August 18, 2017

Summary of August 16, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on August 16, 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

San Diegans for Open Government v. San Diego State University Research Foundation, S242529–Review Granted and Held– August 16, 2017

The Supreme Court granted review and deferred further action pending the disposition of Wilson v. Cable News Network, Inc., S239686, which presents the following issue:  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 of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?

Here, the underlying dispute between the parties concerned defendant’s publication of news articles critical of an attorney.  The plaintiff, an entity controlled by that attorney, sued the defendants and alleged violations of statutory prohibitions on self-dealing involving public funds. In a published opinion, San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, the Court of Appeal, Fourth District, Division One, rejected the plaintiff’s argument that the anti-SLAPP statute does not apply, holding that reporting the news is protected speech within the ambit of the anti-SLAPP statute.

Review Denied (with dissenting justices)

None.

Depublished

None.

August 18, 2017

“A Conversation with Justice Mariano-Florentino Cuéllar and a Review of Significant Decisions”

The Appellate Courts Committee of the Santa Clara County Bar Association will present a Supreme Court program on August 29, from noon to 2:00 p.m., in San Jose.  It will also be webcast live.

There will be a conversation with Justice Mariano-Florentino Cuéllar, followed by a review of significant Supreme Court decisions during the 2016-2017 term.  On the panel will be UC Berkeley Professor David Carrillo, Santa Clara County Counsel Danny Chou, and appellate lawyer Myron Moskovitz.

The panelists might or might not have available to discuss what will likely be the biggest Supreme Court opinion of the term — Briggs v. Brown, the challenge to Proposition 66, the initiative to speed up California’s death penalty system.  The case was argued on the June calendar, and the last regular opinion-filing day within the 90-day period is August 31.

August 17, 2017

Supreme Court finds assaulted harbor patrol officer was not a peace officer

Seeing “no reason why the Legislature might have wanted to confer the status and ‘formidable power’ of a peace officer on public employees who have no necessary law enforcement duties,” the Supreme Court today reverses a conviction for assaulting a peace officer because the prosecution did not prove that the assaultee — a harbor patrol officer — was a peace officer under the relevant statutory definition.  The court’s 5-2 opinion by Justice Kathryn Werdegar, in People v. Pennington, finds that the Legislature has conferred peace-officer-per-se status on only the Attorney General and Department of Justice special agents and investigators and that the evidence was insufficient to establish the assaulted harbor patrol officer was a peace officer.

The court is unanimous in finding to be flawed the statutory interpretation by the Second District, Division Six, Court of Appeal and in agreeing with a 2008 opinion by the Second District’s Division Four.  But Justice Leondra Kruger (joined by Chief Justice Tani Cantil-Sakauye) doesn’t agree that the evidence in this case was necessarily insufficient to meet the statutory definition of peace officer and would remand the case to the Court of Appeal to construe the definition under appropriate standards.

August 16, 2017

Opinion filing tomorrow about assaults on harbor patrol officers

Tomorrow morning, the Supreme Court will file its opinion in People v. Pennington, which was argued on the late-May calendar.  (Briefs here; oral argument video here.)

In Pennington, the court will decide whether the People proved that the named victim, a harbor patrol officer for the City of Santa Barbara Waterfront Department, is a peace officer within the meaning of Penal Code section 243, subdivision (b), supporting defendant’s conviction for battery on a peace officer.

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

August 16, 2017

Ninth Circuit sends employment law case to Supreme Court [Updated]

The Ninth Circuit today asks the California Supreme Court to answer a question that it says is one “of extreme importance to numerous employees and employers in California” and that has “no clear answer” under California law.  The request — in Frlekin v. Apple Inc. — is not unexpected; the federal appeals court at oral argument signaled this action.

The question in Frlekin is:  “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?”

Yesterday, the Ninth Circuit decided an appeal —Frealy v. Reynolds  — based on the Supreme Court’s answer to a referred question of state law in another case.  (The case was called Carmack v. Reynolds in the Supreme Court.)

The Supreme Court should let the Ninth Circuit know by mid-October — give or take — whether it will answer the question in Frlekin.  It probably will.

[August 18 update:  the Supreme Court docketed the Frlekin request yesterday.]

August 14, 2017

Summary of August 9, 2017 conference report for civil cases

The following is our summary of the Supreme Court’s actions on petitions for review in civil cases from the Court’s conference on August 9, 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

Quigley v. Garden Valley Fire Protection District, S242250 – Review Granted – August 9, 2017

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

The questions presented in the Supreme Court are as follows:  (1) Did defendants forfeit the immunity provided under Government Code section 850.4 for governmental entities involved in firefighting by failing to timely raise the defense before trial? (2) Does section 850.4 apply to immunize defendants in an action for personal injuries allegedly caused by a dangerous condition of property being used as a firefighting facility, where plaintiff’s injuries did not result from a condition of that property that rendered it inoperative, useless, or otherwise less effective in aiding defendant’s firefighting efforts?

Review Denied (with dissenting justices)

None.

Depublished

Hardesty v. State Mining and Geology Board, S242755– Depublished Court of Appeal Opinion– August 9, 2017

This was an action under the Surface Mining and Reclamation Act of 1975 (SMARA) (Pub. Resources Code § 2710 et. seq.) in which the plaintiffs challenged findings by the State Mining and Geology Board. The Board’s disputed findings concluded plaintiffs had no vested rights to surface mine at a particular location.  The Board’s findings effectively denied plaintiffs a “grandfather” exemption from the need to obtain a County mining permit. (See § 2776, subd. (a).) The trial court denied the plaintiff’s petition for writ of administrative mandate.  Plaintiffs then appealed from the judgment.

On appeal, plaintiffs argued, inter alia, the Board and the trial court misunderstood the legal force of their 19th century federal mining patents. They asserted that those patents established a vested right to surface mine after the passage of SMARA without the need to prove they were surface mining on SMARA’s operative date of January 1, 1976.  In a published opinion, Hardesty v. State Mining and Geology Board (2017) 11 Cal.App.5th 790, the Third District Court of Appeal held 19th century federal mining patents have no effect on the application of state mining regulations.  The Supreme Court ordered the opinion depublished.

August 13, 2017

Mind the gap . . . in the new publication rules when the Supreme Court dismisses review

A 2016 Supreme Court rules change means that granting review in a case no longer automatically depublishes the case’s Court of Appeal published opinion (rule 8.1105(e)(1)(B)), but, pending review, the opinion loses its precedential effect (rule 8.1115(e)(1) [opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only”]).

The new rules also provide that, after review, a Court of Appeal opinion’s precedential effect might be revived.  However, there’s apparently a gap in the rules creating uncertainty about the post-review precedential status of opinions in certain cases when the Supreme Court has dismissed review.

Rule 8.1115(e)(2) takes care of most — but not all — situations after the Supreme Court is done with a case in which it has granted review:  “After decision on review by the Supreme Court, unless otherwise ordered by the Supreme Court . . . , a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”

If the Supreme Court has issued an opinion in the case, or if the case was a grant-and-hold and there’s been a decision in the lead case, (e)(2) has you covered.  But what about when review is dismissed and there’s been no Supreme Court “decision on review”?

