December 3, 2016

Trying to cut down on oral argument continuances

The dockets of the cases scheduled for argument on the Supreme Court’s January calendar reveal what looks like a new court policy, or actually a return to an old policy, but with a twist.

Two or three weeks before the court announced its calendar, the court sent an oral argument letter to counsel in each case.

The letter advised that the court could set the case for argument within the next few months, directed counsel to the court’s oral argument dates, and instructed them to “inform the court immediately” if there was good cause not to schedule argument for a particular day.  The letter went on to warn, “Once the court files an order setting this case for oral argument, that date will not be changed absent exceptional cause, such as a medical emergency.”

It used to be that the warning part of the letter was the court’s policy, but back then counsel didn’t get a warning letter.  More recently, however, it became almost routine for the court to continue oral arguments on an attorney’s request, even when the request was made after the calendar was announced.  Now, the court says it will be accommodating of counsel’s schedule, but only up to a point.  And the court is giving fair warning; you don’t have to rely on a a blog post for advice.  (The court has been sending somewhat similar notices of impending arguments in death penalty appeals (e.g., here), but the main purpose of those notices seems to be to advise counsel that the court will be expecting a “focus letter” — identifying the subject of counsel’s argument with a short statement of the issue — within 10 days of the scheduling of argument.)

Any early test of the new policy’s limits came in one January calendar case.  An attorney there sent a notice that she’d be unavailable January 3 through 6.  But she did not “inform the court immediately.”  Instead, the notice was filed 17 days after the court sent its warning letter.  The day after the notice’s filing, the court scheduled the case for a January 5 argument.

 

December 2, 2016

Supreme Court orders appellate division opinion published. Is that allowed?

Rule 8.1120 allows the Supreme Court, on request, to order an unpublished opinion to be published.  The court doesn’t do that often, because it will invariably grant a request only if recommended by the court that authored the opinion and because such a recommendation will be made only when the authoring court has lost jurisdiction to itself order publication.  (See, e.g., here.)

This week, the court granted a publication request on the authoring court’s recommendation.  That’s not a big deal, except for the fact that the authoring court was a superior court appellate division.  (The case is U.S. Financial, L.P. v. McLitus, an unlawful detainer action, and the newly published opinion is here.)  To our knowledge, publication requests usually (always?) have concerned Court of Appeal opinions.

We’ve previously questioned whether the state constitution authorizes the Supreme Court to depublish appellate division opinions, even though a statute and rule allow it.  The same uncertainty hangs over a publication order.

The constitution’s article VI, section 14 says, “The Legislature shall provide for the prompt publication of such opinions of the Supreme Court and courts of appeal as the Supreme Court deems appropriate” (emphasis added), but it doesn’t mention appellate division opinions.  It’s not a question whether the Supreme Court should have publication authority over appellate division opinions (I can think of no reason why not), but whether it actually has that power.

December 2, 2016

11-case January calendar announced

The Supreme Court announced its first calendar of 2017, and it’s an unusually large one for a January.

On January 4 and 5, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website):

Banning Ranch Conservancy v. City of Newport Beach:  (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?

Carmack v. Reynolds:  Does section 15306.5 of the California Probate Code impose 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 may the bankruptcy estate reach more than 25 percent under other sections of the Probate Code?  The Supreme Court is deciding this issue at the Ninth Circuit’s request.

Flethez v. San Bernardino County Employees Retirement Association:  If a retroactive award of service-connected disability retirement benefits is made in an administrative mandate proceeding, is prejudgment interest under Code of Civil Procedure section 3287 calculated from the day after the employee’s last day of regular compensation or the day on which the employee submitted the claim for the benefits?

People v. Gonzales:  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?

People v. Merritt:  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.)

People v. Brooks:  This is an automatic appeal from a July 2001 judgment of death.  The court’s website does not list issues for such appeals.

Perry v. Bakewell Hawthorne, LLC:  Does Code of Civil Procedure section 2034.300, which requires a trial court to exclude the expert opinion of any witness offered by a party who has unreasonably failed to comply with the rules for exchange of expert witness information, apply to a motion for summary judgment?  [Disclosure:  Horvitz & Levy filed an amicus curiae brief on behalf of the Association of Southern California Defense Counsel.]

People v. Garcia:  Are 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 – constitutional?

People v. Romanowski:  Does Proposition 47 (“the Safe Neighborhoods and Schools Act”), which reclassifies as a misdemeanor any grand theft involving property valued at $950 or less (Pen. Code, § 490.2), apply to theft of access card information in violation of Penal Code section 484e, subdivision (d)?

People v. Patterson:  Was defendant 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?

People v. Reese:  Did the trial court violate defendant’s constitutional right to equal protection of the laws when it denied defendant’s request for transcripts of the opening statements and closing arguments from defendant’s first trial, which ended in a mistrial?

December 2, 2016

Cell phone search, death penalty opinions filing Monday

On Monday morning, the Supreme Court will file opinions in People v. Macabeo, which was argued on the early-May calendar, and People v. Williams, which was argued on the early-September calendar.

Given that the Supreme Court is normally required to decide its cases within 90 days of oral argument, how is the Macabeo opinions just now filing, seven months after argument?  That’s explained here and here.

Macabeo raises an issue in the wake of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision about warrantless cell phone searches.  The questions presented are:  (1) May law enforcement officers conduct a search incident to the authority to arrest for a minor traffic offense, so long as a custodial arrest (even for an unrelated crime) follows?  (2) Did Riley v. California (2014) __ U.S. __ [134 S.Ct. 2473, 189 L.Ed.2d 430] require the exclusion of evidence obtained during the warrantless search of the suspect’s cell phone incident to arrest, or did the search fall within the good faith exception to the exclusionary rule (see Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419, 180 L.Ed.2d 285]) in light of People v. Diaz (2011) 51 Cal.4th 84?  After argument, the court asked for supplemental briefing regarding the effect on the case, if any, of People v. Robinson (2010) 47 Cal.4th 1104, 1124-1126, where the court held that an erroneous collection of the defendant’s DNA samples did not trigger the exclusionary rule.

Williams is an automatic appeal from a February 2005 judgment of death.

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

December 2, 2016

Summary of November 30, 2016 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, November 30, 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.

Review Granted

LTL Commercial v. Hammer IRP LTL Associates, S237689 – Review Granted and Held – November 30, 2016

In an unpublished opinion, the Court of Appeal, Second District, Division Two, affirmed summary judgment for a defendant developer in a negligence action brought by a property owner.  The Court of Appeal agreed that the claim was barred by the statute of limitations and two contractual releases.  The developer moved for more than $200,000 in attorneys’ fees, and the trial court denied that request.  Affirming the denial of the attorneys’ fee motion, the Court of Appeal ruled the developer’s successful invocation of an earlier settlement agreement and release as a defense to the plaintiff’s negligence claim did entitle the defendant to attorneys’ fees.  The court reasoned that, under the plain language of the settlement agreement’s attorneys’ fee provision, the defendant did not “initiate, commence or prosecute” any action or proceeding.

The Supreme Court granted review and ordered that further action be deferred pending the Court’s decision in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (S223536), which presents the following questions:  (1) Does the assertion of an agreement as an affirmative defense implicate the attorney fee provision in that agreement? (2) Does the term “action” or “proceeding” in Civil Code section 1717 and in attorney fee provisions encompass the assertion of an affirmative defense?

Review Denied (with dissenting justices)

None.

Depublished

None.

