April 17, 2015

Oral argument continuances . . . continued

Another oral argument calendar announced, another request for a continuance.  Two requests, actually.  And, although post-argument-scheduling continuance requests have been received favorably of late (see here and here), only one of the two requests was granted this time.

Argument in J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company will be moved from the early-May calendar to the late-May or the June calendar.  [Disclosure:  Horvitz & Levy represents the petitioner on review, but it was the other side that asked for the continuance.]

But argument will proceed as scheduled in People v. Grewal, despite an attorney’s request to “reset” the calendaring.  The denial in Grewal might not be due to a loss of patience with late continuance requests, however.  Grewal is on a fast track.  The court filed two amicus briefs in the case just two days before setting the matter for argument, and it atypically denied an application for an extension of time to answer those and other amicus briefs.  Also, Grewal is consolidated with another case, so a continuance would have disrupted the schedule of two cases.

The better practice remains that counsel should tell the court about any potentially conflicting plans as soon as possible, but definitely before a case is placed on the oral argument calendar.


April 10, 2015

Much-watched arbitration case one of 10 arguments on Supreme Court’s early-May calendar

The Supreme Court yesterday announced its early-May calendar.  May is the only month in which the court regularly has two calendars.  And the May calendars are often larger than normal, because the court is putting an extra number of cases into the pipeline before the argument-free months of July and August.  Thus, this year’s early-May calendar has 10 cases, the first calendar with more than six since late May of last year.

Leading off the early-May arguments is Sanchez v. Valencia Holding Co., an arbitration case that has attracted substantial attention.  And it has attracted attention for a long time.  Review was granted more than three years ago, and there is only one un-argued non-death penalty case (civil or criminal) that has been on the court’s docket as long — Estate of Duke, in which the court granted review on the same day as Sanchez.

On May 5 and 6, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Sanchez v. Valencia Holding Co.:  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?
Last year, the court invited supplemental briefing on nomenclature:
In formulating the standard for determining whether a contract or contract term is substantively unconscionable, this court has used a variety of terms, including “unreasonably favorable” to one party (Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1145); “so one-sided as to shock the conscience” (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (2012) 55 Cal.4th 223, 246); “unfairly one-sided” (Little v. Auto Stiegler, Inc. (2003) 29 Cal.4th 1064, 1071-1072; “overly harsh” (Armendariz v. Foundation Health Psychare Services, Inc. (2000) 24 Cal.4th 83, 114; and “unduly oppressive” (Perdue v. Crocker National Bank (1985) 38 Cal.3d 913, 925).  Should the court use only one of these formulations in describing the test for substantive unconscionability and, if so, which one?  Are there any terms the court should not use?  Is there a formulation not included among those above that the court should use?  What differences, if any, exist among these formulations either facially or as applied?
[Disclosure:  Horvitz & Levy filed an amicus curiae brief supporting the defendant.]

J.R. Marketing, L.L.C. v. Hartford Casualty Insurance Company:  After an insured has secured a judgment requiring an insurer to provide independent counsel to the insured (see San Diego Fed. Credit Union v. Cumis Ins. Society Inc. (1984) 162 Cal.App.3d 358), can the insurer seek reimbursement of defense fees and costs it considers unreasonable and unnecessary by pursuing a reimbursement action against independent counsel or can the insurer seek reimbursement only from its insured?
[Note:  counsel for one of the respondents on review today asked the court to reschedule the oral argument.  Recent history suggests the request is not a lost cause.  See People v. Grewal, post.]
[Disclosure:  Horvitz & Levy represents the petitioner on review.]

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

Marriage of Davis:  For the purpose of establishing the date of separation under Family Code section 771, may a couple be “living separate and apart” when they reside in the same residence?
[Note:  argument in this case was continued from the April calendar.]

In re Welch:  Is petitioner entitled to relief on the ground of jury misconduct (ex parte communications from the trial court bailiff) as alleged in claim 6 or the ground of ineffective assistance of counsel (failure to investigate and present evidence of petitioner’s social history) as alleged in claim 18 of the petition for writ of habeas corpus filed May 24, 2002?

