November 20, 2017

Lead Court of Appeal pension case now set for argument

Two weeks ago, we updated the status of a Supreme Court grant-and-hold case (Marin Association of Public Employees v. Marin County Employees’ Retirement Association, a high-profile public-pension matter) that is uncommonly waiting for a Court of Appeal decision in another pension matter (Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.)  We noted that the lead Court of Appeal case — Alameda County — had been fully briefed for over 21 months with no oral argument scheduled yet and speculated that the Supreme Court might lose patience waiting for the Court of Appeal.

Today, the Court of Appeal scheduled oral argument in Alameda County.  The argument will be in three weeks.

Even with argument now scheduled, it will still likely be a while until there is a final decision in Alameda County and/or in Marin Association.  Under the same rule that applies to the Supreme Court, the Court of Appeal will have 90 days after the Alameda County argument to file its opinion.  Then, it could take another four months for the Supreme Court to decide whether it wants to hear the Alameda County case.  (Spoiler alert:  the Supreme Court probably will grant review, regardless of how the Court of Appeal decides the case.)  If it does grant review, the Supreme Court will then order briefing in Alameda County, Marin Association, or both.  It can be a long time — likely at least one year (see here and here) — from the grant of review to decision in the Supreme Court.  So, it might not be until 2019 or 2020 before the pension issues in the Alameda County and Marin Association cases are resolved.

November 17, 2017

Summary of November 15, 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 November 15, 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

FilmOn.com v. DoubleVerify, S244157–Review Granted– November 15, 2017

An Internet-based entertainment media provider brought suit against an authentication company for falsely classifying the provider’s websites as “Copyright Infringement-File Sharing” and “Adult Content” in reports to online advertisers who later cancelled their advertising agreements with the media provider. In a published opinion, FilmOn.com v. DoubleVerify, Inc. (2017) 13 Cal.App.5th 707, the Court of Appeal, Second District, Division Three, held: (1)  the media provider’s lawsuit was based on the authentication company’s conduct in furtherance of its right of free speech, and (2) the authentication company’s reports concerned an issue of public interest. Thus, the media provider’s action was subject to an anti-SLAPP motion to strike.

The question presented is: In determining whether challenged activity furthers the exercise of constitutional free speech rights on a matter of public interest within the meaning of Code of Civil Procedure section 425.16, should a court take into consideration the commercial nature of that speech, including the identity of the speaker, the identity of the audience, and the intended purpose of the speech?

Review Denied (with dissenting justices)

None.

Depublished

None.

November 13, 2017

No duty arises from church’s location of across-the-street overflow parking area

In Vasilenko v. Grace Family Church, the Supreme Court today holds that a church owed no duty of care to help a plaintiff cross a street between a church and the church’s overflow parking lot across the street.  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]  The court’s unanimous opinion by Justice Goodwin Liu comes with some caveats:  “a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”

The court finds no duty even though it acknowledges “the landowner has  increased its invitees’ exposure to the specific dangers of that particular street crossing and has thereby increased the likelihood that the invitee will encounter harm at that crossing.”

The court reverses the Third District Court of Appeal.

November 13, 2017

Supreme Court affirms death sentence following guilty pleas

The Supreme Court today affirms the death penalty in People v. Wall, a verdict the jury returned after the defendant had pleaded guilty to first degree murder and four special circumstances.  The court’s unanimous opinion by Justice Goodwin Liu does find the superior court violated defendant’s statutory — but not his constitutional — right to be present during portions of jury voir dire, but it concludes the violation was harmless.  It also remands the case for reconsideration of a restitution fine.

The only issue at oral argument was whether the superior court erred in dismissing for cause a prospective juror who, the Supreme Court said, “repeatedly expressed uncertainty not as to her own views on the death penalty or the appropriateness of the death penalty in any particular case, but as to her ability to impose a death sentence.”  The court holds there was no constitutional error.