December 1, 2016

Supreme Court finds duty to protect third persons from take-home asbestos exposure

In Kesner v. Superior Court (consolidated with Haver v. BNSF Railway Company), the Supreme Court today holds that employers and landowners owe a duty of care to workers’ household members who are exposed to asbestos when the workers carry the asbestos home on their person or clothing.  The court’s unanimous opinion by Justice Goodwin Liu concludes that “[w]here it is reasonably foreseeable that workers, their clothing, or personal effects will act as vectors carrying asbestos from the premises to household members, employers have a duty to take reasonable care to prevent this means of transmission.”  [Disclosure:  Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC in the Kesner case.]

Just two weeks ago, when the court recognized a tort duty to third parties — in that case, a duty owed by HMO’s to emergency healthcare providers — it called such a duty “exceptional.”  In Kesner, however, the court views the duty as the general rule, not the exception.  The court says it is not “determin[ing] ‘whether a new duty should be created, but whether an exception to [the general rule of duty] . . . should be created.'”

The court  reverses the Second District, Division Five, and it vacates the opinion of the First District, Division Three, and remands for further consideration, but essentially agrees with that court’s decision.  The court also disapproves a 2012 decision by the Second District, Division Seven, and a 2009 opinion by the Second District, Division Eight.

December 1, 2016

Another petition for review comes up one vote short

Every once in a while, a petition for review comes really close to being granted, but can’t find a fourth vote.  (See here, here,and here.)  That happened again yesterday.

In People v. Superior Court (Tejeda), a 2-1 Court of Appeal grudgingly permitted the Orange County District Attorney to peremptorily disqualify a particular superior court judge.  The court ruled that way only because it felt itself bound to follow a 1977 Supreme Court decision, but it “question[ed] the wisdom” of the decision and “urge[d] the Supreme Court to revisit the issue of blanket papering.”  The Supreme Court almost took the advice.  It denied the petition for review, but Justices Kathryn Werdegar, Goodwin Liu, and Mariano-Florentino Cuéllar recorded votes to grant.

December 1, 2016

Supreme Court affirms death sentence for husband’s murder

In People v. Thompson, the Supreme Court today affirms the death penalty judgment against the defendant, who was convicted of murdering her husband for financial gain.  Among many other things, the court’s unanimous opinion — by Justice Kathryn Werdegar — holds that the defendant was not statutorily or constitutionally entitled to discovery from a co-defendant.  The court also found “unquestionably imprudent,” but harmless, the trial court’s remark to defendant’s attorney in front of the jury, “You are resting without calling your client?”

November 30, 2016

Asbestos, death penalty opinions filing tomorrow

Tomorrow morning, the Supreme Court will file its opinions in Kesner v. Superior Court, Haver v. BNSF Railway Company, and People v. Thompson, which were all argued on the early-September calendar.  [Disclosure:  Horvitz & Levy is appellate counsel for real party in interest Pneumo Abex LLC in the Kesner case.]

In Kesner and Haver, which were consolidated for argument and opinion, the court will decide:  if an employer’s business involves either the use or the manufacture of asbestos-containing products, does the employer owe a duty of care to members of an employee’s household who could be affected by asbestos brought home on the employee’s clothing?

Thompson is an automatic appeal from a June 1993 judgment of death.

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

November 29, 2016

Summary of November 22, 2016 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 Tuesday, November 22, 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.

Review Granted

Borisoff v. Pullman Group, S237730 – Review Granted and Held – November 22, 2016

In an unpublished opinion, the Court of Appeal, Second District, Division One, held that a trial court must in the first instance determine whether a valid arbitration agreement exists; that determination is not a matter for the arbitrators.  The court also concluded that the arbitration award under review was unenforceable because it would violate the law and contravene public policy; provisions of the contract that was construed in the arbitration improperly commercialized the practice of law and authorized the practice of law without a license.

The Supreme Court granted review and ordered briefing deferred pending the decision in Sheppard, Mullin, Richter & Hampton, LLP v. J-M Manufacturing Co., Inc. (S232946), which presents the following issues:  (1) May a court rely on non-legislative expressions of public policy to overturn an arbitration award on illegality grounds?  (2) Can a sophisticated consumer of legal services, represented by counsel, give its informed consent to an advance waiver of conflicts of interest?  (3) Does a conflict of interest that undisputedly caused no damage to the client and did not affect the value or quality of an attorney’s work automatically (i) require the attorney to disgorge all previously paid fees, and (ii) preclude the attorney from recovering the reasonable value of the unpaid work?

Marin Association of Public Employees v. Marin County Employees’ Retirement Association, S237460 – Review Granted and Held – November 22, 2016

In a published opinion, Marin Association of Public Employees v. Marin County Employees’ Retirement Association (2016) 2 Cal.App.5th 674, the Court of Appeal, First District, Division Two, affirmed the judgment in an action for writ of administrative mandate, rejecting an argument that a statutory change in a pension law unconstitutionally impaired employees’ contracts.

The Supreme Court granted review and ordered briefing deferred pending the decision of the Court of Appeal, First Appellate District, Division Four, in Alameda County Deputy Sheriff’s Assn. v. Alameda County Employees’ Retirement Assn. (A141913), or further order of the Court.

Review Denied (with dissenting justices)

None.

Depublished

Coastal Hills Rural Preservation v. County of Sonoma, S237655 – Review Granted and Transferred; Depublished – November 22, 2016

A citizens’ group challenged a proposed expansion of a retreat center that had been approved by the County of Sonoma.  The group petitioned for a writ of mandate, arguing that a formal environmental impact report was required.  The trial court denied the petition, and in a published opinion, Coastal Hills Rural Preservation v. County of Sonoma (2016) 2 Cal.App.5th 1234, the Court of Appeal, First District, Division One, affirmed.

The Supreme Court granted review and transferred the case to the Court of Appeal for reconsideration in light of Friends of the College of San Mateo Gardens v. San Mateo County Community College District (2016) 1 Cal.5th 937, 957-959, fn. 6, and California Code of Regulations, title 14, section 15384.  The Court also granted a request for depublication of the Court of Appeal opinion.

November 23, 2016

Supreme Court case on hold for Court of Appeal decision in another case

Yesterday, the Supreme Court issued an unusual grant-and-hold order, waiting to act until after the Court of Appeal decides a different case.

Under rule 8.512(d)(2), the court can grant review of a Court of Appeal decision and defer all action in the case “until the court disposes of another matter or pending further order of the court.”  A grant-and-hold order is typically made when the Supreme Court has already granted review in another case — the lead case — raising the same or a similar issue.  The grant-and-hold case then normally sits at the court until the lead case is decided, at which time the grant-and-hold case is returned to the Court of Appeal for reconsideration or the Supreme Court dismisses review.

The Supreme Court filed six of those “typical” grant-and-hold orders yesterday.  (There has been a marked increase in those orders in criminal cases since a policy change last year.)

The grant-and-hold order in the high-profile public-pension case of Marin Association of Public Employees v. Marin County Employees’ Retirement Association, however, is anything but typical.  Instead of deferring further action until the Supreme Court “disposes of another matter,” the court said the case would stay on the shelf pending a decision by the Court of Appeal in a different pension case — Alameda County Deputy Sheriff’s Association v. Alameda County Employees’ Retirement Association — or “pending further order of the court.”

Alameda County will be decided by a different division of the First District Court of Appeal than the one that decided Marin Association.  Under a recent rule change, the Alameda County opinion can cite the Court of Appeal’s Marin Association opinion despite review having been granted.  The Supreme Court might thus be interested in seeing the Alameda County court’s critique of the Marin Association opinion.