People v. Cunningham:  [This is an automatic appeal from a January 1996 judgment of death.  The court’s website does not list issues for such appeals.]

People v. Grewal and People v. Nasser:  Are the internet café games at issue in these cases subject to Penal Code section 330b, subdivision (d), on the ground they constitute “slot machine[s] or device[s]”?
[Note:  No cobwebs on these cases.  The court filed an amicus brief in Grewal just three days ago.  However, counsel for two defendants in Grewal today filed a motion to reschedule the argument.  See J.R. Marketing, ante.]

People v. Banks:  (1) Was the evidence sufficient to establish that defendant Matthews was a “major participant” within the meaning of Penal Code section 190.2, subdivision (d)?  (2) Does the true finding on the special circumstance violate due process?  (U.S. Const., 5th & 14th Amends.; Cal. Const., art. I, §§ 7, 15; Enmund v. Florida (1982) 458 U.S. 782.)

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

People v. Johnson:  [This is an automatic appeal from an April 2002 judgment of death.  The court’s website does not list issues for such appeals.]


April 9, 2015

Supreme Court explains how many classrooms a charter school must be provided by a school district

In its opinion this morning in California Charter Schools Association v. Los Angeles Unified School District, the Supreme Court addresses an education law issue that the court says has “been the subject of considerable litigation.”  The issue is how to determine whether charter school students have access to facilities — in this case, the number of classrooms — that are “reasonably equivalent” to those available to other public school students.  The court finds fault with classroom-counting formulas advocated by both parties and specifies an evaluation method to be used in the future.

The court’s unanimous opinion is authored by Justice Goodwin Liu.  It reverses the Second District, Division Five, of the Court of Appeal.

April 8, 2015

No conference held the week of April 6, 2015

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

April 8, 2015

Charter school opinion filing tomorrow

Tomorrow, the Supreme Court will file its opinion in California Charter Schools Association v. Los Angeles Unified School District, which raises the issue whether the Court of Appeal adopted an incorrect methodology for determining what facilities a school district is required to afford to a charter school in accordance with Education Code section 47614?

The case was argued on the court’s February calendar.

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

April 6, 2015

Supreme Court is unanimous in sua sponte instruction and DUI evidence cases

The Supreme Court filed two opinions this morning.  Both were unanimous decisions, although there was a separate concurring opinion in one.

In People v. Diaz, the court held that it is appropriate for a trial court to instruct a jury to consider a criminal defendant’s out-of-court statements with caution when those statements form the basis of a prosecution for making criminal threats, but that the trial court need not give the instruction sua sponte.  The court affirmed the Sixth District Court of Appeal in a unanimous opinion by Chief Justice Tani Cantil-Sakauye.  Regarding the propriety of the instruction, the court disapproved an opinion by the Second District, Division Six.  The court effectively overruled portions of its prior opinions that had required the instruction be given sua sponte.

The court concluded in Coffey v. Shiomoto that, in a reviewing the suspension of a driver’s license, a trial court could consider evidence in addition blood and breath test results to determine that a driver’s blood alcohol level was above the legal limit.  In the case before it, that other evidence included arrest reports, which described the physical manifestations of the driver’s intoxication, such as her general appearance, erratic driving, poor performance on field sobriety tests, and the strong odor of alcohol she projected.  Affirming the Fourth District, Division Three, the court’s opinion was written by Justice Kathryn Werdegar.  All justices signed that opinion, except Justice Goodwin Liu, who wrote a separate concurrence.

April 3, 2015

Summary of April 1, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, April 1, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

McGill v. Citibank, S224086—Review Granted—April 1, 2015

This case presents the following issue: Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration?

In McGill, the plaintiff sued defendant Citibank for claims against the marketing and administration of the company’s “Credit Protector” plan, which in exchange for a monthly premium, deferred or credited the customer’s credit card account when qualifying events occurred (including long-term disability, unemployment, and hospitalization). When plaintiff opened her account with defendant, their agreement did not include an arbitration provision; however, defendant later sent plaintiff notice of the inclusion of an arbitration provision, providing her with a deadline to opt out. Plaintiff did not opt out of the arbitration provision.