For example, reviews were dismissed because of settlements in Ace American Insurance v. Fireman’s Fund Insurance and Hayward v. Superior Court, and the court dismissed review in In re George F. because of mootness.  The Court of Appeal opinions remain published despite the dismissals of review (rule 8.528(b)(3)), but do they again have binding and precedential effect, or do they forever retain their pending-review status of being persuasive only?  The rules don’t say.

Can’t the Supreme Court fix things when it dismisses review in those types of cases by specifying the precedential effect of the Court of Appeal opinion?  It doesn’t look like it.  Rule 8.1115(e)(3) allows the Supreme Court to make an order specifying precedential effect, but only regarding “an opinion covered by (1) or (2),” i.e., those published Court of Appeal opinions in cases “[p]ending review and filing of the Supreme Court’s opinion” ((e)(1)) or “[a]fter decision on review by the Supreme Court” ((e)(2)).  A case in which review is dismissed without any decision doesn’t fall into either category.

The Supreme Court could depublish the Court of Appeal opinion after dismissing review (rules 8.1105(e)(2), 8.1125(c)), which would make the opinion not citeable even for its persuasive value (rule 8.1115(a)).  However, the Supreme Court didn’t do that in the Ace American, Hayward, or George F. cases, and in fact denied a depublication request in Hayward (a request which was opposed by the author of the Court of Appeal opinion).  Superior court judges can be excused if they’re unsure how much weight to give those opinions.

August 10, 2017

Supreme Court reaffirms limit on malicious prosecution actions

Reaffirming and strengthening the “interim adverse judgment rule,” the Supreme Court today holds in Parrish v. Latham & Watkins that plaintiffs who defeat a summary judgment motion on the merits cannot later be sued for malicious prosecution even if, after denying the motion, the superior court finds the plaintiffs’ action was brought in bad faith because it lacked evidentiary support.

The summary judgment denial is normally conclusive that the plaintiffs had probable cause to file the lawsuit, which defeats a subsequent malicious prosecution action.  The court’s unanimous opinion by Justice Leondra Kruger states the denial establishes that the plaintiffs’ “position had arguable merit, whether or not, after trial, the court wished it had ruled against them.”

Not every summary judgment denial has that effect, however.  The court explains that “the interim adverse judgment rule does not apply when the adverse judgment in question has been ‘shown to have been obtained by fraud or perjury.'”  But the opinion keeps the exception narrow, saying the general rule still applies even when “litigants or their lawyers inadvertently submit ‘materially false facts’ . . . in support of their claims.”

The court affirms the Second District, Division Three, Court of Appeal.

August 9, 2017

Malicious prosecution opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Parrish v. Latham & Watkins.  This will be the first opinion in a case argued on the June calendar.  (Briefs here; oral argument video here.)

Parrish raises these 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?

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

August 5, 2017

“Truancy case goes to the top”

The Ventura County Star’s lead story this morning reports on the Supreme Court’s recent grant of review in In re A.N.  The article, by Cheri Carlson, says the county public defender “has argued that the District Attorney’s Office short-circuited the legal system, filing a truancy case against [A.N.] before she had a chance to go before a Student Attendance Review Board, or SARB.”  The Second District, Division Six, Court of Appeal rejected that argument.

The Star has been covering this case and the county’s truancy system in general.

August 3, 2017

Divided Ninth Circuit reinstates California Supreme Court’s denial of death penalty habeas relief

Earlier this week, a 2-1 Ninth Circuit panel refused to go along with overturning a California Supreme Court decision, when the federal appeals court reversed a district court’s grant of habeas corpus relief to a death row prisoner.  The district court’s ruling was based on ineffective counsel during the penalty phase of the prisoner’s state court trial.  Previously, the Supreme Court had affirmed the death sentence, 6-1, in a direct automatic appeal (People v. Andrews (1989) 49 Cal.3d 200) and then, by a 5-2 vote, it denied a habeas corpus petition raising the ineffective-counsel issue (In re Andrews (2002) 28 Cal.4th 1234).

The appeals court decision in Andrews v. Davis supersedes a two-year-old opinion in which the court reached the same result, although the earlier opinion was unanimous (Andrews v. Davis (9th Cir. 2015) 798 F.3d 759).

The Supreme Court doesn’t always fare this well at the Ninth Circuit on habeas petitions.  (See here.)

August 2, 2017

No conference held the week of July 31, 2017

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

August 2, 2017

New pro tem parade begins as Supreme Court announces 9-case September calendar

Apparently giving up on having Justice Kathryn Werdegar’s replacement appointed by the Governor and confirmed in time for its first oral argument of the new term, the Supreme Court today announced a 9-case September calendar with 8 Court of Appeal justices sitting as pro tems.  (One justice is sitting on two related cases.)  Thus begins a new pro tem parade, even though it’s been five months since Justice Werdegar announced her plans to retire, effective August 31.

The pro tem appointments — made generally alphabetically — for September come from the H-I-J-K-L segment of the Court of Appeal roster.

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

Gerawan Farming, Inc. v. Agricultural Labor Relations Board:  (1) Does the statutory “Mandatory Mediation and Conciliation” process (Lab. Code, §§ 1164-1164.13) violate the equal protection clauses of the state and federal Constitutions? (2) Do the “Mandatory Mediation and Conciliation” statutes effect an unconstitutional delegation of legislative power? (3) May an employer oppose a certified union’s request for referral to the “Mandatory Mediation and Conciliation” process by asserting that the union has “abandoned” the bargaining unit?  (First District, Division Two, Court of Appeal Presiding Justice Anthony Kline is the pro tem.)

Tri-Fanucchi Farms v. Agricultural Labor Relations Board:  (1) May an employer 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?  (Presiding Justice Kline is the pro tem on this case, too.)

F.P. v. Monier:  Is a trial court’s error in failing to issue a statement of decision upon a timely request reversible per se?  (This case was continued from the late-May calendar.)  (First District, Division One, Presiding Justice Jim Humes is the pro tem.)

People v. Page:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”) apply to the offense of unlawful taking or driving a vehicle (Veh. Code, § 10851), because it is a lesser included offense of Penal Code section 487, subdivision (d), and that offense is eligible for resentencing to a misdemeanor under Penal Code sections 490.2 and 1170.18?  (This case was continued from the June calendar.)  (Third District Court of Appeal Justice Harry Hull, Jr., is the pro tem.)

In re Martinez:  Could defendant use a petition for recall of sentence under Penal Code section 1170.18 to request the trial court to reduce his prior felony conviction for transportation of a controlled substance to a misdemeanor in light of the amendment to Health and Safety Code section 11379?  (Second District, Division One, Court of Appeal Justice Jeffrey Johnson is the pro tem.)

People v. Wall:  This is an automatic direct appeal from a January 1995 judgment of death.  The court’s website does not list issues for such appeals.  (Second District, Division Three, Court of Appeal Justice Luis Lavin is the pro tem.)

City of San Buenaventura v. United Water Conservation:  (1) Do the District’s ground water pumping charges violate Proposition 218 or Proposition 26?  (2) Does the rate ratio mandated by Water Code section 75594 violate Proposition 218 or Proposition 26?  (Fourth District, Division One, Court of Appeal Justice Joan Irion is the pro tem.)  [Disclosure:  Horvitz & Levy filed an amicus brief in this case.]

