April 24, 2017

Habeas petition, not sentence recall, is proper way to challenge juvenile LWOP sentence

In In re Kirchner, the Supreme Court today holds a prisoner can use a habeas corpus petition to challenge a life-without-parole sentence for a murder he committed 24 years ago when he was 16.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes that the prisoner need not use a different, “selective and qualified” procedure — seeking to recall his sentence — because that is not an adequate remedy for analyzing whether a juvenile life sentence meets certain constitutional standards specified in a 2012 U.S. Supreme Court decision.

The court reverses the Fourth District, Division One, Court of Appeal.  Interestingly, a different panel of the same appellate court subsequently disagreed with the opinion of the panel in this case, and one Court of Appeal justice concurred in both opinions.  The Supreme Court granted review in that other case also.  In light of its opinion today, the court will likely dismiss review in the later case in a few months and leave that case’s opinion published.

April 21, 2017

Summary of April 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 April 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

Salazar v. Superior Court, S240247– Review Granted and Held – April 19, 2017

The Supreme Court granted review after the Court of Appeal, Second District, Division Eight, summarily denied a petition for writ of mandate in Salazar v.Superior Court (Intermodal Bridge Transport), B280525.  The Court ordered briefing deferred pending its decision in Williams v. Superior Court, S227228, which will be argued on May 4.

Williams presents the following issues: (1) Is the plaintiff in a representative action under the Labor Code Private Attorneys General Act of 2004 (PAGA) (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.)

Review Denied (with dissenting justices)

None.

Depublished

None.

April 21, 2017

Juvenile LWOP opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in In re Kirchner, which was argued on the February calendar.  The case involves an issue of continuing interest to the Supreme Court — lengthy sentences for crimes committed by juveniles.

In Kirchner, the court is set to answer this question:  When a juvenile offender seeks relief from a life-without-parole sentence that has become final, does Penal Code section 1170, subdivision (d)(2), which permits most juvenile offenders to petition for recall of a life-without-parole sentence imposed pursuant to Penal Code section 190.5 after 15 years, provide an adequate remedy under Miller v. Alabama (2012) 567 U.S. ___ [132 S.Ct. 2455], as recently construed in Montgomery v. Louisiana (2016) 577 U.S. ___ [136 S.Ct. 718]?

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

April 21, 2017

Ninth Circuit sends consumer loan/UCL question to Supreme Court [Updated]

Two days ago, the Supreme Court dismissed the request of one federal appeals court — the Second Circuit — for an answer to a state law question.  (The case settled after the Supreme Court had agreed to answer the question.)  Today, the Ninth Circuit sends a possible replacement.

The Ninth Circuit is asking the Supreme Court to answer a question regarding consumer loans and California’s Unfair Competition Law.  The issue in De La Torre v. CashCall, Inc., says the federal appeals court, “is whether the interest rates on consumer loans of $2500 or more that are governed by California Finance Code § 22303, which provides no interest rate limitations on such loans, can be deemed unconscionable under California Finance Code § 22302 and thus be the predicate for a private cause of action under the California Unfair Competition Law (‘UCL’).”  The case before the Ninth Circuit is a class action alleging consumer loans with interest rates of 90 percent or higher.

The Supreme Court should decide by mid-June — give or take — whether it will answer the Ninth Circuit’s question under rule 8.548.  The court isn’t required to answer, but it usually does.  Going back five years, it has turned down federal appellate courts just once in the last 16 requests (not including another pending request), and even then it wasn’t really a denial.

[April 24 update:  The Supreme Court today docketed the De La Torre case.]

April 19, 2017

“California chief justice: The courthouse is not the place for immigration enforcement” [Updated]

In a Washington Post op-ed, Chief Justice Tani Cantil-Sakauye today continues her advocacy for keeping federal immigration agents out of California’s courthouses.  (Related:  here, here, here, here, here, and here.)

Speaking as “a former prosecutor, a judge and the wife of a retired police officer,” the Chief Justice agrees with federal officials “that law-enforcement officials strive to ‘perform their duties with the highest degree of professionalism and public service,’” but she disagrees with them “on where that enforcement should occur.”  She says that “immigration arrests, or the fear of arrests at or near courthouses, disrupt court activities and the lives of those seeking justice” and she worries that “both documented and undocumented immigrants will no longer cooperate with state and local law-enforcement agencies; crimes or civil wrongs will go unreported and communities will live in fear.”

The Post identifies Cantil-Sakauye as “the chief justice on the California state Supreme Court.”  Regarding this issue, however, she is speaking not as the head of the Supreme Court, but as the leader of California’s judicial branch of government.

[Update:  An additional “related” link is added above.  Also, a recent New Yorker piece — “The Trump Era Tests the True Power of Sanctuary Cities” — mentions the Chief Justice’s letter last month, which complained of courthouse immigration arrests, and the administration’s response to the letter.  It discusses various courthouse arrests around the country, including one where ICE agents “followed a woman into a court where she was seeking a protective order against an abusive boyfriend.”  The Chief Justice has characterized the agents’ conduct in general as “stalking.”]

April 17, 2017

Supreme Court affirms eight-year-old death sentence despite reversal of one special circumstances finding

The Supreme Court today upholds the death penalty in People v. Becerrada for the murder of a woman who was pressing a rape charge against the defendant.  The court’s unanimous opinion by Justice Ming Chin reverses one of three special circumstances findings — the one for lying in wait — but otherwise affirms the judgment, concluding there was “‘no reasonable possibility'” that the erroneous lying-in-wait finding affected the jury’s penalty phase verdict.

The judgment in Becerrada is only a little over eight years old.  “Only” is accurate because the case is at the short end of the temporal spectrum for deciding automatic, direct appeals in death penalty cases.  The court has in the past issued opinions eight years after judgment — and even just six years after judgment — but the norm is considerably longer.  More typical is the last death penalty decision before Becerrada, which was filed more than 15 years after judgment, or the last argued automatic appeal — heard on the March calendar — which is from an 18-year-old judgment.  This gives an idea of how death penalty appeals would swamp the Supreme Court if the court rejects the pending challenge to the five-year deadline that Proposition 66 imposes.

April 14, 2017

Summary of April 12, 2017 conference report for civil cases

Summary of April 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 April 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

Cal Fire Local 2881 v. California Public Employees’ Retirement System, S239958 – Review Granted – April 12, 2017

In a published decision, Cal Fire Local 2881 v. California Public Employees’ Retirement System (2016) 7 Cal.App.5th 115, the Court of Appeal, First District, Division Three, affirmed the judgment in an action for writ of administrative mandate.  Plaintiff firefighters had sought to compel defendant’s compliance with Government Code section 20909 (section 20909), a law that provides eligible public employees the option to purchase at cost up to five years of nonqualifying service credit (sometimes referred to as “airtime”).

This case presents the following issues: (1) Was the option to purchase additional “airtime service credits” pursuant to section 20909 a vested pension benefit of public employees enrolled in CalPERS?  (2) If so, did the Legislature’s withdrawal of this right through the enactment of the Public Employees’ Pension Reform Act of 2013 (PEPRA) (Gov. Code, §§ 7522.46, 20909, subd. (g)), violate the contracts clauses of the federal and state Constitutions?