When plaintiff brought her class action in the trial court, defendant filed a petition to compel her to arbitrate her claim on an individual basis, per the arbitration provision in their agreement. The trial court refused to order arbitration of plaintiff’s injunctive relief claims. Defendant appealed.

The Court of Appeal, Fourth District, Division Three, reversed in a published opinion, McGill v. Citibank, N.A. (2014) 232 Cal.App.4th 753, and remanded for the trial court to order all of plaintiff’s claims to arbitration. It relied on the U.S. Supreme Court’s decision in Concepcion, which found that the FAA preempts all state-law rules, including the Broughton-Cruz rule, that prohibit arbitration of a particular type of claim.

Rivers v. Cedar-Sinai Medical Care Foundation, S224592—Review Granted and Held—April 1, 2015

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

In Rivers, the plaintiff brought a class action and individual claims against her employer, defendant Cedar-Sinai Medical Care Foundation. When she was hired, plaintiff signed an arbitration agreement requiring both parties to arbitrate claims regarding plaintiff’s employment or termination. However, the agreement did not mention an arbitration requirement for class action claims. When plaintiff filed her claims, defendant filed a motion to compel arbitration. The trial court interpreted the agreement, determining that the parties intended to arbitrate individual claims but not class claims.

The Court of Appeal, Second District, Division Seven, reversed in an unpublished opinion, Rivers v. Cedar-Sinai Medical Care Foundation (Jan. 13, 2015, B249979), ruling the decision of whether the parties agreed to class arbitration was a procedural issue to be determined by the arbitrator, not by the court.

Review Denied (with dissenting justices)



Los Angeles Police Protective League v. City of Los Angeles, S224083—Depublished Court of Appeal Opinion—April 1, 2015

The issue in this case was whether plaintiffs had taxpayer standing under Code of Civil Procedure section 526a to challenge the Los Angeles Police Department’s special order regarding impounding vehicles driven by unlicensed drivers. The Court of Appeal, Second District, Division Eight, held the special order was not preempted because it neither created new law nor conflicted with existing law. But because the order implemented existing law, the expenditure of public funds to enforce it was a matter within the wide discretion of city officials. Thus, plaintiffs lacked taxpayer standing to challenge the special order.  (Los Angeles Police Protective League v. City of Los Angeles (2014) 232 Cal.App.4th 907.)

April 3, 2015

DUI evidence, sua sponte instruction opinions filing Monday

On Monday morning, the Supreme Court will issue two opinions, including one in which the court has threatened to overrule some of its past precedents.

Coffey v. Shiomoto asks these questions:  (1) Can circumstantial evidence other than the results of chemical tests be used to prove that a driver’s blood-alcohol content at the time of driving was the same as, or greater than, the results of a blood-alcohol test taken approximately an hour after driving?  (2) Is the decision of the Court of Appeal consistent with the requirements of Evidence Code section 604 for proof of an initially presumed fact after the presumption has been rebutted?

In People v. Diaz, the court will decide:  (1) Did the trial court err by failing to instruct the jury sua sponte that it must consider defendant’s extrajudicial, oral statements with caution when the statements constituted the criminal act?  (2) If so, did the Court of Appeal correctly conclude that the trial court’s failure to instruct was harmless error?

The Supreme Court has indicated it might use Diaz to overturn prior case law.  The court ordered supplemental briefing on these issues:  (1) Are there grounds for this court to reconsider precedent holding that a cautionary instruction concerning a defendant’s extra-judicial statements must be given sua sponte, even in the absence of a statute mandating that the instruction be given?  (See, e.g., People v. Beagle (1972) 6 Cal.3d 441, 455-456 and fn. 4; People v. Carpenter (1997) 15 Cal.4th 312, 392.)  (2) What rationale exists for requiring the cautionary instruction to be given sua sponte, in light of other available instructions, including the general instructions on witness credibility that are routinely given in every case?  (See, e.g., CALCRIM No. 226.)  (3) If a cautionary instruction is not required sua sponte in every case in which a defendant’s extrajudicial statements tending to prove guilt are admitted, under what circumstances, if any, should it be given upon request?  (4) If the rule requiring the court to give the cautionary instruction sua sponte is changed, should the new rule apply retroactively to defendant’s case?  (5) What effect, if any, does the Legislature’s adoption of Penal Code section 859.5, subdivision (e)(3), effective January 1, 2014, have on these issues?

