Justice writes that “[c]hronic underfunding combined with unstable funding formulas for courts created a pay-to-play model for access to justice” and that the model “disproportionately impacts ethnically diverse communities and the poor.”

October 14, 2017

Ninth Circuit refuses habeas relief from death sentence affirmed by Supreme Court

Twenty-two years ago, the Supreme Court unanimously affirmed Ricardo Sanders’ death sentence.  (People v. Sanders (1995) 11 Cal.4th 475.)  A few months later, the court summarily denied his state habeas corpus petition.  Yesterday, the Ninth Circuit affirmed a district court’s denial of federal habeas relief, in Sanders v. Cullen.

Sometimes the Ninth Circuit validates Supreme Court rulings (e.g., here and here), sometimes it doesn’t (e.g., here and here).

October 13, 2017

Summary of October 11, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on October 11, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Hussein v. Driver, S240506 – Review Granted and Held – April 12, 2017

In an unpublished opinion, Hussein v. Driver (Jan. 27, 2017, A144786) 2017 WL 383387, the Court of Appeal, First District, Division Four, reversed an order awarding attorney fees in a civil action on the basis that a trespass claim had been settled, resulting in the voluntary dismissal of that cause of action with each party to bear its own fees.

Review was originally granted on April 12, 2017, but was not previously reported due to an oversight. The court ordered briefing deferred pending decision in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536, which includes the following issues:  (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement?  (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?  As we previously noted, the Court decided Mountain Air on July 31, holding in a 4-3 decision that assertion of an agreement as an affirmative defense does not trigger the attorney fees provision in that agreement.

Association for Los Angeles Deputy Sheriffs v. Superior Court, S243855 – Review Granted and Issues Limited – October 11, 2017

In a published opinion, Association for Los Angeles Deputy Sheriffs v. Superior Court (2017) 13 Cal.App.5th 413, the Court of Appeal, Second District, Division Eight, held the Los Angeles County Sheriff’s Department could not release to prosecutors the names of individual sheriff’s deputies whose personnel files contained sustained allegations of misconduct even if they were potential witnesses in pending prosecutions, without an order obtained pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, and the Pitchess statutes.

The Court directed the parties to brief the following issue: When a law enforcement agency creates an internal Brady list (see Brady v. Maryland (1963) 373 U.S. 83; Gov. Code, § 3305.5), and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion?  We discussed this case yesterday in this post.

Supplemental Briefing Requested

Jameson v. Desta, S230899 – Supplemental Briefing Requested – October 11, 2017

In a published opinion, Jameson v. Desta (2015) 241 Cal.App.4th 491, the Court of Appeal, Fourth District, Division One, held the trial court was not required to provide a court reporter for a prisoner’s personal injury lawsuit, even though the prisoner had obtained a fee waiver, where the trial court informed the parties of the unavailability of an official court reporter 10 days before the commencement of the jury trial, and there was no evidence that the prisoner attempted to “arrange for the presence of a certified shorthand reporter to serve as an official pro tempore reporter.”  Additionally, it ruled that the prisoner’s failure to provide a pro tempore court reporter after the trial court informed the parties that it would not provide an official court reporter precluded the prisoner from challenging the trial court’s grant of nonsuit on the prisoner’s personal injury claims, since the record on appeal did not contain a reporter’s transcript.

The Supreme Court granted review in January 2016.  This week, the Court directed supplemental briefing on the following issue:  What effect, if any, does the 2015 amendment to California Rules of Court, rule 3.55(7), and the accompanying Advisory Committee Comment have on the resolution of the issue presented by this case?

Order Limiting Issues to be Decided

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, S239777 – Issues Limited – October 11, 2017

In a published opinion, Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, the Court of Appeal, Fourth District, Division Three, held that an anti-SLAPP motion filed within 60 days of service of a third amended complaint, when no previous anti-SLAPP motion had been filed, was untimely with regard to causes of action that had appeared in the prior complaints, but was timely with respect to newly asserted claims.

The Supreme Court granted review in March.  This week, the Court ordered the issue to be argued and decided limited to the following:  May a motion to strike under Code of Civil Procedure section 425.16 be brought against any claim in an amended complaint or only against claims appearing for the first time in the amended complaint?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 13, 2017

Governor signs Liu-inspired juvenile Miranda bill

Governor Jerry Brown on Wednesday signed Senate Bill 395, which will generally require that minors under 16 consult with an attorney before a custodial interrogation.  The legislation was inspired, at least in part, by Justice Goodwin Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the 2015 denial of review in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  (See also here and here.)

October 12, 2017

“State high court to rule on naming deputies.” Review granted one day after reply filed.

Maya Lau of the Los Angeles Times reports on the Supreme Court’s grant of review yesterday in Association for Los Angeles Deputy Sheriffs v. Superior Court.

When it granted review, the court limited the issue to be briefed to this:  When a law enforcement agency creates an internal Brady list (see Gov. Code, § 3305.5), and a peace officer on that list is a potential witness in a pending criminal prosecution, may the agency disclose to the prosecution (a) the name and identifying number of the officer and (b) that the officer may have relevant exonerating or impeaching material in his or her confidential personnel file, or can such disclosure be made only by court order on a properly filed Pitchess motion? (See Brady v. Maryland (1963) 373 U.S. 83; People v. Superior Court (Johnson) (2015) 61 Cal.4th 696; Pitchess v. Superior Court (1974) 11 Cal.3d 531; Pen. Code, §§ 832.7-832.8; Evid. Code, §§ 1043-1045.)

The court didn’t waste any time in granting review.  It granted extension requests for the answer to the petition for review and for the reply to the answer (for the reply, the court granted 8 days instead of the requested 14), but it didn’t extend its own time to rule on the petition and granted review only one day after the reply was filed.

There might be no delay in the opinion, either.  In a case with a similar issue (and which the court cited in yesterday’s grant order) — People v. Superior Court (Johnson) — the court filed its opinion only eight months after granting review.

 

October 11, 2017

Divided Ninth Circuit overturns Supreme Court habeas waiver ruling

Sixteen years ago, the Supreme Court dismissed William Kirkpatrick’s habeas corpus petition, having seven years before that affirmed Kirkpatrick’s 1984 death sentence on automatic direct appeal.  The dismissal was based on Kirkpatrick’s request to withdraw his petition, a referee’s report on his mental competence to make the request, and on the court’s finding that he had made “a knowing, intelligent, and voluntary waiver of his right to proceed on this petition.”

Yesterday, a 2-1 Ninth Circuit panel (in Kirkpatrick v. Chappell) disagreed with the “knowing, intelligent, and voluntary” finding, concluding that Kirkpatrick’s habeas claims “were erroneously dismissed as waived by the California Supreme Court.”  The opinion is by Judge Stephen Reinhardt, with Judge Kim McLane Wardlaw concurring.  Judge Alex Kozinski dissents, saying Kirkpatrick “seems crazy like a fox” and “is playing us,” but also claiming — in a blistering critique of the state’s capital punishment system — that “none of this matters because California doesn’t have a death penalty.”  The ruling reverses the district court’s dismissal of Kirkpatrick’s federal habeas claims as unexhausted.

There might not have been any disagreement at the court in 2001 about “knowing and intelligent” waivers of rights, but there is now.

October 11, 2017

“A Year in Review at the Supreme Court of California”

Now posted on the California Courts website is a review of the Supreme Court’s term (September 1, 2016 – August 31, 2017).  Besides narratives and photos of court highlights, the review includes “key” court statistics, such as the number of opinions (87), filings (7,133 petitions for review and original proceedings), and depublished opinions (12).

October 11, 2017

Chief Justice and federal judges on SF “Views from the Court” program

Chief Justice Tani Cantil-Sakauye will join Northern District Chief Judge Phyllis Hamilton and District Judges Susan Illston and William Orrick on November 13, from 5:30-7:00, in a program called, “Views from the Court.”  The program will be held in the Thelton Henderson Ceremonial Courtroom at the U.S. Courthouse in San Francisco.  Contact Kim McDonald to attend.