Vasilenko v. Grace Family Church:  Does one who owns, possesses, or controls premises abutting a public street have 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.]

People v. Henriquez:  This is an automatic direct appeal from a June 2000 judgment of death.  The court’s website does not list issues for such appeals.  (Fifth District Court of Appeal Justice Herbert Levy is the pro tem.)

 

July 31, 2017

Supreme Court says affirmative defense isn’t an action or proceeding for attorney fee purposes, but a 4-3 majority awards fees anyway

In Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, the Supreme Court today holds a contract provision for attorney fees in a “legal action or any other proceeding” to enforce the contract does not permit an attorney fee award when the contract is raised as an affirmative defense rather than in a cross-complaint.  However, the court’s 4-3 opinion by Justice Ming Chin (concurred in by Chief Justice Tani Cantil-Sakauye, and Justices Kathryn Werdegar and Mariano-Florentino Cuéllar) finds a basis for an award in another part of the attorney fee provision, because the action against the defendants was “brought . . . because of an alleged dispute . . . in connection with any provision of” the contract.

Justice Leondra Kruger dissents, joined by Justices Carol Corrigan and Goodwin Liu.  She agrees with the majority that an affirmative defense is not a “legal action” or “proceeding,” but finds that interpreting the second part of the attorney fee provision to support a fee award “defies normal usage.”  The dissent says it is not succumbing to “the temptation to rewrite the parties’ contract for them.”

The court affirms the bottom line of the 2-1 decision of the First District, Division Two, Court of Appeal.  (Yes, the Court of Appeal was divided, too.)  However, the Court of Appeal’s reasoning — that an affirmative defense is a “legal action” or “other proceeding” — is rejected by all seven of the Supreme Court’s justices.  The high court also disapproves an opinion by the Second District, Division Three.

July 30, 2017

Ask not what the Supreme Court can do for the Ninth Circuit

The Ninth Circuit frequently exercises its option under rule 8.548 to ask for the California Supreme Court’s assistance in determining state law issues.  And the Supreme Court usually agrees to help.  The Ninth Circuit has sent four requests this year; the Supreme Court has granted three (here, here, and here) and one is still pending.

But the federal appeals court apparently doesn’t want to wear out its welcome.  Sometimes when it asks a question, it politely “recognize[s] that our certification request adds to the substantial caseload of the Court.”  Other times, however, it simply doesn’t ask at all, even though it might be a close call.  This restraint occurs more often than you’d think.

We noted a non-ask case four months ago.  Recently, there have been other such cases.  Just two days ago, in United States v. Martinez-Lopez, an en banc Ninth Circuit declined the pleas of three of its judges to send a question to the Supreme Court.  Similarly, last month, in First Resort, Inc. v. Herrera, a concurring judge wanted to ask for a Supreme Court decision on a California state law issue, but the two other panel judges didn’t go along.  And also last month, in Cooper v. Tokyo Electric Power Co., the court avoided ruling on an issue of California law that “may well require us to certify a question to the California Supreme Court.”

There might be a number of Ninth Circuit requests, but it could be worse.

July 28, 2017

Summary of July 26, 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 July 26, 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

Boling v. Public Employee Relations Board, S242034– Review Granted – July 26, 2017

In a published decision, Boling v. Public Employment Relations Board (2017) 10 Cal.App.5th 853, the Court of Appeal, Fourth District, Division One, annulled the Public Employment Relations Board’s (PERB) decision that the City of San Diego was obliged to “meet and confer” with the city employees’ union before a citizen-sponsored pension reform initiative could be placed on the ballot. The Court of Appeal held that (1) the city has no obligation to meet and confer before placing a qualified citizen-sponsored initiative on the ballot; (2) the reform initiative was not a de facto governing-body-sponsored ballot proposal under “statutory agency” principles that could have triggered the meet and confer obligations under the Meyers-Milias-Brown Act; (3) the mayor’s support of the initiative could not be imputed to the city council under the doctrine of actual authority for purposes of rendering the citizen-sponsored initiative a city council-sponsored initiative; (4) the mayor did not have apparent authority to act on behalf of the city council when proposing and campaigning for the citizen-proposed reform initiative; and (5) the city council did not ratify the mayor’s acts.

This case presents the following issues: (1) When a final decision of the Public Employment Relations Board under the Meyers-Milias-Brown Act (Gov. Code, § § 3500 et seq.) is challenged in the Court of Appeal, what standard of review applies to the Board’s interpretation of the applicable statutes and its findings of fact? (2) Is a public agency’s duty to “meet and confer” under the Act limited to situations in which the agency’s governing body proposes to take formal action affecting employee wages, hours, or other terms and conditions of employment?

Review Denied (with dissenting justices)

Manteca Unified School District v. Reclamation District No. 17, S242032– Review Denied [Werdegar, J., voting to grant review] – July 26, 2017

In a published decision, Manteca Unified School District v. Reclamation District No. 17 (2017) 10 Cal.App.5th 730, the Third District Court of Appeal reversed the trial court’s ruling that a school district was not exempt from paying assessments to a reclamation district. The Court of Appeal held that: (1) the trial court erred in declining to apply the constitutional mandate of Proposition 218 to the statutory exemption from assessments provided by Water Code section 51200; (2) the Right to Vote on Taxes Act required proof of “no special benefit” for the school district to continue to rely on the exemption from the reclamation district’s assessment authority.

Depublished

Broadway Victoria v. Norminton, Wiita & Fuster, S242266– Depublished Court of Appeal Opinion – July 26, 2017

In this legal malpractice action, in a published opinion, Broadway Victoria, LLC v. Norminton, Wiita & Fuster (2017) 10 Cal.App.5th 1185, the Court of Appeal, Second District, Division Five, affirmed the trial court’s grant of nonsuit on the plaintiff client’s breach of fiduciary duty claim and part of its legal malpractice claim. The Court of Appeal held that: (1) a breach of fiduciary duty claim is duplicative and should be dismissed if it arises from the same facts and seeks the same relief as a negligence claim for attorney malpractice; (2) the client’s breach of fiduciary duty claim against the attorneys was duplicative in the absence of supporting evidence to the contrary; and (3) the client’s evidence of breach of fiduciary duty was speculative so as to require that nonsuit be granted.  The Supreme Court ordered the opinion depublished.

July 28, 2017

“Why you should care about who will sit on California’s Supreme Court”

Bob Egelko writes in the San Francisco Chronicle that, as Governor Brown prepares “to make one of the most consequential appointments of his final term in office, a justice who could shift the ideological balance of the state Supreme Court,” Californians need to “get reacquainted with an institution that impacts the lives of most of the state’s residents.”  The piece is a sophisticated look at the court’s past and present.

It might be too late for Justice Kathryn Werdegar’s replacement to be appointed and confirmed in time to participate in the court’s next oral argument calendar, during the first full week of September.  But the Governor could still avoid an extended parade of pro tem justices by soon naming his pick.  After all, it’s been almost five months since Justice Werdegar announced her plans to retire.

July 28, 2017

Attorney fee opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC, the last undecided case from the early-May calendar.  (Briefs here; oral argument video here.)

Mountain Air raises these 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?