Coffey and Diaz were argued on the court’s January calendar.  Although Monday is the last regular filing day within the 90-day filing period for January cases, one matter from that calendar will remain undecided.  In People v. Scott, the court vacated submission and asked for post-argument briefingScott was resubmitted on March 11.

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

April 1, 2015

New Supreme Court photo

Here is your new Supreme Court photo:


The court’s website indicates the photo’s release date was Monday, but we didn’t notice the photo until today.  Could this be a nunc pro tunc action to avoid saying the photo was released on April Fool’s Day?

The court has posted biographies for all of the justices, except for Justice Leondra Kruger.

March 31, 2015

Webinar — “The California Supreme Court: What to Expect in 2015″

Three experienced appellate lawyers at Sedgwick LLP will present a webinar on April 29 to discuss “the current California Supreme Court, including its caseload, review rates and roster.”  It looks like the webinar will focus on the court’s civil docket.

March 30, 2015

Supreme Court keeps an eye out for cases in which to grant review on its own motion

The Supreme Court last week granted review on its own motion in Maas v. Superior Court, which raises the issue whether Code of Civil Procedure section 170.6 permits a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus.

Review on the court’s own motion (rule 8.512(c)) is uncommon.  When it does occur, it’s often because the court is asked to take that action by somebody who couldn’t file a petition for review.  For example, in In re L. H., the Court of Appeal asked the Supreme Court to grant review on its own motion and send the case back after the Court of Appeal had dismissed an appeal for failure to file an opening brief and the appellant’s counsel didn’t protest the dismissal until the Court of Appeal had already lost jurisdiction and the time had expired to petition for review.  The Supreme Court obliged.

In Maas, however, the Supreme Court granted review and is keeping the case for decision, and nobody seemed to have asked for review of the Court of Appeal’s published decision.

So, how did Maas get on the Supreme Court’s radar screen?  We don’t know. 101209-N-2943B-001 The Supreme Court won’t comment on specific cases, but a response to an inquiry explained that the court receives information about cases from a variety of sources.  And one of those sources is the court’s staff attorneys, whose responsibilities include reviewing the advance sheets and bringing to the court’s attention matters that it might want to act upon on its own motion.

We didn’t realize that was part of Supreme Court staff’s job description.  Nor can we tell if that was the catalyst for the court’s action in Maas, nor what it is about the Maas case that interests the court.  However, our reading of the Court of Appeal’s opinion and the Supreme Court’s statement of the issue presented indicates the Supreme Court might reverse the Court of Appeal and rule for the Attorney General on a ground the Attorney General apparently hasn’t argued yet.  Shades of People v. Grimes?

March 27, 2015

Summary of March 25, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 25, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Hernandez v. W.R. Thomas, Inc., S224451—Review Granted and Held—March 25, 2015

The court ordered briefing deferred pending decision in Sanchez v. Valencia Holdings Co., LLC, S199119, which presents the following issue: Does the Federal Arbitration Act (9 U.S.C. § 2), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U. S. 321, 131 S.Ct. 1740, preempt state law rules invalidating mandatory arbitration provisions in a consumer contract as procedurally and substantively unconscionable?

In Hernandez, plaintiffs sued defendant Direct Auto Plaza alleging breach of a vehicle purchase agreement. Defendant petitioned to compel arbitration pursuant to an arbitration provision in the parties’ agreement. Plaintiffs objected, contending the arbitration provision was procedurally and substantively unconscionable. The court rejected plaintiffs’ contentions and ordered the matter to arbitration.

The Court of Appeal, Fourth District, Division One, affirmed the order in an unpublished decision. First, the court concluded that there was only a low level of procedural unconscionability concerning the parties’ transaction. Although the industry-drafted purchase agreement was a contract of adhesion and did not clearly disclose the arbitration provision, the court concluded plaintiffs were notified of the arbitration provision and given ample time to review the entire agreement. Second, the court concluded that the terms of the agreement were not substantively unconscionable, reasoning that the provision pertaining to the finality of the arbitrator’s decision was not so unreasonably harsh as to preclude enforcement of the parties’ agreement.