October 10, 2017

Still shorthanded court will hear (only) five cases on the November calendar (because the court is shorthanded?) [Updated]

It’s been seven months since Justice Kathryn Werdegar announced her retirement and 40 days since she left the bench, but the Supreme Court is now planning for its third oral argument calendar in a row with a vacancy.  On the court’s November calendar — announced today — there will be five cases and five more Court of Appeal justices serving as pro tems.

This is speculative, but the calendar might have had more cases on it if there weren’t still a vacancy.  For starters, there are now just six justices, instead of seven, working up cases for oral argument, so the supply of argument-ready cases is probably smaller.  For another, the court might be trying to avoid the institutional problem of having any 4-3 opinions with a pro tem justice in the majority.  The court’s Operating Practices and Procedures (see here) says the court typically considers for oral argument only those cases in which a “calendar memorandum has been approved by at least four justices or is likely to be approved by four justices at [a preargument] conference [that is held to identify cases ready for argument].”  (See also here.)  A case that is dividing the justices and that would be considered at a preargument conference by a seven-member court might not make the conference agenda when the court is shorthanded.

On November 7, in Sacramento, the court will hear the following cases (with the issue presented as stated on the court’s website):

Hernandez v. Restoration Hardware, Inc.:  Must an unnamed class member intervene in the litigation in order to have standing to appeal?  (See Eggert v. Pac. States S. & L. Co. (1942) 20 Cal.2d 199.)  The court granted review 16 months ago.  (First District, Division One, Court of Appeal Justice Sandra Margulies is the pro tem.)

Solus Industrial Innovations, LLC v. Superior Court:  Does federal law preempt a district attorney’s attempt to recover civil penalties under California’s unfair competition law based on an employer’s violation of workplace safety standards that resulted in the deaths of two employees?  (Sixth District Court of Appeal Justice Nathan Mihara is the pro tem.)
Writ petitions are supposed to lead to expedited review, but, for this one, not so much.  The court granted review two years and nine months ago.  And that was the third time the court granted review.  The court had earlier twice granted review and transferred the case back to the Court of Appeal for reconsideration.  (Here and here.)  The writ petition was filed in the Court of Appeal almost five years ago.

People v. Chatman:  Does Penal Code section 4852.01 deny equal protection by making a former felony probationer, who was subsequently incarcerated on a new offense, ineligible for a certificate of rehabilitation, because a former felony prisoner, who was subsequently incarcerated on a new offense, is not ineligible?  The court granted review 11 months ago.  (The pro tem justice has not yet been assigned for this case.)

McMillin Albany LLC v. Superior Court:  Does the Right to Repair Act (Civ. Code, § 895 et seq.) preclude a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?  The court granted review 23 months ago.  (Second District, Division One, Court of Appeal Justice Elwood Lui is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus curiae brief in this case.]

People v. Perez:  This is an automatic direct appeal from a January 2002 judgment of death.  The court’s website does not list issues for such appeals.  However, in August, the court requested supplemental briefing about “the effect of recent precedent on the hearsay and confrontation clause issues” related to a particular witness’s testimony.  (First District, Division Three, Court of Appeal Justice Martin Jenkins is the pro tem.)

[October 11 update:  The revised calendar shows that Third District Court of Appeal Justice William Murray, Jr., will be the pro tem in Chatman.]

 

October 10, 2017

Cert denied in harmless “serious constitutional error” case

In People v. Merritt, a divided Supreme Court found in March that the trial court had committed “serious constitutional error” in not instructing on the elements of a charged crime, but it also nonetheless concluded that the error was harmless.  Today, the U.S. Supreme Court denied certiorari in the case.

October 7, 2017

The justices answer high school students’ questions

The Supreme Court held an outreach session with San Diego high school students, apparently as part of the court’s special calendar a year ago in conjunction with the 2016 State Bar meeting.  Short videos of six of the justices answering student questions have just been made available.

You can watch Chief Justice Tani Cantil-Sakauye explain the Chief Justice’s role, now-retired Justice Kathryn Werdegar talk about the honors she’s most proud of, Justice Carol Corrigan discuss the reason there are both state and federal courts, Justice Goodwin Liu speak about the influence on his career of being the son of immigrants, Justice Mariano-Florentino Cuéllar answer — in both Spanish and English — a question about what he loves most about his job, and Justice Leondra Kruger tell a student about the hardest part of deciding a case.

October 6, 2017

No conference held the week of October 2, 2017

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

October 3, 2017

Summary of September 27, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on September 27, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Black Sky Capital v. Cobb, S243294–Review Granted–September 27, 2017

This case presents the following question: Does Code of Civil Procedure section 580d permit a creditor that holds both a senior lien and a junior lien on the same parcel of real property arising from separate loans to seek a money judgment on the junior lien after the creditor foreclosed on the senior lien and purchased the property at a nonjudicial foreclosure sale?

In a published opinion, Black Sky Capital, LLC v. Cobb (2017) 12 Cal.App.5th 887, the Court of Appeal, Fourth District, Division Two, held the trial court erred in applying Simon v. Superior Court (1992) 4 Cal.App.4th 63, to the facts of this case and that the creditor’s suit to enforce the debt on the junior note is not barred by section 580d.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 29, 2017

Justice Corrigan to participate in Cupertino judicial independence program

The Mercury News is reporting that Justice Carol Corrigan will be a panelist in what’s being billed as an educational forum exploring the meaning of judicial impartiality and independence.  The October 24 program is sponsored by the League of Women Voters of Santa Clara County.  Other panelists are U.S. District Judge Beth Labson Freeman; Santa Clara County Superior Court Judge Rise J. Pichon; and attorney John Steele, an expert on the canons of judicial conduct.

The forum will be held in the Quinlan Community Center, 10185 N. Stelling Road in Cupertino, and will be preceded by a reception.  The event is free and open to the public, but interested attendees should reserve a seat here.

September 28, 2017

“California Supreme Court issues first State Bar antitrust policy”

The Daily Journal today reports [subscription] on the administrative order the Supreme Court issued on Tuesday that states — and requires the State Bar’s adherence to — an antitrust policy and guidelines.  The article says the order “comes in the aftermath of an outside watchdog group and state lawmakers having raised concerns about the effects of the bar’s board featuring far more attorneys than non-attorneys.”

In general, the court does many things other than decide cases.  This is one of them.  The administrative order was issued, as the order itself explains, under the court’s “inherent authority to regulate the practice of law in this state.”  (See also here and here.)

Also in today’s Daily Journal is a column by Professor Robert Fellmeth of the Center for Public Interest Law — “Bar on antitrust:  Close but no cigar.”  He writes that “[t]he new policy has many pluses and one apparently fatal minus.”

September 25, 2017

Summary of September 20, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on September 20, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.  This week we also note that the Court has granted a request to answer a certified question of state law, and also has ordered supplemental briefing in a case in which review was previously granted.

Review Granted

None.

Request to Answer Certified Question of State Law Granted

Frlekin v. Apple, S243805–Request to answer certified question of state law granted–September 20, 2017

In Frlekin v. Apple, Inc., No. 15-17382, the United States Court of Appeals for the Ninth Circuit certified the following question of California law to the California Supreme Court: Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as “hours worked” within the meaning of California Industrial Welfare Commission Wage Order No. 7?  The Supreme Court granted the Ninth Circuit’s request.

Supplemental Briefing Requested

Rand Resources, LLC v. City of Carson, S235735 – Order requesting supplemental briefing – September 20, 2017

In a published decision, Rand Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080, the Court of Appeal, Second District, Division One, reversed the trial court’s order granting the anti-SLAPP motion filed by the city and the mayor. The Court of Appeal held that: (1) the city’s alleged deception about its dealings with a developer’s competitor was not protected speech or petitioning activity; (2) the mayor’s allegedly false statement to the developer, who had an exclusive agency agreement with respect to efforts to bring a professional football franchise to the city, that denied the mayor knew the developer’s competitor was not protected free speech or petitioning activity; and (3) the developer’s alleged attempt to usurp the developer’s rights under the agency agreement did not arise from protected activity under the anti-SLAPP statute.