Review Denied (with dissenting justices)

Rivera v. Foster Farms, S239737 – Review Denied (with dissenting justices) – April 12, 2017

Plaintiff and her husband sued defendant Foster Farms asserting that plaintiff’s bacterial infection, and thus her injuries from Guillain-Barré syndrome, were attributable to Foster Farms chicken she ate.  Following trial, the 11-member jury returned a special verdict finding by eight to three that defendant’s chicken was not the cause of plaintiff’s bacterial infection.

In an unpublished opinion, Rivera v. Foster Farms (Dec. 19, 2016, B264137) 2016 WL 7340021 [nonpub. opn.], the Court of Appeal, Second District, Division Five, held that the trial court’s jury selection process did not deviate from proper procedure and that several jurors did not engage in misconduct warranting reversal.  The court also held that the trial court did not abuse its discretion in excluding evidence of (1) Salmonella contamination in defendant’s facilities, and (2) inspection reports citing defendant for noncompliance with federal agricultural standards governing chicken processing, and that, in any event, the exclusion of this evidence was not prejudicial.

Justices Werdegar and Chin were of the opinion the petition should be granted.

Depublished

None.

April 14, 2017

Death penalty opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in People v. Becerrada, which was argued on the February calendar.  It is an automatic direct appeal from a February 2009 judgment of death.

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

April 13, 2017

Pro tems assigned for Prop. 66 case

The Supreme Court today assigned Justices Andrea Hoch (Third District Court of Appeal) and Raymond Ikola (Fourth District, Division Three) as pro tem justices for Briggs v. Brown, the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative.  Hoch and Ikola are sitting in place of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin, who are recused.  The assignments were presumably made by Acting Chief Justice Carol Corrigan.

Because of the alphabetical method of assigning pro tems, it is not surprising that Justice Hoch was chosen for the case.  But there were a few other justices alphabetically ahead of Justice Ikola who might have been assigned.

In any event, this is a further sign that Briggs will be argued on the late-May or early-June calendar.

April 10, 2017

Hospital whistleblower can find out quickly that she has no jury trial right

In Shaw v. Superior Court, the Supreme Court today has good news and bad news for a plaintiff in a statutory hospital whistleblower suit.  On the one hand, she need not wait until the end of her case to complain about the superior court’s denial of a jury trial; she can have immediate appellate review of that claim by a petition for writ of mandate.  On the other hand, she’s not going to like the prompt response to her complaint — she has no statutory or state constitutional right to a jury trial.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye does say, however, that the whistleblower statute “fully preserves a plaintiff’s right to obtain a jury trial in the related tort cause of action for wrongful termination in violation of public policy authorized under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167,” and that the remedies for a Tameny cause of action are not limited to the remedies under the whistleblower statute.

The court affirms (on the appellate procedural issue) and reverses (on the jury trial issue) the Second District, Division Three, Court of Appeal.  On the procedural issue, the court overrules four of its old opinions, the newest of which was issued in 1931.

April 9, 2017

Prop. 66 argument before term’s end?

The Supreme Court announced its early-May calendar last week and Briggs v. Brown is not on it.  Briggs is the writ petition challenging Proposition 66, the voter-approved but currently stayed expedited-execution initiative that could wreak havoc with California’s judicial system in general and the Supreme Court in particular.

There are two more oral argument calendars — late-May and June — before the annual July-August argument hiatus.  It’s a good bet that the court will schedule Briggs for one of those two.  That would be unusually fast, but Briggs is one of those unusual cases that often gets expedited treatment.

The court set a very tight briefing schedule for Briggs and gave notice that it did “not anticipate granting any extensions of time” for that schedule.  For the most part, the court has stuck to that warning, except for accepting an amicus brief a week beyond the deadline it had set.

When the court requires expedited briefing in high-profile cases, oral argument often quickly follows.  Examples include cases regarding the governor’s furlough and line-item veto powers, the elimination of redevelopment agencies, a new redistricting system, and a criminal justice initiative sponsored by Governor Jerry Brown.  Even then, however, a faster-than-normal hearing is not fast enough for some parties — e.g., the Proposition 8 standing case.

The court should issue its late-May and June calendars within the next three or four weeks.

April 7, 2017

There will be a 10-case early-May calendar

The Supreme Court today announced its early-May calendar.  May is the only month with two oral argument sessions, and those calendars — and the one in June — are often larger than normal, because the court is putting extra cases into the pipeline before the argument-free months of July and August.

On May 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC:  (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?

Lewis v. Superior Court:  (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?

Friends of the Eel River v. North Coast Railroad Authority:  (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?

People v. DeLeon:  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?

Lynch v. California Coastal Commission:  (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)?

Williams v. Superior Court:  (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.)

Cleveland National Forest Foundation v. San Diego Association of Governments:  Must the environmental impact report for a regional transportation plan 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.)?

In re R.T.:  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?

In re Albert C.:  (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?

People v. Estrada:  Did the trial court improperly rely on the facts of counts dismissed under a plea agreement to find defendant ineligible for resentencing under the provisions of Proposition 36?

April 7, 2017

Hospital whistleblower opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Shaw v. Superior Court, which was argued on the February calendar.

Shaw raises these issues:  (1) Did the Court of Appeal err by reviewing plaintiff’s right to a jury by writ of mandate rather than appeal?  (See Nessbit v. Superior Court (1931) 214 Cal. 1.)  (2) Is there a right to jury trial on a retaliation cause of action under Health and Safety Code section 1278.5?

Two weeks before the case was argued, the Supreme Court told counsel to “be prepared at oral argument to address, in connection with the constitutional jury trial issue, the relationship between an employee’s action for wrong termination under Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 157 and such an employee’s action for retaliatory termination under Health and Safety Code section 1278.5, subdivision (g), including the relevance of the provisions of Health and Safety Code section 1278.5, subdivision (m).”

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

April 6, 2017

Anti-injunction provision in arbitration agreement is unenforceable

In McGill v. Citibank, N.A., the Supreme Court today holds that, notwithstanding the Federal Arbitration Act, California courts will not enforce arbitration agreement provisions that waive the right to seek, in any forum, public injunctive relief under consumer, unfair competition, and false advertising statutes.  The court’s unanimous opinion by Justice Ming Chin (with Fourth District, Division One, Court of Appeal Justice Judith Haller as the pro tem replacement for Justice Carol Corrigan) also concludes that a 2004 initiative — Proposition 64 — does not prevent private parties from seeking public injunctive relief and that the Federal Arbitration Act does not preempt the California unenforceability rule because the rule is “a generally applicable contract defense” rather than one peculiar to arbitration agreements.  The court finds the federal law “does not require enforcement of a provision in a predispute arbitration agreement that, in violation of generally applicable California contract law, waives the right to seek in any forum public injunctive relief under” the state statutes.

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

[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

April 6, 2017

Prevailing-party attorney fees not required for dismissal based on being in the wrong forum

In DisputeSuite.com, LLC v. Scoreinc.com, the Supreme Court today holds that a defendant who obtains a dismissal of an action based on contract forum selection clauses is not necessarily a prevailing party for purposes of collecting attorney fees under the contract’s attorney fee clause.  The court’s unanimous opinion by Justice Kathryn Werdegar concludes that because “the action had already been refiled in the chosen jurisdiction [Florida] and the parties’ substantive disputes remained unresolved, the court could reasonably conclude neither party had yet achieved its litigation objectives to an extent warranting an award of fees.”  The underlying dispute concerns commissions for referrals to credit repair software.