Review Denied (with dissenting justices)




March 27, 2015

Despite cert. denial, Supreme Court’s Iskanian opinion could still get SCOTUS review

Last June, in Iskanian v. CLS Transportation Los Angeles, the California Supreme Court settled a split of authority among California Courts of Appeal over the enforceability of arbitration clauses waiving representative actions permitted by the Private Attorneys General Act (PAGA) where the arbitration agreements are governed by the Federal Arbitration Act (FAA).  Iskanian held that an arbitration provision “compel[ling] the waiver of representative claims under the PAGA” is “contrary to public policy and unenforceable as a matter of state law.”  Iskanian also concluded that this rule was not preempted by the FAA.

Although Iskanian settled the division among California’s state courts, it did not end the debate over the FAA’s impact on PAGA representative action waivers.  Prior to Iskanian, numerous federal district courts in California had decided that PAGA representative action waivers must be enforced under the FAA.  Now, a majority of federal district courts have similarly declined to follow Iskanian, concluding that the FAA preempts Iskanian’s refusal to enforce these PAGA waivers.  (See, e.g., Estrada v. CleanNet USA, Inc. (N.D.Cal. Feb. 24, 2015) 2015 WL 833701, at pp. *4-*5; Lucero v. Sears Holdings Management Corp. (S.D.Cal. Dec. 2, 2014) 2014 WL 6984220, at pp. *4-*6 [collecting cases declining to follow Iskanian].)  Consequently, California’s state and federal courts are divided over the enforceability of PAGA representative action waivers under the FAA.

Recently, the employer in Iskanian invoked this continuing schism in an effort to persuade the U.S. Supreme Court to grant its cert. petition there.  But the employee successfully persuaded the high court to deny this cert. petition after stressing that the Ninth Circuit had not yet decided if it would follow Iskanian and urging the U.S. Supreme Court to wait for the Ninth Circuit to address the issue.

The U.S. Supreme Court may soon get that opportunity.  This week, the Ninth Circuit set oral argument in the following three arbitration appeals, where it is poised to decide whether PAGA representative action waivers must be enforced under the FAA (the very question addressed by Iskanian): (1) Sakkab v. Luxottica Retail North America, no. 13-55184; (2) Sierra v. Oakley Sales Corp., no. 13-55891; and (3) Hopkins v. BCI Coca-Cola Bottling Co., no. 13-56126.  The arguments in Sakkab and Hopkins are set for June 3, while the argument in Sierra is set for June 4.

If the Ninth Circuit, like many district courts, elects not to follow Iskanian, the U.S. Supreme Court may step in to resolve the conflict.  If it were to do so, the high court would be indirectly reviewing Iskanian’s rule even though the court had previously denied the cert. petition in Iskanian.  Nor would this be the first occasion when the high court will have undertaken such indirect review.  For example, in People v. Diaz (2011) 51 Cal.4th 84, the California Supreme Court held that the Fourth Amendment allowed a warrantless search of cell phone data incident to arrest as long as the cell phone was immediately associated with an arrestee’s person.  But, just last year, in Riley v. California, the U.S. Supreme Court granted certiorari and came to the opposite conclusion in reversing a California Court of Appeal decision that simply followed Diaz.

Interestingly, the Ninth Circuit appeals in Sakkab, Sierra, and Hopkins may call on the Ninth Circuit (and perhaps even the U.S. Supreme Court) to resolve not only the conflict over the enforceability of PAGA representative action waivers but also the related conflict over whether federal False Claims Act (FCA) actions are subject to arbitration under the FAA.

Iskanian held that the FAA does not require courts to enforce PAGA waivers because PAGA representative actions resemble qui tam claims brought under the FCA.  According to Iskanian, the FAA does not preempt “a rule prohibiting the waiver of this kind of qui tam action” since it is brought on behalf of the government.