After granting review, the Supreme Court limited the issues to the following: (1) Did plaintiffs’ causes of action alleging the breach of, and interference with, an exclusive agency agreement to negotiate the designation and development of a National Football League (NFL) stadium and related claims arise out of a public issue or an issue of public interest within the meaning of Code of Civil Procedure section 425.16? (2) Did plaintiffs’ causes of action arise out of communications made in connection with an issue under consideration by a legislative body?

The Court on September 20, 2017 requested that the parties file supplemental briefs addressing the effect, if any, of Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, on the issues presented in this case.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 24, 2017

LA Times supports Liu-inspired juvenile Miranda bill

Statements by Justice Goodwin Liu dissenting from denials of review were a factor in at least two recent legislative actions.  One of those actions — Senate Bill 395, generally requiring that minors under 16 consult with an attorney before a custodial interrogation — was passed nine days ago and was sent to Governor Jerry Brown on Friday.

Also on Friday, the Los Angeles Times editorialized in favor of the bill.  Mentioning Justice Liu’s 2015 dissent in the In re Joseph H. case, the Times says that “the governor should sign SB 395 as consistent with California’s gradual and grudging acknowledgment of an obvious truth — children are not little adults, and criminal laws should be crafted with their different mental capacities in mind.”

Errata:  a recent post about the limited impact that Justice Kathryn Werdegar’s replacement might have on the outcome of Supreme Court cases failed to note that Joseph H. is another one of the few cases in which Justice Werdegar voting with the three current Governor Brown appointees would have made a difference in the result.  In that case (involving a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights), Justices Liu, Mariano-Florentino Cuéllar, and Leondra Kruger all voted for review (Justice Cuéllar signed Justice Liu’s dissent; Justice Kruger did not), but couldn’t garner a fourth vote.  Had Justice Werdegar agreed to hear the case, Senate Bill 395 might not be on the Governor’s desk right now.

September 22, 2017

Justice Werdegar’s replacement might not affect case outcomes much

Since Justice Kathryn Werdegar announced her retirement, some commentators have been predicting a shift at the Supreme Court once Governor Jerry Brown names her replacement, who will be the governor’s fourth pick on the current court.  For the first time in decades, the court will have a majority of justices appointed by a Democratic governor.  One article asked, “Will Jerry Brown Tilt California Supreme Court Against Business?”

However, an examination of recent decisions indicates that the new justice is not likely to have a big impact on the outcome of Supreme Court cases.  To begin with, most court opinions are unanimous.  But even split decisions rarely have had the three Governor Brown appointees — Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger — voting together in dissent with Justice Werdegar on the other side.

In fact, looking back at the 160 opinions issued in cases argued on or after the September 2015 calendar, there appears to be only one in which the outcome would have been different had Justice Werdegar changed her vote to side with the three Brown appointees.  In that case — Department of Finance v. Commission on State Mandates — Justice Werdegar joined a 4-3 majority holding conditions imposed by the state on local agencies that operate storm drain systems are state mandates for which the state must reimburse the agencies.  Justice Werdegar could also have made a difference when the three Brown appointees recorded votes dissenting from the denial of review in a three-strikes resentencing case.

There have been a handful of other 4-3 decisions in which Justice Werdegar was in the majority, but she was joined by at least one Brown appointee in each.  (See here, here, here, and here.)  Similarly, in two high-profile education cases, Justice Werdegar could have been the fourth vote to grant review, but, again, one Brown appointee (Justice Kruger) also voted against hearing the cases.

There was also one death penalty opinion in which only the three Brown appointees felt there was error in the admission of evidence, but they still concurred in affirming the judgment because they found the error to be harmless.  And in another case, the three signed the court’s unanimous opinion upholding the dismissal of a student’s personal injury lawsuit, but were alone in a separate concurring opinion suggesting legislative action.

Of course, any change in the court’s composition can alter the dynamics of the justices’ deliberations, which in turn can determine how a case or petition for review is decided.  But the new justice — whenever he or she is appointed — will probably not cause any dramatic changes.

September 22, 2017

Summary of September 13, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on September 13, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Plantier v. Ramona Municipal Water District, S243360–Review Granted–September 13, 2017

In a published opinion, Plantier v. Raona Municipal Water District (2017) 12 Cal.App.5th 856, the Court of Appeal, Fourth District, Division One, held that the plaintiffs’ class action challenging the water district’s method of calculating wastewater service fees is not barred by their failure to exhaust the administrative remedies set forth under article XIII D of the California Constitution.

This case presents the following issue: Were ratepayers seeking to challenge the water district’s method of calculating wastewater service fees required to exhaust administrative remedies by participating in the public hearing required by California Constitution, Article XIII D, section 6?

City and County of San Francisco v. Regents of the University of California, S242835– Review Granted– September 13, 2017

In a published opinion, City and County of San Francisco v. Regents of the University of California (2017) 11 Cal.App.5th 1107, the Court of Appeal, First District, Division One, held that the California Constitution’s “home-rule provision” did not authorize the city to compel state universities to collect and remit city taxes from users of university parking lots.

This case presents the following issue: Can a charter city require state universities that operate paid parking lots within the city to comply with an ordinance that requires parking lot operators to collect from their customers and remit to the city a tax on the fee charged for a parking space?

Apigee v. Superior Court (Beck), S242890–Review Granted and Held– September 13, 2017

The Court of Appeal, First District, Division Three, summarily denied a petition for writ of mandate from a superior court order involving whether state courts have jurisdiction over federal securities act claims (Case No. A151583).

The Supreme Court granted review, deferring further action pending the decision of the United States Supreme Court in Cyan, Inc. v. Beaver County Employees Retirement Fund, No. 15-1439, cert. granted Jun. 27, 2017, __ U.S. __ [137 S.Ct. 2325, __ L.Ed. ___], which raises the question whether state courts lack subject matter jurisdiction over covered class actions that allege claims only under the Securities Act of 1933.

Hart v. Darwish, S243062– Review Granted and Held– September 13, 2017

In a published opinion, Hart v. Darwish (2017) 12 Cal.App.5th 218, the Court of Appeal, Second District, Division Two, held that (1) the trial court did not violate the hearsay rule in taking judicial notice of a prior court’s denial of a motion and its basis for that ruling, stating that the hearsay rule does not bar judicial notice of a state court’s ruling or its stated basis for that ruling, and (2) the interim adverse judgment rule applies to a prior court’s denial on the merits of a motion for judgment at the close of the prior plaintiff’s evidence.

The Supreme Court granted review, deferring further action pending the finality of its August 10, 2017, decision in  Parrish v. Latham & Watkins, Case No.  S228277, which presents the following issues:  (1) Does the denial of former employees’ motion for summary judgment in an action for misappropriation of trade secrets conclusively establish that their former employer had probable cause to bring the action and thus preclude the employees’ subsequent action for malicious prosecution, even if the trial court in the prior action later found that it had been brought in bad faith? (2) Is the former employees’ malicious prosecution action against the employer’s former attorneys barred by the one-year statute of limitations in Code of Civil Procedure section 304.6?

Review Denied (with dissenting justices)

None.

Depublished

None.

September 21, 2017

Filling the gap in the new publication rules

Last month, we wrote about a gap in the rule changes that ended the automatic depublication of Court of Appeal opinions when the Supreme Court granted review.  The court has now filled the gap, not by amending any rule, but by revising a comment to one of the rules.  The comment revision is announced today on the court’s website.

The gap was a small one, concerning the precedential effect of a published Court of Appeal opinion in a review-granted case when the Supreme Court later dismisses review (as improvidently granted or otherwise) without issuing its own opinion in that case or in a related matter.  It was uncertain whether the opinion retained the persuasive-only effect it had while review was pending or whether the opinion’s pre-review binding and precedential effect was revived.  (Click the first two links above for details about all this.)  The new comment says it’s the latter, unless the court orders otherwise.

The revision adds the bolded sentences to the comment to rule 8.1115(e)(3):

This subdivision specifically provides that the Supreme Court can order that an opinion under review by that court, or after decision on review by that court, have an effect other than the effect otherwise specified under this rule.  For example, the court could order that, while review is pending, specified parts of the published Court of Appeal opinion have binding or precedential effect, rather than only potentially persuasive value.  For purposes of subdivision (e)(2) and (3), a “decision on review” includes any order by the Supreme Court dismissing review.  (See rules 8.528(b) [addressing an “order dismissing review”] & 8.532(b)(2)(B) [listing, among “decisions final on filing,” an order filed under rule 8.528(b)].)  Accordingly, upon dismissal of review, any published Court of Appeal opinion regains binding or precedential effect under rule 8.1115(e)(2) unless the court orders otherwise under that rule’s subdivision (e)(3).