November 11, 2017

Recognizing Justice Chin’s service on Veteran’s Day

According to the bios on the Supreme Court’s website, Justice Ming Chin is the only member of the court who has served in the military:  “After he graduated from law school, Justice Chin served two years as a Captain in the United States Army, including a year in Vietnam, where he was awarded the Army Commendation Medal and the Bronze Star.”  He was also a captain in the Army Reserves for two additional years.

All the justices have long histories of public service, but it’s appropriate on this day to acknowledge the veteran on the court.

November 9, 2017

Drought’s over: property liability, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in Vasilenko v. Grace Family Church and People v. Wall, which were both argued on the September calendar.  (Briefs here; oral argument videos here and here.)

The court hasn’t filed an opinion since August 31.  (Here and here.)  The 10-week gap is normal for this time of year.

In Vasilenko, the court will decide whether one who owns, possesses, or controls premises abutting a public street has a duty to an invitee to provide safe passage across that public street if that entity directs its invitees to park in its overflow parking lot across the street?  (First District, Division Five, Court of Appeal Presiding Justice Barbara Jones is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Wall is an automatic direct appeal from a January 1995 judgment of death.  (Second District, Division Three, Court of Appeal Justice Luis Lavin is the pro tem.)

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

November 9, 2017

No conference held the week of November 6, 2017

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

November 8, 2017

Updating the status of an unusual grant-and-hold case

The looming pension crisis,” an article in today’s Daily Journal [subscription] by Dan Grunfeld of Pardee RAND Graduate School, serves as a tickler to check the status of a case that was the subject of a very unusual Supreme Court order.

When it granted review in Marin Association of Public Employees v. Marin County Employees’ Retirement Association, a high-profile public-pension matter, the court made it a grant-and-hold case.  Grant-and-hold orders are common.  But what made the Marin Association order different was what the court is “holding” the case for.  Almost always, the court will “hold” a case until the Supreme Court itself decides some other pending case that raises a similar issue.  In Marin Association, however, the case is on hold until a Court of Appeal decides a different pension case — Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association.

So, what’s the status?  Nothing much has happened since the Marin Association grant-and-hold order, and that was almost a year ago.  The hold-up seems to be in the Court of Appeal — First District, Division Four — where the Alameda County case has been fully briefed for over 21 months with no oral argument scheduled yet.

Grunfeld’s article says the Marin Association case will address a “critical issue” dealing with a “massive [pension] funding shortfall.”  And, he says, “As dire as the problem is now, it could nearly double in the next 12 years.”  “Tick, tick, tick . . .,” he concludes.

It looks like there will be a lot more ticks on the Marin Association clock unless the Supreme Court loses patience waiting for the Court of Appeal to decide Alameda County.  If it chooses, the high court can un-hold and proceed to decide Marin Association, and/or it could take the Alameda County case off the Court of Appeal’s hands now by transferring the matter to itself under article VI, section 12, of the state constitution.

November 7, 2017

Summary of November 1, 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 November 1, 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

Ramirez v. City of Gardena, S244549– Review Granted– November 1, 2017

The Court of Appeal, Second District, Division One, held in a published opinion, Ramirez v. City of Gardena (2017) 14 Cal.App.5th 811, that: (1) Vehicle Code section 17004.7(b)(2), which provides governmental immunity from personal injury or wrongful death claims resulting from law enforcement vehicular pursuit when the governmental entity has adopted and implemented an appropriate vehicle pursuit policy, does not require, as a prerequisite to immunity, proof of compliance or written certification of compliance by every single officer and (2)  the city’s vehicular pursuit policy was sufficient to trigger immunity under Vehicle Code section 17004.7(b)(2).

The Supreme Court limited review to the following issue:  Is the immunity provided by Vehicle Code section 17004.7 available to a public agency only if all peace officers of the agency certify in writing that they have received, read, and understand the agency’s vehicle pursuit policy?

Bonni v. St. Joseph Health System, S244148– Review Granted and Held– November 1, 2017

The Court of Appeal, Fourth District, Division Three, held in a published opinion, Bonni v. St. Joseph Health System (2017) 13 Cal.App.5th 851, that a surgeon’s retaliation claim against a hospital did not arise from statements made during peer review proceedings, but rather was based on an alleged retaliatory motive for undertaking  peer review, and thus did not arise from protected activity under the anti-SLAPP statute.