But Iskanian ignored that courts are divided over whether the FAA mandates the enforcement of agreements to arbitrate FCA claims, thereby choosing a side in this preexisting conflict.  As we explained last year, several federal district court decisions hold that FCA claims are subject to arbitration under the FAA.  As one court put it, although an FCA qui tam claim is “necessarily ‘brought in the name of the Government,’ it still represents a claim belonging to the [p]laintiffs themselves” and is thus subject to arbitration pursuant to the FAA.  (Deck v. Miami Jacobs Business College Co. (S.D.Ohio Jan. 31, 2013) 2013 WL 394875, at pp. *6-*7.)

Since Iskanian’s rationale for refusing to apply the FAA’s mandate to PAGA representative action waivers relies on the premise that qui tam claims like those under the FCA are not subject to the FAA—a premise with which other courts disagree—a court assessing Iskanian’s rationale might address whether it agrees with the contrary line of case law applying the FAA to FCA claims.  Indeed, given this existing conflict over the FAA’s applicability to qui tam claims, U.S. Supreme Court review could be warranted even if the Ninth Circuit were to agree with Iskanian’s rationale in Sakkab, Sierra, or Hopkins.

Moreover, Iskanian’s linking of PAGA representative action waivers to FCA qui tam claims might persuade the Ninth Circuit not to follow Iskanian’s rationale.

After all, courts who have refused to compel arbitration of FCA claims often did so based on the FAA’s so-called “vindication” exception.  (See, e.g., Winston v. Academi Training Center, Inc. (E.D.Va. Mar. 13, 2013) 2013 WL 989999, at *1-*2.)  This “judge made exception” is not predicated on the FAA’s text and instead “originated as dictum” in a U.S. Supreme Court arbitration decision from the 1980s.  (Am. Exp. Co. v. Italian Colors Rest. (2013) 133 S.Ct. 2304, 2310.)  This earlier decision indicated that Congress may be able to manifest an intention in a federal statute enacted after the FAA to exempt federal statutory rights from the FAA’s scope.  (See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. (1985) 473 U.S. 614, 627-628.)  Based on this narrow premise, prior high court decisions have suggested in dicta that if a party could not effectively vindicate a federal statutory claim in arbitration, an inherent conflict might exist between the FAA and the federal law in question and this conflict may perhaps override the FAA’s mandate.  (See, e.g., Sherason/Am. Exp., Inc. v. McMahon (1987) 482 U.S. 220, 226-227, 242.)  This prospect of a potential conflict between two different federal laws has convinced some courts that the FAA is inapplicable to FCA claims.  (See, e.g., Nguyen v. City of Cleveland (N.D.Ohio 2000) 121 F. Supp.2d 643, 646-647.)

But unlike the California Supreme Court—which expanded this vindication principle to claims asserting state statutory rights (e.g., Broughton v. Cigna Healthplans of Cal. (1999) 21 Cal.4th 1066, 1082-1083)—the Ninth Circuit recently held that this principle “does not extend to state statutes.”  (Ferguson v. Corinthian Colleges, Inc. (9th Cir. 2013) 733 F.3d 928, 935-936.)  As a result, even assuming federal FCA qui tam claims are not subject to the FAA pursuant to the vindication principle, the Ninth Circuit may still refuse to apply this principle to PAGA representative action waivers in Sakkab, Sierra, or Hopkins because PAGA claims instead derive from state law.

Of course, these Ninth Circuit appeals are not the only cases that could present the U.S. Supreme Court with an opportunity to revisit Iskanian’s rule.  Rather, the high court will get that opportunity even before the Ninth Circuit hears oral argument when the U.S. Supreme Court decides whether to grant the employer’s cert. petition in Bridgestone Retail Operations, LLC v. Brown.  There, the California Court of Appeal followed Iskanian to hold that a PAGA waiver was unenforceable.  The employer filed a cert. petition earlier this year and the high court has requested a response from the employee that is currently due on April 27.  The U.S. Supreme Court may rule on this cert. petition around the same time, or just before, the Ninth Circuit hears oral argument about Iskanian’s rule.

[Full disclosure: Horvitz & Levy filed an amicus brief in support of the employer in Iskanian, arguing the FAA preempted an earlier California Supreme Court decision (Gentry) that permitted the invalidation of class action waivers in wage and hour lawsuits.  Iskanian agreed that the FAA preempted this rule.]