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

July 28, 2017

“California Supreme Court ruling bolsters bullet train foes”

The Associated Press reports that the precedent in yesterday’s Supreme Court Friends of the Eel River decision “ensures further legal complications for the planned $64 billion bullet train between Los Angeles and San Francisco.”

July 27, 2017

CEQA not preempted by federal railroad law for state-owned railroads

In a case that could end up in the U.S. Supreme Court, the California Supreme Court today holds that federal law does not preclude state public entity compliance with CEQA regarding a railroad project that the state owns.  The court’s 6-1 opinion in Friends of the Eel River v. North Coast Railroad Authority, by Chief Justice Tani Cantil-Sakauye, concludes that, although the federal ICC Termination Act of 1995 would not allow the state to impose CEQA regulations on a privately owned railroad, CEQA compliance by the state concerning its own rail line is not state regulation at all, but a permissible “act of self-governance on the part of the state.”  The state acting in accord with CEQA is operating within “a sphere of regulatory freedom enjoyed by owners” and is comparable to a private owner following its “internal corporate rules and bylaws” in guiding its “market-based decisions,” the opinion says.  The court finds that the federal law must allow “the state as owner [to] make its decisions based on its own guidelines rather than some anarchic absence of rules of decision.”

Justice Leondra Kruger signs the majority opinion, but also writes a separate concurrence.  She stresses it remains an open question whether “particular CEQA remedies might be preempted by the ICCTA to the extent the remedy is one that unreasonably interferes with the jurisdiction of the [federal] Surface Transportation Board, which has authorized service over the rail line in question.”

Justice Carol Corrigan dissents.  She says that finding “a law of general application” like CEQA to “be considered a ‘regulation’ of private activity, but not of public activity in the same sphere, appears to be unsupported by precedent” and it unfairly “forces the state to undertake a burden no private railroad owner must bear.”

The court reverses the First District, Division Five, Court of Appeal.

July 26, 2017

Filing tomorrow: opinion in CEQA preemption case possibly headed to SCOTUS

Tomorrow morning, the Supreme Court will file its opinion in Friends of the Eel River v. North Coast Railroad Authority, which was argued on the early-May calendar.  (Briefs here; oral argument video here.)

Eel River is the last undecided case of the three “environmental law week” matters.  (Opinions in the other two were filed two and three weeks ago.)  A law professor has identified the case as one that might end up in the U.S. Supreme Court.  That could explain the large number of amicus briefs the case has attracted.

Eel River raises these issues:  (1) Does the Interstate Commerce Commission Termination Act [ICCTA] (49 U.S.C. § 10101 et seq.) preempt the application of the California Environmental Quality Act [CEQA] (Pub. Res. Code, § 21050 et seq.) to a state agency’s proprietary acts with respect to a state-owned and funded rail line or is CEQA not preempted in such circumstances under the market participant doctrine (see Town of Atherton v. California High Speed Rail Authority (2014) 228 Cal.App.4th 314)?  (2) Does the ICCTA preempt a state agency’s voluntary commitments to comply with CEQA as a condition of receiving state funds for a state-owned rail line and/or leasing state-owned property?

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

July 25, 2017

Evening things out: the end of end-of-term calendar cramming

In the past, the Supreme Court would typically have significantly heavier oral argument calendars at the end of the term than during the rest of the year.  (E.g., here.)  Those calendars — in early-May, late-May, and June — come before the argument-less months of July and August.

Things changed in 2016-2017, however.  This year’s end-of-term calendars were considerably smaller than before.  (E.g., here.)  The change is expected to stay in place going forward.

But this doesn’t mean the court will be hearing fewer cases overall.  In fact, the court heard more cases this term than in 2015-2016.

The difference is the product of changes to the court’s internal procedures.  Jake Dear, the court’s chief supervising attorney, told At The Lectern that the court is now intentionally spreading things out for quality control purposes.  The court is equalizing not just its oral argument sessions, but its work in general.  Because cases are decided within 90 days of argument, heavy end-of-term calendars required much more time over the summer than usual to prepare opinions, leaving less time for the court to get cases ready for the next term’s initial calendars.  “The cupboards were kind of bare in the fall,” Dear said.  The uneven calendars also put stresses on the internal review process.

Within the next few weeks, the court should announce its September calendar.  Which cases and how many are on the calendar could be affected if the court is shorthanded because Justice Kathryn Werdegar’s replacement has not been named and sworn in; the court might want to avoid cases that could end in a 4-3 decision with a pro tem justice in the majority.  But, otherwise, look for a more even number of cases argued each month.

July 24, 2017

Supreme Court again increases trial court discretion to reject three-strikes resentencing petitions

For the second time this month, the Supreme Court has found broad superior court discretion to deny petitions for resentencing under Proposition 36, the Three Strikes Reform Act of 2012.  In People v. Estrada, the Supreme Court today holds that such a denial can be based on facts underlying a charged count that was dismissed according to a plea bargain, but “only if those facts also underlie a count to which the defendant pleaded guilty.”  The court’s unanimous opinion by Justice Mariano-Florentino Cuéllar concludes that, to determine whether the defendant was armed while committing his third strike offense, which would bar three-strikes relief, the superior court properly considered 16-year-old testimony at a preliminary hearing preceding the guilty plea.  The court states that “[p]recluding a court from considering facts not encompassed within the judgment of conviction would be inconsistent with the [Act’s] text, structure, and purpose.”

The court affirms the Second District, Division Eight, Court of Appeal.  It also disapproves a 2015 opinion by the Fourth District, Division Three.

July 24, 2017

Supreme Court expands preliminary hearing rights — and mootness doctrine — for parole violations

In People v. DeLeon, the Supreme Court today holds, as a matter of constitutional law, that parolees are still entitled to a preliminary hearing to assess probable cause of a parole violation, even after 2011 legislation transferred most parole revocation hearings from an administrative board to superior courts.  The court’s unanimous opinion by Justice Carol Corrigan recognizes the “legitimate institutional concern” of further burdening overworked and under-resourced superior courts, but concludes that the concern “cannot justify depriving a parolee of his right to due process of law.”

The court also finds that the potential future use of a parole violation against a defendant is not “a disadvantageous collateral consequence” that saves an appeal from mootness once the defendant has completed his jail term for the parole violation.  (Despite the mootness in this case, the court decides the substantive preliminary hearing issue because “[t]he issue [is] ‘likely to recur, might otherwise evade appellate review, and is of continuing public interest.'”)  The opinion further includes a detailed analysis of when the Legislature can amend a statute that has been enacted by initiative.

The court reverses the First District, Division Three, Court of Appeal.  It also disapproves 2017, 2015, and 2014 opinions by the Fourth District, Division Three.

July 22, 2017

Justice Liu co-authors “A Portrait of Asian Americans in the Law” [UPDATED]

Justice Goodwin Liu is the co-author of a report released this week that presents “a comprehensive portrait documenting the rise of Asian Americans in the law, their distribution across practice settings, and the challenges they face in advancing to the top ranks of the profession.”  The report — titled “A Portrait of Asian Americans in the Law” and released by the National Asian Pacific American Bar Association and Yale Law School — concludes, “Asian Americans have penetrated virtually every sector of the legal profession, but they are significantly underrepresented in the leadership ranks of law firms, government, and academia.”

Related:  Justice Liu is interviewed in The American Lawyer [subscription] in “Are Asian-Americans Fed Up With Law?”