The Supreme Court granted review and deferred further action pending its decision of a related issue in Wilson v. Cable News Network, Inc., S239686, namely:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Esquith v. Los Angeles Unified School District, S244026 – Review Granted and Held –  November 1, 2017

In an unpublished decision, Esquith v. Los Angeles Unified School District (Cal.Ct.App., July 20, 2017, No. B276432) 2017 WL 3083474, the Court of Appeal, Second District, Division Four, held a teacher’s retaliation claim against a school district did not arise from a protected employment investigation, but rather that the investigation itself was retaliatory and discriminatory, and thus the investigation was not protected activity under the anti-SLAPP statute.

As in Bonni, above, the Supreme Court granted review and deferred further action pending its decision in Wilson v. Cable News Network, Inc., S239686, which presents the following question:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Review Denied (with dissenting justices)

In re A.W., S244430– Review Denied [Cuėllar, J., voted to grant review]– November 1, 2017

In an unpublished decision, In re A.W. (Cal.Ct.App., Aug. 11, 2017, No. E067059) 2017 WL 3446591, the Court of Appeal, Fourth District, Division Two, affirmed the juvenile court’s ruling: (a) that the Indian Child Welfare Act (25 U.S.C.  §  1901 et seq.) does not apply; and (b) upholding the termination of parental rights.  The Court of Appeal held that: (1) the father was not an enrolled member of a Native American Tribe on the date of the hearing; (2) the Indian Child Welfare Act does not require a child welfare agency to facilitate a tribe’s internal membership proceedings; and (3) the parents did not carry their burden to establish the juvenile court erred when it found their child was not an Indian Child and then terminated their parental rights.

Depublished

None.

November 7, 2017

Light December calendar announced [Updated x2]

The Supreme Court announced today that it will hear four cases in December.  The last two years’ December calendars had nine and seven cases.  The smaller number of cases this year could be attributable to the continuing vacancy on the court, which might continue for a while longer.  This will be the fourth consecutive calendar with Court of Appeal justices sitting temporarily.  (The court is up to the P’s in its mostly alphabetical assignment of pro tem justices.)

On December 6 and 7, in Los Angeles, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Superior Court (Lara):  Are the provisions of Proposition 57 that eliminated the direct filing of certain juvenile cases in adult court applicable to cases already filed?  (See also People v. Cervantes, S241323.)  In August, the court asked for supplemental briefing on whether Proposition 57 applies retroactively under the rationale of In re Estrada (1965) 63 Cal.2d 740.  The court granted review less than six months ago.  (The pro tem justice has not yet been assigned for this case.)

People v. Garton:  This is an automatic direct appeal from an April 2001 judgment of death.  The court’s website does not list issues for such appeals.  (Fifth District Court of Appeal Justice Charles Poochigian is the pro tem.)

Heller Ehrman LLP v. Davis Wright Tremaine LLP:  Under California law, what interest, if any, does a dissolved law firm have in legal matters that are in progress but not completed at the time the law firm is dissolved, when the dissolved law firm had been retained to handle the matters on an hourly basis?  The issue is being decided at the Ninth Circuit’s request; the Supreme Court agreed to address the issue 14 months ago.  (Second District, Division Four, Court of Appeal Justice Nora Manella is the pro tem.)

Alvarado v. Dart Container Corporation of California:  What is the proper method for calculating the rate of overtime pay when an employee receives both an hourly wage and a flat sum bonus?  The court granted review 18 months ago.  (Second District, Division Six, Court of Appeal Justice Steven Perren is the pro tem.)

[November 14 update:  Third District Court of Appeal Presiding Justice Vance Raye is the pro tem in the Lara case.]

[November 20 update:  Third District Court of Appeal Justice Ronald Robie has replaced Justice Raye as the pro tem in Lara.]