September 20, 2017

Supreme Court will answer wage-and-hour question for Ninth Circuit

The Ninth Circuit has quite a nice streak going.  The Supreme Court today agreed to answer another question of California law for the federal appeals court, which is the 20th affirmative response in the last 21 Ninth Circuit requests.  And even the one denial during that time wasn’t really a denial.  There hasn’t been a flat “no” since March 2012.  The Ninth Circuit’s ability to convince the Supreme Court to hear cases will make any practitioner envious.

The latest “yes” comes in Frlekin v. Apple Inc., where the Ninth Circuit asked for help with this question:  “Is time spent on the employer’s premises waiting for, and undergoing, required exit searches of packages or bags voluntarily brought to work purely for personal convenience by employees compensable as ‘hours worked’ within the meaning of California Industrial Welfare Commission Wage Order No. 7?”  (In granting the request, the Supreme Court says it’s rephrasing the question, which it can do, but, except for a typo, the issue on the court’s docket looks identical to that stated in the Ninth Circuit’s order.)  Justice Ming Chin was recused from voting on the request, and presumably won’t participate in deciding the case on the merits, either.

This was a fast “yes,” too.  It took the Supreme Court only 34 days to grant the Frlekin request.  That’s not unprecedented speed (see here, here, and here), but it normally takes nearly twice as long from docketing to grant.

September 18, 2017

The Supreme Court can dismiss review as improvidently granted, and for other reasons, too

In today’s Daily Journal [subscription], appellate lawyer Myron Moskovitz writes that the Supreme Court should have dumped a case in which it had granted review — McGill v. Citibank, N.A. — instead of deciding an issue that he says wasn’t the reason for agreeing to hear the case.  In his article, “Can you DIG it, California Supreme Court?” (“DIG” standing for “dismissed, improvidently granted”), he says the court rules “seem to allow a DIG.”  (Original emphasis.)  They definitely do.  The reason why requires a little DIGging into rule history.

Until about 15 years ago, former rule 29.4(c) specifically allowed the Supreme Court to dismiss review when review had been “improvidently” granted.  In fact, that seemed to be the only ground for dismissing review.  When the Appellate Rules Project Task Force revised the rules, the Task Force members (I was one) thought the dismissal rule needed changing — most dismissals are for reasons other than the court making a mistake, e.g., because of settlement or other events causing mootness, so why should the court need to sound like it’s confessing error when in fact it did nothing wrong?  Rule 8.528(b)(1) thus now broadly provides, “The Supreme Court may dismiss review.”

Here is the original 2003 Advisory Committee Comment to the revised rule, which was then rule 29.3:

The former rule purported to limit Supreme Court dismissals of review to cases in which the court had “improvidently” granted review. In practice, however, the court may dismiss review for a variety of other reasons. For example, after the court decides a “lead” case, its current practice is to dismiss review in any pending companion case (i.e., a “grant and hold” matter under revised rule 28.2(c)) that appears correctly decided in light of the lead case and presents no additional issue requiring resolution by the Supreme Court or the Court of Appeal. The Supreme Court may also dismiss review when a supervening event renders the case moot for any reason, e.g., when the parties reach a settlement, when a party seeking personal relief dies, or when the court orders review to construe a statute that is then repealed before the court can act. Reflecting this practice, the Supreme Court now dismisses review–even in the rare case in which the grant of review was arguably “improvident”–by an order that says simply, “Pursuant to rule 29.4(c) [now 29.3(b)], California Rules of Court, the above-entitled review is DISMISSED . . . ” Revised subdivision (b) follows this practice by deleting as misleading the former reference to “improvident” grants of review. It is not a substantive change.

By the way, the Supreme Court does still occasionally dismiss review as improvidently granted.  It did so just three months ago.

September 17, 2017

Justice Liu separate statements influence legislative session

Justice Goodwin Liu has revived the practice of occasionally writing separate statements when the Supreme Court denies petitions for review.  Two of those statements influenced bills that the Legislature passed on Friday at the end of its 2017 session.

Senate Bill 395 would require that minors under 16 consult with an attorney before a custodial interrogation.  A similar bill passed last year that was inspired, at least in part, by Justice Liu’s dissenting statement (concurred in by Justice Mariano-Florentino Cuéllar) from the 2015 denial of review in In re Joseph H., the high-profile case of a 10-year-old who shot and killed his neo-Nazi father and who was found by the Court of Appeal to have knowingly waived his Miranda rights.  Governor Jerry Brown vetoed that bill, but promised to “work with proponents, law enforcement and other interested parties to fashion reforms that protect public safety and constitutional rights.”  Maybe the Governor will approve of this year’s bill.

The Legislature also passed Senate Concurrent Resolution 48, which “recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.”  One of the resolution’s 28 “whereases” quotes a portion of Justice Liu’s 2016 dissent from the denial of review in People v. Cruz-Santos.  The dissent criticized an unpublished Court of Appeal opinion concerning the natural and probable consequences doctrine as used to determine accomplice liability.

Justice Liu’s most recent separate statement (three weeks ago) and a July concurring opinion suggested legislative action in different areas of juvenile dependency law.  Because Justice Liu appears to have the Legislature’s ear (as the Chief Justice does on the issue of federal immigration agents in California’s courthouses), it wouldn’t be surprising to see action in the next session on these recommendations.

September 14, 2017

Ninth Circuit panel declines to overturn California Supreme Court death penalty affirmance

In Cain v. Chappell, the Ninth Circuit yesterday affirmed a district court’s denial of habeas corpus relief to a death row inmate.  Twenty-two years ago, the California Supreme Court affirmed the inmate’s death sentence on direct automatic appeal.  (People v. Cain (1995) 10 Cal.4th 1.)  Justice Kathryn Werdegar authored the court’s opinion for herself and five other justices; Justice Stanley Mosk wrote a concurring opinion.

Last month, the Ninth Circuit similarly supported a Supreme Court death penalty affirmance, only that time it did so by reversing a district court’s grant of a habeas petition.

Additional fact:  the district court judge who denied the habeas corpus petition four years ago was Audrey Collins, who is now a California Court of Appeal Justice on Division Four of the Second District.

September 13, 2017

“Calif. High Court Should Hear Antitrust Query, AG Says”

Law360 [subscription] reports on California Attorney General Xavier Becerra’s request that the Third Circuit Court of Appeals seek guidance from the California Supreme Court under rule 8.548 on a matter of state antitrust law.  [H/T Ben Shatz.]  According to the article, Becerra says the Supreme Court should “weigh in on whether the state’s antitrust law is broader than its federal counterpart, arguing the appeals court had underestimated the law’s scope in approving a $233 million GlaxoSmithKline pay-for-delay settlement.”  Becerra is apparently relying on the Supreme Court’s 2015 decision in In re Cipro Cases I & II.

The Third Circuit case is In re Wellbutrin XL Antitrust Litigation.  The opinion is here.

If the Third Circuit does ask for the Supreme Court’s help, the Supreme Court will probably oblige.  To ask, the federal appeals court would likely need to withdraw its opinion or have an en banc court make the request.  There is Ninth Circuit precedent for both.  (See here and here.)

September 12, 2017

Register now for the nationwide appellate summit in Long Beach

As we mentioned in a previous post, California appellate lawyers are extremely fortunate that the nation’s premier appellate CLE seminar is coming to the Westin Hotel in Long Beach in less than two months. The annual Appellate Judges Education Institute (AJEI) Summit will last four days, from November 2 through 5, and will include superb CLE programs on all aspects of appellate practice. It will be attended by hundreds of appellate judges, lawyers, and staff attorneys from around the country. In addition to the top-flight CLE programs, the Summit will include an evening cocktail reception at the Aquarium of the Pacific, a gala dinner, off-site activities, dine-arounds, cocktail receptions and other opportunities to network and make new friends.