The court assures that a procedural dismissal doesn’t necessarily preclude an attorney fees recovery, but the dismissal must “finally dispose[ ] of the parties’ contractual dispute.”  The court says that the problem with the defendant’s fee claim “is not that its victory in the California trial court was procedural but that it was not dispositive of the contractual dispute.”

The court does not discuss and distinguish its recent opinion holding that attorney fees are recoverable by a defendant who obtains a dismissal under the anti-SLAPP statute on grounds the case was “filed in a tribunal that lacks the power to hear it.”  That case — Barry v. State Bar of California — seems enough in the ballpark to merit a mention in today’s decision.

The court affirms the Second District, Division Two, Court of Appeal.  It disapproves of statements in 2010 and 2008 opinions by the Fourth District, Division Three.

 

April 5, 2017

No conference held the week of April 3, 2017

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

April 5, 2017

A dozen prosecutors and Justice Grodin support the Chief Justice in her immigration-arrests dispute with feds

In the back and forth between California’s Chief Justice and the U.S. Attorney General and Secretary of Homeland Security about courthouse immigration arrests by federal agents, 12 district attorneys and city attorneys from around the state have weighed in on the Chief’s side, in a letter to those federal officials.  So has former Supreme Court Justice Joseph Grodin, in letters to the San Francisco Chronicle and the Los Angeles Times.

Saying that “[n]o one should fear that their immigration status prevents them from seeking justice,” the prosecutors echoed the Chief Justice in writing that courthouse arrests “deter residents concerned about their immigration status from appearing in court — including as crime victims and witnesses — jeopardizing effective prosecution of criminals who may then re-offend.”

Justice Grodin says that the Chief Justice “deserves praise, not admonishment” for “seeking to protect the California justice system from the intimidating and chilling presence of federal immigration agents in and around local courthouses in order to arrest undocumented immigrants,” and he claims that the feds’ dismissive response to the Chief’s letter is “disrespectful of [her] office and position.”

April 5, 2017

“Amazing Cool: Keeping Up With Goodwin Liu”

Ben Shatz interviews Justice Goodwin Liu for the State Bar Litigation Section’s “California Litigation Review.”  [The link might be for Litigation Section members only.]  There’s plenty of biographical information and a discussion of his practice of hiring annual law clerks.

Justice Liu also talks about his 2006 Senate testimony against the nomination of U.S. Supreme Court Justice Samuel Alito Jr., testimony which contributed to the Senate’s later blocking of Justice Liu’s own nomination to the Ninth Circuit.  He says, “my testimony included some language that was unduly harsh, and that was a mistake.  I don’t know whether he was bothered by it or even knew about it.  But I did send him a personal apology, and he could not have been more gracious about it.”

Justice Liu brings up in the interview the Supreme Court’s two In re Richards opinions — the court granted a habeas corpus petition because of recanted expert testimony only after the Legislature amended a statute in sync with his dissent from the court’s initial decision denying relief.  Liu cites that as an example of how a justice “can have impact in this job” and he recounts how Richards himself drove an hour to a panel discussion so he could shake Liu’s hand.

April 5, 2017

Arbitration, attorney fees opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in McGill v. Citibank, N.A. and DisputeSuite.com, LLC v. Scoreinc.comMcGill was argued on the December calendar, but the court has not blown the 90-day deadline; the court requested post-argument supplemental briefs, so the 90-day clock did not re-start until February 15, when the last supplemental brief was filed.  That argument had already been continued from the October calendarDisputeSuite.com will be the first opinion in the cases argued in February.

McGill raises this issue:  Does the Federal Arbitration Act (9 U.S.C. § 1 et seq.), as interpreted in AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 321, preempt the California rule (Broughton v. Cigna Healthplans (1999) 21 Cal.4th 1066; Cruz v. PacifiCare Health Systems, Inc. (2003) 30 Cal.4th 303) that statutory claims for public injunctive relief are not subject to compulsory private arbitration?
[Justice Carol Corrigan is recused.  Fourth District, Division One, Court of Appeal Justice Judith Haller is the pro tem replacement.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

In DisputeSuite.com, the court will decide whether the defendants were entitled to an award of attorney fees under Civil Code section 1717 as the prevailing parties in an action on a contract when they obtained the dismissal of the action on procedural grounds pursuant to a Florida forum selection clause.

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

April 3, 2017

Does the feds’ response to the Chief Justice request Fourth Amendment violations?

An ImmigrationProf blog post asks that question and says the answer might be “yes.”

The U.S. Attorney General and the Secretary of Homeland Security last week responded to Chief Justice Tani Cantil-Sakauye’s request that immigration agents not “stalk” undocumented immigrants and make arrests in California courthouses.  (New York Times and Daily Journal [subscription] coverage here and here.)  Among other things, their letter “encourage[d]” the Chief Justice to express her concerns to Governor Jerry Brown and “local officials who have enacted policies that occasionally necessitate ICE officers and agents to make arrests at courthouses and other public places.”  One of those policies, the letter says, is “denying requests by ICE officers and agents to enter prisons and jails to make arrests.”

The ImmigrationProf Blog reports that ICE requests have included asking local jails to “detain for an extra 48 hours immigrants who have served their jail sentences and are entitled to release” (see here and here) and that a federal court has ruled such detentions to be Fourth Amendment violations.

April 2, 2017

“Prop. 66 could deal ‘mortal blow’ to court”

Maura Dolan reports in today’s Los Angeles Times about Proposition 66, the speed-up-the-death-penalty initiative that passed in last year’s election with 51 percent of the vote.  The Supreme Court, with Chief Justice Tani Cantil-Sakauye and Justice Ming Chin recused (and their pro tem replacements uncertain), put the law on hold while it considers a writ petition — Briggs v. Brown — challenging the law’s constitutionality.  The briefing in the case is available online, except for a host of amicus briefs filed Thursday, which are not up yet.

The Times article — subtitled “Measure to quicken executions would inundate justices with extra work on appeals, experts warn” — focuses mostly on the parts of the initiative that require extreme expediting of judicial review.  It quotes Jon Eisenberg, president of the California Academy of Appellate Lawyers, which opposed the initiative, as saying, “Prop. 66 would require the California Supreme Court to decide virtually nothing but death penalty appeals for at least the next five years — almost no civil cases at all and no criminal cases other than capital murder.”  [Disclosure:  Eisenberg is “of counsel” to Horvitz & Levy.]  It is unclear whether the court could comply with Prop. 66’s draconian time limits even by handling nothing but death penalty appeals, because those appeals take considerably more work than the average case.

The court has examined before complaints about delay in the death penalty system, ironically by condemned defendants, who claim that systemic delay violates the Eighth Amendment bar against “cruel and unusual punishment.”  Most recently, in its 2015 People v. Seumanu opinion, the court did not definitively reject the argument, but nonetheless stated, “allowing each case the necessary time, based on its individual facts and circumstances, to permit this court’s careful examination of the claims raised is the opposite of a system of random and arbitrary review.”  (People v. Seumanu (2015) 61 Cal.4th 1293, 1375.)  The opinion also quoted a federal appeals court:  “‘We believe that delay in capital cases is too long.  But delay, in large part, is a function of the desire of our courts, state and federal, to get it right, to explore exhaustively, or at least sufficiently, any argument that might save someone’s life.'”  (Ibid.)  This indicates that the court will be sensitive to the harm caused by any law that rushes the process.