November 6, 2017

One year to Election Day for Justices Corrigan and Kruger, and probably for a justice to be named

One year from today is Election Day 2018 across the country.  In California, besides electing a new governor and other state-wide officers, voters will be asked to vote “yes” or “no” on keeping in office various state Supreme Court and Court of Appeal justices.  The justices serve 12-year terms, except when they’re first appointed or when they’re first elected to an unexpired term.  (See here and here.)

So, which members of the Supreme Court will be on the ballot next year?  Justices Carol Corrigan and Leondra Kruger, as long as they file their declarations of candidacy and a filing fee of about $4,500 by next August 15.  Joining them will be whoever Governor Jerry Brown appoints to fill the vacancy created by Justice Kathryn Werdegar’s retirement, assuming the appointment is made (and confirmed by the Commission on Judicial Appointments) by August 15, which is probable but not necessarily a given.

Justices almost always win their elections.  But you never know when the next 100-year flood will come.

November 3, 2017

Justice Corrigan apparently will not hear November’s arguments

(Most) counsel who will be arguing the five cases on the November calendar have signed stipulations saying they “have no objection to Associate Justice Corrigan’s participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.”  (It looks like there are still one or two attorneys in one case — Hernandez v. Restoration Hardware, Inc. — who haven’t submitted stipulations yet.)

November 2, 2017

New legislation prompts supplemental briefing requests in three juvenile LWOP cases

New legislation might clear three cases from the Supreme Court’s calendar.

In January, the Supreme Court granted review on its own motion in People v. Padilla after the Court of Appeal reversed a sentence of life without the possibility of parole for a murder committed by a 16-year-old.  U.S. Supreme Court precedent precludes automatic life-without-parole sentences for juvenile crimes.

Briefing in Padilla was completed three months ago, but the Attorney General last month wrote to the court that  “a recent change in the law . . . renders the question in this case moot.”  According to the Legislative Counsel, the new legislation — Senate Bill 394 — “make[s] a person who was convicted of a controlling offense that was committed before the person had attained 18 years of age and for which a life sentence without the possibility of parole has been imposed eligible for release on parole by the board during his or her 25th year of incarceration at a youth offender parole hearing.”

Yesterday, the court responded by asking the parties to brief, “What bearing, if any, does SB 394 . . . have on this court’s examination of the question presented for review in the above-titled case?”  The court also yesterday made the identical request in another pending case — People v. Mendoza — that involves the same issue as Padilla.

Similarly, in a third juvenile LWOP case, People v. Contreras, an un-hold case that was argued on the October calendar, the court three weeks ago vacated submission of the case and asked for supplemental briefing regarding the effect of SB 394, another new law, and several state regulations.

Last year, in People v. Franklin, the court concluded that delaying parole eligibility for 25 years is not functionally equivalent to life without parole and is thus constitutionally permissible.

November 2, 2017

Supreme Court approves revised prosecutor disclosure rules

Six months ago, the Supreme Court approved in part and rejected in part the State Bar trustees’ proposed amendments to rules of conduct focused on prosecutors.  The court asked the trustees, among other things, to reconsider provisions regarding the disclosure of information to criminal defendants, and the justices even proposed specific alternative language.  The trustees filed revisions at the end of August, which mostly, but not completely, adopt the court’s proposals.  The court today approved the new version of the rules.

Disclosure procedures are on the court’s radar not just regarding rules of professional conduct, but also in the cases it has agreed to hear.

October 28, 2017

Replacing Justice Werdegar might take a while longer

It’s been two months since Justice Kathryn Werdegar left the Supreme Court, and almost eight months since she announced her retirement.  But Governor Jerry Brown has yet to name a replacement, although he probably could have done so any time after Justice Werdegar’s announcement.  The prolonged vacancy has likely caused at least some disruption in the court’s work, including the need to temporarily assign Court of Appeal justices to rule on cases.  Next month will be the third oral argument calendar with pro tem justices, and the court will soon announce its December calendar with more temps.  If recent history is a guide, the wait for a new justice might not end in the near future.