March 26, 2015

Crime victim can address Supreme Court . . . in writing

A case on the Supreme Court’s April calendar concerns a restitution award to a crime victim.  After the court scheduled oral argument in the case — People v. Ford — the crime victim asked for permission to speak at the argument.  The request was made under Marsy’s Law, which, among other things, gives crime victims the right “[t]o be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.”  (Cal. Const., art. I, § 28(b)(8).)

After requesting and receiving briefing from the parties on the issue, the court decided yesterday that the right to be heard is satisfied, at least in the Supreme Court, by allowing the crime victim to address the court in writing.  The court’s order states that the crime victim “may be heard in this court (Cal. Const., art. I, § 28, subd. (b)(8)) by submitting a letter to the Clerk of Court that will be circulated to all the justices.  (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247-1249; Today’s Fresh Start, Inc. v. Los Angeles County Office of Education (2013) 57 Cal.4th 197, 212-213; accord, Pennsylvania Coal Mining Association v. Insurance Department (Pa. 1977) 370 A.2d 685, 693-694.)”

In the Lewis case cited in the court’s order, the court held that appellate courts are not required to hold an oral argument before issuing a peremptory writ in the first instance.  The court there said that the meaning of “hear” and “hearing” “most commonly includes an auditory component, but when used in a legal sense they do not necessarily encompass oral presentations.”  (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1247, fn. omitted.)

Additionally in the Ford case, the court today broadened the issues to be addressed at oral argument.  The issue had been solely whether the trial court had jurisdiction to award restitution to the victim although defendant’s probationary term had expired nine days earlier.  The court now wants counsel to also discuss:  (1) Is the trial court’s order of May 17, 2012, an appealable order?  (See Pen. Code, § 1237; cf. Adoption of Michael H. (1995) 10 Cal.4th 1043, 1050.)  (2) If not, is the order subject to discretionary writ review?  (3) If the order is not appealable but is reviewable by a discretionary writ, may and should this court treat the purported appeal as a writ?  (See Olson v. Cory (1983) 35 Cal.3d 390, 401.)  (4) Should defendant be estopped from challenging the jurisdiction of the trial court to award restitution after his probation had expired?

March 26, 2015

Chief Justice delivers annual State of the Judiciary Address

Chief Justice Tani Cantil-Sakauye delivered her annual State of the Judiciary Address to the Legislature on Monday. As Paul Jones reports in the Daily Journal[subscription required], the Chief “placed less emphasis” than in recent years “on pressing lawmakers for more money and focused instead on efficiency.” She asserted that budget cuts, which have cost California’s courts more than $1 billion over a five-year period, mean that the judicial branch must continue to become more efficient and to innovate. The Chief Justice noted that, as a result of her creation of a Strategic Evaluation Committee, the Judicial Council’s staff was reduced by 30 percent and a court construction cost reduction program was implemented. As Jones points out, however, the Chief did not discuss a state audit, released in January, which was critical of judicial branch spending.

The Chief emphasized other themes as well. She thanked attorneys, the State Bar, and various public officials for speaking out to legislators in support of the judiciary. She also warned against civic apathy as she looked to history for lessons about the need to pursue a more fair, just, and democratic society.

March 23, 2015

Chief Justice to deliver state of the judiciary address this afternoon [UPDATED]

Chief Justice Tani Cantil-Sakauye will this afternoon address the Legislature on the state of the judiciary.  It is an almost annual event.  The address can be viewed on the California Channel beginning at 3:45.

[Update:  video of the address is now available.]

March 20, 2015

Summary of March 18, 2015 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on Wednesday, March 18, 2015. The summary includes those civil cases in which (1) review has been granted, (2) review has been denied but one or more justices has voted for review, or (3) the Court has ordered depublished an opinion of the Court of Appeal.

Review Granted

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, S223536—Review Granted—March 18, 2015

This case presents the following questions: (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?

This is an action for breach of a contract to purchase real estate. As affirmative defenses, defendants alleged the contract was illegal and that it was extinguished by novation when the parties entered into a later option agreement. Following a bench trial, the court ruled in defendants’ favor on both grounds but declined to award attorneys’ fees.