April 1, 2017

“At legal odds over ICE”

Del Quentin Wilber and Maura Dolan report in today’s Los Angeles Times about the federal government’s response to charges made by Chief Justice Tani Cantil-Sakauye — in a letter, her State of the Judiciary speech, and at least one interview — that immigration agents are “stalking” undocumented immigrants in California courts.  The Attorney General and Secretary of Homeland Security conceded that agents are making courthouse arrests, but objected to the “stalking” characterization and defended the policy.  The Chief Justice said in a statement she appreciated the “admission that they are in state courthouses making federal arrests” and she reiterated her concerns about the practice — “Making arrests at courthouses, in my view, undermines public safety because victims and witnesses will fear coming to courthouses to help enforce the law.”

March 31, 2017

Summary of March 22 and 29, 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 conferences on March 22 and 29, 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

Chen v. L.A. Truck Centers, LLC, S240245 – Review Granted – March 29, 2017

In a published decision, Chen v. L.A. Truck Centers, LLC (2017) 7 Cal.App.5th 757, the Court of Appeal, Second District, Division Eight, reversed the trial court’s application of Indiana law in a products liability action arising out of a tour bus accident in Arizona that killed or injured 10 Chinese nationals.  The defendant Indiana-based bus manufacturer settled, as did other defendants, leaving a California bus dealer as the lone defendant at trial.  The dealer prevailed at trial under Indiana law, which is more favorable to defendants than California law.

This case presents the following issue: Must a trial court reconsider its ruling on a motion to establish the applicable law governing questions of liability in a tort action when the party whose presence justified that choice of law settles and is dismissed?

County of San Diego v. Commission on State Mandates, S239907 – Review Granted – March 29, 2017

In a published decision, County of San Diego v. Commission on State Mandates (2016) 7 Cal.App.5th 12, the Court of Appeal, Fourth District, Division One, reversed the lower court’s decision affirming the Commission on State Mandates’ holding that local governments and school districts were not eligible for reimbursement.  The Commission previously concluded costs associated with eight activities required of local governments by the  Sexually Violent Predator Act (SVPA, Welf. & Inst. Code, § 6600 et seq.) were eligible for reimbursement because they were state mandated.  The Commission revisited that decision based on the passage of Proposition 83 in 2006 and concluded that six of the duties it deemed state mandated in 1998 were instead mandated by the ballot initiative, thereby removing reimbursement eligibility.

This case presents the following issue: Did The Sexual Predator Punishment and Control Act (the voter initiative otherwise known as “Jessica’s Law” or Proposition 83), which amended and reenacted provisions of the Sexually Violent Predator Act, a statutory scheme that the Commission on State Mandates had found to include reimbursable state mandates, constitute a “change in the law” sufficient to support the Commission’s decision that some of those mandates were no longer reimbursable by the State of California?

FTI v. Superior Court, S239402 – Review Granted and Held – March 29, 2017

The Supreme Court granted review of a summary denial of a petition for writ of mandate by the Court of Appeal, First District, Division Four, in FTI v. Superior Court (Dec. 29, 2016, A149860).  The Court has delayed further action pending the United States Supreme Court’s decision in Bristol-Myers Squibb v. Superior Court (2016) 1 Cal.5th 783, certiorari granted January 19, 2017, __ U.S. __ [137 S.Ct. 827].

Moalem v. Gerard, S239434 – Review Granted – March 22, 2017

In an unpublished opinion, Moalem v. Gerard (Dec. 1, 2016, B268963), the Court of Appeal, Second District, Division Two, affirmed a finding of a private nuisance  when the defendant-neighbor’s tree grew at an angle over her adjoining plaintiff-neighbor’s property.  The court held negligence was not required finding for a private nuisance arising from an overgrown tree.

The Supreme Court limited review to the following issues: (1) Is negligent or intentional action a necessary element of a cause of action for abatement of a natural condition-private nuisance based on a failure, or omission to act and, if so, should tree encroachment cases be exempted from this rule? (2) Assuming negligence is required, can negligence be demonstrated under the circumstances of this case? Does it matter that defendant owned both parcels of land when the tree was maturing? (3) Who should bear the expense of tree removal when it is infeasible to remove only the encroaching parts of an otherwise healthy tree that overhangs a neighbor’s premises? Should the tree owner be compensated for the loss of an otherwise healthy tree that is found to create a nuisance? (4) When, if ever, is it proper for a defendant to raise the issue of comparative negligence in private nuisance actions? (See Tint v. Sanborn (1989) 211 Cal.App.3d 1225, and Kafka v. Bozio (1923) 191 Cal. 746, 748.) Is the fact that part of the subject tree was encroaching on the property before plaintiffs purchased it a relevant consideration?

National Shooting Sports Foundation v. State of California, S239397 – Review Granted – March 22, 2017

In a published opinion, National Shooting Sports Foundation, Inc. v. State of California (2016) 6 Cal.App.5th 298, the Fifth District Court of Appeal held that plaintiff’s action to invalidate Penal Code section 31910, subdivision (b)(7)(A), on the ground it is impossible to comply with the statute, survived judgment on the pleadings.  Penal Code section 31910, subdivision (b)(7)(A) designates a handgun as unsafe unless it is  designed and equipped with a microscopic array of characters that identify the make, model, and serial number of the pistol, etched or otherwise imprinted in two or more places on the interior surface or internal working parts of the pistol, and that are transferred by imprinting on each cartridge case when the firearm is fired.

This case presents the following issues: (1) Can a statute be challenged on the ground that compliance with it is allegedly impossible? (2) If so, how is the trial court to make that determination?

Newport Harbor Ventures v. Morris Cerullo World Evangelism, S239777  – Review Granted – March 22, 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 the filing of an amended complaint does not automatically reopen the period for bringing an anti-SLAPP motion and therefore, defendant’s anti-SLAPP motion filed within 60 days of the third amended complaint was untimely.

This case presents the following issues: (1) May a motion to strike under the anti-SLAPP statute be brought against any claim in an amended complaint, including claims that were asserted in prior complaints? (2) Can inconsistent claims survive an anti-SLAPP motion if evidence is presented to negate one of the claims?

Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians), S239630 – Review Granted and Held – March 22, 2017

In a published decision, Stand Up For California! v. State Of California (North Fork Rancheria Of Mono Indians) (2016) 6 Cal.App.5th 686, a divided panel of the Fifth District Court of Appeal held the Governor did not have authority to negotiate a tribal-state compact authorizing class III gaming when the land taken into trust was not Indian land because a state referendum disapproved of the legislative ratification of a compact between the Governor and the Indian tribe.

The Court deferred briefing pending resolution of United Auburn Indian Community of the Auburn Rancheria v. Brown, S238544, which presents the following issue: May the Governor concur in a decision by the Secretary of the Interior to take off-reservation land in trust for purposes of tribal gaming without legislative authorization or ratification, or does such an action violate the separation of powers provisions of the state Constitution?