The last time Governor Brown filled a vacancy — in 2014 — was when he appointed Justice Leondra Kruger to take Justice Joyce Kennard’s place.  The appointment came more than nine months after Justice Kennard announced her retirement, and nearly eight months after her retirement was effective.  There were seven oral argument calendars with pro tem justices.

Three years earlier, Governor Brown had been a little faster in replacing Justice Carlos Moreno.  Justice Goodwin Liu was appointed almost seven months after Justice Moreno announced his retirement, and five months after the retirement was effective.  That delay necessitated five calendars with pro tems.

There was one other occasion when Governor Brown named a Supreme Court justice during his second stint as the state’s chief executive.  But that one is not predictive of the timing of his next pick, because the Governor was then under a constitutional deadline to act.  Unlike Justices Moreno and Kennard, Justice Marvin Baxter retired by simply allowing his term to expire without seeking reelection.  Under those circumstances, article VI, section 16(d)(1), required Brown to nominate a candidate by a date certain that was only three months after Justice Baxter announced his retirement.  Brown acted quickly, nominating Justice Mariano-Florentino Cuéllar just one month after Baxter’s announcement.  Because of the constitution, Cuéllar then had to wait more than five months before actually joining the court.  (For a bit more on the distinctions between appointments and nominations, and between confirmation and retention elections, see here.)

October 27, 2017

Summary of October 25, 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 25, 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

Arnaudo Brothers v. Agricultural Labor Relations Board (United Farm Workers of America), S244322–Review Granted and Held– October 25, 2017

This is a writ proceeding addressing decisions by the Agricultural Labor Relations Board (the Board) that an agricultural employer committed unfair labor practices by refusing to bargain with, and provide information to, the United Farm Workers of America (the union).  The Fifth District Court of Appeal held in a published opinion, Arnaudo Brothers v. Agricultural Labor Relations Board (2017) 14 Cal.App.5th 22, that: (1) the union representative’s statement “We’re through with you” during a prior bargaining session with the employer did not constitute a clear and unequivocal disclaimer of interest in representing the bargaining unit; (2) that the union’s 30 years of inactivity following the ambiguous disclaimer of interest in continuing to represent the bargaining unit did not convert the ambiguous disclaimer into an effective disclaimer; (3) the employer’s position contesting its obligation to bargain with the union after 30 years of inactivity furthered the Agricultural Labor Relations Act’s policy of providing employees with freedom to choose whether to be represented by a union, and thus a grant of make whole relief was not appropriate; and (4) the Board was required to consider the effect of the union’s long absence on the employees’ right to the freedom of choice when determining whether make whole relief was appropriate.

The Supreme Court granted review and deferred further action pending its decision in Tri-Fanucchi Farms v. Agricultural Labor Relations Board, S227270, which presents the following issues: (1) Whether an employer can assert as a defense to a request for collective bargaining under the Agricultural Labor Relations Act (Lab. Code, § 1140, et seq.) that the certified union has “abandoned” the bargaining unit? (2) Did the Board err in granting “make whole” relief (Lab. Code, § 1160.3) as a remedy for the employer’s refusal to bargain with the union?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 26, 2017

Prop. 66 is now in force as the Supreme Court denies rehearing

Yesterday, the Supreme Court denied rehearing in Briggs v. Brown , which upheld most of Proposition 66, the ballot measure designed to speed up executions in California.  (The court made two minor modifications in the opinion.)  The court had previously routinely extended its time to rule on the rehearing petition.

The court said in its opinion that the initiative measure’s effective date “shall be the date our opinion becomes final.”  The order denying rehearing says “the decision in this matter is now final.”

 

October 25, 2017

The normal opinion drought continues

The Supreme Court won’t issue any opinions tomorrow.  That will mark eight weeks since the last filings.  (Here and here.)  The gap between opinions is typical for this time of year.

And the gap could grow.  Even with the 90-day rule, the court doesn’t need to file another opinion until December 4.  That’s the deadline for deciding cases argued on the September calendar.

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 x2]

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.]

[November 3 update:  Third District Court of Appeal Justice George Nicholson has replaced Justice Sandra Margulies as the pro tem in Hernandez.]

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.