Also related:  the Supreme Court has acknowledged its past discrimination against Asian-Americans and has attempted to make amends by symbolically granting two posthumous bar admissions in the last two years.  (Here and here.)

[July 23 update:

Justice Liu has an op-ed in today’s Sunday Los Angeles Times — “Asian Americans fill more lawyer jobs, but not at the top ranks.”  He writes, “It is a chicken-and-egg problem:  Given societal perceptions, it is difficult for many Asian Americans to envision themselves as leaders in law; without more Asian Americans becoming leaders, it is difficult to change perceptions.”

See also articles in the Washington Post (“Law schools are filled with Asian Americans.  So why aren’t there more Asian judges?”) and the ABA Journal (“Asian-Americans are apparently losing interest in law school; report shows outsize enrollment drop”).]

July 22, 2017

Justice Cuéllar’s week at Ninth Circuit conference, Comic-Con [UPDATED]

The Recorder [subscription] reports on Justice Mariano-Florentino Cuéllar’s participation earlier this week in a panel discussion about artificial intelligence and the law at the annual Ninth Circuit Judicial Conference, in San Francisco.  “Cuéllar was critical of a book by philosopher Nick Bostrom about the existential threat to humanity posed by self-aware machines.  But the justice also laid out what he said were the promises and risks presented by AI, in the realm of law and beyond.”

In somewhat related news, Justice Cuéllar was scheduled to appear yesterday at Comic-Con in San Diego at a program called “Judges on Star Wars.”  Sharing the panel with, among others, Ninth Circuit Judge John Owens, Cuéllar was supposed to help analyze these weighty legal issues:  “Is the dark side an addiction or a choice for Kylo Ren?  What are the civil rights of droids?  Did interrogating Bodhi Rook with the Bor Gullet violate Rook’s civil rights?”  This is not Cuéllar’s first appearance at Comic-Con.  Last year, he was there to talk about Star Trek.  That yielded a memorable photo.

[July 25 update:  In a letter published yesterday in The Recorder [subscription], Justice Cuéllar writes to “clarify [his] views on the potential risks posed by ‘superintelligence’ discussed in philosopher Nicholas Bostrom’s influential book.”]

July 21, 2017

Summary of July 19, 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 July 19, 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

In re A.N., S242494 – Review Granted – July 19, 2017

In a published decision, In re A.N. (2017) 11 Cal.App.5th 403, the Court of Appeal, Second District, Division Six, affirmed the trial court’s order declaring a  juvenile a habitual truant after she missed numerous days of school and charging her a $50 fine.  The court held that the trial court properly exercised jurisdiction because neither a juvenile’s prior failure to respond to a School Attendance Review Board (SARB) directive, nor the issuance of a fourth truancy report, were required under Education Code section 48264.5.

The questions presented are as follows: (1) Is a School Attendance Review Board proceeding or truancy mediation process required before juvenile court proceedings can be instituted to declare a juvenile a habitual truant? (2) Does Education Code section 48264.5 require the issuance of a fourth truancy report before commencing such a proceeding?

Review Denied (with dissenting justices)

None.

Depublished

None.

July 21, 2017

Parole revocation, three strikes opinions filing Monday

On Monday morning, the Supreme Court will file its opinions in People v. DeLeon and People v. Estrada, which were both argued on the early-May calendar.  (Briefs for both cases here; DeLeon oral argument video here; Estrada oral argument video here.)

De Leon raises this question:  In light of the changes made to the parole revocation process in the 2011 realignment legislation (Stats. 2011, ch. 15; Stats. 2012, ch. 43), is a parolee entitled to a probable cause hearing conducted according to the procedures outlined in Morrissey v. Brewer (1972) 408 U.S. 471 before parole can be revoked?

In Estrada, the court will decide whether the trial court improperly relied on the facts of counts dismissed under a plea agreement to find defendant ineligible for resentencing under the provisions of Proposition 36.

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

July 20, 2017

Dependency court can take at-risk children regardless of parental fault

Declining “to adopt an approach that would automatically place an incorrigible child in the delinquency system pipeline,” the Supreme Court today holds in In re R.T. that a statute allowing a court to exercise dependency jurisdiction over a child at risk because of “the failure or inability of his or her parent or guardian to adequately supervise or protect the child” can apply even if the parent was not to blame for the lack of supervision or protection.  The court’s unanimous opinion by Justice Ming Chin comes in the case of a teenager whose mother and grandparents were unable to control her, despite what the court says were the mother’s “concerted (and at times desperate) efforts to protect and discipline” her daughter.  The court finds that the history of a 1987 bill “makes clear that the Legislature did not intend to impose a parental fault requirement.”

Justice Goodwin Liu signs the court’s opinion, but also writes separately.  He notes that “simply being found ‘inadequate’ as a parent, even when the parent is not at fault, can carry a painful stigma,” and he suggests “[t]he Legislature may wish to revisit this issue and, if appropriate, amend the statute in a manner that clarifies the proper balance of competing values in difficult cases like this one.”

Resolving a split of authority, the court affirms the Second District, Division Two, Court of Appeal, and disapproves a 2010 opinion by the Second District, Division One.  It is also critical of language in a 1991 opinion by the First District, Division Two.

July 20, 2017

Supreme Court unanimously affirms death sentence after second trial for Long Beach gang murders

The Supreme Court today affirms the death penalty in People v. Jones for two 1996 gang payback murders committed in Long Beach.  The judgment came in a second trial after a deadlocked jury in the defendant’s first trial.  The court’s unanimous opinion is by Justice Leondra Kruger.

July 19, 2017

Dependency, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in In re R.T. and People v. JonesR.T. was argued on the early-May calendar.  (Briefs here; oral argument video here.)  The Jones opinion will be the first in a case argued on the late-May calendar.  (Briefs here; oral argument video here.)

The R.T. case raises the issue whether Welfare and Institutions Code section 300, subdivision (b)(1), authorizes dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child.

Jones is an automatic direct appeal from a November 1998 death penalty judgment.

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

July 17, 2017

Summary of July 12, 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 July 12, 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

Gerard v. Orange Coast Memorial Medical Center, S241655– Review Granted– July 12, 2017

This is an action by health care workers sued their hospital employer for alleged Labor Code violations. It presents the following questions:  (1) Did Senate Bill 327 constitute a change in the law or a clarification in the law? (2) Is the Industrial Wage Commission (IWC) Wage Order No. 5, section 11(D) partially invalid to the extent it authorizes health care workers to waive their second meal periods on shifts exceeding 12 hours? (3) To what extent, if any, does the language of Labor Code section 516 regarding the “health and welfare of those workers” affect the analysis? In a published opinion, Gerard v. Orange Coast Memorial Medical Center (2017) 9 Cal.App.5th 1204, the Court of Appeal, Fourth District, Division Three, held the IWC wage order was valid.

Voris v. Lampert, S241812–Review Granted– July 12, 2017

This case presents the following question: Is conversion of earned but unpaid wages a valid cause of action?  In an unpublished opinion, Voris v. Lampert, Case No. B265747, the Court of Appeal, Second District, Division Three, concluded that unpaid wages do not give rise to a cause of action for conversion.