Once the Alameda County case is decided (oral argument has not been watchingscheduled yet, but the case has been fully briefed for 10 months), the Supreme Court is likely to grant review there, too.  It could then un-hold Marin Association and make it the lead case, it could make Alameda County the lead case and continue to hold Marin Association, or it could order briefing and argument in both cases.  In any event, the justices of the Alameda County court will certainly be aware that the Supreme Court is keeping its eyes on them.

November 22, 2016

Registration open for Supreme Court conference

You can now register for the all-day January 13, 2017, conference on the California Supreme Court.  The 2106-scoca-ad-10-375x16-5_fa-copyconference will include past and present court members as speakers — former Justice Joseph Grodin, Chief Justice Tani Cantil-Sakauye, and Justices Kathryn Werdegar, Carol Corrigan, and Leondra Kruger.  Also participating will be Horvitz & Levy partner Jeremy Rosen.

The conference is sponsored by Berkeley Law’s California Constitution Center, in partnership with the Hastings Law Journal, the Bar Association of San Francisco, and the Institute of Governmental Studies.  It will be held at UC Hastings College of Law.

November 21, 2016

Salespeople of dual agent real estate broker owe fiduciary duties to both buyer and seller

In Horiike v. Coldwell Banker Residential Brokerage, the Supreme Court today holds that when a real estate broker represents both the buyer and the seller in a house sale, not only does the broker owe fiduciary duties to both sides, so do each of the broker’s salespeople who are working on the transaction.  [Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]  The unanimous opinion by Justice Leondra Kruger doesn’t establish a common law duty.  Rather, it’s a statutory interpretation case.

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

November 19, 2016

Summary of November 16, 2016 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, November 16, 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.

Review Granted

None.

Amicus Briefing Invited

Bianka M. v. Superior Court, S233757 – Amicus briefing invited — November 16, 2016

This case, in which review was granted in May 2016, presents the following issue:  Did the trial court err in denying petitioner’s request for an order making findings concerning Special Immigrant Juvenile status (8 U.S.C. § 1101(a)(27)(J); see Code Civ. Proc., § 155) and placing her in her mother’s sole legal and physical custody?

The court invited L. Rachel Lerman of Barnes & Thornburg LLP, to brief and argue this case, as amicus curiae, in support of the positions that (1) a superior court may deny a child’s request for Special Immigrant Juvenile status findings on the ground that the request was not made during an ongoing, bona fide proceeding relating to child welfare; and (2) a superior court may deny a child’s request for special immigrant juvenile status findings on the ground that the parentage of the child’s noncustodial alleged parent has not been adjudicated.

Review Denied (with dissenting justices)

None.

Depublished

None.

November 18, 2016

A friend in need

In Bianka M. v. Superior Court, the Supreme Court is reviewing a Court of Appeal decision upholding a superior court’s refusal to make orders and findings necessary for a 13-year-old girl to obtain federal special immigrant juvenile status, which protects abused, neglected, and abandoned undocumented children.  (Bianka M. v. Superior Court (2016) 245 Cal.App.4th 406 [199 Cal.Rptr.3d 849].)

After Bianka’s counsel filed her opening brief on the merits, however, no party — or anyone else — stepped forward to defend the Court of Appeal’s opinion.  (Bianka’s mother is technically an adverse party, but she supports Bianka’s writ petition.)  That’s a very rare situation.  There’s almost always someone who is more than happy to explain why the Court of Appeal got it right.

The Supreme Court doesn’t like one-sided briefing, so it went looking for help, which it found in Rachel Lerman of Barnes & Thornburg LLP (and former Horvitz & Levy attorney).  Yesterday, the court designated Lerman as a court-appointed amicus curiae and invited her to brief and argue “in support of the positions that (1) a superior court may deny a child’s request for special immigrant juvenile status findings on the ground that the request for such findings was not made during an ongoing, bona fide proceeding relating to child welfare; and (2) a superior court may deny a child’s request for special immigrant juvenile status findings on the ground that the parentage of the child’s noncustodial alleged parent has not been adjudicated.”

Lerman is more than just an amicus curiae, however.  The court said she “shall be treated as the respondent and her brief shall be treated as the answering brief.”

November 18, 2016

Real estate broker opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Horiike v. Coldwell Banker Residential Brokerage, which was argued on the early-September calendar.  [Disclosure:  Horvitz & Levy is lead appellate counsel for Horiike.]

Horiike will answer this question:  When the buyer and the seller in a residential real estate transaction are each independently represented by a different salesperson from the same brokerage firm, does Civil Code section 2079.13, subdivision (b), make each salesperson the fiduciary to both the buyer and the seller with the duty to provide undivided loyalty, confidentiality, and counseling to both?

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

November 17, 2016

Temporary stay temporarily denied in Prop. 66 challenge case

In the original proceeding filed to challenge Proposition 66, the Supreme Court this afternoon declined to prevent the Secretary of State from certifying the ballot measure’s election results or to stay enforcement of the likely new law, although the denial of the stay is temporary.  The court said that a stay before election results are certified is “unnecessary” and that the challengers can renew their request for a stay of enforcement once the certification occurs.  Election results should be certified by December 16.

The court’s order suggests that the court believes Proposition 66 will not be effective until the Secretary of State certifies its passage (the Constitution provides, however, “An initiative statute . . . approved by a majority of votes thereon takes effect the day after the election”) and that the court will not even decide whether it will hear the challenge until after the certification.

Chief Justice Tani Cantil-Sakauye and Justice Ming Chin are recused and did not participate in today’s order.

November 16, 2016

Judicial Council members Cantil-Sakauye and Chin recused from Prop. 66 challenge

In the writ proceeding started the day after the election to challenge Proposition 66, the speed-up-the-death-penalty initiative that appears to have been approved by the voters (as of this evening, it is leading by over 270,000 votes), the Supreme Court today entered an order announcing the recusal of Chief Justice Tani Cantil-Sakauye and Justice Ming Chin.

The new law requires action by the Judicial Council, so the petition in Briggs v. Brown names the Council as one of four respondents.  The Chief Justice and Justice Chin are the Council’s Chair and Vice-Chair, respectively.  Today’s order says that they “are disqualified from participating in the matter under Canon 3E(5)(e)(i) of the California Code of Judicial Ethics.”  That provision states that an appellate justice is disqualified if “[t]he justice . . . is a party or an officer, director, or trustee of a party to the proceeding.”

Supreme Court justices usually do not explain their reasons for recusing or not recusing themselves.  We probably could have figured out the reason in this case, but it’s nice not to have to speculate.

The recusals won’t necessarily require the immediate appointment of any Court of Appeal justices to serve temporarily on the Supreme Court.  At this initial stage, when the court is deciding whether to hear the writ petition on its merits, section IV.J. of the court’s Internal Operating Practices and Procedures provides for pro tem appointments only when “four justices cannot agree on a disposition.”  If the court does take the case, then two Court of Appeal justices will take the Chief’s and Justice Chin’s places.

 

November 14, 2016

HMO’s have tort duties to third parties for emergency care payment

In Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., the Supreme Court today holds that, although health maintenance organizations can delegate their responsibility to pay for their members’ emergency medical treatment, they might still be on the hook financially if the delegation was or is negligently made to an entity that cannot make the payment.  The court’s unanimous opinion by Chief Justice Tani Cantil-Sakauye concludes this is an appropriate case to impose an “exceptional” common law tort duty to third parties.  Among other things, the court states, “Forcing others to provide professional services for the benefit of one’s own customers, without any reasonable prospect of payment, is morally blameworthy.”

The court affirms the Second District, Division Three, Court of Appeal.  It disapproves a 2003 decision by the Fourth District, Division One, and a 2001 opinion by the Fourth District, Division Two.