The Court of Appeal, First District, Division Two, reversed the denial of attorneys’ fees in a published opinion, Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2014) 231 Cal.App.4th 805. The court concluded the attorney fees clause applied to the novation defense because it was raised in connection with an “alleged dispute, breach, default, or misrepresentation” concerning a provision of the parties’ agreement. Second, citing Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263 and Gil v. Mansano (2004) 121 Cal.App.4th 739, the court held the assertion of an affirmative defense constituted an “action” or “proceeding” under Civil Code section 1717.

Justice Richman dissented, disagreeing that the novation defense arose out of a dispute involving the parties’ agreement.

Yoonessi v. Toyota Motor Sales USA, S223679—Review Granted & Held—March 18, 2015

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

Review Denied (with dissenting justices)




March 20, 2015

After legislative overruling, Supreme Court to reconsider 2012 denial of habeas relief

In In re Richards (2012) 55 Cal.4th 948, a 4-3 Supreme Court held the defendant was not entitled to habeas corpus relief from a murder conviction that had been based in part on bite-mark testimony by a dental expert that, post-conviction, had been recanted by the expert himself and discredited by other experts based on newly available computer technology.  The majority concluded the incriminating expert testimony was not “false evidence” within the meaning of the habeas corpus statute.

Last year, the Legislature passed and the Governor signed a bill to overrule the Richards decision.  In January, the defendant filed another habeas corpus petition, this time directly in the Supreme Court.  Yesterday, the court unanimously issued an order to show cause why relief should not be granted on the ground that the defendant was convicted based on false evidence as (newly) defined in the habeas corpus statute.

March 20, 2015

Bring your computer or tablet into the Supreme Court when arguing

The Supreme Court has announced a new policy that, starting with the court’s April calendar, will allow those arguing cases to bring laptops or tablets into court for the limited purpose of helping with the argument.  It’s a self-styled “restricted public use” policy, however.  No show-and-tell, no recording.  Counsel can use the electronic devices only to look at his or her notes or the briefs or the record or whatever else might inspire eloquence.

Here’s the policy:

Only counsel and self-represented litigants may use laptop computers and electronic tablets in the courtroom.  Such devices may be used only as an aid in presenting oral argument, and may not be used to display demonstrative evidence to the court or for any other purpose.  Devices must be silenced and placed in “airplane mode” at all times.  No cellular telephones or other electronic devices are permitted in the courtroom, except for assisted listening devices.  No audio or video recording or photography is permitted in the courtroom, except in compliance with California Rules of Court, rule 1.150.  Failure to comply with these restrictions may result in the violator being removed from the courtroom.

The First District Court of Appeal has implemented the same policy.

March 16, 2015

Hong Yen Chang gets his law license, 125 years late, after Supreme Court acknowledges a “grievous wrong”

Stating that it was “past time to acknowledge that [his] discriminatory exclusion . . . from the State Bar of California was a grievous wrong,” the Supreme Court this morning granted Hong Yen Chang “posthumous admission as an attorney and counselor at law in all courts of the state of California.”

One hundred and twenty-five years ago, the court denied Chang’s admission application because he was not an American citizen and was prohibited by federal law from becoming a citizen.  Noting that revisiting the denial “requires a candid reckoning with a sordid chapter of our state and national history,” the court recounts in some detail that racist history and concludes that “the legal and policy underpinnings of our 1890 decision have been discredited.”

In a per curiam opinion, the court states that previously denying Chang admission to the bar “denied Chang equal protection of the laws . . . [and] was also a blow to countless others who, like Chang, aspired to become a lawyer only to have their dream deferred on account of their race, alienage, or nationality.  And it was a loss to our communities and to society as a whole, which denied itself the full talents of its people and the important benefits of a diverse legal profession.”

The court’s acknowledgment of past governmental and societal wrongs, and of its part in those wrongs, makes the court a truth and reconciliation commission of sorts.  Assuming that salutary role cannot help but have a positive effect.

The motion for Chang’s posthumous admission — drafted by Munger, Tolles, and Olson — was made by the Asian Pacific American Law Students Association at the University of California, Davis, and supported by the State Senate and by Chang’s descendants.