However, time is running out for early bird registration.  So register now!

September 12, 2017

Rehearing petition filed in taxing-by-initiative case; Supreme Court extension order soon to follow

Two of the Supreme Court’s highest profile opinions of late were Briggs v. Brown and California Cannabis Coalition v. City of UplandBriggs upheld most of Proposition 66, the speed-up-executions initiative, but rendered ineffective certain time limits the ballot measure sought to place on the courts.  California Cannabis likely made it easier to raise local taxes by initiative.

A rehearing petition was filed in Briggs last Friday.  Today, a rehearing petition was filed in California Cannabis.  The Supreme Court yesterday extended by 60 days its time to rule on the Briggs rehearing petition.  The court will likely do the same with the California Cannabis petition either today or tomorrow.  Such extension orders are routine and have nothing to do with a petition’s merits.

Also routine is the denial of almost all rehearing petitions, which is the probable fate of the two most recent requests, despite at least one editorial calling for the court to “revisit” the California Cannabis case.  The Briggs and California Cannabis petitions could nonetheless lead to modifications of the court’s opinions.  A modification would not change an opinion’s bottom line, but it could address points made in a petition or make more clear what issues the opinion is not deciding.

September 11, 2017

Supreme Court extends its time to rule on Prop. 66 rehearing petition. No big deal.

Following the Supreme Court’s decision last month in Briggs v. Brown upholding most of Proposition 66, the ballot measure designed to speed up executions in California, the initiative’s challengers filed a rehearing petition on Friday.  Today, the court extended until November 22 its time to rule on the petition.  (The relevant rules are here and here.)

Don’t read anything special into the extension order.  The court routinely extends its time to rule on rehearing requests, and it almost always denies those requests.  Occasionally, a denial will include a modification of the opinion that doesn’t change the court’s judgment.

September 9, 2017

Expressing worries similar to the Chief Justice’s, new state bill would restrict immigration agents’ access to California courts

Responding to concerns frequently expressed by Chief Justice Tani Cantil-Sakauye (see recently here and here), legislation introduced yesterday in the state Senate would make it illegal in many situations for federal immigration agents to enter California courthouses and other state-owned buildings.  (Technically, the legislation — Senate Bill 183 — was not “introduced” yesterday; it’s a gut-and-amend bill.)

The Legislative Counsel’s digest summarizes the bill, saying it “would prohibit federal immigration enforcement agents, officers, or personnel from entering a building owned and occupied, or leased and occupied, by the state, a public school, or a campus of the California Community Colleges, to perform surveillance, effectuate an arrest, or question an individual therein, without a valid federal warrant.”

Echoing the Chief Justice’s statements (e.g., here), SB 183 includes a declaration that “[t]he presence of federal immigration enforcement agents or personnel in various state buildings or facilities in which immigrant community members appear to report violations of state laws or regulations will serve to discourage them from reporting those violations, against the public interest of all Californians.”

September 8, 2017

No conference held the week of September 4, 2017

The Court held no conference this week.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

September 7, 2017

Eight more pro tems for the Supreme Court’s October calendar [Updated]

The Supreme Court today announced its October calendar.  Like its just-concluded September calendar, there will be eight Court of Appeal justices sitting pro tem.  (We’re now into the M’s in the alphabetical assignment of pro tems.)  This is the second consecutive calendar with an unfilled seat on the court.

On October 2 and 3, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

T.H. v. Novartis Pharmaceuticals Corp.:  May the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug be held liable for injuries caused years later by another manufacturer’s generic version of that drug?  The court granted review 15 months ago.  (Third District Court of Appeal Justice Louis Mauro is the pro tem.)

Kurwa v. Kislinger:  Can plaintiff take an appeal in the current posture of this litigation?  The court granted review 13 months ago.  This is the second time this case has been before the court, both times regarding appealability.  (Fourth District, Division One, Court of Appeal Presiding Justice Judith McConnell is the the pro tem.)

Jackson v. Superior Court:  After an incompetent defendant has reached the maximum three-year commitment provided for by law, can the prosecution initiate a new competency proceeding by obtaining dismissal of the original complaint and proceeding on a new charging document?  The court granted review a year ago.  (First District, Division Three, Court of Appeal Presiding Justice William McGuiness is the pro tem.)

People v. Gallardo:  Was the trial court’s decision that defendant’s prior conviction constituted a strike incompatible with Descamps v. U.S. (2013) 570 U.S. __ (133 S.Ct. 2276) because the trial court relied on judicial fact-finding beyond the elements of the actual prior conviction?  The court granted review 19 months ago.  (Second District, Division Two, Court of Appeal Justice Brian Hoffstadt is the pro tem.)

People v. Contreras:  This is an un-hold case.  When it un-held the case, the court directed the parties to brief this issue:  Is a total sentence of 50 years to life or 58 years to life the functional equivalent of life without the possibility of parole for juvenile offenders?  The court originally granted review (and held the case) over two and a half years ago.  (Second District, Division Five, Court of Appeal Justice Sandy Kriegler is the pro tem.)

People v. Rices:  This is an automatic direct appeal from an August 2009 judgment of death.  The court’s website does not list issues for such appeals.  (The pro tem justice has not yet been assigned for this case.)

People v. Frierson:  What is the standard of proof for a finding of ineligibility for resentencing under Proposition 36?  (See People v. Arevalo (2016) 244 Cal.App.4th 836; cf. People v. Osuna (2014) 225 Cal.App.4th 1020)?  The court granted review 11 months ago.  (The pro tem justice has not yet been assigned for this case.)

People v. Hicks:  Did the trial court err when it refused to inform the jury at the retrial of a murder charge that defendant had been convicted of gross vehicular manslaughter in the first trial?  (Compare People v. Batchelor (2014) 229 Cal.App.4th 1102.)  The court granted review 18 months ago.  (Fourth District, Division Three, Court of Appeal Justice Eileen Moore is the pro tem.)

[September 13 update:  the to-be-named pro tems have been named.  In Rices, Fourth District, Division One, Justice Gilbert Nares is the pro tem.  In Frierson, Fourth District, Division Two, Justice Douglas Miller is the pro tem.]

September 5, 2017

“Werdegar gone, 6 high court justices sit today”

As the Supreme Court today begins hearing its September calendar with eight Court of Appeal justices sitting to temporarily fill the vacancy created by Justice Kathryn Werdegar’s retirement (live video here), the Daily Journal [subscription] reports about the process to find a permanent replacement.  The article says that “two names have emerged” in the speculation about whom Governor Jerry Brown will appoint — Presiding Justice Jim Humes (of the First District, Division One, Court of Appeal) — who is one of the pro tem justices today — and Justice Lamar Baker (Second District, Division Five).  The Daily Journal also mentions Justice Jeffrey Johnson (Second District, Division One) — who is also sitting on the court pro tem today — as a possible pick.

The question about an appointment, however, is not only who but when.  The article quotes a deputy press secretary in the Governor’s office as saying “there is no set timetable.”  However, the more pro tem justices the Supreme Court must use — and the court will soon be announcing its October calendar, likely with more pro tems — the greater the odds that an institutional problem will arise.  It can be damaging if the court decides a case by a 4-3 vote with a pro tem in the majority.  When that happens, there will be the suspicion that the case’s outcome was determined by which Court of Appeal justice was randomly chosen to sit on the Supreme Court for that one case.

Although her retirement was not effective until last week, Justice Werdegar announced it six months ago and the Governor likely could have had a new justice appointed and confirmed in time to be sitting on the court today, allowing the court to operate without the need for any pro tem justices.

September 4, 2017

Happy Labor Day, Chief

Today, it’s worth remembering that California’s Chief Justice has two more-than-full-time jobs.

September 4, 2017

“A win for majority rule on local finances”

There’s been a lot of press about the Supreme Court’s 5-2 decision last week in California Cannabis Coalition v. City of Upland, holding that Proposition 218, a voter initiative that amended the state constitution to restrict the taxing power of “local governments,” does not limit the ability of voters themselves to impose taxes by initiative.  The media attention includes an editorial in yesterday’s Los Angeles Times, praising the ruling as having “struck a welcome blow to the unreasonably high vote thresholds in Proposition 218.”