November 11, 2016

Our new artwork mirrors the Supreme Court’s, recognizes our appellate districts

The top of this blog has long featured part of the mural The Eastern Sierra in Fall, by noted Marin County artist Willard Dixon.  The mural is prominent behind the Supreme Court’s bench in its San Francisco courtroom.

When we recently moved our office to Burbank and built a moot court room, we were looking for horvitz-levy-1appropriate artwork.  Luckily, we were able to purchase from Mr. Dixon the original nearly ten-foot long study that he painted as his model for the Supreme Court mural.  It is now hanging in our moot courtroom, behind the bench for the “justices.”  Above the Law (the other ATL blog) wrote about the painting today.

We have other appellate-related artwork throughout the office as well.  There are paintings and photographs that represent each Court of Appeal location — San Francisco, Los Angeles, Ventura, Sacramento, San Diego, Riverside, Santa Ana, Fresno, and San Jose.

November 10, 2016

Summary of November 9, 2016 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, November 9, 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.

Review Granted

Hayward v. Superior Court, S237174 — Review Granted — November 9, 2016

The case includes the following issues:  (1) Does a party waive disqualification of a temporary judge when counsel is aware of a potential conflict and proceeds with the temporary judge presiding?  (See People v. Johnson (2015) 60 Cal.4th 966.)  (2) May an appellate court set aside a settlement agreement on the ground that a disqualified judge’s rulings “tainted” the settlement as a matter of law when factual questions exist concerning the extent to which those rulings influenced a party’s decision to settle?

In a long 2-1 published opinion, Hayward v. Superior Court (2016) 2 Cal.App.5th 10, the Court of Appeal, First District, Division Two, held:  (1) the rulings and orders issued by an attorney acting as a temporary judge are all void and must be vacated; (2) a settlement agreement signed by the parties prior to disqualification of the temporary judge was tainted by the disqualifying conduct of the temporary judge and therefore cannot be enforced and; (3) the temporary judge’s verbal disclosure to a party of the disqualifying relationship does not waive the disqualification; waiver had to recite the basis for the disqualification and be signed by the parties and their attorneys; and (4) the conduct of the disqualified temporary judge did not taint the proceedings before the superior court judge who replaced her.

Ace American Ins. Co. v. Fireman’s Fund Ins. Co., S237175 — Review Granted — November 9, 2016

The case presents this issue:  When a primary insurer unreasonably refuses to settle an underlying action against its insured within policy limits and the underlying action later settles for the full amount of the primary policy as well as the full amount of an excess insurer’s policy, can the excess insurer maintain an equitable subrogation action against the primary insurer to recover the amount it expended in settlement?

In a published opinion, Ace American Insurance Company v. Fireman’s Fund Insurance Company (2016) 2 Cal.App.5th 159, the Court of Appeal, Second District, Division Four, held that because the excess insurer alleged it was required to contribute to the settlement of the underlying case due to the primary insurer’s failure to reasonably settle the case within policy limits, the lack of an excess judgment against the insured in the underlying case did not bar an action for equitable subrogation and breach of the duty of good faith and fair dealing.

Review Denied (with dissenting justices)

None.

Depublished

None.

 

November 10, 2016

Prop. 66 challenged in Supreme Court [Updated x2]

Proposition 66, the speed-up-the-death-penalty initiative (see, most recently, here), is currently on track for approval, leading by about 150,000 votes and 1.8 percentage points.  Yesterday, the day after the election, two opponents of the initiative — former California Attorney General John Van de Kamp and former death penalty supporter Ron Briggspetitioned the Supreme Court to invalidate the law.

The petition argues Proposition 66 improperly interferes with the habeas corpus jurisdiction of California’s courts, it violates the separation of powers doctrine, and it violates the state constitution’s single-subject rule.  The petitioners ask the Supreme Court to stay certification and enforcement of the proposition until there is a determination whether the new law can stand.  Sacramento’s District Attorney calls the petition “frivolous.”

Just a guess, but, because it’s not yet certain that Proposition 66 has passed, and because the Secretary of State has until December 16 to certify the election results, the Supreme Court might stay enforcement of the law and put the case on hold until the final vote is certified next month.  If the proposition does officially pass, look for the court to issue an order to show cause, meaning the court will decide the writ petition on its merits after full briefing and an oral argument.

[November 16 update:  Judicial Council members Cantil-Sakauye and Chin recused from Prop. 66 challenge.]

[November 17 update:  Temporary stay temporarily denied in Prop. 66 challenge case.]

November 10, 2016

Prop. 47 resentencing petition doesn’t change plea bargain

In Harris v. Superior Court, the Supreme Court today holds that a defendant who petitions for resentencing under Proposition 47, after having been sentenced under a plea bargain before the proposition became law, does not risk having the plea bargain undone.  The court’s unanimous opinion, written by Justice Ming Chin, states that “[t]he resentencing process that Proposition 47 established would often prove meaningless if the prosecution could respond to a successful resentencing petition by withdrawing from an underlying plea agreement and reinstating the original charges filed against the petitioner.”

The court reverses a 2-1 judgment by the Second District, Division Five, Court of Appeal.

November 10, 2016

HMO payment opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc., which was argued on the early-September calendar.

The case raises these issues:  (1) Does the delegation — by a health care service plan (HMO) to an independent physicians association (IPA), under Health and Safety Code section 1371.4, subdivision (e) — of the HMO’s responsibility to reimburse emergency medical service providers for emergency care provided to the HMO’s enrollees relieve the HMO of the ultimate obligation to pay for emergency medical care provided to its enrollees by non-contracting emergency medical service providers, if the IPA becomes insolvent and is unable to pay?  (2) Does an HMO have a duty to emergency medical service providers to protect them from financial harm resulting from the insolvency of an IPA which is otherwise financially responsible for the emergency medical care provided to its enrollees?

In February, the court invited the Department of Managed Health Care (DMHC) to serve and file an amicus curiae brief expressing its views on the following two-part question:  In light of the Knox-Keene Health Care Service Plan Act of 1975 (Health & Saf. Code, § 1340 et seq.) and the DMHC’s implementing regulations, does a health care service plan owe a common law tort duty of care to non-contracting emergency service providers, who provide emergency care on a statutorily compelled basis to the health plan’s enrollees, in either (1) making or (2) continuing a delegation of its financial responsibility for payment of the providers’ claims to an individual practice association?

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

November 9, 2016

Prop. 47 opinion filing tomorrow

Tomorrow morning, the Supreme Court will file its opinion in Harris v. Superior Court, which was argued on the October calendar.  The case raises these issues:  (1) Are the People entitled to withdraw from a plea agreement for conviction of a lesser offense and to reinstate any dismissed counts if the defendant files a petition for recall of sentence and reduction of the conviction to a misdemeanor under Proposition 47?  (2) If the defendant seeks such relief, are the parties returned to the status quo with no limits on the sentence that can be imposed on the ground that the defendant has repudiated the plea agreement by doing so?

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

November 7, 2016

Supreme Court makes AG involuntary two-time loser as it holds a petitioner can paper a judge soon after filing a habeas corpus petition

In Maas v. Superior Court, the Supreme Court today holds that a habeas corpus petitioner “who requests the name of the judge assigned to examine his or her habeas corpus petition is entitled to notice of that assignment, and also is entitled to peremptorily challenge the assigned judge, so long as all of the procedural requirements of [Code of Civil Procedure] section 170.6 have been satisfied, including the requirement that the assigned judge not have participated in the petitioner’s underlying criminal action.”  The court’s unanimous opinion is written by Chief Justice Tani Cantil-Sakauye.