Nationwide Biweekly Administration v. Superior Court, S239979 – Review Granted and Transferred – March 22, 2017

In Nationwide Biweekly Administration v. Superior Court (Feb. 1, 2017, A150264), the Court of Appeal, First District, Division One, summarily denied a petition for writ of mandate. The Supreme Court granted review and remanded with directions to the Court of Appeal vacate its order denying the petition and to issue an order to show cause why defendant does not have a right to a jury trial where the government seeks to enforce the civil penalties for unfair competition, for false advertising, or for violations of the Check Sellers, Bill Payers and Proraters Law, authorized under Business and Professions Code sections 17206 and 17536 and Financial Code section 12105, subdivision (d).

Request to Answer Certified Question of State Law Granted

Pitzer College v. Indian Harbor Insurance Company, S239510  – Request to Answer State Law Question Granted – March 22, 2017

The United States Court of Appeals for the Ninth Circuit asked the Supreme Court to decide questions of California law. The federal court ordered briefing deferred pending a determination of  two state law questions on  the notice-prejudice rule with regard to a coverage suit against an insurer.

The issues as restated by the Supreme Court are as follows:  (1) Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis? (2) If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can the notice-prejudice rule apply to the consent provision in this case?

Review Denied (with dissenting justices)

None.

Depublished

None.

March 30, 2017

Video available of California Supreme Court Historical Society book event

Last November, the California Supreme Court Historical Society hosted a panel discussion with Chief Justice Tani Cantil-Sakauye and former Chief Justice Ronald George to celebrate a new book on the history of the California Supreme Court.  There’s now a video of the event.  [Disclosure:  I serve on the Society’s board, and the back of my head is visible in the audience.]

March 30, 2017

Practice tip: While your client’s case is before the Supreme Court, keep him away from the justices

The Daily Journal [subscription] yesterday reported about Sergio Garcia, who was granted a law license by the Supreme Court three years ago when he was an undocumented immigrant.  In her State of the Judiciary speech earlier this week, Chief Justice Tani Cantil-Sakauye mentioned Garcia’s admission to the bar as an example of what happens “when the rule of law stands strong.”

The article — “Lawyer once illegally in US claims thriving practice” — includes Garcia recounting how a non-lawyer friend tried to introduce him to the Chief Justice at a bar event while the Supreme Court was considering whether to admit him as a practicing attorney.  According to Garcia, “he was caught flat-footed,” but the Chief Justice “turned and walked away as fast as she could without saying a word,” presumably to avoid contact with a party to a pending matter.  Garcia said, “Never even give an impression of impropriety.  As a human being, it didn’t feel great.  As an attorney, I get it 100 percent.”

Members of the Supreme Court bar probably don’t have a standard practice of affirmatively advising clients to avoid contact with the court’s justices if the clients have a case pending in the court, because the opportunities for that contact are rare.  It’s not a bad thing to keep in mind, though.

March 30, 2017

Environmental impact report must account for potential sensitive habitat areas

In Banning Ranch Conservancy v. City of Newport Beach, the Supreme Court today holds that an environment impact report “must identify areas that might qualify as environmentally sensitive habitat areas (ESHA) under the California Coastal Act of 1976 (Coastal Act; § 30000 et seq.), and account for those areas in its analysis of project alternatives and mitigation measures.”  Because the EIR in the case before it didn’t do that and because the failure was prejudicial, the court’s unanimous opinion by Justice Carol Corrigan puts a hold on commercial and residential development of a 400-acre coastal zone tract in Orange County.  The court concludes that “[i]nformation highly relevant to the Coastal Commission’s permitting function was suppressed.”

In the quotable department:  Although discussing wildlife, the court misses the opportunity to use the word “critters” in an opinion for the second time in one week.  The opinion does, however, characterize a statute’s terms as “less than crystalline.”

The court reverses the Fourth District, Division Three, Court of Appeal.  It also finds to be “incorrect” a “suggest[ed]” statutory interpretation in a 2008 decision of the Second District, Division Two.

March 29, 2017

“Jerry Brown’s legacy at the high court”

Former Supreme Court Justice Joseph Grodin writes in today’s Daily Journal [subscription] about the mark on the Supreme Court that Jerry Brown has made in his four non-consecutive terms as California’s governor.  Brown has already appointed ten justices, and will probably make his eleventh appointment after Justice Kathryn Werdegar retires in five months.

Grodin, whom Brown appointed to the court in 1982, touts not only the state high court’s national influence, but also its diversity.  He says, “Jerry Brown (along with other recent governors) has contributed to what is, in terms of gender and ethnic background, probably the most diverse court in the land.”  (Chief Justice Tani Cantil-Sakauye recently offered similar praise for Brown.)  Grodin goes on to state that the diversity “is more than a matter of symbol or political correctness.  There are studies which show, and I can attest from my own experience, that diversity has an effect on the nature and quality of discussion which takes place within a deliberative body, enhancing understanding and empathy.”

Grodin also includes a pitch to Brown to pick a judge to replace Justice Werdegar:  “At present, four of the seven justices (including Justice Werdegar) had prior judicial experience, and while the three most recent appointees have performed brilliantly, Justice Werdegar’s retirement provides an opportunity for Brown to retain that balance.  This state’s trial and appellate courts have an abundance of talent to choose from.”

March 29, 2017

Land use opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Banning Ranch Conservancy v. City of Newport Beach, the last undecided case from the January calendar.

Banning Ranch raises these issues:  (1) Did the City’s approval of the project at issue comport with the directives in its general plan to “coordinate with” and “work with” the California Coastal Commission to identify habitats for preservation, restoration, or development prior to project approval?  (2) What standard of review should apply to a city’s interpretation of its general plan?  (3) Was the city required to identify environmentally sensitive habitat areas – as defined in the California Coastal Act of 1976 (Pub. Resources Code, § 3000, et seq.) – in the environmental impact report for the project?

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

March 28, 2017

Chief Justice to Legislature: “The rule of law is being challenged”; speech draws national attention

In her annual State of the Judiciary address to the Legislature yesterday afternoon, Chief Justice Tani Cantil-Sakauye showed a willingness to discuss threats to the entire American system of government, not just to California’s judiciary.  In past addresses, the Chief Justice has criticized lack of funding for the state’s courts as compromising access to justice.  (E.g., here and here.)  She did that again this year, but her primary concerns were clearly broader.

Three years ago, the Chief Justice talked about “a different type of civil rights crisis,” one that is “not about the law,” but “about access to it.”  Yesterday, however, her focus was on the foundation of our society — the rule of law — and she warned, “the rule of law is being challenged.”  Cantil-Sakauye gave as examples of the failure of the rule of law the internment of her mother- and father-in-law — and 120,000 others — during World War II, the late 19th Century Chinese exclusion laws, and state laws legalizing forced sterilization.  Although all three branches of government were in place at those times, she said, “it was the forces of fear and prejudice that caused the rule of law to fail.”

Speaking once more of her recent letter to federal authorities asking that immigration agents not “stalk” California’s courthouses, the Chief Justice said that it was her “concern for the rule of law and checks and balances that prompted” her request.  Mention of the letter drew applause from many of the legislators.