The editorial refers to the Proposition 218 requirement that two-thirds of voters must approve the imposition, extension, or increase of many local taxes.  (See, e.g., here.)  (The Times calls it “the tyranny of the minority.”)  However, that’s not what the Supreme Court’s opinion was specifically about (California Cannabis concerned a different Proposition 218 provision, one regarding the timing of elections on taxes), and although many believe that the opinion does what the editorial assumes, others are not as sure.  The San Diego Union-Tribune, for example, editorialized that, because of the court’s ruling, “voter-qualified ballot initiatives only need majority approval — maybe.”  Nonetheless, as CALmatters reports, some state legislators are already set to introduce a constitutional amendment that would overturn the decision.

The Union-Tribune rails against the uncertainty about the status of the two-thirds vote requirement for local taxes by initiative:  “California Chief Justice Tani Cantil-Sakauye needs to grasp that this is intolerable — and that while it may be unusual, the state’s high court needs to revisit the Upland case and specifically address the voting threshold question.”  Supreme Court rehearings are extremely rare, even with a court in transition.  It would be even more rare for the court to grant rehearing to resolve an issue — the reach of the two-thirds vote requirement — that wasn’t before the court in the first place.  (And, of course, contrary to the Union-Tribune’s entreaty, it takes more than the Chief Justice’s vote to rehear the case.)  Resolution of the issue will most likely have to wait for another case, or for the Legislature and the voters, or just the voters, to amend the constitution to reverse California Cannabis.

September 1, 2017

Summary of August 30, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on August 30, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

City of Oroville v. Superior Court (California Joint Powers Risk Management Authority), S243247 – Review and Stay Granted – August 30, 2017

In an unpublished opinion, City of Orville v. Superior Court (June 13, 2017, C077181) 2017 WL 2554447, the Third District Court of Appeal affirmed the trial court’s holding that a municipality was liable for inverse condemnation. The court denied the city’s petition for writ of mandate and vacated the stay of the trial court proceedings on damages.

This case presents the following issue: Is a city liable for inverse condemnation when a blockage in a city sewer main and the absence of a legally required backwater valve on private property caused sewage to back up onto that property?

Review Denied (with dissenting justices)

None.

Depublished

Bartoni v. American Medical Response West, S243277– Depublished Court of Appeal Opinion – August 30, 2017

Plaintiffs, current and former employees of an ambulance service company, sued their employer alleging that its meal and rest period policies violate California law. The case raised two issues: (1) Is an order denying class certification appealable under the “death knell” doctrine, where plaintiffs’ Private Attorney General Act (PAGA) claims remain pending?; and (2) Did the trial court err in denying class certification?  In a published opinion, Bartoni v. American Medical Response West (2017) 11 Cal.App.5th 1084, the Court of Appeal, First District, Division Two, held the trial court’s denial of class certification rested in part on an incorrect legal assumption about the nature of rest periods, and therefore remanded for further consideration.  The Supreme Court ordered the opinion depublished.

September 1, 2017

Mandatory Supreme Court e-filing starts today

As the Supreme Court announced in June, mandatory e-filing begins today for most documents filed before the court grants or denies a petition for review.  And today the court publishes six pages of e-filing rules.  There are some exceptions — e.g., e-filing is voluntary for self-represented litigants and for amicus letters supporting petitions for review — but rule 3(b) provides that e-filing applies to pending cases.

August 31, 2017

Five opinions in death penalty reversal; court barely reaches a judgment at all and provides a rehearing opportunity

No wonder it took until the last filing day within the 90-day period to decide the capital appeal in People v. Daniels.  There are five different opinions in the case today, leading to a reversal of only the death sentence, due to an invalid waiver of the defendant’s right to a jury trial.  Everything else is affirmed.  But the court came close to not having a majority agreeing to any disposition at all.  A brief per curiam opinion serves as a scorecard for the appeal, recounting where the seven justices stand in the four separate opinions that follow.

The defendant was convicted in a court trial, without a lawyer, of a laundry list of major crimes.  There were also two special circumstance findings, which were the basis for the death penalty.

Justice Mariano-Florentino Cuéllar writes what is designated as the lead opinion, which Justices Kathryn Werdegar and Goodwin Liu sign.  These three justices believe everything should be reversed — the convictions, the special circumstance findings, and the death penalty — because, they conclude, the defendant’s jury trial waivers were not “knowing and intelligent.”  “[T]he court accepted Daniels’s waiver without ever inquiring as to Daniels’s understanding of any substantive aspect of what a jury is,” the lead opinion says.  Thus, although Daniels clearly waived his right to a jury trial, the three justices say they “decline to conflate a knowing, intelligent waiver with an emphatic one.”  Also, however, the opinion rejects several additional defense arguments — stemming from his waiver of the right to counsel — and all the other justices agree on these points.

Justice Liu issues a concurring opinion, signed by Justice Cuéllar.  Noting in detail that “the state of our citizenry’s actual knowledge of basic civics leaves much to be desired,” this opinion stresses the need for explaining the details of a jury trial to a defendant who wants to waive one, especially in a capital case.

Justice Carol Corrigan, joined by Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, writes a dissent on the jury waiver issue, stating that the entire death penalty judgment should be affirmed.  These three justices agree the trial judge needs to adequately educate a defendant before the defendant waives a jury trial, but conclude that “[t]here is no requirement that a colloquy be complicated in order to be constitutional” and that “a review of the entire record casts no doubt on Daniels’s understanding.”

Justice Kruger, alone, has a separate opinion both concurring in and dissenting from the lead opinion’s discussion of jury waiver.  She concurs with Justice Cuéllar’s opinion on the invalidity of the jury trial waiver as to the penalty phase, but also concurs with Justice Corrigan’s opinion about the adequacy of the waiver as to the guilt phase.

The court was certainly splintered on this case, but it could have been worse.  Justice Kruger says that she would have preferred “to order further proceedings to allow the parties to make a more robust record concerning the intelligence of defendant David Scott Daniels’s jury waiver.”  If she had stuck to that position, however, there would have been no judgment of the court.  So, to avoid that dilemma, she agrees to the disposition that “resolves the case in the manner that most closely reflects my own views on what the record before us establishes about the intelligence of defendant’s jury trial waiver.”

All these opinions raise a question.  If Justices Werdegar, Liu, and Cuéllar believe the guilt and special circumstance findings (along with the death penalty) should be reversed, why didn’t they agree to Justice Kruger’s preferred disposition — a remand for further proceedings — that ultimately could have led to a full reversal, instead of unsuccessfully insisting on a full reversal now and allowing the guilt and special circumstance findings to be affirmed?  The answer might be that a remand could also ultimately have led to the entire death penalty judgment being affirmed.

To further complicate matters, today is Justice Werdegar’s last day on the court.  If her replacement is appointed and confirmed before the time expires to order a rehearing — likely, 90 days from today (see also here) — the new justice, not Justice Werdegar, would vote on any rehearing petition.  The new justice could conceivably lead to the death penalty judgment being affirmed in its entirety (if he or she agrees with Justice Corrigan’s opinion) or, alternatively, cause the remand that Justice Kruger wants (if he or she believes that’s the proper disposition and Justices Liu and Cuéllar have second thoughts about how to resolve the case).

A jury trial waiver issue divided the court just two months ago when the court affirmed the death penalty in another case, People v. Sivongxxay.  That division was nothing like today’s, however.

August 31, 2017

Automated license plate reader data mostly protected from disclosure

In American Civil Liberties Union Foundation of Southern California v. Superior Court, the Supreme Court today holds that raw data from law enforcement use of automated license plate readers does not need to be disclosed under the California Public Records Act, but it holds open the possibility that anonymized or redacted data might be required.  The readers — mounted on fixed structures and patrol cars — scan and analyze license plates of cars on the road to identify vehicles linked to crimes under investigation.  The court’s unanimous opinion by Justice Ming Chin concludes that revealing unaltered plate scan data — the Los Angeles Police and Sheriff’s Departments “read” over one million plates a week —  would “jeopardize the privacy of everyone associated with a scanned plate.”  However, the court remands the case for further analysis of whether anonymized or redacted data could be disclosed without compromising law enforcement investigation.