Because the Supreme Court had taken the unusual step of granting review on its own motion, we were hoping the opinion might disclose what had attracted the court’s attention.  The opinion doesn’t do that, however.  And the mystery behind the own-motion review is compounded by the fact that the court affirms the Court of Appeal (Fourth District, Division One), and it also approves of another Court of Appeal opinion (a 1980 opinion from groundhog-daythe First District, Division Three).  No prior decisions are reversed, disapproved, or overruled.

You’ve got to have a little sympathy for the Attorney General in this case.  She lost in the Court of Appeal in a published opinion and, even though she decided not to challenge the decision in the Supreme Court, the court took the case anyway, dragging the Attorney General in to hand her a loss once again.  Years ago, I lost a case in both the Court of Appeal and the Supreme Court, but at least I asked for it by petitioning for review.  In this case, it would have been appropriate for the court to not file the opinion until February 2.

November 4, 2016

No conference held the week of October 31, 2016

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

November 4, 2016

Habeas corpus judge papering opinion filing Monday; first opinion in seven weeks

Monday morning, the Supreme Court will file its opinion in Maas v. Superior Court, which was argued on the early-September calendar.

Maas raises a procedural issue:  Does Code of Civil Procedure section 170.6 permit a peremptory challenge to be asserted, before an order to show cause has issued, against a judge who is assigned to assess a petition for writ of habeas corpus?  But, the case’s route to the Supreme Court is of procedural interest itself; uncommonly, review was granted on the court’s own motion.

Maas will be the first Supreme Court opinion in seven weeks.  That drought is normal for this time of year.

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

November 1, 2016

Two Chiefs appearing at California Supreme Court Historical Society book event

Chief Justice Tani Cantil-Sakauye and former Chief Justice Ronald George will be participating in a panelCSCHS-2016-Newsletter-Spring-Summer_Page_01 discussion in two weeks at an event to celebrate a new book on the history of the California Supreme Court.  The book was recently published by the California Supreme Court Historical Society [disclosure:  I serve on the Society’s board], which previewed the book in its latest newsletter.

The event will also honor former Chief Justice Malcolm Lucas, who died in September.  The full court will remember Lucas before the start of its December calendar.

You can register for the Society’s November 15 event in San Francisco here.

October 31, 2016

The last death penalty appeal, or just another one before a flood, or business as usual.

Tomorrow morning, the Supreme Court will hear argument in People v. Winbush, an automatic appeal from a July 2003 death penalty judgment.  It could be an historic proceeding; not because of the argument itself, but because of its timing.  Winbush will be the last death penalty argument the court will hear before the election next week at which voters will weigh in on two competing death penalty initiatives, either one of which could have a dramatic effect on the Supreme Court’s docket.

Proposition 62 would end the death penalty in California, convert all existing death sentences to life without parole, and give the Supreme Court the discretion to transfer all pending death penalty appeals and habeas corpus petitions to the Court of Appeal or superior court.  It would open up a lot of space on the high court’s docket, removing a substantial number of cases which the court now must hear (the death penalty appeals) or at least work up (the habeas petitions), cases which almost always take the most court resources to decide.

Proposition 66, on the other hand, would inundate the Supreme Court with death penalty appeals and habeas petitions, likely leaving the court with time for little else.  Among other provisions, the initiative would require that, once the prescribed new system is in place, “the state courts shall complete the state appeal and the initial state habeas corpus review in capital cases” within five years of entry of judgment.

Four years ago, when another death penalty abolition initiative was on the ballot, we identified a different case as the potential last death penalty appeal.  The initiative lost by about four percentage points, however.

The court has scheduled two death penalty appeals for its post-election December calendar.  If Proposition 62 takes effect, the court could transfer those appeals (and Winbush and the undecided automatic appeals from the early-September and the October calendars, for that matter) to the Court of Appeal.  It’s quite possible, however, that, because those cases are mostly worked up already, the court will decide the appeals without reaching any penalty phase issues, issues which would be mooted by the death penalty’s demise.  But if Proposition 66 prevails, and survives constitutional challenge, Winbush and the two December cases would likely be among the last before a flood of death penalty direct appeals and habeas petitions inundates the court.  If neither initiative passes, things will continue as before, just like four years ago.

Related post:  California Academy of Appellate Lawyers opposes Prop. 66.

October 28, 2016

Summary of October 26, 2016 conference report for civil cases

In its conference on Wednesday, October 26, 2016, the Court granted no petitions for review in civil cases, no civil petitions were denied with dissenting justices, and no civil opinions were ordered published or depublished.

October 27, 2016

December calendar will have nine cases, tribute to Chief Justice Lucas

The Supreme Court announced its December calendar today.  There will be nine oral arguments, but first there will be a tribute to former Chief Justice Malcolm Lucas, who died last month.

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

People v. Superior Court (Morales):  Did the superior court have jurisdiction to order various entities to preserve materials that might at a later date be included in a motion for post-conviction discovery under Penal Code section 1054.9?  This is the case in which a Court of Appeal justice suggested at the oral argument that the Supreme Court should “clean[ ] up their own mess” on the issue.

People v. Sivongxxay:  This is an automatic appeal from an April 1999 judgment of death.  The court’s website does not list issues for such appeals.  However, the court early last year asked for supplemental briefing on this question:  If the trial court fails to obtain a capital defendant’s separate waiver of his right to a jury determination of the special circumstance allegation, does that failure compel automatic reversal of the special circumstance finding?  (See Ring v. Arizona (2002) 536 U.S. 584; Neder v. United States (1999) 527 U.S. 1; People v. Sandoval (2007) 41 Cal.4th 825.)  Argument in the case was continued from the November calendar.

People v. Delgado:  This is an automatic appeal from a June 2000 judgment of death.  The court’s website does not list issues for such appeals.

City of San Jose v. Superior Court:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?  Like Sivongxxay, the argument in this case was continued from the November calendar.

Central Coast Forest Association v. California Fish and Game Commission:  The court limited review to this issue — Under the California Endangered Species Act, Fish and Game Code section 2050 et seq., may the Fish and Game Commission consider a petition to delist a species on the ground that the original listing was in error?  If so, does the petition at issue here contain sufficient information to warrant the Commission’s further consideration?  This case has been on the court’s docket for quite some time; review was granted in February 2013.

J.M. v. Huntington Beach Union High School District:  Must a claimant under the Government Claims Act file a petition for relief from Government Code section 945.4’s claim requirement, as set forth in Government Code section 946.6, if he has submitted a timely application for leave to present a late claim under Government Code section 911.6, subdivision (b)(2), and was a minor at all relevant times?

McGill v. Citibank, N.A.:  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?  Argument in this case was continued from the October calendar.
[Justice Carol Corrigan is recused.  Fourth District, Division One, Court of Appeal Justice Judith Haller will be sitting pro tem.]
[Disclosure:  Horvitz & Levy filed an amicus brief in this case on behalf of the Association of Southern California Defense Counsel.]

Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc.:  (1) In the context of competitive bidding on a public works contract, may the second lowest bidder state a claim for intentional interference with prospective economic advantage against the winning bidder based on an allegation that the winning bidder did not fully comply with California’s prevailing wage law after the contract was awarded?  (2) To state a cause of action for intentional interference with prospective economic advantage, must the plaintiff allege that it had a preexisting economic relationship with a third party with probable future benefit that preceded or existed separately from defendant’s interference, or is it sufficient for the plaintiff to allege that its economic expectancy arose at the time the public agency awarded the contract to the low bidder?

People v. Hall:  (1) Are probation conditions prohibiting defendant from:  (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague?  (2) Is an explicit knowledge requirement constitutionally mandated?