The Chief Justice’s address and her letter have attracted considerable media attention, both in California and nationwide.  Derek Hawkins in The Washington Post today said that Cantil-Sakauye “is fast emerging as one of the Trump administration’s most vocal critics in the judiciary” and Alexei Koseff in the Sacramento Bee noted that yesterday’s “pointed remarks struck an unusually political tone for Cantil-Sakauye.”  There is similar coverage on CBS News, and in the San Francisco Chronicle, the Los Angeles Times, the Associated Press, The Recorder [subscription], and the Daily Journal [subscription].

The Chief Justice began her remarks by recognizing and thanking Justice Kathryn Werdegar, who will retire from the court in five months.

March 27, 2017

Statutory warning about possible deportation consequences doesn’t conclusively preclude plea withdrawal

In People v. Patterson, the Supreme Court today holds that a Canadian citizen facing mandatory deportation because of a guilty plea to a drug possession charge might have good cause to withdraw the plea even though he was given a statutory warning that his criminal conviction “may” make him deportable.  The court’s unanimous opinion by Justice Leondra Kruger states that the warning does not necessarily give notice of an “actual risk” of adverse immigration consequences and that, “for many noncitizen defendants deciding whether to plead guilty, the ‘actual risk’ that the conviction will lead to deportation — as opposed to general awareness that a criminal conviction ‘may’ have adverse immigration consequences — will undoubtedly be a ‘material matter[]’ that may factor heavily in the decision whether to plead guilty.”

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

March 27, 2017

Credit card information thief’s eligibility for reduced sentence under Prop. 47 depends on illegal market value analysis

In its second Proposition 47 opinion in four days, the Supreme Court holds that a person previously convicted of a felony for stealing access card account information, which includes credit and debit card information, can have his or her sentence reduced under the 2014 initiative, so long as the reasonable and fair market value of the stolen information is under $950.  The court’s unanimous opinion in People v. Romanowski — by Justice Mariano-Florentino Cuéllar — concludes that stealing access card information is included in the category of crimes described by the proposition as “obtaining any property by theft.”  The initiative did not make “a distinction between tangible and intangible property,” the court says.

The court notes the difficulty in valuing the stolen information, especially since fraudulent use of access cards is a separate crime.  Rejecting both parties’ proposed solutions to the problem (which is not the first time the court has done this), the court concludes that a judge must “identify how much stolen access card information would sell for,” even though the information cannot be sold legally.  The opinion states that there should be no restriction on “looking at evidence of illegal market value.”

The opinion also includes a succinct, alliterative description of the scope of a grand theft statute:  “In sum, section 487 makes it grand theft to steal:  more than $950 worth of anything; more than $250 worth of the crops or critters listed in subdivision (b); anything at all from the victim’s person; or any cars or guns.”  A Westlaw search indicates that this is the first use of the word “critters” in a California Supreme Court opinion.

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

March 26, 2017

“California’s top justice touts strength of state courts”

Bob Egelko reports in the San Francisco Chronicle.  The headline is misleading, because the article is about a speech by Justice Goodwin Liu, not Chief Justice Tani Cantil-Sakauye.  On Thursday, Justice Liu delivered the 23rd annual William Brennan Lecture on State Courts and Social Justice at NYU Law School.  “A state court can provide protection for basic liberties that otherwise would go unprotected in that state,” Liu said.  He has written about “independent state constitutionalism” before.

Liu’s talk also included commentary about the limits of Alexander Hamilton’s powers of prediction.  The article says that, despite Hamilton’s “forecast that federal judges’ status would protect them from the ‘encroachments and oppressions’ of legislative bodies, Liu said, ‘the modern Supreme Court has not generally strayed far from public opinion.’  ‘Hamilton may have been a constitutional rock star,’ Liu said, ‘but he wasn’t a political scientist.’”

March 25, 2017

Chief Justice criticizes courthouse immigration enforcement, president’s disparagement of federal judges

A week after sending a letter accusing federal agents of “stalking” undocumented immigrants in California’s courthouses, Chief Justice Tani Cantil-Sakauye continued her criticism in an interview with KQED by comparing that conduct to what she saw as a trial judge in domestic violence court.  “I understand what stalking means and the fear that it instills in the victim,” the Chief Justice said.  She explained that the “enforcement tactics in the courthouses have a detrimental effect on safety in the communities,” by inhibiting people from cooperating with law enforcement efforts.

Cantil-Sakauye also had harsh words for the president’s disparaging comments about federal judges, calling the attacks “very threatening to the third branch of government.”

In the interview, the Chief Justice touched briefly on the “tremendous impact” that changes in the court’s composition have had over the last few years, and will continue to have as Justice Kathryn Werdegar prepares to leave the court.  Further, she discussed the “improving” diversity in the state’s courts, praising Governor Brown for being “very proactive in diversifying the judicial branch.”

March 24, 2017

Another Prop. 47 opinion, and one about advising criminal defendants of a plea’s immigration consequences, are filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Romanowski and People v. Patterson, which were both argued on the January calendar.

Romanowski will be the court’s second Proposition 47 opinion in four days, after yesterday’s decision that cashing a stolen check is “shoplifting.”  The Monday decision will determine whether Proposition 47, which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), applies to theft of access card information in violation of Penal Code section 484e, subdivision (d).

In Patterson, the court will decide whether defendant was entitled to withdraw his plea (Pen. Code, § 1018) because his trial counsel assertedly provided constitutionally inadequate assistance of counsel during plea negotiations by failing to investigate and advise defendant of the immigration consequences of his plea.

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

March 23, 2017

Divided Supreme Court rules cashing a stolen check is “shoplifting” under Prop. 47, allowing for misdemeanor resentencing

In People v. Gonzales, the Supreme Court today holds that, under the four-year-old Proposition 47, entering a bank to cash a stolen check under $950 is now called “shoplifting,” not theft by false pretenses.  The nomenclature is important because the change makes the defendant in the case eligible for a sentence reduction.  The court’s 5-2 opinion by Justice Carol Corrigan concludes that “shoplifting” no longer means just taking goods from a store.  Instead, Proposition 47 “creates a term of art, which must be understood as it is defined, not in its colloquial sense.”

Justice Ming Chin — joined by Justice Goodwin Liu — dissents.  He claims that the majority’s statutory interpretation cannot be what the electorate intended, because it modifies the term “shoplifting” “from its commonly understood meaning and expand[s] it beyond all recognition.”

Both the majority and dissenting opinions cite to published Court of Appeal opinions in which the Supreme Court granted review after last July 1.  Under a new publication rule, there’s nothing wrong with that.

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

March 23, 2017

Bankrupt beneficiary of spendthrift trust has only limited protection for his interest in the trust

In Carmack v. Reynolds, a case involving a bankruptcy trustee’s attempt to access funds in a spendthrift trust, the Supreme Court today answers a state law question posed by the Ninth Circuit.  The court’s unanimous opinion by Justice Goodwin Liu agrees with the federal court that “the relevant [California] statutory provisions are ‘opaque,'” and concludes that one of the statutes at issue likely “reflects a drafting error.”

The court holds, “With limited exceptions for distributions explicitly intended or actually required for the beneficiary’s support, a general creditor may reach a sum up to the full amount of any distributions that are currently due and payable to the beneficiary even though they are still in the [spendthrift trust] trustee’s hands, and separately may reach a sum up to 25 percent of any payments that are anticipated to be made to the beneficiary.”  Also, for most of those who do not practice in the field or who have not been in law school within the past year, the court explains, “A spendthrift trust is a trust that provides that the beneficiary’s interest cannot be alienated before it is distributed to the beneficiary.”