The court affirms in part and reverses in part the Second District, Division Three, Court of Appeal.  The Court of Appeal had exempted from disclosure both raw and anonymized or redacted data.

August 30, 2017

License plate reader, death penalty opinions filing tomorrow; last for Justice Werdegar and likely to be the last ones for a while

Tomorrow morning, the Supreme Court will file its opinions in American Civil Liberties Union Foundation of Southern California v. Superior Court and People v. Daniels, the last two undecided cases from the June calendar.  (Briefs here; oral argument videos here.)

In fact, they’re the last two argued cases still awaiting opinions, period.  And with no more arguments until next week, it could be a month or more before we see another opinion filed.  Last year, there was a seven-week gap in opinion filings.

The ACLU and Daniels opinions will also be the last in which Justice Kathryn Werdegar participates.  Tomorrow is her last day on the court.

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

Daniels is an automatic direct appeal from a February 2001 judgment of death.

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

August 28, 2017

Divided Supreme Court tightens time limit for childhood sexual abuse actions against public entities

In Rubenstein v. Doe No. 1, a 4-3 Supreme Court today finds untimely a 34-year-old woman’s claim that she was sexually molested by her high school cross-country and track coach almost 20 years earlier.  Interpreting statutes of limitations in the Code of Civil Procedure and the Tort Claims Act in the Government Code, the majority opinion by Justice Ming Chin notes that the plaintiff could have timely sued if the defendant hadn’t been a public entity or if the sexual abuse had occurred after 2008.  The opinion says that legislative changes, including the overruling of a 2007 Supreme Court decision, were “measured actions that protected public entities from potential liability for stale claims regarding conduct allegedly occurring before January 1, 2009, in which the public entity had no ability to do any fiscal planning, or opportunity to investigate the matter and take remedial action.”

Justice Kathryn Werdegar, joined by Justices Goodwin Liu and Mariano-Florentino Cuéllar, dissents.  She says that “the majority offers public entities the practical equivalent of immunity in the very set of cases that prompted the Legislature to amend [the general statute of limitations for childhood sexual abuse actions] — cases in which the psychological harm caused by childhood sexual abuse is first discovered in adulthood,” a result that “cannot fairly be attributed to the Legislature, which amended [the statute of limitations] over the strong objection of public school districts.”

The court reverses the Fourth District, Division One, Court of Appeal.  It agrees with a 2006 Second District, Division Two, opinion, which it quotes at length.  The court also disapproves a 2009 decision by the Second District, Division Three.

August 28, 2017

Supreme Court hits a Homer in loosening restrictions on taxing by initiative

Employing a Homeric reference, the Supreme Court today holds in California Cannabis Coalition v. City of Upland that a state constitutional provision, which was added by initiative to limit the taxing power of “local governments,” does not affect the ability of voters themselves to impose taxes by initiative.  In the

Ulysses and the Sirens

court’s 5-2 opinion, Justice Mariano-Florentino Cuéllar writes, “Only by approving a measure that is unambiguous in its purpose to restrict the electorate’s own initiative power can the voters limit such power, tying themselves to the proverbial mast as Ulysses did.”  (See here.)  (In another flourish, the opinion calls the early 20th Century advent of the initiative power “a political earthquake.”)

The tax in question was a $75,000 annual licensing and inspection fee included in a City of Upland initiative to allow medical marijuana dispensaries.  The initiative was soundly defeated last November, but the Supreme Court exercises its discretion to decide the “technically moot” case.  The constitutional provision (added by Proposition 218) that the court today finds inapplicable, among other things, dictates the timing of elections to approve taxes imposed by “local governments.”

Justice Leondra Kruger, joined by Justice Goodwin Liu, writes a concurring and dissenting opinion.  The majority, which spends considerable time responding to Justice Kruger’s opinion, concludes that “the common understanding of local government does not readily lend itself to include the electorate, instead generally referring to a locality’s governing body, public officials, and bureaucracy.”  Justice Kruger, on the other hand, believes that “[a] tax passed by voter initiative, no less than a tax passed by vote of the city council, is a tax of the local government, to be collected by the local government, to raise revenue for the local government.”  Alluding to the majority’s literary reference, Justice Kruger writes, “And so in the name of cutting the voters loose from their self-imposed restraints, the majority thwarts the evident intent of the voters who passed Proposition 218 for the sake of governing all local taxes, not just some.”

The court affirms the Fourth District, Division Two, Court of Appeal.

August 26, 2017

“When the 9th Circuit turns to the California Supreme Court”

In an article subtitled, “Recent case suggests that the 9th Circuit might be applying a less stringent standard for when it feels obliged to certify a question about California law to the state high court,” Horvitz & Levy partners Peder Batalden and Felix Shafir write in Friday’s Daily Journal [subscription] about the Ninth Circuit’s request in Troester v. Starbucks Corp. that the Supreme Court answer a question of state employment law.

We wrote about that “unusual” request when the Supreme Court agreed to answer the question.  Peder and Felix’s article gives the topic a much more detailed treatment.

August 26, 2017

Life on the Supreme Court’s criminal central staff

In a video, Judicial Staff Attorney Mark Wilson describes working on the Supreme Court’s criminal central staff.  (Related:  here and here.)

August 25, 2017

Summary of August 23, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on August 23, 2017. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Heimlich v. Shivji, S243029– Review Granted– August 23, 2017

The Sixth District Court of Appeal held in a published opinion, Heimlich v. Shivji (2017) 12 Cal.App.5th 152, that a party timely presented his section 998 claim to the arbitrator, the arbitrator should have reached the merits of that claim, and the arbitrator’s refusal to hear evidence of the section 998 offer warranted partially vacating the arbitration award. The court reversed the order confirming the arbitration award.

The question presented is: When a party to an arbitration proceeding makes an offer of compromise pursuant to Code of Civil Procedure section 998 and obtains a result in the arbitration more favorable to it than that offer, how, when, and from whom does that party request costs as provided under section 998?

City of Morgan Hill v. Bushey (River Park Hospitality), S243042– Review Granted –August 23, 2017

In a published opinion, City of Morgan Hill v. Bushey (2017) 12 Cal.App.5th 34, the Sixth District Court of Appeal held that a referendum petition challenging an ordinance that attempts to make the zoning for a parcel consistent with the parcel’s general plan land use designation is not invalid if the legislative body remains free to select another consistent zoning for the parcel should the referendum result in the rejection of the legislative body’s first choice of consistent zoning.

The question presented is: Can the electorate use the referendum process to challenge a municipality’s zoning destination for an area, which was changed to conform to the municipality’s amended general plan, when the result of the referendum—if successful—would leave intact an existing zoning designation that does not conform to the amended general plan?

Gillotti v. Stewart, S242568–Review granted and held –August 23, 2017

In a published opinion, Gillotti v. Stewart (2017) 11 Cal.App.5th 875, the Third District Court of Appeal affirmed the trial court’s entry of judgment on special jury verdict finding the general contractor negligent and liable for certain violations of the Right to Repair Act and finding the grading subcontractor not negligent and the trial court’s judgment finding the builder liable after failing to appear for trial. The Court of Appeal held that: (1) the Right to Repair Act bars common law claims for damages caused by construction defects within the scope of the Act, subject to specific exclusions within the Act, such as fraud and personal injury; (2) the Act covered the subcontractor’s alleged damage to trees during driveway construction, thus a common law claim to recover for the tree damage was precluded; (3) the homeowner failed to establish prejudice from the trial court’s error in instructing on a special verdict form that the Act only covered damages “to the structure”; (4) evidence supported finding that the subcontractor was not negligent with respect to the home’s violations of the Act’s drainage standards; (5) the subcontractor’s offer to compromise, though inconsistently described, was sufficiently capable of valuation, thus the homeowner’s failure to respond supported an award of expert witness fees; and (6) the homeowner’s husband’s pecuniary interest in the house precluded recovery of attorney fees for his legal work on the case.

Further action in this matter is deferred pending disposition of a related issue in McMillian Albany LLC v. Superior Court, S229762, which presents the following question:  Whether the Right to Repair Act (Civ. Code, § 895 et seq.) precludes a homeowner from bringing common law causes of action for defective conditions that resulted in physical damage to the home?