October 25, 2016

Summary of October 19, 2016 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, October 19, 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.

Review Granted

In Re Ana C., S237208 – Review Granted and Held – October 19, 2016

The Supreme Court ordered briefing deferred in this juvenile wardship proceeding pending decision in People v. Hall, S227193, which presents the following issues: (1) Are probation conditions prohibiting defendant from: (a) “owning, possessing or having in his custody or control any handgun, rifle, shotgun or any firearm whatsoever or any weapon that can be concealed on his person”; and (b) “using or possessing or having in his custody or control any illegal drugs, narcotics, narcotics paraphernalia without a prescription,” unconstitutionally vague? (2) Is an explicit knowledge requirement constitutionally mandated?

In a published decision, In re Ana C. (2012) 204 Cal.App.4th 1317, the Court of Appeal, Second District, Division Eight, held: (1) the defendant’s cohabitant’s daughter was competent to testify about sexual abuse; (2) evidence that the defendant sexually abused the cohabitant’s daughter supported dependency jurisdiction over the children that lived with the defendant; and (3) evidence that defendant sexually abused the cohabitant’s daughter did not support dependency jurisdiction over an adult daughter that did not live with the defendant.

Certified Question of State Law Accepted

Liberty Surplus Insurance v. Ledesma & Meyer Construction, S236765 – Request to Answer a Question of State Law Granted – October 19, 2016

The Supreme Court granted the Ninth Circuit’s request under California Rules of Court, rule 8.548, to answer the following certified question of state law:

“Whether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”

Review Denied (with dissenting justices)

None.

Depublished

None.

October 19, 2016

Supreme Court agrees to answer Ninth Circuit’s insurance question

The Supreme Court today agreed to answer the Ninth Circuit’s question in Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc.

The Ninth Circuit’s question is “[w]hether there is an ‘occurrence’ under an employer’s commercial general liability policy when an injured third party brings claims against the employer for the negligent hiring, retention, and supervision of the employee who intentionally injured the third party.”  The case arises from claims of sexual abuse of a middle school student.

October 14, 2016

Summary of October 12, 2016 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, October 12, 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.

Review Granted

Montrose Chemical Corporation of California v. Superior Court (Canadian Universal Insurance Company) – S236148- Review Granted and Transferred- October 12, 2016

This is a writ proceeding about which little information is available online.  It might have arisen from longstanding litigation to determine whether several insurers are obligated to defend and indemnify their insured in three groups of environmental contamination lawsuits involving DDT.  (See Montrose Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287; Montrose Chemical Corp. v. Superior Court (1994) 25 Cal.App.4th 902.)  The Court of Appeal, Second District, Division Three, summarily denied petitioner Montrose Chemical Corporation’s petition for writ of mandate.  The Supreme Court granted review and transferred the matter to the Court of Appeal “with directions to vacate its order denying mandate and to issue an order directing respondent Superior Court of Los Angeles County to show cause why the relief sought in the petition should not be granted.”

Certified Questions of State Law – Questions Restated

Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, S236177- Certified Questions of State Law Modified – October 12, 2016

As we noted last month, the United States Court of Appeals for the Second Circuit asked the Supreme Court to decide questions of California law. The court ordered briefing deferred pending a determination whether to restate the questions presented.

In its conference on October 12, the Court ordered the questions presented restated as follows:

(1) When two primary liability insurers agree that their policies cover the same loss, may the primary insurer whose policy contains an “other insurance” clause (stating that its insurance is excess over any “other insurance or . . . self-insurance plan that covers a loss on the same basis”) enforce that clause in an action for equitable contribution brought by the primary insurer who defended and settled the insured’s claim and whose policy does not contain an other-insurance clause?

(2) In the same equitable contribution action described in Issue 1, when the amount paid by the primary insurer that settled the claim exceeds the non-settling primary insurer’s liability policy limits, what is the effect, if any, of the non-settling insurer’s “limits reduction” clause (stating that “[a]ll payments made under any local policy issued to [the insured] by us or any other insurance company will reduce the Limits of Insurance of this policy”)?

Review Denied (with dissenting justices)

None.

Depublished

None.

October 11, 2016

SCOTUS denies cert of Supreme Court’s tax compact decision

At the end of last year, the Supreme Court unanimously held in Gillette Company v. Franchise Tax Board that the California Legislature validly precluded multistate businesses from using an apportionment election option under the Multistate Tax Compact, which California had earlier adopted.  At least one commentator didn’t like the opinion.  Neither did Gillette, which asked the U.S. Supreme Court to hear the case.  Today, the high court denied certiorari.

October 7, 2016

No conference held the week of October 3, 2016

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

October 6, 2016

November calendar in Sacramento has eight cases [UPDATED]

The Supreme Court today announced its November calendar.  Arguments will be in Sacramento.

On November 1 and 2, the court will hear the following cases (with the issue presented as stated on the court’s website):

People v. Corpening: Did Penal Code section 654 bar the imposition of sentence for both robbery and carjacking when the two crimes were accomplished by a single act?

People v. Sivongxxay:  This is an automatic appeal from an April 1999 judgment of death.  The court’s website does not list issues for such appeals.  However, the court early last year asked for supplemental briefing on this question:  If the trial court fails to obtain a capital defendant’s separate waiver of his right to a jury determination of the special circumstance allegation, does that failure compel automatic reversal of the special circumstance finding?  (See Ring v. Arizona (2002) 536 U.S. 584; Neder v. United States (1999) 527 U.S. 1; People v. Sandoval (2007) 41 Cal.4th 825.)

People v. Winbush:  This is an automatic appeal from a July 2003 judgment of death.  The court’s website does not list issues for such appeals.  Argument in the case was continued from the September calendar.

Association of California Insurance Companies v. Jones:  (1) Does the Unfair Insurance Practices Act (Ins. Code, § 790, et seq.) give the Insurance Commissioner authority to promulgate a regulation that sets forth requirements for communicating replacement value and states that noncompliance with the regulation constitutes a misleading statement, and therefore an unfair trade practice, for purposes of the act?  (2) Does the Insurance Commissioner have the statutory authority to promulgate a regulation specifying that the communication of a replacement cost estimate that omits one or more of the components in subdivisions (a)-(e) of section 2695.183 of title 10 of the California Code of Regulations is a “misleading” statement with respect to the business of insurance? (Cal. Code of Regs., tit. 10, § 2695.183, subd. (j).)  Argument in the case was continued from the October calendar, which concluded today.

City of San Jose v. Superior Court:  Are written communications pertaining to city business, including email and text messages, which (a) are sent or received by public officials and employees on their private electronic devices using their private accounts, (b) are not stored on city servers, and (c) are not directly accessible by the city, “public records” within the meaning of the California Public Records Act?

Barry v. State Bar of California:  If the trial court grants a special motion to strike under Code of Civil Procedure section 425.16 on the ground that the plaintiff has no probability of prevailing on the merits because the court lacks subject matter jurisdiction over the underlying dispute, does the court have the authority to award the prevailing party the attorney fees mandated by section 425.16, subdivision (c)?  This is a case in which the court granted relief to file a late petition for review.

Kabran v. Sharp Memorial Hospital:  Are the time constraints in California Code of Civil Procedure section 659a jurisdictional such that a court cannot consider late-filed documents?

People v. White:  Was defendant properly convicted of both rape of an intoxicated person and rape of an unconscious person for a single act of sexual intercourse?

[October 27 update:  The November calendar is down to six cases after the court continued to the December calendar arguments in the Sivongxxay and City of San Jose cases.]