March 22, 2017

Supreme Court agrees to answer Ninth Circuit’s choice-of-law questions

Tomorrow, the Supreme Court will answer one Ninth Circuit question.  Today, it agreed to answer another one.  In Pitzer College v. Indian Harbor Insurance Company, the court granted the Ninth Circuit’s request to decide choice-of-law issues that arise in an insurance coverage case.

The court restated the California law issues this way:  (1) Is California’s common law notice-prejudice rule a fundamental public policy for the purpose of choice-of-law analysis?  (2) If the notice-prejudice rule is a fundamental public policy for the purpose of choice-of-law analysis, can the notice-prejudice rule apply to the consent provision in this case?

March 22, 2017

Spendthrift trust, Prop. 47 opinions filing tomorrow

Tomorrow morning, the Supreme Court will file opinions in Carmack v. Reynolds and People v. Gonzales, which were both argued on the January calendar.

At the Ninth Circuit’s request, the court will decide in Carmack whether Probate Code section 15306.5 imposes an absolute cap of 25 percent on a bankruptcy estate’s access to a beneficiary’s interest in a spendthrift trust that consists entirely of payments from principal, or whether the bankruptcy estate may reach more than 25 percent under other sections of the Probate Code.  When it asked for an answer to the question, the Ninth Circuit said that resolution of the appeal before it “could transform the terrain of California trust law” and that the appeal “hinges on the interpretation of opaque sections of the Probate Code.”

Gonzales is one of the many Proposition 47 cases that is or was on the court’s docket.  (It’s one of two that were argued in January.)  The issue is:  Was defendant entitled to resentencing under Penal Code section 1170.18 on his conviction for second degree burglary either on the ground that it met the definition of misdemeanor shoplifting (Pen. Code, § 459.5) or on the ground that section 1170.18 impliedly includes any second degree burglary involving property valued at $950 or less?

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

March 20, 2017

Divided Supreme Court finds “serious constitutional error” to be harmless

In People v. Merritt, the Supreme Court today affirms a robbery conviction even though the trial court did not instruct the jury on the elements of robbery.  The court’s opinion by Justice Ming Chin — for himself and four other justices — states that “[t]he failure to instruct on the elements of a charged crime is serious constitutional error that impacts a defendant’s fundamental right to a jury trial” and that it is the “kind of error [that] should never occur,” but holds the error was harmless in the case before it.  (The defendant in the case conceded a robbery had taken place, but denied he was the robber.)  The court concludes that one of its 1993 opinions, which had ruled that this type of instructional error is reversible per se, was made “obsolete” by a subsequent U.S. Supreme Court decision.

There are two separate opinions.  Justice Goodwin Liu concurs, stating that “some form of harmless error review is appropriate,” but that “such review is more circumscribed . . . than [the court’s] opinion suggests.”  Justice Mariano-Florentino Cuéllar dissents, contending that, “[w]hen a jury’s deliberation is in no way structured by the facts that the Legislature singled out as necessary for a conviction, jurors might as well have been asked nothing more than, ‘do you think the defendant is guilty of anything?'”  The majority finds “the dissent’s rhetoric” to be unconvincing.

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

March 20, 2017

Supreme Court upholds sex offender probation conditions

Noting that “[h]ow to manage and supervise [registered sex] offenders is one of the most difficult challenges facing government policymakers today,” the Supreme Court today upholds parts of 2010 legislation that imposes conditions the offenders must accept as prerequisites to probation.  Under that law, mandatory treatment for a sex offender includes requiring the offender to waive “any” self-incrimination privilege and psychotherapist-patient privilege, and also to participate in polygraph examinations.

The court’s opinion — in People v. Garcia — by Justice Mariano-Florentino Cuéllar explains that “any” should not be interpreted literally regarding the self-incrimination-privilege-waiver condition, so as not to run afoul of the Fifth Amendment.  The court concludes, in an anti-textualist approach to statutory construction, “The condition is properly read . . . to require that probationers answer all questions . . . fully and truthfully, with the knowledge that these compelled responses could not be used against them in a subsequent criminal proceeding.”

Although signing the court’s opinion, Justice Leondra Kruger writes a concurring opinion to “elaborate” why the condition requiring a waiver of any privilege against self-incrimination should not include an “anticipator[y] waive[r]” by offenders of the “right to object if the state later uses their answers against them in criminal proceedings.”  Justice Goodwin Liu signs only Justice Kruger’s concurrence, not the court’s opinion.

The court affirms the Sixth District Court of Appeal.

March 20, 2017

Supreme Court mostly unanimous in affirming death sentence

The Supreme Court today affirms the death sentence in People v. Brooks.  The court’s 143-page opinion is by Chief Justice Tani Cantil-Sakauye, for herself and five other justices.  Justice Goodwin Liu writes a separate concurring and dissenting opinion.  Among many other holdings, the court finds instructional errors and also two instances of jury misconduct — one occurred during the penalty phase, when the jurors asked “to hear from” the defendant — but nothing that requires reversal.

Like the majority, Justice Liu would not reverse the death sentence, but he disagrees with the court that there was sufficient evidence to support one of two special circumstance findings — the one for kidnapping-murder.  Justice Liu recognizes that although winning a substantial evidence argument on appeal is difficult, he says that “[t]he sufficiency standard is deferential but not toothless.”

March 19, 2017

Two votes for review in case involving mom’s murder of children

In People v. McCarrick, the First District, Division Four, Court of Appeal affirmed the life-without-parole judgment against a mom who murdered her twin three-year-old daughters with a sword.  The appeal concerned jury instructions given during the sanity phase of the trial.

Last week, the Supreme Court denied the defendant’s petition for review.  Justices Kathryn Werdegar and Mariano-Florentino Cuéllar recorded votes to grant review, however.

Record votes are worth noting, because dissents from denials of review are not always known outside the court; a justice must affirmatively request that his or her dissent be publicly recorded.  (Separate statements that explain those dissents are especially rare.)   That’s why our weekly conference reports keep track of record votes in civil cases.

March 17, 2017

Summary of March 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 Wednesday, March 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

Elliott Homes, Inc. v. Superior Court, S239804 – Review Granted and Held – March 15, 2017

Plaintiffs and real parties in interest filed an action against the builder of their homes, seeking damages for construction defects.  The builder moved to stay proceedings until real parties in interest complied with the prelitigation procedure set forth in what is commonly referred to as “SB 800” or the “Right to Repair Act,” Civil Code sections 895 through 945.5. Real parties in interest opposed the motion, arguing the prelitigation procedure did not apply because they had not alleged a statutory violation of the Act.  The trial court denied the stay. In a published opinion, Elliott Homes, Inc. v. Superior Court (2016)  6 Cal.App.5th 333, the Third District Court of Appeal granted the builder’s petition for writ of mandate, ordering the trial court to vacate its order and enter a new order granting the stay.

Following a depublication request, the Supreme Court ordered review on its own motion and deferred briefing pending its decision in McMillin Albany LLC v. Superior Court, S229762, which presents the following issue: 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?  (Full disclosure: Horvitz & Levy LLP has filed an amicus curiae brief in McMillin Albany.)

Review Denied (with dissenting justices)

None.

Depublished

None.

