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, June 8, 2016. 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.
T.H. v. Novartis Pharmaceuticals Corp., S233898—Review Granted—June 8, 2016
The Court limited review to the following issue: May the brand name manufacturer of a pharmaceutical drug that divested all ownership interest in the drug be held liable for injuries caused years later by another manufacturer’s generic version of that drug?
Minors injured in utero through their mothers’ use of generic asthma medication brought action against the former manufacturer of a brand name medication and other drug companies, physicians, and hospital, alleging negligence, concealment, intentional misrepresentation, and negligent misrepresentation. The trial court sustained the former manufacturer’s demurrer without leave to amend, and the minors appealed.
Under the rationale of Conte v. Wyeth, Inc. (2008) 168 Cal.App.4th 89, the Court of Appeal, Fourth District, Division One, held in a published decision that the minors provided sufficient additional information on appeal to demonstrate they may amend their complaint to state a claim for negligent failure to warn and negligent misrepresentation based on acts or omissions by the former manufacturer before 2001, which allegedly caused or contributed to the minors’ injuries in 2007. The Court rejected both the former manufacturer’s invitation to follow other states’ authorities (which have held a brand-name manufacturer cannot be liable for an injury caused by a product other than its own), and the contention that Conte is no longer viable after the Supreme Court decision in O’Neil v. Crane Co. (2012) 53 Cal.4th 335. The court reversed and remanded with directions to enter a new order sustaining the demurrer with leave to amend the negligence and negligent misrepresentation causes of action.
Sweetwater Union School District v. Gilbane Building Company, S233526—Review Granted—June 8, 2016
This anti-SLAPP case presents the following issues: (1) Is testimony given in a criminal case by persons who are not parties in a subsequent civil action admissible in that action to oppose a special motion to strike? (2) Is such testimony subject to the conditions in Evidence Code section 1290 et seq. for receiving former testimony in evidence?
The Court of Appeal, Fourth District, Division One, held in a published decision that: (1) when considering anti-SLAPP motion, trial court is permitted to consider plea forms entered by individuals who were criminally prosecuted in connection with contracts ; (2) trial court was also permitted to consider grand jury exhibits and transcripts; (3) the plaintiff school district’s complaint arose from protected activity, thereby triggering the anti-SLAPP statute; (4) the defendant contractors did not concede the illegality of conduct alleged in complaint, and thus conduct did not lose protection of the anti-SLAPP statute on that basis; (5) evidence did not conclusively establish that the conduct at issue was illegal as a matter of law; but (6) the plaintiff district demonstrated a probability of prevailing against the defendant contractors, thereby defeating their anti-SLAPP motion.
Ayers v. Commission on Judicial Performance, S233333. The petitioner in this case is Ventura County Superior Court Judge Nancy Ayers. She challenged a decision by the Commission on Judicial Performance to issue an advisory letter—colloquially known as a “stinger” letter—to her for keeping a service dog she was training in her courtroom. The Supreme Court issued an alternative writ of mandate directing the Commission to withdraw the advisory letter or to show cause why the relief sought in the petition should not be granted.
Review Denied (with dissenting justices)