October 3, 2016

Major national appellate summit to be held in Philadelphia next month

The Appellate Judges Education Institute (AJEI) is holding its thirteenth annual nationwide appellate Summit at the Loews Philadelphia Hotel in Philadelphia, Pennsylvania, on November 10 through 13, 2016. The summit is co-sponsored by the Appellate Judges Conference of the ABA and its constituent organizations, the Council of Appellate Lawyers and the Council of Appellate Staff Attorneys.  This year’s summit has already garnered much advance interest, including from nationally known appellate blogger Howard Bashman.

This year, as in previous years, the four day gathering will offer attendees some of the best appellate practice-oriented CLE available anywhere. The Summit will include a conversation with Supreme Court Justice Elena Kagan, as well as programs on such topics such as appellate writing, judicial decision making, the impact of changing technology on appellate practice, and canons of construction. In addition, attendees can look forward to Dean Erwin Chemerinsky’s engaging review of the U.S. Supreme Court’s recent decisions and programs on a host of other subjects of great interest to appellate lawyers, judges, and staff attorneys. Check out the Summit’s program for a complete overview of the available appellate CLE opportunities and registration information.

In addition to excellent speakers and programs, there will be numerous social events, including an opening night cocktail reception at the National Constitution Center and off-site tours of America’s first capital, as well as breakfasts, lunches, cocktail mixers, a Summit dinner, and dine-arounds. These events will provide plentiful opportunities to meet appellate judges and lawyers from around the country. In past years, approximately 100 appellate judges, 100 appellate attorneys, and 75 appellate staff attorneys have attended the Summit. (Full disclosure: Horvitz & Levy partner Brad Pauley is Immediate Past Chair of the ABA’s Council of Appellate Lawyers.)

October 3, 2016

Governor Brown, SCOTUS blunt the effect of Justice Liu’s juvenile Miranda dissent, for now

When the Supreme Court denied review of a Court of Appeal opinion that held a 10-year-old had knowingly waived his Miranda rights, Justices Goodwin Liu, Mariano-Florentino Cuéllar, and Leondra Kruger dissented.  Also, Justice Liu wrote a dissenting statement, which Justice Cuéllar signed.

Justice Liu’s dissent was unusual, and not just because it was the first such separate statement regarding a denial of review in over 50 years.  The statement included an express suggestion that the Legislature take action regarding juvenile Miranda issues, and it seemed written in part as a brief to encourage the U.S. Supreme Court to grant certiorari in the case — In re Joseph H.

The Legislature responded positively to the dissent, passing a bill to require additional protections for juveniles prior to custodial interrogations.  Last week, however, Governor Jerry Brown vetoed the legislation.  But the veto was not a repudiation of Justice Liu’s dissent.  Rather, in his veto message, the governor said that, although he was “not prepared to put into law [the bill’s] categorical requirement that juveniles consult an attorney before waiving their Miranda rights,” the bill “presents profoundly important questions” and he vowed to “work with proponents, law enforcement and other interested parties to fashion reforms that protect public safety and constitutional rights.”

The dissent was not as effective at the U.S. Supreme Court level, at least not in this particular case.  That court today denied certiorari in Joseph H.

September 30, 2016

No conference held the week of September 26, 2016

The Court held no conference this week because it held an oral argument outreach session in San Diego.  Accordingly, no action was taken on petitions for review and no opinions were ordered published or depublished.

September 30, 2016

Supreme Court seeks amicus comments on State Bar funding request

As noted, after the Legislature adjourned without passing a State Bar dues bill, the Supreme Court directed the Bar to submit a request for an interim Special Regulatory Assessment to fund the Bar’s discipline system.  The request was filed today.  Also today, the court invited amicus curiae letters from “[a]ny person or entity wishing to comment on the State Bar’s Request.”

September 29, 2016

Former Chief Justice Malcolm Lucas dies

The Supreme Court announced that Malcolm Lucas — the 26th Chief Justice of California — died yesterday.  He was 89.lucas

After serving as a superior court and federal district court judge, Lucas was appointed to the Supreme Court in 1984 by Governor George Deukmejian.  Deukmejian elevated Lucas to chief justice in 1987, after the voters removed Chief Justice Rose Bird and two associate justices from the court.  Lucas retired from the court in 1996.

Lucas was praised by both his successors.  Chief Justice Tani Cantil-Sakauye called him “a man of great dignity and grace” who “came to the court during a time of upheaval in the judicial branch and he brought stability, peace, and leadership to the court.”  Former Chief Justice Ronald George said that Lucas “brought a steady hand to the stewardship of the California Supreme Court and our state’s vast judicial system” and that Lucas’s “wise counsel and collegial approach to the resolution of legal and administrative issues set an excellent example for me and for other judges, and helped pave the way for many of the ensuing reforms in California’s judiciary.”

Lucas had a dry sense of humor, which he occasionally displayed on the bench.  During argument in a case concerning the validity of a city ordinance prohibiting fortune telling, he told the attorney challenging the ordinance that the attorney’s client must already know how the case was going to come out and asked that the information be shared with the court.  At the outset of an argument in another case, a dispute between psychiatrists and psychologists over the scope of their respective authorities in the hospital setting, Lucas wished everyone “good morning,” and then said, “I’m sure there are many in the audience who are wondering, ‘what did he mean by that?'”

September 28, 2016

September oral argument videos available

The Supreme Court has added to its temporary archive videos of the oral arguments on the September calendar.

The court holds a special end-of-September calendar in San Diego tomorrow.

September 26, 2016

Summary of September 21, 2016 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, September 21, 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.

Review Granted

Hassell v. Bird, S235968 – Review Granted- September 21, 2016

This case presents the following issues: (1) Does an on-line publisher (Yelp) have a right to notice and an opportunity to be heard before a trial court orders removal of on-line content? (2) Does the statutory immunity provided by 47 U.S.C. section 230(c)(1) and (e)(3) bar a trial court from enjoining a website publisher’s actions and potentially enforcing the court’s order by way of contempt or other sanctions?

In a published decision, Hassell v. Bird (2016) 247 Cal.App.4th 1336, the Court of Appeal, First District, Division Four, held: (1) the on-line publisher was ‘aggrieved’ by the removal order and therefore had standing to challenge the validity of the removal order, having brought a nonstatutory motion to vacate that order; (2) the online publisher’s due process rights were not violated because of its lack of prior notice and a hearing on the removal order request; (3) the removal order did not violate the publisher’s First Amendment rights to the extent that it requires removal of the defendant’s defamatory reviews; (4) to the extent the removal order purports to apply statements other than the defendant’s defamatory reviews, it is an overbroad unconstitutional prior restraint on speech; and (5) the online publisher’s immunity from suit under the Communications Decency Act of 1996 (the CDA), 47 United States Code section 230, does not extend to the removal order.

Rand Resources v. City of Carson, S235735 – Review Granted- September 21, 2016

This case presents the following issues:  (1) Did plaintiffs’ causes of action alleging the breach of, and interference with, an exclusive agency agreement to negotiate the designation and development of a National Football League (NFL) stadium and related claims arise out of a public issue or an issue of public interest within the meaning of Code of Civil Procedure section 425.16? (2) Did plaintiffs’ causes of action arise out of communications made in connection with an issue under consideration by a legislative body?

The Court of Appeal, Second District, Division One, held in a published decision, Rand Resources v. City of Carson (2016) 247 Cal.App.4th 1080, that “(1) city’s alleged deception about its dealings with competitor was not protected speech or petitioning activity; (2) mayor’s allegedly false denial that he knew the competitor was not protected free speech or petitioning activity; and (3) developer’s alleged attempt to usurp developer’s rights under agency agreement did not arise from protected activity under anti-SLAPP statute.”