March 17, 2017

Three criminal case opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Merritt, People v. Brooks, and People v. Garcia.  All three were argued on the January calendar.

In Merritt, the issue is:  Is the failure to instruct the jury on the elements of a charged offense reversible per se or subject to harmless error review?  (See Neder v. United States (1999) 527 U.S. 1; People v. Mil (2012) 53 Cal.4th 400; People v. Cummings (1993) 4 Cal.4th 1233.)

Garcia raises the issue whether the conditions of probation mandated by Penal Code section 1203.067, subdivision (b), for persons convicted of specified felony sex offenses – including waiver of the privilege against self-incrimination, required participation in polygraph examinations, and waiver of the psychotherapist-patient privilege – are constitutional.

Brooks is an automatic direct appeal from a July 2001 judgment of death.

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

March 17, 2017

A new sua sponte grant of review

The Supreme Court this week granted review in a case on its own motion, something it does occasionally.  This one isn’t as big a deal as the last two (here and here), however.  In those, it appears that nobody brought the cases to the court’s attention, and the court ordered a straight grant, meaning it ordered briefing, held (or will hold) an oral argument, and issued (or will issue) an opinion.  In the new case, Elliott Homes, Inc. v. Superior Court, although there was no petition for review, a non-party filed a request to depublish the Court of Appeal opinion and the Supreme Court issued a grant-and-hold order, so there likely will be no briefing, oral argument, or opinion.

The Elliott Homes case is on hold for McMillin Albany, LLC v. Superior Court, which raises the issue, “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?”  [Disclosure:  Horvitz & Levy has filed an amicus curiae brief in McMillin Albany.]

March 16, 2017

Chief Justice to feds: stop using courthouses as ICE “bait”

In a strongly worded letter to the United States Attorney General and the Secretary of Homeland Security, Chief Justice Tani Cantil-Sakauye — speaking in her role as head of California’s judiciary — expressed deep concern about reports that federal immigration agents “appear to be stalking undocumented immigrants in our courthouses to make arrests.”  The “vast majority” of those immigrants “pose no risk to public safety” and the courthouse arrest policies “are neither safe nor fair,” the Chief Justice said.  Rather, she said, those policies “not only compromise our core value of fairness but they undermine the judiciary’s ability to provide equal access to justice.”

According to the Chief Justice, the new courthouse stalking policies interfere with trial courts’ ability “to mitigate fear to ensure fairness and protect legal rights” for “millions of the most vulnerable Californians in times of anxiety, stress, and crises in their lives,” including “[c]rime victims, victims of sexual abuse and domestic violence, witnesses to crimes who are aiding law enforcement, limited-English speakers, unrepresented litigants, and children and families.”

Stating that “[c]ourthouses should not be used as bait in the necessary enforcement of our country’s immigration laws,” the Chief Justice concluded by asking the Attorney General and Secretary to “refrain from this sort of enforcement in California’s courthouses.”

March 15, 2017

Ninth Circuit sends The Turtles to the Supreme Court [Updated]

As it suggested at a December oral argument that it might do, the Ninth Circuit today asks for the Supreme Court’s help in answering questions of state copyright law in a lawsuit brought by the band The Turtles.  In Flo & Eddie, Inc. v. Pandora Media, Inc., the federal appeals court requests that the Supreme Court decide:  “1. Under section 980(a)(2) of the California Civil Code, do copyright owners of pre-1972 sound recordings that were sold to the public before 1982 possess an exclusive right of public performance?  2. If not, does California’s common law of property or tort otherwise grant copyright owners of pre-1972 sound recordings an exclusive right of public performance?”

Flo & Eddie, Inc. (i.e., The Turtles), have been pursuing similar litigation around the country.  (See, e.g., here [subscription] and here.)  In two of those cases, the Eleventh Circuit has certified to the Florida Supreme Court and the New York Court of Appeals answered for the Second Circuit questions of state copyright law that are related to those the Ninth Circuit is now asking of California’s high court.  Noting these similar cases, the Ninth Circuit states, “We agree with our sister circuits that certification is the best way to proceed on these issues, especially in California.  As an incubator of both musical talent and technological innovation, California has a significant interest in the appropriate resolution of the certified questions.”

The Supreme Court should decide by mid-May — give or take — whether it will answer the Ninth Circuit’s question.  Usually, the Supreme Court, as a matter of comity, will grant those requests in order to keep the two courts happy together.

[March 17 update:  The Supreme Court docketed the Ninth Circuit’s request yesterday.]

March 14, 2017

Unusual un-hold and re-hold orders

There are many grant-and-hold cases on the Supreme Court’s docket, particularly in criminal matters since a 2015 change in internal court procedure.  Most of these cases are disposed of summarily, in light of a decision in another Supreme Court case.  Occasionally, however, the court will un-hold a grant-and-hold, and order briefing, hear oral argument, and issue an opinion.  (E.g., here and here.)

The court un-held another case last month.  But, uncommonly, the briefing order in that case — People v. Guerrero — came only one week after the grant of review.  It’s possible the court, running up against a deadline to act on the petition for review, wanted to grant review but needed a little extra time to determine what issue it would decide.

More unusual was a hold order issued last week in People v. Enriquez.  First, it was actually a re-hold order, because the case originally was a grant-and-hold and had been un-held in November 2015.  Second, the re-hold order came just before the case was to be argued on the March calendar.  Unique circumstances led to this procedure.  Enriquez was one of three consolidated cases.  Five days before the argument, the court was informed that Enriquez’s counsel had “suffered an injury that will interfere with her ability to present oral argument as scheduled.”  Counsel for a defendant in one of the other consolidated cases stepped up and agreed to argue the matter instead.  Enriquez’s counsel asked that the argument be continued, but, although her injury is probably sufficient cause for a continuance, the court instead severed Enriquez from the other two cases, re-docketed Enriquez under a separate case number, heard argument in the still-consolidated two other cases, and ordered Enriquez held pending a decision in the two cases.  The court probably doesn’t expect to see something like that happen again.

March 13, 2017

“As Justice Kathryn Werdegar prepares to retire, Brown will soon have a Democratic majority on state’s top court”

Maura Dolan reports on the front page of this morning’s Los Angeles Times:  Justice Werdegar “is viewed as the most moderate of the Republican appointees, a cerebral judge who in recent years was as likely to vote with the liberals as with the conservatives.  When she first joined the court, colleagues described her as a conservative, a label that turned out to be not quite right.  Although legally conservative — she tries not to expand the law beyond what is necessary to decide a dispute — she has been a force for civil rights on the court.”

March 12, 2017

One vote short of a Ninth Circuit ask

Occasionally, three justices will want to grant a petition for review, but cannot garner the fourth vote to hear the case.  Here’s a variation on that theme:  recently, one Ninth Circuit judge (actually, a Fourth Circuit judge sitting by designation) wanted to refer a state law question to the Supreme Court for decision under rule 8.548 of the California Rules of Court, but he couldn’t get either of his two colleagues to go along with the ask.  The case is Archer Western Contractors v. National Union Fire Ins. Co. of Pennsylvania and the issue was one of insurance law.

The Ninth Circuit’s requests for Supreme Court help are often in insurance cases (see, e.g., here, here, and here), but this one a majority of the Ninth Circuit panel felt comfortable handling themselves.