In re Priscilla A., S241995–Review Granted and Held– July 12, 2017

In this juvenile dependency case, a father challenged the juvenile court’s jurisdiction and disposition orders.  The Supreme Court ordered briefing deferred pending decision in In re R.T., S226416, which presents the following issue: Does Welfare and Institutions Code section 300, subdivision (b)(1), authorize dependency jurisdiction without a finding that parental fault or neglect is responsible for the failure or inability to supervise or protect the child?

Wilson v. Cable News Network, Inc., S239686–Briefing Ordered–July 12, 2017

The Court ordered briefing in this case, in which briefing previously had been deferred pending decision in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057. This case presents the following issue: In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of an anti-SLAPP motion to strike (Code of 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)

None.

Depublished

Applied Medical Corporation v. Thomas, S241879– Depublished Court of Appeal Opinion– July 12, 2017

After defendant was removed from the board of plaintiff corporation, the corporation exercised its right to repurchase shares of its stock issued to defendant. The defendant objected to the repurchase price. The issues on appeal were: (1) whether the trial court erred in holding the corporation’s conversion claim failed, and (2) whether the trial court correctly ruled the corporation’s fraud claims were barred by the applicable statute of limitations.  The Court of Appeal, First District, Division Five, held in a published opinion, Applied Medical Corporation v. Thomas (2017) 10 Cal.App.5th 927, that the trial court did err on issue (1) and that such a claim may be based on either ownership or the right to possession at the time of conversion. The court held the corporation’s claims were barred by the applicable statute of limitations.  The Supreme Court ordered the opinion depublished.

July 17, 2017

Supreme Court allows Medical Board warrantless access to patient prescription drug records

For the second time in a week, the Supreme Court today recognizes limits to the state constitution’s right to privacy.  In Lewis v. Superior Court, the court holds that the Medical Board of California — in its investigation of a physician — did not violate patient privacy rights by accessing without a warrant, subpoena, or consent, information about the physician’s patients from a state prescription drug database.  The Medical Board’s investigation led to charges against the physician of prescribing dangerous drugs without an appropriate examination and of excessive prescribing.

The court’s unanimous opinion by Justice Goodwin Liu allows the physician to assert his patients’ privacy rights in the administrative proceeding against him, but finds those rights were not violated.  The court explains, “even assuming the Board’s actions constituted a serious intrusion on a legally protected privacy interest, its review of these records was justified by the state’s dual interest in protecting the public from the unlawful use and diversion of a particularly dangerous class of prescription drugs and protecting patients from negligent or incompetent physicians.”  However, the result could be different for a patient’s medical records, which, the court says, “contain far more sensitive information than do prescription records.”

Justice Liu, joined by Justice Leondra Kruger, writes a concurring opinion to the majority opinion he authored.  The separate opinion states what the majority only assumes arguendo — that patients have a privacy right in their prescription records, albeit a right that can be outweighed, as it is in this case.  Justice Liu concludes that “[p]atients retain a reasonable expectation of privacy in prescription drug records that can reveal their medical conditions” and that “[w]here, as here, one government agency discloses patients’ sensitive medical information to another, the privacy intrusion cannot be dismissed as trivial.”

The court affirms the Second District, Division Three, Court of Appeal.

July 14, 2017

“California Supreme Court Moves to Make Bar Exam Easier to Pass”

The New York Times reports on the Supreme Court’s recent move to, among other things, itself set the passing score for the bar exam.  According to the Times, “For years, California had set the threshold for passing the exam higher than any other state but Delaware.”

This is another reminder that the court does more than just decide cases.  (See also here, for example.)

July 14, 2017

Patient privacy opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Lewis v. Superior Court, which was argued on the early-May calendar.  (Briefs here; oral argument video here.)

Just yesterday, the court opined about privacy rights.  It will do so again in Lewis.  The case raises these questions:  (1) Do a physician’s patients have a protected privacy interest in the controlled substance prescription data collected and submitted to the California Department of Justice under Health and Safety Code section 11165?  (2) If so, is disclosure of such data to the Medical Board of California justified by a compelling state interest?

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

July 13, 2017

San Diego EIR’s climate change analysis is adequate

In Cleveland National Forest Foundation v. San Diego Association of Governments, a 6-1 Supreme Court today holds that, although an environmental impact report had to analyze whether the subject project — a regional development plan for the San Diego area intended to guide its transportation infrastructure from 2010 to 2050 — would significantly increase greenhouse gas emissions, it did not need to “explicitly engage in an analysis of the consistency of projected 2050 greenhouse gas emissions with the goals” in a 2005 executive order by Governor Schwarzenegger of reducing greenhouse gas emissions in California to 80 percent below 1990 levels by the year 2050.  The court’s opinion by Justice Goodwin Liu nonetheless concludes that’s not the end of the story — California’s environmental statutes “require[ ] public agencies . . . to ensure that such analysis stay in step with evolving scientific knowledge and state regulatory schemes.”

Justice Mariano-Florentino Cuéllar dissents.  He finds “the EIR manages to occlude the elephant in the room — that the plan was associated with a major projected increase in greenhouse gas emissions, diverging sharply from emission reduction targets reflecting scientific consensus.”  Justice Cuéllar concludes, “If [the San Diego planning agency] plans to permit hundreds of billions of dollars to be spent in pursuit of a plan that departs so starkly from scientific and political consensus about the emissions decreases needed to avert climate catastrophe, it must explain this divergence in sufficient detail for the public to recognize the long-term harm that will unfold in its name.”

The court reverses a 2-1 opinion from the Fourth District, Division One, Court of Appeal.

July 13, 2017

Retail worker plaintiff can shop for information in PAGA action

In Williams v. Superior Court, the Supreme Court today holds a Marshalls employee plaintiff in a representative action seeking labor law penalties under the Private Attorneys General Act has broad discovery rights.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes the plaintiff should have the same ability to obtain information about other employees whom he is representing as do plaintiffs in non-PAGA class actions.

The court finds unconvincing over-breadth, undue burden, and constitutional privacy objections to the discovery requests.  It says that “[t]he Legislature was aware that establishing a broad right to discovery might permit parties lacking any valid cause of action to engage in ‘fishing expedition[s],’ to a defendant’s inevitable annoyance,” but “[i]t granted such a right anyway.”

The opinion also disagrees with Court of Appeal opinions that had conditioned the discovery of all “facially private information” on a showing of “a ‘”compelling state interest”‘ . . . or ‘compelling need.'”  The court clarifies that “[o]nly obvious invasions of interests fundamental to personal autonomy must be supported by a compelling interest.”

The court reverses the Second District, Division One, Court of Appeal.  As to the privacy issue, it also disapproves a whopping 23 Court of Appeal opinions.

July 12, 2017

“9th Circ. May Steer Apple Bag Check Row To Calif. Justices”

Law360 [subscription] reports that one member of a Ninth Circuit panel said at oral argument this week “that the California Supreme Court should weigh in on whether Apple must pay a certified class of store employees for time spent checking their personal bags.”  Video of the oral argument is here.

This wouldn’t be the first time the Ninth Circuit has asked for the Supreme Court’s help on state employment law issues.  (E.g., see here and here.)  It also wouldn’t be the first time a judge’s oral argument statements preceded a Ninth Circuit request to the Supreme Court.  (E.g., here and here.)