Order Limiting Issues After Review Previously Granted

Quigley v. Garden Valley Fire Protection District, S242250– Order limiting issues after review previously granted –August 23, 2017

In a published decision, Quigley v. Garden Valley Fire Protection District (2017) 10 Cal.App.5th 1135, the Third District Court of Appeal affirmed the trial court’s judgment granting nonsuit in favor of two fire protection districts. The Court of Appeal held that: (1) governmental immunity is jurisdictional and can be raised at any time and thus is not subject to the rule that failure to raise a defense by demurrer or answer waives that defense; (2) the firefighter’s injuries were covered by California Government Code section 850.4’s firefighting immunity, which provides immunity regardless of whether the nature of the condition of the firefighting equipment or facilities affects the ability to fight fires.

After granting review, the California Supreme Court limited the issue to the following: (1)  Whether, as the Court of Appeal held, the governmental immunity set forth in Government Code section 850.4 may be raised for the first time at trial.

Request to Answer Certified Question of State Law Granted

Meza v. Portfolio Recovery Associates, S242799– Request to answer a question of state law granted– August 23, 2017

The United States Court of Appeals for the Ninth Circuit certified the following question of state law to the California Supreme Court:  “Under § 98(a) of the California Code of Civil Procedure, must the affiant be physically located and personally available for service of process at the address provided in the declaration that is within 150 miles of the place of trial?”

Review Denied (with dissenting justices)

Ogunsalu v. Superior Court (California Commission on Teacher Credentialing), S242539– Denied Review [Kruger, J. voting to grant petition]– August 23, 2017

In a published decision, Ogunsalu v. Superior Court (2017) 12 Cal.App.5th 107, The Court of Appeal, Fourth District, Division One, dismissed a petition for writ of mandate challenging the denial of a teacher’s request for a continuance of the hearing on his challenge to the Commission on Teacher Credentialing’s recommendation to suspend his preliminary teaching credentials. The Court of Appeal held: (1) the self-represented teacher’s vexatious litigant pre-filing order applied to his superior court challenge to the administrative law judge’s denial of his request to continue an administrative proceeding where the teacher was the respondent; and (2) the teacher’s petition for writ of mandate was moot because the administrative hearing had been concluded.

Depublished

None.

August 25, 2017

Tax elections, childhood sexual abuse statute of limitations opinions filing Monday

On Monday morning, the Supreme Court will file opinions in California Cannabis Coalition v. City of Upland and Rubenstein v. Doe No. 1.  (Briefs here; oral argument video here.)  These are the last two opinions for cases argued on the late-May calendar.

California Cannabis Coalition raises the issue whether a proposed initiative measure that would impose a tax is subject to the requirement of California Constitution, article XIII C, section 2 that taxes “imposed by local government” be placed on the ballot at a general election.

In Rubenstein, the court will address these questions:  (1) Does the delayed discovery rule in Code of Civil Procedure section 340.1 apply to the accrual of a cause of action against a public entity for purposes of determining the time within which a claim under the Government Claims Act must be made?  (2) Does Government Code section 905, subdivision (m), apply to childhood sexual abuse causes of action based on conduct occurring before January 1, 2009?

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

August 24, 2017

Highlighting separate statements

Yesterday we wrote about Supreme Court justices’ separate statements when review is denied of unpublished Court of Appeal opinions and said that the statements should appear in the Supreme Court’s official reports.  Otherwise, we said, the statements would be available only on the Supreme Court’s online docket, appended to the opinion linked to on the Court of Appeal docket, “and also maybe in a computer research database.”

Well, it turns out the Supreme Court and the Reporter of Decisions are taking steps to insure that appearing in computer research databases is more than just a “maybe.”

The Reporter of Decisions, Lawrence Striley, explained to At The Lectern how his office signifies that a Court of Appeal opinion has been re-posted with a Supreme Court justice’s separate statement appended:  “We post it with the original posting date but add an ‘s’ to the docket number. The scheme we use for posting both published and nonpublished opinions and to which the various publishers have become accustomed is that the additional letters after the docket number mean that something ‘special’ has happened. For example, if a previously posted opinion has been modified we add an ‘m’ to the docket number. For a second modification, we add an ‘n.’ Here, the ‘s’ following the docket number, especially when combined with the original posting date, indicates to all publishers that a Supreme Court statement has been appended.”

Thus, yesterday’s re-posting of the Court of Appeal opinion with Justice Liu’s separate statement shows up on the unpublished opinions web page like this:

Aug 23, 2017 G054816S
[PDF] [DOC]
J.C. v. Superior Court CA4/3 filed 6/28/17

The “S” and the June filing date make the opinion stand out on the page.

August 24, 2017

“Will Jerry Brown Tilt California Supreme Court Against Business?”

Daniel Fisher comments in Forbes.  Although acknowledging that “[t]he high court’s decisions have mostly been unanimous in recent years,” he says that Governor Jerry Brown’s appointment to replace retiring Justice Kathryn Werdegar “could be bad news for business, as California has long been a laboratory for costly legal innovations including strict liability and so-called ‘bystander injury’ damages for people who observe a family member getting hurt.”

August 24, 2017

Supreme Court upholds most of Prop. 66, but it refuses to be bound by the part that would have wreaked havoc on the court’s functions

Giving its traditional deference to initiative measures approved by the voters, the Supreme Court today in Briggs v. Brown upholds most of Proposition 66, which is designed to speed up executions in California.  But the court ruled that the courts themselves can’t be forced to rush its death penalty reviews, concluding that provisions “that appear to impose strict deadlines on the resolution of judicial proceedings must be deemed directive rather than mandatory.”  The court states that the part of Proposition 66 providing “that the courts ‘shall complete the state appeal and the initial state habeas corpus review in capital cases’ within five years is properly construed as an exhortation to the parties and the courts to handle cases as expeditiously as is consistent with the fair and principled administration of justice.”

Complying with the Proposition 66 deadlines would have turned the Supreme Court into virtually a death-penalty-only court.  The court seems to acknowledge this fact.  It says nothing in the initiative “suggests that short shrift should be given to the decisionmaking process, or that capital posttrial review proceedings should dominate dockets to the point that other cases would be left to languish.”  And it also cautions that it cannot permit “the material impairment of judicial functions by any statute.”

The court is only partially divided today.  It is unanimous in rejecting the one argument that would have invalidated the entire initiative — that Proposition 66 violates the single-subject rule of the state constitution.  (Cal. Const., art. II, section 8, subd. (d) [“An initiative measure embracing more than one subject may not be submitted to the electors or have any effect”].)  The disagreements concern two specific provisions in the law.

The majority opinion is written by Acting Chief Justice Carol Corrigan and concurred in by Justices Kathryn Werdegar, Goodwin Liu, Leondra Kruger, and pro tem Justice Andrea Hoch.  Justice Mariano-Florentino Cuéllar writes a concurring and dissenting opinion, joined by pro tem Justice Raymond Ikola.  (The assignment of a temporary Chief and two pro tem justices was necessitated by the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.)  Also, Justice Liu writes a separate concurring opinion, which is signed by Justices Werdegar, Kruger, and Hoch.  (A majority of justices signing a concurring opinion has happened before.)

Justice Cuéllar’s primary problem with the majority concerns its treatment of the five-year deadline on the courts.  He doesn’t disagree that a statute cannot impose such a deadline.  To the contrary, he wants to strike down that provision as unconstitutional, instead of construing it to be directory as the majority does.  He writes, “When we twist the words of an initiative and ignore its clear purpose under the guise of ‘saving’ it from being declared unconstitutional, then we are merely offering a pacifier as a substitute for a law the voters enacted, and encouraging initiative proponents to deceive voters about the actual effectiveness of a proposed law.”

Justice Cuéllar also parts company with his colleagues who allow to stand the part of Proposition 66 that authorizes an appeal to the Court of Appeal from a superior court ruling on an initial capital habeas corpus petition.  After oral argument, the Supreme Court asked for supplemental briefing on this issue, asking whether the initiative provision “conflicts with the grant of appellate jurisdiction to this court ‘when judgment of death has been pronounced.'”