Vasilenko v. Grace Family Church, S235412 – Review Granted- September 21, 2016

This case presents the following issue: 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?

The Court of Appeal, Third District, held in a published decision, Vasilenko v. Grace Family Church (2016) 248 Cal.App.4th 146, that the church owed a duty of care to the church visitor.  It held summary judgment was improper because there were genuine issues of material fact as to: (1) whether the church’s act in directing visitors to park in the overflow lot across street was a legal cause of visitor’s injuries; and (2) whether the church failed to reasonably train and educate a parking lot attendant.

Review Denied (with dissenting justices)

None.

Depublished

None.

September 19, 2016

Summary of September 14, 2016 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, September 14, 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.

Review Granted

United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board, S235903 – Review Granted – September 14, 2016

This case presents questions concerning the entitlement of substitute teachers and other on-call paraprofessional employees to unemployment insurance benefits when they are not called to work during a summer school term or session.

The Court of Appeal, First District, Division One, held in a published decision, United Educators of San Francisco AFT/CFT v. California Unemployment Insurance Appeals Board (2016) 247 Cal.App.4th 1235, that public school employees with reasonable assurance of reemployment for the following fall term are not eligible to receive unemployment insurance during the intervening summer term.

Certified Question of State Law Accepted

Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, S236177- Request to Answer State Law Question Granted – September 14, 2016

The United States Court of Appeals for the Second Circuit asked the Supreme Court to decide questions of California law. The court ordered briefing deferred pending a determination whether to restate the questions presented.

The issues as stated by the Second Circuit are: “1. Where the insurance policies of two insurance companies (identified in this question as A and B) cover the same risk, the policy of company A is primary and contains no ‘other insurance’ clause [footnote omitted], and the policy of company B, which is also primary, contains an ‘other insurance’ clause stating, ‘This insurance is excess over: . . . Any of the other insurance or your self-insurance plan that covers a loss on the same basis,’ [footnote omitted] is company A entitled under California law to equitable contribution from company B? [Footnotes omitted.] [¶] 2. Under the circumstances described above and where the amount Company A paid to settle a case exceeds the policy limit of Company B’s policy, is a clause in the insurance policy of Company B stating, ‘All payments made under any local policy issued to you by us or any other insurance company will reduce the Limits of Insurance of this policy’ enforceable under California law?”

Review Denied (with dissenting justices)

None.

Depublished

None.

September 19, 2016

Supreme Court decision could lead to less environmental impact reports

In Friends of the College of San Mateo Gardens v. San Mateo County Community College District, the Supreme Court today gives more latitude to public agencies in determining whether project changes require a new environmental impact report (EIR) (after an EIR was prepared for the original project) or a first EIR (when no previous EIR was prepared because a negative declaration was adopted for the original project).  The Court of Appeal had concluded that changes to a project were a new project and an EIR was thus necessary.  In a unanimous opinion by Justice Leondra Kruger, the Supreme Court holds that the need for an EIR is not based “on any abstract characterization of the project as ‘new’ or ‘old,'” but, rather, on a determination of “whether the previous environmental document retains any relevance in light of the proposed changes and, if so, whether major revisions to the previous environmental document are nevertheless required due to the involvement of new, previously unstudied significant environmental impacts.”

The court reverses the First District, Division One, Court of Appeal.  It also disapproves (although not expressly) of a 2006 decision by the Third District Court of Appeal, and agrees with a 2007 decision by the Second District, Division Two.

September 16, 2016

Environmental impact report opinion filing Monday

On Monday morning, the Supreme Court will file its opinion in Friends of the College of San Mateo Gardens v. San Mateo County Community College District, which was argued on the early-May calendar.  If the case was argued over four months ago and there’s a 90-day limit for issuing opinions, why hasn’t there been a decision yet?  It’s because, a week after argument, the court vacated submission and asked for supplemental briefing.  A new 90-day period started when the supplemental briefing was completed at the end of June.

The Friends case isn’t even the last early-May case to be decided.  That honor goes to People v. Macabeo, in which the court is dealing with the aftermath of the U.S. Supreme Court’s (indirect) reversal of a California Supreme Court decision about warrantless cell phone searches.  The court asked for post-argument supplemental briefing in Macabeo, too, but, unlike in Friends, the court waited until almost the 90th day after argument to order more briefing.  Supplemental briefing was completed — and the 90-day clock restarted — just last week, so a decision is not due until early December.

This is the time of year when there’s usually a drought in Supreme Court opinions, because no cases are argued in July or August.  That drought is occasionally broken by a trickle of opinions in cases, like Friends and Macabeo, when submission is vacated for supplemental briefing.

The Friends case raises this question:  When a lead agency performs a subsequent environmental review and prepares a subsequent environmental impact report, a subsequent negative declaration, or an addendum, is the agency’s decision reviewed under a substantial evidence standard of review (Mani Brothers Real Estate Group v. City of Los Angeles (2007) 153 Cal.App.4th 1385), or is the agency’s decision subject to a threshold determination whether the modification of the project constitutes a “new project altogether,” as a matter of law (Save our Neighborhood v. Lishman (2006) 140 Cal.App.4th 1288)?

Not only did the court direct the parties to file supplemental briefs, it also requested a supplemental brief from the California Natural Resources Agency, with the Governor’s Office of Planning and Research.  The additional briefs were to address:  (1) Under California Environmental Quality Act (CEQA) Guidelines section 15162, what standard of judicial review applies to an agency’s determination that no environmental impact report (EIR) is required as a result of proposed modifications to a project that was initially approved by negative declaration or mitigated negative declaration?  (See generally Benton v. Board of Supervisors (1991) 226 Cal.App.3d 1467, 1479-1482.)  (2) Does CEQA Guidelines section 15162, as applied to projects initially approved by negative declaration or mitigated negative declaration rather than EIR, constitute a valid interpretation of the governing statute?  (Compare Bowman v. City of Petaluma (1986) 185 Cal.App.3d 1065, 1073-1074 with Benton at pp. 1479-1480.)

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

September 14, 2016

Supreme Court will answer Second Circuit insurance questions . . . in some form

The Supreme Court today agreed to answer questions of California insurance law posed by the Second Circuit Court of Appeals.  However, it’s not clear yet what exactly those questions will be.  In Migdal Insurance Company v. Insurance Company of the State of Pennsylvania, the Supreme Court granted the federal appellate court’s request, but deferred briefing “pending the court’s determination whether to restate the question of California law to be decided.”

When the court last took a similar action, it was more than six months before the court restated the question.

 

 

 

September 14, 2016

Assistant Clerk Jorge Navarrete will become new Supreme Court Clerk

Chief Justice Tani Cantil-Sakauye today announced the appointment of Jorge Navarrete as the new (and 27th) Supreme Court Clerk/Administrator.  jorge_e_navarrete_dd610f2c-3141-40de-a4c7-154f873340c9-prvNavarrete is currently the court’s Assistant Clerk/Administrator and has served the court for 20 years.  The announcement notes that Navarrete — a native of Guadalajara, Mexico — is the first Latino to hold the Clerk/Administrator position.

Navarrete will replace Frank McGuire, who is retiring at the end of this month.  McGuire said he is “thrilled that the court has selected Jorge.”  Similarly, McGuire’s predecessor, Frederick “Fritz” K. Ohlrich, praised Navarrete as “smart, energetic, [and] dependable,” and said he is “confident [Navarrete] will serve the Supreme Court, the appellate courts and practitioners, and the public very well.”