July 12, 2017

Greenhouse gas, PAGA discovery opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Cleveland National Forest Foundation v. San Diego Association of Governments and Williams v. Superior Court, which were both argued on the early-May calendar.  (Briefs here; oral argument videos here.)  Lots of amicus briefs in both cases.

Cleveland National Forest is the second of three “environmental law week” cases.  (The opinion in the first was filed last week.)  It will decide whether the environmental impact report for a regional transportation plan must include an analysis of the plan’s consistency with the greenhouse gas emission reduction goals reflected in Executive Order No. S-3-05 to comply with the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.).

Williams raises these questions:  (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.) entitled to discovery of the names and contact information of other “aggrieved employees” at the beginning of the proceeding or is the plaintiff first required to show good cause in order to have access to such information?  (2) In ruling on such a request for employee contact information, should the trial court first determine whether the employees have a protectable privacy interest and, if so, balance that privacy interest against competing or countervailing interests, or is a protectable privacy interest assumed?  (See Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1; Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360.)

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

July 10, 2017

Former Supreme Court Justice Janice Brown rumored to be taking senior status as a federal appeals court judge

The Wall Street Journal reports that Judge Janice Rogers Brown of the federal D.C. Circuit Court of Appeals will be assuming senior status, creating a vacancy on that court.  Before she was Judge Brown, she was Justice Brown of the California Supreme Court from 1996 to 2005.  Judge Brown was a potential U.S. Supreme Court pick.

July 10, 2017

Superior court protocol limiting detention of incompetent minors is not binding, but a properly adopted one could be

In In re Albert C., the Supreme Court today limits a limit that the Los Angeles County Superior Court tried to impose on the detention of minors found incompetent to stand trial.  The court’s unanimous opinion by Justice Goodwin Liu holds that “[l]ike adults, juveniles have a due process right to be free from indefinite commitment if found incompetent to stand trial” (an incompetent person must at some point be released or held under a civil commitment), but concludes that a blanket protocol adopted by the superior court limiting to 120 days the detention of incompetent minors does not define due process.  The opinion explains that “neither a statute nor a local protocol can supplant the duty and prerogative of courts to independently interpret constitutional principles.”

Just because this particular protocol didn’t establish a constitutional standard, however, doesn’t mean such a policy couldn’t be binding.  The court finds that, “[b]ecause the Protocol was not adopted pursuant to any mechanism vesting it with legal authority, a violation of the Protocol does not, in and of itself, constitute grounds for relief,” but also says, “A protocol, local rule, or state statute may adopt a detention policy that is more protective of a juvenile’s rights than” constitutional case law, which doesn’t “require[ ] any jurisdiction to detain an incompetent minor at all.”

The court affirms the Second District, Division Five, Court of Appeal, although it does disagree with one of the Court of Appeal’s conclusions.  It also disapproves a 2013 decision by Division Seven of the Second District.

July 9, 2017

When can Governor Brown name Justice Werdegar’s replacement?

It’s been four months since Justice Kathryn Werdegar announced her retirement.  There’s been speculation about whom Governor Brown will appoint to take Justice Werdegar’s seat, but not as much discussion about when an appointment will be made.

Will there be a replacement on the Supreme Court before the court’s next oral argument calendar, which will take place during the first full week of September?  Or will there be a new parade of pro tem justices from the Court of Appeal to temporarily fill the vacancy, as there was following Justice Joyce Kennard’s retirement three years ago?

A lot depends, of course, on when the Governor is ready to name the new justice.  But there’s also the issue of when he has the authority to make an appointment.

Justice Werdegar may have announced her retirement a while ago, but it will not be effective until the end of next month.  The constitution provides that “[t]he Governor shall fill vacancies in [the Supreme Court] by appointment” (emphasis added) and that the appointment “is effective when confirmed by the Commission on Judicial Appointments.”

There’s no vacancy now.  Can the Governor make — and the Commission confirm — an appointment to fill an impending vacancy?  If not, then Governor Brown will have to put his appointment on hold until after August 31, and the court will start its new term short one permanent justice.

However, an almost-40-year-old Court of Appeal opinion indicates that there’s no need to wait.  In that case, concerning a municipal court seat, the court held, “unless expressly forbidden by statute, the Governor is empowered to make an appointment to judicial office to fill an impending vacancy, provided he or she is still in office at the time vacancy occurs and the commission becomes effective.”  (Morrison v. Michael (1979) 98 Cal.App.3d 507, 514.)

It would be better to have a full-strength Supreme Court come September, and there doesn’t appear to be any legal impediment to Governor Brown making that happen.

July 7, 2017

Juvenile competency opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in In re Albert C., which was argued on the early-May calendar.  (Oral argument video here; briefs here.)

Albert C. raises these issues:  (1) Did the juvenile court violate minor’s due process rights by detaining him well past the 120-day limit established in the Los Angeles County Superior Court Juvenile Division’s “Amended Competency to Stand Trial Protocol” (Protocol), without evidence of progress toward attaining competency?  (2) Does a violation of the Protocol establish a presumption of a due process violation?

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

July 7, 2017

No conference held the week of July 3, 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.

July 7, 2017

“The Journey and Jurisprudence of California Supreme Court Justice Stanley Mosk”

The Orange County Bar Association is hosting a tribute on July 27 to the late California Supreme Court Justice Stanley Mosk.  They’ve lined up a great panel for the program:  Justice Laurence Rubin of the Second District, Division Eight, Court of Appeal, and, more significantly for the event, a former Justice Mosk law clerk; and Professor Gerald Uelmen of Santa Clara University School of Law, who co-authored a Mosk biography.

July 6, 2017

Waives, not waves, damage seawall

Back to its unanimous ways after an unusual spate of divided opinions (here, here, here, here, and here), the Supreme Court in Lynch v. California Coastal Commission today rules against owners of oceanfront properties who wanted to replace a storm-damaged seawall without having to comply with two conditions imposed by the California Coastal Commission.  The owners were granted a permit subject to the conditions and then completed construction while their court challenge to the conditions was pending.  The court’s 7-0 opinion by Justice Carol Corrigan holds that “the owners forfeited their challenge because they accepted the benefits the permit conferred.”

Disclosure:  the heading for this post is not quite right.  Besides the fact that “waive” probably isn’t an acceptable noun, there wasn’t really a waiver in this case.  The court’s opinion instructs that “the more accurate term to describe the effect of plaintiffs’ actions is equitable forfeiture” and it explains, “Although the distinctions between waiver, estoppel, and forfeiture can be significant, the terms are not always used with care.”  The heading is intentionally careless because it’s catchier that way.

The court affirms a 2-1 decision from the Fourth District, Division One, Court of Appeal.

July 5, 2017

Coastal development opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Lynch v. California Coastal Commission.  (Oral argument video here; briefs here.)   This will be the first decision in the early-May calendar cases.

Lynch is one of the three “environmental law week” cases.  It raises these questions:  (1) Did plaintiffs, who objected in writing and orally to certain conditions contained within a coastal development permit approved by defendant California Coastal Commission and who filed a petition for writ of mandate (Code Civ. Proc., § 1094.5) challenging those conditions, waive their right to challenge the conditions by subsequently executing and recording deed restrictions recognizing the existence of the conditions and constructing the project as approved?  (2) Did the permit condition allowing plaintiffs to construct a seawall on their property, but requiring them to apply for a new permit in 20 years or to remove the seawall, violate Public Resources Code section 30235 or the federal Constitution?  (3) Were plaintiffs required to obtain a permit to reconstruct the bottom portion of a bluff-to-beach staircase that had been destroyed by a series of winter storms, or was that portion of the project exempt from permitting requirements pursuant to Public Resources Code section 30610, subdivision (g)(1)?

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

July 3, 2017

What happens after review to opinions that have remained published pending review?

Thirteen months ago, a Supreme Court rules change meant that granting review in a case no longer automatically depublishes the case’s Court of Appeal opinion (rule 8.1105(e)(1)(B)), but, pending review, the opinion loses its precedential effect (rule 8.1115(e)(1) [opinion “has no binding or precedential effect, and may be cited for potentially persuasive value only”].)

The rule also provides that the loss of precedential effect might be only temporary.  After a Supreme Court decision, unless the court orders otherwise, “a published opinion of a Court of Appeal in the matter, and any published opinion of a Court of Appeal in a matter in which the Supreme Court has ordered review and deferred action pending the decision, is citable and has binding or precedential effect, except to the extent it is inconsistent with the decision of the Supreme Court or is disapproved by that court.”  (Rule 8.1115(e)(2).)

In most cases, application of the post-review rule should be straightforward.  For example, a published Court of Appeal opinion in a grant-and-hold case that is consistent with the Supreme Court’s decision two months ago in the lead opinion has likely been resurrected to precedential status.

Some cases might get a bit tricky, however.  Take today’s decision in People v. Valencia.  The Supreme Court notes that its opinion “effectively overrules the majority decision” in a grant-and-hold case, but the court “assum[es], without deciding,” the accuracy of the majority decision on a subsidiary point.  So, apparently, although the Court of Appeal majority decision’s holding is no longer of value, lower courts and counsel will be able to cite the decision’s subsidiary point as precedent with the notation, “overruled on other grounds in People v. Valencia.”  Unless, of course, the Supreme Court affirmatively orders the Court of Appeal opinion depublished, which it still can do.  In any event, it’s a good reminder that, under the new rules, the impact of a Court of Appeal’s opinion — and of different parts of the opinion — in a review-granted case can change.

July 3, 2017

4-3 Supreme Court narrows resentencing opportunities under Three Strikes reform initiative

In People v. Valencia (consolidated with People v. Chaney), a 4-3 Supreme Court nixes the chances of two felons to reduce third-strike sentences imposed before California voters approved Proposition 36, the Three Strikes Reform Act of 2012.  The law allows for resentencing unless the superior court finds doing so “would pose an unreasonable risk of danger to public safety.”  Proposition 36 didn’t define the disqualifying “unreasonable risk,” but Proposition 47 — 2014’s Safe Neighborhoods and Schools Act — did, classifying it as an unreasonable risk of the future commission of eight specific types of serious felonies.  The court’s opinion by Chief Justice Tani Cantil-Sakauye holds the Proposition 47 definition doesn’t limit a superior court’s discretion to deny a sentence reduction under Proposition 36, even though Proposition 47 specifically provides that its definition is to be “used throughout this Code.”

This is another let’s-read-statutory-language-in-context opinion.  (See e.g., here and here.)  The court concludes that reading “used throughout this Code” expansively would be “inconsistent with Proposition 47’s uncodified findings, declarations, purpose, and intent.”  It says the voters who passed Proposition 47 couldn’t have intended the “unreasonable risk” definition to apply to Proposition 36, especially when neither the Attorney General nor the Legislative Analyst gave those voters a heads-up as to that possible effect.

There are three separate opinions.

Justice Leondra Kruger writes a concurring opinion, which is signed by Justices Ming Chin and Carol Corrigan, all three of whom sign the Chief Justice’s majority opinion.  Besides discussing additional statutory interpretation principles, Justice Kruger expresses concern about initiative drafters being able to sneak stuff past the voters, or, as she less colloquially puts it, “To give dispositive effect to an oblique reference to an entire statutory code, in the face of considerable evidence suggesting the intended scope of the statute is materially narrower, would undoubtedly encourage drafters in future cases to deploy similarly oblique references to hide the true scope of proposed legislation from the electorate.”  She also “recognize[s] the practical reality that voters are sometimes asked to vote on statutory language that is not drawn with the precision one might hope for.”

Justices Goodwin Liu and Justice Mariano-Florentino Cuéllar write their own dissents, and they sign each others opinions.  Justice Kathryn Werdegar signs both dissents, too.  Justice Liu says the court historically construed the pre-Proposition 36 Three Strikes law “in accordance with its plain meaning, . . . regardless of whether the text, history, or ballot materials addressed the particular application of the statute at issue” and the contrary way of interpreting Proposition 47 is a “turnabout [that] is as unorthodox in its methodology as it is unsettling in its implications for the initiative process and the limited role of courts in interpreting statutes.”  He says the majority opinion “crosses the line from statutory interpretation to judicial legislation.”  He is alarmed that the majority’s construction of the law depends in part on the assumption the voters didn’t know what the initiative language meant:  “If we can rewrite statutes on the ground that the voters were not aware of what they were enacting, there will be no end to the mischief that courts and litigants can inflict on the initiative process.”  Similarly, Justice Cuéllar states that courts should operate on the premise that “the electorate must take a considerable measure of responsibility in enacting complicated laws.”

The court affirms the Third and Fifth District Courts of Appeal.  It also “effectively overrules” a 2-1 2016 Sixth District opinion.

July 3, 2017

Use of dead boyfriend’s confession might void special circumstances murder conviction

In People v. Hopson, a divided Supreme Court today finds Sixth Amendment confrontation error in admitting as impeachment evidence against a murder defendant the confession of her boyfriend who committed suicide several weeks after confessing.  The court’s opinion by Justice Leondra Kruger concludes the constitution was violated because “an accomplice’s confession implicating the defendant was used as substantive evidence of her role in the crime, even though she had no opportunity to test his reliability through cross-examination.”

There is no reversal of the conviction and life-without-parole sentence, however.  At least not yet.  The court instead directs the Court of Appeal — which had found no constitutional impropriety — to determine whether the error was prejudicial, necessitating a new trial.

Chief Justice Tani Cantil-Sakauye (joined by Justice Kathryn Werdegar) dissents, contending that the defendant waived her confrontation right and that, under the majority opinion, “defendants would be shielded from incrimination by an accomplice’s confession to police while simultaneously being allowed to attack with impunity the credibility and character of that accomplice.”  The Chief Justice also concludes any error was harmless beyond a reasonable doubt.

Besides criticizing the dissent’s reasoning on the merits, the majority says that the dissent’s theory for admission of the confession “conducts the parties’ litigation for them” because the Attorney General never advanced the theory, and that there is no reason to deviate from the court’s practice of not “decid[ing] cases on grounds the parties have neither briefed nor argued.”  The dissent calls it irrelevant that the Attorney General didn’t brief the issue, because “it is defendant’s claim on appeal that the prosecutor used [the] confession for its truth, and it is her burden to prove the existence of such error.”

The court reverses the Fourth District, Division One, Court of Appeal.